Exhibit 10.25
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (the "Amendment") is entered into this
_______ day of ______________, 1997, between HPI-LINQUE PARTNERS ONE, L.P.
("Landlord"), and COMPUTRON SOFTWARE, INC. (formerly known as COMPUTRON
TECHNOLOGIES CORPORATION) ("Tenant").
BACKGROUND
Landlord and Tenant are parties to a certain Lease dated
, 1993 (the "Original Lease"), between Landlord's
predecessor-in-interest--Enterprise Group Development Corporation ("EGDC")--and
Tenant, and a certain First Amendment to Lease dated May 23, 1994 (the "First
Amendment"), a certain Second Amendment to Lease dated April 12, 1995 (the
"Second Amendment"), and a certain Third Amendment to Lease dated May 4, 1995
(the "Third Amendment"), all between EGDC and Tenant (the Original Lease, the
First Amendment, the Second Amendment and the Third Amendment are hereinafter
collectively referred to as the "Lease"). The Lease covers approximately 39,978
square feet of rentable floor area, being the entire twelfth (12th) floor (the
"12th Floor Space") of the building located at 301 Route 17 North, Rutherford,
New Jersey (the "Building"), and approximately 15,642 square feet of rentable
floor area (the "Existing 11th Floor Space") located on the eleventh (11th)
floor of the Building (the 12th Floor Space and the Existing 11th Floor Space
are hereinafter collectively referred to as the "Existing Space"), as more
particularly described in the Lease.
Landlord has acquired the Building and succeeded to the interest of
EGDC as landlord under the Lease.
Landlord and Tenant desire to extend the Term (as defined in the
Lease) of the Lease and for Tenant to lease from Landlord additional space
located on the eleventh (11th) floor of the Building in accordance with the
terms and conditions of the Lease and this Amendment.
AGREEMENT
In consideration of the foregoing and of the mutual promises contained
in this
Amendment, and for other good and valuable consideration the receipt and
sufficiency of which is acknowledged by Landlord and Tenant, and intending to be
legally bound hereby, Landlord and Tenant agree as follows:
1. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, in addition to the Existing Space currently leased by Tenant under the
Lease, the portion of the Building consisting of approximately 8,788 square feet
of rentable floor area, located on the eleventh (11th) floor of the Building and
shown on Exhibit A attached hereto and made a part hereof (the "New 11th Floor
Space"), in accordance with the terms and conditions of this Amendment.
2. (a) Except as hereinafter provided, Tenant shall accept the New
11th Floor Space in its current "AS IS" condition. Landlord and Tenant have
approved the working, finished and detailed construction drawings and
specifications for the New 11th Floor Work (as defined below) described on
Exhibit B attached to and made a part of this Amendment (the "New 11th Floor
Plans and Specifications"). The cost for preparation of the first set of
preliminary plans upon which the New 11th Floor Plans and Specifications are
based shall be incurred solely by Landlord.
(b) Construction, according to the New 11th Floor Plans and
Specifications (the "New 11th Floor Work") by Landlord, shall be carried out as
set forth below:
(i) Promptly after completion and Landlord's
approval of the New 11th Floor Plans and Specifications, Landlord
shall apply to the appropriate governmental authorities for any
building permit which shall be required in connection with Landlord's
performance of the New 11th Floor Work.
(ii) Promptly after the issuance of such building
permit, Landlord shall commence to perform the New 11th Floor Work.
Landlord shall diligently prosecute such work to completion. Landlord
shall perform all work provided for in the New 11th Floor Plans and
Specifications in compliance with the applicable building code and
other applicable laws, and in a good and workmanlike manner. Tenant
shall advise Landlord immediately in writing of any objection to the
performance of the New 11th Floor Work. Landlord will reasonably
satisfy any such objection within a reasonable time after the date
Landlord receives such notice.
(iii) Landlord makes no representations or warranties
regarding the compliance of the New 11th Floor Space with the
Americans with Disabilities Act of 1990 (the "ADA"). With respect to
the current condition of the New 11th Floor Space and any alterations
or improvements that Tenant makes to the interior of the New 11th
Floor Space (or which are made on Tenant's behalf), regardless of
whether Tenant has obtained Landlord's consent to such alterations or
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improvements, Tenant shall be fully responsible for complying with and
paying any costs associated with any and all requirements of the ADA. In
addition, if any alterations are required to be made to the Existing Space
or the New 11th Floor Space due to changes in or regulations under the ADA
or judicial interpretations of the requirements of the ADA coming into
existence following completion of the New 11th Floor Work, or due to
changes in Tenant's use of the Existing Space or the New 11th Floor Space
or in the nature of Tenant's conduct of its business in the Existing Space
or the New 11th Floor Space (including but not limited to any changes in
use or business conduct arising out of a sublease or assignment, or
resulting in the Existing Space or the New 11th Floor Space being deemed a
"place of public accommodation" under the ADA), Tenant shall be fully
responsible for complying with and paying any costs associated with any and
all requirements of the ADA arising in connection therewith. In the event
Tenant is required by order of any applicable governmental agency or court
having jurisdiction to take any particular measures in order to comply with
the requirements of the ADA, Tenant shall be entitled to appeal such order
in accordance with applicable laws and regulations, provided that Tenant
shall, notwithstanding such appeal, take all such measures as may be
necessary to prevent Landlord from incurring liability in connection with
such required measures and shall indemnify, defend and hold harmless
Landlord from any and all liability, cost or expense resulting or arising
from Tenant's failure to take any such required measures.
(iv) Landlord shall arrange for any inspections and
shall apply for and obtain any certificate of occupancy required by
any governmental authority.
(v) Tenant shall, within twenty (20) days after
Tenant's receipt of Landlord's written demand from time to time, pay
to Landlord the cost of the New 11th Floor Work (the "New 11th Floor
Finish Cost"), including costs for preparation of preliminary plans
(beyond the first set thereof) (the "Plan Preparation Costs"), fees to
governmental agencies and officers, and actual costs of construction
including but not limited to demolition costs, dumpster charges, costs
of material and labor, construction cleanup costs and all other costs
in any way related to the New 11th Floor Work, and the fee described
in subparagraph (c) below. Landlord shall bid out all major
categories of the New 11th Floor Work to at least two (2) reputable
subcontractors designated by Landlord, and shall award work to the
lowest qualified bidder for each such category. Notwithstanding
anything to the contrary contained in this Section 2(b), the New 11th
Floor Finish Cost shall not include the cost to repair existing holes
in the interior walls of the New 11th Floor Space, which Landlord
shall perform as part of the New 11th Floor Work at Landlord's sole
cost and expense.
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(vi) In the event of a default by Tenant in any
payment required on account of the New 11th Floor Work, Landlord
shall, in addition to all other legally allowable remedies, have the
same rights as in the case of a default in the payment of Rent under
the Lease.
(c) Tenant acknowledges that the New 11th Floor Finish Cost
shall include a fee of fifteen percent (15%) of all other costs (except for the
Plan Preparation Costs) included in the New 11th Floor Finish Cost, for the
supervision and coordination of the New 11th Floor Work by a representative of
Landlord acting as construction manager on behalf of Landlord.
(d) Tenant shall be granted access to the New 11th Floor Space
prior to Landlord's substantial completion of the New 11th Floor Work for the
purpose of installing wiring for Tenant's computers, telephones and/or other
equipment, for installing Tenant's furniture, and/or for storage of Tenant's
property and equipment, so long as such installation and/or storage does not
interfere with the performance or cause delays in the completion of the New 11th
Floor Work.
3. The "New 11th Floor Commencement Date" shall be the later of (i)
January 1, 1998, or (ii) the day on which Landlord obtains a certificate of
occupancy (temporary or permanent) for the New 11th Floor Space (or, if no
certificate of occupancy is required for Tenant to occupy the New 11th Floor
Space, the day on which Landlord certifies to Tenant that it has substantially
completed, except for "punch list" items not materially interfering with
Tenant's use and occupancy of the New 11th Floor Space, the New 11th Floor
Work), provided that Landlord is not unreasonably delayed in the completion of
the New 11th Floor Work due to Tenant's changes in the New 11th Floor Plans and
Specifications or Tenant's delays in giving necessary approvals ("Tenant
Delays"), in which case the New 11th Floor Commencement Date will be accelerated
by the total number of days of Tenant Delays. Notwithstanding the foregoing, in
the event Tenant commences business operations in the New 11th Floor Space prior
to the date on which the New 11th Floor Commencement Date would be deemed to
have occurred pursuant to the first sentence of this Section 3, the "New 11th
Floor Commencement Date" shall be the date on which Tenant has so commenced
business operations in the New 11th Floor Space. Also notwithstanding the
foregoing, no Tenant Delay shall begin to run until Tenant has received notice
from Landlord that such Tenant Delay is or shall be occurring. Landlord shall
advise Tenant of the anticipated date on which it expects to receive a
certificate of occupancy and/or the anticipated New 11th Floor Commencement
Date.
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4. As of the New 11th Floor Commencement Date, the New 11th Floor
Space shall be deemed to be a part of the Demised Premises under the Lease, and
all provisions of the Lease relating to the Demised Premises, except as
specifically set forth in or modified by this Amendment (and except with respect
to Landlord's obligation to perform or pay for any alterations or improvements
in the Demised Premises, other than as herein provided), shall from and after
the New 11th Floor Commencement Date be applicable to the New 11th Floor Space.
5. Effective as of the New 11th Floor Commencement Date, Tenant
shall pay to Landlord, from the New 11th Floor Commencement Date through
December 31, 1998, in addition to the Base Rent payable under the Lease for all
other areas that may be leased by Tenant from time to time through December 31,
1998, Base Rent (as defined in the Lease) for THE NEW 11TH FLOOR SPACE ONLY in
the amount of One Hundred Seventy-Five Thousand Seven Hundred Sixty and 04/100
Dollars ($175,760.04) per annum payable in monthly installments of Fourteen
Thousand Six Hundred Forty-Six and 67/100 Dollars ($14,646.67) (and the monthly
installment of Base Rent for the New 11th Floor Space shall be adjusted
proportionately for the calendar month in which the New 11th Floor Commencement
Date occurs if the New 11th Floor Commencement Date is not the first day of a
calendar month).
6. The Term of the Lease, as amended by this Amendment, is hereby
extended by four (4) years, so that the Expiration Date (as defined in the
Lease) shall be December 31, 2002 (the "New Expiration Date").
7. Effective as of January 1, 1999, Tenant shall pay to Landlord
Base Rent for the Demised Premises (i.e., the Existing Space and the New 11th
Floor Space combined), for the period from January 1, 1999, through the New
Expiration Date, in the amount of NINE HUNDRED SEVENTY-FIVE THOUSAND THREE
HUNDRED TWENTY and 04/100 DOLLARS ($975,320.04), payable in equal monthly
installments of EIGHTY-ONE THOUSAND TWO HUNDRED SEVENTY-SIX and 67/100 DOLLARS
($81,276.67).
8. Notwithstanding anything to the contrary contained in the Lease,
Tenant acknowledges that Tenant currently is paying, and shall during the
remaining Term of the Lease (as extended by this Amendment) pay for electricity
furnished Tenant in the Demised Premises based on metering to Landlord through
submeters existing in the Demised Premises on a monthly basis together with
Rent, at the tariff applicable to Landlord (with no profit to be realized
thereon by Landlord), subject, however, in the case of the Existing Space, to
the provisions of those two (2) certain Agreements between Landlord and Tenant
dated June 10, 1996 (executed July 9, 1996), relating to retrofitting of
electrical fixtures in certain portions of the Existing Space, which Agreements
are incorporated herein by reference and shall continue in effect throughout the
Term of the Lease, as extended by this Amendment.
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9. Tenant shall pay no Tax Increase Amount (as defined in the Lease)
or Operating Increase Amount (as defined in the Lease) for the New 11th Floor
Space allocable to any period prior to January 1, 1999. Effective as of January
1, 1999, Tenant's Pro Rata Share (as defined in Section 1.06 of the Lease) shall
be revised to equal 17.0369%, and, for purposes of determining the Tax Increase
Amount payable by Tenant for all periods from and after January 1, 1999, (i) the
Base Tax Rate (as defined in Section 2.01 of the Lease) shall mean the real
estate tax rate in effect for the calendar year 1999, and (ii) the Assessed
Valuation (as described in Section 5.02(c) of the Lease) shall mean the assessed
value of the Real Estate for the calendar year 1999.
10. Effective as of January 1, 1999, Section 5.03 of the Lease shall
be deleted in its entirety and the following shall be inserted in its place:
"SECTION 5.03. BUILDING OPERATING COSTS.
Tenant shall pay to Landlord as an additional Rent to
compensate Landlord for Tenant's Pro Rata Share increases in expenses
paid or incurred by, or on behalf of, Landlord in respect of the
operation, management, maintenance and/or repair of the Building, in
equal monthly installments together with Tenant's payment of monthly
installments of Base Rent, the following amounts for the following
periods (herein called the "OPERATING INCREASE PAYMENTS"):
(a) $2,636.40 per annum, for the period from
January 1, 1999, to and including December 31, 1999;
(b) $17,305.75 per annum, for the period from
January 1, 2000, to and including December 31, 2000;
(c) $32,195.13 per annum, for the period from
January 1, 2001, to and including December 31, 2001; and
(d) $47,307.86 per annum, for the period from
January 1, 2001, to and including December 31, 2001.
In the event this Lease is extended or renewed, the Operating Increase
Amounts shall be adjusted on each subsequent January 1 to an amount
equal to the sum of:
(A) the Operating Increase Amounts payable by Tenant for the
twelve (12) month period immediately preceding such adjustment date
PLUS
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(B) one and one half percent (1.5%) of the sum of:
(i) the annual Base Rent in effect immediately preceding
such adjustment date plus
(ii) the Operating Increase Amounts payable by Tenant for
the twelve (12) month period immediately preceding such
adjustment date."
11. (a) Except as provided in Section 11(b) below, all provisions
of the Lease granting Tenant the right to renew the Term of the Lease are hereby
deleted in their entirety.
(b) (i) Tenant, provided the Lease, as amended by this
Amendment, shall then be in full force and effect, shall have the option
(herein called the "Renewal Option") to extend the Term for one (1) additional
three (3) year period (the "Renewal Term"), which Renewal Term shall commence on
the date immediately succeeding the New Expiration Date, and end on the third
(3rd) anniversary of the New Expiration Date (such anniversary being herein
called the "Renewal Expiration Date"). The Renewal Option shall be exercisable
only by Tenant giving Landlord written notice of such exercise (herein called
the "Renewal Notice"), which notice shall be received by Landlord not later than
the date that is twelve (12) months, nor earlier than fifteen (15) months, prior
to the New Expiration Date (time being of the essence). Landlord, at its
option, may render the Renewal Notice null and void upon notice thereof to
Tenant if, at the time that Landlord receives the same, Tenant shall be in
default under the Lease, as amended by this Amendment, beyond any applicable
notice and/or cure period.
(ii) If Tenant exercises the Renewal Option in
accordance with the terms set forth above, then the Lease shall thereupon be
extended for the Renewal Term upon all the same terms, covenants and conditions
as are contained in the Lease, as amended by this Amendment, and applicable
prior to the Renewal Term, EXCEPT THAT for, and during, the Renewal Term: (1)
the Base Rent shall be the Renewal Term Fixed Rent (as hereinafter defined) for
the Renewal Term, as determined as hereinafter set forth; (2) the Expiration
Date shall be the Renewal Expiration Date; (3) any provisions of this Lease
setting forth (i) workletter or other work obligations of Landlord, (ii) work
allowances or contributions to be made by Landlord or (iii) Rent credits or
concessions or "free rent" periods, shall not apply (except for any rent
abatements provided for in Sections 12.01 and 13.03 of the Lease); and (4) the
provisions of subparagraph (b)(i) hereinabove above relating to Tenant's right
to renew the Term shall not be applicable.
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(iii) (A) As used herein, the term "Renewal Term Fixed
Rent" for the Renewal Term shall mean a fixed rent payable at a per annum rate
equal to the product of (i) the Renewal Fair Market Fixed Rent for such Renewal
Term, MULTIPLIED BY (ii) the number of rentable square feet in the Demised
Premises.
(B) As used herein, the term "Renewal Fair Market
Fixed Rent" for the Renewal Term shall mean 95% of the fixed rent, per rentable
square foot per annum, that a willing tenant would pay and a willing landlord
would accept for a hypothetical renewal of the Demised Premises having a 3-year
term (commencing with the commencement of the Renewal Term), determined as of
six (6) months prior to the New Expiration Date, and providing for fixed annual
rent on a level payment basis throughout such term (I.E., no step-ups in fixed
rent), based solely on renewals then being and having recently (i.e., within the
past six (6) months) been consummated in the Building and in buildings
reasonably comparable to the Building located on the Route 3 corridor in Bergen
County, New Jersey, for premises reasonably comparable in size to the Demised
Premises, ASSUMING: (i) that the Demised Premises were being demised by such
hypothetical renewal in their "as is" condition as of the date that Tenant
exercised the Renewal Option; (ii) that the terms of such hypothetical renewal
would (x) include a work allowance or contribution to be paid by such willing
landlord to such willing tenant in an amount equal to the amount, if any, that
Landlord in its Initial Renewal Rent Notice (as hereinafter defined) has
indicated it is willing to provide to Tenant (but Landlord shall not be
obligated to offer to provide any such work allowance or contribution), (y)
include a free rent period during which such willing tenant would not pay any
fixed rent having a duration equal to the free rent period, if any, that
Landlord in its Initial Renewal Rent Notice has indicated it is willing to
provide to Tenant (but Landlord shall not be obligated to offer to provide any
such free rent period), and (z) otherwise be on the same terms and conditions as
are provided for in the Lease, as amended by this Amendment, for the Renewal
Term; and (iii) that such willing landlord would be paying a brokerage
commission in respect of such hypothetical renewal equal to the brokerage
commission, if any, payable by Landlord to Broker or any other broker to whom a
commission may be owing in connection with the Renewal Term.
(iv) During the sixty (60) day period (the "Renewal
Initial Period") following Tenant's exercise of the Renewal Option (I.E., after
Landlord's receipt of the Renewal Notice), Landlord and Tenant shall attempt to
agree upon the Renewal Term Fixed Rent for the Renewal Term (including any
concessions to be provided in connection therewith), and prior to the expiration
of the Renewal Initial Period Landlord shall give Tenant written notice (the
"Initial Renewal Rent Notice") containing (i) Landlord's determination of the
Renewal Term Fixed Rent for the Renewal Term ("Landlord's Renewal Rent
Determination"), (ii) the amount of any work allowance or contribution that
Landlord is willing to provide to Tenant (but Landlord shall not be obligated to
offer to provide any such work allowance or contribution), and (iii) the
duration of any free rent period that Landlord is willing to provide to Tenant
(but Landlord shall not be obligated
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to offer to provide any such free rent period). If Landlord and Tenant fail to
agree upon the Renewal Fair Market Fixed Rent for the Renewal Term within the
Renewal Initial Period, then Tenant may, by written notice (a "Renewal Appraisal
Notice") received by Landlord before the expiration of fifteen (15) days after
the expiration of the Renewal Initial Period, elect to have the Renewal Fair
Market Fixed Rent for the Renewal Term determined by appraisal in accordance
with the provisions set forth on Exhibit C annexed hereto. If Landlord does not
receive a Renewal Appraisal Notice from Tenant before the expiration of such
fifteen (15) day period, Tenant and Landlord shall be conclusively deemed to
have agreed to Landlord's Renewal Rent Determination, and the Fixed Rent for the
Renewal Term shall equal Landlord's Renewal Rent Determination.
(v) Upon the final determination of the Renewal Fair
Market Fixed Rent (by appraisal in accordance with the provisions set forth on
Exhibit C annexed hereto or by agreement of Landlord and Tenant), the Renewal
Term Fixed Rent for the Renewal Term shall be finally determined. If Tenant is
not satisfied with the Renewal Term Fixed Rent as so finally determined, Tenant
shall be entitled, by written notice delivered to Landlord before the expiration
of thirty (30) days after the date Tenant receives notice of the Renewal Term
Fixed Rent as so finally determined (time being of the essence), to withdraw
Tenant's exercise of the Renewal Option, whereupon the Lease, as amended by this
Amendment, shall expire as of the New Expiration Date as if Tenant had never
exercised the Renewal Option. If Tenant has failed to so withdraw its exercise
of the Renewal Option before the expiration of such thirty (30) day period,
Tenant shall be deemed to have accepted such final determination of the Renewal
Term Fixed Rent. Tenant shall be provided the work allowance, if any, and free
rent period, if any, set forth in the Initial Renewal Rent Notice. Any such
free rent period shall commence on the first (1st) day of the Renewal Term. Any
such work allowance shall be paid to Tenant on account of alterations performed
by or on behalf of Tenant in the Demised Premises in accordance with the Lease,
as amended by this Amendment, during the Renewal Term, upon Tenant's delivery to
Landlord of invoices for such alterations and proof of payment thereof and that
no construction liens have been filed in connection therewith.
(vi) Notwithstanding anything to the contrary contained
in this Section 11(b), during the Renewal Term, the Operating Increase Amounts
shall be adjusted on the first (1st) day of the Renewal Term and on each
anniversary of the first (1st) day of the Renewal Term to an amount equal to the
sum of (a) the Operating Increase Amounts payable by Tenant for the twelve (12)
month period immediately preceding such adjustment date plus (b) one and one
half percent (1.5%) of the sum of (i) the annual Base Rent in effect immediately
preceding such adjustment date plus (ii) the Operating Increase Amounts payable
by Tenant for the twelve (12) month period immediately preceding such adjustment
date.
(vii) Tenant shall, upon the request of Landlord,
execute, acknowledge and deliver to Landlord an instrument or instruments in
form reasonably satisfactory to Landlord confirming any terms and conditions of
the Lease, as amended by this Amendment,
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applicable to the Renewal Option or the Renewal Term, including without
limitation whether or not the Renewal Option has been exercised and the Base
Rent for the Renewal Term, but any failure of Tenant to execute, acknowledge and
deliver such instrument(s) shall not affect the validity of the Renewal Term or
any of the provisions of this Section 11(b).
12. (a) Except as provided in Section 12(b) below, all provisions
of the Lease granting Tenant the right to lease additional space in the Building
are hereby deleted in their entirety.
(b) Tenant may, at any time during the Term of the Lease (as
extended by this Amendment, notify Landlord in writing that Tenant desires to
lease additional space in the Building, which notice shall also indicate the
number of rentable square feet of additional space Tenant desires to lease (an
"Expansion Notice"). Within sixty (60) days after Landlord's receipt of an
Expansion Notice, Landlord shall notify Tenant (a) of all portions of the
Building not included in the Demised Premises that (i) are then leased to a
third party or are vacant, (ii) are then, or are scheduled, within nine (9)
months after Landlord's receipt of the Expansion Notice, to become, vacant and
available for lease, and (iii) contain rentable square footage (as reasonably
determined by Landlord) of not more than 120% times the rentable square footage
of the Demised Premises and (b) the terms upon which Landlord would be willing
to lease each such area to Tenant. Tenant may, if it so desires, notify
Landlord within fifteen (15) days after receipt of such notice from Landlord,
that Tenant desires to lease one (1) of the areas in question (identifying the
area Tenant desires to so lease), whereupon Landlord will negotiate in good
faith with Tenant for fifteen (15) days to the exclusion of other potential
tenants with respect to the possible leasing of such area by Tenant. Landlord
shall not be obligated by this provision to enter into a lease with Tenant with
respect to any such area or, after the expiration of such 15-day negotiation
period, to negotiate with Tenant with respect to the possible lease of any such
area to the exclusion of other potential tenants. All rights of Tenant under
this Section 12(b) are and shall be subject to rights granted prior to the
execution of this Amendment to other tenant(s) of the Building providing options
or preferential rights with respect any area of the Building to which this
Section 12(b) applies.
13. (a) Promptly after the execution of this Amendment by Landlord
and Tenant, Landlord, at Landlord's sole cost and expense, shall replace carpet,
paint the corridor and repair other damage (including any damage to the
wallcovering) in the corridor on the 12th floor of the Building leading to the
roof of the Building resulting from servicing the HVAC system located on such
roof, in the location identified on Exhibit D attached hereto and made a part
hereof. To the extent reasonably necessary, Landlord, at Landlord's sole cost
and expense, shall perform like repairs and replacements in the same area (and,
to the extent such repairs and replacements, resulting from the same cause, are
reasonably necessary, to the portion of the elevator lobby of the 12th floor of
the Building immediately adjacent to such corridor) prior to December 31, 2000.
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(b) Prior to July 31, 1998 (plus additional time due to delays
caused by Force Majeure (as defined in the Lease)), Landlord, at Landlord's sole
cost and expense, shall upgrade the bathrooms located on the 11th and 12th
floors of the Building, using Building standard materials, comparable with other
bathrooms recently or currently being upgraded on other floors of the Building,
in accordance with Landlord's standards for design and materials.
14. Upon the execution of this Amendment by Landlord and Tenant,
Tenant shall vacate and surrender to Landlord any storage space now being used
by Tenant in the Building. Landlord shall not provide storage rights to any
other tenant in the Building from and after January 1, 1998, without offering
reasonably comparable storage rights to Tenant.
15. Tenant, incident to its use of the Demised Premises, shall have
the exclusive right to use four (4) reserved parking spaces (in addition to any
reserved parking spaces being provided to Tenant prior to the execution of this
Amendment by Landlord and Tenant), which Tenant's reserved parking spaces shall
be located as shown on Exhibit E attached to and made a part of this Amendment.
Tenant will be responsible (i) for the internal allocation of Tenant's reserved
spaces (among Tenant and Tenant's Agents (as defined in the Lease)) and (ii) at
Tenant's expense, for the enforcement of Tenant's exclusive right to use
Tenant's reserved spaces (it being agreed that Tenant shall indemnify and hold
harmless the Landlord from any claim or action brought against Landlord, not
directly attributable to the negligence or willful misconduct of Landlord or any
party acting on behalf of Landlord, by any persons or entities as a result of
Tenant enforcing its exclusive right to use Tenant's reserved spaces). Landlord
shall, at Tenant's expense, place a marking on each of Tenant's reserved spaces
indicating that the same is a reserved parking space.
16. Notwithstanding anything to the contrary contained in the Lease,
Tenant shall not be required to remove at the expiration or sooner termination
of the Lease, as amended by this Amendment, any alterations or improvements
existing in the Demised Premises as of the date of execution of this Amendment
by Landlord and Tenant or constituting the New 11th Floor Work.
17. Section 21.04 of the Lease is modified to provide for the sending
of notices to Landlord at the following address:
HPI-Linque Partners One, L.P.
c/o Lincoln Equities Group
990 Stewart Avenue
Garden City, New York 11530
Attn: Chaim A. Wachsman, Partner
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WITH A COPY TO:
Earp Cohn & Pendery, P.C.
222 Haddon Avenue
Westmont, New Jersey 08108
Attn: Richard B. Cohn, Esquire
and for the sending of notices to Tenant at the following address:
Computron Software, Inc.
301 Route 17 North
Rutherford, New Jersey 07070
Attn: Michael Jorgensen
WITH A COPY TO:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attn: Lowell Willinger, Esquire
18. Tenant represents and warrants to Landlord that Tenant has not
dealt with any party to whom a commission might be owing in connection with this
Amendment, except for Cushman & Wakefield of New Jersey, Inc., The Garibaldi
Group, and Linque Management Company, Inc. (together, "Broker"), and shall
indemnify, defend and hold harmless Landlord from and against the claim of any
party other than Broker claiming a commission owing due to its dealings with
Tenant in connection with this Amendment. Landlord represents and warrants to
Tenant that Landlord has not dealt with any party to whom a commission might be
owing in connection with this Amendment, except for Broker, and shall indemnify,
defend and hold harmless Tenant from and against the claim of any party,
including Broker, claiming a commission owing due to its dealings with Landlord
in connection with this Amendment. Landlord shall pay any commission payable to
Broker in connection with this Amendment under a separate agreement or
agreements.
19. Tenant shall, upon execution of this Amendment, sign and return
to Landlord a copy of the letter executed on behalf of Landlord delivered to
Tenant with this Amendment, a copy of which letter is attached to this Amendment
as Exhibit F. Tenant's failure to so deliver such letter shall constitute an
Event of Default under the Lease, as amended by this Amendment.
-12-
20. If there is any conflict between the terms and provisions of the
Lease and the terms and provisions of this Amendment, the terms and provisions
of this Amendment shall prevail. Landlord and Tenant ratify and affirm the
Lease as modified by this Amendment. Except as modified by this Amendment, the
Lease shall remain unmodified and in full force and effect.
21. In subsection (ix) of Section 7.03(b) of the Original Lease, (i)
in clause (a) the amount "five percent (5%)" is changed to "seven and one half
percent (7.5%)", and (ii) in clause (b) the amount "ten percent (10%)" is
changed to "fifteen percent (15%)".
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
on the day and year first above written.
WITNESS/ATTEST: HPI-LINQUE PARTNERS ONE, L.P.
BY: LINQUE REALTY ADVISORS,
L.L.C., its General Partner
BY:
- ------------------------------ --------------------------------
CHAIM A. WACHSMAN,
Managing Member
COMPUTRON SOFTWARE, INC.
(formerly known as COMPUTRON
TECHNOLOGIES CORPORATION)
BY:
- ------------------------------ --------------------------------
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EXHIBIT A
(NEW 11TH FLOOR SPACE)
-A-1-
EXHIBIT B
(NEW 11TH FLOOR PLANS AND SPECIFICATIONS)
Plan P-1 prepared by Robert G. Botbyl, R.A., dated 9/23/97, revised as
directed by M. Sidler 11/4/97.
-B-1-
EXHIBIT C
APPRAISAL PROVISIONS
If Tenant shall serve upon Landlord, within the time and in the manner
required under Section 11(b) of this Amendment, a Renewal Appraisal Notice, then
the Renewal Fair Market Fixed Rent shall be determined by appraisal in
accordance with the following:
1. Tenant, by designation in the Renewal Appraisal Notice, shall appoint
an appraiser ("Tenant's Appraiser"). Landlord or Tenant shall furnish to
Tenant's Appraiser a copy of the Initial Renewal Rent Notice. Within thirty
(30) days after the date of Landlord's receipt of the Renewal Appraisal Notice,
Tenant shall deliver to Landlord the written good-faith determination of
Tenant's Appraiser of the Renewal Fair Market Fixed Rent ("Tenant's Renewal Rent
Determination"), based upon the parameters set forth in Section 11(b)(iii) of
this Amendment. If Tenant fails to deliver to Landlord Tenant's Renewal Rent
Determination before the expiration of such thirty (30) day period, then Tenant
and Landlord shall be conclusively deemed to have agreed to Landlord's Renewal
Rent Determination, and the Base Rent for the Renewal Term shall equal
Landlord's Renewal Rent Determination.
2. Provided Landlord has received Tenant's Renewal Rent Determination
within the time set forth in Paragraph 1 above, Landlord and Tenant's Appraiser,
within fifteen (15) days after Landlord's receipt of the Tenant's Renewal Rent
Determination, shall jointly appoint a mutually agreeable second appraiser who
shall be impartial (herein called the "Final Appraiser") and notify Tenant
thereof. If Landlord and Tenant's Appraiser fail to agree upon and appoint the
Final Appraiser within such 15-day period, then either Landlord or Tenant may
request that the American Arbitration Association ("AAA") appoint the Final
Appraiser within ten (10) days after such request, and both parties shall be
bound by any appointment so made within such 10-day period. If the Final
Appraiser shall not have been appointed within such 10-day period, then either
Landlord or Tenant may apply to any court having jurisdiction to make such
appointment. The Final Appraiser shall subscribe and swear to an oath to fairly
and impartially perform his duties hereunder.
3. Within fifteen (15) days after the appointment of the Final Appraiser,
Landlord shall submit a copy of the Initial Renewal Rent Notice to the Final
Appraiser, and Tenant shall submit a copy of Tenant's Renewal Rent Determination
to the Final Appraiser. If either Landlord or Tenant shall fail to submit such
materials in accordance with the provisions of this Paragraph 3 of this Exhibit
C, then the Final Appraiser shall notify any party which failed to submit its
required materials of its failure (which notice shall refer specifically to this
Paragraph 3 of this Exhibit C), and if, in such event, the failing party does
not, within a period of ten (10) days after its receipt of such notice, submit
its required materials, then (i) if Tenant failed to so submit its required
materials, the Base Rent for the Renewal Term shall be determined using
-C-1-
Landlord's Renewal Rent Determination, or (ii) if Landlord failed to so submit
its required materials, the Base Rent for the Renewal Term shall be determined
using Tenant's Renewal Rent Determination, and any such determination shall be
conclusive and binding upon both Landlord and Tenant.
4. If both Landlord and Tenant submit their respective required
materials in accordance with the provisions of Paragraph 3 of this Exhibit C,
then the Final Appraiser, within twenty (20) days after its receipt of both sets
of required materials, shall select which of Landlord's Renewal Rent
Determination or Tenant's Renewal Rent Determination, in his opinion, more
accurately reflects the Renewal Fair Market Fixed Rent, and shall notify
Landlord and Tenant of such selection in writing. The Renewal Fair Market Fixed
Rent set forth in the selected Renewal Rent Determination shall be conclusive
and binding upon both Landlord and Tenant.
5. The fees and expenses of any such appraisal process shall be
borne by the parties equally, except that Landlord shall bear the expense, if
any, of the Initial Renewal Rent Notice and Tenant shall bear the expense of
Tenant's Appraiser, and each party shall bear the expense of its attorneys and
experts.
6. Tenant's Appraiser and the Final Appraiser each shall be a
disinterested person of at least five (5) years experience as a real estate
appraiser in the State of New Jersey who shall be a member of the "MAI" society
of appraisers and shall have had experience as a broker or appraiser of
first-class commercial office real estate in the "Bergen County, New Jersey"
office market.
7. It is expressly understood, and each appraiser shall acknowledge
and agree, that any determination of the Renewal Fair Market Fixed Rent shall be
based solely on the definition thereof as set forth in Section 11(b)(iii) of
this Amendment, including the assumptions and criteria set forth in such
definitions. The appraisers shall not have the power to add to, modify or
change any such definitions or any other provisions of the Lease, as amended by
this Amendment, and the jurisdiction of the appraisers is accordingly limited.
-C-2-
EXHIBIT D
(LOCATION OF CORRIDOR REPAIRS)
(to be attached)
-D-1-
EXHIBIT E
(TENANT'S RESERVED PARKING SPACES)
-E-1-
EXHIBIT F
(LETTER RECOGNIZING MORTGAGEE)
(to be attached)
-F-1-