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Exhibit 10.2
LEASE ASSIGNMENT AGREEMENT
This Lease Assignment Agreement ("Lease Assignment") is entered into on
this 25th day of June, 1999 by and between Cohu, Inc., a Delaware corporation
("Assignee"), Cubic Defense Systems, Inc. ("Assignor"), and Xxxxxx X. Xxxxx and
Xxxxx X. Xxxxx (collectively "Lessor").
WHEREAS, subject to the terms and conditions herein, Assignor desires to
assign, and Assignee desires to accept that certain American Industrial Real
Estate Association Standard Industrial/Commercial Single-Tenant Lease-Gross
("Lease Agreement"), attached hereto as Exhibit A, dated June 26, 1995, by and
between Assignor, as Lessee and Lessor; and
WHEREAS, Lessor consents to such assignment;
NOW THEREFORE, Assignee, Assignor and Lessor agree as follows:
1. Assignment. Subject to the terms and conditions herein, Assignor
hereby assigns and Assignee hereby accepts the assignment of the Lease
Agreement, including, without limitation, the right to exercise the Option.
2. Lease Provisions Incorporated.
2.1. Except as expressly set forth herein, Assignee shall assume all
of the obligations, liabilities, and covenants as of the Effective
Date.
2.2. "Effective Date" shall mean July 1, 1999.
2.3. Assignee's obligation to pay Basic Rent under the Lease Agreement
shall commence effective November 15, 1999 (pro-rated for the month of
November, 1999). Basic Rent, and all other payment obligations of
Assignee pursuant to the Lease Agreement shall be paid to Lessor as
set forth in the Lease Agreement.
3. Indemnity. Assignee shall defend, indemnify and/or hold harmless
Assignor from and against all liabilities, claims, suits, proceedings, appeals,
damages, demands, and allegations (collectively "Claims") pertaining to:
Assignee's use and/or occupancy of the Premises; Lessor's Claims, and breaches
of the Lease Agreement attributable to Assignee; and all conduct, malfeasance,
omissions and commissions of Assignee and its agents, employees, contractors,
and invitees.
4. Security Deposit. Assignee shall reimburse to Assignor Assignor's
security deposit of Thirty-Seven Thousand Nine Hundred and Eighty-Five Dollars
($37,985). Lessor, in turn, shall transfer Assignor's security deposit of
Thirty-Seven Thousand Nine Hundred and Eighty-Five Dollars ($37,985) to
Assignee's account. Landlord hereby confirms that there are no outstanding
liabilities applicable to the Security Deposit.
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5. Conditions Precedent. The following are conditions precedent to this
Lease Assignment:
5.1. This Lease Assignment is conditioned upon the written consent of
Lessor pursuant to the Lease Agreement.
5.2. This Lease Assignment is conditioned upon Assignee's physical
inspection of the Premises solely to verify that the building systems
are in good working order.
5.3. This Lease Assignment is conditioned upon receipt of and approval
by Assignor of Assignee's written intended use and planned
modifications, if any, of and to the Premises. Assignee covenants to
Assignor to abide by such written intended use and planned
modifications, if any.
6. Limited Release of Lessor. Lessor shall not, by reason of this Lease
Assignment, nor by reason of collection of the rents from Assignee, be deemed
liable to Assignee for any failure of Assignor to perform and comply with any of
Assignor's obligations to Assignee under this Lease Assignment.
7. Lessor Consent/Limited Waiver/Release by Lessor.
7.1. Lessor hereby consents to this Lease Assignment.
7.2. Lessor hereby waives their right, pursuant to Article 12.2(g) of
the Lease Agreement, to require that the Security Deposit be increased
to an amount equal to six (6) times the monthly Base Rent.
7.3. Lessor hereby waives their right, pursuant to Article 12.2(h) of
the Lease Agreement, to require the amount and adjustment structure of
the rent be adjusted.
7.4. Should Assignee and Lessor agree to a lease term beyond the
Original Term (which would include, without limitation, exercise of
the Option), then Lessor hereby releases Assignor, effective at such
time, from all Claims pertaining to the Premises, known and unknown,
including without limitation, Assignor's and Assignee's use and
occupancy of the Premises, and in that regard, Lessor hereby waives
all of their rights afforded to them under California Civil Code
Section 1542, which provides:
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Section 1542. CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A
general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
8. Assignor's Warranties and Covenants. In addition to other warranties and
covenants which may be set forth herein, Assignor warrants and covenants as
follows:
8.1. Assignor warrants that it is the Lessee under the Lease
Agreement, that it is in compliance with all of its obligations under
the Lease Agreement, and that it is not in default with respect to the
Lease Agreement.
8.2. Assignor covenants that, provided that Assignee discharges all of
its obligations hereunder and pursuant to the Lease Agreement, that
Assignor will take no action which would interfere with or terminate
Assignee's rights under the Lease Agreement.
9. Third-Party Beneficiary. Lessor shall be a third-party beneficiary under
this Lease Assignment. There shall be no other third-party beneficiaries under
this Lease Assignment.
10. Construction. Unless otherwise expressly defined in this Lease
Assignment, all terms herein shall have the same meaning as the terms have in
the Lease Agreement. This Lease Assignment shall not be construed as if it had
been prepared by one of the parties, but rather as if all parties had prepared
the same. All recitals are incorporated into this Lease Assignment by reference.
The parties hereby waive California Civil Code Section 1654 which states "In
cases of uncertainty not removed by the preceding rules, the language of a
contract should be interpreted most strongly against the party who causes the
uncertainty to exist."
11. Brokers. The parties warrant to each other that CB Xxxxxxx Xxxxx is the
sole broker in this Lease Assignment, representing both parties. Both parties
warrant that no other broker has been engaged on their behalf with respect to
this Lease Assignment.
12. General Provisions.
12.1. Time is of the Essence. Time is of the essence of this Lease
Assignment and each and every part hereof.
12.2. Notices. Notices, requests, demands and other communications
required or permitted to be given under this Lease Assignment shall be
in writing and shall be served personally or shall be delivered to the
party to whom notice is to be
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given, by reputable overnight mail equivalent carrier or by first
class mail, properly posted and addressed as follows:
To Assignor:
Cubic Defense Systems, Inc.
Attention: Xxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax: 000-000-0000
With a copy to:
Legal Department
Cubic
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax: 000-000-0000
To Assignee:
Cohu, Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Attention: Xxxx Xxxxx
12.3. Attorneys' Fees. In the event of any action at law or in equity
between the parties hereto to enforce any of the provisions hereof,
the unsuccessful party or parties to such litigation including any
appeals, shall pay to the successful party or parties all costs and
expenses, including reasonable attorneys' fees, incurred therein by
such successful party or parties; and if such successful party or
parties shall recover judgment in any such action or proceeding, such
costs, expenses and attorneys' fees may be included in and as part of
such judgment. The successful party shall be the party who is entitled
to recover its costs of suit, whether or not the suit proceeds to
final judgment.
12.4. Governing Law and Venue. This Lease Assignment shall be
construed in accordance with the laws of the State of California. Any
action brought at law or in equity relating to or in connection with
this Lease Assignment must be maintained in San Diego, California.
12.5. Integration, Amendment. This Lease Assignment constitutes the
full and complete assignment and understanding between the parties
hereto and shall
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supersede any and all prior and contemporaneous written and oral
agreements concerning the subject matter contained herein. This Lease
Assignment and any portions thereof may be modified, amended or waived
only by a written instrument executed by the party against whom such
amendment, modification or waiver shall be enforced.
12.6. Headings. The titles or headings of the various paragraphs
hereof are intended solely for convenience or reference and are not
intended and shall not be deemed to modify or explain any of the
provisions of this Lease Assignment.
12.7. Severability. If any material condition or provision herein
contained is held to be invalid, void or unenforceable by a final
judgment of any court of competent jurisdiction, then the remaining
provisions of this Lease Assignment remain in full force and effect.
12.8. Waiver. No waiver by any party hereto of any breach or default
shall be considered to be a waiver of any other breach or default. The
waiver of any condition shall not constitute a waiver of any breach of
default. The waiver of any condition shall not constitute a waiver of
any breach or default with respect to any other condition,
representation or warranty.
12.9. Relationship Between the Parties. The parties agree that the
relationship between them shall not be construed as a partner, agency,
joint venture, alter ego, employee or employer.
12.10. Further Instruments and Action. The parties agree to execute
all instruments and documents and to take all actions as may be
required in order to consummate the transaction contemplated by this
Lease Assignment.
12.11. Assignment. Assignor may assign its rights and obligations
under the Lease Assignment to its parent company and/or subsidiaries
thereof, and/or to any entity which acquires more than fifty per cent
of Assignor. Other than the foregoing, no party may assign any portion
of this Lease Assignment without the express written consent of the
other party.
12.12. Authorization, Execution. Assignee is a Corporation duly
organized, existing, and in good standing under the laws of the State
of Delaware. The execution and delivery of this Lease Assignment and
consummation of this transaction by Assignee have been duly
authorized, and no further corporate authorization is necessary on the
part of Assignee. This Lease Assignment was executed in San Diego,
California, U.S.A. The persons signing this Lease Assignment represent
that they are authorized to sign this Lease Assignment.
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12.13. Execution in Counterparts, by Facsimile. This Lease Assignment
may be executed in counterparts (i.e. the signatures may be on
separate pages) and by facsimile transmission.
13. Certificate of Incumbency. The parties shall provide a Certificate of
Incumbency showing the title of signers of this Lease Assignment.
14. Hazardous Substance. In addition to the obligations of the Lessor set
forth in Paragraph 6.2 of the Addendum to the Lease Agreement, Assignor shall
indemnify, defend and hold harmless Assignee, its directors, officers, agents
and employees and the Premises harmless from and against any and all loss,
damages, liabilities, judgment, costs, claims, liens, expenses, penalties and
attorney's and consultants' fees arising out of or involving and Hazardous
Substance or contamination of soil, groundwater or any other material present on
the premises caused by Assignor during the period from June 26, 1995 through
July 1, 1999, which is the period the Premises have been under the control of
Assignor.
15. Phase I Environmental Report. Assignee shall have the right at its own
expense to obtain a Phase I Environmental Report on the Premises by August 1,
1999. In the event that Assignee shall obtain such a Report and the Report
should specify any environmental issues which cannot be remedied to the
satisfaction of Assignee, this Assignment shall be terminated immediately upon
notice to Assignor and of no further force or effect. This Paragraph shall be
void if Assignee to provide such notice to Assignor on or before August 1, 1999.
ASSIGNOR
Cubic Defense Systems, Inc.
BY: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Vice President & Treasurer
DATE: June 24, 1999
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ASSIGNEE
COHU, INC.
BY: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
[Print Name]
TITLE: Chief Executive Officer
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DATE: June 24, 1999
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Lessor hereby consents to the within Assignment.
LESSOR
BY: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
DATE: June 24, 1999
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BY: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
DATE: June 24, 1999
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