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EXHIBIT 10.15
FIRST AMENDMENT TO LEASE
BETWEEN
SAN DIEGO TECH CENTER, LLC
AND
OPTICAL MICRO MACHINES
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease (this "Amendment"), entered into as of
January 18, 1999, but effective as of August 31, 1999 ("Effective Date"), by and
between SAN DIEGO TECH CENTER, LLC, a Delaware limited liability company
("Landlord"), and OPTICAL MICRO MACHINES, a California corporation ("Tenant"),
modifies that certain Office Building Lease dated as of March 25, 1999, by and
between Landlord and Tenant (the "Lease"). All capitalized terms used in this
Amendment and not defined shall have the meanings set forth in the Lease.
The parties hereto desire that the Lease be modified to provide for,
among other things, expansion of the Premises.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree to
the above recitals and as follows:
1. Premises. Tenant currently leases approximately 17,463 rentable
square feet in the Building (the "Existing Premises"). The Lease is hereby
amended to provide for a new definition of the Premises. Effective as of the
Additional Premises Commencement Date (as defined in Section 2 below), Tenant
shall continue to lease the Existing Premises and shall commence to lease
additional premises in the Building consisting of approximately 1,362 additional
rentable square feet (the "First Expansion Space") and approximately 2,387
additional rentable square feet (the "Second Expansion Space"). The First
Expansion Space and Second Expansion Space are collectively referred to herein
as the "Additional Premises." The Existing Premises and the Additional Premises
consist of a total of approximately 21,212 rentable square feet, which shall
hereafter be referred to as the "Premises". The Additional Premises are shown on
Exhibit A attached hereto and incorporated herein by this reference.
2. Additional Premises Term. The term of the Lease for the Additional
Premises shall commence upon the Effective Date of this Amendment (the
"Additional Premises Commencement Date") and shall be coterminous with the Term
of the Lease for the Existing Premises which expires May 31, 2004. The extension
option described in Article 32 of the Lease shall also apply to the Additional
Premises.
3. Rent and Building/Project Expenses.
3.1 First Expansion Space. Effective as of September 1, 1999,
Tenant shall commence to pay Rent and, as Additional Charges, Tenant's Building
Share of Building Expenses and Tenant's Project Share of Project Expenses for
the First Expansion Space. Rent for the First Expansion Space shall be an amount
equal to the number of rentable square feet in the First Expansion Space
multiplied by the Rent per rentable square foot then payable for the Existing
Premises (i.e., $1.28 per rentable square foot per month), for a total of
$1,743.36 per month for the First Expansion Space. The Rent for the First
Expansion Space shall be increased by four percent (4%) every one (1) year
anniversary after the Commencement Date for the Existing Premises on a
cumulative basis (i.e., the first such Rent increase for the First Expansion
Space shall be effective June 1, 2000).
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3.2 Second Expansion Space. Effective January 1, 2000, Tenant
shall commence to pay, as Additional Charges, Tenant's Building Share of
Building Expenses and Tenant's Project Share of Project Expenses for the Second
Expansion Space. Effective on March 1, 2000, Tenant shall commence to pay Rent
for the Second Expansion Space in an amount equal to the number of rentable
square feet in the Second Expansion Space multiplied by the Rent per rentable
square foot then payable for the Existing Premises (i.e., $1.28 per rentable
square foot per month), for a total of $3,055.36 per month for the Second
Expansion Space. The Rent for the Second Expansion Space shall be increased by
four percent (4%) every one (1) year anniversary after the Commencement Date for
the Existing Premises on a cumulative basis (i.e., the first such Rent increase
for the Second Expansion Space shall be effective June 1, 2000).
Rent and Additional Charges described in this Section 3 for the
Additional Premises shall be payable at the same time and in the same manner as
the Rent and Additional Charges for the Existing Premises, and shall be in
addition to all other Rent, Additional Charges, and other amounts payable by
Tenant under the Lease. Accordingly, as of the Additional Premises Commencement
Date and as applicable to the Additional Premises, Tenant shall pay those
utilities and services required to be paid directly by Tenant and Tenant's
reimbursement of electrical house meters as set forth in Section 19.1 of the
Lease.
4. Tenant's Building Share/Tenant's Project Share. Effective as of
September 1, 1999, Tenant's Building Share shall be increased to 8.29%
(calculated by dividing the sum of the Rentable Area of the Existing Premises
plus the Rentable Area of the First Expansion Space minus the Rentable Area of
the Must Take Space (for a total of 12,825) by the Building Rentable Area
(154,773)) and Tenant's Project Share shall be increased to 2.03% (calculated by
dividing the sum of the Rentable Area of the Existing Premises plus the Rentable
Area of the First Expansion Space minus the Rentable Area of the Must Take Space
(for a total of 12,825) by the Rentable Area of the Project (632,809)) to
reflect the additional rentable square feet in the First Expansion Space.
Effective as of January 1, 2000, Tenant's Building Share shall be increased to
13.71% (calculated by dividing the Rentable Area of the Premises (21,212) by the
Rentable Area of the Building (154,773)) and Tenant's Project Share shall be
increased to 3.35% (calculated by dividing the Rentable Area of the Premises
(21,212) by the Rentable Area of the Project (632,809)) to reflect the
additional rentable square feet in the Second Expansion Space and in the Must
Take Space as set forth in the Lease.
5. Acceptance of Additional Premises "As Is". Upon taking possession of
the Additional Premises, Tenant shall be deemed to have accepted the same in its
"as is" condition as of the Effective Date of this Amendment without any
demolition or other work being done, and to have acknowledged that the same
fully complies with Landlord's obligations under the Lease and this Amendment.
6. Additional Tenant Improvements for Premises. Effective as of the
Additional Premises Commencement Date, Tenant shall have the right to receive an
additional allowance from Landlord not to exceed Twenty-Three Thousand Four
Hundred Thirty-One and 25/100 Dollars ($23,431.25) (i.e., $6.25 per rentable
square foot of the Additional Premises) which shall be considered part of the
T.I. Allowance for construction of additional Tenant Improvements in the
Premises. In addition, at Tenant's request, Tenant shall have the right to
receive an additional allowance from Landlord not to exceed Eleven Thousand Two
Hundred Forty-Seven Dollars ($11,247.00) (i.e., $3.00 per rentable square foot
of the Additional Premises) which shall be considered part of the
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T.I. Allowance for construction of additional Tenant Improvements in the
Premises; provided, that any such amounts paid by Landlord shall be repaid by
Tenant, amortized over the Initial Term of the Lease plus 11% interest per
annum, in equal monthly installments made at the same time and in the same
manner as Rent. The disbursement of the T.I. Allowance and Tenant's construction
of such additional Tenant Improvements shall be in accordance with and subject
to the terms and conditions of Section 7.1 and Article 31 of the Lease. Landlord
shall cause to be constructed a demising wall between the Premises and certain
adjacent premises as shown on Exhibit A attached hereto, provided that fifty
percent (50%) of the total reasonable, actual costs of such construction shall
be paid by Tenant (which costs may be paid out of the T.I. Allowance).
7. Brokers. Except for The Xxxxxx Xxxxxx Group, Inc. which shall be paid
a commission by Landlord pursuant to Section 30.12 of the Lease, Tenant warrants
that it has had no dealings with any real estate broker or agent in connection
with this Amendment, and that Tenant knows of no real estate broker or agent who
is or might be entitled to a commission in connection with this Amendment. If
Tenant has dealt with any other person or real estate broker with respect to
leasing or renting space in the Building, except the broker representing
Landlord, Tenant shall be solely responsible for the payment of any fee due such
person or broker, and Tenant shall defend, indemnify, and hold Landlord
harmless, against any liability in respect thereto, including attorneys' fees
and costs.
8. Miscellaneous.
8.1 Further Assurances. Each of the parties hereto agrees to
execute all documents and instruments and to take all other actions as may
specifically be provided for herein or in the Lease as may be required in order
to consummate the purposes of this Amendment.
8.2 Integration; Interpretation. This Amendment in combination
with the Lease contains or expressly incorporates by reference the entire
agreement of the parties with respect to the matters contemplated herein and
supersedes all prior negotiations. Except as specifically set forth herein, the
Lease remains unmodified and in full force and effect.
8.3 Construction. The parties acknowledge that each party and its
counsel have reviewed this Amendment. The parties agree that the rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Amendment.
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8.4 No Defaults. Tenant hereby represents and warrants that it is
not in default under the Lease nor do any facts or circumstances exist which
with the passage of time or the giving of notice, or both, could ripen into a
default.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above set forth.
LANDLORD: TENANT:
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SAN DIEGO TECH CENTER, LLC, OPTICAL MICRO MACHINES,
a Delaware limited liability company a California corporation
By: San Diego Realty Fund 5, LLC,
a California limited liability By /s/ Hus Tigli
company, Its Administrative
Member Hus Tigli President & CEO
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[Printed Name and Title]
By /s/ Signature Illegible By /s/ Xxxxxxx X. Xxxxx
Its Xxxxxxx Xxxxx, Asst. Corp. Secretary
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Manager [Printed Name and Title]
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EXHIBIT A
[EXHIBIT DEPICTS ADDITIONAL PREMISES LEASED BY TENANT]
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