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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended SEPTEMBER 30, 1997 Commission File No. 000-22513
AMAZON.COM, INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1646860
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1516 Second Avenue, Seattle, Washington, 98101
(address of principal executive offices, Zip Code)
Registrant's telephone number, including area code (206) 622-2335
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
23,858,702 shares of $0.01 par value common stock outstanding
as of October 31, 1997
Page 1 of 16
Exhibit Index on Page 16
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AMAZON.COM, INC.
FORM 10-Q
FOR THE QUARTER ENDED SEPTEMBER 30, 1997
INDEX
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION PAGE
----
<S> <C>
Item 1. Financial Statements 3
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 7
Item 3. Quantitative and Qualitative Disclosures about Market Risk 13
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 2. Changes in Securities and Use of Proceeds 14
Item 3. Defaults Upon Senior Securities 14
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 14
Signatures 15
Exhibit Index 16
</TABLE>
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AMAZON.COM, INC.
BALANCE SHEETS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
September 30, December 31,
1997 1996
- -------------------------------------------------------------------------------------------------------
(in thousands, except share data) (unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 44,687 $ 6,248
Short-term investments 3,494 -
Inventories 2,732 571
Prepaid expenses and other 1,784 321
-------- -------
TOTAL CURRENT ASSETS 52,697 7,140
Equipment, net 4,403 985
Deposits 347 146
======== =======
TOTAL ASSETS $ 57,447 $ 8,271
======== =======
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 15,386 $ 2,852
Accrued advertising - 598
Accrued product development - 500
Other liabilities and accrued expenses 4,462 920
-------- -------
TOTAL CURRENT LIABILITIES 19,848 4,870
LONG-TERM LEASE OBLIGATIONS 181 -
STOCKHOLDERS' EQUITY:
Preferred stock, $0.01 par value -
Authorized, 10,000,000 shares
Issued and outstanding, none
and 569,396 shares, respectively - 6
Common stock, $0.01 par value -
Authorized, 100,000,000 shares
Issued and outstanding, 23,858,702
and 15,900,229 shares, respectively 238 159
Additional paid-in capital 63,749 9,873
Deferred compensation (2,291) (612)
Accumulated deficit (24,278) (6,025)
-------- -------
TOTAL STOCKHOLDERS' EQUITY 37,418 3,401
-------- -------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 57,447 $ 8,271
======== =======
</TABLE>
SEE NOTES TO FINANCIAL STATEMENTS
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AMAZON.COM, INC.
STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Quarter Ended Nine Months Ended
---------------------------- ----------------------------
September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- ---------------------------------------------------------------------------------------------------------
(in thousands, except per share data)
<S> <C> <C> <C> <C>
Net sales $37,887 $ 4,173 $ 81,747 $ 7,278
Cost of sales 30,709 3,262 65,826 5,710
---------------------- ----------------------
Gross profit 7,178 911 15,921 1,568
Operating expenses:
Marketing and sales 10,979 2,251 22,658 3,152
Product development 3,582 755 7,965 1,412
General and administrative 1,803 377 4,653 588
---------------------- ----------------------
16,364 3,383 35,276 5,152
Loss from operations (9,186) (2,472) (19,355) (3,584)
Interest income 676 92 1,102 106
---------------------- ----------------------
$ (8,510) $(2,380) $(18,253) $(3,478)
====================== ======================
Net loss per share $ (0.36) $ (0.10) $ (0.78) $ (0.15)
====================== ======================
Shares used in computation of net loss
per share 23,859 22,967 23,508 22,550
====================== ======================
</TABLE>
SEE NOTES TO FINANCIAL STATEMENTS
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AMAZON.COM, INC.
STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
September 30, September 30,
FOR THE NINE MONTHS ENDED 1997 1996
- ------------------------------------------------------------------------------------------------------
(in thousands)
<S> <C> <C>
OPERATING ACTIVITIES
Net loss $(18,253) $(3,478)
Adjustments to reconcile net loss
to net cash used in operating activities:
Depreciation and amortization 1,997 135
Amortization of unearned compensation - stock options 993 -
Changes in operating assets and liabilities:
Inventories (2,161) (157)
Prepaid expenses and other assets (1,463) (226)
Deposits (201) (94)
Accounts payable 12,534 1,597
Accrued advertising (598) 564
Other accrued expenses 3,361 937
-------- -------
Net cash used in operating activities (3,791) (722)
INVESTING ACTIVITIES:
Maturities of short-term investments 5,198 -
Purchases of short-term investments (8,692) -
Additions to equipment (4,053) (675)
-------- -------
Net cash used for investing activities (7,547) (675)
FINANCING ACTIVITIES:
Proceeds from initial public offering 49,103 -
Proceeds from exercise of stock options and sale of stock 474 60
Proceeds from sale of preferred stock 200 7,970
-------- -------
Net cash provided by financing activities 49,777 8,030
-------- -------
Net increase in cash and cash equivalents 38,439 6,633
Cash and cash equivalents at beginning of period 6,248 996
======== =======
Cash and cash equivalents at end of period $ 44,687 $ 7,629
======== =======
SUPPLEMENTAL CASH FLOW INFORMATION
Common stock issued for software and
accrued product development $ 1,500 $ -
Equipment acquired under capital lease 362 -
</TABLE>
SEE NOTES TO FINANCIAL STATEMENTS
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AMAZON.COM, INC.
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - ACCOUNTING POLICIES
Description of Business
Amazon.com, Inc. (the Company) was incorporated on July 5, 1994. The Company is
an online retailer of books and other information-based products on the
Company's Internet site, and offers more than 2.5 million titles.
Unaudited Interim Financial Information
The financial statements as of September 30, 1997 and 1996 have been prepared by
the Company pursuant to the rules and regulations of the Securities and Exchange
Commission (SEC). These statements are unaudited and, in the opinion of
management, include all adjustments (consisting of normal recurring adjustments
and accruals) necessary to present fairly the results for the periods presented.
The balance sheet at December 31, 1996 has been derived from the audited
financial statements at that date. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to such
SEC rules and regulations. Operating results for the quarter ended September 30,
1997 are not necessarily indicative of the results that may be expected for the
year ending December 31, 1997. These financial statements should be read in
conjunction with the financial statements and the accompanying notes included in
the Company's Registration Statement on Form S-1 (No. 333-23795), including the
related Prospectus dated May 15, 1997 as filed with the SEC (the "Registration
Statement"). Certain prior period balances have been reclassified to conform to
current period presentation.
Net Loss per Share
Net loss per share is computed using the weighted average number of common and
common equivalent shares outstanding during the period. Common equivalent shares
consist of the incremental common shares issuable upon conversion of the
convertible preferred stock and shares issuable upon the exercise of stock
options using the treasury stock method. Common equivalent shares are excluded
from the computation if their effect is antidilutive, except that, pursuant to
the SEC Staff Accounting Bulletins, the convertible preferred stock and common
equivalent shares (using the treasury stock method and the public offering
price) issued during the 12 months previous to the initial public offering have
been included in the computation through May 15, 1997, regardless of
antidilutive effect, as if they were outstanding for all periods presented.
The Financial Accounting Standards Board recently issued Statement No. 128,
Earnings per Share, which requires the presentation of basic earnings per share
(EPS) and, for companies with complex capital structures, diluted EPS. Statement
No. 128 is effective for annual and interim periods ending after December 15,
1997. The Company expects that for profitable periods, basic EPS will be higher
than primary earnings per share as presented in the accompanying financial
statements and diluted EPS will not differ materially from earnings per share as
presented in the accompanying financial statements. Computations for loss
periods should not change significantly.
NOTE 2 - INVESTMENTS
The Company invests certain of its excess cash in debt instruments of the U.S.
government and its agencies, foreign governments and of high quality corporate
issuers. All highly liquid instruments with an original maturity of three months
or less are considered cash equivalents; those with original maturities greater
than three months are considered short-term investments and those with
maturities greater than twelve months from the balance sheet date are considered
long-term investments. The Company classifies investment securities in
accordance with Statement of Financial Accounting Standards No. 115, "Accounting
for Certain Investments in Debt and Equity Securities."
At September 30, 1997, short-term investments consist primarily of government
securities and were classified as held-to-maturity. At December 31, 1996, the
Company did not hold any short-term investments. Unrealized holding gains and
losses at September 30, 1997 were not significant.
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NOTE 3 - EQUIPMENT
Equipment, at cost, consisted of the following components (in thousands):
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
<S> <C> <C>
Computers and equipment $4,337 $1,031
Purchased software 1,394 134
Leasehold improvements 617 130
Leased equipment 362 -
------ ------
6,710 1,295
Less accumulated depreciation
and amortization 2,307 310
====== ======
$4,403 $ 985
====== ======
</TABLE>
NOTE 4 - STOCKHOLDERS' EQUITY
On May 15, 1997, the Company completed its initial public offering of 3,000,000
shares of its common stock. Net proceeds to the Company aggregated $49,103,000.
As of the closing date of the offering, all of the convertible preferred stock
outstanding was converted into an aggregate of 3,446,376 shares of common stock.
NOTE 5 - CONTINGENCY
On May 12, 1997, Barnes & Noble, Inc. ("B&N") filed suit against the Company in
the United States District Court for the Southern District of New York. The suit
alleged one count of false and misleading advertising in violation of the Lanham
Act. In October 1997, B&N and the Company agreed to a settlement of the lawsuit
with no admission of liability of any type and no payment of damages.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following Management's Discussion and Analysis of Financial Condition and
Results of Operations contains forward-looking statements based on management's
current expectations, estimates and projections about the Company's industry,
management's beliefs and certain assumptions made by management. All statements,
trends, analyses and other information contained in this report relative to
trends in net sales, gross margin, anticipated expense levels and liquidity and
capital resources, as well as other statements, including words such as
"anticipate," "believe," "plan," "estimate," "expect" and "intend" and other
similar expressions, constitute forward-looking statements. These
forward-looking statements involve risks and uncertainties, and actual results
may differ materially from those anticipated or expressed in such statements.
Potential risks and uncertainties include, among others, those set forth under
"Overview," "Liquidity and Capital Resources" and "Additional Factors That May
Affect Future Results" included in this Management's Discussion and Analysis of
Financial Condition and Results of Operations and in the "Risk Factors" section
of the Company's final prospectus dated May 15, 1997, as filed with the SEC.
Particular attention should be paid to the cautionary statements involving the
Company's limited operating history, the unpredictability of its future
revenues, the unpredictable and evolving nature of its business model, the
intensely competitive online commerce environment and the risks associated with
capacity constraints, systems development and management of growth. Except as
required by law, the Company undertakes no obligation to update any
forward-looking statement, whether as a result of new information, future events
or otherwise. Readers, however, should carefully review the factors set forth in
other reports or documents that the Company files from time to time with the
SEC.
OVERVIEW
Amazon.com is the leading online retailer of books. The Company also sells a
smaller number of CDs, videotapes and audiotapes. All of these products are sold
through the Company's Web site. The Company was incorporated in July 1994 and
commenced offering products for sale on its Web site in July 1995. Accordingly,
the Company has a limited operating history on which to base an evaluation of
its business and prospects. The Company's prospects must be considered in light
of the risks, expenses and difficulties frequently encountered by companies in
their early stage of development, particularly companies in new and rapidly
evolving markets such as online commerce. Such risks for the Company include,
but are not limited to, an evolving and unpredictable business model and the
management of growth. To address these risks, the
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Company must, among other things, maintain and increase its customer base,
implement and successfully execute its business and marketing strategy, continue
to develop and upgrade its technology and transaction-processing systems,
improve its Web site, provide superior customer service and order fulfillment,
respond to competitive developments, and attract, retain and motivate qualified
personnel. There can be no assurance that the Company will be successful in
addressing such risks, and the failure to do so could have a material adverse
effect on the Company's business, prospects, financial condition and results of
operations.
Since inception, the Company has incurred significant losses, and as of
September 30, 1997 had an accumulated deficit of $24.3 million. The Company
believes that its success will depend in large part on its ability to (i) extend
its brand position, (ii) provide its customers with outstanding value and a
superior shopping experience, and (iii) achieve sufficient sales volume to
realize economies of scale. Accordingly, the Company intends to continue to
invest heavily in marketing and promotion, product development and technology
and operating infrastructure development. The Company also offers attractive
pricing programs, which have reduced its gross margins. Because the Company has
relatively low product gross margins, achieving profitability given planned
investment levels depends upon the Company's ability to generate and sustain
substantially increased revenue levels. As a result, the Company believes that
it will continue to incur substantial operating losses for the foreseeable
future, and that the rate at which such losses will be incurred may increase
significantly from current levels. Although the Company has experienced
significant revenue growth in recent periods, such growth rates are not
sustainable and will decrease in the future. In view of the rapidly evolving
nature of the Company's business and its limited operating history, the Company
believes that period-to-period comparisons of its operating results, including
the Company's gross profit and operating expenses as a percentage of net sales,
are not necessarily meaningful and should not be relied upon as an indication of
future performance.
As a result of the Company's limited operating history and the emerging nature
of the markets in which it competes, the Company is unable to accurately
forecast its revenues. The Company's current and future expense levels are based
largely on its investment plans and estimates of future revenues and are to a
large extent fixed. Sales and operating results generally depend on the volume
of, timing of and ability to fulfill orders received, which are difficult to
forecast. The Company may be unable to adjust spending in a timely manner to
compensate for any unexpected revenue shortfall. Accordingly, any significant
shortfall in revenues in relation to the Company's planned expenditures would
have an immediate adverse effect on the Company's business, prospects, financial
condition and results of operations. Further, as a strategic response to changes
in the competitive environment, the Company may from time to time make certain
pricing, service, marketing or acquisition decisions that could have a material
adverse effect on its business, prospects, financial condition and results of
operations. For example, the Company has agreed in certain of its promotional
arrangements with Internet aggregators to make significant fixed payments. There
can be no assurance that these arrangements will generate adequate revenues to
cover the associated expenditures, and any significant shortfall would have a
material adverse effect on the Company's financial condition and results of
operations.
The Company expects to experience significant fluctuations in its future
quarterly operating results due to a variety of factors, many of which are
outside the Company's control. Factors that may adversely affect the Company's
quarterly operating results include (i) the Company's ability to retain existing
customers, attract new customers at a steady rate and maintain customer
satisfaction, (ii) the Company's ability to manage buying, inventory and
fulfillment operations and maintain gross margins, (iii) the development,
announcement or introduction of new sites, services and products by the Company
and its competitors, (iv) price competition or higher wholesale prices in the
industry, (v) the level of use of the Internet and online services and
increasing consumer acceptance of the Internet and other online services for the
purchase of consumer products such as those offered by the Company, (vi) the
Company's ability to upgrade and develop its systems and infrastructure and
attract new personnel in a timely and effective manner, (vii) the level of
traffic on the Company's Web site, (viii) technical difficulties, system
downtime or Internet brownouts, (ix) the amount and timing of operating costs
and capital expenditures relating to expansion of the Company's business,
operations and infrastructure, (x) the number of popular books introduced during
the period, (xi) the level of merchandise returns experienced by the Company,
(xii) governmental regulation, (xiii) disruptions in service by common carriers
due to strikes or otherwise, and (xiv) general economic conditions and economic
conditions specific to the Internet, online commerce and the book industry.
The Company expects that it will experience seasonality in its business,
reflecting a combination of seasonal fluctuations in Internet usage and
traditional retail seasonality patterns. Internet usage and the rate of Internet
growth may be expected to decline during the summer. Further, sales in the
traditional retail book industry are significantly higher in the fourth calendar
quarter of each year than in the preceding three quarters.
Due to the foregoing factors, in one or more future quarters the Company's
operating results may fall below the expectations of securities analysts and
investors. In such event, the trading price of the common stock would likely be
materially adversely affected.
The Company has recorded aggregate deferred compensation of approximately $3.3
million. The amount recorded represents the difference between the grant price
and the deemed fair value of the Company's common stock for shares subject to
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options granted in 1997 and 1996. Deferred compensation is amortized over the
vesting period of the options, which is typically five years. Amortization for
the quarter and nine months ended September 30, 1997 was $368,000 and $993,000,
respectively.
RESULTS OF OPERATIONS
NET SALES
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
(in thousands) September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $37,887 $ 4,173 $81,747 $ 7,278
- -----------------------------------------------------------------------------------------------------
</TABLE>
Net sales are composed of the selling price of books and other merchandise sold
by the Company, net of returns, as well as outbound shipping and handling
charges. Growth in net sales reflects a significant increase in units sold due
to the significant growth of the Company's customer base and repeat purchases
from the Company's existing customers. International sales represented 26% and
35% of net sales for the quarters ended September 30, 1997 and 1996,
respectively, and 27% and 36% of net sales for the nine months ended September
30, 1997 and 1996, respectively.
GROSS PROFIT
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
(in thousands) September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gross profit $7,178 $911 $15,921 $1,568
Gross margin 18.9% 21.8% 19.5% 21.5%
- -----------------------------------------------------------------------------------------------------
</TABLE>
Gross profit equals sales less cost of sales, which consists of the cost of
merchandise sold to customers and outbound and inbound shipping costs. Gross
profit increased in absolute dollars reflecting the Company's increased sales
volume. The Company's gross margin decreased due to a combination of lower
prices and lower overall shipping margins, partially offset by improvements in
product cost.
The Company believes that offering its customers attractive prices is an
essential component of its business strategy. Accordingly, the Company offers
20% and 30% discounts on more than 400,000 titles, with featured titles
discounted at 40%. The Company may in the future expand or increase the
discounts it offers to its customers and may otherwise alter its pricing
structure and policies.
MARKETING AND SALES
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
(in thousands) September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Marketing and sales $10,979 $2,251 $22,658 $3,152
Percentage of net sales 29.0% 53.9% 27.7% 43.3%
- -----------------------------------------------------------------------------------------------------
</TABLE>
Marketing and sales expenses consist primarily of advertising, public relations
and promotional expenditures, as well as payroll and related expenses for
personnel engaged in marketing, selling and fulfillment activities. Marketing
and sales expenses increased primarily due to increases in the Company's
promotional expenditures, including $3.4 million and $5.2 million for the
quarter and nine months ended September 30, 1997, respectively, associated with
the Internet aggregator promotional relationships, and increased personnel and
related expenses required to implement the Company's marketing strategy and
fulfill customer demand. Such expenses decreased as a percentage of net sales
due to the significant increase in net sales. The Company intends to continue to
pursue its aggressive branding and marketing campaign and expects its costs of
fulfillment to increase based on anticipated sales growth and costs associated
with the Company's distribution center expansion (see "Liquidity and Capital
Resources"). Therefore, the Company expects marketing and sales expenses to
increase significantly in absolute dollars.
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PRODUCT DEVELOPMENT
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
(in thousands) September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Product development $3,582 $755 $7,965 $1,412
Percentage of net sales 9.5% 18.1% 9.7% 19.4%
- -----------------------------------------------------------------------------------------------------
</TABLE>
Product development expenses consist principally of payroll and related expenses
for development, editorial and network operations personnel and consultants,
systems and telecommunications infrastructure and costs of acquired content. The
increases in product development expenses were primarily attributable to
increased staffing and associated costs related to enhancing the features,
content and functionality of the Company's Web site and transaction-processing
systems, as well as increased investment in systems and telecommunications
infrastructure. Such expenses decreased significantly as a percentage of net
sales due to the significant increase in net sales. To date, all product
development costs have been expensed as incurred. The Company believes that
continued investment in product development is critical to attaining its
strategic objectives and, as a result, expects product development expenses to
increase significantly in absolute dollars.
GENERAL AND ADMINISTRATIVE
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
(in thousands) September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
General and administrative $1,803 $377 $4,653 $588
Percentage of net sales 4.8% 9.0% 5.7% 8.1%
- -----------------------------------------------------------------------------------------------------
</TABLE>
General and administrative expenses consist of payroll and related expenses for
executive, accounting and administrative personnel, recruiting, professional
fees and other general corporate expenses. The increase in general and
administrative expenses was primarily due to increased salaries and related
expenses associated with the hiring of additional personnel, increases in
professional fees and costs attributable to being a public company. Such
expenses decreased as a percentage of net sales due to the significant increase
in net sales. The Company expects general and administrative expenses to
increase in absolute dollars as the Company expands its staff and incurs
additional costs related to the growth of its business and being a public
company.
INTEREST INCOME
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
(in thousands) September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Interest income $676 $92 $1,102 $106
Percentage of net sales 1.8% 2.2% 1.3% 1.5%
- -----------------------------------------------------------------------------------------------------
</TABLE>
Interest income on cash, cash equivalents and short-term investments increased
due to higher cash, cash equivalents and short-term investment balances
resulting primarily from the Company's initial public offering of common stock
in May 1997.
INCOME TAXES
The Company has not generated any net income to date and therefore has not paid
any federal income taxes since inception. Utilization of the Company's net
operating loss carryforwards may be subject to certain limitations under Section
382 of the Internal Revenue Code. The Company has provided a full valuation
allowance on the deferred tax asset, consisting primarily of net operating loss
carryforwards, because of uncertainty regarding its realizability.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1997 the Company's cash and cash equivalents were $44.7
million, compared to $6.2 million at December 31, 1996. On May 15, 1997, the
Company completed an initial public offering of 3,000,000 shares of common stock
at a price of $18.00 per share. The net proceeds to the Company from the
offering were approximately $49.1 million.
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Net cash used in operating activities of $3.8 million for the nine months ended
September 30, 1997 was primarily attributable to a net loss of $18.3 million and
increases of $2.2 million in inventories and $1.5 million in prepaid expenses
and other assets and a decrease of $598,000 in accrued advertising, largely
offset by increases of $12.5 million in accounts payable and $3.4 million in
other accrued expenses and $3.0 million in depreciation and amortization. For
the nine months ended September 30, 1996, cash used in operating activities of
$722,000 resulted primarily from a net loss of $3.5 million, largely offset by
increases in accounts payable, other accrued expenses and accrued advertising.
Net cash used in investing activities was $7.5 million for the nine months ended
September 30, 1997, and consisted of purchases of short-term investments of $8.7
million and purchases of equipment of $4.0 million, partially offset by
maturities of short-term investments of $5.2 million. Cash used in investing
activities of $675,000 for the nine months ended September 30, 1996 was
attributable to purchases of equipment. The large increases in the components of
working capital on a period-to-period basis are a direct result of the rapid
growth of the Company's revenues and related activities. Such growth has
required the Company to purchase additional equipment and software and increase
purchases of products, which resulted in corresponding increases in inventories
and accounts payable.
Cash flows provided by financing activities of $49.8 million for the nine months
ended September 30, 1997 consisted of net proceeds of approximately $49.1
million from the initial public offering, $474,000 from the exercise of common
stock options and $200,000 from the issuance of preferred stock. Cash flows of
$8.0 million attributable to financing activities for the nine months ended
September 30, 1996 consisted primarily of net proceeds from the issuance of
preferred stock.
As of September 30, 1997 the Company's principal sources of liquidity consisted
of $44.7 million of cash and cash equivalents and $3.5 million of short-term
investments. As of that date, the Company's principal commitments consisted of
obligations outstanding under operating leases and commitments for advertising
and promotional arrangements. Although the Company has no material commitments
for capital expenditures, it anticipates a substantial increase in its capital
expenditures and lease commitments consistent with anticipated growth in
operations, infrastructure and personnel. The Company has entered into lease
arrangements to increase its distribution center capacity pursuant to which the
Company intends to open a 200,000 square foot facility in Delaware and to expand
its Seattle distribution center by approximately 35,000 square feet. The Company
may establish one or more additional distribution centers within the next twelve
months, which would require it to commit to lease obligations, stock
inventories, purchase equipment and install leasehold improvements. In addition,
the Company has announced plans to maintain a larger merchandise inventory in
order to provide better availability to customers and achieve purchasing
efficiencies.
On November 7, 1997, the Company entered into a commitment letter for a $75
million three year senior secured term credit facility (the "Facility") with
Deutsche Bank AG, New York Branch ("Deutsche") as administrative agent and
Deutsche Morgan Grenfell, Inc. ("DMG") as arranger. The Facility may be
increased to an amount not to exceed $100 million, at the determination of both
the Company and DMG.
The purpose of the Facility is to finance working capital, capital additions,
acquisitions, operations, joint ventures and general corporate purposes. The
Facility will be secured by a first priority lien on substantially all of the
Company's assets. The Company has the option to choose from the following
interest rate options: (i) a variable rate adjusted every one, two, three or six
months at the Company's option and based on the London Interbank Offered Rate
("LIBOR") plus 3.50% per annum for the first six months of the Facility and
4.00% thereafter, or (ii) a variable rate of interest based on Deutsche's Base
Rate plus 1.50% per annum for the first six months of the Facility and 2.00%
thereafter. In connection with the Facility, the Company will enter into certain
interest rate risk management agreements. The Company is required to make
mandatory prepayments on the Facility equal to 50% of the proceeds from any debt
and/or equity offerings (other than the proceeds of certain permitted debt) and
100% of the proceeds from certain sales of assets that are not reinvested in
replacement assets.
The Facility will include covenants restricting certain activities by the
Company, including (i) the incurrence of additional indebtedness, (ii)
consolidations, mergers and sales of assets and (iii) dividends and
distributions to stockholders. In addition, financial covenants will require the
Company to, among other things, maintain a minimum cash balance, maintain
certain levels of earnings or losses before interest, taxes, depreciation and
amortization, limit its accounts payable aging and limit its capital and
acquisition expenditures. The Facility will contain standard events of default
including, among other things, a change in ownership or control.
The Company will issue to Deutsche warrants to purchase a total of 750,000
shares of the Company's Common Stock. The warrants will be canceled if the
Company repays the Facility in full according to the following schedule: all
warrants if repayment occurs within 12 months; warrants to purchase 675,000
shares if repayment occurs within 15 months; warrants to purchase 562,500 shares
if repayment occurs within 18 months; warrants to purchase 450,000 shares if
repayment occurs within 24 months; warrants to purchase 225,000 shares if
repayment occurs within 30 months; and no warrants if repayment occurs after 30
months. Warrants become exercisable when they can no longer be canceled and
remain exercisable for five years after such date. The exercise price for the
warrants will be $52.11.
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The Facility has been approved by the Company's Board of Directors and Deutsche,
but is subject to the satisfaction of several conditions, including the absence
of material adverse change, satisfactory completion of definitive documents and
satisfactory completion of Deutsche's due diligence. Subject to the fulfillment
of these conditions, the Company expects to close the Facility in December 1997.
The Company expects to use the proceeds of the Facility to support its strategy
of investing heavily in marketing and promotion, product development and
technology and operating infrastructure development and may commit to
significant fixed expenditures. The ability of the Company to generate planned
future revenues, and therefore its ability to comply with the covenants
contained in the Facility, may be affected by events beyond its control. If the
Company cannot satisfy the Facility's covenants, the Company will be in default.
In such event, the lending institutions will be able to exercise their remedies,
including the right to declare all principal and interest immediately due and
payable. If the Company were unable to make such payment, or to repay the amount
owing under the Facility at the end of its term, the lending institutions could
foreclose on the Company's assets, substantially all of which will be pledged as
security for the Facility.
The Company believes that current cash and cash equivalent balances and
short-term investments will be sufficient to meet its anticipated cash needs for
at least 12 months. However, any projection of future cash needs and cash flows
is subject to substantial uncertainty. If cash generated from operations is
insufficient to satisfy the Company's liquidity requirements, the Company may
seek to sell additional equity or debt securities or to obtain additional credit
facilities. The sale of additional equity or convertible debt securities could
result in additional dilution to the Company's stockholders. There can be no
assurance that financing will be available in amounts or on terms acceptable to
the Company, if at all. In addition, the Company will, from time to time,
consider the acquisition of or investment in complementary businesses, products
and technologies, which might increase the Company's liquidity requirements or
cause the Company to issue additional equity or debt securities.
ADDITIONAL FACTORS THAT MAY AFFECT FUTURE RESULTS
In addition to the factors discussed in the "Overview" section of this
Management's Discussion and Analysis of Financial Condition and Results of
Operations and the Company's final prospectus dated May 15, 1997, as filed with
the SEC, including, among others, the Company's limited operating history, the
unpredictability of its future revenues and the unpredictable and evolving
nature of its business model, the following additional factors may affect the
Company's future results.
The online commerce market, particularly over the Internet, is new, rapidly
evolving and intensely competitive, which competition the Company expects will
intensify in the future. In addition, the retail book industry is intensely
competitive. The Company's current or potential competitors include (i) various
online booksellers and vendors of other information-based products such as CDs
and videotapes, including entrants into narrow specialty niches, (ii) a number
of indirect competitors that specialize in online commerce or derive a
substantial portion of their revenues from online commerce, through which
bookstores other than the Company may offer products, and (iii) publishers and
retail vendors of books, music and videotapes, including large specialty
booksellers, with significant brand awareness, sales volume and customer bases.
Many of these competitors have longer operating histories, larger customer
bases, greater brand recognition and significantly greater financial, marketing
and other resources than the Company. In addition, new technologies and the
expansion of existing technologies may increase the competitive pressures on the
Company. Competitive pressures created by any one of the Company's competitors,
or by the Company's competitors collectively, could have a material adverse
effect on the Company's business, prospects, financial condition and results of
operations.
The Company's revenues depend on the number of visitors who shop on its Web site
and the volume of orders it fulfills. Any system interruptions that result in
the unavailability of the Company's Web site or reduced order fulfillment
performance would reduce the volume of goods sold and the attractiveness of the
Company's product and service offerings. The Company has experienced periodic
system interruptions, which it believes will continue to occur from time to
time. The Company uses an internally developed system for its Web site, search
engine and substantially all aspects of transaction processing, including order
management, cash and credit card processing, purchasing, inventory management
and shipping. The Company will be required to add additional software and
hardware and further develop and upgrade its existing technology,
transaction-processing systems and network infrastructure to accommodate
increased traffic on its Web site and increased sales volume through its
transaction-processing systems. Any inability to do so may cause unanticipated
system disruptions, slower response times, degradation in levels of customer
service, impaired quality and speed of order fulfillment, or delays in reporting
accurate financial information. There can be no assurance that the Company will
be able to accurately project the rate or timing of increases, if any, in the
use of its Web site or in a timely manner to effectively upgrade and expand its
transaction-processing systems or to integrate smoothly any newly developed or
purchased modules with its existing systems. Any inability to do so would have a
material adverse effect on the Company's business, prospects, financial
condition and results of operations. Substantially all of the Company's computer
and communications hardware is located at a single leased facility in Seattle,
Washington. The Company's systems and operations are vulnerable to damage or
interruption from fire, flood, power loss, telecommunications failure,
break-ins, earthquake and similar events. The Company does not currently
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<PAGE> 13
have redundant systems or a formal disaster recovery plan and does not carry
sufficient business interruption insurance to compensate it for losses that may
occur. Despite the implementation of network security measures by the Company,
its servers are vulnerable to computer viruses, physical or electronic break-ins
and similar disruptions, which could lead to interruptions, delays, loss of data
or the inability to accept and fulfill customer orders. The occurrence of any of
the foregoing events could have a material adverse effect on the Company's
business, prospects, financial condition and results of operations.
The Company has rapidly and significantly expanded its operations, and
anticipates that further significant expansion will be required to address
potential growth in its customer base and market opportunities. This expansion
has placed, and is expected to continue to place, a significant strain on the
Company's management, operational and financial resources. To manage the
expected growth of its operations and personnel, the Company will be required to
improve existing and implement new transaction-processing, operational and
financial systems, procedures and controls, and to expand, train and manage its
growing employee base. There can be no assurance that the Company's current and
planned personnel, systems, procedures and controls will be adequate to support
the Company's future operations, that management will be able to hire, train,
retain, motivate and manage required personnel or that Company management will
be able to successfully identify, manage and exploit existing and potential
market opportunities. If the Company is unable to manage growth effectively, its
business, prospects, financial condition and results of operations will be
materially adversely affected.
The Company may choose to develop new Web sites, promote new or complementary
products or sales formats, expand the breadth and depth of products and services
offered or, expand its market presence through relationships with third parties
or acquisition of new or complementary businesses, products or technologies.
Expansion of the Company's operations in this manner would require significant
additional development, operations and editorial expenditures and would strain
the Company's management, financial and operational resources. The lack of
market acceptance of such efforts or the Company's inability to generate
satisfactory revenues from such expanded services or products to offset their
cost could have a material adverse effect on the Company's business, prospects,
financial condition and results of operations. Furthermore, any such activity
that is not favorably received by customers could damage the Company's
reputation or the Amazon.com brand.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
None
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On May 12, 1997, B&N filed suit against the Company in the United
States District Court for the Southern District of New York. The
suit alleged one count of false and misleading advertising in
violation of the Lanham Act. In October 1997, B&N and the Company
agreed to a settlement of the lawsuit with no admission of
liability of any type and no payment of damages.
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ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Changes in Securities - None
Use of Proceeds - The Company's registration statement under the
Securities Act of 1933, as amended, for its initial public
offering (the "Registration Statement") became effective on May
14, 1997, and the initial public offering commenced on May 15,
1997. The offering terminated after the sale of all securities
that were registered under the Registration Statement. Deutsche
Morgan Grenfell Inc., Alex. Brown & Sons Incorporated and
Hambrecht & Quist LLC were the managing underwriters of the
offering. The Company registered and sold 3,000,000 shares of
common stock, par value $0.01 per share, with an aggregate price
of $54.0 million. The Company incurred a total of approximately
$4.9 million of expenses in connection with the registration and
distribution of common stock in the offering, of which
approximately $3.8 million were paid in underwriting discounts
and commissions and approximately $1.1 million were paid to third
parties for other expenses. Offering proceeds, net of aggregate
expenses of approximately $4.9 million, were $49.1 million. The
Company has used approximately $8.3 million of the net offering
proceeds for working capital and approximately $40.8 million of
the offering proceeds for the purchase of temporary investments
consisting of cash, cash equivalents and short-term investments.
The Company has not used any of the net offering proceeds for
construction of plant, building or facilities; purchase or
installation of machinery and equipment; purchases of real
estate; acquisition of other businesses; or repayment of
indebtedness. None of the expenses paid in connection with the
registration and distribution of the common stock in the
offering, and none of the net offering proceeds, were paid
directly or indirectly to directors, officers, or general
partners of the Company or their associates, persons owning 10%
or more of any class of the Company's securities, or affiliates
of the Company. Approximately $8.3 million of the net offering
proceeds used as working capital were paid directly or indirectly
to third parties.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Lease Agreement, dated August 22, 1997, by and
between the Company and McConnell Development, Inc.
10.2 Amendment 1 to Lease Agreement, dated July 16, 1997,
by and between the Company and Pacific Northwest
Group A.
10.3 Amendment 2 to Lease Agreement, dated September 11,
1997, by and between the Company and Pacific
Northwest Group A.
11. Statement Regarding Computation of Net Loss Per Share
27. Financial Data Schedule
(b) Reports on Form 8-K
None
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<PAGE> 15
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
AMAZON.COM, INC.
(REGISTRANT)
DATED: November 14, 1997
By: /s/ Joy D. Covey
Joy D. Covey
Chief Financial Officer
Vice President
Finance and Administration
Treasurer and Secretary
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<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Title
<S> <C>
10.1 Lease Agreement, dated August 22, 1997, by and between the
Company and McConnell Development, Inc.
10.2 Amendment 1 to Lease Agreement, dated July 16, 1997, by and
between the Company and Pacific Northwest Group A.
10.3 Amendment 2 to Lease Agreement, dated September 11, 1997, by
and between the Company and Pacific Northwest Group A.
11 Statement Regarding Computation of Net Loss per Share
27 Financial Data Schedule
</TABLE>
Page 16
<PAGE> 1
EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE, made this 22nd day of August, 1997, between MCCONNELL
DEVELOPMENT, INC. and 700 FRENCHTOWN DEVELOPMENT CORPORATION, a Delaware limited
liability corporation (hereinafter called "Landlord"), and AMAZON.COM, INC. a
Delaware corporation, (hereinafter called "Tenant"). In consideration of the
premises and the covenants, conditions and rents hereinafter set forth, it is
agreed as follows:
1. PREMISES AND TERM; RENEWAL OPTIONS
(a) Landlord does hereby lease, demise and let to Tenant, and
Tenant does hereby lease, take and accept from Landlord, the "Premises", known
as Centerpointe Business Complex, 700 Frenchtown Road, New Castle, Delaware,
being comprised of approximately two hundred thousand (200,000) square feet of
space located in a one story warehouse building ("Building") to be built by
Landlord, as outlined in red on the building and site plan attached hereto-as
EXHIBIT A, which Building shall contain a net leasable area of two hundred
thousand (200,000) square feet and is located on all that lot of ground in New
Castle, Delaware more fully described in EXHIBIT B attached hereto.
The Premises shall be delivered to Tenant in two phases: (i) the
first phase ("Phase I Premises") shall be delivered on or before November 1,
1997, and shall consist of 100,000 square feet, including 5,000 square feet of
finished office space, in the area designated as the Phase I Premises on Exhibit
B; and (ii) the second phase ("Phase II Premises") shall be delivered on or
before January 1, 1998, and shall consist of the remaining 100,000 square feet,
including 5,000 square feet of finished office space, in the area designated as
the Phase II Premises on Exhibit B. As used in this Lease, "Premises" includes
the Phase I Premises and the Phase II Premises.
(b) The term of this Lease with respect to the Phase I Premises
shall commence on the date which is later to occur of the date on which the
Phase I Premises are substantially completed (as defined below) or November 1,
1997 ("Phase I Commencement Date"). The term of this Lease with respect to the
Phase II Premises shall commence on the date which is later to occur of the date
upon which the Phase II Premises are substantially completed or January 1, 1998
("Phase II Commencement Date"). The term of this Lease shall expire on the last
day of the 60th full month after the Phase I Commencement Date ("Termination
Date"). Landlord shall give Tenant written notice of Landlord's making
application for a certificate of occupancy for each phase of the Premises
fifteen (15) days prior to making such application, and upon Landlord's receipt
of a temporary certificate of occupancy for each phase of the Premises, Landlord
shall immediately give Tenant written notice thereof. When the substantial
completion date for each phase has been determined, Landlord and Tenant shall
within 5 business days thereafter execute a written agreement confirming such
date as the applicable Commencement Date.
If Landlord, for any reason, cannot deliver possession of each
phase of the Premises to Tenant upon the applicable Commencement Date, this
Lease shall not be void or violable, but the provisions of Section 2(c)shall
apply. Notwithstanding the foregoing, if Landlord cannot deliver
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<PAGE> 2
possession of all of the Premises to Tenant on or before April 1, 1998, this
Lease shall be voidable by Tenant upon written notice to Landlord within 30 days
thereafter.
Each phase of the Premises shall be deemed "substantially completed"
when (i) such phase is accessible and fully usable by Tenant for its normal
business operations, (ii) a valid temporary certificate of occupancy permitting
the use of such phase of the Premises for Tenant's intended use has been issued
by the City of New Castle, Delaware, and (iii) RHJ Associates has executed a
certificate to Tenant certifying that Landlord's Work (as defined in Section 2)
has been substantially completed in accordance with the plans and specifications
approved by Landlord and Tenant. The foregoing notwithstanding, a phase of the
Premises shall not be deemed to be substantially completed if any details of
construction, decoration or mechanical adjustment, or cleanup remain to be done
in the Premises or any part thereof, that will, in Tenant's reasonable judgment,
substantially impair, reduce or hinder its ability to utilize such phase of the
Premises, or that might expose any of Tenant's computers, electrical or
electronic equipment to damage or reduced performance.
(c) Tenant shall have the option to renew the term of this Lease for
two renewal terms (each, a "Renewal Term") of five (5) years each, such
renewals to be upon the covenants, terms and conditions as set forth in this
Lease, except that annual rent for a Renewal Term shall be established as
described below. In order to exercise an option to renew, Tenant shall give
written notice to Landlord not less than one hundred eighty (180) days prior to
the end of the then-current Lease term.
The annual rent for each Renewal Term shall be equal to the "Fair
Market Rental Value" (defined below) of the Premises as of the commencement of
such Renewal Term.
"Fair Market Rental Value" shall be determined as follows:
Landlord and Tenant shall seek to agree as to the Fair Market Rental Value
within thirty (30) days after Tenant gives Landlord notice of its election to
renew this Lease. If Landlord and Tenant do not agree about Fair Market Rental
Value within such thirty (30) day period, the following provisions shall apply:
Within fifteen (15) days after the expiration of the above-mentioned
thirty (30) day period, Landlord and Tenant shall each identify an
impartial person to act as a valuation expert and notify the other
thereof. The expert specified in each such notice must be a commercial
real estate M.A.I. appraiser conducting business in New Castle, Delaware
and having not less than five (5) years' active experience as a real
estate M.A.I appraiser in the commercial and industrial leasing market
in New Castle, Delaware. If either party fails to appoint an expert
within such fifteen (15) day period, then the determination of the
expert first appointed shall be final, conclusive and binding on both
parties.
The named experts shall together determine the Fair Market Rental Value.
In making such determination, the experts shall consider the rentals at
which leases are being concluded for comparable space in comparable
buildings in the New Castle, Delaware region. If the experts fail to
agree on the Fair Market Rental Value within thirty (30)
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<PAGE> 3
days of their appointment and the difference in their conclusions about
Fair Market Rental Value is ten percent (10%) or less of the lower of
the two determinations, Fair Market Rental Value shall be the average of
the two determinations.
If the two experts fail to agree on Fair Market Rental Value and the
difference between the two determinations exceeds ten percent (10%) of
the lower of the two determinations, then the experts shall appoint a
third expert, similarly impartial and qualified, to determine the Fair
Market Rental Value. Such third expert shall determine the Fair Market
Rental Value within thirty (30) days of his or her appointment, and the
average of the determinations of the two closest experts is final,
conclusive and binding on Landlord and Tenant. Landlord and Tenant shall
each execute and deliver an agreement confirming annual rent for the
Renewal Term.
Landlord and Tenant shall each pay the fees of any expert appointed by
Landlord and Tenant, respectively, and Landlord and Tenant shall each
pay one-half (1/2) of the fees of the third expert, if any.
Notwithstanding anything to the contrary contained herein, in no event
shall the annual rent payable during either Renewal Term be less than the annual
rent which was payable during the preceding term.
2. LANDLORD'S WORK; RELOCATION OPTION
(a) Landlord shall, at no cost to Tenant, construct the Building,
which shall be a twenty-four (24) foot clear warehouse building containing
approximately 200,000 leasable rentable square feet of space, and shall finish
the interior of the Premises on a "turn key" basis, pursuant to this Lease, the
Work Letter attached, hereto as Exhibit C, and the space plan prepared by RHJ
Associates dated August 21, 1997, a copy of which is attached hereto as Exhibit
D. (Such construction of the Building and such finishing of the interior of the
Premises on a "turn-key" basis are referred to collectively as "Landlord's
Work"). In connection with Landlord's Work, Landlord shall provide, at its cost
and expense, all preliminary and final plans, drawings and specifications, and
Landlord shall arrange and pay for all necessary and desirable architectural and
space planning work. All plans and specifications for the finishing of the
interior of the Premises, all architectural and space planning work, and the
cost of the work to finish the interior of the Premises, shall be mutually
approved by Landlord and Tenant. Tenant agrees that when any such approval is
requested of Tenant by Landlord, Tenant shall respond to Landlord within five
(5) business days of Landlord's request. In the event that Tenant shall
disapprove of any item for which its approval is sought, Tenant shall clearly
state the reasons therefor. The parties agree that in the event that all plans
and specifications for the finishing of the interior of the Premises, all
architectural and space planning work, and the cost of the work to finish the
interior of the Premises are not agreed upon by Landlord and Tenant on or before
September 15, 1997, then Landlord shall not be obligated to deliver the Phase I
Premises on or before November 1, 1997 or the Phase II Premises on or before
January 1, 1998; rather the applicable commencement date shall be extended by
one day for each day between September 15, 1997 and the date that all such items
have been approved. All of Landlord's Work shall be done in a good and
workmanlike manner. All of Landlord's Work shall
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<PAGE> 4
be done in compliance with the approved plans and specifications, all applicable
provisions of this Lease and all applicable laws, ordinances, directions, rules
and regulations of governmental authorities having jurisdiction thereof.
Landlord shall, at its sole cost and expense, obtain any governmental permits
required in connection with Landlord's Work.
(b) Landlord shall promptly correct all defects in Landlord's Work
and all failures of Landlord's Work to conform to the plans and specifications
for such Work which have been agreed upon by Landlord and Tenant, which defects
or nonconformities are discovered before or within one year after the date upon
which Tenant first occupies the applicable phase of the Premises. Landlord shall
bear all costs of correcting Landlord's Work. Landlord and Tenant shall each
give the other prompt written notice after discovering the existence of any such
defects or nonconformities in Landlord's Work.
(c) If, on or before September 30, 1997, Landlord and Tenant agree
that the Phase I Premises are not likely to be completed by November 1, 1997, or
if the Phase I Premises are not in fact substantially completed by November 1,
1997, then Landlord shall provide occupancy for Tenant in an approximately
36,000 square foot warehouse building controlled by Landlord and located at 1600
Johnson Way, New Castle, Delaware ("Temporary Space"). Tenant shall have
occupancy in the Temporary Space commencing November 1, 1997 and terminating
fifteen (l5)days after the Phase I Premises have been substantially completed.
Tenant's occupancy in the Temporary Space shall be free of rent and all other
charges.
In addition, if the Phase I Premises are not substantially
completed by November 1, 1997, then for every day thereafter that the Phase I
Premises are late, Landlord shall pay to Tenant the amount of One Thousand Four
Hundred Dollars ($1,400) per day for every day until the Phase I Premises have
been substantially completed. If the Premises are not substantially completed by
April 1, 1998, and Tenant terminates this Lease pursuant to Section 1(b), then
Landlord shall immediately pay all amounts owed under this Section 2(c) to
Tenant. If the Premises are substantially completed prior to April 1, 1998, all
amounts owed by Landlord to Tenant under this Section 2(c) and not paid by
Landlord may be deducted from and offset against Basic Rental and all other
additional rent until all such amounts have been recovered by Tenant.
Landlord's maximum obligation under this Section 2(c) shall be Two Hundred
Fifty Thousand Dollars ($250,000). This Section 2(c) shall survive the
termination of this Lease. Tenant shall be allowed to vacate the Temporary Space
when the Phase I Commencement Date has been achieved.
3. RENT
(a) Tenant covenants to pay to Landlord at such place as Landlord
shall from time to time direct, basic rent ("Basic Rental") computed at Four and
44/100 Dollars ($4.44) per year per leasable square foot. Accordingly, the Basic
Rental for the Phase I Premises shall be $37,000.00 per month, and the Basic
Rental for the Phase II Premises shall be $37,000.00 per month. Such Basic
Rental shall be payable in equal monthly installments in advance and without
demand, commencing on the Phase I Commencement Date and the Phase II
Commencement Date, as the case may be.
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<PAGE> 5
Landlord and Tenant acknowledge and agree that the precise leasable
square foot area of the Premises cannot be determined until such time as the
Premises are substantially completed. Upon the substantial completion of each
phase of the Premises, Landlord and Tenant shall, at Landlord's expense,
determine the precise leasable square foot area of the Premises using the BOMA
standard of measurement for industrial type space and, upon such determination,
Landlord and Tenant shall execute a certificate setting forth such area, and
based upon such area, the Basic Rental payable under this Section 3. Within 30
days after such determination is made, if the actual leasable square foot area
of each phase of the Premises is determined to be less than 100,000 square feet,
Landlord shall refund any excess Basic Rental previously paid by Tenant. If the
actual leasable square foot area of each phase of the Premises is determined to
be greater than 103,000 square feet, Tenant shall be under no obligation to pay
Basic Rental for any space in excess of 103,000 leasable square feet.
(b) The payment of Basic Rental shall be net to the Landlord, and
accordingly shall be in addition to and over and above all other payments to be
made by Tenant as hereinafter provided and all expenses pertaining to the
ownership, maintenance and use of the premises, except as expressly set forth
herein, it being the purpose and intent of the Landlord and Tenant that the rent
payable hereunder shall when received by Landlord be absolutely net to it, and
that except as expressly provided in Section 11(c) hereafter all costs,
charges, expenses and obligations of every kind relating to the ownership of the
Premises and the use thereof which may arise or become due during the term of
this Lease shall be paid by Tenant and that Landlord shall be indemnified and
saved harmless by Tenant from and against same.
(c) Tenant covenants to pay when due, without any abatement,
deduction or set-off, the rent provided for herein and to pay as additional rent
when due all other sums, costs, charges and expenses payable by Tenant under
this Lease, and, in the event of any nonpayment thereof, such sums shall be
collected as rent, and Landlord shall have all the rights and remedies provided
for herein or by law in the case of nonpayment of rent. All payments of rent,
additional rent, and any other charges required to be paid hereunder which are
not paid promptly by Tenant to Landlord when due shall be subject to a late
charge of one and 1.0% per month outstanding.
4. TAXES
Tenant covenants to pay Landlord, as additional rental, one hundred
percent (100%) of any real estate taxes and assessments, as hereinafter defined,
levied on the land and improvements of which the Premises are a part as follows:
(a) Real estate taxes and assessments shall be adjusted and
pro-rated to the Commencement Date or the Termination Date of the term as the
case may be.
(b) Tenant shall pay its share of such real estate taxes and
assessments as set forth above within thirty (30) days before such taxes and
assessments are delinquent, provided that Landlord has delivered a statement of
its calculations supported by copies of the actual billings rendered to
Landlord.
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(c) For purposes of this paragraph, the term "real estate taxes and
assesments" shall include any public charges against the land and improvements
of which the Premises are a part (including assessments by any County,
Municipal, Metropolitan District or Commission). Landlord represents to Tenant
that it has been advised by the City of New Castle that the Premises is entitled
to the benefit of a ten-year real estate tax abatement program (applicable to
the City of New Castle portion of the tax bill only), which shall be in effect
for ten years from and after the Phase I Commencement Date. If the Premises do
not receive the benefit of the ten (10) year real estate abatement program, then
Landlord and Tenant shall each be responsible for one-half (1/2) of all
additional taxes due during the Lease term by reason of not receiving the
abatement.
(d) The Tenant shall have the right to contest the amount or
validity, in whole or in part, of any increase in such real estate taxes and
assessments in the name of the Landlord or the Tenant, as required, by
appropriate proceedings diligently conducted in good faith and the Landlord
agrees to fully cooperate in any such efforts by the Tenant, at the expense of
Tenant. If the payment of the tax or assessment would operate as a bar to the
proceedings or to materially interfere with its prosecution, the Tenant may
require the Landlord to postpone or to defer the payment of the tax (and
Landlord may require the Tenant to post bond or security to defer the payment)
so long as the Premises would not, in the reasonable opinion of Landlord by
reason of the postponement, be in danger of being forfeited or lost. Any
interest or penalty incurred by reason of the postponement of the payment of
the taxes shall be paid by the Tenant.
5. INTENTIONALLY DELETED.
6. SNOW REMOVAL, PARKING LOT MAINTENANCE, GRASS CUTTING,
LANDSCAPING, SECURITY, 1% MANAGEMENT FEES, COMMON AREA ELECTRIC,
AND OTHER COMMON AREA CHARGES
(a) Tenant covenants to pay Landlord, as additional rental, one
hundred percent (100%) of all reasonable costs incurred for snow removal,
parking lot maintenance, grass cutting, landscaping, security, common area
electric, and other common area charges (collectively, "Common Area Expenses")
during the term of the Lease. The Common Area Expenses shall also include (i)
a management fee ("Management Fee") for Landlord's services in operating and
maintaining the common areas, such fee not to exceed one percent (1%) of the
Basic Rental per year and (ii) fire and extended coverage insurance to be
maintained by Landlord with respect to the Building, rental insurance covering a
period of twelve (12) months and Three Million Dollars ($3,000,000) coverage for
general commercial liability insurance. Notwithstanding the foregoing, the
following items shall be excluded (or as applicable, deducted) from Common Area
Expenses: costs resulting from the correction of any latent construction
defects in all or any portion of the Premises, or any condition that is not in
compliance with applicable laws, codes, rules or regulations; payments of
principal, interest or other payments on any kinds of mortgages or trust deeds
or other liens securing all or any part of the Premises; Landlord's general
overhead and other expenses not related to Premises; legal and professional fees
incurred by Landlord in negotiating and enforcing a ground lease and financing
for the Premises and leases with other tenants; the cost of defending against
claims relating to the existence or release of hazardous substances or materials
at the Premises and cost of cleanup of any such hazardous substances or
materials (except with respect to those costs for which Tenant is otherwise
responsible pursuant to the express terms of this Lease);
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and amounts received by Landlord through proceeds of insurance to the extent
proceeds are compensation for expenses that were previously included in the
Common Area Expenses.
(b) Annual Estimate of Common Area Expenses
No later than thirty (30) days prior to the Phase I
Commencement Date, Landlord shall estimate and notify Tenant in writing of the
amount of Common Area Expenses to be paid by Tenant for the remainder of the
calendar year in which the Phase I Commencement Date occurs. During the
remainder of such calendar year, Tenant shall pay Common Area Expenses to
Landlord based upon such estimate. Such Common Area Expenses shall be payable as
additional rent, in equal monthly installments, in the same manner and together
with Basic Rental.
No later than ninety (90) days after the commencement of each
calendar year after the calendar year in which the Phase I Commencement Date
occurs, Landlord shall estimate and notify Tenant in writing of the amount of
Common Area Expenses to be paid by Tenant for the then-current calendar year.
Within thirty (30) days after Tenant's receipt of such estimate from Landlord,
Tenant shall pay Landlord, as additional rent, an amount equal to the product
obtained by multiplying such estimate by a fraction, the numerator of which
shall be the number of months of such calendar year that will have elapsed prior
to the first day of the month immediately following Tenant's receipt of such
estimate from Landlord, and the denominator of which shall be twelve (12).
Commencing on the first day of the month immediately following Tenant's receipt
of such estimate from Landlord, Common Area Expenses shall be payable as
additional rent, in equal monthly installments equaling 1/12th of such estimate,
in the same manner and together with Basic Rental.
(c) Reconciliation of Common Area Expenses
Between ninety (90) and one hundred twenty (120) days
following the expiration of each calendar year, Landlord shall prepare and
deliver to Tenant an itemized accounting (together with copies of bills and
invoices) of actual Common Area Expenses incurred during the prior calendar year
and such accounting shall reflect Tenant's share of each of such actual Common
Area Expenses and the method of computation thereof. If the additional rent paid
by Tenant under this Section 6 during the preceding calendar year was less than
the actual amount of Tenant's share of Common Area Expenses, Landlord shall so
notify Tenant and Tenant shall pay the difference to Landlord within 30 days
after receipt of such notice. Such amount shall be deemed to have accrued during
the prior calendar year and shall be due and payable from Tenant even though the
term of this Lease shall have expired or this Lease has been terminated prior to
Tenant's receipt of this notice. If the additional rent paid by Tenant under
this Section 6 was greater than the actual amount of Tenant's share of Common
Area Expenses, then the amount of such overpayment shall be credited by Landlord
to all present rent due under this Lease, or refunded to Tenant if no further
rental payments are due Landlord from Tenant under this Lease.
(d) Statements Binding
The statements of Common Area Expenses to be furnished by
Landlord as provided above shall be certified as true and correct by Landlord,
and shall be prepared in
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reasonable detail by Landlord. The statements thus furnished to Tenant shall
constitute a final determination as between Landlord and Tenant of Common Area
Expenses for the periods represented thereby, unless Tenant, within 90 days
after they are furnished, shall give notice to Landlord that it disputes their
accuracy or their appropriateness, which notice shall specify the particular
respects in which the statement is inaccurate or inappropriate. Pending the
resolution of such dispute, Tenant shall pay to Landlord the uncontested portion
of Common Area Expenses. Within thirty (30) days after the resolution of such
dispute, Tenant shall pay to Landlord any deficiency in the amount of Common
Area Expenses previously paid by it to Landlord. Tenant shall have the right,
during reasonable business hours and upon three (3) business days' prior written
notice to Landlord, to examine and/or audit Landlord's books and records with
respect to Common Area Expenses paid or payable by Tenant, and if such
examination reveals that Landlord overstated Common Area Expenses by five
percent (5%) or more, the cost of such examination and/or audit shall be paid
by Landlord.
(e) Common Area Expense Projection
Landlord currently projects that Tenant's share of Common Area
Expenses will equal $11,833.33 per month (excluding utility charges), plus the
monthly share of the Management Fee, for the initial twelve (12) full months of
the Lease term after the Phase I Commencement Date and the Phase II Commencement
Date.
7. UTILITIES
Tenant shall pay for all charges for gas, electricity, light, heat,
all public charges for sanitary sewage discharged from the Premises and for
water consumed on the Premises, power and all other utilities and telephone or
other communication services used, rendered or supplied upon or in connection
with the Premises.
8. LIENS OR ENCUMBRANCES
Tenant shall not suffer the Premises or any erection of improvements
thereon to become subject to any lien, charge or encumbrances, and shall
indemnify Landlord against all such liens, charges and encumbrances.
9. USE OF PREMISES
Tenant shall use and occupy the Premises throughout the term hereof
solely for the purpose of a warehouse and distribution facility, together with
associated offices and other incidental uses related thereto.
10. ALTERATIONS AND IMPROVEMENTS
(a) Upon completion of the Landlord's Work in accordance with
Section 2 hereof, Landlord shall assign to Tenant any warranties relating to
such Landlord's Work to the extent that
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such are given to Landlord by its contractors or subcontractors and shall have
no further obligation to make any alterations or improvements to the Premises
except as provided in Sections 2 and 11(c) hereof.
(b) Tenant further covenants that it will at no time or times make
any alterations, improvements or changes of any kind to the Premises without
first submitting the plans thereof and securing the prior written consent of the
Landlord, which consent shall not be unreasonably withheld or delayed; provided,
however, that Tenant may, at its own option and without having to secure the
consent, written or otherwise of the Landlord,
(1) make any alterations or changes of any kind to the
Premises which may be required by any governmental order or regulation, and, so
long as such alterations or changes are not of a character required to be
performed by Landlord hereunder, such alterations or changes shall, if made by
Tenant, be made, at no expense to Landlord; and
(2) undertake any landscaping or similar work with respect to
the Premises (including the improvements constructed as part of Landlord's
Work) which are of a minor nature and are reasonably necessary to the use by
Tenant of the Premises as contemplated hereunder, provided that such work or
alterations or changes are performed at no cost to Landlord; and
(3) make any alterations or changes of any kind to the
Premises which shall be required to reconfigure machinery and equipment and
perform minor nonstructural alterations.
Landlord acknowledges that Tenant may desire to build a mezzanine
within the Premises. Tenant may build the mezzanine after first submitting the
plans thereof and securing the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed.
All improvements, alterations, replacements and building service
equipment made or installed by or on behalf of Tenant and permanently affixed to
the Building shall immediately upon completion or installment thereof be and
become the property of Landlord without payment therefor by Landlord, but
subject to the provisions of this Lease; provided that all machinery, equipment
(other than building service equipment), trade fixtures, movable partitions,
furniture and furnishings installed by Tenant or maintained on the Premises,
even if permanently affixed thereto, shall remain the property of Tenant, and
Tenant shall, if not in default, be entitled to remove the same or any part
thereof at any time during the Lease term, but Tenant shall, at its expense,
repair any and all damage to the Premises resulting from or caused by such
removal. The interest of Tenant in any property which is not so removed shall at
the end of the time provided for removal thereof vest in Landlord.
11. REPAIRS AND MAINTENANCE
(a) Except as provided in Sections 2 and 11(c), Tenant covenants
throughout the term, at its expense, to maintain in good order and repair the
interior of the Premises, and to maintain and replace when necessary, all window
and door glass therein, interior and exterior; to
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maintain and repair all building service equipment therein including, but not
limited to, electrical, plumbing, heating, air conditioning and sprinkler
equipment, pipes, wires, ducts, fixtures and appliances; to make all ordinary
and necessary repairs to the interior and exterior of the Premises other than
those repairs which Landlord is required to make as set forth in subparagraph
(c) of this Section 11, to keep the Premises in a safe, clean and sanitary
condition; to provide for the removal of trash and rubbish; and to surrender to
Premises at the end of the term in as good condition as when received except for
ordinary wear and use, fire or other unavoidable casualty.
(b) Landlord will provide, at Tenant's expense, for inspection at
least once each calendar quarter, of the heating, air conditioning and
ventilating equipment (which inspection shall encompass the work described on
EXHIBIT E attached hereto and made a part hereof), and provide for necessary
repairs thereto. Landlord will provide Tenant with copies of all service calls
and reports within thirty (30) days after any service call.
(c) Landlord hereby guarantees the quality and condition of the
Premises and all equipment, systems, fixtures and other improvements therein for
a period of one year after the Phase I Commencement Date and Phase II
Commencement Date, as the case may be. Landlord shall, at its sole expense,
cause all repairs, maintenance and replacements to be promptly made in order
to comply with the terms of this guaranty. After the one year warranty period
has expired, Landlord shall also, at Landlord's sole expense, maintain, repair
and replace any such items that were not built or installed in accordance with
all applicable laws and codes at the time of original installation. In addition,
throughout the Lease term. Landlord agrees to perform, at its expense,
maintenance, repair and replacement to the exterior structure of the Building
and the roof, except when such repairs are necessitated by negligence of the
Tenant.
12. TENANT'S INSURANCE
Tenant shall obtain and maintain commercial general liability
insurance in form and substance reasonably satisfactory to Landlord and
Landlord's lender, insuring Landlord against claims for bodily injury or death
occurring in or about the Premises and on, in or about the adjoining driveways
and passageways, to the limit of not less than One Million Dollars
$(1,000,000.00) in respect of bodily injury or death to one person, and to the
limit of not less than Three Million Dollars $(3,000,000.00) in respect of one
accident, and property damage insurance insuring against claims for damage or
injury to property of others occurring in or about the Premises and on, in or
about the adjoining streets and passageways, to the limit of not less than One
Hundred Thousand Dollars $(100,000.00) in respect to damage to the property of
another.
Said policy shall provide that notwithstanding any negligent act of
Tenant which might otherwise result in its forfeiture, the policy shall not be
canceled without at least ten (10) days written notice to each named assured. A
copy of said policy shall be delivered to Landlord.
In the event Tenant's occupancy causes any increase in premiums for
fire and extended coverage insurance or rental insurance on the improvements of
which the Premises are a part above the rate for the least hazardous type of
occupancy legally permitted in the Premises, the Tenant shall pay the additional
premiums by reason thereof. Bills for such additional premiums shall be rendered
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by Landlord to Tenant at such times as Landlord may elect and shall be due from
and payable by Tenant when rendered, and the amount thereof shall be deemed to
be, and be paid as additional rent.
13. DAMAGE OR DESTRUCTION
In the event the Premises or the Building is destroyed or damaged by
fire, earthquake or other casualty covered by the insurance required to be
carried pursuant to Section 6 above, then Landlord shall proceed with reasonable
diligence to rebuild and restore the Premises or such part thereof as may be
damaged. In the event the Premises or the Building are destroyed or injured by
casualty not covered by insurance, or in the event the Building is damaged in
excess of fifty (50%) of the full replacement value thereof, Landlord may,
within forty-five (45) days after such destruction or damage, notify Tenant in
writing of its election to terminate this Lease, in which event this Lease shall
terminate as of the date of such damage (to the extent Tenant shall have already
paid Basic Rental for any time after the date of such termination, Landlord
shall promptly refund such amount to Tenant). Notwithstanding any other
provisions to the contrary, in the event the Premises are damaged to such an
extent so as to require in excess of one hundred twenty (120) days to rebuild or
restore, Tenant may, by notice to Landlord within forty-five (45) days after the
determination of the extent of the damage, terminate this Lease as of the date
of damage (to the extent Tenant shall have already paid Basic Rental for any
time after the date of such termination, Landlord shall promptly refund such
amount to Tenant). In the event this Lease is not terminated pursuant to the
provisions of this Section 13, Landlord shall diligently pursue reconstruction
and during the period of rebuilding and restoration, and Basic Rental
hereunder shall be abated in the same ratio as the portion of the Premises
rendered for the time being unfit for occupancy shall bear to the entire
Premises.
14. COMPLIANCE WITH REGULATIONS, ETC.
Tenant covenants throughout the term at its expense to comply
promptly with all laws, codes, ordinances, administrative and court orders and
directives, rules and regulations which have the force of law, whether now in
effect or hereafter promulgated, applicable to Tenant's use and occupancy of the
Premises, however Tenant shall have the right to contest the applicability
and/or validity of any of the above so long as by reason of such action, the
Premises or the Improvements would not be in danger of forfeiture or loss.
15. CONDEMNATION
(a) If during the term of this Lease, all or a substantial part of
the Premises shall be taken by eminent domain, then at the option of the Tenant
or the Landlord the Lease shall terminate as of, and the rent shall be
apportioned to and abate from and after, the date of taking, and Tenant shall
have no right to participate in any award or damages for such taking (except as
set forth in Section 15(d) hereof) and hereby assigns all of its right, title
and interest therein to Landlord. For purposes of this Section 15, "a
substantial part of the Premises" shall mean a taking which renders Tenant
unable to carry on its business on the Premises.
(b) If during the term of this Lease, less than a substantial part
of the Premises (as
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hereinbefore defined) shall be taken by eminent domain, this Lease shall remain
in full force and effect according to its terms; and Tenant shall have no right
to participate in any award or damages for such taking and hereby assigns all of
its right, title and interest therein to Landlord, provided that Landlord shall
at its expense promptly make such repairs and improvements as shall be necessary
to restore the Premises to substantially the same efficiency as before the
taking.
(c) For the purpose of this Section 15, "taken by eminent domain" or
"taking under the power of eminent domain" shall include a negotiated sale or
lease and transfer of possession to a condemning authority under bona fide
threat of condemnation for public use, and Landlord alone shall have the right
to negotiate with the condemning authority and conduct and settle all litigation
connected with the condemnation. As hereinabove used, the words "award of
damage" shall, in the event of such sale or settlement, include the purchase or
settlement price of any such negotiated transfer.
(d) Nothing herein shall be deemed to prevent Tenant from claiming,
negotiating, and receiving from the condemning authority, if legally payable,
compensation for the taking of Tenant's own tangible property, improvements
upon the leased Premises constructed at Tenant's sole expense, and damages for
Tenant's loss of business, business interruption and/or removal and relocation.
Should the condemnation be affected without a cancellation of the Lease, there
shall be an appropriate reduction in rental commensurate with the area so taken.
16. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
If Tenant shall fail to perform any covenant or duty required of it
by this Lease or by law, Landlord shall, after notice to Tenant and expiration
of the applicable cure period, have the right (but not the duty) to enter the
Premises, if necessary, to perform the same without notice, but the reasonable
cost thereof shall be deemed to be additional rent, and shall give the Landlord
the same rights and remedies as though the additional rent were part of the
monthly rent due the Landlord under this Lease. The provisions of this Section
16 shall not apply to Landlord's indemnification with respect to environmental
matters pursuant to Section 40 hereof.
17. INDEMNIFICATION
(a) Except with respect to claims arising from Landlord's negligence
or that of its agents, servants or employees, Tenant covenants to indemnify and
save Landlord harmless (to the extent not reimbursed by insurance required by
this Lease to be furnished by Tenant) from any and all claims for liability of
any nature whatever arising from any use, occupancy, construction, repairs, or
other work or activity done by Tenant in, on or about the Premises during the
term or from any condition of the Premises or anything thereon or therein during
the term caused by Tenant, or from any occurrence whatever in, on or about the
Premises during the term caused by Tenant, including all Landlord's reasonable
costs, expenses and counsel fees in connection with any such claim.
(b) Except with respect to claims arising from Tenant's negligence
or that of its agents, servants or employees, Landlord covenants to indemnify
and save Tenant harmless (to the extent not reimbursed by insurance required by
this Lease to be furnished by Tenant) from any and
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all claims for liability of any nature whatever arising from any use, occupancy,
construction, repairs or other work or activity done in, on or about the
Premises by Landlord before or during the term or from any condition of the
Premises or anything thereon or therein before or during the term to the extent
not caused by Tenant or from any occurrence whatever in, on or about the
Premises during the Term not caused by Tenant, including all Tenant's reasonable
costs, expenses and counsel fees in connection with any such claim.
(c) If a claim for liabilities is to be made by a party entitled to
indemnification hereunder against the indemnifying party, the party entitled to
such indemnification shall give written notice to the indemnifying party as soon
as practical, but in no event later than thirty (30) days, after the party
entitled to indemnification becomes aware of any fact, condition or event which
may give rise to liabilities for which indemnification may be sought under this
Section 17. If any lawsuit or enforcement action is filed against any party
entitled to the benefit of indemnity hereunder, written notice hereof shall be
given to the indemnifying party as promptly as practicable (and in any event
within thirty (30) days after the service of the citation or summons). After
such notice, if the indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated under the terms
of its indemnity hereunder in connection with such lawsuit or action, then the
indemnifying party shall be entitled, if it so elects, to take control of the
defense and investigation of such lawsuit or action and, with the indemnified
party's consent, which shall not be unreasonably withheld (except where such
settlement might restrict the indemnified party's ability to conduct its
business, in which case such consent may be given or withheld in the indemnified
party's sole discretion), to settle such a lawsuit or action, and to employ and
engage attorneys of its own choice to handle and defend the same, at the
indemnifying party's cost, risk and expense, provided that the indemnifying
party and its counsel shall proceed with diligence and in good faith with
respect thereto. The indemnified party shall cooperate in all reasonable
respects with the indemnifying party and such attorneys in the investigation,
trial and defense of such lawsuit or action and any appeal arising therefrom;
provided, however, that the indemnified party may, at its own cost, participate
in the investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom.
18. [INTENTIONALLY OMITTED]
19. DEFAULT PROVISIONS
In the event Tenant fails to pay any installment of Basic Rental,
additional rent or other sums payable hereunder within five (5) business days
after receipt of written notice from Landlord that such payment is overdue,
Landlord may elect to immediately terminate this Lease, in accordance with
applicable law, by serving a written notice upon Tenant.
In the event of any other event of default of Tenant hereinafter
mentioned in this Section 19, then Landlord may elect to terminate this Lease by
serving a written notice upon Tenant of Landlord's election to terminate this
Lease upon a specified date, not less than thirty (30) days after the day of
serving of such notice. If said event of default shall not be corrected within
said thirty (30) day period, this Lease shall then expire on the date specified,
as if that date had originally
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fixed as the expiration of the term hereinafter granted; provided, however, that
this Lease shall not terminate or expire if Tenant undertakes diligently to
remedy a default within such thirty (30) day period.
Each of the following events shall be deemed an event of default by
Tenant within the meaning of this Section 19:
(a) the failure to pay any installment of Basic Rental or additional
rent within five (5) business days after receipt of written notice from Landlord
that such payment is overdue;
(b) the failure to perform any of the other covenants or conditions
of this Lease on the part of Tenant to be performed;
(c) the making of an assignment by Tenant for the benefit of its
creditors;
(d) the appointment of a receiver or trustee of all or part of
Tenant's property;
(e) the filing of a petition in bankruptcy by Tenant;
(f) the filing of a petition by or against Tenant for its
reorganization or for an arrangement under any bankruptcy law or other law; or
(g) the filing of or petition by Tenant to effect a composition or
an extension of time to pay its debts; provided that if an event referred to in
sections (d) and (f) above shall have been involuntary on the part of Tenant,
the Tenant shall have sixty (60) days to discharge the receiver or trustee or
dismiss the petition after the appointment or filing.
In the event that this Lease is terminated in the manner provided
for in this Section 19, or by court proceedings or otherwise, Landlord or
Landlord's agents, servants or representatives may, at any time after written
notice to Tenant and the times set forth in this Section 19, reenter and resume
possession of said Premises, or any part thereof, and remove all persons and
property therefrom, by any suitable action or proceeding at law, without being
liable for any damages therefor. No reentry by Landlord shall be deemed to be an
acceptance of a surrender of this Lease; and Tenant agrees that in the event
this Lease in accordance with its provisions, is terminated because of Tenant's
default, Landlord's lien in and to this Lease and any improvement on or
hereinafter placed on the premises and on any equity of Tenant in and to any
furnishings, equipment, fixtures or any other personal property, shall forthwith
attach, such lien being granted for the purposes of securing the performance of
Tenant's obligation hereunder.
In case the rent or any installment of said rent hereby agreed to be
paid shall at any time be in default, the Landlord shall have the right to
distrain therefor.
The Landlord, upon the happening of any of the events giving it the
right to annul and cancel this Lease, shall be entitled to the benefit of all of
the provisions of law for the speedy recovery of lands and tenements under this
Lease held over by the Tenant in New Castle County,
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Delaware that are now in force or may hereafter be enacted.
20. ADDITIONAL REMEDIES OF LANDLORD
In the event that this Lease is terminated in the manner set forth
in Section 19 hereof, or by court proceedings or otherwise, Landlord may for its
own account, relet the whole or any portion of said Premises for any period
equal to or greater or less than the remainder of the original term of this
Lease for any sum which it may deem reasonable, to any tenants which it may deem
suitable and satisfactory, and for any use and purposes which it may deem
appropriate, but in no event shall Landlord be under any obligation to relet the
same premises for any purpose which Landlord may regard as injurious to the
Premises, or to any tenant which Landlord, in the exercise of reasonable
discretion shall deem to be objectionable. In the event of such termination of
this Lease, or in the event of any default mentioned in Section 19 hereof, and
whether or not the Premises be relet, and whether this Lease be terminated or
not, Landlord shall be entitled to recover of Tenant, and Tenant hereby agrees
to pay to Landlord as damages, the following:
(a) declare to be immediately due and payable all rent, charges,
payments, costs and expenses herein reserved for the balance of the term of this
Lease.
(b) An amount equal to the amount of the rent reserved under this
Lease, less the rent, if any, collected by Landlord on reletting the Premises,
which shall be due and payable by Tenant to Landlord on the several days on
which the rent herein reserved would have become payable under this Lease.
(c) In addition to the damages hereinbefore provided for in this
Section 20, an amount equal to the cost of
(1) placing the Premises in the condition in which Tenant has
agreed to surrender them to Landlord, and
(2) of performing any other covenant herein contained which
Tenant has agreed to perform, other than the covenant to pay rent.
The damages mentioned in this subdivision (ii) shall become
immediately due and payable by Tenant to Landlord upon the termination of this
Lease.
Without any previous notice or demand, separate actions
may be maintained by Landlord against Tenant from time to time to recover any
damages which, at the commencement of any such action, have then or theretofore
become due and payable to Landlord under this Section 20, without waiting until
the end of the term of this Lease.
(3) In the event of such termination of this Lease, or in the
event of any default mentioned in Section 20 hereof, and whether or not the
premises be relet, and whether this Lease be terminated or not, Landlord
shall, in addition to all other rights and remedies available to it by law or
equity or by any other provisions hereof, be entitled to declare to be
immediately due
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and payable all rent, charges, payments, costs and expenses herein reserved for
the balance of the term of this Lease.
21. RIGHT TO ASSIGN AND SUBLEASE
Tenant may not assign this Lease or sublet the Premises without the
prior written consent of Landlord, which consent will not be unreasonably
withheld or delayed, provided that in the event of any such assignment with
consent, Tenant shall remain liable for the performance of Tenant's obligations
during the term hereof and provided further that one-half (1/2) of any net
rental received by Tenant (after deducting Tenant's costs in effecting such
assignment) in excess of the rent reserved under this Lease or one-half (1/2) of
any net payment made to Tenant in consideration of such assignment shall be paid
over to Landlord as additional rent.
Anything contained herein to the contrary notwithstanding, Landlord
hereby consents to an assignment of this Lease, or a subletting of all or part
of the Premises, to (a) the parent of Tenant or to a wholly-owned subsidiary of
Tenant or of such parent, (b) to any corporation in whom or with which Tenant
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 Tenant on
the date hereof, or (ii) the net worth of Tenant immediately prior to such
merger or consolidation, or (c) to any entity to whom Tenant sells all or
substantially all of its assets, provided that such entity expressly assumes all
of Tenant's obligations hereunder.
22. INSPECTION BY LANDLORD, ETC.
Landlord and its agents shall have the right at all reasonable times
during the term, upon reasonable prior notice (except in the event of an
emergency, in which case Landlord shall attempt, but shall not be required, to
give notice) and during business hours, to enter the Premises for the purpose of
performing the maintenance and repairs required of it by this Lease and for the
purpose of inspecting the same and, during the last one hundred eighty (180)
days of the term, to show both the interior and exterior of the Premises to
prospective tenants or purchasers and to place "For Rent" of "For Sale" signs
thereon.
23. ASSIGNMENT OF LANDLORD'S INTEREST
If Landlord should ever assign this Lease or the rents hereunder to
a creditor as security for a debt, Tenant shall, after notice of such assignment
and upon demand by Landlord or the assignee, pay all sums thereafter becoming
due Landlord hereunder to the assigned (from and after the time Tenant is
furnished with such assignee's address) and furnish such evidence of insurance
coverages required hereunder as the lender may reasonably require so as to
protect the assignee's interest as it may appear and furnish such assurances to
the assignee.
24. ATTORNMENT
In the event the Premises are sold at any foreclosure sale or sales,
by virtue of any judicial proceedings or otherwise, this Lease shall continue in
full force and effect and Tenant agrees
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upon request to attorn to and acknowledge the foreclosure purchaser or
purchasers at such sale as Landlord hereunder.
25. SUBORDINATION
This Lease shall be subject and subordinate to the lien of any
present or future mortgage or mortgages upon the Premises or any property of
which the Premises are a part irrespective of the time of execution or the time
of recording of any such mortgage or mortgages provided that in the event of
foreclosure or other action taken under any mortgage by the holders thereof,
this Lease and the rights of Tenant hereunder shall not be disturbed but shall
continue in full force and effect so long as Tenant shall not be in default
hereunder. The word "mortgage" as used herein includes mortgages, deeds of trust
or other similar instruments and modifications, extensions, renewals and
replacements thereof and any and all advances thereunder. Tenant hereby agrees
to execute such agreement substantially in the same form as EXHIBIT F.
26. MORTGAGEE PROTECTION CLAUSE
Tenant agrees to give any Mortgagees and/or Trust Deed Holders, by
registered mail, a copy of any notice of default served upon the Landlord,
provided that prior to such notice, Tenant has been notified in writing (by way
of Notice of Assignment of Rents and Leases, or otherwise) of the addresses of
such Mortgagees and/or Trust Deed Holders. Tenant further agrees that if
Landlord shall have failed to cure such default, then the Mortgagees and/or
Trust Deed Holders shall have thirty (30) days from the date of receiving notice
within which to cure such default or if such default cannot be cured within that
time, then such additional time as may be necessary if within such thirty (30)
days any Mortgagee and/or Trust Deed Holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not limited
to commencement of foreclosure proceedings if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
27. ATTORNMENT AND NON-DISTURBANCE
The Tenant shall, promptly at the request of the Landlord or the
holder of any Mortgage (herein referred to as "Mortgagee"), execute, enseal,
acknowledge and deliver such further instrument or instruments
(a) evidencing such subordination as the Landlord or such Mortgagee
deems reasonably necessary or desirable, and
(b) (at such Mortgagee's request) attorning to such Mortgagee,
provided that such Mortgagee agrees with the Tenant that such Mortgagee will, in
the event of a foreclosure of any such mortgage or deed of trust (or termination
of any such ground lease), take no action to interfere with the Tenant's right
hereunder, except on the occurrence of an event of default.
28. QUIET ENJOYMENT; NON-DISTURBANCE
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Landlord covenants and warrants to Tenant that Tenant on paying the
rent provided for in this Lease and performing its covenants herein set forth,
shall peaceably and quietly have, hold and enjoy the Premises and all
appurtenances thereon during the full term of this Lease.
29. FAILURE TO INSIST UPON STRICT PERFORMANCE
The failure of either party to insist upon a strict performance of
any of the terms, conditions and covenants herein contained shall not be deemed
a waiver of any rights or remedies that either party may have and shall not be
deemed a waiver of any subsequent breach or default in the terms, conditions and
covenants herein contained. This instrument may not be changed, modified or
discharged orally.
30. TENANT HOLDING OVER
In the event that Tenant holds over at the expiration of the
original term of this Lease or at the earlier termination thereof, Landlord
shall be entitled to all the remedies now or hereafter in effect in New Castle
County, Delaware relating to the speedy recovery of possession of lands and
damages for wrongful detention.
Any holding over after the expiration of the term hereof, without
the written consent of Landlord shall be construed to be a tenancy from month to
month at one and one-half (1-1/2) times the monthly rent hereinbefore specified,
and shall otherwise be on the terms and conditions hereinbefore specified. Such
tenancy from month to month shall continue until either party shall give at
least thirty (30) days notice in writing to the other terminating such tenancy.
31. UTILITY LINES AND FACILITIES
Landlord reserves the right to place in, over, below and upon the
Premises (in such manner as to not interfere with Tenant's use of the Premises),
utility lines, conduits, pipes, tunneling and the like to service the Premises
and any other premises in the warehouse building and to use, replace, repair and
maintain such utility lines, conduits, pipes, tunneling and the like, in, over,
below and upon the Premises in such manner as will not interfere with Tenant's
enjoyment thereof, provided that Landlord shall use its best efforts to see that
such work does not interfere with the ongoing business and operations of Tenant,
that such work shall be done expeditiously and in a workmanlike manner, and
further that the Premises shall, upon conclusion of the work, be restored to
substantially the same conditions as they were prior to the commencement of the
work.
32. SIGNS
Tenant shall not place any signs on the exterior of the Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld.
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33. END OF TERM
Upon the expiration or other termination of the term of this lease,
Tenant shall quit the Premises and surrender same to Landlord, broom clean, in
good order and condition ordinary wear and tear and damage or destruction by
fire or other casualty or the elements or any other cause beyond Tenant's
reasonable control excepted and Tenant shall remove all of its property.
34. SUCCESSORS AND ASSIGNS
Except as hereinabove expressly otherwise provided, this Lease shall
bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
35. NOTICES
All notices to Tenant under this lease shall be conclusively
presumed to have been delivered upon personal or overnight courier delivery or
three business days after mailing by United States mail, first class, certified
or registered, and postage prepaid, addressed to Tenant, at 1516 Second Avenue,
Seattle, WA 98101, Attn: General Counsel, or to such other address as Tenant may
in writing from time to time designate. All notices to Landlord hereunder shall
be conclusively presumed to have been delivered upon personal or overnight
courier delivery or three business days after mailing by United States mail,
first class, certified or registered, and postage prepaid, addressed to
Landlord, at 4001 Kennett Pike, Suite 222, Greenville, DE 19807, Attn.: Paul
McConnell or to such other address as Landlord may in writing from time to time
designate.
36. AGENCY
Landlord and Tenant represent to each other that they have dealt
with no brokers in connection with this transaction other than TC Northeast
Metro, Inc., who represents Tenant (the "Broker"). Landlord shall be responsible
for all commissions and fees due to the Broker. The Broker, any cooperating
broker, and any salesperson working with either, without breaching the fiduciary
responsibilities to Landlord, may, among other services, provide a potential
lessee with information about the attributes of properties and available
financing, show properties, and assist in preparing an offer to lease. The
Broker, any cooperating broker, and any salesperson working with either, also
have the duty to respond accurately and honestly to a potential lessee's
questions and disclose material facts about properties, submit promptly any
offers to lease and offer properties without unlawful discrimination.
37. REVIEW OF LEASE; NON-DISTURBANCE AGREEMENT
Landlord represents to Tenant that Trustees of New Castle Common are
the sole owner in fee simple of the land described in Exhibit B on which the
Building will be built and that Landlord has or will prior to the commencement
of this Lease, enter into a ground lease of the Premises with the Trustees of
New Castle Common. Landlord shall enter into a ground lease of the Premises with
the Trustees of New Castle Common by no later than thirty (30) days after
execution of this Lease, and Landlord shall send a copy of the fully executed
ground lease to Tenant within
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such period. If Landlord does not enter into the ground lease within such time,
Tenant may terminate this Lease at any time within thirty (30) days thereafter.
Landlord shall also obtain from the Trustees of New Castle Common within such
thirty (30) day period a Subordination, Nondisturbance and Attornment Agreement
for Tenant's benefit, substantially in the form of EXHIBIT F and otherwise in
recordable form, executed by the Trustees of New Castle Common, and if Landlord
fails to obtain such agreement, Tenant may terminate this Lease at any time
within thirty (30) days thereafter. Landlord further represents to Tenant that
the only mortgage or trust deed which will encumber the land will be held by PNC
Bank ("Lender") who will be providing construction financing. Landlord
represents that Lender has approved this Lease, and that within thirty (30) days
following the execution of this Lease by both parties, Landlord will deliver to
Tenant a Subordination, Non-Disturbance and Attornment Agreement, substantially
in the form of Exhibit G, executed by Lender. In the event that Landlord should
fail to deliver such agreement to Tenant within such thirty (30) day period,
Tenant shall, upon written notice to Landlord, have the right to terminate this
Lease.
38. RECORDING
Landlord and Tenant agree to execute a Memorandum of Lease which may
be recorded among the Land Records of New Castle County, Delaware, at the
expense of the party offering the Memorandum of Lease for recording.
39. TENANT ESTOPPEL CERTIFICATES
From time to time during the term of this Lease Tenant agrees to
submit to Landlord's lender, within thirty (30) days following written demand
therefor, a certificate substantially in the form attached hereto as EXHIBIT H.
39. CAPTIONS AND HEADINGS
The captions and headings throughout this Lease are for convenience
and reference only, and the words contained therein shall in no way be held or
deemed to define, limit, describe, explain, modify, amplify or add to the
interpretation, construction or meaning of any provision of or the scope or
intent of this Lease nor in any way affect this Lease.
40. ENVIRONMENTAL MATTERS
(a) Tenant represents and warrants that, except for the routine use
of cleaning supplies, packing materials, inks and other materials normally used
in a warehouse, distribution and office facility (all of which shall be used by
Tenant in compliance with laws), the use of the Premises will not result in or
involve the use, generation, manufacture, refining, transportation, treatment,
storage, handling or disposal of, or the conduct or performance of any activity
in connection with any hazardous substance or hazardous waste, as such terms are
defined in the Delaware General Waste Management Act, 7 Del. C., Chapter 60, the
Delaware Hazardous Waste Management Act, 7 Del. C., Chapter 63, the Federal
Resource Sections 6690, et seq., the Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
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<PAGE> 21
U.S.C. Sections 9601, et seq., and the regulations promulgated under said Acts,
which would subject the Premises or Landlord to any liability, including
damages, penalties or fines, or any lien on the Premises under such Acts or
under the Federal common law or the common law of the State of Delaware.
(b) Tenant shall indemnify and hold harmless Landlord, its
directors, officers, shareholders, partners and any of its employees, against
all costs incurred (including, without limitation, amounts paid pursuant to
penalties, fines, orders, judgment or settlements and attorney's fees
originating out of any claim made by Federal, State or local agencies or
departments or private litigants or third parties) with respect to violations or
alleged violations by Tenant, its agents, employees or invitees of environmental
or health laws, rules, regulations, orders or common law, as said laws, etc. are
set forth above or otherwise.
(c) Landlord shall indemnify and hold harmless Tenant, its officers,
shareholders, directors, partners and any of its employees against all costs
incurred (including, without limitation, amounts paid pursuant to penalties,
fines, orders, judgments or settlements and attorneys' fees), arising out of any
claim made by Federal, State or local agencies or departments or private
litigants or third parties with respect to violations by Landlord, its agents,
employees or invitees of environmental or health laws, or regulations, orders or
common law as said laws, etc., are set forth above, or otherwise, except to the
extent such violations or alleged violations are caused by or in whole or in
part related to Tenant or Tenant's use of the Premises. As used herein, Tenant
shall mean and include Tenant and Tenants agents, employees and invitees.
41. JOINT AND SEVERAL LIABILITY
The entities executing this Lease as Landlord shall be jointly and
severally liable for all obligations of the Landlord hereunder.
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WITNESS the execution of this Lease under seal by the parties hereto
as of the date first above written.
LANDLORD:
MCCONNELL DEVELOPMENT, INC.
ATTEST: a Delaware corporation
/s/ HENRY WINCHESTER By: /s/ PAUL M. MCCONNELL
- ------------------------------- -------------------------------(Seal)
Paul M. McConnell
President
700 FRENCHTOWN DEVELOPMENT
CORPORATION, a Delaware corporation
/s/ HENRY WINCHESTER By: /s/ PAUL M. MCCONNELL
- ------------------------------- -------------------------------(Seal)
Paul M. McConnell
President
TENANT:
ATTEST: AMAZON.COM, INC., a Delaware corporation
/s/ LAWRENCE D. BARRETT By: /s/ FERNANDO DUENAS
- ------------------------------- -------------------------------(Seal)
Fernando Duenas
Vice President Operations
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GUARANTEE DEPOSIT BY TENANT
On the Phase I Commencement Date, Tenant shall deposit Thirty-Seven
Thousand Dollars ($37,000.00) with Landlord as security for the full and
faithful performance for each and every item, provision, covenant and condition
of this Lease. On the Phase II Commencement Date, Tenant shall deposit with
Landlord an additional Thirty-Seven Thousand Dollars ($37,000.00). Both deposits
shall collectively be referred to herein as the "Security." In the event Tenant
defaults in respect of any of the terms, provisions, covenants, or conditions of
this Lease, including but not limited to the payment of rent, Landlord may use,
apply or retain the whole or any part of such Security for the payment of any
rent in default or for any other sum which Landlord may spend or be required to
spend by reason of Tenant's default. In the event Landlord applies any part of
said Security to cure any default of Tenant, Tenant shall upon demand deposit
with Landlord the amount so applied so that Landlord shall have the full deposit
on hand at all times during the term of this Lease. Should Tenant faithfully and
fully comply with all of the terms, provisions, covenants and conditions of this
Lease, the Security or any balance thereof shall be returned to Tenant or at the
option of Landlord, to the last assignee of Tenant's interest in this Lease at
the expiration of the term hereof. Landlord shall deposit the Security in a
segregated, interest-bearing trust account. Tenant shall be entitled to all
interest on said Security after deduction of all account maintenance fees which
may be assessed against the account by the financial institution where the
account is located, which interest shall be paid to Tenant upon request, but no
more frequently than annually.
In the event of a sale of the Building, Landlord shall have the
right to transfer the aforesaid Security to the purchaser of the Building or to
Tenant and Landlord shall thereupon be released by Tenant all liability for the
return of said Security; and Tenant agrees to look solely to the new owner of
the Building for the return of said Security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security to a new owner of the Building.
Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as Security and that
neither Landlord nor its successors or assign shall be bound by any such
assignment, encumbrance, attempted assignment, or attempted encumbrance.
LANDLORD: McConnell Development
700 Frenchtown Development
Corporation
By /s/ PAUL MCCONNELL
--------------------------
Name: Paul McConnell
Title: President
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EXHIBIT A
SITE PLAN
1
<PAGE> 25
EXHIBIT B
TENANT APPROVED FLOOR PLAN
APPROVED BY TENANT:
SIGNATURE DATE
2
<PAGE> 26
EXHIBIT C
TENANT IMPROVEMENTS
Tenant shall lease Premises on a "turn-key" basis, in accordance
with mutually acceptable building specifications, which specifically include
(at Landlord's cost):
o Approximately 10,000 square feet of finished office space
o E.S.F.R. rated fire protection sprinkler system (100% wet)
o Nineteen (19) 8' x 10' tailgate dock doors (48"-high), each with
hydraulic levelers (6' x 8', 20,000 lb. minimum capacity) and
Maquire dock shelters
o Installation of Cambridge wall mounted gas fired furnaces (model
CH115AGA). Heating design 60 degrees F @ 0 degrees F 4SHRAE
design.
o 400-watt metal halide fixtures with 25' candle intensity 3'
A.F.F.
o 150 car parking with 50 future spaces available
o One 12' x 14' drive-in door
The building specifications which have been agreed upon by Landlord
and Tenant are identified by reference to the following plans, drawings and
specifications:
o Site Drawings by McBride & Ziegler
Sheet Nos. 1, 2, 3 & 4
dated July 13, 1997
o Architectural Drawings by RHJ Associates
dated August 8, 1997
A-1 through A-10
o Tenant Improvement/Office Drawings
dated 8/21/97
T-1 through T-4
o Structural Drawings by O'Donnell & Naccarato, Inc.
S-1 through S-4
Landlord agrees that it shall not amend, modify or deviate from the approved
plans and specifications without Tenant's prior written consent.
3
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EXHIBIT "D"
SPACE PLAN
4
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EXHIBIT E
The following work will be required in accordance with the
maintenance contract required in Paragraph IIB of the attached Lease:
1. Check performance of all major components.
2. Lubricate moving parts as required.
3. Check refrigerant charges (during cooling season).
4. Inspect for oil and refrigerant leaks.
5. Check operating and safety controls.
6. Check pressures and temperatures.
7. Inspect condensers.
8. Inspect fans, motors, and starters.
9. Tighten electrical connections at equipment.
10. Test amperages and voltages.
11. Check belts and drives.
12. Change oil and filters, or dryers, as required (at least
four times per year).
13. Check temperature on control system.
14. Thoroughly inspect heat exchanger.
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<PAGE> 29
EXHIBIT F
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-disturbance and Attornment ("Agreement") is
made as of the ________ day of _________, 19__, Trustees of New Castle Common
("Ground Lessor") and Amazon.com ("Tenant").
RECITALS
A. Ground Lessor is the owner of the property (the "Property") more
particularly described in EXHIBIT A hereto.
B. Ground Lessor and McConnell Development, Inc. and Frenchtown
Development Corporation (collectively "Landlord"), entered into a ground lease
dated as of _________, 19__, covering the Property (the "Ground Lease").
C. Landlord and Tenant have entered into a lease dated _______, 1997
(the "Lease") pursuant to which Landlord agreed to lease to Tenant and Tenant
agreed to lease from Landlord, the Property and all improvements thereon
(collectively, the "Premises").
D. Tenant wishes to obtain from Ground Lessor assurances that
Tenant's possession of the Premises will not be disturbed in certain
circumstances, and Ground Lessor is willing to provide such assurances to
Tenant, upon and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for $10.00 and other valuable consideration
exchanged between Ground Lessor and Tenant, the receipt and sufficiency of such
consideration being hereby acknowledged, Ground Lessor and Tenant agree as
follows:
1. SUBORDINATION
The Lease is and will remain subject and subordinate in all respects
to the Ground Lease.
2. NON-DISTURBANCE AGREEMENT
As long as Tenant is not in default beyond any applicable grace
period in the payment of rent, additional rent or other charges or in the
performance of any of the terms or conditions of the Lease, Tenant's rights
under the Lease and its possession of the Premises will not be interfered with
or disturbed by Ground Lessor during the term of the Lease (including any
renewal or extension term) following the termination of the Ground Lease as a
result of Landlord's default thereunder.
3. ATTORNMENT AGREEMENT
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<PAGE> 30
If a termination of the Ground Lease occurs, Ground Lessor and
Tenant will be bound to each other, as landlord and tenant, respectively, under
all of the terms and conditions of the Lease for the balance of the term thereof
(including any renewal or extension term), and Tenant hereby attorns to Ground
Lessor as its landlord, such attornment to be effective and self-operative,
without the execution of any other instruments on the part of either party
hereto, immediately upon a termination of the Ground Lease.
4. GROUND LESSOR'S LIABILITY
Notwithstanding any other provision of this Agreement, Ground Lessor
will not in any way be:
(a) liable for acts or omissions of any prior landlord (including
Landlord);
(b) subject to offsets or defenses that Tenant might have had
against any prior landlord (including Landlord);
(c) bound by rent, additional rent or other charges that Tenant
might have paid for more than 30 days in advance to any prior landlord
(including Landlord);
(d) bound by any amendment or modification of the Lease made without
Ground Lessor's prior written consent (except to the extent that the Lease may
specifically contemplate any amendment or modification thereof); or
(e) responsible for money or other security delivered to Landlord
pursuant to the Lease but not subsequently received by Lender.
5. NO LEASE MODIFICATION OR CLAIMS
Tenant hereby confirms that the Lease has not been modified or
amended and is in full force and effect without any claims or default, offset or
deduction by Tenant.
6. TENANT'S RIGHT TO CURE DEFAULT
Notwithstanding any provision of the Lease, no notice by Ground
Lessor to Landlord of any breach or default by Landlord under the Lease will be
effective unless and until
(a) a copy of the notice is received by Tenant, and
(b) a reasonable period of time has elapsed following Tenant's
receipt of such copy, during which period Tenant will have the right, but will
not be obligated, to cure the breach or default.
9. NOTICES
To be effective, any notice or other communication given pursuant to
this Agreement
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<PAGE> 31
must be in writing and sent postpaid by United States registered or certified
mail with return receipt requested. Rejection or other refusal to accept, or
inability to deliver because of changed address of which no notice has been
given, will constitute receipt of the notice or other communication. For
purposes hereof, Ground Lessor's address is:
Attn.:
and Tenant's address is:
Attn.:
At any time(s), each party may change its address for the purposes
hereof by giving the other party a change of address notice in the manner stated
above.
10. Entire Agreement, Etc.
This Agreement (a) is to be construed and enforced in accordance
with the laws of the State of Delaware, (b) contains the entire understanding of
Ground Lessor and Tenant regarding matters dealt with herein (any prior written
or oral agreements between them as to such matters being superseded hereby), (c)
can be modified or waived in whole or in part only by a written instrument
signed on behalf of the party against whom enforcement of the modification or
waiver is sought, and (d) will bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, this Agreement has been duly signed as of the
date first above written.
(The foregoing is signed, witnessed, and notarized on behalf of
Ground Lessor and Tenant.)
8
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EXHIBIT G
9
<PAGE> 33
Tax Parcel I.D. No.
--------------------------
--------------------------
This document prepared by:
PNC Bank, Delaware
222 Delaware Avenue
Wilmington, DE 19801
SUBORDINATION, NON-DISTURBANCE PNC Bank
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"AGREEMENT") is made and entered into as of this ________ day of
______________, _______, by and among PNC BANK, DELAWARE (the "MORTGAGEE"),
with an address at 222 Delaware Avenue, Wilmington, DE 19801, ___________
_________________________________________ (the "LANDLORD"), with an address at
____________________________________________________________________, and
__________________________________________________________ (the "TENANT") with
an address at __________________________________________________;
WITNESSETH THAT:
WHEREAS, the Landlord is the fee owner of that certain real property
located in __________________________, _______________________________ County,
Delaware, and more particularly described in Exhibit "A" attached hereto (the
"PROPERTY"); and
WHEREAS, pursuant to a Loan Agreement or Letter Agreement and/or a
promissory note dated __________________ ________, _______ (collectively, the
"LOAN DOCUMENTS"), the Mortgagee made a loan to the Landlord (or to
_______________________________________________). The obligations under the
Loan Documents are secured by a mortgage instrument covering the Property (the
"MORTGAGE") dated _____________________ ________, _______, from the Landlord to
the Mortgagee, and recorded or to be recorded in the real estate records of the
aforesaid County and State, and are also secured by an assignment of the
Landlord's interest in all leases of the Property (the "ASSIGNMENT") dated
FORM 12F - DE REV. 12/95
<PAGE> 34
_________________ _________, _________, and recorded or to be recorded in the
real estate records of the aforesaid County and State; and
WHEREAS, under the terms of a certain Lease Agreement dated _______________
_______, (the "LEASE"), the Landlord leased to the Tenant all or certain
portions of the Property described in the Lease (the "DEMISED PREMISES") under
the terms and conditions more particularly described therein; and
WHEREAS, the Mortgage provides that the Lease shall be subordinate to the
Mortgage and the parties hereto desire to confirm such subordination and to
establish rights of quiet and peaceful possession for the benefit of the Tenant
under the Lease and to define the terms, covenants and conditions precedent for
such rights.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and intending to be legally bound, the parties hereto agree as
follows:
1. The Lease is and shall be subject and subordinate in all respects to
the Mortgage and the Assignment.
2. Tenant acknowledges notice of and consents to the Mortgage, the
Assignment and the terms and conditions thereof. Tenant agrees to continue
making payments of rent and other amounts owed under the Lease to the Landlord,
and to otherwise recognize the rights of the Landlord under the Lease, until
notified otherwise in writing by the Mortgagee, as herein provided, and after
receipt of such notice the Tenant agrees thereafter to make all such payments
directly to the Mortgagee, as provided in the Mortgage and the Assignment,
without any duty of further inquiry on the part of the Tenant.
3. In the event of any act or omission of the Landlord which would give
the Tenant the right, immediately or after lapse of time, to cancel or
terminate the Lease, or to claim a partial or total eviction or to exercise any
other remedy, the Tenant shall not exercise such right or remedy (a) until it
has given written notice of such act or omission to the Mortgagee; and (b)
until a reasonable period for remedying such act or omission shall have elapsed
following the later of (i) the giving of such notice or (ii) the time when the
Mortgagee shall have become entitled under the Mortgage and the Assignment to
remedy the same (which reasonable period shall in no event be less than the
longer of (x) 30 days or (y) the period to which the Landlord would be
entitled under the Lease or otherwise, after similar notice, to effect such
remedy), provided that the Mortgagee shall give the Tenant written notice of
its intention to, and shall commence and continue with due diligence to, remedy
such act or omission. Notwithstanding the foregoing, the Mortgagee shall have
no obligation to remedy or to continue to remedy any such act or omission.
4. Provided the Lease shall at all times be in full force and effect and
the Tenant shall not be in default thereunder, then:
(a) The right of possession by the Tenant to the Demised Premises and any
or all of the Tenant's rights under the Lease shall not be affected in any way
or disturbed by the Mortgagee (or by anyone claiming by, through or under the
Mortgagee) in the exercise of any of the Mortgagee's rights under the Loan
Documents, the Mortgage or the Assignment, or otherwise by law provided, the
Tenant shall not be named as a party defendant to any foreclosure of the lien
of the Mortgage for the purpose of terminating the Lease, and the Tenant shall
not, by any such foreclosure, be in any other way foreclosed from its rights
under the Lease.
(b) If the Mortgagee or its successors or assigns comes into possession of
the Property (through receivership, as a mortgagee in possession, or otherwise)
or acquires the leasehold interest of the Landlord by foreclosure of the
Mortgage, or by proceedings under the Loan Documents, deed in lieu or
otherwise, the Lease shall not be terminated by any such foreclosure or
proceedings; and the Lease shall continue in full force and effect upon the
Tenant's attornment, as hereinafter provided, as a direct lease between the
Tenant and the Mortgagee upon all the terms, covenants, conditions and
agreements set forth in the Lease.
(c) 4101t0b0s10.25v1P If the Property or the Landlord's leasehold interest
therein is sold or otherwise disposed to any right or power contained in the
Loan Documents or the Mortgage or as a result of proceedings thereon, the Lease
shall not be terminated or affected thereby, and the Foreclosure Purchaser of
the Property or of the Landlord's leasehold interest therein or any person
acquiring title thereto shall so acquire the Property or such interest, subject
to the Lease; and the Lease shall continue in full force and effect upon the
Tenant's attornment,
FORM 12F - DE REV. 12/95
-2-
<PAGE> 35
as hereinafter provided, as a direct lease between the Tenant and any party
acquiring title to the Landlord's leasehold interest therein, as aforesaid,
upon all the terms, covenants, conditions and agreements set forth in the Lease.
5. If the Mortgagee or any Foreclosure Purchaser shall succeed to the
rights of the Landlord under the Lease, then the Tenant shall attorn to and
recognize the Mortgagee or such Foreclosure Purchaser as the Tenant's landlord
under the Lease and the Mortgagee or such Foreclosure Purchaser shall be
conclusively deemed to have accepted such attornment. Such attornment shall be
self-operative and effective without execution and delivery of any further
instrument, immediately upon the Mortgagee's or any Foreclosure Purchaser's
succession to the interest of the Landlord under the Lease. Upon such
attornment the Lease shall continue in full force and effect as a direct lease
between the Mortgagee or such Foreclosure Purchaser and the Tenant except that
the Mortgagee or such Foreclosure Purchaser shall not be bound by any amendment
or modification of the Lease made without the Mortgagee's written consent and
except that the Mortgagee or such Foreclosure Purchaser shall not be liable to
the Tenant:
(a) For any past act, default or omission on the part of the Landlord
under the Lease and the Tenant shall have no right to assert the same or any
damages arising therefrom as an offset or defense against the Mortgagee or such
Foreclosure Purchaser;
(b) For the commencement or completion of any construction or any
contribution toward construction or installation of any improvements upon the
Demised Premises, or any expansion or rehabilitation of existing improvements
thereon, or for restoration of improvements following any casualty not required
to be insured under the Lease or for the costs of any restoration in excess of
the proceeds recovered under any insurance required to be carried under the
Lease; or
(c) For any prepayment of rent, rental security or any other sums
deposited with the Landlord under the Lease and not delivered to the Mortgagee
or such Foreclosure Purchaser.
The Mortgagee or such Foreclosure Purchaser shall be liable to the Tenant under
the Lease only during the Mortgagee's or such Foreclosure Purchaser's period of
ownership, and such liability shall not continue or survive as to the
transferor after a transfer by the Mortgagee or such Foreclosure Purchaser of
its interest in the Lease and the Demised Premises.
6. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be
effective upon receipt if delivered personally, or if sent by facsimile
transmission with confirmation of delivery, or by nationally recognized
overnight courier service, to a party's address set forth above or to such
other address as any party may give to the others in writing for such purpose.
7. No modification, amendment or waiver of any provision of this
Agreement nor consent to any departure therefrom will be effective unless made
in a writing signed by the Mortgagee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
8. This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
9. This Agreement may be signed in any number of counterpart copies
and by the parties hereto on separate counterparts, but all such copies shall
constitute one and the same instrument.
10. As used in this Agreement, the word "Tenant" shall mean the Tenant
and/or the subsequent holder of an interest under the Lease, provided the
interest of such holder is acquired in accordance with the terms and provisions
of the Lease, the word "Mortgagee" shall mean the Mortgagee or any subsequent
holder or holders of the Mortgage and the Assignment, and the word "Foreclosure
Purchaser" shall mean any party other than the Mortgagee acquiring title to the
Property by purchase at a foreclosure sale, by deed or otherwise. Subject to
the foregoing, this Agreement shall bind and inure to the benefit of the
Landlord, the Tenant and the Mortgagee, their heirs, legal representatives,
successors and assigns.
-3-
<PAGE> 36
11. This Agreement has been delivered to and accepted by the Mortgagee and
will be deemed to be made in the State where the Mortgagee's office indicated
above is located. THIS AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE WHERE THE MORTGAGEE'S OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS
CONFLICT OF LAWS RULES, EXCEPT THAT THE REAL PROPERTY LAWS OF THE STATE WHERE
THE DEMISED PREMISES ARE LOCATED (IF DIFFERENT FROM THE STATE WHERE THE
MORTGAGEE IS LOCATED) SHALL GOVERN TO THE EXTENT APPLICABLE.
WITNESS the due execution hereof as a document under seal, as of the date first
written above.
<TABLE>
<S> <C>
WITNESS / ATTEST: MORTGAGEE:
PNC BANK, DELAWARE
By:
- ----------------------------------------------------------------- ----------------------------------------------
(SEAL)
Print Name: Print Name:
------------------------------------------------------ ---------------------------------------
Title:
-------------------------------------------
LANDLORD:
McConnell Development Corporation, Inc.
700 Frenchtown Development Corporation
/s/ HENRY WINCHESTER III By: /s/ PAUL M. McCONNELL
- ----------------------------------------------------------------- ----------------------------------------------
(SEAL)
Print Name: Henry Winchester III Print Name: Paul M. McConnell
------------------------------------------------------ ---------------------------------------
Title: President
-------------------------------------------
TENANT:
------------------------------------------
/s/ LAWRENCE D. BARRETT By: /s/ OSWALDO F. DUENAS
- ----------------------------------------------------------------- ----------------------------------------------
(SEAL)
Print Name: Lawrence D. Barrett Print Name: Oswaldo F. Duenas
------------------------------------------------------ ---------------------------------------
Title: Vice President
-------------------------------------------
</TABLE>
- 4 -
<PAGE> 37
EXHIBIT H
TENANT ESTOPPEL CERTIFICATE
Lessor:
Lessee:
Identification of Leased Premises: Approximately _____-square-feet within a
____________ warehouse and office building on land known as _______________
________________________________________________________________________________
__________________________________________ as more fully set forth in the lease.
Date of Original Lease:
Date(s) of any amendments:
The undersigned, the Tenant named above of the premises
identified above (the "Premises") to induce ____________ (the "Lender")
to make a loan to Landlord hereby certifies to Lender the following:
1. The undersigned has accepted and is in possession of and
occupies the Premises under the Lease, which is in full force and
effect. The initial term of the Lease commenced on 198__.
2. There have been no modifications or changes in the Lease,
except by those amendments listed above.
3. The undersigned is paying the full lease rental, which on the
rental payment due in ___________, 19__ is _________ basic minimum rent
per month, and is also paying its proportionate share (___%) of real
estate taxes, insurance premiums and expenses of snow removal, parking
lot maintenance and grass cutting.
4. No rent or other sum payable under the Lease has been paid
for more than thirty days in advance of its due date.
5. To the knowledge of Tenant, the Landlord is not in default
under the Lease and the undersigned has no defense, setoff or
counterclaim against Landlord under the Lease or otherwise.
6. The undersigned has not assigned, mortgaged or encumbered the
Tenant's interest under the Lease.
7. Tenant acknowledges receipt of notice that all of the
Landlord's interest in the Lease has been assigned to Lender as further
security for one or more loans to Landlord.
10
<PAGE> 38
8. These statements, agreements, representations and acknowledgements
shall bind the undersigned, its successors and assigns and the undersigned shall
deliver a copy hereof to any assignee of its interest in the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Estoppel Certificate
to be duly executed this ___ day of ____________, 19__.
ATTEST:
(Name of Lessee)
By
Name:
Title:
11
<PAGE> 1
1ST AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is made this 16th day of July, 1997 by and
between PACIFIC NORTHWEST GROUP A, a joint venture (the "Landlord"), and
AMAZON.COM, a Delaware corporation (the "Tenant").
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated
September 30, 1996 (the "Lease"), for certain premises located in Building U,
Northwest Corporate Park, Seattle, Washington (the "Premises"), as more fully
described in the Lease; and
WHEREAS, the current term of the Lease expires October 31, 1999 and
Landlord and Tenant desire to extend the term of the Lease, increase the size of
the Premises, adjust the monthly rent, and to modify the Lease accordingly;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby mutually agree as follows:
1. The term of the Lease is hereby extended for a period of one
(1) year commencing November 1, 1999 and terminating October 31, 2000.
2. Effective August 1, 1997 the Premises shall be increased by
approximately 17,040 square feet for a total of 67,460 square feet as outlined
in red on Exhibit A-1 which shall replace and supersede Exhibit A to the Lease
dated September 30, 1996.
3. Effective August 1, 1997 the monthly base rent as provided for
in Paragraph 2 of the Lease, shall be increased to Twenty Five Thousand Three
Hundred Eleven and no/100 Dollars ($25,311.00).
4. Effective November 1, 1997 the monthly base rent as provided
for in Paragraph 2 of the Lease, shall be increased to Twenty Six Thousand
Three Hundred Sixteen and no/100 Dollars ($26,316.00).
5. Effective November 1, 1998 the monthly base rent as provided
for in Paragraph 2 of the Lease, shall be increased to Twenty Seven Thousand
Three Hundred Twenty One and no/100 Dollars ($27,321.00).
6. Landlord hereby acknowledges receipt of the sum of Eight
Thousand Eight Hundred Fifty Nine and no/100 Dollars ($8,859.00) as an
additional security deposit.
7. Landlord agrees to provide to Tenant an Eight Thousand Five
Hundred and no/100 Dollars ($8,500,000) tenant improvement allowance so that
Tenant may complete its improvements to the Premises including but not limited
to certain electrical improvements, provided that Tenant completes tenant
improvements and submitted invoices for the same to the Landlord on or before
December 31, 1997. The following improvements may be added by the Tenant to the
Premises and removed by the Tenant prior to the termination of the Lease, if
Tenant so elects, or upon earlier vacating of the building if required by
Landlord: 1) high intensity ceiling lights and 2) dock levelers which will be
bolted onto the exterior of the building. Upon such removal, Tenant will
restore the Premises to their original condition. Should Tenant not complete
its tenant improvements and/or submit invoices for the same to the Landlord on
or before December 31, 1997, Landlord shall not be required to pay the
$8,500.00 tenant
1
<PAGE> 2
improvement allowance. Prior to Tenant commencing work on these improvements,
Tenant shall submit to Landlord two (2) copies of plans detailing the design
and plan of improvements. Landlord shall either approve or disapprove plans
within five (5) days and, if approved, return a signed, approved copy to
Tenant. In the event that the plans are not approved by Landlord, Landlord
shall inform Tenant of the reasons for such disapproval and Tenant shall have
five (5) days in which to submit revised plans to Landlord for approval, which
approval shall not be unreasonably withheld or delayed. Tenant shall not
unreasonably refuse to satisfy any objections made by Landlord to said plans
and specifications. Any objections Tenant has to Landlord's objection shall be
submitted to Landlord in writing within said five (5) day period. A failure of
one party to give any notice to the other party within such five (5) day period
shall be deemed to constitute approval of the plans and specifications or the
objections thereto, as appropriate.
Upon Landlord's approval of Tenant's plans, Tenant shall promptly enter
into a construction contract with a licensed, bonded contractor. The
construction of all improvements to be made on the Premises shall be performed
in a first-class, workmanlike manner and in conformity with all applicable
governmental laws, ordinances, rules, orders, regulations, and other
requirements. Tenant agrees to promptly pay and discharge all costs, expenses,
claims for damages, liens or lien claims and other liabilities which may arise
in connection with Tenant's construction.
Landlord or Landlord's agents shall have the right to inspect the
construction work being conducted by Tenant during the progress thereof. If
Landlord or Landlord's agents shall give notice of faulty construction or any
other material deviation from the approved working drawings and specifications,
Tenant agrees to cause its contractors or subcontractors to make corrections
promptly. However, neither the privilege herein granted to Landlord or
Landlord's agents to make inspections, nor the making of such inspections by
Landlord or Landlord's agent, shall operate as a waiver of any right of
Landlord to require good and workmanlike construction and improvements erected
in substantial accordance with plans and specifications.
The $8,500.00 for tenant improvements shall include, but not be limited to
contractor's profit which shall not exceed seven percent (7%), construction
costs, construction management fees, permit fees, architectural fees, and
Washington State Sales Tax.
8. Paragraph 36 of the Additional Provisions section of the Lease is
hereby deleted, and is replaced with the following:
Tenant agrees that Tenant shall not use, generate, treat, store or dispose of
Hazardous Material on the Premises or Common Area except in accordance all
laws, ordinances, rules and regulations of all governmental authorities having
jurisdiction of the Premises or Common Area. If Tenant breaches the obligations
stated in the preceding sentence, or if the presence of Hazardous Material on
the Premises or Common Area caused or permitted by Tenant results in
contamination of the Premises or Common Area, then Tenant shall indemnify,
defend and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including without limitation
diminution in value of the Premises or Common Area, damages for the loss or
restriction on the use of rentable or
<PAGE> 3
usable space or of any adverse impact on marketing of space on the Premises or
Common Area, and sums paid in settlement of claims, attorneys' fees, consultant
fees and expert fees) which arise during or after the Lease Term as a result of
such contamination. This indemnification of Landlord by Tenant includes,
without limitation, costs incurred in connection with any investigation of
site conditions or any clean-up, remedial removal or restoration work required
by any federal, state or local governmental agency, political subdivision,
lender or buyer because of Hazardous Material present in the soil or
groundwater on or under the Premises or Common Area, dimunition in value
of the Premises, damages for the loss or restriction on use of rentable or
usable space or of any amenity of the Premises or Common Area, damages arising
from any adverse impact on marketing of space in the building, and sums paid in
settlement of claims, attorneys' fees, consultant fees, laboratory fees and
expert fees. Without limiting the foregoing, if the presence of any Hazardous
Material on the Premises or Common Area caused or permitted by Tenant results
in any contamination of the Premises or Common Area, Tenant shall promptly
take all actions at its sole expense as are necessary to return the Premises or
Common Area to the condition existing prior to the contamination of the
Premises or Common Area by any such Hazardous Material; provided, however, the
Landlord's approval of such action shall first be obtained, which approval
shall not be unreasonably withheld.
Tenant will deliver to Landlord copies of any documents received from, or
sent by Tenant to, the United States Environmental Protection Agency and/or any
state, county or municipal environmental or health agency concerning the
Tenant's operations on the Premises.
As used herein, the term "Hazardous Material" means any substance which is
(i) designated, defined, classified or regulated as a hazardous substance,
hazardous material, hazardous waste, pollutant or contaminant under any
Environmental Law, as currently in effect or as hereafter amended or enacted,
(ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and
all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable
explosives, (vii) infectious materials, or (viii) radioactive materials.
"Environmental Law(s)" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601, et. seq., the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et
seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. 5101, et seq., the Clean
Water Act, 33 U.S.C. Sections 1251, et seq., and the Washington Model Toxics
Control Act, Revised Code of Washington Chapter 70.105D, as said laws have been
supplemented or amended to date, the regulations promulgated pursuant to said
laws and any other federal, state or local law, statute, rule, regulation or
ordinance which regulates or proscribes the use, storage, disposal, presence,
clean-up, transportation or release or threatened release into the environment
of Hazardous Material.
9. Subparagraph 19 E of the Lease is hereby deleted, and is replaced
with the following: Whether or not Landlord retakes possession of or relets the
Premises, Landlord shall have the right to recover unpaid rent and all damages
caused by Tenant's default, including attorneys' fees. Damages shall include,
without limitation: all rentals lost, all legal expenses and other related
costs incurred by Landlord following Tenant's default, all costs incurred by
Landlord in restoring the Premises to good order
<PAGE> 4
and condition, or in remodeling, renovating or otherwise preparing the Premises
for reletting, all costs (including without limitation any brokerage
commissions) incurred by Landlord, plus interest thereon from the date of
expenditure (in the case of a reimbursement owing by Tenant to Landlord
hereunder), or from the date the failure of Tenant to make such payment to
Landlord became a default under subparagraph 18(A) above (in the case of any
installment of rent or other payment owing by Tenant to Landlord hereunder
other than a reimbursement) until fully repaid at the rate of eighteen percent
(18%) per annum.
10. In the event either party requires the services of an attorney in
connection with enforcing the terms of this Lease, or in the event suit is
brought for the recovery of any sums due under this Lease or for the breach of
any covenant or condition of this Lease, or for the restitution of the Premises
to Landlord or eviction of Tenant during said term or after the expiration
thereof, the substantially prevailing party shall be entitled to reasonable
attorneys' fees and all costs incurred in connection therewith, including,
without limitation, the fees of accountants, appraisers and other
professionals, whether at trial, on appeal or without resort to suit.
11. In the event any payment due from Tenant to Landlord is made by a
party other than Tenant, such payment shall be deemed to have been made by and
for the account of Tenant, and the party making such payment shall have no
rights under this Lease.
12. Tenant warrants that all necessary corporate actions have been duly
taken to permit Tenant to enter into this Amendment to Lease and that each
undersigned officer has been duly authorized and instructed to execute this
Amendment to Lease.
13. Except as expressly modified above, all terms and conditions of the
Lease remain in full force and effect and are hereby ratified and confirmed.
LANDLORD: TENANT:
PACIFIC NORTHWEST GROUP A, AMAZON.COM,
a joint venture a Delaware corporation
By: [SIG] By: [SIG]
-------------------------------- -----------------------------------
William G. Williams III
Vice President, Equitable Real Its: Vice-President
Estate Investment Management -----------------------------------
Inc., as Advisor to State of
California Public Employees'
Retirement System, Venturer,
and as Advisor to California
State Teachers' Retirement
System, Venturer
4
<PAGE> 5
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
BE IT REMEMBERED, that on this 17th day of July, 1997, before me, the
undersigned, a Notary Public in and for said County and State, duly
commissioned and sworn, personally appeared OSWALDO F. DUENAS known to me to be
the person who signed as Vice President of Amazon.com, Inc., 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 he/she was
duly elected, qualified and acting as an officer of the corporation, that
he/she was authorized to execute 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 official seal the day
and year first above written.
[NOTARIAL SEAL] /s/ [SIG]
---------------------------------------
Notary Public for State of Washington
Residing at Bellevue
My Commission Expires 3/9/2001
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
THIS IS TO CERTIFY that on this 30th day of July, 1997, before me, the
undersigned, a Notary Public in and for the State of Washington, personally
appeared William G. Williams III, known to me and to me known to be the VICE
PRESIDENT, EQUITABLE REAL ESTATE INVESTMENT MANAGEMENT INC., as Advisor to
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Venturer, and as Advisor to
STATE OF CALIFORNIA TEACHERS' RETIREMENT SYSTEM, Venturer, that executed the
within and foregoing instrument, and acknowledged to me that he was authorized
to sign the same on behalf of such venturers as his free and voluntary act and
deed for the uses and purposes therein mentioned.
WITNESS MY HAND AND NOTARIAL SEAL the day and year first hereinabove
written.
/s/ [SIG]
[NOTARIAL SEAL] ---------------------------------------
NOTARY PUBLIC IN AND FOR WASHINGTON
RESIDING AT Seattle
My commission expires 4-7-98
<PAGE> 6
EXHIBIT A-1
Lease Floor Plan
[Diagram]
<PAGE> 1
2ND AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is made this 11th day of September, 1997 by and
between PACIFIC NORTHWEST GROUP A, a joint venture (the "Landlord"), and
AMAZON.COM, a Delaware corporation (the "Tenant").
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated
September 30, 1996 as amended July 16, 1997 (the "Lease"), for certain premises
located in Building U, Northwest Corporate Park, Seattle, Washington (the
"Premises"), as more fully described in the Lease; and
WHEREAS, the current term of the Lease expires October 31, 2000 and
Landlord and Tenant desire to increase the size of the Premises, adjust the
monthly rent, and to modify the Lease accordingly;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby mutually agree as follows:
1. Upon the termination of a Lease with Elkay Plastics Company at
500 South Brandon St., Seattle, WA, which is expected to be on approximately
February 1, 1998, the Premises will be increased by approximately 17,040 square
feet for a total of 84,500 square feet as outlined in red on Exhibit A-2 which
shall replace and supersede Exhibit A-1 to the First Amendment to Lease and
Exhibit A to the Lease dated September 30, 1996. If the Lease with Elkay
Plastics Company is not terminated prior to February 15, 1998, Tenant, at
Tenant's option may terminate this amendment without penalty.
2. Upon the termination of the Lease with Elkay Plastics Company,
the monthly base rent as provided for in Paragraph 2 of the Lease, shall be
increased to Thirty Three Thousand Four Hundred Seventy Three and no/100 Dollars
($33,473.00).
3. Effective November 1, 1998 the monthly base rent as provided for
in Paragraph 2 of the Lease, shall be increased to Thirty Four Thousand Four
Hundred Eighty Two and no/100 Dollars (34,482.00)
4. Landlord hereby acknowledges receipt of the sum of Eight
Thousand Seven Hundred Sixty Six and no/100 Dollars ($8,766.00) as an
additional security deposit.
5. Landlord agrees to provide to Tenant an Eight Thousand Five
Hundred and no/100 Dollars ($8,500.00) tenant improvement allowance so that
Tenant may complete its improvements to the Premises including but not limited
to certain electrical improvements, provided that Tenant completes tenant
improvements and submitted invoices for the same to the Landlord on or before
May 31, 1998. The following improvements may be added by the Tenant to the
Premises and removed by the Tenant prior to the termination of the Lease, if
Tenant so elects, or upon earlier vacating of the building if required by
Landlord: 1) high intensity ceiling lights and 2) dock levelers which will be
bolted onto the exterior of the building. Upon such removal, Tenant will
restore the Premises to their original condition. Should Tenant not complete
its tenant improvements and/or submit invoices for the same to the Landlord on
or before May 31, 1998, Landlord shall not be required to pay the
$8,500.00 tenant improvement allowance. Prior to Tenant commencing work on
these improvements, Tenant shall submit to Landlord two (2) copies of plans
detailing the design and plan of improvements. Landlord shall either approve or
disapprove plans within five (5) days and, if approved, return a signed,
approved copy to Tenant. In the event that the plans are not approved by
Landlord, Landlord shall inform Tenant of the reasons for such disapproval and
Tenant shall have five (5) days in which to submit revised plans to Landlord
for approval, which approval shall not
1
<PAGE> 2
be unreasonably withheld or delayed. Tenant shall not unreasonably refuse to
satisfy any objections made by Landlord to said plans and specifications. Any
objections Tenant has to Landlord's objection shall be submitted to Landlord in
writing within said five (5) day period. A failure of one party to give any
notice to the other party within such five (5) day period shall be deemed to
constitute approval of the plans and specifications or the objections thereto,
as appropriate.
Upon Landlord's approval of Tenant's plans, Tenant shall promptly enter
into a construction contract with a licensed, bonded contractor. The
construction of all improvements to be made on the Premises shall be performed
in a first-class, workmanlike manner and in conformity with all applicable
governmental laws, ordinances, rules, orders, regulations, and other
requirements. Tenant agrees to promptly pay and discharge all costs, expenses,
claims for damages, liens or lien claims and other liabilities which may arise
in connection with Tenant's construction.
Landlord or Landlord's agents shall have the right to inspect the
construction work being conducted by Tenant during the progress thereof. If
Landlord or Landlord's agents shall give notice of faulty construction or any
other material deviation from the approved working drawings and specifications,
Tenant agrees to cause its contractors or subcontractors to make corrections
promptly. However, neither the privilege herein granted to Landlord or
Landlord's agents to make inspections, nor the making of such inspections by
Landlord or Landlord's agent, shall operate as a waiver of any right of
Landlord to require good and workmanlike construction and improvements erected
in substantial accordance with plans and specifications.
The $8,500.00 for tenant improvements shall include, but not be limited to
contractor's profit which shall not exceed seven percent (7%), construction
costs, construction management fees, permit fees, architectural fees, and
Washington State Sales Tax.
6. In the event any payment due from Tenant to Landlord is made by a
party other than Tenant, such payment shall be deemed to have been made by and
for the account of Tenant, and the party making such payment shall have no
rights under this Lease.
7. Tenant warrants that all necessary corporate actions have been duly
taken to permit Tenant to enter into this Amendment to Lease and that each
undersigned officer has been duly authorized and instructed to execute this
Amendment to Lease.
8. Except as expressly modified above, all terms and conditions of the
Lease remain in full force and effect and are hereby ratified and confirmed.
9. If this agreement is not signed by Landlord within fifteen business
days after signature by Tenant, Tenant, at Tenant's option may terminate this
amendment.
LANDLORD: TENANT:
PACIFIC NORTHWEST GROUP A, AMAZON.COM,
a joint venture a Delaware corporation
By: [SIG] By: [SIG]
-------------------------------------------- ----------------------------
William G. Williams III
Vice President, Equitable Real Estate Its: Vice-President
Investment Management Inc., as Advisor to --------------------------
State of California Public Employees'
Retirement System, Venturer, and
as Advisor to California State
Teachers' Retirement System, Venturer
2
<PAGE> 3
Washington )
STATE OF _________________
)ss
King
COUNTY OF ________________ )
BE IT REMEMBERED, that on this 23rd day of October, 1997, before me, the
undersigned a Notary Public in and for said County and State, duly commissioned
and sworn, personally appeared [Oswaldo F. Duenas] known to me to be the
person who signed as Vice President of Amazon.com, Inc., 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 he/she was duly elected,
qualified and acting as an officer of the corporation, that he/she was
authorized to execute 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 official seal the day
and year first above written.
[SIG]
[SEAL] --------------------------------
Notary Public for Washington
---------------
Residing at Bellevue
--------------------
My Commission Expires 3/9/2001
----------
STATE OF WASHINGTON
)ss
COUNTY OF KING
THIS IS TO CERTIFY that on this 12th day of November,1997, before me, the
undersigned, a Notary Public in and for the State of Washington, personally
appeared William G. Williams III, known to me and to me known to be the Vice
President, Equitable Real Estate Investment Management Inc., as Advisor to
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Venturer, and as Advisor to
STATE OF CALIFORNIA TEACHERS' RETIREMENT SYSTEM, Venturer, that executed the
within and foregoing instrument, and acknowledged to me that he was authorized
to sign the same on behalf of such ventures as his free and voluntary act and
deed for the uses and purposes therein mentioned.
WITNESS MY HAND AND NOTARIAL SEAL the day and year first hereinabove
written.
[SIG]
-----------------------------------
NOTARY PUBLIC IN AND FOR WASHINGTON
RESIDING AT Seattle
-----------------------
My commission expires 4/7/98
-------------
<PAGE> 4
LEASE FLOOR PLAN
[DIAGRAM]
<PAGE> 1
EXHIBIT 11
AMAZON.COM, INC.
COMPUTATION OF NET LOSS PER SHARE
Net loss per share reported in Form 10-Q for the quarters ended September 30,
1997 and 1996 are based on the following (in thousands, except per share data):
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Quarter Ended Nine Months Ended
----------------------------- ----------------------------
September 30, September 30, September 30, September 30,
1997 1996 1997 1996
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net loss $(8,510) $(2,380) $(18,253) $(3,478)
============================= ============================
Weighted average number of common shares
used in computation 23,859 15,605 20,469 15,225
Net effect of stock options exercised and
granted, and preferred stock issued
during the 12-month period prior to the
Company's filing of its initial public
offering at less than the offering
price, calculated using the treasury
stock method at the offering price of
$18 per share, and treated as
outstanding for all periods presented
prior to and through May 15, 1997 - 7,362 3,039 7,325
---------------------------- ----------------------------
Total shares 23,859 22,967 23,508 22,550
============================ ============================
Net loss per share $ (0.36) $ (0.10) $ (0.78) $ (0.15)
============================ ============================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
AMAZON.COM, INC. FORM 10-Q FOR THE PERIOD ENDED SEPTEMBER 30, 1997 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 44,687
<SECURITIES> 3,494
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 2,732
<CURRENT-ASSETS> 52,697
<PP&E> 6,710
<DEPRECIATION> 2,307
<TOTAL-ASSETS> 57,447
<CURRENT-LIABILITIES> 19,848
<BONDS> 0
0
0
<COMMON> 238
<OTHER-SE> 61,458
<TOTAL-LIABILITY-AND-EQUITY> 57,447
<SALES> 81,747
<TOTAL-REVENUES> 81,747
<CGS> 65,826
<TOTAL-COSTS> 65,826
<OTHER-EXPENSES> 35,276
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (18,253)
<INCOME-TAX> 0
<INCOME-CONTINUING> (18,253)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (18,253)
<EPS-PRIMARY> (0.78)
<EPS-DILUTED> (0.78)
</TABLE>
