Assignment And Assumption Of Lease

Assignment And Assumption Of Lease-72

ASSIGNMENT AND ASSUMPTION OF LEASE AND NOVATION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND NOVATION AGREEMENT (this "Agreement") is made and entered into this ___ day of ________, 2001 by and --------- among PITNEY BOWES INC.("Assignor"), a Delaware corporation, PITNEY BOWES -------- OFFICE SYSTEMS, INC. Landlord, as landlord, and Assignor, as tenant, are parties to that certain lease agreement (as amended, the "Lease") dated ((Insert2)). Pursuant to the Lease, Assignor leases from Landlord certain premises (the "Premises") containing approximately ((RSQFT)) rentable square feet as more -------- particularly described in the lease and commonly known as ((Premises Addr1)), ((Premises Addr)), ((Premises City)), ((Premises ST)), ((Premises Zip)). Assignor desires to assign to Assignee, and Assignee desires to assume from Assignor, as of the date (the "Spin-Off Date") of the distribution of 100% ------------- of the issued and outstanding shares of Assignee's common stock to Assignor's shareholders, all of Assignor's rights and obligations under the Lease, on the terms set forth below. In consideration of Assignee assuming all of Assignor's rights and obligations under the Lease, Landlord agrees to release Assignor from all liabilities under the Lease as of the Spin-Off Date, on the terms and conditions set forth below. -------------------------------------- (a) Assignee unconditionally assumes and shall promptly, fully, completely and faithfully keep, fulfill, observe, perform and discharge each and every covenant and obligation that may accrue and become performable, due or owing under the Lease on Assignor's part to be performed. ----------------------------- (a) Notwithstanding anything to the contrary in the Lease, Landlord remises, releases and forever discharges Assignor, as well as its shareholders, officers, employees, agents and representatives, from all obligations arising under the Lease, and from all manner of actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, controversies, agreements, promises, damages, expenses, lost profits, judgments, executions, claims and demands whatsoever, in law or equity, that Landlord and its partners, shareholders, officers, employees, agents and -1- representatives have or may have against any of the foregoing entities, arising out of or in any way connected to the Lease. In BRE the former tenant/lender (the “Second Tenant” or “Lender”) prevailed over the landlord because the Second Tenant failed to execute an express assumption of the lease.

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ASSIGNMENT AND ASSUMPTION OF STANDARD COMMERCIAL OFFICE LEASE FOR EAT/WORK DEVELOPMENT THIS ASSIGNMENT AND ASSUMPTION OF STANDARD COMMERCIAL OFFICE LEASE FOR EAT/WORK DEVELOPMENT ("Agreement") is dated and effective as of January 1, 1999 by and between THE RODA GROUP VENTURE DEVELOPMENT COMPANY, L. C., a Delaware limited liability company ("Assignor") and ASK JEEVES, a California corporation ("Assignee"). Assignee does hereby accept this assignment and, for the benefit of Assignor and Landlord, expressly assumes and agrees to hereafter perform all of the terms, covenants, conditions and obligations of Assignor under the Lease, which accrue from and after the date hereof. Assignee agrees to save, indemnify, defend and hold Assignor harmless from and on account of any claims, demands, actions, losses, expenses and liabilities (including attorneys' fees) of Assignor under the Lease on account of or arising out of the obligations and liabilities so assumed.

WHEREAS, Assignor is Tenant under that certain Standard Commercial Office Lease For Eat/Work Development dated August 14, 1998, by and between Eat/Work Development, LP, a California limited partnership ("Landlord") and Assignor, (as modified from time to time, the "Lease"), respecting certain premises (the "Premises") with a street address of 918 Parker Street, Suite A-14, Berkeley, California, as more particularly described therein; WHEREAS, Assignor desires to assign its interest in the Lease to Assignee and Assignee desires to assume Assignor's obligations under the Lease; NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee agree as follows: 1. Assignor does hereby transfer, assign, convey and deliver to Assignee its entire right, title and interest in the Lease and the Premises.

The purchase agreement acknowledged the lease and attached an exhibit that stated, “ ‘Land Lease covering real property on which broadcasting transmitter is located.’ ” (.) In ruling in favor for the landlord, the trial court agreed with the Landlord that this language was sufficient evidence that the assignee expressly assumed the obligations of the lease. The appellate court noted that “[i]n every case examined where there has been an express assumption, the assignee has stated specifically either orally or in writing that he agrees to be bound by the terms of the lease.” ( (1937) 18 Cal.

App.2d 522, 525 (“the lease itself declares that an assignment shall be void unless the assignee agrees, in writing, to carry its burdens, the agreement of the defendant, in harmony with the requirement of the lease, may be interpreted as a contract directly with the lessor”].) By Randy Aguirre, esq.

One is privity of contract, and the other is privity of estate. An assignee who takes possession of the premises without executing an assumption contract is bound by all lease covenants which run with the land under 678 (“Tri Cities”).) The result is entirely different when a tenant assumes the obligations of the lease pursuant to an express agreement.

The assumption agreement creates a new privity of contract between landlord and assignee, enforceable by the landlord as a third-party beneficiary, regardless of whether the landlord was a party to the assumption agreement.Any amount of recovery obtained by Assignee shall be the property of Assignee, except that Assignor shall be compensated therefrom for any damages sustained by Assignor as a consequence of such default or breach on the part of Landlord. 1 Elmcroft Road Stamford, CT 06906-0700 -2- with a copy to: Trammell Crow Company Attn: Pitney Bowes Lease Administration 1687 114th Avenue, S. Bellevue, WA 98004-6921 If to Assignee: Pitney Bowes Office Systems, Inc.100 Oakview Dr Trumbull, CT 06611-4724 Attn: Lease Administrator with copy to: Pitney Bowes Office Systems, Inc.(f) If any term or provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of this Agreement and any other application of such term shall not be affected thereby. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. By:________________________________________________ Name: Mary Maarbjerg Title: Vice President, Real Estate & Administration ASSIGNEE: PITNEY BOWES OFFICE SYSTEMS, INC.By:________________________________________________ Name: Mark Flynn Title: Vice President, General Council & Secretary LANDLORD: ((LLName)) By:________________________________________________ Name: Title: -4- STATE OF ________________ ) ) ss: COUNTY OF ______________ ) The foregoing instrument was acknowledged before me this __ day of _________, 2001, by __________________, ________________ of Pitney Bowes Inc., a Delaware corporation, on behalf of the corporation.Following the date of this Agreement, the terms Tenant and Lessee, as used in the Lease, shall refer to Assignee.Landlord accepts the liability of Assignee in lieu of the liability of Assignor. --------------- (a) Assignee shall indemnify and hold Assignor harmless from any and all claims, demands, causes of action, losses, costs (including, without limitation, reasonable court costs and attorneys' fees), liabilities or damages of any kind or nature whatsoever that Assignor may sustain by reason of Assignee's breach or non-fulfillment (whether by action or inaction), at any time, of any covenant or obligation under the Lease to be performed by Assignor or Assignee thereunder. Assignee shall take possession of the Premises in its -------------- present "as is" condition, subject to ordinary wear and tear and damage by casualty prior to the Effective Date.Landlord shall be bound by the terms of the Lease in every way as if Assignee were named in the Lease in place of Assignor as a party thereto. (b) The indemnification obligation under this Section shall be conditioned upon Assignor giving notice to Assignee promptly after Assignor receives notice of the claim and shall survive the expiration or termination of the Lease. No representations or warranties have been made to Assignee concerning the condition of the Premises, nor have any promises to remodel, change, alter, or improve the Premises been made by Assignor or any party on behalf of Assignor. Assignor shall not be liable to Assignee for ------------------- Landlord's failure to perform any of Landlord's obligations under the Lease, nor shall Assignor have any obligation to perform same or to bring legal proceedings or take any other action against Landlord to assure performance of Landlord's obligations under the Lease.Assignee has completed such investigation of the Premises as Assignee deems appropriate. Assignee's enforcement of the Lease against Landlord shall be at the sole expense of Assignee, and Assignee shall indemnify Assignor against all costs and expenses, including but not limited to reasonable attorneys' fees, which may be incurred by Assignor in connection with any claim, action, or proceeding so undertaken by Assignee. Any notice, demand, consent, approval, direction, agreement or ------- other communication required or permitted hereunder or under any other documents in connection herewith shall be in writing and shall be directed as follows: If to Assignor: MSC 5105 Attn: Manager, National Leasing & Asset Management Pitney Bowes Inc.100 Oakview Dr Trumbull, CT 06611-4724 Attn: Mark Flynn, General Counsel Facsimile: 203-365-2353 If to Landlord: ((LNot Company Name)) ((LNot Addr1)) ((LNot Addr2)) ((LNot Addr3)) ((LNot City)), ((LNot ST)) ((LNot Zip)) All notices, demands, requests, consents or approvals that may or are required to be given by any party to another shall be in writing and shall be deemed given when actually received by the other party, if: (i) served personally; (ii) sent by nationally-recognized overnight courier with return receipt; or (iii) sent by United States registered or certified mail, postage prepaid, return receipt requested and addressed to such other party at the address specified above or at such other place as such other party may from time to time designate by notice in writing to the other parties hereto. The parties represent to each other that this Agreement ------ was negotiated directly, without the use of any real estate broker. ------------- (a) Each provision of this Agreement shall extend, bind and inure to the benefit of Landlord, Assignor and Assignee and their respective permitted successors and assigns, including without limitation successor assignees of the Lease.Notwithstanding the foregoing, rejection or other refusal to accept a notice, request or demand, or the inability to deliver because of a changed address of which no notice was given, shall be deemed to be actual receipt thereof. Each party shall hold the other harmless from any liability or loss, including reasonable attorneys' fees, resulting from a misrepresentation under this Section. (b) This Agreement contains the entire agreement between the parties, and all prior negotiations and agreements are merged in this Agreement.


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