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EXHIBIT 10.2
ASSIGNMENT OF LEASE
This Assignment of Lease (this "Assignment") is made as of March 13,
1998, by and among the following parties:
Continental Seattle Partners Limited Partnership, a Washington limited
partnership ("Landlord"), whose notice address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Toll Free Cellular Inc., a Washington corporation ("Assignor"), whose
notice address is c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Two
Union Square, Suite 5500, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
N2H2, Inc. a Washington corporation ("Assignee"), whose notice
address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. Recitals. This Assignment is made with reference to the following
facts and objectives:
a. Landlord and Assignor, as tenant, entered into that certain
Lease, dated August 31, 1995 (the "Lease"), in which Landlord leased to Assignor
and Assignor leased from Landlord certain premises (designated in the Lease as
Suite 3400) located on the 34th floor of the building commonly known as the Bank
of California Building, located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
b. Assignor desires to assign and delegate all its right, title,
interest, duties and obligations in and under the Lease to Assignee; and
Assignee desires to assume all of Assignor's right, title, interest, duties and
obligations in and under the Lease. Assignee hereby acknowledges its receipt of
a copy of the Lease.
c. Landlord desires to consent to the assignment and assumption
contemplated by this Assignment.
2. Effective Date of Assignment. The assignment and assumption
contemplated by this Assignment shall take effect on March 13, 1998 (the
"Effective Date"), and Assignor shall give possession of the premises subject to
the Lease to Assignee on the Effective Date in a broom clean condition AS IS,
with all defects and reasonable wear and tear. Assignee shall cause March, 1998
rent due under the Lease to be paid concurrent with the execution of this
Assignment by all parties.
3. Assignment and Assumption. As of the Effective Date, Assignor
assigns, delegates and transfers to Assignee all its right, title, interest,
duties and obligations in and under the Lease, and Assignee accepts the
assignment, assumes all of Assignor's right, title, interest, duties and
obligations in and under the Lease and agrees to perform, commencing on the
Effective Date, as a direct obligation to Landlord, all of the provisions of the
Lease.
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4. Landlord's Consent. Landlord hereby consents to the assignment and
assumption set forth herein without waiver of the restriction concerning further
assignment.
5. Assignor's Liability. Landlord and Assignor warrant and represent
that (i) Landlord has completed its performance of its obligations under
Sections 6 and 7 of the Additional Terms and Provisions to the Lease (which are
attached to the Lease as Exhibit C); and (ii) based on Landlord's current actual
knowledge, there exists no uncured default under the Lease by Landlord or
Assignor as of the date hereof, except for Assignor's failure to timely pay
March, 1998 rent. Assignor warrants that as of the Effective Date, there shall
be no uncured default under the Lease by Assignor. Assignor shall remain liable
for the performance of the provisions of the Lease, and shall have the right to
cure any monetary default by Assignee under the Lease by payment to Landlord of
the amount due. Nothing in this Section 5 shall be construed as granting
Assignor a right to retake possession of the Premises or to void this
Assignment.
6. Indemnification. If Assignee defaults under the Lease on or after the
Effective Date, Assignee shall indemnify and hold harmless Assignor from all
costs, liabilities and damages resulting from the default. If Assignee defaults
in its obligations under the Lease and Assignor pays rent to Landlord or
fulfills any of Assignee's other obligations in order to prevent Assignee from
being in default under the Lease, Assignee shall immediately reimburse Assignor
for the amount of rent or costs incurred by Assignor in connection with the
foregoing, together with interest accruing on those sums at the lower of twelve
percent (12%) per annum or the highest legal rate.
7. Default of Lease: Notice to Assignor.
a. Notice to Assignor. Landlord agrees to send to Assignor any
notice of default that Landlord sends to Assignee.
8. Amendment of Lease. Landlord and Assignee may enter into any
agreement that amends the Lease or extends the term of the Lease without
Assignor's prior written consent, but any such amendment or extension shall not
be binding on Assignor.
9. Security Deposit. Upon the full execution of this Assignment by
Landlord, Assignee and Assignor, (a) Landlord shall return all of the deposit
then held by Landlord pursuant to Section 5 of the Lease and Section 11 of the
Additional Terms and Provisions to the Lease to Assignor; and (b) Assignee shall
deposit with Landlord Twenty Thousand Dollars ($20,000) as a security deposit to
be held and applied subject to the provisions of Section 5 of the Lease, Section
11 of the Additional Terms and Provisions to the Lease and other applicable
provisions of the Lease.
10. Consideration for Assignment. In partial consideration of Assignor's
agreements and covenants contained herein, Assignee shall execute and deliver to
the Assignor concurrently
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with Landlord's approval of this Assignment a promissory note in the principal
amount of $81,000 on the terms stated in and in the form of the Promissory Note
attached hereto as Attachment A. Failure by Assignee to pay all or any portion
of the Promissory Note shall not in any way effect the validity of this
Assignment.
11. Extension Option. Assignee covenants that it will not exercise any
right granted the Tenant under the Lease to extend the Lease term and all such
extension rights are hereby terminated.
12. Miscellaneous.
a. Attorneys' Fees. If any party commences an action against any
of the other parties arising out of or in connection with this Assignment, the
prevailing party or parties shall be entitled to recover from the losing party
or parties reasonable attorneys' fees and cost of suit.
b. Notices. Any notice or communication that any party desires or
is required to give to any of the other parties hereunder or under the Lease
shall be in writing and either (i) served personally, (ii) sent by reputable
courier service providing proof of delivery; or (iii) sent by return receipt
requested, prepaid, first class registered or certified mail, addressed to the
other party at the address set forth in the introductory paragraph of this
Assignment. Any party may change its address by notifying the other parties of
the change of address. Notice shall be deemed received upon delivery evidenced
by proof of delivery or return receipt.
c. Broker Fees. Each of Assignor and Assignee represents and
warrants to the other and Landlord that it has had no dealings with any real
estate broker or agents in connection with this Assignment, other than (i)
Washington Partners, Inc. ("Assignee's Agent"), which represented Assignee, and
(ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of Washington, Inc./▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Assignor's
Agent"), which represented Assignor. Assignor and Assignee hereby agree and
acknowledge that Assignor shall be solely responsible for paying all commissions
and other compensations owed to Assignor's Agent; and Assignee shall be solely
responsible for paying all commissions and other compensations owed to
Assignee's Agent, in connection with the transactions contemplated by this
Assignment.
d. Successors. This Assignment shall be binding on and inure to
the benefit of the parties and their successors and assigns.
e. Entire Agreement. This Assignment contains all of the terms of
the agreements among Landlord, Assignor and Assignee with respect to the subject
matter of this Assignment, and supersedes all prior discussions and agreements
among Landlord, Assignor and Assignee, including without limitation the
non-binding letter of intent dated February 12, 1998, signed by Assignor and
Assignee. Except as specifically modified pursuant to this Assignment, all of
the terms and conditions of the Lease shall remain in full force and effect.
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f. Counterparts. This Assignment may be executed in two or more
counterparts, each of which will be deemed to be an original, but all of which
together shall constitute one and the same instruments.
LANDLORD
CONTINENTAL SEATTLE PARTNERS LIMITED
PARTNERSHIP, a Washington limited partnership
By: The ▇▇▇▇▇▇ Company, Manager
By: /s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
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Title: COO
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ASSIGNOR
TOLL FREE CELLULAR INC, a Washington
corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: CEO
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ASSIGNEE
N2H2, INC., a Washington corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: COO
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Attachment: Promissory Note
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ▇▇▇▇ ▇▇▇▇▇▇ is
the person who appeared before me, and said person acknowledged that he signed
this instrument, on oath stated that he is authorized to execute the instrument
and acknowledged it as the COO of N2H2 Inc., a Washington corporation, to be the
free and voluntary act of such partnership for the uses and purposes mentioned
in the instrument.
DATED: March 13, 1998 /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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NOTARY PUBLIC for the State of Washington,
residing at
Seattle
-----------------------------------------
My appointment expires: 9/9/00
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ▇▇▇▇▇ ▇▇▇ who
appeared before me, and said person acknowledged that he signed this instrument,
on oath stated that he was authorized to execute the instrument and acknowledged
it as the COO of The ▇▇▇▇▇▇ Company, in its capacity as the Manager of
Continental Seattle Partners Limited Partnership, a Washington limited
partnership, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
DATED: March 17, 1998 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Print Name: _____________________________
NOTARY PUBLIC for the State of Washington,
residing at
Bellevue
-----------------------------------------
My appointment expires: 9-23-99
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ▇▇▇▇ ▇▇▇▇▇ is
the person who appeared before me, and said person acknowledged that he signed
this instrument, on oath stated that he is authorized to execute the instrument
and acknowledged it as the Chief Executive Officer of Toll Free Cellular Inc., a
Washington corporation, to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
DATED: March 13, 1998 /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
NOTARY PUBLIC for the State of Washington,
residing at
Seattle
-----------------------------------------
My appointment expires: 9/9/00
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ADDENDUM TO ASSIGNMENT OF LEASE
THIS ADDENDUM TO THE ASSIGNMENT OF LEASE is made and entered into this 13th day
of March, 1998, by and between ▇▇▇▇▇▇ REALTY SERVICES, INC., a Washington
corporation, in its capacity as Liquidating Agent for Continental Seattle
Partners, Limited Partnership, as Landlord, and TOLL FREE CELLULAR INC., a
Washington corporation, as Assignor, and N(2)H(2), INC., a Washington
corporation, as Assignee.
ADDITIONAL TERMS AND CONDITIONS
1. Additional Security. Assignee shall deposit with Landlord $15,500.00 to
be held as additional security deposit ("Additional Security Deposit")
which shall be paid to Landlord in four equal monthly installments of
$3,875.00. The Additional Security Deposit shall be paid at the time of
Tenant's regular monthly rental payment beginning on May 1, 1998.
2. Release of Additional Security Deposit. Provided that Tenant has not
been in default at any time during the preceding twenty-four months and
upon written notice from Tenant between one (1) and three (3) months
prior to March 1, 2000, Landlord shall apply the Additional Security
Deposit to the rent owing on March 1, 2000.
DATED: This 16th day of March, 1998.
LANDLORD: ▇▇▇▇▇▇ REALTY SERVICE, INC., a ASSIGNOR: TOLL FREE CELLULAR,
Washington corporation, as Liquidating Agent INC., a Washington corporation
for Continental Seattle Partners, Limited
Partnership
By /s/ ▇▇▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇▇ ▇▇▇ ----------------------------
------------------------------------------ ▇▇▇▇ ▇▇▇▇▇, C.E.O.
▇▇▇▇▇ ▇▇▇, President
ASSIGNEE: N2H2, Inc.,
a Washington corporation
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, C.O.O.
