EXHIBIT - 10.64
FIFTH AMENDMENT
THIS FIFTH 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, which lease
has been previously amended by instruments dated February 16, 2000 (the
"First Amendment"), August 11, 2000 (the "Second Amendment"), November
30, 2000 (the "Third Amendment") and November ___, 2003 (the "Fourth
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 (i) all of
the rentable area, approximately 210,667 rentable square feet
("Original Premises"), in the building commonly known as The Concourse
VI located at 1745 Technology Drive, San Jose, California ("Building
VI"), (ii) 39,043 rentable square feet (the "Expansion Premises")
described as Suite Nos. 250, 260, 500 on the 2nd, and 5th floors of the
building commonly known as The Concourse V located at 1741 Technology
Drive, San Jose, California ("Building V"), and (iii) 21,667 rentable
square feet (the "Second Expansion Premises") described as Suite No.
300 on the 3rd floor of 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.
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. AMENDMENT. Retroactively effective as of the date of the Second
Amendment, Landlord and Tenant agree that the Lease shall be amended in
accordance with the following terms and conditions:
A. Scheduled Term Expiration Date. The parties agree that the
"Scheduled Term Expiration Date", unless sooner terminated in
accordance with the Lease, shall mean August 31, 2010.
B. Section 1, "Rent", of the Second Amendment, shall be deleted
in its entirety and replaced with the following:
"A. RENT. Subject to the provisions of Paragraphs 2.B,
Base Rent, net of Operating Expenses per Paragraph 7
of this Lease and net of any "additional rent"
otherwise due under this Lease, for the Premises
shall be as follows:
1. ORIGINAL PREMISES FROM TERM COMMENCEMENT
DATE THROUGH
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SCHEDULED TERM EXPIRATION DATE. As of the
Term Commencement Date, the schedule of Base
Rent payable with respect to the Original
Premises during the Term is the following:
MONTHLY
PERIOD BASE RENT
(09/01/00) - (08/31/01) $516,159.00
(09/01/01) - (08/31/02) $531,643.00
(09/01/02) - (08/31/03) $547,593.00
(09/01/03) - (08/31/04) $564,020.00
(09/01/04) - (08/31/05) $580,941.00
(09/01/05) - (08/31/06) $598,369.00
(09/01/06) - (08/31/07) $616,320.00
(09/01/07) - (08/31/08) $634,810.00
(09/01/08) - (08/31/09) $653,854.00
(09/01/09) - (08/31/10) $673,470.00
All such Base Rent shall be payable by
Tenant in accordance with the terms of the
Lease.
2 EXPANSION PREMISES FROM EXPANSION PREMISES
TERM COMMENCEMENT DATE THROUGH SCHEDULED
TERM EXPIRATION DATE. As of the Expansion
Premises Term Commencement Date, the
schedule of Base Rent payable with respect
to the Expansion Premises during the balance
of the Term is the following:
MONTHLY
PERIOD BASE RENT
(09/01/00) - (08/31/01) $111,273.00
(09/01/01) - (08/31/02) $114,611.00
(09/01/02) - (08/31/03) $118,049.00
(09/01/03) - (08/31/04) $121,591.00
(09/01/04) - (08/31/05) $125,238.00
(09/01/05) - (08/31/06) $128,995.00
(09/01/06) - (08/31/07) $132,865.00
(09/01/07) - (08/31/08) $136,851.00
(09/01/08) - (08/31/09) $140,957.00
(09/01/09) - (08/31/10) $145,185.00
All such Base Rent shall be payable by
Tenant in accordance with the terms of the
Lease.
3 SECOND EXPANSION PREMISES FROM SECOND
EXPANSION PREMISES TERM COMMENCEMENT DATE
THROUGH SCHEDULED TERM EXPIRATION DATE. As
of the Second Expansion Premises Term
Commencement Date, the schedule of Base Rent
payable with respect to the Second Expansion
Premises during the balance of the Term is
the following:
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MONTHLY
PERIOD BASE RENT
(01/01/01) - (12/31/01) $104,002.00
(01/01/02) - (12/31/02) $107,122.00
(01/01/03) - (12/31/03) $110,335.00
(01/01/04) - (12/31/04) $113,645.00
(01/01/05) - (12/31/05) $117,055.00
(01/01/06) - (12/31/06) $120,566.00
(01/01/07) - (12/31/07) $124,183.00
(01/01/08) - (12/31/08) $127,909.00
(01/01/09) - (12/31/09) $131,746.00
(01/01/10) - (08/31/10) $135,698.00
All such Base Rent shall be payable by
Tenant in accordance with the terms of the
Lease.
4 TENANT'S PROPORTIONATE SHARE OF OPERATING
EXPENSES. For the period commencing on the
Second Expansion Premises Term Commencement
Date and ending on the Scheduled Term
Expiration Date, Tenant shall pay for
Tenant's Proportionate Share of Operating
Expenses in accordance with the terms of the
Lease."
C. Deleted Provisions. Section 3, "Rent", of First Amendment of
the Lease and Section 1, "Rent", of Second Amendment to Lease
are hereby deleted in their entirety and are of no further
force and effect.
II. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. Landlord
and Tenant acknowledge and agree that this Amendment is
intended as a clarification of the Base Rent payable under the
Lease only and does not in any way modify Tenant's rent
obligations under the Lease. There have been no additional
oral or written representations or agreements. Under no
circumstances shall Tenant be entitled 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 or the
Lease.
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.
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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.
[SIGNATURES ARE ON FOLLOWING PAGE]
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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
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Name: Antonio Canova
Title: CFO
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