Exhibit 10.18
SUBLEASE AGREEMENT
This Sublease Agreement is made and entered into the 29 day of February 2000 by
and between Wyse Technology Inc. (hereinafter "Sublessor") and Oplink
Communications Inc. (hereinafter "Sublessee") and Wyse Technology Investments
Inc. (hereinafter "Landlord").
This Sublease is subordinate to and generally controlled by a lease, dated March
19, 1993 (as amended) between Landlord and Sublessor ("Lease"). The provisions
of the Lease are attached (as Exhibit A) hereto and incorporated by reference
for all purposes. Where the provisions of this Sublease are specifically stated
and differ from those in the Lease, the provisions of the Sublease shall
control.
For consideration of the rent, covenants, agreements and conditions herein
contained, Sublessor, Sublessee and the Landlord hereby agree as follows:
1. SUBLEASED PREMISES. Sublessor leases from Landlord certain premises
which constitute approximately 62,023 square feet of the building
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter
referred to as "Premises") which are a portion of the property
("Campus") which is the subject of that certain Lease dated March 19,
1993 (and as amended and restated) between Sublessor and Landlord.
Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases
from Sublessor, for the term and upon conditions herein after set
forth, the Subleased Premises, as shown on the drawing attached hereto
as Exhibit B and incorporated herein by this reference. The Subleased
Premises contains 62,023 rentable square feet. Landlord hereby provides
his unqualified consent to this sublease of the Subleased Premises.
2. TERM. Subject to the terms and conditions set forth herein, the term of
this Sublease shall commence on or about March 1, 2000 (the
"Commencement Date"), and shall terminate on February 28, 2005, except
that it is understood and agreed by the Sublessee and the Sublessor
that the right and interest of Sublessee under this Sublease are
derivative of those of Sublessor under the Lease between Sublessor
Landlord and not any greater than such rights and interest of Sublessor
as to the Subleased Premises.
3. RENEWAL OPTION. Provided Sublessee is not in default, Sublessee may
extend the Sublease term. Sublessee may, upon provision of ninety (90)
days written notice prior to the end of the term, extend the term for
an additional period of one year. At the end of that term, Sublessee
may again extend for an additional one-year period. Any such extension
shall be upon the same Sublease terms, except that the rent rate shall
change to the then- current fair market value, but in no event shall
the rate be less than the rate Lessee is paying at the end of the
preceding term.
4. USE. Sublessee is permitted to use the Subleased Premises for office,
R&D, manufacturing and warehouse activities.
5. RENT.
1.
(a) During the term of this Sublease, and commencing on the
Commencement Date Sublessee covenants and agrees to pay to
Sublessor $1.75 per rentable square foot (RSF) per month as
Base Rate for the Subleased Premises, without previous notice
or demand. The monthly rent, therefore, will be $108,540.25.
The rent payment shall be delivered to Sublessor on or before
the first day of each calendar month during the term of the
sublease hereof, with the first such monthly installment to be
paid upon the signature of the Sublease.
(b) If the Commencement Date shall occur on a date other than the
first day of a calendar month, Sublessee shall pay to
Sublessor on the first day of the month next succeeding the
Commencement Date a sum equal to one-thirtieth (1/30) of the
months rent installment of the Base Rate set forth above,
multiplied by the number of days of the calendar month in
which the Commencement Date occurred. This pro-rata payment of
the Base Rate for the portion of the month of the Commencement
Date shall be in addition to the monthly installment of the
Base Rate applicable to that month.
(c) Increases to Base Rent. At the end of the 2nd year of the
term, the rent shall increase by 3%. The base rate shall then
be $1.80 per RSF. Thereafter, the base rent shall remain
unchanged for the balance of the term.
(d) As security for Sublessee's faithful performance under the
Sublease, Sublessee shall upon execution of the Sublease the
sum of $108,540.25 (equaling one month's Base Rate) for
security deposit. This deposit shall not be applied by
Sublessee as last month's rent under the Sublease. The balance
of the security deposit will be remitted to Sublessee within
forty-five (45) days of the termination of the Sublease
(unless the Sublease is terminated for default of Sublessee.)
(e) Gross Rent. The base rent is on a gross, not triple net,
basis. Sublessee shall not be obligated to pay any
"additional" rent such as common area maintenance charges,
operating expenses, real estate taxes and the like. However,
personal property taxes on Sublessee owned property or income
taxes shall be the sole responsibility of Sublessee.
(f) Late Payments. In the event that Sublessee fails to remit
payments as described above, Sublessee shall additionally be
liable for the greater of (i) interest on the unpaid amount,
calculated at twelve percent (12%) per year or (ii) liquidated
damages of $250.00.
(g) Rent Inclusions. In addition to subsection (e) above, the
gross rental rate includes access to and use of (i) the
existing electronic security system as currently installed in
the Premises; (ii) use by Sublessee's on-site employees and
guests of the cafeteria; (iii) use by Sublessee's on-site
employees (excluding contractors or temporary workers) of the
recreation center (including lockers, showers, weight room,
racquetball courts, basketball court, tennis court, sauna,
pool and Jacuzzi) so long as Landlord and Sublessor operate
these benefits for its own employees. Rent does not include
janitorial services to the Premises.
2.
6. CONDITION OF SUBLEASED PREMISES. Sublessee hereby agrees to accept the
Subleased Premises on an "as is", "as built" condition on the
Commencement Date of the term of this Sublease, it being understood and
agreed that Sublessor makes no warranties, express or implied, as to
the Subleased Premises including by way of example, and not limitation,
any warranties of suitability, fitness for purpose of use or
habitability, except that Sublessor will vacate the Subleased Premises
and make them available to Sublessee on or before 1 March 2000.
7. TENANT IMPROVEMENTS. Sublessee desires to modify and improve the
Premises. Subject to Sublessor and Landlord's reasonable approval of
the final plans and agreement as to the disposition of such
improvements upon the termination of the Sublease, Sublessor and
Landlord hereby grant approval. Sublessee shall be responsible for the
supervision of and successful completion of all work by the use of a
licensed, bonded contractor. Agreed improvements, the cost thereof and
the final disposition thereof shall be set forth in Exhibit C which
shall be incorporated by reference for all purposes.
Such improvements shall be constructed partially at Landlord's expense
and partially at Subtenant's expense: The first $60,000 will be
contributed by Digital Microwave Corporation (for the benefit of
Landlord and Sublessor) in accordance with a separate (termination)
agreement between Digital and Sublessor and Landlord. Landlord will
contribute $250,000. Any sums required to complete the improvements
exceeding $310,000 shall be paid solely by Sublessee. Sublessee shall
indemnify and hold Landlord and Sublessor harmless for any mechanics or
materialmen's liens arising from the construction of the improvements.
Landlord shall own the title to all Tenant Improvements irrespective of
which party may provide the funding to construct.
Any other alterations during the term shall be as per Section 13 of the
Lease
8. UTILITIES. Sublessor shall ▇▇▇▇ Sublessee monthly for natural gas,
water and electricity on a pro rata basis (62,023/167,200). Sublessee
shall contract on its own for other utilities, such as telephone and
data lines, at its own expense.
9. INSURANCE. Sublessee shall, throughout the term of the Sublease
maintain insurance coverage adequate to meet its obligations under the
Sublease, including business interruption insurance. Sublessee shall,
within fifteen (15) calendar days of the Commencement Date, provide
Sublessor with a certificate of insurance naming Landlord and Sublessor
as additional named insureds. Such insurance shall have the following
minimum coverages:
a) General Liability of 2,000,000 aggregated/1,000,000 each
occurrence;
b) Automobile Liability $1,000,000 aggregated & each
occurrence;
c) Workers Compensation and Employers' Liability $1,000,000
aggregated & each occurrence;
d) Umbrella Coverage $10,000,000 aggregated & each occurrence.
3.
10. REPAIRS AND MAINTENANCE. Sublessee shall generally keep the Premises
clean and in good order and repair during the term and shall comply
with all applicable laws and regulations pertaining to the use of the
Premises.
(a) Landlord/Sublessor's Obligation to Maintain and Repair. The
campus and the exterior walls and roof of the Premises shall
be maintained and repaired by Landlord. Landlord is also
responsible for the foundation, structural supports, floors
(but not floor coverings), utilities to the common areas,
common areas including driveways, sidewalks parking lot.
(b) Sublessee's Obligations to Maintain and Repair. Sublessee
shall, at Sublessee's sole cost and expense keep and maintain
the interior non- structural portions of the Premises, the
exterior doors and exterior glass of the Premises excepting
for damage caused by an insured casualty. Sublessee shall also
maintain the improvements to the Premises and all fixtures.
Landlord shall have no responsibility therefore except where
due to the gross negligence or willful misconduct of Landlord.
11. SUBLESSEE'S COVENANTS.
(a) Except as set forth in this Agreement, all Sublessee's
covenants and obligations to the Sublessor and the Landlord
under this Sublease shall be the same as the covenants and
obligations of Sublessor to Landlord under the Lease and all
Amendments hereto, which are attached hereto as Exhibit A and
incorporated herein by reference, to the extent that such
covenants and obligations are applicable to the Subleased
Premises and the Sublease terms.
(b) Sublessee hereby covenants and agrees to indemnify, hold
harmless and at the option of Sublessor, defend Sublessor in
all suits, actions and proceedings arising out of, related to,
or concerning either (i) any default or non-performance by
Sublessee of this Sublease, including without limitation,
those covenants and obligations undertaken in the preceding
subparagraph, or (ii) the use or occupancy by Sublessee of the
Subleased Premises, except to the extent that such arises from
the negligence or willful misconduct on the part of the
Sublessor.
(c) In the event of any dispute and/or litigation between the
Sublessee and the Landlord, the Sublessee will hold the
Sublessor harmless.
12. SUBLESSOR COVENANTS.
(a) Except as set forth above or as otherwise required by the
context of the Lease, all of the Sublessor's covenants and
obligations under the Sublease shall be the same as the
covenants and obligations of Landlord to Sublessor under the
Lease and all Amendments thereto.
(b) In the event of any dispute and/or litigation between the
Sublessor and the Landlord, the Sublessor will hold the
Sublessee harmless.
4.
13. LANDLORD COVENANTS. Except as set forth herein, or as otherwise
required by the contents of the Lease, all of Landlord's covenants and
obligations under the Sublease shall be the same as the covenants and
obligations of Landlord to Sublessor under the Lease and all Amendments
thereto.
14. PARKING. A minimum of four (4) parking spaces per each 1,000 RSF shall
be available to Sublessee. Such parking spaces shall be identified in a
general manner on Exhibit B. The spaces will not be reserved or
specifically marked as being only for the benefit of Sublessee. Use
thereof shall be in accordance with any current Landlord or Sublessor
rules or regulations governing same.
15. OPTION TO EXPAND. During the term of the Sublease, including any
renewal term, Sublessee shall have the first option to lease any space
which Landlord and/or Sublessor may make available for lease.
Notwithstanding the foregoing, neither Landlord or Sublessor are
obligated to make any additional space available. The rent for any
expansion space will be at then-current fair market value as agreed by
the Parties.
16. SIGNS. Subject to the provisions of applicable City of San ▇▇▇▇ law or
regulations or other governmental agencies and subject to the
reasonable approval of Sublessor and Landlord, Sublessee may install
appropriate signage at (i) the entrance to the campus driveway; (ii)
directional signs to assist visitors to locate Sublessor's entrance(s);
(iii) on or near the Leased Premises for purposes of identifying same.
17. FIRST RIGHT OF REFUSAL. (a) Landlord and Sublessor have leased space in
the Campus to Pacific ▇▇▇▇. Pacific ▇▇▇▇'▇ sublease expires in January
2002 and it includes the option to extend their lease for a period of
3, 4 or 5 years. In the event that Pacific ▇▇▇▇ chooses to terminate
its lease at the end of the initial term Sublessor and Landlord shall
grant Sublessee a right of first refusal for whatever portion of the
space (all or part--less the Premises) Sublessor and Landlord decide to
offer for lease at that time. (b) Sublessor and Landlord will also give
Sublessee a right of first refusal on any other campus space which
Landlord may make available for lease during the term of this Sublease.
18. Miscellaneous.
(a) The terms "Sublessor", "Sublessee' and "Landlord" shall, as
applicable, include their legal representatives, successor and
assigns. All covenants herein made binding upon Landlord,
Sublessee and Sublessor shall be equally binding on its
agents, employees and others claiming the right to be in the
Subleased Premises through or under the Sublessee or
Sublessor. The Sublease shall be binding upon and shall inure
to the benefit of the parties hereto and their respective
assigns.
(b) This Sublease shall be governed by the laws of the State of
California.
(c) All notices required to be made hereunder shall be sent to the
following addresses, or such other addresses as a party may
later designate:
5.
TO SUBLESSEE:
Oplink Communications Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Facilities Manager
TO SUBLESSOR:
Wyse Technology Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇ 150-3
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director of Facilities
TO LANDLORD:
Wyse Technology Investments Inc.
C/o Wyse Technology Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
(d) Each of the parties hereby represents that other than Colliers
International it has not obtained the services of a real
estate broker or agent for the purposes of leasing the
Subleased Premises and that it will indemnify and hold
harmless the other parties from such claims in the event that
any other party established a right derived from such
indemnifying party to receive commissions or any payment as a
consequence of this Sublease. Any or all brokers fees are the
subject of separate agreement(s) and Sublessee acknowledges
that neither Sublessor or Landlord have any obligation
thereunder for the payment of any fees whatsoever.
(e) The parties hereby agree that there shall be no recording of
this Sublease or notice of this Sublease in any registry of
deeds with any public agency, and that the terms and
conditions of this Sublease are confidential and shall not be
disclosed to any third party without a need to know for
financial, legal or other substantial reasons.
(f) Sublessee agrees to reimburse all of Sublessor's costs and
expenses in seeking and obtaining any judicial enforcement of
this Sublease, including, without limitation, all resulting
reasonable attorneys fees.
[intentionally blank--continued on next page]
6.
(g) Special Access to Premises. In addition to rights of access
set forth in Section 12 of the Lease, Sublessor shall, at all
reasonable times (and upon reasonable notice except in cases
of emergency) have access via the Premises to the "roof access
door" located therein.
(h) Assignment. Sublessee shall not assign this Sublease or any of
its rights or obligations hereunder without the written
consent of both Sublessor and Landlord. Such consent shall not
be unreasonably withheld provided the proposed assignee is
financially sound, will use the Premises for similar purposes,
and Sublessee agrees to remain responsible, as assignor, for
assignee's performance.
In witness whereof, the parties hereto have caused this instrument to be
executed in triplicate as of the date first written above.
SUBLESSEE SUBLESSOR
OPLINK COMMUNICATIONS INC. WYSE TECHNOLOGY INC.
BY: /s/ ▇▇▇▇▇▇ ▇▇▇ BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------- ------------------------------------
(Print or type name) (Print or type name)
CEO Vice President Admin. and Sales Operations
----------------------------- --------------------------------------------
(Title) (Title)
02/29/00 February 29, 2000
------------------------------ --------------------------------------------
(Date) (Date)
LANDLORD
WYSE TECHNOLOGY INVESTMENTS INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. Chance
---------------------------
▇▇▇▇▇▇▇ ▇. Chance
------------------------------
(Print or type name)
President & CEO
------------------------------
(Title)
February 29, 2000
------------------------------
(Date)
7.
EXHIBIT A
COPY OF LEASE BETWEEN WTI AND WYSE
(attached)
8.
AMENDED AND RESTATED LEASE AGREEMENT
LANDLORD: Wyse Technology Investments, Inc., a California corporation
TENANT: Wyse Technology, Inc., a Delaware corporation
PREMISES: Buildings located at
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
DATE: March 19, 1993
9.
BASIC LEASE INFORMATION
-----------------------
Landlord: Wyse Technology Investments, Inc.,
a California corporation
Landlord's Taxpayer I.D. No.: ▇▇-▇▇▇▇-▇▇▇
Tenant: Wyse Technology, Inc.,
a California corporation
Tenant's Taxpayer I.D. No.: ▇▇-▇▇▇▇▇▇▇
Project: The three building complex located at
the corner of North First Street and
River Oaks Place in San Jose, California
Premises (Section 1.a.): Amenities Space Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Approximately 2&,100 square feet
Building 2 Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ [lst and 2nd Floors]:
Approximately 88,818 rentable square feet
Building 3 Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Approximately 1&3,400 rentable square
feet of the one-story Building (entire
building)
Rentable Square Footage of 24,l00
Amenities Space (Section 1.d.):
Rentable Square Footage of 167,200
Building 2 (Section 1.d.):
Rentable Square Footage of 143,400
Building 3 (Section 1.d.):
Rentable Square Footage of 433,700
Project (Section 1.d.):
10.
Rentable Square Footage of 237,926
Premises (Section 1.d.)
Usable Square Footage of 24,100 square feet in Amenities Space;
Premises (Section 1.d.).: up to 88,818 square feet in Building 2;
and 143,000 square feet in Building 3
Total: max 255,918 square feet
Use (Section 15.a. ): Computer manufacturing and research and
development facility
Term (Section 2): Ten (10) years commencing on Commencement
Date
Commencement Date June 1, 1992
(Section 2.b.):
Monthly Rate Rent (Section 4): Monthly Rental Rate
Month Per Rentable Square Foot
---------------- -------------------------
0-7 $0.82
8-19 1.20
20-31 l.30
32-43 1.25
44-55 1.20
56-67 1.00
68-79 0.95
90-91 0.80
92-120 0.00
Estimated Operating Expenses Annual: $
----------
(Section 6.a.): Monthly: $
----------
Tenant's Percentage Share Building 2: 42.12%
(Section 6.a)
Building 3: 100%
Project: 34.85%
Parking Spaces (Section 33): Reserved: See EXHIBIT A
Unreserved: 4 spaces/l,000 rentable square
feet of the Premises minus the reserved
parking spaces
Landlord's Address (Section 40): ▇&▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
M/S 120-3
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇&-▇▇▇▇
11.
Tenant's Address (Section 40): ▇&▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
M/S 120-3
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇&-▇▇▇▇
"Landlord" "Tenant"
Wyse Technology Investments, Inc., a Wyse Technology, Inc. a Delaware
California corporation corporation
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Date: Date:
--------------------------------- --------------------------------
12.
EXHIBITS
Exhibit A: Legal Description of Real Property; Floor Plan for
Buildings; Calculation of Total Rentable and Useable
Square Footage for each Building and the Project; and
Site Plan of the Project
Exhibit ▇-▇: Summary of:
1. Project Operating Expenses for 1990 and 1991
2. Estimate of Project Operating Expenses for 1992
and 1993
3. Building Operating Expenses for 1990 and 1991
(Segregated by Building l, Building 2 and
Building 3)
4. Estimate of Building Operating Expenses for 1992
and 1993 (Segregated by ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇)
▇▇▇▇▇▇▇ ▇-▇: Summary of:
1. Amenities Expenses for 1990 and 1991
2. Estimated Amenities Expenses for 1992 and 1993
Exhibit C: Form of Estoppel Certificate
Exhibit D: Landlord's Normal Business Hours For Operation of HVAC
Exhibit E: Memorandum of Lease
Exhibit F: Tenant Insurance Requirements
Exhibit G: Specifications for Utilities and Services
13.