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EXHIBIT 10.16(a)
FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT
This FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT (this "AMENDMENT")
is
entered as of January 1, 2004, 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, and that certain Rent
Deferral Agreement dated as of
December 30, 2003 (the "RENT DEFERRAL
AGREEMENT"). 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 (the
"PREMISES"). Capitalized terms used in this
Amendment and not otherwise defined
herein shall have the meanings assigned to
them in the Lease.
C. The
Lease Term is scheduled to expire on December 31, 2004.
D.
Pursuant to the terms of the Lease, Landlord holds a Security
Deposit in the total amount of
$2,900,000.00, consisting of (i) cash in the
amount of $135,000.00 (THE "CASH SECURITY
DEPOSIT"), and (ii) Letter of Credit
No. 577173-41, dated as of October 1, 2002,
issued by Comerica Bank - California
in the amount of $2,765,000 (the "LETTER OF
CREDIT").
E.
Contemporaneously herewith, Tenant, as tenant, and WA-110
Atrium Place, L.L.C., a Delaware limited
liability company (the "ATRIUM
LANDLORD"), an affiliate of Landlord, as
landlord, are entering into that
certain Office Lease Agreement (the "ATRIUM
LEASE") dated as of the same date as
this Amendment, for space located at 110
Atrium Place, Bellevue, Washington, as
more particularly described in the Atrium
Lease (the "ATRIUM PREMISES"). The
Atrium Lease is contingent upon Landlord
and Tenant entering into this
Amendment.
F.
Landlord and Tenant now desire to amend the Lease according to
the terms and conditions set forth
herein.
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.
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1.
DEFERRAL, REDUCTION AND FORGIVENESS OF RENT AND TERMINATION
PAYMENT. Notwithstanding anything in the
Lease to the contrary:
1.1 All Rent
otherwise payable under the Lease for the
period commencing on January 1, 2004 and
ending on December 31, 2004 (as such
Rent may be adjusted pursuant to the
third-to-last sentence of Section 3.1
below), together with any Termination
Payments (as defined in Section 3.2 below)
payable to Landlord pursuant to Section 3.2
below (collectively, the "DEFERRED
RENT"), shall be deferred until the date,
if any (the "DEFERRAL DATE"), which is
the earlier to occur of (a) the date, if
any, on which Tenant defaults in the
payment of rent under the Atrium Lease
beyond any applicable notice or cure
period, or (b) the date, if any, as of
which the Atrium Lease is terminated by
reason of or on the grounds of: (i) any
default by Tenant (other than in the
payment of rent) under the Atrium Lease, or
(ii) the occurrence of a Casualty
(as defined in Section 16 of the Atrium
Lease) or a Taking (as defined in
Section 17 of the Atrium Lease), except
where (x) such termination results from
Landlord's exercise of a right of
termination (as distinguished, for instance,
from a case where such termination results
from Tenant's exercise of a right of
termination or occurs automatically by
operation of the Atrium Lease or by
operation of law), and (y) in the case of a
Taking, less than the entire
Premises is the subject of the Taking, or
(iii) Tenant's exercise of any right
it may have to terminate the Atrium Lease
pursuant to Section 3.02 thereof. On
the Deferral Date, if any, the
then-remaining balance of the Deferred Rent shall
immediately become due and payable in full
(subject to Sections 1.2, 1.3 and 1.4
below).
1.2 Provided
that Tenant has not previously defaulted
under the Atrium Lease beyond any
applicable notice or cure period, on the first
day of each of the 120 consecutive calendar
months beginning with September
2004, a portion of the Deferred Rent equal
to the lesser of (i) 1/120th of the
original amount of Deferred Rent or (ii)
the then-remaining amount of the
Deferred Rent, shall be forgiven.
1.3
In
addition, if Landlord enters into any Replacement
Lease (as defined in Section 3.1 below)
with any Replacement Tenant (as defined
in Section 3.1 below) with respect to all
or any portion of any Termination
Space (as defined in Section 3.1 below)
following the termination of the Lease
with respect to such Termination Space
pursuant to Section 3.1 below, then the
Deferred Rent shall automatically be
reduced to the extent of the amount of any
rent that is actually payable under such
Replacement Lease with respect to
calendar year 2004 (after giving effect to
any adjustment to such amount
provided for in such Replacement Lease
based on any early or late delivery of
possession of the leased premises or any
portion thereof) ("ALLOCABLE
REPLACEMENT RENT"). Landlord shall provide
Tenant with written notice of the
amount of any such Allocable Replacement
Rent within twenty (20) days after the
applicable Replacement Tenant takes
possession of the leased premises.
1.4 If,
pursuant to Section 1.1 above, the Deferral Date
is triggered by the occurrence of a
Casualty, then, provided that Tenant is not
then in default under the Atrium Lease
beyond any applicable notice or cure
period, the Deferred Rent shall be reduced
by (and, within 30 days after such
Deferral Date, Landlord shall reimburse
Tenant to the extent of) the amount of
any insurance proceeds to which Landlord
may be entitled as a result of such
Casualty
2.
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under any policy of rent interruption
insurance maintained by Landlord, but
solely to the extent that such insurance
proceeds are fairly allocable to the
Atrium Premises. In addition, if: (a)
pursuant to Section 1.1 above, the
Deferral Date is triggered by the
occurrence of a Taking; and (b) Tenant is not
then in default under the Atrium Lease
beyond any applicable notice or cure
period; and (c) a court of competent
jurisdiction determines, in a final and
non-appealable judgment rendered in a legal
proceeding commenced by Tenant not
later than 30 days after such Deferral
Date, that a portion of the condemnation
award received by Landlord is fairly
allocable to the outstanding balance of the
rent to be paid under the Atrium Lease as
of the date of such Taking, then the
Deferred Rent shall be reduced by (and,
within 15 days after the date of such
judgment, Landlord shall reimburse Tenant
to the extent of) the amount of such
portion of such condemnation award.
1.5 Tenant's
obligation to pay the Deferred Rent as
provided in this Section 1, together with
all of Landlord's rights and remedies
under the Lease (including, without
limitation, under the applicable provisions
of Articles 25, 26, 28, 30, 33 and 34)
relating to the enforcement of such
obligation, shall survive the termination
of the Lease.
2.
REDUCTION OF SECURITY DEPOSIT. Notwithstanding anything in the
Lease to the contrary, but without limiting
any other provisions of the Lease
permitting reductions in the amount of the
Security Deposit, if any Allocable
Replacement Rent is payable by any
Replacement Tenant pursuant to any
Replacement Lease, and if Tenant is not
then in default under the Lease beyond
any applicable not
