Exhibit 10.2
THIRD AMENDMENT
TO LEASE AGREEMENT
This THIRD AMENDMENT TO LEASE
AGREEMENT (“ Amendment ”), is entered into as of
the ___day of November, 2007, by and between BIXBY TECHNOLOGY
CENTER, LLC, a Delaware limited liability company (“
Landlord ”), as successor-in-interest to WIX/NSJ Real
Estate Limited Partnership, a Delaware limited partnership (“
Prior Landlord ”), and FOUNDRY NETWORKS, INC., a
Delaware corporation (“ Tenant ”), with
reference to the facts set forth in the Recitals below.
RECITALS :
A. Prior Landlord and Tenant
entered into that certain Lease Agreement dated September 28,
1999 (the “ Original Lease ”), as amended by
that certain: (i) First Amendment to Lease Agreement dated
February 16, 2000 and Second Amendment to Lease Agreement
dated July 28, 2005 (collectively, the “ Lease
”) pursuant to which Landlord currently leases to Tenant
approximately 70,755 rentable square feet in the building located
at 2100 Gold Street, Alviso, California 95002 (the “
Premises ”) as more particularly described in the
Lease. The Premises are part of the development known as Bixby
Technology Center (the “ Park ”). Landlord has
succeeded to Prior Landlord’s interest as landlord under the
Lease.
B. Capitalized terms not defined
in this Amendment have the meanings given to them in the
Lease.
C. The Lease Term is scheduled
to expire on May 31, 2008.
D. Landlord and Tenant desire to
amend the Lease in order to, among other things, extend the Lease
Term upon and subject to the terms set forth below.
AGREEMENT :
NOW THEREFORE, in consideration of
the above Recitals and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree as
follows:
1. Extended Term . The
Term is hereby extended for thirty-two (32) months from
June 1, 2008 (the “ Extended Term Commencement
Date ”), expiring on January 31, 2011 (the “
Termination Date ”), unless sooner terminated pursuant
to the terms of the Lease (the “ Extended Term
”).
2. Base Rent . Prior to
the Extended Term Commencement Date, Tenant shall continue to pay
Base Rent for the Premises in accordance with the Lease. Commencing
as of the Extended Term Commencement Date and continuing until the
Termination Date, Tenant shall make payments of Base Rent on a
monthly basis pursuant to the Lease in accordance with the
following schedule:
| |
|
|
|
|
|
Period |
|
Monthly Base Rent |
|
6/1/2008 —
5/31/2009
|
|
$ |
109,670.25 |
|
|
6/1/2009 —
5/31/2010
|
|
$ |
116,745.75 |
|
|
6/1/2010 —
1/31/2011
|
|
$ |
120,283.50 |
|
3. Condition of Premises
. Tenant acknowledges that it is presently in possession of the
Premises pursuant to the Lease and is fully aware of the condition
of the Premises. Landlord shall not be obligated to refurbish or
improve the Premises in any manner whatsoever or to otherwise
provide funds for the improvement of the Premises in conjunction
with the Extended Term, and Tenant hereby accepts the Premises
“AS-IS”. Tenant further acknowledges that except as
expressly provided in the Lease and this Amendment, neither
Landlord nor any agent of Landlord has made any representation or
warranty regarding the condition of the Premises, the improvements,
refurbishments, or alterations therein, or the Building or with
respect to the functionality thereof or the suitability of any of
the foregoing for the conduct of Tenant’s business and that
all representations and warranties of Landlord, if any, are as set
forth in the Lease and this Amendment.
4. Notice Addresses .
Landlord’s Address for notices and payment of rent set forth
in the Lease is hereby deleted and replaced by the following
address:
Bixby
Technology Center, LLC
c/o Bixby Land Company
2211 Michelson Drive, Suite 500
Irvine, California 92612
Attention: Property Manager
5. ERISA . Tenant
represents and warrants to Landlord that neither Tenant nor any
guarantor of Tenant’s obligations under the Lease is
(a) a party in interest, as defined in Section 3(14) of the of
the
Employee
Retirement Income Security Act of 1974, as amended (“
ERISA ”), to the AFL-CIO Building Investment Trust
(“ Trust ”), or of any of the plans
participating therein, or (b) a disqualified person under
Section 4975(e)(2) of the Internal Revenue Code of 1986, as
amended (“ Code ”), with respect to the Trust or
the plans participating therein. Neither Tenant nor any guarantor
of Tenant’s obligations under the Lease shall take any action
that would cause the Lease or the exercise by Landlord or the Trust
of any rights hereunder, to be a non-exempt prohibited transaction
under ERISA. Notwithstanding any contrary provision of the Lease,
Tenant shall not assign the Lease or sublease all or any portion of
the Premises unless (i) such assignee or subtenant delivers to
Landlord a certification (in form and content satisfactory to
Landlord) with respect to the status of such assignee or subtenant
(and any guarantor of such assignee’s or subtenant’s
obligations) as a party in interest and a disqualified person, as
provided above; and (ii) such assignee or subtenant undertakes
not to take any action that would cause the Lease or the exercise
by Landlord or the Trust of any rights hereunder, to constitute a
non-exempt prohibited transaction under ERISA.
Notwithstanding any contrary
provision of the Lease, Tenant shall not (a) sublease all or
any portion of the Premises under a sublease in which the rent is
based on the net income or net profits of any person, or
(b) take any other action
