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EXHIBIT 10.2
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "AGREEMENT") is made this ___ day of
July, 1999 by and between NetCom System, Inc., a Delaware corporation
("Indemnitee"), and MRV Communications, Inc., a Delaware corporation
("Indemnitor").
RECITALS
This Agreement is made with reference to the following facts and
objectives:
X. Xxxxxxxx Industrial Complex, a California general partnership
("Landlord"), and Indemnitee entered into a written lease dated March 28, 1996,
as amended by that certain First Amendment to Standard Industrial/Commercial
Lease and that certain Second Amendment to Lease dated March 26, 1997 (as
amended, the "Original Lease"), in which Landlord leased to Indemnitee, and
Indemnitee leased from Landlord, those certain Premises described in the
original lease (the "Premises") located at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx.
B. Landlord and Indemnitee desire to terminate the Original Lease.
C. Landlord and Indemnitor desire to enter into a new lease (the "New
Lease") whereby Landlord will lease to Indemnitor, and Indemnitor will lease
from Landlord, the Premises.
D. Landlord, in order for it to enter into the New Lease, requires that
Indemnitee provide Landlord with a corporate guaranty (the "Guaranty") covering
Indemnitor's rent obligations under the New Lease.
AGREEMENT
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Indemnity. In order to induce Indemnitee to execute and deliver the
Guaranty to Landlord, Indemnitor shall indemnify, defend, protect and hold
Indemnitee, its shareholders, officers and agents harmless from and against any
and all claims, liabilities, losses, costs (including, without limitation,
reasonable attorneys' fees) and damages arising from or in any manner related to
Indemnitee's obligations under the Guaranty. The provisions of this paragraph
shall survive the expiration or termination of the New Lease and this Agreement.
2. Obligation to Perform. Indemnitor covenants, as a direct obligation
to Indemnitee, that Indemnitor will timely pay and perform all of its
obligations under the New Lease.
3. No Amendments. During the term of the Guaranty, as defined in Section
2 of the Guaranty (the "Guaranty Term"), Indemnitor shall not amend or modify
the New Lease, exercise any expansion or extension rights or do anything that
could increase Indemnitee's obligations or decrease Indemnitee's rights under
the Guarantee without the prior written consent of Indemnitor.
4. Sublease/Assignment. During the Guaranty Term, Indemnitor shall not
sublease any portion of the Premises or assign the New Lease voluntarily, by
operation of law or otherwise, where Landlord's consent to such sublease or
assignment is required under the New Lease, without the prior written consent of
Indemnitee and Landlord. Indemnitee's consent shall not be unreasonably withheld
or
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delayed. In the event Indemnitee fails to consent or reasonably deny consent
within thirty (30) days after receiving Indemnitor's written request for such
consent, Indemnitee shall be deemed to have given its consent to such assignment
or sublease.
5. Right to Cure. Indemnitor shall provide Indemnitee with copies of all
notices given by Landlord as and when received by Indemnitor. If Indemnitor
fails to pay any sum of money to Landlord, then Indemnitee may, but shall not be
obligated to, make such payment after giving Indemnitee three (3) days prior
written notice of such payment. All such sums paid shall be paid by Indemnitor
to Indemnitee on demand and all amounts not paid within ten (10) days after
demand by Indemnitee shall accrue interest at ten percent (10%) per annum from
the date of the expenditure until repaid.
6. Insurance. Indemnitor shall include Indemnitee as an additional
insured on all insurance policies it is required to maintain under the New Lease
and shall provide Indemnitee with all required certificates under the New Lease
at the same time and in the same manner such certificates are provided to
Landlord.
7. Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. If
either party brings any action or legal proceeding with respect to this
Agreement, the prevailing party in such action shall be entitled to recover its
reasonable attorney's fees and costs. If any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. Captions
are inserted for convenience only and will not affect the construction hereof.
This Agreement may be executed in one or more counterparts, each of which shall
be an original, but all of which, taken together, shall constitute one and the
same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
dated and effective as of the date first written above.
INDEMNITEE INDEMNITOR
NETCOM SYSTEMS, INC. MRV COMMUNICATIONS, INC.
By: /s/ XXXXXX XXXXX By: /s/ XX. XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxx Xx. Xxxxxx Xxxxxxxx
Its: V.P. Operations Chairman of the Board
By: /s/ XXXXXXX XXXXXX By: /s/ DR. ZEEV RAV-NOY
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Name: Xxxxxxx Xxxxxx Dr. Xxx Rav-Noy,
Its: CFO, VP Chief Financial Officer
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