EXHIBIT 10.63
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (the "AMENDMENT") is made and entered into as of
the 18th day of November, 2003, by and between CA-THE CONCOURSE LIMITED
PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("LANDLORD"), and BROCADE
COMMUNICATIONS SYSTEMS, INC., A DELAWARE CORPORATION ("TENANT").
RECITALS
A. Landlord (as successor by conversion to EOP-The Concourse, L.L.C., a
Delaware limited liability company, the successor in interest to
Spieker Properties, L.P., a California limited partnership) and Tenant
are parties to that certain lease dated December 17, 1999 (the
"ORIGINAL LEASE"), which Original Lease has been previously amended by
instruments dated February 16, 2000 (the "FIRST AMENDMENT"), August 11,
2000 (the "SECOND AMENDMENT") and November 30, 2000 (the "THIRD
AMENDMENT") (collectively, the "LEASE"). Pursuant to the Lease,
Landlord has leased to Tenant space currently containing approximately
271,387 rentable square feet (the "PREMISES") comprised of all of the
rentable area, approximately 210,667 rentable square feet, in the
building commonly known as The Concourse VI located at 1745 Technology
Drive, San Jose, California ("BUILDING VI"), and 60,710 rentable square
feet described as Suite Nos. 250, 260, 300 and 500 on the 2nd, 3rd and
5th floors of the building commonly known as The Concourse V located at
1741 Technology Drive, San Jose, California ("BUILDING V") in the
project commonly known as "THE CONCOURSE".
B. Tenant and Landlord mutually desire that the Lease be amended on and
subject to the following terms and conditions. Terms capitalized and
not defined herein shall have the definition given them in the Lease or
Exhibit A attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. APPROVAL OF ALTERATIONS. Landlord and Tenant agree that, effective as
of the date hereof, Tenant has made and Landlord approved all
Alterations made by Tenant in Building VI prior to the date this
Amendment, including, without limitation, certain Alterations related
to the Building VI HVAC systems (the "HVAC Related Alterations") and
certain other Alterations, all as listed in Section I of Exhibit A
attached hereto (collectively the "EXISTING ALTERATIONS"). Landlord and
Tenant acknowledge and agree that certain other Alterations listed on
Section II of Exhibit A attached hereto are Existing Alterations that
have been made and shall be deemed approved by Landlord, on the same
terms and conditions contained herein (subject to no additional fee or
removal requirements except as expressly provided in the initial
approval and in this Amendment), if Tenant provides Landlord with
written evidence of such approval no later than December 31, 2003. If
no such evidence of approval (or deemed approval pursuant to Section
12(C) of the Lease) is provided to Landlord by December 31, 2003, then
such Alterations shall thereafter be subject to Landlord's approval and
may be required to be removed upon expiration or termination of this
Lease to the extent provided in the Lease.
A. Conditions of Approval of Alterations.
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(1) Administrative Fee. Tenant shall, upon the execution of this
Amendment, pay Landlord an administration fee of fifty
thousand dollars ($50,000), which shall be deemed to be equal
to 5% of the cost of the Existing Alterations, as required by
Section 12 of the Lease.
(2) Representations and Warranties. As of the date of this
Amendment, Tenant represents and warrants that the following
are true:
(a) Exhibit A hereto contains an accurate and complete
description of all Alterations constructed by or on
behalf of Tenant in the Premises after the date of
the Original Lease and through the date of this
Amendment (provided that the parties acknowledge that
some of the items listed on Exhibit A are Tenant
Improvements).
(b) All of the HVAC Related Alterations were installed in
accordance with all applicable laws and regulations
and as otherwise described in Exhibit A hereto.
(c) Tenant has provided Landlord a copy of all invoices,
receipts, written documentation and warranties
applicable to the Existing Alterations and the work
performed in connection with the Existing Alterations
to the extent required under the Lease.
(d) The terms of Section 8 (regarding Insurance and
Indemnification) of the Lease shall specifically
apply to the HVAC Related Alterations, including,
without limitation, to the roof space or portions of
the roof accessed or utilized by Tenant, its
representatives, agents, employees or contractors.
B. Covenants. As of January 1, 2004, and for the remainder of the term of
this Amendment, including any extension thereof (the "TERM"), Tenant
shall be responsible for those matters set forth in this Section B:
(a) Tenant shall be responsible for any increased costs
to Building VI or The Concourse generated by the HVAC
Related Alterations, including, without limitation,
all taxes, assessments, charges, fees and other
governmental impositions levied or assessed on or
because of the HVAC Related Alterations, and any
increased electrical costs and the cost of installing
a submeter if Building VI becomes a multi-tenant
building and Landlord requires such a submeter to
measure electrical consumption.
(b) Tenant shall be solely responsible for the
maintenance of the building systems serving Building
VI for HVAC and all controls appurtenant thereto,
including, without limitation, the HVAC Related
Alterations (collectively, the "HVAC SYSTEMS"),
provided that the HVAC Systems shall not include any
component of those systems listed on Exhibit B
hereto. In addition, Tenant shall be solely
responsible for the maintenance of the secondary
distribution electrical systems (as more
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clearly defined in Section III of Exhibit A attached
hereto) serving the laboratories in Building VI and
all controls appurtenant thereto (the "SECONDARY
DISTRIBUTION SYSTEMS"). Tenant shall at all times
maintain the HVAC Systems and Secondary Distribution
Systems in a condition consistent with the operation
of a first-class office building. Tenant's
obligations hereunder include, without limitation,
the replacement, at Tenant's sole cost and expense,
of any portions of the HVAC Related Alterations and
portions of the Existing Alterations related to the
Secondary Distribution Systems (but not the remaining
portions of the HVAC Systems or base building
electrical systems, which shall be subject to Section
1(B)(g) below) if it would be commercially prudent to
replace, rather than repair, such portions of the
HVAC Related Alterations and such other Existing
Alterations, regardless of whether such replacement
would be considered a capital expenditure, provided
that Tenant may, in its reasonable discretion and
provided that such removal shall not negatively
affect the overall condition of Building VI, elect to
remove instead of replace any component of the HVAC
Related Alterations, other Existing Alterations or
Secondary Distribution Systems at the end of such
component's useful life. In addition, Tenant shall
comply with all applicable laws (including permitting
requirements) and shall provide Landlord with a copy
of any drawings and correspondence related to
securing permits, at the time transmitted, as well as
current as-built drawings of the electrical plans for
Building VI on June 30 and December 31 of each
calendar year, which as-built plans shall depict the
Secondary Distribution Systems.
(c) In connection with Tenant's maintenance and repair
obligations contained in subsection (b) above, Tenant
shall, at its own cost and expense, enter into a
preventive maintenance service contract with a
maintenance contractor approved by Landlord, in its
reasonable discretion, for servicing the HVAC
Systems, and shall provide copies of such contract
and periodic maintenance reports to Landlord. At
Landlord's option, at any time in which an uncured
event of default exists under the Lease, the
maintenance service contract shall be prepaid on an
annual basis. The maintenance contract shall
specifically name Landlord as a third party
beneficiary, with the right to receive copies of all
notices delivered under such contract and the ability
to exercise Tenant's rights thereunder, at Landlord's
election, in connection with any cure of Tenant's
default by Landlord, or any assumption by Landlord of
Tenant's maintenance obligations with respect to the
HVAC Systems.
(d) Upon expiration or earlier termination of the Lease
or Tenant's right to possession of the Premises,
Landlord, at its option, shall have the right to
require Tenant, at Tenant's sole cost and expense, to
restore or remove any Alterations installed after the
date of this Amendment (to the extent provided in the
Lease). In addition, Tenant acknowledges and agrees
that it shall, upon the expiration or earlier
termination of the Lease or Tenant's right to
possession of the
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Premises, remove the 2'x4' ceiling grids and
referenced in the letter to Sigmatech from Landlord
(or its predecessor in interest) regarding same and
dated February 17, 2000 (the "REMOVABLES"), and
Tenant shall restore the area(s) affected by the
Removables to the condition such areas were in prior
to installation of such Removables, ordinary wear and
tear excepted. Landlord acknowledges and agrees that
Tenant shall not be required to remove or to restore
the Transformer Alterations, Main Electrical
Switchboard Alterations or any HVAC Equipment (each
as defined in Exhibit A hereto) to the condition the
transformers and related conductors were in prior to
commencement of the Lease.
(e) Any damage related to the installation, maintenance,
operation and removal of the Existing Alterations (to
the extent not caused by Landlord's gross negligence
or intentional misconduct), shall be repaired by
Tenant, in a manner previously approved by Landlord,
or, in Landlord's sole and absolute discretion and
with prior notice to Tenant, by Landlord or a third
party contractor hired by Landlord, at the sole cost
and expense of Tenant. This provision shall survive
any expiration or termination of the Lease.
(f) The Existing Alterations shall remain the property of
Tenant (unless expressly the property of PG&E as
provided in Exhibit A hereto) until the expiration or
earlier termination of the Lease or Tenant's right to
possession of the Premises, at which time they shall
become the property of Landlord unless they are
required to be removed by the express terms of this
Amendment.
(g) Landlord and Tenant acknowledge and agree that THE
"LANDLORD MAINTAINED SYSTEMS" set forth in Exhibit B
attached hereto shall be deemed included in
Landlord's repair, maintenance and replacement
obligations as provided in Section 10 of the Lease,
and the cost of such repair, maintenance and
replacement shall be included in Operating Expenses
to be billed to Tenant as provided in Section 7 of
the Lease to the extent they are properly included in
the definition of "Operating Expenses". In addition,
Landlord (and not Tenant) shall be responsible for
the replacement of portions of the HVAC Systems and
Electrical Systems, other than the HVAC Related
Alterations and other Existing Alterations, and the
cost of such replacement shall be included in
Operating Expenses to be billed to Tenant as provided
in Section 7 of the Lease to the extent they are
properly included in the definition of "Operating
Expenses". Landlord shall reasonably cooperate to
maintain the BMS (as defined in Exhibit B) in the
manner required for Tenant to operate the HVAC
Systems, including by making temperature adjustments
and programming adjustments reasonably required and
noticed by Tenant during regular building hours. In
connection with such maintenance of the BMS, Landlord
shall promptly notify Tenant if as soon as reasonably
possible after Landlord learns that the BMS is at any
time not working, impaired or
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damaged, and at the Tenant's request shall provide
current documentation with respect to such
maintenance and access to the BMS for purposes of
inspection of same by the Tenant or as required by
applicable Regulations. Landlord further agrees that
Tenant shall have the right to add a stand-alone BMS
unit within Building VI that would be sufficient to
support the HVAC Systems, subject to Landlord's
reasonable approval as provided in the Lease for
Alterations. Landlord also agrees that Tenant shall
have the right to read meters in the electrical
rooms, inspect the base electrical systems in
Building VI and make electrical repairs, provided
that such repairs shall be performed by MCM,
Cupertino Electric or another electrical contractor
previously approved in writing by Landlord, and
further provided that Tenant shall notify Landlord,
in writing, of the nature of repairs.
II. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective
as of the date of this Amendment (unless different effective date(s)
is/are specifically referenced in this Section), the Lease shall be
amended in the following additional respects:
A. Landlord's Notice Addresses. The Basic Lease Information
section of the Lease is hereby amended to reflect that notices
to Landlord shall be addressed as follows:
Landlord: With a copy to:
CA-The Concourse Limited Partnership Equity Office
c/o Equity Office One Market Street
1740 Technology Drive Spear Tower, Suite 600
Suite 150 San Francisco, CA 94105
San Jose, California 95110 Attention: Regional Counsel- San Jose Region
Attention: Property Manager
Rent shall be made payable to the entity, and sent to the
address, Landlord designates and shall be made by good and
sufficient check or by other means acceptable to Landlord.
B. Waivers.
1. Tenant hereby waives any and all rights under and
benefits of subsection 1 of Section 1932, Sections
1941 and 1942 of the California Civil Code (Repairs
and Alterations), or any similar or successor laws
now or hereinafter in effect.
2. REMEDIES. TENANT HEREBY WAIVES ANY AND ALL RIGHTS
CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF
CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE
CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL
OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN
EFFECT DURING THE LEASE TERM, AS AMENDED HEREBY,
PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM,
REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS
TERMINATION BY
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REASON OF TENANT'S BREACH. TENANT ALSO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO
TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS LEASE, AS HEREBY AMENDED.
III. MISCELLANEOUS.
A. This Amendment and the following exhibits and attachments
attached hereto, which are hereby incorporated into and made a
part of this Amendment, set forth the entire agreement between
the parties with respect to the matters set forth herein.
There have been no additional oral or written representations
or agreements. In no event shall this Amendment be construed
as giving Tenant any new entitlement to any Rent abatement,
improvement allowance, leasehold improvements, or other work
to the Premises, or any similar economic incentives that may
have been provided Tenant in connection with entering into the
Lease, unless specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same
to Tenant.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"LANDLORD RELATED PARTIES") harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the
"TENANT RELATED PARTIES") harmless from all claims of any
brokers claiming to have represented Landlord in connection
with this Amendment.
G. Each signatory of this Amendment represents hereby that he or
she has the authority to execute and deliver the same on
behalf of the party hereto for which such signatory is acting.
H. This Amendment may be executed in any number of identical
counterparts, any
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or all of which may contain the signatures of less than all of
the parties, and all of which shall be construed together as
but a single instrument.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
CA-THE CONCOURSE LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP
By: EOM GP, L.L.C., a Delaware limited liability company, its
general partner
By: Equity Office Management, L.L.C., a
Delaware limited liability company, its non-member
manager
By: /s/ John W. Petersen
-----------------------------------------------
Name: John W. Petersen
Title: Regional Senior Vice President
TENANT:
BROCADE COMMUNICATIONS SYSTEMS, INC., A
DELAWARE CORPORATION
By: /s/ Antonio Canova
--------------------------------
Name: Antonio Canova
Title: CFO
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EXHIBIT A
EXISTING ALTERATIONS
I. The following Alterations have been made by Tenant to Building VI and
have been previously approved by Landlord, some of which are part of
the Tenant Improvements:
A. "MAIN ELECTRICAL SWITCHBOARD ALTERATIONS".
Prior to the completion of the Existing Alterations, 2 main electrical
lines, or busses, served the electrical demand for Tenant's Premises in
Building VI (i.e. 1745 Technology Drive). These busses were fed from
one main electrical switchboard located in the main electrical room on
the ground floor of Building VI. In order to balance the electrical
load between these busses, Tenant relocated one of the busses from the
main electrical switchboard to the second main electrical switchboard,
also located in the main electrical room on the ground floor of
Building VI.
Tenant completed the work, in accordance with the plans titled
"Existing & New Single Line Design", consisting of Sheet E-39, prepared
by Sasco, as engineered by Charles C. Nguyen, dated 2/1/2000, as last
revised 6/9/2000, and referring to "Cadfile #0122-S dated 3/11/2002"
(the "MAIN ELECTRICAL SWITCHBOARD ALTERATIONS"). Such work was
performed by Sasco Valley Electric.
B. "TRANSFORMER ALTERATIONS".
Tenant replaced two existing 1000 KVA transformers servicing Building
VI (i.e. 1745 Technology Drive) and belonging to Pacific Gas & Electric
(PG&E), with two 2500 KVA transformers, and increased the conductors,
or feeders, from the transformers to the main switchboard in order to
facilitate the full capacity of the two larger replacement transformers
(the "TRANSFORMER ALTERATIONS"). Such work was performed by, and the
replacement transformers belong to, PG&E.
C. "TEMPORARY CHILLERS AND GENERATORS".
Tenant acknowledges and agrees that it has installed, used and removed
temporary chillers and generators in the parking lot of the Building in
order to provide electrical power and HVAC service to Building VI
during the Service Interruption Period.
D. "SUPPLEMENTAL HVAC".
Tenant acknowledges and agrees that it has installed in Building VI,
including on the roof, the following equipment (the "HVAC EQUIPMENT")
for use in connection with Tenant's computer/data center room and lab
rack systems in the Premises located in Building VI:
Two (2) RTAA 200 ton Chillers
Chilled Water Pumps
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Emergency
Generator Uninterrupted Power Supply Systems
Expansion Tank
Heat Pumps
Sput System Fan Coil Units ACI-1
Sput System Condensing Unit ACI-1
Two (2) Liebert Systems (LU5-1 and LU5-2)
Twenty Three (23) Fan Coil Units
The HVAC Equipment installed on the roof of Building VI does
not exceed, in the aggregate, 400 tons of chilling capacity.
The area in which Landlord has approved and Tenant has
installed the HVAC Equipment on the roof space is the "CHILLER
ROOF SPACE".
Tenant acknowledges and agrees that it has also installed in
Building V, the following equipment, which will also be part
of the HVAC Equipment, for use in connection with Tenant's
systems in the Premises located in Building V:
Five (5) Heat Pumps
E. FIRST FLOOR EAST SIDE OFFICE RECONFIGURATION
II. The following Alterations have been made by Tenant to Building VI and
remain subject to Landlord's approval and the requirement, to the
extent provided in the Lease, that they be removed upon expiration or
earlier termination of the Lease, unless and until Tenant either
submits proof of prior approval (or deemed approval pursuant to the
Lease) as provided in the Amendment to which this Exhibit A is attached
or obtains Landlord's approval hereafter:
A. Supplemental HVAC
Three (3) thirty ton floor-mounted air handler units
B. Electrical
Two (2) Panels
One (1) Transformer
Electrical Distribution within the Laboratories
III. "SECONDARY DISTRIBUTION SYSTEMS" shall mean all electrical feeds from
electrical panels. The following functions with respect to Secondary
Distribution Systems may be performed by Tenant without Landlord's
prior consent:
Additions, deletions and rerouting of circuitry supporting laboratories
Wire mold
Starline BUS
Dedicated outlets
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EXHIBIT B
LANDLORD MAINTAINED SYSTEMS
The following shall be "LANDLORD MAINTAINED SYSTEMS":
Life safety systems and core generator
Base electrical systems other than Secondary Distribution Systems
Base plumbing systems and all controls appurtenant thereto
Siemens DDC Building Management System in Garage that services the HVAC Systems
and the life safety systems (the "BMS")
Roof Membrane
Windows and window frames
Elevators
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