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Exhibit 10.12
FORM OF SUBLEASE AND CONSENT
THIS SUBLEASE AND CONSENT (this "Sublease") is made as of this ___ day
of __________, 1997 among UBICS, INC. a corporation organized under the laws of
Delaware ("Tenant"), UNITED BREWERIES OF AMERICA, INC., a corporation organized
under the laws of Delaware ("Sublessee"), and MARIN EXECUTIVE PARK, a general
partnership existing under the laws of California ("Landlord").
PREAMBLE
A. Landlord and Tenant have previously entered into that certain lease
dated May 28, 1996, as amended by an Addendum to Lease Agreement dated as of
November 1, 1996 and 2nd Addendum to Lease Agreement dated June 20, 1997
(together, the "Master Lease"), for space in the building located at Xxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx (the "Building"), which leased
space contains approximately 4,439 rentable square feet of space (the "Leased
Premises").
B. Sublessee desires to sublease a portion of the Leased Premises
leased by Tenant from Landlord, Tenant desires to sublease such space to
Sublessee, and Landlord is willing to approve the same, all on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the parties
hereto agree as follows:
1. Sublease. Tenant shall sublease to Sublessee and Sublessee shall
sublease from Tenant approximately 3,000 rentable square feet of the Leased
Premises, along with the nonexclusive right to the use of the common areas of
the Building and the Premises for their normal and intended purpose, all as
more fully described in Exhibit A attached hereto (the "Sublease Premises"). In
addition, employees of Sublessee shall be permitted access to the facilities of
Tenant in the Building, as well as to parking, on the same terms and conditions
as Tenant and its employees and agents are entitled to the same.
2. Term. The term of this Sublease shall commence on _________ __, 1997
or such later date as may be agreed upon by the parties hereto (the
"Commencement Date") and terminate on July 2, 1999 (the "Expiration Date"),
unless sooner terminated or extended, subject to Section 8 below.
3. Rent.
(a) Minimum Rent. As minimum rent for the Sublease Premises (the
"Base Rent") Sublessee shall pay to Tenant the amount of $4,788.37 per month
(representing Sublessee's pro rata share of Tenant's current base rent payment
of $7,085.19 under the Master Lease), in advance at its offices or at such
other place as Tenant may from time to time designate in writing, beginning on
the first day of the term and continuing on the first day of every month
thereafter until the expiration of the term. In the event that Sublessee's
obligation to pay Rent commences on a day other than the first day of a
calendar month, Sublessee shall pay to Tenant a pro rata portion of the monthly
installment of Rent for such calendar month, such pro rata portion to be
calculated on the number of days remaining in such partial month after the day
upon which Sublessee's obligation to pay Rent commences. All Base Rent and
Additional Rent (as defined below) payable by Sublessee hereunder shall be paid
to Tenant without any deduction or set-off whatsoever.
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(b) The monthly Base Rent set forth in paragraph (a) above shall be
adjusted annually in the same proportion as the minimum rent payable by Tenant
to Landlord under Section 4 of the Master Lease is adjusted, with each
adjustment in the monthly Base Rent payable by Sublessee hereunder becoming
effective at the same time as the adjustment to the rent payable by Tenant to
Landlord under the Master Lease.
(i) The redetermination of the Rent hereunder shall be made by
Tenant as soon as possible after receipt of notice from Landlord of the amount
of each adjustment in the rent payable by Tenant.
(ii) No delay in the redetermination of the base rent by
Landlord or Tenant or the providing of any notice regarding the same shall
delay or excuse the Sublessee's obligation to pay the monthly installments of
Base Rent when due. Such amount as provided herein as last adjusted shall be
paid, and upon redetermination of the monthly rent, any balance of annual base
rent due and owing by the Sublessee to Tenant for previous months shall be paid
forthwith.
(c) Additional Rent. As and for Additional Rent, Sublessee shall
pay to Tenant $2,111.63 per month, representing 67.58% (being the quotient
obtained by dividing 3,000, which is Tenant's rentable square feet, by 4,439,
which is the total rentable square feet of the Leased Premises) of all amounts
payable by Tenant to Landlord as Tenant's allowance for Tenant's share of
Building operating expenses. As of the date hereof, Tenant's monthly payment
for operating expenses (as defined in the Master Lease) under the Master Lease
is $3,124.51. In addition, (i) Sublessee shall pay Tenant 67.58% of any
additional amounts payable by Tenant to Landlord for periods covered by this
Sublease under Section 4.05 of the Master Lease and (ii) Tenant shall repay
Sublessee an amount equal to 67.58% of any credit received by Tenant from
Landlord for periods covered by this Sublease under Section 4.05. To the extent
that any operating expenses, common area expenses, utilities or other charges
related to the operation and maintenance of the Leased Premises are not
included in Tenant's operating expense allowance payable to Landlord but are
payable by Tenant, Sublessee shall pay to Tenant 67.58% of any such additional
charges as its pro rata share of such charges. To the extent that, at Tenant's
option, any such items may be separately metered to Sublessee, then Sublessee
shall pay the actual cost of Sublessee's usage thereof. Tenant shall provide to
Sublessee an invoice or other evidence demonstrating Tenant's calculation of
Additional Rent items as such shall become due, along with evidence of the
basis for such calculations, and payment shall be made within ten (10) days of
receipt of such invoice by Sublessee.
4. Execution and Delivery; Master Lease Acknowledgment. This Sublease
shall be of no force or effect unless and until executed and delivered by all
parties hereto. By execution hereof, Sublessee acknowledges that it has
received a complete and correct copy of the Master Lease, including all
addendums and amendments thereto, and is familiar with the terms thereof.
5. No Release. This Sublease shall not release Tenant from any
existing or future duty, obligation or liability to Landlord pursuant to the
Master Lease, nor shall this Sublease change, modify or amend the obligations
of Tenant to Landlord under Master Lease in any manner. In particular, without
prejudice to the generality of the foregoing, this Sublease shall not absolve
Tenant from the requirement set forth in the Master Lease that Tenant obtain
Landlord's prior written approval for any further subleases of the Leased
Premises.
6. Compliance with Master Lease. With respect to the Sublease
Premises, Sublessee shall perform and observe the terms and conditions to be
performed on the part of Tenant under the provisions
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of the Master Lease, except for the payment of rent and additional rent
thereunder, and shall indemnify Tenant and Landlord against all claims,
damages, costs and expenses arising out of Sublessee's failure to perform or
observe any such terms or conditions, subject however to all the express terms
and conditions of this Sublease. If Sublessee shall default hereunder or
thereunder and not cure within the times permitted for cure of such default
under this Sublease or the Master Lease, Tenant shall have the right to
terminate this Sublease upon written notice to Sublessee and also shall have
all other remedies against Sublessee provided for Landlord under the Master
Lease, and if such default shall constitute a default under the Master Lease,
Landlord shall have all remedies available to Landlord thereunder.
7. Defaults. The occurrence of any one or more of the following events
shall constitute a "default" by Sublessee under this Sublease:
(a) if Sublessee shall fail to pay any Rent or Additional Rent
hereunder when and as the same becomes due and payable
(b) if Sublessee shall fail to pay any other sum when and as the
same becomes due and payable and such failure shall continue for more than 15
days; or
(c) If Sublessee shall fail to perform or observe any other term or
condition hereof or the Master Lease to be performed or observed by Sublessee
(including Master Lease terms and conditions applicable to Sublessee as a
result of Section 4 hereof) and such failure shall continue for more than 30
days after written notice thereof to Sublessee from Tenant or Landlord.
8. Effect of Master Lease Termination. In the event the Master Lease
terminates for any reason, including exercise by Tenant of its option under
Section 3.01 of the Master Lease to terminate the Master Lease effective as of
the second anniversary of the Commencement Date (as defined in the Master
Lease), the term of this Sublease shall expire on the effective date of such
early termination of the Master Lease by Tenant.
9. Additional Remedies of Landlord. In addition to Landlord's rights
under Section 8 hereof, in the event Tenant is in default under any of the
terms and provisions of the Master Lease, Landlord may elect to receive
directly from Sublessee all sums due or payable to Tenant by Sublessee pursuant
to this Sublease, and upon receipt of Landlord's notice Sublessee shall
thereafter pay Landlord any sums becoming due or payable under this Sublease,
and Tenant shall receive from Landlord a corresponding credit for such sums
against any and all payments then due or thereafter becoming due from Tenant.
Neither the service of such written notice nor the receipt of such direct
payments shall cause Landlord to assume any of Tenant's duties, obligations
and/or liabilities under this Sublease, nor shall such event impose upon
Landlord the duty or obligation to honor this Sublease, nor subsequently to
accept Sublessee's attornment pursuant to Section 8(a).
10. Tenant Application of Rental Payments. Tenant agrees to hold any
and all payments due under this Sublease in trust to be applied first to the
satisfaction of all of Tenant's obligations under the Master Lease and
hereunder before using any part thereof for any other purpose.
11. Condition of Premises. Sublessee acknowledges and agrees that,
except as expressly set forth in this Sublease, there have been no
representations or warranties made by or on behalf of Landlord or Tenant with
respect to the Premises, the Sublease Premises or the Building or with respect
to the suitability of either for the conduct of Sublessee's business. Sublessee
is taking the Sublease Premises
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"as is" and the taking of possession of the Sublease Premises by Sublessee
shall conclusively establish that the Sublease Premises and the Building were
at such time in satisfactory condition, order and repair.
12. Holdover. Upon failure of Sublessee to surrender possession of the
Sublease Premises upon the expiration of the term of this Sublease or sooner
termination, Sublessee shall pay to Tenant, as an occupancy charge, an amount
equal to 150% of the rate of Rent and other sums required to be paid under this
Sublease with respect to the year immediately preceding the expiration or
sooner termination of the Term of this Sublease, as applied to any period in
which Sublessee shall remain in possession after such expiration or sooner
termination of this Sublease prorated on a daily basis for each day of such
holding over; provided, however, that in such event Sublessee shall not be
released from any further costs, damages or liabilities whether direct,
indirect or consequential, suffered by Tenant and occasioned by Sublessee's
holding over. In the event of such holding over, Sublessee will be considered a
Tenant-at-will.
13. Liability Insurance.
13.1 Sublessee shall procure and maintain, at its sole cost and
expense, throughout the Term of this Sublease and any renewal thereof, a policy
or policies of general public liability insurance against claims for personal
injury, death or property damage occurring upon, in or about the Sublease
Premises with carriers and in amounts reasonably satisfactory to Landlord and
Tenant but with minimum limits of not less than $300,000/$1,000,000 on account
of bodily injuries to or death to any one person or in respect of any one
occurrence, accident or disaster, and $50,000 on account of damage to property
and which in each case otherwise comply with the requirements of Section 9 of
the Master Lease, and all such policies and renewals thereof shall name
Landlord and Tenant as additional insureds. All policies of insurance shall
provide (i) that no material change or cancellation of said policies shall be
made without thirty (30) days' prior written notice to Sublessee, Landlord and
Tenant, (ii) that any loss shall be payable notwithstanding any act or
negligence of Tenant, Sublessee or Landlord which might otherwise result in the
forfeiture of said insurance, and (iii) that the insurance company issuing the
same shall not have right of subrogation against Tenant or Landlord. On or
before the commencement of this Sublease, and thereafter throughout the Term of
this Sublease and any renewal thereof not less than thirty (30) days prior to
the expiration dates of said policy or policies, Sublessee shall provide copies
of policies or certificates of insurance evidencing coverages required by this
Lease. All the insurance required under this Lease shall be issued by insurance
companies authorized to do business in the State of California. The aforesaid
insurance limits may be reasonably increased from time to time by Landlord or
Tenant in order to protect Landlord's or Tenant's interest.
13.2 If any damage to the Premises, the Building, or any part
thereof results from any act or omission of Sublessee, its agents, employees or
invitees, Landlord or Tenant may, in addition to its other remedies under this
Sublease or the Master Lease, at their option, repair such damage and Sublessee
shall, upon demand by Landlord or Tenant, reimburse Landlord or Tenant
forthwith for all costs of making such repairs. Such reimbursement shall be
immediately due and payable as Additional Rent hereunder.
14. Miscellaneous.
14.1. Notices. All notices, consents, requests, demands and other
communications required or permitted hereunder (a) shall be in writing; (b)
shall be sent (unless otherwise provided) by messenger, certified or registered
U.S. mail, a reliable express delivery service or telecopier (with a copy sent
by one of the foregoing means), charges prepaid as applicable, to the
appropriate address(es) or
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number(s) set forth below; and (c) shall be deemed to have been given on the
date of receipt by the addressee (or, if the date of receipt is not a business
day, on the first business day after the date of receipt), as evidenced by (i)
a receipt executed by the addressee (or a responsible person in his or her
office), the records of the person or entity delivering such communication or a
notice to the effect that such addressee refused to claim or accept such
communication, if sent by messenger, U.S. mail or express delivery service, or
(ii) a receipt generated by the sender's telecopier showing that such
communication was sent to the appropriate number on a specified date, if sent
by telecopier. All such communications shall be sent to the following addresses
or numbers, or to such other addresses or numbers as any party may inform the
others by giving five business days' prior notice:
If to Sublessee, hand delivered at the Sublease Premises, or:
United Breweries of America, Inc.
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
If to Tenant:
UBICS, Inc.
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn:
With a copy to:
UBICS, Inc.
000 Xxxxxx Xxxxxx Xxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, President
If to Landlord:
Marin Executive Park
Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: ___________________
14.2. Successors and Assigns. This Sublease shall be binding upon
and inure to the benefit of the parties' respective successors and assigns,
subject at all times, to all agreements and restrictions contained in the
Master Lease, and herein, with respect to further subleasing, assignment, or
other transfer. The agreements contained herein constitute the entire
understanding between the parties with respect to the subject matter hereof,
and supersede all prior agreements, written or oral, inconsistent herewith.
This Sublease may be amended only in writing, signed by all parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the following parties have executed this Sublease
as of the date first written above:
TENANT:
UBICS, INC.
By: ___________________________
Name: _________________________
Title: ________________________
SUBLESSEE:
UNITED BREWERIES OF AMERICA, INC.
By: ___________________________
Name: _________________________
Title: ________________________
ACKNOWLEDGED AND CONSENTED TO EFFECTIVE AS OF ________, 1997.
LANDLORD:
MARIN EXECUTIVE PARK
By: ___________________________
Name: _________________________
Title: ________________________
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EXHIBIT A
Description of Sublease Premises
o The nonexclusive right to use all common areas in the Building, including
the parking areas associated with the Building, on the same terms and
conditions as Tenant and its officers, employees and agents are entitled
to use the same
o Office space consisting of approximately 3,000 square feet in the
[DESCRIBE PORTION] of the Leased Premises