Exhibit 10.14
CONSENT TO SUBLEASE AGREEMENT
THIS CONSENT TO SUBLEASE AGREEMENT (this "Agreement") is made as of
March __, 2000, by and among CARLYLE FORTRAN TRUST, a Maryland real estate
investment trust ("Landlord"), STEAG RTP SYSTEMS, a _____________________
("Tenant"), and OPLINK, a ___________________ ("Subtenant").
RECITALS
A. Reference is hereby made to that certain Lease Agreement dated July
21, 1995 (the "Original Lease"), between SBC&D Co., Inc. a California
corporation ("SBC&D"), as landlord, and AG Associates, Inc., a California
corporation ("AG Associates"), as tenant, as amended by that certain First
Amendment dated October 6, 1995, between SBC&D and AG Associates, that certain
side letter dated October 30, 1995, between EBC&D and AG Associates, and that
certain Second Amendment to Lease dated as of December 3, 1997, between
CarrAmerica Realty Corporation, a Maryland corporation ("CarrAmerica"),
successor to SBC&D's interest, and AG Associates (collectively, the "Lease"),
for approximately 152,865 rentable square feet (the "Premises") in those certain
office buildings located at 4425, 4423 and 0000 Xxxxxxx Xxxxx, commonly known as
Buildings B and C, in San Jose, California (the "Building").
B. Landlord has succeeded to the interests of SBC&D and CarrAmerica
under the Lease. Tenant has succeeded to the interests of AG Associates under
the Lease.
C. Pursuant to the terms of Paragraph 25 of the Original Lease, Tenant
has requested Landlord's consent to that certain Sublease, dated March 1, 2000,
between Tenant and Subtenant (the "Sublease"), with respect to a subletting by
Subtenant of the Premises, as more particularly described in the Sublease. A
copy of the Sublease is attached hereto as Exhibit A. Landlord is willing to
consent to the Sublease on the terms and conditions contained herein.
D. All defined terms not otherwise expressly defined herein shall have
the respective meanings given in the Lease.
AGREEMENT
1. LANDLORD'S CONSENT. Landlord hereby consents to the Sublease; provided
however, notwithstanding anything contained in the Sublease to the contrary,
such consent is granted by Landlord only upon the terms and conditions set forth
in this Agreement. The Sublease is subject and subordinate to the Lease.
Landlord shall not be bound by any of the terms, covenants, conditions,
provisions or agreements of the Sublease.
2. NON-RELEASE OF TENANT; FURTHER TRANSFERS. Neither the Sublease nor this
consent thereto shall release or discharge Tenant from any liability, whether
past, present or future, under the Lease or alter the primary liability of the
"Tenant to pay the rent and perform and comply with all of the obligations of
Tenant to be performed under the Lease (including the payment of all bills
rendered by Landlord for charges incurred by the Subtenant for services and
materials
supplied to the Premises). Neither the Sublease nor this consent thereto shall
be construed as a waiver of Landlord's right to consent to any further
subletting either by Tenant or by the Subtenant or to any assignment by Tenant
of the Lease or assignment by the Subtenant of the Sublease, or as a consent to
any portion of the Premises being used or occupied by any other party. Landlord
may consent to subsequent sublettings and assignments of the Lease or the
Sublease or any amendments or modifications thereto without notifying Tenant nor
anyone else liable under the Lease and without obtaining their comment. No such
action by landlord shall relieve such persons from any liability to Landlord or
otherwise with regard to the Premises.
3. RELATIONSHIP WITH LANDLORD. Tenant hereby assigns and transfers to Landlord
the Tenant's interest in the Sublease and all rentals and income arising
therefrom, subject to the terms of this Section 3. Landlord, by consenting to
the Sublease agrees that until a default shall occur in the performance of
Tenant's obligations under the Lease, Tenant may receive, collect and enjoy the
rents accruing under the Sublease. In the event Tenant shall default in the
performance of its obligations to Landlord under Paragraph 15 of the Lease
(whether or not Landlord terminates the Lease), however, Landlord may, at its
option by notice to Tenant, either (i) terminate the Sublease, (ii) elect to
receive and collect, directly from Subtenant, all rent and any other sums owing
and to be owed under the Sublease, as further set forth in Section 3.1 below, or
(iii) elect to succeed to Tenant's interest in the Sublease and cause Subtenant
to attorn to Landlord, as further set forth in Section 3.2 below.
3.1 LANDLORD'S ELECTION TO RECEIVE RENTS. Landlord shall not, by reason
of the Sublease, nor by reason of the collection of rents or any other sums from
the Subtenant pursuant to Section 3(ii), above, be deemed liable to Subtenant
for any failure of Tenant to perform and comply with any obligation of Tenant,
and Tenant hereby irrevocably authorizes and directs Subtenant, upon receipt of
any written notice from Landlord stating that a default exists in the
performance of Tenant's obligations under the Lease, to pay to Landlord the
rents and any other sums due and to become due under the Sublease. Tenant agrees
that Subtenant shall have the right to rely upon any such statement and request
from Landlord, and that Subtenant shall pay any such rents and any other sums to
Landlord without any obligation or right to inquire as to whether such default
exists and notwithstanding any notice from or a claim from Tenant to the
contrary. Tenant shall not have any right or claim against Subtenant for any
such rents or any other sums so paid by Subtenant to Landlord. Landlord shall
credit Tenant with any rent received by Landlord under such assignment but the
acceptance of any payment on account of rent from the Subtenant as the results
of any such default shall in no manner whatsoever be deemed an attornment by the
Landlord to Subtenant or by Subtenant to Landlord, be deemed a waiver by
Landlord of any provision of the Lease or serve to release Tenant from any
liability under the terms, covenants, conditions, provisions or agreements under
the Lease. Notwithstanding the foregoing, any other payment of rent from the
Subtenant directly to Landlord, regardless of the circumstances or reasons
therefor, shall in no manner whatsoever be deemed an attornment by the Subtenant
to Landlord in the absence of a specific written agreement signed by Landlord to
such an effect.
3.2 LANDLORD'S ELECTION OF TENANT'S ATTORNMENT. In the event Landlord
elects at its option, to cause Subtenant to attorn to Landlord pursuant to
Section 3(iii) above, Landlord shall undertake the obligations of Tenant under
the Sublease from the time of the exercise of the option, but Landlord shall not
(i) be liable for any prepayment of more than one month's rent or
any security deposit paid by Subtenant, (ii) be liable for any previous act or
omission of Tenant under the Lease or for any other defaults of Tenant under the
Sublease, (iii) be subject to any defense or offsets previously accrued which
Subtenant may have against Tenant, or (iv) be bound by any changes or
modifications made to the Sublease without the written consent of Landlord.
4. GENERAL PROVISIONS.
4.1 CONSIDERATION FOR SUBLEASE. Tenant and Subtenant represent and
warrant that there are no additional payments of rent or any other consideration
of any type payable by Subtenant to Tenant with regard to the Premises other
than as disclosed in the Sublease.
4.2 BROKERAGE COMMISSION. Tenant and Subtenant covenant and agree that
under no circumstances shall Landlord be liable for any brokerage commission or
other charge or expense in connection with the Sublease and Tenant and Subtenant
agree to protect, defend, indemnify and hold Landlord harmless from the same and
from any cost or expense (including but not limited to attorneys' fees) incurred
by Landlord in resisting any claim for any such brokerage commission.
4.3 CONTROLLING LAW. The terms and provisions of this Agreement shall
be construed in accordance with and governed by the laws of the State of
California.
4.4 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their heirs, successors and assigns. As used
herein, the singular number includes the plural and the masculine gender
includes the feminine and neuter.
4.5 CAPTIONS. The paragraph captions utilized herein are in no way
intended to interpret or limit the terms and conditions hereof, rather, they are
intended for purposes of convenience only.
4.6 PARTIAL INVALIDITY. If any term, provision or condition contained
in this Agreement shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term, provision or
condition to persons or circumstances other than those with respect to which it
is invalid or unenforceable, shall not be affected thereby, and each and every
other term, provision and condition of this Agreement shall be valid and
enforceable to the fullest extent possible permitted by law.
4.7 ATTORNEYS' FEES. If either party commences litigation against the
other for the specific performance of this agreement, for damages for the breach
hereof or otherwise for enforcement of any remedy hereunder, the parties hereto
agree to and hereby do waive any right to a trial by jury and, in the event of
any such commencement of litigation, the prevailing party shall be entitled to
recover from the other party such costs and reasonable attorneys' fees as may
have been incurred.
IN WITNESS WHEREOF, the parties have executed this Consent to Sublease
Agreement as of the day and year first above written.
"LANDLORD":
CARLYLE FORTRAN TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST
By: /s/ illegible
------------------------------------
Its: Vice President
-----------------------------------
"TENANT":
STEAG RTP SYSTEMS,
A Delaware corporation
------------------------------------
By: /s/ illegible
------------------------------------
Its: CEO
-----------------------------------
By:
------------------------------------
Its:
-----------------------------------
"SUBTENANT":
OPLINK,
A
------------------------------------
By: /s/ Xxxxxx Xxx
------------------------------------
Its: CEO
-----------------------------------
By:
------------------------------------
Its:
-----------------------------------
