AMENDMENT NO. 2 TO AMENDED AND RESTATED OFFICE LEASE AGREEMENT
Exhibit 10.1
AMENDMENT NO. 2
TO
AMENDED AND RESTATED OFFICE LEASE AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED OFFICE LEASE AGREEMENT is made and entered into by and among XXXXX YALE LIMITED PARTNERSHIP, a Washington limited partnership (“Landlord”) and ONVIA INC., a Delaware corporation, f/k/a Xxxxx.xxx, a Washington corporation (“Tenant”).
RECITALS
A. Landlord and Tenant entered into a certain Amended and Restated Office Lease Agreement dated February 8, 2000, as amended by Amendment No. 1 to Amended and Restated Office Lease Agreement dated January 31, 2001 (collectively, “Lease”).
B. Tenant desires to relinquish possession of a portion of the Premises described in the Lease to accommodate the occupancy of such space by Xxxx & Xxxxxxx Xxxxx Foundation (“Gates”) pursuant to the terms of a direct lease to be entered into between Gates and Landlord for such space (“Gates Lease”), and Landlord is willing to accept the same, all subject to the terms and conditions set forth herein. The relinquished space consists of the entirety of Floor 4 of the Building and that portion of Floor 1 shown on Exhibit A annexed hereto that is not part of the Premises following the Implementation Date described in Section 10 below (collectively, “Gates Space”).
C. This Amendment is subject to the approval of Landlord’s lender, and neither party shall be bound by the terms of this Amendment until the approval of Landlord’s lender is received in form satisfactory to Lender.
NOW, THEREFORE, in consideration of the foregoing, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows:
1. Definitions. Capitalized terms used in this Amendment without definition, including the foregoing recitals, shall have the same meanings ascribed to such terms in the Lease.
2. Lease Summary. Sections 1.1, 4.1, 4.2 and 21.25 of the Lease Summary are deleted in their entirety and the following substituted in lieu thereof:
“Section 1.1 The Building
| (a) | Name: | Xxxxxx Yale Building | ||
| (b) | Address: | 0000 Xxxxxx Xxxxxx | ||
| Xxxxxxx, Xxxxxxxxxx 00000 | ||||
| (c) | Total Rentable Area of Building: | 104,500 square feet |
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The Premises
| (a) | Total Rentable Area: | 29,785 square feet | ||
| (b) | Floor Location: | First (partial), Plaza and Third |
Section 4.1 Basic Rent
| Month(s) |
Fixed Amount | ||
| 01/01/07-04/30/07 |
$ | 113,754.93 | |
| 05/01/07-12/31/07 |
117,046.59 | ||
| 01/01/08-04/30/08 |
114,135.21 | ||
| 05/01/08-12/31/08 |
118,385.21 | ||
| 01/01/09-04/30/09 |
115,473.84 | ||
| 05/01/09-12/31/09 |
122,057.18 | ||
| 01/01/10-04/30/10 |
119,145.80 | ||
Section 4.2 Operating Expenses
| (a) | Tenant’s Proportionate Share: | 30.32% |
Section 21.25 Stipulated Parking Spaces: Seventy Seven (77) spaces.”
3. Premises Defined. The last sentence of Section 1.1 of the Lease is deleted in its entirety.
4. Basic Rent. Section 4.1 of the Lease is deleted in its entirety and the following substituted in lieu thereof:
Section 4.1 Basic Rent.
4.1.1 The term “Basic Rent” for any month during the Term means the sum of (a) the Fixed Amount as specified in the Lease Summary, plus (b) the Operating Expenses Factor, and (c) the Parking Factor. Basic Rent attributable to each month of the Lease Term is payable on or before the 25th day of the preceding month. Basic Rent for any partial month shall be prorated based upon the actual number of days in that partial month. Basic Rent shall not be adjusted (either upward or downward) despite subsequent measurements of the rentable area of the Premises which identify discrepancies between the actual area and that shown in the Lease Summary.
4.1.2 The term “Operating Expense Factor” means, for any month, 3.773% of Operating Expenses for the 2007 Lease Year. [45.28% ÷ 12].
4.1.3 The term “Parking Factor” means, for any month, the amount depicted in the last column of the following table, which is the product obtained by multiplying (A) the Parking Rate Differential for such month by (B) 102. The term “Parking Rate Differential” means the positive difference between (A) the per space monthly amount payable by Tenant for parking spaces pursuant to Paragraph 4 of Exhibit E, agreed to be the amount depicted in the column labeled
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“Onvia Rate” in the following table and (B) the amount depicted in the “Gates Rate” column in following table:
| Month(s) |
Onvia Rate | Gates Rate | Differential | Parking Factor | ||||||||
| 01/01/07-04/30/07 |
$ | 162.50 | $ | 100.00 | $ | 62.50 | $ | 6,375.00 | ||||
| 05/01/07-12/31/07 |
168.75 | 100.00 | 68.75 | 7,012.50. | ||||||||
| 01/01/08-04/30/08 |
168.75 | 106.25 | 62.50 | 6,375.00 | ||||||||
| 05/01/08-12/31/08 |
175.00 | 106.25 | 68.75 | 7,012.50 | ||||||||
| 01/01/09-04/30/09 |
175.00 | 109.98 | 65.02 | 6,632.04 | ||||||||
| 05/01/09-12/31/09 |
181.25 | 109.98 | 71.27 | 7,269.54 | ||||||||
| 01/01/10-04/30/10 |
181.25 | 111.09 | 70.16 | 7,156.32 | ||||||||
5. Name of Building. Section 21.19 of the Lease is deleted in its entirety.
6. Tenant Floor Plan. Exhibit A of the Lease is deleted in its entirety and Exhibit A annexed hereto is substituted in lieu thereof.
7. Option to Extend Term. The last sentence of Exhibit E, Paragraph 1 of the Lease is deleted in its entirety and the following substituted in lieu thereof:
“Tenant shall deliver to Landlord a written notice of Tenant’s exercise of its option to extend hereunder not later than April, 30, 2009.”
8. Parking Rates. Pursuant to Exhibit E, Paragraph 4 of the Lease, Landlord and Tenant agree to the following as the monthly parking rate per space through April 30, 2010:
| Month(s) |
Rate | ||
| 01/01/07-04/30/07 |
$ | 162.50 | |
| 05/01/07-12/31/07 |
168.75 | ||
| 01/01/08-04/30/08 |
168.75 | ||
| 05/01/08-12/31/08 |
175.00 | ||
| 01/01/09-04/30/09 |
175.00 | ||
| 05/01/09-12/31/09 |
181.25 | ||
| 01/01/10-04/30/10 |
181.25 | ||
9. Building Signage; Storage.
9.1 Building Signage. Pursuant to Exhibit E, Paragraph 3 of the Lease, as previously amended, Landlord reserves its option to limit Tenant to the one (1) existing sign on the Building on the Interstate 5 north side of the Building and to reduce the size of that sign.
9.2 Storage. Pursuant to Exhibit E, Paragraph 6 of the Lease, as previously amended, the storage areas currently used by Tenant shall be reduced to approximately thirty and thirty-two hundredths percent (30.32%) of the area currently used by Tenant.
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Annexed as Exhibit B is a drawing that depicts the areas that Tenant is entitled to use for storage purposes subsequent to the Implementation Date.
10. Effective Date of Modifications. Subject to Sections 11, 12 and 13 of this Amendment, the amendments and modifications provided for in this Amendment, including Section 4.1 of the Lease Summary, shall be effective as of January 1, 2007 (“Implementation Date”).
11. Transition Matters. During the period between the execution of this Amendment and the Implementation Date, Landlord and Tenant agree as follows regarding access to and use of the Premises and other transition issues relating to the occupancy by Gates:
11.1 Vacation of Gates Space. Not later than November 1, 2006, Tenant will vacate the Gates Space to allow Gates access to such area for Gates’ use and improvement according to the terms of the agreement between Tenant and Gates annexed hereto as Exhibit C (the “Ancillary Agreement”).
11.2 Condition of Gates Space Upon Vacation. Upon vacation, Tenant will leave the Gates Space in broom clean, finished condition adequate for standard office use in accordance with the Ancillary Agreement. Tenant will remove the Floor 1 demising wall, the walk-in freezer on Floor 1, and other improvements on Floor 1 in accordance with the Ancillary Agreement.
11.3 Modifications to Xxxxx 0 Xxxxxx Xxxx. Not later than November 1, 2006, Tenant will modify the interior access to the server room in accordance with the Ancillary Agreement.
11.4 Payment of Improvement Allowance. Not later than December 15, 2006, Tenant shall have delivered funds to Gates in the amount of $214,890.00 for the benefit of Gates to use in connection with the improvement of the Gates Space.
11.5 Nonexclusive Use of Floor 1 Server Room. Notwithstanding the terms of the Lease, subsequent to the Implementation Date, Tenant’s use of the Floor 1 Server Room shall be nonexclusive and subject to shared usage between Tenant and Gates in accordance with the Ancillary Agreement.
12. Commissions on Transaction. Tenant represents and warrants that it has incurred no liabilities or claims for brokerage commissions or finder’s fees in connection with the negotiation and/or execution of this Lease and that it has not dealt with or has any knowledge of any real estate broker/agent or salesperson in connection with this Lease except for The Staubach Company, whose commission shall be paid by Tenant. Tenant agrees to indemnify, defend, and hold Landlord harmless from and against, all of such liabilities and claims (including, without limitation, attorneys’ fees and costs) made by any other broker/agent or salesperson claiming to represent Tenant in connection with this Lease.
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13. Conditions; Lender Consent; Gates Lease; Tenant Performance. This Amendment is not binding on Landlord unless the following conditions are satisfied by the times identified: (i) the receipt by Landlord by September 24, 2006 of the approval of Landlord’s lender to the terms of this Amendment without the imposition of any conditions or other terms that are not acceptable to Landlord in Landlord’s absolute discretion, (ii) execution of the Gates Lease in form satisfactory to Landlord within ten (10) business days of the execution of this Amendment if the Gates Lease has not previously been executed, and (iii) the performance by Tenant of each of Tenant’s obligations at the time and in the manner described Sections 11.1, 11.2, 11.3 and 11.4. In the event any of such conditions remain unsatisfied as of the dates specified, Landlord may elect to rescind this Amendment by delivering written notice to Tenant of such election, upon which delivery this Amendment shall be null and void as if never executed.
14. Ratification. Except as specifically modified as set forth in this Amendment, Landlord and Tenant ratify and confirm the Lease and all provisions contained therein as originally executed and as subsequently amended.
IN WITNESS WHEREOF, this Amendment is executed effective as of the day and year first written above.
| TENANT: |
ONVIA INC., a Delaware corporation, f/k/a Xxxxx.xxx Inc., a Washington corporation | |||||||
| Date: September 1, 2006 | By: | /s/ Xxxxxxx X. Way | ||||||
| Its: | Chief Accounting Officer | |||||||
| LANDLORD: |
XXXXX YALE LIMITED PARTNERSHIP, a Washington limited partnership | |||||||
| Date: September 7, 2006 | By: | /s/ Xxxxx X. Xxxxx | ||||||
| Xxxxx X. Xxxxx, General Partner | ||||||||
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TENANT’S ACKNOWLEDGEMENT
| STATE OF WASHINGTON | ) | |||
| ) | ss. | |||
| COUNTY OF KING | ) |
I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgement is the person whose true signature appears on this document.
On this 1st day of September, 2006, before me personally appeared Xxxxxxx X. Way, to me known to be the Chief Accounting Officer of Onvia INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any is the corporate seal of said corporation.
WITNESS my hand and official seal hereto affixed the day and year first above written.
 |
/s/ Xxxxxx X. Xxx | |||
| Notary Public in and for the State of Washington, residing at Seattle My commission expires: August 21, 2010 | ||||
| Xxxxxx X. Xxx | ||||
| (Use This Space for Notarial Seal Stamp) |
[Type or Print Notary Name] | |||
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LANDLORD’S ACKNOWLEDGEMENT
| STATE OF WASHINGTON | ) | |||
| ) | ss. | |||
| COUNTY OF KING | ) |
I certify that I know or have satisfactory evidence that the persons appearing before me and making this acknowledgment are the persons whose true signatures appear on this document.
On this 7th day of September, 2006, before me personally appeared XXXXX X. XXXXX, to me known to be the General Partner of XXXXX YALE LIMITED PARTNERSHIP, the limited partnership that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited partnership, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year first above written.
 |
/s/ Xxxx Yogi | |||
| Notary Public in and for the State of Washington, residing at Seattle, WA My commission expires: 04/20/2008 | ||||
| Xxxx Yogi | ||||
| (Use This Space for Notarial Seal Stamp) |
[Type or Print Notary Name] | |||
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EXHIBIT A
Premises
Floor 1 Premises include Plaza and “Tenant Two” area.
EXHIBIT B
Storage
EXHIBIT C
September 5, 2006
Onvia, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Way
| RE: | The Xxxxxx Yale Building |
| Dear | Cameron: |
Onvia, Inc. (“Onvia”), the Xxxx & Xxxxxxx Xxxxx Foundation (“Tenant”) and The Xxxxx Company (“Landlord”) previously entered into that certain letter of intent dated June 15, 2006. Landlord and Tenant are in the process of finalizing a direct lease between them for the Premises as set forth in the letter of intent and Landlord and Onvia are in the process of finalizing an amendment to the existing lease between them. For good and valuable consideration, this letter agreement serves to confirm certain agreed points between Onvia and Tenant.
Having reviewed the building plans provided to Tenant by Onvia, Tenant and Onvia hereby agree that upon delivery of the Premises to Tenant, Onvia shall provide the first and fourth floor spaces in broom clean, finished condition adequate for standard office use. More specifically, Onvia’s scope of work for the first floor shall include the following:
| • | Demolition to shell condition, including, but not limited to: |
Partially demolished office at northeast end of floor
Removal of two steel posts from interior security gate
Removal of walk-in refrigerator
Removal of supplementary HVAC unit serving the kitchen area
Cap at ceiling level unused conduits, pipes
Removal of demising wall
Removal of wall and cabinetry in “café” area
| • | Remove all of Onvia’s personal property |
| • | Onvia to research where water heater provides service to & access requirements for service/maintenance. |
Onvia, at its sole cost, shall further remove and patch the interior access doorway to the server room on the first floor and construct a new access doorway off the building entrance lobby. Prior to completing the work in the server room, Onvia shall confirm work with Tenant.
| XX Xxx 00000 Xxxxxxx, Xxxxxxxxxx 00000 X.X.X. V 206.709.3100 F 206.709.3180 xxx.xxxxxxxxxxxxxxx.xxx |
EXHIBIT C
All of the foregoing work shall be completed by Onvia at its sole cost and expense on or before November 1, 2006. Tenant shall be entitled to take possession of the Premises on November 1, 2006.
In addition to the foregoing delivery requirements, on or before December 15, 2006 Onvia shall pay Tenant $214,890 to be applied by Tenant to tenant improvements on Floor 1.
Throughout Onvia’s term of its amended lease, Tenant shall have the right to access and will share the first floor server room space with Onvia. If Tenant exercises its right to access and use the server room, Tenant and Onvia shall mutually agree upon: (a) the area each will maintain and the method by which the individual spaces will be secured and (b) a services agreement addressing each party’s proportionate share of the costs associated with usage and operation of the server room space. Onvia and Tenant shall split the cost to demise the server room space (e.g. the fencing) equally between the parties. Tenant shall, at its own cost, add any security components (e.g. card reader) to its area within the server room and, if needed, add any access doorway to the server room from the leased space occupied solely by Tenant.
For security reasons, Tenant and Onvia agree to have the card key access to the elevator vestibules throughout the parking garage activated 24 hours per day, 7 days per week.
Please return to the undersigned the enclosed copy of this letter executed by an authorized representative of Onvia. We look forward to working with you in to complete the subject transaction.
| Sincerely, | ||
| XXXX & XXXXXXX XXXXX FOUNDATION | ||
| /s/ Xxxxxx Xxxxx | ||
| By: | Xxxxxx Xxxxx | |
| Its: | Chief Operating Officer | |
The undersigned, acting for and on behalf of Onvia, Inc.
hereby acknowledges and agrees to the above stated terms
| Onvia, Inc. | ||
| /s/ Xxxxxxx X. Xxxxxxx | ||
| By: | Xxxxxxx X. Xxxxxxx | |
| Its: | Chairman of the Board, CEO & President | |
