Exhibit 10.2
AMENDMENT AND NOVATION AGREEMENT
This Amendment and Novation Agreement ("Agreement") is effective this
27th day of October, 1999 ("Effective Date") by and among Xxxxxxx X. Xxxxx
Properties ("Lessor"), Connect Northwest LLC ("CNW"), and CyPost Corporation, a
Delaware corporation ("CyPost").
WHEREAS, Lessor and CNW have entered into a Building Lease ("Lease")
on the 30th day of April 1998 for Space #1 at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
Xxxxxx, XX, also known as "The Carnation Building", and
WHEREAS, CNW and CyPost have requested Lessor to consent to the
transfer of the Lease from CNW to CyPost in connection with the closure of the
proposed Asset Purchase Agreement between CNW and CyPost, and
WHEREAS, Lessor, CNW and CyPost are willing to transfer responsibility
under the Lease from CNW to CyPost if certain amendments are made to the Lease,
THEREFORE, Lessor, CNW and CyPost hereby agree to the following
changes to the Lease:
1. Rent. The rent schedule in Section 5 of the Lease is hereby amended
to read as follows:
MONTHS MONTHLY RENT
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1--3 $0.00
4 1,000.00
5--16 2,000.00
17--28 2,800.00
29--40 3,000.00
41--52 3,200.00
53--64 3,400.00
In addition, CyPost hereby agrees to pay all charges for electricity to the
leased premises. The electricity for the leased premises shall be directly
metered.
2. Novation. Lessor, CNW and CyPost hereby agree that, as of the
Effective Date of this Agreement, CyPost will be substituted as the Lessee under
the Lease and will assume all of rights and obligations under the Lease accruing
on and after the Effective Date of this Agreement. Lessor, CNW and CyPost
further agree that CNW will remain responsible for any and all rights and
responsibilities under the Lease which accrued before the Effective Date of this
Agreement, and that as of the Effective Date, CNW hereby transfers to CyPost all
of CNW's right, title and interest in and to the Lease.
3. Representation. CNW represents that it has paid to Lessor all
monies due and owing pursuant to the Lease and agrees to pay Lessor any
additional sums due for any period prior to the Effective Date of this
Agreement.
4. Estoppel. CNW has no knowledge of any breach of default by Lessor
under the Lease which remains uncured. The Lease is the only agreement to which
Lessor and CNW have agreed regarding the leased premises, and it remains in full
force and effect. The Lease has not been modified or amended, except as amended
pursuant to this Agreement.
5. Termination and Additional Remedies. The third sentence of Section
19 of the Lease is hereby amended to read in its entirety as follows:
"But notwithstanding such reentry by the Lessor, and subject to the
Lessor's duty to mitigate all of its damages, the liability of the Lessee for
the rent provided herein shall not be extinguished for the balance of the term
of this lease, and Lessee covenants and agrees to make good to the Lessor any
additional reasonable expenses of Lessor as a result of such re-entering and
re-letting of the Premises, including reasonable real estate commissions and
reasonable remodeling expenses incurred by Lessor as a result of the same."
6. Counterparts. This Agreement may be signed in multiple counterparts
which may be transmitted via facsimile, with the same effect as if all parties
had signed the same document, even though all signatures may not appear on the
same counterpart. All counterparts shall be construed as and shall constitute
one and the same agreement. In proving this Agreement, it will not be necessary
to produce or account for the original counterpart signed by the party against
whom the proof is being presented.
7. Except as expressly amended herein, all other terms and conditions
of the Lease remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates shown below, to be effective on the date first above written.
Xxxxxxx X. Xxxxx Properties Connect Northwest Internet Services,
by Windemere Properties, its agent LLC
/s/ Xxxxx X. Xxxx
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Signature Signature
/s/ Xxxxx X. Xxxx
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Name Name
/s/ Manager 10/27/99
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Title Date Title Date
2
ASSIGNMENT OF LEASE AND ACCEPTANCE
FOR VALUE RECEIVED, the undersigned Lessee does hereby assign unto
CyPost Corporation, his heirs and assigns, all of his right, title and interest
in and to that certain lease dated the 1st day of October, 1998, between SIXTH &
VIRGINIA PROPERTIES, as Lessor, and Connect Northwest Internet Services, L.L.C.
the undersigned as Lessee, covering the following described property, to-wit:
Suite 705, Approximately Two Hundred Ten (210) rentable sq. ft. in that
certain building known as the Westin Building, on the following real
estate property: Xxxx 00 xxx 00 (xxxx xxxxxxx xxx xxxxxx), Xxxxx 15 of
Addition to town of Seattle, as laid off by Heirs of Xxxxx X. Xxxx,
deceased (commonly known as Heirs of Xxxxx X. Xxxx'x Addition to the
City of Seattle), as per plat recorded in Volume I of plats, page 103,
records of King County, Washington
from and after October 27th, 1999, for and during all the remainder of the term
mentioned in said lease, it being expressly agreed that this assignment shall
not in any manner relieve the undersigned assignor from liability for the
payment of rent or the performance of the covenants on the part of the Lessee as
therein mentioned.
Dated at Seattle, Washington, this 26th day of October, 1999.
Connect Northwest Internet Services, L.L.C.
A Washington Limited Liability
By: /s/ Alex Free
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By:
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(Lessee)
In consideration of the above assignment and the written consent of
the Lessor thereto, the undersigned hereby assumes and agrees to make all the
payments by said lease provided from and after October 27, 1999, and to perform
all of the covenants and conditions of the within lease by the said Lessee
therein to be made and performed.
Dated at Seattle, Washington, this 26th day of October, 1999
CyPost Corporation
A Delaware Corporation
By: /s/ Xxxxxx Xxxxx
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By:
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(Assignee)
