Exhibit 10.26
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT, dated this 16th day of June, 2000 (this
"Amendment"), between GATEWAY SHERWOOD, INC., a California corporation, by RREEF
Management Company, a Delaware corporation, ("Landlord"), successor in interest
to WCB Twenty Limited Partnership, a Delaware limited partnership ("WCB"), and
NETRIX CORPORATION, d/b/a NX NETWORKS, f/k/a PROTEON, INCORPORATED ("Tenant"),
with respect to certain premises located in the building (the "Building")
commonly known as Nine Technology Drive, Westborough, Massachusetts.
RECITALS:
A. WCB and Tenant entered into that certain Lease dated December 19,
1994 for approximately 96,166 square feet in the Building
(the "Original Premises").
B. WCB and Tenant further entered into that certain Amendment to Lease
dated May 23, 1997, which, among other things, reduced the size of
the Original Premises to approximately 43,962 square feet
(the "Reduced Premises"). (The term "Lease" as used herein refers to
the Original Lease as amended in this recital.)
C. Landlord purchased WCB's interest in the Building and has acquired
all of WCB's right, title and interest to and under the Lease.
D. Landlord and Tenant desire to again amend the Lease by deleting
9,955 square feet of Rentable Floor Area (the "Vacated Space") from
the Reduced Premises (the Reduced Premises less the Vacated Space is
hereinafter referred to as the "Premises") demised under the Lease,
and by making certain other amendments to the terms and provisions
of the Lease, all as more fully set forth herein.
E. Landlord and EMC Corporation ("EMC") have previously entered into a
lease ("EMC Lease") pursuant to which EMC has agreed to lease the
Vacated Space.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. RECITALS. The recitals set forth above are hereby incorporated
herein as if fully set forth.
2. INCORPORATION. Except as modified herein, all other terms and
conditions of the Lease between the parties described above shall
continue in full force and effect. Tenant acknowledges that as of
the date of this Amendment, Tenant: (i) is not in default under the
terms of the Lease; (ii) has no defense, set off or counterclaim to
the enforcement by Landlord of the terms of the Lease; and (iii) is
not aware of any action or inaction by Landlord that would
constitute an Event of Default by Landlord under the Lease.
3. EFFECTIVE DATE. This Amendment shall take effect on the earlier to
occur of: (i) the date Tenant actually delivers the Vacated Space to
Landlord pursuant to Section 10 of this Amendment; or (ii) 12:01 am
on June 16, 2000 (the "Effective Date").
4. EXTENSION TERMS. As of the Effective Date, the definition of
"EXTENSION TERMS" set forth in Section 1.1 of the Lease and the
provisions of Section 2.4.1 of the Lease are hereby deleted in their
entirety. Tenant acknowledges and agrees that it has no option to
extend the term of the Lease past April 30, 2002.
5. RENT AND OTHER CHARGES. The definition of "ANNUAL FIXED RENT" set
forth in Section 1.1 of the Lease shall remain unchanged, except
that the paragraph entitled "Extension Terms" shall be deleted in
its entirety. Tenant acknowledges agrees that it remains responsible
for any other charges as specified in the Lease through the Initial
Term Expiration Date.
6. PREMISES. As of the Effective Date, the definition of "PREMISES" set
forth in Section 1.1 of the Lease shall be deleted in its entirety
and the following inserted in its place:
"PREMISES: The Premises, comprising 34,007 square
feet of Rentable Floor Area on the
first floor of the Building, are
outlined on EXHIBIT A attached hereto
and incorporated by reference herein."
7. RENTABLE FLOOR AREA. As of the Effective Date, the definition of
"RENTABLE FLOOR AREA OF PREMISES" set forth in Section 1.1 of the
Lease shall be deleted in its entirety and the following inserted
in its place:
"RENTABLE FLOOR AREA
OF PREMISES: 34,007 square feet."
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8. TENANT'S PROPORTIONATE SHARE. As of the Effective Date, the
definition of TENANT'S PROPORTIONATE SHARE" set forth in Section 1.1
of the Lease shall be deleted in its entirety and the following
inserted in its place:
"TENANT'S PROPORTIONATE
SHARE: Thirteen and 56/100 percent (13.56%),
being the ratio of the Rentable
Floor Area of the Premises to the
Rentable Floor Area of the Building."
9. PLAN OF PREMISES. As of the Effective Date, EXHIBIT A of the Lease
shall be deleted in its entirety and the new EXHIBIT A
attached hereto shall be inserted in its place.
10. VACATION OF SPACE. On or before the Effective Date, Tenant shall
vacate and deliver to Landlord the Vacated Space free and clear of
all personal property, equipment and trade fixtures and in broom
clean condition, and otherwise in the condition required of Tenant
as of the normal expiration of the Lease term.
11. DEMISING COSTS. Tenant hereby agrees that it will be responsible for
one-third (1/3) of any and all costs associated with the demising of
the Vacated Space (the "Demising Costs") for EMC, including, but not
limited to, architect, engineering and construction management fees.
Notwithstanding anything to the contrary, Tenant's obligation
hereunder shall not exceed one-third (1/3) of the estimated cost of
such demise (the "Estimated Cost"). The Estimated Cost is
hereinafter defined as Twenty Nine Thousand Dollars and No/Cents
($29,000.00), plus or minus five percent (5%) thereof for fees.
Landlord agrees to use its best efforts to insure that the Demising
Costs meet or fall below the Estimated Cost.
12. BROKERS. Each of the parties represents and warrants to the other
that it has not dealt with any broker or finder in connection with
this Amendment. Each of the parties agree to indemnify, defend and
protect the other from and against, any and all costs, fees and
other expenses resulting from a breach by the party of their
covenant under this section.
13. IRREVOCABLE OFFER. Submission of this Amendment to Tenant by
Landlord shall not be deemed to be an offer, and Landlord shall not
be bound by this Amendment until it has received a copy of this
Amendment duly executed by Tenant and has delivered to Tenant a copy
of this Amendment duly executed by Landlord, and until such delivery
by Landlord, the unmodified Lease shall remain in full force and
effect.
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14. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claims against
Landlord under the Lease and this Amendment shall only be made
against Landlord to the extent of Landlord's interest in the
Building. The obligations of Landlord under the Lease and this
Amendment shall not be personally binding on, nor shall any resort
be had to the private properties of, any of its trustees or board of
directors and officers, as the case may be, the general partners
thereof or any beneficiaries, stockholders, employees or agents of
Landlord, or the investment manager.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the day and year first written above.
LANDLORD: TENANT:
GATEWAY SHERWOOD, INC., NETRIX CORPORATION
a California corporation
By: RREEF America LLC, a Delaware
limited liability company, its
investment advisor, hereunto
duly authorized
By:__________________________________ By:________________________________
Eric Berke
District Manager Title:_____________________________
Dated: _____________________, 2000 Dated:_________________, 2000
By:___________________________________
A. Jay Jehle
Authorized Representative
Dated: _____________________, 2000
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EXHIBIT A
PREMISES
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