**Exhibit 10.55**

 

**THIRD AMENDMENT TO LEASE**

 

THIS THIRD AMENDMENT TO LEASE (this “Amendment”) is made as of the 1st day of Nov,2001, by and between Enterprise Way Associates, LLC, a Delaware limited liability company (“Landlord”) and Borland Software Corporation, f/k/a/ Inprise Corporation, a Delaware corporation (“Tenant”), with reference to thefollowing facts and objectives: 

 

 

**RECITALS**

 

A. ScanlanKemperBard Companies, an Oregon corporation, a predecessor in interest to Landlord, as landlord and Tenant, as tenant, entered into that certain Lease dated as of February 17, 2000 (the“Original Lease”), as amended by that certain First Amendment to Lease dated September 30th, 2000 (the “First Amendment”) and that certain Second Amendment to Lease dated June 1st, 2001 (the “SecondAmendment”), pertaining to certain premises located in Modules D-3, E and F and storage space located in the storage area on the lower level (the “Storage Space”) at 100 Enterprise Way, Scotts Valley, California (the“Premises”). The Original Lease, as amended by the First Amendment and the Second Amendment, shall be referred to herein as the “Lease”. 

 

B. The Premises leased to Tenant under the Original Lease included as part of the Storage Space a demarcation room on the lower level ofModule F-1 (the “Demarcation Room”). Under the First Amendment, Landlord and Tenant reduced the size of the Premises to eliminate a portion of the Demarcation Room. Tenant now wishes to further reduce the size of the Premises to eliminatethe remaining portion of the Demarcation Room. 

 

C. Tenant was given certain rights to use the auditorium located on the Project (the “Auditorium”) pursuant to the Original Lease, as amended by the First Amendment. Tenant wishes to have increased rights to use theAuditorium. 

 

D. The parties desire to amend theLease to (i) further reduce the size of the Premises to exclude the remaining portion of the Demarcation Room and (ii) give Tenant increased rights to use the Auditorium. 

 

 

**AGREEMENT**

 

NOW, THEREFORE, in consideration of good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 

 

1. Effective Date. This Amendment shall be effective as of November 1, 2001 (the “Effective Date”). 

 

2. Reduction in Size of Premises. As of the EffectiveDate, the Premises shall be reduced in size to exclude the remaining portion of the Demarcation Room. Prior to the Effective Date, Tenant shall remove any of its personal property, fixtures or equipment located in the remaining portion of theDemarcation Room and surrender possession thereof to Tenant in the condition required under the Lease. 

 

a. As of the Effective Date, the reference in Section D of the Summary of Basic Lease Terms to “161,201” (whichwas changed in the First Amendment to “150,476”) shall be changed to “149,627” 

and the reference to “19,036” (which was changed in the First Amendment to“9,578”) shall be changed to “8,729”. ****

 

b. In Section G of the Summary of Basic Lease Terms, as of the Effective Date, the reference to “44.14%” (which was changed in the First Amendment to “40.63%”) shall be changed to“40.40%”. 

 

c. InSection K of the Summary of Basic Lease Terms, as of the Effective Date, the rent schedule (which was replaced in the First Amendment and the Second Amendment) shall be replaced with the following: 

 

**Year**
    
**Base Monthly Rent for the**

**Premises Located in Modules**

**D-3, E and F**
 
**Base Monthly**

**Rent for the**

**Storage Space**

Remainder of Year 2
    
$313,534.29
 
$4,495.43

3
    
$322,940.32
 
$4,630.30

4
    
$332,628.53
 
$4,769.20

5
    
$342,607.39
 
$4,912.28

6
    
$352,885.61
 
$5,059.65

7
    
$363,472.18
 
$5,211.44

8
    
$374,376.34
 
$5,367.78

9
    
$385,607.63
 
$5,528.81

10
    
$397,175.86
 
$5,694.68

 

d. As of the Effective Date, Exhibit A of the Lease (“Site Plan of the Project Containing Description of the Premises”) shall be deleted and replaced with Exhibit A attached hereto. 

 

e. As of the Effective Date, the term“Premises” shall refer to the premises shown on Exhibit A attached hereto. 

 

3. Auditorium. As of the Effective Date, Section 16(e) of the First Amendment shall be deleted and replaced with the following: 

 

In consideration for Tenant’s payment of the amount set forth in the following sentence, Landlord shallpermit Tenant to use (i) the auditorium located in the Building ten (10) days per calendar quarter (regardless of the number of hours per use) and (ii) the conference rooms located in Module D-2 four (4) hours per week, in each case without payingLandlord’s standard charge or any additional charges for the use thereof. On January 1, April 1, July 1 and October 1 of each year, Tenant shall pay as Additional Rent an amount equal to Two Thousand Five Hundred Dollars ($2,500) for the rightto use the auditorium and conference rooms as set forth in the preceding sentence. Notwithstanding the foregoing, Tenant’s right to use the auditorium set forth in the first sentence of this section and the Additional Rent therefore shall beprorated for the period from November 1, 2001 through December 31, 2001, such that Tenant shall be entitled to use the auditorium without additional charge for seven (7) days during such period, and the Additional Rent for such usage due on January1, 2002 shall be One Thousand Six Hundred Sixty-Six and 67/100 Dollars ($1,666.67). All such usage described in this section shall be subject to Landlord’s rights and Tenant’s obligations under Section 6.3 of the Lease, including, withoutlimitation (A) scheduling such usage in accordance with Landlord’s then-current procedures, on a first-come, first-served basis, (B) Tenant’s obligation to pay for clean-up costs after using such areas, (C) Tenant not charging Landlord forany services provided 

 

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by Kelsay or any other employee or contractor providing services in connection therewithand (D) Landlord’s right, as described in Section 6.3 of the Lease, to eliminate the auditorium and meeting rooms in the Building. Any additional usage of the auditorium, Module D-2 conference rooms or other portions of the Common Areas shallbe on all of the terms set forth in Section 6.3 of the Lease, including payment of Landlord’s standard charges therefor; provided, however, Tenant shall have the right to use the auditorium for additional days, subject to the restrictions setforth in this sentence, for Five Hundred Dollars ($500) per day (rather than Landlord’s standard charge), which amount may be increased by Landlord (i) from time to time to reflect increases in Landlord’s actual costs in operating theauditorium and (ii) to an amount up to Landlord’s then-standard charge for use of the auditorium in the event that there is a substantial increase in requests to use the auditorium by other occupants of the Project. 

 

4. Miscellaneous. This Amendment, together with theLease, constitutes the entire agreement between Landlord and Tenant regarding the Lease and the subject matter contained herein and supersedes any and all prior and/or contemporaneous oral or written negotiations, agreements or understandings. ThisAmendment shall be binding upon and inure to the benefit of Landlord and Tenant and their respective heirs, legal representatives, successors and assigns. No subsequent change or addition to this Amendment shall be binding unless in writing and dulyexecuted by both Landlord and Tenant. Except as specifically amended hereby, all of the terms and conditions of the Lease are and shall remain in full force and effect and are hereby ratified and confirmed. Capitalized terms used but not defined inthis Amendment shall have the meanings ascribed to such terms in the Lease. 

 

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IN WITNESS WHEREOF, the parties have executed this Amendment, by their duly authorizedsignatories, as of the day and year first above written. 

 

LANDLORD:

ENTERPRISE WAY ASSOCIATES LLC

By:
 
PRAEDIUM IV ENTERPRISE LLC, ITS MANAGINGMEMBER        

 

By:
 
THE PRAEDIUM PERFORMANCE FUND IV, L.P., ITS MANAGINGMEMBER        

 

By:
 
PRAEDIUM PERFORMANCE PARTNERS, LLC, ITS GENERALPARTNER      

 

By:
 
/S/    CHRISTOPHERHUGHES      
  
**Name: Christopher Hughes**
  
**Title:**

 

 

TENANT:

BORLAND SOFTWARE CORPORATION, F/K/A INPRISECORPORATION, A DELAWARECORPORATION

By:
 
/S/    ROGER A. BARNEY  
  
**Name: Roger A. Barney**
  
**Title: SRVP Corporate Services/CAO**

 

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EXHIBIT A

 

PREMISES 

 

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