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Exhibit 10.4
LEASE
THIS LEASE is made on this 27 day of Nov ,1991, by and between VASONA
BUSINESS PARK, a California General Partnership, (hereinafter called "Lessor")
and CAERE CORPORATION, a California Corporation, (hereinafter called "Lessee").
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES
AGREE AS FOLLOWS:
1. Premises. Lessor leases to Lessee and Lessee leases from Lessor,
upon the terms and conditions herein set forth, those certain premises
("Premises") situated in the City of Los Gatos, County of Santa Clara,
California, as outlined in Exhibit "A" attached and described as: Approximately
23,100 square feet of space in that larger 43,230 square foot industrial
building commonly known as 104 Cooper Court.
2. Term. The term of this Lease shall be for five (5) years, commencing
February 1, 1992, and ending on January 31,1997, unless sooner terminated
pursuant to any provisions hereof.
3. Rent. Lessee shall pay to Lessor rent for the Premises of Seventeen
Thousand Three Hundred Twenty-five and no/100ths Dollars ($17,325.00) per month
in lawful money of the United States of America, subject to adjustment or
offset, prior notice or demand, at such place as may be designated from time to
time by Lessor as follows: $17,325.00 shall be paid upon execution of the Lease,
which sum represents the amount of the first month's rent. A deposit of
$17,325.00 as a Security Deposit shall be made by Lessee and held by the Lessor
pursuant to Paragraph 5 of this Lease, and shall also be paid upon execution of
the Lease. If Lessee is not in default of any provisions of this Lease, this
sum, with interest thereon, shall be applied toward the rent due for the last
month of the term of this Lease or the extended term, pursuant to any extension
of the initial term in accordance with the provisions of this Lease. $17,325.00
shall be paid on March 1, 1992, and in advance of the first (1st) day of each
month until January 31, 1994. $18,480.00 shall be paid on February 1, 1994 and
in advance of the first (1st) day of each month until January 31,1995.
$19,635.00 shall be paid on February 1, 1995, and in advance of the first (1st)
day of each month until January 31, 1996. $20,790.00 shall be paid on February
1, 1996, and in advance of the first (1st) day of each month until January 31,
1997.
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Rent for any period during the term hereof which is for less than one (1) full
month shall be a pro-rata portion of the monthly rent payment. Lessee
acknowledges that late payment by Lessee to Lessor of rent or any other payment
due Lessor will cause Lessor to incur costs not contemplated by this Lease, the
exact amount of such costs being extremely difficult and impracticable to fix.
Such costs include, without limitation, processing and accounting charges, and
late charges that may be imposed on Lessor by the terms of any encumbrances and
note secured by any encumbrance covering the Premises. Therefore, if any
installment of rent or other payment due from Lessee is not received by Lessor
within five (5) days following the date it is due and payable, Lessee shall pay
to Lessor an additional sum of five (5%) percent of the overdue amount as a late
charge, except for the first failure to make a payment of rent or other amount
when due in each lease year of the Lease. Further, in only this event, said late
charge will not be imposed until such failure to pay has not occurred within
three (3) business days after Lessor has delivered written notice to Lessee that
such payment is due. The parties agree that this late charge represents a fair
and reasonable estimate of the costs that Lessor will incur by reason of late
payment by Lessee. Acceptance of any late charge shall not constitute a waiver
of Lessee's default with respect to the overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies available to Lessor.
If for any reason whatsoever, Lessor cannot deliver possession of the
Premises on the commencement date set forth in Paragraph 2 above, this Lease
shall not be void or voidable, nor shall Lessor be liable to Lessee for any loss
or damage resulting therefrom; but in such event, Lessee shall not be obligated
to pay rent until possession of the Premises is tendered to Lessee and the
commencement and termination dates of this Lease shall be revised to conform to
the date of Lessor's delivery of possession. In the event that Lessor shall
permit Lessee to occupy the Premises prior to the commencement date of this
term, such occupancy shall be subject to all of the provisions of this Lease,
including the obligation to pay rent at the same monthly rate as that prescribed
for the first month of the Lease term.
B. All taxes, insurance premiums, Outside Area Charges, late charges,
costs and expenses which Lessee is required to pay hereunder, together with all
interest and penalties that may accrue thereon in the event of Lessee's failure
to pay such amounts, and all reasonable damages, costs and attorney's fees and
expenses which Lessor may incur by reason of any default of Lessee or failure on
Lessee's part to comply with the terms of this Lease, shall be deemed to be
additional rent ("Additional Rent") and, in the event of non-payment by Lessee,
Lessor shall have all the rights and remedies with respect thereto as Lessor has
for the non-payment of the monthly installment of rent.
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4. Security Deposit. Lessor acknowledges that Lessee has deposited with
Lessor a Security Deposit in the sum of $17,325.00 to secure the full and
faithful performance by Lessee of each term, covenant, and condition of this
Lease. If Lessee shall at any time fail to make any payment or fail to keep or
perform any term, covenant, or condition on its part to be made or performed or
kept under this Lease, Lessor may, but shall not be obligated to and without
waiving or releasing Lessee from any obligation under this Lease, use, apply,
or retain the whole or any part of said Security Deposit (a) to the extent of
any sum due to Lessor; or (b) to make any required payment on Lessee's behalf;
or (c) to compensate Lessor for any loss, damage, attorneys' fees or expense
sustained by Lessor due to Lessee's default. In such event, Lessee shall within
five (5) days of written demand by Lessor, remit to Lessor sufficient funds to
restore the Security Deposit to its original sum. Should Lessee comply with all
the terms, covenants and conditions of this Lease and at the end of the term of
this Lease leave the Premises in the condition required by this Lease, then
said Security Deposit or any balance thereof, less any sums owing to Lessor,
shall be returned to Lessee within fifteen (15) days after the termination of
this Lease and vacancy of the Premises by Lessee. Lessor can maintain the
Security Deposit separate and apart from Lessor's general funds, or can
commingle the Security Deposit with Lessor's general and other funds. Lessor
agrees to pay Lessee annually interest on the security deposit. The rate of
interest shall be the average monthly rate paid by Cupertino National Bank on
their Money Market Account.
5. Use of the Premises. The Premises shall be used exclusively for the
purpose of administrative offices and manufacturing of electronic products.
Lessee shall not use, or permit the Premises, or any part thereof, to
be used, for any purpose or purposes other than the purpose for which the
Premises are hereby leased; and no use shall be made or permitted to be made of
the Premises, nor acts done, which will increase the existing rate of insurance
upon the building in which the Premises are located, or cause a cancellation of
any insurance policy covering said building, or any part thereof, nor shall
Lessee sell, or permit to be kept, used or sold, in or about the Premises, any
article which may be prohibited by the standard form of fire insurance policies.
Lessee shall not commit, or suffer to be committed, any waste upon the Premises,
or any public or private nuisance, or other act or thing which may disturb the
quiet enjoyment of any other tenant in the building in which the Premises are
located; nor, without limiting the generality of the foregoing, shall Lessee
allow the premises to be used for any improper, unlawful or objectionable
purpose.
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6. Hazardous Materials.
Lessor hereby represents to Lessee that to the best of Lessor's
knowledge, there is no toxic waste, spillage, or other contaminants, including
asbestos, present in or about the Premises or the building thereon as of the
date of execution of this Lease and that no hazardous material has been used on
the Premises except in compliance with law. Lessee shall not place any harmful
liquids in the drainage system of the Premises or of the building of which the
Premises forms a part except in compliance with law. No waste materials or
refuse shall be disposed of or stored upon any part of the Premises outside of
the building proper except in trash containers placed inside exterior enclosures
designated for the purpose by Lessor, or inside the building proper where
designated by Lessor unless such outside storage or disposal is required by law.
No materials, supplies, equipment, finished or semi-finished products, raw
materials or articles of any nature shall be disposed of or stored upon any
portion of the Premises outside of the building unless such outside storage or
disposal is required by law.
Should, at any time during the term of this Lease, or for a period
of five (5) years after termination or expiration of this Lease, there be
charges or findings of toxic waste, spillage, or other contaminants found by a
governmental agency to be hazardous and requiring removal or remedial work of
the same, and it is determined that Lessee is the sole cause, Lessee shall hold
Lessor harmless from all claims, obligations, liabilities and costs, including
reasonable attorney's fees, for the removal, remedial work, or other action
required by the governmental agency so prescribing said action, or any other
agency having jurisdiction. If it is determined that Lessee is only partially
responsible for toxic waste spillage, or other contaminants found by a
governmental agency to be hazardous and requiring removal or remedial work of
the same, then Lessee shall be responsible only for its prorate share and to the
extent of said prorate share, Lessee shall hold Lessor harmless from any claims,
obligations, liabilities and costs, including reasonable attorney's fees, for
the removal, remedial work, or other action required by the governmental agency
so prescribing said action, or any other agency having jurisdiction. If at any
time during the term of this Lease, Lessor suspects that toxic waste, spillage,
or other contaminants may be present on the Premises, Lessor may order a soils
report, or its equivalent. If it is determined that Lessee is the cause of
contamination and that a governmental agency, or any other agency having
jurisdiction, requires the removal or remediation of said contamination, Lessee
shall pay the costs of the soils report within fifteen (15) days from the date
of invoice by Lessor. If any such toxic waste, spillage, or other contaminants
are found upon the Premises, Lessee shall either (i) remove such substance and
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remedy the problem as provided in (b) below or (ii) deposit with Lessor, within
fifteen (15) days of notice from Lessor to Lessee to do so, the amount necessary
to remove such substances and remedy the problem, if it is proven that Lessee is
responsible for such toxic waste, spillage, or contaminants.
Lessee shall abide by all laws, ordinances and statutes, as they now
exist or may hereafter be enacted by legislative bodies having jurisdiction
thereof, relating to its use and occupancy of the Premises.
A. Definitions. As used herein, the term "Hazardous Material"
shall mean any substance or material which has been determined by any state,
federal or local governmental authority to be capable of posing a risk of injury
to health, safety or property including all of those materials and substances
designated as hazardous or toxic by the Environmental Protection Agency, the
California Water Quality Control Board, the Department of Labor, the California
Department of Industrial Relations, the Department of Transportation, the
Department of Agriculture, the Consumer Product Safety Commission, the
Department of Health and Human Services, the Food and Drug Agency or any other
governmental agency now or hereafter authorized to regulate materials and
substances in the environment. Without limiting the generality of the foregoing,
the term "Hazardous Material" shall include all of those materials and
substances defined as "Toxic Materials" in Section 66680 through 66685 of Title
22 of the California Administrative Code, Division 4, Chapter 30, as the same
shall be amended from time to time.
B. Use Restriction. Lessee shall not cause or permit any Hazardous
Material to be used, stored, or disposed of in or about the Premises except in
strict accordance with all laws and ordinances governing Hazardous Materials.
The appearance of any Hazardous Material on or about the Premises which is
caused or permitted by Lessee shall be deemed an Event of Default. If the
presence of Hazardous Material on or about the Premises which is caused or
permitted by Lessee results in contamination of the Premises or any soil in or
about the Premises or groundwater under the Premises, Lessee, at its expense,
shall promptly take all action necessary to return the Premises to the condition
existing prior to the appearance of such Hazardous Material and shall perform
all monitoring, testing, containment clean-up and other actions required by any
applicable governmental agency.
C. Lessee's Indemnity. Lessee shall defend, hold harmless and
indemnify Lessor and its agents, lenders and employees from or against any and
all liabilities, obligations, damages, penalties, claims, costs (including
compliance and clean-up costs), charges, expenses
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of attorneys, expert witnesses, engineers and other consultants which may be
imposed upon, incurred by or asserted against Lessor or the Premises by reason
of any contamination of ;`he Premises or any soil in or about the Premises or
any groundwater under the Premises caused by Lessee's storage, use or disposal
of Hazardous Material in or about the Premises.
D. Lessor's Indemnification. Lessor shall indemnify, defend and
hold harmless Lessee from and against any and all liabilities, obligations,
damages, penalties, claims, costs, (including compliance and clean-up costs),
charges, expenses of attorneys, expert witnesses, engineers and other
consultants which may be imposed upon, incurred by or asserted against Lessee at
any time by reason of any contamination of the Premises caused by either
Lessor's storage or a previous tenant's use or disposal of Hazardous Material on
or about the Premises or caused by a release of Hazardous Material by third
parties which release is proven to have occurred on or off the Premises.
E. Representations and Warranties. Lessor represents and warrants
that Lessor has not received nor is aware of any notification from the
Department of Health Services, California Regional Water Quality Control Board,
the U.S. Environmental Protection Agency or such other City, County or State
authority having jurisdiction to require investigation, monitoring or
remediation of any release of Hazardous Material, on, above or beneath the
Premises. Lessor further represents that in the event that such notice or
notices are received by Lessor, Lessor shall promptly deliver copies thereof to
Lessee.
F. Compliance. Lessee shall immediately notify Lessor of any
inquiry, test, investigation, enforcement proceeding by or against Lessee or the
Premises concerning Hazardous Material used, stored or disposed of by Lessee or
alleged to have been used, stored or disposed of by Lessee on or about the
Premises. Lessor shall have the right to appoint a consultant to conduct an
investigation to determine whether Lessee has used, stored or disposed of
Hazardous Material on or about the Premises. If the consultant determines that
Hazardous Materials have been stored, used or disposed of by Lessee, Lessee, at
its expense, shall comply with all recommendations of the consultant, including,
without limitation, any recommended testing, monitoring and clean-up.
G. Assignment and Subletting. It shall not be unreasonable for
Lessor to withhold its consent to any proposed assignment or subletting if (i)
the proposed assignee's or sublessee's anticipated use of the Premises involves
the storage, use or disposal of Hazardous Material; (ii) if the proposed
assignee or sublessee has been required by any prior Lessor, lender or
governmental authority to "clean-up" Hazardous Material; (iii) if the proposed
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assignee or sublessee is subject to investigation or enforcement order or
proceeding by any governmental authority in connection with the use, disposal or
storage of a Hazardous Material.
H. Survival. The provisions contained in this Paragraph 6 shall
survive the expiration or earlier termination of this Lease.
7. Improvements. Lessor will, at its sole expense, make improvements to
the Premises as specified in Exhibit "B" attached hereto and by this reference
made a part hereof. Lessor will make reasonable efforts to complete such
improvements prior to February 1,1992.
8. Taxes and Assessments.
A. Lessee shall pay before delinquency any and all taxes,
assessments, license fees, public charges levied, assessed or imposed upon or
against Lessee's fixtures, equipment, furnishings, appliances and personal
property installed or located on or within the Premises. Lessee shall cause said
fixtures, equipment, furnishings, furniture, appliances and personal property to
be assessed and billed separately from the real property of Lessor. If any of
Lessee's said personal property shall be assessed with Lessor's real property,
Lessee shall pay to Lessor the taxes attributable to Lessee within ten (10) days
after receipt of a written statement from Lessor setting forth the taxes
applicable to Lessee's property.
B. All property taxes or assessments levied or assessed or
hereafter levied or assessed, by any governmental authority, against the
Premises or any portion of such taxes or assessments which becomes due or
accrued during the term of this Lease, shall be paid by Lessor. Lessee shall
reimburse Lessor for Lessee's proportionate share of such taxes or assessments
within ten (10) days of receipt of Lessor's invoice demanding such payment.
Lessee's liability hereunder shall be prorated to reflect the commencement and
termination dates of this Lease.
9. Insurance.
A. Indemnity. Lessee agrees to indemnify and defend Lessor against
and hold Lessor harmless from any and all demands, claims, causes of action,
judgments, obligations, liabilities, and all reasonable expenses incurred in
investigating or resisting the same (including reasonable attorney's fees) on
account of, or arising out of the Lessee's condition, use or occupancy of the
Premises. This Lease is made on the express condition that Lessor shall not be
liable for, or suffer loss by reason of, injury to person or property, from
whatever cause, in any way connected with the Lessee's use or occupancy of the
Premises, specifically including, without limitation, any liability for injury
to the person or property of Lessee, its agents, officers, employees, licensees
and invitees.
B. Liability Insurance. Lessee shall, at the Lessee's expense,
obtain and keep in
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force during the term of this Lease, a policy of commercial general liability
insurance insuring Lessor and Lessee, with cross-liability endorsements, against
any liability arising out of the condition, use or occupancy of the Premises and
Lessee's use of all areas appurtenant thereto, including parking areas. Such
insurance shall be in an amount satisfactory to Lessor of not less than
$3,000,000 for bodily injury or death as a result of any one occurrence, and
$500,000 for damage to property as a result of any one occurrence. The insurance
shall be with companies approved by Lessor, which approval Lessor agrees not to
unreasonably withhold. Lessee shall deliver to Lessor prior to possession, a
certificate of insurance evidencing the existence of the policy required
hereunder, and such certificate shall certify that the policy (1) names Lessor
as an additional insured, (2) shall not be canceled without thirty (30) days
prior written notice to Lessor, (3) insures performance of the indemnity set
forth in Sub-paragraph (A) above subject to standard commercial general
liability coverage exclusions, and (4) the coverage is primary and any coverage
by Lessor is in excess thereto.
C. Property Insurance. Lessor shall obtain and keep in force
during the term of this Lease, a policy or policies of insurance covering loss
or damage to the Premises, in the amount of the full replacement value thereof,
providing protection against those perils included within the classification
covering Direct Risk of physical loss with endorsement covering Special Form
perils insurance, plus a policy of rental income insurance in the amount of 100%
of the twelve (12) months rent (including sums payable as Additional Rent), and,
at Lessor's option, earthquake insurance and flood insurance. Lessee shall have
no interest in nor any right to the proceeds of any insurance procured by Lessor
on the Premises. Lessee shall, within twenty (20) days after receipt of billing,
pay to Lessor as additional rent, the full cost of such insurance procured and
maintained by Lessor. Lessee acknowledges that such insurance procured by Lessor
shall contain a deductible which reduces Lessee's cost for such insurance and,
in the event of loss or damage, Lessee shall be required to pay to Lessor the
amount of such deductible.
D. Release of Lessor. Lessee acknowledges that the insurance to be
maintained by Lessor on the Premises pursuant to Sub-paragraph C above will not
insure any of Lessee's property. Accordingly, Lessee, at Lessee's own expense,
shall maintain in full force and effect on all its fixtures, equipment,
leasehold improvements and personal property in the Premises, a policy covering
Direct Risk of physical loss with endorsement covering Special Form perils
insurance to the extent of at least ninety (90%) percent of their insurable
value. Lessee hereby releases Lessor, and its partners, officers, agents,
employees, and servants, from any and all claims, demands, loss, expense or
injury to the Premises or to the furnishings,
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fixtures, equipment, inventory or other personal property of Lessee in, about,
or upon the Premises which is caused by perils, events or happenings which are
covered by insurance required by this Lease or which are the subject of
insurance carried by Lessee and in force at the time of such loss. Lessee shall
procure an appropriate clause in, or an endorsement to, all policies required by
this Lease, or any other insurance policy maintained by Lessee with respect to
the Premises or Lessee's occupancy thereof, pursuant to which the insurance
company or companies waive subrogation or consent to a wavier of a right of
recovery against Lessor.
E. Mutual Waiver of Subrogation. Lessee and Lessor hereby mutually
waive their respective rights for recovery against each other for any loss of or
damage to the property of either party, where such loss or damage is insured by
any insurance policy required to be maintained by this Lease or otherwise in
force at the time of such loss or damage. Each party shall obtain any special
endorsements, if required by the insurer, whereby the insurer waives its right
of recovery against the other party hereto. The provisions of this Sub-paragraph
E shall not apply in those instances in which waiver of subrogation would cause
either party's insurance coverage to be voided or otherwise made uncollectable.
10. Utilities. Lessee shall pay for all water, gas, light, heat, power,
electricity, telephone, trash pick-up, sewer charges, and all other services
supplied to or consumed on the Premises, and all taxes and surcharges thereon.
Lessor shall install a separate electric service so that the subject space is
billed on Lessee's own separate meter. Until the separate meter is installed,
Lessee agrees to pay its prorate share of the monthly utility charges to the
whole building of which the subject space is a part. Further, in the event that
any other utility services are not separately metered to the Premises, the cost
of such utility service shall be an Outside Area Charge and Lessee shall pay its
share of such cost to Lessor as provided in Paragraph 13 below. In addition, the
cost of any utility service supplied to the Outside Area shall be an Outside
Area Charge and Lessee shall pay its share of such cost to Lessor as provided in
Paragraph 13 below.
11. Repairs and Maintenance.
A. Subject to provisions of Paragraph 17, Lessor shall be
responsible for the cost of maintaining the roof until a new roof is installed.
Lessor shall keep and maintain the paving, structural elements, landscaping,
irrigation, the roof, except for the first time a new roof is installed and the
exterior walls of the building in which the Premises are located and all common
areas in good order and repair. Lessee shall reimburse Lessor for its
proportionable
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share of said expense within ten (10) days of Lessee's receipt of Lessor's
invoice demanding payment. If, however, any repairs or maintenance are required
because of an act or omission of Lessee, or its agents, employees, or authorized
representatives, Lessee shall pay to Lessor upon demand 100% of the costs of
such repair or maintenance.
Notwithstanding the foregoing, if the roofing or roof membrane is
replaced during the Lease term, Lessor shall be responsible for the cost of such
replacement.
B. Except as expressly provided in Sub-paragraph (A) above, Lessee
shall at its sole cost, keep and maintain the entire Premises and every part
thereof, including, without limitation, the windows, window frames, plate glass,
glazing, truck doors, doors, all door hardware, interior of the Premises,
interior walls and partitions, and the electrical, plumbing, heating and
air-conditioning systems in good and sanitary order, condition and repair.
Lessee shall, at all times during the Lease term, have in effect a
service contract for the maintenance of the heating, ventilating and
air-conditioning (HVAC) equipment with a HVAC repair and maintenance contractor
approved by Lessor which provides for periodic inspection and servicing at least
once every three (3) months during the term hereof and shall provide Lessor with
a copy of such contract and all periodic service reports.
Should Lessee fail to maintain the Premises or make repairs
required of Lessee hereunder forthwith upon notice from Lessor, Lessor, in
addition to all other remedies available hereunder or by law, and without
waiving any alternative remedies, may make the same, and in that event, Lessee
shall reimburse Lessor as additional rent for the reasonable cost of such
maintenance or repairs on the next date upon which rent becomes due.
Lessee hereby expressly waives the provisions of Sub-section 1 of
Section 1932, and Sections 1941 and 1942 of the Civil Code of California and all
rights to make repairs at the expense of Lessor, as provided in Section 1942 of
said Civil Code.
12. Outside Area . Subject to the terms and conditions of this Lease
and such rules and regulations as Lessor may from time to time prescribe, Lessee
and Lessee's employees, invitees and customers shall, in common with other
occupants of the parcel on which the Premises are located, and their respective
employees, invitees and customers, and others entitled to the use thereof, have
the non-exclusive right to use the access roads, parking areas and facilities
provided and designated by Lessor for the general use and convenience of the
occupants of the parcel on which the Premises are located, which areas and
facilities are referred to herein as "Outside Area". This right shall terminate
upon the termination of this Lease. Lessor reserves the right from time to time
to make changes in the shape, size, location, amount and extent of the Outside
Area. Lessor further reserves the right to promulgate such reasonable rules and
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regulations relating to the use of the Outside Area, and any part or parts
thereof, as Lessor may deem appropriate for the best interest of the occupants
of the parcel. The rules and regulations shall be binding upon Lessee upon
delivery of a copy of them to Lessee, and Lessee shall abide by them and
cooperate in their observance. Such rules and regulations may be amended by
Lessor from time to time, with or without advance notice, and all amendments
shall be effective upon delivery of a copy to Lessee, provided such regulation
does not interfere with Lessee's quiet enjoyment.
Lessee shall have the exclusive use of eighty-nine (89) parking
spaces in the Outside Area as designated from time to time by Lessor. Lessee
shall not at any time park or permit the parking of Lessee's trucks or other
vehicles, or the trucks or other vehicles of others, adjacent to the loading
areas so as to interfere in any way with the use of such areas, nor shall Lessee
at any time park or permit the parking of Lessee's vehicles or trucks, or the
vehicles or trucks of Lessee's suppliers or others, in any portion of the
Outside Area not designated by Lessor for such use by Lessee. Lessee shall not
abandon any inoperative vehicles or equipment on any portion of the Outside
Area.
Lessor shall operate, manage, maintain and repair the Outside Area
in good order, condition and repair. The manner in which the Outside Area shall
be maintained and the expenditures for such maintenance shall be at the
discretion of the Lessor. The cost of such repair, maintenance, operation and
management, including without limitation, maintenance and repair of landscaping,
irrigation systems, paving, sidewalks, fences and lighting, shall be an Outside
Area Charge and Lessee shall pay to Lessor its share of such costs as provided
in Paragraph 13 below.
13. Outside Area Charges. Lessee shall pay to Lessor, as additional
rent, upon demand but not more often than once each calendar month, an amount
equal to fifty-four (54%) percent of the Outside Area Charges as defined in this
Lease. Lessee acknowledges and agrees that the Outside Area Charges shall
include an additional one (1%) percent of the actual expenditures in order to
compensate the Lessor for accounting and processing services. The Outside Area
Charges shall be documented by Lessor.
14. Alterations and Additions. Lessee shall not make, or suffer to be
made, any alterations, improvements, or additions in, on or about, or to the
Premises or any part thereof, without the prior written consent of Lessor, and
without a valid building permit issued by the appropriate governmental
authority. Lessor retains, at his sole option, the right to perform all repairs,
alterations, improvements or additions in, or about, or to said Premises or any
part
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thereof. As a condition to giving such consent, Lessor may require that Lessee
agree to remove any such alterations, improvements or additions at the
termination of this Lease, and to restore the Premises to their prior condition.
Any alteration, addition, or improvement to the Premises, except movable
furniture and trade fixtures not affixed to the Premises, shall become the
property of the Lessor upon installation, and shall remain upon and be
surrendered with the Premises at the termination of this Lease. Lessor can
elect, however, within thirty (30) days before expiration of the term to require
Lessee to remove any alterations, additions or improvements that Lessee has made
to the Premises. If Lessor so elects, Lessee shall restore the Premises to the
condition designated by Lessor in its election, before the last day of the term,
or within thirty (30) days after notice of election is given, whichever is
later. Alterations and additions, which are not to be deemed as trade fixtures,
include heating, lighting, electrical systems, air-conditioning, partitioning,
electrical signs, carpeting or any other installation which has become an
intregal part of the Premises. In the event Lessor consents to Lessee's making
any alterations, improvements or additions, Lessee shall notify Lessor in
writing at least fifteen (15) days prior to commencing work and Lessee shall be
responsible for the timely posting of notices of non-responsibility on Lessor's
behalf, providing that Lessor shall be responsible for executing and recording
said notices and delivering the same to Lessee for posting, which shall remain
posted until completion of the alterations, additions, or improvements. Lessee's
failure to notify Lessor within the time period provided in the preceding
sentence shall be a breach of this Lease.
If, during the term hereof, any alteration, change or addition of
any sort through all or any portion of the Premises or of the building of which
the Premises form a part, is required by law, regulation, ordinance or order of
any public agency, Lessee, at its sole cost and expense, shall promptly make the
same.
15. Acceptance of the Premises and Covenant to Surrender. By entry and
taking possession of Premises to this Lease, Lessee accepts the Premises as
being in good and sanitary order, condition and repair and accepts Premises in
their condition existing as of date of such entry and Lessee further accepts any
tenant improvements to be constructed by Lessor, if any as being completed in
accordance with plans and specifications for such improvements.
Subject to Paragraphs 17 and 18, Lessee agrees on the last day of
the term hereof, or on sooner termination of this Lease, to surrender the
Premises together with all alterations, additions and improvements which may
have been made in, to or on the Premises by Lessor or Lessee, unto Lessor in
good and sanitary order, condition and repair, excepting for such wear
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and tear as would be normal for the period of Lessee's occupancy. Lessee, on or
before the end of term or sooner termination of this Lease, shall remove all
personal property and trade fixtures from the Premises, and all property not so
removed shall be deemed to be abandoned by Lessee. Lessee further agrees that at
the end of the term or sooner termination of this Lease, Lessee, at its sole
expense shall have the carpets steam cleaned, the walls and columns painted, the
floors waxed, any damaged ceiling tiles replaced, the windows cleaned, the
drapes cleaned and any damaged doors replaced.
If the Premises are not surrendered at the end of the term or
sooner termination of this Lease, Lessee shall indemnify Lessor against loss or
liability resulting from delay by Lessee in so surrendering the Premises,
including, without limitation, any claims made by any succeeding tenant founded
on such delay.
16. Default. In the event of any default under the terms of this Lease
by Lessee, or an abandonment of the Premises by the Lessee, the Lessor has the
option of: (1) removing all persons and property from the Premises and
repossessing the Premises, in which case any of the Lessee's property which
Lessor removes from the Premises may be stored in a public warehouse or
elsewhere at the cost of, and for the account of Lessor or, (2) allowing the
Lessee to remain in full possession and control of the Premises. If the Lessor
chooses to repossess the Premises, the Lease will automatically terminate in
accordance with the provisions of California Civil Code Section 1951.2. In the
event of such termination of the Lease, Lessor may recover from the Lessee: (1)
the worth at the time of award of unpaid rent which had been earned at the time
of termination, including interest at the maximum rate an individual is
permitted by law to charge; (2) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that the Lessee proves
could have been reasonably avoided, including interest at the maximum rate an
individual is permitted by law to charge; (3) the worth at the time of award of
the amount by which the unpaid rent for the balance of the term after the time
of award exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (4) any other amount necessary to compensate the Lessor
for all the detriment proximately caused by the Lessee's failure to perform his
obligations under the Lease or which, in the ordinary course of things, would be
likely to result therefrom. "The worth at the time of the award", as used in (1)
and (2) of this paragraph is to be computed by allowing interest at the maximum
rate an individual is permitted by law to charge. "The worth at the time of the
award", as referred to in (3) of this paragraph is to be computed by discounting
the amount at
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the discount rate of the Federal Reserve Bank of San Francisco at the time of
the award, plus one (1%) percent.
If Lessor chooses not to repossess the Premises, but allows the
Lessee to remain in full possession and control of the Premises, then in
accordance with provisions of California Civil Code Section 1951.4, the Lessor
may treat the Lease as being in full force and effect, and may collect from the
Lessee all rents as they become due through the termination date of the Lease,
as specified in the Lease. For the purpose of this paragraph, the following do
not constitute a termination of Lessee's right to possession:
a) Acts of maintenance or preservation, or efforts to relet the
property.
b) The appointment of a receiver on the initiative of the Lessor
to protect his interest under this Lease.
Lessee shall be liable immediately to Lessor for all costs Lessor
incurs in reletting the Premises, including, without limitation, brokers'
commissions, expense of remodeling the Premises required by the reletting, and
like costs. Reletting can be for a period shorter or longer than the remaining
term of this Lease. Lessee shall pay to Lessor the rent due under this Lease on
the dates the rent is due, less the rent the Lessor receives from any reletting.
No act by Lessor allowed by this Section shall terminate this Lease unless
Lessor notifies Lessee that Lessor elects to terminate this Lease. After
Lessee's default, and for as long as Lessor does not terminate Lessee's right to
possession of the Premises, if Lessee obtains Lessor's consent, Lessee shall
have the right to assign or sublet its interest in this Lease, but Lessee shall
not be released from liability. Lessor's consent to proposed assignment or
subletting shall not be unreasonably withheld.
If Lessor elects to relet the Premises as provided in this
Paragraph, rent that Lessor receives from reletting shall be applied to the
payment of
First, any indebtedness from Lessee to Lessor other than rent
due from Lessee;
Second, all costs, including for maintenance, reasonably
incurred by Lessor in reletting;
Third, rent due and unpaid under this Lease. After deducting
payment referred to in this Paragraph, any sum remaining from rent
Lessor receives from reletting shall be applied in payment of
future rent as rent becomes due under this Lease. If on the date
rent is due
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under this Lease, the rent received from reletting is less than
the rent due on that date, Lessee shall pay to Lessor, in addition
to remaining rent due, all costs, including for maintenance,
Lessor incurred in reletting that remain after applying rent
received from the reletting, as provided in this paragraph.
Lessor at any time after Lessee commits a default can cure the
default at Lessee's cost. If Lessor at any time, by reason of Lessee's default,
pays any sum or does any act that requires the payment of any sum, the
reasonable sum paid by Lessor shall be due immediately from Lessee to Lessor at
the time the sum is paid, and if paid at a later date shall bear interest at the
maximum rate an individual is permitted by law to charge from the date the sum
is paid by Lessor until Lessor is reimbursed by Lessee. The sum, together with
interest on it, shall be additional rent.
Rent not paid within five (5) days after becoming due shall bear
interest at the maximum rate an individual is permitted by law to charge from
the date due until paid.
17. Damage or Destruction.
(a) Uninsured Minor Casualty. In the event that any portion of the
Premises are destroyed or damaged by an uninsured peril. Lessor or Lessee may,
upon written notice to the other, given within thirty (30) days after the
occurrence of such damage or destruction, elect to terminate this Lease;
provided, however, that either party may, within thirty (30) days after receipt
of such notice, elect to make any required repairs and/or restoration at such
party's sole cost and expense, in which event this Lease shall remain in full
force and effect, and the party having made such election to restore or repair
shall thereafter diligently proceed with such repairs and/or restoration.
(b) Insured Major Casualty. In the event the Premises are damaged
or destroyed from any insured peril to the extent of thirty-three (33(degree)/O)
percent or more of the then replacement cost of the Premises Lessor may, upon
written notice to Lessee, given within thirty (30) days after the occurrence of
such damage or destruction, elect to terminate this Lease. If Lessor does not
give such notice in writing within such period, Lessor shall be deemed to have
elected to rebuild or restore the Premises, in which event Lessor shall, at its
expense, promptly rebuild or restore the Premises to their condition prior to
the damage or destruction.
(c) Insured Minor Casualty. In the event the Premises are damaged
or destroyed from any insured peril to the extent of less than thirty-three
(33%) percent of the then replacement cost of the Premises, Lessor shall, at
Lessor's expense, promptly rebuild or restore the Premises to their condition
prior to the damage or destruction.
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In the event that, pursuant to the foregoing provisions, Lessor is
to rebuild or restore the Premises, Lessor shall, within thirty (30) days after
the occurrence of such damage or destruction, provide Lessee with written notice
of the time required for such repair or restoration. If such period is longer
than one hundred eighty (180) days from the issuance of a building permit,
Lessee may, within thirty (30) days of receipt of Lessor's notice, elect to
terminate the Lease by giving written notice to Lessor of such election,
whereupon the Lease shall immediately terminate. The period of time for Lessor
to complete the repair or restoration shall be extended for delays caused by the
fault or neglect of Lessee or because of acts of God, acts of stormy weather,
inability to obtain materials, supplies or fuels, acts of contractors or
subcontractors, or delay of contractors or subcontractors due to such causes or
other contingencies beyond the control of Lessor. Lessor's obligation to repair
or restore the Premises shall not include restoration of Lessee's trade
fixtures, equipment, merchandise, or any improvements, alterations or additions
made by Lessee to the Premises.
Unless this Lease is terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect; provided, however,
that during any period of repairs or restoration, rent and all other amounts to
be paid by Lessee on account of the Premises and this Lease shall be abated in
proportion to the area of the Premises rendered not reasonably suitable for the
conduct of Lessee's business thereon. Lessee hereby expressly waives the
provisions of Section 1932, Subdivision 2 and Section 1933, Subdivision 4 of the
California Civil Code.
18. Condemnation. If any part of the Premises shall be taken for any
public or quasi-public use, under any statute or by right of eminent domain, or
private purchase in lieu thereof, and a part thereof remains, which is
susceptible of occupation and use hereunder, this Lease, shall, as to the part
so taken, terminate as of the date title shall vest in the condemner or
purchase, and the rent payable hereunder shall be adjusted so that the Lessee
shall be required to pay for the remainder of the term only such portion of such
rent as the value of the part remaining after such taking bears to the value of
the entire Premises prior to such taking. Lessor and Lessee shall have the
option to terminate this Lease in the event that such taking causes a reduction
in rent payable hereunder by fifty (50%) percent or more. If all of the Premises
or such part thereof be taken so that there does not remain a portion
susceptible for occupation and use hereunder, as reasonably necessary for
Lessee's conduct of its business as contemplated in this Lease, this Lease shall
thereupon terminate. If a part or all of the Premises be taken, all compensation
awarded upon such taking shall go to the Lessor, and the Lessee shall have no
claim thereto and the Lessee hereby irrevocably assigns and transfers to
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the Lessor any right to compensation or damages to which the Lessee may become
entitled during the term hereof by reason of the purchase or condemnation of all
or a part of the Premises.
If this Lease is terminated by either Lessor or Lessee pursuant to
this Paragraph 18, Lessor shall receive (and Lessee shall assign to Lessor upon
demand from Lessor) any and all income, rent, award or interest thereon which
may be paid or owed in connection with the exercise of such power of eminent
domain or conveyance in lieu thereof and Lessee shall have no claim against
Lessor except that Lessee shall have the right to recover its share of any award
or consideration for (a) moving expenses; (b) loss or damage to Lessee's trade
fixtures, furnishings, equipment and other personal property; and (c) business
goodwill.
19. Free from Liens. Lessee shall (1) pay for all labor and services
performed and for materials used by or furnished to Lessee, or any contractor
employed by Lessee with respect to the Premises, and (2) indemnify, defend and
hold Lessor and the Premises harmless and free from any liens, claims, demands,
encumbrances or judgments created or suffered by reason of any labor or services
performed for materials used by or furnished to Lessee or any contractor
employed by Lessee with respect to the Premises and (3) give notice to Lessor in
writing five (5) days prior to employing any laborer or contractor to perform
services related, or receiving materials for use upon the Premises, and (4)
shall post, on behalf of Lessor, a notice of non-responsibility in accordance
with the statutory requirements of California Civil Code Section 3094, or any
amendment thereof, provided that Lessor shall be responsible for executing and
recording such notices. In the event an improvement bond with a public agency in
connection with the above is required to be posted, Lessee agrees to include
Lessor as an additional obligee.
20. Compliance with Laws. Subject to the provisions of Paragraph 14
above, Lessee shall, at its own cost, comply with and observe all requirements
of all municipal, county, state and federal authority now in force, or which may
hereafter be in force, pertaining to the use and occupancy of the Premises.
21. Subordination. Lessee agrees that this Lease shall, at the option
of Lessor, be subjected and subordinated to any mortgage, deed of trust, or
other instrument of security, which has been or shall be placed and this
subordination is hereby made effective without any further act of Lessee or
Lessor. The Lessee shall, at any time hereinafter, within twenty-four (24) hours
of delivery, execute any instruments, releases or other documents that may be
required by any mortgage, mortgagor, or trustor or beneficiary under any deed of
trust or other instrument of security. If Lessee fails to execute and deliver
any such documents or
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instruments, Lessee irrevocably constitutes and appoints Lessor as Lessee's
special attorney-in-fact to execute and deliver any such documents or
instruments.
However, the provisions of this Paragraph 21 shall not be
effective with respect to the interest of any successor to Lessor unless and
until such successor shall have delivered to Lessee a written non-disturbance
agreement for the benefit of Lessee, to the effect that this Lease shall not be
terminated in the event of any default under any ground lease or underlying
lease or any foreclosure or sale pursuant to the terms of any mortgage or deed
of trust, so long as Lessee is not in default (after the expiration of all
applicable cure periods) under the terms Of this Lease, and Lessee agrees to
attorn to and become the Lessee of Lessor's successor. In addition, Lessor shall
use its best efforts to obtain such a written non-disturbance agreement from all
existing lienholders having an interest in the Premises. So long as Lessee pays
all rentals required hereunder and observes and performs all of the covenants,
conditions and provisions on Lessee's part to be observed and performed
hereunder, Lessee shall have quiet possession of the Premises for the entire
Lease term, subject to all the provisions of this Lease.
22. Abandonment. Lessee shall not vacate nor abandon the Premises at
any time during the term. If Lessee shall abandon, vacate or surrender said
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Lessee and left on the Premises shall be deemed to be
abandoned at the option of Lessor, except such property as may be mortgaged to
Lessor; provided, however, that Lessee shall not be deemed to have abandoned or
vacated the Premises so long as Lessee continues to pay all rents as and when
due and otherwise pursuant to terms and conditions of the Lease.
23. Assignment and Subletting. Lessee's interest in this Lease is not
assignable by operation of law or otherwise nor shall Lessee have the right to
sublet the Premises, transfer any interest of Lessee's therein or permit any use
of the Premises by another party, without prior written consent of Lessor to
such assignment, subletting or transfer of use, which consent shall not be
unreasonably withheld.
If Lessee is a partnership, a withdrawal or change, voluntary,
involuntary or by operation of law of any partner(s) owning fifty (50%) percent
or more of the partnership, or the dissolution of the partnership, shall be
deemed a voluntary assignment.
If Lessee consists of more than one person, a purported
assignment, voluntary, involuntary or by operation of law, from one person to
the other or from a majority of persons to the others, shall be deemed a
voluntary assignment.
If Lessee is a corporation, any dissolution, merger,
consolidation, or other reorganization of Lessee, or the sale or other transfer
of a controlling percentage of capital stock of Lessee, or sale of at least
fifty-one (51%) percent of the value of assets of Lessee, shall
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be deemed a voluntary assignment. The phrase, "controlling percentage" means
ownership of and right to vote, stock possessing at least fifty-one (51%)
percent of the total combined voting power of all classes of Lessee's capital
stock issued, outstanding, and entitled to vote for election of directors. This
Paragraph shall not apply to corporations the stock of which is traded through
an exchange or over the counter.
Lessor's prior consent shall not be required for any assignment,
sublease or other transfer of Lessee's interest in the Premises or this to any
corporation with which Lessee may merge or consolidate or become affiliated as a
parent, subsidiary, holding company or otherwise, or to an entity in which
Lessee has a controlling interest, provided that any such transfer shall not
result in Lessee's being released or discharged from any liability under this
Lease and such assignee, sublessee or transferee shall, prior to taking
possession of the Premises, deliver to Lessor written notice of the transfer and
its terms, covenants, conditions and provisions of the Lease, including without
limitation the provisions regarding the use of the Premises.
In the event of any such subletting or transfer which is consented
to, or not consented to, by Lessor, a sublessee agrees to pay monies or other
consideration whether by increased rent or otherwise, in excess of or in
addition to those provided for herein, then all such excess or additional monies
or other consideration shall be paid solely to Lessor, and this shall be one of
the conditions to obtaining Lessor's consent.
Lessee immediately and irrevocably assigns to Lessor, as security
for Lessee's obligations under this Lease, all rent from any subletting of all
or part of the Premises as permitted by this Lease, and Lessor, as assignee and
as attorney-in-fact for Lessee, or a receiver for Lessee appointed on Lessor's
application, may collect such rent and apply it toward Lessee's obligations
under this Lease; except that until the occurrence of an act of default by the
Lessee, Lessee shall have the right to collect such rent.
A consent to or assignment, subletting, occupation or use by
another party shall not be deemed to be a consent to any subsequent assignment,
subletting, occupation or use by another party. Any assignment or subletting
without such consent shall be void and shall at the option of Lessor, terminate
this Lease. Lessor's waiver or consent to any assignment or subletting hereunder
shall not relieve Lessee from any obligation under this Lease unless the consent
shall so provide. If Lessee requests Lessor to consent to a proposed assignment
or subletting, Lessee shall pay to Lessor, whether or not consent is ultimately
given, Lessor's reasonable attorney's fees incurred in conjunction with each
such request.
24. Parking Charges. Lessee agrees to pay upon demand, based on its
percent of occupancy of the entire building, its pro-rata share of any parking
charge, surcharges, or any other cost
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hereafter levied or assessed by local, state or federal governmental agencies in
connection with the use of parking facilities serving the Premises including
without limitation, parking surcharges imposed by or under authority of the
Federal Environmental Protection Agency.
25. Insolvency on Bankruptcy. Either (a) the appointment of a receiver
to take possession of all or substantially all of the assets of Lessee, or (b) a
general assignment by Lessee for the benefit of creditors or (c) any action
taken or suffered by Lessee under any insolvency or bankruptcy act shall
constitute a breach of this Lease. Upon the happening of any such event, this
Lease shall terminate ten (10) days after written notice of termination from
Lessor to Lessee. This section is to be applied consistent with applicable state
and federal law in effect at the time such event occurs.
Any action referred to above which is suffered involuntarily by
Lessee shall not constitute an unauthorized assignment or transfer or a breach
of this Lease by Lessee if Lessee shall successfully dismiss any action or
proceeding in connection therewith within sixty (60) days of the filing thereof.
In such event, Lessor shall not be entitled to exercise its remedies described
in said Section until the expiration of such sixty (60)-day period, provided
that Lessee shall diligently pursue such dismissal.
26. Lessor Loan or Sale. Lessee agrees promptly following request by
Lessor to (a) execute and deliver to Lessor any documents including estoppel
certificates presented to Lessee by Lessor, (i) certifying that this Lease is
unmodified and in full force and effect, or if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect and the date to which the rent and other charges are paid in
advance, and (ii) acknowledging that there are not, to Lessee's knowledge, any
uncured defaults on the part of Lessor hereunder, and (iii) evidencing the
status of the Lease as may be required by either a lender making a loan to
Lessor, to be secured by deed of trust or mortgage covering the Premises, or a
purchaser of the Premises from Lessor and (b) if requested by any bona fide
lender of Lessor or purchaser of the Premises, to deliver to Lessor current
financial statements of Lessee, including a balance sheet and profit and loss
statement for the current fiscal year and the two (2) immediately prior fiscal
years, all prepared in accordance with generally accepted accounting principles
consistently applied. Lessee's failure to deliver an estoppel certificate within
ten (10) days following such request shall constitute a default under this Lease
and shall be conclusive upon Lessee that this Lease is in full force and effect
and has not been modified except as may be represented by Lessor. If Lessee
fails to deliver the estoppel certificate within ten (10) days of written notice
delivered by certified mail, Lessee irrevocably constitutes and appoints Lessor
as its special attorney-in-fact to execute and deliver the certificate to any
third party.
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27. Surrender of Lease. The voluntary or other surrender of this Lease
by Lessee, or a mutual cancellation thereof, shall not work a merger nor relieve
Lessee of any of Lessee's obligations under this Lease, 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 him of any or all such
subleases or subtenancies.
28. Attorneys' Fees. If for any reason, any suit be initiated to
enforce any provisions of this Lease, the prevailing party shall be entitled to
legal costs, expert witness expenses and reasonable attorneys' fees as fixed by
the court.
29. Notices. All notices to be given to Lessee may be given in writing
personally or by depositing the same in the United States mail, postage prepaid,
and addressed to Lessee at the said Premises. Any notice or document required or
permitted by this Lease to be given Lessor shall be addressed to Lessor at the
address set forth below, or at such other address as it may have theretofore
specified by notice delivered in accordance herewith:
LESSOR: VASONA BUSINESS PARK
3880 South Bascom
Avenue, Suite 207
San Jose, California 95124
LESSEE: CAERE CORPORATION
100 Cooper Court
Los Gatos, California 95030
30. Transfer of Security. If any security be given by Lessee to secure
the faithful performance of all or any of the covenants of this Lease on the
part of Lessee, Lessor may transfer and/or deliver the security, as such, to the
purchaser of the reversion in the event that the reversion be sold, and
thereupon Lessor shall be discharged from any further liability in reference
thereto, upon the assumption by such transferee of Lessor's obligations under
this Lease.
31. Waiver. The waiver by Lessor or Lessee of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Lessor shall not be deemed to be a waiver of any preceding
breach by Lessee of any term, covenant or condition of this Lease, other than
the failure Of Lessee to pay the particular rental so accepted, regardless of
Lessor's knowledge of such preceding breach at the time of acceptance of such
rent.
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32. Holding Over. Any holding over after the expiration of the term or
any extension thereof, with the consent of Lessor, shall be construed to be a
tenancy from month-to-month, at a rental of one and one-half times the previous
month's rental rate per month, and shall otherwise be on the terms and
conditions herein specified, so far as applicable.
33. Limitation on Lessor's Liability. If Lessor is in default of this
Lease, and as a consequence Lessee recovers a money judgment against Lessor, the
judgment shall be satisfied only out of the proceeds of sale received on
execution of the judgment and levy against the right, title and interest of
Lessor in the Premises, or in the building, other improvements and land of which
the Premises are part, and out of rent or other income from such real property
receivable by Lessor or out of the consideration received by Lessor from the
sale or other disposition of all or any part of Lessor's right, title and
interest in the Premises or in the building, other improvement and land of which
the Premises are part. Neither Lessor nor any of the partners comprising the
partnership designated as Lessor shall be personally liable for any deficiency.
34. Miscellaneous.
a) Time is of the essence of this Lease, and of each and all of
its provisions.
b) The term "Building" shall mean the building in which the
Premises are situated.
c) If the Building is leased to more than one tenant, then each
such tenant, its agents, officers, employees and invitees,
shall have the non-exclusive right (in conjunction with the use
of the part of the building leased to such tenant) to make
reasonable use of any driveways, sidewalks and parking areas
located on the parcel of land on which the Building is
situated, except such parking areas as may from time to time be
leased for exclusive use by other tenant(s).
d) Lessee's such reasonable use of parking areas shall not exceed
that percent of the total parking areas which is equal to the
ratio which floor space of the Premises bears to floor space of
the Building.
e) The term "assign" shall include the "transfer".
f) The invalidity or unenforceability of any provision of this
Lease shall not affect the validity or enforceability of the
remainder of this Lease.
g) All parties hereto have equally participated in the preparation
of this Lease.
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h) The headings and titles to the paragraphs of this Lease are not
a part of this Lease and shall have no effect upon the
construction or interpretation of any part thereof.
i) Lessor has made no representation(s) whatsoever to Lessee
(express or implied) except as may be expressly stated in
writing, signed by all of the parties hereto or their
respective successors in interest.
j) This instrument contains all of the agreements and conditions
made between the parties hereto, and may not be modified orally
or in any other manner than by agreement in writing, signed by
all of the parties hereto or their respective successors in
interest.
k) It is understood and agreed that the remedies herein given to
Lessor shall be cumulative, and the exercise of any one remedy
by Lessor shall not be to the exclusion of any other remedy.
I) The covenants and conditions herein contained shall, subject to
the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the
parties hereto; and all of the parties hereto shall jointly and
severally be liable hereunder.
m) This Lease has been negotiated by the parties hereto and the
language hereof shall not be construed for or against either
party.
n) All exhibits to which reference is made are deemed incorporated
into this Lease, whether or not actually attached.
35. Even though this Lease is fully executed, it shall be binding only
upon receipt of a building permit from the Town of Los Gatos by Lessee for the
interior improvements shown on Exhibit "B" of the Lease for 100 Cooper Court,
Los Gatos. If said building permit is not obtained by December 31, 1991, this
Lease Agreement and the new Lease Agreement for 100 Cooper Court, Los Gatos
shall be null and void. The existing Leases for 104 Cooper Court, Los Gatos,
California and 100 Cooper Court, Los Gatos, California shall then continue in
full force and effect.
36. Lessee agrees to pay to Lessor Seventy-Five (75%) Percent of the
costs to remodel the 14,710 square feet of space Lessee is now leasing at 104
Cooper Court. Lessor shall provide Lessee with actual invoices of the work
completed and Lessee shall reimburse Lessor Seventy-five (75%) percent of this
cost within fifteen (15) days of receipt of invoice. The work shall include, but
not be limited to, demolition of walls, reconstruction of walls, adding T-bar
ceiling in the lounge, electrical, HVAC, painting and floor coverings and
patching.
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IN WITNESS HEREOF, Lessor and Lessee have executed this Lease on the
date first above-written.
LESSOR: VASONA BUSINESSPARK, LESSEE: CAERE CORPORATION,
A California Limited Partnership A California Corporation
BY: /s/ William A. Cooper BY: /s/ Blanche M. Sutter
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