**Exhibit 10.2**

 

SUBLEASE AGREEMENT

 

This SUBLEASE AGREEMENT (“Sublease”) is made and entered into as of the         day of October 2003 by andbetween Symantec Corporation, a Delaware corporation (“Subtenant”) and SentoCorporation, Inc., a Utah corporation (“Sublandlord”).

 

WHEREAS, Pracvest, a Utah limited liability company as landlord(“Landlord”), and Sento Corporation, Inc. as tenant (“Tenant”), entered into alease dated July 31, 1998 (“Master Lease”) whereby Landlord leased to Tenantthe entire two (2) floors (“Master Premises”) of the building located at 808 E.Utah Valley Dr., American Fork, UT (the “Building”), as more particularlydescribed in the Master Lease, upon the terms and conditions containedtherein.  All capitalized terms usedherein shall have the same meaning ascribed to them in the Master Lease unlessotherwise defined herein.  A copy of theMaster Lease is attached hereto as Exhibit A and made a part hereof.

 

WHEREAS, Sublandlord and Subtenant wish to enter into a sublease ofthat portion of the Master Premises shown cross-hatched in black on thedemising plan annexed hereto as Exhibit B and made a part hereof(“Sublease Premises”) on the terms and conditions hereafter set forth.

 

NOW, THEREFORE, in consideration of the mutual covenants hereincontained, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto mutuallycovenant and agree as follows:

 

1.               Demise.  Sublandlord hereby subleases and demises toSubtenant, and Subtenant hereby hires and subleases from Sublandlord, theSublease Premises (which the parties stipulate contain **19,678 rentable** square feetwhich contains the entire 1st floor except approximately 200rentable square feet in the data room and the main lobby area which Sublandlordshall retain), upon and subject to the terms, covenants and conditionshereinafter set forth.

 

2.               StagedOccupancy.  Subtenant shall gainpossession of approximately 50% of the Premises or 9,839 rentable square feetconstituting the north half of the Premises on or before December 15,2003.  Then on or about January 1, 2004,Subtenant shall gain possession of the remaining 50% of the Premises

 

3.                                       LeaseTerm.  The term of this Sublease(“Term”) shall be for twenty-one and one-half (211⁄2)months, commencing on theearlier of (i)  December 15, 2003, or (ii) the date upon whichSubtenant, or any person occupying any of the Sublease Premises withSubtenant’s permission, commences business operations from the Sublease Premises(“Sublease Commencement Date”) and ending, unless sooner terminated as providedherein, on the last day of September, 2005 (“Sublease Expiration Date”).

 

4.                                       Use.  The Sublease Premises shall be used andoccupied by Subtenant for the uses permitted under and in compliance withArticle VII of the Master Lease and for no other purpose.

 

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5.                                       Subrental.

 

(a)                                  BaseRental.  Beginning with the SubleaseCommencement Date and thereafter during the Term of this Sublease and ending onthe Sublease Expiration Date, Subtenant shall pay to Sublandlord the followingmonthly installments of base rent (“Base Rental”):

 
| Months 1-22: |   | $16,565.00/month |
|--------------|--------|------------------|

 

The first monthly installment of Base Rental shall be paid by Subtenantupon the execution of this Sublease. Base Rental and additional rent (including without limitation, latefees) shall hereinafter be collectively referred to as “Rent.”

 

(b)                                 Prorations.  If the Sublease Commencement Date is not thefirst (1st) day of a month, or if the Sublease Expiration Date is not the lastday of a month, a prorated installment of monthly Base Rental based on a thirty(30) day month shall be paid for the fractional month during which the Termcommenced or terminated.

 

(c)                                  AdditionalRent.  Beginning with the SubleaseCommencement Date and continuing to the Sublease Expiration Date, Subtenantshall pay to Sublandlord as additional rent for this subletting all special orafter-hours cleaning, heating, ventilating, air-conditioning, elevator and otherBuilding charges incurred at the request of, or on behalf of, Subtenant, orwith respect to the Sublease Premises and all other additional expenses, costsand charges payable to Landlord in connection with Subtenant’s use of theSublease Premises.

 

(d)                                 OperatingExpenses.  Beginning with theSublease Commencement Date and thereafter during the Term of this Sublease,Subtenant shall pay to Sublandlord as additional rent for this subletting fiftypercent (50%) (“Subtenant’s Share”) of the amount that Sublandlord, as Tenant,has to pay Landlord and/or vendors directly (i.e. utilities, janitorial, realestate taxes, insurance and repairs and maintenance), as Tenant’s ProportionateShare pursuant to Section 3.03, 3.05, 8.01, 8.03, 8.04, 10.02, 11.01, 11.02,and 12.01 of the Master Lease. Subtenant’s Share is a percentage that reflects the ratio of therentable square feet in the Sublease Premises to the rentable square feet inthe Master Premises.

 

(e)                                  Paymentof Rent.  Except as otherwisespecifically provided in this Sublease, Rent shall be payable in lawful moneywithout demand, and without offset, counterclaim, or setoff in monthlyinstallments, in advance, on the first day of each and every month during theTerm of this Sublease.  All of said Rentis to be paid to: Sento Corporation at 808 E. Utah Valley Drive, American Fork, Utah 84004 or at such other place orto such agent and at such place as Sublandlord may designate by notice toSubtenant.  Any additional rent payableon account of items that are not payable monthly by Sublandlord to Landlordunder the Master Lease is to be paid to Sublandlord as and when such items arepayable by Sublandlord to Landlord under the Master Lease, unless a differenttime for payment is elsewhere stated herein. Upon written request therefor,

 

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Sublandlordagrees to provide Subtenant with copies of any statements or invoices receivedby Sublandlord from Landlord pursuant to the terms of the Master Lease.

 

(f)                                    LateCharge.  Subtenant shall pay toSublandlord an administrative charge One and One Half Percent (1.5%) per monthor the highest rate allowed by applicable law (“Interest Rate”) on all past-dueamounts of Rent payable hereunder, such charge to accrue from the date uponwhich such amount was due until paid.

 

IntentionallyDeleted.

 

7.                                       Signage.  Subtenant is granted the right, at or aboutthe inception of the Term of this Sublease, to install an appropriate signidentifying Subtenant on the Building, subject to Landlord’s andSublandlord’s prior written approval. Except for the foregoing, Subtenant shall have no right to maintainSubtenant identification signs in any other location in, on, or about thePremises.  The size, design, color andother physical aspects of all such permitted signs shall also be subject toLandlord’s and Sublandlord’s prior written approval and also shall be subjectto any covenants, conditions or restrictions encumbering the Sublease Premisesand any applicable municipal or other governmental permits and approvals.  The cost of all such signs, including theinstallation, maintenance and removal thereof, shall be at Subtenant’s solecost and expense.  If Subtenant fails tomaintain its signs, or if Subtenant fails to remove same upon the expiration orearlier termination of this Sublease and repair any damage caused by suchremoval, then Sublandlord may do so at Subtenant’s expense and Subtenant shallreimburse Sublandlord for all actual costs incurred by Sublandlord to effectsuch removal.

 

8.                                       Parking.  Subtenant shall have the right, during theTerm of this Sublease, to use up to One Hundred Twelve (112) parking spaces inthe parking facilities of the Building as set forth inSection      of the Master Lease.  All such parking spaces shall be at therates and subject to the terms and conditions set forth in the Master Lease,and Subtenant shall reimburse Sublandlord, upon demand, for those amountsbilled to Sublandlord by Landlord for said parking privileges.

 

9.                                       Back-UpGenerator and UPS.  Subtenant hasagreed to purchase the existing back-up generator and UPS system at thebuilding at an agreed upon price of $100,000.00 plus sales tax of $6,250.00 tobe paid by Symantec to Sento within 30 days from the commencement of thisSublease.  Landlord acknowledges thatuse of the back-up generator and the UPS system attached to the building issolely for Symantec’s and Sento’s use and no other tenant or future tenant inthe building. If, during the term of this Sublease, the capacity of the back-upgenerator and UPS equipment becomes inadequate to service both Symantec andSento, then Symantec will make reasonable upgrades to the equipment and reducefrom Symantec’s Base Rental the amount of the reasonable upgrades.   It is expressly understood that Sento shallhold Symantec harmless from any and all losses, costs, expenses and the like inthe event the back-up generator or UPS equipment fail to perform, regardless ofthe reason for said failure including but not limited to Symantec’s negligence.

 

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10.                                 Incorporationof Terms of Master Lease.

 

(g)                                 ThisSublease is subject to and subordinate to the Master Lease.  Subject to the modifications set forth inthis Sublease, the terms of the Master Lease are incorporated herein byreference, and shall, as between Sublandlord and Subtenant (as if they wereLandlord and Tenant, respectively, under the Master Lease) constitute the termsof this Sublease except to the extent that they are inapplicable to,inconsistent with, or modified by, the terms of this Sublease.  In the event of any inconsistencies betweenthe terms and provisions of the Master Lease and the terms and provisions ofthis Sublease, the terms and provisions of this Sublease shall govern.  Subtenant acknowledges that it has reviewedthe Master Lease and is familiar with the terms and conditions thereof.

 

(h)                                 Forthe purposes of incorporation herein, the terms of the Master Lease are subjectto the following additional modifications:

 

### (i)                                     Inall provisions of the Master Lease (under the terms thereof and without regardto modifications thereof for purposes of incorporation into this Sublease)requiring the approval or consent of Landlord, Subtenant shall be required toobtain the approval or consent of both Sublandlord and Landlord.

###  

### (ii)                                  Inall provisions of the Master Lease requiring Tenant to submit, exhibit to,supply or provide Landlord with evidence, certificates, or any other matter orthing, Subtenant shall be required to submit, exhibit to, supply or provide, asthe case may be, the same to both Landlord and Sublandlord.  In any such instance, Sublandlord shalldetermine if such evidence, certificate or other matter or thing shall besatisfactory.

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### (iii)                               Sublandlordshall have no obligation to restore any portion of the Sublease Premises afterany destruction or taking by eminent domain.

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(i)                                     Thefollowing provisions of the Master Lease are specifically excluded: Article 1,Section 3.01, 3.02, 3.04, Article IV,V, VI, XXVI and Section 27.12.

 

11.                                 Subtenant’sObligations.  Subtenant covenantsand agrees that all obligations of Sublandlord under the Master Lease shall bedone or performed by Subtenant with respect to the Sublease Premises, except asotherwise provided by this Sublease, and Subtenant’s obligations shall run toSublandlord and Landlord as Sublandlord may determine to be appropriate or berequired by the respective interests of Sublandlord and Landlord.  Subtenant agrees to indemnify Sublandlord,and hold it harmless, from and against any and all claims, damages, losses,expenses and liabilities (including reasonable attorneys’ fees) incurred as aresult of the non-performance, non-observance or non-payment of any ofSublandlord’s obligations under the Master Lease that, as a result of this Sublease,became an obligation of Subtenant.  IfSubtenant makes any payment to Sublandlord pursuant to this indemnity,Subtenant shall be subrogated to the rights of Sublandlord concerning saidpayment.  Subtenant shall not do, norpermit to be done, any act or thing that is, or with notice or the passage oftime would be, a default under this Sublease or the Master Lease.

 

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12.                                 Sublandlord’sObligations.  Sublandlord agreesthat Subtenant shall be entitled to receive all services and repairs to beprovided by Landlord to Sublandlord under the Master Lease.  Subtenant shall look solely to Landlord forall such services and shall not, under any circumstances, seek nor requireSublandlord to perform any of such services, nor shall Subtenant make any claimupon Sublandlord for any damages that may arise by reason of Landlord’s defaultunder the Master Lease.  Any conditionresulting from a default by Landlord shall not constitute as betweenSublandlord and Subtenant an eviction, actual or constructive, of Subtenant,and no such default shall excuse Subtenant from the performance or observanceof any of its obligations to be performed or observed under this Sublease, orentitle Subtenant to receive any reduction in or abatement of the Rent providedfor in this Sublease.  In furtherance ofthe foregoing, Subtenant does hereby waive any cause of action and any right tobring any action against Sublandlord by reason of any act or omission ofLandlord under the Master Lease. Sublandlord covenants and agrees with Subtenant that Sublandlord willpay all fixed rent and additional rent payable by Sublandlord pursuant to theMaster Lease to the extent that failure to perform the same would adverselyaffect Subtenant’s use or occupancy of the Sublease Premises. Default bySubtenant.  In the event Subtenant shallbe in default of any covenant of, or shall fail to honor any obligation underthis Sublease, Sublandlord shall have available to it against Subtenant all ofthe remedies available (a) to Landlord under the Master Lease in the eventof a similar default on the part of Sublandlord thereunder or (b) at lawor in equity.

 

13.                                 QuietEnjoyment.  So long as Subtenantpays all of the Rent due hereunder and performs all of Subtenant’s otherobligations hereunder, Sublandlord shall do nothing to affect Subtenant’s rightto peaceably and quietly have, hold and enjoy the Sublease Premises.

 

14.                                 Notices.  Anything contained in any provision of thisSublease to the contrary notwithstanding, Subtenant agrees, with respect to theSublease Premises, to comply with and remedy any default in this Sublease orthe Master Lease which is Subtenant’s obligation to cure, within the periodallowed to Sublandlord under the Master Lease, even if such time period isshorter than the period otherwise allowed therein due to the fact that noticeof default from Sublandlord to Subtenant is given after the correspondingnotice of default from Landlord to Sublandlord.  Sublandlord agrees to forward to Subtenant, promptly upon receiptthereof by Sublandlord, a copy of each notice of default received bySublandlord in its capacity as Tenant under the Master Lease.  Subtenant agrees to forward to Sublandlord,promptly upon receipt thereof, copies of any notices received by Subtenant fromLandlord or from any governmental authorities. All notices, demands and requests shall be in writing and shall be senteither by hand delivery or by a nationally recognized overnight courier service(e.g., Federal Express), in either case return receipt requested, to theaddress of the appropriate party. Notices, demands and requests so sent shall be deemed given when thesame are received or upon refusal to accept delivery.  Notices to Subtenant shall be sent to the attention of:

 

 

Symantec Corporation

20330 Stevens Creek Blvd.

Cupertino, CA 95014

Attn:  Legal Department / General Counsel

 

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and,

 

Symantec Corporation

2500 Broadway Avenue

Santa Monica, CA 90404

Attn:  Facilities Director, TheAmericas

 

 

Notices toSublandlord shall be sent to the attention of:

 

Sento Corporation808 E. Utah Valley Dr.American Fork, UT 84003

 

Attn:  Stan Cutler

 

15.                                 Broker.  Sublandlord and Subtenant represent andwarrant to each other that, with the exception of NAI Utah Real Estate, Inc.(“Broker”), no brokers were involved in connection with the negotiation orconsummation of this Sublease. Subtenant agrees to pay the commission of the Broker pursuant to aseparate agreement.  Each party agreesto indemnify the other, and hold it harmless, from and against any and allclaims, damages, losses, expenses and liabilities (including reasonableattorneys’ fees) incurred by said party as a result of a breach of thisrepresentation and warranty by the other party.

 

16.                                 Conditionof Premises.  Subtenant acknowledgesthat it is subleasing the Sublease Premises “as-is” and that Sublandlord is notmaking any representation or warranty concerning the condition of the SubleasePremises and that Sublandlord is not obligated to perform any work to preparethe Sublease Premises for Subtenant’s occupancy.  Subtenant acknowledges that it is not authorized to make or doany alterations or improvements in or to the Sublease Premises, except aspermitted by the provisions of this Sublease and the Master Lease, and that itmust deliver the Sublease Premises to Sublandlord on the Sublease ExpirationDate in the condition required by the Master Lease.

 

17.                                 Consentof Landlord.  Section 14.01 ofthe Master Lease requires Sublandlord to obtain the written consent of Landlordto this Sublease.  Sublandlord shallsolicit Landlord’s consent to this Sublease promptly following the executionand delivery of this Sublease by Sublandlord and Subtenant.  In the event Landlord’s written consent tothis Sublease has not been obtained within ninety (90) days after the executionhereof, then this Sublease may be terminated by either party hereto upon noticeto the other, and upon such termination neither party hereto shall have anyfurther rights against or obligations to the other party hereto.

 

18.                                 Terminationof the Lease.  If for any reason theterm of the Master Lease shall terminate prior to the Sublease Expiration Date,this Sublease shall automatically be terminated, and Sublandlord shall not beliable to Subtenant by reason thereof, unless said termination shall have beencaused by the default of Sublandlord under the Master Lease and saidSublandlord’s default was not as a result of a Subtenant’s default hereunder.

 

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19.                                 Assignmentand Subletting.

 

(j)                                     Independentof and in addition to any provisions of the Master Lease, including withoutlimitation the obligation to obtain Landlord’s consent to any assignment, it isunderstood and agreed that Subtenant shall have no right to sublet the SubleasePremises or any portion thereof or any right or privilege appurtenant thereto;provided, however, that, subject to the provisions of this Section 18,Subtenant shall have the right to assign this Sublease or any interest therein,and to suffer or permit any other person (other than agents, servants orassociates of the Subtenant) to occupy or use the Sublease Premises, only uponthe prior written consent of Sublandlord and Landlord, which consent shall notbe unreasonably withheld.  Anyassignment by Subtenant without Sublandlord’s prior written consent shall bevoid and shall, at the option of Sublandlord, terminate this Sublease.

 

(k)                                  Subtenantshall advise Sublandlord by notice of (i) Subtenant’s intent to assignthis Sublease, (ii) the name of the proposed assignee and evidencereasonably satisfactory to Sublandlord that such proposed assignee iscomparable in reputation, stature and financial condition to tenants thenleasing comparable space in comparable buildings, and (iii) the terms ofthe proposed assignment.  Sublandlordshall, within thirty (30) days of receipt of such notice, and any additionalinformation requested by Landlord concerning the proposed assignee’s financialresponsibility, elect one of the following:

 

### (i)                                     Consentto such proposed assignment;

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### (ii)                                  Refusesuch consent, which refusal shall be on reasonable grounds; or

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### (iii)                               Electto terminate the Sublease, effective thirty (30) days after Sublandlorddelivers notice of its election to Subtenant.

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(l)                                     Inthe event that Sublandlord shall consent to an assignment under the provisionsof this Section 18, Subtenant shall pay Sublandlord’s reasonable processingcosts and reasonable attorneys’ fees incurred in giving such consent.  Notwithstanding any permitted assignment,Subtenant shall at all times remain directly, primarily and fully responsibleand liable for all payments owed by Subtenant under the Sublease and forcompliance with all obligations under the terms, provisions and covenants ofthe Sublease.  If, for any proposedassignment, Subtenant receives Rent or other consideration, either initially orover the term of the assignment, in excess of the Rent required by thisSublease, after a deduction for the following: (a) any brokerage commission paid by Subtenant in connectiontherewith and (b) any reasonable attorneys’ fees in connection withpreparing and negotiating an assignment document (“Profit”), then Subtenantshall pay to Sublandlord as additional Rent, Fifty percent (50%) of such Profitor other consideration received by Subtenant within five (5) days of itsreceipt by Subtenant or, in the event the assignee makes payment directly toSublandlord, Sublandlord shall refund Fifty percent (50%) of the Profit to Subtenantafter deducting (a) and (b) above.

 

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(m)                               Occupancy of all or part of the SubleasePremises by parent, subsidiary, or affiliated companies or a joint venturepartnership of Subtenant shall not be deemed an assignment or sublettingprovided that such parent, subsidiary or affiliated companies or a jointventure partnership were not formed as a subterfuge to avoid the obligation ofthis Section 18.  If Subtenant isa corporation, unincorporated association, trust or general or limitedpartnership, then the sale, assignment, transfer or hypothecation of anyshares, partnership interest, or other ownership interest of such entity, thedissolution, merger, consolidation, or other reorganization of such entity orthe sale, assignment, transfer or hypothecation of the assets of such entity,shall not be deemed an assignment or sublease subject to the provisions of thisSection 18.

 

20.                                 Limitationof Estate.  Subtenant’s estate shallin all respects be limited to, and be construed in a fashion consistent with,the estate granted to Sublandlord by Landlord. Subtenant shall stand in the place of Sublandlord and shall defend,indemnify and hold Sublandlord harmless with respect to all covenants,warranties, obligations, and payments made by Sublandlord under or required ofSublandlord by the Master Lease with respect to the Subleased Premises.  In the event Sublandlord is prevented fromperforming any of its obligations under this Sublease by a breach by Landlord ofa term of the Master Lease, then Sublandlord’s sole obligation in regard to itsobligation under this Sublease shall be to use reasonable efforts in diligentlypursuing the correction or cure by Landlord of Landlord’s breach.

 

21.                                 EntireAgreement.  It is understood andacknowledged that there are no oral agreements between the parties heretoaffecting this Sublease and this Sublease supersedes and cancels any and allprevious negotiations, arrangements, brochures, agreements and understandings,if any, between the parties hereto or displayed by Sublandlord to Subtenantwith respect to the subject matter thereof, and none thereof shall be used tointerpret or construe this Sublease. This Sublease, and the exhibits and schedules attached hereto, containall of the terms, covenants, conditions, warranties and agreements of theparties relating in any manner to the rental, use and occupancy of the SubleasePremises and shall be considered to be the only agreements between the partieshereto and their representatives and agents. None of the terms, covenants, conditions or provisions of this Subleasecan be modified, deleted or added to except in writing signed by the partieshereto.  All negotiations and oralagreements acceptable to both parties have been merged into and are includedherein.  There are no otherrepresentations or warranties between the parties, and all reliance withrespect to representations is based totally upon the representations andagreements contained in this Sublease.

 

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IN WITNESSWHEREOF, the parties have entered into this Sublease as of the date firstwritten above.

 
|   | SUBTENANT:               |
|--------|--------------------------|
|   |                     |
|   | Symantec Corporation,    |
|   | a Delaware Corporation   |
|   |                     |
|   |                     |
|   | By:                      |   |   |
|   |                     |
|   | Its:                     |   |   |
|   |                     |
|   |                     |
|   | SUBLANDLORD:             |
|   |                     |
|   | Sento Corporation, Inc., |
|   | a Utah Corporation       |
|   |                     |
|   |                     |
|   | By:                      |   |   |
|   |                     |
|   | Its:                     |   |   |

 

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EXHIBIT A

 

COPY OF MASTER LEASE

 

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EXHIBIT B

 

DEMISING PLAN

 

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EXHIBIT C

 

CONSENT

 

The undersigned Landlord under the Lease hereby consents to theforegoing Sublease conditioned upon the following to which all parties agrees:

 

1.                                       Subtenant’sagreement to perform Sublandlord’s obligations under the Lease during theSublease term is for the benefit of both Sublandlord and Landlord.

 

2.                                       Subtenant’sagreement to perform such obligations shall not relieve Subtenant of itsprimary and unconditional liability for payment of rental and other charges andperformances of Sublandlord’s obligations as Tenant under the Lease during thefull term of the Lease.

 

 
| LANDLORD:                        |   | SUBLANDLORD:             |
|----------------------------------|--------|--------------------------|
|                             |   |                     |
| PRACVEST                         |   | Sento Corporation, Inc., |
| a Utah Limited Liability Company |   | a Utah Corporation       |
|                             |   |                     |
|                             |   |                     |
| By:                              |   |                     | By: |   |
|                             |   |                     |
| Its:                             |   |                     | Its: |   |
|                             |   |                     |
|                             |   |                     |
| SUBTENANT:                       |   |                     |
|                             |   |                     |
| Symantec Corporation,            |   |                     |
| a Delaware Corporation           |   |                     |
|                             |   |                     |
|                             |   |                     |
| By:                              |   |                     |   |
|                             |   |                     |
| Its:                             |   |                     |   |

 

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**LANDLORD’S CONSENT TO SUBLEASE**

 

The undersigned Landlord under the Lease hereby consents to theforegoing Sublease conditioned upon the following to which all parties agrees:

 

3.                                       Subtenant’sagreement to perform Sublandlord’s obligations under the Lease during theSublease term is for the benefit of both Sublandlord and Landlord.

 

4.                                       Subtenant’sagreement to perform such obligations shall not relieve Subtenant of itsprimary and unconditional liability for payment of rental and other charges andperformances of Sublandlord’s obligations as Tenant under the Lease during thefull term of the Lease.

 

 
| LANDLORD:                        |
|----------------------------------|
|                             |
| PRACVEST                         |
| a Utah Limited Liability Company |
|                             |
|                             |
| By:                              |   |   |
|                             |
| Its:                             |   |   |
|                             |
| Date:                            |   | . |
|                                  |  |  |  |  |

 

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