SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (the "Second Amendment") is entered into
as of this 1st day of October, 1999 by and between The Realty Associates Fund V,
L.P., a Delaware limited partnership ("Lessor"), and IMPAC Mortgage Holdings,
Inc., a Maryland corporation ("IMH") and IMPAC Funding Corporation, a California
corporation (collectively, "Lessee"), with reference to the following recitals.
RECITALS:
A. In or about June of 0000, XXX/XXX Xxxx Xxxxxx, LLC ("Dove Street")
and Lessee entered into a Standard Office Lease - Gross (the "Original Lease")
for the lease of floors one through six (the "Premises") of an office building
(the "Building") located on a larger parcel of real property located at 0000
Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx (the "Property"). The Premises does not
include the real property and improvements owned by Lessor which are outside the
exterior walls of the Premises.
X. Xxxx Street assigned all of its right, title and interest under
the Lease to IMPAC Commercial Holdings, Inc. ("ICH").
C. In or about May of 1999, ICH and Lessee entered into a First
Amendment to Standard Office Lease - Gross (the "First Amendment"). The Original
Lease and the First Amendment are hereinafter collectively referred to as the
"Lease." Prior to the execution of the First Amendment, Dove Street, ICH and
IMPAC Mortgage Holdings, Inc. ("IMPAC") entered into a Contract of Sale relating
to the Property (the "Contract").
D. Pursuant to Section 2 of the First Amendment, ICH and Lessee
agreed to collectively fund on a pro rata basis up to $1,922,830.00 (i.e.,
$961,415.00 each) to finance the construction of certain improvements at the
Building (the "Improvement Allowance"). As of the date of this Second Amendment,
ICH and Lessee have paid a total of $207,415.41 of the Improvement Allowance. Of
this $207,415.41, ICH has paid $103,707.70 and Lessee has paid $103,707.71. As
of the date of this Second Amendment, $1,715,414.59 of the Improvement Allowance
remains unpaid. Of this $1,715,414.59, Lessor is obligated to pay $857,707.29 of
additional Improvement Allowance and Lessee is obligated to pay $857,707.30 of
additional Improvement Allowance.
E. ICH has sold the Property to Lessor and, as part of the sale,
ICH has assigned all of its right, title and interest under the Lease to Lessor.
X. Xxxxxx may elect to construct another building on the real property
adjacent to the Building (the "Additional Building"). Lessee has caused certain
plans and specifications to be prepared for the construction of a building and
has obtained certain entitlements and approvals with respect to the construction
of the building (the "Plans and Approvals"). The Plans and Approvals include,
but are not necessarily limited to, Lessee's right, title and interest in all
architectural, structural, mechanical, electrical, plumbing, landscape, civil
engineering and soils engineering plans, specifications and calculations
obtained by Lessee and relating to the building.
G. Portions of the fifth floor of the Building are now leased to
Bankers Preferred, Hotel Partners, Inc., Xxxxxxxxx & Xxxxxxxxx and Xxxxxxx,
Xxxxxxxxx & Co., LLC (the "Fifth Floor Tenants"). The Fifth Floor Tenants occupy
portions of the fifth floor (the "Fifth Floor Premises") pursuant to written
leases (the "Fifth Floor Leases") originally entered into with Xxx Development
Corporation, a previous owner of the Building. Following the execution of the
Fifth Floor Leases, Dove Street leased to Lessee the Premises, which includes
the entire fifth floor of the Building. True, correct and complete copies of the
Fifth Floor Leases are attached hereto as Exhibit "A."
1
X. Xxxxxx and Lessee wish to amend the Lease on the terms
and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1 . Assignment. Lessee hereby acknowledges and agrees that Lessor
shall have no obligation to Lessee or to any other person or entity under the
Contract and no term or condition of the Contract shall be binding on Lessor.
2. Right of First Offer. Section 8 of the First Amendment gives
Lessee a right of first offer to purchase the Property. Lessee hereby represents
and warrants that it has previously waived any rights it may have under Section
8 with respect to the sale of the Property to Lessor.
3. Improvements.
-------------
(a) Use of Improvement Allowance. The Improvement
Allowance shall be used to fund the construction of the improvements described
on Schedule 1 of the First Amendment and in this Second Amendment (the
"Improvements").
(b) Building Systems Work. Lessor and Lessee agree to reserve
not less than One Hundred Eighty-Nine Thousand Seven Hundred Dollars
($189,700.00) of the Improvement Allowance (the "Building Systems Allowance")
for the HVAC Controller and Core Work and the rehabilitation of the mechanical
elements of the Building's existing elevators (the "Elevator Work"), all as more
particularly described in Exhibit "B" attached hereto. The HVAC Controller and
Core Work and the Elevator Work is hereinafter collectively referred to as the
"Building Systems Work." Lessee shall complete the Building Systems Work using
contractors, methods and procedures approved by Lessor and Lessee, in their
reasonable discretion. The Building Systems Work shall be completed in
accordance with the terms and conditions of the Work Letter Agreement attached
hereto as Exhibit "C" and incorporated herein by this reference (the "Work
Letter Agreement"). Lessee shall use commercially reasonable efforts to complete
the Building Systems Work on or before November 1, 2000. To the extent the cost
of the Building Systems Work exceeds the Building Systems Allowance ("Excess
Costs"), Lessee shall pay such Excess Costs at Lessee's sole cost and expense;
provided, however, if after all other Improvements have been completed and paid
for, and unused monies remain in the Improvement Allowance, Lessee shall be
entitled to use such monies to reimburse Lessee for such Excess Costs. . It is
expressly agreed by Lessor and Lessee that Lessor's obligation to pay for the
cost of the Building Systems Work and the cost of the Floor Improvements (as
defined below) shall in no event exceed in total $857,707.29.
(c) Floor Improvements. The portion of the Improvement
Allowance not reserved to pay for Building Systems Work (i.e., $1,525,714.59)
shall be used to construct tenant improvements on the fourth, fifth and sixth
floors of the Building (collectively the "Floor Improvements") and for no other
purpose. The Floor Improvements shall be constructed in accordance with the
terms and conditions of the Work Letter Agreement including, but not limited to,
the allocation requirements of Section 2.1 of the Work Letter Agreement. Lessee
shall pay, at Lessee's sole expense, amounts in excess of $1,525.714.59 needed
to complete the Floor Improvements. Lessor makes no representation or warranty
that $1,525.714.59 will be sufficient to complete the Floor Improvements, and
under no circumstances shall Lessor be obligated to fund more than $762,857.30
towards the completion of the Floor Improvements. Notwithstanding the foregoing,
if after all Building Systems Work is completed and paid for, it is determined
that the cost of the Building Systems Work was less than $189,700, the
difference between the actual cost of the Building Systems Work and $189,700
shall be available to pay the cost of constructing Floor Improvements (or to
reimburse Lessor and Lessee for such costs
2
if previously incurred). Notwithstanding anything to the contrary in this Second
Amendment or in the First Amendment, under no circumstances shall Lessor be
obligated to fund any portion of the Improvement Allowance for any purpose other
than the completion of the Building Systems Work and the Floor Improvements, and
Lessee shall not be entitled to a credit or other benefit due to the fact that
all of the Improvement Allowance is not used to pay for the Building Systems
Work and the Floor Improvements. The Floor Improvements shall include for each
floor (i) removal (not encapsulation) of all asbestos in accordance with all
applicable laws, (ii) installation of fire sprinklers, (iii) installation of new
restrooms and (iv) a buildout consistent with improvements previously
constructed for Lessee on the second and third floors of the Building. The first
Floor Improvements to be completed on a floor shall be asbestos removal and the
installation of fire sprinklers, and any other work associated with the
completion of such items. Lessee shall complete the Floor Improvements in
accordance with the Work Letter Agreement. The Floor Improvements shall be
completed by Lessee no later than October 1, 2004 subject to Force Majeure
Delays. As used herein, "Force Majeure Delays" shall mean any actual delay
beyond the reasonable control of Lessee in the construction of the Floor
Improvements, which is caused by, without limitation, any one or more of the
following: (i) strikes or labor disturbances; (b) war; (c) fire; (d) earthquake,
flood or other natural disaster; (e) unusual or unforeseeable delay not within
the reasonable control of Lessee or Contractor (as defined in the Work Letter
Agreement) or its Contractors subcontractors (excluding financial inability) in
transportation of materials or equipment and the unavailability of reasonable
substitutes therefor; (f) casualties; or (g) governmental action or inaction
(including failure, refusal or delay in issuing permits, approvals and/or
authorizations), or injunction, permit appeal or court order requiring cessation
of construction taking place in the Building and/or the Premises. Lessee's lack
of financial resources shall not constitute a Force Majeure Delay
4. Additional Building. Lessor and Lessee shall cooperate with each
other in coordinating the construction of the Additional Building in a way that
does not unnecessarily interfere with Lessee's use of the Building. However,
Lessee acknowledges and agrees that the construction of the Additional Building
may necessitate the relocation of some of the Building's parking area to a
reasonable temporary offsite location pursuant to paragraph 5 of the First
Amendment. Lessee acknowledges and agrees that the design, location and
construction of the Additional Building shall be determined by Lessor, in
Lessor's sole discretion. Lessee hereby assigns to Lessor its entire right,
title and interest in the Plans and Approvals without representation or warranty
of any kind other than as set forth herein and agrees to deliver the Plans and
Approvals to Lessor concurrently with its execution of this Second Amendment.
Such assignment shall not obligate Lessor to pay any cost or expense or to incur
any liability with respect to such Plans and Approvals.
5. Fifth Floor Tenancies.
---------------------
(a) Concurrently with the execution of this Second Amendment by
the parties hereto, Lessor, Lessee, on the one hand, and Xxxxxxxxx & Xxxxxxxxx
and Hotel Partners, Inc., on the other hand, shall execute the agreements
attached hereto as Exhibit "D" and incorporated herein by this reference (the
"Sublease Agreements
(b) The Lease is hereby amended to eliminate from the Premises
the space being occupied by Bankers Preferred Mortgage, Inc. (the "Direct
Tenant") and, except as provided in (c) below, the space being occupied by the
Direct Tenant (the "Eliminated Space") shall no longer be subject to the terms
and conditions of the Lease. The reduction of the size of the Premises by the
removal of the Eliminated Space shall not reduce the Base Rent payable by Lessee
under the Lease, Lessee's share of Operating Expense increases (i.e., Lessee's
share shall remain 100%) or any other payment obligation of Lessee under the
Lease. Lessor shall have the right to collect all rent and other charges from
the Direct Tenant. All rent and operating expense payments received by Lessor
from the Direct Tenant shall be credited towards the payment of amounts due from
Lessee to Lessor under the Lease for the calendar month following the calendar
month in which Lessor receives a payment from the Direct Tenant. Lessor shall
3
notify Lessee of its receipt of a payment from the Direct Tenant within ten (10)
days after it receives such payment. Lessor shall have no obligation to commence
a legal action against the Direct Tenant for non-payment of monies due under the
Direct Tenant's lease or for any other reason. Notwithstanding the foregoing, if
the Direct Tenant fails to pay rent or operating expense payments to Lessor and
such failure is a breach of the Direct Tenant's lease, upon Lessee's written
request, and subject to Lessee reimbursing Lessor on a monthly basis for all
costs and expenses incurred by Lessor (including, but not limited to, attorneys'
fees and court costs), Lessor shall file a legal action against the Direct
Tenant to recover the rent and/or operating expense payments. Any monies
recovered by Lessor in the legal action shall be applied first to reimburse
Lessor for any unpaid costs and expenses associated with the legal action, and
the remainder shall be credited to the next Base Rent payable by Lessee under
the Lease. Lessee's obligations under the Lease are in no way conditioned or
contingent upon the payment of rent or other amounts by the Direct Tenant, and
the failure of the Direct Tenant to perform any of its obligations under its
lease shall in no way reduce or otherwise modify Lessee's obligations under the
Lease.
(c) Lessor shall not voluntarily extend the term of the Direct
Tenant's lease or expand the space being occupied by the Direct Tenant. Upon the
termination of the Direct Tenant's lease and the return of possession of the
premises being occupied by the Direct Tenant to Lessor (the "Returned Space"),
the Lease shall automatically be deemed amended to make the Returned Space a
part of the Premises, as if the Returned Space had always been a part of the
Premises. The increase in the size of the Premises by the addition of the
Returned Space shall not increase the Base Rent payable by Lessee under the
Lease or Lessee's share of Operating Expense increases. At Lessors' request,
Lessee shall execute an amendment to the Lease confirming the addition of the
Returned Space to the Premises. After the Direct Tenant's Lease has terminated,
Lessee shall have the right to sublease space to the Direct Tenant in accordance
with the requirements of Paragraph 12 of the Lease.
(d) Lessee represents and warrants to Lessor that, to the best
of Lessee's actual knowledge, the Direct Tenant's lease and the lease of
Colbert, Xxxxxxxxx & Co., LLC ("Colbert") attached hereto as Exhibit "A"
(collectively, the "Direct Tenant Leases") are true, correct and complete copies
of the Direct Tenant Leases, that the Direct Tenant Leases are the only written
agreements with the Direct Tenant and Colbert and that there are no oral
agreements with the Direct Tenant or Colbert. Lessee further represents and
warrants to Lessor that, to the best of Lessee's actual knowledge, Xxx
Development Corporation, Dove Street, ICH and any other person or entity that
has been the "Lessor" under the Direct Tenant Leases, has never failed to
perform any of its obligations under the Direct Tenant Leases and that the
Direct Tenants have not failed to perform any of their obligations under the
Direct Tenant Leases. Lessee further represents and warrants that, to the best
of Lessee's actual knowledge, except for Lessee, the Direct Tenant and Colbert,
there are no other persons or entities with the right to use or occupy space in
the Building. Lessee shall indemnify, defend and hold Lessor harmless from and
against any cost, loss, liability, damage or expense (including, but not limited
to, attorneys fees and court costs) incurred by Lessor because the foregoing
representations and warranties are untrue in whole or in part. To the best of
Lessee's actual knowledge shall mean to the actual knowledge of Xxxxxx Xxxxxxxx
without duty of investigation.
6. Option to Extend - Paragraph 51 of the Original Lease is hereby
deleted in its entirety and shall be of no further force or effect. Lessor
hereby grants to Lessee the option to extend the term of the Lease for two (2)
consecutive five (5)-year periods (the "Extension Options") commencing when the
initial lease term expires (i.e., June 1, 2008) and when the first option term
expires (i.e., June 1, 2013) upon each and all of the following terms and
conditions:
(a) Lessee shall give to Lessor on a date which is prior to the date
that the applicable option period would commence (if exercised) by at least one
hundred eighty (180) days and not more than two hundred seventy (270) days, a
4
written notice of the exercise of the option to extend the Lease for said
additional term, time being of the essence. Such notice shall be given in
accordance with the requirements of the Original Lease. If notification of the
exercise of an option is not so given and received, all options granted
hereunder shall automatically expire.
(b) The provisions of section 39 of the Original Lease apply to the
option granted hereunder.
(c) All of the terms and conditions of the Lease except where
specifically modified by this section shall apply to each option term.
(d) The Base Rent payable during each option term shall be the
Market Rate on the date the option is exercised pursuant to (a) above.
(e) The term "Market Rate" shall mean the annual amount per rentable
square foot that a willing, comparable renewal tenant would pay and a willing,
comparable landlord of a similar office building (with tenant improvements in
similar condition) would accept at arm's length for similar space, giving
appropriate consideration to the following matters: (i) annual rental rates per
rentable square foot; (ii) the type of escalation clauses (including, but
without limitation, operating expense, real estate taxes, and CPI) and the
extent of liability under the escalation clauses (i.e., whether determined on a
"net lease" basis or by increases over a particular base year or base dollar
amount); (iii) rent abatement provisions reflecting free rent and/or no rent
during the lease term; (iv) length of lease term; (v) size and location of
premises being leased; and (vi) other generally applicable terms and conditions
of tenancy for similar space; provided, however, Lessee shall not be entitled to
any tenant improvement or refurbishment allowance. The Market Rate may also
designate periodic rental increases, a new Base Year and similar economic
adjustments. The Market Rate may also include fair market value charges for
parking if similar single-tenant offices are charging for parking.
(f) If Lessee exercises the Extension Option, Lessor shall determine
the Market Rate by using its good faith judgment. Lessor shall provide Lessee
with written notice of such amount within fifteen (15) days after Lessee
exercises an Extension Option. Lessee shall have fifteen (15) days ("Lessee's
Review Period") after receipt of Lessors notice of the new rental within which
to accept such rental. In the event Lessee fails to accept in writing such
rental proposal by Lessor, then such proposal shall be deemed rejected, and
Lessor and Lessee shall attempt to agree upon such Market Rate, using their best
good faith efforts. If Lessor and Lessee fail to reach agreement within fifteen
(15) days following Lessee's Review Period ("Outside Agreement Date"), then each
party shall place in a separate sealed envelope their final proposal as to the
Market Rate, and such determination shall be submitted to arbitration in
accordance with subsections (i) through (v) below. In the event that Lessor
fails to timely generate the initial notice of Lessor's opinion of the Market
Rate, then Lessee may commence such negotiations by providing the initial
notice, in which event Lessor shall have fifteen (15) days ("Lessor's Review
Period") after receipt of Lessee's notice of the new rental within which to
accept such rental. In the event Lessor fails to accept in writing such rental
proposed by Lessee, then such proposal shall be deemed rejected, and Lessor and
Lessee shall attempt in good faith to agree upon such Market Rate, using their
best good faith efforts. If Lessor and Lessee fail to reach agreement within
fifteen (15) days following Lessor's Review Period (which shall be, in such
event, the "Outside Agreement Date" in lieu of the above definition of such
date), then each party shall place in a separate sealed envelope their final
proposal as to Market Rate, and such determination shall be submitted to
arbitration in accordance with subsections (i) through (v) below.
5
ARBITRATION OF DISPUTES
(i) LESSOR AND LESSEE SHALL MEET WITH EACH OTHER WITHIN FIVE (5)
BUSINESS DAYS AFTER THE OUTSIDE AGREEMENT DATE AND EXCHANGE THEIR SEALED
ENVELOPES AND THEN OPEN SUCH ENVELOPES IN EACH OTHER'S PRESENCE. IF LESSOR AND
LESSEE DO NOT MUTUALLY AGREE UPON THE MARKET RATE WITHIN ONE (1) BUSINESS DAY OF
THE EXCHANGE AND OPENING OF ENVELOPES, THEN, WITHIN TEN (10) BUSINESS DAYS OF
THE EXCHANGE AND OPENING OF ENVELOPES, LESSOR AND LESSEE SHALL AGREE UPON AND
JOINTLY APPOINT A SINGLE ARBITRATOR WHO SHALL BY PROFESSION BE A REAL ESTATE
BROKER OR AGENT WHO SHALL HAVE BEEN ACTIVE OVER THE FIVE (5) YEAR PERIOD ENDING
ON THE DATE OF SUCH APPOINTMENT IN THE LEASING OF COMMERCIAL OFFICE BUILDINGS
SIMILAR TO THE PREMISES IN THE GEOGRAPHICAL AREA OF THE PREMISES. NEITHER LESSOR
NOR LESSEE SHALL CONSULT WITH SUCH BROKER OR AGENT AS TO HIS OR HER OPINION AS
TO THE MARKET RATE PRIOR TO THE APPOINTMENT. THE DETERMINATION OF THE ARBITRATOR
SHALL BE LIMITED SOLELY TO THE ISSUE OF WHETHER LESSOR'S OR LESSEE'S SUBMITTED
MARKET RATE FOR THE PREMISES IS THE CLOSEST TO THE ACTUAL MARKET RATE FOR THE
PREMISES AS DETERMINED BY THE ARBITRATOR, TAKING INTO ACCOUNT THE REQUIREMENTS
FOR DETERMINING MARKET RATE SET FORTH HEREIN. SUCH ARBITRATOR MAY HOLD SUCH
HEARINGS AND REQUIRE SUCH BRIEFS AS THE ARBITRATOR, IN HIS OR HER SOLE
DISCRETION, DETERMINES IS NECESSARY. IN ADDITION, LESSOR OR LESSEE MAY SUBMIT TO
THE ARBITRATOR WITH A COPY TO THE OTHER PARTY WITHIN FIVE (5) BUSINESS DAYS
AFTER THE APPOINTMENT OF THE ARBITRATOR ANY MARKET DATA AND ADDITIONAL
INFORMATION SUCH PARTY DEEMS RELEVANT TO THE DETERMINATION OF THE MARKET RATE
("RR DATA"), AND THE OTHER PARTY MAY SUBMIT A REPLY IN WRITING WITHIN FIVE (5)
BUSINESS DAYS AFTER RECEIPT OF SUCH RR DATA.
(ii) THE ARBITRATOR SHALL, WITHIN THIRTY (30) DAYS OF
HIS OR HER APPOINTMENT, REACH A DECISION AS TO WHETHER THE PARTIES SHALL USE
LESSOR'S OR LESSEE'S SUBMITTED MARKET RATE AND SHALL NOTIFY LESSOR AND LESSEE OF
SUCH DETERMINATION.
(iii) THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND
BINDING UPON LESSOR AND LESSEE.
(iv) IF LESSOR AND LESSEE FAIL TO AGREE UPON AND
APPOINT AN ARBITRATOR, THEN THE APPOINTMENT OF THE ARBITRATOR SHALL BE MADE BY
THE PRESIDING JUDGE OF THE ORANGE COUNTY SUPERIOR COURT, OR, IF HE OR SHE
REFUSES TO ACT, BY ANY JUDGE HAVING JURISDICTION OVER THE PARTIES.
(v) THE COST OF THE ARBITRATION SHALL BE PAID BY THE
PARTY WHOSE MARKET RATE IS NOT SELECTED BY THE ARBITRATOR.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
6
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
TO NEUTRAL ARBITRATION.
/s/ MR /s/ RM
--------------------- -------------------
(Lessor initials) (Lessee initials)
7. Building Services. Notwithstanding anything to the contrary
contained in the Lease, Building services shall be provided Monday through
Friday from 6:00 a.m. to 6:00 p.m. and Saturdays from 9:00 a.m. to 1:00 p.m.
Janitorial services shall be provided Sunday through Thursday, except on
holidays. HVAC and other Building services shall not be provided at other times
or on nationally recognized holidays. Nationally recognized holidays shall
include New Years Day, Xxxxxx Xxxxxx Xxxx Xx. Day, Presidents' Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. Lessor
shall use its best efforts to provide HVAC to Lessee at times other than those
set forth above subject to the payment by Lessee of the actual cost of providing
HVAC after hours.
8. Parking. Lessor shall have the right to gate the parking areas used
by Lessee. In addition, Lessor shall have the right to require Lessee to
participate in any reasonable parking control or security measures adopted by
Lessor. Lessor shall have the right to require the employees of Lessee to use a
parking card or similar device to gain entry to the parking area and to pay the
reasonable cost of replacing any lost or stolen parking card or similar device.
9. Brokers. Lessee and Lessor each represent and warrant to the other
that neither have had any dealings with any person, firm or broker in connection
with the negotiation of this Second Amendment and/or consummation of the
transaction contemplated hereby, and that no broker or other person, firm or
entity is entitled to any commission or finder's fee in connection with this
Second Amendment. Lessee and Lessor hereby agree to indemnify, defend, protect
and hold harmless the other from and against liability for compensation or
charges which may be claimed by any broker, finder or other similar party by
reason of any dealings or actions of the indemnifying party, including any
costs, expenses or attorneys' fees reasonably incurred with respect thereto.
10. General. Except as modified by this Second Amendment, all
terms and conditions of the Lease shall remain unmodified and in full force and
effect. Unless otherwise defined herein, capitalized terms used in this Second
Amendment shall have the same meaning as capitalized terms used in the Lease.
11. Counterparts. This Second Amendment may be executed in
counterparts. Each counterpart shall be deemed an original, and all counterparts
shall be deemed the same instrument with the same effect as if all parties
hereto had signed the same signature page.
IN WITNESS WHEREOF, the parties hereby execute this Second
Amendment as of the date first written above.
LESSOR LESSEE
THE REALTY ASSOCIATES FUND V, L.P., IMPAC MORTGAGE HOLDINGS, INC .,
a Delaware limited partnership a Maryland corporation
By: Realty Associates Fund V LLC, a
7
Massachusetts limited liability company, By: /s/ Xxxxxx Xxxxxxxx
general partner --------------------------
Its: Secretary
--------------------------
By: Realty Associates Advisors LLC,
a Delaware limited liability company, IMPAC FUNDING CORPORATION
Manager California corporation
By: Realty Associates Advisors By: /s/ Xxxxxx Xxxxxxxx
Trust, a Massachusetts --------------------------
business trust, sole member Its: Secretary
--------------------------
By: /s/ Xxxxxxx Xxxxx
------------------------
Officer
8
