exv10w1



 







EXHIBIT 10.1




SECOND AMENDMENT TO LEASE




     This
Second Amendment to Lease (“Amendment”) is entered into this 26th day of
May, 2006 by and between Brass Creekside, L.P., successor in interest to LM
Venture, L.L.C., as “Landlord”, and Emulex Design & Manufacturing Corporation, a Delaware
Corporation, as “Tenant”:



WITNESSETH:




     WHEREAS, by that certain Real Estate Lease (Multiple Tenant Building) dated September 12,
2000 (“Initial Lease”), as amended by that certain First Amendment to lease dated February
8, 2001 (as amended, the “Lease”), Landlord leases to Emulex Corporation, a California
corporation (“Initial Tenant”), approximately 23,587 square feet of office space located at 1921
Corporate Center Circle, Suite 3B (the “Existing Premises"), The Creekside Business Park,
in the city of Longmont, Boulder County, Colorado; referenced being heremade to said Lease for all
pertinent purposes;



     WHEREAS, Initial Tenant assigned its interest in the Lease to Tenant pursuant to the terms and
conditions of that certain Assignment and Assumption of Lease dated
as of May 26, 2006; and



     WHEREAS, Landlord and Tenant desire to amend the Lease.



     NOW, THEREFORE, in consideration of the promises and the mutual benefits to accrue to Landlord
and Tenant under and by virtue to this Amendment, Landlord and Tenant hereby amend the Lease as
follows:




	 
	 
	 	A.	 	Section 1.12— Rent and Other Charges Payable by Tenant — Effective June
15, 2006, Monthly Base Rent under the Lease shall be as follows:





	 	 	 
	Monthly Period	 	Monthly Base Rental
	6/15/06 — 10/14/06
	 	$0.00
	10/15/06 — 10/31/06
	 	$11,610.09
	11/1/06 — 5/31/07
	 	$21,171.33
	6/1/07 — 6/30/07 *
	 	$21,445.07
	7/1/07 — 5/31/08
	 	$22,133.67
	6/1/08 — 6/30/08 *
	 	$22,646.92
	7/1/08 — 5/31/09
	 	$23,096.00
	6/1/09 — 6/30/09 *
	 	$23,609.24
	7/1/09 — 5/31/10
	 	$24,058.33
	6/1/10 — 6/30/10 *
	 	$24,571.58
	7/1/10 — 9/30/11
	 	$25,020.67
	10/1/11 — 10/14/11
	 	$11,676.31






 









 







	 	•	 	June rent is blended, with the first 14 days of the month being
allocated rent at the previously applicable rental rate, and the final
16 days of the month being allocated rent at the increased rental rate.






	 	B.	 	Section 1.04 — Premises — Effective June 15, 2006, Tenant’s premises shall
consist of approximately 23,096 square feet. Tenant agrees that such change in the
square footage of the premises shall not be retroactive to the effective commencement
date of this amendment and in any event shall not warrant any rental credits,
abatements or refunds of base rent or other charges payable by Tenant for any
difference in square footage.
	 
	 	C.	 	Section 1.01 — Lease Term — The term of the Lease is hereby extended for an
additional sixty-four (64) month period, expiring October 14, 2011.
	 
	 	D.	 	Landlord’s Work — Pursuant to a schedule approved by Tenant, Landlord shall
cause the entire Existing Premises to be recarpeted and repainted. The carpeting shall
have the following specifications: Manufacturer — Shaw; Style — Evolution 50913;
Color — Exotic Sea Salt 13315. Tenant shall choose paint color from samples provided
by Landlord to Tenant on May 11, 2006. Landlord shall be responsible for the moving,
of Tenant’s furniture, fixtures and personal property common to office environments
that is required in order to permit Landlord to perform its carpet installation and
painting required by this Paragraph C. Tenant shall prepare all furniture and fixtures
for such move by securing all loose items and removing all files or paperwork as
necessary. In addition, Tenant will need to unplug and secure any electronic equipment
which shall include servers, computers and monitors (if applicable). All work to be
performed by Landlord pursuant to this Paragraph C shall be referred to herein as the
“Landlord’s Work.”
	 
	 	 	 	Landlord shall cause the Landlord’s Work to be completed by no later than December
31, 2006. To minimize disruption caused by the performance of Landlord’s Work,
Landlord shall cause the Landlord’s Work to be performed on weekends, holidays and
after Tenant’s regular business hours. The cost of Landlord’s Work shall be at
Landlord’s sole cost and expense, without reimbursement by Tenant.
	 
	 	E.	 	Renewal Option —
	 
	 	 	 	Tenant shall have the right to renew and extend this Lease with respect to the
Leased Premises then subject to this Lease for the Renewal Term(s) upon and subject
to the following terms and conditions:
	 
	 	 	 	1. Tenant may renew the Term of this Lease for one (1) additional five (5) year
period (the “Renewal Term”). The Renewal Term shall commence immediately upon the
expiration of the original Term if Tenant shall give written notice to Landlord of
its exercise of its renewal option no later than one hundred and eighty days (180)
prior to the expiration of the Term. If Tenant does not




 









 






	 	 	 	timely exercise its Renewal Option, then Tenant shall have no further right to
extend the Term.
	 
	 	 	 	2. The exercise by Tenant of the renewal option granted hereinabove must be made, if
at all, by written notice executed by Tenant and delivered to Landlord on or before
the date set forth hereinabove. Once Tenant shall exercise the renewal option,
Tenant may not thereafter revoke such exercise. Tenant shall not have the right to
exercise the renewal option at a time Tenant is in default (after the giving of
written notice and the expiration of the applicable cure period) under this Lease.
Tenant’s failure to timely exercise the renewal option shall conclusively be deemed
to be an election against exercising its renewal option.
	 
	 	 	 	3. Tenant will accept the Leased Premises in its then “as-is” condition at the
commencement of the Renewal Term and Landlord shall have no obligation to make any
further improvements or alterations to the Leased Premises.
	 
	 	 	 	4. The annual Base Rent for the Renewal Term shall be at ninety-five percent (95%)
of the Fair Market Rental (hereafter defined).
	 
	 	 	 	5. As used in this Amendment, “Fair Market Rental” shall mean the base or minimum
rental rate per square foot of rentable area per year for a nonrenewal arms’ length
lease of comparable premises in a comparable project in the Longmont/Boulder,
Colorado market (the “Comparison Market”), after giving consideration to all factors
that would be considered relevant by a commercial real estate broker, including
without limitation (i) the size, location within the building and configuration of
the premises, (ii) the amenities of the project in which the building containing the
leased premises is located, (iii) the improvements of the premises and the class /
quality of the Project, (iv) rental abatement, moving allowances and other monetary
inducements being offered to tenants in the Comparison Market, (v) tenant
improvement allowances and other construction obligations to be performed or
otherwise funded by landlord. Landlord and Tenant shall negotiate in good faith to
determine the Fair Market Rental after Landlord receives notice of Tenant’s exercise
of its right to extend the term pursuant to this Paragraph E. In the event that
Landlord and Tenant have not determined the Fair Market Rent by the commencement
date of the Renewal Term, then Tenant shall pay the Base Rent payable under this
Lease for the Renewal Term until such time as the base rent for the Renewal Term has
been determined. No later than fifteen (15) days after such determination, either
Tenant shall pay to Landlord, or Landlord shall refund to Tenant, as may be
applicable, the difference between the base rent paid by Tenant for the Renewal Term
and the actual rent for the Renewal Term, determined in accordance with this
paragraph.
	 
	 	F.	 	Termination Right — At any time prior to December 14, 2008, Tenant may elect
to terminate the Lease effective as of June 14, 2009 (“Termination Date”) by the
delivery of written notice of such termination to Landlord. On or before the




 









 






	 	 	 	Termination Date, Tenant shall pay to Landlord the unamortized balance (amortized on
a straight-line basis over the five-year term of this Amendment) of leasing
commissions actually paid by Landlord to both Landlord and Tenant Brokers (which
commissions shall be (i) to Tenant’s broker, 4% of aggregate triple net base rental
amounts for only the 64-month extension of the term pursuant to this Amendment and
(ii) to Landlord’s broker, 2% of aggregate triple net base rental amounts for only
the 64-month extension of the term pursuant to this Amendment) involved in procuring
this Amendment and the unamortized balance of the cost of Landlord’s Work. Upon
Tenant’s request, Landlord shall promptly provide Tenant with reasonable evidence
and documentation regarding such costs (including without limitation proof of
payment and a copy of commission agreements). Provided that Tenant has exercised
its termination right pursuant to this Paragraph, on the Termination Date, the Lease
shall terminate and Landlord and Tenant shall have no further obligations to each
other with respect to obligations first accruing, occurring or arising after the
Termination Date. Notwithstanding the above, within 30 days after the completion of
the Tenant Improvements, Landlord shall provide Tenant only the applicable leasing
costs associated with Tenant’s extension which relate to commissions paid or payable
and Tenant Improvements paid or payable.
	 
	 	G.	 	Satellite / Microwave -
	 
	 	 	 	Landlord shall grant Tenant the right to install on the Building, Satellite and/or
Microwave Antennae(s) for the reception and transmission of electromagnetic signals.
Tenant shall be responsible for the cost of installation, maintenance and removal
of such equipment including all applicable repairs to the roof membrane caused by
Tenant’s use and installation or removal of such rooftop equipment. Landlord shall
have the right to approve the location, method of installation, size and shielding
requirements. Landlord’s approval shall not be unreasonably withheld, or delayed.
Such use shall be subject to all required government approvals and shall not
interfere with Building systems and/or any existing Tenant rooftop communications
equipment. Landlord shall cause all parties installing rooftop communications
equipment after Tenant’s installation thereof to install, calibrate and otherwise
use such equipment in such a manner so that it does not cause any interference with
Tenant’s rooftop communications equipment.
	 
	 	H.	 	Miscellaneous






	 	1.	 	Tenant and Landlord hereby confirm and ratify all of the terms
and conditions of the Lease, except as modified above, and each affirms to the
other that neither has any claims, notices of breaches or rights of set-off
against the other and that in the event they do, they hereby knowingly waive
any such claim, breach or right of set-off. All modifications shall be as of
June 15, 2006.




 









 






	 	2.	 	This agreement is made knowingly and with due consultation with
such advisors, counselors and consultants as Tenant and Landlord shall each
find necessary.
	 
	 	3.	 	If the same are out of compliance and if required by
governmental authority, Landlord shall cause the Common Areas to comply with
all applicable laws, codes, regulations and legal requirements, including
without limitation the Americans with Disabilities Act and related state and
local regulations (collectively, “Applicable Laws”), as the same may change
from time to time. The cost of such compliance shall constitute Common Area
Costs. If Common Area Costs constitute capital expenses or improvements (as
determined pursuant to GAAP), then, such capital expenses or improvements shall
be amortized over their useful life with an interest factor equal to the prime
rate published from time to time by the Wall Street Journal plus one percent
(1%). If, as of the Commencement Date, any condition in the Common Areas
failed to comply with Applicable Laws in effect as of the Commencement Date,
then the costs incurred to cure such condition shall be at Landlord’s sole cost
and expense. Both Tenant and Landlord represent and warrant to the other
that, as of the date of this amendment, neither party has knowledge that the
Common Areas fail to comply with Applicable Laws. Landlord shall
replace up to 12, at its sole cost and expense, damaged or discolored ceiling
tiles in the Existing Premises with ceiling tiles of the same size, color,
texture and pattern.
	 
	 	4.	 	Landlord represents and warrants to Tenant that Landlord has
obtained all consents (including without limitation lender consents) required
as a condition to Landlord’s execution of this Amendment and performance of its
obligations under the Lease, as amended by this Amendment. Landlord further
represents and warrants to Tenant that Landlord’s execution of this Amendment
shall not constitute a breach under any agreement to which Landlord is a party.
	 
	 	5.	 	Except as amended by this Amendment, the Lease shall remain in
full force and effect in accordance with its items and provisions. Unless
otherwise defined in this Amendment, all defined terms used in this Amendment
shall have the same meaning as attributed to such terms in the Lease.





     Tenant and Landlord confirm and ratify all of the terms and conditions of the Lease, except as
modified by this Amendment. To the best of Tenant’s knowledge, without inquiry or investigation,
(i) Landlord is not in default in the performance of its obligations under the Lease, and (ii) no
condition currently exists which, with the giving of notice and the expiration of time, would
constitute a default by Landlord under the Lease. To the best of Landlord’s knowledge, without
inquiry or investigation, (i) Tenant is not in default in the performance of its obligations under
the Lease, and (ii) no condition currently exists which, with the giving of notice and the
expiration of time, would constitute a default by Tenant under the Lease.



 









 





[Signature Page Follows]




 









 






     IN WITNESS WHEREOF, the parties herein have hereunto set their hands the day and year first
above written.



	 	 	 	 	 	 	 	 	 
	Emulex Design & Manufacturing

Corporation, a Delaware Corporation	 	Brass Creekside, L.P.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ James McCluney
	 	 	 	By:
	 	/s/ James Stewart
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Its:

	 	President and COO
	 	 	 	Its:
	 	Agent
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date

	 	May 25, 2006
	 	 	 	Date
	 	June 2, 2006