<PAGE>
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] Quarterly report pursuant section 13 or 15(d) of the Securities Exchange
Act of 1934 for the quarterly period ended September 30, 1999
[ ] Transition report pursuant section 13 or 15(d) of the Securities Exchange
Act of 1934 for the transition period from ____________ to _______________
INTERACTIVE OBJECTS, INC.
(Exact name of small business issuer as specified in its charter)
Commission file number: 0-25373
WASHINGTON 87-0434226
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
12600 SE 38th Street, Suite 150
Bellevue, WA 98006
(Address of principal executive offices)
(425) 653-5505
(Issuer's telephone number)
217 Pine Street, Suite 800
Seattle, WA 98101
(Former address of principal executive offices)
___________________
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 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 [ ]
Securities registered under Section 12(b) of the Exchange Act: None
Securities registered under Section 12(g) of the Exchange Act: Common Stock,
$.01 par value
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PRECEDING FIVE YEARS:
Not applicable
APPLICABLE ONLY TO CORPORATE REGISTRANTS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: As of November 11, 1999, the
Registrant had 14,616,952 shares of Common Stock outstanding.
TRANSITIONAL SMALL BUSINESS DISCLOSURE FORMAT (check one): Yes [ ] No [X]
1
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INTERACTIVE OBJECTS, INC.
FORM 10-QSB
FOR THE QUARTER ENDED SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
Index Page Number
PART I FINANCIAL INFORMATION
<S> <C> <C>
Item 1. Consolidated Balance Sheets at September 30, 1999 and
December 31, 1998 4
Consolidated Statements of Operations for the three months
and nine months ended September 30, 1999 and 1998 5
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1999 and 1998 6
Notes to Unaudited Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 8
PART II OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 2. Changes in Securities 13
Item 3. Defaults Upon Senior Securities 13
Item 4. Submission of Matters to a Vote of Security Holders 13
Item 5. Other Information 13
Item 6. Exhibits and Reports on Form 8-K 13
SIGNATURE 14
</TABLE>
2
<PAGE>
PART 1 - FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets at September 30, 1999 and December 31, 1998
Consolidated Statements of Operations for the three months and nine months ended
September 30, 1999 and 1998
Consolidated Statements of Cash Flows for the nine months ended September 30,
1999 and 1998
Notes to Unaudited Consolidated Financial Statements
3
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INTERACTIVE OBJECTS, INC.
CONSOLIDATED BALANCE SHEETS
September 30, 1999 and December 31, 1998
<TABLE>
<CAPTION>
September 30, 1999 (1) December 31, 1998 (2)
ASSETS
<S> <C> <C>
Current Assets
Cash $ 1,977,434 $ 3,346,535
Certificate of deposit 109,543 106,145
Accounts receivable 232,698 14,000
Prepaid expenses 109,862 154,308
---------------- ---------------
Total current assets 2,429,537 3,620,988
Furniture and Equipment, at cost,
less accumulated depreciation of $172,136 and $56,495 393,016 340,334
Other Assets
Deposits 6,935 6,934
---------------- ---------------
$ 2,829,488 $ 3,968,256
================ ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 213,803 $ 104,834
Accrued expenses 145,360 374,610
Unearned revenue 5,184
Current portion long-term debt 20,500 97,017
---------------- ---------------
Total current liabilities 384,847 576,461
Long-term debt, less current portion 61,608 17,757
Stockholders' Equity
Common stock 146,169 155,669
Additional paid-in capital 8,537,409 9,002,909
Retained deficit (6,300,545) (5,784,540)
---------------- ---------------
2,383,033 3,374,038
---------------- ---------------
$ 2,829,488 $ 3,968,256
================ ===============
</TABLE>
(1) Unaudited
(2) Audited
4
<PAGE>
INTERACTIVE OBJECTS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three Months and Nine Months Ended September 30, 1999 and 1998
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, 1999 (1) September 30, 1998 (1) September 30, 1999 (1) September 30, 1998 (1)
<S> <C> <C> <C> <C>
Revenues
Service revenue $ 883,175 $ 899,860 $ 2,669,101 $ 2,716,453
Expenses
Labor and benefits 583,789 1,198,679 2,268,530 3,145,567
Selling, general and
administrative 246,218 1,465,641 983,944 2,695,377
--------------- -------------- --------------- -------------
830,007 2,664,320 3,252,474 5,840,944
--------------- -------------- --------------- -------------
Income (loss) from
operations 53,168 (1,764,460) (583,373) (3,124,491)
Interest income 21,463 61,446 67,368 83,513
---------------- -------------- --------------- -------------
Net income (loss) $ 74,631 $ (1,703,014) $ (516,005) $ (3,040,978)
================ ============== =============== =============
Basic earnings (loss) per
share of common stock $ 0.01 $ (0.12) $ (0.03) $ (0.22)
================ ============== =============== =============
Diluted earnings (loss) per
share of common stock $ 0.01 $ (0.12) $ (0.03) $ (0.22)
================ ============== =============== =============
Weighted average number of common
shares outstanding - basic $ 14,616,952 $ 14,611,101 $ 14,881,421 $ 13,741,266
================ =============== =============== =============
Weighted average number of common
shares outstanding - diluted $ 15,210,102 $ 14,611,101 $ 14,881,421 $ 13,741,266
================ =============== =============== =============
</TABLE>
(1) Unaudited
5
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INTERACTIVE OBJECTS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
For the Nine Months Ended September 30, 1999 and 1998
<TABLE>
<CAPTION>
Sept. 30, 1999 (1) Sept. 30, 1998 (1)
<S> <C> <C>
Cash Flows From Operating Activities
Net (loss) $ (516,005) $ (3,040,978)
Adjustment to reconcile net (loss) to net cash
flows from operating activities
Depreciation 74,683 39,762
Issuance of stock and stock purchase warrants
In exchange for services 1,084,840
Changes in Operating Assets and Liabilities
Accounts receivable (218,698) (166,853)
Prepaid expenses and other 41,047 (148,483)
Accounts payable 108,969 205,419
Accrued expenses (229,250) 75,042
Unearned revenue 5,184
------------- ------------
Cash Flows from Operating Activities (734,070) (1,951,251)
Cash Flows From Investing Activities
Purchase of equipment (127,365) (196,272)
Capitalized software costs (35,000)
------------- ------------
Cash Flow from Investing Activities (127,365) (231,272)
Cash Flows From Financing Activities
Issuance of stock 6,136,040
Redemption of stock (475,000)
Distributions (46,028)
Payments on notes payable (32,666) (40,649)
------------- ------------
Cash Flows from Financing Activities (507,666) 6,049,363
------------- ------------
Net increase (decrease) in cash (1,369,101) 3,866,840
Cash, beginning of period 3,346,535 214,967
------------- ------------
Cash, end of period $ 1,977,434 $ 4,081,807
============= ============
</TABLE>
(1) Unaudited
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INTERACTIVE OBJECTS, INC.
Notes to Unaudited Consolidated Financial Statements
Note 1. Basis of Presentation
The accompanying unaudited consolidated financial statements have been prepared
in accordance with the instructions to Form 10-QSB and therefore do not include
all disclosures necessary for a fair presentation of financial position, results
of operations, and cash flows in conformity with generally accepted accounting
principles. The unaudited consolidated financial statements include the
accounts of Interactive Objects, Inc. ("Interactive Objects") and its wholly-
owned subsidiary Avatar Interactive, Inc. ("Avatar"). Effective March 31, 1999,
Interactive Objects acquired all of the equity interests of Avatar in exchange
for 858,025 shares of Interactive Objects common stock. These consolidated
financial statements have been prepared under the pooling of interests method of
accounting and reflect the combined financial position and operating results of
Interactive Objects and Avatar as of and for the three month and nine month
periods ended September 30, 1999 and 1998. The operating results for interim
periods are unaudited and are not necessarily an indication of the results to be
expected for the full fiscal year. In the opinion of management, the results of
operations as reported for the interim period reflect all adjustments which are
necessary for a fair presentation of operating results.
Note 2. Per Share Information
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share" ("FAS 128") which
is effective for interim and annual financial statements for periods ending
after December 15, 1997. Under FAS 128, basic and diluted earnings per share
are to be presented. Basic earnings per share is computed by dividing income
available to common shareholders by the weighted average number of common shares
outstanding in the period. Diluted earnings per share takes into consideration
common shares outstanding (computed under basic earnings per share) and
potentially dilutive common shares. Employee stock options outstanding have
been reflected as exercised for the purposes of computing diluted earnings per
share at September 30, 1999, and this computation resulted in 593,150 additional
shares of common stock outstanding. Employee stock options outstanding at
September 30, 1998, have not been reflected as exercised since the exercise of
such options would be antidilutive. Also, stock purchase warrants outstanding
(at September 30, 1999 or 1998) have not been reflected as exercised for the
purposes of computing diluted earnings or loss per share since the exercise of
such warrants would be antidilutive.
7
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operation
INTERACTIVE OBJECTS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATION
Statement of Forward-Looking Information
Statements contained herein that are not based on historical fact,
including without limitation statements containing the words "believes," "may,"
"will," "estimate," "continue," "anticipates," "intends," "expects" and words of
similar import, constitute "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors that
may cause the actual results, events or developments to be materially different
from any future results, events or developments expressed or implied by such
forward-looking statements. Such factors include, among others, the following:
general economic and business conditions, both nationally and in the regions in
which the Company operates; technology changes; competition; changes in business
strategy or development plans; the ability to attract and retain qualified
personnel; liability and other claims asserted against the Company; and other
factors referenced in the Company's filings with the Securities and Exchange
Commission. Given these uncertainties, readers are cautioned not to place undue
reliance on such forward-looking statements. The Company disclaims any
obligation to update any such factors or to publicly announce the result of any
revisions to any of the forward-looking statements contained herein to reflect
future results, events or developments.
Overview
Former Microsoft employees founded Interactive Objects in 1995 to develop
object software for commercial Internet and intranet applications. Today, the
Company continues to evolve and expand its offerings by leveraging revenue
generating intellectual property and technical talent. Through its consulting
subsidiary, Avatar Interactive, the Company offers a full range of development
services including custom software solutions, Internet development, software
training, and testing. The Company's Information Appliances division continues
to develop and mature its research and development efforts for embedded systems.
The Company was incorporated in the State of Washington in October 1995 and
operated under the name Neoteric Media, Inc., d/b/a Interactive Objects, until
August 1997. In August 1997, pursuant to the terms of an acquisition agreement
with Asia Pacific Chemical Engineering Corp., a publicly-held Utah corporation
with nominal assets and liabilities ("APEC"), Neoteric Media entered into a
business combination with APEC. In the Neoteric Acquisition, the shareholders of
Neoteric Media exchanged their stock for a majority of the then-outstanding
common stock of APEC and Neoteric Media became a wholly-owned subsidiary of APEC
(which changed its name to Interactive Objects). For accounting purposes, the
Neoteric Acquisition was accounted for as a reverse purchase, with Interactive
Objects as the continuing
8
<PAGE>
entity. The Company's audited financial statements include, since August 1997,
the results of APEC operations, which were insignificant.
From June 30, 1999 to September 30, 1999, the Company's revenues were
derived from its Information Appliance division and its software consulting
division, Avatar Interactive. To date, the Company has provided consulting
services to predominately Fortune 1000 companies, including SAFECO, Microsoft,
Airborne Express, Paccar, Pinnacle, CourtLink, Eddie Bauer and Port Townsend
Paper. The Company's Information Appliances division focuses on emerging
technology and strategic partnering with hardware, software and platform
providers to deliver to consumers the tools they want to work, play, and
function more efficiently. The development of the Microsoft Mobile Audio Player,
the first digital audio player software for the Microsoft Windows CE operating
system, is a direct product of this division's talent and focus. In addition,
the Company completed an ongoing contract with Microsoft for the continuing
development of streaming technology for the Windows CE operating system. With
support for Windows Media Technologies, the Windows Media Audio (WMA) codec, as
well as MP3, the Information Appliances division is positioned on the cutting
edge of digital audio software technology. The Company anticipates that it will
devote further resources to product development for the Information Appliances
division in the remainder of fiscal 1999. All costs incurred in the research and
development of products and enhancements to existing products have been expensed
as incurred.
In the first quarter of 1998, the Company released two software component
products and acquired a Novell-based software component product. Subsequent to
such acquisition, the Company decided to focus exclusively on Microsoft-based
software component products. The Company also released a suite of seven
components in October 1998. Until recently, the Company has marketed its
products solely through the Internet. As a result of low product sales, the
Company is focusing more attention in 1999 on the expansion of its Information
Appliances division's development and licensing of its intellectual property,
building strategic relationships, and enhancing its software consulting group,
Avatar Interactive.
Effective October 1998, the Company announced a corporate restructuring
plan. As part of this plan, the Company reduced its employee base from 23 to 13
employees, most of whom were first-level supervisors and administrative staff.
In addition, the Company promoted Steve Wollach, the Company's Chief Financial
Officer and Director, to serve as the Company's President, replacing Matthew
Schiltz. Mr. Schlitz was a consultant hired by the Company in October 1998 to
serve as the interim Chief Executive Officer in connection with the resignation
of Ryan Smith, the former Chief Executive Officer of the Company. Mr. Schiltz
served as an advisor to the Company and its Board of Directors through June
1999. In connection with the restructuring plan, the Company included a
provision for up to $310,000 for severance and settlement payments in connection
with the resignations of Ryan Smith and John Guarino from their positions as
officers and directors of the Company. In the first quarter of 1999, the Company
settled all disputes with Messrs. Smith and Guarino. Also in connection with the
restructuring plan, the Company repriced all outstanding stock options held by
current Company employees and directors to $1.406 per share, the closing trading
price of the Common Stock on the OTC Bulletin Board on November 4, 1998.
9
<PAGE>
Effective March 31, 1999, the Company acquired Avatar Interactive, Inc., a
Washington corporation ("Avatar"). The acquisition of Avatar was effected by
means of a forward merger of a newly formed Washington corporation and wholly-
owned subsidiary of the Company with and into Avatar. Avatar became a wholly-
owned subsidiary of the Company. The merger was accounted for as a pooling-of-
interests.
Results of Operation--Three Month and Nine Month Periods Ended September 30,
1999
Revenues. Revenues for the three-month periods ended September 30, 1998
and 1999 decreased by 1.8% from $899,860 to $883,175, respectively. Revenues for
the nine-month periods ended September 30, 1998 and 1999 decreased by 1.7% from
$2,716,453 to $2,669,101, respectively. During the three-month and nine-month
periods ended September 30, 1999, the Company's revenue was generated by its
Information Appliances division and its consulting service group, Avatar
Interactive. The decrease in gross revenue during the three-month and nine-month
periods is attributable primarily to a decrease in consulting services.
Labor and Benefits Expenses. Labor and benefits includes all internal
labor costs including salaries, taxes and benefits and other direct costs
related to project performance, such as project specific independent contractor
fees, labor costs, supplies and specific project related expenditures. The
Company's labor and benefits expenses for the three-month periods ended
September 30, 1998 and 1999 decreased by 51.3% from $1,198,679 to $583,789,
respectively. During the nine-month periods ended September 30, 1998 and 1999,
the labor and benefits expenses decreased by 27.9% from $3,145,567 to
$2,268,530, respectively. The decrease in labor and benefits expenses from the
third quarter and first nine months of 1999 compared to the same periods in 1998
was directly attributable to the decrease in consulting services and contract
labor for those services.
At September 30, 1999, the Company had twelve employees in software
consulting services and product development, three employees in sales and
marketing, and four employees in general and administrative. In addition, the
Company hires independent contractors to service project demand for the
Company's consulting services on a project by project basis, and expects to
continue to staff projects with both Company employees and independent
contractors. The Company expects that it will hire additional staff if and as
needed to meet demand from current clients and prospective clients whose
projects are anticipated to commence within ninety days after hiring.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses for the three-month periods ended September 30, 1998 and
1999 decreased by 83.2% from $1,465,641 to $246,218, respectively. During the
nine-month periods ended September 30, 1998 and 1999, the selling, general and
administrative expenses decreased by 63.5% from $2,695,377 to $983,944,
respectively. In each period, these expenses consisted primarily of employee
recruiting, travel, professional fees, occupancy costs, telephone and related
Internet connectivity fees, computer network costs, office expenses and
supplies, marketing, advertising and new business development costs. Overall,
selling, general and administrative expenses as a percentage of gross revenue
were 27.9% for the three-month period ended September 30, 1999 as compared to
162.9% for the same period in 1998. Selling, general and administrative expenses
as a percentage of gross revenue were 36.9% for the nine-month period ended
September 30,
10
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1999 as compared to 99.2% for the same period in 1998. Selling, general and
administrative expenses decreased due to decreased staffing, investment in
infrastructure and associated expenses. The Company believes that its selling,
general and administrative expenses will increase in dollar amount for the
remainder of fiscal 1999 as a result of an anticipated expansion of the
Company's administrative staff required to support its growing operations and as
a result of an increase in expenses associated with being an Exchange Act
reporting company.
Interest Income. Interest income for the three-month periods ended
September 30, 1998 and 1999 decreased by 65.1% from $61,446 to $21,463,
respectively. This decrease was primarily due to lower available cash balances
due to the use of funds for working capital purposes. Interest income for the
nine-month periods ended September 30, 1998 and 1999 decreased by 19.3% from
$83,513 to $67,368, respectively. This decrease was primarily due to lower
available balances from the proceeds from the Company's financing in May 1998.
Net Loss/Income. The Company recognized net income for the three-month
period ended September 30, 1999 of $74,631 compared to a net loss of $1,703,014
for the same period in 1998. The Company recognized a net loss of $516,005 for
the nine-month period ended September 30, 1999 compared to a net loss of
$3,040,978 for the same period in 1998. Net income as a percentage of gross
revenue was 8.5% for the three-month period ended September 30, 1999 as compared
to a net loss as a percentage of revenue of 189.3% for the same period in 1998.
Net loss as a percentage of gross revenue was 19.3% for the nine-month period
ended September 30, 1999 as compared with a net loss as a percentage of gross
revenue of 111.9% for the same period in 1998. The change for both comparable
periods is due primarily to decreased labor and benefits costs and general and
administrative costs.
Liquidity and Capital Resources
At September 30, 1999, the Company had working capital of $2,044,690
compared with working capital of $3,044,527 at December 31, 1998. At September
30, 1999, the Company had cash and cash equivalents of $2,429,537.
During the first nine months of 1999, total cash used in operating
activities was $734,070, which was principally due to the Company's net loss for
the period partially offset by depreciation and accounts payable. During the
first nine months of 1998, total cash used in operating activities was
$1,951,251, which was primarily due to the Company's net loss for the period
partially offset by the issuance of stock and stock purchase warrants in
exchange for services. During the first nine months of 1999, investing
activities used net cash of $127,365 for purchases of equipment. During the
first nine months of 1998, investing activities used net cash of $231,272 for
purchases of equipment and capitalization of software costs. During the first
nine months of 1999, total cash used in financing activities was $507,666 which
represents redemption of stock and payments on notes payable. During the first
nine months of 1998, financing activities provided cash of $6,049,363 primarily
from the issuance of common stock offset by distributions and payments on notes
payable.
Based on the Company's current proposed plans and assumptions relating to
product releases and sales, the Company anticipates that it will not require
additional capital financing
11
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through the second quarter of 2000. If the Company's plans change or its
assumptions prove to be inaccurate, the Company may be required to seek
additional equity and/or debt financing sooner than currently anticipated. The
Company has no current arrangements related to additional financing. There can
be no assurance that any additional financing will be available to the Company
when needed, on commercially reasonable terms, or at all.
Certain Accounting Pronouncements
Statement of Financial Standards No. 133 ("SFAS 133"), "Accounting for
Derivative Instruments and Hedging Activities" established accounting and
reporting standards for derivative instruments and for hedging activities. SFAS
133 has no impact on the Company's financial statements because the Company does
not currently engage in any derivatives or hedging activities.
Statement of Financial Standards No. 134, "Accounting for Mortgage-Backed
Securities Retained after the Securitization of Mortgage Loans Held for Sale by
a Mortgage Banking Enterprise" does not apply to the Company.
Year 2000 Compliance
Many companies are currently expending significant resources in order to
address the "Year 2000" issue. Expenditures to address the Year 2000 issue
often involve the modification of legacy and other existing software systems
rather than the development of new systems. Because of the size of such
expenditures, companies may defer or cancel other new software development
projects for which such companies might otherwise have purchased products from
the Company or engaged the Company for consulting. Any reductions in revenues to
the Company resulting from other companies' focus on the Year 2000 issue could
have a materially adverse effect on the Company's business, results of
operations, and financial condition.
The Company has commenced a review of its internal information technology
("IT") and non-IT systems. The objective of the review is to address necessary
code changes, testing and implementation with the objective of taking corrective
action based on the results of such review. The Company could be materially and
adversely affected by costs or complications relating to code changes, testing
and implementation for its own systems or similar issues faced by its
distributors, suppliers, customers, vendors and the financial service
organizations with which the Company interacts. At this time, the Company does
not expect the costs related to achieving Year 2000 compliance will be material.
The Year 2000 issue could affect the products that the Company sells. The
Company has reviewed its current products and believes that its products are
Year 2000 compliant and that the Year 2000 issue will not materially impact the
Company. However, to the extent that the Company's products prove to be non-
compliant or in the event of any dispute with any customer regarding whether the
Company's products are compliant, the Company's business, results of operations
and financial condition could be materially and adversely affected.
12
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The forward looking statements referenced above are subject to a number of
risks and uncertainties, including the abilities of customers, vendors and other
third parties to solve timely their Year 2000 issues, the accuracy of Year 2000
testing methods, and that remediation of Year 2000 issues will be correctly
implemented. The Company does not have a contingency plan to address unexpected
Year 2000 issues.
PART II--OTHER INFORMATION
Item 1. Legal Proceedings
The Company has been served with a complaint filed by Jay Paulson in King
County Superior Court in the State of Washington on November 18, 1998 (case no.
98-2-27751-1SEA) for declaratory and injunctive relief and unspecified damages
in connection with a requested transfer of restricted securities held by Mr.
Paulson. On November 9, 1999, Mr. Paulson filed a motion for voluntary
dismissal of this lawsuit.
Item 2. Changes in Securities and Use of Proceeds
None.
Item 3. Defaults upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information.
None.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -------------------------------------------------------------------
<S> <C>
10.2 Lease between Interactive Objects, Inc. and Sterling Realty
Organization Co., effective November 1, 1999.
27.1 Financial Data Schedule.
</TABLE>
(b) Reports on Form 8-K.
None.
13
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SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
INTERACTIVE OBJECTS, INC.
Dated: November 11, 1999 By: /s/ Steven G. Wollach
-----------------------------------
Steven G. Wollach
President, Chief Executive Officer,
Chief Financial Officer and Treasurer
(Principal Executive, Financial
and Accounting Officer)
14
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EXHIBIT 10.2
LEASE AGREEMENT
Dated October 13, 1999
between
STERLING REALTY ORGANIZATION CO.
as "Landlord"
and.
INTERACTIVE OBJECTS, INC.
as "Tenant"
in
12600 BUILDING
i
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STANDARD TERMS AND CONDITIONS
LEASE PROVISIONS
<TABLE>
<CAPTION>
<C> <S> <C>
1. Lease Provisions and Exhibits......................... 1
GENERAL TERMS AND CONDITIONS
2. Premises.............................................. 2
3. Term.................................................. 2
4. Rent.................................................. 2
5. Notices............................................... 2
6. Uses.................................................. 3
7. Services and Utilities................................ 3
8. Costs of Services and Utilities....................... 4
9. Property Taxes........................................ 6
10. Taxes on Rents and Personal Property.................. 7
11. Acceptance of Premises................................ 7
12. Improvements.......................................... 7
13. Alterations and Care of Premises...................... 7
14. Liens and Insolvency.................................. 9
15. Access................................................ 9
16. Damage or Destruction................................. 9
17. Indemnification, Insurance and Waiver of Subrogation.. 10
18. Assignment and Subletting............................. 12
19. Holdover.............................................. 12
20. Surrender of Premises................................. 13
21. Removal of Property................................... 13
22. Defaults.............................................. 13
23. Right to Perform...................................... 14
24. Nonwaiver............................................. 14
25. Costs and Attorneys' Fees............................. 14
26. Priority.............................................. 14
27. Nondisturbance........................................ 15
28. Estoppel Certificates................................. 15
29. Transfer of Landlord's Interest....................... 16
30. Condemnation.......................................... 16
31. Advertising........................................... 16
32. Parking............................................... 16
33. Execution of Lease by Landlord........................ 17
34. Landlord's Liability.................................. 17
35. Broker................................................ 17
36. Corporate Authority................................... 17
37. Additional Landlord Warranties........................ 17
38. General Provisions.................................... 18
</TABLE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A - Legal Description of Land...................... A-1
Exhibit A1- Legal Description of Project................... A-2
Exhibit B - Parking Plan................................... B-1
Exhibit C - Plan of the Premises........................... C-1
Exhibit D - Tenant Improvements............................ D-1
Exhibit E - Rules & Regulations............................ E-1
Exhibit F - Certificate of Corporate Resolution of Tenant.. F-1
Exhibit G - Option to Extend............................... G-1
</TABLE>
1
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12600 BUILDING
LEASE AGREEMENT
THIS LEASE is made and entered into this 13th day of October, 1999, by and
between STERLING REALTY ORGANIZATION CO., a Washington corporation ("Landlord"),
and INTERACTIVE OBJECTS, Inc., a Washington corporation ("Tenant").
As parties hereto, Landlord and Tenant hereby agree as follows:
LEASE PROVISIONS
1. Lease Provisions and Exhibits.
(a) Leased Premises. The leased premises (the "Premises") are situated on
the real property as more particularly described in Exhibit A attached
hereto (the "Land"), and consist of those portions of the building
located at 12600 SE 38th, in Bellevue, King County, Washington, 98006
which are described in paragraph 1(b) below, which building is
commonly known as (the "Building").
(b) Agreed Floor Areas. Landlord and Tenant agree that the floor area of
the Premises is approximately 7468 rentable square feet, which area is
comprised of Suite #130 of the Building. Landlord and Tenant agree
that the floor area of the Building is 52,227 rentable square feet.
Rentable square feet shall be calculated according to Building Owners
and Managers Association International ("BOMA") standards namely, the
"Standard Method for Measuring Floor Area in Office Buildings". The
load factor for the apportioned common area to be added to the useable
area shall be ten percent (10%). Floor plan of Premises shall be
attached as Exhibit C.
Landlord and Tenant agree that reasonable attempts have been made to
determine the correct square footage used in this Lease. Landlord
grants Tenant the option to remeasure and challenge the new Premises
square footage calculation at Tenant's expense. If Tenant's square
footage calculation differs from the number used in this Lease,
Landlord will remeasure at Landlord's expense to determine which
calculation is correct. Landlord and Tenant agree that any challenge
of the square footage calculation must be carried out within one (1)
month of the commencement date. After that time, Landlord and Tenant
agree to mutually waive any and all rights, claims, or liabilities
against each other as it relates to the calculation of square footages
to determine rents and other costs in this Lease.
(c) Tenant's Percentage of the Building. "Tenant's Percentage of the
Building" is equal to 14.3%, calculated by dividing the number of
rentable square feet in the Premises (7,468) by the number of rentable
square feet in the Building (52,227).
(d) Lease Term. The Lease term and Tenant's right to possession of the
Premises will commence on November 1, 1999 or the date of substantial
completion as set forth in "Exhibit D" of this Lease (the
"Commencement Date"). The Lease term will expire 5 (five) years after
the Commencement Date.
(e) Rent. The rent for the Premises is:$15,247.17 per month through
October 31, 2000;
$15,704.58 per month through October 31, 2001
$16,175.72 per month through October 31, 2002
$16,660.99 per month through October 31, 2003
$17,160.82 per month through October 31, 2004
Rent is to be paid in advance on or before the first day of each month
without offset or
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deduction at the offices of Landlord, Sterling Realty Organization
Co., 600 106/th/ Avenue NE, Suite 200, Bellevue, Washington 98004, or
P.O. Box 91723, Bellevue, Washington 98009, or such other place
designated by Landlord.
(f) Security Deposit. Landlord hereby acknowledges the receipt of
$17,160.82 (the "Security Deposit"). If Tenant is in default of its
obligations under this Lease, Landlord may use that portion of the
Security Deposit which is necessary to cure the default or to
compensate Landlord for any damage resulting from Tenant's default.
On demand, Tenant shall immediately pay to Landlord the sum necessary
to restore the Security Deposit to an amount equal to the last month's
rent. Landlord's obligations with respect to the Security Deposit are
those of a debtor and not a trustee. Landlord may maintain such sums
separate and apart from Landlord's general funds or may commingle them
with Landlord's general or other funds. Landlord is not required to
pay Tenant interest on such sums, or any portion thereof. If Building
is sold or transferred, Landlord shall be relieved of liability.
Tenant shall not occupy the Premises until said deposit has been paid
to Landlord. Should Tenant comply with all of the covenants and
conditions of this Lease, deposit shall be returned to Tenant at the
expiration of the term hereof. Landlord also acknowledges receipt of
an additional $17,160.82 from Tenant upon execution of this lease to
be applied towards the last months rent.
(g) Permitted Uses. The Premises shall be used only for general office
purposes and for no other purpose or use without the written consent
of Landlord.
GENERAL TERMS AND CONDITIONS
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 paragraph 1(a) hereof.
3. Term. The Lease term shall be for the period stated in paragraph 1(d)
hereof. The Lease term shall commence on the Commencement Date specified
in paragraph 1(d). Neither Landlord nor any agent or employee of Landlord
shall be liable for any damage or loss due to Landlord's inability or
failure to deliver possession of the Premises to Tenant as provided herein.
4. Rent. Tenant shall pay Landlord the monthly rent stated in paragraph 1(e)
hereof without demand, deduction or offset, payable in lawful money of the
United States in advance on or before the day specified in paragraph 1(e)
to Landlord at the offices of Landlord or its building manager at the place
specified in paragraph 1(e), or to such other party or at such other place
as Landlord may hereafter from time to time designate in writing. Rent for
any partial month at the beginning or end of the Lease term shall be
prorated. Notwithstanding anything in Section 7 hereof, the rent payable
by Tenant shall in no event be less than the rent specified in paragraph
1(e) of this Lease.
(a) Late Fees On Overdue Rent. Any rent, additional rent or other sums
payable by Tenant to Landlord which are not paid within three (3) days
following the due date thereof, shall bear interest at a rate equal to
five percent (5%) per annum above the prime lending rate as publicly
announced from time to time by Bank of America, calculated from the
date of delinquency to the date of payment. Any late payment of rent
will also be subject to a collection fee equal to five percent (5%) of
the amount due.
5. Notices. All notices under this Lease shall be in writing and delivered in
person or sent by facsimile or by registered or certified mail to Landlord
at the address below, to Tenant at the Premises and/or the address below,
and to the holder of any first mortgage or deed of trust at such place as
such holder shall specify to Tenant in writing; or at such other facsimile
number or address as may from time to time be designated by such party in
writing. Notices will be deemed to have been given on the date sent by
facsimile with evidence of receipt by the intended party, on the date
delivered in the case of personal delivery or, if mailed, on that date
which is two (2) days after the postmark thereof.
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LANDLORD: Sterling Realty Organization Co.
ADDRESS: 600 106/th/ Avenue NE, Suite 200, Bellevue, WA 98004
CONTACT: Property Manager
PHONE: (425) 455-8125
FAX: (425) 455-8165
TENANT: Interactive Objects, Inc.
ADDRESS: 12600 SE 38th, Suite 130, Bellevue, WA 98006
CONTACT: Steve Wollach
PHONE: 425/
FAX: 425/
6. Uses. The Premises are to be used only for the uses specified in paragraph
1(g) hereof (the "Permitted Uses") and for no other business or purpose
without the written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant shall not commit or allow any acts to be done
in or about the Premises that are unlawful or that will cause an increase
to the existing rate of insurance on the Building. Tenant shall not commit
or allow to be committed any waste upon the Premises, or create or allow to
be created any public or private nuisance in the Building. 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
or vibration or any increase in the normal use of electric power. If any of
Tenant's office equipment should disturb the quiet enjoyment of any other
tenant in the Building, then Tenant shall provide adequate insulation, or
take other such action as may be necessary to eliminate the disturbance.
Tenant shall comply with all laws and regulations relating to its use of
the Premises including, without limitation, laws and regulations relating
to hazardous wastes, and shall observe such reasonable rules and
regulations as may be adopted and published 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, including but not limited to
any rules and regulations which may be attached to this Lease.
7. Services and Utilities. Landlord shall furnish the Premises with
electricity for lighting and operation of customary office machines, water,
and elevator service, and, during Normal Business Hours, lighting, heat and
normal air conditioning. "Normal Business Hours" are defined as 8:00 a.m.
to 6:00 p.m., Monday through Friday, and 9:00 a.m. to 1:00 p.m. on
Saturdays. Outside Normal Business Hours, utility services will be
provided to the Premises, and Tenant shall pay Landlord for the actual cost
of providing lighting, heat and normal air conditioning, including the
associated electrical and maintenance costs.
(a) Extra Services. During all hours which are not business hours,
Landlord shall furnish all of such services set forth above, except
the following:
(1) Utility Services. If requested by Tenant, Landlord shall furnish
heat and air conditioning to the Premises at times other than
normal business hours, and the reasonable cost of such services
as established by Landlord and reasonably agreed to by Tenant
shall be paid by Tenant to Landlord as Additional Rent.
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(2) Janitorial Services. No janitorial service shall be provided
Fridays, Saturdays or legal holidays. The costs of any janitorial
or other services provided or caused to be provided by Landlord
to Tenant which are in addition to the services ordinarily
provided to tenants of the Building shall be payable by Tenant as
Additional Rent.
(3) Increased Utility Loads. Without the written permission of
Landlord, Tenant shall not install lights or equipment in the
Premises which consume electrical power or energy which, in the
aggregate, exceeds reasonable amounts for general office use in
comparable office buildings in Bellevue, Washington by other
Tenants for usual and customary general office use. Landlord may
refuse to grant such permission unless Tenant agrees to pay the
costs of installation of supplementary air conditioning or
electrical systems as necessitated by such equipment or lights.
Tenant shall pay to Landlord, as Additional Rent, the reasonable
amount estimated by Landlord as the additional cost of furnishing
electricity for the operation of such special equipment or lights
and the reasonable amount estimated by Landlord as the costs of
supplemental air conditioning provided to the Premises
necessitated by Tenant's use of such special equipment or lights.
Landlord shall be entitled to install and operate at Tenant's
sole cost and expense a monitoring/metering system in the
Premises to measure the added demands on electricity and HVAC
systems resulting from such equipment and lights and from
Tenant's after-hours HVAC service requirements. Tenant shall
comply with Landlord's reasonable instructions for the use of
drapes, blinds and thermostats in the Building.
Landlord shall not be liable for any loss, injury or damage to property
caused by or resulting from any variation, interruption, or failure of such
services due to any cause outside of Landlord's reasonable control. In the
event of such variation, interruption or failure, however, Landlord shall
use reasonable diligence to restore such service. No temporary interruption
or failure of such service incident to the making of repairs, alterations
or improvements or due to accident or 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.
8. Costs of Services and Utilities.
(a) Definitions. As used herein, the following terms have the following
respective meanings unless the context otherwise specifies or clearly
requires.
(1) Base Year Operating Costs" means Operating Costs for the calendar
year 1999 (the "Base Year") multiplied by Tenant's Percentage of
the Building.
(2) "Lease Year" means a calendar year commencing January 1 and
ending December 31.
(3) "Operating Costs" means all reasonable and necessary expenses,
based on Landlord's reasonable business judgment and customary
practices, paid or incurred by Landlord for maintaining,
operating and repairing the Building (including the parking
facilities), the Land, and the personal property used in
conjunction therewith, to the extent not paid directly by Tenant,
including but not limited to all expenses paid or incurred by
Landlord for Property Taxes as defined in Section 8 below;
insurance required in Landlord's sole discretion; electricity
during Normal Business Hours, water, gas, sewer, refuse
collection, telephone charges and security service not chargeable
to tenants and similar utilities services; the cost of supplies
and window washing, cost of services of independent contractors,
allowance to Landlord's agent for supervision of such maintenance
operation services and repair of the Building, Land and common
areas, cost of compensation (including employment taxes and
fringe benefits) of all persons who perform duties in connection
with such Operating Costs and any other expense or charge which
in accordance with generally accepted accounting and management
principles would be considered an expense of maintaining,
operating or repairing the Building, together with a property
management fee equal to four percent (4%) of the
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monthly rent provided in paragraph 1(e) hereof. Operating Costs
shall include the cost of replacing cracked or broken exterior
windows, but shall not include (A) costs for maintaining and
repairing structural components of the Building; (B) any
depreciation or amortization costs related to the Building or any
portion or component of the Building or any equipment or other
property used in connection with the Building, except as
specifically permitted by the terms of this Lease; (C) any loan
payments, principal or interest, or ground lease or similar
payments; (D) any leasing costs, including brokerage commissions,
legal fees, vacancy costs, and refurbishment or improvement
expenses, in connection with the premises of a particular tenant;
(E) any collection costs, including legal fees, or bad debt
losses or reserves; (F) any costs or expenses resulting from
Landlord's violation of any agreement to which it is a party or
any applicable laws or ordinances or governmental rules,
regulation, or orders; (G) Landlord's general corporate overhead
and general and administrative expenses in excess of costs and
expenses directly attributable to the operation and management of
the Building; or (H) any cost or expenses which would not, under
generally accepted accounting and management principles, be
regarded as a maintenance and operating expense.
(4) "Estimated Operating Costs" means Landlord's estimate of
Operating Costs for the following Lease Year to be given by
Landlord to Tenant pursuant to paragraph 7(b)(1).
(b) Additional Rent. Tenant shall pay to Landlord as rent, in addition to
the rent provided in paragraph 1(e) above, all Operating Costs
allocable to the Premises which are in excess of the Base Year
Operating Costs, and any and all other sums expressly provided for
hereunder, and not otherwise included in such excess Operating Costs.
(1) Rent Adjustment for Estimated Operating Costs. Landlord shall
furnish to Tenant a written statement setting forth (A) Estimated
Operating Costs for each occupied calendar year, and (B) the
amount of Additional Rent payable monthly during such calendar
year, which will equal one-twelfth (1/12) of the amount, if any,
by which Estimated Operating Costs exceeds Base Year Operating
Costs. If such Estimated Operating Costs are furnished after the
commencement of the Lease Year, Tenant shall also make a
retroactive lump-sum payment equal to the amount of such excess
multiplied by the number of months during the Lease Year for
which no such adjustment was paid.
(2) Actual Operating Costs. Within ninety (90) days after the close
of each Lease Year during the term hereof, Landlord shall deliver
to Tenant a written statement setting forth the actual Operating
Costs during the preceding Lease Year. If such costs for any
Lease Year exceed the Estimated Operating Costs paid by Tenant to
Landlord pursuant to paragraph 7(b)(1) for such Lease Year,
Tenant shall pay the amount of such excess to Landlord as
additional rent within thirty (30) days after receipt of such
statement by Tenant. If such statement shows such costs to be
less than the amount paid by Tenant to Landlord pursuant to
paragraph 7(b)(1), then the amount of such overpayment shall be
credited toward the next monthly rent payable by Tenant.
(3) Determinations. The determination of Operating Costs and
Estimated Operating Costs shall be made by Landlord. If Tenant
notifies Landlord in writing within thirty (30) days after the
receipt by Tenant of Landlord's statement setting forth the
preceding year's Operating Costs, then Tenant may audit
Landlord's books and records pertaining to Operating Costs. In
the event that any such audit, conducted in accordance with
generally accepted accounting principles, reveals a discrepancy
of three percent (3%) or more between Landlord's statement of the
actual Operating Costs for a Lease Year and the amount of such
Operating Costs determined by such audit, then if the Operating
Costs were overstated Landlord shall reimburse to
Tenant the excess amount paid by Tenant and Landlord shall
pay for the reasonable cost of such audit; but if the
Operating Costs were understated then Tenant shall pay to
Landlord the amount of such deficiency and Tenant shall pay
for the cost of such audit.
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Rent due pursuant to this section shall be additional rent
payable by Tenant hereunder, and in the event of nonpayment
thereof, Landlord shall have similar rights with respect to such
nonpayment as it has with respect to any other nonpayment of rent
hereunder.
(4) End of Term. If this Lease terminates on a day other than the
last day of a Lease Year, the amount of any adjustment between
Estimated Operating Costs and actual Operating Costs with respect
to the Lease Year in which such termination occurs will be
prorated on the basis which the number of days from the
commencement of such Lease Year to and including such termination
date bears to 365, and any amount payable by Landlord to Tenant
or Tenant to Landlord with respect to such adjustment is payable
within thirty (30) days after delivery of the statement of
Operating Costs with respect to such Lease Year.
9. Property Taxes. "Property Taxes" means all real property taxes and
assessments and personal property taxes, charges and assessments levied
with respect to the Land, the Building, and any improvements, fixtures and
equipment, and all other property of Landlord, real or personal, located in
or on the Building and used in connection with the operation of the
Building.
10. Taxes on Rents and Personal Property. If any governmental authority shall
in any manner levy a tax on rents payable under this Lease or rents
accruing from Tenant's use of property, or such a tax in any form against
Landlord measured by income derived from the leasing or rental of the
Building, such tax shall be paid by Tenant either directly or through
Landlord; provided, however, that Tenant shall not be liable to pay any
state or federal net income tax imposed on Landlord.
Tenant shall pay prior to delinquency all personal property taxes with
respect to all property of Tenant located on the Premises or the Building
and shall provide promptly upon request of Landlord written proof of such
payment.
11. Acceptance of Premises. Landlord shall deliver the Premises to Tenant in a
clean and orderly condition. Tenant accepts the Premises in their existing
condition, "as is" and "where is," including all existing carpet, doors,
cabinets and partitions, and without any obligation on the part of Landlord
to make any alterations or improvements thereto, except as may otherwise be
expressly provided in this Lease.
12. Improvements. Subject to Section 21 of this Lease, upon the expiration or
sooner termination of this Lease, all improvements and additions to the
Premises made by Tenant shall become the property of Landlord.
13. Alterations and Care of Premises. Tenant shall take good care of the
Premises and shall promptly make all necessary repairs and maintenance,
except those to be made by Landlord as provided herein:
(a) Except as expressly permitted by the terms of this paragraph, Tenant
shall not make any alterations, additions or improvements in or to the
Premises, or make changes to locks on doors, or add, disturb or in any
way change any floor covering, wall covering, fixtures, plumbing or
wiring, without first obtaining the written consent of Landlord, which
consent shall not be unreasonably withheld. Landlord may, in
determining whether to grant or withhold its consent to a particular
alteration, addition or improvement, consider the likelihood that the
particular alteration, addition or improvement will be usable by a
subsequent tenant of the Premises. If Landlord withholds its consent
to a particular alteration, addition or improvement based on the
unlikelihood that a subsequent tenant would find that alteration,
addition or improvement usable, then Tenant may proceed to make the
particular alteration, addition or improvement, but shall remove it
from the Premises prior to the expiration or earlier termination of
this Lease. Within thirty (30) days
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following the completion of any alterations or improvements, Tenant
shall provide Landlord with "as-built" plans showing the alterations
or improvements made to the Premises.
(b) If Landlord's consent is required, then prior to Tenant commencing
work on any alteration, addition or improvement to the Premises,
Tenant shall submit to Landlord two (2) copies, and, at the request of
Landlord, shall submit to any mortgagee holding a mortgage or deed of
trust encumbrance on the Land one (1) copy, of full and complete plans
and specifications detailing the design and plan of improvements for
any such alteration, addition or improvement.
Landlord does not and will not make any covenant or warranty, express
or implied, that any such plans or specifications submitted by Tenant
are accurate, complete or in any way suited for their intended
purpose. Landlord shall either approve or disapprove plans within ten
(10) business days and, if approved, return a signed, approved copy to
Tenant. Landlord will not unreasonably withhold approval. In the
event that the plans are not approved by Landlord, Landlord shall
inform Tenant of the reasons for its disapproval and Tenant shall have
twenty (20) days in which to submit revised plans to Landlord for
approval. Tenant shall not unreasonably refuse to satisfy any
objections made by Landlord to the plans and specifications. Any
objections Tenant has to Landlord's objection shall be submitted to
Landlord in writing within the twenty (20) day period. A failure of
one party to give any notice to the other party within the period
provided for doing so shall be deemed to constitute approval of the
plans and specifications or the objections thereto, as appropriate.
Within thirty (30) days following the completion of any alterations or
improvements, Tenant shall provide Landlord with "as-built" plans
showing the alterations or improvements made to the Premises.
(c) All such work so done by Tenant shall be done in accordance with all
laws, ordinances, and rules and regulations of any federal, state,
county, municipal or other public authority and/or Board of Fire
Underwriters. Tenant expressly covenants and agrees that no liens of
mechanics, materialmen, laborers, architects, artisans, contractors,
subcontractors, or any other lien of any kind whatsoever shall be
created against or imposed upon the Premises, the Land or the
Building, and that in the event any such claims or liens of any kind
whatsoever shall be asserted or filed by any persons, firms or
corporations performing labor or furnishing material in connection
with such work, Tenant shall pay off or cause the same to be
discharged of record within five (5) days of notification thereof.
All alterations, improvements, or changes made by Tenant to the
Premises shall be the property of Landlord and shall remain upon and
be surrendered with the Premises upon the termination of this Lease;
provided, however, that Tenant shall remove any alteration, addition
or improvement made to the Premises by Tenant subsequent to the
completion of the initial tenant improvements to be made pursuant to
Exhibit D below and to which Landlord withheld its consent under the
terms of paragraph 12 above. Tenant will remove any such alterations,
additions or improvements made by Tenant prior to Tenant surrendering
possession of the Premises to Landlord, and repair any damage caused
to the Premises thereby, all at the sole cost and expense of Tenant.
After the beginning of each Lease Year during the term of this Lease
or any Renewal Term, Landlord may deliver a certificate to Tenant
requesting that Tenant provide Landlord with an itemized list of all
alterations, improvements or changes that Tenant has made to the
Premises during the previous Lease Year. Tenant shall complete the
certificate and return the same to Landlord within thirty (30) days
following the date on which it was received. In the event no
alterations or improvements were made during the previous Lease Year,
Tenant shall so indicate on the certificate provided.
All damage or injury done to the Building or the Premises or any
appurtenances to either by Tenant, or by Tenant's agents, invitees,
licensees, or employees, or by any other persons who
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may be in the Building or upon the Premises with the consent of
Tenant, including the cracking or breaking of glass of any windows and
doors, shall be paid for by Tenant.
(d) Tenant shall not put curtains, draperies or other hangings on or
beside the windows in the Premises or place any furniture on the
patios or common areas without first obtaining Landlord's consent.
All normal repairs necessary to maintain the Premises in a tenantable
condition and consistent with the standards for a Class A office
building in the Seattle metropolitan area shall be done by or under
the direction of Landlord, acting reasonably and in good faith.
Tenant shall promptly notify Landlord of any damage to the Premises
requiring repair, and within thirty (30) days thereafter, Landlord
shall notify Tenant whether it will proceed to make the repairs. If
Landlord elects not to make either some or all of the repairs set
forth in Tenant's notice, then Landlord shall provide Tenant with an
explanation as to why Landlord deems the repairs unnecessary. If
Landlord fails to respond to Tenant's notice within the 30-day period
provided for doing so, then Tenant may cause the repairs to be
accomplished. Landlord shall reimburse Tenant for all reasonable
costs and expenses incurred by Tenant in making the repairs, and such
reimbursement shall be made within thirty (30) days of Landlord's
receipt of an invoice for the amount of such costs and expenses.
(e) Landlord shall be responsible for maintaining and repairing the
structural components of the Building. If Tenant believes that there
is a problem or defect in the structural elements of the Building,
including problems or defects in the foundation, exterior walls,
floors or the roof system, and also including but not limited to
safety aspects of the Building (as determined under applicable
building codes as in effect on the date hereof), Tenant shall give
Landlord notice of any such defect. Tenant and Landlord shall
cooperate to determine promptly whether any such defect exists and to
identify any damage to the Building resulting from such defect.
Landlord shall repair any such defect and resulting damage. If
Landlord fails to make any such repairs which can reasonably be
completed within fifteen (15) days, within thirty (30) days after such
determination, or fails to commence within thirty (30) days after such
determination and diligently proceed to complete any such repairs
which cannot reasonably be completed in fifteen (15) days, Tenant
shall have the right, but not the obligation, to cause such repairs to
be accomplished. Landlord shall reimburse Tenant for all reasonable
costs and expenses incurred by Tenant in making the repairs, and such
reimbursement shall be made within thirty (30) days of Landlord's
receipt of an invoice for the amount of such costs and expenses.
(f) Tenant shall, at the expiration or sooner termination of this Lease,
surrender and deliver the Premises to Landlord in as good or better
condition as when received by Tenant from Landlord or as thereafter
improved, reasonable use and wear and damage by fire or other insured
casualty excepted.
14. Liens and Insolvency. Tenant shall keep the Premises and the Building free
from any liens arising out of any work performed, materials ordered or
obligations incurred by Tenant. If Tenant becomes insolvent, voluntarily
or involuntarily bankrupt, or if a receiver, assignee or other liquidating
officer is appointed for the business of Tenant, then Tenant shall be
deemed to be in default under the terms of this Lease and Landlord may, in
addition to any other remedy provided in this Lease, terminate Tenant's
right of possession under this Lease at Landlord's option and in no event
shall the Lease or any rights or privileges hereunder be an asset of Tenant
under any bankruptcy, insolvency or reorganization proceedings.
15. Access. Tenant shall permit Landlord and its agents (including, but not
limited to any mortgagee holding a mortgage or deed of trust which is an
encumbrance against the Land) to enter into and upon the Premises but,
except in an emergency, only on advance reasonable notice and at
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reasonable times for the purpose of inspecting the same or for the purpose
of repairing, altering or improving the Premises or the Building. Nothing
contained in this Section 15 shall be deemed to impose any obligation upon
Landlord not expressly stated herein or elsewhere in this Lease. Landlord
shall, on the same basis, have the right to enter the Premises for the
purpose of showing the Premises to prospective tenants within 180 days
prior to the expiration or sooner termination of the Lease term.
16. Damage or Destruction. If the Premises are destroyed or rendered
untenantable, either wholly or in part, by fire or other unavoidable
casualty, Landlord may, at its option, either (a) terminate this Lease as
provided herein, (b) allow Tenant to terminate this Lease as provided
herein, or (c) restore the Premises to their previous condition, and in the
meantime the monthly rent shall be abated in the same proportion as the
untenantable portion of the Premises bears to the whole thereof. If
Landlord elects not to restore the Premises and to terminate this Lease,
then Landlord shall so notify Tenant within thirty (30) days after receipt
from Tenant of notice that Tenant deems the Premises untenantable
("Tenant's Notice"). If Landlord elects to restore the Premises, then
Landlord shall so notify Tenant within thirty (30) days after receipt from
Tenant of Tenant's Notice, and shall begin the restoration work within
sixty (60) days of such date, in which event this Lease will continue in
full force and effect. If Landlord fails to notify Tenant of its election
within thirty (30) days after receipt from Tenant of Tenant's Notice, then
Tenant may terminate this Lease immediately upon written notice to
Landlord. If the damage is due directly or indirectly to the fault or
neglect of Tenant, or its officers, contractors, licensees, agents,
servants, employees, guests, invitees or visitors, there will be no
abatement of rent.
If the Building or the Premises are destroyed or damaged by fire or other
casualty insured against under Landlord's fire and extended coverage
insurance policy to the extent that more than fifty percent (50%) of either
is rendered untenantable, or if the Building or the Premises are destroyed
or materially damaged by any other casualty other than those covered by
such insurance policy, notwithstanding that the Premises may be unaffected
directly by such destruction or damage, Landlord may, at its election,
terminate this Lease by notice in writing to Tenant within sixty (60) days
after such destruction or damage. Such notice will be effective thirty
(30) days after receipt thereof by Tenant. If the Premises are damaged or
destroyed and Landlord elects to repair and reconstruct the Premises, then
the term of this Lease will, at Landlord's option, be extended for the time
required to complete such repair and reconstruction. Landlord shall not be
required to repair or restore fixtures, improvements, or other property of
Tenant.
(a) Business Interruption. Other than as provided in Section 16 above, no
damages, compensation, or claim shall be payable by Landlord to Tenant
for inconvenience, loss of business, or annoyance arising from any
repair or restoration of any portion of the Premises or of the
Building as a result of fire or other casualty. Landlord shall use
its best efforts to effect such repairs promptly.
(b) Tenant Improvements. Landlord will not carry insurance of any kind on
Tenant's furniture or furnishings or on any other personal property
fixtures, equipment, improvements, or appurtenances owned or installed
by Tenant, and Landlord shall not be obligated to repair any damage
thereto or replace the same.
17. Indemnification, Insurance and Waiver of Subrogation.
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(a) Indemnification. It is understood and agreed that Landlord shall not
be liable for injury to any person, or for the loss of or damage to
any property (including property of Tenant) occurring in or about the
Premises from any cause whatsoever, except for that caused by
Landlord's gross negligence or willful misconduct. Tenant hereby
indemnifies and holds Landlord harmless from and against and agrees to
defend Landlord against any and all claims, charges, liabilities,
obligations, penalties, causes of action; liens, damages, costs and
expenses (including attorneys' fees) arising, claimed, charged or
incurred against or by Landlord from any matter or thing arising from
Tenant's use of the premises, the conduct of its business or form any
activity, work or other thing done, permitted or suffered by Tenant in
or about the Premises or Common Areas, whether arising from any breach
or default in the performance of any obligation on Tenant's part or to
be performed under the terms of this Lease, or arising from any act or
negligence of Tenant, or any officers, contractor, agent, employee,
guest, licensee, or invitee of tenant, and from all costs, attorneys'
fees, and liabilities incurred in or about the defense of any such
claim (including appeals) or any action or proceeding brought thereon
and in the event that any action or proceeding is brought against
Landlord by reason of such claim. Tenant, upon notice from Landlord,
shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all cause other than
Landlord's gross negligence or willful misconduct, and Tenant hereby
waives all claims in respect thereof against Landlord. Tenant shall
maintain business interruption insurance and automobile insurance with
respect to all Tenant owned motor vehicles parking on the Property.
The indemnification provided for in this paragraph shall survive any
termination or expiration of this Lease. Landlord and its agents
shall not be liable for any loss or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the
Premises or from pipes, appliances or plumbing works therein or from
the roof, street or subsurface or from any other place resulting from
dampness or any other cause whatsoever, unless caused by or due to the
gross negligence of Landlord, its agents or employees. Landlord and
its agents shall not be liable for interference with the light or air
to the Premises or for any latent defect on the Premises. Tenant
shall give prompt notice to Landlord in case of casualty or accidents
on or about the Premises.
(b) Insurance.
(1) Liability Coverage. During the entire Lease Term and at any time
prior to the Lease Term commencing with the day on which
possession of the Premises is delivered to Tenant for any reason,
Tenant shall, at its own expense, maintain commercial general
liability insurance with minimum amounts of $1,000,000 single
limit per occurrence and $2,000,000 in the aggregate for personal
injuries and property damage on or about the Premises to
indemnify both Landlord and Tenant against any such claims,
demands, losses, damages, liabilities and expenses. Landlord and
the management company, if any, employed by Landlord with respect
to the Building shall be named as additional insureds and shall
be furnished with a certificate of insurance which shall bear an
endorsement that the same shall not be canceled except upon not
less than thirty (30) days' prior written notice to Landlord.
(2) Property Coverage. Tenant shall, at its own expense, maintain
during the Lease Term and at any time prior to the Lease Term
commencing with the date on which possession of the Premises is
delivered to Tenant for any reason, insurance covering its
furniture, fixtures, equipment, all leasehold improvements and
inventory in an amount equal not less than 100% of the full
replacement value thereof as provided by basic form coverage with
a special form endorsement.
(c) Increase in Insurance Premium. Tenant shall not keep, use, sell or
offer for sale in or upon the Premises any article which may be
prohibited by the form of property insurance policy required to be
carried under this Lease. Tenant shall pay any increase in premiums
for
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property (including special form coverage) insurance that may be
charged during the term of this lease on the amount of such insurance
which may be carried by Landlord on the Premises, the Building or the
Property of which the Premises are a part, resulting from Tenant's
occupancy, whether or not Landlord has consented thereto. In such
event, Tenant shall also pay any additional premiums on the insurance
policy that Landlord may carry for its protection against the loss of
business income through property damage. In determining whether
increased premiums are the result of Tenant's use of the Premises, a
schedule, issued by the organization setting the insurance rate on the
Premises, showing the various components of such rate, shall be
conclusive evidence of the several items and charges which make up the
property insurance rate on the Premises. Landlord shall deliver bills
for such additional premiums to Tenant at such times as Landlord may
elect, and Tenant shall immediately reimburse Landlord therefore.
(d) Waiver of Subrogation. Landlord and Tenant hereby mutually release
each other from liability and waive all rights of recovery against
each other for any loss in or about the Premises, from perils insured
against under their respective property insurance policies, including
any special form endorsements thereof, whether due to negligence or
any other cause. This paragraph shall, however, be inapplicable if it
would have the effect, but only to the extent it would have the
effect, of invalidating any insurance coverage of Landlord or Tenant.
Tenant shall, at the request of Landlord, execute and deliver to
Landlord a Waiver of Subrogation in the form and content as required
by Landlord's insurance carrier.
(e) Companies. Insurance required hereunder shall be issued by companies
rated A-VII or better in "Bests" Insurance Guide, or such other
companies approved by Landlord.
(f) Certificate of Insurance. A certificate issued by the insurance
carrier for each policy of insurance required to be maintained by
Tenant under the provisions of this Lease shall be delivered to
Landlord upon or before the delivery of the Premises to Tenant for any
purpose, and thereafter within thirty (30) days prior to the
expiration of the term of each such policy. Each certificate of
insurance and each policy of insurance required to be maintained by
Tenant hereunder shall expressly evidence insurance coverage as
required by this lease. All such policies shall be written as primary
policies not contributing with and not in excess of coverage which
Landlord may carry.
18. Assignment and Subletting. Except as provided below, Tenant shall not
voluntarily or by operation of law assign, mortgage or otherwise encumber
all or any part of Tenant's interest in this Lease or in the Premises
without obtaining the prior written consent of Landlord in each instance
and any attempt to do so without first obtaining such consent shall be
voidable at the option of Landlord; provided, however, that Landlord shall
not unreasonably withhold or delay such consent, which consent shall
require that such assignee, mortgagee or encumbrancee consent to be bound
by all of the terms and conditions of this Lease. In the event of any
sublease or assignment to which Landlord's consent is requested and given,
Landlord shall collect the rent paid by Tenant's sublessee or assignee
which is in excess of the rent due under this Lease, on a per rentable
square foot basis. In reviewing any request for an assignment of Tenant's
interest under this Lease, Landlord may take into consideration the credit-
worthiness and business use of the proposed assignee. Notwithstanding any
of the foregoing, without the consent of Landlord, Tenant may voluntarily
or by operation of law assign and delegate this Lease to the surviving
corporation upon any reorganization, merger, consolidation or acquisition
of Tenant, and Tenant may assign, sublet and delegate this Lease for all or
any portion of the Premises to its parent company, any wholly-owned
subsidiary or any affiliate, provided that both Tenant and any such
assignee shall both be bound by all of the terms and conditions of this
Lease. Use and occupancy by assignee will be consistent with operation and
maintenance of a First Class office building and will not be in conflict
with any other Lease in the Building.
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Tenant shall not sublease the Premises without obtaining the prior written
consent of Landlord, which consent of Landlord shall not be unreasonably
withheld or delayed, and which consent shall require that such subtenant
consent to be bound by all of the terms and conditions of this Lease.
Consent to one assignment, subleasing or other transfer shall not be deemed
to constitute consent to any subsequent assignment, subleasing or other
transfer of Tenant's interest in this Lease. Except as expressly provided
herein, no such assignment or subletting shall relieve Tenant of any
liability under this Lease regardless of whether such liability arises by
or through Tenant. Assignment or subletting shall not operate as a waiver
of the necessity for a written consent to any subsequent assignment or
subletting, and the terms of such consent shall be binding upon any person
holding by, under or through Tenant. Landlord may, at its election, collect
rent directly from such assignee or subtenant. If such consent is
requested, Landlord reserves the right to terminate this Lease, or if
consent is requested for subletting less than the entire Premises, Landlord
reserves the right to terminate this Lease at the date of sublet
commencement.
In the event Tenant desires to assign this Lease or sublet the Premises or
any part hereof, Tenant shall give Landlord written notice at least thirty
(30) days in advance of the date on which Tenant desires to make such
assignment or sublease, which notice shall specify: (a) the name, address
and business of the proposed assignee or sublessee, (b) the amount and
location of the space affected, and (c) the proposed effective date and
duration of the subletting or assignment, and (d) current financial
statements of the proposed assignee or sublessee. Each request for an
assignment or subletting must be accompanied by a Processing Fee, equal to
no less than five hundred dollars ($500.00) plus reasonable legal fees, in
order to reimburse Landlord for expenses, incurred in connection with such
request.
19. Holdover. If Tenant, without the written consent of Landlord, holds over
after the expiration or termination of the term of this Lease, Tenant shall
be deemed to be occupying the Premises on a month-to-month tenancy, which
tenancy may be terminated as provided by the laws of the State of
Washington. During such tenancy, Tenant agrees to pay to Landlord rent
equal to one hundred fifty percent (150%) of the rent as set forth herein,
unless a different rate shall be agreed upon, and to be bound by all of the
terms, covenants an conditions herein specified, so far as applicable.
20. Surrender of Premises. Upon the expiration or sooner termination of the
term of this Lease, whether by lapse of time or otherwise, Tenant shall
promptly and peacefully surrender the Premises to Landlord, and shall
return to Landlord all keys thereto.
21. Removal of Property. Upon the expiration or sooner termination of this
Lease, Tenant may remove its trade fixtures, office supplies and movable
office furniture and equipment not attached to the Building provided (a)
such removal is made prior to the termination or expiration of this Lease,
(b) Tenant is not in default under any provision of this Lease at the time
of such removal, and (c) Tenant immediately repairs all damage caused by or
resulting from such removal. All other property in the Premises and any
alterations or additions thereto (including, without limitation, wall-to-
wall carpeting, paneling, wall covering, or lighting fixtures and
apparatus) and any other article affixed to the floor, wall or ceiling of
the Premises shall become the property of Landlord and shall remain upon
and be surrendered with the Premises, Tenant hereby waiving all rights to
any payment or compensation therefor. If, however, Landlord so requests in
writing, Tenant shall, upon termination of this Lease, remove such
alterations, additions, fixtures, equipment and property placed or
installed by Tenant in the Premises subsequent to the completion of the
tenant improvements to be made pursuant to Exhibit D below and to which
Landlord withheld its consent under the terms of paragraph 12 above, and
shall immediately repair any damage caused by or resulting from such
removal to the condition of the Premises prevailing upon commencement of
this Lease, reasonable wear and tear excepted.
If Tenant fails to remove any of its property of any nature whatsoever from
the Premises or the Building at the termination of this Lease or when
Landlord has the right of reentry, Landlord may, at its option, remove and
store said property without liability for loss thereof or damage thereto,
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such storage to be for the account and at the expense of Tenant. If Tenant
does not pay the cost of storing any such property after it has been stored
for a period of thirty (30) days or more, Landlord may, at its option, sell
or permit to be sold any or all of such property at public or private sale
(and Landlord may become a purchaser at such sale), in such manner and at
such times and places as Landlord in its sole discretion may deem proper
without notice to Tenant, and shall apply the proceeds of such sale: first,
to the cost and expense of such sale, including reasonable attorneys' fees
actually incurred; second, to the payment of the costs or charges for
storing any such property; third, to the payment or any other sums of money
which may then be or thereafter become due Landlord from Tenant under any
of the terms hereof; and fourth, the balance, if any, to Tenant.
22. Defaults.
(a) Tenant's Defaults. Time is of the essence hereof, and in the event
Tenant violates or breaches or fails to keep or perform any covenant,
agreement, term or condition of this Lease, and if such default or
violation continues or is not be remedied within five (5) business
days (or, if no default in the payment of money is involved, then
within ten (10) days, or if such breach cannot be cured within ten
(10) days, then Tenant commences a cure within ten (10) days and
thereafter diligently prosecutes such cure to completion) after notice
in writing thereof is given by Landlord to Tenant specifying the
matter claimed to be in default, or if Tenant abandons or vacates the
Premises or any significant portion thereof, Landlord, at its option,
may immediately declare Tenant's rights under this Lease terminated,
and reenter the Premises using such force as may be necessary, and
repossess itself thereof, as of its former estate, and remove all
persons and property from the Premises. Notwithstanding any such
reentry, the liability of Tenant for the full payment of rent and
other amounts owed hereunder or provided for herein shall not be
extinguished for the balance of this Lease, and Tenant shall make good
to Landlord any deficiency arising from a reletting of the Premises at
a lesser rent, plus the costs and expenses of renovating, altering and
reletting the Premises, including attorneys' fees or brokers' fees
incident to Landlord's reentry or reletting. Tenant shall pay any
such deficiency each month as the amount thereof is ascertained by
Landlord or, at Landlord's option, Landlord may recover, in addition
to any other sums, the amount at the time of judgment by which the
unpaid rent for the balance of the term after judgment exceeds the
amount of rental loss which Tenant proves could be reasonably avoided,
discounted at the then Federal Discount Rate less two percent (2%).
The calculation of any amount of rental loss which Tenant claims could
be reasonably avoided shall take into account those sums which are
reasonably anticipated to be expended by Landlord for tenant
improvements, moving expenses, lease assumption costs, real estate
commissions, and all other costs associated with reletting the
Premises. In reletting the Premises, Landlord may grant rent
concessions and Tenant shall not be credited therefore. Nothing
herein shall be deemed to affect the right of Landlord to recover for
indemnification under Section 17 herein arising prior to the
termination of this Lease, or for any other remedy at law or in
equity.
(b) Landlord's Defaults. If Landlord fails to keep and perform any
covenants and agreements herein contained, and if after written notice
from Tenant specifying such default and permitting Landlord at least
thirty (30) days (except in the event of an emergency or a situation
affecting the tenantable condition of the Premises, in which case
Landlord will be permitted a reasonable time under the circumstances)
to remedy same Landlord has failed to remedy such default, then Tenant
may, but shall not be obligated to, remedy such default. Landlord
shall reimburse Tenant for all reasonable costs and expenses incurred
by Tenant in remedying such default, and such reimbursement shall be
made within thirty (30) days of Landlord's receipt of an invoice for
the amount of such costs and expenses. All rights and remedies of
Tenant under this Lease are cumulative and are not exclusive of any
other rights and remedies provided to Tenant under applicable law.
23. Right to Perform. If Tenant fails to pay any sum of money, other than
rent, required to be paid by it hereunder or fails to perform any other act
on its part to be performed hereunder, and such failure
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continues for five (5) business days after notice thereof by Landlord, or
such shorter time if reasonable under the circumstances, Landlord may, but
shall not be obligated so to do, and without waiving or releasing Tenant
from any obligations of Tenant, make any such payment or perform any such
other act on Tenant's part to be made or performed as provided in this
Lease. 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.
24. Nonwaiver. Waiver by Landlord of any breach of any term, covenant, or
condition herein contained 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 rent hereunder by Landlord
shall not be deemed to be a waiver of any preceding breach by Tenant of any
term, covenant, or condition of the Lease, other than the failure of Tenant
to pay the particular rent so accepted, regardless of Landlord's knowledge
of such preceding breach at the time of acceptance of such rent.
25. Costs and Attorneys' Fees. In the event of any action or proceeding
arising out of or in connection with this Lease, the substantially
prevailing party shall be entitled to all costs, expenses and reasonable
attorneys' fees, with or without suit and on appeal.
26. Priority. Tenant agrees that this Lease will be subordinate to any
mortgage, deed of trust or other lien covering the Premises, upon and
subject to the following terms and conditions: Tenant's subordination
hereunder is expressly conditioned on execution and delivery to Tenant by
each mortgagee, each lienholder and each beneficiary of a deed of trust by
whom subordination is hereafter requested, of a non-disturbance agreement
reasonably acceptable to Tenant. Such agreement shall be in a form
typically used for commercial tenancies, shall be in recordable form and
shall recognize Tenant's rights under this Lease in the event Landlord's
interest is terminated while this Lease is in full force and effect. Such
non-disturbance agreement shall include, among other things, a provision to
the effect that in the event of a termination of the ground or underlying
lease or foreclosure of the mortgage, deed of trust or other lien in favor
of said secured party, or upon a sale of the property encumbered thereby
pursuant to the trustee's power of sale contained therein, or upon a
transfer of the Building or the Premises by deed in lieu of foreclosure,
then for so long as Tenant is not in material default under the terms,
covenants, and conditions of this Lease, this Lease shall continue in full
force and effect as a direct lease between the owner or succeeding owner of
the Premises or the Building (as appropriate), as Landlord, and Tenant for
the balance of the term of this Lease, upon and subject to all of the
terms, covenants and conditions of this Lease. Such nondisturbance
agreement shall not include any terms which are inconsistent with the terms
of this Lease or which adversely affect Tenant's rights or increase
Tenant's obligations under this Lease.
Upon request by Landlord or the landlord under a ground lease or an
underlying lease, or the holder of any mortgage, lien or deed of trust now
existing or that may hereafter be placed upon the Land, Premises or the
Building, Tenant will promptly execute an agreement of subordination, non-
disturbance and attornment in form acceptable to such requestor which is
consistent with the foregoing.
27. Nondisturbance.
(a) Subordination. This Lease shall be subject and subordinate to any
first mortgage or deed of trust now existing or hereafter placed upon
the Land, the Building, or the Premises, created by or at the instance
of Landlord, and to any and all advances to be made thereunder, and to
interest thereon and all modifications, renewals, and replacements or
extensions thereof ("Landlord's Mortgage").
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(b) Foreclosure. In the event of a foreclosure under Landlord's Mortgage,
this Lease shall continue in full force and effect, Tenant's
possession of the Premises shall not be disturbed provided Tenant is
not in default under this Lease, and Tenant will attorn to and
recognize the mortgagee or purchaser at a foreclosure sale as Tenant's
landlord for the remainder of the Lease Term. The successor landlord
shall not be bound by (i) any payment of Rent or Additional Rent for
more than one month in advance, except the security Deposit and free
rent, if any, specified in this Lease; (ii) any amendment,
modification or termination of this Lease without the successor
landlord's consent after Tenant is notified of the successor
landlord's succession, unless the amendment, modification, or
termination is specifically authorized by this Lease and does not
require Landlord's prior agreement or consent; or (iii) any liability
for any act or omission of prior landlord.
(c) Self-Operating. This Section is self-operating; provided, however
Tenant shall promptly execute and deliver any document required by
Landlord or the holder of Landlord's Mortgage necessary to confirm the
agreement set forth in this Section.
28. Estoppel Certificates. Landlord and Tenant shall, at any time and from
time to time during any term of the Lease, upon not less than fifteen (15)
days' prior written request from the other, execute, acknowledge and
deliver to the other or its designee a statement in writing certifying: (1)
the date this Lease was executed and the date it expires; (2) the date of
occupancy; (3) the amount of minimum monthly rent and the date to which
such rent has been paid; (4) that this Lease is unmodified and in full
force and effect (or, if modified, stating with specificity the nature of
such modification); (5) that this Lease represents the entire agreement
between the parties as to this leasing; (6) that there is not, to its
knowledge, any default by the other hereunder, or, if any default is
alleged, then specifying such default; (7) that on that date there are no
existing defenses or offsets which that party has against the enforcement
of this Lease by the other; and (8) that no security has been deposited
with Landlord (or, if so, the amount thereof). Any such statement shall be
provided by the party requesting its completion, and such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of
the Premises or assignee or encumbrancer of Tenant's interest under this
Lease. In the event of the failure to deliver such statement within such
time, the requested party shall be conclusively deemed to have admitted the
accuracy of any information supplied by the requestor to a prospective
purchaser or mortgagee related to any of the matters described in (1)
through (8) above, and such admission may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises or assignee or
encumbrancer of Tenant's interest under this Lease.
29. Transfer of Landlord's Interest. This Lease is assignable by Landlord
without the consent of Tenant. In the event of any transfer or transfers
of Landlord's interest in the Premises or the Building, other than a
transfer for security purposes only, the transferor will 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 Tenant agrees to
attorn to the transferee.
30. Condemnation. 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 will automatically terminate as of the date
Tenant is required to vacate the Premises and all rents will be paid to
that date. In case of a taking of a part of the Premises, or a portion of
the Building not required for the reasonable use of the Premises, this
Lease will continue in full force and effect and the rent will 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 possession of
such portion is delivered to the condemning authority. Landlord reserves
all rights to receive monetary damages to the Premises for any 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 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, provided that
such damages may be claimed only if they are
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awarded separately in the eminent domain proceedings, and not as a part of
the damages recoverable by Landlord.
31. Advertising. Tenant shall not inscribe any inscription, or post, place or
in any manner display any sign, notice, picture, placard or poster, or any
advertising matter whatsoever, anywhere in or about the Premises or the
Building at places visible (either directly or indirectly as an outline or
shadow on a glass pane) from anywhere outside the Premises without first
obtaining Landlord's written consent thereto. Any such consent by Landlord
shall be upon the understanding and condition that Tenant, at its sole cost
and expense, will remove the same at the expiration or sooner termination
of this Lease and will repair any damage to the Premises or the Building
caused thereby. Notwithstanding the foregoing, Landlord hereby grants
Tenant the non-exclusive right to install signs on the monument sign
adjacent to the Building. Tenant's right to do so is subject to City of
Bellevue regulations, the installation being completed in a good and
workmanlike manner, and Landlord's review and approval of the design and
location of the signs, which approval shall not be unreasonably withheld.
The design, construction, installation and removal of all signs is at the
sole cost and expense of Tenant.
32. Parking. Subject to the provisions of paragraph 1(i) above, parking shall
at all times be governed by rules and regulations established by Landlord,
which may be changed with reasonable discretion from time to time.
From 7:00 a.m. to 5:00 p.m., Monday through Friday, except for legal
holidays, and at no additional charge during the initial term (except for
the payment of any parking tax subsequently imposed by a governmental
authority), Landlord shall provide parking at a ratio of four (4)
spaces/one thousand (1000) RSF on a non-exclusive basis in the surface
parking lots.
Landlord represents and warrants to Tenant that Landlord is unable to
provide parking to Tenant on an exclusive basis at any time during the
Lease term, except as specifically provided in the preceding paragraph. If
Tenant experiences a problem with the parking at the Building such that
Tenant's allotted parking spaces are unavailable to it on a consistent
basis, and so informs Landlord, then Landlord shall take such measures,
such as monitoring or valet parking, as are reasonably necessary to correct
the problem, and such expenses shall be charged to Tenant as additional
rent. Tenant acknowledges that the parking lot is used and may be used
jointly by other tenants under a parking access agreement managed by
Landlord.
33. Execution of Lease by Landlord. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for the Premises. This document will become
effective and binding only upon approval of this Lease by the party holding
the mortgage or deed of trust encumbering the Building and the Land, and
upon the full execution of this Lease by Landlord and its delivery to
Tenant. No act or omission of any employee or agent of Landlord or of
Landlord's broker shall alter, change or modify any of the provisions
hereof.
34. Landlord's Liability. Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the
part of Landlord are made and intended not as personal covenants,
undertakings and agreements or for the purpose of binding Landlord
personally or the assets of Landlord except Landlord's interest in the
Premises and the Building, but are made and intended for the purpose of
binding only Landlord's interest in the Premises and the Building. No
personal liability or personal responsibility is assumed by, nor shall at
anytime be asserted or enforceable against Landlord or its partners and
their respective heirs, legal representatives, successors and assigns on
account of this Lease or on account of any covenant, undertaking or
agreement of Landlord contained in this Lease.
35. Broker. Tenant was represented in this lease transaction by Tim Chin/
Colliers and Landlord was represented in this lease transaction by Jeff
Jochums/ Colliers. No other finder or broker participated in this lease
transaction or is entitled to compensation on account of this lease
transaction.
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(a) Representation and Indemnity Regarding Brokers. Tenant and Landlord
each represent and warrant to the other that they have not engaged any
broker, finder or other person who would be entitled to any commission
or fee in respect of the negotiation, execution or delivery of this
Lease except for those brokers identified in paragraph 35 hereof, and
each shall indemnify and hold harmless the other against any loss,
cost, liability or expense incurred by the other as a result of any
claim asserted by any other broker, finder or other person on the
basis of any arrangements or agreements made or alleged to have been
made by or on behalf of Tenant or Landlord.
36. Corporate Authority. Where Tenant is a corporation, each individual
executing this Lease on behalf of Tenant represents and warrants that he or
she is duly authorized to execute and deliver this Lease on behalf of
Tenant, in accordance with a duly adopted resolution of the Board of
Directors of Tenant. Tenant shall, within thirty (30) days after execution
of this Lease, deliver to Landlord a certified copy of a resolution of the
Board of Directors of Tenant authorizing or ratifying the execution of this
Lease.
37. Additional Landlord Warranties.
(a) Quiet Enjoyment. Landlord warrants and covenants that, during all
terms of this Lease, Tenant will have the exclusive right to
possession and quiet enjoyment of the Premises and will have, hold and
enjoy the Premises peacefully and quietly, without any manner of let,
suit, trouble or hindrance so long as Tenant complies with all
material provisions of this Lease.
(b) Hazardous Wastes. Landlord represents and warrants, to the best of
its knowledge without special inquiry, that no hazardous wastes,
hazardous substances, dangerous wastes or other contaminants, as
defined in applicable federal, state and/or local statutes or
regulations ("Contaminants") are being or have in the past been
generated, treated or disposed on or at the Premises or the Building.
Landlord shall not use, generate, treat, store or dispose of any
Contaminants on the Premises or in the Building except in accordance
with any law, ordinance, rule or regulation of any governmental
authority having jurisdiction over the Premises or the Building. If
Landlord breaches the obligations stated in the preceding sentence, or
if the presence of Hazardous Material on the Premises or Building
caused by Landlord results in contamination of the Premises or
Building, then Landlord shall indemnify, defend and hold Tenant
harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation,
diminution in value of the Premises, damages for the loss or
restriction on the use of Tenant's rentable or usable space, and sums
paid in settlement of claims, attorneys' fees, consultant fees and
expert fees) which arise during or after the lease term as a result of
Contamination. Any generation, treatment, storage, release or
disposal of Contaminants by Tenant, its employees or agents shall not
fall within the scope of the foregoing indemnity. The foregoing
representations and warranties contained in this paragraph shall not
be binding upon any mortgagee, and such mortgagee's successors and
assigns, who holds a mortgage or deed of trust encumbering the Land
and who succeeds to the interest of Landlord under this Lease as a
result of foreclosure or otherwise, or upon any successor in interest
to Landlord who purchases the interest of Landlord in the Land at a
foreclosure sale conducted for the benefit of such mortgagee.
38. General Provisions.
(a) Section Headings. The title of 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) Governing Law. This Lease shall be construed and governed by the laws
of the State of Washington.
17
<PAGE>
(c) Binding on Successors. All of the covenants, agreements, terms and
conditions contained in this Lease shall apply to and be binding upon
Landlord and Tenant and their respective heirs, executors,
administrators, successors and assigns.
(d) Entire Agreement. This Lease contains all covenants and agreements
between Landlord and Tenant relating in any manner to the rent, use
and occupancy of the Premises and 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. Any provision of this Lease which shall prove to be
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.
(e) Name of Building. Landlord reserves the right to name and re-name the
Building from time to time, and to install signs accordingly, without
compensation, but only with prior written notice to Tenant.
(f) Invalidity of Provisions. The invalidity of all or any part of any
section of this Lease will not render invalid the remainder of this
Lease or the remainder of such section. If any provision of this
Lease is so broad as to be unenforceable, such provision will be
interpreted to be only so broad as is enforceable.
(g) Exhibits. The following exhibits are made a part of this Lease:
Exhibit A - Legal Description of Land
Exhibit B - Parking Plan
Exhibit C - Plan of the Premises
Exhibit D - Tenant Improvements
Exhibit E - Rules & Regulations
Exhibit F - Certificate of Corporate Resolution of Tenant
Exhibit G - Option to Extend
18
<PAGE>
IN WITNESS WHEREOF, this Lease has been executed the day and year first
above set forth.
LANDLORD:
STERLING REALTY ORGANIZATION CO.,
a Washington corporation
By: /s/ David Schooler
------------------------------
David Schooler, President
TENANT:
INTERACTIVE OBJECTS, INC.
a Washington corporation
By: /s/ Steven G. Wollach
------------------------------
Steven G. Wollach, President & CEO
19
<PAGE>
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 13th day of October, 1999, before me, the
undersigned, a notary public in and for the State of Washington, duly
commissioned and sworn, personally appeared DAVID SCHOOLER, to me known to be
the President of STERLING REALTY ORGANIZATION CO., a Washington corporation, the
corporation that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that
said individual was authorized to execute said instrument.
WITNESS my hand and official seal the day and year in this certificate first
above written.
/s/ Donna M. Riggers
-------------------------------------
(Signature)
Donna M. Riggers
----------------------------------
(Please print name legibly)
NOTARY PUBLIC in and for the
State of Washington, residing
at Bothell, WA
My commission expires 9-18-01
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 13th day of October, 1999, before me, the
undersigned, a notary public in and for the State of Washington, duly
commissioned and sworn, personally appeared Stephen G. Wollach, to me known to
be the President of Interactive Objects, Inc., the person 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 he was authorized to execute said
instrument.
WITNESS my hand and official seal the day and year in this certificate
first above written.
/s/ Edward P. Winskill
-------------------------------------
(Signature)
Edward P. Winskill
----------------------------------
(Please print name legibly)
NOTARY PUBLIC in and for the
State of Washington, residing
at Seattle
My commission expires 4/19/03
20
<PAGE>
EXHIBIT A
TO
LEASE AGREEMENT
Legal Description of Land
Parcel C
All that certain real property situate in the County of King, State of
Washington, being a portion of the south half of the northwest quarter of the
southeast quarter of Section 9, Township 24 North, Range 5 East, W.M., in King
County, Washington, and being more particularly described as follows:
Beginning at the southwesterly corner of the southeast quarter of the northwest
quarter of the southeast quarter of Section 9, Township 24 North, Range 5 East,
W.M., in King County, Washington;
thence from said Point of Beginning along the south line of the southwest
quarter of the northwest quarter of the southeast quarter of said Section 9
north 87 degrees 22'54" west 32.98 feet;
thence north 01 degree 08'52" east 166.07 feet;
thence north 33 degrees 59'03" east 61.63 feet;
thence south 87 degrees 22'23" east 274.45 feet;
thence south 02 degrees 37'06" west 218.60 feet to a point on the south line of
said south half of the northwest quarter of the southeast quarter of Section 9;
thence along last said south line north 87 degrees 22'54" west 269.29 feet to
the True Point of Beginning.
1
<PAGE>
EXHIBIT A-1
TO
LEASE AGREEMENT
Legal Description of Project
All that certain real property situate in the County of King, State of
Washington, being a portion of the south half of the northwest quarter of the
southeast quarter of Section 9, Township 24 North, Range 5 East, W.M., in King
County, Washington, and being more particularly described as follows:
Beginning at the southwesterly corner of the southeast quarter of the northwest
quarter of the southeast quarter of Section 9, Township 24 North, Range 5 East,
W.M., in King County, Washington;
thence from said Point of Beginning along the south line of the southwest
quarter of the northwest quarter of the southeast quarter of said Section 9
north 87 degrees 22'54" west 32.98 feet;
thence north 01 degree 08'52" east 166.07 feet;
thence north 33 degrees 59'03" east 61.63 feet;
thence south 87 degrees 22'23" east 274.45 feet;
thence south 02 degrees 37'06" west 218.60 feet to a point on the south line of
said south half of the northwest quarter of the southeast quarter of Section 9;
thence along last said south line north 87 degrees 22'54" west 269.29 feet to
the True Point of Beginning.
(ALSO KNOWN as Parcel C of boundary line adjustment recorded under Recording
Number 9101239007.)
TOGETHER WITH a non-exclusive reciprocal easement for common parking and access
as contained in instrument recorded under Recording Number 8903140587.
TOGETHER WITH a non-exclusive easement for ingress, egress and utilities as
contained in instrument recorded under Recording Number 8506270469 and as
amended by instrument recorded under Recording Number 9101100008.
1
<PAGE>
EXHIBIT B
TO
LEASE AGREEMENT
Parking Plan
[see attached]
1
<PAGE>
EXHIBIT C
TO
LEASE AGREEMENT
Plan of the Premises
[see attached]
i
<PAGE>
EXHIBIT D
TO
LEASE AGREEMENT
Tenant Improvements
1. Landlord will provide building standard paint and carpet of Tenant's color
choice to the premises.
2. Landlord will provide the buildout of two standard size offices and up to 6
power poles in the open areas and outlets as shown on the approved plan.
Tenant will provide data and telcom outlets and lines.
i
<PAGE>
EXHIBIT E
TO
LEASE AGREEMENT
Rules & Regulations
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building without
the prior written consent of the Landlord. Landlord shall have the right
to remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on
doors and walls shall be printed, painted, affixed or inscribed at the
expense of Tenant by a person chosen by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shadow, screens or
hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, Tenant shall immediately
discontinue such use. No awning shall be permitted on any part of the
Premises. Tenant shall not place anything against or near glass partitions
or doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalk, halls, passages, exits, entrances,
elevators, escalators, or stairways of the Building. The halls, passages,
exits, entrances, shopping malls, elevators, escalators and stairways are
not open to the general public. Landlord shall in all cases retain the
right to control and prevent access thereto of all persons whose presence
in the judgment of Landlord would be prejudicial to the safety, character,
reputation and interest of the Building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course or its
business, unless such persons are engaged in illegal activities. No tenant
and no employee or invitee of any tenant shall go upon the roof of the
Building.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises. Landlord shall not in any way be responsible to any Tenant
for any loss of property on the Premises, however occurring, or for any
damage to Tenant's property by the janitor or any other employee or any
other person.
6. Landlord will furnish Tenant, free of charge, two keys to each door lock in
the Premises. Landlord may make a reasonable charge for any additional
keys. Tenant shall not make or have made additional keys, and Tenant shall
not alter any lock or install a new additional lock or bolt on any door of
the Premises. If Tenant installs a separate security system, Tenant shall
provide Landlord with card keys or passwords for emergency access. Tenant,
upon the termination of its tenancy, shall deliver to Landlord the keys of
all doors which have been furnished to Tenant, and in the event of any keys
so furnished, shall pay Landlord therefore.
7. If Tenant requires telegraphic, telephonic, security system or similar
services, it shall first obtain, and comply with, Landlord's instructions
for their installation.
1
<PAGE>
8. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot for which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the
weight, size and position of all equipment, materials, furniture or other
property brought into the Building. Heavy objects shall, if considered
necessary by Landlord, stand on such platforms as determined by Landlord to
be necessary to properly distribute the weight. Business machines and
mechanical equipment belonging to Tenant, which cause noise or vibration
that may be transmitted to the structure of the Building or to any space
therein or to any other tenant in the Building, shall be placed and
maintained by Tenant, at Tenant's expenses, on vibration eliminators or
other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building must be
acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all
damage done to the Building by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
9. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals.
10. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord.
11. Tenant shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air-conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice,
and shall refrain from attempting to adjust controls.
12. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
13. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee
in charge of the Building and has a pass or is properly identified. Tenant
shall be responsible for all persons for whom it requests passes and shall
be liable to Landlord for all acts of such persons. Landlord shall not be
liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. Landlord reserves the right to
prevent access to the Building in case of invasion, mob, riot, public
excitement or other commotion by closing the doors or by other appropriate
action.
14. Tenant shall close and lock the doors of its Premises and entirely shutoff
all water faucets or other water apparatus, and electricity, gas or air
outlets before Tenant and its employees leave the Premises. Tenant shall
be responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
15. The Building is a no-smoking building. Tenant, its employees, agents,
guests, invitees, and licensees are prohibited at all times from smoking
within the Building, the Premises, the Common Area or the Land, except in
designated smoking areas outside the Building and the Premises, which shall
be identified by Landlord from time to time.
2
<PAGE>
16. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expenses of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose employees
or invitees, shall have caused it.
17. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided or in Tenant's Lease.
18. Tenant shall not install any radio or television antenna, telecom
equipment, loudspeaker or other device on the roof or exterior walls of the
Building. Tenant shall not interfere with radio or television broadcasting
or reception from or in the Building or elsewhere.
19. Tenant shall not mark, drive nails, screws or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof.
Landlord reserves the right to direct electricians as to where and how
telephone and telegraph wires are to be introduced to the Premises. Tenant
shall not cut or bore holes for wires. Tenant shall not affix any floor
covering to the floor of the premises in any manner except as approved by
Landlord. Tenant shall repair any damage resulting from noncompliance with
this rule, except that Tenant shall be permitted to use nails, screws, or
other hardware necessary to hang artwork, display boards and other standard
office fixtures.
20. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building are prohibited, and each tenant
shall cooperate to prevent the same.
21. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
22. Tenant shall store all trash and garbage within its Premises. Tenant shall
not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord. Disposal of any large
debris will be at Tenant's expense.
23. The Premises shall not be used for the storage of merchandise hold for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper or immoral or objectionable
purpose.
24. Microwave cooking is permitted on the Premises, as is use by Tenant of
Underwriters' Laboratory approved equipment for brewing coffee, tea, hot
chocolate and similar beverages, provided that such equipment is used in
accordance with all applicable federal, state, county and city laws, codes,
ordinances, rules and regulations. Tenant is not allowed to use space
heaters in the Premises. All appliance outlets shall be equipped and
operated by mechanical timers.
25. Tenant shall not use in any space or in the public halls of the Building
any hand truck except those equipped with rubber tires and side guards or
such other material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind into the Building.
3
<PAGE>
26. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
28. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery, and pilferage, which includes keeping doors locked and
other means of entry into the Premises closed.
29. The requirements of Tenant will be attended to only upon appropriate
application to the office of the building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and
no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
30. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building. Tenant shall
not leave vehicles in the Building parking areas overnight nor park any
vehicles in the Building parking areas other than automobiles, motorcycles,
motor driven or non-motor driven bicycles or four-wheeled trucks.
31. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
of any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Building.
32. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building.
33. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
34. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
4
<PAGE>
EXHIBIT F
TO
LEASE AGREEMENT
Certificate of Corporate Resolution of Tenant
I, ___________________, hereby certify that I am the duly elected,
qualified, and acting Secretary of ____________________________, a corporation
duly organized under the laws of the state of Washington (the "Corporation"). I
further certify that on the _____ day of ___________, 1999, the following
resolution was duly adopted by the directors of the Corporation, and that the
resolution is now in full force and effect and has not been altered, amended,
modified or repealed:
RESOLVED, that ____________________, the ________________ of the
Corporation, or ______________, the ______________ of the Corporation, are
hereby each individually authorized to sign the Lease Agreement between the
Corporation and Sterling Realty Organization Co. (the "Landlord") dated
_________________ with respect to Premises identified as Suite ______ of
the building located at ____________, Bellevue, Washington, and after its
execution and delivery by the Corporation and the Landlord, the Lease will
be a binding and enforceable obligation of the Corporation in accordance
with its terms.
I hereby certify that: (1) the above Resolution was duly passed at a
special and/or general meeting of the Board of Directors of the Corporation held
on ___________________ at which were present and voting a majority of the
directors; (2) the above Resolution has been duly recorded in the minute book of
the Corporation; (3) there are no provisions in the Articles of Incorporation or
Bylaws of the Corporation that would impair or modify the effectiveness of the
above Resolution; (4) the Resolution has not been altered or amended subsequent
to its adoption; and (5) said Resolution is now in full force and effect.
WITNESS MY HAND this _______ day of _____________, 1999.
________________________________
By: ____________________________
________________, Secretary
5
<PAGE>
EXHIBIT G
TO
LEASE AGREEMENT
Option to Extend
Landlord and Tenant hereby agree the Lease Term may be extended for a period of
five (5) years (the "Extended Term") at the election of Tenant, exercised by
delivery to Landlord of a written notice delivered not later than one hundred
eighty (180) days and not earlier than two hundred seventy (270) days prior to
the end of the initial Lease Term (the "Option Notice"), so long as (i) Tenant
is not and has never been in default under the terms of this Lease; and (ii)
Tenant has not assigned this Lease, nor sublet the Premises in whole or in part
other than to a parent, subsidiary, or affiliated company. In the event option
to renew is exercised by an affiliate of Tenant, Tenant shall be jointly and
severally liable with the assignee for the payment of rent and the performance
of all terms, covenants, and conditions of this Lease during the option period.
Rent for the Premises at the commencement of any Extended Term shall be
determined in accordance with the following procedure:
(a) Promptly following receipt by Landlord of Tenant's Option Notice, Landlord
and Tenant shall attempt to reach agreement on the initial Rent for the
Extended Term in question, which Rent shall be at the then current fair
market rental value for the Premises. If Landlord and Tenant are able to
agree on the Rent for the Extended Term in question, Landlord and Tenant
shall immediately execute an amendment to this Lease stating the initial
Rent for such Extended Term.
(b) If the parties are unable to agree on the Rent for the Extended Term within
thirty (30) days following Landlord's receipt of the Option Notice, then
each party, at its cost and by giving notice to the other party, shall have
twenty (20) days within which to appoint an MAI certified real estate
appraiser with at least five (5) years' full-time commercial appraisal
experience in Bellevue, Washington, to appraise and set the initial Rent
for such Extended Term in accordance with the then current fair market
rental value for the highest and best use of the Premises. If either party
does not appoint an appraiser within such twenty (20) day period, the
single appraiser appointed shall be the sole appraiser and shall set the
initial Rent for the Extended Term. If two appraisers are appointed by the
parties, as stated in this paragraph, they shall meet promptly and attempt
to set the initial minimum Rent for the Extended Term. If they are unable
to agree within thirty (30) days after the second appraiser has been
appointed, the two appraisers shall elect a third appraiser meeting the
qualifications stated above within twenty (20) days after the last day the
two appraisers are given to set the initial Rent for the Extended Term.
Each of the parties shall bear one-half (1/2) of the cost of appointing the
cost of the third appraiser and of paying the third appraiser's fee. The
third appraiser, however selected, shall be a person who has not previously
acted in any capacity for either party.
(c) Within twenty (20) days after the selection of the third appraiser, a
majority of the appraisers shall set the initial Rent for the Extended
Term. If a majority of the appraisers are unable to set the Rent within a
stipulated period of time, the two closest appraisers shall be added
together and their total divided by two (2); the resulting quotient shall
be the Rent for the Premises during the Extended Term. In no event,
however, shall Rent for the Extended Term be less than the Rent for the
immediately preceding period of the Lease Term.
i
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<PAGE>
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<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 1,977,434
<SECURITIES> 109,543
<RECEIVABLES> 232,698
<ALLOWANCES> 0
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<CURRENT-ASSETS> 2,429,537
<PP&E> 393,016
<DEPRECIATION> 172,136
<TOTAL-ASSETS> 2,829,488
<CURRENT-LIABILITIES> 384,847
<BONDS> 0
0
0
<COMMON> 146,169
<OTHER-SE> 8,537,409
<TOTAL-LIABILITY-AND-EQUITY> 2,829,488
<SALES> 2,669,101
<TOTAL-REVENUES> 883,175
<CGS> 830,007
<TOTAL-COSTS> 830,007
<OTHER-EXPENSES> 0
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<INCOME-PRETAX> 74,631
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