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EXHIBIT 10.3.3
CONSENT TO SUBLEASE AGREEMENT
This Consent to Sublease Agreement (this "Agreement") is made as of June
24, 1998 by and among Xxxxxxx Properties, L.P., a California limited
partnership ("Landlord"), Schlumberger Resource Management Services, Inc., a
Delaware corporation, ("Sublandlord"), and Cholestech Corporation, a California
corporation ("Subtenant").
RECITALS
This Agreement is made with regard to the following facts:
A. Landlord and Sublandlord, as tenant, entered into a Lease dated June
24, 1997, (the "Lease"), for premises located at 00000 Xxxx Xxxxxxx Xx, Xxxxxxx
XX (the "Premises") in the office building commonly known as Bay Center
Business Park I (the "Building"). Initially capitalized terms not otherwise
defined herein shall have the same meanings as described in the Lease.
B. Under the terms of Paragraph 21 of the Lease, Sublandlord has
requested Landlord's consent to the Sublease Agreement dated June 12, 1998
between Sublandlord and Subtenant (the "Sublease"), which would sublease to
Subtenant the Premises, as more particular described in the Sublease (the
"Subleased Premises"). A copy of the Sublease is attached to this Agreement as
Exhibit A.
C. Landlord is willing to consent to the Sublease on the terms and
conditions contained in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement, and for valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties, the parties agree as follows.
1. LANDLORD'S CONSENT. Landlord consents to the Sublease. This
consent is granted only on the terms and conditions stated in this Agreement.
Landlord is not bound by any of the terms, covenants, or conditions of the
Sublease. The Sublease is subject and subordinate to the Lease. The Sublease
shall not be extended or amended without the prior written approval of
Landlord. Subtenant understands that notwithstanding a copy of the Sublease
being furnished to Landlord, and notwithstanding that its consent to the
Sublease is given in this Agreement, Landlord's contractual obligations as
landlord are solely to Sublandlord, and not to Subtenant, and Subtenant agrees
to look solely to Sublandlord for any breach or violation of the Sublease.
2. LIMITS OF CONSENT.
2.1 NONRELEASE OF SUBLANDLORD; FURTHER TRANSFERS; RECAPTURE
RIGHTS. Neither the Sublease nor this Agreement will:
(a) release Sublandlord from any liability, whether past,
present or future, under the Lease;
(b) after the primary liability of Sublandlord to pay the
Rent and perform all of the Tenant's obligations under the Lease (including
the payment of all bills rendered by Landlord for charges incurred by Subtenant
for services and materials supplied to the Subleased Premises);
(c) be construed as a waiver of Landlord's right to
consent to any proposed assignment, subletting or other transfer after the date
hereof by Sublandlord under the Lease or Subtenant under the Sublease, or as a
consent to any portion of the Subleased Premises being sued or occupied by any
other party; or
(d) limit Landlord's right, in the event of a proposed
future assignment or sublease, in recapture any portion of the Premises,
including the Subleased Premises, affected by that proposed sublease, as
provided in Paragraph 21 of the Lease; or
(e) constitute an assignment or partial assignment of any
rights under the Lease; or
(f) constitute any amendment, express or implied, of the
Lease.
Landlord may consent to any subsequent sublease and assignment of the
Sublease or any amendments or modifications to the Sublease without notifying
Sublandlord or anyone else liable under the Lease, including any guarantor of
the Lease, and without obtaining their consent. No such action by Landlord will
relieve any such persons from any liability to Landlord or otherwise with
regard to the Subleased Premises.
2.2 DENIAL OF CONSENT TO CERTAIN PROVISIONS. Landlord
specifically denies its consent to the following provisions of the Sublease.
Consent by Landlord to this subletting shall not include consent to the
assignment or transferring of any lease renewal, expansion or other option
rights, or any special privileges or extra services granted to Sublandlord by
the Lease, or addendum or amendment hereto or letter of agreement (and such
options, rights, privileges or services shall terminate upon such assignment or
transfer. Those provisions will not be binding on the Landlord in the event of
an attornment between Landlord and Subtenant.
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3. RELATIONSHIP WITH LANDLORD.
3.1 ASSIGNMENT OF TENANT'S INTEREST TO LANDLORD. Sublandlord
assigns and transfers to Landlord Tenant's interest in the Sublease and all
rentals and income arising from the Sublease, subject to the terms of this
Section 3. Landlord, by consenting to the Sublease, agrees that, until
Sublandlord defaults in performing its obligations under the Lease, Sublandlord
may receive, collect, and enjoy the rents accruing under the Sublease provided
that ninety percent (90%) of such rents and any other consideration realized by
Sublandlord under the Sublease in excess of the Rent payable under the Lease,
after amortization of a reasonable assignment and subletting costs by
Sublandlord, shall be paid to Landlord in accordance with Paragraph 21.B of the
Lease.
3.2 EFFECT OF SUBLANDLORD DEFAULT UNDER LEASE. If Sublandlord
defaults in the performance of its obligations to Landlord under the Lease
(whether or not Landlord terminates the Lease), if such default is not cured
within the applicable time period (if any) set forth in the Lease, Landlord
may, at its option by notice to Sublandlord, do either of the following:
(h) elect to receive and collect, directly from Subtenant,
all rent and any other sums owing and to be owed under the Sublease, as further
set forth in Section 3.3, below, without, however, waiving any of Landlord's
rights against Sublandlord as a result of such default.
3.3 LANDLORD'S ELECTION TO RECEIVE RENTS. Landlord will not, as a
result of the Sublease, or as a result of the collection of rents or any other
sums from Subtenant under Section 3.1 or 3.2(b), above, be liable to Subtenant
for any failure of Sublandlord to perform any obligation of Sublandlord under
the Sublease.
Sublandlord irrevocably authorizes and directs Subtenant, on receipt of
any written notice from Landlord stating that a default exists in the
performance of Sublandlord's obligations under the Lease, to pay to Landlord
the rents and any other sums due and to become due under the Sublease.
Sublandlord agrees that Subtenant has the right to rely on any such statement
from Landlord, and that Subtenant will pay those rents and other sums to
Landlord without any obligation or right to inquire as to whether a default
exists and despite any notice or claim from Sublandlord to the contrary,
Sublandlord will not have any right or claim against Subtenant for those rents
or other sums paid by Subtenant to Landlord pursuant to any such notice from
Landlord. Landlord will credit Sublandlord with any rent received by Landlord
under this assignment, but the acceptance of any payment on account of rent
from Subtenant as the result of a default by Sublandlord will not: (a) be an
attornment by Landlord to Subtenant or by Subtenant to Landlord; (b) be a
waiver by Landlord of any provision of the Lease; or (c) release Sublandlord
from any liability under the terms, agreements, or conditions of the Lease. No
payment of rent by Subtenant directly to Landlord, regardless of the
circumstances or reasons for that payment, will be deemed an attornment by
Subtenant to Landlord in the absence of a specific written agreement signed by
Landlord to that effect.
3.4 LANDLORD'S ELECTION OF TENANT'S ATTORNMENT. In the event the
Lease is terminated prior to the expiration of the term of the Sublease,
Landlord shall have the right, at Landlord's option, pursuant to notice to
Subtenant, to succeed to Sublandlord's interest in the Sublease and cause
Subtenant to attorn to Landlord. Landlord will prior to the expiration of the
term of the Sublease, Landlord shall have the right, at Landlord's option,
pursuant to notice to Subtenant, to succeed to Sublandlord's interest in the
Sublease and cause Subtenant to attorn to Landlord. Landlord will assume the
obligations of Sublandlord under the Sublease [(except as provided in Section
2.2 above)] from the time of the exercise of the option, but Landlord will not
be:
(a) liable for any rent paid by Subtenant to Sublandlord
more than one month in advance, of any security deposit paid by Subtenant to
Sublandlord;
(b) liable for any act or omission of Sublandlord under the
Lease or for any default of Sublandlord under the Sublease which occurred prior
to the Landlord's assumption;
(c) subject to any defenses or offsets that Subtenant may
have against Sublandlord which arose prior to Landlord's assumption; or
(d) bound by any changes or modifications made to the
Sublease without the prior written consent of Landlord.
4. CONSIDERATION FOR SUBLEASE. Sublandlord and Subtenant represent and
warrant that there are no additional payments of rent or any other
consideration of any type which has been paid or is payable by Subtenant to
Sublandlord in connection with the Sublease, other than as disclosed in the
Sublease.
5. GENERAL PROVISIONS.
5.1 BROKERAGE COMMISSION. Sublandlord and Subtenant agree that
Landlord will not be liable for any brokerage commission or finder's fee in
connection with the consummation of the Sublease or this Agreement. Sublandlord
and Subtenant will protect, defend, indemnify, and hold Landlord harmless from
any brokerage commission or finder's fee in connection with the consummation of
the Sublease or this Agreement, and from any cost or expense (including
attorneys' fees and costs) incurred by Landlord in resisting any claim for any
such brokerage commission or finder's fee. The provisions of this Section 5.1
shall survive the expiration or earlier termination of the Sublease and this
Agreement.
5.2 NOTICE. Any notice that may or must be given by any party
under this Agreement will be delivered (i) personally, (ii) by certified mail,
return receipt requested, or (iii) by a nationally recognized overnight
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courier, addressed to the party to whom it is intended. Any notice given to the
Landlord, Sublandlord or Subtenant shall be sent to the respective address set
forth on the signature page below, or to such other address as that party may
designate for service of notice by a notice given in accordance with the
provisions of this Section 5.2. A notice sent pursuant to the terms of this
Section 5.2 shall be deemed delivered (a) when delivery is attempted, if
delivered personally, (b) three (3) business days after deposit into the United
States mail, or (c) the day following deposit with a nationally recognized
overnight courier.
5.3 CONTROLLING LAW. The terms and provisions of this Agreement will be
construed in accordance with, and will be governed by, the laws of the State of
California.
5.4 ENTIRE AGREEMENTS WAIVER. In the event of any conflict between the
terms and provisions of the Lease and the Sublease, the terms and provisions of
the Lease shall control. This Agreement constitutes the final, complete and
exclusive statement between the parties to this Agreement pertaining to the
terms of Landlord's consent to the Sublease, supersedes all prior and
contemporaneous understandings or agreements of the parties, and (subject to
the provisions of Paragraph 21 of the Lease and Section 2.1 above) is binding
on and inures to the benefit of their respective heirs, representatives,
successors and assigns. No party has been induced to enter into this Agreement
by, nor is any party relying on, any representation or warranty outside those
expressly set forth in this Agreement. Any agreement made after the date of
this Agreement is ineffective to modify, waive, or terminate this Agreement, in
whole or part, unless that agreement is in writing, is signed by the parties to
this Agreement, and specifically states that that agreement modifies this
Agreement.
5.5 PARTIAL INVALIDITY. If any term, covenant, or condition in this
Agreement is, to any extent, held by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Agreement, or the application
of that term, covenant, or condition to persons or circumstances other than
those as to which it is held to be invalid or unenforceable, will not be
affected by that invalidity or unenforceability, and all other terms,
covenants, and conditions of this Agreement will be valid and enforceable to
the fullest extent permitted by law.
5.6 WAIVER OF JURY TRIAL; ATTORNEY FEES. If any party commences
litigation against any other party for the specific performance of this
Agreement, for damages for the breach hereof or otherwise for enforcement of
any remedy hereunder, the parties waive any right to a trial by jury and, in
the event of any commencement of litigation, the prevailing party shall be
entitled to recover from the applicable party such costs and reasonable
attorneys' fees and costs as may have been incurred.
5.7 LIMITATION OF LANDLORD'S LIABILITY. Redress for any claims against
Landlord under the Lease or this Agreement shall be limited as provided in
Paragraph 20 of the Lease.
5.8 See below
The parties have executed this Consent to Sublease Agreement as of the
above date.
LANDLORD: Landlord Address:
Xxxxxxx Properties, L.P., _________________________________
a California Limited Partnership _________________________________
_________________________________
_________________________________
By: Xxxxxxx Properties, Inc.,
a Maryland corporation,
its general partner
By:______________________
Its:__________________
SUBLANDLORD: Sublandlord Address:
Schlumberger Resource Management 0000 Xxxxxx Xx. #000
Services, Inc. Xxxxxxxx, XX 00000
By: /s/ XXXXXXX XXXXXXXX
-----------------------
Its: Dir.- Operations
SUBTENANT: Subtenant Address:
Cholestech corporation 0000 Xxxxxxxxxx Xxxx.
a California Corporation Xxxxxxx, XX 00000
By: /s/ XXXXX XXXXXXX
-----------------------
Its: VP of Operations
/s/ XXXXXX X. XXXXXXXX
-----------------------
President
5.8 The Waiver of Subrogation set forth in section 9 of the Master Lease
shall apply as between Landlord and both Tenant and Subtenant.
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BASIC LEASE INFORMATION
Lease Data: June 24, 1997
Tenant: Schlumberger Industries, Inc.
A Delaware Corporation
Address of Tenant: 00000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx
Landlord: Xxxxxxx Properties, L.P.
A California Limited Partnership
Address of Landlord: 0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Project Description: An approximately 148,665 square foot project
located Hayward, California and more commonly
known as Bay Center Business Park I, as outlined in
green on Exhibit "A".
Building Description: An approximately 26,639 square foot building and an
approximately 20,700 square foot building
designated as Building "A" and Building "B"
respectively, located in Bay Center Business Park I
as outlined in blue on Exhibit "A".
Premises: Approximately 5,800 square feet, more or less, of
office and warehouse space located in Building "A"
and approximately 900 square feet, more or less, of
storage space located in Building "B" of Bay Center
Business Park I, as outlined in red on Exhibit "A".
Permitted Uses: General office and warehouse.
Occupancy Density: Twelve (12) people
Scheduled Term
Commencement Date: July 1, 1997
Length of Term: Three (3) years
Rent:
Base Rent: Months Base Rent
------ ---------
1-12 $3,685 per month ($.55/sf/mo)
13-24 $3,819 per month ($.57/sf/mo)
25-36 $3,953 per month ($.59/sf/mo)
Estimated First
Year Basic
Operating Cost: $670 per month.
Security Deposit: $4,355
Tenant's Proportionate
Share: 21.77% of Building "A".
4.35 of Building "B".
4.51% of Project.
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
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TABLE OF CONTENTS
Page
Basic Lease Information 1
Table of Contents 2
1. Premises 3
2. Possession and Lease Commencement 3
3. Term 3
4. Use 3
5. Rules and Regulations 4
6. Rent 4
7. Basic Operating Cost 4
8. Insurance and Indemnification 6
9. Waiver of Subrogation 7
10. Landlord's Repairs and Services 7
11. Tenant's Repairs 7
12. Alterations 7
13. Signs 8
14. Inspection/Posting Notices 8
15. Utilities 8
16. Subordination 8
17. Financial Statements 8
18. Estoppel Certificate 9
19. Security Deposit 9
20. Tenant's Remedies 9
21. Assignment and Subletting 9
22. Quiet Enjoyment 9
23. Condemnation 10
24. Casualty Damage 10
25. Holding Over 10
26. Default 11
27. Liens 12
28. Substitution 12
29. Transfers by Landlord 12
30. Right of Landlord to Perform Tenant's Covenants 12
31. Waiver 12
32. Notices 13
33. Attorneys' Fees 13
34. Successors and Assigns 13
35. Force Majeure 13
36. Miscellaneous 13
37. Additional Provisions 13
EXHIBIT "A" Site Plan
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LEASE
THIS LEASE is made as of this 24th day of June, 1997, between Xxxxxxx
Properties, L.P. (hereinafter called "Landlord") and Schlumberger Industries,
Inc. a Delaware Corporation (hereinafter called "Tenant").
PREMISES
1. Landlord leases to Tenant and tenant leases from Landlord, upon the terms
and conditions hereafter set forth, those premises (the "Premises")
outlined in red on Exhibit "A" and described in the Basic Lease
Information. The Premises may be all or part of the building (the
"Building") or of the project (the "Project") which may consist of more
than one building. The Building and Project are outlined in blue and green
respectively on Exhibit "A".
POSSESSION
AND LEASE
COMMENCEMENT
2. A. In the event this Lease pertains to a Premises in which the interior
improvements have already been constructed (existing improvements), the
provisions of this subparagraph 2.A. shall apply and the Term Commencement
Date shall be the earlier of the date on which (1) Tenant takes possession
of some or all of the Premises, or (2) Landlord delivers the Premises to
Tenant. If for any reason Landlord cannot deliver possession of the
Premises to Tenant on the Scheduled Term Commencement Date, Landlord shall
not be subject to any liability therefor, nor shall Landlord be in default
hereunder, and Tenant agrees to accept possession of the Premises at such
time as Landlord is able to deliver the same, which date shall then be
deemed the Term Commencement Date. Tenant shall not be liable for any Rent
for any period prior to delivery of the Premises. Tenant acknowledges that
it has inspected and accepts the Premises in their present condition as
suitable for the purpose for which the Premises are leased. Tenant agrees
that said Premises and other improvements are in good and satisfactory
condition as of when possession was taken. Tenant further acknowledges that
no representations as to the condition or repair of the Premises, nor
promises to alter, remodel, or improve the Premises have been made by
Landlord, unless such are expressly set forth in this Lease. Tenant shall,
upon demand, execute and deliver to Landlord a letter of acceptance of
delivery of the Premises.
B. In the event this Lease pertains to a Building to be constructed or
improvements to be constructed within a Building, the provisions of this
subparagraph 2.B. shall apply in lieu of the provisions of subparagraph
2.A. above and the Term Commencement Date shall be the earlier of the date
on which (1) Tenant takes possession of some or all of the Premises, or (2)
the improvements constructed or to be constructed in the Premises shall
have been substantially completed in accordance with the plans and
specifications described on Exhibit "B" attached hereto and incorporated
herein by reference, whether or not substantial completion of the Building
itself shall have occurred. In the event of any dispute as to substantial
completion of work performed or required to be performed by Landlord, the
certificate of Landlord's architect or general contractor shall be
conclusive. Substantial completion shall have occurred notwithstanding a
requirement for Landlord to complete punch list items or similar corrective
work. Tenant shall, upon demand, execute and deliver to Landlord a letter
of acceptance of delivery of the Premises.
TERM
3. The Term of this Lease shall commence on the Term Commencement Date and
continue in full force and effect for the number of months specified as the
Length and Term in the Basic Lease information or until this Lease is
terminated as otherwise provided herein. If the Term Commencement Date is a
date other than the first day of the calendar month, the Term shall be the
number of months of the Length of Term in addition to the remainder of the
calendar month following the Term Commencement Date.
USE
4. A. Tenant shall use the Premises for the Permitted Use and for no other use
or purpose without prior written consent of Landlord. No increase in the
Occupant Density of the Premises shall be made without the prior written
consent of Landlord. Tenant and its employees, customers, visitors, and
licensees shall have the non-exclusive right to use, in common with other
parties occupying the Buildings or Project, the parking areas and driveways
of the Project, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe.
B. Tenant shall not permit any odors, smoke, dust, gas, substances, noise
or vibrations to emanate from the Premises, nor take any action which would
constitute a nuisance or would disturb, obstruct or endanger any other
tenants of the Building or Project in which the Premises are situated or
unreasonably interfere with their use of their respective premises. Tenant
shall not receive, store or otherwise handle any product, material or
merchandise which is toxic, harmful, explosive, highly inflammable or
combustible. Storage outside the Premises of materials, vehicles or any
other items Landlord deems objectionable is prohibited without Landlord's
prior written consent. Tenant shall not use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause or maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer the commission of any waste in,
on or about the Premises. Tenant shall not allow any sale by auction upon
the Premises, or place any loads upon the floors, walls or ceilings which
endanger the structure, or place any harmful liquids in the drainage system
of the Building or Project. No waste, materials or refuse shall be dumped
upon or permitted to remain outside the Premises except in trash containers
placed inside exterior enclosures designated for that purpose by Landlord.
C. Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may
hereafter be canceled or promulgated. Tenant shall at its sole cost and
expense obtain any and all licenses or permits necessary for Tenant's use
of the Premises. Tenant shall promptly comply with the requirements of any
board of fire underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use or occupancy of the
Premises. The judgment of any court of competent jurisdiction or the
admission of Tenant in any actions against Tenant, whether Landlord be a
party thereto or not, that Tenant has so violated any such law, statute,
ordinance, rule, regulation or requirement, shall be conclusive of such
violation as between Landlord and Tenant. Tenant shall not do or permit
anything to be done in, on or about the Premises or bring or keep anything
which will in any way increase the rate of any
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insurance upon the Premises, Building or Project, or upon
any contents therein or cause a cancellation of said
insurance or otherwise affect said insurance in any manner.
Tenant shall indemnify Landlord and hold Landlord harmless
against any loss, expense, damage, attorneys' fees or
liability arising out of the failure of Tenant to comply
with any applicable law or comply with the requirements as
set forth in this Section 4.C.
RULES AND
REGULATIONS 5. Tenant and Tenant's agents, employees, and invitees shall
faithfully observe and comply with any rules and regulations
Landlord may from time to time prescribe in writing for the
purpose of maintaining the proper care, cleanliness, safety,
traffic flow and general order of the Premises or Project.
Landlord shall not be responsible to Tenant for the
non-compliance by any other tenant or occupant of the
Building or Project with any of the rules and regulations.
RENT 6. Tenant shall pay to Landlord, without demand throughout the
term, Rent as specified in the Basic Lease Information,
payable in monthly installments in advance on or before the
first day of each calendar month, in lawful money of the
United States, without deduction or offset whatsoever to
Landlord at the address specified in the Basic Lease
Information or to such other firm or to such other place as
Landlord may from time to time designate in writing. Rent
for the first full month of the Term shall be paid by Tenant
upon Tenant's execution of this Lease. If the obligation for
payment of Rent commences on other than the first day of a
month, then Rent shall be prorated and the prorated
installment shall be paid on the first day of the calendar
month next succeeding the Term Commencement Date.
BASIC
OPERATING
COSTS 7. A. BASIC OPERATING COST. In addition to the Base Rent
required to be paid hereunder, Tenant shall pay as
additional Rent, Tenant's Proportionate Share, as defined in
the Basic Lease Information of Basic Operating Cost in the
manner set forth below. Basic Operating Cost shall mean all
expenses and costs of every kind and nature which Landlord
shall pay or become obligated to pay and actually pays at a
later date because of or in connection with the management,
maintenance, preservation and operation of the Project and
its supporting facilities servicing the Project (determined
in accordance with generally accepted accounting principles,
consistently applied) including, but not limited to, the
following:
(1) All real estate taxes, possessory interest taxes,
business or license taxes or fees, service payment in lieu
of such taxes or fees, annual or periodic license or use
fees, excises, transit charges, housing fund assessments,
open space charge, assessments, levies, fees or charges,
general and special, ordinary and extraordinary, unforeseen
as well as foreseen, of any kind (including fees "in-lieu"
of any such tax or assessment) which are assessed, levied,
charged, confirmed, or imposed by any public authority upon
the Project, its operations or the rent (or any portion or
component thereof), except (a) inheritance or estate taxes
imposed upon or assessed against the Project, or any part
thereof or interest therein, and (b) taxes computed on the
basis of the net income of Landlord or the owner of any
interest therein.
(2) All insurance premiums and costs, including, but
not limited to, any deductible amounts, premiums and cost of
fire, casualty and liability coverage, rental abatement and
special hazard insurance applicable to the Project and
Landlord's personal property used in connection therewith;
provided, however, that Landlord may, but shall not be
obligated to, carry special hazard insurance covering losses
caused by casualty not insured under standard fire and
extended coverage insurance.
(3) Repairs, replacements and general maintenance for
the Premises, Building and Project (except for those repairs
expressly the responsibility of Landlord, those repairs paid
for by proceeds of insurance or by Tenant or other third
parties and alterations attributable solely to tenants of
the Project other than Tenant).
(4) All maintenance, janitorial and service agreements
and costs of supplies and equipment used in maintaining the
Premises, Building and Project and the equipment therein and
the adjacent sidewalks, driveways, parking and service
areas, including, without limitation, alarm service, window
cleaning, elevator maintenance, Building exterior
maintenance and landscaping.
(5) Utilities which benefit all or a portion of the
Premises.
(6) A management and accounting cost recovery equal to
ten percent (10%) of Basic Operating Costs.
Notwithstanding the foregoing, the term Basic Operating Cost
shall not include, and Landlord expressly agrees that Tenant
shall not be charged for, the following items:
(1) Capital improvements made to the Project except
for items which, though capital for accounting purposes, are
properly considered maintenance and repair items, including
without limitation, painting of common areas, replacement of
carpet in elevator lobbies.
(2) Repair, replacements and general maintenance
covered by proceeds of insurance or by Tenant or other third
parties and alterations attributable solely to tenants of
the Project.
(3) Interest, amortization or other payments or loans
to Landlord.
(4) Depreciation of the Buildings or the Project.
(5) Leasing commissions.
(6) Legal expenses, other than those incurred for the
general benefit of the Project's tenants (e.g., tax
disputes).
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(7) Renovating or otherwise improving space for
occupants of the Project or vacant space in the Project.
(8) Federal and state income taxes imposed on or
measured by the income of Landlord from the operation of the
Project.
(9) Fines or costs due to violations of law unless
directly related to Tenant's use of the Premises.
(10) The cost of any work or services performed for any
tenants (including Tenant) at such tenant's cost.
(11) The wages and salaries of any supervisory or
management employee of Landlord not involved in the
operation or maintenance of the Project and wages and
salaries for any personnel above the grade of building
manager.
(12) Costs of space planning, tenant improvements,
marketing expenses and leasing expenses and commissions or
the cost of any repairs, alterations, additions, changes,
replacements and other items which are made for another
tenant's premises or in order to prepare for a tenant's
occupancy or renewal.
(13) Xxxx-ups on electricity in excess of Landlord's
costs and any charges for electricity and other utilities
separately metered to other tenants.
(14) Ground lease rents or charges.
(15) Prepayments (including prepayments of taxes) when
such payments may be and are customarily paid in
installments.
(16) Hazardous waste materials or substance compliance
caused prior to lease execution unless directly related to
Tenant's use of the Premises.
(17) Any costs incurred by Landlord and payable to
subsidiaries or affiliates of Landlord and in excess of the
market rate for the services or materials provided.
(18) Services provided to only some tenants and which
are not standard to the Project or Premises therein without
additional charge therefor.
(19) The cost of repairing or curing defects in other
tenant's tenant improvements.
(20) Any expenses attributable to Landlord or its
agents, employees' or contractors' gross negligence or
intentional wrongful acts or omissions.
(21) The cost of installing, operating and maintaining
any specialty service or improvement, such as a cafeteria,
luncheon or dining facility or recreational club or health
club.
(22) The cost of repair and/or restoration in
accordance with the provisions of the Lease relating to
casualty or condemnation.
(23) Any penalties or interest for late payments on
any such items, including without limitation, taxes,
utilities services and/or assessments.
(24) Costs and expenses for repairs or maintenance
covered by warranties, guarantees or service contracts.
In the event that the Building and/or Project is not fully
occupied during any fiscal year of the Term as determined by
Landlord, an adjustment shall be made in computing the Basic
Operating Cost for such year so that Tenant pays an
equitable portion of all variable items (i.e., component
expenses that are affected by variations in occupancy
levels) of Basic Operating Cost, as reasonably determined
by Landlord; provided, however, that in no event shall
Landlord be entitled to collect in excess of one hundred
percent (100%) of the total Basic Operating Cost from all of
the tenants in the Building or Project, as the case may be.
All costs and expenses shall be determined in accordance
with generally accepted accounting principles which shall be
consistently applied. Basic Operating Cost shall not include
specific costs incurred for the account of, separately
billed to and paid by specific tenants. Notwithstanding
anything herein to the contrary, any instance wherein
Landlord, at Landlord's reasonable discretion, deems Tenant
to be solely responsible for any amounts substantially
greater than its Proportionate Share, Landlord shall have
the right to allocate costs in any manner Landlord deems
reasonably appropriate.
B. PAYMENT OF ESTIMATED BASIC OPERATING COST. "Estimated
Basic Operating Cost" for any particular year shall mean
Landlord's estimate of the Basic Operating Cost for such
fiscal year made prior to commencement of such fiscal year
as hereinafter provided. Landlord shall have the right from
time to time
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to revise its fiscal year and interim accounting periods so
long as the periods as so revised are reconciled with prior
periods in accordance with generally accepted accounting
principles applied in a consistent manner. During the last
month of each fiscal year during the Term, or as soon
thereafter as practicable, Landlord shall give Tenant
written notice of the Estimated Basic Operating Cost for
ensuing fiscal year. Tenant shall pay Tenant's Proportionate
Share of the Estimated Basic Operating Costs with
installments of Base Rent for the fiscal year to which the
Estimated Basic Operating Costs applies in monthly
installments on the first day of each calendar month during
such year, in advance. If at any time during the course of
the fiscal year, Landlord determines that Basic Operating
Cost will apparently vary from the then Estimated Basic
Operating Cost by more than ten percent (10%). Landlord
may, by written notice to Tenant, revise the Estimated Basic
Operating Cost for the balance of such fiscal year and
Tenant shall pay Tenant's Proportionate Share of the
Estimated Basic Operating Cost as so revised for the balance
of the then current fiscal year on the first of each
calendar month thereafter.
C. COMPUTATION OF BASIC OPERATING COST ADJUSTMENT. "Basic
Operating Cost Adjustment" shall mean the difference between
Estimated Basic Operating Cost and Basic Operating Cost for
any fiscal year determined as hereinafter provided. Within
one hundred twenty (120) days after the end of each fiscal
year, as determined by Landlord, or as soon thereafter as
practicable, Landlord shall deliver to Tenant a statement of
Basic Operating Cost for the fiscal year just ended
accompanied by a computation of Basic Operating Cost
Adjustment. If such statement shows that Tenant's payment
based upon Estimated Basic Operating Cost is less than
Tenant's Proportionate Share of Basic Operating Cost, then
Tenant shall pay to Landlord the difference within twenty
(20) days after receipt of such statement. If such statement
shows that Tenant's payments of Estimated Basic Operating
Cost exceed Tenant's Proportionate Share of Basic Operating
Costs, then (provided that Tenant is not in default under
this Lease). Landlord shall pay to Tenant the difference
within twenty (20) days of such statement. If this Lease has
been terminated or the Term hereof has expired prior to the
date of such statement, then the Basic Operating Cost
Adjustment shall be paid by the appropriate party within
twenty (20) days after the date of delivery of the
statement. Should this Lease commence or terminate at any
time other than the first day of the fiscal year, Tenant's
Proportionate Share of the Basic Operating Cost adjustment
shall be prorated by reference to the exact number of
calendar days during such fiscal year for which Tenant is
obligated to pay Base Rent.
D. NET LEASE. This shall be a net Lease and Base Rent shall
be paid to Landlord absolutely not of all costs and expenses
except as herein provided. The provisions for payment of
Basic Operating Cost and the Basic Operating Cost Adjustment
are intended to pass on to tenant and reimburse Landlord for
all costs and expenses of the nature described in Paragraph
7.A. incurred in connection with ownership and operation of
the Building or Project and such additional facilities now
and in subsequent years as may be determined by Landlord to
be necessary to the Building or Project.
E. TENANT AUDIT. Tenant shall have the right, at Tenant's
expense and upon not less than five (5) days prior written
notice to Landlord, to review at reasonable times, in
Landlord's office, Landlord's books and records applicable
to Tenant's Lease for purposes of verifying Landlord's
calculation of the Basic Operating Cost and Basic Operating
Cost Adjustment.
In the event that Tenant shall dispute the amount set forth
in any statement provided by Landlord under Paragraph 7.B.
or 7.C, above, Tenant shall have the right, not later than
twenty (20) days following the receipt of such statement
and upon condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Landlord's
books and records with respect to such fiscal year to be
audited by certified public accountants selected by Tenant
and subject to Landlord's reasonable right of approval. The
Basic Operating Cost Adjustment shall be appropriately
adjusted on the basis of such audit. If such audit
discloses a liability for a refund in excess of ten percent
(10%) of Tenant's Proportionate Share of the Basic
Operating Cost Adjustment previously reported, the cost of
such audit shall be borne by Landlord; otherwise, the cost
of such audit shall be paid by Tenant.
INSURANCE AND
INDEMNIFICATION 8. A. CASUALTY INSURANCE. Landlord agrees to maintain
insurance insuring the Buildings of the Project of which
the Premises are a part against fire, lightning, extended
coverage, vandalism and malicious mischief in an amount not
less than eighty percent (80%) of the replacement cost
thereof. Such insurance shall be for the sole benefit of
Landlord and under its sole control. Landlord shall not be
obligated to insure any furniture, equipment, machinery,
goods or supplies not covered by this Lease which Tenant
may keep or maintain in the Premises or any leasehold
improvements, additions or alterations which Tenant may
make upon the Premises.
B. LIABILITY INSURANCE. Tenant shall purchase at its own
expense and keep in force during this Lease a policy or
policies of comprehensive liability insurance, including
personal injury and property damage, in the amount of not
less than Five Hundred Thousand Dollars ($500,000.00) for
property damage and Two Million Dollars ($2,000,000.00) per
occurrence for personal injuries or deaths of persons
occurring at or about the Premises and Project. Said
policies shall (1) name Landlord and, if applicable, its
agent, and any party holding an interest to which this
Lease may be subordinated as additional insureds, (2) be
issued by an insurance company acceptable to Landlord and
licensed to do business in the State of California, and (3)
provide that said insurance shall not be canceled unless
thirty (30) days prior written notice shall have been given
to Landlord. Sold policy or policies or certificates
thereof shall be delivered to Landlord by Tenant upon
commencement of the Lease and upon each renewal of said
insurance.
C. INDEMNIFICATION. Landlord shall not be liable to Tenant
for any loss or damage to person or property caused by
theft, fire, act of God, acts of a public enemy, riot,
strike, insurrection, war, court order, requisition or
order of governmental body or authority or for any damage
or inconvenience which may arise through repair or
alteration of any part of the Building or Project or
failure to make any such repair except as expressly
otherwise provided by Paragraphs 10 and 12. Each party (the
"Indemnifying Party")
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shall indemnify Landlord and hold harmless the other party
(the "Indemnified Party") from any and all loss, cost,
damage, injury or expense arising out of or related to (1)
claims of injury to or death of persons or damage to
property occurring or resulting directly or indirectly from
the use or occupancy of the Premises or from activities of
the Indemnifying Party its agents servants employers or
anyone in or about the Premises or Project or (2) claims for
work or labor performed or for materials or supplies
furnished to or at the request of the Indemnifying Party or
in connection with performance of any work done for the
account of the Indemnifying Party within the Premises or
Project and (3) claims arising from any breach or default on
the part of the Indemnifying Party in the performance of any
covenant contained in this Lease. Such indemnity shall
include without limitation the obligation to provide all
costs of defense against any such claims including any
action or proceeding brought against the Indemnified Party.
The foregoing indemnity shall not be applicable to claims
arising from the active negligence or willful misconduct of
the Indemnified Party. The provisions of this paragraph
shall survive the expiration or termination of this Lease
with respect to any claims or liability occurring prior to
such expiration or termination.
WAIVER OR
SUBROGATION 9. To the extent permitted by law and without affecting the
coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to
recover against the other (a) damages for injury to or death
of persons, (b) damages to property, (c) damages to the
Premises or any part thereof, or (d) claims arising by
reason of the foregoing. This provision is intended to waive
fully, and for the benefit of each party, any rights and/or
claims which might give rise to a right of subrogation on
any insurance carrier. The coverage obtained by each party
pursuant to this Lease shall include, without limitation, a
waiver of subrogation by the carrier which conforms to the
provisions of this paragraph.
LANDLORD'S
REPAIRS AND
SERVICES 10. Landlord shall at Landlord's expense maintain the structural
soundness of the roof, foundations and exterior walls of the
Building in good repair, reasonable wear and tear excepted.
The term "walls" as used herein shall not include windows,
glass or plate glass, special store fronts or office
entries. The term "roof" as used herein shall not include
skylights, smoke hatches or roof vents. Landlord shall
perform on behalf of Tenant and other tenants of the Project
the maintenance of the public and common areas of the
Project including, but not limited to, the landscaped areas,
parking areas, driveways, the truck staging areas, rail spur
areas, fire sprinkler systems, sanitary and storm sewer
lines, utility services, electric and telephone equipment
servicing the Building(s), exterior lighting, and anything
which affects the operation and exterior appearance of the
Project, which determination shall be at Landlord's sole
discretion. Tenant shall reimburse Landlord for all such
costs in accordance with Paragraph 7. Any damage caused by
or repairs necessitated by any act of Tenant may be
repaired by Landlord at Landlord's option and at Tenant's
expense. Tenant shall immediately give Landlord written
notice of any defect or need of repairs after which Landlord
shall have reasonable opportunity to repair same. Landlord's
liability with respect to any defects, repairs, or
maintenance for which Landlord is responsible under any of
the provisions of this Lease shall be limited to the cost of
such repairs or maintenance.
TENANT'S
REPAIRS 11. Tenant shall, at Tenant's expense, maintain all parts of the
Premises in a good clean and secure condition promptly
making all necessary repairs and replacements including, but
not limited to, all windows, glass, doors and any special
office entries, walls and walls finishes, floor covering,
heating, ventilating and air conditioning systems, truck
doors, dock bumpers, dock plates and levelers, roofing,
plumbing work and fixtures, down spouts, skylights, smoke
hatches and roof vents. Tenant shall at Tenant's expense
also perform necessary pest extermination and regular
removal of trash and debris. If required by the railroad
company, Tenant agrees to sign a joint maintenance agreement
containing items reasonably acceptable to Tenant governing
the use of the rail spur, if any. Tenant shall, at its own
expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning
systems and equipments within or serving the Premises. The
maintenance contractor and the contract must be approved by
Landlord. The service contract must include all services
suggested by the equipment manufacturer within the
operation/maintenance manual, including maintaining the
system and ducts in a weatherproof condition, and must
become effective and a copy thereof delivered to Landlord
within thirty (30) days of the Term Commencement Date.
Tenant shall not damage any demising wall or disturb the
integrity and support provided by any demising wall and
shall, at its sole expense, immediately repair any damage to
any demising wall caused by Tenant or its employees, agents
or invitees.
ALTERATIONS 12. Tenant shall not make, or allow to be made, any alterations
or physical additions in, about or to the Premises without
obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld with respect to
proposed alterations and additions which (a) comply with all
applicable laws, ordinances, rules and regulations, (b) are
in Landlord's opinion compatible with the Project and its
mechanical, plumbing, electrical, and heating/ventilation/
air conditioning systems, and (c) in Landlord's opinion will
not interfere with the use and occupancy of any other
portion of the Building or Project by any other tenant or
its invitees. Specifically, but without limiting the
generality of the foregoing, Landlord shall have the right
of consent for all plans and specifications for the proposed
alterations or additions, construction means and methods,
any contractor or subcontractor to be employed on the work
of alterations or additions, and the time for performance of
such work. Tenant shall also supply to Landlord any
documents and information reasonably requested by Landlord
in connection with its consideration of a request for
approval hereunder. Tenant must have Landlord's written
approval and all appropriate permits and licenses prior to
the commencement of said alterations and additions. All
alterations and additions permitted hereunder shall be made
and performed by Tenant without costs or expense to Landlord
including any costs or expenses which Landlord may incur in
electing to have an outside agency review said plans and
specifications. Landlord shall have the right to require
Tenant to remove any or all alterations, additions,
improvements and partitions made by Tenant and restore the
Premises to their original condition by the termination of
this Lease, by lapse of time or otherwise, all at Tenant's
expense. All such removals and restoration shall be
accomplished in a good workmanlike manner so as not to cause
any damage to the Premises or Project whatsoever. If
Landlord
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so elects, such alterations, physical additions or
improvements shall become the property of Landlord and
surrendered to Landlord upon the termination of this Lease
by lapse of time or otherwise; provided, however, that this
clause shall not apply to trade fixtures or furniture owned
by Tenant. In addition to and wholly apart from its
obligation to pay Tenant's Proportionate Share of Basic
Operating Costs, tenant shall be responsible for and shall
pay prior to delinquency any taxes or governmental service
fees, possessory interest taxes, fees or charges in lieu of
any such taxes, capital levies, or other charges imposed
upon, levied with respect to or assessed against its
personal property, on the value of its alterations,
additions or improvements and on its interest pursuant to
this Lease. To the extent that any such taxes are not
separately assessed or billed to Tenant, Tenant shall pay
the amount thereof as invoiced to Tenant by Landlord.
SIGNS 13. All signs, notices and graphics of every kind or character,
visible in or from public view or corridors, the common
areas or the exterior of the Premises, shall be subject to
Landlord's prior written approval, which Landlord shall have
the right to withhold in its absolute and sole discretion.
Tenant shall not place or maintain any banners whatsoever or
any window decor in or any exterior window or window
fronting upon any common areas or service area or upon any
truck doors or man doors without Landlord's prior written
approval which Landlord shall have the right to grant or
withhold in its absolute and sole discretion. Any
installation of signs or graphics on or about the Premises
and Project shall be subject to any applicable governmental
laws, ordinances, regulations and to any other requirements
imposed by Landlord. Tenant shall remove all such signs and
graphics by the termination of this Lease. Such
installations and removals shall be made in such manner as
to avoid injury to or defacement of the Premises, Building
or Project and any other improvements contained therein, and
Tenant shall repair any injury or defacement including,
without limitation, discoloration caused by such
installation or removal.
INSPECTION/
POSTING
NOTICES 14. After reasonable notice, except in emergencies where no
such notice shall be required, Landlord, its agents and
representatives, shall have the right to enter the Premises
to inspect the same, to clean, to perform such work as may
be permitted or required hereunder, to make repairs or
alterations to the Premises or Project or to other tenant
spaces therein, to deal with emergencies, to post such
notices as may be permitted or required by law to prevent
the perfection of liens against Landlord's interest in the
Project or to exhibit the Premises to prospective tenants,
purchasers, encumbrances or others, or for any other
purpose as Landlord may deem necessary or desirable;
provided, however, that Landlord shall not unreasonably
interfere with Tenant's business operations. Tenant shall
not be entitled to any abatement of Rent by reason of the
exercise of any such right of entry. Six months prior to
the end of the Lease, Landlord shall have the right to
erect on the Premises and/or Project a suitable sign
indicating that the Premises are available for lease.
Tenant shall give written notice to Landlord at least
thirty (30) days prior to vacating the premises and shall
meet with Landlord for a joint inspection of the Premises
at the time of vacating. In the event of Tenant's failure
to give such notice or participate in such joint
inspection, Landlord's inspection at or after Tenant's
vacating the Premises shall conclusively be deemed correct
for purposes of determining Tenant's responsibility for
repairs and restoration.
UTILITIES 15. Tenant shall pay for all water, gas, heat, air conditioning,
light, power, telephone, sewer, sprinkler charges and other
utilities and services used on or from the Premises,
together with any taxes, penalties, surcharges or the like
pertaining thereto, and maintenance charges for utilities
and shall furnish all electric light bulbs, ballasts and
tubes. If any such services are not separately metered to
Tenant, Tenant shall pay a reasonable proportion, as
determined by Landlord, of all charges jointly serving other
premises. Landlord shall not be liable for any damages
directly or indirectly resulting from nor shall the Rent or
any monies owed Landlord under this Lease herein reserved be
abated by reason of (a) the installation, use or
interruption of use of any equipment used in connection with
the furnishing of any of the foregoing utilities and
services, (b) failure to furnish or delay in furnishing any
such utilities or services when such failure or delay is
caused by acts of God or the elements, labor disturbances of
any character, any other accidents or other conditions
beyond the reasonable control of Landlord, or (c) the
limitation, curtailment, rationing or restriction on use of
water, electricity, gas or any other form of energy or any
other service or utility whatsoever servicing the Premises
or Project. Landlord shall be entitled to cooperate
voluntarily and in a reasonable manner in the efforts of
national, state or local governmental agencies or utility
suppliers in reducing energy or other resource consumption.
The obligation to make services available hereunder shall be
subject to the limitations of any such voluntary, reasonable
program.
SUBORDINATION 16. Subject to the Tenant executing a satisfactory
substitution, non-disturbance and attornment agreement with
the relevant parties, this Lease shall be subject and
subordinate at all times to (a) all ground leases or
underlying leases which may now exist or hereafter be
executed affecting the Premises and/or the land upon which
the Premises and Project are situated, or both, and (b) any
mortgage or deed of trust which may now exist or be placed
upon said Project, land, ground leases or underlying
leases, or Landlord's interest or estate in any of said
items, which is specified as security. Notwithstanding the
foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or
underlying leases or any such liens to this Lease. In the
event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such
successor in interest.
FINANCIAL
STATEMENTS 17. At the request of Landlord, Tenant shall provide to
Landlord its current financial statements or other
information discussing financial worth which Landlord shall
use solely for purposes of this Lease and in connection
with the ownership, management and disposition of the
property subject hereto.
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ESTOPPEL
CERTIFICATES 18. Tenant agrees from time to time within ten (10) days
after request of Landlord, to deliver to Landlord, or
Landlord's designee, an estoppel certificate stating
that this Lease is in full force and effect provided
that it is indeed the case, the date to which Rent has
been paid, the unexpired portion of this Lease and such
other matters pertaining to this Lease as may be
reasonably requested by Landlord. Failure by Tenant to
execute and deliver such certificate shall constitute
an acceptance of the Premises and acknowledgment by
Tenant that the statements included are true and
correct without exception. Landlord and Tenant intend
that any statement delivered pursuant to this paragraph
may be relied upon by any mortgagee, beneficiary,
purchaser or prospective purchaser of the Project or
any interest therein. The parties agree that Tenant's
obligation to furnish such estoppel certificates in a
timely fashion is a material inducement for Landlord's
execution of the Lease.
SECURITY
DEPOSIT 19. Tenant agrees to deposit with Landlord upon execution
of this Lease, a Security Deposit as stated in the
Basic Lease Information which sum shall be held by
Landlord, without obligation for interest, as security
for the performance of Tenant's covenants and
obligations under this Lease, it being expressly
understood and agreed that such deposit is not an
advance rental deposit or a measure of damages incurred
by Landlord in case of Tenant's default. Upon the
occurrence of any event of default by Tenant, Landlord
may, from time to time, without prejudice to any other
remedy provided herein or provided by law, use such
fund to the extent necessary to make good any arrears
of Rent or other payments due to Landlord hereunder,
and any other damage, injury, expense or liability
caused by such event of default, and Tenant shall pay
to Landlord, on demand, the amount so applied in order
to restore the Security Deposit to its original amount.
Any remaining balance of such deposit shall be returned
by Landlord to Tenant at such time after termination of
this Lease that all of the Tenant's obligations under
this Lease have been fulfilled.
TENANT'S
REMEDIES 20. Tenant shall look solely to Landlord's interest in the
Project for recovery of any judgment from Landlord.
Landlord, or if Landlord is a partnership, its partners
whether general or limited, or if it is a corporation,
its directors, officers or shareholders, shall never be
personally liable for any such judgment. Any lien
obtained to enforce any such judgment and any levy of
execution thereon shall be subject and subordinate to
any lien, mortgage or deed of trust on the Project.
ASSIGNMENT
AND
SUBLETTING 21. A. Tenant shall not assign or sublet the Premises or
any part thereof without Landlord's prior written
approval except as provided herein. If Tenant desires
to assign this Lease or sublet any or all of the
Premises, Tenant shall give Landlord written notice
ninety (90) days prior to the anticipated effective
date of the assignment or sublease. Landlord shall then
have a period of thirty (30) days following receipt of
such notice to notify Tenant in writing that Landlord
elects either (1) to terminate this Lease as to the
space so affected as of the date so requested by Tenant
provided Tenant agrees, or (2) to permit Tenant to
assign this Lease or sublet such space, subject,
however, to Landlord's prior written approval of the
proposed assignee or subtenant and of any related
documents or agreements associated with the assignment
or sublease, such consent not to be unreasonably
withheld so long as the use of the Premises by such
proposed assignee or subtenant would be a Permitted Use
and would not in Landlord's opinion increase Occupant
Density of the Project, the proposed assignee or
subtenant is of sound financial condition, and the
proposed assignment or sublease would not be likely to
result in any decrease in Rent. If Landlord should fail
to notify Tenant in writing of such election within
said period, Landlord shall be deemed to have waived
option (1) above, but written approval by Landlord of
the proposed assignee or subtenant shall be required.
Failure by Landlord to approve a proposed assignee or
subtenant shall not cause a termination of this Lease.
B. Any Rent or other consideration realized by Tenant
under any such sublease or assignment in excess of the
Rent payable hereunder, after amortization of (1) the
reasonable cost of any improvements which Tenant has
made for the purpose of assigning or subletting all or
part of the Premises and (2) reasonable subletting and
assignment costs, shall be divided and paid, ten
percent (10%) to Tenant, ninety percent (90%) to
Landlord.
C. In any subletting or assignment undertaken by
Tenant, Tenant shall diligently seek to obtain the
maximum rental amount available in the marketplace for
such subletting or assignment.
D. If Tenant is a corporation, a transfer of corporate
shares by sale, assignment, bequest, inheritance,
operation of law or other disposition (including such a
transfer to or by a receiver or trustee in federal or
state bankruptcy, insolvency or other proceedings), so
as to result in a change in the present control of such
corporation or any of its parent corporations by the
person or persons owning a majority of said corporate
shares, shall constitute an assignment for purposes of
this paragraph.
E. If Tenant is a partnership, joint venture or other
unincorporated business form, a transfer of the
interest of persons, firms or entities responsible for
managerial control of Tenant by sale, assignment,
bequest, inheritance, or operation of law or other
disposition, so as to result in the present control of
said entity and/or a change in the identity of the
persons responsible for the general credit obligations
of said entity shall constitute an assignment for all
purposes of this paragraph.
F. No assignment or subletting by Tenant shall relieve
Tenant of any obligations under this Lease. Any
assignment or subletting which conflicts with the
provisions hereof shall be void.
QUIET
ENJOYMENT 22. Landlord represents that it has full right and
authority to enter into this Lease and that Tenant,
upon paying the Rent and performing its other covenants
and agreements herein set forth, shall peaceably and
quietly
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have, hold and enjoy the Premises for the Term hereof without
hindrance or molestation from Landlord, subject to the terms
and provisions of this Lease.
CONDEMNATION 23. A. If the whole, or any substantial portion of the Project
of which the Premises are a part, should be taken or
condemned for any public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, and the taking would
prevent or materially interfere with the Permitted Use of the
Premises, this Lease shall terminate and the Rent shall be
abated during the unexpired portion of this lease, effective
when the physical taking of said Premises shall have occurred.
B. If a portion of the Project of which the Premises are a
part should be taken or condemned for any public use under
any governmental law, ordinance, or regulation, or by right
of eminent domain, or by private purchase in lieu thereof,
and this Lease is not terminated as provided in subparagraph
23.A. above, this Lease shall not terminate, but the Rent
payable hereunder during the unexpired portion of the Lease
shall be reduced to such extent as may be fair and reasonable
under all of the circumstances.
C. Landlord shall be entitled to any and all payment,
income, rent, award, or any interest therein whatsoever which
may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired portion of this
Lease. Notwithstanding the foregoing paragraph, any
compensation specifically awarded Tenant for loss of
business, Tenant's personal property, moving cost or loss of
goodwill, shall be and remain the property of Tenant.
CASUALTY
DAMAGE 24. A. If the Premises should be damaged or destroyed by fire,
tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord. Within thirty (30) days
of such notice, Landlord shall notify Tenant whether in
Landlord's opinion such repairs can be made either (1) within
ninety (90) days, (2) in more than ninety (90) days, but in
less than one hundred eighty (180) days, or (3) in more than
one hundred eighty (180) days from the date of such notice;
Landlord's determination shall be binding on Tenant.
B. If the Premises should be damaged by fire, tornado or
other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed within
ninety (90) days after the date upon which Landlord's is
notified by Tenant of such damage, this Lease shall not
terminate, and Landlord shall as its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and
repair the Premises to substantially the condition in which
they existed prior to such damage, except that Landlord shall
not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements which
may have been placed in, on or about the Premises by Tenant.
If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the
period in which they are untenantable shall be reduced to
such extent as may be fair and reasonable under all of the
circumstances.
C. If the Premises should be damaged by fire, tornado or
other casualty, but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed in more than
ninety (90) days but in less than one hundred eighty (180)
days, then Landlord shall have the option of either (1)
terminating the Lease effective upon the date of the
occurrence of such damage, in which event the Rent shall be
abated during the unexpired portion of the Lease, or (2)
electing to rebuild or repair the Premises to substantially
the condition in which they existed prior to such damage
except that Landlord shall not be required to rebuild, repair
or replace any part of the partitions, fixtures, additions and
other improvements which may have been placed in, on or about
the Premises by Tenant. If the Premises are untenantable in
whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable
shall be reduced to such extent as may be fair and reasonable
under all of the circumstances. In the event that Landlord
should fail to complete such repairs and rebuilding within one
hundred eighty (180) days after the date upon which Landlord
is notified by Tenant of such damage, such period of time to
be extended for delays caused by the fault or neglect of
Tenant or because of acts of God, acts of public agencies,
labor disputes, strikes, fires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or
fuels, or delay of the contractors or subcontractors due to
such causes or other contingencies beyond the reasonable
control of Landlord, Tenant may at its option terminate this
Lease by delivering thirty (30) days prior written notice of
termination to Landlord as Tenant's exclusive remedy,
whereupon all rights and obligations hereunder shall cease and
terminate.
D. If the Premises should be so damaged by fire, tornado, or
other casualty that rebuilding or repairs cannot in
Landlord's estimation be completed within one hundred eighty
(180) days after the date upon which Landlord is notified by
Tenant of such damage, this Lease shall terminate and the
Rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such
damage.
E. Notwithstanding anything herein to the contrary, in the
event that holder of any indebtedness secured by a mortgage
or deed of trust covering the Premises requires that the
insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such
holder, whereupon all rights and obligations hereunder shall
cease and terminate.
F. The provision of Section 1942, Subdivision 2, and Section
1933, Subdivision 4, of the Civil Code of California is
superseded by the foregoing.
HOLDING OVER 25. If Tenant shall retain possession of the Premises or any
portion thereof without Landlord's consent following the
expiration of the Lease or sooner termination for any reason,
then Tenant shall pay to Landlord for each day of such
retention triple the amount of the daily rental for the first
month prior to the date of expiration or termination. Tenant
shall also indemnify and hold Landlord harmless from any loss
or liability resulting from delay be Tenant in surrendering
the Premises, including, without limitation, any claims made
by any succeeding tenant founded on such delay.
Alternatively, if Landlord gives notice of Landlord's consent
to Tenant's holding over, such holding over shall constitute
renewal of the Lease on whatever terms are specified in such
notice. Acceptance of Rent by Landlord following expiration
or termination shall not
Page 10
14
constitute a renewal of this Lease, and nothing contained in
this paragraph shall waive Landlord's right of reentry or any
other right. Unless Landlord exercises the option hereby given
to it, Tenant shall be only a tenant at sufferance, whether or
not Landlord accepts any Rent from Tenant while Tenant is
holding over without Landlord's written consent. Additionally,
in the event that upon termination of the Lease, Tenant has not
fulfilled its obligation with respect to repairs and cleanup of
the Premises or any other Tenant obligations as set forth in
this Lease, then Landlord shall have the right to perform any
such obligations as it deems necessary at Tenant's sole cost and
expense, and any time required by Landlord to complete such
obligations shall be considered a period of holding over and the
terms of this paragraph shall apply.
DEFAULT 26. A. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an event of default on the part of Tenant:
(1) ABANDONMENT. Vacation or abandonment of the Premises
for a continuous period in excess of five (5) days. Tenant
waives any right of notice Tenant may have under section 1951.3
of the Civil Code of the State of California, the terms of this
subparagraph 26A being deemed such notice to Tenant as required
by said Section 1951.3.
(2) NONPAYMENT OF RENT. Failure to pay any installment of
Rent or any other amount due and payable hereunder upon the date
when said payment is due, such failure continuing without cure
by payment of the delinquent Rent and late charge or other
obligations for a period of five (5) days after written notice
and demand; provided, however, that except as expressly
otherwise provided herein, Landlord shall not be required to
provide such notice more than twice during the Term, the third
such non-payment constituting default for all purposes hereof
without requirements of notice.
(3) OTHER OBLIGATIONS. Failure to perform any material
obligations, agreement or covenant under this Lease other than
those matters specified in subparagraphs (1) and (2) of this
subparagraph 26A, such failure continuing for fifteen (15) days
after written notice of such failure, or such longer period as
Landlord determines to be necessary to remedy such default,
provided that Tenant shall continuously and diligently pursue
such remedy at all times until such default is cured.
(4) GENERAL ASSIGNMENT. A general assignment by Tenant for
the benefit of creditors.
(5) BANKRUPTCY. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary petition
by Tenant's creditors, which involuntary petition remains
undischarged for a period of thirty (30) days. In the event that
under applicable law, the trustee in bankruptcy or Tenant has
the right to affirm this Lease and continue to perform the
obligation of Tenant hereunder, such trustee or Tenant shall,
in such time period as may be permitted by the bankruptcy court
having jurisdiction, cure all defaults of Tenant hereunder
outstanding as of the date of the affirmance of this Lease and
provide to Landlord such adequate assurances as may be necessary
to ensure Landlord of the continued performance of Tenant's
obligations under this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take
possession of substantially all of Tenant's assets of the
Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of ten (10) days after
the levy thereof.
(7) ATTACHMENT. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets of the
Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of ten (10) days after
the levy thereof.
B. REMEDIES UPON DEFAULT.
(1) RENT. All failures to pay any monetary obligation to be
paid by Tenant under this Lease shall be construed as
obligations for payment of Rent.
(2) TERMINATION. In the event of the occurrence of any event
of default, Landlord shall have the right, with or without notice
or demand, to immediately terminate this Lease, and at any time
thereafter recover possession of the Premises or any part thereof
and expel and remove therefrom Tenant and any other person
occupying the same, by any lawful means, and again repossess and
enjoy the Premises without prejudice to any of the remedies that
Landlord may have under this Lease, or at law or equity by reason
of Tenant's default or of such termination.
(3) CONTINUATION AFTER DEFAULT. Even though Tenant has
breached this Lease and/or abandoned the Premises, this Lease
shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession under Paragraph 26.B.(2)
hereof, and Landlord may enforce all its rights and remedies
under this Lease, including, but without limitation, the right to
recover Rent as it becomes due, and Landlord, without terminating
this Lease, may exercise all of the rights and remedies of a
Landlord under Section 1951.4 of the Civil Code of the State of
California or any successor code section. Acts of maintenance
preservation or efforts to lease the Premises or the appointment
of a receiver upon application of Landlord to protect Landlord's
interest under this Lease shall not constitute an election to
terminate Tenant's right to possession.
C. DAMAGES UPON TERMINATION. Should Landlord terminate this
Lease pursuant to the provisions of Paragraph 26.B.(2) hereof,
Landlord shall have all the rights and remedies of a Landlord
provided by Section 1951.2 of the Civil Code of the State of
California, or successor code sections. Upon such termination,
in addition to any other rights and remedies to which Landlord
may be entitled under applicable law, Landlord shall be entitled
to recover from Tenant: (1) the worth at the time of award of
the unpaid Rent and other amounts which had been earned at the
time of termination, (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 Rent loss that the Tenant proves could have been reasonably
avoided, (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
Page 11
15
exceeds the amount of such Rent loss that the Tenant proves
could be reasonably avoided, and (4) any other amount
necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its
obligations under the lease or which, in the ordinary course
of things, would be likely to result therefrom. The "worth
at the time of award" of the amount referred to in (1) and
(2) above shall be computed with interest at the maximum
rate allowed by law. The "worth at the time of award" of the
amount referred to in (3) above shall be computed by
discounting such amount at the Federal Discount Rate of the
Federal Reserve Bank of San Francisco at the time of the
award plus one percent (1%).
D. LATE CHARGE. In addition to its other remedies,
Landlord shall have the right without notice or demand to
add to the amount of any payment required to be made by
Tenant hereunder, and which is not paid on or before the
date the same is due, an amount equal to five percent (5%)
of the delinquency for each month or portion thereof that
the delinquency remains outstanding to compensate Landlord
for the loss of the use of the amount not paid and the
administrative costs caused by the delinquency, the parties
agreeing that Landlord's damage by virtue of such
delinquencies would be difficult to compute and the amount
stated herein represents a reasonable estimate thereof.
E. REMEDIES CUMULATIVE. All rights, privileges and
elections or remedies of the parties are cumulative and not
alternative to the extent permitted by law and except as
otherwise provided herein.
F. NOTHING CONTAINED HEREIN SHALL EFFECT LANDLORD'S
OBLIGATIONS TO MITIGATE ITS DAMAGES.
LIENS 27. Tenant shall keep the premises free from liens arising
out of or related to work performed, materials or supplies
furnished or obligations incurred by Tenant or in
connection with work made, suffered or done by Tenant in or
on the Premises or Project. In the event that Tenant shall
not, within ten (10) days following the imposition of any
such lien, cause the same to be released of record by
payment or posting of a proper bond, Landlord shall have,
in addition to all other remedies provided herein and by
law, the right, but not the obligation, to cause the same
to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien.
All sums paid by Landlord on behalf of Tenant and all
expenses incurred by Landlord in connection therefore shall
be payable to Landlord by Tenant on demand with interest at
the maximum rate allowable by law. Landlord shall have the
right at all times to post and keep posted on the Premises
any notices permitted or required by law, or which Landlord
shall deem proper, for the protection of Landlord, the
Premises, the Project and any other party having an
interest herein, from mechanics' and materialmen's liens,
and Tenant shall give Landlord not less than ten (10)
business days prior written notice of the commencement of
any work in the Premises or Project which could lawfully
give rise to a claim for mechanics' or materialmen's lien.
SUBSTITUTION 28. SUBJECT TO TENANT'S PRIOR WRITTEN CONSENT, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD, at any time after
execution of this Lease, Landlord may substitute for the
Premises other premises in the Project (the "New Premises")
upon not less than sixty (60) days prior written notice. In
which event the New Premises shall be deemed to be the
Premises for all purposes hereunder; provided however, that:
(a) The area of the Premises is less than twenty-five
(25%) of the area of the Project;
(b) The New Premises shall be similar in area and in
appropriateness for Tenant's purposes;
(c) Any such substitution is effected for the purpose
of accommodating a Tenant who will occupy all or a
substantial portion of the Project area; and
(d) If Tenant is occupying the Premises at the time
of such substitution, Landlord shall pay the expense of
physically moving Tenant, its property and equipment to the
New Premises and shall, at its sole cost, improve the New
Premises with improvements substantially similar to those
Landlord has committed to provide or has provided in the
premises.
TRANSFERS BY
LANDLORD 29. In the event of a sale or conveyance by Landlord of the
Project, the same shall operate to release Landlord from
any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor
of Tenant, and in such event Tenant agrees to look solely
to the responsibility of the successor in interests of
Landlord in and to this Lease. This Lease shall not be
affected by any such sale and Tenant agrees to attorn to
the purchaser or assignee.
RIGHT OF
LANDLORD TO
PERFORM
TENANT'S
COVENANTS 30. All covenants and agreements to be performed by Tenant
under any of the terms of this Lease shall be performed by
Tenant, at Tenant's sole cost and expense, and without any
abatement of Rent. If Tenant shall fail to pay any sum of
money other than Rent, required to be paid by it hereunder,
or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for
five (5) days after notice thereof by Landlord, Landlord
may, but shall not be obligated to do so, and without
waiving or releasing Tenant from any obligations of the
Tenant, make any such payment or perform any such act on
the Tenant's part to be made or performed. All sums so paid
by Landlord and all necessary incidental costs together
with interest thereon at the maximum rate permitted by law
from the date of such payment by the Landlord shall be
payable to Landlord on demand, and Tenant covenants to pay
such sums, and Landlord shall have, in addition to any
other right or remedy of Landlord, the same right and
remedies in the event of the nonpayment thereof by tenant
as in the case of default by Tenant in the payment of Rent.
WAIVER 31. If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such
waiver shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition
contained herein. The acceptance of rent by Landlord shall
not constitute a
Page 12
16
waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or to
decrease the right of Landlord to insist thereafter upon
strict performance by Tenant. Waiver of Landlord of any
term, covenant or condition contained in this Lease may only
be made by a written document signed by Landlord.
NOTICES 32. Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and other
requirements with reference to the sending, mailing or
delivery of any notice or the making of any payment by
Landlord or Tenant to the other shall be deemed to be
complied with when and if the following steps are taken:
A. All Rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at
the address set forth in the Basic Lease Information, or at
such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Tenant's
obligation to pay Rent and any other amounts to Landlord
under the terms of this Lease shall not be deemed satisfied
until such Rent and other amounts have been actually
received by Landlord.
B. All notices, demands, consents and approvals which may
or are required to be given by either party to the other
hereunder shall be in writing and shall be deemed to have
been fully given when deposited in the United States mail,
certified or registered, postage prepaid, and addressed to
the party to be notified at the address for such party
specified in the Basic Lease Information or to such other
place as the party to be notified may from time to time
designate by at least fifteen (15) days notice to the
notifying party. Tenant appoints as its agent to receive the
service of all default notices and notice of commencement of
unlawful detainer proceedings the person in charge of or
apparently in charge of or occupying the Premises at the
time, and, if there is no such person, then such service may
be made by attaching the same on the main entrance of the
Premises.
ATTORNEYS'
FEES 33. In the event either party places the enforcement of this
Lease, or any part thereof, or the collection of any Rent
due, or to become due hereunder, or recovery of the
possession of the Premises in the hands of an attorney or
files suit upon the same, the prevailing party shall recover
its reasonable attorneys' fees and court costs.
SUCCESSORS
AND ASSIGNS 34. This Lease shall be binding upon and inure to the benefit of
Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its successors, and
to the extent assignment may be approved by Landlord
hereunder, Tenant's assigns.
FORCE MAJEURE 35. Whenever a period of time is herein prescribed for action to
be taken by either party, that Party shall not be liable or
responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to
strike, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the
control of that party.
MISCELLANEOUS 36. A. The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the
singular or plural number, individuals, firms or
corporations, and their and each of their respective
successors, executors, administrators and permitted assigns,
according to the context hereof.
B. Time is of the essence regarding this Lease and all of
its provisions.
C. This Lease shall in all respects be governed by the
laws of the State of California.
D. This Lease, together with its exhibits, contains all
the agreements of the parties hereto and supersedes any
previous negotiations.
E. There have been no representations made by the Landlord
or understandings made between the parties other than those
set forth in this Lease and its exhibits.
F. This Lease may not be modified except by a written
Instrument by the parties hereto.
G. If, for any reason whatsoever, any of the provisions
hereof shall be unenforceable or ineffective, all of the
other provisions shall be and remain in full force and
effect.
ADDITIONAL
PROVISIONS 37. A. Lease Effective Date. Submission of this instrument for
examination or signature by Tenant does not constitute a
reservation or option for lease, and it is not effective as
a lease or otherwise until execution by Landlord and Tenant.
B. Notwithstanding anything herein to the contrary, Tenant
shall only be responsible for that portion of a release,
spill or discharge of toxic and/or hazardous substances,
materials, gases, waste or contamination caused by Tenant.
Under no circumstances shall Tenant be liable for any toxic
and/or hazardous substances, materials, gases, waste or
contamination released, spilled, discharged or located in,
on, under or about the Premises prior to or after Tenant's
occupancy. In no event shall Tenant be liable for any
releases, spills or discharges of toxic and/or hazardous
substances, materials, gases, waste or contamination in
compliance with applicable law.
Page 13
17
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Lease
this 22 day of Aug, 1997.
"LANDLORD"
XXXXXXX PROPERTIES, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Xxxxxxx Properties, Inc.
a Maryland Corporation
Its General Partner
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President
"TENANT"
SCHLUMBERGER INDUSTRIES, INC.,
A DELAWARE CORPORATION
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Its: National Sales Manager
-------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
-----------------------------
Date: 7/8/97
----------------------------------
Page 14
00
Xxx Xxxxxx Xxxxxxxx Xxxx
[MAP]
EXHIBIT "A"
19
EXHIBIT
ENVIRONMENTAL QUESTIONNAIRE AND DISCLOSURE STATEMENT
The purpose of this form is to obtain information regarding the use of
hazardous substances on the premises. Prospective tenants should answer the
questions in light of their proposed operations on the premises. Existing
tenants should answer the questions as they relate to on-going operations on the
premises and should update any information previously submitted. If additional
space is needed to answer the questions, you may attach separate sheets of paper
to this form.
Your cooperation in this matter is appreciated. Any questions should be
directed to, and when completed, the form should be mailed to:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Attn:
-----------------------------------------------------------------
Phone: ( )
-----------------------------
1. GENERAL INFORMATION
Name of Responding Company:
-------------------------------------------------
Check the Applicable Status:
Prospective Tenant [ ] Existing Tenant [ ]
Mailing Address:
------------------------------------------------------------
----------------------------------------------------------------------------
Contact Person and Title:
---------------------------------------------------
Telephone Number: ( ) -
----------- -------------
Address of Leased Premises:
-------------------------------------------------
Length of Lease Term:
-------------------------------------------------------
Describe the proposed operations to take place on the property, including
principal products manufactured or services to be conducted. Existing
tenants should describe any proposed changes to on-going operations.
----------------------------------------------------------------------------
----------------------------------------------------------------------------
2. STORAGE OF HAZARDOUS MATERIALS
2.1 Will any hazardous materials be used or stored on-site?
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
2.2 Attach the list of any hazardous materials to be used or stored, the
quantities that will be on-site at any given time, and the location and
method of storage (e.g., 55 gallon drums on concrete pad).
3. STORAGE TANKS & SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, or other
hazardous substances in tanks or sumps proposed or currently conducted
on the premises?
Yes [ ] No [ ]
If yes, describe the materials to be stored, and the type, size and
construction of the sump or tank. Attach copies of any permits obtained
for the storage of such substances.
------------------------------------------------------------------------
------------------------------------------------------------------------
3.2 Have any of the tanks or sumps been inspected or tested for leakage?
Yes [ ] No [ ]
If so, attach the results.
3.3 Have any spills or leaks occurred from such tanks or sumps?
Yes [ ] No [ ]
If so, describe.
------------------------------------------------------------------------
------------------------------------------------------------------------
3.4 Were any regulatory agencies notified of the spill or leak?
Yes [ ] No [ ]
If so, attach copies of any spill reports filed, any clearance letters
or other correspondence from regulatory agencies relating to the spill
or leak.
3.5 Have any underground storage tanks or sumps been taken out of service or
removed?
Yes [ ] No [ ]
If yes, attach copies of any closure permits and clearance obtained from
regulatory agencies relating to closure and removal of such tanks.
20
4. SPILLS
4.1 During the past year, have any spills occurred on the premises?
Yes [ ] No [ ]
Is so, please describe the spill and attach the results of any
testing conducted to determine the extent of such spills.
4.2 Were any agencies notified in connection with such spills?
Yes [ ] No [ ]
Is so, attach copies of any spill reports or other correspondence
with regulatory agencies.
4.3 Were any clean-up actions undertaken in connection with the spills?
Yes [ ] No [ ]
Is so, briefly describe the actions taken. Attach copies of any
clearance letters obtained from any regulatory agencies involved and
the results of any final soil or groundwater sampling done upon
completion of the clean-up work.
---------------------------------------------------------------------
---------------------------------------------------------------------
5. WASTE MANAGEMENT
5.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number?
Yes [ ] No [ ]
5.2 Has your company filed a biennial report as a hazardous waste
generator?
Yes [ ] No [ ]
If so, attach a copy of the most recent report filed.
5.3 Attach the list of the hazardous waste, if any, generated or to be
generated at the premises, its hazard class and the quantity generated
on a monthly basis.
5.4 Describe the method(s) of disposal for each waste. Indicate where and
how often disposal will take place.
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
5.5 Indicate the name of the person(s) responsible for maintaining copies
of hazardous waste manifests completed for off-site shipments of
hazardous waste.
---------------------------------------------------------------------
5.6 Is any treatment or processing of hazardous wastes currently
conducted or proposed to be conducted at the premises:
Yes [ ] No [ ]
Is yes, please describe any existing or proposed treatment methods.
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
5.7 Attach copies of any hazardous waste permits or licenses issued to
your company with respect to its operations on the premises.
3. WASTEWATER TREATMENT/DISCHARGE
6.1 Is your discharge wastewater to:
______ storm drain? ______ sewer?
______ surface water? ______ no industrial discharge
6.2 Is your wastewater treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment conducted.
---------------------------------------------------------------------
6.3 Attach copies of any wastewater discharge permits issued to your
company with respect to its operations on the premises.
7. ALL DISCHARGES
7.1 Do you have any air filtration systems or stacks that discharge into
the air?
Yes [ ] No [ ]
2
21
7.2 Do you operate any of the following types of equipment, or any other
equipment requiring an air emissions permit?
______ Spray booth
______ Dip tank
______ Drying oven
______ Incinerator
______ Other (Please Describe)
______ No Equipment Requiring Air Permits
7.3 Are air emissions from your operations monitored?
Yes / / No / /
If so, indicate the frequency of monitoring and a description of the
monitoring results.
______________________________________________________________________
7.4 Attach copies of any air emissions permits pertaining to your
operations on the premises.
8. HAZARDOUS MATERIALS DISCLOSURES
8.1 Does your company handle hazardous materials in a quantity equal to
or exceeding an aggregate of 500 pounds, 55 gallons, or 200 cubic
feet?
Yes / / No / /
8.2 Has your company prepared a hazardous materials management plan
("business plan") pursuant to Orange County Fire Department
requirements?
Yes / / No / /
If so, attach a copy of the business plan.
8.3 Are any of the chemicals used in your operations registered under
Proposition 65?
Yes / / No / /
If so, describe the actions taken, or proposed actions to be taken, to
comply with Proposition 65 requirements.
______________________________________________________________________
8.4 Describe the procedures as followed to comply with OSHA Hazard
Communication Standard requirements.
______________________________________________________________________
9. ENFORCEMENT ACTIONS, COMPLAINTS
9.1 Has your company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees?
Yes / / No / /
If so, describe the actions and any continuing compliance obligations
imposed as a result of these actions.
9.2 Has your company ever received requests for information, notice or
demand letters, or any other inquiries regarding its operations?
Yes / / No / /
9.3 Have there ever been, or are there now pending, any lawsuits against
the company regarding any environmental or health and safety concerns?
Yes / / No / /
9.4 Has any environmental audit ever been conducted at your company's
current facility?
Yes / / No / /
If so, discuss the results of the audit.
______________________________________________________________________
9.5 Have there been any problems or complaints from neighbors at the
company's current facility?
Yes / / No / /
___________________________________
Company
By:________________________________
Title:__________________
Date:__________________
3
