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EXHIBIT 10.3.2
SUBLEASE
[CB COMMERCIAL REAL ESTATE GROUP, INC. LOGO]
1. PARTIES.
This Sublease, dated June 12, 1998, is made between Schlumberger Resource
Management Services, Inc. a Delaware Corporation ("Sublessor"), and
Cholestech Corporation, a California Corporation ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated June 24, 1997, wherein
Xxxxxxx Properties, L.P., a California LTD, Partnership ("Lessor") leased
to Sublessor the real property located in the City of Hayward, County of
Alameda, State of California, described as an approximately 5,800 sq. ft.
office and warehouse space located at 00000 Xxxx Xxxxxxx Xxxx and an
approximately 900 sq. ft. of storage space located in Building B totalling
approximately 6,700 sq. ft. ("Master Premises"). Said lease has been
amended by the following amendments:
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said lease and amendments are herein collectively referred as the "Master
Lease" and are attached hereto as Exhibit "A."
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): as described above.
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease has
not been amended or modified except as expressly set forth herein, that
Sublessor is not now, and as of the commencement of the Term hereof will
not be, in default or breach of any of the provisions of the Master Lease,
and that Sublessor has no knowledge of any claim by Lessor that Sublessor
is in default or breach of any of the provisions of the Master Lease.
5. TERM.
The Term of this Sublease shall commence on August 1, 1998 ("Commencement
Date"), or when Lessor consents to this Sublease (if such consent is
required under the Master Lease), whichever shall last occur, and end on
June 30, 2000 ("Termination Date"), unless otherwise sooner terminated in
accordance with the provisions of this Sublease. In the event the Term
commences on a date other than the Commencement Date, Sublessor and
Sublessee shall execute a memorandum setting forth the actual date of
commencement of the Term. Possession of the Premises ("Possession") shall
be delivered to Sublessee on the commencement of the Term. If for any
reason Sublessor does not deliver Possession to Sublessee on the
commencement of the Term, Sublessor shall not be subject to any liability
for such failure, the Termination Date shall not be extended by the delay,
and the validity of this Sublease shall not be impaired, but rent shall
xxxxx until delivery of Possession. Notwithstanding the foregoing, if
Sublessor has not delivered Possession to Sublessee within thirty (30) days
after the Commencement Date, then at any time thereafter and before
delivery of Possession, Sublessee may give written notice to Sublessor of
Sublessee's intention to cancel this Sublease. Said notice shall set forth
an effective date for such cancellation which shall be at least ten (10)
days after delivery of said notice to Sublessor. If Sublessor delivers
Possession to Sublessee on or before such effective date, this Sublease
shall remain in full force and effect. If Sublessor fails to deliver
Possession to Sublessee on or before such effective date, this Sublease
shall be cancelled, in which case all consideration previously paid by
Sublessee to Sublessor on account of this Sublease shall be returned to
Sublessee, this Sublease shall thereafter be of no further force or effect,
and Sublessor shall have no further liability to Sublessee on account of
such delay or cancellation. If Sublessor permits Sublessee to take
Possession prior to the commencement of the Term, such early Possession
shall not advance the Termination Date and shall be subject to the
provisions of this Sublease, including without limitation the payment of
rent.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor as minimum rent,
without deduction, setoff, notice, or demand, at Xxxxx Xxxxx,
Schlumberger Resource Management Services, 0000 Xxxxxxx Xxx. 000,
Xxxxxxxxx, XX 00000 or at such other place as Sublessor shall
designate from time to time by notice to Sublessee, the sum of Three
Thousand Six Hundred Fifty Dollars ($3,650.00) per month, in advance
on the first day of each month of the Term. Sublessee shall pay to
Sublessor upon execution of this Sublease the sum of Three Thousand
Six Hundred Fifty Dollars ($3,650.00) as rent for August 1998. If the
Term begins or ends on a day other than the first or last day of a
month, the rent for the partial months shall be prorated on a per diem
basis. Additional provisions:
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6.2 Operating Costs. If the Master Lease requires Sublessor to pay to
Lessor all or a portion of the expenses of operating the building
and/or project of which the Premises are a part ("Operating Costs"),
including but not limited to taxes, utilities, or insurance, then
Sublessee shall pay to Sublessor as additional rent One Hundred
percent (100%) of the amounts payable by Sublessor for Operating Costs
incurred during the Term. Such
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additional rent shall be payable as and when Operating Costs are payable by
Sublessor to Lessor. If the Master Lease provides for the payment by
Sublessor of Operating Costs on the basis of an estimate thereof, then as
and when adjustments between estimated and actual Operating Costs are made
under the Master Lease, the obligations of Sublessor and Sublessee
hereunder shall be adjusted in a like manner; and if any such adjustment
shall occur after the expiration or earlier termination of the Term, then
the obligations of Sublessor and Sublessee under this Subsection 6.2 shall
survive such expiration or termination. Sublessor shall, upon request by
Sublessee, furnish Sublessee with copies of all statements submitted by
Lessor of actual or estimated Operating Costs during the Term.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease the
sum of Four Thousand Three Hundred Fifty-Five Dollars ($4,355.00) as
security for Sublessee's faithful performance of Sublessee's obligations
hereunder ("Security Deposit"). If Sublessee fails to pay rent or other
charges when due under this Sublease, or fails to perform any of its other
obligations hereunder, Sublessor may use or apply all or any portion of the
Security Deposit for the payment of any rent or other amount then due
hereunder and unpaid, for the payment of any other sum for which Sublessor
may become obligated by reason of Sublessee's default or breach, or for any
loss or damage sustained by Sublessor as a result of Sublessee's default or
breach. If Sublessor so uses any portion of the Security Deposit, Sublessee
shall, within ten (10) days after written demand by Sublessor, restore the
Security Deposit to the full amount originally deposited, and Sublessee's
failure to do so shall constitute a default under this Sublease. Sublessor
shall not be required to keep the Security Deposit separate from its
general accounts, and shall have no obligation or liability for payment of
interest on the Security Deposit. In the event Sublessor assigns its
interest in this Sublease, Sublessor shall deliver to its assignee so much
of the Security Deposit as is then held by Sublessor. Within ten (10) days
after the Term has expired, or Sublessee has vacated the Premises, or any
final adjustment pursuant to Subsection 6.2 hereof has been made, whichever
shall last occur, and provided Sublessee is not then in default of any of
its obligations hereunder, the Security Deposit, or so much thereof as had
not theretofore been applied by Sublessor, shall be returned to Sublessee
or to the last assignee, if any, of Sublessee's interest hereunder.
8. USE OF PREMISES.
The Premises shall be used and occupied only for Administrative offices and
warehousing of office equipment and supplies unless Sublessee gets
Sublessor's approval of any change of use of the premises and for no other
use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part
of the Premises without the prior written consent of Sublessor (and the
consent of Lessor, if such is required under the terms of the Master
Lease).
10. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are incorporated
into and made a part of this Sublease as if Sublessor were the lessor
thereunder. Sublessee the lessee thereunder, and the Premises the Master
Premises except for the following;
Sublessee agrees to perform the lessee's obligations under the Master Lease
during the Term to the extent that such obligations are applicable to the
Premises and incorporated herein. Sublessee shall not commit or suffer any
act or omission that will violate any of the provisions of the Master
Lease. If the Master Lease terminates, this Sublease shall terminate and
the parties shall be relieved of any further liability or obligation under
this Sublease, provided however, that if the Master Lease terminates as a
result of a default or breach by Sublessor or Sublessee under this Sublease
and/or the Master Lease, then the defaulting party shall be liable to the
nondefaulting party for the damage suffered as a result of such
termination. Notwithstanding the foregoing, if the Master Lease gives
Sublessor any right to terminate the Master Lease in the event of the
partial or total damage, destruction, or condemnation of the Master
Premises or the building or project of which the Master Premises are a
part, the exercise of such right by Sublessor shall not constitute a
default or breach hereunder.
11. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Broker shall commence an action against the
other arising out of or in connection with this Sublease, the prevailing
party shall be entitled to recover its costs of suit and reasonable
attorneys' fees.
12. AGENCY DISCLOSURE.
Sublessor and Sublessee each warrant that they have dealt with no other
real estate broker in connection with this transaction except: CB
COMMERCIAL REAL ESTATE GROUP, INC., who represents Sublessor and Xxxxx &
Xxxxx, who represents Sublessee. In the event that CB COMMERCIAL REAL
ESTATE GROUP, INC. represents both Sublessor and Sublessee, Sublessor and
Sublessee hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not
expect said broker to disclose to either of them the confidential
information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
consent is required under the terms of the Master Lease), Sublessor shall
pay Broker a real estate brokerage commission in accordance with
Sublessor's contract with Broker for the subleasing of the Premises, if
any, and otherwise in the amount of Six Thousand One Hundred Thirty-Two and
00/100 Dollars ($6,132.00), for services rendered in effecting this
Sublease. Broker is hereby made a third party beneficiary of this Sublease
for the purpose of enforcing its right to said commission.
14. NOTICES.
All notices and demands which may or are to be required or permitted to be
given by either party on the other or any and all notices of master Lessor
to Sublessor that may adversely affect Sublessee's right under Sublease
hereunder shall be in writing. All notices and demands by the Sublessor to
Sublessee shall be sent by United States Mail, postage prepaid, addressed
to the Sublessee at the Premises, and to the address hereinbelow, or to
such other place as Sublessee may from
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time to time designate in a notice to the Sublessor. All notices and
demands by the Sublessee to Sublessor shall be sent by United States Mail,
postage prepaid, addressed to the Sublessor at the address set forth
herein, and to such other person or place as the Sublessor may from time to
time designate in a notice to the Sublessee.
To Sublessor: Xxxxx Xxxxx, Schlumberger Resource Management Services, Inc.
0000 Xxxxxxx Xxx 000, Xxxxxxxxx, XX 00000
To Sublessee: Cholestech, 0000 Xxxxxxxxxx Xxxx., Xxxxxxx, XX 00000
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY LESSOR
WITHIN 15 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS REQUIRED UNDER
THE TERMS OF THE MASTER LEASE.
16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state and
local laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Foreign Investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and
The Americans With Disabilities Act.
Sublessor: Schlumberger Resource Management Sublessee: Cholestech Corporation
Services, Inc., a Delaware a California
Corporation Corporation
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXX XXXXXXX
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Title: Dir-Operations Title: VP of Operations
By: By: /s/ XXXXXX X. XXXXXXXX XX
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Title:_____________________________________ Title: President
Date: 8/5/98 Date: 7/30/98
LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
Lessor: Xxxxxxx Properties
By:________________________________________
Title:_____________________________________
By:________________________________________
Title:_____________________________________
Date:______________________________________
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CONSULT YOUR ADVISERS -- This document has been prepared for approval by your
attorney. No representations or recommendation is made by Broker as to the
legal sufficiency or tax consequences of this document or the transaction to
which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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17. CONDITION OF PROPERTIES:
Sublessee to take the premises on an "as-is" basis except for the
following:
1. Sublessor at Sublessor's sole cost and expense, shall clean carpets and
repaint office area.
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[LOGO] DISCLOSURES AND ACKNOWLEDGMENT
ADDENDUM TO LEASING LISTING AGREEMENT/LEASE & SUBLEASE AGREEMENT/
PROPOSAL TO LEASE
CB COMMERCIAL REAL ESTATE GROUP, INC.
BROKERAGE AND MANAGEMENT
LICENSED REAL ESTATE BROKER
Date: January 23, 1998
Sublessor: Schlumberger Resource Management Services, Inc.
Sublessee: Cholestech Corporation
Property: 00000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, XX
I. NOTIFICATION RE: NATIONAL FLOOD INSURANCE PROGRAM (CBC Form 5230)
This property [X} is / [ ] is not located in a Special Flood Hazard Area on
United States Department of Housing and Urban Development (HUD) "Special Flood
Zone Area Maps." Federal law requires that as a condition of obtaining federally
related financing on most properties located in "flood zones," banks, savings
and loan associations, and some insurance lender require flood insurance to be
carried where the property, real or personal, is security for a loan. This
requirement is mandated by the national Flood Insurance Act of 1968 and the
Flood Disaster Protection Act of 1973. The purpose of the program is to provide
flood insurance to property owners at a reasonable cost. Cities or counties
participating in the National Flood Insurance Program may have adopted building
or zoning restrictions, or other measures, as part of their participation in the
program. You should contact the city or county in which the property is located
to determine any such restrictions. The extent of coverage available in your
area and the cost of this coverage may vary, and for further information, you
should consult your lender or insurance carrier.
FLOOD ZONE DESIGNATION: ZONE: A1 SOURCE: Firm 0000000000D
II. XXXXXXX-XXXXXX NOTIFICATION: XXXXXXX-XXXXXX SPECIAL EARTHQUAKE FAULT ZONING
ACT (CBC Form 5228-5229) The Property described above [ ] is / [X] is not / [ ]
may or may not be situated in an Earthquake Fault Zone as designated under the
Xxxxxxx-Xxxxxx Earthquake Fault Zoning Act, Sections 2621-2630, inclusive, of
the California Public Resources Code; and, as such, the construction or
development on the property of any structure for human occupancy may be subject
to the findings of a geologic report prepared by a geologist registered in the
State of California, unless such report is waived by the city or county under
the terms of that Act. No representations on the subject are made by Lessor or
by CB Commercial Real Estate Group, Inc. or its agents or employees and the
Lessee should make his/her/its own inquiry or investigation.
For further information, you may wish to contact appropriate city or county
agencies:
III. HAZARDOUS WASTES OR SUBSTANCES AND UNDERGROUND STORAGE TANKS
Comprehensive federal and state laws and regulations have been enacted in the
past several years in an effort to control the use, storage, handling, clean-up,
removal and disposal of hazardous wastes or substances. Some of these laws and
regulations (such as, for example, the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA)) provide for broad liability on the part
of owners, tenants, or other users of property for clean-up costs and damages,
regardless of fault. Another such statute is California Health and Safety Code
Section 25359.7(a), which provides in part that a Lessor of nonresidential real
property who knows, or has reasonable cause to believe, that any release of a
hazardous substance has come to be located on or beneath that real property
shall, prior to the Lease, give written notice of that condition to the Lessee;
and that failure of the Lessor to provide written notice as required shall
subject the Lessor to liability for damages. Other laws and regulations set
standards for the handling of asbestos, and establish requirements for the use,
modification, abandonment, and closure of underground storage tanks.
It is not practical or possible to list all such laws and regulations in this
Notice. Therefore, Lessors and Lessees are urged to consult legal counsel to
determine their respective rights and liabilities with respect to the issues
described in this Notice, as well as all other aspects of the proposed
transaction. If hazardous wastes or substances have been, or are going to be
used, stored, handled or disposed on the property, or if the Property has been
or may have underground storage tanks, it is essential that legal and technical
advice be obtained to determine, among other things, the nature of permits and
approvals which have been obtained or may be required; the estimated costs and
expenses associated with the use, storage, handling, clean-up, disposal or
removal of hazardous wastes or substances; and the nature and extent of
contractual provisions necessary or desirable in this transaction. Broker
recommends expert assistance and site investigation to determine past uses of
the property, which may provide valuable information as to the likelihood of
hazardous wastes or substances, or underground storage tanks, being on the
Property.
Lessor agrees to disclose to Broker and to Lessee any and all information which
he/she/it has regarding present and future zoning and environmental matters
affecting the Property and regarding the condition of the Property, including,
but not limited to structural, mechanical and soils conditions, the presence and
location of asbestos, PCB transformers, other toxic, hazardous or contaminated
substances, and underground storage tanks, in, on, or about the Property.
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Broker hereby requests that such information be provided immediately so that it
may be timely communicated to the Lessee. Broker has conducted no investigation
regarding the subject matter hereof, except as may be contained in a separate
written document signed by Broker. Broker makes no representations concerning
the existence or nonexistence of hazardous wastes or substances, or underground
storage tanks, in, on, or about the property. Lessee should contact a
professional, such as a civil engineer, industrial hygienist or other persons
with experience in these matters, to advise on these matters.
The term "hazardous wastes or substances" is used herein in its very broadest
sense and includes, but is not limited to, petroleum based products, paints and
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonium
compounds, asbestos, PCBs and other chemical products. Hazardous wastes or
substances and underground storage tanks may be present on all types of real
property. This Notice is intended to apply to any transaction involving any
type of real property, whether improved or unimproved.
IV. BROKER DISCLOSURE
The parties hereby expressly acknowledge that Broker has made no independent
determination or investigation regarding the following: present or future use or
zoning of the property; environmental matters affecting the Property; the
condition of the Property, including, but not limited to structural, mechanical
and soils conditions as well as issues surrounding hazardous wastes or
substances as set out above; violations of the Occupational Safety and Health
Act or any other federal, state, county or municipal laws, ordinance, or
statutes; measurements of land and/or buildings. Lessee agrees to make its own
investigation and determination regarding such items. A real estate broker is
qualified to advise on real estate. If you desire legal advice, consult your
attorney.
V. AMERICANS WITH DISABILITIES ACT (ADA)
Owners or tenants of real property may be subject to the Americans with
Disabilities Act (ADA), a federal law codified at 42 USC Section 12101 et seq.
Among other requirements of the ADA that could apply to your property, Title III
of the Act requires owners and tenants of "public accommodations" to remove
barriers to access by disabled persons and provide auxiliary aids and services
for hearing, vision or speech impaired persons. The regulations under Title III
of the ADA are codified at 28 CFR Part 36.
Broker recommends that you and your attorney review the ADA and the
regulations, and, if appropriate, your proposed lease or purchase and sale
agreement to determine if this would apply to you and the nature of the
requirements. Thee are legal issues. You are responsible for conducting your
own independent investigation of these issues.
VI. COMPLIANCE WITH LAWS
The parties hereto agree to comply with all applicable federal, state and local
laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Foreign Investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
RECEIPT OF A COPY OF THESE DISCLOSURES IS HEREBY ACKNOWLEDGED.
SUBLESSOR: Schlumberger Resource Management SUBLESSEE: Cholestech Corporation
Services, Inc.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXX XXXXXXX
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Title: Dir. - Operations Title: VP of Operation
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Date: 8/5/98 Date: 7/30/98
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This portion to be completed in conjunction with negotiations and/or
consummation of lease or purchase and sale agreement.
VII. BROKER REPRESENTATION DISCLOSURE AND ACKNOWLEDGMENT
CB Xxxxxxx Xxxxx, Inc. herein represents Sublessor.
Xxxxx & Xxxxx herein represents Sublessee.
/ / (check if applicable) Lessor and Lessee hereby acknowledge that Broker
represents both parties hereto; and both parties consent thereto.
/s/ KDP Sublessor's initials /s/ SLB Sublessee's initials
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Consult Your Advisors. No representation or recommendation is made by CB
Commercial Real Estate Group, Inc. or any of its agents or employees as to the
legal effect, interpretation, or economic consequences of this agreement, the
transaction contemplated hereunder, the national flood insurance program and
related legislation, nor of other legislation referred to herein. These are
questions that you should address with your consultants and advisors.
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EXHIBIT E
PREMISES/FLOOR PLAN
[DIAGRAM]
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FIRST ADDENDUM TO SUBLEASE
This First Addendum to Sublease (this "Addendum") is made by and between
Schlumberger Resource Management Services, Inc., a Delaware corporation
("Sublessor"), and Cholestech Corporation, a California corporation
("Sublessee"), to be a part of that certain Sublease of even date herewith
between Sublessor and Sublessee (the "Sublease"). Sublessor and Sublessee
agree that, notwithstanding anything to the contrary in the Sublease, the
Sublease is hereby modified and supplemented as set forth below. All terms
with initial capital letters used herein as defined terms shall have the
meanings ascribed to them in the Sublease unless specifically defined herein.
1. Condition of premises. Sublessor hereby represents that as of the
Commencement Date, to Sublessor's actual current knowledge as of the effective
date of this Addendum and without any obligation of investigation, (a) the
Premises are in good condition, (b) the Premises do not violate any applicable
building code regulation or ordinance and (c) the heating, ventilating and air
conditioning systems serving the Premises are in good condition, working order
and repair.
2. Other Provisions of Sublease. The provisions of the Master Lease
shall be incorporated into the Sublease, except as follows: (a) the following
portions of the Master Lease shall not be incorporated; Basic Lease Information
and Sections 2, 3, 6, 19 and 32; and (b) references to Landlord in Sections 20,
24, 28 and 29 shall mean Lessor only.
3. Assignment and Subletting. Sublessee, without Sublessor's prior
written consent, subject, however, to Master Lessor's consent (if required), may
sublet the Premises or assign the Sublease to: (a) a corporation controlling,
controlled by or under common control with Sublessee; (b) a corporation related
to Sublessee by merger, consolidation or non-bankruptcy reorganization; or (c) a
purchaser of substantially all of Sublessee's assets. Sublessee shall not,
however, be relieved of its primary obligations under the Sublease. A sale of
Sublessee's capital stock shall not be deemed an assignment, subletting or other
transfer of the Sublease or the Premises.
4. Rental Adjustments. In no event shall Sublessee's obligation to pay
Basic Operating Costs exceed the amount of Basic Operating Costs due and
payable by Sublessor under the Master Lease. Sublease shall pay Sublessee's
share of such expenses as and when the same are due and payable to Lessor under
the Master Lease. Sublessee shall be entitled to its pro rata share of all
credits, if any, given by Lessor to Sublessor for Sublessor's overpayment of
such expenses.
5. Surrender of Premises. Subject to Sublessee's indemnification
obligations and obligations with respect to hazardous materials under the
Sublease and the terms of the Master Lease incorporated herein, in no event
shall Sublessee's obligations to surrender the Premises require Sublessee to
repair or restore the Premises to a condition better than the condition in
which the Premises existed as of the commencement date of the Sublease and
sublessee shall only be responsible for repairing or restoring those elements
of the Premises damaged during the Sublease Term or caused by Sublessee.
Additionally, Sublessee shall not be required to remove at the expiration of
the Sublease term or otherwise, alterations or improvements to the Premises
made by or for the account of Sublessor.
6. Sublessor's Obligations. Sublessor shall not, without Sublessee's
prior written consent (which consent shall not be unreasonably withheld),
terminate the Master Lease, commit any acts that would entitle Lessor to
terminate the Master Lease, or amend or waive any provisions of the Master
Lease or make any elections, exercise any right or remedy or give any consent
or approval under the Master Lease that would materially affect Sublessee's
rights under the Sublease. Sublessor may, however, exercise any termination
rights under the Master Lease with respect to casualty or condemnation.
Sublessor, with respect to the obligations of Lessor under the Master Lease,
shall use Sublessor's reasonable efforts, at Sublessee's sole cost and expense,
to cause Lessor to perform such obligations for the benefit of Sublessee. Such
reasonable efforts shall include, without limitation: (a) upon Sublessee's
written request, immediately notifying Lessor of its nonperformance under the
Master Lease, and requesting that Lessor perform its obligations under the
Master Lease; and (b) with Sublessor's prior written consent (which consent
shall not be unreasonably withheld), permitting Sublessee to commence a lawsuit
or other action in Sublessee's name to obtain the performance required from
Lessor under the Master Lease; provided, however, that if Sublessee commences a
lawsuit or other action, Sublessee shall pay all costs and expenses incurred in
connection therewith, and Sublessee shall indemnify Sublessor against, and hold
Sublessor harmless from, all reasonable costs and expenses incurred by
Sublessor in connection therewith.
7. Quiet Enjoyment. Sublessee shall peacefully have, hold and enjoy the
Premises, subject to the terms and conditions of the Sublease, provided that
there is not an event of default by Sublessee. Sublessor shall fully perform
all of its obligations under the Master Lease to the extent Sublessee has not
expressly agreed to perform such obligations under the Sublease. In the event,
however, that Sublessor defaults in the performance or observance of any of
Sublessor's remaining obligations under the Master Lease or fails to perform
Sublessor's stated obligations under the Sublease or to enforce, for
Sublessee's benefit, Lessor's obligations under the Master Lease, then
Sublessee shall give Sublessor notice specifying in what manner Sublessor has
defaulted, and if such default shall not be cured by Sublessor within thirty
(30)
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days thereafter (except that if such default cannot be cured within said thirty
(30) period, this period shall be extended for an additional reasonable time,
provided that Sublessor commences to cure such default within such thirty (30)
day period and proceeds diligently thereafter to effect such cure as quickly as
possible), then Sublessee shall be entitled to cure such default and promptly
collect from Sublessor, Sublessee's reasonable expenses in so doing (including,
without limitation, reasonable attorneys' fees and court costs), or, at
Sublessee's option, to offset such reasonable expenses against all future
payments of rent and additional rent due under the Sublease. Sublessee shall not
be required, however, to wait the entire cure period described herein if earlier
action is required to comply with the Master Lease or with any applicable
governmental law, regulation or order.
8. Rights under Master Lease. Sublessor, at Sublessee's sole cost and
expense, shall reasonably cooperate with Sublessee to enforce all warranties and
indemnities given or made by Lessor to Sublessor under the Master Lease which
would reduce Sublessee's obligations hereunder.
9. Notice. All notices and demands sent by United States Mail shall be
deemed delivered three (3) business days after mailing.
10. Approvals. Whenever the Sublease requires an approval, consent,
designation, determination, selection or judgment by either Sublessor or
Sublessee, such approval, consent, designation, determination, selection or
judgment, and any conditions imposed thereby shall be reasonable and shall not
be unreasonably withheld or delayed and, in exercising any right or remedy
hereunder, each party shall at all times act reasonably and in good faith.
SUBLESSOR: SUBLESSEE:
SCHLUMBERGER RESOURCE CHOLESTECH CORPORATION,
MANAGEMENT SERVICES, INC., a California corporation
a Delaware corporation
By /s/ XXXXXXX PREVATE By /s/ XXXXX XXXXXXX
------------------------ --------------------------------
Name Xxxxxxx Xxxxxxxx Name Xxxxx Xxxxxxx
----------------------- ------------------------------
Title Director - Operations Title Vice President of Operations
---------------------- -----------------------------
Dated 8/5/98 Dated 7/30/98
---------------------- -----------------------------
By /s/ XXXXXX X. XXXXXXXX XX
--------------------------------
Name Xxxxxx X. Xxxxxxxx XX
------------------------------
Title President
-----------------------------
Date 7/31/98
------------------------------
