1
Exhibit 10.9
LEASE AGREEMENT
THIS Lease is made and entered into at San Mateo, California, this 12th
day of June, 1991, by and between GREAT AMERICAN BANK, A Federal Savings Bank,
hereinafter referred to as "Lessor" and FULCRUM INNOVATIONS, INC., hereinafter
referred to as "Lessee," without regard to number or gender.
1. Leased Premises:
A. Premises: In consideration of the rents herein provided, and on the
terms, provisions and covenants hereof, Lessor hereby leases, lots and demises
to Lessee the following described premises (referred to in this lease as the
"leased premises") more particularly described in Exhibit "A," attached hereto,
located at 0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000 in the City of San Mateo,
County of San Mateo, California (referred to in this lease as "the Building").
B. Parking: Throughout the term hereof, Lessee shall have the right to
use for its employees Available parking spaces in the parking areas in
and about the Building, or in the event the Building is located in a larger
Office Complex (the land, buildings, common areas and parking areas of which
shall be referred to collectively in this lease as the "Office Complex"), then
in and about such Office Complex on the terms and conditions as may be
established by Lessor from time to time during the term of this lease. Lessor
shall have the right, but shall not be under any obligation, to designate where
such parking spaces shall be located. The parking area(s) referred to herein
shall be used on a non-exclusive basis with other tenants of the Building, or
where applicable, other tenants of the Office Complex. Parking for Lessee's
invitees shall be available in said parking area(s) on a non-exclusive,
first-come, first-serve basis with invitees of other tenants of this Building,
or where applicable, other tenants of the Office Complex upon such conditions
as Lessor may from time to time establish during the term hereof.
2. Term: Subject to and upon the conditions set forth herein, the term of
this lease shall commence on the 1st day of July, 1991, and shall end on the
31st day of July, 1992, unless sooner terminated as hereinafter provided.
Taking of possession by Lessee shall be conclusively deemed to establish that
the leased premises have been accepted and that the leased premises are in good
and satisfactory condition as of the date possession was so taken by Lessee.
3. Possession: If Lessor, for any reason whatsoever, cannot deliver
possession of the leased premises to Lessee at the commencement of the term
hereof, this lease shall not be void or voidable, nor shall Lessor be liable to
Lessee for any loss or damage resulting therefrom, nor shall the expiration
date of the above term be in any way extended, but in that event, all rent
shall be abated during the period between the commencement of the term as
provided for in Paragraph 2 hereinabove and the time when Lessor delivers
possession. In the event that Lessor shall permit Lessee to occupy the leased
premises prior to the commencement date of the term, such occupancy shall be
subject to all the provisions of this lease. Such early possession shall not
advance the termination date hereinabove provided.
4. Lease Year: A lease year shall be considered to begin on the first day
of the first full calendar month following commencement of the term hereof, or
if the term shall commence on the first day of the month, on such date and on
each subsequent anniversary date of the beginning of the first lease year.
5. Rent:
A. Base Rent: Lessee agrees to pay a base rental for the leased
premises during the lease term in the amount of Eighteen Thousand Five Hundred
Forty Dollars and No/100 ($18,540.00), payable in monthly installments of
$1,545.00, without deduction, offset, prior notice or demand, in advance on the
first day of the month to Lessor at the address shown in Paragraph 30 below.
Such base rental shall be subject to annual adjustment as hereinafter provided
in Paragraph 6 below. The first monthly installment shall be due and payable on
or before the first day of each calendar month during the term hereof. If the
commencement date of the term hereof is not the first day of a month, a
prorated monthly installment shall be paid for the fractional month during
which the lease commences and/or terminates. In addition to any rental payable
hereunder, Lessee shall pay to Lessor his prorated share of real property
taxes as set forth in Paragraph 8 below, and any adjustments to the base rental
as set forth in Paragraph 6 below.
B. Prepaid Rent: Concurrently with Lessee's execution of this lease,
Lessee shall pay to Lessor the sum of $1,545.00 to be applied against rent for
the first month of the lease term.
C. Late Charges: Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent or other sums due hereunder will cause Lessor to incur costs
not contemplated by this lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, loss of
discounts offered by vendors for prompt payment of bills, processing and
accounting charges, and late charges which may be imposed upon Lessor by terms
of any ground lease (wherein the Lessor has leased the land on which the
Building is situated) or mortgage or trust deed covering the leased premises
and the Building. Accordingly, if any installment of rent or any sum due from
Lessee shall not be received by Lessor or Lessor's designee within five (5)
days after said amount is due, then Lessee shall pay to Lessor a late charge
equal to the maximum amount permitted by law (or in the absence of any
governing law, ten percent (10%) of such overdue amount), plus any attorneys'
fees incurred by Lessor by reason of Lessee's failure to pay rent and/or other
charges when due hereunder. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Lessor will incur by
reason of the late payment by Lessee. Acceptance of such late charges by the
Lessor shall in no event constitute a waiver of Lessee's default with respect
to such overdue amount, nor prevent Lessor from exercising any of the other
rights and remedies granted hereunder.
2
7. Security Deposit: Concurrently with Lessee's execution of this lease,
Lessee shall deposit with Lessor $1,545.00 to be held by Lessor as a security
deposit for the faithful performance of all the terms, covenants, and conditions
of this lease to be kept and performed by Lessee during the term hereof. If
Lessee defaults with respect to any provisions of this lease, including but not
limited to provisions relating to the payment of rent, operating cost increases,
and other monetary sums due herewith, Lessor may use, apply or retain all or any
part of the security deposit for the payment of rent or any other amount which
Lessor may spend or become obligated to spend by reason of Lessee's default or
to compensate Lessor for any other loss or damage which Lessor may suffer by
reason of Lessee's default. If any portion of said security deposit is so used
or applied, Lessee shall within ten (10) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore the security deposit
to its original amount. Lessee's failure to do so shall be a material breach of
this lease. Lessor shall not be required to keep this security deposit separate
from its general funds and Lessee shall not be entitled to interest thereon.
Lessor's obligations with respect to the security deposit are those of a debtor
and not a trustee. If Lessee shall fully and faithfully perform every provision
of this lease to be kept by it, the security deposit or any balance thereof
shall be returned to Lessee (or, at Lessor's demand, to the last assignee of
Lessee's interest hereunder) within the following time periods after expiration
or earlier termination of the lease term: (a) when Lessor has no claims against
the security deposit or where the claim is only for defaults by Lessee in the
payment of rent, then the security deposit or the balance thereof, if any, shall
be returned no later than two (2) weeks after the date Lessor receives
possession of the leased premises, or (b) where Lessor's claim against the
security deposit includes amounts reasonably necessary to repair or clean the
leased premises, then the remaining balance thereof, if any, shall be returned
on or before thirty (30) days from the date Lessor receives possession of the
leased premises. In the event of a termination of Lessor's interest in this
lease, Lessor shall transfer said deposit to Lessor's successor in interest,
whereupon Lessee agrees to release Lessor from all liability for the return of
such deposit or the accounting thereof. In no event shall said security deposit
be applied to the rent due for the last month of the lease term except as
required by law.
8. Taxes:
A. Personal Property Taxes: Lessee shall pay prior to delinquency all taxes
assessed against and levied upon trade fixtures, furnishings, equipment and all
other personal property of Lessee contained in the leased premises or elsewhere.
When possible, Lessee shall cause said trade fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from the
real or personal property of Lessor.
3
9. LESSOR SERVICES: Lessor will pay for the electricity, gas and water
utilized in operating any and all facilities serving the leased premises, and,
in addition, Lessor will furnish Lessee, while occupying the leased premises:
A. Hot and cold water at those points of supply provided for general
use of other tenants in the Building, central heating and air conditioning,
during normal business hours on business days, and at such temperatures and in
such amounts as are considered by Lessor to be standard, janitor service on a
five (5) day week basis, electric current, routine maintenance and electric
lighting service for all public areas and special service areas, including
elevators, of the Building in the manner and to the extent deemed by the Lessor
to be standard. Failure by Lessor to any extent to furnish these defined
services, or any cessation thereof, resulting from causes beyond the control of
Lessor, shall not render Lessor liable in any respect for damages to either
person or property, nor shall such event be construed as an eviction of Lessee,
nor work an abatement of rent, or relieve Lessee from fulfillment of any
covenant or agreement hereof. Should any of the equipment or machinery break
down, or for any cause cease to function properly, Lessor shall use reasonable
diligence to repair the same promptly, but Lessee shall have no claim for rebate
of rent or damages on account of any interruptions in service occasioned thereby
or resulting therefrom so long as Lessee shall have reasonable access to and use
of the leased premises.
B. Adequate electrical facilities to furnish power for typewriters,
voice writers, calculating machines and other machines of similar low electrical
consumption; provided, however, that Lessee shall bear any utility costs
occasioned by electro-data processing machines, including air conditioning costs
therefor and similar machines of high electrical consumption.
10. QUIET ENJOYMENT: Lessor warrants that it has full right to execute and
to perform this lease and to grant the estate demised herein and that Lessee,
upon payment of the rents herein required, and performing the terms, conditions,
covenants and agreements herein contained, shall peaceably and quietly have,
hold and enjoy the leased premises during the full term of this lease and any
extension or renewal thereof.
11. REPAIRS AND MAINTENANCE: Except as provided in paragraph 9 above,
Lessee shall, at all times during the term hereof at its sole cost and expense,
keep the premises and every part thereof in good condition and repair, except
damage thereto by fire, earthquake, act of God or the elements, Lessee hereby
waiving the right to make repairs at Lessor's expense under any law, statute or
ordinance with respect thereto now or hereafter in effect. Unless otherwise
expressly provided herein, Lessor shall not be required to make any improvements
or repairs of any kind or character on the leased premises during the term of
this lease. Lessee shall, at its own cost and expense, repair or replace any
damage or injury to the leased premises, or any part thereof, caused by Lessee
or Lessee's agents, employees, invitees, licensees or visitors; provided,
however, if Lessee fails to make such repairs or replacements promptly, Lessor
may, at its option, make such repairs or replacements, and lessee shall
reimburse the cost thereof to Lessor on demand, together with interest at the
maximum annual rate permitted by law from the date of such work.
Lessee shall not commit or allow any waste or damage to be
committed on any portion of the leased premises.
12. ASSIGNMENT, SUBLEASE, MORTGAGE, CHANGE IN CORPORATE OWNERSHIP, RIGHT
OF FIRST REFUSAL: Lessee shall not, and shall not have the power to, transfer,
assign, sublet, enter into license or concession agreements, change ownership,
mortgage or hypothecate this lease or the Lessee's interest in and to the leased
premises without first procuring the written consent of the Lessor. Any
attempted or purported transfer, assignment, subletting, license or concession
agreement, change of ownership, mortgage or hypothecation without the Lessor's
written consent shall be void and confer no rights upon any third person.
Without in any way limiting Lessor's right to refuse to give such consent for
any other reason or reasons, Lessor reserves the right to refuse to give such
consent if, in Lessor's reasonable business judgment, the quality of the
Building's operation or tenant mix is or may be in any way adversely affected
during the term of the lease and/or the financial worth of the proposed new
tenant is less that of the Lessee executing this lease or of Lessee and Lessee's
guarantor as the case may be. As a condition for granting its consent to any
subletting, Lessor may require that Lessee pay to Lessor, as additional rent,
all rents or other economic consideration received by Lessee from its Sublessees
in excess of the rents payable by Lessee to Lessor hereunder. Nothing herein
contained shall relieve Lessee or any guarantor from its covenants and
obligations for the term of this lease. Lessee agrees to reimburse Lessor for
Lessor's reasonable attorney's fees incurred in conjunction with the processing
and documentation of any such requested transfer, assignment, subletting,
license or concession agreement, change of ownership, mortgage or hypothecation
of this lease or Lessee's interest in and to the leased premises.
Each transfer, assignment, subletting, license, concession agreement,
mortgage or hypothecation to which there has been consent shall be by an
instrument in writing in form satisfactory to Lessor, and shall be executed by
the transferor, assignor, sublessor, licensor, concessionaire or mortgagee in
each instance, as the case may be; and each transferee, assignee, sublessee,
licensee, concessionaire or mortgagee shall agree in writing for the benefit of
the Lessor herein to assume, to be bound by, and to perform the terms, covenants
and conditions of this lease to be done, kept and performed by the Lessee,
including the payment of all amounts due or to become due under this lease
directly to the Lessor. One executed copy of such written instrument shall be
delivered to the Lessor. Failure to first obtain in writing Lessor's consent or
failure to comply with the provisions of this Paragraph shall operate to prevent
any such transfer, assignment, subletting, license, concession agreement or
hypothecation from becoming effective. No Assignee or Sublessee shall have a
right further to assign or sublet or a right to exercise any option hereunder to
extend the term of this lease.
If the Lessee hereunder is a corporation which is not deemed a public
corporation, or is an unincorporated association or partnership, the transfer,
assignment or hypothecation of any stock or interest in such corporation,
association or partnership in the aggregate in excess of twenty-five percent
(25%) shall be deemed an assignment within the meaning of provisions of this
Paragraph 12.
Notwithstanding anything to the contrary contained herein, if at any
time during the term of this lease Lessee shall receive a bona fide offer from
any third party seeking an assignment, sublet or other transfer of Lessee's
interest in this lease. Lessee shall serve on Lessor a written notice of the
terms of such offer from such third party and of Lessee's intention to accept
the same. Lessor shall have the right for a period of thirty (30) days from the
date of delivery of such notice to assume said assignment, sublease or other
such transfer of Lessee's interest in this lease on the same terms and
conditions specified in the notice. In the event that Lessor shall not within
said thirty (30) day period elect to assume said assignment, sublease or other
such transfer of Lessee's interest in this lease, then Lessee may, subject to
obtaining Lessor's prior written approval in accordance with this Paragraph 12,
assign, sublet or transfer Lessee's interest in this lease on the same terms and
conditions and to the third party specified in the notice; provided that if
Lessee does not assign, sublet or otherwise transfer Lessee's interest in this
lease to said third party within sixty (60) days of the date of the delivery of
Lessee's notice to Lessor, any further transaction shall be deemed to be a new
determination by Lessee to assign, sublet or otherwise transfer Lessee's
interest in this lease and the provisions of this paragraph shall apply.
13. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make or allow to be
made any alterations or physical additions in or to the leased premises without
first obtaining the written consent of Lessor. Any and all such alterations,
physical additions or improvements to the leased premises shall be surrendered
to Lessor upon the termination of this lease, by lapse of time or otherwise and
shall become Lessor's property without compensation, allowance or credit to
Lessee; provided, however, this clause shall not apply to moveable equipment,
trade fixtures or furniture of Lessee, which may be removed by Lessee at the end
of the term of the lease if Lessee is not then in default. If prior to such
termination or within ten (10) days thereafter, Lessor so directs by notice,
Lessee shall promptly remove the installations, additions, hardware, non-trade
fixtures and improvements placed in the leased premises by Lessee and designated
in the notice, failing which Lessor may store or remove the same for Lessee's
account and Lessee shall pay the costs of such removal and storage and of any
necessary restoration of the leased premises.
14. USE: Lessee shall use and occupy the leased premises for business
offices and for no other purpose. Lessee shall not occupy or use, or permit any
portion of the leased premises to be occupied or used for any business or
purpose which is unlawful, or extra-hazardous, or permit anything to be done
which would in any way increase the rate of fire insurance coverage in said
leased premises and/or the contents of the Building, and in the event that, by
reason of such acts of Lessee, there shall be any increase in the insurance
rates of the building or contents above normal rates, or cancellation of the
insurance, Lessee agrees to pay to Lessor, as additional rental, an amount equal
to all such increases.
15. COMPLIANCE WITH LAWS AND RULES OF BUILDING: Lessee shall comply with
all laws, ordinances, orders, rules and regulations (state, federal, municipal
and other, agencies or bodies having any jurisdiction thereof) relating to the
use, condition or occupancy of the leased premises. Lessee will comply with the
rules of the Building adopted by Lessor which are set forth on a schedule
attached hereto and made a part hereof as fully as though set forth herein.
Lessor shall have the right if necessary to change such rules and regulations or
to amend them in any reasonable manner for reasons including, without
limitation, maintaining the safety, care and cleanliness of the lease premises,
energy conservation, compliance with any and all regulatory orders, and the
preservation of good order therein, all of which changes and amendments will be
sent by Lessor to Lessee in writing and shall be thereafter carried out and
observed by Lessee.
4
16. Lessor's Right of Entry: Lessee shall permit Lessor or its agents or
representatives to enter (illegible) upon any part of the (illegible) at all
reasonable hours upon reasonable prior notice (except in the case of
emergencies), to inspect (illegible) clean or make repairs, alterations
(illegible) thereto, as Lessor may deem necessary or desirable, or for the
purpose of determining Lessee's use thereof or whether an act of default under
this lease has occurred. Lessee shall not be entitled to any abatement or
reduction of rent or to any damages for any injury or inconvenience to or
interference with Lessee's business, any loss of occupancy or quiet enjoyment of
the leased premises by reason of any such repairs, (illegible) or additions
reasonably required to be made by Lessor hereunder.
17. Nuisance: Lessee shall conduct its business and control its agents,
employees, invitees and visitors in such a manner as not to create any nuisance
or interfere with, annoy, or disturb any other tenant or Lessor in its
management of the Building.
18. Condemnation: Should the whole or any part of the leased premises be
condemned and taken by any competent authority for any public or quasi-public
use or purpose, all awards payable on account of such condemnation and taking
shall be payable to Lessor, and Lessee hereby waives all interest in or claim to
said awards, or any part thereof. If the whole of the leased premises shall be
so condemned and taken, then this lease shall terminate. If a part only of the
leased premises is condemned and taken and the remaining portion thereof is not
suitable for the purposes for which Lessee had leased said premises, Lessee
shall have the right to terminate this lease. If by such condemnation and taking
part only of the leased premises is taken, and the remaining part thereof is
suitable for the purposes for which Lessee has leased said premises, this lease
shall continue, but the rental shall be reduced in an amount proportionate to
the value of the portion taken as it related to the total value of the leased
premises.
19. Destruction: If, during the term, the leased premises or the Building
and other improvements in which the leased premises are located are totally or
partially destroyed from any cause, rendering the leased premises totally or
partially inaccessible or unusable, Lessor shall restore the leased premises or
the Building and other improvements in which the leased premises are located to
substantially the same condition as they were in immediately before destruction,
if the restoration can be made under the existing laws and can be completed
within 90 working days after the date of the destruction. Such destruction shall
not terminate this lease. The provisions of Section 1933, subparagraph 4, of the
Civil Code of California are hereby waived by Lessee.
If the restoration cannot be made in the time stated in this paragraph,
then within 21 working days after the parties determine that the restoration
cannot be made in the time stated in this paragraph, Lessee can terminate this
lease immediately by giving notice to Lessor. If Lessee fails to terminate this
lease and if restoration is permitted under the existing laws, Lessor, at its
election, can either terminate this lease or restore the leased premises or the
Building and other improvements in which the leased premises are located within
a reasonable time and this lease shall continue in full force and effect. If the
existing laws do not permit the restoration, either party can terminate this
lease immediately by giving notice to the other party.
In the event of restoration as herein provided, Lessee shall be entitled to
a proportionate reduction of the rent while such restoration is being made, such
proportionate reduction to be based upon the extent to which the making of such
restoration shall materially interfere with the business carried on by the
Lessee in the leased premises. If the damage is due to the fault or neglect of
Lessee or its employees, there shall be no abatement of rent.
Notwithstanding anything to the contrary contained in this paragraph,
Lessor shall not have any obligation whatsoever to repair, reconstruct or
restore the leased premises when the damage resulting from any casualty covered
under this paragraph occurs during the last twelve (12) months of the term of
this lease or any extension thereof.
Lessor shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs or replacements of any panels, decoration,
office fixtures, railings, floor covering, partitions, or any other property
installed in the leased premises by Lessee.
20. Insurance: From and after the date that Lessee enters into possession
of the leased premises as permitted by the terms hereof and throughout the term
of this lease, Lessee shall at its sole cost and expense provide and keep in
full force and effect the following insurance:
A. General liability insurance in standard form insuring Lessee and
Lessor as insureds against any liability whatsoever, occasioned by accident or
disaster on, in or about the leased premises with limits of not less than
$500,000 for one person in one accident and $1,000,000 with respect to one
occurrence.
B. Property damage insurance in an amount not less than $100,000.
C. Fire and extended coverage insurance in all risk form insuring the
interest of the Lessee in the Lessee's improvements in the leased premises and
its interest in its office furniture, equipment and supplies. Lessee hereby
waives any rights of action against Lessor, including rights of subrogation, for
loss or damage covered by such insurance.
Insurance required hereunder shall be in companies rated A+, AAA or
better in "Best's Insurance Guide." In addition, the insurance required
hereunder shall be primary insurance and shall provide that the insurer shall be
liable for the full amount of the loss up to and including the total amount of
liability set forth above without the right of contribution from any other
insurance coverage of Lessor.
All premiums on all policies referred to in this section shall be paid
by Lessee. Duplicate originals or certificates of such policies shall be
delivered to Lessor and any others named pursuant to this section, immediately
upon receipt thereof from the insurance company or companies, but in no event
later than the commencement date of this lease. Duplicate originals or
certificates of renewal policies or new policies replacing any policies expiring
during the term hereof shall be delivered to Lessor at least twenty (20) days
before the date of expiration of the old or replaced policies, together with
proof satisfactory to Lessor that the full premiums have been paid by Lessee on
the new policies. Premiums on policies shall not be financed in any manner
whereby the lender, on default or otherwise, shall have the right or privilege
of surrendering or cancelling the policy. Each insurance policy required
hereunder shall by its terms provide that it shall not be modified without the
prior consent of Lessor and shall not be cancelled unless ten (10) days notice
thereof is given by the insurer to Lessor.
On default by Lessee in obtaining any insurance required hereunder or
delivering any policies or paying the premiums or other charges thereon as
aforesaid, it shall be the privilege, though not the obligation, of Lessor to
effect fully such insurance and likewise to pay any premiums or charges thereon.
All sums so paid by Lessor and all costs and expenses incurred by Lessor in
connection therewith, together with interest thereon at the maximum annual rate
permitted under Section 1(2) of Article XV of the California Constitution, from
the respective dates of Lessor's making of each such payment, shall constitute
additional rent payable by Lessee under this lease and shall be paid by Lessee
to Lessor on demand, and Lessor shall not be limited in the proof of any damages
which Lessor may claim against Lessee arising out of or by reason of Lessee's
failure to provide and keep in force insurance as aforesaid, to the amount of
the insurance premium or premiums not paid or incurred by Lessee and which would
have been payable.
21. Surrender of Leased Premises: Lessee shall, at least ninety (90) days
before the last day of the term hereof, give to Lessor a written notice of
intention to surrender the leased premises on that date, but nothing contained
herein shall be construed as an extension of the term hereof or as consent of
Lessor to any holding over by Lessee.
At the end of the term or any renewal thereof or other sooner
termination of this lease, Lessee will peaceably deliver up to the Lessor
possession of the leased premises, together with all improvements or additions
upon or belonging to the same, by whomsoever made, in the same condition as
received, or first installed, ordinary wear and tear and damage by fire,
earthquake, act of God or the elements alone excepted. Lessee may, upon the
termination of this lease, remove, at Lessee's sole cost, all trade fixtures
installed by Lessee, title to which shall be in Lessee until such termination,
repairing any damage to the leased premises caused by such removal. Any of
Lessee's personal property and trade fixtures not removed by Lessee at the end
of the term or other sooner termination of this lease shall be deemed abandoned
by the Lessee if Lessor so elects, and Lessor shall remove, store and dispose of
such personal property and trade fixtures in accordance with law. Lessee shall
be liable to Lessor for Lessor's costs incurred in removing, storing and
disposing of Lessee's abandoned personal property and trade fixtures. Lessee
shall indemnify Lessor against any loss or liability resulting from delay by
Lessee in so surrendering the leased premises, including without limitation, any
claims made by any succeeding lessee founded on such delay.
The voluntary or other surrender of this lease by Lessee, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Lessor, terminate all or any existing subleases or subtenancies, or may, at the
option of Lessor, operate as an assignment to it of any or all such subleases or
subtenancies.
22. Holding Over: Lessee hereby acknowledges that any holding over after
the expiration of the lease term by Lessee will cause Lessor to incur damages
not contemplated by this lease, the exact amount of which will be extremely
difficult to ascertain. Such damages include, but are not limited to, loss of
rental income and claims for damages from a future tenant to whom the Lessor is
obligated to deliver possession during the holdover period and costs incurred in
locating prospective new tenants. Accordingly, in the event of holding over by
Lessee, Lessee shall pay Lessor as rental for the period of such holdover an
amount equal to one hundred fifty percent (150%) of the rent which would have
been payable by Lessee had such holdover period been a part of the original term
of this lease.
5
23. Default Lessor's Remedies:
A. Default: The occurrence of any of the following shall constitute a
material breach of this lease by Lessee:
(i) Any failure by Lessee to pay rent or any other monetary sum required
to be paid hereunder (where such failure continues for three (3) days after
written notice thereof from Lessor to Lessee).
(ii) The abandonment or vacation of the leased premises by Lessee.
(iii) The failure by Lessee to observe and perform any other provision
of this lease to be observed or performed by Lessee, where such failure
continues for twenty (20) days after written notice thereof by Lessor to Lessee.
Provided, however, that if the nature of such default is such that it cannot
reasonably be cured within such twenty (20) day period, Lessee shall not be
deemed to be in default if Lessee shall within such period commence such cure
and thereafter diligently prosecute the same to completion.
B. Remedies: In the event of any such material default or breach by Lessee,
Lessor may at any time thereafter without limiting Lessor in the exercise of any
right or remedy at law or in equity which lessor may have by reason of such
default or breach:
(i) Maintain this lease in full force and effect and recover the rent
and other monetary charges as they become due without terminating Lessee's right
to possession, irrespective of whether Lessee shall have abandoned the leased
premises. In the event Lessor elects not to terminate the lease. Lessor shall
have the right to attempt to relet the leased premises at such rent and upon
such conditions and for such a term, and to do all acts necessary to maintain or
preserve the leased premises as Lessor deems reasonable and necessary without
being deemed to have elected to terminate this lease, including removal of all
persons and property in the leased premises, such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of
Lessee. In the event any such reletting occurs, this lease shall terminate
automatically upon the new Lessee taking possession of the leased premises.
Notwithstanding that Lessor fails to elect to terminate this lease initially,
Lessor at any time during the term of this lease may elect to terminate this
lease by virtue of such previous default by Lessee.
(ii) Terminate Lessee's right to possession by any lawful means, in
which case this lease shall terminate and Lessee shall immediately surrender
possession of the leased premises to Lessor. In such event, Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by reason of
Lessee's default, including without limitation thereto, the following: (a) the
worth at the time of award of any unpaid rent which had been earned at the time
of such termination; plus (b) 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 the award exceeds the amount of such rental loss that is proved could
have been reasonably avoided; plus (c) 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 exceed the amount of such rental loss that is proved could be reasonably
avoided; plus (d) any other amount necessary to compensate Lessor for all the
detriment proximately caused by Lessee's failure to perform his obligations
under this lease or which in the ordinary course of events would be likely to
result therefrom; plus (e) in Lessor's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time by
applicable state law. Upon such re-entry, Lessor shall have the right to make
any reasonable repairs, alterations, or modifications to the leased premises,
which Lessor, in its sole discretion, deems reasonable and necessary. As used in
subparagraph (a) above, the "worth at the time of award" is computed by allowing
interest at the maximum annual rate permitted by law from the date of default.
As used in subparagraphs (b) and (c) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the U.S. Federal
Reserve Bank at the time of award plus one percent (1%). The term "rent", as
used in this Paragraph 23, shall be deemed to be and to mean the rent to be paid
pursuant to Paragraphs 5, 6 and 8 and all other monetary sums required to be
paid by Lessee pursuant to the terms of this lease.
24. Waiver of Breach: Failure of Lessor to declare any default immediately
upon occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such default at any time and take such action as might be lawful
or authorized hereunder, either in law or in equity.
25. Attorney's Fees: in the event of any action or proceeding brought by
either party against the other under this lease, the prevailing party shall be
entitled to recover all costs and expenses, including the fees of its attorneys
in such action or proceeding in such amount as the court may adjudge reasonable
as attorneys' fees.
26. Waiver of Subrogation: Anything in this lease to the contrary
notwithstanding each party hereby waives any and all rights of recovery, claim,
action or cause of action against the other, its agents, officers and employees,
for any loss or damages that may occur to the leased premises or any
improvements thereto or the Building of which the leased premises are a part, or
any improvements thereto, by reason of fire, the elements or any other cause
which could be insured against under the terms of standard fire and extended
coverage insurance policies, regardless of cause or origin, including negligence
of the parties hereto, their agents, officers and employees.
27. Signs: Lessor has not conveyed to the Lessee any rights in or to the
outer side of the outside walls of the Building of which the leased premises
forms a part. The Lessee shall not display or erect any lettering, sign,
advertisement, awning, or other projection in or on the leased premises or in or
on the Building, or make any alteration, decoration, addition or improvements in
or to the leased premises, or in or to the Building, without the prior written
consent of the Lessor. If such consent is granted, the Lessee, at its sole
expense, shall carry such workmen's compensation and general liability insurance
as the Lessor may require.
28. Hold Harmless: Lessee shall hold Lessor harmless from all damages
arising out of any damage to any person or property occurring in, on, or about
the leased premises and the Building in which the leased premises are located,
except that Lessor shall be liable to Lessee for damage resulting from the acts
or omissions of Lessor or its authorized representatives. Lessor shall hold
Lessee harmless from all damages arising out of any such damage. A party's
obligation under this paragraph to indemnify and hold the other party harmless
shall be limited to the sum that exceeds the amount of insurance proceeds, if
any, received by the party being indemnified.
29. Liens: Lessee shall keep the leased premises and the Building of which
the leased premises are a part free from any liens arising out of work
performed, materials furnished, or obligations incurred by Lessee and shall
indemnify, hold harmless and defend Lessor from any liens and encumbrances
arising out of any work performed or materials furnished by or at the direction
of Lessee. In the event that Lessee shall not, within twenty (20) days following
the imposition of any such lien, cause such lien to be released of record by
payment or posting of proper bond, Lessor shall have, in addition to all other
remedies provided herein and by law, the right, but no obligation, to cause
the same to be released by such means as it shall deem proper, including payment
of the claim giving rise to such lien. All such sums paid by Lessor and all
expenses incurred by it in connection therewith, including attorneys' fees and
costs, shall be payable to Lessor by Lessee on demand with interest at the
maximum annual rate permitted by law. Lessor shall have the right at all times
to post and keep posted on the leased premises any notices permitted or required
by law, or which Lessor shall deem proper, for the protection of Lessor and the
leased premises, and any other party having an interest therein, for mechanics'
and materialmen's liens, and Lessee shall give to Lessor at least ten (10)
business days' prior written notice of the expected date of commencement of any
work relating to alterations to the leased premises.
30. Notices: In every instance where it shall be necessary or desirable for
the Lessee to serve any notice or demand upon the Lessor, such notice or demand
shall be sent by United States Registered or Certified Mail, postage prepaid,
addressed to the Lessor at 0000 X. Xxxxxxxx, Xxxxx 000, Xxx Xxxxx, XX or at such
other address of Lessor as may appear on the records of Lessee. Any notice or
demand to be given by the Lessor to the Lessee shall be effective if mailed or
delivered to the office of the Lessee in the leased premised or at such other
address as may appear on the records of the Lessor. Notice mailed as aforesaid
shall be deemed to have been served at the time the same is posted. Rent shall
be mailed to: 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000.
31. Subordination: Attornment: At Lessor's option, this lease shall be
subject and subordinate to all ground and underlying leases which now exist or
may hereinafter be executed affecting the Building or the land upon which the
Building is situated or both, and to the lien of any mortgages or deeds of trust
in any amount or amounts whatsoever now or hereafter placed on or against the
land or improvements of which the leased premises are a part, on or against
Lessor's interest or estate therein, or on or against any ground or underlying
lease, without the necessity of the execution and delivery of any further
instruments on the part of Lessee to effectuate such subordination. If any
mortgagee, trustee or ground lessor shall elect to have this lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, his lease shall be deemed prior to such mortgage, deed
of trust or ground lease, whether this lease is dated prior or subsequent to the
date of said mortgage, deed of trust or ground lease or the date of the
recording thereof. Lessee covenants and agrees to execute and deliver upon
demand without charge therefor, such further instruments evidencing such
subordination of this lease to such ground or underlying leases and to the lien
of any such mortgages or deeds of trust as may be required by Lessor. Lessee
hereby appoints Lessor as Lessee's attorney-in-fact, irrevocably, to execute and
deliver any such agreements, instruments, releases or other documents.
6
In the event any proceedings are brought for default under any ground or
any underlying lease or in the event of foreclosure or the exercise of the power
of sale under any mortgage or deed of trust made by Lessor covering the Building
of which the leased premises are a part, Lessee shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as Lessor under
this lease, provided such purchaser expressly agrees in writing to be bound by
the terms of the lease.
32. Estoppel Certificate: Lessee shall within ten (10) days after receipt
of a request therefor from Lessor, execute, acknowledge and deliver to Lessor a
statement in writing (a) certifying that this lease is unmodified and in full
force and effect (or, if modified, is in full force and effect) and the date to
which rent and other charges are paid in advance, if any and (b) acknowledging
that there are not, to Lessee's knowledge, any uncured defaults on the part of
Lessor hereunder, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by a prospective purchaser or
encumbrancer of the Building of which the leased premises are a part. Lessee's
failure to execute such statement within such time shall be conclusive upon
Lessee (i) that this lease is in full force and effect without modification
except as may be represented by Lessor, (ii) that there are no uncured defaults
in Lessor's performance, and (iii) that not more than one month's rent has been
paid in advance. If Lessor desires to finance or refinance said Building in
which the leased premises are a part, Lessee hereby agrees to deliver to any
lender designated by Lessor such financial statements of Lessee as may be
reasonably required by such lender. All such statements shall be received by
Lessor in confidence and shall be used only for the purpose herein set forth.
33. Transfer of Lessor's interest: In the event of a sale or conveyance by
Lessor of Lessor's interest in the building of which the leased premises form a
part other than a transfer for security purposes only, Lessor shall be relieved,
from and after the date specified in such notice of transfer, of all obligations
and liabilities accruing thereafter on the part of Lessor, provided that any
funds in the hands of Lessor at the time of transfer in which Lessee has an
interest, shall be delivered to the successor of Lessor. This lease shall not be
affected by any such sale and Lessee agrees to attorn to the purchaser or
assignee provided all Lessor's obligations hereunder are assumed in writing by
the transferee.
34. Insolvency or Bankruptcy of Lessee: The insolvency of Lessee pursuant
to California law with respect to the appointment of a receiver to take
possession of all or substantially all of the property of Lessee, or the making
of a general assignment for the benefit of creditors by Lessee shall terminate
this lease and entitle Lessor to re-enter and regain possession of the leased
premises. In the event that there shall be filed by or against Lessee a petition
in bankruptcy or for reorganization pursuant to any statute of the United
States, the rights of Lessor and Lessee shall be determined, if applicable, by
the provisions of the Bankruptcy Reform Act of 1978 or any successor statute
hereafter in effect.
35. General:
A. This lease shall be binding and inure to the benefit of the parties
hereto and their respective heirs, personal representatives, successors and
assigns.
B. This agreement may not be altered, changed or amended, except by an
instrument in writing, signed by both parties.
C. This instrument along with any exhibits and attachments hereto
constitutes the entire agreement between Lessor and Lessee relative to the
leased premises. Lessor and Lessee agree hereby that all prior or
contemporaneous oral agreements between and among themselves and their agents or
representatives relative to the leasing of the leased premises are merged in or
revoked by this agreement.
D. If any term or provision of this lease shall, to any extent, be
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this lease shall not be affected thereby, and each term and
provision of this lease shall be valid and enforceable to the fullest extent
permitted by law.
E. The captions of the paragraphs of this lease are for convenience only
and shall not be deemed to be relevant in resolving any question of
interpretation or construction of any paragraphs of this lease. Exhibits
attached hereto, and addendums and schedules initialed by the parties, are
deemed by attachment to constitute part of this lease and are incorporated
herein.
F. the words "Lessor" and Lessee," as used herein, shall include the
plural as well as the singular. Words used in neutral gender include the
masculine and feminine and words in the masculine or feminine gender include the
neuter. If there be more than one Lessor or Lessee, the obligations hereunder
imposed upon Lessor or Lessee shall be joint and several. If the Lessees are
husband and wife, the obligations shall extend individually to their sole and
separate property as well as to their community property.
G. The word "rent" as used herein, shall include minimum monthly rent,
prepaid rent, percentage rent, if any, adjustments to rent, security deposit,
real property taxes and assessments, common area charges, operating costs and
any other similar charges payable by Lessee to Lessor.
H. Time is of the essence of this lease and each and every provision
hereof. All the terms, covenants, and conditions contained in this lease to be
performed by either party, if such party shall consist of more than one person
or organization, shall be deemed to be joint and several, and all rights and
remedies of the parties shall be cumulative and non-exclusive of any other
remedy at law or in equity.
I. No covenant, term or condition or the breach thereof shall be deemed
waived, except by written consent of the party against whom the waiver is
claimed, and any waiver or the breach of any covenant, term or condition shall
not be deemed to be a waiver of any proceeding or succeeding breach of the same
or any other covenant, term or condition. Acceptance by Lessor of any
performance by Lessee after the time the same shall have become due shall not
constitute a waiver by Lessor of the breach or default of any covenant, term or
condition or otherwise expressly agreed to by Lessor in writing.
J. Except as limited elsewhere in this lease, wherever in this lease
Lessor or Lessee is required to give its consent or approval to any action on
the part of the other, such consent or approval shall not be unreasonably
withheld. In the event of failure to give any such consent, the other party
shall be entitled to specific performance at law and shall have other remedies
as are reserved to it under this lease, but in no event shall Lessor or Lessee
be responsible in monetary damages for failure to give consent unless said
consent is withheld maliciously or in bad faith.
7
K. If Lessee is a corporation, each individual executing this lease on
behalf of said corporation represents and warrants that he/she is duly
authorized to execute and deliver this lease on behalf of said corporation in
accordance with a duly adopted resolution of the Board of Directors of said
corporation or in accordance with the Bylaws of said corporation, and that this
lease is binding upon said corporation in accordance with its terms. If Lessee
is a corporation, Lessee shall, within thirty (30) days after execution of this
lease, deliver to Lessor a certified copy of the resolution of the Board of
Directors of said corporation authorizing or ratifying the execution of this
lease.
L. All reference to the lease term shall include any extensions of such
term.
36. Rights Reserved to Lessor: Lessor shall have the following rights
exercisable without notice, unless otherwise herein provided, and without
liability to Lessor for damage or injury to property, person or business (all
claims for damage being hereby released), and without effecting an eviction or
disturbance of Lessee's use or possession or giving rise to any claim for
setoffs, or abatement of rent:
A. Lessor shall have the right to relocate the leased premises to another
part of the Office Complex in which the leased premises are located in
accordance with the following:
(i) The new premises shall be substantially the same in size,
dimensions, configuration, decor and nature as the leased premises described in
this lease and shall be placed in that condition by Lessor at its cost.
(ii) The physical relocation of the premises shall be accomplished by
Lessor at its cost.
(iii) Lessor shall give Lessee at least thirty (30) days notice of
Lessor's intention to relocate the leased premises.
(iv) The physical relocation of the leased premises shall take place
during evenings, weekends, or otherwise so as to incur the least inconvenience
to Lessee.
(v) All reasonable costs incurred by Lessee as a result of the
relocation shall be paid by Lessor.
(vi) If the relocated premises are smaller than the leased premises
as they existed before the relocation, rent shall be reduced to a sum computed
by multiplying the rent specified in Paragraphs 5 and 6 hereof by a fraction,
the numerator of which shall be the total number of net rentable square feet in
the relocated premises, and the denominator of which shall be the total number
of net rentable square feet in the leased premises before relocation.
(vii) The parties immediately shall execute an amendment to this
lease stating the relocation of the leased premises and the reduction of rent,
if any.
(viii) Should Lessee refuse to permit Lessor to relocate Lessee to
such new premises at the end of the said thirty (30) day period, such refusal
shall constitute a default by Lessee pursuant to paragraph 23A (iii) of this
lease.
B. To change the name or street address of the Building in which the
leased premises are located.
C. To install and maintain signs on the exterior and interior of the
Building in which the leased premises are located.
D. To designate all sources furnishing sign painting and lettering, ice,
mineral or drinking water, beverages, foods, towels, vending machines or toilet
supplies used or consumed on the leased premises.
E. To have pass keys to the leased premises.
8
F. To decorate, remodel, repair, alter or otherwise prepare the leased
premises for occupancy during the last six months of the term hereof, if during
or prior to such time Lessee vacates the leased premises, or at any time after
Lessee abandons the leased premises.
G. To enter the leased premises at reasonable hours to make inspections, or
to exhibit the leased premises to prospective tenants, purchasers, others, or
for other reasonable purposes.
H. To approve the weight, size and location of safes, computers, and other
heavy articles in and about the leased premises and the Building and to
require all such items and other office furniture and equipment to be moved in
and out of the Building and leased premises only at such times and in such
manner as Lessor shall direct and in all events at Lessee's sole risk and
responsibility.
I. At any time or times, to decorate and to make, at its own expense,
repairs, alterations, additions and improvements, structural or otherwise, in or
to the leased premises, the Building or part thereof, and to perform any acts
related to the safety, protection or preservation thereof, and during such
operations to take into and through the leased premises or any part of the
Building all material and equipment required to close or temporarily suspend
operation of entrances, doors, corridors, elevators or other facilities,
provided that Lessor shall cause as little inconvenience or annoyance to Lessee
as is reasonably necessary in the circumstances. Lessor may do any such work
during ordinary business hours and Lessee shall pay Lessor for overtime and for
any other expenses incurred if such work is done during other hours at Lessee's
request.
J. To do or permit to be done any work in or about the leased premises or
the Building or any adjacent or nearby building, land, street or alley.
K. To grant to anyone the exclusive right to conduct any business or render
any service in the Building, provided such exclusive right shall not operate to
exclude Lessee from the use expressly permitted by Paragraph 14 of this lease.
9
37. No Option: The submission of this Lease by Landlord, its agent or
representative for examination or execution by Tenant does not constitute an
option or offer to lease the Premises upon terms and conditions contained
herein or a reservation of the Premises in favor of Tenant, it being intended
hereby that this lease shall only become effective upon the execution hereof by
Landlord and delivery of a fully executed counterpart hereof to Tenant.
38. Tenant Improvements: Lessor to paint space and shampoo carpets.
39. Rent Abatement: Lessor to grant Lessee one (1) month of free rent to be
used for the month of July 1991.
Dated: 6/27/91 LESSOR: GREAT AMERICAN BANK
A Federal Savings Bank
By: GREAT AMERICAN ASSET MANAGEMENT
COMPANY, AGENT
By: /s/ Xxxxxxx Xxxx
________________________________
Xxxxxxx Xxxx, President
By: /s/ Xxxxx X. Bride
________________________________
Xxxxx X. Bride, Senior Vice
President
Dated: 6/18/91 LESSEE: FULCRUM INNOVATIONS, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
________________________________
Xxxxxxxxxxx Xxxxx
Title: President
By: /s/ Xxxxx Xxxxxxxxx
________________________________
Xxxxx Xxxxxxxxx
Title: Vice President
10
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building/Office Complex or the leased premises without the prior
written consent of Lessor and Lessor shall have the right to remove any such
sign, placard, picture, advertisement, name or notice without notice to and at
the expense of Lessee.
All approved signs or lettering on doors shall be printed, painted, affixed
or inscribed at the expense of Lessee by a person approved of by Lessor.
Lessee shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly from
outside the leased premises; provided, however, that Lessor may furnish and
install a sliding standard window covering at all exterior windows. Lessee shall
not without prior written consent of Lessor cover or otherwise sunscreen any
window.
2. Lessor shall approve in writing, prior to installation, the method of
attachment of any objects affixed to walls, ceilings, or doors.
3. The bulletin board or directory of the Building/Office Complex will be
provided exclusively for the display of the name and location of Lessee only and
Lessor reserves the right to exclude any other names therefrom.
4. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Lessee or used by Lessee for any purpose
other than ingress to and egress from the leased premises. The halls, passages,
exits, entrances, elevators, stairways, balconies and roof are not for the use
of the general public and the Lessor shall in all cases retain the right to
control and prevent access thereto by all persons whose presence in the
judgement of the Lessor shall be prejudicial to the safety, character,
reputation and interests of the Building/Office Complex and its Lessees,
provided that nothing herein contained shall be construed to prevent such access
to persons with whom the Lessee normally deals in the ordinary course of
Lessee's business unless such persons are engaged in illegal activities. No
Lessee and no employees or invitees of any Lessee shall go upon the roof of the
Building/Office Complex.
5. Locks -- No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by Lessee, nor shall any changes be made in existing
locks or the mechanisms thereof without the prior written consent of the Lessor.
Lessee must, upon the termination of Lessee's tenancy, restore to Lessor all
keys of storage, offices and toilet rooms either furnished to or otherwise
procured by Lessee and in the event of the loss of any keys so furnished Lessee
shall pay to Lessor the cost thereof or of changing the lock or locks opened by
lost keys if Lessor deems it necessary to make a change.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Lessee who, or whose employees or invitees, shall have
caused it.
7. Lessee shall not overload the floor of the leased premises or xxxx,
drive nails, screw or drill into the partitions, woodwork or plaster or in any
way deface the leased premises or any part thereof. No boring, cutting or
stringing of wires shall be permitted except with the prior written consent of
the Lessor and as the Lessor may direct.
8. No furniture, freight or equipment of any kind shall be brought into the
Building/Office Complex without the consent of Lessor and all moving of the same
into or out of the Building/Office Complex shall be done at such time and in
such manner as Lessor shall designate. Lessor shall have the right to prescribe
the weight, size and position of all safes and other heavy equipment brought
into the Building/Office Complex and also the times and manner of moving the
same in and out of the Building/Office Complex. Safes or other heavy objects
shall, if considered necessary by Lessor, stand on wood strips of such thickness
as is necessary to properly distribute the weight. Lessor will not be
responsible for loss of or damage to any such safe or property from any cause
and all damage done to the Building/Office Complex by moving or maintaining any
such safe or other property shall be repaired at the expense of Lessee. There
shall not be used in any space, or in the public halls of the Building/Office
Complex, either by any Lessee or others, any hand trucks except those equipped
with rubber tires and side guards.
9. Janitorial Service -- Lessee shall not employ any person or persons for
the purpose of cleaning the leased premises without the consent of Lessor.
Lessor shall be in nowise responsible to Lessee for any loss of property from
the leased premises, however occurring, or for any damage done to the effects of
Lessee by the Janitorial Service or any of Lessor's employees, or by any other
person. Janitorial service will not include the cleaning of carpets and rugs,
other than vacuuming. Lessee shall not cause unnecessary labor by reason of
Lessee's carelessness and indifference in the preservation of good order and
cleanliness.
10. Lessee shall not use, keep or permit to be used any food or noxious gas
or substance in the leased premises, or permit or suffer the leased premises to
be occupied or used in a manner offensive or objectionable to the Lessor or
other occupants of the Building/Office Complex by reason of noise, odors, and/or
vibrations, or interfere in any way with other Lessees or those having business
therein nor shall any animals or birds be brought in or kept in or about the
leased premises or the Building/Office Complex. No Lessee shall make or permit
to be made any unseemly or disturbing noises or disturb or interfere with
occupants of this or neighboring Buildings or leased premises or those having
business with them whether by the use of any musical instruments, radio,
phonograph, unusual noise, or in any other way. No Lessee shall throw anything
out of doors or down the passageways. No trash shall be put in the common areas
before 5:00 p.m.
11. The leased premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the use of
the leased premises for general office purposes. No Lessee shall occupy or
permit any portion of his leased premises to be occupied as an office for the
manufacture or sale of liquor, narcotics, or tobacco in any form, or as a
medical office, or as a xxxxxx shop or manicure shop. The leased premises shall
not be used for lodging or sleeping or for any illegal purposes.
12. Lessee shall not use or keep in the leased premises or the Building/
Office Complex any kerosene, gasoline, or inflammable or combustible fluid or
material.
13. Lessor will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of Lessor. The location of telephones, call boxes
and other office equipment affixed to the leased premises shall be subject to
the approval of Lessor.
11
14. Installation of Floor coverings - No Lessee shall lay linoleum or other
similar floor covering so that the same shall be affixed to the floor of the
leased premises in any manner except by a paste, or other material, which may
easily be removed with water, the use of cement or other similar adhesive
materials being expressly prohibited. The method of affixing any such linoleum
or other similar floor covering to the floor, as well as the method of affixing
carpets or rugs to the leased premises, shall be subject to approval by Lessor.
The expense of repairing any damage resulting from a violation of this rule
shall be borne by Lessee by whom, or by whose agents, employees, or visitors,
the damage shall have been caused.
15. Carpet/Floor Protection - Lessee shall provide and use chair pads and
carpet protectors at all desk and furniture locations.
16. No furniture, packages, supplies, equipment or merchandise will be
received in the Building/Office Complex or carried up or down in the elevators,
except between such hours and in such elevators as shall be designated by
Lessor.
17. On Saturdays, Sundays and legal holidays and on other days between the
hours of 7:00 p.m. and 7:00 a.m. the following day, access to the
Building/Office Complex, or the halls, corridors, elevators or stairways in the
Building/Office Complex, or to the leased premises may be refused unless the
person seeking access is known to the person or employee of the Building/Office
Complex in charge and has a pass or is properly identified. The Lessor shall in
no case be liable for damages for any error with regard to the admission to or
exclusion from the Building/Office Complex of any person. In case of invasion,
mob, riot, public excitement, or other commotion, the Lessor reserves right to
prevent access to the Building/Office Complex during the continuance of the same
by closing the doors or otherwise, for the safety of the Lessees and protection
of property in the Building/Office Complex. The Lessor reserves the right to
close and keep locked all entrance and exit doors of the Building/Office Complex
on Saturdays, Sundays and legal holidays and other days between the hours of
7:00 p.m. and 7:00 a.m., and during such further hours as Lessor may deem
advisable for the adequate protection of said Building/Office Complex and the
property of its Lessees.
18. All entrance doors in the leased premises shall be left locked when the
leased premises are not in use, and all doors opening to public corridors shall
be kept closed except for normal ingress and egress from the leased premises.
19. Lessor reserves the right to exclude or expel from the Building/Office
Complex any person who, in the judgment of Lessor, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of the rules and regulations of the Building/Office Complex.
20. Employees of Lessor shall not perform any work or do anything outside of
their regular duties unless under special instructions from the Lessor, and no
employee will admit any person (Lessee or otherwise) to any office without
specific instructions from the Lessor.
21. No vending machine or machines of any description shall be installed,
maintained or operated upon the leased premises without the prior written
consent of the Lessor.
12
22. Lessor shall have the right, exercisable without notice and without
liability to Lessee, to change the name and the street address of the
Building/Office Complex of which the leased premises are a part.
23. Lessee agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Lessor and Lessee also shall
[illegible] Lessor with the name of a designated responsible employee to
represent Lessee in all matters pertaining to such fire or security regulations.
24. Lessor reserves the right by written notice to Lessee to rescind,
alter or waive any rule or regulation at any time prescribed for the
Building/Office Complex when, in the Lessor's judgment, it is necessary,
desirable or proper for the best interest of the Building/Office Complex and its
Lessees.
25. Lessee shall not disturb, solicit or canvass any occupant of the
Building/Office Complex and shall cooperate to prevent same.
26. Without the prior written consent of Lessor, Lessee shall not use the
name of the Building/Office Complex in connection with or in promoting or
advertising the business of Lessee except as Lessee's address.
27. Lessor shall furnish reasonable amounts of heating and air
conditioning during the hours of 7:00 a.m. to 10:00 p.m., Monday through
Saturday. In the event Lessee requires heating and air conditioning during off
hours, Sundays or holidays, Lessor shall, on notice, provide such services at
the rate of $25 per hour.
28. Energy Conservation Measures -- Lessee shall abide by all energy
conservation measures employed by Lessor, including but not limited to
requirements that lights be extinguished upon leaving the leased premises and
that draperies be closed at times specified by Lessor. Lessee shall not use any
method of heating or air conditioning other than that supplied by Lessor.
29. Equipment Defects -- Lessee shall give Lessor prompt notice of any
accidents to or defects in the water pipes, gas pipes, electric lights and
fixtures, heating apparatus, or any other service equipment.
30. Parking -- Cars are to park in properly marked spaces only. Under no
circumstances are cars to (a) back in, (b) park in spaces reserved for other
Lessees, (c) park in driveways, (d) park in front of entrances to the
Building/Office Complex, (e) park in unmarked areas, (f) park in loading zones,
(g) park in two or more spaces or (h) park in areas reserved for the
handicapped. Lessor shall have the right to cause improperly parked cars to be
towed at the owner's expense.
13
[Diagram of floor plan]
BAYSHORE CORPORATE CENTER
1650 So. Amphlett Blvd.
Suite(s) 100/105
Xxx Xxxxx, XX 00000
1,236 Square Feet
14
#1 AMENDMENT TO LEASE
NAME CHANGE
Regarding the Lease between , GREAT AMERICAN BANK, A Federal Savings
Bank (Lessor), and FULCRUM INNOVATIONS, INC. (Lessee), dated June 12, 1991 for
1650 So. Xxxxxxxx Xxxx., Xxxxx 000, located in San Mateo, California, the
parties now agree that the name of Lessee in this Lease shall be changed to
PERSISTENCE SOFTWARE.
All other sections of this Lease shall remain the same. This NAME CHANGE shall
be effective upon the date of signing.
Dated: 2/25/92 Lessor: GREAT AMERICAN FEDERAL SAVINGS
ASSOCIATION, A Federal Mutual
Savings Association
By: GREAT AMERICAN ASSET
MANAGEMENT COMPANY, Agent
By: /s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx, President
By: /s/ Xxxxx X. Bride
------------------------------------
Xxxxx X. Bride
Senior Vice President
Dated: 2/11/92 Lessee: PERSISTENCE SOFTWARE
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------------
Xxxxxxxxxxx Xxxxx
President
15
[#2 AMENDMENT TO LEASE DOES NOT EXIST]
#3 AMENDMENT TO LEASE
RENEWAL
AMENDMENT, made this 23rd day of June by and between E.C. Properties, A
California General Partnership, having an office at 0000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, party of the first part,
hereinafter referred to as "Lessor", and Persistence Software, having an office
at 0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, party
of the second part, hereinafter referred to as "Lessee".
WITNESSETH
WHEREAS, Great American Bank and Persistence Software entered into a Lease dated
June 12, 1991, covering Suite 100 in the building known as 0000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 at the rental and upon the terms and
conditions there more particularly set forth; and
WHEREAS, E.C. Properties, A California General Partnership, has assumed
ownership of Bayshore Corporate Center, and;
WHEREAS, Lessor and Lessee are desirous of amending said Lease (and said
Amendment(s)) in the matter set forth below.
RENTAL PREMISES: Lessor and Lessee mutually agree to renew said above-mentioned
Lease, plus an expansion of approximately 508 rentable sq. ft., its
configuration as indicated by "Exhibit A" to this Amendment. The lease term for
the expansion space shall not be for less than nine months.
RENTAL RATE & TERM: The term for the above-mentioned space shall be from
September 1, 1992, until July 31, 1993. Base rent shall be $2,180.00 per month
and will be due the first of the month.
TENANT IMPROVEMENTS: An opening will be created into the adjacent space, the
adjacent space will be reconfigured to suit (see attached) and electrical to
suit.
EXPANSION CLAUSE: Upon not less than 60 days prior written notice by Lessee,
Lessor to provide Lessee additional expansion space in the complex. If Lessor is
unable to provide sufficient expansion space, Lessee can vacate the premises
upon not less than 60 days prior written notice.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 12, 1991 and subsequent Amendments shall remain in full force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: 8/10/92 LESSOR: E.C. PROPERTIES
A California General Partnership
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Dated: 8/12/92 LESSEE: Persistence Software
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------------
Xxxxxxxxxxx Xxxxx
16
EXHIBIT A
[FLOORPLAN OF RENTAL PREMISES]
17
#4 AMENDMENT TO LEASE
RELOCATION AND RENEWAL
AMENDMENT, made this 27th day of July, 1993, between E.C. Properties, A
California General Partnership, having an office at 0000 Xxxxx Xxxxxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, "Lessor", and PERSISTENCE SOFTWARE,
having an office at 0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, "Lessee".
WHEREAS, Great American Bank and Persistence Software, entered into a Lease
dated June 12, 1991, covering Suite 100 in the building 0000 Xxxxx Xxxxxxxx
Xxxx., Xxx Xxxxx, Xxxxxxxxxx 00000, at the rental and upon the terms and
conditions there more particularly set forth; and
WHEREAS, E.C. Properties, A California General Partnership, has assumed
ownership of Bayshore Corporate Center, and
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner
set forth below.
RENTAL PREMISES: Lessor and Lessee mutually agree to renew said above-mentioned
Lease, its configuration as indicated by "Exhibit A" to this Amendment.
RELOCATION: Persistence Software will relocate from 0000 Xx. Xxxxxxxx Xxxx.,
Xxxxx #000 to 0000 Xx. Xxxxxxxx, Xxxxx #000.
RELOCATION COSTS: Lessor to pay for new stationery, movers, and relocation of
phones.
RENTAL RATE & TERM: The term for the above-mentioned space shall be from August
7, 1993, until August 6, 1996. Base rent shall be $1.25 a square foot, per
month, full service, for 3,072 square feet, or $3,840.00 and will be due the
first of the month.
Lessee will initially occupy 2,000 square feet at $1.25 a square foot. The
balance of 1,072 square feet will be paid for when occupied by Lessee.
OPERATING COSTS AND TAXES: Waived.
CPI: Annual CPI increases not to exceed 4%.
TENANT IMPROVEMENTS: Per the attached floor plan, including new carpet and
paint, and a kitchen with a sink and cabinets above.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 12, 1991, and subsequent Amendments shall remain in full force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: 7/27/93 Lessor: E.C. Properties, A California
General Partnership
By: /s/Xxxxx Xxxxxxx
_________________________________
Xxxxx Xxxxxxx
Dated: 7/28/93 Lessee: PERSISTENCE SOFTWARE
By: /s/Xxxxxxxxxxx Xxxxx
_________________________________
Exhibit "A" Attached
18
EXHIBIT A
BAYSHORE CORPORATE CENTER
0000 X. Xxxxxxxx Xxxx Xxxxx 000, XXX XXXXX
{FLOOR PLAN OF RENTAL PREMISE]
Rentable Space 3072 SQ. FT.
19
#5 AMENDMENT TO LEASE
EXPANSION
AMENDMENT, made this 27TH day of APRIL, 1994, between E. C. Properties, A
California General Partnership, having an office at 0000 Xxxxx Xxxxxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, "Lessor", and PERSISTENCE SOFTWARE,
having an office at 0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, "Lessee".
WHEREAS, GREAT AMERICAN BANK and PERSISTENCE SOFTWARE, entered into a Lease
dated June 12, 1991, covering Suite 100 in the building 0000 Xxxxx Xxxxxxxx
Xxxx., Xxx Xxxxx, Xxxxxxxxxx 00000, at the rental and upon and terms and
conditions there more particularly set forth; and
WHEREAS, E. C. Properties, A California General Partnership, has assumed
ownership of Bayshore Corporate Center, and
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner
set forth below.
RENTAL RATE & TERM: The term is from May 1, 1994, to August 6, 1996. The total
leased square footage increases 1,072 square feet, from 2,000 square feet, to
3,072 square feet, at $1.25 a square foot, per month, full service, for a total
rent of $3,840.00 per month, full service, which will be due the first of the
month.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 12, 1991, and subsequent Amendments shall remain in full force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: 5/2/94 Lessor: E.C. Properties, A California
----------- General Partnership
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx
Dated: 5/2/94 Lessee: PERSISTENCE SOFTWARE
-----------
By: /s/ Xxxxxxxxxxx Xxxxx
-----------------------------
Exhibit A Attached
20
EXHIBIT A
------------------------------------------------------------------------------
BAYSHORE CORPORATE CENTER
0000 X. Xxxxxxxx Xxxx Xxxxx #000, Xxx Xxxxx
------------------------------------------------------------------------------
[FLOOR PLAN OF RENTAL PREMISES]
21
#6 AMENDMENT TO LEASE
RENEWAL & EXPANSION
AMENDMENT, made this 18th day of JANUARY, 1995, between E. C. Properties, A
California General Partnership, having an office at 0000 Xxxxx Xxxxxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, "Lessor", and PERSISTENCE SOFTWARE,
having an office at 0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, "Lessee".
WHEREAS, GREAT AMERICAN BANK, and PERSISTENCE SOFTWARE, entered into a Lease
dated June 12, 1991, covering Suite 100 in the building 0000 Xxxxx Xxxxxxxx
Xxxx., Xxx Xxxxx, Xxxxxxxxxx 00000, at the rental and upon the terms and
conditions there more particularly set forth; and
WHEREAS, E. C. Properties, A California General Partnership, has assumed
ownership of Bayshore Corporate Center, and
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner
set forth below.
RENTAL PREMISES: Lessor and Lessee mutually agree to renew said
above-mentioned Lease, its configuration as indicated by "Exhibit A" to this
Amendment.
RENTAL RATE & TERM: The term for the above-mentioned space shall be from
February 1, 1995, until August 6, 1997.
Square footage is increasing from 3,072 square feet to 4,056 square feet.
Base rent shall be $1.27 a square foot, per month, full service, for 4,056
square feet, or $5,151.12 per month, and will be due the first of the month.
CONSUMER PRICE INDEX: There will be an annual consumer price index increase,
not to exceed 4%. The next increase will be in August, 1995.
TENANT IMPROVEMENTS: Lessor, at his sole cost and expense, will construct the
improvements as marked on the attached plan. Lessor shall expand the storage
and conference room in the existing premises at a date to be determined by
Persistence Software, per attached Exhibit "A".
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 12, 1991, and subsequent Amendments shall remain in full
force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: 1/18/95 Lessor: E.C. Properties, A California
-------- General Partnership
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Dated: 1/18/95 Lessee: PERSISTENCE SOFTWARE
-------- ------------------------------
Xxxxxxxxxxx Xxxxx
22
#7 AMENDMENT TO LEASE
EXPANSION
AMENDMENT, made this 27th day of July, 1995, between E.C. PROPERTIES, A
California General Partnership, having an office at 1720 So. Xxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000, "Lessor", and PERSISTENCE SOFTWARE,
having an office at 1700 So. Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx,
00000, "Lessee."
WHEREAS, E.C. PROPERTIES, and PERSISTENCE SOFTWARE, entered into a Lease dated
June 21, 1991, covering Suite 250 in the building 0000 Xxxxx Xxxxxxxx Xxxx., Xxx
Xxxxx, Xxxxxxxxxx, 00000, at the rental and upon the terms and conditions there
more particularly set forth; and
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner set
forth below.
WHEREAS, BAYSHORE CORPORATE CENTER, LLC, has assumed ownership of Bayshore
Corporate Center.
EXPANSION: Lessee to occupy an additional 1,427 square feet upon completion of
tenant improvements. This will increase the Lessee's square footage from 4,056
square feet to 5,483 square feet. This additional square footage will be from
suite #220.
RENTAL RATE & TERM: The term for the above-mentioned space shall be from
September 1, 1995, until August 31, 1997. Base rent shall be $1.30 per square
foot, full service, per month for 5,483 square feet, for a total monthly rent of
$7,127.90 and will be due on the first of the month.
RENT ADJUSTMENT, CONSUMER PRICE INDEX: There will be an annual rental increase
based on the previous twelve (12) months increase in the Bay Area Consumer Price
Index, capped at 4%.
TENANT IMPROVEMENTS: Cost of expansion shall be paid by Lessee. Lessee shall
have the option to amortize the costs into the term of the lease with a 10%
amortization charge.
EARLY OCCUPANCY: Lessee may occupy suite upon completion of tenant improvements.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 21, 1991 and subsequent Amendments shall remain in full force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: 8/7/95 LESSOR: E.C. PROPERTIES, A California General Partnership
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxxx
Dated: 8/7/95 Lessee: PERSISTENCE SOFTWARE
By: /s/ Xxxxxxxxxxx Xxxxx
--------------------------------
Xxxxxxxxxxx Xxxxx
Print signers name
23
#8 AMENDMENT TO LEASE
AMORTIZED TENANT IMPROVEMENTS
AMENDMENT, made this 6th day of November, 1995, between E.C. PROPERTIES, A
California General Partnership, having an office at 1720 So. Xxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000, "Lessor", and PERSISTENCE SOFTWARE,
having an office at 1700 So. Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx,
00000, "Lessee."
WHEREAS, E.C. PROPERTIES, and PERSISTENCE SOFTWARE, entered into a Lease dated
June 21, 1991, covering Suite 250 in the building 0000 Xxxxx Xxxxxxxx Xxxx., Xxx
Xxxxx, Xxxxxxxxxx, 00000, at the rental and upon the terms and conditions there
more particularly set forth; and
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner set
forth below.
WHEREAS, BAYSHORE CORPORATE CENTER, LLC, has assumed ownership of Bayshore
Corporate Center.
AMORTIZED TENANT IMPROVEMENTS: The Tenant Improvements marked on Exhibit "B"
(Invoice dated 10-31-95) will be amortized over the term of the Lease starting
on December 1, 1995 and continuing on a monthly basis until August 31, 1997 for
a total of 21 payments. The cost is $4,456.20 which will increase the monthly
rent by $232.19 per month based on 21 months.
BASE RENT $7,127.90 PER MONTH + TENANT IMPROVEMENTS $232.19 PER MONTH =
$7,360.09 TOTAL MONTHLY RENT.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 21, 1991 and subsequent Amendments shall remain in full force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: -------- Lessor: E.C. PROPERTIES, A California General Partnership
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------------
Xxxxx Xxxxxxx
Dated: 11/14/95 Lessee: PERSISTENCE SOFTWARE
By: /s/ Xxxxxxxxxxx Xxxxx
-------------------------------------------------------
Xxxxxxxxxxx Xxxxx
Print signers name
24
#9 AMENDMENT TO LEASE
RENEWAL AND EXPANSION
AMENDMENT, made this 13th day of March, 1996, between E.C. PROPERTIES, A
California General Partnership, having an office at 1720 So. Xxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000, "Lessor", and Persistence Software,
having an office at 1700 So. Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx,
00000, "Lessee."
WHEREAS, BAYSHORE CORPORATE CENTER, and PERSISTENCE SOFTWARE, entered into a
Lease dated June 21, 1991 covering Suite 250 in the building 0000 Xxxxx Xxxxxxxx
Xxxx., Xxx Xxxxx, Xxxxxxxxxx, 00000, at the rental and upon the terms and
conditions there more particularly set forth; and
WHEREAS E.C. PROPERTIES IS NOW BAYSHORE CORPORATE CENTER, LLC
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner set
forth below.
RENTAL, RATE AND TERM: The term for the above mentioned space shall be from
April 1, 1996 to August 31, 1997. Current base rent shall be $1.30 per square
foot, full service, per month for 5,483 square feet for a monthly rent of
$7,127.90 plus $232.19 in Tenant Improvements for a total of $7,360.90 and will
be due on the first of the month.
RENTAL INCREASE: For the additional new space the base rent shall be $1.40 per
square foot, full service, per month for 3,294 square feet for a monthly rent of
$4,611.60. The total base rent for both spaces is $11,971.69 and will be due on
the first of the month.
CONSUMER PRICE INDEX INCREASE: There will be an annual rental increase based on
the previous twelve (12) months increase in the Bay Area Consumer Price Index,
capped at 4%.
TENANT IMPROVEMENTS: Lessor pays: will steam clean the carpets and paint
touch-up.
TENANT IMPROVEMENTS: Lessee pays: costs associated with joining Xxxxx 000 xxx
Xxxxx 000: demolishing one wall, repairing carpet, and adjoining walls and
ceiling.
Tenant shall have the option to amortize costs into the term of the lease with a
12% amortization charge.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 21, 1991 and subsequent Amendments shall remain in full force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: -------- Lessor: BAYSHORE CORPORATE CENTER, LLC
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
Dated: 7/16/96 Lessee: /s/ Xxxxxxxxxxx Xxxxx
-------------------------------
By: Xxxxxxxxxxx Xxxxx
-----------------------------------
25
#10 Amendment to Lease
Relocation and Expansion
AMENDMENT, made this 26th day of May, 1996, between E.C. PROPERTIES, A
California General Partnership, having an office at 1720 So. Xxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000, "Lessor", and PERSISTENCE SOFTWARE,
having an office at 1700 So. Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx,
00000, "Lessee."
WHEREAS, BAYSHORE CORPORATE CENTER, and PERSISTENCE SOFTWARE, entered into a
Lease dated June 21, 1991 covering Suite 250 in the building 0000 Xxxxx
Xxxxxxxx Xxxx., Xxx Xxxxx, Xxxxxxxxxx, 00000, at the rental and upon the terms
and conditions there more particularly set forth; and
WHEREAS E.C. PROPERTIES IS NOW BAYSHORE CORPORATE CENTER, LLC
WHEREAS, Lessor and Lessee are desirous of amending said Lease in the manner
set forth below.
RELOCATION: Lessee will relocate from 0000 X. Xxxxxxxx Xxxx., Xxxxx 000 to 0000
X. Xxxxxxxx Xxxx., Xxxxx 000.
TERM: The term for the above mentioned space shall be from July 1, 1996 to June
30, 1999.
SQUARE FOOTAGE: 0000 X. Xxxxxxxx Xxxx., Xxxxx 000 consists of 17,181 square
feet. Lessee to initially occupy square feet. Lessee to pay for
additional square footage as occupied.
RENTAL RATE: From July 1, 1996 to June 30, 1997 the rent will be $1.45 per
square foot, full service, per month.
From July 1, 1997 to June 30, 1998 the rent will be $1.52 per square foot, full
service, per month.
From July 1, 1998 to June 30, 1999 the rent will be $1.60 per square foot, full
service, per month.
STOCK: Persistence Software agrees to exchange for rent 110,000 shares of stock
at $2.30 per share. Rent will be abated from the first month of occupancy until
such time as the stock purchase is complete.
TENANT IMPROVEMENTS: As per the attached floor plan, Lessor pays: For buildout
including glass for offices, parabolic lights, three sinks and new ceiling
tiles. Lessee pays: Upgrades at lobby area and relocation of Vanguard. Vanguard
relocation costs will be capped at $4,000.00 and will only be amortized into
the rent after the Vanguard space is fully occupied. Lessee's tenant
improvement costs are to be paid after work is completed or can be amortized
over the term of the lease at a rate of 10% per annum. Lessor pays: Upgrade
restrooms, hallway carpet and hallway wallpaper.
GENERAL TERMS: All other terms, covenants, provisions, and agreements of said
Lease dated June 21, 1991 and subsequent Amendments shall remain in full
force.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto.
Dated: 5/23/96 Lessor: BAYSHORE CORPORATE CENTER, LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Dated: 6/14/96 Lessee: PERSISTENCE SOFTWARE
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------
Xxxxxxxxxxx Xxxxx
Exhibit "A" Attached
