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Exhibit 10.41
Assignment and Assumption -
Ground Sublease
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Recording requested by, and
when recorded, return to:
▇▇▇▇▇▇▇ Technologies Systems Division, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Ground Sublease)
This Assignment and Assumption Agreement (the "Agreement") is
made and entered into this 15th day of April, 1998, by and between PRIMEX
PHYSICS INTERNATIONAL COMPANY, a California corporation (formerly known as
Physics International Company), hereinafter referred to as "Assignor," and
▇▇▇▇▇▇▇ TECHNOLOGIES SYSTEMS DIVISION, INC., a California corporation,
hereinafter referred to as "Assignee," with reference to the following recitals
of fact:
RECITALS
WHEREAS, THE CONNECTICUT NATIONAL BANK, NOT INDIVIDUALLY BUT
SOLELY AS TRUSTEE UNDER THAT CERTAIN TRUST AGREEMENT DATED AS OF DECEMBER 29,
1986, AMONG THE TRUSTEE AND MERCED ASSOCIATES, A MARYLAND GENERAL PARTNERSHIP,
collectively are the Lessee (the "Lessee"), and ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, TRUSTEES UNDER THE WILL AND OF THE
ESTATE OF ▇▇▇▇▇▇ ▇▇▇▇▇ DAMON, DECEASED, collectively are the Lessor (the
"Lessor"), under that certain Ground Lease dated December 29, 1986 (the "Ground
Lease"), as the same may have been amended, for the that certain real property
located in San Leandro, California (the "Premises"), and more particularly
described in Exhibit A hereto; and
WHEREAS, Lessee subleased the Premises to Assignor, under that
certain Ground Sublease dated December 29, 1986 (the "Ground Sublease"), as the
same may have been amended; and
WHEREAS, Lessee leased the improvements situated on the Premises
(the "Building") to Assigner, under that certain Facility Lease dated December
29, 1986 (the "Facility Lease"), as the same may have been amended; and
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WHEREAS, Assignee has entered into an agreement to acquire simultaneously
from Assignor the entirety of its interests in both the Ground Sublease and the
Facility Lease; and
WHEREAS, Assignee has entered into that certain Sublease Agreement dated
April 15, 1998 ("Sublease") with Assignor, by which it has agreed to sublease a
portion of the Premises to Assignor and to construct tenant improvements
thereon; and
WHEREAS, effective as of the date on which Assignee acquires the Ground
Sublease from Assignor (the "Transfer Date"), Assignor desires to assign to
Assignee, and Assignee desires to assume from Assignor, all of the rights and
obligations of Assignor under the Ground Sublease; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
---------
1. Assignment. Effective as of the Transfer Date, except as provided
herein, Assignor hereby sells, assigns, transfers and conveys to Assignee all
of Assignor's right, title and interest in and to the Ground Sublease,
including, without limitation, any extension and renewal options.
2. Assumption. Effective as of the Transfer Date, except as provided
herein, Assignee hereby assumes and agrees to perform all of the obligations of
Assignor under the Ground Sublease.
3. Notices of Default. Assignee agrees to promptly deliver to Assignor a
copy of any notice of default given by Lessee, under the Ground Sublease.
4. Assignor Estoppel. Assignor is the holder of lessor's interests under
the Ground Sublease. Assignor confirms that the documents described above
constitute the entire Ground Sublease for the Premises, including any and all
amendments and modifications, and that the Ground Sublease is in full force and
effect and is the valid legal and binding obligation of Assignor. To the actual
knowledge of Assignor, no defaults or potential defaults exist with respect to
the Ground Sublease.
5. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have entered into this Agreement
as of the day and year first above written.
ASSIGNOR:
PRIMEX PHYSICS INTERNATIONAL
COMPANY, a California corporation
By: /s/ S. C. ▇▇▇▇▇▇
-------------------------------------
Name: S. C. ▇▇▇▇▇▇
Its: Treasurer
By:
-------------------------------------
Name:
Its:
ASSIGNEE:
▇▇▇▇▇▇▇ TECHNOLOGIES SYSTEMS
DIVISION, INC., a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: President
By:
-------------------------------------
Name:
Its:
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EXHIBIT A
LEGAL DESCRIPTION
Those parcels of land, not including any buildings or improvements, in the City
of San Leandro, County of Alameda, State of California, described as follows:
PARCEL 1:
Beginning at a point on the northwestern line of the 66.29 acre tract of land
fifthly described in the Decree of Distribution in the Matter of the Estate of
▇▇▇▇▇▇▇ ▇▇▇▇▇, deceased, in the Superior Court, Contra Costa County, Probate
No. 11478, certified copy of which decree was recorded November 22, 1948, in
Book 5660 OR, page 403 (AC/88342), distant thereon north 62 degrees 30' east
631.30 feet from the northeastern line of Merced Street; thence along said line
of said 66.92 acre tract, north 62 degrees 30' east 315.65 feet; thence south
27 degrees 30' east 690 feet to the direct extension northeasterly of the
northwestern line of the land described as Parcel III in the deed from Oakland
Title Insurance Company to Southern Pacific Company, recorded March 23, 1954, in
Book 7278 OR, page 297, (AJ/23953); thence along said direct extension south 62
degrees 30' west 315.65 feet to the most northern corner of said Parcel III in
the last mentioned deed; and thence north 27 degrees 30' west 690 feet to the
point of beginning.
PARCEL 2:
Portion of the 66.92 acre tract of land fifthly described in the Decree of
Distribution in the Matter of the Estate of ▇▇▇▇▇▇▇ ▇▇▇▇▇, deceased, in the
Superior Court of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, a certified copy of
which decree was recorded November 22, 1948, in Book 5660 OR, page 403
(AC/88342), described as follows:
Beginning at the intersection of the northeastern line of Merced Street, 60
feet wide, with the northwestern line of said 66.92 acre tract, thence along
the northwestern line of said 66.92 acre tract north 62 degrees 30' east
631.30 feet; thence south 27 degrees 30' east 690 feet; thence south 62 degrees
30' west 631.30 feet to said line of Merced Street; thence along the last named
line north 27 degrees 30' west 690 feet to the point of beginning.
Excepting therefrom that portion quitclaimed to the City of San Leandro by
instrument recorded October 10, 1957, Book 8490 OR, page 595, (AM/100857).
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On this 15th day of April 1998, before me a Notary Public in and for said
County and State, personally appeared ▇▇▇▇▇▇▇ ▇. Currley who being duly sworn,
deposes and says that he is Vice President & Treasurer of PRIMEX
TECHNOLOGIES, INC. the corporation described in the above ASSIGNMENT and that
he executed the above ASSIGNMENT as a free act on behalf of PRIMEX
TECHNOLOGIES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Notary Public
SEAL: [LOGO]
▇▇▇▇▇ ▇. ▇▇▇▇
Comm. # 1141819
NOTARY PUBLIC-CALIFORNIA
San Diego County
My Comm. Expires June 19, 2001
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On this 15th day of April 1998, before me a Notary Public in and for said
County and State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ who being duly sworn,
deposes and says that he is President of ▇▇▇▇▇▇▇ TECHNOLOGIES SYSTEM DIVISION,
INC. the corporation described in the above ASSIGNMENT and that he executed the
above ASSIGNMENT as a free act on behalf of ▇▇▇▇▇▇▇ TECHNOLOGIES SYSTEM
DIVISION, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Notary Public
SEAL: [LOGO]
▇▇▇▇▇ ▇. ▇▇▇▇
Comm. # 1141819
NOTARY PUBLIC-CALIFORNIA
San Diego County
My Comm. Expires June 19, 2001
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GROUND LEASE /s/ ▇. ▇▇▇▇▇▇
THIS INDENTURE, made this 29th day of December, 1986, by and between ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustees
under the Will and of the Estate of ▇▇▇▇▇▇ ▇▇▇▇▇ Damon, deceased, hereinafter
called Lessors, and THE CONNECTICUT NATIONAL BANK, not individually but solely
as Trustee under that certain Trust Agreement dated as of December 29, 1986,
among the Trustee and MERCED ASSOCIATES, a Maryland general partnership
hereinafter called "Lessee",
WITNESSETH
That the Lessors, in consideration of the rent hereinafter reserved and of
the covenants herein contained and on the part of the Lessee to be observed and
performed, hereby demise and lease unto said Lessee, and the Lessee hereby
accepts and rents:
All of the property described in Schedule "All and attached hereto.
TO HAVE AND TO HOLD the same, together with rights, easements, privileges
and appurtenances thereunto belonging or appertaining, unto the said Lessee for
the term beginning on the 31st day of December, 1986, and ending on the 31st day
of the December, 2036 notwithstanding the earlier termination of the trust
created under the Will of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, deceased, Lessee yielding and paying
therefor unto the Lessors quarterly in four (4)
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equal payments in advance on the 1st day of January, April, July and October in
each and every year during said term, (plus the additional payments for any
partial calendar quarter in which the term begins, as hereinafter provided)
without any deduction, all accrued payments to be made on execution hereof, net
rent as follows:
1. For any partial calendar quarter at the beginning of the term, at the
rate of $23,000 per month, paid prorated for any partial month on the basis of a
30 day month. Payment for any partial calendar quarter at the beginning of the
term shall be made in advance upon delivery of the Indenture.
2. $69,000 for each full calendar quarter in 1987.
3. $75,166.67 on the first day of January, 1988, comprising rent for the
first calendar quarter of 1988.
4. $87,500 on the first day of April 1988 and on the first day of each
thereafter succeeding calendar quarter to and including the 10th anniversary of
the last day of the month in which the term of the lease begins.
5. Reasonable rent for the second 10 years of the term of the Lease, and
for each thereafter succeeding 10 year period of the term of the lease will be
determined by agreement of Lessors and Lessee; or, failing agreement, by
appraisal as provided in Paragraph (B) hereof.
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AND THE LESSORS hereby covenant with the Lessee that upon payment by the
Lessee of the rent as aforesaid and upon observance and performance of the
covenants by the Lessee hereinafter contained, the Lessee shall peaceably hold
and enjoy said premises for the term hereby demised without hindrance or
interruption by the Lessors or any other person or person lawfully or equitably
claiming by, through or under them except as herein expressly provided;
AND LESSEE hereby covenants with the Lessors as follows:
1. Payment of Rent. Lessee will pay said rent in lawful currency of the
United States at the office of the Lessors, or such other place in Honolulu,
Hawaii as shall be designated in writing by the Lessors, at the times and in the
manner aforesaid, without any deduction and without any notice or demand.
2. Taxes and Other Charges. Lessee will pay to Lessors as additional rent
before the same become delinquent all real property taxes and assessments and
will pay directly all impositions, conveyance taxes, duties, water rates,
charges and other outgoings of every description to which said premises or any
part thereof or improvement thereon, or the Lessors or Lessee in respect
thereof, are now or may during said term be assessed or become liable, whether
assessed to or payable by the Lessors or Lessee
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including all assessments or other charges for any permanent benefit or
improvement of any of the premises hereby demised or any part thereof made under
any betterment law or otherwise, or any assessment or charges for sewage or
street or sidewalk improvement, or municipal or other charges for any utilities
or other services or any connections or meters therefor which may be legally
imposed upon said premises or any part thereof or to which said premises or any
part thereof, or the Lessors or Lessee in respect thereof, are now or may during
said term become liable, and with each payment of rent, real property taxes and
other charges hereunder payable by the Lessee, whether the same be actual or
constructive receipts of the Lessors, the amount of all Hawaii general excise or
other similar taxes payable by the Lessors on account of such receipt, and also
on demand, interest at the rate of one (1) percent per month or higher as may
then be permitted by law on all delinquent rent, taxes and other charges
hereunder payable by Lessee from the respective due dates thereof until fully
paid; provided, however, that with respect to any assessment made under any
betterment or improvement law which may be payable in installments, the Lessee
shall be required to pay only such installments of principal together with the
interest on unpaid balances hereof as shall become due and payable during said
term, and that real property taxes and assessments shall be prorated between the
Lessors and
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Lessee as of the dates of commencement and expiration respectively of said term.
3. Improvements Required by Law. Lessee will at its own expense during the
whole of said term make, build, maintain and repair all fences, sewers, drains,
roads, curbs, sidewalks, and parking areas which may be required by law to be
made, built, maintained and repaired upon or adjoining and in connection with or
for the use of said premises or any part thereof, and whether same were erected
by the Lessors or in existence at the inception of this lease; and in case any
such improvements required by law shall be made, built, maintained or repaired
by the Lessors, the Lessee shall forthwith reimburse the Lessors for the cost
thereof.
4. Repair and Maintenance. Lessee will at its own expense, from time to
time and at all times during said term, well and substantially repair, maintain,
amend and keep all buildings, drainage ditches, culverts, tunnels and other
improvements now or hereafter built on the land hereby demised with all
necessary reparations and amendments whatsoever in good order and condition.
5. Inspection. Lessee will permit the Lessors and their agents, at all
reasonable times during said term, to enter said premises and examine the state
of repair and condition thereof, and will repair and make good all defects of
which notice shall be given by the Lessors
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within thirty (30) days after giving of such notice or such further time as may
be reasonably necessary to complete the same in the exercise of due diligence.
6. Laws and ordinances. Lessee will, during the whole of said term, keep
said premises in a strictly clean and sanitary condition and observe and perform
all laws, ordinances, rules and regulations for the time being applicable to
said premises or any buildings and improvements now or hereafter erected thereon
or the use thereof; and will indemnify the Lessors and the Estate and effects of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, deceased, against all actions, suits, damages and claims by
whomsoever brought or made by reason of the nonobservance or nonperformance of
said laws, ordinances, rules and regulations or of this covenant.
7. Construction and Bond. Lessee will not construct or make on the demised
land by building or other structure, or any additions, alterations or remodeling
at a cost exceeding $5,000 to such building or structure, except in accordance
with plans and specifications therefor first approved in writing by the Lessors;
when such approval is requested by the Lessee, the review of building plans and
specifications by the Lessors will be at the expense of the Lessee; and if so
required by the Lessors in their discretion, Lessee will before commencement of
any such construction deposit with the Lessors a bond in the penal sum of at
least the cost of such construction, in form and
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with surety satisfactory to the Lessors, guaranteeing the completion thereof
free from any mechanics' or materialmen's liens.
8. Industrial or Mercantile Use. Lessee will use or allow to be used the
premises hereby demised solely for industrial or mercantile purposes; and will
at no time during said term permit the same to be occupied as a dwelling place
without the consent of Lessors in writing. Lessee will not, without the written
consent of the Lessors, use said premises or any part thereof for the storage of
or dealing in junk, scrap, salvaged or other offensive materials of which the
Lessors shall be the sole judge; and will not make or suffer any strip or waste
or unlawful, improper or offensive use of said premises, nor overload the floors
or walls of any building thereof, nor use said premises for any purpose or in
any manner which will invalidate the insurance herein required on such
buildings; and will not, without the written consent of the Lessors, take or
remove therefrom any soil or limestone; and will not, without such consent, dig,
drill, or cause to be dug or drilled any well, whether artesian or surface, or
use or permit to be used any well on said premises; and will not, without such
consent, use said premises or any part thereof or permit the same to be used for
the manufacture or sale of any alcoholic liquor or the raising of pigs, fowl or
livestock; and will not, without such consent, assign or
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mortgage this lease except as herein provided or sublease or subdivide said
premises or any part thereof; and will not place or construct any billboard or
sign on said premises without first receiving the written approval of the
Lessors as to size, wording, style and location.
9. Boundary Setback. Lessee will not at any time during said term erect,
place or maintain on said premises any fence, wall or other improvement within
twenty (20) feet of the front or street boundaries other than a boundary fence
or wall not more than six (6) feet high.
10. Insurance. Lessee will at all times during said term keep all
buildings now or hereafter erected on said premises insured against loss or
damage by fire with extended coverage, and during war time against war damage to
the extent the same is reasonably obtainable, in the joint names of the Lessors
and the Lessee in any insurance company authorized to do business in Hawaii in
an amount equal to the maximum insurable value thereof, payable to the Lessors
in case of loss or damage, and will pay all premiums thereon at the time and
place the same are payable, and will from time to time forthwith after receiving
the same deposit with the Lessors such policies of insurance or current
certificates thereof and the receipt for every premium so paid; and all
compensation, indemnity or other moneys paid on account of any loss or damage,
other than rental value insurance, shall with all convenient
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speed be laid out by the Lessee in rebuilding, repairing or otherwise
reinstating the same buildings in a good and substantial manner according to the
plan and elevation of the building so destroyed or damaged, or according to such
modified plan as shall be previously approved by the Lessors and the Lessee in
writing, and in the event such proceeds are inadequate, the Lessee shall make up
such deficiency from its own funds; provided, however, that if the main building
on said premises shall be destroyed at any time during the last ten (10) years
of the term hereof, the Lessee may at its option within sixty (60) days after
such casualty either (a) surrender this lease, forfeiting all interest in the
proceeds of insurance and in any remaining improvement, or (b) pay to the
Lessors a sum of money equal to the then present worth of the quarterly
installments of rent payable during the remainder of said term, calculated at
compound discount at the rate of five percent (5%) per annum, and at its own
expense remove from said premises the remains of said damaged building if so
required by the Lessors, and thereupon all proceeds of such insurance shall be
payable to and be the sole property of the Lessee, and this lease shall
terminate. Lessee will procure at its own expense and keep in force during the
entire period of this lease a policy of comprehensive general liability
insurance with respect to said premises and appurtenant sidewalks in any
insurance company authorized to do business in Hawaii, naming the Lessors as
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additional assureds, with minimum limits of not less than $300,000 for injury to
one person and not less than $1,000,000 for injury to more than one person in
any one accident or occurrence and insurance in the sum of not less than
$100,000 against claims for property damage, or such higher limits as the
Lessors may from time to time reasonably establish as prudent for their
protection in the circumstances then existing, and will from time to time
forthwith upon receiving the same deposit with the Lessors such policies of
insurance or current certificates thereof.
11. Lessor's Expenses. Lessee will pay to the Lessors on demand all costs
and expenses including reasonable attorneys' fees incurred by the Lessors in
enforcing any of the covenants herein contained, in remedying any breach by the
Lessee thereof, in recovering possession of said premises, in collecting any
delinquent rent, taxes or other charges hereunder payable by the Lessee, or in
connection with any litigation commenced by or against the Lessee (other than
condemnation proceedings) to which the Lessors without any fault on their part
shall be made parties.
12. Indemnity. Lessee will indemnify and hold the Lessors harmless from
and against all claims and demands for loss or damage, including property
damage, personal injury and wrongful death, arising out of or in connection with
the use or occupancy of said premises by
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the Lessee or any other person claiming by, through or under the Lessee, or any
accident or fire on said premises or any adjacent sidewalk or any nuisance made
or suffered thereon, or any failure by the Lessee to keep said premises or
sidewalk in a safe condition, and will reimburse the Lessors for all their costs
and expenses including reasonable attorneys' fees incurred in connection with
the defense of any such claims, and will hold all goods, materials, furniture,
fixtures, equipment, machinery and other property on said premises at the sole
risk of the Lessee and hold the Lessors harmless from liability for loss or
damage thereto by any cause whatsoever, and will indemnify and hold the Lessors
harmless from and against all loss, costs and expenses, including reasonable
attorneys' fees with respect to any attachment, judgment, lien, charge or
encumbrance whatsoever against said premises made or suffered by the Lessee.
13. Surrender. At the end of said term or other sooner determination of
this lease, the Lessee will peaceably deliver up to the Lessors possession of
the premises hereby demised; provided, however, that if the Lessee shall have
observed and performed all covenants and conditions herein contained and on its
part to be observed and performed, the Lessee shall have the privilege of
removing any building or buildings which shall have been placed on the demised
premises at its own expense or of
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selling such to a new in-coming tenant, but if the Lessee shall remove such
building the Lessee shall clear the premises of all rubbish and debris and
restore the surface to a condition satisfactory to the Lessors, all at Lessee's
own expense.
AND IT IS HEREBY MUTUALLY AGREED by and between the parties as follows:
(A) Condemnation. If at any time or times during said term any authority
having the power of eminent domain shall take or condemn said premises or any
part thereof for public use, then and in every such case the estate and interest
of the Lessee in said premises or such part so taken or condemned shall
thereupon cease and determine, and the Lessee shall not by reason of such
condemnation be entitled to claim or receive any portion of the compensation or
damages payable or to be paid by reason of such condemnation, but the entire
amount thereof shall be the sole property of the Lessors, provided however, that
out of the proceeds of such condemnation the Lessors shall pay to the Lessee the
amount of all compensation and damages awarded for or on account of any
buildings placed on said premises at its own cost as specifically determined in
the condemnation proceedings, but deducting therefrom a reasonable portion of
the expense incurred by the Lessors in connection with such proceedings. In case
only part of
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said premises shall be so taken or condemned, the rent herein reserved shall be
reduced in the proportion that the area of the land taken or condemned bears to
the total area of land demised, and all compensation and damages paid for or on
account of any improvements placed on said premises by Lessee at is own cost as
specifically determined in the condemnation proceedings shall be used promptly
by the Lessee as may be necessary to restore or replace such improvements on the
remaining premises according to plans first approved in writing by the parties;
provided, further, that if more than one fourth of the demised land shall be so
taken or condemned thereby rendering the remaining premises unsuitable for the
Lessee's business purposes, the Lessee may within 90 days thereafter surrender
to the Lessors this lease, subject to the Lessee's prior removal at its own
expense of all buildings on the remaining demised land if so required by the
Lessors and its restoration of said remaining land to good condition and even
grade, and the Lessee shall thereby be relieved of all further obligations
hereunder.
(B) Appraisal. In case the parties hereto shall fail to agree on the net
annual rent hereunder payable for any rental period of said term as herein
provided at least 90 days before the commencement of such period, said rent
shall be such fair and reasonable annual rent for the demised land (exclusive of
buildings) as shall be determined by three impartial real estate appraisers, one
to be
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appointed by each of the parties hereto, and the Lessors and Lessee shall each
promptly name one such appraiser and give written notice thereof to the other
party, and in case either party shall fail so to do within ten (10) days after
appointment of the first appraiser, the appraiser already appointed shall name a
second appraiser, and the two appraisers thus appointed in either manner shall
appoint a third appraiser, and in case of their failure so to do within ten (10)
days after appointment of the second appraiser, either party may have such third
appraiser (who shall in this case be a member of the Honolulu Chapter of the
American Institute of Real Estate Appraisers or other similar organization)
appointed by any person then sitting as Judge of the Circuit Court of the First
Circuit of the State of Hawaii, and the three appraisers so appointed shall
thereupon proceed to determine the matter in question, and the decision of said
appraisers or a majority of them shall be final, conclusive and binding upon
both parties. The cost of such appraisal other than attorneys' fees shall be
shared equally by the parties hereto. Until determination of such rent by
agreement or appraisal as herein provided, quarterly installments at the same
rate payable for the preceding year shall be paid on account thereof.
(C) Forfeiture. This demise is upon the condition that if the Lessee shall
fail to pay said rent or any
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part thereof within twenty (20) days after the same becomes due, whether the
same shall or shall not have been legally demanded, or shall fail to observe and
perform faithfully any of the covenants herein contained and on the part of the
Lessee to be observed and performed and such default shall continue for thirty
(30) days after written notice thereof given to the Lessee, or if the Lessee
shall abandon said premise, or if the Lessee then owning this lease shall
be adjudicated bankrupt or take any proceedings under the Federal Bankruptcy Act
seeking the readjustment, rearrangement, postponement, composition or reduction
of its debts, liabilities or obligations or make any assignment for the benefit
of creditors, or if this lease or any estate or interest of the Lessee hereunder
shall be taken or sold under any process of law, then and in any such case the
Lessors may at once re-enter said premises or any part thereof in the name of
the whole and, upon or without such entry, at their option, terminate this
lease, and may expel and remove from said premises the Lessee and any persons
claiming under the Lessee and their effects without being deemed guilty of any
trespass or becoming liable for any loss or damage occasioned thereby, all
without service of notice or legal process and without prejudice to any other
remedy or right of action including summary possession which the Lessors may
have for arrears of rent or for any preceding or other breach of contract.
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(D) Mortgages. Lessee may from time to time without further consent of the
Lessors assign this lease by way of mortgage to any bank, insurance company or
other established lending institution as mortgagee, and the mortgagee may
enforce such mortgage and acquire title to the leasehold estate in any lawful
way, and pending foreclosure of such mortgage may take possession of and rent
said premises, and upon foreclosure thereof may without further consent of the
Lessors sell and assign the leasehold estate by assignment in which the assignee
shall expressly assume and agree to observe and perform all covenants of the
Lessee herein contained, and such assignee may make a purchase money mortgage of
this lease to the assignor, provided that upon the execution of any such
assignment or mortgage a true copy thereof shall be delivered promptly to the
Lessors, and that no other or further assignment of this lease for which any
provision hereof requires the written consent of the Lessors shall be made
without such consent. The mortgagee shall be liable to perform the obligations
of the Lessee hereunder only during such period as it had possession or
ownership of the leasehold estate, and the terms, covenants and conditions of
this lease shall control in case of any conflict with the provisions of such
mortgage. During the continuance in effect of any authorized mortgage of this
lease the Lessors will not terminate this lease because of any default on the
-16-
24
part of the Lessee to observe or perform any of the covenants or conditions
herein contained if the mortgagee, within sixty (60) days after the Lessors have
mailed to the mortgagee at its last known address a written notice of intention
to terminate this lease for such cause, shall cure such default, if the same can
be cured by the payment of money, or if such is not the case, shall undertake in
writing to perform all the covenants of this lease capable of performance by the
mortgagee until such time as this lease shall be sold upon foreclosure of such
mortgage. In case of such undertaking the Lessors will not terminate this lease
within such further time as may be required by the mortgagee to complete
foreclosure of such mortgage or other remedy thereunder, provided (a) that such
remedy is pursued promptly and completed with due diligence, and (b) that all
rent and other charges accruing hereunder are paid as the same become due and
all other covenants of this lease capable of performance by the Lessee are duly
performed; and upon foreclosure sale of this lease the time for performance of
any obligations of the Lessee then in default hereunder, other than the payment
of money, shall be extended by the time reasonably necessary to complete such
performance by due diligence. Any default consisting of the Lessee's failure to
discharge promptly any lien, charge or encumbrance against said premises junior
in priority to such mortgage shall be deemed to be duly cured
-17-
25
if such mortgage shall be foreclosed by appropriate action instituted within
said 60-day period and thereafter prosecuted in diligent and timely manner.
(E) Notices. Any notice or demand to either party hereto provided for or
permitted by this lease may be given sufficiently for all purposes in writing
delivered personally to such party or any corporate officer thereof, if such
party is a corporation, or mailed as registered or certified mail addressed to
such party at its address herein specified or its last address given in writing
to the other.
(F) Nonwaiver and Definitions. Acceptance of rent by the Lessors shall not
be deemed to be a waiver by them of any breach by the Lessee of any covenant
herein contained, nor of the Lessors' right to terminate this lease for breach
of covenant. The term "premises" whenever it appears herein includes and shall
be deemed or taken to include (except where such meaning would be clearly
repugnant to the context) all buildings and improvements now or any time
hereafter built on said land hereby demised; the term "Lessors" herein shall
include the Lessors, their successors in trust and assigns; and the term
"Lessee", or any pronoun used in place thereof shall indicate and include the
masculine or feminine, the singular or plural, and jointly and severally
individuals, firms or corporations, and their and each of their respective
successors,
-18-
26
executors, administrators and permitted assigns, according to the context
hereof. No approval or consent of the Lessors herein required for any action of
the Lessee shall be unreasonably withheld.
(G) Prior Lease. Physics International Company, by execution hereof,
hereby assigns and surrenders to the Lessors as of the commencement of said term
hereby demised that certain unrecorded prior lease of the said premises and of
the improvements dated October 23, 1979, and all the leasehold estate and
interest of the lessee thereunder, and the Lessors hereby accept the foregoing
surrender and release the lessee from all further obligations under the said
prior lease, subject, however, to all rights under any subsisting mortgage of
said prior lease or sublease of all or any part of said premises, made with the
written consent of the Lessors, which shall continue in full force and effect in
accordance with their respective provisions. Lessee hereby assigns this lease as
security under every such mortgage hereinbefore specified in substitution for
said prior lease, subject to the written consent of the mortgagee thereof, with
the same lien and effect as though specifically assigned and mortgaged by the
same such mortgage.
-19-
27
IN WITNESS WHEREOF, the parties hereto have executed these presents as of
the day and year first above written.
THE CONNECTICUT
NATIONAL BANK, Trustee
By [SIG]
------------------------------ --------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
"Lessee" "Lessors"
PHYSICS INTERNATIONAL COMPANY executes this lease as of the day and year
first above written for the limited purpose of assigning and surrendering to
Lessors the prior lease, pursuant to Paragraph (G) hereof.
PHYSICS INTERNATIONAL COMPANY
By
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President
Corporate Director of
Administration
"Prior Lessee"
-20-
28
IN WITNESS WHEREOF, the parties hereto have executed these presents as of
the day and year first above written.
THE CONNECTICUT
NATIONAL BANK, Trustee
By ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ --------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
"Lessee" "Lessors"
PHYSICS INTERNATIONAL COMPANY executes this lease as of the day and year
first above written for the limited purpose of assigning and surrendering to
Lessors the prior lease, pursuant to Paragraph (G) hereof.
PHYSICS INTERNATIONAL COMPANY
By
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President
Corporate Director of
Administration
"Prior Lessee"
-20-
29
IN WITNESS WHEREOF, the parties hereto have executed these presents as of
the day and year first above written.
THE CONNECTICUT
NATIONAL BANK, Trustee
By
------------------------------ --------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
"Lessee" "Lessors"
PHYSICS INTERNATIONAL COMPANY executes this lease as of the day and year
first above written.
PHYSICS INTERNATIONAL COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President
Corporate Director of
Administration
"Prior Lessee"
-20-
30
These Clarifications and Interpretations are made as of this 29th day of
December, 1986 by and between ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇,
and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustees under the Will and of ▇▇▇▇▇▇ ▇▇▇▇▇ Damon,
deceased (Lessors); The Connecticut National Bank, not individually but solely
as Trustee under that certain Trust Agreement dated as of December 29, 1986,
among the Trustee and Merced Associates, a Maryland general partnership
(Lessee); and Physics International Company, a California corporation ("PI") to
clarify and interpret the provisions of the Indenture executed concurrently
herewith by Lessors, Lessee and PI.
The references to paragraph numbers and letters which follow are to the
designated paragraphs of the Indenture.
PARAGRAPH 2 - TAXES AND OTHER CHARGES:
1. Notwithstanding the provisions of paragraph 2, Lessee, at its sole
expense may contest taxes, assessments, governmental impositions and the like
against the premises, but as a condition of such contest, Lessors shall be
provided with copies of all documents filed with any public agency in such
contest.
PARAGRAPH 3 - IMPROVEMENTS REQUIRED BY LAW:
1. Notwithstanding the provisions of paragraph 3, Lessors shall not make
for the account of Lessee any improvements to the premises required by law until
after
-1-
31
written notice from Lessors advising Lessee that the latter has defaulted in
making such improvements, and that the Lessors intend to make the improvements
for the account of Lessee.
2. Further, notwithstanding the provisions of paragraph 3, Lessee may at
its sole expense contest the action of any public authority in requiring
improvements to be made to the premises but as a condition of such contest,
Lessors shall be provided copies of all documents filed with any public agency
in such contest.
PARAGRAPH 7 - CONSTRUCTION AND BOND:
1. Notwithstanding the provisions of paragraph 7, it is the intention of
the parties that Lessee may construct structures and make additions, alterations
and remodeling at a cost up to $50,000.00 without the prior approval of Lessors.
Further, Lessors shall respond to a request by Lessee for approval of plans and
specifications within 10 working days after receipt of plans and specifications.
PARAGRAPH 8 - INDUSTRIAL OR MERCANTILE USE:
1. Notwithstanding the provisions of paragraph 8, the premises may be used
for any lawful use, other than for a dwelling place.
▇▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇:
-▇-
▇▇
▇. Notwithstanding the provisions of paragraph 9, Lessee need observe only
the setback requirements of the City of San Leandro, and of any other public
agency having jurisdiction over the premises.
PARAGRAPH 10 - INSURANCE
1. Notwithstanding the provisions of paragraph 10, any institutional
leasehold mortgagee shall be named as an additional insured in policies of fire
and casualty insurance. Further, the references to "Hawaii" in the last line of
Page 9 and the fifth line of Page 10 shall be to "California".
PARAGRAPH 11 - LESSORS' EXPENSES:
1. Notwithstanding the provisions of paragraph 11, the prevailing party,
whether Lessors or Lessee, in any proceeding for enforcement of the Lease, or
for a declaration of rights and duties under the Lease, shall be entitled to
recover its costs and expenses, including reasonable attorneys fees.
PARAGRAPH 12 - INDEMNITY:
1. Notwithstanding the provisions of paragraph 12, the obligations of the
Lessee to indemnify and hold Lessors harmless, and to assume the risk of damage
to and loss of property, shall not extend to liability, damage, or losses
resulting from the negligence or willful misconduct
-3-
33
of Lessors.
PARAGRAPH 13 - SURRENDER:
1. Notwithstanding the provisions of paragraph 13, if (i) Lessee shall
have observed and performed all covenants and conditions herein contained and on
its part to be observed and performed or (ii) shall have within 60 days after
written notice from Lessors cured any default in the observation and performance
of such covenants and conditions, then in either such event, the Lessees at the
end of the term of this lease shall have the privilege of removing any
improvements which have been placed on the premises by Lessee or which have been
purchased from Lessors by Lessee except for plant materials in the ground,
irrigation systems, and storm or sanitary sewers; provided, however, that if
requested by Lessors, Lessee shall remove any plant materials.
2. It is contemplated and agreed between the parties hereto that the
Lessee will issue a ground sublease to PI, that the Lessor will sell the
improvements to the Property to Lessee, and that the Lessee will issue a lease
of the improvements to PI. Lessor shall give written notice to PI of any default
hereunder; PI shall have sixty (60) days after such notice to undertake in
writing to assume the Lease, and to cure any defaults thereunder. Failing such
assumption and cure by PI, the improvements shall revert to and become the
property of Lessor, upon the expiration of
-4-
34
sixty (60) days after such notice.
PARAGRAPH (A) - CONDEMNATION:
1. Notwithstanding the provisions of paragraph (A) Lessors shall pay to
Lessee the amount of all compensation and damages awarded for or on account of
any improvements placed on the premises by Lessee or any sublessee, and any
improvements which have been purchased from Lessors by Lessee or any sublessee;
provided, however, that the amount of any payment to Lessee shall be reduced by
the amount required to cure any default of Lessees under the Lease.
2. Further, notwithstanding the provisions of Paragraph (A) if any portion
of the demised land shall be taken or condemned thereby rendering the remaining
premises impossible of use for the business purposes of Lessee or any sublessee,
the Lessee within 90 days thereafter may surrender to the Lessors this Lease,
subject to the Lessee's prior removal, at its own expense of all buildings on
the remaining demised land, if so required by the Lessors and its restoration of
said remaining land to good condition and even grade, and the Lessee, its
Sublessees and guarantors shall thereby be relieved of all further obligations.
If there is a dispute as to whether a partial taking or condemnation renders
the remaining premises impossible for use for the business purposes of Lessee or
sublessee, the matter shall be submitted promptly to arbitration before and
under the rules of the American Arbitration Association at San
-5-
35
Francisco, California. The decision in arbitration shall not be binding, but the
fact of the arbitration, and the testimony, findings and decision in arbitration
shall be fully admissible at the instance of any party to any subsequent
litigation, or binding arbitration, on the issue of the impossibility of use of
the premises.
PARAGRAPH (B) - APPRAISAL:
1. Notwithstanding the provisions of paragraph (B) the appointment of a
third appraiser after failure of the two appraisers appointed by the parties to
select the third shall be by any person then sitting as a Judge of the Superior
Court of the State of California in and for the County of Alameda, and the
person so appointed shall be a member of the American Institute of Real Estate
Appraisers who maintains an office in the County of Alameda, Contra Costa, Santa
▇▇▇▇▇ or in the City and County of San Francisco.
PARAGRAPH (C) - FORFEITURE:
1. Paragraph (c) of the Lease shall be interpreted as if the phrase "in
the payment of rent, or the observance and faithful performance of any other
covenant of the Lease" were inserted after the word "default" in the fifth line
of Paragraph (c).
2. Further, notwithstanding the provisions of paragraph (C), Lessee shall
not be in default for any
-6-
36
non-monetary breach of the Indenture, or of these Clarifications and
Modifications to the Indenture if the breach is not susceptible of cure within
thirty (30) days, unless Lessee fails to commence the cure within thirty (30)
days of receipt of Lessors' written notice, and thereafter fails to diligently
proceed to cure said breach; provided, however, that the time for cure shall not
exceed six (6) months after receipt of Lessor's written notice.
PARAGRAPH (E) - NOTICES:
1. Notwithstanding the provisions of paragraph (E) a copy of any notice to
Lessee shall also be sent to:
Maryland National Leasing Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Vice President, Operations
▇▇▇▇ Financial Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Corporate Secretary
Physics International Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇.▇. ▇▇▇▇▇▇▇▇
-7-
37
SUPPLEMENTAL PROVISIONS:
1. Notwithstanding the absence of an express provision in the Indenture,
Lessors agree to provide Lessee, and any leasehold mortgagee, upon reasonable
request, estoppel certificates in the form customarily provided by Lessors.
Further, Lessors confirm that the rights of Lessee under the Lease will be
superior to the rights of any mortgagee of Lessors' reversionary interest which
is later in time than the Lease.
2. Upon the written demand of the City of San Leandro for the dedication
to it for street-widening purposes of a ten foot wide strip of the property
running along Merced Street, and totalling approximately 7,187 square feet (the
"Property to be Dedicated") Lessee or its subtenant shall have the right to
purchase from Lessor, and Lessor shall sell to Lessee or its subtenant, the
Property to the be Dedicated, on the following terms and conditions:
a. Lessee, or its subtenant, shall pay to Lessor the purchase price
of thirty thousand and no/100 dollars ($30,000.00) payable in cash at close of
escrow.
▇. ▇▇▇▇▇▇ shall convey title to the Property to be Dedicated by quit
claim deed.
c. The written demand of the City of San Leandro shall be delivered
to Lessor on close of escrow.
d. Payment of the purchase price, delivery of the city's demand and
the quit claim deed shall be consummated by means of an escrow established at a
title company
-8-
38
chosen by Lessee or its subtenant, Lessee or its subtenant to pay any and all
closing costs.
3. Notwithstanding the absence of an express provision in the Indenture,
Lessee may assign the Indenture or sublet the Property without the prior written
consent of Lessors, only (a) for a period not extending beyond the initial term
of the Ground Sublease to Physics International Company,; (b) if the guaranty of
the Ground Sublease by ▇▇▇▇ Corporation remains in effect, and (c) the Lessee is
not released. Except as expressly provided in the preceding provisions of this
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ shall not assign the Indenture or sublet the Property
without the prior written consent of Lessors, which shall not be unreasonably
withheld, and which shall be given to such assignment or subletting to any
financially responsible party.
Lessors hereby grant their consent to the exercise of any renewal term of
the sublease of Physics International Company, a California corporation.
4. The foregoing clarifications and interpretations are solely for the
sole benefit of Lessee, ▇▇▇▇ corporation, a Virginia corporation, and for the
benefit of any bank, insurance company or other established lending institution,
as mortgagee of the Indenture and for the assignee of such mortgagee expressly
assuming and agreeing to observe and perform all of the covenants of Lessee.
-9-
39
IN WITNESS WHEREOF, the parties hereto have executed these presents as of
the day and year first above written.
THE CONNECTICUT NATIONAL BANK, TRUSTEES UNDER THE WILL
Trustee ESTATE OF ▇▇▇▇▇▇ ▇▇▇▇▇
DAMON
By [SIG]
------------------------------ --------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
By [SIG] ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
"Lessee" --------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
"Lessors"
-10-
40
IN WITNESS WHEREOF the parties hereto have executed these presents as of
the day and year first above written.
THE CONNECTICUT NATIONAL BANK, TRUSTEES UNDER THE WILL
Trustee ESTATE OF ▇▇▇▇▇▇ ▇▇▇▇▇
DAMON
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By __________________________ -----------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
By __________________________ -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
"Lessee"
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
"Lessors"
-10-
41
PHYSICS INTERNATIONAL COMPANY
By /s/ E.T. ▇▇▇▇▇, JR.
-----------------------------
E.T. ▇▇▇▇▇, Jr.
Executive Vice President
-11-
42
Those parcels of land, not including any buildings or improvements, in the City
of San Leandro, County of Alameda, State of California, described as follows:
PARCEL 1:
Beginning at a point on the northwestern line of the 66.29 acre tract of land
fifthly described in the Decree of Distribution in the Matter of the Estate of
▇▇▇▇▇▇▇ ▇▇▇▇▇, deceased, in the Superior Court, Contra Costa County, Probate
No. 11478, certified copy of which decree was recorded November 22, 1948, in
Book 5660 OR, page 403 (AC/88342), distant thereon north 62 degrees 30'
east 631.30 feet from the northeastern line of Merced Street; thence along said
line of said 66.92 acre tract, north 62 degrees 30' east 315.65 feet; thence
south 27 degrees 30' east 690 feet to the direct extension northeasterly of
the northwestern line of the land described as Parcel III in the deed from
Oakland Title Insurance Company to Southern Pacific Company, recorded March 23,
1954, in Book 7278 OR, page 297, (AJ/23953); thence along said direct extension
south 62 degrees 30' west 315.65 feet to the most northern corner of said
Parcel III in the last mentioned deed; and thence north 27 degrees 30' west
690 feet to the point of beginning.
PARCEL 2:
Portion of the 66.92 acre tract of land fifthly described in the Decree of
Distribution in the Matter of the Estate of ▇▇▇▇▇▇▇ ▇▇▇▇▇, deceased, in the
Superior Court of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, a certified copy of
which decree was recorded November 22, 1948, in Book 5660 OR, page 403
(AC/88342), described as follows:
Beginning at the intersection of the northeastern line of Merced Street, 60 feet
wide, with the northwestern line of said 66.92 acre tract, thence along the
northwestern line of said 66.92 acre tract north 62 degrees 30' east 631.30
feet; thence south 27 degrees 30' east 690 feet; thence south 62 degrees 30'
west 631.30 feet to said line of Merced Street; thence along the last named line
north 27 degrees 30' west 690 feet to the point of beginning.
Excepting therefrom that portion quitclaimed to the City of San Leandro by
instrument recorded October 10, 1957, Book 8490 OR, page 595, (AM/100857).
Schedule A
43
EXHIBIT __
GROUND SUBLEASE
THIS AGREEMENT is made as of the 29th day of December, 1986, by and
between The Connecticut National Bank, not individually but solely in its
capacity as trustee (the "Trustee") under that certain trust agreement as of
December 29, 1986 among Merced Associates, a Maryland general partnership and
the Trustee, hereinafter referred to as "Landlord", and Physics International
Company, a California corporation, hereinafter referred to as "Tenant".
A. Landlord, as lessee, entered into an indenture (the "Ground Lease")
with ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Trustees under the Will and Estate of ▇▇▇▇▇▇ ▇▇▇▇▇ Damon, decreased, as
lessors, dated as of December 29, 1986, leasing the land at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, (the "Property") exclusive of any improvements now or
hereafter located on the premises. The Property is more particularly described
in Exhibit A-1 and incorporated herein, and a copy of the Ground Lease is
attached hereto as Exhibit A-2, and hereby incorporated herein.
B. The parties hereto desire that Landlord sublet the Property to Tenant.
NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
-1-
44
1. Lease of Property. Landlord hereby leases to Tenant the Property for
a term of 20 years beginning on January 1, 1987 and ending on December 31, 2006,
unless sooner terminated in accordance herewith.
2. Renewal Term. Tenant shall have the option to extend the original
term of this Ground Sublease for two (2) consecutive renewal terms of ten (10)
years each on the terms and conditions contained herein. Tenant shall exercise
each of such options by providing written notice of its exercise of such option
to Landlord not less than one hundred eighty (180) days prior to the expiration
of the original term, or the renewal term then in effect; provided, however,
that the exercise of each such option shall be subject to the conditions that:
(i) Tenant is not in default under any provision of this Ground
Sublease on the date of exercise of such option or on the date of commencement
of the renewal term;
(ii) Tenant shall be and shall have been in possession and occupancy
of the Property at all times since the effective date of this Ground Sublease;
and
(iii) Tenant simultaneously exercises its option to renew the
Facility Lease between Landlord and Tenant of even date herewith (the "Facility
Lease").
-2-
45
3. Rental Amount. Rent for the original term of this Lease, and for any
renewal term, shall be the rent for said term reserved to the Landlord under
the Ground Lease. Tenant shall pay said rent to Landlord at its office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
designated in writing by the Landlord, in the amount and at the times and in
the manner as provided in the Ground Lease, without any deduction or setoff and
without any notice or demand.
4. Assignment or Subletting. During the initial term of this Ground
Sublease, Tenant shall have the right, upon sixty (60) days prior written
notice to Landlord, to assign this Ground Sublease, in whole or in part, to
sublet the Property, or any part or portion thereof for a term not to exceed
the initial term of this Ground Sublease. Notwithstanding any such assignment
or subletting, Tenant shall not be relieved of any liability under this Ground
Sublease. Additionally, no party other than Tenant may exercise the renewal
options set forth in Section 2 above, unless ▇▇▇▇ Corporation ("Guarantor")
provides Landlord with a Guaranty Agreement satisfactory to Landlord,
guarantying payment and performance of such party's obligations to Landlord
during any renewal term.
Notwithstanding the above paragraph, (i) Tenant may not assign this Ground
Sublease during its initial term unless concurrently therewith, Tenant also
assigns the Facility Lease to the same party for the same term; and
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(ii) Tenant may not sublet the Property unless concurrently therewith, Tenant
also sublets the improvements to the Property to the same party for the same
term.
During any renewal term of this Ground Sublease, Tenant may sublet the
Property or assign this Ground Sublease upon the prior written consent of
Landlord, which shall be granted to any financially responsible sublessee or
assignee.
5. Additional Rent. If Landlord shall pay additional rent or any other
sums pursuant to the provisions of the Ground Lease, Tenant shall be liable to
repay to Landlord 100% of such additional rent or other sums. Any rent or other
sums payable by Tenant under this article shall be additional rent and payable
promptly upon Landlord's demand.
6. Subordination to Prime Lease. This Ground Sublease is subject to and
subordinate to the Ground Lease. Except as is plainly inconsistent with the
express terms hereof, all the terms, covenants and conditions in the Ground
Lease shall be applicable to this Ground Sublease with the same force and
effect as if Landlord were the lessor under the Ground Lease and Tenant were
the lessee thereunder and the Tenant shall perform each such term, covenant and
condition and shall owe to Landlord each such duty as is required to be
performed by lessee or owed by lessee to lessor under the Ground Lease and
Landlord shall
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have all rights against Tenant as lessor has against lessee under the Ground
Lease. In the event of any breach hereof or of the Ground Lease by Tenant,
Tenant shall be in default under this Ground Sublease and Landlord shall have
all the rights against Tenant as would be available to the lessor against the
lessee under the Ground Lease if such breach were by the lessee thereunder.
7. Cross Default. It shall constitute a default by Tenant if the Tenant
or Guarantor is in default under the terms of any document, paper or agreement
with Landlord or to which Landlord is a party, including but not limited to the
following documents executed of even date herewith: the Purchase and Ground
Lease Agreement among the Damon Estate, Landlord and Tenant; the Purchase and
Assignment Agreement among Landlord, Tenant and Merced Associates, a Maryland
general partnership; the Agreement of Guaranty Nos. 1 and 2 between Guarantor
and Landlord; and the Facility Lease.
8. Indemnification. Tenant shall neither do nor permit anything to be
done which would cause the Ground Lease to be terminated or forfeited by reason
of any right of termination or forfeiture reserved or vested in the lessor under
the Ground Lease, and Tenant shall indemnify and hold Landlord (in its
individual and trust capacity) harmless from and against all claims of any kind
whatsoever by reason of any breach or default on the part of Tenant of the terms
of the Ground Lease or of this Ground Sublease.
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The duty of Tenant to indemnify Landlord shall extend to and include the
performance of every duty imposed on Landlord, as lessee, to indemnify and hold
harmless lessors by the Ground Lease, which provides as follows:
Lessee will indemnify and hold the Lessors harmless from and against
all claims and demands for loss or damage, including property damage,
personal injury and wrongful death, arising out of or in connection with
the use or occupancy of said premises by the Lessee or any other person
claiming by, through or under the Lessee, or any accident or fire on said
premises or any adjacent sidewalk or any nuisance made or suffered thereon,
or any failure by the Lessee to keep said premises or sidewalk in a safe
condition, and will reimburse the Lessors for all their costs and expenses
including reasonable attorneys' fees incurred in connection with the
defense of any such claims, and will hold all goods, materials, furniture,
fixtures, equipment, machinery and other property on said premises at the
sole risk of the Lessee and hold the Lessors harmless from liability for
loss or damage thereto by any cause whatsoever, and will indemnify and hold
the Lessors harmless from and against all loss, costs and expenses,
including reasonable attorneys' fees with respect to any attachment,
judgment, lien, charge or encumbrance whatsoever against said premises made
or suffered by the Lessee.
Notwithstanding the provisions of ... [the above paragraph], the
obligations of the Lessee to indemnify and hold Lessors harmless, and to
assume the risk of damage to the loss of property, shall not extend to
liability, damage or losses resulting from the negligence or willful
misconduct of Lessors.
9. Memorandum of Sublease. Tenant agrees that it will, upon
Landlord's request, execute, acknowledge and deliver to Landlord a
memorandum of this Ground Sublease in
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a form suitable for recording under applicable law. Such recordation shall be
at Tenant's expense.
10. Notice. Any notice required or permitted by or in connection
with this Ground Sublease shall be in writing and made by hand delivery or
overnight delivery service or by certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the appropriate address
set forth below or to such other address as may be hereafter specified by
written notice by any party, and shall be considered given as of the date of
hand delivery or as of one (1) day after sending overnight delivery service or
three (3) days after the date of mailing, independent of the date of delivery,
as the case may be:
If to Tenant: Physics International Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇▇▇, ▇▇.
If to Landlord: The Connecticut National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Bond and Trustee
Administration
Copy to: Maryland National Leasing
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Vice-President
Operations
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Copy to: ▇▇▇▇ Financial Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Corporate Secretary
Copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Ober, Kaler, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
1600 Maryland National Bank
Building
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. Merger. All prior understandings and agreements between the parties
with respect to the subject matter hereof are merged within this Ground
Sublease, which alone and completely sets forth the understanding of the
parties and this Ground Sublease may not be changed or terminated orally or in
any manner other than by an agreement in writing signed by all parties.
12. Binding Effect. The covenants and agreements herein contained shall
bind and inure to the benefit of Landlord, Tenant and their respective
successors and assigns.
13. Applicability of California Law. The laws of the State of California
shall govern the rights and obligations of the parties to this Ground Sublease
and the interpretation, construction and enforceability hereof and any and all
issues relating to the transactions contemplated in this Ground Sublease.
14. Remedies Cumulative. All of the Landlord's rights and remedies
hereunder shall be cumulative and supplemental to Landlord's rights and
remedies under the
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Facility Lease and Purchase and Assignment Agreement of even date herewith.
IN WITNESS WHEREOF, the parties hereto have executed this Ground Sublease
on the day and year first written above.
WITNESS/ATTEST: LANDLORD:
THE CONNECTICUT NATIONAL BANK,
not individually but solely in
its capacity as Trustee
________________________ By:__________________________(SEAL)
TENANT:
PHYSICS INTERNATIONAL COMPANY
________________________ By:__________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President
Corporate Director of
Administration
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ACKNOWLEDGEMENTS
STATE OF ______________________, CITY OF ___________________________ TO WIT:
I HEREBY CERTIFY that on this _______ day of December, 1986, before the
subscriber, a Notary Public of the State and subdivision aforesaid, personally
appeared _________________, who acknowledged ____________ self to be the
_______________ of THE CONNECTICUT NATIONAL BANK, not individually but solely
in its capacity as trustee, and that _____________ he as such
__________________, being so authorized to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
Trustee by ______ self as _____________ in my presence.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
____________________________________
Notary Public
My Commission Expires:
STATE OF CALIFORNIA )
) ss.
COUNTY OF _________ )
On _____________________, 19___, before me the undersigned a Notary
Public, in and for said State, personally appeared _________________ known to
me to be the ______________ President of the corporation that executed the
within instrument, and also known to me to be the persons who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the same, and further acknowledged to me that such corporation
executed the instrument pursuant to its by-laws or a resolution of its Board of
Directors.
_________________________________________
Notary Public
My Commission Expires:
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53
Those parcels of land, not including any buildings or improvements, in the City
of San Leandro, County of Alameda, State of California, described as follows:
PARCEL 1:
Beginning at a point on the northwestern line of the 66.29 acre tract of land
fifthly described in the Decree of Distribution in the Matter of the Estate of
▇▇▇▇▇▇▇ ▇▇▇▇▇, deceased, in the Superior Court, Contra Costa County, Probate No.
11478, certified copy of which decree was recorded November 22, 1948, in Book
5660 OR, page 403 (AC/88342), distant thereon north 62 degrees 30' east 631.30
feet from the northeastern line of Merced Street; thence along said line of said
66.92 acre tract, north 62 degrees 30' east 315.65 feet; thence south 27 degrees
30' east 690 feet to the direct extension northeasterly of the northwestern line
of the land described as Parcel III in the deed from Oakland Title Insurance
Company to Southern Pacific Company, recorded March 23, 1954, in Book 7278 OR,
page 297, (AJ/23953); thence along said direct extension south 62 degrees 30'
west 315.65 feet to the most northern corner of said Parcel III in the last
mentioned deed; and thence north 27 degrees 30' west 690 feet to the point of
beginning.
PARCEL 2:
Portion of the 66.92 acre tract of land fifthly described in the Decree of
Distribution in the Matter of the Estate of ▇▇▇▇▇▇▇ ▇▇▇▇▇, deceased, in the
Superior Court of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, a certified copy of
which decree was recorded November 22, 1948, in Book 5660 OR, page 403
(AC/88342), described as follows:
Beginning at the intersection of the northeastern line of Merced Street, 60 feet
wide, with the northwestern line of said 66.92 acre tract, thence along the
northwestern line of said 66.92 acre tract north 62 degrees 30' east 631.30
feet; thence south 27 degrees 30' east 690 feet; thence south 62 degrees 30'
west 631.30 feet to said line of Merced Street; thence along the last named line
north 27 degrees 30' west 690 feet to the point of beginning.
Exception therefrom that portion quitclaimed to the City of San Leandro by
instrument recorded October 10, 1957, Book 8490 OR, page 595, (AM/100857)
Exhibit A-1