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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] Quarterly report pursuant section 13 or 15(d) of the Securities and
Exchange Act of 1934 for the quarterly period ended September 30, 1996.
[ ] Transition report pursuant to section 13 or 15(d) of the Securities and
Exchange Act of 1934 for the transition period from
to .
COMMISSION FILE NUMBER: 0-21932
CALIFORNIA CULINARY ACADEMY, INC.
(Exact name of small business issuer in its charter)
California 94-3042862
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
625 Polk Street
San Francisco, CA 94102
(Address of principal executive offices) (Zip Code)
Issuer's Telephone Number: (415) 771-3536
check 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 .
------- -------
The number of shares outstanding of the registrant's Common Stock as of October
31, 1996, was 3,293,860.
Transitional Small Business Disclosure Format. Yes No X .
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CALIFORNIA CULINARY ACADEMY, INC.
BALANCE SHEET
SEPTEMBER 30, 1996
ASSETS (Unaudited)
Current Assets:
Cash and cash equivalents (including restricted
cash equivalents of $615,000) $3,383,000
Accounts receivable, net of allowance of $280,000 2,993,000
Inventories 214,000
Prepaid expenses and other assets 259,000
Deferred tax asset 114,000
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Total Current Assets 6,963,000
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Property and equipment, net of depreciation and amortization 4,681,000
Intangible assets, net 513,000
Other assets 576,000
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TOTAL ASSETS $12,733,000
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LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable $626,000
Accrued liabilities 286,000
Dividends payable 11,000
Deferred revenue 3,833,000
Student prepayments 339,000
Current portion of note payable 814,000
Current portion of capital lease obligations 67,000
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Total Current Liabilities 5,976,000
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Note payable 81,000
Capital lease obligations 199,000
Other non-current liabilities 428,000
Shareholders' Equity:
Preferred stock, no par value, 5,000,000 shares authorized,
254,541 shares issued and outstanding 988,000
Common stock, no par value, 20,000,000 shares authorized,
3,312,719 shares issued and outstanding 9,112,000
Retained deficit (4,051,000)
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Total Shareholders' Equity 6,049,000
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TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $12,733,000
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CALIFORNIA CULINARY ACADEMY, INC.
STATEMENTS OF OPERATIONS
FOR THE QUARTER ENDED SEPTEMBER 30, 1996 AND 1995
(Unaudited)
Three Months Ended September 30,
--------------------------------
1996 1995
--------------- -------------
Revenues:
Culinary arts education $2,995,000 $2,876,000
Restaurants & catering 379,000 429,000
Retail, media and other 155,000 145,000
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Total revenues 3,529,000 3,450,000
Cost of sales
Food & beverage 371,000 418,000
Program supplies 176,000 133,000
Scholarships & grants 46,000 38,000
Merchandise & other 109,000 139,000
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702,000 728,000
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Gross Margin 2,827,000 2,722,000
Fixed costs
Occupancy 445,000 438,000
Repairs & maintenance 95,000 133,000
Telephone, security & other 97,000 108,000
Depreciation & amortization 266,000 256,000
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Total fixed costs 903,000 935,000
Operating expenses
Compensation & benefits 1,331,000 1,550,000
Outside services 122,000 275,000
Advertising & promotion 148,000 157,000
Legal & other 240,000 438,000
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1,841,000 2,420,000
Interest income (expense) (6,000) 7,000
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Income (loss) before provision for
income taxes 77,000 (626,000)
Income tax provision (benefit) 31,000 (202,000)
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Net income (loss) $46,000 $(424,000)
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Primary earnings (loss) per share $0.01 $(0.13)
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Weighted average common shares and equivalents 3,228,732 3,308,805
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CALIFORNIA CULINARY ACADEMY, INC.
STATEMENTS OF CASH FLOWS
FOR THE QUARTER ENDED SEPTEMBER 30, 1996 AND 1995
<TABLE>
<CAPTION>
(Unaudited)
Quarter Ended September 30
--------------------------
1996 1995
------------ ------------
<S> <C> <C>
Cash Flows From Operating Activities:
Net income (loss) $46,000 $(424,000)
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Depreciation and amortization 266,000 256,000
Tax provision 31,000 (202,000)
Provision for losses on accounts receivable 58,000
Loss on disposal of property 1,000
Deferred rent (1,000)
Changes in assets and liabilities:
Accounts receivable (206,000) 280,000
Inventories (6,000) (18,000)
Prepaid expenses and other assets (120,000) 9,000
Accounts payable (123,000) 15,000
Accrued and other liabilities (179,000) (17,000)
Deferred revenues 37,000 (455,000)
Student prepayments 81,000
Other long-term obligations (5,000)
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Net Cash Provided By Operating Activities (173,000) (503,000)
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Cash Flows From Investing Activities:
Acquisition of property and equipment (798,000) (16,000)
Decrease in long-term investments 646,000
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Net Cash Used In Investing Activities (152,000) (16,000)
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Cash Flows From Financing Activities:
Borrowings under term loan agreements 157,000
Principal payments on term loan agreements (77,000) (63,000)
Principal payments on capital lease obligations (25,000) (16,000)
Proceeds from exercise of stock options and warrants 1,087,000 33,000
Repurchase of Common Stock (717,000)
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Net Cash Provided By Financing Activities 425,000 (46,000)
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Net Increase In Cash and Cash Equivalents 100,000 (565,000)
Cash and cash equivalents, beginning of period 3,283,000 2,359,000
------------ ------------
Cash and cash equivalents, end of period $3,383,000 $1,794,000
------------ ------------
------------ ------------
</TABLE>
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CALIFORNIA CULINARY ACADEMY, INC.
STATEMENTS OF CASH FLOWS
Supplemental disclosure of non-cash investing and financing activities:
The Academy paid approximately $81,000 and $19,000 in interest for the three
months ended September 30, 1996 and 1995, respectively.
The Academy paid approximately $1,000 and $6,000 in income taxes for the three
months ended September 30, 1996 and 1995, respectively.
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CALIFORNIA CULINARY ACADEMY, INC.
CONDENSED NOTES TO FINANCIAL STATEMENTS
NOTE 1 -- BASIS OF PRESENTATION
The accompanying condensed financial statements and related footnotes have been
prepared in accordance with generally accepted accounting principles. The
balance sheet as of September 30, 1996 and related statements of operations and
statements of cash flows for the three months ended September 30, 1996 and 1995
are unaudited, but have been prepared on substantially the same basis as the
annual audited financial statements. In the opinion of management, the
unaudited financial statements reflect all adjustments, consisting only of
normal recurring adjustments, necessary for a fair presentation of the financial
position, operating results and cash flows for those periods presented. The
unaudited results for the three months ended September 30, 1996 are not
necessarily indicative of results to be expected for the entire year.
Certain prior year amounts have been reclassified to conform to current year
presentation.
NOTE 2 - INCOME TAXES
Deferred taxes are recorded based upon differences between the financial
statement and tax basis of assets and liabilities and available tax
carryforwards. The principal temporary differences that result in deferred tax
assets and liabilities are certain expenses accrued for financial reporting
purposes not deductible for tax purposes until paid, depreciation for income tax
purposes in excess of depreciation for financial reporting purposes and unused
net operating losses.
As of September 30, 1996 the Academy has federal and California net operating
loss carryforwards, for tax return purposes, of approximately $1,906,000 and
$1,092,000, respectively, which are available to offset future taxable income,
if any.
A valuation allowance has been provided for the prior year net operating loss
and deferred assets since it is more likely than not that the future tax
benefits of these items will not realized.
NOTE 3 -- NET INCOME PER SHARE
Net income per share is based on the weighted average number of shares
outstanding during each of the respective periods, including the dilutive effect
of stock options, warrants and any other common stock equivalents using the
treasury stock method.
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NOTE 4 -- BANK DEBT
As of September 30, 1996, the Academy had a term loan with a bank. The term
loan provides for borrowings up to $750,000 with interest at 1% above the prime
rate of the bank, the proceeds of which are to be used to finance the purchase
of new equipment. The term loan is collateralized by all of the Academy's
equipment and a certificate of deposit, the balance of which shall not at any
time be less than 50% of the principal balance outstanding under the term note.
As of September 30, 1996, the Academy maintained a certificate of deposit of
$355,000 with the bank, of which $115,000 was collateral for the term loan.
The financing agreement contains various affirmative covenants including certain
covenants and ratios which the Academy must maintain. As of September 30, 1996,
the Academy was in violation of certain covenants. As of September 30, 1996,
the term loan was classified as current and was repaid during October 1996.
In June 1996, the Academy obtained a term loan from a bank in the amount of
$500,000, the proceeds of which were used for working capital requirements. The
term loan provides for interest paid monthly at 1% above the bank's index rate
for 90-day business certificate of deposits. The line of credit is
collateralized by a certificate of deposit at the same bank in the amount of
$500,000. As of September 30, 1996, the term loan was classified as current and
was repaid during October 1996.
NOTE 5- PREFERRED STOCK
During March 1996 and July 1996, the Board of Directors and shareholders,
respectively, authorized the Academy to issue up to 5,000,000 shares of
Preferred Stock in one or more series to be determined by the Board of
Directors from time to time. An amendment to the Articles of Incorporation
authorizing the issuance of Preferred Stock was filed with the California
Secretary of State in August 1996. On August 23, 1996, the Academy became
legally authorized to issue up to 700,000 shares of Series A Preferred Stock.
On the same date, the entire issue of Convertible Subordinated Notes in the
aggregate principal amount of $1,400,000 automatically converted to 254,541
shares of Series A Preferred Stock. The Academy plans to file a registration
statement to register for resale the Common Stock underlying the Series A
Preferred Stock and will use its best efforts to effect such registration before
November 23, 1996, the date after which an agreed upon $14,000 per month penalty
provision takes effect.
The non-redeemable Series A Preferred Stock into which the Notes converted
provides for quarterly dividends at an annual rate of 7.5% per share from the
date of first issuance, when and if declared by the Board of Directors, with a
liquidation preference of $5.50 per share, plus accrued dividends. Although the
Series A Preferred Stock is nonvoting, in the event the Academy fails to pay a
quarterly dividend, the holder of the Series A Preferred Stock will be entitled
to elect one-third of the Academy's Board of Directors at the next meeting held
for the election of directors. Each share of Series A Preferred Stock is
convertible at the option of the holder into the Academy's Common Stock at the
conversion price of $5.50 per share. After February 23, 1997, each share of
Series A Preferred Stock will convert automatically if the closing price of the
Common Stock equals or exceeds $8.00 for 20 consecutive days. Certain
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provisions for price protection are set forth in the terms of the Series A
Preferred Stock, but in no event will the conversion price be less than $3.50.
The terms of the Convertible Subordinated Notes and the subsequent conversion to
Series A Preferred Stock provide for certain registration rights. Certain
penalties are payable to the Preferred shareholders in an amount equal to one
percent of the principal per month in the event that a registration statement
covering the resale of the Common Stock issuable upon conversion is not
effective within 90 days of (i) the date on which the Academy becomes legally
authorized to issue the Series A Preferred Stock and the Notes automatically
convert into Preferred Stock, or (ii) the date on which 100% of the Notes have
been converted to Common Stock. The penalty becomes payable as of November 23,
1996 unless the Common Stock issuable upon conversion of the Series A Preferred
Stock has been declared effective by the Securities and Exchange Commission.
NOTE 6 - REPURCHASE OF STOCK
In July 1996, a prior executive officer of the Academy elected to exercise
approximately 112,000 vested stock options. The Academy subsequently entered
into a transaction with this prior officer, wherein the Academy purchased and
retired this stock in exchange for approximately $717,000, which
approximated fair market value and was comprised of approximately $560,000 in
cash and $157,000 in promissory notes bearing an interest rate jof 8.75%.
NOTE 7 - RELATED-PARTY TRANSACTIONS
In July 1996, the Academy entered into a five-year lease for an approximately
3,800 square foot facility in Salinas, California. The lessor is a partnership
controlled by the principal shareholder, Chief Executive Officer and Chairman of
the Board of Directors and another principal shareholder and member of the Board
of Directors. The new facility will be an extension campus opened in October
1996. The monthly rent for the facility will be the greater of $3,900 or 8% of
gross sales plus a share of common area and exterior maintenance charges. The
Academy paid a lease acquisition fee of $150,000 upon execution of the lease
agreement. The lease agreement includes a termination clause subject to revenue
performance at the extension campus during the first twelve months of operations
and a termination fee should the Academy invoke the termination clause.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The Academy's revenues are derived primarily from culinary arts education as
well as restaurant, retail and media operations. Culinary arts education
primarily consists of the A.O.S. Culinary Arts Degree Program, the 30-week
Baking & Pastry Arts Certificate Program, and consumer education classes.
Starting in June 1996, the A.O.S. Culinary Arts Degree Program began enrollment
on a two week cycle. The program can accommodate up to 29 students per
enrollment period. Previously the A.O.S. Degree Program enrolled an average of
approximately 80 students per enrollment period with six enrollments per year.
The 30-week Baking & Pastry Arts Certificate Program enrolled classes ranging
from 15 to 20 students. As of September 30, 1996, there were approximately 540
A.O.S. students and 60 Baking & Pastry students enrolled in the Academy.
The change in class size and the change in the enrollment cycle for the A.O.S.
program from every two months to every two weeks was made to enable student
enrollments to be managed more effectively. With an increased number of choices
of start dates for students, the Academy is better able to manage individual
student start dates to optimize class sizes. Additionally, the Academy is able
to manage faculty labor costs and other program costs due to more predictable
class sizes. Further, the Academy is able to utilize space in its teaching
facility more effectively because it is able to free up previously underutilized
space for other revenue producing activities, such as contract training.
Consumer education consists of avocational and team building programs. The
Academy's team building programs offer groups the use of the Academy's
professional kitchens under the guidance of a chef instructor. This form of
team building is an alternative to other forms of combined business and social
interaction such as river rafting and sporting event outings. Restaurant and
retail operations include two restaurants and two private dining rooms generally
open to the public seven days per week, banquet services generally offered seven
days per week and a small on-site retail shop offering student prepared foods,
beverages, cookbooks, video tapes, kitchen wares and selected clothing. Media
operations primarily consist of the marketing of the "Cooking at the Academy"
television series and the licensing of the Academy's name and cookbook content
for use in a series of cookbooks.
The Academy believes that manageable growth is achievable through the addition
of remote training facilities such as its culinary arts training center at
Salinas, California (opened in October 1996) and by the addition of programs to
be offered to the food industry such as contract training and research and
development in the areas of product development, menu development, and
restaurant design. In order to facilitate this revised strategy, the Academy
formed the CCA Development Company whose mission is to provide the food service
industry with knowledge based resources, which complement the education the
Academy's degree programs offer.
While management believes that this revised strategy will enable it to
significantly increase revenues by providing additional educational, training
and consultative resources to the food
<PAGE>
industry, there can be no assurance that management will be able to successfully
implement such a strategy.
Except for historical information contained herein this report contains
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. The
forward-looking statements contained herein are based upon current expectations,
and actual results may differ materially. Forward-looking statements contained
in this Report involve numerous risks and uncertainties, including those
discussed in this Report and the Academy's Annual Report on Form 10-KSB for the
fiscal year ended June 30, 1996, that could cause actual results to differ
materially from those projected.
The primary risks and uncertainties that could affect future results include,
without limitation, (i) the inability of management to successfully implement
and manage the Academy's new growth strategy of adding more remote training
facilities and new programs to be offered to the foodservice industry: (ii)
uncertainties associated with overhauling the structure of the A.O.S. degree
program enrollment process and the inability of the Academy to make
appropriate adjustments in a timely manner; (iii) the increased competition
from both for-profit and non-profit culinary arts education institutions;
(iv) the continued dependence on financial aid programs to fund a majority of
Academy's students' education, thereby providing a significant portion of the
Academy's revenues, together with the uncertainty that budgetary constraints
or other factors in the future could impact the availability and amount of
both public and private sources of financial aid; and (v) the possibility
that regulatory agencies that dirctly or indirectly impact aspects of the
Academy's business could revise regulations in such a way that the Academy
would not be able to comply with new regulations in a timely manner.
Investors are cautioned not to place undue reliance on these forward-looking
statements, which reflect management's analysis only as of the date hereof. The
Academy undertakes no obligation to publicly release the results of any revision
to these forward-looking statements that may be made to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
RESULTS OF OPERATIONS
The Academy had net income of $46,000 or $0.01 per share for the quarter ended
September 30, 1996 ("Q1-97"), compared to net loss of $(424,000), or $(0.13) per
share for the quarter ended September 30, 1995 ("Q1-96").
Total revenues increased 2.3% for Q1-97 to $3,529,000 from $3,450,000 for Q1-96.
Revenues from culinary arts education, which typically account for approximately
80% of total revenues, increased $119,000 or 4.1% as compared to the same
quarter from the prior fiscal year. Revenues from restaurant and retail sales,
media and other decreased $33,000, or 5.9%, for the quarter over the same
quarter from the prior fiscal year.
Total culinary arts education revenues for Q1-97 were $2,995,000 compared to
$2,876,000 for the Q1-96. The increase of $119,000, or 4.1%, is primarily to
higher program fees and costs.
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Restaurants and catering revenues for Q1-97 were $379,000 compared to $429,000
for Q1-96. The decrease of $50,000 or 11.6% is primarily related to related to
closure of the restaurants for remodeling and scheduled "black out" periods.
Retail, media and other revenues for Q1-97 were $155,000 compared to $145,000
for Q1-96. The increase of $10,000 or 6.9% is primarily related to increased
contract training and R&D revenue, royalties from book sales offset by lower
than expected revenues in the Academy's retail shop.
Total cost of sales for Q1-97 were $702,000 compared to $728,000 for Q1-96. The
decrease of $26,000 or 3.6% is primarily related to lower food and beverage
costs due to better cost control, and lower merchandise costs due to lower
activity in the Academy's retail shop offset by higher supply costs.
Total fixed costs for Q1-97 were $903,000 compared to $935,000 for Q1-96. The
decrease of $32,000 or 3.4% is primarily related to lower repairs and
maintenance expense.
Total operating expenses for Q1-96 were $1,841,000 compared to $2,422,000 for
Q1-96. The decrease of $581,000 or 24.0% is primarily related to lower
compensation and benefits expense and outside service costs resulting from the
Academy's restructuring plan implemented during the fourth quarter of fiscal
year 1996.
LIQUIDITY AND CAPITAL RESOURCES
Historically, the Academy financed its growth from the issuance of equity
securities in private and public transactions, borrowings from related parties,
lease and debt financing obligations and through cash flow provided by
operations.
At September 30, 1996, the Academy's principal sources of liquidity included
cash and cash equivalents of $3,284,000, including $615,000 of restricted cash
equivalents held in certificates of deposit and pledged as collateral for term
loans, and net accounts receivable of $2,993,000. The Academy has long-term
obligations of $708,000 and working capital of $888,000 at September 30, 1996.
Long-term obligations reflects the conversion of $1,400,000 Convertible Notes
into Series A Preferred Stock on August 23, 1996.
As of September 30, 1996 the Academy was indebted for a term loan that provides
for borrowings up to $750,000 with interest at 1% above the prime rate of the
bank, the proceeds of which are to be used to finance the purchase of new
equipment. The outstanding principal balance of the term loan is to be repaid
in 36 monthly installments of approximately $21,000. This term loan is
collateralized by all of the Academy's equipment and a certificate of deposit,
the balance of which shall not at any time be less than 50% of the principal
balance outstanding under the term loan. As of September 30, 1996, the Academy
had approximately $229,000 outstanding under this term loan and maintained a
certificate of deposit for $355,000 in accordance with this provision. The term
loan agreement contains various affirmative covenants including certain
covenants and ratios which the Academy must maintain. As of September 30, 1996,
the Academy was in violation of certain covenants. As of September 30, 1996,
the term
<PAGE>
loan was classified as current and was repaid during October 1996. During
September, the Academy terminated a $500,000 revolving line of credit with this
bank. The Academy had no outstanding borrowings under the line of credit.
In June 1996, the Academy obtained a term loan from another bank in the amount
of $500,000, the proceeds of which were used for working capital requirements.
Any outstanding principal balance under the second term loan shall be due and
payable on July 15, 1997. The term loan provides for interest to be paid
monthly at 1% above the bank's index rate for 90-day business certificate of
deposits. The second term loan is collateralized by a certificate of deposit at
the same bank in the amount of $500,000. As of September 30, 1996, the Academy
had $500,000 outstanding under the term loan and maintained a certificate of
deposit of $500,000 in accordance with this provision. The loan was classified
as a current liability and was repaid during October 1996.
<PAGE>
PART II
ITEM 1. LEGAL PROCEEDINGS
There are various legal claims and lawsuits pending by and against the Academy
that, in the opinion of management, after consultation with legal counsel, are
not expected to have in any material adverse effect on the results of operations
or financial position of the Academy.
ITEM 2. CHANGES IN SECURITIES None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None
ITEM 5. OTHER INFORMATION None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a.) EXHIBITS
Exhibit No. Description
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10.29 Lease for premises at Natividad Plaza, Salinas, CA
10.30 Agreement between Registrant and Noel-Levitz,
Inc. dated July 1, 1996
11.0 Statement re: Computation of Earnings per Share
27.0 Financial Data Schedule
(b.) REPORTS ON FORM 8-K None
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934, as
amended, the registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CALIFORNIA CULINARY ACADEMY, INC.
November 19, 1996 By: /s/ Robert A. Stoffregen
------------------------------------------
Robert A. Stoffregen
Chief Financial Officer and
Director of Development
<PAGE>
EXHIBIT 10.29
LEASE AGREEMENT
THIS LEASE is entered into this 15th day of July, 1996, in the county of
Monterey, State of California, by and between NATIVIDAD PLAZA PARTNERS
[hereinafter called "Landlord"] and The California Culinary Academy, Inc., a
California Corporation, [hereinafter called "Tenant"].
Landlord hereby leases to Tenant and Tenant hires from Landlord those
certain premises situated in the County of Monterey, State of
California, commonly known as Space F-1, Natividad Plaza Shopping
Center, Salinas, California, consisting of approximately 3780 square
feet, and more particularly shown in the drawing attached hereto as
Exhibit "A".
1. LEASE TERM. The term of this lease shall be for a period of five
years, commencing on July 1, 1996, and expiring on midnight of the last day
of June 2001. Should Tenant hold over and continue in possession after
expiration of the term of this lease or any extension thereof, Tenant's
continued occupation shall be considered a month-to-month tenancy subject to
all the terms and conditions of this lease.
Notwithstanding any provision in this lease to the contrary, Tenant shall
have the right, upon thirty (30) days notice to Landlord, to terminate this
lease if, within the twelve month period following the commencement of the
first class at the Food Service Center, the aggregate gross revenues from
tuition, product sales and all related revenues derived from the conduct of
the Food Service Center during such period are less than $700,000.00. In
the event that Tenant elects to terminate on the foregoing basis, the sum of
$100,500.00 shall be promptly paid to Tenant as a refund of unamortized
leasehold improvement cost which are hereby deemed to have been paid for by
Tenant.
2. RENT. Upon the first day of each month, during the lease term,
beginning January 1, 1997 through the month of June 2001, Tenant shall pay to
Landlord the greater of either sum of Three Thousand Eight Hundred Seventy
Dollars ($3,870.00), or 8% of gross sales for the training facility at this
location. All rental payments for the balance of the lease term shall be made
on the first day of each month. Tenant shall pay additional rent as set forth
in this Lease Agreement.
3. COST OF LIVING ADJUSTMENTS. There shall be no Cost of Living
Adjustments to this lease during its initial term.
4. LATE CHARGES AND DISHONORED CHECKS. If Tenant shall fail to pay any
monthly rent payment by the 20th day of the month such payment is due, a late
charge shall be assessed equal to six per cent (6%) of the rent payment. In
the event that any check or other instrument tendered by Tenant is
dishonored, in addition to late charges as specified above, Tenant shall pay
an additional fee of $10.00 to reimburse Landlord for administrative costs
incurred in connection with such dishonored instrument.
1
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5. COMMON AREA AND EXTERIOR MAINTENANCE COSTS. As additional rent,
Tenant shall pay to Landlord an amount equal to 10.36% of the actual cost of
common area and exterior maintenance for Natividad Plaza Shopping Center.
Common area and exterior maintenance are defined as all areas and facilities
outside the premises described in Exhibit "A" and within the shopping center
project that are provided and designated by Landlord from time to time for
the general nonexclusive use of Landlord, Tenant, and other Tenants of the
shopping center project and their respective employees, suppliers, customers,
and invitees, including but not limited to exterior surfaces of the
buildings, including roofs, common entrances, lobbies, corridors, stairwells,
public restrooms, elevators, parking areas, loading and unloading areas,
trash areas, roadways, sidewalks, landscaped areas, and the cost of
operating, managing, insuring, equipping, lighting, repairing, replacing and
maintaining, and fire protection for the same. For the first year, Tenant
shall pay to Landlord the sum of $1036.00 monthly, on the first day of each
month, which represents an estimate of the actual common area and exterior
maintenance costs chargeable to Tenant; annually Landlord shall furnish to
Tenant the actual charges incurred, and any excess over the estimate shall be
paid by Tenant to Landlord within ten (10) days, or any overage paid by
Tenant to Landlord shall be returned by Landlord to Tenant within (10) days.
At the beginning of each successive year of the term of this Lease and all
options, extensions, and renewals thereof, Landlord shall provide Tenant with
an estimate of the actual common area and exterior maintenance costs
chargeable to Tenant, as a monthly sum, and Tenant shall pay said sum on the
first day of each month, subject to annual adjustment as provided above.
Payments due for common area and exterior maintenance costs shall be subject
to the provisions of Paragraph 4 of this Lease relating to late charges and
dishonored checks. Tenant has the non-exclusive right to use the common areas.
6. USE OF PREMISES. The leased premises shall be used for the sole
purpose of operating and conducting thereon and therein a Food Service Center
to include culinary training, restaurant and bakery operations and retail
sales of culinary supplies and merchandise and for such purposes as may be
reasonably incidental thereto, and none other, without the written consent of
Landlord. Tenant shall be permitted to use the parking lot for marketing and
promotional events subject to Landlord's approval.
7. UTILITIES. Tenant shall pay all utility costs incurred in connection
with Tenant's occupation and use of the leased premises.
8. SECURITY DEPOSIT. Tenant shall upon execution of this lease deposit
with Landlord $0 as security for the full and faithful performance of each
and every term, provision, covenant, and condition of this lease. In the
event that Tenant defaults in respect of any term, provision, covenant, or
condition of this lease, including but not limited to the payment of rent,
Landlord may use, apply or retain the whole or any part of the deposit for
the payment of any other sum which Landlord may spend or be required to spend
by reason of Tenant's default. Any remaining portion of this security
deposit, after any lawful deductions as above, shall be returned to Tenant no
later than two weeks after termination of the tenancy, directed to the
address left by Tenant or to Tenant's last known address. Tenant shall not be
entitled to interest on said security deposit.
9. REAL PROPERTY TAXES. As additional rent, Tenant shall pay to
Landlord an
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amount equal to 10.36% of the actual amount of all real property taxes
assessed against Natividad Plaza Shopping Center. During the first year of
this Lease, on the first day of each month, Tenant shall pay to Landlord the
sum of $233.00, which represents an estimate of the actual amount of real
property taxes chargeable to Tenant; annually, Landlord shall furnish to
Tenant the actual charges incurred for real property taxes, and any excess
over the estimate shall be paid by Tenant to Landlord within ten (10) days,
or any overage paid by Tenant to Landlord shall be returned by Landlord to
Tenant within ten (10) days. At the beginning of each successive year of the
term of this Lease and all options, extensions, and renewals thereof,
Landlord shall provide Tenant with an estimate of the actual property tax
amounts chargeable to Tenant, as a monthly sum, and Tenant shall pay said sum
on the first day of each month, subject to annual adjustment as provided
above. Payments due for real property taxes shall be subject to the
provisions of Paragraph 4 of this Lease relating to late charges and
dishonored checks. Real property tax shall include any form of real estate
tax or assessment, general or special, ordinary or extraordinary, and any
commercial rental tax, improvement bond or bonds, levy or tax imposed on the
property or any portion thereof by any authority having the direct or
indirect power to tax, including any city, county, state or federal
government, or any school, agricultural, sanitary, fire, street, drainage, or
other improvement district thereof.
10. MAINTENANCE BY TENANT. Tenant shall at Tenant's own cost and
expense, keep and maintain all interior portions of the leased premises in
good order and repair and in as safe and clean a condition as they were when
received by Tenant, reasonable use, casualty and wear excepted. Said
obligations shall include maintenance of exterior entrances, all partitions,
doors, door jambs, door closes, door hardware, fixtures, equipment and
appurtenances thereof, and plumbing, electrical, lighting, and heating
systems which protrude in the leased premises. Tenant shall at Tenant's sole
cost and expense repair and replace the glass in any display window on the
premises that becomes broken, regardless of cause. If Tenant refuses or
neglects to repair items properly required under this paragraph as soon as
reasonably possible after written demand, Landlord may make such repairs
without any liability to Tenant for any loss or damage that may accrue to
Tenant's merchandise, fixtures, or other property or the Tenant's business by
reason thereof, and upon completion thereof, Tenant shall pay Landlord's
costs for making such repairs plus 20% for overhead, upon presentation of
bill therefore, as additional rent.
11. MAINTENANCE BY LANDLORD. Landlord shall maintain in good condition
and repair the exterior roof, exterior walls and structural supports, and all
other portions of the building in which the leased premises are situated
except as provided in the preceding paragraph. There shall be no obligation
for the Landlord to repair pursuant to this section until after the
expiration of three (3) days' written notice from Tenant to Landlord of the
need for such repair. The cost thereof shall be borne pursuant to Paragraph 5
of this Lease Agreement.
12. ALTERATIONS. Tenant shall not have the right to make any
alterations, improvements or additions to the leased premises without
first obtaining the Landlord's written consent. Such consent shall not
be unreasonably withheld. Tenant shall present to Landlord plans and
specifications for such work at the time consent is sought. Tenant shall
not cause or permit any lien to be placed on or accrue upon the leased
premises or any part thereof by reason of anything done or omitted to be
done upon said premises by or with the permission of Tenant. All
alterations, additions, improvements, and fixtures, except furniture and
trade fixtures, made or
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placed in or on the premises by Tenant or any other person shall be the
property of Landlord, and upon termination of this lease shall remain upon
and be surrendered with the premises as a part thereof. Any floor covering
affixed to the floor of the premises shall be and become the property of
Landlord.
13. INSTALLATION AND REMOVAL OF TRADE FIXTURES. Tenant at Tenant's sole
cost and expense may install in the leased premises such fixtures and
equipment as Tenant deems advisable, and may remove the same from the leased
premises at any time during the term of the lease; provided, however, that no
injury shall be done to the structural strength of the building when said
fixtures or equipment are removed, and the building shall be restored to
substantially its original condition, casualty, reasonable wear and tear
excepted. Any trade fixtures not removed from said premises by Tenant prior
to the expiration or sooner termination of this lease shall be deemed
abandoned by Tenant and shall become the property of Landlord.
14. ACCESS BY LANDLORD. Landlord or its designee shall be permitted to
enter upon the leased premises at reasonable times during business hours,
and in emergencies at all times, to inspect the premises, to make repairs,
additions or alterations to the premises, the building of which the premises
form a part, or any property owned or controlled by Landlord, or to exhibit
the premises to prospective tenants 90 days prior to the end of the lease
term.
15. SIGNS. Tenant shall be entitled to maintain a sign consistent with
those found in Natividad Plaza Shopping Center, pursuant to approval of the
City of Salinas. Tenant shall not place or maintain, nor permit any other
person to place or maintain, any sign, awning, canopy, marquee, or other
advertising on the premises owned or controlled by Landlord without the prior
written consent of Landlord.
16. EXTERIOR DISPLAYS. Tenant shall not keep or display any merchandise
on or otherwise obstruct the common area or the sidewalks, walkways or
courtyards adjacent to the building of which the leased premises are a part
without Landlord's consent.
17. INDEMNIFICATION OF LANDLORD. Tenant agrees to indemnify and save
Landlord harmless from and against any and all claims arising from any act,
omission or neglect of Tenant, or its agents, servants, employees,
contractors, licensees, or arising from any accident, injury or damage
whatsoever caused to any person or property occurring on, in or about the
leased premises.
18. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in full force during the term of this lease or any extension thereof, a
policy of comprehensive public liability insurance, insuring Tenant and
Landlord, against any liability arising out of the ownership, use, occupancy,
or maintenance of the premises and all areas appurtenant thereto. Such
insurance shall be in the amount of not less than One Million Dollars
($1,000,000.00) for combined single limit bodily injury and property damage
coverage. The limit of any such insurance shall not, however, limit the
liability of the Tenant hereunder. Tenant may provide this insurance under a
blanket policy, provided that said insurance shall have a Landlord's
protective liability endorsement attached thereto. If Tenant shall fail to
procure and maintain said insurance, Landlord may, but shall not be required
to procure and maintain same, and at the expense of
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Tenant. Tenant shall deliver to Landlord, prior to right of entry, copies of
policies of liability insurance required herein, or certificates evidencing
the existence and amounts of such insurance, with loss payable clauses
satisfactory to Landlord. No Policy shall be cancelable, or subject to
reduction of coverage without thirty (30) days' notice to Landlord at the
address indicated below. All such policies shall be written as primary
policies, not contributing with and not in excess of coverage which Landlord
may carry.
19. WAIVER OF SUBROGATION. Each of the parties hereto waives any and all
rights of recovery against the other or against any other Tenant or occupant
of the subject premises or against the officers, employees, agents,
representative, customers and business visitors of such other party or of
such other tenant or occupant of the subject premises for loss of or damage
to such waiving party or its property or the property of others under its
control, arising from any cause insured against under the standard form of
fire insurance policy with all permissible extension endorsements covering
additional perils or under any other policy of insurance carried by such
waiving party in lieu thereof, to the extent such loss or damage is insured
against by such policy. Such waiver shall not be binding on either party
unless the same is permitted by each party's insurance carrier without the
payment of additional premium.
20. EMINENT DOMAIN. Should during the term of this lease title to all of
the leased premises or so much thereof be taken by any public or quasi-public
use under any statute or by right of eminent domain, so that a reasonable
amount of reconstruction of the premises will not result in the premises
being reasonably suitable for Tenant's continued occupancy for the use and
purposes for which the premises are leased, this lease shall terminate as of
the date that possession of said premises, or part thereof, be taken.
If any part of the premises shall be so taken and the remaining part
thereof (after reconstruction of the then existing buildings in which the
premises are located) is reasonably suited for Tenant's occupancy, this lease
shall, as to the part so taken, terminate as of the date that possession of
said part be taken, and the rent shall be reduced in proportion to the amount
of floor area taken.
All compensation awarded or paid upon such a total or partial condemnation
shall belong to and be the sole property of Landlord; provided, however, that
Tenant shall be entitled to any award made for loss of business, depreciation
to and cost of removal of stock and fixtures.
21. SURRENDER OF PREMISES. On expiration or sooner termination of this
lease, or any extensions or renewals of this lease, Tenants shall promptly
surrender and deliver the leased premises to Landlord in as good condition as
they now are at the date of this lease, casualty and reasonable wear and tear
excepted.
22. INSOLVENCY OF TENANT. Tenant agrees that in the event all or
substantially all of the tenant's assets are placed in the hands of a
receiver or trustee, and such receivership or trusteeship continues for a
period of thirty (30) days, or should Tenant make an assignment for the
benefit of creditors or be adjudicated a bankrupt, or should Tenant institute
any proceedings under the bankruptcy act or under any amendment thereof which
may hereafter be enacted, or under any other act relating to the subject of
bankruptcy wherein Tenant seeks to be adjudicated a
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bankrupt, or to be discharged of its debts, or to effect a plan of
liquidation, composition, arrangement or reorganization, or should any
involuntary proceeding be filed against Tenant under any such bankruptcy laws
and Tenant consent thereto or acquiesce therein by pleading or default, then
this lease or any interest in and to the leased premises shall not become an
asset in any of such proceedings, and, in any such event and in addition to
any and all rights and remedies of Landlord hereunder or by law provided, it
shall be lawful for Landlord to declare the term hereof ended and to reenter
the leased premises and take possession thereof and remove all persons
therefrom, and Tenant shall have no further claim thereon or hereunder.
23. ASSIGNMENT AND SUBLETTING. Tenant shall not transfer, assign or
sublet the leased premises in whole or in part, or any right or interest in
said premises, without the express written consent of Landlord first
obtained. Landlord shall not unreasonably withhold such consent. A consent by
Landlord to one transfer, assignment, or subletting, or one occupation of the
premises by another person shall not be deemed a consent to any subsequent
transfer, assignment, subletting or occupation. Should Tenant attempt to make
or suffer to be made any such transfer, assignment, subletting or occupation,
except with the consent of Landlord as provided above, or should any of
Tenant's rights under this lease be sold or otherwise transferred by or under
court order or legal process or otherwise, or should Tenant be adjudged
insolvent or bankrupt, then in any of the foregoing events Landlord may, at
its option, terminate this lease forthwith by written notice thereof to
Tenant.
Any request for assignment or subletting shall be made by the Tenant in
writing, to the Landlord, and shall include the following documentation:
(1) all transaction documents;
(2) all financing documents;
(3) the identity of any formal escrow holder;
(4) escrow instructions;
(5) a summary of the proposed assignee's or sublessee's business
history;
(6) a personal financial statement of the proposed assignee or
sublessee or proposed guarantor;
(7) proposed assignee's or sublessee's business and personal tax
returns for the past three years;
(8) a copy of the proposed assignee's or sublessee's business plan;
(9) a list of all key employees, partners, and financial backers in
the proposed venture;
(10) a description of improvements to be made to the premises and how
they are to
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be financed; and
(11) business, trade, and personal references.
24. REFINANCING BY LANDLORD. Landlord shall have the right at any time
to sell the premises and assign its interest in the lease without
further recourse on the part of Tenant. In the event that Landlord
shall sell its interest in the premises during the term of this
lease, then after the effective date of such transfer Landlord
shall be released and discharged from any and all further
obligations and responsibilities under this lease except those
already accrued.
25. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lessor amount than the rent herein provided shall be
deemed to be other than on account of the earliest rent due and
payable hereunder, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be
deemed an accord and satisfaction, and Landlord may accept any such
check of payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other proper remedy.
26. SUBORDINATION AND OFFSET. Tenant agrees that this lease
shall be subject to any mortgage, trust deed, or encumbrance
hereafter placed upon said property by Landlord or its successors
in interest to secure the payment of monies loaned, interest
thereon, and other obligations. Tenant also agrees to execute,
acknowledge and deliver to Landlord, from time to time upon
request, an offset statement or estoppel certificate containing such
facts pertaining to this lease as a purchaser or lender may
require, provided such facts are within the knowledge of or are
available to Tenant.
27. DEFAULT. In the event of default in the payment of any
installment of rent, or in the performance of any other covenant or
condition of this lease, which default may continue for ten (10)
days after notice and demand in writing by Landlord to correct such
default, or if Tenant abandons the property prior to the expiration
of the term provided for in this agreement, the Landlord may at
his option terminate this lease and recover damages from Tenant,
including (a) the worth at the time of award of the unpaid rent
which has been earned at the time of termination; (b) the worth at
the time of award of the amount by which the unpaid rent which
would have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; (c) the worth at the time of award of
the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss for
such period that Tenant proves could be reasonably avoided; and (d)
any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform his
obligations under this lease, or which in the ordinary course of
things would be likely to result therefrom. Alternatively, in the
event of such default, Landlord may elect not to terminate the
Tenant's right to possession, and the lease shall then remain in
effect and Landlord may enforce rights and remedies under the
lease, including the right to recover rent as it becomes due.
28. CUMULATIVE REMEDIES. All remedies given to Landlord in
this lease shall not be exclusive but shall be cumulative and in
addition to all remedies now or hereafter allowed by law.
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29. TENANT'S PROPERTY. Tenant agrees to insure the contents of
the building against fire, theft, vandalism, and such other hazards
as are readily insurable under a normal "fire and extended
coverage" policy, and to provide Landlord with a copy of such
policy or any policies, and any modifications or replacements
thereto, within thirty (30) days of execution of this lease. Tenant
shall be responsible for and shall pay before delinquency all
municipal, county or state taxes assessed during the term of this
lease against any leasehold interest or personal property of any
kind, owned by or placed in, upon, or about the leased premises by
Tenant.
30. LOSS AND DAMAGE TO TENANT'S PROPERTY. Landlord shall not be
liable for any damage to property of Tenant or of others located on
the leased premises, nor for the loss of or damage to any property
of Tenant or of others by theft or otherwise. Landlord shall not be
liable for any injury or damage to persons or property resulting
from fire, explosion, falling plaster, gas, electricity, water, rain
or leaks from any part of the leased premises or the common areas,
or from the pipes, appliances or plumbing works or from the rook,
street or subsurface or from any other place or by any other cause
of whatsoever nature. Landlord shall not be liable for any such
damage caused by other tenants or persons in the leased premises,
occupants of adjacent property, of the common area, or the public,
or caused by operations and construction of any private, public or
quasi-public work. All property of Tenant kept of stored on the
leased premises shall be so kept or stored at the risk of Tenant
only and Tenant shall hold Landlord harmless from any claims arising
out of such damage to the same, including subrogation claims by
Tenant's insurance carriers, unless such damage shall be caused by
the willful act or gross neglect of Landlord, and through no fault
of Tenant.
31. WAIVER. The failure of Landlord to enforce any right or
remedy for violation by Tenant of any term or condition of this
agreement shall not be deemed to be a consent by Landlord to such
violation, and shall not bar, estop or prevent Landlord from
enforcing such right or remedy either for such violation or for any
subsequent breach of any term, condition or covenant hereof.
32. LEGAL EXPENSES. Tenant shall pay to Landlord all amounts
for reasonable attorneys' fees incurred by Landlord in connection
with any breach or default under this lease or incurred in order to
enforce the terms or provisions hereof. Such amount shall be
payable upon demand. In addition, in the event that any action
shall be instituted by either of the parties hereto for the
enforcement of any of its rights or remedies in or under this
lease, the prevailing party shall be entitled to recover from the
other party, all costs incurred by said prevailing party in said
action, including reasonable attorneys' fees to be fixed by the
court therein.
33. NOTICES. All notices in writing required by this agreement
may be personally served or may be mailed to the following
addresses:
Landlord: Natividad Plaza Partners
c/o Central California Management Co.
80 Garden Ct., Ste. 210
Monterey, CA 93940
Phone (408) 646-1900 Fax (408) 656-1299
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Tenant: The California Culinary Academy
625 Polk St.
San Francisco, CA 95102
34. TIME. Time is of the essence of this agreement.
35. ENTIRE AGREEMENT. This agreement constitutes the entire
agreement between the parties pertaining to the subject matter
contained in it and to the leased premises, and supersedes all
prior and contemporaneous leaves, agreements, representations, and
understandings of the parties. No supplement, modification, or
amendment shall be binding unless executed in writing by all of the
parties.
36. PARTIAL INVALIDITY. If any term, covenant, or condition of
this lease or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of
this lease, or the application of such term, covenant, or condition
to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each
term, covenant, or condition of this lease shall be valid and be
enforced to the fullest extent permitted by law.
37. SUCCESSORS. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and
bind the several respective heirs, executors, administrators,
successors, and assigns of the said parties; and if there shall be
more than one tenant, they shall all be bound jointly and severally
by the terms, covenants and agreements herein. No rights, however,
shall inure to the benefit of any assignee of Tenant, unless the
assignment to such assignee has been approved by Landlord as
provided above.
38. NO REPRESENTATIONS. Tenant agrees that Landlord has not
made and Tenant is not relying on any representations, whether
verbal or written, by Landlord, his agents or employees.
39. CHRONIC DELINQUENCY. Chronic delinquency by Tenant with
payment of rent, monthly charges, periodic charges or any other
amounts required to be paid by Tenant under this Lease shall
constitute a breach of this Lease. Chronic delinquency shall be
defined as any failure by Tenant to pay or submit within ten (10)
days of the due date its rent and/or charges required for any three
(3) months, consecutive or nonconsecutive, during any twelve (12)
month period.
40. HAZARDOUS AND TOXIC SUBSTANCES. Tenant shall not use, generate,
store or dispose, or give consent to anyone else to use, generate, store
or dispose, any hazardous, toxic, or radioactive materials
[hereinafter referred to collectively as "Hazardous Materials"]. As
herein used, Hazardous Materials shall include, without limitation,
those materials identified in Sections 66680 through 66685 of Title 22
of the California Administrative Code Division 4, Chapter 30, as amended
from time to time, and those substances defined as "hazardous
substances", "hazardous materials', and "hazardous waste", or other
similar designations in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 USC, Section 9601
ET SEQ., the Hazardous Materials Transportation Act, 49 USC, Section
1801 ET SEQ., and any other governmental statutes, laws, ordinances,
rules, and regulations now or hereafter in effect. Tenant
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shall indemnify, defend and hold Landlord from and against any and
all claims, damages, costs and liabilities, including all
foreseeable and unforeseeable consequential damages, directly or
indirectly arising out of the use, generation, storage, or disposal
of Hazardous Materials by Tenant or any person claiming under
Tenant, including, without limitation, the cost of any required or
necessary repair, cleanup, or detoxification and the preparation of
any closure or other required plans, whether such action is
required or necessary prior to or following the termination of this
lease, to the full extent that such action is attributable,
directly or indirectly, to the use, generation, storage, or
disposal of Hazardous Materials by Tenant or any person claiming
under Tenant. Neither the written consent by Landlord to the use,
generation, storage or disposal of Hazardous Materials nor the
strict compliance by Tenant with all statutes, laws, ordinances,
rules and regulations pertaining to Hazardous Materials shall
excuse Tenant from Tenant's obligation of indemnification pursuant
to this paragraph. Tenant's obligation pursuant to the foregoing
indemnity shall survive the termination of this lease.
41. WAIVER OF JURY. Landlord and Tenant hereby waive their
respective right to to trial by any cause of action, claim,
counterclaim or cross-complaint in any action, proceeding and/or
hearing brought by either Landlord against Tenant or Tenant against
Landlord on any matter whatsoever arising out of, or in any way
connected with, this lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises, or any claim of
injury or damage, or the enforcement of any remedy under any law,
statute, or regulation, emergency or otherwise, now or hereafter in
effect.
42. OPTION. In the event that Tenant is not in default with
respect to any of the provisions of this Lease agreement, Tenant
shall have the right to extend the lease term for one additional
period(s) of five (5) years provided that Tenant notifies Landlord
in writing not less than ninety (90) days prior to the termination
of the initial lease term of Tenant's intention to extend. The
amount of monthly rental shall be the fair market rental as of the
date of commencement of the option period as mutually agreed upon
by the parties, and shall otherwise be subject to all of the terms
and conditions of this Lease, including but not limited to triple
net charges and CPI adjustments. In the event the parties cannot
agree upon the amount of fair market rental, the parties shall
agree upon an appraiser to fix the rental for the option period at
fair market rental. In the event the parties cannot agree upon an
appraiser, either party may petition the Superior Court of the
State of California for the County of Monterey to have the court
appoint such an appraiser with each party to bear one-half of the
cost of such appraiser.
43. CONDITION OF PREMISES AND CONTINGENCY. Tenant agrees to
promptly apply for necessary permits, consents and a certificate of
occupancy. In the event that Tenant is not able to obtain such
permits, consents or certificate of occupancy without agreeing to
conditions which in Tenant's sole judgement are unduly burdensome
to Tenant, Tenant shall have the right to terminate this lease and
receive a full refund of any moneys paid to Landlord hereunder.
Tenant shall not unreasonably terminate this lease. Landlord
warrants that the premises are in compliance with the Americans
with Disabilities Act as of the date hereof.
44. TENANT IMPROVEMENTS. All tenant improvements shall be paid
for by Tenant. Tenant agrees to pay Landlord One Hundred Fifty
Thousand Dollars ($150,000.00) for all existing Tenant
improvements. Tenant agrees to deposit said sum with Landlord as
consideration
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for early possession, free rent and other lease concessions on
July 1, 1996.
45. APPROVAL OF PLANS. Tenant shall submit all plans,
specifications, and proposed choice of contractor to Landlord for
approval; Landlord shall not unreasonably withhold approval of the
same. Landlord's approval or disapproval shall be communicated in
writing within five (5) business days of submission of the same to
Landlord. In the event Landlord does not approve the same, Tenant
may terminate this Lease, with neither party having any obligation
to the other, provided that Tenant gives written notice of the same
to the Landlord within five (5) days of the date Landlord's
approval or disapproval was required to be furnished.
46. LIENS. Tenant agrees to keep all of the leased premises
and every part thereof and all buildings and other improvements
within which the same are located free and clear of and from any
and all mechanic's, materialmen's and other liens for work or labor
done, service performed, materials, appliances, transportation or
power contributed, used or furnished to be used in or about the
leased premises to or on the order of Tenant, and Tenant shall
promptly and fully pay and discharge any and all claims upon which
any such lien may or could be based within ten (10) days after
learning of the existence thereof and Tenant shall save and hold
Landlord and all of the leased premises and all buildings and
improvements within which the same are contained free and harmless
of and from any and all such liens and claims of liens and suits or
other proceedings arising out of materials or services furnished to
or on the order of Tenant. Tenant shall provide Landlord five (5)
business days' notification prior to the commencement of any work
or improvement to allow Landlord opportunity to post a notice of
nonresponsibility.
TENANT: LANDLORD:
CALIFORNIA CULINARY ACADEMY NATIVIDAD PLAZA PARTNERS
By illegible By illegible
------------------------- -----------------------
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EXHIBIT "A"
[Restaurant Floor Plan]
<PAGE>
EXHIBIT 10.30
MEMORANDUM OF AGREEMENT
THIS AGREEMENT is made the 1st day of July 1996, by and between California
Culinary Academy (hereinafter referred to as "Institution") and Noel-Levitz
Centers, Inc., d/b/a USA Group/Noel-Levitz (hereinafter referred to as
"Noel-Levitz").
FOR CONSIDERATION of the mutual promises and covenants contained in this
document, the Institution and Noel-Levitz agree as follows:
I. PROJECT SCOPE
A. Noel-Levitz agrees:
1. To provide 12 months of Ongoing Enrollment Consulting.
This will include specific, on-site, monthly assistance, and
constant monitoring, in building a prospecting, marketing,
recruiting, and communication systems. Specifically, this will
include:
a. Assistance in developing and implementing the master enrollment
plan;
b. Assistance in designing and implementing a comprehensive
written/personal communication system;
c. Creating a detailed plan for generating inquiries from among
those students that fit your Institutional priorities;
d. Developing an integrated system for qualifying, grading and
managing the prospect pool;
e. Creating a management reporting structure to track and evaluate
results;
f. Monitoring all results and systems in order to make
recommendations about mid-course corrections; and
g. Outlining 30 and 90 day successive action plans and progress
benchmarks.
2. To provide the Effective Admissions Counselor Training Program, a
two-day on-campus training program for admissions recruiters.
3. License EMASPLUS (the "System") to the Institution pursuant to the
terms of the EMASPLUS License Agreement attached hereto as Exhibit
A (the "License Agreement"). The License Agreement will allow the
Institution to concurrently use the System on a maximum of 10
computer work stations.
4. Provide the following services (the "Services") in connection
with implementation of the System:
a. One day on-campus visit to identify and address software
administration, integration and data exchange needs;
b. Provide documentation and telephone consultation to assist the
Institution in its preparation of data exchange and the requirements
necessary to interface with the Institution's current systems (the
Institution will be responsible for
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making any necessary changes to allow the System to interface
correctly with the Institution's current systems);
c. Ordering the Microsoft FoxPro-TM- software and Symantec THE NORTON
pcANYWHERE-TM- software on behalf of the Institution and
coordinating the shipment of such software directly to the
Institution;
d. Telephone consultation to confirm that the Institution has
appropriately completed the System preparation activities;
e. Two-day on-campus installation and training session for the
Institution's key personnel responsible for operating the
System, including providing assistance to the Institution's network
administrator in installing the System on the Institution's
computer system network (the Institution will be responsible for
any necessary changes to the Institution's computer system network);
f. Three-day on-campus training session for all professional and
support staff who will be using the System; and
g. Two-day on-campus telecounseling training session for up to 20 of
the Institution's student telecounselors and key personnel
responsible for the operation of the telecounseling component of
the System.
5. Provide two years of technical support services and maintenance (the
"Technical Support and Maintenance") on the System pursuant to the
terms of the EMASPLUS Technical Support and Maintenance Agreement
attached hereto as Exhibit B (the "Technical Support and Maintenance
Agreement"). Additional years of Technical Support and Maintenance
will be provided to the Institution at the annual fee set forth in
the Technical Support and Maintenance Agreement.
6. To assist the Institution using ForecastPLUS-TM- to identify those
students most and least likely to enroll for the 1997-98 academic year.
We will build Institution specific models to predict probability of
enrollment at all stages of the enrollment funnel: prospectus to
inquiry, inquiry to applicant and acceptance to matriculant.
Specifically, this includes:
a. Demographic analysis of the Institution's enrollment data;
b. One day on-campus presentation of the models, including a written
report with recommendations for integrating the models into
Institutional marketing and recruiting strategies;
c. An algorithm for Institutional implementation of the scoring
process for admitted to enrolled students; and
d. External scoring of the institutional database with the probability
rating; once for the prospect file, three times for the inquiry
file and once for the admitted file, annually.
7. To advise the Institution using the Financial Aid Leverage Analysis
regarding the formulation and implementation of financial aid awarding
and packaging strategies designed to support new student enrollment
and revenue goals over the next two years. This component includes:
a. An annual historical comparison of financial aid packages offered
to enrolled and non enrolled students for up to five unique
populations for admitted students, as
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defined by the institution, including a one day on-campus visit for
data collection discussions;
b. Up to three days of annual on-site assistance with institutional,
admission/financial aid goal-setting based upon analysis and
interpretation of the historical analysis;
c. Annual assistance with formulating recommended awarding strategies
that support institutional enrollment goals;
d. Annual assistance in implementing the Awarding Strategy;
e. Annual assistance in managing and monitoring progress toward goals;
f. Annual return (retention) analysis;
g. Annual four year enrollment and net revenue projection modeling; and
h. Annual assistance to implement the Early Estimator Program to
pre-qualify students whose decisions to apply and enroll at the
Institution and might be influenced adversely by the cost of
attendance. This includes:
1.) An annual customizable early estimating form;
2.) Four key implementation letters and promotional strategies;
3.) Annual software to estimate eligibility and generate periodic
management reports; and
4.) Staff training to ensure effective presentation and
implementation of the strategy.
In the event that the Institution provides written notification to
Noel-Levitz by February 1, 1997 of its desire not to conduct the
Financial Aid Leverage Analysis, then Noel-Levitz will be released
from its obligation to perform the Financial Aid Leverage Analysis,
with the exception of one (single year) Annual Return Analysis for
which data currently exists.
B. The Institution agrees:
1. To identify the person(s) who will be the Institutional contact(s) for
the project.
2. To provide the historical data requisite for the Financial Aid Leverage
Analysis and ForecastPLUS in a manner and in a form Noel-Levitz
specifies which permits the successful and timely completion of the
analyses.
3. To provide personnel, equipment and facilities to utilize the programs
and software provided by Noel-Levitz.
4. To provide the computer hardware (including modem and dedicated analog
telephone line) required to operate the System, and to ready this
hardware for installation of the System. System technical
specifications are attached hereto as Exhibit C.
5. To have a computer systems network in place and operational prior to
installation of the System and to have the Institution's network
administrator available during installation of the System to make
necessary configuration changes.
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6. To provide conversion test data by a mutually agreed upon date. The
Institution understands that if such data is not provided by such
date, a substantial delay in the installation of the System and the
completion of the project is likely to occur.
7. To provide an adequately equipped on-campus training facility to be
used by Noel-Levitz personnel during System training.
8. To execute and conform to the provisions of the License Agreement.
9. To execute and conform to the provisions of the Technical Support and
Maintenance Agreement.
10. That it is responsible for the actual implementation of all suggested
actions. A representative of Noel-Levitz will work closely with the
administrative staff on the implementation of the enrollment program.
11. That all financial aid goal setting, awarding, packaging, and net
revenue decisions which are made are Institutional decisions.
12. To take full responsibility for the actual mailing, communication,
goal setting, awarding, packaging, and net revenue decisions and their
outcomes.
13. That Noel-Levitz shall not be responsible for reviewing or providing
any advice regarding the Institution's compliance with any Federal,
state or local statutes or regulations pertaining to financial aid
programs.
14. It understands that Noel-Levitz will be working with other colleges and
universities throughout the United States and Canada, providing
services similar to those described herein.
15. That it understands that Noel-Levitz reserves the right to assign this
agreement in full to the USA Group or any of its affiliates or
subsidiaries.
C. The term of this Agreement shall be for 24 months, beginning July 1, 1996,
and ending June 30, 1998. Neither party shall have any right to terminate
this agreement prior to the end of the term of this agreement. The payment
schedule set forth in this agreement is solely for the fiscal convenience
of the institution; therefore, in the event that the parties mutually
agree in writing to an earlier termination date, the institution shall
pay Noel-Levitz for the value of the products delivered and services
rendered through such early termination date.
D. The Institution has the option to continue Noel-Levitz services after
this agreement is completed. The price of any additional services will
be negotiated at that time.
E. Noel-Levitz warrants that if the System fails to substantially conform
to the specifications in the System documentation and if the
non-conformity is reported in writing by the
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Institution to Noel-Levitz within 90 days from the later of the date
that the System license is purchased or the date the installation is
completed, then Noel-Levitz will, at its option, either remedy the
non-conformity or offer to refund the license fee to the Institution
upon return of all copies of the System software and System
documentation to Noel-Levitz. In the event of a refund the System
license shall terminate. The foregoing warranty shall apply provided
that: (a) the System is not modified, changed, or altered by anyone
other than Noel-Levitz, unless authorized by Noel-Levitz in writing;
(b) the Institution's computer equipment is in good operating order and
is installed in a compatible environment; (c) the non-conformity is not
caused by a third party or by the Institution, its agent, employees or
contractors; and (d) the data and/or database used with the System are
not modified, changed or altered by any means other than through the
normal operation of the System.
F. Additional services (the "Additional Services") related to the Services
that are not set forth in this Agreement may be purchased from
Noel-Levitz from time to time by the placement of a written work order
(a "Work Order"). No obligation for services or costs shall be incurred
by either party unless and until a Work Order has been executed by both
parties. Each Work Order shall contain, among other provisions, a
description of the services to be performed, the delivery or
performance schedule and an estimate of the costs to be charged. The
Additional Services provided pursuant to any Work Order shall be
subject to the terms and conditions contained in this Agreement.
II. PAYMENT
A. Payment for the services and software outlined in I,A of this Agreement
will total $220,300, two hundred twenty thousand three hundred dollars,
plus actual travel, lodging, and subsistence.
- July 15, 1996 $83,650
- August 15, 1996 $8,300
- September 1, 1996 $8,300
- October 15, 1996 $8,300
- November 15, 1996 $8,300
- December 15, 1996 $8,300
- January 15, 1997 $8,300
- February 15, 1997 $8,300
- March 15, 1997 $8,300
- April 15, 1997 $8,300
- May 15, 1997 $8,300
- June 15, 1997 $8,300
- July 15, 1997 $40,000
- August 15, 1997 $5,350
The price per element is:
Ongoing Enrollment Consulting $5,500/month
Effective Admissions Counselor Training Program $4,290
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EMASPLUS $42,260
EMASPLUS Annual Maintenance Year 1 $5,350
EMASPLUS Annual Maintenance Year 2 $5,350
ForecastPLUS $37,050
Financial Aid Leverage Analysis Year 1 $41,280
Financial Aid Leverage Analysis Year 2 $18,720
In the event that the Institution provides written notification to
Noel-Levitz of its desire not to conduct the Financial Aid Leverage
Analysis as provided for in I(A)(7), then Noel-Levitz will be released
from its obligation to perform the Financial Aid Leverage Analysis,
except for one (single year) Return Analysis. Payment for the services
and software will then total $184,300, one hundred eighty four thousand
three hundred dollars, plus actual travel, lodging, subsistence.
- July 15, 1996 $75,650
- August 15, 1996 $10,300
- September 1, 1996 $10,300
- October 15, 1996 $8,300
- November 15, 1996 $8,300
- December 15, 1996 $8,300
- January 15, 1997 $8,300
- February 15, 1997 $8,300
- March 15, 1997 $8,300
- April 15, 1997 $8,300
- May 15, 1997 $8,300
- June 15, 1997 $6,300
- July 15, 1997 $10,000
- August 15, 1997 $5,350
The price per element is:
Ongoing Enrollment Consulting $5,500/month
Effective Admissions Counselor Training Program $4,290
EMASPLUS $42,260
EMASPLUS Annual Maintenance Year 1 $5,350
EMASPLUS Annual Maintenance Year 2 $5,350
ForecastPLUS $37,050
Return Analysis $24,000
B. Payment of expenses will be invoiced monthly with appropriate receipts
or invoices for travel, lodging, subsistence, and transportation, express
mail charges, and the cost of presentation visuals.
C. All fees will be payable in U.S. dollars and do not include any taxes. If
Noel-Levitz is required to pay sales or other taxes based upon the license
granted, the use of the Noel-Levitz product(s), or services rendered, the
Institution will reimburse Noel-Levitz the
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amount of taxes paid by Noel-Levitz. If the Institution does not remit
payment to Noel-Levitz within 30 days after receipt of an invoice, the
Institution will pay Noel-Levitz a late charge of the lesser of 1.5%
per month or the maximum amount permitted by applicable state law for
unpaid amounts due Noel-Levitz. Collection costs incurred by Noel-Levitz,
including reasonable attorney fees, will be reimbursed by the
Institution.
D. Invoices shall be sent to the following address:
Ms. Sandra Weber
Director of Alumni and Career Services
and Enrollment Management
California Culinary Academy
625 Polk Street
San Francisco, CA 94102
E. Checks should be made payable to Noel-Levitz and mailed to:
Noel-Levitz Centers, Inc.
2101 ACT Circle
Iowa City, IA 52245
III. DISCLAIMER OF WARRANTIES; LIMITATION ON LIABILITY
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, NOEL-LEVITZ MAKES NO WARRANTY,
REPRESENTATION, PROMISE OR GUARANTEE, EITHER EXPRESS OR IMPLIED, WITH
RESPECT TO THE SOFTWARE OR SERVICES, INCLUDING, WITHOUT LIMITATION, THE
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOEL-LEVITZ'S AGGREGATE LIABILITY, AND THE INSTITUTION'S SOLE AND
EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF
ACTION, ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO THE
TOTAL OF ALL PAYMENTS MADE BY OR FOR THE INSTITUTION TO NOEL-LEVITZ FOR
THE SOFTWARE OR SERVICES INVOLVED IN ANY SUCH CLAIM. NOEL-LEVITZ SHALL
NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES OR COSTS RELATING TO ENROLLMENT SUCCESS, LOSS OF PROFITS OR
REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR LOSS OF THE USE OF
ANY DATA) ARISING FROM THE SOFTWARE OR SERVICES PROVIDED BY NOEL-LEVITZ
HEREUNDER, EVEN IF NOEL-LEVITZ HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO THE
INSTITUTION.
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IV. CONFIDENTIALITY
During the course of performance of this Agreement, the Institution may
be given access to information that relates to Noel-Levitz's past,
present and future research, development, business activities,
products, services or technical knowledge. All of such information
shall be deemed to be "Confidential Information" unless otherwise
indicated by Noel-Levitz in writing at or after the time of disclosure.
The Confidential Information may be used by the Institution only in
connection with its internal business. Access to the Confidential
Information shall be restricted to those of Institution's personnel,
representatives and contractors on a need to know basis solely in
connection with Institution's internal business. The Institution
further agrees that it will (i) take all necessary steps to inform any
of its personnel, representatives or contractors to whom Confidential
Information may be disclosed of the Institution's obligations hereunder
and (ii) cause said personnel, representatives and contractors to agree
to be bound by the terms of this Agreement by executing a
confidentiality agreement containing the same restrictions contained
herein or some other method acceptable to Noel-Levitz. Institution
agrees to protect the confidentiality of the Confidential Information
in the same manner that it protects the confidentiality of its own
proprietary and confidential information of like kind. The Institution
agrees to notify Noel-Levitz of any unauthorized use or disclosure of
Confidential Information and to take all actions reasonably necessary
to prevent further unauthorized use or disclosure thereof. The terms of
this Section shall survive the expiration or termination of this
Agreement.
V. MISCELLANEOUS
This Agreement constitutes the entire agreement between
Noel-Levitz and the Institution relating to the subject matter contained
herein. There are no understandings, representations or warranties,
express or implied, that are not specified herein. No change will be
made in any of the terms of this Agreement, nor any provision waived,
without the prior written consent of Noel-Levitz and the Institution.
Noel-Levitz will not have any liability for the failure to carry out its
obligations in the manner specified herein due to any circumstances
beyond its reasonable control. All notices and consents required or
permitted herein will be made in writing and will be mailed by certified
mail, return receipt requested, to the addresses specified herein or
such other addresses designated by Noel-Levitz or the Institution. If
any provision of this Agreement is declared invalid or unenforceable,
the remaining provisions will remain in force. This Agreement will be
construed in accordance with the laws of the State of Indiana, without
giving effect to conflict of law provisions. This Agreement will
constitute a license of application software and an agreement to provide
services and will not be construed as a contract for the sale of goods
subject to the provisions of the Uniform Commercial Code. Until accepted
by Noel-Levitz, this Agreement will be considered an offer by the
Institution.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
written below.
California Culinary Academy
San Francisco, California
Illegible Sandra Weber
By: __________________________ By: ______________________________
CFO Dir., Enrollment Management
Title: _______________________ Title: ___________________________
7/18/96 7-18-96
Date: ________________ Date: ________________
Noel-Levitz Centers, Inc.
Iowa City, Iowa
By: __________________________
Title: _______________________
Date: ________________
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EXHIBIT A
EMASPLUS LICENSE AGREEMENT
CALIFORNIA CULINARY ACADEMY
PLEASE READ CAREFULLY: THIS LICENSE AGREEMENT (THE "AGREEMENT") IS MADE
EFFECTIVE THIS 1ST DAY OF JULY, 1996 BETWEEN CALIFORNIA CULINARY ACADEMY, A
CALIFORNIA CORPORATION (THE "INSTITUTION"), WITH OFFICES AT 625 POLK STREET,
SAN FRANCISCO, CA 94102 AND NOEL-LEVITZ CENTERS, INC., D/B/A USA GROUP
NOEL-LEVITZ, AN IOWA CORPORATION, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT
2101 ACT CIRCLE, IOWA CITY, IA 52245 ("NOEL-LEVITZ"). IF THE INSTITUTION DOES
NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE INSTITUTION
SHOULD NOT SIGN THIS AGREEMENT AND THE INSTITUTION SHOULD RETURN ALL PROGRAM
DISKETTES AND DOCUMENTATION IMMEDIATELY TO NOEL LEVITZ.
DEFINITIONS
"DOCUMENTATION" means the printed materials provided by Noel-Levitz with the
Software.
"LICENSE" means the license purchased and granted pursuant to this Agreement.
"LICENSED NETWORK SERVER" means the Institution's computer network server on
which the Software is licensed to be installed.
"SOFTWARE" collectively means the EMASPLUS software and any other software
the Institution has received from Noel-Levitz with this License, except Third
Party Software products.
"THIRD-PARTY SOFTWARE" means software products owned by third parties
(including Microsoft FoxPro-TM- and Symantec THE NORTON pcANYWHERE-TM-) that
are required to operate the Software.
LICENSE AND PROTECTION
1. LICENSE GRANT: Noel-Levitz grants to the Institution, subject to the
following terms and conditions, a non-exclusive, non-transferable right to
use the Software and Documentation solely for the Institution's
internal business operations on as many as 10 computers or workstations
used concurrently with a single database on the Licensed Network Server.
The Software and Documentation are for internal use only and may not be
used or distributed outside of the Institution. Noel-Levitz reserves all
rights not expressly granted herein to the Institution. Payment for the
Software shall be made in accordance with the payment schedule
established in the Memorandum of Agreement between Noel-Levitz and the
Institution. Additional concurrent users may be licensed by the
Institution at Noel-Levitz's then current price in effect.
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2. THIRD-PARTY SOFTWARE: Certain Third Party Software products are
required to operate the Software. Although Noel-Levitz does not sell the
Third Party Software, it will coordinate on behalf of this Institution
the purchase of FoxPro and pcANYWHERE and the shipment of such products
directly to the Institution. The Institution is responsible for
registering the license for Third Party Software products in its own
name and for acquiring and maintaining current versions required to
operate the Software. Noel-Levitz will notify the Institution of changes
in versions of Third Party Software products required to run the
Software.
3. PROTECTION OF SOFTWARE: The Software source code represents and
embodies trade secrets of Noel-Levitz. Such source code and embodied
trade secrets are not licensed to the Institution and any modification,
addition, or deletion is strictly prohibited. The Institution agrees to
treat the Software and Documentation as confidential and to take all
reasonable steps to protect the Software and Documentation from
unauthorized copy or use. The Institution agrees not to disassemble,
decompile, or otherwise reverse engineer the Software in order to
discover the source code and/or the trade secrets contained in the
source code. The Institution agrees to take appropriate action by
instruction or agreement with its employees and independent contractors
who are permitted access to any of the materials related to this
Agreement to comply with the Institution's obligations hereunder. This
paragraph 3 shall survive the expiration or termination of this
Agreement.
4. COPIES AND ADAPTATIONS: The Institution may make or authorize the
making of copies or adaptations of the Software, provided that any
new copy or adaptation created is for archival purposes only, and the
Institution does not receive any payment, commercial benefit, or other
consideration for the reproduction. All proprietary rights and notices
must be faithfully reproduced and included on all copies and
adaptations. The Documentation may be duplicated for internal use only.
5. OWNERSHIP: Ownership of, and title to, the Software and
Documentation (including any adaptations, copies or derivative works)
shall be retained and held by Noel-Levitz.
6. RESTRICTIONS: Except as expressly authorized in this Agreement,
the Institution agrees not to sell, rent, lease, sub-license,
distribute, transfer, copy, reproduce, display, modify, time-share, or
act as a service bureau with respect to the Software or Documentation.
7. DATA INTEGRATION: Using the Software's standard import and export
files, the Institution can move data to and from the EMASPLUS database.
It is the responsibility of the Institution to format and prepare the
date properly to use the import and export files and achieve data
integration.
8. INSTITUTION'S SOFTWARE PROGRAMS: The development, maintenance and
accuracy of the Institution's custom software programs and modules that
interface with the Software
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(for example, calling specific EMASPLUS modules) or modify the EMASPLUS
database are the sole and entire responsibility of the Institution.
9. TERM: This License is effective from the date the Institution
signs this Agreement and will remain in force until terminated. The
Institution may terminate this License at any time by destroying the
Documentation and the Software together with all copies and adaptations
thereof. This License shall automatically terminate if the Institution
breaches any of the material terms or conditions of this Agreement. The
Institution agrees to destroy the original and all adaptations or copies
of the Software and Documentation, or to return them to Noel-Levitz
promptly upon termination of this License.
10. INDEMNIFICATION: Noel-Levitz does indemnify and shall hold
harmless the Institution against any claims by any third parties that
the Software or Documentation infringes any United States copyright,
patent or trademark. If the Software or Documentation becomes, or in
Noel-Levitz's reasonable opinion is likely to become, the subject of any
such claim which impairs the Institution's right to use the Software or
Documentation, Noel-Levitz shall, at its option and at no additional
cost to the Institution, (i) replace or modify the Software and/or
Documentation with functionally equivalent and conforming Software
and/or Documentation, (ii) obtain for the Institution the right to
continue using the Software and/or Documentation, or (iii) in exchange
for termination of this Agreement, refund the license fees paid by the
Institution pursuant to this Agreement prorated over a four-year period
from the date of delivery. Noel-Levitz's obligations hereunder are
subject to the following: (1) the Institution shall promptly notify
Noel-Levitz in writing of any such claim; (2) Noel-Levitz shall have
sole control of the defense or settlement of any such claim; and (3) the
Institution shall cooperate with Noel-Levitz, at Noel-Levitz's expense,
in a reasonable way to facilitate the settlement or defense of any such
claim. Noel-Levitz shall not be responsible for any cost, expense, or
compromise incurred or made by the Institution in connection with the
defense of any such claim without Noel-Levitz's prior written consent.
Noel-Levitz's obligations under this section shall not apply to
claims of infringement based upon (i) use of other than the latest
unmodified release of the Software made available by Noel-Levitz to the
Institution if such infringement would have been avoided by the use of
such release of the Software, (ii) combination, operation or use of the
Software with any non-Noel-Levitz programs or data if such infringement
would not have occurred without such combination, operation or use, or
(iii) use of the Software after receiving written notice from Noel-Levitz
that the Software infringes a United States copyright, patent or
trademark of a third party. Noel-Levitz's obligations under this section
constitute the Institution's sole and exclusive remedy for a claim, suit
or proceeding for an intellectual property infringement.
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LIMITED WARRANTY AND LIMITED LIABILITY
11. COMPATIBILITY: This software is only compatible with the computers
and operating systems set forth on the EMASPLUS technical specifications
sheet; the Software is not warranted for non-compatible systems.
12. MAGNETIC MEDIA AND DOCUMENTATION: Noel-Levitz warrants that if the
magnetic media on which the Software is distributed or Documentation are
in a damaged or physically defective condition at the time that the
License is purchased, and if they are returned to Noel-Levitz within 90
days of purchase, Noel-Levitz will provide the Institution with
replacements at no charge. Any unauthorized modification or misuse of
the Software will void the foregoing warranty.
13. SOFTWARE: Noel-Levitz warrants that if the Software fails to
substantially conform to the specifications in the Documentation and if
the non-conformity is reported in writing by the Institution to
Noel-Levitz within 90 days from the later of the date that the License
is purchased or the date the installation is completed, then Noel-Levitz
will, at its option, either remedy the non-conformity or offer to refund
the license fee to the Institution upon return of all copies of the
Software and Documentation to Noel-Levitz. In the event of a refund this
License shall terminate. The foregoing warranty shall apply provided
that: (a) the Software is not modified, changed, or altered by anyone
other than Noel-Levitz, unless authorized by Noel-Levitz in writing; (b)
the Institution's computer equipment is in good operating order and is
installed in a compatible environment; (c) the non-conformity is not
caused by a third party or by the Institution, its agent, employees or
contractors; and (d) the data and/or database used with the Software are
not modified, changed or altered by any means other than through the
normal operation of the Software.
14. DISCLAIMER OF WARRANTIES: EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
NOEL-LEVITZ MAKES NO WARRANTY, REPRESENTATION, PROMISE OR GUARANTEE,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE
DOCUMENTATION OR ANY RELATED TECHNICAL SUPPORT, INCLUDING, WITHOUT
LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE INSTITUTION.
15. LIMITATION OF LIABILITY: EXCEPT AS SET FORTH IN SECTION 10 HEREOF,
NOEL-LEVITZ'S AGGREGATE LIABILITY, AND THE INSTITUTION'S SOLE AND
EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF
ACTION, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR
DOCUMENTATION IS LIMITED TO THE TOTAL OF ALL PAYMENTS MADE BY OR FOR THE
INSTITUTION TO NOEL-LEVITZ FOR THE PARTICULAR SOFTWARE, DOCUMENTATION OR
SERVICES INVOLVED IN ANY CLAIM MADE BY THE INSTITUTION. NOEL-
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LEVITZ SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES (INCLUDING,
WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO ENROLLMENT SUCCESS,
LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL,
LOSS OF THE USE OF THE SOFTWARE, OR LOSS OF ANY DATA) ARISING OUT OF
THE USE OF OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR RELATED
TECHNICAL SUPPORT, EVEN IF NOEL-LEVITZ HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO THE INSTITUTION.
GENERAL CONDITIONS
16. GOVERNING LAW: This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Indiana
and of the United States of America (without regard to conflict of
law principles).
17. ENTIRE AGREEMENT: This Agreement sets forth the entire
understanding and agreement between the Institution and Noel-Levitz
relating to the subject matter contained herein and may be amended only
in writing signed by both parties. No vendor, distributor, dealer,
retailer, sales person, or other person is authorized to modify this
Agreement or to make any warranty, representation, or promise different
from, or in addition to, the representations or promises contained
in this Agreement.
18. WAIVER: No waiver of any right under this Agreement shall be
effective unless in writing, signed by a duly authorized representative
of Noel-Levitz. No waiver of any past or present right arising from any
breach or failure to perform shall be deemed to be a waiver of any
future right arising under this Agreement.
19. SEVERABILITY: If any provision in this Agreement is invalid or
unenforceable, that provision shall be construed, limited, modified, or,
if necessary, severed to the extent necessary, to eliminate its
invalidity or unenforceability, and the other provisions of this
Agreement shall remain unaffected.
20. EXPORT: The Institution agrees to comply with all export and
re-export restriction and regulations ("Export Restrictions") imposed by
the government of the United States or the country to which the
Software is shipped to the Institution. The Institution will not commit
any act or omission which will result in a breach of any such Export
Restrictions; the Institution agrees that it will comply in all respects
with any governmental laws, orders or other restrictions on the export
of the Software (and related information and documentation) which may be
imposed from time to time by the governments of the United States and
Canada or the country to which the Software
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is shipped by Noel-Levitz. This Section shall survive the
expiration or termination of this Agreement.
21. U.S. GOVERNMENT RESTRICTED RIGHTS: Use, duplication, or disclosure
by the United States Government is subject to restrictions as set forth
in FAR 52.227-14 (June 1987) Alternate III(g)(3) (June 1987), FAR
52.227-19 (June 1987), or DFARS 52.227-7013 (c)(1)(ii) (June 1988), as
applicable. Contractor/Manufacturer is Noel-Levitz Centers, Inc., 2101
ACT Circle, Iowa City, Iowa 52245.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
written below.
California Culinary Academy Noel-Levitz Centers, Inc.
By: _______________________ By: _____________________
Name: _____________________ Name: Robert C. Dickeson, Ph.D.
Title: ____________________ Title: President & CEO
Page 6
<PAGE>
EXHIBIT B
EMASPLUS SOFTWARE MAINTENANCE AGREEMENT
CALIFORNIA CULINARY ACADEMY
This Software Maintenance Agreement (the "Agreement") is made effective
this _______ day of May, 1996 between the California Culinary Academy
(the "Institution") with offices at 625 Polk Street, San Francisco, CA
94102 and Noel-Levitz Centers, Inc., d/b/a USA Group Noel-Levitz
("Noel-Levitz") having its principal place of business at 2101 ACT
Circle, Iowa City, IA 52245.
WHEREAS, Noel-Levitz and Institution have entered into a certain
license agreement dated May __, 1996 (the "License Agreement") pursuant
to which Noel-Levitz agreed to license to Institution its EMASPLUS
software (the "Product"); and
WHEREAS, Noel-Levitz desires to maintain, and Institution desires to
obtain the maintenance of, the Product on the terms and conditions
hereinafter provided:
1. MAINTENANCE SERVICES. The maintenance services to be provided
hereunder (the "Maintenance Services") shall consist of: (a) reasonable
efforts to correct defects, provided that such defects are not the
result of any change made to the Product (other than improvements
provided by Noel-Levitz under this Agreement); (b) reasonable telephone
support through Noel-Levitz's telephone support line during Noel-Levitz's
then current published standard support line hours, which at a minimum
will be Monday through Friday (excluding holidays) from 8:00 a.m. to
5:00 p.m. (CT), to Institution personnel that are fully trained by
Noel-Levitz in the use of the Product; (c) distribution by Noel-Levitz
to the Institution at no charge of regular enhancements to the Product
which may be developed from time to time by Noel-Levitz (provided that
the Institution has purchased continuous support of the Product from
Noel-Levitz since installation of the Product); and (d) registration for
one person at one Noel-Levitz software related workshop for each year
that this Agreement remains in effect.
2. LIMITATIONS. Noel-Levitz's obligations under this Agreement will be
limited to the then current unmodified release and the immediately
preceding unmodified release of the Product. Noel-Levitz provides no
guarantees or assurance that any new release, version, modification or
enhancement to the Product will be compatible with (i) any Product that
has been modified or customized, or (ii) any Product data and/or
database that has modified by any means other than through the normal
operation of the Product. All improvements, meaning Maintenance
Services, enhancements and new releases, will be part of the Product and
subject to all terms and conditions of the License Agreement and this
Agreement.
Page 1
<PAGE>
3. APPLICABILITY OF LICENSE AGREEMENT. This Agreement and all software,
documentation, and media provided under it is subject to all the terms
and conditions of the License Agreement, including, but not limited to,
the Disclaimer of Warranties and Limitation of Liability.
4. MAINTENANCE FEES. Noel-Levitz shall provide the Maintenance Services
to the Institution for an annual fee equal to 10% of the then current
list price for the Product (based on the number of concurrent users that
the Institution is permitted pursuant to its license to use the
Product), so long as the Institution continues maintenance uninterrupted
and so long as Noel-Levitz operates a maintenance program on the
Product. The initial maintenance fee is due upon delivery of the Product
to the Institution. Thereafter, the maintenance fee is payable annually
on the anniversary date of the training provided by Noel-Levitz to the
Institution (the "Anniversary Date"). Unless the Institution notifies
Noel-Levitz in writing that this Agreement shall terminate, for whatever
reason, on the Anniversary Date, this Agreement shall be extended and
renewed on each Anniversary Date for an additional one year period.
Noel-Levitz may cancel the automatic renewal terms by notifying the
Institution that Noel-Levitz does not want to renew this Agreement. If
the Institution does not remit payment to Noel-Levitz within 30 days
after receipt of an invoice, the Institution will pay Noel-Levitz a late
charge of the lasser of 1.5% a month or the maximum amount permitted by
applicable state law for unpaid amounts due Noel-Levitz.
5. ADDITIONAL COSTS. If Noel-Levitz can reasonably demonstrate that a
malfunction is caused by the failure of the Institution's operating
environment or by the improper use of the Product by the Institution or
its contractors and the Institution requests assistance from
Noel-Levitz, then the Institution shall pay Noel-Levitz an additional
amount for its work performed in connection therewith on a per-hour
basis, at Noel-Levitz's standard hourly rates then in effect.
Institution also will reimburse Noel-Levitz for all reasonable travel
and living expenses incurred by Noel-Levitz personnel who provide
requested services.
6. ADDITIONAL SERVICES. At the request of the Institution, and with the
consent of Noel-Levitz, Noel-Levitz also may provide technical,
operational, implementation, migration, or other assistance or
consulting to Institution in excess of the services included as the
Maintenance Services in Section 1 herein at Noel-Levitz's standard
hourly rates then in effect.
7. INSTITUTION REQUIREMENTS. Noel-Levitz's obligation to provide
Maintenance Services hereunder is contingent upon the Institution
providing Noel-Levitz with access to necessary Institution systems
(including the Product as installed on the Institution's computer
network system) by (i) providing a modem line and modem which meet
Noel-Levitz's technical specifications, and (ii) installing Symantec's
THE NORTON pcANYWHERE-TM- software product to operate unattended in host
auto answer mode.
Page 2
<PAGE>
8. CONDITIONS. The termination of the License Agreement, or of the
license granted therein, shall automatically result in the termination
of this Agreement.
9. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. NOEL-LEVITZ MAKES
NO WARRANTY WITH RESPECT TO THIS AGREEMENT, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, OF ANY KIND WHATSOEVER, AND ALL SUCH WARRANTIES ARE
HEREBY EXCLUDED BY NOEL-LEVITZ AND WAIVED BY THE INSTITUTION.
NOEL-LEVITZ SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY,
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES OR COSTS RELATING TO ENROLLMENT SUCCESS, LOSS OF PROFITS OR
REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF THE USE OF THE
PRODUCT, OR LOSS OF ANY DATA) EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT NOEL-LEVITZ'S MAXIMUM
LIABILITY TO THE INSTITUTION HEREUNDER SHALL BE LIMITED TO THE AMOUNTS
ACTUALLY PAID BY THE INSTITUTION TO NOEL-LEVITZ HEREUNDER DURING THE
IMMEDIATELY PRECEDING TWELVE MONTHS.
10. TERMINATION. Either party will have the right to terminate this
Agreement if the other party breaches or fails to perform any material
term or condition of this Agreement. Either party, if it has a right of
termination as provided above, may terminate this Agreement at any time
while the event or condition giving rise to that right of termination
exists, by giving the other written notice of that event or condition
and describing that event or condition in reasonable detail. Upon
receipt of that notice, the other party will have 30 days to correct or
cure that event or condition to the reasonable satisfaction of the party
desiring termination. If the event or condition giving rise to the
termination is not so corrected or cured within that period, this
Agreement will terminate as of the end of the 30-day period
automatically, without further act by any party.
11. NOTICES. All notices and other communications required or permitted
under this Agreement will be in writing and will be deemed given when
delivered personally, three days following being sent by United States
registered or certified mail, return receipt requested, or one business
day following being sent by overnight courier to the address stated
herein for Noel-Levitz, to the address stated herein for the
Institution, or such other address as the parties hereto designate from
time to time.
12. CHOICE OF LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the laws of the State of Indiana (without
giving effect to conflict of law provisions). If any provision of this
Agreement is found invalid or unenforceable, it will be
Page 3
<PAGE>
enforced to the maximum extent permissible, and the legality and
enforceability of the other provisions of this Agreement will not be
affected.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
written below.
California Culinary Academy Noel-Levitz Centers, Inc.
By:____________________________ By:_____________________________
Name:__________________________ Name: Robert C. Dickeson, Ph.D.
Title:_________________________ Title: President & CEO
Date:__________________________ Date:___________________________
<PAGE>
EXHIBIT B
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT ("Agreement") is made this _____ day of
____________, 1996 by California Culniary Academy (the "Recipient") and USA
Group Noel-Levitz, Inc., an Indiana corporation (the "Company").
RECITALS
A. The Company has developed a multi-institutional delivery program (the
"Delivery Program") in connection with the Company's customized enrollment
prediction system ForecastPlus-TM- (the "Product").
B. Recipient desires to participate in the Delivery Program, and the Company
desires to have Recipient participate in the Delivery Program.
C. In the course of the Delivery Program, other educational institutions that
are participating in the Delivery Program (a "Participant") may disclose to
Recipient confidential and proprietary information of that Participant.
D. In connection with, and as a condition to becoming a participant
in the Delivery Program, the Company requires that Recipient
agree to the provisions set forth below.
E. Recipient is willing to enter into this Agreement in order for it to
participate in the Delivery Program.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained in this Agreement and of other good and valuable
consideration, the receipt of which is hereby acknowledged, the Recipient
agrees as follows:
1. DEFINITION.
(a) "Participant Confidential Information" shall mean all institution
specific data and/or information disclosed by a Participant or the
Company to Recipient during and/or in connection with the Delivery
Program.
2. NON-USE AND NON-DISCLOSURE. Recipient agrees that it will maintain in
confidence and will not communicate, divulge or use any Participant
Confidential Information which is communicated and/or transmitted
to it by the Company or a Participant, subject to the exceptions of
Section 3 below. As part of the confidential treatment required
hereunder, Recipient agrees that no copies of Participant
Confidential Information shall be made by Recipient except as
authorized in writing by the Participant. Nothing in this paragraph
shall prohibit Recipient from using Participant Confidential
Information for the sole purpose of participating in the Delivery
Program.
Recipient further agrees that it will (i) take all necessary steps
to inform any of its employees, representatives or agents to whom
Participant Confidential Information may be disclosed of
Recipient's obligations hereunder and (ii) cause said employees,
representatives and agents to agree to be bound by the terms of
this Agreement, either by signing a blank copy of this Agreement or
some other method acceptable to the Company. Recipient shall
indemnify and hold the Company harmless from all costs, expenses
(including attorneys' fees, whether or
<PAGE>
not suit be brought), damages, losses or claims arising from or
relating to any breach or default by any employee, representatives
or agent of Recipient of any provision of this Agreement.
Recipient agrees to notify the Company and the Participant, as
applicable, of any unauthorized use or disclosure of Participant
Confidential Information and to take all actions reasonably
necessary to prevent further authorized use or disclosure thereof.
The confidentiality obligations set forth in this Agreement shall
continue to apply with respect to each item of Participant
Confidential Information until such item ceases (other than due to
actions or failures of Recipient) to be secret or confidential.
3. EXCEPTIONS. The restrictions of Section 2 shall not apply to:
(a) Information which is generally available to the public or to
the relevant industry prior to receipt from the Company or
Participant, as applicable, or which later becomes such, other than
due to action or failure by Recipient, its agents, representatives
or employees;
(b) Information which, prior to disclosure hereunder, is already in
the rightful possession of Recipient; or
(c) Information which Recipient receives from a third party not
known by Recipient, acting reasonably, to be in violation of a
confidential relationship with the Company or Participant, as
applicable.
4. SEVERABILITY. Should any part of this Agreement be declared
invalid by a court of law, such decision shall not affect the
validity of any remaining portion, which shall remain in full force
and effect as if the invalid portion was never a part of this
Agreement.
5. NO ASSIGNMENT. This Agreement shall be binding upon Recipient
and its heirs, successors and assigns and inure to the benefit of
the Company or Participant, as applicable, and its successors and
assigns, but Recipient shall not, directly or indirectly, assign or
purport to assign this Agreement or any of its rights or
obligations hereunder in full or in part to any third party without
the prior written consent of the Company.
6. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana without giving
effect to conflict of law provisions.
7. INTEGRATION. This Agreement constitutes the entire agreement and
understanding relating to the subject matter hereof.
8. REMEDIES. Company shall be entitled to obtain injunctive or
other equitable relief, in addition to other available remedies, in
the event of a breach or threatened breach of this Agreement by
Recipient.
9. AMENDMENTS; WAIVERS. This Agreement may be amended or modified,
and any of the terms or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case
of a waiver, by the party waiving compliance. Any waiver or
modification, express or implied, by any party hereto of any term
or condition in this Agreement will operate as
<PAGE>
such only in the specific instance and will not be construed as
a waiver or modification of any condition or term generally or in
any other instance.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMPANY: RECIPIENT:
USA Group Noel-Levitz, Inc. California Culinary Academy.
By:________________________ By:_________________________
Name: Name:
___________________________ ____________________________
Title: Title:
___________________________ ____________________________
<PAGE>
EXHIBIT C
EMASPLUS TECHNICAL SPECIFICATIONS
EMASPLUS runs in a standard MS-DOS environment. Any network
operating system that guarantees 100% DOS compatibility, such as
Novell Netware, will be able to run it. Although EMASPLUS was
developed and tested in Novell 3.11 and Novell 4.1 environments, a
conscious effort was made not to use any Novell-specific features
that would limit cross-platform compatibility.
RECOMMENDED MINIMUM REQUIREMENTS
These minimum requirements are intended to illustrate the existing
equipment that could be used to operate EMASPLUS. Due to rapid
advances in hardware power and lowering costs, we recommend
substantially more powerful equipment for any new purchases.
Because of the substantial differences in local requirements and
options available, USAGroup Noel-Levitz cannot be responsible for
configuring your network. Your data center support staff or other
local support resources should be able to provide guidance and
assistance in configuring an appropriate network and workstations.
HARDWARE
FILE SERVER
Uninterruptible power supply providing 10-15 minutes reserve power
is highly recommended. DOS-compatible network software is required.
We also recommend that equipment and procedures be in place for
regular system back-up.
Hard drive requirements are highly dependent on your usage of
EMASPLUS and other intended uses of the network. 35 Megabytes of
disk space are required for the software and support tables.
Typical users reserve approximately 600 Megabytes of disk space for
every 50,000 records. This can vary substantially.
RECOMMENDED WORKSTATIONS
For new purchases and workstations used for batch processes such as
reporting, and importing and exporting, the following workstation
is recommended:
Pentium processor, VGA color monitor w/100MB available hard
disk space*, 12MB RAM, and DOS 6.0 or higher.
* EMASPLUS TAKES SUBSTANTIAL ADVANTAGE OF PERFORMANCE GAINED BY
TEMPORARY WORK FILES OF 20 TO 60 MB LOCAL AT THE WORKSTATION.
DISKLESS WORKSTATIONS MAY BE USED BUT ADEQUATE INDIVIDUAL WORKSPACE
WILL BE REQUIRED ON A NETWORK SERVER. EXPERIENCE INDICATES THAT
DISKLESS WORKSTATIONS WILL EXPERIENCE DRAMATICALLY SLOWER
PERFORMANCE DUE TO EXTRA NETWORK TRAFFIC.
<PAGE>
MINIMUM WORKSTATIONS
Existing equipment can be used for telecounseling if it meets the
following minimium requirements:
486 CPU, VGA color monitor w/100MB available hard disk space*,
8MB RAM, and DOS 6.0 or higher.
PERFORMANCE
Certain processes require adequate system performance to be
time-efficient. For example, import speed is highly dependent upon
your hardware and network configuration. For example, clients using
various hardware and network configurations report import speeds
varying from 4 to 12 records per minute. This speed depends on the
combined performance of your server, network, and individual work
stations.
MODEM
A 28.8 Hayes-compatible modem on one workstation and a dedicated
analog telephone line are required for technical support.
PRINTERS
EMASPLUS supports printing with HP LaserJet III and higher printers.
*EMASPLUS TAKES SUBSTANTIAL ADVANTAGE OF PERFORMANCE GAINED BY
TEMPORARY WORK FILES OF 20 TO 60 MB LOCAL AT THE WORKSTATION.
DISKLESS WORKSTATIONS MAY BE USED BUT ADEQUATE INDIVIDUAL WORKSPACE
WILL BE REQUIRED ON A NETWORK SERVER. EXPERIENCE INDICATES THAT
DISKLESS WORKSTATIONS WILL EXPERIENCE DRAMATICALLY SLOWER
PERFORMANCE DUE TO EXTRA NETWORK TRAFFIC.
<PAGE>
Exhibit 11
CALIFORNIA CULINARY ACADEMY, INC.
STATEMENT RE: EARNINGS PER SHARE
<TABLE>
<CAPTION>
Quarter Ended September 30
--------------------------
1996 1995
---- ----
Primary Fully Diluted Primary Fully Diluted
----------- ----------------- ----------- ---------------
<S> <C> <C> <C> <C>
Net earnings (loss) $46,000 $46,000 $(424,000) $(424,000)
----------- ----------------- ----------- ---------------
Weighted average common shares outstanding:
Common shares 3,228,732 3,228,732 3,308,805 3,308,805
Common equivalent shares:
Stock options and warrants
----------- ----------------- ----------- ---------------
Weighted average common and common
equivalent shares outstanding 3,228,732 3,228,732 3,308,805 3,308,805
----------- ----------------- ----------- ---------------
----------- ----------------- ----------- ---------------
Earnings (loss) per share $0.01 $0.01 $(0.13) $(0.13)
----------- ----------------- ----------- ---------------
----------- ----------------- ----------- ---------------
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE
SHEET AND STATEMENTS OF OPERATIONS FOR THE QUARTER ENDED SEPTEMBER 30, 1996 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000858915
<NAME> CALIFORNIA CULINARY ACADEMY, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 3383
<SECURITIES> 0
<RECEIVABLES> 2713
<ALLOWANCES> 280
<INVENTORY> 214
<CURRENT-ASSETS> 6963
<PP&E> 8810
<DEPRECIATION> 4129
<TOTAL-ASSETS> 12733
<CURRENT-LIABILITIES> 5976
<BONDS> 0
0
988
<COMMON> 9112
<OTHER-SE> (4051)
<TOTAL-LIABILITY-AND-EQUITY> 12733
<SALES> 535
<TOTAL-REVENUES> 3529
<CGS> 415
<TOTAL-COSTS> 702
<OTHER-EXPENSES> 2744
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6
<INCOME-PRETAX> 77
<INCOME-TAX> 31
<INCOME-CONTINUING> 46
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 46
<EPS-PRIMARY> $0.01
<EPS-DILUTED> $0.01
</TABLE>
