Laboratory Real Estate Lease
(the "Lease Agreement")
made and entered
between
International Business Machines Corporation, Zurich Research Laboratory,
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(hereinafter referred to as the "Lessor")
on the one hand
and
Uniphase Laser Enterprise AG, Zug,
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(hereinafter referred to as the "Lessee")
on the other hand
____________________
Whereas, the Lessor wishes to sell to Uniphase Corporation and the
Lessee, and Uniphase Corporation and the Lessee wishes to purchase
from the Lessor the Transferred Assets as defined in the Purchase
Agreement (as defined below)
Whereas, Uniphase Corporation and the Lessee and the Lessor for
this purpose have entered into purchase agreement dated of even
date herewith (hereinafter referred to as the "Purchase
Agreement"), and
Whereas, the Lessor wishes during a transitional period following
the completion of the Purchase Agreement to lease to the Lessee,
and the Lessee wishes to rent from the Lessor the Leased Premises
(as defined below), subject to the terms and conditions hereinafter
set forth, in order to allow the immediate start of the production
of certain components,
Whereas, the Lessor and the Lessee intend, during the transitional
period following the completion of the Purchase Agreement to
receive and provide certain basic support and administrative
services and for this purpose shall enter into a services agreement
(hereinafter referred to as "Services Agreement");
Now, therefore, in consideration of the premises set forth above
and the respective covenants, agreements, hereinafter set forth,
Lessor and Lessee (collectively the "Parties") hereby agree as
follow
1. Leased Premises
The Lessor leases to the Lessee in the building located at
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ the following premises
(collectively the "Leased Premises"):
a) 340.0 meters squared offices and 143.9 meters squared dry
laboratories and 30.0 meters squared (such premises being hereinafter
referred to as "Premises A") further described in Schedule 1 and 4.
b) 68.8 meters squared offices, 77.4 meters squared cleanroom, 35.3
meteres squared dry laboratories and 380.3 meters squared wet
laboratories (such premises being hereinafter referred to as
"Premises B") further described in Schedule 2 and 4.
c) 15.1 meters squared offices and 53.0 meters squared wet
laboratories (such premises being hereinafter referred to as
"Premises C") further described in Schedule 3 and 4.
The joint use of public spaces such as parking, corridors,
cloakrooms, reception area, rooms (as referenced in the Safety
Manual in Schedule 6) and the joint use of the conference rooms are
included in the Lease Agreement. The Lessee can use conference
rooms including the video conferencing equipment subject to
availability.
2. Use of the Leased Premises
The Leased Premises shall be used for the production of diode-
lasers in the same manner as they have been used by Lessor's Laser
Enterprise Department.
3. Term of the lease
3.1.The term of the lease for the Premises A, B, C begins on the
Closing Date of the Purchase Agreement.
3.2.The lease of the Premises A shall end on 31. December 1997
without notice of termination (hereinafter referred to as
"Fixed Lease Period A").
3.3.The lease of the Premises B shall end on 30. June 1998 without
notice of termination (hereinafter referred to as "Fixed Lease
Period B").
3.4.The lease of the Premises C shall end on 31. December 1998
without notice of termination (hereinafter referred to as
"Fixed Lease Period C").
4. Extension of the lease periods
4.1. The Lessee has the right to unilaterally extend the lease term
with regard to the Premises A until the ( * ).
The notification of the extension shall be made by written
notice by the Lessee to the Lessor three months prior to the
end of the Fixed Lease Period A.
4.2. The Lessee has the right to unilaterally extend the lease term
with regard to the Premises B until the ( * ).
The notification of the extension shall be made by written
notice by the Lessee to the Lessor three months prior to the
end of the Fixed Lease Period B.
4.3.The Lessee has the right to unilaterally extend the lease term
with regard to Premises C until the ( * ) of the wet
laboratories as mentioned in Schedule 2. The Lessee also has
the right to swap one of the wet laboratories in lieu of L 261
of Schedule 3.
The notification of the extension shall be made by written
notice of the Lessee to the Lessor three months prior to the
end of Fixed Lease Period C.
4.4.The Lessee is aware that the Lease Agreement will be concluded
for the limited Fixed Leased Periods A, B, C and that he may
only request the extensions within the periods as described
hereinabove. Any further extension of the lease relationship
shall not be agreed because of the urgent need for the Lessor's
own use which involves a restructuring of the Leased Premises,
scheduled to start at the latest on ( * ) for the Premises
A, on ( * ) for the Premises B and on ( * ) for
Premises C. Therefore, the Lease Agreement as described
hereinabove is concluded expressly for a limited period of time
according to Article 272a (1)(d) of the Swiss Code of
Obligations.
4.5.The Lessee is aware that it requires a considerable effort to
find and equip suitable facilities to carry on his business
within a reasonable period of time and therefore before Closing
Date the Lessor has indicated him the opportunity for renting
other business premises in the locality of Binz in Zurich in
order for Lessee to be able to move to equivalent premises
within the agreed to time.
* - Information redacted and filed separately with the SEC.
5. Rent
5.1.For the lease of Premises A for the Fixed Lease Period A, of
Premises B for the Fixed Lease Period B and of Premises C for
the Fixed Lease Period C no rent is due by Lessor. The payment
of the remuneration for the use of the Leased Premises is
already included in the purchase price of the Transferred
Assets according to Section 1.3. of the Purchase Agreement.
5.2.For the extension of the lease term for the Premises A, the
Lessee shall pay a monthly rent of SFr. 90.-- per square meters
for the use of the offices and of SFr. 145.-- per square meters
for the use of the dry laboratories.
5.3.For the extension of the lease term for the Premises B, the
Lessee shall pay a monthly rent of SFr. 90.-- per square meters
for the use of the offices, of SFr. 345.-- per square meters
for the use of the cleanroom and of SFr. 210.-- per square
meters for the use of the wet laboratories.
5.4.For the extension of the lease term for the Premises C, the
Lessee shall pay a monthly rent of SFr. 135.-- per square meters
for the use of the offices and SFr. 320.-- square meters for
the use of the wet laboratories.
5.5.The rent for the extensions of the lease term of Premises B and
C is based on the index of consumers' prices at the Closing
Date of the Purchase Agreement. If for the 1. July 1998 the
index of consumers' prices (base May 1993 = 100 points)
increases of at least 5 points, the Lessor may once, at the
commencement date of each extension period increase the agreed
rents according to the following formula:
Increase in %:
new index - index at the time of conclusion of the contract
x 100
--------------------------------------------------
index at the time of conclusion of the contract
5.6. The agreed initial rents cannot be decreased.
5.7.The Lessee shall pay the rents at the end of each month for the
following month to the bank account as designated by the
Lessor.
6. Ancillary costs
6.1.Under ancillary costs of this Lease Agreement the Parties
understand the remuneration for performances by the Lessor
which are connected with the use of the Leased Premises A, B, C
and with the use of the common spaces further described in
Schedule 5.
▇.▇.▇▇ ancillary costs are due by the Lessee. These costs are
included in the purchase price as entailed in the Purchase
Agreement for the fixed periods A, B, C and in the rents for
the extensions of the Lease Agreement.
6.3.Telephone and fax expenses are not included in the ancillary
costs and will be charged separately to the Lessee.
7. Transfer of the Leased Premises
7.1.The transfer of the Leased Premises provided for in this
agreement shall take place on the Closing Date of the Purchase
Agreement.
The Lessor transfers the Leased Premises "AS IS". The Leased
Premises are deemed to be in a suitable condition for the use
as listed in Section 2 of this agreement. The Lessor represents
that at the Closing Date the Leased Premises comply with all
applicable laws including without limitation, environmental
protection laws, construction laws, the fire police law and the
requirements of the Labor Statute.
7.2.The Parties renounce to draw up a transfer protocol.
7.3.On the day of the transfer the Lessor will exchange the old
badges delivered to the transferred employees for the new ones
in order to allow the entering in the building and in the
Leased Premises to the Lessee. The replacement of lost or
stolen badges during the lease are part of the Mandatory
Services of the Lessor and are in his exclusive competence. The
Lessee shall immediately inform the Lessor of any loss. The
Lessee must pay the costs of the replacement. The procurement
of additional badges is in the exclusive competence of the
Lessor. The Lessee shall inform the Lessor of any need hereof.
7.4.The Lessor will instruct the Lessee about the security system
of the building.
7.5.The Lessee confirms that he has received a copy of the 'IBM
Zurich-Site Safety Manual', which is attached to this Lease
Agreement as Schedule 6.
8. Duties of the Lessee
8.1.The Lessee shall use the Leased Premises with due care. He
shall use them only for the purposes mentioned under Section 2.
8.2.The Lessee shall give due consideration for other occupants and
he shall not impair in any way the Lessor's business and
research activities.
8.3.Except for the entrance of the Leased Premises and the common
spaces, the Lessee shall not have access to the other parts of
the building, specifically the research laboratories of the
Lessor except as provided for under the Services Agreement or
elsewhere under this Lease Agreement.
8.4.The Lessee shall observe all the security, safety and general
rules of the house regulations (hereinafter referred to as
"Internal Rules") to the extent they do not conflict with the
Lease Agreement. The Lessee is aware that the Internal Rules
are subject to revision to the extent they do not conflict with
the Lease Agreement by the Lessor and that he has no right to
request any replacement thereof.
8.5.The Lessee shall manage his business in accordance with the
Swiss mandatory public laws, and in particular to obey the
applicable rules of Swiss environmental protection law, of the
fire police law, the requirements of the Accident Insurance
Statute and all the related standards and the and the
requirements of the Labor Statute
8.6.The Lessee is not allowed to carry out any building
modification to the Leased Premises. Such modifications need
the written consent of the Lessor which consent shall not be
unreasonably delayed or refused.
8.7.All the Mandatory Services as defined in Section 2 and Schedule
1 of the Services Agreement are exclusively performed by the
Lessor. While occupying the Leased Premises the Lessee must
make use of the Mandatory Services as provided by the Lessor.
The Lessor is obliged to provide such Mandatory Services. The
Lessee shall consult with the Lessor (the competent staff)
about any necessity and problem. The Lessee shall immediately
report all defects to the contact persons as further mentioned
in Schedule 1 of the Services Agreement.
8.8.The Lessee shall permit the Lessor to enter the Leased Premises
to perform the Mandatory and Optional Services according to
Sections 2 and 3 and Schedules 1, 2 and 3 of the Services
Agreement, further, if necessary, for the maintenance, to
remedy defects and to repair or avoid damages. Except for the
performance of the Mandatory and Optional Services and for
emergency, the Lessee shall be notified ahead of time to the
extent possible.
8.9.Notwithstanding anything to the contrary set forth in the Lease
Agreement, if repairs and other urgent action are necessary,
the Lessee shall inform the Lessor and shall undertake all
reasonable precautions. The Lessee shall be liable for failure
to notify the Lessor.
8.10.The Lessee must remedy, at his own expenses, defects for which
the Lessor is not responsible according to Section 10.1 of the
Lease Agreement and which may be cured by standard cleaning, or
repairs and replacements necessary for ordinary maintenance.
The Lessee is not entitled to call upon external third parties
for the purpose of carrying out the obligation hereunder
without the prior written consent of the Lessor which consent
shall not be unreasonably delayed or refused.
8.11.Despite a ten day prior written notice period to cure, if the
Lessee continues to violate his duties according Section 9.1 to
9.6. in a manner such that the continuation of the Lease
Agreement may no longer be expected from the Lessor, the Lessor
may give notice of termination of the Lease Agreement with
effect after a period of 30 days as per the end of a month. The
Lessor may, however, give notice of termination of the
agreement with immediate effect if the Lessee has intentionally
caused serious damage to the Lessor's building.
9. Duties of the Lessor
9.1.The Lessor is obliged to maintain the Leased Premises in
compliance with all applicable laws, in a suitable condition
for the contractual use, to remedy the material defects and to
perform the Mandatory Services at any time they are necessary
within the periods further described in Section 6.1. of the
Services Agreement.
9.2.The Lessor shall inform the Lessee of any change of the
Internal Rules.
9.3.The Lessor shall not have access to the Leased Premises, except
for laboratories shared with Science and Technology as
mentioned in Schedule 2 and except as provided for under the
Services Agreement or elsewhere under this Lease Agreement.
10. Liability insurance
On 1. April 1997 the Lessee shall deliver a copy of the signed
professional risk indemnity insurance policy which shall cover at
least US$ 5'000'000.--.
11. Sublease
According to Article 262 (2)(c) of the Swiss Code of Obligations,
the sublease of the premises is not allowed because it would cause
significant disadvantages for the Lessor. Empty spaces will be
taken over by the Lessor.
12. Return of the Leased Premises
12.1.The Lessee must return the Premises in the same condition as
taken over with the reservation of the normal wear and tear
which results from the use provided for in this agreement under
Section 2.
12.2.The Lessee shall remove all the Transferred Assets. The
separation and removal shall conform to the rules mentioned in
Section 9 hereinbefore. The Lessee will not be liable for
incidental damages which arise as a natural consequence from
the separation and removal of the Transferred Assets. The
Lessee will bear the costs for the separation and removal. The
Lessor will cooperate with the Lessee in connection with such
separation and removal under a separate agreement.
12.3.The waste caused by the removal of the Transferred Assets will
be disposed of by Lessor and will be charged to the Lessee.
12.4.The Lessee shall return all the badges, keys and all the
documentation which concerns the Leased Premises.
12.5.The Lessee represents that at the date of return of the Leased
Premises, the Leased Premises will comply with all applicable
laws including without limitation environmental protection
laws, construction laws the file police law and the
requirements of the labor statute.
13. Applicable law / Place of Jurisdiction
13.1.This agreement shall in all respect be interpreted and
construed in accordance with and governed by the laws of
Switzerland, and shall be subject to performance in the country
of Switzerland.
13.2.Where no special clause is entailed in this agreement,
Articles 253 ff. of the Swiss Code of Obligations shall apply.
The compulsory statutory liability rules are applicable to this
agreement.
13.3. The court of jurisdiction is Horgen.
13.4.This Agreement supersedes any and all previous agreements
whether written or oral with respect to the subject matter. And
may not be amended unless in writing.
____________________
Place, date Place, date
3-10-97 3-10-97
The Lessor The Lessee
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List of the Leased Premises A
C-Building
C 233 C 219 C 353
C 241 C 349 C 355
C 251 C 350 ▇ ▇▇▇
▇ ▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇ 136* ▇ ▇▇▇ ▇ ▇▇▇
▇ ▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇
▇ 208 ▇ ▇▇▇ ▇ ▇▇▇
▇ ▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇
▇ 226 Z 222 P 285
H 232 Z 226 ▇ ▇▇▇
▇ ▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇
▇ 240 M 305
* = Labs shared with Science and Technology
List of the Leased Premises ▇
▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇ 122* L 130 Z 245
H 132* M 100 P 266
H 155* Z 113 ▇ ▇▇▇
▇ ▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇
▇ 207* Z 123 P 278
H 221 Z 207* P 282
H 249 Z 213 P 286
Z 239* P 290
* = Labs shared with Science and Technology
List of the Leased Premises C
Old Buildings
L 261 Z 218