Exhibit 10.6
LEASE
This Lease is made as of the date December 6, 1999 between Xxxxxxx X.
Xxxx designated as LESSOR and Embarcadero Technologies, Inc. designated as
LESSEE.
LESSOR lets to LESSEE and LESSEE hires from LESSOR the following
premises, and each promises:
1. PRINCIPAL PREMISES: The premises that are the subject of this Lease are
located in the City of Xxxxxxx Xxxxx, Xxxxxx xx Xxxxxxxx, Xxxxx xx
Xxxxxxxxxx, described as: 000 00xx Xxxxxx Xxxxxx 000 and 202.
2. SERVICES: LESSEE shall be responsible for the payment of all utility
services used by them at the leased premises. LESSEE shall, at its sole
expense, contract for and maintain regular garbage, trash and refuse
collection.
3. PREMISES: Any interior or exterior remodeling shall be paid for by LESSEE.
All fixtures necessary for LESSEE'S business shall be furnished by LESSEE at
LESSEE'S expense.
LESSEE shall present complete plans and specifications to LESSOR prior
to commencement of any alteration, construction or demolition. LESSOR'S consent
in writing shall be required before any LESSEE may make any alterations,
modification or repairs, in addition to any required consent of the City of
Pacific Grove, or any other governmental agency.
LESSEE shall advise LESSOR in writing ten (10) days prior to
commencement of any work on the demised premises so that LESSOR may post and
record a timely notice of nonresponsibility.
4. TERM:
A. BASIC TERM: The terms shall be for four (4) years, beginning and
ending as follows:
B. TERMINATION AND SURRENDER: At the termination of this Lease, LESSEE
shall surrender to LESSOR the premises and fixtures and equipment which LESSEE
is required or entitled to remodel by reason of express provisions to the Lease,
in good and broom-clean condition, except for reasonable wear and tear and
damage that LESSEE is not obligated to repair, if any, by reason of express
provisions in the Lease. All property that LESSEE is required to surrender, and
all property that LESSEE does surrender or abandon, at the termination of this
Lease, shall, at LESSOR'S election, then become the property of LESSOR.
Voluntary or other surrender of this Lease by LESSEE, or a mutual
cancellation, shall not work a merger and shall, at LESSOR'S option, either
terminate all or any existing subtenancies, and the subleases representing them.
Trade fixtures and trade equipment installed on the premises before or
during the Lease term at LESSEE'S expense shall not be deemed part of the
premises unless otherwise expressed in this Lease, and LESSEE, if not in
default, may remove them at their own expense at or before the termination of
this Lease. If LESSOR shall so request LESSEE shall, at the termination of the
Lease, remove any such trade fixtures and trade equipment specified by LESSOR,
at LESSEE'S expense, whether LESSEE is in default or not. LESSEE shall repair
all damage to the premises resulting from or caused by the removal of trade
fixtures and trade equipment or other property of
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LESSEE. LESSOR may elect to repair the injury or damage, and LESSEE shall, on
demand, pay to LESSOR the cost of those repairs.
LESSEE may elect to retain any trade fixtures and trade equipment that
LESSEE does not remove or may remove then and either store or dispose of them in
any manner. Title to any property that LESSOR elects to retain shall vest in
LESSOR at the time of the election to retain it. LESSEE shall on demand, pay to
LESSOR the expense of removing, storing and disposing of the property LESSOR
elects to treat in such manner. LESSOR may exercise a separate option to retain,
store, or dispose of each such item or all items, or groups of items, and the
election made for any one item or group of items may differ from that made for
other items or groups of items.
If LESSEE fails to surrender the premises on the termination of the
Lease, LESSEE shall defend and indemnify LESSOR from all liability and expense
resulting from failure of LESSEE to surrender, including, without limiting the
generality of the above, claims made by any succeeding LESSEE founded on or
resulting from LESSEE'S failure to surrender.
C. HOLDING OVER: If LESSEE holds the premises after expiration of the
term with LESSOR'S consent, express or implied, the holding shall, in the
absence of contrary written agreement, be deemed to be at tenancy from
month-to-month at a monthly rental, payable in advance, equal to one-twelfth
(1/12th) of the aggregate rental, and all adjustments required by the Lease,
payable during the last year of the term (unless during the last year there was
a reduction of rent because of damage to or destruction of the premises, in
which event the fraction shall be applied to the twelve (12) months next
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preceding the damage or destruction). All provisions of this Lease, except those
pertaining to rent, terms and option, if any, shall apply to the month-to-month
tenancy.
5. RENT:
A. LESSEE shall pay to LESSOR as minimum monthly rent without
deduction, setoff, prior notice, or demand, the sum of $1,025 per month, which
sum is subject to possible adjustment as provided hereafter in this Paragraph.
Beginning December 6, 1999, there is a charge of 6% of rent for a late charge
paid after the 11th day.
B. That in addition to the rental above-mentioned, LESSEE shall pay
increase in taxes incurred for any reason, during the period of this Lease,
i.e., increase over and above the property taxes for the fiscal year July 1,
1998 to June 30, 1999 ($ ), on a pro rata basis for the entire tax parcel
predicated upon the ratio of square footage of lease space in the demised
premises to all lease space in the entire tax parcel. LESSEE shall pay during
the period of this Lease any additional amount over and above such basis upon
statement, in writing, before ten (10) days before the December and April
installments of such excess, if any, presented by LESSOR to LESSEE.
6. USE OF PREMISES:
A. WARRANTY AS TO USE: LESSOR makes no warranty or representation
concerning zoning or uses permissible on the property.
B. PERMITTED USES: LESSEE shall use the premises only for offices and
for no other purposes without prior written consent of the LESSOR.
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C. LIMITATIONS ON USE: LESSEE'S use of the premises shall be subject to
the following specific limitations, without limiting the generality of the
above:
(1) INSURANCE RATE: LESSEE shall refrain from doing and shall not
permit to be done, anything in or about the premises, and shall not bring or
keep anything on the premises that will increase the rate of any insurance
covering injuries to person or damage to property.
(2) COMPLIANCE WITH LAW: LESSEE shall at all times conduct his
business on the premises in a lawful manner, and at his own expense, comply with
all governmental laws, rules, regulations, and orders applicable to the conduct
of LESSEE'S business on the premises. Any structural changes, alterations or
additions made necessary or required by reason of any law, rules, regulations,
or order promulgated by competent government authority required solely by reason
of change in LESSEE'S use of premises shall be made and paid for by LESSEE.
(3) WASTE AND NUISANCE: LESSEE shall not use or permit to be used
any part of the premises in a manner that will constitute waste, a nuisance, or
an unreasonable annoyance to the public or to owners or occupants of neighboring
properties.
(4) UTILITIES: LESSEE shall be responsible for all electricity
and gas during said term plus any increases during the term of the lease.
(5) SIGNS: LESSEE shall not place or maintain or permit the
placing or maintenance of any sign or other object on the exterior walls or the
roof or on the exterior or interior of windows, except as otherwise expressly
permitted by the City
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of Pacific Grove and LESSOR. Any signs permitted shall be kept in first-class
condition at all times. The design and color of any sign shall be approved by
the LESSOR before it is installed; and the LESSOR agrees that such approval
will not be unreasonably withheld.
(6) EXTERIOR: LESSEE shall not change or permit the changing of
the exterior of the building forming part of its premises, whether in structure,
color or otherwise, without limitation, except as permitted in this lease.
(7) LIGHTING: LESSEE shall keep all signs and lighting fixtures
fully lighted and in operation during normal business hours and promptly replace
or repair all defective tubes, bulbs, and other light sources, whether interior
or exterior.
(8) THROWING DEBRIS: LESSEE shall not throw or place anything out
of the windows or doors or in any of the common areas.
D. MAINTENANCE, REPAIRS, ALTERATIONS:
(1) LESSOR agrees to keep in good order, condition and repair the
foundations, exterior walls, downspout gutters and roof of the building, but
excluding the exterior and interior of all windows, doors, plate glass and
showcases; provided, however, that the LESSOR shall not be obligated to repair
any damage thereto caused by any act or negligence of LESSEE or its employees,
agents, invitees, licensees, or contractors. LESSOR shall not be obligated to
make any such repairs until after the expiration of ten (10) days written notice
from LESSEE to LESSOR, stating the need for such repairs or maintenance.
(2) LESSEE'S DUTY:
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LESSEE shall keep in good condition:
(a) The external appearance of exterior walls and
roof, including glass and glazed areas.
(b) The efficient working condition of all
portions of the electrical, plumbing and sewage systems that are located on the
leased premises and those lying outside the meter, main connection, and the
outfall main, respectively.
(c) LESSEE shall keep in good and commercially
attractive condition all portions of the premises and shall repair all damage
resulting from the following:
(i) Use, including willful action (whether
proper or improper) or negligence, by any person suffered to be on the premises
by LESSEE, except LESSOR; or
(ii) LESSEE'S failure to observe or perform
any conditions or covenants imposed on LESSEE by this Lease;
(iii) Alterations by LESSEE or any person
suffered on premises by LESSEE, except LESSOR;
(iv) LESSEE shall keep all walks, sidewalks,
and landscaped areas adjoining leased area in a clean and proper manner at all
times;
(v) Glass areas shall be cleaned as reasonably
required to keep the premises in first class condition. LESSEE shall, at his
expense, replace all broken or cracked glass and glazing promptly upon the
occurrence of such conditions during the lease;
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(vi) If LESSEE fails to perform any of its
obligations under this subparagraph, LESSOR after notice and demand, may, at
LESSOR'S option and without waiving LESSEE'S default, enter the premises and put
them in proper condition, and the expense shall become additional rent payable
on demand; but this option of LESSOR shall not be deemed a duty on the LESSOR or
a limitation of LESSEE'S obligations;
(3) LESSEE WAIVER: Except as provided above, LESSEE waives the
benefits of Sections 1941 and 1942 of the California Civil Code. It is agreed
that the structure in which the leased premises is situated and no part thereof,
is intended for the occupation of human beings.
(4) EXCULPATION OF LESSOR: LESSOR shall not be responsible for
any latent defects, deterioration, or change in the condition of the premises,
or for any damage to LESSEE'S property, or to that portion of the premises that
LESSEE is obligated to keep in good conditions, except for damage proximately
resulting from the breach of any obligation expressly imposed on LESSOR by this
Lease.
7. DAMAGE, DESTRUCTION AND INSURANCE:
A. FIXTURES AND PERSONAL PROPERTY: LESSEE shall, at his own expense,
procure and maintain during the term of this Lease, insurance covering LESSEE'S
signs, trade fixtures, furnishings, equipment, and other similar installations
and leasehold improvements originally and subsequently installed in, or placed
on the premises by LESSEE.
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The insurance required by this Paragraph shall provide protection to
the extent of not less than ninety (90%) percent of the replacement cost against
all casualties included in the classification "fire and extended coverage" under
standard industry practices in California.
B. PLATE GLASS:
LESSEE shall at his own expense, procure and maintain, during the life
of this Lease, insurance covering all plate glass and other glazing forming part
of the premises leased, naming the LESSOR as an additional insured.
C. DESTRUCTION OF PREMISES: Should said premises of the building of
which they are a part be damaged or destroyed by any cause not the fault of
LESSEE, LESSOR, at LESSOR'S sole cost and expense shall promptly repair the same
and the rent payable under this Lease shall be abated for the time and to the
extent LESSEE is prevented from occupying said premises in their entirety;
provided however, that should the cost of repairing the damage or destruction
exceed fifty (50%) percent of the full replacement cost of said premises or the
building of which said premises are a part, LESSOR may, in lieu of making
repairs required by this Paragraph, terminate this LEASE by giving LESSEE thirty
(30) days written notice of such termination
D. DAMAGE TO FIXTURES: In the event of damage to or destruction of
exterior or interior signs, trade fixtures, equipment, and other installations
and leasehold improvements originally or subsequently installed by LESSEE,
LESSEE shall proceed with reasonable diligence to restore them substantially to
the condition they were in immediately before the damage or destruction;
provided that this restoration need not be
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made if the Lease is to be terminated under the above provisions relating to
damage to or destruction of the premises.
E. REPAIRS; USE OF INSURANCE PROCEEDS:
(1) Unless the parties to this Lease can and do agree forthwith
upon the extent and amount of such damage or destruction, LESSOR promptly shall
designate a certified architect, registered engineer, or licensed building
contractor who shall determine such matters, and the determination of such
architect, engineer, or contractor shall be final and binding upon the parties
to this Lease.
(2) In the event neither party elects to terminate this Lease,
LESSOR shall, to the extent of available insurance proceeds, repair or rebuild
such building and improvements to substantially the same condition that they
were in immediately preceding such damage or destruction.
(3) LESSEE agrees to continue the operation of his business in
the premises to the extent reasonably practicable from the standpoint of good
business during any period of reconstruction or repair.
8. PUBLIC LIABILITY, INDEMNITY AND INSURANCE:
A. INDEMNIFICATION: LESSEE shall defend and indemnify LESSOR against
all loss, expense, and liability and against all claims and demands arising
or asserted to have arisen during the life of this Lease by reason of any
injury to person or damage to property. Without limiting the generality of
the above, this covenant shall apply to injury to person or property of
LESSEE and LESSEE'S officers, directors, employees, agents, subtenants,
concessionaires, licensees, and invitees while they are in,
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on, or in any way connected with the premises or with LESSEE'S business
conducted on or from the premises. LESSEE waives all rights of subrogation it
may have against LESSOR as a result of any happening covered by this
Paragraph. This covenant shall not, however, apply to damage or injury
occasioned by LESSOR'S wrongful acts while in or on the premises.
B. PUBLIC LIABILITY INSURANCE: LESSEE shall, at LESSEE'S own expense,
procure and maintain, during the life of this Lease, comprehensive public
liability insurance with limits of not less than $500,000.00 for any one person
injured or killed and $1,000,000.00 for personal injuries to more than one
person in one accident, and $50,000.00 for property damage.
Before the commencement of the term, a correct copy of all policies, or
a certificate of insurance in the case of a blanket coverage, shall be delivered
to LESSOR with evidence satisfactory to LESSOR that the premiums have been paid.
Not less than ten (10) days before the expiration of any policy, similar
evidence of renewal and payment shall be delivered to LESSOR.
C. POLICY FORM: All policies of insurance provided in Paragraph 8
shall:
(1) Be written by companies authorized to do business in the
State of California and rated "B" or better, in the General Policy Holders
Rating of Best's Insurance Reports;
(2) Be written as primary policies and not contributing with or
in excess of any coverage that LESSOR may carry;
(3) Cover and insure LESSOR as an additional insured;
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(4) Contain an endorsement requiring ten (10) days written notice
to LESSOR before cancellation or change in the coverage, scope or amount of such
policy or policies;
(5) Waive all rights of subrogation that the insurer or insurers
might otherwise have, if any, against LESSOR.
9. PERSONAL PROPERTY TAXES: LESSEE shall defend and indemnify LESSOR against
liability for and shall protect the premises from liens by reason of taxes and
assessments on leasehold improvements, personal property of LESSEE, and trade
fixtures on or about the premises, whether they be assessed as real or personal
property. In case no separate assessment is available for such items, the
liability of the respective parties shall be determined by arbitration.
10. LESSOR'S RIGHT OF ENTRY: LESSOR and his authorized representatives shall
have the right to enter the premises at all reasonable times:
A. To discover the safety and good repair of the premises and LESSEE'S
compliance with his obligations;
B. To make repairs that LESSOR has the right or obligation to perform;
C. To do any act or thing necessary for the safety or preservation of
the premises; and
D. To protect or preserve the life or property of any person.
11. ASSIGNMENT AND SUBLETTING:
A. LESSEE: LESSEE shall not assign, sublet, encumber, hypothecate or
alienate this Lease or any interest thereof without the prior written permission
of the
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LESSOR. This prohibition includes both voluntary assignments or transfers and
involuntary assignments or transfers or those which may occur by operation of
law. Consent by LESSOR to one assignment or subletting shall not be deemed to
be a consent to any subsequent assignment, subletting or occupation.
12. NOTICES: Any notice (which word as used in this Lease, includes notice,
request, demand, approval, statement, report, acceptance, consent, and waiver),
or other instrument shall be deemed sufficiently given or served only if in
writing and if and when delivered or tendered either in person or by depositing
it in the United States mail in a sealed envelope, registered or certified, with
postage and postal charges prepaid, addressed to the party or person to be
served. Notice shall be addressed as follows:
TO LESSOR: XXXXXXX X. XXXX
000 Xxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
TO LESSEE: Xxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxx.
Xxxxxxx Xxxxx, XX 00000
13. DEFAULTS AND REMEDIES:
A. LESSOR'S REMEDIES: In addition to all other rights and remedies
provided by law or equity, LESSOR has the following remedies:
(1) Continue this Lease in effect by not terminating LESSEE'S
right to possession of said premises and thereby be entitled to enforce all
LESSOR'S rights and remedies under this Lease including the right to recover the
rent specified in this Lease as it becomes due under this Lease; or
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(2) Terminate LESSEE'S right to possession of said premises,
thereby terminating this Lease, and recover from LESSEE:
(a) The worth at the time of award or the unpaid rent which
had been earned at the time of termination of the Lease;
(b) The worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination of the Lease
until the time of award exceeds the amount of rental loss that LESSEE proves
could have been reasonably avoided;
(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 exceeds
the amount of rental loss that LESSEE proves could be reasonably avoided; and
(d) Any other amount necessary to compensate LESSOR for all
detriment proximately caused by LESSEE'S failure to perform LESSEE'S obligations
under this Lease; or
(3) In lieu of, or in addition to, bringing an action for any or
all of the recoveries described in subparagraph (2) of this Paragraph, bring an
action to recover and regain possession of said premises in the manner provided
by the laws of unlawful detainer of the State of California then in effect.
B. INTEREST ON PAST DUE OBLIGATIONS: All sums in default, as that
term is defined in this Lease, shall bear interest at a rate of ten (10%)
percent from the due date until paid. All payments shall be applied first to
interest and then to principal; provided
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that this provision shall be without prejudice to provisions elsewhere in
this Lease referring to costs and expenses.
C. ATTORNEYS' FEES: If LESSOR or LESSEE brings suit, or institutes
arbitration proceedings, arising out of or based on a provision in this Lease,
the losing party shall pay to the prevailing party all costs and reasonable
attorneys' fees which shall be fixed by the court or tribunal.
D. WAIVER, VOLUNTARY ACTS: A waiver of any breach or default shall not
be a waiver of any other breach or default. No waiver, benefit privilege, or
service voluntarily granted or performed by either party shall give the other
any contractual right by custom, estoppel or otherwise.
E. APPLICATION OF PAYMENTS: Notwithstanding any contrary endorsement of
statement on or accompanying any payment after default, any payment shall be
deemed applied first to late payment charges then to the expenses of the LESSOR
resulting from the default or incurred to pursue this remedy; then to interest
and then to the earliest unpaid amount of any rent or obligation under this
Lease and acceptance of any payment shall not be deemed an accord and
satisfaction. The party entitled to payment may accept any payment without
prejudice to his right to recover the balance due or to pursue other remedies,
and without being bound by the endorsement or statement on or accompanying the
payment.
14. MISCELLANEOUS PROVISIONS:
A. ENTIRE AGREEMENT: This Lease contains the entire agreement between
the parties. No promises, representation, or warranty not included in this Lease
has been
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relied on by the party to whom made. Each party has relied on his own
examination of this Lease and on the advice of his own counsel and other
agents; to the extent that either party had not inspected or had counsel or
advice, he has waived it and the consequences of that lack.
B. AMENDMENT, NOTIFICATION: This Lease may be modified only in a
writing executed by both parties.
C. INTERPRETATION OF LEASE:
(1) CAPTIONS: Captions and organizations are for convenience and
shall not be used in construing meaning.
(2) PARTICULAR WORDS: The word "person" includes individuals,
corporations, trusts, partnerships, joint ventures, and unincorporated
associations. The words "mortgage" and "Encumbrances" include mortgages,
Deeds of Trust, security agreements, and all liens recognized by law,
provided that they are of record at the time they become material to this
Lease.
(3) CONDITIONAL LIMITATIONS: Each obligation imposed on LESSEE is
both a covenant and a condition.
(4) SEPARABILITY: The invalidity or illegality of any provision
shall not affect the remainder of the Lease.
(5) EXHIBITS: All exhibits to which reference is made are deemed
incorporated in the Lease, whether or not actually attached.
D. NEGATION OF PARTNERSHIP: The parties shall not, by reason of any
provision of this Lease, be deemed to be partners or co-venturers.
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E. SUCCESSORS: Subject to the Paragraph on assignment, the provisions
of this Lease shall be binding on and inure to the benefit of the heirs,
successors, executors, administrators, assigns, and personal representatives of
the respective parties.
F. GOVERNMENT ORDERS: LESSOR may comply voluntarily or under
compulsion, with any order or recommendation of any governmental or civilian
agency or organization relating to security, public welfare, or defense from
enemy attack or civilian commotion, and LESSEE will, on LESSOR'S notice and at
LESSEE'S expense, comply with the provisions of the order or recommendation that
affect the leasehold. Provisions of the Paragraph on Damage or Destruction which
relate to abatement or rent shall apply to this subparagraph.
15. ARBITRATION: LESSOR and LESSEE agree that in the event of
arbitration, of any Matter agreed to be arbitrated under this Lease, such
arbitration shall be submitted to the arbitration of two (2) disinterested and
competent persons, (neither of whom may be legal counsel for LESSOR or LESSEE or
a member of the local firm of which such persons is a member) one selected by
LESSOR and one selected by LESSEE, and the two (2) persons so selected shall
select a third (3rd) person whose award shall be conclusive and binding on both
parties. The dispute or controversy shall be judged pursuant to the rules and
procedures used by the American Arbitration Association. The arbitrators shall
have no authority, power, or right to alter, change, amend, modify, add to or
subtract from any of the provisions of this Lease. Any award shall be rendered
in conformity with the rules of the law of the State of California.
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16. OPTION FOR EXTENDED TERM: Should LESSEE fully and faithfully perform all the
terms and conditions of this Lease for the basic term specified in Xxxxxxxxx 0,
XXXXXX may extend this Lease for the period of 3 years commencing upon
expiration of the basic term by giving LESSOR written notice to do so at least
three (3) months prior to the expiration of the basic term. The extended term of
this Lease shall be subject to negotiation between the parties. LESSEE has first
right of refusal.
EXECUTED AT Pacific Grove, California.
DATED: 11/22/99
/s/ Xxxxxxx X. Xxxx
---------------------------------
LESSOR
DATED: 11/22/99
/s/ Xxxxxxx Xxxxxx
---------------------------------
LESSEE
LESSEE agrees to deposit with LESSOR on the execution hereof
the sum of $0.00, to be held by the LESSOR as security for the payment by the
LESSEE of the rents herein reserved, and for the performance by the LESSEE of
all the terms, covenants, and provisions of this Lease on the part of the LESSEE
to be kept and performed, which said sum shall remain as security until the
expiration of the terms of this Lease.
DATED: 11/22/99
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/s/ Xxxxxxx X. Xxxx
---------------------------------
LESSOR
/s/ Xxxxxxx Xxxxxx
-----------------------------------------
LESSEE
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