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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, 1998 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
52,763,055 shares of $0.01 par value common stock outstanding as of
October 31, 1998
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AMAZON.COM, INC.
FORM 10-Q
FOR THE QUARTER ENDED SEPTEMBER 30, 1998
INDEX
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PART I - FINANCIAL INFORMATION PAGE
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Item 1. Financial Statements
Condensed Consolidated Balance Sheets 3
Condensed Consolidated Statements of Operations 4
Condensed Consolidated Statements of Cash Flows 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 9
Item 3. Quantitative and Qualitative Disclosures About Market Risk 20
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 20
Item 2. Changes in Securities and Use of Proceeds 21
Item 3. Defaults Upon Senior Securities 21
Item 4. Submission of Matters to a Vote of Security Holders 21
Item 5. Other Information 22
Item 6. Exhibits and Reports on Form 8-K 22
Signatures 23
</TABLE>
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AMAZON.COM, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
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SEPTEMBER 30, DECEMBER 31,
1998 1997
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(unaudited)
ASSETS
Current assets:
Cash .......................................................... $ 14,856 $ 1,876
Marketable securities ......................................... 322,404 123,499
Inventories ................................................... 19,772 8,971
Prepaid expenses and other .................................... 17,625 3,363
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Total current assets .................................. 374,657 137,709
Fixed assets, net ............................................... 23,821 9,726
Deposits and other .............................................. 582 169
Goodwill and other purchased intangibles, net ................... 213,064 --
Deferred charges ................................................ 7,590 2,240
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Total assets .......................................... $ 619,714 $ 149,844
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable .............................................. $ 60,046 $ 33,027
Accrued advertising ........................................... 11,857 3,454
Other liabilities and accrued expenses ........................ 26,868 6,570
Current portion of long-term debt ............................. 684 1,500
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Total current liabilities ............................. 99,455 44,551
Long-term debt .................................................. 340,392 76,521
Long-term portion of capital lease obligation ................... 103 181
Stockholders' equity:
Preferred stock, $0.01 par value:
Authorized shares -- 10,000,000
Issued and outstanding shares -- none ...................... -- --
Common stock, $0.01 par value:
Authorized shares -- 300,000,000
Issued and outstanding shares -- 52,725,622 and 48,302,958
shares, respectively ....................................... 527 483
Additional paid-in capital .................................... 298,322 67,552
Note receivable from officer for common stock ................. (1,099) --
Deferred compensation ......................................... (2,943) (1,930)
Accumulated other comprehensive income ........................ 590 --
Accumulated deficit ........................................... (115,633) (37,514)
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Total stockholders' equity ............................ 179,764 28,591
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Total liabilities and stockholders' equity ......... $ 619,714 $ 149,844
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</TABLE>
See accompanying notes to condensed consolidated financial statements.
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AMAZON.COM, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
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QUARTER ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
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1998 1997 1998 1997
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Net sales .......................................... $ 153,698 $ 37,887 $ 357,103 $ 81,747
Cost of sales ...................................... 118,823 30,717 276,679 65,842
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Gross profit ....................................... 34,875 7,170 80,424 15,905
Operating expenses:
Marketing and sales ............................. 37,517 11,516 84,522 23,596
Product development ............................. 13,374 3,998 29,526 8,650
General and administrative ...................... 4,978 1,972 10,342 4,930
Merger and acquisition related costs ............ 20,512 -- 25,925 --
------------- ------------- ------------- -------------
Total operating expenses ..................... 76,381 17,486 150,315 37,176
Loss from operations ............................... (41,506) (10,316) (69,891) (21,271)
Interest income .................................... 4,754 688 9,789 1,118
Interest expense ................................... (8,419) (19) (18,017) (59)
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Net interest income (expense) ................ (3,665) 669 (8,228) 1,059
Net loss ........................................... $ (45,171) $ (9,647) $ (78,119) $ (20,212)
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Basic and diluted loss per share ................... $ (0.90) $ (0.21) $ (1.60) $ (0.48)
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Shares used in computation of basic and diluted
loss per share .................................. 50,234 45,865 48,700 42,438
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</TABLE>
See accompanying notes to condensed consolidated financial statements.
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AMAZON.COM, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
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NINE MONTHS ENDED
SEPTEMBER 30,
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1998 1997
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OPERATING ACTIVITIES:
Net loss ..................................................... $ (78,119) $ (20,212)
Adjustments to reconcile net loss to net
cash used in operating activities:
Depreciation and amortization ............................. 30,264 2,076
Amortization of deferred compensation related to stock
options.................................................. 570 993
Noncash interest expense .................................. 15,454 --
Changes in operating assets and liabilities:
Inventories ............................................. (10,784) (2,161)
Prepaid expenses and other .............................. (12,322) (1,486)
Deposits and other ...................................... (206) (202)
Accounts payable ........................................ 25,447 12,803
Accrued advertising ..................................... 8,403 (598)
Other liabilities and accrued expenses .................. 13,630 3,258
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Net cash used in operating activities ................. (7,663) (5,529)
INVESTING ACTIVITIES:
Maturities of marketable securities .......................... 117,669 4,311
Purchases of marketable securities ........................... (315,608) (45,875)
Purchases of fixed assets .................................... (18,779) (4,396)
Acquisitions of businesses ................................... (14,374) --
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Net cash used in investing activities ................. (231,092) (45,960)
FINANCING ACTIVITIES:
Proceeds from initial public offering ........................ -- 49,103
Proceeds from exercise of stock options ...................... 2,964 474
Proceeds from issuance of capital stock ...................... 8,361 2,758
Proceeds from debt ........................................... 325,987 --
Repayment of debt ............................................ (77,383) (7)
Financing costs related to debt issuance ..................... (7,783) (22)
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Net cash provided by financing activities ............. 252,146 52,306
Effect of exchange rate changes ................................. (411) --
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Net increase in cash ............................................ 12,980 817
Cash at beginning of period ..................................... 1,876 865
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Cash at end of period ........................................... $ 14,856 $ 1,682
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SUPPLEMENTAL CASH FLOW INFORMATION:
Common stock issued for fixed assets and accrued product
development ................................................... $ -- $ 1,500
Fixed assets acquired under capital lease ....................... $ -- $ 442
Common stock issued in connection with acquisitions ............. $ 217,241 $ --
</TABLE>
See accompanying notes to condensed consolidated financial statements.
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AMAZON.COM, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - ACCOUNTING POLICIES
Description of Business
Amazon.com, Inc. ("Amazon.com" or the "Company") was incorporated on July 5,
1994. The Company is the leading online retailer of books and music and offers a
catalog of over three million titles, easy-to-use search and locate features,
personalized recommendations, secure credit card payment, streamlined ordering
and direct shipping to customers.
Basis of Presentation
The accompanying condensed consolidated financial statements as of and for the
period ended September 30, 1998 and 1997 have been prepared by the Company in
accordance with generally accepted accounting principles and pursuant to the
rules and regulations of the Securities and Exchange Commission (the "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 condensed
consolidated balance sheet at December 31, 1997 has been derived from the
audited financial statements at that date. Certain information and footnote
disclosures normally included in consolidated financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to such SEC rules and regulations, although the Company
believes that the disclosures in these condensed consolidated financial
statements are adequate to make the information presented not misleading.
Operating results for the quarter ended September 30, 1998 are not necessarily
indicative of the results that may be expected for the year ending December 31,
1998. These condensed consolidated financial statements should be read in
conjunction with the audited consolidated financial statements and the
accompanying notes included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997, as amended by the Company's Current Report on Form
8-K dated August 27, 1998, filed September 11, 1998. Certain prior period
amounts have been reclassified to conform to the current period presentation.
Principles of Consolidation
The condensed consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiaries. All significant intercompany balances
and transactions have been eliminated.
Marketable Securities
The Company's marketable securities consist primarily of high-quality short to
intermediate term fixed income securities and money market mutual funds, are
classified as available-for-sale and are reported at fair value. Unrealized
gains and losses are reported, net of taxes, as a component of stockholders'
equity within accumulated other comprehensive income. Unrealized losses are
charged against income when a decline in fair value is determined to be other
than temporary. The specific identification method is used to determine the cost
of securities sold. The Company classifies all investments of cash as marketable
securities, including highly liquid investments with maturities of three months
or less, and reflects the related cash flows as investing cash flows. As a
result of the classification of highly liquid investments within marketable
securities, a significant portion of the Company's gross marketable securities
purchases and maturities disclosed as investing cash flows is related to highly
liquid investments.
Deferred Charges
In May 1998, the Company issued approximately $326 million gross proceeds of 10%
Senior Discount Notes due 2008 (the "Senior Discount Notes"). At September 30,
1998, deferred charges consisted of fees associated with the issuance of the
Senior Discount Notes. The fees are being amortized into interest expense over
the life of the Senior Discount Notes.
Goodwill and Other Purchased Intangibles
Goodwill and other purchased intangibles is stated net of total accumulated
amortization of $21.6 million at September 30, 1998. Goodwill and substantially
all other purchased intangibles are being amortized on a straight-line basis
over lives ranging from two to three years.
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Foreign Currency
The functional currency of the Company's foreign subsidiaries is the local
currency. Assets, liabilities, revenues and expenses of the foreign subsidiaries
are translated into U.S. dollars at period end exchange rates. Translation
adjustments are included in accumulated other comprehensive income, a separate
component of stockholders' equity. Transaction gains and losses arising from
transactions denominated in a currency other than the functional currency of the
entity involved, which have been insignificant, are included in the condensed
consolidated statements of operations. To date the Company has entered into no
foreign currency exchange contracts or other such derivative instruments.
Recent Pronouncements
As of January 1, 1998, the Company adopted Statement of Financial Accounting
Standards ("SFAS") No. 131, Disclosures about Segments of an Enterprise and
Related Information. The adoption of this Statement had no material impact on
the Company's net loss or stockholders' equity.
NOTE 2 - BUSINESS COMBINATIONS
In April 1998, the Company acquired three Internet companies: Bookpages Limited
("Bookpages"), Telebook, Inc. ("Telebook") and Internet Movie Database Limited
("IMDB"). Bookpages and Telebook are online booksellers. Bookpages has
operations in the United Kingdom and Telebook has operations primarily in
Germany through a wholly-owned subsidiary. IMDB operates a comprehensive
authoritative source of information on movies and entertainment programs on the
Internet. Each of the acquisitions was accounted for under the purchase method
of accounting. The aggregate purchase price of the three acquisitions, plus
related charges, was approximately $55 million. The consideration for the
acquisitions was comprised of common stock and cash. The Company issued an
aggregate of approximately 1.1 million shares of common stock to effect the
transactions. The excess of the purchase price over the fair value of net assets
acquired is included in goodwill and other purchased intangibles in the
accompanying condensed consolidated balance sheets and is being amortized over
two years. The results of operations of the acquired companies are included in
the Company's condensed consolidated financial results beginning on the date of
acquisition.
The pro forma combined condensed consolidated financial information for the nine
months ended September 30, 1998 and 1997, as though the Bookpages, Telebook and
IMDB acquisitions had occurred on January 1 of each year, would have resulted in
net sales of $360.6 million and $86.7 million, net loss of $86.7 million and
$41.9 million, and basic and diluted loss per share of $1.78 and $0.96,
respectively. The pro forma net loss includes amortization of goodwill and other
purchased intangibles of $21.4 million for the nine months ended September 30,
1998 and 1997. This unaudited pro forma combined condensed consolidated
financial information is presented for illustrative purposes only and is not
necessarily indicative of the condensed consolidated results of operations in
future periods or the results that actually would have been realized had
Amazon.com and the acquired companies been a combined company during the
specified periods.
In August 1998, the Company acquired 100 percent of the outstanding capital
stock of Junglee Corp. ("Junglee"). Junglee is a leading provider of advanced
Web-based virtual database technology that can help shoppers find and discover
products on the Internet. The Company issued approximately 1.6 million shares of
common stock and assumed all outstanding options and warrants in connection with
the acquisition of Junglee. The Junglee acquisition was accounted for under the
purchase method of accounting, with substantially all of the approximately $180
million purchase price allocated to goodwill and other purchased intangibles.
The goodwill and substantially all other purchased intangible assets in the
accompanying condensed consolidated balance sheets are being amortized on a
straight-line basis over lives averaging approximately three years. The results
of operations of the acquired company are included in the Company's condensed
consolidated financial results beginning on the date of acquisition.
The pro forma combined condensed consolidated financial information for the nine
months ended September 30, 1998 and 1997, as though the Junglee acquisition had
occurred on January 1 of each year, would have resulted in net sales of $358.7
million and $82.7 million, net loss of $127.0 million and $66.6 million, and
basic and diluted loss per share of $2.54 and $1.51, respectively. The pro forma
net loss includes amortization of goodwill and other purchased intangibles of
$43.8 million for the nine months ended September 30, 1998 and 1997. This
unaudited pro forma combined condensed consolidated financial information is
presented for illustrative purposes only and is not necessarily indicative of
the condensed consolidated results of operations in future periods or the
results that actually would have been realized had Amazon.com and Junglee been a
combined company during the specified periods.
In August 1998, the Company acquired 100 percent of the outstanding capital
stock of Sage Enterprises, Inc. ("PlanetAll"). PlanetAll, based in Boston,
Massachusetts, provides a Web-based address book, calendar and reminder service.
The
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Company issued approximately 800,000 shares of common stock and assumed all
outstanding options in connection with the acquisition of PlanetAll. The
PlanetAll acquisition was accounted for as a pooling of interests and, as a
result, the Company's condensed consolidated financial statements have been
restated for all periods presented. The historical results of the pooled
entities reflect each of their actual operating cost structures and, as a
result, do not necessarily reflect the cost structure of the newly combined
entity. The historical results do not purport to be indicative of results which
may occur in the future.
Net sales for PlanetAll were not significant and net loss was $4.1 million and
$2.0 million for the nine months ended September 30, 1998 and 1997,
respectively. There were no significant intercompany transactions between the
two companies and no significant conforming accounting adjustments.
NOTE 3 - DEBT
In May 1998, the Company completed the offering of approximately $326 million
gross proceeds of the Senior Discount Notes due May 1, 2008. Pursuant
to a registration statement on Form S-4, in September 1998 the Company
completed an exchange offer of 10% Senior Discount Notes due 2008 (the
"Exchange Notes") which are registered under the Securities Act of 1933, as
amended, for all outstanding Senior Discount Notes. The Exchange Notes have
identical terms in all material respects to the terms of the original Senior
Discount Notes, except that the Exchange Notes generally are freely
transferable (the Exchange Notes are referred to throughout these notes to
condensed consolidated financial statements interchangeably with the Senior
Discount Notes). The Exchange Notes were issued under the indenture governing
the original Senior Discount Notes (the "Indenture"). The Senior Discount Notes
were sold at a substantial discount from their principal amount at maturity of
$530 million. Prior to November 1, 2003, no cash interest payments are
required; instead, interest will accrete during this period to the $530 million
aggregate principal amount at maturity. From and after May 1, 2003, the Senior
Discount Notes will bear interest at a rate of 10% per annum payable in cash on
each May 1 and November 1.
The Senior Discount Notes are redeemable, at the option of the Company, in whole
or in part, at any time on or after May 1, 2003, at the redemption prices set
forth in the Indenture, plus accrued interest, if any, to the date of
redemption. At any time prior to May 1, 2001, the Company also may redeem up to
35% of the aggregate principal amount at maturity of the Senior Discount Notes
with the proceeds of one or more sales of Capital Stock (as defined in the
Indenture) (other than Disqualified Stock (as defined in the Indenture)), at 110
% of their Accreted Value (as defined in the Indenture) on the redemption date,
plus accrued interest, if any, to the date of redemption; provided that after
any such redemption at least 65% of the aggregate principal amount at maturity
of Senior Discount Notes originally issued remains outstanding. In addition, at
any time prior to May 1, 2003, the Company may redeem all, but not less than
all, of the Senior Discount Notes at a redemption price equal to the sum of (i)
the Accreted Value (as defined in the Indenture) on the redemption date, plus
(ii) accrued interest, if any, to the redemption date, plus (iii) the Applicable
Premium (as defined in the Indenture).
Upon a Change of Control (as defined in the Indenture), the Company would be
required to make an offer to purchase the Senior Discount Notes at a purchase
price equal to 101% of their Accreted Value on the date of purchase, plus
accrued interest, if any. There can be no assurance that the Company would have
sufficient funds available at the time of any Change of Control to make any
required debt repayment (including repurchases of the Senior Discount Notes).
The Senior Discount Notes are senior unsecured indebtedness of the Company
ranking pari passu with the Company's existing and future unsubordinated,
unsecured indebtedness and senior in right of payment to all subordinated
indebtedness of the Company. The Senior Discount Notes are effectively
subordinated to all secured indebtedness and to all existing and future
liabilities of the Company's subsidiaries.
The Indenture contains certain covenants that, among other things, limit the
ability of the Company and its Restricted Subsidiaries (as defined in the
Indenture) to incur indebtedness, pay dividends, prepay subordinated
indebtedness, repurchase capital stock, make investments, create liens, engage
in transactions with stockholders and affiliates, sell assets and engage in
mergers and consolidations. However, these limitations are subject to a number
of important qualifications and exceptions.
A portion of the net proceeds from the offering of the Senior Discount Notes has
been used to retire approximately $75 million of indebtedness outstanding as of
December 31, 1997.
NOTE 4 - STOCKHOLDERS' EQUITY
In June 1998, the Company effected a two-for-one stock split in the form of a
stock dividend to stockholders of record on May 20, 1998. Accordingly, the
accompanying condensed consolidated financial statements have been restated to
reflect the split.
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In June 1998, the Company increased the number of authorized shares of common
stock, par value $0.01 per share, from 100 million shares to 300 million shares.
NOTE 5 - COMPREHENSIVE INCOME (LOSS)
As of January 1, 1998, the Company adopted SFAS No. 130, "Reporting
Comprehensive Income." SFAS No. 130 established standards for the reporting and
display of comprehensive income and its components in the financial statements.
The adoption of SFAS No. 130 had no impact on the Company's net loss or
stockholders' equity. For the quarter and nine months ended September 30, 1998,
comprehensive loss was $44.5 million and $77.5 million, respectively. The
difference between net loss and comprehensive loss for each period presented is
due to unrealized gains or losses on marketable securities classified as
available-for-sale and foreign currency translation adjustments. The Company had
no comprehensive income items in fiscal year 1997.
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 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, liquidity and
capital resources, as well as other statements, including, but not limited to,
words such as "anticipate," "believe," "plan," "estimate," "expect," "seek" 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 annual report on Form 10-K for the
year ended December 31, 1997, as amended by the Company's Current Report on Form
8-K dated August 27, 1998, filed September 11, 1998. 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
and retail book and music industries and the risks associated with capacity
constraints, systems development, management of growth, acquisitions, any new
products and international or domestic business expansion. 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 Securities and
Exchange Commission (the "SEC").
OVERVIEW
Amazon.com is the leading online retailer of books and music. The Company also
sells videotapes, audiotapes and other products. 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,
competition and the management of growth. To address these risks, the Company
must, among other things, maintain and increase its customer base, implement and
successfully execute its business and marketing strategy and its expansion into
new product or geographic markets, effectively manage and integrate acquisitions
and other business combinations, 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, 1998, had an accumulated deficit of $115.6 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
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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 resulted in relatively low product gross margins.
As a result, achieving profitability given planned investment levels depends on
the Company's ability to generate and sustain substantially increased revenue
levels. In addition, amounts associated with the Company's recent acquisitions,
including amortization of goodwill and other purchased intangibles and ongoing
operating expenses of those companies, as well as interest expense related to
the Senior Discount Notes (as defined below) will further affect the Company's
operating results. As a result of the foregoing factors, the Company believes
that it will continue to incur substantial consolidated 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, purchasing, 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 recently announced
acquisitions that will result in the Company's incurring significant charges,
including amortization of goodwill and other purchased intangibles and ongoing
operating expenses of the acquired companies.
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, among others, (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 acquire product, to
maintain appropriate inventory levels and to manage fulfillment operations,
(iii) the Company's ability to maintain gross margins in its existing business
and in future product lines and markets, (iv) the development, announcement or
introduction of new sites, services and products by the Company and its
competitors, (v) price competition or higher wholesale prices in the industry,
(vi) 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 products such as those offered by the Company, (vii) the Company's ability to
upgrade and develop its systems and infrastructure, (viii) the Company's ability
to attract new personnel in a timely and effective manner, (ix) the level of
traffic on the Company's Web site, (x) the Company's ability to manage
effectively its development of new business segments and markets, (xi) the
Company's ability to successfully manage the integration of operations and
technology of acquisitions and other business combinations, (xii) technical
difficulties, system downtime or Internet brownouts, (xiii) the amount and
timing of operating costs and capital expenditures relating to expansion of the
Company's business, operations and infrastructure, (xiv) the number of popular
books, music selections and other products introduced during the period, (xv)
the level of merchandise returns experienced by the Company, (xvi) governmental
regulation and taxation policies, (xvii) disruptions in service by common
carriers due to strikes or otherwise, and (xviii) general economic conditions
and economic conditions specific to the Internet, online commerce and the book
and music industries.
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 and music industries are generally significantly higher
in the fourth calendar quarter of each year.
Due to the foregoing factors, in one or more future quarters the Company's
operating results may fall below the expectations of securities analysts or
investors. In such event, the trading price of the common stock would likely be
materially adversely affected.
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RECENT EVENTS
In April 1998, the Company acquired three Internet companies: Bookpages Limited
("Bookpages"), Telebook, Inc. ("Telebook") and Internet Movie Database Limited
("IMDB"). Bookpages and Telebook are online booksellers. Bookpages has
operations in the United Kingdom and Telebook has operations primarily in
Germany through a wholly-owned subsidiary. IMDB operates a comprehensive
authoritative source of information on movies and entertainment programs on the
Internet. Each of the acquisitions was accounted for under the purchase method
of accounting. The aggregate purchase price of the three acquisitions, plus
related charges, was approximately $55 million. The consideration for the
acquisitions was comprised of common stock and cash. The Company issued an
aggregate of approximately 1.1 million shares of common stock to effect the
transactions. The Company will amortize the goodwill resulting from the
acquisitions over two years.
In August 1998, the Company acquired 100 percent of the outstanding capital
stock of Junglee Corp. ("Junglee"). Junglee is a leading provider of advanced
Web-based virtual database technology that can help shoppers find and discover
products on the Internet. The Company issued approximately 1.6 million shares of
common stock and assumed all outstanding options and warrants in connection with
the acquisition of Junglee. The Junglee acquisition was accounted for under the
purchase method of accounting, with substantially all of the approximately $180
million purchase price allocated to goodwill and other purchased intangibles.
The goodwill and substantially all other purchased intangible assets is being
amortized on a straight-line basis over lives averaging approximately three
years.
In August 1998, the Company acquired 100 percent of the outstanding capital
stock of Sage Enterprises, Inc. ("PlanetAll"). PlanetAll, based in Boston,
Massachusetts, provides a Web-based address book, calendar and reminder service.
The Company issued approximately 800,000 shares of common stock and assumed all
outstanding options in connection with the acquisition of PlanetAll. The
PlanetAll acquisition was accounted for as a pooling of interests and, as a
result, the Company's condensed consolidated financial statements have been
restated for all periods presented.
These entities are currently incurring operating losses. The Company intends to
increase spending in product development, marketing and sales, and general and
administrative activities for the acquired companies, and expects that such
expenses, combined with amortization of goodwill and other purchased
intangibles, will significantly exceed revenues generated by these entities for
the foreseeable future.
In October 1998, the Company formally entered the European market with the
launch of new stores in Germany and the United Kingdom. Amazon.de and
Amazon.co.uk replaced sites once operated by Telebook in Germany and Bookpages
in the United Kingdom.
PRO FORMA RESULTS OF OPERATIONS
Pro forma information regarding the Company's results excluding merger and
acquisition related costs is as follows:
<TABLE>
<CAPTION>
Quarter Nine Months
Ended Ended
September 30, September 30,
1998 1998
------------- -------------
<S> <C> <C>
Pro forma loss from operations ................................... $ (20,994) $ (43,966)
Pro forma net loss ............................................... $ (24,659) $ (52,194)
Pro forma basic and diluted loss per share ....................... $ (0.49) $ (1.07)
Shares used in computation of basic and diluted loss per share ... 50,234 48,700
</TABLE>
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RESULTS OF OPERATIONS
Net Sales
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
----------------------------------------------- ----------------------------------------------
1998 1997 % Change 1998 1997 % Change
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
(in thousands) (in thousands)
Net sales .................... $ 153,698 $ 37,877 306% $ 357,103 $ 81,747 337%
</TABLE>
Net sales are composed of the selling price of books, music 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 growth of the Company's customer base and repeat purchases
from the Company's existing customers and, to a smaller extent, increased sales
of music. Music sales totaled $14.4 million for the quarter ended September 30,
1998. This increase was partially offset by a decrease in prices effected in
June 1997. International sales represented 20% and 26% of net sales for the
quarters ended September 30, 1998 and 1997, respectively, and 21% and 27% of net
sales for the nine months ended September 30, 1998 and 1997, respectively.
Gross Profit
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
----------------------------------------------- ----------------------------------------------
1998 1997 % Change 1998 1997 % Change
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
(in thousands) (in thousands)
Gross profit............... $ 34,875 $ 7,170 386% $ 80,424 $ 15,905 406%
Gross margin............... 22.7% 18.9% 22.5% 19.5%
</TABLE>
Gross profit consists of sales less the 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. Gross margin increased as a result of improvements in product
costs through improved supply chain management, including increased direct
purchasing from publishers, as well as higher overall shipping margins, which
together more than offset the impact of lower prices and lower music margins.
The Company believes that offering its customers attractive prices is an
essential component of its business strategy. Accordingly, the Company offers
everyday discounts of up to 40% on hundreds of thousands of titles and certain
"special value" editions discounted up to 85%. 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.
The Company over time intends to expand its operations by promoting new or
complementary products or sales formats and by expanding the breadth and depth
of its product and service offerings. Gross margins attributable to new business
areas may be lower than those associated with the Company's existing business
activities. In particular, in June 1998 the Company launched its new music store
and has announced plans to launch a video store. Music and video gross margins
are lower than book gross margin. To the extent music or video becomes a larger
portion of the Company's product mix, it is expected to have a proportionate
impact on overall product gross margin.
Marketing and Sales
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
----------------------------------------------- ----------------------------------------------
1998 1997 % Change 1998 1997 % Change
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
(in thousands) (in thousands)
Marketing and sales........ $ 37,517 $ 11,516 226% $ 84,522 $ 23,596 258%
Percentage of net sales.... 24.4% 30.4% 23.7% 28.9%
</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. All
fulfillment costs not included in cost of sales, including the cost of operating
and staffing distribution centers and customer service, are included in
marketing and sales. Marketing and sales expenses increased primarily due to
increases in the Company's advertising and
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promotional expenditures, increased payroll and related costs associated with
fulfilling customer demand and increased credit card fees resulting from higher
sales, as well as increased marketing and sales activities associated with the
entry into music sales, the launch of new stores in Germany and the United
Kingdom and the acquired entities. 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 primarily on anticipated sales
growth. In addition, the Company intends to increase investments in marketing,
promotion and fulfillment activities related to its product and international
expansion, as well as in marketing and sales activities of Junglee and
PlanetAll. As a result of the foregoing, the Company expects marketing and sales
expenses to increase significantly in absolute dollars.
Product Development
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
----------------------------------------------- ----------------------------------------------
1998 1997 % Change 1998 1997 % Change
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
(in thousands) (in thousands)
Product development........ $ 13,374 $ 3,998 235% $ 29,526 $ 8,650 241%
Percentage of net sales.... 8.7% 10.6% 8.3% 10.6%
</TABLE>
Product development expenses consist principally of payroll and related expenses
for development, editorial, systems and telecommunications operations personnel
and consultants, as well as systems and telecommunications infrastructure, and
costs of acquired content partially attributable to the recent entry into music
sales. 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 increases included investments associated with the entry
into music sales, the launch of new stores in Germany and the United Kingdom and
operating expenses associated with the acquired entities. Product development
expenses decreased 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. In addition to ongoing
investments in its Web store and infrastructure, the Company intends to increase
investments in product and international expansion, as well as product
development activities of Junglee and PlanetAll. As a result, the Company
expects product development expenses to increase significantly in absolute
dollars.
General and Administrative
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
----------------------------------------------- ----------------------------------------------
1998 1997 % Change 1998 1997 % Change
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
(in thousands) (in thousands)
General and administrative.. $ 4,978 $ 1,972 152% $ 10,342 $ 4,930 110%
Percentage of net sales..... 3.2% 5.2% 2.9% 6.0%
</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 a result of increased salaries and related
expenses associated with the hiring of additional personnel, expenses associated
with acquired entities, and legal and other professional fees related to the
Company's growth, international expansion and expanded activities. 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, including investments associated with
product and international expansion and the operations of Junglee and PlanetAll.
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Merger and Acquisition Related Costs
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
----------------------------------------------- ----------------------------------------------
1998 1997 % Change 1998 1997 % Change
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Merger and acquisition (in thousands) (in thousands)
related costs.............. $ 20,512 - N/A $ 25,925 - N/A
Percentage of net sales.... 13.3% - 7.3% -
</TABLE>
Merger and acquisition related costs primarily consist of amortization of
goodwill and other purchased intangibles incurred in connection with the
Company's April 1998 acquisitions of Bookpages, Telebook and IMDB and the August
1998 acquisition of Junglee. See " - Recent Events." Each of these acquisitions
was accounted for under the purchase method of accounting. The Company
anticipates that future amortization associated with these four acquisitions
will increase net loss by approximately $22 million per quarter until March 2000
and approximately $15 million thereafter until the related goodwill and other
purchased intangibles are fully amortized. Any subsequent acquisitions or
impairment of goodwill and other purchased intangibles could result in
additional merger and acquisition related costs.
Interest Income and Expense
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
----------------------------------------------- ----------------------------------------------
1998 1997 % Change 1998 1997 % Change
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
(in thousands) (in thousands)
Interest income............ $ 4,754 $ 688 591% $ 9,789 $ 1,118 776%
Interest expense........... (8,419) (19) N/A (18,017) (59) N/A
</TABLE>
Interest income on cash and marketable securities increased due to higher
balances resulting from the Company's financing activities. Interest expense for
the period May 1998 to September 1998 includes interest and amortization of
deferred charges related to the Company's Senior Discount Notes (as defined
below). Interest expense for the nine months ended September 30, 1998 also
includes the write-off of $2.0 million of unamortized loan fees following
prepayment of the Company's three-year senior secured term loan (the "Senior
Loan"), as well as interest on the Senior Loan and asset acquisitions financed
through loans and capital leases. The Company expects interest expense to
increase in the future as a result of the Senior Discount Notes (as defined
below) and potentially increased financing of asset acquisitions through loans
and capital leases.
Income Taxes
The Company has not generated any taxable income to date and therefore has not
paid any federal income taxes since inception. Utilization of the Company's net
operating loss carryforwards, which begin to expire in 2011, may be subject to
certain limitations under Section 382 of the Internal Revenue Code of 1986, as
amended. 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, 1998, the Company's cash was $14.9 million, compared to $1.9
million at December 31, 1997. Marketable securities balances, which include
highly liquid investments with maturities of three months or less, were $322.4
million and $123.5 million at September 30, 1998 and December 31, 1997,
respectively.
Net cash used in operating activities of $7.7 million for the nine months ended
September 30, 1998 was primarily attributable to the net loss and increases in
inventories and prepaid expenses and other, largely offset by noncash expenses
and increases in accounts payable, accrued advertising and other liabilities and
accrued expenses. For the nine months ended September 30, 1997, cash used in
operating activities was $5.5 million and resulted primarily from the net loss
and increases in
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inventories and prepaid expenses and other, largely offset by increases in
accounts payable and other liabilities and accrued expenses, as well as noncash
expenses.
Net cash used in investing activities was $231.1 million for the nine months
ended September 30, 1998 and consisted of purchases of marketable securities and
acquisitions of businesses and fixed assets, partially offset by maturities of
marketable securities. For the nine months ended September 30, 1997, net cash
used in investing activities was $46.0 million and consisted of purchases of
marketable securities and fixed assets, partially offset by maturities of
marketable securities.
Net cash provided by financing activities of $252.1 million for the nine months
ended September 30, 1998 resulted from net proceeds of $318.2 million from the
Senior Discount Notes (as defined below) offering, PlanetAll's issuance of
capital stock for net proceeds of approximately $8.4 million and proceeds from
the exercise of stock options of $3.0 million, partially offset by the repayment
of the Senior Loan. Net cash provided by financing activities of $52.3 million
for the nine months ended September 30, 1997 resulted primarily from net
proceeds from the Company's initial public offering and proceeds from
PlanetAll's issuance of capital stock.
As of September 30, 1998, the Company's principal sources of liquidity consisted
of $14.9 million of cash and $322.4 million of marketable securities. As of that
date, the Company's principal commitments consisted of obligations outstanding
under its Senior Discount Notes (as defined below), obligations in connection
with the acquisition of fixed assets, 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 including growth associated
with product and geographic expansion and integration of business combinations.
In August 1998, the Company entered into a long-term headquarters lease which
will result in increased lease obligations commencing in the second quarter of
1999 and significant leasehold improvement expenditures. The Company may
establish one or more additional distribution centers within the next 12 months,
which would require it to commit to lease obligations, stock inventories,
purchase fixed assets and install leasehold improvements. In addition, the
Company has announced plans to continue to increase its merchandise inventory in
order to provide better availability to customers and achieve purchasing
efficiencies.
In May 1998, the Company completed the offering of approximately $326 million
gross proceeds of the Senior Discount Notes due May 1, 2008 ("Senior Discount
Notes"). Pursuant to a registration statement on Form S-4, in September 1998 the
Company completed an exchange offer of 10% Senior Discount Notes due 2008 (the
"Exchange Notes") which are registered under the Securities Act of 1933, as
amended (the "Securities Act"), for all outstanding Senior Discount Notes. The
Exchange Notes have identical terms in all material respects to the terms of the
original Senior Discount Notes, except that the Exchange Notes generally are
freely transferable (the Exchange Notes are referred to throughout this
Quarterly Report interchangeably with the Senior Discount Notes). The Exchange
Notes were issued under the indenture governing the original Senior Discount
Notes (the "Indenture"). The Senior Discount Notes were sold at a substantial
discount from their principal amount at maturity of $530 million. Prior to
November 1, 2003, no cash interest payments are required; instead, interest will
accrete during this period to the $530 million aggregate principal amount at
maturity. From and after May 1, 2003, the Senior Discount Notes will bear
interest at the rate of 10% per annum payable in cash on each May 1 and November
1.
The Senior Discount Notes are redeemable, at the option of the Company, in whole
or in part, at any time on or after May 1, 2003, at the redemption prices set
forth in the Indenture, plus accrued interest, if any, to the date of
redemption. At any time prior to May 1, 2001, the Company also may redeem up to
35% of the aggregate principal amount at maturity of the Senior Discount Notes
with the proceeds of one or more sales of Capital Stock (as defined in the
Indenture) (other than Disqualified Stock (as defined in the Indenture)), at 110
% of their Accreted Value (as defined in the Indenture) on the redemption date,
plus accrued interest, if any, to the date of redemption; provided that after
any such redemption at least 65% of the aggregate principal amount at maturity
of Senior Discount Notes originally issued remains outstanding. In addition, at
any time prior to May 1, 2003, the Company may redeem all, but not less than
all, of the Senior Discount Notes at a redemption price equal to the sum of (i)
the Accreted Value (as defined in the Indenture) on the redemption date, plus
(ii) accrued interest, if any, to the redemption date, plus (iii) the Applicable
Premium (as defined in the Indenture).
Upon a Change of Control (as defined in the Indenture), the Company would be
required to make an offer to purchase the Senior Discount Notes at a purchase
price equal to 101% of their Accreted Value on the date of purchase, plus
accrued interest, if any. There can be no assurance that the Company would have
sufficient funds available at the time of any Change of Control to make any
required debt repayment (including repurchases of the Senior Discount Notes).
The Senior Discount Notes are senior unsecured indebtedness of the Company
ranking pari passu with the Company's existing and future unsubordinated,
unsecured indebtedness and senior in right of payment to all subordinated
indebtedness
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of the Company. The Senior Discount Notes are effectively subordinated to all
secured indebtedness and to all existing and future liabilities of the Company's
subsidiaries.
The Indenture contains certain covenants that, among other things, limit the
ability of the Company and its Restricted Subsidiaries to incur indebtedness,
pay dividends, prepay subordinated indebtedness, repurchase capital stock, make
investments, create liens, engage in transactions with stockholders and
affiliates, sell assets and engage in mergers and consolidations. However, these
limitations are subject to a number of important qualifications and exceptions.
A portion of the net proceeds from the offering of the Senior Discount Notes has
been used to retire approximately $75 million of indebtedness outstanding as of
December 31, 1997. The Company expects to use the remaining net proceeds for
general corporate purposes, including working capital to fund anticipated
operating losses, the expansion of the Company's core business, investments in
new business segments and markets, including the Company's sales of music, video
and other products and international expansion, and capital expenditures. The
Company expects, if the opportunity arises, to use an unspecified portion of the
net proceeds to acquire or invest in complementary businesses, products and
technologies.
The Company believes that current cash and marketable securities balances will
be sufficient to meet its anticipated cash needs for at least 12 months.
However, any projections of future cash needs and cash flows are subject to
substantial uncertainty. If current cash, marketable securities and cash which
may be generated from operations are insufficient to satisfy the Company's
liquidity requirements, the Company may seek to sell additional equity or debt
securities or to obtain a line of credit. 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" and "Liquidity and
Capital Resources" sections of this "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and in the Company's Annual
Report on Form 10-K for the year ended December 31, 1997, as amended by the
Company's Current Report on Form 8-K dated August 27, 1998, filed September 11,
1998, the following additional factors may affect the Company's future results:
The online commerce market, particularly over the Web, is new, rapidly evolving
and intensely competitive. In addition, the retail book, music and video
industries are intensely competitive. The Company's current or potential
competitors include (i) various online booksellers and vendors of other 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 retailers other than the Company may offer products, and (iii) publishers,
distributors and retail vendors of books, music and other products, including
Barnes & Noble, Inc. ("Barnes & Noble"), Bertelsmann AG ("Bertelsmann") and
other large specialty booksellers and integrated media corporations, many of
which possess significant brand awareness, sales volume and customer bases. The
Company believes that the principal competitive factors in its market are brand
recognition, selection, personalized services, convenience, price,
accessibility, customer service, quality of search tools, quality of editorial
and other site content, and reliability and speed of fulfillment. Many of the
Company's competitors have longer operating histories, larger customer bases,
greater brand recognition and significantly greater financial, marketing and
other resources than the Company. Certain of the Company's competitors may be
able to secure merchandise from vendors on more favorable terms, devote greater
resources to marketing and promotional campaigns, adopt more aggressive pricing
or inventory availability policies and devote substantially more resources to
Web site and systems development than the Company. Increased competition may
result in reduced operating margins, loss of market share and a diminished brand
franchise. The Company anticipates that as the online commerce market continues
to grow other companies may enter into business combinations or alliances in
order to strengthen their competitive positions. For example, (i) Bertelsmann
recently announced that it purchased a fifty percent interest in Barnes &
Noble's online venture, barnesandnoble.com inc. and intends to launch online
stores in several countries, (ii) Barnes & Noble recently announced the pending
acquisition of Ingram Book Group ("Ingram"), and (iii) online music retailers
CDnow, Inc. and N2K Inc. recently announced that they agreed to merge. There can
be no assurance that the Company will be able to compete successfully against
current and future competitors.
The Company expects that competition in the Internet and online commerce markets
will intensify in the future. For example, as various Internet market segments
obtain large, loyal customer bases, participants in those segments may seek to
leverage their market power to the detriment of participants in other market
segments. In addition, new technologies and the expansion of existing
technologies may increase the competitive pressures on online retailers,
including the Company. For example, "shopping agent" technologies permit
customers to quickly compare the Company's prices with those of its competitors.
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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 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 could 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 have redundant systems or a formal
disaster recovery plan and in the event of a major interruption may not have
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
critical 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 expansion will be required to address potential growth
in its customer base, to expand its product and service offerings and its
international operations, and to pursue other market opportunities. The
expansion of the Company's operations and employee base 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, as well as 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,
such inability could have a material adverse effect on the Company's business,
prospects, financial condition and results of operations.
The Company over time intends to expand its operations by promoting new or
complementary products or sales formats and by expanding the breadth and depth
of its product or service offerings. For example, the Company introduced its
music store in June 1998 and has announced plans to launch a video store.
Expansion of the Company's operations in this manner will require significant
additional expenses and development, operations and editorial resources and
could strain the Company's management, financial and operational resources.
Furthermore, the Company may not benefit from the first-mover advantage that it
experienced in the online book market, and gross margins attributable to new
business areas may be lower than those associated with the Company's existing
business activities. There can be no assurance that the Company will be able to
expand its operations in a cost-effective or timely manner. Furthermore, any new
business launched by the Company that is not favorably received by consumers
could damage the Company's reputation or the Amazon.com brand. 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.
The Company expects to expand its presence in foreign markets and in October
1998 formally entered the European market with the launch of new stores in
Germany and the United Kingdom. To date, the Company has only limited experience
in sourcing, marketing and distributing products on an international basis and
in developing localized versions of its Web site and other systems. The Company
expects to incur significant costs in establishing international facilities and
operations, in promoting its brand internationally, in developing localized
versions of its Web site and other systems and in sourcing,
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marketing and distributing products in foreign markets. There can be no
assurance that the Company's international efforts will be successful. If the
revenues resulting from international activities are inadequate to offset the
expense of establishing and maintaining foreign operations, such inadequacy
could have a material adverse effect on the Company's business, prospects,
financial condition and results of operations. The Company expects that as the
international online commerce market continues to grow other companies may enter
into business combinations or alliances in order to strengthen their competitive
positions and that competition in the international online commerce market will
intensify. For example Bertelsmann recently announced that it intends to launch
online stores in several countries. In addition, there are certain risks
inherent in doing business on an international level, such as unexpected changes
in regulatory requirements, export and import restrictions, tariffs and other
trade barriers, difficulties in staffing and managing foreign operations, longer
payment cycles, political instability, fluctuations in currency exchange rates,
seasonal reductions in business activity in other parts of the world and
potentially adverse tax consequences, any of which could adversely affect the
success of the Company's international operations. Furthermore, it is possible
that governments in certain foreign jurisdictions may have or enact legislation
with respect to the Internet or other online services in such areas as content,
privacy, network security, encryption or distribution that may affect the
Company's ability to conduct business abroad. There can be no assurance that one
or more of such factors will not have a material adverse effect on the Company's
future international operations and, consequently, on the Company's business,
prospects, financial condition and results of operations.
The Company may choose to expand its operations or market presence by entering
into business combinations, investments, joint ventures or other strategic
alliances with third parties, such as the Company's April acquisitions of
Bookpages, Telebook and IMDB and the August acquisitions of Junglee and
PlanetAll. Any such transaction will be accompanied by risks commonly
encountered in such transactions, which include, among others, the difficulty of
assimilating the operations, technology and personnel of the combined companies,
the potential disruption of the Company's ongoing business, the possible
inability to retain key technical and managerial personnel, the potential
inability of management to maximize the financial and strategic position of the
Company through the successful integration of acquired businesses, additional
expenses associated with amortization of goodwill and other purchased intangible
assets, additional operating losses and expenses associated with the activities
and expansion of acquired businesses, the maintenance of uniform standards,
controls and policies and the possible impairment of relationships with existing
employees and customers. There can be no assurance that the Company will be
successful in overcoming these risks or any other problems encountered in
connection with such business combinations, investments, joint ventures or other
strategic alliances, or that such transactions will not have a material adverse
effect on the Company's business, prospects, financial condition and results of
operations.
To remain competitive, the Company must continue to enhance and improve the
responsiveness, functionality and features of the Amazon.com online store. The
Internet and the online commerce industry are characterized by rapid
technological change, changes in user and customer requirements and preferences,
frequent new products and service introductions embodying new technologies and
the emergence of new industry standards and practices that could render the
Company's existing Web site and proprietary technology and systems obsolete. The
Company's success will depend, in part, on its ability to license leading
technologies useful in its business, enhance its existing services, develop new
services and technology that address the increasingly sophisticated and varied
needs of its prospective customers and respond to technological advances and
emerging industry standards and practices on a cost-effective and timely basis.
The development of a Web site and other proprietary technology entails
significant technical, financial and business risks. There can be no assurance
that the Company will successfully implement new technologies or adapt its Web
site, proprietary technology and transaction-processing systems to customer
requirements or emerging industry standards. If the Company is unable, for
technical, legal, financial or other reasons, to adapt in a timely manner in
response to changing market conditions or customer requirements, such inability
could have a material adverse effect on the Company's business, prospects,
financial condition and results of operations.
The Company's performance is substantially dependent on the continued services
and on the performance of its senior management and other key personnel,
particularly Jeffrey P. Bezos, its President, Chief Executive Officer and
Chairman of the Board. The Company does not have long-term employment agreements
with any of its key personnel and maintains no "key person" life insurance
policies. The loss of the services of its executive officers or other key
employees could have a material adverse effect on the Company's business,
prospects, financial condition and results of operations.
The Company purchases a majority of its products from two major vendors, Ingram
and Baker & Taylor, Inc. Barnes & Noble recently announced an agreement to
purchase Ingram. Ingram is the Company's single largest supplier and accounted
for 58% and 59% of the Company's inventory purchases in 1997 and 1996,
respectively. During 1998 the Company has continued to purchase a majority of
its products from these suppliers with Ingram remaining the single largest
supplier. In addition, during 1998 the Company increased direct purchasing from
publishers (see "- Results of Operations") and intends to continue to do so in
future periods. The Company does not have long-term contracts or arrangements
with most of its vendors guaranteeing the availability of merchandise, the
continuation of particular payment terms or the extension of credit limits.
There can be no assurance that the Company's current vendors will continue to
sell merchandise to the Company on current terms or that the Company will be
able to establish new or extend current vendor relationships to ensure
acquisition
Page 18
<PAGE> 19
of merchandise in a timely and efficient manner and on acceptable commercial
terms. If the Company were unable to develop and maintain relationships with
vendors that would allow it to obtain sufficient quantities of merchandise on
acceptable commercial terms, such inability could have a material adverse effect
on the Company's business, prospects, financial condition and results of
operations.
The Company has significant indebtedness outstanding, principally the Senior
Discount Notes (see " - Liquidity and Capital Resources"), capitalized lease
obligations and other asset financing. The Company may incur substantial
additional indebtedness in the future. The level of the Company's indebtedness,
among other things, could (i) make it difficult for the Company to make payments
on the Senior Discount Notes, (ii) make it difficult for the Company to obtain
any necessary financing in the future for working capital, capital expenditures,
debt service requirements or other purposes, (iii) limit the Company's
flexibility in planning for, or reacting to changes in, its business, and (iv)
make it more vulnerable in the event of a downturn in its business. There can be
no assurance that the Company will be able to improve its earnings before fixed
charges or that the Company will be able to meet its debt service obligations,
including its obligations under the Senior Discount Notes. In the event the
Company's cash flow is inadequate to meet its obligations, the Company could
face substantial liquidity problems. If the Company is unable to generate
sufficient cash flow or otherwise obtain funds necessary to make required
payments, or if the Company otherwise fails to comply with the various covenants
in its indebtedness, it would be in default under the terms thereof, which would
permit the holders of such indebtedness to accelerate the maturity of such
indebtedness and could cause defaults under other indebtedness of the Company.
Any such default could have a material adverse effect on the Company's business,
prospects, financial condition and results of operations.
The Company currently holds various Web domain names relating to its brand,
including the "Amazon.com" domain name. The acquisition and maintenance of
domain names generally is regulated by governmental agencies and their
designees. For example, in the United States, the National Science Foundation
has appointed Network Solutions, Inc. as the current exclusive registrar for the
".com," ".net" and ".org" generic top-level domains. The regulation of domain
names in the United States and in foreign countries is subject to change in the
near future. Such changes in the United States are expected to include a
transition from the current system to a system which is controlled by a
non-profit corporation and the creation of additional top-level domains.
Governing bodies may establish additional top-level domains, appoint additional
domain name registrars or modify the requirements for holding domain names. As a
result, there can be no assurance that the Company will be able to acquire or
maintain relevant domain names in all countries in which it conducts business.
Furthermore, the relationship between regulations governing domain names and
laws protecting trademarks and similar proprietary rights is unclear. The
Company, therefore, may be unable to prevent third parties from acquiring domain
names that are similar to, infringe upon or otherwise decrease the value of its
trademarks and other proprietary rights. Any such inability could have a
material adverse effect on the Company's business, prospects, financial
condition and results of operations.
The Company is not currently subject to direct regulation by any domestic or
foreign governmental agency, other than regulations applicable to businesses
generally and laws or regulations directly applicable to access to online
commerce. However, due to the increasing popularity and use of the Internet and
other online services, it is possible that a number of laws and regulations may
be adopted with respect to the Internet or other online services covering issues
such as user privacy, pricing, content, copyrights, distribution and
characteristics and quality of products and services. Furthermore, the growth
and development of the market for online commerce may prompt calls for more
stringent consumer protection laws that may impose additional burdens on those
companies conducting business online. The adoption of any additional laws or
regulations may decrease the growth of the Internet or other online services,
which could, in turn, decrease the demand for the Company's products and
services and increase the Company's cost of doing business, or otherwise have a
material adverse effect on the Company's business, prospects, financial
condition and results of operations. Moreover, the applicability to the Internet
and other online services of existing laws in various jurisdictions governing
issues such as property ownership, sales and other taxes, libel and personal
privacy is uncertain and may take years to resolve. Any such new legislation or
regulation, the application of laws and regulations from jurisdictions whose
laws do not currently apply to the Company's business, or the application of
existing laws and regulations to the Internet and other online services could
have a material adverse effect on the Company's business, prospects, financial
condition and results of operations.
The Company has never paid cash dividends on its common stock. The Company's
Board of Directors will determine future dividend policy based on the Company's
results of operations, financial condition, capital requirements and other
circumstances. The Indenture relating to the Senior Discount Notes, prohibits
the Company from paying cash dividends on its capital stock, subject to certain
exceptions. It is not anticipated that any cash dividends will be paid on the
common stock in the foreseeable future.
Page 19
<PAGE> 20
The Company has developed a plan to modify its information technology to
recognize the Year 2000 and has, to the extent necessary, begun converting its
critical data processing systems. Since the Company's systems and software are
relatively new, management does not expect Year 2000 issues related to its own
internal systems to be significant and does not anticipate that it will incur
significant operating expenses or be required to invest heavily in computer
systems improvements to be Year 2000 compliant. The Company has initiated formal
communications with certain of its significant suppliers and service providers
to determine the extent to which the Company's interface systems may be
vulnerable should those third parties fail to address and correct their own Year
2000 issues. The Company currently expects the project to be completed in the
third quarter of 1999. There can be no guarantee that the systems of suppliers
or other companies on which the Company relies will be converted in a timely
manner and will not have a material adverse effect on the Company's systems.
Additionally, there can be no guarantee that the computer systems necessary to
maintain the viability of the Internet or any of the Web sites that direct
consumers to the Company's online store will be Year 2000 compliant. As part of
the Company's overall Year 2000 compliance plan, the Company intends to monitor
systems performance and plans to develop a rapid response program in the event
of any significant disruption as a result of the Year 2000 issues. To date the
Company has not developed a formal contingency plan. The Company believes it is
taking the steps necessary regarding Year 2000 compliance with respect to
matters within its control. However, no assurance can be given that the
Company's systems will be made Year 2000 compliant in a timely manner or that
the Year 2000 problem will not have a material adverse effect on the Company's
business, prospects, financial condition and results of operations.
The trading price of the common stock is subject to wide fluctuations. For
example, during the quarter ended September 30, 1998, the reported closing price
of the common stock on Nasdaq was as high as $139.50 and as low as $73.00 per
share (as adjusted for the Company's 2-for-1 stock split effected June 1, 1998).
Trading prices of the common stock may fluctuate in response to a number of
events and factors, such as quarterly variations in operating results,
announcements of innovations, new products, strategic developments or business
combinations by the Company or its competitors, changes in the Company's
expected operating expense levels or losses, changes in financial estimates and
recommendations by securities analysts, the operating and stock price
performance of other companies that investors may deem comparable to the
Company, news reports relating to trends in the Internet, book, music or other
product industries and other events or factors many of which are beyond the
Company's control. In addition, the stock market in general, and the market
prices for Internet-related companies in particular, have experienced extreme
volatility that often has been unrelated to the operating performance of such
companies. These broad market and industry fluctuations may adversely affect the
trading price of the common stock, regardless of the Company's operating
performance.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
None
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On August 5, 1998, The Intimate Bookshop and Wallace Kuralt filed a lawsuit in
the United States District Court for the Southern District of New York against
the Company, Barnes & Noble, Borders Group, Inc. and others alleging antitrust,
unfair competition and related claims under the Robinson-Patman Act, the Clayton
Act, the Donnelly Act and other New York state statutes and common law. As
originally filed the lawsuit sought class action certification, for certain
purposes, of a class comprised of independent retail booksellers. The complaint
was recently amended to drop the class action allegations and certain claims. A
claim for unfair competition was added. The plaintiffs request the following
relief: actual damages of approximately $11,250,000, treble damages, injunctive
relief, punitive damages, prejudgment and post-judgment interest, attorney' fees
and costs. The Company believes the lawsuit is without merit and intends to
defend against the plaintiffs' claims vigorously.
On October 16, 1998, Wal-Mart Stores, Inc. ("Wal-Mart") filed a lawsuit against
the Company, Kleiner Perkins Caufield & Byers, LLP, Richard Dalzell and
Drugstore.com, Inc. in the Chancery Court of Benton County, Arkansas. The First
Amended Complaint alleges that the defendants have or will inevitably
misappropriate Wal-Mart's trade secrets and asserts claims for violation of the
Arkansas Trade Secrets Act, the Arkansas Unfair Trade Practices Act, conspiracy,
unjust enrichment, tortious interference with business relations and other
common law claims. Wal-Mart's prayer for relief seeks entry of a temporary
restraining order, permanent injunctive relief, an accounting, compensatory
damages, pre-judgment and post-judgment interest, attorneys' fees and costs. The
Company was only recently served with the First Amended Complaint and has not as
of the date hereof prepared a formal answer. However, the Company believes the
lawsuit is without merit and intends to defend against Wal-Mart's claims
vigorously.
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<PAGE> 21
Wal-Mart has filed a petition for a temporary restraining order. A hearing on
the petition was held on November 2, 1998 and thereafter postponed by order of
the Court, until December 2, 1998.
From time to time, the Company is subject to other legal proceedings and claims
in the ordinary course of business, including claims of alleged infringement of
trademarks and other intellectual property rights. The Company currently is not
aware of any such legal proceedings or claims that it believes will have,
individually or in the aggregate, a material adverse effect on its business,
prospects, financial condition and results of operations.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Changes in Securities
On May 8, 1998, the Company completed the offering of approximately $326 million
gross proceeds of the Senior Discount Notes. Pursuant to a registration
statement on Form S-4, on September 21, 1998 the Company completed an exchange
offer of the Exchange Notes which are registered under the Securities Act, for
all outstanding Senior Discount Notes. The Exchange Notes have identical terms
in all material respects to the terms of the original Senior Discount Notes,
except that the Exchange Notes generally are freely transferable. The Exchange
Notes were issued under the Indenture.
Unregistered Issuances of Securities
The Company issued 2,377,463 shares of common stock of Amazon.com, as follows:
(i) on August 12, 1998 in connection with the acquisition of the outstanding
capital stock of Junglee, and (ii) on August 27, 1998 in connection with the
acquisition of the outstanding capital stock of PlanetAll. No underwriters were
used and the recipients of the Company's common stock were the shareholders of
the acquired companies. The shares of common stock issued in the Junglee and
PlanetAll acquisitions were issued in reliance upon an exemption from the
registration requirements of the Securities Act provided, in each case, by Rule
506 of Regulation D thereof. The shareholders of the acquired companies made
certain representations to the Company as to investment intent, that they
possessed a sufficient level of financial sophistication and that they received
information about the Company. The shares issued in the transactions were
subject to restrictions on transfer absent registration under the Securities
Act, and no offers to sell the securities were made by any form of general
solicitation or general advertisement. Subsequent to the fiscal period, the
Company registered such shares for resale on a registration statement on Form
S-3 declared effective by the SEC on October 22, 1998.
Use of Proceeds
The Company's registration statement (No. 333-23795) under the Securities Act
for its initial public offering (the "Registration Statement") was declared
effective by the SEC on May 14, 1997. Offering proceeds, net of aggregate
expenses of approximately $4.9 million, were $49.1 million. The Company used the
net proceeds of $49.1 million as follows: approximately $15.3 million of the net
offering proceeds for working capital paid directly or indirectly to third
parties; approximately $15.0 million for the acquisitions of businesses; and,
approximately $18.8 million for the purchase or installation of machinery and
equipment. The Company did not use any of the net offering proceeds for
construction of a plant, building or facilities, purchases of real estate, or
repayment of indebtedness. In addition, 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.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
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<PAGE> 22
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Lease Agreement, dated August 31, 1998, by and between Amazon.com,
Inc. and WRC.COM TOWER LLC.
27 Financial Data Schedule.
(b) Reports on Form 8-K
On August 7, 1998, the Company filed a Form 8-K under Item 5 announcing
that the Company entered into definitive agreements to acquire Junglee and
PlanetAll.
On August 27, 1998, the Company filed a Form 8-K under Items 2 and 7
regarding the completion of the Junglee acquisition.
On September 11, 1998, the Company filed a Form 8-K under Items 2 and 7
regarding the completion of the PlanetAll acquisition, which included a
restatement of the Company's condensed consolidated financial statements
to reflect the acquisition of PlanetAll which was accounted for as a
pooling of interests.
On October 26, 1998, the Company filed a Form 8-K/A under Item 7 amending
certain financial statements, exhibits and other portions of its Current
Report on Form 8-K filed August 27, 1998, relating to the completion of
the Junglee acquisition.
On October 28, 1998, the Company filed a Form 8-K under Item 5 announcing
the Company's financial results for the third quarter of 1998.
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<PAGE> 23
SIGNATURES
Pursuant to the requirements 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 13, 1998
By://S//Joy D. Covey
Joy D. Covey
Chief Financial Officer,
Vice President of Finance and Administration
and Secretary
Page 23
<PAGE> 24
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Title
- -------------- --------------------------------------------------------------
<S> <C>
10.1 Lease Agreement, dated August 31, 1998, by and between
Amazon.com, Inc. and WRC.COM TOWER LLC.
27 Financial Data Schedule.
</TABLE>
Page 24
<PAGE> 1
PACIFIC MEDICAL CENTER
LEASE AGREEMENT
BETWEEN
WRC.COM TOWER LLC
LANDLORD
AND
AMAZON.COM, INC.
TENANT
<PAGE> 2
LEASE AGREEMENT
PACIFIC MEDICAL CENTER
THIS LEASE made this 31st day of August, 1998 between WRC.COM TOWER
LLC, a Washington limited liability company ("Landlord"), and AMAZON.COM, INC.,
a Delaware corporation ("Tenant").
As parties hereto, Landlord and Tenant agree:
1. LEASE DATA AND EXHIBITS. The following terms as used herein shall
have the meanings provided in this Section 1, unless otherwise specifically
modified by provisions of this Lease:
(a) Building: Known as Pacific Medical Tower, or such other name
as Landlord and Tenant may, pursuant to Section 37(k) below, designate from time
to time, situated on the Land more particularly described in Section 2 hereof,
with an address of 1200 - 12th Avenue S., Seattle, WA 98144.
(b) Premises: Consisting of all of Floors one (1) through twelve
(12) of the Building (excluding approximately 3,532 rentable square feet on
Floor 1) and an entrance lobby with adjacent space totaling approximately 3,590
rentable square feet on the basement floor of the Building, as outlined on the
floor plans attached hereto as Exhibit A-1, including tenant improvements, if
any, as described in Exhibit B and approximately 1,924 usable square feet of
Tower Storage Space on Floor 13.
(c) Tenant's Pro Rata Share: Landlord and Tenant agree that, for
purposes of this Lease, the rentable area of the Premises is deemed to be
184,040 net rentable square feet and Tenant's Pro Rata Share of the Building is
deemed to be 71.5%. Landlord and Tenant have agreed that these figures shall
remain fixed and shall not be subject to any further challenge or adjustment,
provided that the rentable area of the Premises shall be subject to adjustment
upon the occasion of any addition to or deletion from the Premises, and Tenant's
Pro Rata Share of the Building shall also be subject to modification if the size
of the Building is modified. In calculating Tenant's Pro Rata Share for future
adjustments, storage areas shall be excluded in both the calculation of the net
rentable area of the Premises and the net rentable area of the Building.
(d) Basic Plans Delivery Date: See Exhibit B.
(e) Final Plans Delivery Date: See Exhibit B.
(f) Commencement Date: The Commencement Date shall be as
specified in Section 3. The term "Commencement Date" and definitions applicable
thereto are more fully defined in Section 3.
(g) Expiration Date: Midnight on the day immediately preceding
the tenth (10th) annual anniversary of the Commencement Date.
(h) Rent: Rent shall commence (i) on the Commencement Date, as to
the First Phase Floors (defined in Section 3); (ii) the date which is five (5)
days after the date the Second Phase Floors and any Deferred Phase Floors (as
defined in Section 3) are delivered to Tenant pursuant to Section 3, as to each
such phase. If less than all of the First Phase Floors or Second Phase Floors
are delivered as provided in Section 3(i) below, Rent shall commence as to the
portion so delivered five days after Premises Delivery for such floors. Rent is
payable monthly on or before the first day of each month. Rent for each month of
the Lease term shall be one-twelfth (1/12) of the annual rent calculated by
multiplying the applicable rental rate times the number of rentable square feet
within the Premises, as set forth below:
<TABLE>
<CAPTION>
Lease Years Rent Per Net Rentable Square Foot
----------- ---------------------------------
<S> <C>
1 - 5 $17.25
6 - 10 $19.25
</TABLE>
-1-
<PAGE> 3
A Lease Year shall be the annual period commencing on the Commencement
Date and on each subsequent annual anniversary of the Commencement Date.
The above Rent does not apply to the 1,924 usable square feet of storage
space (the "Tower Storage Space") on Floor 13. Rent for the Tower Storage Space
shall be twelve dollars ($12) per usable square foot for the first five (5)
Lease Years, and thirteen dollars ($13) per usable square foot for the second
five (5) Lease Years. Rent on the Tower Storage Space shall be adjusted to
market rates during the Extension Terms (as defined below). Rent for the Tower
Storage Space shall commence upon the Commencement Date.
(i) Security Deposit/Letter of Credit: $35 per square foot for
each net rentable square foot of the Premises in the form of cash, a pledge of
marketable securities or a letter of credit as provided in Section 6 below
(initially $6,441,400, based upon 184,040 net rentable square feet).
(j) Base Year: Intentionally omitted.
(k) Agency Disclosure: At the signing of this Lease Agreement,
the Landlord's Leasing Agent, Wright Runstad & Company, represented Landlord.
The listed Tenant's agent, Ed Curtis, of Washington Partners, represented
Tenant. Each party signing this document confirms that the prior oral and/or
written disclosure of agency was provided to him/her in this transaction. (As
required by WAC 308-124D-040).
(1) Parking: Landlord shall provide and Tenant shall pay for and
have the right to use a total of 267 exclusive parking spaces on the Property,
on the lots north of the Building and in the existing parking garage south of
the Building. Landlord may designate up to 25 of such spaces to be in the
existing parking garage south of the building, and the other parking spaces
shall initially be surface parking on the Property and on the lots north of the
Building. In addition, Landlord shall provide 11 designated short term or
transient parking stalls at no charge for visitors of Tenant in the vicinity of
the Building. The use of such short term or transient parking stalls shall be
governed by the terms of the REA (as defined below) and initially shall be in
the location designated on Exhibit F. If Tenant desires any additional short
term/transient parking stalls, it may utilize its own surface or garage parking
stalls for that purpose. Surface parking rates shall be $75.00 plus applicable
sales/use tax (if any) per stall per month and garage parking rates shall be
$125 plus applicable sales/use tax (if any) per stall per month. Each date on
which Landlord delivers portions of the Premises to Tenant pursuant to Section
3, Tenant shall commence payment for a pro-rata share of the total parking,
based on the ratio the rentable square footage of the delivered floors bears to
the total rentable square footage of the Premises (exclusive of Storage Space).
Tenant shall have the right to choose, on each such delivery date, how many
spaces for each added increment shall be surface parking spaces and how many
shall be parking garage spaces. Payment for parking spaces shall be due with the
payment of rent as provided herein.
The parties acknowledge that Landlord contemplates the
construction of a new parking facility near the Building. If such new parking
facility is constructed, Landlord shall have the right to designate and provide
any or all of the above-mentioned 267 exclusive parking spaces and the 11
designated short term/transient parking spaces in the new parking garage,
provided that Landlord may require Tenant to use parking spaces in the new
garage in lieu of parking spaces on the Property and on the lots north of the
Building only if new development is undertaken on the lots north of the
Building. Parking rates in the new parking facility shall be $125 plus
applicable sales/use tax (if any) per stall per month. However, if Landlord
requires Tenant to use parking spaces in the new parking garage, Tenant shall
also have the right to use any additional parking in the lots north of the
building while available (i.e. until utilized for construction, permanent
building, landscaping or similar purposes) at a rate of $75 per month.
In addition, Landlord reserves the right to provide temporary
replacement parking for some of the surface parking spaces on the lots north of
the Building if a portion of the surface parking area is needed for construction
or construction staging for the development of the new parking garage. Such
temporary replacement parking may be off site, provided that if replacement
parking is more than 1/4 mile from the Premises, Landlord agrees to provide (at
Landlord's expense) shuttle service between the Premises and such off site
parking area.
In the event Tenant exercises its right of first opportunity or right of
first offer set forth below to lease additional space in the Building, and to
the extent additional parking is then available, Tenant shall be obligated to
lease from Landlord an additional 1.5 parking spaces for each 1,000 rentable
space feet of additional space leased by Tenant (rounded to the next whole
number of parking spaces
-2-
<PAGE> 4
and with a credit for any north lot spaces voluntarily taken by Tenant pursuant
to the last sentence of the second paragraph of this subsection while such
spaces are available). Such spaces may be on the Property, in the north lot, the
existing parking garage or the new parking facility, as designated by Landlord.
WRC.Com Development LLC, a Washington limited liability company, an
affiliate of Landlord and the current ground lessee of the lots north of the
Building, hereby joins in this Lease solely for purposes of binding itself to
the provisions of this Lease applicable to parking in the lots north of the
Building for so long as Landlord is required to provide such parking pursuant to
the terms of this Lease.
(m) Notice Addresses:
Landlord: WRC.COM TOWER LLC
1191 Second Avenue, Suite 2000
Seattle, Washington 98101
Attention: Jon Nordby
Tenant: Prior to Commencement Date:
Amazon.Com, Inc.
1516 Second Avenue
Seattle, Washington 98101
Attention: General Counsel
After Commencement Date:
Amazon.Com, Inc.
1200 12th Avenue South
Seattle, Washington 98144
Attention: General Counsel
(n) Payment Address: WRC.COM TOWER LLC
1191 Second Avenue, Suite 2000
Seattle, Washington 98101
(o) Gentle Dental Adjustment. A portion of Floor One of the
Building is currently leased to Gentle Dental Services Corporation ("Gentle
Dental") under Lease Agreement dated August 1, 1997 (the "Gentle Dental Lease").
The Gentle Dental Lease currently covers approximately 3,532 square feet on
Floor 1, with limited options to expand to a total of 7,773 square feet on Floor
1.
Landlord is currently negotiating with Gentle Dental to seek
either (i) an early termination of the Gentle Dental Lease, or (ii) a
termination of the expansion option. All of the figures and calculations set
forth in this Lease are based upon the assumption that the Gentle Dental Lease
continues as to Floor 1 but that the expansion option is terminated.
If Landlord is successful in obtaining an early termination of
the Gentle Dental Lease, the Premises will be expanded to include all of Floor
1, and the other provisions of this Lease based upon the size of the Premises
shall be adjusted accordingly (i.e. Rent, Tenant's Pro Rata Share, Security
Deposit, Allowance, etc.). If Landlord is not successful in obtaining either a
termination of the Gentle Dental Lease or a termination of the expansion option,
the Premises shall not include any portion of the space subject to the Gentle
Dental Lease (including the expansion space) and the other provisions of the
Lease based upon the size of the Premises shall be adjusted accordingly.
(p) Exhibits: The following exhibits or riders are made a part of
this Lease:
Exhibit A- Legal Description of Land
Exhibit A-1 Floor Plan of Premises
Exhibit B - Tenant Improvements
Exhibit C - Addendum to Lease
Exhibit D - Base Building Specifications
-3-
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Exhibit E - Subordination, Attornment and
Non-Disturbance Agreement Form
Exhibit F - Location of Transient Parking Spaces
Exhibit G - Projected 1999 Taxes and Operating Costs
Exhibit H - List of Restriction Documents
Exhibit I - Arbitration
Exhibit J - Formula to Determine Landlord's Early
Replacement Cost
Exhibit K - Pet Policy
2. PREMISES: Landlord does hereby lease to Tenant, and Tenant does
hereby lease from Landlord, upon the terms and conditions herein set forth, the
Premises described in Section l(b) hereof as shown on the Plans referenced in
Exhibit A-1 attached hereto and incorporated herein. In addition, Tenant shall
also have the aforementioned parking rights and rights of ingress and egress
over common areas in the Building and the land ("Land") more particularly
described on Exhibit A attached hereto, together with the right to use the large
green "Commons" area in the center of the campus of which the Land is a part.
All of Tenant's rights in and over the Land and the Commons shall be subject to
the provisions of that certain Reciprocal Easement Agreement dated of
approximately even date herewith ("REA"), a copy of which Tenant acknowledges
having had the opportunity to review.
Landlord does not own the Building and Land but leases them pursuant to
that certain Tower, and Adjacent Property Lease dated August 26, 1998 (the
"Ground Lease") between Pacific Hospital Preservation and Development Authority,
a Washington public authority ("PMC") as landlord and Landlord as tenant. This
lease is therefore actually a sublease and subject and subordinate to all of the
terms and conditions of the Ground Lease. For convenience, this sublease is
referred to herein as this "Lease." Notwithstanding the foregoing, nothing in
the Ground Lease shall modify or excuse Landlord's obligations to Tenant under
this Lease.
Landlord shall cause to be executed, concurrent with full execution of
this Lease, an agreement by PMC acknowledging that this Lease is in compliance
with all requirements of the Ground Lease, and agreeing that, in the event the
Ground Lease is terminated for any reason, this Lease shall become a direct
lease between Tenant and PMC without further action by either party, and
provided only that PMC shall not be liable for (i) any claims against the
Landlord under this Lease accruing prior to the date this Lease becomes a direct
lease between Tenant and PMC, or (ii) any initial construction or allowance
obligations under this Lease.
"Net rentable square feet", "rentable area", and similar terms used
herein when applied to future calculations or adjustments shall mean "Rentable
Area" as defined in BOMA American National Standard Z6.1-1996.
CONSTRUCTION; COMMENCEMENT AND EXPIRATION DATES:
(a) Completion of Construction: Landlord will at its sole cost
and expense proceed in good faith with all due diligence to obtain all permits
and approvals, and complete all work necessary to deliver the Premises with the
Base Building Specifications described in Exhibit D ("Landlord's Work")
completed. Tenant improvements with respect to the Premises ("Tenant
Improvements") shall be constructed pursuant to Tenant's plans for the Premises
approved by Landlord to the extent and in the manner set forth in Exhibit B.
Landlord shall enter into the contract with the Tenant Improvement contractor,
who shall be selected in accordance with the provisions of Exhibit B. Tenant is
aware that its selection of a Tenant Improvements contractor other than the
contractor engaged by Landlord to perform Landlord's Work could cause delays in
completion of the Tenant Improvements.
(b) Payment for Tenant Improvements: Tenant shall receive from
Landlord an allowance ("Allowance") of up to Twenty Five Dollars ($25.00) per
square foot of net rentable area in the Premises (excluding Storage Space) as a
credit against the cost of the Tenant Improvements and paid as follows:
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(i) The Allowance may be applied to all costs of the Tenant
Improvements, including design (architectural and engineering) and construction
fees. The Allowance shall be paid by Landlord upon receipt of invoices for work
actually performed or materials supplied.
(ii) Any portion of the Allowance not used for Tenant
Improvements with respect to the Premises shall not be available or paid to
Tenant.
(iii) All costs of designing and constructing the Tenant
Improvements in excess of the Allowance shall be borne solely by Tenant, except
that Landlord agrees to provide Tenant with an additional allowance of up to Ten
Dollars ($10.00) per rentable square foot, excluding Storage Space (the
"Additional Allowance"), which amount shall be repaid by Tenant in twelve (12)
equal monthly installments as Additional Rent of $1.29 per rentable square foot
per year for ten (10) years for each $ 1.00 of the Additional Allowance per
rentable square foot used by Tenant, prorated for amounts that are not in even
$1.00 increments. For example, if Tenant uses the full $10.00 per rentable
square foot Additional Allowance, Rent shall be increased by $1.29 per rentable
square foot per year for ten (10) years. If Tenant elects to use some or all of
the Additional Allowance, Tenant shall so notify Landlord in writing prior to
commencement of construction of the Tenant Improvements or prior to execution of
a change order that would require use of some or all of the Additional
Allowance.
(iv) If the budgeted cost of designing or constructing the Tenant
Improvements exceeds the sum of the Allowance and the Additional Allowance (if
any), all disbursements of the allowances hereunder for the Tenant Improvements
shall be shared by Landlord and Tenant in proportion to their estimated sharing
of the total costs of the Tenant Improvements. Landlord may adjust that sharing
ratio from time to time if the cost of completing the Tenant Improvements has
increased pursuant to change orders approved by Landlord and Tenant. Amounts
required to be paid by Landlord or Tenant hereunder shall be paid by the
applicable party on a monthly basis no later than the date required under the
construction contract for payment for the costs of the specific Tenant
Improvements. However, in connection with the construction of the Tenant
Improvements, Landlord shall not be required to incur costs in excess of the
Allowance and the Additional Allowance, if any.
(c) Commencement Date: The Commencement Date of this Lease shall be the
date which is five (5) days after the earlier of (i) the date of Premises
Delivery as to the First Phase Floors (defined below) or, if applicable, the
Initial Minimum Delivery as provided in Section 3(i) below, or (ii) the date on
which Premises Delivery as to the First Phase Floors would have occurred but for
Tenant Delays. If the Commencement Date does not occur by the projected First
Phase Projected Delivery Date set forth below, this Lease shall not be void or
voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom except as specifically provided in this Section 3. Landlord
and Tenant shall use their best efforts to achieve Premises Delivery in
accordance with this Section 3 and with Exhibit B attached hereto on the date(s)
specified herein or as soon thereafter as practicable.
(d) Selection of Contractor. The date of Premises Delivery may be
affected by which contractor is selected to construct the Tenant Improvements.
If Tenant selects a contractor other than the contractor engaged by Landlord to
perform Landlord's Work, any delays in Premises Delivery (based upon the
schedule to complete the Tenant Improvements as proposed by the contractor
performing the Landlord's Work in relation to the actual Premises Delivery and
after adjustment for any delay (other than Tenant Delays) that would have been
experienced had Landlord's contractor performed the work) shall constitute a
Tenant Delay. All of the projected Premises Delivery dates are subject to the
delay provisions contained in Section 3 below. The contractor so selected to
construct the Tenant Improvements shall be hereinafter referred to as the
"Tenant Improvement Contractor."
(e) Premises Delivery. As used herein, "Premises Delivery" as to the
First Phase Floors, the Second Phase Floors and any Deferred Phase Floors shall
mean the earlier of (i) the date Tenant first occupies the applicable phase for
any beneficial purpose other than tenant finish work or installation of
utilities, data lines, telephone lines, cabling, wiring, or furniture, fixtures
or other equipment, or (ii) the date of Landlord's delivery of such phase to
Tenant with all Landlord's Work and Tenant Improvements Substantially Complete.
The "First Phase Floors" shall mean the lobby area on Floor 1, all of Floors 6,
7, 8, 9 and 10, Floors 11 and 12 unless Landlord elects to include Floors 11 and
12 in the Second Phase, and that portion of the 3,590 square feet of space on
the basement floor not needed for construction and construction access purposes.
The "Second Phase Floors" shall mean the remaining applicable portion of Floor
1, all of Floors 2 and 4, Floors 11 and 12 if not included in the First Phase,
and Floors 3 and 5 and the remaining applicable portion of the
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basement space unless Landlord elects to include Floors 3 and 5 and the
remaining applicable portion of the basement space as Deferred Phase Floors. The
"Deferred Phase Floors" shall mean Floors 3 and 5 and the remaining applicable
portion of the basement space if Landlord elects to exclude such space from the
Second Phase as provided below.
Landlord may deliver the First Phase Floors to Tenant upon sixty (60)
days prior written notice to Tenant and the Second Phase Floors and any Deferred
Phase Floors upon seventy-five (75) days prior written notice to Tenant for each
such phase, provided (i) Landlord may not deliver the First Phase Floors prior
to April 1, 1999 without the prior approval of Tenant, and (ii) Landlord may not
deliver the Second Phase Floors prior to June 1, 1999 (July 1, 1999 if Landlord
exercises the Deferral Option set forth in subsection (i) below) without the
prior approval of Tenant.
With the 60-day delivery date notice for the First Phase Floors,
Landlord shall advise Tenant in writing whether Floors 11 and 12 will be
included in the First Phase. If Landlord does not include Floors 11 and 12 in
the First Phase, Floors 11 and 12 shall automatically be included in the Second
Phase. With the 75-day delivery date notice for the Second Phase Floors,
Landlord shall advise Tenant in writing whether Floors 3 and 5 and the remaining
applicable basement space will be included in the Second Phase. If Landlord does
not include such space in the Second Phase, such space shall automatically
become the Deferred Phase Floors.
Except as expressly set forth in subsection (i) below, Landlord may
deliver portions of the Premises as to a full phase only, unless Tenant
otherwise agrees in writing.
The event referred to herein as "Substantial Completion" (or the
condition referred to herein as "Substantially Complete") as to a phase shall
mean the event or condition of "substantial completion" as that term is used in
the construction industry, as to all the space in such phase. The date a phase
is Substantially Complete shall be as certified by the architect engaged to
design the Tenant Improvements (the "TI Architect), in the TI Architect's
reasonable opinion, in writing (using AIA Form G704) with a copy to Tenant, and
shall not occur or exist until the applicable governmental building inspector
has checked off the applicable portion of the Premises as Approved for Occupancy
on the Building Inspection Report (as those terms are used by the applicable
inspection entities of the City of Seattle). If either party disputes the date
certified by the TI Architect as the date of Substantial Completion for a
particular phase, it must notify the other party within five (5) days after
receipt of the TI Architect's certification (or within five (5) days of the date
Landlord believes to be the date of Substantial Completion for the applicable
phase, if the Architect will not so certify). As part of the process of
certification of Substantial Completion of a particular phase, Landlord shall
schedule an inspection (on not less than five (5) days prior notice), which
inspection shall be attended by Tenant, Landlord, the TI Architect and the
architect engaged to design the building shell improvements (the "Shell
Architect"). Following such inspection (and as part of the certification of
Substantial Completion), the TI Architect shall prepare a "punchlist" (the
"Construction Punchlist") as such term is used in the construction industry. The
existence of defects of a nature commonly found on a punchlist shall not
postpone Substantial Completion of a particular phase or of the Commencement
Date or result in a delay or abatement of Tenant's obligation to pay Rent or
give rise to a damage claim against Landlord. Landlord shall complete all items
on the Construction Punchlist within thirty (30) days after preparation thereof
or commence completion of those items which are not possible to complete within
thirty (30) days, provided that if the Construction Punchlist is for a phase
that is Substantially Complete prior to Premises Delivery for that phase, and
the item is such that it is most efficiently completed as part of Premises
Delivery or of completion of the Construction Punchlist on a later phase, then
Landlord may complete such Construction Punchlist item within thirty days of
Premises Delivery for such later phase. Tenant shall be entitled, for ten (10)
days following Tenant's commencement of beneficial occupancy of a particular
phase, to request the TI Architect to supplement the initial Construction
Punchlist for such phase with additional Construction Punchlist items, provided
that no new defect caused by Tenant, its employees, agents, contractors,
customers or invitees may be included in or added to the Construction Punchlist.
Landlord shall (i) at or before Premises Delivery provide Tenant with keys and a
keying schedule and with Building systems and safety manuals. Any work required
under the Construction Punchlist shall be paid for, to the extent required, in
the same manner (and by the same party(ies) responsible for payment for the
affected work), provided that the costs paid for by Landlord with respect to the
Tenant Improvements shall in no event exceed the amount of the Allowance and the
Additional Allowance, if any.
With Premises Delivery as to the First Phase Floors, Landlord shall use
reasonable efforts to make available at no additional charge to Tenant for
temporary bicycle parking the temporary storage building adjacent to the
Building. Tenant may use such storage building for bicycle parking only until
Premises Delivery has occurred as to the entire Premises.
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(f) Building Systems and Common Areas. Premises Delivery shall not be
deemed to occur as to a particular phase until the following conditions shall
have been satisfied by Landlord:
(i) The utility and other systems servicing the phase and
necessary for the operation of that phase or Tenant's occupancy and full
enjoyment of that phase (such as elevator service, plumbing, heating,
ventilating, air conditioning, electrical and security systems) shall be in good
order and operating condition except for (A) details of construction, decoration
and mechanical adjustments which do not materially interfere with Tenant's use
of the phase, and (B) any part thereof the non-completion of which shall be due
to Tenant Delay, provided, however, (a) as to Premises Delivery of the phases
before the delivery of the last phase, only those elevators designed in the
Plans as early use elevators (and not all elevators) will be available for
access to such phases (the other elevators will be used for construction of the
other phases), and
(ii) The first floor lobby of the Building and the entrances and
public portions (including the garage and surface parking areas), stairways,
corridors and elevators (but only the early use elevators until Premises
Delivery for the entire Premises) of the Building, shall have been finished
(except for details of construction, decoration and mechanical adjustments which
do not materially detract from the appearance of such areas or materially
interfere with their use for normal purposes) and shall be in a clean and
orderly condition affording reasonable access to all portions of the Premises,
or would be in such condition but for Tenant Delay. However, the freight
elevator will be repaired/replaced only after Premises Delivery for the entire
Premises, and one of the general Building elevators will be used for freight
purposes during such time,
(g) Tenant Delay. As used herein, the term "Tenant Delay" shall mean, as
to any delay experienced by Landlord in its work on the Building or the Tenant
Improvements, (a) any interference or delay caused by occurrences within the
reasonable control of Tenant not otherwise permitted under this Lease (i.e.
permitted Tenant approval and construction processes applied within scheduled
time period shall not be deemed Tenant Delay); (b) any delay caused by Tenant's
failure or refusal to furnish plans, or approve or disapprove plans for the
Tenant Improvements, within the periods set out in Exhibit B; (c) any delay
attributable to changes in or additions to Landlord's plans requested by Tenant
beyond the approval process set forth in Exhibit B; (d) any other delay in acts
of Tenant required under Exhibit B, or (e) selection of a Tenant Improvement
contractor other than the contractor selected by Landlord to perform Landlord's
Work, provided that the foregoing clauses (a) through (e) shall apply only to
the extent that such delay, notwithstanding Landlord's reasonable best efforts
to mitigate the delay, actually delays the date of Premises Delivery. Tenant
Delay shall not include delays caused by revisions to Tenant's Plans to meet
historic preservation requirements as set forth in Section 3(m) below.
Landlord shall notify Tenant as soon as reasonably possible when
Landlord becomes aware of an event constituting Tenant Delay. Such notice shall
include a description of the matter constituting Tenant Delay, and Landlord's
good faith estimate of the potential amount of Tenant Delay. Landlord also
agrees to meet and cooperate with Tenant to seek opportunities to minimize
Tenant Delay.
(h) Landlord Delay. As used herein, the term "Landlord Delay" shall mean
(a) any interference or delay caused by occurrences within the reasonable
control of Landlord not otherwise permitted under this Lease, or (b) any delay
caused by Landlord's failure or refusal to either approve or disapprove Tenant's
plan for Tenant Improvements, or to furnish plans, as and within the time
periods specified in Exhibit B hereto, or (c) any delay attributable to changes
in or additions to Landlord's Work or Tenant Improvements requested by Landlord
(including changes under Section 3(m) below) or on account of interference by
Landlord or its contractors, employees or agents, or (d) any delay in Landlord
or Landlord's contractor giving approvals, consents, prices or quotes, or taking
other action with respect to Landlord's Work or Tenant's Improvements, all as
required or contemplated under Exhibit B; provided that the foregoing clauses
(a) through (d) shall apply only to the extent that such delay, notwithstanding
Tenant's reasonable best efforts to mitigate the delay, actually delays the date
of Premises Delivery. Tenant shall notify Landlord as soon as reasonably
possible when Tenant becomes aware of an event constituting Landlord Delay which
notice shall include a description of the matter constituting Landlord Delay and
Tenant's good faith estimate of the potential amount of Landlord Delay.
Landlord shall promptly correct or cause to be corrected all defects in
Landlord's Work and Tenant Improvement work performed by the Tenant Improvement
Contractor, and all failures of such work to conform to the plans and
specifications for such work which have been agreed upon by Landlord and Tenant,
which defects or non-conformities are discovered before or
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within one year after the date upon which Tenant first occupies each phase of
the Premises. Landlord shall bear all costs of correcting Landlord's Work and,
to the extent caused by the act or omission of Landlord, the Tenant
Improvements. Landlord shall cooperate with Tenant, at no additional cost to
Landlord, in establishing warranties within the construction contracts for
Landlord's Work and Tenant Improvements, including such reasonable extended
warranties for items such as roof and HVAC as Tenant may reasonably request.
Landlord and Tenant shall each give the other prompt written notice after
discovering the existence of any such defects or non-conformities in Landlord's
Work and Tenant Improvements.
(i) Projected Delivery Dates; Delay Penalties. Landlord presently
projects issuance of building permits for shell and core renovation to be
September 15, 1998 ("Shell Permit Issuance"). Landlord shall include Tenant's
Representative in all construction and construction scheduling meetings.
The First Phase Floors Projected Delivery Date is sometime in the month
of April, 1999 (with 60 days prior notice as provided in subsection (e) above).
The Second Phase Floors Projected Delivery Date is sometime in the month of
June, 1999 (with 75 days prior written notice as provided in subsection (e)
above). Upon written notice to Tenant on or before December 31, 1998, Landlord
may elect to defer the Second Phase Floors Projected Delay Date to sometime in
the month of July (with 75 days prior written notice as provided in subsection
(e) above) (the "Deferred Option"). The Deferred Phase Floors Projected Delay
Date (if any) shall be within 60 days of delivery of the Second Phase Floors
(with 75 days prior written notice as provided in subsection (C) above).
If Landlord has not achieved Premises Delivery as to the lobby on Floor
1, all of Floors 6, 8, 9 and 10, and that portion of the 3,590 square feet of
space on the basement floor not needed for construction and construction access
purposes (the "Minimum Initial Delivery") on or before May 31, 1999, or if
Landlord has not achieved Premises Delivery as to the remaining applicable
portion of Floor 1 and Floors 2, 4 and 7 (the "Minimum Subsequent Delivery") on
or before July 31, 1999 (August 31, 1999 if Landlord has exercised the Deferral
Option as provided above), or if Landlord has not achieved Premises Delivery as
to all of the remaining Premises by October 31, 1999 (each an "Outside Delivery
Date"), then
(i) Landlord shall use its reasonable best efforts to provide or
secure for Tenant alternative space or expansion space if and to the extent
required by Tenant's inability to obtain holdover rights from its existing
landlords, such space to be within the downtown Seattle area and reasonably
acceptable to Tenant, and Landlord shall pay to the landlord of such alternative
or expansion space (whether such space is provided or secured by Landlord or
through Tenant's own efforts) the differential in base rent and additional rent
required over the amount of base rent and additional rent that Tenant would have
otherwise paid in the Premises had such delay not occurred;
(ii) Landlord shall pay, and shall indemnify, defend and hold
Tenant harmless from and against, any holdover rent premiums or other rent
differential (excluding nominal base rent and any consequential damages payable
to Tenant's current landlords) accruing from and after the date Landlord is
obligated to deliver the completed Premises to Tenant, subject to the extensions
described above; and
(iii) Landlord shall pay all third party costs of a second move,
if required by Tenant, which costs shall include without limitation cabling and
utility installation costs (at a cost not to exceed $3.00 per rentable square
foot for cabling costs) in any alternative or expansion space into which Tenant
moves pending completion of the Premises.
Tenant shall use reasonable efforts to attempt to mitigate
these damages if delays occur for Premises Delivery.
Notwithstanding the foregoing, the Outside Delivery
Deadlines set forth above shall be subject to extension for (i) Tenant Delay,
(ii) scheduled build out delivery, if the good faith estimated schedule to
construct the Tenant Improvements based upon the Final Plans is more than an
average of 10 weeks for each floor in each phase (based upon the staffing
assumptions in the current Project Schedule) (15 weeks as to Floor 2), and (iii)
a delay of up to 4 months caused by Force Majeure, In addition, at any time
prior to February 28, 1999, Landlord may elect upon written notice to Tenant to
extend the Outside Delivery Date for the Minimum Initial Delivery from May 31,
1999 to June 30, 1999, but only if (i) Landlord experiences delays in obtaining
permits and approvals for Landlord's Work and the Tenant Improvements beyond the
number of days set forth in the Project Schedule to obtain such permits and
approvals, and (ii) Landlord reimburses Tenant for 50% of the rent required to
be paid by Tenant to its existing landlord for a one month extension of its
current lease
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in the TRA Building (to June 30, 1999). The Project Schedule shall be the
schedule initialed by Landlord and Tenant simultaneously with the execution of
this Lease.
Notwithstanding the provisions of subsection (e) above, if
Landlord has achieved Premises Delivery as to the Minimum Initial Delivery (but
not the entire First Phase Floors) on or before May 31, 1999 (June 30, 1999 if
extended as provided above), Tenant must take delivery of the Minimum Initial
Delivery on May 31, 1999 (June 30, 1999 if extended), notwithstanding that the
entire First Phase Floors have not been completed. Similarly, if Landlord has
achieved Premises Delivery as to the Minimum Subsequent Delivery on or before
July 31, 1999 (August 31, 1999 if Landlord has exercised the Deferral Option),
Tenant must take delivery of the Minimum Subsequent Delivery on July 31, 1999
(August 31, 1999 if Landlord has exercised the Deferral Option), notwithstanding
that the entire Second Phase Floors have not been completed. If Tenant has been
required to take delivery of the Minimum Subsequent Delivery as provided herein,
Tenant shall not be required to accept delivery of any portion of the remaining
Premises except upon Premises Delivery as to the entire remaining Premises.
(j) Confirmation of Commencement Date: Within ninety (90) days
after Premises Delivery as to the First Phase Floors (or the Minimum Initial
Delivery, if applicable) Landlord and Tenant shall confirm the Commencement Date
in writing.
(k) Expiration Date: This Lease shall expire on the date
specified in Section l(g).
(1) Force Majeure: For purposes of this Lease, Force Majeure
shall mean and include all matters beyond the reasonable control of Landlord
(financial inability excepted), including weather, strikes, lack of labor or
materials, war, insurrection, riots, and other natural disasters, and similar
matters. However, for purposes of calculating the Outside Delivery Dates, Force
Majeure shall not include any delays in obtaining permits and approvals for
Landlord's Work and the Tenant Improvements.
(m) Historic Tax Credit Matters. Tenant acknowledges that
Landlord intends to seek qualification for historic tax credits for all or
portions of Landlord's Work and the Tenant Improvements, and Tenant agrees to
cooperate with the reasonable requests of Landlord with respect thereto.
However, if Landlord requires changes in Tenant's Plans in connection with
seeking qualification for historic tax credits based upon the review of such
plans by the State Office of Archeology and Historic Preservation or the
National Parks Service, (i) Landlord shall reimburse Tenant for the reasonable
costs incurred by Tenant to make such changes (including additional construction
costs, if any, to incorporate such changes into Tenant Improvements), and (ii)
any delays in making such changes shall constitute Landlord Delay, and shall not
be Tenant Delay or constitute Force Majeure hereunder.
4. TERMINATION; CONDITIONS PRECEDENT:
(a) Landlord anticipates that commencement of construction of
Landlord's Work and Tenant Improvements shall occur on or before the date that
is ten (10) weeks after Tenant has delivered to Landlord four (4) sets of Final
Plans for the First Phase Floors, complete and ready for building permit
submission, pursuant to Exhibit B. If, notwithstanding Landlord's reasonable
best efforts (including reasonable efforts to obtain permits, secure financing
and qualify for historic tax credits), Landlord has not commenced construction
of Landlord's Work and the Tenant Improvements by January 31, 1999 (provided,
however, that such date shall be extended for delays due to Tenant Delay), then,
in such event, at its option, either Landlord or Tenant may, by notice in
writing to the other within thirty (30) days thereafter, terminate this Lease
without liability to the other, except as hereinafter provided. Termination
under this Section 4(a) shall be the sole remedy at law or equity of Landlord
and Tenant.
(b) For the purposes of this Lease, "commencement of
construction," "commenced construction," construction has commenced,"
"commencement of construction has occurred" and "commencing construction" shall
mean Landlord has commenced work pursuant to a building permit for work defined
in the construction documents for the renovation of the shell and core of the
Building.
5. RENT AND ADDITIONAL RENT: Tenant shall pay Landlord without notice
the Rent stated in Section 1(h) hereof and Additional Rent as provided in
Section 9 and Section 10 and any other payments due under this Lease without
deduction or offset (except as otherwise set forth in this Lease) in lawful
money of the United States in advance on or before the first day of each month
at
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Landlord's Payment Address set forth in Section 1(n) hereof, or to such other
party or at such other place as Landlord may hereafter from time to time
designate in writing. Rent and Additional Rent for any partial month at the
beginning or end of the Lease term shall be prorated in proportion to the number
of days in such month. All amounts which Tenant assumes or agrees to pay to
Landlord pursuant to this Lease other than Rent shall be deemed Additional Rent
hereunder and, in the event of nonpayment thereof, Landlord shall have all
remedies provided for in the case of nonpayment of Rent.
6. SECURITY DEPOSIT/CREDIT DEVICE: The Security Deposit shall be
delivered to Landlord within twenty (20) days following the execution of this
Lease by Tenant and shall be held by Landlord without liability for interest
(except as required by law) and as security for the performance of Tenant's
obligations under this Lease. The Security Deposit shall not be considered an
advance payment of Rent or a measure of Tenant's liability for damages. Landlord
may, from time to time, without prejudice to any other remedy, use all or a
portion of the Security Deposit to make good any arrearage of Rent, to repair
damages to the Premises, to clean the Premises upon termination of this Lease or
otherwise to satisfy any other covenant or obligation of Tenant hereunder.
Following any such application of the Security Deposit, Tenant shall pay to
Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. Commencing with the Second Lease Year, and on
the first day of each subsequent Lease Year, and provided that Tenant is not
then in default hereunder, the Security Deposit shall be reduced by $2.50 per
rentable square foot of the Premises until the deposit is reduced to $10.00 per
rentable square foot of the Premises. Any remaining Security Deposit if in cash
may at Tenant's election be applied towards Rent during the last six months of
the term (which if extended as provided in Exhibit C, shall be the last six
months of such extended term). If Tenant is not in default at the termination of
this Lease, after Tenant surrenders the Premises to Landlord in accordance with
this Lease and all amounts due Landlord from Tenant are finally determined and
paid by Tenant or through application of the Security Deposit, the balance of
the Security Deposit remaining after any such application shall be returned to
Tenant. Any assignment of this Lease by Landlord, whether voluntary or through
involuntary assignment or transfer such as bankruptcy or foreclosure, shall
automatically and without further action by either party cause an assignment of
the Security Deposit (whether cash, marketable securities, or a letter of
credit) to the assignee (and the parties shall execute such documents as
necessary to reflect such assignment), and upon the assignee's assumption of
Landlord's obligations under this Lease (including Landlord's obligations with
respect to the Security Deposit), Landlord thereafter shall have no further
liability for the return of such Security Deposit and in such circumstances
Tenant agrees to look solely to such transferee or assignee for the return of
the Security Deposit. Landlord and its successors and assigns shall not be bound
by any actual or attempted assignment or encumbrance of the Security Deposit by
Tenant, provided, however, if Tenant's interest in this Lease has been assigned,
Landlord shall, provided that Landlord has been furnished with a fully executed
copy of the agreement assigning such Security Deposit, return the Security
Deposit to such assignee in accordance with the terms and conditions hereof. If
Landlord returns the Security Deposit to Tenant's assignee as aforesaid,
Landlord will have no further obligation to any party with respect thereto.
Landlord shall not be required to keep the Security Deposit separate from its
other accounts.
At the option of Tenant, Tenant may elect to provide all or any portion
of the Security Deposit in the form of a letter of credit (the "LOC"). The LOC
shall be an irrevocable and unconditional letter of credit, issued by a
financial institution with offices in Seattle, Washington, satisfactory to
Landlord and with a term of at least one year, and drawable by Landlord upon
presentation. Landlord may draw upon the LOC under the same terms and conditions
as Landlord may apply a cash Security Deposit. In addition, Landlord may draw
upon the LOC if Tenant fails to deliver to Landlord no later than thirty (30)
days prior to the expiration date of the existing LOC a renewal or extension of
the LOC for a term of not less than one year. Notwithstanding the foregoing,
and unless a renewal or extension of the LOC has not been delivered to Landlord
within 10 days prior to the expiration date of the existing LOC, Landlord will
give Tenant 3 days prior written notice before drawing upon the LOC.
If Tenant elects to post a LOC, Landlord agrees to reimburse Tenant for
the actual costs incurred by Tenant to obtain the LOC, not to exceed one-half of
one percent of the amount of the LOC. Such reimbursement shall be a one time
expense only, and Tenant shall be responsible for all other costs of obtaining
the LOC, including future renewal fees, if any.
At the option of Tenant, Tenant may elect to provide all or any portion
of the Security Deposit by pledging for the benefit of Landlord marketable
securities with a value equal to the amount then required as the Security
Deposit. The pledge shall be of short to intermediate term fixed income
marketable securities, including money market funds, rated A- or better by
Standard and Poors, or A3 by Moody's Investor Services, from Tenant's corporate
cash investment portfolio. The pledged marketable securities shall be held by a
bank or financial institution mutually approved by Landlord and Tenant as
custodian for Landlord, either in a separate custodian account or as specially
designated
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securities within a larger custodian account. The pledge must be in a form
satisfactory to Landlord and provide Landlord with a perfected first lien
security interest in the pledged securities. The pledge and custodian documents
must also include a direct access authorization which would permit Landlord,
without approval of Tenant, to authorize the sale of the securities and the
withdrawal of the proceeds thereof (not to exceed the amount of the then
required Security Deposit) for application by Landlord on the same terms and
conditions as Landlord could draw on a LOC.
Tenant shall be entitled to retain all interest and other income capital
gains earned or generated by the pledged securities.
At all times, the value of the pledged securities must equal or exceed
the amount of the then required Security Deposit. If the value of the pledged
securities drops below the amount of the then required Security Deposit, Tenant
shall immediately add additional marketable securities to the pledge to increase
the value of the pledged securities to equal or exceed the amount of the then
required Security Deposit, and the failure of Tenant to do so within 3 business
days of a written request from Landlord shall constitute a default hereunder.
Tenant shall have the right to substitute additional marketable
securities for the securities subject to the pledge, provided Landlord obtains a
perfected first lien security interest in the substituted securities prior to
the release of the pledged securities.
The amount of the security deposit/credit device shall be reduced by 50%
of the amount then posted (and the annual reduction amount shall be decreased by
50%) at such time as (i) Tenant has reported positive and increasing cash flow
for four consecutive quarters of no less than $1,250,000 per quarter (for the
purposes of this particular measure, cash flow shall be defined as aggregate
company earnings before income taxes, depreciation and amortization), and (ii)
Tenant has obtained an investment credit rating from Moody's Investor Services
of at least Baa3 or from Standard and Poor's of BBB-. The amount of the security
deposit/credit device shall be reduced to $0 immediately following the point at
which (i) Tenant has reported positive and increasing cash flow for eight
consecutive quarters of no less than $1,250,000 per quarter (again, cash flow
shall be defined as aggregate company earnings before income taxes, depreciation
and amortization), and (ii) Tenant has obtained an upper medium grade credit
rating from Moody's Investor Services of at least A3, or from Standard and
Poor's of A-.
7. PARKING: Use of parking in the garage and adjacent surface parking
lots by Tenant shall be subject to such reasonable non-discriminatory rules and
regulations as Landlord may publish from time to time.
8. USES: The Premises are to be used only for general office purposes, a
data center, and other uses incident thereto ("Permitted Uses"), and for no
other business or purpose without the prior written consent of Landlord, which
consent may be withheld if Landlord, in its reasonable discretion, determines
that any proposed use is inconsistent with or detrimental to the maintenance and
operation of the Building as a first-class office building or is inconsistent
with any restriction on use of the Premises, the Building, or the Land contained
in any lease, mortgage, or other instrument or agreement by which the Landlord
is bound or to which any of such property is subject, all as of the date of full
execution of this Lease ("Restriction Documents"). Governmental laws and
regulations general to the area that are not specific to the Building shall not
be deemed Restriction Documents. Landlord shall list, in Exhibit H, all
Restriction Documents of which it is aware. Landlord warrants to its knowledge,
without independent duty of inquiry or investigation, that there currently are
no Restriction Documents other than those listed on Exhibit H. The provisions of
any Restriction Documents shall not affect, limit or reduce the obligations of
Landlord under this Lease. Tenant shall not commit any act that will increase
the then existing cost of insurance on the Building without Landlord's consent.
Tenant shall promptly pay upon demand the amount of any increase in insurance
costs caused by any act or acts of Tenant other than the permitted uses. Tenant
shall not commit or allow to be committed any waste upon the Premises, or any
public or private nuisance or other act which disturbs the quiet enjoyment of
any other tenant in the Building or which is unlawful. Tenant shall not, without
the written consent of Landlord, use any apparatus, machinery or device in or
about the Premises which will cause any substantial noise, vibration or fumes.
Landlord hereby consents to the installation, periodic testing, and use in an
emergency of Tenant's backup generators or in locations reasonably approved by
Landlord. Tenant shall not permit smoking in the Premises or in any other
location in which smoking is prohibited under the REA; Landlord has designated
all internal portions of the Building as a smoke-free zone. If any of Tenant's
office machines or equipment should materially disturb the quiet enjoyment of
any other tenant in the Building, then Tenant shall provide adequate insulation,
or take other action as may be necessary to eliminate the disturbance. Subject
to Landlord's responsibility with respect to initial delivery of the Premises,
and except as may
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be inconsistent with Landlord's maintenance obligations pursuant to Section 11,
Tenant shall comply with all laws relating to its use or occupancy of the
Premises, including without limitation any laws relating to Tenant's
modification of the Premises, and shall observe such reasonable
non-discriminatory rules and regulations (not inconsistent with the terms of
this Lease) as may be adopted and made available to Tenant by Landlord from time
to time for the safety, care and cleanliness of the Premises or the Building,
and for the preservation of good order therein.
9. SERVICES AND UTILITIES:
(a) Standard Services: Landlord shall maintain or cause to be
maintained in good order and repair and first-class condition the Premises and
the core area of the Building, the structural portions of the Building,
including elevators, plumbing, air conditioning, heating and electrical system,
and the public and common areas of the Building, including lobbies, elevators,
stairs, corridors and restrooms, except for fire and other casualty, including
acts of God, and subject to the provisions of Section 13 pertaining to the
repair or rebuilding of damaged or destroyed property. Landlord shall also
maintain and keep in good order and repair the following in the Building: roof,
all exterior doors, including any exterior plate glass within the Building,
exterior surfaces of the Building (including but not limited to glass, stone and
other material(s)), ventilating systems, elevators, janitor closets, escalators,
telephone and electrical closets, public portions of the Building, balconies,
landscaping, walkways, and, other than Tenant improvements, other interior
portions of the Building above and below grade. Landlord covenants and agrees
that alterations, repairs or additions shall be done with the least amount of
interference to Tenant and with reasonable prior notice to Tenant, and, to the
extent possible, such work shall be done after Normal Business Hours. Nothing
contained herein shall be deemed to excuse or relieve Landlord from any
liability for the negligence or willful misconduct of Landlord, its officers,
agents, servants, employees, contractors, licensees or invitees.
(b) Normal Business Hours: From 7:00 a.m. to 6:00 p.m. on
weekdays and from 8:00 a.m. to 1:00 p.m. on Saturdays, excluding legal holidays
("Normal Business Hours"), Landlord shall furnish to the Premises heat and air
conditioning sufficient to maintain a comfortable interior temperature range
between 69 and 72 degrees Fahrenheit. Landlord shall provide 24-hour per day
HVAC service in the telephone and computer rooms pursuant to final construction
documents; the capacity for which service shall be paid for by Tenant from the
Tenant Allowance described in Exhibit B. If requested by Tenant, Landlord shall
furnish heat and air conditioning at times, other than Normal Business Hours and
the actual cost of such services shall be paid by Tenant as Additional Rent. If
such additional services are reasonably estimated to advance the date on which
the HVAC system requires replacement (i.e. excluding advancement of routine
repairs and component replacements covered by the HVAC maintenance contract or
otherwise passed through to Tenant as Operating Costs), then Landlord shall be
entitled to charge Tenant an amount equal to the present value of Landlord's
Early Replacement Cost, (an example calculation is attached as Exhibit J).
During other than Normal Business Hours, Landlord may restrict access to the
Building in accordance with the Building's security system, provided that Tenant
shall have at all times during the term of this Lease (24 hours of all days)
reasonable access to the Premises. The Normal Business Hours may be modified
from time to time upon the mutual agreement of Landlord and Tenant.
(c) interruption of Services: Landlord shall not be liable for
any loss, injury or damage to person or property caused by or resulting from any
variation, interruption, or failure of any services or facilities provided by
Landlord pursuant to this Lease due to any cause whatsoever, unless such
variation, interruption or failure was due to the negligence or willful
misconduct of Landlord, its officers, agents, servants, employees, contractors,
licensees or invitees. No temporary interruption or failure of such services or
facilities incident to the making of repairs, alterations, or improvements, or
due to accident, strike or conditions or events beyond Landlord's reasonable
control shall be deemed an eviction of Tenant or relieve Tenant from any of
Tenant's obligations hereunder; provided, however, if such interruption or
failure shall continue for five (5) business days, Tenant's Rent hereunder shall
thereafter abate to the extent the Premises are thereby rendered untenantable
for Tenant's normal business operations until such services are restored. In the
case of an interruption or failure due to Landlord's acts or omissions, or where
the restoration thereof is within Landlord's control, and the interruption
continues for more than ten (10) business days, then it shall be treated as an
event of "Damage or Destruction" pursuant to Section 13. Landlord shall use its
best efforts in good faith to respond quickly to any interruption of services
and to minimize any disruption of Tenant's use of the Premises arising from any
interruption or failure of such services or facilities.
(d) Additional Services: The Building mechanical system is
designed to accommodate heating loads generated by lights and equipment using up
to 4.0 watts per square foot (1.2 watts per foot for lights and 2.8 watts per
foot for equipment). Before installing lights and equipment in the Premises
which in the aggregate exceed such amount, Tenant shall obtain the written
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permission of Landlord. Landlord may refuse to grant such permission unless
Tenant shall agree to pay the costs of Landlord for installation of
supplementary air conditioning capacity or electrical systems as necessitated by
such equipment or lights.
(e) Security: Landlord shall provide a security guard in the
Building who will be available to escort Tenant's employees to their vehicle
parked after hours on the surface parking lots adjacent to the Building. In
addition, a card-key security system with an initial one thousand (1,000) cards
shall be installed with card readers at the entrance to the Building and the
elevators by Landlord and paid for as part of Landlord's Work. Card-key readers
beyond the main entrance and the elevators may be installed at Tenant's cost.
All such security services provided by Landlord (except the initial Landlord's
Work) shall be included in Operating Costs, as defined below.
(f) Special Utility Providers. To the extent that the utility
provider for a specified utility (e.g., electricity and fiberoptics) is subject
to competitive selection by Tenant, Landlord or by the owner of the Building,
then so long as (i) Tenant occupies at least seventy percent (70%) of the
Building, (ii) the utility provider and system desired by Tenant will not create
any materially increased risk of damage to Building systems, (iii) Landlord is
entitled at no cost to Landlord to terminate the alternative provider and return
to the original provider at the termination of this Lease, (iv) the physical
installation of equipment by such alternative provider and the technical
specifications related thereto is subject to Landlord's reasonable review and
approval, (v) such alternative provider executes a restoration agreement with
Landlord, and (vi) all of the alternative provider's equipment is installed in
the Premises demised by Tenant, then Tenant shall be entitled to direct the
selection of the utility provider to supply such utility service.
(g) Emergency-Generator. So long as Landlord elects to maintain
the existing emergency generator in the outbuildings adjacent to the Building
(which Landlord may discontinue at any time), Tenant shall have the right to use
such emergency generator in common with the other tenants and uses of the
Building, and the costs to operate and maintain such emergency generator shall
be an Operating Cost hereunder. If Landlord discontinues use of the existing
emergency generator, Tenant may at Tenant's cost install an emergency generator
in the Premises at a location reasonably satisfactory to Landlord.
10. COSTS OF OPERATIONS AND REAL ESTATE TAXES:
(a) Additional Rent: Tenant shall pay as Additional Rent its Pro
Rata Share of Taxes and Operating Costs. Taxes and Operating Costs shall be
determined and shall be payable separately in accordance with the provisions of
this Section 10.
(b) Definitions:
(i) For the purposes of this section, "Taxes" shall mean
taxes and assessments (including special district levies) on real and personal
property payable during any calendar year, based on the actual assessment
period, with respect to the Land, the Building and all property of Landlord,
real or personal, used directly in the operation of the Building and located in
or on the Building, together with any taxes levied or assessed in addition to or
in lieu of any such taxes or any tax upon leasing of the Building or the rents
collected (excluding any net income, estate or franchise tax), but specifically
including statutory leasehold excise tax if required ("Taxes").
(ii) For purposes of this Section, "Operating Costs" or
"Costs" shall mean all reasonable and customary expenses of Landlord for
maintaining, operating and repairing the Building and the personal property used
in connection therewith, including without limitation all costs or expenses
imposed on Landlord pursuant to the REA, insurance premiums, utilities, market
rate management fees for similarly tenanted buildings (not to exceed four
percent (4%) of the Rent and Additional Rent of the entire Building, including
without limitation an imputed fair market rental value of portions of the
Building occupied from time to time by PMC and/or its affiliates) and other
expenses which in accordance with generally accepted accounting and management
practices would be considered an expense of maintaining, operating or repairing
the Building ("Operating Costs" or "Costs"); excluding, however: (I) costs of
any special services rendered to individual tenants for which a separate charge
is collected; (II) leasing commissions and other leasing expenses; (III) costs
of improvements, replacements and repairs required to be capitalized in
accordance with generally accepted accounting principles, except Operating Costs
shall include amortization of capital improvements, replacements and repairs (A)
made subsequent to initial development of the Building which are designed with a
reasonable probability of improving the operating efficiency of the Building, or
providing savings in the cost of operating the Building at least equal to the
amortization charge or, (B) which are reasonably responsive to requirements
imposed with respect to the Building under any amendment to any applicable
building, health, safety, fire, nondiscrimination, or similar law
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or regulation ("law"), or any new law, or any new interpretation of an existing
law ("new interpretation"), which amendment, law or new interpretation is
adopted or arose after the Commencement Date of this Lease (for purposes of this
Lease, a new interpretation shall mean any interpretation, enforcement or
application of a law enacted prior to the Commencement Date that imposes
requirements with respect to the Building that Landlord in the exercise of sound
business judgment and good faith at the time of Landlord's execution of this
Lease would not have deemed applicable to the Building); (IV) executives'
salaries above the grade of Building manager; (V) amounts received by Landlord
through proceeds of insurance to the extent the proceeds are compensation for
expenses which were previously included in Operating Costs hereunder (with
receipts relating to any prior year being the subject of a special
reconciliation); (VI) cost of repair or replacements incurred by reason of fire
or other casualty or by the exercise of the right of eminent domain; (VII)
consulting fees relating to marketing, advertising or promotional efforts, and
other marketing fees, advertising and promotional expenditures; (VIII) legal
fees in connection with the negotiation and preparation of leases of space or
legal fees in connection with the sale of all or any portion of the Building in
which the Premises are located, or an interest therein, or the financing or
refinancing of Landlord's interest in all or any portion of the Building in
which the Premises are located, or in connection with disputes with tenants, and
legal and auditing fees, other than legal and auditing fees reasonably incurred
in connection with the maintenance and operation of all or any portion of such
Building or in connection with the preparation of the statements required
pursuant to additional rent or lease escalation provisions contained in leases
of space in such Building; (IX) depreciation or loan payments; (X) costs
resulting from the correction of any latent construction defects in all or any
portion of the Premises or Building; (XI) penalties due to any violation of law
by Landlord or other tenants; (XII) costs of preparing tenant space for tenant
occupancy; (XIII) except for REA-related expenses, costs allocable to properties
in which Landlord has an interest other than the Building and Land; (XIV)
damages incurred by Landlord for any default, breach, claim, Judgment or
settlement; (XV) structural improvements, replacements or repairs (including
replacements or structural repairs to the roof and foundations); rental on
ground leases or other underlying leases and capital improvements, replacements
or repairs to parking facilities; (XVI) any liabilities, costs or expenses
associated with or incurred in connection with the removal, enclosure,
encapsulation or other handling of asbestos or other hazardous or toxic
materials or substances existing in the Project as of the Commencement Date
(except where required to comply with laws, ordinances, regulations, or codes as
adopted, amended, enacted or reinterpreted subsequent to the Commencement Date)
or brought onto the Project after the Commencement Date by Landlord, its
employees, agents or contractors; (XVII) payments to a person, firm, corporation
or other entity related to Landlord that is in excess of the amount which would
have been paid in the absence of such relationship; (XVIII) cost of acquiring
sculptures, paintings and other art objects; (XIX) charitable or political
contributions. Further, if there is a separate charge to Tenant, other tenants
or the public for parking, then real property taxes associated with the parking
operations shall be excluded from Operating Costs except to the extent such
costs exceed the parking charges collected by Landlord (insurance and
maintenance costs for parking operations shall be paid as provided in subsection
(1) below); and if Tenant pays or provides directly for any service or repair
category within the Premises (such as relamping of fixtures or provision of
janitorial services), then those services or category of repairs (to the extent
provided to other premises in the Building) shall be excluded in calculating
Operating Costs allocable to Tenant. In no event shall Landlord collect more
than 100% of Operating Costs and Taxes from Tenant and other tenants of the
Property.
(iii) "Year" shall mean the calendar year.
(c) Estimated Costs: At least sixty (60) days prior to the
beginning of each Year, Landlord shall furnish Tenant a written statement of
estimated Operating Costs and Taxes for such year and a calculation of Tenant's
Pro Rata Share of the Operating Costs and Taxes. Tenant shall pay one-twelfth
(1/12) of that amount as Additional Rent for each month during the Year. If at
any time during the Year Landlord reasonably believes that the actual Operating
Costs or Taxes will vary from such estimated Operating Costs or Taxes by more
than five percent (5%), Landlord may by written notice to Tenant revise the
estimate for such year, and Additional Rent for the balance of such Year shall
be paid based upon such revised estimates. Landlord and Tenant may also agree
that Tenant will pay certain Operating Costs directly to the provider thereof.
Projected Taxes and Operating Costs for calendar year 1999 are as set forth in
Exhibit G hereto; provided that nothing therein shall be deemed a representation
or warranty as to the items or amounts described therein.
(d) Actual Costs: Within ninety (90) days after the end of each
Year, Landlord shall deliver to Tenant a written statement setting forth
Tenant's Pro Rata Share of the actual Operating Costs and Taxes during the
preceding Year. Landlord shall be entitled to correct such statement to increase
the amounts charged to Tenant only if such correction is made within three (3)
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years after the initial delivery of the statement to Tenant (or such longer
period in the case of increased actual Taxes billed to Landlord by applicable
taxing authorities). If the actual Operating Costs or actual Taxes, or both,
exceed the estimates for each paid by Tenant during the Year, Tenant shall pay
the amount of such excess to Landlord as Additional Rent within thirty (30) days
after receipt of such statement. If the actual Operating Costs or actual Taxes,
or both, are less than the amount paid by Tenant to Landlord, then the amount of
such overpayment by Tenant shall be, at Landlord's option, credited against any
amounts owed by Tenant under this Lease, refunded by check to Tenant (which
shall occur if the reconciliation is after termination of this Lease), or
credited against the next Rent payable by Tenant hereunder. Notwithstanding this
Section 10, the Rent payable by Tenant shall in no event be less than the Rent
specified in Section 1(h) hereof.
(e) Records and Adjustments: Each written statement of actual
costs given by Landlord to Tenant pursuant to Section 10(d) shall be conclusive
and binding upon Tenant unless within six (6) months after the receipt of such
statement Tenant shall notify Landlord in writing that it questions charges
under the statement, specifying the particular respects in which the statement
is questioned. If such disputes shall not have been settled by agreement,
Tenant, within thirty (30) days of receipt of such statement, shall pay
Additional Rent in accordance with the statement, without prejudice to Tenant's
favor. If the dispute shall be determined in Tenant's favor, Landlord shall
forthwith pay to Tenant the amount of Tenant's overpayment of rents resulting
from compliance with the statement. Tenant may, within six (6) months after the
receipt of such statements, upon thirty (30) days prior notice to Landlord,
cause a complete audit to be made of Landlord's records regarding Operating
Costs for the prior Year. If the audit discloses that Operating Costs have been
over-reported to the extent of five percent (5%) or more on an annual basis for
such Year, then (i) Landlord shall pay the reasonable costs of the audit and
actual Operating Costs for that Year shall be adjusted accordingly and (ii)
Tenant shall be entitled to audit the three (3) years prior to the year for
which the adjustment is made to determine whether a similar adjustment is
applicable to such prior years (in which case such prior years shall be
similarly adjusted).
(f) Personal Property Taxes: Tenant shall pay all personal
property taxes with respect to property of Tenant located on the Premises or in
the Building. "Property of Tenant" shall include all improvements which are paid
for by Tenant (other than from the Allowance) and "personal property taxes"
shall include all property taxes assessed against the property of Tenant,
whether assessed as real or personal property.
(g) Contest of Taxes; Substantiation of Taxes: Landlord shall, if
Tenant so requests, take all reasonable action necessary to preserve the right
to contest any Taxes, including paying them under protest, and shall consult
with Tenant, and act in good faith in cooperation with Tenant to contest or seek
recovery of Taxes if and to the extent such action is reasonable. Any payment of
Taxes by Tenant either directly or by way of reimbursement to Landlord pursuant
to any provision of this Lease shall be, whenever such Taxes have not been
directly assessed against Tenant, subject to appropriate substantiation by
Landlord upon the request of Tenant. All costs incurred by Landlord in any such
contest, including attorneys' fees and court costs, shall be considered Taxes
for purposes of this Lease.
(h) Cooperation. Landlord and Tenant acknowledge that, but for
relatively limited spaces within the Building occupied by PMC, the Building is
wholly occupied by Tenant. Landlord acknowledges Tenant's concern that Landlord
will have no economic motive to limit the amount of short term operating costs,
including but not limited to matters such as insurance, security services,
janitorial contracts and roof and HVAC maintenance contracts. Landlord agrees
that, if Tenant so elects and appoints a Tenant Facility Coordinator, Landlord
shall permit the Tenant Facility Coordinator to review (but not disapprove) the
annual budget and to meet with the Tenant Facility Coordinator on a quarterly
basis regarding Operating Costs and the entry into maintenance and service
contracts. Except in an emergency, and with respect to Operating Costs
reasonably controllable by Landlord (i.e., by way of example only and without
limitation, not including Taxes or insurance expenses), Landlord shall not enter
into any unbudgeted contract for more than Ten Thousand Dollars ($10,000)
without prior consultation with (without, however, the necessity of obtaining
the approval of) the Tenant Facility Coordinator. Landlord shall manage the
Building consistent with the efficiencies and economies that are practiced by
experienced and sophisticated property owners in multi-tenant high rise office
buildings in the downtown Seattle area (which, so long as the Building is
managed by Wright Runstad & Company, shall be efficiencies and economies
practiced by Wright Runstad & Company in multi-tenant high-rise office buildings
owned or managed by Wright Runstad & Company in the downtown Seattle area).
Disputes regarding the efficiencies and economies of the management of the
Building shall be subject to arbitration provisions set forth in Exhibit I
attached hereto.
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(i) Gross Up. In the event the Building for any Year was not full
occupied, then the estimated Operating Costs and the actual Operating Costs for
such Year shall be proportionally adjusted by Landlord to reflect those costs
which would have occurred had the Building been fully occupied during such Year,
employing sound accounting and property management principles.
(j) Phase In. Until such time as Premises Delivery has occurred
as to the entire Premises, Tenant's Pro Rata Share shall be adjusted based upon
the net rentable square feet of the Premises then delivered to Tenant (excluding
Storage Space) in relation to the net rentable square feet of the Building
(excluding Storage Space).
(k) Special Rules for Leasehold Excise Taxes. If the leasehold
excise tax under Chapter 82.29A RCW is imposed on the rent payable by Landlord
to PMC under the Ground Lease and if the Ground Lease covers less than the
entire Building, Tenant's Pro Rata Share of such leasehold excise tax shall be
the net rentable area of the Premises (exclusive of Storage Space) in relation
to the net rentable area of the portion of the Building covered by the Ground
Lease (exclusive of Storage Space).
(l) Parking Matters. In addition to the payment of parking fees
as provided herein, Tenant shall reimburse Landlord for Tenant's pro rata share
of (i) the costs to provide insurance for such parking areas (including physical
damage, liability and similar insurance for any parking structures), and (ii)
the costs of routine maintenance and upkeep of such parking areas and structures
(including routine sweeping, cleaning and striping, but excluding capital
repairs and improvements not caused by Tenant). For such purposes, Tenant's pro
rata share shall be based upon the number of parking spaces in the parking areas
or structures designated by exclusive use by Tenant in relation to the total
number of parking spaces within such parking areas or structures.
11. CARE OF PREMISES; ALTERATIONS: Landlord shall perform all normal
maintenance and repairs reasonably determined by Landlord, or as notified by
written notice from Tenant, as necessary to maintain the Premises and the
Building as a first-class office building; provided that Landlord shall not be
required to maintain or repair any property of Tenant or any appliances (such as
refrigerators, water heaters, microwave ovens, and the like) which are part of
the Premises. Landlord shall promptly, upon written notice from Tenant and at
Landlord's sole expense repair or remedy any defect in the Building or Premises
(excluding inadequacies in building systems or similar defect to the extent
created or exacerbated by, or originating from any plans or specifications
provided by, Tenant or it's architects, space planners, contractors or agents)
existing as of the Commencement Date of the Lease and any condition that, as of
the Commencement Date, constituted a violation of applicable law as then
interpreted and enforced. Tenant shall take good care of the Premises.
Tenant shall not make any alterations, additions or improvements
which constitute a structural change to the Building or materially alters the
HVAC system, electrical service or plumbing system ("Alterations") in or to the
Premises, or make changes to wiring affecting Building-wide systems ("Changes")
without first obtaining the written consent of Landlord and, where appropriate,
in accordance with plans and specifications approved by Landlord. Landlord shall
not unreasonably withhold consent to Alterations or Changes to the HVAC system,
electrical system or plumbing system that do not otherwise materially affect
Building systems or increase Operating Costs after Tenant vacates the Premises,
are consistent with sound engineering practices, and do not adversely affect the
leasability of the Premises following termination of this Lease As a condition
to its approval, and only if so stated in writing at the time of such approval,
Landlord may require Tenant to remove any such Alterations or Changes which are
not designed in a normal or standard office configuration upon the expiration or
earlier termination of the Term and to restore the Premises to the condition
they were in prior to such Alterations or Changes, including restoring any
damage resulting from such removal, all at Tenant's expense. Tenant shall
reimburse Landlord for any reasonable out-of-pocket sums expended for
examination and approval of the architectural and mechanical plans and
specifications of the Alterations and Changes (provided that Landlord shall have
given Tenant a good faith estimate of such sums in advance) and direct costs
reasonably incurred during any inspection or supervision of the Alterations or
Changes. All damage or injury done to the Premises or Building by Tenant or by
any persons who may be in or upon the Premises or Building with the express or
implied consent of Tenant, including but not limited to the cracking or breaking
of any glass of windows and doors, shall be paid for by Tenant (except to the
extent inconsistent with the waiver of claims and subrogation rights set forth
in Section 14 below).
Tenant may make nonstructural alterations, additions or
improvements to the interior of the Premises, including wiring within the
Premises, nonstructural partitioning, and painting and redecorating, without the
necessity of obtaining Landlord's consent, provided in all such cases (other
than cabling, painting or decoration solely within the Premises) Tenant shall
give Landlord five (5)
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business days' prior written notice of such modifications. Any such alterations,
additions or improvements shall be installed by Tenant at its sole cost and in
compliance with all laws, orders and regulations of any applicable governing
body and Tenant at its expense shall furnish to Landlord drawings for such work
to enable the Building's record drawings to be updated to reflect such changes.
Notwithstanding any of the foregoing, Tenant is aware that the
Building and Land is listed on the National Register of Historic Places and is
designated a historical landmark by the City of Seattle Landmarks Preservation
Board. As a result, any modifications to the Building exterior or interior may
be subject to certain extraordinary requirements or approvals, as a result of
those designations or otherwise, and Tenant acknowledges that it shall be
Tenant's obligation to obtain those approvals if needed for any alterations or
changes. Landlord shall cooperate with Tenant in obtaining such approvals, but
Landlord shall have no liability if those approvals are not or cannot be
obtained.
12. ACCESS:
Tenant shall permit Landlord and its agents to enter into and
upon the Premises at all reasonable times, on reasonable prior notice, for the
purpose of inspecting the same or for the purpose of cleaning, repairing,
altering or improving the Premises or the Building. Upon reasonable notice, and
subject to Tenant's reasonable consent, Landlord shall have the right to enter
the Premises for the purpose of showing the Premises to prospective tenants
within the period of one hundred eighty (180) days prior to the expiration or
sooner termination of the Lease term. Tenant may install keyed, combination or
cipher locks on interior doors of the Premises. The security system may include,
but not be limited to, pass card door lock systems and camera surveillance
systems. Tenant shall furnish Landlord with a key for any interior locks
installed by Tenant. At the expiration of the Lease, Tenant at its own cost
shall remove all interior locks installed by Tenant and replace all standard
locks removed by Tenant and shall repair any damage resulting therefrom.
Landlord will adhere to reasonable security restrictions and controls of Tenant.
Such restrictions may require Landlord to sign in, wear identification badges
and be accompanied by an authorized employee or agent of Tenant (except in case
of emergency). Tenant and Landlord shall reasonably cooperate in establishing
emergency entry protocols such that Landlord may enter all portions of the
Premises in an emergency in such a way as to accommodate, to the extent
reasonably practical under the circumstances, Tenant's security concerns.
13. DAMAGE OR DESTRUCTION:
(a) Landlord Obligated to Repair: If the Building or the Premises
shall be materially damaged or destroyed by fire or other casualty to the extent
that the cost of restoration, as reasonably estimated by Landlord, will be less
than fifty percent (50%) of the replacement value of the Building (exclusive of
foundations) and Landlord has available insurance proceeds (or a like recovery
of funds) with respect thereto, which together with any deductibles is
sufficient to cover the cost of restoration, and such damage or destruction can
be repaired or replaced under then applicable laws and ordinances, Landlord
shall promptly commence and diligently proceed to repair or replace such damage
or destruction. If Landlord so repairs or replaces such damage the term of this
Lease shall continue, subject, however, to the provisions of Sections 13(c) and
(d).
(b) Landlord Not Obligated to Repair: If the Building or the
Premises shall be materially damaged or destroyed by fire or other casualty and
Section 13(a) is not applicable, Landlord shall not be obligated to, but may
repair or replace such damage. If Landlord elects to repair or replace, and
promptly commences and diligently proceeds to do so, the term of this Lease
shall continue, subject, however, to the provisions of Sections 13(c) and (d).
If Landlord elects not to repair or replace, the term of this Lease shall end
with the occurrence of the damage or destruction and rental and other payments
owing by Tenant hereunder shall be prorated as of such date.
Notwithstanding the foregoing, if Section 13(a) is not applicable
because available insurance proceeds or a like recovery of funds are not
available, Tenant may nevertheless require Landlord to restore such damage or
destruction if Tenant (without reimbursement from Landlord or reduction in Rent)
advances the additional funds necessary to undertake such restoration.
(c) Elections and Determinations: Landlord shall provide Tenant
with written notice of its determination of the extent of the damage and, if
Landlord has the option to repair or rebuild, whether or not Landlord will
repair or rebuild. Such notice shall be delivered within sixty (60) days after
the damage occurs, or as soon thereafter as Landlord determines the availability
of insurance proceeds, but in no event later than ninety (90) days after the
damage occurs. If requested by Tenant, Landlord will exercise diligent efforts
to make decisions and elect options quicker than the 60 to 90 day period
provided herein. If Landlord intends to repair or rebuild, the notice shall also
include an estimated date for completion of rebuilding. If such date is later
than two hundred seventy
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(270) days following the casualty, or if Landlord fails to deliver such notice
within the ninety (90) day period specified above, or if, subject to Force
Majeure and Tenant Delays, Landlord fails to complete (or it becomes reasonably
evident that Landlord will fail to complete) the repairs within seventy five
(75) days after the estimated completion date, then Tenant at its option may
terminate the Lease by providing Landlord with written notice within fifteen
(15) days after expiration of the applicable period (or fifteen (15) days after
it becomes reasonably evident that such deadline will not be achieved).
(d) Repair Duties: In any case described in Sections 13(a) or (b)
where the damage or destruction to the Premises is being repaired or replaced,
Tenant shall repair or replace the Tenant Improvements involved to the extent
legally permissible, and Landlord and Tenant shall share the expense thereof in
the same proportion and same manner as they shared the expenses of the
installation of the original Tenant Improvements. All rebuilding and repair
contemplated by this Section 13 shall be in conformity with this Lease, except
Tenant may elect to change the standards and details of the Tenant Improvements
as it may see fit (so long as the same are not inconsistent with the
requirements of Exhibit B), and Tenant shall bear any additional cost resulting
from such changes.
(e) Abatement of Rent: During the period between the occurrence
of any loss, damage or destruction referred to in this Section 13 and the
completion of repair or reconstruction of such loss or damage, this Lease shall
continue in full force and effect (except as provided above), but payment of
rent and other charges payable by Tenant hereunder for the space affected by
such loss, damage or destruction shall be abated during such period of repair or
reconstruction in fair and just proportion to the portion of the Premises for
which normal and usual utilization by Tenant is made impractical.
(f) Repair or Reconstruction After Loss Which is Not Material:
Landlord shall be obligated to promptly commence and shall thereafter diligently
proceed to repair any damage or destruction to the Building which is not
material or is required or elected to be repaired hereunder.
(g) Destruction During Last Year of Term: In case the Building
shall be materially destroyed by fire or other cause at any time during the last
twelve months of the term of this Lease, either Landlord or Tenant may terminate
this Lease upon written notice to the other party hereto given within sixty (60)
days of the date of such destruction.
(h) Tenant Property: Landlord will not carry insurance of any
kind on Tenant's furniture, furnishings, fixtures, equipment, or appurtenances
of Tenant under this Lease and Landlord shall not be obligated to repair any
damage thereto or replace the same.
(i) Earthquake. In the event of damage or destruction caused by
earthquake, and even if Landlord maintains earthquake insurance pursuant to the
provisions of Section 16 below, Tenant may elect to contribute Tenant's share of
the deductible applicable to such damage or destruction only to the amount of
the deductible applicable to other insured losses. If Tenant only elects to
contribute a portion of the deductible for earthquake damage or destruction, and
if Landlord does not elect to contribute the rest of such deductible, such
damage or destruction shall be treated as damage or destruction for which
sufficient insurance proceeds are not available for repair or restoration of
such damage or destruction.
14. WAIVER OF SUBROGATION AND CONSEQUENTIAL DAMAGES:
Notwithstanding any other provisions of the Lease, whether a loss or damage is
due to the negligence of either Landlord or Tenant, their agents or employees,
or any other cause, Landlord and Tenant do each hereby release and relieve the
other, their agents or employees, from responsibility for, and waive their
entire claim of recovery for (a) any loss or damage to the real or personal
property of either located anywhere in the Building or on the Land, including
the Building itself, arising out of or incident to the occurrence of any of the
perils that are covered by the insurance policies actually carried by the party
or the insurance policy required under this Lease to be carried by the party;
and (b) any loss resulting from business interruption at the Premises or loss
of rental income from the Building, arising out of or incident to the occurrence
of any of the perils which are covered by a business interruption insurance
policy or loss of rental income insurance policy held by Landlord or Tenant.
Each party shall cause its insurance carriers to consent to the foregoing waiver
of rights of subrogation against the other party.
15. INDEMNIFICATION:
(a) Tenant shall indemnify, defend and hold Landlord harmless
from and against liabilities, damages, losses, claims, and expenses, including
reasonable attorneys fees, arising from any
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act or negligence of Tenant or its officers, contractors, licensees, agents,
employees, clients or customers in or about the Building or Premises or arising
from any breach or default under this Lease by Tenant. The foregoing provisions
shall not be construed to make Tenant responsible for loss, damage, liability or
expense resulting from injuries to third parties caused by the negligence or
willful misconduct of Landlord, or its officers, contractors, licensees, agents,
employees, clients or customers or other tenants of the Building.
(b) Landlord shall indemnify, defend and hold Tenant harmless
from and against all liabilities, damages, losses, claims, and expenses,
including reasonable attorneys' fees arising from any act or negligence of
Landlord or its officers, contractors, licensees, agents, employees, clients, or
customers in or about the Building or Premises, or arising from any breach or
default under this Lease by Landlord. Landlord shall not be liable for any act
or neglect of Tenant or any other tenant or occupant of the Building or any
third parties. In no event shall Landlord be liable to Tenant for any damage to
the Premises or for any loss, damage or injury to any property therein or
thereon occasioned by bursting, rupture, leakage or overflow of any plumbing or
other pipes (including, without limitation, water, steam and/or refrigerant
lines), sprinklers, tanks, drains, drinking fountains or washstands or other
similar cause in, above, upon or about the Premises or the Building, unless due
to the negligence or willful misconduct of Landlord or its officers,
contractors, licensees, agents, employees, clients or customers.
16. INSURANCE:
(a) Liability Insurance: Tenant shall, throughout the term of
this Lease and any renewal hereof, at its own expense, keep and maintain in full
force and effect, a policy of commercial general liability (occurrence form)
insurance, including contractual liability insuring Tenant's activities upon, in
or about the Premises or the Building, against claims of bodily injury or death
or property damage or loss with a combined single limit of not less than Three
Million Dollars ($3,000,000) per occurrence and Five Million Dollars
($5,000,000) in the aggregate. Landlord and the Building manager shall be named
as additional insureds.
(b) Property Insurance: Tenant shall, throughout the term of this
Lease and any renewal thereof, at its own expense, keep and maintain in full
force and effect, what is commonly referred to as "All Risk" or "Special"
coverage insurance (excluding earthquake and flood) on its furniture, fixtures
and equipment in an amount not less than one hundred percent (100%) of the
replacement value thereof with a coinsurance waiver.
(c) Insurance Policy Requirements: All insurance required under
this Section 16 shall be with companies rated AX or better by A.M. Best or
otherwise reasonably approved by Landlord. No insurance policy required under
this Section 16 shall be canceled or reduced in coverage except after forty-five
(45) days prior written notice to Landlord, except after ten (10) days prior
written notice to Landlord in the case of non-payment of premium.
(d) Certificate of Insurance; Tenant shall deliver to Landlord
prior to the Commencement Date, and from time to time thereafter, copies of
policies of such insurance or certificates evidencing the existence and amounts
of same and evidencing Landlord and the Building manager as additional insureds
thereunder. In no event shall the limits of any insurance policy required under
this Section 16 be considered as limiting the liability of Tenant under this
Lease.
(e) Primary Policies: All policies required under Section 16(a)
and (b) shall be written as primary policies and not contributing to or in
excess of any coverage Landlord or Building manager may choose to maintain.
(f) Landlord's Insurance: Landlord shall procure and maintain
commercial general liability insurance covering claims with respect to injuries
or damages to persons or property sustained in, on or about the Building and the
appurtenances thereto, including the sidewalks and alleyways adjacent thereto,
with limits of liability no less than five million dollars ($5,000,000) combined
single limit per occurrence and in the aggregate. Such limits may be achieved
through the use of umbrella liability insurance otherwise meeting the
requirements of this Section 16(f).
Landlord will procure and maintain physical damage insurance
covering all real property located on or in, or constituting a part of, the
Building in an amount equal to at least one hundred percent (100%) of
replacement value of all such property with a coinsurance waiver and with
coverage for compliance with changed code requirements. Such insurance shall
afford coverage for damages resulting from (i) perils covered by what is
commonly referred to as "all risk" coverage insurance (but excluding earthquake
and flood), and (ii) boilers and machinery coverage as appropriate for apparatus
located in the Building. If Landlord does not otherwise maintain earthquake
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insurance on the Building, Landlord shall consider the reasonable requests of
Tenant to maintain such insurance, provided all premiums for such insurance
constitute an Operating Cost hereunder.
(h) Tenant-Funded Improvements. In the event Tenant constructs
improvements within the Premises or incurs costs to construct the PacMed
Improvements in excess of the allowances provided for herein, Tenant may at
Tenant's sole cost obtain insurance with respect to such improvements. At the
request of Tenant, and to the extent such coverage is available, Landlord will
add such Tenant-funded improvements to Landlord's physical damages insurance and
will designate Tenant as the loss payee thereof, provided (i) Tenant provides
Landlord and/or Landlord's insurer with such evidence as may be required
regarding the costs of the Tenant-funded improvements, and (ii) Tenant reimburse
Landlord for the additional insurance costs to add the Tenant-funded
improvements to Landlord's physical damage insurance policies.
(g) Deductibles: All insurance carried by Landlord and Tenant pursuant
to this Section 16 shall provide for deductible amounts consistent with
standards then customary in the Seattle office building market for the type and
amount of coverage. In the event of an insured loss, the party responsible for
repair shall pay the deductible (provided that deductibles paid by Landlord
shall be includable as Operating Costs).
(h) Tenant-Funded Improvements. In the event Tenant constructs
improvements within the Premises or incurs costs to construct the PacMed
Improvements in excess of the allowances provided for herein, Tenant may at
Tenant's sole cost obtain insurance with respect to such improvements. At the
request of Tenant, and to the extent such coverage is available, Landlord will
add such Tenant-funded improvements to Landlord's physical damage insurance and
will designate Tenant as the loss payee as to such Tenant-funded improvements,
provided (i) Tenant provides Landlord and/or Landlord's insurer with such
evidence as may be required regarding the costs of the Tenant-funded
improvements, and (ii) Tenant reimburses Landlord for the additional insurance
costs to add the Tenant-funded improvements to Landlord's physical damage
insurance policies.
17. ASSIGNMENT AND SUBLETTING:
(a) Assignment or Sublease: Except as set forth in Section 17(c),
Tenant shall not assign, mortgage, encumber or otherwise transfer this Lease nor
sublet the whole or any part of the Premises without in each case first
obtaining Landlord's prior written consent. Subject to Section 17(b), below,
such consent shall not be unreasonably withheld or delayed, except: (i) Landlord
may withhold its consent if in Landlord's reasonable judgment occupancy by any
proposed assignee, subtenant, or other transferee (A) would materially interfere
with the maintenance and operation of a first-class office building due to the
nature of the proposed occupant's business or manner of conducting business or
its experience or reputation in the community; or (B) is likely to cause
disturbance to the normal use and occupancy of the Building for tenants other
than Tenant; (ii) Landlord may withhold in its absolute and sole discretion
consent to any mortgage, hypothecation, pledge, or other encumbrance of any
interest in this Lease or the Premises by Tenant or any subtenant; (iii)
Landlord may withhold its consent to the extent it deems necessary to comply
with any restriction on use of the Premises, the Building, or the Land contained
in any applicable laws or in any lease, mortgage, or other agreement or
instrument by which the Landlord is bound or to which any of such property is
subject all as existing as of the date of full execution of this Lease.
No such assignment, subletting or other transfer shall relieve Tenant of
any liability under this Lease. Consent to any such assignment, subletting or
transfer shall not operate as a waiver of the necessity for consent to any
subsequent assignment, subletting or transfer. Each request for an assignment or
subletting must be accompanied by a Processing Fee of $500 in order to reimburse
Landlord for expenses, including attorneys fees, incurred in connection with
such request ("Processing Fee"). Tenant shall provide Landlord with copies of
all assignments, subleases and assumption instruments.
(b) Landlord Right to Terminate Portion of Lease: If Tenant intends
to assign this Lease or sublease all or any portion of the Premises for the
remainder of the Term of this Lease other than a permitted transfer pursuant to
Subsection 17(c), Landlord reserves the right to recapture the space and
terminate this Lease, or if consent is requested for subletting less than the
entire Premises for the remainder of the Term of this Lease, to terminate this
Lease with respect to the portion for which such consent is requested, provided
that Landlord shall notify Tenant in writing ("Recapture Notice") of its intent
to recapture the space within ten business (10) days after receipt of written
notification of Tenant's intent to market space for sublease or assignment. In
the event of any such recapture, Landlord shall pay all costs of segregating the
recaptured space from the Premises, and all terms of this lease dependent on the
Rentable Square Footage of the Premises (including but not limited to Rent and
Tenant's Share of Operating Costs) shall be recomputed to reflect such
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recapture. If Landlord provides a timely Recapture Notice, Tenant shall have the
right within ten business (10) days thereafter to rescind its request for
consent, in which case the Recapture Notice shall be null and void and of no
further force or effect and Tenant shall have no right to market the space for
assignment or sublease hereunder. In addition, upon sublease or assignment, if
Landlord has not elected to recapture such space, Tenant shall pay Landlord, as
Additional Rent, fifty percent (50%) of the amount by which all sums received
under the sublease or assignment exceed the total of (i) the Rent and Additional
Rent due under this Lease plus (ii) reasonable market rate leasing commissions,
legal fees, design fees and tenant improvement costs incurred by Tenant with
respect to the sublease or assignment. Tenant shall provide Landlord copies of
all sublease or assignment documentation as soon as reasonably possible.
(c) Permitted Transfers: Notwithstanding anything herein to the
contrary, Landlord hereby consents to an assignment of this Lease, or a
subletting of all or part of the Premises, to (i) the parent of Tenant or to a
wholly owned subsidiary of Tenant or of such parent, (ii) any corporation in
whom or with which Tenant may be merged or consolidated, or (iii) any entity to
whom Tenant sells all or substantially all of its assets, provided that in each
such instance such entity expressly assumes all of Tenant's obligations
hereunder and has a net worth at least equal to the net worth of Tenant
immediately prior to such assignment or transaction. With respect to the
transactions described in Subsections (i) and (ii) above, such net worth may be
on a consolidated basis with Tenant's affiliated entity. Landlord acknowledges
that Tenant is a publicly owned corporation and that the transfer of all or any
portion of the ownership of stock in Tenant shall not be deemed an assignment of
this Lease. In addition, Landlord hereby consents to occupancy (by sublease or
Tenant granted license) of portions of the Premises (not to exceed ten percent
in the aggregate) by persons or entities with whom Tenant is pursuing a joint
venture or cooperative business undertaking, provided that Tenant shall provide
reasonable prior notice to Landlord of the identity of each such permitted
occupant.
(d) Assignee Obligations: As a condition to Landlord's approval, any
potential assignee otherwise approved by Landlord shall assume in writing all
obligations of Tenant under this Lease and shall be liable to Landlord for
rental and other payments and performance of all terms, covenants and conditions
of this Lease.
(e) Sublessee Obligations: Any sublessee shall assume all
obligations of Tenant as to that portion of the Premises which is subleased.
18. SIGNS: Landlord shall cooperate with Tenant to allow Tenant to place
signage displaying Tenant's and/or corporate logo on the exterior of the
Building. All such signage shall be subject to applicable laws and codes,
including any historical designation requirements imposed on the Building, and
shall also be subject to Landlord's consent, such consent not to be unreasonably
withheld. Any such consent by Landlord shall be upon the understanding and
condition that Tenant shall remove the same at the expiration or sooner
termination of this Lease and Tenant shall repair any damage to the Premises or
the Building caused thereby. Signage other than building standard elevator lobby
directory signage is at Tenant's sole expense.
19. LIENS AND INSOLVENCY:
(a) Liens: Tenant shall keep its interest in this Lease, the
Premises, the Land and the Building free from any liens arising out of any work
performed and materials ordered or obligations incurred by or on behalf of
Tenant and hereby indemnifies, defends and holds Landlord harmless from any
liability from any such lien. In the event any lien is filed against the
Building, the Land or the Premises by any person claiming by, through or under
Tenant, Tenant shall, upon request of Landlord and at Tenant's expense, cause
such lien to be released of record within ten (10) days or furnish to Landlord a
bond, in form and amount and issued by a surety reasonably satisfactory to
Landlord, indemnifying Landlord, the Land and the Building against all
liability, costs and expenses, including attorneys fees, which Landlord may
incur as a result thereof. Provided that such bond has been furnished to
Landlord, Tenant, at its sole cost and expense and after written notice to
Landlord, may contest, by appropriate proceedings conducted in good faith and
with due diligence, any lien, encumbrance or charge against the Premises arising
from work done or materials provided to or for Tenant, if, and only if, such
proceedings suspend the collection thereof against Landlord, Tenant and the
Premises and neither the Premises, the Building nor the Land nor any part
thereof or interest therein is or will be in any danger of being sold, forfeited
or lost.
(b) Insolvency: If Tenant becomes insolvent or voluntarily or
involuntarily bankrupt, or if a receiver, assignee or other liquidating officer
is appointed for the business of Tenant (and not discharged within ninety (90)
days with respect to an involuntary proceeding), Landlord at its option may
terminate this Lease and Tenant's right of possession under this Lease and in no
event
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shall this Lease or any rights or privileges hereunder be an asset of Tenant in
any bankruptcy, insolvency or reorganization proceeding.
20. DEFAULT:
(a) Cumulative Remedies: All rights of Landlord and Tenant herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law. In addition to the other remedies provided in this Lease,
Landlord and Tenant shall be entitled to restrain by injunction the violation or
threatened violation of any of the covenants, agreements or conditions of
this Lease.
(b) Tenant's Right to Cure: Tenant shall have a period of three (3)
business days from the date of written notice from Landlord to Tenant within
which to cure any default in the payment of Rent, Additional Rent and other sums
due hereunder. Tenant shall have a period of thirty (30) days from the date of
written notice from Landlord to Tenant within which to cure any other default
hereunder; provided, however, that with respect to any such default capable of
being cured by Tenant which cannot be cured within thirty (30) days, the default
shall not be deemed to be uncured if Tenant commences to cure within thirty (30)
days and for so long as Tenant is diligently pursuing the cure thereof.
(c) Abandonment: Abandonment shall be defined as an absence from the
Premises of thirty (30) days or more while Tenant is in monetary default. Any
abandonment by Tenant shall be considered a default with no right to cure,
allowing Landlord to re-enter the Premises as hereinafter set forth.
(d) Landlord's Reentry: Upon abandonment or an uncured default of
this Lease by Tenant, Landlord, in addition to any other rights or remedies it
may have, at its option, may enter the Premises or any part thereof, and expel,
remove or put out Tenant or any other persons who may be thereon, together with
all personal property found therein; and Landlord may terminate this Lease, or
it may from time to time, without terminating this Lease, relet the Premises or
any part thereof for such term or terms (which may be for a term less than or
extending beyond the term hereof) and at such rental or rentals and upon such
other terms and conditions as Landlord in its sole discretion may deem
advisable, with the right to repair, renovate, remodel, redecorate, alter and
change the Premises, Tenant remaining liable for any deficiency computed as
hereinafter set forth. In the case of any default, reentry and/or dispossession
all Rent and Additional Rent shall become due thereupon, together with such
expenses as Landlord may reasonably incur for attorneys fees, advertising
expenses, brokerage fees and/or putting the Premises in good order or preparing
the same for rerental, together with interest thereon as provided in Section
37(f) hereof, accruing from the date of any such expenditure by Landlord. No
such re-entry or taking possession of the Premises shall be construed as an
election on Landlord's part to terminate this Lease unless a written notice of
such intention be given to Tenant.
(e) Reletting the Premises: At the option of Landlord, rents
received by Landlord from such reletting shall be applied first to the payment
of any indebtedness from Tenant to Landlord other than Rent and Additional Rent
due hereunder; second, to the payment of any costs and expenses of such
reletting and including, but not limited to, attorneys fees, advertising fees
and brokerage fees, and to the payment of any repairs, renovations, remodeling,
redecoration, alterations and changes in the Premises (provided that in the
event of a reletting for more than the remaining balance of the Lease Term, such
costs shall be amortized over the term of the relet lease and only that portion
chargeable to the Lease shall be charged to Tenant); third, to the payment of
Rent and Additional Rent due and to become due hereunder, and, if after so
applying said Rents there is any deficiency in the Rent or Additional Rent to be
paid by Tenant under this Lease, Tenant shall pay any deficiency to Landlord
monthly on the dates specified herein. Any payment made or suits brought to
collect the amount of the deficiency for any month shall not prejudice in any
way the right of Landlord to collect the deficiency for any subsequent month.
The failure of Landlord to relet the Premises or any part or parts thereof shall
not release or affect Tenant's liability hereunder, nor shall Landlord be liable
for failure to relet, or in the event of reletting, for failure to collect the
Rent thereof, and in no event shall Tenant be entitled to receive any excess of
net Rents collected over sums payable by Tenant to Landlord hereunder.
Notwithstanding any such reletting without termination, Landlord may at any time
elect to terminate this Lease for such previous breach and default. Should
Landlord terminate this Lease by reason of any default, in addition to any other
remedy it may have, it may recover from Tenant the then present value of Rent
and Additional Rent reserved in this Lease for the balance of the Term, as it
may have been extended, over the then fair market rental value of the Premises
for the same period, plus all court costs and attorneys fees incurred by
Landlord in the collection of the same.
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(f) Landlord's Default. Landlord's failure to perform or observe
any of its obligations under this Lease or to correct a breach of any warranty
or representation made in this Lease within thirty (30) days after receipt of
written notice from Tenant setting forth in reasonable detail the nature and
extent of the failure referencing pertinent Lease provisions or if more than
thirty (30) days is required to cure the breach, Landlord's failure to begin
curing within the thirty (30) day period and diligently prosecute the cure to
completion, shall constitute a default.
(g) Tenant's Remedies. If Landlord commits a default that materially
affects Tenant's use of the Premises, and Tenant has provided simultaneous
written notice thereof to Landlord's mortgagee (if any and if Tenant has notice
thereof) and Landlord (and/or Landlord's mortgagee if any) has failed to
commence to cure such default within the period specified in Section 20(f) or
such shorter time as is commercially reasonable in the case of an emergency
threatening imminent harm to persons or property, Tenant may, without waiving
any claim for damages for breach of agreement, thereafter cure the default for
the account of the Landlord, which cure shall be preceded by an additional
notice given at least three (3) days prior to such cure to Landlord and
Landlord's mortgagee that Tenant plans to undertake the cure, and the reasonable
cost of such cure shall be deemed paid or incurred for the account of Landlord,
and Landlord shall reimburse Tenant for Tenant's out-of-pocket expenditures paid
to third parties to effectuate such cure, such reimbursement to be within thirty
(30) days after completion of the cure and invoice to Landlord showing the costs
of cure. If Landlord disputes either the necessity of the cure or the cost
thereof, the matter shall be settled by arbitration administered by the American
Arbitration Association in accordance with its rules before a single arbitrator
of the American Arbitration Association sitting in Seattle, Washington. The
arbitrator shall be a person having experience and knowledge about commercial
leasing and property management. The arbitration shall be held within sixty (60)
days of Landlord notifying Tenant it disputes Tenant's cure. The costs of the
arbitrator shall be shared equally by the parties. The prevailing party shall be
entitled to an award of reasonable attorney's fees. The arbitrator's award shall
be final and binding on the parties. Except as otherwise specifically permitted
in this Lease, Tenant hereby waives any right it may have at law or under equity
to abate or offset Rent or additional rent for any reason.
(h) Mitigation. In the case of default by either party, the
non-defaulting party shall take reasonable measures in mitigation thereof,
provided that, in any challenge to the reasonableness of such mitigation, the
mitigating measure shall be presumed reasonable, and the party challenging the
reasonableness of the mitigation shall have the burden of showing that the
mitigating measure (such as Landlord's reletting for a different term in, the
case of a Tenant default) was not reasonable in the circumstances. For purposes
of this Lease, reasonable efforts to mitigate damages by reletting shall mean
that Landlord shall market the Premises as it would any other vacant space in
the Building.
21. PRIORITY: Tenant agrees that this Lease shall be subordinate to any
first mortgage or deed of trust hereafter placed upon Landlord's interest in the
Premises or the Building and to any and all advances to be made thereunder and
to interest thereon and all renewals, replacements, or extensions thereof
("Landlord's Mortgage"); provided, however, that the subordination of this Lease
and the estate hereby granted to Landlord's Mortgage shall be upon the condition
that the holder of Landlord's Mortgage ("Holder") shall execute and deliver to
Tenant, and fully perform and abide by the terms of, an instrument in recordable
form and reasonably satisfactory to Tenant ("Nondisturbance Agreement")
providing that so long as conditions do not exist entitling Landlord to
terminate this Lease under the provisions of Section 20 (including the
expiration of all periods to cure):
(a) This Lease and the estate hereby created shall not be
terminated;
(b) Nether Tenant nor any subtenant or assigns of Tenant shall be
joined by the Holder of Landlord's Mortgage in any foreclosure proceedings;
(c) Tenant's possession or enjoyment or the Premises shall not be
interfered with by or in any foreclosure, bankruptcy, reorganization action,
sale or other action or proceeding instituted under or in connection with such
Landlord's Mortgage, it being the express intention of Landlord, the Holder of
Landlord's Mortgage and Tenant that Tenant shall not be disturbed in its
possession and use of the Premises under this Lease for any reason other than
the termination of this Lease in accordance with its terms; and
(d) If the interest of Landlord under this Lease shall be
transferred, then upon the assumption by the transferee of all obligations under
this Lease accruing from and after such transfer, Tenant shall attorn to any
such transferee upon such transferee's succession to the interest of Landlord
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under this Lease and notice to Tenant to that effect, upon and subject to all
the terms, covenants and conditions hereof.
Landlord and Tenant agree that, subject to the execution and
delivery of a Nondisturbance Agreement, the provision for the subordination of
this Lease and the estate hereby granted to the lien of such Landlord's Mortgage
shall be self-operative and no further instrument shall be required to effect
such subordination; but Tenant shall, upon request by Landlord, at any time or
times (a) execute and deliver any and all instruments as shall be reasonably
required to effect such subordination and (b) execute and deliver any and all
further or other instruments that may be reasonably necessary or proper to
confirm or evidence such subordination. Without limiting the foregoing, upon
request of Landlord, Tenant shall execute, acknowledge and deliver to the Holder
of any First Mortgage a Subordination, Attornment and Nondisturbance Agreement
in the form attached as Exhibit E hereto.
Notwithstanding the foregoing, upon demand of such Holder, such
Landlord's Mortgage shall be subordinate to this Lease; provided, however, that
in such event, notwithstanding such subordination, and subject to execution of a
Nondisturbance Agreement, such Landlord's Mortgage shall be superior to this
Lease with respect to (i) the right, claim and lien of the Landlord's Mortgage
in, to and upon any award or other compensation for any taking by eminent domain
of any part of the Premises or the Building and the right of disposition thereof
in accordance with the provisions of the Landlord's Mortgage; and upon any
proceeds payable under any policies of fire and rental insurance upon the
Premises or the Building and to the right of disposition thereof in accordance
with the terms of the Landlord's Mortgage; (ii) any lien, right or judgment
which may have arisen at any time under the terms of the Lease; and (iii) such
other matters as may be specifically reserved by the Holder of such Landlord's
Mortgage in writing in connection with such subordination; subject, however, to
the terms of an executed Nondisturbance Agreement.
Notwithstanding any other provision of this Lease, Landlord hereby
completely and irrevocably waives any interest that Landlord has or may have,
under statute or otherwise, in Tenant's personal property and movable trade
fixtures.
22. SURRENDER OF POSSESSION: Subject to the terms of Section 13 relating
to damage and destruction, upon expiration of the term of this Lease, whether by
lapse of time or otherwise, Tenant shall promptly and peacefully surrender the
Premises to Landlord in as good condition as when received by Tenant from
Landlord or as thereafter improved (subject to Tenant's obligation to remove any
Alterations or Changes if requested by Landlord at the time of Landlord's
initial consent pursuant to Section 11, above), subject to reasonable use and
wear and tear and casualty that is not otherwise Tenant's obligation under this
Lease to repair.
23. REMOVAL OF PROPERTY: Tenant shall remove all of its movable personal
property, telephone, data and computer cabling, rooftop equipment, and trade
fixtures paid for by Tenant which can be removed without damage to the Premises
at the expiration or earlier termination of this Lease, and shall repair any
injury to the Premises or Building resulting from such removal. Landlord
acknowledges that the walls of the Premises will have installed numerous white
boards, pin boards, and similar improvements for note-taking and discussion
groups. Upon termination of this Lease, Tenant shall fill any significant holes
and spackel the walls so as to be paint ready, but shall not otherwise be
required to paint or restore the walls. All other improvements and additions to
the Premises shall thereupon become the property of Landlord.
24. NON-WAIVER: Waiver by Landlord or Tenant of any term, covenant or
condition herein contained or any breach thereof shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant, or
condition herein contained. The subsequent acceptance of any payment hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant
of any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the amount so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such payment.
25. HOLDOVER: If Tenant shall, with the written consent of Landlord,
hold over after the expiration of the term of this Lease, such tenancy shall be
deemed a month-to-month tenancy, which tenancy may be terminated as provided by
applicable law. During such tenancy, Tenant agrees to pay to Landlord one
hundred ten percent (110%) of the Rent and Additional Rent in effect upon the
date of such expiration as stated herein, and to be bound by all of the terms,
covenants and conditions herein specified, so far as applicable. Landlord may
charge a holdover rent equal to one hundred Fifty percent (150%) of the Rent
and Additional Rent in effect on the date of Lease expiration by giving Tenant
written notice at least one hundred twenty (120) days prior to the date on which
such one hundred fifty percent (150%) charge will commence. Acceptance by
Landlord of Rent and Additional
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<PAGE> 26
Rent after such expiration or earlier termination shall not result in a renewal
of this Lease. The foregoing provisions of this Section 25 are in addition to
and do not affect Landlord's right of re-entry or any rights of Landlord
hereunder or as otherwise provided by law. If Tenant shall hold over after the
expiration or earlier termination of this Lease without the written consent of
Landlord, such occupancy shall be deemed an unlawful detainer of the Premises
subject to the applicable laws of the state in which the Building is located
and, in addition, Tenant shall be liable for any costs, damages, losses and
expenses incurred by Landlord as a result of Tenant's failure to surrender the
Premises in accordance with this Lease.
26. CONDEMNATION:
(a) Entire Taking: If all of the Premises or such portions of the
Building as may be required for the reasonable use of the Premises, are taken by
eminent domain, this Lease shall automatically terminate as of the date title
vests in the condemning authority and all Rent, Additional Rent and other
payments shall be paid to that date.
(b) Constructive Taking of Entire Premises: In the event of a taking
of a material part of but less than all of the Building, where Landlord or
Tenant shall reasonably determine that the remaining portions of the Premises
cannot be economically and effectively used by Tenant (whether on account of
physical, economic, aesthetic or other reasons), or if, in the opinion of
Landlord or Tenant, the Building should be restored in such a way as to alter
the Premises materially so that the Premises cannot be economically and
efficiently used by Tenant, Landlord or Tenant shall forward a written notice to
the other of such determination not more than sixty (60) days after agreement or
judgment has been entered authorizing the taking. The term of this Lease shall
expire upon such date as such party shall specify in such notice but not earlier
than the earlier of the date title will pass or sixty (60) days after the date
of such notice.
(c) Partial Taking: In case of taking of a part of the Premises, or
a portion of the Building not required for the reasonable use of the Premises,
then this Lease shall continue in full force and effect and the Rent shall be
equitably reduced based on the proportion by which the floor area of the
Premises is reduced, such Rent reduction to be effective as of the date title to
such portion vests in the condemning authority. If a portion of the Premises
shall be so taken which renders the remainder of the Premises unsuitable for
continued occupancy by Tenant under this Lease, Tenant may terminate this Lease
by written notice to Landlord within sixty (60) days after the date of such
taking and the term of this Lease shall expire upon such date as Tenant shall
specify in such notice not later than sixty (60) days after the date of such
notice.
(d) Awards, and Damages: Landlord reserves all rights to damages to
the Premises for any partial, constructive, or entire taking by eminent domain,
and Tenant hereby assigns to Landlord any right Tenant may have to such damages
or award, and Tenant shall make no claim against Landlord or the condemning
authority for damages for termination of the leasehold interest or interference
with Tenant's business. Tenant shall have the right, however, to claim and
recover from the condemning authority compensation for any loss to which Tenant
may be put for Tenant's moving expenses, business interruption or taking of
Tenant's personal property and leasehold improvements paid for by Tenant (not
including Tenant's leasehold interest) provided that such damages may be claimed
only if they are awarded separately in the eminent domain proceedings and not
out of or as part of the damages recoverable by Landlord.
27. NOTICES: All notices under this Lease shall be in writing and
delivered in person or sent by registered or certified mail, or nationally
recognized courier (such as Federal Express, DHL, etc.), postage prepaid, to
Landlord and to Tenant at the Notice Addresses provided in Section 1(m) and to
the holder of any mortgage or deed of trust at such place as such holder shall
specify to Tenant in writing; or such other addresses as may from time to time
be designated by any such party in writing. Notices mailed as aforesaid shall be
deemed given on the day which is three (3) business days after the date of such
mailing.
28. COSTS AND ATTORNEYS FEES: If Tenant or Landlord shall bring any
action for any relief against the other, declaratory or otherwise, arising out
of this Lease, including any suit by Landlord for the recovery of Rent,
Additional Rent or other payments hereunder or possession of the Premises, each
party shall, and hereby does, to the extent permitted by law, waive trial by
jury and the losing party shall pay the prevailing party a reasonable sum for
attorneys fees in such suit, at trial and on appeal, and such attorneys fees
shall be deemed to have accrued on the commencement of such action.
29. LANDLORD'S LIABILITY: Anything in this Lease to the contrary
notwithstanding, and except as provided in Section 31 below, covenants,
undertakings and agreements
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herein made on the part of Landlord are made and intended not as personal
covenants, undertakings and agreements for the purpose of binding Landlord
personally or the assets of Landlord except Landlord's interest in the Premises
and Building (and any rents or proceeds, including insurance proceeds, thereof),
but are made and intended for the purpose of binding only the Landlord's
interest in the Premises and Building (and any rents or proceeds, including
insurance proceeds, thereof), as the same may from time to time be encumbered.
No personal liability or personal responsibility is assumed by, nor shall at any
time be asserted or enforceable against Landlord or its partners or their
respective heirs, legal representatives, successors, and assigns on account of
the Lease or on account of any covenant, undertaking or agreement of Landlord in
this Lease contained.
30. ESTOPPEL CERTIFICATES: Each party shall, from time to time, upon
written request of the other, execute, acknowledge and deliver to the requesting
party or its designee a written statement stating: The date this Lease was
executed and the date it expires; the date the term commenced and the date
Tenant accepted the Premises; the amount of minimum monthly Rent and the date to
which such Rent has been paid; and certifying to the extent true: That this
Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in any way (or specifying the date and terms of
agreement so affecting this Lease); that this Lease represents the entire
agreement between the parties as to this leasing; that all conditions under this
Lease to be performed by the other party have been satisfied; that all required
contributions by Landlord to Tenant on account of Tenant's improvements have
been received; that on this date there are no existing claims, defenses or
offsets which the executing party has against the enforcement of this Lease by
the other party; and that the security deposit is as stated in the Lease. It is
intended that any such statement delivered pursuant to this paragraph may be
relied upon by a prospective purchaser of Landlord's interest or the holder of
any mortgage upon Landlord's interest in the Building. If the party of whom a
request for estoppel certificate is made shall fail to respond within ten (10)
business days of receipt of such request as herein provided, that party shall be
deemed to have given such certificate as above provided without modification and
shall be deemed to have admitted the accuracy of any information supplied by the
requesting party to a prospective purchaser or mortgagee and that this Lease is
in full force and effect, that there are no uncured default & in the requesting
party's performance, that the security deposit is as stated in the Lease, and
that not more than one month's Rent has been paid in advance.
31. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfers of
Landlord's interest in the Building, other than a transfer for security purposes
only, the transferor shall, upon the transfer and payment of the security
deposit to the transferee (if any) and the transferee's assumption of Landlord's
obligations with respect thereto, be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after the
date of such transfer and such transferee shall have no obligation or liability
with respect to any matter occurring or arising prior to the date of such
transfer (except for the obligation to cure conditions that, under the Lease,
constitute an ongoing default after the date of transfer). Upon the transferee's
assumption of Landlord's obligations accruing from and after transfer of this
Lease, Tenant agrees to attorn to the transferee. Notwithstanding anything to
the contrary contained in this Section 31 or elsewhere in this Lease, the
obligations of Landlord to complete Landlord's Work and the Tenant Improvements,
as provided in Sections 3(a) and 3(b), and cause the Commencement Date to occur,
subject to all other terms and conditions of this Lease, are hereby guaranteed
by Wright Runstad Associates Limited Partnership, a Washington limited
partnership ("Guarantor"), and upon any transfer described in this Section 31
the obligations of Guarantor shall continue unmodified and in full force and
effect, and the Guarantor shall not be relieved of any such liabilities or
obligations by reason of such transfer. Upon fulfillment of the above-described
obligations and expiration of the warranty period in Section 3(c) above,
Guarantor's obligations hereunder shall terminate.
32. RIGHT TO PERFORM: If Tenant shall fail to pay any sum of money,
other than Rent and Additional Rent required to be paid by it hereunder, or
shall fail to perform any other act on its part to be performed hereunder, and
such failure shall continue beyond the cure period specified in Section 20(b) or
such shorter time as is commercially reasonable in the case of an emergency
threatening imminent harm to persons or property (or immediately in the case of
Tenant's failure to obtain or maintain the insurance required hereunder to be
obtained and/or maintained by Tenant), Landlord may, but shall not be obligated
so to do, and without waiving or releasing Tenant from any obligations of
Tenant, make such payment or perform any such other act on Tenant's part to be
made or performed as provided in this Lease. Any sums paid by Landlord hereunder
shall be immediately due and payable by Tenant to Landlord and Landlord shall
have (in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of the nonpayment of sums due under this Section as in the
case of default by Tenant in the payment of Rent.
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33. QUIET ENJOYMENT: Tenant shall have the right to the peaceable and
quiet use and enjoyment of the Premises, subject to the provisions of this
Lease, as long as Tenant is not in default hereunder.
34. AUTHORITY: If Tenant is a corporation, limited liability company,
limited liability partnership or limited or general partnership, Tenant
represents and warrants that the person executing this Lease on Tenant's behalf
is duly authorized to execute and deliver this Lease on behalf of Tenant, in
accordance with a duly adopted resolution or consents of all appropriate persons
or entities required therefor and in accordance with the formation documents of
Tenant, and that this Lease is binding upon Tenant in accordance with its terms.
At Landlord's request, Tenant shall, prior to execution of this Lease, deliver
to Landlord a copy of a resolution or consent, certified by an appropriate
officer, partner or manager of Tenant authorizing or ratifying the execution of
this Lease. Landlord represents and warrants that the person executing this
Lease on Landlord's behalf is duly authorized to execute and deliver this Lease
on behalf of Landlord, in accordance with a duly adopted resolution or consents
of all appropriate persons or entities required therefor and in accordance with
the formation documents of Landlord, and that this Lease is binding upon
Landlord in accordance with its terms.
35. HAZARDOUS MATERIALS:
(a) Tenant Obligations:
(i) Tenant shall not dispose of or otherwise allow the release
of any hazardous waste or materials in, on or under the Premises or the
Building, or any adjacent property, or in any improvements placed on the
Premises other than in compliance with all applicable law. Tenant represents and
warrants to Landlord that Tenant will not, without Landlord's prior written
consent, use the Premises for the use, production, disposal or bringing on to
the Premises of any hazardous waste or materials, except only ordinary and
general office supplies typically used in first-class downtown office buildings
(including, but not limited to, the presence and use of a diesel generator) and
only in such quantities or concentrations as allowed under applicable laws,
rules and regulations. As used in this Section, the term "hazardous waste or
materials" includes any substance, waste or material defined or designated as
hazardous, toxic or dangerous (or any similar term) pursuant to any statute,
regulation, rule or ordinance now or hereafter in effect. Tenant shall promptly
comply with all such statutes, regulations, rules and ordinances, and if Tenant
fails to so comply Landlord may, after reasonable prior notice to Tenant (except
in case of emergency) effect such compliance on behalf of Tenant. Tenant shall
immediately reimburse Landlord for all costs incurred in effecting such
compliance.
(ii) Tenant agrees to indemnify, defend and hold harmless
Landlord against any and all actual losses, liabilities, suits, obligations,
fines, damages, judgments, penalties, claims, charges, cleanup costs, remedial
actions, costs and expenses (including, without limitation, consultant fees,
attorneys' fees and disbursements, but excluding consequential damages) which
may be imposed on, incurred or paid by Landlord, or asserted in connection with
(i) any misrepresentation, breach of warranty or other default by Tenant under
this Section 35, or (ii) the acts of Tenant, or any subtenant or other person
for whom Tenant would otherwise be liable, resulting in the release of any
hazardous waste or materials on or in the Premises.
(b) Landlord Obligations: Landlord represents to Tenant that, to the
best of Landlord's knowledge, and except as may have been previously disclosed
to Tenant (e.g., with respect to asbestos or any other hazardous material) no
hazardous waste or materials have been generated, stored or disposed of on, in
or under the Premises or the Building other than in compliance with all
applicable laws. Landlord will hold Tenant harmless from and defend and
indemnify Tenant against any actual costs resulting from any breach of this
representation or resulting from the release of hazardous waste or materials on,
in or under the Premises or the Building by Landlord or its employees, agents or
contractors. To the extent compliance with applicable law as existing and
interpreted as of the Commencement Date requires remediation of any hazardous
material existing in the Building or the Common Areas as of the Commencement
Date, Landlord shall be responsible for such remediation at its sole cost and
expense. Landlord shall further be responsible, at its sole cost and expense,
for remediation, to the extent required by law, of any hazardous material
brought onto the Building or the Premises after the Commencement Date by
Landlord, its employees, agents or contractors. Landlord shall not otherwise be
responsible for any hazardous waste or materials resulting from the acts of
other tenants or occupants of the Building or other third parties, or for
consequential damages arising from the presence of any hazardous wastes or
materials on the Premises or in the Building.
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36. TELECOMMUNICATIONS LINES AND EQUIPMENT:
(a) Location of Tenant's Equipment and Landlord Consent:
(i) Tenant may install, maintain, replace, remove and use
communications or computer wires, cables and related devices (collectively, the
"Lines") at the Building in or serving the Premises, only with Landlord's prior
written consent if such Lines are to be installed in Building conduit or shafts,
which consent shall not be unreasonably withheld. Tenant shall locate all
electronic telecommunications equipment within the Premises or on designated
rooftop areas. Tenant's rights to use any portion of the roof are subject and
subordinate any and all pre-existing leases, licenses, or other agreements
regarding use of the roof, including without limitation existing agreements with
the U.S. Customs Service and the U.S. Coast Guard, and that certain Lease
Agreement dated November 10, 1993, between Pacific Hospital Preservation and
Development Authority and Puget Sound Instrument Company, Inc., (collectively,
the "Existing Rooftop Leases"). Landlord will provide space on the roof (not to
exceed 10% of the available roof area) for an antenna for Tenant provided Tenant
provides Landlord at least 6 months prior written notice of the need for such
antenna and the general specifications thereof. Any request for consent shall
contain detailed plans, drawings and specifications identifying all work to be
performed, the time schedule for completion of the work, the identity of the
entity that will provide service to the Lines and the identity of the entity
that will perform the proposed work (which entity shall be subject to Landlord's
reasonable approval). Landlord shall have a reasonable time in which to evaluate
the request after it is submitted by Tenant (but if Landlord has not responded
in ten (10) days, Landlord shall be deemed to have consented). Tenant shall
operate its rooftop facilities in a manner that will not cause interference to
Landlord or to the other lessees or licensees of the roof. All rooftop
operations by Tenant shall comply with all FCC requirements. If Tenant's use of
the roof or transmission or reception therefrom interferes with or causes any
impairment or diminution of the quality of service provided by transmission or
reception by or of any other tenants, occupants or users (collectively,
"Interference"), then Tenant shall, within ten (10) business days' after prior
written notice from Landlord, promptly cause such Interference to cease or be
mitigated. If Landlord's or any such other user's use of the roof for
transmission or reception causes Interference with Tenant's rooftop use as
permitted herein, then Landlord shall use reasonable efforts to cooperate with
Tenant to cause such Interference to cease. If such Interference does not cease
promptly, Tenant shall have the right to pursue any and all rights that it may
have at law or equity against the interfering party (including against Landlord,
if Landlord is the interfering party) to enjoin or terminate such Interference
Landlord agrees, if so requested, to assign to Tenant for the purposes of such
action any rights Landlord has under any Existing Rooftop Leases to prevent or
enjoin such interference. Notwithstanding anything to the contrary in this
paragraph, rooftop use by any user (Tenant, Landlord or any other user) in
compliance with FCC licensing requirements and regulations shall conclusively be
deemed to not cause or result in any Interference. Landlord agrees to cooperate
with Tenant, PMC and other potential users of the roof to manage and coordinate
rooftop facilities.
(ii) Landlord may consider the following factors, among others,
in making its determination: (A) the experience, qualifications and prior work
practice of the proposed contractor and its ability to provide sufficient
insurance coverage for its work at the Building; (B) whether or not the proposed
work will interfere with the use of any then existing Lines at the Building; (C)
whether or not an acceptable number of spare Lines and space for additional
Lines shall be maintained for existing and future occupants of the Building; (D)
a requirement that Tenant remove existing abandoned Lines located in or
servicing the Premises, as a condition to permitting the installation of new
lines; (E) whether or not Tenant is in default of any of its obligations under
this Lease; (F) whether the proposed work or resulting Lines will impose new
obligations on Landlord, expose Landlord to liability of any nature or
description, increase Landlord's insurance premiums for the Building, create
liabilities for which Landlord is unable to obtain insurance protection or
imperil Landlord's insurance coverage; and (G) whether the work or resulting
Lines would materially adversely affect the Land, Building or any space in the
Building in any manner that would materially affect Landlord's ability to lease
same.
(iii) Landlord's approval of, or requirements concerning, the
Lines or any equipment related thereto, the plans, specifications or designs
related thereto, the contractor or subcontractor, or the work performed
hereunder, shall not be deemed a warranty as to the adequacy thereof, and
Landlord hereby disclaims any responsibility or liability for the same.
(iv) If Landlord consents to Tenant's proposal, Tenant shall
(A) pay all costs in connection therewith (including all costs related to new
Lines); (B) comply with all requirements and conditions of this Section; (C)
use, maintain and operate the Lines and related equipment in accordance with and
subject to all laws governing the Lines and equipment. Tenant shall further
insure that (I) Tenant's contractor complies with the provisions of this Section
and Landlord's reasonable
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requirements governing any work performed; (II) Tenant's contractor provides all
insurance reasonably required by Landlord; (III) any work performed shall comply
with all Laws; and (IV) as soon as the work in completed, Tenant shall submit
"as-built" drawings to Landlord.
(v) Landlord reserves the right to require that Tenant remove
any Lines located in or serving the Premises which are installed in violation of
these provisions, or which are at any time in violation of any laws or present a
dangerous or potentially dangerous condition (whether such Lines were installed
by Tenant or any other party), within thirty (30) days after written notice.
(vi) Notwithstanding anything in the above paragraphs, Tenant,
at Landlord's option, shall remove any Lines located in or serving the Premises
promptly upon expiration or sooner termination of this Lease. Landlord agrees to
work with future tenant(s) of the Premises to seek to maximum re-use of such
Lines. However, Tenant shall not be required to remove any chases or trays in
which the Lines may have been located.
(b) Landlord's Rights: Landlord may (but shall not have the
obligation to), with Tenant's consent (which shall not be unreasonably
withheld):
(i) install new lines at the Building;
(ii) create additional space for Lines at the Building; and
(iii) direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic
re-allocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any Lines now or hereafter installed at the Building by
Landlord, Tenant or any other party (but Landlord shall have no right to monitor
or control the information transmitted through such Lines).
(c) Indemnification: In addition to any other indemnification
obligations under this Lease, Tenant shall indemnify, defend and hold harmless
Landlord and its employees, agents, officers, and contractors from and against
any and all claims, demands, penalties, fines, liabilities, settlements,
damages, costs or expenses (including reasonable attorneys' fees) arising out of
or in any way related to the acts of Tenant, Tenant's officers, directors,
employees, agents, contractors, subcontractors, subtenants, and invitees with
respect to: (i) any Lines or equipment related thereto serving Tenant in the
Building; (ii) any personal injury (including wrongful death) or property damage
arising out of or related to any Lines or equipment related thereto serving
Tenant in the Building; (iii) any lawsuit brought or threatened, settlement
reached, or governmental order, fine or penalty relating to such Lines or
equipment related thereto; and (iv) any violations of Law & or demands of
governmental authorities which arc based upon or in any way related to such
Lines or equipment. This indemnification and hold harmless agreement shall
survive the termination of this Lease.
(d) Limitation of Liability: Except to the extent arising from the
negligence or willful misconduct of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (i) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, or replacement, use or removal of Lines by or for other tenants or
occupants at the Building, by any failure of the environmental conditions or the
power supply for the Building to conform to any requirement of the Lines or any
associated equipment, or any other problems associated with any Lines by any
other cause; or (ii) any eavesdropping or wiretapping by unauthorized parties.
Landlord in no event shall be liable for damages by reason of loss of profits,
business interruption or other consequential damages from any Line Problems.
Under no circumstances shall any Line Problems, by themselves, be deemed an
actual or constructive eviction of Tenant. However, in the case of an
interruption or failure due to Landlord's acts or omissions, or when the
restoration thereof is within Landlord's control, and the interruption continues
for more than ten (10) business days, then it shall be treated as an event of
"Damage or Destruction" pursuant to Section 13.
(e) Electromagnetic Fields: If Tenant at any time uses any equipment
that may create an electromagnetic field exceeding the normal insulation ratings
of ordinary twisted pair riser cable or cause radiation higher thin normal
background radiation, Landlord reserves the right to require Tenant to
appropriately shield the Lines therefor (including riser cables) to then current
industry standards for such shielding.
-29-
<PAGE> 31
37. GENERAL:
(a) Headings: Titles to Sections of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
(b) Successors and Assigns: All of the covenants, agreements, terms
and conditions contained in this Lease shall inure to and be binding upon the
Landlord and Tenant and their respective, successors and assigns.
(c) Payment of Brokers: Landlord shall pay Wright Runstad & Company
and Washington Partners the real estate commissions pursuant to the signed
brokerage agreements between such brokers and Landlord. If Tenant has dealt with
any other person or real estate broker with respect to leasing or renting space
in the Building, Tenant shall be solely responsible for the payment of any fee
due said person or firm and Tenant shall indemnify and hold Landlord harmless
against any liability in respect thereto, including Landlord's attorneys' fees
and costs in defense of any such claim. If Landlord has dealt with any other
person or real estate broker, Landlord shall be solely responsible for the
payment of any fee due said person or firm and Landlord shall indemnify and hold
Tenant harmless against any liability in respect thereto, including Tenant's
attorneys' fees and costs in defense of any such claim.
(d) Entire Agreement: This Lease contains all covenants and
agreements between Landlord and Tenant relating in any manner to the leasing,
use and occupancy of the Premises, to Tenant's use of the Building and other
matters set forth in this Lease. No prior agreements or understanding pertaining
to the same shall be valid or of any force or effect and the covenants and
agreements of this Lease shall not be altered, modified or added to except in
writing signed by Landlord and Tenant.
(e) Severability: Any provision of this Lease which shall be held
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and the remaining provisions hereof shall nevertheless remain
in full force and effect,
(f) Overdue Payments: Tenant acknowledges that a late payment of
Rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease. Such costs may include, but not be limited to,
processing and accounting charges, and penalties imposed by terms of any
contracts, mortgages or deeds of trust covering the Building. Therefore, in the
event Tenant shall fail to pay any Rent, Additional Rent or other sums payable
by Tenant under this Lease for seven (7) days after such amount is due, then
Tenant shall pay Landlord, as Additional Rent, a late charge ("Late Charge")
(chargeable only once to each separate late amount) only equal to four percent
(4%) of such amount owing, but not in excess of the highest rate permitted by
law. In addition to any Late Charges which may be incurred hereunder, any Rent,
Additional Rent or other sums payable by Tenant under this Lease which are more
than thirty (30) days past due, shall bear interest at a rate equal to fourteen
percent (14%) per annum but not in excess of the highest lawful rate permitted
under applicable laws, calculated from the original due date thereof to the date
of payment ("Overdue Fee"); provided, however, the minimum Overdue Fee shall be
One Hundred Dollars ($100.00).
Landlord acknowledges that it is the general business practice of
Landlord to contact tenants in the event of nonpayment or late payment of rent.
However, failure of Landlord to do so shall in no way limit the responsibility
of Tenant to pay Rent and all other amounts payable hereunder when due, or to
pay a late charge if a failure to be make a payment continues for 7 days after
the date the payment was due.
In addition, if payments are received by check or draft from Tenant,
and two (2) or more of such checks or drafts are dishonored by the bank or other
financial institution they were drawn upon in any twelve (12) month period,
Landlord may thereafter require all Rent and other payments due hereunder from
Tenant to Landlord to be made by bank cashier's or bank certified check or other
similar means of payment and Landlord shall not be required to accept any checks
or drafts of Tenant which do not comply, with such requirements.
(g) Force Majeure: Except for the payment of Rent, Additional Rent
and other sums payable by Tenant, time periods for Tenant's or Landlord's
performance under any provisions of this Lease shall be extended for periods of
time during which Tenant's or Landlord's performance is prevented due to
circumstances beyond Tenant's or Landlord's reasonable control; provided,
however, that the time periods set forth in Section 3(i) and 4(a) for delays
caused by Force Majeure shall not be further extended due to additional delay
caused solely by Force Majeure.
-30-
<PAGE> 32
(h) Right to Change Public Spaces: Landlord shall have the right to
change the arrangement or location of such of the following as are not contained
within the Premises or any part thereof: entrances, passageways, doors and
doorways, corridors, stairs, toilets and other like public service portions of
the Building. Nevertheless, in no event shall Landlord diminish any service,
change arrangement or location of the elevators serving the Premises, make any
change which shall diminish the area of the Premises, make any change which
shall interfere with access to the Premises or change the character of the
Building from that of a first-class office building.
(i) Governing Law: This Lease shall be governed by and construed in
accordance with the laws of the State of Washington.
(j) Building Directory: If permitted under the historical building
designations imposed on the Building, Landlord shall maintain in the lobby of
Building a directory which shall include the name of Tenant and any other names
reasonably requested by Tenant in proportion to the number of listings given to
comparable tenants of the Building.
(k) Building Name: With the prior written consent of PMC, and
provided that Tenant's rights under this Section 37(k) shall remain in effect
only so long as Tenant substantially leases all of floors one (1) through (12)
of the Building, the building name shall be changed to incorporate "Amazon,"
"Amazon.com," or another name chosen by Tenant which Landlord reasonably
approves.
(l) Consents and Approvals; Certifications: Whenever by the terms of
this Lease the consent or approval of Landlord or Tenant is specifically
required, such consent or approval shall not be unreasonably withheld or delayed
except to the extent otherwise specifically provided herein. If either party
wishes to withhold any such consent or approval, such party shall promptly
notify the other party in writing specifying the reasons for withholding the
same. Any certificate or certification required hereunder shall be signed by a
duly authorized representative of the party making it and shall set forth the
information required hereunder with respect to such certificate, and the party
for whom it is made hereby warrants that the information given in each such
certificate will be complete and accurate in every material respect when given.
(m) Memorandum of Lease: Upon the request of either party, Landlord
and Tenant will execute and deliver, in recordable form, a memorandum or short
form of this Lease, and either Landlord or Tenant, at their respective options,
may record such memorandum or short form of this Lease.
(n) Pets. Tenant shall be entitled to bring pets to the Premises,
but only in accordance with the provisions set forth in Exhibit K attached
hereto.
IN WITNESS WHEREOF this Lease has been executed the day and year
first above set forth.
TENANT: AMAZON.COM, INC., a
Delaware corporation
By /s/ ALAN CAPLAN
--------------------------------------
Alan Caplan
--------------------------------------
of Amazon.com, Inc.
-----------------------------------
Its Vice President
-------------------------------
LANDLORD: WRC.COM TOWER LLC, a Washington
limited liability company
By: WRIGHT RUNSTAD ASSOCIATES LIMITED
PARTNERSHIP,
a Washington limited partnership,
its member
By: WRIGHT RUNSTAD & COMPANY, a
Washington corporation, its general
partner
By: /s/ WALT INGRAM
-------------------------------------
Its Sr. Vice President
----------------------------------
-31-
<PAGE> 33
GUARANTOR: WRIGHT RUNSTAD ASSOCIATES LIMITED
PARTNERSHIP, a Washington limited
partnership, signing solely for the
purposes set forth in Section 31 above
By: WRIGHT RUNSTAD & COMPANY, a
Washington corporation, its general
partner
By: /s/ WALT INGRAM
------------------------------------
Its Sr. Vice President
--------------------------------
NORTH LOT
LESSEE: WRC.COM DEVELOPMENT LLC, a Washington
limited liability company, signing solely
for the purposes set forth in Section
1(1) above
By: WRIGHT RUNSTAD ASSOCIATES LIMITED
PARTNERSHIP, a Washington limited
partnership, its member
By: WRIGHT RUNSTAD & COMPANY, a
Washington corporation, its general
partner
By: /s/ WALT INGRAM
--------------------------------
Its Sr. Vice President
----------------------------
-32-
<PAGE> 34
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 10th day of September, 1998, before me, the
undersigned, a notary public in and for the state aforesaid, duly commissioned
and sworn, personally appeared Alan Caplan to me known to be the Vice President
of AMAZON.COM, INC., the corporation that executed the within and foregoing
instrument, and acknowledged the said instrument to be the free and voluntary
act and deed of said corporation for the uses and purposes therein mentioned,
and on oath stated that they were authorized to execute said instrument, and
that the seal affixed, if any, is the corporate seal of said corporation.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Signature /s/ KAREN AKIYAMA RESSMEYER
------------------------------
[NOTARY PUBLIC SEAL] Printed Name KAREN AKIYAMA RESSMEYER
Notary public in and for the state of Washington
residing at Mercer Island
My appointment expires 12/29/99
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 11th day of September, 1998, before me, the
undersigned, a notary public in and for the state aforesaid, duly commissioned
and sworn, personally appeared Walt Ingram, to me known to be the Sr. Vice
President of WRIGHT RUNSTAD & COMPANY, the corporation that executed the within
and foregoing instrument on behalf of and as general partner for WRIGHT RUNSTAD
ASSOCIATES LIMITED PARTNERSHIP which in turn was acting on behalf of and as the
sole member and manager of WRC.COM TOWER LLC, and acknowledged the said
instrument to be the free and voluntary act and deed of said corporation,
partnership and limited liability company respectively for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said
instrument.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Signature /s/ MICHAEL D. KUNTZ
------------------------------
[NOTARY PUBLIC SEAL] Printed Name Michael D. Kuntz
Notary public in and for the state of Washington
residing at Mill Creek
My appointment expires 1-11-02
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 11th day of September, 1998, before me, the
undersigned, a notary public in and for the state of Washington, duly
commissioned and sworn, personally appeared Walt Ingram, to me known to be the
Sr. Vice President of WRIGHT RUNSTAD & COMPANY, the corporation that executed
the within and foregoing instrument on behalf of and as general partner for
WRIGHT RUNSTAD ASSOCIATES LIMITED PARTNERSHIP, and acknowledged the said
instrument to be the free and voluntary act and deed of said corporation and
limited partnership respectively for the uses and purposes therein mentioned,
and on oath stated that they were authorized to execute said instrument.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Signature /s/ MICHAEL D. KUNTZ
------------------------------
[NOTARY PUBLIC SEAL] Printed Name Michael D. Kuntz
Notary public in and for the state of Washington
residing at Mill Creek
My appointment expires 1-11-02
-33-
<PAGE> 35
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 14th day of September, 1998, before
me, the undersigned, a notary public in and for the state aforesaid, duly
commissioned and sworn, personally appeared Walt Ingram, to me known to be the
Sr. Vice President of WRIGHT RUNSTAD & COMPANY, the corporation that executed
the within and foregoing instrument on behalf of and as general partner for
WRIGHT RUNSTAD ASSOCIATES LIMITED PARTNERSHIP which in turn was acting on behalf
of an as the sole member and manager of WRC.COM DEVELOPMENT LLC, and
acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, partnership and limited liability company respectively for the
uses and purposes therein mentioned, and on oath stated that he was authorized
to execute said instrument.
WITNESS my hand and official seal the day and year in this
certificate first above written.
[SEAL] Signature /s/ MICHAEL D. KUNTZ
---------------------------------------
Printed Name Michael D. Kuntz
------------------------------------
Notary public in and for the state of Washington
residing at Mill Creek
-------------------------------------
My appointment expires 1-11-02
--------------------------
-34-
<PAGE> 36
EXHIBIT A
Legal Description of Land
Lots 1 through 5 and 20 through 24, Block 4, and Lots 4 through 9 and 26
through 31, Block 8, Golf Heights Addition to City of Seattle as described in
the Plat thereof recorded in Volume 24, Page 12, Records of King County,
Washington, together with the streets and alleys attaching thereto by operation
of law as vacated by City of Seattle under Ordinance No. 59530.
EXHIBIT A
PAGE 1 OF 1
<PAGE> 37
EXHIBIT A-1
Floor Plan of Premises
WRIGHT RUNSTAD & COMPANY Project Description
- --------------------------------------------------------------------------------
Scale: 1" - 56' GROUND 2 FLOOR PLAN
[N]
[] Roof 36,709 NRSF
[] Pac Med Amazon.com: 3,592 NRSF
PacMed: 32,120 NRSF
[GROUND 2 FLOOR PLAN MAP]
GROUND 1 FLOOR PLAN
37,869 NRSF
PacMed: 37,869 NRSF
[GROUND 1 FLOOR PLAN MAP]
<PAGE> 38
WRIGHT RUNSTAD & COMPANY Project Description
- --------------------------------------------------------------------------------
FIRST FLOOR PLAN
30,505 NRSF
Amazon.com: 29,973 NRSF
Gentle Dental: 3,532 NRSF
[MAP]
SECOND FLOOR PLAN
22,159 NRSF
Amazon.com: 22,125 NRSF
[MAP]
<PAGE> 39
WRIGHT RUNSTAD & COMPANY Project Description
- -------------------------------------------------------------------------------
Scale: 1" = 56'
[ ] Roof
THIRD FLOOR PLAN
17,992 NRSF
Amazon.com: 17,992 NRSF
[FLOOR PLAN MAP]
FOURTH - SEVENTH FLOOR PLAN
17,641 NRSF
Amazon.com: 17,641 NRSF
[FLOOR PLAN MAP]
<PAGE> 40
WRIGHT RUNSTAD & COMPANY Project Description
- -------------------------------------------------------------------------------
Scale: 1" = 56'
[ ] Roof
EIGHTH FLOOR PLAN
14,454 NRSF
Amazon.com: 14,454 NRSF
[FLOOR PLAN]
NINTH FLOOR PLAN
10,786 NRSF
Amazon.com: 10,786 NRSF
[FLOOR PLAN]
<PAGE> 41
WRIGHT RUNSTAD & COMPANY Project Description
- -------------------------------------------------------------------------------
Scale: 1" = 56'
[ ] Roof
TENTH FLOOR PLAN
6,486 NRSF
Amazon.com: 6,486 NRSF
[FLOOR PLAN]
ELEVENTH FLOOR PLAN
7,119 NRSF
Amazon.com: 7,119 NRSF
[FLOOR PLAN]
TWELFTH FLOOR PLAN
2,959 NRSF
Amazon.com: 2,959 NRSF
[FLOOR PLAN]
<PAGE> 42
EXHIBIT B
TO
PACIFIC MEDICAL CENTER
LEASE AGREEMENT
TENANT IMPROVEMENTS FOR
AMAZON.COM, INC.
August 31, 1998
I. IMPROVEMENTS PROVIDED BY LANDLORD: Landlord agrees to
provide improvements to the Building and the Premises pursuant to the attached
Exhibit D, Base Building Specifications.
II. IMPROVEMENTS BY TENANT/REIMBURSEMENT BY LANDLORD: See
Section 3(b) of the Lease.
Landlord shall expedite all permits and government approvals and assume
specific responsibility for delivery of the Premises as defined in the Lease and
this Exhibit B, provided Tenant shall have met the drawing delivery dates herein
and, unless the general contractor engaged by Landlord to construct the shell
and core of the Building ("General Contractor") is chosen to construct the
Initial Tenant Improvements pursuant to Section V(A) below, Landlord shall
manage the bidding of tenant improvements to at least three (3) firms acceptable
to Tenant, one of which will be the General Contractor. The contractor selected
by Tenant to construct the Tenant Improvements shall be hereinafter known as the
"Tenant Improvement Contractor". In addition, Tenant shall have the right to
select its own subcontractors or service providers to perform the work listed
below. These subcontractors shall work under the direction of the Tenant
Improvement Contractor:
a) Telecommunications
b) Data Systems and Cabling
c) Security
d) Kitchen/Food Vending
e) Audio/Visual
f) Custom Furnishings
III. BUILDING STANDARD IMPROVEMENTS: Landlord and Tenant shall
mutually agree upon Building Standard details for lighting, window coverings;
doors; relites; hardware and ceiling treatment. Building Standards shall be
generally equal in quality to tenant improvement standards established for the
Second & Seneca Building, with appropriate adjustments to accommodate the
historic character of the Building.
Tenant shall use Building Standard heating, ventilating and air
conditioning distribution and controls.
IV. DESIGN OF TENANT IMPROVEMENTS: Tenant, at Tenant's cost
and with the approval of Landlord, has retained SPACE ("Tenant's Office
Planner") to prepare the necessary drawings for Basic Plans and supply the
information necessary to complete the Working Drawings and Engineering Drawings
referred to in Section IV(B) of this Exhibit B for construction of the tenant
improvements in Tenant's area. All Tenant's Plans and Working drawings, whether
initial or final, shall be prepared and submitted in two phases, the First Phase
being the First Phase Floors (inclusive of Floors 11 and 12) and the Second
Phase being the remainder of the Premises. Tenant's Plans shall be subject to
approval of Landlord (not to be unreasonably withheld or delayed) in
Exhibit B-1
<PAGE> 43
accordance with Section IV(C) of this Exhibit B, and Landlord agrees to respond
in writing with approval or comments within five (5) business days after receipt
of each component of Tenant's Plans.
Tenant's Office Planner shall ensure that the work shown on Tenant's
Plans is compatible with the basic Building Plans and that necessary basic
Building modifications are included in Tenant's Plans. Such modifications shall
be subject to Landlord approval. In the event that any of Tenant's design
requirements impact the Base Building design, so long as any changes can be
incorporated into the Base Building documents prior to document completion at no
cost to Landlord, then these changes to the Base Building documents shall be
included and Tenant shall not be required to pay for these changes to the
documents.
If such changes are made subsequent to completion of the Base Building
documents or Landlord's Architect reasonably charges Landlord for such changes,
then such modifications shall be subject to Landlord's reasonable approval and
the cost of the changes to the documents shall be paid by Tenant.
Any changes requested to the Base Building design by Tenant which
increase the cost of the Base Building construction shall, subject to the
process described in Section V(C) below, be paid by Tenant.
On or before the indicated dates, Tenant shall supply Landlord with one
(1) reproducible copy and five (5) black line prints of the following Tenant
Plans with respect to the Tenant Improvements in the entire Premises:
A. BASIC PLANS DELIVERY DATE: First Phase August 21, 1998
Second Phase September 30, 1998
The Basic Plans due on this date shall be signed by Tenant and include:
Architectural Floor Plans: These shall be fully dimensioned floor plans
showing partition layout and identifying each room with a number and each door
with a number. The Basic Plans must clearly identify and locate equipment
requiring plumbing or other special mechanical systems, area(s) subject to
above-normal floor loads, special openings in the floor, and other major or
special features.
B. WORKING DRAWINGS
(PERMIT SET) DELIVERY DATE: First Phase September 17, 1998
Second Phase October 27, 1998
On this date and at Tenant's expense, Tenant's Office Planner shall
produce four (4) sets of Full Working Drawings for construction from the Basic
Plans using the CADD System, which system shall be approved by Landlord for
compatibility with the other Building drawings. The four (4) sets of Working
Drawings due on this date shall be signed by the Tenant and include all items in
the Basic Plans referenced in Section IV(A) above plus the following additional
information:
(1) Electrical and Telephone Outlets: Locate all power and
telephone requirements: Dimension the position from a corner and give height
above concrete slab for all critically located outlets. Identify all dedicated
circuits and identify all power outlets greater than 120 volts. For the
equipment used in these outlets which require dedicated circuits and/or which
require greater than 120 volts, identify the, type of equipment, the
manufacturer's name and the manufacturer's model number, and submit a brochure
for each piece of equipment. Also identify the manufacturer's name of the phone
system to be used and the power requirements, size, and location of its
processing equipment.
(2) Reflected Ceiling Plan: Lighting layout showing location
and type of all Building Standard and special lighting fixtures.
(3) Furniture Layout: Layout showing furniture location so
that Landlord's engineer can review the location of all light fixtures.
Exhibit B-2
<PAGE> 44
C. FINAL PLANS REVIEW DATE: First Phase September 28, 1998
Second Phase December 7, 1998
On this date, Tenant's Office Planner shall deliver to Landlord and Tenant
for review and approval four (4) complete sets of Final Plans which will
incorporate the Working Drawings referenced in Section IV(B) above, plus the
following additional information:
(1) Millwork Details: These drawings shall be in final form
with Tenant's Office Planner's title block along the right border of the
drawing, and shall include construction details of all cabinets, paneling, trim,
bookcases, and door and jamb details for non-Building Standard doors and jambs.
(2) Keying Schedules and Hardware Information: This
information shall be in final form and include a preliminary Keying Schedule
indicating which doors are locked, plus an "X" on the side of the door where the
key will be inserted if a keyed door. Complete specifications for all
non-Building Standard hardware will also be provided. The final keying schedule
will be completed by February 1, 1999.
(3) Room Finish and Color Schedule: This information shall be
in final form and include locations and specifications for all wall finishes,
floor covering and base for each room.
(4) Construction Notes and Specifications: Complete
specifications for every item included except those specified by the Landlord.
D. FINAL PLANS DELIVERY DATE: First Phase October 9, 1998
Second Phase December 19, 1998
The four (4) sets of Final Plans approved by Landlord and Tenant shall
include all the Final Plans referenced in Section IV(C) above. Final Plans are
to be signed by Tenant and delivered to Landlord by the Final Plans Delivery
Date. Landlord shall return one (1) signed set to Tenant for Tenant's records.
Landlord will incorporate or submit Engineering Drawings with Tenant's Final
Plans for transmittal to the General Contractor.
Tenant shall be responsible for delays and additional costs in completion
of the Tenant Improvements incurred as a result of changes made to any of
Tenant's Plans after the specified Plan Delivery Date, delays caused by Tenant's
failure to comply with the Plan Delivery Dates, Tenant's failure to provide
adequate specifications or information for the completion of Tenant's Plans, or
by delays caused by Tenant's specification of special materials; but only to the
extent any of the foregoing delays or prevents critical path work or materially
adversely affects completion.
V. CONSTRUCTION OF TENANT IMPROVEMENTS
A. AUTHORIZATION TO PROCEED. Upon completion of Tenant's Final
Plans, the Final Plans will be submitted to General Contractor, for pricing.
General Contractor shall have three (3) weeks to provide their bid proposal with
respect to completion of the Initial Tenant Improvement Work pursuant to the
Final Plans, and if Tenant, Landlord and General Contractor have not agreed on
hiring General Contractor within two (2) weeks after receipt of General
Contractor's bid, then the work contemplated in Tenant's Final Plans shall go
out to bid as described in Article II above. The final construction contract to
be entered into between Landlord and the Tenant Improvement Contractor
(including, but not limited to, the price to be contained therein) shall also be
subject to Tenant's review and approval, such approval not to be unreasonably
withheld. If the General Contractor is not selected as the Tenant Improvement
Contractor, Landlord shall entertain bids from the three (3) firms and Landlord
and Tenant shall review all pricing documentation received from the bidding
tenant improvement contractors, including sub bids, quantities, and unit prices.
Within ten (1O) days of receipt of such prices and prior to execution of the
Initial Tenant Improvements construction contract, Tenant shall give Landlord
written authorization to complete the Premises in accordance with such Final
Plans and naming the Tenant Improvement Contractor. Tenant may in such
authorization delete any or all items of extra cost; however, if Landlord deems
these changes to be extensive, at its option, Landlord may within three (3)
business days of Tenant's written authorization refuse to accept the
authorization to proceed until all changes have been incorporated in the Final
Plans signed by Tenant and written acceptance of the revised price has been
received by Landlord from Tenant. In the absence of such written authorization
to proceed, then
Exhibit B-3
<PAGE> 45
Landlord shall not be obligated to commence work on the Premises and Tenant
shall be responsible for any costs due to any resulting delay in completion of
the Premises and as provided in Section 3(c) of the Lease.
B. PAYMENTS. Refer to Section 3(b) from the body of the Lease.
C. FINAL PLANS AND MODIFICATIONS. If Tenant shall request any change
after the Final Plans are submitted, Tenant shall request such change in writing
to Landlord and such request shall be accompanied by all plans and
specifications necessary to show and explain changes from the approved Final
Plans. After receiving this information, Landlord shall give Tenant within five
(5) business days a written price for the cost of engineering design services,
an estimate of construction costs to incorporate the change in Tenant's Final
Plans and an estimate of any Tenant Delay which may arise as a result of such
changes. If Tenant approves such price in writing within five (5) business days,
Tenant shall within five (5) business days have such Final Plans changes made to
engineering drawings and Tenant shall have changes made to other Final Plan
design documents. Within three (3) business days after completion of such
changes in the Final Plans, Landlord shall provide Tenant a written breakdown of
the final costs, if any, which shall be chargeable or credited to Tenant for
such change, addition or deletion and any impact such changes shall have on the
schedule. The cost for such changes, whether chargeable or credited to Tenant,
shall include a 3% Landlord coordination fee. If Tenant wishes to proceed with
such changes, Tenant shall within five (5) business days so notify Landlord in
writing. In the absence of such notice, Landlord shall proceed in accordance
with the previously approved Final Plans before such change, addition or
deletion was requested. In accordance with Section 3(c) of the Lease, Tenant
shall be responsible for any resulting delay in completion of the Premises due
to modification of Final Plans. Tenant shall also be responsible for any
additional demolition work required as a result of the change.
D. IMPROVEMENTS CONSTRUCTED BY TENANT. If any work is to be performed
in connection with the Initial Tenant Improvements on the Premises by Tenant or
Tenant's contractor:
(1) Such work shall proceed upon Landlord's written approval (not to
be unreasonably withheld) of (i) Tenant's contractor, (ii) general liability and
property damage insurance satisfactory to Landlord carried by Tenant's
contractor, which insurance shall not be required to exceed levels carried by
General Contractor, (iii) detailed plans and specifications for such work, and
(iv) amount of general conditions directly attributable to work performed by
Tenant's contractor and approved in advance by Tenant to be paid by Tenant to
Landlord for the services still provided by General Contractor or Tenant
Improvement Contractor.
(2) All work shall be done in conformity with a valid building permit
when required, a copy of which shall be furnished for Landlord before such work
is commenced, and in any case, all such work shall be performed in accordance
with all applicable governmental regulations. Notwithstanding any failure by
Landlord to object to any such work, Landlord shall have no responsibility for
Tenant's failure to meet all applicable regulations.
(3) All work by Tenant or Tenant's contractor shall be done with union
labor in accordance with all union labor agreements applicable to the trades
being employed, unless otherwise approved in writing by Landlord, which approval
shall not be unreasonably withheld or delayed so long as in Landlord's
reasonable judgment the use of nonunion labor will not result in labor strife or
unrest. Notwithstanding the foregoing, (i) the subcontractors to provide
services identified in Section II(a) through (f) above shall not be required to
use union labor, and (ii) if Tenant desires to use nonunion labor for the Tenant
Improvements despite Landlord's disapproval as provided herein, Tenant may do
so, but all delays in the completion of Landlord's Work and/or the Tenant
Improvements to the extent due to labor strife or unrest shall constitute
"Tenant Delay" hereunder.
(4) All work by Tenant or Tenant's contractor shall be scheduled
through Landlord or, with Landlord's approval, directly with the General
Contractor or Tenant Improvement Contractor. Landlord shall make best efforts to
accommodate work by Tenant or Tenant's contractor during times requested.
(5) Tenant or Tenant's contractor shall arrange for necessary utility,
hoisting and elevator service with the General Contractor or the Tenant
improvement Contractor and shall pay such reasonable charges for such services
as may be charged by the General
Exhibit B-4
<PAGE> 46
Contractor or the Tenant Improvement Contractor. This will be included in the
general conditions of Subsection (1)(iv) above.
(6) Tenant shall promptly reimburse Landlord for costs
incurred by Landlord due to faulty work done by Tenant or its contractors, or by
reason of any delays caused by such work, or by reason of inadequate clean-up.
Tenant shall receive notice from Landlord and a reasonable opportunity to cure
damages prior to Landlord undertaking corrective action.
(7) Prior to commencement of any work on the Premises by
Tenant or Tenant's contractor, Tenant or Tenant's contractor shall enter into an
indemnity agreement and a lien priority agreement satisfactory to Landlord
indemnifying and holding harmless Landlord and the General Contractor or the
Tenant Improvement Contractor for any liability, losses or damages directly or
indirectly from lien claims affecting the land, the Building or the Premises
arising out of Tenant's or Tenant's contractor's work or that of subcontractor
or suppliers, and subordinating any such liens to the liens of construction and
permanent financing for the Building.
(8) Landlord shall have the right to post a notice or notices
in conspicuous places in or about the Premises announcing its non-responsibility
for the work being performed therein.
E. TENANT'S ENTRY TO PREMISES. Tenant's entry to any portion of the
Premises for any purpose, including without limitation, inspection or
performance of Tenant Construction by Tenant's agents, prior to a Premises
Delivery Date for such portion shall be scheduled in advance with Landlord and
shall be subject to all the terms and conditions of the Lease, except the
payment of Rent and Additional Rent. Tenant's entry shall mean entry by Tenant,
its officers, contractors, Office Planner, licensees, agents, servants,
employees, guests, invitees, or visitors. Landlord will make reasonable efforts
to accommodate Tenant's request for access to the Premises at all times, and
will use reasonable best efforts to permit Tenant and its contractors to enter
onto unfinished portions of the Premises prior to the applicable Premises
Delivery Date so long as such entry does not interfere with or delay Landlords'
Work therein. Tenant will supply Landlord with a pre-approved list of
individuals who will be allowed to have access to the Premises prior to the
Commencement Date.
F. TENANT'S TELEPHONE AND COMPUTER/DATA SERVICE. Tenant is responsible
for Tenant's telephone service, computer and data service, obtaining any
applicable PERMITS, and related cabling. Tenant shall select and coordinate
installation of such communication and information SYSTEMS with the Landlord
pursuant to Section 36 of the Lease and item V(D)(4) of this Exhibit B.
Exhibit B-5
<PAGE> 47
EXHIBIT C
ADDENDUM TO THE LEASE AGREEMENT BETWEEN
WRC.COM TOWER LLC ("LANDLORD")
AND
AMAZON.COM, INC. ("TENANT")
DATED AUGUST 31, 1998
1. Option to Extend the Term of the Lease. Tenant shall have the
right, to be exercised as hereinafter provided, to extend the term of this
Lease ("Extension Options") for the entire Premises for two (2) periods of five
(5) years each (the "First Extension Term" and "Second Extension Tenn,"
respectively, and each an "Extension Term") from the Expiration Date specified
in Section 1(g) of this Lease. If Tenant exercises its Extension Option,
Landlord and Tenant shall execute and deliver an amendment to the Lease under
the same terms and conditions as this Lease, provided that:
(a) For the purposes of this Section 3, "same terms and
conditions" shall not be construed to include free rent, costs of tenant
improvements, leasing commissions, options to renew or extend (except that
during the First Extension Term Tenant shall still be entitled to exercise the
Second Extension Term) or any other concessions related to the initial occupancy
of the Premises.
(b) Tenant shall not at the time the option notice is
delivered to Landlord or at the commencement of the applicable Extension Term be
in default (beyond applicable notice and cure periods) in the performance of any
term, covenant, or condition herein contained.
(c) The Rent for the Extension Term(s) shall be the Fair
Market Renewal Rate, defined hereafter. "Fair Market Renewal Rate" shall mean
the projected net fair market rental rate at the commencement of the Extension
Term for renewal lease space in the Building or renewal lease space in
comparable office buildings of similar size and stature, comparably located, for
a comparable term, taking into consideration all relevant factors (including,
without limitation, age, physical condition, total square footage, quality of
construction, services included and the refurbishment allowance set forth below,
but excluding consideration of Tenant improvements in the Premises to the extent
the cost thereof exceeded $25 per net rentable square foot), provided, however,
that such rate shall not be less than the net rental rate for the last year of
the term immediately preceding the Extension Term. When considering comparable
rents, appropriate adjustment shall be made for the fact that the Rent is net of
all Operating Costs and Taxes. Parking fees for Tenant's parking spaces during
the Extension Terms shall be adjusted to then market rates using the same
process used for the determination of Extension Term Rent.
(d) On the effective date of the First Extended Term, Landlord
will provide a refurbishment allowance of Seven Dollars ($7.00) per rentable
square foot leased by Tenant (excluding Storage Space). If as a result of a
foreclosure on Landlord's interest in this Lease or a transfer in lieu thereof
the successor to Landlord's interest is not obligated to honor payment of the
refurbishment allowance, the failure to pay the refurbishment allowance shall be
considered in determining the Fair Market Renewal Rate.
(e) Tenant shall exercise any Extension Option by written
notice to Landlord no later than eighteen (18) months prior to expiration of
the then current Lease term. If Tenant does not so exercise an Extension Option,
the Lease shall expire on the Expiration Date specified in the then current
lease. At any time prior to the exercise of an Extension Option, and at the
request of Tenant, Landlord will provide Tenant with a nonbinding estimate of
Landlord's rental rate for an upcoming extension term.
(f) Landlord shall furnish its rental rate to tenant at least
twelve (12) months prior to expiration of the then current Lease Term. Landlord
and Tenant shall attempt to reach agreement as to the Fair Market Renewal Rate
at least one hundred twenty (120) days prior to the
Exhibit C-1
<PAGE> 48
commencement of the applicable Extension Term, and failing to reach such
agreement the Fair Market Renewal Rate shall be determined as follows:
Within fifteen (15) days after the expiration of the
above-mentioned one hundred twenty (120) 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
professional conducting business in Seattle, Washington and
having not less than ten (10) years active experience as a
real estate professional in the downtown office leasing market
in Seattle, Washington. 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.
If requested by either party, the named experts shall conduct
a hearing at which both Landlord and Tenant may introduce
evidence and argument as to the Fair Market Renewal Rate. The
hearing shall last no more than two (2) days, and shall not be
subject to the rules of evidence or discovery.
The named experts shall together determine the Fair Market
Renewal Rate. If the experts fail to agree on the Fair Market
Renewal Rate within thirty (30) days of their appointment and
the difference in their conclusions about Fair Market Renewal
Rate is ten percent (10%) or less of the lower of the two
determinations, Fair Market Renewal Rate shall be the average
of the two determinations.
If the two experts fail to agree on Fair Market Renewal Rate
and the difference between the two determinations exceeds ten
percent (10%) of the lower of the two determinations, then
they shall select a similarly qualified third appraiser (the
"Neutral Appraiser"). Within twenty days after selection of
the Neutral Appraiser, the three appraisers shall
simultaneously exchange determinations of Base Rent. If the
lowest appraisal is not less than ninety percent (90%) of the
highest appraisal, then the three appraisals shall be averaged
and the result shall be the Fair Market Rent. If the lowest
appraisal is less than ninety percent (90%) of the highest
appraisal, then the two closest appraisals (in dollar amount)
shall be averaged to determine the Fair Market Rent. Landlord
and Tenant shall each execute and deliver an agreement
confirming annual rent for the Extension 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
Neutral Appraiser, if any.
2. Storage Space. Upon Tenant's request, Landlord shall provide upon
Tenant's occupancy (or later, at Tenant's election) approximately 1,924 usable
square feet of storage space on the thirteenth (13th) Floor of the Building (the
"Tower Storage Space"). Rent for the Tower Storage Space for the initial term of
the Lease shall be twelve dollars ($12) per usable square foot for the first
five (5) Lease Years and thirteen dollars ($13) per usable square feet for the
second five (5) Lease Years. The Tower Storage Space will not be included in
Tenant's Pro Rata Share or in the calculation of the net rentable area of the
Building. Rates for the Tower Storage Space during the Extension Terms shall be
adjusted to then market rates using the same process used for the determination
of Extension Term Rent. Load limits in the Tower Storage Space may not exceed 75
pounds per square foot.
If Landlord constructs the new parking facility, Landlord will make
available for lease by Tenant any storage space contained within the parking
facility (up to 1,000 square feet of storage space) at a rate of $12 per square
foot during the first five (5) Lease Years, $13 per square foot during the
second five (5) Lease Years, and at market rates for any Extension Terms. If
Landlord constructs the new parking facility, Landlord will consult with Tenant
regarding the opportunity to develop storage space in the parking facility and
the anticipated storage needs of Tenant.
3. Satellite Dish/Antenna: Tenant shall have the right to install one
or more satellite dishes and/or antennas on the Building at no additional
charge, provided such installation complies with all applicable laws and codes
and subject to any preexisting satellite dishes or antennae, and subject to the
terms and conditions of Section 36 of this Lease.
Exhibit C-2
<PAGE> 49
4. Arbitration for Construction Matters.
(a) Applicability: Joinder; Statute of Limitations. All
disputes, controversies and claims arising out of or relating to the
construction of the Tenant Improvements in the Premises shall be settled by
expedited mandatory arbitration as set forth in this Section 4. All statutes of
limitations which would otherwise be applicable and any limitations upon claims
set forth in this Agreement shall apply to any arbitration proceeding under this
Section 4.
(b) Notice of Demand. Either party may demand arbitration by
notifying the other party in writing in accordance with the notice provisions of
Section 4. The notice shall describe the reasons for such demand, the amount
involved, if any, and the particular remedy sought, and shall specifically
reference the required five (5) day response time specified in Subsection (c)
below. The notice shall also list the name of one arbitrator qualified in
accordance with Subsection (d).
(c) Response. The party that has not demanded arbitration
shall respond to the notice of demand within five (5) calendar days of receipt
of such notice by delivering a written response in accordance with the notice
provisions of Section 4. The response shall list the name of a second arbitrator
qualified in accordance with Subsection (d). The response shall also describe
counterclaim, if any, the amount involved, and the particular remedy sought.
If a party fails to respond timely to the notice of demand, the arbitrator
selected by the party making such demand under Subsection (b) shall resolve the
dispute, controversy or claim within seven (7) calendar days of the deadline for
response
(d) Qualified Arbitrator. Any arbitrator selected in
accordance with Subsections (b) and (c) shall be any natural person not employed
by either of the parties or any parent or affiliated partnership, corporation or
other enterprise thereof, who shall also be a construction professional with at
least ten (10) years experience in the downtown Seattle real estate market.
(e) Appointment of Third Arbitrator. If a party responds
timely to a notice of demand for expedited arbitration under Subsection (c), the
two arbitrators shall appoint a third arbitrator who shall be qualified in
accordance with Subsection (d). Such third arbitrator shall be appointed within
seven (7) calendar days of receipt by the party demanding arbitration of notice
of response provided for under Subsection (c). If the two arbitrators fail to
timely appoint a third arbitrator, the third arbitrator shall be appointed by
the parties if they can agree within a period of five (5) calendar days. If the
parties cannot timely agree, then either party may request the appointment of
such third arbitrator by the Presiding Judge of the Superior Court of King
County, Washington; provided that the other party shall not raise any question
as to the court's full power and jurisdiction to entertain such application and
to make such appointment.
(f) Arbitration Hearing: Discovery; Venue. The arbitration
hearing shall commence within five (5) calendar days of appointment of the third
arbitrator as described in Subsection (e). The hearing shall in no event last
longer than two (2) calendar days. There shall be no discovery or dispositive
motion practice (such as motions for summary judgment or to dismiss or the like)
except as may be permitted by the arbitrators; and any such discovery or
dispositive motion practice permitted by the arbitrators shall accommodate to
the maximum extent practical the time limits contained herein. The arbitrators
shall not be bound by any rules of civil procedure or evidence, but rather shall
consider such writings and oral presentations as reasonable business persons
would use in the conduct of their day to day affairs, and may require the
parties to submit some or all of their case by written declaration or such other
manner of presentation as the arbitrators may determine to be appropriate. It is
the intention of the parties to limit live testimony and cross examination to
the extent absolutely necessary to insure a fair hearing to the parties on
significant and material issues. Venue of any arbitration hearing conduct
pursuant to this agreement shall be in Seattle, Washington. It is also the
intention of the parties that any such arbitration shall not interfere with the
continued construction of the Tenant Improvements, and unless the dispute in
question makes it impossible for such construction to continue, the pending
arbitration shall not affect such construction schedule.
(g) Decision. The arbitrators' decision shall be made in no
event later than seven (7) calendar days of the commencement of the arbitration
hearing described in Subsection (f). If three (3) arbitrators are appointed, a
majority decision shall prevail. The award shall be final and judgment may be
entered in any court having jurisdiction thereof. The arbitrators may award
specific performance of this Agreement. The arbitrators may also require
remedial measures as part of any award. The arbitrators may award attorneys'
fees and costs to the more prevailing party.
Exhibit C-3
<PAGE> 50
5. Right of First Opportunity to Lease Additional Space. Tenant shall
have an ongoing Right of First Opportunity to lease additional space in the
Building in accordance with the provisions of this Section 5. In the event PMC
or the successor to the PMC space in the Building, elects to relinquish all or
a portion of its space in the Building, and if such additional space has been
added to the premises demised to Landlord as tenant under the Ground Lease, and
is not subject to "medical use" restrictions as provided in the Restriction
Documents, or if the space on the first floor of the Building not leased to
Tenant becomes available, Landlord shall give Tenant written notice specifying
the amount of space available and the date upon which space is available. If
Tenant wishes to lease such space, Tenant shall respond in writing to
Landlord's notice within ten (10) business days after receipt of Landlord's
notice. Tenant's lease of such space shall be upon all of the terms and
conditions contained in this Lease, including Rent, except that the Allowance
payable to Tenant for such space shall be prorated based upon the portion of the
original term then remaining. No Additional Allowance shall be available for
such space. If Tenant elects not to lease such space, or if Tenant fails to
respond within the 10-day period, Landlord shall be free to lease such space to
such tenants and upon such terms as Landlord may desire, subject to the Right
of First Offer described in Section 6 below of this Exhibit C.
6. Right of First Offer. Tenant shall have an ongoing Right of First
Offer to lease available space in the Building in accordance with the
provisions with this Section 6. In the event PMC, or the successor to the PMC
space in the Building, has relinquished all or a portion of its space in the
Building, and if such additional space has been added to the premises demised
to Landlord as tenant under the Ground Lease, and is not subject to "medical
use" restrictions as provided in the Restriction Documents or if the space on
the first floor of the Building not leased to Tenant becomes available, then,
upon Landlord's decision to present a proposal to a prospective tenant, but
prior to Landlord's entry in negotiations with such tenant or other tenants for
the available space in the Building, Landlord shall provide Tenant with written
notice specifying the amount of space that is being proposed and the proposed
commencement date. If Tenant wishes to lease such space, Tenant shall respond
in writing to Landlord's notice within ten (10) business days after receipt of
Landlord's notice. Tenant's lease of such space shall be upon all of the terms
and conditions contained in this Lease, including Rent, except that the
Allowance payable to Tenant for such space shall be prorated based upon the
portion of the original term then remaining. No Additional Allowance shall be
available for such space. If Tenant elects not to lease such space, or if
Tenant fails to respond within the 10-day period, Landlord shall be free to
lease such space to such tenants and upon such terms as Landlord may desire,
and the Right of First Opportunity described in Section 5 of this Exhibit C
shall not apply. Notwithstanding the foregoing sentence, if Landlord has not
leased all such space within one hundred eighty (180) days after delivery of
Landlord's Notice (provided that such period may be extended by an additional
180 days if Landlord has entered into a letter of intent as to such space
within the initial 180-day period), Landlord again shall be required to comply
with the provisions of this Section 6 with respect to any such space not so
leased to third parties.
7. Expansion of Right of First Opportunity and Right of First Offer. If
and to the extent that certain property referred to as "Parcel C" in the REA is
leased by PMC to Landlord, Parcel C shall become subject to the Right of First
Opportunity and Right of First Offer set forth above except that the Rent
applicable to premises outside the Building shall be set at Fair Market Rent
determined pursuant to Section 1 of this Exhibit C (excluding, however, any
requirement for Landlord to provide any refurbishment allowance in connection
therewith).
8. Right of First Opportunity to Lease Rooftop. Tenant shall have an
ongoing right of first opportunity to lease space on the rooftop of the
Building for antenna and similar telecommunication purposes. If Landlord
desires to lease space on the rooftop of the Building for antenna and similar
telecommunication purposes, Landlord shall give Tenant written notice of
Landlord's desire to do so (the "Rooftop Notice"). If Tenant wishes to lease
such rooftop space, Tenant shall respond in writing to the Rooftop Notice
within 10 business days after receipt of the Rooftop Notice. Tenant's lease
shall be on market terms and conditions, consistent with terms for rooftop
leases at other facilities owned or managed by Landlord or entities under
common control with Landlord. Any dispute as to such terms and conditions
(including market rents) shall be resolved by arbitration in the same manner as
set forth in Section 4 above.
If Tenant elects not to lease such space, or if Tenant fails to respond
within the 10-day period following the Rooftop Notice, Landlord shall be free
to lease such rooftop space on market terms and conditions to such tenants as
Landlord may determine. Notwithstanding the foregoing, if Landlord has not
leased all rooftop space within 180 days after delivery of the Rooftop Notice
(provided that such period may be extended by an additional 180 days if
Landlord has entered into a letter of intent
Exhibit C-4
<PAGE> 51
as to such rooftop space within the initial 180-day period), Landlord shall
again be required to comply with the provisions of this Section 8 before
leasing remaining rooftop space to third parties.
The provisions of this Section 8 shall not apply to the 10% of the rooftop
space required to be provided to Tenant at no additional charge pursuant to
Section 36 of the Lease. In addition, the provisions of this Section 8 shall
not apply to the rights of parties under the Existing Rooftop Leases.
9. Unused Allowance. If in connection with the exercise of the Right of
First Opportunity or Right of First Offer set forth above, Tenant elects not to
use all of the Allowance available to Tenant, Tenant shall be entitled to a
reduction in Rent equal to the amount of the unused allowance amortized over the
remaining Term of the Lease at 12.9% per annum.
10. REA Matters. Pursuant to the terms of the Ground Lease, PMC may not
amend the REA or revise the rules and regulations referenced herein without the
prior approval of Landlord. During the term of this Lease, Landlord agrees not
to approve any amendments to the REA or revisions to the rules and regulations
referenced therein without the prior approval of Tenant, which approval shall
not be unreasonably withheld or delayed. Tenant agrees to comply with the REA
and the rules and regulations referenced therein during the term of the Lease.
11. High Technology Tax Deferral. The Rent payable hereunder may be
reduced by the High Technology Sale/Use Tax Deferral that Tenant and Landlord
may receive from the Washington State Department of Revenue. Tenant (with the
cooperation of Landlord) shall apply for the tax deferral as soon as practicable
and shall diligently pursue obtaining the deferral. The reduction in the Rent
will be spread over the first eight (8) Lease Years of the Term to reflect one
hundred percent (100%) of the tax credits and deferrals realized by Landlord
pursuant to the applicable legislation (RCW 82.63). The aggregate amount of such
credit shall be divided by 96 (eight years times twelve months per year) and the
quotient shall be the amount of the credit in monthly rent attributable to this
tax deferral (the "Tax Credit"). Tenant shall initially pay the Rent without
deduction for the Tax Credit, and upon receipt of such payments Landlord shall
deposit the Tax Credit into a separate interest-bearing account (with interest
accruing to the benefit of Tenant, subject to the terms of this Section), until
the balance in such account, including accrued interest, equals the amount of
such tax deferral plus penalties and interest, if any that would have to be
repaid to the Washington State Department of Revenue at that time if the tax
deferral was terminated. Once the balance of that account equals the repayment
obligation, Tenant may deduct the full Tax Credit from monthly Rent, and
Landlord shall release to Tenant all amounts in that account in excess of then
current repayment obligation until the balance of that account is reduced to
zero. Landlord's obligations under this Section and Tenant's ability to benefit
from the Tax Credit are expressly conditioned on Tenant continuing to comply
with the requirements imposed on a tenant of the tax deferral law, and Tenant
hereby so covenants to comply with that law. The rent credit calculation will be
made no later than thirty (30) days after Landlord has received both a final
billing from the contractors constructing the Landlord's Work and Tenant
Improvements and a determination of qualification for such credit from the
Washington State Department of Revenue.
Any assignment of this Lease by Landlord, whether voluntary or through
involuntary assignment or transfer such as bankruptcy or foreclosure, shall
automatically and without further action by either party cause an assignment of
the Tax Credit account to the assignee (and the parties shall execute such
documents as necessary to reflect such assignment).
12. Decorative Star. Pursuant to the terms of the REA, Landlord agreed to
cooperate with PMC regarding the preservation of the holiday tradition of
placing a decorative star on the Building. Notwithstanding the terms of the
REA, Landlord will not permit such star to be installed or displayed on the
Building after Tenant has taken occupancy of the Premises without the prior
approval of Tenant.
Exhibit C-5
<PAGE> 52
EXHIBIT D
BASE BUILDING SPECIFICATIONS
BASE BUILDING SPECIFICATIONS
A. SERVICE CORE
B. EXTERIOR WALLS
C. FLOORS
D. DECKS
E. MECHANICAL
F. CEILING
G. ELECTRICAL/POWER
H. LIGHTING
I. DOORS
J. LIFE SAFETY
K. ELEVATORS AND FREIGHT FACILITIES
L. PARKING
M. SECURITY
1
<PAGE> 53
EXHIBIT D
BASE BUILDING SPECIFICATIONS
BASE BUILDING CORE
A. SERVICE CORE
1. At all levels, except the 1st floor, the elevator lobby and core walls
shall be ready for Tenant finish (fire taped).
2. 1st floor elevator lobby installed and complete.
3. Stairways as required by code. Floors normally locked from stairwell;
could be accessed by cardreader at Tenant expense.
4. Electrical and telephone rooms and mechanical shafts on each floor.
5. Electrical closets complete with service distribution panel boards and
transformers.
6. Six janitor closets will be provided, located approximately on every
other floor.
7. Men's and women's washrooms on each floor finished with:
a. Ceramic tile on floors and wet walls, up to approximately one foot
below ceiling.
b. Other walls and ceilings finish painted.
c. Vanities, cubicles, accessories, fixtures, trim lighting and all
mechanical and plumbing services complete, including hot water.
d. In compliance with all applicable laws and codes.
e. Fixture quantity per base building code; additional fixtures at
Tenant expense. All Base Building restroom finishes to be comparable
in cost to the Second & Seneca Building.
8. All hardware, including locking devices and closures for utility rooms and
stairwells, excluding hold opens. No locking devices in restrooms except
in stalls.
9. Water and drainage on each floor.
a. Access at the core to domestic water, drainage and vent systems.
b. Two (2) wet columns per floor, to be located by Amazon.
c. One (1) drinking fountain per floor, with chilled water installed, as
per applicable code.
d. Water heating system for hot water installed at the restroom only.
2
<PAGE> 54
10. Communication sleeves provided for:
a. Telephone and data communication cables to each floor. (Cabling and
wiring not included).
b. Cables and wiring from the roof to each floor for antenna and data
transmission (Cabling and wiring not included).
11. Access to utility telephone serve will be provided through existing risers.
B. EXTERIOR WALLS
1. Perimeter walls:
a. Seismic upgrade per code (where required), including metal studs and
insulation.
b. Plaster or drywall where existing.
c. Metal studs and insulation at new portion of tower.
2. The interior of the perimeter windows to be prepared and paint ready.
C. FLOORS
1. The existing building supports a maximum live load of 60 lbs. per square
foot and a partition load of 20 lbs. per square foot, except that at floor
13, the maximum load shall be 75 lbs. per square foot. Any additional
loading capacity required for a cafeteria or other tenant uses, shall be
at the tenant's expense.
2. Smooth and ready to receive carpet.
D. DECKS
1. Mechanical equipment located on decks, that is not required for the tower
upgrade, will be removed. Code-required handrails will be installed on the
decks located on level 8 and 9, on the newer portion of the tower. For
these and any other decks that the tenant would like to utilize, all
upgrades, including structural, code-required and finishes to accommodate
access, will be at the tenant's expense.
E. MECHANICAL
HVAC system and design criteria shall comply with ASHRAE and other pertinent
codes. In no event shall compliance with ASHRAE and other codes reduce the HVAC
requirements as outlined in this section.
1. The building HVAC system is designed for 250 rentable square feet per
person.
<PAGE> 55
2. Air Conditioning shall be sized on building load, plus occupant and heat
gain, per the 1997 Washington State Energy Code and Washington State
Ventilation and Air Quality Code. Minimum outside air ventilation rates
at 20 CFM per person.
3. HVAC shall be a system designed to provide zones, each of 1200 usable
square feet maximum. Usual zones are 1 per conference room, approximately
up to 4 offices on one zone or any average of 1,000 square feet in open
office.
4. HVAC systems to service core, utility rooms and restrooms on all floors.
5. Central heating and air-cooling equipment with necessary controls, main
A/C duct trunk line and main fan system installed and operational.
6. Heating energy source shall be electric.
7. Toilet exhaust systems to be designed to accommodate 2 CFM per sq. ft.
8. Fresh air ventilation shall be provided to satisfy local energy codes for
office buildings or appropriate ASHRAE standards, whichever is more
stringent.
F. CEILING
1. Installed in 1st floor lobby, restrooms and elevator cab only.
2. Existing ceiling areas are to be stripped of existing suspended ceilings
and abandoned mechanical and electrical systems and equipment.
G. ELECTRICAL/POWER
Landlord shall provide in the Base Building a minimum of eight (8.0) watts per
usable square foot including adequate K13 transformers and panels for electrical
power, HVAC and lighting requirements.
NOTE: These are demand loads and do not include base-building equipment power
requirements.
1. No high voltage risers; 480 V riser to provide minimum of 8.0 watts per
square foot.
2. Utility company transformers are provided.
3. System provides minimum of 1.2 watts per square foot per Seattle energy
code standards for lighting and 5.0 watts per square foot for receptacles.
4
<PAGE> 56
4. Life safety systems and all emergency lighting will be backed up by an
emergency generator.
5. Emergency lighting as required by code at the shell and core only will be
provided.
6. The landlord shall pay for utility costs during tenant build-out.
7. Provisions for both general and clean isolated ground and (dedicated)
power circuits Tenant to clarify requirements. (Cabling and wiring not
included).
8. The Building shall accommodate installing local emergency generators and
fuel tank for tenant use only at any point during the lease term, at
Tenant's expense; location to be established by mutual agreement.
9. The capability for separate metering or monitoring. Meters or monitors at
Tenant expense. (PacMed will be separately metered.)
10. Isolated ground at each electrical closet.
H. LIGHTING
1. Installed and operating in main lobby, stairwells, elevators, restrooms
and utility rooms.
2. Emergency lighting required by code to have emergency power supply from
emergency generator.
I. DOORS
1. Doors for stairwells, electrical rooms and telephone rooms shall be
provided. New solid core wood doors shall be installed for restrooms.
J. LIFE SAFETY
1. Sprinkler System
a. The fire sprinkler system, including sprinkler risers and main loop,
installed.
b. Sprinkler heads installed and operational in the core, including
concealed heads in main lobby, restrooms and utility rooms.
2. Firehose and extinguisher cabinets with extinguishers and/or hoses
finished and installed at each stairwell as required by code.
5
<PAGE> 57
3. Smoke detectors in main lobby, restrooms and utility rooms.
4. Exit signs at the core illuminated with power shall be backed up by an
emergency source or self-illuminating exit signs, or as required by code.
5. Fire horns and exit signs at the core as required by code.
K. ELEVATORS AND FREIGHT ELEVATORS
Elevator report on speed, average wait times and capacity to be provided for
review by Tenant.
1. All passenger elevators installed, upgraded, and operational as designed
(type, number, and design characteristics shall be specified).
2. Freight elevator upgraded and operational as designed.
3. Truck height loading dock facilities is existing and available for tenant
use.
Landlord shall provide in the Base Building twenty-four hour elevator use.
Twenty-four hour access possible with card key access provided.
L. PARKING
1. Surface parking lot, garage and loading dock is existing & provided.
M. SECURITY
1. Electronic pass systems installed and operational per design. Card key
access on main entry doors and elevators only; excluded are any entry
systems downstream of elevators (i.e. to/in Premises). Card key control at
Premises (including Emergency stairwells) possible at Tenant's cost.
6
<PAGE> 58
EXHIBIT E
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
AGREEMENT made this _________________________ day of
_________________________, _________________________ ("Lender"), WRC.Com Tower
LLC, a Washington limited liability company, ("Borrower"), and Amazon.com.,
Inc., a Delaware corporation, ("Tenant").
RECITALS
Lender has made or is about to make a loan to Borrower in the amount of
_________________________ DOLLARS ($ _________________________) to be evidenced
by a deed of trust note in that amount to be secured by, among other things, a
mortgage or deed of trust hereinafter collectively referred to as the "Mortgage"
on Borrower's interest in and to those certain premises (the "Mortgaged
Premises") situated, lying, and being in the City of Seattle, County of King,
State of Washington, more particularly described on Exhibit A hereto together
with all improvements now existing and hereafter constructed thereon.
Tenant is now or is to become the tenant of a portion of the Mortgaged
Premises (the "Demised Premises") under a lease made by Borrower with Tenant
dated July __, 1998 (the "Space Lease"), which Space Lease is more particularly
described on Exhibit B, attached hereto and incorporated herein.
Tenant desires to be assured of continued occupancy of the Demised
Premises under the terms of the Space Lease and subject to the terms of the
Mortgage.
NOW, THEREFORE, Tenant, Lender, and Borrower hereby agree:
1. Tenant agrees that all of Tenant's rights under the Space Lease
shall be fully subject and subordinate to the lien of the Mortgage, as the same
may be extended, renewed, modified, or replaced, and to all of Lender's rights
thereunder, subject to the provisions of this Agreement.
2. Lender agrees with Tenant that so long as conditions do not exist
entitling Borrower to declare the Space Lease at an end under the provisions of
the Space Lease (including the expiration of all periods to cure), the Space
Lease and the estate thereby created shall not be terminated, neither Tenant nor
any subtenant or assigns of Tenant shall be joined by Lender or any holder of
the Mortgage in any foreclosure proceedings. Possession or enjoyment of the
Demised Premises by Tenant, subtenant, or assigns shall not be interfered with
by or in any foreclosure action, sale, or other action or proceeding instituted
under or in connection with the Mortgage, it being the express intention of
Lender and Tenant that Tenant shall not be disturbed in its possession and use
of the Demised Premises under the Space Lease for any reason other than the
termination of the Space Lease in accordance with its terms or the eviction of
Tenant under and in accordance with the terms of the Space Lease.
-1-
<PAGE> 59
3. In the event of foreclosure of the Mortgage, whether by legal
action, pursuant to the power of sale therein contained or otherwise, or
delivery of a deed to the Mortgaged Premises in lieu of foreclosure of the
Mortgage, whereby the purchaser upon foreclosure or a grantee under a deed in
lieu of foreclosure of the Mortgage has notified Tenant that it has succeeded to
the ownership of all interests in the Demised Premises and the rights of the
landlord under the Space Lease, then the Space Lease shall continue in full
force and effect as a direct lease between such purchaser or grantee of the
Demised Premises and Tenant, upon and subject to the terms, covenants, and
conditions of the Space Lease, including the power of such purchaser or grantee
as landlord thereunder to terminate the interests of Tenant under and in
accordance with the terms of the Space Lease. Such purchaser or grantee will not
disturb the possession of Tenant and will be bound by all of the landlord's
obligations under the Space Lease, except such as are then not applicable or
pertinent to the remainder of the term of the Space Lease and further except
that such purchaser or grantee shall not (a) be liable for any previous act or
omission of any prior landlord under the Space Lease (including Lender or any
receiver appointed in any such foreclosure action or proceeding); (b) be subject
to any offsets, defenses, or claims which have accrued to Tenant against said
prior landlord (except that any events entitling Tenant to abatement or
reduction in rent or lease termination under the terms of the Space Lease, with
respect to which events notice shall have been given to Lender as provided
below, shall continue to effect such abatement or reduction or right of
termination if not remedied within the period for cure provided below); (c) be
bound by any modification of the Space Lease, or by any prepayment of more than
one month's rent made subsequent to the date hereof or by any waiver or
forbearance on the part of landlord made subsequent to the date hereof that is
materially adverse to the interest of such purchaser or grantee unless such
modification, prepayment, waiver, or forbearance shall have been previously
approved in writing by Lender or any subsequent holder of the Mortgage or such
purchaser or grantee; (d) be bound for return of any deposit, letter of credit
or other security device unless the same has been specifically transferred to
such purchaser or grantee; (e) be bound by any obligation of the landlord in the
construction of Tenant's improvements at the Demised Premises or the payment of
any allowances in lieu thereof or any warranty of workmanship or materials or
any other personal guaranty of the landlord under the Space Lease (provided
nothing in this subsection (e) shall reduce the general maintenance and repair
obligations of the landlord under the Space Lease); or (f) be liable for the
commencement or completion of any construction or any contribution toward
construction or installation of any improvements upon the Demised Premises
required under the Space Lease, or any expansion or rehabilitation of existing
improvements thereon, or for restoration of improvements thereon, or for
restoration of improvements following any casualty not required to be insured
under the Space Lease or, if insurance required to be carried by the Landlord
under the Space Lease is in fact being carried as therein required, for the
costs of any restoration in excess of the proceeds recovered under any insurance
and any condemnation proceeds (except that this clause shall not affect Tenant's
rights to rental abatements or reduction, or lease termination, as expressly
provided in the Space Lease), provided, however, that notwithstanding the
foregoing, if at any time such purchaser or grantee has succeeded to the
ownership of the interest in the Mortgaged Premises described above and the
rights of landlord under the Space Lease, the Space Lease is still in effect and
there has not occurred a permanent abatement or reduction in rent thereunder,
such purchaser or grantee shall have ten (10) days after the later to occur of
such succession or the giving of notice to such purchaser or grantee of a
condition which gives rise to a right to abate or reduce rent within which to
correct such condition, and if such correction is effected within such time,
Tenant will not assert the same as a cause for abatement or reduction in rent
accruing after such correction is effected. Notwithstanding the provisions of
clauses (e) and (f) of the preceding
-2-
<PAGE> 60
sentence, if such purchaser or grantee succeeds to the ownership of the Demised
Premises and the rights of landlord under the Space Lease prior to the
Commencement Date under the Space Lease, and proceeds with construction of the
improvements as defined in the Space Lease, then Tenant shall have the rights
under the Space Lease for the payment of the Allowance (or unpaid portion
thereof) unless Tenant terminates the Space Lease in accordance with its terms.
4. Tenant consents to the foregoing provisions of Paragraphs 2 and 3
hereof and agrees to be bound thereby. So long as Tenant has quiet enjoyment of
the Demised Premises, Tenant further agrees (a) to attorn to and recognize as
landlord under the Space Lease (i) Lender, when in possession of the Mortgaged
Premises, (ii) a receiver appointed in an action or proceeding to foreclose the
Mortgage, (iii) a purchaser upon foreclosure or a grantee under a deed in lieu
of foreclosure of the Mortgage, or (iv) any subsequent purchaser of the
Mortgaged Premises; (b) upon request, to execute and deliver to said person or
entity any instrument or instruments in recordable form which may be necessary
or appropriate to effect the performance of the agreements herein contained,
provided that such instruments do not create, or risk the creation of increased
risk of liabilities or obligations of Tenant; and (c) to be bound to perform all
of the obligations of the tenant under the Space Lease.
5. Notwithstanding anything in the Space Lease to the contrary, Tenant
hereby agrees that Tenant will notify Lender unless Tenant has received written
notice from Lender that the Mortgage has been reconveyed, in writing of any
default(s) of the landlord under the Space Lease which would entitle Tenant to
cancel the Space Lease or abate the rent payable thereunder, and no notice of
cancellation or abatement shall be effective unless (a) Lender has received the
aforesaid notice at its office address set forth below (or at such other place
in the continental United States hereafter designated to Tenant from time to
time in writing) and (b) Lender has been afforded an opportunity to cure such
default(s) of landlord under the Space Lease within the applicable grace period
provided under the Space Lease (measured from receipt of the aforementioned
written notice) or, if such default(s) cannot reasonably be cured within such
period, to commence to cure such default(s) within such period and diligently
proceed therewith, provided, however, nothing herein shall affect rights of
Tenant to terminate the Space Lease in whole or in part pursuant to the
provisions of Sections 13 or 26 of the Space Lease. Tenant agrees that
performance by Lender or its designee or assignee of any provision of the Space
Lease shall satisfy any conditions of Tenant requiring performance by the
landlord and if there is a default which is not capable of being cured by Lender
and Lender has instituted judicial or nonjudicial proceedings to foreclose the
Mortgage, Tenant agrees to waive such past defaults as to Lender or its
respective nominee, designee, or assignee, provided that Lender or its
respective nominee, designee, or assignee promptly effects a cure when it is
capable of doing so (except that any events entitling Tenant to abatement or
reduction in rent or rights to terminate the Space Lease under the Space Lease
shall continue to effect such abatement, reduction, or termination rights).
6. Tenant acknowledges and recognizes that the Space Lease will be
assigned to Lender as collateral security for any loan made by Lender to
Borrower, which assignment, among other things, will prohibit Borrower from
thereafter modifying, terminating, or accepting surrender of the Space Lease or
reducing, abating, or accepting prepayment of any rent under the Space Lease
more than one calendar month in advance of its due date (without first obtaining
the consent of Lender) and Tenant agrees to be bound by these restrictions.
-3-
<PAGE> 61
7. Nothing contained herein shall obligate Lender to perform the
landlord's obligations under the Space Lease until such time as Lender shall
become the owner of the Mortgaged Premises.
8. This Agreement shall be binding upon the inure to the benefit of the
respective successors and assigns of the parties hereto and cannot be changed or
terminated orally.
9. In the event of foreclosure of the Mortgage, whether by action,
pursuant to the power of sale therein contained or otherwise, or delivery of a
deed to the Mortgaged Premises in lieu of foreclosure of the Mortgage, and the
subsequent transfer of the Mortgaged Premises by the purchaser upon foreclosure
or grantee under a deed in lieu of foreclosure, such transferring purchaser or
grantee shall be automatically relieved of any and all obligations and
liabilities hereunder and under the Space Lease accruing from and after the date
of such transfer, provided the transferee of such transfer assumes such
obligations and liabilities in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LENDER: ____________________________________________
By___________________________________________
Its________________________________________
BORROWER: WRC.COM TOWER LLC, A Washington
limited liability company
By: WRIGHT RUNSTAD ASSOCIATES
LIMITED PARTNERSHIP, a
Washington limited partnership, its
sole member
By: WRIGHT RUNSTAD &
COMPANY, its general
partner
By: ______________________________
______________________________
TENANT: Amazon.com, Inc., a Delaware corporation
By______________________________________
Its___________________________________
-4-
<PAGE> 62
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that
_______________________ is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said
person was authorized to execute the instrument and acknowledged it as the
__________ of Wright Runstad & Company, a Washington corporation, the general
partner of Wright Runstad Associates Limited Partnership, a Washington limited
partnership, the sole member of WRC.COM Tower LLC, a Washington limited
liability company, to be the free and voluntary act of such limited liability
company for the uses and purposes mentioned in the instrument.
Dated this ___ day of _______________, 1988.
_______________________________________
(Signature of Notary)
_______________________________________
(Legibly Print or Stamp Name of Notary)
Notary public in and for the state of
Washington, residing at _______________
My appointment expires ________________
STATE OF DELAWARE )
) ss.
COUNTY OF ______ )
I certify that I know or have satisfactory evidence that _____________ is
the person who appeared before me, and said person acknowledged that said
person signed this instrument, on oath stated that said person was authorized
to execute the instrument and acknowledged it as the ____________ of
Amazon.com, Inc., a Delaware corporation, to be the free and voluntary act of
such corporation for the uses and purposes mentioned in the instrument.
Dated this ____ day of ____________, 1998.
_______________________________________
(Signature of Notary)
_______________________________________
(Legibly Print or Stamp Name of Notary)
Notary public in and for the state of
Delaware, residing at _________________
My appointment expires ________________
-5-
<PAGE> 63
EXHIBIT F
[MAP]
LOCATION OF
TRANSIENT PARKING SPACES
<PAGE> 64
EXHIBIT G
<TABLE>
<CAPTION>
Estimated Costs 1999
-------------------------------
$/SF Total
---------- ----------
<S> <C> <C>
Energy $1.36 $ 390,641
Cleaning $1.21 $ 348,768
Electrical $0.0575 $ 16,514
HVAC $0.1825 $ 52,410
Plumbing $0.0335 $ 9,634
Other Utilities $0.2330 $ 66,924
Elevators $0.1602 $ 46,012
General Building $1.3371 $ 348,062
Administration $0.4732 $ 135,919
Leasing $0 $ 0
Common Area Alterations $0.1109 $ 31,850
Other Repairs $0.0409 $ 11,740
Insurance $0.1300 $ 37,340
Real Estate Taxes $1.85 $ 531,382
TOTAL VARIABLE & FIXED EXPENSES $7.18 $2,063,196
</TABLE>
<PAGE> 65
EXHIBIT H
List of Restriction Documents
1. Interlocal Cooperation Agreement between Pacific Hospital Preservation
and Development Authority and King County.
2. Interlocal Cooperation Agreement between the City of Seattle and King
County.
3. Quit Claim Deed recorded under King County Recording No. 8112010772.
4. Modification and Partial Abrogation of Conditions Subsequent and
Partial Release of Mortgage.
5. Insurance Allocation Agreement.
6. Reciprocal Easement Agreement.
7. Tower and Adjacent Property Lease Agreement.
8. North Lot Lease Agreement.
9. Each of the exceptions to title set forth in the Commitment for Title
Insurance issued by First American Title Insurance Company under Order
No. 371727-5, effective February 9, 1998 at 7:30 a.m. and all
supplements thereto as of the date of the Lease.
H-1
<PAGE> 66
EXHIBIT I
ARBITRATION
Any dispute, controversy or claim arising out of Section 10(h) of this Lease
shall be settled by expedited mandatory arbitration as set forth in this
Exhibit I.
1. NOTICE OF DEMAND:
Either party may demand arbitration by notifying the other party in
writing in accordance with the notice provisions of the Lease. The notice shall
describe the reasons for such demand, the amount involved, if any, and the
particular remedy sought.
2. RESPONSE:
The party that has not demanded arbitration shall respond to the notice
of demand within ten (10) calendar days of receipt of such notice by delivering
a written response in accordance with the notice provisions of the Lease. The
response shall also describe counterclaims, if any, the amount involved, and the
particular remedy sought.
3. SELECTION OF ARBITRATORS: If the amount in dispute is $100,000 or less,
the dispute shall be resolved by a single arbitrator. If the parties cannot
agree on a single arbitrator within 30 days after the arbitration demand, then
either party may request the appointment of such arbitrator by the Seattle
office of the American Arbitration Association.
If the amount in dispute exceeds $100,000, the dispute shall be
resolved by three arbitrators. If the parties cannot agree on the arbitrators
within 30 days of the arbitration demand, either party may request the
appointment of the arbitrators by the Seattle office of the American Arbitration
Association.
Each arbitrator (however selected or appointed) shall be a natural
person not employed by either party or any parent or affiliated partnership,
corporation or enterprise thereof with at least 10 years real estate law
experience or 10 years commercial real estate management experience.
4. ARBITRATION HEARING; DISCOVERY; VENUE:
The arbitration hearing shall commence within thirty (30) calendar days
of appointment of the sole or third arbitrator as described in Section 3. The
hearing shall in no event last longer than two (2) calendar days. There shall be
no discovery or dispositive motion practice (such as motions for summary
judgment or to dismiss or the like) except as may be permitted by the
arbitrator(s); and any such discovery or dispositive motion practice permitted
by the arbitrator(s) shall not in any way conflict with the time limits
contained herein. The arbitrator(s) shall not be bound by any rules of civil
procedure or evidence, but rather shall consider such writings and oral
presentations as reasonable business persons would use in the conduct of their
day to day affairs, and may require the parties to submit some or all of their
case by written declaration or such other manner of presentation as the
arbitrator(s) may determine to be appropriate. It is the
1
<PAGE> 67
intention of the parties to limit live testimony and cross examination to the
extent absolutely necessary to insure a fair hearing to the parties on
significant and material issues. Venue of any arbitration hearing pursuant to
this Exhibit I shall be in Seattle, Washington.
5. DECISION:
The arbitrator(s)' decision shall be made in no event later than ten
(10) calendar days after the commencement of the arbitration hearing described
in Section 4. The award shall be final and judgment may be entered in any court
having jurisdiction thereof. The arbitrator(s) may award specific performance if
appropriate to implement the decision of the arbitrator(s). The arbitrator(s)
may also require remedial measures as part of any award. The arbitrator(s) in
their discretion may award attorneys' fees and costs to the more prevailing
party including the fees of the arbitrator(s). Otherwise, the fees of a single
or third arbitrator shall be split equally between the parties, and the fees of
an arbitrator appointed by a party shall be paid by such party. If the dispute
includes three arbitrators and the arbitrators do not reach a unanimous
decision, the decision of a majority of the arbitrators shall prevail.
2
<PAGE> 68
EXHIBIT J
EXAMPLE OF CALCULATION TO DETERMINE
EARLY REPLACEMENT COSTS*
HOURS OF OPERATION - NORMAL OCCUPANCY
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
NORMAL OCCUPANCY
-----------------------------------------------------------------------------------------------------------
Equipment Monday Tuesday Wednesday Thursday Friday Saturday Sunday
------------------------------------------------------------------------------------- Total Hrs Total Hrs
Day Night Day Night Day Night Day Night Day Night Day Night Day Night per Week per Year
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Chillers 11 1 11 1 11 1 11 1 11 1 5 2 0 3 70 3640
Pumps 11 1 11 1 11 1 11 1 11 1 5 2 0 3 70 3640
Air Handling Units 11 3 11 3 11 3 11 3 11 3 5 5 0 6 86 4472
VAV Boxes 11 3 11 3 11 3 11 3 11 3 5 5 0 6 86 4472
Cooling Tower 11 2 11 2 11 2 11 2 11 2 5 4 0 3 77 4004
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
HOURS OF OPERATION - 24 HOUR NORMAL OCCUPANCY
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
24 HOUR OCCUPANCY
-----------------------------------------------------------------------------------------------------------------
Total
Equipment Monday Tuesday Wednesday Thursday Friday Saturday Sunday Total Total Additional
------------------------------------------------------------------------------------- Hrs per Hrs per Hrs per
Day Night Day Night Day Night Day Night Day Night Day Night Day Night Week Year Year
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Chillers 12 12 12 12 12 12 12 12 12 12 12 12 12 12 168 8736 5096
Pumps 12 12 12 12 12 12 12 12 12 12 12 12 12 12 168 8736 5096
Air Handling Units 12 12 12 12 12 12 12 12 12 12 12 12 12 12 168 8736 4264
VAV Boxes 12 12 12 12 12 12 12 12 12 12 12 12 12 12 168 8736 4264
Cooling Tower 12 12 12 12 12 12 12 12 12 12 12 12 12 12 168 8736 4732
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* This Exhibit is an illustration only of a potential method to calculate
Landlord's Early Replacement Cost. Any dispute as to the manner to calculate
Landlord's Early Replacement Cost shall be subject to arbitration as provided
in the Lease.
<PAGE> 69
.COM TOWER
ACCELERATION
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
NORMAL OPERATION 24 HOUR OPERATION ACCELERATION
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Anticipated Hours of Anticipated Hours of Anticipated Years of Months of Hours of
Equipment Life in Years Operation/Year Life in Hours Operation/Year Life in Years Acceleration Acceleration Acceleration
(24 Hour Use)
- ------------------------------------------------------------------------------------------------------------------------------------
Chillers 25 3640 91000 8736 10.42 14.58 175.00 30,333
Pumps 25 3640 91000 8736 10.42 14.58 175.00 30,333
Air Handling Units 25 4472 111800 8736 12.80 12.20 146.43 25,381
VAV Boxes 15 4472 67080 8736 7.68 7.32 87.86 15,229
Cooling Tower 25 4004 100100 8736 11.46 13.54 162.50 28,167
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
REPLACEMENT COSTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Todays Normal Operation Months of Quantity Replacement Hours of Replacement
Equipment Cost Useful Life Acceleration Cost Acceleration Cost per Hour
(months) for Acceleration for Acceleration
- ------------------------------------------------------------------------------------------------------------------------------------
Chiller (450T) $190,000 300 175.00 1 $110,833 30,333 $3.65
Chiller (250T) $120,000 300 175.00 1 $70,000 30,333 $2.31
Pumps $19,000 300 175.00 9 $99,750 30,333 $3.29
Air Handling Units $54,000 300 146.43 32 $843,429 25,381 $33.23
VAV Boxes $4,000 180 87.86 250 $488,095 15,229 $32.05
Cooling Tower $120,000 300 162.50 1 $65,000 28,167 $2.31
- ------------------------------------------------------------------------------------------------------------------------------------
Total per Hour Cost of Acceleration $76.84
Total Replacement Costs for Acceleration (unescalated) $1,677,107
</TABLE>
<PAGE> 70
EXHIBIT K
Tenant shall be entitled to allow its employees to bring pets to the
Premises, and Landlord consents to the same, subject to the following terms and
conditions:
1. Tenant shall first establish a policy and regulations governing the
types of pets, the number of pets within types (e.g. number of fish, number of
dogs, etc.); methods of handling, including but not limited to a "code of pet
conduct," supervision/leash standards for where the pets can be "walked", waste
handling, and enforcement provisions regarding the above. The purpose of the
policy and regulations shall be to insure (i) that pets do not cause damage to
the Premises, the Building, the Property or other Common Areas; (ii) that pets
do not disturb any other tenant or user of the Building or the Property; and
(iii) that pets do not leave uncollected waste or increase Common Area or
exterior maintenance obligations of Landlord hereunder. Tenant's policy and
regulations shall be subject to Landlord's prior written approval, such approval
not to be unreasonably withheld. Landlord shall be entitled to require
reexamination and revisions to the policy and regulations at any time that
Landlord determines in its reasonable discretion that the purposes of the policy
and regulations are not being adequately achieved.
2. Landlord shall be entitled to suspend or terminate the right of
Tenant to allow employees to bring pets to the Premises in the event of
continuing and material violations to the policy and regulations referenced
above or the failure of Tenant to enforce such policy and regulations in a
timely and effective manner.
3. All pets must be kept within the Premises, and may not be kept in
Common Areas, lobbies or in exterior areas of the Property. Pets may be walked
only in areas to the north of the Building, and no pets shall be permitted in
areas south of the Building or in the "Commons" area.
4. All pets must enter and exit the Premises through the secondary
lobby in the basement of the Building.
5. Tenant shall be liable for all damages caused by the presence or
activities of pets within the Premises, in the Building, or on the Property,
including any damage to elevators, lobby areas, doors, carpeting, windows and
similar items.
6. Tenant shall indemnify, defend and hold Landlord harmless from and
against all claims, damages or injuries caused by any pets, including injuries
to persons or property (i.e. dog bites, diseases, etc.).
7. Tenant shall reimburse Landlord for all additional costs or expenses
incurred by Landlord by virtue of the presence and activities of pets at the
Property and in the Premises, including excess janitorial expenses in common and
exterior areas, excess landscaping costs, and similar costs. Such excess costs
shall be paid in addition to Tenant's share of Operating Costs, and shall be
paid promptly following Tenant's receipt of an invoice therefor.
K-1
<PAGE> 71
8. Landlord may terminate the right of Tenant to allow employees to
bring pets to the Premises if, despite the implementation of the policy and
regulations referenced above and compliance with the other provisions of this
Exhibit K, Landlord reasonably determines that the presence of such pets (i)
materially adversely affects the use and enjoyment of the remainder of the
Building by users other than Tenant, or (ii) materially adversely affects the
appearance, operation and maintenance of the Premises as a first class office or
medical office building.
Any dispute between Landlord and Tenant regarding the matters set forth
in this Exhibit K shall be subject to arbitration pursuant to the provisions of
Exhibit I of the Lease. At the request of either party, any dispute shall first
be mediated using JAMS or similar mediation services mutually approved by
Landlord and Tenant.
K-2
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
AMAZON.COM, INC. FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1998 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 14,856
<SECURITIES> 322,404
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 19,772
<CURRENT-ASSETS> 374,657
<PP&E> 34,223
<DEPRECIATION> 10,402
<TOTAL-ASSETS> 619,714
<CURRENT-LIABILITIES> 99,455
<BONDS> 340,495
0
0
<COMMON> 527
<OTHER-SE> 179,237
<TOTAL-LIABILITY-AND-EQUITY> 619,714
<SALES> 357,103
<TOTAL-REVENUES> 357,103
<CGS> 276,679
<TOTAL-COSTS> 276,679
<OTHER-EXPENSES> 150,315
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 18,017
<INCOME-PRETAX> (78,119)
<INCOME-TAX> 0
<INCOME-CONTINUING> (78,119)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (78,119)
<EPS-PRIMARY> (1.60)
<EPS-DILUTED> (1.60)
</TABLE>
