-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, A+X24jmcO/OfB6y9FSpeER2tO5x76a8mfxMHhNqPGypbT05Ye9Pn4ONBzrCwNgH1 EYCcMZLFUG2thCBQ7u6/YA== 0000927797-98-000032.txt : 19980319 0000927797-98-000032.hdr.sgml : 19980319 ACCESSION NUMBER: 0000927797-98-000032 CONFORMED SUBMISSION TYPE: 10QSB/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19971231 FILED AS OF DATE: 19980318 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: U S WIRELESS DATA INC CENTRAL INDEX KEY: 0000895716 STANDARD INDUSTRIAL CLASSIFICATION: CALCULATING & ACCOUNTING MACHINES (NO ELECTRONIC COMPUTERS) [3578] IRS NUMBER: 841178691 STATE OF INCORPORATION: CO FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10QSB/A SEC ACT: SEC FILE NUMBER: 000-22848 FILM NUMBER: 98568432 BUSINESS ADDRESS: STREET 1: 2200 POWELL STREET STREET 2: SUITE 450 CITY: EMERYVILLE STATE: CA ZIP: 94608 BUSINESS PHONE: 5105962025 MAIL ADDRESS: STREET 1: 2200 POWELL STREET STREET 2: SUITE 450 CITY: EMERYVILLE STATE: CA ZIP: 94608 10QSB/A 1 AMENDED QUARTERLY REPORT FOR DEC. 31, 1997 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 -------- ---------- (State of incorporation) (IRS Employer Identification No.) 2200 Powell Street, Suite 450 Emeryville, California 94608 ---------------------------- (Address of principal executive offices, including zip code) (510) 596-2025 -------------- (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_ 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. 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 --------------------------- ------------------------ Chief Executive Officer February 20, 1998 By: \s\ Robert E. Robichaud --------------------------- ------------------------ Chief Financial Officer EX-4.1 2 CONVERTIBLE SUBORDINATED PROMISSORY NOTE 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. 1 Initial: entrenet /s/ JB Company /s/ EK -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 ------------------- Evon Kelly Chief Executive Officer 5 Initial: entrenet /s/ JB Company /s/ EK -------- ---------- 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 EX-10.1 3 OFFICE LEASE EXHIBIT 10.1 OFFICE LEASE SPIEKER PROPERTIES, L.P., A California limited partnership Landlord and U.S. WIRELESS DATA, INC. A Colorado corporation Tenant 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 WATERGATE OFFICE LEASE ---------------------- 1. PARTIES: BASIC LEASE PROVISIONS; DEFINED TERMS ---------------------------------------------- 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 ------- 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. 2. PREMISES: COMMON AREAS; TENANT PARKING -------------------------------------- 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 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 --------------------------------------------------- 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 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 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 ---- 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. 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 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 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 ---------------------------------------------- 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 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 ----------------------- 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. (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. 10. INSURANCE --------- 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. (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. 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 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 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; (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 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. 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. 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 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; (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; (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. 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 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 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 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 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 EX-10.2 4 RELEASE AND SETTLEMENT AGREEMENT 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -------- ---------- 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 -----END PRIVACY-ENHANCED MESSAGE-----