EXHIBIT - 10.70
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Ellman Burke Hoffman &Johnson
One Ecker, Suite 200
San Francisco, CA 94105
Phone: (415)777-2727
Attention: Jodi B. Fedor
________________________________________________________________________________
(Space above for Recorder's Use)
RIGHT OF FIRST OFFER AGREEMENT
THIS RIGHT OF FIRST OFFER AGREEMENT (hereinafter "AGREEMENT") is made
as of the 18th day of November, 2003, by and between EOP-SKYPORT I, L.L.C., a
Delaware limited liability company (together with its successors and assigns,
"EOP"), and BROCADE COMMUNICATIONS SYSTEMS SKYPORT LLC, a Delaware limited
liability company (together with its successors and assigns, "BROCADE"), with
reference to the following:
RECITALS
A. EOP and Brocade are parties to that certain Real Estate Sale
and Lease Termination Agreement dated as of the date hereof (the "PURCHASE
AGREEMENT").
B. Pursuant to the Purchase Agreement, concurrently herewith, EOP
is selling to Brocade, and Brocade is purchasing from EOP, certain real property
located in the City of San Jose, County of Santa Clara, State of California,
more fully described on EXHIBIT C attached hereto (together with any and all
rights, privileges and easements appurtenant benefiting such real property, and
together with any improvements thereon, the "PARCEL").
C. EOP has agreed to sell the Parcel to Brocade on the condition
that Brocade comply with the covenants, conditions, restrictions and limitations
more particularly set forth in this Agreement.
AGREEMENT
NOW THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency
of which is hereby acknowledged, EOP and Brocade agree as follows:
ARTICLE I
Acknowledgements
Brocade acknowledges that EOP is engaged in the development of a master
project, of which the Parcel is a part and that EOP owns property adjacent to
the Parcel.
ARTICLE II
Right of First Offer
Section 2.1 Grant of Right. Brocade hereby grants to EOP a right of
first offer (the "Right of First Offer"), which shall be exercisable by EOP in
the manner and on the terms and conditions set forth in this Article II. Brocade
shall not undertake a "Transfer" without first allowing EOP the opportunity to
exercise its Right of First Offer in accordance with and on the terms and
conditions of this Article II (unless such Transfer is an "Excluded Transfer",
in which event EOP shall not have the opportunity to exercise its Right of First
Offer as to such Transfer). As used in this instrument, the term "Transfer"
shall be defined to mean any transfer, sale, or other conveyance, whether by
agreement for sale or in any other manner of the Parcel or any portion thereof
or interest therein including but not limited to (i) any lease, and (ii) any
transfer, sale or conveyance of any direct or indirect membership interest in
Brocade; and "Excluded Transfer" shall be defined to mean (i) any Transfer of an
interest in the Parcel to a Related Party (hereafter defined), (ii) any Transfer
of a direct or indirect interest in Brocade resulting in no persons or entities
other than any Brocade Related Entities or shareholders of Brocade
Communications Systems, Inc. having a direct or indirect ownership interest in
Brocade, (iii) any deed of trusts, mortgage, assignment or other transfer merely
as security for the performance of any obligation, and any foreclosure or
deed-in-lieu of foreclosure pursuant to any such instrument; (iv) any merger,
consolidation or similar transaction relating to Brocade Communications Systems,
Inc., and any transfer of ownership interests in Brocade Communications Systems,
Inc.; or (v) a lease which is not a lease of the entire Parcel for a period of
fifteen years or more.
Section 2.2 Term. The Right of First Offer shall survive any Excluded
Transfer, and shall continue to apply until the earlier of (a) such time, if at
all, as EOP acquires the entire Parcel; (b) EOP's failure, after executing and
returning a Transfer Offer (hereafter defined) to Brocade, to timely close an
acquisition pursuant to Section 2.3 below for any reason other than a default by
Brocade or Brocade's failure to deliver title in the condition required by the
Transfer Offer; (c) Brocade's Transfer (other than an Excluded Transfer) of its
entire interest in the Parcel in full compliance with this Agreement (d) a
Transfer of the Parcel by foreclosure or deed-in-lieu of foreclosure pursuant to
a security instrument described in Section 2.4.4 below or (e) such time, if at
all, as (i) EOP-Skyport I, L.L.C. and/or its Related Entities no longer owns any
of the property described on Exhibit D, and (ii) EOP has not theretofore
assigned its interest in this Agreement to a Permitted Assignee. For purposes
hereof, the term "Related Entity" means (a) any person or entity directly or
indirectly controlling, controlled by or under common control with Brocade or
EOP, as applicable; (b) any director, officer, partner, member or trustee of
Brocade or EOP, as applicable, or a Related Entity; or (c) any person or entity
directly, indirectly, or beneficially owning or controlling, directly or
indirectly, 25% or more of any class of voting securities of, or otherwise
having a 25% or more beneficial ownership interest in Brocade or EOP, as
applicable. As used herein, the terms "control", "controlled" or "controlling"
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of Brocade or EOP, as applicable,
or a Related Entity, whether through the ownership of voting securities or
equity interests, by contract or otherwise. Brocade shall give EOP at least 10
days prior written notice of Excluded Transfer (other than a lease of less than
the entire Parcel; a merger, consolidation or similar transaction with respect
to, or a transfer of ownership interests in, Brocade Communications Systems,
Inc.; or a deed of
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trust, mortgage, assignment or other transfer merely as security for the
performance of any obligation or a foreclosure or deed-in-lieu under any such
instrument), which notice shall be accompanied by such documentation and
information as may be reasonably necessary for EOP to confirm that the Transfer
is an Excluded Transfer. "Permitted Assignee is defined in Section 3.2 below.
Section 2.3 Exercise.
2.3.1 Brocade shall not Transfer the Parcel or any portion
thereof except pursuant to an Excluded Transfer unless Brocade first delivers to
EOP a written offer (a "Transfer Offer") for the sale of the Parcel or an
interest therein (the interest described in the Transfer Offer, the "Offered
Interest") and the terms upon which Brocade is willing to sell the Offered
Interest to EOP. The Transfer Offer shall (i) identify the cash purchase price
or, if a lease of the entire Parcel, the rental terms (the "Offer Price")
Brocade is willing to accept for the Offered Interest; (ii) be nonassignable
except to a Related Entity of EOP; (iii) provide for all cash consideration;
(iv) provide for acceptance by EOP no later than ten (10) business days from the
date the Transfer Offer was delivered to EOP; (v) may at Brocade's option
require a deposit of no more than 5% of the Offer Price within five (5) business
days after acceptance of the Transfer Offer by EOP (which funds shall on the
request of EOP be placed in an escrow until the closing of the purchase); (vi)
specify the terms and conditions of the sale that will vary from the Purchase
Agreement as provided in Section 2.4.2 and (vii) specify whether Brocade or a
Related Entity will continue to occupy the Parcel after such Transfer pursuant
to a sale-leaseback or otherwise and the economic and material non-economic
terms of such occupancy ("Lease Terms"). Brocade may deliver a Transfer Offer to
EOP at any time, in Brocade's sole discretion.
2.3.2 EOP shall have the right, to be exercised within ten
(10) business days following receipt of a Transfer Offer, to elect to purchase
(i) the Offered Interest, or (ii) Brocade's entire interest in the Parcel (the
"Entire Interest") (if the Offered Interest is not the Entire Interest) on the
terms and conditions specified in the Transfer Offer (with an equitable
adjustment of the Offer Price if the Offered Interest is not the Entire Interest
and EOP elects to purchase the Entire Interest) by executing and returning the
Transfer Offer to Brocade and indicating the interest to be acquired, which
shall constitute EOP's acceptance thereof. Failure of EOP to timely execute and
return to Brocade a Transfer Offer will be deemed a waiver of the right to
acquire the Offered Interest, and Section 2.3.3 shall apply to the Transfer. In
the event EOP timely executes and returns to Brocade the Transfer Offer
accepting such offer, closing on the applicable transfer shall take place on the
date specified in the Transfer Offer or, if none, on a date agreed to by Brocade
and EOP, which date shall be within 60 days following acceptance of the
applicable offer. Notwithstanding the foregoing, if the Offered Interest is an
interest in the Parcel which is less than the Entire Interest, EOP may not elect
to purchase the Entire Interest if it has approved of any subdivision of the
Parcel pursuant to Section 5.13 of that certain Skyport Plaza (Adjusted Parcel
II) Declaration of Common Easements, Covenants, Conditions and Restrictions
between EOP and Brocade and the Offered Interest consists of one of the
resulting parcels.
2.3.3 In the event EOP fails timely to execute and return a
Transfer Offer to Brocade, Brocade shall be entitled, for a period of 270 days
following expiration of the ten (10) business day period after delivery of the
Transfer Offer to EOP (as provided in paragraph 2.3.2
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above), to market the Offered Interest. In the event Brocade, (i) within such
270 day period, enters into a contract to Transfer the Offered Interest to a
third party in the manner of Transfer described in the Transfer Offer, for an
amount (the "Sale Price") in excess of ninety-five percent (95%) of the Offer
Price; on other economic terms and conditions that are not materially more
favorable to the purchaser than were the terms of the Transfer Offer (provided,
however, that customary adjustments at closing shall not constitute economic
terms more favorable to such purchaser within the meaning of this paragraph) and
upon such other non-economic terms as are acceptable to Brocade (provided, if
the Transfer Officer contained Lease Terms, the total economic benefits to the
landlord under the applicable lease, taking into account, among other things,
the rent and term of such lease, must be substantially identical to those
contained in the Transfer Offer), and (ii) shall close on such Transfer within
365 days following Brocade's delivery of the Transfer Offer to EOP, then Brocade
shall be entitled to Transfer the Offered Interest in accordance with such
contract. In the event the Sale Price does not consist entirely of cash payable
in full at closing, non-cash consideration will be appropriately valued and
appropriate discounts will be taken for the time-value of money, marketability
of securities and other conditions, provided that Brocade may structure the
transaction to take advantage of tax planning by providing for receipt of all or
a portion of the purchase price in a tax year following the year of closing, and
all cash to be received by Brocade within one year after close of escrow shall
be deemed to be cash received at the close of escrow so longer as the same bears
a rate of interest that is not less than the prime rate established by Bank of
America from time to time.
2.3.4 Concurrently with the execution hereof, EOP shall
execute and deliver a release in the form of Exhibit A (the "Release") which
shall be held and delivered in accordance with the escrow agreement attached as
Exhibit B. EOP shall not be required to direct the escrowee to deliver the
Release to Brocade unless EOP is provided with reasonably satisfactory evidence
that the term of this Agreement has expired as described in Section 2.2,
provided that a fully executed closing statement from the escrow company
handling the closing of a third party Transfer reflecting the consideration paid
or to be paid for such sale shall be deemed satisfactory evidence of a Transfer
described in Section 2.2 (c) for purposes of this sentence.
2.3.5 In the event a Transfer is not consummated within the
time periods and on the other conditions as provided for in Section 2.3.3, then
Brocade shall deliver a subsequent Transfer Offer to EOP prior to any subsequent
Transfer, in accordance with the terms and conditions of this Article II.
Section 2.4 Closing.
2.4.1 Time and Place. The closing of any Transfer by
Brocade to EOP (the "Closing") shall be held in San Jose, California on the date
set forth in Section 2.3.
2.4.2 Terms of Sale. The Transfer shall occur under terms
substantially similar to those contained in the Purchase Agreement as modified
by the Transfer Offer except (i) in the event of any inconsistency between such
terms and any provisions hereof, the provisions hereof shall control (e.g.
consideration), (ii) such terms shall be modified to the extent necessary due to
changes in law enacted after the date hereof, provided the same does not
materially or adversely affect either party, and (iii) such terms shall be
modified to the extent necessary due to changes
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in fact occurring after the date hereof, provided the same does not materially
or adversely affect either party.
2.4.3 Debt. In connection with the Closing, in the event at
the time of the Closing there exist any liens against the Parcel, Brocade shall
at its sole cost and expense cause the liens to be released, except as otherwise
set forth in a Transfer Offer.
2.4.4 Subordination. Without the necessity of any
additional document being executed by EOP for the purpose of effecting a
subordination, EOP's rights under this Agreement shall be subject and
subordinate at all times to the lien of the most senior deed of trust or
mortgage which may now exist or hereafter be executed in any amount.
Notwithstanding the foregoing, Brocade shall have the right to subordinate or
cause to be subordinated any such mortgage or deed of trust to EOP's rights
pursuant to this Agreement. If any such mortgage or deed of trust is foreclosed
or a conveyance in lieu of foreclosure is made for any reason, EOP's rights
under this Agreement shall not be binding upon the successor-owner of the
Parcel.
ARTICLE III
General Provisions
Section 3.1 Entire Agreement. All understandings and agreements
heretofore had between EOP and Brocade with respect to the right of first offer
desired herein are merged in this Agreement.
Section 3.2 Assignment. EOP may not assign or otherwise transfer
its rights under this Agreement except pursuant to an assignment of all of its
rights hereunder to a successor in interest to EOP's ownership interests in the
property described on Exhibit D, or in one of the entire office buildings
located on such property (a "Permitted Assignee"), it being agreed that the
rights hereunder shall benefit any such Permitted Assignee as if such Permitted
Assignee were "EOP" hereunder, provided such assignment is in writing and
recorded in the public records and provided further that only one party may have
the rights of EOP hereunder at any given time.
Section 3.3 Modifications. This Agreement shall not be modified
or amended except in a written document signed by EOP and Brocade.
Section 3.4 Governing Law. This Agreement shall be governed and
interpreted in accordance with the laws of the state in which the Parcel is
located.
Section 3.5 Notices. All notices, requests, demands or other
communications required or permitted under this Agreement shall be in writing
and delivered personally, by facsimile transmission with confirmed receipt, or
by overnight courier (such as Federal Express), addressed as follows below. All
notices given in accordance with the terms hereof shall be deemed given when
received or upon refusal of delivery. Either party hereto may change the address
for receiving notices, requests, demands or other communication by notice sent
in accordance with the terms of this Section 3.5.
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If to EOP:
c/o Equity Office Properties Trust
Two North Riverside Plaza, Suite 2100
Chicago, Illinois 60606
Attention: Ross Satterwhite
Telephone: 312/466-3522
Facsimile: 312/559-5095
With a copy to:
c/o Equity Office Properties Trust
Two North Riverside Plaza, Suite 2100
Chicago, Illinois 60606
Attention: Jeff Arnold
Telephone: 312/466-3225
Facsimile: 312/559-5209
and
Neal, Gerber & Eisenberg, LLP
2 North LaSalle Street, Suite 2100
Chicago, Illinois 60602
Attention: Douglas J. Lubelchek, Esq.
Telephone: 312/269-5255
Facsimile: 312/269-1747
If to Brocade:
Real Estate & Facilities
Brocade Communications, Inc.
1745 Technology Service
San Jose, California 95110
Attention: Lease Administrator
Telephone: 408/333-8000
Facsimile: 408/333-8101
With a copy to:
Ellman, Burke, Hoffman & Johnson
One Ecker Building, Suite 200
San Francisco, California 94105
Attention: Jodi B. Fedor
Telephone: 415/777-2727
Facsimile: 415/496-7587
Section 3.6 Trial by Jury. In any lawsuit or other proceeding
initiated under or with respect to this Agreement, each party waives any right
it may have to trial by jury.
Section 3.7 Counterparts. This Agreement may be executed in any
number of identical 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.
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Section 3.8 Construction. This Agreement shall not be construed
more strictly against EOP merely by virtue of the fact that the same has been
prepared by EOP or its counsel, it being recognized both of the parties hereto
have contributed substantially and materially to the preparation of this
Agreement.
Section 3.9 Attorneys' Fees. In the event of litigation between
the parties with respect to this Agreement or the transaction contemplated
hereby, the prevailing party therein shall be entitled to recover from the
losing party all of its costs of enforcement and litigation, including, but not
limited to, its reasonable attorneys' and paralegal fees, witness fees, court
reporters' fees and other costs of suit.
Section 3.10 Estoppel Certificate. Brocade may require that EOP
confirm by estoppel certificate or like document that EOP's rights under this
Agreement have terminated or expired or do not apply to a specific transaction
which Brocade is considering or specify the reasons why EOP believes that EOP's
rights hereunder apply to said transaction. EOP may require that Brocade confirm
by estoppel certificate or like document that EOP's rights under this Agreement
have not terminated, and/or, will continue in connection with a transaction
involving a Permitted Assignee.
Section 3.11 Brokers. Neither party has had any contact or
dealings regarding the subject matter of this Agreement through any licensed
real estate broker or other person who can claim a right to a commission or
finder's fee as a procuring cause of any sale resulting from this Agreement. If
any broker or finder perfects a claim for a commission or finder's fee based
upon any such contract, dealings or communication, the party through whom the
broker or finder makes his claim shall be responsible for said commission or fee
and all costs and expenses (including reasonable attorneys' fees) incurred by
the other party in defending against the same.
Section 3.12 Confidentiality. EOP acknowledges that if EOP were to
disclose the Transfer Offer(s), such disclosure could interfere with Brocade's
ability to sell the Parcel. Accordingly, EOP agrees to use its best efforts to
keep the terms and conditions of any Transfer Offer made to EOP pursuant to this
Agreement and related discussions absolutely confidential and such obligation of
EOP shall extend to its partners, officers, directors, shareholders, employees,
agents, consultants and representatives. Notwithstanding anything herein to the
contrary, the confidentiality obligations under this Section shall not apply to
disclosures required due to disclosure requirements applicable to Equity Office
Properties Trust (the "Trust") and its affiliates, which are indirect owners of
EOP, due to the Trust's status as a publicly-held company listed on the New York
Stock Exchange or any other securities exchange (an "Exchange") (including, but
not limited to, disclosure required by the rules of, or any listing agreement
with, an Exchange) and to Brocade due to Brocade's member's status as a
publicly-held company listed on the Nasdaq National Market or another Exchange
(including, but not limited to, disclosure required by the rules of, or any
listing agreement with, Nasdaq or another Exchange).
Section 3.13 Time of the Essence. Time is of the essence of this
Agreement and of all terms and conditions hereof.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the day and year first above written.
EOP:
EOP-SKYPORT I, L.L.C., a Delaware limited liability company
By: EOP OPERATING LIMITED PARTNERSHIP, a Delaware
limited partnership, its sole member
By: EQUITY OFFICE PROPERTIES TRUST, a
Maryland real estate investment trust, its general
partner
By: /s/ Jeffrey S. Arnold
---------------------------------------------
Name: Jeffrey S. Arnold
Title: Vice President - Legal
BROCADE:
BROCADE COMMUNICATIONS SYSTEMS SKYPORT LLC, a
Delaware limited liability company
By: Brocade Communications Systems, Inc., a Delaware corporation
Its Sole Member
By: /s/ Antonio Canova
----------------------------------------------------------
Name: Antonio Canova
Title: CFO
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EXHIBIT A
RELEASE
Preparer Information: Douglas J. Lubelchek, Neal, Geber & Eisenberg, LLP, Two
North LaSalle Street, Suite 2100, Chicago,
Illinois 60602 Phone: (312) 269-5255
________________________________________________________________________________
SPACE ABOVE THIS LINE
FOR RECORDER
RELEASE
The undersigned, does hereby acknowledge that a certain Right of First
Offer dated ______, 2003 and recorded in the records of the office of the
Recorder of the County of Santa Clara, State of California, Book ____, page ____
on the ____ day of November, 2003 is released in full.
Dated this ____ day of ____________, 20___.
EOP-SKYPORT I, L.L.C., a Delaware limited liability company
By: EOP OPERATING LIMITED PARTNERSHIP, a Delaware
limited partnership, its sole member
By: EQUITY OFFICE PROPERTIES TRUST, a
Maryland real estate investment trust, its general
partner
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
STATE OF ________________, ______________ COUNTY, Section:
The foregoing instrument was acknowledged before me this _____ day of
_____, 2003 by ________________ as _______________ of Equity Office Properties
Trust, a Maryland real estate investment trust, general partner of EOP Operating
Limited Partnership, a Delaware limited partnership, sole member of EOP-Skyport
I, L.L.C, a Delaware limited liability company.
Witness my hand and official seal.
My commission expires:_________________________________________________
______________________________________
Notary Public
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EXHIBIT B
ESCROW
ESCROW AGREEMENT
[1600 Technology Drive, San Jose, California]
ESCROW INSTRUCTIONS
[1600 TECHNOLOGY DRIVE, SAN JOSE, CALIFORNIA]
CHICAGO TITLE AND TRUST COMPANY
Refer To:
Phone No.:
Fax No.:
ESCROW INSTRUCTIONS
ESCROW TRUST NO.:___________________ DATE:__________________
To: Chicago Title and Trust Company, Escrow Trustee
1. A fully executed Release of Right of First Offer is hereby deposited
by EOP-Skyport I, L.L.C.
Delivery of Deposits:
The above-referenced escrow trust deposit ("DEPOSIT") is deposited with the
escrow trustee to be delivered by it only upon the receipt of a joint order of
the undersigned or their respective legal representatives of assigns.
In no case shall the above-mentioned deposits be surrendered except as described
above or in obedience to the court order described below.
Escrow trust fee will be zero.
Compliance With Court Order:
The undersigned authorize and direct the escrow trustee to disregard any and all
notices, warnings or demands given or made by the undersigned (other than
jointly) or by any other person. The said undersigned also hereby authorize and
direct the escrow trustee to accept, comply with, and obey any and all writs,
orders, judgments or decrees entered or issued by any court with or without
jurisdiction; and in case the said escrow trustee obeys or complies with any
such writ, order, judgment or decree of any court, it shall not be liable to any
of the parties hereto or any other person, by reason of such compliance,
notwithstanding any such writ, order, judgment or decree be entered without
jurisdiction or be subsequently reversed, modified, annulled, set aside or
vacated. In case the escrow trustee is made a party defendant to any suit or
proceedings regarding this escrow trust, the undersigned, for themselves, their
heirs, personal representatives, successors, and assigns, jointly and severally,
agree to pay to said escrow trustee, upon written demand, all costs, attorney's
fees, and expenses incurred with respect thereto. The escrow trustee shall have
a lien on the deposit(s) herein for any and all such costs, fees and expenses.
If said costs, fees and expenses are not paid, then the escrow trustee shall
have the right to reimburse itself out of the said deposit(s).
Execution:
These escrow trust instructions are governed by and are to be construed under
the laws of the State of California. The escrow trust instructions, amendments
or supplemental instructions hereto, may be executed in counterparts, each of
which shall be deemed an original and all such counterparts together shall
constitute one and the same instrument.
SELLER: EOP-Skyport I, L.L.C., a Delaware limited liability
company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland real
estate investment trust, its general partner
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
PURCHASER: BROCADE:
BROCADE COMMUNICATIONS SYSTEMS SKYPORT LLC, a
Delaware limited liability company
By: Brocade Communications Systems, Inc.,
a Delaware corporation
Its Sole Member
By:_______________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Accepted: Chicago Title and Trust Company, as Escrow Trustee
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EXHIBIT C
LEGAL DESCRIPTION OF PROPERTY
BROCADE PARCEL
All that certain real property situate in the City of San Jose, County of Santa
Clara, State of California, described as follows:
Parcel B, as shown on the Parcel Map filed for record in the office of the
Recorder of the County of Santa Clara, State of California on Nov 18, 03, in
Book 766 of Maps, page(s) 14-18.
EXHIBIT D
LEGAL DESCRIPTION OF REMAINDER PROPERTY
EOP PARCEL
All that certain real property situate in the City of San Jose, County of Santa
Clara, State of California, described as follows:
Parcel A, as shown on the Parcel Map filed for record in the office of the
Recorder of the County of Santa Clara, State of California on Nov 18, 2003, in
Book 766 of Maps, page(s) 14-18.