EXHIBIT 10.13
Agreement of Lease
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This Agreement ("Lease"), dated as of the 1st day of February, 1998 is by and
between SIXTH & VIRGINIA PROPERTIES, a Washington General Partnership,
hereinafter called "Owner," and Medlynx, LLC a Washington Corporation,
hereinafter called "Tenant."
1 NONSTANDARD PROVISIONS
The following constitute the nonstandard provisions of this Lease and are
referred to elsewhere herein.
a. Floor of The Westin Building on which Premises are located:
21/st/ Floor, Suite 2105
b. Agreed floor area of Premises:
Approximately two hundred seven (207) square feet on the 21/st/ floor
that includes an allowance for core and/or common areas used by
Tenant.
c. The term of this Lease (hereafter "Lease Term") shall be One ( 1 )
year and shall commence on the 1/st/ day of February, 1998 and end on
the 31st day of January, 1999.
d. Monthly Base Rent:
Seven Hundred Seventy Seven ($777) Dollars
e. Rent per day during any occupancy prior to commencement of Lease Term:
n/a
f. Reimbursement to Owner for Special Improvements:
Tenant, takes premises "as-is" and at Tenant's cost, Owner shall
install and supply all improvements to the Premises. All such
improvements shall be to building standard except as noted and shall
be completed in accordance with drawings prepared at Tenant's cost, by
Owner's staff end approved in advance by Owner and Tenant. Tenant
shall reimburse Owner for all work within 10 days of receipt of an
invoice.
g. Use permitted on Premises:
Telecommunications switching facility and general office use
h. Tenant's address for notices if other than Premises:
X.X. Xxx 00000
Xxxxxxxx, XX 00000
i. Tenant's billing address if other than Premises:
same as above
j. Parking:
During Lease Term, Owner shall provide Tenant with unreserved parking
spaces including an appropriate pro-rata share of "carpool" stall for
one (1) automobile in The Westin Building Garage. The space shall be
made available during periods of typical office use from 7:00 a.m. to
6:00 p.m. five days per week, Monday through Friday, and at other
times for the persons to whom such spaces am regularly rented who wish
to work in Building.
Tenant shall pay in advance the charge established by Owner for said
space, in addition to rent hereunder. If Tenant fails to timely pay
such charges, Owner may by written notice to Tenant elect either to
proceed as or provided in Article 14 or to cease to provide all or any
number of the
be one hundred seventy dollars ($170) per month (including tax). From
time to time during this Lease, the charge for such space shall be
increased to the then-prevailing rate for similar service in the
immediate area.
Owner shall maintain the right to pass on to Tenant all applicable
parking taxes.
k. Relocation of Premises:
Owner shall have the right to relocate the Premises in Building on the
following terms and conditions:
1) The floor area of the new location shall be approximately the
same as the floor area of the original location;
2) Tenant will be reimbursed for all reasonable expenses incurred in
connection with the relocation, including but not limited to the
net cost of putting the new Premises in the same condition as the
original location, moving, signage, telephone & computer
equipment relocation and reasonable quantities of new stationery;
3) Owner shall give Tenant at least Ninety (90) days written notice
of relocation.
l. Security Deposit:
Concurrently with the execution of this Lease, Tenant shall deliver to
Owner a sum equal to One Thousand Fifty Four Dollars ($1,554) this as
security for the performance by Tenant of every covenant and condition
of this Lease. Upon payment of deposit, Tenant shall request and Owner
shall deliver to Tenant a written receipt therefor. Deposit may be
commingled with other funds of Owner and shall bear no interest. If
Tenant shall default with respect to any covenant or condition of this
Lease, including but not limited to the payment of rent, Owner may
apply the whole or any part of deposit to the payment of any sum in
default or any other sum which Owner may be required to spend by
reason of Tenant's default. Should Tenant comply with all of the
covenants and conditions of this Lease, deposit shall be rammed to
Tenant (or, at the option of Owner, to the last assignee of Tenant's
interest in this Lease) at the expiration of the term hereof. Tenant
shall not move into Premises until said deposit has been paid to
Owner.
m. Signage:
Owner will provide signage, according to building standards, to Tenant
with Tenant's business name at Three (3) separate locations:
1) Main Lobby Directory - Sixth Avenue
2) Third Floor Lobby Directory- Skybridge entrance from Garage
3) Elevator Lobby Directory on Tenant's floor
n. Holding Over:
If Tenant shall continue its occupancy of the Premises after the
expiration of the Lease Term, the occupancy shall not be deemed to
extend or renew the term of this Lease, and such occupancy shall
constitute a tenancy from month to month, subject to all of the terms
of this Lease, except the term, and except that the Rent for each
month of continued occupancy shall be double the Rent for the last
full month of the Lease Term. Tenant shall also be liable for Owner's
incidental and consequential damages sustained by virtue of Tenant's
holding over.
o. Square Footage Adjustment:
Owner and Tenant agree that reasonable attempts have been made to
determine the correct square footage used in this Lease. Owner grants
Tenant the option to remeasure and challenge the new premises square
footage calculation at Tenant's expense, If Tenant's square footage
calculation differs from the number used in this Lease, Owner will
remeasure at Owner's expense to determine which calculation is
correct. Owner and Tenant agree that any challenge of the square
footage calculation must be carried out within one month of the
commencement date. After that time, Owner and Tenant agree to mutually
waive any and all rights, claims, or liabilities against each other as
it relates to the
p. Meat-Me Boom Access
Tenant shall have the right to share usage of the 19th floor Meet-Me
Room and associated wiring system. Owner shall supervise the
maintenance of the room by tenant-users and shall use all reasonable
means to ensure this facility is always available to Tenant. Tenant
agrees to abide by the regulations set jointly by Owners and tenant-
users or, should its practices conflict with those regulations, to
vacate immediately upon written request. As in Article 7, Owner shall
not be liable for damages nor shall the rental herein be abated for
failure to furnish or interruption in service in this facility.
For Meet-Me Room usage, Tenant shall pay a one-time usage fee of Five
Hundred Dollars ($500.00) no later than Thirty (30) days following
Commencement Date, For each DSX panel or DS3 module placed in the
room, Tenant shall pay a one-time fee of Three hundred sixty eight
dollars ($368.00) per DSX and/or one hundred eighty four dollars
($184.00) per DS3 module and a recurring monthly charge of $50.00 per
Panel installed within the room.
q. Cabling Right of Way
Owner gives to Tenant the right of way to install cable from the
Premises to the "Meet Me Room" on the 19th floor. Such installation is
at Tenant's expense and subject to limitations and exclusions
presented within Lease. Such installation must be coordinated with and
approved by The Westin Building Engineer. Cabling to areas of the
building other than the Meet-Me Room shall be governed by the same
terms and conditions set forth above but shall additionally be subject
to monthly recurring charges as established by Owner for all other
cable run by users throughout the building.
r. HVAC (Heating, Ventilating, and Air Conditioning)
Owner grants Tenant right to install at Tenant's sole cost, its own
HVAC equipment in Premises. This equipment shall be considered
Tenant's trade fixture. It shall be connected to the new building
cooling tower loop in a manner approved by the Building Engineer. As
in Article 7, Owner shall not be liable for damages nor shall the
rental herein be abated for failure to furnish or interruption in
service of this cooling tower and loop facility.
Tenant shall pay Owner within ten (10) days of completion of the
connection a one-time sum equal to Five hundred dollars ($500,00) per
ton of connected load. In addition, Tenant shall pay upon invoice a
quarterly fee which shall be its prorate, per too share of the costs
charged to all participants of the cooling tower. This quarterly
charge will include chemical treatment, electrical usage and water
consumption.
t. Class "A " Entry
Tenant acknowledges Owners requirement for the premises to have an
entry that is compatible with the Class "A" image of the building.
Tenant shall cooperate with Owner in developing an entry plan that
meets Owner's need for appearance and Tenant's need for privacy and
control.
2 EXHIBITS
The following Drawings and Special Provisions are attached hereto as
exhibits and made a part of this Lease:
Exhibit A - Floor plan of the Westin Building, herein called
"Building."
Exhibit B - Site plan showing relation and location of Building and
Westin Building Garage.
Exhibit C - Details of Premises Approved by Owner and Tenant.
3 PREMISES
Owner hereby leases to Tenant, and Tenant hereby leases of Owner, upon the
terms and conditions herein set forth, those certain Premises, described in
Article 1(a) and (b) and shown outlined in red on the standard floor plan
attached hereto marked "Exhibit A" and made a part hereof in that certain
Building, known as the Westin Building situated in the City of Seattle,
County of King, State of Washington, at Sixth Avenue and Virginia Street,
and located on the following real property:
Lots 11 and 12 (less portion for street), Block 15 of Addition to town
of Seattle, as laid off by Heirs of Xxxxx X. Xxxx, deceased (commonly
known as Heirs of Xxxxx X. Xxxx'x Addition to the City of Seattle), as
per plat recorded in Volume I of plats, page 103, records of King
County, Washington.
The areas so leased are hereinafter called "Premises."
4 RENT
Tenant covenants and agrees to pay Owner the monthly rent which is set
forth in Article 1(d) to be adjusted as provided elsewhere in this Lease,
in United States currency in advance on or before the first day of each
calendar month during said term, at the office of Owner in Building or at
such other place as Owner may from time to time designate in writing. It is
agreed that since collection of any amount past due imposes an
administrative cost on Owner, in addition to all other sums that may be
charged by Owner hereunder, Tenant shall pay to Owner a sum equal to Five
Cents ($0.05) for every Dollar not paid when due.
5 USE
Premises may be used only for the purpose set forth in Article 1(g) and for
no other purpose or purposes without the written consent of Owner. No use
shall be made of Premises, nor act done in or about Premises, which is
unlawful, or which may increase the existing ram of insurance upon
Building. Tenant shall not commit or allow to be committed any waste upon
Premises, or any public or private nuisance or other act or thing which
disturbs the quiet enjoyment of any other tenant in Building, nor shall
Tenant, without the written consent of Owner, use any apparatus, machinery
or device in or about Premises that shall cause any substantial noise or
vibration. If any of Tenant's office machines and equipment should disturb
the quiet enjoyment of any other tenant in Building, then Tenant shall
provide adequate insulation or take such other action as may be necessary
to eliminate the disturbance. Tenant shall observe such reasonable rules
and regulations as may be adopted by Owner for the safety, care and
cleanliness of Premises or Building and the preservation of good order
therein.
6 POSSESSION
In the event of Owner's inability to deliver possession of Premises ready
for occupancy at the commencement of the Lease Term, Owner shall not be
liable for any damage caused thereby, except as otherwise expressly stated
herein, nor shall this Lease become void or voidable, nor shall the Lease
Term be extended, but in such event, no rental shall be payable by Tenant
to Owner for any portion of the Lease Term prior to actual delivery to
Tenant of possession of Premises ready for occupancy by Tenant unless
Tenant shall have failed to meat its obligations under Article 23 or unless
the term of this Lease does not commence on or before March 15, 1998,
without fault on the part of Tenant in which event Tenant's sole remedy
shall be to cancel the Lease by giving thirty (30) days written notice of
its said election to Owner. If Tenant, with Owner's permission enters into
possession of Premises prior to commencement of the Lease Term, all of the
terms and conditions of this Lease shall apply during such prior period,
except that rental shall be the amount set forth in article 1(e) for each
calendar day during such prior period.
7 SERVICES PROVIDED BY OWNER
Owner shall, at its sole cost and expense, maintain Premises end the public
and common areas of Building, such as lobbies, stairs, landscaping,
corridors and restrooms, together with the Westin Building Garage, in
reasonably good order and condition except for damage occasioned by the act
of Tenant.
Owner, at Tenant's sole cost, shall furnish Premises from 7:00 a.m. to 6:00
p.m. Monday through Friday (exclusive of holidays), hereinafter called
"Standard Work Weak," with electricity for lighting and the operating of
office machines, heat and air conditioning as may be reasonably required
for the occupation of Premises.
Owner, at its sole cost shall provide elevator service, lighting
replacement, toilet room supplies, window washing with reasonable
frequency, and daily janitorial service on the basis of a Standard Work
Week during the times and in the manner that such janitorial services are
customarily furnished
reserved be abated, for failure to furnish or delay in furnishing any of
the foregoing services, when such failure or delay is caused by accident or
conditions beyond the control of Owner, or by labor disturbances or labor
disputes of any character, or by inability to secure fuel, supplies,
machinery, equipment or labor after reasonable efforts to do so, or by the
making of improvements or necessary repairs to Premises or Building, nor
shall the temporary failure to furnish any of such services be construed as
an eviction of Tenant or relieve Tenant from the duty of observing and
performing any of the provisions of this Lease.
Tenant acknowledges that the 24-hour nature of its business exceeds the
Standard Work Week described above. Owner may at its option and at Tenant's
cost install a meter in the electrical system supplying Tenant, measure
usage and xxxx Tenant monthly at the same rate, including demand charges,
billed by Seattle City Light plus a monthly billing fee of $10.00.
Additionally, Tenant shall pay for all other expanses incurred by Owner as
a result of Tenant using Premises in excess of Standard Work Week.
8 REPAIRS AND ALTERATIONS
Tenant agrees by taking possession of the Premises that Premises are then
in a tenantable and good condition, that Tenant will take good care of
Premises, and the same will not be altered or in any way changed without
the written consent of Owner. Tenant hereby waives any right to make
repairs at Owner's expense. Tenant shall not make changes to locks on doors
or add, disturb, or in any way change any plumbing or wiring without first
obtaining written consent of Owner. All damages or injury done to Premises
by Tenant, or by any persons who may be in or upon Premises with the
consent of Tenant, shall be paid for by Tenant and Tenant shall pay for all
damages to Building caused by Tenant's misuse of Premises or the
appurtenances thereto. All other repairs to Premises necessary to maintain
Premises in a tenantable and good condition shall be done by or under the
direction of Owner and at Owner's expense except as otherwise specifically
provided herein. Tenant shall pay for the replacement of Special
Improvements as provided in Article 23 and the replacement of doors or
windows of Premises which are cracked or broken by Tenant, its employees,
agents, or invitees, and Tenant shall not put any curtains, draperies or
other hangings on or beside the windows in Premises without first obtaining
Owner's consent Owner agrees that it will repaint the interior of Premises
at least once every five years with a color mutually agreed upon between
Tenant and Owner. Owner may make any alterations or improvements which
Owner may deem necessary for the preservation, safety or improvement of
Premises or Building. All alterations, additions and improvements, except
trade fixtures installed by Tenant and which are removable without damage
to Building, shall become the property of Owner. Tenant shall, at the
termination of this Lease by the expiration of time or otherwise, surrender
and deliver up Premises to Owner in as good condition as when received by
Tenant from Owner, reasonable use and wear and damage by fire or other
casualty excepted.
Should Owner be required to make changes or additions to Building or Westin
Building Garage at any time during the term of this Lease as a result of
any law, rule, code or regulation which becomes effective after the
Commencement Date, then Tenant shall pay on demand by Owner, as additional
rent, a monthly charge equal to the area of Premises as stated in Article
1(b) divided by 350,000 times 1 and 1/3 percent of the cost of the change
or addition. Such additional rent shall commence upon substantial
completion of each such change or addition and shall continue to the end of
the term of this Lease.
9 ENTRY AND INSPECTION
Tenant will permit Owner and its agents to enter into and upon Premises at
all reasonable times for the purpose of inspecting the same or for the
purpose of cleaning, repairing, altering or improving Premises or Building
and when reasonably necessary may close entrances, doors, corridors,
elevators or other facilities without liability to Tenant by reason of such
closure and without such action by Owner being construed as an eviction of
Tenant or relieving the Tenant from the duty of observing and performing
any of the provisions of this Lease., Owner shall have the right to enter
Premises for the purpose of showing Premises to prospective tenants for a
period of 180 days prior to the expiration of the Lease Term.
10 DAMAGE OR DESTRUCTION
If Premises or Building are damaged by fire, wind, or other such casualty,
the damage shall be repaired by and at the expense of Owner, provided such
repairs (to restore Premises to usable condition) can be made within sixty
(60) days after the occurrence of such damage without the payment of
overtime or other premiums, and until such repairs are completed, the rent
shall be abated in proportion to the part
of Premises which is unusable by Tenant in the conduct of its business (but
there shall be no abatement of rent by reason of any portion of Premises
being unusable for a period equal to one day or less).
If such repairs cannot be made within sixty (60) days, Owner may, at its
option, make them within a reasonable time, and in such event this Lease
shall continue in effect and the rent shall be abated in the manner
provided above. Owner's election to make repairs must be evidenced by
written notice to Tenant within thirty (30) days after the occurrence of
the damage.
If Owner does not elect to make such repairs that cannot be made within
sixty (60) days, then either party may, by written notice to the other,
terminate this Lease. A total destruction of Building shall automatically
terminate this Lease.
11 ADVERTISING
Tenant shall not inscribe any inscription, post, place, or in any manner
display any sign, notice, picture, placard or poster, or any advertising
matter whatsoever, anywhere in or about Premises or Building at places
visible (either directly or indirectly as an outline or shadow on a glass
pane) from any where outside Premises without first obtaining Owner's
written consent thereto.
12 INDEMNITY, LOSS AND WAIVER OF SUBROGATION
Tenant shall defend and indemnify Owner and save it harmless from and
against any and all liability, damages, costs, or expenses, including
attorneys' fees, arising from any ant, omission or negligence of Tenant or
the officers, contractors, licensees, agents, servants, employees, guests,
invitees, or visitors of Tenant in or about Building, or arising from any
accident, injury, or damage, howsoever and by whomsoever caused, to any
person or property, occurring in or about Premises, provided that the
foregoing provision shall not be construed to make Tenant responsible for
loss, damage, liability, or expense resulting from injuries to third
parties caused by the negligence of Owner or of any officer, contractor,
licensee, agent, servant, or employee of Owner. Owner shall not be
responsible for providing security and Tenant hereby releases Owner from
any claim for damage or loss of property that may arise as a result of
vandalism or theft in Building or Westin Building Garage. Owner and Tenant
each release the other from responsibility for, and waive their entire
claim of recovery for (i) any loss or damage to the real or personal
property of either located anywhere in Building and Westin Building Garage,
arising out of or incident to the occurrence of any of the perils which may
be covered by a fire and lightning insurance policy, with extended coverage
endorsement in common use in the Seattle locality or (ii) loss resulting
from business interruption at Premises or loss of rental income from
Building,, arising out of or incident to the occurrence of any of the
perils that may be covered by a business interruption insurance policy and
by the loss of rental income insurance policy in common use in the Seattle
locality. To the extent that such risks under (i) and (ii) are in fact
coveted by insurance, each party shall cause its insurance carriers to
consent to such waiver and to waive all rights of subrogation against the
other party.
13 LIENS AND INSOLVENCY
Tenant shall keep Premises and Building free from any liens or encumbrances
arising out of any work performed by Tenant, materials furnished by Tenant,
or obligations incurred by Tenant. Owner may terminate this Lease by giving
Tenant notice of its election to do so, if: (i) Tenant files a voluntary
petition in bankruptcy, or for reorganization under the bankruptcy laws, or
is adjudged a bankrupt by a court of competent jurisdiction, (ii) if Tenant
makes an assignment for the benefit of creditors, or if a receiver is
appointed for Tenant's business, or (iii) any other action is taken by or
against Tenant under any State or Federal insolvency or bankruptcy act. No
interest in this Lease or estate hereby created in favor of Tenant shall
pass by operation of law under any such bankruptcy or insolvency act to any
person whomsoever without the prior express written consent of Owner. Any
purported transfer in violation of this Article shall constitute a default
by Tenant.
14 DEFAULT AND RE-ENTRY
Except for a default under the preceding paragraph for which immediate
right of termination is given to Owner, if Tenant falls to pay any
installment of rent when due (plus interest on past due amounts at the
maximum legal rate from the date due) after 3 days written notice, or to
perform any other covenant under this Lease within thirty (30) days after
written notice from Owner stating the nature of the default, Owner may re-
enter and take possession of Premises using all reasonable force to do so;
provided, however, 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, Tenant shall not be deemed to be in default if
Tenant shall within such period commence such cure and thereafter
diligently prosecute the
same to completion. Notwithstanding such retaking of possession by Owner,
Tenant's liability for the rent provided herein shall not be extinguished
for the balance of the term of this Lease. Upon such re-entry, Owner may
elect either (i) to terminate this Lease, in which event Tenant shall
immediately pay to Owner a sum equal to that by which the then cash value
of the total rent reserved under this Lease for the balance of the Lease
Term exceeds the reasonable rental value of the Premises for the balance of
the Lease Term plus costs incident to releasing the Premises including, but
not limited to remodeling expenses, attorney's fees and real estate
commissions; or (ii) without terminating this Lease, to relet all or any
part of the Premises as the agent of and for the account of Tenant upon
such terms and conditions as Owner may deem advisable, in which event the
rents received on such reletting shall be applied first to the expenses of
reletting and collection, including necessary renovation and alteration of
Premises, reasonable attorney's fees and real estate commissions paid, and
thereafter to payment of all sums due to or to become due Owner hereunder,
and if a sufficient sum shall not be thus realized to pay such sums and
other charges, Tenant shall pay Owner any deficiency monthly, and Owner may
bring an action therefor as such monthly deficiency shall arise.
In the event of any such retaking of possession of Premises by Owner as
herein provided, Tenant shall remove all personal property located thereon
and, upon failure to do so upon demand of Owner, Owner may, in addition to
any other remedies allowed by law, remove and store the same in any such
place selected by Owner, including but not limited to a public warehouse,
at the expense and risk of Tenant. If Tenant shall fail to pay any sums due
hereunder or the cost of storing any such property after it has been stored
for a period of thirty (30) days or more, Owner may sell any or all of such
property at public or private sale and shall apply the proceeds of such
sale first, to the cost of such sale; second, to the payment of the charges
for storage, if any; and third, to the payment of any other sums of money
which may be due from Tenant to Owner under the terms of this Lease, and
the balance, if any, to Tenant.
Tenant hereby waives all claims for damages that may be caused by Owner's
lawfully re-entering and taking possession of Premises or lawfully removing
and storing or selling the property of Tenant as herein provided, and will
save Owner harmless from loss, costs, or damages occasioned thereby, and
such lawful re-entry shall not be considered or construed to be a forcible
entry.
15 SURRENDER OF POSSESSION
Upon expiration of the term of this Lease, whether by lapse of time or
otherwise, Tenant shall promptly and peacefully surrender Premises to
Owner.
16 COSTS AND ATTORNEYS' FEES
If Tenant or Owner shall bring any action for any relief against the other,
declaratory or otherwise, arising out of this Lease, including any suit by
Owner for the recovery of rent or possession of Premises, the losing party
shall pay the successful party a reasonable sum for attorneys' fees in such
suit, and such attorneys' fees shall be deemed to have accrued on the
commencement of such action.
17 NON-WAIVER
Waiver by Owner of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant, or
condition, or of any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Owner shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant, or condition of this Lease, other
than the failure of Tenant to pay the particular rental so accepted
regardless of Owner's knowledge of such preceding breach at the time of
acceptance of such rent.
18 ASSIGNMENT AND SUBLETTING
Tenant shall not assign this Lease or sublet Premises or any part thereof
without first obtaining Owner's written consent, which shall not be
unreasonably withheld. No such assignment or subletting shall relieve
Tenant of Tenant's liability under the Lease, except, if at the time of
such assignment or subletting, Tenant establishes to the reasonable
satisfaction of Owner that such assignee or sublessee is of satisfactory
financial responsibility at least equal to that of Tenant at the time
Tenant executed the Lease. Consent to any such assignment or subletting
shall not operate as a waiver of the necessity for a consent to any
subsequent assignment, and the terms of such consent shall be binding upon
any person holding by, under or through Tenant. In no event shall a
sublessee of Tenant sublet or assign any interest in this Lease.
In the event or an assignment or subletting that requires Owner's time
and/or expense, Tenant shall reasonably compensate Owner for such expenses.
If Tenant is a corporation, then any transfer of this Lease by merger,
consolidation or liquidation or any change in the ownership of, or power to
vote, the majority of its outstanding voting stock shall constitute an
assignment for the purposes of this article.
19 SUCCESSORS
All of the covenants, agreements, terms and conditions contained in this
Lease shall apply to and be binding upon Owner and Tenant and their
respective heirs, executors, administrators, successors and assigns.
20 TAX ON RENTAL
If any governmental authority or unit under any present or future law
effective at any time during the term of this Lease shall in any manner
levy a tax on rentals payable under this Lease or on rentals accruing from
use of Premises under this Lease, or a tax in any form against Owner
because of or measured by income derived from the leasing or rental of
Premises, the amount of the next succeeding month's rent following payment
of such tax by Owner shall be increased by an amount equal to such tax paid
by Owner, and for Tenant's default in paying the rent thus revised, Owner
shall have the same remedies as upon failure to pay rent. Tenant shall not
be liable to pay any amount because of income tax of a general nature
applicable to Owner's various interests or sources of income. In the event
that it shall not be lawful for Tenant to pay such tax, the rental payable
to Owner under this Lease shall be revised to net Owner the same net rental
after imposition of any such tax as would have been payable to Owner prior
to the imposition of any such tax.
21 PRIORITY
This Lease shall automatically be subordinate to any mortgage or deed of
trust heretofore or hereafter placed upon Building, to any and all advances
made or to be made thereunder, to the interest on the obligations secured
thereby, and to all renewals, replacements and extensions thereof;
provided, however, that in the event of foreclosure of any such mortgage or
deed of trust or exercise of the power of sale thereunder, Tenant shall
attorn to the purchaser of Building at such foreclosure or sale and
recognize such purchaser as Owner under this Lease if so requested by such
purchaser. If any mortgagee or beneficiary elects to have this Lease
superior to its mortgage or deed of trust and gives notice of its election
to Tenant, then this Lease shall thereupon become superior to the lien of
such mortgage or deed of trust, whether this Lease is dated or recorded
before or after the mortgage or deed of trust. Within fifteen days of
presentation, Tenant shall execute, acknowledge, and deliver to Owner (i)
any subordination or nondisturbance agreement or other instrument that
Owner may require to carry out the provisions of this article, and (ii) any
estoppel certificate requested by Owner from time to time in the standard
form of any such mortgagee or beneficiary certifying in writing, if such be
true, that Tenant shall be in occupancy, that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the modifications)
and the dates to which the rent and other charges shall have been paid, and
that there shall be no rental offsets or claims.
22 CONDEMNATION
If the whole of Premises, or if such portion of either Premises or the
facilities in Building as may be required for the reasonable use of
Premises, shall be taken by virtue of any condemnation or notice of
condemnation or eminent domain proceeding, or by purchase in lieu thereof,
or for public or quasipublic use, directly or indirectly, this Lease shall
automatically terminate as of the date of such condemnation, or purchase in
lieu of condemnation, or as of the date possession is taken by the
condemning authority, whichever is earlier. Current rent shall be
apportioned as of the date of such termination. In case of a taking of a
part of Premises or a portion of the facilities in Building not required
for the reasonable use of Premises, then this Lease shall continue in full
force and effect and the rental shall be equitably reduced based on the
proportion by which the rentable area of Premises is reduced, such rent
reduction to be effective on the date of such partial taking. No award of
any partial or entire taking shall be apportioned, and Tenant hereby
assigns to Owner any award which may be made in such taking or condemnation
together with any and all rights of Tenant now or hereafter arising in or
to the same or any part thereof, provided, however, that nothing herein
shall be deemed to give Owner any interest in, or to require Tenant to
assign to Owner, any award made to Tenant for the taking of personal
property or fixtures belonging to Tenant, for the interruption of or
damages to
23 SPECIAL IMPROVEMENTS
The term "Special Improvements" as used in this Lease refers to all
improvements to Premises, whether provided at the expense of Owner or
Tenant, other than acoustical ceilings, lighting fixtures, air conditioning
grilles, air ducts and temperature controls, draperies, corridor and
demising partitions, and concrete floor ready for pad and carpet. Tenant
shall reimburse Owner for Owner's necessary expense of repairing or
replacing all Special Improvements to maintain Special Improvements in
first-class condition. Before occupancy of Premises, Tenant shall pay Owner
that certain sum set forth in Article 1(f) as payment for certain of
Special Improvements made to Premises. In addition, Tenant shall pay Owner
for installation of all Special improvements if they have been installed by
Owner pursuant to Tenant's request. Where Special Improvements are to be
installed by Owner, Tenant shall give Owner written notice of its final
color selections and all other details of its office layout in sufficient
time to permit Owner's completion of all work by the commencement date
hereunder using its normal crews on a regular time basis, and such notice
shall in any event be given not later than fifteen working days before such
commencement date.
24 REAL PROPERTY TAXES
Owner shall pay all real property taxes and assessments that may be levied
against Building and the underlying land. If the amount of such real
property taxes and assessments shall, in any calendar year during the Lease
Term, exceed the amount of real property taxes and assessments payable for
the calendar year 1997, then on the tax payment dates in 1998 and on these
dates of each succeeding year, Tenant shall reimburse Owner for Tenant's
proportionate share of such increase based upon the ratio which area of
Premises, as set forth in Article 1(b), bears to 350,000 square feet. Owner
shell submit to Tenant. if so requested by Tenant, a copy of the real
property tax statement for the year in which payment is requested.
The foregoing charges constitute additional rent that shall be deemed to
have accrued uniformly during the calendar year in which payment is due.
The final payment under the provision of this Article shall be prorated
based on reasonable projections of the increase through the termination of
this Lease and shall be due thirty days before such termination.
25 ANNUAL RENT ADJUSTMENT
To partially compensate for the effect of inflation, a portion of the
rental rate (viz. $ 7.50 per square foot per year) shall be adjusted
annually to reflect reductions, if any, in the purchasing power of the
dollar. Three separate generic elements of cost (namely: labor, materials
and energy) shall be deemed to be representative of all operational costs.
Indices for measuring changes in the dollar value for each of these cost
elements shall be: janitorial hourly labor rate, Consumer Price Index, and
the average cost per kilowatt-hour of electricity (including without
limitation all demand charges), respectively. Changes in each of these
shall adjust rent as provided below:
Generic Element's Cost
Element of Cost Index Share
--------------- ----- -----
1. Labor Janitorial rate $3.00
2. Material C.P.I. $3.00
3. Energy Average k Wh cost $1.50
The base index for each of these indices shall be established from data for
the month of September of the year preceding the year in which this Lease
commences. Indices for each succeeding year shall be calculated annually
using September experience data, and the ratio that these annual indices
bear to their respective base index shall be reduced by 1.00 then
multiplied by the individual element's cost share as specified in Items 1,
2 and 3 above, and by the area of Premises as set forth in Article l(b).
Each January 1, following the calendar year in which the Lease becomes
effective, the Monthly Rent in Article 1(d) shall be increased by one-
twelfth (1/12) of the sum of the amounts so determined. No changes in the
rent as specified above shall take place during the calendar year in which
the Lease Term commences.
The janitorial hourly labor rate shall be that as established by the
Building Services Employees International Union Local No. 6 for journeymen
including all applicable taxes and fringe benefits payable by employers.
The labor rate to be used as a base index for this Lease shall be $12.81.
The Consumer Price Index to be used shall be the Revised Consumer Price
Index for Urban Wage Earners and Clerical Workers, U.S. City Average,
All-Items Series (1982-1984 = 100), as published by
the U.S. Department of Labor, Bureau of Statistics. If this index is
revised or changed (as, for example, by taking the average index for
different years as the base figure of 100), the base index shall be
adjusted accordingly. In the event such index is discontinued, the index
promulgated by the Department of Labor most closely approximating the above
referenced index shall be used as the base index. The Consumer Price Index
to be used as the base index for this Lease shall be 158.3.
The cost per kilowatt-hour of electricity consumed in the Westin Building
(including seasonal factors and any tax or surcharge that may be imposed),
shall be determined by dividing the total amount billed to Account No.
171001453015 for the supply of electricity consumed primarily during the
month of September by the consumption shown in the billing column entitled
"Consumption kwh/kvarh." The cost to be used as a base index for this Lease
shall be $.0401 per kilowatt-hour.
26 NOTICES
All notices under this Lease shall be in writing and delivered in person or
sent by registered or certified mail to Owner at its offices in Building
and to Tenant at Premises, or to such other place as may be set forth in
Article 1(h) or hereafter designated by either party in writing.
27 NAME OF BUILDING
Owner reserves the right in its sole discretion to change the name of
Building from that specified in Article 3.
28 CONSTRUCTION
The titles to articles of this Lease are not a part of this Lease and shall
have no effect upon the construction or interpretation of any part thereof.
This Lease shall be construed and governed by the law of the State of
Washington.
29 TIME OF ESSENCE
Time is of the essence of this Lease.
30 FORCE MAJEUR
In the event either Owner or Tenant shall be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, inability to procure materials, failure
of power, restrictive governmental laws or regulations, riots,
insurrection, war or any reason era like nature, not the fault of the party
delayed in performing work or doing acts required under the terms of this
Lease, then performance of' such act shall be excused for the period of
such delay, provided that the provisions hereof shall not operate to excuse
Tenant from prompt payment of' rent or any other payments required by
Tenant hereunder.
IN WITNESS WHEREOF, Owner and Tenant have signed this Lease on the dates noted
below.
OWNER: TENANT:
----- ------
SIXTH & VIRGINIA PROPERTIES, MEDLYNX, LLC
A Washington General Partnership A Washington Corporation
By Xxxxx properties Inc., a Partner
By /s/ By /s/ Xxxxx Xxxxxxxxx
---------------------------- -------------------------------
Its President Its President
--------------------------- ------------------------------
Date 2-26-98 Date 2/10/98
-------------------------- -----------------------------
XXXXX COMPANY, a Partner
By Retail Realty, Inc.,
By /s/
----------------------------
Its President
---------------------------
Date 2-26-98
--------------------------
GUARANTEE
For and in consideration of execution of this Lease, Xxxxx Xxxxxxxxx guarantees
the performance of all obligations of Medlynx, LLC, as said obligations exist
under all terms and conditions of this Lease and any modifications thereto.
/s/ Xxxxx Xxxxxxxxx
--------------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that A.M. Xxxxx 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 President of XXXXX PROPERTIES, INC., a partner of SIXTH &
VIRGINIA PROPERTIES, a Washington general partnership, to be the free and
voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: 2/26/98
---------------
[SEAL] /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------
Print Name: Xxxxxxxx X. Xxxxxxxx
-----------------------------
NOTARY PUBLIC in and for the State of
Washington, residing at Issaquah
----------------
My commission expires: 2/7/99
------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that A.M. Xxxxx 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 President of RETAIL REALTY, INC., a partner of XXXXX
COMPANY, a partnership, for and on behalf of XXXXX COMPANY, which in turn is a
partner of SIXTH & VIRGINIA PROPERTIES, a Washington general partnership, to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated: 2/26/98
---------------
[SEAL] /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------
Print Name: Xxxxxxxx X. Xxxxxxxx
-----------------------------
NOTARY PUBLIC in and for the State of
Washington, residing at Issaquah
----------------
My commission expires: 2/7/99
------------------
