EXHIBIT 10.16(b)
RENT DEFERRAL AGREEMENT
This RENT DEFERRAL AGREEMENT ("Agreement") is entered as of this 30th
day of December, 2003, by and between WA - SUNSET NORTH BELLEVUE, L.L.C., a
Washington limited liability company formerly known as EOP - Sunset North
Bellevue, L.L.C. ("LANDLORD"), and BSQUARE CORPORATION, a Washington corporation
("TENANT").
RECITALS
A. WRC Sunset North LLC, a Washington limited liability company
("WRC") and Tenant entered into that certain Office Lease Agreement dated as of
January 15, 1999 (the "ORIGINAL LEASE"), and that certain First Amendment to
Office Lease Agreement dated as of July 27, 1999 (the "FIRST AMENDMENT").
B. Landlord, as successor to WRC, and Tenant further amended the
Original Lease (as amended by the First Amendment) by entering into that certain
Second Amendment dated as of January 3, 2001, and that certain Third Amendment
dated as of April 2, 2001, and that certain Fourth Amendment dated as of
September 13, 2002. The Original Lease and the First Amendment, collectively
with the foregoing described amendments, is defined herein as the "LEASE." The
Lease relates to premises located in the City of Bellevue, State of Washington,
consisting of a portion of Building 4 of the Sunset North Corporate Campus, as
more particularly described in the Lease.
C. Landlord and Tenant are currently negotiating the terms of a further
amendment of the Lease (the "FIFTH AMENDMENT").
D. Tenant, as tenant, and an affiliate of Landlord (the "ATRIUM
LANDLORD"), as landlord, are also currently negotiating the terms of a lease
(the "ATRIUM LEASE") to be dated as of the same date as the Fifth Amendment, for
space located at 000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, as more particularly
described in the Atrium Lease.
E. Because Landlord and Tenant currently contemplate that the
Fifth Amendment, if entered into, would defer and partially forgive (and may
eventually completely forgive) all rent due under the Lease for the period
commencing on January 1, 2004, Landlord and Tenant now desire to provide for a
deferral of such rent during the period, if any, commencing on January 1, 2004
and ending on the earlier of (i) the date that the Fifth Amendment and the
Atrium Lease are entered into, or (ii) the date that negotiations are terminated
as described in Paragraph 1 below. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings assigned to them in the
Lease.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
1. RENT DEFERRAL. So long as Tenant and Landlord or Atrium
Landlord, as applicable, are negotiating the terms of the Fifth Amendment and/or
Atrium Lease, all rent
1.
otherwise due under the Lease for the period commencing on January 1, 2004 and
ending on December 31, 2004, shall be deferred until the Fifth Amendment and
Atrium Lease are entered into by Tenant and Landlord and Atrium Landlord, as
applicable, at which point the Fifth Amendment shall be deemed to control and be
retroactive to January 1, 2004. In the event that Landlord or Tenant notifies
the other that negotiations are being terminated without the Fifth Amendment and
Atrium Lease having been entered into, then all rent deferred pursuant to this
Agreement shall become due and payable within ten days of the date Tenant gives
or receives such notice.
2. MISCELLANEOUS.
2.1 The Lease, as amended by this Agreement, is hereby
ratified by Landlord and Tenant and Landlord and Tenant hereby agree that the
Lease, as so amended, shall continue in full force and effect.
2.2 This Agreement may be signed in two or more
counterparts. When at least one such counterpart has been signed by each party,
this Agreement shall be deemed to have been fully executed, each counterpart
shall be deemed to be an original, and all counterparts shall be deemed to be
one and the same agreement.
2.3 This Agreement sets forth the entire agreement
between the parties with respect to the matters set forth herein. There have
been no additional oral or written representations or agreements.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as
of the date first written above.
LANDLORD:
WA - SUNSET NORTH BELLEVUE, L.L.C.,
a Washington limited liability company
By: EQUITY OFFICE MANAGEMENT, L.L.C.,
a Delaware limited liability company, its
non-member manager
By: ____________________________________
Its: ___________________________________
Title: _________________________________
2.
TENANT:
BSQUARE CORPORATION, a Washington corporation
By: ____________________________________
Name: __________________________________
Title: _________________________________
3.
STATE OF ____________)
COUNTY OF ___________) ss:
On this the ___ day of ________________, 20__, before me a Notary
Public duly authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared Xxxxx X. Xxxxxx, known to me to be a Vice
President of a Delaware limited liability company known as Equity Office
Management, L.L.C., the manager of one of the parties described in the foregoing
instrument, and acknowledged that being authorized so to do, (s)he executed the
foregoing instrument on behalf of said partnership by subscribing the name of
said partnership by himself/herself, as a free and voluntary act, and as the
free and voluntary act of said partnership, for the uses and purposes therein
set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
______________________________
Notary Public
My Commission Expires: _____________
STATE OF ____________)
COUNTY OF ___________) ss:
On this the ___ day of ____________, 20__, before me a Notary
Public duly authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared _________________________________ known to
me to be a ___________________________________ of BSquare Corporation, one of
the parties described in the foregoing instrument, and acknowledged that as such
officer, being authorized so to do, (s)he executed the foregoing instrument on
behalf of said corporation by subscribing the name of such corporation by
himself/herself as such officer and caused the corporate seal of said
corporation to be affixed thereto, as a free and voluntary act, and as the free
and voluntary act of said corporation, for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
______________________________
Notary Public
My Commission Expires: _____________
4.
