SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB/A
|X| Quarterly Report under Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 for the quarterly period ended December 31, 1997
| | Transition Report under Section 13 or 15(d) of the Securities Exchange Act
of 1934 for the transition period from ______ to ______.
Commission File No.: 0-22848
U.S. Wireless Data, Inc.
(Exact name of registrant as specified in its charter)
Colorado 84-1178691
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(State of incorporation) (IRS Employer Identification No.)
2200 Powell Street, Suite 450
Emeryville, California 94608
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(Address of principal executive offices, including zip code)
(510) 596-2025
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(Registrant's Telephone Number, including area code)
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 ninety days.
Yes _X_ No ___
As of December 31, 1997 there were outstanding 9,221,420 shares of the
Registrant's Common Stock (no par value per share).
Transitional Small Business Disclosure Format
Yes ___ No _X_
<PAGE>
ITEM 6 -- EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits required by Item 601 of Regulation S-B
3.1 Articles of Incorporation, as amended*
4.1 $150,000 Convertible Subordinated Promissory Note
dated June 3, 1997, issued to entrenet Group, LLC.
4.2 1992 Stock Option Plan, as amended **
4.3 Designation of Series A Preferred Stock (Included in
Exhibit 3.1 - Articles of Incorporation, as amended)
10.1 Office Lease with Spieker Properties, L.P.
dated September 12, 1997
10.2 Release and Settlement Agreement with entrenet Group,
LLC effective as of November 1, 1997.
27 Financial Data Schedule*
* Incorporated by reference from the like-numbered and named Exhibit
filed wwith the Company's Quarterly Report on Form 10-QSB for the
quarter ended December 31, 1997, filed with the SEC on February 23,
1998.
** Incorporated by reference from the Company's Revised Definitive Proxy
Statement for the 1997 Annual Meeting of Shareholders, filed with the
SEC on January 14, 1998, in which the Exhibit is included as Exhibit C.
b) Reports on Form 8-K
On December 17, 1997, the Company filed a report on Form 8-K
reporting an event of November 14, 1997. The report contained
disclosures under Item 5 - Other Events, relating to the closing
of the Company's Debenture offering on December 10, 1997, and
claims by certain holders of convertible notes.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
U.S. WIRELESS DATA, INC.
Registrant
Date: February 20, 1998 By: \s\ Evon Kelly
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Chief Executive Officer
February 20, 1998 By: \s\ Robert E. Robichaud
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Chief Financial Officer
EXHIBIT 4.1
THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY
STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED ASSIGNED OR HYPOTHECATED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING THIS
NOTE AND/OR SUCH SECURITIES, OR THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR
THE HOLDER OF THE NOTE AND/OR SUCH SECURITIES SATISFACTORY TO THE CORPORATION
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND THE
QUALIFICATION REQUIREMENTS UNDER STATE LAW.
U.S. WIRELESS DATA, INC.
10%, UNSECURED and NONASSIGNABLE,
CONVERTIBLE SUBORDINATED PROMISSORY NOTE
DUE JUNE 2, 1998
$150,000 June 3, 1997
1) Obligation. FOR VALUE RECEIVED, U.S. Wireless Data, Inc, a Colorado
corporation (hereinafter called the "Corporation"), hereby promises to pay
entrenet Group LLC (hereinafter called the "Holder") the principal sum of
One Hundred Fifty Thousand Dollars ($150,000) payable in one payment of
principal and all accrued interest due on June 2, 1998 (the "Payment
Date"), unless earlier converted pursuant to the terms of this Debenture.
Interest shall accrue on this Debenture at the rate of ten percent (10%)
per annum (based on a 360-day year, 30-day month) until payment in full of
principal.
2) Medium of Payment. The principal and interest on this promissory note (this
"Note") are payable in lawful money of the United States of America at the
Holder's address set forth below, or at such other address as the Holder
hereof may from time to time designate to the Corporation in writing.
3) Prepayment. The Corporation may not prepay this Note in whole or in part at
any time prior to due date of this Note.
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Initial: entrenet /s/ JB Company /s/ EK
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4) Subordination.
a. Senior Indebtedness. The payment of principal and interest on this
Note is subordinated to the prior payment in full of all Senior
Indebtedness of the Corporation, whether outstanding on this date or
thereafter. Senior Indebtedness is defined as the principal of, and premium
and interest on, indebtedness of the Corporation for money borrowed from,
or the payment of which has been guaranteed to, persons, firms or
corporations which engage in lending money, including, but without
limitation, banks, trust and charitable trusts, pension trusts,
governmental lenders and other investing organizations, evidenced by notes
or similar obligations.
b. Accelerated Maturity. If this Note is declared due and payable
before its express maturity because of the occurrence of an event of
default as defined in this Note, the Holder will be entitled to payment
only after there is first paid in full on the then outstanding Senior
Indebtedness all principal and interest then due and payable by
acceleration or otherwise, or after payment shall be provided for in a
manner satisfactory to the holders of such Senior Indebtedness.
c. No Reduction in Corporation's Obligations. No present or future
holder of Senior Indebtedness will be prejudiced by the Holder's right to
enforce this Note by any act or failure to act on the part of the
Corporation. The provisions of this Section 4 are solely for the purpose of
defining the relative rights of the holders of Senior Indebtedness on the
one hand and the Holder of this Note on the other hand, and nothing in this
Note will impair as between the Corporation and the Holder, the
Corporation's obligation to pay to the Holder the principal and interest in
accordance with its terms, nor will anything in this Note prevent the
Holder from exercising all remedies otherwise permitted by applicable law
upon default hereunder subject only to the rights, if any, under this
Section of holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to the Holder.
5) Conversion.
a. Timing. This Note is convertible into fully paid and nonassessable
shares of the Corporation's Common Stock, at the option of the Holder, at
any time and from time to time thereafter in whole or in part during the
term of this Note. The Corporation agrees to reserve sufficient shares for
issuance during the remaining term of this Note so as to be able to honor
the exercise of the conversion privilege, subject to the Corporations
increase in Common Stock to be presented at the next Shareholders'
Meeting..
b. Conversion Price. The Note shall be convertible into the
Corporation's Common Stock at a price of fifty cents ($0.50) per share. The
Conversion is payable by the cancellation of principal and any accrued
interest on this Note.
c. Notice of Conversion and Rights. In order to exercise the
conversion privilege granted to the Holder of this Note, the Holder will
surrender this Note to the
2
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
Corporation with duly executed Notice of Conversion specifying the portion
of the principal amount and any accrued and unpaid interest of the Note to
be converted. If the Common Stock into which this Note is convertible is to
be issued in a name or names other than that of the Holder, the Notice of
Conversion must bear or be accompanied by proper endorsement or assignment
of this Note. The Common Stock issued upon the conversion of this Note will
not be entitled to any dividend declared upon such stock prior to the date
of the receipt by the Corporation of such Notice of Conversion, and upon
such conversion, the Holder will not be entitled to any interest on this
Note not due and payable at or prior to the date such Notice of Conversion
is received by the Corporation.
d. Surrender and Cancellation of Note. This Note will be deemed to have
been surrendered for conversion and converted at the close of business on
the date on which it is received by the Corporation or a designated agent
of the Corporation with the duly executed Notice of Conversion, and on such
receipt, the Corporation will promptly issue and deliver to the person or
persons entitled a certificate or certificates of its Common Stock
evidencing the number of shares into which this Note will have been
converted, together with a new Note representing the unconverted and
unredeemed portion, if any, of the Note so converted. The new Note shall be
payable to the Holder and dated as of the date to which interest has been
paid on the converted Note. Such new Note shall otherwise be identical to
the converted Note. The Corporation will then cancel this Note. Only whole
shares of the Corporation's Common Stock will be issued on any conversion.
In the event that Holder of this Note is entitled to a faction of a share
of Common Stock, the Corporation shall instead pay such holder the cash
equivalent of that fractional share, computed by multiplying the fraction
by the applicable Conversion Price.
6) The Corporation's Obligation to Register. If the Corporation at any time
proposes to initiate a registration of its securities under the Securities
Act of 1933, as amended (the "Securities Act") and thereafter to register
any of its securities under the Securities Act (other than a registration
effected solely to implement an employee benefit plan, a transaction to
which Rule 145 of the Commission is applicable or any other form or type of
registration in which Registrable Securities cannot be included pursuant to
Commission rule or practice), it will give written notice to Holder of this
Note of its intention to do so. If such registration is proposed to be on a
form which permits inclusion of the Stock underlying the conversion of this
Note, upon the written request from any Holder within 20 days after
transmittal by the Corporation to the Holder of such notice, the
Corporation will, subject to the limits contained in this Section, use its
best efforts to cause all such Stock underlying the conversion of this Note
to be registered under the Securities Act and qualified for sale under any
relevant state blue sky law, all to the extent requisite to permit such
sale or other disposition by Holder of the Stock so registered.
Notwithstanding any other provision of this Section, if the underwriter
managing such registration notifies the Holder in writing that market or
economic conditions limit the amount of securities which may reasonably be
expected to be sold, Holder will at a minimum be allowed to register their
Stock pro rata based on the ratio of the total number of shares of Stock to
be offered for sale by the Corporation to the total shares outstanding just
3
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
prior to the offering. The Corporation and entrenet will enter into a
customary registration agreement setting forth the terms of such
registration at the time the Corporation proposes to register any shares
for entrenet.
7) Default.
a. Events of Default. Without notice, except as expressly provided
herein, the following will be deemed to be events of default:
i. Covenants. Failure on the part of the Corporation to
observe or perform any of the covenants or agreements on the part
of the Corporation contained in this Note after (A) written notice
of such failure, requiring the Corporation to remedy the same, has
been given to the Corporation by the Holder, and (B) such failure
has continued without remedy for a period of thirty days; or
ii. Receivership. The entry of a decree or order of a court
having jurisdiction in the matter for the appointment of a
receiver and such decree or order has continued in force
undischarged or unstayed for a period of one hundred twenty days;
or
iii.Bankruptcy. The Corporation institutes proceedings to be
adjudged a voluntary bankrupt, or consents to the filing of
bankruptcy proceedings against it, or files a petition or answer
or consent seeking reorganization under the National Bankruptcy
Act or any other similar or applicable federal or state law, or
consents to the filing of any such petition, or consents to the
appointment of a receiver, liquidator, or trustee in bankruptcy,
or makes a general assignment for the benefit of creditors, or
admits in writing its inability to pay its debts generally as they
become due; or
iv. Attachment. Any judgment, writ, or warrant of attachment
or of any similar process in an amount in excess of $100,000 is
entered or filed against the Corporation or against any of its
property or assets and remains unpaid, unvacated, unbonded or
unstayed for a period of 120 days.
b. Acceleration of Maturity. If any one or more of the foregoing events
of default occurs, the Holder, by notice in writing to the Corporation, may
declare the principal of and all accrued interest on this Note then
outstanding immediately due and payable without further notice or demand;
provided, however, that at any time after such declaration the same may be
rescinded and such event of default may be waived by the Holder by written
notice to the Corporation.
c. Payment on Acceleration. Upon any such acceleration of the maturity
of this Note, the Corporation will within 90 days pay to the Holder the
entire principal balance unpaid on this Note, together with accrued
interest thereon to the date of such payment.
d. Failure to Pay. If the Corporation fails to make payment to the
Holder as provided in the preceding Subsection (Payment on Acceleration),
the Holder will be entitled and empowered to take such measures as may be
appropriate to enforce the
4
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
Corporation's obligations under this Note, by judicial proceedings or
otherwise. If suit is brought to enforce payment of this Note, the
Corporation promises to pay reasonable attorneys' fees to be fixed by the
Court.
8) Anti-dilution. If the Corporation elects to combine or subdivide its Common
Stock, the ratio used to determine the number of new shares to be issued in
exchange for the existing shares will be applied to the number of shares
into which this Note may be converted as provided in this Note, and the
conversion price will be appropriately adjusted.
9) No Assignment. This Note is unsecured, non-transferable and non-assignable.
Holder may not sell, assign, pledge, hypothecate or otherwise transfer this
Note
10) Notices. Any communication or notices may be delivered or mailed to the
offices of the Corporation at its principal place of business and to the
Holder at the Holder's address set forth below, or to such other addresses
as the Corporation, or Holder, may designate in writing from time to time.
11) Applicable Law. This Note shall be governed by and construed in accordance
with the laws of the State of California applicable to contracts between
California residents entered into and so be performed entirely within the
State of California.
Executed as of June 3,1997
By: /s/ Evon Kelly
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Evon Kelly
Chief Executive Officer
5
Initial: entrenet /s/ JB Company /s/ EK
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The name and address of the registered Holder of this Note is:
entrenet Group LLC
5213 El Mercado Parkway, Suite D
Santa Rosa, California 95403
EXHIBIT 10.1
OFFICE LEASE
SPIEKER PROPERTIES, L.P.,
A California limited partnership
Landlord
and
U.S. WIRELESS DATA, INC.
A Colorado corporation
Tenant
<PAGE>
TABLE OF CONTENTS
Page
1. PARTIES 1
1.1 Parties 1
1.2 Basic Lease Provisions 1
1.3 Defined Terms 1
2. PREMISES 2
2.1 Demise of Premises 2
2.2 Condition of Premises 2
2.3 Common Areas 2
2.4 Tenant Parking 2
3. TERM 2
3.1 Period 2
3.2 Term Commencement 2
3.3 Delayed Occupancy 3
3.4 Holding Over 3
4. BASE RENT 3
4.1 Base Rent 3
4.2 Security Deposit 4
4.3 Operating Costs 4
4.4 Taxes Payable By Tenant 5
4.5 Late Charges and Interest 5
5. USES 5
5.1 Authorized 5
5.2 Suitability 5
5.3 Insurance 6
5.4 Laws 6
5.5 Nuisance 6
5.6 Rules and Regulations 6
6. SERVICES AND UTILITIES 6
6.1 Basic Services by Landlord 6
6.2 Additional Heating and Air Conditioning 7
6.3 Special Apparatus 7
6.4 Interruption In Service 7
6.5 Tenant's Other Utilities 8
7. TENANT'S ALTERATION 8
7.1 Landlord's Consent Required 8
7.2 Removal of Tenant's Alterations 8
7.3 Protection Against Liens 8
8. MAINTENANCE AND REPAIRS 9
8.1 Landlord's Obligations 9
8.2 Tenant's Obligations 9
9. INDEMNITY AND EXEMPTIONS OF LANDLORD 10
9.1 Indemnity 10
9.2 Exemption of Landlord From Liability 10
10. INSURANCE 10
10.1 Tenant's Insurance 10
10.2 Landlord's Insurance 11
10.3 Subrogation Waiver 12
11. ASSIGNMENT AND SUBLETTING 12
11.1 Landlord's Consent Required 12
11.2 Tenant's Application 12
11.3 Required Provisions 12
11.4 Bonus Rent 12
11.5 Fees for Review 13
11.6 No release of Tenant 13
11.7 Assumption of Obligations 13
11.8 Deemed Transfers 13
11.9 Landlord's Option to Recapture 13
12. SUBORDINATION AND ATTORNMENT 14
12.1 Subordination 14
12.2 Attornment 14
12.3 Nonmaterial Amendments 14
13. DEFAULT BY TENANT 15
13.1 Acts Constituting Default 15
13.2 Landlord's Remedies 15
14. DEFAULT BY LANDLORD 16
14.1 Existence of Default 16
14.2 Mortgagee's Right To Cure 16
14.3 Judgement Against Landlord 16
15. CONDEMNATION 16
15.1 Termination Due To Taking 16
15.2 No Termination Due To Taking 16
15.3 Award For Taking 17
16. DAMAGE AND DESTRUCTION 17
16.1 Partial Damage - Insured 17
16.2 Partial Damage - Uninsured 17
16.3 Total Destruction 17
16.4 Landlord's Obligations 17
16.5 Waiver by Tenant 18
17. DEFINTIONS 18
17.1 "Base Rent" 18
17.2 "Base Year" 18
17.3 "Basic Lease Provisions" 18
17.4 "Bonus Rent" 18
17.5 "Building" 18
17.6 "Commencement Date" 18
17.7 "Common Areas" 18
17.8 "Environmental Damages" 18
17.9 "Environmental Requirements" 19
17.10 "Expiration Date" 19
17.11 "Hazardous Materials" 19
17.12 "Increased Operating Costs" 19
17.13 "Landlord's Work" 19
17.14 "Lease Date" 19
17.15 "Mortgage" 20
17.16 "Office Use" 20
17.17 "Operating Costs" 20
17.18 "Overdue Rate" 22
17.19 "Parking Charge" 22
17.20 "Parking Facilities" 22
17.21 "Premises" 22
17.22 "Rules and Regulations" 22
17.23 "Security Deposit" 22
17.24 "Scope of Work" 22
17.25 "Subsequent Year" 22
17.26 "Substantial Completion" 22
17.27 "Taking" 23
17.28 "Tenant Parking" 23
17.29 "Tenant's Share" 23
17.30 "Term" 23
18. MISCELLANEOUS PROVISIONS 23
18.1 Estoppel Certificates 23
18.2 Surrender of Premises 23
18.3 Light and Air 23
18.4 Waiver 24
18.5 Attorneys' Fees 24
18.6 Notices 24
18.7 Merger 24
18.8 Substituted Premises 24
18.9 Headings 24
18.10 Time and Applicable Law 25
18.11 Successors And Assigns 25
18.12 Entry by Landlord 25
18.13 Entire Agreement 25
18.14 Severability 25
18.15 Signs 25
18.16 Execution by Landlord 26
18.17 Brokers 26
18.18 Name of Building 26
18.19 Nonrecordability Of Lease 26
18.20 Construction 26
18.21 Inability To Perform 26
18.22 Authority 26
18.23 Quiet Enjoyment 27
19. RIGHT TO TERMINATE FOR LARGER PREMISES 27
SIGNATURES 27
<PAGE>
WATERGATE OFFICE LEASE
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1. PARTIES: BASIC LEASE PROVISIONS; DEFINED TERMS
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1.1 Parties. This Watergate Office Lease ("Lease") is entered into in
the City of Emeryville, County of Alameda, State of California, between Spieker
Properties, L.P., a California limited partnership ("Landlord"), and U.S.
Wireless Data, Inc., a Colorado Corporation ("Tenant").
1.2 Basic Lease Provisions. The following Basic Lease Provisions
constitute an integral part of this Lease, and each reference in this Lease to
the Basic Lease Provisions shall mean the provisions set forth in this
Paragraph 1.2. Section references in this Paragraph 1.2 are to the section in
which the particular Basic Lease Provision is first discussed. In the event of
any conflict between the Basic Lease Provisions and the remainder of the Lease,
the latter shall control.
Lease Date: 9/12/97
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Address of Landlord: 2200 Powell Street
Suite 325
Emeryville, CA 94608
Address of Tenant: 2200 Powell Street
Suite 450
Emeryville, CA 94608
Section 2: Premises: Suite 450
Building: Tower II
2200 Powell Street
Emeryville, CA 94608
Premises Rentable Area: 4,850 square feet
Premises Useable Area: 4,181 square feet
Building Rentable Area: 229,405 square feet
Tenant Parking: 12 permits
Parking Charge: $42.00 per permit
Section 3: Term: 5 years
Commencement Date: October 1, 1997
Expiration Date: September 30, 2002
Section 4: Base Rent: To be stepped as follows:
10/01/97 - 9/30/98 $9,942.50 per month
10/01/98 - 9/30/99 $10,330.50 per month
10/01/99 - 9/30/00 $10,767.00 per month
10/01/00 - 9/30/01 $11,203.50 per month
10/01/01 - 9/30/02 $11,640.00 per month
Security Deposit: $11,640.00
Base Year: 1997
Tenant's Share: 2.11%
1.3 Defined Terms. Words and phrases which are capitalized in this
Lease (other than words which are capitalized solely to denote the
beginning of sentences) are defined terms. The definitions of such
words and phrases are set forth in Section 17 of this Lease.
<PAGE>
2. PREMISES: COMMON AREAS; TENANT PARKING
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2.1 Demise of Premises. On and subject to the terms, covenants and
conditions set forth in this Lease, Landlord demises the Premises to Tenant and
Tenant rents and hires the Premises from Landlord. The usable and rentable area
of the Premises. and the rentable area of the Building, for all purposes under
this Lease are stipulated to be as specified in the Basic Lease Provisions.
Landlord shall not be liable to Tenant, nor shall Tenant have any claim against
Landlord or defense to the enforcement of this Lease if it is determined that
the actual rentable or usable area of the Premises or the rentable area of the
Building differs from that specified in the Basic Lease Provisions.
2.2 Condition of Premises. Except as otherwise expressly provided in a
Scope of Work executed by Landlord and Tenant concurrently with their execution
of this Lease, Tenant shall accept the Premises in an "as is" condition on the
date the Term commences and Landlord shall have no obligation to improve,
alter, remodel or otherwise modify the Premises prior to Tenant's occupancy.
Landlord shall construct or install in the Premises only the improvements
specified in the Scope of Work. The Scope of Work, if any, will be attached as
Exhibit B of this Lease, and Landlord shall use reasonable diligence to cause
the Substantial Completion of Landlord's Work pursuant to the Scope of Work in
a timely manner.
2.3 Common Areas. During the Term, Tenant shall have the nonexclusive
right to use of the Common Areas for their intended and usual purpose. However,
the manner in which the Common Areas are maintained shall be at the sole
reasonable discretion of Landlord and use thereof shall be subject to the Rules
and Regulations. Landlord reserves the right to make alterations, additions or
deletions to, or to change the location of elements of the Common Areas,
Building or Office Complex, and to use the roof, exterior walls and the area
above and beneath the Premises, together with the right to install, use,
maintain and replace equipment, machinery, pipes, conduits and wiring through
the Premises, which serve other parts of the Building or Office Complex, in a
manner and in locations which do not unreasonably interfere with Tenant's use
of or access to the Premises.
2.4 Tenant Parking. Tenant shall have the right to obtain the number of
parking permits designated as Tenant Parking in the Basic Lease Provisions and
each such permit shall authorize Tenant or its employees to park one passenger
automobile in the Parking Facilities. Issuance of such parking permits shall be
subject to Tenant's payment of the Parking Charge for each permit specified in
the Basic Lease Provisions, which Parking Charge shall be payable on the first
day of each calendar month during the Term and may be increased by Landlord at
any time, and from time to time, during the Term upon not less than thirty (30)
days prior written notice to Tenant. Tenant and its employees shall at all
times observe such terms and conditions and charges as may be established by
Landlord from time to time concerning the operation and use of the Parking
Facilities. Tenant's employees shall not be entitled to park in areas located
in the Parking Facilities designated by Landlord for reserved parking or for
use by visitors to the Office Complex.
3. TERM
----
3.1 Period. The Term shall be for the period specified in the Basic Lease
Provisions. The Term shall commence on the Commencement Date and shall end on
the Expiration Date, as such dates are determined under Paragraph 3.2 below,
unless sooner terminated pursuant to any provision of this Lease.
3.2 Term Commencement. The anticipated Commencement Date and the
corresponding Expiration Date are specified in the Basic Lease
Provisions. However, the actual Commencement Date shall be the
earlier of (a) the date Tenant first occupies any part of the
Premises, or (b) the date of Substantial Completion of the Landlord's
Work or (c) the date established by Landlord in
<PAGE>
the event of a delay by Tenant, as provided in Paragraph 3.3(ii) below; and the
Expiration Date shall be adjusted so that the period between the actual
Commencement Date and the Expiration Date is equal to the Term specified in the
Basic Lease Provisions. If the actual Commencement Date and the Expiration Date
differ from those inserted in the Base Lease Provisions as of the Lease Date,
then promptly after the Commencement Date, Landlord and Tenant shall execute a
written acknowledgment of the Commencement Date and the Expiration Date, and
attach it as Exhibit C to this Lease.
3.3 Delayed Occupancy.
(i) Landlord shall use reasonable diligence to substantially complete
any Landlord's Work on or before the Commencement Date specified in the
Basic Lease Provisions. However, this Lease shall not be void or voidable,
nor shall Landlord or its agents or contractors have any liability to
Tenant, by reason of Landlord's failure to substantially complete
Landlord's Work by the Commencement Date specified in the Basic Lease
Provisions, or by reason of Landlord's failure to deliver possession of the
Premises due to any other cause beyond Landlord's reasonable control, and
postponement of Tenant's rental obligation prior to delivery of possession
of the Premises shall be Tenant's exclusive remedy and in sole satisfaction
of all claims Tenant might otherwise have by reason of Landlord's failure
to deliver the Premises by the Commencement Date specified in the Basic
Lease Provisions.
(ii) Time is of the essence in connection with the delivery to
Landlord of each and every drawing, plan, specification, schedule or other
item required to be given by Tenant to Landlord or to be approved by Tenant
pursuant to the schedule in and provisions of the Scope of Work.
Accordingly, notwithstanding any contrary provision of this Lease, if
Landlord is delayed in the Substantial Completion of Landlord's Work as a
result of (a) Tenant's failure to approve plans, specifications, changes,
cost estimates and other items within the time limits specified therefor in
the Work Letter, or (b) any change by Tenant in said plans, specifications.
or other items after the expiration of such time limits, or (c) any default
by Tenant relating to its obligations hereunder or under the Scope of Work,
then, in any or all such instances and without limitation as to any other
right or remedy available to Landlord, Landlord may under clause (c) of
Paragraph 3.2 determine in its sole reasonable discretion that the actual
Commencement Date is the date that Substantial Completion of Landlord's
Work would have occurred but for such delay.
3.4 Holding Over. Tenant shall not be entitled to remain in possession of
the Premises after the Expiration Date or after earlier termination of this
Lease, except with Landlord's prior written consent. Any such continuance of
possession with Landlord's consent shall constitute a month-to-month tenancy on
all of the terms and conditions of this Lease, except that the Base Rent shall
be 150% of the Base Rent in effect as of the Expiration Date or the earlier
termination date. Any such continuance in possession without Landlord's consent
(or after such consent has been withdrawn upon thirty (30) days' notice to
Tenant) shall constitute an unlawful detention of the Premises; and Tenant
shall indemnify, defend and hold Landlord harmless from all claims, losses or
liability resulting from Landlord's inability to timely deliver possession of
the Premises to any succeeding tenant.
4. BASE RENT; SECURITY DEPOSIT; OPERATING COSTS; TAXES
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4.1 Base Rent. Tenant shall pay to Landlord as monthly Base Rent for the
Premises, in advance, without deduction, setoff, prior notice or demand, the
sum specified in the Basic Lease Provisions. The first month's Base Rent shall
be paid upon Tenant's execution of this Lease, and the Base Rent for each
calendar month thereafter during the Term shall be paid on the first day of
each such calendar month. If the Commencement Date occurs on a day other than
the first day of a calendar month, the Base Rent payable for the first calendar
month of the Term shall be
<PAGE>
prorated on the basis which the number of days of the Term in the first month
bears to the total number of days in such month: and, in such case, Tenant shall
pay such prorated Base Rent to Landlord on the Commencement Date, and the first
month's Base Rent paid upon execution of this Lease shall be credited against
the Base Rent for the second calendar month. If the Term ends on a day other
than the last day of a calendar month, the Base Rent payable for the last
calendar month of the Term shall be prorated on the basis which the number of
days of the Term in the last calendar month bears to the total number of days in
such month.
4.2 Security Deposit.
(1) Upon Tenant's execution of this Lease, Tenant shall deposit with
Landlord the sum specified as the Security Deposit in the Basic Lease
Provisions. which shall be held by Landlord as security for the faithful
performance by Tenant of all of the terms, covenants, and conditions of
this Lease, it being expressly understood and agreed that the Security
Deposit is not an advance deposit for rent or a measure of Landlord's
damages in case of Tenant's default. If at any time Tenant's Base Rent is
increased, the Security Deposit shall also be increased by the same
percentage as the increase in Base Rent and Tenant shall, within ten (10)
days after receipt of notice of such increase in Base Rent, deposit cash
with Landlord in an amount sufficient to effect such adjustment.
(ii) The Security Deposit may be retained, used or applied by Landlord
to remedy any default by Tenant, to repair damage caused by Tenant to any
part of the Premises or the Building, and to clean the Premises upon
expiration or earlier termination of this Lease, as well as to reimburse
Landlord for any amount which Landlord may spend by reason of Tenant's
default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of the
Security Deposit is so used or applied, Tenant shall, within ten (10) days
after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to the full amount required
hereunder, and Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep the Security Deposit separate
from its general funds, and Tenant shall not be entitled to interest on, or
any other compensation for, Landlord's retention of the Security Deposit.
Tenant may not elect to apply any portion of the Security Deposit toward
payment of Base Rent or any other amounts payable by Tenant under this
Lease, although Landlord may elect to do so in the event Tenant is in
default or is insolvent. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant at Tenant's last known address
(or, at Landlord's option, to the last assignee of Tenant's interest
hereunder) within thirty (30) days after the Term has ended and Tenant has
vacated the Premises.
4.3 Operating Costs. Tenant shall pay to Landlord Tenant's Share of the
Increased Operating Costs as follows:
(i) Landlord shall submit to Tenant, before January 1 of each
Subsequent Year, or as soon thereafter as Landlord has sufficient data, a
reasonably detailed statement showing the estimated Increased Operating
Costs for such Subsequent Year, which determination shall be made by
Landlord based upon experience with actual costs and projections. At the
first monthly Base Rent payment date following the submittal of such
statement and at each succeeding monthly rent payment date thereafter
during the Subsequent Year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12th) of the Increased Operating Costs. If Landlord does not
submit said statement to Tenant prior to January 1 of any Subsequent Year,
Tenant shall continue to pay Tenant's Share of the Increased Operating
Costs at the then existing rate until such statement is submitted and,
thereafter, at the monthly Base Rent payment date next following the
submittal of such statement Tenant shall pay Tenant's Share of the
Increased Operating Costs based on the rate set forth in such statement
plus, if the new rate is greater than
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the old rate, the difference accrued from January 1 of such Subsequent
Year. Landlord may revise such estimated Increased Operating Costs at the
end of any calendar quarter.
(ii) On or before March 31 of the second and each succeeding
Subsequent Year or as soon thereafter as Landlord has sufficient data,
Landlord shall submit to Tenant a reasonably detailed statement showing the
actual Building Operating Costs paid or incurred by Landlord during the
previous calendar year. If Tenant's Share of the actual Increased Operating
Costs is less than the amount of Tenant's Share of the estimated Increased
Operating Costs for the previous Subsequent Year theretofore paid by
Tenant, Landlord shall credit such difference against the next increased
Operating Costs payments coming due. If Tenant's Share of the actual
Increased Operating Costs is more than the amount of Tenant's Share of the
estimated Increased Operating Costs for such previous Subsequent Year
theretofore paid by Tenant, Tenant shall pay to Landlord the full amount of
such difference at the monthly Base Rent payment date next following the
submittal of such statement to Tenant.
(iii) If the Expiration Date or the date of earlier termination of
this Lease is other than December 31 the Operating Costs for both the Base
Year and the last Subsequent Year shall be prorated based on what the
number of days in the Term in the last Subsequent Year bears to 365; and
any amounts owed or to be credited pursuant to Paragraph 4.3.2 shall be
paid at the time in the last Subsequent Year, or in the calendar year
immediately following the last Subsequent Year, that such amount is
calculated pursuant to Paragraph 4.3(ii).
4.4 Taxes Payable By Tenant. Tenant shall pay before delinquency any and
all taxes levied or assessed and which become payable by Tenant (or directly or
indirectly by Landlord; during the Term (excluding, however, state and federal
personal or corporate income taxes measured by the income of Landlord from all
sources, capital stock taxes. and estate and inheritance taxes), whether or not
now customary or within the contemplation of the parties hereto, which are
based upon, measured by or otherwise calculated with respect to: (a) the gross
or net rental income of Landlord under this Lease, including, without
limitation, any gross receipts tax levied by any taxing authority, or any other
gross income tax or excise tax levied by any taxing authority with respect to
the receipt of the rental payable hereunder; (b) the value of Tenant's
equipment, furniture, fixtures or other personal property located in the
Premises: (c) the possession, lease, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof; (d) the value of any leasehold improvements, alterations or additions
made in or to the Premises, regardless of whether title to such improvements,
alterations or additions shall be in Tenant or Landlord; or (e) this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises.
4.5 Late Charges and Interest. All amounts payable under this Lease shall
be paid in lawful money of the United States of America. Any amount of Base
Rent, Tenant's Share of Increased Operating Costs, Parking Charges or any other
amount payable under this Lease which is not paid within ten (10) days after it
is due shall be subject to a late charge of 5% of the amount unpaid. Any amount
due to Landlord that is not paid when due shall bear interest at the Overdue
Rate, except that no interest shall accrue for the month in which a late charge
is assessed. Tenant's failure to perform any monetary obligations under this
Lease shall have the same consequences as Tenant's failure to pay Base Rent.
5. USES
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5.1 Authorized. Tenant shall use the Premises solely for general office
purposes and for no other purpose. Tenant shall not use or permit or suffer the
Premises or any part thereof to be used for any purpose other than the purpose
expressly authorized herein.
<PAGE>
5.2 Suitability. Tenant acknowledges that neither Landlord nor any agent
of Landlord has made any representation or warranty with respect to the
Premises, the Building or the Office Complex, or with respect to the
suitability of same for the conduct of Tenant's business, except as expressly
provided in this Lease. Tenant's acceptance of possession of the Premises shall
conclusively establish that the foregoing were at such time in satisfactory
condition.
5.3 Insurance. Tenant shall not do or suffer anything to be done in or
about the Premises, nor shall Tenant bring or allow anything to be brought into
the Premises, which will in any way increase the rate of any fire insurance or
other insurance upon the Building or its contents, cause a cancellation of said
insurance or otherwise affect said insurance in any manner.
5.4 Laws. Tenant shall not do or suffer anything to be done in or about
the Premises which will in any way conflict with any law, statute, ordinance or
other governmental rule, regulation or requirement now in force or which may be
subsequently enacted or promulgated. Tenant shall, at its sole cost and
expense, promptly comply with each and all of said governmental measures and
also with the requirements of any board of fire underwriters or other similar
body now or hereafter constituted to deal with the condition, use or occupancy
of the Premises, excluding structural changes not related to or affected by
Tenant's alterations, additions or improvements. Without limiting the
generality of the foregoing, Tenant will maintain throughout the Term a copy of
the most current list of chemicals known to the State of California to cause
cancer or reproductive toxicity, as published by the State Health and Welfare
Agency in accordance with the Safe Drinking Water and Toxic Enforcement Act of
1986 ("Proposition 65"). Tenant will monitor the chemicals Tenant maintains on
the Premises and will comply with both the warning requirements and the
discharge prohibitions of Proposition 65 for all chemicals on the Premises that
appear on such list. The judgment of any court of competent jurisdiction or the
admission of Tenant in any judicial action, regardless of whether Landlord is a
party thereto, that Tenant has violated any of said governmental measures or
requirements shall be conclusive of that fact as between Landlord and Tenant.
5.5 Nuisance. Tenant shall not place or permit to be placed on any floor a
load exceeding the floor load which such floor was designed to carry. Tenant
also shall not do or suffer anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or annoy said tenants or occupants, nor
shall Tenant use or suffer the Premises to be used for any unlawful purposes.
In no event shall Tenant cause or permit any nuisance in or about the Premises,
and no loudspeakers or similar devices shall be used without the prior written
approval of Landlord, which approval may be withheld in Landlord's sole
discretion. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. The provisions of this paragraph are for the benefit of
Landlord only and shall not be construed to be for the benefit of any tenant or
occupant of the Building.
5.6 Rules and Regulations. Tenant shall comply with the Rules and
Regulations for the Building, together with all modifications and additions
thereto adopted by Landlord from time to time. If there is any conflict between
the Rules and Regulations and the provisions of this Lease, the provisions of
this Lease shall prevail. Landlord shall not be responsible to Tenant for the
nonperformance of any of the Rules and Regulations by any other tenants or
occupants of the Building.
6. SERVICES AND UTILITIES
6.1 Basic Services by Landlord. Provided Tenant is not in default under
this Lease, and subject to the provisions elsewhere in this Lease and to the
Rules and Regulations of the Building, Landlord shall furnish the Premises
with: (a) water, sewage and electricity suitable in Landlord's judgment for the
intended use of the Premises and for the operation of a reasonable number,
based on customary use for general office purpose, of desktop office machines
and ordinary copying
<PAGE>
machines (b) heat and air conditioning between 8:00 a.m. and 5:00 p.m. on days
other than Saturdays, Sundays and generally recognized holidays, in an amount
reasonably required in Landlord's judgment for the comfortable occupation of the
Premises: (c) elevator service, which shall mean service by non-attended
automatic elevators or elevators with attendants, either or both, at the option
of Landlord; and (d) daily janitorial service (five nights per week) similar to
that which is provided in comparable office buildings in the Oakland/Emeryville
area. Landlord shall maintain the Common Areas in a clean and orderly manner and
in a good state of repair.
6.2 Additional Heating and Air Conditioning. Landlord shall use reasonable
efforts to provide additional or after-hours heating or air conditioning at
Tenant's request, provided Tenant pays to Landlord the cost of such services as
determined solely by Landlord based upon Landlord's reasonable estimates of the
costs of such additional services, plus a reasonable charge (not to exceed l0%
of the cost of such services) for Landlord's overhead expense. Tenant shall
keep all draperies closed when necessary because of the sun's position and at
all times cooperate fully with Landlord and abide by all the regulations and
requirements which Landlord may prescribe from time to time for the proper
functioning and processing of the heating, ventilating and air conditioning
systems. Whenever heat-generating machines or equipment or lighting used in the
Premises by Tenant affect the temperature otherwise maintained by the air
conditioning system, Landlord shall have the right to install any machinery and
equipment Landlord deems necessary to restore the temperature balance in any
affected part of the Building, including but not limited to modifications to
the Building's air conditioning system or installation of supplementary air
conditioning units. Tenant shall pay the cost thereof, including installation
and any additional costs of operation and maintenance occasioned thereby, to
Landlord upon demand.
6.3 Special Apparatus. Tenant shall not, except with Landlord's prior
written consent, which consent may be withheld in Landlord's sole discretion,
either: (a) use any apparatus or device in the Premises which will increase the
amount of cooling, ventilation, electricity or water supplied to the Premises
beyond that usually supplied for general office use; or (b) connect with
electric current or water pipes any device or apparatus for the purpose of
using electrical current or water, except as such connections now exist or as
may be provided for the Scope of Work. If Landlord consents to the use and/or
connection of any apparatus or device described in clauses (a) and (b) above,
Landlord may install meters and similar monitoring devices to measure the
amount of utilities consumed by such apparatus or devices and Tenant shall pay
for the cost of all work and materials required for the installation,
maintenance and use of such meters and monitoring devices. If Landlord elects
not to install a special meter or monitoring device, Landlord shall determine
the amount of additional utilities and resources consumed by such apparatus or
device based upon Landlord's reasonable estimates and best judgment, and such
determination, made in good faith by Landlord, shall be conclusive on Tenant.
Tenant shall pay to Landlord promptly upon demand the cost of any excess use of
utilities and resources based on the rates charged by the local public utility
company or other supplier furnishing same, plus any additional expense incurred
by Landlord in keeping account of the foregoing and administering same.
6.4 Interruption In Service. Landlord shall use reasonable efforts to
remedy any interruption in the furnishing of services and utilities. However,
Landlord shall nor be in default under this Lease or liable for any damages
directly or indirectly arising from, nor shall the rent be abated by reason of,
any failure to provide or any reduction in any of the above services or
utilities if such failure or reduction is caused by the making of repairs or
improvements to the Premises or the Building, the installation of equipment.
acts of God or the elements, labor disturbances of any character, or any other
events or conditions whatsoever beyond the reasonable control of Landlord, or
rationing or restrictions on the use of said services and utilities due to
energy shortages or other causes whether or not any of the above result from
acts or omissions of Landlord. Furthermore, Landlord shall be entitled to
cooperate voluntarily in a reasonable manner with the efforts of national,
state or local governmental bodies or utilities suppliers in reducing energy or
other resources consumption. The failure of Landlord to provide the utilities
<PAGE>
and services specified in this Section 6 shall not constitute a constructive or
other eviction Tenant.
6.5 Tenant's Other Utilities. Tenant shall pay prior to delinquency for
all telephone and all other materials and services not expressly required to be
provided by Landlord, which may be furnished to or used in, on or about the
Premises during the Term.
7. TENANT'S ALTERATIONS; PROTECTION AGAINST LIENS
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7.1 Landlord's Consent Required. Tenant shall not make or permit to be
made any alterations, additions or improvements to the Premises or any part
thereof, without first obtaining Landlord's written consent. When applying for
such consent, Tenant shall, if required by Landlord, furnish complete plans and
specifications for such alterations, additions or improvements. All
alterations, additions or improvements to the Premises shall be performed by
contractors selected and supervised by Landlord for Tenant's account and at
Tenant's sole cost and expense. Within ten (10) days after receipt of a written
statement from Landlord, Tenant shall reimburse Landlord for all costs arising
in connection with Landlord's review of plans and specifications and
supervision of contractors. Landlord shall have the right to require that any
contractor performing alterations, improvements or additions to the Premises
shall, prior to commencement of any work, provide Landlord with a performance
bond and labor and materials payment bond in the amount of the contract price
for the work, naming Landlord and Tenant (and any other persons designated by
Landlord as co-obligees). All alterations, additions, fixtures and
improvements, including without limitation all improvements made pursuant to a
Scope of Work, whether temporary or permanent in character, made in or upon the
Premises either by Landlord or Tenant, shall at once belong to Landlord and
become part of the Premises and shall remain on the Premises without
compensation of any kind to Tenant, unless Landlord requires their removal
under Paragraph 7.2 below. Tenant shall carry insurance as required by Section
10 covering any improvements, alterations or additions to the Premises made or
paid for by Tenant, it being understood and agreed that none of such
alterations, additions or improvements shall be insured by Landlord nor shall
Landlord be required under any provision of this Lease to repair, reconstruct
or reinstall any such alterations, additions or improvements. Movable furniture
and equipment which are removable without material damage to the Building or
the Premises shall remain the property of Tenant.
7.2 Removal of Tenant's Alterations. Notwithstanding any contrary
provision in this Lease, Tenant shall, upon Landlord's written request made
prior to or within thirty (30) days following the Expiration Date or the
earlier termination of this Lease, promptly remove any alterations, additions,
fixtures or improvements designated by Landlord to be removed and repair any
damage to the Premises resulting from such removal. Landlord may, in connection
with any such removal which might in Landlord's judgment involve damage to the
Premises, require that such removal be performed by a bonded contractor or
other person for whom a bond satisfactory to Landlord has been furnished
covering the cost of repairing the anticipated damage.
7.3 Protection Against Liens. Tenant shall keep the Premises, the Building
and the Common Areas free from any liens arising out of work performed,
materials furnished, or obligations incurred by Tenant and shall indemnify, hold
harmless and defend Landlord from any liens and encumbrances arising out of any
work performed or materials furnished by or at the direction of Tenant. In the
event that Tenant shall not, within twenty (20) days following imposition of any
such lien, cause such lien to be released of record by payment or posting of a
proper bond, Landlord shall have, in addition to all other remedies provided in
this Lease and by law, the right, but no obligation, to cause the same to be
released by such means as Landlord shall deem proper, including payment of the
claim giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith, including attorneys' fees and costs,
shall be payable by Tenant upon demand with interest at the Overdue Rate from
the date
<PAGE>
such sums are paid or expenses incurred by Landlord. Landlord shall have the
right at all times to post and keep posted on the Premises any notices permitted
or required by law, or which Landlord shall deem proper, for the protection of
Landlord and the Premises, and any other party having an interest therein, from
mechanics' and materialmen's liens, and Tenant shall give to Landlord at least
ten (10) business days' prior written notice of the date of commencement of any
work relating to alterations, additions or improvements in or to the Premises.
8. MAINTENANCE AND REPAIRS
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8.1 Landlord's Obligations. Subject to Sections 15 and 16, Landlord shall
maintain in good order, condition and repair the structural portions of the
Building including the exterior walls, underflooring and roof, the basic
heating, ventilating, air conditioning, plumbing, electrical, and fire
detection and security systems, and all other portions of the Premises not the
obligation of Tenant or any other tenant in the Building. However, if any such
maintenance or repair becomes necessary in whole or in part because of wrongful
acts or omissions by Tenant or Tenant's employees, agents, invitees or
customers, or because of a breaking and entering, Tenant shall pay the entire
cost thereof upon demand. Landlord shall not be liable to Tenant, and rent
shall not be abated, for any failure by Landlord to maintain and repair areas
which are being used in connection with construction of improvements or for any
failure to make any repairs or perform any maintenance unless such failure
shall continue for an unreasonable time after written notice of the need
therefor is given to Landlord by Tenant. Landlord shall also not be liable
under any circumstances for loss of profits or for injury to or interference
with Tenant's business arising from or in connection with the making of or the
failure of Landlord to make any repairs, maintenance, alterations or
improvements in or to any portion of the Building or the Common Areas or in or
to fixtures, appurtenances and equipment therein.
8.2 Tenant's Obligations
(i) Tenant shall maintain the Premises in good order, condition and
repair including the interior surfaces of the ceilings, walls and floors,
all doors, interior windows and all plumbing pipes, valves and fixtures,
electrical wiring, panels, switches, and all other fixtures and equipment
installed for the use of the Premises by Tenant. Tenant expressly waives
the benefit of any statute, ordinance or judicial decision now or hereafter
in effect which would otherwise afford Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of Landlord's failure
to keep the Premises in good order, condition and repair.
(ii) Upon the Expiration Date or the earlier termination of this
Lease, Tenant shall surrender the Premises in the same condition as
received, except for ordinary wear and tear and damage by fire, earthquake,
acts of God or the elements, not caused by the wrongful omission of Tenant
or Tenant's agents, and shall promptly remove or cause to be removed, at
Tenant's expense, from the Premises and the Building any signs, notices and
displays placed by Tenant.
(iii) Tenant shall repair any damage to the Premises or the Building
caused by or in connection with the removal of any articles of personal
property, business or trade fixtures, machinery, equipment, cabinetwork,
furniture, movable partitions or permanent improvements or additions,
including without limitation, repairing the floor and patching and painting
the walls where required by Landlord to Landlord's reasonable satisfaction,
but excluding any damage caused by reasonable use. Tenant shall indemnify
Landlord against any loss or liability resulting from delay by Tenant in so
surrendering the Premises, including without limitation, any claims made by
any succeeding tenant founded on such delay.
<PAGE>
(iv) Tenant shall do 311 acts required to comply with all applicable
laws, ordinances, regulations and rules of any public authority relating to
Tenant's use and occupancy of the Premises.
(v) If Tenant fails to maintain the Premises in good order, condition
and repair, or to comply with applicable laws, ordinances, regulations or
rules, Landlord shall give Tenant notice to do such acts as are reasonably
required to satisfy its obligations under this paragraph. If Tenant fails
to promptly commence such work and diligently prosecute it to completion,
Landlord shall have the right, but no obligation, to do such acts and
expend such funds as are reasonably required to perform such work. Any
amount so expended by Landlord shall be paid by Tenant promptly after
demand with interest at the Overdue Rate from the date of such work.
Landlord shall have no liability to Tenant for any damage, inconvenience or
interference with the use of the Premises by Tenant as a result of
performing any such work.
9. INDEMNITY AND EXEMPTIONS OF LANDLORD
------------------------------------
9.1 Indemnity. Tenant shall indemnify, hold harmless, and defend Landlord
against any and all claims of liability for any death or injury to any person
or damage to any property whatsoever occurring in, on or about the Premises or
any part thereof, or occurring in, on or about any of the Common Areas, when
such injury or damage is caused in whole or in part by the act, negligence,
fault or omission of any duty with respect to the same by Tenant, its agents.
contractors, employees, invitees or customers. Tenant shall further indemnify,
hold harmless and defend Landlord from and against any and all claims, actions
and liabilities arising from (a) any breach or default in the performance of
any obligation on Tenant's part to be performed under this Lease, or b) arising
from any act or negligence of Tenant, or any of its agents, contractors,
invitees or employees, or (c) any Environmental Damages arising from the
presence of Hazardous Materials upon, within or about the Premises due to any
act or omission of Tenant or any of its agents, contractors, invitees or
employees, or (d) violation of any Environmental Requirements pertaining to the
Premises or the activities therein, and (e) from and against all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any such
claim, action or Liability. and any proceeding brought thereon. In case any
action or proceeding be brought against Landlord by reason of any such claim,
Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by
counsel reasonably satisfactory to Landlord provided, however, that Tenant
shall not be liable for damage to property or death or injury to person(s)
occasioned by the active negligence or intentional misconduct of Landlord or
its agents or employees unless covered by insurance Tenant is required to
provide.
9.2 Exemption of Landlord From Liability. Tenant hereby assumes all risk
of damage to property or injury to persons in, upon or about the Premises from
any cause other than the active negligence or intentional misconduct of
Landlord and its agents or employees. Without limiting the generality of the
foregoing, Landlord shall not be liable for injury or damage which may be
sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers, or any other person in or about the Premises
caused by or resulting from fire, steam, electricity, gas, water or rain, which
may leak or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, heating, air conditioning or lighting fixtures of the
same, whether the damage or injury results from conditions arising upon the
Premises or upon other portions of the Building or from other sources. Landlord
shall not be liable for any damages arising from any act or omission of any
other tenant or occupant of the Building.
<PAGE>
10. INSURANCE
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10.1 Tenant's Insurance.
(i) At all times during the Term Tenant shall maintain in effect
policies of casualty insurance covering (a) all alterations, additions or
improvements in, on or to the Premises as may be made or paid for by Tenant
(other than building standard improvements), and (b) all trade fixtures,
merchandise and other personal property from time to time in, on or upon
the Premises, in an amount not less than their actual replacement cost,
providing protection against any peril included within the classification
"Fire and Extended Coverage" together with insurance against sprinkler
damage, vandalism and malicious mischief, including cost of debris removal
and demolition. Replacement cost for purposes hereof shall be determined by
mutual agreement, or failing such agreement by an accredited appraiser
selected by Landlord, with the cost of such appraisal to be borne by
Tenant. The proceeds of such insurance shall be used for the repair or
replacement of the property so insured. Upon termination of this Lease
following a casualty as set forth in Section 16, the proceeds under clause
(a) above shall be paid to Landlord, and the proceeds under clause (b)
above shall be paid to Tenant.
(ii) At all times during the Term Tenant shall maintain in effect
workers' compensation insurance and comprehensive public liability and
property damage insurance adequate to protect Landlord against liability
for injury to or death of any person or loss or injury to any property in
connection with the activities of Tenant in, on or about the Premises or
with the use, operation or condition of the Premises. Such insurance at all
times shall afford combined single limit coverage in an amount of not less
than Two Million Dollars ($2,000.000). The limits of such insurance shall
not limit the liability of Tenant under this Lease. All public liability
and property damage policies shall contain a provision that Landlord,
although named as an insured, shall nevertheless be entitled to recovery
under said policies for any loss occasioned to it, its servants, agents or
employees by reason of Tenant's negligence.
(iii) All insurance required to be carried by Tenant hereunder shall
be issued by responsible insurance companies acceptable to Landlord and any
Mortgagee. All policies of insurance provided for in this Lease shall be
issued by insurance companies licensed to do business in the State of
California, with general policy holder's rating of nor less than "A" and a
financial rating of not less than "Class X" as raced in the most current
available "Best's Insurance Reports." Each policy shall name Landlord and
at Landlord's request any Mortgagee as an additional insured, as their
respective interests may appear, and a duplicate original of all policies
or certificates evidencing the existence and amounts of such insurance
shall be delivered to Landlord by Tenant at least ten (10) days prior to
Tenant's occupancy of the Premises. All policies of insurance delivered to
Landlord must contain a provision that the company writing said policy will
give Landlord thirty (30) days' written notice in advance of any
cancellation or lapse of or any change in such insurance. All public
liability, property damage and other casualty insurance policies shall be
written as primary policies' not contributing with, and not in excess of
coverage which Landlord may carry. Tenant shall furnish Landlord with
renewals or "binders" of any such policy at least thirty (30) days prior to
the expiration thereof. If Tenant does not procure and maintain such
insurance, Landlord may (but shall not be required to) obtain such
insurance on Tenant's behalf and charge Tenant the premiums therefor which
shall be payable upon demand, and no such action by Landlord shall
constitute a waiver of Tenant's default hereunder. Tenant may carry such
insurance under a blanket policy, provided such blanket policy expressly
affords the coverage required by this Lease by a Landlord's protective
liability endorsement or otherwise.
<PAGE>
(iv) Every three (3) years during the Term or whenever Tenant
materially improves or alters the Premises, Tenant shall increase the
policy limits for the insurance to be carried by Tenant under this Section
10 to such amounts as Landlord reasonably determines are appropriate.
10.2 Landlord's Insurance. At all times during the Term, Landlord shall
maintain in effect a policy or policies of insurance covering the Building in
an amount not less than ninety percent (90%) of ful1 replacement cost
(exclusive of the cost of excavations, foundations, footings and all tenant
improvements constructed at the request or cost of Tenant, but inclusive of the
cost of building standard tenant improvements) from time to time during the
Term, providing protection against any peril generally included in the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage. vandalism and malicious mischief. Landlord's obligation to
carry the insurance provided for herein may be brought within the coverage of
any blanket policy or policies of insurance carried and maintained by Landlord.
In addition to the coverage required by this paragraph, Landlord shall be
entitled to procure (and include the premiums therefor in Operating Costs) such
other types of insurance and in such amounts as Landlord may deem to be
necessary or appropriate.
10.3 Subrogation Waiver. Landlord and Tenant each hereby waive any and
all rights of recovery against the other or against the officers. partners,
employees, agents and representatives of the other, on account of loss or
damage of such waiving party or its property, or the property of others under
its control, to the extent that such loss or damage is insured against under
any fire and extended coverage insurance policy which either may have in force
at the time of such loss or damage. Tenant shall, upon obtaining the policies
of insurance required under this Lease, give notice to its insurance carrier(s)
that the foregoing mutual waiver of subrogation is contained in this Lease. The
waivers set forth herein shall be required and effective only to the extent
such waivers are available from each party's insurer without additional
premium; if an extra charge is incurred to obtain such waiver, it shall be paid
by the party in whose favor the waiver runs within fifteen (15) days after
written notice from the other party, and, if not so paid, such other party's
waiver under this paragraph shall be neither required nor effective.
11. ASSIGNMENT AND SUBLETTING
-------------------------
11.1 Landlord's Consent Required. Tenant shall not sell, assign,
mortgage, pledge, hypothecate, encumber or otherwise transfer this Lease or any
interest therein, and shall not sublet the Premises or any part thereof, or
suffer or permit the Premises or any part thereof to be occupied by any other
person (the agents, employees, and invitees of Tenant excepted), without the
prior written consent of Landlord in each instance; and any attempt to do so
without such consent shall be voidable and, at Landlord's election, shall
constitute a noncurable default under this Lease. No interest of Tenant in this
Lease or the Premises shall be assignable by operation of law. Subject to the
terms and conditions contained in this section, Landlord shall not unreasonably
withhold its consent to a voluntary assignment of this Lease or a subletting of
the Premises.
11.2 Tenant's Application. If Tenant desires at any time to assign this
Lease or to sublet the Premises or any portion thereof, Tenant shall submit to
Landlord at least thirty (30) days prior to the proposed effective date of the
assignment or sublease, in writing: (a) a notice of intent to assign or
sublease, setting forth the proposed effective date thereof; (b) the name of
the proposed assignee or subtenant; (c) the nature of the proposed assignee's
or subtenant's business to be carried on in the Premises; (d) the terms and
provisions of the proposed assignment or sublease and (e) such financial
information as Landlord may request concerning the proposed assignee or
subtenant, including recent financial statements and bank references.
<PAGE>
11.3 Required Provisions. All assignment or sublease agreements shall
(a) contain such terms as are described in Tenant's notice under Paragraph 10.2
above or as otherwise agreed by Landlord, (b) prohibit further assignments or
subleases except with Landlord's written consent, (c) impose the same
obligations and condition on the assignee or sublessee as are imposed on Tenant
by this Lease (except as to rent and term or as otherwise agreed by Landlord),
(d) be expressly subject and subordinate to each and every provision of this
Lease, (e) have a term that expires on or before the Expiration Date, and (f)
provide that Tenant and/or the assignee or sublessee shall pay Landlord the
amount of any additional costs or expenses incurred by Landlord for repairs,
Maintenance or otherwise as a result of any change in the nature of occupancy
caused by the assignment or sublease.
11.4 Bonus Rent. Landlord shall be entitled to receive all Bonus Rent
payable in connection with any assignment or sublease. Within fifteen (15) days
after written request by Landlord, Tenant shall provide and certify to Landlord
all financial information required for the calculation of Bonus Rent.
11.5 Fees for Review. If Landlord retains the services of an attorney to
review any aspect of the proposed assignment or sublease transaction, Tenant
shall pay to Landlord all attorneys' fees reasonably incurred by Landlord in
connection therewith. Tenant shall pay such attorneys' fees to Landlord within
thirty (30) days after written request therefor.
11.6 No Release of Tenant. No consent of Landlord to any assignment or
subletting by Tenant shall relieve Tenant of the obligations to be performed by
Tenant under this Lease, whether accruing before or after such assignment, or
subletting, and notwithstanding any subsequent modification, extension or
renewal of this Lease made with or without Tenant's consent. The consent by
Landlord to any transfer or subletting shall not relieve Tenant from the
obligation to obtain Landlord's express prior written consent to any other
transfer or subletting. The acceptance by Landlord of payment from any other
person shall not be deemed to be a waiver by Landlord of any provision of this
Lease or to be a consent to any transfer or sublease, or to be a release of
Tenant from any obligation under this Lease. If this Lease is assigned, or if
the Premises or any part thereof are sublet or occupied by any person other
than Tenant, Landlord may, after default by Tenant, collect the rent from any
such assignee, transferee, subtenant or occupant and apply the net amount
collected to the rent reserved herein, and no such action by Landlord shall be
deemed a consent to such assignment, transfer, sublease or occupancy.
11.7 Assumption of Obligations. Each assignee of Tenant shall assume all
obligations of Tenant under this Lease and shall be and remain liable jointly
and severally with Tenant for the payment of the rent and the performance of
all the terms, covenants, conditions and agreements herein contained on
Tenant's part to be performed for the Term. No assignment shall be binding on
Landlord unless the assignee or Tenant delivers to Landlord a counterpart of
the assignment instrument in recordable form which contains a covenant of
assumption by the transferee satisfactory in substance and form to Landlord,
consistent with the requirements of this section. The failure or refusal of any
assignee to execute such instrument of assumption shall not release or
discharge the assignee from its liability to Landlord hereunder. Landlord shall
have no obligation whatsoever to perform any duty to or respond to any request
from any sublessee, it being the obligation of Tenant to administer the terms
of its subleases.
11.8 Deemed Transfers. If Tenant is a privately held corporation, or is an
unincorporated association or partnership, the transfer, assignment or
hypothecation of any stock or interest in such corporation, association or
partnership in the aggregate from the Lease Date in excess of fifty percent
(50%) shall be deemed an assignment or transfer within the meaning of this
section. However, nothing in this section shall prohibit Tenant from assigning
this Lease or subletting the Premises or any part thereof to any corporation
which controls Tenant. is controlled by Tenant, or is under common control with
Tenant, provided Tenant gives Landlord at least thirty (30) days
<PAGE>
prior written notice of such subletting or assignment; and such subletting or
assignment shall not release or discharge Tenant from any liability under this
Lease.
11.9 Landlord's Option to Recapture. Landlord reserves the option, to be
exercised by giving notice to Tenant within fifteen (15) days after receipt of
Tenant's notice of intent to assign or sublease (it being agreed that no
revocation or withdrawal by Tenant of such notice of intent to assign or
sublease shall affect Landlord's option) to recapture the portion of the
Premises described in Tenant's notice for the remainder of the Term, and to
terminate this Lease with respect to such recaptured Premises. The effective
date of such recapture and termination shall be as specified in Landlord's
notice of exercise of its recapture option, but shall not be less than thirty
(30) days nor more than sixty (60) days after the delivery of such notice. The
option to recapture reserved to Landlord hereunder shall also arise in the
event Tenant shall, voluntarily or involuntarily, sell, assign, mortgage,
pledge, encumber or otherwise transfer this Lease or any interest herein, or
sublet the Premises or any portion thereof, or suffer or permit the Premises to
be occupied by any third person (the agents, employees, invitees and customers
of Tenant excepted), without first obtaining the written consent of Landlord;
and in such event the recapture option shall apply to the entire Premises and
be exercisable by Landlord at any time after the occurrence of the event for
which Landlord's consent was required but not obtained by Tenant. If this Lease
is terminated pursuant to Landlord's recapture option with respect to only a
portion of the Premises, the Base Rent required under this Lease and Tenant's
Share shall be adjusted proportionately based on the rentable square footage
retained by Tenant and the rentable square footage of the Premises leased by
Tenant immediately prior to such recapture and cancellation, and Landlord and
Tenant shall thereupon execute an amendment of this Lease in accordance
therewith. If Landlord so recaptures a portion of the Premises, it shall
construct and erect at its sole cost such partitions as may be required to
sever the space retained by Tenant from the space recaptured by Landlord;
provided, however, that Tenant shall bear the cost of painting, covering or
otherwise decorating the surfaces of such partitions which face the remaining
Premises. Landlord may, without limitation, lease the recaptured portion of the
Premises to the proposed subtenant or assignee, on the same or different terms
as were proposed by Tenant, without liability to Tenant.
12. SUBORDINATION AND ATTORNMENT
----------------------------
12.1 Subordination. Upon the written request of Landlord or any
Mortgagee, Tenant will, in writing, subordinate its rights under this Lease to
the lien of any mortgage or deed of trust now or hereafter in force against the
Premises, the Building or the underlying land and to all advances made or
hereafter to be made upon the security thereof, and to all extensions,
modifications and renewals thereunder. Tenant shall also, upon Landlord's
request, subordinate its rights hereunder to any ground or underlying lease
which may now exist or hereafter be executed affecting the Building and/or the
underlying land. Tenant shall have the right to condition its subordination
upon the execution and delivery of an attornment and nondisturbance agreement,
as described in Paragraph 12.2, between the Mortgagee or the lessor under any
such ground or underlying lease and Tenant. Tenant shall not subordinate its
rights hereunder to any lien other than that of a first mortgage or first deed
of trust; except with the prior written consent of the Mortgagee holding such
first mortgage or deed of trust.
12.2 Attornment. Upon the written request of the Landlord or any Mortgagee
or any lessor under a ground or underlying lease, Tenant shall attorn to any
such Mortgagee or lessor, provided such Mortgagee or lessor agrees that if
Tenant is not in default under this Lease, Tenant's possession of the Premises
in accordance with the terns of this Lease shall not be disturbed. Such
agreement shall provide. among other things, (a) that this Lease shall remain in
full force and effect, (b) that Tenant pay rent to said Mortgagee or lessor from
the date of said attornment (c) that said Mortgagee or lessor shall not be
responsible to Tenant under this Lease except for obligations accruing
subsequent to the date of such attornment, and (d) that Tenant, in
<PAGE>
the event of foreclosure or a deed in lieu thereof or a termination of the
ground or underlying lease, will enter into a new lease with the Mortgagee,
lessor or other person having or acquiring title on the same terms and
conditions as this Lease and for the balance of the Term.
12.3 Nonmaterial Amendments. If any lender should require any modification
of this Lease as a condition of loans secured by a lien on the Premises, the
Building or the land underlying the Building, or if any such modification is
required as a condition to a ground or underlying lease, Tenant will approve
and execute any such modifications, promptly after request by Landlord provided
no such modification shall relate to the rent payable hereunder, the length of
the Term or otherwise materially change the rights or obligations of Landlord
or Tenant.
13. DEFAULT BY TENANT
-----------------
13.1 Acts Constituting Default. In addition to the events specified as a
default elsewhere in this Lease, the failure of Tenant to perform each covenant
made under this Lease, or any abandonment of the Premises by Tenant, shall
constitute a default hereunder. However, Landlord shall not commence any action
to terminate Tenant's right of possession as a consequence of a default until
any period of grace with respect thereto has elapsed; provided, that any such
period of grace shall be in lieu of and not in addition to the period during
which Tenant may cure such default following the delivery of notice pursuant to
California Code of Civil Procedure Section 1161.
(i) Subject to the limitation expressed in Paragraph 13.1.3, Tenant
shall have a period of three (3) days from the date of written notice from
Landlord within which to cure any default in the payment of any monetary
obligations of Tenant under this Lease.
(ii) Tenant shall have a period of fifteen (15) days from the date of
written notice from Landlord within which to cure any other default under
this Lease which is capable of being cured; provided, however, that with
respect to any default which cannot reasonably be cured within fifteen (15)
days, the default shall not be deemed to be uncured if Tenant commences to
cure within five (5) days from Landlord's notice and thereafter prosecutes
diligently and continuously to completion all acts required to cure the
default.
(iii) There shall be no period of grace with respect to any default by
Tenant which is not capable of being cured. Landlord and Tenant stipulate
that the following defaults are not capable of being cured by Tenant: (a)
any default which is specified in this Lease as being incurable; (b) any
unauthorized sale, assignment, mortgage, pledge, hypothecation, encumbrance
or other transfer of this Lease or any interest herein, or any unauthorized
subletting of all or any portion of the Premises; (c) the commission of
waste by Tenant; (d) the failure of Tenant to pay rent or any other
monetary obligation of Tenant hereunder on the due date thereof where such
failure occurs on more than three (3) consecutive occasions or more than
six (6) occasions during any twelve (12) month period; and (e) any other
default which is recognized under California law as being incurable.
13.2 Landlord's Remedies. If Tenant fails to cure a default or in the
event of a default which is not capable of being cured by Tenant, Landlord
shall have the following rights and remedies in addition to any other rights
and remedies available to Landlord at law or in equity:
(i) Landlord shall have all rights and remedies provided by California
Civil Code Section 1951.2 (or any successor statute), including but not
limited to, recovery of the worth at the time of award of the amount by
which the unpaid rent for the balance of the Term after the time of award
exceeds the amount of rental loss for the same period that Tenant proves
could be reasonably avoided. as computed pursuant to subsection (b) of said
Section 1951.2;
<PAGE>
(ii) Landlord shall have rights and remedies provided by California
Civil Code Section 1951.4 (or any successor statute), which allows Landlord
to continue this Lease in effect and to enforce all of its rights and
remedies under this Lease, including the right to recover rent as it
becomes due, for so long as Landlord does not terminate Tenant's right to
possession. Acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver upon the Landlord's initiative
to protect its interest under this Lease shall not constitute a termination
of Tenant's right to possession; and
(iii) Landlord shall have the right, but not the obligation, to make
any payment or perform any act on Tenant's part as may be required to cure
Tenant's default, without waiving its rights based upon such default by
Tenant and without releasing Tenant from any of its obligations. All sums
so paid and all costs incurred by Landlord, together with interest thereon
at the Overdue Rate from the date of such payment or the incurrence of such
cost by Landlord, whichever occurs first, shall be paid to Landlord on
demand.
14. DEFAULT BY LANDLORD
-------------------
14.1 Existence of Default. Landlord shall not be deemed to be in default
in the performance of any obligation under this Lease unless and until it has
failed to perform such obligation within thirty (30) days after receipt of
written notice by Tenant to Landlord specifying such failure; provided,
however, that if the nature of Landlord's default is such that more than thirty
(30) days are required for its cure, then Landlord shall not be deemed to be in
default if it commences such cure within the thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
14.2 Mortgagee's Right To Cure. Tenant shall give any Mortgagee a copy,
by registered mail, of any notice of default served upon Landlord, provided
that Tenant previously has been notified in writing (by way of Notice of
Assignment of Rents and Leases, or otherwise), of the address of such
Mortgagee. if Landlord fails to cure such default within the time provided in
this Lease, any such Mortgagee shall have an additional forty-five (45) days
within which to cure such default by Landlord, or if such default cannot be
cured within that time, then such additional time as may be necessary if within
that forty-five (46) day period the Mortgagee has commenced and is pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
pursued.
14.3 Judgment Against Landlord. If Tenant recovers any judgment against
Landlord for a default by Landlord under this Lease, the judgment shall be
satisfied only out of the interest of Landlord in the Building and neither
Landlord nor any of its, partners, officers, employees or agents shall be
personally liable for any such default or for any deficiency.
15. CONDEMNATION
------------
15.1 Termination Due To Taking. If all or any part of the Premises are the
subject of a Taking, either Landlord or Tenant may, by written notice given to
the other within thirty (30) days of receipt of notice of such Taking, elect to
terminate this Lease as of the date possession is transferred pursuant to the
Taking; provided, however, that before Tenant may terminate this Lease for a
Taking, such Taking must be of such an extent and nature as to substantially
impede Tenant's use of the Premises. If any part of the Building other than the
Premises shall be the subject of a Taking, Landlord may elect to terminate this
Lease. If there is a Taking of all or a part of the Parking Facilities and the
parking rights granted to Tenant under Paragraph 2.4 are substantially reduced
thereby, Landlord shall have the right to provide replacement parking to
compensate for such reduction within other parking areas serving the Office
Complex. If such replacement parking is not provided, then for a period of
thirty (30) days after Landlord notifies
<PAGE>
Tenant that such replacement parking cannot be provided, Tenant shall have the
right to terminate this Lease, effective at a time specified by Tenant not to
exceed thirty (30) days from the date of the notice.
15.2 No Termination Due To Taking. If a partial Taking of the Premises
does not result in a termination of this Lease, Base Rent, Tenant's Share of
Increased Operating Casts and Tenant's parking rights shall be reduced in
proportion to what the area of the Premises taken bears to the area of the
Premises immediately prior to the Taking. No temporary taking of the Premises
or any part of the Building shall terminate this Lease, except at Landlord's
election, or give Tenant any right to any abatement of Base Rent or Increased
Operating Costs, except that Base Rent and Operating Costs shall be reduced in
accordance with the preceding sentence during that portion of any temporary
Taking of the Premises lasting more than thirty (30) days. Each party hereto
waives the provisions of California Code of Civil Procedure Section 1265.130
(or any successor statute) allowing either party to file a petition to
terminate this Lease for a partial Taking.
15.3 Award For Taking. No award for any partial or entire Taking shall be
apportioned, and Tenant hereby assigns to Landlord any and all rights of Tenant
to any portion of the award for a Taking. However, nothing contained herein
shall be deemed to give Landlord any interest in or to require Tenant to assign
to Landlord any award made to Tenant for taking of personal property belonging
to Tenant.
16. DAMAGE AND DESTRUCTION
----------------------
16.1 Partial Damage - Insured. If the Premises or the Building are
damaged by a risk covered under fire and extended coverage insurance insuring
Landlord, then Landlord shall restore such damage provided insurance proceeds
are available to Landlord to pay ninety percent (90%) or more of the cost of
restoration, and provided such restoration by Landlord can be completed within
eight (8) months after the commencement of work in the opinion of a licensed
architect or engineer appointed by Landlord. In such event this Lease shall
continue in full force and effect, except that Tenant shall, so long as the
damage is not due to the act or omission of Tenant, be entitled to an equitable
reduction of Base Rent and Tenant's Share of Excess Building Operating Costs
while such restoration takes place, such reduction to be based upon the extent
to which the damage or restoration efforts materially interfere with Tenant's
use of the Premises.
16.2 Partial Damage - Uninsured. If the Premises or the Building are
damaged by a risk not covered by such insurance or if the insurance proceeds
available to Landlord are less than eighty percent (80%) of the cost of
restoration, or if the restoration cannot be completed within eight (8) months
after the commencement of work in the opinion of the licensed architect or
engineer appointed by Landlord, then Landlord shall have the option either to
(a) repair or restore such damage, this Lease continuing in full force and
effect, with the Base Rent and Tenant's Share of Excess Building Operating
Costs to be equitably reduced as provided in Paragraph 16.1, or (b) give notice
to Tenant at any time within ninety (90) days after such damage terminating
this Lease as of a date to be specified in such notice, which date shal1 be not
less than thirty (30) nor more than sixty (60) days after the giving of such
notice. If such notice is given, this Lease shall expire and any interest of
Tenant in the Premises shall terminate on the date specified in such notice.
The Base Rent and Tenant's Share of Excess Building Operating Costs during the
period prior to the termination shall be reduced as provided in Paragraph 16.1
and paid up through the date of termination.
16.3 Total Destruction. If the Premises are totally destroyed or in
Landlord's judgment the Premises cannot be restored as required herein under
applicable laws and regulations, notwithstanding the availability of insurance
proceeds. this Lease shall be terminated effective as of the date of the
damage.
<PAGE>
16.4 Landlord's Obligations. Any restoration by Landlord pursuant to
Paragraphs 16.1 or 16.2 shall be commenced as soon as reasonably possible after
the date of damage and prosecuted diligently to completion at the earliest
possible date. Landlord shall not be required to carry insurance of any kind on
Tenant's property and shall not be required to repair any injury or damage
thereto by fire or other causes, or to make any restoration or replacement of
any paneling, decorations, partitions, ceilings, floor covering, office
fixtures or any other improvements or property installed in the Premises by or
at the direct or indirect expense of Tenant (other than building standard
tenant improvements), and Tenant shall be required to restore or replace same
in the event of damage. Tenant shall have no claim against Landlord for any
loss suffered by reason of any such damage, destruction, repair or restoration.
Notwithstanding anything to the contrary contained in this section, Landlord
shall have no obligation to repair, reconstruct or restore the Premises with
respect to damage or destruction as described in this section occurring during
the last twelve (12) months of the Term.
16.5 Waiver by Tenant. Tenant shall have no right to terminate this Lease
as a result of any statutory provisions now or hereafter in effect pertaining
to the damage and destruction of the Premises or the Building, except as
expressly provided herein, and Tenant expressly waives the provisions of
California Civil Code Sections 1932(2) and 1933(4) with respect to any damage
or destruction of the Premises.
17. DEFINITIONS
-----------
17.1 "Base Rent" means the monthly rent payable pursuant to Paragraph 4.1,
and as specified in the Basic Lease Provisions.
17.2 "Base Year" means the calendar year specified in the Basic Lease
Provisions.
17.3 "Basic Lease Provisions" means the provisions contained in Paragraph
1.2 of this Lease.
17.4 "Bonus Rent" means the excess of (a) all consideration received by
Tenant from an assignment of this Lease or a sublease of all or any portion of
the Premises over (b) the Base Rent, Increased Operating Costs and other charges
payable by Tenant to Landlord under this Lease (prorated, in the case of a
sublease of less than all of the Premises, to reflect obligations allocable to
only the portion of the Premises so sublet). In determining the total
consideration under the foregoing clause (a), Tenant shall be entitled to
exclude therefrom reasonable leasing commissions paid by Tenant to any
unaffiliated third party, payments attributable to the amortization of the cost
of improvements Tenant must make to the Premises at its cost to ready same for
the assignee or sublessee, and other reasonable, out-of-pocket costs paid by
Tenant which are directly related to Tenant's obtaining the assignment or
sublease.
17.5 "Building" means the highrise office building described in the Basic
Lease Provisions, the parcels of land on which such office building is situated.
all other improvements situated on the land, and all rights and easements
appurtenant thereto. Except where the context requires otherwise, references to
the "Building" shall include the Common Areas and the Parking Facilities serving
the Building and other buildings in the Office Complex.
17.6 "Commencement Date" means the date determined pursuant to Paragraph
3.2 of this Lease for the commencement of the Term.
17.7 "Common Areas" means areas within the Building (including common
corridors and hallways, stairwells, elevators, restrooms, lobbies and other
public areas) and within the Office Complex which are available for nonexclusive
use by Tenant and other tenants of the Building or the Office Complex.
<PAGE>
17.8 "Environmental Damages" means all claims, judgments, damages, losses,
penalties, fines, liabilities, strict costs and expenses of defense of any claim
and of any settlement or judgment, including without limitation reasonable
attorneys' fees and consultants' fees, any of which are incurred at any time as
a result of the existence of "Hazardous Material" upon, about, beneath the
Premises or migrating or threatening to migrate to or from the Premises, or the
existence of a violation of "Environmental Requirements" pertaining to the
Premises including, without limitation: (a) damages for personal injury, or
injury to property or natural resources occurring upon or off of the Premises,
foreseeable or unforeseeable, including, without limitation, lost profits,
consequential damages, interest and penalties including but not limited to
claims brought by or on behalf of employees of Tenant, with respect to which
Tenant waives any immunity to which it may be entitled under any industrial or
worker's compensation laws; (b) diminution in the value of the Premises, and
damages for the loss of or restriction on the use of or adverse impact on the
marketing of rentable or usable space or of any amenity of the Premises; (c)
fees incurred for the services of attorneys consultants, contractors, experts,
laboratories and all other costs incurred in connection with the investigation
or remediation of such "Hazardous Materials" or violation of "Environmental
Requirements" including, but not limited to, the preparation of any feasibility
studies or reports or the performance of any cleanup, remedial, removal,
containment, restoration or monitoring work required by any federal, state or
local governmental agency or political subdivision, or reasonably necessary to
make full economic use of the Premises or any other property or otherwise
expended in connection with such conditions, and including without limitation
any attorneys' fees, costs and expenses incurred in enforcing this agreement or
collecting any sums due hereunder; and (d) liability to any third person or
governmental agency to indemnify such person or agency for costs expended in
connection with the items referenced in subparagraph (c) herein.
17.9 "Environmental Requirements" means all applicable present and future
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises and similar items, of
all governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including, without Limitation: (a) all requirements, including but
not limited to, those pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, releases or threatened
releases of "Hazardous Materials," chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials or wastes whether solid, liquid or
gaseous in nature, into the air, surface water, groundwater or land, or relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials, or wastes, whether solid, liquid or
gaseous in nature; and (b) all requirements pertaining to the protection of the
health and safety of employees or the public.
17.10 "Expiration Date" means the scheduled date on which the Term will
expire as determined pursuant to Paragraph 3.2 of this Lease.
17.11 "Hazardous Materials" means any chemical substance (a) the presence
of which requires investigation or remediation under any federal, state or local
statute, regulation, ordinance, order, action or policy; or (b) which is or
becomes defined as a "hazardous waste" or "hazardous substance" under any
federal, state or local statute, regulation or ordinance or amendments thereto;
or (c) which is toxic. explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by
any governmental authority, agency, department, commission. board, agency or
instrumentality of the United States. the State of California or any political
subdivision thereof or (d) the presence of which on the Premises causes or
threatens to cause a nuisance upon the Premises or to adjacent properties or
poses or threatens to pose a hazard to the Premises or the health or safety of
persons on or
<PAGE>
about the Premises; or (e) without limitation, which contains gasoline, diesel
fuel or other petroleum hydrocarbons; or (f) which contains polychlorinated
bipheynols (PCBs), asbestos or urea formaldehyde foam insulation.
17.12 "Increased Operating Costs" means the amount by which the Operating
Costs during any Subsequent Year exceed the Operating Costs for the Base Year.
17.13 "Landlord's Work" means the work, if any, to be performed by
Landlord to ready the Premises for Tenant's occupancy, as specified in the
Scope of Work.
17.14 "Lease Date" means the date specified in the Basic Lease Provisions,
which shall be the effective date of execution of this Lease by Landlord and
Tenant unless otherwise provided in this Lease.
17.15 "Mortgagee" means the holder of any mortgage or deed of trust
secured by the Building or the Premises or any portion thereof.
17.16 "Office Complex" means the development comprised of the three office
buildings commonly known as Watergate Towers I, II and m addressed,
respectively, as 1900 Powell Street, 2200 Powell Street and 2000 Powell Street,
respectively, Emeryville, California.
17.17 "Operating Costs" means all actual costs of ownership, operation,
maintenance, repair and management of the Building, including the Building's
share of all such costs of the Parking Facilities and the Common Areas which
are shared with other buildings in the Office Complex to be based on Landlord's
reasonable allocation among the buildings. If during the Base Year or any
Subsequent Year the Building is less than ninety-five percent (95%) occupied,
those Operating Costs which vary based on the level of occupancy shall be
adjusted upward to reflect, in Landlord's reasonable judgment, the Operating
Costs that would apply during such year if the Building were at least
ninety-five percent (95%) occupied.
17.17. 1 Operating Costs shall include:
(a) salaries and other compensation, including payroll taxes,
vacation, holiday and other paid absences, and welfare, retirement and
other fringe benefits, paid to employees, independent contractors or agents
of Landlord engaged in the operation, repair, management or maintenance of
the Building, including (i) elevator operators, (ii) window cleaners,
miscellaneous repair personnel, janitors, cleaning personnel and porters,
(iii) security personnel and caretakers, and (iv) engineers, mechanics,
electricians and plumbers
(b) repairs and maintenance of the Building and the costs of supplies,
tools, materials and equipment for such repairs and maintenance that are
under generally accepted accounting principles not capitalized;
(c) premiums and other charges. incurred by Landlord for insurance on
the Building and for Landlord's employees, including (i) fire and extended
coverage insurance, and earthquake, windstorm, flood and explosion
insurance, (ii) public liability and property damage insurance, (iii)
workers' compensation insurance, (iv) boiler and machinery insurance'
sprinkler leakage, water damage and related liability insurance, and
burglary, fidelity and pilferage insurance on equipment and materials, (v)
health, accident and group life insurance, (vi) all such insurance as
Landlord is required to carry under Section 10 of this Lease, and (vii)
such other insurance as is customarily carried by operators of comparable
first-class office buildings in the San Francisco Bay Area;
<PAGE>
(d) costs incurred for inspection and servicing, including all outside
maintenance contracts necessary for the maintenance of the Building, such
as janitorial and window clearing, rubbish removal, exterminating, water
treatment, elevator, electrical, plumbing and mechanical equipment, and the
costs of materials, tools, supplies and equipment used for inspection and
servicing of the Building;
(e) costs incurred for electricity, water, gas, fuel and other
utilities;
(f) payroll taxes, federal taxes, state and local unemployment taxes,
and social security taxes paid for the employees of Landlord engaged in the
operation, maintenance and repair of the Building;
(g) sales, use and excise taxes on goods and services purchased by
Landlord for use in the Building;
(h) license, permit and inspection fees;
(i) accounting and legal fees;
(j) customary management fees not to exceed five percent (5%) of the
gross revenues of the Building;
(k) the annual amortization over its useful life, with a reasonable
salvage value on a straightline basis, of the costs of any capital
improvements made by Landlord and required by any changes in applicable
laws, rules or regulations of any governmental authority enacted after the
Building was completed;
(l) the annual amortization over its useful life, with a reasonable
salvage value on a straightline basis, of the costs of any equipment or
capital improvements made by Landlord after the Building was completed as a
labor-saving measure or to accomplish other savings in operating,
repairing, managing or maintaining the Building, but only to the extent of
the savings;
(m) the annual amortization, over its useful life on a straight line
basis, of the cost of any exterior window draperies provided by Landlord
and the carpeting in the Common Areas;
(n) any costs for substituting work, labor, materials or services in
place of any of the above items, or for any additional work, labor,
materials, services or improvements to comply with any governmental laws,
rules regulations or other requirements applicable to the Building enacted
after the Building was completed which are considered operating expenses
under Generally Accepted Accounting Principles;
(o) other costs reasonably necessary to maintain, operate, repair
manage the Building in a first-class manner and condition;
(p) all real property taxes on the Building, the land on which the
Building is situated, and the various estates in the Building and a
proportion of the real property taxes on the land and improvements
comprising the Parking Facilities and the Common Areas shared with other
buildings in the Office Complex, based on Landlord's reasonable allocation
among the buildings using such facilities and areas;
(q) all personal property taxes levied on property used in the
operation of the Building;
<PAGE>
(r) all taxes of every kind and nature whatsoever levied or assessed
in lieu of or in substitution for existing or additional real or personal
property taxes on the Building, land or personal property other than taxes
covered by paragraph 4.5, including, but not Limited to, any charge, levy,
excise or assessment upon Landlord's business of leasing the Premises or
other portions of the Building or the Parking Facilities; and
(s) the cost to Landlord of contesting the amount, validity or
applicability of any of the foregoing items.
17.17.2 Operating Costs shall exclude:
(a) leasing commissions, costs, disbursements and other expenses
incurred for leasing, renovating or improving space for tenants;
(b) the cost of electricity or other services sold to tenants for
which Landlord is to be reimbursed as a charge over the rent payable under
the leases with such tenants;
(c) costs incurred because Landlord or another tenant violated the
terms of any lease of the Building;
(d) interest on debt or amortization payments on mortgages or deeds of
trust or any other debt for borrowed money, except as herein expressly
permitted;
(e) items and services for which Tenant reimburses Landlord or pays
third parties or that Landlord provides selectively to one or more tenants
of the Building other than Tenant without reimbursement;
(f) advertising and promotional expenses;
(g) repairs or other work needed because of fire or other casualty
insured against by Landlord;
(h) costs incurred in operating the Parking Facilities except to the
extent the cost of operating the Parking Facilities exceeds the revenues
generated from operation thereof;
(i) nonrecurring costs incurred to remedy structural defects in the
original construction materials or insulation; and
(j) costs incurred by Landlord for alterations that are considered
capital improvements under generally accepted accounting principles except
to the extent the same are expressly permitted under Paragraph 17.17.1.
17.18 "Overdue Rate" means the lesser of: (a) eighteen percent (18%) per
annum; or (b) the maximum rate permitted under applicable usury law.
17.19 "Parking Charge" means the monthly amount to be paid by Tenant for
each parking permit issued to Tenant pursuant to paragraph 2.4, which amount is
specified in the Basic Lease Provisions and subject to increase.
17.20 "Parking Facilities" means the parking lot(s) and parking
structure(s) located within or adjacent to the Office Complex and designated by
Landlord as serving the Building.
<PAGE>
17.21 "Premises" means the portion of the Building demised by this Lease,
as designated suite by the suite number in the Basic Lease Provisions
and shown on Exhibit A to this Lease.
17.22 "Rules and Regulations" means the rules and regulations regulating
the use of the Premises, the Common Areas, Parking Facilities and other
portions of the Building promulgated by Landlord from time to time as provided
in paragraph 5.6 of this Lease.
17.23 "Security Deposit" means the amount specified in the Basic Lease
Provisions, which is to be held by Landlord to secure Tenant's performance of
its obligations under this Lease as provided in paragraph 4.2.
17.24 "Scope of Work" means the Scope of Work Agreement if any, executed
by Landlord and Tenant concurrently with their execution of the Lease, which
will be attached as Exhibit B to this Lease and will establish the full extent
of Landlord's Work in readying the Premises for Tenant's occupancy hereunder.
17.25 "Subsequent Year" means any calendar year during the Term after the
Base Year.
17.26 "Substantial Completion" means (a) completion, as determined in the
event of a dispute by Landlord's architect in accordance with AIA standards, of
Landlord's Work except for such items as constitute a minor defect or
deficiency which can be completed or corrected after occupancy without causing
any material interference with Tenant's use of the Premises, and (b) the
issuance of a certificate of occupancy by the City of Emeryville or such other
governmental authorization as may be required for occupancy of the Premises.
17.27 "Taking" means the taking of property or any interest therein for
public or quasi public use by exercise of the power of eminent domain or
otherwise, or a taking in the nature of inverse condemnation, with or without
litigation, or a transfer of property or any interest therein pursuant to an
agreement entered into under threat of exercise of the power of eminent domain.
17.28 "Tenant Parking" means the number of permits to park passenger
automobiles in the Parking Facilities which are to be issued to Tenant pursuant
to paragraph 2.4, and as specified in the Basic Lease Provisions.
17.29 "Tenant's Share" means the ratio that the rentable square footage
of the Premises bears to the total rentable square footage of the Building. If
the rentable square footage of the Premises and/or the total rentable square
footage of the Building changes, Tenant's Share shall be appropriately adjusted
so that it at all times reflects the proportion which the rentable square
footage of the Premises bears to the total rentable square footage of the
Building.
17.30 "Term" means the term of this Lease, including any permitted
extensions or renewals thereof.
18. MISCELLANEOUS PROVISIONS
------------------------
18.1 Estoppel Certificates. Within ten (10) days following any written
request Landlord may make from time to time, Tenant without any charge therefor,
shall execute, acknowledge and deliver a statement certifying: (a) the
Commencement Date of this Lease; (b) the fact that this Lease is unmodified and
in full force and effect (or if there have been modifications hereto, that this
Lease is in full force and effect, as modified, and stating the date and nature
of such modifications); (c) the date to which the rent and other sums payable
under this Lease have been paid; (d) the fact that there are no current defaults
under this Lease by either Landlord or Tenant except as specified in the
statement; and (e) such other matters as may be reasonably requested by
Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this
<PAGE>
paragraph may be relied upon by a mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein. Tenant's failure
to deliver any such statement within said ten (10) day period shall constitute a
material default, and Tenant shall indemnify and hold Landlord harmless from and
against any and all liability, loss, cost, damage and expense which Landlord may
sustain or incur as a result of or in connection with Tenant's failure or delay
in delivering such statement. If Landlord elects to sell the Building or to
obtain loans secured by a lien on the Building, Tenant, promptly after demand,
shall provide to any such purchaser or lender financial statements of Tenant
reasonably required by the purchaser or lender. The financial statements so
provided shall be kept confidential as to any parties other than the purchaser
or lender.
18.2 Surrender of Premises. A voluntary or other surrender of this Lease
by Tenant or the mutual cancellation of this Lease shall not work a merger and
shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
18.3 Light and Air. No diminution of light, air or view by any structure
which may hereafter be erected (whether or not by Landlord) shall entitle
Tenant to any reduction of rent under this Lease, result in any liability of
Landlord to Tenant, or in any other way affect this Lease.
18.4 Waiver. If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such waiver shall not be
deemed to be a waiver of the term, covenant or condition itself or a waiver of
any subsequent breach of the same or any other term, covenant or condition
contained herein. Furthermore, the acceptance of rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, regardless of Landlord's knowledge of such preceding
breach at the time Landlord accepts such rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for any length of time
shall not be deemed to waive or to decrease the right of Landlord to insist
thereafter upon strict performance by Tenant. Waiver by Landlord of any term,
covenant or condition contained in this Lease may only be made by a written
document signed by Landlord.
18.5 Attorneys' Fees. In the event that any action or proceeding
(including arbitration) is brought to enforce or interpret any term, covenant
or condition of this Lease on the part of Landlord or Tenant, the prevailing
party in such action or proceeding (whether after trial or appeal) shall be
entitled to recover from the party not prevailing its expenses therein,
including reasonable attorneys' fees and all allowable costs. If Landlord is
made a party to any action or proceeding commenced by a third party due to any
actual or alleged act or omission of Tenant or Tenant's agents, employees,
contractors, invitees or subtenants, Tenant shall indemnify and hold Landlord
harmless from all costs incurred in such action or proceeding, including
reasonable attorneys' fees. If Tenant requests Landlord's consent to, approval
of or signature on any instrument or agreement which would alter or affect:
Landlord's legal rights and duties, Tenant shall reimburse Landlord upon demand
for Landlord's reasonable attorneys' fees incurred in connection with the
review and evaluation of the requested action.
18.6 Notices. Any notice required or permitted under this Lease shall be in
writing and shall be delivered either personally or by deposing same in the
United States Mail, postage prepaid, registered or certified, return receipt
requested, addressed to the intended recipient at such party's address set forth
in the Basic Lease Provisions or at such other address as such party has
theretofore specified by written notice delivered in accordance with this
paragraph. Any notice delivered by mail in the manner specified in this
paragraph shall be deemed delivered on the earlier of the third day following
deposit thereof in the United States Mail or on the delivery date shown on the
return receipt prepared in connection therewith; and any such notice specifying
a default by Tenant shall be deemed sufficient for all purposes under California
Code of Civil
<PAGE>
Procedure Sections 1161 and 1162, notwithstanding the fact that such notice is
not personally served on Tenant or that such notice does not demand possession
of the Premises as an alternative to Tenant's curing of such default.
18.7 Merger. Notwithstanding the acquisition (if same should occur) by
the same party of the title and interests of both Landlord and Tenant under
this Lease, there shall never be a merger of the estates of Landlord and Tenant
under this Lease, but instead the separate estates, rights, duties and
obligations of Landlord and Tenant, as existing hereunder, shall remain
unextinguished and continue, separately, in full force and effect until this
Lease expires or otherwise terminates in accordance with the express provisions
herein contained.
18.8 Substituted Premises. Landlord reserves the right at any time, upon
not less than ninety (90) days prior written notice to Tenant, to substitute
for the Premises a comparable area within the Building having a substantially
equivalent rentable area as the Premises, and thereupon such other area shall
be deemed to be the Premises covered by this Lease. If the substituted area is
smaller or larger than the Premises the Base Rent, Security Deposit and
Tenant's Share of Building Operating Costs specified in this Lease shall be
adjusted proportionately. The expense of moving Tenant, its property and
equipment to the substitute pre ruses and of improving said substitute premises
to a condition similar to the then current condition of the Premises hereunder
shall be borne by Landlord.
18.9 Headings. Words used in neuter gender include the feminine and
masculine, where applicable. If there is more than one Tenant, the obligations
imposed under this Lease upon Tenant shall be joint and several. The headings
and titles to the sections and paragraphs of this Lease are used for
convenience only and shall have no effect upon the construction or
interpretation of this Lease.
18.10 Time And Applicable Law. Time is of the essence of this Lease and
all of its provisions. This Lease shall in all respects be governed by and
interpreted in accordance with the laws of the State of California.
18.11 Successors And Assigns. Each conveyance by Landlord or its
successors in interest of Landlord's interest in the Building or the Premises
prior to the expiration or termination of this Lease shall be subject to this
Lease and shall relieve the grantor of all further Liability or obligations as
Landlord, except for such liability or obligations accruing prior to the date
of such conveyance. If any Security Deposit has been given to Landlord,
Landlord shall deliver such Security Deposit to Landlord's successor in
interest and thereupon be released of all further liability with regard
thereto, without the requirement of any notice thereof to Tenant. Tenant agrees
to attorn to Landlord's successors in interest, whether such interest is
acquired by sale, transfer, foreclosure, deed in lieu of foreclosure or
otherwise. Subject to the foregoing and to the provisions of Section 16, the
terms, covenants and conditions contained herein shall be binding upon and
inure to the benefit of the heirs, successors, executors, administrators and
assigns of the parties hereto.
18.12 Entry by Landlord. Landlord and its authorized representatives shall
have the right to enter the Premises: (a) to inspect the Premises; (b) to supply
any service provided to Tenant hereunder; (c) to show the Premises to
prospective brokers; agents, purchasers, lenders or tenants; (d) to post notices
of non-responsibility, (e) to alter, improve or repair the Premises and any
other portion of the Building; and (f) to erect scaffolding and other necessary
structures, where required by the work to be performed, all without reduction or
abatement of rent. Tenant hereby waives any claim for damages for any injury to
or interference with Tenant's business or quiet enjoyment of the Premises or any
other loss occasioned by such entry. Landlord shall at all times have a key to
unlock all doors in and about the Premises, excluding Tenant's vaults and safes,
and Landlord shall have the right to use any means which Landlord deems proper
to open said doors in an
<PAGE>
emergency, and any such entry to the Premises shal1 not under any circumstances
be construed or deemed to be a forcible or unlawful entry into the Premises or a
Retainer of the Premises or an eviction of Tenant from any portion of the
Premises.
18.13 Entire Agreement. This Lease, together with its exhibits, contains
all the agreements of the parties hereto and supersedes any previous
negotiations. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this
Lease and its exhibits. This Lease may not be modified except by a written
instrument duly executed by the parties hereto.
18.14 Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
event, the remainder of this Lease and the application of such provision to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
18.15 Signs. Tenant shall not place or permit to be placed in or upon the
Premises where visible from outside the Premises or any part of the Building,
any signs, notices, drapes, shutters, blinds or window coatings, or displays of
any type without the prior written consent of Landlord. Landlord shall consent
to the location at the cost of Tenant of a building standard sign on or near
the entrance of the Premises and shall include Tenant in the Building
directories located in the Building. Landlord reserves the right in Landlord's
sole discretion to place and locate on the roof and exterior of the Building
and in any area of the Building not leased to Tenant, such signs, notices,
displays and similar items as Landlord deems appropriate in the proper
operation of the Building.
18.16 Execution 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 becomes effective
and binding orally upon execution and delivery hereof by Tenant and by
Landlord. 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.
18.17 Brokers. Tenant shall hold Landlord harmless from all damages
(including attorneys' fees and costs) resulting from any claims that may be
asserted against Landlord by any broker, finder, or other person with whom
Tenant has or purportedly has dealt, except the leasing agent for the Building
duly appointed by Landlord.
18.18 Name Of Building. Tenant shall not use the name of the Building for
any purpose other than the address of the business to be conducted by Tenant in
the Premises. Tenant shall not use any picture of the Building in its
advertising, stationery and in any other manner so as to imply that the entire
Building is leased by Tenant. Landlord expressly reserves the right at any time
to change the name or street address of the Building without in any manner
being liable to Tenant therefor.
18.19 Nonrecordability Of Lease. Tenant agrees that in no event shall
this Lease or a memorandum hereof be recorded without Landlord's express prior
written consent, which consent Landlord may withhold in its sole discretion.
18.20 Construction. All provisions hereof, whether covenants or
conditions, shall be deemed to be both covenants and conditions. The
definitions contained in this Lease shall be used to interpret the Lease. All
rights and remedies of Landlord and Tenant shall, except as otherwise expressly
provided, be cumulative and non-exclusive of any other remedy at law or in
equity.
18.21 Inability To Perform. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of-its obligations hereunder or is
<PAGE>
delayed in doing so, if such inability or delay is caused by reason of force
majeure, strike, labor troubles, acts of God, acts of government, unavailability
of materials or labor, or any other cause beyond the control of Landlord.
18.22 Authority. If Tenant is a corporation, each individual executing
this Lease on behalf of Tenant represents and warrants that Tenant is qualified
to do business in California and that he is duly authorized to execute and
deliver this Lease on behalf of Tenant and shall deliver appropriate
certification to that effect if requested. If Tenant is a partnership, joint
venture, or other unincorporated association, each individual executing this
Lease on behalf of Tenant represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of Tenant and that this Lease is
binding on Tenant. Furthermore, Tenant agrees that the execution of any written
consent hereunder, or any written modification or termination of this Lease, by
any general partner of Tenant or any other authorized agent of Tenant, shall be
binding on Tenant.
18.23 Quiet Enjoyment. So long as Tenant is not in default under this
Lease, Tenant shall have quiet enjoyment of the Premises for the Term, subject
to all the terms and conditions of this Lease and all liens and encumbrances
prior to this Lease.
19. RIGHT TO TERMINATE FOR LARGER PREMISES.
----------------------------------------
Provided Tenant is not in default under any of the Terms or Conditions of
this Lease, Tenant shall have the right to terminate this Lease during the
initial term of said Lease upon the commencement of a new Lease for enlarged
premises within the building. The Lease for the enlarged premises shall be upon
Terms and Conditions mutually acceptable to Landlord and Tenant. The enlarged
premises shall incorporate an increase of at least fifty percent (50%) of the
space previously being occupied by Tenant.
"LANDLORD"
SPIEKER PROPERTIES. L.P.
A CALIFORNIA LIMITED PARTNERSHIP
By: Spieker Properties, Inc.
a Maryland Corporation
Its: General Partner
BY /s/ Peter H. Schnugg Date: 9-25-97
---------------------- -------
Peter H. Schnugg
Senior Vice President
"TENANT"
U.S. WIRELESS DATA, INC.
A COLORADO CORPORATION
By: /s/Robert E. Robichaud Date: 9/12/97
---------------------- -------
Robert E. Robichaud
Its: CFO
Print Name: Robert E. Robichaud
EXHIBIT 10.2
RELEASE AND SETTLEMENT AGREEMENT
--------------------------------
This Release and Settlement Agreement ("Settlement Agreement") is made and
entered into effective as of November 1, 1997, by and between U.S. Wireless
Data, Inc, (a Colorado Company) 2200 Powell Street, Emeryville, CA 94608
(referred to as "Company"), and entrenet Group, LLC, 5213 El Mercado Parkway,
Suite D, Santa Rosa, California 95403 (referred to as "entrenet").
RECITALS
- --------
A. Company and entrenet entered into a Engagement Agreement dated June 3,
1997, whereby entrenet agreed to perform certain services for Company
(hereinafter referred to as the "Engagement Agreement").
B. Disputes as to the amounts due to entrenet by Company under the
Engagement Agreement as well as disputes regarding Convertible Notes
and warrants for the acquisition of stock in Company pursuant to the
Engagement have arisen between Company, and entrenet (the "Disputes").
C. The purpose of this Settlement Agreement is to provide an agreement
that will resolve all Disputes between the interested parties.
D. The parties have attempted to negotiate a resolution of these Disputes
which, if not resolved, would likely have resulted in arbitration
and/or litigation.
E. The parties have now agreed to settle the Disputes. The settlement
allows the parties to avoid substantial expenditures, the burden of
further negotiations, and the likelihood of arbitration or litigation,
all on the terms and conditions set forth below.
AGREEMENT
- ---------
NOW, THEREFORE, in consideration of the payments, mutual covenants, warranties
and representations set forth below, the parties hereto do hereby agree to
settle the Disputes among them on the following terms and conditions:
1. Acknowledged Amount Owed. The parties acknowledge and agree that the
entire amount due under the Engagement Agreement from Company to entrenet is
$150,000 in the form of a 10% Convertible Subordinated Note due June 2, 1998 and
$40,000 in the form of 280,000 shares of Common Stock of the Company to which
entrenet acquired a binding fully vested and unconditional contractual right as
of July 25, 1997 (collectively referred to as the "Debt"). Share certificates
representing such Common Stock shall be delivered to entrenet (See * below).
Payment of the Debt will result in full payment and full satisfaction of all
amounts and obligations due entrenet from Company under the Engagement
Agreement.
(*) as soon as practicable following approval of the proposed increase in
Common Stock which will be submitted to shareholders at the Company's next
Annual Meeting of Shareholders.
1
Initial: entrenet /s/ JB Company /s/ EK
-------- ----------
<PAGE>
2. The Corporation's Obligation to Register. If the Corporation at any
time proposes to initiate a registration of its securities under the Securities
Act of 1933, as amended (the "Securities Act") and thereafter to register any of
its securities under the Securities Act (other than a registration effected
solely to implement an employee benefit plan, a transaction to which Rule 145 of
the Commission is applicable or any other form or type of registration in which
Registrable Securities cannot be included pursuant to Commission rule or
practice), it will give written notice to entrenet of its intention to do so. If
such registration is proposed to be on a form which permits inclusion of the
Stock issued to entrenet pursuant to this Settlement Agreement or the Stock
underlying the conversion of this Note issued to entrenet pursuant to this
Settlement Agreement, upon the written request from any Holder within 20 days
after transmittal by the Corporation to the Holder of such notice, the
Corporation will, subject to the limits contained in this Section, use its best
efforts to cause all such Stock underlying the conversion of this Note to be
registered under the Securities Act and qualified for sale under any relevant
state blue sky law, all to the extent requisite to permit such sale or other
disposition by Holder of the Stock so registered. Notwithstanding any other
provision of this Section, if the underwriter managing such registration
notifies the Holder in writing that market or economic conditions limit the
amount of securities which may reasonably be expected to be sold, Holder will at
a minimum be allowed to register their Stock pro rata based on the ratio of the
total number of shares of Stock to be offered for sale by the Corporation to the
total shares outstanding just prior to the offering. The Corporation and
entrenet will enter into a customary registration agreement setting forth the
terms of such registration at the time the Corporation proposes to register any
shares for entrenet.
3. Termination of Engagement Agreement. Upon execution of this
Settlement Agreement by all parties, the Engagement Agreement shall be deemed
terminated and void as of the effective date of this Settlement Agreement.
Thereafter, no party shall have any further obligation or liability, whether
accrued or potentially to accrue under the Engagement Agreement, including but
not limited to any further obligation by Company to entrenet or its affiliates
for (i) the payment of any monies to entrenet under the Engagement Agreement or
(ii) the issuance of any Company equity.
4. Mutual Release. Except for the provisions of this Settlement
Agreement, all parties to this Agreement on behalf of their representatives,
agents, servants, employees, heirs, successors, administrators, executors,
attorneys, co-partners, co-venturers, insurers, stockholders, predecessors,
officers, directors, shareholders and assigns, hereby forever releases and
discharges all other parties to this Agreement and each of their
representatives, agents, servants, employees, officers, administrators,
executors, co-partners, co-venturers, directors, shareholders, partners, heirs,
successors, assigns, insurers, predecessors, and attorneys of and from any and
all present and future obligations (accrued or unaccrued), claims, demands,
actions, causes of actions, debts, liabilities, agreements, or losses of any
type, whether known or unknown, suspected or unsuspected, fixed or contingent,
which have arisen or may hereafter arise out of or are in any way connected with
any of the following: any claim to monies owed by or equity ownership or rights
to acquire equity ownership in Company, the Engagement Agreement, and the
Disputes (collectively, the "Released Claims").
5. No Disparagement and Covenant Not to Sue. All parties to this
Agreement shall refrain from making any public statements or statements to third
parties which demean any of the other parties to this Agreement or which call
into question the ethics or competence of any of the other parties to this
Agreement. All parties to this Agreement covenant and agree never to commence,
voluntarily aid in any way or prosecute or participate in any way in any action
or proceeding based upon the Released Claims. If any such action or proceeding
is commenced, this Release may be pleaded as a full and complete defense thereto
and/or such conduct shall be deemed a breach of this agreement.
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
6. Section 1542. All parties to this Agreement agree that the waivers
and releases provided for in this Settlement Agreement shall be effective as a
full and final release of and from all matters set forth in this Settlement
Agreement, and, in furtherance of this intention, each party hereby acknowledges
and agrees that it is familiar with and has been advised by legal counsel
concerning the legal effect of California Civil Code Section 1542, which
provides as follows:
A general release does not extend to claims that the creditor does not
know or suspect to exist in his favor at the time of executing this
release, which if known by him, must have materially affected his
settlement to debtor.
7. Advice of Counsel. All parties to this Agreement being aware of, and
having been advised by legal counsel as to the significance and legal effect of
Section 1542 of the California Civil Code, hereby expressly waives and
relinquishes any and all rights and benefits it may have thereunder or under any
other statute or common law principle of similar effect with respect to the
waiver and release provided for in this Settlement Agreement.
8. Unknown Facts. All parties to this Agreement hereby further
acknowledge that they are aware that they may hereafter discover facts in
addition to or different from those which they now know or believe to be true
with respect to the subject matter of this Release, but they agree that it is
each party's intention fully, finally, and forever to settle and release all of
the matters which are the subject of the waiver and release provided for herein,
notwithstanding the discovery hereafter of any additional or different facts
existing as of the date of this Settlement Agreement.
9. Affirmative Covenants. Upon execution of this Agreement by all
parties, or in accordance with Paragraph 1, Company shall deliver 280,000 shares
of the Company's Common Stock and a note in the amount of $150,000 in the form
attached as Exhibit 1, collectively as full payment and satisfaction for all
obligations under the Engagement Agreement. Payment of the 280,000 shares shall
be evidenced by the issuance of an IRS Form W-9 in the amount of $40,000 for the
1997 Calendar Year. Upon payment of the Note in cash or common stock of the
Company as a result of conversion, the Company will issue an IRS Form W-9 in the
amount of $150,000 plus accrued interest for the Calendar Year in which the
payment is made.
10. Availability of Information. entrenet hereby acknowledge that the
Company has made available to us the opportunity to ask questions of, and
receive representations from, management of the Company, concerning the business
and current condition of the Company, and to obtain any additional information,
to the extent the Company possesses such information or can acquire it without
unreasonable effort or expense, necessary to verify the accuracy of the
information provided by the Company.
11. entrenet Representations and Warranties. entrenet represent and
warrant to the Company (and understand that it is relying upon the accuracy and
completeness of such representations and warranties in connection with the
availability of an exemption for the offer and sale of the shares, the
promissory note, and the shares underlying the promissory note (hereafter the
"Securities"), from the registration requirements of applicable federal and
state securities laws) that:
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
a. entrenet understands that entrenet must bear the economic
risk of this investment for an indefinite period of time; that the
Securities have not been registered under the Securities Act of 1933,
as amended (the "1933 Act"), or any state securities laws and,
therefore, cannot be resold unless they are subsequently registered
under the 1933 Act and applicable state securities laws or unless an
exemption from such registration is available; that entrenet may not
resell or otherwise dispose of all or any part of the Securities,
except as permitted by law, including, without limitation, any and all
applicable provisions of this Agreement and any regulations under the
1933 Act and applicable state securities laws; that the Company will
restrict the transfer of the Securities in accordance with the
representations contained in this paragraph; that except as otherwise
provided herein, the Company does not have any present intention of
registering the Securities under the 1933 Act or of supplying the
information which may be necessary to enable us to sell any of the
Securities; and that Rule 144 under the 1933 Act may not be available
as a basis for exemption from registration of any of the shares of
Common Stock issuable hereunder or upon conversion of the promissory
note.
b. entrenet agrees that any certificate representing the
Securities or any component thereof will contain and be endorsed with
the following, or a substantially equivalent, legend:
"The Securities represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act"), and
are "Restricted Securities" as that term is defined in Rule
144 under the Act. The Securities may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the
Company."
c. entrenet is the only party in interest with respect to this
Agreement, and entrenet is acquiring the Securities for investment for
our own account for long-term investment only, and not with an intent
to resell, fractionalize, divide or re-distribute all or any part of
the Securities to any other person.
d. entrenet is California Limited Liability Company whose
members are all U.S. Corporations or individuals that are at least 21
years old and a citizen of the United States. entrenet has such
knowledge and experience in financial and business matters that
entrenet is fully capable of evaluating the merits and risks of the
prospective investment.
e. entrenet acknowledge that the securities offered involve a
high degree of risk and that purchase of the Securities should be only
by persons who can afford to sustain a total loss of their investment.
f. entrenet has consulted with our attorney, accountant or
investment adviser with respect to the investment contemplated hereby
and its suitability for us to the extent that entrenet have deemed
necessary.
4
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
g. entrenet has adequate means of providing for our current
needs and personal contingencies and has no need for liquidity in
connection with this investment. entrenet has the financial ability to
bear the economic risk of this investment.
h. entrenet's overall commitment to investments, which are not
readily marketable, is not disproportionate to its net worth, and its
investment in the Company will not cause such overall commitment to
become excessive.
i. entrenet has evaluated the risks of investing in securities
described herein, and has determined that the Securities are a suitable
investment for it.
1. Mutual Warranties and Representations. Each of the parties
hereto represents and warrants that:
a. It has the right and authority to enter into and execute
this Settlement Agreement;
b. It has not sold, assigned, transferred, conveyed,
hypothecated, encumbered or otherwise disposed of any of its rights
hereunder;
c. It has been represented by independent legal counsel of its
own choice in connection with the negotiation and execution of this
Settlement Agreement and has had adequate opportunity to undertake
whatever due diligence or investigation it deemed necessary to enter
into this Settlement Agreement; and
d. It has not commenced any litigation pending with respect to
the facts, circumstances, matters or events which are the subject
matter hereof except as expressly disclosed herein, and it has not
pledged said rights as security for the performance of any obligation
or otherwise encumbered said rights.
2. No Admission of Liability. Nothing in this Settlement Agreement
constitutes an admission of liability, responsibility or the merit or lack of
merit of any claim or defense on the part of entrenet or the Company.
3. Miscellaneous.
a. Additional Documents. Each of the parties agrees to execute
and deliver, at the request of the other parties, any and all other
documents or other written instruments as may be reasonably necessary
to effectuate this Settlement Agreement.
b. Applicable Law. This Settlement Agreement shall be governed
by and construed in accordance with the laws of the State of California
applicable to contracts between California residents entered into and
to be performed entirely within the State of California.
c. Attorneys' Fees Costs/Breaches. In the event either party
hereto engages the services of an attorney to bring suit to enforce,
interpret, or otherwise construe the whole or any part of this
Agreement, or for damages on account of any breach of covenant
contained herein, or to quiet title, or to enforce any other claim or
cause of action arising out of the circumstances surrounding the
5
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
execution of this Agreement, the prevailing party in any such
litigation shall be entitled to recover from the other, reasonable
attorneys fees and costs incurred therein as part of any judgment
awarded by the court in which such litigation is determined.
d. Counterparts. This Settlement Agreement may be executed in
separate counterparts, each of which may be executed by less than all
of the parties, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument.
e. Descriptive Headings. The headings used herein are
descriptive only and for the convenience of identifying provisions, and
are not determinative of the meaning or effect of any such provisions.
f. Entire Agreement. This Settlement Agreement constitutes the
entire agreement and understanding between the parties with respect to
the subject matters herein and therein, and shall supersede and replace
any prior agreements and understandings, whether oral or written, by
and among them with respect to such matters. The provisions of this
Settlement Agreement may be waived, altered, amended or repealed in
whole or in part only upon the written consent of all parties to this
Settlement Agreement.
g. Notices. All notices, requests, demands, instructions or
other communications required or permitted to be given under this
Settlement Agreement shall be in writing and directed to the parties at
the address set forth below. Such communications shall be deemed to
have been received upon delivery, if delivered personally. If given by
prepaid telegram, or if mailed first-class, postage prepaid, or if
mailed by registered or certified mail, return receipt requested, such
communications shall be deemed to have been received seventy-two (72)
hours after such dispatch. Either party hereto may change the address
to which such communications are to be directed by giving written
notice to the other party hereto of such change in the manner above
provided.
IF for Company: IF for entrenet:
--------------- ----------------
U.S. Wireless Data, Inc. entrenet Group, LLC
Robert Robichaud Timothy F. Jaeger
Chief Financial Officer Chief Financial Officer
2200 Powell Street, Suite 450 5213 El Mercado Parkway, Suite D
Emeryville, CA 94608. Santa Rosa, CA 95403
h. Severability. If for any reason any provision of this
Settlement Agreement shall be determined to be invalid or inoperative,
the validity and effect of the other provisions hereof shall not be
affected thereby, provided that no such severability shall be effective
if it causes a material detriment to any party.
i. Successors and Assigns. Subject to any provisions herein
with regard to assignment, all covenants and agreements herein shall
bind and inure to the benefit of the respective heirs, executors,
administrators, successors and assigns of the parties hereto.
j. Survival. The representations, warranties, covenants and
agreements made herein shall survive the execution and delivery at this
Settlement Agreement.
6
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
k. Construction. The parties hereto and their counsel have
reviewed this Settlement Agreement and specifically agree that any rule
of construction, to the effect that ambiguities are to be resolved
against the drafting party, shall not apply to the interpretation of
this Settlement Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement
effective as of the date first written above.
7
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
CAUTION: THIS AGREEMENT CONTAINS A RELEASE. READ BEFORE SIGNING.
- -----------------------------------------------------------------
U.S. Wireless Data, Inc. entrenet Group, LLC
By: /s/ Evon Kelly By: /s/ John Billington
------------------ ----------------------
Evon Kelly John Billington
Chief Executive Officer Vice President
Date Executed: 11-26-97 Date Executed: 11-26-97
-------- --------
8
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
Exhibit 1
---------
THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY
STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED ASSIGNED OR HYPOTHECATED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING THIS
NOTE AND/OR SUCH SECURITIES, OR THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR
THE HOLDER OF THE NOTE AND/OR SUCH SECURITIES SATISFACTORY TO THE CORPORATION
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND THE
QUALIFICATION REQUIREMENTS UNDER STATE LAW.
U.S. WIRELESS DATA, INC.
10%, UNSECURED and NONASSIGNABLE,
CONVERTIBLE SUBORDINATED PROMISSORY NOTE
DUE JUNE 2, 1998
$150,000 June 3, 1997
1) Obligation. FOR VALUE RECEIVED, U.S. Wireless Data, Inc, a Colorado
corporation (hereinafter called the "Corporation"), hereby promises to pay
entrenet Group LLC (hereinafter called the "Holder") the principal sum of
One Hundred Fifty Thousand Dollars ($150,000) payable in one payment of
principal and all accrued interest due on June 2, 1998 (the "Payment
Date"), unless earlier converted pursuant to the terms of this Debenture.
Interest shall accrue on this Debenture at the rate of ten percent (10%)
per annum (based on a 360-day year, 30-day month) until payment in full of
principal.
2) Medium of Payment. The principal and interest on this promissory note (this
"Note") are payable in lawful money of the United States of America at the
Holder's address set forth below, or at such other address as the Holder
hereof may from time to time designate to the Corporation in writing.
3) Prepayment. The Corporation may not prepay this Note in whole or in part at
any time prior to due date of this Note.
1
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
4) Subordination.
a. Senior Indebtedness. The payment of principal and interest on this
Note is subordinated to the prior payment in full of all Senior
Indebtedness of the Corporation, whether outstanding on this date or
thereafter. Senior Indebtedness is defined as the principal of, and premium
and interest on, indebtedness of the Corporation for money borrowed from,
or the payment of which has been guaranteed to, persons, firms or
corporations which engage in lending money, including, but without
limitation, banks, trust and charitable trusts, pension trusts,
governmental lenders and other investing organizations, evidenced by notes
or similar obligations.
b. Accelerated Maturity. If this Note is declared due and payable
before its express maturity because of the occurrence of an event of
default as defined in this Note, the Holder will be entitled to payment
only after there is first paid in full on the then outstanding Senior
Indebtedness all principal and interest then due and payable by
acceleration or otherwise, or after payment shall be provided for in a
manner satisfactory to the holders of such Senior Indebtedness.
c. No Reduction in Corporation's Obligations. No present or future
holder of Senior Indebtedness will be prejudiced by the Holder's right to
enforce this Note by any act or failure to act on the part of the
Corporation. The provisions of this Section 4 are solely for the purpose of
defining the relative rights of the holders of Senior Indebtedness on the
one hand and the Holder of this Note on the other hand, and nothing in this
Note will impair as between the Corporation and the Holder, the
Corporation's obligation to pay to the Holder the principal and interest in
accordance with its terms, nor will anything in this Note prevent the
Holder from exercising all remedies otherwise permitted by applicable law
upon default hereunder subject only to the rights, if any, under this
Section of holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to the Holder.
5) Conversion.
a. Timing. This Note is convertible into fully paid and nonassessable
shares of the Corporation's Common Stock, at the option of the Holder, at
any time and from time to time thereafter in whole or in part during the
term of this Note. The Corporation agrees to reserve sufficient shares for
issuance during the remaining term of this Note so as to be able to honor
the exercise of the conversion privilege, subject to the Corporations
increase in Common Stock to be presented at the next Shareholders'
Meeting..
b. Conversion Price. The Note shall be convertible into the
Corporation's Common Stock at a price of fifty cents ($0.50) per share. The
Conversion is payable by the cancellation of principal and any accrued
interest on this Note.
c. Notice of Conversion and Rights. In order to exercise the
conversion privilege granted to the Holder of this Note, the Holder will
surrender this Note to the
2
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
Corporation with duly executed Notice of Conversion specifying the portion
of the principal amount and any accrued and unpaid interest of the Note to
be converted. If the Common Stock into which this Note is convertible is to
be issued in a name or names other than that of the Holder, the Notice of
Conversion must bear or be accompanied by proper endorsement or assignment
of this Note. The Common Stock issued upon the conversion of this Note will
not be entitled to any dividend declared upon such stock prior to the date
of the receipt by the Corporation of such Notice of Conversion, and upon
such conversion, the Holder will not be entitled to any interest on this
Note not due and payable at or prior to the date such Notice of Conversion
is received by the Corporation.
d. Surrender and Cancellation of Note. This Note will be deemed to have
been surrendered for conversion and converted at the close of business on
the date on which it is received by the Corporation or a designated agent
of the Corporation with the duly executed Notice of Conversion, and on such
receipt, the Corporation will promptly issue and deliver to the person or
persons entitled a certificate or certificates of its Common Stock
evidencing the number of shares into which this Note will have been
converted, together with a new Note representing the unconverted and
unredeemed portion, if any, of the Note so converted. The new Note shall be
payable to the Holder and dated as of the date to which interest has been
paid on the converted Note. Such new Note shall otherwise be identical to
the converted Note. The Corporation will then cancel this Note. Only whole
shares of the Corporation's Common Stock will be issued on any conversion.
In the event that Holder of this Note is entitled to a faction of a share
of Common Stock, the Corporation shall instead pay such holder the cash
equivalent of that fractional share, computed by multiplying the fraction
by the applicable Conversion Price.
6) The Corporation's Obligation to Register. If the Corporation at any time
proposes to initiate a registration of its securities under the Securities
Act of 1933, as amended (the "Securities Act") and thereafter to register
any of its securities under the Securities Act (other than a registration
effected solely to implement an employee benefit plan, a transaction to
which Rule 145 of the Commission is applicable or any other form or type of
registration in which Registrable Securities cannot be included pursuant to
Commission rule or practice), it will give written notice to Holder of this
Note of its intention to do so. If such registration is proposed to be on a
form which permits inclusion of the Stock underlying the conversion of this
Note, upon the written request from any Holder within 20 days after
transmittal by the Corporation to the Holder of such notice, the
Corporation will, subject to the limits contained in this Section, use its
best efforts to cause all such Stock underlying the conversion of this Note
to be registered under the Securities Act and qualified for sale under any
relevant state blue sky law, all to the extent requisite to permit such
sale or other disposition by Holder of the Stock so registered.
Notwithstanding any other provision of this Section, if the underwriter
managing such registration notifies the Holder in writing that market or
economic conditions limit the amount of securities which may reasonably be
expected to be sold, Holder will at a minimum be allowed to register their
Stock pro rata based on the ratio of the total number of shares of Stock to
be offered for sale by the Corporation to the total shares outstanding just
3
Initial: entrenet /s/ JB Company /s/ EK
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<PAGE>
prior to the offering. The Corporation and entrenet will enter into a
customary registration agreement setting forth the terms of such
registration at the time the Corporation proposes to register any shares
for entrenet.
7) Default.
a. Events of Default. Without notice, except as expressly provided
herein, the following will be deemed to be events of default:
i. Covenants. Failure on the part of the Corporation to
observe or perform any of the covenants or agreements on the part
of the Corporation contained in this Note after (A) written notice
of such failure, requiring the Corporation to remedy the same, has
been given to the Corporation by the Holder, and (B) such failure
has continued without remedy for a period of thirty days; or
ii. Receivership. The entry of a decree or order of a court
having jurisdiction in the matter for the appointment of a
receiver and such decree or order has continued in force
undischarged or unstayed for a period of one hundred twenty days;
or
iii.Bankruptcy. The Corporation institutes proceedings to be
adjudged a voluntary bankrupt, or consents to the filing of
bankruptcy proceedings against it, or files a petition or answer
or consent seeking reorganization under the National Bankruptcy
Act or any other similar or applicable federal or state law, or
consents to the filing of any such petition, or consents to the
appointment of a receiver, liquidator, or trustee in bankruptcy,
or makes a general assignment for the benefit of creditors, or
admits in writing its inability to pay its debts generally as they
become due; or
iv. Attachment. Any judgment, writ, or warrant of attachment
or of any similar process in an amount in excess of $100,000 is
entered or filed against the Corporation or against any of its
property or assets and remains unpaid, unvacated, unbonded or
unstayed for a period of 120 days.
b. Acceleration of Maturity. If any one or more of the foregoing events
of default occurs, the Holder, by notice in writing to the Corporation, may
declare the principal of and all accrued interest on this Note then
outstanding immediately due and payable without further notice or demand;
provided, however, that at any time after such declaration the same may be
rescinded and such event of default may be waived by the Holder by written
notice to the Corporation.
c. Payment on Acceleration. Upon any such acceleration of the maturity
of this Note, the Corporation will within 90 days pay to the Holder the
entire principal balance unpaid on this Note, together with accrued
interest thereon to the date of such payment.
d. Failure to Pay. If the Corporation fails to make payment to the
Holder as provided in the preceding Subsection (Payment on Acceleration),
the Holder will be entitled and empowered to take such measures as may be
appropriate to enforce the
4
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<PAGE>
Corporation's obligations under this Note, by judicial proceedings or
otherwise. If suit is brought to enforce payment of this Note, the
Corporation promises to pay reasonable attorneys' fees to be fixed by the
Court.
8) Anti-dilution. If the Corporation elects to combine or subdivide its Common
Stock, the ratio used to determine the number of new shares to be issued in
exchange for the existing shares will be applied to the number of shares
into which this Note may be converted as provided in this Note, and the
conversion price will be appropriately adjusted.
9) No Assignment. This Note is unsecured, non-transferable and non-assignable.
Holder may not sell, assign, pledge, hypothecate or otherwise transfer this
Note
10) Notices. Any communication or notices may be delivered or mailed to the
offices of the Corporation at its principal place of business and to the
Holder at the Holder's address set forth below, or to such other addresses
as the Corporation, or Holder, may designate in writing from time to time.
11) Applicable Law. This Note shall be governed by and construed in accordance
with the laws of the State of California applicable to contracts between
California residents entered into and so be performed entirely within the
State of California.
Executed as of June 3,1997
By:
-------------------
Evon Kelly
Chief Executive Officer
Initial: entrenet /s/ JB Company /s/ EK
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The name and address of the registered Holder of this Note is:
entrenet Group LLC
5213 El Mercado Parkway, Suite D
Santa Rosa, California 95403
