-----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, Gx6M8j/UI2tFnBqA+jQE7UfRNZ6j9StWIy3fT65CHR0w6ONGu/oLzPNxuBGQOCLX cduppJSdCq8SJL14g4G/rg== 0000891554-97-000336.txt : 19970401 0000891554-97-000336.hdr.sgml : 19970401 ACCESSION NUMBER: 0000891554-97-000336 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 19961231 FILED AS OF DATE: 19970331 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYLVAN LEARNING SYSTEMS INC CENTRAL INDEX KEY: 0000912766 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EDUCATIONAL SERVICES [8200] IRS NUMBER: 521492296 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-22844 FILM NUMBER: 97571039 BUSINESS ADDRESS: STREET 1: 1000 LANCASTER ST CITY: BALTIMORE STATE: MD ZIP: 21202 BUSINESS PHONE: 4108438000 MAIL ADDRESS: STREET 1: 1000 LANCASTER ST CITY: BALTIMORE STATE: MD ZIP: 21202 10-K 1 FORM 10K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K [X] Annual Report pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934 for the fiscal year ended December 31, 1996 or [ ] Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the transition period from _________ to _________. Commission File Number 0-22844 SYLVAN LEARNING SYSTEMS, INC. (Exact name of registrant as specified in its charter) Maryland 52-1492296 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1000 Lancaster Street, Baltimore Maryland 21202 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (410)843-8000 Securities registered pursuant to Section 12(b) of the Act: Name of each exchange on Title of each class which registered Common Stock, Par Value $.01 NASDAQ Securities registered pursuant to the Section 12(g) of the Act: None Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X]. No [ ]. Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] The aggregate market value of voting Common Stock held by non-affiliates of the registrant was approximately $453 million as of March 17, 1997. The registrant had 24,516,623 shares of Common Stock outstanding as of March 17, 1997. DOCUMENTS INCORPORATED BY REFERENCE Certain information required by Part III of this Form 10-K will be filed by amendment on Form 10-K/A, which will be filed with the Securities and Exchange Commission not later than April 30, 1997. INDEX
Page No. -------- PART I. Item 1. Business................................................ 3 Item 2. Properties.............................................. 10 Item 3. Legal Proceedings....................................... 11 Item 4. Submission of Matters to a Vote of Security Holders..... 11 PART II. Item 5. Market for Registrant's Common Equity and Related Stockholder Matters................ 12 Item 6. Selected Financial Data................................. 12 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations............................................ 16 Item 8. Financial Statements and Supplementary Data............. 23 Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure................ 23 PART III. Items 10., 11., 12. and 13. will be filed by amendment on Form 10-K/A which will be filed with the Securities and Exchange Commission not later than April 30, 1997....................... 24 PART IV. Item 14. Exhibits, Financial Statements, Schedules, and Reports on Form 8-K............................... 24 SIGNATURES
2 PART I. ITEM 1. BUSINESS Sylvan Learning Systems, Inc. ("The Company" or "Sylvan") is a leading international provider of educational and testing services. The Company delivers a broad array of supplemental and remedial educational services and computer-based testing services through three principal segments. Through its Core Educational Services segment, the Company designs and delivers individualized tutorial services to school-age children and adults through its network of 620 franchised and Company-owned Sylvan Learning Centers in 49 states, five Canadian provinces, Hong Kong, South Korea and Guam. Sylvan Prometric, the Company's testing services segment, administers computer-based tests for major corporations, professional associations and governmental agencies through its network of certification centers which are located throughout the world. In addition, the Company's Contract Educational Services segment now serves 72 schools and over 10,000 students by providing educational services to public and non-public school districts receiving funding under federal and state programs and provides contract educational and training services on-site to employees of large corporations. In 1996, total systemwide revenues were approximately $285.5 million, composed of $165.1 million from core educational services ($139.5 million from franchised Learning Centers and $25.6 million from Company-owned Learning Centers, product sales and franchise sales fees), $87.0 million from testing services and $33.4 million from contract educational services. In December 1996, the Company acquired Wall Street Institute International, B.V. and its commonly-controlled affiliates. Wall Street and its affiliates teach the English language in Europe and Latin America through a network of over 170 franchised and company-owned centers. Note 19 of the 1996 audited financial statements contains additional disclosures regarding the Company's business and geographic segments. As discussed further below, the Company, in March 1997, announced a proposed merger with National Education Corporation. Proposed Merger With National Education Corporation In March 1997, the Company announced a proposed merger with National Education Corporation ("NEC") in a stock-for-stock transaction. NEC is a publicly-held provider of distance learning services, supplemental multimedia educational materials, and professional training products and services. Under the terms of the merger, the Company would issue 0.58 shares of its common stock for each share of NEC common stock. Following the transaction, which is expected to be accounted for as a pooling-of-interests, shareholders of NEC would hold approximately 47% on a fully-diluted basis of the common stock of the combined company. The transaction is expected to be completed in the third quarter of 1997 and has been approved by the boards of directors of both companies. The transaction is subject to federal anti-trust review and approval by the shareholders of both companies. Core Educational Services: Sylvan Learning Centers Sylvan is widely recognized as providing high quality educational services with consistent, quantifiable results, and has delivered its core educational service to more than 1,000,000 students primarily in grades three through eight over the past 17 years. The Company's core educational service segment provides supplemental instruction in reading, mathematics and reading readiness, featuring an extensive series of standardized diagnostic tests, individualized instruction, a student motivational system and continued involvement from both parents and the child's regular school teacher. Typically, a parent contacts a Sylvan Learning Center because the parent believes that his or her child may have insufficient reading or mathematics skills. Parents learn about Sylvan from the Company's media advertising, from a referral from another parent or from school personnel. Learning Center personnel ask the parent to bring the student to the Learning Center to complete a series of standardized diagnostic tests and to receive educational consultation. Approximately 35% of phone inquiries result in a visit to a Learning Center. The Learning Center's Sylvan-trained educators use test results to diagnose students' weaknesses and to design an individual learning program for each student. After the initial testing and consultation, the Company estimates that more than 90% of parents enroll the student in a full course of study. The program typically requires four to six months to complete and comprises 3 approximately 36 to 60 hours of instruction. Instruction is generally given twice a week for one hour per visit. Sylvan requires that all instructors be certified teachers. The cost of the tests and initial consultation ranges from $95 to $250, and fees average $35 per hour. The Company estimates that the typical program costs approximately $1,500. Learning Centers range from 1,000 to 3,500 square feet. Instruction is given at U-shaped tables designed to ensure that teachers work with no more than three students at a time. The student's individualized one hour lesson includes a five segment mastery approach. There are special incentives, such as tokens redeemable for novelties and toys, to motivate the student to achieve the program's objectives and to strengthen the student's enthusiasm for learning. Personal computers at each Learning Center are used by the student as a supplementary learning tool. The Learning Center's Director of Education monitors the progress of each student after each hour of instruction. Instructors schedule parent conferences after every 12 hours of a student's program. Throughout a student's course of study, the Learning Center tests the student using the same standardized diagnostic tests, and the results are shared with the parents in personal conferences, during which the student's continuation in a Sylvan program is discussed. Franchise Operations. As of December 31, 1996, there were a total of 620 Learning Centers in 49 states, five Canadian provinces, Hong Kong, South Korea and Guam operated by the Company or its franchisees. As of that date, there were 434 franchisees operating 581 Sylvan Learning Centers. During 1996, 55 franchised Learning Centers were opened and 6 were closed. In addition, during 1996, 11 franchisee-owned Learning Centers were acquired by the Company. Fewer than 2% of franchisees are currently more than three months in arrears in the payment of franchise royalties, and the Company does not believe that the closing of any or all of the Learning Centers of these franchisees would have a material adverse effect on the Company because the royalties earned from these franchisees only represented approximately 1% of total franchise royalties earned by the Company in 1996. The Company licenses franchisees to operate Sylvan Learning Centers in a specified territory, the size of which depends on the number of school-age children and average household incomes in the area. Franchisees must obtain the Company's approval for the location and design of the Learning Center and of all advertising, and must operate the Learning Center in accordance with the Company's methods, standards and specifications. Most Learning Centers are located in suburban areas and have approximately 10 employees, two of whom are typically full-time employees and eight of whom are part-time instructors. The cost to open a typical franchised Learning Center ranges from approximately $79,000 to $145,000, including the franchise license fee, furniture, equipment and an initial supply of certain items required to be purchased under the Company's franchise agreement. The Company actively manages its franchise system. The Company requires franchisees and their employees to attend two weeks of initial training in Learning Center operations and Sylvan's educational programs. The Company also offers franchisees continuing training each year. The Company employs field operations managers that act as "consultants" to provide assistance to franchisees in technology implementation, business development, marketing, education and operations. These employees also facilitate regular communications between franchisees and the Company. Sylvan operates a quality assurance review program to maintain the quality of Sylvan Learning Centers. Sylvan's field operations managers confirm franchisee compliance with the Company's standards, including training requirements, exclusive use of approved educational materials and programs, correct administration of testing materials, proper execution of supervisory procedures, sufficient time spent in parent/teacher conferences, staffing and Learning Center appearance. Sylvan's consultants counsel franchisees that fail to meet the Company's quality or financial performance standards and assist these franchisees in developing a plan to improve their Learning Centers' performance. When necessary, the Company assists franchisees in selling their franchises. The Company believes there is significant potential for additional franchised Learning Centers both domestically and internationally. A number of territories with only one Learning Center could support one or more additional Learning Centers based upon the number of school-age children in the market area. The Company is actively encouraging existing franchisees in these territories to open additional Learning Centers. In addition, management has identified at least 246 territories in North America, primarily in smaller markets, in which there are no Learning 4 Centers. The Company is actively seeking franchisees for a number of these territories. Approximately 38 new territories were sold in 1996. The Company has sold franchise rights for the operation of Learning Centers in South Korea, Hong Kong, China and Israel. Franchisees in these countries offer the English version of the Sylvan program, and may not offer a foreign language version of the program without paying additional fees to the Company to subsidize the additional development costs. In pricing international franchise rights, the Company takes into account estimates of the number of centers that could be opened in an area. The Company's typical franchise agreement (the "License Agreement") grants a license to operate a Sylvan Learning Center and to use Sylvan's trademarks within a specified territory. The franchisee is required to purchase from Sylvan certain diagnostic and instructional materials, student record forms, parental information booklets and explanatory and promotional brochures developed by the Company. Sylvan specifies requirements for other items necessary for operation of a Learning Center, such as computers, instructional materials and furniture. The Company currently offers a License Agreement with an initial term of ten years, subject to unlimited additional ten year extensions at the franchisee's option on the same terms and conditions. The initial license fee ranges from $34,000 to $42,000, depending on factors such as the number of school-age children in the territory. Royalties are either 8% or 9% of gross revenues of the Learning Center, and the royalty rate depends upon the demographics of the territory and is specified in the License Agreement. Advertising spending requirements range from $1,000 to $3,500 per month, or up to 6% of gross revenues, whichever is greater. The License Agreement has been revised periodically, and several franchisees are operating under older agreements with variations from the above terms. Approximately 10% of franchisees operate under older agreements with royalties as low as 6% and without any requirement to contribute to the national advertising fund. The remaining 90% of the franchisees are required to contribute a minimum of 1.0% to 1.5% of gross revenues to the national advertising fund. The fund is administered by the Sylvan National Advertising Committee, Inc., which is owned equally by the Company and the Sylvan Franchise Owners Association. Franchisees must submit monthly financial data to the Company. Company-owned Learning Centers. As of December 31, 1996, Sylvan owned and operated 39 Learning Centers: five in Baltimore, six in Dallas, six in Los Angeles, five in the greater Philadelphia area, six in South Florida, six in the greater Washington, D.C. area and five in the greater Minneapolis area. The Company's operation of Learning Centers enables it to test new educational programs, marketing plans and Learning Center management procedures. As of December 31, 1996, nine of the Company-owned Learning Centers contained Technology Centers for computer-based testing. Company-owned Learning Centers in Baltimore, Dallas, Los Angeles, Philadelphia, South Florida, greater Washington D.C. and greater Minneapolis give the Company a local presence in key markets, which has been helpful in marketing the Company's services to school districts utilizing Title I funds and to employers interested in the Sylvan-At-Work and PACE programs (see "Contract Educational Services" on page 7). The Company may consider selected acquisitions of additional Learning Centers now operated by franchisees. Sylvan Prometric Sylvan has established 221 testing centers which are located in existing Learning Centers, 20 stand-alone testing centers and, with the acquisition of Drake in September 1995, added an additional 990 testing centers, 594 of which are located in North America and the remainder in 95 foreign countries. In addition, Sylvan acquired contract rights from the National Association of Securities Dealers ("NASD") and assumed management of 56 NASD testing centers in April 1996. Pursuant to the contract, the Company is in the process of reducing the number of these testing centers. The Learning Center and stand-alone sites contain up to 20 networked computers. The Company believes that it can increase capacity by adding workstations at existing testing centers, as well as by opening new testing centers. Opening a new testing center has taken, on average, 30 to 60 days. Computer-based tests, which can be offered during regular school hours and on weekends, increase utilization of Learning Centers. Testing also increases public awareness of Sylvan Learning Centers and the Company's core educational services. Sylvan provides the supporting infrastructure and administration, including computer equipment and software systems in each testing center and where appropriate, registration and scheduling of candidates, downloading of individual tests and training of Learning Center personnel in accordance with procedures established by the sponsoring 5 testing organization. The franchisee provides the space and Learning Center personnel for staffing the testing center. The Company provides training and certification of the Testing center personnel as computer-based test administrators. The Company enters into contracts directly with the testing organization, such as Educational Testing Services ("ETS"), under which Sylvan receives a fee based upon the number of tests given. The Company has entered into a separate agreement with each franchisee that operates a testing center, whereby the franchisee receives a fee per test that decreases as the volume of the tests delivered increases. The independently owned and managed testing centers must meet certain criteria established by the Company for administering computer-based testing. The owners of the testing centers are required to furnish the space, equipment and personnel needed for their operation and receive compensation for test delivery in various forms including hardware obsolescence guarantees and marketing assistance for their core business. Principal customers in the information technology ("IT") industry are Novell, Inc. and Microsoft Corp. IT customers sponsor worldwide certification programs for various professionals such as network administrators and engineers, service technicians, instructors, application specialists and developers, and system administrators, operators and engineers. Certification testing for Novell and Microsoft accounted for $40.6 million, or 47%, of Sylvan Prometric's revenues in fiscal 1996. ETS, a leading educational testing firm, develops and administers more than 9.5 million tests each year, including the Graduate Record Exam ("GRE"), the Graduate Management Admissions Test ("GMAT"), The Test of English as a Foreign Language ("TOEFL"), the National Teachers Exam ("NTE") and the Advanced Placement Program, sponsored by organizations such as the College Board. The largest tests administered by ETS are the SAT, which is given annually to over 1.6 million college-bound students, and the PSAT, which is given annually to all students in grade 10 or 11. As one of the largest and most influential test developers and administrators, ETS is leading the conversion of tests to computer-based format from pencil and paper versions. The Company developed a working relationship with ETS as a result of a joint venture between ETS and a predecessor of the Company in the late 1980s. This relationship facilitated the Company's entering into a master agreement with ETS (the "ETS Agreement"), under which the Company is the exclusive commercial provider of computer-based tests administered by ETS. This exclusivity provision does not apply to the SAT, PSAT and Achievement Tests which are sponsored by the College Board. During 1996, the Company recognized approximately $19.6 million, or 23% of Sylvan Prometric's revenues in fiscal 1996, from services for ETS. The Company provides testing services through contracts with ETS both domestically and internationally. In April 1994, the Company entered into a ten year contract with ETS to develop test sites and provide computer-based tests internationally. During 1996, the Company expanded international testing for ETS to 88 permanent and temporary sites in 54 countries. The terms of the contract stipulate that the Company will be compensated for its services through a fee equal to approved costs, plus 10 percent, and the Company recognizes revenues accordingly. The Company also will be reimbursed for its cost of capital and any foreign exchange losses. During 1996, the Company recognized revenues of approximately $7.6 million under this contract. Sylvan has been designated as the exclusive commercial provider of computer-based tests administered by ETS (excluding tests not currently offered by the College Board in computer-based format) so long as Sylvan is able to provide sufficient capacity to meet the demand of candidates seeking to take computer-based versions of tests, as determined in accordance with criteria set forth in the ETS Agreement. The ETS Agreement provides that ETS may establish ETS-operated testing centers, client-specific testing locations or testing centers at colleges. However, ETS has agreed that Sylvan will receive at least one-half of ETS' U.S. volume of computer-based tests covered by the ETS Agreement. At present, there are no ETS-operated testing centers in existence. Under the ETS Agreement, the Company began offering computer-based versions of ETS' PRAXIS examination, which is used to license beginning teachers, in September 1992, and the GRE, which is used by graduate schools to evaluate applicants, in October 1992. In August 1992, Sylvan and ETS were jointly awarded a contract by the National Council of State Boards of Nursing to develop and deliver exclusively a computer-based licensing examination (NCLEX) for registered and practical nurses. Beginning in April 1994, the test has been offered exclusively in the computer-based version. 6 In addition to the tests offered through its partnership with ETS, the Company is one of two entities licensed by the FAA to deliver computer-based versions of various pilot and mechanic licensing tests for private aviation. In addition to FAA testing, the Company provides testing services for organizations in many other fields, such as for computer professionals, medical laboratory technicians, and military candidates. Effective December 1, 1996, the Company purchased the privately held Wall Street Institute International, B.V. and its commonly controlled affiliates (collectively, "WSI"), a European based franchisor and operator of learning centers where English is taught through a combination of computer-based and live instruction. Typically, the instructional programs are approximately nine months to one year in duration. With more than 170 franchised centers in operation throughout Europe and Latin America, WSI had revenues of approximately $14.0 million for the fiscal year ended August 31, 1996. The acquisition of WSI is an important step in Sylvan's strategy to increase its services to the adult education marketplace and to expand internationally. Sylvan began building a global network for the delivery of computer-based testing services in early 1994 through an exclusive international alliance with ETS. In addition to offering the English language programs, WSI locations can be utilized by Sylvan to administer certain computer-based testing programs throughout Europe and Latin America. WSI, which started franchising in 1991, has 82 centers in Spain with the remainder in France, Germany, Italy, Portugal, Switzerland, Mexico, Chile, and Venezuela. WSI 's international expansion was accomplished by selling Master Licensing agreements, with each Master Licensor obtaining franchisees to open centers in their development areas. Sylvan plans to continue this strategy to expand WSI's presence globally, with a focus on Asia and the Pacific Rim region. Contract Educational Services: Public and Non-Public School Based Programs Funded by Federal Title I and state-based programs; PACE and Sylvan-At-Work Title I and state-based programs. The federal government and various state and local governmental agencies allocate funds to local school districts to provide supplemental and remedial education to academically and economically disadvantaged students. The main program is the Title I (formerly Chapter I) program, administered by the U.S. Department of Education. Federal law now contains minimum student performance standards for each school district receiving Title I funds. The Company believes that, because of its proven record of achieving measurable improvement in the reading and mathematics skills of its students nationwide, it is positioned to provide supplemental educational services to school districts receiving Title I and similar state funds. As of December 31, 1996, the Company had contracts to provide remedial educational services to the following public schools: 22 Baltimore schools, 10 District of Columbia schools, seven schools in four districts in Texas and Maryland, 14 schools in Chicago, three schools in Newark, five St. Paul schools, two schools in Broward County, Florida, and one school in New Orleans. In January, 1997 the Company was awarded contracts to provide services in public schools in the districts of Charleston, Oklahoma City, and Richmond. In 1996, approximately 14% of total revenues for the contract educational services segment were derived from the contracts with the Baltimore City Schools. Using Company personnel, Sylvan offers virtually the same core educational services to students in schools as is offered at Sylvan Learning Centers. The school designates a classroom to be the Learning Center for the duration of the contract and modifies the classroom to resemble a typical Learning Center. Sylvan personnel administer standardized diagnostic tests and, based on the results, prescribe an individualized learning program for each child. Students typically receive two hours of instruction per week, which includes use of personal computers as in a Learning Center. The Company can provide these services to students after school, on Saturdays, during the summer or as a "pullout" program during the regular school day, which is the method currently prescribed by all current contracts. There is a high degree of individual attention, with student to teacher ratios of no more than three to one. The program is designed to include a high degree of parental involvement, and teachers make a special effort to involve parents. Under most of its contracts, the Company has guaranteed that each student who receives instruction in the Sylvan program and meets prescribed attendance requirements will achieve some minimum measure of improvement required 7 by the school districts, as measured by standardized tests. Improvement is measured using various standardized measures, including normal curve equivalents ("NCE's"), a generally accepted statistical measure of student performance. The typical minimum improvement required is two NCE's per year. If a student does not achieve the required improvement, the Company will provide 12 hours of remedial instruction to that student during the following summer or school year without charge. The Company has not incurred significant expense related to this guarantee. Under the contracts, the school districts pay the Company a set fee for all services, materials and equipment. The contracts have terms of one to three years, with the latest expiring in June 1998. All of the contracts contain provisions for cancellation by school district officials based on funding constraints. The Company is actively seeking contracts to provide its core educational program to other school systems, offering to tailor its program to the system's specific needs, and is in discussions with several other major school districts. In addition to serving public school students, Sylvan can provide its service to parochial or private school students through contracts with public school districts. Public school districts are responsible for administering the Title I funding for the non-public schools. Because government-funded services to any parochial school students generally cannot legally be provided in the parochial school, Sylvan offers the flexibility of conducting the program at a nearby Learning Center, or providing temporary facilities. PACE. In March 1995, the Company acquired The PACE Group ("PACE"), a provider of educational and training services to large corporations throughout the United States. Services offered by PACE include racial and gender workplace diversity training and skills improvement programs such as writing, advanced reading, listening and public speaking. This acquisition complements the Company's Sylvan-At-Work program and extends the core educational services the Company offers to adults in the corporate workplace. PACE provides educational and training services, typically on-site, to businesses throughout the United States and generated $10.1 million in revenues for the year ended December 31, 1996. Management believes PACE is capitalizing on the trend toward outsourcing of training services by large corporations. PACE licenses most of these programs from the individuals who developed them and pays royalties ranging from 5% to 15% of the revenues generated from the programs. These programs are typically offered on-site from one to several days at a time and are conducted by trained instructors employed by PACE, or, in some cases, PACE will train the customer's employees to conduct the programs. Additionally, a corporation may purchase a site license to offer a particular PACE program. PACE currently has 26 sales offices throughout the United States and markets the programs locally through its sales force. PACE customers include Ford Motor Company, IBM, BankOne, General Motors and AT&T. Sylvan-At-Work. The Company's Sylvan-At-Work program, which has been offered since 1990, is a modified version of Sylvan's core educational service provided to businesses on-site. Programs are currently offered for Motorola, Inc. at one site in Austin, Texas; for Texas Instruments Incorporated at three sites in the Dallas area; and, for Martin Marietta Energy Systems, Inc. at one site in Tennessee. Marketing The Company and its franchisees market Sylvan's core educational service to parents of school-aged children at all grade levels and academic abilities. Far beyond tutoring, Sylvan Learning Centers' supplemental education utilizes a diagnostic and prescriptive approach to address the specific needs of each and every student. A portion of Sylvan's advertising includes spots on morning and evening news on the national networks. Sylvan's advertising campaign demonstrates the benefits of its personalized educational services through testimonials of actual parents and Sylvan teachers. It positions Sylvan as the leader in supplemental education and emphasizes Sylvan's high quality curriculum, personalized attention and positive results: better grades and improved self-esteem. Franchisees form local cooperatives to collectively purchase local television and radio advertising and usually supplement their efforts with local newspaper and direct mail. The company also has additional marketing support for specific programs, including Reading, Math, Algebra, Geometry, Study Skills, SAT/ACT College Prep, and Writing. The Company is actively involved in marketing computer-based testing services to national and international academic testing organizations, such as ETS, and licensing and professional certification organizations. The Company's network of testing centers, centralized registration capability and computer-based testing experience offer 8 important competitive advantages. The Company markets its school-based educational services to several public school systems and state education departments. In 1995 and 1996, this marketing effort has been expanded to seek contracts for both public and non-public schools, where both are administered by the local public school district. Marketing efforts for the PACE programs are focused on large corporations seeking to outsource their training and educational programs, through PACE's 26 sales offices throughout the United States. PACE's strategy is to offer solutions to the customer's training needs rather than marketing specific products. Competition The Company is aware of only two direct national corporate competitors in its core educational services segment: Huntington Learning Centers, Inc. and Kumon Educational Institute. The Company believes these competitors operate fewer centers than Sylvan and that these firms concentrate their services within a smaller geographic area. In most areas served by Sylvan Learning Centers, the primary competition is from individual tutors. State and local education agencies also fund tutoring by individuals, which competes with the Company's core educational services segment. The Company is not aware of any other private businesses competing to provide Title I programs for public school students, and the Company's most significant competitor remains the public school system itself. Given the unique position of public education in the United States, the Company believes that educational reforms implemented directly by school officials will not face the same degree of public resistance that the Company may face. The Company also competes with school reform efforts sponsored by private organizations and universities and with consultants hired by school districts to provide assistance in the identification of problems and implementation of solutions. The Company is aware of several entities that currently provide Title I and state-based programs for students attending parochial and private schools on a contract basis. Sylvan Prometric also has a small number of direct competitors. These competitors include organizations that have opened centers to offer specific computer-based tests under contracts with the administrators of those tests. Government Regulation Title I. Title I school districts are responsible for implementing Title I in carrying out their educational programs. Final Title I regulations, which were issued July 3, 1995, as well as provisions of Title I itself, direct Title I school districts to satisfy obligations including involving parents in their children's education, evaluating and reporting on student progress, providing equitable services and other benefits to eligible non-public school students in the district and other programmatic and fiscal requirements. In contracting with school districts to provide Title I services, the Company has become, and will continue to be, subject to various Title I requirements and may become responsible to the school district for carrying out specific functions required by law. For example, under the Baltimore City Schools' contract, Sylvan has responsibility for soliciting parental involvement, introducing program content adequate to achieve certain educational gains and maintaining the confidentiality of student records. The Company's failure to adhere to Title I requirements or to carry out regulatory responsibilities undertaken by contract may result in contract termination, financial liability, or other sanctions. Franchise. The sale of franchises is regulated by various state authorities as well as the Federal Trade Commission (the "FTC"). The FTC requires that franchisors make extensive disclosure to prospective franchisees but does not require registration. A number of states require registration and prior approval of the franchise offering document. In addition, several states have "franchise relationship laws" or "business opportunity laws" that limit the ability of a franchisor to terminate franchise agreements or to withhold consent to the renewal or transfer of these agreements. While the Company's franchising operations have not been materially adversely affected by such existing regulation, the Company cannot predict the effect of any future legislation or regulation. 9 Trademarks The Company has a federal trademark registration for the words "Sylvan Learning Center" and distinctive logo (a reading child), a service mark for the words "Sylvan Prometric" and various other trademarks and service marks and has applications pending for a number of other distinctive phrases. The Company also has obtained Canadian registrations of a number of the same trademarks. The Company's License Agreement grants the franchisee the right to use the Company's trademarks in connection with operation of the franchisee's Learning Center. Employees As of December 31, 1996, the Company had approximately 2,850 employees, 1,250 of whom were classified as full-time and 1,600 of whom were classified as part-time. Most of the Company's part-time employees are teachers in school-based programs, Company-owned Learning Centers and Sylvan-At-Work programs. None of the Company's employees is represented by a union, and the Company considers its relationship with its employees to be good. Backlog The Company supplies its educational and testing services when requested; consequently, the Company has not experienced any backlog of services. Effect of Environmental Laws The Company is in compliance with all environmental laws. Future compliance with environmental laws is not expected to have a material effect on the business. ITEM 2. PROPERTIES The Company leases approximately 108,000 square feet of space in Baltimore, Maryland for its administrative offices. In addition, the Company leases approximately 55,000 square feet in Minneapolis, Minnesota for general office space and a registration center. The Company also leases space for the 39 Company-owned Learning Centers in Maryland, Texas, California, Pennsylvania, Delaware, New Jersey, Florida, Minnesota and Virginia, ranging from 1,500 to 3,500 square feet per Learning Center. The Company began leasing space for Technology Centers in areas where there is no Learning Center franchise or centers acquired from NASD. These spaces range from 500 to 3,500 square feet. The Company had 80 Technology Centers leased as of December 31, 1996. The Company leases 29 international testing sites ranging from 500 to 5,000 square feet with the lease terms from three to five years. 10 ITEM 3. LEGAL PROCEEDINGS From time to time, the Company may be a party to routine litigation incidental to its business. At this time, the Company is the defendant in a legal proceeding pending in the United States District Court for the Northern District of Iowa, Civil Action No. C96-334MJM, filed on November 18, 1996 by ACT, Inc., an Iowa nonprofit corporation formerly known as American College Testing Program, Inc. ("ACT"). ACT's claim arises out of the Company's purchase of contract rights to administer testing services for the National Association of Securities Dealers, Inc. ("NASD"). ACT has asserted that the Company tortiously interfered with ACT's relations, contractual and quasi-contractual, with the NASD, caused ACT to suffer the loss of its advantageous economic prospects with the NASD and other ACT clients and that the Company has monopolized and attempted to monopolize the computer-based testing services market. ACT has claimed unspecified amounts of compensatory, treble and punitive damages, as well as injunctive relief. The Company believes that all of ACT's claims are without merit. At this time the Company is not a party, either as plaintiff or defendant, in any other material litigation. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS No matters were submitted to a vote of security holders during the fourth quarter ended December 31, 1996. 11 PART II. ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS The Company's Common Stock has traded on the NASDAQ Stock Market since its initial public offering on December 9, 1993. It's trading symbol is SLVN. The high and low trade prices for 1995 and 1996 for the Company's common stock are set out in the following table. These prices are as reported by NASDAQ, and reflect inter-dealer price quotations, without retail mark-up, mark down or commission and may not necessarily represent actual transactions. All amounts reported in the 1996 Annual Report on Form 10-K and in the 1996 audited financial statements have been retroactively restated to reflect the effects of a 3 for 2 stock split which occurred in November 1996.
1995 High Low ---- ------ ----- 1st Quarter $13.17 $11.17 2nd Quarter $14.33 $11.09 3rd Quarter $21.67 $14.33 4th Quarter $21.17 $15.33 1996 High Low ---- ------ ----- 1st Quarter $26.17 $18.00 2nd Quarter $27.50 $21.33 3rd Quarter $27.50 $18.67 4th Quarter $33.00 $24.25
No dividends were declared on the Company's Common Stock during the years ended December 31, 1996 and 1995, and the Company does not anticipate paying dividends in the foreseeable future. The number of registered shareholders of record as of March 17, 1997 was 213. During the year ended December 31, 1996, the Company issued 861,500 shares of its common stock that were not registered under the Securities Act of 1933. On November 8, 1996, the Company issued 824,000 shares to JLC Learning Corporation pursuant to a Securities Purchase Agreement. On October 23, 1996, the Company issued 37,500 shares to Jannick Education, Inc. for the purchase of five franchised learning centers. ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA Sylvan is the successor to Sylvan Learning Corporation (the "Predecessor"). The Predecessor was founded in 1979 to develop the Sylvan Learning Centers concept. In April 1985, Kinder-Care Learning Centers, Inc. ("Kinder-Care") acquired the Predecessor and in July 1985, completed an initial public offering of the Predecessor's common stock. The Predecessor operated as a public company until February 1988, when Kinder-Care repurchased all of the publicly-held shares of the Predecessor. On February 1, 1991, the Predecessor and KEE, Incorporated ("KEE"), a computer training software development business owned by a group of investors including Messrs. Hoehn-Saric and Becker, entered into a joint venture by contributing substantially all of their assets to Sylvan KEE Systems, a Maryland general partnership (the "Partnership"), each in exchange for a 50% interest in the Partnership. Messrs. Hoehn-Saric and Becker assumed management responsibility for the Partnership. The Partnership operated the business through January 26, 1993, when KEE purchased all of the Predecessor's outstanding common stock from Kinder-Care. The $8.0 million purchase price was paid with $4.5 million in cash and KEE's $3.5 million 12% promissory note. The cash portion of the purchase price came from the net proceeds of KEE's private placement of $10.0 million of Series A Preferred Stock. Following KEE's purchase of the stock of the Predecessor, the Partnership was dissolved, and all of its assets and liabilities were transferred to KEE. KEE changed its name to Sylvan KEE Systems, Inc. and later to Sylvan Learning Systems, Inc. in contemplation of the disposition of the assets of the KEE division. During 1993, Sylvan sold all of KEE's assets and liabilities for $2.2 million to Computer Innovations Distribution Inc., which operates 12 under the name Computerland of Canada and is a subsidiary of SHL Systemhouse Inc. Sylvan realized a gain of approximately $364,000 from this transaction. KEE's business had generated operating losses for all periods and is presented in the Statements of Operations as a discontinued operation. The following combined statement of operations data for the twelve months ended December 31, 1992 are unaudited and consist of the operations of the Partnership which was formed on February 1, 1991. On January 26, 1993, Sylvan acquired the Predecessor and dissolved the Partnership. The selected statement of operations data for the year ended December 31, 1993 consists of the results of the Partnership for the month of January 1993 plus the results of Sylvan for the eleven months ended December 31, 1993. The selected financial data for the years ended December 31, 1994, 1995 and 1996 have been derived from Sylvan's financial statements which have been audited by Ernst & Young LLP. The financial data should be read in conjunction with the historical Financial Statements and Notes thereto. On February 17, 1995, the Company acquired by merger all of the outstanding stock of Remedial Education and Diagnostic Services, Inc. and READS, Inc. (collectively, "READS"). READS is based in Philadelphia, Pennsylvania and provides remedial and education services, psychological, diagnostic and counseling services, career awareness training, and a variety of consulting services. Services are delivered under contracts with school districts, county-wide educational agencies and municipalities in the Eastern United States. During 1994, the Company acquired by merger all of the outstanding stock of Learning Services, Inc. ("LSI") and all of the outstanding stock of Loralex Corporation ("Loralex"). These companies owned and operated a total of nine Sylvan Learning Centers located in the Northeast United States and Florida, respectively. All of these acquisitions have been accounted for by the Company as poolings-of-interests and, accordingly, the Company's financial statements have been restated for all periods prior to these acquisitions to include the results of operations of READS, LSI and Loralex. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Background." The selected statements of operations data include the operations of PACE from March 1, 1995 and the operations of Drake from October 1, 1995, the respective periods each of these subsidiaries were owned by the Company, as further described in "Management's Discussion and Analysis of Financial Condition and Results of Operations--Background". The selected statements of operations data include the operations of Wall Street Institute International B.V. ("WSI") from December 1, 1996 through December 31, 1996, the period that WSI was owned by the Company, as further described in "Management's Discussion and Analysis of Financial Condition and Results of Operations - Background". 13
Partnership and Sylvan Sylvan Partnership Combined --------------------------------------- Year Year Year Year Year Ended Ended Ended Ended Ended December 31, December 31, December 31, December 31, December 31, 1992(1) 1993(1) 1994(1) 1995 1996 --------- --------- --------- --------- --------- (in thousands, except per share data) Statements of Operations Data: Revenues: Franchise royalties .............................. $ 5,695 $ 6,510 $ 7,921 $ 9,223 $ 11,160 Franchise sales fees ............................. 352 1,008 1,256 2,132 3,184 Company-owned learning center services ...................................... 3,692 7,246 8,605 11,520 18,528 Product sales .................................... 1,537 1,297 2,234 3,188 3,927 Testing services ................................. 1,300 3,572 13,665 34,566 86,951 Contract educational services .................... 7,124 9,989 13,563 27,362 33,366 Other ............................................ 481 -- -- -- -- --------- --------- --------- --------- --------- Total revenues ................................ 20,181 29,622 47,244 87,991 157,116 --------- --------- --------- --------- --------- Cost and expenses: Franchise services ............................... 2,195 2,778 3,84 15,875 6,532 Company-owned learning center expense ....................................... 3,400 6,873 7,655 10,369 16,073 Cost of product sales ............................ 1,782 1,009 1,759 2,431 2,952 Testing service expense .......................... 2,022 3,052 14,025 30,348 71,518 Contract educational services expense ....................................... 6,316 8,751 11,880 25,120 29,071 General and administrative expense(4) ............ 5,433 6,255 4,998 6,206 8,755 Loss on impairment of assets ..................... -- -- -- 3,316 -- --------- --------- --------- --------- --------- Total cost and expenses ....................... 21,148 28,718 44,158 83,665 134,901 --------- --------- --------- --------- --------- Operating income (loss) .............................. (967) 904 3,086 4,326 22,215 Non-operating income (expense) ....................... (112) (171) 224 391 363 Interest income (expense), net ....................... (307) (999) 152 (960) 1,015 --------- --------- --------- --------- --------- Income (loss) from continuing operations before income taxes and extraordinary items .............................. (1,386) (266) 3,462 3,757 23,593 Income taxes ......................................... (8) (7) (76) (209) (8,850) --------- --------- --------- --------- --------- Income (loss) from continuing operations before extraordinary items ............................................ (1,394) (273) 3,386 3,548 14,743 Discontinued operations(2): Loss from operations, net of tax ................. (1,700) (375) -- -- -- Gain on disposal ................................. 427 580 -- -- -- --------- --------- --------- --------- --------- Income (loss) from discontinued operations .................................... (1,273) 205 -- -- -- --------- --------- --------- --------- --------- Net income (loss) before extraordinary items ............................................ (2,667) (68) 3,386 3,548 14,743 Extraordinary items(3) ............................... -- (177) -- -- -- --------- --------- --------- --------- --------- Net income(loss) ................................. $ (2,667) $ (245) $ 3,386 $ 3,548 $ 14,743 ========= ========= ========= ========= ========= Income (loss) from continuing operations per share(5) .......................... $ (0.02) $ 0.23 $ 0.22 $ 0.60 ========= ========= ========= ========= Net income (loss) per share(5) ....................... $ (0.02) $ 0.23 $ 0.22 $ 0.60 ========= ========= ========= ========= Weighted average shares outstanding(5) ............... 11,553 15,119 15,972 23,582 ========= ========= ========= ========= Balance Sheet Data (at period end): Net working capital (deficit) ........................ $ (2,559) $ 12,869 $ 11,530 $ 38,317 $ 28,387 Intangible assets and deferred contract costs ............................................ 149 7,000 7,932 82,849 122,932 Total assets ......................................... 9,979 32,242 42,499 165,407 250,579 Long-term debt and capital leases .................... 1,690 2,899 6,168 4,416 4,049 Stockholders' or partners' equity (deficit) .......... (210) 23,971 31,834 136,464 179,591
(footnotes on next page) 14 - ---------- (1) Prior to February 1, 1991, the Sylvan Learning Centers business was conducted by Sylvan Learning Corporation (the "Predecessor"). On February 1, 1991, the Predecessor contributed the Sylvan Learning Centers business to Sylvan KEE Systems, a Maryland general partnership (the "Partnership") in exchange for a 50% partnership interest, and Sylvan contributed its computer training software development business to the Partnership in exchange for the other 50% partnership interest. On January 26, 1993, Sylvan acquired the Predecessor and dissolved the Partnership. On September 3, 1993, Sylvan sold its computer training software development business. On February 17, 1995, Sylvan acquired by merger all of the outstanding stock of Remedial Education and Diagnostic Services, Inc. and READS, Inc. (collectively, "READS"). READS is based in Philadelphia, Pennsylvania and provides remedial and education services, psychological, diagnostic and counseling services, career awareness training, and a variety of consulting services. Services are delivered under contracts with school districts, county-wide educational agencies and municipalities in the Eastern United States. During 1994, Sylvan acquired by merger all of the outstanding stock of Learning Services, Inc. ("LSI") and all of the outstanding stock of Loralex Corporation ("Loralex"). These companies owned and operated a total of nine Sylvan Learning Centers located in the Northeast United States and Florida. The READS, Loralex and LSI acquisitions have been accounted for by Sylvan as poolings-of-interests and, accordingly, Sylvan's financial statements have been restated for all periods presented to include the results of operations of READS, LSI and Loralex. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Background." (2) Represents Sylvan's computer training software development business which was sold in September 1993; a Canadian computer training business, 80.1% of which was sold in 1992; and Sylvan's tuition financing subsidiary which was sold in October 1991. (3) Represents the $350,000 gain on extinguishment of a $3.5 million debt to Learning Centers, Inc., and a $527,000 loss on an extinguishment of $5.0 million of notes payable to stockholders. (4) The Company has reclassified certain operating expenses previously included in general and administrative expense to division-specific expense categories. This change has been reflected for all periods presented. (5) All share and per share data have been restated to retroactively reflect a 3-for-2 stock split of the Company's common stock for stockholders of record on November 7, 1996. 15 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS ALL STATEMENTS CONTAINED HEREIN THAT ARE NOT HISTORICAL FACTS, INCLUDING BUT NOT LIMITED TO, STATEMENTS REGARDING THE ANTICIPATED IMPACT OF UNCOLLECTIBLE ACCOUNTS RECEIVABLE ON FUTURE LIQUIDITY, EXPENDITURES TO DEVELOP LICENSING AND CERTIFICATION TESTS UNDER EXISTING CONTRACTS, THE COMPANY'S CONTINGENT PAYMENT OBLIGATIONS RELATING TO THE PACE AND DRAKE ACQUISITIONS, FUTURE CAPITAL REQUIREMENTS, POTENTIAL ACQUISITIONS AND THE COMPANY'S FUTURE DEVELOPMENT PLANS ARE BASED ON CURRENT EXPECTATIONS. THESE STATEMENTS ARE FORWARD LOOKING IN NATURE AND INVOLVE A NUMBER OF RISKS AND UNCERTAINTIES. ACTUAL RESULTS MAY DIFFER MATERIALLY. AMONG THE FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY ARE THE FOLLOWING: CHANGES IN THE FINANCIAL RESOURCES OF THE COMPANY'S CLIENTS; TIMING AND EXTENT OF TESTING CLIENTS' CONVERSIONS TO COMPUTER-BASED TESTING; AMOUNT OF REVENUES EARNED BY THE COMPANY'S PACE AND DRAKE OPERATIONS; THE AVAILABILITY OF SUFFICIENT CAPITAL TO FINANCE THE COMPANY'S BUSINESS PLAN ON TERMS SATISFACTORY TO THE COMPANY; GENERAL BUSINESS AND ECONOMIC CONDITIONS; AND OTHER RISK FACTORS DESCRIBED IN THE COMPANY'S REPORTS FILED FROM TIME TO TIME WITH THE COMMISSION. THE COMPANY WISHES TO CAUTION READERS NOT TO PLACE UNDUE RELIANCE ON ANY SUCH FORWARD LOOKING STATEMENTS, WHICH STATEMENTS ARE MADE PURSUANT TO THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1955 AND, AS SUCH, SPEAK ONLY AS OF THE DATE MADE. Background In April 1991, the Partnership acquired a computer training business from Computerland of Canada through a subsidiary, Learning Technologies of Canada, Inc. ("LTC"). In June 1992, the Partnership sold 80.1% of the stock of LTC to Computerland of Canada. Computerland of Canada purchased the remaining 19.9% of LTC's stock in connection with Sylvan's sale of the entire KEE business in 1993. The Partnership recognized a net gain of $427,000 upon the sale of 80.1% of LTC's stock in 1992, and Sylvan recognized a gain of $216,000 upon the sale of the remaining 19.9% of LTC's stock in 1993. During 1994, Sylvan acquired by merger all of the outstanding shares LSI and Loralex. These companies owned and operated a total of nine Sylvan Learning Centers located in the greater Philadelphia area and Southern Florida, respectively. On February 17, 1995, in exchange for 525,108 shares of Sylvan's Common Stock (having a then market value of approximately $6.0 million), Sylvan acquired READS, a Philadelphia, Pennsylvania-based contract provider of various remedial education, diagnostic and consulting services to non-public schools. Each of these acquisitions has been accounted for by Sylvan as a pooling-of-interests and, accordingly, Sylvan's financial statements have been restated for all prior periods presented to include the results of operations of LSI, Loralex and READS. In 1994, the LSI and Loralex Learning Centers generated an aggregate of $4.1 million of revenues and $834,000 of operating income. READS' revenues for 1994 totaled $7.7 million (including $2.6 million from a related not-for-profit entity) and operating income of $630,000. Effective February 28, 1995, Sylvan acquired PACE, a provider of educational services to large corporations. The acquisition was accounted for using the purchase method of accounting, and Sylvan's results of operations from March 1, 1995 include the operations of PACE. PACE had total revenues of $9.6 million and $1.4 million of operating income in 1994. On December 13, 1995 Sylvan consummated the purchase of privately-held Drake, a leading provider of computer-based certification, licensure and assessment testing, at which time the Company transferred an initial purchase price valued at approximately $70.0 million to the Sellers. The transaction was effective September 30, 1995. An additional amount of $8.1 million is payable to the Sellers based on the 1996 financial results of the Sylvan Prometric division. Additional consideration may be payable to the Sellers if defined future operating results of the computer-based testing business are achieved. 16 Effective December 1, 1996, Sylvan acquired Wall Street Institute International B.V. and its commonly-controlled affiliates ("WSI"), a European-based franchisor and operator of learning centers that teach the English language. This transaction was accounted for using the purchase method of accounting and Sylvan's results of operations from December 1, 1996 include the operations of WSI. WSI had total revenues of $14.3 million and $4.2 million of operating income for its most recent fiscal year which ended August 31, 1996. Sylvan paid $4.9 million of the approximately $20.0 million purchase price in cash and the remainder in 714,884 shares of Sylvan common stock. Sylvan has agreed to register 209,520 of such shares under the Securities Act of 1933, as amended on April 28, 1997. The discussion of Sylvan's results of operations herein relates to the continuing operations of Sylvan. The results of operations discussion of PACE is included for the period from March 1, 1995. The results of operations discussion of Drake is included for the period from October 1, 1995. The results of operations discussion of WSI is included for the period December 1, 1996 through December 31, 1996. Sylvan generates revenues from three business segments: core educational services which primarily consist of franchise sales, royalties and Sylvan-owned Learning Center revenues; testing services, which consist of computer-based testing fees paid to Sylvan primarily by test administrators; and contract educational services, which consist of revenues attributable to providing supplemental and remedial education services to school districts and major corporations. Results of Operations Comparison of results for the year ended December 31, 1996 to the year ended December 31, 1995. Revenues. Total revenues increased by $69.1 million, or 79%, to $157.1 million for the year ended December 31, 1996, compared to the same period in 1995. This increase resulted from higher revenues in all business segments -- core educational services, testing services and contract educational services. Core educational services revenues increased by $10.7 million, or 41%, to $36.8 million for 1996. Franchise royalties increased $1.9 million or 21%, for 1996. This increase in franchise royalties was due to an overall 19% increase in revenues at existing Learning Centers open for more than one year combined with a net increase of 49 new full and satellite Centers opened in 1996. A satellite Center is a center operating within an existing franchise territory. Franchise sales fees increased by $1.1 million, or 49%, to $3.2 million for the year ended December 31, 1996 compared to the same period in 1995. For the year ended December 31, 1996, there were four area development agreements sold for $1.7 million and 38 franchise Center licenses sold, as compared to 43 franchise Center licenses and two area development agreements sold for $550,000 in the same period in 1995. Revenues from Company-owned Learning Centers increased by $7.0 million, or 61%, to $18.5 million during 1996. Revenue growth related to student enrollment increases for Centers operating over 12 months as of December 31, 1996 resulted in $3.4 million, or 30%, of the increase for 1996 compared to 1995. Approximately $3.2 million of the revenue increase resulted from the acquisition of eleven centers from two franchisees. The opening of one new Center after December 31, 1995 resulted in an additional $350,000 of revenue during 1996. Product sales increased by $739,000, or 23%, to $3.9 million for 1996 resulting from overall student enrollment increases at franchised Centers. Contract educational services revenue increased by $6.0 million, or 22%, to $33.4 million for the year ended December 31, 1996. Revenue from public and non-public school contracts increased by $4.1 million for the year 17 ended December 31, 1996. Revenue from PACE accounted for $1.9 million of the increase for 1996. The PACE increase results from the fact that the acquisition, accounted for as a purchase, was effective February 28, 1995, and as such the 1995 results only reflect ten months of PACE results. Revenue from public and non-public school contracts obtained after December 31, 1995 contributed $2.2 million to revenue for 1996. Revenue from existing public school public and non-public contracts increased by $2.8 million in 1996, primarily related to the contracts being in effect for a full year in 1996. Revenue from existing public and non-public school contracts decreased by $0.9 million in 1996 due to non-recurring revenues included in the 1995 period. Testing services revenue increased by $52.4 million, or 152%, to $87.0 million during the year ended December 31, 1996, compared to the year ended December 31, 1995. The significant increase in testing services revenues resulted primarily from the acquisition of Drake which provided increased revenues from information technology (IT) clients. Increased services under Educational Testing Service (ETS) contracts, including the cost-plus international contract and GRE, and other professional testing revenue increases, including the implementation of a management contract with the National Association of Securities Dealers, Inc. ("NASD"), also contributed to the increase in testing services revenues. Effective March 1, 1996, the Company entered into a management contract with the NASD to operate their testing centers delivering computer-based testing to securities brokers and dealers. The Company has a 10 year contract to provide testing for the NASD. Cost and Expenses. Franchise services expense increased by $0.7 million, to $6.5 million or 46% of franchise royalties and sales for the year ended December 31, 1996, compared to $5.9 million, or 52% of franchise royalties and sales for the year ended December 31, 1995. The increased margin in 1996 primarily relates to the effects of leveraging the fixed costs of supporting this line of business over a larger revenue base. Company-owned Learning Center expense increased by $5.7 million, to $16.1 million or 87% of Company-owned Learning Center services revenues for the year ended December 31, 1996, compared to $10.4 million, or 90% of Company-owned Learning Center services revenues for the year ended December 31, 1995. $3.1 million of the increase relates to the acquisition of 11 Learning Centers. The remaining increase in expenses were primarily advertising, labor and general overhead associated with increased Center enrollment. Expenses for Centers operating over 12 months as of December 31, 1996 accounted for $2.2 million of the increase for 1996, and represent 64% of incremental same Center revenue. The opening of one new Company-owned Learning Center since December 31, 1995 increased expenses by $375,000, or 107% of the revenue of that Center for the year ended December 31, 1996. Contract educational services expense increased by $4.0 million to $29.1 million, or 87% of contract educational services revenues during 1996, compared to $25.1 million, or 92% of contract educational services revenues during 1995. The decline in contract educational services expenses as a percentage of revenue resulted from increased revenues without corresponding increases in overhead. Operating expenses for Title I schools increased $2.9 million for the year ended December 31, 1996, while operating expenses for PACE accounted for $1.1 million of the increase for the same period. The PACE increase results from the fact that the acquisition, accounted for as a purchase, was effective February 28, 1995, and as such the 1995 results only reflect ten months of PACE results. Testing services expenses for the year ended December 31, 1996 increased by $41.2 million to $71.5 million, or 82% of total testing services revenue, compared to $30.3 million, or 88% of total testing services revenue for the year ended December 31, 1995. The increase resulted primarily from the acquisition of Drake and the increased registration and delivery costs associated with additional volume of tests. 1996 expenses include $2.4 million of amortization of contract rights related to the Drake acquisition. 1995 expenses included $4.1 million of amortization of contract rights, imputed interest and salary termination charges related to the Drake acquisition. Excluding non- 18 recurring charges, testing services expenses as a percentage of testing services revenues increased to 79% in 1996 from 76% in 1995. The principal reasons for the percentage increase in 1996 are the full year of amortization of goodwill associated with the Drake acquisition and the partial year amortization of certain deferred contract costs and contract rights in 1996 and increased staffing levels required to meet the growth in business volumes that occurred during 1996 and expected growth in business volumes in 1997. General and administrative expense increased by $2.6 million to $8.8 million during 1996 from $6.2 million during 1995, but decreased as a percentage of revenues from 7% to 6%. The percentage decline resulted from increased revenues from all segments without corresponding increases in overhead. Interest expense decreased by $1.3 million to $0.5 million during 1996 from $1.8 million during 1995 due principally to the $1.1 million of interest expense imputed on the purchase of Drake discussed in the following section. Comparison of results for the year ended December 31, 1995 to the year ended December 31, 1994. Revenues. Total revenues increased by $40.8 million, or 86%, to $88.0 million for the year ended December 31, 1995, compared to the same period in 1994. This increase resulted from higher revenues in all business segments--core educational services, testing services and contract educational services. Core educational services revenues increased by $6.1 million, or 30%, to $26.1 million for 1995. Franchise royalties increased $1.3 million or 16%, for 1995. This increase in franchise royalties was due to a net increase of 31 new Centers in new territories and 15 new satellite Centers (Centers operating within existing franchise territories) in 1995, combined with an overall 14% increase in revenues at existing Learning Centers open for more than one year. Franchise sales fees increased $876,000 to $2.1 million for the year ended December 31, 1995 compared to the same period in 1994. For the year ended December 31, 1995, there were two area development agreements sold for $550,000 and 43 franchise Center licenses sold, as compared to 31 franchise Center licenses and one $117,000 area development agreement sold in the same period in 1994. Revenues from Company-owned Learning Centers increased $2.9 million, or 34%, to $11.5 million during 1995. The increase primarily resulted from same center revenue growth related to student enrollment increases. Product sales increased $954,000 or 43%, to $3.2 million for 1995. Approximately $338,000 of the increase in product sales was due to sales of new versions of Math and Algebra programs (which began in the second half of 1994) with the remainder resulting from overall increases in student enrollment. Contract educational services revenue increased by $13.8 million to $27.4 million for the year ended December 31, 1995. Revenues from public and non-public school contracts increased $5.4 million for the year ended December 31, 1995, due to $2.8 million in revenue from new public and non-public school contracts obtained after December 31, 1994, and by a $2.6 million increase in revenues from public and non-public school contracts existing in 1994 accounted for using the percentage of completion method. Revenues from PACE accounted for $8.3 million of the increase. The PACE acquisition, accounted for as a purchase, was effective February 28, 1995. Testing service revenues increased $20.9 million to $34.6 million for the year ended December 31, 1995. Testing services revenues accounted for approximately 39% of total revenues for the year ended December 31, 1995, compared to 29% of total revenues for the same period in 1994. Revenues from Drake, acquired as of September 30, 1995, accounted for $11.7 million of the increase and consisted primarily of revenues from information technology clients. Revenue from the ETS international contract accounted for $3.7 million of the increase resulting from the fact that the contract was in effect during the entire 1995 period, as compared to six 19 months in 1994, as well as increasing activity in international development. During 1995, Sylvan sold the exclusive development rights for testing centers in India for $500,000 and in the Middle East for $500,000. The remaining increase in testing services revenues for the year ended December 31, 1995 was attributable to a $1.7 million increase in revenue from the NCLEX test for the licensing of registered and practical nurses, which began in April 1994, $769,000 of revenue from test development fees for ASVAB (the Armed Services Vocational Aptitude Battery tests) and other test volume increases in the GRE, PRAXIS and FAA tests. Cost and Expenses. Franchise services expense increased by $2.0 million, to $5.9 million or 52% of franchise royalties and sales for the year ended December 31, 1995, compared to $3.9 million, or 42% of franchise royalties and sales for the year ended December 31, 1994. The reduced margin in 1995 primarily relates to increased marketing and advertising costs incurred to produce a new national advertising campaign. Company-owned Learning Center expense increased $2.7 million, to $10.4 million or 90% of Company-owned Learning Center services revenues for the year ended December 31, 1995, compared to $7.7 million, or 89% of Company-owned Learning Center services revenues for the year ended December 31, 1994. The increased expenses were primarily advertising, labor and general overhead associated with increased Center enrollment. Contract educational services expense increased $13.2 million to $25.1 million, or 92% of contract educational services revenues during 1995, compared to $11.9 million, or 88% of contract educational services revenues during 1994. Operating expenses for public and non-public school contracts increased $5.4 million for the year ended December 31, 1995, while operating expenses for PACE accounted for $7.5 million for the same period. The increase in contract educational services expense as a percent of related revenues during the year resulted from the following three factors: (i) 1994 included consulting fee revenues of $500,000 with no associated costs; (ii) higher total cost estimates relating to contracts obtained from READS accounted for under the percentage of completion method and (iii) PACE operating margins of approximately 10% during 1995 reduced overall segment margins. Testing services expense for 1995 increased $16.3 million to $30.3 million, or 88% of total testing service revenues, compared to $14.0 million, or 103% of total testing services revenues for 1994. The decrease in testing services expense as a percentage of testing services revenues was attributable to several factors, including the fixed and semi-variable nature of test delivery and registration costs included in this segment. In addition, Sylvan recognized $1 million of testing revenues in the 1995 period related to the sale of exclusive development rights for testing centers in India and the Middle East and $769,000 of testing revenues related to the contract to develop the ASVAB test. These revenues have significantly higher margins than fees for test delivery and registration services. The ability of Sylvan to generate fees in the future from the sale of development rights and test development services cannot be assured. Testing services expenses during the fourth quarter of 1995 included amortization expense of $2.1 million related to contract rights recorded upon the acquisition of Drake, which is primarily composed of amortization related to two contracts which will be fully amortized by June 1996, and $1.1 million of non-recurring interest expense imputed on the unpaid purchase price from September 30, 1995 to December 13, 1995, the closing date for the acquisition. The Company also paid salaries to Drake employees which have been identified and notified of their termination totalling approximately $800,000 in the fourth quarter of 1995. General and administrative expense increased by $1.2 million to $6.2 million during 1995 from $5.0 million during 1994, but decreased as a percentage of revenues from 11% to 7%. The percentage decline resulted from increased revenues from all segments without corresponding increases in overhead. Interest expense increased by $1.2 million to $1.8 million during 1995 from $0.6 million during 1994 due principally to the $1.1 million of interest expense imputed on the purchase of Drake discussed above. 20 During 1995 Sylvan recorded a non-recurring loss on impairment of assets of $3.3 million associated with the Drake acquisition. The Drake acquisition and resulting consolidation of operations resulted in the determination that certain assets in this division are not recoverable and, therefore, have been written down to their realizable value. During 1995 the Company reduced its valuation allowance relating to deferred income tax assets by $3.1 million. Approximately $1.1 million of this reduction was recorded through the allocation of the Drake purchase price. The remaining decrease of $2.0 million reduced the Company's effective tax rate by 54%. Liquidity and Capital Resources Cash provided by operating activities was $23.3 million for the year ended December 31, 1996 as compared to cash used in operating activities of $3.0 million in the comparable period of 1995. Cash flow from operations before working capital changes increased from $14.8 million in the 1995 period to $29.2 million in the 1996 period, primarily as a result of significant overall growth in Company operations before considering non-cash charges, which primarily consist of depreciation, amortization and deferred income taxes. Sylvan's investment in working capital has significantly reduced cash flow, particularly as a result of the growth in accounts and notes receivable. The $9.0 million increase in accounts and notes receivable is the result of a 79% increase in revenue during 1996. Of the $9.0 million cash flow reduction attributable to an increase in accounts and notes receivable, $4.9 million is related to Sylvan's expanding testing contracts and $1.1 million is related to new and expanded public school contracts. The increase in amounts due from expanding testing contracts resulted from higher domestic testing volumes and a significant increase in billings under the international contract with ETS to establish overseas testing capacity. Payments are typically made by ETS monthly for domestic activity and quarterly for international services. Accounts receivable from public school-based programs have increased due to billings under new contracts obtained in 1996. Increases in revenue for all business segments contributed to the remaining accounts and note receivable increase of $3.0 million. Sylvan believes that uncollectible accounts receivable will not have a significant effect on future liquidity, as a significant portion of its accounts receivable are due from enterprises with substantial financial resources, such as ETS and governmental units. Sylvan continues to incur expenditures for additions to property and equipment, which totaled $13.3 million in the 1996 period. These additions consist primarily of furniture and equipment for general business expansion, including expenditures for new public school-based programs' classrooms and equipment needed for overseas testing centers operated by Sylvan. Under the international testing contract with ETS, Sylvan is reimbursed for overseas equipment expenditures as the equipment is depreciated. This reimbursement includes a financing charge over the reimbursement period. Sylvan may spend up to $1.8 million over the next 18 months to develop licensing and certification tests under contracts with various testing organizations. The increase in other investments resulted primarily from the purchase of non-voting convertible preferred stock in Jostens Learning Corporation for $21.9 million by issuance of 824,000 shares of the stock of the Company. The Company's accounts payable and accrued expenses have increased by $13.7 million to $26.0 million at December 31, 1996 from $12.3 million at December 31, 1995. Approximately $3.3 million of the increase relates to the 1996 acquisition of WSI, which was accounted for under the purchase method of accounting. In addition, $4.9 million of the increase relates to accrued payments due to non-affiliated testing centers as discussed in Note 2 to the 1996 audited financial statements. The remaining $5.5 million increase relates to the overall increase in expense levels due to the Company's growth. The Company's deferred revenue has increased by $2.9 million 21 to $9.4 million at December 31, 1996 from $6.5 million at December 31, 1995. Approximately $1.6 million of the increase relates to the acquisition of WSI. The remaining increase of $1.3 million relates to the overall increase in business volumes due to the Company's growth. The noncurrent liabilities due to former shareholders of Drake and Wall Street Institute will be satisfied through issuance of common stock in 1997. The Company paid the NASD $4.9 million during the year ended December 31, 1996 pursuant to an agreement related to the management of the NASD testing centers and the acquisition of contract rights to provide testing based on a ten year contract with the NASD. The Company also acquired the computer equipment in the NASD testing centers. During the year ended December 31, 1996, the Company incurred $10.4 million in costs to obtain new contracts with certain Drake Authorized Testing Centers to deliver computer-based testing. These expenditures were recorded as deferred contract costs and are being amortized over the contract terms of three years. The Company has entered into a loan agreement with a bank, (hereinafter the "credit line") that provides an unsecured revolving line of credit. The credit line allows the Company to borrow a maximum of $15.0 million through the expiration date of May 31, 1998, at which time the total outstanding principal balance can be converted into a term loan, at the option of the Company. The term loan would be repaid over 24 months from the time of issuance. The credit line and the term loan both bear interest at a floating rate equal to the 30 day London Interbank Offered Rate ("LIBOR") plus 1.15% per annum. The credit line had no outstanding borrowings at December 31, 1996. During 1996 the Company repaid $3.5 million of borrowings made under a previous line of credit agreement. During 1996, Sylvan received $5.1 million of cash as a result of the exercise of stock options and warrants to purchase 661,700 shares of Common Stock. Sylvan believes that its capital resources will be sufficient over the next 12 to 24 months to fund expected expansion of its business, including working capital needs and expected investments in property and equipment. Sylvan continues to review other companies in the education or computer-based testing industries for potential acquisitions. Additional capital resources may be necessary to acquire and thereafter operate additional businesses. Contingent Matters In connection with the PACE acquisition, Sylvan will be required to make a contingent payment equal to 6.5 times PACE's 1997 earnings before interest and income taxes ("EBIT"). If PACE's EBIT is less than $2.7 million for 1997, the PACE shareholders may elect to have the payment calculation based on EBIT for either calendar year 1998 or 1999. The contingent payment is payable partially in cash and partially in Common Stock. The amount of any contingent payment to the PACE Stockholders will be capitalized as goodwill when paid and amortized over the remaining estimated recovery period. PACE is expected to meet its cash needs from its operations. PACE provides most of its services to large corporations with favorable credit histories. PACE operations are not capital intensive and historically have generated positive cash flow from operations. The agreement with Drake provides for future contingent payments based on achievement of certain specified revenue targets between 1997 and 1998 (or 1999 at election of the Sellers). The contingent payment of up to $40.0 million, if earned, is payable 12.5% in cash (or more at discretion of the Company) with the remainder in shares of Common Stock. The amount of any contingent payments will be capitalized as goodwill when paid and amortized over the remaining estimated recovery period. Based on testing revenues earned by the Company in 22 1996, 20% of the Revenue Escrow Shares have been earned. These 357,143 Revenue Escrow Shares will be released to the sellers in April 1997. At December 31, 1996, an additional $8.1 million of goodwill which relates to the earned shares was recorded which will be amortized over the remaining life of 24 years. Effects of Inflation Inflation has not had a material effect on Sylvan's revenues and income from continuing operations in the past three years. Inflation is not expected to have a material future effect. Quarterly Fluctuations Sylvan's revenues and operating results have varied substantially from quarter to quarter and may continue to vary, depending upon the timing of implementation of new computer-based testing contracts and contracts funded under Title I or similar programs. Based on Sylvan's limited experience, revenues generated by computer-based testing services may vary based on the frequency or timing of delivery of individual tests and the speed of test administrators' conversion of tests to computer-based format. Revenues or profits in any period will not necessarily be indicative of results in subsequent periods. ITEM 8. FINANCIAL STATEMENTS The financial statements of the Company are included on pages 30 through 60 of the report as indicated on page 29. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE There were no changes in accountants, disagreements, or other events requiring reporting under this Item. 23 PART III. ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF SYLVAN LEARNING SYSTEMS, INC. Information required under the caption "Directors and Executive Officers of Sylvan Learning Systems, Inc." will be included in the Form 10-K/A, which will be filed by April 30, 1997. Information required pertaining to compliance with Section 16 (a) of the Securities and Exchange Act of 1934 under the caption "Directors and Executive Officers of Sylvan Learning Systems, Inc." will be included in the Form 10-K/A, which will be filed by April 30, 1997. ITEM 11. EXECUTIVE COMPENSATION Information required under the caption "Executive Compensation" will be included in the Form 10-K/A, which will be filed by April 30, 1997. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT Information required under the caption "Security Ownership of Certain Beneficial Owners and Management" will be included in the Form 10-K/A, which will be filed by April 30, 1997. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Information required is set forth under the caption "Certain Relationships and Related Transactions" will be included in the Form 10-K/A, which will be filed by April 30, 1997. PART IV. ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K (a) The following documents are filed as a part of this report: 1. Financial Statements The response to this portion of Item 14 is submitted as a separate section of this Report. 24 2. Financial Statement Schedules Schedule II - Valuation and Qualifying Accounts Financial Statements and Schedules Omitted: All other schedules for which provision is made in the applicable accounting regulation of the Securities and Exchange Commission are inapplicable and therefore have been omitted. (b) Reports on Form 8-K: The following reports on Forms 8-K and 8-K/A were filed by the Registrant during the fourth quarter ended December 31, 1996: 1) Report on Form 8-K dated November 8, 1996 and amended under Form 8-K/A on December 9, 1996 relating to a Securities Purchase Agreement dated November 1, 1996 by and between Registrant and JLC Holdings, Inc., Software Systems Corp and JLC Learning Corporation. 2) Report on Form 8-K dated November 18, 1996 relating to a complaint filed against Registrant by ACT, Inc. 25 3. Exhibits (a) Exhibits:
Exhibit Number Description ------ ----------- 3.01 Articles of Amendment and Restatement of the Charter.(b) 3.02 Amended and Restated Bylaws.(b) 3.03 Amended and Restated Bylaws dated September 27, 1996. 4.01 Specimen Common Stock Certificate.(b) 4.02 Registration Rights Agreement dated as of January 26, 1993 by and among Sylvan KEE Systems, Inc., the holders of Junior Preferred Stock and the investors listed on Exhibit A hereto.(b) 4.03 Form of Warrant to Purchase Common Stock of Sylvan KEE Systems, Inc. dated January 26, 1993.(b) 4.04 Form of Warrant to Purchase Common Stock of Sylvan KEE Systems, Inc. dated July 14, 1993.(b) 4.05 Form of Option to Purchase Common Stock dated July 27, 1995.(a) 4.06 Rights Agreement by and between Registrant and State Street Bank & Trust Company dated as of October 1, 1996.(i) 5.01 Opinion of Piper & Marbury L.L.P.(a) 10.01 Agreement of Lease by and between Rouse & Associates-Quarry and KEE Systems, Inc. dated May 15, 1990.(b) 10.02 Agreement of Lease by and between Rouse & Associated-Quarry and KEE Systems, Inc. dated May 6, 1990.(b) 10.03 Lease Agreement between Harbor East Parcel G-Office, LLC and Sylvan Learning Systems, Inc. dated August 24, 1995.(c) 10.04 Master Agreement Between Educational Testing Service and Sylvan Learning Systems, Inc. for Computer-Based Testing Services at Sylvan Technology Centers dated September 1, 1993. (Portions of this document have been omitted pursuant to a request for confidential treatment.)(b) 10.05 Term Lease Master Agreement between Sylvan Learning Systems and IBM Credit Corporation dated March 31, 1992.(b) 10.06 Director Stock Option Plan.(b) 10.07 Employee Stock Option Plan.(b) 10.08 Management Stock Option Plan.(b) 10.19 KEE, Incorporated Non-Qualified Stock Option Plan.(b) 10.10 Sylvan Employee Confidentiality and Non-Disclosure Agreement and Covenant Not to Compete.(b) 10.11 $2.5 Million Revolving Loan, $3.76 Million Term Loan and $5.0 Million Revolving Loan with NationsBank.(d) 10.12 Indemnification Agreement by and between Sylvan KEE Systems, Tom D. Wippman and David H. Jacobson dated September 17, 1992.(b) 10.13 Guaranty Agreement by Sylvan KEE Systems in favor of Encyclopedia Britannica, Inc. dated October 1, 1992.(b) 10.14 Form of Non-Competition Agreement by and between Sylvan KEE Systems, Inc. and Douglas L. Becker dated January 26, 1993.(b) 10.15 Certification and Testing Services Agreement by and between TRO Learning, Inc. and Sylvan Learning Systems, Inc. dated August 31, 1993.(b) 10.16 Plato Educational Products Purchase and License Agreement by and between TRO Learning, Inc. and Sylvan Learning Systems, Inc. dated August 31, 1993.(b) 10.17 Form of Franchise Agreement.(b) 10.18 Form of Technology Center Agreement.(b) 10.19 Agreement and Plan of Reorganization dated July 14, 1994 by and between Registrant and Learning Services, Inc.(e)
26 10.20 Agreement and Plan of Reorganization dated July 14, 1994 by and between Registrant and Loralex Learning, Inc.(e) 10.21 Agreement and Plan of Reorganization dated February 17, 1995 by and between Registrant and Remedial Education and Diagnostic Services, Inc.(f) 10.22 Agreement and Plan of Reorganization dated as of March 1, 1995, by and between Registrant and the PACE Group.(g) 10.23 Agreement and Plan of Reorganization dated as of July 28, 1995, by and between Registrant and Drake Prometric, L.P.(h) 10.24 Lease Agreement dated August 24, 1995, First Amendment dated May 13, 1996 and Second Amendment dated November 11, 1996 by and between Registrant and Harbor East, LLC. 10.25 Revolving Credit Note to NationsBank, N.A. dated December 31, 1996. 10.26 Senior Management Option Plan dated March 29, 1996. 10.27 Securities Purchase Agreement by and between Registrant and JLC Holdings, Inc., Software Systems Corporation and JLC Learning Corporation dated November 1, 1996.(j) 11.00 Statement re: Computation of Per Share Earnings. 21.00 Subsidiaries of the Registrant. 23.01 Consent of Ernst & Young LLP.
(a) Incorporated by reference from the Exhibits to the Company's Registration Statement on Form S-1 dated February 26, 1996. (b) Incorporated by reference from the Exhibits to the Company's Registration Statement on Form S-1 (Registration No. 33-69558). (c) Incorporated by reference from the Exhibits to the Company's Registration Statement on Form S-3 as amended by a Registration Statement on Form S-1 (No. 33-97870). (d) Incorporated by reference from the Exhibits to the Company's Quarterly Report for the Quarter ended September 30, 1995. (e) Incorporated by reference to the Company's Current Report on Form 8-K dated July 20, 1994. (f) Incorporated by reference to the Company's Current Report on Form 8-K dated February 27, 1995. (g) Incorporated by reference to the Company's Current Report on Form 8-K dated May 5, 1995. (h) Incorporated by reference to the Company's Current Report on Form 8-K dated July 21, 1995. (i) Incorporated by reference to the Company's Current Report on Form 8-K dated September 27, 1996. (j) Incorporated by reference to the Company's Current Report on Form 8-K dated November 1, 1996. 27 SIGNATURES ---------- Pursuant to the requirements of Section 13 of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf of the undersigned, thereunto duly authorized on March 26, 1997. SYLVAN LEARNING SYSTEMS, INC. (Registrant) By: /s/ R. Christopher Hoehn-Saric ------------------------------ R. Christopher Hoehn-Saric Chairman of the Board Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on March 26, 19967
Signature Capacity - --------- -------- /s/ R. Christopher Hoehn-Saric Director and Chairman of - ----------------------------------- the Board R. Christopher Hoehn-Saric /s/ Douglas L. Becker Secretary - ----------------------------------- Douglas L. Becker /s/ B. Lee McGee Vice President and Chief - ----------------------------------- Financial Officer B. Lee McGee /s/ Donald Berlanti Director - ----------------------------------- Donald Berlanti /s/ Phillip Samper Director - ----------------------------------- Phillip Samper /s/ James H. McGuire Director - ----------------------------------- James H. McGuire
28 Item 14 (a) (1) INDEX TO FINANCIAL STATEMENTS
Page ---- The Company: Report of Independent Auditors.......................................................................................... 30 Consolidated Balance Sheets as of December 31, 1995 and December 31, 1996............................................... 31 Consolidated Statements of Operations for the years ended December 31, 1994, 1995 and 1996.............................. 33 Consolidated Statements of Stockholders' Equity for the years ended December 31, 1994, 1995 and 1996.............................................................................................................. 34 Consolidated Statements of Cash Flows for the years ended December 31, 1994, 1995 and 1996.............................. 35 Notes to Consolidated Financial Statements.............................................................................. 36 Item 14 (a) 2 - Financial Statement Schedule: Schedule II - Valuation and Qualifying Accounts......................................................................... 61
29 Report of Independent Auditors The Board of Directors and Stockholders Sylvan Learning Systems, Inc. We have audited the accompanying consolidated balance sheets of Sylvan Learning Systems, Inc. and subsidiaries as of December 31, 1995 and 1996, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the three years in the period ended December 31, 1996. Our audits also included the financial statement schedule listed in the Index at Item 14(a). These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Sylvan Learning Systems, Inc. and subsidiaries at December 31, 1995 and 1996, and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 1996, in conformity with generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein. /s/ Ernst & Young Baltimore, Maryland February 27, 1997 30 Sylvan Learning Systems, Inc. and Subsidiaries Consolidated Balance Sheets
December 31, December 31, 1995 1996 ------------- ------------- Assets Current assets: Cash and cash equivalents $ 2,528,865 $ 11,082,263 Available-for-sale securities 30,379,065 16,298,988 Receivables: Accounts receivable 20,578,345 31,518,862 Costs and estimated earnings in excess of billings on uncompleted contracts 3,028,558 3,565,201 Notes receivable 1,583,843 3,000,190 ------------- ------------- 25,190,746 38,084,253 Allowance for doubtful accounts (1,466,027) (1,378,854) ------------- ------------- 23,724,719 36,705,399 Inventory 3,639,392 4,469,577 Deferred income taxes 1,271,925 619,553 Prepaid expenses 1,942,806 2,643,885 ------------- ------------- Total current assets 63,486,772 71,819,665 Notes receivable, less current portion 1,875,359 474,043 Costs and estimated earnings in excess of billings on uncompleted contracts, less current portion 673,181 549,448 Property and equipment: Furniture and equipment 19,564,005 30,556,702 Leasehold improvements 1,958,236 5,427,734 ------------- ------------- 21,522,241 35,984,436 Accumulated depreciation (6,142,009) (11,271,237) ------------- ------------- 15,380,232 24,713,199 Intangible assets: Goodwill 74,653,356 103,986,427 Contract rights 7,857,346 13,881,337 Other 2,451,091 2,570,091 ------------- ------------- 84,961,793 120,437,855 Accumulated amortization (4,640,450) (10,736,219) ------------- ------------- 80,321,343 109,701,636 Deferred contract costs, net of accumulated amortization of $684,177 as of December 31, 1995 and $2,066,893 as of December 31, 1996 2,528,029 13,230,340 Investments in affiliates 182,320 3,895,602 Other investments 338,681 24,219,888 Other assets 620,754 1,975,030 ------------- ------------- Total assets $ 165,406,671 $ 250,578,851 ============= =============
31 Sylvan Learning Systems, Inc. and Subsidiaries Consolidated Balance Sheets
December 31, December 31, 1995 1996 ------------- ------------- Liabilities and stockholders' equity Current liabilities: Accounts payable and accrued expenses $ 12,253,614 $ 25,962,463 Bank lines of credit 3,500,000 -- Current portion of long-term debt 1,895,567 2,474,607 Billings in excess of costs and estimated earnings on uncompleted contracts 237,644 65,465 Due to former shareholders of Wall Street Institute -- 4,920,565 Deferred revenue 6,487,134 9,413,183 Other current liabilities 795,967 596,311 ------------- ------------- Total current liabilities 25,169,926 43,432,594 Long-term debt, less current portion 2,520,512 1,574,682 Deferred income taxes 884,612 2,338,154 Due to former shareholders of Drake -- 8,142,856 Due to former shareholders of Wall Street Institute -- 15,150,115 Other long-term liabilities 367,790 349,771 Commitments and contingent liabilities -- -- Stockholders' equity: Preferred stock, par value $.01 per share--authorized 10,000,000 shares, no shares issued and outstanding as of December 31, 1996 and 1995 -- -- Common stock, par value $.01 per share--authorized 40,000,000 shares, issued and outstanding shares of 20,930,193 as of December 31, 1995 and 22,566,215 as of December 31, 1996 209,302 225,662 Additional paid-in capital 139,793,913 168,555,237 Foreign currency translation adjustments 70,000 (4,131) Retained earnings (accumulated deficit) (3,609,384) 10,813,911 ------------- ------------- Total stockholders' equity 136,463,831 179,590,679 ------------- ------------- Total liabilities and stockholders' equity $ 165,406,671 $ 250,578,851 ============= =============
See accompanying notes. 32 Sylvan Learning Systems, Inc. and Subsidiaries Consolidated Statements of Operations
Years Ended December,31, ----------------------------------------------------------- 1994 1995 1996 ----------------------------------------------------------- Revenues Franchise royalties $ 7,920,666 $ 9,222,996 $ 11,159,986 Franchise sales fees 1,255,835 2,131,990 3,183,954 Company-owned learning center services 8,605,254 11,520,024 18,527,854 Product sales 2,233,779 3,188,181 3,927,493 Contract educational services 13,563,560 27,361,930 33,366,684 Testing services 13,664,969 34,565,697 86,950,689 ------------- ------------- ------------- Total revenues 47,244,063 87,990,818 157,116,660 Cost and expenses Franchise services 3,840,575 5,875,095 6,531,733 Company-owned learning center expense 7,655,129 10,368,983 16,073,377 Cost of product sales 1,758,857 2,431,156 2,951,771 Contract educational services expense 11,880,494 25,119,852 29,070,498 Testing services expense 14,024,666 30,348,283 71,518,481 General and administrative expense 4,998,399 6,205,480 8,755,406 Loss on impairment of assets -- 3,315,541 -- ------------- ------------- ------------- Total expenses 44,158,120 83,664,390 134,901,266 ------------- ------------- ------------- Operating income 3,085,943 4,326,428 22,215,394 Other income (expense) Investment and other income 708,390 872,245 1,543,785 Interest expense (556,488) (1,832,377) (529,469) Gain on sale of company center 151,214 -- -- Equity in net income of unconsolidated subsidiaries 72,747 390,692 363,396 ------------- ------------- ------------- Income before income taxes 3,461,806 3,756,988 23,593,106 Income taxes (76,249) (209,159) (8,850,000) ------------- ------------- ------------- Net income $ 3,385,557 $ 3,547,829 $ 14,743,106 ============= ============= ============= Earnings per common and common equivalent share $0.23 $0.22 $0.60 ============= ============= ============= Earnings per common share, assuming full dilution $0.22 $0.21 $0.60 ============= ============= =============
See accompanying notes. 33 Sylvan Learning Systems, Inc. and Subsidiaries Consolidated Statements of Stockholders' Equity
Foreign Retained Additional Currency Earnings Total Common Paid-In Translation (Accumulated Stockholders' Stock Capital Adjustments Deficit) Equity -------- ------------ ----------- ------------ ------------ Balance at January 1, 1994 $125,719 $ 34,382,852 $ -- $(10,537,770) $ 23,970,801 Options and warrants exercised for purchase of 454,935 shares of common stock 4,549 3,048,194 3,052,743 Shares of common stock issued to ETS 1,305 1,498,695 1,500,000 Additional registration costs relating to 1993 stock offering (69,950) (69,950) Distributions to shareholders of pooled entity (5,000) (5,000) Net income for 1994 3,385,557 3,385,557 -------- ------------ -------- ------------ ------------ Balance at December 31, 1994 131,573 38,859,791 -- (7,157,213) 31,834,151 Options and warrants exercised for purchase of 731,871 shares of common stock 7,319 4,210,937 4,218,256 Issuance of 262,446 shares of common stock in connection with the acquisition of PACE 2,624 3,158,237 3,160,861 Issuance of 3,928,572 shares of common stock in connection with the acquisition of Drake 39,286 49,460,714 49,500,000 Issuance of 2,850,000 shares of common stock, net of offering costs of $3,367,266 28,500 44,104,234 44,132,734 Foreign currency translation adjustment 70,000 70,000 Net income for 1995 3,547,829 3,547,829 -------- ------------ -------- ------------ ------------ Balance at December 31, 1995 209,302 139,793,913 70,000 (3,609,384) 136,463,831 Options and warrants exercised for purchase of 661,700 shares of common stock, including income tax benefit of $1,887,006 6,617 6,991,426 6,998,043 Issuance of 824,000 shares of common stock in connection with the investment in Jostens Learning Corporation 8,240 21,209,760 21,218,000 Issuance of 116,605 shares of common stock in connection with other acquisitions 1,166 27,225 (319,811) (291,420) Exercise of underwriter's overallotment option to purchase 33,750 shares of common stock in connection with 1995 public stock offering 337 532,913 533,250 Foreign currency translation adjustment (74,131) (74,131) Net income for 1996 14,743,106 14,743,106 -------- ------------ -------- ------------ ------------ Balance at December 31, 1996 $225,662 $168,555,237 $ (4,131) $ 10,813,911 $179,590,679 ======== ============ ======== ============ ============
See accompanying notes. 34 Sylvan Learning Systems, Inc. and Subsidiaries Consolidated Statements of Cash Flows
Years Ended December 31, --------------------------------------------------- 1994 1995 1996 --------------------------------------------------- Operating activities Net income $ 3,385,557 $ 3,547,829 $ 14,743,106 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation 2,429,646 3,351,925 5,129,228 Amortization 1,000,446 4,323,351 7,478,485 Interest imputed on purchase of Drake -- 1,125,000 -- Loss on impairment of assets -- 3,315,541 -- Provision for doubtful accounts 183,628 (42,631) 55,738 Deferred income taxes -- (387,313) 2,105,914 Equity in net income of unconsolidated subsidiaries (72,747) (390,692) (363,396) Other (268,214) -- -- Changes in operating assets and liabilities: Accounts and notes receivable (3,213,189) (10,108,638) (9,041,497) Cost and estimated earnings in excess of billings on uncompleted contracts (2,528,600) (1,021,779) (412,910) Inventory (994,685) (1,457,262) (238,312) Prepaid expenses (57,898) (1,359,046) (404,354) Other assets (461,105) (246,085) (1,068,363) Accounts payable and accrued expenses (260,876) (3,194,458) 4,326,761 Billings in excess of costs and estimated earnings on uncompleted contracts 262,208 (455,600) (233,665) Deferred revenue and other long-term liabilities 164,423 (39,159) 1,213,549 ------------ ------------ ------------ Net cash provided by (used in) operating activities (431,406) (3,039,017) 23,290,284 ------------ ------------ ------------ Investing activities Change in advances to unconsolidated subsidiaries (104,291) 287,970 (98,922) Purchase of available-for-sale securities (17,615,859) (91,603,867) (31,260,524) Proceeds from sale of available-for-sale securities 13,245,422 66,595,240 45,340,601 Investment in and advances to affiliates -- -- (3,250,964) Increase in other investments -- -- (2,329,874) Proceeds from sale of company-owned center 119,084 -- -- Purchase of property and equipment (7,940,669) (4,802,278) (13,271,749) Refund of deposits on equipment 31,104 -- -- Purchase of contract rights -- -- (4,890,576) Cash received upon acquisition of PACE -- 682,411 -- Cash received upon acquisition of Wall Street Institute -- -- 2,012,565 Purchase of Drake Prometric, L. P., including direct costs of acquisition, net of cash acquired -- (16,979,737) -- Cash paid for intangible assets -- (500,000) -- Expenditures for deferred contract costs and other assets (1,779,011) (801,586) (6,941,769) ------------ ------------ ------------ Net cash used in investing activities (14,044,220) (47,121,847) (14,691,212) ------------ ------------ ------------ Financing activities Payments to stockholders (238,956) (775,223) (199,656) Proceeds from exercise of options and warrants 2,982,794 4,218,256 5,111,037 Proceeds from issuance of common stock 1,500,000 44,132,734 533,250 Proceeds from issuance of long-term debt 4,800,000 -- -- Payments on long-term debt and capital lease obligations (2,163,581) (2,175,695) (1,916,174) Proceeds from bank lines of credit -- 3,500,000 -- Payments on bank lines of credit -- -- (3,500,000) ------------ ------------ ------------ Net cash provided by financing activities 6,880,257 48,900,072 28,457 ------------ ------------ ------------ Effects of exchange rate changes on cash -- 70,000 (74,131) ------------ ------------ ------------ Net increase (decrease) in cash and cash equivalents (7,595,369) (1,190,792) 8,553,398 Cash and cash equivalents at beginning of period 11,315,026 3,719,657 2,528,865 ------------ ------------ ------------ Cash and cash equivalents at end of period $ 3,719,657 $ 2,528,865 $ 11,082,263 ============ ============ ============
See accompanying notes. 35 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 1. Basis of Presentation and Description of Business Sylvan Learning Systems, Inc. and subsidiaries (the Company) is an international provider of educational and testing services. The Company conducts operations in three separate business segments - core educational services, testing services, and contract educational services. The core educational services segment designs and delivers individualized tutorial services to school-age children and adults through a network of 620 franchised and Company-owned Sylvan Learning Centers in operation in 49 states, five Canadian provinces, Hong Kong, Guam and South Korea. In addition, in December 1996 the Company acquired Wall Street Institute International, B.V. and its commonly controlled affiliates. Wall Street and its affiliates teach the English language in non-English speaking countries in Europe and Latin America through a network of over 170 franchised and company-owned centers. The Company's testing segment ("Sylvan Prometric") administers computer-based tests for major corporations, professional associations and governmental agencies through a network of certification centers which are located throughout the world. The contract educational services segment provides educational programs to employees of large corporations, and to public and non-public school districts through contracts funded by federal Title I and state-based programs. The consolidated financial statements include the accounts of Sylvan Learning Systems, Inc. and its wholly-owned subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. Investments in affiliates owned more than 20%, but not in excess of 50%, and corporate joint ventures are reported using the equity method. The preparation of the financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect reported amounts and related disclosures. Actual results could differ from those estimates. 2. Accounting Policies Cash Equivalents The Company considers all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents. 36 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 2. Accounting Policies (continued) Investments Available-for-sale securities are carried at fair value, with the unrealized gains and losses, net of tax, reported in a separate component of stockholders' equity. The amortized cost of debt securities in this category is adjusted for amortization of premiums and accretion of discounts to maturity. Such amortization is included in investment income. Realized gains and losses and declines in value judged to be other than temporary on available-for-sale securities are included in investment income. The cost of securities sold is based on the specific identification method. Interest and dividends on securities classified as available-for-sale are included in investment income. Inventory Inventory, consisting primarily of computer software and educational, instructional, and marketing materials and supplies, is stated at the lower of cost (first-in, first-out) or market value. Accounting For Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of In 1995, the Company adopted the provisions of Financial Accounting Standards Board Statement No. 121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of. The Statement prescribes the accounting for the impairment of long-lived assets, such as property and equipment and intangible assets, as well as the accounting for long-lived assets that are held for disposal. The initial adoption of this Statement in 1995 did not have a material impact on the reported results of operations of the Company. Property and Equipment Property and equipment is stated at cost. Depreciation is provided using the straight-line method over the estimated useful lives of the assets. Intangible Assets Goodwill consists of the cost in excess of fair value of the net assets of entities acquired in purchase transactions, and is amortized over the expected periods of benefit, which range from 10 to 25 years. At December 31, 1995 and 1996, accumulated amortization of goodwill is $1,110,944 and $4,803,586, respectively. 37 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 2. Accounting Policies (continued) Contract rights consist of the allocated cost of acquiring computer-based testing contracts in business combinations accounted for as purchases. Contract rights are being amortized using the straight-line method over the term of the related contract, which range from three months to 10 years. At December 31, 1995 and 1996, accumulated amortization of contract rights is $2,978,112 and $5,193,199, respectively. Deferred Contract Costs Deferred contract costs include costs incurred to develop computer-based tests under contractual arrangements with customers. Under these arrangements, the Company incurs certain costs related to the development of new computer-based tests on behalf of the customer in return for the right to deliver the computer-based tests and collect a testing fee from either the candidate or the sponsoring organization. These costs are capitalized and amortized over the shorter of the estimated utility period of the test or the contractual period for delivery of the test. Deferred contract costs also include payments and accruals of approximately $10,400,000 in 1996 made to non-affiliated computer-based testing centers that have entered into three-year contracts with Sylvan to deliver information technology computer-based certification tests. In accordance with the terms of these contracts, the independent testing centers have received an advance payment and will receive no additional fees upon delivery of the computer-based certification tests. These costs are being amortized over the contractual term of three years. Revenue Recognition Franchise sales fees relate to single-center and area franchise sales. Revenue related to these sales is recognized when all material services or conditions relating to the sales have been substantially performed or satisfied by the Company. For single-center franchise sales, the criteria for substantial performance include: (1) receipt of an executed franchise license agreement, (2) receipt of full payment of the franchise fee, (3) completion of requisite training by the franchisee or center director, and (4) completion of site selection assistance and site approval. Area franchise sales generally transfer to the licensee the right to develop and operate centers in a specified territory, primarily in a foreign country, and the Company's future obligations are insignificant. Area franchise fees are recognized upon the signing of the license agreement and the determination that (1) all material services or conditions relating to the sale have been satisfied and the fee is non-refundable, (2) a minimum payment of 50% of the fee is required within 90 days of the date of the agreement, and (3) the Company has the ability to estimate the collectibility of any unpaid amounts. Franchise sales 38 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 2. Accounting Policies (continued) fees not meeting the recognition criteria are recorded as deferred revenue if not refundable, or deposits from franchisees if refundable. Commissions paid on sales of franchises are recorded as a current asset until the corresponding revenue is recognized. Fixed price contracts with school districts receiving funds under the federal Title I program and state-based programs are accounted for using the percentage-of-completion method. Income is recognized based on the percentage of contract completion determined by the total expenses incurred to date as a percentage of total estimated expenses at the completion of the contract. Total contract income is estimated as contract revenue less total estimated costs considering the most recent cost information. Revenues from cost-plus-fee contracts are recognized on the basis of costs incurred during the period plus the fee earned. Franchise royalties are reported as revenue as the royalties are earned and become receivable, unless collection is not assured or the royalties are 90 days or more in arrears. Revenue from the sale of products to franchisees is recognized when shipped. Testing revenues are recognized upon the completion of tests. Stock Options Granted to Employees The Company records compensation expense for all stock-based compensation plans using the intrinsic value method prescribed by APB Opinion No. 25, Accounting for Stock Issued to Employees. In October 1995 the Financial Accounting Standards Board issued FASB Statement No. 123, Accounting for Stock-Based Compensation, which encourages companies to recognize expense for stock-based awards based on their estimated value on the date of grant. Statement No. 123, effective for 1996, does not require companies to change their existing accounting for stock-based awards, but if the new fair value method is not adopted, pro forma income and earnings per share data should be provided in the notes to the financial statements. The Company has disclosed in Note 13, the required pro forma information as if the fair value method had been adopted. Foreign Currency Translation The financial statements of certain foreign subsidiaries that are measured in local functional currencies have been translated into U.S. dollars in accordance with FASB Statement No. 52, Foreign Currency Translation. All balance sheet accounts have been translated using the rates of exchange at the balance sheet date. Results of operations have been translated using the average rates prevailing throughout the year. Translation gains or losses resulting from the changes in exchange rates from year to year, are accumulated as a separate component of stockholders' equity. 39 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 2. Accounting Policies (continued) The financial statements of other foreign subsidiaries, primarily those subsidiaries providing services overseas to Educational Testing Services (see Note 17), prepare financial statements using the U.S. dollar as the functional currency. The transactions of these subsidiaries that are denominated in foreign currencies have been remeasured in U.S. dollars. Any resulting gain or loss is recorded as an adjustment of the amount due from ETS as the contract with ETS requires ETS to bear the risk of realized translation gains or losses. Reclassifications and Stock Split Certain amounts in the 1995 and 1994 consolidated financial statements have been reclassified to conform with the 1996 presentation. In October 1996, the Company declared a 3-for-2 stock split of its common stock for stockholders of record on November 7, 1996. Accordingly, all share and per share data including stock option, warrant and earnings per share information have been restated in the consolidated financial statements to retroactively reflect the stock split. 3. Acquisitions Wall Street Institute International, B.V. and Affiliates Effective December 1, 1996, the Company acquired substantially all of the operating net assets of Wall Street Institute International, B.V. and its commonly controlled affiliates (collectively, "WSI"). The Company and the sellers signed a definitive purchase agreement in December 1996 that provided for an effective date of the sale of December 1, 1996. The Company's control of the operations of WSI commenced at the effective date, and the Company recorded the acquisition using the purchase method of accounting on December 1, 1996. WSI is a European-based franchisor and operator of learning centers that teach the English language through a combination of computer-based and live instruction. WSI has a network of more than 170 franchised centers in operation throughout Europe and Latin America. The purchase price of WSI consisted of cash of $4,921,000, 505,364 shares of restricted common stock valued at $9,250,000, and 209,520 shares of unrestricted common stock valued at $5,900,000. The restricted stock may not be transferred by the sellers for a period of three years, unless the Company, in its sole discretion, removes the restriction. The Company must use its best efforts to register the 209,520 shares of unrestricted common stock by April 28, 1997. In the event that the Company is unable to register the common stock by April 28, 1997, the sellers are entitled to interest calculated at an increasing rate (10% to 15%) on the initial value of the common stock until such 40 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 3. Acquisitions (continued) time as the unrestricted common stock is registered. If the unrestricted common stock is unregistered at any time during the period from October 28, 1997 through November 12, 1997, the sellers at their option may require the Company to repurchase the unrestricted common stock for $5,900,000, plus any unpaid interest. Of the 505,364 shares of restricted common stock issued to the sellers, 124,292 shares are held in escrow to indemnify the Company against any subsequent losses resulting from any misrepresentation or breach of certain covenants. The unrestricted common stock held in escrow will be released in varying amounts to the sellers through 2001. In connection with the acquisition of WSI, the Company in January 1997 loaned the principal stockholder of the seller $2,500,000. The loan is due in lump sum in January 2000, and bears interest payable quarterly at the rate of prime plus one percent. The loan is secured by restricted common stock of the Company with a value of $2,500,000, adjusted annually for changes in the market price of the Company's common stock. The Company on the closing date of the acquisition entered into option agreements to purchase two franchisees of WSI, and granted the owners of these same franchisees put rights that require, in certain circumstances and at the election by the right holders, the Company to purchase the franchisees. At the Company's option it may purchase the two franchisees at any time during the period from September 1, 2001 through September 1, 2005 for an amount equal to seven times the previous fiscal years' earnings before interest and taxes, adjusted for certain defined items. The franchisees may require the Company to purchase substantially all of their net assets during the same four-year period if defined levels of operating results are met or exceeded at the end of the most recently completed fiscal year. The purchase price is payable 10% in cash and 90% in common stock, or at the Company's option, entirely in cash. The total purchase price of $21,071,000, including $1,000,000 of direct acquisition costs, was allocated as follows: Working capital $ 2,795,000 Fixed assets 1,125,000 Other assets 329,000 Goodwill 19,852,000 ----------- 24,101,000 Less liabilities assumed Debt 1,417,000 Deferred revenue 1,613,000 ----------- 3,030,000 ----------- $21,071,000 ===========
41 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 3. Acquisitions (continued) Goodwill is being amortized over its estimated useful life of 25 years. The cash portion of the purchase price was recorded as a current liability at December 31, 1996, and the portion of the purchase price represented by common stock has been recorded as a noncurrent liability at December 31, 1996. Upon closing of the transaction in January 1997, the Company paid the cash portion of the purchase price to the sellers of $4,921,000 and recorded the issuance of 714,884 shares of common stock to the sellers through a reduction in the noncurrent liability of $15,150,115. In December 1996, the Company recorded $172,000 of imputed interest expense related to the acquisition. The following unaudited pro forma summary presents the consolidated results of operations as if the WSI acquisition had occurred at the beginning of the respective periods presented, and does not purport to be indicative of what would have occurred had the acquisition been made at that date or of results which may occur in the future:
Year ended December 31, 1995 1996 ----------------------- (in thousands) Revenues $101,130 $169,778 Net income $5,563 $16,882 Net income per share - fully diluted $0.32 $0.67
The PACE Group Effective February 28, 1995, the Company purchased the assets and liabilities of The PACE Group ("PACE"), a provider of educational services to corporations. The initial consideration for the acquisition was 262,446 shares of common stock having an aggregate market value of $3,160,861. The acquisition was accounted for using the purchase method of accounting. Additional contingent consideration is payable in an amount equal to 6.5 times PACE's earnings before interest and income taxes (EBIT) in 1997, determined in accordance with generally accepted accounting principles. If EBIT is less than $2.7 million in 1997, the PACE shareholders may elect to have the payment calculation based on EBIT for either calendar year 1998 or 1999. The contingent payment is payable two-thirds in cash and one-third in shares of common stock, unless the PACE shareholders determine that a smaller cash payment is desired for their income tax purposes. The Company will record any additional consideration payable to the PACE shareholders as additional goodwill, and will amortize that amount over the remaining amortization period. At February 28, 1995, goodwill of approximately $3.5 million was recorded and is being amortized over a period of 25 years. 42 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 3. Acquisitions (continued) Results of operations of PACE are included in the accompanying consolidated statements of operations from March 1, 1995. For the year ended December 31, 1996, PACE EBIT was approximately $1.2 million (unaudited). Drake Prometric, L.P. Effective September 30, 1995, the Company acquired Drake Prometric, L.P. ("Drake"), a Minneapolis based provider of computer-based certification, licensure and assessment testing programs. As of that date, Drake had a network of 820 testing centers on six continents, 472 of which were located in North America and the remainder in 69 foreign countries. The Company acquired Drake for an initial purchase price of $20.0 million in cash and 5,714,286 restricted shares of common stock (the "Initial Shares"). Of the Initial Shares, 1,785,714 shares (the "Revenue Escrow Shares") were placed in escrow and will be released to the sellers to the extent that certain revenue targets relating to portions of the combined computer-based testing business are achieved from 1996 through 1998. The sellers may receive up to an additional $40.0 million (payable 12.5% in cash and the balance in either cash or restricted shares of common stock, at the Company's option) to the extent other revenue targets relating to portions of the combined computer-based testing business are achieved in 1998 or 1999 (with the measuring year selected by the sellers). The acquisition was accounted for using the purchase method of accounting. The initial purchase price consisted of the following components, totaling $70.6 million. Cash, net of $1,125,000 of imputed interest .................. $18,875,000 Initial Shares, excluding contingently issuable Revenue Escrow Shares (3,928,572 shares), with an estimated fair market value of $12.60 per share ....................................... 49,500,000 Acquisition costs ............................................ 1,847,227 Accrued Drake reorganization costs ........................... 422,954 ----------- $70,645,181 ===========
43 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 3. Acquisitions (continued) The purchase price includes 714,285 shares of common stock placed in escrow to indemnify the Company for potential undisclosed liabilities, as these shares are likely to ultimately be released from escrow. The Company also accrued $422,954 of costs related to estimated Drake employee termination costs resulting from the integration of the Drake business. The purchase price was adjusted for imputed interest between the effective date and December 13, 1995, the date the Drake acquisition was consummated. This amount, calculated using a rate of 8% per annum, was $1,125,000. Approximately $4.8 million of contract rights and $69.8 million of goodwill were recorded. The contract rights are being amortized over their respective terms, and no term exceeds five years. Goodwill is being amortized over 25 years, its estimated useful life. The Company will record the contingent consideration consisting of the 1,785,714 Revenue Escrow Shares and the additional contingent payment of up to $40.0 million when the contingencies are resolved and the additional consideration is payable. Based on testing revenues earned by the Company in 1996, 20% of the Revenue Escrow Shares have been earned. These 357,143 Revenue Escrow Shares will be released to the sellers in April 1997. At December 31, 1996, an additional $8.1 million of goodwill which relates to the earned shares was recorded which will be amortized over the remaining life of 24 years. Remedial Education and Diagnostic Services, Inc. and READS, Inc. On February 17, 1995, the Company acquired by merger all of the outstanding stock of Remedial Education and Diagnostic Services, Inc. and READS, Inc. (collectively, "READS") in exchange for 525,108 shares of common stock. The acquisition was accounted for as a pooling of interests and accordingly, the Company's financial statements for periods prior to the merger have been restated to include the results of operations, financial position and cash flows of READS. READS is based in Philadelphia, Pennsylvania and provides remedial and education services, psychological, diagnostic and counseling services, career awareness training, and a variety of consulting services. Services are delivered under contracts with school districts, county-wide educational agencies and municipalities in the eastern United States. 44 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 4. Available-For-Sale Securities The following is a summary of available-for-sale securities (cost approximates fair value):
December 31, 1995 1996 ----------- ----------- Stock mutual fund $ -- $ 3,500,061 U.S. Treasury bills and notes 14,005,903 2,998,927 Municipal bonds 16,373,162 9,800,000 ----------- ----------- $30,379,065 $16,298,988 =========== ===========
The Company has not had any significant realized or unrealized gains or losses on its investments during the periods presented. As of December 31, 1996, the Company has approximately $6.5 million of investments that mature in 1997, $1.8 million of investments that mature in 2004 and $8.0 million of investments that mature in 2026. These investments are classified as current as the Company expects to sell them in 1997. 5. Acquisition of Contract Rights In August 1996 the Company acquired the right to provide computer-based tests on behalf of the National Association of Securities Dealers, Inc. ("the NASD") for a period of ten years. In addition, Sylvan assumed certain lease obligations of approximately 50 testing centers previously operated by the NASD, and acquired equipment and leasehold improvements related to these leased centers. Sylvan paid the NASD $5,146,000 to acquire these rights and fixed assets, of which $4,871,832 was recorded as contract rights and $242,841 was recorded as fixed assets. In addition, as contemplated by the terms of the contract, the Company will incur in the first six months of 1997 an additional $1,395,000 of costs related to the acquisition of the contract rights from the NASD. The total contract rights recorded of $6,266,832 are being amortized over the contract life of 10 years using the straight-line method. 45 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 6. Costs and Estimated Earnings on Uncompleted Contracts Costs and estimated earnings on uncompleted fixed-price contracts and cost-plus-fee contracts are as follows:
December 31, ----------------------------------------------------------------- 1995 1996 ------------------------------- ------------------------------ Fixed Price Cost-Plus-Fee Fixed Price Cost-Plus-Fee Contracts Contracts Contracts Contracts ------------ ------------ ------------ ------------ Cost incurred on uncompleted contracts $ 10,108,393 $ 5,199,044 $ 13,420,902 $ 6,749,577 Estimated earnings 2,592,135 519,265 4,788,132 916,168 ------------ ------------ ------------ ------------ 12,700,528 5,718,309 18,209,034 7,665,745 Less: Billings to date 11,966,610 3,062,906 17,507,158 4,331,725 ------------ ------------ ------------ ------------ $ 733,918 $ 2,655,403 $ 701,876 $ 3,334,020 ============ ============ ============ ============ Included in the accompanying consolidated balance sheets under the following captions: Cost and estimated earnings in excess of billings on uncompleted contracts $ 922,232 $ 2,106,326 $ 505,787 $ 3,059,414 Cost and estimated earnings in excess of billings on uncompleted contracts, less current portion 124,104 549,077 274,842 274,606 Billings in excess of costs and estimated earnings on uncompleted contracts (237,644) -- (65,465) -- Other long-term liabilities (74,774) -- (13,288) -- ------------ ------------ ------------ ------------ $ 733,918 $ 2,655,403 $ 701,876 $ 3,334,020 ============ ============ ============ ============
7. Investments Investments in Affiliates At December 31, 1995, the Company's investments in affiliates consists of (i) a 50% interest in Sylvan National Advertising Committee, Inc. ("SNAC") in the amount of $97,266, which is engaged in purchasing advertising and marketing services for Sylvan Learning Centers, and (ii) a 34% interest in ADEPT Merger, Inc. ("ADEPT") in the amount of $85,054, a corporate joint venture formed to develop a computer-based examination for safe automobile driver certifications. At December 31, 1996, the Company's investments in affiliates consists of a 50% interest in SNAC ($559,584), a 10% interest in Caliber Learning Network, Inc. ($2,850,964), a corporate joint venture formed to develop distance learning programs, and a 34% interest in ADEPT ($485,054). 46 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 7. Investments (continued) Consolidated retained earnings at December 31, 1996 includes $644,561 related to undistributed earnings of equity method investees. Other Investments Other investments consist of non-marketable investments in common and preferred stocks of private companies in which the Company does not exercise significant influence. These investments are carried at the lower of cost or estimated net realizable value. At December 31, 1996, other investments consist primarily of a $21.9 million non-voting convertible preferred stock investment in Jostens Learning Corporation, a company that develops educational software products. 8. Bank Lines of Credit The Company has entered into a loan agreement with a bank, (hereinafter, "the credit line") that provides an unsecured revolving line of credit. The credit line allows the Company to borrow a maximum of $15.0 million through the expiration date of May 31, 1998, at which time the total outstanding principal balance can be converted into a term loan, at the option of the Company. The term loan would be repaid over 24 months from the time of issuance. The credit line and the term loan both bear interest at a floating rate equal to the 30 day London Interbank Offered Rate ("LIBOR") plus 1.15% per annum (6.68% at December 31, 1996). The balance on the credit line was $3.5 million at December 31, 1995 and no amounts were outstanding at December 31, 1996. 9. Long-Term Debt Long-term debt consists of the following:
December 31, 1995 1996 ----------------------- Note payable to a bank, bearing interest at 1.10% over the LIBOR (6.63% at December 31, 1996) The loan is payable in monthly installments of $80,000 plus interest through May, 1999 $3,280,000 $2,320,000 Other notes payable bearing interest at rates ranging from 8% to 14% 1,136,079 1,729,289 ---------- ---------- $4,416,079 $4,049,289 ========== ==========
47 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 9. Long-Term Debt (continued) Future maturities of long-term debt as of December 31, 1996 are as follows:
Years ending December 31: 1997 $2,474,607 1998 1,174,682 1999 400,000 ---------- $4,049,289 ==========
10. Leases Operating Leases The Company conducts all of its operations from leased facilities. These facilities include the Company's corporate headquarters and other office locations, warehouse space, certain testing sites, and Company-owned learning centers. The terms of these leases are five years or less, with the exception of the Company's corporate headquarters, which has a lease term of ten years, and generally contain renewal options. The Company also leases certain equipment under operating leases of 36 months or less. Future minimum lease payments at December 31, 1996, by year and in the aggregate, under all noncancellable operating leases are as follows:
Years ending December 31: 1997 $ 5,210,839 1998 4,405,175 1999 3,389,597 2000 2,779,558 2001 2,364,000 Thereafter 9,548,518 ----------- $27,697,687 ===========
Rent expense for cancelable and noncancellable leases was $5.7 million, $3.6 million and $2.3 million for the years ended December 31, 1996, 1995 and 1994, respectively. 48 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 11. Contingencies On November 18, 1996, ACT, Inc. filed suit against the Company alleging that the Company violated federal antitrust laws and committed various state law torts in connection with the operations of its computer-based testing operations and in obtaining a testing services contract from the NASD. The Company believes the grounds of the lawsuit are without merit and intends to defend the lawsuit vigorously. Management is unable to predict the ultimate outcome of the lawsuit, but believes that the ultimate resolution of the matter will not have a material effect on consolidated financial position. The Company is subject to other legal actions arising in the ordinary course of its business. In management's opinion, the Company has adequate legal defenses and/or insurance coverage with respect to the eventuality of such actions and does not believe any settlement would materially affect the Company's financial position. 12. Fair Value of Financial Instruments The fair value of the Company's financial instruments, which consist primarily of cash and cash equivalents, accounts and notes receivable, available-for-sale investments, accounts payable, and short and long-term debt, approximate their carrying amounts reported in the consolidated balance sheets. It was not practical to estimate the fair value of the Company's other investments because of the lack of quoted market prices of the underlying equity securities and the inability to determine fair value without incurring excessive costs. Management does not believe that the value of these investments have been impaired. 13. Stock Options and Warrants Stock Options Under a non-qualified stock option plan for key employees adopted by the stockholders, the Company has outstanding stock options at December 31, 1996 to purchase 300,509 shares of common stock for $2.54 per share and options to purchase 287,947 shares of common stock for $.63 per share. All outstanding options are fully vested and expire on December 31, 1997, and no additional options may be granted under this plan The Company also has an Employee Stock Option Plan ("the Employee Plan") which provides for the granting of stock options to purchase up to 3,200,000 shares of common stock. All options granted under the Employee Plan vest ratably over a five-year period and expire six years after date 49 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 13. Stock Options and Warrants (continued) of grant. At December 31, 1996, options to purchase 2,984,917 shares of common stock have been granted under the Employee Plan. Under a Management Stock Option Plan ("Management Plan"), the Company has outstanding stock options at December 31, 1996 to purchase 163,500 shares of common stock for $11.25 per share. All outstanding options are fully vested, and expire on December 1, 2001. No additional options may be granted under the Management Plan. In March 1996, the Company established the Senior Management Stock Option Plan ("the Senior Management Plan") to replace the Management Plan. The Senior Management Plan provides for the granting of stock options to purchase up to 2,250,000 shares of common stock. At December 31, 1996, options to purchase 1,035,000 shares of common stock have been granted under the Senior Management Plan. Options granted under this plan expire ten years after the date of grant. Of this amount, options for 165,000 shares became immediately vested, with the balance vesting ratably over three years. In October 1993 the stockholders approved the establishment of the Director Stock Option Plan ("Director Plan") for all non-employee members of the Board of Directors. Under the Director Plan, options to purchase 172,500 shares of common stock may be issued to certain members of the Board of Directors. No individual is eligible to receive more than 33,750 options under this plan and options granted under this plan expire at varying times three months after a director ceases his term on the Board. At December 31, 1996, options to purchase 168,750 shares of common stock have been granted under the Director Stock Option Plan. During 1995 the Board of Directors granted 37,500 options to the former shareholder of READS at an exercise price of $11.62 per share. These options vest ratably over a five-year period. In addition, an option to purchase an aggregate of 75,000 shares of common stock at an exercise price of $13.16 per share was granted in connection with the purchase of the rights to contracts to provide remedial education services to certain non-public schools under the federal Title I Program. All of these options are exercisable at December 31, 1996. In 1994 the Company sold 130,436 shares of restricted stock and options to purchase common stock to ETS for $1.5 million. During 1995, the Company received $2.0 million of cash as a result of the exercise by ETS of options to purchase 173,913 shares of common stock. Pursuant to the initial option agreement, upon exercise of the initial option, ETS was granted an additional one-year option to purchase 121,458 shares at an exercise price of $16.47 per share. This option was exercised on October 22, 1996. 50 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 13. Stock Options and Warrants (continued) The following table summarizes the stock option activity of the Company.
Weighted Options Options Average Outstanding Outstanding Exercisable Exercise Prices ----------- ----------- ----------- --------------- Balances at January 1, 1994 2,540,465 1,115,469 Granted 484,413 Became exercisable 515,159 Exercised (450,147) (450,147) --------- --------- Balance at December 31, 1994 2,574,731 1,180,481 Granted 919,083 Became exercisable 573,684 Exercised (258,663) (258,663) --------- --------- Balances at December 31, 1995 3,235,151 1,495,502 $ 7.69 Granted 1,847,875 $21.92 Became exercisable 765,823 Exercised (384,563) (384,563) $10.87 Forfeited (84,450) (84,450) $11.24 --------- --------- Balances at December 31, 1996 4,614,013 1,792,312 ========= ========= Weighted average exercise price at December 31, 1996 $13.06 $6.67 ========= =========
Exercise prices for options outstanding as of December 31, 1996 ranged from $0.63 to $26.67 consisting of the following ranges:
Weighted Weighted Range of Options Average Options Average Weighted Average Remaining Exercise Prices Outstanding Exercise Prices Exercisable Exercise Prices Contractual Life --------------- ----------- --------------- ----------- --------------- ---------------- $0.63-$2.54 588,456 $1.61 588,456 $ 1.61 1.0 years $5.22-$9.12 1,416,550 $6.17 786,745 $ 6.11 3.2 years $10.17-$17.00 764,882 $13.23 252,111 $11.31 4.6 years $17.00-$26.67 1,844,125 $21.92 165,000 $20.33 8.1 years
51 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 13. Stock Options and Warrants (continued) Options exercised and the range of related option prices follow:
Year ended Options exercised Exercise Prices Per Share ---------- ----------------- ------------------------- 1994 450,147 $0.63-$7.33 1995 258,663 $0.63-$11.50 1996 384,563 $0.63-$16.47
For the years ended December 31, 1995 and 1996, pro forma net income and earnings per share information required by Statement 123 has been determined as if the Company had accounted for its stock options using the fair value method. The fair value of these options was estimated at the date of grant using a Black-Scholes option pricing model with the following weighted average assumptions for 1995 and 1996 respectively: risk-free interest rate of 6.00% and 6.00%, dividend yield of 0% and 0%, volatility factors of the expected market price of the Company's common stock of .428 and .399, and an expected life of granted options which varies from zero to five years depending upon the vesting period. The weighted-average grant-date fair value of options granted during 1996 was $8.33. The Black-Scholes option valuation model was developed for use in estimating the fair value of traded options which have no vesting restrictions and are fully transferable. In addition, option valuation models require the input of highly subjective assumptions including the expected stock price volatility. Because the Company's stock options have characteristics significantly different from those of traded options and because changes in the subjective input assumptions can materially affect the fair value estimate, in management's opinion, the existing models do not necessarily provide a reliable single measure of the fair value of its stock options. For purposes of pro forma disclosures, the estimated fair value of the options is amortized to expense over the options' vesting periods. The Company's pro forma information follows:
1995 1996 ---------- ----------- Pro forma net income $2,651,259 $11,885,334 ========== =========== Pro forma earnings per share: Primary $0.17 $0.49 ===== ===== Fully diluted $0.16 $0.49 ===== =====
The effect of compensation expense from stock options on 1995 pro forma net income reflects only the vesting of 1995 awards. However, 1996 pro forma net income reflects the second year 52 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 13. Stock Options and Warrants (continued) of vesting of the 1995 awards and the first year of vesting of 1996 awards. Because the granted stock options vest over periods ranging from zero to five years, not until 2001 is the full effect of recognizing compensation expense for stock options representative of the possible effects on pro forma net income for future years. Stock Warrants In January 1993, the Company issued warrants to purchase 272,721 shares of Series A Convertible Preferred Stock for $4.39 per share, which approximated fair market value at the date of issuance. On December 9, 1993 in connection with the initial public offering, the warrants automatically converted into common stock warrants which allow holders to purchase 409,085 shares of common stock for $2.93 per share. During 1996 and 1995, warrants to purchase 134,499 and 235,497 shares were exercised, respectively. The remaining 39,089 warrants expire in September 1997. The Company also issued warrants to purchase 205,167 shares of common stock for $2.93 per share to the placement agent for the January 1993 preferred stock offering. Warrants to purchase 88,182 and 100,983 shares were exercised in 1996 and 1995, respectively. The remaining 16,002 warrants expire in January 1998. In July 1993 warrants to purchase 239,364 shares of common stock for $5.22 per share were issued in connection with a $5.0 million financing. Warrants to purchase 54,457, 136,728 and 4,788 shares of common stock were exercised in 1996, 1995 and 1994, respectively. The remaining 43,391 warrants expire in July 1998. 14. Impairment Loss In September 1995 the Company determined that certain assets of the testing services segment were impaired as a result of the acquisition of Drake. These assets, consisting of computer equipment, software and other assets, were impaired because of dissimilar technical requirements for Drake computer-based tests, or because their use was limited by virtue of the acquisition of similar productive assets from Drake. The amount of the impairment loss was determined by evaluating the likely sales proceeds from the disposition of the assets as compared to their book value. 53 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 15. Income Taxes Significant components of the provision for income taxes are as follows:
December 31, 1994 1995 1996 ---------------------------------------------- Current: Federal $ -- $ 250,334 $ 4,991,497 Foreign -- 133,887 372,996 State 76,249 212,251 1,379,593 ----------- ----------- ----------- Total current 76,249 596,472 6,744,086 Deferred(benefit): Federal -- (300,168) 1,773,051 State -- (87,145) 332,863 ----------- ----------- ----------- Total deferred -- (387,313) 2,105,914 ----------- ----------- ----------- $ 76,249 $ 209,159 $ 8,850,000 =========== =========== ===========
The Company uses the liability method to account for income taxes. Deferred income taxes reflect the net tax effects of temporary differences between the carrying amount of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company's deferred tax assets and liabilities are summarized as follows: 54 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 15. Income Taxes (continued)
December 31, 1995 1996 ----------- ----------- Deferred tax assets: Net operating loss carryforwards $ 3,288,617 $ 2,277,600 Loss on impairment of assets 302,729 71,601 Deferred revenue 427,574 443,618 Allowance for doubtful accounts 163,008 301,205 Amortization of intangible assets 361,537 459,040 Equity share of income from affiliates 19,499 53,841 Inventory reserve 53,050 60,094 Non-deductible reserves -- 75,920 Other 9,826 133,056 ----------- ----------- Total deferred tax assets 4,625,840 3,875,975 Deferred tax liabilities: Deferred contract costs -- 1,746,807 Contract rights 1,113,887 316,619 Depreciation 252,332 684,508 Amortization of software 202,157 175,183 Unbilled receivables 293,567 266,432 Prepaid expenses 86,080 106,586 Other 12,904 20,841 ----------- ----------- Total deferred tax liabilities 1,960,927 3,316,976 ----------- ----------- Net future income tax benefits 2,664,913 558,999 Valuation allowance for net deferred tax assets (2,277,600) (2,277,600) ----------- ----------- Net deferred tax assets (liabilities) $ 387,313 $(1,718,601) =========== ===========
The net operating loss carryforwards at December 31, 1996 are related to a subsidiary of the Company, and are available only to offset future taxable income of the subsidiary. These net operating loss carryforwards will begin to expire in 2007. The reconciliation of the reported income tax expense to the amount that would result by applying the U.S. federal statutory tax rates to income before income taxes is as follows: 55 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 15. Income Taxes (continued)
Year ended December 31, 1994 1995 1996 ----------------------------------------------------- Tax expense at U.S. statutory rate $ 1,151,000 $ 1,277,000 $ 8,022,000 Permanent differences -- 828,000 813,000 State income tax expense, net of federal tax effect 216,000 123,000 1,130,000 Reduction for income of pooled entities operating as S-corporations prior to date of merger (357,000) -- -- Tax effect of foreign income taxed at lower rate -- (87,000) (704,000) Change in valuation allowance affecting tax expense (912,000) (2,026,000) -- Available tax credits -- -- (254,000) Other (22,000) 94,000 (157,000) ----------- ----------- ----------- $ 76,000 $ 209,000 $ 8,850,000 =========== =========== ===========
Income before income taxes from foreign operations was $2.8 million in 1996 and $0.6 million in 1995. 16. Earnings Per Share Income per common and common equivalent share is based upon the average number of shares of common stock outstanding during each year, adjusted for the dilutive effect of common stock equivalents determined using the modified treasury stock method in 1994, and the treasury stock method in 1995 and 1996. Earnings per common share, assuming full dilution, is calculated on the same basis as the previously described primary computation, except that the computations assume that the end-of-year market price of the Company's common stock (rather than the average market price during the year) is used to determine the number of shares that would be assumed to be repurchased using the treasury stock method. As described more fully in Note 3, the Company may be required to issue additional shares of common stock in future years in connection with the acquisition of PACE. The 1995 and 1996 earnings per share calculations assume that 95,693 and 88,890 shares, respectively, are issuable upon the determination of the final purchase price. These respective amounts were calculated assuming that PACE were to achieve its respective current year operating results in the year of 56 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 16. Earnings Per Share (continued) determination. The calculation also assumes that net income is reduced by $171,000 and $630,000 as a result of the additional goodwill amortization that would have been recorded in 1995 and 1996, respectively, if the assumed contingent shares were issued on the date of acquisition. The Company may also be required to issue additional shares of common stock as a result of the Drake acquisition. The 357,143 Revenue Escrow shares to be released in April 1997 (as discussed in Note 3) are considered outstanding in 1996 for primary and fully diluted earnings per share. The remaining contingent shares are not considered in the computations since the effect on earnings per share is antidilutive in 1995 and 1996 if the conditions required for issuance of the contingent shares are assumed to have been met.
December 31, 1994 1995 1996 -------------------------------------------------- Per common and common equivalent share: Weighted average number of shares of common stock outstanding during the period 13,107,967 13,718,007 21,614,816 Dilutive effect of options and warrants 1,763,895 1,851,103 1,379,485 Common stock contingently issuable -- 95,693 446,033 ---------- ---------- ---------- Total common and common equivalent shares of stock considered outstanding during the year 14,871,862 15,664,803 23,440,334 ========== ========== ========== Per common share, assuming full dilution 15,119,015 15,971,819 23,582,023 ========== ========== ==========
17. Major Customers and Concentration of Credit Risk The Company has an agreement with Educational Testing Services ("ETS") to be the exclusive commercial provider of ETS computer-based tests through the year 2000. In addition, in 1994 the Company entered into a ten-year contract with ETS to provide computer-based tests internationally. The international testing contract with ETS stipulates that the Company will be compensated for its services for a fee equal to approved costs plus 10 percent, and the Company recognizes revenues accordingly. Operating costs under the contract will be paid at cost plus 10 percent on a quarterly basis by ETS. Start-up costs will be paid ratably over a period not to exceed 10 years. The Company incurs financing costs to fund the contract and ETS has agreed to reimburse these costs at the prime rate of interest. Total revenues from ETS represented approximately 12.5%, 20.5% and 21.8% of consolidated revenues for the years ended December 31, 1996, 1995 and 1994, respectively. 57 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 17. Major Customers and Concentration of Credit Risk (continued) The testing business acquired upon the acquisition of Drake in September 1995 is highly concentrated with two customers. These customers contributed approximately 23% and 28% to consolidated revenues during 1996 and the fourth quarter of 1995, respectively. The Company expects the contracts with these two customers to be renewed at the expiration date of the existing contracts. The failure of these contracts to be renewed under similar terms would have a detrimental effect on future operating results and significantly impair the Company's ability to recover the remaining goodwill balance of approximately $74.0 million related to the acquisition of Drake. Financial instruments which potentially subject the Company to credit risk are investments in available-for-sale securities, accounts receivable and notes receivable. The Company maintains an allowance for losses on receivables based on the collectibility of all amounts owed. The Company generally does not require collateral for trade receivables. Notes receivable are generally collateralized by assets of the debtors. At December 31, 1996, the Company does not have any significant concentrations of credit risk. 18. Defined Contribution Retirement Plan The Company sponsors a defined contribution retirement plan under section 401(k) of the Internal Revenue Code. The provisions of this plan allow for voluntary employee contributions, subject to certain annual limitations, and discretionary Company contributions which are allocated to eligible participants based upon compensation. All employees are eligible after meeting certain service requirements. The Company made no contributions to this plan in any of the periods presented. 19. Business and Geographic Segment Information The Company's operations are classified into three primary business segments: core educational services, contract educational services and testing services. The core educational services segment involves the design and delivery of personalized tutorial services to individuals through a network of franchised and Company-owned Sylvan Learning Centers. The contract educational services segment offers educational services under contract to public and private school districts receiving funding under the federal Title I and other education programs and provides contract educational and training services on-site to employees of large corporations. The testing services segment delivers computer-based tests both domestically and internationally. 58 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 19. Business and Geographic Segment Information (continued) Summarized financial information by business segment for the years ended December 31, 1994, 1995 and 1996 is as follows:
Year ended December 31, 1994 1995 1996 --------------------------------------------------------------- Operating revenue: Core educational services $ 20,015,534 $ 26,063,191 $ 36,799,287 Contract educational services 13,563,560 27,361,930 33,366,684 Testing services 13,664,969 34,565,697 85,281,600 Other -- -- 1,669,089 ------------- ------------- ------------- Total revenue $ 47,244,063 $ 87,990,818 $ 157,116,660 ============= ============= ============= Operating income (loss): Core educational services $ 4,849,654 $ 5,299,391 $ 8,064,192 Contract educational services 1,207,265 1,608,245 3,081,660 Testing services (2,970,976) (2,581,208) 10,237,792 Other -- -- 831,750 ------------- ------------- ------------- Total operating income $ 3,085,943 $ 4,326,428 $ 22,215,394 ============= ============= ============= Total assets: Core educational services $ 8,051,776 $ 12,863,792 $ 41,744,146 Contract educational services 5,585,433 17,904,803 18,485,036 Testing services 17,329,631 98,200,486 127,651,141 Other -- -- 26,345,435 Corporate 11,531,959 36,437,590 36,353,093 ------------- ------------- ------------- Total assets $ 42,498,799 $ 165,406,671 $ 250,578,851 ============= ============= ============= Depreciation and amortization: Core educational services $ 591,747 $ 895,430 $ 945,968 Contract educational services 419,624 823,742 1,082,981 Testing services 2,310,947 5,601,471 9,846,889 Other -- -- 64,673 Corporate 107,774 354,633 667,202 ------------- ------------- ------------- Total depreciation and amortization $ 3,430,092 $ 7,675,276 $ 12,607,713 ============= ============= ============= Capital expenditures: Core educational services $ 809,080 $ 331,022 $ 888,959 Contract educational services 909,900 2,338,719 2,381,177 Testing services 6,221,689 1,894,847 5,937,046 Other -- -- -- Corporate -- 237,690 4,064,567 ------------- ------------- ------------- Total capital expenditures $ 7,940,669 $ 4,802,278 $ 13,271,749 ============= ============= =============
There were no significant intersegment sales or transfers during the period. Operating income or loss by business segment excludes interest income and expense, earnings and losses on equity 59 Sylvan Learning Systems, Inc. and Subsidiaries Notes to Consolidated Financial Statements 19. Business and Geographic Segment Information (continued) investments, and investment and other income of $375,863 in 1994, ($569,440) in 1995 and $1,377,712 in 1996. Allocated corporate expenses are applied to each segment based on each segment's percentage of total revenues. Corporate assets consist principally of cash and cash equivalents, corporate property and equipment, and other assets. The Company reports information related to geographic locations based on the location of the regional service centers, which for the years ended December 31, 1995 and 1996 is as follows:
1995 1996 ------------ ------------ Operating revenue: North America $ 77,305,710 $128,093,523 Europe 7,980,827 18,804,612 Asia/Pacific Rim 2,704,281 10,218,525 ------------ ------------ Total revenue $ 87,990,818 $157,116,660 ============ ============ Operating income: North America $ 2,383,827 $ 11,122,080 Europe 1,205,230 8,232,240 Asia/Pacific Rim 737,371 2,861,074 ------------ ------------ Total operating income $ 4,326,428 $ 22,215,394 ============ ============ Identifiable assets: North America $155,784,373 $208,822,558 Europe 7,440,001 36,563,504 Asia/Pacific Rim 2,182,297 5,192,789 ------------ ------------ Total identifiable assets $165,406,671 $250,578,851 ============ ============
There were no reportable geographic segments meeting disclosure criteria for the year ended December 31, 1994. 20. Supplemental Cash Flow Information Interest payments were $0.4 million, $1.8 million and $0.5 million for the years ended December 31, 1996, 1995 and 1994, respectively. The 1995 amount includes imputed interest payments of $1.1 million related to the acquisition of Drake. Income tax payments were $4.0 million, $1.8 million and $57,000 for the years ended December 31, 1996, 1995, and 1994, respectively. 60 SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS SYLVAN LEARNING SYSTEMS, INC. AND SUBSIDIARIES
- ------------------------------------------------------------------------------------------------------------------------------------ COL. A COL. B COL. C COL. D COL. E - ------------------------------------------------------------------------------------------------------------------------------------ ADDITIONS ----------------------------------- BALANCE AT BALANCE AT DESCRIPTION BEGINNING OF CHARGED TO COSTS CHARGED TO OTHER DEDUCTIONS-DESCRIBE END OF PERIOD AND EXPENSES ACCOUNTS-DESCRIBE PERIOD - ------------------------------------------------------------------------------------------------------------------------------------ YEAR ENDED DECEMBER 31, 1996 DEDUCTED FROM ASSET ACCOUNTS: ALLOWANCE FOR DOUBTFUL ACCOUNTS $1,466,027 $ 280,444 $ 0 ($ 367,617)(1) $1,378,854 INVENTORY RESERVE $ 132,626 $ 70,000 $ 0 ($ 44,316)(2) $ 158,310 ---------- ---------- ---------- ---------- ---------- TOTALS $1,598,653 $ 350,444 $ 0 ($ 411,933) $1,537,164 ========== ========== ========== ========== ========== YEAR ENDED DECEMBER 31,1995 DEDUCTED FROM ASSET ACCOUNTS: ALLOWANCE FOR DOUBTFUL ACCOUNTS $ 490,226 $ 531,929 $ 950,000(3) ($ 506,128)(1) $1,466,027 INVENTORY RESERVE $ 228,415 $ 22,615 $ 0 ($ 118,404)(2) $ 132,626 ---------- ---------- ---------- ---------- ---------- TOTALS $ 718,641 $ 554,544 $ 950,000 ($ 624,532) $1,598,653 ========== ========== ========== ========== ========== YEAR ENDED DECEMBER 31,1994 DEDUCTED FROM ASSET ACCOUNTS: ALLOWANCE FOR DOUBTFUL ACCOUNTS $ 626,643 $ 158,621 ($ 295,038)(1) $ 490,226 INVENTORY RESERVE $ 486,471 $ 20,330 ($ 278,386)(2) $ 228,415 ---------- ---------- ---------- ---------- TOTALS $1,113,114 $ 178,951 ($ 573,424) $ 718,641 ========== ========== ========== ==========
(1) REDUCTION OF RESERVE DUE TO ACTUAL ACCOUNTS RECEIVABLE WRITE OFFS. (2) REDUCTION OF RESERVE DUE TO SALES OF RESERVED INVENTORY AND CHANGES IN ESTIMATES. (3) REPRESENTS THE RESERVE BALANCE ACQUIRED BY THE PURCHASE OF PACE AND DRAKE DURING 1995 AS FOLLOWS: PACE $200,000 DRAKE $750,000 61 EXHIBIT INDEX
Exhibit Number Description Page No. - ------ ----------- -------- 3.03 Amended and Restated Bylaws dated September 27, 1996 ___ 10.24 Lease Agreement dated August 24, 1995, First Amendment dated May 13, 1996 and Second Amendment dated November 11, 1996 by and between Registrant and Harbor East, LLC. ___ 10.25 Revolving Credit Note to NationsBank, N.A. dated December 31, 1996. ___ 10.26 Senior Management Option Plan dated March 29, 1996 ___ 11.00 Statement re: Computation of Per Share Earnings ___ 21.00 Subsidiaries of the Registrant. ___ 23.01 Consent of Ernst & Young LLP ___
62 EX-3.3 2 AMENDED RESTATED BYLAWS SYLVAN LEARNING SYSTEMS, INC. Amended and Restated BYLAWS Reflecting All Amendments Duly Adopted Through September 27, 1996 ARTICLE I OFFICES Section 1. Principal Office. The principal office of the Corporation in the State of Maryland shall be located at 1000 Lancaster Street, Baltimore, Maryland 21202, or at any other place or places as the Board of Directors may designate. Section 2. Additional Offices. The Corporation may have offices at such other places as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Place. All meetings of stockholders shall be held at the principal office of the Corporation or at such other place within the United States as shall be stated in the notice of the meeting. Section 2. Annual Meeting. An annual meeting of the stockholders for the election of directors and the transaction of any business within the powers of the Corporation shall be held during the month of May in each year on a date and at the time set by the Board of Directors, beginning with the year 1990. Section 3. Special Meetings. The president, chief executive officer or Board of Directors may call special meetings of the stockholders. Special meetings of stockholders shall also be called by the secretary upon the written request of the stockholders entitled to cast at least fifty percent (50%) of all votes entitled to be cast at the meeting. Such request shall state the purpose of such meeting and the matters proposed to be acted on at such meeting. The secretary shall inform such stockholders of the reasonably estimated cost of preparing and mailing such notice of the meeting Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 1 of 13 and, upon payment to the Corporation of such costs, the secretary shall give notice to each stockholder entitled to notice of the meeting. The Board of Directors, the President, chief executive officer or secretary shall fix a record date for such special meetings of the stockholders, which date shall be at least ten (10) days, but not more than ninety (90) days, before the date of the meeting. Section 4. Notice. Not less than ten (10) nor more than ninety (90) days before each meeting of stockholders, the secretary shall give to each stockholder entitled to vote at such meeting and to each stockholder not entitled to vote who is entitled to notice of the meeting, written or printed notice stating the time and place of the meeting and, in the case of a special meeting or as otherwise may be required by statute, the purpose for which the meeting is called, either by mail or by presenting it to such stockholder personally or by leaving it at his residence or usual place of business. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the stockholder at his post office address as it appears on the records of the Corporation, with postage thereon prepaid. Section 5. Scope of Notice. No business shall be transacted at a special meeting of stockholders except that specifically designated in the notice. Any business of the Corporation may be transacted at the annual meeting without being specifically designated in the notice, except such business as is required by statute to be stated in such notice. Section 6. Quorum. At any meeting of stockholders, the presence in person or by proxy of stockholders entitled to cast a majority of all votes entitled to be cast at the meeting shall constitute a quorum, but this section shall not affect any requirement under any statute or the charter for the vote necessary for the adoption of any measure. If, however, such quorum shall not be present at any meeting of the stockholders, the stockholders entitled to vote at such meeting, present in person or by proxy, shall have power to adjourn the meeting from time to time to a date not more than one hundred twenty (120) days after the original record date without notice other than announcement at the meeting until such quorum shall be present. At such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. Voting. For directors: Except as set forth in the charter, each share of stock may be voted for as many individuals as there are directors to be elected. Votes may only be cast "for" the election of a director. Cumulative voting shall not be allowed. At any election of directors or of a single director, as many individuals as there are directors to be elected and receiving the highest number of votes for election to the Board shall be considered duly elected. On other matters: A majority of the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to approve any other matter which may properly come before the meeting, unless more than a majority of the votes cast is required by statute or the charter. Unless otherwise provided in the charter, each outstanding share of stock shall be entitled to one vote for or against each matter submitted to a vote at a meeting of stockholders. Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 2 of 13 Section 8. Proxies. A stockholder may vote the shares of stock owned of record by him, either in person or by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. Section 9. Voting of Shares by Certain Holders. Shares registered in the name of another corporation, if entitled to be voted, may be voted by the president, a vice president or a proxy appointed by the president or a vice president of such other corporation, unless some other person who has been appointed to vote such shares pursuant to a bylaw or a resolution of the board of directors of such other corporation presents a certified copy of such bylaw or resolution, in which case such person may vote such shares. Any fiduciary may vote shares registered in his name as such fiduciary, either in person or by proxy. Shares of its own stock directly or indirectly owned by this Corporation shall not be voted at any meeting and shall not be counted in determining the total number of outstanding shares entitled to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding shares at any given time. The Board of Directors may adopt by resolution a procedure by which a stockholder may certify in writing to the Corporation that any shares of stock registered in the name of the stockholder are held for the account of a specified person other than the stockholder. The resolution shall set forth the class of stockholders who may certify, the purpose for which the certification may be made, the form of certification and the information to be contained in it; if the certification is with respect to a record date or closing of the stock transfer books, the time after the record date or closing of the stock transfer books within which the certification must be received by the Corporation; and any other provisions with respect to the procedure which the Board of Directors considers necessary or desirable. On receipt of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the certification, the stockholder of record of the specified stock in place of the stockholder who makes the certification. Section 10. Inspectors. At any meeting of the stockholders, the chairman of the meeting may, or upon the request of any stockholder shall, appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and report the number of shares represented at the meeting based upon their determination of the validity and effect of proxies, count all votes, report the results and perform such other acts as are proper to conduct the election and voting with impartiality and fairness to all the stockholders. Each report of an inspector shall be in writing and signed by him or by a majority of them if there be more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof. Sylvan Learning Systems, Inc., Amended and Restated By Laws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 3 of 13 Section 11. Informal Action by Stockholders. Any action required or permitted to be taken at a meeting of stockholders may be taken without a meeting if a consent in writing, setting forth such action, is signed by each stockholder entitled to vote on the matter and any other stockholder entitled to notice of a meeting of stockholders (but not to vote thereat) has waived in writing any right to dissent from such action, and such consent and waiver are filed with the minutes of proceedings of the stockholders. Section 12. Voting by Ballot. Voting on any question or in any election may be viva voce unless the presiding officer shall order or any stockholder shall demand that voting be by ballot. ARTICLE III DIRECTORS Section 1. General Powers. The business and affairs of the Corporation shall be managed under the direction of its Board of Directors. Section 2. Number, Tenure and Qualifications. The number of directors of the Corporation shall be nine. The Board of Directors shall be divided into three classes, each consisting of three persons, with each class of directors serving a staggered term of one, two or three years commencing with the initial classification of the Board. At each annual election after such classification, the number of directors for the class whose term expires on the day of such election shall be elected for a term ending on the third annual meeting of stockholders after their election and until their successors are elected and qualified. Section 3. Annual and Regular Meetings. An annual meeting of the Board of Directors shall be held immediately after and at the same place as the annual meeting of stockholders, no notice other than this bylaw being necessary. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Maryland, for the holding of regular meetings of the Board of Directors without other notice than such resolution. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman or at the request of the president, the chief executive officer, or by a majority of the Directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of Maryland, as the place for holding any special meeting of the Board of Directors called by them. Section 5. Notice. Notice of any special meeting shall be given by written notice delivered personally, telegraphed, telecopied or mailed to each director at his business or residence address. Personally delivered, telecopied or telegram notices shall be given at least twenty-four (24) hours prior to the meeting. Notice by mail shall be given at least five (5) days prior to the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail properly addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 4 of 13 to be given when the telegram is delivered to the telegraph company. If notice be given by telecopy, such notice shall be deemed to be given upon confirmation of transmission. Neither the business to be transacted at, nor the purpose of any annual, regular or special meeting of the Board of Directors need be specified in the notice, unless specifically required by statute or these Bylaws. Section 6. Quorum. A majority of the whole number of directors shall constitute a quorum for transaction of business at any meeting of the Board of Directors, provided that, if less than a quorum of directors is present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. The directors present at a meeting which has been duly called and convened may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum. Section 7. Voting. The action of the majority of the directors authorized to vote shall be the action of the Board of Directors, unless the concurrence of a greater proportion is required for such action by applicable statute or by the charter. Section 8. Telephone Meetings. Members of the Board of Directors may participate in a meeting by means of a conference telephone or similar communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting. Section 9. Informal Action by Directors. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting, if a consent in writing to such action is signed by each director and such written consent is filed with the minutes of proceedings of the Board of Directors. Section 10. Filling Vacancies by Directors. Any vacancy on the Board of Directors, other than a vacancy caused by an expansion in the number of directors, may be filled by vote of a majority of the remaining directors then in office, though less than a quorum, or by a sole remaining director. Regardless of the term remaining for the class of directors in which the vacancy arose, every director elected by the Board of Directors to fill a vacancy shall serve until the next annual meeting of stockholders and until his successor is elected and qualifies. Section 11. Filling Vacancies by Stockholders. Any vacancy caused by an increase in the number of directors shall be filled by the shareholders at an annual meeting or at a special meeting called for that purpose. The shareholders may also elect a director at any time to fill any vacancy not filled by the directors. If the Board of Directors accepts the resignation of a director tendered to take effect at a future time, the Board or the shareholders may elect a successor to take office when the resignation becomes effective. Section 12. Compensation. Directors may receive compensation for their services as directors and may be reimbursed for expenses of attendance, if any, at each annual, regular or special Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 5 of 13 meeting of the Board of Directors or of any committee thereof; nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 13. Removal of Directors. The stockholders may, at any time, remove any director for cause, by the affirmative vote of the holders of a majority of the shares entitled to vote for the election of directors. ARTICLE IV COMMITTEES Section 1. Number. Tenure and Qualifications. The Board of Directors may appoint from among its members an Executive Committee and other committees, composed of one or more directors, to serve at the pleasure of the Board of Directors. Section 2. Powers. The Board of Directors may delegate to committees appointed under Section 1 of this Article any of the powers of the Board of Directors, except as prohibited by law. Section 3. Meetings. In the absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a quorum, may appoint a director to act in the place of such absent member. Section 4. Telephone Meetings. Members of a committee of the Board of Directors may participate in a meeting by means of a conference telephone or similar communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting. Section 5. Informal Action by Committees. Any action required or permitted to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting, if a consent in writing to such action is signed by each member of the committee and such written consent if filed with the minutes of proceedings of such committee. ARTICLE V OFFICERS Section 1. General Provisions. The officers of the Corporation shall be a chairman of the board, vice chairman of the board, president, one or more vice presidents (if so elected by the Board of Directors), a secretary, and treasurer and such other officers as the Board of Directors from time to time may consider necessary for the proper conduct of the business of the Corporation. The officers of the Corporation shall be elected annually by the Board of Directors at the first meeting Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 6 of 13 of the Board of Directors held after each annual meeting of stockholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Each officer shall hold office until his successor is elected and qualifies or until his death, resignation or removal in the manner hereinafter provided. Any two or more offices except president and vice president may be held by the same person. In its discretion, the Board of Directors may leave unfilled any office except that of president, treasurer and secretary. Election or appointment of an officer or agent shall not of itself create contract rights between the Corporation and such officer or agent. Section 2. Removal. Any officer or agent of the Corporation may be removed by the Board of Directors if in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Section 3. Vacancies. A vacancy in any office may be filled by the Board of Directors for the balance of the term. Section 4. Chief Executive Officer. The Board of Directors may elect a chief executive officer. The chief executive officer shall have the responsibility for implementation of the policies of the Corporation, as determined by the Board of directors, and for the administration of the business affairs of the Corporation. Section 5. Chief Operating Officer. The Board of Directors may elect a chief operating officer. Said officer will have the responsibility and duties as set forth by the Board of Directors or the chief executive officer. Section 6. Chairman and Vice Chairman of the Board. The chairman of the board shall preside over the meetings of the Board of Directors and of the stockholders at which he shall be present. In the absence of the chairman of the board, the vice chairman of the board shall preside at such meetings at which he shall be present. The chairman of the board and the vice chairman of the board shall, respectively, perform such other duties as may be assigned to him or them by the Board of Directors. Section 7. President. The president shall in general supervise and control all of the business and affairs of the Corporation. Unless the president is not a member of the Board of Directors, in the absence of both the chairman and vice chairman of the board, he shall preside at all meetings of the Board of Directors and of the stockholders at which he shall be present. In the absence of a designation of a chief executive officer by the Board of Directors, the president shall be the chief executive officer and shall be ex officio a member of all committees that may, from time to time, be constituted by the Board of Directors. He may execute any deed, mortgage, bond, contract or other instrument which the Board of Directors has authorized to be executed, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time. Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting ale amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 7 of 13 Section 8. Vice Presidents. In the absence of the president or in the event of a vacancy in such office, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated at the time of their election or, in the absence of any designation, then in the order of their election) shall perform the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president; and shall perform such other duties as from time to time may be assigned to him by the president or by the Board of Directors. The Board of Directors may designate one or more vice presidents as executive vice president or as vice president for particular areas of responsibility. Section 9. Secretary. The secretary shall (a) keep the minutes of the proceedings of the stockholders, the Board of Directors and committees of the Board in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder; (e) have general charge of the stock transfer books of the Corporation; and (f) in general perform such other duties as from time to time may be assigned to him by the president or by the Board of Directors. Section 10. Treasurer. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositaries as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the president and Board of Directors, at the regular meetings of the Board or whenever they may require it, an account of all his transactions as treasurer and of the financial condition of the Corporation. If required by the Board of Directors, he shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. Section 11. Assistant Secretaries and Assistant Treasurers. The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or treasurer, respectively, or by the president or the Board of Directors. The assistant treasurers shall, if required by the Board of Directors, give bonds for the faithful performance of their duties in such sums and with such sureties as shall be satisfactory to the Board of Directors. Section 12. Annual Report. The president or other executive officer of the Corporation shall prepare or cause to be prepared annually a full and correct statement of the affairs of the Corporation, including a balance sheet and a statement of the results of operations for the preceding Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 8 of 13 fiscal year, which shall be submitted at the annual meeting of the stockholders and filed within twenty (20) days thereafter at the principal office of the Corporation in the State of Maryland. Section 13. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. ARTICLE VI CONTRACTS, LOANS CHECKS AND DEPOSITS Section 1. Contracts. The Board of Directors may authorize any officer or agent to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation and such authority may be general or confined to specific instances. Section 2. Checks and Drafts. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall from time to time be determined by the Board of Directors. Section 3. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board of Directors may designate. ARTICLE VII SHARES OF STOCK Section 1. Certificates of Stock. Each stockholder shall be entitled to a certificate or certificates which shall represent and certify the number of shares of each class of stock held by him in the Corporation. Each certificate shall be signed by the president or a vice president and countersigned by the secretary or an assistant secretary or the treasurer or an assistant treasurer and may be sealed with the corporate seal. The signatures may be either manual or facsimile. Certificates shall be consecutively numbered and if the Corporation shall, from time to time, issue several classes of stock, each class may have its own number series. A certificate is valid and may be issued whether or not an officer who signed it is still an officer when it is issued. Each certificate representing stock which is restricted as to its transferability or voting powers, which is preferred or limited as to its dividends or as to its share of the assets upon liquidation or which is redeemable at the option of the Corporation, shall have a statement of such restriction, limitation, preference or redemption provision, or a summary thereof, plainly stated on the certificate. In lieu of such Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 9 of 13 statement or summary, the Corporation may set forth upon the face or back of the certificate a statement that the Corporation will furnish to any stockholder. upon request and without charge, a full statement of such information, Section 2. Transfers of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Maryland or in Article II, Section 9 hereof. Section 3. Lost Certificate. The Board of Directors may direct a new certificate to be issued in place of any certificate previously issued by the Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or his legal representative to advertise the same in such manner as it shall require and/or to give bond, with sufficient surety, to the Corporation to indemnify it against any loss or claim which may arise as a result of the issuance of a new certificate. Section 4. Fixing of Record Date. Except in the case of special meetings of stockholders, in which event Article II, Section 3, shall control, the Board of Directors may set, in advance, a record date for the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders, or stockholders entitled to receive payment of any dividend or the allotment of any other rights, or in order to make a determination of stockholders for any other proper purpose. Such record date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than ninety (90) days, and in the case of an annual meeting of stockholders not less than ten (10) days, before the date on which the meeting or particular action requiring such determination of stockholders is to be held or taken. If no record date is fixed (a) the record date for the determination of stockholders entitled to notice of or to vote at an annual meeting of stockholders shall be at the close of business on the day on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the meeting; and (b) the record date for the determination of stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the Board of Directors, declaring the dividend or allotment of rights, is adopted. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 10 of 13 Section 5. Stock Ledger. The Corporation shall maintain at its principal office or at the office of its counsel, accountants or transfer agent, an original or duplicate stock ledger containing the name and address of each stockholder and the number of shares of stock of each class held by such stockholder. ARTICLE VIII FISCAL YEAR The Board of Directors shall have the power, from time to time, to fix the fiscal year of the Corporation by a duly adopted resolution. ARTICLE IX DIVIDENDS Section 1. Declaration. Dividends upon the shares of stock of the Corporation may be declared by the Board of Directors, subject to the provisions of law and the charter. Dividends may be paid in cash, property or shares of the Corporation, subject to the provisions of law and the charter. Section 2. Contingencies. Before payment of any dividends, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors may from time to time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends, for repairing or maintaining any property of the Corporation or for such other purpose as the Board of Directors shall determine to be in the best interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. ARTICLE X SEAL Section 1. Seal. The corporate seal shall be the word "SEAL" or have inscribed thereon the name of the Corporation, the year of its organization and the word "Maryland." The Board of Directors may authorize one or more duplicate seals and provide for the custody thereof. Section 2. Affixing Seal. Whenever the Corporation is required to place its corporate seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a corporate seal to place the word (SEAL) adjacent to the signature of the person authorized to execute the document on behalf of the Corporation. Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 11 of 13 ARTICLE XI INDEMNIFICATION Section 1. Definitions. As used in this Article XI, any word or words that are defined in Section 2-418 of the Corporations and Associations Article of the Annotated Code of Maryland (the "Indemnification Section"), as amended from time to time, shall have the same meaning as provided in the Indemnification Section. Section 2. Indemnification of Directors and Officers. The Corporation shall indemnify and advance expenses to a director or officer of the Corporation in connection with a proceeding to the fullest extent permitted by and in accordance with the Indemnification Section. Section 3. Indemnification of Other Agents and Employees. With respect to an employee or agent, other than a director or officer of the Corporation, the Corporation may, as determined by and in the discretion of the Board of Directors of the Corporation, indemnify and advance expenses to such employees or agents in connection with a proceeding to the extent permitted by and in accordance with the Indemnification Section. ARTICLE XII WAIVER OF NOTICE Whenever any notice is required to be given pursuant to the charter or bylaws of the Corporation or pursuant to applicable law, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at nor the purpose of any meeting need be set forth in the waiver of notice, unless specifically required by statute. The attendance of any person at any meeting shall constitute a waiver of notice of such meeting, except where such person attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. ARTICLE XIII AMENDMENT OF BYLAWS Section 1. By Directors. The Board of Directors shall have the power to adopt, alter or repeal any Bylaws of the Corporation or to make new Bylaws, without the approval or consent of the stockholders, but subject to the limitation that any modification to the By Laws made by the Directors shall be subject to repeal by the affirmative vote of the holders of a majority of the common stock then entitled to vote. Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 12 of 13 Section 2. By Stockholders. The stockholders shall have the power to adopt, alter or repeal any Bylaws of the Corporation and to make new Bylaws by the affirmative vote of the holders of a majority of the common stock then entitled to vote. ARTICLE XIV INTERESTED DIRECTORS AND OFFICERS Section 1. Contracts Valid. No contract or transaction between the Corporation and one or more of its Directors or officers or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its Directors or officers are Directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purposes, if: (a) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or (b) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or (c) The contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the shareholder. Section 2. Determining a Quorum . Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction [SEAL] SYLVAN LEARNING SYSTEMS, INC. CORPORATE 1989 SEAL MARYLAND O. Steven Jones ------------------------------------ O. Steven Jones, Assistant Secretary Sylvan Learning Systems, Inc., Amended and Restated Bylaws Reflecting all amendments adopted as of September 27, 1996 T:\DEPT\LEGAL\KDL\96BYLAWS.SKS Page 13 of 13 EX-10.24 3 LEASE AGREEMENT LEASE AGREEMENT between HARBOR EAST PARCEL G - OFFICE, LLC (as Landlord) and SYLVAN LEARNING SYSTEMS, INC. (as Tenant) Dated: August 24, 1995 Table of Contents Page ---- 1. Definitions ........................................................... 1 2. Completion of Leased Premises ......................................... 10 2A. Lease Commencement Date ............................................... 10 3. Rent and Additional Charges ........................................... 11 4. Common Areas .......................................................... 16 5. Services and Utilities ................................................ 16 6. Use of Leased Premises ................................................ 22 7. Care of Leased Premises and Building .................................. 25 8. Rules and Regulations ................................................. 27 9. Tenant's Alterations .................................................. 27 10. Name of Building; Tenant's Signs ...................................... 31 11. Tenant's Insurance .................................................... 32 12. Landlord's Insurance .................................................. 35 13. Damage by Fire or Other Casualty ...................................... 36 14. Condemnation .......................................................... 40 15. Assignment and Subletting ............................................. 41 16. Default Provisions .................................................... 43 17. Security Deposit ...................................................... 47 18. Bankruptcy Termination Provision ...................................... 48 19. Landlord May Perform Tenant's Obligations ............................. 49 20. Subordination ......................................................... 49 21. Attornment ............................................................ 51 22. Quiet Enjoyment ....................................................... 52 i 23. Right of Access to Leased Premises .................................... 52 24. Limitation on Landlord's Liability .................................... 53 25. Estoppel Certificates ................................................. 55 26. Surrender of Leased Premises .......................................... 55 27. Holding Over .......................................................... 55 28. Arbitration ........................................................... 56 29. Parking ............................................................... 56 30. Transfer of Landlord's Interest ....................................... 58 31. Leasing Commissions ................................................... 58 32. Recordation ........................................................... 59 33. Commercial Purposes ................................................... 59 34. General Provisions .................................................... 59 35. Options to Extend Term ................................................ 62 36. Expansion Options ..................................................... 66 37. Roof Options .......................................................... 67 38. Security Plan ......................................................... 67 39. Tenant's Allowance .................................................... 68 40. City Approvals ........................................................ 68 41. Tenant's Right to Terminate ........................................... 68 ii EXHIBITS A Floor Plan of Leased Premises B Construction Agreement C Cleaning Specifications D Rules and Regulations E Determination of Net Rentable Area F Description of Land G Security Plan H Signage I Area Plan J Commission Agreement iii LEASE AGREEMENT THIS LEASE AGREEMENT is made this __ day of August, 1995, between (i) HARBOR EAST PARCEL G - OFFICE, LLC, a Maryland limited liability company (hereinafter referred to as "Landlord"), and (ii) SYLVAN LEARNING SYSTEMS, INC. a Maryland corporation (hereinafter referred to as "Tenant"). WITNESSETH: Subject to the terms of this Lease, which, except for the payment of Rent and Additional Charges, shall be effective as of and from the date hereof, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Leased Premises, for the Term. 1. Definitions. (a) General Interpretive Principles. For purposes of this Lease, except as otherwise expressly provided or unless the context otherwise requires, (i) the terms defined in this Section have the meanings assigned to them in this Section and include the plural as well as the singular, and the use of any gender herein shall be deemed to include the other genders; (ii) accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; (iii) references herein to "Sections," "subsections," "paragraphs" and other subdivisions without reference to a document are to designated Sections, subsections, paragraphs and other subdivisions of this Lease; (iv) a reference to a subsection without further reference to a Section is a reference to such subsection as contained in the same Section in which the reference appears, and this rule shall also apply to paragraphs and other subdivisions; (v) the words "herein," "hereof," "hereunder" and other words of similar import refer to this Lease as a whole and not to any particular provision; and (vi) the word "including" means "including, but not limited to." (b) Definitions. As used in this Lease the following words and phrases shall have the meanings indicated: Additional Charges: All amounts (including the Parking Fees set forth in Section 29) payable by Tenant to Landlord under this Lease other than Basic Rent. All Additional Charges shall be deemed to be additional rent and all remedies applicable to the non-payment of Basic Rent shall be applicable thereto. Additional Insureds: Any Mortgagee of the Land or the Building, or both, and, if Landlord is a lessee of the Land or the Building, or both, the fee owner. Advance Rent: $45,833 representing the estimated Basic Rent for the first full month of the Term after the Lease Commencement Date, which Tenant shall pay to Landlord upon execution of this Lease and which Landlord shall credit against the corresponding monthly installment of Basic Rent. Affiliate: When used with respect to a Person, any corporation, partnership, joint venture, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of fifty (50%) or more of the equity interests). Alterations: Tenant Work and any alterations, installations, improvements, additions, renovations or physical changes to the Leased Premises (other than Tenant Work) made by or on behalf of Tenant or any Person claiming through or under Tenant before or after the Lease Commencement Date. Basic Rent: For each Lease Year, an amount equal to the product obtained by multiplying the Rentable Area by the Rent per Square Foot for such Lease Year. Building: The office building located on the Land, which has a mailing address of 1000 Lancaster Street, Baltimore, Maryland 21231. Building Rentable Area: The total net rentable area in the Building, as determined by Landlord's architect from the architectural plans for the Building, without field measurement, in accordance with the provisions of Exhibit E to this Lease is approximately 120,000 square feet. Business Days: All days except Saturdays after 1 p.m., Sundays and Legal Holidays. Common Areas: All areas, spaces and improvements within the Building and on the Land which are provided by Landlord, without a separate charge, for the non-exclusive convenience and use of the tenants of the Building and their agents, employees and invitees, including public elevators, lobbies, corridors, escalators, stairways and stairwells, public restrooms and comfort stations, truck loading areas and entrances and exits designated by Landlord for ingress and egress. Default Interest Rate: A fluctuating rate per annum equal to the lesser of (i) the sum of (x) the prime rate of NationsBank, N.A., said prime rate to change from time to time as and when the change is announced as being effective, and (y) three 2 percent (3%), or (ii) the maximum rate of interest chargeable under applicable law, if any, with respect to the applicable payment. Event of Default: As defined in Section 16(a) as an event of default. Floor: A floor of the Building located above the foundation slab or above a below-grade area which is designated as a cellar or a basement. The term "Floor" preceded by a number shall mean the indicated floor of the Building. Hazardous Substances: The term shall include (i) any "hazardous substances," "pollutants" or "Contaminants" as those terms are defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended: (ii) regulated substances and material described in the Resource Conservation and Recovery Act, as amended, other federal, state or local laws seeking to prevent pollution or contamination of land, air or water, and any regulations thereunder; (iii) any "hazardous substance" as defined by the laws of the State of Maryland, as amended; (iv) any oil, petroleum products or byproducts, as defined by the laws of the State of Maryland, as amended; (v) asbestos; (vi) polycholorinated biphensyls; and (vii) other materials defined or identified as dangerous, unsafe or hazardous (at or above statutory or regulatory levels), in any Legal Requirements governing the use, storage or disposition of such materials. Initial After-Hours HVAC Rate: $25 per hour per floor for the first Lease Year. Initial Calendar Year: The calendar year in which the Operating Expense Commencement Date occurs. Insurance Requirements: The usual and customary provisions and requirements of all policies of fire, property damage and liability insurance from time to time maintained by Landlord, and all rules and regulations promulgated by any Board of Fire Insurance Underwriters or fire insurance rating organization, applicable from time to time to the Building, the Land or the Parking Facilities. Land: The parcel of real property described in Exhibit F to this Lease. Landlord: The landlord named herein and any subsequent owner or lessee, from time to time, of Landlord's interest in the Land and/or the Building during the period of such owner's or lessee's ownership. 3 Landlord's Notice Address: 600 S. Bond Street, Baltimore, MD, 21231. Lease: This Lease Agreement, as amended from time to time, and all Exhibits, Riders and Addenda attached hereto. Lease Commencement Date: October 1, 1996, except as otherwise provided in Section 2A of this Lease. Lease Year: The period commencing on the Lease Commencement Date and ending on the last day of the month which completes 12 full calendar months after the Lease Commencement Date, and each 12 month period thereafter commencing on the first day after the end of the immediately preceding Lease Year, except that the last Lease Year shall end on the last day of the Term. Leased Premises: The area located on the 4th and 5th Floor of the Building, and designated as Suites 400 and 500. The Leased Premises are outlined on the floor plan attached as Exhibit A to this Lease consisting of the number of square feet determined by Landlord's architect consistent with Exhibit E. Leasehold Estate: Tenant's interest in the Leased Premises pursuant to this Lease. Leasing Broker: Miller Corporate Real Estate. Legal Holidays: New Years Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and Memorial Day. Legal Requirements: All laws, statutes, ordinances, orders, rules, regulations and requirements, including all mandatory energy conservation requirements applicable to the Building, of all federal, state and municipal governments, and the appropriate agencies, officers, departments, boards and commissions thereof, whether now or hereafter in force, applicable to the Land, the Building, the Parking Facilities and the Leased Premises, or any part thereof; all applicable local, State and Federal laws and regulations relating to the use on, storage in, and the removal from, the Land and/or the Building of hazardous or toxic material, petro-chemical products or asbestos or products containing asbestos; notices from a Mortgagee of the Building as to the manner of use or occupancy or the maintenance, repair or condition of the Leased Premises and/or the Building; and all covenants, conditions and restrictions of record affecting the use or occupancy of the Building. Minor Alterations: Alterations which do not affect the Common Areas, the structural elements of the Building, the exterior appearance of the Building, or the operating efficiency of the 4 Building, and which in the aggregate, do not exceed 820,000 per project in cost. constitute Minor Alterations. Mortgage: Any mortgage, deed of trust or other security instrument of record creating an interest in or affecting title to the Land or the Building, or both, or any part thereof, including a leasehold mortgage or subleasehold mortgage, and any and all renewals, modifications, consolidations or extensions of any such instrument; Mortgagee shall mean the holder or beneficiary of any Mortgage. Operating Expense Commencement Date: Lease Commencement Date. Operating Expenses: The aggregate of all reasonable and customary costs and expenses incurred on an accrual basis by Landlord in connection with the management, operation, maintenance, repair, cleaning, safety and administration of the Leased Premises, the Building and the Land, including employees' wages, salaries, welfare and pension benefits, other fringe benefits and payroll taxes for on-site employees; Real Estate Taxes; telephone service; painting of Common Areas; exterminating service; detection and security services; sewer rents and charges; premiums for fire and casualty, liability, workmen's compensation, sprinkler, water damage and other insurance; repairs and maintenance; building supplies; uniforms and dry cleaning; snow removal; the cost of obtaining and providing electricity, water and other public utilities; trash removal; janitorial and cleaning supplies; cleaning and janitorial services; landscaping maintenance; window cleaning; service contracts for the maintenance of elevators, boilers, HVAC and other mechanical, plumbing and electrical equipment; sales and use taxes payable in connection with tangible personal property and services purchased for the management, operation, maintenance, repair, cleaning, safety and administration of the Land and the Building; accounting fees relating to the determination of Operating Expenses and Operating Expense Increases and the preparation of statements required by tenants' leases; management fees, whether or not paid to any Person having an interest in or under common ownership with Landlord; fees paid in connection with the challenge of any proposed assessment which would result in an increase in the Real Estate Taxes, provided however, that Landlord shall only pursue such challenges if it reasonably expects the resulting savings to exceed the cost of such challenge; purchase and installation of indoor plants in the Common Areas; purchase and installation of additional landscaping not included in the original landscaping plan for the Building and replacement or substitute landscaping; and all other expenses now or hereafter reasonably and customarily incurred in connection with the operation, maintenance, and management of Peer Group Buildings. If Landlord makes an expenditure for a capital improvement to the 5 Land or the Building, whether by installing energy conservation or labor-saving devices to reduce Operating Expenses, to comply with Legal Requirements or otherwise, and if, under generally accepted accounting principles, such expenditure is not a current expense, then, except as otherwise provided in the next sentence, the cost thereof shall be amortized over a period equal to the useful life of such improvement, determined in accordance with generally accepted accounting principles, and the amortized cost allocated to each calendar year during the Term, together with an imputed interest amount calculated on the unamortized portion thereof using an interest rate equal to the prime rate of NationsBank, N.A. at the time of the expenditure, shall be treated as an Operating Expense. The cost of all repairs, replacements and improvements required to maintain the Building as a first-class office building, other than those related to structural or building systems or those excluded below, shall be treated as an Operating Expense even if the cost would otherwise be classified as a capital expenditure under generally accepted accounting principles. Refunds of Real Estate Taxes (reduced by Landlord's reasonable expenses in obtaining such refunds), amounts payable by tenants of the Building for after-hours heating or air- conditioning and for excess electrical usage, recoveries of expenses and other separate charges made to tenants of the Building for special services and (to the extent that Operating Expenses include the cost of any repair or reconstruction work) the amount of any insurance recoveries (net of the costs of collection), all determined on an accrual basis, shall be credited against Operating Expenses in computing the amount thereof. Operating Expenses shall not include financing or mortgage costs; depreciation expense: advertising for vacant space or building promotion; leasing commissions; executive salaries; the cost of tenant improvements; ground rent; or legal fees for leasing vacant space in the Building or enforcing Landlord's rights under leases with tenants for space in the Building. In addition, Operating Expenses shall not include the following: (i) fees for licenses and permits obtained by or for Landlord in connection with any non-office use activity by a tenant within the Building, such as retail or commercial uses; (ii) management fees paid to Affiliates of Landlord or other related Persons, provided however, that such fees can be included in Operating Expenses to the extent they are negotiated as arm's length arrangements; (iii) expenses not generally treated as operating expenses under generally accepted accounting principles except as specifically set forth above; (iv) any repairs or improvements made (A) by third parties to correct defects in prior construction, (B) to bring the 6 Building in compliance with Legal Requirements applicable prior to the Lease Rental Commencement Date or (C) to cure Landlord's default under the terms of this Lease or any other space lease with a tenant in the Building; (v) increases in salary and benefits to employees of Landlord which are in excess of the prevailing increases within downtown Baltimore: (vi) expenses properly treated as indirect corporate or office overhead for other sites under generally accepted principles of office building management; (vii) costs or renovating, decorating or improving space for tenants or other occupants of the building, or vacant space: (viii) expenses in connection with services provided to tenants which are not consistent with services provided to all other tenants; (ix) interest and penalties on taxes, utility bills and other costs due to Landlord's negligence; and (x) fees paid to Tenant or other tenants in the Building as reimbursement for audit expenses incurred due to errors by Landlord in the calculation of Operating Expenses; and (xi) costs incurred by Landlord in challenging the application of Legal Requirements, or fees and expenses incurred or payable as a result of such application provided, however, that such costs can be included as Operating Expenses if Landlord reasonably expects the resulting savings arising from such challenge to exceed the cost of the challenge. Operating Expenses are subject to adjustment as provided in Section 3(d). Parking Facilities: Any above grade parking structure and the surface parking areas on the Land or on other parcels located in the Inner Harbor East subdivision designated as available for Tenant's use during the term of this Lease in accordance with Section 29 of this Lease. Peer Group Buildings: First-class, Class A office buildings in downtown Baltimore of comparable age, quality and location. Person: A natural person, a partnership, a corporation and any other form of business or legal association or entity. 7 Real Estate Taxes: All taxes, assessments, vault rentals, and other charges, if any, general, special or otherwise, including all assessments for schools, public betterments and general or local improvements, levied or assessed upon or with respect to the ownership of and/or all other taxable interests in the Building and the Land imposed by any public or quasi-public authority having jurisdiction and personal property taxes levied or assessed on Landlord's personal property used in connection with the management, operation, maintenance, repair, cleaning, safety and administration of the Land and the Building less all applicable credits. Except for taxes, fees, charges and impositions described in the next succeeding sentence, Real Estate Taxes shall not include any federal or state estate or inheritance taxes or taxes on income. If at any time during the Term the methods of taxation shall be altered so that in addition to or in lieu of or as a substitute for the whole or any part of any Real Estate Taxes levied, assessed or imposed there shall be levied, assessed or imposed (i) a tax, license fee, excise or other charge on the rents received by Landlord, or (ii) any other type of tax or other imposition in lieu of, or as a substitute for, or in addition to, the whole or any portion of any Real Estate Taxes, then the same shall be included as Real Estate Taxes. A tax bill or true copy thereof, together with any explanatory or detailed statement of the area or property covered thereby, submitted by Landlord to Tenant shall be conclusive evidence of the amount of taxes assessed or levied, as well as of the items taxed. If any real property tax or assessment levied against the land, buildings or improvements covered thereby or the rents reserved therefrom shall be evidenced by improvement or other bonds, or in other form, which may be paid in annual installments only the amount paid or payable in any calendar year, including the interest, if any, thereon, shall be included as Real Estate Taxes for that calendar year. The Real Estate Taxes for the first Lease Year includible as Operating Expenses shall not exceed $.75 per square foot. Landlord shall make timely applications for, diligently pursue and use best efforts to keep in place all discounts applicable as a result of the Building being located in a State Enterprise Zone or Federal Empowerment Zone. Rent Per Square Foot: Eleven Dollars ($11.00) per square foot of Rentable Area during the first Lease Year. For each Lease Year (or part of a Lease Year) thereafter during the Term, the Rent per Square Foot shall be an amount equal to 102.15% of the Rent per Square Foot for the immediately preceding Lease Year. Rentable Area: The net rentable area of the Leased Premises, as determined by Landlord's architect from the approved permit sets of construction drawings for the Leased Premises, without field measurement, in accordance with the provisions of 8 Exhibit E to this Lease. Landlord's architect has initially estimated the Rentable Area to be approximately 50,000 square feet. Rules and Regulations: The rules and regulations attached as Exhibit D to this Lease as modified from time to time by Landlord pursuant to Section 8. Security Deposits: A sum equivalent to one (1) month's Basic Rent. Taking: A taking of property, or any interest therein or right appurtenant or accruing thereto, by condemnation or eminent domain or by action or proceedings, or agreement in lieu thereof, pursuant to governmental authority. Tenant: The tenant named herein, any Affiliate thereof and any permitted assignee under Section 15. Tenant's Associates: Tenant's subtenants, agents, employees, invitees, licensees, customers and clients, and guests or contractors of any of the foregoing. Tenant's Notice and Billing Address: Sylvan Learning Systems, Inc., 9135 Guilford Road, Columbia, MD 21046, (before the Lease Commencement Date), or the Premises (after the Lease Commencement Date). Tenant's Personal Property: All furniture, furnishings, business machines, equipment and other moveable property installed in the Leased Premises by, or at the expense of, Tenant and (i) not affixed to the Land or the Building; or (ii) affixed but removable without substantial damage (which damage can be and is repaired by Tenant). Tenant's Proportionate Share: The percentage (rounded off to two decimal points) from time to time which the Rentable Area is of the Building Rentable Area. Tenant's Space Layout: As defined in Section 4 of Exhibit B. Tenant's Work: As defined in Exhibit B. Term: The period commencing on the Lease Commencement Date and ending on the last day of the calendar month which completes ten (10) full years after the Lease Commencement Date, but in any event the Term shall end on any date when this Lease is sooner terminated. 9 Unavoidable Delays: Delays caused by strikes, acts of God, lockouts, labor difficulties, riots, explosions, sabotage, accidents, shortages or inability to obtain labor or materials, Legal Requirements, governmental restrictions, enemy action, civil commotion, fire or other casualty or similar causes beyond the reasonable control of Landlord, other than as to Landlord, delays caused by financial difficulties experienced by Landlord, whether in securing initial financing or otherwise. 2. Completion of Leased Premises. a. The completion of the Leased Premises shall be done in accordance with the provisions of Exhibit B to this Lease. b. Construction on the Building shall commence by September 30, 1995. c. The Base Building shall be built in accordance with plans and specifications prepared by Landlord's architect, a copy of which have been delivered to Tenant. Landlord agrees to provide to Tenant, upon request, copies of such plans and specifications as may be needed by Tenant to install improvements, make alterations or perform repairs which are Tenant's responsibility hereunder, or which Tenant may need to perform in the event of an emergency. 2A. Lease Commencement Date. Except as otherwise provided in Exhibit B, the Lease Commencement Date shall occur sixty (60) days after Landlord has delivered the-Leased Premises to Tenant in a Floor Ready Condition (the "Tenant Work Period") provided that the Date of Substantial Completion has occurred. If the Date of Substantial Completion has not occurred by the end of the Tenant Work Period, the Lease Commencement Date shall be the Date of Substantial Completion. Landlord and Tenant anticipate the following schedule: (i) the Leased Premises will be delivered to Tenant in a Floor Ready Condition on August 1, 1996; (ii) the Date of Substantial Completion will be September 1, 1996, and (iii) the Lease Commencement Date will be October 1, 1996. If the Date of Substantial Completion for the Base Building has not occurred by October 15, 1996, Landlord shall pay Tenant liquidated damages in the amount of $1,424.00 per day for each day of delay after October 15, 1996 not caused by Tenant's Delay (as defined in Exhibit B) until the Lease Commencement Date occurs. Within 10 days after the Lease Commencement Date has been determined, Tenant shall, at the request of Landlord, execute and deliver to Landlord a written instrument setting forth the precise dates of commencement and expiration of the Term and the Rentable Area, and certifying that Tenant is in possession of the Leased Premises and has no claims, defenses, offsets or counterclaims against Landlord, or specifying each such claim, defense, offset or counterclaim. 10 Notwithstanding the foregoing, Tenant may elect to use Landlord's Contractor to perform the Tenant Work. In such event, subject to: (i) Tenant complying with a reasonable schedule developed by Landlord for preparation and delivery of Tenant Work Construction Documents: (ii) Tenant's timely approval of costs for Tenant Work; and (iii) Unavoidable Delay, the Lease Commencement Date will be the date of substantial completion by Landlord's Contractor of Tenant Work (as determined by Tenant's architect and Landlord's architect) or the Date of Substantial Completion, whichever is later. 3. Rent and Additional Charges. (a) Payments of Rent and Additional Charges. Tenant shall pay the Basic Rent for each Lease Year in equal monthly installments in advance on the Lease Commencement Date and thereafter on the first day of each month (or part of a month) during the Term. If the Lease Commencement Date is not the first day of a month, Basic Rent for the month in which the Lease Commencement Date occurs shall be pro-rated on the basis of the number of days in the month before and after the Lease Commencement Date. Landlord acknowledges receipt of the Advance--Rent. The difference, if any, between the Advance Rent and the first monthly installment of Basic Rent shall be adjusted as of the Lease Commencement Date. The Basic Rent and all Additional Charges shall be paid promptly when due, in lawful money of the United States, without notice or demand and without deduction, diminution, abatement, counterclaim or setoff of any amount or for any reason whatsoever, except as otherwise expressly provided in subsection (b) and in Sections 13(b) and 14(a), to Landlord at Landlord's Notice Address or at such other address or to such other Person (including a successor to Landlord's interest in the Building) as Landlord may from time to time designate. If Tenant makes any payment to Landlord by check, such payment shall be by check of Tenant and Landlord shall not be required to accept the check of any other Person, and any check received by Landlord shall be deemed received subject to collection. If any check is mailed by Tenant, Tenant shall post such check in sufficient time prior to the date when payment is due so that such check will be received by Landlord on or before the date when payment is due. Tenant shall assume the risk of lateness or failure of delivery of the mails, and no lateness or failure of the mails will excuse Tenant from its obligation to make the payment in question when required under this Lease. If, during the Term, Landlord receives two or more checks from Tenant which are returned by Tenant's bank for insufficient funds or are otherwise returned unpaid, Tenant agrees that all checks thereafter shall be either bank, certified or cashiers' checks. All bank service charges resulting from any bad checks shall be borne by Tenant. The rent reserved under this Lease shall be the total of all Basic Rent and Additional Charges, increased and adjusted as elsewhere 11 herein provided, payable during the entire Term and, accordingly, the methods of payment provided for herein, namely, annual and monthly rental payments, are for convenience only and are made on account of the total rent reserved hereunder. (b) Payment of Operating Expenses. Tenant shall pay as additional rent Tenant's Proportionate Share of Operating Expenses for each calendar year, commencing with the Initial Calendar Year. (i) Landlord shall make a reasonable estimate of Tenant's Operating Expenses for each calendar year after the Initial Calendar Year (based on the projected Real Estate Taxes payable for the real estate tax fiscal years included in such calendar year, the other Operating Expenses for the preceding calendar year and anticipated increases in other Operating Expenses for the current calendar year). Tenant shall pay to Landlord a properly prorated share of the estimated amount of Tenant's Operating Expenses for each calendar year on the first day of each month in advance, beginning on the first day of the first calendar year after the Initial Calendar Year. (ii) If Landlord's estimate of Tenant's Operating Expenses for any calendar year is not received by Tenant on or before January 1 of the calendar year, Tenant shall continue to pay the monthly installments of Operating Expenses at the rate established for the immediately preceding calendar year until Tenant receives a new estimate for the calendar year. Within 15 days after receipt of a new estimate of Operating Expenses for the calendar year, Tenant shall pay to Landlord in a lump sum the arrearages in the monthly estimates for each month in the calendar year before receipt of the estimate, if any, and shall pay the remaining monthly installments for the calendar year on the first day of each month in advance during the balance of the calendar year. (iii) Within 120 days after the end of each calendar year, including the Initial Calendar Year, Landlord shall submit to Tenant a statement prepared by Landlord's independent certified public accountant (the "Annual Operating Expense Statement") setting forth in reasonable detail the Operating Expenses for such calendar year and the amount (if any) of Tenant's Proportionate Share of Operating Expenses for such calendar year. If Tenant's Proportionate Share of Operating Expenses so stated are more than the amount (if any) theretofore paid by Tenant for Operating Expenses based on Landlord's estimate for the calendar year, Tenant shall pay to Landlord the deficiency after the submission of the Annual Operating Expense Statement. Such payment shall be made with the next payment of Basic Rent due at least 20 days after receipt by Tenant of all such information. If Tenant's Proportionate Share of Operating Expenses so stated are less than 12 the amount (if any) theretofore paid by Tenant for Operating Expenses based on Landlord's estimate for the calendar year, Landlord shall credit the excess against the next monthly installment of Basic Rent thereafter payable by Tenant under this Lease, except that Landlord shall refund the excess (if any) for the calendar year within which the last Lease Year ends to Tenant within 15 days after submission of the Annual Operating Expense Statement for such calendar year. (iv) If the Lease Commencement Date shall not coincide with the beginning of a calendar year, the amount of Operating Expenses payable for the Initial Calendar Year shall be pro-rated on a daily basis between Landlord and Tenant based on the number of days in the Initial Calendar Year occurring on and after the Lease Commencement Date. If the last day of the Term shall not coincide with the end of a calendar year, the amount of Operating Expenses payable for the calendar year in which the last day of the Term occurs shall be pro-rated on a daily basis between Landlord and Tenant based on the number of days in which this Lease is in effect. Tenant's obligation under this subsection to pay Operating Expense Increases and Landlord's obligation to reimburse Tenant for an overpayment of Operating Expenses shall survive the expiration of the Term or the earlier termination of this Lease. (c) Tenant's Right to Audit the Annual Operating Expense Statement. Tenant shall have the right to audit the Annual Operating Expense Statement for any calendar year at any time within 90 days after Tenant receives such Annual Operating Expense Statement. The cost of any such audit shall be paid by Tenant, except that, if it is determined on the basis of such audit (or if, in accordance with the following provisions, it is otherwise ultimately determined) that the amount of Operating Expenses for any calendar year was overstated by more than seven percent (7%), then the cost of the audit shall be paid by Landlord. Landlord shall pay to Tenant any overpayment of Tenant's Proportionate Share of Operating Expense Increases for the calendar year in question within 30 days after the amount of the overpayment has been established by the audit or by arbitration as provided in this subsection. If Tenant fails to exercise its right of audit within the 90-day period, the amount of Tenant's Operating Expenses for the calendar year shall be conclusively established as the amount set forth in the Annual Operating Expense Statement for such calendar year delivered by Landlord to Tenant pursuant to subsection (b) as to all matters other than fraud. If, however, Tenant timely exercises its right of audit, the amount of Tenant's Operating Expenses for such calendar year shall be conclusively established as the amount determined as a result of such audit unless, within 90 days after receipt of a report of the same from the auditors selected by Tenant, Landlord, at its expense, shall contest the amount thereof, in which event the amount of Tenant's 13 Proportionate Share of Operating Expenses shall be conclusively established by an arbitration proceeding conducted pursuant to Section 28. (d) Gross Up of Operating Expenses. (i) If, during all or any part of a calendar year, any part of the Building Rentable Area is leased to a tenant (hereinafter referred to as a "Special Tenant") which, in accordance with the terms of its lease, provides its own cleaning and janitorial services, has separately metered electrical service or is not otherwise required to pay Operating Expenses on the basis of operating expenses for the Building which include substantially the same components as the Operating Expenses (as defined in Section 1(b), the Operating Expenses for such calendar year shall be increased by the additional costs for cleaning and janitorial service, electricity and the other expenses, as reasonably estimated by Landlord, that would have been incurred by Landlord if Landlord had furnished and paid for cleaning and janitorial services for the space occupied by the Special Tenant, the space occupied by the Special Tenant was not separately metered for electricity or Landlord had furnished and paid for any other service which the Special Tenant did not receive and which was not included in operating expenses as defined in the Special Tenant's lease. (ii) If the average occupancy level of the Building for any calendar year is less than 95%, the Operating Expenses for such calendar year shall be increased by the additional Operating Expenses, as reasonably estimated by Landlord, that would have been incurred by Landlord in providing the same services provided to Tenant (and included in Operating Expenses) if the average occupancy level of the Building for the calendar year had been 95%. For purposes of the preceding sentence, the "average occupancy level of the Building" for any calendar year shall be the arithmetic average of the Building Rentable Area occupied by tenants on the first day of each month during the calendar year. Notwithstanding the foregoing, as long as Tenant occupies at least its current share of space in the Building, Tenant shall not be responsible for more than eighty percent (80%) of all Operating Expenses. (e) Interest. If Tenant fails to make any payment of Basic Rent or Additional Charges within five days after the due date thereof, interest shall accrue on the unpaid portion thereof from the due date at the Default Interest Rate, and shall be payable on demand. (f) Accord and Satisfaction. No payment by Tenant or receipt by Landlord of any lesser amount than the amount stipulated to be 14 paid hereunder shall be deemed other than on account of the earliest stipulated Basic Rent or Additional Charges nor shall any endorsement or statement on any check or letter be deemed an accord and satisfaction, and Landlord may accept any check or payment without prejudice to Landlord's right to recover the balance due or to pursue any other remedy available to Landlord. (g) Late Payment Charge. If Tenant fails to pay any Basic Rent or Additional Charges within five days after the same become due and payable, Tenant shall also pay to Landlord on demand a late payment service charge (to cover Landlord's administrative and overhead expenses of processing late payments and not to be a penalty) equal to the greater of $100.00 or 5% of such unpaid sum for each and every calendar month or part thereof after the due date that such sum has not been paid to Landlord. Such payment shall not excuse the untimely payment of rent. (h) Adjustment of Basic Rent for Increases in Rent per Square Foot. Whenever there is a change in the Rent per Square Foot during a Lease Year pursuant to any of the provisions of this Lease, the Basic Rent for the Lease Year in which the change occurs shall be adjusted as of the date on which the change becomes effective so that the Basic Rent for the period before the change becomes effective shall be determined by the Rent per Square Foot in effect immediately before the change and the Basic Rent for the period after the change becomes effective shall be determined by the new Rent per Square Foot in effect immediately after the change. Tenant shall continue to pay the Basic Rent at the monthly amount in effect immediately before the change becomes effective until notified by Landlord of an increase in the Basic Rent resulting from the increase in the Rent per Square Foot. Within 15 days after receipt of a notice from Landlord of the increase in the Basic Rent resulting from the increase in the Rent per Square Foot, Tenant shall pay to Landlord, in a lump sum, an amount equal to the difference between (i) the Basic Rent, adjusted to reflect the increase in the Rent per Square Foot, for the period beginning on the date on which the increase in the Rent per Square Foot became effective and ending on the first day of the month in which Tenant receives Landlord's notice of the increase, and (ii) the Basic Rent previously paid by Tenant to Landlord for the same period. (i) No Setoff. Tenant shall not have the right to setoff or deduct any amount allegedly owed by Landlord to Tenant under this Lease from any of the Basic Rent or Additional Charges payable by Tenant under this Lease. Tenant's sole remedy with respect to any claim against Landlord shall be to commence an independent legal action against Landlord. 15 4. Common Areas. (a) Subject to the Rules and Regulations, for 24 hours of each day and throughout the Term, Tenant and Tenant's Associates shall have the non-exclusive right, in common with others, to use the Common Areas. Subject to subsection (b) below, Landlord shall have the right at any time, without Tenant's consent, (i) to change the arrangement or location of entrances, passageways, doors, doorways, corridors, stairs or other public portions of the Land, the Building and the Parking Facilities, provided any such change does not interfere with Tenant's access to the Leased Premises or the Parking Facilities; (ii) to grant to any Person an exclusive right to conduct a particular business or undertaking in the Building that is not inconsistent with Tenant's permitted use of the Leased Premises: (iii) to use and/or lease the roof of the Building and the Common Areas for any purposes not inconsistent with the terms of this Lease; (iv) to subdivide the Land or to combine the Land with other adjoining real property; and (v) to add additional floors to the Parking Facilities (other than to the Building), to erect additional buildings on the Land and to erect temporary scaffolds and other devices in connection with the construction, repair and maintenance of the Land or the Building, or both. Landlord's exercise of any of the foregoing rights shall not constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under this Lease, or impose any liability upon Landlord, by reason of inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's business, or otherwise. Landlord shall use reasonable efforts to mitigate such inconvenience or annoyance (but with no obligation to employ labor at overtime or other premium pay rates). (b) Notwithstanding subsection (a) above, no modifications shall be made to all or part of the Common Areas, if as a result thereof: (i) any part of the Building or the Leased Premises would be in violation of any Legal Requirement; (ii) the security plan for the Building, the Leased Premises or the Parking Facilities is compromised or diminished in effectiveness; (iii) any part of the Common Areas are used for retail or marketing purposes except for advertising the availability of space in the Building; or (iv) the appearance of the Building is inconsistent with first class, Class A office buildings in downtown Baltimore of comparable age, quality and location (the "Peer Group Buildings"). 5. Services and Utilities. (a) Building Services. Throughout the Term, Landlord agrees that the Building will be maintained in the same manner as other Peer Group Buildings, and that, subject to Unavoidable Delays and Legal Requirements, it will furnish, or cause to be furnished, all 16 necessary maintenance, repairs, utilities and services, including, without limitation, the initial capital improvements and equipment installations, as well as the subsequent maintenance, services and repairs as set forth below to the following services: (1) Subject to the provisions of subsections (b) and (c), normal and usual electricity for lighting purposes and the operation of ordinary office equipment consisting of an average of 5 watts per square foot of Rentable Area; (2) Adequate supplies for toilet rooms located in the Common Areas and in the Leased Premises (if any); (3) Cleaning and janitorial services after business hours on Business Days in accordance with the standards set forth in Exhibit C to this Lease; (4) Hot and cold running water in the toilet rooms located in the Common Areas and at valved outlets at the locations in the Leased Premises (if any) shown on Tenant's Space Layout; (5) Subject to the provisions of subsections (d), heating, ventilating and air-conditioning to the Leased Premises as may seasonally be required to maintain a minimum temperature within all of the Leased Premises of 72(degree)F in winter when outdoor temperatures are 10(degree)F, or above, and a maximum temperature within all of the Leased Premises of 76(degree)F in summer when outdoor temperatures are 91(degree)F or below, between the hours of 8:00 A.M. and 7:00 P.M. on Business Days and between the hours of 8:00 A.M. and 1:00 P.M. on Saturdays ("normal business hours") unless Saturday is a Legal Holiday in accordance with the standards set forth in subsection (f); (6) Automatically operated elevator service 24 hours a day, seven days a week, but Landlord may limit the number of elevators in the Building in operation at times other than during normal business hours on Business Days but in no event less than one; (7) All electric bulbs and fluorescent tubes in light fixtures in the Common Areas and Building Standard light fixtures in the Leased Premises shall be promptly replaced when necessary; (8) A security access system for the Common Areas of the Building; and (9) Sufficient access cards, to be used in conjunction with the security system, to provide each employee of Tenant with a card, and a system for disarming and replacing cards as employees leave or are replaced. 17 (b) Electricity. Landlord shall not be liable in any way to Tenant for any failure or defect in the supply or character of electrical energy furnished to the Leased Premises by reason of any requirement, act or omission of the public utility providing the Building with electricity. Tenant's use of electrical energy in the Leased Premises shall not at any time exceed the capacity of any of the electrical conductors and equipment in or otherwise serving the Leased Premises. Tenant shall not install or operate in the Leased Premises any electrically operated equipment which uses electric current in excess of the capacity specified in paragraph (1) of subsection (a) without Landlord's prior consent, which consent may be conditioned upon Tenant's agreement to pay an additional charge to compensate Landlord for Tenant's excessive consumption of electricity and to pay the cost of any additional wiring or electrical equipment or installations which may be required for the operation of such equipment. In order to ensure that such normal capacity is not exceeded and to avert a possible adverse effect upon the Building electrical service Tenant shall give notice to Landlord before Tenant connects to the Building electrical distribution system any electrically operated equipment other than lamps, typewriters, personal computers, copy machines and similar small office machines. Any feeders or risers to supply Tenant's electrical requirements in addition to those originally installed, and all other equipment proper and necessary in connection with such feeders or risers, shall be installed by Landlord upon Tenant's request, at the sole cost and expense of Tenant, but only if, in Landlord's reasonable judgment, such additional feeders or risers are permissible under all Legal Requirements and Insurance Requirements and the installation of such feeders or risers will not cause permanent damage or injury to the Building or cause or create a dangerous condition or unreasonably interfere with other tenants of the Building. Tenant may elect, at Tenant's sole cost and expense to separately meter full floors of the Leased Premises. (c) Landlord's Right to Meter Tenant's Electrical Usage. If, at any time or from time to time, the estimated connected electrical load (including lighting and power) used by Tenant's lighting and electrically operated equipment exceeds the capacity specified in paragraph (1) of subsection (a), Landlord may either (i) install a separate electric meter for the Leased Premises, at Tenant's sole cost and expense, and Tenant shall reimburse Landlord for the cost of electricity it consumes, as recorded by such meter, in excess of the amount of electricity that would be consumed by a tenant whose consumption of electricity was equal to, but did not exceed, the specified limits, or (ii) from time to time have a survey made by an independent electrical engineer or electrical consulting firm to be selected and paid for by Landlord to determine the amount of electricity consumed by Tenant in excess of the amount of electricity that would be consumed by a tenant whose 18 consumption of electricity was equal to, but did not exceed, the specified limits, and Tenant shall pay to Landlord the cost of excess electricity it consumes as determined by such electrical engineer or consulting firm. (d) After-Hours Heating and Air-Conditioning. Landlord shall provide heat and air-conditioning at times in addition to those specified in paragraph (5) of subsection (a) at Tenant's expense, if Tenant gives Landlord notice before 3:00 P.M. (in the case of after-hours service on weekdays) and before 3:00 P.M. on Fridays or the day preceding a Legal Holiday (in the case of after-hours service on Saturdays, Sundays or Legal Holidays). Landlord shall have the right throughout the Term to charge Tenant for after-hours use of heat or air-conditioning at an hourly rate which represents Landlord's reasonable estimate of its actual cost of providing such after-hours service, including labor, cost of electricity and wear and tear on equipment, plus an allowance of 10% thereof to cover general overhead but in no event more than comparable charges at Peer Group Buildings. During the first Lease Year, Landlord's charge for after-hours service shall not exceed the Initial After Hours HVAC Rate. If the same after-hours service is also requested by other tenants on the same floor of the Building as Tenant, the charge therefor to each tenant requesting such after-hours service shall be a pro-rated amount based upon the square footage of the leased premises of all tenants on the same floor requesting such after-hours services. Tenant shall pay such charges to Landlord within 15 days after Tenant's receipt of an invoice therefor. Notwithstanding anything herein to the contrary, Tenant may, in lieu of being charged for after-hours service, request Landlord to install at Tenant's sole cost and expense a separate electric meter with time of day capability for the Leased Premises and thereafter Tenant shall reimburse Landlord for the cost of electricity it consumes, as recorded by such meter, plus Tenant's pro rata share of the maintenance and depreciation associated with that portion of the HVAC system attributable to such after hours use and reasonable administration costs associated therewith, if applicable. (e) Landlord's Right to Maintain Pipes, Conduits. etc. Landlord reserves the right to erect, install, use, maintain and repair pipes, ducts, conduits, cables, plumbing, vents and wires in, to and through the Leased Premises as and to the extent that Landlord may now or hereafter deem to be necessary or appropriate for the proper operation and maintenance of the Building, or other tenants' installations in the Building, and the right at all times to transmit water, heat, air-conditioning and electric current through such pipes, conduits, cables, plumbing, vents and wires. In exercising its rights under this subsection, Landlord shall use reasonable efforts to minimize interference with Tenant's business 19 in the Leased Premises (but with no obligation to employ labor at overtime or other premium pay rates). (f) HVAC Specifications. Landlord represents to Tenant that the HVAC system for the Leased Premises has been designed to provide for the comfortable occupancy of the Leased Premises at temperatures consistent with those provided in other Peer Group Buildings subject to Legal Requirements. Landlord shall not be responsible if the normal operation of the Building air-conditioning system shall fail to provide conditioned air within comfortable temperatures levels (i) in any portions of the Leased Premises which have a connected electrical load for all purposes (including lighting and power) in excess of 5 watts per square foot of Rentable Area or which have a human occupancy factor in excess of one individual for each 100 square feet of Rentable Area (the average electrical load and human occupancy factors for which the Building air-conditioning system is designed), (ii) because of the arrangement of partitioning or other Alterations made by or on behalf of Tenant or any Person claiming through or under Tenant (including work performed by Landlord for Tenant pursuant to Exhibit B), (iii) in any portions of the Leased Premises exposed to direct sunlight in which Tenant fails to keep the venetian blinds closed, or (iv) because of the failure by Tenant or its employees to use the HVAC system in the manner in which it was designed to be used. Tenant agrees to observe and comply with all reasonable rules from time to time prescribed by Landlord for the proper functioning and protection of the HVAC systems in the Building. (g) Cessation of HVAC and Mechanical Services. Landlord reserves the right to stop the service of heating, air-conditioning, ventilating, elevator, plumbing, electricity or other mechanical systems or facilities in the Building, if necessary by reason of accident or emergency, or for repairs, alterations, replacements, additions or improvements which, in the reasonable judgment of Landlord, are desirable or necessary, until said repairs, alterations, replacements, additions or improvements shall have been completed. The exercise of such right by Landlord shall not constitute an actual or constructive eviction, in whole or in part, or relieve Tenant from any of its obligations under this Lease, or impose any liability upon Landlord or its agents by reason of inconvenience or annoyance to Tenant, or injury to, or interruption of, Tenant's business, or otherwise, or entitle Tenant to any abatement or diminution of rent. Except in cases of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage of any such systems or facilities. In all cases, Landlord will use due diligence to complete any such repairs, alterations, replacements, additions or improvements with reasonable promptness. Landlord shall also perform any such work in a manner reasonably designed to minimize interference with 20 Tenant's normal business operations (but with no obligation to employ labor at overtime or other premium pay rates). (h) Unavoidable Delays in Providing Building Services. Landlord does not make any warranty that the services to be provided by this Section will be free from any irregularity or stoppage. Landlord shall use due diligence to correct any such irregularity or stoppage. However, if Landlord fails to supply, or is delayed in supplying, any service expressly or impliedly to be supplied by Landlord under this Lease, or is unable to make, or is delayed in making, any repairs, alterations, additions, improvements or decorations, or is unable to supply, or is delayed in supplying, any equipment or fixtures, and if such failure, delay or inability results from Unavoidable Delays, such failure, delay or inability shall not constitute an actual or constructive eviction, in whole or in part, or relieve Tenant from any of its obligations under this Lease, or impose any liability upon Landlord or its agents by reason of inconvenience to Tenant, or injury to, or interruption of, Tenant's business, or otherwise, or entitle Tenant to any abatement or diminution of rent. Provided, however, should any disruption in service or utilities which has any material adverse impact on Tenant's business last beyond five (5) consecutive days, Tenant shall be entitled to abate one day of Basic Rent for each day of further disruption of services. (i) Landlord, in addition to any other obligations set forth in this Lease, shall be responsible for making all repairs, alterations and improvements resulting from: (1) any deficiencies or defects in the initial plans for the Building, including any failures to meet current Legal Requirements; (2) an inability to enforce any guaranties or warranties provided in conjunction with the construction of the Base Building in the Leased Premises; and (3) future Legal Requirements applicable to the Building, the Parking Facilities or the Leased Premises provided, however, that Tenant shall reimburse Landlord for the cost of any repairs, alterations and improvements in the Leased Premises as Additional Rent on a monthly basis over a period of time equal to the useful life of the repairs, alterations and improvements. (j) Work During Non-Business Hours. Landlord agrees that, except in the event of serious emergencies requiring immediate attention, at Tenant's request and at Tenant's sole expense (as to the additional cost of performing the work during non-business hours), all work required to be done in the Leased Premises shall be performed during hours which are not normal business hours. 21 6. Use of Leased Premises and Building. (a) Permitted Use. Tenant and its permitted subtenants shall use and occupy the Leased Premises solely for general office purposes and other legally permitted uses which are mutually agreed upon by Landlord and Tenant, including transmitting equipment and studios; seminar rooms and auditoriums; training areas and work stations; dining areas, vending areas and classrooms in accordance with the applicable Legal Requirements and zoning regulations consistent with the character and dignity of the Building, and shall not use or permit or suffer the use of the Leased Premises for any other purpose whatsoever without the prior consent of Landlord which shall not be unreasonably withheld or delayed. Tenant shall control its business and control Tenant's Associates in such a manner as not to create a nuisance or interfere with, annoy or disturb other tenants or Landlord in the management of the Building. Tenant shall not permit or suffer the Leased Premises to be occupied by anyone other than Tenant except as provided by Section 15. Tenant shall at all times have access to the Leased Premises, the Building, and the Parking Facilities 24 hours a day, seven days a week, subject, however, in all respects to all the terms contained in this Lease. However, Landlord may regulate and restrict access to the Building and the Parking Facilities at times other than normal business hours on Business Days for security purposes so long as Tenant's employees, agents and business invitees have reasonable access to the Leased Premises, and the Parking Facilities without unreasonable inconvenience. (b) Payments of Taxes. Throughout the Term, Tenant covenants and agrees to pay 10 days before delinquency any and all taxes, assessments and public charges levied, assessed or imposed upon Tenant's business conducted in the Leased Premises, upon the Leasehold Estate or upon Tenant's Personal Property other than Real Estate Taxes. (c) Restrictions on Use. Throughout the Term, Tenant shall not : (i) knowingly use or permit or suffer the use of any portion of the Leased Premises, the Building or the Parking Facilities for any unlawful purpose; (ii) use the plumbing facilities for any purpose other than that for which they were constructed, or dispose of any foreign substances therein; (iii) place a load on any floor exceeding the floor load per square foot which such floor was designed to carry in accordance with the plans and specifications of the Building; (iv) install, operate or maintain in the Leased Premises any heavy item of equipment except in such manner as to achieve a proper distribution of weight; (v) strip, overload, damage or deface the Leased Premises, the Common Areas or the Parking Facilities, or the fixtures therein or used therewith; (vi) move any bulky furniture or equipment into or out of the Leased Premises except at such times and using such loading docks, 22 entrances and elevators as Landlord may from time to time designate; (vii) use any floor adhesive in the installation of any carpeting without Landlord's prior written consent; or (viii) install in the Leased Premises any other equipment of any kind or nature which will or may necessitate any changes, replacements or additions to, or in the use of, the water system, HVAC system, plumbing system, or electrical system serving the Leased Premises or the Building, unless the Alterations involved in making such changes, replacements or additions have been approved by Landlord in writing and made pursuant to Section 9(a). (d) Compliance with Legal Requirements. (i) Landlord represents and warrants to the Tenant that the Building, the Parking Facilities and the Leased Premises are or will be in compliance with all applicable Legal Requirements, including the Americans With Disabilities Act, at the Lease Commencement Date, and that Landlord is not now aware of any Legal Requirements that will go into effect subsequent to that date which have not been incorporated in the design and construction of the Building, the Parking Facilities and the Leased Premises. (ii) Tenant, at its expense, shall make any Alterations required after the Lease Commencement Date to comply with Legal Requirements to the extent the obligation to comply with such Legal Requirements arises uniquely from Tenant's use or manner of use of the Leased Premises and not from any general office or educational use. (iii) Neither Landlord nor Tenant shall use or occupy the Leased Premises, or knowingly permit the Leased Premises, the Building or the Parking Facilities to be used or occupied in violation of any Legal Requirements. Specifically, Tenant is obligated to comply with all provisions of the Americans With Disabilities Act applicable to Alterations made to the Leased Premises beyond those to be made by Landlord as part of Landlord's work, and Landlord is responsible for all other forms of compliance. (iv) If, after the commencement of the Term, any governmental authority shall contend or declare that the Leased Premises or the Building are being used for a purpose which is in violation of any Legal Requirements, (i) Tenant shall, upon five days' notice from Landlord, immediately discontinue such use of the Leased Premises, unless Tenant has in the interim, undertaken to challenge the claim, and the continuation of such challenge does not jeopardize Landlord's interest in the Building (whether through bonding or by way of the limited nature of remedies available to the governmental authority), and (ii) Landlord shall seek to discontinue such use in a manner that avoids any adverse 23 consequences to Tenant, including disruption of service and/or utilities. If thereafter the governmental authority asserting such violation threatens, commences or continues proceedings against Landlord for Tenant's failure to discontinue such use, in addition to any and all rights, privileges and remedies given to Landlord under this Lease for default therein, Landlord shall have the right to terminate this Lease forthwith. Tenant shall save, defend, indemnify and hold harmless Landlord from and against any and all liability for any such violation or violations resulting from Tenant's actions or failure to take action. Landlord shall save, defend, indemnify and hold harmless Tenant from and against any liability for any violation or violations resulting from Landlord's actions or failure to take action. (e) Compliance with Insurance Requirements. Tenant shall not use or occupy the Leased Premises, or permit the Leased Premises, the Building or the Parking Facilities be used or occupied, in violation of Insurance Requirements. Tenant shall not do, or permit anything to be done, in or upon the Leased Premises, the Building or the Parking Facilities, or bring or keep anything therein, which shall increase the premiums payable for casualty and property damage insurance for the Land, the Building or the Parking Facilities or on any property located therein. If, by reason of the failure of Tenant to comply with the provisions of this subsection, the premiums payable for casualty and property damage insurance for the Land, the Building or the Parking Facilities shall at any time be higher than they otherwise would be, then Tenant shall reimburse Landlord and any other tenant of the Building, on demand, for that part of all premiums for any insurance coverage that shall have been charged because of such violation by Tenant and which Landlord or such other tenant, or both, shall have paid on account of an increase in the rate or rates in its own policies of insurance. (f) No Flammable Substances. Tenant shall not bring or permit to be brought or kept in or on the Leased Premises any flammable, combustible or explosive substance except standard cleaning fluid, standard equipment, materials and supplies (including magnetic tape) customarily used in conjunction with business machines and equipment of the type used from time to time by Tenant in reasonable quantities. (g) Hazardous Substances. (i) Tenant shall not (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Substances. Tenant shall not allow the storage or use of such Hazardous Substances in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such Hazardous Substances, nor allow to be brought into 24 the Leased Premises any Hazardous Substances except to use in the ordinary course of Tenant's business. (ii) Landlord has provided Tenant with a copy of a Limited Phase II Environmental Site Assessment Inner Harbor East-Parcel G prepared by Engineering Consulting Services, Ltd. and dated June 20, 1995 (the "Environmental Report"). Landlord represents and warrants to Tenant that it has no knowledge of any Hazardous Substances on the site, other than as noted in the Environmental Report. Any remediation required in connection with matters described in the Environmental Report shall be Landlord's responsibility, and the indemnity described in clause (iii) below shall apply to such Landlord obligation. (iii) Landlord represents and warrants to Tenant that Landlord will not directly, nor knowingly permit others to, cause or permit the escape, disposal or release of any Hazardous Substances anywhere on the Land or within the Parking Facilities and the Building and Landlord will indemnify and hold Tenant harmless from any liability, cost or expense resulting from a violation of these provisions if caused by Landlord or persons acting at Landlord's direction. (iv) Any expenses incurred by either party for the purpose of testing shall be borne by the party undertaking the test, unless a determination is made that a violation has occurred of this Section 6(g), in which event the party responsible for the violation shall bear the cost of the testing. (v) Each party shall execute affidavits, representations and the like from time to time at the other party's request concerning the responding party's best knowledge and belief regarding the presence of Hazardous Substances on the Leased Premises. (vi) In all events, Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease from any release of hazardous materials on the Leased Premises occurring while Tenant is in possession, or elsewhere if caused by Tenant or Persons acting under Tenant or at Tenant's direction. 7. Care of Leased Premises and Building. (a) Maintenance and Repairs by Tenant. Tenant shall act with care in its use and occupancy of the Leased Premises and the fixtures therein and, at Tenant's sole cost and expense, shall furnish its own electric bulbs and fluorescent tubes for all light fixtures in the Leased Premises which are not Building Standard fixtures and, except as otherwise provided in Section 13, shall make all repairs and replacements to the Leased Premises, other 25 than structural necessitated or caused by the willful or negligent acts or omissions of Tenant, Tenant's Associates or any Person claiming through or under Tenant or by the use or occupancy or manner of use or occupancy of the Leased Premises by Tenant, Tenant's Associates or any such Person. Without affecting Tenant's obligations set forth in the preceding sentence, Tenant, at Tenant's sole cost and expense, shall also (i) make all repairs and replacements, as and when necessary, to Alterations (other than for correcting Landlord's work), and (ii) perform all maintenance and make all repairs and replacements, as and when necessary, to any air-conditioning equipment, private elevators, escalators, conveyors or mechanical systems (other than the standard equipment and systems serving the Building) which may be installed in the Leased Premises by Landlord or Tenant. In addition to the foregoing, all damage or injury to the Leased Premises or its fixtures, appurtenances and equipment or to the Building or to its fixtures, appurtenances and equipment caused by Tenant moving property in or out of the Building or by installation or removal of furniture, fixtures or other property by Tenant shall be repaired, restored or replaced promptly by Tenant, at its sole cost and expense, to the reasonable satisfaction of Landlord. All such aforesaid repairs, restoration and replacements shall be in quality and class equal to the original work or installation and shall be made in accordance with accepted construction practices. (b) Landlord's Responsibility for Maintenance and Repairs. Except as otherwise provided in subsection (a), Landlord shall make or cause to be made the following repairs as and when necessary: (i) structural repairs to the Building, provided, however, that Tenant shall reimburse Landlord for the costs of structural repairs to the Leased Premises due to Tenant's negligence as Additional Rent; (ii) repairs required in order to provide the elevator, plumbing, electrical, HVAC and other services to be furnished by Landlord pursuant to this Lease; (iii) maintenance and repairs to exterior portions of the Building, including the windows, balconies and roof; (iv) repairs to the Common Areas unless caused by the misconduct or negligent action of Tenant or Tenant's Associates; and (v) any other repairs required under other provisions of this Lease (including Section 5(i) above. Landlord's obligations under the preceding sentence shall not accrue until after notice by Tenant to Landlord of the necessity for any specific repair. Landlord shall perform its obligations under this subsection in accordance with accepted construction practices so as to minimize interference with Tenant's business in the Leased Premises (but with no obligation to employ labor at overtime or other premium pay rates). 26 8. Rules and Regulations, Tenant shall, and shall cause Tenant's Associates to, comply with and observe all reasonable rules and regulations concerning the use, management, operation, safety and good order of the Leased Premises, the Common Areas, the Parking Facilities and the Building which may from time to time be promulgated by Landlord, provided that such rules and regulations are not inconsistent with the provisions of this Lease, do not increase the cost of occupancy to Tenant, do not reduce the scope of Landlord's obligations hereunder and do not materially interfere with Tenant's use of the Leased Premises. Initial rules and regulations, which shall be effective until amended by Landlord, are attached as Exhibit D to this Lease. Tenant shall be deemed to have received notice of any amendment to the rules and regulations when a copy of such amendment has been delivered to Tenant at the Leased Premises or has been delivered to Tenant in the manner prescribed for the giving of notices. Tenant may not dispute the reasonableness of any additional rule or regulation unless Tenant's intention to do so is asserted by notice given to Landlord within 30 days after notice is given to Tenant of the adoption of any such additional rule or regulation. Landlord shall make reasonable efforts to uniformly enforce the Rules and Regulations, and the covenants or agreements contained in any other lease. Tenant may challenge the implementation of particular Rules and Regulations on the basis that they are not comparable to rules and regulations of Peer Group Buildings. In the event the Rules and Regulations conflict with any provisions set forth in the Lease, the Lease provisions will control. 9. Tenant's Alterations. (a) Tenant's Alterations. Except for Minor Alterations which require no prior consent or approval from Landlord, Tenant shall not make or perform, or permit the making or performance of, any Alterations without Landlord's prior consent. Notwithstanding the foregoing provisions of this subsection or Landlord's consent to any Alterations, all Alterations made during the Term shall be made and performed in conformity with and subject to the following provisions: (i) all Alterations shall be made and performed at Tenant's sole cost and expense and, except for Minor Alterations, at such time and in such manner as Landlord may reasonably designate; (ii) all Alterations, except for Minor Alterations, shall be made only by contractors or mechanics approved by Landlord; (iii) no Alteration shall affect any part of the Building other than the Leased Premises or adversely affect any service required to be furnished by Landlord to Tenant or to any other tenant or occupant of the Building; (iv) all business machines and mechanical equipment shall be placed and maintained by Tenant in settings sufficient in Landlord's reasonable judgment to absorb and prevent vibration, noise and annoyance to other tenants or 27 occupants of the Building; (v) Tenant shall submit to Landlord reasonably detailed plans and specifications for each proposed Alteration and shall not commence any such Alteration without first obtaining Landlord's approval of such plans and specifications, which approval will not be unreasonably withheld or delayed, but Landlord shall have the right to withhold its consent to Alterations involving structural changes or changes affecting the Common Areas or the Building for any reason whatsoever; (vi) all Alterations in or to the electrical facilities in or serving the Leased Premises shall be subject to the provisions of Section 5(b); (vii) notwithstanding Landlord's approval of plans and specifications for any Alteration, all Alterations shall be made and performed in full compliance with all Legal Requirements and Insurance Requirements and in accordance with the Rules and Regulations; (viii) all materials and equipment to be incorporated in the Leased Premises as a result of all Alterations shall be of good quality; (ix) Tenant shall require any contractor performing Alterations to carry and maintain at all times during the performance of the Alterations, at no expense to Landlord, (I) a policy of Commercial General Liability Insurance, including contractor's liability coverage, completed operations coverage and contractor's protective liability coverage, naming Landlord and (at Landlord's request) the Additional Insureds, as additional insureds, with such policy to afford protection to the limit of not less than $5,000,000 combined single limit annual aggregate for bodily injury, death and property damage, and (II) workmen's compensation or similar insurance in the form and amounts required by the laws of the Jurisdiction in which the Building is located; (x) except as to Minor Alterations, Tenant shall carry (or shall cause its contractor to carry) at all times during the performance of the Alterations, at no expense to Landlord, a policy of Builders Risk Insurance written on the Completed Value Form covering the Alterations in an amount equal to 100% of the replacement cost thereof; and (xi) if the estimated cost of an Alteration exceeds $100,000, Tenant shall, before commencement of work, at Tenant's sole cost and expense, furnish to Landlord a surety company performance and payment bond, issued by a surety company reasonably acceptable to Landlord, or other security satisfactory to Landlord, in an amount at least equal to the estimated cost of the Alteration, or a guaranty satisfactory to Landlord guaranteeing the completion thereof within a reasonable time, free and clear of all liens and in accordance with the plans and specifications approved by Landlord. In the event of any dispute between the parties as to whether or not Landlord has acted reasonably in any case with respect to which Landlord is required, pursuant to the provisions of this subsection (a) to do so, Tenant's sole remedy shall be to submit such dispute to arbitration pursuant to Section 28. If the determination in any such arbitration shall be adverse to Landlord, Landlord nevertheless shall not be liable to Tenant for breach of Landlord's covenant to act 28 reasonably, and Tenant's sole remedy in such event shall be to proceed with the proposed Alterations. (b) No Union Conflicts. Tenant shall not knowingly, at any time before or during the Term, directly or indirectly employ, or permit the employment of, any contractor, mechanic or laborer in the Leased Premises, whether in connection with any Alteration or otherwise, if such employment will interfere with, or cause any conflict under, any collective bargaining agreement with other contractors, mechanics or laborers engaged in the construction, maintenance or operation of the Building by Landlord, Tenant or others. (c) Tenant's Right to Cure. If Tenant shall be in default under this Section by reason of the making of any Alteration not hereby authorized or by reason of failure to give any notice or to obtain any approval required herein, Tenant may cure such default within the applicable grace period provided in this Lease for curing such default by immediately commencing the removal of such Alteration and restoring the Leased Premises to the condition they were in before the Alteration was made. (d) Title to, and Removal of, Alterations. Title to all Alterations made by Tenant, at its expense, after the Lease Commencement Date shall be and remain in Tenant throughout the Term, but on the expiration or earlier termination of this Lease Tenant hereby covenants and agrees that title to all Alterations not previously removed from the Leased Premises pursuant to this subsection, and the right to possess and use the same, shall automatically pass to and be vested in Landlord without payment or consideration of any kind. Although the provisions of the preceding sentence are intended to be self-executing, Tenant hereby agrees, upon such earlier expiration or termination of this Lease, to execute any further deed, bill of sale or document requested by Landlord to confirm Landlord's title to Alterations and Tenant's grant and conveyance thereof to Landlord pursuant to this subsection. Tenant hereby appoints Landlord irrevocably as its attorney-in-fact with an interest to execute, acknowledge and deliver on its behalf any such deed, bill of sale or document. As long as an Event of Default has not occurred and is not continuing, Tenant may, at its expense, remove from the Leased Premises before the expiration of the Term any Alterations made by Tenant after the Lease Commencement Date the removal of which Landlord shall have consented to before the Alteration was made. Tenant shall repair all damage to the Leased Premises caused by the removal of such Alterations and Tenant shall repair, including all necessary replacements, all adjoining surfaces to a condition equivalent to Building Standard Work. Any Alterations which Tenant has the right to remove and which are not removed from the Leased Premises at the expiration of the Term shall be deemed to have been abandoned by 29 Tenant and may be disposed of by Landlord without thereby incurring liability to Tenant. (e) Removal of Tenant's Personal Property. All of Tenant's Personal Property shall remain the property of Tenant and may, at its expense, be removed from the Leased Premises at any time during the Term. Tenant shall, at its expense, remove all of Tenant's Personal Property at the expiration of the Term. Tenant shall repair all damage to the Leased Premises caused by the removal of Tenant's Personal Property to the condition it was in before the installation of the item removed, ordinary wear and tear excepted. Any of Tenant's Personal Property which is not removed from the Leased Premises at the expiration of the Term shall be deemed to have been abandoned by Tenant and may be disposed of by Landlord without thereby incurring liability to Tenant. (f) Landlord's Right to Remove Alterations and Tenant's Personal Property. If Tenant fails to remove Alterations or Tenant's Personal Property and make the repairs required by subsections (d) or (e), Landlord shall have the right, provided there is no event of default, after notice and failure of Tenant to cure same within 5 days, to remove such Alterations or Tenant's Personal Property or make such repairs and Tenant shall reimburse Landlord, on demand, for any costs incurred by Landlord as a result of such removal or repair. (g) Mechanics' Liens. Notice is hereby given that Landlord shall not be liable to any Person for any labor or materials furnished or to be furnished to Tenant upon credit, and that no mechanic's, materialman's or other lien for any such labor or materials shall attach to or affect the reversion or other estate or interest of Landlord in and to the Leased Premises, the Building or the Land. Whenever and as often as any mechanic's lien or materialman's lien shall have been filed against the Leased Premises, the Building or the Land based upon any act or interest of Tenant or of anyone claiming through or under Tenant, or if any lien with respect thereto shall have been filed affecting any materials, machinery or fixtures used in the construction, repair or operation thereof or annexed thereto by Tenant or anyone claiming through or under Tenant, Tenant shall, at its expense, immediately take such action by bonding, deposit or payment as will remove or satisfy the lien or other security interest. If Tenant fails to bond remove or discharge the lien or other security interest within 30 days after receipt of demand therefor by Landlord, Landlord, in addition to any other remedy under this Lease and without waiving or releasing Tenant's default in not timely discharging the lien or security interest, may pay the amount secured by such lien or security interest or discharge the same by deposit and the amount so paid or deposited shall be collectible as additional rent. The provisions of this subsection 30 shall not be applicable to liens filed with respect to work done for Tenant's account by Landlord at Landlord's expense. (h) Plans. Promptly after the completion of any Alterations, Tenant shall deliver to Landlord a complete set of "as built" drawings showing the Alterations in place to the extent such drawings are prepared. 10. Name of Building; Tenant's Signs. (a) Name. Landlord expressly reserves the right to have the Building designated by a street number or numbers and to affix to the Building, at locations designated by Landlord, signs indicating any such number or numbers and the name of the Building as selected from time to time by Landlord. The name of the Building shall reflect the address of the Building. (b) Exterior Signs. Except as set forth below, Landlord has not granted to Tenant any rights in or to the roof or the exterior surfaces of the perimeter walls of the Building, control of which is hereby reserved to Landlord. Landlord agrees to allow Tenant, at Tenant's sole cost and expense, to erect signage on the exterior of the Building, the size, shape and illumination of such signage to be mutually agreed to by Landlord and Tenant and further subject to the review and approval of Baltimore City. The size, design, location and content (which may include the word "SYLVAN" and/or a corporate logo) of the exterior signage shown on Exhibit H has been approved by Landlord and Tenant. Landlord hereby agrees that such approval is granted for comparable signage in substitution of that shown should Tenant's name and/or logo change. Landlord shall not grant rights to any other tenant to have any exterior signage on the roof or top floor of the Building. Tenant shall not display or erect any lettering, signs, advertisements, awnings or other projections on the interior of the Leased Premises which can be seen from the exterior of the Building, without the prior written consent of Landlord which shall not be unreasonably withheld. Landlord shall provide at Tenant's expense customary suite entry door lettering identifying Tenant in the style and color selected by Landlord for the Building. The number, size, color, style and configuration of such lettering shall be determined by Landlord. Except for the retail tenants, no other tenant shall display a sign on the exterior of the Building as long as Tenant occupies at least its current share of space in the Building. If at any time during the Term hereof, including all renewals, construction on any of those parcels located on the Inner Harbor East Subdivision Plan as shown on Exhibit I hereto, the effect of which materially and adversely blocks or obstructs the view of the signage containing the name of Tenant as permitted by 31 this Section 10(b), then subject to applicable governmental regulations, Tenant shall be permitted to relocate such signs to such other location on the exterior of the Building as Tenant may reasonably require, provided such relocation is performed at Tenant's sole cost and expense and does not adversely affect the structural integrity of the Building. Such relocation shall be subject to Landlord's prior written approval which shall not be unreasonably withheld or delayed. (c) Building Directory. Landlord shall provide a directory in the main lobby of the Building, at its expense, upon which Landlord, at Landlord's expense, will affix Tenant's name and a reasonable and customary number of names of its officers, partners or employees as designated by Tenant. The size, color and style of such directory and names affixed thereto shall be selected by Landlord. (d) Ground Level Exterior Signs. Landlord agrees that either (i) Tenant at its sole cost and expense shall be permitted to erect one sign on the first floor exterior of the Building or at such other location on the Land as Tenant shall reasonably require containing the name and logo of Tenant (the "Sylvan Sign"), subject to applicable governmental regulations and subject to Landlord's prior written approval, which shall not be unreasonably withheld or delayed; or (ii) Landlord at its sole cost and expense shall erect an exterior directory sign at the entrance to the Building listing all of the tenants in the Building with Tenant's name prominently displayed and sized in proportion to the square footage leased by Tenant in the Building (the "Building Directory Sign"). The election to choose a Sylvan Sign or a Building Directory Sign shall be in Landlord's sole discretion and shall be made prior to the Lease Commencement Date. 11. Tenant's Insurance. (a) Liability Insurance. Tenant, at Tenant's sole cost and expense, shall obtain and maintain in effect throughout the Term a policy of Commercial General Liability Insurance (ISO form or equivalent) naming Landlord and (at Landlord's request) the Additional Insureds as additional insureds, protecting Landlord, Tenant and, if applicable, the Additional Insureds against liability for bodily injury, death and property damage occurring upon or in the Leased Premises, with such policy to afford protection to the limit of not less than $1,000,000 with respect to bodily injury or death or damage to property arising from any one occurrence and $2,000,000 from the aggregate of all occurrences within each policy year. If the policy also covers locations other than the Leased Premises, the policy shall include a provision to the effect that the aggregate limit of $2,000,000 shall apply 32 separately at the Leased Premises and that the insurer will provide notice to Landlord if the aggregate is reduced either by payment of claims or the establishment of reserves for claims if the payments or reserves exceed $250,000. If the aggregate limit of $2,000,000 is reduced by the payment of a claim or the establishment of a reserve, Tenant agrees to take immediate steps to have the aggregate limit restored by endorsement to the existing policy or the purchase of an additional insurance policy which complies with this subsection. (b) Property Damage Insurance. Tenant, at Tenant's sole cost and expense, shall obtain and maintain throughout the Term a policy of property damage insurance on Alterations and Tenant's Personal Property in an amount sufficient to prevent Tenant from becoming a co-insurer. (c) Policy Requirements. The insurance policies required to be obtained by Tenant under this Section: (i) shall be issued by an insurance company of recognized responsibility qualified to do business in the jurisdiction in which the Building is located which is rated A or better (and is in a Financial Size Category of Class VIII or higher) by Best's Key Rating Guide or which has an equivalent financial rating from a comparable insurance rating organization, and (ii) shall provide (and each certificate evidencing the existence of such insurance policy shall certify) that the insurance policy shall not be canceled or amended (other than to increase the amount of coverage) unless Landlord shall have received 30 days' prior written notice of such cancellation or amendment. All limits of liability required by subsection (a) may be satisfied by maintaining a policy of primary insurance and a policy or policies of excess liability insurance. Neither the issuance of any insurance policy required under this Lease nor the minimum limits specified herein with respect to Tenant's insurance coverage shall be deemed to limit or restrict in any way Tenant's liability arising under or out of this Lease. (d) Evidence of Insurance. On or before the Lease Commencement Date, and at least 15 days before the expiration of the expiring certificate previously furnished, Tenant shall deliver to Landlord a certificate of insurance evidencing the issuance of each insurance policy required to be obtained by Tenant under this Section. (e) Landlord's Indemnification. Except for the willful or grossly negligent acts or omissions (where applicable law imposes a duty to act) of Landlord or its agents, employees or contractors, Tenant hereby agrees to indemnify and hold harmless Landlord, the Additional Insureds and the officers, directors, agents and employees of, and the partners in, Landlord and the Additional Insureds, from and against any and all claims, losses, actions, 33 damages, liabilities and expenses (including reasonable attorneys' fees and disbursements) that (i) arise from or are in connection with Tenant's possession, use, occupancy, management, repair, maintenance or control of all or any part of the Leased Premises, the making or removal of Alterations and the performance of all related construction work, or that relate in any other manner to the business conducted by Tenant in the Leased Premises, or (ii) arise from or are in connection with any willful or negligent act or omission of Tenant or Tenant's Associates, or (iii) result from any default, breach, violation or nonperformance of this Lease or any provision therein by Tenant, or (iv) arise from injury or death to individuals or damage to property sustained on or about the Leased Premises. Tenant shall, at its own cost and expense, upon notice thereof from Landlord, defend any and all actions, suits and proceedings which may be brought against Landlord, the Additional Insureds and the officers, directors, agents and employees of, and the partners in, Landlord and the Additional Insureds, or any of them, with respect to the foregoing or in which Landlord, the Additional Insureds and the officers, directors, agents and employees of, and the partners in, Landlord and the Additional Insureds, or any of them, may be impleaded. Tenant shall pay, satisfy and discharge any and all final money judgments which may be recovered against Landlord, the Additional Insureds and the officers, directors, agents and employees of, and the partners in, Landlord and the Additional Insureds, or any of them, in connection with the foregoing. For so long as Tenant is in compliance with the insurance requirements of this Section 11, the indemnity provided above shall be limited to the policy limits of such insurance, excluding only such deductibles as Tenant maintains, provided, however, that Tenant is still liable if the act is not covered by Tenant's insurance or insurance coverage is not in place. (f) Contractual Liability Insurance. Tenant agrees to keep and maintain as part of the coverage of its policy(ies) of liability insurance contractual liability coverage or a contractual liability endorsement covering Tenant's liability to Landlord for bodily injury or damage to property of others under subsection (e), in the same limits required by subsection (a). (g) Prohibition Against Concurrent Insurance. All property damage insurance shall be written as primary insurance. Tenant shall not take out separate insurance concurrent in form or contributing in the event of loss with any property damage insurance carried by Landlord for the Building unless Landlord is included therein as an insured. 34 12. Landlord's Insurance. (a) Property Damage Insurance. Landlord, at its cost and expense, but subject to Section 3(b), shall obtain and maintain throughout the Term a policy of property damage insurance covering the Building and the Parking Facilities, but not Alterations or Tenant's Personal Property, providing all-risk coverage in such amount as any first Mortgagee of the Building may from time to time require or in such greater amount as Landlord may from time to time determine, but in no event less than the replacement cost (excluding footings and foundations) of the Building and the Parking Facilities. (b) Liability Insurance. Landlord, at Landlord's cost and expense, but subject to Section 3(b), shall obtain and maintain in effect throughout the Term a policy of Commercial General Liability Insurance (ISO form or equivalent) insuring Landlord against liability for bodily injury, death and property damage occurring upon, in or about the Land, the Building and the Parking Facilities, with such policy to afford protection to the limit of not less than 85,000,000 combined single limit annual aggregate for bodily injury, death and property damage. (c) Blanket Policy. Landlord shall have the right to comply with and to satisfy its obligations under subsections (a) and (b) by means of any so-called blanket policy or policies of insurance covering this and other liability and locations of Landlord and its Affiliates, provided that such policy or policies by the terms thereof shall allocate to the Building and the liabilities to be insured under this Section an amount not less than the amount of insurance required to be carried pursuant to this Section, so that the proceeds from such insurance shall not be less than the amount of proceeds that would be available if Landlord were insured under a unitary policy. (d) Waiver of Subrogation. Landlord and Tenant shall each include in each of its property damage insurance policies, including Landlord's policies of rent insurance and Tenant's policies of business interruption insurance, if any, a waiver of the insurer's right of subrogation against the other party and the officers, directors, agents and employees of, and the partners in, the other party (and, in the case of Tenant's policies, against the Additional Insureds and their respective officers, directors, agents and employees), or, if such waiver at any time becomes unobtainable (i) an express agreement that such policy shall not be invalidated if the insured waives or has waived before the loss the right of recovery against any party responsible for an insured casualty, or (ii) any other form of permission for the release of such responsible party, provided such waiver, agreement or permission is obtainable under normal commercial 35 insurance practice at the time. If such waiver, agreement or permission is not, or ceases to be, obtainable without additional charge or at all, the insured party shall so notify the other party promptly after notice thereof. If the other party agrees in writing to pay the insurer's additional charge therefor, such waiver, agreement or permission shall (if obtainable) be included in the policy. Landlord and Tenant hereby acknowledge and agree that such waiver is obtainable under normal commercial insurance practice on the date of this Lease at no additional charge. (e) Tenant's Indemnification. Except for the willful or grossly negligent acts or omissions (where applicable law imposes a duty to act) of Tenant or its agents, employees or contractors, Landlord hereby agrees to indemnify and hold harmless Tenant and the officers, directors, agents and employees or Tenant, from and against any and all claims, losses, actions, damages, liabilities and expense (including reasonable attorneys' fees and disbursements) that (i) arise from or are in connection with the performance of Landlord's obligations under this Lease, or (ii) arise from or are in connection with any willful or negligent act or omission of Landlord or its agents, or (iii) result from any default, breach, violation or nonperformance of this Lease or any provision by Landlord, or (iv) arise from injury or death to individuals or damage to property sustained on or about the Common Areas, the Land or the Parking Facilities. Landlord shall, at its own cost and expense, upon notice thereof from Tenant, defend any and all actions, suits and proceedings which may be brought against Tenant, and the officers, directors, agents and employees of, and the partners in, Tenant or any of them, with respect to the foregoing or in which Tenant and the officers, directors, agents and employees of, and the partners in, Tenant or any of them, may be impleaded. Landlord shall pay, satisfy and discharge any and all final money Judgments which may be recovered against Tenant, and the officers, directors, agents and employees of, and the partners in Tenant, or any of them, in connection with the foregoing. For so long as Landlord is in compliance with the insurance requirements of this Section 11, the indemnity provided above shall be limited to the policy limits of such insurance, excluding only such deductibles as Landlord maintains. (f) Evidence of Insurance. Landlord shall provide to Tenant, at the times and in the manner required of Tenant under Section 11(d), comparable evidence of compliance with the terms of this Section 12. 13. Damage by Fire or Other Casualty. In the event of loss of, or damage to, the Leased Premises or the Building by fire or other casualty, the rights and obligations of Landlord and Tenant shall be as follows: 36 (a) Repair of Damage. If all or any part of the Leased Premises is damaged by fire or other casualty, Tenant shall give prompt notice thereof to Landlord. Landlord, upon receiving such notice, shall proceed promptly and with reasonable diligence, subject to Unavoidable Delays, to repair, or cause to be repaired, such damage, but not damage to Alterations or Tenant's Personal Property, in a manner reasonably designed to minimize interference with Tenant's occupancy (but with no obligation to employ labor at overtime or other premium pay rates). If all or any part of the Common Areas is damaged by fire or other casualty, Landlord shall proceed promptly and with reasonable diligence, subject to Unavoidable Delays, to repair, or cause to be repaired, such damage, in a manner designed to minimize interference with Tenant's occupancy (but with no obligation to employ labor at overtime or other premium pay rates). (b) Abatement of Basic Rent and Additional Charges. If all or any part of the Leased Premises is rendered untenantable by reason of damage caused by a fire or other casualty, whether to the Leased Premises or the Building, and the damaged part is not in fact be used by Tenant, the Basic Rent and Additional Charges shall be abated for the proportion of the Leased Premises rendered untenantable for the period between the date of the fire or other casualty and the date when the damage which Landlord is obligated to repair shall have been repaired or the date on which this Lease is terminated pursuant to subsection (c), whichever occurs first. However, if, before the date when all of the damage required to be repaired by Landlord shall have been repaired, any part of the Leased Premises so damaged shall be repaired to the condition required by subsection (e), then the amount by which the Basic Rent and Additional Charges shall be abated shall be equitably apportioned for the period beginning on the date of completion of such repair. If Tenant reoccupies a portion of the Leased Premises during the period of repair, the Basic Rent and Additional Charges allocable to such reoccupied portion, based upon the proportion which the reoccupied portion of the Leased Premises bears to the total area of the Leased Premises, shall be payable by Tenant from the date of such occupancy. If, by reason of some action or inaction on the part of Tenant or Tenant's Associates after the occurrence of an insured peril, Landlord or the Additional Insureds shall be unable to collect all of the insurance proceeds applicable to the damage or destruction of the Leased Premises or the Building caused by such insured peril, then, without prejudice to any other remedy which may be available to Landlord against Tenant, the abatement of rent provided for in this subsection shall not be effective to the extent of uncollectible insurance proceeds. For purposes of this Section, all or a part of the Leased Premises shall be deemed to be "untenantable" if, because of the fire or other casualty, Tenant is materially impaired in its use of all or 37 such part of the Leased Premises for the uses permitted by Section 6(a). (c) Termination of Lease by Landlord or Tenant. If as a result of fire or other casualty more than one-half (1/2) of the Building Rentable Area is rendered untenantable, Landlord within 60 days after the date of the fire or casualty may terminate this Lease by notice to Tenant, specifying a date, not less than 20 nor more than 40 days after the giving of the notice, on which the Term shall expire as fully and completely as if such date were the date herein originally fixed for the expiration of the Term. If the Leased Premises are damaged as a result of fire or other casualty and if Landlord reasonably determines that the damage to the Leased Premises (but not the damage to Alterations or Tenant's Personal Property) is so extensive that the damage cannot be substantially repaired within 90 days after the receipt of insurance proceeds but in no event more than 270 days after the date of the fire or other casualty (except for Unavoidable Delays), Landlord shall notify Tenant of that fact. Within 15 days after receipt of Landlord's notice, Tenant may terminate this Lease by notice to Landlord, specifying a date, not less than 20 nor more than 40 days after the giving of such notice, on which the Term shall expire as fully and completely as if such date were the date originally fixed for the expiration of the Term, except that Tenant shall not have the right to terminate this Lease if the fire or other casualty was caused by the willful or negligent act or omission of Tenant or Tenant's Associates. If either Landlord or Tenant terminates this Lease pursuant to this subsection, the Basic Rent and Additional Charges shall be apportioned as of the date of such termination. Any dispute between Landlord and Tenant concerning the time periods within which the Leased Premises can be repaired should be submitted to arbitration pursuant to Section 28. If neither Landlord nor Tenant so elects to terminate this Lease, then Landlord shall proceed to repair the damage to the Building and the damage to the Leased Premises (but not the damage to Alterations or Tenant's Personal Property, if any shall have occurred), and the Basic Rent and Additional Charges shall meanwhile be apportioned and abated all as provided in subsection (b). (d) Insurance Proceeds. The proceeds payable under all policies of property damage insurance maintained by Landlord on the Building shall belong to and be the property of Landlord, and Tenant shall not have any interest in such proceeds. Tenant agrees to look to its own policies of property damage insurance in the event of damage to Alterations or Tenant's Personal Property. (e) Limitation on Landlord's Duty to Repair. Landlord shall not be required to repair or replace Alterations or Tenant's Personal Property, but Landlord's only obligation under subsection (a) shall be to repair or replace the portions of the Building and 38 the Base Building Work to the condition necessary to enable Tenant, in accordance with accepted construction practices, to begin the performance of the repair or replacement of Tenant Work. Except as required by Section 12(e), Landlord shall not be obligated to make any payment to Tenant for damages or compensation for inconvenience, loss of business or annoyance arising from any damage to or repair or restoration of any portion of the Leased Premises or of the Building. (f) Inapplicability of Other Laws. The provisions of this Section shall be considered an express agreement governing any instance of damage or destruction of the Building or the Leased Premises by fire or other casualty, and any law now or hereafter in force providing for such a contingency in the absence of express agreement shall have no application. (g) Landlord Released from Liability. As long as Tenant's policies of property damage insurance include the waiver of subrogation or agreement or permission to release liability referred to in Section 12(d), Tenant hereby waives (and agrees to cause all other occupants of the Leased Premises to execute and deliver to Landlord instruments waiving) any right of recovery against Landlord, the Additional Insureds and any of their respective officers, directors, agents, employees, partners, contractors or invitees, for any loss or damage to Alterations or Tenant's Personal Property caused by fire or other insured peril. If at any time any of Tenant's policies shall not include a waiver of subrogation or agreement or permission or similar provisions, the waiver set forth in the preceding sentence shall, upon notice given by Tenant to Landlord, be of no further force or effect from and after the giving of such notice (or, if the insurer shall not grant a waiver for all of the required parties, the waiver shall be of no force or effect only with respect to the required parties not included in the waiver). If Tenant fails to obtain and maintain the policy of property damage insurance required by Section 11(b), Tenant hereby waives (and agrees to cause all occupants of the Leased Premises to execute and deliver to Landlord instruments waiving) any right of recovery against Landlord, the Additional Insureds and any of their respective officers, directors, agents, employees, partners, contractors and invitees for any loss or damage to Alterations or Tenant's Personal Property caused by fire or other perils of the type that would have been insured against by a policy of property damage insurance if Tenant had obtained the policy and the policy had been in effect on the date of the fire or other insured peril. (h) Tenant Released from Liability. As long as Landlord's policies of property damage insurance include the waiver of subrogation or agreement or permission to release liability referred to in Section 12(d), Landlord hereby waives any right of 39 recovery against Tenant, any other permitted occupant of the Leased Premises and any of their respective officers, directors, agents, employees, partners, contractors or invitees for any loss or damage to the Building caused by fire or other insured peril. If at any time any of Landlord's policies of property damage insurance shall not include such waiver of subrogation or agreement or permission or similar provisions, the waiver set forth in the foregoing sentence shall be of no further force or effect (or, if the insurer shall not grant waiver for all of the required parties, the waiver shall be of no force or effect only with respect to the required parties not included in the waiver). 14. Condemnation. (a) Effect of Taking. In the event of a Taking of the whole of the Leased Premises, this Lease shall terminate as of the date of such Taking. If only a part of the Leased Premises shall be so taken then, except as otherwise provided in this subsection, this Lease shall continue in force and effect, but from and after the date of the Taking the Basic Rent and Additional Charges shall be equitably reduced on the basis of the Rentable Area so taken. If a part of the Building shall be taken, and if either (i) the part of the Building so taken contains more than twenty-five percent (25%) of the Rentable Area immediately before such Taking, or (ii) in Landlord's reasonable opinion, it shall be impracticable to continue to operate the Building, then Landlord, at Landlord's option, may give to Tenant within 60 days after the date upon which Landlord shall have received notice of the Taking, a 30 days' notice of termination of this Lease. If a part of the Building shall be taken, and if either (i) the part of the Building so taken contains more than thirty-five percent (35%) of the Rentable Area immediately before such Taking, or (ii) by reason of such Taking all or substantially all of the Leased Premises becomes untenantable (within the meaning of Section 13(b) and Tenant does not, in fact, use all or substantially all of the Leased Premises for the uses permitted by Section 6(a), then Tenant, at Tenant's option, may give to Landlord within 60 days after the date upon which Tenant shall have received notice of such Taking, a 30 days' notice of termination of this Lease. If a 30 days' notice of termination is given by Landlord or Tenant, this Lease shall terminate upon the earlier of (x) the date on which title to the part of the Building taken vests in the condemning authority, or (y) the expiration of the 30-day period. If this Lease is terminated pursuant to the foregoing provisions of this subsection, then, to the extent permitted by applicable law and such Taking, Tenant shall have access to the Leased Premises in order to remove Tenant's Personal Property and any other property which Tenant is entitled to remove pursuant to this Lease during the period of 30 days from the date Tenant is permitted access therefor. If a Taking occurs which does not result in the termination of this Lease, Landlord shall repair, 40 alter and restore the remaining portions of the Leased Premises (but not Alterations) to their former condition to the extent that the same may be feasible. (b) Award. Landlord shall have the exclusive right to receive any and all awards made with respect to the Leased Premises, the Building and the Land accruing by reason of a Taking or by reason of anything lawfully done in pursuance of public or other authority. Tenant hereby releases and assigns to Landlord all of Tenant's rights to such awards and covenants to deliver such further assignments and assurances thereof as Landlord may from time to time request, hereby irrevocably designating and appointing Landlord as its attorney-in-fact coupled with an interest to execute and deliver in Tenant's name and behalf all such further assignments. Tenant shall not have the right to claim any award for the value of the Leasehold Estate, but Tenant shall have the right to make its own claim against the condemning authority for a separate award for the value of Alterations made by Tenant, at its expense, reduced by the amount (if any) of Tenant's Allowance (as defined in Exhibit B), and any of Tenant's Personal Property, for moving and relocation expenses and for business damages and/or consequential damages, as may be allowed by law which do not constitute part of the compensation for the Building or the Land, or both, and do not diminish the amount of the award to which Landlord would otherwise be entitled. 15. Assignment and Subletting. (a) Assignment and Subletting Permitted. So long as Tenant remains primarily liable for the obligations of Tenant under this Lease, Tenant may, subject to the terms and requirements of this Lease and subject to Landlord's approval, not to be unreasonably withheld or delayed, including the use restrictions in Section 6, assign its leasehold estate under this Lease and/or sublet all or part of the Leased Premises. Any rent collected by Tenant in connection with an assignment or a sublease, shall be and remain the property of Tenant, whether or not equal to, less than or in excess of the Basic Rent and Additional Charges payable hereunder, provided, however, that any true profits from rents collected by Tenant shall be shared between Tenant and Landlord on an equal basis. (b) Release of Tenant in Connection with an Assignment or Sublease. After the 5th year Tenant may request, and Landlord may grant to Tenant, a release from further liability under this Lease in conjunction with an assignment of the Lease to an entity whose net worth as determined by an independent certified public accountant equals or exceeds Tenant's net worth at the Lease Commencement Date. Landlord may request such information of Tenant 41 and the proposed assignee as is consistent with applicable Legal Requirements and customary practice. (c) Change of Corporate Control. If any assignee of Tenant is a corporation, any transfer of any of the corporation's issued and outstanding capital stock or any issuance of additional capital stock, as a result of which the majority of the issued and outstanding capital stock of the corporation is held by a Person or Persons who do not hold a majority of the issued and outstanding capital stock of the corporation on the date of the assignment of this Lease shall be deemed an assignment under this Section 15; provided, however, that this sentence shall not apply to a corporation if any of the outstanding voting stock of such corporation is registered under federal or state securities laws. If any assignee of Tenant is a partnership, any transfer of any interest in the partnership or any other change in the composition of the partnership which results in a change in the control of the partnership from the Person or Persons controlling the partnership on the date on which the partnership acquires the Leasehold Estate, shall be deemed an assignment under this Section 15. (d) Documentation. No permitted assignment or subletting shall be valid unless, within 10 days after the consummation thereof, Tenant shall deliver to Landlord (i) in the case of an assignment, (x) a duplicate original instrument of assignment in form reasonably satisfactory to Landlord, duly executed by Tenant, and (y) an instrument in form and substance reasonably satisfactory to Landlord, duly executed by the assignee, in which such assignee shall agree to observe and perform, and to be personally bound by, all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed, whether or not accruing before or after the date of such assignment and whether or not relating to matters arising before or after such assignment, or (ii) in the case of a subletting, a duplicate original counterpart of the sublease signed by Tenant and the subtenant. (e) Landlord's Right to Collect Rent. If the Leasehold Estate is assigned, whether or not in violation of the provisions of this Section, Landlord may collect rent from the assignee. If the Leased Premises or any part thereof are sublet to, or occupied or used by, any Person other than Tenant, whether or not in violation of this Section, Landlord, after an Event of Default has occurred and while such Event of Default is continuing, may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the amount collected to the Basic Rent and Additional Charges payable under this Lease, but neither any such assignment, subletting, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application shall be deemed to be a waiver of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, 42 subtenant, occupant or user as Tenant. The consent by Landlord to any assignment or subletting shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment or subletting. The listing of any name other than that of Tenant on any door of the Leased Premises or on any directory in the Building, or otherwise, shall not operate to vest in the Person so named any right or interest in this Lease or in the Leased Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Section, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord's will by notice to Tenant. Neither an assignment of the Leasehold Estate nor a subletting, occupancy or use of the Leased Premises or any part thereof by any Person other than Tenant, nor the collection of rent by Landlord from any Person other than Tenant as provided in this subsection, nor the application of any such rent as provided in this subsection shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed, except under the terms of subsection (b) above. 16. Default Provisions. (a) Events of Default. Each of the following events shall be deemed to be, and is referred to in this Lease as, an "Event of Default ":: (1) A default by Tenant in making any payment of Basic Rent on the day such payment is due and payable which continues for more than ten days after the due date subject to paragraph (b) below; (2) A default by Tenant in making any payment of Additional Charges on the day such payment is due and payable which continues for more than ten days after Landlord shall have given Tenant a written notice specifying such default: (3) Subject in all instances to Unavoidable Delays, the neglect or failure of Tenant to perform or observe any of the terms, covenants or conditions contained in this Lease on Tenant's part to be performed or observed (other than those referred to in paragraphs (1) and (2) above and (4) and (5) below) which is not remedied by Tenant (i) within 30 days after Landlord shall have given to Tenant notice specifying such neglect or failure, or (ii) in the case of any such neglect or failure which cannot with due diligence and in good faith be cured within 30 days, within such additional period, if any, as may be reasonably required to cure such default with due diligence and in good faith provided that Tenant commences the curing of the same within the 15-day period 43 (it being intended that, in connection with any such default which is not susceptible of being cured with due diligence and in good faith within 30 days, the time within which the Tenant is required to cure such default shall be extended for such additional period as may be necessary for the curing thereof with due diligence and in good faith); (4) The assignment, transfer, mortgaging or encumbering of this Lease or the subletting of the Leased Premises in a manner not permitted by Section 15: (5) The taking of this Lease or the Leased Premises, or any part thereof, upon execution or by other process of law directed against Tenant, or upon or subject to any attachment at the instance of any creditor of or claimant against Tenant, which execution or attachment shall not be discharged or disposed of within 60 days after the levy thereof; (6) The failure of Tenant to take possession of the Leased Premises on the Lease Commencement Date or within 45 days (increased by the number of days of delay caused by Tenant or by Tenant Work pursuant to Sections 8 and 9 of Exhibit B to this Lease) thereafter; or (7) Except during the last year of the Lease Term, the vacating or abandonment of the Leased Premises by Tenant; provided that Tenant shall not be deemed to have vacated or abandoned the Leased Premises (a) in connection with alterations or repairs, (b) as a result of Unavoidable Delays, (c) as a result of a condemnation or taking, (d) as a result of damage or destruction, and (e) in any case, for a period of nine (9) months after temporarily vacating the Leased Premises. (b) Landlord has no obligation to give Tenant notice of a Basic Rent payment default. Landlord shall, however, give Tenant notice of such default as long as (i) Tenant has not committed any previous defaults hereunder; and (ii) the Building is either owned by Landlord first named in this Lease or managed by The Evans Company or a related entity. Under such circumstances, Tenant shall have ten (10) days after Landlord has given Tenant a written notice specifying such default in which to make its payment of Basic Rent. This subsection 16(b) is not binding upon any creditors or lenders of Landlord. (c) Landlord's Rights upon Event of Default. Upon the occurrence of an Event of Default, Landlord shall have the right, at its election, then or at any time thereafter, either: (1) To give notice to Tenant that this Lease will terminate on a date to be specified in such notice, which date may 44 be five (5) days from the date of such notice or any day thereafter, and on the date specified in such notice Tenant's right to possession of the Leased Premises shall cease and this Lease shall thereupon be terminated, but Tenant shall remain liable as provided in subsection (d); or (2) Without demand or notice, to reenter and take possession of the Leased Premises, or any part thereof, and repossess the same as of Landlord's former estate and expel Tenant and those claiming through or under Tenant and remove the effects of both or either, either by summary proceedings, or by action at law or in equity, or by force (if necessary) or otherwise, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenant. If Landlord elects to reenter under paragraph (2), Landlord may terminate this Lease, or, from time to time, without terminating this Lease, may relet the Leased Premises, or any part thereof, as agent for Tenant for such term or terms and at such rental or rentals and upon such other terms and conditions as Landlord may deem advisable, with the right to make alterations and repairs to the Leased Premises. No such reentry or taking of possession of the Leased Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention is given to Tenant under paragraph (1) or unless the termination thereof is decreed by a court of competent jurisdiction. Tenant waives any right to the service of any notice of Landlord's intention to reenter provided for by any present or future law. Landlord shall make a good faith effort to mitigate damages by seeking to relet the Leased Premises. (d) Tenant's Liability for Damages. If Landlord terminates this Lease pursuant to subsection (b), Tenant shall remain liable (in addition to accrued liabilities) to the extent legally permissible for (i) the sum of (A) all Basic Rent , Additional Charges and additional rent provided for in this Lease until the date this Lease would have expired had such termination not occurred accelerated and due and payable as of the date of default, and (B) any and all reasonable expenses incurred by Landlord in reentering the Leased Premises, repossessing the same, making good any default of Tenant, painting, altering or dividing the Leased Premises, combining the same with any adjacent space for any new tenants, putting the same in proper repair, reletting the same (including any and all reasonable attorneys' fees and disbursements and reasonable brokerage fees incurred in so doing), and any and all expenses which Landlord may incur during the occupancy of any new tenant (other than expenses of a type that are Landlord's responsibility under the terms of this Lease); less (ii) the net proceeds of any reletting actually received by Landlord. Tenant 45 agrees to pay to Landlord the difference between items (i) and (ii) above with respect to each month during the Term, at the end of such month. Any suit brought by Landlord to enforce collection of such difference for any one month shall not prejudice Landlord's right to enforce the collection of any difference for any subsequent month. In addition to the foregoing, Tenant shall pay to Landlord, whether or not the Lease is terminated such sums as the court which has jurisdiction thereover may adjudge reasonable as attorneys' fees with respect to any successful legal proceeding or action instituted by Landlord to enforce the provisions of this Lease. Landlord shall have the right, at its sole option, to relet the whole or any part of the Leased Premises for the whole of the unexpired Term, or longer, or from time to time for shorter periods, for any rental then obtainable, giving such concessions of rent and making such special repairs, alterations, decorations and paintings for any new tenant as Landlord, in its sole and absolute discretion, may deem advisable. Tenant's liability under this subsection shall survive the institution of summary proceedings and the issuance of any warrant thereunder. Landlord shall be under no obligation to relet the Leased Premises. (e) Buy Out/Liquidated Damages. The following described "buy-out" right shall be available to Tenant, at any time upon 60 days prior written notice, and to Landlord, at any time after a termination of this Lease under Section 16(c). The amount payable shall be due from Tenant 90 days from the date of the written notice, should Tenant so choose, or at such time as Landlord specifies should it exercise the right. In either event, the amount payable by Tenant shall be liquidated and final damages in lieu of any further liability by Tenant under this Lease, and shall be an amount equal to the difference, discounted to the date of such demand at an annual rate of interest equal to the then-current yield on actively traded U.S. Treasury bonds with July - December, 2006 maturities, as published in the Federal Reserve Statistical Release for the week before the date of such termination or notice, between (i) the Basic Rent and Additional Charges, computed on the basis of the then-current annual rate of Basic Rent and Additional Charges and all fixed and determinable increases in Basic Rent, which would have been payable from the date of such demand to the date when this Lease would have expired, if it had not been terminated, and (ii) the then fair rental value of the Leased Premises for the same period (and pass-through of operating expenses, comparable to the terms hereof). Upon payment of such liquidated and agreed final damages, Tenant shall be released from all further liability under this Lease with respect to the period after the date of such demand or option. If, after the Event of Default giving rise to the termination of this Lease, but before presentation of proof of such liquidated damages, the Leased Premises, or any part thereof, shall be relet by Landlord for a term of one year or more, the amount of rent reserved and pass 46 through of operating expenses upon such reletting shall be deemed to be the fair rental value for the part of the Leased Premises so relet during the term of such reletting. (f) Rights and Remedies Cumulative. The rights and remedies herein conferred are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy that Landlord and Tenant may have, whether specifically granted herein, or presently or hereafter existing at law, in equity, or by statute. 17. Security Deposit. (a) Use and Application. Tenant hereby deposits with Landlord the Security Deposit, as security for the prompt, full and faithful performance by Tenant of each and every obligation of Tenant hereunder. If an Event of Default occurs, Landlord may (or if Landlord defaults hereunder, Tenant may) use, apply or retain the whole or any part of the Security Deposit for the payment of (i) any Basic Rent or Additional Charges which Tenant may not have paid or which may become due after the occurrence of such Event of Default (or Landlord default), (ii) any sum expended by Landlord on Tenant's behalf in accordance with the provisions of this Lease, or (iii) any sum which Landlord may expend or be required to expend by reason of Tenant's default, including any damages or a deficiency in the reletting of the Leased Premises as provided in Section 16. The use, application or retention of the Security Deposit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease or by law and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. If any portion of the Security Deposit is used, applied or retained by Landlord for the purposes set forth above, Tenant shall, within 10 days after a demand therefor is made by Landlord, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount provided, however, that if the Security Deposit is applied to Basic Rent as a result of a default by Landlord, Tenant is not obligated to restore the Security Deposit until Landlord cures its default. (b) Return of Security Deposit. Landlord shall keep the Security Deposit in an interest bearing account. If Tenant shall fully and faithfully comply with all of the provisions of this Lease, the Security Deposit, or any balance thereof, shall be returned to Tenant after the expiration of the Term, with interest. Tenant shall be responsible for all income taxes arising from the interest income. In the absence of evidence satisfactory to Landlord of any permitted assignment of the right to receive the Security Deposit, or the remaining balance thereof, Landlord may return the same to the original Tenant, regardless of one or more 47 assignments of the Leasehold Estate or the Security Deposit. In such event, upon the return of the Security Deposit (or balance thereof) to the original Tenant, Landlord shall be completely relieved from liability under this Section. (c) Transfer of Security Deposit. In the event of a transfer of Landlord's interest in the Leased Premises, Landlord shall transfer the Security Deposit to the transferee thereof. In such event, upon notice to Tenant of such transfer, Landlord shall be released from all liability or obligation for the return of the Security Deposit to Tenant, and Tenant agrees to look solely to such transferee for the return of the Security Deposit and the transferee shall be bound by all provisions of this Lease relating to the return of the Security Deposit. Tenant acknowledges that a Mortgagee shall not be liable for the return of the Security Deposit unless the Mortgagee actually receives the Security Deposit. (d) Restrictions on Encumbering. The Security Deposit shall not be mortgaged, pledged, assigned or encumbered in any manner whatsoever by Tenant. 18. Bankruptcy Termination Provision. At Landlord's election, this Lease shall automatically terminate and expire, without the performance of any act or the giving of any notice by Landlord, upon the occurrence of any of the following events: (1) Tenant's admitting in writing its inability to pay its debts generally as they become due, or (2) the commencement by Tenant of a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or (3) the entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Tenant in an involuntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days, or (4) Tenant's making an assignment of all or a substantial part of its property for the benefit of its creditors, or (5) Tenant's seeking or consenting to or acquiescing in the appointment of, or the taking of possession by, a receiver, trustee or custodian for all or a substantial part of its property, or (6) the entry of a court order without Tenant's consent, which order shall not be vacated, set aside or stayed within 60 days from the date of entry, appointing a receiver, trustee or custodian for all or a substantial part of its property. The provisions of this Section shall be construed with due recognition for the provisions of the federal bankruptcy laws, where applicable, but shall be interpreted in a manner which 48 results in a termination of this Lease in each and every instance, and to the fullest extent, that such termination is permitted under the federal bankruptcy laws, it being of prime importance to the Landlord to deal only with tenants who have, and continue to have, a strong degree of financial strength and financial stability. 19. Landlord May Perform Tenant's Obligations. If Tenant shall fail to keep or perform any of its obligations as provided in this Lease with respect to (a) maintenance of insurance as required hereunder, (a) repairs and maintenance of the Leased Premises, (c) compliance with Legal Requirements, or (d) the making of any other payment or performance of any other obligation, then Landlord may (but shall not be obligated to do so) upon the continuance of such failure on Tenant's part for 10 days after notice to Tenant, or without notice in the case of an emergency, and without waiving or releasing Tenant from any obligation, and as an additional but not exclusive remedy, make any such payment or perform any such obligation. All sums so paid by Landlord and all necessary incidental costs and expenses, including attorneys' fees and disbursements, incurred by Landlord in making such payment or performing such obligation, together with interest thereon from the date of payment at the Default Interest Rate, shall be deemed additional rent and shall be paid to Landlord on demand or, at Landlord's option, may be added to any installment of Basic Rent thereafter falling due, and if not so paid by Tenant, Landlord shall have the same rights and remedies as in the case of a default by Tenant in the payment of Basic Rent. 20. Subordination/Non-Disturbance. (a) Non-Disturbance. At least 30 days prior to the Lease Commencement Date, but in any event in conjunction with any closing on financing or refinancing for the Building, during the Term, and during any renewal periods, Landlord shall procure for the benefit of Tenant an agreement from each Mortgagee and ground lessor, confirming each Mortgagee's and ground lessor's agreement that Tenant's rights under this Lease and right to possession of the Leased Premises, shall not be disturbed by Mortgagee or ground lessor, whether in conjunction with the exercise of remedies under the Mortgage or the ground lease or otherwise, so long as Tenant is not in default hereunder, and further assuring to Tenant that it will not be named as a defendant in any action taken by the Mortgagee or the ground lessor against the Landlord. (a) Mortgages. This Lease and the Leasehold Estate shall have priority over, and be senior to, the lien of any Mortgage made by Landlord after the date of this Lease. However, if at any time or from time to time during the Term and any renewal periods, a Mortgagee or prospective Mortgagee requests that this Lease be sub- 49 ject and subordinate to its Mortgage, and if (x) the Mortgagee has provided to Tenant a non-disturbance agreement consistent with paragraph (a) above, and (y) Landlord consents to such subordination, this Lease and the Leasehold Estate shall be subject and subordinate to the lien of such Mortgage and to all renewals' modifications, replacements, consolidations and extensions thereof and to any and all advances made thereunder and interest thereon. Tenant agrees that, within 10 days after receipt of a request therefor from Landlord, it will, from time to time, execute and deliver any instrument or other document required by any such Mortgagee to subordinate this Lease and the Leasehold Estate to the lien of such Mortgage. If, at any time or from time to time during the Term, a Mortgagee of a Mortgage made prior to the date of this Lease shall request that this Lease have priority over the lien of such Mortgage, and if Landlord consents thereto, this Lease and the Leasehold Estate shall have priority over the lien of such Mortgage and all renewals, modifications, replacements, consolidations and extensions thereof and all advances made thereunder and interest thereon, and Tenant shall, within 10 days after receipt of a request therefor from Landlord, execute, acknowledge and deliver any and all documents and instruments confirming the priority of this Lease. In any event, however, if this Lease shall have priority over the lien of a first Mortgage, this Lease shall not become subject or subordinate to the lien of any subordinate Mortgage, and Tenant shall not execute any subordination documents or instruments for any subordinate Mortgagee, without the written consent of the first Mortgagee. (c) Ground Leases. Subject to the requirement of subsection (a) above this Lease and the Leasehold Estate shall be subject and subordinate to the Ground Lease between the City of Baltimore and Landlord and to each and every ground or underlying lease hereafter made of the Building or the Land, or both, and to all renewals, modifications, replacements and extensions thereof. Tenant agrees that, within 10 days after receipt of request therefor from Landlord, it will, from time to time, execute, acknowledge and deliver any instrument or other document required by any such lessor to subordinate this Lease and the Leasehold Estate to such ground or underlying lease. (d) Mortgagee's Right to Cure. If (i) the Building or the Land, or both, or Landlord's leasehold estate in the Building or the Land, or both, is at any time subject to a Mortgage, and (ii) this Lease, or the Basic Rent and Additional Charges payable under this Lease, is assigned to the Mortgagee, and (iii) the Tenant is given notice of such assignment, including the name and address of the assignee, then, in that event, Tenant shall not terminate this Lease or make any abatement in the Basic Rent or Additional Charges payable hereunder for any default on the part of the Landlord without first giving notice, in the manner provided elsewhere in 50 this Lease for the giving of notices, to such Mortgagee, specifying the default in reasonable detail, and affording such Mortgagee a reasonable opportunity to make performance, at its election, for and on behalf of the Landlord, except that (x) the Mortgagee shall have at least 30 days to cure the default; (y) if such default cannot be cured with reasonable diligence and continuity within 30 days, the Mortgagee shall have any additional time as may be reasonably necessary to cure the default with reasonable diligence and continuity; and (z) if the default cannot reasonably be cured without the Mortgagee having obtained possession of the Building, the Mortgagee shall have such additional time as may be reasonably necessary under the circumstances to obtain possession of the Building and thereafter to cure the default with reasonable diligence and continuity. If more than one Mortgagee makes a written request to Landlord to cure the default, the Mortgagee making the request whose lien is the most senior shall have such right. This provision shall not preclude prudent and reasonable action by Tenant in the event of an emergency. 21. Attornment. In the event of (a) a transfer of Landlord's interest in the Building, (b) the termination of any ground or underlying lease of the Building or the Land, or both, or (c) the purchase or other acquisition of the Building or Landlord's interest therein in a foreclosure sale or by deed in lieu of foreclosure under any Mortgage or pursuant to a power of sale contained in any Mortgage, then in any of such events Tenant shall, at the request of Landlord or Landlord's successor in interest, attorn to and recognize the transferee or purchaser of Landlord's interest or the lessor under the terminated ground or underlying lease, as the case may be, as Landlord under this Lease for the balance then remaining of the Term, and thereafter this Lease shall continue as a direct lease between such Person, as "Landlord," and Tenant, as "Tenant," except that such lessor, transferee or purchaser shall not be liable for any act or omission of Landlord before such lease termination or before such Person's succession to title, nor be subject to any offset, defense or counterclaim accruing before such lease termination or before such Person's succession to title, nor be bound by any payment of Basic Rent or Additional Charges before such lease termination or before such Person's succession to title for more than one month in advance. Tenant shall, within 10 days after request by Landlord or the transferee or purchaser of Landlord's interest or the lessor under the terminated ground or underlying lease, as the case may be, execute and deliver an instrument or instruments confirming the foregoing provisions of this Section. Tenant hereby waives the provisions of any present or future law or regulation which gives or purports to give Tenant any right to terminate or otherwise adversely affect this Lease, or the obligations of Tenant hereunder, upon or as a result of the 51 termination of any such ground or underlying lease or the completion of any such foreclosure and sale. 22. Quiet Enjoyment. Landlord covenants that Tenant, upon paying the Basic Rent and the Additional Charges provided for in this Lease, and upon performing and observing all of the terms, covenants, conditions and provisions of this Lease on Tenant's part to be kept, observed and performed, shall quietly hold, occupy and enjoy the Leased Premises during the Term without hindrance, ejection or molestation by Landlord or any Person lawfully claiming through or under Landlord. 23. Right of Access to Leased Premises. (a) Landlord's Right of Entry. Landlord and its agents, employees and contractors shall have the following rights in and about the Leased Premises: (i) to enter with prior written notice (except in an emergency) the Leased Premises at all reasonable times for the purpose of performing any obligation of Landlord under this Lease or exercising any right or remedy reserved to Landlord in this Lease, and if, in the case of an emergency, Tenant or its officers, partners, agents or employees shall not be personally present or shall not open and permit an entry into the Leased Premises at any time when such entry shall be necessary, forcibly to enter the Leased Premises; (ii) to exhibit the Leased Premises to others at reasonable times and for reasonable purposes after notifying Tenant and obtaining Tenant's consent, which shall not be unreasonably withheld. Tenant may accompany Landlord and restrict sensitive areas of the Leased Premises; (iii) to make such repairs, alterations, improvements or additions, or to perform such maintenance, including the maintenance of all plumbing, electrical and other mechanical facilities installed by Landlord, as Landlord may deem necessary or desirable to comply with its obligations hereunder; and (iv) to make such repairs, alterations or improvements, or to perform maintenance, of all HVAC, elevator, plumbing, electrical and other mechanical facilities installed by Landlord, as may be required from time to time by this Lease to be made or performed by Landlord. Landlord agrees to give reasonable advance notice before it exercises its rights under this subsection, except that Landlord may enter the Leased Premises without notice in the case of an emergency creating an imminent risk of injury to person or damage to property. (b) Landlord's Reservation of Rights in Adjacent Areas. Landlord reserves the right to use, including access thereto through the Leased Premises, all parts (except surfaces facing the interior of the Leased Premises) of all exterior walls, windows and doors bounding the Leased Premises (including exterior Building 52 walls, corridor walls, doors and entrances), all terraces and roofs adjacent to the Leased Premises, all space in or adjacent to the Leased Premises used for shafts, stacks, stairways, chutes, pipes, conduits, ducts, fan rooms, heating, air-conditioning, plumbing, electrical and other mechanical facilities installed by Landlord, service closets and other Building facilities. Nothing contained in this Section shall impose any obligation upon Landlord with respect to the operation, maintenance, alteration or repair of the Leased Premises or the Building, except as expressly provided in this Lease. Landlord agrees to repair and restore any damage to the Leased Premises resulting from the use of the rights reserved hereunder to Landlord. (c) Effect of Landlord's Entry. The exercise by Landlord or its agents, employees or contractors of any right reserved to Landlord in this Section shall not constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under this Lease, or impose any liability upon Landlord, or its agents, or upon any lessor under any ground or underlying lease, by reason of inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's business, or otherwise. Landlord agrees to exercise its rights under this Section in a manner reasonably designed to minimize interference with Tenant's normal business operations. Except when an emergency exists, Landlord agrees to exercise such rights during hours that are not normal business hours. (d) Tenant's Right of Access prior to the Lease Rental Commencement Date. Landlord agrees to provide reasonable access to the Leased Premises during construction of the Building in order to permit Tenant and its consultants to take measurements, plan improvements and otherwise prepare for the installation of Tenant's Personal Property and the Alterations. 24. Limitation on Landlord's Liability. (a) Accidents, etc. Except for damages resulting from the willful or grossly negligent act or omission (where applicable law or this Lease imposes a duty to act) of Landlord, its agents and employees, Landlord shall not be liable to Tenant or Tenant's Associates for any damage or loss to the property of Tenant or others located in or on the Leased Premises, the Building or the Land, or for any accident or injury, including death, to Persons or for any loss, compensation or claim, including claims for interruption or loss of Tenant's business, based on, arising out of or resulting from the necessity of maintaining or repairing any portion of the Building or the Parking Facilities; the use or operation (by Tenant or any other Person or Persons whatsoever) of any elevators, or heating, cooling, electrical, plumbing or other 53 equipment or apparatus; the termination of this Lease by reason of, or the occurrence of, damage or destruction of the Building or the Leased Premises; any fire, robbery, theft, and/or any other casualty; any unlawful breach of Landlord's security system for the Building; any leaking in any part or portion of the Leased Premises or the Building; any water, wind, rain, or snow that may leak into, or flow from, any part of the Leased Premises or the Building; any acts or omissions of any other occupant of any space in the Building; any water, gas, steam, fire, explosion, electricity or falling plaster; the bursting, stoppage or leakage of any pipes, sewer pipes, drains, conduits, appliances, sprinkler system, plumbing or other works; or any other similar cause. (b) Parking Facilities. Except for damages resulting from the willful or grossly negligent act or omission (where applicable law or this Lease imposes a duty to act) of Landlord, its agents and employees, Landlord shall not be liable for any damage or loss to any automobile (or any personal property therein) parked in or on the Parking Facilities or any other part of the Land, or for any injury sustained by any individual in, on or about the Parking Facilities or any other part of the Land. (c) Liability Limited to Landlord's Estate. Notwithstanding any provision to the contrary, Tenant agrees that (i) the liability of Landlord and Landlord's Partners for the satisfaction of any Claim shall be limited to Landlord's Estate, (ii) no other properties or assets of Landlord, Landlord's Partners or the officers, directors, agents or employees of Landlord or any of Landlord's Partners shall be subject to levy, execution or other enforcement procedures for the satisfaction of any Claim or any judgment based on a Claim, and (iii) if Tenant acquires a lien on or interest in any other properties or assets of Landlord, any of Landlord's Partners or any of the officers, directors, agents or employees of Landlord or any of Landlord's Partners by judgment or otherwise, Tenant shall promptly release such lien on or interest in such other properties and assets by executing, acknowledging and delivering to Landlord an instrument to that effect prepared by Landlord's attorneys. For purposes of this subsection, (x) the term "Landlord's Estate" shall mean the estate and property of Landlord in and to the Building and the Land , (y) the term "Claim" shall mean any claim which Tenant may have against Landlord arising out of or in connection with this Lease, the relationship of landlord and tenant or Tenant's use of the Leased Premises, and (z) the term "Landlord's Partners" shall mean, in the case of a Landlord which is a partnership, the Persons who are partners in such partnership. 54 25. Estoppel Certificates. Each party agrees from time to time, within 10 days after request therefor by the other party, to execute, acknowledge and deliver to the other party a statement in writing certifying to the other party, any Mortgagee, any assignee of a Mortgagee, or any purchaser, of the Building or the Land, or both, or any other Person designated by the other party, as of the date of such statement, (i) that Tenant is in possession of the Leased Premises; (ii) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect as modified and setting forth such modifications): (iii) whether or not there are then existing any set-offs or defenses known to Tenant against the enforcement of any right or remedy of Landlord, or any duty or obligation of Tenant, hereunder (and, if so, specifying the same in detail); (iv) the dates, if any, to which any Basic Rent or Additional Charges have been paid in advance: (v) that the certifying party has no knowledge of any uncured defaults on the part of Landlord under this Lease (or, if the certifying party has knowledge of any such uncured defaults, specifying the same in detail); (vi) that the certifying party has no knowledge of any event having occurred that authorizes the termination of this Lease by the other party (or, if the certifying party has such knowledge, specifying the same in detail); (vii) the amount of any Security Deposit held by Landlord; and (viii) any additional facts reasonably requested by the other party or any such Mortgagee, assignee of a Mortgagee or purchaser 26. Surrender of Leased Premises. (a) Possession of Leased Premises. Tenant shall, on or before the last day of the Term, except as otherwise expressly provided elsewhere in this Lease, remove all of Tenant's Personal Property and peaceably and quietly leave, surrender and yield up to the Landlord the Leased Premises, free of subtenancies, broom clean and in good order and condition except for reasonable wear and tear, damage by fire or other casualty, or conditions requiring repair by Landlord hereunder at Landlord's expense. (b) Inspection of Leased Premises. At the time Tenant surrenders the Leased Premises at the end of the Term, or within three days thereafter, Landlord and Tenant, or their respective agents, shall make an inspection of the Leased Premises and shall prepare and sign an inspection form to describe the condition of the Leased Premises at the time of surrender. 27. Holding Over. If Tenant shall hold over possession of the Leased Premises after the end of the Term, Tenant shall be deemed to be occupying 55 the Leased Premises as a Tenant from month to month, at one hundred fifty percent (150%) of the Basic Rent, adjusted to a monthly basis. Any hold over of possession of all or any part of the Leased Premises after the end of the Term shall be subject to all other conditions, provisions and obligations of this Lease, including the obligation to pay Additional Charges, insofar as the same are applicable, or as the same shall be adjusted, to a month to month tenancy. 28. Arbitration. In any case in which it is provided by the terms of this Lease that any matter shall be determined by arbitration, then such arbitration shall be in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association. The arbitration proceeding shall be conducted in Baltimore City, Maryland, by one arbitrator selected in accordance with the Commercial Arbitration Rules. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All direct and reasonable costs of the arbitration proceeding, including compensation of the arbitrator but excluding any compensation paid to counsel, agents, employees, and witnesses of either party, shall be borne equally by the parties or as the arbitrator shall determine. 29. Parking. Tenant shall be guaranteed parking within the Parking Facilities for 150 cars for the Term. (a) All Parking Facilities shall either be paved, striped and fenced surface lots, that comply with all applicable Legal Requirements and are consistent with the Security Plan described on Exhibit G, or are contained within structured deck or garage parking. If the Parking Facilities are on surface lots, Tenant's spaces shall be consolidated (as opposed to dispersed) in a cohesive grouping, and marked so as to minimize the chance of usage by unauthorized parkers. Tenant may, at Tenant's expense require Landlord to designate with customary signage the restriction of a portion of such spaces to "Sylvan Visitor Parking Only" or similar wording. (b) Attached as Exhibit I is a plat showing the Inner Harbor East subdivision, and identifying the location of Parcels B, C and P. Tenant's parking area shall initially be located on an undeveloped portion of Parcel P in closest proximity to the Building. Landlord has the authority to provide parking on this parcel. Tenant's parking area shall be designated as reserved for the use of Tenant's employees and visitors. Tenant shall be responsible for assuring that only authorized persons park in 56 Tenant's parking area. As Parcel P is developed, Landlord shall offer Tenant the option of utilizing structured parking on Parcels B, C or P, where available, at structured parking rates, as set forth below, or moving its parking area to surface lots on undeveloped portions of Parcels B or C that meet the requirements of paragraph (a) above. No parking spaces shall be relocated until substitute space, meeting the standards of paragraph (a) above, have been completed and are available for immediate use. (c) In addition to the parking spaces on Parcels B, C or P described above, Tenant shall have the option of renting, at the structured space rates described below, up to 25 spaces within the structured parking to be constructed on Parcels R and Q, some of which may be designated for "Sylvan Visitor Parking Only" or similar wording. (d) The rates to be paid by Tenant for parking during the Term shall be as follows: (i) During the first five years of the Lease, Tenant shall pay the following Parking Fees for surface parking:
Cost Per Estimated* Lease Year Space/Day Annual Cost ---------- --------- ----------- 1 Free $ 0 2 $0.25 $ 9,375 3 $0.50 $18,750 4 $0.75 $28,125 5 $1.00 $37,500
*Assumes all 150 spaces are used 5 days per week, 50 weeks per year. (ii) During the first five years of the Lease, Tenant shall pay the following Parking Fees for structured parking:
Market Cap For Structured Lease Year Space/Day ---------- --------- 1 $5.00 2 $5.15 3 $5.30 4 $5.46 5 $5.63
(iii) For Lease Years 6 through 10, Tenant shall be provided with discounted parking as follows: 57 150 spaces shall be offered to Tenant at a rate equal to 75% of the current market rate but in no event shall the cost to Tenant exceed the following rates. In the event the parties are unable to mutually agree on the market rate, then same shall be determined by using the methodology set forth in Section 35(d) hereof.
Market Cap Market Cap for Surface for Structured Lease Year Space/Day Space/Day ---------- --------- --------- 6 $2.90 $5.80 7 $2.99 $5.97 8 $3.07 $6.15 9 $3.17 $6.33 10 $3.26 $6.52
(e) Tenant agrees to use the Parking Facilities for the parking of passenger automobiles and vans and for no other purposes. (f) If Tenant rents more space in the Building or on the Inner Harbor East site, Tenant shall be offered a proportionate increase in the number of parking spaces, to the extent they are available, at market rates. (g) Parking rates during any renewal periods shall be provided at market rates. 30. Transfer of Landlord's Interest. If the original Landlord named in this Lease, or any successor to the original Landlord's interest in the Building, conveys or otherwise disposes of its interest in the Land and/or the Building, then upon such conveyance or other disposition all liabilities and obligations on the part of the original Landlord, or such successor Landlord, as Landlord under this Lease, which accrue after such conveyance or disposition shall cease and terminate and each successor Landlord shall, without further agreement, be bound by Landlord's covenants and obligations under this Lease, but only during the period of such successor Landlord's ownership of the Building. A copy of the recorded deed conveying the interest in the Building shall be satisfactory evidence of a successor Landlord's interest. 31. Leasing Commissions. Landlord and Tenant each represent and warrant to the other that, except for the Leasing Broker, neither of them has employed or dealt with any broker or finder in carrying on the negotiations 58 relative to this Lease. Landlord and Tenant shall each indemnify and hold harmless the other from and against any claim or claims for brokerage or other commission arising from or out of any breach of the foregoing representation and warranty. Landlord recognizes that the Leasing Broker and the Cooperating Broker are entitled to the payment of a commission for services rendered in the negotiation and obtaining of this Lease, and Landlord has agreed to pay such commission pursuant to a separate agreement, a copy of which is attached as Exhibit J. 32. Recordation. Tenant shall not record this Lease without the written consent of Landlord. Upon Landlord's request or with Landlord's written consent, the parties agree to execute a short form of this Lease for recording purposes, containing such items as Landlord believes appropriate or desirable, the expense thereof to be borne by Landlord. If such a short form of this Lease is recorded, upon the termination of this Lease, Tenant shall execute, acknowledge, and deliver to Landlord all right, title, and interest of Tenant in and to the Premises arising from this Lease or otherwise. 33. Commercial Purposes. The parties stipulate that the Premises is being leased exclusively for business, commercial, manufacturing, mercantile, or industrial purposes within the meaning of Section 8-110(a) of the Real Property Article of the Annotated Code of Maryland, and that the provisions of Section 8-110(b) of such Article (or any future statute) pertaining to the redemption of reversionary interests under leases shall be inapplicable. 34. General Provisions. (a) Binding Effect. The terms contained in this Lease shall be binding upon, and shall inure to the benefit of, the parties hereto and, subject to the provisions of Section 15, each of their respective legal representatives, successors and assigns. (b) Governing Law. It is the intention of the parties hereto that this Lease shall be construed and enforced in accordance with the laws of the jurisdiction in which the Building is located. (c) Waivers. No failure by either party to insist upon the strict performance of any term of this Lease or to exercise any right or remedy consequent upon a breach thereof, and no acceptance by Landlord of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach or of any such term. No term of this Lease to be kept, observed or performed by Landlord or by Tenant, and no breach thereof, shall be waived, 59 altered or modified except by a written instrument executed by Landlord or by Tenant, as the case may be. No waiver of any breach shall affect or alter this Lease, but each and every term of this Lease shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. (d) Notices. Every notice, request, consent, approval or other communication (hereafter in this subsection collectively referred to as "notices" and singly referred to as a "notice") which Landlord or Tenant is required or permitted to give to the other pursuant to this Lease shall be in writing and shall be delivered personally or by overnight courier service or shall be sent by certified or registered mail, return receipt requested, first-class postage prepaid, if to Landlord, at Landlord's Notice Address, or if to Tenant, at Tenant's Notice Address, or at any other address designated by either party by notice to the other party pursuant to this subsection. Any notice delivered to a party's designated address by (a) personal delivery, (b) recognized overnight national courier service, or (c) registered or certified mail, return receipt requested, shall be deemed to have been received by such party at the time the notice is delivered to such party's designated address. Confirmation by the courier delivering any notice given pursuant to this subsection shall be conclusive evidence of receipt of such notice. Landlord and Tenant each agrees that it will not refuse or reject delivery of any notice given hereunder, that it will acknowledge, in writing, receipt of the same upon request by the other party and that any notice rejected or refused by it shall be deemed for all purposes of this Lease to have been received by the rejecting party on the date so refused or rejected, as conclusively established by the records of the U.S. Postal Service or the courier service. Any notice required to be given within a stated period of time which is sent by certified or registered mail shall be considered timely if postmarked before midnight of the last day of such period. (e) Entire Agreement. This Lease contains the final and entire agreement between said parties, and they shall not be bound by any terms, statements, conditions or representations, oral or written, express or implied, not contained in this Lease. However, the terms of this Lease shall be modified, if so required, for the purpose of complying with or fulfilling the requirements of any Mortgagee secured by a first Mortgage that may now be or hereafter become a lien on the Building, provided, however, that such modification shall not be in substantial derogation or diminution of any of the rights of the parties hereunder, nor increase any of the obligations or liabilities of the parties hereunder. (f) Jury Trial. Landlord and Tenant each hereby waives all right to trial by jury in any claim, action, proceeding or counterclaim by either Landlord or Tenant against the other on any 60 matters arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant and/or Tenant's use or occupancy of the Leased Premises. (g) Venue. Tenant hereby waives any objection to the venue of any action filed by Landlord against Tenant in any state or federal court in the jurisdiction in which the Building is located, and Tenant further waives any right, claim or power, under the doctrine of forum non conveniens or otherwise, to transfer any such action filed by Landlord to any other court. (h) Authority. If Tenant is a corporation, concurrently with the signing of this Lease, Tenant shall furnish to Landlord certified copies of the resolutions of its Board of Directors (or of the executive committee of its Board of Directors) authorizing Tenant to enter into this Lease; and it shall furnish to Landlord evidence (reasonably satisfactory to Landlord and its counsel) that Tenant is a duly organized corporation in good standing under the laws of the jurisdiction of its incorporation, is qualified to do business in good standing in the jurisdiction in which the Building is located, has the power and authority to enter into this Lease, and that all corporate action requisite to authorize Tenant to enter into this Lease has been duly taken. Landlord shall provide to Tenant similar evidence of Landlord's authority to execute, deliver and perform in accordance with this Lease, and shall further deliver to Tenant, prior to the full execution of this Lease, a copy of Landlord's title insurance policy evidencing the ownership of the Land and the liens, encumbrances and easements to which the Land is subject. (i) Time of the Essence. Time is of the essence in the performance of all Tenant's obligations under this Lease. (j) Invalidity and Reduction of Charges. If any provision of this Lease shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected thereby and the remainder of this Lease shall not be affected by such holding and shall be fully valid and enforceable. In the event any late charge, interest rate or other payment provided herein exceeds the maximum applicable charge legally allowed, such late charge, interest rate or other payment shall be reduced to the maximum legal charge, rate or amount. (k) Captions. The captions in this Lease are for convenience only and shall not affect the interpretation of the provisions hereof. 61 (l) No Partnership. This Lease is not intended to create a partnership or joint venture between Landlord and Tenant in the conduct of their respective businesses. (m) Counterparts. This Lease may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. (n) Authority. If Tenant is a corporation, partnership or other legal entity, the individual who executes and delivers this Lease on behalf of Tenant represents and warrants to Landlord that he or she is duly authorized to do so. (o) No Offer. The submission of an unsigned counterpart of this Lease to Tenant shall not constitute an offer or option to lease the Leased Premises. This Lease shall become effective and binding only upon the execution and delivery by Landlord and Tenant. (p) Survival. Tenant's obligations under Sections 3(b), 3(e), 3(g), 6(d), 6(g), 9(d), 9(e), 9(f), 9(g), 11(c), 11(e), 14(b), 15(d), 16(c), 24(c) and 26 and Landlord's obligations under Sections 6(g) and 12(e) shall survive the expiration of the Term or the earlier termination of this Lease. Nothing herein shall be construed to limit Tenant's right to collect any amounts owed to Tenant under Sections 2A and 39(a) following the expiration of the Lease or the earlier termination of this Lease. 35. Options to Extend Term. (a) Renewal Options. Tenant shall have the option to renew the Term provided in Section l(b) (the "Initial Term") for two additional periods of five (5) years each (each of such additional periods being hereinafter referred to as a "Renewal Period"). Each renewal option shall be exercisable by Tenant by giving notice of the exercise of such renewal option to Landlord at least 365 days before the expiration of the Initial Term, in the case of the first renewal option, or at least 365 days before the expiration of the first Renewal Period, in the case of the second renewal option, except that if the Rent per Square Foot for the first Lease Year in a Renewal Period has not been determined by the last day on which the renewal option for such Renewal Period must be exercised in accordance with the procedure set forth in subsection (d), the period of time within which the Tenant may exercise the renewal option for such Renewal Period shall be extended until 30 days after the determination of the Rent per Square Foot for the first Lease Year in such Renewal Period. Time shall be of the essence in connection with Tenant's exercise of the renewal options. Tenant may not exercise the renewal option for either Renewal Period unless the Rent per Square Foot for such 62 Renewal Period has previously been determined by agreement between Landlord and Tenant or by appraisal in accordance with the procedure set forth in subsection (d). Tenant may not exercise the renewal option for the second Renewal Period unless Tenant has previously exercised the renewal option for the first Renewal Period in accordance with the provisions of this subsection. Tenant may not exercise the renewal option for either Renewal Period if an Event of Default has occurred and is continuing. If (i) the last day on which Tenant has the right to exercise a renewal option (the "Last Exercise Date"), occurs less than 365 days before the expiration of the Initial Term, in the case of the first renewal option, or less than 365 days before the expiration of the first Renewal Period, in the case of the second renewal option, and (ii) Tenant does not exercise the renewal option, the Term shall be extended until the last day of the month in which the 365th day after the Last Exercise Date occurs; unless prior to the Last Exercise Date, Tenant advises Landlord that it will not exercise its applicable renewal option. For purposes of determining the Basic Rent payable during the extension provided by the preceding sentence, the Rent per Square Foot shall be 95% of the fair rental value of the Leased Premises as actually determined by the procedure described in subsection (d) with respect to the Renewal Period for which Tenant did not exercise its renewal option. If Tenant timely exercises the options to renew this Lease in accordance with the provisions of this Section, then the Term shall be extended accordingly. Except as otherwise expressly provided in this Section, each Renewal Period shall be upon the same terms, covenants and conditions set forth in this Lease with respect to the Initial Term and Tenant's obligations to pay Tenant's Proportionate Share of Operating Expenses pursuant to Section 3(b) shall continue without interruption during each Renewal Period and the extension provided for in the seventh sentence, except that there shall be no renewal options after the second Renewal Period. All references in this Lease to the "Term" shall include each Renewal Period for which Tenant shall have effectively exercised its renewal option. (b) Rent Per Square Foot During Renewal Periods. (1) First Lease Year. If Tenant exercises the renewal option provided by subsection (a) to extend the Initial Term for a Renewal Period, the Rent per Square Foot for the first Lease Year in the Renewal Period shall be an amount equal to 95% of the fair rental value (per square foot) of the Leased Premises as of the first day of the Renewal Period as determined by mutual agreement between Landlord and Tenant or by appraisal by one or more commercial real estate brokers in the manner provided in subsection (d). 63 (2) Balance of First Renewal Period. For each Lease Year (or part of a Lease Year) thereafter during the Renewal Period, the Rent per Square Foot shall be an amount equal to 102.15% of the Rent per Square Foot for the immediately preceding Lease Year. (c) [Omitted]. (d) Method of Determining Rent per Square Foot. If Tenant desires to exercise the renewal option provided by subsection (a) to extend the Initial Term for a Renewal Period, and if Landlord and Tenant are unable mutually to agree on the Rent per Square Foot for the first Lease Year in such Renewal Period at least 420 days before the end of the last Lease Year in the Initial Term, in the case of the first renewal option, or at least 420 days before the end of the last Lease Year in the first Renewal Period, in the case of the second renewal option, Tenant shall notify Landlord of its desire to determine the Rent per Square Foot by appraisal pursuant to this subsection not more than 450 days and not less than 420 days before the end of the last Lease Year in the Initial Term or the last Lease Year in the first Renewal Period, as the case may be, and in such notice Tenant shall designate the broker appointed by it. The giving of such notice shall not constitute an exercise of the option by Tenant. Within 20 days thereafter, Landlord shall, by notice to Tenant, designate a second broker. If Landlord does not so designate a second broker within the 20-day period, the first broker appointed by Tenant shall proceed to make his valuation, in which case the fair rental value of the Leased Premises for the first Lease Year in the Renewal Period shall be the amount determined by the first broker. Each broker shall make an independent determination of the fair rental value of the Leased Premises for the first Lease Year in the applicable Renewal Period. If the two brokers so appointed agree on the fair rental value of the Leased Premises within 15 days after the appointment of the second broker, the fair rental value of the Leased Premises for the first Lease Year in the applicable Renewal Period shall be the amount determined by them. If the two brokers so appointed do not agree on the fair rental value of the Leased Premises within 15 days after the appointment of the second broker, but if the difference between the fair rental value determined by each broker is not more than $1.00 per square foot, the fair rental value of the Leased Premises for the first Lease Year in the applicable Renewal Period shall be an amount equal to the quotient obtained by dividing the sum of the fair rental value determined by each broker by two. If the two brokers so appointed do not agree on the fair rental value of the Leased Premises, and if the difference between the fair rental value determined by each broker is more than $1.00 per square foot, the two brokers shall jointly appoint a third broker. If the two brokers so appointed shall be unable, within 15 days after the appointment of the second broker, either (i) to 64 agree on the fair rental value of the Leased Premises (or to disagree on such value with a difference of $1.00 or less per square foot) or (ii) to agree on the appointment of a third broker, they shall give written notice of such failure to agree to the parties, and, if the parties fail to agree upon the selection of a third broker within 10 days after the brokers appointed by the parties give such notice, then within 10 days thereafter either of the parties upon notice to the other party may request such appointment by the then President of the Baltimore City Board of Realtors (or any organization successor thereto), or in his failure to act, may apply for such appointment to the Circuit Court for Baltimore City, Maryland. If a third broker is appointed, he shall make his valuation within 15 days after his appointment and the fair rental value of the Leased Premises for the first Lease Year in the applicable Renewal Period shall be an amount equal to the quotient obtained by dividing the sum of the fair rental values determined by the two brokers who were closest to each other in amount, by two. (e) Qualifications of Brokers and Method of Valuation. Each broker appointed pursuant to subsection (d) shall be an individual of recognized competence who has had a minimum of 10 years' experience in the leasing of commercial office space in the metropolitan Baltimore, Maryland area. All valuations of the fair rental value of the Leased Premises shall be in writing and shall be expressed in terms of an annual rent per square foot of Rentable Area. Each broker shall determine the fair rental value of the Leased Premises, as a whole, as of the first day of the first Lease Year in each Renewal Period on the basis of all relevant factors affecting fair rental value, including the actual Operating Expenses for the calendar year ending during the Lease Year immediately preceding the Renewal Period. The party appointing each broker shall be obligated, promptly after receipt of the valuation report prepared by the broker appointed by such party, to deliver a copy of such valuation report to the other party in the manner provided elsewhere in this Lease for the giving of notices. If a third broker is appointed, the third broker shall be directed, at the time of his appointment, to deliver copies of his valuation report, promptly after its completion, to Landlord and Tenant in the manner provided elsewhere in this Lease for the giving of notices. (f) Expenses of Brokers. The expenses of each of the first two brokers appointed pursuant to subsection (d) shall be borne by the party appointing such broker. The expenses of the third broker appointed pursuant to subsection (d) shall be paid one-half by Landlord and one-half by Tenant. Notwithstanding the foregoing provisions, if Tenant gives a notice to Landlord pursuant to subsection (d) to determine the fair rental value of the Leased Premises for a Renewal Period by appraisal, and if, after the fair 65 rental value of the Leased Premises for the first Lease Year in such Renewal Period has been determined by appraisal, Tenant does not exercise its option to extend the Term for such Renewal Period within the time required by subsection (a), Tenant shall reimburse Landlord, on demand, for all expenses of Landlord's appraisal and the third appraisal, if any. 36. Expansion Options. (a) During the six month period following the date of this Lease, Tenant shall have the option of leasing additional space in the Building under the same terms and conditions, including Basic Rent, as are set forth in this Lease. In addition, during such six month period, as to any unleased space and until such space in the Building is initially leased, as Landlord receives an offer or proposal to rent space in the Building which Landlord wishes to accept, Landlord shall notify Tenant and Tenant shall have five (5) business days to notify Landlord in writing that it wishes to lease the space under the same terms and conditions including Basic Rent as are set forth in this Lease. (b) After the end of the six month period following the date of this Lease, as to any unleased space and until such space in the Building is initially leased, as Landlord receives an offer or proposal to rent space in the Building which Landlord wishes to accept, Landlord shall notify Tenant and Tenant shall have five (5) business days to notify Landlord in writing that it wishes to lease the space at fair rental value pursuant to Section 35. All concessions relating to tenant improvements shall be at market rates. (c) If Tenant has given Landlord twelve (12) month's prior written notice of its intent to lease additional space in the Building, Tenant shall have the option of renting an additional 5,000 square feet in the Building after the third Lease Year commencing upon the termination of the initial short term leases entered into by Landlord, if any, but in no event later than twelve (12) months after the end of the third Lease Year. If Tenant exercises its option to rent the additional 5,000 contiguous square feet and if Tenant has given Landlord twelve (12) months prior written notice at the end of the fourth Lease Year, Tenant shall have the option to lease an additional 10,000 contiguous square feet after the fifth Lease Year upon the termination of the initial short term leases entered into by Landlord, if any, but in no event later than twelve (12) months after the end of the fifth Lease Year. The Basic Rent for any additional space in the Building leased by Tenant shall be an amount equal to fair rental value as determined pursuant to Section 35 and all concessions relating to Tenant improvements shall be at market rates. All other terms and conditions of this Lease shall apply. If Tenant exercises its 66 option to rent additional space, the space shall be made available to Tenant at the termination of any pre-existing short term leases entered into by Landlord for the space. 37. Roof Options. Tenant shall have an ongoing right of first negotiation for space on the Roof as long as it is available. Tenant may rent space on the roof of the Building for uses approved by Landlord in advance at market rates. Notwithstanding the foregoing sentences, upon Tenant's written request, Landlord shall make available to Tenant, without any rental or other charge, except as provided below, an area on the Roof measuring approximately twenty (20) feet by twenty (20) feet, together with an easement thereto, for the purposes of the installation, operation and maintenance of a receiving satellite dish and communications equipment in such location as may be reasonably required by Tenant. The size and type of such satellite dish and equipment shall be at the sole discretion of Tenant subject only to applicable governmental regulations. The installation and operation of the satellite dish and equipment shall be at the sole cost and expense of Tenant and Tenant shall promptly repair any damage to the Roof resulting from the installation and operation of such satellite dish and equipment. Tenant shall also pay reasonable administrative expenses incurred by Landlord, if any, arising out of or in connection with the installation and operation of such satellite dish and equipment. If as a direct cause of Tenant's operation of such satellite dish and equipment, Landlord is unable to lease all or any part of the remainder of the Roof to prospective tenants, then Tenant shall be obligated to pay rent on that portion of the Roof it occupies at market rates. Landlord further agrees that it will not lease any other portion of the Roof to any tenant or permit any tenant to use the Roof in a manner which will materially and adversely affect Tenant's use of the Roof for the purposes intended hereby. Tenant may terminate its use of the Roof at any time during the Term, or any renewals, upon written notice to Landlord. Following such notice, Tenant shall remove the satellite dish and equipment and promptly repair any damage to the Roof resulting from such removal. 38. Security Plan. Upon the Lease Commencement Date, Landlord shall implement a security plan for the Building and Parking Facilities that includes the items listed on Exhibit G (the "Security Plan"). The Security Plan shall not be materially revised by Landlord without obtaining the prior written consent of the Tenant, which shall not be unreasonably withheld. 67 39. Tenant's Allowance. (a) Landlord shall give Tenant an allowance to cover the cost of Tenant's Work in an amount equal to the product obtained by multiplying $15.00 by the Rentable Area, or a total allowance of 8750,000 ("Tenant's Regular Allowance"). (b) Landlord shall give Tenant an additional allowance ("Tenant's Special Allowance") in an amount equal to $350,000 which may be used to reimburse Tenant for any direct costs paid or incurred by Tenant in designing, preparing and completing the Leased Premises including, without limitation, the purchase of furniture and equipment. Tenant's Regular Allowance and Tenant's Special Allowance are collectively referred to herein as "Tenant's Allowance. " Tenant shall not be entitled to receive any part of the Tenant's Allowance which is not used. (c) Tenant shall have the right, by written request given to Landlord at any time or from time to time within ninety (90) days after completion of Tenant's Work, to require Landlord to disburse to Tenant, by check, Tenant's Allowance, as needed by Tenant to pay for the costs and expenses of the type referred to in this subsection. Tenant agrees to furnish to Landlord copies of bills and invoices supporting each request for funds pursuant to this subsection at the time such request is made. Landlord shall pay the amount requested by Tenant in writing, on the 15th day of the month after the month in which Landlord receives Tenant's written request, except that if Landlord receives Tenant's written request on or after the 25th day of a month, Landlord shall not be required to make the payment to Tenant until the 15th day of the second succeeding month. (d) During each of the first ten Lease Years Tenant shall pay as Additional Rent, ten percent (10%) of the amount paid by Landlord to Tenant as Tenant's Special Allowance above plus interest at the rate of twelve percent (12%). Such sum shall be paid in equal monthly installments, in advance, commencing on the Lease Commencement Date, and continuing thereafter on the first day of each and every month thereafter for a period of one hundred and twenty (120) months. 40. City Approvals. Both parties acknowledge that Landlord has not obtained all Baltimore City approvals relating to the execution of the Ground Lease referenced in Section 20(c) herein. In the event such approvals are not obtained by February 29, 1996, this Lease shall be null and void. Landlord shall diligently pursue receipt of the appropriate City approvals. 41. Tenant's Right to Terminate. In the event Landlord has not completed construction of the Building for whatever reason and 68 regardless of force majeure by April 1, 1997, Tenant shall have the right, at its discretion, to terminate this Lease Agreement upon written notice to Landlord. IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be signed by their duly authorized partners or officers as of the day and year first above written. Witness: Landlord Harbor East Parcel G - Office, LLC By: Presidential Entertainment Associates, LLC, Member By: Paterakis/Tsakalos Family Partnership, LLP, Member /s/ Jeri Zlatkowski By: /s/ William Patarakis (SEAL) - ------------------- --------------------------------- Name: William Pararakis Partner /s/ Jeri Zlatkowski By: /s/ Nicholas Tsakalos (SEAL) - ------------------- --------------------------------- Name: Nicholas Tsakalos Partner By: Paterakis/Tsakalos Family Partnership, LLP, Member /s/ Jeri Zlatkowski By: /s/ William Patarakis (SEAL) - ------------------- --------------------------------- Name: William Pararakis Partner /s/ Jeri Zlatkowski By: /s/ Nicholas Tsakalos (SEAL) - ------------------- --------------------------------- Name: Nicholas Tsakalos Partner 69 Witness: Tenant Sylvan Learning Systems, Inc. /s/ Illegible By: /s/ Douglas L. Becher - ------------------- --------------------------------- Name: Douglas L. Becher Title: President The undersigned joins herein to acknowledge that it will make Parcels P, B and C available to Landlord to satisfy the surface parking requirements described in Section 29(b) hereof. Harbor East Limited Partnership By: Paterakis/Tsakalos Family Partnership LLP By: /s/ Nicholas Tsakalos (SEAL) --------------------------------- Name: Nicholas Tsakalos By: /s/ William Patarakis (SEAL) --------------------------------- Name: William Pararakis 70 EXHIBIT A FLOOR PLAN LEVELS 3 & 4 INNER HARBOR EAST BALTIMORE, MARYLAND PARCEL G EXHIBIT A FLOOR PLAN LEVEL 5 INNER HARBOR EAST BALTIMORE, MARYLAND PARCEL G EXHIBIT B DESIGN AND CONSTRUCTION AGREEMENT THIS DESIGN AND CONSTRUCTION AGREEMENT (this "Agreement") is attached to and made a part of that certain Lease Agreement dated August _, 1995 (the "Lease") by and between Inner Harbor East Parcel G - Office LLC ("Landlord") and Sylvan Learning Systems, Inc. ARTICLE 1 GENERAL 1.1 Purpose. This Agreement sets forth the agreement of the parties for the design and construction of an office building and other improvements (the "Project") on the site located on Lancaster Street, Baltimore, Maryland, and more particularly described in Exhibit F to the Lease (the "Project Site"). The Project will be comprised of the preparation and improvement of the Project Site and the construction of the Base Building (hereinafter defined), for which Landlord shall be responsible for the design and construction as more particularly set forth herein, and the Tenant Work, for which Tenant shall be responsible for the design and construction as more particularly set forth herein. 1.2 Scope of Work. The scope of work to be performed pursuant to this Agreement includes the development and preparation of Construction Documents (as hereinafter defined) for the Project and the performance of all work thereunder and reasonably inferable therefrom in order to complete the Project as a fully-equipped, fully-functioning, first-class office building and related improvements. 1.3 Landlord's Representative. Landlord hereby designates Steve McBride to be its designated representative for purposes of contact between Landlord and Tenant in connection with the design and construction of the Project, including, without limitation, the giving of notices and approvals ("Landlord's Representative"). Landlord shall have the right, by timely written notice given to Tenant in the manner provided in the Lease for the giving of notices, to remove the existing Landlord's Representative and to appoint another individual to act as Landlord's Representative. However, no more than one (1) person shall act as Landlord's Representative at any given time. Landlord agrees that Landlord's Representative shall have the authority to bind Landlord with respect to all matters for which the consent or approval of Landlord is required or permitted pursuant to this Agreement and that all consents, approvals and waivers given in writing by Landlord's Representative shall bind Landlord and may be relied upon by Tenant. Landlord hereby ratifies all actions and decisions with respect to the design and construction of the Project that Landlord's Representative has taken or made prior to the execution of the Lease. 1.4 Tenant's Representative. Tenant hereby designates John Hoey to be its designated representative for purposes of contact between Tenant and Landlord in connection with the design and construction of the Project, including, without limitation, the giving of notices and approvals. Tenant shall have the right, by timely written notice given to Landlord in the manner provided in the Lease for the giving of notices, to remove the existing Tenant's Representative and to appoint another individual to act as Tenant's Representative. However, no more than one (1) person shall act as Tenant's Representative at any given time. Tenant agrees that Tenant's Representative shall have the authority to bind Tenant with respect to all matters for which the consent or approval of Tenant is required or permitted pursuant to this Agreement and that all consents, approvals and waivers given in writing by Tenant's Representative shall bind Tenant and may be relied upon by Landlord. Tenant hereby ratifies all actions and decisions with respect to the design and construction of the Project that Tenant's Representative has taken or made prior to the execution of the Lease. ARTICLE 2 DEFINITIONS 2.1 The following words and phrases used in this Agreement shall have the respective definitions ascribed to them: Base Building: The building to be constructed pursuant to this Agreement and to Annex 1, excluding interior finishing of the space for Tenant's use and occupancy but including toilet rooms, telephone closets, mechanical equipment rooms (complete with air handling equipment and electrical closets with high-voltage and low-voltage panel boards and transformers), elevators and stairwells, main lobby, the Parking Structure (hereinafter defined), preliminary and final site work, landscaping and all other improvements described in the Base Building Construction Documents (as hereinafter defined) and all other improvements required in order to obtain a non-residential use permit for the building (exclusive of the Tenant Work). Base Building Construction Contract: The contract between Landlord and Landlord's Contractor for the performance of the Base Building Work (hereinafter defined). Base Building Construction Documents: The final construction drawings and specifications for the Base Building, approved by Landlord and by appropriate governmental authorities, and all 2 addenda issued prior to and all modifications issued after the execution of the Base Building Construction Contract. Base Building Work: All items of work, materials, equipment and installation (including Project site work) necessary to the construction and completion of the Base Building in accordance with the Base Building Construction Documents. Date of Substantial Completion: The date on which the Base Building is substantially complete as evidenced by (i) a Certificate of Substantial Completion issued by Landlord's Architect and (ii) a Non-Residential Use Permit (shell only) for the Base Building issued by appropriate local government authorities of Baltimore City. Floor Ready Condition: The condition of the Leased Premises when it meets the standards set forth in Annex 2 of this Agreement so that the Leased Premises are ready to receive Tenant Work. Landlord's Architect: Beatty/Harvey/Fillat, the architect selected by Landlord to develop and prepare the Base Building Construction Documents. For the purposes of this Agreement, the term "Landlord's Architect" shall include Beatty/Harvey/Fillat and all other engineers, architects, designers and/or consultants retained by either Landlord or Beatty/Harvey/Fillat in the execution of the Base Building Work pursuant to this Agreement and their respective subcontractors and subconsultants. Landlord's Contractor: The contractor or contractors selected by Landlord. Parking Structure: The parking structure to be constructed by the Landlord, as part of the Base Building. Tenant Construction Delay: The cumulative total of all delays after the execution of this Lease which are due solely to the acts or omissions of Tenant, its agents, employees or contractors. Tenant Construction Delay shall include, without limitation, delays in the performance of Base Building Work caused by the performance of Tenant Work. Tenant Work: All interior finish work which is not included in the Base Building Work but which is required to complete the Base Building for Tenant's use and occupancy for the purposes permitted by the Lease. Tenant Work Construction Contract: The contract between Tenant and Tenant's Contractor for the performance of the Tenant Work. Tenant Work Construction Documents: The final construction drawings and specifications for the Tenant Work. 3 Tenant's Architect: As identified in Paragraph 3.1 of this Agreement. For purposes of this Agreement, the term "Tenant's Architect" shall be deemed to include all architects, engineers designers, and consultants retained by either Tenant or Tenant's Architect in the execution of the design of the Tenant Work pursuant to this Agreement and their respective subcontractors and subconsultants. Tenant's Contractor: The contractor or contractors selected by Tenant to perform the Tenant Work. 2.2 Other Terms. Other capitalized terms used in this Agreement, unless otherwise expressly defined in this Agreement, shall have those definitions respectively ascribed to them in this Lease. ARTICLE 3 CONSTRUCTION DOCUMENTS 3.1 Tenant Work Construction Documents. Landlord and Tenant agree that Tenant has the unconditional right, without penalty, to select the architect of its choice for the preparation of the Tenant Work Construction Documents (the "Tenant's Architect"). Tenant shall be responsible for the timely preparation and completion of the Tenant Work Construction Documents. 3.2 The Tenant Work Construction Documents shall set forth, among other things, the proposed configuration of the Tenant Work, the materials to be used in the construction thereof and all appropriate electrical, plumbing, mechanical and finish specifications and schedules. 3.3 Tenant shall deliver to Landlord, for its review and comment, preliminary plans and specifications of the construction documents for the Tenant Work. Landlord shall review and approve the preliminary plans and specifications to assure that the Tenant Work is consistent with the Base Building Construction Documents. Within five (5) business days after its receipt of preliminary plans and specifications of the construction documents for the Tenant Work, Landlord shall provide to Tenant its written comments to the documents. Tenant shall take complete responsibility for ensuring that the Tenant Work Construction Documents comply with all applicable legal requirements. Tenant shall not be entitled to a postponement of the Lease Commencement Date for any delay in the commencement or completion of the Tenant Work caused by the failure of the Tenant Work Construction Documents to comply with applicable legal requirements. 3.4 After Tenant revises the Tenant Work Construction Documents based on Landlord's comments, Tenant shall submit to Landlord, for its timely review and comment, final plans and specifications for the Tenant Work. Within five (5) business days of its receipt of final plans and specifications, Landlord shall confirm to Tenant in 4 writing its approval or give Tenant any additional comments. The failure of Landlord to review or comment on the construction documents for the Tenant Work in a timely manner shall not operate as a bar to Tenant from approving final construction documents for the Tenant Work and submitting them to appropriate governmental authorities for approval. The government-approved final construction documents for the Tenant Work shall be the "Tenant Work Construction Documents. " Tenant shall deliver to Landlord two (2) complete sets of Tenant Work Construction Documents promptly after Tenant receives the government permits to construct the Tenant Work. 3.5 Landlord's comments or failure to comment on any of the documents prepared by Tenant pursuant to the is Article 3 shall not be deemed to be an approval of or admission as to the legality or accuracy of the work described in such documents or as to the adequacy of the design or the coordination of such work. ARTICLE 4 PERFORMANCE OF THE WORK GENERALLY 4.1 Cooperation of the Parties. Landlord and Tenant agree to cooperate with one another in the performance of their respective construction obligations for the Project pursuant to this Agreement and specifically relating to those portions of the Base Building construction that may affect Tenant's construction costs. Landlord and Tenant each agree to work expeditiously and in good faith with the other and with the respective contractors, architects and others to complete the Base Building Work and the Tenant Work in a timely manner in accordance with the respective construction documents and to cause their respective architects, contractors and employees to do the same. Landlord shall respond to requests for information from Tenant within ten (10) days. Landlord shall provide Tenant with a detailed schedule for its Base Building construction. Notwithstanding this mutual cooperation, Landlord shall not have any right to direct Tenant's Architect, Tenant's Contractor or Tenant's employees and Tenant shall not have any right to direct Landlord's Architect, Landlord's Contractor or Landlord's employees. 4.2 Coordination of Contractors. Landlord shall properly coordinate the Base Building Work with the Tenant Work and shall ensure that the Base Building Construction Contract provides for such opportunity. Tenant shall properly coordinate the Tenant Work with the Base Building Work and shall ensure that the Tenant Work Construction Contract provides for such opportunity. Tenant shall ensure that the Tenant Work Construction Contract includes appropriate provisions to the effect that, if any part of the Tenant Work depends on the proper execution or results of the Base Building Work, then Tenant's Contractor shall inspect the Base Building Work and shall promptly report to Tenant (with copies to Landlord and to Landlord's Contractor) any defects it discovers in 5 the Base Building Work that render it unsuitable for the proper execution of the Tenant Work. Landlord shall construct the Base Building in accordance with the Base Building Construction Documents. 4.3 Landlord shall cause Landlord's Contractor to perform the Base Building Work in a manner that does not unreasonably interfere with the performance by Tenant's Contractor of the Tenant Work. Tenant shall cause Tenant's Contractor to perform the Tenant Work in a manner that does not unreasonably interfere with the performance by Landlord's Contractor of the Base Building Work. 4.4 Construction Contract Provisions. The Base Building Construction Contract and the Tenant Work Construction Contract shall each include, without limitation, sufficient and appropriate provisions for: (i) reasonably detailed and unambiguous procedures for the administration of change orders and construction change directives, (ii) in the case of the Base Building Construction Contract, express warranties that the work performed under the Base Building Construction Contract is warranted to be free from defects in materials and workmanship for a period of at least one (1) year from the Date of Substantial Completion, (iii) insurance in forms and amounts customary for the construction of a first-class office building in Baltimore, Maryland (iv) the performance of work under the respective construction contracts and subcontracts in accordance with the respective construction documents and in accordance with the standards of workmanship and materials for a first-class office building in Baltimore, Maryland, (v) the timely payment of sums due under the respective construction contract and the prompt discharge of all liens and claims of lien, (vi) reasonable measures for conducting operations in a manner which guards against damage to property and injury to persons, (vii) the coordination of work by separate contractors, (viii) in the case of the Tenant Work Construction Contract, the agreement that Tenant's Contractor shall not file a mechanic's or materialman's lien against Landlord's interest in the Land, the Base Building, or both, and shall limit its lien rights to Tenant's Leasehold Estate, and (ix) in the case of the Base Building Construction Contract, the agreement that Landlord's Contractor shall not file a mechanic's or materialman's lien against all or part of the Tenant Work but shall limit its lien rights to Landlord's interest in the Land, the Base Building or both. 6 ARTICLE 5 PERFORMANCE OF THE TENANT WORK 5.1 Tenant Allowances. Landlord shall provide Tenant with a construction allowance as set forth in Section 39 of the Lease. The Tenant Regular Allowance and the Tenant Special Allowance shall be collectively referred to as the "Tenant Allowances. " 5.2 Tenant shall be responsible for all costs to design and perform the Tenant Work in excess of the respective Tenant Allowances, except for damage to the Tenant Work caused by Landlord, Landlord's Contractor or their respective employees or agents. 5.3 Tenant Work Construction Contract. The Tenant Work shall be constructed in accordance with the Tenant Work Construction Documents. Landlord and Tenant agree that Tenant has the unconditional right, without penalty, to select the contractor of its choice to perform the Tenant Work ("Tenant's Contractor"). All Tenant Work shall be constructed by Tenant's Contractor under a written construction contract between Tenant and Tenant's Contractor (the "Tenant Work Construction Contract"). Tenant agrees that the bid documents for the Tenant Work shall include the standards of Floor Ready Condition. Tenant reserves its right to substitute contractors and shall give reasonable notice of any such substitution to Landlord. 5.4 Government Permits and Approvals. Tenant shall be responsible for timely obtaining, from appropriate governmental authorities, all licenses, permits and approvals necessary for the proper performance of the Tenant Work and for the cost of such licenses, permits and approvals. Landlord shall cooperate with Tenant in obtaining such licenses, permits and approvals. 5.5 Tenant's Cost Obligations. Tenant shall be responsible for all costs associated with removing or discharging liens or claims of lien asserted by Tenant's Architect or Tenant's Contractor. 5.6 Landlord Right of Access and Inspection, Progress of the Work. Landlord and Landlord's Architect shall have the right of access to inspect the Tenant Work and Tenant shall allow Landlord and Landlord's Architect free and unrestricted access to the Tenant Work for such inspections, provided such access and inspection do not unreasonably interfere with or delay the performance of the Tenant Work. Landlord, Tenant, Tenant's Architect, Landlord's Architect and, where appropriate, Landlord's Contractor and Tenant's Contractor shall meet on a regular basis to discuss the progress of the construction of the Tenant Work and its coordination with the Base Building Work. Tenant and Landlord shall hold such meetings more frequently when needed. 5.7 Utilities; Protection of Work, Clean-up. Tenant shall make arrangements with Landlord for temporary water, power and other 7 utilities and connections therefor and the use of the porta-sans for the Base Building during the period when the Tenant Work is being performed. Landlord shall pay the cost of temporary utilities up to the date that the Leased Premises are delivered to Tenant in Floor Ready Condition for its construction of Tenant Work; thereafter, Tenant shall be responsible for the cost of such utilities in the Leased Premises. Tenant shall be responsible for the removal (including cost) of trash and construction debris resulting from the performance of Tenant Work. Tenant shall take all reasonable steps to protect the Base Building Work from and against damage arising out of its performance of the Tenant Work. Landlord shall take all reasonable steps to protect the Tenant Work from and against damage arising out of its performance of Base Building Work. Upon completion of the Tenant Work, Tenant shall remove all surplus materials, debris and rubbish of whatever kind remaining in any part of the Base Building brought in or created in the performance of the Tenant Work. Tenant shall make, whether directly or through Landlord, all payments when due for the Tenant Work, whether to contractors or others. When the Tenant Work is completed, Tenant shall furnish to Landlord one (1) set of "as-built" plans of mylars and one (1) set of specifications for the Tenant Work prepared and sealed by Tenant's Architect. 5.8 Neither Tenant nor Tenant's Contractor shall store materials required for performance of the Tenant Work in any part of the Base Building that is leased to another tenant. Landlord shall permit Tenant and Tenant's contractors use of unoccupied portions of the Project for field offices, staging and construction materials storage at no charge. ARTICLE 5A LANDLORD'S WORK 5A.1 Landlord shall prepare the Project Site and construct the Base Building in a good and workmanlike manner, with reasonable diligence, in accordance with the Base Building Construction Documents and to the standard set forth in Section 1.2. 5A.2 Landlord will give Tenant, to the extent available, the benefit of all warranties relating to equipment installed in the Leased Premises. 5A.3 Tenant Right of Access. Tenant and Tenant's Architect shall have the right of access to inspect the Base Building and Landlord shall allow Tenant and Tenant's Architect free and unrestricted access to the Base Building for such inspections, provided such access and inspection do not unreasonably interfere with or delay the performance of the Base Building Construction. 8 5A.4 Tenant shall have thirty (30) days to give notice to Landlord of any defects in the Base Building construction. Subject to Unavoidable Delays, Landlord shall have sixty (60) days from the date of receipt of notice from Tenant to correct such defects. ARTICLE 6 DELIVERY OF LEASED PREMISES 6.1 Prior to the Date of Substantial Completion of the Base Building, Landlord shall deliver possession of the Leased Premises to Tenant in Floor Ready Condition, except for touch-up, minor finish and similar so-called "punchlist" items that do not prevent Tenant from beginning to perform Tenant Work in the Leased Premises. When Landlord believes that the Base Building Work on the Leased Premises is about to be completed, Landlord, Tenant, Tenant's Architect and Tenant's Contractor shall walk through and make a visual inspection of the Leased Premises, and Landlord's Architect and Tenant's Architect shall jointly prepare a schedule of "punchlist" work for the Leased Premises within 30 days of the delivery of the Leased Premises. Landlord shall provide five (5) Business Days' oral or written notice to Tenant of the time when such inspection shall occur. 6.2 Subject to Unavoidable Delays, within thirty (30) calendar days after the receipt by Landlord's Architect of the punchlist for the Leased Premises, Landlord shall cause Landlord's Contractor to complete all items identified in the punchlist. ARTICLE 7 DISPUTE RESOLUTION 7.1 Cooperation of the Architects. Landlord's Architect and Tenant's Architect shall each have the affirmative duty to consult with one another and to cooperate in rendering a determination under the Base Building Construction Contract or the Tenant Work Construction Contract whenever such determination affects both the Base Building Work and the Tenant Work. Landlord and Tenant shall include provisions to such effect in their respective contracts with the architects. 7.2 Dispute Resolution. If the parties to this Agreement are unable to resolve their differences through negotiation, then such dispute(s) shall be resolved through arbitration pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association then in effect, as modified by the terms of this Article 7. Arbitration shall be conducted at a location in Baltimore, Maryland to be agreed upon by the parties. Disputes under the respective architect contracts and construction contracts shall be resolved in accordance with the dispute resolution provisions set forth in such contracts. 9 7.3 Selection of Arbitrators. Arbitration shall be conducted by three (3) arbitrators with each party to this Agreement selecting one (1) arbitrator each and the two selected arbitrators then selecting the third arbitrator. 7.4 Limited Discovery. Prior to the commencement of the arbitration, each party shall be entitled to take limited discovery, including the rights to request a reasonable number of documents, to serve no more than twenty (20) interrogatories and to take no more than three (3) depositions. This limited discovery shall be conducted in accordance with the Federal Rules of Civil Procedure, which shall be interpreted and enforced by the arbitrator. 7.5 Hearing and decision. The arbitrators shall, as soon as practicable and upon fifteen (15) days' written notice to each party, conduct an arbitration hearing and proceeding on the merits of the dispute and thereafter shall issue a written decision citing the bases for the decision, including findings of fact and conclusions of law. 7.6 Costs and Expenses. Each party shall bear its own costs and expenses arising out of any arbitration and shall bear equally the costs, expenses and fees of the arbitrator, unless the arbitrator determines otherwise. 7.7 Consolidation and Joinder. Any arbitration arising out of or relating to this Agreement or breach thereof may include by consolidation, joinder or other manner any other Person or Persons which or whom a party to the arbitration reasonably believes to be substantially involved in a common question of fact or law. 7.8 Enforcement. The agreement to arbitration shall be specifically enforceable under prevailing arbitration law. Any award rendered by the arbitrator(s) shall be final and enforceable by any party to the arbitration, and judgment may be rendered upon it in accordance with applicable law in a court of competent jurisdiction. 10 ANNEX I HARBOR EAST BUILDING SHELL DEFINITION AUGUST 9, 1995 BUILDING SHELL - -------------- 1. The building standard HVAC system capacity is 310 gross square feet per ton. 2. The building Standard HVAC system shall be as follows: A. VAV's will be installed at a ratio of 1 VAV per 1500 square feet. Each VAV will have & thermostat. B. The Building Standard system does not extend beyond the VAV's and does not include flex duct, spin outs or low pressure duct work and diffusers. C. VAV's will be located to accommodate the tenant's plan provided that all final tenants plans are issued to us in accordance with a mutually agreed upon schedule such that construction coordination and progress is not impacted. 3. The Building Standard, sprinkler system will be installed at a density on average of one head, per 150 rentable square feet. Coordination of sprinkler installation with the tenant plans will be provided if the plans are issued in advance of the sprinkler design. Any head relocation or additional heads required will be at tenant's expense. 4. The Building fire alarm smoke detectors, exit lights, hose cabinets, etc. will be installed per code requirements for the core and shell only. However, the alarm system will have the capacity for adding additional tenant devices. 5. The Building power distribution system including the power to the electrical panel will be able to handle the three watts per square feet for lighting and five watts per square feet for convenience power and shall consist of the incoming switch gear and vertical distribution to panel boards in an electrical closet on each floor. All distribution from the panel will be by he tenant. The Building Standard does not include independent "clean power" risers. 6. The mini-blinds will be furnished and installed at all perimeter windows by Landlord. 1 7. The Building generator is sized at 300 KVA. 8. The window system will be provided on 5' modules. 9. The Building design provides for 100 pound per square feet floor loafing. 10. The loading dock area will have space for one (1) tractor trailer and a trash compactor. 11. Exterior wells adjacent to and beneath windows will be insulated, furred. drywalled, taped, bedded and ready to receive paint. 12. No corridor or demising walls are included in the core and shell for full floor users. 13. Two (2) wet stacks will be provided for plumbing tie-ins. 14. Finishes in elevator cabs and restrooms are included. 16. Tenant elevator lobbies will be finished with a combination of carpet, vinyl wallcovering, ceiling and light fixtures. In the event that the Tenant notifies the Landlord in writing within ninety (90) days after the Lease execution, the Tenant has the option to receive credit for base building Tenant elevator lobby finishes. 17. Signage for restrooms, elevator lobbies, and stairs shall comply with all the Americans With Disabilities Act of 1990 (ADA) 2 ANNEX II HARBOR EAST FLOOR READY CONDITION 4TH & 5TH FLOOR August 8, 1995 Base Building work to be completed in order for each Base Building Floor to be in Floor Ready Condition: 1) Exterior walls and "less windows end frames Installed and weathertight, except for area(s) at external lift locations (if any). 2) Unfinished interior of exterior walls (with wallboard portion of exterior walls taped, bedded, and finished ready for surface treatment). 3) Unfinished concrete floors to have a trowel finish throughout and to be level to the specifications required in the Base Building Construction Documents. 4) Sprinkler risers and main loop installed, together with sprinkler heads, as provided in the Base Building Construction Documents.. 5) Tenant side of building core installed with walls installed, taped and finished. 6) Building electrical panels (ready for Tenant's electrical connections) in the core electrical closets constucted in accordance with the Base Building Construction Documents and ready for Tenant's electrical connections. 7) Building air handling unit(s) in the applicable mechanical room (if any). 8) One (1) sanitary sewer and vent location (if any) in the core area for Tenant's connection in accordance with the Base Building Construction Documents. 9) One (1) domestic colt water supply connection (if any) in the core area in accordance with the Base Building Construction Documents. 10) The reinforcement of the Base Building floor, if required by the Base Building Construction Documents. EXHIBIT C SPECIFICATIONS FOR OFFICE CLEANING The leased premises and the building itself will be maintained in a manner befitting a modern, first-quality rental office building in Baltimore, Maryland. The Landlord will furnish janitor and cleaning services as described below for the demised premises (includes office areas, stock rooms, xerox rooms, conference rooms and corridors): I. DAILY: 1. Collect trash. (Private kitchens included.) 2. Empty ash trays; damp wipe clean. 3. Dust furniture, desks, machines, phones, file cabinets, window ledges, etc. (Papers left on desks will not be disturbed.) 5. Wash water fountains. 6. LAVATORIES: (a) Clean and disinfect all toilet bowls, urinals, and wash basins. (b) Clean mirrors. (c) Resupply all dispensers and toilet paper. (d) Damp wipe and disinfect all ledges, toilet stalls, and doors. (e) Damp mop and disinfect all floors. (f) Empty and clean sanitary napkin disposal containers. (g) Collect trash. 7. TURN OFF LIGHTS AND CHECK ALL DOORS ON COMPLETION OF WORK. II. WEEKLY: 1. Spot clean carpet stains. 2. Spot clean walls, doors, partitions. 3. Sweep all stair areas. 4. Dust wood wall paneling. III. MONTHLY: 1. Scrub and recondition resilient tile floors. 2. Wash all interior glass partitions on both sides. 3. Dust Venetian blinds. 4. Dust picture frames, charts, etc. IV. SEMI-ANNUALLY: 1. Dust all horizontal and vertical surfaces not reached in nightly cleaning (pipes, light fixtures, door frames, wall hangings, etc.). 2. Wash windows, inside and outside. V. ANNUALLY: Strip and refinish all resilient floor areas using buffable, non-slip floor finish. VI. AS NECESSARY: 1. Clean Venetian blinds. 2. Spot clean light switches, doors, and walls 3. Wash light fixtures including reflectors. globes, diffusers, and trim. 4. Spot clean all baseboards. VII. EXTRAS - CHARGED TO TENANT: * 1. Daily buffing of hardwood floors in executive office areas. 2. Cleaning of kitchen, canteen, or coffee station areas, including washing sink, washing ledge, cleaning cabinets, and/or appliances. 3. Dusting and sweeping of storage areas, closets, telephone exchange areas. 4. Cleaning of shower stalls, jacuzzis, or other similar non-standard equipment included in restrooms. Should Lessee install specialty items, other than building standard items as outlined in Exhibit "A", or above, which will increase in any way the rate being charged by the cleaning contractor for the demised premises, Lessee shall be liable for such increases and will reimburse Lessor for any additional cost. All of the above services are to be performed during those hours as established between owner and cleaning contractor. Any special cleaning requests are to be in writing and delivered to the management office by 3:00 p.m. *Only if authorized by Tenant. 5368EML.2dl -2- EXHIBIT D RULES AND REGULATIONS The following rules and regulations have been formulated for the safety and well-being of all the Tenants of the Building. Adherence to these rules and regulations insures that each and every Tenant will enjoy a safe occupancy in the Building. Any violation of these rules and regulations by any Tenant which continues after notice from Landlord shall be sufficient cause for termination, at the option of Landlord, of the Tenant's lease. Landlord shall have the continuing right to amend or eliminate any of the rules and regulations, and also to adopt additional reasonable rules and regulations of like force and effect. Any change whatsoever of any nature shall be effective thirty (30) days after delivery of written notice thereof to the Tenant at the demised premises. 1. The sidewalks, entrances, passages, courts excluding main security/reception area, elevators, vestibules, stairway corridors or halls or other parts of the Building not occupied by any Tenant (hereinafter "Common Areas") shall not be obstructed or encumbered by any Tenant or used for any purpose other than ingress and egress to and from the Tenant's premises. Landlord shall have the right to control and operate the Common Areas, and the facilities furnished for the common use of the Tenants, in such manner as Landlord deems best of the benefit of the Tenants generally. No Tenant shall permit the visit to its premises of persons in such numbers under such conditions as to interfere with the use and enjoyment by other Tenants of the Common Areas. 2. No awning or other projections shall be attached to the outside walls of the Building without the prior written consent of Landlord. No blinds, shades or screens shall be attached to or hung in, or used in connection with, any window or door of a Tenant's premises, without the prior written consent of the Landlord. Such awnings, projections, curtains, blinds, screens or other fixtures must be of a quality, type, design and color, and attached in the manner approved by Landlord. 3. No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or affixed by any Tenant on any part of the outside of the Tenant's premises or the Building without the prior written consent of the Landlord. In the event of the violation of the foregoing by any Tenant, Landlord may remove same without any liability, and may charge the expense incurred by such removal to the Tenant or Tenants violating this rule. 4. No show cases or other articles shall be put in front or affixed to any part of the exterior of the Building, nor placed in the Common Areas without the prior written consent of Landlord. 5. The water and wash closets and other plumbing fixtures shall not be used for any purposes 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 employees, agents, visitors or licensees, shall have caused the same. 6. There shall be no defacing or damage of any part of a Tenant's premises or the Building. No Tenant shall construct, maintain, use or operate within its premises or elsewhere within or on the outside of the Building, any electrical device, wiring or apparatus in connection with a loud speaker system or other sound system. Landlord will, however, permit a Tenant to install muzak or other internal music system within the Tenant's premises if the music system cannot be heard outside the premises. 7. No Tenant shall make or permit to be made, any disturbing noises or disturb or interfere with occupants of the Building or neighboring buildings or premises or those having business with them, whether by the use of any musical instrument, radio, tape recorder, whistling, singing, or any other way. No Tenant shall throw anything out of the doors or windows or down the corridors or stairs. 8. No bicycles, vehicles or animals, birds or pets of any kind shall be brought into the Building or kept in or about a Tenant's premises. No cooking shall be done or permitted by any Tenant on its premises, except that, with Landlord's prior approval, a Tenant may install and operate for the convenience of its employees, a main kitchen, a lounge or coffee room with microwave, sink and refrigerator. No Tenant shall cause or permit any unusual or objectionable odors to originate from its premises. 9. No space in or about the Building, including balconies, shall be used for the manufacture or sale at auctions, or merchandise, goods or property of any kind. 10. No other inflammable, combustible or explosive fluid, chemical or substance shall be brought or kept upon a Tenant's premises. 11. No additional bolts of any kind shall be placed upon any of the doors or windows by any Tenant, nor shall changes be made in existing locks or the mechanism thereof. The doors leading to the corridors or main halls shall be kept closed during business hours except as they may be used for ingress or egress. Each Tenant shall, upon the termination of its tenancy, return to Landlord all keys used in connection with its premises, including any keys to the premises, to rooms and offices within the premises; to storage rooms and closets, to cabinets and other built-in furniture, and to toilet rooms, whether or not such keys were furnished by Landlord or procured by Tenant, and in the event of loss of any such keys, such Tenant shall pay to Landlord the cost of replacing the locks. On termination of a Tenant's lease, the Tenant shall disclose to Landlord the combination of all locks for safes, safe cabinets, and vault doors, if any, remaining in the premises. 12. All removals, or the carrying in or out of any safes, freight, furniture or large items of any description must take place in specified elevators and in such manner as to not unreasonably interfere with other tenants. 13. Any persons employed by any Tenant to do Janitorial work within the Tenant's premises shall comply with all instructions issued by the superintendent of the Building. 14. No Tenant shall purchase spring water, ice, coffee, soft drinks, towels, or other like merchandise or service from any company or person whose repeated violations of building regulations have caused, in Landlord's reasonable opinion, a hazard or nuisance to the Building and/or its occupants. 15. Landlord shall have the right to prohibit any advertising by any Tenant which, in Landlord's reasonable opinion, tends to impair the reputation of the Building or its desirability as a building for offices, and upon written notice from Landlord, such Tenant shall refrain from or discontinue such advertising. 16. Landlord reserves the right to exclude from the Building at all times any person who is not known or does not properly identify himself to the building management or its agents. Landlord may at its option require all persons admitted to or leaving the Building to register. If identification cards are used in any security system, Tenant shall be issued a reasonable number of cards without charge, but each additional or replacement card requested shall be issued only upon payment of a service fee of Ten Dollars ($10.00) per card. 17. Each Tenant, before closing and leaving its premises at any time, shall use reasonable efforts to see that lights, electrical appliances and mechanical equipment are turned off. 18. The requirements of Tenants will be attended to only upon application at the office of the Building. Building employees shall not perform any work or do anything outside of their regular duties unless under special instruction from the management of the Building. 19. Canvassing, soliciting and peddling in the Building is prohibited and each Tenant shall cooperate to prevent the same, including notifying Landlord when and if such activity occurs. 3 20. No water cooler, plumbing or electrical fixture (other than common wall outlets) shall be installed by the Tenant without Landlord's prior written consent, which consent shall not be unreasonably withheld. 21. There shall not be used in any space, or in the public halls of the Building, either by any Tenant or by jobbers or others, in the delivery or receipt of merchandise, any hand trucks, except those equipped with rubber tires and side guards. 22. Access plates to underfloor conduits shall be left exposed. Where carpet is installed, carpet shall be cut around access plates. 23. Mats, trash, boxes, crates and other objects shall not be placed in public corridors. When Tenant must dispose of trash, boxes, crates, etc., it will be the responsibility of Tenant to dispose of same prior to or after normal business hours so as to avoid having such debris visible in the public areas during such hours. 24. Drapes installed by Tenant which are visible from the exterior of the Building must be clean by such Tenant at least once a year, at Tenant's own expense. 25. Landlord does not maintain, or clean, or repair suite finishes which are non-standard such as wallpaper, special lights, etc. However, should the need for repairs arise, Landlord will arrange for the work to be done at the Tenant's expense. 26. All office equipment of any electrical or mechanical nature shall be placed by Tenant in the demised premises in approved settings to absorb or prevent any vibration, noise or annoyance. Further, Landlord shall have the power to prescribe the weight and position of heavy equipment or objects which may overstress any portion of the floor. All damage done to the Building by the improper placing of such heavy items will be repaired at the sole expense of the responsible Tenant. 27. Tenant shall not permit or cause to be used in the demised premises any device or instrument such as sound reproduction system, or excessively bright, changing, flashing, flickering, moving lights or lighting devices or any similar devices, the effect of which shall be audible or visible beyond the confines of the demised premises, nor shall Tenant permit any act or thing upon the demised premises disturbing to normal sensibilities of other Tenants. 28. All deliveries must be made via the service entrance and elevators designated by Landlord for service, if any, during normal business hours. 4 29. The demised premises shall never at any time be used for any immoral or illegal purposes. 5369EML.2sc 6/2/95 EXHIBIT E Rentable Area for a Single and Multiple Tenancy Floor The rentable area of a single and multiple tenancy floor shall be the area within the outside walls computed by measuring the inside finishes surface from the glass line of the permanent outer building walls. Inclusions shall be accessory areas serving that floor, such as elevator lobby, corridors, toilets, janitor's closets, electrical closets, mechanical rooms, telephone closets, etc. Inclusions shall also be a proportionate share of common services for the building, such as main floor lobby area, main building electrical and mechanical rooms, building engineer's office, etc. Rentable area shall include a proportionate share of these services based upon the percentage of square footage leased on the floor. No deduction shall be made for columns and projections necessary to the building. Exclusions shall include such items as elevator shafts, stair wells, air duct charges and plumbing chases. 5369EML.sac EXHIBIT F BEING KNOWN AND DESIGNATED as Parcel R as depicted on that certain subdivision plat entitled, "flat of Subdivision, INNER HARBOR EAST; Ward 3, Section 6, Block 1801, Lot 1; Block 1802, Lot 1 & 2" which Plat is to be duly recorded among the Land Records of Baltimore City. 5366EML,4kk August 2, 1995 EXHIBIT G HARBOR EAST OFFICE BUILDING SECURITY ================================================================================ 1. Manned security station will be located in lobby with visual lines to front and rear access points to lobby. Station will be manned during the building hours of operation described in Lease. 2. An electronic security system will be provided for the building to provide access to the building 24 hours per day, seven (7) days a week. 3. Cardreaders will be provided at the main entries to the building, including access from garage. 4. If parking is leased in garage, cardreader access (number of cards) will be provided in garage equal to the number of spaces leased. 5. Stairs will be controlled with prop sensors. 6. Cardreader access will be provided at elevator bank in main lobby and garage level to provide additional control. 7. Adjacent parking lot to have card access system for after hours. 8. Adjacent parking is manned during business hours. 9. Adjacent parking lot is lighted from dark to dawn. 10. Adjacent parking lot is fenced. 11. Parking location is convenient to building. EXHIBIT I INNER HARBOR EAST ----------------- SUBDIVISION PLAN DATE 3 AUGUST 1995 EXHIBIT J ================================================================================ MILLER ================================================================================ CORPORATE REAL ESTATE SERVICES August 29, 1994 Mr. Michael Culbert Gilbane Properties 7 Jackson Walkway Providence, Rhode Island 02940 Dear Michael: Miller Corporate Real Estate Services, a Maryland corporation ("Broker"), has procured a perspective tenant, Sylvan Learning Systems (Tenant) for the property known as Inner Harbor East (Landlord). To follow is the commission schedule "d terms by which Miller Corporate Real Estate Services expects to be paid, Kindly review this agreement, have it executed and return a signed copy to me. COMMISSION RATE AND SCHEDULE Broker shall be paid by Landlord a real estate commission based on $4.00 per square foot multiplied by the gross building area 1 leased by Tenant. For example. in the event Tenant leases 51,200 GBA. Broker will be paid $204,000.00 based on a calculation of 51,200 GBA x $4.00 p.s.f. = $204,000.00. In no event will broker be paid a fee less than $204,000.00. Payment of the commission shall be 75% upon lease execution and 25% upon lease commencement. EXPANSION SPACE In the event Tenant expands its space compared to the originally leased square footage Broker will be paid a fee of $4.00 per gross square foot leased Said commission shall be earned and payable at the time he additional space terms are mutually executed between Landlord and Tenant. RENEWAL OPTIONS In the event Tenant renews its lease for a term of length equal to the initial term, Broker shall be pan' by Landlord a real estate commission equal to $4.00 per gross square foot leased or a fee equivalent to current standard commission structures in the: Baltimore City market, whichever is greater. ONE SOUTH STREET - SUITE 800 * BALTIMORE * MARYLAND 21202 ILLEGIBLE This agreement constitutes the entire agreement between Landlord and Broker and supersedes all prior discussions. negotiations, and agreements whether oral or written. No amendment, alteration cancellation or withdrawal of this agreement shall be valid or binding unless made in writing and signed by both Landlord and Broker. This agreement shall be binding upon and shall benefit the heirs successors ant assignees of the parties. Thank you in advance for your prompt attention and we look forward to working with you as it relates to this potential transaction Very truly yours, /s/ Ira J. Miller Ira J. Miller Principal IJM:mgo APPROVED THIS 28 DAY OF OCTOBER, 1994 OWNER: GILBANE PROPERTIES INC. BY: /s/ ILLEGIBLE ---------------------------- TITLE: Vice President Miller Corporate Real Estate Services Licensed Real Estate Broker BY: /s/ Ira Miller Ira Miller TITLE: Principal DATE: 10/3/94 ============================== MILLER ============================== CORPORATE REAL ESTATE SERVICES 5/13/96 AMENDMENT OF LEASE THIS AMENDMENT OF LEASE ("Amendment") is made as of this 13th day of May, 1996, by and between HARBOR EAST-OFFICE, LLC, formerly known as HARBOR EAST PARCEL G - OFFICE, LLC (hereinafter referred to as "Landlord") and SYLVAN LEARNING SYSTEMS, INC. (hereinafter referred to as "Tenant"). R E C I T A L S A. Landlord and Tenant entered into a lease dated as of August 24, 1995 (hereinafter referred to as the "Original Lease") regarding portions of the Building located at 1000 Lancaster Street, Baltimore City, Maryland. B. The parties hereto desire to amend the Original Lease as hereinafter set forth. NOW, THEREFORE, WITNESSETH for good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto agree as follows: 1. Defined Terms: Terms defined in the Original Lease shall have the same meaning for purposes of this Amendment except for the following definitions which shall supersede the version contained in the Original Lease: 1.1. Leased Premises: The area located on the 2nd, 3rd, 4th and 5th Floors of the Building as outlined in red on the floor plans attached as Exhibit A-1 to this Amendment consisting of 88,578 square feet as hereinafter set forth: 2nd Floor 27,695 square feet 3rd Floor 9,447 square feet 4th Floor 27,695 square feet 5th Floor 23,741 square feet
The space on the 2nd and 3rd Floor of the Building shall be the "Expanded Leased Premises" for the specific purposes set forth in the Lease. 1.2. Rentable Area: The net rentable area of the Leased Premises as determined by Landlord's architect from the approved permit set of construction drawings for the Leased Premises, without field measurement, in accordance with the provisions of Exhibit E to this Lease. Landlord's architect has initially estimated the Rentable Area to be approximately 92,333 square feet as hereinafter set forth: 5845EML.jjm 05/10/96 2nd Floor 28,486 square feet 3rd Floor 11,042 square feet 4th Floor 28,486 square feet 5th Floor 24,319 square feet
1.3. Tenant: The Tenant named herein and any permitted assignee under Section 15. 2. Lease Commencement Date. Section 2A is deleted in its entirety and the following is inserted in lieu thereof: "2A. Lease Commencement Date. The Lease Commencement Date shall occur on the earlier of (a) seventy-five (75) days after Landlord has delivered the Leased Premises to Tenant in a Floor Ready Condition (the "Tenant Work Period") provided that the Date of Substantial Completion has occurred or (b) the first day Tenant moves in and occupies any significant portion of the Leased Premises (the "Occupancy Date"). For purposes of this Lease, (i) significant portion of the Leased Premises shall mean the occupancy of at least 10,000 square feet and (ii) the performance of Tenant Work and the installation of files, furniture, equipment and decorations shall not constitute the taking of occupancy by Tenant. If neither the Occupancy Date nor the Date of Substantial Completion has occurred by the end of the Tenant Work Period, the Lease Commencement Date shall be deferred until the earlier of (i) the Date of Substantial Completion, or (ii) the Occupancy Date. If the Date of Substantial Completion for the Base Building has not occurred by December 1, 1996, Landlord shall pay Tenant liquidated damages in the amount of $1,424.00 per day for each day of delay after December 1, 1996 not caused by Tenant's Delay (as defined in Exhibit B) until the Lease Commencement Date occurs. Within 10 days after the Lease Commencement Date has been determined, Tenant shall, at the request of Landlord, execute and deliver to Landlord a written instrument setting forth the precise dates of commencement and expiration of the Term and the Rentable Area, and certifying that Tenant is in possession of the Leased Premises and has no claims, defenses, offsets or counterclaims against Landlord, or specifying each such claim, defense, offset or counterclaim. Notwithstanding the foregoing, Tenant may elect to use Landlord's Contractor to perform the Tenant Work. In such event, the Floor Ready Condition shall be the earlier of (a) fifteen (15) days after Landlord's Contractor commences Tenant Work or (b) the date the Landlord delivers the Leased Premises in a Floor Ready Condition. 5845EML.jjm 05/10/96 -2- 3. Gross On Of Operating Expenses: The last sentence of Section 3(d)(ii) is deleted in its entirety and the following is inserted in lieu thereof: "Notwithstanding the foregoing, Tenant's share of Operating Expenses shall not exceed the following: (1) eighty percent (80%) of all Operating Expenses so long as Tenant's Rentable Area does not exceed 55,000 square feet; and (2) ninety-two and a half percent (92.5%) of all Operating Expenses so long as Tenant's Rentable Area does not exceed 90,000 square feet. In no event shall Tenant's share of Operating Expenses by any calculation hereunder exceed one hundred percent (100%) of all Operating Expenses. 4. Basic Rent for Expanded Leased Premises and Abatement: Add as a new Section 3(j) the following: "(j) Basic Rent for Expanded Leased Premises and Abatement. Notwithstanding any other provision of this Lease, no Basic Rent shall be payable on the Expanded Leased Premises for the first ninety (90) days after the Lease Commencement Date. Such abatement of Basic Rent shall not reduce Landlord's obligations to Tenant under Section 39 or Tenant's obligation to pay Additional Charges on the Expanded Leased Premises, beginning on the Lease Commencement Date." 5. Restrictions on Use: A new clause 6(c)(ix) shall be added which shall read: "or (ix) make any penetrations into the slab of the Leased Premises without having the area to be penetrated xrayed to assure that the cables located within the slab will not be damaged as the result of any proposed drilling, cutting or penetration of the slab by Tenant." 6. Abatement of Basic Rent and Additional Charges In The Event of Damage by Fire or Other Casualty: Replace the first sentence of Section 13(b) with the following: "If all or any part of the Leased Premises are rendered untenantable by reason of damage caused by a fire or other casualty, whether to the Leased Premises or the Building and the damaged part is not being used by Tenant, the Basic Rent and Additional Charges shall be abated for the proportion of the Leased Premises rendered untenantable for the period between the date of the fire or other casualty and the date when the damage which Landlord is obligated to repair shall have been repaired or the date on which this Lease is terminated pursuant to subsection (c), whichever occurs first. 5845EML.jjm 05/10/96 -3- 7. Assignment and Subletting: Section 15(a) is deleted in its entirety and the following is inserted in lieu thereof: "So long as Tenant remains primarily liable for the obligations of Tenant under this Lease, Tenant may, subject to the terms and requirements of this Lease, including the use restrictions in Section 6, assign its leasehold estate and/or sublet all or part of the Leased Premises (i) to any Affiliate of Tenant, and (ii) subject to Landlord's approval, not to be unreasonably withheld or delayed, to any other party. Provided Tenant is not in default under the terms of this Lease, any rent collected by Tenant in connection with an assignment or a sublease, shall be and remain the property of Tenant, whether or not equal to, less than or in excess of the Basic Rent and Additional Charges payable hereunder; however, any true profits from rents collected by Tenant shall be shared between Tenant and Landlord on an equal basis. For purposes of this Lease, true profits shall mean the difference between the rent collected by Tenant from an assignee or sublessee for any portion of the Leased Premises and the rent paid by Tenant to Landlord for such portion of the Leased Premises under the terms hereof less any third party expenses incurred in connection with the assignment or subletting." 8. Default Provisions: 8.1. Section 16(a)(3) clause (ii) is deleted in its entirety and the following is inserted in lieu thereof: ". . . (ii) in the case of any such neglect or failure which cannot with due diligence and in good faith be cured within 30 days, within such additional period, if any, as may be reasonably required to cure such default with due diligence and in good faith provided that Tenant commences the curing of the same within the 15-day period and completes the cure within 120 days after Landlord's notice to Tenant (it being intended that, in connection with any such default which is not susceptible of being cured with due diligence and in good faith within 30 days, the time within which the Tenant is required to cure such default shall be extended for such additional period as may be necessary for the curing thereof with due diligence and in good faith but in no event longer than 120 days from the date of Landlord's notice), it being agreed that any default which is not cured within 120 days shall become an Event of Default;" 8.2. The following language is deleted from the first clause of Section 16(d): "If Landlord terminates this Lease pursuant to Section 16(b)," and the following language is inserted 5845EML.jjm 05/10/96 -4- in lieu thereof: "If Landlord terminates this Lease pursuant to Section 16(c);". 8.3. Section 16(e) is deleted in its entirety and the following is inserted in lieu thereof: "(e) Liquidated Damages. If Landlord terminates this Lease pursuant to Section 16(c), Landlord shall have the right, at any time, at its option, to require Tenant to pay to Landlord, on demand, as liquidated and agreed final damages in lieu of Tenant's liability under Section 16(d), an amount equal to the Basic Rent and Additional Charges, computed on the basis of the then-current annual rate of Basic Rent and Additional Charges and all fixed and determinable increases in Basic Rent which would have been payable from the date of such demand to the date when this Lease would have expired, if it had not been terminated, discounted to the date of such demand at an annual rate of interest equal to the then-current yield on actively traded U.S. Treasury bonds with July-December, 2006 maturities, as published in the Federal Reserve Statistical Release for the week before the date of such termination, plus 125 basis points. Upon payment of such liquidated and agreed final damages, Tenant shall be released from all further liability under this Lease with respect to the period after the date of such demand. If, after Tenant pays such liquidated damages, Landlord, in its sole discretion, relets the Leased Premises, or any part thereof, Landlord shall reimburse Tenant for Basic Rent and Additional Charges actually collected and allocable to the Leased Premises or to the portions thereof relet by Landlord, prior to the expiration of the original term of the Lease, less the costs and expenses of reletting including, but not limited to, reasonable attorneys' fees, brokers' fees, and the costs of obtaining possession of the Leased Premises, of maintaining the Leased Premises while vacant, and repairing and remodeling the Leased Premises in order to obtain new tenants. Notwithstanding anything herein to the contrary, the provisions of the preceding sentence shall not be applicable after Landlord has defaulted in the performance of any Mortgage obligation and Mortgagee has exercised any of its remedies." 9. City Mortgage: Section 20(c) is deleted in its entirety and the following language is inserted in lieu thereof: "(c) City Mortgage. Subject to the requirement of subsection (a) above, this Lease shall be subject and subordinate to the Mortgage from the Landlord to the Mayor and City Council of Baltimore in the original principal amount of 5845EML.jjm 05/10/96 -5- Two Million Five Thousand Eight Hundred Seventy-Eight Dollars and Seventy-five Cents ($2,005,878.75), intended to be recorded among the Land Records of Baltimore City, and to all renewals, modifications, replacements and extensions thereof. Tenant agrees that, within 10 days after receipt of request therefor from Landlord, it will, from time to time, execute, acknowledge and deliver any instrument or other document required by said Mortgagee to subordinate this Lease to the herein described Mortgage." 10. Parking: Section 29 shall be deleted in its entirety and the following language is inserted in lieu thereof: "29. Parking. Tenant shall be guaranteed parking within the Parking Facilities for 225 cars for the Term. During the first five Lease Years, not less than the number of spaces set forth below (the "Guaranteed Surface Spaces") will be guaranteed surface lot spaces:
Lease Year Guaranteed Surface Spaces ---------- ------------------------- 1 175 2 175 3 175 4 165 5 155
The remaining spaces (i.e., the difference between the number of surface spaces which the Landlord supplies and the guaranteed 225 spaces) shall be provided within a structured deck or parking garage within the Inner Harbor East project. Of these structured spaces, at least 35 shall be located in the structured parking being constructed on Parcels R and Q (the "On-Site Garage"), some of which may be designated for "Sylvan Visitor Parking Only" or similar wording. In the event Landlord, during the first five Lease Years, is unable to fully satisfy its obligation to provide the Guaranteed Surface Spaces as herein required, Landlord shall, in lieu thereof, provide Tenant at the rates set forth in paragraph (d)(i) below a sufficient number of structured parking surfaces to fulfill the Guaranteed Surface Space requirement. Within the 225 parking space guarantee, Tenant shall have the option of renting, within the On-Site Garage, (i) at the rates set forth in paragraphs (d)(ii)(l) and (d)(iii)(1), up to 25 spaces, and (ii) at market rates, up to 10 additional spaces, 5845EML.jjm 05/10/96 -6- some or all of which spaces under (i) and (ii) may be designated, at Tenant's option, for "Sylvan Visitor Parking Only" or similar wording. (a) All Parking Facilities shall either be paved, striped and fenced surface lots, that comply with all Legal Requirements and are consistent with the Security Plan described on Exhibit G, or are contained within structured deck or garage parking. If the Parking Facilities are on surface lots, Tenant's spaces shall be consolidated (as opposed to dispersed) in a cohesive grouping, and marked with signs so as to minimize the chance of usage by unauthorized parkers. Tenant may, at Tenant's expense, require Landlord to designate with signage the restriction of a portion of such spaces to "Sylvan Parking Only" or similar wording. (b) Attached as Exhibit I is a plat showing the Inner Harbor East subdivision and identifying the location of Parcels B, C and P. Tenant's surface parking area shall initially be located on an undeveloped portion of Parcel P in closest proximity to the Building. Landlord has procured the agreement of the owner of Parcel P to allow parking on this parcel as evidenced by its joining in the execution of this Lease. Tenant's parking area shall be designated as reserved for the use of Tenant's employees and visitors. Tenant shall be responsible for assuring that only authorized persons park in Tenant's parking area. Until Parcel P is developed, Tenant shall have priority over all persons except other tenants of the Building, their employees and invitees with respect to use of the surface spaces located on Parcel P. This priority is limited to the number of Guaranteed Surface Spaces. As Parcel P is developed, Landlord shall relocate Tenant's Guaranteed Surface Spaces to surface lots, if available, on undeveloped portions of Parcels B or C that meet the requirements of paragraph (a) above or, if not available, to structured decks or parking garages at the rates and subject to the conditions set forth in paragraph b(i) below: (i) During the first five Lease Years, (1) all replacement spaces up to the number of Guaranteed Surface Spaces shall be subject to the rates set forth in paragraph (d)(i) below, (2) all replacement spaces in excess of number of Guaranteed Surface Spaces up to but not exceeding 190 spaces, shall be at the rates set forth in paragraph (d)(i) for surface spaces, and at the rates set forth in paragraph (d)(ii)(1) for structured parking, and (3) except for replacement spaces under clause (1) or clause (2) above, spaces within the On-Site Garage shall be subject to the rates set forth in paragraph (d)(ii)(1) 5845EML.jjm 05/10/96 -7- as to the first 25 spaces and market rates for the balance. (ii) During Lease Years 6 through 10, Tenant shall have at least 150 spaces which are either on surface lots or in structured parking if the Landlord is unable to provide the 150 surface spaces. These 150 spaces are subject to the surface space rate set forth in paragraph (d)(iii)(1); provided however, that the 150 number shall be reduced by that number, up to 25, of parking spaces which are within the On-Site Garage and which are subject to the rates set forth in paragraph (d)(iii)(l) for structured parking. All other spaces, whether on surface lots or within structured parking, shall be subject to the rates in paragraph (d) (iii) (2) . (iii) No parking spaces shall be relocated until substitute spaces, meeting the standards of paragraph (a) above, have been completed and are available for immediate use. (c) Landlord shall provide Tenant with at least six (6) months written notice in the event any of the spaces need to be relocated or are no longer available. In the case of relocation, the notice shall specify the number of spaces to be relocated, the new location, any change in the rent (where permitted by the terms hereof) and the date when the new spaces will be ready for use by Tenant. (d) The rates to be paid by Tenant for parking during the Term shall be as follows: (i) During the first five Lease Years, assuming the use of 190 surface parking spaces, the parking rates payable by Tenant shall be as follows:
Lease Year Annual Cost for Monthly 190 Surface Spaces Parking Fee 1 $0 $0 2 $45,000 $3,750.00 3 $57,500 $4,791.66 4 $68,000 $5,666.66 5 $80,000 $6,666.66
In the event of an election by Tenant under paragraph (i) below to increase (but not above 190) or decrease the number of surface parking spaces (or replacements thereof), the rate shall be adjusted as follows: 5845EML.jjm 05/10/96 -8-
Lease Year Cost Per Day Yearly Adjustment Monthly Per Space Adjustment 1 $0.00 $ 0.00 $ 0.00 2 $0.25 $ 62.50 $ 5.21 3 $0.50 $125.00 $10.42 4 $0.75 $187.50 $15.63 5 $1.00 $250.00 $20.84
Any increase in the number of surface parking spaces above 190, if available, shall result in the following adjustments for each space above 190:
Lease Year Cost Per Day Yearly Adjustment Monthly Per Space Adjustment 1 $2.25 $562.50 $46.88 2 $2.25 $562.50 $46.88 3 $2.50 $625.00 $52.08 4 $2.75 $687.50 $57.29 5 $3.00 $750.00 $62.50
(ii) During the first five Lease Years, Tenant shall pay the following Parking Fees for structured parking spaces, other than for structured parking which is subject to the terms of paragraph (b)(i): (1) The first 25 structured spaces in the On Site Garage, and any other spaces located within parking structures pursuant to paragraph (b)(i) above shall be at 75% of current market rent but in no event shall the cost to Tenant exceed the caps hereinafter set forth:
Cap Cap Per Structured Annual Cost Per Lease Year Space Per Day Structured Space 1 $5.00 $1,500 2 $5.15 $1,545 3 $5.30 $1,590 4 $5.46 $1,638 5 $5.63 $1,689
(2) Unless otherwise provided herein, the remaining structured spaces shall be at current market rent. (3) The fee structure shall be converted to a monthly payment by application of the following 5845EML.jjm 05/10/96 -9- formula: Daily rate (either at market, 75% of market or the "Cap Rate", whichever is applicable) times 5 times 50 divided by 12. (iii) For Lease Years 6 through 10, Tenant shall be provided with parking as follows: (1) Up to one hundred fifty (150) surface spaces shall be offered to Tenant at the discounted rates hereinafter set forth. The one hundred fifty surface spaces shall be reduced by the number of structured parking spaces, up to 25, which Tenant rents within the On-site Garage (the "Discounted Surface Spaces"). The Discounted Surface Spaces shall be offered to Tenant at a rate equal to 75% of the current market rent for the surface spaces but in no event shall the cost exceed the caps hereinafter set forth for surface spaces. The first 25 parking spaces within the On-Site Garage shall be offered to Tenant at a rate equal to 75% of the current market rent for structured spaces but in no event shall the cost of such 25 spaces exceed the caps hereinafter set forth for structured spaces. The remaining 10 parking spaces available to Tenant within the On-Site Garage shall be at market rates. If the Landlord is unable to provide all of the Discounted Surface Spaces, Landlord shall offer structured parking spaces, if available, for the difference between the Discounted Surface Spaces and the actual number of surface spaces provided. Such structured spaces shall be offered at rates equal to 75% of current market rent for structured spaces but in no event greater than the caps hereinafter set forth for structured spaces.
Cap Per Surface Space Cap Per Structured Per Day for Space Per Day for Lease Year Discounted Surface Spaces Structured Spaces 6 $2.90 $5.80 7 $2.99 $5.97 8 $3.07 $6.15 9 $3.17 $6.33 10 $3.26 $6.52
(2) All other spaces, in excess of the 150 spaces described above, shall be offered to Tenant at market rates without caps. In the event the parties are unable to mutually agree on the market 5845EHL.jjm 05/10/96 -10- rate, then same shall be determined by using the methodology set forth in Section 35(d) hereof. (3) The fee structure shall be converted to a monthly payment by application of the following formula: Daily rate (either at market, 75% of market or the "Cap Rate", whichever is applicable) times 5 times 50 divided by 12. (e) Tenant agrees to use the Parking Facilities for the parking of passenger automobiles, sport-utility vehicles and vans and for no other purposes. (f) If Tenant rents more space in the Building or on the Inner Harbor East site, Tenant may, to the extent they are available, rent, at market rates, a proportionate number of additional surface and structured parking spaces. The proportion or ratio that shall apply to any additional space rented in the Building by Tenant shall be 3.0 spaces for each 1,000 square feet of Rentable Area leased. (g) Parking rates during any renewal periods shall be provided at market rates. (h) The Parking Fees set forth in this section shall be Additional Charges and shall be paid by Tenant on a monthly basis together with the Basic Rent. (i) Tenant shall notify Landlord in writing on or before July 1, 1996 as to how many of the 225 guaranteed parking spaces it wishes to rent as of the Lease Commencement Date as well as the breakdown between surface spaces and structured spaces. Within ten (10) Business Days after receipt of such notice Landlord shall notify Tenant as to the availability and location of such spaces. Thereafter, Tenant shall notify Landlord in writing at least thirty (30) days before the first day of each calendar quarter of any change in the number of parking spaces or in the mix between surface and structured spaces it wishes to rent for the three (3) month period. Within ten (10) Business Days after receipt of such notice Landlord shall notify Tenant as to the availability, location and any applicable rent adjustment." 11. Additional Expansions Options: Section 36(c) is deleted in its entirety and the following shall be inserted in lieu thereof: "(c) If Tenant has given Landlord twelve (12) months prior written notice of its intent to lease additional space in the Building, Tenant shall rent all (but not less than all) 5845EHL.jjm 05/10/96 -11- space on the 3rd Floor of the Building which is not already part of the Leased Premises (an estimated 15,000 rentable square feet) after the fifth Lease Year upon the termination of any leases entered into by Landlord for such space, if any, but in no event later than twelve (12) months after the end of the fifth Lease Year. The Basic Rent for any additional space in the Building leased by Tenant under the terms of this provision shall be an amount equal to fair rental value as determined pursuant to Section 35, and the commencement date and all concessions relating to Tenant improvements shall be on terms and at rates reflective of the market and parking, if available, shall be at market rates. All other terms and conditions of this Lease shall apply other than the rent abatement provided in Section 3(j). The parties agree to execute an appropriate amendment to this Lease evidencing their agreement with respect to the additional space. Notwithstanding the foregoing, if Tenant exercises its option to rent additional space pursuant to this paragraph, the space shall be made available to Tenant only upon the termination of any pre-existing leases entered into by Landlord for the space but in no event shall such leases terminate later than twelve (12) months after the expiration of the fifth Lease Year." 12. Tenant's Allowance: Replace the entire Section 39 with the following: "Landlord shall give Tenant an allowance to cover the cost of Tenant's Work actually performed in an amount not to exceed the product obtained by multiplying $15.00 by the Rentable Area, or a total allowance of $1,384,995 ("Tenant's Regular Allowance"). Tenant's Regular Allowance shall be allocated for specific work performed over the four (4) floors of the Leased Premises (including the Expanded Leased Premises) as follows: 2nd Floor 427,290 3rd Floor 165,630 4th Floor 427,290 5th Floor 364,785
The Tenant's Regular Allowance shall be paid by Landlord to Tenant within thirty (30) days after completion of the Tenant Work for a given floor and presentation of invoices from general contractors, subcontractors and materialmen which invoices describe with specificity the work performed, the floor on which the work has been performed or the materials supplied and the cost of such work or materials." 5845EHL.jjm 05/10/96 -12- 13. Deletion of Ground Lease: The parties acknowledge that Landlord is acquiring the Land in fee simple from the City of Baltimore, and that references to a "ground lease" shall no longer apply. Thus, Section 40 is hereby deleted. 14. Exhibits: Exhibit A-1 is added and attached hereto. The parties agree that the construction of the Expanded Leased Premises shall be in accordance with Exhibit B unless otherwise provided in this Amendment. 15. Tenant's Right to Terminate: Section 41 of the Original Lease shall be deleted in its entirety and the following language is inserted in lieu thereof: "41. Tenant's Right to Terminate. In the event the delivery by Landlord of the Leased Premises in a Floor Ready Condition has not occurred for whatever reason and regardless of force majeure by April 1, 1997. Tenant shall have the right, at its discretion, to terminate this Lease Agreement upon written notice to Landlord." 16. MIDFA Provisions: The following language is added as Section 42. "42. Certain Lender Requirements. During the Term of this Lease Tenant agrees to use all reasonable efforts to: (a) Furnish to the Maryland Industrial Development Financing Authority (the "Authority"), upon written request of either the Landlord or the Authority, one copy of each Annual Report on Form 10-K, and each Quarterly Report on Form 10-Q and each notice or report sent by Tenant to stockholders generally . It is agreed and understood that no request shall be made earlier than thirty (30) days prior to the date such material is made available to the general public and that the material shall not be provided to the Landlord or the Authority prior to when it is made available to the general public. (b) Upon request, but not more frequently than twice annually, supply the approximate employment count of Tenant at the Building to the Authority. (c) Comply with laws prohibiting discrimination on the basis of (i) political or religious opinion or affiliation, marital status, race, color, creed, or national origin, or (ii) sex or age, except when sex or age constitutes a bona fide occupational qualification, or (iii) the physical or mental disability of a qualified individual with a disability." 5845EHL.jjm 05/10/96 -13- 17. General: 17.1. In all other respects, the Lease shall remain in full force and effect. 17.2. This Amendment shall be binding upon the parties hereto and their respective successors, and assigns. 17.3. This Amendment shall be interpreted and construed in accordance with the laws of the State of Maryland. [signature page follows] 5845EHL.jjm 05/10/96 -14- WITNESS the hands and seals of the parties hereto as of the day and year first above written. ATTEST/WITNESS: HARBOR EAST-OFFICE, LLC LANDLORD By: The Paterakis/Tsakalos Family Partnership LLP Administrative Member /s/ Jeri Zlatkowski By /s/ William Paterakis - ------------------- -------------------------- (SEAL) Name: William Paterakis Partner: /s/ Jeri Zlatkowski By /s/ Nicholas Tsakalos - ------------------- -------------------------- (SEAL) Name: Nick Tsakalos Partner: ATTEST/WITNESS: SYLVAN LEARNING SYSTEMS, INC. TENANT /s/ Karen L. Lawson By: /s/ John K. Hoey - ------------------- ----------------------------- (SEAL) John K. Hoey The undersigned joins herein solely to confirm that it will make Parcels P, B & C available to Landlord to satisfy the parking requirements described Section 29(b) hereof. HARBOR EAST LIMITED PARTNERSHIP By: The Paterakis/Tsakalos Family Partnership LLP General Partner By /s/ William Paterakis -------------------------- (SEAL) Name: William Paterakis Partner: By /s/ Nicholas Tsakalos -------------------------- (SEAL) Name: Nick Tsakalos Partner: 5845EHL.jjm 05/10/96 -15- EXHIBIT A-1 SECOND FLOOR FLOOR PLAN LEVEL 3 INNER HARBOR EAST APARTMENTS EXHIBIT A-1 THIRD FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS EXHIBIT A-1 FOURTH FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS -18- EXHIBIT A-1 FIFTH FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS 11/11/96 SECOND AMENDMENT OF LEASE THIS SECOND AMENDMENT OF LEASE ("Second Amendment") is made as of this _____ day of __________, 1996, by and between HARBOR EAST OFFICE, LLC, formerly known as HARBOR EAST PARCEL G - OFFICE, LLC (hereinafter referred to as "Landlord") and SYLVAN LEARNING SYSTEMS, INC. (hereinafter referred to as "Tenant"). R E C I T A L S A. Landlord and Tenant entered into a lease dated as of August 24, 1995 (hereinafter referred to as the "Original Lease") and an Amendment of Lease dated as of May 13, 1996 (hereinafter referred to as the "First Amendment") for portions of the Building located at 1000 Lancaster Street, Baltimore City, Maryland. B. The parties hereto desire to amend the Original Lease and First Amendment in order to lease additional space to Tenant on the terms hereinafter set forth. NOW, THEREFORE, WITNESSETH for good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto agree as follows: 1. Defined Terms: Terms defined in the Original Lease and the First Amendment shall have the same meaning for purposes of this Amendment except for the following definitions which shall supersede the versions contained in the Original Lease and the First Amendment: 1.1. Additional Charges: All amounts payable by Tenant to Landlord under this Lease other than Basic Rent. All Additional Charges shall be deemed to be additional rent and all remedies applicable to the non-payment of Basic Rent shall be applicable thereto. 1.2. Advance Rent: $65,353 representing the Basic Rent for the first full month of the Term after the Lease Commencement Date, which Tenant shall pay to Landlord upon execution of this Second Amendment which Landlord shall credit against the corresponding monthly installment of Basic Rent. 1.3. Basic Rent: The amount of rent for the Leased Premises due from Tenant to Landlord each month is as follows:
Months Monthly Rent ------ ------------ 1* First Full Month $53,750 2 $65,353
14330rrk.6pl 3 $72,110 4-12 $110,915 13-24 $117,035 25-36 $121,545 37-48 $125,695 49-60 $129,070 61-72 $152,921 73-84 $156,833 85-96 $161,225 97-108 $164,848 109-120 $168,953
* If the Commencement Date is other than the first day of the month, the rent for the period from the Commencement Date until the last day of that month shall be calculated on a prorated basis as provided in Section 3(a) of this Second Amendment and said rent shall be due and payable on the Commencement Date. 1.4. Building Rentable Area: The total net rentable area in the Building is 132,598 square feet.: 1.5. Leased Premises: The area located on the 1st, 2nd, 3rd, 4th and 5th Floors of the Building outlined in red on the floor plans attached as Exhibits A-1 through A-5 to this Second Amendment. 1.6. Rentable Area: The total rentable area is 108,164 square feet, as hereinafter set forth:
Sylvan Retail Rentable Space ---------------------------- 1st Floor 9,345 square feet Original Rentable Area (Office) ------------------------------- 2nd Floor 28,486 square feet 3rd Floor 11,042 square feet 4th Floor 28,486 square feet 5th Floor 24,319 square feet Additional Rentable Space (Office) ---------------------------------- 3rd Floor 6,486 square feet
1.7. Operating Expenses: The aggregate of all Office Operating Expenses, Retail Operating Expenses and Shared Operating Expenses. Operating Expenses shall not include financing or mortgage costs; depreciation expense; advertising for vacant space or building promotion; leasing commissions; executive salaries; the cost of tenant improvements; ground rent; or legal fees for leasing 14330rrk.6pl -2- vacant space in the Building or enforcing Landlord's rights under leases with tenants for space in the Building. In addition, Operating Expenses shall not include the following: (i) fees for licenses and permits obtained by or for Landlord in connection with any non-office use activity by a tenant within the Building, such as retail or commercial uses; (ii) management fees paid to Affiliates of Landlord or other related Persons, provided however, that such fees can be included in Operating Expenses to the extent they do not exceed those paid by other Peer Group Buildings; (iii) expenses not generally treated as operating expenses under generally accepted accounting principles except as specifically set forth herein; (iv) any repairs or improvements made (A) by third parties to correct defects in prior construction, (B) to bring the Building in compliance with Legal Requirements applicable prior to the Lease Rental Commencement Date or (C) to cure Landlord's default under the terms of this Lease or any other space lease with a tenant in the Building; (v) increases in salary and benefits to employees of Landlord which are in excess of the prevailing increases within downtown Baltimore; (vi) expenses properly treated as indirect corporate or of f ice overhead for other sites under generally accepted principles of office building management; (vii) costs of renovating, decorating or improving space for tenants or other occupants of the building, or vacant space; (viii) expenses in connection with services provided to tenants which are not consistent with services provided to all other tenants; (ix) interest and penalties on taxes, utility bills and other costs due to Landlord's negligence; (x) fees paid to Tenant or other tenants in the Building as reimbursement for audit expenses incurred due to errors by Landlord in the calculation of Operating Expenses; and (xi) costs incurred by Landlord in challenging the application of Legal Requirements, or fees and expenses incurred or payable as a result of such application provided, however, that such costs can be included as Operating Expenses if 14330rrk.6pl -3- Landlord reasonably expects the resulting savings arising from such challenge to exceed the cost of the challenge. 1.8. Security Deposit: The sum of $110,915. 1.9. Tenant's Proportionate Share: When used in conjunction with the term "Operating Expenses", such phrase shall mean the combination of Tenant's Office Proportionate Share of Office Operating Expenses and Tenant's Retail Proportionate Share of Retail Operating Expenses. In addition, the following definitions shall be added to Section l(b) of the Original Lease: 1.10. Additional Leased Space: The additional area consisting of 5,491 square feet located on the 3rd Floor of the Building not previously leased pursuant to the Original Lease and First Amendment. 1.11. Additional Rentable Space: The net rentable area of the Additional Leased Space is 6,486 square feet. 1.12. Building Space: The net square footage of the Building which is 127,229 square feet. 1.13. Office Operating Expenses: The aggregate of all reasonable and customary costs and expenses incurred on an accrual basis by Landlord in connection with the management, operation, maintenance, repair, cleaning, safety and administration of the Office Space, including employees' wages, salaries, welfare and pension benefits, other fringe benefits and payroll taxes for on site employees; telephone service; painting of Common Areas of Office Space; repairs and maintenance to Office Space; the cost of obtaining and providing electricity; janitorial and cleaning supplies; cleaning and janitorial services; window cleaning; service contracts for the maintenance of elevators, boilers, HVAC and other mechanical, plumbing and electrical equipment; sales and use taxes payable in connection with tangible personal property and services purchased for the management, operation, maintenance, repair, cleaning, safety and administration of the Office Space; accounting fees relating to the determination of Office Operating Expenses and Office Operating Expense Increases and the preparation of statements required by tenants' leases; purchase and installation of indoor plants in the Common Areas of the Office Space; and all other expenses now or hereafter reasonably and customarily incurred in connection with the operation, maintenance, and management of Peer Group Buildings. If Landlord makes an expenditure for a capital improvement to the Office Space, whether by installing energy conservation or labor-saving devices to reduce Office Operating Expenses, to comply with Legal Requirements or otherwise, and if, under generally accepted accounting principles, 14330rrk.6pl -4- such expenditure is not a current expense, then, except as otherwise provided in Section 1.21, the cost thereof shall be amortized over a period equal to the useful life of such improvement, determined in accordance with generally accepted accounting principles, and the amortized cost allocated to each calendar year during the Term, together with an imputed interest amount calculated on the unamortized portion thereof using an interest rate equal to the prime rate of NationsBank, N.A. at the time of the expenditure, shall be treated as an Office Operating Expense. Amounts payable by tenants of the Office Space for after-hours heating or air conditioning and for excess electrical usage, recoveries of expenses and other separate charges made to tenants of the Office Space for special services shall be credited against Office's Operating Expenses in computing the amount thereof. In addition, the amount of Office's Pro Rata Portion of Shared Operating Expenses shall be included as an Office Operating Expense. 1.14. Office's Pro Rata Portion of the Shared Operating Expenses: The percentage which the Office Space is of Building Space (i.e. 106,862 square feet / 127,229 square feet = 84%). 1.15. Office Rentable Area: The total net rentable area in the Office Space is 109,777 square feet. 1.16. Office Space: The total area located on the 2nd, 3rd, 4th and 5th floors of the Building is 106,826 square feet. 1.17. Original Rentable Area: The net rentable area of the Original Leased Premises is 92,333 square feet as hereinafter set forth: 2nd Floor 28,486 square feet 3rd Floor 11,042 square feet 4th Floor 28,486 square feet 5th Floor 24,319 square feet
1.18. Retail's Pro Rata Portion of Shared Operating Expenses: The percentage which the Retail Space is of Building Space (i.e., 20,403 square feet / 127,229 square feet = 16%). 1.19. Retail Rentable Area: The total net rentable area in the Retail Space, determined by Landlord's architect, to be 22,821 square feet. 1.20. Retail operating Expenses: The aggregate of all reasonable and customary costs and expenses incurred on an accrual basis by Landlord in connection with the management, operation, maintenance, repair, cleaning, safety and administration of the Retail Space, including employees' wages, salaries, welfare and pension benefits, other fringe benefits and payroll taxes for on- 14330rrk.6pl -5- site employees; painting of Common Areas of Retail Space; repairs and maintenance of Retail Space; window cleaning; sales and use taxes payable in connection with tangible personal property and services purchased for the management, operation, maintenance, repair, cleaning, safety and administration of the Retail Space; accounting fees relating to the determination of Retail Operating Expenses and Retail Operating Expense Increases and the preparation of statements required by tenants' leases; and all other expenses now or hereafter reasonably and customarily incurred in connection with the operation, maintenance, and management of other first class retail space. If Landlord makes an expenditure for a capital improvement to the Retail Space, whether by installing energy conservation or labor-saving devices to reduce Retail Operating Expenses, to comply with Legal Requirements or otherwise, and if, under generally accepted accounting principles, such expenditure is not a current expense, then, except as otherwise provided in Section 1.21, the cost thereof shall be amortized over a period equal to the useful life of such improvement, determined in accordance with generally accepted accounting principles, and the amortized cost allocated to each calendar year during the Term, together with an imputed interest amount calculated on the unamortized portion thereof using an interest rate equal to the prime rate of NationsBank, N.A. at the time of the expenditure, shall be treated as a Retail Operating Expense. Recoveries of expenses and other separate charges made to tenants of the Retail Space for special services shall be credited against Retail Operating Expenses in computing the amount thereof. In addition, the amount of Retail's Pro Rata Portion of Shared Operating Expenses shall be included as a Retail Operating Expense. 1.21. Shared Operating Expenses: The aggregate of all reasonable and customary costs and expenses incurred on an accrual basis by Landlord in connection with the management, operation, maintenance, repair, cleaning safety and administration of the Building and Land not included in Office Operating Expenses and Retail Operating Expenses including Real Estate Taxes; exterminating services; detection and security services; sewer rents and charges; premiums for fire and casualty, liability, workmen's compensation, sprinkler, water damage and other insurance; building supplies; uniforms and dry cleaning; trash removal; snow removal; water and other public utilities; landscaping maintenance; management fees, whether or not paid to any Person having an interest in or under common ownership with Landlord; fees paid in connection with the challenge of any proposed assessment which would result in an increase in the Real Estate Taxes; provided, Landlord shall only pursue such challenges if it reasonably expects the resulting savings to exceed the cost of such challenge; purchase and installation of additional landscaping not included in the original landscaping plan for the Building and replacement or substitute landscaping. The cost of all repairs, replacements and improvements required to maintain the 14330rrk.6pl -6- Building in a first class condition other than those (i) excluded under Section 1.21 of this Second Amendment; (ii) related to structural or building systems; or (iii) serving exclusively either the Office Space or Retail Space shall be treated as a Shared Operating Expense even if the cost would otherwise be classified as a capital expenditure under generally accepted principles. Refunds of Real Estate Taxes (reduced by Landlord's reasonable expenses in obtaining such refunds); recoveries of water, sewer or other utility charges separately metered or submetered and collected by Landlord; and (to the extent that Shared Operating Expenses include the cost of any repair or reconstruction work) the amount of any insurance recoveries (net of the costs of collection) all determined on an accrual basis shall be credited against the Shared Operating Expenses in computing the amount thereof. 1.22. Retail Space: The total area located on the 1st Floor of the Building is 20,403 square feet. 1.23. Sylvan Retail Rentable Space: The Sylvan Retail Space plus a fifteen percent (15%) loss factor is 9,345 square feet. 1.24. Sylvan Retail Space: The area located on the 1st Floor of the Building as outlined in red on the attached Exhibit A1 to this Second Amendment is 8,126 square feet. 1.25. Tenant's Office Proportionate Share: The percentage (rounded to two (2) decimal points) from time to time which the Original Rentable Space and the Additional Rentable Space is of the Office Rentable Space (i.e.: 92,333 + 6,486 / 109,777 = 90.01%). 1.26. Tenant's Retail Proportionate Share: The percentage (rounded off to two (2) decimal points) from time to time which the Sylvan Retail Space is of the total number of square feet of leased Retail Space on the first floor of the Building (i.e., 39.83% assuming all of the Retail Space is leased [8,126 square feet / 20,403 square feet]). In addition, the definition of Rent Per Square Foot shall be deleted from Section l(b) of the Original Lease. 2. Section 2(a) of the Original Lease is deleted in its entirety and the following is inserted in lieu thereof: "(a) The completion of the Leased Premises shall be done in accordance with the provisions of Exhibit B to this Lease; however, Landlord's obligations with respect to the completion of the Sylvan Retail Space shall be limited to those specifically set out in Exhibit B-1 to this Lease." 14330rrk.6pl -7- 3. The first and second sentence of Section 3(a) of the Original Lease are deleted in their entirety and the following is inserted in lieu thereof: "(a) Tenant shall pay Basic Rent in monthly installments in advance commencing on the first day of the first month after the Lease Commencement Date and thereafter on the first day of each month during the term. If the Lease Commencement Date is not the first day of a month, Basic Rent in the amount of $99,312 for the month in which the Lease Commencement Date occurs shall be pro-rated on the basis of the number of days between the Lease Commencement Date and the end of that month." 4. The preface for Section 3(b) of the Original Lease is deleted in its entirety and the following is inserted in lieu thereof: "(b) Payments of Operating Expenses: Tenant shall pay as additional rent Tenant's Office Proportionate Share of Office Operating Expenses and Tenant's Retail Proportionate Share of Retail Operating Expenses for each calendar year, commencing with the Initial Calendar Year." In addition, each reference in Section 3(b) of the Original Lease to "Tenant's Operating Expenses" shall be replaced by "Tenant's Proportionate Share of Operating Expenses". 5. Section 3(h) of the Original Lease and Section 3(j) as added by the First Amendment shall be deleted. 6. Services for Retail Space and Janitorial/Cleaning Services for Retail Space: Add as new Sections 5(k) and (1) the following: "(k) Retail Space: Notwithstanding anything herein to the contrary, Landlord's obligation for services and utilities for the Sylvan Retail Space shall be limited to the following: (1) Hot and cold water to Sylvan Retail Space; (2) Electricity to Sylvan Retail Space for lighting purposes and operation of ordinary equipment consisting of an average of 5 watts per square foot of Retail Rentable Space; (3) A security access system for the Common Areas of the Building; and (4) Sufficient access cards to be used with a security system, to provide each employee of Tenant with 14330rrk.6pl -8- a card and a system for disarming and replacing cards as employees leave or are replaced. (l) Janitorial/Cleaninq Services For Retail Space: Landlord shall only provide janitorial and cleaning services for the Sylvan Retail Space, if requested by Tenant, for an agreed fee. 7. Parking: Section 29 shall be deleted in its entirety and the following language is inserted in lieu thereof: "29. Parking. Tenant shall be guaranteed parking within the Parking Facilities for 265 cars for the Initial Term. In the event Tenant exercises the renewal option provided for in Section 35, Tenant shall be guaranteed parking within the Parking Facilities for 150 cars for the Renewal Period. Of this guaranteed number, 40 shall be located in the structured parking being constructed on Parcels R and Q (the "On Site Garage"), some of which may be designated for "Sylvan Visitor Parking Only" or similar wording. (a) All Parking Facilities shall either be paved, striped and fenced surface lots, that comply with all applicable Legal Requirements and are consistent with the Security Plan described on Exhibit G, or are contained within structured deck or garage parking. If the Parking Facilities are on surface lots, Tenant's spaces shall be consolidated (as opposed to dispersed) in a cohesive grouping, and marked with signs so as to minimize the chance of usage by unauthorized parkers. Tenant may, at Tenant's expense, require Landlord to designate with signage the restriction of a portion of such spaces to "Sylvan Parking Only" or similar wording. (b) Attached as Exhibit I is a plat showing the Inner Harbor East subdivision, and identifying the location of Parcels B, C and P. Tenant's surface parking area shall initially be located on an undeveloped portion of Parcel P in closest proximity to the Building. Landlord has procured the agreement of the owner of Parcel P to allow parking on this parcel as evidenced by its joining in the execution of this Lease. Tenant's parking area shall be designated as reserved for the use of Tenant's employees and visitors. Tenant shall be responsible for assuring that only authorized persons park in Tenant's parking area. Until Parcel P is developed, Tenant shall have priority over all persons other than other tenants of the Building, their employees and invitees with respect to the use of spaces on 14330rrk.6pl -9- Parcel P. As Parcel P is developed, Landlord shall relocate Tenant's surface spaces to surface lots, if available, on undeveloped portions of Parcels B, C or P, that meet the requirements of paragraph (a) above, or if not available, to structured decks or parking garages, subject to the requirement that no parking spaces shall be relocated until substitute spaces, meeting the standards of paragraph (a) above, have been completed and are available for immediate use. No such relocation shall occur without at least thirty (30) days prior notice to Tenant. (c) Tenant agrees to use the Parking Facilities for the parking of passenger automobiles, sport and utility vehicles and vans and for no other purposes. (d) During the second Lease Year, Landlord, in its discretion, may, with at least thirty (30) days written notice to Tenant, elect to relocate up to ten (10) surface spaces to the On-Site Garage. For each space so relocated, the monthly rent shall be increased by $53.65. During Lease Years 3 through 10, Landlord in its discretion may, with at least thirty (30) days written notice to Tenant, relocate up to 12 additional surface spaces to On-Site Garage for a total of up to 62 One-Site Garage spaces. The monthly rent per space shall be increased as follows:
Per Space Lease Year Monthly Rent Increase ---------- --------------------- 3 $55.26 4 $56.91 5 $58.64 6 $60.38 7 $62.19 8 $64.06 9 $65.98 10 $67.96
(e) In the event no structured deck or garage parking, other than the On-Site Garage, are constructed within the Inner Harbor East subdivision as outlined on Exhibit I prior to the sixth Lease Year, the Basic Rent provided for in Section 3(a) above shall be reduced by Six Thousand Two Hundred Fifty Dollars ($6,250) for each month of the remaining term until such additional structured deck or garage parking is constructed and open for parking. 14330rrk.6pl -10- (f) In the event the On-site Garage is not open and operating on the Commencement Date, Landlord shall provide Tenant with a credit of $2.50 per work day (Monday through Friday) for each of the 40 guaranteed spaces which are to be located in the On-Site Garage. Said credit shall be applied against Tenant's Operating Expenses each month in the arrears until Tenant is notified that the On-Site Garage is open and operating. 8. Options to Extend Term: Replace Sections 35(a)(b)(c) and (d) with the following: "35. Options to Extend Term. (a) Renewal Options. Tenant shall have the option to renew the Term provided in Section l(b) (the "Initial Term") for two additional periods of five (5) years each (each of such additional periods being hereinafter referred to as a "Renewal Period"). Each renewal option shall be exercisable by Tenant by giving notice of the exercise of such renewal option to Landlord at least 365 days before the expiration of the Initial Term, in the case of the first renewal option, or at least 365 days before the expiration of the first Renewal Period, in the case of the second renewal option, except that if the Rent for the first Lease Year in a Renewal Period has not been determined by the last day on which the renewal option for such Renewal Period must be exercised in accordance with the procedure set forth in subsection (d), the period of time within which the Tenant may exercise the renewal option for such Renewal Period shall be extended until 30 days after the determination of the Rent for the first Lease Year in such Renewal Period. Time shall be of the essence in connection with Tenant's exercise of the renewal options. Tenant may not exercise the renewal option for either Renewal Period unless the Rent for such Renewal Period has previously been determined by agreement between Landlord and Tenant or in accordance with the procedure set forth in subsection (d). Tenant may not exercise the renewal option for the second Renewal Period unless Tenant has previously exercised the renewal option for the first Renewal Period in accordance with the provisions of this subsection. Tenant may not exercise the renewal option for either Renewal Period if an Event of Default has occurred and is continuing. If (i) the last day on which Tenant has the right to exercise a renewal option (the "Last Exercise Date"), occurs less than 365 days before the expiration of the Initial Term, in the case of the first renewal option, or less than 365 days before the expiration of the first Renewal Period, in the case of the second renewal option, and (ii) Tenant does not exercise the renewal option, the Term shall be extended until the last day of the month in which the 365th day after the Last Exercise 14330rrk.6pl -11- Date occurs; unless prior to the Last Exercise Date, Tenant advises Landlord that it will not exercise its applicable renewal option. For purposes of determining the Basic Rent payable during the extension provided by the preceding sentence, the Rent shall be 95% of the fair rental value of the Leased Premises plus 100% of the fair rental value (market rate) of the parking spaces guaranteed by Section 29, all as actually determined by the procedure described in subsection (d) with respect to the Renewal Period for which Tenant did not exercise its renewal option. If Tenant timely exercises the options to renew this Lease in accordance with the provisions of this Section, then the Term shall be extended accordingly. Except as otherwise expressly provided in this Section, each Renewal Period shall be upon the same terms, covenants and conditions set forth in this Lease with respect to the Initial Term and Tenant's obligations to pay Tenant's Proportionate Share of Operating Expenses pursuant to Section 3(b) shall continue without interruption during each Renewal Period and the extension provided for in the seventh sentence, except that there shall be no renewal options after the second Renewal Period. All references in this Lease to the "Term" shall include each Renewal Period for which Tenant shall have effectively exercised its renewal option. (b) Rent During Renewal Periods. (1) First Lease Year. If Tenant exercises the renewal option provided by subsection (a) to extend the Initial Term for a Renewal Period, the Rent for the first Lease Year in the Renewal Period shall be an amount equal to 95% of the fair rental value (per square foot) of the Leased Premises plus 100% of the fair rental value (market rate) of the parking spaces guaranteed by Section 29 as of the first day of the Renewal Period as determined by mutual agreement between Landlord and Tenant or by appraisal by one or more commercial real estate brokers in the manner provided in subsection (d). (2) Balance of First Renewal Period. For each Lease Year (or part of a Lease Year) thereafter during the Renewal Period, the Basic Rent for the area leased by Tenant shall be an amount equal to 102.40% of the Basic Rent for the immediately preceding Lease Year. (c) [Omitted]. (d) Method of Determining Rent. If Tenant desires to exercise the renewal option provided by subsection (a) to extend the Initial Term for a Renewal Period, and if Landlord and Tenant are unable mutually to agree on the Rent 14330rrk.6pl -12- for the first Lease Year in such Renewal Period at least 420 days before the end of the last Lease Year in the Initial Term, in the case of the first renewal option, or at least 420 days before the end of the last Lease Year in the first Renewal Period, in the case of the second renewal option, Tenant shall notify Landlord of its desire to determine the Rent by appraisal pursuant to this subsection not more than 450 days and not less than 420 days before the end of the last Lease Year in the Initial Term or the last Lease Year in the first Renewal Period, as the case may be, and in such notice Tenant shall designate the broker appointed by it. The giving of such notice shall not constitute an exercise of the option by Tenant. Within 20 days thereafter, Landlord shall, by notice to Tenant, designate a second broker. If Landlord does not so designate a second broker within the 20-day period, the first broker appointed by Tenant shall proceed to make his valuation, in which case the fair rental value of the Leased Premises including the fair rental value (market rate) of the parking spaces guaranteed by Section 29 for the first Lease Year in the Renewal Period shall be the amount determined by the first broker. Each broker shall make an independent determination of the fair rental value of the Leased Premises including the fair rental value (market value) of the parking spaces guaranteed by Section 29 for the first Lease Year in the applicable Renewal Period. If the two brokers so appointed agree on the fair rental value of the Leased Premises including the fair rental value (market value) of the parking spaces (market value) guaranteed by Section 29 within 15 days after the appointment of the second broker, the fair rental value of the Leased Premises including the fair rental value of the parking spaces guaranteed by Section 29 for the first Lease Year in the applicable Renewal Period shall be the amount determined by them. If the two brokers so appointed do not agree on the fair rental value of the Leased Premises including the fair rental value (market rate) of the parking spaces guaranteed by Section 29 within 15 days after the appointment of the second broker, but if the difference between the fair rental value determined by each broker is not more than $1.00 per square foot, the fair rental value of the Leased Premises including the fair rental value (market rate) of the parking spaces guaranteed by Section 29 for the first Lease Year in the applicable Renewal Period shall be an amount equal to the quotient obtained by dividing the sum of the fair rental value determined by each broker by two. If the two brokers so appointed do not agree on the fair rental value of the Leased Premises including the fair rental value (market rate) of the parking spaces guaranteed by Section 29, and if the difference between the fair rental value determined by each broker is more than $1.00 per square foot, the two brokers shall jointly appoint a third broker. If the two brokers so appointed shall be unable, within 15 days after the 14330rrk.6pl -13- appointment of the second broker, either (i) to agree on the fair rental value of the Leased Premises including the fair rental value (market rate) of the parking spaces guaranteed by Section 29 (or to disagree on such value with a difference of $1.00 or less per square foot) or (ii) to agree on the appointment of a third broker, they shall give written notice of such failure to agree to the parties, and, if the parties fail to agree upon the selection of a third broker within 10 days after the brokers appointed by the parties give such notice, then within 10 days thereafter either of the parties upon notice to the other party may request such appointment by the then President of the Baltimore City Board of Realtors (or any organization successor thereto), or in his failure to act, may apply for such appointment to the Circuit Court for Baltimore City, Maryland. If a third broker is appointed, he shall make his valuation within 15 days after his appointment and the fair rental value of the Leased Premises including the fair rental value (market rate) of the parking spaces guaranteed by Section 29 for the first Lease Year in the applicable Renewal Period shall be an amount equal to the quotient obtained by dividing the sum of the fair rental values determined by the two brokers who were closest to each other in amount, by two. 9. Expansion Options For Office Space. Sections 36(a) and 36 (b) are no longer applicable; replace the first sentence of Section 36(c), as set forth in the First Amendment, with the following: "(c) Provided Tenant has given Landlord written notice twelve (12) months prior to the fifth Lease Year, Tenant shall have the option of renting the remaining 9,277 square feet on the third floor of the Building." 10. Expansion Options For Retail Space: Add as a new Section 36(d) the following: "(d) Notwithstanding anything herein to the contrary, Tenant shall not have the option of leasing additional space on the first floor of the Building." 11. Tenant's Allowance: Replace the entire Section 39 with the following: "Landlord shall give Tenant an allowance to cover the cost of Tenant's Work actually performed in an amount not to exceed the product obtained by multiplying $15.00 by the Rentable Area, or a total allowance of $1,622,460 ("Tenant's Regular Allowance"). 14330rrk.6pl -14- Tenant's Regular Allowance shall be allocated for specific work performed over the five (5) floors of the Leased Premises as follows: 1st Floor $140,175 2nd Floor $427,290 3rd Floor $262,920 4th Floor $427,290 5th Floor $364,785
The Tenant's Regular Allowance shall be paid by Landlord to Tenant within thirty (30) days after completion of the Tenant Work for a given floor and presentation of invoices from general contractors, subcontractors and materialmen which invoices describe with specificity the work performed, the floor on which the work has been performed or the materials supplied and the cost of such work or materials." 12. Relocation of Sylvan Retail Space: The following is added as Section 43: "43. Relocation of Sylvan Retail Space: Notwithstanding anything in this Lease to the contrary, in the event Tenant leases twenty-five thousand (25,000) square feet or more in other space within the Inner Harbor East Renewal area from Landlord or an Affiliate, Landlord shall have the right to relocate the Sylvan Retail Space to the building where the other space is being leased; provided, the proposed relocated Sylvan space is comparable in size and tenant improvements made prior to the relocation. All reasonable direct third party expenses relating to the move from the Sylvan Retail Space to the new space shall be borne by Landlord. If the parties do not agree that all of the expenses are appropriate, the parties agree to arbitrate the issue and waive any and all rights of litigation with respect to the determination of the moving expenses. The cost and expense of any such arbitration shall be shared equally by the parties. Tenant agrees, after such relocation and the payment of third party moving expenses, to execute, if requested by Landlord, a release or modification of this Lease Agreement and a new lease for the relocated space; provided, it is on the same terms and conditions as those contained herein applicable to the Sylvan Retail Space and the Basic Rent under this Lease is reduced in accordance with the following schedule: 14330rrk.6pl -15-
Months Monthly Rent ------ ------------ 1-12 $11,603 13-24 $11,951 25-36 $12,310 37-48 $12,679 49-60 $13,060 61-72 $13,451 73-84 $13,855 85-96 $14,271 97-108 $14,699 109-120 $15,140
13. General: 13.1. In all other respects, the Lease and the First Amendment shall remain in full force and effect. 13.2. This Amendment shall be binding upon the parties hereto and their respective successors, and assigns. 13.3. This Amendment shall be interpreted and construed in accordance with the laws of the State of Maryland. 14330rrk.6pl -16- WITNESS the hands and seals of the parties hereto as of the day and year first above written. ATTEST/WITNESS: HARBOR EAST-OFFICE, LLC LANDLORD By: The Paterakis/Tsakalos Family Partnership LLP Administrative Member /s/ ILLEGIBLE By: /s/ Nicholas Tsakalos - ------------- -------------------------- (SEAL) Name: Partner: /s/ ILLEGIBLE By: /s/ William Paterakis - ------------- -------------------------- (SEAL) Name: Partner: ATTEST/WITNESS: SYLVAN LEARNING SYSTEMS, INC. TENANT /s/ ILLEGIBLE By: /s/ ILLEGIBLE - ------------- -------------------------- (SEAL) The undersigned joins herein solely to confirm that it will make Parcels P, B & C available to Landlord to satisfy the parking requirements described Section 29(b) hereof. By: The Paterakis/Tsakalos Family Partnership LLP General Partner By: /s/ Nicholas Tsakalos -------------------------- (SEAL) Name: Partner: By: /s/ William Paterakis -------------------------- (SEAL) Name: Partner: 14330rrk.6pl -17- EXHIBIT A-1 FIRST FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS EXHIBIT A-2 SECOND FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS EXHIBIT A-3 THIRD FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS EXHIBIT A-1 FOURTH FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS -21- EXHIBIT A-1 FIFTH FLOOR FLOOR PLAN INNER HARBOR EAST APARTMENTS EXHIBIT I INNER HARBOR EAST PLAT S.E.B. NO. 3363 PLAT S.E.B. NO. 3506 BALTIMORE, MARYLAND OCTOBER 10, 1996 EX-10.25 4 REVOLVING CREDIT AGREEMENT REVOLVING CREDIT NOTE $15,000,000.00 December 31, 1996 Baltimore, Maryland FOR VALUE RECEIVED, Sylvan Learning Systems, Inc., a Maryland corporation (the "Borrower") promises to pay on the Revolving Credit Expiration Date (as hereinafter defined) to the order of NationsBank, N.A., a national banking association (the "Bank") the aggregate unpaid principal amount of all Revolving Loans (as hereinafter defined) outstanding on the Revolving Credit Expiration Date and made by the Bank to the Borrower pursuant to the provisions of a certain Loan Agreement (which Loan Agreement, as the same may from time to time be amended, restated, supplemented or otherwise modified, is herein called the "Loan Agreement") dated as of the date hereof between the Borrower and the Bank. All capitalized terms used in this Note (including, without limitation, the terms "Business Day", "Default", "Default Period", "Financing Documents", "Late Charges", "Obligations", "Revolving Credit Interest Rate", "Revolving Loans", "Revolving Loan Account", and "Revolving Credit Expiration Date"), unless specifically herein defined, shall have the same meanings ascribed to such terms in the Loan Agreement. The term "Principal Amount" means, as of any date, the aggregate unpaid principal amount of all Revolving Loans advanced by the Bank to the Borrowers pursuant to the provisions of the Loan Agreement and outstanding on such date. The fact that there may be no Revolving Loans outstanding at any particular time shall not affect the continuing validity of this Note. Additionally, the Borrower promises to pay to the order of the Bank interest on the Principal Amount (calculated on a daily basis) from time to time outstanding at all times when a Default Period does not exist from the date hereof until the maturity of this Note (whether by acceleration, declaration, extension or otherwise) at a floating and fluctuating per annum rate of interest equal at all times to the Bank's 30 Day LABOR Rate (as hereinafter defined) in effect from time to time, plus one and fifteen one hundredths percent (1.15%) per annum. Interest accrued on the Principal Amount at all times when a Default Period does not exist from the date hereof until the maturity of this Note (whether by acceleration, declaration, extension or otherwise) shall be paid by the Borrower to the Bank monthly on or before the first day of each month, commencing on March 1, 1997, and on the same day of each month thereafter until the maturity of this Note (whether by acceleration, declaration, extension or otherwise), at which time all unpaid interest accrued through the date of such maturity shall be paid in full by the Borrower to the Bank. Notwithstanding the entry of any decree, order, judgment or other judicial action under, pursuant to, in connection with, or otherwise concerning this Note, the Loan Agreement or any of the other Financing C:\WPF\341174.001 February 4, 1997 Documents, during a Default Period and/or after the maturity of this Note (whether by acceleration, declaration, extension or otherwise), the Borrower promises to pay to the Bank whenever demanded by the Bank interest on the Principal Amount and all other amounts then and thereafter due and payable hereunder at a floating and fluctuating per annum rate of interest equal at all times to the Bank's 30 Day LIBOR Rate in effect from time to time, plus three and fifteen one hundredths percent (3.15%) per annum, from the beginning of such Default Period for so long as such Default Period continues, or, from the date of such maturity until payment in full of the Principal Amount, all accrued and unpaid interest thereon and any and all such other amounts due and payable hereunder. The term "30 Day LIBOR Rate" as used herein means the floating and fluctuating per annum rate of interest determined by the daily London Interbank Offered Rate (expressed as a percentage) for thirty (30) day dollar deposits as quoted by the Bank for 11:00 a.m. (London time). Each time the 30 Day LIBOR Rate shall change, the rate of interest on the Principal Amount shall change immediately and contemporaneously with each such change of the 30 Day LIBOR Rate. Interest shall be computed on the basis of a 360 day-year and the actual number of days elapsed. The Bank shall open and maintain on its books in the ordinary course of its business the Revolving Loan Account described in the Loan Agreement. Except in the case of manifest error, the Revolving Loan Account shall be conclusive and binding on the Borrower as to amounts due by the Borrowers to the Bank under the provisions of this Note. If any payment on this Note becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate of interest as herein provided during such extension. This Note is the "Revolving Credit Note" issued pursuant to the provisions of the Loan Agreement. The obligations of the Borrower evidenced by this Note are a part of the Obligations referred to in the Loan Agreement. The Bank is entitled to the benefits of the Loan Agreement, the other Financing Documents and the Collateral referred to therein. Upon the occurrence of a Default specified in Sections 6.12, 6.13 or 6.14 of the Loan Agreement, the unpaid balance of the Principal Amount, together with interest accrued and unpaid thereon, shall immediately and automatically become due and payable by the Borrower to the Bank. Upon the occurrence of any other Default under the Loan Agreement, or upon the failure of the Borrower to pay, as and when due and payable in accordance with this Note, the Principal Amount or any payment of interest on the Principal Amount, the Bank or any other holder of this Note may, at C:\WPF\341174.001 February 4, 1997 - 2 - its option, accelerate the maturity of this Note and declare the unpaid balance of the Principal Amount of this Note then outstanding together with interest accrued and unpaid thereon to be immediately due and payable, then and in that event the entire balance of the Principal Amount of this Note then outstanding together with interest accrued and unpaid thereon shall be immediately due and payable by the Borrower to the Bank. The Borrower waives diligence, presentment, demand, protest and notice of any kind except for any notice expressly provided for herein. Terms and conditions relating to the prepayment of this Note are set forth among the provisions of the Loan Agreement. The Borrower shall pay to the Bank Late Charges on account of this Note at the times and in the amounts prescribed by the Loan Agreement. All payments and prepayments of the Principal Amount, interest thereon and any other amounts payable hereunder shall be paid in lawful money of the United States of America in immediately available funds during regular business hours of the Bank at the Bank's office at 10 Light Street, Baltimore, Maryland, 21202, Maryland or at such other place as the Bank or any other holder of this Note may at any time or from time to time designate in writing to the Borrower. If this Note is forwarded to an attorney for collection after maturity hereof (whether by acceleration, declaration, extension or otherwise), the Borrower shall pay to the Bank on demand all costs and expenses of collection including reasonable attorney's fees. After maturity of this Note (whether by acceleration, declaration, extension or otherwise), the Borrower hereby authorizes any attorney designated by the Bank or clerk of any court of record to appear for it in any court of record and confess judgment against it without prior hearing, in favor of the Bank for and in the amount of the Principal Amount then outstanding plus interest accrued and unpaid thereon, all other amounts then due and payable hereunder, costs of suit and attorney's fees in an amount equal to 15% of the Principal Amount then outstanding; provided, however, (a) if the actual attorney's fees incurred by the Bank or other holder hereof are less than 15% of the Principal Amount then outstanding and all Obligations owed to the Bank by the Borrower have been paid, the Bank will refund (to the extent actually collected) to the Borrower an amount equal to the difference between 15% of the Principal Amount then outstanding and the amount of such actual attorney's fees, or (b) if the actual attorney's fees incurred by the Bank or other holder hereof exceed 15% of the Principal Amount then outstanding, whether by reason of judgment being contested or otherwise, the Borrower shall pay to the Bank on demand the amount of any such excess. The authority and power to appear for and enter judgment against the Borrower shall not be exhausted by one or more exercises thereof, or by any imperfect C:\WPF\341174.001 February 4, 1997 - 3 - exercise thereof, and shall not be extinguished by any judgment entered pursuant thereto. Such authority and power may be exercised on one or more occasions, from time to time, in the same or different jurisdictions, as often as the Bank shall deem necessary or desirable, for all of which this Note shall be a sufficient warrant. The rights and remedies of the Bank or any other holder hereof under this Note, the Loan Agreement and the other Financing Documents shall be cumulative and concurrent and may be pursued and exercised singularly, successively or concurrently at the sole discretion of the Bank or any other holder hereof and may be exercised as often as the Bank or any other holder hereof shall deem necessary or desirable, and the non-exercise by the Bank or any other holder hereof of any such rights and remedies in any particular instance shall not in any way constitute a waiver or release thereof in that or any subsequent instance. The Borrower and the Bank hereby voluntarily and intentionally waive any right they may have to a trial by jury in any action, proceeding or litigation directly or indirectly arising out of, under or in connection with this Note, the Loan Agreement or any of the other Financing Documents. This Note shall be governed and construed under the laws of the State of Maryland, and the Borrower hereby irrevocably consents and submits to the jurisdiction and venue of any state or federal court sitting in the State of Maryland over any suit, action or judicial proceeding brought to enforce or construe this Note or arising out of or relating to this Note. IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name, under its seal and on its behalf by its duly authorized officers the day and year first written above. ATTEST: Sylvan Learning Systems, Inc. /s/ Susannah Bennett By: /s/ B. Lee McGee (Seal) - ----------------------------- --------------------------------- Susannah Bennett, Assistant B. Lee McGee, Secretary Vice President (SEAL) SYLVAN LEARNING SYSTEMS, INC. CORPORATE 1989 SEAL MARYLAND C:\WPF\341174.001 February 4, 1997 - 4 - EX-10.26 5 SENIOR MANAGEMENT OPINION SYLVAN LEARNING SYSTEMS, INC. 1996 SENIOR MANAGEMENT STOCK OPTION PLAN 1. PURPOSE This 1996 Senior Management Stock Option Plan (the "Plan") is intended as an employment incentive and to encourage capital accumulation and stock ownership in Sylvan Learning Systems, Inc. (the Corporation ) by certain key executive officers (including executive officers who are also directors) of the Corporation and of its Subsidiaries (as defined below) in order to increase their proprietary interest in the Corporation's success. 2. ADMINISTRATION: The Plan shall be administered by a committee appointed by the Board of Directors of the Corporation (the "Committee"). The Committee shall consist of not less than two members of the Board of Directors who are disinterested administrators as described in Rule 16b-3 under the Securities Exchange Act of 1934. The Committee shall determine the persons who shall participate in the Plan and the extent of their participation. The interpretation and construction by the Committee of any provisions of the Plan or any stock option agreements entered into under the Plan and any determination by the Committee pursuant to any provision of the Plan or any such agreement shall be final and conclusive. No member of the Committee shall be liable for any action or determination made in good faith, and the members shall be entitled to indemnification and reimbursement in the manner provided in the Corporation's charter or by-laws, and under any directors and officers liability insurance coverage of the Corporation which may be in effect from time to time. 3. ELIGIBILITY: The individuals who shall be eligible to participate in the Plan shall be the senior executive officers (including the Chief Financial Officer, the Chief Executive Officer(s) and the Chairman of the Board, of the Corporation) (including those senior executive officers who are also directors of the Corporation), or of any corporation in which the Corporation has a proprietary interest by reason of stock ownership or otherwise, including any corporation in which the Corporation acquires a proprietary interest after the adoption of this Plan (but only if the Corporation owns or controls, directly or indirectly, stock possessing not less than 50% of the total combined voting power of all classes of stock in such corporation) (a "subsidiary"), as the Committee shall determine from time to time. C:\KDL\STOCK\PLANS, 09/30/9696MSOP.RTF/09/30/96, 9:23AM 4. AWARD OF OPTIONS: The Committee, at any time and from time to time, may authorize the granting of options under this Plan to any eligible individual under the Plan. Subject to the terms of the Plan, the Committee shall determine the timing, size and all other terms applicable to options granted under this Plan. Options granted under the Plan may be incentive stock options under section 422 of the Internal Revenue Code or nonqualified stock options 5. AWARD OF STOCK APPRECIATION RIGHTS: The Committee, at any time and from time to time, may authorize the granting of stock appreciation rights to optionees who have been granted options under this Plan. Each stock appreciation right shall relate to a specific option granted under this Plan and may be granted concurrently with the option to which it relates or at any time prior to the exercise, termination or expiration of such option. The term "stock appreciation right" shall mean the right to receive from the Corporation, upon surrender of the option or a portion thereof without payment to the Corporation, an amount equal to the fair market value on the exercise date of the total number of Shares of common stock of the Corporation for which the stock appreciation right is exercised, less the exercise price which the optionee would have otherwise been required to pay upon purchase of the Shares. The amount payable by the Corporation upon the exercise of a stock appreciation right may be paid in cash or in shares of common stock of the Corporation, or in any combination thereof, as the Committee in its sole discretion shall determine; provided, however, that in no event shall the total number of shares which may be paid to the optionee pursuant to the exercise of a stock appreciation right exceed the total number of Shares subject to the related option. No fractional shares shall be issued under this section and the optionee shall instead be entitled to receive a cash adjustment equal to the same fraction of the fair market value per share. The Committee may fix, with respect to rights granted under this Plan such waiting periods, exercise dates or other limitations as it shall deem appropriate, provided that no right shall be exercisable after the expiration of the option to which it relates. In addition, the Committee may impose a total prohibition on the exercise of such rights for such period or periods as it, in its sole discretion, deems to be appropriate. The shares involved in an option as to which a stock appreciation right is related shall be used not more than once to calculate the amounts to be received pursuant to an exercise of such right. The right of an optionee to exercise an option shall be cancelled if and to the extent that shares covered by such option are used to calculate amounts received upon exercise of a related stock appreciation right. 6. STOCK: The stock subject to the options, stock appreciation rights, and other provisions of the Plan shall be shares of the Corporation's authorized but unissued common stock and shares of common stock held as treasury stock in the Corporation (all such shares of common stock are referred to herein as "Shares"). Subject to adjustment in accordance with the provisions of Paragraph 7(f) hereof, the total number of Shares which may be issued under the Plan shall not exceed in the aggregate 1,500,000 Shares. The maximum number of Shares that may be issued pursuant to options and stock appreciation rights granted under this Plan to any person is 750,000 Shares. C:\KDL\STOCK\PLANS, 09/30/9696MSOP.RTF/09/30/96, 9:23AM In the event that any outstanding option or stock appreciation right under the Plan for any reason expires or is terminated prior to the end of the period during which options or stock appreciation rights may be granted, the Shares allocable to the unexercised portion of such option or stock appreciation right may again be subjected to options or stock appreciation rights under the Plan. 7. TERMS AND CONDITIONS OF STOCK OPTION AGREEMENTS: Stock options and stock appreciation rights granted pursuant to the Plan shall be evidenced by agreements in such form as the Committee shall, from time to time, approve. Stock appreciation rights shall be evidenced by an agreement amending the stock option agreement to which such rights relate. Such agreements shall comply with and be subject to the following terms and conditions: (a) Medium of Payment: Upon exercise of the option, the option price shall be payable at the discretion of the Committee: (i) in United States dollars in cash or by certified check, bank draft or money order payable to the order of the Corporation; (ii) through the delivery of shares of common stock of the Corporation which have been held by the optionee for at least six months at the time of surrender or acquired under a grant not less than six months prior to the time of surrender and which shall be valued at their fair market value on the date of exercise; (iii) by withholding of Shares otherwise issuable pursuant to an exercise of an option equal in value to the option price or any portion thereof; or (iv) by any other means that the Committee may approve. At the discretion of the Committee, payment in full of the option price need not accompany the written notice of exercise provided that the notice directs that the stock certificates for the Shares issued upon exercise be delivered to a licensed broker acceptable to the Corporation as agent for the individual exercising the option and at the time the stock certificates are delivered to the broker, the broker will tender to the Corporation cash or cash equivalents acceptable to the Comoration equal to the exercise price. (b) Number of Shares: The agreement shall state the total number of Shares to which it pertains. (c) Option Price: Unless the Committee provides otherwise, the option price for Shares covered by an incentive stock option granted hereunder shall be not less than 100% of the fair market value, as determined by the Committee, of such Shares on the date of the granting of the incentive stock option and the option price for Shares covered by a non-qualified stock option granted hereunder shall be not less than 85% of the fair market value, as determined by the Committee, of such Shares on the date of the granting of the nonqualified stock option. C:\KDL\STOCK\PLANS, 09/30/9696MSOP.RTF/09/30/96, 9:23AM (d) Term of Options and Stock Appreciation Rights: Unless the Committee provides otherwise, each option and related stock appreciation right granted under the Plan shall expire not more than 10 years from the date the option is granted; provided that a stock appreciation right shall not be exercisable prior to or later than the time the related option could be exercised. (e) Date of Exercise: The Committee may in its discretion provide that an option or stock appreciation right may not be exercised in whole or in part for any period or periods of time specified by the Committee. Except as may be so provided, any option or stock appreciation right may be exercised in whole at any time or in part from time to time during its term. In the case of an option or stock appreciation right not immediately exercisable in full, the Committee may in its discretion accelerate the time at which an option or stock appreciation right granted hereunder may be exercised. (f) Recapitalization: The aggregate number of Shares on which options and stock appreciation rights may be granted to persons participating under the Plan, the number of Shares thereof covered by each outstanding option and stock appreciation right, and the price per Share thereof in each such option and stock appreciation right shall all be proportionately adjusted for any increase or decrease in the number of issued Shares, as applicable, resulting from a subdivision or consolidation of shares or other capital adjustment, or the payment of a stock dividend or other increase or decrease in such Shares, effected without receipt of consideration by the Corporation; provided, however, that any fractional Shares resulting from any such adjustment shall be eliminated. If the Corporation shall be the surviving or resulting corporation in any merger or consolidation, any option granted hereunder shall pertain to and apply to the securities to which a holder of the number of Shares subject to the option or stock appreciation right would have been entitled; but a dissolution or liquidation of the Corporation, or a merger or consolidation in which the Corporation is not the surviving or resulting corporation shall cause every option and stock appreciation right outstanding hereunder to terminate, except that the surviving or resting corporation may, in its absolute and uncontrolled discretion, tender options or stock appreciation rights to purchase its shares on terms and conditions, both as to the number of shares and otherwise, which shall substantially preserve the rights and benefits of any option or stock appreciation right then outstanding hereunder. In the event of a change in the Corporation's common stock which is limited to a change in the designation thereof to "capital stock" or other similar designation, or to a change in the par value thereof, or from par value to no par value, without increase in the number of issued shares, the shares resulting from any such change shall be deemed to be Shares of common stock within the meaning of the Plan. (g) Transferability: No option or related stock appreciation right shall be assignable or transferable except by will or by the laws of descent and distribution. During the lifetime of an optionee, the option or related stock C:\KDL\STOCK\PLANS, 09/30/9696MSOP.RTF/09/30/96, 9:23AM appreciation right shall be exercisable only by such optionee. Notwithstanding the foregoing, in the discretion of the Committee, transfers of options shall be permitted to (a) members of the immediate family of the optionee (children, grandchildren, spouse, parents or siblings of the optionee); (b) trusts for the benefit of such family members; and (c) partnerships whose only partners are such family members. No consideration may be paid for the transfer of such options. The Committee may grant transferable or nontransferable options in its discretion and the option agreement shall specify whether the option is transferable or nontransferable. (h) Rights as a Stockholder: An optionee shall have no rights as a stockholder with respect to Shares covered by the optionee's option or stock appreciation right until the date of the issuance of the Shares to the optionee and only after such Shares are fully paid. No adjustment will be made for dividends or other rights for which the record date is prior to the date of such issuance. (i) Withholding: The Corporation shall have the right to withhold, or require an individual exercising an option to remit to the Corporation, an amount sufficient to satisfy any applicable federal, state or local withholding tax requirements imposed with respect to the exercise of options. To the extent permissible under applicable tax, securities and other laws, the option agreement shall permit satisfaction of a tax withholding requirement by withholding Shares issued as a result of the exercise of an option. k) Other Provisions: The agreements authorized under this Plan may contain Such other provisions as the Committee shall deem advisable. 8. TERM AND EFFECTIVENESS OF PLAN: The Plan shall become effective on the date it is approved by the affirmative vote of a majority of the votes cast in person or by proxy at a meeting of the stockholders of the Corporation and when so approved shall be deemed to have been in full force and effect from and after the date on which it is adopted for the Corporation by action of its Board of Directors. Before stockholder approval has been obtained, the Committee may grant stock options and stock appreciation rights under the Plan; however, such stock options and stock appreciation rights shall be void if the Plan is not thereafter approved by the stockholders. No stock option or stock appreciation rights shall be granted pursuant to this Plan after the tenth anniversary of the date on which the Plan was adopted by the Board of Directors of the Corporation or the date the Plan is approved by the stockholders of the Corporation whichever is earlier. C:\KDL\STOCK\PLANS, 09/30/9696MSOP.RTF/09/30/96, 9:23AM 9. AMENDMENTS: The Board of Directors may from time to time alter, amend, suspend, or discontinue this Plan, subject to the terms of the Plan; provided, however, that to the extent required under Rule 16b-3 with respect to persons who are subject to Section 16 of the Securities Exchange Act of 1934 and, with respect to incentive stock options, to the extent required by the Internal Revenue Code, no action by the Board of Directors which materially modifies the Plan shall become effective without the approval of the stockholders of the Corporation. The Committee may alter or amend any and all option and stock appreciation rights agreements granted hereunder, provided that no such amendment shall become effective without the consent of the option holder. 10. APPLICATION OF FUNDS: The proceeds received by the Corporation from the sale of common stock pursuant to options will be used for general corporate purposes SYLVAN LEARNING SYSTEMS, INC. By: ------------------------------------- Douglas L. Becker President & Co-CEO By: ------------------------------------- R. Christopher Hoehn-Saric Co-CEO EX-11 6 COMPUTATION OF EARNINGS EXHIBIT 11 - STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS SYLVAN LEARNING SYSTEMS, INC.
YEARS ENDED DECEMBER 31, ------------------------------------------------ 1994 1995 1996 ------------------------------------------------ PRIMARY: AVERAGE SHARES OUTSTANDING 13,107,967 13,718,007 21,614,816 DILUTIVE EFFECT OF STOCK OPTIONS - Based on the treasury stock method using the average market price 1,763,895 1,851,103 1,379,485 COMMON STOCK CONTINGENTLY ISSUABLE 0 95,693 446,033 ------------------------------------------------ TOTAL 14,871,862 15,664,803 23,440,334 ========== ========== ========== NET INCOME $3,385,557 $3,547,829 $14,743,106 CONTINGENT GOODWILL AMORTIZATION FOR ACQUISITIONS $0 $170,547 $629,716 ------------------------------------------------ SUPPLEMENTAL NET INCOME $3,385,557 $3,377,282 $14,113,390 ========== ========== =========== ----------- PER SHARE AMOUNTS $0.23 $0.22 $0.60 ===== ===== ===== FULLY DILUTED: AVERAGE SHARES OUTSTANDING 13,107,967 13,718,007 21,614,816 DILUTIVE EFFECT OF STOCK OPTIONS - Based on the treasury stock method using the market price at the end of the year 2,011,048 2,158,119 1,521,174 COMMON STOCK CONTINGENTLY ISSUABLE 0 95,693 446,033 ------------------------------------------------ TOTAL 15,119,015 15,971,819 23,582,023 ========== ========== ========== NET INCOME $3,385,557 $3,547,829 $14,743,106 CONTINGENT GOODWILL AMORTIZATION FOR ACQUISITIONS $0 $170,547 $629,716 ------------------------------------------------ SUPPLEMENTAL NET INCOME $3,385,557 $3,377,282 $14,113,390 ========== ========== =========== ----------- PER SHARE AMOUNTS $0.22 $0.21 $0.60 ===== ===== =====
EX-21.0 7 SUBSIDIARIES Subsidiaries of Sylvan Learning Systems. Inc. Exhibit 21.0
COMPANY COUNTRY/STATE OF INCORP. - ------- ------------------------ SYLVAN LEARNING SYSTEMS, INC. MARYLAND RESS USA, Inc. Delaware Sylvan Learning Systems International. Ltd. Delaware Its Subsidiary: --------------- Sylvan Learning Systems I, B.V. Netherlands Its Subsidiaries: ----------------- Sylvan Learning Systems B.V. Netherlands Sylvan Learning Systems II, B.V. Netherlands Its Subsidiaries: ----------------- Sylvan Learning Systems GmbH Germany Sylvan Learning Systems Pty. Ltd. Australia Sylvan Learning Systems Pty. Ltd. South Africa PACE Learning, Inc. Maryland Sylvan Hungary KFT Hungary (Wall Street Inst) Italia Design Kontract S.L. Spain (WSI) Office Overload, Inc. Its Subsidiary: --------------- Sylvan Prometric, L.P. Minnesota Drake Prometric, K.K. Japan CCS Gesellschaft fur Computergestutzie Tests und Prufugen MBH Germany Computer Certification Services, Limited United Kingdom Computer Certification Services Pty Limited Australia ITS General, Inc. Its Subsidiarv: --------------- Sylvan Prometric, L.P. Minnesota Caliber Learning Network, Inc. Maryland Jostens Learning Corporation California
EX-23.1 8 CONSENT OF ACCOUNTANT Exhibit 23.01 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the following Registration Statements of our report dated February 27, 1997, with respect to the consolidated financial statements and schedule of Sylvan Learning Systems, Inc. included in the Annual Report (Form 10-K) for the year ended December 31, 1996. Registration Statements on Form S-3
Registration Number Date Filed - ------------------------------------------------------ 33-92014 May 8, 1995 33-92852 May 30, 1995 333-1674 February 26, 1996 333-16111 November 14, 1996 333-21261 February 6, 1997
Registration Statements on Form S-8
Name Registration Number Date Filed - ------------------------------------------------------------------------------- 1987-1991 Employee Stock Option Plan 33-77384 April 6, 1994 1993 Director Stock Option Plan 33-77386 April 6, 1994 1993 Employee Stock Option Plan 33-77390 April 6, 1994 1993 Management Stock Option Plan 33-77388 April 6, 1994 1997 Employee Stock Purchase Plan 333-21963 February 18, 1997
/s/Ernst & Young Baltimore, Maryland March 26, 1997 EX-27 9 FDS
5 YEAR YEAR DEC-31-1996 DEC-31-1995 JAN-01-1996 JAN-01-1995 DEC-31-1996 DEC-31-1995 11,082,263 2,528,865 16,298,988 30,379,065 38,084,253 25,190,746 1,378,854 1,466,027 4,469,577 3,639,392 71,819,665 63,486,772 35,984,436 21,522,241 11,271,237 6,142,009 250,578,851 165,406,671 43,432,594 25,169,926 0 0 0 0 0 0 225,662 207,302 179,365,017 136,254,529 250,578,851 165,406,671 157,116,660 87,990,818 157,116,660 87,990,818 0 0 134,901,266 83,664,390 0 0 0 0 529,469 1,832,377 23,593,106 3,756,988 8,850,000 209,159 14,743,106 3,547,829 0 0 0 0 0 0 14,743,106 3,547,829 0.60 0.22 0.60 0.21
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