Exhibit 10.35
AGREEMENT REGARDING TERMINATION OF LEASE
THIS AGREEMENT REGARDING TERMINATION OF LEASE ("Agreement") is made and entered
into this 25th day of May, 2002, by and between STERLING REALTY ORGANIZATION
CO., a Washington corporation ("Landlord"), and INFOWAVE USA, INC., a Washington
corporation (Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated May
25, 2001 (the "Lease") whereby Tenant agreed to lease certain premises known as
Suite 500 (the "Premises") in the building located at 0000 Xxxxxxxx Xxxxxxxxx
X.X., Xxxxxxxx, Xxxxxxxxxx (the "Building"). The Building is located on that
certain real property legally described on Exhibit A attached hereto (the
"Property").
B. Landlord agrees to terminate the Lease prior to the expiration date
stated therein, and Landlord and Tenant hereby do so on the following terms and
conditions:
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Capitalized Terms. All capitalized terms not defined in this Agreement
shall have the meaning attributed to them in the Lease.
2. Termination Date. The Lease shall terminate at midnight on May 31, 2002
(the "Termination Date"). Except as specifically set forth in this
Agreement, Landlord and Tenant hereby release each other from all
obligations, duties and liabilities under or arising from the Lease as of
Termination Date.
3. Surrender of Premises. On or prior to June 14, 2002, Tenant shall remove
all of its personal property from the Premises, other than the furniture,
fixtures and equipment located in the Premises, which are hereby
transferred to Landlord as of such date. Tenant shall repair any damage to
the Premises caused by the removal of Tenant's personal property. Any
fixtures or improvements that are attached to the Premises shall become
property of Landlord and shall remain in the Premises in accordance with
the terms of the Lease.
If Tenant fails to repair the damage, if any, caused by its removal of
personal property, Tenant shall promptly reimburse Landlord for the costs
incurred by Landlord to repair such damage.
4. Termination Payment. By close of business on May 31, 2002, Tenant shall pay
to Landlord One Hundred Fifty Thousand Dollars ($150,000.00), by wire
transfer or cashier's check, as consideration for Tenant's early
termination of the Lease (the "Termination Payment"). 5. Letter of Credit.
Upon receipt of the Termination Payment, Landlord shall release its right
to the Letter of Credit in the amount of One Hundred Ten Thousand Dollars
($110,000.00), currently held by Landlord in accordance with the terms of
Paragraph 1(g) of the Lease.
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6. Sublease with First Northwest Mortgage Corporation. Tenant shall, by
execution of the Assignment of Sublease in the form attached hereto as
Exhibit B (the "Assignment of Sublease"), assign to Landlord its interest
in that certain Sublease between Tenant and First Northwest Mortgage
Corporation, a Washington corporation ("FNMC"), dated December 10, 2001
(the "Sublease"), pertaining to 1,969 rentable square feet of the Premises.
Additionally, Tenant shall transfer to Landlord no later than the close of
business on May 31, 2002, by wire transfer or cashier's check, the Security
Deposit paid to Tenant by FNMC in the amount of Three Thousand Two Hundred
Eighty-two Dollars ($3,282.00) (the "Security Deposit").
7. Operating Expenses. Tenant shall be responsible for all expenses incurred
in connection with the Premises, as provided by the terms of the Lease,
through the date on which Tenant actually vacates the Premises (as opposed
to the only through the Termination Date).
8. Effectiveness of Agreement. The effectiveness of this Agreement is subject
to and conditioned upon (a) Tenant's payment to Landlord of the Termination
Payment, (b) Tenant's transfer to Landlord of the Security Deposit, (c)
Tenant's execution of the Assignment of Sublease, and this Agreement shall
be effective and enforceable only if all such conditions are satisfied on
or before 5:00 p.m. on May 31, 2002.
10. Whole Agreement. This Agreement sets forth the entire understanding between
Landlord and Tenant with respect to the subject matter of this Agreement
and replaces all prior to contemporaneous oral or written agreements or
understandings.
11. Attorneys' Fees and Expenses of Litigation. If either party shall consult
an attorney or bring suit to enforce or interpret this Agreement, or to
recover damages and a resolution is reached or a judgment is entered, the
substantially prevailing party shall be entitled to a reasonable sum as
attorneys' fees, and all reasonable costs and expenses in connection with
such dispute or suit, which sum shall be included in any judgment or
decree.
12. Governing Law. This Agreement shall be construed and governed in accordance
with the laws of the State of Washington.
13. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the
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same instrument. In making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
14. Exhibits.
Exhibit A - Assignment of Sublease
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first written above.
LANDLORD:
STERLING REALTY ORGANIZATION CO.,
a Washington corporation,
By:
-------------------------------------------------
Xxxxx Xxxxxxxx, President
TENANT:
INFOWAVE USA, INC.,
a Washington corporation
By:
-------------------------------------------------
Chief Financial Officer
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EXHIBIT A
TO
AGREEMENT REGARDING TERMINATION OF LEASE
Legal Description of Property
Parcel C
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All that certain real property situate in the County of King, State of
Washington, being a portion of the south half of the northwest quarter of the
southeast quarter of Section 9, Township 24 North, Range 5 East, X.X., in Xxxx
County, Washington, and being more particularly described as follows:
Beginning at the southwesterly corner of the southeast quarter of the northwest
quarter of the southeast quarter of Section 9, Township 24 North, Range 5 East,
X.X., in King County, Washington;
thence from said Point of Beginning along the south line of the southwest
quarter of the northwest quarter of the southeast quarter of said Section 9
north 87(degree)22'54" west 32.98 feet;
thence north 01(degree)08'52" east 166.07 feet;
thence north 33(degree)59'03" east 61.63 feet;
thence south 87(degree)22'23" east 274.45 feet;
thence south 02(degree)37'06" west 218.60 feet to a point on the south line of
said south half of the northwest quarter of the southeast quarter of Section 9;
thence along last said south line north 87(degree)22'54" west 269.29 feet to the
True Point of Beginning.
A - 1
EXHIBIT C
TO
AGREEMENT REGARDING TERMINATION OF LEASE
Form of 12600 Building Lease
----------------------------
[See Attached]
ASSIGNMENT OF SUBLEASE
----------------------
THIS ASSIGNMENT OF SUBLEASE ("Assignment") is made and entered into as of the
25th day of May, 2002 by and between INFOWAVE USA, INC., a Washington
corporation ("Assignor") and STERLING REALTY ORGANIZATION, CO., a Washington
corporation ("Assignee").
RECITALS
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This Assignment is made and delivered in order to effect and document the
transfer by Assignor to Assignee of Assignor's right, title and interest as
Sublessor under that certain Sublease by and between Infowave USA, Inc., as
sublessor, and First Northwest Mortgage Corporation dba Northwest Federal
Mortgage Corporation, as sublessee, dated December 10, 2001 (the "Sublease").
The Sublease pertains to approximately 1,969 rentable square feet of the
premises known as Suite 500 of the building located at 0000 Xxxxxxxx Xxxxxxxxx
S.E., in the City of Bellevue, County of King, State of Washington (the
"Premises"). Assignor currently leases the Premises from Assignee pursuant to
the terms of the certain Lease Agreement between Assignor and Assignee dated May
25, 2001 (the "Master Lease"). The legal description of the real property on
which the building is located is set forth on Exhibit A attached hereto.
AGREEMENT
---------
NOW, THEREFORE, the parties agree as follows:
1. Assignment. Assignor hereby assigns, delivers and transfers to Assignee,
all of Assignor's right, title and interest in, to and under the Sublease.
2. Acceptance. Assignee hereby accepts this Assignment and agrees to perform
all of the obligations of sublessor thereunder.
3. Effective Date. This Assignment shall be effective as of June 1, 2002.
1
IN WITNESS WHEREOF, the parties have executed this Assignment as of the date
first above written.
ASSIGNOR: ASSIGNEE:
INFOWAVE USA, INC., STERLING REALTY ORGANIZATION CO.,
a Washington corporation a Washington corporation
By:_________________________ By:________________________________
Its:_____________________ Xxxxx Xxxxxxxx, President -
EXHIBIT A
TO
ASSIGNMENT OF SUBLEASE
Legal Description of Property
-----------------------------
Parcel C
--------
All that certain real property situate in the County of King, State of
Washington, being a portion of the south half of the northwest quarter of the
southeast quarter of Section 9, Township 24 North, Range 5 East, X.X., in Xxxx
County, Washington, and being more particularly described as follows:
Beginning at the southwesterly corner of the southeast quarter of the northwest
quarter of the southeast quarter of Section 9, Township 24 North, Range 5 East,
X.X., in King County, Washington;
thence from said Point of Beginning along the south line of the southwest
quarter of the northwest quarter of the southeast quarter of said Section 9
north 87(degree)22'54" west 32.98 feet;
thence north 01(degree)08'52" east 166.07 feet;
thence north 33(degree)59'03" east 61.63 feet; thence south 87(degree)22'23"
east 274.45 feet;
thence south 02(degree)37'06" west 218.60 feet to a point on the south line of
said south half of the northwest quarter of the southeast quarter of Section 9;
thence along last said south line north 87(degree)22'54" west 269.29 feet to the
True Point of Beginning.
A - 1
