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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM [ ] TO [ ]
COMMISSION FILE NUMBER: 0-9628
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: (925) 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 for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. [X]Yes [ ] No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K ((S)229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by reference in Part
III of this Form 10-K or any amendment to this Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of
the registrant as of March 13, 1998 was $2,352,712.
As of March 13, 1998, the Registrant had 4,709,727 shares of common
stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Proxy Statement to be mailed to shareholders in
connection with the Registrant's 1998 Annual Meeting of Shareholders are
incorporated by reference into Part III hereof.
Exhibit Index is on page 18
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ANCHOR PACIFIC UNDERWRITERS, INC.
TABLE OF CONTENTS
PART I.
ITEM 1. Business............................................... 3
ITEM 2. Properties.............................................. 8
ITEM 3. Legal Proceedings....................................... 9
ITEM 4. Submission of Matters to a Vote of Security Holders..... 9
PART II.
ITEM 5. Market for Registrant's Common Equity and Related Shareholder
Matters.................................................. 9
ITEM 6. Selected Financial Data ................................ 10
ITEM 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations .............................. 10
ITEM 8. Financial Statements and Supplementary Data ............ 17
ITEM 9. Changes in Disagreements With Accountants on Accounting and
Financial Disclosure ................................... 17
PART III.
Item 10. Directors and Executive Officers of Registrant ......... 17
ITEM 11. Executive Compensation ................................. 17
ITEM 12. Security Ownership of Certain Beneficial Owners and
Management ............................................. 17
ITEM 13. Certain Relationships and Related Transactions ......... 18
PART IV.
ITEM 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K ................................................... 18
<PAGE>
PART I
ITEM 1. BUSINESS
SUMMARY
Anchor Pacific Underwriters, Inc. is a holding company that is primarily
engaged in insurance brokerage and administration services through its three
direct and indirect wholly-owned subsidiaries. Anchor Pacific Underwriters,
Inc. and the subsidiaries listed in the chart below are collectively referred to
as "Anchor" unless the context otherwise requires.
ANCHOR PACIFIC UNDERWRITERS, INC.
(a Delaware corporation)
Holding Company
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HARDEN & COMPANY INSURANCE SERVICES, INC. PUTNAM, KNUDSEN & WIEKING, INC.
(a California corporation) (a California corporation)
Employee Benefits Administrator Property & Casualty Insurance
Group Health Insurance Targeted Industry Brokerage
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BENEFIT RESOURCES, INC.
(an Arizona corporation)
Employee Benefits Administrator
Group Health Insurance
Anchor provides the following services to private sector small and middle
market companies, groups, trusts, associations, government agencies and
individual consumers: (a) insurance brokerage; and (b) third-party claims
administration, employee benefits consulting, underwriting and risk analysis.
Anchor offers its customers, as agent, broker or administrator, a range of
products and services tailored to the specific needs of such customers.
Anchor markets the products and services of more than 50 commercial
insurance companies and over a dozen managed care and preferred provider
organizations. The marketing of products and services is carried out through 10
direct sales representatives and over 500 independent insurance brokers.
Anchor's customer base is in the Western United States, primarily in California,
Arizona and Oregon. For the fiscal year ended December 31, 1997, Anchor
generated in excess of $10 million in revenues.
The principal executive offices of Anchor are located approximately 30
miles east of San Francisco, California, at 1800 Sutter Street, Suite 400,
Concord, California 94520.
HISTORY
Anchor was organized in 1986 as a California general partnership for the
specific purpose of acquiring Harden & Company Insurance Services, Inc., a
third-party employee benefits administrator ("Harden"), from Alex Brown
Financial Group. Anchor was reorganized as a private California corporation in
March 1987, and reincorporated in January 1995, as a Delaware corporation in
connection with a merger with System Industries, Inc. ("System"). As a result
of the merger, Anchor became a public company.
3
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Since its inception, Anchor has expanded its insurance and administration
service capabilities through internal growth as well as a series of
acquisitions. From 1986 through 1990, Anchor, through Harden, focused on
providing administration 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. Because it had
been largely inactive during the past several years, Anchor dissolved APPFCO in
1997.
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 located in Walnut Creek, California
in March 1996; certain property and casualty accounts from Norman I. Robins
("Robins"), in April 1996; and certain property and casualty accounts from John
R. McPherson ("McPherson"), in May 1996. In July 1997, and again in January
1998, Harden took over third-party administration businesses, located in Los
Angeles, California and Portland, Oregon, that were previously serviced by
unrelated third parties. In connection with this recent expansion Harden hired
34 employees in Los Angeles and 70 employees in Portland which were previously
employed by the prior administrators. Anchor will continue to look for
opportunities to expand its third-party administration services in the Western
United States.
OPERATIONS
INSURANCE BROKERAGE
Anchor first entered the insurance brokerage business in 1990 through an
acquisition. Since then it has primarily grown its insurance brokerage business
through acquisitions, the largest being PKW which was acquired in 1994. This
segment of Anchor's business focuses on property and casualty (both commercial
and personal lines), health, life and disability, as well as workers'
compensation. PKW acts as an agent on behalf of insurers and other
intermediaries in soliciting, negotiating and effecting contracts of insurance,
and as a broker in procuring insurance contracts on behalf of insureds.
Insurance brokerages tend to build long-term relationships with their clients,
with the initial placement of insurance coverage often resulting in subsequent
annual renewals.
As an insurance agent and broker, PKW derives income from the sale of
insurance products and services and the receipt of commissions generated
therefrom. Commissions, which generally are based on a percentage of gross
premiums, and contingent commissions, which are generally based on the insurance
carriers underwriting profits derived over a given period of time, can vary
substantially within the insurance industry. The ultimate size of commissions
may be influenced by a number of factors, including the type of insurance, the
amount of the premium, the insurance carrier's loss experience with respect to
policies placed by Anchor, and the scope of the services that Anchor renders.
Anchor derived 31%, 43% and 41% of its revenues in 1997, 1996 and 1995,
respectively, from its insurance brokerage activities. Since it acquired PKW,
Anchor has devoted a substantial effort to the financial and management
reorganization of this business segment with particular emphasis on improving
operating procedures which has resulted in improved operating results.
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THIRD-PARTY CLAIMS ADMINISTRATION AND EMPLOYEE BENEFITS CONSULTING
The employee benefits business segment of Anchor is conducted through
Harden and BRI and primarily involves third-party health benefits administration
activities. This business segment engages in designing, implementing and
administering health benefit plans for small to medium sized employer groups.
Administration services provided by Harden and BRI include receiving and
managing employer plan contributions and/or premium payments, monitoring
employee and dependent eligibility, preparing required government and tax
reports, handling day-to-day administration, reviewing and analyzing claims data
for coverage, and managing the claims settlement process. Anchor, through
Harden and BRI, also helps develop insurance products and services tailored to
the specific needs of the client, provides risk analysis, determines appropriate
benefit and funding levels for particular insurance programs, and conducts loss
control and cost studies for insurance companies and self-insured employers. As
compensation for its claims administration services, Harden and BRI generally
receive fees based on a percentage of premiums collected, or on a per capita
basis. Anchor derived 69%, 57% and 59% of its revenues in 1997, 1996 and 1995,
respectively, from its third-party administration activities.
In the third quarter of 1996, the insurance carrier which previously
offered a 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 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 was 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.
Unlike the earlier transition, Harden and BRI lost few accounts and the impact
on Harden and BRI's revenue was minimal.
The new insurance carrier is a subsidiary of the largest HMO in Nevada.
Management believes that the new insurance carrier enabled Anchor to provide the
small group medical insurance market with strong managed care products. The
new insurance carrier's business strategy has been 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 favorable and
the change has been widely accepted. Also, effective July 1, 1997, the same
insurance carrier purchased a significant volume of business from another
insurance carrier in Los Angeles, California. The new insurance carrier then
entered into a contract with Harden to provide third-party administration
services to this business.
Effective January 1, 1998, Anchor and Harden entered into an agreement to
acquire the third-party administration business of a firm based in Portland,
Oregon. This contract will allow Harden to expand its marketing and servicing
territory in Oregon, Washington, Idaho and Nevada and is expected to
substantially enhance the opportunity to increase Harden's revenues in 1998 and
future years. Thus far, the response from clients formerly serviced by the
Portland administrator has been very encouraging.
Marketing for new business began during 1996 and coincided with the release
of new products by Harden and BRI. 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 marketing territories
in the western states.
INSURANCE PREMIUM FINANCING
Anchor, through Anchor Pacific Premium Finance Company ("APPFCO"), in the
past has provided insurance premium financing services primarily to property and
casualty clients of PKW. During 1996, Anchor derived less than 1% of its
revenue from its insurance premium financing activities. This reduction in
revenue was due primarily to Anchor's placing a greater share of its premium
financing through other financing facilities that were more competitively
advantageous to the client. As a result of its inactivity, Anchor dissolved
APPFCO effective May 30, 1997.
5
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RECENT DEVELOPMENTS/BUSINESS STRATEGY
Anchor's strategy is to expand its third-party administration services by:
(a) continuing to develop through its marketing partners 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.
EMPLOYEES
As of March 13, 1998, Anchor and its subsidiaries employed approximately
230 full-time employees. None of its employees are presently represented by a
union or covered by a collective bargaining agreement. Anchor believes its
employee relations are good.
EXECUTIVE OFFICERS OF THE REGISTRANT
The following information is provided regarding certain executive officers
of Anchor and/or its subsidiaries.
<TABLE>
<CAPTION>
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NAME Age Position Held Since
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<S> <C> <C> <C>
James R. Dunathan 61 President, Chief Executive Officer and 1987
Director of Anchor
Earl Wiklund 50 Senior Vice President, Chief Financial 1987
Officer, Secretary and Director of Anchor
Christine D. Behrens 60 Senior Vice President, Chief Operating 1997
Officer of PKW
Lynn A. Boyd 53 President of Harden 1996
Raymond P. Petersen 60 Executive Vice President of Harden 1996
Donald B. Putnam 65 Chairman of Executive Committee of PKW and 1994
Director of Anchor
Robert H. Rath 53 President of BRI 1997
James P. Wieking 66 Executive Vice President of PKW and 1994
Director of Anchor
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</TABLE>
JAMES R. DUNATHAN. Mr. Dunathan has over 39 years of experience in the
insurance industry and his family has been involved in the insurance industry
since 1880. He joined Harden in 1985 and initiated the formation of Anchor in
late 1986. Mr. Dunathan served as a member of the Board of Directors of the
Professional Insurance Agents Association for 11 years and as President of such
Association from 1975 to 1976. Currently Mr. Dunathan serves on the Business
Leaders Alliance for Contra Costa County, appointed by the Board of Supervisors.
He also serves as a Director of the Barbara Milliff Center in Concord,
California, a non-profit school for children with developmental disabilities.
Mr. Dunathan completed his undergraduate studies at Ohio State University; and
served actively in the U.S. Navy as a naval aviator while he continued graduate
work at the U.S. Armed Forces Institute in Japan.
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EARL WIKLUND. In addition to his duties at Anchor, Mr. Wiklund also serves
as the Chief Executive Officer of Anchor's subsidiaries, Harden and BRI. He has
over 26 years of experience in various operational, administrative and financial
management positions. Mr. Wiklund joined Harden in 1984 as Vice President,
Finance. Most recently he served as Treasurer for the Independent
Administrators Association, as member of the Legislative Committee, as well as
member of the Board of Directors of such Association. Mr. Wiklund graduated
from California State University, Sacramento, with a B.S. degree and received
his M.B.A. from St. Mary's College. He also serves as Chairman of Anchor's
Audit, Budget & Finance Committee.
CHRISTINE D. BEHRENS. Ms. Behrens joined Anchor in 1980 as Senior Vice
President in its property casualty division. Ms. Behrens is currently
responsible for the daily operational functions including all administrative and
client servicing activities at PKW. Ms. Behrens began her career in the
insurance industry in 1955. She has been actively involved as an agency owner,
and later as an officer and producer of commercial accounts for Poulton &
Associates and EXPO/PA in Oakland (which were purchased by Anchor in 1980 and
merged into PKW in 1994). Ms. Behrens has served as a board member of both the
Oakland Association of Insurance Agents and later the Mt. Diablo Chapter of CPCU
where she currently serves as President. Ms. Behrens serves on the PKW
Executive Committee.
LYNN A. BOYD. Mr. Boyd joined Harden in 1991. He has over 30 years
experience in the group health insurance field including positions with Blue
Cross, Clifton & Company, Curtis Day & Company and Sher Associates. His sales
responsibilities at Harden primarily focus on the production of self-insured and
large case fully insured accounts. Mr. Boyd also is responsible for the daily
operational functions of Harden and serves on the Harden Executive Committee.
He received his B.S.B.A. from the University of Denver with a major in Finance
and a minor in Accounting.
RAYMOND P. PETERSEN. Mr. Petersen joined Harden in 1987 following several
years with Marsh-McLennan Associates in San Francisco. His 30 years in the
insurance industry include sales management and marketing positions for both
property and casualty and group health benefits companies. At Harden he is
responsible for the development of sales from sponsored programs for state
associates and trade groups. Another priority for him is directing the network
of contracted General Agents and their dedicated Producers. Mr. Petersen serves
on the Harden Executive Committee.
DONALD B. PUTNAM. Mr. Putnam is an insurance professional with over 39
years of experience. He has been actively involved as a director or officer of
many California insurance associations and served as Director of the National
Association of Insurance Brokers (NAIB) and Intersure, an international
affiliation of insurance brokers. He also recently served as Chairman of the
NAIB-PAC. Mr. Putnam received his B.S. degree in Business from the University
of California, Berkeley.
ROBERT H. RATH. Mr. Rath joined BRI in 1997 with 25 years of experience in
the employee benefits administration field. His career includes extensive
management experience in underwriting, sales and claims as well as EPO, PPO and
HMO development and implementation. For the past 12 years, Mr. Rath's
activities have focused on marketing and sales management of employee benefits
plans in the Western United States. He has also served as board member and
President of both the Society of Professional Benefit Administrators and the
Independent Administrators Association of California. Mr. Rath serves on the
BRI Executive Committee.
JAMES P. WIEKING. Mr. Wieking has been active in the insurance business
for 40 years. Mr. Wieking was formerly the owner of Wieking, Connolly &
Associates in Oakland, which merged with PKW in 1983. Mr. Wieking has been
involved in various civic and professional associations and has served as a
board member of the Pacific Network Group and the Independent Insurance Agents
Association, in Oakland. He is a graduate of the University of California,
Berkeley.
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REGULATION
The activities of Anchor that are related to insurance brokerage, agency
services and third-party administration are subject to licensing and regulation
by the jurisdictions in which such activities are conducted. In addition to
regulatory requirements applicable to Anchor, most jurisdictions require that
individuals engaged in insurance brokerage and agency activities be personally
licensed. As a result, a number of Anchor's employees are so licensed. Anchor's
operations depend on the validity of and its continued good standing under the
licenses and approvals pursuant to which it operates. Licensing laws and
regulations vary from jurisdiction to jurisdiction. In all jurisdictions, the
applicable licensing laws and regulations are subject to amendment or
interpretation by regulatory authorities. Such authorities generally are vested
with broad discretion as to the granting, renewing, and revoking of licenses and
approvals.
Other factors, such as client uncertainty about the potential effect of
health care reform, could 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 serving
middle market clients, leave 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 future health care reform legislation will have on Anchor's business
condition or operations. Anchor is unaware of any current regulatory proposals
that could have any material effect on its liquidity, capital resources or
operations.
INFLATION
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.
COMPETITION
The insurance brokerage and service business is highly competitive and
there are many insurance brokerage and administration service organizations who
actively compete with Anchor in every area of its business. Anchor competes
directly with national insurance brokerages, insurance companies and health
maintenance organizations that market their own products, through independent
agencies, brokers and third-party administrators, as well as with entities which
self insure or sponsor other insurance programs. Many of these competitors are
larger than Anchor and have greater resources. Anchor seeks to compete by
specializing in specific market segments, developing specialty products for
those markets, and maintaining relationships with consumers by providing
personal service normally associated with small local businesses, together with
the expertise, flexibility and diversity of products that can only be provided
by a larger broker. Anchor's claims administration operations compete with
independent claims administration firms and with similar operations conducted by
subsidiaries of large insurance companies and insurance brokerage companies.
Anchor believes it has several competitive advantages, including: (a) a
growing market share within its current operating territory as one of the top
ten insurance firms in the Northern California Bay Area; (b) proven ability to
identify and close acquisitions; (c) a public equity currency; and (d) an
experienced management team whose operating philosophy is committed to
preserving and enhancing acquired companies' value.
ITEM 2. PROPERTIES
Anchor leases approximately 32,099 rentable square feet of office space at
its executive offices at 1800 Sutter Street, Suite 400, Concord, California
94520. From November 1, 1994 through October 31, 1999, Anchor must pay rent of
$1.40 per rentable square foot per month (approximately $44,939 per month), and
from November 1, 1999 through October 31, 2004, Anchor must pay rent of $1.75
per rentable square foot per month (approximately $56,173 per month). Anchor
also has an option to lease additional office space at its executive offices in
Concord.
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In addition to Anchor's leased space, PKW has a lease obligation on
approximately 13,128 rentable square feet of office space in Oakland,
California; BRI leases approximately 6,992 rentable square feet of office space
in Scottsdale, Arizona; and Harden leases approximately 6,005 rentable square
feet of office space in Los Angeles, California. PKW must pay rent of between
$1.75 and $2.00 per rentable square foot per month under its lease, which
expires on November 30, 1999. Under its lease, which expires on May 31, 2002,
BRI must pay rent of between $0.84 and $0.90 per rentable square foot per month,
plus operating expenses. Harden must pay rent in Los Angeles, California of
$1.36 per rentable square foot per month under one lease, which expires on March
31, 1999 and $1.10 per rentable square foot per month under another lease, which
expires on August 7, 1998.
PKW relocated its offices in December 1994 to Anchor's office space in
Concord, California and subleased its offices in Oakland. In May 1995, December
1995, and October 1997, PKW entered into subleases with respect to 82%, 10% and
8%, respectively, of PKW's prior office space in Oakland. The amounts,
classified as short and long-term liabilities with respect to the PKW leases,
reflect the shortfall between sublease income to be received and PKW's lease
expense to be paid.
ITEM 3. 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 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER MATTERS
Prior to the consummation of the merger with System, Anchor was a privately
held California corporation with approximately 63 shareholders. Consequently,
there was no established trading market for Anchor's common stock. As of March
13, 1998, there were approximately 4,709,727 shares of Anchor's common stock
outstanding, held by approximately 2,000 shareholders of record. As of March
13, 1998, there also were warrants to purchase 714,562 shares of common stock
and options to purchase 648,650 shares of common stock of Anchor outstanding.
The following table sets forth historical trade information for Anchor common
stock.
<TABLE>
<CAPTION>
===================================================================================================================================
COMMON STOCK QUARTERLY TRADE HISTORY Quarterly Volume Quarterly High/Ask Quarterly Low/Bid
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<S> <C> <C> <C>
March 31, 1996 28,500 $2.17 $ .96
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June 30, 1996 21,200 2.00 1.21
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September 30, 1996 10,500 1.83 1.21
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December 31, 1996 180,500 1.61 .83
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March 31, 1997 104,600 1.25 .75
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June 30, 1997 51,000 1.04 .61
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September 30, 1997 46,400 .96 .63
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December 31, 1997 23,100 .95 .72
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</TABLE>
Since the January 1995 merger with System, Anchor's shares of common stock
have publicly traded on the OTC Bulletin Board (Symbol: APUX). At such time it
meets certain minimum market capitalization requirements, Anchor intends to seek
to list its shares on The Nasdaq Small-Cap Market; however, there can be no
assurance as to when or whether such shares will be so listed.
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Holders of Anchor common stock are entitled to such dividends as may be
declared from time to time by the Board of Directors out of legally available
funds. Anchor has not paid any cash or stock dividends to date. Anchor does
not expect to pay dividends in the foreseeable future.
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth certain historical information for Anchor
which is based on, and should be read in conjunction with, Anchor's audited
financial statements that are being filed as part of this report.
<TABLE>
<CAPTION>
ANCHOR PACIFIC UNDERWRITERS, INC.
Selected Financial Data
==============================================================================================================================
1997 1996 1995 1994 1993
---------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Revenues 1/ $10,092,532 $ 7,994,484 $ 8,761,278 $ 6,091,165 $4,767,820
Income (Loss) before
other expenses, net 1/ $ (482,377) $ (703,696) $ (235,999) $ 63,349 $ 232,674
Loss $ (946,691) $(1,405,800) $ (867,029) $ (650,489) $ (1,662)
Loss Per Share 2/ $(0.21) $(0.37) $(0.23) $(0.22) $(0.01)
Weighted Average
Shares Outstanding 2/ 4,612,153 3,766,176 3,819,605 3,022,658 2,715,918
Cash Flow From
Operations (Deficit) $ 10,571 $ (786,971) $ 173,340 $ (534,364) $ 345,909
Total Assets $ 9,538,165 $10,511,439 $12,732,433 $13,134,383 $7,689,637
Total Long-Term
Liabilities $ 1,836,132 $ 922,950 $ 2,412,852 $ 1,656,269 $ 514,651
Shareholders'
Equity $ 457,242 $ 1,107,231 $ 1,563,032 $ 2,740,463 $1,889,987
==============================================================================================================================
</TABLE>
1/ Consistent with Anchor's audited financial statements set forth elsewhere in
- --
this Annual Report, both Revenues and Income (Loss) before other expenses,
net, include interest income.
2/ Earnings (Loss) Per Share and Weighted Average Shares Outstanding have been
- --
retroactively restated to reflect effects of the
10 for 1 stock split effected January 6, 1995.
ITEM 7. 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, a third-party employee benefits
administrator. Anchor was reorganized as a private California corporation in
March 1987, and became a public reporting Delaware corporation on January 6,
1995, when it merged with System.
Since its inception, Anchor has expanded its insurance and administration
service capabilities through internal growth and a series of acquisitions.
Anchor expects to continue to expand its third-party administration services
operation and to explore other complementary expansion opportunities.
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Historically, Anchor derived a majority of its revenues from third-party
administration services. As a result of its acquisitions made during 1994 and
1996, Anchor significantly increased the percentage of its revenues derived from
property and casualty insurance brokerage activities. In July 1997 and January
1998, Harden entered into significant new contracts through its marketing
partners to provide third-party administration services in Los Angeles,
California and Portland, Oregon. Management expects that these recent contracts
will substantially increase the percentage of revenues derived from third-party
administration services.
RESULTS OF OPERATIONS -- YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
GENERAL
Anchor derives a portion of its revenues from commissions, which generally
are based on a percentage of gross premiums and contingent commissions, which
generally are based on underwriting profits derived over a given period of time
by the insurance carrier, and fees for claims administration (including
underwriting and risk analysis) services, which 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 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" in which 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 resulting 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 and any loss of revenues that may result from workers'
compensation reform.
Anchor has taken steps to strengthen the sales management at Harden and BRI
by hiring seasoned sales and marketing executives to take over marketing
responsibilities. Product development and new product sales continue to be a
top priority, as does geographical diversification into other states and
marketing territories. Marketing for new business began in 1996 and coincided
with the release of new products by Harden and BRI. Market reaction to these
changes has been encouraging and the increase in new revenue is beginning to
match prior periods of production. Harden and BRI have been successful in
securing an alternative insurance carrier to strengthen and broaden their
product offerings in the small group market, as well as facilitate geographic
diversification. This new insurance carrier has negotiated a multi-year,
exclusive contract with Harden and BRI which management believes will enhance
sales opportunities in California and Arizona. Furthermore, Harden has entered
into significant new contracts to provide third-party administration services
through its marketing partners. Management anticipates that these new contracts
will increase the percentage of revenues Anchor derives from third-party
administration services. The new administration services operation in Oregon
is also expected to produce substantial revenue increases and provide a platform
for marketing expansion in the northern tier of the western states (Oregon,
Washington, Idaho and Nevada).
REVENUES
TOTAL REVENUES. Total revenues for 1997 were $10,092,532, an increase of
$2,098,048, or 26.2%, over 1996 revenues of $7,994,484. The increase in revenue
was primarily due to the increase in fee income derived from third-party
administration services at both Harden and BRI. Anchor's revenues vary from
quarter to quarter as a result of the timing of policy renewals and net new/lost
business production, whereas expenses are fairly uniform throughout the year.
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 three years ended December 31, 1997, 1996 and 1995. The
percentage of revenues generated from premium finance services are no longer
included in the following table inasmuch as the premium finance services
conducted by APPFCO were discontinued effective May 30, 1997, due to
inactivity.
11
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1997 1996 1995
============================================================================================================================
<S> <C> <C> <C>
Insurance Brokerage Commissions 31% 43% 41%
- ----------------------------------------------------------------------------------------------------------------------------
Third-Party Administration Fees 69% 57% 59%
- ----------------------------------------------------------------------------------------------------------------------------
Total 100% 100% 100%
==== ==== ====
===========================================================================================================================
</TABLE>
Harden has recently entered into new administration contracts through its
marketing partners to provide third-party administration services in Los
Angeles, California and Portland, Oregon. As of result of these new contracts,
management expects that the percentage of its revenues that are derived from
third-party administration services will continue to increase during 1998.
COMMISSIONS. Commissions for property and casualty 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 1997 were $3,060,309, a decrease of $310,097, or 9.2%, as compared to
$3,370,406 of commissions for 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 1997 were $6,952,655, an increase
of $2,441,975, or 54.1%, as compared to $4,510,680 in fees for 1996. This
increase in fee income is the direct result of new business generated from
projects associated with the new insurance carrier and new administrative
contracts, as discussed above, and administrative fees generated from the
release of new products.
Fee revenues generated by Anchor in 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) rated;
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 49.9% of Harden's
revenues (or approximately 22% of Anchor's total revenues) in 1997, and revenues
related to the administration of self-insured programs, described in (b) above,
accounted for approximately 42.2% of Harden's revenues (or approximately 18.6%
of Anchor's total revenues) in 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.
The insurance company which offered the product that accounted for 65% of
Harden's third-party administration revenues in 1994 informed Harden in early
1995 that as a result of changes in its business strategy, it was discontinuing
to offer such an insurance product by the 1995 year end. Harden obtained a
binding commitment on July 20, 1995 from an A+ (Superior) rated insurance
carrier to underwrite the risk and provide a replacement product as of October
1, 1995. The transition to the new carrier caused some clients to reevaluate
their insurance needs. In conjunction with this transition process, existing
clients were also required to satisfy the new insurance carrier's underwriting
requirements. During the first quarter of 1996, one client who represented
approximately 9% of Harden's 1995 revenues (or 3.7% of Anchor's consolidated
revenues) was advised by the new insurance carrier that it did not meet its
underwriting standards. As a result of the transition to the new insurance
carrier, Harden experienced a near term loss of business accounts and revenues.
This new insurance company, the A+ (Superior) rated insurance carrier,
which provided the replacement product as of October 1, 1995, informed Harden in
the third quarter of 1996, that as a result of changes in its business strategy,
it too would discontinue offering such an insurance product by the end of
February 1997. This product had represented 51% of Harden and BRI's revenue (or
27% of Anchor's total revenue).
As of October 31, 1996, Harden obtained a commitment from an A- (Excellent)
rated insurance carrier to underwrite the risk and provide a replacement product
effective December 1, 1996. The transition to the new insurance carrier has
been less disruptive for Harden and BRI's clients than the first transition
because the new insurance carrier assumed all policies in California and
the majority of policies in Arizona thereby
12
<PAGE>
avoiding the loss of accounts which Harden and BRI experienced earlier. As a
result, the impact on Harden and BRI's revenue has been minimal.
The new 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 components.
The new insurance carrier's business strategy has been 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 Harden and BRI distributors has been favorable.
As of July 1, 1997 and January 1, 1998, respectively, Harden has entered
into contracts through its marketing partners to provide third-party
administration services in Los Angeles, California and Portland, Oregon.
Management expects that these recent agreements will substantially increase the
percentage of income derived from third-party administration services in 1998
and future years. In addition, the contract in Portland will allow Harden to
expand its marketing and servicing territory in Oregon, Washington, Idaho and
Nevada.
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 $79,568, $111,656 and $145,156 in 1997, 1996
and 1995, respectively.
EXPENSES
TOTAL EXPENSES. Total operating expenses for 1997 were $10,574,909, an
increase of $1,876,729, or 21.6%, as compared to 1996 operating expenses of
$8,698,180. 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 the expansion of third-party
administration services business at both Harden and BRI.
EMPLOYEE COMPENSATION AND BENEFITS. Employee compensation and benefits for
1997 were $6,822,508, an increase of $1,287,959, or 23.3%, as compared to 1996
employee compensation of $5,534,549. The increase related primarily to greater
staffing needs required to service new third-party administration projects at
both Harden and BRI.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses were $3,752,401, $3,163,631 and $3,048,242 in 1997, 1996
and 1995, respectively. The $588,770, or 18.6%, 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 was $285,049, $379,071 and $161,769 in
1997, 1996 and 1995, respectively. The decrease in interest expense in 1997, as
compared to 1996, resulted from the termination of services of an investment
banker and; the conversion of the $600,000 Series A Debenture and $315,000 of
the Debentures and Bridge Notes into shares of Anchor's common stock (as
discussed below).
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
$228,635, $380,832 and $409,908 in 1997, 1996 and 1995, respectively. The
decrease in amortization of goodwill 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 $8,470, $6,830, and $4,800 in 1997,
1996 and 1995, respectively. An analysis of Anchor's provision for income taxes
is presented in Note 9 of the Notes to Consolidated Financial Statements.
13
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Anchor reported net cash flows provided by operations of $10,571 for the
twelve months ended December 31, 1997, compared to net cash flows (used in)
from operations of ($786,971) for the twelve months ended December 31, 1996.
During 1997, Anchor met its operating and capital needs from several sources,
including borrowing under its existing credit agreements and the proceeds from
the 1997 Offering (as discussed below).
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).
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 (discussed below), by an exchange
of the Bridge Notes. The basic terms of the 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 each $10,000 in principal invested, the
purchaser would receive a warrant to purchase 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
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
Notes chose alternative (a) above, and the remaining $45,000 chose alternative
(b) above. Subsequently, Anchor and certain holders of the 1997 Offering agreed
to extend the term of such 1997 Offering. As of March 13, 1998, $140,000 of the
1997 Offering remained outstanding.
In 1995, Anchor issued $370,000 of 10% Convertible Subordinated Debentures
(the "Debentures") and $600,000 of Series A 10% Convertible Subordinated
Debentures (the "Series A Debenture"). Investors holding $270,000 of the
Debentures, including seven members of the Board of Directors, and $600,000 of
the Series A Debenture, converted their debentures into 644,444 shares of
Anchor's common stock at $1.35 per share. These conversions reduced Anchor's
outstanding indebtedness by $870,000 and, in turn, increased shareholders'
equity by $870,000. As of March 13, 1998, $40,000 of the Debentures had been
repaid in full, and $60,000 remained outstanding under the terms of the
Debentures.
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 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 improved 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. 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 the first quarter of 1997, Anchor began 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 March 13, 1998, Anchor had
received $305,000 from said investors. Anchor utilized 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) up to
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
14
<PAGE>
splits, stock dividends, recapitalizations and reorganizations. Purchasers of
the 1997 Offering, as of March 13, 1998, consist of eight members of the Board
of Directors and other qualified investors.
Capital and certain acquisition related expenditures were $108,364 and
$184,035 for the twelve months ended December, 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.
Short-term debt, current portion of long-term debt and current portion of
long-term liabilities at December 31, 1997, totaling in the aggregate $1,203,216
(as compared to $2,424,508 at December 31, 1996), consisted of: (a)
approximately $231,000 of future fixed payments under a consulting agreement
entered into with a company affiliated with the former shareholders of BRI; (b)
$351,459 representing the current portion of a $1,600,000 term loan with a
regional San Francisco bank (described below); (c) $214,400 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; (d) $60,000 of the Debentures; (e) $180,000 of the 1997 Offering; and
(f) approximately $166,357 the for certain other current liabilities.
On January 7, 1997, a $1,000,000 bank credit line which Anchor had
maintained with a regional San Francisco bank 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. As of September
30, 1997, Anchor successfully replaced 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 Anchor'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 previously
extended Anchor.
On December 22, 1997, the bank that provided Anchor with the $1,600,000
term loan also provided Anchor with a $250,000 loan to support current working
capital needs of Anchor in relations to Harden's expansion in Portland, Oregon.
The basic terms of said loan were: (a) interest equal to bank's prime rate plus
2.5%; (b) 60 day term; (c) interest only payments through February 15, 1998;
(d) on February 15, 1998, the outstanding balance shall be converted to an
amortizing loan and will be added to Anchor's existing New Loan (discussed
above); and (e) a new loan will be drawn for the combined balances and amortized
over the remaining life of the original commitment with all other terms and
conditions remaining unchanged.
As of March 9, 1998, a new term loan in the amount of $1,821,890.33 was
entered into between Anchor and the bank whereby combining both the $1,600,000
term loan and the $250,000 loan (as described above). The basic terms of said
loan are: (a) interest equal to bank's prime rate plus 2.5%; (b) maturity date
of October 5, 2002; (c) monthly principal payments in installments of $33,125.28
beginning April 5, 1998; and (d) all other terms and conditions of the term loan
dated September 30, 1997 including all amendments thereto and replacements
therefor.
At December 31, 1997, long-term liabilities and long-term debt, less the
current portion discussed above, totaled $1,836,132 (as compared to $922,950 at
December 31, 1996), and primarily consisted of: (a) $1,223,874 representing the
long-term portion outstanding under a $1,600,000 term loan maintained by Anchor
with a regional San Francisco bank and further described above; (b)
approximately $87,800 representing the long-term 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; (c) approximately $307,000
representing deferred rent with regard to certain real property currently leased
by Anchor; (d) $75,000 outstanding under a $250,000 loan maintained by Anchor
with a regional San Francisco bank; and (e) approximately $144,458 for certain
other long-term liabilities. In May 1995, PKW entered into a sublease with
respect to 82% of PKW's prior office space. The sublease expired
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<PAGE>
on September 30, 1997, and was extended by the subtenant through November 30,
1999, the date on which the term of the master lease expires and requires PKW to
provide a multi-year rent subsidy. In December 1995, PKW entered into a sublease
with respect to an additional 10% of PKW's prior office space. The sublease
expires on November 30, 1999, and requires PKW to provide a multi-year rent
subsidy. In October, 1997, PKW entered into a sublease with respect to the
remaining 8% of PKW's prior office space. The sublease expires on November 30,
1999, and requires PKW to provide a multi-year rent subsidy.
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 by:
(a) continuing to develop through its marketing partners 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 acquisitions and merger opportunities and other
business expansion alternatives.
RECENTLY ISSUED ACCOUNTING STATEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement No.
130, "Reporting Comprehensive Income" ("SFAS No. 130"). SFAS No. 130 is
effective for fiscal years beginning after December 15, 1997, and establishes
standards for reporting and displaying of comprehensive income and its
components. SFAS No. 130 is not expected to have a material effect on Anchor's
financial statements when it is adopted during 1998.
In June 1997, the Financial Accounting Standards Board issued Statement
No. 131, "Disclosures About Segments of an Enterprise and Related Information"
("SFAS No. 131"). SFAS No. 131 is effective for fiscal years beginning after
December 15, 1997, and establishes standards for the manner in which public
business enterprises report information about operating segments in interim and
annual financial statements. Under the current accounting policies, Anchor
operates in one business segment. Following the guidelines of the new standard,
operating segments will generally be defined according to the bases used
internally for evaluating segment performance and resource allocation decisions.
SFAS No. 131 will have no effect on Anchor's results of operations or balance
sheets, but management is currently evaluating what, if any, additional
disclosures may be required upon adoption of SFAS No. 131 during the fourth
quarter of 1998.
In February 1998, the Financial Accounting Standards Board issued Statement
No. 132 "Employers' Disclosures About Pensions and Other Postretirement
Benefits" ("SFAS No. 132"). SFAS No. 132 is effective for fiscal years
beginning after December 15, 1997, and standardizes the disclosure requirements
for pensions and other postretirement benefits. SFAS No. 132 will have no
effect on Anchor's results of operations or balance sheets, but management is
currently evaluating what, if any, additional disclosures may be required when
SFAS No. 132 is adopted in 1998.
FORWARD-LOOKING INFORMATION
This Annual Report on Form 10-K contains forward-looking statements within
the meaning of that term under the Private Securities Litigation Reform Act of
1995 (Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934). Additional written or oral forward-looking
statements may be made by Anchor from time to time, in filings with the
Securities and Exchange Commission or otherwise. Statements contained herein
that are not historical facts are forward-looking statements made pursuant to
the safe harbor provisions referenced above. For example, discussions
concerning Anchor's ability to create new products and services, and expansion
of Anchor through internal growth of existing and new products and services, may
involve forward-looking statements. In addition, when used in this discussion,
the words, "anticipates," "expects," "intends," "plans" and variations thereof
and similar expressions are intended to identify forward-looking statements.
16
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Forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified based on current
expectations. Consequently, future events and actual results could differ
materially from those set forth in, contemplated by, or underlying the forward-
looking statements contained in this Annual Report. Statements in this Annual
Report, particularly in the Notes to Financial Statements and "Part II, Item 7,
Management's Discussion and Analysis of Financial Condition and Results of
Operations" describe certain factors, among others, that could contribute to or
cause such differences. Such forward-looking statements involve risks and
uncertainties, and actual results could differ from those described herein.
While the statements represent management's current judgment as to the near-term
future prospects of its business, such risks and uncertainties could cause
actual results to differ from the above statements. Factors which could cause
actual results to differ include the following: Harden's and BRI's relationship
with the new insurance carrier and marketing partners and their ability to
effectively provide third-party administration services; controlling operating
costs; the impact of competitive products, pricing and services; the
availability of capital to finance operations and future expansion; the cyclical
nature of the property and casualty and health insurance markets; and
unanticipated regulatory changes.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The following financial statements for Anchor appear on pages F-1 through
F-21 of this report:
Report of Independent Auditors
Consolidated Balance Sheets as of December 31, 1997 and 1996
Consolidated Statements of Operations for the years ended December 31,
1997, 1996 and 1995
Consolidated Statements of Shareholders' Equity for the years ended
December 31, 1997, 1996 and 1995
Consolidated Statements of Cash Flows for the years ended December 31,
1997, 1996 and 1995
Notes to Consolidated Financial Statements
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information under the headings "Election of Directors" and "Compliance
with Section 16(a) of the Securities Exchange Act of 1934" from the Registrant's
Proxy Statement to be mailed in connection with the Registrant's 1998 Annual
Meeting of Shareholders are hereby incorporated by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information under the headings "Executive Compensation" and "Employment
Agreement with James R. Dunathan" from the Registrant's Proxy Statement to be
mailed in connection with the Registrant's 1998 Annual Meeting of Shareholders
are hereby incorporated by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information under the headings "Principal Shareholders" and "Stock
Ownership Table" from the Registrant's Proxy Statement to be mailed in
connection with the Registrant's 1998 Annual Meeting of Shareholders are hereby
incorporated by reference.
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ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information under the heading "Certain Relationships and Related
Transactions" from the Registrant's Proxy Statement to be mailed in connection
with the Registrant's 1998 Annual Meeting of Shareholders is hereby incorporated
by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) Financial Statements.
--------------------
Report of Independent Auditors
Consolidated Balance Sheets as of December 31, 1997 and 1996
Consolidated Statements of Operations for the years ended December 31,
1997, 1996 and 1995
Consolidated Statements of Shareholders' Equity for the years ended
December 31, 1997, 1996 and 1995
Consolidated Statements of Cash Flows for the years ended December 31,
1997, 1996 and 1995
Notes to Consolidated Financial Statements
(a)(2) Financial Statement Schedules.
-----------------------------
Other schedules are omitted because they are not applicable or the required
information is shown in the financial statements or notes thereto.
(a)(3) Exhibit Index.
-------------
2.1 Amended and Restated Agreement and Plan of Merger dated as of
October 24, 1994, by and between System and Old Anchor, as amended
by that certain Amendment to the Amended and Restated Agreement and
Plan of Merger dated as of December 29, 1994, and Agreement of
Merger attached as an exhibit to the Reorganization Agreement and
certified by the Delaware Secretary of State on January 6, 1995.
Incorporated by reference to Exhibit 2.1 of Anchor's Annual Report
on Form 10-K for the year ended December 31, 1994.
3.1 Restated Certificate of Incorporation. Incorporated by reference to
Exhibit 3.1 of Anchor's Annual Report on Form 10-K for the year
ended December 31, 1994.
3.2 Bylaws. Incorporated by reference to Exhibit 3.2 of Anchor's Annual
Report on Form 10-K for the year ended December 31, 1994.
4.1 Specimen Common Stock Certificate. Incorporated by reference to
Exhibit 4.1 of Anchor's Annual Report on Form 10-K for the year
ended December 31, 1994.
4.2 Specimen Warrant Certificate. Incorporated by reference to Exhibit
4.2 of Anchor's Annual Report on Form 10-K for the year ended
December 31, 1994.
4.3 Warrant Agreement dated as of January 7, 1995, between Anchor and
U.S. Stock Transfer Corporation. Incorporated by reference to
Exhibit 4.3 of Anchor's Annual Report on Form 10-K for the year
ended December 31, 1994.
4.3a Letter dated December 29, 1995, to all stockholders from James R.
Dunathan extending warrants expiration date to January 6, 1997.
Incorporated by reference to Exhibit 4.3a of Anchor's Annual Report
on Form 10-K for the year ended December 31, 1995.
18
<PAGE>
4.4 Form of 10% Convertible Subordinated Debenture. Incorporated by
reference to Exhibit 4.1 of Anchor's Form 10-Q for the quarter
ending March 31, 1995.
4.5 Form of 10% Convertible Subordinated Debenture, Series A.
Incorporated by reference to Exhibit 4.5 of Anchor's Annual Report
on Form 10-K for the year ended December 31, 1995.
4.6 Form of 10% Subordinated Bridge Note. Incorporated by reference to
Exhibit 4.6 of Anchor's Form 10-Q for the quarter ending September
30, 1996.
4.6a Form of Warrant to Purchase Shares of Common Stock of Anchor
Pacific Underwriters, Inc. Incorporated by reference to Exhibit
4.6a of Anchor's Form 10-Q for the quarter ending September 30,
1996.
4.6b Form of Offering to change the terms of the Form of Warrant to
Purchase Shares of Common Stock of Anchor Pacific Underwriters,
Inc., which is incorporated by reference to Exhibit 4.6a, above.
Incorporated by reference to Exhibit 4.6b of Anchor's Annual Report
on Form 10-K for the year ended December 31, 1996.
4.7 Form of Subscription Agreement for the Offer and Sale of Shares of
Common Stock of Anchor Pacific Underwriters, Inc. Incorporated by
reference to Exhibit 4.7 of Anchor's Annual Report on Form 10-K for
the year ended December 31, 1996.
4.7a Form of Warrant to Purchase Shares of Common Stock of Anchor
Pacific Underwriters, Inc. Incorporated by reference to Exhibit
4.7a of Anchor's Annual Report on Form 10-K for the year ended
December 31, 1996.
10.1 1994 Stock Option Plan. Incorporated by reference to Exhibit 10.1
of Anchor's Annual Report on Form 10-K for the year ended December
31, 1994.*
10.2 Lease dated October 29, 1990, as amended on June 10, 1991, April
16, 1994 and September 9, 1994, between Anchor and Societe Generale
(regarding 1800 Sutter Street, Concord, California). Incorporated
by reference to Exhibit 10.2 of Anchor's Annual Report on Form 10-K
for the year ended December 31, 1994.
10.3 Lease dated May 29, 1990, as amended on December 1, 1992, between
PKW and Kaiser Center, Inc. (regarding 300 Lakeside Drive, Oakland,
California). Incorporated by reference to Exhibit 10.3 of Anchor's
Annual Report on Form 10-K for the year ended December 31, 1994.
10.3a Sublease dated May 26, 1995, between PKW and Martin, Ryan &
Andrada, Inc. (regarding 82% of 300 Lakeside Drive, Oakland,
California). Incorporated by reference to Exhibit 10.2 of Anchor's
Form 10-Q for the quarter ending June 30, 1995.
10.3b Sublease dated December 1, 1995, between PKW and Logiciel, Inc.
(regarding 10% of 300 Lakeside Drive, Oakland, California).
Incorporated by reference to Exhibit 10.3b of Anchor's Annual
Report on Form 10-K for the year ended December 31, 1995.
10.4 Lease dated July 3, 1989, as amended on February 10, 1994, between
BRI and Connecticut General Life Insurance Company (regarding 10301
N. 92nd Street, Scottsdale, Arizona). Incorporated by reference to
Exhibit 10.4 of Anchor's Annual Report on Form 10-K for year ended
December 31, 1994.
10.5 Employment Agreement dated August 16, 1994, between Anchor and
James R. Dunathan. Incorporated by reference to Exhibit 10.5 of
Anchor's Annual Report on Form 10-K for the year ended December 31,
1994.*
10.6 Amendment No. 1 to Employment Agreement dated December 19, 1994,
between Anchor and James R. Dunathan. Incorporated by reference to
Exhibit 10.6 of Anchor's Annual Report on Form 10-K for the year
ended December 31, 1994.*
19
<PAGE>
10.6a Employment Agreement dated August 16, 1997, between Anchor and
James R. Dunathan. Incorporated by reference to Exhibit 10.6a of
Anchor's Quarterly Report on Form 10Q for the quarter ended
September 30, 1997.
10.7 Business Loan Agreement dated as of September 27, 1994, between
Anchor and Concord Commercial Bank, and related documents.
Incorporated by reference to Exhibit 10.7 of Anchor's Annual Report
on Form 10-K for the year ended December 31, 1994.
10.8 Business Loan Agreement dated as of September 7, 1994, between PKW
and CivicBank of Commerce, and related documents. Incorporated by
reference to Exhibit 10.8 of Anchor's Annual Report on Form 10-K
for the year ended December 31, 1994.
10.9 Business Loan Agreement dated as of June 17, 1992, between Harden
and Concord Commercial Bank, and related documents. Incorporated by
reference to Exhibit 10.9 of Anchor's Annual Report on Form 10-K
for the year ended December 31, 1994.
10.10 Lease of Personal Property dated April 6, 1994, between BRI and
Winthrop Financial Group, Inc. (regarding computer equipment).
Incorporated by reference to Exhibit 10.10 of Anchor's Annual
Report on Form 10-K for the year ended December 31, 1994.
10.12 Information Management Agreement dated as of May 11, 1993, between
Harden and CMSI, Inc. Incorporated by reference to Exhibit 10.12 of
Anchor's Annual Report on Form 10-K for the year ended December 31,
1994.
10.12a Mutual Release and Settlement Agreement, Promissory Note and UCC-1
Financing Statement dated as of March 25, 1996, between Harden and
BRC (formerly CMSI) of the Information Management Agreement dated
as of May 11, 1993, between Harden and CMSI, which is incorporated
by reference to Exhibit 10.12, above. Incorporated by reference to
Exhibit 10.12a of Anchor's Form 10-Q for the quarter ending March
31, 1996.
10.12b Account Transition Agreement, Promissory Note and UCC-1 Financing
Statement dated as of March 29, 1996, between Harden and BRC
(formerly CMSI) of the Management Agreement dated as of May 11,
1993, between Harden and CMSI, which is incorporated by reference
to Exhibit 10.12, above. Incorporated by reference to Exhibit
10.12b of Anchor's Form 10-Q for the quarter ending March 31, 1996.
10.13 Consulting Agreement dated as of August 1, 1994, between BRI and
Hightrust, Ltd. Incorporated by reference to Exhibit 10.13 of
Anchor's Annual Report on Form 10-K for the year ended December 31,
1994.
10.14 Agreement for Purchase and Sale of Assets dated as of January 18,
1995, between Harden and Dutcher. Incorporated by reference to
Exhibit 10.14 of Anchor's Annual Report on Form 10-K for the year
ended December 31, 1994.
10.15 Amendment to Agreement for Purchase and Sale of Assets dated
February 1, 1995, between Harden and Dutcher. Incorporated by
reference to Exhibit 10.15 of Anchor's Annual Report on Form 10-K
for the year ended December 31, 1994.
10.15a Amendment to Agreement for Purchase and Sale of Assets dated June
10, 1996, between Harden and Dutcher, which is incorporated by
reference to Exhibit 10.15, above. Incorporated by reference to
Exhibit 10.15a of Anchor's Form 10-Q for the quarter ending June
30, 1996.
10.16 Asset Purchase Agreement dated May 17, 1995 between Putnam, Knudsen
& Wieking Inc. Insurance Brokers and Crestview Leasing.
Incorporated by reference to Exhibit 10.1 of Anchor's Form 10-Q for
the quarter ending June 30, 1995.
20
<PAGE>
10.17 Settlement Agreement and Mutual Release dated August 22, 1995
between Anchor and Donald B. Putnam, James P. Wieking, Ronald J.
Marengo, Gary N. Lewis, Edward Wieking and Robert Moser.
Incorporated by reference to Exhibit 10.1 of Anchor's Form 10-Q for
the quarter ending September 30, 1995.*
10.18 Purchase and Sale Agreement dated as of March 1, 1996 between
Anchor and Roland L. Ferguson, doing business as R.L. Ferguson
Insurance Agency. Incorporated by reference to Exhibit 10.18 of
Anchor's Form 10-Q for the quarter ending March 31, 1996.
10.19 Purchase and Sale Agreement dated as of April 1, 1996 between
Anchor and Norman I. Robins. Incorporated by reference to Exhibit
10.19 of Anchor's Form 10-Q for the quarter ending June 30, 1996.
10.20 Purchase and Sale Agreement dated as of May 1, 1996 between Anchor
and PKW and John R. McPherson. Incorporated by reference to Exhibit
10.20 of Anchor's Form 10-Q for the quarter ending June 30, 1996.
10.21 Engagement Letter dated June 27, 1996 between Anchor and Gerbsman
Partners. Incorporated by reference to Exhibit 10.21 of Anchor's
Form 10-Q for the quarter ending June 30, 1996.
10.22 Industrial Real Estate Lease (Multi-Tenant Facility) dated
September 12, 1996 between Palo Cristi Airport II, L.L.C., and BRI.
(Regarding 15721 North Greenway Hayden Loop, Suite 205, Scottsdale,
Arizona) Incorporated by reference to Exhibit 10.22 of Anchor's
Form 10-Q for the quarter ending September 30, 1996.
10.23 Financial Advisory Agreement dated December 17, 1996 between The
Private Financing Group and Anchor Pacific Underwriters, Inc.
Incorporated by reference to Exhibit 10.23 of Anchor's Annual
Report on Form 10-K for the year ended December 31, 1996.
10.24 Business Loan Agreement dated as of July 3, 1997, between Anchor
and Imperial Bank, and related documents. Incorporated by reference
to Exhibit 10.24 of Anchor's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997.
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). Incorporated by
reference to Exhibit 10.25 of Anchor's Quarterly Report on Form 10-
Q for the quarter ended September 30, 1997.
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). Incorporated by reference to Exhibit 10.25a of
Anchor's Quarterly Report on Form 10-
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). Incorporated by
reference to Exhibit 10.26 of Anchor's Quarterly Report on Form 10-
Q for the quarter ended September 30, 1997.
10.27 Business Loan Agreement dated of September 30, 1997, between Anchor
and Imperial Bank, and related documents. Incorporated by reference
to Exhibit 10.27 of Anchor's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997.
10.28 Business Loan Agreement dated December 22, 1997, between Anchor and
Imperial Bank, and related documents.
10.29 Central Plaza Office Lease dated January 6, 1998, between Harden
and Zufu Properties, Co., Ltd. (regarding 3450 Wilshire Boulevard
Tower, Suite 210, Los Angeles, California).
21
<PAGE>
10.30 Business Loan Agreement dated March 9, 1998, between Anchor and
Imperial Bank, and related documents.
11.1 Statement Regarding Computation of Per Share Earnings.
21.1 Subsidiaries of Anchor. Incorporated by reference to Exhibit 21.1
of Anchor's Annual Report on Form 10-K for the year ended December
31, 1994.
27.0 Financial Data Schedule.
All other exhibits are omitted because they are inapplicable.
*Denotes management contract or compensatory plan or arrangement.
(b) Reports of Form 8-K.
None.
22
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
ANCHOR PACIFIC UNDERWRITERS, INC.
(Registrant)
Date: March 23, 1998 By: /s/ James R. Dunathan
-------------------------
James R. Dunathan
President and
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, this report has been signed by the following persons on
behalf of the registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------- -------------------- --------------
<S> <C> <C>
/s/ James R. Dunathan President, March 23, 1998
- ------------------------------- Chief Executive
James R. Dunathan Officer and Director
(Principal Executive Officer)
/s/ Earl Wiklund Chief Financial March 23, 1998
- ---------------- Officer, Secretary
Earl Wiklund and Director
(Principal Financial and
Accounting Officer)
/s/ Audie J. Dudum Chairman, March 23, 1998
- ------------------ Director
Audie J. Dudum
/s/ Steven A. Gonsalves Director March 23, 1998
- -----------------------
Steven A. Gonsalves
/s/Lawrence A. Hayes Director March 23, 1998
- --------------------
Lawrence A. Hayes
/s/ R. William MacCullough Director March 23, 1998
- --------------------------
R. William MacCullough
/s/ Donald B. Putnam Director March 23, 1998
- --------------------
Donald B. Putnam
/s/ Michael R. Sanford Director March 23, 1998
- ----------------------
Michael R. Sanford
s/ Gordon M. Silverstein Director March 23, 1998
- ------------------------
Gordon M. Silverstein
/s/ James P. Wieking Director March 23, 1998
- --------------------
James P. Wieking
</TABLE>
23
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
---------------------------------------------------
CONSOLIDATED FINANCIAL STATEMENTS
---------------------------------
YEAR ENDED DECEMBER 31, 1997
----------------------------
REPORT OF INDEPENDENT AUDITORS............................................. 1
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEET................................................. 2
CONSOLIDATED STATEMENT OF OPERATIONS....................................... 3
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY............................. 4
CONSOLIDATED STATEMENT OF CASH FLOWS....................................... 5
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS................................. 6
<PAGE>
[LETTERHEAD OF ODENBERG, ULLAKKO, MURANISHI & CO.]
March 18, 1998
To the Board of Directors
and Shareholders of
Anchor Pacific Underwriters, Inc.
REPORT OF INDEPENDENT AUDITORS
------------------------------
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations, shareholders' equity and cash flows
present fairly, in all material respects, the financial position of Anchor
Pacific Underwriters, Inc. and its subsidiaries at December 31, 1997 and 1996,
and the results of their operations and their cash flows for the years then
ended, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above. The consolidated financial statements of Anchor Pacific Underwriters,
Inc. and its subsidiaries for the year ended December 31, 1995 were audited by
other auditors whose report dated March 18, 1996 expressed an unqualified
opinion on those statements.
/s/ Odenberg, Ullakko, Muranishi & Co.
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
--------------------------------------------------
CONSOLIDATED BALANCE SHEET
--------------------------
<TABLE>
<CAPTION>
December 31
-----------------------------------
1 9 9 7 1 9 9 6
---------- ----------
A S S E T S
-----------
<S> <C> <C>
Current assets:
Cash and cash equivalents - corporate funds $ 44,384 $ 151,765
Cash and cash equivalents - brokerage fiduciary funds 1,203,594 977,086
Cash and cash equivalents - third party administration fiduciary
funds 3,058,059 3,580,793
Accounts receivable (less allowance for doubtful accounts of
$45,543 and $32,438 in 1997 and 1996, respectively) 1,351,047 1,309,921
Prepaid expenses and other current assets 375,475 244,086
---------- -----------
Total current assets 6,032,559 6,263,651
---------- -----------
Property and equipment, less accumulated depreciation and
amortization 620,511 821,197
---------- -----------
Other assets:
Goodwill, net 1,803,713 1,903,729
Intangible assets, net 1,021,715 1,139,467
Deferred compensation - 257,784
Other 59,667 125,611
---------- -----------
2,885,095 3,426,591
---------- -----------
$9,538,165 $10,511,439
========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
Current liabilities:
Cash and cash equivalents - third party administration fiduciary
funds $3,058,059 $3,580,793
Net premiums payable - insurance companies 2,035,032 2,037,749
Accounts payable 383,299 85,599
Accrued expenses 565,185 352,609
Short-term borrowings - 1,395,000
Current portion of long-term debt 629,133 395,555
Current portion of long-term liabilities 574,083 633,953
---------- ----------
Total current liabilities 7,244,791 8,481,258
---------- ----------
Long-term liabilities, net of current portion 506,944 851,977
---------- ----------
Long-term debt, including $240,000 in 1997 and $220,000 in 1996,
owed to related parties, net of current portion 1,329,188 70,973
---------- ----------
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 and outstanding at
December 31, 1997 and 1996, respectively
93,817 87,256
Additional paid-in capital 4,215,649 3,925,508
Accumulated deficit (3,852,224) (2,905,533)
---------- ----------
457,242 1,107,231
---------- ----------
Commitments and contingencies (Notes 1, 6, 7, 11, and 12) $9,538,165 $10,511,439
========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
--------------------------------------------------
CONSOLIDATED STATEMENT OF OPERATIONS
------------------------------------
<TABLE>
<CAPTION>
Year ended December 31
-------------------------------------------------------------------
<S> <C> <C> <C>
1 9 9 7 1 9 9 6 1 9 9 5
----------- ----------- ----------
Revenues:
Commissions, fees and other income $10,012,964 $ 7,882,828 $8,616,122
Interest income 79,568 111,656 145,156
----------- ----------- ----------
10,092,532 7,994,484 8,761,278
----------- ----------- ----------
Operating expenses:
Salaries, commissions and employee benefits 6,822,508 5,534,549 5,949,035
Selling, general and administrative expenses 3,752,401 3,163,631 3,048,242
--------- ----------- ----------
10,574,909 8,698,180 8,997,277
--------- ----------- ----------
(482,377) (703,696) (235,999)
---------- ----------- -----------
Other income (expense):
Amortization of goodwill and intangible assets (228,635) (380,832) (409,908)
Interest (285,049) (379,071) (161,769)
Other 57,840 64,629 166,667
Nonrecurring merger expenses - - (221,220)
----------- ----------- ----------
(455,844) (695,274) (626,230)
----------- ----------- ----------
Loss before income taxes (938,221) (1,398,970) (862,229)
Provision for income taxes 8,470 6,830 4,800
----------- ----------- ----------
Net loss $ (946,691) $(1,405,800) $ (867,029)
=========== =========== ==========
Basic and diluted loss per common share $(0.21) $(0.37) $(0.23)
=========== =========== ==========
Weighted average number of common shares
outstanding 4,612,153 3,766,176 3,819,605
=========== =========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
--------------------------------------------------
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
----------------------------------------------
<TABLE>
<CAPTION>
Common Stock Additional
----------------------------- Paid-In Accumulated
Shares Amount Capital Deficit Total
-------------- ------------- -------------- ---------------- -------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1994 3,923,258 $78,465 $3,294,702 $ (632,704) $ 2,740,463
Shares issued for warrants
exercised 163 3 486 - 489
Canceled stock:
Acquisition related
adjustment (248,710) (4,974) (305,917) - (310,891)
Fractional shares (210) (4) 4 - -
Net loss - - - (867,029) (867,029)
--------- ------- ---------- ----------- -----------
Balance at December 31, 1995 3,674,501 73,490 2,989,275 (1,499,733) 1,563,032
Shares issued for warrants
exercised 36 1 107 - 108
Convertible 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
Bridge notes exchanged for
stock 50,000 1,000 44,000 - 45,000
Issuance of stock for cash 277,778 5,557 244,443 - 250,000
Canceled stock -
Fractional shares (343) (7) 7 - -
Net loss - - - (946,691) (946,691)
--------- ------- ---------- ----------- -----------
Balance at December 31, 1997 4,690,839 $93,817 $4,215,649 $(3,852,224) $ 457,242
========= ======= ========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
--------------------------------------------------
CONSOLIDATED STATEMENT OF CASH FLOWS
------------------------------------
<TABLE>
<CAPTION>
Year ended December 31
-------------------------------------------------
1 9 9 7 1 9 9 6 1 9 9 5
---------- ----------- ----------
<S> <C> <C> <C>
Operations:
Net loss $ (946,691) $(1,405,800) $ (867,029)
Items not requiring the current use of cash:
Depreciation and amortization 298,183 319,770 295,410
Amortization of goodwill and intangible assets 228,635 380,832 409,908
Changes in items affecting operations:
Cash and cash equivalents - brokerage fiduciary
funds (226,508) 552,438 (206,152)
Accounts receivable (41,126) (54,586) 51,292
Prepaid expenses and other current assets (131,389) 51,451 87,268
Other assets 65,944 (65,589) 83,626
Deferred compensation 257,784 103,560 205,560
Net premiums payable - insurance companies (2,717) (473,234) 254,670
Accounts payable and accrued expenses 510,276 33,407 39,712
Other liabilities (1,820) (229,220) (180,925)
---------- ----------- ----------
Cash provided by (used in) operating activities 10,571 (786,971) 173,340
---------- ----------- ----------
Investments:
Purchases of property and equipment (108,364) (84,035) (394,291)
Purchases of customer lists - (100,000) (63,368)
---------- ----------- ----------
Cash used in investing activities (108,364) (184,035) (457,659)
---------- ----------- ----------
Financing:
Short-term borrowings (repayments) (970,000) 220,000 325,000
Borrowings on long-term debt 1,260,000 225,000 1,482,583
Repayment of long-term debt (148,207) (204,127) (494,997)
Payments on long-term liabilities (403,083) (22,883) (461,467)
Repayment of capital lease obligations - - (46,610)
Issuance of stock 250,000 - -
Common stock - warrants exercised 1,702 - 489
---------- ----------- ----------
Cash provided by (used for) financing activities (9,588) 217,990 804,998
---------- ----------- ----------
Increase (decrease) in cash and cash equivalents (107,381) (753,016) 520,679
Cash and cash equivalents - corporate funds:
Beginning of period 151,765 904,781 384,102
---------- ----------- ----------
End of period $ 44,384 $ 151,765 $ 904,781
========== =========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC. AND SUBSIDIARIES
--------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
NOTE 1 - NATURE OF BUSINESS
ORGANIZATION
Anchor Pacific Underwriters, Inc. ("Anchor"or "Company") is a holding company
that provides insurance administration and property and casualty brokerage
services through its three direct and indirect subsidiaries. Administration
services are provided to employer groups of varying sizes, primarily located in
California and Arizona. Anchor also operates a property and casualty insurance
agency which services customers located primarily in the greater San Francisco
Bay Area. Anchor derived 28% of its revenue from administration services for
clients underwritten by one insurance company.
The consolidated financial statements include the accounts of Anchor and its
wholly-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated in consolidation.
BASIS OF PRESENTATION
The financial statements have been prepared on the going concern basis. The
Company has reported a net loss during the past three years. The decrease in
net loss from 1996 to 1997 relates primarily to an increase in fee income as the
result of new business generated from projects associated with new insurance
carriers and marketing partners within the third-party administration division
and administrative fees generated from the release of new products.
On July 1, 1997, Harden & Company's ("Harden") primary insurance carrier
purchased a significant volume of business from an insurance carrier in Los
Angeles, California. The new insurance carrier then entered into a contract
with Harden to provide third-party administration services to this business.
Fees from Anchor's third-party administration services for 1997 increased 54.1%
over the fees for 1996, in large part due to new business generated from the
contract with the Los Angeles carrier. In addition, effective January 1, 1998,
Harden assumed a significant volume of administration business from an insurance
carrier in Portland, Oregon.
Management's plan to achieve profitability includes a strategy to expand its
third-party administration services and property and casualty 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,
services, and marketing partner relationships; 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.
<PAGE>
RECAPITALIZATION AND RESTATEMENT
On January 6, 1995, Anchor merged with System Industries, Inc. ("System"),
previously a dormant, publicly traded shell corporation. As a result of the
merger, Anchor became a public company. For accounting purposes, the merger has
been treated as a recapitalization of Anchor with Anchor as the acquirer. 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
common stock expired January 6, 1997, and unissued warrants to purchase 195,789
shares of common stock will expire one year after their issuance.
Costs incurred in conjunction with the merger, totaling $221,220 in 1995, were
expensed. There were no merger related costs incurred in 1996 or 1997.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
USE OF ESTIMATES
The preparation of financial statements requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
REVENUE RECOGNITION
The majority of revenue from third-party administration services consists of
fees charged for the administration of fully insured and self-insured group
health plans. Fee income is recognized at the time employers remit monthly
premiums and when services are rendered. Anchor derived 69%, 57%, and 59% of its
revenues in 1997, 1996, and 1995, respectively, from its third-party
administration activities.
Insurance brokerage revenue consists principally of insurance commissions (net
of split or shared commissions), fees in lieu of commissions for insurance
placement services and interest income on fiduciary and corporate funds.
insurance commissions and fees in lieu of commissions for insurance placement
services are recognized when coverage becomes effective, the premium due under
the policy is known or can be reasonably estimated, and substantially all
required services related to placing the insurance have been provided.
Broker commission adjustments and commissions on premiums billed directly by
underwriters are recognized principally when such amounts can be reasonably
estimated.
In addition, Anchor receives annual contingency commissions from various
property and casualty insurance carriers. The commissions are based upon the
carrier's loss experience as well as the number of policies placed. Revenue
from contingency commissions is recognized when received. Fee income for
services other than placement of insurance coverages is recognized as those
services are provided. Anchor derived 31%, 43%, and 41% of its revenues in 1997,
1996, and 1995, respectively, from its insurance brokerage activities.
<PAGE>
EXPENSE RECOGNITION
All costs are expensed as incurred.
CASH AND CASH EQUIVALENTS
Anchor considers all highly liquid investments with a maturity of three months
or less at the date of acquisition to be cash equivalents.
FIDUCIARY FUNDS AND LIABILITIES
Funds held for self-funded employers, fully insured programs and unremitted
insurance premiums are held in a fiduciary capacity.
Interest earned on certain fiduciary funds is included in Anchor's earnings.
Interest income on fiduciary funds amounted to $75,094, $97,591, and $138,051 in
1997, 1996, and 1995, respectively.
CONCENTRATION OF CREDIT RISK
Cash and cash equivalents are on deposit in approximately 164 separate accounts
with certain accounts exceeding $100,000. The FDIC insures accounts up to
$100,000 each. If several accounts are maintained for the same entity at the
same bank, the FDIC applies the $100,000 limit to the combined group. The
accounts are maintained in well-established regional and national commercial
banks. These banks have satisfied the FDIC'S more stringent capitalization
requirements, qualifying them to accept broker deposits. The banks have
received high ratings from bank rating services. As a result, credit risk is
deemed to be minimal.
ACCOUNTS RECEIVABLE
Anchor provides for future estimated credit losses based on an evaluation of a
current aging of the accounts, current economic conditions and other factors
necessary to provide for losses that can be reasonably anticipated.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying values of financial instruments such as cash and cash equivalents,
fiduciary funds, and debt obligations approximate their fair market value.
The following methods and assumptions were used by the Company in estimating its
fair value disclosures for financial instruments:
Cash and cash equivalents: The carrying amounts reported in the balance sheet
for cash and short-term instruments approximate those assets' fair values.
<PAGE>
Short-term borrowings: The carrying amounts on the lines of credits and other
short-term borrowings approximate their fair values.
Long-term borrowings: The fair values of Anchor's long-term borrowings are
estimated using discounted cash flow analyses, based on the current incremental
borrowing rates for similar types of borrowing arrangements.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation and amortization are
computed using the straight-line method over the estimated useful lives of the
assets, which range from three to ten years.
Software costs relating to the upgrading and enhancing of existing programs are
capitalized and amortized over a period of five years.
GOODWILL AND INTANGIBLE ASSETS
Goodwill represents the excess of the cost of acquisitions over the fair value
of net assets acquired. Intangible assets relate to covenants not to compete,
customer lists and other contractual rights acquired in acquisitions. Goodwill
is amortized on the straight-line basis over 10 to 25 years. Covenants not to
compete and customer lists are amortized on the straight-line basis over 5 to 13
years.
Impairment of goodwill and intangible assets is measured on the basis of
anticipated undiscounted cash flows for each asset. Based upon the Company's
analysis, no impairment of such assets was indicated for the years ended
December 31, 1997, 1996, or 1995.
INCOME TAXES
Anchor and its subsidiaries file a consolidated federal income tax return and
combined returns for state franchise tax purposes.
LOSS PER SHARE
In 1997, Anchor adopted Statement of Financial Accounting Standard No. 128,
"Earnings Per Share." This standard requires that both basic earnings or loss
per share and diluted earnings or loss per share be presented. All prior period
per share amounts have been restated, following the new standard requirements.
Diluted loss per share excludes the effect of convertible debt, stock options,
and warrants (See Notes 7, 10 and 12), because their effect would have been
antidilutive.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement No. 130,
"Reporting Comprehensive Income" ("SFAS No. 130"). SFAS No. 130 is effective
for fiscal years beginning after December 15, 1997 and establishes standards for
reporting and displaying of comprehensive income and its components. SFAS No.
130 is not expected to have a material effect on Anchor's financial statements
when the statement is adopted during 1998.
<PAGE>
In June 1997, the Financial Accounting Standards Board Issued Statement No. 131,
"Disclosures About Segments of an Enterprise and Related Information" ("SFAS No.
131"). SFAS No. 131 is effective for fiscal years beginning after December 15,
1997 and establishes standards for the manner in which public business
enterprises report information about operating segments in interim and annual
financial statements. Under the current accounting policies, Anchor operates in
one business segment. Following the guidelines of the new standard, operating
segments will generally be defined according to the bases used internally for
evaluating segment performance and resource allocation decisions. SFAS No. 131
will have no effect on anchor's results of operations or balance sheets, but
management is currently evaluating what, if any, additional disclosures may be
required upon adoption of SFAS No. 131 during the fourth quarter of 1998.
In February 1998, the Financial Accounting Standards Board issued Statement No.
132 "Employers' Disclosures About Pensions and Other Postretirement Benefits"
("SFAS No. 132"). SFAS No. 132 is effective for fiscal years beginning after
December 15, 1997 and standardizes the disclosure requirements for pensions and
other postretirement benefits. SFAS No. 132 will have no effect on Anchor's
results of operations or balance sheets, but management is currently evaluating
what, if any, additional disclosures may be required when SFAS No. 132 is
adopted in 1998.
RECLASSIFICATIONS
Certain prior years' balances have been reclassified to conform with the current
year presentation.
NOTE 3 - PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
<TABLE>
<CAPTION>
December 31
-------------------------------------------
1997 1996
--------------------- --------------------
<S> <C> <C>
Leasehold improvements $ 47,376 $ 47,376
Furniture and equipment 868,769 818,800
Office equipment 703,149 694,865
Computer equipment 589,718 539,607
Computer software 875,849 875,849
---------- ----------
3,084,861 2,976,497
Less - accumulated depreciation and amortization 2,464,350 2,155,300
---------- ----------
$ 620,511 $ 821,197
========== ==========
</TABLE>
The foregoing assets are pledged as security for certain indebtedness (See Note
7).
<PAGE>
NOTE 4 - GOODWILL AND INTANGIBLE ASSETS
Goodwill and intangible assets consist of the following:
<TABLE>
<CAPTION>
December 31 Amortization
-------------------------------------------
1997 1996 Period
------------------- ---------------------- -------------------
<S> <C> <C> <C>
Goodwill $3,042,924 $3,052,828 10 - 25 years
Less - accumulated amortization 1,239,211 1,149,099
---------- ----------
$1,803,713 $1,903,729
========== ==========
Covenants not to compete $ 285,100 $ 285,100 5 - 7 years
Customer lists 2,121,730 2,121,730 5 - 13 years
---------- ----------
2,406,830 2,406,830
Less - accumulated amortization 1,385,115 1,267,363
---------- ----------
$1,021,715 $1,139,467
========== ==========
</TABLE>
The foregoing assets are pledged as security for certain indebtedness (See Note
7).
NOTE 5 - SHORT-TERM BORROWINGS
In December 1997, Anchor obtained a $250,000 line of bank credit expiring in
February 1998. Borrowings under the line of credit amounted to $75,000 at
December 31, 1997 with annual interest at the bank's prime rate plus 2.5%
(10.75% at December 31, 1997). In March 1998, borrowings under the line of
credit were combined with a term loan with the bank (See Note 7). As a result,
borrowings under the line of credit at December 31, 1997 were included in long-
term debt.
Anchor had outstanding borrowings under two lines of bank credit totaling
$1,395,000 at December 31, 1996. These borrowings were repaid or converted to a
term loan in 1997 (See Note 7).
NOTE 6 - OTHER LONG-TERM LIABILITIES
Other long-term liabilities primarily consist of future contingent payments
relating to contractual agreements negotiated with the previous owners of
businesses acquired, deferred rent and other liabilities. The future contingent
payments are generally based upon the amount of net commission income generated
from the books of business acquired.
At December 31, 1997, future payments of these liabilities are as follows:
<TABLE>
<CAPTION>
Year
----
<S> <C>
1998 $ 574,083
1999 153,592
2000 99,980
2001 78,638
2002 69,038
Thereafter 105,696
----------
1,081,027
Less - current portion 574,083
----------
$ 506,944
==========
</TABLE>
<PAGE>
NOTE 7 - LONG-TERM DEBT
Long-term debt is summarized as follows:
<TABLE>
<CAPTION>
December 31
---------------------------
1997 1996
-------------- -----------
<S> <C> <C>
Term bank loan - with interest at prime rate plus 2.5%
(11.0% at December 31, 1997) $1,573,333
Line of bank credit - with interset at prime rate plus
2.5% (11.0% at December 31, 1997) 75,000
10% Subordinated bridge notes, maturing in 1998 180,000 $225,000
10% Convertable subordinated debentures, maturing in 1998
60,000 100,000
Equipment loans - with annual interest at 8.25%, maturing
In 1998 to 2000 69,988 141,528
---------- --------
1,958,321 466,528
Less - current portion 629,133 395,555
---------- --------
$1,329,188 $ 70,973
========== ========
</TABLE>
In October 1997, Anchor obtained a $1.6 million term bank loan. The loan bears
interest at the bank's prime rate plus 2.5% and is payable in monthly principal
installments of $26,667 plus interest over a five-year period. The principal
payments may be reduced if anchor's cash flow (as defined) is not sufficient to
make the principal payments. In connection with obtaining the loan, Anchor
issued to the lender a warrant to purchase 95,000 shares of its common stock at
$1.75 per share until october 2002. The proceeds of the loan were used to repay
existing borrowings under Anchor's lines of bank credit (See Note 5).
In December 1997, the term loan lender provided Anchor with a $250,000 line of
credit which expired in February 1998. Borrowings under the line of credit
amounted to $75,000 at December 31, 1997 with interest at the bank's prime rate
plus 2.5%.
In early March 1998, the bank combined the outstanding balances of the term loan
and line of credit into a new $1.82 million term loan. The term loan is secured
by certain receivables, property and equipment, and other assets. The new loan
bears interest at the bank's prime rate plus 2.5% and is payable in monthly
principal installments of $33,125 plus interest through October 2002. The
principal repayments may be reduced if Anchor's cash flow (as defined) is not
sufficient to make the principal payments. The loan agreements with the bank
contain certain restrictive covenants which, among other things, require Anchor
to maintain certain levels of net worth and cash flow (as defined), and
prohibits the payment of dividends.
During 1997, bridge notes totaling $45,000 were converted into 50,000 shares of
Anchor's common stock at $.90 per share and the maturity dates of the remaining
notes were extended to various dates in 1998.
<PAGE>
During 1996, convertible subordinated debentures totaling $870,000 were
converted into 644,444 shares of Anchor's common stock at $1.35 per share.
During 1997, $40,000 of the debentures were repaid by Anchor, and the maturity
dates of the remaining debentures were extended to various dates in 1998. The
remaining debentures may be converted into common stock at $1.35 per share.
Scheduled principal payments due on long-term debt after December 31, 1997 are
as follows:
<TABLE>
<CAPTION>
Year
----
<S> <C>
1998 $ 629,133
1999 426,821
2000 400,494
2001 397,500
2002 104,373
----------
1,958,321
Less - current portion 629,133
----------
$1,329,188
==========
</TABLE>
NOTE 8 - INCOME TAXES
The provision for income taxes is as follows:
<TABLE>
<CAPTION>
Year ended December 31
-----------------------------------------
1997 1996 1995
------------- ------------ ------------
<S> <C> <C> <C>
Current tax expense - state $8,470 $6,830 $4,800
====== ====== ======
</TABLE>
Deferred income taxes are provided for the temporary differences between the
financial reporting and tax bases of Anchor's assets and liabilities. Valuation
allowances are established when necessary to reduce deferred tax assets to the
amount expected to be realized.
Deferred tax liabilities and assets are comprised of the following:
<TABLE>
<CAPTION>
December 31
-------------------------------------
1997 1996
------------------ -----------------
<S> <C> <C>
Deferred tax liabilities:
Depreciation and amortization $ 195,862 $ 210,416
Rent - 8,088
----------- -----------
195,862 218,504
----------- -----------
Deferred tax assets:
Vacation pay 94,969 67,525
Sublease liability 120,897 160,469
Tax credits 41,188 41,188
Other 74,805 69,300
Net operating loss carryforward 1,250,760 989,556
----------- -----------
1,582,619 1,328,038
Valuation allowance for deferred tax assets (1,386,757) (1,109,534)
----------- -----------
Net deferred tax asset 195,862 218,504
----------- -----------
$ - $ -
=========== ===========
</TABLE>
<PAGE>
At December 31, 1997 and 1996, deferred tax liabilities are noncurrent. At
December 31, 1997 and 1996, current deferred tax assets are $30,980 and $34,316,
respectively, and noncurrent deferred tax assets are $164,902 and $184,188,
respectively.
The change in the valuation allowance is comprised of the following items:
<TABLE>
<CAPTION>
Year ended December 31
-----------------------------------
1997 1996
----------------- ----------------
<S> <C> <C>
Increase due to net operating losses $286,123 $ 469,921
Change in estimate of temporary differences for fixed and
intangible assets, sublease liability, deferred rent,
vacation pay and other (8,900) (192,470)
-------- ---------
Net increase $277,223 $ 277,451
======== =========
</TABLE>
At December 31, 1997, $130,000 of the valuation allowance related to
acquisitions. When realized, the tax benefit will be accounted for as a
reduction of goodwill.
A reconciliation of income tax computed at the federal statutory corporate tax
rate to the provision for income taxes follows:
<TABLE>
<CAPTION>
Year ended December 31
------------------------------------------------------------------------
1997 1996 1995
------------------------------------------------------------------------
Amount Percent Amount Percent Amount Percent
------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Income taxes at federal statutory rate $(318,995) (34.0)% $(475,649) (34.0)% $(294,790) (34.0)%
Increase (decrease) in income taxes
resulting from:
State and local income taxes, net of
federal tax benefit (56,293) (6.0) (83,938) (6.0) (51,559) (6.0)
Amortization of goodwill and other
intangibles 78,538 8.3 79,949 5.7 100,817 11.6
Employee benefits 10,627 1.1 9,717 0.7 11,388 1.3
Purchase accounting - - - - (259,792) (30.0)
State minimum tax 8,470 0.9 6,830 0.5 4,800 0.6
Net operating loss 286,123 30.6 469,921 33.6 493,936 57.1
------------------------------------------------------------------------
$ 8,470 0.9% $ 6,830 0.5% $ 4,800 0.6%
========================================================================
</TABLE>
At December 31, 1997, Anchor had federal and state net operating loss
carryforwards of approximately $3,388,000 and $1,728,000, respectively. The
federal and state net operating losses will begin to expire in the years ending
December 31, 2003 and 1998, respectively.
At December 31, 1997, Anchor had federal general business credits of $25,104.
The general business credits expire in the years ending December 31, 1997 to
December 31, 2000. At December 31, 1997, Anchor had state tax credits of
$16,084. The state tax credits may be carried forward indefinitely.
<PAGE>
As discussed in Note 1, Anchor consummated a merger with System Industries,
Inc., resulting in shares of Anchor being issued. Federal and state tax laws
impose limitations on the use of the net operating losses and tax credits
following certain changes in ownership. If such an ownership change has
occurred, the limitation would reduce the amount of the benefit of the net
operating losses and general business credits that would be available to offset
future taxable income starting in the year of the ownership change.
NOTE 9 - RETIREMENT AND EMPLOYEE BENEFIT PLANS
Anchor has a 401(k) profit sharing plan to which eligible employees may
contribute up to 15% of their salaries, or a maximum of $9,500 as deferred
compensation. The plan also provides for voluntary employer contributions
whereby Anchor may match 50% of the employee contribution up to a maximum of 3%
of the employee's gross salary. Anchor made no contributions to the plan during
the years ended December 31, 1997, 1996, and 1995.
In addition, Anchor offers active eligible employees certain life, health,
vision and dental benefits. There are several plans which differ in amounts of
coverage and deductibles. Anchor does not extend such benefits to retirees.
NOTE 10 - STOCK OPTION PLAN
On December 5, 1994, the Board of Directors of Anchor adopted the Anchor Pacific
Underwriters, Inc. 1994 Stock Option Plan (the "1994 Plan"). The aggregate
number of shares that are available for issuance pursuant to the exercise of
options granted under the 1994 Plan may not exceed 700,000 shares of common
stock. Options granted to members of the Board of Directors in 1995 vested
immediately upon grant. Other options granted in 1995 generally vested after
one year. Options granted in 1996 and 1997 generally vest over a four-year
period, with 25% vesting each year, with the exception of 50,000 options granted
to a member of the Board of Directors in 1997, which vested immediately upon
grant. The options are priced at fair market value of the stock at the date of
grant, except for shareholders of more than 10% of Anchor, in which case the
options are priced at 110% of the market price at the date of grant. Options
generally have a ten-year life.
Anchor applies the provisions of Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" ("APB 25") to its stock option plan.
Accordingly, no compensation cost has been recognized for the plan for the years
ended December 31, 1997, 1996 and 1995.
Had Anchor adopted Financial Accounting Standards Board Statement No. 123,
"Accounting for Stock-Based Compensation" ("SFAS No. 123"), the net loss of
$946,691 as reported for the year ended December 31, 1997 would compare to a pro
forma net loss of $968,462, and the net loss of $1,405,800 as reported for the
year ended December 31, 1996 would compare to a pro forma loss of $1,441,189.
Basic and diluted loss per share of $.21 as reported for the year ended December
31, 1997 would not change on a pro forma basis; for the year ended December 31,
1996, the reported basic and diluted loss per share of $.37 would compare to a
pro forma basic and diluted loss per share of $.38; and for the year ended
December 31, 1995, the reported basic and diluted loss per share of $.23 would
compare to a pro forma basic and diluted loss per share of $.29.
The effects of applying SFAS No. 123 in the preceding pro forma disclosure are
not indicative of the effect on reported net income for future years. SFAS No.
123 does not apply to awards granted prior to 1995.
<PAGE>
The fair value of each option grant is estimated on the date of grant using the
Black-Scholes option-pricing model with the following weighted-average
assumptions used for grants in 1997 and 1996, respectively: expected volatility
of approximately 25% for both years, risk-free interest rates of 6.5% for both
years, and expected lives of 6.3 and 5.8 years. No dividend yield was used as
Anchor has not paid dividends in the past and does not anticipate paying
dividends in the future. As Anchor's common stock does not have an adequate
length of time of being publicly traded, a public entity with similar lines of
business was used to estimate expected volatility.
A summary of the status of Anchor's stock option plan as of December 31, 1997
and 1996, and changes during the years then ended is presented below:
<TABLE>
<CAPTION>
1997 1996
-------------------------------- -------------------------------
Weighted Weighted
Average Average
Number Exercise Number Exercise
of Shares Price of Shares Price
--------------- --------------- ---------------- -------------
<S> <C> <C> <C> <C>
Outstanding at beginning of year 557,350 $1.52 505,250 $1.52
Granted 112,400 $ .91 62,200 $1.54
Canceled or expired (38,400) $1.58 (10,100) $1.50
------- ----- ------- -----
Outstanding at end of year 631,350 $1.41 557,350 $1.52
======= ===== ======= =====
Options exercisable at year end 541,450 494,400
Weighted average grant-date fair value of
options granted during the year whose
exercise price equaled market price on
date of grant $ .34 $ .58
Weighted average grant-date fair value of
options granted during the year whose
exercise price exceeded market price on
date of grant $ .32 $ .59
</TABLE>
The following table summarizes information about stock options outstanding at
December 31, 1997:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
- ------------------------------------------------------------------ -------------------------------
Range Weighted Average Weighted Weighted
of Remaining Average Average
Exercise Number Contractual Exercise Number Exercise
Prices Outstanding Life Price Exercisable Price
- --------------- --------------- ----------------- ------------- --------------- ------------
<S> <C> <C> <C> <C> <C>
$ .90-$1.00 112,400 9.6 years $.91 50,000 $.90
$1.45-$1.65 517,950 7.6 years $1.52 490,950 $1.52
$2.19 1,000 7.6 years $2.19 500 $2.19
- ------------ ------- --------- ----- ------- -----
$ .90-$2.19 631,350 8.0 years $1.41 541,450 $1.46
============ ======= ========= ===== ======= =====
</TABLE>
<PAGE>
NOTE 11 - LEASES:
Anchor rents its office facilities in Concord, California under an operating
lease which expires in 2004. The terms of the lease include a 12-month rent
deferral and fixed rental escalation. The total rent for the lease term which
reflects the 12-month deferral and the escalation is being amortized on the
straight-line basis over the full term of the lease, resulting in deferred rent
liability of approximately $306,923 and $286,000 at December 31, 1997 and 1996,
respectively. The deferred rent liability is included in long-term liabilities
in the accompanying balance sheet.
In connection with a business acquisition in October 1994, Anchor assumed the
lease obligation for certain facilities in Oakland, California. Anchor has
subleased the facilities to two tenants. The subleases will remain in effect
until Anchor's lease obligation expires in 1999.
Anchor also leases office facilities in Southern California and Arizona. Such
leases expire during the period from August 1998 through May 2002.
The consolidated statement of operations includes rent expense of $757,666,
$683,591, and $623,563 reflected in selling, general and administrative expenses
for the years ended December 31, 1997, 1996, and 1995, respectively.
Future minimum annual lease payments under operating leases as of December 31,
1997, exclusive of net amounts owed under the Oakland lease which are disclosed
in the schedule of payments under long-term liabilities in Note 6, are as
follows:
<TABLE>
<CAPTION>
Year
----
<S> <C>
1998 $ 771,590
1999 720,535
2000 787,080
2001 775,438
2002 716,664
Thereafter 1,179,633
----------
$4,950,940
==========
</TABLE>
NOTE 12 - COMMITMENTS AND CONTINGENCIES
Anchor is subject to certain legal proceedings and claims arising in connection
with the normal 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.
Anchor had warrants outstanding to purchase 714,562 shares of its common stock
at prices ranging from $.90 to $3.00 per share. The warrants expire during the
period from August 2001 to October 2002.
NOTE 13 - RELATED PARTY TRANSACTIONS
Anchor is contingently liable on certain bank loans made to three of its
shareholders. The amounts outstanding on these loans total approximately
$107,708 at December 31, 1997 and the loans mature at various dates from March
1998 to June 2002.
<PAGE>
In 1995, 10% convertible subordinated debentures totaling $790,000 were sold to
seven members of the Board of Directors and three shareholders. Total interest
incurred and accrued for these debentures was $6,849 and $78,340 for the years
ended December 31, 1997 and 1996, respectively. As of December 31, 1997, two
Board members had not converted their debentures (which total $60,000) to
equity. This liability is classified under the current portion of long-term
debt. All other Board members and shareholders have converted their debentures
to equity (See Note 7).
Subordinated bridge notes totaling $170,000 and $10,000 were sold in 1997 and
1996, respectively, to five members of the Board of Directors and two
shareholders (See Note 7). Total interest incurred and accrued for these bridge
notes was approximately $18,000 and $6,000 for the years ending December 31,
1997 and 1996, respectively. This liability is classified under the current
portion of long-term debt.
NOTE 14 - CASH FLOW DISCLOSURES:
<TABLE>
<CAPTION>
Supplemental cash flow information:
Cash paid during the period for:
<S> <C> <C> <C>
Interest $285,049 $379,071 $161,769
======== ======== ========
Income taxes $ 8,526 $ 6,830 $ 5,600
======== ======== ========
Supplemental schedule of noncash investing and financing
activities:
Bridge notes exchanged for common stock $ 45,000 $ - $ -
======== ======== =========
Convertible debentures exchanged for common stock $ - $870,000 $ -
======== ======== =========
Increase in intangible assets and common stock related
to purchase of customer lists $ - $176,999 $ -
======== ======== =========
Decrease in goodwill and intangible assets related to
adjustment in deferred taxes $ - $111,322 $ -
======== ======== =========
Increase in goodwill related to adjustment of sublease
liability $ - $ - $104,542
======== ======== =========
Decrease in goodwill related to cancellation of stock
issued for PKW merger $ - $ - $310,890
======== ======== =========
Increase in intangible assets and note payable related
to the purchase of customer lists $ - $ - $140,395
======== ======== =========
</TABLE>
<PAGE>
Exhibit 10.28
[LOGO OF IMPERIAL BANK]
NOTE
$ 250,000.00 WALNUT CREEK, California, DECEMBER 22, 1997
On FEBRUARY 15, 1998*, 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
$250,000.00 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 2.50% 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 [_] in addition to principal [_] beginning JANUARY 15, 1998, 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. [_] (If checked), Principal shall be payable in installments
of $ or more, each installment on the day of each ,
beginning. 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 court 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 part 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.
*THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE CREDIT TERMS AND
CONDITIONS AGREEMENT DATED SEPTEMBER 30, 1997 AND ALL AMENDMENTS THERETO AND
REPLACEMENTS THEREFOR. SEE ATTACHED ADDENDUM.
Anchor Pacific Underwriters, Inc.
- --------------------------------- -------------------------------------
By: /s/ J.R. Dunathan
- --------------------------------- -------------------------------------
- --------------------------------- -------------------------------------
<PAGE>
ADDENDUM TO NOTE
Dated December 22, 1997
Anchor Pacific Underwriters, Inc.
This facility will be interest only through February 15, 1998. On said date, the
outstanding balance under the Note shall be converted to an amortizing loan and
will be added to the company's existing term loan pursuant to the Note dated
September 30, 1997. A new note will be drawn for the combined balances and
amortized over the remaining life of the original commitment with all other
terms and conditions remaining unchanged. All principal and accrued but unpaid
interest shall in any event be due and payable on October 5, 2002.
Anchor Pacific Underwriters, Inc.
By: /s/ J.R. Dunathan
---------------------------------
<PAGE>
Exhibit 10.29
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> <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
</TABLE>
ADDENDUM
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 THIS DOCUMENT FOR EXAMINATION AND NEGOTIATION DOES NOT
CONSTITUTE AN OFFER TO LEASE, OR A RESERVATION OF, OR OPTION FOR, THE PREMISES:
THIS DOCUMENT BECOMES EFFECTIVE AND BINDING 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 January 6, 1998 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: 3450 Wilshire Boulevard Tower, Suite 210 located on the
2nd 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 4,446 square feet.
C. Term: Twelve (12) months commencing April 1, 1998 and expiring
March 31, 1999. Scheduled term Commencement Date April 1, 1998 (subject to
Article III hereof).
1.02 Rent
----
A. Basic Rent to be paid as follows: months one (1) through twelve
(12) - Six Thousand Forty-Five and 60/100ths Dollars ($6,045.60) per month.
(The Basic Rent shall be subject to increases pursuant to Article IV hereof).
B. Intentionally omitted.
C. Tenant's Proportionate Share: (0.640%). (Subject to Section
4.02(E) hereof).
D. Expenses-Calendar Base Year 1998 Tax Base Year 1998-1999.
(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 Annual Rent for the 1st
month after the Commencement Date of the term of the 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 Six Thousand
Forty-Five and 60/100ths Dollars ($6,045.60) 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 the 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 the 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 notice 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. The 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 this 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 acknowledgement of the Commencement
Date as specified in the Statement; (iii) Tenant's acknowledgement of the
termination date as specified in the Statement; (iv) Tenant's acknowledgement of
the Rentable Area of the Premises as specified in the Statement; (v) Tenant's
acknowledgement 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 hereof, 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 improvement
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; (e) 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 this transaction or any
other 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, taxes, 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. Expenses/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
bases 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 on
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 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.
4.03 Basic Rental Adjustment (CPI). Intentionally omitted.
----------------------------
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 the 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
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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 the 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 the 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 the
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 the 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 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 interests hereunder) at the expiration of the 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 State 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 the
Lease, and shall be surrendered to Landlord in good condition upon expiration of
the Term or termination of the 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 to the Premises 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. 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 Tenant's 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 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 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 the
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 the Lease in the event of
such failure.
7.09 Substitution of Premises. At any time after the execution and delivery
------------------------
of the 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 the 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 the 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 by not limited to, electricity, or (ii) meters to measure such utility
resource consumption by two (2) or more tenants, the pro rata 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
though 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 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 the Lease, in compliance with Landlord's signage 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 the 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.
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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 the 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 worker's 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
-----------------------
tenant's sole cost and expense any automated and/or non-automated security
system in, 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 Three Million Dollars
($3,000,000.00). 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, as
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 cause 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 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 a 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 to 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 of 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 the 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 this 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 the 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 provisions 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 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 Relet. 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 relet the Premises.
All cost incurred in such entry and reletting 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 the
Landlord from later terminating the 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
----------
hereof 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 lienor 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 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 the 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: Mr. Earl Wiklund
Harden & Company, Inc.
3450 Wilshire Boulevard, Ste. 210
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
the 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 the 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
attorneys' 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 this 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 this provision void and the other of
which would render this 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 named 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 Obligations. 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: Whenever 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
--------
the 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 corporation a California 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: 1-28-98 Dated: 1-23-98
------- -------
Federal Tax I.D. Number:
94-2311657
----------
28
<PAGE>
A D D E N D U M
Addendum to that certain Office Lease (the "Lease"") dated January 6, 1998 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 210 (the
"Premises"), consisting of approximately 4,446 rentable square feet located on
the 2nd floor of the 3450 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.
2. PARKING: Notwithstanding anything to the contrary contained within
--------
Exhibit "F" of this Lease, in the first paragraph the following shall replace
what is crossed out -- "throughout the term of this Lease, Tenant shall lease
nineteen (19) rooftop, unreserved and four (4) covered, unreserved parking
spaces in Landlord's parking structure at a 25% discount off the rates generally
posted or quoted to the general public, as such rates may be changed from time
to time by Landlord or its agents. These parking rates have been added to the
monthly Base Rent. Landlord reserves the right to disclose in the rent
statement the separation of payment for Base Rent and Parking. Landlord will
draft a side letter pertaining to increases in the parking rates that will be
included into the Base Rent when and if such rates increase during the term of
this Lease. The parking rights provided in this section are non-assignable.
Any parking spaces leased by Tenant are for the exclusive use of Tenant's
officers and employees and any such parking spaces leased by Tenant shall not be
sublet."
3. 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 to this Lease as shall be reasonably requested by Landlord's
lender, provided that any such modification does not materially change any of
the terms of this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this 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 corporation a California 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: 1-28-98 Dated: 1-23-98
<PAGE>
EXHIBIT "A"
FLOOR 2 PLAN
Central Plaza
3450 Wilshire Blvd.
<PAGE>
EXHIBIT "B"
SITE PLAN
<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 the 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 ($_________ ) per month less the "Base Rent Concession"
described in Paragraph 1 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")
/s/ Earl Wiklund
__________________________ __________________________
By: Donna L. Dalton By:
Its: Senior Vice President Its: Chief Executive Officer
-----------------------
Dated: Dated: 1-23-98
----------- --------------
<PAGE>
EXHIBIT "D"
LANDLORD'S WORK LETTER
BUILDING STANDARD INPROVEMENTS
Central Plaza
3440-50-60-70 Wilshire Boulevard
Los Angeles, California 90010
Intentionally omitted.
<PAGE>
EXHIBIT "D.1"
BUILDING STANDARD
CENTRAL PLAZA
3440-50-60-70 Wilshire Boulevard
Los Angeles, California 90010
Intentionally omitted.
<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 this 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 this
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,
1
<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 persons 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 this
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. No tenant shall occupy or permit any portion of his
Premises to be occupied as an office for a public stenographer or typist, or 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 the 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.
2
<PAGE>
(15) On Saturdays, Sundays, legal holidays and other days, 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 listed on an
approved access schedule provided by Tenant, is known and authorized by an
authorized employee of Tenant, has a card key programmed for access 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 locking the doors or otherwise, for the safety of the
Tenants and protection of property in or on the Property. Landlord reserves the
right to close and keep locked at all times all entrance and exit doors of the
Property on Saturdays, Sundays, and legal holidays, and Monday through Friday
from 6:00 p.m. to 7:00 a.m. and during such further hours as Landlord may deem
advisable for the adequate protection of said Property.
(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.
3
<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 this
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.
4
<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.
/s/ Earl Wiklund
________________________________
By: Earl Wiklund
Its: Chief Executive Officer
-----------------------
Dated: 1-23-98
-------
5
<PAGE>
EXHIBIT "F"
PARKING AGREEMENT
So long as the Lease dated January 6, 1998 between Zufu 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 3450
Wilshire Blvd., Ste. 210, 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. (See Paragraph 2 of the Addendum)
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 all 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 & Company, Inc., a California corporation
/s/ Earl Wiklund
__________________________
By: Earl Wiklund
Its: Chief Executive Officer
-----------------------
Dated: 1-23-98
-------
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: 1-28-98
-------
<PAGE>
EXHIBIT "G"
GUARANTY OF LEASE
Intentionally omitted.
<PAGE>
Exhibit 10.30
[IMPERIAL BANK LOGO]
NOTE
$1,821,890.33 Walnut Creek, California, March 9, 1998
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
$1,821,890.33 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 [_] 33,125.28, beginning April 5,
1998, 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 $_______, or more, each installment on the 5th day of each
month, beginning April 5, 1998. 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 court
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 part 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.
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE CREDIT TERMS AND
CONDITIONS AGREEMENT DATED SEPTEMBER 30, 1997 AND ALL AMENDMENTS THERETO AND
REPLACEMENTS THERFOR.
ANCHOR PACIFIC UNDERWRITERS, INC.
- -------------------------------- ---------------------------------------
By: /s/ J.R. Dunathan
- -------------------------------- ---------------------------------------
- -------------------------------- ---------------------------------------
<PAGE>
ANCHOR PACIFIC UNDERWRITERS, INC.
COMPUTATION OF LOSS PER SHARE
<TABLE>
<CAPTION>
Years Ended December 31
---------------------------------------------
1997 1996 1995
----------- ------------ -----------
<S> <C> <C> <C>
BASIC
Average shares outstanding ........................ 4,612,153 3,766,176 3,819,605
=========== =========== ===========
Net Loss .......................................... $ (946,691) $(1,405,800) $ (867,029)
=========== =========== ===========
Per Share Amount .................................. $ (0.21) $ (0.37) $ (0.23)
=========== =========== ===========
DILUTED
Average shares outstanding ........................ 4,612,153 3,766,176 3,819,605
Net effect of dilutive stock options and warrants -
based on the treasury stock method using the
average market price ........................... -- 57,371 236,064
Net effect of convertible debentures outstanding
end of period .................................. 44,444 60,606 --
Effect of shares issued upon conversion of
debentures, assuming the conversion occurred
at the beginning of the period ................. -- 580,555 --
----------- ----------- -----------
Total ............................................. 4,656,597 4,464,708 4,055,669
=========== =========== ===========
Net Loss, after deducting interest on
debentures ..................................... $ (940,691) $(1,310,522) $ (867,029)
=========== =========== ===========
Per share amount (A) ............................. $ (0.20) $ (0.29) $ (0.21)
=========== =========== ===========
</TABLE>
Note (A): For financial reporting purposes, basic and diluted loss per share is
calculated exclusive of the effects of stock options, warrants, and
convertible debentures because they are antidilutive. The above
calculation on the dilutive basis includes the effect of stock
options, warrants and debentures outstanding, for the purposes of
complying with section 229.601 of regulation S-K.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<CIK> 0000317781
<NAME> ANCHOR PACIFIC UNDERWRITERS, INC.
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 4,350,487
<SECURITIES> 0
<RECEIVABLES> 1,396,590
<ALLOWANCES> 45,543
<INVENTORY> 0
<CURRENT-ASSETS> 6,039,009
<PP&E> 3,084,861
<DEPRECIATION> 2,464,350
<TOTAL-ASSETS> 9,544,615
<CURRENT-LIABILITIES> 6,974,782
<BONDS> 0
93,836
0
<COMMON> 0
<OTHER-SE> 363,406
<TOTAL-LIABILITY-AND-EQUITY> 9,544,615
<SALES> 0
<TOTAL-REVENUES> 10,092,532
<CGS> 0
<TOTAL-COSTS> 10,574,909
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 285,049
<INCOME-PRETAX> (938,221)
<INCOME-TAX> 8,470
<INCOME-CONTINUING> (946,691)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (946,691)
<EPS-PRIMARY> (.21)
<EPS-DILUTED> (.21)
</TABLE>
