EXHIBIT 10.38
TABLE OF CONTENTS
ONE UNION SQUARE
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1. BASIC LEASE INFORMATION............................................................ 1
2. RENT PAYMENT....................................................................... 2
3. REAL PROPERTY DESCRIPTION (ONE UNION SQUARE).........................................2
4. POSSESSION...........................................................................3
5. ACCEPTANCE AND CARE OF PREMISES......................................................3
6. ALTERATIONS..........................................................................3
7. INSPECTION AND REPAIRS...............................................................4
8. SERVICES BY LESSOR...................................................................4
9. FIRE OR OTHER CASUALTY...............................................................6
10. WAIVER OF SUBROGATION................................................................6
11. USES............................................................................... 6
12. SIGNS AND ADVERTISING.............................................................. 7
13. ACCIDENTS AND INDEMNITY............................................................ 7
14. LIENS AND INSOLVENCY............................................................... 8
15. DEFAULT AND RE-ENTRY............................................................... 8
16. REMOVAL OF PROPERTY AND REPLACEMENT OF
NON-STANDARD ITEMS................................................................. 9
17. NON-WAIVER......................................................................... 9
18. COSTS AND ATTORNEYS' FEES.......................................................... 9
19. PRIORITY........................................................................... 9
20. CONDEMNATION....................................................................... 10
21. ASSIGNNMENT AND SUBLETTING......................................................... 10
22. RULES, REGULATIONS AND MISCELLANEOUS............................................... 12
23. SUCCESSORS......................................................................... 15
24. SHARED TENANT SERVICES............................................................. 15
25. AMERICAN DISABILITIES ACT.......................................................... 16
26. TENANT IMPROVEMENTS................................................................ 16
27. OPTION TO CANCEL................................................................... 17
ATRIEVA CORPORATION, LESSEE
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CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the
CERTAIN PORTIONS OF THIS information contained within the
DOCUMENT "[**]" markings. Such marked portions
have been omitted from this filing and
have been filed separately with the
Securities and Exchange Commission
ONE UNION SQUARE
Seattle, Washington
OFFICE LEASE
THIS LEASE, made this 27TH day of January, 1998, between: UNION SQUARE
LIMITED PARTNERSHIP, a Washington Limited Partnership, (Lessor) and ATRIEVA
CORPORATION, a Washington corporation, (Lessee).
Lessee, in consideration of this Lease, covenants and agrees with Lessor
as follows:
1. BASIC LEASE INFORMATION
1.1 Leased Premises. Lessee hereby leases from Lessor, Room(s) 905-921 (the
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Leased Premises) as outlined in red on the attached print marked Exhibit A in
the building at Seattle, Washington, known as One Union Square (the Building),
and situated on the real property described in Section 4 (the Land).
1.2 Floor Areas. For purposes of this Lease, the usable area of the Leased
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Premises is deemed to be 8,389 square feet. The rentable area of the Leased
Premises is deemed to be 9,396 square feet. The Leased Premises are deemed to be
1.52946 percent of the rentable area of the Building. In the event a portion of
the Building is damaged or any other event or change occurs which alters the
usable or rentable areas of the Leased Premises or the Building, Lessor may
appropriately adjust the foregoing areas and percent. Usable and rentable areas
shall mean such areas as defined generally by the Building Owners and Managers
Association International in its "Standard Method for Measuring Floor Area in
Office Buildings" (American National Standard ANSIZ 65.1-1980). Whenever areas
are herein referred to generally, it shall mean rentable area. Lessee has
undertaken such examination of rentable and usable areas of the Building as it
desires and agrees with the areas set forth above
1.3 Term. The lease term shall be [***] commencing [***]
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and ending [***].
1.4 Rent. The Base Monthly Rent, payable without demand in advance on the
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first day of each calendar month, shall be:
[***]
1.5 Use. The Leased Premises shall be used only for the purposes of
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business office.
1.6 Lessee's Address for Notices if Other Than the Leased Premises:
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1.7 Lessor's Address for Notices and Payment of Rent:
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UNICO Properties, Inc.
Rainier Tower
1301 5th Avenue, Suite 3500
Seattle, WA 98101-2647
1.8 Exhibits and Other Attachments Which are Part of the Lease:
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Exhibit A: Print with Leased Premises outlined in red on standard
floor plan.
2. RENT PAYMENT
Lessee shall pay the rent and other charges provided for in this Lease, in
lawful money of the United States on or before their specified due dates to
Lessor at the address specified in Section 1.8, or to such other party or at
such other place as Lessor may hereafter from time to time designate in writing.
All rent which is past due shall bear interest at the rate of one percent (1%)
per month from the date rent is due until paid. If the maximum annual rate of
interest permitted by applicable law shall be less than the rate of interest
provided for herein, then all past due payments of rent shall bear interest at
the maximum rate permitted by applicable law from due date until paid. Lessee
acknowledges that late payment by Lessee to Lessor of rent will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult and economically unpractical to ascertain. Therefore, if any
payment of rent due from Lessee is not received by Lessor within 10 days after
the due date, Lessee shall pay to Lessor (in addition to the interest above
provided) a late charge of Fifty Dollars ($50) or two percent (2%) of the
overdue rent, whichever shall be greater. The parties agree that this late
charge represents a fair and reasonable estimate of the costs that Lessor will
incur by reason of late payment by Lessee and is in addition to any interest
charges on past due rent. The term "rent" when used in this Lease shall include
Base Monthly Rent and all other amounts however designated payable by Lessee to
Lessor hereunder.
3. REAL PROPERTY DESCRIPTION (ONE UNION SQUARE)
The legal description of the Land is:
Commencing at the most southwesterly corner of Lot 12, of Block 61, Addition
to Town of Seattle (commonly known as A.A. Denny's Fifth Addition to City of
Seattle), according to plat recorded in Volume 1 of Plats, page 89, in King
County, Washington; thence north 303708" west along the westerly line of
said block 119.84 feet; thence north 5920'00" east 105.15 feet; thence north
3040'32" west 38.89 feet; thence north 5923'00" east 14.80 feet; thence
north 3037'00" west 0.55 feet; thence
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north 5920'14" east 135.80 feet to the easterly line of said block; thence
south 3035'43" east along said east line 159.45 feet to the most
southeasterly corner of said block; thence south 5922'32" west 255.64 feet
to the point of beginning (also known as Parcel A of City of Seattle Short
Subdivision No. 8606903, King County Recording No. 8702260616).
4. POSSESSION
In the event of the inability of Lessor to deliver possession of the Leased
Premises or any portion thereof, at the time of the commencement of the term of
this Lease, Lessor shall not be liable for any damage caused thereby, nor shall
this Lease thereby become void or voidable. Lessee shall not be liable for
payment of any rent until such time as Lessor can deliver possession, except as
may be otherwise provided in an Exhibit to this Lease.
5. ACCEPTANCE AND CARE OF PREMISES
5.1 Taking of possession of the Leased Premises by Lessee shall be
conclusive evidence the Leased Premises were, on that date, in good, clean and
tenantable condition.
5.2 Lessee shall keep the Leased Premises neat and clean and in a sanitary
condition and shall at all times preserve them in as good condition and repair
as they now are, or may hereafter be put into, reasonable use and wear and
damage by fire or other unavoidable casualty excepted. All damage or injury done
to the Leased Premises by Lessee or by any persons who may be in or upon the
Leased Premises with the consent of Lessee, including the cracking or breaking
of glass of arty windows and doors, shall be paid for by Lessee and Lessee shall
pay for all damage to the Building caused by Lessee's misuse of the Leased
Premises or the appurtenances thereto. Lessee shall not put any curtains,
draperies or other hangings on or beside the windows in the Leased Premises
without first obtaining Lessor's consent. If Lessee shall fail to keep and
preserve the Leased Premises in said condition and state of repair Lessor may at
its option put or cause the same to be put into the condition and state of
repair agreed upon, and in such case Lessee, on demand, shall pay the cost
thereof
6. ALTERATIONS
Lessee shall design the Leased Premises so they will comply with then
applicable laws at the commencement of the lease term. Lessee shall not make any
alterations, additions or improvements in or to the Leased Premises (other than
decorations and non-structural alterations that do not affect the Building
systems), or make changes to locks on doors, or add, disturb or in any way
change any plumbing or wiring therein, without the prior written consent of
Lessor (such consent not to be unreasonably withheld). Lessor may require that
any such work be performed by Lessor's employees or contractor(s) employed by
Lessor. Lessor, at its option, may at its own expense make any repairs,
alterations or improvements which Lessor may deem necessary or advisable for the
preservation, safety or improvement of the Leased Premises or the Building,
provided only that Lessee shall at all times have reasonable access to the
Leased Premises. Lessee shall, at its own expense, make any alterations,
additions or improvements to the Leased Premises
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which arc required by law during the term of this Lease. Lessor's approval
concerning the initial improvement or any subsequent alteration, addition or
improvement of the Leased Premises is for Lessor's benefit only and shall not
create any responsibility or liability on the part of Lessor for design
sufficiency or compliance with applicable laws.
7. INSPECTION AND REPAIRS
Lessor shall have the right, on reasonable prior notice (except in an
emergency) to inspect the Leased Premises at all reasonable times and the right
to enter the same for the purpose of cleaning, repairing,altering or improving
the same, or the Building, but nothing contained in this Lease shall be
construed so as to impose any obligation on Lessor to make any repairs,
alterations or improvements except as expressly provided in Section 9.
8. SERVICES BY LESSOR
8.1 Lessor will, at its expense furnish Lessee with the following services
and utilities:
(a) Elevator service during normal business hours of the Building (8:00
a.m. to 6:00 p.m.- Monday through Friday and 9:00 a.m. to 1:00 p.m. - Saturday,
except legal holidays generally observed in the State of Washington) and the
service of at least one elevator during all other hours.
(b) Heating and air cooling to maintain a temperature condition which in
Lessor's judgment provides for comfortable occupancy of the Leased Premises
during normal business hours of the Building, provided Lessee complies with
Lessor's instructions regarding use of drapes and thermostats and Lessee does
not utilize heat generating machines or equipment which affect the temperature
otherwise maintained by the air cooling system. Upon request Lessor shall make
available at Lessee's expense after hours heat or air cooling. The minimum, use
of after hours heat or air cooling and the cost thereof shall be determined by
Lessor and confirmed in writing to Lessee, as the same may change from time to
time.
(c) Water for drinking, lavatory and toilet purposes.
(d) Electricity for building standard lighting and operation of low power
usage office machines in quantities usually furnished by Lessor to tenants in
the Building for general office use. Low power usage machines are typewriters,
desk top calculators, desk top computer terminals and similar equipment with
similar power requirements which operate on 110 volt circuits.
(e) Janitorial service and window washing. This service includes vacuum
cleaning of carpets and cleaning of Building standard vinyl composition tile,
but no other services with respect to carpets or non-standard floor coverings.
Shampoo or similar cleaning of carpets and repair and replacement of carpets
shall be Lessee's responsibility and at Lessee's expense.
(f) Maintain the exterior window blinds or draperies, windows, doors,
floors, walls, ceilings, plumbing and plumbing fixtures, and electrical
distribution system and lighting fixtures in
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good condition and repair, except for damage caused by Lessee, its employees,
agents, invitees or visitors, and except that such service will not be provided
as to any of the foregoing items that are not standard for the Building.
(g) Replacement of burned out fluorescent tubes in light fixtures which are
standard for the Building. Burned out bulbs, tubes or other light sources in
fixtures which are not standard for the Building will be replaced by Lessor at
Lessee's expense.
8.2 Lessor shall use reasonable diligence to remedy an interruption in the
furnishing of such services and utilities. If, however, any governmental
authority imposes regulations, controls or other restrictions upon Lessor or the
Building which would require a change in the services provided by Lessor under
this Lease, Lessor may comply with such regulations, controls or other
restrictions, including without limitation, curtailment, rationing or
restrictions on the use of electricity or any other form of energy serving the
Leased Premises. Lessee will cooperate and do such things as are reasonably
necessary to enable Lessor to comply with such regulations, controls or other
restrictions.
8.3 Whenever heat generating machines or equipment or lighting other than
building standard fights are used in the Leased Premises by Lessee which affect
the temperature otherwise maintained by the air cooling system, Lessor shall
have the right to install supplementary air cooling units in the Leased
Premises, and the cost thereof, including the cost of installation and the cost
of operation and maintenance thereof, shall be paid by Lessee to Lessor upon
billing by Lessor. Lessor may impose a reasonable charge for utilities and
services, including without limitation, air cooling, electric current and water;
required to be provided the Leased Premises by reason of, (a) any substantial
recurrent use of the Leased Premises at any time other than the hours of 7:00
a.m. to 6:00 p.m., Monday through Friday, (b) any use beyond what Lessor agrees
to furnish as described above, (c) electricity used by equipment designated by
Lessor as high power usage equipment or (d) the installation, maintenance,
repair, replacement or operation of supplementary air cooling equipment,
additional electrical systems or other equipment required by reason of special
electrical, heating, cooling or ventilating requirements of equipment used by
Lessee at the Leased Premises. High power usage equipment includes without
limitation, data processing machines, punch card machines, computers and
machines which operate on 220 volt circuits. Lessee shall not install or operate
high power usage equipment on the Leased Premises without Lessor's prior written
consent, which may be refused unless Lessee confirms in writing its obligation
to pay the additional charges necessitated by such equipment. At Lessor's
option, separate meters for such utilities and services may be installed for the
Leased Premises and Lessee upon demand therefor, shall immediately pay Lessor
for the installation, maintenance, repair and replacement of such meters.
8.4 Lessor does not warrant that any of the services and utilities referred
to above will be free from interruption. Interruption of services and utilities
shall not be deemed an eviction or disturbance of Lessee's use and possession of
the Leased Premises or any part thereof or render Lessor liable to Lessee for
damages, or relieve Lessee from performance of Lessee's obligations under this
Lease.
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9. FIRE OR OTHER CASUALTY
In the event the Building or the Leased Premises shall be destroyed or
rendered untenantable, either wholly or in part, by fire or other casualty,
Lessor may, at its option, restore the Building or Leased Premises to as near
their previous condition as is reasonably possible, and in the meantime the rent
shall be abated in the same proportion as the untenantable portion of the Leased
Premises bears to the whole thereof; but unless Lessor, within sixty (60) days
after the happening of any such casualty, shall notify Lessee of its election to
so restore, this Lease shall thereupon terminate and end. Such restoration by
Lessor shall not include replacement of furniture, equipment or other items that
do not become part of the Building or any improvements to the Leased Premises in
excess of those provided for in the allowance for building standard items.
10. WAIVER OF SUBROGATION
Anything in this Lease to the contrary notwithstanding, Lessor and Lessee
each hereby waives any and all claims against the other, its agents, officers,
directors, shareholders or employees, for loss or damage to the Leased Premises
or the Building, or any personal property of such party therein, that is caused
by or results from fire and other perils insured against under (a) the normal
fire with extended coverage property insurance policies, or (b) the standard
business interruption insurance policies, carried by the parties and in force at
the time of damage or loss. Each party shall cause each such insurance policy
obtained by it to provide that the insurance company waives all right to
recovery by way of subrogation against the other party in connection with any
such damage or loss.
11. USES
The Leased Premises are to be used only for the uses specified in Section
1.6 hereof, and for no other business or purpose without the prior written
consent of Lessor. Lessee shall comply with all applicable laws, ordinances,
rules and regulations in its use and occupancy of the Leased Premises, including
those related to the use and disposal of hazardous substances and materials, and
shall indemnify and hold Lessor harmless from any loss or damage resulting
therefrom. Lessee shall not allow anything to be done in the Leased Premises
which will increase the existing rate of insurance on the Building, and will
immediately reimburse Lessor for any such resulting increase. Lessee shall not
commit or allow to be committed any waste upon the Leased Premises, or any
public or private nuisance or other act or thing which disturbs the quiet
enjoyment of any other tenant in the Building. Lessee shall not, without the
prior written consent of Lessor, use any apparatus, machinery or device in or
about the Leased Premises which will cause any substantial noise or vibration.
If any of Lessees office machines and equipment should disturb the quiet
enjoyment of any other tenant in the Building, then Lessee shall provide
adequate insulation, or take such other action as may be necessary to eliminate
the disturbance. Lessee shall comply with all laws relating to its use of the
Leased Premises.
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12. SIGNS AND ADVERTISING
Lessee shall not inscribe any inscription or post, place, or in any manner
display any sign, notice, picture, placard or poster, or any advertising matter
whatsoever, anywhere in or about the Leased Premises or the Building at places
visible (either directly or indirectly as an outline or shadow on a glass pane)
from anywhere outside the Leased Premises without first obtaining Lessor's
written consent thereto. Any such consent by Lessor shall be upon the
understanding and condition that Lessee will remove the same at the expiration
or sooner termination of this Lease and Lessee shall pay Lessor the cost to
repair any damage to the Leased Premises or the Building caused thereby. Lessor
shall have the right to prohibit any advertising by Lessee which, in its
opinion, tends to impair the reputation of the Building as a first-class
shopping, business or professional area.
13. ACCIDENTS AND INDEMNITY
13.1 Lessee shall protect, defend, indemnify and hold Lessor harmless from
all loss, damage, liability or expense, including attorneys' fees, resulting
from any injury to any person or any loss of or damage to any property caused by
or resulting from any act, omission or negligence of Lessee or any officer,
employee, agent, contractor, invitee, or visitor of Lessee in or about the
Leased Premises or the Building, but the foregoing provision shall not be
construed to make Lessee responsible for loss, damage, liability or expense
resulting from injuries to third parties caused by any act, omission or
negligence of Lessor, or of any officer, employee, agent, contractor, invitee or
visitor of Lessor. Except for the omissions or negligence of Lessor, Lessor
shall not be liable for any loss or damage to person or property sustained by
Lessee, or other persons, which may be caused by the Building or the Leased
Premises, or any appurtenances thereto, being out of repair, or by the bursting
or leakage of any water, gas, sewer or steam pipe, or by theft, or by any act of
neglect of any tenant or occupant of the Building, or of any other person, or by
any other cause of whatsoever nature.
13.2 Liability Insurance. Lessee shall, throughout the term of this Lease
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and any renewal hereof, at its own expense, keep and maintain in full force and
effect, a policy of commercial general liability insurance including a
contractual liability endorsement covering Lessee's obligations under this
Lease, insuring Lessee's activities upon, in or about the Leased Premises or the
Building against claim of bodily injury or death or property damage or loss with
a limit of not less than One Million Dollars ($1,000,000) combined single limit.
13.3 Property Insurance. Lessee shall, throughout the term of this Lease
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and any renewal hereof, at its own expense, keep and maintain in full force
and effect, what is commonly referred to as "all risk" coverage insurance (but
excluding earthquake and flood) on Lessee's leasehold improvements and personal
property and equipment in the Leased Premises in an amount not less than the
current One Hundred Percent (100%) replacement value thereof.
13.4 Insurance Policy Requirements. All insurance under this Section 13
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shall be with companies satisfactory to Lessor and authorized to do business in
Washington, and Lessor shall be named as an additional insured on all such
policies of Lessee. No insurance policy required
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hereunder shall be cancelled or reduced in coverage and each insurance policy
shall provide that it is not subject to cancellation or a reduction in coverage
except after thirty (30) days prior written notice to Lessor. Lessee shall
deliver to Lessor prior to commencement of the lease term and from time to time
thereafter, copies of policies of such insurance or certificates evidencing the
existence and amounts of same and naming Lessor as an additional insured
thereunder. In no event shall the limits of any insurance policy required
hereunder be considered as limiting the liability of Lessee under this Lease.
14. LIENS AND INSOLVENCY
Lessee shall keep the Leased Premises and the Building free from any liens
arising out of any work performed, materials ordered or obligations incurred by
Lessee. If Lessee becomes insolvent, voluntarily or involuntarily bankrupt, or
if a receiver, or assignee or other liquidating officer is appointed for the
business of Lessee, then Lessor, at its option, may immediately or any time
thereafter terminate Lessees right of possession under this Lease.
15. DEFAULT AND RE-ENTRY
Lessee covenants as a material part of the consideration for this Lease to
keep and perform each and all of said terms, covenants and conditions by Lessee
to be kept and performed and that this Lease is made upon the condition of such
performance. Except for a default under the preceding Section 14 for which
immediate right of termination is given to Lessor, if Lessee fails to pay any
installment of rent within three (3) days after written notice, or to perform
any other covenant under this Lease within thirty (30) days after written notice
from Lessor stating the nature of the default, Lessor may terminate this Lease
and re-enter and take possession of the Leased Premises using such force as may
be necessary; provided that if the nature of such default other than for non-
payment of rent is such that the same cannot reasonably be cured within such
thirty-day period, Lessee shall not be deemed to be in default if Lessee shall
within such period commence such cure and thereafter diligently prosecute the
same to completion. If Lessor elects to terminate this Lease, Lessor may declare
all rent owing for the remainder of the Term immediately due and payable, less
the amount Lessee proves could reasonably be collected during such period.
Notwithstanding such retaking of possession by Lessor and/or termination of this
Lease, Lessee's liability for the rent provided herein shall not be extinguished
for the balance of the term of this Lease, and Lessee shall make good to Lessor
any deficiency arising from a reletting of the Leased Premises at a lesser
rental, plus the costs and expenses of renovating or altering the Leased
Premises and the costs and expenses of reletting the Leased Premises, including
but not limited to, lease commissions, tenant improvements, etc. Lessee shall
pay any such deficiency each month as the amount thereof is ascertained by
Lessor. If Lessor retakes possession, Lessor shall have the right to let any
other available space in the Building before reletting or attempting to relet
the Leased Premises, and such action shall not relieve Lessee of any of its
obligations hereunder. All remedies provided herein are cumulative and are in
addition to those provided by law.
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16. REMOVAL OF PROPERTY AND REPLACEMENT OF NON-STANDARD ITEMS
Upon the expiration or termination of the lease term, Lessee shall (a) at
its expense remove Lessees goods and effects and those of all persons claiming
under Lessee, and (b) if Lessee caused the Leased Premises to be improved with
other than building standard ceiling suspension system, acoustical tile ceiling,
fluorescent light fixtures, millwork detail, doors and door frames, hardware or
hard surface floor tile and base, or any corridor adjacent to the core of the
Building to be other than building standard width and construction, Lessee shall
pay Lessor an amount equal to the cost to replace all such non-standard items
with building standard items and the cost to replace such non-standard public
corridor with one of building standard width and construction. Lessee shall also
be required to remove all data and telecommunications cabling installed after
April 1, 1998 for use by Lessee in or around the Leased Premises (including
building telecommunication closets and risers). Any property left in the Leased
Premises after the expiration or termination of the lease term shall be deemed
to have been abandoned and the property of Lessor to dispose of as Lessor deems
expedient at Lessee's expense.
17. NON-WAIVER
Failure of Lessor to insist, in any one or more instances, upon strict
performance of any term, covenant or condition of this Lease, or to exercise any
option herein contained, shall not be construed as a waiver, or a relinquishment
for the future, of such term, covenant, condition or option, but the same shall
continue and remain in full force and effect. The receipt by Lessor of rents
with knowledge of a breach of any of the terms, covenants or conditions of this
Lease to be kept or performed by Lessee shall not be deemed a waiver of such
breach, and Lessor shall not be deemed to have waived any provision of this
Lease unless expressed in writing and signed by Lessor.
18. COSTS AND ATTORNEYS' FEES
Lessee shall reimburse Lessor for all costs, charges, expenses, consultant
fees, expert witness fees and attorneys' fees that Lessor incurs, with or
without litigation, (a) in connection with the enforcement of this Lease or (b)
in connection with any action taken by Lessor in accordance with this Lease to
protect its interests or to recover amounts owed to Lessor under this Lease
including, but not limited to, any action necessitated by a bankruptcy filing by
or against Lessee or the exercise by any other creditor of Lessee of its rights
against Lessee.
19. PRIORITY
Lessee agrees that this Lease shall be subordinate to any first mortgages or
deeds of trust that may hereafter be placed upon the Leased Premises or the
Building containing the same, and to any and all advances to be made thereunder,
and to the interest thereon, and all renewals, replacement and extensions
thereof. Within fifteen (15) days after written request from Lessor, Lessee
shall execute any documents that may be necessary or desirable to effectuate the
subordination of this Lease to any such mortgages or deeds of trust and shall
execute estoppel
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certificates as requested by Lessor from time to time in the standard form of
any such mortgagee or beneficiary.
20. CONDEMNATION
If all of the Leased Premises or such portions of the Building as may be
required for the reasonable use of the Leased Premises, are taken by eminent
domain, this Lease shall automatically terminate as of the date Lessee is
required to vacate the Leased Premises and all rent shall be paid to that date.
In case of a taking of a part of the Leased Premises, or a portion of the
Building not required for the reasonable use of the Leased Premises, then this
Lease shall continue in full force and effect and the rent shall be equitably
reduced based on the proportion by which the floor area of the Leased Premises
is reduced, such rent reduction to be effective as of the date possession of
such portion is delivered to the condemning authority. Lessor reserves all
rights to damages to the Leased Premises for any taking by eminent domain, and
Lessee hereby assigns to Lessor any right Lessee may have to such damages or
award, and Lessee shall make no claim against Lessor for damages for termination
of the leasehold interest or interference with Lessee's business. Lessee shall
have the right, however, to claim and recover from the condemning authority
compensation for any loss to which Lessee may be put for Lessee's moving
expenses and for the interruption of or damage to Lessee's business, provided,
that such damages may be claimed only if they are awarded separately in the
eminent domain proceeding and not as part of the damages recoverable by Lessor.
21. ASSIGNMENT AND SUBLETTING
21.1 Lessee shall not, without the prior written consent of Lessor, assign
this Lease or any interest therein, or sublet the Leased Premises or any part
thereof, or permit the use of the Leased Premises by any party other than Lessee
or mortgage or otherwise transfer this Lease (collectively "transfer"). Such
consent shall be entirely discretionary with Lessor, except as otherwise
provided in Section 21.6. Consent to one such transfer shall not destroy or
waive this provision, and all subsequent transfers shall likewise be made only
upon obtaining prior written consent of Lessor. Sublessees or assignees shall
become directly liable to Lessor for all obligations of Lessee hereunder,
without relieving Lessee of any liability.
21.2 Anything contained herein to the contrary notwithstanding, Lessor
hereby consents to an assignment of this Lease, or subletting of all or part of
the Leased Premises, to (a) the parent of Lessee or to a wholly owned subsidiary
of Lessee or of such parent, (b) any corporation into which or with which Lessee
may be merged or consolidated, provided that the net worth of the, resulting
corporation is at least equal to the greater of (i) the net worth of Lessee on
the date hereof or (ii) the net worth of Lessee immediately prior to such merger
or consolidation, or (c) any entity to which Lessee sells all or substantially
all of its assets, provided that such entity expressly assumes all of Lessee's
obligations hereunder. An assignment forbidden within the meaning of this
Section includes without limitation one or more sales or transfers, by operation
of law or otherwise, or creation of new stock, by which an aggregate of more
than fifty percent (50%) of Lessee's stock shall be vested in a party or parties
who are nonstockholders as of the date hereof. This Section 21.2 shall not apply
if Lessee's stock is or becomes listed on a
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recognized security exchange or if at least eighty percent (80%) of its stock is
owned by a corporation whose stock is listed on a recognized security exchange.
21.3 If Lessee wishes to assign this Lease or sublet the Leased Premises or
any part therof, Lessee shall first give written notice ("Lessee's Notice") to
Lessor of its intention to do so, which notice shall contain the name of the
proposed assignee or subtenant (collectively "transferee"), the nature of the
proposed transferee's business to be carried on in the Leased Premises and the
terms and provisions of the proposed assignment or sublease. Lessee shall also
provide Lessor with a copy of the proposed assignment or sublease when it is
available and such financial and other information with respect to the proposed
transferee and transfer that Lessor may reasonably require.
At any time within sixty (60) days after Lessor's receipt of Lessee's
Notice, Lessor may by written notice ("Lessor's Notice") to Lessee elect to, (a)
recapture the affected space by terminating this Lease as to the portion of the
Leased Premises covered by the proposed sublease or assignment effective upon a
date specified in Lessor's Notice, which date shall not be earlier than thirty
(30) days nor later than sixty (60) days after Lessor's Notice, with a
proportionate reduction of all rights and obligations of Lessee hereunder that
are based on the area of the Leased Premises, (b) consent to the proposed
sublease or assignment, or (c) disapprove the proposed sublease or assignment.
If Lessor's Notice states Lessor elects to exercise the recapture option
described above, Lessee shall have the option for a period of ten (10) days
after receipt of Lessor's Notice by written notice to Lessor within such period
to withdraw Lessee's Notice of proposed transfer and not proceed with the
proposed sublease or assignment.
21.4 Whether or not Lessor consents to a proposed transfer, Lessee shall
reimburse Lessor on demand for any and all costs that may be incurred by Lessor
in connection with any proposed transfer including, without limitation, the cost
of investigating the acceptability of the proposed transferee and attorneys'
fees incurred in connection with each proposed transfer.
21.5 If Lessor consents to any proposed assignment or sublease, (a) Lessee
may enter into same, but only upon the specific terms and conditions set forth
in Lessee's Notice, (b) any sublease or assignment shall be subject to, and in
full compliance with, all of the terms and provisions of this Lease, (c) the
consent by Lessor to any assignment of sublease shall not relieve Lessee of any
obligation under this Lease, (d) each transferee shall assume all obligations of
Lessee under this Lease and shall be and remain jointly and severally liable
with Lessee for the payment of rent, and the performance of all of the terms,
covenants, conditions and agreements herein contained on Lessees part to be
performed, (e) no assignment shall be binding on Lessor unless Lessee and the
transferee shall deliver to Lessor a counterpart of the assignment that contains
a covenant of assumption by the transferee satisfactory to Lessor and is
otherwise satisfactory in form and substance to Lessor, and (f) any rent or
other consideration accruing to Lessee as the result of such assignment of
sublease which is in excess of the rent then being paid by Lessee for the
portion of the Leased Premises affected by the assignment or sublease, shall be
paid by Lessee to Lessor monthly as additional rent.
11
21.6 Notwithstanding the foregoing, in the event of a proposed assignment
or sublease, if Lessor does not exercise its option to recapture under Section
21.3, then Lessor will not unreasonably withhold its consent thereto if (a)
Lessee is not then in default hereunder, (b) the proposed transferee will
continuously occupy and use the Leased Premises for the term of the transfer;
(c) the use by the proposed transferee will be a business office consistent in
quality to and otherwise compatible with the other tenants in the Building, (d)
the proposed transferee is reputable and of sound financial condition, and (e)
the Base Monthly Rent under this Lease is amended (if necessary), to be the base
monthly rent Lessor is then willing to accept from others for the Leased
Premises during the remaining term of the Lease as assigned or the term of the
sublease, which shall be the then fair rental value thereof as reasonably
determined by Lessor, which may be a fixed monthly amount or an amount that
increases periodically and (f) the use by the proposed transferee will not
violate any rights of exclusivity granted to other tenants or any other
restrictions on use to which Lessor is subject.
21.7 Any option(s) granted to Lessee in this Lease or any option(s) granted
to Lessee in any amendments to this Lease, to the extent that said option(s)
have not been exercised, shall terminate and be voided in the event this Lease
or any portion thereof is assigned, or any part of the Leased Premises are
sublet, or all or any portion of Lessee's interest in the Leased Premises are
otherwise transferred.
22. RULES, REGULATIONS AND MISCELLANEOUS
22.1 Lessee shall use the Leased Premises and the public areas in the
Building in accordance with such reasonable rules and regulations as may from
time to time be adopted by Lessor for the general safety, care and cleanliness
of the Leased Premises or the Building, and the preservation of good order
therein, and shall cause Lessee's employees, agents, invitees and visitors to
abide by such rules and regulations.
22.2 Lessee shall not place any boxes, cartons, or other rubbish in the
corridors or other public areas of the Building.
22.3 Lessor does not guarantee the continued present status of light or air
over any premises adjoining or in the vicinity of the Building. Any diminution
or shutting off of light, air or view by any structure which may be erected on
lands near or adjacent to the Building shall in no way affect this Lease or
impose any liability on Lessor.
22.4 Lessee shall conserve heat, air-conditioning, water and electricity and
shall use due care in the use of the Leased Premises and of the public areas in
the Building, and without qualifying the foregoing, shall not neglect or misuse
water fixtures, electric lights and heating and air-conditioning apparatus.
22.5 Lessor shall not be liable for the consequences of admitting by pass-
key or refusing to admit to the Leased Premises the Lessee or any of the
Lessee's agents or employees or other persons claiming the right of admittance.
12
22.6 Lessee shall peaceably and quietly enjoy the Leased Premises so long
as it pays the rent payable by it hereunder and is not in default in performing
all the provisions of this Lease.
22.7 The titles to sections of this Lease are for convenience only and
shall have no effect upon the construction or interpretation of any part thereof
This Lease shall be governed by the laws of the State of Washington.
22.8 All notices under this Lease shall be in writing and delivered in
person or sent by registered or certified mail to Lessor at the same place rent
payments are made, and to Lessee at the Leased Premises, or such addresses as
may hereafter be designated by either party in writing. Notices mailed as
aforesaid shall be deemed given on the third business day after the date of such
mailing.
22.9 The rent herein is exclusive of any sales, business and occupation,
gross receipts or other tax based on rents or tax upon this Lease or tax upon or
measured by the number of employees of Lessee or the area of the Leased Premises
or any similar tax or charge. If any such tax or charge be hereafter enacted,
Lessee shall reimburse to Lessor the amount thereof together with each Base
Monthly Rent payment. If it shall not be lawful for Lessee so to reimburse
Lessor, the Base Monthly Rent payable to Lessor under this Lease shall be
revised to net Lessor the same net rental after imposition of any such tax or
charge upon Lessor as would have been payable to Lessor prior to the imposition
of such tax or charge. Lessee shall not be liable to reimburse Lessor for any
federal income tax.
22.10 Lessee shall not place any plants, sculptures or other items so as to
be located wholly or partially in the public corridor portions of the Building
without Lessor' s prior written approval.
22.11 All improvements, alterations or additions which may be made by either
of the parties hereto upon the Leased Premises, except movable office
furnishings, shall become part of the Building when made, and shall remain upon
and be surrendered with the Leased Premises as a part thereof. The maintenance
and care of such improvements shall be the responsibility of Lessee, except as
otherwise provided in Section 9. For example, Lessor shall vacuum, but Lessee
shall shampoo, repair and replace carpets. Wall paneling, partitions, closets,
built-in cabinets, sinks, doors, however attached, floor coverings and other
built-in units of all kinds are a partial listing of improvements that become
property of Lessor as aforesaid. Wall hung office furniture, refrigerator/sink
units and other electrical appliances may be removed by Lessee provided the
reasonably estimated amount to cap plumbing and repair screw holes or other
damage is paid by Lessee to Lessor prior to such removal and such removal does
not cause any material damage to the property.
22.12 The freight elevator shall not be used by Lessee or others to move
furniture, supplies or other items to or from the Leased Premises unless Lessee
prior to such use has scheduled and coordinated such use with Lessor's Service
Department. Lessee shall not permit passenger elevators to be used to move
furniture, supplies or other items to or from the Leased
13
Premises. Lessee shall cause its suppliers and other providers to comply with
the foregoing provisions.
22.13 The name of the Building may at anytime be changed by Lessor.
22.14 This Lease is the final and complete expression of the parties'
agreement and no representations, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force and effect.
Neither this Lease nor any provision hereof may be changed, waived, discharged
or terminated orally, but only by instrument in writing executed by Lessor and
Lessee.
22.15 UNICO Properties, Inc. (UNICO) is Lessor's manager and rental agent
in all matters concerning this Lease and the Leased Premises, and the Lessee,
until notified in writing to the contrary by either the Lessor or UNICO or the
Assignee of Lessor's interest under this Lease, shall recognize such agency and
pay all rental, furnish all statements, and give any notice which the Lessee may
be under the duty of giving hereunder, or may elect to give hereunder, to UNICO
at its office in the City of Seattle, King County, Washington, instead of to the
Lessor. As long as such agency shall exist, the rights and options extended to
Lessor shall be deemed extended to UNICO, and each and every other term and
provision of this Lease which is in any way beneficial to the Lessor, including
especially every stipulation against liability, or limiting liability, shall
inure to the benefit of UNICO and its agents and shall be applicable to UNICO
and its agents in the same manner and as fully and with the same effect as to
Lessor. Whenever Lessor's consent is required, Lessee shall request such consent
from UNICO. The consent of UNICO shall be deemed the consent of UNICO and
Lessor.
22.16 Lessee agrees to look only to the equity of Lessor in the Building
and the Land and not to Lessor personally with respect to any obligations or
payments due or which may become due from lessor hereunder, and no other
property or assets of Lessor or any partner, joint venturer, member, officer,
director, shareholder, agent, or employee of Lessor, disclosed or undisclosed,
shall be subject for the satisfaction of Lessee's claims under or with respect
to this Lease, and no partner, member, officer, director, agent or employee of
Lessor shall be personally liable in any manner or to any extent in connection
with this Lease. If at any time the holder of Lessor's interests hereunder is a
partnership, limited liability company or joint venture, a deficit in the
capital account of any partner, member or joint venturer shall not be considered
an asset of such partnership, limited liability company or joint venture. In the
event of a sale or conveyance by Lessor of the Building, the same shall operate
to release Lessor from any and all obligations and liabilities on the part of
Lessor accruing from and after the effective date of the sale or conveyance.
22.17 Broker Commission Lessee shall defend, indemnify and hold Lessor
-----------------
harmless from all claims and liabilities or expenses arising from agreements or
other arrangements made by or on behalf of Lessee with any broker or finders.
Notwithstanding the foregoing, Lessor acknowledges the representation of Lessee
by Colliers Macaulay Nicolls International in connection with this Lease, and
Lessor shall pay a broker's commission to Colliers Macaulay Nicolls
International in
14
keeping with Lessor's standard policy, and any indemnity by Lessee set forth
herein shall not apply to any claim by Colliers Macaulay Nicolls International
against Lessor.
22.18 Security Deposit Lessee has deposited the sum specified in Section
----------------
1.10 with Lessor. Lessor shall pay the remaining balance thereof to Lessee,
without any interest thereon, within thirty (30) days after the expiration or
prior termination of the lease term, or any extension thereof, if Lessee has
fully performed all of its obligations under this Lease. Lessor may withdraw
from the deposit the amount of any unpaid rent or additional rent or other
charges not paid to Lessee when due, and Lessee shall immediately redeposit an
amount equal to that so withdrawn.
22.19 Holdover If Lessee remains in possession of all or part of the Leased
--------
Premises after the expiration of the term of this Lease, with or without
Lessor's written consent, for each month or partial month of such possession,
Lessee shall pay Lessor an amount equal to 150% of the Base Monthly Rent payable
hereunder immediately prior to the expiration of the term. Such holdover by
Lessee shall not be deemed an extension of the term or the grant by Lessor to
Lessee of a month to month tenancy. Lessee shall also indemnify and hold Lessor
harmless from all loss, cost, liability and expense incurred by Lessor if Lessee
remains in such possession of all or part of the Leased Premises without
Lessor's prior written consent.
22.20 Recording Neither Lessor nor Lessee shall record this Lease or any
---------
memorandum thereof.
22.21 Directory Board Lessor shall, throughout the term of this Lease,
---------------
maintain a directory board in the main lobby of the building which shall list
Lessee, and up to ten (10) of Lessee's employees. The cost of said designations
shall be at Lessor's expense for the initial ten (10) designations and at
Lessee's expense thereafter.
22.22 Authority Each individual executing this Lease on behalf of Lessee
---------
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of Lessee and that this Lease is binding on Lessee in
accordance with its terms.
23. SUCCESSORS
All the covenants, agreements, terms and conditions contained in this Lease
shall apply to and be binding upon Lessor and Lessee and their respective heirs,
executors, administrators, successors and assigns.
24. SHARED TENANT SERVICES
Lessee, acknowledges that any provision of telecommunications and office
automation services and equipment ("Shared Tenant Services") by a gird party
provider, including but not limited to Shared Technologies Inc., its agents,
affiliates and successors (the "Provider") is entirely separate and distinct
from this Lease agreement and that Lessor has no duty of performance concerning
the provision of Shared Tenant Services. Lessee hereby agrees to look solely to
the provider for any failure in the provision of Shared Tenant Services.
15
25. AMERICANS WITH DISABILITIES ACT (ADA) COMPLIANCE
Lessor and Lessee acknowledge that, in accordance with the provisions of
the Americans with Disabilities Act (the "ADA"), responsibility for compliance
with the terms and conditions of Title III of the ADA may be allocated as
between Lessor and Lessee. Notwithstanding anything to the contrary contained in
the Lease, Lessor and Lessee agree that the responsibility for compliance with
the ADA (including, without limitation, the removal of architectural and
communications barriers and the provision of auxiliary aids and services to the
extent required) shall be allocated as follows: (i) Lessee shall be responsible
for compliance with the provisions of Title III of the ADA for any construction,
renovations, alterations and repairs made within the Leased Premises if such
construction, renovations, alterations and repairs are made by Lessee, at its
expense without the assistance of the Lessor; (ii) Lessee shall be responsible
for compliance with the provisions of Title III of the ADA for all construction,
renovations, alterations and repairs Lessor makes within the Leased Premises,
whether at Lessor's or Lessee's expense; and (iii) Lessor shall be responsible
for compliance with the provisions of Title III of the ADA for all exterior and
interior areas of the Building not included within the Leased Premises. Lessor
agrees to indemnify and hold Lessee harmless from and against any claims,
damages, costs and liabilities arising out of Lessor's failure, or alleged
failure, as the case may be, to comply with Title III of the ADA, which
indemnification obligation shall survive the expiration or termination of this
Lease. Lessee agrees to indemnify and hold Lessor harmless from and against any
claims, damages, costs and liabilities arising out of Lessee's failure, or
alleged failure, as the case may be, to comply with Title III of the ADA, which
indemnification obligation shall survive the expiration or termination of this
Lease. Lessor and Lessee each agree that the allocation of responsibility for
ADA compliance shall not require Lessor or Lessee to supervise, monitor or
otherwise review the compliance activities of the other with respect to its
assumed responsibilities for ADA compliance as set forth in this Section. The
allocation of responsibility for ADA compliance between Lessor and Lessee, and
the obligations of Lessor and Lessee established by such allocations, shall
supersede any other provisions of the Lease that may contradict or otherwise
differ from the requirements of this Section.
26. TENANT IMPROVEMENTS
Prior to April 1, 1998, Lessor shall, at Lessor's expense, complete the
following work within the Leased Premises:
(a) Construct, finish and paint new demising walls on the west side and the
east side of the Leased Premises, in the locations shown on Exhibit A.
Electrical work required in the construction of such demising walls shall
be paid for by Lessee.
(b) Construct an access corridor and new door for the main entrance to the
Leased Premises on the west side of the elevator lobby, as shown on Exhibit
A. Notwithstanding Section 16 above, Lessee shall have no obligation to
pay Lessor at the end of the Lease term for the cost to replace the access
corridor.
16
27. OPTION TO CANCEL
Lessor and Lessee each shall have the option to terminate this Lease upon
ninety (90) days prior written notice. In the event the Lease is terminated
prior to the expiration of the Lease, Lessee shall pay to Lessor the unamortized
commission fee plus interest at eleven percent (11%) per annum.
IN WITNESS WHEREOF, this Lease has been executed by Lessor and Lessee as of
the day and year first above set forth.
LESSEE: LESSOR:
UNION SQUARE LIMITED
ATRIEVA CORPORATION, a PARTNERSHIP, a Washington Limited
Washington corporation Partnership
By UNICO PROPERTIES, INC.
(Manager and authorized rental agent for
Union Square Limited Partnership)
By /s/ALAN J. HIGGINSON
--------------------
Its President & CEO
---------------
By /s/JOHN SCHOETTLER
------------------
John Schoettler, Vice President
17
LESSOR'S AKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 11th day of February, 1998, before me personally appeared John
---- ---------
Schoettler, to me known to be the Vice President of UNICO PROPERTIES, 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 and Union Square Limited Partnership, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seal affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
[NOTARY SEAL GOES HERE] /s/ANNE VAN HEUSDEN
-------------------
Anne Van Heusden
Notary Public in and for the State of
Washington, residing at Bellevue.
My commission expires: 3-10-2000.
LESSEE'S CORPORATE ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 28th day of January, 1998, before me personally appeared Alan J.
---- ------- -------
Higginson to me known to be President and CEO of ATRIEVA CORPORATION, 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
they (he or she) were authorized to execute the said instrument and that the
seal affixed (if any) is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/LAURI GAYLE FULLNER
----------------------
(Print name)Lauri Gayle Fullner
Notary Public in and for the State of
Washington,
residing at Seattle
-------
My commission expires: 10-30-00
--------
[THIS PAGE IS BLANK]
------
UNION
------
SQUARE
------
DATE: March 9,1999
TO: Mr. Kern Maresca
Atrieva Corporation
600 University Street #911
Seattle, WA 98101
We are forwarding the below via:
[ ] US Mail
[ ] Courier Delivery
[X] Personal Delivery
[ ] Express Overnight
[ ] Others ____________
COPIES DATE DESCRIPTION
1 01/15/1999 Executed copy of Atrieva Corporation's First
Amendment to Lease for Rooms 905-921, One Union
Square, Seattle, WA.
THE AFOREMENTIONED DOCUMENTS ARE TRANSMITTED as checked below:
[ ] For approval
[X] For your information/files
[ ] As requested previously discussed
[ ] For your review and comment
[ ] Signature and notary
REMARKS
BY: /s/ARNE GILLAM
Arne Gillam
Director of Leasing
Union Square
[STAMPED MARKED "ORIGINAL" GOES HERE]
FIRST AMENDMENT TO LEASE
Lessor: Union Square Limited Partnership
Lessee: Atrieva Corporation
Premises: Commonly referred to as Rooms 905-21 in the Building as more
particularly referred to in the Lease.
Date of this
Amendment: January 15,1999
Lessor and Lessee are parties to a Lease dated January 27, 1998, and desire to
amend the same as follows:
1. Section 1.3 Term shall be changed from [***], to a term of [***].
2. Section 1.4 Rent is changed to read [***].
3. Section 27 is deleted.
4. All other terms and conditions of the Lease are to remain the same.
Please execute all three (3) originals of the First Amendment to Lease, have
your signature witnessed by a Notary Public, and return all three originals to
my attention. Upon receipt of the same I will do likewise returning one original
for your records.
Lessee: Lessor:
Atrieva Corporation Union Square Limited Partnership,
Washington Limited Partnership by
/s/KERN MARESCA Unico Properties, Inc., (manager and leasing
agent for Union Square Limited Partnership)
By_________________ By /s/DONALD M. WISE
-----------------
Its VP Finance Its Senior Vice President
---------- ---------------------
Date 3-4-99 Date 3-8-99
------ ------
LESSEE'S CORPORATE ACKNOWLEDGEMENT
STATE OF WAHINGTON )
) ss.
COUNTY OF KING )
On this 4th day of March, 1999, before me personally appeared Kern Maresca
to me known to be the Vice President of Finance of Atrieva Corporation, 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
they (he or she) were authorized to execute the said instrument and that the
seal affixed (if any) is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/SHIELAH C. SABALZA
---------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
LESSOR'S AKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 8th day of March, 1999, before me personally appeared Donald M.
Wise, to me known to be the Senior Vice President of UNICO PROPERTIES, 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 and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seal affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/SHIELAH C. SABALZA
---------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
[THIS PAGE IS BLANK]
SECOND AMENDMENT TO LEASE
Lessor: UNION SQUARE LIMITED PARTNERSHIP
Lessee: Atrieva Corporation, a Washington corporation
Premises: Commonly referred to as Suite 911 in the One Union Square
Building as more particularly described in the Lease.
Date of this Amendment: September 15, 1999
Lessor and Lessee are parties to Lease dated January 27, 1998, as amended
January 15, 1999, (the Lease) and desire to further amend the Lease. The parties
mutually agree:
1. Section 1.1, Leased Premises is hereby amended from rooms 905-921 to rooms
---------------
911-921.
2. Section 1.2, Floor Areas is hereby amended from 8,389 usable square feet;
-----------
9,396 rentable square feet to 6,391 usable square feet; 7,221 rentable square
feet.
3. Section 1.2, Floor Areas is hereby amended from 1.52946 percent of the
------------
rentable area of the Building to 1.0982 percent.
4. Section 1.3 Term is hereby amended from [***].
----
5. Section 1.4 Rent is hereby amended as follows:
----
Commencing [***] and thereafter on the first day of each calendar month until
[***], Lessee shall pay base monthly rent of [***] for the entire Leased
Premises (9,396 rsf).
Commencing [***] and thereafter on the first day of each calendar month until
[***], Lessee shall pay base monthly rent of [***].
Commencing [***] and thereafter on the first day of each calendar month until
[***], Lessee shall pay base monthly rent of [***].
Commencing [***] and thereafter on the first day of each calendar month until
[***], Lessee shall pay base monthly rent of [***].
Commencing [***] and thereafter on the first day of each calendar month until
[***], Lessee shall pay base monthly rent of [***].
Commencing [***] and thereafter on the first day of each calendar month until
[***], Lessee shall pay base monthly rent of [***].
6. Section 1.9 Base Indices is incorporated with a base year of 1999.
------------
Consumer Price Index for September 1999.
Cost of electricity per kilowatt-hour (average) for 12 months ending
September 30, 2000.
Janitorial hourly labor rate as of September 30, 1999.
Operating Cost Adjustment Base: $6.96 per sq. ft, per yr.
The first rent adjustment pursuant to Section 27 will be January 1, 2001.
7. Section 21.8
Lessee shall be permitted to sublease individual offices to any subagents
and/or clients, without obtaining Lessor's consent. Otherwise, Lessee shall
be permitted to sublease or assign all or a portion of the Premises, subject
to Lessor's consent, which shall not be unreasonably withheld. Any profits
from a sublease or assignment above and beyond the documented rent that
Lessee is paying shall be split 50/50 between Lessor and Lessee. Said profits
shall be net of any fees associated with subleasing or assigning the
Premises.
8. Section 27. Option to Cancel shall be deleted and replaced with Sec. 27
Annual Rent Adjustment (Operating Expenses).
27.1 A portion of the initial rental rate shall be adjusted January 1 of
each year during the term of this Lease commencing January 1, 2001. Three
separate indicators, each to be factored separately by one-third of the
Operating Cost Adjustment Base, are used to provide a reasonably broad base
to determine the amount of such adjustment. These indicators are the Consumer
Price Index, the cost of electricity and janitorial hourly labor rate.
27.2 The base indices for the Consumer Price Index, the cost of
electricity and janitorial hourly labor rate, shall be as stated in Section
1.5. Succeeding indices for each of these indices will be calculated annually
thereafter, using the succeeding data for the month of September, 12-month
period ending September 30, and September 30, respectively. The ratio that
each succeeding index bean to its base index shall be reduced by 1.00 and
multiplied by one-third of the Operating Cost Adjustment Base, and by the
rentable area of the Leased Premises. Each January 1, commencing the calendar
year specified in Section 1.5, the monthly rent otherwise provided for in
this Lease shall be increased by 1/12th the sum of the amounts so determined.
In no event shall the Base Monthly Rent be decreased.
27.3 The Consumer Price Index to be used shall be the Consumer Price
Index for all urban consumers, U.S. city average, all items, series 1982-84
equals 100 (as published by the U.S. Department of Labor, Bureau of
Statistics). If this index is revised or changed
Page 2
(as, for example, by taking the average index for different years as the base
figure of 100) the base index shall all be adjusted accordingly. If this
index is discontinued, the index promulgated by the Department of Labor,
which most closely approximates the above-referenced index, shall be used and
the base index shall be adjusted accordingly.
27.4 The cost of electricity to be used shall be the average cost to
Lessor per kilowatt-hour of electricity consumed in the Building for the 12-
month periods ending the September 30 specified in Section 1.5 and each
September 30 thereafter.
27.5 The janitorial hourly labor rate to be used shall be the hourly
compensation paid to persons employed as janitors in the Building, including
all applicable taxes and fringe benefits payable by employers.
9. Lessor shall provide Lessee with a tenant improvement allowance of [***] per
usable square foot for improvements to the Leased Premises, including the
demising of the downsized space. The allowance amount shall be reduced to
reimburse Lessee for previously installed carpet. Lessee shall furnish
Lessor with an invoice stipulating such amount.
10. Sec. 28 Option to Extend
[***] provided Lessee fully satisfies the conditions hereafter stated. If so
extended, this lease shall continue as though the extended term were part of the
original term except the base monthly rent pursuant to Section 1.4 shall be
[***].
Lessee's right to extend the lease as above stated is subject to the following
conditions:
(a) Lessee shall give Lessor six (6) months prior written notice pursuant
to this section of the Lease.
(b) Lessee shall not be in default under the Lease when said notice is
given.
(c) This Lease shall be in full force and effect when said notice is
given.
(d) Lessee shall have confirmed in writing Lessee's obligation to pay
the base monthly rent required by Lessor for the extended term within 30
(30) days of notification by Lessor of said rental rate.
(e) Upon receipt of Lessee's acknowledgement, Lessor shall prepare an
amendment modifying the lease.
11. Sec. 29 Brokerage Fees shall be added to read as the following:
A brokerage fee of [***] per rentable square foot will be paid to
Colliers International, one-half at signing of the lease and one-half
upon occupancy.
Page 3
12. Exhibit "A" of the Lease, changed to reflect the revised floor plan, is
attached hereto an made a part hereof.
13. All other terms and conditions are to remain the same.
Lessee: Lessor:
ATRIEVA CORPORATION, A UNION SQUARE LIMITED
WASHINGTON CORPORATION, PARTNERSHIP,
a Washington corporation a Washington Limited Partnership
By UNICO PROPERTIES, INC.
(Manager and authorized rental agent for
Union Square Limited Partnership)
By /s/KERN MARESCA By /s/DONALD M. WISE
--------------- -----------------
Kern Maresca Donald M. Wise
Its Vice President of Finance Its Senior Vice President
------------------------- ---------------------
Date: 9-17-99 Date: 9-20-99
------- -------
Page 4
LESSOR'S ACKNOWLEDGMENT
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
On this 20th day of September, 1999, before me personally appeared Donald M.
Wise, to me known to be the Senior Vice President of UNICO PROPERTIES, 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 and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seal affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/SHIELAH C. SABALZA
---------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
LESSEE'S CORPORATE ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 17th day of September, 1999, before me personally appeared Kern
Maresca to me known to be the Vice President of Finance of Atrieva Corporation,
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 they (he or she) were authorized to execute the said instrument and that
the seal affixed (if any) is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/ SHIELAH C. SABALZA
---------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
Page 6
[MAP OF BUILDING GOES HERE]
ATRIEVA CORPORATION
Rooms 905-921
EXHIBIT A
[MAP OF BUILDING GOES HERE]
Atrieva Corporation
Rooms 911-921 (Amended)
EXHIBIT A
[THIS PAGE IS BLANK]
--------
UNION
--------
SQUARE
--------
DATE: October 11,1999
TO: Mr. Kern Maresca
Atrieva Corporation
600 University Street #911
Seattle, WA 98101
We are forwarding the below via:
[X] US Mail
[ ] Courier Delivery
[ ] Personal Delivery
[ ] Express Overnight
[ ] Others ____________
COPIES DATE DESCRIPTION
1 09/24/1999 Executed copy of Atrieva Corporation's Third
Amendment to
Lease for Rooms 911 of One Union Square in
Seattle, Washington.
THE AFOREMENTIONED DOCUMENTS ARE TRANSMITTED as checked below:
[ ] For approval
[X] For your information/files
[ ] As requested previously discussed
[ ] For your review and comment
[ ] Signature and notary
REMARKS
THIRD AMENDMENT TO LEASE
Lessor Union Square Limited Partnership
Lessee: Atrieva Corporation
Premises: Commonly referred to as Suite 911 in the One Union Square Building
as more particularly described in the Lease.
Date of this
Amendment September 24, 1999
Lessor and Lessee are parties to Lease dated January 27, 1998 as amended and
desire to further amend the lease as follows:
Section 30, Real Property Taxes shall be added as follows:
[***]
The foregoing charges constitute additional rent that shall be deemed to accrue
uniformly during the calendar year in which the payment is due. Payment under
the provisions of this Section for the year the lease term ends shall be
prorated, based on reasonable projections of the increase through the
termination of this Lease and shall be due thirty (30) days before such
termination.
All other terms and conditions are to remain the same.
Lessee: Lessor:
Atrieva Corporation, a Washington Union Square Limited Partnership
Corporation a Washington Limited Partnership
By Unico Properties, Inc. (Manager and
Authorized rental agent for Union Square
Limited Partnership)
By /s/ KERN MARESCA By /s/ DONALD M. WISE
--------------- -----------------
Kern Maresca Donald M. Wise
Its Vice President Its Senior Vice President
- --------------------- ---------------------
Date 9-29-99 Date 9-29-99
------- -------
LESSEE'S CORPORATE ACKNOWLEDGEMENT
STATE OF WAHSINGTON )
) ss.
COUNTY OF KING )
On this 29th day of September, 1999, before me personally appeared Kern
Maresca to me known to be the Vice President of Finance of Atrieva Corporation,
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 they (he or she) were authorized to execute the said instrument and that
the seal affixed (if any) is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ SHIELAH C. SABALZA
---------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
LESSOR'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 29th day of September, 1999, before me personally appeared Donald M.
Wise, to me known to be the Senior Vice President of UNICO PROPERTIES, 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 and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seat affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year fast above written.
/s/ SHIELAH C. SABALZA
---------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
[ORIGINAL STAMPED HERE]
FIRST AMENDMENT TO LEASE
Lessor: Union Square Limited Partnership
Lessee: Atrieva Corporation
Premises: Commonly referred to as Rooms 905-21 in the Building as more
particularly referred to in the Lease.
Date of this
Amendment: January 15,1999
Lessor and Lessee are parties to a Lease dated January 27, 1998, and desire to
amend the same as follows:
1. Section 1.3 Term shall be changed from [***], to a term of [***].
2. Section 1.4 Rent is changed to read [***] commencing [***] and ending [***].
3. Section 27 is deleted.
4. All other terms and conditions of the Lease are to remain the same.
Please execute all three (3) originals of the First Amendment to Lease, have
your signature witnessed by a Notary Public, and return all three originals to
my attention. Upon receipt of the same I will do likewise returning one original
for your records.
Lessee: Lessor:
Atrieva Corporation Union Square Limited Partnership, a
Washington Limited Partnership by
/s/KERN MARESCA Unico Properties, Inc., (manager and leasing
agent for Union Square Limited Partnership)
By By /s/ DONALD M. WISE
------------------ ------------------
Its VP Finance Its Senior Vice President
---------- ---------------------
Date 3-4-99 Date 3-8-99
------ ------
LESSEE'S CORPORATE ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 4th day of March, 1999, before me personally appeared Kern Maresca
to me known to be the Vice President of Finance of Atrieva Corporation, the
corporation that executed the within and foregoing instrument, and acknowledged
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 they (he or
she) were authorized to execute the said instrument and that the seal affixed
(if any) is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/ SHIELAH C. SABALZA
----------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
LESSOR'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 8th day of March, 1999, before me personally appeared Donald M.
Wise, to me known to be the Senior Vice President of UNICO PROPERTIES, 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 and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seal affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seat the day and year first above written.
/s/ SHIELAH C. SABALZA
----------------------
Shiela C. Sablza
[NOTARY SEAL GOES HERE] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.