exv10w36



 





Exhibit 10.36




FIRST AMENDMENT TO LEASE AGREEMENT (BUILDING 90) 

AND SERVICE LEVEL AGREEMENT




          THIS FIRST AMENDMENT TO LEASE AGREEMENT (BUILDING 90) AND SERVICE LEVEL AGREEMENT (this
“Amendment”) is entered into this 10th day of January, 2007 by and between AVAGO TECHNOLOGIES U.S.
INC., a Delaware corporation (“Avago”), and LUMILEDS LIGHTING B.V., a Netherlands corporation
(“Lumileds”).




RECITALS:




          WHEREAS, Agilent Technologies, Inc., a Delaware corporation (“Agilent”), as Landlord, and
Avago, as Tenant, entered into that certain Lease Agreement (Building 90) dated December 1, 2005
(the “Original Lease”), pursuant to which Tenant leased from Landlord portions of the property
commonly known as Building 90 and located at 350/370 W. Trimble Road, San Jose, California (the
“Premises”) as more particularly described in the Original Lease. Landlord’s interest in the
Original Lease was subsequently assigned by Agilent to Lumileds (Lumileds shall also be referred to
herein as “Landlord”).




          WHEREAS, Agilent, as the Company, Lumileds, as the Contractor, and Avago entered into that
certain Service Level Agreement (the “SLA”) dated as of November 1, 2005, pursuant to which Agilent
engaged Lumileds to provide services to the Premises as more particularly described in the SLA.
Agilent’s interest in the SLA was assigned to Avago (Avago shall also be referred to as the
“Company” and Lumileds shall also be referred to as the “Contractor”).




          WHEREAS, Avago and Lumileds desire to amend the Original Lease and the SLA as set forth
herein.




          NOW, THEREFORE, for and in consideration of the recitals herein above set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Agilent and Lumileds hereby agree as follows:





	1.	 	Terms. Unless otherwise defined in this Amendment to the contrary, all
capitalized terms have the meaning ascribed to them in the Original Lease and SLA.
	 
	2.	 	Extension of Term. 






	 	a.	 	  Section 2.1 of the Original Lease is hereby deleted in its entirety and
is replaced with the following: “Landlord and Tenant hereby agree to extend the Lease Term
for a period of an additional seven (7) years from December 1, 2008 through November 30,
2015. For purposes of the Lease, the period from December 1, 2008 through November 30,
2015 is referred to herein as the “Extended Term”.”
	 
	 	b.	 	The definition of “Expiration Date” in Section 1.15 of the Original Lease is
hereby deleted, and replaced by the following: ““Expiration Date” means the earlier of
November 30, 2015 or the date that this Lease is sooner terminated pursuant to its terms.”
	 
	 	c.	 	The definition of “Tenant’s Share” in the Lease Summary (at the beginning of the
Original Lease) and Section 1.4.4 of the Original Lease is hereby amended by adding the
following as a new sentence at the end of the current definition in the Lease Summary:
“During the Extended Term, Tenant’s Share shall mean 29.62% for the Project should Tenant
exercise its right to take the Exhibit 3b Space defined below, and 28.42% if Tenant does
not exercise such right.” and the following sentence at the end of Section 1.4.4:
““Tenant’s Share” in connection with the Operating Expenses for the Project means the
percentage obtained by dividing the gross rentable square footage of the Premises (134,202
sq. ft. if Tenant exercises its right to take the Exhibit 3b Space, or 128,790 if




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	 	 	 	Tenant does not exercise such right) by the gross rentable square footage of the Project
(453,107 sq. ft.), which is deemed to be 29.62% if Tenant exercises its right to take the
Exhibit 3b Space, or 28.42% if Tenant does not exercise such right .”






	3.	 	Square Footage. The definition of “Premises” in the Lease Summary (at the
beginning of the Original Lease) and Section 1.29 of the Original Lease are hereby amended by
adding the following as a new sentence at the end of the current definition: “During the
Extended Term, should Tenant exercise its right to take the Exhibit 3b Space, the Premises
shall be deemed to contain one hundred thirty-four thousand two hundred two (134,202) square
feet of space, including 4684 square feet of basement currently used for data center purposes,
as more particularly described on Exhibit 3a attached hereto and made a part hereof. If
Tenant does not exercise such right, the Premises shall be deemed to contain one hundred
twenty-eight thousand seven hundred ninety (128,790) square feet of space, including 4684
square feet of basement currently used for data center purposes, also as more particularly
described on Exhibit 3a attached hereto and made a part hereof.”
	 
	4.	 	Relocation and Restoration of Tenant. The Original Lease is hereby amended by
inserting the following as a new Section 2.2: “Relocation and Restoration of Tenant. Prior to
the commencement of the Extended Term, Tenant shall vacate approximately 10,795 square feet of
office space and 5,412 square feet of laboratory space on the ground floor as more
specifically designated and set forth on Exhibit 3b hereto (the “Exhibit 3b Space”). Tenant
shall surrender and vacate such space in accordance with the applicable provisions of the
Lease, but shall have no restoration or “put back” obligations with respect to such space.
Tenant shall have the right to require Landlord to perform, at Landlord’s cost, the
restoration and relocation described below if, on or prior to November 30, 2007, Tenant
notifies Landlord that it is exercising its right to require Landlord to perform such
restoration and relocation. If Tenant timely exercises such right, Landlord shall, at
Landlord’s cost, relocate Tenant’s existing offices from the approximately 10,795 square feet
of office space surrendered to other space within the remaining Premises Tenant designates,
and relocate Tenant’s existing lab equipment and utilities from the 5,412 square feet of
laboratory space in a portion of the Exhibit 3b Space and restore it in the replacement
laboratory space set forth on Exhibit 3b (the “Exhibit 3b Space”). The relocation of the
office space shall consist of Landlord moving, reconfiguring, recabling and making other
improvements sufficient to reasonably reproduce in all materials respects the surrendered
offices at the location Tenant identifies. The relocation and restoration into the Exhibit 3b
Space shall consist of Landlord demising and building out the Exhibit 3b Space with equivalent
layout and utility capacity and, in all other material respects, comparable to what is
currently set forth in the to be vacated laboratory space which comprises a portion of the
Exhibit 3b Space. Landlord may not pass through or amortize any costs incurred under this
Section 2.2 as an Operating Expense or otherwise.”
	 
	5.	 	Rent. The following is hereby inserted as a new Section 3.1(A) of the
Original Lease: “Commencing on December 1, 2008 and continuing on the first day of each month
throughout the Extended Term as set forth and described below, Tenant shall pay Landlord
without offset, deduction or prior notice, as Monthly Base Rent for the Premises, the amount
obtained by multiplying the dollar amount set forth for the applicable month during the
Extended Term by the square footage in the Premises:





	 	 	 
	Month of Extended Term	 	Amount per Square Foot Per Month
	1-12

	 	$0.725 
	13-24

	 	$0.761 
	25-36

	 	$0.799 
	37-48

	 	$0.833 
	49-60

	 	$0.881 
	61-72

	 	$0.925 
	73-84

	 	$0.972 







	 	 	During the Extended Term, the Monthly Base Rent shall include all Real Property Taxes
allocable to the Premises. All Real Property Taxes associated with the Project and the
Premises shall be for Landlord’s sole account and not passed through to Tenant as an
Operating Expense, Additional Rent or otherwise.





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	6.	 	Tenant Improvements. 






	 	a.	 	  The Original Lease is hereby amended by inserting the following as a new
Section 5.2(A): “Contemplated Extended Term Improvements. Notwithstanding anything herein
to the contrary, in satisfaction of the requirements of Section 5.2 hereof, Landlord
acknowledges and approves, in concept (and subject to the receipt and reasonable approval
of plans and the other requirements set forth and described in the Original Lease) Tenant’s
contemplated improvements to the Premises during the Extended Term. These contemplated
improvements are: upgrade and expansion of the main lobby; installation of up to seven (7)
hard-walled offices and six (6) additional conference rooms; and upgrades to existing
bathrooms. Landlord reserves the right to review and approve the plans and specifications
for such improvements as more particularly set forth in the Lease, such approval not to be
unreasonably withheld or delayed. Except as otherwise set forth explicitly herein, in
connection with the performance of any Leasehold Improvement, Tenant shall comply with the
applicable provisions of the Lease. Notwithstanding anything herein to the contrary,
Tenant shall not be required to remove from the Premises at the end of the Extended Term or
otherwise the specifically referenced Leasehold Improvements described in this Section
5.2(A) and such Leasehold Improvements shall become the property of Landlord on the
Expiration Date. Notwithstanding anything herein to the contrary, Landlord agrees not to
charge Tenant supervisory fees with respect to the specifically referenced Leasehold
Improvements described in this Section 5.2(A) or the items set forth in Section 5.5. This
Section 5.2(A) shall not be deemed to affect the rights of either Landlord or Tenant,
including Landlord’s right to request restoration of or to charge supervisory fees, with
respect to any Leasehold Improvements other than those specifically contemplated by this
Section 5.2(A) or Section 5.5.”
	 
	 	b.	 	The Original Lease is hereby further amended by inserting the following as a new
Section 5.5: “Cafeteria and Fitness Center. Landlord and Tenant shall upgrade the common
cafeteria and to construct a joint fitness center, with the completion of such improvements
to be pursuant to mutually agreed plans (with neither party unreasonably withholding its
approval) no later than the date that is one year from the date hereof. Landlord shall
perform and pay for the cost of such improvements, and shall amortize fifty percent (50%)
of such costs over the remaining Lease Term and Extended Term, which amortized amounts
shall be charged monthly to the Tenant as Additional Rent. The remaining fifty percent
(50%) shall be Landlord’s expense, and shall not be charged to Tenant as Operating Expense
or otherwise. So long as Landlord continues to maintain the Cafeteria and fitness center,
and subject to the other terms and conditions of this Lease and the rules applicable to
those facilities, and provided that no default has occurred and remain uncured beyond the
expiration of any applicable notice or cure periods, Tenant’s employees shall be permitted
nonexclusive access to the Cafeteria and fitness center, in conjunction with other tenants
and occupants of the Project and on a nondiscriminatory-pricing basis with such other
tenants and occupants. If after such improvements are completed Landlord thereafter closes
either the Cafeteria or the fitness center for a period longer than 60 days, Tenant shall
be relieved of the obligation to pay the associated amortized improvement costs for such
period(s).





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	 	c.	 	The Original Lease is hereby further amended by inserting the following as a new
Section 5.6: “Earthquake Retrofitting. In the event Landlord performs any work at the
Premises or the Project for the purpose of earthquake retrofitting (it being understood and
agreed that Landlord shall have no obligation to perform any such work), such work shall be
at Landlord’s sole cost and expense, and Landlord shall have no right to amortize, include
as Operating Expenses, or otherwise pass those costs through to Tenant.”






	7.	 	Signage. 






	 	a.	 	  Section 4.5 of the Original Lease is hereby amended by replacing the
last sentence with the following: “Notwithstanding the foregoing, except in connection
with the existing monument at the corner of Trimble and Orchard Roads, Tenant shall be
entitled to 50% of the signage currently located throughout the Project (including without
limitation signage at the exterior perimeter, driveways and roads, on buildings and
directional signage).
	 
	 	b.	 	The Original Lease is hereby amended by inserting the following as a new Section
4.5(A): “The parties acknowledge that Landlord installed the Lumileds/Avago monument at
the corner of Trimble and Orchard Roads. The cost of such installation shall be borne
solely by Landlord and will not be charged to Tenant (whether as an Operating Expense or
otherwise).”
	 
	 	c.	 	Exhibit D to the Original Lease is hereby amended by removing the requirement for
Tenant to install the Exterior Monument signage.






	8.	 	Furniture. The Original Lease is hereby amended by inserting the following as
a new Section 16.18: “Landlord’s Furniture. Landlord hereby leases to Tenant without
separate charge, and Tenant hereby hires from Landlord, the personal property currently
located within the Premises (the “Included Personal Property”). Landlord makes no
representation as to the condition or usability of the Included Personal Property. Tenant
shall indemnify and hold harmless Landlord, and its officers, directors, agents, employees and
invitees, from and against any and all claims, actions, liability and damages (including
without limitation reasonable attorneys’ fees and expenses) sustained by any agent, employee,
contractor, invitee, assignee or tenant of Tenant as a result of any injury, damage or other
liability suffered in connection with the Included Personal Property. Tenant shall (i) accept
the Included Personal Property in its “as is” condition as of the date hereof, as the same may
be affected by reasonable wear and tear after the date hereof, (ii) insure the Included
Personal Property against loss or damage by fire or other casualty (and all of the provisions
of this Lease applicable to insurance required to be carried by Tenant shall be applicable
thereto), and (iii) surrender the Included Personal Property to Landlord in the Premises upon
the expiration or sooner termination of this Lease in the same condition as of the date
hereof, as the same may be affected by reasonable wear and tear.
	 
	 	 	If Tenant desires to remove any or all of the Included Personal Property from the Premises,
it shall notify Landlord of its intention with a specific list of the specified property.
Landlord shall either inform Tenant that (i) Tenant shall dispose the applicable Included
Personal Property, in which event the removal and disposal of the applicable Included
Personal Property shall be at Tenant’s sole cost and expense, or (ii) Tenant shall move, at
its sole cost and expense, the applicable Included Personal Property to a location at the
Project designated by Landlord. In the latter event, the cost and expense of storage will
be borne by Landlord. Tenant shall have no obligation to replace or restore any such
Included Personal Property so removed upon the Expiration Date.”





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	9.	 	Amendments to SLA. 






	 	a.	 	  Section 12.6.4 of the SLA is hereby amended by inserting the following
at the end of the second sentence: “, as such Building 90 Lease may have been extended.”
	 
	 	b.	 	All expenses to be paid by the Company to Contractor, as described in Exhibit B
to the SLA, will equal the applicable percentages, applied to the actual costs to
Contractor for such services. Contractor shall continue to charge the Company an
administrative fee of 3% as described in Section 2 of the SLA. A designated representative
of the Contractor and a designated representative of the Company shall meet prior to the
start of each calendar year to fix the levels of Services and estimates of the initial cost
of the Services for the next year. Contractor and Company acknowledge that they have
agreed to estimates of the expenses for 2007. The Services to the Company will remain the
equivalent of two technical maintenance headcount.






	10.	 	Brokers. Tenant represents and warrants that it has had no dealings with any
real estate broker or agent in connection with this Amendment other than Cornish & Carey
Commercial, whose fee and/or commission shall be payable by Tenant and that it knows of no
other real estate broker or agent who is or might be entitled to a commission in connection
with this Amendment. Tenant agrees to defend, indemnify and hold Landlord free and harmless
from and against any and all liabilities or expenses, including reasonable attorneys’ fees and
costs, arising out of or in connection with claims made by any broker or individual that
Tenant has dealt with for commissions or fees resulting from Tenant’s execution of this
Agreement.






	 	a.	 	Full Force and Effect; Inconsistency. Except as otherwise expressly set
forth in this Amendment, all provisions of the Original Lease shall remain in full force
and effect as modified hereby and are hereby ratified, confirmed and affirmed, and
references therein to the “Lease” shall be references to the Original Lease as modified by
this Amendment. In the event of any inconsistency between the terms of the Original Lease
and the terms of this Amendment, the terms of this Amendment shall control.
	 
	 	b.	 	Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which when taken together shall constitute
one and the same instrument. To facilitate the execution of this Amendment, each of the
parties hereto may execute and exchange by telephone facsimile counterparts of the
signature pages, with each facsimile being deemed an “original” for all purposes.





[Remainder of Page Intentionally Left Blank]




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          IN WITNESS WHEREOF, this Amendment has been executed and delivered by the parties hereto as of
the date first above written.




	 	 	 	 	 
	 	AVAGO TECHNOLOGIES U.S., INC, a Delaware corporation

 	 
	 	By:  	/s/
Hock E. Tan	 
	 	Name:  	Hock E. Tan 	 	 
	 	Title:  	President and CEO 	 	 
	 
	 	LUMILEDS LIGHTING B.V., a Netherlands corporation

 	 
	 	By:  	/s/ N.T. Bostock	 
	 	Name:  	N.T. Bostock	 	 
	 	Title:  	CFO	 	 
	 




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