EXHIBIT - 10.65
SIXTH AMENDMENT
THIS SIXTH AMENDMENT (the "AMENDMENT") is made and entered into as of
the 18th day of November, 2003 ("EFFECTIVE DATE"), 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 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"), November ___ 2003 (the "FOURTH Amendment") and November
___, 2003 (the "FIFTH AMENDMENT") (which shall be collectively referred
to herein as 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 approximately 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. EOP - Skyport I, L.L.C., a Delaware limited liability company (as
successor in interest to MV Golden State San Jose, LLC, a Delaware
limited liability company), an affiliate of Landlord ("SKYPORT
LANDLORD"), and Tenant are also parties to that certain lease dated
December 1, 2000 (as subsequently amended, the "SKYPORT LEASE").
Pursuant to the Skyport Lease, Tenant currently leases approximately
193,977 rentable square feet in the building commonly known as Skyport
Tower III, and located at 1600 Technology Drive (the "SKYPORT
PROPERTY").
C. Skyport Landlord and Tenant have entered into that certain Real Estate
Sale and Lease Termination Agreement [1600 Technology Drive, San Jose,
California] dated as of November 18, 2003 ("SKYPORT SALE AGREEMENT"),
pursuant to which the Skyport Landlord has, concurrent with the date of
this Amendment, sold the Skyport Property to Brocade Communications
Systems Skyport LLC, a Delaware limited liability company
("Purchaser"), as assignee of certain of Tenant's rights under the
Skyport Sale Agreement, on the terms and conditions of the Skyport Sale
Agreement, which terms and conditions include the execution of this
Amendment concurrent with the close of escrow on the sale of the
Skyport Property.
D. 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 that,
from the Effective Date and until the
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earlier of (a) that date that is (5) five years after the Effective Date or (b)
that date, if any, upon which Tenant records a grant deed in favor of Skyport
Landlord (or Skyport Landlord's successor in interest) for the Skyport Property,
pursuant to Skyport Landlord's exercise of that certain Right of First Offer
Agreement entered into by and between Purchaser and Skyport Landlord concurrent
with the date of this Amendment , or (c) the date upon which Tenant pays a
Transfer Fee (as defined below) to Landlord under this Amendment (the "AMENDMENT
TERM"), the Lease shall be amended to provide as follows:
1. LIMITATION ON DISCRETIONARY TRANSFERS AFFECTING THE PREMISES
LOCATED IN BUILDING VI. Notwithstanding anything to the
contrary contained in Section 21 of the Original Lease, the
following shall apply:
a) Tenant acknowledges and agrees that Tenant may not,
under any circumstance, sublease, license, assign or
pledge to a third party (each a "DISCRETIONARY
TRANSFER" and, collectively, the "DISCRETIONARY
TRANSFERS"), space in Building VI that exceeds a
maximum of twenty six thousand two hundred sixty
eight (26,268) usable square feet in the aggregate
across all of the Building VI over any period of time
(the "MAXIMUM TRANSFER SPACE"). Tenant shall provide
Landlord with Tenant's determination of the amount of
usable square footage in any space subject to a
Discretionary Transfer, which determination shall be
subject to Landlord's approval, including approval of
the architect and methods of measurement, in its
reasonable discretion. Any improvements required to
be made to the Premises in connection with a
Discretionary Transfer shall be Alterations subject
to Landlord's prior written approval to the extent
required by, and on the terms and conditions of, the
Lease and any reasonable requirement imposed by
Landlord related to the conversion of a single tenant
space to multi tenant use. All the approval and
consent provisions of Section 21 of the Lease shall
continue to apply with regard to any Discretionary
Transfer, subject to the additional limitation of the
Maximum Transfer Space and provided that Landlord may
withhold its consent to any Discretionary Transfer in
its sole and absolute discretion, if such
Discretionary Transfer will cause Tenant to exceed,
in the aggregate, the Maximum Transfer Space and
Tenant has not paid, or agreed to pay upon the
effective date of such Discretionary Transfer, the
Transfer Fee. Regardless of whether or not Landlord
has given its consent to or implicitly or expressly
approves a Discretionary Transfer, the square footage
of space affected by such a Discretionary Transfer
shall count against the Maximum Transfer Space and
could result in payment of the Transfer Fee if the
total space affected by Discretionary Transfers at
any particular point in time during the Amendment
Term exceeds the Maximum Transfer Space.
b) Tenant further acknowledges and agrees that, as part
of the consent process for any Discretionary
Transfer, Landlord may continue to exercise the
termination right set forth in Section 21.A.(1)(i) of
the Original Lease, and, if Landlord exercises such
termination right (a "DISCRETIONARY TERMINATION"),
any space so terminated by Landlord shall not
constitute a Discretionary Transfer and shall not be
counted as
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part of the Maximum Transfer Space.
c) Landlord shall calculate and maintain a running tally
of the square footage of the Premises in Building VI
affected by Discretionary Transfers and shall, within
five (5) business days after Landlord's receipt of
Tenant's written request for same, provide a written
statement to Tenant of the total square footage
applied, as of the date of the statement, to the
Maximum Transfer Space. Landlord and Tenant
acknowledge and agree that space shall only be
included in the Maximum Transfer Space calculation
for the period of time that such space is subject to
a Discretionary Transfer.
d) Landlord and Tenant agree that it is their mutual
intent that all space subject to Discretionary
Transfers, regardless of when such Discretionary
Transfer has occurred or occurs prior to the end of
the Amendment Term (including, without limitation,
Discretionary Transfers occurring prior to the
Effective Date or affecting space in Building VI that
is or was a part of the Original Premises), shall be
included in the calculation of space allocated to the
Maximum Transfer Space. Permitted Transfers shall
continue to be permitted without Landlord's consent
to the extent provided in the Lease, and shall not be
included in the calculation of space allocated to the
Maximum Transfer Space. Tenant hereby represents and
warrants to Landlord that, as of the Effective Date,
none of the Premises are or have been a part of a
Discretionary Transfer, such that Tenant has the
benefit of the full Maximum Transfer Space to use in
Discretionary Transfers going forward.
e) Landlord and Tenant acknowledge that Landlord is in
the business of leasing office space in the same
market area of the Skyport Property and the Skyport
Landlord would not enter into the Skyport Sale
Agreement if such sale would result in increased
vacancy at Building VI or a diminution of the benefit
of its bargain under the Lease without receipt by
Landlord of the Transfer Fee. As such, Landlord and
Tenant agree that if Tenant exceeds the Maximum
Transfer Space at any time during the term of the
Lease, then Tenant shall pay Landlord, within ten
(10) days of Landlord's delivery to Tenant of written
notice of the occurrence of such event, a one-time
fee equal to One Million Nine Hundred Thousand
Dollars ($1,900,000), which shall be payable by wire
transfer of cash or a cashier's check as requested by
Landlord (the "TRANSFER FEE"). Upon payment (if any)
of the Transfer Fee, this Amendment shall terminate
and be of no further force and effect. Any failure of
Brocade to pay the Transfer Fee as provided herein,
without further notice or demand by Landlord, shall
constitute a breach of this Agreement and shall be
deemed an event of default under the Lease on the
part of Tenant.
f) At the earlier of the expiration of the Amendment
Term and the payment of the Transfer Fee, this
Amendment shall be of no further force or effect and
the provisions of Section 21 as set forth in the
Lease shall be deemed reinstated without modification
or effect by this Amendment for the remaining Term of
the Lease.
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2. 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
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counterparts, any 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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