EXHIBIT - 10.62
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (this "Third Amendment") is made this 30th day of
November, 2000, by and between Spieker Properties, L.P., a California limited
partnership ("Landlord"), and Brocade Communications Systems, Inc., a Delaware
corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into a Lease dated December 17,
1999 (the "Original Lease"), as modified by that certain First Amendment to
Lease dated as of February 16, 2000 (the "First Amendment"), as modified by that
certain Second Amendment to Lease dated as of August 11, 2000 (the "Second
Amendment"), for those certain premises located at 1745 Technology Drive
(approximately 210,577 rentable square feet) and 1741 Technology Drive
(approximately 60,710 rentable square feet), San Jose, California (the "Original
Premises"), each as more fully described in the Lease. Capitalized terms used
but not otherwise defined herein shall have the meanings given them in the
Lease; and
WHEREAS, Landlord and Tenant desire to modify the Lease as provided
herein.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby mutually agree as follows:
1. The following shall be added to and made a part of the Lease
as a new Paragraph 39. H: Roof Rights.
1. During the Term, Tenant shall have the nonexclusive right to install on
the roof of the Building, one (1) satellite dish(s) which is no more
than eighteen (18) inches in diameter and does exceed thirty (30)
pounds installed, which shall be enclosed by a screen and the
nonexclusive right to run connecting lines or cables therein from the
Premises (such satellite dish/antennae and such connecting lines and
related equipment herein referred to collectively as the "Equipment").
Tenant shall not penetrate the roof in connection with any installation
or reinstallation of the Equipment without Landlord's prior written
consent, which may be withheld in Landlord's sole discretion. The plans
and specifications for all the Equipment shall be delivered by Tenant
to Landlord for Landlord's review and approval. Such plans and
specifications, including, without limitation, the location of the
Equipment, shall be approved by Landlord in writing prior to any
installation. In no event shall the Equipment or any portion thereof be
visible from street level. Prior to the commencement of any
installation or other work performed on or about the Building, Landlord
shall approve all contractors and subcontractors which shall perform
such work. Tenant shall be responsible for any damage to the roof,
conduit systems or other portions of the Building or Building systems
as a result of Tenant's installation, maintenance and/or removal of the
Equipment.
2. Tenant shall pay to Landlord, as "additional rent", Seven Hundred Fifty
Dollars ($750.00) per month for the use of the roof and roof space to
accommodate Tenant's Equipment, which shall be due and payable on the
first day of each month with each Installment of Base Rent hereunder.
3. Tenant, at Tenant's sole cost and expense, shall comply with all
Regulations regarding the installation, construction, operation,
maintenance and removal of the Equipment and shall be solely
responsible for obtaining and maintaining in force all permits,
licenses and approvals necessary for such operations.
4. Tenant shall be responsible for and promptly shall pay all taxes,
assessments; charges, fees and other governmental impositions levied or
assessed on the Equipment or based on the operation thereof.
5. Landlord may require Tenant, at Tenant's sole cost and expense, to
relocate the Equipment during the Term to a location approved by
Tenant, which approval shall not be unreasonably withheld, conditioned
or delayed. Tenant shall not change the location of, or alter or
install additional Equipment or paint any of the other Equipment
without Landlord's prior written consent.
6. Operation of the Equipment shall not interfere in any manner with
equipment systems or utility systems of other tenants of the Project,
including without limitation, telephones, dictation equipment,
lighting, heat and air conditioning, computers, electrical systems and
elevators. If operation of the Equipment causes such interference, as
determined by Landlord in Landlord's reasonable discretion, Tenant
immediately shall suspend operation of the Equipment until Tenant
eliminates such interference.
7. Tenant shall maintain the Equipment in good condition and repair, at
Tenant's sole cost and expense. Landlord may from time to time require
that Tenant repaint the satellite dishes at Tenant's expense to keep
the same in an attractive condition. In the event that Tenant fails to
repair and maintain the Equipment in accordance with this Lease,
Landlord may, but shall not be obligated to make any such repairs or
perform any maintenance to the Equipment and Tenant shall reimburse
Landlord upon demand for all costs and expenses incurred by Landlord in
connection therewith, plus a reasonable administrative fee.
8. Tenant may access the roof for repair and maintenance of the Equipment,
only during normal business hours, on not less than 24 hours prior
written notice to Landlord. Tenant shall designate in writing to
Landlord all persons whom Tenant authorizes to have access to the roof
for such purposes. Upon such designation and prior identification to
Landlords' building security personnel, such authorized persons shall
be granted access to the roof by Landlord's building engineer. Tenant
shall be responsible for all costs and expenses incurred by Landlord in
connection with Tenant's access to the roof pursuant to this Paragraph.
Landlord or Landlord's agent may accompany Tenant during such access.
9. Tenant shall indemnify, defend, protect and hold harmless Landlord from
and against any and all claims related to the Equipment or operation of
the same as if the Equipment were located wholly within the Premises.
Tenant shall provide evidence satisfactory to Landlord that Tenant's
property and liability insurance policies required under this Lease
include coverage for the Equipment and any claim, loss, damage, or
liability relating to the Equipment.
10. Landlord shall have no responsibility or liability whatsoever relating
to (i) maintenance or repair of the Equipment, (ii) damage to the
Equipment; (iii) damage to persons or property relating to the
Equipment or the operation thereof; or (iv) interference with use of
the Equipment arising out of utility interruption or any other cause,
except for injury to persons or damage to property caused solely by the
active negligence or intentional misconduct of Landlord, its agents or
any other parties related to Landlord. In no event shall Landlord be
responsible for consequential damages. Upon installation of the
Equipment, Tenant shall accept the area where the Equipment is located
in its "as is" condition. Tenant acknowledges that the roof location of
the Equipment is suitable for Tenant's needs, and acknowledges that
Landlord shall have no obligation whatsoever to improve, maintain or
repair the area in which the Equipment will be installed.
11. Tenant shall use the Equipment solely for Tenant's operations
associated with the Permitted Use and within Tenant's Premises and
shall not use or allow use of the Equipment, for consideration or
otherwise, for the benefit of other tenants in the Building or any
other person or entity.
12. Tenant shall, at Tenant's sole cost and expense, remove such portions
of the Equipment as Landlord may designate upon the expiration or
earlier termination of this Lease, and restore the affected areas to
their condition prior to installation of the Equipment. If Tenant fails
to so remove the Equipment, Landlord reserves the right to do
so, and the expense of the same shall be immediately due and payable
from Tenant to Landlord as additional rent, together with interest and
late charges as provided in this Lease, plus a reasonable
administrative fee.
Except as expressly modified above, all terms and conditions of the
Lease remain in full force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have entered into this Second
Amendment as of the date first written above.
LANDLORD: TENANT:
Spieker Properties, L.P., Brocade Communications Systems, Inc.
A California limited partnership a Delaware corporation
By: Spieker Properties, Inc., By : /s/ Michael J. Byrd
a Maryland corporation --------------------------------------
its General Partner Michael J. Byrd
Its : Vice President, Finance
By: /s/ John W. Peterson Chief Financial Officer
----------------------------
John W. Peterson By : /s/ Victor Rinkle
Its: Senior Vice President --------------------------------------
Victor Rinkle
Its: Vice President, Operations