EXHIBIT 10.12
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD SUBLEASE
(Short-form to be used with post 1995 AIR leases)
1. Parties. This Sublease, dated, for reference purposes only, August 3,
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1999, is made by and between Breath Asure, Inc., a California corporation
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("Sublessor") and Digital Insight Corporation, a Delaware corporation
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("Sublessee").
2. Premises. Sublessor hereby subleases to Sublessee and Sublessee
hereby subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property, including all
improvements therein, and commonly known by the street address of 26025 Mureau
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▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ located in the County of Los Angeles , State of
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California and generally described as (describe briefly the nature of the
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property) approximately 15,486 rentable square feet located on the western
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portion of the first and second floors of the above referenced building.
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("Premises").
3. Term.
3.1 Term. The term of this Sublease shall be for Thirty one (31)
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months commencing on December 1, 1999 and ending on June 30, 2002 unless sooner
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terminated pursuant to any provision hereof.
3.2 Delay in Commencement. Sublessor agrees to use its best
commercially reasonable efforts to deliver possession of the Premises by the
commencement date. If, despite said efforts, Sublessor is unable to deliver
possession as agreed, the rights and obligations of Sublessor and Sublessee
shall be as set forth in section 18 of this agreement (as modified by Paragraph
7.3 of this Sublease).
4. Rent.
4.1 Base Rent. Sublessee shall pay to Sublessor as Base Rent for
the Premises equal monthly payments of $17,034.60 in advance, on the first day
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of each month of the term hereof via wire transfer. Sublessee shall pay
Sublessor upon the execution hereof $17,034.60 as Base Rent for December, 1999.
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Base Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment.
4.2 Rent Defined. All monetary obligations for Sublessee to
Sublessor under the terms of this Sublease (except for the Security Deposit) are
deemed to be rent ("Rent"). Rent shall be payable in lawful money of the United
States to Sublessor at the address stated herein or to such other persons or at
such other places as Sublessor may designate in writing.
5. Security Deposit. Sublessee shall deposit with Sublessor upon
execution hereof $38,715.00 as security for Sublessee's faithful performance of
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Sublessee's obligations hereunder. The rights and obligations of Sublessor and
Sublessee as to said Security Deposit shall be as set forth in the Master Lease
(as modified by Paragraph 7.3 of this Sublease).
6. Use.
6.1 Agreed Use. The Premises shall be used and occupied only for
any legally permitted use under the Master Lease and for no other purpose.
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6.2 Compliance. Sublessee is responsible for complying with all
applicable covenants or restrictions of record and applicable building codes,
regulations and ordinances ("Applicable Requirements") in effect on the
commencement date. Sublessee is responsible for determining whether or not the
zoning is appropriate for its intended use, and acknowledges that past uses of
the Premises may no longer be allowed.
6.3 Acceptance of Premises and Lessee. Sublessee acknowledges that:
(a) it has been advised by Brokers to satisfy itself with
respect to the condition of the Premises (including but not limited to the
electrical, HVAC and fire sprinkler systems, security, environmental aspects,
and compliance with Applicable Requirements), and their suitability for
Sublessee's intended use,
(b) Sublessee has made such investigation as it deems necessary
with reference to such matters and assumes all responsibility therefor as the
same relate to its occupancy of the Premises, and
(c) neither Sublessor, Sublessor's agents, nor any Broker has
made any oral or written representations or warranties with respect to said
matters other than as set forth in this Sublease.
In addition, Sublessor acknowledges that:
(a) Broker has made no representations, promises or warranties
concerning Sublessee's ability to honor the Sublease or suitability to occupy
the Premises, and
(b) it is Sublessor's sole responsibility to investigate the
financial capability and/or suitability of all proposed tenants.
7. Master Lease.
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "Master Lease", a copy of which is attached hereto marked
Exhibit 1, wherein Sublessor leased the Premises from LAOP IV, LLC, a Nevada
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Limited Liability Company, hereinafter the "Master Lessor."
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7.2 This Sublease is and shall be at all times subject to the Master
Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event the terms of this Sublease
document shall control over the Master Lease. Therefore, for the purposes of
this Sublease, wherever in the Master Lease the word "Lessor" is used it shall
be deemed to mean the Sublessor herein and wherever in the Master Lease the word
"Lessee" is used it shall be deemed to mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent
for obligations which have arisen prior to the termination of this Sublease,
Sublessee does hereby expressly assume and agree to perform and comply with, for
the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor under the Master Lease except for the following paragraphs which are
excluded therefrom: Basic Lease Information Sections 3, 4, 5, 6, 11, 12 and 13,
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Lease Sections 1.2, 1.3, 1.4, 2.2, 2.5.3, 3.1*.
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7.5 The obligations that Sublessee has assumed under paragraph 7.4
hereof are hereinafter referred to as the "Sublessee's Assumed Obligations." The
obligations that Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations."
7.6 Sublessee shall hold Sublessor free and harmless from all
liability, judgments, costs, damages, claims or demands, including reasonable
attorneys' fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the entire
term of this Sublease, subject, however, to any earlier termination of the
Master Lease without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless from
all liability, judgments, costs, damages, claims or demands arising out of
Sublessor's failure to comply with or perform Sublessor's Remaining Obligations.
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*(third paragraph commencing with word "Notwithstanding"), 4.1 (first
paragraph), 22.24, 22.32, 22.33, Exhibit B (sections A, C and D), and Exhibit C.
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7.8 Sublessor represents to Sublessee that the Master Lease is in
full force and effect and that no default exists on the part of any Party to the
Master Lease.
8. Assignment of Sublease and Default.
8.1 Sublessor hereby assigns and transfers to Master Lessor the
Sublessor's interest in this Sublease, subject however to the provisions of
Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a
Default shall occur in the performance of Sublessor's Obligations under the
Master Lease, that Sublessor may receive, collect and enjoy the Rent accruing
under this Sublease. However, if Sublessor shall Default in the performance of
its obligations to Master Lessor then Master Lessor may, at its option, receive
and collect, receive and collect, directly from Sublessee, all Rent owing and to
be owed under this Sublease. Master Lessor shall not, by reason of this
assignment of the Sublease nor by reason of the collection of the Rent from the
Sublessee, be deemed liable to Sublessee for any failure of the Sublessor to
perform and comply with Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee
upon receipt of any written notice from the Master Lessor stating that a Default
exists in the performance of Sublessor's obligations under the Master Lease, to
pay to Master Lessor the Rent due and to become due under the Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon any such
statement and request from Master Lessor, and that Sublessee shall pay such Rent
to Master Lessor without any obligation or right to inquire as to whether such
Default exists and notwithstanding any notice from or claim from Sublessor to
the contrary and Sublessor shall have no right or claim against Sublessee for
any such Rent so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease
without the consent of Master Lessor.
9. Consent of Master Lessor.
9.1 In the event that the Master Lease requires that Sublessor obtain
the consent of Master Lessor to any subletting by Sublessor then, this Sublease
shall not be effective unless, within ten days of the date hereof, Master Lessor
signs this Sublease thereby giving its consent to this Subletting.
9.2 In the event that the obligations of the Sublessor under the
Master Lease have been guaranteed by third parties then neither their Sublease,
nor the Master Lessor's consent, shall be effective unless, within 10 days of
the date hereof, said guarantors sign this Sublease thereby giving their consent
to this Sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent shall not release Sublessor of its obligations
or alter the primary liability of Sublessor to pay the Rent and perform and
comply with all of the obligations of Sublessor to be performed under the Master
Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee or
anyone else liable under the Master Lease shall not be deemed a waiver by Master
Lessor of any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a consent
to any subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the Master
Lease, Master Lessor may proceed directly against Sublessor, any guarantors or
anyone else liable under the Master Lease or this Sublease without first
exhausting Master Lessor's remedies against any other person or entity liable
thereon to Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and
assignments of the Master Lease or this Sublease or any amendments or
modifications thereto without notifying Sublessor or any one else liable under
the Master Lease and without obtaining their consent and such action shall not
relieve such persons from liability.
(f) In the event that Sublessor shall Default in its obligations
under the Master Lease, then Master Lessor, at its option and without being
obligated to do so, may require Sublessee to attorn to Master Lessor in which
event Master Lessor shall undertake the obligations of Sublessor under this
Sublease from the time of the exercise of said option to termination of this
Sublease but Master Lessor shall not be liable for any prepaid Rent nor any
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Security Deposit paid by Sublessee, nor shall Master Lessor be liable for any
other Defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of
Sublessor at the end of this document shall constitute their consent to the
terms of this Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no Default presently exists under the Master Lease of obligations to
be performed by Sublessor and that the Master Lease is in full force and effect.
9.6 In the event that Sublessor Defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to deliver
to Sublessee a copy of any such notice of default. Sublessee shall have the
right to cure any Default of Sublessor described in any notice of default within
ten days after service of such notice of default on Sublessee. If such Default
is cured by Sublessee then Sublessee shall have the right of reimbursement and
offset from and against Sublessor.
10. Brokers Fee.
10.1 Upon execution hereof by all parties, Sublessee shall pay to
WESTMAC Commercial Brokerage Company, a licensed real estate broker ("Broker"),
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the sum of $21,060.88 for brokerage services rendered by Broker to Sublessor in
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this transaction.
10.2 Any transferee of Sublessee's interest in this Sublease, by
accepting an assignment thereof, shall be deemed to have assumed the respective
obligations of Sublessee or Master Lessor under this Paragraph 10. Broker shall
be deemed to be a third-party beneficiary of this paragraph 10.
11. Attorney's Fees. If any party or the Broker named herein brings an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party in any such action, on trial and appeal, shall be entitled to
his reasonable attorney's fees to be paid by the losing party as fixed by the
Court.
12. Additional Provisions. [If there are no additional provisions, draw a
line from this point to the next printed word after the space left here. If
there are additional provisions, place the same here.]
*Addendum attached.
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ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
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INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE
SUITABILITY OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA,
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CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO COMPLY WITH THE
LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
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Executed at: Breath Asure, Inc., a California corporation
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on: ______________________________________________________ By _________________________________________
Address: __________________________________________________ By _________________________________________
"Sublessor" (Corporate Seal)
Executed at: Digital Insight Corporation, a Delaware
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on: _______________________________________________________ By __________________________________________
Address: __________________________________________________ By _________________________________________
"Master Lessor" (Corporate Seal)
Executed at:________________________________________________ ______________________________________________
on: _______________________________________________________ By _________________________________________
Address: __________________________________________________ By _________________________________________
"Sublessor" (Corporate Seal)
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. (▇▇▇) ▇▇▇-▇▇▇▇.
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ADDENDUM TO STANDARD SUBLEASE
Dated August 3, 1999
Between Breath Asure, Inc. and Digital Insight Corporation
13. CONTINGENCIES:
(A) If Sublessor shall not have executed a lease for alternative
Premises prior to September 15, 1999, Sublessor may terminate
this Sublease by delivering written notice to Sublessee not later
than September 17, 1999. In the event of such termination,
Sublessor shall return all advance payments to Sublessee and each
party shall thereupon be released from all liability hereunder.
If Sublessor shall fail to deliver such a termination notice to
Sublessee on or before September 17, 1999, this Sublease shall
remain in full force and effect.
(B) This Sublease is contingent upon Master Lessor not terminating
the Master Lease. If Master Lessor terminates the Master Lease,
then Sublessor may provide Master Lessor and Sublessee with a
"Revocation Notice" (as that term is defined in the Master Lease)
and this Sublease shall thereupon be terminated and Sublessor's
Master Lease shall remain in effect. In the event of such
termination, Sublessee shall vacate the Temporary Space,
Sublessor shall return all advance payments to Sublessee and each
party shall thereupon be released from all liability hereunder.
If Sublessor shall fail to deliver a Revocation Notice to
Sublessee within two (2) days following Master Lessor's delivery
to Sublessor of a notice terminating the Master Lease, this
Sublease shall remain in full force and effect.
14. BASE RENT ADJUSTMENT:
The Base Rent shall be adjusted during the term as follows:
December 1, 1999 - June 30, 2000: $17,034.60 per month, NNN
July 1, 2000 - June 30, 2001: $18,583.20 per month, NNN
July 1, 2001 - June 30, 2002: $19,357.50 per month, NNN
15. ADDITIONAL CHARGES:
The Base Rent is on a triple net basis where Sublessee shall pay
for all the triple net charges and any other additional costs as
they are described in the Master Lease. All additional charges
shall be included with the Base Rent payment (as described in
Paragraph 4.1) on the first day of each month of the Sublease
term. Upon the Sublease commencement date Sublease shall, at its
sole cost and expense, change the utilities within the Premises,
as well as the telephone line in the elevator, from the
Sublessor's name to Sublessee's name
(the foregoing shall not apply to the occupancy by Sublessee of
the Temporary Space prior to the Sublease Commencement Date).
In addition to all other amounts payable by Sublessee under this
Sublease, Sublessee shall pay to Sublessor $70,000.00 (the
"Additional Payment") to contribute toward Sublessor's costs of
moving expenses and tenant improvement costs in connection with
Sublessor's new lease transaction. The Additional Payment shall
be paid in two installments: (a) $52,500.00 upon the execution
of this Sublease; and (b) $17,500.00 upon the commencement of the
Sublease Term. By consenting to this Sublease, Master Lessor
agrees that the Additional Payment shall not constitute "Bonus
Rent" (as that term is defined in the Master Lease) and that
Master Lessor shall not be entitled to any "Bonus Rent" as a
result of this Sublease.
16. TENANT IMPROVEMENTS:
Sublessee shall accept the Premises and the Temporary Space in an
"as is" "where is" condition and Sublessor makes no
representations or warranties, express or implied, regarding the
Premises or the Temporary Space or their condition or suitability
for Sublessee's intended use. Sublessor shall not be responsible
for completing any Tenant Improvements whatsoever.
17. TEMPORARY SPACE:
The Sublessor shall vacate the second floor (as per Exhibit "A")
of the Premises by a date which is twenty-one (21) days following
the date of mutual execution of this Sublease (the "Temporary
Space Date"). Sublessee shall utilize such Temporary Space for
Sublessee's business commencing on the date which is ten (10)
days after Sublessee's delivery to Sublessor of written notice of
Sublessee's intention to occupy the Temporary Space (provided
that, regardless of the date of such notice or whether such
notice is delivered, Sublessee shall be obligated to pay rent for
the Temporary Space commencing on a date which is no later than
the Temporary Space Date) and continuing until the Sublease term
commences on December 1, 1999. Sublessee shall pay to Sublessor
$8,000.00 upon the execution hereof as base rent for such use of
the Temporary Space for the first one-month period. Thereafter,
Sublessee shall pay to Sublessor, in advance, base rent for the
use of the Temporary Space at the rate of $8,000 per month
(prorated for any partial months) until the Sublease term
commences on December 1, 1999. Sublessor shall also pay all
parking, utilities and the triple net costs during the three (3)
months of the Temporary Space term. If this Sublease is
terminated pursuant to the terms of Paragraph 13 hereof,
Sublessee shall thereupon vacate the Temporary Space. Except for
the payment of rent, which shall be as set forth above, Sublessee
shall comply with all other terms of this Sublease during the
Temporary Space term including, without limitation, the
obligation to maintain insurance, indemnify Sublessor and Master
Lessor, and the
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obligation to surrender the Temporary Space in the condition
required under the Sublease.
18. DEFAULT BY MASTER LANDLORD:
Sublessee acknowledges and agrees that: (a) Sublessor shall not
be liable or responsible for any breach or default by Master
Lessor of any of the covenants and obligations of Master Lessor
under the Master Lease; and (b) no such breach of default by
Master Lessor shall constitute a default by Sublessor under this
Sublease or subject Sublessor to any liability to Sublessee for
damages or otherwise.
19. CONSENTS:
Wherever Sublessee is required to obtain consent to an action
under this Sublease, Sublessee shall be required to obtain the
consent of both Master Lessor and Sublessor at the sole cost of
Sublessee. Sublessor shall not unreasonably withhold its consent
to any action of Sublessor to which Master Lessor has consented.
20. BROKERS:
Sublessee represents and warrants that although it is responsible
for paying both Sublessor's broker and Sublessee's broker,
Sublessee is utilizing only ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ of California,
Inc., and has not utilized any other broker or finder in this
transaction, and agrees to protect, defend, indemnify and hold
harmless Sublessor from any claims made by any such broker or
finder. Sublessor represents and warrants that it is utilizing
only Westmac Commercial Brokerage Company and that it has not
utilized any other broker or finder in this transaction and
agrees to protect, defend, indemnify and hold harmless Sublessee
from any claims made by any broker or finder except for Westmac
Commercial Brokerage Company.
21. INSURANCE:
Sublessee shall cause both Master Lessor and Sublessor to be
named as additional insureds under all policies of insurance
required under Section 12.3 of the Master Lease.
22. TERMINATION RIGHT:
Notwithstanding the commencement date stated in Paragraph 3.1, if
Sublessor fails to deliver the entire Premises to Sublessee by
December 31, 1999, because, and only because, the landlord for
Sublessor's new premises has not delivered such new premises to
Sublessor by December 31, 1999, Sublessee or Sublessor shall have
the right to terminate this Sublease by delivering written notice
to the other on or before January 5, 2000. If neither party
shall
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deliver such a termination notice, this Sublease shall
remain in full force and effect.
BREATH ASURE, INC. DIGITAL INSIGHT CORPORATION
a California corporation a Delaware corporation
By: ________________________________ By: ____________________________
Its: ________________________________ Its: ____________________________
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