SECOND AMENDMENT TO LEASE AGREEMENT
This SECOND AMENDMENT TO LEASE AGREEMENT (the "SECOND AMENDMENT")is
made as of February 15, 2000 between MIDDLEFIELD - XXXXXXXX ASSOCIATES LLC, a
Delaware limited liability company ("LANDLORD"), and DITECH CORPORATION, a
California corporation ("TENANT").
RECITALS:
A. Tenant is the tenant under that certain Lease Agreement dated August
25, 1998 (the "ORIGINAL LEASE") between Lincoln-Whitehall Pacific, LLC ("PRIOR
LANDLORD"), as landlord, and Tenant. The Original Lease has been amended by that
certain First Amendment to Lease Agreement dated January 25, 1999 (the "FIRST
AMENDMENT") between Prior Landlord and Tenant. The Original Lease, as amended by
the First Amendment, is the "PRIOR LEASE"; the Prior Lease, as amended by this
Second Amendment, is the "Lease". The Prior Lease concerns those certain
premises (the "ORIGINAL PREMISES") which consist of approximately 35,800
rentable square feet of space in the building (known as "Building A", or "Unit
A") located at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, as such
premises are more specifically described in the Original Lease. All
initially-capitalized terms in this Second Amendment which are not defined in
this Second Amendment shall have the meanings given them in the Prior Lease.
B. Landlord has acquired all of Prior Landlord's interest in the Park
and the Prior Lease.
C. Addendum 1 to the Original Lease grants Tenant a right to extend the
term of the Lease, and Addendum 2 to the Original Lease grants Tenant certain
rights to expand into additional premises identified in the Original Lease as
Expansion Space #1 and Expansion Space #2.
D. Expansion Space #1 consists of approximately 14,273 rentable square
feet of space (notwithstanding that Addendum 2 to the Original Lease erroneously
states that this space contains 14,815 rentable square feet) in the building in
the Park which has an address of 000 Xxxx Xxxxxxxxxxx Xxxx, and which is known
as "Building B", or "Unit B". Expansion Space #1 is depicted on Exhibit A to
Addendum 2 to the Original Lease. Expansion Space #1 is currently occupied by
Semiconductor Equipment and Materials International, Inc. ("SEMI"). SEMI's lease
covering Expansion Space #1 is currently scheduled to expire on June 30, 2000,
but SEMI has indicated to Landlord that SEMI may be interested in vacating
Expansion Space #1 prior to that date. Another tenant of the Park, Cisco
Systems, Inc. ("Cisco") has a right of first offer to Expansion Space #1 which
is prior to Tenant's rights to Expansion Space #1.
E. Expansion Space #2 consists of approximately 11,245 rentable square
feet of space in Building B. Expansion Space #2 is depicted on Exhibit A to
Addendum 2 to the Original Lease. Expansion Space #2 is currently occupied by
Xxxxxx Electronics, Inc. ("XXXXXX"). Xxxxxx'x lease covering Expansion Space #2
is currently scheduled to expire on October 31, 2000. PRI Automation ("PRI") has
a right of first offer to Expansion Space #2 which is prior to Tenant's rights
to Expansion Space #2. Together, Expansion Space #1 and Expansion Space #2
comprise all of
Building B. Expansion Space #1 and Expansion Space #2 are, collectively, the
"EXPANSION SPACE".
F. Landlord and Tenant desire to amend the Prior Lease to extend the
Term and to add the Expansion Space to the Premises in accordance with the terms
of this Second Amendment.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. INTERPRETATION. The Prior Lease remains in full force and effect as
amended by this Second Amendment. Wherever the terms of this Second Amendment
and the Prior Lease conflict, this Second Amendment shall control.
2. EXPANSION OF PREMISES.
a. EXPANSION SPACE #1. Landlord may tender possession of
Expansion Space #1 to Tenant at any time after SEMI has vacated and
surrendered Expansion Space #1 to Landlord and prior to July 1, 2000.
If Landlord has not then already tendered possession of Expansion Space
#1 to Tenant, Landlord shall tender possession of Expansion Space #1 to
Tenant on July 1, 2000, provided that if SEMI has not vacated and
surrendered possession of Expansion Space #1 to Landlord on or before
June 30, 2000, Landlord shall thereafter make commercially reasonable
efforts to cause SEMI to vacate and surrender Expansion Space #1
Premises as soon as possible, and Landlord shall not be obligated to
tender possession of Expansion Space #1 to Tenant until SEMI has
vacated and surrendered possession of Expansion Space #1 to Landlord.
Tenant shall accept possession of Expansion Space #1 from Landlord on
the date Landlord tenders possession of it in accordance with this
Second Amendment. Landlord shall tender possession of Expansion Space
#1 in broom-clean condition and with all building operating systems,
including heating, ventilating and air conditioning systems ("HVAC"),
in good working condition. The date Landlord tenders possession of
Expansion Space #1 to Tenant in accordance with this Second Amendment
is the "EXPANSION SPACE #1 COMMENCEMENT DATE". Effective on and after
the Expansion Space #1 Commencement Date, Expansion Space #1 shall
constitute part of the Premises, and each reference in the Prior Lease
to the "Premises" shall include Expansion Space #1. Tenant shall
commence paying Rent with respect to Expansion Space #1 on the day
which is 31 days after the Expansion Space #1 Commencement Date as
provided below in Section 5 of this Second Amendment. Promptly after
the Expansion Space #1 Commencement Date occurs, Landlord and Tenant
shall execute and deliver an amendment to the Lease stating the actual
Expansion Space #1 Commencement Date. Expansion Space #1 shall be
conclusively deemed to contain 14,273 rentable square feet of space for
all purposes related to the Lease.
b. EXPANSION SPACE #2. After Xxxxxx vacates and surrenders
possession of Expansion Space #2 to Landlord, Landlord shall demolish
the existing tenant improvements, so as to leave Expansion Space #2 in
a gutted shell condition. Landlord shall tender possession of Expansion
Space #2 to Tenant after completing such demolition, but no earlier
than November 1, 2000, provided that if Xxxxxx fails to vacate and
surrender possession of Expansion Space #2 to Landlord on or before
October 31, 2000, Landlord shall thereafter
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make commercially reasonable efforts to cause Xxxxxx to vacate and
surrender Expansion Space #2 Premises as soon as possible, and Landlord
shall not be obligated to tender possession of Expansion Space #2 to
Tenant until Xxxxxx has vacated and surrendered possession of Expansion
Space #2 to Landlord and Landlord has had a reasonable period of time
in which to complete the required demolition. Tenant shall accept
possession of Expansion Space #2 from Landlord on the date Landlord
tenders possession of it in accordance with this Second Amendment.
Landlord shall tender possession of Expansion Space #2 to Tenant with
the demolition work described in this Section 2.b. completed. Landlord
shall be responsible for putting the building operating systems,
including HVAC, in or serving Expansion Space #2 in good working
condition on the date Tenant occupies Expansion Space #2 for its
intended use. The date Landlord tenders possession of Expansion Space
#2 to Tenant in accordance with this Second Amendment is the "EXPANSION
SPACE #2 COMMENCEMENT DATE". Effective on and after the Expansion Space
#2 Commencement Date, Expansion Space #2 shall constitute part of the
Premises, and each reference in the Prior Lease to the "Premises" shall
include Expansion Space #2. Tenant shall commence paying Rent with
respect to Expansion Space #2 on the Expansion Space #2 Commencement
Date as provided below in Section 5 of this Second Amendment. Promptly
after the Expansion Space #2 Commencement Date occurs, Landlord and
Tenant shall execute and deliver an amendment to the Lease stating the
actual Expansion Space #2 Commencement Date. Expansion Space #2 shall
be conclusively deemed to contain 11,245 rentable square feet of space
for all purposes related to the Lease.
c. EXTERIOR ADA COMPLIANCE. Landlord shall, at Landlord's sole
cost, perform all work on the exterior walkways, exterior stairs, and
other improvements serving Building B (but not including any tenant
improvements in the Expansion Space or any other part of Building B)
which are, in Landlord's reasonable opinion, reasonably required to
bring such exterior improvements serving Building B into compliance
with any provisions of the Americans With Disabilities Act which are
applicable and in effect as of the Expansion Space #2 Commencement
Date.
d. AS-IS CONDITION; NO REPRESENTATIONS; NO INDUCEMENTS. Tenant
shall accept possession of Expansion Space #1 and Expansion Space #2
on, the respective dates that Landlord tenders possession of them, in
their "as-is", "whereas" condition with all faults on the date of
tender, provided that nothing in this Section 2.d shall relieve
Landlord of its obligation to perform all demolition and other work
expressly required by Sections 2.a., 2.b., and 2.c. Other than the
demolition and other work Sections 2.a., 2.b., and 2.c. require
Landlord to perform, Landlord shall have no obligation to perform any
demolition, construct any tenant improvements, or perform any other
work whatsoever, in any part of the Expansion Space or the remainder of
the Park. Tenant hereby acknowledges that neither Landlord nor any of
its agents has made any representations or warranties whatsoever as to
the suitability, safety, or fitness of the Expansion Space for the
conduct of Tenant's business, Tenant's intended use of the Expansion
Space, or for any other purpose whatsoever. Tenant hereby also
acknowledges that, except for the "TI Allowance", as that term is
defined below in this Second Amendment, Landlord has not agreed to
provide to Tenant any other form of
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inducement whatsoever in connection with the extension of the Term or
the inclusion of the Expansion Space within the Premises.
3. TENANT WORK.
a. TENANT WORK. Tenant shall perform such tenant improvement
work (the "TENANT WORK") in each of Expansion Space #1 and Expansion
Space #2 as Tenant elects for the purpose of using the Expansion Space
for the Permitted Uses. Tenant shall be entitled to commence the Tenant
Work on the first Expansion Space to be delivered in accordance with
the terms of this Section 3 without waiting for the commencement date
of the second Expansion Space.
b. PLANS. Prior to commencing any Tenant Work, Tenant shall,
at its sole risk and cost, deliver to Landlord separate sets of
architectural plans and specifications (the "PLANS") for the proposed
Tenant Work in each of Expansion Space #1 and Expansion Space #2. The
Plans shall be subject to Landlord's approval and shall be approved by
all local governmental authorities with jurisdiction. Landlord's
approval of any Plans may be conditioned upon Landlord's written
requirement delivered concurrently with the approval of such Plans that
Tenant remove or alter to satisfy the requirements of this Section 3.b.
upon the termination of the Lease, all or any portion of the Tenant
Work shown on such Plans which Landlord would be required after the
termination of the Lease to alter or remove in order to render the
relevant portion of the Expansion Space fully functional and
operational and ready for occupancy by a typical prospective tenant of
such portion of the Expansion Space. Landlord may so designate for
removal at the termination of the Lease features such as a "clean
room," offices of an atypical size, or an excess of a particular size
or style of office or other room. Landlord will not unreasonably
withhold its approval of any Plans, provided, that Landlord shall be
deemed to have reasonably withheld its approval of such Plans if the
proposed Tenant Work shown on such proposed Plans, in Landlord's
reasonable opinion, either: (i) is likely to adversely affect the
operating systems, structure (including but not limited to any part of
the roof), or exterior appearance of Building B; operating systems or
the structure of Building B, including its roof; (ii) is likely to
materially increase the cost of operating Building B; (iii) would
violate any governmental laws, rules or ordinances; (iv) contains or
uses Hazardous Materials other than those permitted by all applicable
laws; (v) is not approved or permitted by any mortgagee or beneficiary
under any mortgage or deed of trust encumbering the Park; or (vi) is
not in accordance with "Landlord's Building Standards", as that term is
defined in Exhibit B to the Original Lease. If Landlord notifies Tenant
that changes are required to any Plans, Tenant shall promptly submit to
Landlord, for its approval, such Plans amended in accordance with the
changes so required. Tenant shall also revise the proposed Plans and
change the proposed Tenant Work shown on such proposed Plans to
incorporate any work required in the relevant portion of the Expansion
Space by any local governmental field inspector. Landlord shall deliver
written notice (the "APPROVAL NOTICE") to Tenant of its approval of any
Plans, provided that any Plans which Tenant has duly submitted to
Landlord for approval shall be deemed approved by Landlord if Landlord
fails to provide notice to Tenant of any comments of
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objections within 5 days after Landlord received such proposed Plans.
Any Plans approved by Landlord or deemed approved by Landlord are
"APPROVED PLANS". Landlord's approval of any Plans shall in no way be
deemed to be (a) an acceptance or approval of any element in such Plans
which is in violation of any applicable laws, ordinances, regulations
or other governmental requirements, or (b) an assurance that work done
pursuant to the Approved Plans will comply with all applicable laws, or
satisfy Tenant's objectives and needs.
c. PERFORMANCE OF TENANT WORK. With respect to each of the two
portions of the Expansion Space, upon Tenant's receipt of the Approval
Notice for such portion of the Expansion Space and the Commencement
Date of such portion of the Expansion Space, Tenant shall proceed, at
its sole risk and cost and with due diligence, to complete all of the
Tenant Work for such portion of the Expansion Space. Tenant shall, at
its sole expense, obtain all required building permits for the
construction of the Tenant Work shown on the Approved Plans and, except
where specifically designated in the Approved Plans; shall use only
new, first-class materials in the Tenant Work. All Tenant Work shall be
performed only by a contractor or contractors approved by Landlord in
advance in writing, and shall be completed in a good and workmanlike
manner and in accordance with all applicable statutes, laws, codes and
regulations. Tenant and Tenant's contractors shall make all efforts and
take all steps reasonably appropriate to assure that all construction
activities do not unreasonably interfere with the operation of the
buildings in the Park and the ability of other occupants of the Park to
conduct business in a routine manner. Tenant shall have no authority to
deviate materially from the Approved Plans as approved by Landlord in
the performance of the Tenant Work, except as authorized by Landlord in
writing, which authorization shall not be unreasonably withheld or
delayed. Tenant shall provide notice to Landlord of the date of the
occurrence of the substantial completion of the Tenant Work with
respect to each of the two portions of the Expansion Space, together
with a statement from Tenant's architect or general contractor (the
"SUBSTANTIAL COMPLETION CERTIFICATE") certifying that such substantial
completion has occurred and the total cost to Tenant of all labor,
materials, and services supplied in the construction or installation of
the Tenant Work for such portion of the Expansion Space, together with
all design costs and other fees and expenses properly allocable to the
performance of the Tenant Work in such portion of the Expansion Space
(the "PROJECT COSTS"). The Substantial Completion Certificate shall
include an itemized listing of the total cost of the Tenant Work shown
on such Approved Plans and copies of invoices or such other source
documents as Landlord may reasonably request in order to verify its
accuracy. Upon Landlord's receipt of each of the two Substantial
Completion Certificates, Landlord shall inspect the relevant Tenant
Work and note any deficiencies or unfinished items which, if so noted,
Tenant shall complete with due diligence. Tenant shall perform all
Tenant Work in accordance with all provisions of the Prior Lease,
including but not limited to Section 10.1 of the Original Lease, which
are not inconsistent with the terms of this Second Amendment, provided
that Tenant shall not be obligated to post the completion and indemnity
bond required by Section 10.1 of the Original Lease, and further
provided that Landlord shall not be entitled to a management fee for
managing the construction of the Tenant Work under this Second
Amendment. Notwithstanding that Landlord shall not receive a management
fee for managing the performance of the Tenant Work, Tenant shall
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reimburse Landlord, promptly after demand, as rent under the Lease, for
all reasonable charges and fees which Landlord actually pays to
unaffiliated third parties in connection with reviewing or inspecting
the Tenant Work. If for any reason the Lease is terminated (either
entirely or only with respect to all or a part of the Expansion Space)
prior to the completion of all Tenant Work, Tenant shall, at its sole
cost and risk, return the Expansion Space as soon as is commercially
practicable to at least as good a condition for the purposes of leasing
to another tenant as it was in on the date Landlord tendered possession
of it to Tenant, and shall indemnify Landlord for all lost profits and
all cost and expense Landlord incurs as a result of or in connection
with the failure of the Expansion Space to be in at least as good a
condition as it was in on the date Landlord tendered possession to
Tenant.
d. ALLOWANCE. Landlord shall reimburse Tenant for all or some
portion of the Project Costs through an allowance (the "ALLOWANCE") in
the amount of $8.50 per rentable square foot of each of the two
portions of the Expansion Space. The Allowance shall be payable
separately with respect to Expansion Space #1 and Expansion Space #2 in
accordance with this Section 3.d. Provided that no default then exists
with respect to Tenant's obligation to pay Rent and Tenant is then
lawfully in occupancy of the applicable portion of the Expansion Space
in the routine conduct of its business, Landlord shall pay to Tenant a
sum in the amount of the lower of the $8.50 per rentable square foot of
the applicable portion of the Expansion Space Allowance or the actual
Project Costs for such portion of the Expansion Space within 10
business days after the last to occur of the following: (i) Landlord's
receipt of the Substantial Completion Certificate for such portion of
the Expansion Space; and (ii) Landlord's receipt of full lien waivers
for all of the Tenant Work for such portion of the Expansion Space.
Tenant shall be solely responsible for all Project Costs for such
portion of the Expansion Space in excess of the portion of the
Allowance payable with respect to such portion of the Expansion Space.
Project Costs shall not include, and the Allowance shall not be payable
with respect to, any overhead or other "internal" costs or expenses of
Tenant, any costs or expenses which are not actually paid to third
parties unaffiliated with Tenant, or any costs of purchasing, leasing,
and/or installing any equipment or other personal property which will
not become part of the Premises and the property of Landlord upon
installation in the Expansion Space. The $8.50 per rentable square foot
maximum shall apply collectively to both of Expansion Space #1 and
Expansion Space #2, so that if Project Costs for one portion of the
Expansion Space do not equal $8.50 per rentable square foot, but
Project Costs for the other portion exceed $8.50 per rentable square
foot, Tenant shall be entitled to be reimbursed for more than $8.50 per
rentable square foot of Project Costs for the second portion of the
Expansion Space, provided that the maximum amount of the Allowance
shall remain the lesser of $216,903 or total actual Project Costs for
the entire Expansion Space.
4. EXTENSION OF TERM. Under the Prior Lease, the initial Term is
scheduled to expire on December 13, 2003 (the "EXPIRATION DATE"). Landlord and
Tenant hereby amend the Prior Lease by shortening the initial Term so that it
will expire on, and so that the Expiration Date of the initial Term will be, the
day before the first to occur of the Expansion Space #1 Commencement Date or the
Expansion Space #2 Commencement Date. Landlord and Tenant hereby further amend
the Lease
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by extending the Term for the period (the "FIRST EXTENSION TERM") which
commences on the day after the Expiration Date of the initial Term (the
"EXTENSION TERM COMMENCEMENT DATE") and ends on June 30, 2006. Each successive
12-month period during the Term commencing on the first day of the month in
which the Extension Term Commencement Date occurs is an "EXTENSION TERM LEASE
Year"
5. RENT. The monthly installments of Base Rent and the Tenant's Share
of Operating Expenses, the Tenant's Share of Tax Expenses, the Tenant's Share of
Common Area Utility Costs, and the Tenant's Share of Utility Costs under
Original Lease Sections 6.1, 6.2, and 7, during the following portions of the
First Extension Term shall be as follows:
------------------------------------------------------------- -------------------------------- ----------------
EXTENSION TERM LEASE YEAR (OR PORTION) MONTHLY INSTALLMENT OF BASE TENANT'S SHARE
RENT
------------------------------------------------------------- -------------------------------- ----------------
IF THE EXPANSION SPACE #1 COMMENCEMENT DATE IS THE
EXTENSION TERM COMMENCEMENT DATE
During the 30-day period commencing on the Extension Term
Commencement Date: $66,713 20.84%
From the 31st day after the Extension Term Commencement Date
through the day before Expansion Space #2 Commencement
Date: $113,008 29.91%
------------------------------------------------------------- -------------------------------- ----------------
IF THE EXPANSION SPACE #2 COMMENCEMENT DATE IS THE
EXTENSION TERM COMMENCEMENT DATE
From the Extension Term Commencement Date through the 30th
day after Expansion Space #1 Commencement Date $105,287 27.39%
------------------------------------------------------------- -------------------------------- ----------------
From the later of (i) the 31st day after the Expansion
Space #1 Commencement Date or (ii) the Expansion Space #2
Commencement Date, through the end of Extension Term Lease
Year 1 $141,683 35.69%
------------------------------------------------------------- -------------------------------- ----------------
2 $146,078 35.69%
------------------------------------------------------------- -------------------------------- ----------------
3 $150,571 35.69%
------------------------------------------------------------- -------------------------------- ----------------
4 $155,168 35.69%
------------------------------------------------------------- -------------------------------- ----------------
5 $159,892 35.69%
------------------------------------------------------------- -------------------------------- ----------------
From the first day of Extension Term Lease Year 6 through
the last day of the First Extension Term $164,719 35.69%
------------------------------------------------------------- -------------------------------- ----------------
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6. SECURITY DEPOSIT. On the date Tenant executes and delivers this
Second Amendment to Landlord, Tenant shall deliver to Landlord $80,920 as an
additional Security Deposit to be held and applied by Landlord and/or returned
to Tenant as provided in Section 4 of the Original Agreement. Accordingly, upon
Tenant's delivery of the additional Security Deposit, the total amount of the
Security Deposit under the Lease will be $164,719.
7. PARKING. During the First Extension Term, the number of
non-exclusive, non-designated parking spaces which Tenant will be entitled to
use under Section 24 of the Original Lease shall be the product of the number of
parking spaces in the Park from time to time multiplied by the "Tenant's Share"
specified in the third column of the table in Section 5 of this Second Amendment
at the relevant times.
8. SUBLETTING. Notwithstanding the provisions of Section 15 of the
Original Lease to the contrary: (i) Tenant shall be entitled to keep all profit
from any sublease of all or a portion of Expansion Space #2 during the 12-month
period commencing on the 31st day after the Expansion Space #2 Commencement
Date; and (ii) Landlord shall have no recapture right with respect to a sublease
of all or any portion of Expansion Space #2 during the 24-month period
commencing on the 31st day after the Expansion Space #2 Commencement Date. With
respect to any sublease of Expansion Space #2 that continues beyond the 24-month
period commencing on the 31st day after the Expansion Space #2 Commencement
Date, Landlord shall retain any right of recapture it may have with respect to
such excess portion of the sublease term. As provided in Section 15 of the
Original Lease, if Tenant subleases all or any portion of the Expansion Space
(other than Expansion Space #2 during the 24-month period provided above),
Landlord shall be entitled to receive, as rent under the Lease, 75% of all
subleasing profits with a deduction only for a reasonable leasing commission.
9. TERMINATION OF OPTION TO EXTEND THE LEASE AND FIRST RIGHT OF OFFER.
Effective upon the full execution and delivery of this Second Amendment, all of
Landlord's obligations under Addendum 1 (Option to Extend the Lease) to the
Original Lease and Addendum 2 (First Right of Offer) to the Original Lease shall
be deemed fully satisfied and Tenant shall have no further rights whatsoever
under Addendum 1 and/or Addendum 2.
10. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Second Amendment shall
not be deemed effective and neither Landlord nor Tenant shall have any
obligation under this Second Amendment until both of the following conditions
precedent have been satisfied: (i) Landlord has received the written consent of
its lender to this Second Amendment, provided that this condition shall be
deemed satisfied upon Landlord's delivery of written notice to Tenant that
Landlord has, in its sole discretion, determined that the lender has waived its
consent rights with. respect to this Second Amendment; and (ii) Landlord has
received a written waiver by Cisco of all of its rights with respect to
Expansion Space #1, provided that this condition shall be deemed satisfied upon
Landlord's delivery of written notice to Tenant that Landlord has, in its sole
discretion, determined that Cisco has waived its rights with respect to
Expansion Space #1. Landlord hereby confirms that PRI has waived its rights with
respect to Expansion Space #2. If either one or both of the conditions
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precedent remains unsatisfied on July 1, 2000, either Landlord or Tenant shall
be entitled to terminate this Second Amendment by delivering a written
termination notice to the other, provided that Tenant's termination notice shall
be null and void and this Second Amendment shall remain in full force and effect
if Landlord obtains satisfaction of both conditions precedent within 5 business
days after receiving Tenant's notice of termination. Upon the effectiveness of
such a termination, this Second Amendment shall be null and void with the same
effect as if it had never been executed or delivered, and Landlord shall return
to Tenant the additional Security Deposit made by Tenant under Section 6 of this
Second Amendment.
11. BROKERS. Each of Landlord and Tenant represents and warrants to the
other that neither it nor its agents or affiliates have dealt with any broker,
finder or the like in connection with this Second Amendment, except Xxxxx
Xxxxxxx and Xxxxx Xxxxxxx of Colliers International, who are representing
Landlord, and Xxxxx Xxxxxxxxx of Colliers International, who is representing
Tenant, the payment of whose commissions is Landlord's responsibility under a
separate agreement between Colliers International and Landlord. Each of Landlord
and Tenant agrees to indemnify, defend and hold the other harmless from and
against all loss, expense (including reasonable attorney fees, legal costs and
court costs), damage and liability resulting from the claims of any broker or
finder (including anyone claiming to be a broker or finder) on account of any
services claimed to have been rendered to the indemnifying party in connection
with the transaction contemplated by this Second Amendment.
12. COMMON AREA CHANGES. Landlord shall have the right, in Landlord's
sole discretion, from time to time, provided that Tenant's proximity to parking
and access to the Premises are not materially diminished other than on a
temporary basis: (i) to make changes to the Common Areas, including without
limitation, changes in the locations, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas, walkways and utility raceways;
(ii) to close temporarily any of the Common Areas for maintenance, rebuilding or
other alterations so long as reasonable access to the Premises remains
available; (iii) to remove or renovate existing buildings in the Park or add
additional buildings or other improvements in the Common Areas; (iv) to use the
Common Areas while engaged in making additional improvements, repairs or
alterations to the Park; and (v) to do and perform such other acts and make such
other changes in, to or with respect to the Common Areas and Park as Landlord
may deem appropriate.
13. ADDRESS CHANGE. The address for the payment of rent and for notices
to Landlord under or in connection with the Lease is hereby designated as:
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Xxxxxxxxxxx - Xxxxxxxx Associates LLC
c/o United Capital Corp., its agent
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX. 00000
Attention: Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy of all notices to:
Middlefield - Xxxxxxxx Associates LLC
c/o Eagle Ridge Partners LLC
Xxxxx 000
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx XX 00000
This SECOND AMENDMENT TO LEASE AGREEMENT is executed and delivered as
of the date first written above.
DITECH CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: VP/CFO
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MIDDLEFIELD - XXXXXXXX ASSOCIATES LLC
By: /s/Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: Manager
------------------------------
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