EXHIBIT 10.20
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (the "Amendment") is made and
entered into as of the 8th day of May, 2002 by and between X.X. XXXXXXXXXX &
SONS, a California general partnership ("Landlord"), and EMULEX CORPORATION, a
California corporation ("Tenant"), with respect to the following:
RECITALS
A. Landlord is the landlord and Tenant is the tenant pursuant to
that certain Lease dated June 30, 1999 (the "Original Lease"), as amended by
that certain First Amendment to Lease dated January 21, 2000 (the "First
Amendment"), that certain Second Amendment to Lease dated February 7, 2001 (the
"Second Amendment") and that certain Third Amendment to Lease dated February 21,
2002 (the "Third Amendment"). The Original Lease, First Amendment, Second
Amendment and Third Amendment are herein referred to, collectively, as the
"Lease."
B. Pursuant to the Lease, Tenant holds and occupies certain
premises consisting of:
(1) A certain building commonly known as 0000 Xxxxxx
Xxxxxxxxx (the "Original Premises");
(2) Suites 103 and 104 of R & D Building No. 6 (the "New
Premises"); and
(3) Xxxxx 000 xx X & X Xxxxxxxx Xx. 0 (the "1580
Premises"),
all of which are located in Harbor Gateway Business Center, Costa Mesa,
California (the "Center"). The Original Premises, New Premises and 1580 Premises
are herein referred to, collectively as the "Current Premises."
C. Landlord and Tenant desire to enter into this Amendment to add
to the Current Premises upon the terms and conditions set forth herein that
certain premises (the "HT-7 Premises") consisting of 40,020 square feet of
Rentable Area and constituting all of the Rentable Area in that certain building
commonly known as Hi-Tech Building No. 7, located at 0000 Xxxxxx Xxxxxx in the
Center (the "HT-7 Building"). The HT-7 Building is shown cross-hatched on
Exhibit "A" attached hereto.
AGREEMENT
IN CONSIDERATION OF the foregoing recitals, and the mutual
covenants contained herein, Landlord and Tenant agree as follows:
1. Leasing of HT-7 Premises . Landlord hereby leases to Tenant,
and Tenant hereby hires from Landlord, the HT-7 Premises upon all of the terms
and conditions of the
Lease, as hereby amended. Tenant shall hold and occupy the HT-7 Premises as part
of the Current Premises upon all the terms and conditions of the Lease, as
hereby amended, except that:
(a) The commencement date of the Lease with respect to the
HT-7 Premises (the "HT-7 Premises Commencement Date") shall be the date upon
which Landlord delivers possession of the HT-7 Premises to Tenant broom clean
and with all mechanical systems therein and roofing in good working order and
repair as of the date of such delivery. Tender of delivery of possession of the
HT-7 Premises shall be deemed to occur upon Landlord's delivery to Tenant of a
fully executed copy of this Amendment. It shall, however, be Tenant's
responsibility to obtain the keys to the HT-7 Premises from Landlord's manager
for the Center. From and after the HT-7 Premises Commencement Date, Tenant shall
lease the HT-7 Premises as part of the Current Premises upon all the terms and
conditions of the Lease, as hereby amended, applicable to the HT-7 Premises and
shall otherwise perform or observe all obligations of the tenant under the
Lease, as hereby amended, with respect to the HT-7 Premises, other than the
payment of all Monthly Basic Rent and Tenant's Proportionate Share of Total
Operating Expenses with respect to the HT-7 Premises as herein provided. From
and after the HT-7 Premises Commencement Date (i) the term of the Lease with
respect to the HT-7 Premises shall be coterminous with the term of the Lease for
the balance of the Current Premises, and (ii) except as otherwise expressly
provided in this Amendment, (A) the term "Premises" as used in the Lease and
this Amendment shall mean and include, respectively, both the Current Premises
(as defined in the Third Amendment) and the HT-7 Premises (as defined in this
Amendment), (B) the terms "Building" and/or "Building A" as used in the Lease
and this Amendment shall mean and include each of Building A (as defined in the
Original Lease), the New Building (as defined in the First Amendment), the 1580
Building (as defined in the Second Amendment), and the HT-7 Building (as defined
in this Amendment).
(b) The "HT-7 Premises Rent Commencement Date" shall be
June 1, 2002. From and after the HT-7 Premises Rent Commencement Date Tenant
shall perform and observe all obligations of the tenant under the Lease, as
hereby amended, with respect to the HT-7 Premises, including the payment of all
Monthly Basic Rent and Tenant's Proportionate Share of Total Operating Expenses
with respect to the HT-7 Premises in accordance with the provisions of
paragraphs 3 and 4 below.
(c) The provisions of Articles/Sections 11, 32, 41, 48.1,
48.3, 48.7(b), 48.9(g), 48.11, 48.19, 48.22, 48.23 and 48.27 of the Original
Lease shall have no application with respect to the HT-7 Premises or HT-7
Building. In addition, the provisions of the First Amendment (except paragraph 8
and Exhibit A attached thereto) and the Second Amendment shall have no
application to the HT-7 Premises.
(d) Those provisions of the Lease superseded or modified
by the provisions of this Amendment shall have no application (if superseded) or
shall apply only as modified (if modified) with respect to the HT-7 Premises.
(e) The HT-7 Premises is hereby being leased to Tenant and
added to the "Premises" under the Lease independent from and without regard to
the provisions of paragraph 5 of the Third Amendment. Paragraph 5 of such Third
Amendment shall, however, continue in full force and effect with respect to any
future Available Space (as defined therein).
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2. Condition of the HT-7 Premises.
(a) On the HT-7 Premises Commencement Date, Landlord shall
deliver the HT-7 Premises to Tenant broom clean and with all mechanical systems
therein and roofing in good working order and repair.
(b) Within three (3) days after the HT-7 Premises
Commencement Date, Landlord and Tenant shall conduct a joint inspection of the
HT-7 Premises. The purpose of such inspection shall be to establish the
condition of the HT-7 Premises as of the HT-7 Premises Commencement Date.
(c) Except as expressly provided in subparagraph (a)
above, Landlord shall deliver the HT-7 Premises to Tenant "AS IS," and Landlord
shall have no responsibility, either as to performance or payment of costs, to
improve the HT-7 Premises for Tenant. Any work of remodeling or improvement of
the HT-7 Premises by Tenant shall be the sole responsibility of Tenant and shall
be in accordance with the applicable provisions of the Lease.
(d) Landlord acknowledges that following the HT-7
Commencement Date, Tenant may elect to install new carpeting on and paint the
interior of the second floor of the HT-7 Premises. Any such work shall be
performed in accordance with the applicable provisions of the Lease and the
quality of any carpeting and/or paint shall be equal to or better than
Landlord's building standard grade and the color (and style with respect to any
carpeting) shall each be subject to Landlord's reasonable approval.
3. Monthly Basic Rent.
(a) Monthly Basic Rent for the HT-7 Premises shall be as
follows:
(i) For the period from the HT-7 Premises Rent
Commencement Date through and including December 31, 2002, Monthly Basic Rent
for the HT-7 Premises shall be in the sum of $19,009.50 (i.e., $0.475 per square
foot of Rentable Area per month).
(ii) For the balance of the term of the Lease with
respect to the HT-7 Premises, the sum of $38,019.00 (i.e., $0.95 per square foot
of Rentable Area per month).
(b) All such Monthly Basic Rent for the HT-7 Premises
shall be paid at the times and in the manner provided in Section 3.1 of the
Original Lease.
4. Additional Rent and Other Charges.
(a) From and after the HT-7 Premises Rent Commencement
Date, Tenant shall also pay at the times and in the manner provided in this
subparagraph (a) and Exhibit "B" attached to the First Amendment, Tenant's
Proportionate Share of Total Operating Expenses for the HT-7 Premises in
accordance with the following:
(i) Tenant's Proportionate Share of Total
Operating Expenses for the HT-7 Premises shall be one hundred percent (100%).
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(ii) For purposes of determining Building
Operating Expenses for the HT-7 Building, the same shall not include real
property taxes for the HT-7 Building. Rather, such taxes shall be paid directly
by Tenant pursuant to the provisions of Article 7 of the Original Lease.
(iii) With respect to each full or partial lease
year during the term with respect to the HT-7 Premises, Tenant shall pay an
amount equal to Tenant's Proportionate Share of Landlord's estimate of Total
Operating Expenses for such full year or partial lease year. At the end of each
lease year, an adjustment shall be made by Landlord, and Tenant shall pay such
amount or receive a credit of such amount as is necessary to adjust Tenant's
payments to Tenant's actual Proportionate Share of Total Operating Expenses for
such lease year. Such payments and adjustments shall be made as provided in
Exhibit "B" to the First Amendment. "Total Operating Expenses" and "Tenant's
Proportionate Share" are each defined in Exhibit "B" to the First Amendment.
(b) The payment by Tenant of Tenant's Proportionate Share
of Total Operating Expenses for the HT-7 Premises shall be in addition to the
payment of Monthly Basic Rent for the HT-7 Premises.
(c) In addition to Monthly Basic Rent and Tenant's
Proportionate Share of Total Operating Expenses for the HT-7 Premises, Tenant
shall also pay all other charges and additional rent provided for in the Lease,
as hereby amended, with respect to the HT-7 Premises and based (to the extent
applicable) upon the Rentable Area thereof.
5. Utilities. From and after the HT-7 Premises Commencement Date,
Tenant shall pay all charges for all utility services to the HT-7 Premises.
6. Common Facilities. All references in Paragraph 8 of the First
Amendment to the "New Building" and the "New Current Premises" shall mean and
include the HT-7 Building and the HT-7 Premises.
7. Parking Spaces for HT-7 Premises. From and after the HT-7
Premises Commencement Date, the following shall apply:
(a) Tenant's additional "Allocated Parking Spaces" within
the Parking Areas (as defined in Section 48.26 of the Original Lease) for the
HT-7 Premises is 160 spaces.
(b) Except as otherwise provided in the Lease, as hereby
amended, with respect to the Tenant's existing rights to use the Parking Areas
in connection with Tenant's occupancy of Building A, neither Tenant nor its
agents, employees, customers and invitees shall utilize in the aggregate at any
time a number of parking spaces in the Common Facilities in excess of the total
Allocated Parking Spaces for the Premises. In addition to any other remedies
granted to Landlord in the Lease, as hereby amended, or by law, upon default by
Tenant under the terms of this paragraph, Landlord shall have the right to tow
away any vehicles belonging to Tenant or Tenant's agents, employees, customers
or invitees as necessary to reduce the number of parking spaces used by Tenant
and such persons to that number of Allocated Parking Spaces set forth above.
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(c) All costs of cleaning, maintaining, operating,
repairing, holding and making available the Parking Area shall be included
within Common Facilities Expenses, as defined in Exhibit "B" to the First
Amendment and a portion thereof shall be included in Tenant's Proportionate
Share as defined in Exhibit "B" to the First Amendment with respect to the HT-7
Premises.
(d) Landlord may authorize persons other than tenants of
the Center, their agents, employees, customers and invitees to utilize the
Parking Area; provided, however, that in no event shall the number of spaces
available for Tenant with respect to the HT-7 Premises be less than that number
of Allocated Parking Spaces set forth above. The terms of such usage shall be as
determined by Landlord in its sole discretion and may include the right to use
the Parking Area without charge.
8. Tenant's Options. From and after the date hereof, the
provisions of Section 48.4 of the Original Lease shall have no further force or
effect.
9. Brokers. Landlord and Tenant acknowledge that Tenant has been
represented in connection with this Amendment by Xxxxxx X. Xxxxxxx, Inc.
("Tenant's Broker") and Landlord by CB Xxxxxxx Xxxxx ("Landlord's Broker"). To
the extent that Tenant's Broker and Landlord's Broker are entitled to any fee or
commission with respect to this Amendment, such fee or commission shall be the
sole responsibility of Landlord. Such commission shall be in an amount to be
established by a separate written agreement(s) between Landlord and Tenant's
Broker and Landlord and Landlord's Broker. Landlord shall indemnify, defend and
hold Tenant harmless from and against all claims by Tenant's Broker and
Landlord's Broker for a fee or commission in connection with this Amendment.
Except as provided in the immediately preceding paragraph, each
of Landlord and Tenant represents and warrants that it has retained or employed
no broker, finder or agent in connection with this Amendment and that there is
no broker, finder or agent entitled to a fee or commission with respect to this
Amendment under or through the warranting party. Each of Landlord and Tenant
agrees to indemnify, defend and hold the other harmless from and against all
claims resulting from a breach by the indemnifying party of the foregoing
warranty. Payment shall not be a condition precedent to recovery upon any
indemnification provision contained in this paragraph 9. Each such
indemnification provision shall include a covenant by the indemnifying party to
defend the indemnified party against all claims for which indemnification is
available hereunder with legal counsel selected by the liability insurance
carrier for the indemnifying party or otherwise reasonably satisfactory to the
indemnified party.
10. Lender Approval. Landlord and Tenant acknowledge and agree
that the continued effectiveness of this Amendment is subject to the approval of
this Amendment by Teachers Insurance and Annuity Association, Landlord's lender
with respect to the Center ("Lender"). Promptly upon the last execution and
delivery of this Amendment by Tenant and Landlord, Landlord shall submit this
Amendment to Lender with a request for approval hereof by Lender in writing.
Thereafter, Landlord shall use reasonable efforts to obtain the approval of
Lender to this Amendment as promptly as practicable. Promptly upon receipt of
such approval from Lender, Landlord shall so notify Tenant of the same. In the
event that Landlord is unable to obtain the approval of Lender to this Amendment
within thirty (30) days after Tenant's execution
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and delivery of this Amendment, either party shall have the right to terminate
this Amendment. Such right shall be exercised by either party by written notice
to the other given at any time after the expiration of such thirty (30) day
period and prior to Landlord's notice to Tenant as to such approval. If the
parties are entitled to terminate this Amendment and either party exercises such
right, then (a) this Amendment shall terminate upon the date of receipt of such
notice of termination by the recipient party, (b) each party shall bear its own
costs and fees incurred in the preparation and negotiation of this Amendment,
(c) neither party shall have any further rights or obligations pursuant to this
Amendment and (d) the Lease shall remain in full force and effect without regard
to this Amendment.
11. Counterparts. This Amendment may be executed in two (2) or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute a single instrument. It shall not be necessary for
Landlord and Tenant to execute the same counterpart(s) of this Amendment for
this Amendment to become effective.
12. Effective Date. Subject to paragraph 10 above, this Amendment
shall become effective upon the last execution and delivery hereof by Landlord
and Tenant.
13. Defined Terms. All terms used in this Amendment with initial
capital letters and not defined herein shall have the meanings given to such
terms in the Lease.
14. Conflicts. In the event of any conflict between the terms of
this Amendment and the terms of the Lease, the terms of this Amendment shall
control.
15. Lease in Effect. Landlord and Tenant acknowledge and agree
that the Lease, as hereby amended and extended, remains in full force and effect
in accordance with its terms.
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IT WITNESS WHEREOF, Landlord and Tenant have executed this Fourth
Amendment to Lease to be effective as provided in paragraph 12 above.
EMULEX CORPORATION, X.X. XXXXXXXXXX & SONS, a California
a California corporation general partnership
By Xxxxx X. Xxxxxxx By Xxxxx Xxxxxxxxxx
---------------------------------- -------------------------------
Manager
Title: EVP HR/Facilities
-----------------
By HTS Management Co., Inc., a
California corporation, Manager
By
----------------------------------
By Xxxxx X. Xxxxxxxxxx
Title: ----------------------------
-------------------------------
Title: Sr. Vice President
"Tenant" -------------------
"Landlord"
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