1
EXHIBIT 10.13
EXTENSION AND FOURTH MODIFICATION OF LEASE
THIS EXTENSION AND FOURTH MODIFICATION OF LEASE dated the 30th day of
March 2000, by and between THETA HOLDING COMPANY, L.P., a New Jersey limited
partnership (hereinafter referred to as "Landlord"); and BISYS MANAGEMENT
COMPANY, a Delaware corporation (hereinafter referred to as "Tenant").
WITNESSETH THAT:
WHEREAS, Overlook at Great Notch ("Overlook"), Landlord's predecessor in
title, and Bisys, Inc. entered into a certain lease dated January 9, 1991 (the
"Original Lease", which as amended, shall hereinafter be collectively referred
to as the "Lease") affecting certain premises (consisting of approximately 2,831
square feet) on the eighth floor of the building known as Overlook at Great
Notch (hereinafter the "Building") located at 150 Clove Road, Little Falls,
County of Passaic, State of New Jersey, which land is also improved with
landscaping, parking facilities and other improvements, all of which, together
with the Building and underlying land, shall hereinafter be known as and
referred to collectively as the "Project" or "Property"; and
WHEREAS, Overlook and Bisys, Inc. entered into a First Modification of
Lease dated June 3, 1992, whereby the parties added 1,321 square feet to the
eighth floor premises covered by the Original Lease; and
WHEREAS, the Prudential Insurance Company of America, successor in
interest to Overlook and Landlord's immediate predecessor in title, and Bisys,
Inc. entered into an Extension and Second Modification of Lease dated December
3, 1993, whereby Bisys, Inc. leased from Landlord 5,793 rentable square feet of
space on the tenth floor of the Building, and simultaneously therewith
surrendered to Landlord all space previously leased by Bisys, Inc. on the eighth
floor of the Building; and
WHEREAS, Landlord and Bisys, Inc. entered into an Extension and Third
Modification of Lease dated October 11, 1995, whereby Bisys, Inc. leased from
Landlord an additional 2,666 rentable square feet contiguous to the 5,793
rentable square feet on the tenth floor of the Building previously leased by
Bisys, Inc., making a total of approximately 8,459 rentable square feet in the
Building which shall be hereinafter referred to as the "Current Premises"; and
WHEREAS, Bisys, Inc. and Tenant are subsidiaries of The Bisys Group; and
WHEREAS, Bisys, Inc. has assigned the aforementioned Lease to the Tenant,
and Tenant has accepted such assignment, transfer and conveyance of all of
Bisys, Inc.'s rights, liabilities and leasehold interests in, to and under the
Lease; and
WHEREAS, in consideration for the Extension and Fourth Modification of
Lease, The Bisys Group agrees to guarantee the rights and obligations of Tenant
pursuant to the Lease; and
WHEREAS, Landlord and Tenant desire to spread said Lease over an
additional approximately 2,434 rentable square feet contiguous to the Current
Premises on the 10th floor of the Building, making a total of approximately
10,893 rentable square feet in the Building and to modify certain other
provisions of said Lease in connection with the taking of said additional
approximately 2,434 rentable square feet; and
WHEREAS, the Lease is in full force and effect and Landlord and Tenant are
in compliance with all terms and conditions thereof; and
WHEREAS, Tenant and Landlord desire to modify the Lease as hereinafter set
forth;
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and valuable consideration having been exchanged between
the parties the receipt of which is hereby acknowledged, Landlord and Tenant
hereby agree to modify the Lease, and The Guarantor hereby agree to guarantee
the rights and obligations of Tenant, as follows:
1. Guarantee. The Bisys Group hereby guarantees the full performance of all of
the terms, covenants and conditions of the Lease to be kept and performed by the
Tenant, including the covenant to pay rent and other charges to accrue
thereunder.
1
2
2. Additional Space. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord approximately 2,434 rentable square feet, subject to final
measurement, located on the tenth floor of Building (the "Additional Space"), as
shown on the attached Exhibit "A". Coupled with Tenant's Current Premises of
approximately 8,459 rentable square feet located on the tenth floor of Building,
the new "Enlarged Premises" totals approximately 10,893 rentable square feet,
subject to final measurement of the Additional Space.
3. Commencement Date. The date of commencement for the Additional Space (the
"Additional Space Commencement Date") shall be the date of substantial
completion of Landlord's Work, as hereinafter defined, in the Additional Space,
which is projected to be three (3) months from Landlord's receipt of final
approved Working Drawings, as hereinafter defined, or such earlier date as
Tenant takes possession or commences use of the Additional Space for any purpose
other than construction. The Additional Space Commencement Date and the
commencement of rental payment hereunder shall not be extended or delayed for
any period of time that substantial completion of Landlord's Work and the
delivery of possession of the Additional Space is delayed beyond that date which
is three (3) months from Landlord's receipt of final approved Working Drawings,
as hereinafter defined, by any reason of: (i) special work, changes, alterations
or additions required or made by Tenant in the Additional Space; (ii) delays
and/or default on the part of Tenant in submitting on a timely basis any plans
and/or specifications, supplying information, approving plans, specifications or
estimates, or giving authorizations required hereunder or otherwise for the
completion of Landlord's Work; and/or (iii) delays otherwise caused in whole or
in part by Tenant. However, in no event shall the Additional Space Commencement
Date and the commencement of rental payment hereunder be later than July 1,
2000. The foregoing notwithstanding, if the Additional Space shall not be
substantially complete and the Tenant shall not have taken possession or
commenced use of the Additional Space on or before the date which shall be one
hundred fifty (150) days from the date Landlord commences construction of
Landlord's Work as herein defined, as such date may be extended by the number of
days, if any, of any (i) Tenant Delays, as herein defined; (ii) Force Majeure
delays; and/or (iii) any other delays pursuant to this Section, then Tenant
shall receive a credit at the next monthly rent payment date equal to ninety
five dollars ($95) for each business day the Commencement Date is delayed beyond
such one hundred fifty (150) day period, as such may be extended. "Force
Majeure" means, with respect to the occurrence of a specified date or event, any
and all events beyond the reasonable control of Landlord, including, without
limitation, strikes, lockouts, acts of God, enemy actions, civil commotion or
war, casualties and governmental actions, but excluding lack of funds, which
events delay the occurrence of the specified date or event in question. If the
Additional Space Commencement Date occurs on any day other that the first day of
a month, then the Basic Rent will be pro-rated on a daily basis (i.e., annual
rental divided by 365 days, or 366 days in a leap year). As of the Additional
Space Commencement Date, the Additional Space shall be deemed to be a part of
the Premises demised under the Lease.
4. Extension Term. The Term of the Lease for the Enlarged Premises is hereby
extended so that the Termination Date shall be June 30, 2007.
5. Basic Annual Rent. Tenant's Basic Annual Rent for the Current Premises and
the Additional Space, subject to adjustment to reflect the final measurement of
rentable square feet of the Additional Space, from and after the Additional
Space Commencement Date shall be payable as follows:
- --------------------------------------------------------------------------------
Rent per
Rentable Monthly Rent Annual Rent
Sq. Ft.
- --------------------------------------------------------------------------------
Through the 5th anniversary of
the Additional Space
Commencement Date:
Current Premises $28.50 $20,090.13 $241,081.50
Additional Space 28.50 5,780.75 69,369.00
---------- -----------
Enlarged Premises 28.50 25,870.88 310,450.50
2
3
From and after the 5th
anniversary of the Additional
Space Commencement Date through
the Termination Date:
Current Premises $31.00 21,852.42 262,229.00
Additional Space 31.00 6,287.83 75,454.00
--------- ---------
Enlarged Premises 31.00 28,140.25 337,683.00
6. Tenant's Percentage Share. From and after the Additional Space Commencement
Date, Tenant's Share of Operating Expenses and Taxes as provided for in Item 6
of Exhibit "B" of the Original Lease shall be increased to 2.56% (10,893 sq. ft.
divided by 425,000 sq. ft.), subject to adjustment to reflect the final
measurement of rentable square feet of the Additional Space.
7. Base Year. From and after the Additional Space Commencement Date, Tenant's
Base Year for Operating Expenses and Tax Increases as provided for in Item 7 of
Exhibit "B" of the Original Lease shall be calendar year 2000.
8. Tenant Electric. Tenant shall pay an Electric Energy Charge for the
Additional Space in accordance with Article 5.2 and Exhibit "B" of the Original
Lease. At Landlord's option, separate meters for such utilities and services may
be installed for the Enlarged Premises, and upon demand, Tenant shall
immediately pay Landlord for the installation, maintenance and/or repair of such
meters and for all charges with respect to consumption of such utilities or
services so metered or provided.
9. Landlord's Work.
9.1 Plans. (a) Tenant and Landlord have approved the construction drawings
(hereinafter the "Working Drawings") prepared by The ISS Architectural Group,
Inc. dated January 6, 2000, as revised on February 22, 2000, for the
installation of Tenant's initial improvements to the Additional Space and
improvements and/or alterations to the Current Premises (the "Improvements").
Any review or approval by Landlord of the Working Drawings is solely for
Landlord's benefit, and without any representation or express or implied
warranty to Tenant with respect to the adequacy, correctness or efficiency
thereof, its compliance with laws or otherwise.
(b) Any and all change orders which Tenant may initiate during the
course of construction are also subject to Landlord's approval which shall not
be unreasonably withheld or delayed. Notwithstanding anything contained herein,
Landlord shall not be required to perform, and Tenant shall not request, work
which would (i) require changes to structural components or infrastructure of
the Building or the exterior design of the Building, (ii) require any material
modification to the Building's mechanical installation or installations outside
the Current Premises and/or the Additional Space, (iii) not comply with all
applicable laws, rules, regulations, and requirements of any governmental
department having jurisdiction over the construction of the improvements in the
Building and/or Additional Space, (iv) be incompatible with the Building plans
filed with the Township of Little Falls or with the occupancy of the Building as
an office building, (v) delay the completion of the Additional Space or any part
thereof beyond a normal construction period for all such work or (vi) not meet
minimum Building Standards as detailed on Exhibit "B" attached hereto. Any
changes required by any governmental department affecting the construction of
the Additional Space shall not be deemed to be a violation of any provision of
this Lease or a Tenant Delay and shall be unilaterally accepted by Landlord and
Tenant.
9.2 Landlord's Work. All work shown on the final approved Working
Drawings, excluding any telephone/data/communication cabling work, or any such
portion thereof, if any, specifically designated as Tenant's Work, is
collectively called "Landlord's Work". The Additional Space shall be finished by
Landlord in accordance with the final approved Working Drawings in a good and
workmanlike manner. Landlord shall obtain all permits and inspections required
for occupancy, exclusive of any special permits or approvals relating to
Tenant's equipment or business operations, and shall furnish all labor, material
and equipment required to complete Landlord's Work described herein. Landlord
shall be responsible for the costs and expenses in connection with the Design
Development Documents, the Working Drawings, permits and inspections to be
obtained by Landlord, Landlord's Work and Landlord's construction supervisory
fees which shall not exceed 2.5% of the Improvement Cost as defined,
(collectively referred to as the "Improvement Cost") up to the initial aggregate
of $13.00 per rentable square feet of the Additional Space, plus $6.00 per
rentable square feet of Current Premises, for a total of $82,396.00, hereinafter
referred to as the "Improvement Allowance", except as set forth in Section 9.4
below. In the event that the Improvement Cost shall exceed the Improvement
Allowance, then any amount in excess of the Improvement Allowance shall be paid
by Tenant to Landlord in accordance with Section 9.5 below.
3
4
In the event that the Improvement Cost shall be less than the Improvement
Allowance, Tenant shall be entitled to apply any remaining amount to rent. The
Improvements shall, upon installation, become the property of Landlord and shall
be surrendered by Tenant to Landlord at the end or other expiration of the term
of the Lease.
Tenant agrees that Landlord's Work or any part thereof may be performed,
furnished, installed, and provided by or through contractors, suppliers and/or a
construction manager of the Landlord's choice.
Tenant and Landlord agree that Landlord's Work in Construction Area I, as
shown on Exhibit "C" attached hereto and by this reference made a part hereof,
will be performed during normal business hours, with the exception of any core
drilling, jack hammering or "shooting" of additional anchors in the ceiling if
provided for in the approved Working Drawings. It is further agreed that
Landlord's Work in Construction Area II, as shown on Exhibit "C" shall be
performed after normal business hours, or on weekends, unless such work shall
not unreasonably interfere with Tenant's normal operations within the Current
Premises.
If Landlord shall be delayed in substantially completing Landlord's Work
as a direct result of any act, neglect, failure, or omission of Tenant, its
agents, servants, employees, contractors, or subcontractors, including without
limitation any of the following, such delay shall be deemed a Tenant Delay:
a) Tenant's failure to deliver the Design Development Documents or
Tenant's delay in submitting objections to or approval of the Design
Development Documents and/or the Working Drawings in accordance with
Section 9.1 above; or
b) Tenant's delay in submitting or approving any other drawing, plans
or specifications or in supplying information; or
c) Tenant's request for non-standard building materials, finishes, or
installations which are not readily available at the time Landlord
is ready to install same; or for standard building materials,
finishes, or installations which are not readily available at the
time Landlord is ready to install same and for which a substitute
material, finish or installation of equal quality is available; or
d) Tenant's changes in approved drawings, plans, or specifications
submitted to or prepared by Landlord; or
e) the performance of work by a person, firm, or corporation employed
by Tenant which interferes with implementation of Landlord's Work
and delays in the completion of such work by that person, firm or
corporation; or
f) by reason of Tenant's Work which unreasonably interferes with
implementation of Landlord's Work including, without limitation, any
delay in the preparation of mechanical and electrical drawings for
the Additional Space by reason of additional time required to
reflect Tenant's Work.
g) Tenant's request for Landlord's Work to be performed after normal
business hours or on weekends, unless it has been agreed that such
work is to be performed during those hours as specifically set forth
herein.
In the event the Improvement Cost exceeds the Improvement Allowance, Tenant
shall pay to Landlord, as Additional Rent, a sum equal to any "Additional Cost
to Landlord" in completing Landlord's Work resulting from Tenant Delay, but only
to the extent that the Improvement Cost exceed the Improvement Allowance.
"Additional Cost to Landlord" shall mean the cost over and above such cost as
would have been the aggregate cost to Landlord of completing Landlord's Work had
there been no Tenant Delay. Any such sums shall be paid to Landlord within ten
(10) days after Landlord bills Tenant therefor. Such costs shall be collectible
whether or not the term of the Additional Space shall have commenced.
Unless otherwise provided herein, in the event that either party hereto
submits any drawings, plans, or other materials to the other party for their
approval, the receiving party shall, within ten (10) business days thereafter,
respond in writing, either approving such materials or requesting the other
party to make specific changes therein. Unless otherwise provided herein, the
receiving party's failure to respond within the time period set forth in the
preceding sentence shall be deemed approval of such submission.
4
5
Landlord's Work shall be deemed "substantially complete" upon receipt of a
Certificate of Occupancy for the Additional Space and the Additional Space being
in such condition the Tenant can legally operate Tenant's business in the
Additional Space. Landlord shall give Tenant five (5) business days prior
written notice of the date on which substantial completion is anticipated.
Notwithstanding substantial completion, Tenant shall be permitted to submit a
"Punchlist" to Landlord within thirty (30) days following the Additional Space
Commencement Date. Such Punchlist shall list items that are incomplete or
defective. Upon receipt of the Punchlist, Landlord shall promptly commence
correction of those items appropriately listed.
9.3 Tenant's Work. Tenant's Work shall mean any work performed by or on
behalf of Tenant in the Additional Space which is not included in Landlord's
Work or otherwise performed by Landlord on behalf of Tenant. Contractors and
subcontractors doing Tenant's Work shall be of Tenant's choice but shall be
subject to Landlord's prior approval, which shall not be unreasonably withheld,
and such rules and regulations as Landlord, in its reasonable discretion, may
impose. Notwithstanding the foregoing, the approval of any contractors or
subcontractors performing any alterations or modifications which affects the
plumbing, sprinkler, heating, ventilation or air conditioning systems or the
electrical risers, conduits, meters, panel boxes, transformers, switch gear or
the wiring thereto, or affects the structure of the Building, shall rest solely
within Landlord's determination. TENANT'S WORK MAY BE DONE DURING NORMAL WORKING
HOURS PRIOR TO THE ADDITIONAL SPACE COMMENCEMENT DATE, SUBJECT TO AND IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LEASE, PROVIDED LANDLORD'S WORK
HAS PROGRESSED SUFFICIENTLY THAT TENANT'S WORK WILL NOT UNREASONABLY INTERFERE
WITH REMAINING LANDLORD'S WORK. Tenant shall receive, without charge, water,
heat and ventilation during normal working hours. Tenant shall pay for all
rubbish removal service in connection with its work.
IT IS UNDERSTOOD AND AGREED THAT TENANT'S ACCESS AND ENTRY PRIOR TO THE
ADDITIONAL SPACE COMMENCEMENT DATE TO MAKE ITS INSTALLATIONS IS CONDITIONED UPON
TENANT'S CONTRACTORS, SUBCONTRACTORS AND MATERIAL SUPPLIERS WORKING IN HARMONY
AND NOT UNREASONABLY INTERFERING WITH THE LABOR FORCES EMPLOYED BY LANDLORD OR
ANY OTHER TENANT, OR THEIR CONTRACTORS, SUBCONTRACTORS AND MATERIAL SUPPLIERS.
If at any time such entry shall cause disharmony or unreasonable interference,
then Tenant's right to such access and entry may be withdrawn by Landlord
immediately, however, such entry will be restored if within twenty four (24)
hours notice the Tenant cures such interference. Workmen's Compensation, General
Liability and Property Damage insurance, all in amounts and with companies and
on forms reasonably satisfactory to Landlord, shall be provided and at all times
maintained by Tenant or its contractors engaged in the performance of Tenant's
Work before proceeding with any Tenant's Work. CERTIFICATES FOR SUCH INSURANCE
SHALL BE FURNISHED TO LANDLORD PRIOR TO THE COMMENCEMENT OF ANY TENANT'S WORK.
Access and entry by Tenant before the Additional Space Commencement Date, in
accordance with Tenant's Work above, shall be deemed to be under all of the
terms, covenants, provisions and conditions of the Lease, except as to the
covenant to pay rent. Landlord shall not be liable in any way for any injury,
loss or damage which may occur to any of Tenant's decorations or installations
so made prior to the commencement term of the Additional Space, except to the
extent that any such injury, loss or damage is caused by the gross negligence
and/or willful misconduct of Landlord or Landlord's employees. Moreover, any
injury, loss or damage as a result of Tenant's Work which may occur to
Landlord's Work, or to any of the material or equipment used to complete
Landlord's Work, shall be replaced or repaired at Landlord's sole option, and
Tenant shall pay Landlord for all costs and expenses related thereto promptly
after the rendering of bills. Tenant shall perform all of Tenant's Work strictly
in compliance with all required governmental requirements and shall obtain all
required governmental permits for such work, at Tenant's sole cost and expense.
9.4 Change Orders. Any and all excess costs and expenses in connection
with change orders or other modifications to the final approved Working Plans
which Tenant may initiate during the course of construction shall be paid by
Tenant to Landlord promptly after the rendering of bills. No credit shall be
granted for the omission of Landlord's Work where no replacement in kind is
made.
9.5 Improvement Costs. In the event that the Improvement Cost shall exceed
the Improvement Allowance, then any amount in excess shall be paid by Tenant to
Landlord as Additional Rent. Said amounts may be paid in one lump sum payment on
the Additional Space Commencement Date or together with interest at an annual
rate of twelve percent (12%), in 42 equal installments on the first of each
month commencing as of the Additional Space Commencement Date.
5
6
10. Parking Spaces. From and after the Additional Space Commencement Date, the
number of unreserved parking spaces provided for in Item 10 of Exhibit "B" of
the Original Lease, as amended, shall be increased from twenty four (24) total
spaces to thirty two (32) total spaces.
11. Option to Renew. The Option to Renew set forth in Article 45 of said
Original Lease, as modified in the Extension and Third Modification of Lease, is
hereby deleted in its entirety and the following is hereby inserted in lieu
thereof:
Article 45 - Option to Renew
(a) By written notice delivered to Landlord on or before the date which is
twelve (12) months prior to the expiration of the Term of this Lease (the
"Exercise Date"), "time being of the essence", provided that Tenant is not
default in any respect under the terms and conditions of this Lease beyond any
applicable notice and grace period on the Exercise Date and the Termination Date
and Tenant occupies the entire Enlarged Premises, Tenant shall have the option
to extend the term of this Lease for one (1) five (5) year optional renewal
period commencing on the first day following the Termination Date and ending on
the date which is five (5) years thereafter (hereinafter called the "Renewal
Term") upon the same terms and conditions hereof except that the Basic Rent to
be paid by Tenant for the Renewal Term, if exercised, shall be 100% of the then
annual fair market rental value of the Premises, as determined as hereinafter
set forth, and to be effective on the first day of the Renewal Term but in no
event less than the rent, including Additional Rent pursuant to Article 3 of the
Original Lease, payable by Tenant on the Termination Date. In this regard, no
earlier than one hundred fifty (150) days and no later than one hundred five
(105) days prior to the Termination Date, which forty-five (45) day period is
hereinafter referred to as the "Exchange Period", Landlord shall submit to
Tenant a statement of Landlord's determination of the annual fair market value
for the Premises for the Renewal Term, which statement shall show the basis upon
which such determination was made. Landlord's determination of the annual fair
market rental value shall give due consideration to the rents charged by
Landlord for all leases of comparable space (excluding exercise of renewal
rights where the tenant had a right of renewal under the terms of its lease)
entered into by Landlord for the twelve (12) month period preceding the first
day of the Exchange Period, except that if there were no such leases or such
leases were so peculiar to a particular situation that no true comparables would
be derived, Landlord may expand the basis of its determination to include the
rents being charged by other owners of comparable first class office buildings
located in the northern New Jersey area. Within ten (10) business days after
receipt of Landlord's determination, Tenant may either (i) rescind the exercise
of its option, (ii) accept Landlord's determination of the annual fair market
rental value or (iii) provide Landlord with its own determination of the annual
fair market rental value, including the basis upon which such determination was
made. If Tenant elects option (iii), then Landlord and Tenant shall, for a
period of thirty (30) days after Landlord's receipt of Tenant's determination,
negotiate in good faith to determine the annual fair market rental value and if
Landlord or Tenant are unsuccessful in reaching agreement within such thirty
(30) days, either Landlord and Tenant may cause the issue to be arbitrated as
hereinafter in this Article 45 set forth. If neither party choose to cause the
issue to be arbitrated as hereinafter in this Article 45 set forth, this option
to renew shall automatically be null and void and of no force or effect twenty
(20) days following the thirty (30) day period following Landlord's receipt of
Tenant's determination of the annual fair market rental value. Except for the
Monthly Basic Rent, the Renewal Term shall be upon all of the terms, covenants
and conditions contained in this Lease.
(b) In the event either Landlord or Tenant elect to arbitrate the issue of
the annual fair market rental value, such issue shall be determined by
arbitration as hereinafter provided. Landlord and Tenant shall each appoint a
fit and impartial person as arbitrator who shall have at least ten (10) years'
experience in the commercial real estate industry in the northern New Jersey
area (a "Qualified Arbitrator"). Such appointment shall be indicated in writing
by each party to the other within ten (10) days following the thirty (30) day
period following Landlord's receipt of Tenant's determination of the annual fair
market rental value, as aforesaid. If the arbitrators are unable to determine
the annual fair market rental value as set forth herein within twenty (20) days
of their appointment, the arbitrators so appointed shall immediately appoint a
third Qualified Arbitrator. In case either party shall fail to appoint a
Qualified Arbitrator within a period of ten (10) business days after written
notice from the other party to make such appointment, the American Arbitration
Association, or its successor (the "AAA") shall appoint such Qualified
Arbitrator(s). The two (2) arbitrators so appointed shall appoint the third
(3rd) arbitrator, as aforesaid, otherwise the AAA shall similarly make such
appointment. The arbitrators shall proceed with all reasonable dispatch to
determine the annual fair market rental value and under all circumstances shall
be bound by the terms of this Lease and shall not add to,
6
7
subtract from, or otherwise modify such provisions. The arbitrators sole
discretion in determining the question submitted shall be limited to selecting
one of the annual fair market rental values submitted by Landlord or Tenant. The
decision of the arbitrators shall, in any event, be rendered within thirty (30)
days after the appointment of the first and second arbitrators and such decision
shall be in writing and in duplicate with one counterpart delivered to each
Landlord and Tenant. The arbitration shall be conducted in accordance with the
rules of the AAA and applicable New Jersey law, and a decision of a majority of
the arbitrators shall be binding, final and conclusive upon Landlord and Tenant.
The fees of the arbitrators and the expenses incident to the proceedings shall
be shared equally between Landlord and Tenant.
(c) In the event the determination of the Monthly Basic Rent is not
finalized until after the first day of the Renewal Term, Tenant shall continue
paying the Monthly Basic Rent payable for the last year of the term of this
Lease, and Additional Rent as provided in this Lease. At such time as the
Monthly Basic Rent is determined, the Monthly Basic Rent shall be retroactively
adjusted to the first day of the Renewal Term, and if the Monthly Basic Rent for
the Renewal Term is greater than the Monthly Basic Rent for the Lease Term,
Tenant shall, within ten (10) business days of Landlord's written demand, pay to
Landlord the increased Monthly Basic Rent for the period between the first day
of the Renewal Term and the last day of the month in which Landlord's demand for
such payment was made, and commencing on the first day of the month following
the month in which such demand for the lump sum payment was made by Landlord,
Tenant shall start making monthly installments of Monthly Basic Rent in the
amount as finally determined.
12. Environmental Laws. Article 46, ECRA, of said Lease is hereby deleted in its
entirety and the following is hereby inserted in lieu thereof:
Article 46 - Environmental Laws
Tenant and Landlord shall comply with all Environmental Laws (as hereinafter
defined) concerning the proper storage, handling and disposal of any Hazardous
Material (as hereinafter defined) with respect to the Project. Environmental
Laws shall mean any law governing the use, storage, disposal or generation of
any Hazardous Material (as hereinafter defined), including without limitation,
the Industrial Site Recovery Act, ISRA, as amended and the Resource Conservation
and Recovery Act of 1976, as amended. Hazardous Material shall mean any such
substances, materials and wastes which are or become regulated under any
Environmental Law; or which are or become classified as hazardous or toxic under
any Environmental Law; and explosives and firearms, radioactive material,
asbestos, and polychlorinated biphenyls. Except for small amounts Hazardous
Material typically used in the operation of general offices and machinery and
equipment typically used or operated therein, which are in appropriate
containers, Tenant shall not generate, store, handle or dispose of any Hazardous
Material in, on, or about the Property without the prior written consent of
Landlord. In the event that Tenant is notified of any investigation or violation
of any Environmental Law arising from Tenant's activities at the Property,
Tenant shall immediately deliver to Landlord a copy of such notice. In such
event or in the event Landlord reasonably believes that a violation of
Environmental Law exists, Landlord may conduct such tests and studies relating
to compliance by Tenant with Environmental Laws or the alleged presence of
Hazardous Materials upon the Property as Landlord deems desirable, and if in
fact Tenant has violated Environmental Laws, all such tests and studies shall be
completed at Tenant's expense. Landlord's inspection and testing rights are for
Landlord's own protection only, and Landlord has not, and shall not be deemed to
have assumed any responsibility to Tenant or any other party for compliance with
Environmental Laws, as a result of the exercise, or non-exercise of such rights.
Tenant shall indemnify, defend, protect and hold harmless the Landlord, any
Mortgagee ("Mortgagee" shall mean any holder of a mortgage, deed of trust or
other security instrument encumbering the Project or Landlord's interest therein
or any ground lessor of the Project), the property manager and the leasing
manager for the Project and their respective directors, officers, agents,
shareholders, partners and employees (collectively referred to herein as the
"Indemnities") from any and all loss, claim, expense, liability and cost
(including attorney's fees) arising out of or in any way related to the presence
of any Hazardous Material introduced to the Premises during the Lease term by
any party other than Landlord and/or the Indemnities or introduced to the
Property by Tenant, or any of its officers, employees, agents, contractors,
licensees, visitors, guests or invitees. If any Hazardous Material is released,
discharged or disposed of on or about the Project and such release, discharge or
disposal is not caused by Tenant or other occupants of the Premises, or their
employees, agents, or contractors, such release, discharge or disposal shall be
deemed casualty damage under Article 17 to the extent that the Premises are
affected thereby; in such case, Landlord and Tenant shall have the obligations
and rights respecting such casualty damage provided under such Article.
7
8
13. Environmental Matters. The following is hereby added to the Lease as Article
48:
Article 48 - Environmental Matters
(a) (i) Tenant represents and warrants that it is not an "Industrial
Establishment" as that term is defined in the Industrial Site Recovery Act,
N.J.S.A. 13:Ik-6 et sea. as same may be amended from time to time (the "Act").
Tenant shall not do or suffer anything that will cause it to become an
Industrial Establishment under the Act during the term of the Lease. Landlord
may from time to time require Tenant at Tenant's sole expense to provide proof
satisfactory to Landlord that Tenant is not an Industrial Establishment. In the
event that Tenant now is or hereafter becomes an Industrial Establishment (which
event shall cause Tenant to be in Default of this Lease) Tenant shall comply
with all conditions as set forth below.
(ii) Tenant agrees that it shall, at its sole cost and expense,
fulfill, observe and comply with all of the terms and provisions of the Act and
all rules, regulations, ordinances, opinions, orders and directives issued or
promulgated pursuant to or in connection with said Act by the Department of
Environmental Protection ("DEP"). (The Act and all said rules, regulations,
ordinances, opinions, orders and directives are hereinafter collectively
referred to as "ISRA"). Without limiting the forgoing, upon Landlord's request
therefor, and in all events no later than sixty (60) days prior to "closing,
terminating or transferring operation" (as said terms are defined in ISRA) which
would be subject to an obligation to comply with ISRA if an industrial
establishment is present at the Premises, Tenant at its sole cost and expense,
shall provide the Landlord with a true copy of:
(A) an opinion letter from DEP (or such other agency or body
which shall then have jurisdiction over ISRA matters) in form satisfactory to
Landlord's counsel, stating the ISRA does not apply to Tenant, Tenant's use and
occupancy of the Premises and to the closing, terminating or transferring of
operations at the Premises; or
(B) a Negative Declaration (as said term is defined in ISRA)
duly approved by DEP (or such other agency or body then having jurisdiction over
ISRA matters); or
(C) a Remedial Action Workplan (as said term is defined in
ISRA) duly approved by DEP (or such other agency or body which shall then have
jurisdiction over ISRA matters).
(iii) Nothing contained in this Article shall be construed as
limiting Tenant's obligation to otherwise comply with ISRA.
(iv) In the event Tenant complies with subparagraph (a) (ii) of this
Article 48 by obtaining an approved Remedial Action Workplan, Tenant agrees that
it shall, at its sole cost and expense:
(A) post any financial guarantee or other assurance required
to secure implementation and completion of such Remedial Action Workplan; and
(B) promptly implement and diligently prosecute to completion
said Remedial Action Workplan in accordance with the schedule contained therein
or as may otherwise be ordered or directed by DEP or such other agency or body
which shall then have jurisdiction over such Remedial Action Workplan. Tenant
expressly understands, acknowledges and agrees that Tenant's compliance with the
provisions of this subparagraph (iv) may require Tenant to expend or do acts
after the expiration or termination of the Term and Tenant shall not be excused
therefrom. Any remediation conducted at the Premises by Tenant under ISRA or
otherwise shall be to the most stringent standard applicable to ISRA and shall
not involve alternative standards, institutional or engineering controls.
(v) Within ten (10) days after a written request by the Landlord or
any Mortgagee, Tenant shall deliver to Landlord and the Mortgagee if any, a duly
executed and acknowledged affidavit of an executive officer of Tenant,
certifying:
(A) the proper four digit Standard Industrial Classification
Number relating to Tenant's then current use of the Premises (Standard
Industrial Classification Number to be obtained by reference to the then current
Standard Industrial Classification manual
8
9
prepared and published by the Executive Office of the President, Office of
Management and Budget or the successor to such publication); and
(B) (i) that Tenant's then current use of the Premises does
not involve the generation, manufacture, refining, transportation, treatment,
storage, handling or disposal of Hazardous Material on the site, above ground or
below ground, or (ii) that Tenant's then current use does involve the presence
of Hazardous Material, in which event, said affidavit shall describe in complete
detail Tenant's operations which involves the presence of Hazardous Material.
Such description shall, inter alia, identify each Hazardous Material and
describe the manner in which Tenant generated, handled, manufactured, refined,
transported, treated, stored, and/or disposed of same. Tenant shall supply
Landlord and the Mortgagee if any, with such additional information relating to
the presence of Hazardous Materials Landlord or its Mortgagee requests (nothing
contained in this subsection (B) shall be deemed or construed to permit Tenant
to use Hazardous Material)
(vi) Without limiting the foregoing, Tenant agrees:
(i) at its sole cost and expense, to promptly discharge and
remove any lien or encumbrance against the Premises, or any other property owned
or controlled, in whole or in part, by Landlord imposed due to Tenant's failure
to comply with ISRA, and
(ii) to defend (with counsel approved by Landlord), indemnify
and hold Landlord harmless from and against any and all liability, penalty, loss
expenses, damages, costs, claims, causes of action, judgments and/or the like,
of whatever nature, including but not limited to reasonable attorney's fees and
other costs of litigation or preparation therefor, to the extent such costs
arise from or in connection with Tenant's failure or inability, for any reason
whatsoever, to observe or comply with ISRA and/or provisions of this Article
48(a).
(vii) Tenant agrees that each and every provision of this Article
48(a) shall survive the expiration or early termination of the term of this
Lease. The parties hereto expressly acknowledge and agree that the Landlord
would not enter into this Lease but for the provisions of this Article 48(a) and
the aforesaid survival thereof.
(b) (i) Tenant agrees that it shall, at its sole cost and expense,
observe, comply and fulfill all of the terms and provisions of the Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq., as the same may be
amended from time to time (the "Spill Compensation and Control Act") and all
rules, regulations, ordinances, opinions orders and directives issued or
promulgated pursuant to or in connection with said Spill Compensation and
Control Act by DEP, any subdivision or bureau thereof or governmental or
quasi-governmental agency or body having jurisdiction thereof (said Spill
Compensation and Control Act and all said rules, regulation, ordinances,
opinions, orders and directives are hereinafter in this Article 48(b)
collectively referred to as "Spill Act").
(ii) Without limiting the foregoing, the Tenant agrees:
(A) that it shall not do, omit to do or suffer the commission
or omission of any act which is prohibited by or may result in any liability
under the Spill Act including without limitation the discharge of petroleum
products or other hazardous substances (as said terms are defined in the Spill
Act); and
(B) whenever the Spill Act requires the "owner or operator" to
do any act in or to the Premises, Tenant shall do such act and fulfill all such
obligations at its sole cost and expense, it being the intention of the parties
hereto that Landlord shall be free of all expenses and obligations arising from
or in connection with such compliance with the Spill Act.
(iii) Without limiting the forgoing, Tenant agrees:
(A) at its sole cost and expense, to promptly discharge and to
remove any lien or any encumbrance against the Premises, or any other property
owned or controlled, in whole or in part, by Landlord, imposed by Tenant's
failure to comply with the Spill Act; and
(B) to defend (with counsel approved by Landlord), indemnify
and hold Landlord harmless from and against any and all liability, penalty,
loss, expenses, damages, costs, claims, causes of action, judgments and/or the
like, of whatever nature, including but not limited to reasonable attorney's
fees and other expenses of litigation or preparation therefor, to the
9
10
extent such costs arise from or in connection with Tenant's failure or
inability, for any reason whatsoever, to observe or comply with the Spill Act
and/or the provisions of this Article 48(b).
(iv) Tenant agrees that each and every provision of this Article
48(b) shall survive the expiration or earlier termination of the Term. The
parties hereto expressly agree and acknowledge that the Landlord would not enter
into this Lease but for the provisions of this Article 48(b) and the aforesaid
survival thereof.
(c) (i) Tenant agrees that it shall, at its sole cost and expense,
promptly comply with all Environmental Laws applicable to its business and
properties, wheresoever located, or the Premises. Without limiting the
foregoing, Tenant agrees:
(A) that it shall not allow to occur any action or omission
which is prohibited by or may result in any liability under any Environmental
Law; and
(B) whenever during the term of this Lease any Environmental
Law requires any action of either or both of the owner or operator of the
Premises, Tenant shall fulfill all such obligations at its sole cost and
expense, it being the intention of the parties hereto that the Landlord shall be
free of all expenses or obligations arising from or in connection with
compliance with any Environmental Law and Tenant shall bear all such expenses
and obligations as if it is the sole owner and operator of the Premises.
(ii) Without limiting the foregoing, Tenant agrees:
(A) at its sole cost and expense to promptly discharge and
remove any lien or encumbrance against the Premises or any property owned or
controlled in whole or in part by the Landlord, imposed by reason of Tenant's
failure to comply with any Environmental Law or any provision of this Article
48(c).
(B) to defend (with counsel approved by Landlord), indemnify
and hold Landlord harmless from and against any and all liabilities, penalties,
losses, expenses, damages, costs, claims, causes of actions, judgments and/or
the like, of whatever nature, including but not limited to reasonable attorney's
fees and other expenses of litigation or preparation thereof arising including
any action brought under this Article 48(c), to the extent such costs arise from
or in connection with Tenant's failure to comply with any Environmental Law or
any provision of this Article 48(c).
(iii) Within ten (10) days after a written request by the Landlord
or any Mortgagee, Tenant shall deliver to Landlord and the Mortgagee, if any, a
fully executed acknowledged affidavit of an executive officer of Tenant,
certifying that the Tenant is not in violation of any Environmental Law. Tenant
shall supply Landlord and the Mortgagee, if any, with all information relating
to any alleged or actual violation of Tenant or any of its officers, employees,
agents, assigns, contractors or licensees or any of Tenant's visitors, guests or
invitees while in the Premises and/or the Project, of any Environmental Law as
the Landlord or Mortgagee reasonably requests within ten (10) days of a written
request for such information.
(iv) Tenant agrees that each and every provision of this Article
48(c) shall survive the expiration or earlier termination of the Term. The
parties hereto expressly agree and acknowledge that the Landlord would not enter
into this Lease but for the provisions of this Article 48(c) and the survival
thereof.
(d) Without limitation of any of the provisions of this Article 48, Tenant
shall not store, generate, manufacture, produce, treat, dispose of, release or
discharge on, under or about the Premises any Hazardous Material.
14. American with Disabilities Act. The following is hereby added to the Lease
as Article 49:
Article 49 - Americans with Disabilities Act
Landlord and Tenant acknowledge that the Americans With Disabilities Act of 1990
(42 U.S.C. S12101 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA") establish requirements for
business operations, accessibility and barrier removal, and that such
requirements may or may not apply to the Premises and the Building depending on,
among other
10
11
things: (1) whether Tenant's business is deemed a "public accommodation" or
"commercial facility", (2) whether such requirements are "readily achievable",
and (3) whether a given alteration affects a "primary function area" or triggers
"path of travel" requirements. The parties hereby agree that: (a) Landlord shall
be responsible for ADA Title III compliance in the Common Areas, except as
provided below, (b) Tenant shall be responsible for ADA Title III compliance in
the Premises, except for any Improvements to be performed by Landlord as part of
Landlord's Work defined herein only in connection with this Extension and Fourth
Modification of Lease, (c) Landlord may perform, or require that Tenant perform,
and Tenant shall be responsible for the cost of, ADA Title III "path of travel"
requirements triggered by alterations in the Premises other than as set forth in
(b) above, and (d) Landlord may perform, or require Tenant to perform, and
Tenant shall be responsible for the cost of, ADA Title III compliance in the
Common Areas necessitated by the Building being deemed to be a "public
accommodation" instead of a "commercial facility" as a result of the Tenant's
use of the Premises. Tenant shall be solely responsible for requirements under
Title I of the ADA relating to Tenant's employees.
15. Business Days and Business Hours. From and after the Additional Space
Commencement Date, the term "Business Days" shall mean Monday to Friday,
inclusive, and Saturday from 8:00 a.m. to 1:00 p.m., excluding all days observed
as holidays by the State or Federal governments ("Holidays") and the term
"Business Hours" shall mean all times between 8:00 a.m. and 6:00 p.m. on Monday
to Friday, inclusive, excluding Holidays, and Saturdays from 8:00 a.m. to 1:00
p.m., excluding Holidays.
16. Extra Hours Charge. Subject to periodic adjustment as set forth in Article
5.3 of the Original Lease, Extra Hours Charge, as of the Additional Space
Commencement Date the Extra Hours Charge shall be $75.00 per hour.
17. Insurance. The words "Such insurance shall be an amount of not less than
$1,000,000 combined single limit for bodily injury and property damage" on lines
25 through 27 of Article 13 of the Original Lease is hereby deleted and the
following inserted in lieu thereof: "Such insurance shall be an amount of not
less than $2,000,000 combined single limit for bodily injury and property
damage".
18. Article 19 of the Lease - Relocation. Article 19 of the Lease - Relocation
is hereby deleted in its entirety.
19. Rules and Regulations. Exhibit "C", "Rules and Regulations" of the Original
Lease is hereby deleted in its entirety and Exhibit "D", "Rules and Regulations"
attached hereto and by this reference made a part hereof is hereby inserted in
lieu thereof.
20. Addresses for Payments and Notices. Item 11 of Exhibit "B" of the Original
Lease, is hereby amended to be:
(a) Landlord: Theta Holding Company, L.P.
150 Clove Road
Little Falls, New Jersey 07424
Attn: Building Manager
(b) Tenant: Bisys Management Company
c/o The Bisys Group
150 Clove Road (10th floor)
Little Falls, New Jersey 07424
Attn: General Counsel
21. Broker. Landlord and Tenant represent and warrant to each other that it has
not directly or indirectly dealt with any real estate broker other than CB
Richard Ellis, Inc., 400 W Frank W. Burr Blvd., Teaneck, New Jersey in
connection with this Extension and Fourth Modification of Lease. Each party
covenants and agrees to indemnify, defend and hold the other party harmless from
and against any and all liabilities, claims, suits, demands, judgments, costs,
interest and expenses (including, but not limited to, reasonable counsel fees
incurred in the defense of any action or proceeding) to which the other party
may be subject or suffer by reason of the other indemnifying party's having had
dealings with respect to this Extension and Fourth Modification of Lease with
any other real estate agent or broker. This Article shall survive the expiration
or earlier termination of the Lease and shall control in all respects in which
it may conflict with the printed form of the Lease and this Extension and Fourth
Modification of Lease. Landlord shall
11
12
pay brokerage commissions in connection with this Extension and Fourth
Modification of Lease to CB Richard Ellis, Inc. pursuant to the terms and
conditions set forth in any separate agreements by and between CB Richard Ellis,
Inc. and Landlord.
22. Tenant hereby renews its obligations to Landlord for the full, prompt and
timely payment of all Basic Rent, Additional Rent and all other sums of money
required to be paid by Tenant during the Term of said Lease, as herein modified,
and for the full, prompt and timely performance, compliance and observance of
all terms contained in the Lease, as herein modified. Landlord acknowledges that
all the benefits and conditions applicable to the Current Premises under said
Lease, hereby apply to the Additional Space pursuant hereto originally as if
same were part of the Lease.
23. The provisions hereof shall inure to the benefit of and be binding upon the
respective successors and assigns of each of the parties hereto.
24. Except as herein specifically modified and to the extent as herein modified,
the provisions of said Lease, as amended, shall remain in full force and effect.
IN WITNESS HEREOF, Landlord, Tenant and Guarantor have caused these presents to
be signed by their respective duly authorized officer, the day and year first
above written.
LANDLORD:
THETA HOLDING COMPANY, L.P.
By M&E Packaging Corp., its General Partner
By: /s/ Alfred S. Teo
--------------------------------------
Alfred S. Teo, President
12
13
TENANT:
BISYS MANAGEMENT COMPANY
By: /s/ Dennis R. Sheehan
--------------------------------------
(Signature)
Name: Dennis R. Sheehan
--------------------------------------
Title: Executive Vice President
--------------------------------------
GUARANTOR:
By: /s/ Dennis R. Sheehan
--------------------------------------
(Signature)
Name: Dennis R. Sheehan
--------------------------------------
Title: Executive Vice President
--------------------------------------
13