Exhibit 10.20
AMENDMENT NO. 1
TO
SUBLEASE AGREEMENT
This amendment ("Amendment") is entered into this 14th day of April 2000 and
modifies the Sublease Agreement by and between Wyse Technology Inc.
(hereinafter "Sublessor") and Oplink Communications Inc. (hereinafter
"Sublessee") and Wyse Technology Investments Inc. (hereinafter "Landlord")
which is dated 29 February 2000.
The provisions of this Amendment are intended to modify certain provisions of
the Sublease. Where the provisions of the Amendment are specifically stated
and differ from those in the Sublease, the provisions of the Amendment shall
control. All other terms and conditions remain unchanged.
For consideration of additional rent, covenants, agreements and conditions
herein contained, Sublessor, Sublessee and the Landlord hereby agree as
follows:
1. SUBLEASED PREMISES. The Sublease consists of certain
premises which constitute approximately 62,023 square feet
of the building located at 0000 Xxxxx Xxxxx Xx., Xxx Xxxx,
XX 00000 (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.
The amendment shall add the following space to the
Premises: Approximately 16,059 square feet of the first
floor of the building located at 0000 X. Xxxxx Xx. Xxx
Xxxx, XX 00000. Hereafter, the term Premises shall be
amended to include this additional space.
Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases from
Sublessor, for the term and upon conditions herein after set forth, the added
space as described above and as shown on the drawing attached hereto as
Exhibit A and incorporated herein by this reference.
The total Subleased Premises now contains approximately 77,523 rentable
square feet. Landlord hereby provides his unqualified consent to this
Amendment of the Sublease.
2. TERM. Subject to the terms and conditions set forth herein,
the term of Amendment shall commence on or about April 14,
2000 (the "Commencement Date"), and shall terminate
contemporaneously with the Sublease 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. The Renewal Option set forth in the
Sublease also applies to the Amendment.
4. USE. Sublessee is permitted to use the Subleased Premises
for office space only.
1.
5. RENT.
(a) During the term of this Sublease, and commencing
on the Commencement Date Sublessee covenants and
agrees to pay to Sublessor $1.90 per rentable
square foot (RSF) per month as Base Rate for the
additional premises, without previous notice or
demand. The monthly total monthly rent, therefore,
will increase by the amount of $30, 512.10 from
$108,540.25 to a combined total of $ 139052.35.
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 for this additional space
shall increase by 3%. The base rate shall then be
$1.96 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 increase the sum of the security
deposit by $ 30,512 (equaling one month's Base
Rate) for security deposit.
(e) The rent for the space added by this Amendment is
"gross" in that utilities and property taxes are
included.
6. CONDITION OF ADDED SPACE. Sublessee hereby agrees to accept
the added space 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 this space including by way of
example, and not limitation, any warranties of suitability,
fitness for purpose of use or habitability, except that
Sublessor will make it available to Sublessee on or before
14 April 2000.
7. UTILITIES. Included in the Base Rent for the added space
leased under this Amendment.
8. Each of the parties hereby represents that it has not
obtained the services of a real estate broker or agent for
the purposes of leasing the Subleased Premises and that
2.
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.
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/ Xxxxxx Xxx BY: /s/ Xxxxxxx Chance
-------------------------------- --------------------------------
Xxxxxx Xxx Xxxxxxx Chance
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(Print or type name) (Print or type name)
CEO President and CEO
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(Title) (Title)
04/10/00 14 April 2000
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(Date) (Date)
LANDLORD
WYSE TECHNOLOGY INVESTMENTS INC.
BY: /s/ Xxxxxxx Chance
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Xxxxxxx Chance
----------------------------------
(Print or type name)
President
----------------------------------
(Title)
14 April 2000
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(Date)
3.
EXHIBIT A
DRAWING OF ADDED SPACE, BUILDING THREE
(attached)
[FLOOR PLAN]
AMENDMENT NO. 2
TO
SUBLEASE AGREEMENT
This second amendment ("Amendment No. 2") is entered into this 1st day of
September, 2000, and modifies the Sublease Agreement by and between Wyse
Technology Inc. (hereinafter "Sublessor") and Oplink Communications Inc.
(hereinafter "Sublessee") and Wyse Technology Investments Inc. (hereinafter
"Landlord") which is dated 29 February 2000 and Amendment No.1 to Sublease
Agreement which is dated 14 April 2000.
The provisions of this Amendment No. 2 are intended to modify certain provisions
of the Sublease. Where the provisions of Amendment No. 2 are specifically stated
and differ from those in the Sublease, the provisions of Amendment No. 2 shall
control. All other terms and conditions remain unchanged.
For consideration of additional rent, covenants, agreements and conditions
herein contained, Sublessor, Sublessee and the Landlord hereby agree as follows:
1. SUBLEASED PREMISES. The Sublease consists of certain premises which
constitute approximately 62,023 square feet of the building located at
0000 Xxxxx Xxxxx Xx., Xxx Xxxx, XX 00000 (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. Amendment No. 1 to the
February 29, 2000 Sublease Agreement added approximately 16,059 square
feet of the first floor of the building located at 0000 X. Xxxxx Xx.,
Xxx Xxxx, XX 00000.
This second amendment shall add the following space to the Premises:
(1) approximately 14,455 square feet of the west wing of the first
floor of the building located at 0000 X. Xxxxx Xx., Xxx Xxxx, XX 00000
(hereinafter referred to as "Area A"), and (2) approximately 12,812
square feet of the north wing of the first floor of the building
located at 0000 X. Xxxxx Xx., Xxx Xxxx, XX 00000 (hereinafter referred
to as "Area B"). Hereafter, the term Premises shall be amended to
include this additional space.
Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases from
Sublessor, for the term and upon conditions hereinafter set forth, the added
space as described above and as shown on the drawing attached hereto as Exhibit
A and incorporated herein by this reference.
The total Subleased Premises now contains approximately 104,790 rentable square
feet. Landlord hereby provides his unqualified consent to this Amendment of the
Sublease.
2. TERM.
(a) Area A. Subject to the terms and conditions set forth herein, the term
Oplink Amendment No.2 (08/28/00) Page 1
of Amendment with respect to Area A shall commence on or about
September 1, 2000 ("Commencement Date A"), and shall terminate
contemporaneously with the Sublease on February 28, 2005.
(b) Area B. Subject to the terms and conditions set forth herein,
the term of Amendment with respect to Area B shall commence on
or about November 1, 2000 ("Commencement Date B"), and shall
terminate contemporaneously with the Sublease on February 28,
2005.
(c) It is understood and agreed by the Sublessee and the Sublessor
that the rights 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. Subject to the terms and conditions set forth herein,
the Renewal Option set forth in the Sublease also applies to the
Amendment.
4. BREAK CLAUSE.
(a) Subject to the terms and conditions set forth herein,
Sublessor shall be committed to sublease to Sublessee Area A
and Area B for a period of two (2) years from Commencement
Date A. In the event that Sublessor desires to terminate
Amendment Xx. 0 xxx xx-xxxxxx Xxxx X xxx Xxxx X subsequent to
August 31, 2002, Sublessor shall provide Sublessee with
minimum six (6) months prior written notice of termination and
re-entry. In addition to the aforementioned notice
requirement, Sublessor shall pay to Sublessee a termination
fee equivalent to three months rent, which shall be offset by
the amount described in provision 4(b) should Sublessee
exercise its rights under said provision.
(b) In the event that Sublessor exercises its rights under
provision 4(a),
Sublessee may subsequently terminate the Sublease Agreement and
Amendment No. 1. Sublessee shall provide Sublessor with minimum
six (6) months prior written notice of termination, in addition
to a termination fee equivalent to three months rent for the
areas covered by the initial Sublease Agreement and Amendment
No.1. Sublessee's right to terminate the Sublease Agreement and
Amendment No. 1 under provision 4(b) shall commence upon
receipt of written notice by Sublessor as set forth in
provision 4(a).
5. USE. Sublessee is permitted to use the Subleased Premises for
office space only.
6. RENT.
(a) During the term of this Sublease, and commencing on both
Commencement Dates A and B Sublessee covenants and agrees to
pay to Sublessor $2.50 per rentable square foot (RSF) per
month as
Oplink Amendment No.2 (08/28/00) Page 2
Base Rate for the additional premises, without previous notice
or demand. The total monthly rent for the period subsequent to
Commencement Date A and prior to Commencement Date B,
therefore, will increase by the amount of $36,137.50 from
$139,052.35 to a combined total of $175,189.85. The total
monthly rent for the period subsequent to Commencement Date B
and due for the remainder of the term of the Sublease,
therefore, will increase by $32,030.00 from $175,189.85 to a
combined total of $207,219.85. 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 twenty-four (24) months
subsequent to Commencement Date A, the rent for this
additional space shall increase by 3%. The base rate shall
then be $2.58 (rounded up) 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
increase the sum of the security deposit by $68,167.50
(equaling one month's Base Rate for both Area A and Area B)
for security deposit.
(e) The rent for the space added by this Amendment is "gross" in
that utilities and property taxes are included.
7. CONDITION OF ADDED SPACE. Sublessee hereby agrees to accept the added
space on an "as is", "as built" condition on Commencement Dates A and
B, respectively, of the term of this Sublease, it being understood and
agreed that Sublessor makes no warranties, express or implied, as to
this space including by way of example, and not limitation, any
warranties of suitability, fitness for purpose of use or habitability,
except that Sublessor will make it available to Sublessee on or before
1 September 2000 (Area A) and 1 November 2000 (Area B), respectively.
8. TENANT IMPROVEMENTS. Sublessee desires to modify and improve the
Premises. Subject to Sublessor and Landlord's reasonable written
approval of the final plans, which shall not be unreasonably withheld,
and agreement
Oplink Amendment No.2 (08/28/00) Page 3
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. A preliminary description of such improvements shall be set
forth in Exhibit B, which shall be incorporated herein by this
reference. All improvements shall conform with the general aesthetic
design of the Premises.
Such improvements shall be constructed at Sublessee's expense,
including, but not limited to, material and labor costs, and all other
costs to meet building code requirements necessary to obtain occupancy
permits. In addition, Sublessee shall employ a structural engineer for
any improvements that may effect the structural integrity of the
Premises. Sublessee shall be fully liable for any improvements that
materially alter the structural integrity of the Premises.
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.
9. SIGNS. Subject to the provisions of applicable City of San Xxxx 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.
10. UTILITIES. Included in the Base Rent for the added space leased under
this Amendment.
11. Each of the parties hereby represents that 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.
Oplink Amendment No.2 (08/28/00) Page 4
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: _________________________________________________ BY: _________________________________________________
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(Print or type name) (Print or type name)
----------------------------------------------------- -----------------------------------------------------
(Title) (Title)
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(Date) (Date)
LANDLORD
WYSE TECHNOLOGY INVESTMENTS INC.
BY: _________________________________________________
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(Print or type name)
-----------------------------------------------------
(Title)
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(Date)
Oplink Amendment No.2 (08/28/00) Page 5
EXHIBIT A
DRAWING OF ADDED SPACE, BUILDING THREE
(attached)
Oplink Amendment No.2 (08/28/00) Page 6
EXHIBIT B
TENANT IMPROVEMENTS
(also see attached Exhibit A)
AREA A EMPLOYEE ENTRANCE
- Sublessor and Sublessee are discussing the feasibility of Sublessee
constructing an additional employee entrance at the northwest corner of
Area A (see Exhibit A)
- Specific terms and conditions of said construction to be discussed at a
later time, which shall be incorporated herein by this reference.
AREA A OFFICES
- Sublessor and Sublessee are discussing the feasibility of Sublessee
constructing permanent partitions along the southern end of Area A for the
purpose of building offices (see Exhibit A)
- Specific terms and conditions of said construction to be discussed at a
later time, which shall be incorporated herein by this reference.
Oplink Amendment No.2 (08/28/00) Page 7
