-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R2HcXweCCzH1HCgcaLMwPNgxvmo+tcTJ1fJxAJFDeFd+/VaibD/jVxyELZNptH/+ d8iGzVd5Po6E2klo/dkDqA== 0000892569-97-002150.txt : 19970827 0000892569-97-002150.hdr.sgml : 19970827 ACCESSION NUMBER: 0000892569-97-002150 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970629 FILED AS OF DATE: 19970811 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: REMEDYTEMP INC CENTRAL INDEX KEY: 0001013467 STANDARD INDUSTRIAL CLASSIFICATION: 7363 IRS NUMBER: 952890471 STATE OF INCORPORATION: CA FISCAL YEAR END: 0929 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-20831 FILM NUMBER: 97655407 BUSINESS ADDRESS: STREET 1: 32122 CAMINO CAPISTRANO CITY: SAN JUAN CAPISTRANO STATE: CA ZIP: 92675 BUSINESS PHONE: 7146611211 MAIL ADDRESS: STREET 1: 32122 CAMINO CAPISTRANO STREET 2: 32122 CAMINO CAPISTRANO CITY: SAN JUAN CAPISTRANO STATE: CA ZIP: 92675 10-Q 1 FORM 10-Q FOR THE QUARTER ENDED JUNE 30, 1997 1 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM 10-Q ---------------------- /X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JUNE 29, 1997 OR / / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO COMMISSION FILE NUMBER 0-5260 REMEDYTEMP, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) CALIFORNIA 95-2890471 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 32122 CAMINO CAPISTRANO SAN JUAN CAPISTRANO, CALIFORNIA 92675 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (714) 661-1211 ---------------------- 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 registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes /X/ No / / As of August 8, 1997 there were 5,848,763 shares of Class A Common Stock and 3,058,333 shares of Class B Common Stock outstanding. =============================================================================== 2 REMEDYTEMP, INC. INDEX
PAGE NO. -------- PART I--FINANCIAL INFORMATION Item 1. Financial Statements Balance Sheet as of June 29, 1997 and September 29, 1996 ................................ 2 Statement of Income for the three fiscal months and nine fiscal months ended June 29, 1997 and June 30, 1996 ....................................................... 3 Statement of Shareholders' Equity for the fiscal years ended September 29, 1996 and October 1, 1995, and the nine fiscal months ended June 29, 1997 ....................... 4 Statement of Cash Flows for the nine fiscal months ended June 29, 1997 and June 30, 1996 ......................................................................... 5 Notes to Financial Statements ........................................................... 6 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 8 Item 3. Quantitative and Qualitative Disclosure About Market Risk ........................... * PART II--OTHER INFORMATION Item 1. Legal Proceedings ................................................................... * Item 2. Changes In Securities ............................................................... * Item 3. Defaults Upon Senior Securities ..................................................... * Item 4. Submission of Matters to a Vote of Security Holders ................................. * Item 5. Other Information ................................................................... 11 Item 6. Exhibits and Reports on Form 8-K .................................................... 12 SIGNATURES ........................................................................................ 13
* No information provided due to inapplicability of item. 1 3 PART I--FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS REMEDYTEMP, INC. BALANCE SHEET (AMOUNTS IN THOUSANDS)
JUNE 29, SEPT. 29, 1997 1996 ---- ---- (UNAUDITED) ASSETS Current assets: Cash and cash equivalents............................................................. $ 5,460 $ 10,959 Marketable securities................................................................. 0 1,016 Accounts receivable, net of allowance for doubtful accounts........................... 49,534 42,337 Prepaid expenses and other current assets............................................. 2,092 2,177 Current portion of net investment in direct financing leases.......................... 174 164 --------- -------- Total current assets.......................................................... 57,260 56,653 Fixed assets, net....................................................................... 6,146 5,527 Other assets............................................................................ 2,098 1,262 Net investment in direct financing leases............................................... 319 464 --------- -------- Total assets.................................................................. $ 65,823 $ 63,906 ========= ======== LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable...................................................................... $ 2,655 $ 933 Distributions payable to pre-offering shareholders.................................... - 4,007 Accrued workers' compensation (Note 7)................................................ 1,383 550 Accrued payroll, benefits and related costs........................................... 9,850 10,056 Accrued licensees' share of gross profit.............................................. 1,799 1,388 Other accrued expenses................................................................ 1,270 1,711 Income taxes payable.................................................................. - 1,167 Current portion of capitalized lease obligation....................................... 443 416 Deferred income taxes................................................................. 1,084 1,084 --------- -------- Total current liabilities..................................................... 18,484 21,312 Deferred income taxes................................................................... 3,334 5,584 Capitalized lease obligation............................................................ 398 734 --------- -------- Total liabilities............................................................. 22,216 27,630 --------- -------- COMMITMENTS AND CONTINGENT LIABILITIES (Note 6) SHAREHOLDERS' EQUITY (Note 2): Preferred Stock, $.01 par value; authorized 5,000 shares; none outstanding Class A Common Stock, $.01 par value; authorized 50,000 shares; 5,842 issued and outstanding................................................ 58 58 Class B Non-Voting Common Stock, $.01 par value; authorized 4,530 shares; 3,058 issued and outstanding............................... 31 31 Additional paid-in capital............................................................ 32,834 32,671 Retained earnings..................................................................... 10,684 3,516 --------- -------- Total shareholders' equity.................................................... 43,607 36,276 --------- -------- $ 65,823 $ 63,906 ========= ========
See accompanying notes to financial statements. 2 4 REMEDYTEMP, INC. STATEMENT OF INCOME (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED NINE MONTHS ENDED --------------------- ------------------- JUNE 29, JUNE 30, JUNE 29, JUNE 30, 1997 1996 1997 1996 ---- ---- ---- ---- (UNAUDITED) (UNAUDITED) Direct sales............................................... $ 54,641 $ 47,222 $ 161,749 $ 130,424 Licensed sales............................................. 36,858 25,013 96,338 70,538 Franchise royalties........................................ 727 711 2,242 2,058 Initial franchise fees..................................... 61 10 108 49 -------- --------- --------- --------- Total revenues................................... 92,287 72,956 260,437 203,069 Cost of direct sales....................................... 42,392 36,700 126,086 100,320 Cost of licensed sales..................................... 27,666 18,640 71,987 52,869 Licensees' share of gross profit........................... 6,153 4,309 16,457 11,863 Selling and administrative expenses........................ 11,444 9,822 33,021 28,661 Depreciation and amortization.............................. 643 539 1,865 1,478 --------- --------- --------- --------- Income from operations........................... 3,989 2,946 11,021 7,878 Other income: Interest income (expense), net........................... 168 (25) 392 (61) Other, net............................................... 237 219 839 663 --------- --------- --------- --------- Income before provision for income taxes................. 4,394 3,140 12,252 8,480 Provision for income taxes....................... 1,823 47 5,084 127 --------- --------- --------- --------- Net income................................................. $ 2,571 $ 3,093 $ 7,168 $ 8,353 ========= ========= ========= ========= Net income per share....................................... $ 0.29 $ 0.79 ========= ========= Weighted average number of shares (Note 4)................. 9,007 9,025 ========= ========= Unaudited pro forma data (Note 3) Income before income taxes................................. $ 3,140 $ 8,480 Provision for income taxes................................. 1,256 3,392 --------- --------- Pro forma net income....................................... $ 1,884 $ 5,088 ========= ========= Pro forma net income per share............................. $ 0.25 $ 0.66 ========= ========= Weighted average number of shares.......................... 7,685 7,685 ========= =========
See accompanying notes to financial statements. 3 5 REMEDYTEMP, INC. STATEMENT OF SHAREHOLDERS' EQUITY (AMOUNTS IN THOUSANDS)
CLASS A CLASS B COMMON STOCK COMMON STOCK ADDITIONAL ------------ ------------ PAID-IN RETAINED SHARES AMOUNT SHARES AMOUNT CAPITAL EARNINGS TOTAL ------ ------ ------ ------ ------- -------- ----- Balance at October 2, 1994..................... 2,265 $ 23 4,530 $ 45 $ 84 $ 13,677 $ 13,829 Net income..................................... 6,400 6,400 Distributions to shareholders.................. (921) (921) ------- ---- ------- ------ ------- -------- -------- Balance at October 1, 1995..................... 2,265 23 4,530 45 84 19,156 19,308 Conversion of common stock..................... 1,472 14 (1,472) (14) Net proceeds from initial public offering of common stock................................. 2,093 21 23,387 23,408 Reclassification of S corporation retained earnings..................................... 9,200 (9,200) Net income..................................... 4,213 4,213 Distribution to pre-offering shareholders...... (701) (701) Special distribution to pre-offering shareholders in connection with initial public offering.............................. (9,952) (9,952) ------- ---- ------- ------ ------- -------- -------- Balance at September 29, 1996.................. 5,830 58 3,058 31 32,671 3,516 36,276 Unaudited Information: Activity of Employee Stock Purchase Plan..... 12 - 163 163 Net income................................... 7,168 7,168 ------- ---- ------- ------ ------- -------- -------- Balance at June 29, 1997....................... 5,842 $ 58 3,058 $ 31 $32,834 $ 10,684 $ 43,607 ======= ==== ======= ====== ======= ======== ========
See accompanying notes to financial statements. 4 6 REMEDYTEMP, INC. STATEMENT CASH FLOWS (AMOUNTS IN THOUSANDS)
NINE MONTHS ENDED --------------------- JUNE 29, JUNE 30, 1997 1996 ---- ---- (UNAUDITED) Cash flows provided by (used in) operating activities: Net income........................................................................... $ 7,168 $ 8,353 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization.................................................. 1,865 1,478 Provision for losses on accounts receivable.................................... 1,269 1,014 Deferred taxes................................................................. (2,250) 53 Changes in operating assets and liabilities: Accounts receivable........................................................ (8,466) (5,052) Prepaid expenses and other current assets.................................. 85 (1,002) Net investment in direct financing leases.................................. 135 121 Other assets............................................................... (836) (504) Accounts payable........................................................... 1,722 2,366 Accrued workers' compensation.............................................. 833 (290) Accrued payroll, benefits and related costs................................ (206) 680 Accrued licensees' share of gross profit................................... 411 588 Other accrued expenses..................................................... (441) 735 Income taxes payable....................................................... (1,167) ------- -------- Net cash provided by operating activities............................................ 122 8,540 ------- -------- Cash flows (used in) provided by investing activities: Purchases of fixed assets............................................................ (2,484) (2,066) Sale of investments.................................................................. 1,016 ------- -------- Net cash used in investing activities................................................ (1,468) (2,066) ------- -------- Cash flows (used in) provided by financing activities: Borrowings under line of credit agreement............................................ 100 10,348 Repayments under line of credit agreement............................................ (100) (13,048) Proceeds from Employee Stock Purchase Plan........................................... 163 Repayments under capital lease obligation............................................ (309) (277) Distributions to pre-offering shareholders........................................... (4,007) (5,701) ------- -------- Net cash used in financing activities................................................ (4,153) (8,678) ------- -------- Net decrease in cash and cash equivalents............................................... (5,499) (2,204) Cash and cash equivalents at beginning of period........................................ 10,959 2,204 ------- -------- Cash and cash equivalents at end of period.............................................. $ 5,460 $ 0 ======= ======== Other cash flow information: Cash paid during the period for interest............................................. $ 90 $ 147 Cash paid during the period for income taxes......................................... $ 8,780 $ 100
See accompanying notes to financial statements. 5 7 REMEDYTEMP, INC. NOTES TO FINANCIAL STATEMENTS (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) 1. BASIS OF PRESENTATION The accompanying balance sheet and statement of shareholders' equity at June 29, 1997, and the statements of income and of cash flows for the nine fiscal months ended June 29, 1997 and June 30, 1996, are unaudited. These statements have been prepared on the same basis as the Company's audited financial statements and in the opinion of management reflect all adjustments, which are only of a normal recurring nature, necessary for a fair presentation of the financial position and results of operations for such periods. These unaudited financial statements should be read in conjunction with the audited financial statements included in the Company's Form 10K/A as filed with the Securities and Exchange Commission on December 26, 1996. Certain reclassifications, which have no effect on retained earnings, have been made to conform the fiscal 1996 information to the fiscal 1997 presentation. 2. RECAPITALIZATION Concurrent with it's initial public offering in July 1996, the Company (i) effected a 1.812-for-1 stock split of its outstanding voting and non-voting common stock, and (ii) amended its Articles of Incorporation to provide for the issuance of up to 5,000 shares of preferred stock, par value $.01, an increase in the number of voting common shares authorized from 10,000 to 50,000, a reclassification of the voting and non-voting common stock, and a decrease in the number of authorized non-voting common shares from 7,500 to 4,530. Share and per share amounts for all periods presented have been adjusted to give retroactive effect to the above. 3. UNAUDITED PRO FORMA NET INCOME AND NET INCOME PER SHARE Prior to its initial public offering, the Company elected treatment as an S corporation for federal and state income tax purposes. Pro forma net income for the nine fiscal months ended June 30, 1996 represents net income after a pro forma provision, using a tax rate of 40%, to reflect the estimated income tax expense of the Company as if it had been subject to normal federal and state income taxes at C corporation rates for the period. Pro forma net income per share for the nine fiscal months ended June 30, 1996 is computed using the weighted average number of common and common equivalent shares outstanding during the period, adjusted to include the estimated number of shares required to be sold by the Company to prepay distributions to the pre-offering shareholders totaling $9,952 (890 shares as calculated based on the net proceeds from the initial public offering) including a $5,945 distribution paid in fiscal 1996 and a $4,007 distribution paid in fiscal 1997. The computation of pro forma weighted average shares outstanding gives effect to the stock split being effected in connection with the initial public offering (see Note 2). Historical net income per share has not been presented in view of prior period S corporation status. 4. EARNINGS PER SHARE DISCLOSURE In February 1997, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS No. 128") which is effective for financial statements issued for periods ending after December 15, 1997. SFAS No. 128 replaces the current presentation of earnings per share on the Statement of Income with a dual presentation of Basic Earnings Per Share ("Basic EPS") and Diluted Earnings Per Share ("Diluted EPS"). Basic EPS excludes dilution and is computed by dividing net income by the weighted average number of common shares outstanding during the period. Diluted EPS reflects the potential dilution that could occur if stock options and other commitments to issue common stock were exercised, resulting in the issuance of common stock that then shared in the earnings of the Company. SFAS 128 does not permit early application; however, upon implementation, it requires the restatement of previously reported earnings per share for each income statement presented (including interim periods). Basic and Diluted EPS under SFAS No. 128 do not differ materially from Primarily Earnings Per Share as currently presented. 5. STOCK OPTIONS In accordance with the terms of the Company's 1996 Stock Incentive Plan, on April 23, 1997, the Company granted options to purchase 260 shares of Class A Common Stock to certain of its executive officers and employees at $15.31 per share, the fair market value of the Class A Common Stock on such grant date. In accordance with APB No. 25, no compensation expense was recorded in connection with these grants. 6 8 REMEDYTEMP, INC. NOTES TO FINANCIAL STATEMENTS (CONTINUED) (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) 6. NEW CORPORATE FACILITY On April 17, 1997 the Company signed a five and one-half year lease for new corporate headquarters, the costs of which should approximate the current expenses for the corporate facilities. Management anticipates moving to the new facility in June 1998. On July 15, 1997 the Company executed a two year lease agreement with Mitchell Land & Improvement Company for the current corporate facilities. The lease includes a 60-day cancellation clause and provides for the Company to pay property taxes, insurance and certain other operating expenses applicable to the leased property. The Company intends to reside at its current location until the completion of the new facility in June 1998. 7. REMEDY INSURANCE GROUP (RIG) As of July 22, 1997, Remedy Insurance Group, LTD ("RIG"), a wholly owned subsidiary of the Company, will provide direct and licensed offices with a self-insured workers' compensation program. Management believes RIG will allow the Company to control its claims administration, allocate safety resources where they are needed and develop efficient methods of financing workers' compensation. RIG, an offshore insurance captive domiciled in Bermuda, was incorporated and funded with an amount of $600, which is classified on the balance sheet as other assets. RIG is a component of the Company's strategic plan to renew the workers' compensation self-insured program of California for Remedy operations nationwide. The Company intends to cooperate with Lindsey Morden, a national Third Party Administrator who will administer claims nationwide, and with Reliance Insurance who will provide stop-loss insurance. This stop-loss coverage will pay individual claims greater than $250 and aggregate claims greater than $7,500. 8. ACQUISITIONS During the fiscal month of July, 1997 the Company acquired one licensed office located in Grand Rapids, Michigan and one franchised office located in Indianapolis, Indiana. The combined purchase price will be allocated primarily to goodwill and amortized over a twenty year life. The Company is negotiating the purchase of two additional licensed offices, located in Worthington, Ohio and Atlanta, Georgia. The Company is contemplating the continued selective repurchase of licensed and franchised offices in certain territories with the intent of expanding the Company's market presence in such regions. 7 9 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS In addition to historical information, management's discussion and analysis includes certain forward-looking statements, including those related to the Company's growth and strategies, regarding events and financial trends that may affect the Company's future operating results and financial position. The Company's actual results and financial position could differ materially from those anticipated in the forward-looking statements as a result of competition, the availability of sufficient personnel, and other risks and uncertainties as described in detail under the "Risk Factors" section and elsewhere in the Company's Form 10K/A as filed with the SEC on December 26, 1996. RESULTS OF OPERATIONS For the Three Fiscal Months Ended June 29, 1997 Compared to the Three Fiscal Months Ended June 30, 1996 Total revenues increased 26.5% or $19.3 million to $92.3 million for the three fiscal months ended June 29, 1997 from $73.0 million for the three fiscal months ended June 30, 1996, due primarily to volume increases attributable to increased billings at existing offices, expansion of services, including EDGE(R), and the opening of 35 new offices since the prior period. Revenues from direct offices increased 15.7% to $54.6 million for the three fiscal months ended June 29, 1997 from $47.2 million for the three fiscal months ended June 30, 1996. Revenues from licensed offices increased 47.4% to $36.9 million from $25.0 million for the corresponding fiscal period of 1996. The Company's ability to continue to increase revenues depends upon many factors, including existing and emerging competition, the availability of working capital to support such growth, and the Company's ability to maintain margins in the face of pricing pressures, find and retain new qualified licensees and office managers, recruit and train additional qualified temporary personnel, and manage costs. There can be no assurance that the Company's revenues will continue to increase. Total cost of direct and licensed sales increased 26.6% or $14.7 million to $70.1 million for the three fiscal months ended June 29, 1997 from $55.3 million for the three fiscal months ended June 30, 1996, due to increased revenues as discussed above. Total cost of direct and licensed sales as a percentage of revenues was 75.9% for the three fiscal months ended June 29, 1997 and June 30, 1996, respectively. The Company's cost of direct sales increased $5.6 million or 15.5% for the three fiscal months ended June 30, 1997, while the cost of licensed sales increased 48.4% to $27.7 million, corresponding to the increases in revenues discussed above. Many factors, including increased wage and other payroll costs, could have an adverse effect on the Company's cost of direct and licensed sales. Licensees' share of gross profit represents the net payments to licensees based upon a percentage of gross profit generated by the licensed operation. The percentage of gross profit earned by the licensee is based on the number of hours billed. The Company's share of gross profit cannot be less than 7.5% of the licensed operation sales. Licensees' share of gross profit increased 42.8% or $1.8 million to $6.2 million for the three fiscal months ended June 29, 1997 from $4.3 million for the three fiscal months ended June 30, 1996. Licensees' share of gross profit as a percentage of total revenues increased to 6.7% for the three fiscal months ended June 29, 1997 from 5.9% for the three fiscal months ended June 30, 1996. This increase resulted from licensed revenue increasing more rapidly than direct revenue. Licensees' share of gross profit as a percentage of licensees' total gross profit decreased to 66.9% for the three fiscal months ended June 29, 1997 from 67.6% for the three fiscal months ended June 30, 1996 due to a reduction in the gross margin percentage earned by some of the larger licensed offices, resulting in Remedy being paid 7.5% of the licensed office sales, which is more than the usual rate of 30% of licensed gross margin. Selling, general and administrative expenses (including depreciation and amortization) increased 16.7% or $1.7 million to $12.1 million for the three fiscal months ended June 29, 1997 from $10.4 million for the three fiscal months ended June 30, 1996. Selling, general and administrative expenses as a percentage of total revenues decreased to 13.1% for the three fiscal months ended June 29, 1997 from 14.2% for the three fiscal months ended June 30, 1996, largely due to the Company's total revenues expanding more rapidly than selling, general and administrative expenses. The Company has controlled growth in selling, general and administrative expenses by tightening cost controls through budgetary analysis and implementing more stringent hiring and compensation guidelines. There can be no assurance that selling, general and administrative expenses will not increase in the future, both in absolute terms and as a percentage of total revenues, and increases in these expenses could adversely affect the Company's profitability. Operating income increased 35.4% or $1.1 million to $4.0 million for the three fiscal months ended June 29, 1997 from $2.9 million for the three fiscal months ended June 30, 1996 due to factors described above. Operating income as a percentage of revenues increased to 4.3% for the three fiscal months ended June 29, 1997 from 4.0% for the three fiscal months ended June 30, 1996. 8 10 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) Income before income taxes increased 39.9% or $1.3 million to $4.4 million for the three fiscal months ended June 29, 1997 from $3.1 million for the three fiscal months ended June 30, 1996 due to the factors described above. As a percentage of total revenues, income before income taxes increased to 4.8% in the three fiscal months ended June 29, 1997 from 4.3% in the three fiscal months ended June 30, 1996. For the Nine Fiscal Months Ended June 29, 1997 Compared to the Nine Fiscal Months Ended June 30, 1996 Total revenues increased 28.3% or $57.4 million to $260.4 million for the nine fiscal months ended June 29, 1997 from $203.1 million for the nine fiscal months ended June 30, 1996, due primarily to volume increases attributable to increased billings at existing offices, a 1% increase in the average billing rate, expansion of services, including EDGE(R), and the opening of 35 new offices since the prior period. Revenues from direct offices increased 24% to $161.7 million for the nine fiscal months ended June 29, 1997 from $130.4 million for the nine fiscal months ended June 30, 1996. Revenues from licensed offices increased 36.6% to $96.3 million from $70.5 million for the corresponding fiscal period of 1996. The Company's ability to continue to increase revenues depends upon many factors, including existing and emerging competition, the availability of working capital to support such growth, and the Company's ability to maintain margins in the face of pricing pressures, find and retain new qualified licensees and office managers, recruit and train additional qualified temporary personnel, and manage costs. There can be no assurance that the Company's revenues will continue to increase. Total cost of direct and licensed sales increased 29.3% or $44.9 million to $198.1 million for the nine fiscal months ended June 29, 1997 from $153.2 million for the nine fiscal months ended June 30, 1996. Total cost of direct and licensed sales as a percentage of revenues increased to 76.1% for the nine fiscal months ended June 29, 1997 from 75.4% for the nine fiscal months ended June 30, 1996. This increase was due to the expansion of revenue growth in the light industrial business, which generally has lower gross margin rates than the clerical and office automation business. The Company's cost of direct sales increased $25.8 million or 25.7% for the nine fiscal months ended June 30, 1997. The cost of direct sales increased more rapidly than direct revenues due to the light industrial business growth. The cost of licensed sales increased 36.2% to $72 million, which is consistent with the growth in licensed revenue. Many factors, including increased wage and other payroll costs, could have an adverse effect on the Company's cost of direct and licensed sales. Licensees' share of gross profit represents the net payments to licensees based upon a percentage of gross profit generated by the licensed operation. The percentage of gross profit earned by the licensee is based on the number of hours billed. The Company's share of gross profit cannot be less than 7.5% of the licensed operation sales. Licensees' share of gross profit increased 38.7% or $4.6 million to $16.5 million for the nine fiscal months ended June 29, 1997 from $11.9 million for the nine fiscal months ended June 30, 1996. Licensees' share of gross profit as a percentage of total revenues increased to 6.3% for the nine fiscal months ended June 29, 1997 from 5.8% for the nine fiscal months ended June 30, 1996. This increase resulted from licensed revenue increasing more rapidly than direct revenue. Licensees' share of gross profit as a percentage of licensees' total gross profit increased to 67.6% for the nine fiscal months ended June 29, 1997 from 67.1% for the nine fiscal months ended June 30, 1996 due to an increase in hours billed at existing licensed offices. Selling, general and administrative expenses (including depreciation and amortization) increased 15.8% or $4.7 million to $34.9 million for the nine fiscal months ended June 29, 1997 from $30.1 million for the nine fiscal months ended June 30, 1996. Selling, general and administrative expenses as a percentage of total revenues decreased to 13.4% for the nine fiscal months ended June 29, 1997 from 14.8% for the nine fiscal months ended June 30, 1996, largely due to the Company's total revenues expanding more rapidly than selling, general and administrative expenses. The Company has controlled growth in selling, general and administrative expenses by tightening cost controls through budgetary analysis and implementing more stringent hiring and compensation guidelines. There can be no assurance that selling, general and administrative expenses will not increase in the future, both in absolute terms and as a percentage of total revenues, and increases in these expenses could adversely affect the Company's profitability. Operating income increased 39.9% or $3.1 million to $11.0 million for the nine fiscal months ended June 29, 1997 from $7.9 million for the nine fiscal months ended June 30, 1996 due to factors described above. Operating income as a percentage of revenues increased to 4.2% for the nine fiscal months ended June 29, 1997 from 3.9% for the nine fiscal months ended June 30, 1996. Income before income taxes increased 44.5% or $3.8 million to $12.3 million for the nine fiscal months ended June 29, 1997 from $8.5 million for the nine fiscal months ended June 30, 1996 due to the factors described above. As a percentage of total revenues, income before income taxes increased to 4.7% in the nine fiscal months ended June 29, 1997 from 4.2% in the nine fiscal months ended June 30, 1996. 9 11 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) LIQUIDITY AND CAPITAL RESOURCES Net cash flow provided by operating activities was $0.1 million and $8.5 million for the nine fiscal months ended June 29, 1997 and June 30, 1996, respectively. The decrease in net cash flow provided by operating activities for the nine fiscal months ended June 29, 1997 compared to the nine fiscal months ended June 30, 1996, resulted from payment of $8.8 million in estimated taxes during the nine months ended June 29, 1997. Of this amount, approximately $2.3 resulted from taxes owed on the Company's conversion from S corporation tax status to C corporation tax status. No taxes were paid in the corresponding preceding period given the Company's prior S corporation status. The decrease in cash flow from operating activities was also caused by growth in accounts receivable due to additional sales and expanded subcontractor billings, which do not affect the Company's revenue base. Cash used for purchases of fixed assets, which are generally for computers and peripherals and office furniture, totaled $2.5 million and $2.1 million for the nine fiscal months ended June 29, 1997 and June 30, 1996, respectively. The Company expects capital expenditures to be approximately $3.1 million over the next twelve months due to anticipated openings of new Company-owned offices and further investments in the Company's computer-based technologies. Cash generated by the sale of investments, which are generally short-term investments with original maturities greater than ninety days but not more than one year, totaled $1.0 million for the nine fiscal months ended June 29, 1997. The proceeds from the sale of investments were used to fund part of the distribution payable to the pre-offering shareholders. Cash flows were affected by payment of $4.0 million to shareholders, as previously discussed in the Company's Form 10K/A filed with the SEC on December 26, 1996. The Company has a revolving line of credit agreement with Bank of America and Union Bank providing for aggregate borrowings and letters of credit of $25.0 million. Interest on outstanding borrowings is payable monthly at the prime rate or, at the Company's discretion, LIBOR plus 1.95%. The line of credit is unsecured and expired on February 29, 1997, however, the Company has obtained an extension until August 29, 1997. Historically, the principal uses of the line of credit have been to finance receivables and to provide a letter of credit required in connection with the Company's workers' compensation self-insurance program to meet regulatory requirements. The Company had no borrowings under its line of credit as of June 29, 1997. The bank agreements governing the line of credit require the Company to maintain certain financial ratios and comply with certain restrictive covenants. The Company is negotiating a revolving line of credit agreement with Bank of America providing for aggregate borrowings and letters of credit of $30.0 million. Interest on outstanding borrowings would be payable monthly at the bank's reference rate or, at the Company's discretion, LIBOR plus 1.5%. The line of credit would be unsecured and would expire on February 28, 1999. During the fiscal month of July, 1997 the Company acquired one licensed office located in Grand Rapids, Michigan and one franchised office located in Indianapolis, Indiana. The combined purchase price will be allocated primarily to goodwill and amortized over a twenty year life. The Company is negotiating the purchase of two additional licensed offices, located in Worthington, Ohio and Atlanta, Georgia. The Company is contemplating the continued selective repurchase of licensed and franchised offices in certain territories with the intent of expanding the Company's market presence in such regions. These purchases will have an impact on the Company's liquidity as funds are used for the repurchase of the offices. SEASONALITY The Company's quarterly operating results are affected by the number of billing days in the quarter and the seasonality of its clients' businesses. The first fiscal quarter has historically been strong as a result of manufacturing and retail emphasis on holiday sales. The second fiscal quarter historically shows little to no growth in comparable revenues from the first fiscal quarter. Revenue growth has historically accelerated in each of the third and fourth fiscal quarters as manufacturers, retailers and service businesses increase their level of business activity. 10 12 REMEDYTEMP, INC. PART II--OTHER INFORMATION ITEM 5. OTHER INFORMATION On April 17, 1997, the Company executed a lease for new corporate headquarters. The lease agreement is between the Company and Parker-Summit, LLC and provides for leased premises, projected to be approximately 52,500 square feet in size, at a fixed rate of $1.93 per square foot per month, for a fixed term of five and one-half years. The Company has an option to renew the lease after the initial term for an additional term of five years. In addition to base rent, the Company is obligated to pay a percentage of the increase in operating costs and real property taxes for the leased premises. It is anticipated that the leased premises will be completed and ready for occupancy in June 1998. On July 15, 1997 the Company executed a two year lease agreement with Mitchell Land & Improvement Company for the current corporate facilities. The lease includes a 60-day cancellation clause and provides for the Company to pay property taxes, insurance and certain other operating expenses applicable to the leased property. The Company intends to reside at its current location until the new facility is ready for occupancy. As of July 22, 1997, Remedy Insurance Group, LTD ("RIG") will provide direct and licensed offices with a self-insured workers' compensation program. Management believes that RIG allows the Company to control its claims administration, allocate safety resources where they are needed and develop efficient methods of financing workers' compensation. RIG, an offshore insurance captive domiciled in Bermuda, was incorporated and funded with an amount of $600,000 which is classified on the balance sheet as Other Assets. RIG is a component of the Company's strategic plan to renew the workers' compensation self-insured program of California for Remedy operation nationwide. The Company intends to cooperate with Lindsey Morden, a national Third Party Administrator to administer claims nationally, and with Reliance Insurance who will provide stop-loss insurance. This stop-loss coverage will pay individual claims greater than $250,000 and aggregate claims greater than $7.5 million. During the fiscal month of July, 1997 the Company acquired one licensed office located in Grand Rapids, Michigan and one franchised office located in Indianapolis, Indiana. The combined purchase price will be allocated primarily to goodwill and amortized over a twenty year life. The Company is negotiating the purchase of two additional licensed offices, located in Worthington, Ohio and Atlanta, Georgia. The Company is contemplating the continued selective repurchase of licensed and franchised offices in certain territories with the intent of expanding the Company's market presence in such regions. 11 13 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits Set forth below is a list of the exhibits included as part of this Quarterly Report:
Number Exhibit Description - - ------- ----------- 3.1 Amended and Restated Articles of Incorporation of the Company* 3.2 Amended and Restated Bylaws of the Company* 4.1 Specimen Stock Certificate* 4.2 Shareholder Rights Agreement* 10.1 Robert E. McDonough, Sr. Amended and Restated Employment Agreement* 10.2 Paul W. Mikos Employment Agreement* 10.3 R. Emmett McDonough Employment Agreement* 10.4 Allocation Agreement with R. Emmett McDonough and Related Trusts* 10.5 Registration Rights Agreement with R. Emmett McDonough and Related Trusts* 10.6 Letter regarding terms of employment and potential severance of Alan M. Purdy* 10.7 Deferred Compensation Agreement for Alan M. Purdy* 10.8 Letter regarding potential severance of Jeffrey A. Elias* 10.9 Form of Indemnification Agreement* 10.10 Lease Agreement between RemedyTemp, Inc. and Robert E. McDonough, Sr.** 10.11 RemedyTemp, Inc. 1996 Stock Incentive Plan* 10.12 RemedyTemp, Inc. 1996 Employee Stock Purchase Plan* 10.13 Form of Franchising Agreement for Licensed Offices* 10.14 Form of Franchising Agreement for Franchised Offices* 10.15 Form of Licensing Agreement for IntellisearchSM* 10.16 Credit Agreement among Bank of America National Trust and Savings Association, Union Bank and RemedyTemp, Inc. as amended* 10.17 Paul W. Mikos Promissory Note* 10.18 Additional Deferred Compensation Agreement for Alan M. Purdy*** 10.19 Lease Agreement between RemedyTemp, Inc. and Parker-Summit, LLC**** 10.20 Lease Agreement between RemedyTemp, Inc. and Mitchell Land & Improvement Company 11.1 Statement Regarding Computation of Per Share Earnings 27.1 Financial Data Schedule
* Incorporated by reference to the exhibit of same number to the Registrant's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. ** Incorporated by reference to the exhibit of same number to the Registrant's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. This agreement was terminated on July 15, 1997. *** Incorporated by reference to the exhibit of same number to the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended December 29, 1996. **** Incorporated by reference to the exhibit of same number to the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 30, 1997. (b) Reports on Form 8-K No reports on Form 8-K were filed in the fiscal quarter ended June 29, 1997. 12 14 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. REMEDYTEMP, INC. August 8, 1997 /s/ PAUL W. MIKOS Paul W. Mikos, President and Chief Executive Officer August 8, 1997 /s/ ALAN M. PURDY Senior Vice President and Chief Financial Officer (Principal Financial Officer) 13 15 EXHIBIT INDEX
NUMBER EXHIBIT DESCRIPTION - - ------- ----------- 3.1 Amended and Restated Articles of Incorporation of the Company* 3.2 Amended and Restated Bylaws of the Company* 4.1 Specimen Stock Certificate* 4.2 Shareholder Rights Agreement* 10.1 Robert E. McDonough, Sr. Amended and Restated Employment Agreement* 10.2 Paul W. Mikos Employment Agreement* 10.3 R. Emmett McDonough Employment Agreement* 10.4 Allocation Agreement with R. Emmett McDonough and Related Trusts* 10.5 Registration Rights Agreement with R. Emmett McDonough and Related Trusts* 10.6 Letter regarding terms of employment and potential severance of Alan M. Purdy* 10.7 Deferred Compensation Agreement for Alan M. Purdy* 10.8 Letter regarding potential severance of Jeffrey A. Elias* 10.9 Form of Indemnification Agreement* 10.10 Lease Agreement between RemedyTemp, Inc. and Robert E. McDonough, Sr.** 10.11 RemedyTemp, Inc. 1996 Stock Incentive Plan* 10.12 RemedyTemp, Inc. 1996 Employee Stock Purchase Plan* 10.13 Form of Franchising Agreement for Licensed Offices* 10.14 Form of Franchising Agreement for Franchised Offices* 10.15 Form of Licensing Agreement for IntellisearchSM* 10.16 Credit Agreement among Bank of America National Trust and Savings Association, Union Bank and RemedyTemp, Inc. as amended* 10.17 Paul W. Mikos Promissory Note* 10.18 Additional Deferred Compensation Agreement for Alan M. Purdy*** 10.19 Lease Agreement between RemedyTemp, Inc. and Parker-Summit, LLC**** 10.20 Lease Agreement between RemedyTemp, Inc. and Mitchell Land & Improvement Company 11.1 Statement Regarding Computation of Per Share Earnings 27.1 Financial Data Schedule
* Incorporated by reference to the exhibit of same number to the Registrant's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. ** Incorporated by reference to the exhibit of same number to the Registrant's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. This agreement was terminated on July 15, 1997. *** Incorporated by reference to the exhibit of same number to the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended December 29, 1996. **** Incorporated by reference to the exhibit of same number to the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 30, 1997. 14 EX-10.20 2 LEASE AGREEMENT BETWEEN REMEDYTEMP, INC. 1 EXHIBIT 10.20 OFFICE LEASE MITCHELL LAND AND IMPROVEMENT COMPANY, INC. as Landlord, AND REMEDY TEMP, INC. as Tenant 2 TABLE OF CONTENTS
Page 1. TERM ........................................................... 1 2. BASIC ANNUAL RENT .............................................. 1 3. ADDITIONAL RENT ................................................ 1 4. SECURITY DEPOSIT ............................................... 2 5. REPAIRS ........................................................ 2 6. IMPROVEMENTS AND ALTERATIONS ................................... 2 7. LIENS .......................................................... 3 8. USE OF PREMISES ................................................ 3 9. UTILITIES ...................................................... 3 10. RULES AND REGULATIONS .......................................... 4 11. TAXES ON TENANT'S PROPERTY ..................................... 4 12. SUBSTITUTED PREMISES ........................................... 5 13. FIRE OR CASUALTY ............................................... 5 14. EMINENT DOMAIN ................................................. 5 15. ASSIGNMENT AND SUBLETTING ...................................... 5 16. ACCESS ......................................................... 6 17. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATES ............... 6 18. SALE BY LANDLORD ............................................... 7 19. NONLIABILITY AND INDEMNIFICATION OF LANDLORD; INSURANCE ........ 7 20. WAIVER OF SUBROGATION .......................................... 9 21. ATTORNEYS' FEES ................................................ 9 22. WAIVER ......................................................... 9 23. NOTICES ........................................................ 9 24. INSOLVENCY OR BANKRUPTCY ....................................... 9 25. DEFAULT ........................................................ 9 26. HOLD OVER ...................................................... 11 27. CONDITION OF PREMISES .......................................... 11 28 QUIET POSSESSION ............................................... 11 29. DAMAGE TO TENANT'S PROPERTY .................................... 12 30. CONFLICT OF LAWS ............................................... 12 31. COMMON FACILITIES; PARKING ..................................... 12 32. SUCCESSORS AND ASSIGNS ......................................... 12 33. BROKERS ........................................................ 12 34. NAME ........................................................... 12 35. EXAMINATION OF LEASE ........................................... 12 36. INTEREST ON TENANT'S OBLIGATIONS; LATE CHARGE .................. 13 37. TIME ........................................................... 13 38. DEFINED AND MARGINAL HEADINGS .................................. 13 39. PRIOR AGREEMENTS; SEPARABILITY ................................. 13 40. CORPORATE AUTHORITY ............................................ 13 41. NO LIGHT, AIR OR VIEW EASEMENT ................................ 13 42. AMERICANS WITH DISABILITIES OF 1990 ............................ 13 43. HAZARDOUS SUBSTANCES ........................................... 14 44. NEGOTIATED AGREEMENT ........................................... 16 45. MORTGAGEE PROTECTION ........................................... 16 46. ADDENDA ........................................................ 16
EXHIBIT "A-1" INTENTIONALLY OMITTED EXHIBIT "A-2" INTENTIONALLY OMITTED EXHIBIT "A-3" INTENTIONALLY OMITTED EXHIBIT "A-4" INTENTIONALLY OMITTED EXHIBIT "B" INTENTIONALLY OMITTED EXHIBIT "C" RULES AND REGULATIONS EXHIBIT "D" TENANT'S CERTIFICATE EXHIBIT "E" INTENTIONALLY OMITTED EXHIBIT "E-1" INTENTIONALLY OMITTED
Landlord [sig] ------- Tenant [sig] ------- -i- 3 OFFICE LEASE This OFFICE LEASE (the "Lease") is made this _ day of July, 1997, between Mitchell Land and Improvement Company, Inc., a California corporation, hereinafter called "Landlord", and Remedy Temp, Inc., a California corporation, hereinafter called "Tenant". LEASE OF PREMISES Landlord hereby leases to Tenant and Tenant hereby hires from Landlord, subject to all of the terms and conditions hereinafter set forth, those certain premises (the "Premises") as set forth in Item 1 of the Basic Lease Provisions. The Premises consist of that certain office building (the "Building") situated in the City of San Juan Capistrano, County of Orange, State of California. The Building is currently known as the Remedy Temp Plaza. Said land is also improved with landscaping, parking facilities and other improvements and appurtenances (collectively the "Improvements"). BASIC LEASE PROVISIONS 1. Building Name: Remedy Temp Plaza Floors: 1 and 2 Address: 32122 Camino Capistrano, San Juan Capistrano, CA 92675 2. Intentionally Omitted. 3. Building Expense Percentage: 100%. 4. Initial Basic Annual Rent: $175,000.00 ($13.27 per square foot) 3. Initial Monthly Rental Installments: $14,583.33 ($1.11 per square foot) 4. Basic Annual Rent Increase(s): None 5. Term Two (2) year(s) and Zero (0) months 6. Commencement Date: The Closing Date of First American Title Insurance Company Escrow No. N971123G, provided that the Closing Date occurs on or before September 1, 1997. 7. Security Deposit: $0.00 8. Broker(s): None 9. Permitted Use: General Office Purposes and no other use. 10. Space Plan Approval Date: None 11. Address for Notices: LANDLORD: TENANT: MITCHELL LAND AND IMPROVEMENT REMEDY TEMP, INC. COMPANY, INC. 2919 Gardena Avenue 32122 Camino Capistrano Signal Hill, California 90806 San Juan Capistrano, California 92675 Attn: D. W. Mitchell Attn: Cindy Wideen 12. All payments under this Lease shall be sent to the first address specified in Paragraph 13 or such address as Landlord may designate from time to time in writing. IN WITNESS WHEREOF, the parties hereto have executed this Office Lease, consisting of the foregoing provisions and Paragraphs 1 through 45, together with Exhibits C through E, inclusive, incorporated herein by this reference, as of the date first above written. "Landlord" "Tenant" MITCHELL LAND AND IMPROVEMENT REMEDY TEMP, INC., a California COMPANY, INC., a California corporation corporation By:[sig] By: ------------------------- ------------------------- Title: President Title: ----------------------- ---------------------- Dated: July 14, 1997 Dated: ----------------------- ----------------------- i Landlord [sig] ------- Tenant [sig] ------- 4 TERM PARAGRAPH 1 (a) The term of this Lease shall be as shown in Item 7 of the Basic Lease Provisions and shall commence on the Commencement Date as shown in Item 8 of the Basic Lease Provisions. (b) Notwithstanding anything contained herein to the contrary, Tenant shall have the right at any time after the Commencement Date, upon sixty (60) days written notice and without penalty or additional cost, to terminate the Lease. BASIC ANNUAL RENT PARAGRAPH 2 Tenant agrees to pay Basic Annual Rent for the Premises in an amount equal to the initial sum shown in Item 4 of the Basic Lease Provisions, increased in the manner referenced in Item 6 of the Basic Lease Provisions. The Basic Annual Rent shall be payable in advance without deduction or offset and in equal monthly installments as shown in Item 5 of the Basic Lease Provisions, commencing on the Commencement Date and continuing on the first day of each calendar month thereafter. No demand, notice or invoice shall be required for the payment of Basic Annual Rent. If the term of this Lease commences or ends on a day other than the first or last day of a calendar month, then the rent for such partial month shall be prorated in the proportion that the number of days this Lease is in effect during such partial month bears to the number of days in that calendar month. Such rent shall be paid at the commencement of such partial month. ADDITIONAL RENT PARAGRAPH 3 (a) Tenant agrees to pay as Additional Rent for the Premises all "Operating Expenses" (as hereinafter defined) incurred by Landlord in the maintenance, operation or repair of the Building and the Improvements, except as otherwise set forth hereafter. (b) Prior to the commencement of the Lease term and of each calendar year thereafter, Landlord shall give Tenant a written estimate of the Operating Expenses. Tenant shall pay such estimated amount to Landlord in equal monthly installments, in advance. As soon after the end of each calendar year as is reasonably possible for Landlord, Landlord shall furnish to Tenant a statement showing in reasonable detail the actual Operating Expenses incurred by Landlord during such period, and the parties shall within thirty (30) days thereafter make any payment or allowance necessary to adjust Tenant's estimated payment to Tenant's actual payment as shown by such annual statement. Any amount due Tenant shall be credited against installments next coming due under this Paragraph 3 and, if the Lease has expired or earlier terminated, shall be paid directly to Tenant. Failure to furnish a statement to Tenant shall not waive any amounts due pursuant to this Paragraph 3. (c) If at any time during any calendar year of the Lease term the "Property Taxes" (as hereinafter defined) applicable to the Building and/or the Improvements, the rates for any insurance, utility or janitorial service to the Building and/or the Improvements and/or any other items included in Operating Expenses are increased to a rate(s) or amount(s) in excess of the rate(s) or amount(s) used in calculating the estimated Operating Expenses for such calendar year, Tenant's estimated amount of such Operating Expenses shall be increased for the month in which such increase becomes effective and for succeeding months as applicable. Upon receipt of notice of such increase in rate or amount, Landlord shall give Tenant written notice of the amount or estimated amount of increase, the month in which effective, and Tenant's monthly amount thereof. Tenant shall pay such increase to Landlord as a part of Tenant's monthly payments of estimated Operating Expenses as provided in subparagraph (b) above, commencing with the month in which effective. (d) The term "Operating Expenses" as used herein shall include all costs of operation, maintenance and repair of the Building and Improvements as determined by generally accepted accounting practices consistently applied and shall include the following costs by way of illustration but not limitation: "Property Taxes" (as hereinafter defined); general or special assessments; costs and expenses in contesting the amounts or validity of any Property Tax by appropriate proceedings; water and sewer charges; insurance premiums; license, permit and inspection fees; heat; light; power; steam; janitorial and security services; labor; salaries; fringe benefits; air conditioning; landscaping; operation, maintenance and repair of all parking facilities; supplies; materials; equipment; tools; the cost of any capital improvements and capital replacements made to the Building by Landlord that reduce operating expense or that are required under any governmental law or regulation not applicable to the Building or not in effect at the time it was constructed, (such cost to be amortized over such reasonable period as Landlord shall determine with a return on capital at the rate of 10% per annum on the unamortized balance or at such higher rate as may have been paid by Landlord on funds borrowed for the purpose of constructing such capital improvements); property management costs; costs incurred to comply with any governmental laws, ordinances, rules or regulations now or hereinafter enacted, including, without limitation, ADA, Title III, and ADAAG, as defined in Paragraph 42 herein; and fees or other charges incurred in conjunction with membership in energy conservation organizations. The term "Property Taxes" as used herein shall include all real estate taxes or personal property taxes and other taxes, charges and assessments, unforeseen as well as foreseen, which are levied with respect to the Building and the Improvements, or any fixture and 1 Landlord [sig] ------- Tenant [sig] ------- 5 equipment and other property of Landlord, real or personal, located in the Building or on the Improvements as of the date hereof and used in connection with the operation of the Building, the Improvements and the land upon which they are situated, and any tax, surcharge, assessment, or service or other fee which shall be levied or collected in addition to or in lieu of real estate or personal property taxes, other than taxes covered by Paragraph 11. The term "Property Taxes" as used herein shall also include any taxes on rental reserved hereunder or on Landlord's business of leasing the Premises, excepting only net income taxes. Notwithstanding anything to the contrary in the foregoing, the term "Operating Expenses" as used herein shall specifically exclude such expenses as (i) depreciation, interest or amortization on mortgages or ground leases, (ii) costs of capital improvements and capital replacements (except as provided for in Paragraph 3(d)), and (iii) other costs for which Landlord receives reimbursement from insurance proceeds or a third party. (e) Notwithstanding anything to the contrary contained in subparagraph (d) above, as to each specific category of expense which Tenant either pays directly to third parties or reimburses directly to Landlord (e.g., separately metered utilities, separately contracted janitorial service, Property Taxes paid directly to the taxing authority provided that Landlord receives written evidence from Tenant that such Property Taxes have been paid by Tenant before the delinquency date), Tenant's payments with respect thereto shall be excluded from the determination of "Operating Expenses" for purposes of this Paragraph 3. (f) The Basic Annual Rent, the Additional Rent, and other amounts required to be paid by Tenant hereunder, are sometimes collectively referred to as, and shall constitute, "rent." SECURITY DEPOSIT PARAGRAPH 4 Intentionally Omitted. REPAIRS PARAGRAPH 5 (a) Subject to the provisions of Paragraph 3(d), Paragraph 13 (Fire or Casualty) and Paragraph 14 (Eminent Domain), it is intended by the parties hereto that Landlord have no obligation, in any manner whatsoever, to repair and maintain the Premises, or the equipment therein, all of which obligations are intended to be that of Tenant. It is the intention of the parties hereto that the terms of this Lease govern the respective obligations of the parties hereto as to maintenance and repair of the Premises, and they expressly waive the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease. Except as provided in Paragraph 13, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business arising from the making by Tenant of any alterations or improvements in or to any portion of the Building or the Improvements or in or to fixtures, appurtenances and equipment therein or thereon. Tenant waives the right to make repairs at Landlord's expense under Section 1942 of the California Civil Code, or under any law, statute or ordinance now or hereafter in effect. (b) Subject to the provisions of Paragraph 3(d), Paragraph 5(a), Paragraph 13 (Fire or Casualty) and Paragraph 14 (Eminent Domain), Tenant shall, at its sole cost and expense, maintain the Premises in a clean, neat and sanitary condition, and in good order and repair during the term of this Lease including, but not limited to, all equipment or facilities such as elevators, plumbing, heating, ventilating, air conditioning, electrical, lighting, fire protection system, fixtures, walls (interior and exterior), ceilings, floors, windows, doors, landscaping, parking lots located in, on, or adjacent to the Premises. Tenant shall do, at its sole cost and expense, all decorating, remodeling, alteration and painting required by Tenant during the term of the Lease. Upon termination of this Lease, Tenant shall leave the Premises in a clean, neat and sanitary condition. Tenant shall leave the Premises in the same condition as provided to them upon commencement, except for normal wear and tear; provided, however, that Tenant may, at its option, remove its trade fixtures from the Premises and, upon such removal, repair any damage occasioned thereby. IMPROVEMENTS AND ALTERATIONS PARAGRAPH 6 (a) Tenant shall not make any alterations, additions or improvements without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. All such alterations, additions or improvements (except movable furniture and trade fixtures) shall become the property of Landlord and shall be surrendered with the Premises, as a part thereof, at the expiration or earlier termination of the term hereof. The same shall be made by Tenant at its sole cost and expense. Any contractor or person making such improvements must first be approved in writing by Landlord, which approval shall not be unreasonably withheld. Landlord may condition its approval of any such alterations, additions or improvements upon Tenant providing Landlord with a bond or other surety in an amount and type satisfactory to Landlord insuring completion of such alterations, additions or improvements. Upon any termination of the Lease, Tenant shall, upon demand by Landlord, at Tenant's sole cost and expense, forthwith remove any alterations, additions or improvements (except those made prior to the Commencement Date) made by Tenant and designated by Landlord to be removed, and repair and restore the Premises to their original condition, reasonable wear and tear excepted. 2 Landlord [sig] ------- Tenant [sig] ------- 6 (b) Alterations exceeding $5,000 or those which consist of modifications to electrical, HVAC, exterior walls, corridor walls, windows, fire and safety, and any other items that could affect the use and safety of the Building, in general, shall be supervised by Landlord. Tenant shall reimburse Landlord for such supervision at the rate of 15% of the actual cost of such alterations. LIENS PARAGRAPH 7 Tenant shall keep the Premises free from any liens arising out of any work performed, materials furnished, or obligations incurred by or for Tenant. In the event that Tenant shall not, within ten (10) days following the imposition of any such lien, cause the same to be released of record by payment of posting of a proper bond, Landlord shall have, in addition to all other remedies provided herein and by law, the right, but not the obligation, to cause the same to be released by such means as it shall deem proper, including payment of or defense against the claim giving rise to such lien. All sums paid by Landlord and all expenses incurred by it, including but not limited to all attorneys' fees and court costs, in connection therewith shall create automatically an obligation of Tenant to pay an equivalent amount as additional rent, which additional rent shall be payable by Tenant on Landlord's demand with interest at the maximum rate per annum permitted by law until paid. USE OF PREMISES PARAGRAPH 8 Tenant shall use the Premises only as set forth in Item 11 of the Basic Lease Provisions and shall not use or permit the Premises to be used for any other purpose without the prior written consent of Landlord. Tenant shall not use or occupy the Premises in violation of law or of the Certificate of Occupancy issued for the Building, and shall, upon five (5) days' written notice from Landlord, discontinue any use of the Premises which is declared by any governmental authority having jurisdiction to be a violation of law or of said Certificate of Occupancy. Tenant shall obtain, and maintain at its own cost and expense, throughout the term of the Lease, all permits, licenses and governmental approvals required for the lawful conduct of Tenant's business on the Premises. Tenant shall comply with any direction of any governmental authority having jurisdiction which shall, by reason of the nature of Tenant's use or occupancy of the Premises, impose any duty upon Tenant or Landlord with respect to the Premises or with respect to the use or occupancy thereof. Tenant shall not do or permit to be done anything which will invalidate or increase the cost of any fire, extended coverage or any other insurance policy covering the Building and/or property located therein and shall comply with all rules, orders, regulations and requirements of the Pacific Fire Rating Bureau or any other organization performing a similar function. Notwithstanding Paragraph 3(d) or 3(e) hereof, Tenant shall promptly upon demand reimburse Landlord for the full amount of any additional premium charged for such policy by reason of Tenant's failure to comply with the provisions of this paragraph, it being understood that such demand for reimbursement shall not be Landlord's exclusive remedy. Tenant shall not in any way use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain, or permit any nuisance in, on or about the Premises. Tenant shall not commit or suffer to be committed any waste in or upon the Premises. Landlord's engineer has expressed concern that the loft space in the Premises is not designed to support the weight of materials which Tenant has stored in such loft space prior to the Commencement Date, and on the basis of such assessment Landlord wants Tenant to remove all of its materials form such loft space. Tenant, however, has used the loft space for the past several years for the storage of files and phone equipment, and believes on the basis of consultations with its contractor that the loft space can support, at a minimum, (i) the phone equipment currently located in the loft space, and (ii) a bank of files located along one wall of the loft space where a support beam provides greater support than in other portions of the loft space. Based on the foregoing, the parties agree that (A) Tenant shall not be required during the term of this Lease to remove its phone equipment from the loft space, (B) Tenant shall have forty-five (45) days following the Commencement Date to work in good faith with Landlord's engineer to determine how to accommodate Tenant's desire to store at least one bank of files in the loft space and that Landlord's engineer will work in good faith with Tenant to accomplish the same at no cost to Landlord, and (C) if despite Tenant's and Landlord's engineer's good faith efforts, an arrangement cannot be worked out to both Tenant's and Landlord's reasonable satisfaction with respect to the storage of such files in the loft space, Tenant shall remove within sixty (60) days following the Commencement Date all materials (excepting the phone equipment described in clause (A) above) including, but not limited to, records and files and, thereafter, Tenant shall not use the loft space for the storage of any such materials during the term of this Lease. Tenant shall indemnify, defend (with counsel reasonably satisfactory to Landlord) and hold Landlord and Landlord's Related Parties (as hereinafter defined in Paragraph 19(b)), harmless against any and all claims, losses, costs, damages, expenses or liabilities arising from any injury or damage to any person or property whatsoever, when such injury Or damage has been caused in part or in whole by the presence of the phone equipment and materials, if any, stored in the loft space in the Premises. UTILITIES PARAGRAPH 9 (a) Provided that Tenant is not in default hereunder, Landlord agrees to furnish or cause to be furnished to the Premises, the utilities and services described, subject to the conditions and in accordance with the standards set forth below: 3 Landlord [sig] ------- Tenant [sig] ------- 7 (i) During normal business hours as reasonably determined by Tenant, Landlord shall provide automatic elevator facilities. (ii) During normal business hours as reasonably determined by Tenant, Landlord shall ventilate the Premises and furnish heat and/or air conditioning subject to any requirements or standard relating to, among other things, energy conservation, imposed or established by governmental or cooperative organizations. The Landlord shall provide manual switches for over-riding the control devices and allowing full-time, twenty-four (24) hour operation. (iii) Landlord shall furnish to the Premises at all times, subject to interruptions beyond Landlord's control, electric current as required by the building standard office lighting and receptacles. At all times Tenant's use of electric current shall never exceed the capacity of the feeders to the Building or the risers or wiring installation. Tenant shall not install or use or permit the installation or use of any computer or electronic data processing equipment in the Premises beyond Tenant's current electrical use as of the date hereof without the prior written consent of Landlord. (iv) Landlord shall furnish water for drinking, cleaning and lavatory purposes only. (b) Tenant shall be responsible to pay, at its sole cost and expense, for any utilities and services, including without limitation, air conditioning, electric current, water, and those other items required to be provided by Landlord pursuant to Paragraph 9(a) above or elsewhere in this Lease. The Premises shall be kept clean and in order by Tenant, at its sole cost and expense, and with no deduction by Tenant of any of the Operating Expenses, and to the satisfaction of Landlord, and by persons approved by Landlord in writing or persons employed by Tenant prior to the Commencement Date to perform such work, and no other persons not approved by Landlord shall be permitted to enter the Premises for such purposes. (c) Tenant agrees to cooperate fully at all times with Landlord and to abide by all regulations and requirements which Landlord may prescribe for the use of the above utilities and services. Any failure to pay as described above shall constitute a breach of the obligation to pay rent under this Lease and shall entitle Landlord to the rights herein granted for such breach. (d) Landlord shall not be liable for, and Tenant shall not be entitled to, any abatement or reduction of rent by reason of Landlord's failure to furnish any of the foregoing when such failure is caused by accident, breakage, repairs, strikes, lockouts or other labor disturbance or labor dispute of any character, governmental regulation, moratorium or other governmental action, inability by exercise of reasonable diligence to obtain electricity, water or fuel, or by any other cause beyond Landlord's reasonable, sole control, nor shall any such failure, stoppage or interruption of any such service be construed either as an eviction of Tenant, or relieve Tenant from the obligation to perform any covenant or agreement. In the event of any failure, stoppage or interruption thereof, however, Landlord shall use reasonable diligence to resume service promptly. (e) Upon receipt of request from Tenant given at least 24 hours in advance, Landlord will provide the foregoing utilities to Tenant at such times as such services are not otherwise available. Tenant agrees to pay Landlord such rates and charges as Landlord may from time to time establish for such after hours services inclusive of energy costs, reasonable equipment depreciation and an administrative fee. RULES AND REGULATIONS PARAGRAPH 10 Tenant agrees to abide by all rules and regulations of the Building imposed by Landlord as set forth in Exhibit "C" attached hereto, as the same may be reasonably changed from time to time upon reasonable notice to Tenant. These rules and regulations are imposed for the cleanliness, good appearance, proper maintenance, and good order and reasonable use of the Premises, and the Building and as may be necessary for the enjoyment of the Building by Tenant and its clients, customers and employees. Breach of the rules and regulations shall not be grounds for termination of the Lease unless Tenant continues to breach the same after ten (10) days' written notice by Landlord; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under section 1161, et seq., of the California Code of Civil Procedure. TAXES IN TENANT'S PROPERTY PARAGRAPH 11 Tenant shall be liable for and shall pay ten (10) days before delinquency, all taxes, levies and assessments levied against any personal property or trade fixtures placed by Tenant in or about the Premises. If any such taxes, levies and assessments on Tenant's personal property or trade fixtures are levied against Landlord or Landlord's property or if the assessed value of the Building is increased by the inclusion therein of a value placed upon such personal property or trade fixture of Tenant and if Landlord pays the taxes, levies and assessments based upon such increased assessment, which Landlord shall have the right to do regardless of validity thereof, but only under proper protest if requested by Tenant, Tenant shall upon demand repay to Landlord the taxes, levies and assessments so levied against Landlord, or the proportion of such taxes, levies and assessments resulting from such increase in the assessment; provided that, in any such event Tenant shall have the right, in the 4 Landlord [sig] ------- Tenant [sig] ------- 8 name of Landlord, to bring suit in any court of competent jurisdiction to recover the amount of any such taxes, levies and assessments so paid under protest, and any amount so recovered to belong to Tenant. SUBSTITUTED PREMISES PARAGRAPH 12 Intentionally Omitted. FIRE OR CASUALTY PARAGRAPH 13 In the event the Premises, or access to them, are wholly or partially destroyed by fire or other casualty covered by the form of fire and extended coverage insurance required to be maintained by Landlord hereunder, Landlord shall rebuild, repair or restore the Premises and access thereto to substantially the same condition as when the same were furnished to Tenant, excluding any improvements installed by Tenant, and the Lease shall continue in full force and effect. In the event, however, that the Building is so damaged or destroyed to the extent of more than one-third of its replacement cost and less than two (2) years remain in the term of the Lease, or the Building is damaged to the extent of ten percent (10%) of its replacement cost or more by a casualty not covered by Landlord's fire and extended coverage insurance policy, Landlord may elect to terminate this Lease in lieu of so restoring the Premises. Landlord shall in no event be obligated to make any repairs or replacement of any items other than those items installed by or at the expense of Landlord. If the Premises are rendered totally untenantable, rent shall proportionately abate during the period of reconstruction. Tenant agrees that the provisions of this Lease shall govern any damage or destruction and shall accordingly supersede any contrary statute or rule of law. EMINENT DOMAIN PARAGRAPH 14 In case the whole of the Premises, or such part thereof as shall substantially interfere with Tenant's use and occupancy thereof, shall be taken by any lawful power or authority by exercise of the right of eminent domain, or sold to prevent such taking, either Tenant or Landlord may terminate this Lease effective as of the date possession is required to be surrendered to said authority. Except as provided herein, Tenant shall not because of such taking assert any claim against Landlord or the taking authority for any compensation because of such taking, and Landlord shall be entitled to receive the entire amount of any award without deduction for any estate or interest of Tenant. In such event, Landlord shall, to the extent of the award paid to Landlord, promptly proceed to restore the Premises to substantially their condition prior to such partial taking, and a proportionate allowance shall be made to Tenant for the rent corresponding to the time during which, and to the part of the Premise of which, Tenant shall be so deprived on account of such taking and restoration. Nothing contained in this Paragraph 14 shall be deemed to give Landlord any interest in, or prevent Tenant from seeking any award against the taking authority for, the taking of personal property and fixtures belonging to Tenant or for relocation or business interruption expenses recoverable from the taking authority. ASSIGNMENT AND SUBLETTING PARAGRAPH 15 (a) Tenant shall not voluntarily or involuntarily assign, sublet, mortgage or otherwise encumber all or any portion of its interest in this Lease or in the Premises without obtaining the prior written consent of Landlord, which consent may be withheld at Landlord's sole and absolute discretion, and any such attempted assignment, subletting, mortgage or other encumbrance without such consent shall be null and void and of no effect. Notwithstanding anything to the contrary in the foregoing, any assignment or subletting to an affiliate of Tenant shall not require Landlord's consent. (b) No permitted assignment, subletting, mortgage or other encumbrance of Tenant's interest in this Lease shall relieve Tenant of its obligation to pay the rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or be a consent to any subletting, assignment, mortgage or other encumbrance. Consent to one sublease, assignment, mortgage or other encumbrance shall not be deemed to constitute consent to any subsequent attempted subletting, assignment, mortgage or other encumbrance. (c) If Tenant desires at any time to assign this Lease or to sublet the Premises or any portion thereof other than to an affiliate, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (i) the name of the proposed subtenant or assignee; (ii) the nature of the proposed subtenant's or assignee's business to be carried on in the Premises; (iii) the terms and provisions of the proposed sublease or assignment; and (iv) such financial information as Landlord may reasonable request concerning the proposed subtenant or assignee. 5 Landlord [sig] ------- Tenant [sig] ------- 9 (d) At any time within thirty (30) days after Landlord's receipt of the information specified in subparagraph (c) above, Landlord may by written notice to Tenant elect (i) to sublease the Premises or the portion thereof so proposed to be subleased by Tenant, or to take an assignment of Tenant's leasehold estate hereunder, or such part thereof as shall be specified in said notice, on the same terms stated in this Lease and in turn sublease or assign to the proposed subtenant or assignee on the same terms as those offered by Tenant to the proposed subtenant or assignee, as the case may be; or (ii) to terminate this Lease to the portion (including all) of the Premises so proposed to be subleased or assigned, with a proportionate abatement in the rent payable hereunder; provided, however, that if the proposed sublease will cover less than one-half (1/2) of the area of the Premises covered by this Lease and will have a term of less than two years and will terminate more than two years prior to the expiration date of this Lease, Landlord shall not be entitled to exercise option (ii) above, but may exercise option (i). If Landlord does not exercise any option set forth in this subparagraph (d) within said thirty (30) day period, Tenant may thereafter within ninety (90).days after the expiration of said thirty (30) day period enter into a valid assignment or sublease of the Premises or portion thereof, upon the terms and conditions set forth in the information furnished by Tenant to Landlord pursuant to subparagraph (c) above, subject, however, in each instance, to Landlord's consent, which shall not be unreasonably withheld as set forth in subparagraph (a) above. (e) The voluntary or other surrender of this Lease by Tenant or a mutual cancellation hereof shall not work a merger, and shall at the option of Landlord, terminate all or any existing subleases or subtenancies or shall operate as an assignment to Landlord of such subleases or subtenancies. If Tenant is a corporation which, under the then current guidelines published by the Commissioner of Corporations of the State of California, is not deemed a public corporation, or is an unincorporated association, limited liability company or partnership, the transfer, assignment or hypothecation of any stock or interest in such corporation, association, limited liability company or partnership in the aggregate in excess of twenty-five percent (25%) shall be deemed an assignment within the meaning and provisions of this Paragraph 15. Tenant agrees to reimburse Landlord for Landlord's reasonable costs and attorneys' fees incurred in conjunction with the processing and documentation of any such requested assignment, subletting, transfer, change or ownership or hypothecation of this Lease or Tenant's interest in and to the Premises. ACCESS PARAGRAPH 16 Landlord reserves and shall at any time and all times have the right to enter the Premises to inspect same, to supply any service to be provided by Landlord to Tenant hereunder, to submit said Premises to prospective purchasers or tenants, to post notices of nonresponsibility, to alter, improve or repair the Premises or any other portion of the Building, all without being deemed guilty of an eviction of Tenant and without abatement of rent, and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, provided that the business of Tenant shall not be materially interfered with. Tenant hereby waives any claim for damages for any injury or inconvenience to or interference with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby, for each of the aforesaid purposes, except to the extent the same are caused by the gross negligence or willful misconduct of Landlord or its employees, contractors or agents. 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, and Landlord shall have the right to use any and all means which Landlord may deem proper to open said doors in an emergency in order to obtain entry to the Premises, and any entry to the Premises obtained by Landlord by any of said means shall not be construed or deemed to be a forcible or unlawful entry into, or a detainer of the Premises, or any eviction of Tenant from the Premises or any portion thereof. No provision of the Lease shall be construed as obligating Landlord to perform any repairs, alterations or decoration except as expressly agreed herein or otherwise agreed to by Landlord in writing. SUBORDINATION, ATTORNMENT: ESTOPPEL CERTIFICATES PARAGRAPH 17 (a) This Lease is junior, subject, and subordinate to all mortgages, deeds of trust, and other security instruments of any kind now covering the Building or any portion thereof. Landlord reserves the right to place liens or encumbrances on the Building and/or the Improvements, or any part thereof or interest therein superior in lien and effect to this Lease. This Lease, at the option of Landlord, shall be subject and subordinate to any and all such liens or encumbrances now or hereafter imposed by Landlord without the necessity of the execution and delivery of any further instruments on the part of Tenant to effectuate such subordination. Notwithstanding the foregoing, Tenant covenants and agrees to execute and deliver upon demand such further instruments evidencing such subordination of this Lease as may be requested by Landlord. If Tenant fails to execute such further instruments within ten (10) business days after demand, Landlord shall execute such documents on behalf of Tenant as Tenant's attomey-in-fact. Tenant does hereby make, constitute and irrevocably appoint Landlord as Tenant's attomey-in-fact and in Tenant's name, place and stead, to execute such instruments in accordance with this subparagraph. In addition, Tenant's failure to execute such further instruments within ten (10) business days after demand shall constitute a material breach of this Lease. Notwithstanding such subordination, Tenant's right to quiet possession of the Premises shall not be disturbed so long as Tenant shall pay the rent and observe and perform all of the provisions of this Lease to be observed and performed by Tenant and, upon Tenant's request, shall receive a non-disturbance agreement reasonably satisfactory to Tenant from such superior lienholder which provides 6 Landlord [sig] ------- Tenant [sig] ------- 10 that Tenant's occupancy and possession of the Premises and this Lease will not be disturbed so long as Tenant is not in breach, unless this Lease is terminated pursuant to specific provisions relating thereto contained herein. In the event of the foreclosure of any such lien or encumbrance, Tenant shall attorn to the then owner who owns or acquires title to the Building and will recognize such owner as Landlord under this Lease. Tenant hereby waives any right to terminate this Lease because of any such foreclosure, provided that Tenant shall have received or shall receive a non-disturbance agreement reasonably satisfactory to Tenant from such then owner which provides that Tenant's occupancy and possession of the Premises and this Lease will not be disturbed so long as Tenant is not in breach hereof. (b) Tenant shall at any time and from time to time upon not less than ten (10) days prior notice by Landlord, execute, acknowledge and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modification, that the same is in full force and effect as modified and stating the modifications), and the dates to which the Basic Annual Rent, additional rent and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of Tenant, Landlord is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which Tenant may have knowledge. Any such statement delivered pursuant to this Paragraph may be relied upon by any prospective purchaser of the fee of the Building or any mortgagee, ground lessor or other like encumbrances thereof or any assignee of any such encumbrance upon the Building. (c) In addition, and not in lieu of the foregoing, within ten (10) days after the Commencement Date, Tenant shall execute and deliver to Landlord a certificate substantially in the form of Exhibit "D" attached hereto, indicating thereon any exceptions thereto which Tenant claims to exist at that time. Failure of Tenant to execute and deliver such certificate within said time period shall constitute an acceptance of the Premises and the acknowledgment and agreement by Tenant that the statements included in Exhibit "D" are true and correct without exception. SALE BY LANDLORD PARAGRAPH 18 In the event of a sale or conveyance by Landlord of the Building, the same shall operate to release Landlord from any and all liability under this Lease thereafter accruing. Tenant's right to quiet possession of the Premises shall not be disturbed so long as Tenant shall pay the rent and observe and perform all of the provisions of this Lease to be observed and performed by Tenant, unless this Lease is terminated pursuant to specific provisions relating thereto or contained herein. If any security deposit has been made by Tenant, Landlord may transfer such security deposit to the purchaser, and thereupon Landlord shall be discharged from any further liability in reference thereto. NONLIABILITY AND INDEMNIFICATION OF LANDLORD: INSURANCE PARAGRAPH 19 (a) Landlord's Nonliability. Landlord shall not be liable for injury or damage which may be sustained by the person, goods, wares, merchandise or property of Tenant, its employees, invitees or customers or any other person in or about the Premises caused by or resulting from any peril which may affect the Premises, including without limitation fire, steam, electricity, gas, water, rain, which may leak or flow from or into any part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the same, whether such damage or injury results from conditions arising upon the Premises or upon other portions of the Building, or from other sources. Notwithstanding the foregoing Landlord shall not be relieved of liability for any injury or damage caused by Landlord's sole negligence. Neither Landlord nor any partner, trustee, director, officer, employee, beneficiary, advisor or agent of Landlord, nor any of their respective successors and assigns, shall be personally liable in any manner or to any extent under or in connection with this Lease, and Tenant and its successors and assigns and all other persons claiming by, through or under Tenant shall look solely to Landlord's interest in the Building for the payment to Tenant of any claim or for any performance by Landlord. No trustee, director, officer, employee, beneficiary, advisor or agent of Landlord, nor any of their respective successors or assigns, shall be personally liable in any manner or to any extent under or in connection with this Agreement or the Lease. The foregoing limitation of liability shall be in addition to, and not in limitation of, any applicable limitation of liability by law, agreement or otherwise. (b) Indemnification. To the fullest extent permitted by law, Tenant shall indemnify, defend (with counsel reasonably satisfactory to Landlord) and hold Landlord and its partners, joint venturers, officers, shareholders, directors, agents, contractors, licensees, insurers, attorneys and employees (collectively "Landlord's Related Parties"), harmless against any and all claims, losses, costs, damages, expenses or liabilities arising from any injury or damage to any person or property whatsoever, when such injury or damage has been caused in part or in whole by the act, neglect, fault or omission of Tenant, its partners, joint venturers, shareholders, directors, agents, contractors, licensees, employees, assignees, subtenants or invitees (collectively "Tenant's Related Parties"). This indemnity shall not require payment as a condition precedent to recovery. In addition the indemnity set forth herein shall apply if any person not a party to this Lease shall institute another type of action against Tenant in which Landlord or any of Landlord's Related Parties, involuntarily, and without cause, shall be made a party defendant. The indemnity contained herein shall include, but not be limited to, all attorneys' fees, court costs and consequential damages which are suffered by Landlord or Landlord's Related Parties in any 7 Landlord [sig] ------- Tenant [sig] ------- 11 action, arbitration or Proceeding, including but not limited to the prosecution of any cross-actions or cross complaints on behalf of Landlord or Landlord's Related Parties. (c) Tenant's Insurance. Tenant shall, at its sole cost and expense, maintain in full force and effect at all times during the term of this Lease, at its own expense, for the protection of Tenant and Landlord, as their interest may appear, policies of liability insurance issued by a responsible carrier or carriers acceptable to Landlord which afford the following coverages: (i) Worker's Compensation: Statutory including Employer's liability Coverage; (ii) Comprehensive General liability Insurance, with limits of not less than $2,000,000 including Blanket, Combined Single limit for collateral Liability both bodily injury and Broad Form Properly Damage, Personal Injury, Completed Operations, Products Liability, Fire Damage, Host Liquor Liability (or Liquor Liability, if applicable), contractual liability for any indemnity contained in this Lease and Owned and Non-Owned Automobile Coverage; (iii) All Risk Insurance, including without limitation coverage against Sprinkler Leakage, in an amount sufficient to cover the full cost of replacement of all improvements and betterments to the Premises paid for by Tenant and all Tenant's trade fixtures and other personal property. (iv) Business Interruption Insurance in an amount equal to the Basic Annual Rent and the Additional Rent for a period of at least twelve (12) months commencing with the dale of loss. The proceeds of such insurance shall be paid to Landlord if the Premises are destroyed or rendered inaccessible in whole or in part by a risk insured against by the policy of insurance required to be maintained by Tenant under subparagraph (c)(iii). (d) Certificates of Insurance. Tenant shall deliver to Landlord at least thirty (30) days prior to the time such insurance is first required to be carried by Tenant, and thereafter at least thirty (30) days prior to expiration of each such policy, Certificates of Insurance evidencing the above coverage with limits not less than those specified above. Such Certificates, with the exception of Workers' Compensation, shall add, but not name Landlord, and each of its partners, subsidiaries, affiliates, directors, agents and employees as additional insureds and shall expressly provide that the interest of same therein shall not be affected by any breach by Tenant of any policy provision for which such Certificates evidence coverage. Further, all Certificates shall expressly provide that no less than thirty (30) days prior written notice shall be given Landlord in the event of material alteration to or cancellation of the coverage evidenced by such Certificates. The insurance required by this Paragraph 19 shall be the primary insurance as respects Landlord (and any other additional insured designated by Landlord) and not contributory with any other available insurance. Such Certificate(s) evidencing the liability insurance coverage required under subparagraph (c)(ii) above shall contain an endorsement providing, in substance, that "such instance as is afforded hereby for the benefit of [Landlord] shall be primary and any insurance carried by [Landlord] shall be excess and not contributory." (e) Landlord's Insurance. Landlord shall at all times during the term of this Lease maintain in effect a policy or policies of "All Risk" insurance, together with sprinkler leakage and rental loss coverage, covering the Building, including Landlord's interest in all tenant improvements in the Premises. The cost of such insurance shall be included in the Operating Expenses described in Paragraph 3. (f) Intentionally Omitted. (g) No Co-insurance. If, on account of the failure of Tenant to comply with the provisions of this Paragraph 19, Landlord is adjudged a coinsurer by its insurance carrier, then any loss or damage Landlord shall sustain by reason thereof shall be borne by Tenant shall be immediately paid by Tenant upon receipt of a bill thereof and evidence of such loss. (g) Insurance limits. Landlord makes no representation that the limits of liability specified to be carried by Tenant under the terms of this Lease are adequate to protect Tenant against Tenant's undertaking under this Paragraph 19. In the event Tenant believes that any insurance coverage called for under this Lease is insufficient, Tenant shall provide, at its own expense, such additional insurance as tenant deems adequate. In no event shall the limits of any coverage maintained by Tenant pursuant to this Paragraph 19 be considered as limiting Tenant's liability under this Lease. (h) Force Majeure. Except for Tenant's obligation to pay rent or any other amounts required to be paid by Tenant hereunder, any covenants, conditions, provisions or agreements on the part of Landlord or Tenant to perform any act or thing for the benefit of the other party shall not be deemed breached if Landlord or Tenant, as the case may be, is unable to furnish or perform the same by virtue of a strike, lockout, laws, rules, orders, ordinances, directions, regulations or requirements of any federal, state, county or municipal authority, labor trouble or any other cause whatsoever beyond Landlord's or Tenant's control, nor shall Tenant's rent be abated by reason of such inability on the part of Landlord. 8 Landlord [sig] ------- Tenant [sig] ------- 12 WAIVER OF SUBROGATION PARAGRAPH 20 Landlord and Tenant each hereby waive any and all rights or recovery against the other, or against any other tenant or occupant of the Building or against the officers, employees, agents, representatives, customers and business visitors of such other party or of such other tenant or occupant of the Building, for loss of or damage to such waiving party or its property or the property of others under its control, arising from any cause insured against under any policy of insurance required to be carried by such waiving party pursuant to the provisions of this Lease (or any other policy of insurance carried by such waiving party in lieu thereof) at the time of such loss or damage. The foregoing waiver shall be effective whether or not a waiving party shall actually obtain and maintain the insurance which such waiving party is required to obtain and maintain pursuant to this Lease (or any substitute therefor). Landlord and Tenant shall, upon obtaining the policies of insurance which they are required to maintain under this Lease, give notice to their respective insurance carrier(s) that the foregoing mutual waiver of subrogation is contained in this Lease. ATTORNEYS'FEES PARAGRAPH 21 In the event of any legal action or proceeding brought by either party against the other arising out of this Lease, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action and such amount shall be included in any judgment rendered in such action or proceeding. In addition, in the event Landlord incurs attorneys' fees caused by the breach of any provision of this Lease by Tenant, Landlord shall be entitled to receive from Tenant, as additional rent due upon written notice from Landlord, any sum so expended, whether or not a legal action or proceeding is filed or whether or not such legal action or proceeding is prosecuted to judgment. WAIVER PARAGRAPH 22 No waiver by Landlord of any provision of this Lease or of any breach by Tenant hereunder shall be deemed to be a waiver of any other provision hereof, or of any subsequent breach by Tenant of the same or any other provision. Landlord's consent to or approval of any act by Tenant requiring Landlord's consent or approval shall not be deemed to render unnecessary the obtaining of Landlord's consent to or approval of any subsequent act of Tenant. No act or thing done by Landlord or Landlord's agents during the term of this Lease shall be deemed an acceptance of a surrender of the Premises, unless done in writing signed by Landlord. The delivery of the keys to any employee or agent of Landlord shall not operate as a termination of the Lease or a surrender of the Premises, unless deemed so by Landlord. The acceptance of rent by Landlord following a breach of this Lease shall not constitute a waiver by Landlord of such breach or any other breach unless such waiver is expressly stated in writing signed by Landlord. NOTICES PARAGRAPH 23 All notices which Landlord or Tenant may be required, or may desire, to serve on the other, may be served by personal or courier service reliable overnight courier service or as an alternative to personal or courier service, by mailing the same by registered or certified mail, postage prepaid, addressed as set forth in Item 13 of the Basic Lease Provisions, or addressed to such other address or addresses as either Landlord or Tenant may from time to time designate to the other in writing. All notices shall be deemed effective upon receipt. if personally delivered, notices shall be deemed received at the time of delivery. If any notice is sent by mail, the same shall be deemed fully delivered and received seventy-two (72) hours after mailing as provided above. INSOLVENCY OR BANKRUPTCY PARAGRAPH 24 In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency, or reorganization proceeding. DEFAULT PARAGRAPH 25 (a) The occurrence of any of the following shall constitute a material default and breach of this Lease by Tenant: (i) Any failure by Tenant to pay the rent or to make any other payment required to be made by Tenant hereunder when due, if such failure continues for three (3) business days after notice has been 9 Landlord [sig] ------- Tenant [sig] ------- 13 received by Tenant that such amount is past due; provided, however, that any such notice shall be in lieu of and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure.; (ii) The abandonment or vacation of the Premises by Tenant; (iii) Any failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant, where such failure continues for fifteen (15) days (except where a different period of time is specified in this Lease) after written notice by Landlord to Tenant; provided, however, that any such notice shall be in lieu of and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure. If the nature of such default is such that the same cannot reasonably be cured within such fifteen-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; (iv) Tenant makes or had made or furnished or has furnished any warranty, representation or statement to Landlord in connection with this Lease, or any other agreement to which Tenant and Landlord are parties, which is or was knowingly false or misleading in any material respect when made or furnished; (v) Intentionally Omitted; (vi) Tenant becomes insolvent as defined in the Federal Bankruptcy Code, admits in writing its insolvency or its present or prospective inability to pay its debts as they become due, in unable to or does not pay all or any material portion (in number or dollars amount) of its debts as they become due, permits or suffers a judgment to exist against it which affects Tenant's ability to conduct its business in the ordinary course (unless enforcement thereof is stayed pending appeal), makes or proposes an assignment for the benefit of creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts, proposes any such moratorium, extension or compositions, or commences or proposes to commence any bankruptcy, reorganization or insolvency proceeding, or other proceeding under any federal, state or other law for the relief of debtors; (vii) Tenant fails to obtain the dismissal, within sixty (60) days after the commencement thereof, any bankruptcy, reorganization or insolvency proceeding, or other proceeding under any law for the relief of debtors, instituted against it by one or more third parties or fails actively to oppose any such proceeding, or in any such proceeding, defaults or files an answer admitting the material allegation upon which the proceeding was based or alleges its willingness to have an order for relief entered or its desire to seek liquidation, reorganization or adjustment of any of its debts; (viii) Any receiver, trustee or custodian is appointed to take possession of all or any substantial portion of the assets of Tenant, or any committee of Tenant's creditors, or any class thereof, is formed for the purpose of monitoring or investigating the financial affairs of Tenant or enforcing such creditors' rights. (b) In the event of any such default by Tenant, then in addition to any other remedies available to Landlord at 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 the Lease then Landlord may recover from Tenant: (i) The worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (ii) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves reasonably could have been avoided; plus (iii) The worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss Tenant proves reasonably could have been avoided; plus (iv) 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 (v) 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. (c) As used in subparagraphs (i) and (ii) above, the "worth at the time of award" is computed by allowing interest at the rate specified in Paragraph 34, below. As used in subparagraph (iii) 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%). (d) In the event of any such default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. 10 Landlord [sig] ------- Tenant [sig] ------- 14 (e) 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 in this Paragraph 25, Landlord may from time to time, without terminating this Lease, either recover all rental as it becomes due or relet the Premises or any part thereof for such term and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable with the right to make alterations and repairs to the Premises. (f) In the event that Landlord shall elect to so relet, then rentals received by Landlord from such reletting shall be applied; first to the payment of any indebtedness other 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. Should reletting, during any month to which the payment of rent is applied hereunder, result in the actual payment of rentals at less than the rent payable during that month by Tenant hereunder; then Tenant shall pay such deficiency to Landlord immediately upon demand therefore by Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall also pay to Landlord as soon as ascertained, any costs and expenses incurred by Landlord in such reletting or in making such alteration and repairs not covered by the rental received from such reletting. (g) No re-entry or taking possession of the Premises by Landlord pursuant to this Paragraph 25 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. (h) In the event of any default, Tenant hereby waives any statutory right of redemption to the fullest extent permitted by law. (i) All covenants and agreements to be performed by Tenant under this Lease shall be performed by Tenant in its sole cost and expense, without any abatement or right of setoff. If Tenant fails to pay any sum of money or fails to perform any other act on its part to be performed under this Lease and such failure continues beyond any grace period set forth herein, in addition to any other rights or remedies Landlord may have, Landlord may, at its election, make the payment or perform such act. Such payment or act shall not give rise to any responsibility of Landlord to continue making the same or similar payments or performing the same or similar acts and Tenant shall, promptly and upon demand from Landlord, reimburse Landlord for all sums paid by Landlord, together with interest thereon, at the maximum rate permitted by law. HOLD OVER PARAGRAPH 26 If Tenant holds over after the expiration or earlier termination of the term hereof without the express written consent of Landlord, Tenant shall become a Tenant at sufferance only at the then prevailing market rate as determined by Landlord in its sole and absolute discretion for the Premises in effect upon the date of such expiration or earlier termination (subject to adjustment as provided in Paragraphs 2 and 3 hereof and prorated on a daily basis), and otherwise upon the terms, covenants and conditions herein specified, so far as applicable. Acceptance by Landlord of rent after such expiration or earlier termination shall not constitute a consent to a holdover hereunder or result in a renewal. The foregoing provisions of this Paragraph are in addition to and do not affect Landlord's right of reentry or any other rights of Landlord hereunder or as otherwise provided by law. CONDITION OF PREMISES PARAGRAPH 27 Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the Premises or the Building with respect to its suitability of any part for the conduct of Tenant's business. Tenant further acknowledges that Tenant has previously occupied the Premises and is familiar with the Premises. Tenant hereby accepts the Premises in their "AS IS" condition. The taking of possession of the Premises by Tenant shall conclusively establish that the Premises, the Building and the Improvements were at such time in clean, neat and sanitary condition, and in good order and repair. QUIET POSSESSION PARAGRAPH 28 Upon Tenant paying the rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Tenant's part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all of the provisions of this Lease. 11 Landlord [sig] ------- Tenant [sig] ------- 15 DAMAGE TO TENANT'S PROPERTY PARAGRAPH 29 Landlord or its agents shall not be liable for any damage to Tenant's property entrusted to employees of Landlord or its agents, nor for loss of or damage to any property by theft or otherwise, nor for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or sub-surface or from any other place or resulting from dampness or any other cause whatsoever in the Building, except to the extent caused by the gross negligence or willful misconduct of Landlord or its agents. Landlord and its agents shall not be liable for interference with the light or other incorporeal hereditaments, nor shall Landlord be liable for any latent defect in the Premises, the Building or the Improvements. Tenant shall give prompt notice to Landlord in case of fire or accidents in the Premises or in the Building or the Improvements, or of defects therein or in the fixtures or equipment. CONFLICT OF LAWS PARAGRAPH 30 This Lease shall be governed by and construed pursuant to the laws of the State of California with venue for any action in the County of Orange, State of California. COMMON FACILITIES; PARKING PARAGRAPH 31 Tenant shall have the non-exclusive right, in common with others, to the use of common entrances, lobbies, elevators, ramps, drives, stairs and similar access and serviceways and other common facilities in and adjacent to the Building, subject to such reasonable rules and regulations as may be adopted by Landlord, from time to time. Tenant shall have the exclusive right to the use of the parking spaces in any parking areas located on the Premises, subject to any existing rights by third parties including, but not limited to, governmental authorities to the use of the parking spaces in any parking areas located on the Premises. SUCCESSORS AND ASSIGNS PARAGRAPH 32 Except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. BROKERS PARAGRAPH 33 Tenant warrants that it has had no dealing with any real estate broker or agent in connection with the negotiation of this Lease, excepting only the broker named in Item 10 of the Basic Lease Provisions, and that it knows of no other real estate broker or agent who is or might be entitled to a commission in connection with this Lease. Other than those listed in Item 10 of the Basic Lease Provisions, should any real estate broker claim a right to real estate commissions through Tenant, Tenant shall either pay such commission to such real estate broker or reimburse Landlord for payment of such commission, at Landlord's discretion, and indemnify, defend and hold Landlord harmless from and against any such claim. Other than those listed in Item 10 of the Basic Lease Provisions, should any real estate broker claim a right to real estate commissions through Landlord, Landlord shall either pay such commission to such real estate broker or reimburse Tenant for payment of such commission, at Tenant's discretion, and indemnify, defend and hold Tenant harmless from and against any such claim. Except as otherwise provided herein, Landlord covenants and agrees to pay all real estate commissions due in connection with this Lease to such broker. NAME PARAGRAPH 34 Upon the expiration or earlier termination of this Lease, Landlord shall rename the Building so as to delete any reference to Tenant. EXAMINATION OF LEASE PARAGRAPH 35 Submission of this Lease for examination or signature by Tenant does not constitute a reservation of or option for lease, and it is not effective as a Lease or otherwise until execution by Tenant and Landlord and delivery to Tenant of a fully executed original of the Lease. 12 Landlord [sig] ------- Tenant [sig] ------- 16 INTEREST ON TENANT'S OBLIGATIONS; LATE CHARGE PARAGRAPH 36 (a) Any amount due from Tenant to Landlord or Landlord to Tenant which is not paid when due shall bear interest at the rate of three percent (3%) over the Reference Rate announced by the Bank of America for the month prior to the month payment is due, or, if less, at the maximum rate per annum permitted under applicable law from the date such payment is due until paid, but the payment of such interest shall not excuse or cure the default. In no case, however, shall the interest rate charged be usurious. (b) In the event Tenant is more than ten (10) days late in paying any monetary sum due under this Lease, Tenant shall pay Landlord a late charge equal to five percent (5%) of the delinquent monetary sum. The parties agree that the amount of such late charge represents a reasonable estimate of the cost and expense that would be incurred by Landlord in processing each delinquent payment by Tenant and that such late charge shall be paid to Landlord as liquidated damages for each delinquent payment pursuant to California Civil Code Section 1671. The parties further agree that the payment of late charges and the payment of interest provided for in subparagraph (a) are distinct and separate from one another in that the payment of interest is to compensate Landlord for the use of Landlord's money by Tenant, while the payment of late charges is to compensate Landlord for the additional administrative expense incurred by Landlord in handling and processing delinquent payments. TIME PARAGRAPH 37 Time is of the essence of this Lease and each and all of its provisions. DEFINED AND MARGINAL HEADINGS PARAGRAPH 38 The words "Landlord" and "Tenant" as used herein shall include the plural as well as the singular. If more than one person is named as Tenant the obligations of such persons are joint and several. The marginal headings and titles to the articles of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof. PRIOR AGREEMENTS; SEPARABILITY PARAGRAPH 39 This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. If any term or provision of this Lease, the deletion of which would not adversely affect the receipt of any material benefit by either party hereunder, shall be held invalid or unenforceable to any extent, the remainder of this Lease shall not be affected thereby and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. CORPORATE AUTHORITY PARAGRAPH 40 If Tenant executes this Lease as a corporation, each of the persons executing this Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly authorized and existing corporation, that Tenant has and is qualified to do business in California, that the corporation has the full right and authority to enter into this Lease, and that each person signing on behalf of the corporation is authorized to do so. NO LIGHT, AIR OR VIEW EASEMENT PARAGRAPH 41 Any diminution or setting off of light, air or view by any structure which may be erected on lands adjacent to the Building shall in no way affect this Lease or impose any liability on Landlord. AMERICANS WITH DISABILITIES ACT OF 1990 PARAGRAPH 42 The parties acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) and regulations and guidelines promulgated thereunder, as all of the same may be amended and supplemented from time to time (collectively referred to herein as the "ADA"), establish requirements under Title III of the 13 Landlord [sig] ------- Tenant [sig] ------- 17 ADA ("Title III") pertaining to business operations, accessibility and barrier removal, and that such requirements may be unclear and may or may not apply to the Premises and Building depending on, among other things: (1) whether Tenant's business operations are deemed a "place of public accommodation" or "commercial facility"; (2) whether compliance with such requirements is "readily achievable" or "technically infeasible"; and (3) whether a given alteration affects a "primary function area" or triggers so-called "path of travel" requirements. The parties acknowledge and agree that Tenant has been provided an opportunity to inspect the Premises and Building to a degree sufficient to determine whether or not the Premises and Building, in their condition as of the date hereof, deviate in any manner from the ADA Accessibility Guidelines ("ADAAG") or any other requirements under the ADA pertaining to the accessibility of the Premises or the Property. Tenant further acknowledges and agrees that, except as may otherwise by specifically provided below, Tenant accepts the Premises and Building in "as-is" condition and agrees that Landlord makes no representation or warranty as to whether the Premises or Building conform to the requirements of the ADAAG or any other requirements under the ADA pertaining to the accessibility of the Premises or the Property. Tenant has prepared or reviewed the plans and specifications for Tenant's Work and has independently determined that such plans and specifications are in conformance with the ADAAG and any other requirements of the ADA. Tenant further acknowledges and agrees that to the extent that Landlord has prepared, reviewed or approved any of those plans and specifications, such action shall in no event be deemed any representation or warranty that the same comply with any requirements of the ADA. Tenant shall be solely responsible for all Title III compliance and costs in connection with the Premises, including structural work, if any, and including any leasehold improvements or other work to be performed in the Premises under or in connection with this Lease and shall also be solely responsible for the cost of any so-called Title III "path of travel" requirements triggered by any construction activities or alterations in the Premises, provided that such cost is the result of the specific and unique use of the Premises by Tenant, otherwise Landlord and Tenant shall allocate the obligation to pay for such costs amortized over such reasonable period as Landlord shall determine with a return on capital at the rate of 10% per annum on the unamortized balance. Tenant shall be solely responsible for all other requirements under the ADA relating to Tenant or any affiliates or persons or entities related to Tenant (collectively, "Affiliates"), operations of Tenant or Affiliates, or the Premises, including, without limitation, requirements under Title I of the ADA pertaining to Tenant's employees. HAZARDOUS SUBSTANCES PARAGRAPH 43 (a) (i) "Claim" shall mean and include any actual or threatened demand, cause of action, proceeding or suit (A) for damages (actual or punitive), losses, injuries to person or property, damages to natural resources, fines, penalties, interest, contribution or settlement; (B) for the costs of site investigations, feasibility studies, information requests, health or risk assessments or Response (as hereinafter defined) actions; and (C) for enforcing insurance, contribution or indemnification agreements. (ii) "Environmental Laws" shall mean and include all federal, state and local statutes, ordinances, regulations and rules relating to environmental quality, health, safety, contamination and clean-up, including, without limitation, the Clean Air Act, as amended, 42 U.S.C. Section 7401 et. seq.; the Federal Water Pollution Control Act, as amended 33 U.S.C. Section 1251 et. seq. and the Water Quality Act of 1987, as amended; the Federal Insecticide, Fungicide, and the Rodenticide Act, as amended ("FIFRA"), 7 U.S.C. Section 136 et seq.; the Marine Protection, Research, and Sanctuaries Act, as amended 33 U.S.C. Section 1401 et. seq., the National Environmental Policy Act, as amended 42 U.S.C. Section 4321 et seq.; the Noise Control Act, as amended 42 U.S.C. Section 4901 et seq.; the Occupational Safety and Health Act, as amended 29 U.S.C. Section 651 et seq.; the Resource Conservation and Recovery Act, as amended ("RCRA"), 42 U.S.C. Section 6901 et seq.; the Safe Drinking Water Act, as amended 42 U.S.C. Section 300f et seq.; the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended ("TSCA"), 15 U.S.C. Section 2601 et seq.; the Atomic Energy Act, as amended 42 U.S.C. Section 2011 et seq.; and the California Health and Safety Code and/or any other California statutes or their successors regarding these issues and state superlien and environmental clean-up statutes, with implementing regulations and guidelines. Environmental Laws shall also include all state, regional, county, municipal and other local laws, regulations and ordinances insofar as they are equivalent or similar to the federal laws recited above or purport to regulate Hazardous Materials (as defined below). (iii) "Hazardous Materials" shall mean and include the following, including mixtures thereof: any hazardous substance, pollutant, contaminant, waste, by-product or constituent regulated under any of the Environmental Laws; oil and petroleum products and natural gas, natural gas liquids, liquefied natural gas and synthetic gas usable for fuel; pesticides regulated under any of the Environmental Laws; asbestos and asbestos-containing materials, PCBS and other substances regulated under any of the Environmental Laws; source material, special nuclear material, by-product material and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act or the Nuclear Waste Policy Act; chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 et seq.; and industrial process and pollution control wastes, whether or not hazardous within the meaning of RCRA. 14 Landlord [sig] ------- Tenant [sig] ------- 18 (iv) "Manage" or "Management" means to generate, manufacture, process, treat, store, use, re-use, refine, recycle, reclaim, blend or burn for energy recovery, incinerate, accumulate speculatively, transport, transfer, dispose of or abandon Hazardous Materials. (v) "Release" or "Released" shall mean any actual or threatened spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping or disposing of Hazardous Materials into the environment, as "environment" is defined in CERCLA. (vi) "Response" or "Respond" shall mean action taken in compliance with Environmental Laws to correct, remove, remediate, clean-up, prevent, mitigate, monitor, evaluate, investigate, assess or abate the Release of a Hazardous Material. (b) During the Term of this Lease: (i) Tenant shall at its own cost materially comply with all Environmental Laws (provided, however, the foregoing materiality standard shall not limit or restrict Tenant's liability or indemnification obligations hereunder); (ii) Tenant shall not conduct or authorize the Management of any Hazardous Materials on the Premises, including installation of any underground storage tanks, without prior written disclosure to and approval by Landlord, which approval shall not be unreasonably withheld or delayed (provided, however, the foregoing shall not limit or restrict Tenant from storing and using customary quantities of routine office and cleaning supplies so long as such storage and use is in compliance with all Environmental Laws); (iii) Tenant shall not take any action that would subject the Premises to permit requirements under RCRA or any other Environmental Laws for storage, treatment or disposal of Hazardous Materials; (iv) Tenant shall not dispose of Hazardous Materials in dumpsters provided by Landlord for Tenant use in or on any other locations of the Premises; (v) Tenant shall not discharge Hazardous Materials into drains or sewers; (vi) Tenant shall not cause or allow the Release of any Hazardous Materials on, to or from the Premises; and (vii) Tenant shall at its own cost arrange for the lawful transportation and off-site disposal of all Hazardous Materials that is generated or used at or on the Premises, including, but not limited to Hazardous Materials disclosed to and approved by Landlord. (c) During the Term, Tenant shall promptly provide Landlord with copies of all summons, citations, directives, information, inquiries or requests, notices of potential responsibility, notices of violation or deficiency, orders or decrees, Claims, complaints, investigations, judgments, letters, notices of environmental liens or Response actions in progress and other communications, written or oral, actual or threatened, from the United States Environmental Protection Agency, Occupational Safety and Health Administration, other federal, state or local agency or authority, or any other entity or individual, concerning the following: (i) any Release of a Hazardous Material on, to or from the Premises; (ii) the imposition of any lien on the Premises; or (iii) any alleged violation of or responsibility under Environmental Laws. Landlord and Landlord's employees shall have the right to enter the Premises and conduct appropriate inspections or tests in order to determine Tenant's compliance with Environmental Laws. (d) Upon written request by Landlord, Tenant shall provide Landlord with the results of appropriate reports and tests previously obtained by Tenant, with transportation and disposal contracts for Hazardous Materials, with any permits issued under Environmental Laws, and with any other applicable documents to demonstrate that Tenant complies with all Environmental Laws relating to the Premises. (e) Landlord and its agents and representative shall have access to the Premises and to the books and records of Tenant (and any occupant of the Premises claiming by, through or under Tenant) relating to Hazardous Materials for the Purpose of ascertaining the nature of the activities being conducted thereon and to determine the type, kind and quantity of all products, materials and substances brought onto the Premises or made or produced thereon. Landlord and its agents and representatives shall have the right to take samples in quantity sufficient for scientific analysis of all products, materials and substances present on the Premises, including, but not limited to, samples of products, materials or substances brought onto or made or produced on the premises by Tenant or an occupant claiming by, through or under Tenant or otherwise present on the Premises. And, further, notwithstanding any provision of this Lease or applicable statutes or judicial decisions to the contrary, with respect to any assignment, subletting, grant of license or concession or any other permission to use the Premises by any person other then Tenant, Landlord shall have the right to withhold Landlord's consent thereto if, in Landlord's sole judgment and discretion, the assignee, subtenant, licensee, concessionaire or such other person is not capable of satisfying or is not sufficiently qualified to satisfy the requirements of this Paragraph 43. Any assignment, sublease, license or other permission to use the Premises from which Landlord withholds its consent as provided in this Paragraph 43 shall be voidable at Landlord's sole option. 15 Landlord [sig] ------- Tenant [sig] ------- 19 (f) If Tenant's Management of Hazardous Materials at the Premises (i) gives rise to liability or to a Claim under any Environmental Law; (ii) causes a significant public health effect; or (iii) creates a nuisance, Tenant shall promptly take all necessary or applicable action in Response. (g) Tenant shall indemnify, defend and hold harmless Landlord, its beneficiaries, its lenders, any managing agents and leasing agents of the Premises, and their respective agents, partners, officers, directors, shareholders, members and employees, from all Claims arising from or attributable to the following: (i) the Release by Tenant, its agents, contractors, employees or invitees of any Hazardous Materials at or on the Premises or the violation by Tenant, its agents, contractors or employees of any Environmental Laws (including, without limiting the generality thereof, any cost, claim, liability or defense expended in remediation required by a governmental authority, or by reason of the release, escape, seepage, leakage, discharge or migration of any Hazardous Material on or from the Premises or violation of any Environmental Laws); or (ii) any breach of Tenant of any of its warranties, representations or covenants in this Paragraph 43. Tenant's obligations hereunder shall survive the expiration or earlier termination of this Lease. (h) Landlord shall indemnify, defend and hold harmless Tenant, its agents, contractors and employees from all Claims arising from or attributable to the Release of any Hazardous Materials at or on the Premises by Landlord, its agents, contractors or employees of any Environmental Laws during the Term of this Lease (including, without limiting the generality thereof, any cost, claim, liability or defense expended in remediation required by a governmental authority, or by reason of the release, escape, seepage, leakage, discharge or migration of any Hazardous Material on or from the Premises or violation of any Environmental Laws). Landlord's indemnity hereunder shall survive the expiration or earlier termination of this Lease. NEGOTIATED AGREEMENT PARAGRAPH 44 The drafting and negotiating of this Agreement has been participated in by each of the parties, for all purposes, this Agreement shall be deemed to have been drafted jointly by the parties. MORTGAGEE PROTECTION PARAGRAPH 45 No act or failure to act on the part of Landlord which would otherwise entitle Tenant to be relieved of its obligations hereunder or to terminate this Lease shall result in such release or termination unless: (a) Tenant has given notice by registered or certified mail of any beneficiary of any deed of trust or mortgage covering the Building, whose address has been furnished to Tenant; and (b) such beneficiary has been afforded a reasonable opportunity to cure the default by Landlord (which in no event shall be less than sixty (60) days), including, if necessary to effect the cure, time to obtain possession of the Building by a power of sale or judicial foreclosure, provided that such foreclosure remedy is diligently pursued. ADDENDA PARAGRAPH 46 Intentionally Omitted. MITCHELL LAND AND IMPROVEMENT COMPANY, INC., a California corporation By: [SIG] ----------------------------------------- Its: President ------------------------------------- LANDLORD REMEDY TEMP, INC., a California corporation By: [SIG] ----------------------------------------- Its: Sr. VP, CFO ------------------------------------- TENANT 16 Landlord [sig] ------- Tenant [sig] ------- 20 EXHIBIT A-1 INTENTIONALLY OMITTED END OF EXHIBIT A-1 A-1 Landlord [sig] ------- Tenant [sig] ------- 21 EXHIBIT A-2 INTENTIONALLY OMITTED END OF EXHIBIT A-2 2 Landlord [sig] ------- Tenant [sig] ------- 22 EXHIBIT A-3 INTENTIONALLY OMITTED END OF EXHIBIT A-3 3 Landlord [sig] ------- Tenant [sig] ------- 23 EXHIBIT A-4 INTENTIONALLY OMITTED END OF EXHIBIT A-4 4 Landlord [sig] ------- Tenant [sig] ------- 24 EXHIBIT B INTENTIONALLY OMITTED END OF EXHIBIT B B-1 Landlord [sig] ------- Tenant [sig] ------- 25 EXHIBIT C RULES AND REGULATIONS 1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways, corridors, or halls of the Building shall not be obstructed or used for any purpose other than ingress and egress. The halls, passages, entrances, elevators, stairways, balconies and roof are not for the use of the general public, and Landlord shall in all cases retain the right to control and prevent access thereto of all persons whose presence, in the judgment of Landlord, shall be prejudicial to the safety, character, reputation, and interest of the Building and the tenants, provided that nothing herein contained shall be construed to prevent such access to persons with whom Tenant normally deals only for the purpose of conducting its business on the Premises (such as clients, customers, office supplies and equipment vendors, and the like) unless such persons are engaged in illegal activities. Neither Tenant nor any employee of Tenant shall go up on the roof of the Building without the prior written consent of Landlord. 2. No awnings or other projections shall be attached to the outside walls of the Building. No curtains blinds, shades or screens shall be attached to or hung in, or used in connection with, any window or door of the Premises other than Landlord's standard window coverings. All electrical ceiling fixtures hung in offices or spaces along the perimeter of the Building must be fluorescent, of quality, type, design, and bulb color approved by Landlord. Neither the interior nor the exterior of any window shall be coated or otherwise unscreened without the prior written consent of Landlord. 3. No sign, advertisement, notice or handbill shall be exhibited, distributed, painted, or affixed by Tenant on, about, or from any part of the Premises or the Building without the prior written consent of Landlord. If Landlord shall have given such consent at the time, whether before or after the execution of this Lease, such consent shall in no way operate as a waiver or release of any of the provisions hereof or of this Lease, and shall be deemed to relate only to the particular sign, advertisement, or notice so consented to by Landlord and shall not be construed as dispensing with the necessity of obtaining the specific written consent of Landlord with respect to each and every such sign, advertisement, or notice other than the particular sign, advertisement, or notice, as the case may be, so consented to by Landlord. In the event of the violation of the foregoing by Tenant, Landlord may remove or stop same without any liability, and may charge the expense incurred in such removal or stopping to Tenant. Interior signs on doors and directory tablet shall be inscribed, painted, or affixed for Tenant by Landlord and shall be of a size, color, and style acceptable to Landlord. The directory tablet 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. Nothing may be placed on the exterior of corridor walls or corridor doors other than Landlord's standard lettering. 4. The sashes, sub doors, skylights, windows, and door that reflect or admit light and air into halls, passageways or other public places in the Building shall not be covered or constructed by Tenant, nor shall any bottles, parcels, or other articles be placed on the windowsills. Tenant shall see that the windows, transoms, and doors of the Premises are closed and securely locked before leaving the Building and must observe strict care not to leave windows open when it rains. Tenant shall exercise extraordinary care and caution that all water faucets or water apparatus are entirely shut off before Tenant or Tenant's employees leave the Building, and that all electricity, gas, or air shall likewise be carefully shut off, so as to prevent waste or damage. Tenant shall cooperate with Landlord in obtaining maximum effectiveness of the cooling system by closing drapes when the sun's rays fall directly on the windows of the Premises. Tenant shall not tamper with or change the setting of any thermostats or temperature control valves. 5. The toilet rooms, water and wash closets, and other plumbing fixtures shall not be used for any purpose other than those for which they were constructed, and no sweepings, rubbish, rags or other substances shall be thrown therein. All damages resulting from any misuse of the fixtures shall be borne by Tenant who, or whose subtenants, assignees, or any of their servants, employees, agents, visitors or Licensees, shall have caused the same. 6. Tenant shall not mark, paint, drill into, or in any way deface any part of the Premises, the Building, or the Project. No boring, cutting, or stringing of wires or laying of linoleum or other similar floor coverings shall be permitted, except with the prior written consent of Landlord, and as Landlord may direct. 7. No bicycles, vehicles, birds, or animals of any kind shall be brought into or kept in or about the Premises, and no cooking shall be done or be permitted by Tenant on the Premises, except that the preparation of coffee, tea, hot chocolate, and similar items for Tenant and its employees shall be permitted provided power shall not exceed that amount which can be provided by a 30 amp circuit. Microwave ovens are allowed; however, Tenant shall not cause or permit any unusual or objectionable odors to be produced or permeate the Premises. Smoking or carrying lighted cigars, cigarettes, or pipes in the elevators of the Building is prohibited. 8. The Premises shall not be used for manufacturing or for the storage merchandise except as such storage may be incidental to the permitted use of the Premises. Tenant shall not occupy or permit any portion of the 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 barber or manicure shop, or as an employment bureau without the express written consent of Landlord. Tenant shall not engage or pay any employee on the Premises except those actually working for Tenant on the Premises, nor advertise for laborers giving an address at the Premises. The Premises shall not be used for lodging or sleeping or for any immoral or illegal purposes. C-1 Landlord [sig] ------- Tenant [sig] ------- 26 9. Tenant shall not 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 use of any musical instrument, radio, phonograph, unusual noise, or in any other way. Tenant shall not throw anything out of doors, windows, or skylight, or down the passageways. 10. Neither Tenant, subtenants or assignees, nor any of their servants, employees, agents, visitors, or licensees, shall at any time bring or keep upon the Premises any inflammable, combustible, or explosive fluid, chemical, or substance. 11. No additional locks or bolts of any kind shall be placed upon any of the doors or windows by Tenant nor shall any changes be made in existing locks or the mechanisms thereof. Tenant must, upon the termination of his tenancy, restore to Landlord all keys to offices and toilet rooms, either furnished to or otherwise procured by Tenant, and in the event of the loss of keys so furnished, Tenant shall pay to Landlord the cost of replacing the same or of changing the lock or the locks opened by such lost key, if Landlord shall deem it necessary to make such changes. 12. All removal, or the carrying in or out of any safes, freight, furniture, or bulky matter of any description, must take place during the hours which Landlord shall determine from time to time, with the express written consent of Landlord. The moving of safes or other fixtures or bulky matter of any kind must be done upon previous notice to the superintendent of the Building and under his supervision, and the persons employed by Tenant for such work must be acceptable to Landlord. Landlord reserves the right to inspect all safes, freight, or other bulky articles to be brought into the Building and to exclude from the Building all safes, freight, or other bulky articles which violate any of these Rules and Regulations or the Lease. Landlord reserves the right to prescribe the weight and position of all safes which must be placed upon supports approved by Landlord to distribute the weight. 13. Tenant shall not purchase spring water, ice, towels, janitorial, or maintenance or other like services, from any person or persons not approved by Landlord other than those persons providing such services as of the Commencement Date. 14. Landlord shall have the right to prohibit advertising by Tenant which, in Landlord's opinion, tends to impair the reputation of the Building or the Project or its desirability as an office location. Upon written notice from Landlord, Tenant shall refrain from or discontinue such advertising. 15. Any person employed by Tenant to do janitorial work shall, while in the Building and outside of the Premises, be subject to and under the control and direction of the superintendent of the Building (but not as an agent or servant of said superintendent or of Landlord), and Tenant shall be responsible for all acts of such persons, 16. All doors opening onto public corridors shall be kept closed, except when in use for ingress and egress. 17. The requirements of Tenant will be attended to only upon application to the Property Manager's office in the building. 18. Canvassing, soliciting, and peddling in the Building are prohibited, and Tenant shall report and otherwise cooperate to prevent the same. 19. All office equipment of any electrical or mechanical nature not currently in use by Tenant as of the date hereof shall be placed by Tenant in the Premises in settings reasonably approved by Landlord, to absorb or prevent any vibration, noise, and annoyance. 20. No air conditioning unit or other similar apparatus shall be installed or used by Tenant without the prior written consent of Landlord. 21. There shall not be used in any space, or in the public halls of the building, either by Tenant or others, any hand trucks except those equipped with rubber tires and rubber side guards. 22. No vending machines of any description shall be installed, maintained, or operated upon the Premises without the written consent of Landlord. 23. The scheduling of Tenant move-ins shall be subject to the reasonable discretion of Landlord. 24. If Tenant desires telephone or telegraph connections, Landlord will direct electricians as to where and how the wires are to be introduced. No boring or cutting for wires or otherwise shall be made without directions from Landlord. 25. The term "personal goods or services vendors" as used herein, means persons who periodically enter the Building for the purpose of selling goods or services to Tenant, other than goods or services which are used by Tenant only for the purpose of conducting its business on the Premises. "Personal goods or services" include, but are not limited to, drinking water and other beverages, food, barbering services, and shoe shining services. Landlord reserves the right to prohibit personal goods and services vendors from access to the Building (other than those vendors providing such personal goods and services as of the Commencement Date) except upon such C-2 Landlord [sig] ------- Tenant [sig] ------- 27 reasonable terms and conditions, including but not limited to, the payment of a reasonable fee and provision for insurance coverage, as are related to the safety, care, and cleanliness of the Building, the preservation of good order thereon, and the relief of any financial or other burden on Landlord occasioned by the presence of such vendors or the sale by them of personal goods or services to Tenant or its employees. If necessary for the accomplishment of these purposes, Landlord may exclude a particular vendor entirely or limit the number of vendors who may be present at any one time in the Building. END OF EXHIBIT C C-3 Landlord [sig] ------- Tenant [sig] ------- 28 EXHIBIT D TENANT'S CERTIFICATE STATEMENT OF TENANT RELEASE Date: , 19 -------------- -- Re: Address: ---------------- ------------------------ For Premises in: -------- ------------------------ Gentlemen: It is our understanding that you have made certain commitments to Landlord of the subject premises and, as a condition thereof, have required this certification by the undersigned. The undersigned, as Tenant under that certain Office Lease dated ---------- 19 , made and entered into between Mitchell Land and Improvement Company, Inc., -- as Landlord, and the undersigned, as Tenant, hereby ratifies said Lease and certifies that the undersigned has accepted possession and entered into occupancy of the Premises described in said Lease and the minimum rental in the monthly amount of $ was payable from that or an earlier date; that said ------ Lease is in full force and effect and has not been assigned, modified, supplemented, or amended in any way; that the same represents the entire agreement between the parties as to the leasing; that the terms of said Lease to be performed by Landlord as of the date set forth above have been fully satisfied, including without limitation, that the improvements and space required to be furnished according to said Lease have been completed in all respects, that Landlord has fulfilled all of its duties of an inducement nature, that all required contributions by Landlord to Tenant on account of Tenant's improvements have been paid and received; that on this date there are no existing defenses or offsets which the undersigned has against the enforcement of said Lease by Landlord; that the rental has not been paid in advance except as provided by the Lease terms, and that security in the sum of $ has been deposited with Landlord; and that all minimum rental due ----------- as of this date has been paid. Very truly yours, - - --------------------------- - - --------------------------- TENANT END OF EXHIBIT D D-1 Landlord [sig] ------- Tenant [sig] ------- 29 EXHIBIT E INTENTIONALLY OMITTED END OF EXHIBIT E E-1 Landlord [sig] ------- Tenant [sig] ------- 30 EXHIBIT E-1 INTENTIONALLY OMITTED END OF EXHIBIT E-1 E-2 Landlord [sig] ------- Tenant [sig] ------- EX-11.1 3 COMPUTATION OF PER SHARE EARNINGS 1 EXHIBIT 11.1 STATEMENT OF COMPUTATION OF PER SHARE EARNINGS (1) (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED NINE MONTHS ENDED --------------------- --------------------- JUNE 29, JUNE 30, JUNE 29, JUNE 30, 1997 1996 1997 1996 ---- ---- ---- ---- Net income(1)................................................. $ 2,571 $ 1,884 $ 7,168 $ 5,088 ========= ========= ========= ======== Average shares outstanding.................................. 8,900 6,795 8,900 6,795 Common equivalent shares.................................... 107 125 126 Assumed shares sold to prepay shareholder distribution (2).. 890 890 --------- --------- --------- -------- Weighted average number of common shares.................... 9,007 7,685 9,025 7,685 ========= ========= ========= ======== Earnings per common and common equivalent share............. $ 0.29 $ 0.25 $ 0.79 $ 0.66 ========= ========= ========= ========
(1) The computations set forth for the three and nine fiscal months ended June 30, 1996 are based on pro forma net income which reflects the recording by the Company of additional taxes as if the Company were treated as a C corporation for all periods presented. (2) Reflects the estimated number of shares required to be sold by the Company (as calculated based upon the net proceeds of the initial public offering) to pay the pre-offering shareholder distributions of approximately $9,952. The total estimated shares of 890 were assumed to be outstanding for both periods of fiscal 1996. Subsequent to the initial public offering, the shares were actually outstanding and are therefore included in the "average shares outstanding" calculation above. EX-27.1 4 FINANCIAL DATA SCHEDULE
5 9-MOS SEP-28-1997 SEP-30-1996 JUN-29-1997 5,460 0 49,534 0 0 57,260 6,146 0 65,823 18,484 0 0 0 89 43,518 65,823 0 260,437 0 198,073 51,343 0 0 12,252 5,084 7,168 0 0 0 7,168 .79 0
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