EXHIBIT 10.24
SECOND AMENDMENT TO
AGREEMENT OF LEASE
THIS SECOND AMENDMENT TO AGREEMENT OF LEASE (this "SECOND AMENDMENT") is
dated as of July 1, 2001, by and between CROSSROADS DEVELOPERS ASSOCIATES, LLC,
a New Jersey limited liability company having an office at 000 Xxxxxx Xxxxxxxx,
Xxxxx 000, Xxxxx Xxxxx, Xxx Xxxxxx 00000 (hereinafter called "LANDLORD"), and
NOVADIGM, INC., a Delaware corporation having an office at Xxx Xxxxxxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter called "TENANT").
STATEMENT OF FACTS
Pursuant to an Agreement of Lease dated as of March 14, 1997, as
amended by that First Amendment to Agreement of Lease dated as of June
30, 2001 (the "FIRST AMENDMENT"), Landlord leased to Tenant, and Tenant
hired, portions of the second (2nd) floor (mezzanine) (comprising
approximately 19,869 square feet) and third (3rd) floor (comprising
approximately 10,398 square feet) of the Building located at Xxx
Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx (such lease, as amended by
the First Amendment, shall hereinafter be collectively referred to as
the "LEASE"). Pursuant to that certain Assignment of Lease and Sublease
Agreement dated as of September, 2000, Tenant acquired the interest of
the tenant under that certain lease dated June 13, 1991 between Landlord
and Xxxxxxx Pirney, Inc., as tenant (the "PIRNEY LEASE") with respect to
certain premises located on the fifth (5th) floor (comprising
approximately 34,349 square feet) and in the basement of the
aforementioned Building, and certain reserved parking spaces, all as
more particularly described in the Pirney Lease (the "ADDITIONAL
SPACE").
Landlord now desires to lease to Tenant, and Tenant desires to
hire from Landlord, the Additional Space, and Landlord and Tenant desire
to terminate the Pirney Lease (except that the Pirney Lease description
of the basement space and the parking spaces referenced in Section 4
hereof shall be applicable to this Second Amendment) and to otherwise
amend the Lease upon, and subject to, the terms, covenants and
conditions herein contained.
All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars in hand paid
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. The Pirney Lease is hereby terminated (except that the Pirney Lease
description of the basement space and the parking spaces referenced in Section 4
hereof shall be applicable to this Second Amendment) and shall be of no further
force or effect.
2. Landlord confirms having received an additional $55,000.00 security
deposit
pursuant to the terms of the Pirney Lease.
3. The Term of the Lease shall be extended from July 1, 2001, to June
30, 2006 (or such earlier date as the Term may sooner terminate pursuant to any
of the terms, covenants or conditions of the Lease, or pursuant to law), which
date shall be deemed to be the "Termination Date" under the Lease.
4. Effective as of July 1, 2001 (hereinafter called the "ADDITIONAL
SPACE EFFECTIVE DATE"), Landlord is leasing to Tenant, and Tenant is hiring from
Landlord, the Additional Space, upon, and subject to, all of the same terms,
covenants and conditions set forth in the Lease, except that, as of the
Additional Space Effective Date:
(a) the Additional Space shall be deemed added to and a part of
the Premises for all purposes of the Lease so that (i) the term
"Premises" shall be deemed to include the Additional Space; and (ii) the
term "Termination Date" shall also govern the Additional Space;
(b) the Basic Annual Rent for the Premises shall be increased to
$1,356,936.00 per annum ($113,078.00 per month); and
(c) Tenant's Percentage Share shall be increased to 17.655%.
Tenant's rights with respect to the Additional Space shall include the portion
of the Additional Space located in the basement of the Building as described in
the Pirney Lease, Tenant's rights to any reserved parking spaces provided for in
the Pirney Lease, and Tenant's right of first refusal to lease space on the
fourth (4th) and sixth (6th) floors of the Building as and to the extent
provided for in the Pirney Lease subject, however, to any other party's right to
lease space on the fourth (4th) and sixth (6th) floors of the Building which may
exist as of the date hereof.
5. Tenant acknowledges and agrees (i) that it is in possession of the
Premises; (ii) that the Premises are satisfactory and in good order, repair and
condition as of the Additional Space Effective Date and the date hereof; (iii)
that Landlord has made no representations to Tenant with respect to the
condition of the Additional Space; (iv) that Tenant has taken the Additional
Space in its "as is" condition existing on the Additional Space Effective Date;
and (v) that Landlord has complied with and satisfied all of its obligations to
Tenant under the Lease. Effective as of the Additional Space Effective Date, the
entire Premises shall consist of certain space on the second (2nd) (mezzanine),
third (3rd), fifth (5th) and basement floors of the Building as shown on EXHIBIT
A annexed hereto and made a part hereof.
6. A new Article 39 shall be added to the Lease, which shall provide as
follows:
"ARTICLE 39
EXTENSION OF TERM
39.01 Provided Tenant shall not be in default of any terms or conditions
of this Lease
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(which continues after the expiration of any applicable grace period after the
giving of notice, if any, required hereunder) on the date the Extension Notice
(as hereinafter defined) is given, Tenant shall have the option (hereinafter
called the "EXTENSION OPTION") to extend this lease for a term (hereinafter
called the "EXTENDED TERM") of five (5) years commencing on the date
(hereinafter called the "EXTENDED TERM COMMENCEMENT DATE") that is the day
following the Termination Date and, unless sooner terminated as herein provided,
ending on the date (hereinafter called the "EXTENDED TERM EXPIRATION DATE") that
is the day immediately preceding the fifth (5th) anniversary of the Extended
Term Commencement Date by giving Landlord written notice (hereinafter called the
"EXTENSION NOTICE") of its intention to do so at least nine (9) months prior to
the Termination Date. If Tenant shall give the Extension Notice to Landlord
within the time and in the manner hereinabove provided, the Extension Option
shall be deemed to be irrevocably exercised and this lease shall be deemed
extended for the Extended Term upon all of the terms, covenants and conditions
provided for the Initial Term except that:
(a) any terms or conditions of this Lease that are expressly or by their
nature inapplicable to the Extended Term shall not apply during the same;
(b) the Minimum Rent payable during each year of the Extended Term shall
be an amount equal to ninety five percent (95.0%) of the then fair market rental
value (as defined below), payable in equal monthly installments; and
(c) all references to the Termination Date shall be deemed changed to,
and shall be deemed to mean, the Extended Term Expiration Date.
Conversely, if Tenant shall fail to give the Extension Notice to Landlord within
the time and in the manner hereinabove provided, or if any of the conditions to
Tenant's exercise of the Extension Option have not been satisfied, the Extension
Option shall be deemed waived by Tenant and of no force or effect. Within thirty
(30) days after the written request of either Landlord or Tenant, the parties
shall enter into a supplementary agreement in any reasonable form confirming
whether the Extension Option has been exercised in accordance with this Article.
39.02 In the event Tenant shall have extended the Term of the Lease for
the Extended Term within the time and in the manner provided in Section 39.01
above, the "fair market rental value" of the Demised Premises, shall be
determined as hereinafter provided and calculated as of the day that is four (4)
months prior to the Extended Term Commencement Date on the basis of a new
letting of the Demised Premises on an "as is" basis. The fair market rental
value shall be determined jointly by Landlord and Tenant not later than the day
(hereinafter called the "DETERMINATION DATE") that shall be thirty (30) days
following the date the Extension Notice is given. If Landlord and Tenant agree
upon such fair market rental value, such agreement shall be confirmed in a
writing (hereinafter called a "RENTAL AGREEMENT") to be executed by Landlord and
Tenant in any reasonable form not later than the Determination Date. In the
event that Landlord and Tenant shall have failed to join in executing a Rental
Agreement on or before the Determination Date, then the fair market rental value
for each year of the Extended Term shall be determined by arbitration as
follows:
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(a) Landlord and Tenant shall each appoint an arbitrator by written
notice given to the other party hereto not later than thirty (30) days after the
Determination Date. If either Landlord or Tenant shall have failed to appoint an
arbitrator within such period of time and, thereafter, shall have failed to do
so by written notice given within a period of five (5) days after notice by the
other party requesting the appointment of such arbitrator, then such arbitrator
shall be appointed by the American Arbitration Association or its successor (the
branch office of which is located in or closest to the Premises) upon request of
either Landlord or Tenant, as the case may be;
(b) the two (2) arbitrators appointed as above provided shall attempt to
reach an agreement as to such fair market rental value, and, in the event that
they are unable to do so within thirty (30) days after their joint appointment,
they shall appoint a third (3rd) arbitrator by written notice given to both
Landlord and Tenant, and, if they fail to do so by written notice given within
thirty (30) days after their appointment, such third (3rd) arbitrator shall be
appointed as above provided for the appointment of an arbitrator in the event
either party fails to do so;
(c) all of such arbitrators shall be real estate appraisers having not
less than ten (10) years experience in appraising the value of leasehold
interests in real estate similar to the Building located in Bergen County, New
Jersey and whose appraisals are acceptable to savings banks or life insurance
companies doing business in the State of New Jersey; and
(d) the three (3) arbitrators, selected as aforesaid, forthwith shall
convene and render their decision in accordance with the then applicable rules
of the American Arbitration Association or its successor, which decision shall
be strictly limited to a determination of the fair market rental value, within
thirty (30) days after the appointment of the third (3rd) arbitrator. The
decision of such arbitrators shall be in writing, and the vote of the majority
of them shall be the decision of all and, insofar as the same is in compliance
with the provisions and conditions of this Section, shall be binding upon
Landlord and Tenant. Duplicate original counterparts of such decision shall be
sent forthwith by the arbitrators by certified mail, return receipt requested,
to both Landlord and Tenant. The arbitrators, in arriving at their decision,
shall be entitled to consider all testimony and documentary evidence that may be
presented at any hearing, as well as facts and data that the arbitrators may
discover by investigation and inquiry outside of such hearings. If, for any
reason whatsoever, a written decision of the arbitrators shall not be rendered
within thirty (30) days after the appointment of the third (3rd) arbitrator,
then, at any time thereafter before such decision shall have been rendered,
either party may apply to a court of law sitting in Bergen County and having
jurisdiction by action, proceeding, or otherwise (but not by a new arbitration
proceeding), as may be proper to determine the question in dispute consistently
with the provisions of this Lease. The cost and expense of such arbitration,
action, proceeding, or otherwise shall be borne equally by Landlord and Tenant,
but Landlord and Tenant shall each pay their own attorneys' fees and
disbursements.
39.03 Notwithstanding anything to the contrary contained in this
Article, the fixed rent payable during any year of the Extended Term shall in no
event be less than the fixed rent payable during the last year of the Initial
Term; provided however that in the event that the fair market rental value is
determined to be less than the fixed rent payable during the last year of the
Initial Term, Tenant shall have the right, within ten (10) days after such
determination is made, time
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being of the essence, to revoke its election to extend the Term of the Lease."
7. Tenant covenants, warrants and represents that there were no brokers
or finders instrumental in consummating this Second Amendment other than The
Garibaldi Group ("BROKER"), and that no conversations or negotiations were had
with any other brokers or finders concerning this Second Amendment and the
extension and modification of the Lease. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all claims for brokerage commissions,
consultation fees or other compensation arising out of or resulting from any
conversations or negotiations had be Tenant with any brokers or finders, other
than Broker.
8. Except as and to the extent modified hereby, the Lease shall remain
in full force and effect and binding upon the parties in accordance with its
terms.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date and year first above written.
CROSSROADS DEVELOPERS ASSOCIATES, LLC
By: [SIGNATURE ILLEGIBLE]
-------------------------------------
Name:
Title:
NOVADIGM, INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice-President -- Product
Services
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