SUBLEASE
000 XXXXX 000 XXXX, XXXXX X
This Sublease is entered into as of February 21, 2000 by and between
XXXX.xxx, 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, as successor-in-interest to SwitchSoft
Systems, Inc., 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 second 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 Premises 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 Master Lease provisions.
3. TERM AND RENTAL COMMENCEMENT
a. The term of this Sublease shall be for a period of twelve (12)
months ("Sublease Term"), commencing on March 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 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 to 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 at 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"
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 or 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
wall adjacent to Sublessee's office entrance on the second floor, 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 shall 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"
XXXX.xxx LINEO, INC.
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxx Xxxxxx Xxxx By: /s/ Xxxxx Xxxxxx
------------------------------------------- -------------------------------------------
Print Name: Xxxxxx Xxxxxx Xxxx Print Name: Xxxxx Xxxxxx
----------------------------------- -----------------------------------
Title: President & CEO Title: President & CEO
---------------------------------------- ----------------------------------------
Date Executed: 2/28/2000 Date Executed: 2/14/2000
-------------------------------- --------------------------------
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
