STAGE III TRI-PARTY AGREEMENT
Exhibit
10.13
STAGE
III TRI-PARTY AGREEMENT
THIS
STAGE III TRI-PARTY AGREEMENT
(“Agreement”)
is
made effective as of the 27th
day of
July, 2007, by and between ▇▇▇▇▇ Yale Limited Partnership, a Washington limited
partnership (“Landlord”);
Onvia, Inc., a Delaware corporation, f/k/a ▇▇▇▇▇.▇▇▇, a Washington corporation
(“Onvia”);
and
the ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ Foundation, a Washington charitable trust
(“Foundation”).
Recitals:
A. Landlord
is the current owner of the building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ (“Building”).
B. Onvia
is
a tenant of the Building, occupying the entirety of Floor 3, the Plaza, and
a
portion of Floor 1 of the Building pursuant to the terms of that certain Amended
and Restated ▇▇▇▇▇▇ Yale Building Office Lease Agreement dated February 8,
2000,
as amended by (i) a certain Amendment No. 1 to Amended and Restated Office
Lease
Agreement dated January 31, 2001 and (ii) a certain Amendment No. 2 to Amended
and Restated Office Lease Agreement executed September 1/7, 2006 (collectively,
“Onvia
Lease”)
between Landlord (as landlord) and Onvia (as tenant). The space leased by Onvia
under the Onvia Lease is referred to in this Agreement as the “Onvia
Space”.
C. Foundation
is a tenant of the Building, occupying Floors 2 and 4, and a portion Floor
1 of
the Building pursuant to the terms of that certain ▇▇▇▇▇▇ Yale Building Office
Lease Agreement dated August 30, 2006, as amended by a certain Amendment No.
1
to Office Lease Agreement dated March 9, 2007 (collectively, “Foundation
Lease”).
The
provisions set forth in Amendment No. 1 became or will become effective on
June
8, 2007.
D. Onvia
desires to vacate the Onvia Space at an undetermined date in the near future
and
terminate the Onvia Lease. Foundation desires to obtain occupancy of the Onvia
Space upon the vacation thereof by Onvia to accommodate Foundation’s occupancy
needs. Landlord is willing to accommodate the interests of Onvia and Foundation,
on the condition that Landlord suffers no interruption or diminution in the
cash
flow generated by the Onvia Lease.
E. The
parties desire to establish a flexible arrangement accommodating the
simultaneous (i) termination of the Onvia Lease pursuant to the Lease
Termination Agreement referenced in Section
3(a)
below
and (ii) amendment of the Foundation Lease pursuant to the Amendment No. 2
to
Office Lease Agreement referenced in Section
3(b)
below
causing the Onvia Space to be added to the Foundation Lease and clarifying
the
application of certain provisions already contained in the Foundation Lease
to
the resulting enlarged premises occupied by Foundation.
F. The
Lease
Termination Agreement and the Amendment No. 2 to Office Lease Agreement must
be
approved by Landlord’s lender and the transactions contemplated by this
Agreement are conditioned on obtaining such approval.
NOW,
THEREFORE,
in
consideration of the foregoing, together with other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
1
1. Stage
III Transition Date.
The term
“Stage
III Transition Date”
means
the date specified in the Stage
III
Transition
Notice on which the Lease Termination Agreement and the Foundation Amendment
become effective.
2. Stage
III Transition
Notice.
The term
“Stage
III Transition
Notice”
means
a
written notice in form identical to that annexed hereto as Exhibit
A,
signed
by each of Onvia and Foundation, and delivered in person or by an overnight
courier service to Landlord between 9:00 a.m. and 4:30 p.m. on a Business Day
at
the address shown on Exhibit
A.
To be
valid, a Stage III Transition Notice must (i) be delivered to Landlord not
later
than May 1, 2008, and (ii) specify a Stage III Transition Date that is no
earlier than ten (10) days subsequent to the date of delivery of the Stage
III
Transition Notice. The term "Business
Day"
means a
day of the year on which banks are not required or authorized to close in
Seattle, Washington.
3. Stage
III Collateral Agreements; Lender Consent. Simultaneously
herewith:
(a)
Landlord
and Onvia are executing a Lease Termination Agreement relating to the Onvia
Lease; and
(b)
Landlord
and Foundation are executing an Amendment No. 2 to Office Lease Agreement
relating to the Foundation Lease
(collectively,
the “Stage
III Collateral
Agreements”).
The
Stage III Collateral Agreements are conditional agreements and shall not be
effective: (A) if there is an uncured event of default under the Onvia Lease
by
Onvia or an uncured event of default under the Foundation Lease by Foundation
as
of the date of delivery of the Stage III Transition Notice or the Stage III
Transition Date, and (B) until (i) a valid Stage III Transition Notice is
delivered, and (ii) Landlord has delivered notice to Onvia and Foundation that
Landlord’s lender has consented to the transactions contemplated by the Stage
III Collateral Agreements. Landlord hereby covenants and agrees to promptly
submit the Stage III Collateral Agreements to Landlord’s lender to obtain such
lender’s consent thereto. Landlord will timely respond to the inquiries of Onvia
and Foundation regarding information in the possession of Landlord regarding
the
status of the lender’s processing and review. If Foundation and Onvia do not
receive confirmation of Landlord’s lender’s consent to the Stage III Collateral
Agreements within ten (10) Business Days following the date of this Agreement,
then Foundation and Onvia shall have the right to terminate this Agreement
by
delivery of written notice to the other parties to this Agreement at any time
prior to Foundation’s receipt of such lender’s consent.
4. Condition
of Onvia Space on Stage III Transition
Date; Removal of Building Signs.
4.1 Onvia
Space.
Landlord
makes no representations or warranties, nor is Landlord responsible for, the
condition or occupancy status of the Onvia Space as of the Stage III Transition
Date. Foundation agrees to accept the Onvia Space on an “as-is, where-is” basis.
Any expectations of Foundation regarding the condition or occupancy status
of
the Onvia Space shall be the subject matter of a separate agreement between
Foundation and Onvia. Foundation is responsible for inspecting the Onvia Space
prior to participating in the delivery of a Stage III Transition
Notice.
4.2 Building
Signs.
Onvia
shall remove its signs on the Building in accordance with the terms of the
Termination of Lease Agreement and Onvia shall repair any damage to the common
areas and Building exterior occasioned by such removal.
2
5. Rent
Associated With Stage III Transition; Letter of Credit.
5.1 Rent.
In the
event the Stage III Transition Date is not the last day of a calendar month,
Foundation and Onvia are responsible for allocating between them Rent (including
Basic Rent and Additional Rent) prepaid for the month in which the Stage III
Transition Date occurs. Such allocation shall be the subject matter of a
separate agreement between Foundation and Onvia.
5.2 Letter
of Credit.
Following the Stage III Transition Date, Landlord shall return the letter of
credit held by Landlord under the Onvia Lease in accordance with the terms
of
the Termination of Lease Agreement.
6. Notices;
Addresses. A
Stage
III Transition Notice may only be delivered as set forth in Section
2
of this
Agreement. All other notices, payments, demands, or communications required
or
permitted to be given by any provision of this Agreement shall be in writing
and
shall be deemed to have been delivered, given, and received for all purposes
(i) if delivered personally to the party to whom the same is directed, or
(ii) when the same is actually received, if sent either by registered or
certified mail or overnight courier, postage and charges prepaid, or by
facsimile or emailed PDF copy, if such facsimile or email is followed by a
hard
copy of the facsimile or email communication sent promptly thereafter by
personal delivery or registered or certified mail, postage and charges prepaid,
addressed as follows, or to such other address as a party may from time to
time
specify by notice to the other parties to this Agreement:
Landlord:
The
▇▇▇▇▇
Company
▇▇▇▇
▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Onvia:
Onvia,
Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Cameron Way
Fax
No:
(206) 373-912
Foundation:
▇▇▇▇
& ▇▇▇▇▇▇▇ ▇▇▇▇▇ Foundation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Site Operations Manager
Fax
No:
(▇▇▇) ▇▇▇-▇▇▇▇
3
DATED
as of
the date first appearing above.
▇▇▇▇▇
YALE LIMITED PARTNERSHIP ONVIA,
INC.
By
_______________________________ By
_______________________________
Its
_______________________________ Its
_______________________________
▇▇▇▇
& ▇▇▇▇▇▇▇ ▇▇▇▇▇ FOUNDATION
By
_______________________________
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Chief Financial Officer
4
State
of
Washington
County
of
King
I
certify
that I know or have satisfactory evidence that ____________________ is the
person who appeared before me, and said person acknowledged that (he/she) signed
this instrument, on oath stated that (he/she) was authorized to execute the
instrument and acknowledged it as the ______________ of ONVIA, INC. to be the
free and voluntary act of such party for the uses and purposes mentioned in
the
instrument.
Dated:
______________
Notary
Public
[Seal
or
Stamp]
[Printed
Name]
My
appointment expires __________
State
of
Washington
County
of
King
I
certify
that I know or have satisfactory evidence that ____________________ is the
person who appeared before me, and said person acknowledged that he signed
this
instrument, on oath stated that he was authorized to execute the instrument
and
acknowledged it as the ______________ of ▇▇▇▇▇ YALE LIMITED PARTNERSHIP to
be
the free and voluntary act of such party for the uses and purposes mentioned
in
the instrument.
Dated:
______________
Notary
Public
[Seal
or
Stamp]
[Printed
Name]
My
appointment expires __________
5
State
of
Washington
County
of
King
I
certify
that I know or have satisfactory evidence that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is the person
who appeared before me, and said person acknowledged that she signed this
instrument, on oath stated that she was authorized to execute the instrument
and
acknowledged it as the Chief Operating Officer of the ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇
FOUNDATION to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated:
______________
Notary
Public
[Seal
or
Stamp]
[Printed
Name]
My
appointment expires __________
6
EXHIBIT
A
[________________,
2007]
The
▇▇▇▇▇
Company
▇▇▇▇
▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Gentlemen:
This
letter serves as Notice pursuant to that certain Stage III Tri-Party Agreement
dated __________ __, 2007 by and between ▇▇▇▇▇ Yale Limited Partnership
(“Landlord”); Onvia, Inc. (“Onvia”); and the ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ Foundation
(“Foundation”). This letter is the “Stage III Transition Notice” described in
Section
2
of the
referenced Stage III Tri-Party Agreement.
Pursuant
to the Stage III Tri-Party Agreement, you are hereby notified that the
Stage
III
Transition
Date (as defined in the Stage
III
Tri-Party
Agreement) is __________, 200_.
|
▇▇▇▇
& ▇▇▇▇▇▇▇ ▇▇▇▇▇
FOUNDATION
By
_______________________________
▇▇▇▇▇▇
▇▇▇▇▇, Chief Operating Officer
|
ONVIA,
INC.
By
_______________________________
Its
_______________________________
|