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EXHIBIT 10.8
EXPANSION OPTION AGREEMENT
THIS EXPANSION OPTION AGREEMENT (this "Agreement") is made and entered
into as of the 27 day of October, 1999 by and between CORPORATE TECHNOLOGY
CENTRE ASSOCIATES LLC, a California limited liability company ("Landlord"), and
REDBACK NETWORKS, INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Lease dated of even
date herewith for Building 4 (the "Building 4 Lease") in Corporate Technology
Centre, San Jose, California (the "Project"), which Project is shown on the Site
Plan attached hereto as Exhibit "A", and that certain Lease dated of even date
herewith for Building 3 in the Project (the "Building 3 Lease").
B. Landlord has agreed to grant certain rights to Tenant regarding
Parcel 2 of the Project (the "Property"), to be located at 000 Xxxxxx Xxx, Xxx
Xxxx, Xxxxxxxxxx, which Landlord currently plans to improve with one (1)
building containing approximately 76,410 square feet ("Building 2"), which
Property is shown on the Site Plan attached hereto as Exhibit "B"; provided
however that, if such Property is adjusted prior to final legal parcelization,
the Property shall consist of the final legal parcel resulting from such
parcelization.
C. Capitalized terms used in this Agreement and not otherwise defined
shall have the meanings assigned to them in the Building 3 Lease and the
Building 4 Lease.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
1. NOTICE OF AVAILABILITY. Landlord shall use commercially reasonable efforts to
inform Tenant of the availability of additional space in the Project when such
space is available for lease by third parties.
2. EXPANSION OPTION. Subject to the conditions precedent set forth in Section 4
below, Landlord hereby grants to Tenant the option to lease (the "Expansion
Option") the entirety of Building 2, subject to the following conditions:
(A) Tenant shall provide written notice given to Landlord no later than 5:00
p.m. (California time) on July 31, 2000, of Tenant's election to lease Building
2 pursuant to the terms set forth herein;
(B) In the event the Expansion Option is exercised in a timely fashion, Landlord
and Tenant shall enter into a new lease for Building 2, which lease shall be
upon all of the terms and conditions of the Building 3 Lease, including, without
limitation, lease commencement date, the base monthly rent per square foot, and
annual increases thereto, and the provisions in the Work Letter for the Building
3 Lease (including completion and delivery dates); provided, however, that the
square footage of the Leased Premises shall be 76,410 rentable square feet. In
addition, the building shell for Building 2 shall be built in accordance with
the building plans and specifications prepared Xxxxxxxx Xxxxx + Xxxxxxxx on
behalf of Landlord, described as Corporate Technology Centre, Phase II "Issued
for Permit" plans dated June 21, 1999 ("Base Building Plans") which have been
approved by Tenant prior to the date hereof.
(C) In the event Tenant fails to provide Landlord with notice of its exercise of
the Expansion Option granted by this Section 2 prior to 5:00 p.m. (California
time) on July 31, 2000, all of Tenant's rights under this Section 2 shall
terminate and be of no further force or effect.
3. RIGHT OF FIRST OFFER. In the event the Expansion Option terminates as set
forth in Section 2(c) above, then subject to the conditions precedent set forth
in Section 4 below, Tenant shall have the following rights regarding Building 2:
(A) Commencing on August 1, 2000, prior to entering into a lease proposal with a
third party for Building 2, Landlord shall deliver a written notice (the
"Building 2 Notice") to Tenant setting forth the terms upon which Landlord is
willing to lease Building 2 to Tenant. Tenant shall notify Landlord in writing
with five (5) business days after receipt of the Building 2 Notice of Tenant's
election to lease Building 2 on the terms set forth in the Building 2 Notice
("Tenant's Election Notice"). Failure of Tenant to deliver such notice within
the required time period shall be deemed an election by Tenant to not lease
Building 2 and Tenant shall have no further rights to lease Building 2
thereafter. Tenant's right under this Section 3 is a one-time right. Failure of
Tenant to deliver Tenant's Election Notice within the required time period shall
cause this Agreement to terminate and be of no further force or effect.
(B) In the event Tenant delivers Tenant's Election Notice within the time period
required herein, Landlord and Tenant shall enter into a lease for Building 2
within ten (10) business days after Landlord's receipt of Tenant's Election
Notice, which lease shall be substantially identical to the Building 3 Lease,
provided, however, that (1) the square footage of the Leased Premises shall be
the net rentable footage determined by Landlord after construction of Building
2, (2) the economic terms (including, without limitation, the amount of rent and
the tenant improvement allowance, if any) shall be the terms set forth in the
Building 2 Notice, and (3) the lease term shall be coterminous with the Building
3 Lease and Building 4 Lease. In addition, the building shell for Building 2
shall be built in accordance with the Base Building Plans.
4. CONDITION PRECEDENT. Anything herein to the contrary notwithstanding, (a) if
Tenant is in default under any of the
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terms, covenants or conditions of any lease or other agreement between Landlord
and Tenant at the time (i) Tenant exercises the Expansion Option, (ii) Landlord
delivers the Building 2 Notice to Tenant or (iii) at the commencement of the
term of the lease for Building 2, or (b) Tenant has subleased fifty percent
(50%) or more of total square footage in Building 3 and Building 4, at the time
(i) Tenant exercises the Expansion Option, (ii) Landlord delivers the Building 2
Notice to Tenant or (iii) at the commencement of the term of the lease for
Building 2, or (c) Tenant has assigned its interest in any lease between
Landlord and Tenant for fifty percent (50%) or more of total square footage in
Building 3 and Building 4 at the time (i) Tenant exercises the Expansion Option,
(ii) Landlord delivers the Building 2 Notice to Tenant or (iii) at the
commencement of the term of the lease for Building 2, then Landlord shall have
the right to terminate the Tenant's rights under this Agreement and any lease
for Building 2 upon notice to Tenant.
5. GENERAL PROVISIONS.
(A) NOTICES. Any notice required or permitted to be given under this Agreement
shall be in writing and (i) personally delivered, (ii) sent by United States
mail, registered or certified mail, postage prepaid, return receipt requested,
(iii) sent by Federal Express or similar nationally recognized overnight courier
service, or (iv) transmitted by facsimile with a hard copy sent within one (1)
business day by any of the foregoing means, and in all cases addressed as
follows, and such notice shall be deemed to have been given upon the date of
actual receipt or delivery (or refusal to accept delivery) at the address
specified below (or such other addresses as may be specified by notice in the
foregoing manner) as indicated on the return receipt or air xxxx:
TO LANDLORD: Corporate Technology Centre Associates LLC
c/o Menlo Equities LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx/Xxxxxxx X. Xxxxxxxxx
Facsimile (000) 000-0000
TO TENANT: Redback Networks, Inc.
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx
Facsimile (000) 000-0000
(B) ENTIRE AGREEMENT; NO MODIFICATIONS. This Agreement, together with the
schedules and exhibits attached hereto, incorporates all agreements, warranties,
representations and understandings between the parties to the Agreement with
respect to the subject matter hereof and constitutes the entire agreement of
Landlord and Tenant with respect to the lease of the Premises. Any prior or
contemporaneous correspondence, memoranda, understandings, offers, negotiations
and agreements, oral or written, are merged herein and replaced in total by this
Agreement and the exhibits hereto and shall be of no further force or effect.
This Agreement may not be modified or amended except in a writing signed by
Landlord and Tenant.
(C) TIME. Time is of the essence in the performance of the parties' respective
obligations set forth in this Agreement.
(D) SUCCESSORS AND ASSIGNS. Subject to the foregoing provisions, this Agreement
shall inure to the benefit of and be binding upon the parties to this Agreement
and their respective successors and assigns. Tenant shall have the right to
assign its rights under this Agreement to a "Permitted Assignee" as defined in
the Building 3 and Building 4 Leases.
(E) COUNTERPARTS. This Agreement may be executed in one or more counterparts and
each such counterpart shall be deemed to be an original; all counterparts so
executed shall constitute one instrument and shall be binding on all of the
parties to this Agreement notwithstanding that all of the parties are not
signatory to the same counterpart.
(F) CONSTRUCTION. This Agreement shall be governed by and construed under the
laws of the State of California. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that no rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall be employed in the interpretation of this Agreement or any
schedules or exhibits to it or any document executed and delivered by either
party in connection with this Agreement. All captions in this Agreement are for
reference only and shall not be used in the interpretation of this Agreement or
any related document. If any provision of this Agreement shall be determined to
be illegal or unenforceable, such determination shall not affect any other
provision of this Agreement and all such other provisions shall remain in full
force and effect.
IN WITNESS WHEREOF, Tenant and Landlord have executed this Agreement as
of the date and year first written above:
LANDLORD:
CORPORATE TECHNOLOGY CENTRE ASSOCIATES llc,
a California limited liability company
By: Corporate Technology Centre Partners LLC,
a California limited liability company,
Its Manager
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By: Menlo Equities LLC,
a California limited liability
company,
Its Managing Member
By: Menlo Equities, Inc.,
Its Managing Member
Dated: October 27, 1999 By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
President
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TENANT:
REDBACK NETWORKS, INC.,
a Delaware corporation
Dated: October 27, 1999 By: /s/ XXXXX X. XXXXXXX
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Title:
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Dated: By:
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Title:
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