LEASE AGREEMENT
1. PARTIES. The parties to this Lease Agreement (the "Lease") dated
May 23, 1979 are DEVCON INVESTMENT CO., a limited partnership organized under
the laws of the State of California (hereinafter referred to as "Landlord")
and FMC CORPORATION, a Delaware Corporation (hereinafter referred to as
"Tenant").
2. PROPERTY LEASED
A. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord upon the terms and conditions as set forth herein the
following property (hereinafter referred to as the "Premises"):
(1) SPACE. Approximately 48,666 square feet of space to be
contained within the concrete tilt-up building shown as outlined in red in
Exhibit A of this lease, together with exclusive rights over the parking
areas shown as marked, on exhibit A and non-exclusive rights of ingress and
egress over the common areas of the land.
(2) IMPROVEMENTS. The improvements to be constructed on the
Land as set forth in Paragraph 2B(1) "Improvements" below (the
"Improvements").
B. IMPROVEMENTS
(1) PLANS AND SPECIFICATIONS. Landlord agrees to construct
the building and appurtenances set forth in the plans and specifications
attached hereto as Exhibit "B" and to construct the Tenant interiors
(described in Exhibit "C") as directed by the Tenant. In addition to the
basic interior plan as shown and described in Exhibit C of this lease,
Landlord agrees that Tenant shall be allowed an additional amount of $44,000
which amount or portion thereof shall be used for additional interior
improvements. Such additional monies shall at the direction of Tenant, be
used for such general purpose improvements as interior partitioning and
doors, additional electrical and plumbing work, or additional HVAC work. In
the event that Tenant elects to have Landlord expend a portion or all of such
additional allowance, such amounts as are expended shall be amortized over a
7 year period at an interest rate of 10%, paid monthly as
additional rent. In the event that Tenant elects to exercise its second
option to renew the term of this lease as provided herein, the additional
(amortized amount) rental as herein calculated shall be added to the monthly
installment for purposes of calculating the increase in such monthly
installment to be paid during the 2nd option period. Costs of additional
Tenant interiors shall include all direct and indirect expenses relating to
the construction of said Tenant interiors together with a five percent (5%)
percentage for general and administrative expense and five percent (5%)
percentage for profit. Building, appurtenances and Tenant interiors are
hereinafter collectively referred to as "Improvements."
(2) TIME FOR CONSTRUCTION. Promptly following the execution
of this Lease by Tenant, Landlord shall apply and use its best efforts to
obtain the necessary building permits to allow the construction of the
Improvements. Promptly following the issuance of the necessary building
permits, Landlord shall commence construction in accordance with the plans
and specifications and shall attempt to complete construction by August 1,
1979. However, in the event that Landlord is unable to deliver possession of
such premises by August 1, 1979, Landlord shall diligently complete
construction of the Improvements and deliver possession of the Premises as
promptly as is practicable. (See Exhibit D)
3. TERM. The term of this Lease shall be for a period of two (2)
Lease Years. The term "Lease Years" as used therein shall be a period of
twelve (12) successive calendar months, except that if the term commences on
a day other than the first day of the calendar month, then the initial
fractional month together with the next succeeding twelve (12) calendar
months shall constitute the first Lease Year.
The term of this Lease shall commence upon the earliest of the
following occurrences ("Commencement Date"):
(a) The date of the completion of the Improvements, tender of
possession by written notice given to Tenant, and the issuance of a
Certificate of Occupancy.
(b) The date Tenant takes actual physical possession of the
Premises and the issuance of a Certificate of Occupancy.
(c) The date of the completion of the Improvements, including
utilities hookup (except landscaping and adjacent streets, curbs, and
gutters, providing however that suitable access and parking is provided),
tender of possession by written notice given to Tenant,
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tender of written guarantee by Landlord that uncompleted landscaping,
adjacent streets, curbs, and gutters will be completed within 90 days, and
the issuance by applicable governmental authorities of a Certificate of
Occupancy or such other authorizations as are required in order for Tenant to
enter into physical possession of the Premises. The date of completion of the
Improvements shall be the date upon which the construction of the
Improvements has been completed in substantial conformity with the plans and
specifications as set forth in Exhibits "B" and "C", a Notice of Completion
has been filed with the County Recorder of Santa Clara County, and a
Certificate of Occupancy or its equivalent (including a final building
inspection) concerning the Improvements has been issued by the appropriate
governmental agency.
4. USE OF PREMISES. Tenant shall use the Premises only for the
purposes for which they were designed, to wit: offices, administration,
engineering, personnel, research & development, and only in conformance with
applicable laws for any lawful activity including the manufacturing, storage
and distribution of electronic equipment and requisite office use therewith,
excluding manufacturing or storage activities outside of an enclosed
structure.
5. RENT.
A. BASIC. Tenant shall pay Landlord as rental the sums set
forth in subparagraph B below (the "Monthly Installment") each month in
advance on the first day of each month, commencing on the Commencement Date
and continuing through the term of this Lease, together with such additional
rents as are hereinafter specified. In the event that the Commencement Date
is not on the first day of a calendar month, the monthly rent payable on the
Commencement Date shall be equal to the product obtained by multiplying the
Monthly Installment by the quotient obtained by dividing thirty (30) into the
number of days remaining in such calendar month.
Said rental shall be paid by Tenant without deduction or offset,
prior notice or demand at such place or places as may be noticed from time to
time by Landlord, and Landlord agrees to accept as rental for the use and
occupancy of the Premises said amount.
B. MONTHLY INSTALLMENT. The Monthly Installment of rent
payable for the term of this lease shall be the sum of Twenty-three thousand
ninety-one Dollars ($23,091) per month. The first Monthly Installment shall
be due upon the signing of this Lease by all parties hereto.
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C. LATE CHARGES. In the event Tenant fails to pay the basic
rent or Additional Rent within five (5) days written notice of its being due,
Tenant agrees to pay a late charge of Five Hundred Dollars ($500) which is
not a penalty but Landlord and Tenant agree that in the event of a late
installment it would be impractical or extremely difficult to determine the
extra expenses caused Landlord by such late installment and therefore the
parties agree that said late charge of Five Hundred Dollars ($500) represents
a reasonable compensation to Landlord for such late installment. In no event
shall a late charge be assessed before the 5th day following the date upon
which written notice is given.
D. ADDITIONAL RENT. All taxes, charges, costs and expenses
which Tenant is required to pay hereunder, together with all interest and
penalties that may accrue thereon in the event of Tenant's failure to pay
such amounts, and all damages, reasonable costs, and expenses which Landlord
may incur by reason of any default of Tenant or failure on Tenant's part to
comply with the terms of this Lease, shall be deemed to be additional rent
("Additional Rent") and, in the event of non-payment by Tenant, Landlord
shall have all the rights and remedies with respect thereto as Landlord has
for the non-payment of the rent.
Any payment due from Tenant to Landlord, specifically including
but not limited to the Monthly Installment and Additional Rent (including
late charges), shall bear simple interest at the rate of ten percent (10%)
per annum from the due date thereof to the date of payment.
6. NO ABATEMENT OR TERMINATION OF RENT. It is the intention of the
parties that, except as specifically set forth in Article 17 entitled
"Condemnation" and Article 16 entitled "Damage and Destruction," Tenant
shall, in all months of the Lease Term, pay to Landlord the rent, Additional
Rent and all other sums required herein. Tenant's obligations and covenants,
specifically including, without limitation, Tenant's obligation to pay the
rent, Additional Rent and all other sums required herein, shall be absolute
and shall not be subject to any abatement, refund, termination, diminution or
reduction for any cause or reason whatsoever, save and except as set forth in
Articles 16 and 17. Tenant's obligations and covenants shall not be affected
or discharged by virtue of or because of any present or future governmental
laws, ordinances, or for any other cause or reason whatsoever.
7. SECURITY DEPOSITS. There shall be no security deposit.
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8. POSSESSION. Tenant agrees that in the event of the inability of
Landlord to deliver to Tenant possession of the Premises at the Commencement
Date, Landlord shall not be liable for any damages caused thereby, nor shall
this Lease be void or voidable, but Tenant shall not be liable for rents
until such time as Landlord tenders possession of said Premises to Tenant
completed in accordance with Exhibits "B" and "C" and the working drawings
approved by Tenant. (See Exhibit D) Landlord agrees to give Tenant 10 days
prior notice of the anticipated delivery of possession of the premises to
Tenant.
9. INSPECTION AND ACCESS. Tenant shall permit Landlord and Landlord's
agents to enter the premises with FMC Escort at all reasonable times for the
purposes of inspecting the same, or for the purpose of making repairs that
Tenant has neglected or refused to make in accordance with this Lease; and
also for the purpose of showing the same to persons wishing to lease at any
time within Ninety (90) days prior to the expiration of this Lease, or at any
reasonable time for the purpose of showing the Premises to a prospective
purchaser or lender.
10. TAXES AND OTHER CHARGES.
A. Tenant shall pay and discharge, punctually and when same shall
become due and payable without penalty, all real estate taxes, personal
property taxes, taxes based on vehicles utilizing parking areas in the
Premises, taxes computed or based on rental income (other than federal, state
and municipal income taxes), environmental surcharges, privilege taxes,
excise taxes, business and occupation taxes, gross sales and/or use taxes,
occupational license taxes, water and sewer charges, assessments (including,
but not limited to, its pro rata share of assessments for public improvements
or benefit; and all other governmental impositions and charges of every kind
and nature whatsoever, whether or not now customary or within the
contemplation of the parties hereto and regardless of whether the same shall
be extraordinary or ordinary, general or special, unforeseen or foreseen, or
similar or dissimilar to any of the foregoing (all of the foregoing being
hereinafter collectively called "Tax" or "Taxes") which, at any time during
the Lease Term, shall be applicable to the Premises or assessed, levied or
imposed upon the Premises or become due and payable and a lien or charge upon
the Premises, or any part thereof, under or by virtue of any present or
future laws, statutes, ordinances, regulations or other requirements of any
governmental authority whatsoever. The term
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"Environmental Surcharges" shall include any and all expenses, taxes, charge
or penalties imposed by the Federal Environmental Protection Agency, the
Federal Clean Air Act or any regulations promulgated thereunder, or any other
local, state or federal governmental agency or entity now or hereafter vested
with the power to impose taxes, assessments or other types of surcharges as a
means of controlling or abating environmental pollution in regard to the use,
operation or occupancy of the Premises. It is the intention of the parties
that Landlord shall be free from all such expenses and all such taxes and all
other governmental impositions and charges of every kind and nature
whatsoever. Nothing in this Lease contained shall require Tenant to pay any
franchise, estate, inheritance, transfer or excess profits tax imposed upon
Landlord; provided, however, that if at any time during the Lease Term there
should be levied, assessed and imposed (i) a tax, assessment, levy,
imposition or charge, wholly or partially as a capital levy or otherwise,
based or measured in whole or in part on the rent payable by Tenant under
this Lease, or (ii) a license fee measured by the rent payable by Tenant
under this Lease, or (iii) any other levy in lieu of or equivalent to any Tax
set forth in this Article 10, then all such taxes, assessments, levies, fees,
impositions, or charges shall be paid by Tenant and shall be deemed to be
included within the term "Tax" for the purposes hereof.
B. If by law any Tax is payable or may, at the option of the
taxpayer, be paid in installments, Tenant may whether or not interest shall
accrue on the unpaid balance thereof, pay the same, and any accrued interest
on any unpaid balance thereof, in installments as each installment becomes
due and payable, but in any event, before any fine, penalty, interest or cost
may be added thereto for non-payment of any installment or interest.
C. Any Tax relating to a fiscal period of a taxing authority, a
part of which is within the Lease Term and a part of which is subsequent to
the Lease Term, shall be apportioned and adjusted between Landlord and Tenant
based upon a 365-day year. Such apportionment shall be made whether or not
such Tax shall be assessed, levied, imposed, or shall become a lien upon the
Premises or shall become payable during the Lease Term. With respect to any
Tax for public improvements or benefits which by law is payable or, at the
option of the Landlord, may be paid in installments, Landlord shall pay the
installments thereof which become due and payable subsequent to the
expiration of the Lease Term; and Tenant shall pay all such installments
which become due and payable at any time during the Lease Term even though
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actual payment is postponed beyond the end of the Lease Term by Tenant.
D. Tenant shall furnish to Landlord five (5) days prior to the
last date when any Tax will become delinquent, official receipts or other
proof satisfactory to Landlord evidencing payment thereof, subject to
Paragraph E below.
E. Tenant shall have the right to contest or review the amount or
validity of any such Tax by appropriate legal proceedings (but which is not
to be deemed or construed in any way as relieving, modifying or extending
Tenant's covenant to pay any such Tax at the time and in the manner as
provided in this Article).
F. Any contest as to the validity or amount of any Tax or assessed
valuation upon which such Tax was computed or based, whether before or after
payment, shall be made by Tenant in Tenant's own name, or, if required by
law, in the name of Landlord or both Landlord and Tenant. Landlord shall
cooperate in any such contest, and Tenant shall indemnify and save harmless
Landlord from any and all costs or expenses, including attorney fees, in
connection with any such proceedings brought by Tenant. Tenant shall be
entitled to any refund of any such Tax and penalties or interest thereon
which have been paid by Tenant.
G. The certificate, advice or bill of the appropriate official
(designated by law to make or issue the same or to receive payment of any
such Tax) of the non-payment of any such Tax, shall be conclusive of the fact
that such Tax was due and unpaid at the time of the making or issuance of
such certificate, advice or bill.
H. In the event that Tenant shall fail to pay any such Tax or
other expense which might create a lien against the real property, required
to be paid after the same shall become due and payable, Landlord shall have
the right, at its option, to pay the same with all interest and penalties
thereon, and the amount so paid, with interest thereon from the date of such
payment at the rate of ten percent (10%) per annum, shall be deemed to be
Additional Rent hereunder and shall be due and payable by Tenant on the first
day of the month following the month in which payment by Landlord was made.
Landlord's right to make payment under this Paragraph H is a cumulative right
and shall not be construed to be a waiver of any other rights of Landlord
under law or under this Lease Agreement.
11. INSURANCE.
A. Landlord shall, during the Lease Term, at Tenant's sole
expense, procure
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and keep in force the following insurance coverage, subject to the ordinary
deductible amount of $1,000.00, which amount shall be Tenant's expense:
(1) "All Risk" coverage, including flood insurance but not
including earthquake insurance on the Improvements and all buildings,
improvements, building equipment and fixtures and personal property affixed
or attached to real property located on or in the Premises, including any
buildings or fixtures hereinafter constructed or installed thereon, in the
full amount of the replacement cost thereof. Such full replacement cost
shall be determined by mutual agreement annually, based on actual changes in
replacement cost, on or prior to the anniversary date of the Commencement
Date. If the parties are unable to agree on the full replacement cost, the
matter shall be resolved by arbitration administered by and in accordance
with the rules of the American Arbitration Association in San Jose,
California, provided that the arbitrators selected shall have at least ten
(10) years experience in the real estate appraisal or general contracting
business.
(2) Business interruption insurance insuring that one
hundred percent (100%) of the rent and other sums required to be paid by
Tenant hereunder will be paid to Landlord for a period of twelve (12) months
if the Improvements are destroyed or damaged by a risk insured against by the
"all risk" insurance described above.
B. Tenant shall, during the Lease Term, at Tenant's sole expense,
procure and keep in force the following insurance coverage, or self insure
for the following exposures, under the following terms:
(1) Plate glass insurance
(2) Comprehensive public liability insurance protecting
against any and all liabilities related to the condition, use or occupancy of
the Premises with limits of One Million Dollars ($1,000,000.00) for bodily
injury or death as a result of any one occurrence, and Five Hundred Thousand
Dollars ($500,000) for property damage as a result of any one occurrence. It
is agreed that the limits of insurance specified above are the minimum
amounts required by Landlord and the parties shall agree to revise such
limits from time to time to mutually agreed amounts to meet changed
circumstances, including, but not limited to, changes in purchasing power of
the dollar and changes indicated by the amount of plaintiff's verdicts in
personal injury actions in the county in which the Premises are located. If
the parties are unable
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to agree on the amount by which such limits are to be increased, the
controversy shall be resolved by arbitration administered by and in
accordance with the rules of the American Arbitration Associates in San Jose,
California, provided that the arbitrators selected shall have at least ten
(10) years experience in the liability insurance business.
C. All insurance policies or policies of self insurance required
under the provisions of this Article 11 which are to be acquired by Tenant,
shall name the Landlord, Tenant, and the beneficiary of any mortgage or deed
of trust secured by the Premises as insureds and all payments shall be made
as their interests appear.
D. All policies including policies of self insurance provided for
in this Article 11 which are to be acquired by Tenant, shall be in such form
and with such companies authorized to write insurance in the state in which
the Premises are located as may be approved by Landlord, which approval
Landlord agrees not to unreasonably withhold. Originals of the policies
provided for herein or, in the case of comprehensive public liability
insurance, certificates of insurance evidencing the policy provided for
herein, shall be delivered to Landlord and shall certify that the policy may
not be cancelled or altered without thirty (30) days prior written notice to
Landlord. The certificate required herein shall also certify that (i) the
coverage provided insures performance of the indemnity set forth in Article
12, and (ii) the coverage provided is primary and any coverage by Landlord is
in excess thereto.
E. In those situations whereby Landlord shall obtain and maintain
such insurance coverage and pay premiums therefor, all premiums so paid by
Landlord, together with interest thereon at the rate of ten percent (10%) per
annum from the 30th day following the billing of Tenant for such costs, shall
be deemed Additional Rent hereunder, and shall be paid by Tenant to Landlord
upon demand.
F. In the event that Tenant fails to obtain and maintain any
insurance or provide self insurance as required herein, Landlord may, but
shall not be obligated to, obtain and maintain such insurance coverage and
pay premiums therefor. All premiums so paid by Landlord, together with
interest thereon at the rate of ten percent (10%) per annum from the date of
such payment, shall be deemed Additional Rent hereunder, and shall be paid by
Tenant to Landlord upon demand. Any such expenses and damages shall bear
interest at the rate of ten percent (10%) per annum from the date that the
loss or damage occurs until paid by Tenant.
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12. INDEMNITY AND EXCULPATION. Tenant agrees to indemnify Landlord
and hold Landlord harmless except for the active negligence or willful
misconduct from any and all liability, loss, cost, expenses, attorneys' fees,
or obligations on account of, or arising out of the use, condition or
occupancy of the Premises, Tenant agrees to defend Landlord against any
litigation or threatened litigation relating to any incident relating to the
subject premises to which the Landlord is named as a defendant. It is
understood that Tenant is and shall be in control and possession of the
Premises and that except for the active negligence or willful misconduct
Landlord shall in no event be responsible or liable for any injury or damage
to any property of Tenant or any other person, or for damage or injury to any
other person whatsoever, happening on, in, about or in connection with the
premises, or for any injury or damage to the Premises or any part thereof.
This Lease Agreement is entered into on the express condition that except for
its active negligence or willful misconduct Landlord shall not be liable for,
or suffer loss by reason of, injury to person or property, from whatever
cause, which in any way may be connected with the use, condition or occupancy
of the premises or personal property therein or thereon, including without
limitation, any liability for injury to the person or property of Tenant,
Tenant's agents, officers, employees, invitees, or any other person. The
provisions of this Lease Agreement permitting Landlord to enter and inspect
the Premises are for the purposes of enabling Landlord to become informed as
to whether Tenant is complying with the terms of this Lease Agreement, and
Landlord shall be under no duty to enter and inspect or to perform any of
Tenant's covenants set forth in this Lease Agreement.
13. COMPLIANCE WITH LAWS AND REGULATIONS.
A. Tenant shall, at Tenant's sole cost, comply with all laws,
regulations, rules, orders, ordinances and requirements of all governmental
authorities (including, but not limited to, federal, state, county and city
governments and any department or agency thereof) now in force or which may
hereafter be in force, whether or not the same are now contemplated by the
parties pertaining to the use, condition, occupancy or occupational safety of
the Premises. The judgment of any court of competent jurisdiction after
final appeal or the admission of Tenant in any action or proceeding against
Tenant, whether Landlord be a party thereto or not, that Tenant has violated
any such law, requirement, rule, order, ordinance or regulation in the use,
condition or occupancy of the Premises shall be conclusive of the fact of
such violation by Tenant. Tenant
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shall indemnify and hold Landlord harmless from any and all liability or
obligation arising out of Tenant's failure to comply with any requirement,
law, rule, order, ordinance and regulation of any governmental agency now or
hereafter in force pertaining to the use, condition, occupancy or
occupational safety of the Premises.
14. UTILITIES. Tenant shall pay all utility charges and post
construction connection fees, including, but not limited to, water, gas,
light, heat, power, electricity, telephone or other communication service,
scavenger, trash pickup, sewer, air conditioning or any other service or
utility supplied to or consumed on the Premises, or any tax, fee, levy or
surcharge therefor.
15. ALTERATIONS, REPAIRS AND MAINTENANCE.
A. Tenant agrees that Tenant will not demolish or undertake any
structural alterations of the Improvements, or any part thereof, now existing
or hereafter erected upon the Premises, or make any other alterations which
would change the character of said Improvements or which would weaken or
impair the structural integrity or lessen the value of said Improvements, or
make any alterations, additions, enlargements or improvements thereof without
the prior written consent of Landlord, which shall not be unreasonably
withheld. As a condition for giving its consent, Landlord may require that
Tenant post a completion bond in amount (not to exceed the estimated
construction cost) and form specified by Landlord. As a further condition
for giving its consent, Landlord may require Tenant to agree to restore the
Premises to their original condition at the termination of this Lease.
B. Subject to the provisions of Article 16 relating to
destruction of or damage to the Premises, Tenant shall, at Tenant's own
expense, keep and maintain the entire Premises (excluding roofs and exterior
walls) including, without limiting the generality of the foregoing, the
interior, electrical wiring and connections, plumbing, sewer system, heating
and air conditioning installation, truck doors, storefront, and its pro-rata
share of the common area, sidewalks, landscaping and paving of the Premises
in good condition and repair, excepting ordinary wear and tear. The term
"repair" shall include replacements, restorations, and/or renewals when
necessary, as well as painting and decorating. Except as otherwise provided,
the Tenant's obligation shall extend to all alterations, additions and
improvements to the Premises, all fixtures and appurtenances therein and
thereto, all equipment thereof, including, but not limited to, all machinery,
pipes, plumbing, wiring, gas, steam and electrical fittings, sidewalks,
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paving, water, sewer and gas connections, heating equipment, air conditioning
equipment and machinery, and all other fixtures, machinery and equipment
belonging to or connected with the Premises. Landlord agrees to assume
responsibility for maintaining and repairing the five sprinkler systems but
Tenant shall be responsible for any costs associated with such maintenance or
repair. Tenant shall indemnify and save Landlord harmless against and from
all costs, resulting from Tenant's failure to comply with the foregoing: and
Tenant hereby expressly releases and discharges Landlord of and from any
liability therefor, except for that which results from the active negligence
or willful misconduct of Landlord.
C. Landlord shall, at the request of Tenant, assign to Tenant any
guarantees and warranties received from contractors or equipment suppliers
relating to the constructed or construction of the Improvements.
D. Tenant waives the provisions of any law requiring that
Landlord make repairs except as otherwise provided herein and further waives
the provisions of any law allowing Tenant to make repairs at the expense of
Landlord, except in the case of roof leaks. In the event that Tenant has
given Landlord reasonable notice as to a roof leak, and Landlord has not
responded within a reasonable time, tenant may make such emergency repairs as
are necessary to mitigate damage to premises or to Tenant's possessions
and/or equipment.
E. At the expiration of the term of this Lease, or upon sooner
termination as provided herein, Tenant shall surrender the Premises in good
condition and in as good order and condition as at the commencement of the
Lease Term, normal wear and tear excepted, and all carpeting shampooed and
vinyl floors cleaned and waxed. Nothing provided in this subparagraph shall
diminish or reduce Tenant's obligations under subparagraphs A through D above.
16. DAMAGE AND DESTRUCTION
A. If the Improvements are damaged or destroyed in whole or in
part from any cause (except condemnation), Landlord may, at its option:
(1) Rebuild the Premises to their prior condition, in which
event Tenant agrees that the proceeds of any all insurance policies required
hereinabove shall be applied to the cost of rebuilding. In the event the
insurance proceeds exceed the cost of rebuilding, Landlord shall be entitled
to receive the excess.
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(2) Terminate the Lease provided that the rebuilding cannot
be accomplished within one hundred fifty (150) days after the date of damage
or terminate the Lease should there be no insurance proceeds available for
reconstruction. Provided, however, that in the event that insurance proceeds
are insufficient to rebuild the premises, Tenant may, at Tenant's option, pay
to Landlord in cash no later than the date of commencement of construction
the difference between the insurance proceeds and the contracted cost of
rebuilding, in which case Landlord agrees to rebuild the premises.
(3) Notwithstanding the provisions of paragraphs (1) and (2)
above, Tenant may, by giving Landlord sixty (60) days prior written notice,
terminate the Lease if the Improvements cannot be replaced or restored within
one hundred fifty (150) days after the date of damage.
B. If Landlord does not give tenant notice in writing within
thirty (30) days from the damage or destruction of the Improvements of
Landlord's election to rebuild them, Landlord shall be deemed to have elected
to rebuild the premises and continue the Lease. Tenant hereby expressly
waives the provisions of any law requiring Landlord to make such repairs, or
of any law allowing the Tenant to make such repairs at Landlord's expense
and, without limiting the foregoing, Tenant specifically waives any statutes
which permit Tenant to terminate this Lease upon destruction or to make
repairs at the expense of Landlord.
C. In the event of damage or destruction, whether from an insured
or uninsured casualty, the rent otherwise payable hereunder shall be abated
for the period commencing with the date of damage or destruction and ending
with (1) the date of completion of the repair or restoration, if the Lease is
not terminated or (2) the date of termination of the Lease. The amount of the
abatement shall be in proportion to the square footage of the premises
damaged or destroyed by the casualty.
17. CONDEMNATION.
A. DEFINITION OF TERMS. For the purpose of this Lease the term:
(1) "Taking" means a taking of the Premises or damage thereto
related to the exercise of the power of eminent domain by any agency,
authority, public utility, persons or corporate entity empowered to condemn
property.
(2) "Total Taking" means the taking of the entire Premises or
so much
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of the Premises as to prevent or substantially impair the use thereof by
Tenant for the uses herein specified, but in no event shall Total Taking be
less than twenty percent (20%) of the Premises.
(3) "Partial Taking" means the taking of only a portion of
the Premises which does not constitute a Total Taking.
(4) "Date of Taking" means the date upon which title to the
Premises, or a portion thereof, passes to and vests in the condemnor or the
effective date of any order for possession if issued prior to the date title
vests in the condemnor.
(5) "Award" means the amount of any award made, consideration
paid, or damages ordered as a result of a Taking.
B. RIGHTS. The parties agree that in the event of a Taking all
rights between them or in and to an Award shall be as set forth herein and
Tenant shall have no right to any Award except as set forth herein. Except
as otherwise provided herein and unless and until the Lease is terminated
pursuant to the provisions of this Lease, Tenant shall continue to pay to
Landlord all rent required in this Lease, and Tenant shall faithfully keep
and observe all other terms, conditions, and covenants of this Lease, all
without any claim for any abatement, refund, diminution or reduction or other
expense whatsoever, and there shall be no abatement of rent whatsoever due to
the commencement or threat of commencement of condemnation proceedings or due
to any other cause whatsoever (except as provided in Paragraphs C and D
below).
C. TOTAL TAKING. In the event of a Total Taking during the term
hereof (i) the rights of Tenant in and to the Premises shall cease and
terminate as of the Date of Taking, (ii) Landlord shall refund to Tenant any
prepaid rent, (iii) Tenant shall pay to Landlord any rent or charges due
Landlord under the Lease each prorated as of the Date of Taking, (iv) Tenant
shall be entitled to moving expenses, relocation allowances, business
interruption expenses, and amounts for trade fixtures which have not become
affixed to and become part of the real property, if separately awarded, and
any other amounts separately awarded Tenant, (v) the remainder of the Award
shall be paid to and be the property of Landlord.
D. PARTIAL TAKING. In the event of a Partial Taking during the
term hereof, (i) the rights of Tenant under the Lease and the leasehold
estate of Tenant in and to the portion of the Premises taken shall cease and
terminate as of the Date of Taking, (ii) the remainder of the Award shall be
paid to and be the property of Landlord, (iii) Tenant shall be entitled to
amounts
14
for Trade Fixtures which have not become affixed to and become a part of the
real property, if separately awarded, (iv) Tenant shall comply with the
provisions of subparagraph E hereof, and (v) from and after the Date of
Taking the Minimum Rent shall be reduced in the proportion that the building
area of the portion of the Premises taken bears to the total building area of
the Premises prior to the Taking. The value of the Award shall be the total
amount of the Award minus any portion of the Award for consequential damages
minus any portion of the Award attributable to Trade Fixtures of the Tenant.
E. In the event of a Partial Taking, Landlord shall have the
option to either (a) terminate the Lease, in the case where 30% or more of
the building area is taken or (b) within forty-five (45) days after receipt
of the Award proceed to rebuild, repair and restore the remainder of any
building on the Premises affected thereby to a complete independent and
self-contained architectural unit. In the event the Partial Taking causes
the Premises to be reduced in such a manner that the Tenant is unable to
utilize said Premises for the use intended, then Tenant may terminate this
Lease within forty-five (45) days after receipt of the Award upon written
notice to Landlord as more specifically set forth under Article. 21.
18. SUBORDINATION.
A. This Lease and all rights of Tenant under this Lease are and
shall, at the option of Landlord, be subject and subordinate to any mortgage
(including a consolidated mortgage) or deed of trust, which may now or
hereafter effect the Premises, or any part thereof, and to any and all
renewals, modifications, consolidations, replacements and extensions of any
such mortgage or deed of trust.
B. Subject to Paragraph A above, Tenant shall, upon Landlord's
request, execute within fifteen (15) working days following such request (1)
any instrument of subordination presented by Landlord to Tenant necessary to
subordinate this Lease to any such mortgage or deed of trust to be placed on
the Premises, or any part thereof by Landlord and (2) any amendment to this
Lease requested by the lender providing initial permanent financing for the
Improvements provided that any such amendment does not materially affect the
rights of Tenant under this Lease.
19. DEFAULT
A. Upon the breach of this Lease by Tenant or upon any Event of
Default (as
15
defined in this Lease), Landlord shall have the following remedies, in
addition to all other rights and remedies provided by law, to which Landlord
may resort cumulatively, or in the alternative:
(1) Landlord may at Landlord's election reenter the Premises,
and without terminating this Lease, and at any time from time to time, relet
the Premises or any part or parts of them for the account and in the name of
Tenant or otherwise. Landlord may at Landlord's election eject Tenant or any
of Tenant's subtenants, except subtenants approved in writing by Landlord,
assignees, or other persons claiming any right under or through this Lease.
Tenant shall nevertheless pay to Landlord on the due dates specified in this
Lease all the sums required of Tenant under this Lease, less the proceeds of
any sublease or reletting. The expenses allowed Landlord shall include
without limitation: costs paid to retake possession and reasonable costs to
place the Premises in its original condition, costs to secure new tenants
(including broker's commissions) and costs to fulfill all of Tenant's
covenants and conditions to the end of the term. No act by or on behalf of
Landlord under this subparagraph (1) shall constitute a termination of this
Lease unless Landlord gives Tenant written notice of termination.
(2) Landlord shall be entitled, at Landlord's election, to
keep the Lease in full force and effect and to enforce all of its rights and
remedies under the Lease, including the right to recover the rent and other
sums as they become due, plus interest at the rate of ten percent (10%) per
year from the due date of each installment of rent or other sum until paid.
(3) Landlord may, upon default or breach by Tenant, at
Landlord's election, terminate this Lease by giving Tenant 30 days written
notice of termination. On the giving of the notice, all of Tenant's rights
in the Premises and in the leasehold estate shall terminate. Promptly after
notice of termination, Tenant shall surrender and vacate the Premises in
broom-clean condition, and Landlord may reenter and take possession of the
Premises and eject Tenant or any of Tenant's subtenants and/or assignees,
except subtenants and/or assignees approved in writing by Landlord, or other
person or persons claiming any right under or through Tenant or eject some
and not others or eject none. This Lease may also be terminated by a
judgment specifically providing for termination. Any termination under this
paragraph shall not relieve Tenant from the payment of any sum then due to
Landlord or from any claim for breach, damages or rent previously accrued.
In no event shall any one or more of the following actions by Landlord
constitute a termination of this Lease:
16
(i) Maintenance, or restoration, or preservation of the
Premises;
(ii) Efforts to relet the Premises;
(iii) Appointment of a receiver in order to protect
Landlord's interest hereunder;
(iv) Consent to any subletting of the Premises by
Tenant, whether pursuant to provisions hereof with concern to subletting or
otherwise;
(v) Any other action by Landlord or Landlord's agents
intended to mitigate the adverse effects of any breach of this Lease by
Tenant.
(4) In the event of termination pursuant to subparagraph (3),
Landlord shall be entitled at Landlord's election to damages in the following
sums:
(i) The worth at the time of the award of the unpaid
rent which has been earned at the time of termination; plus
(ii) The worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental that Tenant proves could be reasonably
avoided; and
(iv) Any other amount necessary to compensate Landlord
for all detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which in the ordinary course of things would
be likely to result therefrom including without limitation the following: (1)
Expenses for cleaning, repairing and restoring the Premises; (2) Expenses for
repairing and repainting and otherwise restoring the Premises for the purpose
of reletting, (whether such be funded by a reduction of rent, direct payment
or allowance to tenant, or otherwise); (3) broker's fees, attorneys' fees,
advertising costs and other expenses of reletting the Premises; (4) Costs of
carrying the Premises such as repairs, restoration, maintenance, taxes and
insurance premiums, utilities and security precautions; (5) Expenses in
retaking possession of the Premises; and (6) Attorneys' fees and court costs.
(v) The "worth at the time of Award" of the amounts
referred
17
to in subparagraphs (i) and (ii), above, is computed by allowing interest at
the rate of ten percent (10%) per annum, unless previously calculated herein.
The "worth at the time of Award" of the amount referred to in subparagraph
(iii) above, is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of Award plus one
percent (1%).
B. A breach of this Lease shall exist if any of the following
events (severally "Event of Default" and collectively "Events of Default")
shall occur:
(1) Default shall have occurred in the payment of rent or
other payment not made upon the date due; (See Exhibit D)
(2) Tenant shall have assigned its assets for the benefit of
its creditors; or
(3) The sequestration or attachment of, or execution on, any
substantial part of the property of Tenant or on any property essential to
the conduct of Tenant's business shall have occurred and Tenant shall have
failed to obtain a return or release of such property within thirty (30) days
thereafter, or prior to sale pursuant to such sequestration, attachment or
levy, whichever is earlier; or
(4) Tenant shall have abandoned or vacated the Premises; or
(5) Tenant shall have failed to perform any term, covenant or
condition contained in this Lease other than nonpayment of monies due
Landlord, where such failure shall not have been cured within fifteen (15)
business days after written notice of such failure; provided that if the
failure cannot be reasonably cured within said fifteen (15) day period,
Tenant shall not be in default if it commences the cure within said ten (10)
day period and diligently prosecutes the cure to completion; or
(6) A court having jurisdiction shall have made or entered
any decree or order; (a) adjudging Tenant to be bankrupt or insolvent; (b)
approving as properly filed a petition seeking reorganization of Tenant or an
arrangement under the bankruptcy laws or any other applicable debtor's relief
law or statute of the United States or any State thereof; (c) appointing a
receiver, trustee or assignee of Tenant in Bankruptcy or insolvency or for
its property; or (d) directing the winding up or liquidation of Tenant; and
such decree or order shall have continued for a period of thirty (30) days;
or Tenant shall have voluntarily submitted to or
18
filed a petition seeking any such decree or order.
20. HOLDING OVER. This Lease shall terminate without further notice
at the expiration of the Lease Term. Any holding over by Tenant after
expiration shall not constitute a renewal or extension or give Tenant any
rights in or to the Premises except as expressly provided in this Lease. Any
holding over after the expiration with the consent of Landlord shall be
construed to be a tenancy from month to month, at one hundred twenty-five
percent (125%) of the existing Rent, and shall otherwise be on the terms and
conditions herein specified insofar as applicable.
21. NOTICES. Any notice required or desired to be given under this
Lease shall be in writing with copies directed as indicated below and shall
be personally served or given by mail. Any notice given by mail shall be
deemed to have been given when forty-eight (48) hours have elapsed from the
time which such notice was deposited in the United States mail, certified or
registered and postage prepaid, addressed to the party to be served with a
copy as indicated herein at the last address given by that party to the other
party under the provisions of this part. At the date of execution of this
Lease, the address of Landlord is:
Devcon Investment Company
425 Lakeside Drive
Sunnyvale, California 94086
with a copy to:
and the address of Tenant is:
FMC CORPORATION
1105 Coleman Avenue
San Jose, California 95108
22. NONASSIGNMENT. Tenant's interest in this Lease is not assignable,
by operation of law or otherwise, nor shall Tenant have the right to sublet
the Premises, transfer any interest of Tenant's therein or permit any use of
the Premises by another party without the prior written consent of Landlord,
which consent Landlord agrees not to unreasonably withhold. A consent to one
subletting, occupation or use by another party shall not be deemed to be a
consent to any subsequent subletting, occupation or use by another party.
Any or subletting without such
19
consent hall be void and shall, at the option of Landlord, terminate this
Lease.
Landlord's waiver or consent to any subletting hereunder shall not
relieve Tenant from any obligation under this Lease unless the consent shall
so provide.
23. SUCCESSORS. The covenants and agreements contained in this Lease
shall be binding on the parties hereto and on their respective successors.
24. MORTGAGEE PROTECTION. In the event of any default on the part of
Landlord, Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgagee of a mortgage, encumbering the
Premises whose address shall have been furnished it, and shall offer such
beneficiary or mortgagee a reasonable opportunity to cure the default,
including time to obtain possession of the Premises by power of sale or
judicial foreclosure, if such should prove necessary to effect a cure.
25. LANDLORD LOAN OR SALE. Tenant agrees promptly but no later than
fifteen (15) days following request by Landlord to (A) execute and deliver to
Landlord any documents, including estoppel certificates presented to Tenant
by Landlord, (i) certifying that this Lease is unmodified and in full force
and effect, or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect and
the date to which the rent and other charges are paid in advance, if any, and
(ii) acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or if there are uncured defaults,
stating the nature and status of such defaults, and (iii) evidencing the
status of the Lease as may be required either by a lender making a loan to
Landlord to be secured by deed of trust or mortgage covering the Premises or
a purchaser of the Premises from Landlord and (B) to deliver to Landlord the
current financial statements of Tenant certified by Tenant to be true and
correct, including a balance sheet for the most recent prior fiscal year all
prepared in accordance with generally accepted accounting principles
consistently applied. The only financial statement that Tenant shall be
required to deliver to Landlord pursuant to this clause shall be a current
balance sheet with the opinion of a certified public accountant, if
available, and Tenant shall only be required to deliver such financial
statement when Landlord is engaged in negotiations for a bona fide sale or
refinancing of the Premises. Tenant's failure to deliver an estoppel
certificate promptly following such request shall be conclusive upon Tenant
(a) that this Lease is in full force and effect, without modification except
as may be represented by Landlord, (b) that there are now no uncured
20
defaults in Landlord's performance and (c) that no rent has been paid in
advance except those that are set forth in this Lease.
26. SURRENDER OF LEASE NOT MERGER. The voluntary or other surrender
of this Lease by Tenant, or a mutual cancellation thereof, shall not work a
merger and shall, at the option of Landlord, terminate all or any existing
subleases or subtenants, or operate as an assignment to Landlord of any or
all such subleases of subtenants.
27. WAIVER. The waiver of Landlord or Tenant of any breach of any
term, covenant or condition herein contained shall not be deemed to be a
waiver of such term, covenant or condition on any subsequent breach of the
same or any other term, covenant or condition herein contained.
28. WASTE, QUIET CONDUCT AND ENJOYMENT. Tenant shall not commit, or
suffer to be committed, any waste upon the Premises, or any nuisance, or
other acts or things which may disturb, the quiet enjoyment of any occupants
of neighboring properties. Landlord shall not unlawfully disturb the quiet
enjoyment of Tenant.
29. SIGN. Tenant shall not place or permit to be placed any sign or
decoration on the land or the exterior of the building, including the roof,
without the prior written consent of Landlord. Tenant, upon notification by
Landlord shall immediately remove any sign or decoration that Tenant has
placed or permitted to be placed without the prior written consent of
Landlord, and if Tenant fails to so remove such sign or decoration within
five (5) days after Landlord's request, Landlord may enter upon the Premises
and remove said sign or decoration and Tenant agrees to pay to Landlord, as
additional rent, the cost of such removal.
30. WAIVER OF SUBROGATION. Landlord hereby releases Tenant and Tenant
hereby releases Landlord and their respective officers, agents, employees and
servants, from any and all claims and demands for damage, loss, expense or
injury to the Premises, or to the furnishings and fixtures and equipment or
inventory or other property of either Landlord or Tenant in, about, or upon
the Premises, as the case may be, which is caused by or results from perils,
events or happenings which are the subject of insurance carried by the
Landlord or Tenant and in force at the time of any such loss; provided,
however, that such waiver shall be effective only to the extent permitted by
the insurance covering such loss and to the extent such insurance is not
prejudiced thereby or the expense of such insurance is not thereby increased.
21
31. OPTION TO RENEW.
A. Provided that Tenant is not in default under the terms of this
Lease at the time of the option exercise, Tenant shall have two (2)
consecutive options to renew the term of this Lease, the first option being
for the term of one (1) additional year, and the second option being for the
term of three (3) additional years. Each of said options shall be exercised
only by written notice delivered to Landlord at least ninety (90) days prior
to the then effective expiration dates of the respective Lease terms. In all
respects, the terms, covenants and conditions of this Lease shall remain
unchanged during the option periods, except that the rental amount shall be
adjusted at the commencement of the second option period in accordance with
paragraph B below.
B. For purposes of adjusting the rental amount during the second
option period, the following shall apply:
(1) "INDEX" shall mean the consumer price index for all urban
consumers for the San Francisco/Oakland metropolitan areas as published by
the United States department of Labor, Bureau of Labor Statistics (1967 = 100
Base).
(2) "INITIAL INDEX" shall mean the index most recently preceding
the commencement date of the Lease term hereof.
(3) "OPTION INDEX" shall mean the index most recently preceding
the commencement of the second option period.
Commencing with the first day of the second option period of this lease,
the monthly installment shall be increased to the sum equal to the product
obtained by multiplying the monthly installment paid during the initial term
of the lease hereof by the quotient obtained by dividing the Index at the
commencement of the 1st month of the lease term hereof into the Option Index,
provided, however, that in no event shall the monthly installment paid during
the second option period be more than 118% of the monthly installment paid
during the initial term of the lease hereof, or less than the monthly
installment paid during the initial term month of the lease hereof.
If, at the commencement of the Option Period, the Department of Labor is
not maintaining such Consumer Price Index tables, then the percentage of base
so indicated by the
22
United States government tables then most nearly corresponding thereto, shall
be used for computing the increase in the monthly installment.
32. GENERAL.
A. The paragraph headings used in this Lease are for the purposes
of convenience only. They shall not be construed to limit or extend the
meaning of any part of this Lease.
B. The term Landlord as used in this Lease, so far as the
covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner at the time in question of the fee
title of the Premises, and in the event of any transfers or transfers of the
title of such fee, the Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall after the date of such
transfer or conveyance be automatically freed and relieved of all liability
with respect to performance of any covenants or obligations on the part of
Landlord contained in this Lease, thereafter to be performed; provided, that
any funds in the hands of Landlord or the then grantor at the time of such
transfer, in which Tenant has an interest, shall be turned over to the
grantee. It being intended that the covenants and obligations contained in
this Lease on the part of Landlord shall, subject as aforesaid, be binding
upon each Landlord, its heirs, personal representatives, successors and
assigns only during its respective period of ownership.
C. Any executed copy of this Agreement shall be deemed an
original for all purposes.
D. Time is of the essence for the performance of each term,
covenant and condition of this Lease.
E. In case any one or more of the provisions contained herein,
except for the payment of rent, shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not effect any provision of this Lease, but this Lease
shall be construed as if such invalid, illegal or unenforceable provision had
not been contained herein. This Lease shall be construed and enforced in
accordance with the laws of the State of California.
F. Whenever the lessor's prior consent, approval or permission is
referred to herein as a condition or requirement, same shall not be
unreasonably withheld.
23
G. All references to attorney's fees, costs and expenses herein
shall be deemed to be reasonable attorney's fees, costs and expenses.
H. Landlord's liability under the terms of this Lease insofar as
such liability relates to the obligation of Landlord to perform under the
terms and conditions herein contained shall be limited to the net worth of
the partnership so long as such net worth is equal to or better than that
which exists at the present time, and shall not extend to the personal assets
of the individuals hereunder.
I. The undersigned parties hereby warrant that they have proper
authority and are empowered to execute this lease on behalf of the Landlord
and Tenant respectively.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates set forth below.
LANDLORD
DEVCON INVESTMENT COMPANY
a Limited Partnership
/s/ Authorized Signatory
--------------------------------------
By: /s/ Authorized Signatory
--------------------------------------
--------------------------------------
General Partners
TENANT
FMC CORPORATION
a Delaware Corporation
By: /s/ Authorized Signatory
--------------------------------------
[MAP]
[MAP]
24
EXHIBIT D
SUPPLEMENTAL TERMS & CONDITIONS TO
LEASE AGREEMENT BETWEEN DEVCON INVESTMENT COMPANY
AND FMC CORPORATION
LEASE DATED 23 DAY OF MAY, 1979
The following Terms and Conditions are incorporated into subject Lease and
made a part thereof, and in the event of inconsistency, shall prevail
thereover:
1. Notwithstanding any provisions of the Lease, the Tenant shall have
approval authority over issuance of or changes to the reasonable rules
and regulations applicable to common areas, which approval shall not be
unreasonably withheld by the Tenant.
2. The parties to this Lease recognize and agree that there shall not be any
common areas within the leased Premises.
3. POSSESSION
A. If the Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to the Tenant on or before September 1, 1979,
this Lease shall not be void or voidable except at the sole option of
the Tenant, nor shall the Landlord be liable to the Tenant for any loss
or damages resulting therefrom; but in that event, the commencement and
termination dates of the Lease and all other dates effected thereby
shall be extended to conform to the date of the Landlord's delivery of
possession.
B. Notwithstanding the above and without any acceleration of the term
of the Lease, the Landlord agrees that the Tenant shall have the right
to possession of the leased Premises earlier than August 1, 1979 in the
event the Landlord improvements as provided in Exhibit B and C to this
Lease are completed prior to that date. Such early possession,
occupancy and use of the premises shall be subject to payment of an
additional charge of one day's rent for each day of early occupancy as
an incentive and bonus for early completion.
C. Notwithstanding the provision of the Lease entitled "Time for
Construction", the parties agree that in the event possession of the
leased Premises is not delivered to Tenant on or before August 1, 1979,
the Tenant shall be granted one day's rent-free use of leased Premises
for each day of delay in gaining possession after August 1, 1979 up to a
maximum of 30 days. This
rent-free use, prorated over a thirty-day month, shall be credited
against the first month's rental charge.
4. CREDIT AGAINST FIRST MONTH'S RENTAL CHARGES
The parties to this Lease recognize and agree that the $5,000 deposit given
at the time of execution of the intent to Lease letter of May 11, 1979 and
the deposit of $18,091 made by Tenant with the execution of this Lease
shall be credited against the first month's rental charge.
5. TAXES
A. Notwithstanding the provisions of paragraph 10, if any general or
special assessment is levied and assessed against the Premises, Landlord
can elect to either pay the assessment in full or allow the assessment to
go to bond. If Landlord pays the assessment in full, Tenant shall pay to
Landlord each time a payment of real property taxes is made a sum equal to
that which would have been payable (as both principal and interest) had
Landlord allowed the assessment to go to bond.
B. Tenant's liability to pay real property taxes shall be prorated on the
basis of a 365-day year to account for any fractional portion of a fiscal
tax year included in the term of its commencement and expiration.
C. Landlord shall use its best efforts to cause the Premises to be
separately assessed from other real property owned by Landlord. If
Landlord is unable to obtain a separate assessment, the assessor's
valuation placed on the building and other improvements that are a part of
the Premises shall be used in determining the real property taxes. If this
valuation is not available, the parties shall equitably allocate the real
property taxes between the building and other improvements that are a part
of the Premises and all buildings and other improvements included in the
tax bill. In making the allocation, the parties shall reasonably evaluate
the factors that determine the amount of real property taxes so that the
allocation to the building and other improvements that are a part of the
Premises will not be less than the ratio that the total number of square
feet of the building and other improvements that are a part of the Premises
bears to the total number of square feet in all buildings and other
improvements included in the tax bill.
Real property taxes attributable to land relating to the Premises
shall be determined on the basis of the separate tax bill reflecting the
value of the land upon which the subject premises shall have been
constructed.
26
6. INSURANCE
Tenant's liability to pay any insurance provided for within the Lease shall
be prorated on the basis of a 365-day year to account for any fractional
portion of a fiscal insurance billing year included in the term at its
commencement and expiration.
27
May 23, 1979
Agreement between FMC Corporation and Devcon Investment Company relative to
excess parking
Relating to that certain Lease between FMC Corporation and Devcon Investment
Company such Lease dated May 23, 1979 pertaining to the premises located on
the southeast corner of Brokaw Road and Bering Drive in the City of San Jose,
it is hereby agreed between Devcon Investment Company and FMC Corporation
that Devcon Investment Company shall allow FMC Corporation the rent-free use
of approximately one acre of land for purposes of accommodating an additional
120 cars, and such rent-free use shall extend for a period coterminous with
the basic lease term described in the subject Lease (i.e., two calendar
years). The consideration for Devcon's allowing FMC to use the subject land
shall be the commitment from FMC Corporation to spend an amount not to exceed
$70,000 for purposes of preparing the subject site for parking according to
the plans and specifications developed and designed by Devcon Investment
Company. FMC Corporation shall not be responsible for any costs in excess of
$70,000, and shall be responsible for only the actual costs up to such level.
At the end of the initial term of two years, FMC Corporation shall release
Devcon from any further obligations relating to the subject parking are and
shall have no further interest in the property. At the expiration of the
subject two-year period, it is the express intent of Devcon Investment
Company to construct an industrial building on the subject parking site in
which in the absence of further agreements with FMC Corporation, FMC
Corporation shall have no interest.
In the event that FMC Corporation chooses to have constructed on the subject
parking site, the improvements related to paving, curbs and gutters, etc., it
shall inform Devcon of its desire, and Devcon shall prepare a set of working
drawings showing the subject improvements. Upon the approval of FMC
Corporation Devcon shall estimate the cost of such improvements whereupon FMC
Corporation shall deposit with Devcon Investment Company the entire sum of
the estimated cost of such improvements. In the event that the estimate
exceeds the actual cost, the difference shall be rebated to FMC Corporation
immediately upon the completion of the subject improvements.
DEVCON INVESTMENT COMPANY FMC CORPORATION
By /s/ Authorized Signatory By /s/ Authorized Signatory
------------------------------- ------------------------------
General Partner
By /s/ Authorized Signatory
-------------------------------
General Partner
By
-------------------------------
General Partner
May 23, 1979
Letter of Agreement relating to option to lease and a right of first refusal
It is hereby agreed between tenant and landlord under that certain lease
dated May 23, 1979 between FMC Corporation as Tenant and Devcon Investment
Company as Landlord such lease pertaining to the premises located on the
southeast corner of Brokaw Road and Bering Drive in the City of San Jose,
that Tenant shall be granted an option to lease and a right of first refusal
to lease the adjacent building consisting of approximately 48,694 sq. ft.
located on the parcel of land which is shown as outlined in red on the
attached exhibit. FMC shall have the option to lease said premises from
Devcon for a period of thirty (30) days from the execution of the lease as
noted above and a right of first refusal to lease said premises for a period
of fifteen (15) days subsequent to the expiration of the option period.
The option or the right of first refusal shall be exercised on the basis of
the same terms and conditions as the lease noted above insofar as such terms
and conditions are reasonably applicable except that the monthly rental shall
be based upon .475 per sq. ft. per month modified net, multiplied by the
number of square feet within such building (48,694).
In the event that Devcon Investment Company gets an offer from a third party
relative to leasing the subject premises, within the right of first refusal
period, FMC shall have five (5) days in which time to commit itself to
leasing the subject premises on the terms previously specified. In the event
that FMC either declines to lease the subject premises within the time period
or does not respond to the information from Devcon Investment Company within
the specified time, then Devcon Investment Company shall be free to dispose
of the subject premises in any manner that it sees fit without any further
liability to FMC Corporation.
DEVCON INVESTMENT COMPANY FMC CORPORATION
By /s/ Authorized Signatory By /s/ Authorized Signatory
------------------------------- ------------------------------
General Partner
By /s/ Authorized Signatory
-------------------------------
General Partner
By
-------------------------------
General Partner
[MAP]
AMENDMENT TO LEASE
THIS AMENDMENT NO. 1 TO LEASE is made and entered into this 25th day of
November, 1985 by and between SANTA CLARA PROPERTY ASSOCIATES, a California
general partnership, as successor to the original Lessor, DEVCON INVESTMENT
COMPANY, a California limited partnership, as Lessor, and FMC CORPORATION, a
Delaware corporation, a Lessee.
RECITALS
A. WHEREAS, by Lease dated May 23, 1979, Lessor leased to Lessee
approximately 48,666 plus square feet of that certain building
located at 150 Brokaw Road, San Jose, California, the details of which are
more particularly set forth in said Lease Agreement, and,
B. WHEREAS, said May 23, 1979 Lease Agreement, terminates August 31,
1985 and
C. WHEREAS, it is now the desire of the parties hereto to amend said
Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
l. INCREASED TERM:
EFFECTIVE November 1, 1985, the term of Lease shall be extended for
an additional 15 month period commencing November 1, 1985 and terminating
January 31, 1987, upon the same term and conditions as said May 23, 1979
Lease Agreement, except for the Basic Monthly Rental which shall be adjusted
as set forth in Paragraph 2 below.
2. RENTAL:
On November 1, 1985, the sum of $9,538.54 shall be due as Basic
Monthly Rental. On December 1, 1985, the sum of $51,099 shall be due, and a
like sum on the first day of each month thereafter for the next twelve months
of the Lease. On December 1, 1986, the sum of $53,533 shall be due, and a
like sum due on the first day of each month thereafter for the remaining term
of the Lease, as extended by the Amendment No. 1 to Lease, or until the
entire additional aggregate rental of $729,793 has been paid.
OPTION TO RENEW
A. Provided that Tenant is not in default under the terms of this
Lease at the time of the option exercise, Tenant shall have two (2)
consecutive options to renew the term of the Lease, the first option being
for the term of one (1) additional year, and the second option being for the
term of one (1) additional year. Each of said options shall be exercised
only by written notice delivered to Landlord at least ninety (90) days prior
to the then effective expiration dates of the respective Lease terms. In all
respects, the terms, covenants and conditions of this Lease shall remain
unchanged during the option periods; except that the rental amount shall be
adjusted at the commencement of the second option period in accordance with
paragraph B below.
B. For purposes of adjusting the rental amount during each option
periods, the following shall apply:
(1) "Index" shall mean the consumer price index for all urban
consumers for the San Francisco/Oakland metropolitan areas as published by
the United States department of Labor, Bureau of Labor Statistics (1967 = 100
Base).
(2) "Initial Index" shall mean the index most recently
preceding the commencement date of the Lease term, as amended, hereof.
(3) "Option Index" shall mean the index most recently preceding
the commencement of each option period.
Commencing with the first day of each option period of this
lease, the monthly installment shall be increased to the sum equal to the
product obtained by multiplying the current monthly installment by the
quotient obtained by dividing the Index at the commencement of the 1st month
of the lease term hereof into the option Index, provided, however, that in no
event shall the monthly installment paid during each option period be more
than 108% or less than 105% of the monthly installment paid prior to
exercising the option.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants and
conditions of said Lease Agreement shall remain in full force and effect for
the full remaining term thereof.
If, at the commencement of the option period, the Department of
Labor is not maintaining such Consumer Price Index tables, then the
percentage of base so indicated by the
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United States government table then most nearly corresponding thereto, shall
be used for computing the increase in the monthly installment.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment No. 1
as of the day and year first hereinabove set forth.
LESSOR LESSEE
SANTA CLARA PROPERTY ASSOCIATES FMC CORPORATION
a California General Partnership a Delaware corporation
By: By:
/s/ RICHARD B. HOWARD /s/ AUTHORIZED SIGNATORY
------------------------------ -----------------------------
Richard B. Howard
Vice President
/s/ JERRY L. DAVIDSON 12/11/85
------------------------------
Jerry L. Davidson
Vice President
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AMENDMENT TO LEASE
This is Amendment to Lease, entered into this 9th day of February, 1987, by
and between SANTA CLARA PROPERTY ASSOCIATES, a California General
Partnership, hereinafter referred to as the "Landlord" as Successor to the
original Landlord, DEVCON INVESTMENT COMPANY as Landlord, and FMC
CORPORATION, a Delaware Corporation, hereinafter referred to as the Tenant.
RECITALS
A. Whereas by Lease dated May 23, 1979, and the Amendment to Lease dated
November 25, 1985, Landlord has leased to Tenant approximately
48,666 plus square feet of that certain building located at
150 Brokaw Road, San Jose, California hereinafter referred to as
the Premises". The details of which are more particularly set forth
in said Lease agreement, and Amendment to Lease, and
B. Whereas Landlord and Tenant acknowledge that along with this Amendment
to Lease the parties are simultaneously executing three (3) additional
Amendments to Lease for the Premises known as: 1800 Bering Drive, San
Jose, California, 1830 Bering Drive, San Jose, California, 215 Devcon
Drive, San Jose, California, and,
C. Whereas it is now the desire of the parties hereto to amend said Lease
agreement and Amendment to Lease as hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, provisions and conditions hereinafter set forth, the parties
hereto agree that this Amendment to Lease supersedes the aforementioned
Lease and as such all of the terms and conditions of the Lease shall
remain in full force and effect excepting for the items contained
herein. The changes are as follows:
1. TERM: Paragraph 1, page 1 of the Amendment to Lease dated November 25,
1985 is hereby amended to read as follows: The term of this Lease shall
be for a period of ten (10) years commencing January 1, 1987, and
terminating on December 31, 1996, upon the same terms and conditions as
said November 25, 1985 Amendment to Lease and May 23, 1979 Lease
agreement, except for the terms modified by this Amendment to Lease.
2. Paragraph 2, page 1 of the Amendment to Lease dated November 25, 1985 is
hereby amended to read as follows: The monthly net rental shall be as
follows:
150 BROKAW - 48,666 SQUARE FEET
PERIOD MONTHLY ANNUALLY
January 1, 1987 - December 31, 1987 = $26,766.30 $321,195.60
January 1, 1988 - December 31, 1988 = $26,766.30 $321,195.60
January 1, 1989 - December 31, 1989 = $26,766.30 $321,195.60
January 1, 1990 - December 31, 1990 = $26,766.30 $321,195.60
January 1, 1991 - December 31, 1991 = $26,766.30 $321,195.60
January 1, 1992 - December 31, 1992 = $31,632.90 $379,594.80
January 1, 1993 - December 31, 1993 = $31,632.90 $379,594.80
January 1, 1994 - December 31, 1994 = $36,499.50 $437,994.00
January 1, 1995 - December 31, 1995 = $41,366.10 $496,393.20
January 1, 1996 - December 31, 1996 = $41,366.10 $496,393.20
TOTAL RENT DUE $3,795,948.00
The above rental shall be paid as stipulated until the total aggregate amount
of $3,795,948.00 has been paid.
3. Paragraph 2B, pages 1 and 2 is deleted in entirety and the
following is added: IMPROVEMENT ALLOWANCE: Landlord and Tenant
acknowledge the parties are simultaneously executing four Amendments to
Lease for the following properties: 1800 Bering Drive, 1830 Bering
Drive, 215 Devcon Drive, 150 Brokaw Road and as such Landlord agrees to
reimburse Tenant an average of $225,000 per property but in no event
shall Landlord's reimbursement to Tenant exceed $425,000 for any one
property up to a total aggregate mount of $900,000 for all four
properties for purposes of Tenant remodeling the existing properties to
suit Tenant's requirements subject to the following provisions: A
minimum aggregate amount of $660,000 must be used for improvements
specifically related to the four buildings. The balance of the
allowance (aggregate) may be used for expenses that may not be directly
related to improvements; those expenses may include (but would not be
limited to) new phone equipment, local-area-networking (for computers),
space planning or architectural fees, movable partitioning, furniture,
etc.
Said total aggregate reimbursement allowance of $900,000 for all four
properties will be paid to Tenant monthly as expenses are incurred.
Reimbursement to Tenant will be made within thirty (30) days of Landlord's
receipt of the invoice. The cumulative reimbursement requests will not
exceed the following schedule:
Cumulative
Invoices Reimbursement
Submitted Through Requests
----------------- -------------
January 31, 1987 $150,000
February 28, 1987 $300,000
March 31, 1987 $450,000
April 30, 1987 $450,000
May 31, 1987 $600,000
June 30, 1987 $750,000
July 31, 1987 $900,000
Landlord and Tenant further acknowledge that Tenant will be solely
responsible for improvements to the Premises under this provision and that
any and all costs above said $900,000 shall be paid by Tenant; however,
nothing contained herein shall relieve Landlord of its responsibility for
alterations, maintenance and repairs in accordance with Paragraph 15 of
Lease.
4. SEISMIC IMPROVEMENTS: Landlord hereby agrees to perform seismic
modifications to the Premises in accordance with Landlord's seismic
consultant's recommendations up to a maximum of $50,000. Landlord will
be solely responsible for any and all costs associated with said
modifications including the restoration of the Premises to its condition
prior to the seismic modifications. Landlord agrees to schedule said
seismic modifications in a manner that will minimize the disruption of
Tenants' use of the Premises.
5. Paragraph 4, page 3 is amended to include the following:
COMPLIANCE, HAZARDOUS AND TOXIC MATERIALS.
(i) Tenant shall not use the Premises or suffer or permit anything
to be done in or about the Premises which will in any way conflict
with any law, rule regulation or requirement of duly constituted
public authorities now in force or which may hereafter be in force,
or the requirements of the Board of Fire Underwriters or other
similar body now or hereafter constituted relating to or affecting
the condition, use or occupancy of the Premises. Tenant shall not
commit any public or private nuisance or any other act or thing
which might or would disturb the quiet enjoyment of any other
tenant of Landlord or any occupant of nearby property.
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Tenant shall place no loads upon the floors, walls or ceilings in
excess of the maximum designed load determined by Landlord or which
endanger the structure; nor place any harmful liquids in the
drainage systems; nor dump or store waste materials or refuse or
allow such to remain outside the building proper, except in the
enclosed trash areas provided. Tenant shall not store or permit to
be stored or otherwise place any other material of any nature
whatsoever outside the building,
(ii) In particular, Tenant, at its sole cost, shall comply with
all laws relating to the storage, use and disposal of hazardous,
toxic or radioactive matter, including those materials identified
in Sections 66680 through 66685 of Title 22 of the California
Administrative Code, Division 4, Chapter 30 ("Title 22") as they
may be amended from time to time (collectively "Toxic Materials").
Tenant shall be solely responsible for and shall defend, indemnify
and hold Landlord and its Agents harmless from and against all
claims, costs and liabilities, including attorneys' fees and costs,
arising out of or in connection with its storage, use and disposal
of Toxic Materials. Tenant shall further be solely responsible for
and shall defend, indemnify and hold Landlord and its Agents
harmless from and against any and all claims, costs, and
liabilities, including attorneys' fees and costs, arising out of or
in connection with the removal, clean-up and restoration work and
materials necessary to return the Premises and any other property
of whatever nature to their condition existing prior to the
appearance of the Toxic Materials on the Premises. Tenant's
obligations hereunder shall survive the termination of this Lease.
6. HOLDING OVER: Paragraph 20, page 23, is amended to increase the
holdover rate as follows: The holdover rate shall be increased to one
hundred fifty percent (150%) of the existing rent.
7. Paragraph 31, on pages 26 and 27 of the Lease agreement and paragraph
2A, pages 2 and 3 of the Amendment to Lease are deleted in entirety.
8. REAL ESTATE BROKERS: The parties acknowledge that Grubb & Ellis
Commercial Brokerage and LaSalle Partners are the only brokers involved
in connection with this transaction and that Landlord shall pay a
commission to Brokers in accordance with its separate agreement with
Grubb & Ellis Commercial Brokerage. Said Commission shall be split on a
(50/50) basis between Grubb & Ellis and LaSalle Partners.
9. RENTAL CREDIT: The parties acknowledge that Tenant has paid monies in
excess of rental due in 1987 under Paragraph 2 above, and upon full
execution of said Amendment to Lease, Landlord shall apply the credit
balance to Tenant's future rent payments.
10. SUBORDINATION: Paragraph 18A, page 18 is amended as follows: The end
of the paragraph will conclude with the following sentence, "So long as
Tenant is not in default of the Lease, this Lease shall not be
terminated or modified because of any mortgage or sale of the Premises."
11. DAMAGE AND DESTRUCTION: Paragraph 16A(3), page 15 is amended as
follows: Notwithstanding the provisions of paragraphs (1) and (2) above
and Paragraph 16B below, Tenant may, by giving Landlord sixty (60) days
prior written notice, terminate the Lease if the improvements cannot be
replaced or restored within one hundred fifty (150) days after the date
of damage.
12. PREMISES LEASED STRICTLY ON AS IS" BASIS: The following paragraph is
added to the Lease: It is agreed that the entire 48,666 plus or minus
square foot building leased hereunder is leased strictly on an "as is"
basis, and in its present condition and configuration, without
representation or warranty, express or implied, by Landlord as to the
condition or repair of the Premises, nor as to the use or occupancy
which may be made of the Premises. Landlord shall not be required to
make, nor be responsible for any cost in connection with, any repair,
restoration and/or improvement to the Premises in order for Tenant to
take occupancy of the Premises hereunder or for this Lease to commence,
except as specifically provided in this Amendment to Lease.
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13. Paragraph 19B(5), page 23, line 8, is amended as follows: "said fifteen
(15) day period and diligently prosecutes the cure".
14. Paragraph 10I, page 9 is added to Lease as follows: Notwithstanding the
provisions of Paragraph A-H above, if any general or special assessment
is levied and assessed against the Premises, Landlord can elect to
either pay the assessment in full or allow the assessment to go to bond.
If Landlord pays the assessment in full, Tenant shall pay to landlord
each time a payment of real property taxes is made a sum equal to that
which would have been payable (as both principal and interest) had
Landlord allowed the assessment to go to bond.
15. Paragraph 10J, page 9 is added to Lease as follows: Tenant's liability
to pay real property taxes shall be prorated on the basis of a 365-day
year to account for any fractional portion of a fiscal tax year included
in the term of its commencement and expiration.
16. INSURANCE: Paragraph 11B(2), page 10, is amended to increase the
insurance coverage limitations as follows: comprehensive public
liability insurance shall be increased to limits of TWO MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($2,500,000.00) for bodily injury or
death and for property damage as a result of any one occurrence.
17. Notwithstanding Paragraph 16 (Insurance) above, Paragraph 11B(2), 10 of
Lease is amended by deleting the balance of the paragraph beginning with
the last word in line 6.
18. Paragraph 11C, page 10, line 5 is amended to read "by the Premises as
additional insureds and all payments shall be made".
19. Paragraph 11D, pages 10 and 11, is amended to read as follows: All
policies including policies of self insurance provided for in this
Article 11 which are to be acquired by Tenant, shall be in such form and
with such companies authorized to write insurance in the state in which
the Premises are located as may be approved by Landlord, which approval
Landlord agrees not to unreasonably withhold. Certificates of insurance
evidencing the policy(ies) provided for herein, shall be delivered to
Landlord and shall certify that the policy may not be cancelled or
materially altered without thirty (30) days prior written notice to
Landlord.
20. Paragraph 12, page 11, lines 1 and 2 are amended as follows: "Tenant
agrees to indemnify and hold Landlord harmless except for Landlord's
active negligence."
21. Paragraph 19A(3), pages 19 and 20, lines 5 through 7 is amended to read
as follows: estate shall terminate, and within thirty (30) days after
notice of termination, Tenant shall surrender and vacate the Premises in
the condition required under Paragraph 15, and Landlord may reenter and
take possession of".
22. Paragraph 26, on page 25 is deleted in entirety.
LANDLORD: TENANT:
SANTA CLARA PROPERTY ASSOCIATES FMC CORPORATION
A CALIFORNIA GENERAL PARTNERSHIP A DELAWARE CORPORATION
By: California State Teachers By: /s/ A. M. QUILICI
---------------------------- -----------------------------------
Retirement System, a Partner A. M. Quilici
Title: VICE PRES & GEN MGR - ORD DIV
--------------------------------
/s/ AUTHORIZED SIGNATORY Date: 9 FEB. 1987
---------------------------- ---------------------------------
Date: 2/17/87 By:
--------------------- ------------------------------------
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By: Silicon Valley Portfolio Partners, Title:
Ltd., a California Limited ------------------------
Partnership, a Partner Date:
------------------------
By: Grubb & Ellis Investor
Associates II, a California
Limited Partnership, its
General Partner
/s/ AUTHORIZED SIGNATORY
--------------------------------
Date: FEBRUARY 13, 1987
-----------------------
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THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE is dated for reference purposes only as
September 6, 1996, and is part of that Lease dated May 23, 1979 together with
Amendment No. 1 dated November 25, 1985, and Amendment To Lease dated
February 9, 1987 thereto (collectively, the "Lease") by and between
California State Teachers' Retirement System, a retirement system created
pursuant to the laws of the State of California ("Landlord"),
Successor-In-Interest to Santa Clara Property Associates and United Defense,
L.P., a limited partnership managed by FMC Corporation, a Delaware
corporation ("Tenant"), and is made with reference to the following fact:
A. The Premises currently leased by Tenant pursuant to the Lease
consists of 48,666 rentable square feet commonly known as 150 Brokaw Road,
City of San Jose, California.
B. The Lease Term for said Premises currently expires on December 31,
1996.
C. Tenant and Landlord have agreed to extend the Term of the Lease.
NOW, THEREFORE, Landlord and Tenant hereby agree that the Lease Terms
are amended as follows:
1. LEASE TERM: Paragraph 3 is hereby amended to provide that the
Lease Term shall be extended through and including December 31, 1998.
2. RENT: Commencing January 1, 1997, Paragraph 5 is hereby
amended to provide for the Basic Rent as follows:
January 1, 1997 through and including December 31, 1998: $51,099.30 per
month
3. RETAINED REAL ESTATE BROKERS: Tenant warrants that it has not
had any dealings with any real estate brokers or salesmen or incurred any
obligations for the payment of real estate brokerage commissions or finder's
fees which would be earned or due and payable by reason of the execution of
this Lease Amendment. Tenant will defend (with counsel reasonably acceptable
to Landlord) and indemnify Landlord against any claims or awards of brokerage
fees or commissions or finder's fees which are made against or incurred by
Landlord on account of any breach of the foregoing warranty.
4. NOTICES: Paragraph 21 is hereby amended to provide that
notices to Landlord shall be made to:
AMB Institutional Realty Advisors
505 Montgomery Street
5th Floor
San Francisco, Ca 94111
5. CONDITION OF PREMISES: It is agreed that the entire 48,666
square foot Building leased hereunder is leased strictly on an "as is" basis,
and in its present condition and configuration, without representation or
warranty, express or implied, by Landlord as to the condition or repair of
the Premises, nor as to the use or occupancy which may be made of the
Premises. Landlord shall not be required to make, nor be responsible for any
cost in connection with, any repair, restoration and/or improvement to the
Premises in order for Tenant to take occupancy of the Premises hereunder or
for this Lease Term to commence.
6. Except as expressly set forth in this Amendment, all terms and
conditions of the Lease remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Third
Amendment to be effective as of the date first set forth above.
LANDLORD: TENANT:
CALIFORNIA STATE TEACHERS' UNITED DEFENSE, L.P.,
RETIREMENT SYSTEM, a limited partnership
a retirement system created pursuant managed by FMC Corporation,
to the laws of the State of a Delaware corporation
California
By: AMB Institutional Realty By: /s/ AUTHORIZED SIGNATORY
Advisors, Inc., --------------------------
a California corporation, [Please provide Name]
as Investment Manager
Title: VICE PRESIDENT & GENERAL MANAGER
---------------------------------
[Please provide Title]
By: /s/ JOHN L. ROSSI
-------------------------------
John L. Rossi, Vice President Date: SEPTEMBER 16, 1996
---------------------------------
Date: 9/30/96
-------------------------------
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150 Brokaw Road (San Jose, CA) Lease Agreement - Devcon Investment Co. and FMC Corp.
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