<PAGE>
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTER ENDED SEPTEMBER 30, 1997 COMMISSION FILE NUMBER: 0-9628
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM [ ] TO [ ]
ANCHOR PACIFIC UNDERWRITERS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-1687187
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1800 SUTTER STREET, SUITE 400 94520
CONCORD, CALIFORNIA (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (510) 682-7707
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Common stock, $.02 par value
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. [X]Yes [ ] No
As of September 30, 1997, the Registrant had 4,690,839 shares of common
stock outstanding.
This document is comprised of 102 pages
================================================================================
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC.
INDEX
<TABLE>
<S> <C>
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements:
Consolidated Balance Sheets, September 30, 1997 (unaudited) and
December 31, 1996 ...................................................................... 1
Consolidated Statements of Operations for the nine months and quarters ended
September 30, 1997 and 1996 (unaudited)................................................. 3
Consolidated Statements of Shareholders' Equity for the nine months ended September
30, 1997 (unaudited) and year ended December 31, 1996................................... 4
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1997 and 1996 (unaudited)........................................... 5
Notes to Consolidated Financial Statements ............................................. 7
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations .................................................... 10
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings....................................................................... 17
ITEM 2. Changes in Securities................................................................... 17
ITEM 3. Defaults Upon Senior Securities......................................................... 17
ITEM 4. Submission of Matters to a Vote of Security Holders..................................... 17
ITEM 5. Other Information....................................................................... 17
ITEM 6. Exhibits and Reports on Form 8-K........................................................ 17
</TABLE>
<PAGE>
PART I - FINANCIAL INFORMATION
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
(unaudited)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents - corporate funds $ 138,685 $ 151,765
Cash and cash equivalents - brokerage
fiduciary funds 1,421,142 977,086
Cash and cash equivalents - third-party
administration fiduciary funds 2,764,983 3,580,793
Accounts receivable (less allowance
for doubtful accounts of $40,882 and $32,438
in 1997 and 1996) 924,702 1,309,921
Prepaid expenses and other current assets 275,466 244,086
---------- -----------
Total current assets 5,524,978 6,263,651
---------- -----------
Property and equipment 3,033,013 2,976,497
Less accumulated depreciation and amortization (2,384,246) (2,155,300)
----------- -----------
648,767 821,197
----------- -----------
Other assets:
Goodwill, net 1,828,953 1,903,729
Intangible assets, net 1,041,518 1,139,467
Deferred compensation 206,784 257,784
Other 148,988 125,611
----------- -----------
3,226,243 3,426,591
----------- -----------
Total assets $ 9,399,988 $10,511,439
----------- -----------
</TABLE>
See accompanying notes.
1
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (CONTINUED)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
--------------- ------------
(unaudited)
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Cash and cash equivalents - third-party
administration fiduciary funds $ 2,764,983 $ 3,580,793
Net premiums payable - insurance companies 2,082,779 2,037,749
Accounts payable and accrued expenses 584,440 438,208
Short-term borrowings 1,562,500 1,395,000
Current portion of long-term debt 260,000 425,110
Current portion of long-term liabilities 766,734 604,398
----------- -----------
Total current liabilities 8,021,436 8,481,258
----------- -----------
Long-term liabilities 505,821 773,930
----------- -----------
Long-term debt, including $220,000 in 1997 and
1996, owed to related parties 71,339 149,020
----------- -----------
Shareholders' equity:
Preferred stock - $.02 par value; 2,000,000 shares
authorized; none issued and outstanding
Common stock - $.02 par value; 16,000,000
shares authorized; 4,690,839 and 4,362,837
shares issued as of 9/30/97 and 12/31/96,
respectively 93,817 87,256
Additional paid-in capital 4,215,649 3,925,508
Accumulated deficit (3,508,074) (2,905,533)
----------- -----------
Total shareholders' equity 801,392 1,107,231
----------- -----------
Total liabilities and shareholders' equity $ 9,399,988 $10,511,439
----------- -----------
</TABLE>
See accompanying notes.
2
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Quarters
Ended September 30, Ended September 30,
------------------------- -------------------------
1997 1996 1997 1996
<S> <C> <C> <C> <C>
Revenues:
Commissions, fees and other income $6,944,887 $5,990,112 $2,922,912 $1,903,701
Interest Income 60,591 81,194 18,456 21,815
---------- ---------- ---------- ----------
Total revenue 7,005,478 6,071,306 2,941,368 1,925,516
Operating expenses:
Salaries, commissions and employee
benefits 4,678,236 4,094,131 1,881,939 1,331,075
Selling, general and administrative
expenses 2,639,766 2,438,242 1,070,007 831,125
---------- ---------- ---------- ----------
7,318,002 6,532,373 2,951,946 2,162,200
---------- ---------- ---------- ----------
(312,524) (461,067) (10,578) (236,684)
Other income (expense):
Amortization of goodwill &
intangible assets (172,725) (282,061) (53,429) (95,160)
Interest (152,152) (279,124) (52,823) (76,931)
Other 39,330 53,509 24,028 16,065
---------- ---------- ---------- ----------
Total other income (expense) (285,547) (507,676) (82,224) (156,026)
---------- ---------- ---------- ----------
Loss before income taxes (598,071) (968,743) (92,802) (392,710)
Provision for income taxes 4,470 4,800 - -
---------- ---------- ---------- ----------
Net loss $ (602,541) $ (973,543) $ ( 92,802) $ (392,710)
---------- ---------- ---------- ----------
Net loss per common and
common equivalent share $ (0.13) $ (0.26) $ (0.02) $ (0.11)
---------- ---------- ---------- ----------
Weighted average number of
common and common equivalent
shares outstanding 4,568,525 3,692,750 4,644,277 3,692,750
---------- ---------- ---------- ----------
</TABLE>
See accompanying notes
3
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Additional
Common Stock Paid-In Accumulated
Shares Amount Capital Deficit Total
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at December 31,
1995 3,674,501 $73,490 $2,989,275 $(1,499,733) $ 1,563,032
Stock issued for warrants
exercised 36 1 107 - 108
Debentures exchanged
for stock 644,444 12,889 857,111 - 870,000
Shares issued for
acquisitions 43,928 879 79,120 - 79,999
Canceled stock:
Fractional shares (72) (3) (105) - (108)
Net loss - - - (1,405,800) (1,405,800)
----------------------------------------------------------------------
Balance at December 31,
1996 4,362,837 $87,256 $3,925,508 $(2,905,533) $ 1,107,231
Stock issued for warrants
exercised 567 11 1,691 - 1,702
Stock issued for Private
Offering 327,778 6,557 288,443 - 295,000
Canceled stock:
Fractional shares (343) (7) 7 - -
Net Loss - - - (602,541) (602,541)
----------------------------------------------------------------------
Balance at September 30, 1997
(Unaudited) 4,690,839 $93,817 $4,215,649 $(3,508,074) $ 801,392
----------------------------------------------------------------------
</TABLE>
See accompanying notes
4
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months
Ended September 30,
-----------------------
1997 1996
<S> <C> <C>
OPERATING ACTIVITIES
Net loss $(602,541) $(973,543)
Adjustments to reconcile net loss to
cash provided by (used in) operating activities:
Depreciation and amortization 228,947 216,620
Amortization of goodwill, other intangibles
and organization expenses 172,724 282,061
Changes in operating assets and
liabilities:
Cash and cash equivalents - brokerage (444,056) 195,680
fiduciary funds
Accounts receivable 385,219 (70,971)
Prepaid expenses and other current assets (19,372) 14,536
Other assets (23,377) (1,673)
Deferred compensation 51,000 103,560
Net premiums payable - insurance companies 45,030 (163,369)
Accounts payable and accrued expenses 146,232 (42,828)
Other liabilities - (32,430)
--------- ---------
Net cash used in operating activities (60,194) (472,357)
INVESTING ACTIVITIES
Notes receivable, net (12,008) (2,028)
Purchases of property and equipment (56,516) (72,691)
Purchases of customer list - (314,999)
--------- ---------
Net cash used in investing activities (68,524) (389,718)
</TABLE>
5
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED) (CONTINUED)
<TABLE>
<CAPTION>
Nine Months
Ended September 30,
----------------------
1997 1996
<S> <C> <C>
FINANCING ACTIVITIES
Common stock issued 296,702 -
Debt:
Borrowings 185,000 325,000
Repayment (366,064) (202,819)
Net payments on amounts due on acquisitions - 156,022
--------- ---------
Net cash provided by financing activities 115,638 278,203
--------- ---------
Net decrease in cash and cash equivalents (13,080) (583,872)
Cash and cash equivalents - corporate funds at
beginning of period 151,765 904,781
--------- ---------
Cash and cash equivalents - corporate
funds at end of period $ 138,685 $ 320,909
--------- ---------
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid during the period for:
Interest $ 152,152 $ 279,124
--------- ---------
Income taxes $ 8,526 $ -
--------- ---------
SUPPLEMENTAL NON-CASH FINANCING ACTIVITIES
Common stock - convertible debentures exercised $ - $ 15,000
--------- ---------
</TABLE>
See accompanying notes
6
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
SEPTEMBER 30, 1997
NOTE 1 - BASIS OF PRESENTATION
- ------------------------------
The accompanying unaudited consolidated financial statements of Anchor
Pacific Underwriters, Inc. and its subsidiaries ("Anchor") have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all information and footnotes required by
generally accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments, consisting of normal recurring
accruals, considered necessary for a fair presentation have been included.
Operating results for the nine month period ended September 30, 1997, are not
necessarily indicative of the results that may be expected for the year ending
December 31, 1997. For further information, refer to the consolidated financial
statements and footnotes thereto included in Anchor's Form 10-K for the year
ended December 31, 1996.
The financial statements have been prepared on the going concern
basis. Anchor has reported a net loss during each of the past three fiscal
years. On January 7, 1997, the $1,000,000 bank credit line which Anchor had
maintained expired. Although Anchor was within the covenants of the bank credit
line on the renewal date and was current with all interest payments, the bank
notified Anchor that it would no longer continue to extend the line to Anchor,
under the same terms. Anchor has been successful, as of October 24, 1997, in
replacing the $1,000,000 bank credit line with a new credit facility (the "New
Loan") provided by another bank. The basic terms and conditions of this New
Loan are: (a) $1,600,000 term loan; (b) interest equal to the bank's prime rate
plus 2.5%; (c) five year term; (d) monthly principal payments in installments of
$26,666.67 (Not withstanding the foregoing, 75% of the Company's monthly EBITDA
shall be applied to principal to the extent such percentage of monthly EBITDA is
required to make the scheduled payment of principal. To the extent that 75% of
monthly EBITDA falls short of the required principal payment, the difference
shall be added to the final payment.); and (e) a five year warrant to acquire
95,000 shares of Anchor common stock at a purchase price of $1.75 per share. A
portion of the $1,600,000 proceeds from the New Loan was used to pay off
$975,000 outstanding under the $1,000,000 bank credit line. Another portion of
the proceeds from the New Loan was used to retire and consolidate two unsecured
credit facilities the bank had extended Anchor. The $445,000 outstanding
balance under the $450,000 bank unsecured credit line and the $142,500
outstanding balance under the $150,000 bank unsecured term loan were paid in
full on October 24, 1997.
Anchor's business is not capital intensive and Anchor historically has
had sufficient capital to meet its operating needs. Operating losses incurred
during the last three fiscal years, however, have required Anchor to seek
additional capital. Consequently, Anchor is continuing to seek to raise an
additional $500,000 in equity from the members of the Board of Directors and
other qualified investors to supplement its working capital. As of November 3,
1997, Anchor had raised $305,000, and had oral commitments for an additional
$100,000 in equity financings. Under the terms of this financing Anchor is
issuing common stock at $0.90 per share along with a five year warrant to
purchase stock at $0.90 per share.
Reclassifications
- -----------------
Certain prior years' balances have been reclassified to conform with
the current year presentation.
Recapitalization and Restatement
- --------------------------------
On January 6, 1995, Anchor merged with System Industries, Inc.
("System"). For accounting purposes, the merger was treated as a
recapitalization of Anchor with Anchor as the acquirer (reverse acquisition).
Upon consummation of this merger, shareholders and certain creditors of System
each received one share of Anchor common stock and one warrant to purchase one
share of Anchor common stock at a price of $3.00 for every 42.3291 shares of
issued and outstanding System common stock. Warrants to purchase 194,886 shares
of
7
<PAGE>
common stock expired January 6, 1997, and unissued warrants to purchase
195,789 shares of common stock will expire one year after their issuance. As a
result of the merger, Anchor became a public company.
NOTE 2 - ACQUISITIONS
- ---------------------
To date, acquisitions by Anchor have involved both relatively small
acquisitions of insurance brokerage and administration accounts, as well as
larger acquisitions of insurance brokerage companies, such as Putnam, Knudsen &
Wieking, Inc. ("PKW"), and third-party administrators, such as Benefit
Resources, Inc. ("BRI"). The results of operations from these acquisitions are
included in Anchor's consolidated financial statements from the date of
purchase. Anchor also expects to continue to expand its insurance brokerage and
administration businesses through internal growth. Anchor's third-party
administration services recently obtained commitments with respect to several
new business projects which are expected to increase revenues while avoiding
many of the costs associated with expansion achieved through the purchase of new
businesses.
NOTE 3 - CONTINGENCIES
- ----------------------
Anchor is subject to certain legal proceedings and claims arising in
the ordinary course of its business. It is management's opinion that the
resolution of these claims will not have a material effect on Anchor's
consolidated financial position.
NOTE 4 - SUBORDINATED BRIDGE NOTES AND WARRANT
- ----------------------------------------------
During 1996, Anchor raised $225,000 from five members of the Board of
Directors and other qualified investors through the issuance of 10% Subordinated
Bridge Notes with a Warrant to Purchase Shares of Anchor Common Stock ("Bridge
Notes"). The basic terms of the Bridge Notes were: (a) 10% interest per annum,
paid in arrears; (b) one year term; (c) for every $10,000 of principal invested
the purchaser received a five year warrant to acquire 1,000 shares of Anchor
common stock at a purchase price of $1.75 per share; (d) "piggyback"
registration rights for three years; and (e) subordination provisions that
subordinate the Bridge Notes to Anchor's "Senior Debt" (as defined in the Bridge
Notes). The Bridge Notes are equal in status to the Debentures (see Note 5
below) issued during 1995, which mature in 1997.
In February 1997, Anchor offered the purchasers of said Bridge Notes
an opportunity to either change the terms of the warrants underlying the Bridge
Notes or to participate in the 1997 Offering (see Note 6 below), by exchanging
their Bridge Notes. The basic terms of these two alternatives were: (a) in lieu
of receiving warrants to acquire 1,000 shares of Anchor common stock at a
purchase price of $1.75 per share, for every $10,000 of principal invested, the
purchaser would receive warrants to acquire 2,000 shares of Anchor common stock
at a purchase price of $1.35 per share; or (b) participate in the 1997 Offering
by exchanging the Bridge Notes and receive in return (i) interest at the rate of
10% per annum up to the date of conversion; (ii) Anchor common stock in place of
the Bridge Notes at a price equal to $0.90 per share; and (iii) five year
warrants, equal to the number of shares issued in place of the Bridge Notes,
with the right to purchase Anchor's common stock at a purchase price of $0.90
per share. Purchasers representing $180,000 of said Bridge Note chose
alternative (a) above, and the remaining $45,000 chose alternative (b) above. As
of September 30, 1997, $170,000 remained outstanding under the terms of the
Bridge Notes.
NOTE 5 - 10% CONVERTIBLE SUBORDINATED DEBENTURES
- ------------------------------------------------
In 1995, Anchor issued $370,000 of 10% Convertible Subordinated
Debentures (the "Debentures") and a 10% Convertible Subordinated Debenture,
Series A ("Series A Debenture") for $600,000. In December 1996, Guarantee Life
Insurance Company converted all $600,000 of the Series A Debenture it held into
444,444 shares of Anchor's common stock at $1.35 per share. In addition,
investors holding $270,000 of the Debentures, including seven members of the
Board of Directors, converted their Debentures into 200,000 shares of Anchor's
common stock at $1.35 per share. These conversions saved Anchor approximately
$85,000 in interest payments, reduced outstanding indebtedness by $870,000 and,
in turn, increased shareholders' equity by $870,000. As of September 30, 1997,
$80,000 remained outstanding under the terms of the Debentures. For further
information regarding the Series A Debenture and the Debentures, refer to
Anchor's Annual Report on Form 10-K for the year ended December 31, 1996.
8
<PAGE>
NOTE 6 - 1997 OFFERING
- ----------------------
During first quarter 1997, Anchor commenced raising additional funds
from members of the Board of Directors and other qualified investors through a
private offering which consisted of Anchor common stock along with warrants to
acquire shares of Anchor common stock (the "1997 Offering"). As of November 3,
1997, Anchor had raised $305,000 and had oral commitments for an additional
$100,000 in the 1997 Offering. Anchor intends to utilize a substantial portion
of the proceeds from the 1997 Offering to support current and future working
capital needs of Anchor. The basic terms of the 1997 Offering are: (a) 555,000
shares of Anchor common stock available at a purchase price of $0.90 per share:
(b) five year warrants to acquire one share of Anchor common stock for each
share of Anchor common stock purchased at an exercise price of $0.90 per share;
(c) "piggyback" registration rights for three years; and (d) anti-dilution
protection for stock splits, stock dividends, recapitalizations and
reorganizations. Purchasers of the 1997 Offering, as of November 3, 1997,
consisted of eight members of the Board of Directors and other qualified
investors.
NOTE 7 - COMMITMENTS
- --------------------
On May 5, 1997, Anchor entered into a $10,000 Note ("Note A") with a
member of the Board of Directors to supplement current working capital. The
basic terms of Note A were: (a) 10% interest per annum, paid in arrears; and (b)
nine month term. On August 21, 1997, Note A was repaid in full.
On May 28, 1997, Anchor entered into a $50,000 Note ("Note B") with a
member of the Board of Directors to supplement current working capital. The
basic terms of Note B were: (a) 10% interest per annum, paid in arrears; (b)
three month term; (c) a five year warrant to acquire 30,000 shares of Anchor
common stock at a purchase price of $0.90 per share; and (d) "piggyback"
registration rights for three years. On September 19, 1997, Anchor entered into
a amendment to Note B as to the maturity date (b) above. Under the terms of the
amendment the full principal, plus interest, will be due and payable in three
installments beginning September 15, 1997, in the amount of $15,000, plus
interest; on October 15, 1997, in the amount of $15,000, plus interest; with the
final installment on November 15, 1997 (the "Maturity Date") in the amount of
$20,000, plus interest. As of November 3, 1997, the outstanding balance on
Note B was $20,000.
On July 3, 1997, Anchor obtained a $150,000 bank unsecured term loan
for additional working capital in connection with a new business opportunity in
the Los Angeles Area. This contract, effective July 1, 1997, grants
administrative and servicing responsibilities to Anchor's third-party
administration subsidiary, Harden & Company Insurance Services, Inc. ("Harden").
As of October 24, 1997, said loan was paid in full, as discussed below.
As of October 24, 1997, Anchor obtained a $1,600,000 bank term loan
(the "New Loan") from a bank for the primary purpose of replacing the $1,000,000
bank credit line that Anchor had maintained with another bank. The remainder of
the proceeds were used to retire and consolidate two credit facilities the new
bank had extended Anchor. The $445,000 outstanding balance under the $450,000
bank unsecured credit line and the $142,500 outstanding balance under the
$150,000 bank unsecured term loan were paid in full on October 24, 1997. The
basic terms and conditions of this New Loan are: (i) interest equal to the
bank's prime rate plus 2.5%; (ii) five year term; (iii) monthly principal
payments in installments of $26,666.67; (Notwithstanding the foregoing, 75% of
the Company's monthly EBITDA shall be applied to principal to the extent such
percentage of monthly EBITDA is required to make the scheduled payment of
principal. To the extent that 75% of monthly EBITDA falls short of the required
principal payment, the difference shall be added to the final payment.) and (iv)
a five year warrant to acquire 95,000 shares of Anchor common stock at a
purchase price of $1.75 per share.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
BACKGROUND
Anchor was organized in 1986 as a California general partnership for the
specific purpose of acquiring Harden & Company Insurance Services, Inc.
("Harden"), a third-party employee benefits administrator. Anchor was
reorganized as a private California corporation in March 1987, and became a
public reporting Delaware corporation in January 1995.
Since its inception, Anchor has expanded its insurance and financial
service capabilities through internal growth as well as a series of
acquisitions. From 1986 through 1990, Anchor, through Harden, focused on
providing administrative services for group insurance benefit plans. In 1990,
Anchor began to diversify its business by providing property, casualty and
workers' compensation insurance products and services, as well as offering
market studies and program analysis for certain non-profit associations who had
endorsed Anchor's products.
From 1990 through 1992, Anchor expanded its property and casualty
business by: (a) acquiring certain assets, including insurance brokerage
accounts, from four property and casualty brokerage firms; and (b) organizing
Anchor Pacific Premium Finance Company ("APPFCO"), to complement its property
and casualty business by providing premium financing to Anchor's clients.
Effective May 30, 1997, Anchor dissolved APPFCO as a result of its inactivity.
As part of its expansion strategy Anchor has made a series of acquisitions,
including the acquisitions of: Benefit Resources, Inc. ("BRI"), a third-party
employee benefits administrator located in Scottsdale, Arizona in August 1994;
Putnam, Knudsen & Wieking, Inc. ("PKW"), a property and casualty insurance
brokerage company located in Oakland, California in October 1994; certain third-
party administration accounts from Dutcher Insurance Agency, Inc. ("Dutcher"),
located in Stockton, California in February 1995; R. L. Ferguson Agency ("RLF"),
a property and casualty insurance brokerage company located in Walnut Creek,
California in March 1996; certain property and casualty accounts from Norman I.
Robins ("Robins"), in April 1996; and certain property accounts from John R.
McPherson ("McPherson"), in May 1996. In July 1997, Harden took over a third-
party administration business, located in the Los Angeles Area, that was
previously serviced by an unrelated third party. In connection with this
expansion Harden hired 34 employees previously employed by the prior
administrator. Anchor will continue to look for opportunities to expand its
insurance brokerage and administration businesses. In this regard, it has
recently obtained commitments for several new business projects which will
enable Anchor to substantially expand revenues through internal growth thereby
avoiding the costs associated with the actual purchase of new business and
related revenues. Contracts for third-party administration services are
expected to generate a substantial increase in new revenues by the end of the
fourth quarter 1997.
RESULTS OF OPERATIONS -- NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
GENERAL
Anchor derives revenues from commissions received in connection with
insurance brokerage activities and from fees received for claims administration
(including underwriting and risk analysis) services. Commissions may be based
on a percentage of gross premiums or may be structured as contingent
commissions, which are generally based on underwriting profits earned by the
insurance carrier over a given period of time. Fees for claims administration
services generally are based on a percentage of premiums collected, or on a per
capita basis. Anchor does not assume any underwriting risk in connection with
any of its business.
Fluctuations in premiums charged by insurance companies may materially
affect commission revenues. During the last nine years, the property and
casualty insurance industry has experienced a "soft market" where the
underwriting capacity of insurance companies expanded, stimulating an increase
in competition and a decrease in premium rates, thereby reducing related
commissions and fees. In addition to the soft market for property and casualty
insurance, workers' compensation reform in California has had the effect of
reducing workers' compensation insurance premiums which, in turn, has resulted
in reduced commissions generated by the sale of related insurance products.
Although some sources in the insurance industry have predicted future premium
increases, the likelihood of rate increases in the near future remains
uncertain. Anchor believes that revenues generated from anticipated future
growth and continued diversification of its business will offset weaknesses in
the property and casualty market.
10
<PAGE>
Historically, inflation has impacted commission revenues by, among other
things, increasing property replacement costs and workers' compensation and
liability claims, thereby causing some clients to seek higher levels of
insurance coverage and, in turn, pay higher premiums. During the past several
years, the United States has experienced very low rates of inflation along with
gradual business expansion. Consequently, inflation has had minimal impact on
insurance prices in the United States during the past several years.
At times, client uncertainty concerning the scope and direction of
health care reform, may also affect Anchor's business. Anchor believes that its
expertise in two areas frequently identified in health care reform proposals
(managed care and managed competition), combined with its strategy of targeting
middle market clients, leaves it well positioned to operate effectively in a
managed care and managed competition environment. Anchor also believes that in
the current political environment, the United States will experience
incremental, rather than sudden comprehensive changes in health care
regulations. It is not possible at this time, however, to predict the effect
that any health care legislation will have on Anchor's business condition or
operations. Anchor is unaware of any current regulatory proposals that could
have a material effect on its liquidity, capital resources or operations.
Other outside factors may have a significant impact on Anchor's
operations. For example, the insurance carrier which previously offered the
product that accounted for 51% of Harden and BRI's, and 27% of Anchor's, overall
third-party administration revenues in 1996 informed Harden and BRI in the third
quarter of 1996, that as a result of changes in its business strategy, it would
discontinue offering such an insurance product by the end of February 1997.
Harden and BRI subsequently entered into a multi-year, exclusive
contract with an A- (Excellent) rated insurance carrier to underwrite the risk
and provide a replacement product for Anchor's third-party administration
services. This contract became effective December 1, 1996. The transition to
the new insurance carrier has been less disruptive for Harden and BRI's clients
than an earlier transition to a new carrier in late 1995 because the new
insurance carrier fully assumed all policies in California and a majority of
policies in Arizona thereby avoiding the loss of accounts which Harden and BRI
experienced earlier. The impact on Harden and BRI's revenue has been minimal.
The new replacement insurance carrier is a subsidiary of the largest HMO
in Nevada. Management believes that the new insurance carrier will enable
Anchor to provide the small group medical insurance market with stronger managed
care products. In addition, the replacement insurance carrier's business
strategy is to aggressively market group health products in a multi-state
distribution system through an exclusive multi-year contract with Harden and BRI
in California and Arizona. The reaction of the Harden and BRI distributors
continues to be very favorable and the change has been widely accepted. Harden
and BRI began to receive revenues from this new business in January 1997. In
addition, effective July 1, 1997, the same insurance carrier purchased a
significant volume of business from another insurance carrier in California. The
new insurance carrier then entered into a contract with Harden to provide third-
party administration services to this business which has the potential to
substantially increase Harden's revenues.
Anchor continues to take steps to strengthen its sales management by
hiring additional seasoned sales and marketing executives. Product development
and new product sales continue to be a high priority, as does geographical
diversification into other western states and marketing territories. Marketing
for new business coinciding with the release of new products by Harden and BRI
began in 1996.
REVENUES
TOTAL REVENUES. Total revenues for the nine months ended September 30,
1997, were $7,005,478, an increase of $934,172 or 15.4%, as compared to
$6,071,306 in revenues for the same period in 1996. The increase in revenue in
this nine month period was primarily due to the increase in fee income derived
from third-party administration services generated from the new insurance
carrier as discussed above.
Commissions and fees make up substantially all of Anchor's revenues.
The following table sets forth the percentages of Anchor's revenues attributable
to insurance brokerage services (for which commissions are generated), and
third-party administration, underwriting and risk analysis services (for which
fees are generated), for the nine months ended September 30, 1997, 1996 and
1995. The percentage of Anchor's revenues attributable to premium finance
services are no longer included in the following table inasmuch as the premium
finance
11
<PAGE>
services was dissolved effective as of May 30, 1997, due to its
inactivity.
<TABLE>
<CAPTION>
===========================================================
NINE MONTHS ENDED SEPTEMBER 30, 1997 1996 1995
===========================================================
<S> <C> <C> <C>
Insurance Brokerage Commissions 34% 44% 41%
- -----------------------------------------------------------
Third-Party Administration Fees 66% 56% 59%
- ----------------------------------------------------------
Total 100% 100% 100%
==========================================================
</TABLE>
Harden and BRI have recently entered into a multi-year, exclusive
contract with a new insurance carrier. Because this new relationship presents
new growth opportunities, Anchor expects that the percentage of its revenues
that are derived from third-party administration services will continue to
increase during 1997.
COMMISSIONS. Commission revenues from insurance brokerage services
are reported net of sub-broker commissions and generally are recognized as of
the effective date of the insurance policy, except for commissions on
installment premiums which are recognized periodically as billed. Commissions
for the first nine months of 1997 were $2,346,711, a decrease of $256,131 or
9.8%, compared to $2,602,842 of commissions for the same period of 1996. A net
loss of business at PKW accounted for all of the decrease.
FEES. Fees from Anchor's third-party administration (including
underwriting and risk analysis) services for the nine months ended September 30,
1997, were $4,598,086, an increase of $1,212,032 or 35.8%, as compared to
$3,386,054 in fees for the same period in 1996. This increase in fee income is
the result of new business generated from projects associated with the new
insurance carrier, as discussed above, and administrative fees generated from
the release of new products.
Fee revenues generated by Anchor in the third quarter of 1997 from
third-party administration services consist of revenues generated by Harden and
BRI. Harden's third-party administration revenues are substantially derived
from: (a) an insurance product underwritten by one insurance carrier, which is
A- (Excellent); and (b) the administration of insurance programs underwritten by
various insurance carriers for a number of self-insured employers. The
insurance product, described in (a) above, accounted for approximately 24% of
Harden's revenues (or approximately 11% of Anchor's total revenues) in the first
nine months of 1997, and revenues related to the administration of self-insured
programs, described in (b) above, accounted for approximately 48% of Harden's
revenues (or approximately 21% of Anchor's total revenues) in the first nine
months of 1997. Self-insurance is a program in which a client assumes a
manageable portion of its insurance risks, usually (although not always) placing
the less predictable and larger loss exposure with an excess insurance carrier.
A significant portion of BRI's fee revenues generated from new clients relate to
an insurance product underwritten by the same A- (Excellent) rated insurance
carrier.
INTEREST INCOME. Interest income consists of interest earned on
insurance premiums and other funds held in fiduciary accounts and interest
earned on investments. Interest income was $60,591 and $81,194 for the nine
months ended September 30, 1997 and 1996, respectively.
EXPENSES
TOTAL EXPENSES. Total operating expenses for the nine months ended
September 30, 1997, were $7,318,002, an increase of $785,629 or 12% as compared
to the operating expenses of $6,532,373 for the same period in 1996. As
discussed below, the increase in total expenses resulted primarily from an
increase in selling, general and administration expenses and employee
compensation and benefits resulting from increased third-party administration
services business at both Harden and BRI.
EMPLOYEE COMPENSATION AND BENEFITS. Employee compensation and
benefits for the nine months ended September 30, 1997, were $4,678,236, an
increase of $584,105 or 14.3% as compared to $4,094,131 for the same period in
1996. The increase related primarily to greater staffing needs required to
service new third-party administration projects at both Harden and BRI.
12
<PAGE>
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses were $2,639,766 and $2,438,242 for the nine months ended
September 30, 1997 and 1996, respectively. The $201,524 or 8.3% increase in
1997, as compared to 1996, resulted primarily from an increase in expenses as a
result of the increased third-party administration services business at both
Harden and BRI. General and administrative expenses include rent, travel,
insurance, postage, telephone, supplies and other miscellaneous expenses.
INTEREST EXPENSE. Interest expense totaled $152,152 and $279,124, for
the nine months ended September 30, 1997 and 1996, respectively. The decrease
in expense of $126,972 in the nine months ended September 30, 1997, as compared
to the same period in 1996, resulted from the termination of services of an
investment banker and the conversions of the $600,000 Series A Debenture and
$270,000 of the Debentures. Anchor will continue to see additional expense
savings in 1997 as a result of the conversions of the Debentures. For further
details refer to Note 5, above.
AMORTIZATION OF GOODWILL AND OTHER INTANGIBLES. Goodwill represents
the excess of the cost of acquisitions over the fair value of net assets
acquired. Other intangibles include covenants not to compete, customer lists
and other contractual rights. Amortization of goodwill and other intangibles
was $172,725 and $282,061, for the nine months ended September 30, 1997 and
1996, respectively. The decrease in amortization and other intangibles is a
result of goodwill being fully amortized at Harden as of December 31, 1996.
INCOME TAXES
Anchor's expense for income taxes was $4,470 and $4,800 for the nine
month periods ended September 30, 1997 and 1996, respectively. An analysis of
Anchor's provision for income taxes is presented in Note 9 of the Notes to
Consolidated Financial Statements in Anchor's Form 10-K for the year ending
December 31, 1996.
RESULTS OF OPERATIONS - QUARTERS ENDED SEPTEMBER 30, 1997 AND 1996
REVENUES
TOTAL REVENUES. Total revenues for the three months ended September
30, 1997, were $2,941,368, an increase of $1,015,852 or 52.8%, as compared to
$1,925,516 of revenues for the same period in 1996. The increase resulted
primarily from new business from third-party administration services at both
Harden and BRI. Anchor's revenues vary from quarter to quarter as result of the
timing of policy renewals and new/lost business production, whereas expenses are
fairly uniform throughout the year.
COMMISSIONS. Commission revenues for the three months ended September
30, 1997, were $719,156, a decrease of $132,817 or 15.6%, as compared to
$851,973 of commissions for the same period of 1996. A net loss of business at
PKW accounted for all of the decrease.
FEES. Fees from Anchor's third-party administration (including
underwriting and analysis) services for the three months ended September 30,
1997, were $2,203,756, an increase of $1,152,661 or 109.7% as compared to
$1,051,095 in fees for the same period in 1996. The increase in fee income is
the result of new third-party administration services business generated from
projects associated with the new insurance carrier, as discussed above, and
administrative fees generated from the release of new products.
INTEREST INCOME. Interest income was $18,456 and $21,815 for the
three months ended September 30, 1997 and 1996, respectively. The decrease in
interest income in the second quarter of 1997, as compared to 1996, resulted
primarily from a smaller amount of insurance premiums and other funds held in
fiduciary accounts.
EXPENSES
TOTAL EXPENSES. Total operating expenses for the three months ended
September 30, 1997 were $2,951,946, an increase of $789,746 or 36.5%, as
compared to operating expenses of $2,162,200 for the same period in 1996. The
increase resulted primarily from the increase in employee compensation and
benefits, and general and administrative expenses as a result of the increased
third-party administration services business at both
13
<PAGE>
Harden and BRI.
EMPLOYEE COMPENSATION AND BENEFITS. Employee compensation and
benefits for the three months ended September 30, 1997 were $1,881,939, an
increase of $550,864 or 41.4%, as compared to $1,331,075, for the same period in
1996. The increase related primarily to the addition to staff to service new
business projects from Anchor's third-party administration services at Harden
and BRI.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses were $1,070,007 and $831,125 for the three months ended
September 30, 1997 and 1996, respectively. The $238,881 or 28.7%, increase in
the third quarter of 1997, as compared to the same period in 1996 resulted
primarily from an increase in expenses as a result of the increased third-party
administration services business at both Harden and BRI. General and
administrative expenses include rent, travel, insurance, postage, telephone,
supplies and other miscellaneous expenses.
INTEREST EXPENSE. Interest expense was $52,823 and $76,931 for the
three months ended September 30, 1997 and 1996, respectively. The decrease in
interest expense in 1997, as compared to 1996, resulted primarily from the
termination of services of an investment banker and the conversions of the
$600,000 Series A Debenture and $270,000 of the Debentures. Anchor will
continue to see additional expense savings in 1997 as a result of the
conversions of the Debentures. For further details refer to Note 5, above.
AMORTIZATION OF GOODWILL AND OTHER INTANGIBLES. Goodwill represents
the excess of the cost of acquisitions over the fair value of net assets
acquired. Other intangibles include covenants not to compete, customer lists
and other contractual rights. Amortization of goodwill and other intangibles
was $53,429 and $95,160 for the three months ended September 30, 1997 and 1996,
respectively. The decrease in amortization and other intangibles is a result of
goodwill being fully amortized at Harden as of December 31, 1996.
INCOME TAXES
Anchor's minimum annual required tax payment due was reported during
the first quarter of 1997 and 1996. Therefore, there was no income tax expense
reported for the three month periods ended September 30, 1997 and 1996.
LIQUIDITY AND CAPITAL RESOURCES
Anchor's business is not capital intensive and Anchor historically has
had sufficient capital to meet its operating needs. Anchor reported net cash
flows (used in) operations of $(60,194) for the nine months ended September 30,
1997, compared to net cash flows (used in) operations of $(472,357) for the nine
months ended September 30, 1996. During 1997, Anchor met its operating and
capital needs from various sources, including borrowing under its existing
credit agreements and the use of proceeds received from the 1997 Offering. See
Note 6, above.
During 1996, Anchor raised $225,000 from five members of the Board of
Directors and other qualified investors through the issuance of 10% Subordinated
Bridge Notes with a Warrant to Purchase Shares of Anchor Common Stock ("Bridge
Notes"). The basic terms of the Bridge Notes were: (a) 10% interest per annum,
paid in arrears; (b) one year term; (c) for every $10,000 of principal invested,
the purchaser received a warrant to acquire 1,000 shares of Anchor common stock
at a purchase price of $1.75 per share; (d) "piggyback" registration rights for
three years; and (e) subordination provisions that subordinate the Bridge Notes
to Anchor's "Senior Debt" (as defined in the Bridge Notes). The Bridge Notes
are equal in status to the Debentures converted and not outstanding issued
during 1995, which mature in 1997.
In February 1997, Anchor offered the purchasers of said Bridge Notes
an opportunity to either change the terms of the warrants underlying the Bridge
Notes or to participate in the 1997 Offering (see Note 6 above), by exchanging
their Bridge Notes. The basic terms of these two alternatives were: (a) in
lieu of receiving a warrant to acquire 1,000 shares of Anchor common stock at a
purchase price of $1.75 per share, for every $10,000 of principal invested, the
purchaser would receive a warrant to acquire 2,000 shares of Anchor common stock
at a purchase price of $1.35 per share; or (b) participate in the 1997 Offering
by exchanging the Bridge Notes and receiving in return (i) interest at the rate
of 10% per annum up to the date of conversion; (ii) Anchor common
14
<PAGE>
stock in place of the Bridge Notes at a price equal to $0.90 per share; and
(iii) a five year warrant, equal to the number of shares issued in place of the
Bridge Notes, with the right to purchase Anchor's common stock at a purchase
price of $0.90 per share. The purchasers representing $180,000 of said Bridge
Note chose alternative (a) above, and the remaining $45,000 chose alternative
(b) above. As of September 30, 1997, $170,000 of the original $225,000 remained
outstanding.
In 1995, Anchor issued $370,000 of 10% Convertible Subordinated
Debentures (the "Debentures"). Investors holding $270,000 of the Debentures,
including seven members of the Board of Directors, converted their Debentures
into 200,000 shares of Anchor's common stock at $1.35 per share. These
conversions saved Anchor approximately $85,000 in interest payments, reduced
outstanding indebtedness by $870,000 and, in turn, increased shareholders'
equity by $870,000. As of September 30, 1997, $80,000 remained outstanding under
the terms of the Debentures. For further information regarding the Debentures,
refer to Anchor's Annual Report on Form 10-K for the year ended December 31,
1996.
On December 17, 1996, Anchor entered into a Financial Advisory
Agreement ("Agreement") with The Private Financing Group ("TPFG"), to advise and
assist in planning, locating investors or funding sources, reviewing overall
business needs and promotion of the internal and external business goals of
Anchor. In particular, TPFG was to contact outside third party and institutional
funding sources concerning possible debt or equity financing opportunities.
Although Anchor had discussions with several potential investors concerning
possible financings, management concluded that the current financial condition
of Anchor made any financing proposal too costly. Consequently, the Board of
Directors determined that management should defer seeking outside financing
until Anchor's financial operating results sufficiently improve to enable it to
achieve a cost-effective private or public financing.
The Agreement with TPFG provided for an advisory consulting fee of
$15,000 per month, plus reasonable expenses, commencing December 17, 1996 and
continuing for a nine month period. Because the Board of Directors determined
that management should postpone seeking outside financing, in April 1997,
management exercised the cancellation provisions and terminated the Agreement
with TPFG.
During first quarter 1997, Anchor commenced raising additional funds
from members of the Board of Directors and other qualified investors through a
private offering of Anchor common stock along with warrants to acquire shares of
Anchor common stock (the "1997 Offering"). As of November 3, 1997, Anchor had
raised $305,000 and had oral commitments for an additional $100,000 in the 1997
Offering. Anchor has utilized a substantial portion of the proceeds from the
1997 Offering to support current working capital needs. The basic terms of the
1997 Offering are: (a) 555,000 shares of Anchor common stock available at a
purchase price of $0.90 per share; (b) five year warrants to acquire one share
of Anchor common stock for each share of Anchor common stock purchased at an
exercise price of $0.90 per share; (c) "piggyback" registration rights for three
years; and (d) anti-dilution protection for stock splits, stock dividends,
recapitalizations and reorganizations. Purchasers of the 1997 Offering, as of
November 3, 1997, consisted of eight members of the Board of Directors and other
qualified investors.
Capital and certain acquisition related expenditures were $56,516 and
$387,690 for the nine months ended September 30, 1997, and 1996, respectively.
The largest 1997 expenditure involved computer equipment purchased by Harden
and BRI during the second quarter. During the first nine months of 1996, The
R.L. Ferguson Insurance Agency ("RLF") located in Walnut Creek, California and
certain property and casualty accounts maintained by Norman I. Robins ("Robins")
and John R. McPherson ("McPherson") were merged into Anchor's insurance
brokerage subsidiary, PKW, located in Concord, California.
Short-term debt, current portion of long-term debt and current portion
of long-term liabilities at September 30, 1997, totaling in the aggregate
$2,589,234 (as compared to $2,424,508 at December 31, 1996) consisted of: (a)
$975,000 outstanding under a $1,000,000 bank credit line maintained by Anchor;
(b) $445,000 outstanding under a $450,000 bank unsecured credit line with
another bank; (c) $142,500 outstanding under a $150,000 bank unsecured term loan
with the same bank which extended the $450,000 bank credit line; (d)
approximately $243,750 of future fixed payments under a consulting agreement
entered into with a company affiliated with the former shareholders of BRI; (e)
$207,500 representing the current portion of obligations with regard to certain
real property leased by PKW prior to its acquisition by Anchor and relocation to
Anchor's executive offices; (f) $80,000 of Debentures; (g) $170,000 of Bridge
Notes; and (h) approximately $325,484 for
15
<PAGE>
certain other current liabilities.
On January 7, 1997, the $1,000,000 bank credit line which Anchor had
maintained expired. Although Anchor was within the covenants of the bank credit
line on the renewal date and was current with all interest payments, the bank
notified Anchor that it would no longer continue to extend the line to Anchor,
under the same terms. Anchor has been successful, as of October 24, 1997, in
replacing the $1,000,000 bank credit line with a new credit facility (the "New
Loan") provided by another bank. The basic terms and conditions of this New Loan
are: (a) $1,600,000 term loan; (b) interest equal to the bank's prime rate plus
2.5%; (c) five year term; (d) monthly principal payments in installments of
$26,6666.67; (Not withstanding the foregoing, 75% of the Company's monthly
EBITDA shall be applied to principal to the extent such percentage of monthly
EBITDA is required to make the scheduled payment of principal. To the extent
that 75% of monthly EBITDA falls short of the required principal payment, the
difference shall be added to the final payment.); and (e) a five year warrant to
acquire 95,000 shares of Anchor common stock at a purchase price of $1.75 per
share. A portion of the $1,600,000 proceeds from the New Loan was used to pay
off $975,000 outstanding under the $1,000,000 bank credit line. Another portion
of the proceeds from the New Loan was used to retire and consolidate two credit
facilities the bank had extended Anchor. The $445,000 outstanding balance under
the $450,000 bank unsecured credit line and the $142,500 outstanding balance
under the $150,000 bank unsecured term loan were paid in full on October 24,
1997.
At September 30, 1997, long-term liabilities, less the current portion
discussed above, totaled $577,160 (as compared to $922,950 at December 31,
1996), and primarily consisted of (a) approximately $122,000 representing the
long-term portion of obligations related to certain real property leased by PKW
prior to its acquisition by Anchor and relocation to Anchor's executive offices;
(b) approximately $317,500 representing deferred rent related to certain real
property currently leased by Anchor; and (c) approximately $137,660 for certain
other long-term liabilities. In May 1995, PKW entered into a sublease with
respect to 82% of PKW's prior office space. In December 1995, PKW entered into
a sublease with respect to an additional 10% of PKW's prior office space. The
subleases expire on November 30, 1999, and each require PKW to provide a multi-
year rent subsidy. The amounts classified as short and long-term liability with
respect to the PKW leases reflect such subsidy and are based upon the assumption
that the remaining 8% of such office space will be subleased.
Anchor has not paid cash dividends in the past and does not expect to
pay cash dividends in the foreseeable future.
STRATEGY
Anchor's strategy is to expand its third-party administration services
and property and casualty (including workers' compensation) insurance businesses
by: (a) continuing to develop specialized affiliated business units that target
selected insurance industry market segments defined by industry type, geographic
location and consumer demographics; (b) creating new products and services; and
(c) strengthening management, sales and marketing staff. In conjunction with
this strategy, Anchor seeks to manage its affairs to achieve expansion through
internal growth of its existing and new product lines. Anchor also regularly
considers acquisition and merger opportunities and other business expansion
alternatives.
16
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Anchor and its subsidiaries are parties from time to time to various
lawsuits that arise in the normal course of business. Management is not aware of
any lawsuits to which Anchor or its subsidiaries is currently a party or to
which any property of Anchor or any of its subsidiaries is subject, which might
materially adversely affect the financial condition or results of operations of
Anchor.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A. Exhibits
10.6a Employment Agreement dated August 16, 1997, between Anchor and James R.
Dunathan.
10.25 Central Plaza Office Lease dated July 14, 1997, between Harden and Zufu
Properties, Co., Ltd. (regarding 3460 Wilshire Boulevard Tower, Suite
407, Los Angeles, California).
10.25a Addendum dated July 14, 1997, to Central Plaza Office Lease dated July
14, 1997, between Harden and Zufu Properties, Co., Ltd. (regarding 3460
Wilshire Boulevard Tower, Suite 407, Los Angeles, California).
10.26 Office Building Lease dated July 30, 1997, between BRI and T.W.
Patterson Investors II/ The T. W. Patterson Building (regarding 2014
Tulare Street, Suite 818, Fresno, California).
10.27 Business Loan Agreement dated as of September 30, 1997, between Anchor
and Imperial Bank, and related documents.
27.0 Financial Data Schedule
B. Reports on Form 8-K
None
17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Anchor has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ANCHOR PACIFIC UNDERWRITERS, INC.
Date: November 3 , 1997
------------------------ ---------------------------------
James R. Dunathan
President and Chief Executive Officer
Date: November 3, 1997
------------------------ ---------------------------------
Earl Wiklund
Senior Vice President and
Chief Financial Officer
18
<PAGE>
EXHIBIT 10.6a
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made on August 16, 1997 between ANCHOR PACIFIC
UNDERWRITERS, INC. ("Employer"), and JAMES R. DUNATHAN ("Executive").
Recitals
--------
A. Executive is and has been employed by Employer for more than five (5)
years as its President and Chief Executive Officer. Through such experience, he
has acquired outstanding and special skills and abilities and an extensive
background in and knowledge of Employer's business and the industry in which it
is engaged.
B. Employer desires assurance of the continued association and services
of Executive in order to retain his experience, skills, abilities, background,
and knowledge, and is therefore willing to engage his services on the terms and
conditions set forth below.
C. Executive desires to continue in the employ of Employer and is willing
to do so on those terms and conditions.
NOW, THEREFORE, in consideration of the above recitals and of the mutual
promises and conditions in this Agreement, it is agreed as follows:
Terms and Conditions
--------------------
1. Duties and Authority. Employer shall employ Executive as President and
--------------------
Chief Executive Officer of Employer. Executive's position as President and Chief
Executive Officer is to remain in effect until changes are deemed necessary and
approved, by action of the Employer's Board of Directors.
2. Outside Business Activities. During his employment, Executive shall
---------------------------
devote his full energies, interests, abilities and productive time to the
performance of this Agreement and shall not, without Employer's prior written
consent, render to other services of any kind for compensation, or engage in any
other business activity that would materially interfere with the performance of
his duties under this Agreement; provided, however, that Executive may continue
to serve as an officer and director of Harden & Company Insurance Services,
Inc., Putnam, Knudsen & Wieking, Inc. and other direct and indirect subsidiaries
of Employer and to receive compensation for those services from Anchor Pacific
Underwriters, Inc. and/or such subsidiaries.
3. Covenant Not to Compete During Employment Term. During the employment
----------------------------------------------
term, Executive shall not, directly or indirectly, whether as a partner,
employee, creditor, shareholder or otherwise, promote, participate in or engage
in any activity or other business competitive with Employer's business.
1
<PAGE>
4. Term of Employment. Subject to earlier termination as provided in this
------------------
Agreement. Executive shall be employed for a term beginning August 1, 1997, and
ending July 30, 2002. Executive's compensation and benefits described under
Section 6, below, shall begin on August 1,1997 and shall be prorated as
necessary.
5. Place of Employment. Unless the parties agree otherwise in writing,
-------------------
during the employment term, Executive shall perform the services he is required
to perform under this Agreement at Employer's offices, located at 1800 Sutter
Street, Concord, California; provided, however, that Employer may from time to
time require Executive to travel temporarily to other locations on Employer's
business.
6. Executive's Compensation and Benefits.
-------------------------------------
(a) Basic Salary. Employer shall pay a basic salary to Executive at a
------------
rate of $140,000 per year, payable on a semi-monthly basis, effective August
1, 1997. The basic salary payable to Executive under this Section 6(a) shall be
subject to increases based upon the personal performance of Executive and the
business performance of Employer as determined by periodic reviews and
evaluations to be conducted at least annually.
(b) Incentive Compensation. In addition to the basic salary provided
----------------------
for in Section 6(a) above, Employer shall pay to Executive as incentive
compensation a bonus based on Employer's financial performance. The bonus shall
be equal to 4% of Employer's operating results and shall be calculated semi-
annually for the periods ended June 30 and December 31, respectively. The
Employer's operating results shall be based on an EBITDA (earnings before income
taxes, depreciation, and amortization) basis. The bonus shall be paid to
Executive within 30 days of the end of each semi-annual period. To the extent
Employer's operating results for a particular semi-annual period are later
adjusted, any over-payment or under-payment of Executive's bonus will be
adjusted in the next semi-annual period (or, if necessary, such additional semi-
annual periods until the discrepancy is resolved).
(c) Stock Options. In addition to the basic salary and incentive
-------------
compensation, and as recognition of the contribution that Executive has made to
Employer, Employer shall grant to Executive additional stock options to acquire
no less than 50,000 shares of Employer's common stock pursuant to the Anchor
Pacific Underwriters, Inc. 1994 Stock Option Plan (the "Plan"). Executive's
Stock Option grant under the Plan shall be priced at 100% of the market price of
Employer's common stock on the date of grant. Executive's stock option grant
under the Plan shall be immediately vested for exercise from and after the date
of grant and shall be for a ten (10) year term.
(d) Additional Benefits. During the employment term, Executive shall
-------------------
be entitled to receive all other benefits of employment generally available to
Employer's other executive and managerial employees when and as he becomes
eligible for them, including group health benefits, life insurance (at three
times salary) and six (6) weeks
2
<PAGE>
of annual paid vacation. Vacation allowance to increase by one (1) week every
three (3) years, beginning with the effective date of this Agreement.
Executive's vacation benefits shall be subject to Employer's policies on
limitations on accruing vacation time.
(e) Expenses. During the employment term, Employer shall reimburse
--------
Executive for reasonable out-of-pocket expenses incurred in relation to
Employer's business, including all travel expenses, food and lodging while away
from home, subject to documentation to be submitted monthly and such other
policies as Employer may from time to time reasonably establish for its
employees.
(f) Automobile Allowance. During the employment term, Employer shall
--------------------
furnish to Executive an automobile allowance or shall make lease payments on a
car leased in the name of Executive.
7. Employer's Ownership of Intangibles. All processes, inventions,
-----------------------------------
patents, copyrights, trademarks and other intangible rights that may be
conceived or developed by Executive, either alone or with others, during the
term of Executive's employment, whether or not conceived or developed during
Executive's working hours, and with respect to which the equipment, supplies,
facilities or trade secret information of Employer was used, or that relate to
the business of Employer or to Employer's actual or demonstrably anticipated
research and development, or that result from any work performed by Executive
for Employer, shall be the sole property of Employer. Executive shall disclose
to Employer all inventions conceived during the term of employment, whether or
not the property of Employer under the terms of the preceding sentence, provided
that such disclosure shall be received by Employer in confidence. Executive
shall execute all documents, including patent applications and assignments,
required by Employer to establish Employer's rights under this Section.
8. Indemnification by Employer. Employer shall, to the maximum extent
---------------------------
permitted by law, indemnify and hold Executive harmless against expenses,
including reasonable attorneys' fees, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with a proceeding arising
by reason of Executive's employment by Employer or any of its direct or indirect
subsidiaries. Employer shall advance to Executive any expenses incurred in
defending such proceeding to the maximum extent permitted by law.
9. Termination of Agreement.
-------------- ---------
(a) Termination for Cause. Employer may terminate this Agreement at
---------------------
any time without notice if Executive commits any material act of dishonesty,
discloses confidential information, is guilty of gross carelessness or
misconduct, or unjustifiably neglects his duties under this Agreement. In the
event Executive is terminated for cause under this Section 9(a), he shall be
paid his basic salary due under Section 6(a) through the date of his
termination, all rights under Section 6(b) shall be lost and unvested stock
options granted under Section 6(c) shall be treated in the manner provided for
in the Plan.
3
<PAGE>
(b) Termination on Resignation. Executive may terminate this
--------------------------
Agreement by giving Employer six (6) months' prior written notice of
resignation. In the event Executive resigns under this Section 9(b), he shall be
entitled to receive six (6) months' basic salary due under Section 6(a), any
bonus due under Section 6(b) will be prorated through the date of his
resignation and unvested stock options granted under Section 6(c) shall be
treated in the manner provided for in the Plan.
(c) Termination on Death. If Executive dies during the initial term
--------------------
or during any renewal terms of this Agreement, this Agreement shall be
terminated on the last day of the calendar month of his death. In the event
Executive dies, he or his estate shall be entitled to the basic salary due under
Section 6(a) through the end of the month in which his death occurs, any bonus
due under Section 6(b) shall be prorated through the end of the month in which
his death occurs, and any unvested stock options granted under Section 6(c)
shall be treated in the manner provided for in the Plan.
10. Effect of Combination or Dissolution. This Agreement shall not be
------------------------------------
terminated by Employer's voluntary or involuntary dissolution or by any merger
in which Employer is not the surviving or resulting corporation, or on any
transfer of all or substantially all of Employer's assets. In the event of any
such merger or transfer of assets, the provisions of this Agreement shall be
binding on and inure to the benefit of the surviving business entity or the
business entity to which such assets shall be transferred.
11. Disclosure of Confidential Information and Trade Secrets Prohibited.
-------------------------------------------------------------------
In the course of his employment, Executive may have access to confidential
information and trade secrets relating to Employer's business. Except as
required in the course of this employment by Employer, Executive will not,
without Employer's prior consent, either during his employment by Employer or
for three (3) years after termination of this employment, directly or
indirectly, disclose to any third person any such confidential information or
trade secrets.
12. Disclosure of Customer Information and Solicitation of Other Employees
----------------------------------------------------------------------
Prohibited. In the course of his employment, Executive will have access to
- ----------
confidential records and data pertaining to Employer's customers and to the
relationship between these customers and Employer's employees. Such information
is considered secret and is disclosed to Executive in confidence. During his
employment by Employer and for three (3) years after termination of that
employment, Executive shall not, directly or indirectly, disclose or use any
such information, except as required in the course of his employment by
Employer. In addition, for three (3) years after termination of his employment,
Executive shall not induce or attempt to induce any employee to discontinue
employment with Employer for the purpose of employment with any competitor of
Employer.
13. Payment Upon Termination or Permanent Disability. Notwithstanding any
------------------------------------------------
provision of this Agreement, if Employer terminates this employment agreement
for any reason other than cause or Executive becomes permanently disabled or
unable to perform his duties as President and Chief Executive Officer, Employer
shall pay
4
<PAGE>
Executive (i) an amount equal to twelve (12) months basic salary due under
Section 6(a), at Executive's then current rate of compensation; (ii) any
accrued, but unpaid, bonus due under Section 6(b); and (iii) for a period of
twelve (12) months, all benefits, including the automobile allowance described
in Section 6(f), to which Executive would otherwise be entitled had the
Agreement not been so terminated. If Executive is permanently disabled, any
obligations under this Section 13 shall be reduced, on a dollar-for-dollar
basis, by any disability insurance payments made to Executive during the twelve
(12) month period.
14. Miscellaneous Provisions.
------------------------
(a) Integration. This Agreement contains the entire agreement between
-----------
the parties and supersedes all prior oral and written agreements,
understandings, commitments and practices, between the parties, including all
prior employment agreements, whether or not fully performed by Executive before
the date of this Agreement. No amendments to this Agreement may be made except
by mutual consent and in writing signed by both parties.
(b) Choice of Law. The formation, construction, and performance of
-------------
this Agreement shall be construed in accordance with the laws of the State of
California.
(c) Notices. Any notice to Employer required or permitted under this
-------
Agreement shall be given in writing by Executive, either by personal service or
by registered or certified mail, postage prepaid, addressed to Employer at its
then principal place of business. Any such notice to Executive shall be given in
a like manner and, if mailed, shall be addressed to Executive at his home
address then shown in Employer's files. For the purpose of determining
compliance with any time limit in this Agreement, a notice shall be deemed to
have been duly given (i) on the date of service, if served personally on the
party to whom notice is to be given, or (ii) on the fifth business day after
mailing, if mailed to the party to whom the notice is to be given in the manner
provided in this Section.
(d) Remedies. If either party obtains a judgment against the other
--------
by reason of breach of this Agreement, a reasonable attorneys' fee as fixed by
the court shall be included in such judgment.
(e) Severability. If any provision of this Agreement is held invalid
------------
or unenforceable, the remainder of this Agreement shall nevertheless remain in
full force and effect. If any provision is held invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in any other circumstances.
5
<PAGE>
Executed by the parties as of the date and year first above written.
"Employer"
ANCHOR PACIFIC UNDERWRITERS, INC.
By: /s/ Audie J. Dudum
--------------------------------
Audie J. Dudum, Chairman
"Executive"
/s/ James R. Dunathan
----------------------------------
James R. Dunathan
6
<PAGE>
EXHIBIT 10.25
CENTRAL PLAZA
OFFICE LEASE
Property: 3440-50-60-70 Wilshire Boulevard
Tenant: Harden & Company, Inc., a California corporation
<TABLE>
<CAPTION>
TABLE OF CONTENTS
ARTICLE
<S> <C>
I FUNDAMENTAL LEASE PROVISIONS........................................2
II PREMISES............................................................3
III TERM................................................................3
IV RENT................................................................4
V SECURITY DEPOSIT....................................................9
VI COMPLETION OF PREMISES..............................................9
VII USE OF THE PREMISES................................................10
VIII SERVICE AND UTILITIES..............................................11
IX MAINTENANCE AND REPAIRS............................................13
X RIGHTS RESERVED TO LANDLORD........................................13
XI ALTERATIONS AND ADDITIONS..........................................14
XII INDEMNITY..........................................................15
XIII TENANT'S INSURANCE.................................................15
XIV MECHANICS' LIENS...................................................17
XV DAMAGE AND RESTORATION.............................................17
XVI CONDEMNATION.......................................................18
XVII QUIET POSSESSION...................................................19
XVIII ESTOPPEL CERTIFICATE...............................................19
XIX DEFAULTS...........................................................19
XX SURRENDER OF PREMISES..............................................21
XXI ASSIGNMENT, SUBLEASE AND ENCUMBRANCE...............................22
XXII SUBORDINATION......................................................23
XXIII SALE OF BUILDING BY LANDLORD.......................................24
XXIV HOLDING OVER.......................................................24
XXV RULES AND REGULATIONS..............................................24
XXVI NOTICES............................................................24
XXVII WAIVER.............................................................25
XXVIII PARKING............................................................25
XXIX MISCELLANEOUS......................................................26
ADDENDUM
</TABLE>
EXHIBIT
A Description of Premises (Floor Plan)
B Site Plan
C Acceptance and Statement of Premises, Area and Term
D Intentionally omitted.
E Rules and Regulations
F Parking Agreement
G Intentionally omitted.
THE SUBMISSION OF THE 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 ONLY UPON EXECUTION AND DELIVERY
HEREOF 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.
1
<PAGE>
CENTRAL PLAZA OFFICE LEASE
--------------------------
This Lease ("Lease"), entered into as of July 14, 1997 by and between
Zufu Properties Co., Ltd., a California corporation ("Landlord") by and through
TOTAL Properties Management Co., as managing agent for the Property described
below ("Landlord's Manager") and Harden & Company, Inc., a California
corporation ("Tenant").
In consideration of the rents and covenants hereinafter set forth,
Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the
following described premises, upon the following terms and conditions:
ARTICLE I
FUNDAMENTAL LEASE PROVISIONS
----------------------------
1.01 PREMISES
--------
A. Premises: 3460 Wilshire Boulevard Tower, Suite
407 located on the 4th floor in that certain office complex located at 3440,
3450, 3460, and 3470 Wilshire Boulevard, Los Angeles, CA 90010 (the "Property").
B. Rentable Area: Approximately 1,559 square feet.
C. Term: Twelve (12) months commencing August 8,
1997 and expiring August 7, 1998. Scheduled term Commencement Date August 8,
1997 (subject to Article III hereof).
1.02 RENT
----
A. Basic Rent: to be paid as follows: month one
(1) - One Thousand Eight Hundred Seventy and 80/100ths Dollars ($1,870.80);
month two (2) -$0.00; months three (3) through twelve (12) - One Thousand Eight
Hundred Seventy and 80/100ths dollars ($1,870.80) per month. (The Basic Rent
shall be subject to increases pursuant to Article IV hereof).
B. Base Rent Concession: Intentionally omitted.
C. Tenant's Proportionate Share: (0.224%).
(Subject to Section 4.02(E) hereof).
D. Expenses-Calendar Base Year 1997 Tax Base Year
1997-1998. (Subject to Section 4.02(F) hereof). (Tenant shall not receive any
off-set or credit nor shall the Basic Annual Rent be decreased if the actual
costs of Operation and Maintenance of the Property are less than the applicable
annual base).
E. CPI Increase: None. (See Section 4.03 hereof).
F. Prepaid Rent: The monthly payment of Basic Rent
for the 1st month after the Commencement Date of the term of this Lease is made
concurrently with the execution of this Lease pursuant to Section 4.01 hereof.
G. Security Deposit: Security Deposit in the
amount of One Thousand Eight Hundred Seventy and 80/100ths dollars ($1,870.80)
shall be made concurrently with the execution of this Lease pursuant to Article
V hereof.
1.03 Additional Provisions
---------------------
A. Guaranty of Lease: (Subject to Exhibit G
hereof).
Name: None.
---------------------------------------
Name:
---------------------------------------
Name:
---------------------------------------
B. Options:
-------------------------------------
(Subject to the Addendum attached
hereto.)
C. Broker: None.
-------------------------------------
(Subject to Section 29.16.)
D. Other:
-------------------------------------
(Subject to the Addendum attached
hereto.)
2
<PAGE>
ARTICLE II
PREMISES
--------
2.01 The Premises. The premises demised and leased hereunder (the
-------------
"Premises") are shown on the Floor Plan attached hereto as Exhibit "A" and
incorporated herein by this reference. The Premises consist of office space
situated in that certain Property and improvements shown on the "Site Plan"
attached hereto and incorporated herein as Exhibit "B".
2.02 Rentable Area. The rentable area set forth in the Fundamental Lease
--------------
Provisions (the "Rentable Area") is subject to verification by the Landlord's
architect, whose determination of the verified Rentable Area shall be conclusive
and binding on the parties. In the event that the Landlord's project architect
shall determine that the verified Rentable Area is more or less than the
Rentable Area set forth in the Fundamental Lease Provisions, then the Basic
Annual Rent shall be adjusted to the sum which is the result of multiplying the
Basic Annual Rent by a fraction, the numerator of which is the verified
Rentable Area, and the denominator of which is the Rentable Area set forth in
the Fundamental Lease Provisions; in such event, the adjustment shall be
confirmed in writing by the parties pursuant to Exhibit "C" to this Lease,
executed upon request of either party.
2.03 Tenant's Rights to Use in Common. Tenant shall have, as appurtenant
---------------------------------
to the Premises, rights to use in common, subject to reasonable rules of general
applicability to tenants of the Property from time to time made by Landlord and
of which Tenant is given notice, the following areas of the Property: the common
lobbies, corridors, stairways and stairwells, restrooms, elevators, and common
walkways and driveways necessary for access to the Property (the "Common Area").
Tenant hereby agrees that Landlord shall have the right, for the purposes of
accommodating the other tenants of the Property, to increase or decrease the
configuration and dimensions or to otherwise alter the common corridors on any
floor so long as Tenant's access to the Premises, fire exits, restrooms,
stairwells and elevators is not unreasonably prohibited thereby.
ARTICLE III
TERM
----
3.01 Commencement of Term and Duration. Tenant shall have and hold the
----------------------------------
Premises for a period (herein referred to as the "Term") commencing on the date
(the "Commencement Date") which shall be the earlier of (i) the date on which
the Premises are "Ready for Occupancy" as defined in Section 3.02 below, or (ii)
the date on which Tenant takes possession or commences use of the Premises for
any purpose, and continuing for the term set forth in the Fundamental Lease
Provisions, unless sooner terminated as provided in this Lease. The Commencement
Date shall be confirmed in writing as set forth in Section 3.05 hereof, (See
attached Exhibit "C" hereto)
3.02 Delivery of Premises. The parties anticipate that the Premises shall
---------------------
be Ready for Occupancy within thirty (30) days of the scheduled term
commencement date set forth in the Fundamental Lease Provisions. In the event
that it becomes apparent to Landlord that the Premises shall not be Ready for
occupancy within ten (10) days of the scheduled term commencement date, Landlord
shall use reasonable efforts to advise Tenant of the anticipated date that the
Premises will be ready for occupancy at least ten (10) days prior to such date,
but the failure to give such notice shall not constitute a default hereunder by
Landlord. Tenant agrees that in the event of the inability of Landlord to
deliver possession of the Premises to Tenant by the scheduled term commencement
date, this Lease shall not be void or voidable, nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom, but in such event Tenant
shall not be liable for any rent until the Premises are ready for occupancy. Any
failure to deliver possession at the scheduled term commencement date, shall not
affect the obligations of Tenant hereunder, except that if Landlord has failed
to deliver possession of the Premises to Tenant within six (6) months after the
scheduled term commencement date, Landlord or Tenant may, at either option, by
notice in writing to the other party within thirty (30) days thereafter, cancel
this Lease, in which event the parties shall be discharged from all obligations
hereunder.
3.03 Early Entry Into Premises. Tenant may enter into the Premises upon
--------------------------
receipt of Landlord's consent, for the purpose of installing furniture, special
flooring or carpeting, trade fixtures, telephones, computer, photocopy
equipment, and other business equipment. Such early entry will not advance the
Commencement Date, providing (i) Tenant does not commence business operations
from any part of the Premises, and (ii) Tenant's early entry does not interfere
with, or delay, the completion of time Tenant Improvements. If Tenant is allowed
early entry, Landlord shall not be responsible for, and the Tenant is required
to obtain insurance covering, any loss, including theft, damage or destruction
to any work or material installed or stored by Tenant or Landlord, or any
contractor or individual involved in the completion of the Tenant Improvements
at the Premises, or for any injury to Tenant or Tenant's employees or to any
person. Landlord shall have the right to post the appropriate notices of
non-responsibility and
3
<PAGE>
to require Tenant to provide Landlord with evidence that Tenant has fulfilled
its obligation to provide insurance pursuant to Article XIII of this Lease. To
the actual extent any such entry actually delays the Commencement Date such
delay, but only to the extent that such early entry actually delays the
completion of the Tenant Improvements, shall constitute a delay caused by
Tenant.
3.04 Effective Date. This Lease will become effective when signed by the
---------------
Landlord and Tenant and delivered to Tenant. Subject to the respective
obligations of Landlord and Tenant regarding the construction of Tenant
Improvements, if any, as hereinafter set forth, the Tenant accepts the Premises
in its "as is" condition as of the date this Lease is signed by Tenant. Tenant
acknowledges that it has inspected or has waived inspection of the Premises and
the Property prior to the time this Lease was executed by Tenant.
3.05 Acceptance of Premises. It is expressly understood by the parties
-----------------------
that "Ready for Occupancy" does not include the installation and completion of a
telephone system in the Premises, which shall be solely Tenant's responsibility.
Promptly following the delivery of said Landlord's certificate to Tenant by
Landlord, Tenant shall countersign and return to Landlord an "Acceptance and
Statement of Premises, Area and Term" which will be sent by Landlord to Tenant,
and which will be in the form of a letter attached hereto as Exhibit "C",
Tenant's signature of said letter shall be Tenant's agreement of the
Commencement Date and termination date of this Lease and Tenant's acceptance of
the Premises in its "as is" condition ("punch list items" excepted), Tenant
thereby agreeing that Landlord has fulfilled its obligations pursuant to Exhibit
"C" of this Lease. The failure by Tenant to sign and return the "Acceptance and
Statement of Premises, Area and Term (the "Statement")" to Landlord within ten
(10) days of Tenant's receipt of same shall be deemed to constitute (i) Tenant's
acceptance of the Premises; (ii) Tenant's acknowledgment of the Commencement
Date as specified in the Statement; (iii) Tenant's acknowledgment of the
termination date as specified in the Statement; (iv) Tenant's acknowledgment of
the Rentable Area of the Premises as specified in the Statement; (v) Tenant's
acknowledgment of the Basic Annual Rent and monthly installments thereof as
specified in the Statement; and (vi) Tenant's Proportionate Share as specified
in the Statement.
ARTICLE IV
RENT
----
4.01 Basic Rent. Throughout the Term of this Lease, Tenant shall pay as
-----------
rent for the Premises the Basic Annual Rent (sometimes referred to as "Base
Rent" or "Rent") set forth in the Fundamental Lease Provisions thereof, as such,
basic Annual Rent may be adjusted as hereinafter provided. Basic Rent shall be
payable in equal monthly installments in advance on the first day of each, and
every calendar month, in full, without deduction, abatement or off-set, and
without prior demand or notice. The monthly payment for the first month, after
the Commencement Date is made concurrently with the execution hereof. If the
Commencement Date is other than the first day of a calendar month, then the rent
payable hereunder shall be prorated on a daily basis, based on a three hundred
sixty (360) day year, and the rent for such partial month following the
Commencement Date shall be payable on the Commencement Date.
4.02 Additional Rent for Increase in Cost of Operation and Maintenance.
------------------------------------------------------------------
Basic Rent shall be increased, and Tenant shall pay Tenant's Proportionate Share
as set forth in the Fundamental Lease Provisions hereof, of the costs of
Operation and Maintenance of the Property during the term of this Lease in
accordance with the following provision:
A. If the Property is not fully constructed and completed and/or does not
have at least ninety five percent (95%) of the rentable area of the Property
occupied during any calendar year period, then the Taxes and Cost of Operation
and Maintenance shall be deemed to be equal to the Taxes and Cost of Operation
and Maintenance, which would have been incurred by Landlord if the Property had
been fully constructed and completed and ninety five percent (95%) of the
rentable area of the Property had been occupied for the entirety of such
calendar year. However, in no event shall there be included in such computation
taxes which are never assessed or which Landlord does not have to pay. Annual
amortization of costs shall be determined by dividing the original cost of such
capital expenditure by the number of years of useful life of the capital item
acquired, or by the number of years permitted by the IRS for amortization,
whichever is shorter. Taxes and Cost of Operation and Maintenance shall be
computed according to the cash or accrual basis of accounting, as Landlord may
elect in accordance with standard and reasonable accounting principles employed
by Landlord.
B. Costs of Operation and Maintenance. The term "Costs of Operation and
-----------------------------------
Maintenance" shall be defined as those expenses incurred by Landlord with
respect to the repair, alteration, improvement, replacement, operation and
maintenance of the Premises, Property and Parking Facilities, in accordance
with accepted principles of sound accounting practice and industry standards as
applied to the operation, maintenance and security of a first-class office
building, which costs shall include but not limited to the following:
4
<PAGE>
1) All utility costs;
2) All wages and benefits and costs of employees or independent
contractors or employees of independent contractors engaged in the operation,
maintenance, janitorial and security of the Property;
3) All expenses of the maintenance of security and safety systems for
the Property;
4) All repairs to, replacement of, and physical maintenance of the
Property, including the cost of all supplies, uniforms, equipment, tools, and
materials;
5) Any license, permit or inspection fees required in connection
with the operation of the Property;
6) Any auditor's fees for accounting provided for the operation and
maintenance of the Property;
7) Any legal fees, costs and disbursements as would normally be
incurred in connection with the operation, maintenance and repair of the
Property;
8) All reasonable fees for management services provided by a
management company or by Landlord or an agent of the Landlord;
9) The annual amortization of costs, including financing costs
(actual or reasonably imputed), if any, incurred by Landlord after completion of
the Property for any capital improvements installed or paid for by Landlord and
required by any laws, rules or regulations of any governmental or
quasi-governmental authority (collectively "Laws") enacted or modified after the
Property was constructed;
10) The annual amortization of costs, including financing costs
(actual or reasonably imputed), if any, of any equipment, device or capital
improvements incurred after completion of the Property and reasonably intended
as a labor-saving measure or to affect other economies in the operation or
maintenance of the Property;
11) The annual amortization of costs incurred after completion of the
Property, if any, for the replacement of (a) exterior perimeter window draperies
or blinds provided by Landlord and (b) carpeting in the public areas of the
Property;
12) All insurance expenses which shall mean all premiums and other
charges incurred by Landlord with respect to the insurance of the Property
including, without limitation, the following to the extent carried by the
Landlord: (a) fire and extended coverage insurance, windstorm, hail and
explosion; (b) riot attending a strike, civil commotion, aircraft, vehicle and
smoke insurance; (c) public liability, bodily injury and property damage
insurance; (d) elevator insurance; (5) worker's compensation insurance for the
employees; (f) boiler and machinery insurance, sprinkler leakage, water damage,
property, burglary, fidelity and pilferage insurance on equipment and materials;
(g) loss of rent, rent abatement, rent continuation, business interruption
insurance, and similar types of insurance; (h) such other insurance as is
customarily carried by operators of other comparable office buildings in
Southern California;
13) Such other usual costs and expenses which are paid by other
landlords for the purpose of providing for the on-site and off-site operation,
servicing, maintenance and repair of first-class office buildings in Southern
California; and
14) Minor capital improvements or expenditures where each such
improvement or acquisition costs less than Three Thousand Dollars ($3,000.00).
C. Definition of Property Taxes. As used herein, the term "Property Taxes"
-----------------------------
shall include any form of assessment, license fee, license tax, business license
fee, business license tax, commercial rental tax, levy, charge, penalty, tax or
similar imposition, imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
transportation, agricultural, lighting, drainage or other improvement or special
assessment district thereof, as against any legal or equitable interest of
Landlord in the Property and Parking Facilities, including, but not limited to,
the following;
1) any tax on Landlord's right to rent or other income from the
Property or as against Landlord's business of leasing the Property;
5
<PAGE>
2) any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of Property Taxes, it being acknowledged by
Tenant and Landlord that Proposition 13 was adopted by the voters of the State
of California in the June, 1978 election and that assessment, taxes, fees,
levies and charges may be imposed by governmental agencies for such services as
police protection, fire protection, street, sidewalk and road maintenance,
refuse removal and for other governmental services formerly provided without
charge to property owners or occupants. It is the intention of Tenant and
Landlord that all such new and increased assessments, taxes, fees, levies and
charges and all similar assessments, taxes, fees, levies and charges be included
within the definition of Property Taxes for the purposes of this Lease;
3) any assessment, tax, fee, levy or charge, upon the transaction or
any document to which Tenant is a party, creating or transferring an interest or
an estate in the Property or Parking Facilities;
4) reappraisal of the Property and Parking Facilities from time to
time by virtue of a change in the ownership of the Landlord's interest or
otherwise by operation of law; and
5) any and all assessment, tax, fees, levies or charges allocable to
or measured by the area of the Property and Parking Facilities or the rent
payable hereunder, including without limitation, any gross income tax or excise
tax levied by the city, county, state or federal government or any political
subdivision thereof, with respect to the receipt of such rent, or upon or with
respect to the possession, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Property, or any portion thereof.
Property Taxes shall not include Landlord's federal or state income, franchise,
inheritance or estate taxes.
D. Landlord shall have the right in its discretion to contest the amount
or validity of any Property Taxes by appropriate legal proceedings and to
include in the costs of Operation and Maintenance of the Property the reasonable
cost of any such contest, including attorneys' fees. If, in any comparison year
subsequent to the Base Year (the "Adjustment Year"), the amount of Tax Expenses
decrease as a result of the efforts of Landlord, then for purposes of all
subsequent comparison years, including the comparison year in which such
decrease in Tax Expenses occurred, the Tax Expenses deemed attributable to the
Base Year shall be decreased by an amount equal to the decrease in Tax Expenses
in the Adjustable Year.
E. Tenant's Proportionate Share/Rentable Square Footage of the Property.
---------------------------------------------------------------------
As used herein, the term "Tenant's Proportionate Share" shall mean the
proportion of the rentable area of the Premises to the rentable area of the
Property. The rentable area of the Property, for the purpose of calculating the
adjustment to the Basic Rent pursuant to this Article IV, shall be computed by
measuring from the inside surface of the glass outer walls of the Property. Such
rentable area encompasses all area within the outer walls of the Property
(including, without limitation, all janitor, mechanical and electrical closets,
code required Handicapped Refuge Areas, and rooms, restrooms, corridors, and
elevator lobbies), and excludes only the Parking Facilities within the Property
(if any), public stairs controlled by Landlord and shafts for public elevators.
No deductions are made for columns and projections within the outer walls of the
Property necessary to the Property.
F. Expense/Tax Base Year. As used in this Article IV, "Base Year" for
----------------------
purpose of determining additional rent payable by reason of increases in taxes,
shall mean the fiscal year as set forth in section 1.02(D) of the Fundamental
Lease Provisions. For the purposes of determining additional rent payable by
reason of increases in Cost of Operation and Maintenance, "Base Year" shall mean
the calendar year as set forth in Section 1.02(D) of the Fundamental Lease
Provisions.
G. Procedure for Payment of Taxes and Operation Expenses. Tenant shall pay
------------------------------------------------------
for Tenant's Proportionate Share of the Taxes and Costs for Operation and
Maintenance of the Property, Premises and Parking Facilities for each calendar
year occurring during the term hereof which shall be determined by Landlord on a
yearly basis. Subsequent to such determination, landlord shall notify Tenant in
writing of tenant's Proportionate Share of the Taxes and Costs of Operation and
Maintenance of the Property, Premises and Parking Facilities for the calendar
year just ended. In the event rent is to be increased, the following procedure
shall be followed:
1) Landlord may, from time to time by ten (10) days written notice to
Tenant, reasonable estimate in advance the amounts Tenant shall owe on a monthly
basis for Taxes and Cost of Operation and Maintenance for any full or partial
calendar year of the Term. In such event, Tenant shall pay such estimated
amounts, on a monthly basis, on or before the first day of each calendar month,
together with Tenant's payment of Base Rent. Such estimate may be reasonably
adjusted from time to time by Landlord by notice to Tenant.
6
<PAGE>
2) Within one hundred twenty (120) days after the end of each
calendar year, or as soon thereafter as practicable, Landlord shall provide a
statement (the "Statement") to Tenant showing: (i) the amount of actual Taxes
and Cost of Operation and Maintenance for such calendar year, with a listing of
amounts for major categories of Cost of Operation and Maintenance, (ii) any
amount paid by Tenant towards Taxes and Cost of Operation and Maintenance during
such calendar year on an estimated basis, and (iii) any revised estimate of
Tenant's obligations for Taxes and Cost of Operation and Maintenance for the
current calendar year.
3) If the Statement shows that Tenant's estimated payments were less
than Tenant's actual obligations for Taxes and Cost of Operation and Maintenance
for such year, Tenant shall pay the difference. If the statement shows an
increase in Tenant's estimated payments for the current calendar year, Tenant
shall pay the difference between the new and former estimates, for the period
from January 1 of the current calendar year through the month in which the
Statement is sent. Tenant shall make such payments with the next Basic Rent
Payment due.
4) If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Taxes and Cost of Operation and Maintenance,
Tenant shall receive a credit for the difference, against future payments of
Taxes or Cost of Operation and Maintenance next due. If the Term shall have
expired, Tenant shall receive a refund of such difference, within thirty (30)
days after Landlord sends the Statement.
5) If the Statement shows an increased Escalation Amount, Tenant
shall pay the difference between the former Escalation Amount and the increased
Escalation Amount for the period from January 1 of the year in which Landlord
sends the Statement, through the month in which the Statement is sent, with the
next Basic Rent Payment due. Tenant shall thereafter pay Base Rent, as increased
by the Escalation Amount set forth in the Statement.
6) So long as Tenant's obligations hereunder are not materially
adversely affected, Landlord reserves the right to reasonably change, from time
to time, the manner or timing of the foregoing payments. In lieu of providing
one Statement covering Taxes and Cost of Operation and Maintenance, Landlord may
provide separate statements, at the same or different times. No delay by
landlord in providing the Statement (or separate statements) shall be deemed a
default by Landlord or a waiver of Landlord's right to require payment of
Tenant's obligations for actual or estimated Taxes or Cost of Operation and
Maintenance.
7) If the Term commences other than on January 1, or ends other than
December 31, Tenant's obligations to pay estimated and actual amounts towards
Taxes and Cost of Operation and Maintenance for such first or final calendar
years shall be prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total estimated or actual
(as the case may be) Taxes and Cost of Operation and Maintenance, for such
calendar year, by a fraction, the numerator of which shall be the number of days
of the Term during such calendar year, and the denominator of which shall be
three hundred sixty (360).
H. Payment at End of Term. In the event that, after the end of the term of
-----------------------
this Lease, or the sooner termination thereof, Tenant shall have as Basic Rent
an amount greater than that calculated to have been due pursuant to this Section
4.02 for the calendar year in which the term of this Lease terminates, Landlord
shall refund the overpayment to Tenant within ninety (90) days from the date of
said termination. In the event that, after the end of the term of this Lease, or
the sooner termination thereof, Tenant shall have theretofore paid as Basic Rent
an amount less than that calculated to have been due pursuant to this Section
4.02 for the calendar year in which the term of this Lease terminates, Tenant
agrees to pay to Landlord, within thirty (30) days of Tenant's receipt of
Landlord's bill, that amount calculated as actually owed by Tenant to Landlord
pursuant to this Section 4.02.
7
<PAGE>
4.04 Personal Property Taxes and Business Taxes. Tenant shall pay in full
-------------------------------------------
and in a timely manner all taxes levied against the personal property of Tenant,
and Landlord shall have no liability therefor. If the Tenant's improvements in
the Premises, whether installed and/or paid for by Landlord or Tenant and
whether or not affixed to the real property so as to become a part thereof, are
assessed for real property tax purposes at a valuation higher than the valuation
at which Tenant Improvements conforming to Landlord's standard building
materials in other space in the Property are assessed, then the real property
taxes and assessments levied against Landlord or the Property by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and the payment thereof shall be governed by the provisions
of this Article IV. If the records of the County Assessor are available and
sufficiently detailed to serve as a basis for determining whether said Tenant
Improvements are assessed at a higher valuation than Landlord's Building
Standard, such records shall be binding on both the Landlord and the Tenant. If
the records of the County Assessor are not available or sufficiently detailed to
serve as a basis for making such determination the actual retail cost of
construction and materials shall be used.
4.05 Special Charges for Special Services and Special Insurance. Tenant
-----------------------------------------------------------
agrees to pay to Landlord, within ten (10) days following written demand, all
reasonable charges for any services, utilities, goods or materials including
additional security, special repairs or any other such costs not otherwise
provided herein to be furnished by Landlord at Tenant's request which are not
required to be furnished by Landlord under this Lease without separate charge or
assessment, plus an administration fee of not less than fifteen percent (15%).
4.06 Tenant's Payment of Additional Rent. Except as otherwise specifically
------------------------------------
provided herein, any sum, amount, item or charge designated or considered as
additional rent in this Lease or any other sum, amount, item or charge payable
by Tenant to Landlord pursuant to this Lease shall be paid by Tenant to Landlord
on the first day of the month following the date on which Landlord notifies
Tenant of the amount payable or on the fifth day after the giving of such
notice, whichever shall be later. Any such notice shall specify in reasonable
detail the basis of such additional rent. Additional rent shall be paid by
Tenant to Landlord without off-set, deduction, abatement or credit.
4.07 Review of Taxes and Cost of Operation and Maintenance. Tenant shall
------------------------------------------------------
have a period of six (6) months following receipt of the Statement, within which
to inspect, at Landlord's office during normal business hours, Landlord's books
and records concerning Taxes and Cost of Operation and Maintenance for the
preceding calendar year in question. Such inspection may only be done by an
accounting firm which is generally considered to be a nationally recognized
firm. If Tenant shall not have availed itself of such inspection, Tenant shall
be deemed to have accepted as final and determinative the amounts shown on the
Statement. If Tenant shall have exercised its right to inspect the books and
records, and then disputes the accuracy of the information set forth in
Landlord's books and records with respect to the Statement, Tenant shall
nevertheless continue to pay the amounts as required by the provisions of
Sections 4.02 through 4.06. If Landlord and Tenant shall not mutually agree on
the Taxes and Cost of Operation and Maintenance charged to Tenant, no later than
one (1) year after receipt of the Statement, Tenant must (or its right to
contest such charges shall be deemed waived) institute arbitration proceedings,
against Landlord in an Arbitration proceeding governed by the rules of the
American Arbitration Association to collect and recover any overpayments made by
Tenant resulting from the errors in the books and records of Landlord; and
provided further, that Tenant shall within ten (10) days of filing the complaint
serve Landlord with a copy of the complaint filed in any such proceeding. Each
party shall bear its own costs and expenses including, but not limited to
attorneys' fees, arbitration costs, accounting costs, and any other fees
incurred as a result of such review.
If Tenant institutes such Arbitration procedures, then the Arbitrator
shall have the power to, and shall, inquire into and determine not only whether
or not the Tenant was overcharged for such Taxes and Cost of Operation and
Maintenance, but whether or not the Tenant was undercharged for such Taxes and
Cost of Operation and Maintenance. At the conclusion of the Arbitration, the
Arbitrator shall issue a ruling as to what the Taxes and Cost of Operation and
Maintenance should have been had the Landlord strictly complied with the
provisions of this Lease. If the Landlord overcharged the Tenant for Taxes and
Cost of Operation and Maintenance, the amount of the overcharge shall be applied
to future payments of Taxes and Cost of Operation and Maintenance next due
following the conclusion of the Arbitration. If the Arbitrator determines that
the Tenant was undercharged for Taxes and Cost of Operation and Maintenance,
Tenant shall pay the amount of such undercharge to the Landlord within thirty
(30) days following the issuance of the Arbitration Ruling.
4.08 Late Charges. Tenant hereby acknowledges that late payment by Tenant
-------------
to Landlord of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed on
Landlord by the terms of any trust deed covering the Property. Accordingly, if
any installment of Rent or other sum due from Tenant shall not be received by
Landlord or Landlord's designee within three (3) days after such amount shall be
due, Tenant
8
<PAGE>
shall pay to Landlord a late charge of Fifty Dollars ($50.00) plus interest at
two percent (2%) above prime of the amount due on each past due amount. The
parties hereby agree that such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted at
law or equity or pursuant to this Lease.
4.09 Acceleration of Payment. In the event a late charge becomes payable
------------------------
pursuant to Section 4.08 of this Lease for three installments of Rent within a
twelve (12) month period, then all subsequent Rent payments shall immediately
and automatically become payable by Tenant quarterly in advance instead of
monthly.
4.10 Definition of Rent. Any and all payments of Basic Rent and any and
-------------------
all Taxes and Cost of Operation and Maintenance, CPI Escalation Amounts, fees,
charges, costs, expenses, insurance obligations, late charges, and all other
payments, disbursements or reimbursements which are attributable to, payable by
or the responsibility of Tenant under this Lease (collectively "Rent")
constitute "Rent" within the meaning of California Civil Code Section 1951(a).
Any Rent payable to Landlord by Tenant for any fractional month shall be
prorated based on a three hundred sixty (360) day year. All Rent owed by Tenant
under this Lease shall be paid to Landlord in lawful money of the United States
of America at the location specified by Landlord pursuant to Section 26.01 of
the Lease. All payments of Rent owed by Tenant under this Lease shall be paid
without deduction, off-set abatement or counterclaim except as specifically
permitted by this Lease.
ARTICLE V
SECURITY DEPOSIT
----------------
5.01 Concurrently with Tenant's execution of this Lease, Tenant shall
deposit with Landlord the amount of the security deposit as set forth in the
Fundamental Lease Provisions hereof. Said sum shall be held by Landlord as a
security deposit for the faithful performance by Tenant of all of the terms,
covenants and conditions of this Lease, including but not limited to the
provisions relating to the payment of Rent and payment of any other 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 said deposit is so used or applied, Tenant shall,
within ten (10) days after written demand therefor, deposit the original amount
with Landlord. 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 such deposit.
If Tenant shall fully and faithfully perform every provision of the Leans to be
performed by it, the security deposit or any balance thereof shall be returned
to Tenant (or, at Landlord's option, to the last assignee of Tenant's interests
hereunder) at the expiration of this Lease Term and after Tenant has vacated the
Premises. With full knowledge of the rights and privileges created therein,
Tenant hereby expressly waives all rights and privileges under Section 1950.7 of
the Civil Code of the State of California and any amendments thereto, or of any
similar law which may hereafter be passed by the Stale of California.
ARTICLE VI
COMPLETION OF PREMISES
----------------------
6.01 Landlord's Work. The Premises shall be completed by Landlord
----------------
substantially in accordance with the description of the "Layout Work" set forth
in Exhibit "D" (Landlords Work Letter) attached hereto and incorporated herein
by this reference. Landlord's obligation for completion of the Premises shall be
defined and limited by said Exhibit "D" and Landlord shall not be required to
furnish or install any item not indicated thereon. The Premises shall be deemed
"Ready for Occupancy" on the date on which Tenant receives Landlord's
certificate that the work described in Exhibit "D", together with the common
facilities for access and service to the Premises, has been substantially
completed except for items of work and adjustment of equipment and fixtures
which can be completed after occupancy has been taken without causing
substantial interference with Tenant's use of the Premises (i.e., so-called
"punch list" items). The tenant improvement work shall be done by Landlord's
contractor, as set forth in Exhibit "D" and any additional changes or
improvements to the Premises shall be at Tenant's sole cost and expense.
6.02 Tenant Delays. If Tenant shall cause any delay in the construction of
--------------
the Premises, whether by reason of any failure by Tenant to comply with the
applicable time schedule set forth in Exhibit "D" or by Tenant's requirement of
materials or installations different from Landlord's standard tenant improvement
work as set forth in Exhibit "D", or by delays in performance or completion by a
party employed by Tenant, or by reason of changes in the work ordered by Tenant,
then notwithstanding anything to the contrary contained in said Exhibit "D", the
Commencement Date shall be the date which Landlord in its judgment determines
could have been expected to be the Commencement Date but for such delay.
9
<PAGE>
6.03 Excess Costs. Tenant shall pay to Landlord at the time and in the
-------------
manner specified in Exhibit "D" the entire balance of any and all costs of work
and improvements different from, supplemental or additional to, Landlord's
standard tenant improvement work as set forth in Exhibit "D.1". Tenant shall
also pay to Landlord the entire amount of any extra expenses incurred by
Landlord as specified in Exhibit "D" for any required alterations in the
Property, provided Landlord in its sole discretion agrees to such alterations,
as soon thereafter as Landlord determines such amount and submits a reasonably
detailed statement therefor to Tenant. Upon default by Tenant in payment of any
sum to be paid by Tenant pursuant to Exhibit "D", Landlord shall (in addition
to all other remedies) have the rights as in the case of default in Rent under
the Lease.
6.04 Tenant Improvements - Treatment at End of Lease. All Alterations and
------------------------------------------------
any Tenant Improvements (as defined in attached Exhibit "D") made by or for
Tenant, whether temporary or permanent in character, made either by Landlord or
Tenant, shall become Landlord's property at the expiration or termination of
this Lease, and shall be surrendered to Landlord in good condition upon
expiration of the Term or termination of this Lease without compensation to
Tenant; provided however, that at the election of Landlord, exercisable by
notice to Tenant at the time Landlord consents to the plans for the Alterations
or the Tenant Improvements or at any time prior to the termination of this
Lease, Tenant shall, at Tenant's sole expense, prior to the expiration of the
Term remove from the Premises Tenant Improvements and/or Alterations (or that
portion of Tenant Improvements and/or Alterations required by Landlord, pursuant
to such notice, to be removed by Tenant) and repair all damage to the Premises
caused by such removal. All of Tenant's personal property, including moveable
furniture, trade fixtures, and equipment not attached to the Property or the
Premises, shall be completely removed by Tenant prior to the expiration of the
Term. Provided, however, that Tenant shall repair all damage caused by such
removal prior to the expiration of the Term, and provided further, that any of
Tenant's personal property not so removed shall, at the option of Landlord,
automatically become the property of Landlord. Thereafter, Landlord may retain
or dispose of in any manner the personal property not so removed, without
liability to Tenant. Once the Alterations are completed, they shall be treated
the same as Tenant Improvements.
ARTICLE VII
USE OF THE PREMISES
-------------------
7.01 Permitted Use. Tenant shall use the Premises for general office
--------------
purposes only in keeping with the character of a first-class office building
complex and other lawful uses incidental to such office use and specifically for
the use as general office only. Tenant shall not use or permit the Premises
--------------------
to be used for any other purpose.
7.02 Effect of Use on Insurance. Tenant shall not do or permit anything
---------------------------
done in or about the Premises nor bring or keep anything therein which will in
any way increase the existing rate or affect any fire or other insurance upon
the Property or any of its contents, or cause a cancellation of any insurance
policy covering said Property or any part thereof or any of its contents, nor
shall Tenant sell or permit to be kept, used or sold in or about said Premises
any articles which may be prohibited by a standard form policy of insurance,
without limitation upon Landlord's remedies for Tenant's breach of this
Covenant, Tenant shall promptly upon demand reimburse Landlord for any
additional premium charged under such policy by reason of Tenant's failure to
comply with the provisions of this Article.
7.03 Prohibited Uses. Tenant shall not do or permit anything to be done in
----------------
or about the Premises which will in any way obstruct or interfere with the
rights of other tenants of the Property or injure them, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Further, Tenant
shall not violate any of the Rules and Regulations set forth in Exhibit "E".
7.04 Safety. Tenant shall keep the Premises equipped with all safety
-------
appliances required by law or ordinance or any other regulation of any public
authority because of any use made by Tenant. Tenant shall procure all licenses
and permits so required because of such use and, if requested by Landlord, shall
do any work so required because of such use at Tenants expense, it being
understood that the foregoing provisions shall not be construed to broaden in
any way the uses on the Premises permitted under this Lease.
7.05 No Illegal Use. Tenant shall not use the Premises in any way, or
---------------
permit anything to be done in or about the Premises, which will conflict with
Law, ordinance or governmental rule or regulation or requirement of duly
constituted public authorities now in force or which may hereafter be enacted or
promulgated. Tenant shall at its sole cost and expense promptly comply with all
laws, statutes, ordinances and governmental rules, regulations or requirements
now in force or which may hereafter be in force and the requirements of any
board of fire underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use or occupancy of the Premises.
10
<PAGE>
7.06 Hazardous Materials. Tenant shall not (either with or without
--------------------
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Property any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
hazardous substances or materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this Lease from any
release of hazardous materials on the Premises occurring while Tenant is in
possession, or elsewhere if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of this
Lease term.
7.07 No Warranty. Tenant agrees that neither Landlord nor any agent of
------------
Landlord has made any representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business, nor has Landlord agreed to
undertake any modification, alteration or improvement to the Premises except as
provided in this Lease, Tenant further agrees that neither Landlord nor any
agent of Landlord has made any representation or warranty with respect to the
physical condition of the Property, the land upon which it is erected, the
Parking Facilities, or the Premises, or the expenses of operation of the
Property, the Parking Facilities, or the Premises, or any other matter or thing
affecting or related to the Premises, except as herein expressly set forth, and
no rights, easements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this Lease. Except
as set forth in this Lease, Tenant shall inspect the Parking Facilities, the
Property and the Premises prior to the delivery of possession of the Premises
and agrees to take the same "as is", and acknowledges that the taking of
possession of the Premises by Tenant shall be conclusive evidence that the
premises, the Property and the Parking Facilities were in good and satisfactory
condition at the time such possession was so taken. Tenant acknowledges and
agrees that neither Landlord nor any agent of Landlord has made any
representation or warranty whatsoever or at all concerning (i) the safety of the
Premises, the Property, the Parking Facilities or of any part thereof, whether
for the use of Tenant or any other person, including Tenant's employees, agents,
invitees, or customers, or (ii) the existence or adequacy of any security
system(s) which may be installed or used by Landlord. All understandings and
agreements heretofore made between the parties hereto are merged in this Lease.
7.08 Compliance by Other Tenants. Landlord shall not be liable to Tenant
----------------------------
for any other occupant's or tenant's failure to conduct itself in accordance
with the provisions of this Article VII, and Tenant shall not be released or
excused from the performance of any of its obligations under this Lease in the
event of any such failure.
7.09 Substitution of Premises. At any time after the execution and
-------------------------
delivery of this Lease by Landlord and Tenant, Landlord shall have the right,
upon not less than thirty (30) days' prior written notice to Tenant, to
substitute for the Premises, for all purposes under this Lease, other premises
("Substituted Premises") of Landlord's selection within the Property containing
the same or larger amount of floor area as the Premises, provided that the Rent
for the Substituted Premises shall not increase over the Rent Tenant would have
had to pay for the Premises, and provided that Landlord shall (i) pay all
expenses reasonably incurred in physically packing and moving Tenant's personal
property and equipment to such new location, and (ii) furnish the Substituted
Premises with Tenant Improvements comparable in quality to those in the Premises
and (iii) pay all reasonable expenses for Tenant's new stationery and business
cards. Landlord may exercise this relocation right in its sole discretion.
ARTICLE VIII
SERVICE AND UTILITIES
---------------------
8.01 Landlord's Obligations. Subject to Article IV hereof, Landlord agrees
-----------------------
to make available to the Premises during reasonable hours of generally
recognized business days, and subject to the Rules and Regulations described in
Article XXV hereof and subject to governmental regulation, water and electricity
suitable for the intended use of the Premises, and heat and air conditioning
required in Landlord's reasonable judgment for the comfortable use and occupancy
of the Premises, trash removal, janitorial service and window washing customary
for similar buildings in the geographical area. Landlord shall also maintain and
keep lighted the common stairs, entries and restrooms in the Property.
11
<PAGE>
8.02 Interruption of Services. Landlord shall not be in default hereunder
-------------------------
or be liable for any damages directly or indirectly resulting from, nor shall
the Rent herein be abated by reason of (i) the installation, use or interruption
of use of any equipment in connection with the furnishing of any of the
foregoing utilities and services unless due to Landlord's gross negligence, (ii)
failure or delay in furnishing any such utilities or services when such failure
or delay is caused by Acts of God or the elements, the making of reasonable
repairs or improvements to the Premises or to the Property, labor disturbances
of any character, or any other accidents or conditions beyond the reasonable
control of Landlord, or (iii) the limitation, curtailment, rationing or
restriction on use of water or electricity, gas or any other form of energy or
any other service or utility whatsoever serving the Premises or the Property.
Furthermore, Landlord shall be entitled to cooperate voluntarily with the
efforts of national, state or local governmental agencies or utilities suppliers
in reducing energy or other resource consumption.
8.03 Force Majeure. Landlord and Tenant shall not be chargeable with,
--------------
liable for, or responsible to the other for anything or in any amount for any
failure to perform or delay caused by: fire; earthquake; explosion; flood;
hurricane; the elements; acts of God or the public enemy; actions, restrictions,
limitations or interference of governmental authorities or agents; war;
invasion; insurrection; rebellion; riots; strikes or lockouts; inability to
obtain necessary materials, goods, equipment, services, utilities or labor; or
any other cause whether similar or dissimilar to the foregoing which is beyond
the reasonable control of Landlord; and any such failure or delay due to said
causes or any of them shall not be deemed a breach of or default in the
performance of this Lease by Landlord or Tenant, provided, however, except as
provided to the contrary in Article XV, no such occurrence, shall relieve Tenant
of its obligation to pay Rent, or perform their other monetary obligations under
this Lease.
8.04 Tenant's Obligations. Tenant shall pay, prior to delinquency, all
---------------------
charges and fees required to be paid by Tenant under Article IV of this Lease.
Landlord may, but shall have no obligation to, install (i) at Tenant's cost
separate meters to measure the consumption by Tenant of utility resources
including but not limited to, electricity, or (ii) meters to measure such
utility resource consumption by two (2) or more tenants, the prorata share of
Tenant and each such other tenant(s) for both installation and resource usage to
be equitably determined by Landlord. Tenant shall not without the written
consent of Landlord, use any apparatus or device in the Premises, including
without limitation, electronic data processing machines, and machines using
excess lighting or using current in excess of 110 volts, which will in any way
increase the amount of electricity or water usually furnished or supplied for
use of the Premises as general office space; nor connect with electric current,
except through existing electrical outlets in the Premises, or water pipes, any
apparatus or device for the purposes of using electrical current or water. If
Tenant shall require water or electric current or any other resource in excess
of that usually furnished or supplied for use of the Premises as general office
space, Tenant shall first procure the consent of Landlord which Landlord may
refuse, to the use thereof. The cost of any electrical or other distribution
equipment above building standard minimum and of installation, maintenance, and
repair thereof shall be paid for by Tenant; space for electrical or other
distribution equipment (including but not limited to electrical panels,
switches, feeders, subfeeders and transformers) shall be provided in the
Premises as required by code and good space planning procedures, as determined
by Landlord. Tenant agrees to pay Landlord promptly upon demand by Landlord for
all such water, electric current or other resource consumed, as shown by said
meters, at the rates charged by the local public utility, furnishing the same,
plus any additional expense incurred in keeping account of the water, electric
current or other resource so consumed. Tenant shall be responsible for finding
space within the Premises for Tenant's telephone system, equipment, and cable
and shall obtain permits required by law and Tenant shall be responsible at its
sole cost and expense for the installation thereof. Any sums payable pursuant to
the foregoing provisions of this Section 8.04 shall be considered additional
rent and may be added to any installment of rent thereafter becoming due, and
Landlord shall have the same remedies for a default in payment of such sum as
for a default in the payment of rent.
8.05 Tenant Signing.
---------------
A. Lobby Directory. The ground-level floor of the Property shall include a
----------------
directory, where Tenant's name as defined in this Lease shall be listed at the
option and expense of Tenant, (i) alphabetically, or (ii) Tenant shall be
grouped separately in alphabetical order. Tenant shall have the right to
designate in writing to Landlord the name of each executive and/or professional
employee at the Premises who shall be so listed; provided that Tenant shall not
be entitled to have so listed more than one (1) such name for each full one
thousand (1,000) square feet of Rentable Area of the Premises.
B. Suite Identity. Landlord, at Landlord's sole cost and expense, shall
---------------
provide Tenant with Suite Number Designation Signage. Tenant, at Tenant's sole
cost and expense, is obligated to purchase signage identifying Tenant's business
name pursuant to this Lease, in compliance with Landlord's signage and design
program and which signing shall be purchased through Landlord only. No other
signage shall be permitted.
12
<PAGE>
ARTICLE IX
MAINTENANCE AND REPAIRS
-----------------------
9.01 Landlord's Obligations.
-----------------------
A. Landlord shall maintain in good condition and good repair the structural
elements of the Property and the public and common areas of the Property and the
Systems, as the same may exist from time to time, except for reasonable wear and
tear, and except as provided in Section 8.01 to the contrary. Landlord shall
have no obligation to make repairs under this Section 9.01 until a reasonable
time after receipt of written notice of the need for such repairs. In no event
shall any payments owed by Tenant under this Lease be abated, nor shall Landlord
have any liability for interruption or interference in Tenant's business, on
account of Landlord's failure to make repairs under this Section 9.01.
B. Riser Cable. Landlord will maintain the telephone cable it has installed
------------
inside the Property. Landlord, however, shall not be responsible for
interruption of service transmission, installation, and/or quality of
intra-building network cable.
9.02 Tenant's Obligations.
---------------------
A. Tenant shall maintain the Premises at Tenant's sole cost and expense in
good order, condition and repair including the interior surfaces of the
ceilings, walls and floors, all doors, cabinetry, interior windows and glass,
all plumbing, pipes, electrical wiring, switches, fixtures, building standard
furnishings, special items in excess of standard tenant improvements, and
equipment whether or not installed by Landlord at Tenant's request including but
not limited to the initial installation. Tenant hereby waives the right to make
repairs at Landlord's expense under the provisions of any applicable laws.
B. Tenant agrees to repair any damage to the Premises or the Property
caused by or in connection with the removal of any articles of personal
property, business or trade fixtures, machinery, equipment, cabinetwork,
furniture, movable partition or permanent improvements or additions, including
without limitation thereto, repairing the floor and patching and painting the
walls where required by Landlord to Landlord's reasonable satisfaction, all at
the Tenant's sole cost and expense.
C. In the event Tenant fails to maintain the Premises in good order,
condition and repair, Landlord may (but shall not be obligated to) give Tenant
notice to do such acts as are reasonably required to so maintain the Premises.
In the event that after such notice Tenant shall fail to promptly commence such
work and diligently prosecute it to completion, then Landlord shall have the
right to do such acts and expend such funds at the expense of Tenant as are
reasonably required to perform such work. Any amount so expended by Landlord
shall be paid by Tenant promptly after demand with interest from the date of
such work.
ARTICLE X
RIGHTS RESERVED TO LANDLORD
---------------------------
10.01 Right of Entry to Make Repairs. Landlord shall have the right to
-------------------------------
enter the Premises at all reasonable times for the purpose of making any
alterations, additions, improvements or repairs to the Premises or the Property
as Landlord may deem necessary or desirable or as may be required by Law,
without liability to Tenant and without Tenant having the right to claim
damages, constructive eviction, or rent abatement. Landlord shall at all times
have and retain a key with which to unlock all of the doors in, upon and about
the Premises, excluding Tenant's vaults and safes. Notwithstanding any contrary
provision of this Section 10.01, Landlord shall have the right to enter the
Premises during business hours without the consent of Tenant, however, Landlord
shall take all reasonable steps to avoid interference with Tenant's operation of
its business. Landlord shall have the immediate right of entry at any time in an
emergency.
10.02 Property Name Change. Landlord reserves to itself and shall at any
---------------------
and all times have the right to change the name or street address of the
Premises or Property.
10.03 Signs. Landlord reserves to itself and shall at any and all times
------
have the right to install, maintain and modify signs on the exterior and
interior of the Property, except within the Premises.
10.04 Remodeling. Landlord reserves to itself and shall at any and all
-----------
times have the right to decorate, remodel, alter or otherwise repair the
Premises for reoccupancy during the last six (6) months of the term hereof if
Tenant has vacated the premises, or any time after Tenant abandons the Premises.
10.05 Alterations to Common Areas. Landlord may, from time to time, make
----------------------------
alterations, modifications, and rehabilitation to the Property, which might
cause certain annoyance and inconvenience to Tenant in connection with such
work, without liability to Tenant and without Tenant having the right to claim
damages including but not limited to claims of breach of quiet enjoyment,
constructive eviction, or rent abatement as long as Tenant is able to, or does,
conduct business operations from the Premises. Landlord reserves to itself and
shall at any and all times have the right to do or permit to be done any work in
or about the exterior of the property.
13
<PAGE>
10.06 Business in Property. Landlord reserves to itself and shall at any
---------------------
and all times have the right to grant to anyone the exclusive right to conduct
any business or render any service in the Property, provided such exclusive
right shall not operate to exclude Tenant from the use expressly permitted by
this Lease.
10.07 Other Tenancies. Landlord reserves to itself and shall at any and
----------------
all times have the right to effect such other tenancies in the Property as
Landlord in the exercise of its sole business judgment shall determine to best
promote the interest of the Property. Tenant does not rely on the fact nor does
Landlord represent that any specific tenant or number of tenants shall during
the term of this Lease occupy any space in the Property.
ARTICLE XI
ALTERATIONS AND ADDITIONS
-------------------------
11.01 Tenant's Rights To Make Alterations. Following the date on which
------------------------------------
Tenant first occupies the Premises, Tenant, at its sole cost and expense, shall
have the right upon receipt of the Landlord's prior written consent to make
alterations, additions, or improvements to the Premises in accordance with this
Section 11.01 and which are standard for office use. Provided, however, Landlord
shall not be required to consent to any alterations, additions, or improvements
if such alterations, additions or improvements adversely affect the utility of
the Premises for future tenants, alter or affect the exterior appearance of the
Property, affect the structural integrity of the Property or the plumbing,
mechanical, electrical or HVAC systems servicing the Property (Systems), or are
otherwise prohibited under this Lease. Such permitted alterations, additions,
and improvements to the Premises made by or for Tenant following the date on
which Tenant first occupies the Premises are collectively called "Alterations".
All such Alterations shall be made in conformity with the requirements of
Section 11.02 below.
11.02 Installation of Alterations. Any Alterations installed by Tenant
----------------------------
during the Term shall be done in strict compliance with all of the following:
A. No such work shall proceed without Landlord's prior written approval of
(1) Tenant's contractor(s); (2) receipt of certificates of insurance from a
company or companies which are permitted to do business in the State of
California, who must have a financial rating of at least an AXIII status as
rated in the most recent edition of Best's Insurance Reports, evidencing
compliance with the insurance requirements for Combined Single Limit Bodily
Injury and Property Damage Insurance covering comprehensive general liability
and automobile liability, in an amount not less than Three Million Dollars
($3,000,000.00) per occurrence and endorsed to show Landlord and Landlord's
Manager as additional insureds, and for workers' compensation as required by
law, endorsed to show a waiver of subrogation by the insurer to any claims
Tenant's contractor may have against Landlord or Landlord's Manager; and (3)
detailed plans and specifications for such alterations.
B. All such work shall be done in conformity with a valid building permit
and/or all other permits or licenses when and where required, copies of which
shall be furnished to Landlord before the work is commenced, and any work not
acceptable to any governmental authority or agency having or exercising
jurisdiction over such work, or not reasonably satisfactory to Landlord, shall
be promptly replaced and corrected at Tenant's expense. Landlord's approval or
consent to any such work shall not impose any liability upon the Landlord.
C. Tenant shall immediately reimburse Landlord for any expense incurred by
Landlord by reason of any work done by Tenant or Tenant's contractors, or by
reason of delays caused by such work or by reason of inadequate cleanup or by
reason of any damage to the Property.
D. All work by Tenant shall be scheduled through Landlord and shall be
diligently and continuously pursued from the date of its commencement through
its completion.
E. Tenant shall reimburse Landlord for any actual out-of-pocket costs and
expenses incurred by Landlord in reviewing the plans and specifications for the
work, plus a fee of fifteen percent (15%) of the cost to Tenant all due and
payable prior to commencement of the Alterations (materials, labor, and other
expenses) in connection with the Alteration.
F. Tenant or Tenant's Contractor shall obtain any bonds required by
Landlord.
11.03 Tenant Security Systems. If Tenant wishes to establish or install at
------------------------
tenants sole cost and expense any automated and/or non-automated security system
in, on or about the Premises, Tenant shall first notify Landlord of Tenant's
plan for any such system, and Landlord shall have the right to review and
approve or disapprove said plan in Landlord's sole and absolute discretion. If
Landlord approves any such plan and Tenant establishes or installs any automated
and/or non-automated security system in, on or about the Premises, should such
system adversely affect the Premises or the Property or the desirability of the
Premises or Property as office space, or as an office building, or have an
adverse affect on other Tenants, Landlord shall have the right to review
Tenant's security system from time to time and by written notice require
tenant to remove or make
14
<PAGE>
such changes in personnel and/or equipment, at Tenant's sole cost and expense
and without any liability to Landlord as Landlord in its sole discretion deems
necessary. Tenant shall make said required changes within five (5) days
following receipt of such notice.
ARTICLE XII
INDEMNITY
---------
12.01 Hold Harmless. Except for the willful misconduct or gross negligence
--------------
of Landlord, Tenant shall indemnify and hold Landlord harmless from and defend
Landlord against any and all claims or liability for any injury or damage to any
person or property whatsoever (i) occurring in, on or about the Premises, and
(ii) occurring in, on or about the Common Areas and Parking Facilities, when
such injury or damage is caused in part or in whole by the act, neglect, fault
or omission of any duty with respect to the same by Tenant, its agents,
contractors, employees or invitees. Tenant shall further indemnify and hold
Landlord harmless from and against any and all claims arising from any breach or
default in the performance of any obligation on Tenant's part to be performed
under the provisions of this Lease, or arising from any act or negligence of
Tenant, or any of its agents, contractors, employees and from and against all
costs, attorneys fees, expenses and liabilities incurred in the defense of any
such claim or any action or 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 expenses by counsel
reasonably satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to person in, upon or about the Premises from any cause, and Tenant
hereby waives all claims in respect thereof against Landlord, except for damages
resulting from Landlord's willful misconduct or gross negligence. Landlord shall
not be liable for any damages arising from any act or neglect of any other
tenant of the Property.
12.02 Exemption of Landlord from Liability. Except for the willful
-------------------------------------
misconduct or gross negligence of Landlord, Landlord shall not be liable to
Tenant for any compensation or reduction of Rent by reason of inconvenience or
annoyance or for loss of business arising from the necessity of Landlord or its
agents entering the Premises for any of the purposes authorized in this Lease,
or for repairing the Premises or any portion of the Property, however the
necessity may occur. In case Landlord is prevented or delayed from making any
repairs, alterations or improvements, or furnishing any services or performing
any other covenant or duty to be performed on Landlord's part pursuant to the
provisions of this Lease, by reason of any cause beyond Landlord's reasonable
control, including without limitation the causes set forth in section 8.03,
Landlord shall not be liable to Tenant therefor, nor, except as expressly
otherwise provided in Articles XV and XVI, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises. Tenant hereby agrees
that Landlord, except for the gross negligence of Landlord, its agents and
employees, shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other person
in or about the Premises, nor shall Landlord be liable for injury to the person
of Tenant, Tenant's employees, agents or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause whatsoever. Landlord shall not be liable for any damages
arising from any act or neglect of any other tenant of the Property, theft,
fire, act of God, public enemy, injunction, riot, strike, insurrection, war,
court order, requisition, or order of governmental body or authority, or any
other matter reasonably beyond the control of Landlord.
ARTICLE XIII
TENANT'S INSURANCE
------------------
13.01 Insurance. Tenant shall at Tenant's own cost and expense, and with
----------
an insurance company acceptable to Landlord obtain and keep, in full force and
effect, the following insurance coverage:
A. Liability Insurance. A policy of comprehensive general liability and
--------------------
property damage insurance (including automobile, personal injury, broad form
contractual liability and broad form property damage) under which tenant is
named as the insured and Landlord, Landlord's Agent and mortgagees (whose names
shall have been furnished to Tenant) are named as additional insureds and under
which the insurer agrees to indemnify and hold the Landlord, its Agent and all
applicable mortgagees harmless from and against all cost, expense and/or
liability arising out of or based upon the hold harmless obligation in Section
12.01 of this Lease. The minimum limits of liability shall be a combined single
limit with respect to each occurrence of not less than One Million Dollars
($1,000,000.00). The policy shall contain a cross liability endorsement and
shall be primary coverage for Tenant and Landlord for any liability arising out
of Tenant's and Tenant's employees use, occupancy or maintenance of the premises
and all areas appurtenant thereto.
15
<PAGE>
B. Property Insurance. On all its personal property and Tenant
-------------------
Improvements located in the Property, a policy of All Risk insurance inclusive
of standard fire and extended coverage insurance, naming Landlord and Landlord's
agent and Tenant as named Insureds, with vandalism and malicious mischief
endorsements, to the extent of one hundred percent (100%) of the full
replacement value (as Landlord and Tenant may reasonably determine from time to
time) of Tenant's personal property and the Tenant Improvements. Landlord will
not be required to carry insurance of any kind on any Alterations or Tenant
improvements, on Tenant's furniture or furnishings, or on any of Tenant's
fixtures, equipment, improvements, alterations or appurtenances under this
Lease; and Landlord shall not be obligated to repair any damage thereto or
replace the same.
C. Worker's Compensation. Worker's Compensation and Employer's Liability
----------------------
insurance as required by law.
D. Business Interruption. Loss of income and business interruption
----------------------
insurance in such amounts as will reimburse Tenant for direct or indirect loss
of earnings attributable to all perils commonly insured against by prudent
tenants or attributable to prevention of access to the Premises or to the
Property as a result of such perils.
E. Other Insurance. Any other forms of insurance as the Tenant, the
----------------
Landlord, or the mortgagees may reasonably require from time to time in form,
in amounts and for insurance risks against which a prudent tenant would protect
itself.
F. Technical Requirements. Tenant shall provide Landlord, prior to the
-----------------------
Commencement Date, and thereafter as Landlord may reasonably request,
certificates issued by the insurance companies which are providing coverage,
which insurance companies are permitted to do business in the state of
California, which must have a financial rating of at least an AXIII status as
rated in the most recent edition of Best's Insurance Reports, evidencing
compliance with the above insurance requirements and naming Landlord and
Landlord's Manager as additional insureds. All policies shall provide for notice
of renewal to Landlord not less than thirty (30) days prior to expiration, and
shall provide for notice to Landlord of cancellation prior to said cancellation.
Landlord may upon thirty (30) days' notice to Tenant, require an increase of the
above liability limits if Landlord deems it to be inadequate when compared to
the then existing comparable office lease practice in the area in which the
Property is located, or as Landlord may reasonably require. The limits of said
insurance shall not, however, limit the liability of Tenant under Section 12.01
above. Tenant shall have the right to provide such insurance coverage pursuant
to blanket policies obtained by the Tenant provided such blanket policies
expressly afford coverage to the Premises and to Tenant as required by this
Lease.
13.02 Assumption of Risk. Tenant, as a material part of the consideration
-------------------
to Landlord, hereby assumes all risk of damage to Tenant's business and personal
property or injury to persons, in, upon or about the Premises from any cause and
Tenant hereby waives all such claims against Landlord. Landlord and Landlord's
Employees shall not be liable for any damage to any of Tenant's personal
property entrusted to Landlord or Landlord's Employees, nor for loss or damage
to any of Tenant's personal property by theft or otherwise. Tenant shall give
prompt notice to Landlord in case of fire or accidents in the Premises or in the
Property.
13.03 Waiver of Subrogation. Any policy or policies of fire, extended
----------------------
coverage or similar casualty insurance which Tenant obtains in connection with
the Premises shall include a clause or endorsement denying the insurer any right
of subrogation against Landlord to the extent rights have been waived by the
insured prior to the occurrence of injury or loss. Tenant hereby waives any
rights of recovery against Landlord for injury or loss due to hazards covered by
insurance to the extent of the injury or loss covered thereby.
13.04 Tenant's Failure to Insure. In the event Tenant fails to procure and
---------------------------
maintain insurance as required by this Article XIII, Landlord may, but shall not
be required to, procure and maintain same at the sole cost and expense of the
Tenant or deem such failure as a material breach of the Lease subject to all the
rights and remedies as provided herein and by law.
ARTICLE XIV
MECHANICS' LIENS
----------------
14.01 Not Permitted. Tenant hereby agrees that it will pay or cause to be
--------------
paid all costs for work done by it or caused to be done by it on the Premises.
Tenant shall not permit any mechanics', laborers', materialmen's or similar
liens on account of work done by Tenant or persons claiming under it to be filed
against the Property, nor against Tenant's leasehold interest in the Premises.
If Tenant shall desire to contest any claim of lien, it shall furnish Landlord
adequate security of the value or in the amount of the claim, plus estimated
costs and interest, or a bond of a responsible corporate surety in such amount
as is necessary to release the lien; provided, however, if a final judgment
establishing the validity or existence of a lien for any amount is entered,
Tenant shall pay and satisfy it.
16
<PAGE>
14.02 Posting. Landlord shall have the right at all reasonable times to
--------
post and keep posted on the Premises any notices which it deems necessary for
protection from such liens.
14.03 Landlord's Right to Cause Release. Subject to Section 14.01 above,
----------------------------------
if any such liens are filed, Landlord may, without waiving its rights and
remedies based on such breach of Tenant and without releasing Tenant from any of
its obligations, cause such liens to be released by any means it shall deem
proper, including payment and satisfaction of the claim giving rise to such
lien. Tenant shall pay Landlord at once, upon notice by Landlord, any sum paid
by Landlord to remove such liens, together with interest, and all related costs.
ARTICLE XV
DAMAGE AND RESTORATION
----------------------
15.01 Loss Covered By Insurance. If at any time prior to the expiration or
--------------------------
termination of this Lease, the Premises or the Property are wholly or partially
damaged or destroyed by a risk, the loss to Landlord from which is fully covered
by insurance maintained by Landlord or for Landlord's benefit, which risk
renders the Premises totally or partially inaccessible or unusable by Tenant in
the ordinary conduct of Tenant's business, then:
A. Repairs Which Can Be Completed Within One Year. If all repairs to such
-----------------------------------------------
Premises or Property can, in Landlord's judgment, be completed within one (1)
year following the date of notice to Landlord of such damage or destruction
without the payment of overtime or other premiums, and if such damage or
destruction is not the result of the intentional willful misconduct of Tenant or
Tenant's employees, guests or invitees, Landlord shall, at Landlord's expense,
repair the same and this Lease shall remain in full force and effect and a
proportionate reduction of Rental shall be allowed Tenant for such portion of
the Premises as shall be rendered inaccessible or unusable to Tenant, and which
is not used by Tenant, during the period of time that such portion is unusable
or inaccessible. There shall be no proportionate reduction of Rental by reason
of any portion of the Premises being unusable or inaccessible due to the
intentional willful misconduct of Tenant or Tenant's employees for a period
equal to five (5) business days or less.
B. Repairs Which Cannot Be Completed Within One Year. If such damage or
--------------------------------------------------
destruction is not the result of the willful misconduct of Tenant or Tenant's
employees, and if all such repairs cannot, in Landlord's judgment, be completed
within one (1) year following the date of notice to Landlord of such damage or
destruction without the payment of overtime or other premiums, Landlord may, at
Landlord's sole and absolute option, upon written notice to Tenant no later than
sixty (60) days after notice to Landlord of the occurrence of such damage or
destruction, elect to repair such damage or destruction at Landlord's expense,
and in such event, this Lease shall continue in full force and effect but the
Rent shall be proportionately reduced as provided in, and to the extent provided
in, section 15.01(A). If Landlord does not elect to make such repairs and
notifies Tenant of such election within the prescribed time period, then either
party may, by written notice to the other, terminate this Lease as of the date
of the occurrence of such damage or destruction, by notice given to the other.
15.02 Loss Not Covered By Insurance. If, at any time prior to the
------------------------------
expiration of this Lease, the Premises or the Property are totally or partially
damaged or destroyed from a risk, the loss to Landlord from which is not fully
covered by insurance maintained by Landlord or for Landlord's benefit, which
damage renders the Premises inaccessible or unusable to Tenant in the ordinary
course of its business, Landlord may, at its option, upon written notice to
Tenant no later than sixty (60) days after notice to Landlord of the occurrence
of such damage or destruction, elect to repair or restore such damage or
destruction, or Landlord may elect to terminate this Lease. If Landlord elects
to repair or restore such damage or destruction, this Lease shall continue in
full force and effect but the Rental shall be proportionately reduced as
provided in, and to the extent provided in, section 15.01(A). If Landlord does
not elect by notice to Tenant to repair such damage, or if the damage cannot, in
Landlord's judgment, be completed within one (1) year following the date of
notice to Landlord of such damage or destruction, this Lease shall terminate.
15.03 Loss Caused by Tenant or Tenant's Employees. If the Premises or the
--------------------------------------------
Property are wholly or partially damaged or destroyed as a result of the
negligence or willful misconduct or omission of Tenant or Tenant's Employees and
Landlord elects to undertake to repair or restore all such damage or
destruction, such repair and restoration shall be at Tenant's sole cost and
expense, and this Lease shall continue in full force and effect without any
abatement or reduction in Rental or other payments owed by Tenant; provided
however, that Tenant shall be relieved of its obligation pursuant to this
Section 15.01(A) to the extent that insurance proceeds are collected by Landlord
with respect to insurance obtained by Landlord as part of Cost of Operation and
Maintenance, in which case Tenant shall be responsible for the payment of the
deductible and that portion not covered by the insurance.
17
<PAGE>
15.04 Destruction During Final Year. Notwithstanding anything to the
------------------------------
contrary contained in Sections 15.01, 15.02 or 15.03, if the Premises or the
Property are wholly or partially damaged or destroyed within the final twelve
(12) months of the Term or this Lease, Landlord may, at its option, by giving
Tenant notice no later than sixty (60) days after notice to Landlord of the
occurrence of such damage or destruction, elect to terminate this Lease.
15.05 Destruction of Tenant's Personal Property, Tenant Improvements or
----------------------------------------------------------------
Property of Tenant's Employees. In the event of any damage to or destruction of
- ------------------------------
the Premises or the Property, under no circumstances shall Landlord be required
to repair any injury, or damage to, or make any repairs to or replacements of,
Tenant's personal property or the Alterations or Tenant Improvements or any
other improvements installed in the Premises by Tenant or Landlord, and Tenant
shall repair and restore all such personal property and Tenant Improvements at
Tenant's sole cost and expense. Landlord shall have no responsibility for any
contents placed or kept in or on the Premises or the Property by Tenant or
Tenant's Employees.
15.06 Mutual Release. Upon any termination of this Lease under any of
---------------
the provisions of this Article, the parties shall be released thereby without
further obligation to the other from the date possession of the Premises is
surrendered to Landlord, except for items which have theretofore accrued and are
then unpaid.
15.07 Delay in Restoration. Tenant shall not be released from any of its
---------------------
obligations under this Lease by reason of fire or other casualty, except to the
extent and upon the conditions expressly stated in this Article. Notwithstanding
anything to the contrary contained in this Article, should Landlord be delayed
or prevented from repairing or restoring the damaged Premises by reason of acts
of God, war, governmental restrictions, inability to procure the necessary labor
or materials, or any other cause beyond the reasonable control of Landlord,
Landlord shall be relieved of its obligation to make such repairs or restoration
for a period equal to such delay or prevention.
15.08 Exclusive Remedy. This Section 15.08 shall be Tenant's sole and
-----------------
exclusive remedy in the event of damage or destruction to the Premises or the
Property, and Tenant, as a material inducement to Landlord entering into this
Lease, irrevocably waives and releases Tenant's rights under California Civil
Code Sections 1932 and 1933(4). No damages, compensation or claim shall be
payable by Landlord for any inconvenience, any interruption or cessation of
Tenant's business, or any annoyance, arising from any damage to or destruction
of all or any portion of the Premises or the Property.
ARTICLE XVI
CONDEMNATION
------------
16.01 Condemnation. If all or any part of the Premises shall be taken or
-------------
appropriated for public or quasi-public use by the right of eminent domain, with
or without litigation or transferred by agreement in connection with such public
or quasi-public use, either party hereto shall have the right at its option
exercisable within thirty (30) days of receipt of notice of such taking to
terminate this Lease as of the date possession is taken by the condemning
authority, provided, however, that before Tenant may terminate this Lease by
reason of taking or appropriation as provided hereinabove, such taking or
appropriation shall be of such an extent and nature as to substantially
handicap, impede or impair Tenant's use of the Premises. If any part of the
Property other than the Premises shall be so taken or appropriated, Landlord
shall have the right at its option to terminate this Lease. In the event of a
partial taking which does not result in a termination of this Lease, Basic Rent
shall be equitably abated to the extent Tenant's square footage has been taken.
A sale by Landlord under threat of condemnation shall constitute a "taking" for
the purpose of this Article.
16.02 Restoration. In the event of a partial taking which does not result
------------
in a termination of this Lease, Landlord shall proceed with reasonable diligence
to restore the remaining portion of the Premises (other than Tenant's property
or any of Tenant's goods, furniture or furnishings) as nearly as practicable to
its condition prior to such condemnation or taking. Tenant agrees that
Landlord's obligation to restore is limited by the provisions of Section 16.01
above.
16.03 Award. In the event of any condemnation or taking of all or a part of
------
the Property, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant, and Tenant hereby assigns to Landlord any and
all right, title and interest of Tenant now or hereafter arising in or to any
such award or any part thereof, and Tenant shall be entitled to receive no part
of such award; provided, however, that nothing shall preclude Tenant from
intervening in any such condemnation proceeding to claim or receive from the
condemning authority any compensation to which Tenant may otherwise lawfully be
entitled in such case with respect only to Tenant's personal property or for
relocation costs.
18
<PAGE>
16.04 Condemnation for a Limited Period. Notwithstanding the provisions of
----------------------------------
Sections 16.01, 16.02 and 16.03 above, if all or any portion of the Premises
shall be condemned or taken for governmental occupancy for a limited period,
this Lease shall not terminate, there shall be no abatement of Basic Rent or
additional rent payable hereunder, and Tenant shall be entitled to receive the
entire award therefor (whether paid as damages, rent or otherwise) unless the
period of governmental occupancy extends beyond the expiration of this Lease, in
which case Landlord shall be entitled to such part of such award as shall be
properly allocable to the cost of restoration of the Premises, and the balance
of such award shall be apportioned between Landlord and Tenant as of the date of
such expiration. If the termination of such governmental occupancy is prior to
expiration of this Lease, Tenant shall, to the extent an award has been made for
the purpose of restoring the Premises, after application for the diligent
pursuit of such award by Tenant, restore the Premises as nearly as possible to
the condition of the Premises prior to the condemnation or taking.
ARTICLE XVII
QUIET POSSESSION
----------------
17.01 Landlord covenants and agrees with Tenant that upon paying the Rent
and other monetary sums due under this Lease, and performing the covenants and
conditions on the part of Tenant to be performed hereunder, Tenant shall quietly
have, hold and enjoy the Premises during the term of this Lease.
ARTICLE XVIII
ESTOPPEL CERTIFICATE
--------------------
18.01 Tenant's Statement. Within ten (10) days after written request
-------------------
therefor from Landlord, Tenant shall execute and deliver to Landlord a statement
as Landlord may reasonably request, or as a prospective purchaser or
encumbrancer of the Property may request (i) certifying that this Lease is in
full force and effect, without modification (or if modified, stating the nature
of such modification and certifying that this Lease, as modified is in full
force and effect) and the date to which the rent and other charges are paid in
advance, if any, (ii) acknowledging that there are not any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if they are claimed,
and (iii} any other requirements of a prospective purchaser or encumbrancer of
the Premises. Any such statements may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Property. Failure by Tenant to
deliver the Estoppel Certificate within the ten (10) day period shall be deemed
to conclusively establish that this Lease is in full force and effect and has
not been modified except as may be represented by Landlord.
ARTICLE XIX
DEFAULTS
--------
19.01 The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
A. Failure to Pay Rent. If Tenant shall fail to make any payment of Rent
--------------------
owed by Tenant under this Lease, as and when due, and where such failure is not
cured within three (3) days following receipt of notice by Tenant from Landlord.
Such three (3) day notice is in lieu of, and not in addition to, any notice
required under Section 1161 of the California Code of Civil Procedure.
B. Abandonment. The abandonment or vacation of the Premises by Tenant for
------------
ten (10) consecutive days.
C. Non-Performance of Other Covenants. A failure by Tenant to observe and
-----------------------------------
perform any other provision of this Lease to be observed or performed by Tenant,
where such failure continues for ten (10) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of such default is
such that the same cannot reasonably be cured within such ten (10) day period
Tenant shall not be deemed to be in default if Tenant shall within such period
commence such cure and thereafter diligently prosecute the same to completion.
D. Bankruptcy; Assignment. The making by Tenant or by any guarantor of
-----------------------
this Lease of any general assignment for the benefit of creditors; the filing by
or against Tenant or by or against any guarantor of this Lease of a petition to
have Tenant or any guarantor of this Lease adjudged a bankrupt or of a petition
for reorganization or arrangement under any law relating to bankruptcy (unless
in the case of a petition filed against Tenant or any guarantor of this Lease,
the same is dismissed within sixty (60) days); the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets or all of
the assets of such guarantor of this Lease located at the Premises or of
Tenant's interest or of such guarantor's interest in this Lease where possession
is not restored to Tenant or to such guarantor within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
or such guarantor's assets located at the Premises or of Tenant's or such
guarantor's interest in this Lease, where such seizure is not discharged within
thirty (30) days. In the event Tenant files a petition for reorganization,
arrangement or liquidation under any law relating to bankruptcy, or such a
petition is involuntarily filed against Tenant, Landlord shall be entitled to
recover from
19
<PAGE>
Tenant, or any assignee or sublessee of Tenant's rights and obligations
hereunder, all reasonable attorney's fees and costs related to Landlord's
attempts to regain possession of the Premises or to cause an assumption (and
assignment) of this Lease by Tenant through the bankruptcy court. Any assignee
or sublessee of Tenant's interest in this Lease as a result of a bankruptcy
proceeding shall be jointly and severally liable with Tenant for payment of said
reasonable attorney's fees within ten (10) days of proper billing.
19.02 Recovery from Tenant on Termination. In the event of any such
------------------------------------
default by Tenant, then in addition to any other remedies available to Landlord
now or later permitted by law or in equity, Landlord shall have the immediate
option to terminate this Lease and all rights of Tenant hereunder by giving
written notice of such intention to terminate. In the event that Landlord shall
elect to so terminate this Lease then Landlord may recover from Tenant;
A. Past Rent. The worth at the time of award of any unpaid Rent or other
----------
charges which had been earned at the time of such termination; plus
B. Rent Prior to Award. The worth at the time of award of the amount by
--------------------
which the unpaid rent would have been earned after termination until the time of
award exceeds the amount of such rental loss Tenant proves could have been
reasonably avoided; plus
C. Rent After Award. The worth at the time of award of the amount by which
-----------------
the unpaid rent for the balance of the term of this Lease after the time of
award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided; plus
D. Proximately Caused Damages. Any other amount necessary to compensate
---------------------------
Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom; and
E. Additional Damages. At Landlord's election, such other amounts in
-------------------
addition to or in lieu of the foregoing as may be permitted from time to time by
applicable California law.
19.03 Worth at Time of Award. As used in Section 19.02(A) and 19.02(B)
-----------------------
above, the "worth at the time of award" is computed by allowing interest at the
Bank of America prime commercial rate plus two percent (2%), but not to exceed
the maximum rate of interest allowed by law. As used in Section 19.02(C) above,
the "worth at the time of award" is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
19.04 Vacation or Abandonment. In the event of the vacation or abandonment
------------------------
of the Premises by Tenant or in the event that Landlord shall elect to re-enter
as provided above or shall take possession of the Premises pursuant to legal
proceeding or pursuant to any notice provided by law, then if Landlord does not
elect to terminate this Lease as provided above, Landlord may from time to time,
without terminating this Lease, either recover all rent as it becomes due or
relet the Premises or any part thereof for such term and upon such terms and
conditions as Landlord in its sole discretion may deem advisable, Landlord
hereby reserving the right in such instances to make alterations and repairs to
the Premises.
19.05 Election to Terminate Lease. No re-entry into or taking of
----------------------------
possession of the Premises by Landlord pursuant to this Article shall be
construed as an election to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any reletting without
termination by Landlord because of any default by Tenant, Landlord may at any
time after such reletting elect to terminate this Lease for any such default.
19.06 Default by Landlord. Landlord shall not be deemed to be in default
--------------------
in the performance of any obligation required by it under this Lease, or under
any agreement executed in connection herewith, unless and until it has failed to
perform such obligation within twenty (20) days after receipt of written notice
by Tenant to Landlord, specifying wherein Landlord has failed to perform such
obligation provided, however, if the nature of Landlord's obligation is such
that thirty (30) days are required for its performance, then Landlord shall not
be deemed to be in default if it shall commence such performance within such
thirty (30) day period and thereafter diligently prosecute the same to
completion.
19.07 Right of Entry and Re-Let. In the event of any default by Tenant,
--------------------------
Landlord shall also have the right, with or without terminating this Lease, to
enter the Premises and remove all persons and personal property from the
Premises, such property being removed and stored in a public warehouse or
elsewhere at Tenant's sole cost and expense. No removal by Landlord of any
persons or property in the Premises shall constitute an election to terminate
this Lease. Such an election to terminate may only be made by Landlord in
writing, or decreed by a court of competent jurisdiction. Landlord's right of
entry shall include the right to remodel the Premises and re-let the Premises.
All costs incurred in such entry and re-letting shall be paid by Tenant. In the
event that Landlord shall elect to so relet, then rent received by Landlord from
such reletting shall be applied; first, to the payment of any indebtedness other
20
<PAGE>
than rent due hereunder from Tenant to Landlord; second, to the payment of any
cost of such reletting; third, to the payment of the cost of any alterations and
repairs to the Premises; fourth, to the payment of rent due and unpaid
hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same may become due and payable hereunder. Rents
collected by Landlord from any other tenant which occupies the Premises shall be
offset against the amounts owed to Landlord by Tenant. Tenant shall be
responsible for any amounts not recovered by Landlord from any other tenant. Any
payments made by Tenant shall be credited to the amounts owed by Tenant in the
sole order and discretion of Landlord. No entry by Landlord shall prevent
Landlord from later terminating this Lease by written notice.
19.08 Waiver of Redemption. Tenant hereby waives, for itself and all
---------------------
persons claiming by and under Tenant, all rights and privileges which it might
have under California Code of Civil Procedure 1174 and any present or future law
to redeem the Premises or to continue the Lease after being dispossessed or
ejected from the Premises.
19.09 Right to Perform. If Tenant fails to perform any covenant or
-----------------
condition to be performed by Tenant, Landlord may perform such covenant or
condition at its option, after notice to Tenant. All costs incurred by Landlord
in so performing shall immediately be reimbursed to Landlord by Tenant, together
with interest at the legal rate allowed by law, computed from the due date. Any
performance by Landlord of Tenant's obligations shall not waive or cure such
default. Landlord may perform Tenant's defaulted obligations at Tenant's sole
cost and expense without notice in the case of any emergency. All costs and
expenses incurred by Landlord, including reasonable attorney's fees (whether or
not legal proceedings are instituted) in collecting rent or enforcing the
obligations of Tenant under the Lease shall be paid by Tenant to Landlord upon
demand.
19.10 Remedies Not Exclusive. The rights and remedies of Landlord set
-----------------------
forth herein are not exclusive, and Landlord may exercise any other right or
remedy available to it under this Lease, at law or in equity.
19.11 Credit Reporting. Notwithstanding those terms and conditions
-----------------
contained herein, it is hereby agreed and understood by Tenant that in the
event Tenant fails to pay any sums due and owing under this Lease, when due
Landlord, Landlord may, at Landlord's sole and absolute discretion, take any and
all remedial measures necessary to effectuate payment of arrearages, including
but not limited to noticing any or all credit reporting agencies including TRW.
19.12 N.S.F. Checks. It is hereby agreed by and between the parties herein
--------------
that in the event Tenant's payment of Basic Rent and/or additional rent or any
such other costs or expenses required to be paid by Tenant under this Lease
shall be returned to Landlord for insufficient funds, Tenant shall pay forthwith
upon demand, the sum of Fifty Dollars ($50.00) as Landlord's administrative fee
per check. Further, it is agreed and understood that in the event Tenant tenders
a bad check to Landlord, Landlord may, in its sole discretion, require Tenant to
pay any future sum or sums required in this Lease by Cashier's Check for the
remainder of the lease term.
ARTICLE XX
SURRENDER OF PREMISES
---------------------
20.01 At the expiration or termination of this Lease, Tenant shall
surrender to Landlord the Premises and all alterations and additions thereto in
good order, repair and condition (except for ordinary wear and tear). Tenant
shall remove all personal property and trade fixtures prior to the expiration of
the term, including any signs, notices and displays placed by Tenant. Tenant
shall perform all necessary restoration, including, without limitation,
restoration made necessary by the removal of Tenant's personal property and
trade fixtures (or of any alterations required to be removed by Tenant pursuant
to the provisions of Section 6.04 hereof) prior to the expiration or termination
of this Lease.
Landlord can elect to retain or dispose of, in any manner, any
alterations, Tenant's personal property or trade fixtures that Tenant does not
remove from the Premises on expiration or termination of the term as allowed or
required by this Lease. Title to any such alterations, Tenant's personal
property or trade fixtures that Landlord elects to retain or dispose of on
expiration of the term shall vest in Landlord. Tenant waives all claims against
Landlord for any damage to Tenant resulting from Landlord's retention or
disposition of any such alterations, Tenant's personal property or trade
fixtures. Tenant shall be liable to Landlord for Landlord's costs for storing,
removing and disposing of any alterations, Tenant's personal property or trade
fixtures and shall indemnify and hold Landlord harmless from the claim of any
third party to an interest in said personal property.
ARTICLE XXI
ASSIGNMENT, SUBLEASE AND ENCUMBRANCE
------------------------------------
21.01 Right to Assign, Sublease and Encumber. Landlord and Tenant
---------------------------------------
recognize and specifically agree that this Section 21.01 is, in part, an
economic provision, like Rent, and that the Landlord's right to recapture, and
to share in excess Base Rent, was granted by Tenant to Landlord in consideration
of certain other economic concessions granted by Landlord to Tenant.
21
<PAGE>
Tenant may voluntarily assign or encumber its interest in this Lease or in
the Premises, or sublease all or any part of the premises, or allow any other
person or entity to occupy or use all or any part of the Premises, upon
complying with Section 21.02 and first obtaining Landlord's prior written
consent. Any assignment, encumbrance or sublease without Landlord's prior
written consent shall be voidable, at Landlord's election, and shall constitute
a default. No consent to an assignment, encumbrance, or sublease shall
constitute a further waiver of the provisions of this Section. Tenant hereby
agrees to use Landlord's sublease and/or Assignment form.
21.02 Procedure For Assignment and Sublease. Tenant shall advise Landlord
--------------------------------------
by notice of (1) Tenant's intent to assign or encumber this Lease, or sublease
all or part of the Premises, (2) the name of the proposed assignee or sublessee,
and evidence reasonably satisfactory to Landlord that such proposed assignee or
sublessee is comparable in reputation, stature and financial condition to the
other tenants then leasing comparable space in the Property) and (3) the terms
of the proposed assignment or subletting, and Landlord shall, within thirty (30)
days of receipt of such notice, and any additional information reasonably
requested by Landlord concerning the proposed assignee's or sublessee's
financial responsibility, elect one of the following:
A. Consent to such proposed assignment, encumbrance or sublease;
B. Refuse such consent, which refusal shall be on reasonable grounds; or
C. Elect to terminate the Lease in the event of an assignment, or in the
case of a sublease, terminate this Lease as to the portion of the Premises
proposed to be sublet for the remaining Term of the Lease, which termination
will be effective forty-five (45) days after Landlord sends Tenant a timely
notice electing to exercise such termination right.
21.03 Affiliated Companies/Restructuring of Business Organization.
------------------------------------------------------------
Occupancy of all or part of the Premises by parent, subsidiary, or affiliated
companies of Tenant shall not be deemed an assignment or subletting provided
that such parent, subsidiary or affiliated companies were not formed as a
subterfuge to avoid the obligation of this Section 21.01. If Tenant is a
corporation, unincorporated association, trust or general or limited
partnership, then the sale, assignment, transfer or hypothecation of any shares,
partnership interest, or other ownership interest of such entity which from time
to time in the aggregate exceeds twenty-five percent (25%) of the total
outstanding shares shall be deemed an assignment subject to the provisions of
this Section 21.01.
21.04 Reasonable Grounds for Withholding Landlord's Consent to a
----------------------------------------------------------
Proposed Assignment or Sublease. Without limiting Landlord's right to refuse to
- --------------------------------
consent to an assignment or sublease for good, sufficient and reasonable cause,
it shall not be unreasonable for Landlord to withhold its consent to an
assignment or a sublease because the proposed assignee or sublessee:
A. Is a government entity;
B. Is an occupant of the Property, and the Property is not ninety-five
percent (95%) leased;
C. Does not have a financial condition sufficient to perform the
obligations under the proposed sublease or assignment;
D. Intends to use the Premises for a use not permitted under Article VII
and/or Exhibit "E".
E. Would violate exclusives granted by Landlord to other tenants of the
Property by use of the Premises; and
F. would result in more people working at, or visiting, the Premises than
the number of people who worked at, or visited, the Premises, at the time when
Tenant was the sole occupant of the Premises.
21.05 Tenant Not Released. Unless Landlord elects to terminate the entire
--------------------
Lease pursuant to Section 21.07, in the event of Landlord's consent to an
assignment or sublease, Tenant shall not be released from any of its obligations
pursuant to this Lease.
21.06 Landlord's Right to Assign. Landlord shall have the right to sell,
---------------------------
convey, transfer, and/or assign (collectively "Transfer") any of its rights and
obligations under the Lease. After such Transfer, Landlord shall be relieved of
any and all obligations under this Lease.
21.07 Recapture. If Tenant proposes to assign this Lease, Landlord may, at
----------
its option, exercisable upon written notice to Tenant within thirty (30) days
after Landlord's receipt of the notice from Tenant set forth in Section 21.01
above, elect to recapture the Premises and terminate this Lease. If Tenant
proposes to sublease all or part of the Premises, Landlord may, at its option
exercisable upon written notice to Tenant, within thirty (30) days after
Landlord's receipt of the notice from Tenant set forth in Section 21.01 above,
elect to recapture such portion of the Premises as Tenant proposes to sublease
and, upon such election by Landlord, this Lease shall terminate as to the
portion of the Premises recaptured. In the event a portion only of the Premises
is
22
<PAGE>
recaptured the rental payable under this Lease shall be proportionately
adjusted. If Landlord does not elect to recapture pursuant to this Section
21.01, Tenant may thereafter enter into a valid assignment or sublease with
respect to the Premises, provided Landlord, pursuant to this Article, consents
thereto, and provided further that (a) such assignment or sublease is executed
within ninety (90) days after notification to Landlord of such proposal, and (b)
the rental therefor is not less than that stated in such notification. Tenant
acknowledges Landlord's right to recapture is a material term bargained for by
Landlord.
21.08 Fees for Review. In the event that Tenant shall request to assign,
----------------
transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest
therein, or sublet the Premises or any part thereof, Tenant shall pay to
Landlord a non-refundable Five Hundred Dollars ($500.00) fee for Landlord's time
and processing efforts, and for expenses incurred by Landlord in connection with
reviewing such transaction. In addition to such fee, Tenant shall pay to
Landlord in the event Landlord retains the services of an attorney to review the
transaction, all reasonable attorneys' fees incurred by Landlord in connection
therewith but not more than Five Hundred Dollars ($500.00). Tenant shall pay
such nonreimbursable fee and such attorneys' fees to Landlord concurrently with
Tenant's execution of Landlord's form document. Payment should be in the form of
a cashiers check, after written request therefor, and such payment shall be a
condition to any approval by Landlord.
21.09 Collection. If this Lease is assigned, or if the Premises or any
-----------
part thereof is sublet or occupied by anybody other than Tenant, Landlord may
collect rent from the assignee, subtenant or occupant and apply the net amount
collected to the rent herein reserved and retain any excess rent so collected,
but no such assignment, subletting, occupancy or collection shall be deemed a
waiver of Tenant's covenant set forth in the first sentence of Section 4.01
above, nor shall such assignment, subletting, occupancy or collection be deemed
an acceptance by Landlord of the assignee, subtenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained.
ARTICLE XXII
SUBORDINATION
-------------
22.01 Subordination and Attornment. Tenant covenants and agrees that it
-----------------------------
will execute without further consideration any and all instruments desired by
Landlord or Landlord's First Mortgagee subordinating this Lease in the manner
requested by landlord to all ground or underlying leases and to the lien of any
mortgagee and/or First Deed of Trust or other encumbrance which may now or
hereafter affect the Premises, together with all renewals, modifications,
consolidations, replacements or extensions thereof; provided that any or lien or
encumbrancer relying on such subordination or such additional agreements will
covenant with Tenant that this Lease shall remain in full force and effect, and
Tenant shall not be disturbed in the event of sale, foreclosure or other actions
so long as Tenant is not in default hereunder. Tenant agrees to attorn to the
successor in interest of Landlord following any transfer of such interest either
voluntarily or by operation of law and it recognizes such successor as Landlord
under this Lease. However, if Landlord or any such ground lessor or First
Mortgagee so elects, this Lease shall be deemed prior in lien to any ground
lease, mortgage, First Deed of Trust or other encumbrance upon or including the
Premises regardless of date of recording and Tenant will execute a statement in
writing to such effect at Landlord's request.
22.02 Non-Disturbance. As long as a default by Tenant does not occur,
----------------
regardless of any Subordination pursuant to Section 22.01 or attornment pursuant
to section 22.01, Tenant's right to occupy under this Lease shall not be
disturbed except as specifically permitted by Sections of this Lease other than
this Section 22.02. However, the person who replaces the Landlord shall not be
liable for modification to this Lease not consented to by such person, or any
offsets or defenses which Tenant had against the previous Landlord or for any
prepaid Rent or Security Deposit not received by the new Landlord.
ARTICLE XXIII
SALE OF BUILDING BY LANDLORD
----------------------------
23.01 In the event of any sale or exchange of the Property, other than a
transfer for security purposes only, Landlord shall be entirely freed and
relieved of all liability under this Lease, including any obligations arising
out of any act, occurrence or omission relating to the Premises or this Lease
which occur after the consummation of such sale or exchange and/or assignment.
This Lease shall not be affected by any such sale and Tenant agrees to attorn to
the purchaser or assignee provided all Landlord's obligations hereunder are
assumed in writing by the transferee.
23
<PAGE>
ARTICLE XXIV
HOLDING OVER
------------
24.01 Surrender of Possession. Tenant shall surrender possession of the
------------------------
Premises immediately upon the expiration of the Term or termination of the
Lease. If the Tenant shall continue to occupy the Premises after such expiration
or termination with the consent of the Landlord, then unless Landlord and Tenant
have otherwise agreed in writing, the Tenant shall be a tenant from
month-to-month. All the terms, provisions and conditions of the Lease shall
apply to this month-to-month tenancy except those terms, provisions and
conditions pertaining to the Term, and except that the Base Rent shall be
immediately adjusted upward upon the expiration or termination of the Lease to
two hundred percent (200%) of the then prevailing Basic Rent plus Tenant's Pro
Rata Share of Taxes and Cost of Operation and Maintenance on the date of the
expiration or termination of the Lease ("Holdover Rent"). This month-to-month
tenancy may be terminated by Landlord or Tenant upon fifteen (15) days' prior
notice to the nonterminating party. In the event that Tenant fails to surrender
the Premises upon such termination or expiration or if Tenant occupies the
Premises without Landlord's written consent, then Tenant shall pay Landlord
Basic Rent equal to the Holdover Rent and shall indemnify and hold Landlord
harmless against all loss or liability resulting from or arising out of Tenant's
failure to surrender the Premises, including, but not limited to, any amounts
required to be paid to any tenant or prospective tenant who was to have occupied
the Premises after said termination or expiration and any related attorneys'
fees and brokerage commissions, and any amounts permitted to be recovered
pursuant to the California Civil Code and the California Code of Civil
Procedure.
24.02 Payment of Money After Termination. No payment of money by Tenant to
-----------------------------------
Landlord after the termination of this Lease by Landlord, or after the giving of
any notice of termination to Tenant by Landlord which Landlord is entitled to
give Tenant under the Lease, shall reinstate, continue or extend the Term of
the Lease or shall affect any such notice given to Tenant prior to the payment
of such money, it being agreed that after the service of such notice of the
commencement of any suit by Landlord to obtain possession of the Premises,
Landlord may receive and collect when due any and all payments owed by Tenant
under the Lease, and otherwise exercise its rights and remedies. The making of
any such payments by Tenant shall not waive such notice, or in any manner affect
any pending suit or judgment obtained.
24.03 Indemnification. If Tenant fails to surrender the Premises upon the
----------------
expiration of this Lease despite demand to do so by Landlord, Tenant shall
indemnify and hold Landlord harmless from all loss or liability, including
without limitation, any claim made by any succeeding tenant founded on or
resulting from such failure to surrender. The provisions of this Section 24.03
are in addition to and do not affect Landlord's right of re-entry or any rights
of Landlord hereunder or as otherwise provided by Law.
ARTICLE XXV
RULES AND REGULATIONS
---------------------
25.01 The Rules and Regulations attached to this Lease as Exhibit "E", as
well as such reasonable rules and regulations as may be hereafter adopted by
Landlord for the safety, care, utilization and cleanliness of the Premises and
the Property, and the preservation of good order thereon, are hereby expressly
made a part hereof, and Tenant agrees to comply with such rules and regulations
and the violation of any of them shall constitute a default by Tenant under this
Lease. If there is a conflict between the rules and regulations and any of the
provisions of this Lease, the provisions of this Lease shall prevail. Landlord
shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Property of any of said rules and regulations.
ARTICLE XXVI
NOTICES
-------
26.01 Whenever any notice, approval, consent, request or election is given
or made pursuant to this Lease it shall be in writing. Communications and
payment shall be addressed if to Landlord at Landlord's Notice Address as set
forth below, or at such other address as may have been specified by prior
notice to Tenant, and if to Tenant, at Tenant's Notice Address as set forth
below, or at such other place as may have been specified by prior notice to
Landlord, or at the Premises. Any communication so addressed shall be deemed
duly served if personally delivered or if mailed by registered or certified
mail, return receipt requested. If Landlord by notice to Tenant at any time
designates some other person to receive payments or notices, all payments or
notice thereafter by Tenant shall be paid or given to the agent designated until
notice to the contrary is received by Tenant from Landlord.
24
<PAGE>
To Tenant: Harden & Company, Inc.,
a California Corporation
3460 Wilshire Boulevard, Suite 407
Los Angeles, CA 90010
With a copy to: N/A
To Landlord: Total Properties Management Company
3450 Wilshire Boulevard, Suite 400
Los Angeles, California 90010
ARTICLE XXVII
WAIVER
------
27.01 No delay or omission in the exercise of any right or remedy of
Landlord on any default by Tenant shall impair such right or remedy or be
construed as a waiver.
27.02 The receipt and acceptance by Landlord of delinquent rent shall not
constitute a waiver of any other default, it shall constitute only waiver of
timely payment for the particular rent payment involved.
27.03 No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises, shall constitute an acceptance or the
surrender of the Premises by Tenant before the expiration of the term. Only a
notice from Landlord to Tenant shall constitute acceptance of the surrender of
the Premises and accomplish a termination of the Lease.
27.04 Any waiver by Landlord of any default must be in writing. One or
more waivers by Landlord of a breach by Tenant of any covenant, term or
condition of this Lease shall not be construed as a waiver by Landlord of a
subsequent breach by Tenant of the same covenant, term or condition. The consent
or approval of Landlord to or of any act by Tenant of a nature requiring consent
or approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
ARTICLE XXVIII
PARKING
-------
28.01 So long as Tenant complies with the terms, provisions and conditions
of this Lease, Landlord shall maintain and operate, or cause to be maintained
and operated, automobile parking facilities ("Parking Facilities") in, adjacent
to or within a reasonable distance from the Property. Tenant's privileges during
such time with respect to the Parking Facilities shall be in accordance with the
provisions of the attached Parking Agreement (Exhibit "F"). Such parking charges
may be increased by Landlord from time-to-time upon thirty (30) days' notice to
Tenant.
28.02 Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty as to the suitability of the parking
areas, or as to the availability of parking space, for the conduct of Tenant's
business.
28.03 Landlord shall have certain rights and authority relative to the use
and control of the parking areas, including, without limitation, the right to
rearrange the parking spaces and improvements of the parking areas; to take all
or any portion of the parking areas for the purpose of maintaining, repairing or
restoring same, and to do and perform such other acts in, to and with respect to
the parking areas at the sole discretion of Landlord.
28.04 Tenant acknowledges that such parking rights are non-assignable and
any parking spaces designated for Tenant's use shall not be sublet but may be
used exclusively for Tenant's partners, associate members and employees (or
officers).
ARTICLE XXIX
MISCELLANEOUS
-------------
29.01 Authorization to Sign Lease. If Tenant is a corporation, each
----------------------------
individual executing the Lease on behalf of Tenant represents and warrants that
he/she is duly authorized to execute and deliver the Lease on behalf of Tenant
in accordance with a duly adopted resolution of Tenant's Board of Directors, and
that the Lease is binding upon Tenant in accordance with its terms, and Tenant
shall, concurrently with its execution of the Lease, deliver to Landlord upon
its request a certified copy of a resolution of its Board of Directors
authorizing the execution of the Lease. If Tenant is a partnership or trust,
each individual executing the Lease on behalf of Tenant represents and warrants
that he/she is duly authorized to execute and deliver the Lease on behalf of
Tenant in accordance with the terms of such entity's partnership agreement or
trust agreement, respectively, and that the Lease is binding upon Tenant in
accordance with its terms, and Tenant shall, concurrently with its execution of
the Lease, deliver to Landlord upon its request such certificates or written
assurances from the partnership or trust as Landlord may request authorizing the
execution of the Lease.
25
<PAGE>
29.02 Titles. The titles of this Articles and Sections are for convenience
-------
only and are not to be considered in construing the provisions of this Lease.
29.03 Relationship or Parties. Nothing herein contained, either in the
------------------------
method of computing rent or otherwise, shall create between the parties hereto,
or be relied upon by others as creating, any relationship of partnership,
association, joint venture, or otherwise. The sole relationship of the parties
hereto shall be that of Landlord and Tenant.
29.04 Laws. The laws of the State of California shall govern the validity,
-----
performance and enforcement of this Lease.
29.05 Reimbursement. Except as provided for herein, in the event that at
--------------
any time during the term of this Lease either Landlord or Tenant shall institute
any action or proceeding against the other relating to the provisions of this
Lease, of any default thereunder, then the unsuccessful party in such action or
proceeding agrees to reimburse the prevailing party therein for the reasonable
expense of attorneys' fees and disbursements incurred therein by the prevailing
party.
29.06 Fees. In the event that at any time during the term of this Lease,
-----
Landlord serves Tenant with a notice to pay (or perform) or quit and Tenant
subsequently cures, or is permitted by Landlord to cure, such delinquency or
non-performance, Tenant shall pay to Landlord all of Landlord's reasonable
service of process fees, filing fees (for any civil action) and reasonable
attorney fees.
29.07 Gender and Headings. The word "Tenant" shall be deemed and taken to
--------------------
mean each and every person or party mentioned as a tenant herein, be the same
one or more; and if there shall be more than one tenant, any notice required or
permitted by the terms of this Lease may be given by or to any one thereof, and
shall have the same force and effect by or to all thereof. The use of the neuter
singular pronoun to refer to Tenant shall be deemed a proper reference even
though Tenant may be an individual, a partnership, a corporation or a group of
two or more individuals or corporations. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural sense where
there is more than one Tenant and to either corporations, associations,
partnerships or individuals, males or females, shall in all instances be assumed
as though in each case fully expressed.
29.08 Agreements and Representations. It is understood that there are no
-------------------------------
oral agreements or representations between the parties hereto affecting this
Lease, and this Lease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements, or representations and understandings, if
any, between the parties hereto or displayed by Landlord to Tenant with respect
to the subject matter thereof, and none thereof shall be used to interpret or
construe this Lease. There are no representations or warranties between the
parties except as expressly set forth in this Lease, and all reliance with
respect to same is solely upon the representations and agreements contained in
this Lease.
29.09 Determination of Provisions. If any of the provisions of this Lease
----------------------------
shall be determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provisions of this Lease and all such
other provisions shall remain in full force and effect; and it is the intention
of the parties hereto that if any provision of this Lease is capable of two
constructions, one of which would render the provision void and the other of
which would render the provision valid, then the provision shall have the
meaning which renders it valid.
29.10 Lease Modification. This Lease shall not be modified or amended in
-------------------
any respect except by written agreement executed by Landlord and Tenant.
29.11 Guarantees. In the event that this Lease shall have been guaranteed,
-----------
any such guarantee shall be deemed a material part of the consideration for
Landlord's execution of this Lease. In the event the Guarantor under any such
guarantee is or becomes bankrupt or insolvent, makes an assignment for the
benefit of creditors, or institutes or is the subject of any proceeding under
the Bankruptcy Act or other similar law for the protection of creditors (or, if
the Guarantor is a partnership or consists of more than one (1) person or
entity, if any partner of the partnership or other such person or entity is or
becomes bankrupt or insolvent, institutes any such proceeding, or makes an
assignment for the benefit of creditors), then Landlord shall have the option to
terminate this Lease upon thirty (30) days' written notice unless Tenant, within
such thirty (30) day period, provides Landlord with either (1) a substitute or
additional guarantor satisfactory to Landlord and Landlord's lender, or (2)
adequate assurance of the performance of each and every obligation of Tenant
hereunder, satisfactory to Landlord and Landlord's lender.
29.12 Lender Approval. Tenant acknowledges and agrees that this Lease is
----------------
subject to the approval of Landlord's lender, and Tenant hereby agrees to
cooperate with Landlord's lender, and Tenant hereby agrees to make such
modifications of this Lease as shall be reasonably requested by Landlord's
lender.
26
<PAGE>
29.13 Recording. Tenant agrees not to record this Lease, a short form
----------
memorandum of this Lease or any other document evidencing this Lease, but upon
the expiration of the term or if this Lease is terminated before the term of
this Lease expires, the parties agree that, upon the request of either party, a
recordable instrument acknowledging the date of termination shall be executed by
the parties and recorded.
29.14 Payment. Any rental payments or other sums received from Tenant or
--------
any other person in connection with this Lease shall be conclusively presumed to
have been paid by Tenant or on Tenant's behalf, unless (i) Landlord has been
given prior written notice to the contrary by Tenant, and (ii) Landlord has
consented to payment of such sums by such person other than Tenant. In no event
shall the foregoing be construed as requiring Landlord to accept any rental
payments or other sums from any person other than Tenant.
29.15 Obligations. The obligations of this Lease shall run with the land,
------------
and this Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that only the
original Landlord named herein shall be liable for obligations accruing before
the beginning of the Term, and thereafter the original Landlord names herein and
each successive owner of the Premises shall be liable only for obligations
accruing during the period of its ownership.
29.16 Brokers. Other than none ("Broker"), Tenant hereby warrants and
-------- ----
represents that it has not employed or dealt with any other broker or finder in
connection with the Lease or the Property. Tenant agrees to defend, indemnify
and hold Landlord harmless from any and all liability Landlord may incur because
of the claim by any broker, other than Broker, that claims to be entitled to a
commission or fee because they have represented Tenant in connection with this
transaction.
29.17 Time. Time is of the essence of this Lease and each and every
-----
provision hereof. All the terms, covenants and conditions contained in this
Lease to be performed by either party, if such party shall consist of more than
one person or organization, shall be deemed to be joint and several, and all
rights and remedies of the parties shall be cumulative and non-exclusive of any
other remedy at law or in equity.
29.18 Scope of Landlord's Obligation. The obligations of Landlord under
-------------------------------
this Lease do not constitute personal obligations of the individual entities
which comprise Landlord nor of their respective partners, directors, officers or
shareholders, and Tenant shall look solely to the real estate that is the
subject of this Lease and to no other assets of the entities comprising Landlord
for satisfaction of any liability in respect of this Lease and will not seek
recourse against the individual entities which comprise Landlord nor against
their respective partners, directors, officers or shareholders nor against any
of their personal assets for such satisfaction.
29.19 Diminution in Light and Air. Any diminution or shutting off of light
----------------------------
or air by any structure which may be erected on lands adjacent to or in the
vicinity of the Property shall not affect the Lease, abate any payment owed by
Tenant under the Lease or otherwise impose any liability on Landlord.
29.20 Confidentiality. This Lease document and the terms of this Lease,
----------------
and the covenants, obligations, and conditions contained in this Lease shall
remain strictly confidential. Tenant agrees to keep such terms, covenants,
obligations and conditions strictly confidential and not to disclose the Base
Rent or any of the economic concessions to any other landlord, tenant,
prospective tenant, or broker. Provided, however, Tenant may provide a copy of
this Lease to a non-party solely in conjunction with Tenant's reasonable and
good faith effort to secure an assignee or sublessee for the Premises.
29.21 Good Faith: Wherever this Lease grants Landlord or Tenant the right
to take action, exercise discretion, establish rules and regulations or make
allocations or other determinations, Landlord and Tenant shall act reasonably
and in good faith and take no action which might result in the frustration of
the reasonable expectations of a sophisticated Landlord and sophisticated Tenant
concerning the benefits to be enjoyed under this Lease.
29.22 Conditions for Tenant's Termination. No act or failure to act on the
------------------------------------
part of Landlord which would entitle Tenant under the terms of this Lease, or by
law, to be relieved of Tenant's obligations hereunder or to terminate this
Lease, shall result in a release or termination of such obligations or a
termination of this Lease unless (a) Tenant shall have first given written
notice of Landlord's act or failure to act to Landlord's First Mortgagee of
record if any, specifying the act or failure to act on the part of Landlord
which could or would give basis to Tenant's rights and (b) such First Mortgagee,
after receipt of such notice, has failed or refused to correct or cure the
condition complained of within a "reasonable time" thereafter; but nothing
contained in this Section 29.22 shall be deemed to impose any obligation on any
such First Mortgagee to correct or cure any condition.
27
<PAGE>
29.23 Exhibits. Exhibits "A", "B", "C", "D", "E", "F" and "G" attached to
---------
this Lease are hereby incorporated by this reference and made a part of the
Lease. In the event of variation or discrepancy, the duplicate original hereof
(including Exhibits, if any) held by Landlord shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date and year written below.
Landlord: Tenant:
Zufu Properties Co., Ltd., Harden & Company, Inc., a California
a California corporation corporation
("Landlord"), by and through
Total Properties Management Co.,
managing agent for the Property
("Landlord's Manager").
/s/ Donna L. Dalton /s/ Earl Wiklund
- ---------------------------------- -------------------------------------
By: Donna L. Dalton By: Earl Wiklund
Its: Senior Vice President Its: Chief Executive Officer
Dated: 7/24/97 Dated: 7/24/97
Federal Tax I.D. Number.
94-2311657
28
<PAGE>
ADDENDUM
Addendum to that certain Office Lease (the "Lease") dated July 14, 1997 by and
between Zufu Properties Co., Ltd., a California corporation ("Landlord"), by and
through Total Properties Management Co., as managing agent for the Property
described below ("Landlord's Manager") and Harden & Company, Inc., a California
corporation ("Tenant"), for the premises commonly known as Suite 407 (the
"Premises"), consisting of approximately 1,559 rentable square feet located on
the 4th floor of the 3460 Wilshire Boulevard tower in that certain office
complex located at 3440, 3450, 3460, and 3470 Wilshire Boulevard, Los Angeles,
CA 90010 (the "Property").
1. TENANT IMPROVEMENTS: Landlord shall deliver the Premises to Tenant in
--------------------
"as-is" condition.
IN WITNESS WHEREOF, the parties hereto have executed the Addendum as of
the date and year written below.
IF TENANT SHALL BE A CORPORATION, THE AUTHORIZED OFFICERS MUST SIGN ON
BEHALF OF THE CORPORATION AND INDICATE THE CAPACITY IN WHICH THEY ARE SIGNING.
Landlord: Tenant:
Zufu Properties Co., Ltd., Harden & Company, Inc., a California
a California corporation corporation
("Landlord"), by and through
Total Properties Management Co.,
managing agent for the Property
("Landlord's Manager").
/s/ Donna L. Dalton /s/ Karl Wiklund
- ---------------------------------- -------------------------------------
By: Donna L. Dalton By: Earl Wiklund
Its: Senior Vice President Its: Chief Executive Officer
Dated: 7/24/97 Dated: 7/24/97
29
<PAGE>
EXHIBIT A
[FLOOR PLAN]
30
<PAGE>
EXHIBIT B
[SITE PLAN]
31
<PAGE>
EXHIBIT "C"
ACCEPTANCE AND STATEMENT OF PREMISES, AREA AND TERM
TO: ____________________________ DATE:______________
____ Wilshire Blvd., Suite ____
Los Angeles, CA 90010
("Tenant")
RE: Term/Area/Acceptance of Premises
In accordance with Article 3.05 of your Lease, please acknowledge your
acceptance of possession of your Premises and your agreement that the
Commencement Date of this Lease is ___________, and the Termination Date of the
Lease is __________________. In accordance with Section 2.02 and described in
Section 1.01(B) of your Lease, please acknowledge your agreement that the
rentable area of the Premises is ___ square feet and that the Basic Annual Rent
as set forth in section 4.01 and described in Section 1.02(A) of your Lease is
______________________________ and ___/100ths Dollars ($_____________ ) to be
paid as follows: months one (1) through _____________ ( ) - ________________
__________________ and /100ths Dollars ($_________ S per month less the "Base
Rent Concession" described in Paragraph l of the Addendum attached to the Lease
in the amount of _____________________ for months ______ (___) through _______
(___) of the term of the Lease. Also, in accordance with Section 1.01(C) and
described in Section 4.02(E) of your Lease, the Proportionate Share is _______%.
Be advised that pursuant to Section 3.05 of your Lease, your failure to
countersign and return this letter to the undersigned within ten (10) days
following your receipt thereof shall automatically constitute your agreement to
the matters hereinabove set forth.
Tenant hereby agrees to forward all necessary and normal day-to-day
Lease requirements, such as rental and other charges, insurance certificates,
property tax payments, etc., to the following, unless otherwise designated by
Landlord:
Total Properties Management Company
3450 Wilshire Blvd., Ste. 400
Los Angeles, CA 90010
Tenant hereby agrees with the dates and amounts set forth above and
further acknowledges its acceptance of possession of the Premises.
Very truly yours,
Landlord: Tenant:
Zufu Properties Co., Ltd., a
California corporation ("Landlord"),
by and through Total Properties
Management Co., as managing agent
for the Property ("Landlord's Manager")
- -------------------------------- --------------------------------
By: Donna L. Dalton By:
Its: Senior Vice President Its: ___________________________
Dated: __________________________ Dated; _________________________
32
<PAGE>
EXHIBIT "D"
LANDLORD'S WORK LETTER
BUILDING STANDARD IMPROVEMENTS
Central Plaza
3440-50-60-70 Wilshire Boulevard
Los Angeles, California 90010
Intentionally omitted.
33
<PAGE>
EXHIBIT "D.1"
BUILDING STANDARD
CENTRAL PLAZA
3440-50-60-70 Wilshire Boulevard
Los Angeles, California 90010
Intentionally omitted.
34
<PAGE>
EXHIBIT "E"
RULES AND REGULATIONS
(1) No Sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Property or the Premises or to the inside of any exterior window or glass
wall, without the prior written consent of Landlord and Landlord shall have the
right to remove any such sign, placard, picture, advertisement, name or notice
without notice to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by Landlord's contractor, and all
Suite signage shall be consistent with the Property's standard signage and
graphics program, and no other signage design shall be permitted without
Landlord's prior written consent. Tenant shall not affix any paper, plastic,
cardboard or signage material to the corridor door(s) or adjacent walls other
than the Property standard.
(2) No Tenant shall obtain for use upon the Premises, ice, drinking or
bottled water, towel or other similar service or permit barbering or
bootblacking services on the Premises, except from persons authorized by the
Landlord and at the hours and under the regulations fixed by the Landlord.
(3) The directory of the Property will be provided exclusively for the
display of the name and location of Tenant only and Landlord reserves the right
to exclude any other names therefrom.
(4) The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress to and egress from their respective Premises. The
halls, passages, exits, entrances, elevators, stairways, balconies and roof are
not for the use of the general public and the Landlord shall in all cases retain
the right to control and prevent access thereto by all persons whose presence in
the judgment of the Landlord shall be prejudicial to the safety, character,
reputation and interests of the Property and its tenants, provided that nothing
herein contained shall be construed to prevent such access to persons with whom
the Tenant normally deals in the ordinary course of Tenant's business unless
such persons are engaged in illegal activities. No tenant, employee, invitees,
contractor or agent of any Tenant shall go upon the roof of the Property.
(5) Landlord will furnish Tenant, free of charge, with two keys to each
entrance door lock in the Premises upon initial occupancy. Tenant shall pay a
reasonable charge to Landlord for any additional keys and lock changes or
repairs required by Tenant after initial occupancy. All keys to offices, rooms
and toilet rooms shall be obtained from Landlord's Management office and Tenant
shall not from any other source duplicate, obtain keys or have keys made. Tenant
shall not alter any lock or install new additional locks or bolts on any door
of its Premises or within its premises. Tenant, upon the termination of its
tenancy, shall deliver to Landlord the keys of all doors which have been
furnished to Tenant, and in the event of loss of any keys so furnished, shall
pay the Landlord therefor.
(6) The toilet rooms, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of the
invitees, contractors or agents shall have caused it.
(7) Tenant shall not overload the floor of the Premises or mark, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof. No boring, cutting or stringing wires
shall be permitted except with the prior written consent of the Landlord and as
Landlord may direct. No tenant shall lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of the Premises in
any manner except as approved by Landlord. Landlord reserves the right to direct
contractors approved by Landlord as to where and how telephone, telegraph,
computer wires or any other electrical wires are to be introduced to and in the
Premises. Tenant shall not cut or bore holes for wires. The expense of repairing
any damage resulting from a violation of this rule or removal of any floor
covering shall be borne by the tenant by whom or by whose contractors, employees
or invitees the damage shall have been caused.
(8) Furniture, freight, pictures, equipment, safes, bulky matter or
supplies of any description shall be moved in or out of the Property only after
the Manager has been furnished with prior notice and given his/her approval and
only during such hours and in such manner as may be reasonably prescribed by the
Landlord from time to time, taking into consideration safety issues, security
issues and inconvenience for other tenants. The scheduling and manner of all
Tenant move-ins and move-outs shall be subject to the discretion and approval of
Landlord, and said move-ins and move-outs shall only take place after 6:00 P.M.
on weekdays, on weekends, or at such other times as Landlord may designate. Nor
shall Tenant place furniture or material in the lobby, Corridors or common areas
of the Property. Landlord shall have the right to approve or disapprove the
movers or moving company employed by Tenant, and Tenant shall cause said movers
to use only the loading facilities and elevators designated by Landlord. In the
event Tenant's movers damage the elevator or any other part of the Property,
35
<PAGE>
Tenant shall immediately pay to Landlord the amount required to repair said
damage. The moving of safes or other fixtures or bulky or heavy matter of any
kind must be done under the Manager's supervision, and the person employed by
any Tenant for such work must be acceptable to Landlord, but such persona shall
not be deemed to be agents or servants of the Manager or Landlord, and Tenant
shall be responsible for all acts of such persons. Landlord reserves the right
to inspect all safes, freight or other bulky or heavy articles to be brought
into the Property and to exclude from the Property all safes, freight or other
bulky or heavy articles which violate any of these Rules or Regulations or the
Lease of which these Rules and Regulations are a part.
(9) Tenant must use Landlord's standard window treatment in all
exterior window offices and on all corridor glass partitions. Landlord is not
obligated to clean or repair same. No awning or other projection shall be
permitted on any part of the Premises. Tenant shall not place anything against
or near glass partitions or doors or windows which may appear unsightly from
outside the Premises of Property. All electric ceiling fixtures hung in offices
along the perimeter of the Property must be fluorescent, of a quality, type,
design and bulb color approved by Landlord. Neither the interior nor exterior of
any windows shall be coated or otherwise sunscreened without consent of
Landlord.
(10) The sashes, sash doors, skylights, windows, doors and vents that
reflect or admit light and air into the halls, passages or other public places
in the Property shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the windowsills. No tenant shall
throw anything out of doors, windows, skylights or down passages.
(11) Tenant shall not employ any person or persons other than the
janitor of Landlord for the purpose of cleaning the Premises unless otherwise
agreed to by Landlord. Except with the written consent of Landlord, no person or
persons other than those approved by Landlord shall be permitted to enter the
Property for the purpose of cleaning the same. Tenant shall not cause any
unnecessary labor by reason of tenant's carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall in no way be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of any Tenant by the janitor or
any other employee or any other person. Janitor service shall include ordinary
dusting and cleaning by the Janitor assigned to such work and shall not include
cleaning of carpets or rugs, except normal vacuuming, or moving of furniture and
other special services. Janitor service will not be furnished on nights when
rooms are occupied after 9:30 P.M. Exterior window cleaning shall be performed
only by Landlord, at such times as Landlord may determine. All interior glass
maintenance and cleaning shall be the responsibility of the Tenant.
(12) Tenant shall not use, keep or permit to be used or kept any food
or noxious gas or substance in the Premises, or permit or suffer the Premises to
be occupied or used in a manner offensive or objectionable in Landlord's sole
discretion to other occupants of the Property by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having business
therein, nor shall any animals, birds or reptiles be brought in or kept in or
about the Premises or the Property. No Tenant shall make or permit to be made
any unseemly or disturbing noises or disturb or interfere with occupants of the
or neighboring buildings or Premises or those having business with them whether
by the use of any musical instrument, radio, phonograph, unusual noise, or in
any other way. No Tenant shall throw anything out of doors or down the
passageways.
(13) The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the use of
the Premises for general office purposes. If tenant shall occupy or permit any
portion of his Premises to be occupied as an office for a public stenographer or
typist, of for the manufacture or sale of liquor, narcotics, or tobacco in any
form, or as a medical office, or as a barber shop or manicure shop. No Tenant
shall advertise for laborers giving an address at the Premises. The Premise
shall not be used for lodging or sleeping or for any illegal purposes.
(14) No Tenant shall use or keep in the Premises or the Property any
kerosene, gasoline or inflammable or combustible or explosive, chemical
substance, fluid or material other than limited quantities thereof reasonably
necessary for time operation or maintenance of office equipment, or, without
Landlord's prior written approval, use any method of heating or air conditioning
other than that supplied by Landlord. No Tenant shall use or keep or permit to
be used or kept any foul obnoxious gas or substance in the Premises, or permit
or suffer the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or to other occupants of the Property by reason of
noise, odors or vibrations, or interfere in any way with other Tenants or those
having business therein.
36
<PAGE>
(15) On Saturdays, Sundays, legal holidays and other days between the
hours of 6:00 P.M. and 7:00 A.M., access to the Property, or the halls,
corridors, elevators or stairways in the Property, or to the Premises may be
refused unless the person seeking access is known to the employee in charge of
the Property in charge and has pass or is properly identified. The Landlord
shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Property of any person. In case of invasion,
mob, riot, public excitement, or other commotion, the Landlord reserves the
right to prevent access to the Property during the continuance of same by
closing the doors or otherwise, for the safety of the Tenants and protection of
property in the Property and the Property. Landlord reserves the right to close
and keep locked all entrance and exit doors of the Property on Saturdays,
Sundays, legal holidays and on other days between the hours of 6:00 P.M. and
7:00 A.M., and during such further hours as Landlord may deem advisable for the
adequate protection of said Property and the Property of its Tenants.
(16) Landlord shall furnish heating, ventilation and, when necessary in
Landlord's judgment, air conditioning during the hours of 8:00 A.M. to 6:00 P.M.
Monday through Friday and 9:00 A.M. to 1:00 P.M. Saturdays, except for holidays.
In the event Tenant requires lighting, electrical energy, heating and/or air
conditioning during off-hours, Sundays or holidays, Tenant shall give Landlord
at least forty-eight (48) hours' notice of such requirement and Tenant shall pay
for services at such rate as may be required by Landlord, in Landlord's sole
discretion.
(17) Tenant shall see that the doors of the Premises are closed and
securely locked before leaving the Property and must observe strict care and
caution that all water faucets or water apparatus are entirely shut off before
Tenant or Tenant's employees leave the Property, and that all electricity shall
likewise be carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Tenant shall make good all injuries sustained by other
tenants or occupants of the Property or Tenant. Tenant assumes any and all
responsibility for protecting its Premises from theft, robbery and pilferage,
which includes keeping doors locked and other means of entry to the Premises
closed.
(18) Tenant shall not disturb or canvass any occupant of the Property
nor shall Tenant solicit in the Property and Tenant shall cooperate to prevent
any such disturbance, canvassing and/or solicitation.
(19) Landlord reserves the right to exclude or expel from the Property
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or shall in any manner do any act in violation of
any of the rules and regulations of the Property.
(20) The requirements of Tenant will be attended to only upon
appropriate application to the office of the Property by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instructions from Landlord,
and no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific written instructions from Tenant.
(21) No vending machine or machines of any description shall be
installed, maintained or operated upon the Premises or in the Property without
the written consent of the Landlord.
(22) Tenant agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Landlord and Tenant also
shall provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security regulations.
Tenant shall not permit or cause others to smoke in the common areas of the
Property as smoking is strictly prohibited under Municipal Code Section 41.51.
(23) Landlord may waive any one or more of these Rules and Regulations
for the benefit of Tenant or any other tenant, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Property.
Landlord shall not be liable to any Tenant of the Property for the non
observance or violations of the Rules and Regulations, the attached Lease or any
other lease for Premises within the Property.
(24) Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
37
<PAGE>
(25) The Premises shall not be used for the storage of merchandise held
for sale to the general public, or for lodging or sleeping or for manufacturing
of any kind, nor shall the Premises be used for any improper, immoral, illegal,
or objectionable purposes. No cooking shall be done or permitted by any tenant
on the Premises, except that use by Tenant of Underwriters Laboratory-approved
equipment for brewing coffee, tea, hot chocolate and similar beverages shall be
permitted, and the use of a microwave shall be permitted, provided that such
equipment and use thereof is in accordance with all applicable federal, state,
county and city laws, codes, ordinances, rules and regulations. No Tenant shall
cause or permit any unusual or objectionable odors to be produced or permeate
the premises or the Property.
(26) Without written consent of Landlord, Tenant shall not use the name
of the Property in connection with or in promotion or advertising the business
of Tenant except Tenant's address. Landlord may prohibit any advertising by
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Property or its desirability as an office building and upon written notice from
Landlord, Tenant shall refrain from and discontinue such advertising.
(27) Tenants shall not engage or pay any employees on the Premises
except those actually working for such tenant on the Premises. Tenants shall not
advertise for laborers giving an address at the Premises.
(28) Tenant shall not park its vehicles in any parking areas designated
by Landlord as areas for parking by visitors to the Property. Tenant shall not
leave vehicles in the Property parking areas overnight nor park any vehicles in
the Property parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheeled trucks. Landlord may, in its sole
discretion, designated separate areas for bicycles and motorcycles.
(29) These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Property.
(30) Landlord reserves the right to make such other reasonable Rules
and Regulations, and rescind or amend any Rule or Regulation, in its judgment,
which may from time to time be needed for safety, security, care and cleanliness
of the Property and for the preservation of good order therein. Tenant agrees to
abide by all such Rules and Regulations hereinabove stated and any additional
rules and regulations which are adopted.
(31) Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests.
(32) Landlord reserves the right to stop service of the elevator,
plumbing, ventilating, air conditioning and electric systems, when necessary by
reason of accident or emergency or for repairs, alterations or improvements when
in the judgment of Landlord deemed desirable or necessary, until said repairs,
alterations or improvements shall have been completed, and shall further have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning or electric service, when prevented from so doing
by strike accident or by any cause beyond Landlord's reasonable control, or by
laws, rules, orders, ordinances, directions, regulations or requirements of any
federal, state, county or municipal authority or failure of gas, oil or other
suitable fuel supply or inability by exercise of reasonable diligence to obtain
gas, oil, or other suitable fuel. It is expressly understood and agreed that any
covenants on Landlord's part to furnish any service, or to perform any act or
thing for the benefit of tenant, shall not be deemed breached if Landlord is
unable to furnish or perform the same by virtue of a strike or labor trouble or
any other cause whatsoever beyond Landlord's control.
(33) Tenant shall keep all window coverings closed when the Property
air conditioning, heating and ventilation systems are in operation. Landlord
shall not be responsible for room temperatures if Tenant fails to comply with
the Rule.
(34) Tenant shall not connect any apparatus, device, conduit or pipe to
the Property chilled or hot water supply lines or to the air conditioning or
plumbing systems. Neither tenant nor tenant's servants, employees, agents,
visitors, licensees or contractors shall, at any time, enter the mechanical
installations or facilities of the Property or adjust, tamper with, touch or
otherwise in any manner affect said installation or facilities.
(35) Tenant's use of electric current shall never exceed the electrical
capacity of the floor or Property or cause such capacity to be exceeded.
(36) The word "tenant" as used herein shall include any tenant's
employees, contractors, or sub-tenants.
38
<PAGE>
(37) Tenant agrees to abide by all governmental rules and regulations
pertaining to thermostatic control of the temperature on the Premises as
required by said governmental rules and regulations, and agrees to maintain and
keep the temperature for heat at or below the maximum temperature allowed from
time to time by said governmental rules and regulations. Tenant agrees to
indemnify and hold Landlord free and harmless from any liability incurred by
Landlord as a result of Tenant's failure to comply with said governmental rules
and regulations.
(38) Any persons employed by Tenant to do any work in or about the
Premises shall, while in the Property and outside of the Premises, be subject to
and under the control and direction of the Landlord or Landlord's agent (but
shall not be deemed to be an agent or servant of said Landlord's agent or of the
Landlord), and Tenant shall be responsible for all acts of such persons.
Tenant hereby agrees to comply with
these rules and Regulations and
acknowledges acceptance of said terms
by execution hereof.
--------------------------------------
By: Earl Wiklund
Dated: _______________________________
39
<PAGE>
EXHIBIT F
PARKING AGREEMENT
So long as the lease dated July 14, 1997 between Zulu Properties Co., Ltd., a
California Corporation ("Landlord"), by and through Total Properties Management
Co., managing agent for the Property ("Landlord's Manager") and Harden & Company
Inc., a California corporation ("Tenant") covering space in the 3460 Wilshire
Blvd., Ste. 407, Los Angeles, CA 90010 property known as Central Plaza (the
"Property") remains in effect, and so long as the Rules and Regulations adopted
by Landlord are not violated, Tenant or persons designated by Tenant, shall have
the right to rent on a month-to-month basis parking spaces for the non-exclusive
parking of six (6) automobiles in the Parking Facilities associated with or
forming a part of the Property. Said parking spaces shall be offered to Tenant
at the building's prevailing parking rates subject to applicable city, state,
and federal taxes and assessments, if any, which amount may be changed from time
to time at Landlord's reasonable discretion. Tenant may validate visitor parking
by such methods as the Landlord or the parking operator may approve at the
validation rate from time to time generally applicable to visitor parking;
provided, however, the right to the parking spaces granted in this Parking
Agreement shall be subject to cancellation by Landlord, in whole or in part, at
any time upon not less than thirty (30) days prior written notice (except where
the Parking Rules and Regulations provide for a shorter notice should Tenant
violate the Parking Rules and Regulations).
A condition of any parking shall be compliance by the driver with Parking Rules
and Regulations, including any sticker or other identification system
established by the parking operator. The following Parking Rules and Regulations
are currently in effect. Landlord reserves the right to modify and/or adopt such
other reasonable and nondiscriminatory Rules and Regulations for the Parking
Facilities as it deems necessary for the operation of the Parking Facilities.
The parking operator may refuse to admit any person who violates the Parking
Rules and Regulations ("Rules") to park in the Parking Facilities, and any
violation of the Rules shall subject the car to removal from the Parking
Facilities. In either of said events the parking operator shall refund a prorata
portion of the current parking rate and the sticker or any other form of
identification shall be returned or caused to be returned by Tenant to the
parking operator.
Landlord expressly disclaims any responsibility for any theft of or vandalism or
damage to any personal property, including without limitation, any motor
vehicle, in, on, or about the Parking Facilities irrespective of cause,
circumstance, or parties involved. As a material inducement to Landlord to allow
Tenant the parking rights set forth herein, Tenant agrees to assume full
responsibility for the foregoing to the extent such relates to Tenant and/or
Tenant's employees, principals, agents, affiliates, and/or invitees, and Tenant
agrees to indemnify, defend and hold harmless Landlord for alt costs, liability
and damages relating to or arising from the foregoing.
The occurrence of the following shall constitute a material default and breach
of the Lease to which this Parking Agreement is attached as Exhibit "F" and
shall entitle Landlord to exercise such remedies as are therein provided, in
addition to any other right or remedy which Landlord may have at law or in
equity by reason of such default or breach:
(a) The failure of Tenant to make any payment required to be made by Tenant
under this Parking Agreement, where such failure continues until the earlier of
(i) five (5) days after the date on which such payment was due, or (ii) three
days after written notice thereof has been given by Landlord to Tenant; or
(b) The failure of Tenant to observe and perform any other provision of this
Parking Agreement to be observed or performed by Tenant, where such failure
continues for five (5) days after written notice thereof by Landlord to Tenant;
provided, however, that any such notice referred to in part (b) hereof shall be
in lieu of and not in addition to any notice required under Section 1161 of the
California Code of Civil procedure.
PARKING RULES AND REGULATIONS
1. Parking Facilities hours shall be as posted by management.
2. Cars must be parked entirely within the stall lines painted on the floor.
3. All directional signs and arrows must be observed.
4. The speed limit shall be 5 miles per hour.
5. Parking is prohibited in areas;
(a) not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) in reserved spaces, except for the person for whom such space is
reserved.
6. Parking stickers or any other device or form of identification supplied by
the parking operator shall remain the property of the parking operator. Such
parking identification device must be displayed in the front area of the
interior of the vehicle, or as requested, so that it may be readily observed by
the parking operator's attendants at all times while the vehicle is in the
Parking Facilities, and it may not be mutilated in any manner, and the serial
number of the parking identification device may not be obliterated. Devices are
not transferable and any device in the possession of an unauthorized holder will
be void.
7. The monthly rent for parking space is payable one (1) month in advance and
must be paid prior to the fifth day of each calendar month. Failure to do so
will automatically cancel parking privileges and a charge at the prevailing
daily parking rate plus a reinstatement fee of $25.00 will be due. No deductions
or allowances from the monthly rate will be made for time the customer does not
use Parking Facilities.
8. Parking managers or attendants are not authorized to make or allow any
exceptions to these Parking Rules and Regulations and these Parking Rules and
Regulations may be from time to time modified or amended.
9. Every driver is required to park his/her own car. If there are tandem spaces,
the first car shall pull all the way to the front of the space leaving room for
a second car to park behind the first car. The driver parking behind the first
car must leave his key in the ignition and the door of his car unlocked. Failure
to do so shall subject the driver of the second car to a $25 fine. Refusal of
the driver to leave his key to the second car when parking tandem shall be cause
for termination of the right to park in the Parking Facilities. The parking
operator, or his employees or agents, shall be authorized to move cars that are
parked in tandem should it be necessary for the operation of the Parking
Facilities. Tenant agrees that all responsibility for damage to cars or the
theft of or from cars is assumed by the driver, and further agrees that he/she
will hold Landlord harmless for any such damages or theft.
10. Loss or theft of parking identification stickers or devices from automobiles
must be reported to the parking operator immediately, and a lost or stolen
report must be filed by the customer at that time.
(a) Any parking identification stickers or devices reported lost or stolen,
found on any unauthorized car will be confiscated and the illegal holder will be
subject to prosecution.
(b) Lost or stolen stickers or devices found by the purchaser must be
reported to the parking operator immediately.
11. Spaces rented are for the express purpose of parking automobiles and for no
other purpose. Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited.
12. The parking operator reserves the right to refuse the sale of monthly
stickers to any tenant or person and/or his agents or representatives who
willfully refuse to comply with these Parking Rules and Regulations and all
unposted City, State or Federal ordinances, laws or agreements.
13. By signing this Parking Agreement, Tenant agrees to inform all persons to
whom tenant assigns parking space of the context of these Parking Rules and
Regulations.
TENANT:
Harden & Co, Inc., a California corporation
/s/ Earl Wiklund
- ---------------------------------------------------------
By: Earl Wiklund
Its: Chief Executive Officer
Dated: ____________7/24/97____________________
LANDLORD:
Zufu Properties Co., Ltd., a California Corporation ("Landlord" , by and through
Total Properties Management Co., managing agent for the Property ("Landlord's
Manager").
/s/ Donna L. Dalton
- ----------------------------------------------------------
By: Donna L. Dalton
Its: Senior Vice President
Dated: 7/24/97
40
<PAGE>
EXHIBIT "G"
GUARANTY OF LEASE
Intentionally omitted.
41
<PAGE>
EXHIBIT 10.25a
July 16, 1997
Mr. Earl Wiklund
Harden & Company, Inc.,
1800 Sutter Street, Suite 400
Concord, CA 94520
RE: ADDENDUM TO LEASE AGREEMENT BETWEEN
ZUFU PROPERTIES CO., LTD. AND
HARDEN & COMPANY, INC., A CALIFORNIA CORPORATION
DATED:JULY 14, 1997
BLDG. 3460, SUITE 407
Dear Mr. Wiklund:
Notwithstanding anything to the contrary contained within Paragraph 1 of the
Addendum to the Lease dated July 14, 1997 by and between Zufu Properties Co.,
Ltd., a California corporation ("Landlord") by and through Total Properties
Management Company., as managing agent for the Property ("Landlord's Manager")
and Harden & Company, Inc., a California corporation ("Tenant"), this letter
shall serve as an agreement by and between Landlord and Tenant that Landlord
shall deliver the Premises to Tenant in "as-is" condition, except that
Landlord, at Landlord's sole cost and expense, shall paint the Premises; install
carpet and carpet base throughout the Premises, with the exception of two (2)
rooms which will receive VCT flooring; seal up one (1) glass window between two
offices and install one (1) light switch using building standard materials and
building standard finishes as per the attached Exhibit A dated July 15, 1997.
IN WITNESS WHEREOF, the parties hereto have executed this letter agreement
as of the date and the year written below.
IF TENANT SHALL BE A CORPORATION, THE AUTHORIZED OFFICERS MUST SIGN ON
BEHALF OF THE CORPORATION AND INDICATE THE CAPACITY IN WHICH THEY ARE SIGNING.
Landlord: Tenant:
Zufu Properties Co., Ltd., Harden & Company, Inc., a California
a California corporation corporation
("Landlord"), by and through
Total Properties Management Co.,
managing agent for the Property
("Landlord's Manager").
/s/ Donna L. Dalton /s/ Earl Wiklund
- ------------------- ----------------
By: Donna L. Dalton By: Earl Wiklund
Its: Senior Vice President Its: Chief Executive Officer
Dated: 7-24-97 Dated: 7-24-97
-------- --------
<PAGE>
. INSTALL VCT FLOORING IN TWO (2) ROOMS, CARPET THROUGHOUT THE REMAINDER OF THE
PREMISES ALONG WITH BASE BOARD THROUGHOUT THE ENTIRE PREMISES
. PAINT THE PREMISES
. SEAL OFF ONE (1) WINDOW BETWEEN TWO ROOMS
. INSTALL ONE (1) LIGHT SWITCH
BLUE PRINT APPEARS HERE
SUITE 407 Rentable 1559
CENTRAL PLAZA
3460 WILSHIRE BLVD., L.A.
7-15-97
HARDEN & COMPANY, INC., A CALIFORNIA CORPORATION
EXHIBIT A
<PAGE>
EXHIBIT 10.26
OFFICE BUILDING LEASE
1. PARTIES. This Lease, dated, for reference purposes only July 30.1997 is made
by and between T.W. PATTERSON INVESTORS II/ The T.W. PATTERSON BUILDING (herein
called "Landlord") and Benefit Resources, inc. (herein called "Tenant").
2. PREMISES. Landlord does hereby lease to Tenant and Tenant hereby leases from
Landlord that certain office space (herein called "Premises"), said Premises
being agreed for the purpose of this Lease, to have an area of approximately
4330 square feet and being situated on the 8th floor of that certain building
known as T.W. PATTERSON BLDG., 2014 TULARE STREET, SUITE 818, FRESNO, CA 93721.
Said lease is subject to the terms, covenants and conditions herein set forth
and the Tenant covenants as a material part of the consideration for this Lease
to keep and perform each and all of said terms, covenants and conditions by it
to be kept and performed and that this Lease is made upon the condition of said
performance.
3. TERM. The term of this Lease shall be for Month to Month, commencing on the
first day of August, 1997, and ending with a 30 day written notice.
4. POSSESSION.
4a. If the Landlord, for any reason whatsoever, cannot deliver possession of
the said Premises to the Tenant at the commencement of the term hereof, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, nor shall the expiration date of the
above term be in any way extended, but in that event, all rent shall be abated
during the period between the commencement of said term and the time when the
Landlord delivers possession.
4b. In the event that Landlord shall permit Tenant to occupy the Premises
prior to the commencement date of the term, such occupancy shall be subject to
all the provisions of this Lease. Said early possession shall not advance the
termination date herein above provided.
5. RENT. Tenant agrees to pay to Landlord as rental, without prior notice or
demand, for the Premises the sum of: Twenty Five hundred ($ 2500.00 ) Dollars,
on or before the first day of the first full calendar month of the term hereof
and a like sum on or before the first day of each and every successive calendar
month thereafter during the term hereof, except that the first month's rent
shall be paid upon the execution hereof. Rent for any period during term hereof
which is for less than one (1) month shall he a prorated portion of the monthly
installment herein, based upon a thirty (30) day month. Said rental shall be
paid to Landlord, without deduction or offset in lawful money of the United
States of America, which shall be legal tender at the time of payment at the
Office of the Building, or to such other person or at such other place as
Landlord may from time designate in writing.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of Twenty Five
Hundred ($2500.00 ) Dollars. Said sum shall be held by Landlord as security for
the faithful performance by Tenant of all the terms, covenants, and conditions
of this Lease to be kept and performed by Tenant during the term hereof If
Tenant defaults with respect to any provision of this Lease, including, but not
limited to the provisions relating to the payment of rent, Landlord may (but
shall not be required to) use, apply, or retain all or any part of the security
deposit for the payment of any rent or any other sum in default, or for the
payment of any amount which landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason Tenant's default. If any portion of
said deposit is so used or applied, Tenant shall have within Ten (10) days after
written demand therefore deposit cash with Landlord in an amount to restore the
security deposit to its original amount and Tenant's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep this
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit. 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 (or, at Landlord's
option, to the last assignee of Tenant's interest hereunder) at the expiration
of this Lease term. In the event of termination of Landlord's interest in this
lease, Landlord shall transfer said deposit to Landlord's successor in interest.
7. OPERATING EXPENSE ADJUSTMENTS. For the purpose of this Article, the following
terms are defined as follows:
1
<PAGE>
Base Year: The calendar year in which the lease term commences (provided,
however, that the base year shall in no event be earlier than the first full
calendar year following the date of initial occupancy by the first occupant of
said Building). Base Year shall be 1997.
Comparison Year - Each calendar year of the term after the Base Year.
Direct Expenses - All direct costs of Operation and Maintenance, as determined
by standard accounting practices, and shall include the following costs by way
of illustration, but not be limited to: real property taxes and assessments;
rent taxes, gross receipt taxes, (whether assessed against the Landlord assessed
against the Tenant and collected by the Landlord, or both); water and sewer
charges; insurance premiums; utilities; janitorial services; labor; costs
incurred in the management of the Building, if any; air-conditioning and
heating; elevator maintenance, costs, and upkeep of all parking and common
areas. ("Direct Expenses" shall not include depreciation on the Building of
which the Premises are a part or equipment therein loan payments, executive
salaries or real estate brokers' commissions.)
If the Direct Expenses paid or incurred by the Landlord for the Comparison
Year on account of the operation or maintenance of the Building of which the
Premises are a part are in excess of the Direct Expenses paid or incurred for
the Base year, then the Tenant shall pay 0 % of the increase. The percentage is
that portion of the total rentable area of the Building occupied by the Tenant
hereunder. Landlord shall endeavor to give to Tenant on or before the first day
of March of each year following the respective Comparison Year a statement of
the increase in rent payable by Tenant hereunder, but failure by landlord to
give such statement by said date shall not constitute a waiver by Landlord or
its right to require an increase in rent. Upon receipt of the statement for the
first Comparison Year, Tenant shall pay in full the total amount of increase due
for the first Comparison Year, and in addition for the ten current year, the
amount of any such increase shall be used as an estimate for said current year
the amount shall be divided into twelve (12) equal monthly installments and
Tenant shall pay to Landlord, concurrently with the regular monthly rent payment
next due following the receipt of such statement, an amount equal to one (1)
monthly installment multiplied by the number of months from January in the
calendar year in which said statement is submitted to the month of such payment,
both months inclusive. Subsequent installments shall be payable concurrently
with the regular monthly rent payments for the balance of that calendar year and
shall continue until the next Comparison Year's statement is rendered. If the
next or any succeeding Comparison Year results in a greater increase in Direct
Expenses over the Base Year, less the total installments of estimated increases
paid in the previous calendar year for which comparison year is then being made
to the Base Year; and the estimated monthly installments to be paid for the next
year, following said Comparison Year, shall be adjusted to reflect such
increase. If in any Comparison Year the Tenant's share of Direct Expenses be
less than the preceding year, then upon receipt of Landlord's statement, any
overpayment made by Tenant on the monthly installment basis provided above shall
be credited towards the next monthly rent falling due and the estimated monthly
installments of Direct Expenses to be paid shall be adjusted to reflect such
lower Direct Expenses for the most recent Comparison Year.
Even though the term has expired and Tenant has vacated the Premises, when the
final determination is made of Tenant's share of Direct Expenses for the year in
which this Lease terminates, Tenant shall immediately pay any increase due over
the estimated expenses paid and conversely any overpayment made in the event
said expenses decrease shall be immediately rebated by landlord to Tenant.
Notwithstanding anything contained in this Article, the rental payable by
Tenant shall in no event be less than the rent specified in Article 5 herein
above.
8. USE. Tenant shall use the Premises for an art studio and shall not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord.
Tenant shall not do or permit anything to be done in or about the Premises nor
bring or keep anything therein which will in any way increase the existing rate
of or affect any fire or other insurance upon the Building or any of its
contents, or cause cancellation of any insurance policy covering said Building
or any part thereof or any of its contents. Tenant shall not do or permit
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 of inure
or annoy them or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises. Tenant shall not commit or suffer to
be committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW. Tenant shall not use the Premises or permit anything to
be done in or about the Premises which will in any way conflict with any law,
stature, ordinance or governmental rule or regulation now in force of which may
hereafter be enacted or promulgated. Tenant shall, at is sole cost and expense,
promptly comply
2
<PAGE>
with all laws, statues, ordinances and governmental rules, regulations or
requirements now in force of which may hereafter be in force, and with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relation to, or affecting the condition, use or
occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord be a part thereto or not, that Tenant has violated any law,
statue, ordinance or governmental rule, regulation or requirement, shall be
conclusive of that fact as between the Landlord and Tenant.
10. ALTERATIONS AND ADDITIONS. Tenant shall not make or suffer to be made any
alterations, additions or improvements to or of the Premises or any part thereof
without the written consent of Landlord first had and obtained and any
alterations, additions or improvements to or of said Premises, including, but
not limited to, wall covering, paneling and built-in cabinet work, but excepting
movable furniture and trade fixtures, shall on the expiration of the term become
a part of the realty and belong to the Landlord and shall be surrendered with
the Premises. In the event Landlord consents to the making of any alterations,
additions or improvements to the Premises by Tenant, the same shall be made by
Tenant at Tenant's sole cost and expense, and any contractor or person selected
by Tenant to make the same must first be approved of in writing by the Landlord.
Upon the expiration or sooner terminated of the term hereof, Tenant shall, upon
written demand by Landlord, given at least thirty (30) days prior to the end of
the term, at Tenant's sole cost and expense, forthwith and with all due
diligence remove any alterations, additions, or improvements made by Tenant,
designated by Landlord to be removed, and Tenant shall, forthwith and with all
due diligence at its sole cost and expense, repair any damages to the Premises
caused by such removal.
11. REPAIRS.
11a. By taking possession of the Premises, Tenant shall be deemed to have
accepted the Premises as being in good, sanitary order, condition and repair.
Tenant shall, at Tenant's sole cost and expense, keep the Premises and every
part thereof in good condition and repair, damage thereto from causes beyond the
reasonable control of Tenant and ordinary war and tear excepted. Tenant shall
upon the expiration or sooner termination of this Lease hereof surrender the
Premises to the Landlord in good condition, ordinary wear and tear and damage
from causes beyond the reasonable control of Tenant excepted. Except as
specifically provided in an addendum, if any, to this Lease, Landlord shall have
no obligation whatsoever to alter, remodel, improve, repair, decorate or paint
the Premises or any part thereof and the parties hereto affirm that Landlord has
made no representations to Tenant respecting the condition of the Premises or
the Building except as specifically herein set forth.
11b. Notwithstanding the provisions of Article 1la. herein above, Landlord
shall repair and maintain the structural portions of the Building, including the
basic plumbing, air conditioning, heating, and electrical systems, installed or
furnished by Landlord, unless such maintenance and repairs are caused in part or
in whole by the act, neglect, fault or omission of any duty by the Tenant, its
agents, servants, employees or invitees, in which case Tenant shall pay to
Landlord the reasonable cost of such maintenance and repairs. Landlord shall not
be liable for any failure to make by such repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need of such repairs of maintenance is given to Landlord by tenant.
Except as provided in Article 22 hereof, there shall be no abatement of rent and
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances and equipment therein. Tenant waives the right to make
repairs at Landlord's expense under any law, statute or ordinance now or
hereafter in effect.
12. LIENS. Tenant shall keep the Premises and the property in which the Premises
are situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. Landlord any require, at Landlord's
sole option, that Tenant shall provide to Landlord, at Tenant's sole cost and
expense, a lien and completion bond in an amount equal to one and one-half (1
1/2) times any and all estimated cost of any improvements, addition, or
alterations in the Premises, to insure Landlord against any liability for
mechanics' and material men's liens and to insure completion of the work.
13. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily or by
operation of law, assign, transfer, mortgage, pledge, hypothecate of encumber
this Lease or any interest therein, and shall not sublet the said Premises or
any part thereof, or any right or privilege appurtenant thereto, or suffer any
other person (the employees, agents, servants, and invitees of Tenant excepted)
to occupy or use the said Premise, or any portion thereof, without the written
consent of Landlord first had and obtained, which consent shall not be
unreasonably withheld, and a consent to one assignment, subletting, occupation
or use by any other person shall not be deemed to be a consent to any
3
<PAGE>
subsequent assignment, subletting, occupation or use by another person. Any
such assignment or subletting without such consent shall be void, and shall, at
the option of the Landlord, constitute a default under this Lease.
14. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord against and
from any and all claims arising from Tenant's use of the Premises for the
conduct of its business or from any activity, work, or other thing done,
permitted or suffered by the Tenant in or about the Building, and shall further
indemnify and hold harmless Landlord against and from any and all claims arising
from any breach or default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
negligence of the Tenant, or any officer, agent, employee, guest or invitee of
Tenant, and from all and against all cost, attorney's fees, expenses and
liabilities incurred in or about any such claim or any action or proceeding
brought against Landlord by reason of any such claim, Tenant upon notice from
Landlord shall defend the same at Tenant's expense by counsel reasonable
satisfactory by Landlord. Tenant as a material part of the consideration to
Landlord hereby assumes all risk of damage to property or injury to persons, in,
upon or about the Premise, from any cause other than Landlord's negligence, and
Tenant hereby waives all claims in respect thereof against Landlord.
Landlord or its agents shall not be liable for any damage to property
entrusted to employees of the Building, nor for the loss of damage to any
property by theft otherwise, nor for any injury to or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building of from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place resulting from dampness or any other cause
whatsoever, unless caused by or doe to the negligence of Landlord, its agents,
servants, or employees. Landlord or its agents shall not be liable for
interference with the light or other incorporeal detriments, loss of business by
Tenant, nor shall Landlord be liable for any latent defect in the Premises or in
the Building. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the Building or of defects therein or in the
fixtures or equipment.
15. SUBROGATION. As long as their respective insurers so permit, Landlord and
tenant hereby mutually waive their respective rights of recovery against each
other for any loss insured by fire, extended coverage and other property
insurance policies existing for the benefit of the respective parties. Each
party shall obtain any special endorsements, if required by the insurer to
evidence compliance with the aforementioned waiver.
16. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and keep in
force during the term of the Lease a policy of comprehensive public liability
insurance insuring Landlord and Tenant against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. The limit of said insurance shall not, however, limit the
liability of the Tenant hereunder. Tenant may carry said insurance by Tenant and
shall have a Landlord's protective liability endorsement attached thereto. If
Tenant shall fail to procure and maintain said insurance Landlord may, but shall
not be required to, procure and maintain same, but at the expense of Tenant.
Insurance required hereunder, shall be in companies rated A+ AAA or better in
"Best's Insurance Guide". Tenant shall deliver to Landlord prior to occupancy of
the Premises copies of policies of liability insurance required here or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Landlord. No policy shall be cancelable or
subject or reduction of coverage except after ten (10) days prior notice to
Landlord. Minimum liability coverage for each occurrence $1,000,000. T.W.
PATTERSON INVESTORS II shall be named as additional insured.
17. SERVICES AND UTILITIES. Provided that Tenant is not default hereunder,
Landlord agrees to furnish to the Premises during reasonable hours of generally
recognized business days, to be determined by Landlord at his sole discretion,
and subject to the rules and regulations of the Building of which the Premises
are a part, electricity for normal lighting and fractional horsepower office
machines, heat and air conditioning required in Landlord's judgment for the
comfortable use and occupation of the Premises, and janitorial service. Landlord
shall also maintain and keep lighted the common stairs, common entries and
toilet rooms in the Building of which the Premises are a part. Landlord shall
not be liable for, and Tenant shall not be entitled to, any reduction of rental
by reason of Landlord's failure to furnish any of the foregoing when such
failure is cause by accident, breakage, repairs, strikes, lockouts or other
labor disturbances of labor disputes of any character, or by any other cause,
similar or dissimilar, beyond the reasonable control of Landlord. Landlord shall
not be liable under any circumstances for a loss of or injury to property,
however occurring, through or in connection with or incidental to failure to
furnish any of the foregoing. Wherever heat generating machines or equipment are
used in the Premises which affect the temperature otherwise maintained by the
air conditioning system, Landlord reserves the right to install supplementary
air conditioning units in the Premises and the cost thereof, including the cost
of installation, and the cost of Operation and Maintenance thereof shall be paid
by Tenant to Landlord upon demand by Landlord.
4
<PAGE>
Tenant will not, without written consent of Landlord, use any apparatus or
device in the Premises, including, but without limitation thereto, electronic
data processing machines, punch card machines, and machines using in excess of
120 volts, which will in any way increase the amount of electricity usually
furnished or supplied for the use of the Premises as general office space; nor
connect with electric current except through existing electrical outlet in the
Premises, any apparatus or device, for the purpose of using electric current.
If Tenant shall require water or electric current in excess of that usually
furnished or supplied for the use of the Premises as general office space,
Tenant shall first procure the written consent of Landlord, which Landlord may
refuse, to the use thereof and Landlord may cause a water meter or electrical
current meter to be installed in the Premises, so as to measure the amount of
water and electric current consumed for any such use. The cost of any such
meters and of installation, maintenance and repair thereof shall be paid for by
the Tenant and Tenant agrees to pay to Landlord promptly upon demand therefor by
Landlord for all such water and electric expense incurred in keeping account of
the water and electric current so consumed. If a separate meter is not
installed, such excess cost for such water and electric current will be
established by an estimate made by a utility company or electrical engineer.
18. PROPERTY TAXES. Tenant shall pay, or cause to be paid before delinquency,
any and all taxes levied or assessed and which become payable during the term
hereof upon all Tenant's leasehold improvements, equipment, furniture, fixtures
and personal property located in the Premises; except that which has been paid
for by landlord, and is the standard of the Building. In the event any or all of
The Tenant's leasehold improvements, equipment, furniture, fixtures and
personal; property shall be assessed and taxed with the Building, Tenant shall
pay to Landlord its share of such taxes within ten (10) days after delivery to
Tenant by Landlord of a statement in writing setting forth the amount of such
taxes applicable to Tenant's property.
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
rules and regulations that Landlord shall from time to time promulgate. Landlord
reserves the right from time to time make all reasonable modifications to said
rules. The additions and modifications to those rules shall be binding upon
Tenant upon delivery of a copy of them to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance of any said rules by any other
tenants occupants.
20. HOLDING OVER. If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof, with the express written
consent of Landlord, such occupancy shall be tenancy from month to month at a
rental in the amount of the last monthly rental, plus all other charges payable
hereunder, and upon all the terms hereof applicable to a month to month tenancy.
21. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times have the
right to enter the Premises, inspect the same, supply any other service to be
provided by Landlord to Tenant hereunder, to submit said Premises to prospective
purchasers or tenants, to post notices of non-responsibility, and to alter,
improve or repair the Premises and any portion of the Building of which the
Premises are a part that Landlord may deem necessary or desirable, without
abatement of rent and may for that purpose erect scaffolding and other necessary
structures where reasonable required by the character of the work to be
performed, always providing that the entrance to the Premises shall not be
blocked thereby, and further providing that the business of the tenant shall not
be interfered with unreasonably. Tenant hereby waives any claim for damages or
for any injury or inconvenience to or interfere with Tenant's business, any loss
of occupancy of quiet enjoyment of the Premises, and any other loss occasioned
thereby. For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in, upon and about the
Premises, excluding Tenant's vaults, safes and files, and Landlord shall have
the right to use any and all means which Landlord may deem proper to open said
doors in an emergency, in order to obtain entry to the Premises without
liability to Tenant except for any failure to exercise due care for Tenant's
property. Any entry to the Premises obtained by Landlord by any of said means,
or otherwise shall not under any circumstances be construed or deemed to be
forcible or unlawful entry into, or a detainer of the Premises, or an eviction
of Tenant from the Premises or any portion thereof.
22. RECONSTRUCTION. In the event the Premises of the Building of which the
Premises are a part are damaged by fire or other perils covered by extended
coverage insurance, Landlord agrees to forthwith repair the same; and this Lease
shall remain in full force and effect, except that Tenant shall be entitled to a
proportionate reduction to be based upon the extent to which the making of such
repairs shall materially interfere with the business carried on by the Tenant in
the premises. If the damage is due to the fault of neglect of Tenant or its
employees, there shall be no abatement of rent.
In the event the premises or the Building of which the premises are a part
are damaged as a result of any cause other than perils covered by fire and
extended coverage
5
<PAGE>
insurance, then Landlord shall forthwith repair the same, provided the
extent of the destruction be less than ten (10%) percent of the then full
replacement cost of the premises or the Building of which the Premises are a
part. In the event the destruction of the Premises or the Building is to an
extent greater than ten (10%) percent of the full replacement cost, then
Landlord shall have the option: (1) to repair or restore such damage, this lease
continuing in full force and effect, but the rent to be proportionately reduced
as here in above in this Article provided; or (2) give notice to Tenant at any
time within sixty (60) days after such damage terminating this lease as of the
date specified in such notice, which date shall be no less than thirty (30) and
nor more than sixty (60) after the giving of such notice. In the event of giving
such notice, this Lease shall expire on the date so specified in such notice and
rent, reduces by a proportionate amount, based upon the extent, if any, to which
such damage materially interfered with the business carried on by the Tenant in
the premises, shall be paid up to date of said such termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the promises when the damage resulting from any casualty covered under
this Article occurs during the last twelve (12) months of the term of this Lease
or any extension thereof.
Landlord shall not be required to repair any injury or damage by fife or
other cause, or to make any repairs or replacements of any panels, decoration,
office fixtures, railings, floor covering, partitions, or any other property
installed on the premises by Tenant.
The Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the premises. Tenant's
personal property or any inconvenience or annoyance occasioned by such damage,
repair, reconstruction or restoration.
23. DEFAULT. The occurrence of any one or more of the following events shall
constitute a default and breach of the Least by Tenant.
23a. The vacating or abandonment of the Premises by tenant.
23b. The failure by Tenant to make any payment or rent or any other payment
required to be made by Tenant hereunder, as and when due, where such failure
shall continue for a period of three (3) days after written notice thereof by
Landlord to Tenant.
23c. The failure by tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by the
Tenant, other than described in Article 23b. above, where such failure shall
continue for a period of thirty (30) days after written notice thereof by
Landlord to tenant: provided, however, that if the nature of Tenant's default if
Tenant commences such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
23d. The making by Tenant of any general assignment of general arrangement
for the benefit or creditors; or the filing by or against Tenant of a petition
to have Tenant adjudged a bankrupt, or a petition or reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days); or
the appointment of a trustee or a receiver to take possession is not restored to
Tenant within thirty (30) days; or the attachment execution or other judicial
seizure of substantially all of Tenant's assets located at the premises of
Tenant's interest in this Lease, where such seizure in not discharged in thirty
(30) days.
24. REMEDIES IN DEFAULT. IN the event on any such material default or breach by
Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting landlord in the exercise of a right or remedy which
Landlord may have by reason of such default or breach:
24a. Terminate Tenant's right to possession of the premises by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the premises Landlord. In such event, Landlord shall be
entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default including, but not limited to, the cost of recovering
possession of the premises; expenses of reletting, including necessary
renovation and alteration of the premises, reasonable attorney's fees and real
estate commission actually reasonable attorney's fee and real estate commission
actually paid; by Landlord and applicable 0 the unexpired term of this Lease.
Unpaid installments of rent or other sums shall bear interest from the date due
at the rate of ten (10%) percent per annum. In the event Tenant shall have
abandoned the premises Landlord shall have the option of (a) taking possession
of the promises and recovering from Tenant the amount specified in this
paragraph, or (b) proceeding under the provisions of the following Article 24b.
24b. Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the premises. In
such event Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, Including the right to recover the rent as it becomes
due hereunder.
24c. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decision of the state in which the premises are
located.
6
<PAGE>
25. EMINENT DOMAIN. If more than twenty-five (25%) percent of the premises shall
be taken or appropriated by any public or quasi-public authority under there
power of eminent domain, either party hereto shall have the right, at its
option, to terminate this Lease, and Landlord shall be entitled to any and all
income, rent award or any interest therein whatsoever which may be paid or made
in connection with such public or quasi-public use or purpose, and Tenant shall
have no claim against Landlord for the value of any unexpired term of this
Lease. If either less than or more than twenty five (25%) percent of the
premises is taken, and neither party elects to terminate as herein proceeded,
the rental thereafter to be paid shall be equally reduced. If any appropriated,
landlord shall have the right as its option to terminate this Lease and shall be
entitled to the entire award as above provided.
26. OFFSET STATEMENT. Tenant shall at any time from time to time upon not less
than ten (10) days' prior written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing. (a) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Lease as so modified is in full
force and effect), and the date to which the rental and other charges are [are
in advance, of any, and (b) unsettled defaults on the part of the Landlord
hereunder, or specifying such defaults if any are claimed. Any such statement
may be relied upon by any prospective purchaser or encumbrance of all or any
portion of the real property of which the premises are a part.
27. PARKING. Tenant shall have the right to use in common with other tenants or
occupants of the Building the parking facilities of the Building, if any,
subject to the monthly rates rules and regulations and any other charges of
Landlord for such parking facilities which may be established or altered by
Landlord at any time or from time to time during the term hereof.
28. AUTHORITY OF PARTIES.
28a. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the board of
directors of said corporation or in accordance with the by-laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
28b. Limited partnerships. If the Landlord herein is a limited partnership,
it is understood and agreed that any claims by Tenant on Landlord shall be
limited to the assets of the officers, directors or shareholders of any
corporate partner, except the to the extent of their interest in said limited
partnership.
29. GENERAL PROVISIONS.
(i) Plats and Riders. Clauses, plats and riders, if any, signed by the
Landlord and the Tenant and endorsed on or affixed to this Lease area part
hereof.
(ii) Waiver. The waiver by Landlord of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition on any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of the
Tenant to pay the particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of the acceptance of such rent.
(iii) Notices. All notices and demands which may or are to be requires or
permitted to be given by either party to the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent by
United States Mail, postage prepaid, addressed to the Tenant at he premises, or
to such other place as Tenant may from time to time designate in a notice to the
Landlord. All notices and demands by the Tenant to the Landlord shall be sent by
United States Mail, postage prepaid, addressed to the Landlord at the office of
the Building or to such other person or place as the Landlord may from time to
time designate in a notice to the Tenant.
(iv) Joint obligation. If there be more than one Tenant the obligations
hereunder imposed upon Tenants shall be joint and several.
(v) Marginal Headings. The marginal headings and Article titles to the
Articles of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
(vi) Time. Time is of the essence of the Lease and each and all of its
provisions in which performance is a factor.
(vii) Successors and Assigns. The covenants and conditions herein contained,
subject to the provisions as to assignment, apply to an bind the heirs,
successors executors, administrators and assigns of the parties hereto.
(viii) Recordation. Neither Landlord nor Tenant shall record this Lease nor
a short form memorandum hereof without the prior written consent of the other
party.
(ix) Quiet possession. Upon Tenant paying the rent reserved hereunder and
observing and performing all of the covenants, conditions and provisions on
Tenants part
7
<PAGE>
to be observed and performed hereunder, Tenant shall have requires
possession of the premises for the entire time hereof subject to all the
provisions of this Lease.
(x) Late charges. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs
nor contemplated by this Lease. The exact amount of which will be extremely
difficult to ascertain, such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed upon Landlord by
terms of any mortgage or trust deed covering the premises. Accordingly, if any
installment of rent or of a sum due from Tenant shall not be received by
Landlord or Landlord's designee within ten(10) days after written notice that
said amount is past due, then Tenant shall pay to Landlord a late charge equal
to ten (10%) percent of such overdue amount. The parties hereby agree that such
late charges represent a fair and reasonable estimate of the cost that Landlord
will incur by reason of the late payment by Tenant. Acceptance of such late
charges by the Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
(xi) Prior Agreement. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreements or understanding pertaining to any such matters shall be
effective for any purpose. No provision of this Lease may be amended or added to
except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties here.
(xii) Inability to perform. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the 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 strike, labor troubles, acts of God,
or any other cause beyond the reasonable control of the Landlord.
(xiii) Attorneys' fees. In the event of any action or Lease the prevailing
party shall be entitled to recover all costs or proceeding in such amount as the
court may adjudge reasonable as attorneys' fees.
(xiv) Sale of Premises by Landlord. In the event of any sale of the
Building, Landlord shall be and is hereby entirely freed and relieved of all
liability under and all of its covenants and obligations contained in or derived
from this Lease arising consummation of such sale, and the purchaser are such
sale or any subsequent of the premises shall be deemed, without any interest or
between the parties and any such purchaser, to have assumed and agreed to carry
out any and all of the covenants and obligations of the Landlord under this
Lease.
(xv) Subordination, Attainment. Upon request of the Landlord, Tenant will in
writing subordinate its rights hereunto the lien of any first mortgage, or first
deed of trust to any bank insurance company or other lending institution, now or
hereafter in force against the land and building of which the premises are a
part, and upon any buildings hereafter placed upon the land of which the
premises are a part, and to all advances made or hereafter to be made upon the
security thereof.
In the event any proceeding brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage of deed of trust made by the
Landlord covering the premises, the Tenant shall atone to the purchaser upon any
such foreclosure or sale and recognize such purchaser as the Landlord under this
Lease.
The provision of this Article to the contrary not with standing, and so long
as Tenant is not in default hereunder, this Lease shall remain in full force and
effect for the full term here.
(xvi) Name. Tenant shall not use the name of the building or of the
development in which the building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the premises.
(xvii) Separability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and such other provisions shall remain in full force and
effect.
(xviii) Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law to in equity.
(xix) Choice of Law. This Lease shall be governed by the laws of the State
in which the premises are located.
(xx) Signs and Auctions. Tenant shall not place any sign upon the premises
or Building or conduct any auction thereon without Landlord's prior written
consent.
The parties hereto have executed this at the place and on the dates
specified immediately adjacent to their respective signatures.
If this Lease has been filled in, it has been prepared for submission to
your attorney for his approval. No representation or recommendations is made by
the receiver or his agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Lease or the transactions relation thereto.
8
<PAGE>
TENANT IS RESPONSIBLE FOR ALL INTERIOR MAINTENANCE.
T.W. Patterson Investors II
By /s/ Carol Roush
-------------------------
Agent for Landlord
2014 Tulare Street, Suite 705
Fresno CA. 93721
By /s/ Bob Rath
-------------------------
Bob Rath, agent for,
Benefit Resources, Inc.
15721 N. Greenway-Hayden Lp.
Scottsdale, AZ 85260-1754
9
<PAGE>
RULES AND REGULATIONS FOR STANDARD OFFICE LEASE
DATED: 8-6-97 LESSEE: BENEFIT RESOURCES, INC.
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common Areas,
including walkways, stairways, and driveways.
2. Lessor reserves the right to refuse access to any persons Lessor in good
faith judges to be a threat to the safety, reputation, or property of the Office
Building Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or interfere
with other lessees or persons having business within the Office Building
Project.
4. Lessee shall not keep animals or birds within the Office Building Project.
and shall not bring bicycles, motorcycles, or other vehicles not designated as
authorized for same.
5. Lessee shall not make, suffer, or permit litter except in appropriate
receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional lock and bolts.
7. Lessee shall he responsible for the inappropriate use of any toilet rooms,
plumbing, or other utilities. No foreign substances of any kind are to be
inserted therein.
8. Lessee shall not deface the walls, partitions, or other surfaces or the
premises or Office Building Project
9. Lessee shall not suffer or permit any thing in or around the Premises or
Building that causes excessive vibration or floor loading in any part of the
Office Building Project.
10. Furniture, significant freight and equipment shall be moved into or out of
the building only with the Lessor's consent, and subject to such reasonable
limitations, techniques, and timing, as may be designated by Lessor. Lessee
shall be responsible for any damage to the Office Building Project arising from
any such activity.
11. Lessee shall not employ any service or contractor for services or work to be
performed in the Building, except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on Saturdays,
Sundays, and legal holidays, and on other days between the hours 6 P.M. and 7
A.M. or the following day. If lessee uses the Premises during such periods,
Lessee shall be responsible for securely locking the doors it may have opened
for entry.
13. Lessee shall return all keys at the termination of its tenancy and shall be
responsible for the cost of replacing any keys that are lost.
14. No window coverings, shades, or awnings shall be installed or used by
Lessee.
15. No Lessee, employee, or invitee shall go upon the roof of the Building.
16. Lessee shall not suffer, or permit smoking or carrying of lighted cigars or
cigarettes in areas reasonably designated by Lessor or by applicable
governmental agencies as non-smoking areas.
17. Lessee shall not use any method of heating or air conditioning other than
provided by Lessor.
18. Lessee shall not install, maintain or operate any vending machines upon the
Premises without Lessor's written consent.
19. The Premises shall not be used for lodging or manufacturing.
20. Lessee shall comply with all safety, fire protection and evacuation
regulations established by Lessor or any applicable governmental agency.
21. Lessor reserves the right to waive any one of these rules or regulations,
and/or as to any particular Lessee, and any such waiver shall not constitute a
waiver of any rule or regulation or any subsequent application thereof to such
Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to keep its
Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Office Building Project and it occupants. Lessee
agrees to abide by these and such rules and regulations.
PARKING RULES
1. Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Lessor for such activities.
2. Lessor receives the right to refuse the sale of monthly identification
devices to any person or entity that willfully refuses to comply with the
applicable rules, regulations, laws and/or agreements.
3. Users of the parking area will obey all posted signs and park only in the
areas designated for vehicle parking.
4. Validation, if established, will be permissible only by such method or
methods as Lessor and/or its licensee may establish at rates generally
applicable to visitor parking.
5. The maintenance, washing, waxing, or cleaning of vehicles in the parking
structure or Common Areas is prohibited.
Signature /s/ Robert H. Rath
------------------
10
<PAGE>
T.W. PATTERSON INVESTORS II
2014 TULARE STREET SUITE 705
FRESNO, CA 93721
LEASE ADDENDUM
1. Asbestos- The Lessee is aware the building was constructed with
materials containing asbestos. To prevent exposure to asbestos, Lessee
should not undertake any tenant improvements (such as removing ceiling
tiles) without Lessor's prior written permission.
2. Insurance- The Lessee agrees to carry a policy of insurance with the
Lessor as an additional insured. Please provide certificate prior to
8/1/97
3. Parking-Parking spaces will not be guaranteed in the underground
--------
garage, however, underground parking spaces may be provided as
available on a month-to-month basis. The fee for the parking space is
an additional charge on $55 per month. Tenant may have use of the
underground garage for after hour use as agreed upon by Golden Eagle
PARKING. GOLDEN EAGLE IS LOCATED ON 4Th FLOOR, SUITE 400. Parking is
also available in the nearby city parking structure, Lot 4, on a
month-to-month basis from AMPCO SYSTEM call 442-1670.
4. Late Charge - Lessor shall have the right to add to the amount of any
payment required to be made by Lessee hereunder and which is not paid
within 10 days (TEN days of the date the rental payment is due an
amount equal to ten percent (10%) of the delinquency for each month or
a portion thereof that the delinquency remains outstanding. The late
charge shall be due upon demand by Lessor within l0(TEN) days of the
rent due date and failure by Lessee to pay above installment.
5. Option to extend - Provided that Tenant shall not then be in default
hereunder, Tenant shall have the option to negotiate by per market
indicators to extend the term of this Lease at a minimum of 5% annual
rent adjustment.
Signed /s/ Bob H. Rath Dated 8-7-97
---------------------- -------------
Bob Rath, Agent for Benefit Resources, Inc.
Signed /s/ Carol Roush Dated 8-7-97
---------------------- -------------
Carol Roush, Agent for T.W. Patterson Investors II
11
<PAGE>
IMPERIAL BANK
- -------------
1331 North California Boulevard, Suite 320
Walnut Creek, California 94596
Date: September 30.1997
-----------------
Borrower: Anchor Pacific Underwriters. Inc.
---------------------------------
Subject: CREDIT TERMS AND CONDITIONS ("AGREEMENT")
-----------------------------------------
Gentlemen:
To induce you to make loans to the undersigned ("Herein called "Borrower"), and
in consideration of any loan or loans you, in your sole discretion, may make to
Borrower, Borrower warrants and agrees as follows:
A. Borrower represents and warrants that:
- ----------------------------------------
1. Existence of Rights. Company is a corporation duly organized and existing and
-------------------
in good standing under the laws of the State of Delaware, without limit as to
the duration of its existence, and is authorized and in good standing to do
business in the State of Delaware; Company has powers and adequate authority,
rights and franchises to own its property and to carry on its business as now
conducted, and is duly qualified and in good standing in each State in which the
character of the properties owned by it therein or the conduct of its business
makes such qualification necessary; and Borrower has the power and adequate
authority to make and carry out this Agreement. Borrower has no investment in
any other business entity, except: Harden & Company Insurance Services, Inc.,
Putnam Knudsen & Weiking, Inc. and Benefit Resources, Inc.
2. Agreement Authorized. The execution, delivery and performance of this
--------------------
Agreement are duly authorized and do not require the consent or approval of any
governmental body or other regulatory authority; are not in contravention of or
in conflict with any law or regulation or any term or provision of Borrower's
articles of incorporation, by-laws, or Articles of Association, as the case may
be, and this Agreement is the valid, binding and legally enforceable obligation
of Borrower in accordance with its terms.
3. No Conflict. The execution, delivery and performance of this Agreement are
-----------
not in contravention of or in conflict with any agreement, indenture or
undertaking to which Borrower is a party or by which it or any of its property
may be bound or affected, and do not cause any lien, charge or other encumbrance
to be created or imposed upon any such property by reason thereof.
1
<PAGE>
4. Litigation. There is no litigation or other proceeding pending or threatened
----------
against or affecting Borrower, and Borrower is not in default with respect to
any order, writ, injunction, decree or demand of any court or other governmental
or regulatory authority.
5. Financial Condition. The balance sheet of Borrower as of August 31,1997 and
-------------------
the related profit and loss statement for the eight months ended on that date,
copy of which has heretofore been delivered to you by Borrower, and all other
statements and data submitted in writing by Borrower to you in connection with
this request for credit are true and correct, and said balance sheet and profit
and loss statement truly present the financial condition of Borrower as of the
date thereof and the results of the operations of Borrower for the period
covered thereby, and have been prepared in accordance with generally accepted
accounting principles on a basis consistently maintained. Since such date there
have been no materially adverse changes in the financial condition or business
of Borrower. Borrower has no knowledge of any liabilities, contingent or
otherwise, at such date not reflected in said balance sheet, and Borrower has
not entered into any special commitments or substantial contracts which are not
reflected in said balance sheet, other than in the ordinary and normal course of
its business, which may have a materially adverse effect upon its financial
condition, operations or business as now conducted.
6. Title to Assets. Borrower has good title to its assets, and the same are not
---------------
subject to any liens or encumbrances other than those permitted by Section C.3
hereof.
7. Tax Status. Borrower has no liability for any delinquent state, local or
----------
federal taxes, taxes, if Borrower has contracted with any government agency.
Borrower has no liability for renegotiation of profits.
8. Trademarks. Patents. Borrower, as of the date hereof; possesses all
-------------------
necessary trademarks, trade names, copyrights, patents, patent rights, and
licenses to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license rights
of others.
9. Regulation U. The proceeds of this loan shall not be used to purchase or
------------
carry margin stock (as defined within Regulation U of the Board of Governors of
the Federal Reserve system).
B. Borrower agrees that so long as it is indebted to you, it will, unless you
- ------------------------------------------------------------------------------
shall otherwise consent in writing:
- ----------------------------------
1. Rights and Facilities. Maintain and preserve all rights, franchises and
---------------------
other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and maintain and
preserve its existence.
2. Insurance. Maintain public liability, property damage and workers'
---------
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses.
2
<PAGE>
3. Taxes and Other Liabilities. Pay and discharge, before the same become
---------------------------
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other liabilities at any time existing, except to the extent and so long as:
(a) The same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any materially adverse
effect upon its financial condition or the loss of any right of
redemption from any sale thereunder; and
(b) It shall have set aside on its books reserves (segregated to the
extent required by generally accepted accounting practice) deemed by
it adequate with respect thereto.
4. Net Worth. Maintain a net worth (meaning the excess of all assets over its
---------
liabilities) of not less than $650,000.
5. Records and Reports. Maintain a standard and modern system of accounting in
-------------------
accordance with generally accepted accounting principles on a basis consistently
maintained; permit your representatives to have access to, and to examine its
properties, books and records at all reasonable times; and furnish you:
(a) As soon as available, and in any event within 20 days after the close of
each month of each fiscal year of Borrower, commencing with the month next
ending, a balance sheet, profit and loss statement and reconciliation of
Borrower's capital accounts as of the close of such period and covering
operations for the portion of Borrower's fiscal year ending on the last day of
such period, all in reasonable detail and stating in comparative form the
figures for the corresponding date and period in the previous fiscal year,
prepared in accordance with generally accepted accounting principles on a basis
consistently maintained by Borrower and certified by an appropriate officer of
Borrower, subject, however, to year-end audit adjustments;
(b) As soon as available, and in any event within ninety (90) days after the
close of each fiscal year of Borrower, a report of audit of Company as of the
close of and for such fiscal year, all in reasonable detail and stating in
comparative form the figures as of the close of and for the previous fiscal
year, with the unqualified opinion of accountants satisfactory to you;
(c) Within ninety (90)days after the end of each fiscal year of Borrower, a
certificate of chief financial officer or partner of Borrower, stating that
Borrower has performed and observed each and every covenant contained in this
Letter of Inducement to be performed by it and that no event has occurred and no
condition then exists which constitutes an event of default hereunder or would
constitute such an event of default upon the lapse of time or upon the giving of
notice and the lapse of time specified herein, or, if any such event has
occurred or any such condition exists, specifying the nature thereof;
(d) Promptly after the receipt thereof by Borrower, copies of any detailed audit
reports submitted to Borrower by independent accountants in connection with each
annual or interim audit of the accounts of Borrower made by such accountants;
3
<PAGE>
(e) Promptly after the receipt thereof Borrower shall provide copies of all
reports which Borrower is required to file with the Securities and Exchange
Commission or any governmental authority at any time substituted therefore and
(f) Such other information relating to the affairs of Borrower as you
reasonably may request from time to time.
6. Notice of Default. Promptly notify the Bank in writing of the occurrence of
-----------------
any event of default hereunder or any event which upon notice and lapse of time
would be an event of default.
C. Borrower agrees that so long as it is indebted to you. it will not. without
- -------------------------------------------------------------------------------
your written consent.
- ---------------------
1. Type of Business: Management: Executives' Compensation. Make any substantial
------------------------------------------------------
change in the character of its business; or make any change in its executive
management; or allow the salary, bonuses or other compensation of any of its
executives, to exceed $500,000 per annum in the aggregate.
2. Outside Indebtedness. Create, incur, assume or permit to exist any
--------------------
indebtedness for borrowed moneys other than loans from you, except obligations
now existing as shown in financial statement dated August 31, 1997, excluding
those being refinanced by your Bank; or sell or transfer, either with or without
recourse, any accounts or notes receivable or any moneys due to become due.
3. Liens and Encumbrances. Create, incur, or assume any mortgage, pledge,
----------------------
encumbrance, lien or charge of any kind (including the charge upon property at
any time purchased or acquired under conditional sale or other title retention
agreement) upon any asset now owned or hereafter acquired by it, other than
liens for taxes not delinquent and liens in your favor.
4. Loans, Investments, Secondary Liabilities. Make any loans or advances to any
-----------------------------------------
person or other entity other than in the ordinary and normal course of its
business as now conducted or make any investment in the securities of any person
or other entity other than the United States Government; or guarantee or
otherwise become liable upon the obligation of any person or other entity,
except by endorsement of negotiable instruments for deposit or collection in the
ordinary and normal course of its business.
5. Acquisitions or Sale of Business; Merger or Consolidation. Purchase or
----------------------- ---------------------------------
otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings therefor;
or sell any assets except in the ordinary and normal course of its business as
now conducted; or sell, lease, assign, or transfer any substantial part of its
business or fixed assets, or any property or other assets necessary for the
continuance of its business as now conducted, including without limitation the
selling of any property or other asset accompanied by the leasing back of the
same.
4
<PAGE>
6. Dividends, Stock Payments. Declare or pay any dividend (other than dividends
-------------------------
payable in common stock of Borrower) or make any other distribution on any of
its capital stock now outstanding or hereafter issued or purchase, redeem or
retire any of such stock.
D. The occurrence of any one of the following events of default shall, at your
---------------------------------------------------------------------------
option, terminate your commitment to lend and make all sums of principal and
- ----------------------------------------------------------------------------
interest then remaining unpaid on all Borrower's indebtedness to you immediately
- --------------------------------------------------------------------------------
due and payable, all without demand, presentment or notice, all of which are
- ----------------------------------------------------------------------------
hereby expressly waived:
- -----------------------
1. Failure to Pay Note. Failure to pay any installment of principal or of
-------------------
interest on any indebtedness of Borrower to you within ten (10) days of the date
when due.
2. Breach of Covenant. Failure of Borrower to perform any other term or
------------------
condition of this Agreement binding upon Borrower, which failure continues and
is not cured within thirty (30) days after written notice from Bank to Borrower.
3. Breach of Warranty. Any of Borrower's representations or warranties made
------------------
herein or any statement or certificate at any time given in writing pursuant
hereto or in connection herewith shall be false or misleading in any material
respect.
4. Insolvency; Receiver or Trustee. Borrower shall become insolvent; or admit
-------------------------------
its inability to pay its debts as they mature; or make an assignment for the
benefit of creditors; or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or business.
5. Judgments, Attachments. Any money judgment, writ or warrant of attachment,
----------------------
or similar process shall be entered or filed against Borrower or any of its
assets, which judgment, writ or warrant of attachment or similar process will
have a materially adverse effect on the financial condition, operations and
business of Borrower and which remains unvacated, unbonded, or unstayed for a
period of thirty (30) days or in any event later than five (5) days prior to the
day of any proposed sale or execution under such judgment, writ, warrant of
attachment or similar process.
6. Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation
----------
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against Borrower and, if
instituted against it, shall be consented to.
7. Capital Expenditures. Make or incur obligations for capital expenditures in
--------------------
excess of $200,000 in the period from the date hereof to December 31, 1997 or in
excess of $500,000 in any one fiscal year there after.
8. Lease Liability. Make or incur liability for rent under leases of real
---------------
property in excess of $900,000 and personal property in excess of $400,000 in
any one fiscal year.
5
<PAGE>
E. Miscellaneous Provisions.
------------------------
1. Failure or Indulgence Not Waiver. No failure or delay on the part of your
--------------------------------
Bank, or any holder of Notes issued hereunder, in the exercise of any power,
fight or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this Agreement of any note issued in
connection with a loan that your Bank may make hereunder, are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
See Addendum dated September 30, 1997 attached hereto and incorporated herein by
this reference for additional terms. In the event of a conflict between this
Agreement and the Addendum, the terms in the Addendum will prevail.
Anchor Pacific Underwriters Inc.
- --------------------------------
By: /s/ James R. Dunathan
_________________________________
James R. Dunathan
President & CEO
By: /s/ Earl Wikland
_________________________________
Earl Wikland
SVP, SEC
6
<PAGE>
Anchor Pacific Underwriters, Inc.
Credit Terms and Conditions Dated September 30, 1997
Addendum
Repayment program to be based on sixty (60) equal monthly principal payments of
$26,666.67 Not withstanding the foregoing, 75% of the company's monthly EBITDA
shall be applied to principal to the extent such percentage of monthly EBITDA is
required to make the scheduled payment of principal as described above. To the
extent that 75% of monthly EBITDA falls short of the required principal payment,
the difference shall be added to the final payment. To the extent that 75% of
the monthly EBITDA exceeds the required principal payment the excess shall be
applied to the final payment to the extent that it has been increased as a
result of short falls in prior monthly principal payments.
Lender to receive a warrant for 95,000 shares of Anchor Pacific Underwriters,
Inc. Common Stock excersizeable at $1.75 per share.
All corporate balances of Borrower and those under its control to be maintained
with Bank.
Perfected first priority security interest in and UCC-1 filings on all Borrower
and subsidiary assets, and direct assignment of 100% of the capital stock of all
of Borrower's subsidiaries.
Loan to be guaranteed by all of Borrower's subsidiaries.
On an annual basis, earnings before Interest, Taxes, Depreciation and
Amortization shall cover principal and interest of the current portions of long
term debt and capitalized lease obligations a minimum of 1.5 Xs.
Borrower to provide unqualified audited financial statements and 10K report
within 90 days of the close of its fiscal year end.
On a monthly basis, Borrower, must achieve at least 80% of their budget goals
for earnings before depreciation and amortization based on the company's
September 1997 forecast.
Anchor Pacific Underwriters, Inc.
By: /s/ James R. Dunathan Date: 10/15/97 /s/ Earl Wikland Date: 10/17/97
_____________________ -------- ---------------- --------
James R. Dunathan Earl Wikland
President & CEO Chief Financial Officer
7
<PAGE>
IMPERIAL BANK
MEMBER FDIC
NOTE
$ 1,600,000.00 WALNUT CREEK ,California, SEPTEMBER 30,1997
On OCTOBER 5, 2002 , and as hereinafter provided, for value
received, the undersigned promises to pay to IMPERIAL BANK ("Bank")a California
banking corporation, or order, at its
EAST BAY REGIONAL office,the principal sum of
$1,600,000.00 or such sums up to the
maximum if so stated, as the Bank may now or hereafter advance to or for the
benefit of the undersigned in accordance with the terms hereof, together with
interest from date
of disbursement or N/A , whichever is later, on the unpaid
principal balance [_] at the rate of %
per year [X] at the rate of 2.500 % per year in excess of the rate of
interest which Bank has announced as its prime lending rate (the "Prime Rate"},
which shall vary concurrently with any change in such Prime Rate, or
$250.00, whichever Is greater. Interest shall be computed at the above rate on
the basis of the actual number of days during which the principal balance is
outstanding, divided by 360, which shall, for interest computation purposes,
be considered one year.
INTEREST SHALL be payable [X] monthly [_] quarterly [_] included with
principal [X] in addition to principal [_]
beginning NOVEMBER 5, 1997 , and if not so paid shall become
a part of the principal. All payments shall be applied first to any late
charges owing, then to interest and the remainder, if any, to principal.
[X] (If checked). Principal shall be payable in installments of $26,666.67
or more, each installment on the 5th day of each month , beginning November
5, 1997
Advances not to exceed any unpaid balance owing at any one time equal to the
maximum amount specified above, may be made at the option of Bank.
Any partial prepayment shall be applied to the installments, if any, in
inverse order of maturity. Should default be made in the payment of principal or
interest when due, or in the performance or observance, when due, of any item,
covenant or condition of any deed of trust, security agreement or other
agreement (including amendments or extensions thereof) securing or pertaining to
this note, at the option of the holder hereof and without notice or demand. the
entire balance of principal and accrued interest then remaining unpaid shall (a)
become immediately due and payable, and (b) thereafter bear interest, until paid
in full, at the increased rate of 5% per year in excess of the rate provided for
above, as it may vary from time to time.
Defaults shall include, but not be limited to, the failure of the
maker(s) to pay principal or interest when due: the filing as to each person
obligated hereon, whether as maker, co-maker, endorser or guarantor
(individually or collectively referred to as the "Obligor") of a voluntary or
involuntary petition under the provisions of the Federal Bankruptcy Act: the
issuance of any attachment or execution against any asset of any Obligor the
death of any Obligor: or any deterioration of the financial condition of any
Obligor which results in the holder hereof considering itself, in good faith,
insecure.
If any installment payment, interest payment, principal payment or
principal balance payment due hereunder is delinquent ten or more days, Obligor
agrees to pay Bank a late charge in the amount of 5% of the payment so due and
unpaid, in addition to the payment: but nothing in this paragraph is to be
construed as any obligation on the part of the holder of this note to accept
payment of any payment past due or less than the total unpaid principal balance
after maturity.
If this note is not paid when due, each Obligor promises to pay all
costs and expenses of collection and reasonable attorneys fees incurred by the
holder hereof on account of such collection, plus interest at the rate
applicable to principal, whether or not suit is filed hereon. Each Obligor shall
be jointly and severally liable hereon and consents to renewals, replacements
and extensions of time for payment hereof, before, at, or after maturity:
consents to the acceptance, release or substitution of security for this note:
and waives demand and protest and the right to assert any statute of
limitations. Any married person who signs this note agrees that recourse may be
had against separate property for any obligations hereunder. The indebtedness
evidenced hereby shall be payable in lawful money of the United States. In any
action brought under or arising out of this note, each Obligor, including
successor(s) or assign(s) hereby consents to the application of California law,
to the jurisdiction of any competent count within the State of California, and
to service of process by any means authorized by California law.
No single or partial exercise of any power hereunder, or under any deed
of trust, security agreement or other agreement in connection herewith shall
preclude other or further exercises thereof or the exercise of any other such
power. The holder hereof shall at all times have the right to proceed against
any portion of the security for this note in such order and in such manner as
such holder may consider appropriate, without waiving any rights with respect to
any of the security. Any delay or omission on the pan of the holder hereof in
exercising any right hereunder, or under any deed of trust, security agreement
or other agreement, shall not operate as a waiver of such right, or of any other
right, under this note or any deed of trust, security agreement or other
agreement in connection herewith.
SUBJECT TO THE CONDITIONS, RESTRICTIONS AND LIMITATIONS CONTAINED IN THE CREDIT
TERMS AND CONDITIONS DATED SEPTEMBER 30, 1997
ANCHOR PACIFIC UNDERWRITERS, INC.
__________________________________ _________________________________
By: /s/ James R. Dunathan
__________________________________ _________________________________
__________________________________ _________________________________
8
<PAGE>
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
Corporation: ANCHOR PACIFIC UNDERWRITERS, INC, A DELAWARE CORPORATION
Number of Shares: 95,000
Class of Stock: COMMON STOCK
Initial Exercise Price: $1.75 PER SHARE
Issue Date: OCTOBER 1, 1997
Expiration Date: SEPTEMBER 30, 2002 (SUBJECT TO ARTICLE 4.1)
* THIS WARRANT CERTIFIES THAT, in consideration of the payment of $1.00 and
for other good and valuable consideration, IMPERIAL BANK or registered assignee
("Holder") is entitled to purchase the number of fully paid and nonassessable
shares of the class of securities (the "Shares") of the corporation (the
"Company") at the initial exercise price per Share (the "Warrant Price") all as
set forth above and as adjusted pursuant to Article 2 of this Warrant, subject
to the provisions and upon the terms and conditions set forth of this Warrant.
ARTICLE 1 EXERCISE
--------
1.1 Method of Exercise. Holder may exercise this Warrant by delivering
this Warrant and a duly executed Notice of Exercise in substantially the form
attached as Appendix 1 to the principal office of the Company. Unless Holder is
exercising the conversion fight set forth in Section 1.2, Holder shall also
deliver to the Company a check for the aggregate Warrant Price for the Shares
being purchased.
1.2 Conversion Right. In lieu of exercising this Warrant as specified
----------------
in Section 1.1, Holder may from time to time convert this Warrant, in whole or
in part, into a number of Shares determined by dividing (a) the aggregate fair
market value of the Shares or other securities otherwise issuable upon exercise
of this Warrant minus the aggregate Warrant Price of such Shares by (b) the fair
market value of one Share. The fair market value of the Shares shall be
determined pursuant to Section 1.5.
1.3 deleted
-------
1.4 deleted
-------
1.5 Fair Market Value. For Purposes of determining conversion rights
-----------------
under Section 1.2, if the Shares are traded regularly in a public market, the
fair market value of the Shares shall be the closing price of the Shares (or the
closing price of the Company's stock into which the Shares are convertible)
reported for the business day immediately before Holder delivers its Notice of
Exercise to the Company.
9
<PAGE>
If the Shares are not regularly traded in a public market, the Board of
Directors of the Company shall determine fair market value in its reasonable
good faith judgment. The foregoing notwithstanding, if Holder advises the Board
of Directors in writing that Holder disagrees with such determination, then
the Company and Holder shall promptly agree upon a reputable investment banking
firm to undertake such valuation. If the valuation of such investment banking
firm is greater than that determined by the Board of Directors, then all fees
and expenses of such investment banking firm shall be paid by the Company. In
all other circumstances, such fees and expenses shall be paid by Holder.
1.6 Delivery of Certificate and New Warrant. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.7 Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, or surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor.
1.8 Repurchase on Sale, Merger or Consolidation of the Company.
----------------------------------------------------------
1.8.1. "Acquisition". For the purpose of this Warrant,
------------
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets (including intellectual property) of the
Company, or any reorganization, consolidation, or merger of the Company where
the holders of the Company's securities before the transaction beneficially own
less than 50% of the outstanding voting securities of the surviving entity after
the transaction.
1.8.2. Assumption of Warrant. If upon the closing of any
---------------------
Acquisition the successor entity assumes the obligations of this Warrant, then
this Warrant shall be exercisable for the same securities, cash, and property as
would be payable for the Shares issuable upon exercise of the unexercised
portion of this Warrant as if such Shares were outstanding on the record date
for the Acquisition and subsequent closing. The Warrant Price shall be adjusted
accordingly. The Company shall use reasonable efforts to cause the surviving
corporation to assume the obligations of this Warrant.
1.8.3. Nonassumption. If upon the closing of any Acquisition the
-------------
successor entity does not assume the obligations of this Warrant and Holder has
not otherwise exercised this Warrant in full, then the unexercised portion of
this Warrant shall be deemed to have been automatically converted pursuant to
Section 1.2 and thereafter Holder shall participate in the Acquisition on the
same terms as other holders of the same class of securities of the Company.
1.8.4. Purchase Right. Notwithstanding the foregoing, at the election
--------------
of Holder, the Company shall purchase the unexercised portion of this Warrant
for cash upon the closing of any Acquisition for an amount equal to (a) the fair
market value of any consideration that would have been received by Holder in
consideration of the Shares had Holder exercised the unexercised portion of this
Warrant immediately before the record date for determining the shareholders
entitled to participate in
10
<PAGE>
the proceeds of the Acquisition, less (b) the aggregate Warrant Price of the
Shares, but in no event less than zero.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
-------------------------
2.1 Stock Dividends, Splits, Etc. If the Company declares or pays a
----------------------------
dividend on its common stock payable in common stock, or other securities,
subdivides the outstanding common stock into a greater amount of common stock,
then upon exercise of this Warrant, for each Share acquired, Holder shall
receive, without cost to Holder, the total number and kind of securities to
which Holder would have been entitled had Holder owned the Shares of record as
of the date the dividend or subdivision occurred.
2.2 Reclassification, Exchange or Substitution. Upon any
------------------------------------------
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities and property
that Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event. Such an event shall include any automatic conversion of the
outstanding or issuable securities of the Company of the same class or series as
the Shares to common stock pursuant to the terms of the Company's Articles of
Incorporation upon the closing of a registered public offering of the Company's
common stock. The Company or its successor shall promptly issue to Holder a new
Warrant for such new securities or other property. The new Warrant shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2 including, without limitation,
adjustments to the Warrant Price and to the number of securities or property
issuable upon exercise of the new Warrant. The provisions of this Section 2.2
shall similarly apply to successive reclassifications, exchanges, substitutions,
or other events.
2.3 Adjustments for Combinations, Etc. If the outstanding Shares are
---------------------------------
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Warrant Price shall be proportionately increased.
2.4 Adjustments for Diluting Issuances. The Warrant Price and the
----------------------------------
number of Shares issuable upon exercise of this Warrant shall be subject to
adjustment, from time to time, in the manner set forth on Exhibit B, if
attached, in the event of Diluting Issuances (as defined on Exhibit B).
2.5 No Impairment. The Company shall not, by amendment of its Articles
-------------
of Incorporation or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at all times
in good faith assist in carrying out all the provisions of this Article 2 and in
taking all such action as may be necessary or appropriate to protect Holder's
rights under this Article against impairment. If the Company takes any action
affecting the Shares or its common stock other than as described above that
adversely affects Holder's rights under this Warrant, the Warrant Price shall be
adjusted downward and the number of Shares issuable upon exercise of this
Warrant shall be adjusted upward in such a manner that the aggregate Warrant
Price of this Warrant is unchanged.
11
<PAGE>
2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant
-----------------------------
Price,the Company at its expense shall promptly compute such adjustment, and
furnish Holder with a certificate of its Chief Financial Officer setting forth
such adjustment and the facts upon which such adjustment is based. The Company
shall, upon written request, furnish Holder a certificate setting forth the
Warrant Price in effect upon the date thereof and the series of adjustments
leading to such Warrant Price.
ARTICLE 3.REPRESENTATIONS AND COVENANTS OF THE COMPANY.
--------------------------------------------
3.1 Representations and Warranties. The Company hereby represents and
------------------------------
warrants to the Holder that all Shares which may be issued upon the exercise of
the purchase right represented by this Warrant, and all securities, if any,
issuable upon conversion of the Shares, shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable, and free of any liens
and encumbrances except for restrictions on transfer provided for herein or
under applicable federal and state securities laws.
3.2 Notice of Certain Events. If the Company proposes at any time (a)
------------------------
to declare any dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro rata to the holders of any class or series of
its stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of common stock; (d) to
merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up; or (e) offer holders of registration rights the opportunity
to participate in an underwritten public offering of the company's securities
for cash, then, in connection with each such event, the Company shall give
Holder (1) at least 20 days prior written notice of the date on which a record
will be taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of common stock will be entitled
thereto) or for determining rights to vote, if any, in respect of the matters
referred to in (c) and (d) above; (2) in the case of the matters referred to in
(c) and (d) above at least 20 days prior written notice of the date when the
same will take place (and specifying the date on which the holders of common
stock will be entitled to exchange their common stock for securities or other
property deliverable upon the occurrence of such event); and (3) in the case of
the matter referred to in (e) above, the same notice as is given to the holders
of such registration rights.
3.3 Information Rights. So long as the Holder holds this Warrant and/
------------------
or any of the Shares, the Company shall deliver to the Holder (a) promptly after
mailing, copies of all communiques to the shareholders of the Company, (b)
within ninety (90) days after the end of each fiscal year of the Company, the
annual audited financial statements of the Company certified by independent
public accountants of recognized standing and (c) within forty-five (45) days
after the end of each of the first three quarters of each fiscal year, the
Company's quarterly, unaudited financial statements.
3.4 Registration Under Securities Act of 1933, as amended. The Company
-----------------------------------------------------
agrees that the Shares shall be subject to the registration rights set forth on
Exhibit C.
ARTICLE 4. MISCELLANEOUS.
-------------
4.1 Term; Notice of Expiration. This Warrant is exercisable, in whole
--------------------------
or in part, at any time and from time to time on or before the Expiration Date
set forth above.
12
<PAGE>
4.2 Legends. This Warrant and the Shares (and the securities issuable,
-------
directly or indirectly, upon conversion of the Shares, if any) shall be
imprinted with a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.3 Compliance with Securities Laws on Transfer. This Warrant and the
-------------------------------------------
Shares issuable upon exercise of this Warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company). The Company
shall not require Holder to provide an opinion of counsel if the transfer is to
an affiliate of Holder or if there is no material question as to the
availability of current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in reasonable detail,
the selling broker represents that it has complied with Rule 144(f), and the
Company is provided with a copy of Holders notice of proposed sale.)
4.4 Transfer Procedure. Subject to the provisions of Section 4.2,
------------------
Holder may transfer all or part of this Warrant or the Shares issuable upon
exercise of this Warrant (or the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) by giving the Company notice of the
portion of the Warrant being transferred setting forth the name, address and
taxpayer identification number of the transferee and surrendering this Warrant
to the Company for reissuance to the transferee(s) (and Holder, if applicable).
Unless the Company is filing financial information with the SEC pursuant to the
Securities Exchange Act of 1934, the Company shall have the right to refuse to
transfer any portion of this Warrant to any person who directly competes with
the Company.
4.5 Notices. All notices and other communications from the Company to
-------
the Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company or the
Holder, as the case may be, in writing by the Company or such Holder from time
to time.
4.6 Waiver. This Warrant and any term hereof may be changed, waived,
------
discharged or terminated only by an instrument in writing signed by the patty
against which enforcement of such change, waiver, discharge or termination is
sought.
4.7 Attorneys' Fees. In the event of any dispute between the parties
---------------
concerning the terms and provisions of this Warrant, the parry prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
13
<PAGE>
4.8 Governing Law. This Warrant shall be governed by and construed in
-------------
accordance with the laws of the State of California, without giving effect to
its principles regarding conflicts of law.
Anchor Pacific Underwriters, Inc.
By: /s/ James R. Dunathan By: /s/ Earl Wiklund
----------------------------- ------------------------------
Name: James R. Dunathan Name: Earl Wiklund
---------------------------- ------------------------------
Title: President/CEO Title: Chief Financial Officer
---------------------------- ------------------------------
14
<PAGE>
APPENDIX 1
NOTICE OF EXERCISE
------------------
1. The undersigned hereby elects to purchase __________ shares of the
Common Stock of Anchor Pacific Underwriters, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
1. The undersigned hereby elects to convert the attached Warrant into
Shares/cash [strike one] in the manner specified in the Warrant. This conversion
is exercised with respect to _________ of the Shares covered by the Warrant.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
Christine McCarthy
Chief Financial Officer
Controllers Department
Imperial Bank or registered assignee
P.O. Box 92991
Los Angeles, CA 90009
3. The undersigned represents it is acquiring the shares solely for
its own account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with applicable
securities laws.
IMPERIAL BANK or registered assignee
__________________________________________
(Signature)
__________________________________________
(Date)
15
<PAGE>
EXHIBIT A
---------
Not Applicable
--------------
16
<PAGE>
EXHIBIT B
---------
IMPERIAL BANK
ANTIDILUTION AGREEMENT
----------------------
This Antidilution Agreement is entered into as of September 30, 1997 by
and between Imperial Bank or registered assignee, ("Purchaser") and Anchor
Pacific Underwriters, Inc. ("the Company").
RECITALS
--------
A. Concurrently with the execution of this Antidilution Agreement, the
Purchaser is purchasing from the Company a Warrant to Purchase Stock (the
"Warrant") pursuant to which Purchaser has the right to acquire from the
Company the Shares (as defined in the Warrant).
B. By this Antidilution Agreement, the Purchaser and the Company
desire to set forth the adjustment in the number of Shares issuable upon
exercise of the Warrant as a result of a Diluting Issuance (as defined in
Exhibit A to the Warrant).
C. Capitalized terms used herein shall have the same meaning as set
forth in the Warrant.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
1. Definitions. As used in this Antidilution Agreement, the following
terms have the following respective meanings:
(a) "Option" means any right, option or warrant to subscribe for,
purchase or otherwise acquire common stock or Convertible Securities.
(b) "Convertible Securities" means any evidences of indebtedness,
shares of stock or other securities directly or indirectly convertible into or
exchangeable for common stock.
(c) "Issue" means to grant, issue, sell, assume or fix a record date
for determining persons entitled to receive any security (including Options),
whichever of the foregoing is the first to occur.
(d) "Additional Common Shares" means all common stock (including
reissued shares) Issued (or deemed to be issued pursuant to Section 2) after
the date of the Warrant. Additional Common Shares does not include, however,
any common stock Issued in a transaction described in Sections 2.1 and 2.2 of
the Warrant; any common
17
<PAGE>
stock Issued upon conversion of preferred stock outstanding on the date of the
Warrant; the Shares; or common stock Issued as incentive or in a nonfinancing
transaction to employees, officers, directors or consultants to the Company.
(e) The shares of common stock ultimately Issuable upon exercise of an
Option (including the shares of common stock ultimately Issuable upon
conversion or exercise of a Convertible Security Issuable pursuant to an
Option) are deemed to be Issued when the Option is Issued. The shares of common
stock ultimately Issuable upon conversion or exercise of a Convertible Security
(other than a Convertible Security Issued pursuant to an Option) shall be
deemed Issued upon Issuance of the Convertible Security.
2. Deemed Issuance of Additional Common Shares. The shares of common
-------------------------------------------
stock ultimately Issuable upon exercise of an Option (including the shares of
common stock ultimately Issuable upon conversion or exercise of a Convertible
Security Issuable pursuant to an Option) are deemed to be Issued when the
Option is Issued. The shares of common stock ultimately Issuable upon
conversion or exercise of a Convertible Security (other than a Convertible
Security Issued pursuant to an Option) shall be deemed Issued upon Issuance of
the Convertible Security. The maximum amount of common stock Issuable is
determined without regard to any future adjustments permitted under the
instrument creating the Options or Convertible Securities.
3. Adjustment of Warrant Price for Diluting Issuances.
--------------------------------------------------
3.1 Weighted Average Adjustment. If the Company issues Additional
---------------------------
Common Shares after the date of the Warrant and the consideration per Additional
Common Share (determined pursuant to Section 9) is less than the Warrant Price
in effect immediately before such Issue (a "Diluting Issuance"), the Warrant
Price in effect immediately before such Issue shall be reduced, concurrently
with such Issue, to a price (calculated to the nearest hundredth of a cent)
determined by multiplying the Warrant Price by a fraction:
(a) the numerator of which is the amount of common stock outstanding
immediately before such Issue plus the amount of common stock that the
aggregate consideration received by Company for the Additional Common Shares
would purchase at the Warrant Price in effect immediately before such Issue,
and
(b) the denominator of which is the amount of common stock outstanding
immediately before such issue plus the number of such Additional Shares.
3.2 Adjustment of Number of Shares. Upon each adjustment of the Warrant
------------------------------
Price, the number of Shares Issuable upon exercise of the Warrant shall be
increased to equal the quotient obtained by dividing (a) the product resulting
from multiplying (i) the number of Shares Issuable upon exercise of the Warrant
and (ii) the Warrant Price, in each case as in effect immediately before such
adjustment, by (b) the adjusted Warrant Price.
18
<PAGE>
3.3 Securities Deemed Outstanding. For the purpose of this Section 3,
-----------------------------
all securities Issuable upon exercise of any outstanding Convertible Securities
or Options, Warrants, or other rights to acquire securities of the Company shall
be deemed to be outstanding.
4. No Adjustment for Issuances Following Deemed Issuances. No
------------------------------------------------------
adjustment to the Warrant Price shall be made upon or after the exercise of
Options or conversion of Convertible Securities.
5. Adjustment Following Changes in Terms of Options or Convertible
---------------------------------------------------------------
Securities. If the consideration payable to, or the amount of common stock
----------
Issuable by, the Company increases or decreases, respectively, pursuant to the
terms of any outstanding Options or Convertible Securities, the Warrant Price
shall be recomputed to reflect such increase or decrease. The recomputation
shall be made as of the time of the Issuance of the Options or Convertible
Securities. Any changes in the Warrant Price that occurred after such Issuance
because other Additional Common Shares were Issued or deemed Issued shall also
be recomputed.
6. Recomputation Upon Expiration of Options or Convertible Securities.
-------------------------------- ---------------------------------
The Warrant Price computed upon the original Issue of any Options or
Convertible Securities, and any subsequent adjustments based thereon, shall be
recomputed when any Options or rights of conversion under Convertible
Securities expire without having been exercised. In the case of Convertible
Securities or Options for common stock, the Warrant Price shall be recomputed
as if the only Additional Common Shares Issued were the shares of common stock
actually Issued upon the exercise of such securities, if any, and as if the
only consideration received therefor was the consideration actually received
upon the Issue, exercise or conversion of the Options or Convertible
Securities. In the case of Options for Convertible Securities, the Warrant
Price shall be recomputed as if the only Convertible Securities Issued were the
Convertible Securities actually Issued upon the exercise thereof, if any, and
as if the only consideration received therefor was the consideration actually
received by the Company (determined pursuant to Section 9), if any, upon the
Issue of the Options for the Convertible Securities.
7. Limit on Readjustments. No readjustment of the Warrant Price
----------------------
pursuant to Sections 5 or 6 shall increase the Warrant Price more than the
amount of any decrease made in respect of the Issue of any Options or
Convertible Securities.
8. 30 Day Options. In the case of any Options that expire by their
--------------
terms not more than 30 days after the date of Issue thereof, no adjustment of
the Warrant Price shall be made until the expiration or exercise of all such
Options.
9. Computation of Consideration. The consideration received by the
----------------------------
Company for the Issue of any Additional Common Shares shall be computed as
follows:
19
<PAGE>
(a) Cash shall be valued at the amount of cash received by the
Corporation, excluding amounts paid or payable for accrued interest or accrued
dividends.
(b) Property. Property, other than cash, shall be computed at the fair
--------
market value thereof at the time of the Issue as determined in good faith by
the Board of Directors of the Company.
(c) Mixed Consideration. The consideration for Additional Common Shares
-------------------
Issued together with other property of the Company for consideration that
covers both shall be determined in good faith by the Board of Directors.
(d) Options and Convertible Securities. The consideration per Additional
----------------------------------
Common Share for Options and Convertible Securities shall be determined by
dividing:
(i) the total amount, if any, received or receivable by the
Company for the Issue of the Options or Convertible Securities, plus the
minimum amount of additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to the Company upon
exercise of the Options or conversion of the Convertible Securities, by
(ii) the maximum amount of common stock (as set forth in the
instruments relating thereto, without regard to any provision contained therein
for a subsequent adjustment of such number) ultimately Issuable upon the
exercise of such Options or the conversion of such Convertible Securities.
10. General.
-------
10.1 Governing Law. This Antidilution Agreement shall be
-------------
governed in all respects by the laws of the State of California as such laws
are applied to agreements between California residents entered into and to be
performed entirely within California.
10.2 Successors and Assigns. Except as otherwise expressly
----------------------
provided herein, the provisions hereof shall inure to the benefit of; and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
10.3 Entire Agreement. Except as set forth below, this
----------------
Antidilution Agreement and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
10.4 Notices etc. All notices and other communications
-----------
required or permitted hereunder shall be in writing and shall be mailed by
first class mail, postage prepaid, certified or registered mail, return
receipt requested, addressed (a) if to Purchaser at Purchaser's address as set
forth below, or at such other address as Purchaser shall have furnished to the
Company in writing, or (b) if to the Company, at the Company's address
20
<PAGE>
set forth below, or at such other address as the Company shall have furnished
to the Purchaser in writing.
10.5 Severability. In case any provision of this
------------
Antidilution Agreement shall be invalid, illegal or unenforceable,the validity,
legality and enforceability of the remaining provisions of this Antidilution
Agreement shall not in any way be affected or impaired thereby.
10.6 Titles and Subtitles. The titles of the sections and
--------------------
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Antidilution Agreement.
10.7 Counterparts. This Antidilution Agreement may be
------------
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
PURCHASER ISSUER
IMPERIAL BANK
Anchor Pacific Underwriters, Inc
By: By: /s/ James R. Dunathan
----------------- ______________________
Name:Joseph J. McCarthy Name: James R Dunathan
Title:Vice President Title: President/CEO
By: /s/ Earl Wiklund
______________________
Name: Earl Wiklund
Title: Chief Financial Officer
Address:1800 Sutter Street,
Suite 400
Concord, CA 94520
21
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 4,324,810
<SECURITIES> 0
<RECEIVABLES> 965,584
<ALLOWANCES> 40,882
<INVENTORY> 0
<CURRENT-ASSETS> 5,524,978
<PP&E> 3,033,013
<DEPRECIATION> 2,384,246
<TOTAL-ASSETS> 9,399,988
<CURRENT-LIABILITIES> 8,021,436
<BONDS> 0
0
0
<COMMON> 93,817
<OTHER-SE> 707,575
<TOTAL-LIABILITY-AND-EQUITY> 9,399,988
<SALES> 0
<TOTAL-REVENUES> 7,005,478
<CGS> 0
<TOTAL-COSTS> 7,318,002
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 152,152
<INCOME-PRETAX> (598,071)
<INCOME-TAX> 4,470
<INCOME-CONTINUING> (602,541)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (602,541)
<EPS-PRIMARY> (0.13)
<EPS-DILUTED> (0.13)
</TABLE>
