SUBLEASE
This Sublease is entered into as of January 31, 2000 by and between
SwitchSoft Systems, Inc., a Delaware corporation ("Sublessor") and Lineo, Inc.,
a Delaware corporation ("Sublessee"). Terms not specifically defined herein are
as defined in the Master Lease.
A. Sublessor, as Tenant is leasing from EsNet Properties. L.C., a Utah
limited liability company ("Master Lessor") those certain premises located at
000 Xxxxx 000 Xxxx Xxxxxx, Xxxx 00000 ("Premises") pursuant to that certain
lease dated July 20, 1998, (the "Master Lease"). Sublessee acknowledges having
reviewed a copy of the Master Lease, which is attached hereto as EXHIBIT A.
B. Sublessor desires to lease to Sublessee and Sublessee desires to
lease from Sublessor the Sublease Premises (as defined below) on the terms and
conditions set forth in this Sublease.
1. SUBLEASE PREMISES
a. Sublessor leases to Sublessee and Sublessee hires from Sublessor the
following described portion of the Premises together with the appurtenances
thereto, situated in the City of Lindon, County of Utah, State of Utah commonly
known and described as 000 Xxxxx 000 Xxxx, Xxxxx X, located on the first floor
("Sublease Premises"). The Sublease Premises shall consist of approximately
10,000 rentable square feet, which are outlined on EXHIBIT B.
b. Sublessee will be taking possession of the Sublease Premises "as
is," in its condition existing on the date of delivery of the Sublease Premises
to Sublessee. Sublessee acknowledges that Sublessee is leasing the Sublease
Premises based on its own inspection of the Sublease Premises and those of its
agents, and is not relying on any representations or warranties of the Sublessor
regarding the physical condition of the Sublease Premises. Sublessee's taking of
possession of the Sublease Premises shall constitute conclusive evidence that
the Sublease Premises were, as of that date, in good, clean and tenantable
condition. Sublessee acknowledges that the square footages of the Sublease
Promises as specified in Subparagraph 1.a are estimates and that Sublessor does
not warrant the exact square footage of the Sublease Premises. By taking
possession of the Sublease Premises, Sublessee accepts the square footages of
the Sublease Premises as those specified in Subparagraph 1.a above.
c. The Sublease Premises shall have its own separate entrance and
security system as of the Sublease Commencement Date.
2. INCORPORATION OF MASTER LEASE
This Sublease is subject to all of the terms and conditions of the
Master Lease and Sublessee hereby accepts, assumes and agrees to perform all of
the obligations of Sublessor as Sublessee under the Master Lease to the extent
such obligations are applicable to the Sublease Premises and all of the terms
and conditions of the Master Lease are incorporated herein as terms and
conditions of this Sublease (with each reference therein to Landlord, Tenant and
Premises to
be deemed to refer to Sublessor, Sublessee, and Sublease Premises
respectively), excepting only Article 2, Article 3, Section 5.1, Section 5.4,
Article 6, Article 7, Section 8.2, Section 9.1, Section 24.18, Section 24.19,
Exhibit C, Exhibit E and Exhibit G of the Master Lease and as set forth in
Paragraph 9 below. In the event of any conflict or inconsistency between the
incorporated terms of the Master Lease and the terms of the Sublease which
are set forth in full, the terms of the Sublease which are set forth in full
shall prevail to the extent of any such inconsistency, it being understood
that in any event the Sublease provisions are subject to the Master Lease
provisions.
3. TERM AND RENTAL COMMENCEMENT
a. The term of this Sublease shall be for a period of twenty-four (24)
months, plus any partial month at the beginning of the Sublease Term ("Sublease
Term"), commencing on February 1, 2000 ("Commencement Date").
b. In the event of the termination for any reason of Sublessor's
interest as tenant under the Master Lease, then this Sublease shall terminate
therewith without any liability of Sublessor to Sublessee; provided, however,
that Sublessor may be liable to Sublessee for any termination of the Sublease
that results from Sublessor's breach of the Master Lease, so long as such breach
is not caused in whole or in part by Sublessee.
c. In the event the Commencement Date has not occurred by March 31,
2000 for any reason, then Sublessor shall not be liable for any damage caused
thereby, but either party may, by notice in writing to Sublessor within ten (10)
days thereafter, cancel this Sublease, in which event the parties shall be
discharged from all obligations under this Sublease, and Sublessor shall return
to Sublessee any prepaid rent and security deposit.
4. USE
a. Sublessee shall use the Sublease Premises solely for general office
use and for no other purpose without the consent of Sublessor. Sublessee agrees
that its use shall comply with all applicable governmental laws and ordinances,
and that it shall not use or permit the Sublease Premises to be used for any
purposes other than those described above. Sublessee shall not commit or permit
to be committed on the Sublease Premises any act or omission which shall violate
any term or condition of the Master Lease.
b. Sublessee shall be responsible for the installation and cost of any
and all improvements, alterations or other work on or to the Sublease Premises
or to any other portion of the property and/or building of which the Sublease
Premises are a part, required by applicable governmental laws, rules, orders and
ordinances because of the particular use to which the Sublease Premises are put
by Sublessee, including any improvements, alterations or other work required
under the Americans With Disabilities Act of 1990 due to Sublessee's particular
use of the Sublease Premises or due to changes or alterations to the Sublease
Premises made or proposed to be made by Sublessee.
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5. RENTAL
a. Sublessee shall pay Rent Sublessor as follows, without offset or
deduction for the Sublease Premises, in advance, on the first day of each month,
in lawful money of the United States. Rent for the partial month shall be
prorated on the basis of the number of days in such month.
RENT
$ 16,667.00 per month
b. Sublessor acknowledges receipt from Sublessee, on the execution
hereof the sum of $16,667.00 to be applied against rent for the first month of
the Sublease Term to be paid hereunder.
c. In addition to the Rent indicated in Section 5.a above, Sublessee
shall procure and pay directly for its own telephone costs and shall procure its
own janitorial service at Sublessee's cost. Sublessor shall pay for Sublessee's
other utilities. Sublessee shall not be responsible for the payment of Common
Area Expenses (such as taxes, Master Lessor's insurance and common area
maintenance costs), for which Sublessor is responsible under Section 8.2 of the
Master Lease.
6. NOTICES
All notices and demands of any kind required to be given by
Sublessor or Sublessee hereunder shall be in writing and effective the next
business day after depositing with a nationally recognized overnight courier
service such as Federal Express or three (3) days after depositing in the
United States certified mail, return receipt requested, postage prepaid, and
addressed to Sublessor or Sublessee, as the case may be, at the address set
forth below their respective signatures or at such other address as they may
designate from time to time. All rent and other payments due under this
Sublease or the Master Lease shall be made to Sublessor it the same address.
7. HAZARDOUS MATERIALS
Sublessee will indemnify, defend and hold Sublessor harmless from any
judgment, damages, losses, claims, actions, attorneys' fees, consultant's fees,
costs or expenses which result from Sublessee's or any of Sublessee's agents
(including employees, contractors and visitors) use, storage, or disposal of
Hazardous Materials in or about the Sublease Premises. As used herein the term
"Hazardous Materials" will mean and include asbestos, petroleum products and any
and all toxic or hazardous substances, materials or wastes listed in the United
States Department of Transportation Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR 302) and in any
and all amendments to such lists or such substances, materials or wastes
otherwise regulated under applicable local, state or federal law. The provisions
of this paragraph shall survive the expiration or termination of the Sublease.
To the best of Sublessor's knowledge, no Hazardous Materials are currently on
the Premises.
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8. DEFAULTS
The default provisions are articulated in the Master Lease. In
addition, in the event of Sublessee's failure to pay Rent under this Sublease,
which failure is not cured within ten (10) days after Sublessor delivers a
written notice to Sublessee stating the nature and amount of such past due
Rent, then Sublessor shall have no continuing obligation to Sublessee to
maintain the Master Lease for Sublessee's benefit.
9. PROVISIONS OF MASTER LEASE
Notwithstanding anything to the contrary contained in this Sublease:
a. Sublessee shall indemnify and hold both Sublessor and Master Lessor
harmless pursuant to the provisions of Article 18 and any other indemnity
provision of the Master Lease (with reference therein to "Premises" being
replaced with "Sublease Premises");
b. The obligations of Master Lessor under the Master Lease to repair
or replace the Premises shall remain the obligations of Master Lessor and
shall not be assumed by Sublessor;
c. The right of entry of Master Lessor under Article 13 of the Master
Lease shall be the right of each of Master Lessor and Sublessor;
d. Sublessee shall pay Sublessor interest and late charges as provided
in Section 5.3 of the Master Lease, if rent is not received by Sublessor when
due; and
e. Any assignment or subletting by Sublessee of the Sublease or the
Sublease Premises shall be governed by Article 10 of the Master Lease, and the
term "Landlord" in Article 10 shall mean each of Master Lessor and Sublessor.
f. Sublessee shall provide Sublessor with a certificate of Sublessee's
insurance, as required under the Master Lease, naming Sublessor as an additional
insured, prior to Sublessee's occupancy of the Sublease Premises.
10. ALTERATIONS
The current design for configuration of the cubicles in the Sublease
Premises shall not be altered by Sublessee. Sublessee shall make no
alterations, additions or improvements in or to the Sublease Premises without
the prior written consent of Sublessor and Master Lessor. Any Such approved
alterations, additions or improvements shall be installed in accordance with
the terms of the Master Lease. Sublessee shall restore the Premises at the
expiration or earlier termination of the Sublease Term to its condition
existing as of the Commencement Date (including the removal of all
alterations and equipment installed by Sublessee and the repairing of any
resulting damage), reasonable wear and tear excepted.
11. SURRENDER AND HOLDOVER
Upon the expiration or earlier termination of this Sublease,
Sublessee shall promptly quit and surrender to Sublessor the Sublease
Premises broom clean, in the same condition as
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received, ordinary wear and tear and loss by fire and other casualty excepted.
Sublessee shall removal all of its movable furniture and other effects. If
Sublessee fails to so vacate the Sublease Premises on a timely basis as
required, Sublessee shall pay holdover rent at the rate of 150% of Rent, and
shall be responsible to Sublessor and to Master Lessor for all costs, expenses,
attorneys fees and damages (including but not limited to any amounts required to
be paid to third parties who were to have occupied the Sublease Premises)
incurred by Sublessor and/or Master Lessor as a result of such failure to
vacate, plus interest thereon at the rate of the lesser of 18% per annum or the
maximum rate allowed by law, on all amounts not paid by Sublessee within ten
(10) days of demand.
12. SECURITY DEPOSIT
Concurrently with Sublessee's execution of this Sublease, Sublessee
shall deposit With Sublessor the sum of $16,667.00 as a non-interest bearing
security deposit for Sublessee's performance under this Sublease. The amount
paid as a security deposit shall be returned to Sublessee within 14 days
after Sublessee's vacating the Sublease Premises, after first deducting any
sums owing to Sublessor due to a breach by Sublessee of any obligation,
covenant, term or condition of this Sublease. Simultaneously with the return
of the security deposit (less any deductions as described in the preceding
sentence) Sublessor shall provide Sublessee with a reasonably detailed
accounting of any deduction from the security deposit. In the event Sublessee
breaches any obligation, term, condition or covenant under this Sublease,
Sublessor will be entitled but not obligated to use or retain some or all of
this security deposit to compensate for any loss, expense or risk associated
with the breach, all without seeking judicial relief In the event of such
recourse to the security deposit, Sublessor is entitled to require Sublessee
to replenish the security deposit funds on thirty days' written notice. In no
event will Sublessee be entitled to have access to or require any portion of
Sublessor's deposit with the Master Lessor.
13. SIGNAGE
Sublessee shall have the right to have a "Lineo, Inc" sign on the
front door to the Building and in the lobby on the wall adjacent to
Sublessee's office, subject to Sublessor's and Master Lessor's approval as to
size, design and location. Sublessor's approval shall not be unreasonably
withheld.
14. MISCELLANEOUS
a. Each of Sublessor and Sublessee represents and warrants to the
other that it has not had dealings with any real estate broker, finder or
other person who could claim a commission or finder's fee with respect to
this Sublease. Each of Sublessor and Sublessee shall hold the other harmless
from all damages resulting from its breach of the foregoing representation
and warranty.
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b. This Sublease (and delivery of possession of the Sublease Premises
to Sublessee) is subject to Master Lessor approval pursuant to a written letter
of consent. Sublessor $hall use all reasonable efforts to obtain Master Lessor's
approval of this Sublease as soon as possible following execution of this
Sublease but in no event later than twenty (20) days after such execution. In
the event that Master Lessor's approval as stated herein is not obtained within
said twenty (20) day period, then either party may, by written notice to the
other, terminate this Sublease, and each party shall be relieved of any further
obligation to the other with respect to this Sublease.
"SUBLESSOR" "SUBLESSEE"
SwitchSoft Systems, Inc. LINEO, INC
a Delaware corporation a Delaware corporation
By: [ILLEGIBLE] By: /s/ Xxxxx Xxxxxx
------------------------------------------- -------------------------------------------
Print Name: [ILLEGIBLE] Print Name: Xxxxx Xxxxxx
----------------------------------- -----------------------------------
Title: CEO Title: President and CEO
---------------------------------------- ----------------------------------------
Date Executed: 1-31-00 Date Executed: Jan 24, 2000
-------------------------------- --------------------------------
ADDRESS: ADDRESS:
000 Xxxxxxxx Xxxx, Xxxxx 000 000 Xxxxx 000 Xxxx
Xxxxxxx Xxxx, XX 00000 Xxxxxx, Xxxx 00000
Attn: Xxxx Xxxxxxx, Vice President Finance and Attn: Xxxx Xxxx, Chief Financial Officer
Administration and Chief Financial Officer
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EXHIBITS TO BE ATTACHED TO SUBLEASE
Exhibit A Master Lease
Exhibit B Site Plan of Sublease Premises
[GRAPHICS]
Exhibit B - Expansion
Sublease Premises
