LEASE AGREEMENT
1. PARTIES: The parties to this Lease Agreement (the 'Lease') dated
February 16, 1984 are JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA
dated 7/20/77 (JOHN ARRILLAGA SEPARATE PROPERTY TRUST) as amended, and
RICHARD T. PEERY, Trustee, or his Successor Trustee UTA dated 7/20/77
(RICHARD T. PEERY SEPARATE PROPERTY TRUST) as amended, (hereinafter referred
to as 'Landlord'), and FMC CORPORATION, a Delaware corporation (hereinafter
referred to as 'Tenant').
2. PROPERTY LEASED: Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord upon the terms and conditions as set forth herein
all of that certain building of approximately 48,700 plus or minus square
feet together with parking appurtenant thereto, located at 215 Devcon Drive,
San Jose, California, as shown within the area outlined in Red on Exhibit A
attached hereto and by reference made a part hereof. The Premises leased
hereunder are leased strictly on an 'as is' basis, and in the configuration
set forth on Exhibit B attached hereto, and by reference, made a part hereof.
3. TERM: The term of this Lease shall be for a period of THREE
YEARS, FIVE MONTHS, commencing April 1, 1984, and terminating 3 yrs 5 months
thereafter on August 31, 1987.
4. USE OF PREMISES: Tenant shall use the Premises only for the
purpose 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, except with the written consent of the Landlord.
5. RENT:
A. BASIC: Tenant shall pay Landlord as rental the sums set
forth in subparagraph B below (the 'Monthly Installments') 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 additional rents
as are hereinafter specified.
Said rental shall be paid by Tenant without deduction or offset,
prior notice or demand at:
PEERY/ARRILLAGA
FILE 1504
PO BOX 60000
SAN FRANCISCO, CA 94160
or such other place or places as may be designated by Landlord from time to
time during the term of this Lease.
B. MONTHLY INSTALLMENT.
(1) On April 1, 1984, the sum of THIRTY THOUSAND FIVE HUNDRED
NINETY THREE DOLLARS ($30,593.00) shall be due, and a like sum due on the
first day of June, July and August, 1984.
(2) On September 1, 1984, the sum of FORTY EIGHT THOUSAND SEVEN
HUNDRED DOLLARS ($48,700.00) shall be due, and a like sum due on the first
day of each month thereafter through and including August 1, 1985.
(3) On September 1, 1985, the sum of FIFTY ONE THOUSAND ONE
HUNDRED THIRTY FIVE DOLLARS ($51,135.00) shall be due and a like sum due on
the first day of each month thereafter through and including August 1, 1986.
(4) On September 1, 1986, the sum of FIFTY THREE THOUSAND FIVE
HUNDRED SEVENTY DOLLARS ($53,570.00) shall be due, and a like sum due on the
first
day of each month thereafter for the full remaining term hereof, or until the
entire aggregate rental of ONE MILLION NINE HUNDRED NINETY THREE THOUSAND
EIGHT HUNDRED TWENTY FIVE DOLLARS ($1,993,825.00) has been paid.
C. LATE CHARGES: In the event Tenant fails to pay the basic rent
within five (5) days written notice of its being due, Tenant agrees to pay a
late charge of FIVE HUNDRED DOLLARS ($500.00) 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 ($500.00) 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, 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,' and Article
32 entitled 'Tenant's Right to Terminate Lease', 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 and 32. 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 DEPOSIT: There shall be no security deposit.
8. POSSESSION: Possession of the Premises, and commencement of this
Lease Agreement shall be deemed to occur on April 1, 1984. It is
acknowledged that Tenant is currently in possession of approximately 27,992
square feet of the Premises leased hereunder under separate sublease
agreement as set forth in Paragraph 1 hereof, and that commencement of this
lease with respect to said 27,992 square feed of space is not contingent upon
any improvement, repair or restoration by Landlord, nor upon any other
contingency. In the event Landlord fails to deliver possession of the
remaining 20,708 to Tenant by April 1, 1984, this Lease shall not be void or
voidable, but in such event, this Lease shall commence with respect to 27,992
square feet of space, and the rental and other Additional Rent charges shall
be adjusted so that commencement of payment by Tenant for such Rent and
Additional Rent with respect to the additional 20,708 square feet of space
shall not occur until such time as said 20,708 square feet of space is so
delivered to Tenant by Landlord; provided, however, that such delay in
surrendering said additional 20,708 square feet of space does not exceed one
hundred twenty (120) days (acts of God, strikes, war, utilities, governmental
bodies, weather, and other delays beyond Landlord's control excepted).
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
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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 prorata 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 '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
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
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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.
I. Notwithstanding the provisions of paragraphs 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.
J. 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.
11. INSURANCE.
A. Landlord shall, during the Lease Term, at Tenant's sole
expense, procure 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.
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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 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 therefore, 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, after
ten (10) days written notice to Tenant, 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.
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 provided, however, this obligation
shall not apply where the Landlord was advised in writing as to the discrepancy
for which the Landlord was responsible under the terms of the Lease. 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
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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 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 including (excluding roof and exterior walls),
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, 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
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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, Tenant shall be entitled to
receive the excess.
(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
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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
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 froth 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, and (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 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 the above items are separately awarded, and any other amounts separately
awarded Tenant, (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 and other separately allocated costs 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
8
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. If Tenant is not in default, this Lease will
not be terminated.
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 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 and within thirty days
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:
(i) Maintenance, or restoration, or preservation of the
Premises;
9
(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 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 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 after five (5) days written notice to Tenant;
(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;
10
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 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 mails, 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:
PEERY & ARRILLAGA
2460 Mission College Blvd.
Suite 101
Santa Clara, CA 95050-1222
with a copy to:
and the address of Tenant is:
OED Manager of Facilities FMC CORPORATION
FMC CORPORATION Western Administrative Offices
P.O. Box 1201 Law Department
San Jose, California 95108 1105 Coleman Avenue
San Jose, California 95106
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 herein 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
shall not be deemed to be a consent to any subsequent subletting, occupation
or use by another party. Any or subletting without such consent shall 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
11
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 latter 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 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
12
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.
31. 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.
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 a
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.
J. 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.
K. The parties to this Lease recognize and agree that there shall
not be any common areas within the leased Premises.
L. 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
its commencement.
13
32. TENANT'S RIGHT TO TERMINATE LEASE: It is hereby agreed that so
long as Tenant is not in default in any of the terms, covenants and
conditions of this Lease Agreement, Tenant shall have the right to terminate
this Lease Agreement by giving written notice to Landlord of Tenant's
election to so terminate this Lease prior to July 1, 1984, in which event,
this Lease shall terminate on August 31, 1984 subject to the terms and
conditions of this Lease Agreement. In the event Tenant fails to timely
exercise Tenant's right to terminate this Lease, this Paragraph 32 shall be
null and void, and of no further force and effect, and this Lease Agreement
shall continue in full force and effect for the full remaining term hereof,
absent of this Paragraph 32.
33. LEASE SUBJECT TO TERMINATION OF CURRENT LEASE WITH CURRENT TENANT,
AND TERMINATION OF SUBLEASE BETWEEN TENANT AND CURRENT TENANT:
A. LEASE SUBJECT TO TERMINATION OF CURRENT LEASE: It is
understood that the Premises leased hereunder are currently leased by another
tenant (hereinafter referred to as ECS), and that this Lease is subject to
and contingent upon Landlord's obtaining a lease termination agreement
satisfactory to Landlord from ECS on or before April 1, 1984. In the event
said lease termination agreement satisfactory to Landlord is not obtained by
April 1, 1984, this Lease Agreement may be terminated at the option of either
party.
B. TERMINATION OF SUBLEASE BETWEEN TENANT AND CURRENT TENANT:
Tenant is currently subleasing a portion of the Premises hereunder from ECS,
which sublease expires August 31, 1984. It is hereby agreed that upon early
termination of the current lease with ECS, the said sublease between Tenant
and ECS shall terminate, and be of no further force and effect, and this
Lease Agreement shall be deemed the sole and only agreement of Tenant for the
Premises leased hereunder.
34. PREMISES LEASED ON 'AS IS' BASIS: It is agreed that the entire
48,700 plus or minus square foot building is leased strictly on an 'as is'
basis, and in its present condition and configuration without representation
or warranty by Landlord, express or implied, as to the condition or repair of
the Premises, and that Landlord shall not be required to make nor be
responsible for any cost in connection with any repair, restoration,
alteration and/or improvement to the Premises except as provided in Paragraph
15B herein, in order for Tenant to take occupancy of the Premises leased
hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
20th day of February, 1984.
TENANT: LANDLORD:
FMC CORPORATION JOHN ARRILLAGA SEPARATE
a Delaware corporation PROPERTY TRUST
BY: /s/ Adolph M. Quilici BY: /s/ John Arrillaga
------------------------------- --------------------------------
3/8/84 JOHN ARRILLAGA, TRUSTEE
RICHARD T. PEERY SEPARATE
PROPERTY TRUST
BY: /s/ Richard T. Peery
--------------------------------
RICHARD T. PEERY, TRUSTEE
14
AMENDMENT TO LEASE
This Amendment to Lease, entered into this 9th 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, John Arrillaga Separate Property Trust and Richard T. Peery
Separate Property Trust as Landlord, and FMC CORPORATION, a Delaware
Corporation, hereinafter referred to as the 'Tenant'.
RECITALS
A. Whereas by Lease dated February 16, 1984, Landlord has leased to Tenant
approximately 48,700 plus or minus square feet of that certain building
located at 215 Devcon Drive, San Jose, California hereinafter referred to as
the 'Premises'. The details of which are more particularly set forth in said
Lease agreement, 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, 150 Brokaw Road,
San Jose, California, and,
C. Whereas it is now the desire of the parties hereto to amend said Lease
agreement 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 3, page 1 is hereby amended to read as follows: The term
of this Lease shall be for a period of ten (10) hears commencing January 1,
1987, and terminating on December 31, 1996, upon the same terms and
conditions as said February 16, 1984 Lease agreement, except for the terms
modified by this Amendment to Lease.
2. Paragraph 5B, page 2 is hereby amended to read as follows: The monthly net
rental shall be as follows:
215 DEVCON DRIVE - 48,700 PLUS OR MINUS SQUARE FEET
PERIOD MONTHLY ANNUALLY
January 1, 1987 - December 31, 1987 = $26,785.00 $321,420.00
January 1, 1987 - December 31, 1987 = $26,785.00 $321,420.00
January 1, 1987 - December 31, 1987 = $26,785.00 $321,420.00
January 1, 1987 - December 31, 1987 = $26,785.00 $321,420.00
January 1, 1987 - December 31, 1987 = $26,785.00 $321,420.00
January 1, 1987 - December 31, 1987 = $31,655.00 $379,860.00
January 1, 1987 - December 31, 1987 = $31,655.00 $379,860.00
January 1, 1987 - December 31, 1987 = $36,525.00 $438,300.00
January 1, 1987 - December 31, 1987 = $41,395.00 $496,740.00
January 1, 1987 - December 31, 1987 = $41,395.00 $496,740.00
---------- -----------
TOTAL RENT DUE $3,798,600.00
The above rental shall be paid as stipulated until the total aggregate amount
of $3,798,600.00 has been paid.
1. 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
amount 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 Said
total aggregate reimbursement allowance of $900,000 for all four
properties will be 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
Tenant's use of the Premises.
5. Paragraph 4, on page 1 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.
Tenant shall place no loads upon the floors, walls or ceilings in
excess
-2-
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 21, 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. 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.
8. 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.
9. SUBORDINATION: Paragraph 18A, page 16 is amended as follows: The last
sentence in Paragraph 18A is changed to read, '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'.
10. DAMAGE AND DESTRUCTION: Paragraph 16A(3), page 13 is amended as
follows: Notwithstanding the provisions of Paragraphs (1) and (2) above,
and Paragraph 16B below, Tenant may, but 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.
11. PREMISES LEASE STRICTLY ON 'AS IS' BASIS: Paragraph 34, page 27, is
amended to read as follows: It is agreed that the entire 48,700 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.
12. Paragraph 19B(5), page 20, line 8 is amended as follows: 'said fifteen
(15) day period and diligently prosecutes the cure'.
-3-
13. INSURANCE: Paragraph 11B(2), page 8, 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/1OO DOLLARS ($2,500,000.00) for bodily injury or
death for property damage as a result of any one occurrence.
14. Notwithstanding Paragraph 13 (Insurance) above, paragraph 11B(2), page 8
of Lease is amended by deleting the balance of the paragraph beginning
with the last word in line 6.
15. Paragraph 11C, on page 8, line 5 is amended to read 'by the Premises as
additional insureds and all payments shall be made'.
16. Paragraph 11D, pages 8 and 0, 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 canceled or
materially altered without thirty (30) days prior written notice to
Landlord.
17. Paragraph 12, page 9, lines 1 and 2 is amended to read as follows:
'Tenant agrees to indemnify and hold Landlord harmless except for
Landlord's active negligence'.
18. Paragraph 19A(3), pages 17 and 18, 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'.
19. Paragraph 26, on page 23 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: V.P. & General Mgr. Ord. Div.
------------------------------
Date: 9 Feb. 87
--------------------------------
By: /s/ Authorized Signatory
----------------------------- By:
----------------------------------
Date: 2/17/87
--------------------------- Title:
-------------------------------
By: Silicon Valley Portfolio Partners,
Ltd., a California Limited Date:
--------------------------------
-------------------------------------
Partnership, a Partner
By: Grubb & Ellis Investor
Associates II, a California
Limited Partnership, its
General Partner
/s/ Authorized Signatory
--------------------------------
Date: February 13, 1987
--------------------------
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SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE is dated for reference purposes only as
September 6, 1996, and is part of that Lease dated February 16, 1984 together
with the 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
facts:
A. The Premises currently leased by Tenant pursuant to the Lease
consists of 48,700 rentable square feet commonly known as 215 Devcon Drive,
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: $51,135.00 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 48,700
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 Second 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 to the laws MANAGED BY FMC CORPORATION
of the State of California a Delaware corporation
By: AMB Institutional Realty Advisors, Inc. By: /s/ Authorized Signatory
a California corporation, ------------------------------------
as Investment Manager [Please provide Name]
By: /s/John L. Rossi, Vice President Title: Vice President & General Manager
------------------------------------- --------------------------------
John L. Rossi, Vice President [Please provide Title]
Date: 9/30/96 Date: September 16, 1996
------------------------------------ --------------------------
215 Devcon Drive (San Jose, CA) Lease Agreement - Peery/Arrillaga and FMC Corp.
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