EXHIBIT 10.15
FIRST AMENDMENT TO LEASE
This Amendment is made as of July 1, 2004 (the "Effective Date"), by and
between Xxxx X. Xxxxxxx, and Xxxxxxx X. Xxxxxx, Trustees of the 1993 Xxxxxxx
Family Trust, successor-in-interest to Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx
Company, (hereinafter referred to as Landlord), and Emulex Design &
Manufacturing Corporation, a Delaware corporation, successor-in-interest to
Giganet, Inc., (hereinafter referred to as Tenant),
WITNESSETH:
WHEREAS, by a certain Lease Agreement August 16, 2000, as amended by a
Letter Agreement dated September 14, 2000, and a Letter Agreement dated October
3, 2000, (hereinafter referred to as the "Lease"), Landlord leased to Tenant, a
certain premises described as Suite Number 110 consisting of approximately
13,587 square feet of space located on the first (1st) floor and Suite Number
210 consisting of approximately 21,500 square feet of space located on the
second (2nd) floor ("Phase I Premises"), and Suite Number 002 consisting of
approximately 7,600 square feet of space on the lower level and the remaining
portion of Suite Number 110 consisting of approximately 7,913 square feet of
space located on the first (1st) floor ("Phase II Premises), for a total of
approximately 50,600 square feet of space located at Xxxxxx Xxxxxx Xxxx, 000
Xxxx Xxxxxx, Xxxxxx, XX 00000, more particularly described therein as
("Premises"), and
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged each to the other, the above named parties do hereby agree to amend
said Lease as follows:
1. The Lease Term for the Phase I Premises and the Phase II Premises is
hereby extended prior to the original expiration date of October 31,
2005 for a period of seven (7) years, commencing on the Effective
Date and expiring June 30, 2011 (hereinafter referred to as the
"Extended Term").
2. This First Amendment shall be effective as of July 1, 2004.
3. Effective July 1, 2004, Article I, Section 1.2 of the Lease, namely
Basic Data, Mailing Address of Tenant, shall be deleted in its
entirety and replaced with the following:
Mailing Address
Of Tenant:
Emulex Design & Manufacturing Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, EVP HR and Facilities
With a copy to:
Emulex Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx, Esq., General Counsel
4. Effective July 1, 2004, Article I, Section 1.2 of the Lease, namely
Basic Data, Base Rent, shall be deleted in its entirety and replaced
with the following:
Base Rent:
For the first (1st) year of the Extended Term continuing
through and including the seventh (7th) year of the Extended
Term, at the rate of $532,861.00 per annum ($44,405.08 per
month, i.e. $63,304.00 per annum for suite 110 and $469,557.00
to the remainder of the Premises).
5. Effective July 1, 2004, Article IV of the Lease, namely Rent, shall
be amended, in part, by inserting the following section:
4.4 INDEPENDENT COVENANTS
It is the intention of the parties hereto that the obligations of
Tenant hereunder shall be separate and independent covenants and
agreements, and that Basic Rent, Additional Rent and all other sums
payable by Tenant hereunder shall continue to be payable in all
events, unless the requirement to pay or perform the same shall have
been abated, offset or terminated pursuant to the express provisions
of this Lease. Basic Rent, Additional Rent and all other sums
payable hereunder by Tenant shall be paid without notice or demand,
and without setoff or deduction except as specifically set forth in
this Lease. This Lease shall not terminate and Tenant shall not have
any right to terminate this Lease, during the Term (except as
otherwise expressly provided in this Lease). Tenant agrees that, it
shall not take any action to terminate, rescind or avoid this Lease
notwithstanding any default by Landlord hereunder or under any other
agreement between Landlord and Tenant except for termination rights
expressly set forth in the Lease.
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6. Effective July 1, 2004, Article III, Section 3.3 of the Lease,
namely Option to Extend, shall be deleted in its entirety and
replaced with the following:
3.3 OPTION TO EXTEND
Provided that (i) Tenant has not assigned the Lease (except for
Permitted Transfers and assignees approved by Landlord), and (ii)
Tenant has not sublet more than 50% of the Premises (excluding
Permitted Transfers) at such time (whether the term of the sublease
has commenced or is to be commenced thereafter) and Tenant will not
be exercising the rights hereinafter set forth with the intent of
assigning the Lease, then Tenant has the right to extend the Lease
Term for the Phase I Premises and the Lease Term for the Phase II
Premises for one (1) five (5) year period ("Extension Period") at a
Base Rent equal to 95% of the then Current Market Rent (as
hereinafter defined), and otherwise on the same terms and conditions
as this Lease, except that there shall be no further rights to
extend either the Phase I Premises Lease Term or the Phase II
Premises Lease Term. Tenant shall exercise this option by written
notice to Landlord not more than twelve (12) months nor less than
six (6) months before the expiration of the Lease Term. Tenant's
exercise of this option shall be effective only if, at the time of
notice and upon the effective date of the Extension Period, there is
no uncured Event of Default.
Thereupon, this Lease shall be deemed extended for an additional
period of five (5) years, upon all of the same terms and conditions
of this Lease and any Amendments made hereto with the exception of
the annual rent stipulated hereinabove.
7. Effective July 1, 2004, Article XVII of the Lease, Section 17.15,
namely Miscellaneous Provisions, Security Deposit, shall be deleted
in its entirety and be of no further force or effect. Accordingly,
upon execution of this First Amendment to Lease by both parties,
Landlord hereby agrees to return the original Letter of Credit to
Silicon Valley Bank with a request to terminate the Letter of Credit
and issue a notice of termination letter to Landlord and Tenant. The
Landlord shall provide a concurrent copy of such notice and request
for termination to Tenant.
8. Effective July 1, 2004, Article XVII of the Lease, namely
Miscellaneous Provisions, shall be amended, in part, by inserting
the following section:
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17.23 RIGHT OF FIRST REFUSAL
Provided an Event of Default has not occurred during the Term of the
Lease (as the same may be extended), Landlord shall grant to Tenant
a right of first refusal on any space located at Xxxxxx Xxxxxx Xxxx,
000 Xxxx Xxxxxx, Xxxxxx, XX 00000, ("Office Park"), subject to the
terms and conditions of this Section 17.23. If Landlord receives a
bona fide offer ("Bona Fide Offer") from a third party (a
"Prospective Tenant") to lease any space retained by Landlord in the
Building (the "Right of First Refusal Space") upon terms and
conditions which Landlord desires to accept, Landlord shall first
offer the entire Right of First Refusal Space to Tenant upon the
same terms, covenants and conditions as provided in such Bona Fide
Offer. Tenant shall have the right (the "Right of First Refusal") to
be exercised by written notice delivered to Landlord within ten (10)
days after receipt of Landlord's offer to lease the Right of First
Refusal Space upon the terms and conditions set forth in the Bona
Fide Offer. If Tenant notifies Landlord in writing of Tenant's
exercise of such Right of First Refusal within such ten (10) day
period after Landlord has delivered such offer to Tenant, Landlord
and Tenant shall within thirty (30) days thereafter enter into a
written agreement modifying and supplementing the Lease and
specifying that such Right of First Refusal Space accepted by Tenant
is a part of the Premises for the remainder of the Term (as the same
may be extended), and containing other appropriate terms and
conditions relating to the addition of the Right of First Refusal
Space to this Lease (including specifically any increase or
adjustment of rent as a result of such addition). If Tenant does not
notify Landlord in writing of its acceptance of such offer in such
ten (10) day period, then Tenant's rights under this Section 17.23
with respect to the then Right of First Refusal Space shall
terminate and Landlord shall thereafter be able to lease the Right
of First Refusal Space or any portion thereof to the Prospective
Tenant subject to reinstatement as provided below. In the event
Tenant elects (or is deemed to have elected) not to exercise its
right to lease a Right of First Refusal Space as provided above,
Landlord may thereafter for a period of six (6) months offer such
Right of First Refusal Space to the Prospective Tenant upon
substantially the same terms and conditions that it offered such
space to Tenant. Prior to the Landlord offering such space to the
Prospective Tenant upon rental terms and conditions which are not
more than five percent (5%) less than initially offered to Tenant,
or if Landlord has not entered into a lease for the offered space
within six (6) months after Tenant elected (or was deemed to have
elected) not to execute its right of first refusal to lease
hereunder, Landlord will first offer the space to Tenant upon
Landlord's newly proposed terms and conditions in any then current
Bona Fide Offer, and the procedure set forth above shall be repeated
except that Tenant shall have five (5) business days to notify
Landlord of its election to lease the Right of First Refusal Space
pursuant to the modified offer.
9. Effective July 1, 2004, Article XVII of the Lease, namely
Miscellaneous Provisions, shall be amended, in part, by inserting
the following section:
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17.24 TENANT'S RIGHT TO TERMINATE
Provided that Tenant has not assigned the Lease (except for
Permitted Transfers or assignees approved by Landlord), then Tenant
shall have a one time right to terminate this Lease after the fifth
(5th) full year of the Extended Term, provided all of the following
terms and conditions are satisfied, time being of the essence: (i)
no uncured Event of Default shall then be outstanding; (ii) Tenant
exercises the option to terminate by written notice delivered to
Landlord no later than six (6) months prior to the effective date of
termination (hereinafter referred to as the "Termination Notice");
and (iii) Tenant pays to Landlord a termination fee of $388,672.08
(the "Termination Payment").
The Termination Payment shall be paid to Landlord by cashier's
check, wire transfer of funds or other cash equivalent and shall be
due sixty (60) days prior to the effective date of the termination.
Notwithstanding the foregoing, in the event the Tenant exercises the
aforementioned termination right, Rent, Additional Rent, and all
other charges will be due and payable until the later of (i) the
date Tenant fully vacates the Premises or (ii) six (6) months
following Landlord's receipt of the Termination Notice.
10. In consideration of the Extended Term and other provisions of this
Amendment, Landlord shall pay Tenant an inducement payment in the
amount of $396,887.00 (the "Lease Inducement Payment"). The Lease
Inducement Payment shall be paid, provided no Event of Default is
outstanding under this Lease on or before October 4, 2004. Provided,
however, that if an Event of Default is then outstanding under this
Lease, such payment shall be made within thirty (30) days after
Tenant has cured such Event of Default. In the event Landlord fails
to timely pay the Lease Inducement Payment, then, in addition to any
other remedies available to Tenant, Tenant may upon written notice
of such default to Landlord offset the outstanding amount of such
payment against Rent and Additional Rent coming due under the Lease
until such unpaid amount has been off-set or paid in full.
11. In consideration of the Extended Term and other provisions of this
Amendment, Landlord agrees to perform the Landlord work described on
Exhibit "A" attached hereto and incorporated herein by this
reference (the "Landlord's Work"), within the timeframes set for in
such Exhibit.
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12. Other than Xxxxx Xxxxx of Xxxxxxx and Xxxx Xxxx of Cresa Partners
("Broker"), Landlord and Tenant each warrant that there are no
claims for broker's commission or finder's fees in connection with
its execution of this Amendment or the tenancy hereby created and
each party agrees to indemnify and save the other harmless from any
liability that may arise from any such claim arising out of the
representation or purported representation of such party, including
reasonable attorneys fees. Landlord agrees to pay any broker's
commission or finders fees due to Broker in accordance with a
separate agreement between Landlord and Broker.
13. Tenant acknowledges that it has examined and inspected the Premises
and is familiar with the physical condition thereof. Tenant further
acknowledges that, except for the (i) Landlord's Work, (ii)
Landlord's maintenance obligations in accordance with Article VIII,
Section 8.2 of the Lease, namely Repairs and Maintenance, Landlord
Obligations or (iii) other express Landlord maintenance obligations
under the terms of the Lease, (1) Landlord has not made and does not
hereby make any representations regarding the physical condition of
the Premises, (2) there are no warranties, either expressed or
implied, regarding the condition of the Premises and (3) Tenant
agrees to accept the Premises in their "as is" condition.
14. One (1) Guaranty of Lease is attached hereto and made a part hereof.
15. Except where this First Amendment to Lease specifically changes
same, all other terms, conditions and covenants of the original
Lease Agreement shall remain the same, where applicable, and are
hereby reaffirmed. Defined terms used in this First Amendment to
Lease and not otherwise defined herein shall have the meaning
described to such terms in the Lease.
16. The submission of this document for examination and negotiation does
not constitute an offer, and this document shall become effective
and binding only upon the execution thereof by both Landlord and
Tenant, regardless of any written or verbal representation of any
agent, manager or other employee of Landlord to the contrary. All
negotiations, consideration, representations and understandings
between Landlord and Tenant are incorporated herein and the Lease
and this First Amendment to Lease expressly supersede any proposals
or other written documents relating hereto. The Lease and this First
Amendment to Lease may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of
the provisions thereof.
17. This First Amendment to Lease may be executed in counterparts, each
of which shall be an original, but all of which together shall
constitute one in the same agreement.
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IN WITNESS WHEREOF, the parties hereto have signed and sealed this
instrument on the day and year first above written.
LANDLORD Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx,
Trustees of the 1993 Xxxxxxx Family
Trust
/s/ Xxxx X. Xxxxxxx
------------------------------- -----------------------
WITNESS By: Xxxx X. Xxxxxxx
Its: Trustee
/s/ Xxxxxxx X.Xxxxx
------------------------------- -----------------------
WITNESS By: Xxxxxxx X. Xxxxxx
Its: Trustee
TENANT Emulex Design & Manufacturing
Corporation, a Delaware corporation
/s/ Xxxx X. Xxxxxx
------------------------------- ---------------------------
WITNESS By: Xxxx X. Xxxxxx
Its: Chairman & CEO
/s/ Xxxxxxx. X. Xxxxxxxxxx
------------------------------- ---------------------------
WITNESS By: Xxxxxxx X. Xxxxxxxxxx
Its: Executive V.P. & CFO
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EXHIBIT A
Landlord shall perform the following work:
1. All code compliance work for all common areas of the Building and Project.
2. Replace at least 5 heat pumps serving the Premises each Lease year of the
Extended Term.
3. Install a new filter system on the domestic water by January 31, 2005.
4. Install new water heaters and safety's in Tenants space by September 30,
2004.
5. Repair and replace any damaged or discolored ceiling tiles in the Premises
throughout the Extended Term.
The equipment to be installed pursuant to paragraphs 2, 3 and 4 above shall be
new, of good quality and shall have sufficient capacity to service the Premises.
Such equipment shall be subject to Tenant written approval prior to
installation, which approval will not be unreasonably withheld or delayed.
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