<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________
FORM 10-K
(MARK ONE)
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _________ TO _________
COMMISSION FILE NUMBER
1-9812
TENERA, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 94-3213541
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
One Market, Spear Tower, Suite 1850, San Francisco, California 94105-1018
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (415) 536-4744
_________________________________
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Common Stock
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. YES [X] NO [ ].
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of Registrant's knowledge, in definitive proxy as information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ X ]
As of March 17, 1997, the aggregate market value of the Registrant's Common
Stock held by nonaffiliates of the Registrant was $4,215,650 based on the last
transaction price as reported on the American Stock Exchange. This calculation
does not reflect a determination that certain persons are affiliates of the
Registrant for any other purposes.
The number of shares outstanding on March 17, 1997, was 10,123,153.
<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL
TENERA, Inc. ("TENERA" or the "Company"), a Delaware corporation, was
formed in connection with the conversion of TENERA, L.P. (the predecessor of
the Company, the "Predecessor Partnership") into corporate form (the "Merger"
or "Conversion"), completed on June 30, 1995. Pursuant to the Merger, the
Company succeeded to the business, assets, and liabilities of the Predecessor
Partnership. Therefore, the Company and the Predecessor Partnership are
sometimes collectively referred to herein as TENERA or the Company. (See Note
1 to Financial Statements. Organization)
The Company provides a broad range of professional services and software
products to solve complex management, engineering, environmental, and safety
challenges associated with the licensing, operation, asset management, and
maintenance of power plants and mass transit systems. Its services and
products cover the following general areas: consulting and management
services and software services, products, and systems.
In the area of consulting and management services, TENERA provides services
to assist its commercial electric power industry clients with respect to
nuclear and fossil plant operations and maintenance, nuclear safety and
licensing, organizational effectiveness, management audits, utility and
project management, risk management, and certain environmental engineering
tasks, and also provides expert witness and analysis support for regulatory
and legal proceedings. For its governmental clients, TENERA provides the
Department of Energy ("DOE") and DOE prime contractors with assistance in
devising, implementing, and monitoring strategies to upgrade from an
operational, safety, and environmental perspective at DOE-owned nuclear
reactor sites. For the mass transit area, TENERA provides its clients with
consulting services associated with the maintenance of their rolling stock,
right-of-way, and facilities. The software services, products, and systems
area complements the management and consulting services areas providing
software services and information management products, specialized data bases,
and systems which support electric power generation and mass transit systems
in areas such as regulatory compliance, facility operations, maintenance, and
data management.
TENERA has developed expertise in providing solutions to the complex
technical and regulatory issues facing the commercial electric power industry,
particularly with respect to nuclear facilities. Over the past several years,
commercial electric utilities have experienced increased competitive pressure
due to a continued deregulation of electric power production. For example,
utilities continue to find it more difficult to recover total capital
expenditures through rate increases, as well as facing increased competition
from independent power producers, alternative energy production, and
cogeneration. During the same period, utilities have responded to continued
regulatory pressures to comply with complex safety and environmental
guidelines. Safety problems and environmental issues have also emerged at
government-owned production facilities. A massive program is underway
throughout the DOE complex of nuclear facilities to comply with health,
safety, and environmental requirements similar to those applicable to
commercial facilities, principally in the areas of hazardous wastes,
decontamination, decommissioning, and remediation. Electric utilities, as well
as a variety of other industries, have been subjected to extensive regulation
regarding environmentally safe handling of hazardous materials. It has been
TENERA's strategy to provide solutions to these issues by providing clients
with a high level of professional skills and a broad range of scientific,
technological, and management resources, including software and data bases
which are used either in support of consulting projects or as the basis for
development of stand alone software products and systems. The Company assists
its clients in the initial identification and analysis of a problem, the
implementation of a technologically feasible solution that client management
believes will be sensitive to business and public interest constraints, and
the ongoing monitoring of that solution.
During 1995, the Company formed TENERA Rocky Flats, LLC ("LLC"), a Colorado
limited liability company, to provide consulting and management services in
connection with participation in the Performance Based Integrating Management
Contract ("Rocky Flats Contract") at the DOE's Rocky Flats Environmental
Technology Site ("Site").
1
<PAGE>
BACKGROUND
The Company's principal markets are the commercial electric utility
industry and the DOE-owned nuclear reactor sites. The electric utility
industry has undergone considerable change in recent years and faces a complex
mix of economic and regulatory pressures. There has been gradual deregulation
of the production and distribution of electricity, and the associated desire
by utilities to meet demand for electricity through higher operating
efficiency. Some of the Company's largest commercial clients have responded to
a more competitive environment by implementation of significant cost control
measures.
Electric utilities and the DOE-owned nuclear reactor sites also face close
scrutiny resulting from public concern over health, safety, and the
environment. The Company believes that increased enforcement of environmental
laws and regulations at various levels of government continues to be prompted
by publicity and public awareness of environmental problems and health hazards
posed by hazardous materials and toxic wastes.
Economic pressures have resulted in certain changes in the focus of
electric utility management. For example, the rate-making process now
represents a significant area of risk to utilities. This has highlighted the
importance of careful planning and documentation in connection with rate case
preparation. Furthermore, rate base decisions apparently are shifting their
emphasis to ongoing performance reviews related to such measures as plant
capacity factors. This has resulted in substantial penalties for extended
plant outages and has stimulated actions by the utilities to assure more
reliable operations.
The DOE has begun the implementation of programs to address safety problems
and environmental concerns which have emerged at its nuclear facilities. These
programs are designed to bring the operations into compliance with a variety
of health, safety, and environmental requirements, similar to those applicable
to the commercial electric utility industry. The DOE's decontamination,
decommissioning, and remediation programs are also aimed at achieving
significant cleanup of its hazardous waste storage facilities and the partial
shutdown of nuclear operations at certain of its sites.
The markets for electric utility and DOE facility professional services and
software products covers a broad range of activities. Typical markets include
waste management, outage support, operating plant services, licensing support,
safety and health management, maintenance and information services,
decommissioning consulting, risk assessment, quality assurance and control,
organizational effectiveness, engineering support, records management, fuel
related services, and plant security.
In recent years, the slowdown in construction of commercial power plants
has placed a premium on extending existing plant life and has shifted the
electric utility commercial market emphasis. This has also resulted in greater
attention by utilities to management systems for preventive maintenance and
improved methods of plant operation, which may, in time, result in the
expansion of the market for services and software associated with the
efficient and profitable operation of existing capacity.
The Company's other market, mass transit systems, consists of public
entities that provide ground transportation services to the general public.
The properties are typically characterized as either bus or rail operators,
with rail and large bus operators comprising approximately 75% of the budgeted
mass transit funds for maintenance and capital assets. The transit industry
consists primarily of government or quasi-government agencies, which are
subject to swings in government subsidy levels, and operate in a political
arena. A significant portion of this funding is spent by the operators on
asset operation and maintenance. In several sectors of the country, transit
infrastructure and fleets are aging and may require extensive maintenance or
replacement to the extent that capital budgets will allow.
The industrial association, American Public Transit Association ("APTA") is
a strong representative of the transit industry, with a membership comprised
of over 96% of the transit organizations. TENERA has established close and
active ties with APTA in order to maintain a clear understanding of the issues
facing this industry. The Company has sold total solution systems and services
to some of the most prestigious operators in the industry (i.e., New York
Metropolitan Transit Authority and Amtrak). The experience gained during these
engagements has provided the Company's transit consultants with additional
insight into the day-to-day, on-the-line problems which must be solved by the
operator's maintenance organizations.
2
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SERVICES AND PRODUCTS
The Company provides its services by utilizing its professional skills and
technological resources in an integrated approach which combines technical and
project management capabilities with software systems and data bases. Services
performed by the Company typically include one or more of the following:
consultation with the client to determine the nature and scope of the problem,
identification and evaluation of the problem and its impact, development and
design of a process for correcting the problem, preparation of business plans,
preparation of reports for obtaining regulatory agency permits, and analysis
in support of regulatory and legal proceedings. The Company operates in one
business segment providing services which cover these general areas:
consulting and management services and software services, products, and
systems.
The following table reflects the percentage of revenues derived for each of
these areas for the period indicated during the fiscal years ended December
31, 1994 through 1996:
<TABLE>
<CAPTION>
________________________________________________________________________
Year Ended December 31,
--------------------------
1996 1995 1994
________________________________________________________________________
<S> <C> <C> <C>
Consulting and Management Services ......... 91.8% 85.5% 83.6%
Software Services, Products, and Systems ... 8.2% 14.5% 16.4%
________________________________________________________________________
</TABLE>
Consulting and Management Services. The Company's consulting and management
services involve determining a solution to client problems and challenges
arising in the design, operation, and management of large facilities and mass
transit systems. Focus is also placed on providing expertise in the wide range
of disciplines required to resolve complex legal and regulatory issues and
offering executives guidance in planning and implementing a coordinated,
effective response to such issues. The Company applies its professional
skills, software, and specialized data bases to all aspects of these problems
and challenges in the following general areas:
- Operations and maintenance
- Engineering design review and verification
- Nuclear safety and licensing
- Organizational effectiveness
- Management audits
- Project management
- Nuclear safety and criticality at DOE facilities
- Environmental engineering issues at DOE and electric utility facilities
Software Services, Products, and Systems. To complement its professional
services, the Company offers a range of information software services,
products, and systems including data bases designed to support mass transit
and electric utility clients in areas such as asset management, regulatory
compliance, facility operations, and equipment maintenance and data management
related to management consulting, operating performance, and environmental
engineering requirements. The principal proprietary aspect of the software
business lies in the ability to utilize it to solve client problems and to
market this capability. Software applications for a variety of industrial
sectors and requirements have been developed for PC, mini, and mainframe
hardware installations. The Company offers interactive software applications
for mass transit systems or large facility information management
requirements, which are designed for use with IBM mainframe and networked
personal computer environments. Major core products which are customized to
the client's specifications include:
- An on-line interactive system for coordinating and controlling all
aspects of maintenance for large mass transit systems and electric
utility facilities
3
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- Networked PC software to manage nuclear safety-related data bases and
engineering processes in conformance with rigorous software quality
assurance requirements
MARKETING AND CLIENTS
Marketing. The Company's marketing strategy emphasizes its ability to offer
a broad range of services and software designed to meet the needs of its
clients in a timely and cost-efficient manner. The Company has the
organization and capability to undertake not only small tasks requiring a few
professionals but also the management, staffing, design, and implementation of
major projects which may last for several months and involve large numbers of
professionals in several geographic locations. Characteristic of TENERA's
marketing strategy are significant projects in which initial contracts have
been only a fraction of the ultimate sale.
The Company provides financial incentives to attract senior technical
professionals with extensive utility and transit industry experience and to
encourage these individuals to market the complete range of TENERA's services
and software throughout existing and potential customer organizations.
TENERA's marketing efforts are facilitated by the technical reputation and
industry recognition often enjoyed by its professional staff. TENERA's
reputation in the electric power and mass transit industries often leads to
invitations to participate at an early stage in the conceptualization of a
project. During this phase, the Company assists clients in developing an
approach for efficiently and productively solving a problem. This assistance
can lead, in turn, to a request for TENERA to use existing software or to
develop software systems to solve the problem. If new services or products are
developed for a client, they generally are marketed to other clients with
similar needs.
Clients. During the year ended December 31, 1996, TENERA provided services
and software to over 75 clients involving over 125 contracts. During the year
ended December 31, 1995, TENERA provided services and software to over 66
clients involving over 150 contracts. Over 80% of TENERA's clients during the
year ended December 31, 1996, had previously used its services or software.
During the year ended December 31, 1996, two customers, Kaiser-Hill
Company, LLC ("Kaiser-Hill"), prime contractor of the Rocky Flats Contract,
and Commonwealth Edison Company ("ComEd"), accounted for approximately 68% of
the Company's total revenue. Kaiser-Hill and ComEd represented approximately
56% and 12%, respectively. During the year ended December 31, 1995, these two
clients accounted for approximately 38% of the Company's total revenue
(Kaiser-Hill - 31%; ComEd - 7%). The Company has maintained working
relationships with Kaiser-Hill and ComEd for two years and ten years,
respectively, during which time various contracts have been completed and
replaced with new or follow-on contracts. There can be no assurance that these
relationships will be maintained at current levels or beyond the existing
contracts, and the loss of these clients could have a material adverse effect
on the Company.
OPERATIONS
The Company contracts for the billing of its services in one of four ways:
time and materials ("T & M"), cost plus fixed fee ("CPFF"), cost plus
incentive fee ("CPIF"), or fixed price. T & M, CPFF, and CPIF contracts, which
cover a substantial amount of TENERA's revenues, are generally billed monthly
by applying a multiplier factor to specific labor costs or by use of a fixed
labor rate per hour charged to each project. T & M, CPFF, and CPIF contracts
are generally structured to include "not-to-exceed" ceilings; however, if
after initial review or after work has started, it is noted that additional
work beyond the initial scope of work is required, the contract normally can
be renegotiated to include such additional work and to increase the contract
ceiling accordingly. The Company also receives license and annual maintenance
fees from contracts involving software products. During the year ended
December 31, 1996, such fees amounted to $283,000 ($814,000 in 1995).
Fixed-price contracts are generally applicable to instances in which TENERA
has been requested to deliver services and/or products previously developed or
products and/or services deliverable to multiple customers. Certain fixed
price contracts are established where TENERA is developing software products
or transferring the technology to a new platform.
4
<PAGE>
TENERA generally receives payments on amounts billed 30 to 90 days after
billing, except for retention under contracts. Since the majority of TENERA's
clients are utility companies, DOE, DOE prime contractors, or major mass
transit systems, TENERA historically has experienced a low percentage of
losses due to poor credit risks.
BACKLOG
As of December 31, 1996, TENERA had contracted a backlog of approximately
$6.7 million, all of which is cancelable by the clients. Contracted backlog
represents the aggregate of the residual (unspent) value of those active
contracts entered into by TENERA for services which are limited by a
contractual amount and does not include any estimates of open-ended services
contracts or unfunded backlog that may result from additions to existing
contracts.
Since all outstanding contracts are cancelable, there is no assurance that
the revenues from these contracts will be realized by the Company. If any
contract is canceled, there is no assurance that the Company will be
successful in replacing such contracts.
COMPETITION
The market for consulting and management services and related software
products and services is highly competitive and TENERA competes with several
larger firms with significantly greater resources. The primary competitive
factor in the market for consulting and management services is price, and a
number of TENERA's competitors are able to offer such services at prices that
are lower than those offered by TENERA.
RESEARCH AND DEVELOPMENT
It has been TENERA's policy to undertake development projects of software,
systems, and data bases only if they can be expected to lead directly to
proprietary products that may be generally marketable. A portion of TENERA's
research and development effort may be funded through customer-sponsored
projects, although the rights to the systems and data bases generally remain
with TENERA. Because TENERA's research and development activities involve the
integration of customer-funded, cost sharing, and TENERA-funded projects, it
is not possible to segregate on a historical basis all of the specific costs
allocable as research and development costs. In 1996 however, TENERA expended
in excess of $562,000 ($68,000 in 1995) of its funds on software development
designed to meet customers needs for 1996 and beyond.
PATENTS AND LICENSES
The Company does not hold any patents material to its business. TENERA
relies upon trade secret laws and contracts to protect its proprietary rights
in software systems and data bases. The license agreements under which
customers acquire the rights to use TENERA's products generally restrict the
customers' use of the products to their own operations and prohibit disclosure
to others.
PERSONNEL
At December 31, 1996, the Company employed a total of 176 consultants,
engineers, programmers, and scientists and a supporting administrative staff
of over 30 employees. Nine employees hold doctorates and 71 employees hold
master's degrees. TENERA also retains the services of independent contractors
in order to fulfill specific needs for particular projects. None of TENERA's
employees are represented by a labor union.
ITEM 2. PROPERTIES
The Company's headquarters are located in San Francisco, California, and
consist of approximately 13,500 square feet of leased office space. TENERA
also leases approximately 5,000 square feet of office space in Hartford,
Connecticut. These leases expire in 1997 and 2000, respectively. Additionally,
TENERA maintains leases covering approximately 8,000 square feet in total in
Louisville, Colorado; Knoxville, Tennessee; and Richland, Washington which
expire at various dates through 1998.
5
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The Company believes that its facilities are well maintained and adequate
for its current needs.
ITEM 3. LEGAL PROCEEDINGS
On November 4, 1994, PLM Financial Services, Inc. ("PLM") filed an action
against the Predecessor Partnership, among others, in the Superior Court of
California for the County of Alameda. The action entitled PLM Financial
Services, Inc. v. TERA Corporation, et al., Case No. 743 439-0, seeks damages
in excess of $4.6 million in unpaid equipment rent and other unspecified
damages allegedly owing to PLM under an equipment lease dated September 29,
1984 between PLM and TERA Power Corporation ("TERA Power"), a former
subsidiary of TERA Corporation (the "Predecessor Corporation"). PLM has named
the Predecessor Partnership in the action pursuant to a Guaranty dated
September 24, 1984 of the lease obligations of TERA Power made by the
Predecessor Corporation. Upon the liquidation of the Predecessor Corporation
in late 1986, the stock of TERA Power was transferred to the TERA Corporation
Liquidating Trust (the "Trust") and was thereafter sold to Delta Energy
Projects Phases II, IV, and VI pursuant to a stock purchase agreement dated
May 31, 1991. Management understands that TERA Power has asserted various
defenses to the claims asserted by PLM in the action. Moreover, management
believes that, even if there is liability under the lease, the Guaranty has
been exonerated and the Company will be able to defend this action
successfully. Management does not believe that eventual resolution of this
matter will have a material effect on the Company's financial position;
however, an adverse outcome could have a material adverse impact on the
financial position, results of operations, and cash flows of the Company.
On October 13, 1995, the League for Coastal Protection ("League") filed an
action on behalf of the League and the general public against the Company,
among others, in the Superior Court of California for the County of San
Francisco. The action entitled League for Coastal Protection v. Pacific Gas &
Electric Company ("PG&E"), et al., Case No. 973182, seeks injunctive relief
and disgorgement of unspecified profits under the California Business and
Professions Code, Section 17200, et seq. The plaintiff contends that certain
studies performed by the Company and its predecessors respecting the
requirements of 316(b) of the Clean Water Act, that ultimately were submitted
by PG&E to the Regional Water Quality Control Board ("RWQCB") in 1988 in
connection with the Diablo Canyon Nuclear Power facility at Diablo Canyon,
California, were deficient in various respects, and that the Company and PG&E
covered up those deficiencies from the RWQCB and other state agencies. On
October 13, 1995, the League filed an action against the Company among others,
in the United States District Court for the Northern District of California,
entitled League for Coastal Protection v. Pacific Gas & Electric Company, et
al., Case No. C96-1393DLJ, seeking injunctive and other relief under the
United States Clean Water Act related to the same studies and reporting
described above. On February 5, 1996, John W. Carter filed an action against
the Company and others in the United States District Court for the Northern
District of California entitled United States of America, ex rel. and State of
California, ex rel., John W. Carter v. Pacific Gas & Electric Company, et al.,
Case No. C-95-2843-MHP, under the False Claims Act. This action, which is
based on the same studies and reports described above, seeks unspecified
damages and penalties. An agreement has been reached in principal for a global
settlement with the League, Carter, the California Attorney General, and the
Environmental Protection Agency. While the settlement is being documented, all
matters have been stayed, and/or held in abeyance, pending consummation of the
settlement. As a result of the settlement, all of the actions will be
dismissed. The Company is not required to make any payment or other
contribution to the settlement.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
6
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Shares of the Company's Common Stock are listed for trading on AMEX under
the symbol TNR. The first trading day on AMEX was June 30, 1995, at which time
10,417,345 shares were outstanding. The Units of the Predecessor Partnership
were listed for trading on AMEX under the symbol TLP. The first and last
trading days on AMEX for the Predecessor Partnership was January 28, 1988, and
June 30, 1995, respectively. There were approximately 500 shareholders of
record as of March 17, 1997.
<TABLE>
<CAPTION>
___________________________________________________________________________________
1996 1995 1994
------------------ ------------------ ------------------
Price Range of Price Range of Price Range of
TENERA, Inc. TENERA, Inc. Predecessor
Shares Shares (1) Partnership Units
------------------ ------------------ ------------------
High Low High Low High Low
___________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C>
First Quarter .... $ 1.375 $ 0.875 $ 0.9375 $ 0.50 $ 1.6875 $ 1.25
Second Quarter ... 1.4375 0.875 1.1875 0.75 1.4375 1.0625
Third Quarter .... 1.0625 0.75 1.875 1.1875 1.1875 0.50
Fourth Quarter ... 0.875 0.625 1.50 0.875 1.3125 0.625
___________________________________________________________________________________
(1) Reflects trading prices of the Predecessor Partnership Units for the period
from January 1, 1995 to June 30, 1995.
</TABLE>
The Board of Directors of the Company determines the amount of cash
dividends which the Company may make to shareholders after consideration of
projected cash requirements and a determination of the amount of retained
funds necessary to provide for growth of the Company's business. The Company
and its Predecessor Partnership have made no distributions since 1991. The
Company does not anticipate resumption of cash distributions in the
foreseeable future.
7
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ITEM 6. SELECTED FINANCIAL DATA
The following combined selected financial data of the Company for the five
prior fiscal years should be read in conjunction with the combined financial
statements and related notes included elsewhere.
TENERA, INC.
FINANCIAL HIGHLIGHTS
<TABLE>
<CAPTION>
(In thousands, except per unit and statistical amounts)
_______________________________________________________________________________________________________________
Year Ended December 31,
----------------------------------------------------
1996 1995 1994 1993 1992
_______________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C>
OPERATIONS DATA
Revenue ................................................ $ 24,003 $ 25,545 $ 23,600 $ 29,340 $ 36,648
Operating (Loss) Income ................................ (1,382) 1,203 (1,239) (315) 826
Net (Loss) Earnings .................................... (1,080) 898 (1,202) (294) 795
Earnings (Loss) per Share/Equivalent Unit(1) ........... (0.11) 0.07 (0.13) (0.03) 0.08
Weighted Average Shares/Equivalent Units(1) ............ 10,248 10,014 9,555 9,646 9,710
CASH FLOW DATA
Net Cash Provided (Used) by Operating Activities ....... 2,954 (286) 17 1,472 (626)
Net Increase (Decrease) in Cash and Cash Equivalents ... 2,490 (469) 363 1,085 (1,418)
FINANCIAL POSITION AT DECEMBER 31
Cash and Cash Equivalents .............................. 3,964 1,474 1,943 1,580 495
Working Capital ........................................ 4,555 5,836 4,024 5,196 5,383
Total Assets ........................................... 7,940 10,087 8,616 9,345 11,111
Total Liabilities ...................................... 3,062 3,912 4,069 3,524 4,932
Shareholders' Equity/Partners' Capital ................. 4,878 6,175 4,547 5,821 6,179
Book Value per Share/Equivalent Unit(1)(2) ............. 0.48 0.60 0.48 0.60 0.64
OTHER INFORMATION
Number of Employees .................................... 208 270 170 202 263
_______________________________________________________________________________________________________________
(1) Equivalent Units represent both the general and limited partners' interest in Predecessor Partnership
earnings.
(2) Calculated as Shareholders' Equity divided by shares of Common Stock outstanding at December 31, 1996 and
December 31, 1995, and as the Predecessor Partnership's Partners' Capital divided by Equivalent Units
outstanding at December 31, for the years 1992 to 1994, respectively.
</TABLE>
8
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
TENERA, INC.
RESULTS OF OPERATIONS
<TABLE>
<CAPTION>
______________________________________________________________________________________________________
Year Ended December 31,
--------------------------------------------------------------
1996 1995 1994
---------------------- ---------------------- ----------
% Increase % Increase
(Decrease) (Decrease)
% of to Prior % of to Prior % of
Revenue Year Revenue Year Revenue
______________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C>
Revenue .............................. 100 (6) 100 8 100
Direct Costs ......................... 65 (4) 63 10 62
General and Administrative Expenses .. 41 19 32 (23) 45
Other Income (Expenses) .............. 0 275 0 (69) 0
Special Items, Net ................... 0 N/M -- (100) 2
---------- ---------- ---------- ---------- ----------
Operating (Loss) Income ............ (6) (215) 5 N/M (5)
Interest Income, Net ................. 1 164 0 (97) 0
---------- ---------- ---------- ---------- ----------
Net (Loss) Earnings Before Income
Tax Benefit/Expense .................. (5) (220) 5 N/M (5)
========== ========== ========== ========== ==========
______________________________________________________________________________________________________
N/M Not meaningful.
</TABLE>
YEAR ENDED DECEMBER 31, 1996 VERSUS YEAR ENDED DECEMBER 31, 1995
Lower revenue and higher general and administrative expenses resulted in a
net loss before income tax benefit/expense of $1,217,000, compared to net
earnings before income tax expense of $1,204,000 in 1995.
The revenue decrease is primarily the result of reduced sales of consulting
and management services throughout the year; lower sales activity of software
services until the award of a software contract in August 1996, valued at
approximately $2.9 million, with the National Railroad Passenger Corporation
("Amtrak"); and the reduced availability of staff reassigned to internal
software product development; partially offset by an increase in revenue
related to the Rocky Flats Contract at DOE's Site. Concentration of revenue
from the government sector increased to 61% of total revenue for 1996 from 49%
in 1995. This is primarily the result of the Rocky Flats Contract which was in
existence for the entire year of 1996, but commenced in mid-1995. During 1996,
the government sector quarterly revenue declined approximately 40% from the
first quarter to the fourth quarter, due primarily to site budget constraints
on the Rocky Flats Contract. The Company is unable to determine whether future
budgetary actions at Rocky Flats will further reduce revenue from the Rocky
Flats Contract. The number of clients served during the year increased
slightly to 75 from 66 in 1995. Revenue from software license and maintenance
fees during 1996 decreased to $283,000 from $814,000 in 1995, primarily due to
fewer new software installations.
Direct costs were lower in 1996, primarily as a result of the reduced
revenue generation opportunities. Gross margins decreased to 35% in 1996 from
37% in 1995 due to the full year impact of the lower margin Rocky Flats
Contract. This lower margin contribution is primarily due to the cost-plus
pricing characteristics of
9
<PAGE>
the contract. Gross margin contribution from overall project activity during
the year, before consideration for the impact of the Rocky Flats Contract, was
up slightly to 44% in 1996 from 43% in 1995.
General and administrative costs increased by $1.6 million in 1996,
primarily reflecting increased professional staff time spent on overhead and
sales activities, higher severance costs, and increased internally-funded
software development costs. Prior to January 1, 1996, the Company's product
development had been primarily funded by clients as part of the development of
software applications. These cost increases resulted in an increase in general
and administrative expenses as a percentage of revenue from 32% in 1995 to 41%
in 1996.
Other income for 1996 primarily relates to the final liquidation, in April
1996, of the Company's interest in the Individual Plant Evaluation Partnership
("IPEP partnership"), a technical services partnership in which it was an
operating participant until its termination in 1995. The Company previously
booked a loss provision of $30,000 in 1995 for estimated closure costs of the
IPEP partnership. Other income also includes gains on the sale of assets
related to facility downsizing (approximately $10,000 in 1996 and 1995).
The special items' net expense of $50,000 is comprised of two items (see
Note 8 to Financial Statements. Special Items). First, in the second quarter
of 1996, the Company recorded a $250,000 adjustment to the reserve related to
the settlement of specific disputed costs on certain government contracts with
the DOE. This positive earnings impact resulted from a further reduction of
the reserve for sales adjustment established in 1991, and is based upon the
successful government audits and contract closeouts of prior periods. The
second special adjustment occurred in December 1996, and more than offset the
first item. This adjustment related to the repricing of debt owed to the
Company by one of its executive officers (see Note 3 to Financial Statements.
Related Party Transactions). The principal amount of the note was reduced to
the then current fair market value of the stock held as security, resulting in
a charge to earnings of approximately $300,000.
Net interest income in 1996 represents earnings from the investment of cash
balances in short-term, high-quality, government and corporate debt
instruments, partially offset by capital lease interest expense. The Company
had no borrowings under its line of credit during 1996. Net interest income in
1995 reflects investment earnings on smaller average cash balances, partially
offset by interest costs associated with short-term borrowing on the Company's
line of credit during the first six months of 1995.
YEAR ENDED DECEMBER 31, 1995 VERSUS YEAR ENDED DECEMBER 31, 1994
Higher revenue and lower general and administrative expenses resulted in
net earnings before income tax expense for 1995 of $1,204,000 versus a pre-tax
loss of $1,702,000 in 1994 before the special item for settlement with the
DOE.
The revenue increase was primarily a result of the impact of beginning the
Rocky Flats Contract at the Site on July 1, 1995. This contract is a cost-plus
incentive agreement with estimated revenue for direct and overhead cost
recovery exceeding $16 million and an incentive fee percentage comprised of a
1% base and 4.5% maximum performance-based award over a two-year base period.
The total period of performance for the Rocky Flats Contract includes options
to extend the contract beyond the two-year initial base period, upon the
request of Kaiser-Hill, through June 30, 2000. The Rocky Flats Contract, as
with all TENERA contracts, is cancelable by the clients (see Item 1.
"Business"). The Rocky Flats Contract's impact on revenue for 1995 was
partially offset by the impact of reduced technical services sales to electric
utility clients and related staffing when compared to 1994.
Concentration of revenue from the government sector increased to 49% of
total revenue for 1995 from 36% in 1994. This was primarily due to the Rocky
Flats Contract activity which represented 45% of total revenue in the final
six months of 1995 and 31% of total revenue for the entire year. The number of
clients served during the year decreased slightly to 66 from 73 in 1994.
Revenue from software license and maintenance fees during 1995 rose to
$814,000 from $393,000 in 1994, primarily due to the recognition of license
fees associated with achieving certain milestones in the ongoing New York
Metropolitan Transit Authority and Long Island Rail Road installations.
10
<PAGE>
Direct costs were higher in 1995, primarily reflecting the increased
staffing for the Rocky Flats Contract. Gross margin contribution from overall
project activity during the year, before consideration for the impact of the
Rocky Flats Contract, was up from 38% in 1994 to 43% in 1995. The 1995 margins
reflected improved pricing in services to electric utility clients and
achievement of milestones under software contracts. The gross margin
contribution for the Rocky Flats Contract was only 19%. This lower gross
margin contribution was primarily due to the cost-plus pricing characteristics
of the contract.
General and administrative expenses decreased by $2,422,000 in 1995 as
compared to 1994, primarily due to overall reduced staff size during the first
half of the year, improved technical staff productivity on client projects,
and lower professional service, facilities, travel, and office equipment costs
in 1995, partially offset by costs associated with the Conversion incurred in
1995 and incentive compensation awards. These net cost reductions resulted in
a drop in general and administrative expenses as a percentage of revenue from
45% in 1994 to 32% in 1995.
Other expense for 1995 primarily related to the Company's interest
($30,000) in the estimated loss of the Individual Plant Evaluation Partnership
("IPEP"), a technical services partnership in which it was an operating
participant, partially offset by a gain on the sale of assets related to
facility downsizing ($10,000).
The special item of $500,000 in 1994, reflected the estimated settlement of
specific disputed costs on certain U.S. Government contracts with the DOE.
This positive earnings adjustment resulted from a partial reduction of the
reserve for sales adjustment established in 1991. The reserve was established
to provide for a dispute between the Company and the DOE with respect to the
allowability and amount of potential rate adjustments on U.S. Government
contracts for certain employee compensation costs.
Net interest income represented earnings from the investment of cash
balances in short-term, high-quality, corporate debt instruments, offset by
the interest costs associated with short-term borrowing on the Company's line
of credit during the first six months of 1995.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents increased by $2,490,000 during 1996. The increase
was due to cash provided by operations ($2,954,000), offset by cash used in
net acquisition of equipment ($247,000), and in financing activities
($217,000).
Receivables decreased by $5,758,000 from December 31, 1995, primarily due
to an increase in collections and a reduction in revenue during 1996. The
allowance for sales adjustments decreased by $1,262,000 since December 31,
1995, primarily due to contract closeouts of various government contracts from
prior periods.
Accounts payable decreased by $144,000 since the end of 1995, primarily due
to the net reduction of prepaid fixed-price project commitments. Accrued
compensation and related expenses decreased by $382,000 during the period
primarily reflecting staff reductions.
Income taxes payable and deferred income taxes decreased by $216,000 and
$90,000, respectively, during the period resulting from payment of 1995 income
taxes and reduced tax liability associated with 1996 net losses.
Equity decreased by $1,297,000 in 1996, due to net losses ($1,080,000) and
the repurchase of stock ($217,000).
No cash dividend was declared in 1996.
The impact of inflation on revenue and projects of the Company was minimal.
At December 31, 1996, the Company had available $4,500,000 of a $5,000,000
revolving loan facility with its lender which expires in May 1998. The Company
has no outstanding borrowing against the line; however, $500,000 was assigned
to support standby letters of credit.
Management believes that cash expected to be generated by operations, the
Company's working capital, and its loan facility are adequate to meet its
anticipated liquidity needs through the next twelve months.
11
<PAGE>
OPERATING RISKS
Statements contained in this report which are not historical facts, are
forward-looking statements as that term is defined in the Private Securities
Litigation Reform Act of 1995. Such forward-looking statements are subject to
the risks and uncertainties which could cause actual results to differ
materially from those projected, including those risks and uncertainties
discussed below.
History of Losses; Uncertainty of Future Profitability. Revenue decreased
each year from 1990 to 1994 ($51.2 million in 1990, $44.1 million in 1991,
$36.6 million in 1992, $29.3 million in 1993, $23.6 million in 1994), and has
remained relatively flat from 1994 through 1996, while net earnings (loss)
from operations over the same periods declined from $7.9 million in 1990, to
$(6.2 million) in 1991, $0.8 million in 1992, $(0.3 million) in 1993, $(1.2
million) in 1994, $0.9 million in 1995, and $(1.2 million) in 1996. There can
be no assurance of the level of earnings, if any, that the Company will be
able to derive in the future.
Uncertainty Regarding Industry Trends and Customer Demand. As a result of
the slowdown in the construction of power plants and the absence of new power
plants scheduled for construction, as well as the gradual deregulation of the
production and distribution of electricity, the market for engineering
services and software relating to licensing and construction of power plants
has contracted, and the market for services and software related to efficient
and profitable operation of existing capacity has expanded. This trend has
caused some electric utilities to close power plants and to curtail certain
other activities traditionally supported by TENERA. This reduced demand for
TENERA's traditional engineering services and software, which has caused
TENERA to discontinue certain business units and related facilities, and to
downsize and realign engineering staff, has had, and may continue to have, a
material adverse impact on operating results. TENERA's profitability depends
on its ability to successfully adjust to these industry changes through
additional downsizing or realignment of professional staff and through the
successful development and marketing of new services and software. There can
be no assurance that TENERA will have the financial and other resources
necessary to successfully research, develop, introduce, and market new
products and services, that if, or when, such new products or services are
introduced, they will be favorably accepted by current or potential customers,
or that TENERA will be otherwise able to fully adjust its services and
products to meet the changing needs of the industry. See "Business -
Background."
Uncertainty of Access to Capital; Research and Development. Management
currently believes that cash expected to be generated from operations, the
Company's working capital, and its available loan facility, are adequate to
meet its anticipated near-term needs. If cash from operations is less than
currently anticipated, TENERA may need to seek other sources of capital.
Moreover, additional amounts will be required to adequately fund research and
development of new products and services necessary to meet changing industry
trends and customer demand. There can be no guarantee that such sources will
be available in sufficient amounts or on terms favorable to TENERA, or at all.
Reliance on Key Personnel. Due to the nature of the consulting and
professional services business, the Company's success depends, to a
significant extent, upon the continued services of its officers and key
technical personnel and the ability to recruit additional qualified personnel.
The Company experienced a historically high rate of turnover as revenue and
earnings began to decline in 1991 and thereafter, and the further loss of such
officers and technical personnel, and the inability to recruit sufficient
additional qualified personnel could have material adverse effect on the
Company.
Government Contracts Audits. The Company's United States government
contracts are subject in all cases to audit by governmental authorities. The
Company earlier in 1994 concluded an audit begun in 1991 of certain of its
government contracts with the DOE relating to the allowability of certain
employee compensation costs. The Company made a special charge to earnings in
1991 for a $2.4 million provision for the potential rate adjustments then
disputed by the Company and the government. As a result of resolving the
dispute, the Company recognized increases to earnings of $500,000 in 1994 and
$250,000 in 1996. Cash payments to clients associated with the settlement,
which are estimated to be between $400,000 and $500,000, which were accrued
for in the 1991 Special Charge to earnings, are expected to be made as
government contracts with individual clients are closed out. There can be no
assurance that no additional charges to earnings of the Company may result
from future audits of the Company's government contracts.
12
<PAGE>
Litigation. PLM Financial Services, Inc. has filed an action, in the
Superior Court of California for the County of Alameda, seeking damages in
excess of $4.6 million in unpaid equipment rent and other payments allegedly
owing to PLM under an equipment lease between PLM and TERA Power Corporation,
a former subsidiary of TERA Corporation of the Predecessor Corporation. PLM
has named the Company in the action pursuant to a guaranty of the lease
obligations made by the Predecessor Corporation. Management believes that,
even if there is liability under the lease, the guaranty has been exonerated
and the Company will be able to defend this action successfully. Management
does not believe that eventual resolution of this matter will have a material
effect on the Company's financial position; however, an adverse outcome could
have a material adverse impact on the financial position, results of
operations, and cash flows of the Company. See "Legal Proceedings."
Competition. The market for engineering and management services and related
software products and services is highly competitive and TENERA competes with
several larger firms with significantly greater resources. Significant
competitive factors in the market for engineering and management services are
price and the ability to offer new products and services designed to meet
changing customer demand. A number of TENERA's competitors are able to offer
such services at prices that are lower than those offered by TENERA, and to
devote far greater resources toward the development of new products and
services. This competition has had, and is expected to continue to have, a
material adverse impact on TENERA's business.
Reliance on Major Customers. During fiscal 1996, two customers, Kaiser-Hill
and ComEd, accounted for approximately 68% of the Company's total revenues,
and during 1995, these two customers accounted for approximately 38% of the
Company's total revenues. All outstanding customer contracts are cancelable
upon notice by either party, and therefore, there can be no assurance that
relationships with customers will be maintained at existing levels, or at all.
Budgetary constraints at the Rocky Flats Site resulted in a decline in revenue
attributable to Kaiser-Hill, and a 40% decline in revenue from the government
sector, generally from the first quarter to the fourth quarter of 1996, and if
continued, such budgetary constraints could result in further declines in
revenue in the future. The discontinuation or material reduction of business
relations with these customers could have a material adverse impact on
TENERA's business. See "Business - Marketing and Clients."
13
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
TENERA, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
(In thousands, except per share amounts)
___________________________________________________________________________
Year Ended December 31,
-------------------------------
1996 1995 1994
___________________________________________________________________________
<S> <C> <C> <C>
Revenue .................................. $ 24,003 $ 25,545 $ 23,600
Direct Costs ............................. 15,527 16,082 14,612
General and Administrative Expenses ...... 9,843 8,240 10,662
Other Income (Expenses) .................. 35 (20) (65)
Special Items, Net ....................... (50) -- 500
--------- --------- ---------
Operating (Loss) Income .............. (1,382) 1,203 (1,239)
Interest Income, Net ..................... 165 1 37
--------- --------- ---------
Net (Loss) Earnings Before Income
Tax Benefit/Expense .................... (1,217) 1,204 $ (1,202)
=========
Income Tax (Benefit) Expense ............. (137) 306
--------- ---------
Net (Loss) Earnings ...................... $ (1,080) $ 898
========= =========
Net (Loss) Earnings per Share
(Pro Forma for 1995) ..................... $ (0.11) $ 0.07
========= =========
Weighted Average Number of Shares
Outstanding .............................. 10,248 10,014
========= =========
___________________________________________________________________________
See accompanying notes.
</TABLE>
14
<PAGE>
TENERA, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
(In thousands, except share and unit amounts)
__________________________________________________________________________________________
December 31,
---------------------------
1996 1995
__________________________________________________________________________________________
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents .............................. $ 3,964 $ 1,474
Receivables, less allowances of $1,626 (1995 - $2,888)
Billed ............................................... 1,087 4,857
Unbilled ............................................. 2,032 2,758
Other current assets ................................... 534 641
---------- ----------
Total Current Assets ............................... 7,617 9,730
Property and Equipment, Net .............................. 323 340
Other Assets ............................................. -- 17
---------- ----------
Total Assets ..................................... $ 7,940 $ 10,087
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY/PARTNERS' CAPITAL
Current Liabilities
Accounts payable ....................................... $ 1,026 $ 1,170
Accrued compensation and related expenses .............. 2,036 2,418
Income taxes payable ................................... -- 216
Deferred income taxes .................................. -- 90
---------- ----------
Total Current Liabilities .......................... 3,062 3,894
Non-Current Liabilities .................................. -- 18
---------- ----------
Total Liabilities ................................ 3,062 3,912
Commitments and Contingencies
Shareholders' Equity
Common Stock, $0.01 par value, 25,000,000 authorized,
10,417,345 issued and outstanding ...................... 104 104
Paid in capital, in excess of par ...................... 5,698 5,698
Retained (deficit) earnings ............................ (619) 461
Treasury stock - 292,498 shares
(1995 - 87,402 shares) ................................. (305) (88)
---------- ----------
Total Shareholders' Equity ....................... 4,878 6,175
---------- ----------
Total Liabilities and Shareholders' Equity ..... $ 7,940 $ 10,087
========== ==========
__________________________________________________________________________________________
See accompanying notes.
</TABLE>
15
<PAGE>
TENERA, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (PARTNERS' CAPITAL)
<TABLE>
<CAPTION>
(In thousands, except share and unit amounts)
_________________________________________________________________________________________________________________________________
Shareholders' Equity Partners' Capital
----------------------------------------- ------------------------------------------
Paid In
Capital Notes
In Retained from
Common Excess (Deficit) Treasury General Limited Treasury Limited
Stock of Par Earnings Stock Partner Partners Units Partners Total
_________________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
December 31, 1993 ............ $ -- $ -- $ -- $ -- $ 335 $ 6,555 $ (1,065) $ (4) $ 5,821
Repurchase of 51,507 Units ... -- -- -- -- -- -- (76) -- (76)
Amortization of Notes ........ -- -- -- -- -- -- -- 4 4
Net Loss ..................... -- -- -- -- (23) (1,179) -- -- (1,202)
-------- --------- --------- --------- --------- --------- --------- --------- ---------
December 31, 1994 ............ -- -- -- -- 312 5,376 (1,141) -- 4,547
Repurchase of 242,481 Units .. -- -- -- -- -- -- (182) -- (182)
Net Earnings Through
June 30, 1995 ................ -- -- -- -- 9 428 -- -- 437
Merger of Predecessor
Partnership into
TENERA, Inc. ................. 93 4,709 -- -- (321) (5,804) 1,323 -- --
Common Stock Issued at
$0.89 per Share .............. 11 989 -- -- -- -- -- -- 1,000
Repurchase of 87,402 Shares .. -- -- -- (88) -- -- -- -- (88)
Net Earnings for July 1, 1995
to December 31, 1995 ......... -- -- 461 -- -- -- -- -- 461
-------- --------- --------- --------- --------- --------- --------- --------- ---------
December 31, 1995 ............ 104 5,698 461 (88) -- -- -- -- 6,175
Repurchase of 205,096 Shares . -- -- -- (217) -- -- -- -- (217)
Net Loss ..................... -- -- (1,080) -- -- -- -- -- (1,080)
-------- --------- --------- --------- --------- --------- --------- --------- ---------
December 31, 1996 ............ $ 104 $ 5,698 $ (619) $ (305) $ -- $ -- $ -- $ -- $ 4,878
========= ========= ========= ========= ========= ========= ========= ========= =========
_________________________________________________________________________________________________________________________________
See accompanying notes.
</TABLE>
16
<PAGE>
TENERA, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
(In thousands)
_________________________________________________________________________________________________
Year Ended December 31,
----------------------------------
1996 1995 1994
_________________________________________________________________________________________________
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net (loss) earnings ....................................... $ (1,080) $ 898 $ (1,202)
Adjustments to reconcile net (loss) earnings to cash
provided (used) by operating activities:
Depreciation ............................................ 272 298 383
(Gain) Loss on sale of equipment ........................ (8) 1 24
Decrease in allowance for sales adjustments ............. (1,262) (9) (820)
Amortization of Limited Partners' notes ................. -- -- 4
Deferred income taxes ................................... (90) 90 --
Changes in assets and liabilities:
Receivables ........................................... 5,758 (2,137) 1,919
Other current assets .................................. 107 40 (109)
Other assets .......................................... 17 30 23
Accounts payable ...................................... (144) (495) 286
Accrued compensation and related expenses ............. (382) 764 (491)
Income taxes payable ............................... (216) 216 --
Non-Current liabilities ............................... (18) 18 --
---------- ---------- ----------
Net Cash Provided (Used) by Operating Activities .... 2,954 (286) 17
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of property and equipment ..................... (258) (164) (361)
Proceeds from sale of equipment ........................... 11 1 33
---------- ---------- ----------
Net Cash Used in Investing Activities ............... (247) (163) (328)
CASH FLOWS FROM FINANCING ACTIVITIES
(Repayment) Borrowings under bank loan agreement .......... -- (750) 750
Repurchase of equity ...................................... (217) (270) (76)
Issuance of Common Stock .................................. -- 1,000 --
---------- ---------- ----------
Net Cash (Used) Provided by Financing Activities .... (217) (20) 674
---------- ---------- ----------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS ........ 2,490 (469) 363
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR .............. 1,474 1,943 1,580
---------- ---------- ----------
CASH AND CASH EQUIVALENTS AT END OF YEAR .................... $ 3,964 $ 1,474 $ 1,943
========== ========== ==========
_________________________________________________________________________________________________
See accompanying notes.
</TABLE>
17
<PAGE>
TENERA, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
NOTE 1. ORGANIZATION
Company. TENERA, Inc. (the "Company"), a Delaware corporation, was formed
in connection with the conversion of TENERA, L.P. (the predecessor of the
Company; the "Predecessor Partnership") into corporate form (the
"Conversion"). Therefore the Company and the Predecessor Partnership are
sometimes collectively referred to herein as the Company.
On June 30, 1995, the Company completed the Conversion by means of a merger
(the "Merger") of the Predecessor Partnership, its General Partner (Teknekron
Technology MLP I Corporation) and its Operating Partnership (TENERA Operating
Company, L.P.) with, and into, TENERA, Inc. Pursuant to the Merger: (i) the
Company succeeded to the business, assets, and liabilities of the Predecessor
Partnership; (ii) each limited partner Unit previously held by Unitholders in
the Predecessor Partnership, (including 184,946 equivalent Units representing
the interest in the Partnership of the General Partner), automatically
converted to one share of Common Stock of TENERA, Inc.; and (iii) an
additional 1,123,596 shares of Common Stock were issued to the sole
shareholder of the General Partner in consideration of the contribution of
$1,000,000 made to TENERA, Inc. by the General Partner in connection with the
Merger. The Merger was approved by the Unitholders of the Predecessor
Partnership pursuant to the Consent Solicitation Statement/Prospectus dated
June 6, 1995, included in the Company's Registration Statement on Form S-4
(Registration Number 33-58393; the "Form S-4").
TENERA Rocky Flats, LLC ("LLC"), a Colorado limited liability company, was
formed by the Company in 1995 to provide consulting services in connection
with participation in the Performance Based Integrating Management Contract
("Rocky Flats Contract") at the Department of Energy's ("DOE") Rocky Flats
Environmental Technology Site ("Site").
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation. The accompanying consolidated financial statements
include the accounts of the Company and the LLC. All intercompany accounts and
transactions have been eliminated.
Use of Estimates. The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from these
estimates.
Cash and Cash Equivalents. Cash and cash equivalents consist of demand
deposits, certificates of deposit, bank acceptances or repurchase agreements
of major banks having strong credit ratings, and commercial paper issued by
companies with strong credit ratings. The Company includes in cash and cash
equivalents, all short-term, highly liquid investments which mature within
three months of acquisition.
Property and Equipment. Property and equipment are stated at cost
($2,723,000 and $2,518,000 at December 31, 1996 and 1995, respectively), net
of accumulated depreciation ($2,400,000 and $2,178,000 at December 31, 1996
and 1995, respectively). Depreciation is calculated using the straight line
method over the estimated useful lives, which range from three to five years.
Revenue. Revenue from time-and-material and cost plus fixed-fee contracts
is recognized when costs are incurred; from fixed-price contracts, on the
basis of percentage of work completed (measured by costs incurred relative to
total estimated project costs); from software license fees at time of customer
acceptance; and from software maintenance agreements, equally over the period
of the maintenance support agreement (usually 12 months). The Company's
revenue recognition policy for its software contracts is in compliance with
the American Institute of Certified Public Accounts' Statement of Position 91-
1, "Software Revenue Recognition." The Company primarily offers its services
and software products to the electric power industry, the DOE, and the
municipal transit industry in North America.
18
<PAGE>
The Company performs credit evaluations of these customers and normally
does not require collateral. Reserves are maintained for potential sales
adjustments and credit losses; such losses to date have been within
management's expectations. Actual revenue and cost of contacts in progress may
differ from management estimates and such differences could be material to the
financial statements.
During 1996, two clients accounted for 56% and 12% of the Company's total
revenue. During 1995 and 1994, a single client accounted for 31% and a
different client accounted for 29% of total revenue, respectively.
Income Taxes. As a result of the Conversion, the Company is no longer
subject to partnership tax treatment whereby the Company pays no entity-level
tax on Company income. The Company became a C Corporation subject to federal
and state statutory income tax rates for income earned after the close of
business on June 30, 1995. Due to the net loss in 1996, an income tax benefit
has been recorded for the twelve-month period ended December 31, 1996. During
1995, a provision for income taxes was made for the six months ended December
31, 1995; however, no provision for income taxes was made by the Company for
the six months ended June 30, 1995.
Accounting for Stock-Based Compensation. Statement of Financial Standards
No. 123, "Accounting for Stock-Based Compensation," ("FAS 123") is effective
for the Company's 1996 year. The Company continues to account for employee
stock options in accordance with Accounting Principles Board Opinion No. 25
("APB 25") and has provided the pro forma disclosures required by FAS 123 in
Note 4.
Per Share and Pro Forma Per Share Information. Per share data for 1996 is
computed based on weighted average number of shares of common stock
outstanding and common stock equivalents using the treasury stock method. In
accordance with financial reporting guidelines, pro forma earnings per share
information for 1995 was based on the assumption that the Company was taxed
for federal and state income tax purposes as a C Corporation at a 40%
effective tax rate, and was computed based on weighted average number of
shares of common stock outstanding and the effect of common stock equivalents
from outstanding stock options, using the treasury stock method. Historical
earnings (loss) per share information for 1995 and 1994 has been omitted from
the face of the historical statements of operations because this data is not
indicative of the Company's ongoing operations as a result of the change in
tax treatment.
NOTE 3. RELATED PARTY TRANSACTIONS
Teknekron. The principal shareholder of Teknekron Corporation ("Teknekron")
beneficially owned approximately 37%, 36%, and 26% of the Company's
outstanding shares of Common Stock/Predecessor Partnership Units at December
31, 1996, 1995, and 1994, respectively. Teknekron provided management and
related services to the Predecessor Partnership under an advisory services
agreement, which expired on June 30, 1995. Charges to earnings for the
services amounted to none in 1996, $125,000 in 1995, and $600,000 in 1994.
Individual Plant Evaluation Partnership ("IPEP"). The Company was an equal
participant in a partnership, IPEP, with Westinghouse Electric Corporation and
Fauske & Associates, Inc., which provided executive consulting services to
commercial utility companies. IPEP ceased activities in 1995 and dissolved in
April 1996. Revenue recognized for services provided through IPEP amounted to
none in 1996, $390,000 in 1995, and $173,000 in 1994, and represented less
than 1% of total revenue in 1995 and 1994.
The participants paid a royalty to IPEP, equal to 2% to 4% of billed fees
on certain projects, for administrative services. Royalties paid to IPEP
amounted to none in 1996, $1,000 in 1995, and $4,000 in 1994.
The Company's interest in IPEP was accounted for under the equity method.
Each of the participants shared equally in the earnings and losses of IPEP. In
1996, the Company recorded income of $17,000 related to the final liquidation
of IPEP. For 1995, the Company recognized $30,000 as its share of IPEP's 1995
estimated losses ($34,000 in 1994).
Notes Receivable. The Company included in other current assets, notes
receivables from executive officers which amounted to none and $347,639 at
December 31, 1996 and 1995, respectively. In 1996, certain terms of the note
made by an executive officer, related to the purchase of stock by such officer
in 1988, were renegotiated to provide for a purchase price adjustment on the
stock securing the note balance, and the remaining balance of
19
<PAGE>
the note was reduced to the then fair market value of the stock held as
security, resulting in a charge to operations of $300,419 in 1996.
TERA Corporation Liquidating Trust ("Trust"). The Trust was established by
TERA Corporation ("Predecessor Corporation") in 1986, to facilitate the
orderly sale or other disposition of the remaining assets and satisfaction of
all remaining debts and liabilities. The Company did not recognize any income
or expense from the Trust in 1996, 1995, and 1994.
Toltec Development Corporation ("Toltec"). The Company entered into a lease
for approximately 10,000 square feet of office space during 1993 for its
Berkeley facilities with Toltec, an affiliate of Teknekron. The lease expired
in 1995. Expenses related to lease payments to Toltec totaling $141,000 and
$224,000 were recorded in 1995 and 1994, respectively.
NOTE 4. EMPLOYEE BENEFIT PLANS
Incentive Bonus Plans. The Company has incentive plans based on financial
performance. Bonus awards of cash and shares are discretionary and are
determined annually by the Board of Directors. In 1996, there were no charges
to earnings for incentive bonuses ($150,000 in 1995 and none in 1994).
Additionally, $90,000 of the 1995 bonus accrual was not paid and was reversed
in 1996.
Profit Sharing Plan ("PSP"). Effective January 1, 1997, the Company
initiated a profit sharing plan whereby the funding for the plan is based on
overall company profitability as measured by pretax earnings. Twenty percent
of pretax earnings will be distributed quarterly to eligible employees on an
equal percentage of salary basis.
401(k) Savings Plan. The 401(k) Savings Plan is administered through a
trust that covers substantially all employees. Employees can contribute
amounts to the plan, not exceeding 10% of salary. In 1995 and 1994, the
Company matched these amounts with a 50% contribution on a matching
contribution base, not exceeding 6% of salary. Effective January 1, 1996, the
Company's matching contribution increased to 100% of a matching contribution
base, not exceeding 6% of the employee's salary. As of January 1, 1997, the
Company amended the plan to discontinue the matching contribution, but allow
employees to contribute up to 15% of salary. The Company, at its discretion,
may also contribute funds to the plan for the benefit of employees. During
1996, 1995, and 1994, no discretionary amounts were contributed to the plan by
the company.
Money Purchase Plan ("MPP"). On December 31, 1995, the MPP was merged with
and into the 401(k) Savings Plan, eliminating the MPP contribution.
Previously, the MPP was administered through a trust that covered
substantially all employees. In 1995 and 1994, the Company's contribution
amount was 3% of eligible employees annual salaries.
During 1996, charges to earnings for the 401(k) Savings Plan amounted to
$397,000 ($720,000 in 1995 and $492,000 in 1994 for the 401(k) and MPP Plans
combined).
Stock Option Plans. The Company has elected to follow APB 25 and related
interpretations in accounting for its employee stock options because, as
discussed below, the alternative fair value accounting provided for under FAS
123 requires use of option valuation models that were not developed for use in
valuing employee stock options. Under APB 25, because the exercise price of
the Company's employee stock options equals the market price of the underlying
stock on the date of grant, no compensation expense is recognized.
In connection with the Merger, the Company amended its Stock Option Plan to
reflect the fact that options will relate to shares of common stock, instead
of limited partnership units of the Predecessor Partnership. All outstanding
options for units were automatically converted to options to purchase an equal
number of shares of common stock at the original exercise price and on the
same terms and conditions as the original unit options. Under the provisions
of the Company's Stock Option Plan, 1,500,000 shares were reserved for
issuance upon the exercise of options granted to key employees and
consultants. During 1996, options were granted for 391,500 shares at an
exercise price of $1.00, the then fair market value, expiring on February 1,
2002. In 1995, options were granted for 130,000 shares at an exercise price of
$1.1875, the then fair market value, expiring on July 1, 2001. In 1994,
options were granted for 315,000 shares at an exercise price of $1.3125, and
20
<PAGE>
290,000 shares at an exercise price of $0.6875, the then fair market values,
expiring on February 7, 2004, and December 30, 2004, respectively. During
1996, options for 278,500 shares were canceled due to employee terminations
($28,000 and $362,000 in 1995 and 1994, respectively). No options were
exercised in 1996, 1995, and 1994. As of December 31, 1996, options for
1,081,000 shares were outstanding and options for 545,000 shares were
exercisable.
Under the provisions of the 1993 Outside Directors Compensation and Stock
Option Plan, which was approved by the Board of Directors, effective March 1,
1994, 150,000 shares were reserved for issuance upon the exercise of options
granted to non-employee directors. During 1996, options were granted for
50,000 shares at an exercise price of $1.00, the then fair market value,
expiring on March 1, 2006. In 1995, options were granted for 60,000 shares at
an exercise price of $0.6875, the then fair market value, expiring on March 1,
2005. In 1994, options were granted for 20,000 shares at an exercise price of
$1.3125, the then fair market value, expiring on March 1, 2004. No options
were exercised in 1996, 1995, and 1994. As of December 31, 1996, 130,000
options were outstanding and 80,000 options were exercisable.
Pro forma information regarding net income (loss) and earnings (loss) per
share is required by FAS 123 for fiscal years beginning after December 31,
1994, and has been determined as if the Company had accounted for its stock
options under the fair value method of FAS 123. The fair value for these
options was estimated at the date of grant using a Black-Scholes option
pricing model with the following weighted-average assumptions for 1995 and
1996: risk-free interest rates of 7.0% and 6.0%, respectively, for the March
and July 1995 grants, and 5.2% and 5.7%, respectively, for the February and
March 1996 grants; dividend yield of 0% for both years; volatility factors of
the expected market price of the Company's common stock of 0.54 and 0.53,
respectively; and a weighted-average expected life of the option of five years
for all grants.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, options valuation models require the
input of highly subjective assumptions including the expected stock price
volatility. Because the Company's stock options have characteristics
significantly different from those of traded options, and because changes in
the subjective input assumptions can materially affect the fair value
estimate, in management's opinion, the existing models do not necessarily
provide a reliable single measure of the fair value of its stock options.
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the vesting periods of the options. Pro
forma information regarding the Company's net income (loss) and earnings
(loss) per share follows:
<TABLE>
<CAPTION>
(In thousands, except for per share amounts)
__________________________________________________________________________________________
Year Ended December 31,
---------------------------
1996 1995
__________________________________________________________________________________________
<S> <C> <C>
Net (Loss) Earnings - As Reported ........................ $ (1,080) $ 898
Pro Forma Net (Loss) Earnings - FAS 123 .................. (1,133) 881
Net (Loss) Earnings per Share - As Reported .............. (0.11) 0.07
Pro Forma Net (Loss) Earnings per Share - FAS 123 ........ (0.11) 0.07
__________________________________________________________________________________________
</TABLE>
21
<PAGE>
A summary of the Company's stock option activity, and related information
follows:
<TABLE>
<CAPTION>
(In thousands, except for dollar amounts)
________________________________________________________________________________________________________
Year Ended December 31,
--------------------------------------------------------------------------
1996 1995 1994
---------------------- ---------------------- ----------------------
Weighted- Weighted- Weighted-
Average Average Average
Exercise Exercise Exercise
Options Price Options Price Options Price
________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C>
Outstanding -
Beginning of Year ........ 1,048 $ 1.20 886 $ 1.24 623 $ 1.75
Granted .................. 441 1.00 190 1.03 625 1.02
Exercised ................ -- -- -- -- -- --
Forfeited ................ (278) 1.36 (28) 1.19 (362) 1.75
---------- ---------- ---------- ---------- ---------- ----------
Outstanding -
End of Year .............. 1,211 $ 1.09 1,048 $ 1.20 886 $ 1.24
========== ========== ========== ========== ========== ==========
Exercisable at
End of Year .............. 625 $ 1.16 638 $ 1.34 426 $ 1.41
Weighted-Average
Fair Value of Options
Granted During the Year .. $ 0.52 $ 0.54 N/A
________________________________________________________________________________________________________
N/A Not applicable under FAS 123.
</TABLE>
Exercise prices for options outstanding as of December 31, 1996, ranged
from $0.6875 to $1.75. The weighted-average remaining contractual life of
those options is 6.4 years.
22
<PAGE>
NOTE 5. INCOME TAXES
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components
of the Company's deferred tax assets and liabilities as of December 31, 1996
and 1995, are as follows, using the liability method:
<TABLE>
<CAPTION>
__________________________________________________________________________________________
December 31,
---------------------------
1996 1995
__________________________________________________________________________________________
<S> <C> <C>
Current Deferred Tax Assets
Contract reserves not currently deductible ............. $ 551 $ 663
Accrued expenses not currently deductible .............. 231 246
Net operating loss carryforward ........................ 367 --
Other .................................................. 165 214
---------- ----------
Total Current Gross Deferred Tax Assets .............. 1,314 1,123
Less: Valuation Allowance ............................. (401) --
Current Deferred Tax Liabilities
Revenue differences related to timing .................. 913 1,213
---------- ----------
Net Current Deferred Tax Liabilities ................. $ -- $ 90
========== ==========
__________________________________________________________________________________________
</TABLE>
The current and deferred tax provisions for the years ended December 31,
1996 and 1995, are as follows:
<TABLE>
<CAPTION>
____________________________________________________________________________
Year Ended December 31,
---------------------------
1996 1995
____________________________________________________________________________
<S> <C> <C>
Current:
Federal .................................. $ (47) $ 202
State .................................... -- 14
---------- ----------
(47) 216
---------- ----------
Deferred:
Federal .................................. (77) 77
State .................................... (13) 13
---------- ----------
(90) 90
---------- ----------
Tax (Benefit) Provision .................. $ (137) $ 306
========== ==========
____________________________________________________________________________
</TABLE>
23
<PAGE>
A valuation allowance of $401,000 was established for the year ended
December 31, 1996, for those deferred tax assets which may not be realized.
There was no valuation allowance at December 31, 1995.
The provision (benefit) for income taxes differed from the amount computed
by applying the statutory federal income tax rate for the years ended December
31, 1996 and 1995, as follows:
<TABLE>
<CAPTION>
_____________________________________________________________________________
Year Ended December 31,
---------------------------
1996 1995
_____________________________________________________________________________
<S> <C> <C>
Federal Statutory Rate ...................... (35)% 34 %
State Taxes, Net of Federal Benefit ......... (1)% 6 %
Permanent Differences ....................... (8)% --
Valuation Allowance ......................... 33 % --
Non-Taxable Partnership Earnings ............ -- (15)%
---------- ----------
Income Tax (Benefit) Provision .............. (11)% $ 25 %
========== ==========
_____________________________________________________________________________
</TABLE>
The Company paid income taxes of $410,000 in 1996. No income taxes were
paid in 1995.
At December 31, 1996, the Company had net operating loss carryforwards of
approximately $970,000 for federal and $700,000 for state income tax purposes.
The federal net operating loss carryforwards expire in the year 2011. The
state net operating loss expires in 2001. Utilization of the Company's net
operating losses may be subject to a substantial annual limitation due to the
ownership change limitations provided by the Internal Revenue Code. The annual
limitation may result in the expiration of net operating losses before
utilization.
NOTE 6. COMMITMENTS AND CONTINGENCIES
Leases. The Company occupies facilities under noncancelable operating
leases expiring at various dates through 2000. The leases call for
proportionate increases due to property taxes and certain other expenses. Rent
expense amounted to $702,000 for the year ended December 31, 1996 ($734,000 in
1995 and $850,000 in 1994).
Minimum rental commitments under operating leases, principally for real
property, are as follows:
<TABLE>
<CAPTION>
(Year Ending December 31)
___________________________________________________________________________
<S> <C>
1997 ....................................................... $ 511,000
1998 ....................................................... 124,000
1999 ....................................................... 96,000
2000 ....................................................... 40,000
2001 and Thereafter ........................................ --
------------
Total Minimum Payments Required ............................ $ 771,000
============
___________________________________________________________________________
</TABLE>
Revolving Loan Agreement. A loan agreement with a bank provides for a
revolving line of credit of $5,000,000, through May 1998. At December 31,
1996, $4,500,000 was available under the credit line, and in addition,
$500,000 was assigned to support standby letters of credit. Amounts advanced
under the line of credit are secured by the Company's eligible accounts
receivable. Under the agreement, the Company is obligated to comply with
certain covenants related to equity, quick ratio, debt/equity ratio, and
profits. At December 31, 1996, the Company obtained a waiver from the lender
with respect to a certain financial covenant in the loan agreement concerning
tangible net worth. The waiver extends to the next review date, March 31,
1997. The
24
<PAGE>
interest rate under the agreement is the bank's prime rate (8.25% at December
31, 1996). During 1996, the Company paid no interest expense ($39,000 in 1995
and $9,000 in 1994).
Contingent Liabilities. In December 1986, the Predecessor Partnership
received a substantial portion of its Predecessor Corporation's net assets and
operations in connection with a restructuring plan approved by the
shareholders. The balance of the Predecessor Corporation's assets and
liabilities were transferred to the Trust for the benefit of the shareholders,
to facilitate the orderly sale or other disposition of the remaining assets,
and satisfaction of all remaining debts and liabilities. The Company has
assumed such contingent liabilities of the Trust to the extent they exceed the
assets of the Trust. Management believes that adequate assets exist to satisfy
all liabilities of the Trust, contingent or otherwise, not specifically
transferred to the Company.
NOTE 7. LEGAL PROCEEDINGS
PLM Financial Services, Inc. ("PLM") filed an action on November 4, 1994,
in the Superior Court of California for the County of Alameda seeking damages
in excess of $4.6 million in unpaid equipment rent and other payments
allegedly owing to PLM under an equipment lease between PLM and TERA Power
Corporation, a former subsidiary of the Predecessor Corporation. PLM has named
the Predecessor Partnership in the action pursuant to a guaranty of the lease
obligations made by the Predecessor Corporation. Management believes that the
guaranty has been exonerated and will be able to defend this action
successfully. Management does not believe that eventual resolution of this
matter will have a material effect on the Company's financial position,
however, an adverse outcome could have a material adverse impact on the
financial position, results of operations, and cash flows of the Company.
On October 13, 1995, the League for Coastal Protection ("League") filed an
action on behalf of the League and the general public against the Company,
among others, in the Superior Court of California for the County of San
Francisco. The action entitled League for Coastal Protection v. Pacific Gas &
Electric Company ("PG&E"), et al., Case No. 973182, seeks injunctive relief
and disgorgement of unspecified profits under the California Business and
Professions Code, Section 17200, et seq. The plaintiff contends that certain
studies performed by the Company and its predecessors respecting the
requirements of 316(b) of the Clean Water Act, that ultimately were submitted
by PG&E to the Regional Water Quality Control Board ("RWQCB") in 1988 in
connection with the Diablo Canyon Nuclear Power facility at Diablo Canyon,
California, were deficient in various respects, and that the Company and PG&E
covered up those deficiencies from the RWQCB and other state agencies. On
October 13, 1995, the League filed an action against the Company among others,
in the United States District Court for the Northern District of California,
entitled League for Coastal Protection v. Pacific Gas & Electric Company, et
al., Case No. C96-1393DLJ, seeking injunctive and other relief under the
United States Clean Water Act related to the same studies and reporting
described above. On February 5, 1996, John W. Carter filed an action against
the Company and others in the United States District Court for the Northern
District of California entitled United States of America, ex rel. and State of
California, ex rel., John W. Carter v. Pacific Gas & Electric Company, et al.,
Case No. C-95-2843-MHP, under the False Claims Act. This action, which is
based on the same studies and reports described above, seeks unspecified
damages and penalties. An agreement has been reached in principal for a global
settlement with the League, Carter, the California Attorney General, and the
Environmental Protection Agency. While the settlement is being documented, all
matters have been stayed, and/or held in abeyance, pending consummation of the
settlement. As a result of the settlement, all of the actions will be
dismissed. The Company is not required to make any payment or other
contribution to the settlement.
NOTE 8. SPECIAL ITEMS
There were two special items in 1996, one of which also occurred in 1994.
This item amounted to $250,000 and $500,000 in 1996 and 1994 respectively, and
reflects the estimated settlement of specific disputed costs on certain U.S.
Government contracts with the DOE. These positive earnings adjustments
resulted from partial reductions of the reserve for sales adjustment
established in 1991. The reserve related to a dispute between the Company and
the DOE with respect to the allowability and amount of potential rate
adjustments on U.S. Government contracts for certain employee compensation
costs.
25
<PAGE>
The other special item in 1996, related to the repricing of debt owed by
one of the Company's executive officers. In December 1996, certain terms of
the note related to the purchase of stock by an executive officer in 1988,
were renegotiated to provide for a purchase price adjustment on the stock
securing the note balance and a corresponding reduction in the note balance.
The remaining balance of the note was paid off, by the transfer to the Company
of the stock purchased by the executive officer in 1988, at the fair market
value of the stock. As a result, a charge of approximately $300,000 was made
in 1996 to adjust the price of the stock to the then current fair market
value.
NOTE 9. SELECTED QUARTERLY COMBINED FINANCIAL DATA (UNAUDITED)
A summary of the Company's quarterly financial results follows:
<TABLE>
<CAPTION>
(In thousands, except per share or unit amounts)
__________________________________________________________________________________________________________________________
Quarter Ended Quarter Ended
-------------------------------------- --------------------------------------
12/31/96 9/30/96 6/30/96 3/31/96 12/31/95 9/30/95 6/30/95 3/31/95
__________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue ............................... $ 5,125 $ 5,586 $ 6,036 $ 7,256 $ 7,288 $ 7,249 $ 5,664 $ 5,344
Direct Costs .......................... 3,297 3,651 3,678 4,901 4,585 5,033 3,265 3,199
General and Administrative Expenses ... 2,241 2,734 2,663 2,205 2,264 1,866 2,154 1,956
Other Income (Expenses) ............... 14 -- 17 4 (30) 1 2 7
Special Item .......................... (300) -- 250 -- -- -- -- --
-------- -------- -------- -------- -------- -------- -------- --------
Operating (Loss) Income ............... (699) (799) (38) 154 409 351 247 196
Interest Income (Expense) ............. 47 43 43 32 6 1 (6) --
-------- -------- -------- -------- -------- -------- -------- --------
Net (Loss) Earnings Before Income
Tax Benefit/Expense ................... (652) (756) 5 186 415 352 $ 241 $ 196
======== ========
Income Tax (Benefit) Expense .......... (137) (76) 2 74 165 141
-------- -------- -------- -------- -------- --------
Net (Loss) Earnings ................... $ (515) $ (680) $ 3 $ 112 $ 250 $ 211
======== ======== ======== ======== ======== ========
Net (Loss) Earnings Per Share
(Pro Forma First Half 1995) ........... $ (0.05) $ (0.07) $ 0.00 $ 0.01 $ 0.02 $ 0.02 $ 0.02 $ 0.01
======== ======== ======== ======== ======== ======== ======== ========
__________________________________________________________________________________________________________________________
</TABLE>
26
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
TENERA, Inc.
We have audited the accompanying consolidated balance sheets of TENERA,
Inc. at December 31, 1996 and 1995, and the related consolidated statements of
operations, stockholders' equity (partners' capital), and cash flows for each
of the three years in the period ended December 31, 1996. Our audits also
included the financial statement schedule listed in the Index at Item 14(a).
These financial statements and schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements and schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position
of TENERA, Inc. at December 31, 1996 and 1995, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended December 31, 1996, in conformity with generally accepted accounting
principles. Also, in our opinion, the related consolidated financial statement
schedule, when considered in relation to the basic financial statements taken
as a whole presents fairly, in all material respects, the information set
forth therein.
ERNST & YOUNG LLP
San Francisco, California
January 24, 1997
27
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
28
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following tables set forth certain information with respect to the
directors and executive officers of the Company.
The directors of the Company are as follows:
Michael D. Thomas, 48, has served as Chairman of the Board of the
Company since his election in August 1991, and was named its Chief
Executive Officer in September 1994. He was President of Teknekron
Corporation from 1991 until December 31, 1994, and was Vice President of
Marketing and Corporate Business Development for Teknekron Corporation from
1989 to 1991.
William A. Hasler, 55, has served as a Director of the Company since his
election in March 1992. Mr. Hasler is dean of the Walter A. Haas School of
Business at the University of California, Berkeley. Prior to his
appointment as dean in 1991, Mr. Hasler was Vice Chairman of Management
Consulting for KPMG Peat Marwick from 1986 to 1991. Mr. Hasler is also a
director of The Gap, Inc., ESCAgenetics Corporation, Aphton Corporation,
Walker Systems, and TCSI Corporation.
Jeffrey R. Hazarian, 41, has served as a Director of the Company since
his election in October 1996, and was named its Chief Financial Officer,
Vice President of Finance, and Corporate Secretary of the Company in 1992.
Previously, Mr. Hazarian held the position of Vice President, Planning and
Analysis of the Company from 1990 to 1992.
Thomas S. Loo, Esq., 53, was elected as a Director of the Company in
February 1997. He previously served as a Director of the Predecessor
Partnership from August 1987 to September 1993. Mr. Loo has been a partner,
since 1986, of Bryan Cave LLP, general counsel to the Company. Mr. Loo has
also served as a director of Teknekron Corporation since March 1989.
George L. Turin, Sc.D., 67, has served as a Director of the Company
since his election in March 1995. Previously, Mr. Turin served as a
Professor of Electrical Engineering and Computer Science at the University
of California at Berkeley from 1960 to 1990. Mr. Turin also served as Vice
President, Technology for Teknekron Corporation from 1988 to 1994.
Barry L. Williams, J.D., 52, has served as a Director of the Company
since his election in September 1993. Mr. Williams has been President of
Williams Pacific Venture, Inc., a venture capital consulting company, since
1987. From 1988 until its sale in 1992, Mr. Williams was also President of
C.N. Flagg Power, Inc., a company that provides construction services
primarily to the electric utility industry. Mr. Williams is also a director
of American President Companies, PG&E, and Simpson Manufacturing Co., Inc.
In addition to Messrs. Thomas and Hazarian, the executive officers of the
Company are as follows:
Raymond A. Allen III, 37, has served as Vice President of the Company
since his arrival at the Company in July 1996. Previously, Mr. Allen was
Vice President of Commercial Operations for ABB Environmental Services,
Inc. and was employed by ABB in various positions since 1984.
Robert C. McKay, 45, was elected Senior Vice President of the Company in
December 1992. Previously, Mr. McKay was a Vice President of the Company
from 1991 to 1992, and a senior technical manager of the Company from 1990
to 1991. Formerly, Mr. McKay was Manager, Management Systems for the
Tennessee Valley Authority from 1988 to 1990.
Joe C. Turnage, Ph.D., 51, has served as Senior Vice President of the
Company since his arrival at the Company in 1988.
Kenneth S. Voss, 46, has served as Vice President of Business
Development since his arrival at the Company in June 1996. Previously,
Mr. Voss was Vice President of Sales and Service at Software
29
<PAGE>
Professionals, Inc. from 1992 to 1996, and General Manager for SHL
Systemhouse, Inc. from 1981 to 1992.
Officers of the Company hold office at the pleasure of the Board of
Directors. There are no familial relationships between or among any of the
executive officers or directors of the Company.
ITEM 11. EXECUTIVE COMPENSATION
The following tables set forth certain information covering compensation
paid by TENERA to the Chief Executive Officer ("CEO") and each of the
Company's other executive officers, other than the CEO, whose total annual
salary and bonus exceeded $100,000 (the "named executives") for services to
TENERA in all their capacities during the fiscal years ended December 31,
1996, 1995, and 1994.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
____________________________________________________________________________________________________________
Long-Term Compensation
----------------------
Annual Compensation Awards Payouts
---------------------- ---------- ----------
Securities
Underlying All Other
Options/ LTIP Compensa-
Name and Principal Position Year Salary Bonus SARs(1) Payouts(2) tion(3)
____________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C>
Michael D. Thomas(4) ........ 1996 $ 220,915 -- 55,000 $ -- $ 8,602
Chief Executive Officer 1995 214,000 -- 25,000 -- 8,602
1994 -- -- 100,000 -- --
Joe C. Turnage .............. 1996 169,295 -- 45,000 -- 105,054(5)
Senior Vice President 1995 170,000 -- 20,000 55,750 8,703
1994 158,100 -- 35,000 55,751 8,452
Robert C. McKay, Jr. ........ 1996 145,390 -- 28,000 -- 9,000
Senior Vice President 1995 169,030 -- 20,000 -- 9,000
1994 135,000 -- 70,000 -- 3,531
Jeffrey R. Hazarian ......... 1996 142,500 -- 27,000 -- 8,058
Chief Financial Officer 1995 142,192 -- 13,000 -- 8,058
1994 126,046 -- 20,000 -- 7,563
____________________________________________________________________________________________________________
(1) Reflects the number of options granted under the 1992 Stock Option Plan; no SARs have been issued.
(2) These amounts reflect forgiveness of certain indebtedness pursuant to notes executed by the
individual in payment for partnership units acquired pursuant to the Entrepreneurial Equity Incentive
Plan ("EEIP"). The EEIP was discontinued in March 1992.
(3) These amounts represent the amounts accrued for the Company's Profit Sharing/401(k) Plan for 1996,
1995, and 1994, respectively, and allocated to the named executive officers.
(4) Mr. Thomas was President of Teknekron Corporation until December 31, 1994. He assumed the position of
Chief Executive Officer of the Company in September 1994, for which he received no compensation.
(5) This amount includes forgiveness of interest from the repricing of indebtedness to the Company
incurred in connection with the purchase of company stock ($96,351) (see Item 13. "Certain
Relationships and Related Transactions," and Notes 3 and 8 to Financial Statements).
</TABLE>
30
<PAGE>
The following table sets forth certain information concerning options/SARs
granted during 1996 to the named executives:
OPTIONS/SAR GRANTS IN 1996
<TABLE>
<CAPTION>
_______________________________________________________________________________________________
Potential Realizable
Value at Assumed
Annual Rates of
Stock Price
Appreciation for
Individual Grants Option Term
--------------------------------------------- --------------------
% of Total
Number of Options/
Securities SARs
Underlying Granted to Exercise
Options/ Employees or Base
SARs in Fiscal Price Expiration
Name Granted Year ($/Share) Date 5% 10%
_______________________________________________________________________________________________
<S> <C> <C> <C> <C> <C> <C>
Michael D. Thomas ..... 55,000 14.05 $ 1.00 2/1/2002 $ 18,700 $ 42,400
Joe C. Turnage ........ 45,000 11.49 1.00 2/1/2002 15,300 34,700
Robert C. McKay, Jr. .. 28,000 7.20 1.00 2/1/2002 9,500 21,600
Jeffrey R. Hazarian ... 27,000 6.90 1.00 2/1/2002 9,200 20,800
_______________________________________________________________________________________________
N/A Not applicable.
</TABLE>
OTHER COMPENSATION ARRANGEMENTS
Joe C. Turnage, Senior Vice President, executed an employment agreement
upon joining the Company in 1988. The employment agreement provided for
purchases of limited partnership units of the Predecessor Partnership by Mr.
Turnage at the fair market value upon the date of issuance, dependent upon
meeting various objectives set forth in the agreement. Pursuant to the
Agreement and the EEIP, Mr. Turnage purchased an aggregate of 289,371 limited
partnership units, the purchase price of which was payable by notes, which
notes were to be forgiven over specified periods, provided Mr. Turnage
remained in the employ of the Company. In late 1991, the terms of the EEIP
awards made to Mr. Turnage and others with similar arrangements, were modified
and the period over which the remaining balance of the notes was extended and
the conditions for future forgiveness modified. In 1996, these notes were
repriced to the then current fair market value of the stock held as security,
resulting in a special item charge (see Item 13. "Certain Relationships and
Related Transactions"). The amount of indebtedness forgiven is included in the
Summary Compensation Table under the captions "LTIP Payouts." Mr. Turnage's
employment may be terminated at any time by the Company under the terms of the
employment agreement.
The 1992 Stock Option Plan provides that options may become exercisable
over such periods as provided in the agreement evidencing the option award.
Options granted to date, including options granted to executive officers and
set forth in the above tables, generally call for vesting over a four-year
period. The 1992 Stock Option Plan provides that a change in control of the
Company will result in immediate vesting of all options granted and not
previously vested.
DIRECTORS COMPENSATION
Except as described below, the directors of the Company are paid no
compensation by the Company for their services as directors. Thomas S. Loo,
William A. Hasler, George L. Turin, and Barry L. Williams as non-employee
directors, are paid a retainer of $1,000 per month. These non-employee
directors are also paid a fee of $1,000 for each meeting of the Board and any
Board Committee which they attend. The 1993 Outside Directors Compensation and
Stock Option Plan was approved by the Board effective March 1, 1994, which
provides for the annual issuance of options for non-employee directors. During
1994, 10,000 stock options were issued to each of Messrs. Hasler and Williams.
During 1996 and 1995, 12,500 and 15,000 stock options, respectively, were
issued to each of Ms. Cheng (resigned in February 1997) and Messrs. Hasler,
Turin, and Williams. The
31
<PAGE>
options expire ten (10) years after, vest one (1) year after the date of
grant, and have an exercise price equal to the fair market value of the shares
of Common Stock on the date of grant. Upon exercise of the options, a director
may not sell or otherwise transfer more than 50% of the shares until six (6)
months after the date on which the director ceases to be a director of the
Company.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During 1996, the Compensation Committee was composed of Susan T. Cheng,
William A. Hasler, and Barry L. Williams. Susan T. Cheng was Treasurer and
Vice President of Teknekron Corporation until February 1, 1997. (See Item 13.
"Certain Relationships and Related Transactions")
EFFECT OF MERGER ON OPTION PLANS
In connection with the Conversion, the Company amended the Predecessor
Partnership's 1992 Unit Option Plan and 1993 Outside Director Compensation and
Unit Option Plan to reflect the fact that options now relate to shares of
Common Stock instead of Units. Except for the changes from Units to Common
Stock and minor conforming changes, the amended 1992 Stock Option Plan and the
1993 Outside Director Compensation and Stock Option Plan are identical to the
previous plans and all outstanding options for Units were automatically
converted to options for Common Stock at the original exercise price and on
the same terms and conditions as the original Unit options.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
(a) SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth certain information as of March 17, 1997,
with respect to beneficial ownership of the shares of Common Stock of the
Company by each person who is known by the Company to own beneficially more
than 5% of the shares of Common Stock:
<TABLE>
<CAPTION>
_____________________________________________________________________________
Approximate
Shares Percent
Beneficially Beneficially
Name and Address Owned Owned
_____________________________________________________________________________
<S> <C> <C>
Harvey E. Wagner ............................... 3,708,658 36.6%(1)
P.O. Box 7463
Incline Village, NV 89450
Dr. Michael John Keaton Trust .................. 1,106,887 10.9%(2)
P.O. Box 400
Orinda, CA 94563-0400
_____________________________________________________________________________
(1) Such shares are held of record by Incline Village Investment Group
Limited Partnership, a Georgia limited partnership, and were
contributed to the Incline Village Investment Group Limited
Partnership by Mr. Wagner in exchange for a 99% limited partnership
interest. An additional 37,462 shares, as to which Mr. Wagner
disclaims beneficial ownership, were contributed to the Incline
Village Investment Group Limited Partnership by Mr. Wagner's spouse,
Leslie Wagner, in exchange for a 1% general partner interest. The
Incline Village Investment Group Limited Partnership has sole voting
and investment power with respect to all such shares.
(2) Mr. Keaton has sole voting and investment power with respect to all
shares shown as beneficially owned by him, subject to community
property laws where applicable.
</TABLE>
32
<PAGE>
(b) SECURITY OWNERSHIP OF MANAGEMENT
The following table sets forth information as of March 17, 1997, with
respect to current beneficial ownership of shares of Common Stock by (i) each
of the directors of the Company, (ii) each of the named executive officers
(see Item 11. "Executive Compensation"), and (iii) all current directors and
executive officers as a group.
<TABLE>
<CAPTION>
_____________________________________________________________________________
Shares
Beneficially Percentage
Name Owned(1) Ownership(2)
_____________________________________________________________________________
<S> <C> <C>
William A. Hasler .............................. 57,500(3) *
Jeffrey R. Hazarian ............................ 52,186(4) *
Thomas S. Loo .................................. 0 0
Robert C. McKay, Jr. ........................... 97,539(4) 1.0%
Michael D. Thomas .............................. 116,400(4) 1.1%
George L. Turin ................................ 73,004(3) *
Joe C. Turnage ................................. 85,737(4) *
Barry L. Williams .............................. 37,500(3) *
------------ ------------
All Current Directors and Executive Officers
as a Group (10 persons) ........................ 519,866(3)(4) 5.1%
_____________________________________________________________________________
(1) The persons named above have sole voting and investment power with
respect to all shares of Common Stock shown as beneficially owned by
them, subject to community property laws where applicable.
(2) Asterisks represent less than 1% ownership.
(3) Includes options under the Company's 1993 Outside Directors
Compensation and Stock Option Plan which are exercisable on March 17,
1997, or within 60 days thereafter.
(4) Includes options under the Company's 1992 Stock Option Plan which are
exercisable on March 17, 1997, or within 60 days thereafter.
</TABLE>
Beneficial ownership as shown in the tables above has been determined in
accordance with Rule 13d-3 under the Exchange Act. Under this Rule, certain
securities may be deemed to be beneficially owned by more than one person
(such as where persons share voting power or investment power). In addition,
securities are deemed to be beneficially owned by a person if the person has
the right to acquire the securities (for example, upon exercise of an option
or the conversion of a debenture) within 60 days of the date as of which the
information is provided; in computing the percentage of ownership of any
person, the amount of securities outstanding is deemed to include the amount
of securities beneficially owned by such person (and only such person) by
reason of these acquisition rights. As a result, the percentage of outstanding
Units of any person as shown in the preceding tables do not necessarily
reflect the person's actual voting power at any particular date.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Certain members of management or shareholders of the Company have certain
direct or indirect interests in certain transactions involving the Company,
separate from their interests as shareholders, as follows:
(i) The Company had made certain loans to various employees, including
officers, generally pursuant to employee benefit plan(s) and generally in
connection with the purchase of stock or units. In making loans to
officers, the Company held the stock as collateral securing the repayment
for such loans. In December 1996, certain terms of the note related to the
purchase of stock by an executive officer (Mr. Turnage) in 1988 were
renegotiated to provide for a purchase price adjustment on the stock
securing the note balance and a corresponding reduction in the note
balance. The remaining balance of the note was
33
<PAGE>
paid off by the transfer to the Company of the stock purchased by
Mr. Turnage in 1988 at the fair market value of the stock as reported on
AMEX at the date of the transfer. As a result, a charge of approximately
$300,000 was made in 1996 to adjust the price of the stock to the then
current fair market value. As of December 31, 1996, the Company had no
notes receivables from its executive officers. The largest amount
outstanding during 1996 was $347,639.
(ii) Susan T. Cheng, a director of the Company until her resignation in
February 1997, was Treasurer and Vice President of Teknekron Corporation
until February 1, 1997. Mr. Wagner, the Company's largest stockholder, is
the sole stockholder and a director of Teknekron Corporation.
(iii) Thomas S. Loo, a director of the Company since February 7, 1997,
is a partner in the law firm of Bryan Cave LLP, general counsel to the
Company and Teknekron Corporation, and is a director of Teknekron
Corporation.
34
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8K
(a)(1) FINANCIAL STATEMENTS
The following financial statements of the Company are filed with this
report and can be found in Part II, Item 8, on the pages indicated below:
<TABLE>
<CAPTION>
PAGE
<S> <C>
Consolidated Statements of Operations - Year Ended December 31,
1996, 1995, and 1994 ............................................ 14
Consolidated Balance Sheets - December 31, 1996 and 1995 ........ 15
Consolidated Statements of Shareholders' Equity (Partners'
Capital) - Year Ended December 31, 1996, 1995, and 1994 ......... 16
Consolidated Statements of Cash Flows - Year Ended December 31,
1996, 1995, and 1994 ............................................ 17
Notes to Consolidated Financial Statements ...................... 18
Report of Independent Auditors .................................. 27
(a)(2) FINANCIAL STATEMENT SCHEDULES
The following financial statement schedules with respect to the
Company are filed in this report:
Schedule VIII - Valuation and Qualifying Accounts and Reserves .. 37
All other schedules are omitted because they are either not
required or not applicable.
</TABLE>
(a)(3) EXHIBITS
2.1 Agreement and Plan of Merger dated as of June 6, 1995 among the
Registrant, Teknekron Technology MLP I Corporation, TENERA, L.P.,
and TENERA Operating Company, L.P. (a form of which is attached as
Annex A to the Registrant's Consent Solicitation
Statement/Prospectus included in the Registration Statement on
Form S-4 (Registration No. 33-58393) declared effective by the
Securities and Exchange Commission on June 2, 1995 (the
"Registration Statement"), and is incorporated herein by this
reference).
3.1 Certificate of Incorporation of the Registrant dated October 27,
1994 (filed by incorporation by reference to Exhibit 3.3 to the
Registration Statement).
3.2 By-Laws of the Registrant (filed by incorporation by reference to
Exhibit 3.4 to the Registration Statement).
4.1 Form of Certificate of Common Stock of Registrant (filed by
incorporation by reference to Exhibit 4.5 to the Registration
Statement).
10.2 Registrant's lease on its Rockville, Maryland properties (filed as
Exhibit 10.2 to the Predecessor Partnership's Form 10-K filed with
the SEC on March 29, 1995, and incorporated by reference herein).
10.3 Registrants' lease on its Knoxville, Tennessee properties (filed as
Exhibit 10.4 to Form 10-K filed with the SEC on March 25, 1994,
and incorporated by reference herein).
10.4 Registrant's lease on its headquarters located in San Francisco,
California (filed as Exhibit 10.12 to Form 10-Q filed with the
SEC on November 14, 1995, and incorporated by reference herein).
35
<PAGE>
10.5(1) Registrant's lease on its Hartford, Connecticut properties.
11.1 Statement regarding computation of per share earnings: See "Notes
to Consolidated Financial Statements."
21.2 List of Subsidiaries of the Registrant (filed as Exhibit 21.2 to
Form 10-K filed with the SEC on March 27, 1996, and incorporated
by reference herein).
23.1(1) Consent of Independent Auditors.
27.1(1) Financial Data Schedule.
(b) REPORTS ON FORM 8-K
No reports on Form 8-K were filed by the Registrant during the last quarter
of 1996.
(c) EXHIBITS (SEE ITEM 14(a)(3) ABOVE.)
(d) FINANCIAL STATEMENT SCHEDULES
The schedules listed in Item 14(a)(2) above should be used in conjunction
with the Consolidated Financial Statements of the Company for the year ended
December 31, 1996.
- ------------------------------
(1) Filed herewith.
36
<PAGE>
SCHEDULE VIII
TENERA, INC.
VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
<TABLE>
<CAPTION>
(In thousands)
______________________________________________________________________________________________________
Additions Deductions
----------- ------------------------
Balance Charged to Credited to Balance
Beginning Costs and Special at End
Description of Year Expenses Item Other of Year
______________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C>
1994
Reserve for Sales Adjustment
and Credit Losses ............ $ 3,717 $ 271 $ 500 $ 591 $ 2,897
1995
Reserve for Sales Adjustment
and Credit Losses ............ 2,897 131 -- 140 2,888
1996
Reserve for Sales Adjustment
and Credit Losses ............ 2,888 289 250 1,301 1,626
______________________________________________________________________________________________________
</TABLE>
37
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED.
Dated: March 27, 1997
TENERA, INC.
By: /s/ JEFFREY R. HAZARIAN
--------------------------------------
Jeffrey R. Hazarian
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
REPORT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF THE
REGISTRANT AND IN THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
Chairman of the Board and
Chief Executive Officer
/s/ MICHAEL D. THOMAS (Principal Executive Officer) March 27, 1997
- ---------------------------
(Michael D. Thomas)
/s/ WILLIAM A. HASLER Director March 27, 1997
- ---------------------------
(William A. Hasler)
Director,
Chief Financial Officer,
Corporate Secretary, and
Vice President, Finance
(Principal Financial and
/s/ JEFFREY R. HAZARIAN Accounting Officer) March 27, 1997
- ---------------------------
(Jeffrey R. Hazarian)
/s/ THOMAS S. LOO Director March 27, 1997
- ---------------------------
(Thomas S. Loo)
/s/ GEORGE L. TURIN Director March 27, 1997
- ---------------------------
(George L. Turin)
/s/ BARRY L. WILLIAMS Director March 27, 1997
- ---------------------------
(Barry L. Williams)
38
<PAGE>
EXHIBIT INDEX
Ex. 10.5 Registrant's Lease on its Hartford, Connecticut Properties
Ex. 23.1 Consent of Independent Auditors
Ex. 27.1 Financial Data Schedule
<PAGE>
******************************************************************************
AGREEMENT OF LEASE
Between
GOODWIN SQUARE LLC
as Landlord
and
TENERA, INC.
as Tenant
Dated as of November 18, 1996
Goodwin Square
Hartford, Connecticut
06103
******************************************************************************
<PAGE>
LEASE
AGREEMENT OF LEASE made as of the date hereinafter set forth is by and
between GOODWIN SQUARE LLC, a Connecticut limited partnership, having an
office at 555 Long Wharf Drive, New Haven, Connecticut ("LANDLORD") and the
tenant named below ("TENANT").
ARTICLE ONE
PREMISES AND TERM
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
for the Term as defined below, the Premises together with the right to use, in
common with others, all Common Elements of the Building, subject to the
provisions of this Lease hereinafter set forth.
TO HAVE AND TO HOLD unto Tenant, for the Lease Term commencing on the
Commencement Date and ending, unless sooner terminated, on the Expiration
Date.
YIELDING AND PAYING the Rent subject to all the terms, covenants and
conditions hereinbefore and hereinafter set forth.
ARTICLE TWO
BASIC TERMS AND DEFINITIONS
SECTION 2.01 BASIC TERMS. The following terms shall have the meanings
ascribed to them below except where the context otherwise requires:
(a) "ADDRESS OF LANDLORD" is c/o Fusco Management Company, LLC., 555
Long Wharf Drive, New Haven, Connecticut 06511.
(b) "ADDRESS OF TENANT" is One Market Spear Tower, Suite 1850, San
Francisco, California 94105-1018, if prior to the Commencement Date and
Goodwin Square, 225 Asylum Street, Hartford, Connecticut 06103, if after the
Commencement Date.
(c) "BASE RENT" shall be for each Lease Year an amount equal to the
Gross Rentable Area of the Premises multiplied by the rental rate per square
foot of Gross Rentable Area as follows:
PERIOD | RATE/S.F. | MONTHLY | YEARLY RATE
-----------------|-----------------|------------------|-------------------
Entire Term | $18.00 | $7,977.00 | $95,724.00
(d) "BROKER" shall be Cushman & Wakefield of Connecticut, Inc. and
McCarthy O'Callaghan and Co., Inc.
(e) "COMMENCEMENT DATE" shall be December 1, 1996.
<PAGE>
-2-
(f) "EXPIRATION DATE" shall mean (unless this Lease expires or is
terminated pursuant to the terms of this Lease or by law at any earlier date),
the last day of the calendar month which immediately precedes the forty-third
(43rd) month after the Commencement Date, or May 31, 2000.
(g) "LANDLORD" is Goodwin Square LLC.
(h) "LEASE TERM" or "TERM" shall mean the period from the
Commencement Date to the Expiration Date. The Term may be composed of the
initial period of this Lease (the "INITIAL TERM") and may include any Renewal
Term, if applicable ("RENEWAL TERM").
(i) "PARKING SPACES" shall mean one parking space within the
Building's "GARAGE SPACE," as such term is defined in Section 2.02 below, for
each full 1,000 square feet of Gross Rentable Area in the Premises (i.e., five
spaces for the initial Gross Rentable Area). Parking Spaces will be provided
on an unreserved basis at the current monthly market rental rates for parking
spaces in such parking facilities, which rates may change from time to time.
(j) "PERMITTED USE" shall mean use of the Premises as commercial
office space for the conduct of Tenant's business.
(k) "PREMISES" shall mean the commercial office space located on the
15th floor of the Building and deemed to contain 5,318 square feet of Gross
Rentable Area and shown without cross-hatching on the space plan attached
hereto and incorporated by reference as EXHIBIT A.
(l) "SECURITY DEPOSIT" shall have the meaning ascribed to it in
Section 2.5.
(m) "TENANT" is Tenera, Inc., a corporation organized under the laws
of the State of Delaware.
(n) "TENANT OCCUPANCY RELATED OPERATING EXPENSES" shall mean the
items of Operating Expenses listed in subparagraphs (iii), (vi), (viii) and
(xii) of Section 5.03.
(o) "TENANT'S PROPORTIONATE SHARE" shall be that fraction, the
numerator of which is the Gross Rentable Area of the Premises (which is 5,318
s.f. as of the date hereof), as such may be increased by Tenant's lease of
additional space, and the denominator of which is (i) with respect to Tenant
Occupancy Related Operating Expenses, the Gross Rentable Area in the Building
then occupied and (ii) with respect to all other Operating Expenses, the
greater of (a) the gross rentable square feet in the Building then occupied
and (b) ninety-five percent (95%) of the total gross rentable square feet of
floor space in Landlord's Building, which for purposes hereof is deemed to be
331,738. Tenant's Proportionate Share is subject to adjustment as set forth
in Section 2.02(h).
<PAGE>
-3-
SECTION 2.02 DEFINITIONS. The following additional terms shall have the
meanings ascribed to them below:
(a) "ADDITIONAL RENT" shall mean the amounts due and payable to
Landlord as provided in Section 5.02, together with any other amounts under
this Lease described as Additional Rent, which amounts shall be due and
payable to Landlord upon demand, unless otherwise provided.
(b) "AFTER HOURS" shall mean any periods of time not within Business
Hours of Business Days.
(c) "BUILDING" shall mean the thirty (30) story, mixed-use
office/hotel/retail building containing approximately 331,738 square feet of
Gross Rentable Area built upon a parcel of land located in the block bounded
by Pearl Street, Ann Street, Asylum Street and Haynes Street, all in the City
of Hartford and State of Connecticut.
(d) "BUSINESS DAYS" shall mean Monday through Saturday of each
calendar week exclusive of the following holidays: New Year's Day; Memorial
Day; Independence Day; Labor Day; Thanksgiving Day; Christmas Day.
(e) "BUSINESS HOURS" shall mean 8:00 a.m. to 6:00 p.m. of each
Business Day and 7:00 a.m. to 1:00 p.m. on Saturdays.
(f) "COMMON ELEMENTS" shall mean the atriums, hallways, corridors,
washrooms, lobbies, sidewalks, plazas, stairways, elevators and other public
portions of the Building.
(g) "EVENT OF DEFAULT" shall have the meaning ascribed to it in
Section 17.01.
(h) "FULLY OCCUPIED" shall mean the Building has been leased at the
Minimum Percentage Level; provided, if more of the Building's Gross Rentable
Area has been leased, the actual larger percentage will represent "Fully
Occupied."
(i) "GARAGE SPACE" shall mean the parking area containing a total of
302 covered parking spaces located within the Building.
(j) "GOVERNMENTAL AUTHORITY" shall mean the government of the United
States, the State of Connecticut, the Town in which the Premises are located
and any other governmental entity exercising authority or jurisdiction over
the Building or the Premises.
(k) "GROSS RENTABLE AREA" shall have the meaning ascribed to it in
Section 2.03.
(l) "IMPOSITIONS" shall have the meaning ascribed to it in Section
5.04.
(m) "LAND" shall mean that piece or parcel of real property described
in EXHIBIT B attached hereto.
<PAGE>
-4-
(n) "LEASE" shall mean this instrument.
(o) "LEASE YEAR" shall mean the period commencing on the Commencement
Date and ending on the last day of the calendar month in which occurs the
first anniversary of the Commencement Date; and each succeeding twelve (12)
month period thereafter.
(p) "MINIMUM PERCENTAGE LEVEL" shall mean that 95% of the Gross
Rentable Area of the Building is leased.
(q) "OPERATING EXPENSES" shall have the meaning ascribed to it in
Section 5.03.
(r) "OPERATING STATEMENT" shall have the meaning ascribed to it in
Section 5.05.
(s) "OPERATING YEAR" shall be the calendar year.
(t) "RENT" shall mean the sum of Base Rent and Additional Rent as
provided herein.
(u) "RULES AND REGULATIONS" shall mean those Rules and Regulations
attached as EXHIBIT D as Landlord may hereafter at any time, and from time to
time, promulgate and provide written notice thereof to Tenant, which, in
Landlord's sole discretion, shall be necessary or desirable for: (i) the
reputation, safety, care or appearance of the Building, (ii) the preservation
of good order therein, (iii) the operation or maintenance of the Building, or
the equipment contained therein or (iv) the comfort of tenants or other
occupants in the Building.
(v) "SUPERIOR LEASE" and "SUPERIOR MORTGAGE" shall have the meanings
ascribed to them in Section 22.01.
(w) "SUPERIOR LESSOR" and "SUPERIOR MORTGAGEE" shall have the
meanings ascribed to them in Section 22.01.
(x) "TENANT IMPROVEMENTS" shall have the meaning ascribed to it in
Article Nine (and may refer to the original Tenant Improvements to be
constructed as part of Landlord's Work or other improvements constructed by
Tenant pursuant to the provisions of Section 9.02, if any).
(y) "TENANT'S PROPERTY" shall have the meaning ascribed to it in
Section 14.01.
SECTION 2.03 CALCULATION OF GROSS RENTABLE AREA. The calculation of
Gross Rentable Area ("GRA") for the Premises is based upon the actual
dimensions of the Premises in accordance with the current standards
consistently applied within the Building for similar space.
SECTION 2.04 RIGHT OF FIRST OFFER. Provided that Tenant is then not in
default hereunder and is then occupying space in the Building under this
Lease, if at any time during the Term Landlord has made or intends to make a
proposal to lease any space on the 15th floor of the Building which is
contiguous to the Premises (the "EXPANSION SPACE"), Landlord will notify
<PAGE>
-5-
Tenant in writing of such fact (the "LANDLORD NOTIFICATION"), and Tenant shall
have the right (the "RIGHT OF FIRST OFFER"), subject to any then existing
rights of other tenants (regardless of when granted), to be exercised in
writing to Landlord (the "TENANT RESPONSE") within 15 days after receiving
such notification from Landlord (the "NOTIFICATION PERIOD"), to lease all, but
not part, of the Expansion Space, to be leased by Tenant from the date that
Landlord and Tenant shall have executed a definitive agreement with respect
thereto (which shall in no event be more than 30 days from the date of the
Tenant Response) to the last day of the Term, as the same may have been
extended. If Tenant chooses not to exercise the Right of First Offer, then
upon the expiration of the Notification Period, Landlord shall have the right
to lease the Expansion Space to any party and on any terms.
If Tenant leases the Expansion Space pursuant to this section, such space
shall be leased upon all the covenants, agreements, terms, provisions and
conditions set forth in this Lease (except for such covenants, agreements,
terms, provisions and conditions of this Lease as shall be clearly
inapplicable or irrelevant).
ARTICLE THREE
COMMENCEMENT OF LEASE TERM
SECTION 3.01 COMMENCEMENT. The Term shall commence on the Commencement
Date and shall expire and come to a complete end on the Expiration Date as
those dates are more particularly set forth in Section 2.01.
SECTION 3.02 DELAY. Notwithstanding anything contained in Section 3.01
to the contrary, if Landlord shall be unable to deliver possession of the
Premises on the Commencement Date by reason of the fact that the Premises are
not ready for occupancy, or for any other reason, Landlord shall not be
subject to any liability for its failure to deliver possession on the
Commencement Date. If repairs, improvements or decorations of the Premises
are to be made by Landlord and are not completed on or before the Commencement
Date, Landlord shall not be subject to any liability for any delay in such
completion. No such failure to deliver possession on the Commencement Date or
failure to complete the Premises on the Commencement Date shall affect the
validity of this Lease or the obligations of Tenant hereunder.
Notwithstanding anything herein to the contrary, in no event shall Tenant be
required to pay Rent prior to the date that the Premises are ready for
occupancy.
SECTION 3.03 RENEWAL TERM. Provided Tenant shall not then be in default
under the terms of this Lease, Tenant shall have the right to extend the Term
of this Lease for one additional period of three (3) years (the "RENEWAL
TERM"). Any such exercise must be made by Tenant giving written notice
thereof to Landlord not less than nine months prior to the expiration of the
original Term. This Lease shall be extended for the Renewal Term upon all the
covenants, agreements, terms, provisions and conditions set forth in this
Lease (except for such covenants, agreements, terms, provisions and conditions
of this Lease as shall be clearly inapplicable or irrelevant or as provided
below). During the Renewal Term, the Base Rent for the Premises shall be
equal to the fair rental value for the Premises during the Renewal Term, after
giving consideration to Tenant's size and credit rating, but in no event less
than the rent payable
<PAGE>
-6-
hereunder on the last day of the original Term. For purposes of the
foregoing, "fair rental value" shall be the value agreed upon by Landlord and
Tenant, which agreement shall be in writing, by letter or otherwise, signed by
both parties at least six (6) months in advance of commencement of the Renewal
Term. If the parties fail to agree upon the fair rental value by such time,
the matter shall be submitted for the written appraisal of a licensed real
estate appraiser, as selected and agreed upon by the parties. In the event
the parties fail to agree upon a real estate appraiser, Landlord shall select
an independent real estate appraiser of its choice, Tenant shall select an
independent real estate appraiser of its choice and, if the two appraisers
cannot agree upon an appraisal, the two appraisers so selected shall select a
third independent real estate appraiser. All such real estate appraisers
shall have an M.A.I. designation. The appraisers selected shall, by a
majority vote, determine the fair rental value for Base Rent purposes. The
rental value as determined shall be binding on the parties hereto. Any such
appraisal shall be completed and fair rental value set at least four (4)
months prior to commencement of the Renewal Term.
ARTICLE FOUR
USE
SECTION 4.01 PERMITTED USE. Tenant shall use and occupy the Premises
only for its Permitted Use. Tenant shall not violate the Rules and
Regulations set forth in EXHIBIT D annexed hereto.
SECTION 4.02 GOVERNMENTAL MATTERS. If any governmental license or
permit, other than a certificate of occupancy shall be required for the proper
and lawful conduct of Tenant's business in the Premises or any part thereof,
Tenant, at its expense, shall duly procure and thereafter maintain such
license or permit and submit the same to Landlord for inspection. Tenant
shall at all times comply with the terms and conditions of each such license
and permit.
SECTION 4.03 TENANT'S RESPONSIBILITY. Tenant shall not at any time use
or occupy, or suffer or permit anyone to use or occupy, the Premises, or do or
permit anything to be done in the Premises, in any manner (a) which violates
the certificate of occupancy for the Premises or for the Building; (b) which
causes or is liable to cause injury to the Building or any equipment,
facilities or systems therein; (c) which constitutes a violation of any
applicable laws and requirements of any Governmental Authority or the
requirements of insurance bodies; (d) which impairs or tends to impair the
character, reputation or appearance of the Building as a first-class office
building; (e) which impairs or tends to impair the proper and economic
maintenance, operation and repair of the Building and/or its equipment,
facilities or systems; or (f) which annoys or inconveniences or tends to annoy
or inconvenience other tenants or occupants of the Building.
SECTION 4.04 LOAD. Tenant shall not place a load upon any floor of the
Premises which exceeds the live load per square foot which such floor was
designed to carry and which is allowed by law. The permitted live load per
square foot of Gross Rentable Area is 100 lbs.
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SECTION 4.05 NOISE OR VIBRATION. Business machines and mechanical
equipment belonging to Tenant which cause noise or vibration that may be
transmitted to the structure of the Building or to the Premises to such a
degree as to be objectionable to Landlord shall be placed and maintained by
the party owning the machines or equipment at such party's expense, in such a
manner as to eliminate noise or vibration. In the event of any violation,
Tenant shall be obligated to make such repairs to the Premises and Building
resulting therefrom and to take all steps reasonably necessary to eliminate
such noise or vibration.
SECTION 4.06 ACCESS TO PREMISES. Tenant shall have unrestricted access
to the Premises via the first floor atrium. Landlord shall keep the atrium
free from unreasonable obstructions; provided however, that the atrium may be
used for receptions and similar events, which Landlord agrees shall not
unreasonably interfere with Tenant's access to the Premises through the
atrium.
ARTICLE FIVE
RENT
SECTION 5.01 BASE RENT. Commencing sixty days following the
Commencement Date and continuing throughout the Lease Term, Tenant covenants
and agrees to pay to Landlord a Base Rent at the annual rate set forth in
Section 2.01, payable in equal monthly installments in advance as provided in
Section 2.01 which shall be due and payable on the first day of each calendar
month during the Lease Term at the office of Landlord set forth herein or at
such other place as Landlord may designate without any set-off or deduction
whatsoever except as shall be expressly provided herein to the contrary. In
the event that such date for commencement of rent shall be a date other than
the first day of a calendar month, Tenant shall pay to Landlord on the such
date an amount equal to such proportion of an equal monthly installment of
Base Rent as the number of days from and including said date bears to the
total number of days in said calendar month, and said payment shall represent
pro rata Base Rent to the end of such calendar month.
SECTION 5.02 OPERATING EXPENSES AS ADDITIONAL RENT. Commencing January
1, 1998, Tenant shall pay, as Additional Rent, with each installment of Base
Rent, one twelfth (1/12) of Tenant's Proportionate Share of the Escalation
Amount of the Building's Operating Expenses for each Operating Year. For
purposes hereof, "ESCALATION AMOUNT" in any Lease Year during the Term
(including any Renewal Term) means the amount by which Operating Expenses of
the Building for such Operating Year exceed the Operating Expenses of the
Building for the Operating Year from January 1, 1997 through December 31,
1997. Such payment will be based upon Landlord's estimate of the Building's
Operating Expenses for each Operating Year, which estimate will be based upon
Landlord's reasonable projection of the cost of Operating Expenses for the
period in question. Payments due hereunder may be subject to adjustments as
provided in Section 5.05.
SECTION 5.03 OPERATING EXPENSES. For purposes of this Article, the term
"OPERATING EXPENSES" shall mean the sum of (a) Impositions (as defined in
Section 5.04 below) and (b) all expenses paid or incurred by Landlord or on
Landlord's behalf in respect of the repair, maintenance and operation of the
Building, the Land and the curbs, sidewalks and atriums
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adjoining the same, including, without limitation (i) salaries, wages,
medical, surgical, union and general welfare benefits (including, without
limitation, group life insurance) and pension payments of employees of
Landlord engaged in the repair, operation and maintenance of the Building;
(ii) payroll taxes, workmen's compensation, uniforms and related expenses for
employees; (iii) the cost of all charges for gas, steam, electricity
(determined as if Tenant's Proportionate Share of the Building's electrical
service was separately metered to Tenant with respect to the Premises at the
electrical utility's current rates for such service), any alternate source of
energy, heat, ventilation, air-conditioning, water and other utilities
furnished to the Building (including, without limitation, the Common
Elements), together with any taxes on such utilities; (iv) the cost of
painting; (v) the cost of all charges for rent, casualty, liability and
fidelity insurance with regard to the Building and the maintenance and/or
operation thereof; (vi) the cost of the purchase or rental of all supplies
(including, without limitation, cleaning supplies), tools, materials and
equipment, and sales and other taxes thereon; (vii) depreciation of hand tools
and other movable equipment used in the repair, maintenance or operation of
the Building; (viii) the cost of all charges for window and other cleaning and
janitorial and security services, plant and landscaping service, plantings and
replantings, elevator maintenance and repair, ice and snow removal and trash
removal; (ix) charges of independent contractors; (x) repairs and replacements
made by Landlord at its expense; (xi) alterations and improvements to the
Building made by reason of the laws and requirements of any public authorities
or the requirements of insurance bodies; (xii) a management fee equal to the
greater of five (5%) percent of the gross income derived from the Building or
the amount which is not in excess of the then prevailing rates for management
fees of other first class office buildings in the City of Hartford,
Connecticut; (xiii) that portion of the cost of any capital expenditures for
repair or replacement of any Building element (which expenses are not
chargeable to Operating Expenses under any other clause of this Section and
which would be capitalized under Landlord's method of accounting) allocated to
that Operating Year by dividing the amount of the expenditure by the useful
life (as reasonable estimated by Landlord) of such capital expenditure; (xiv)
reasonable legal, accounting and other professional fees incurred in
connection with the operation, maintenance and management of the Building, and
(xv) all other charges properly allocable to the repair, operation and
maintenance of the Building in accordance with generally accepted accounting
principles; EXCLUDING, HOWEVER, (1) an allowance for depreciation on the
Building, (2) interest on and amortization of debts, (3) leasehold
improvements, (4) brokerage commissions and advertising expenses for procuring
new tenants of the Building, (5) refinancing costs, (6) the cost of any item
included in Operating Expenses under clauses (i)-(xv) to the extent that such
cost is reimbursed by an insurance company, a condemning authority, a tenant
or any other party, but if at the time Operating Expenses are determined for
an Operating Year such reimbursement has not been made, such cost may be
included in Operating Expenses and an adjustment shall be made when and if
such reimbursement is actually received by Landlord.
SECTION 5.04 IMPOSITIONS. As utilized herein "IMPOSITIONS" shall mean
all taxes (including personal property taxes, if any) assessments, water and
sewer rents, rates and charges, charges for public utilities, excises, levies,
license and permit fees and other governmental charges, general and special,
ordinary and extraordinary, foreseen and unforeseen, of any kind and nature
whatsoever which at any time during the Term hereof may be assessed, levied,
confirmed, imposed upon, or become due and payable out of or in respect of, or
become a lien
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on, the Land or Building or any part thereof or any appurtenances thereto, any
use or occupation of the Land or Building (including sales taxes on lease
payments) or such franchises as may be appurtenant to the use of the Land or
Building; provided, however, that, nothing herein contained shall require
Tenant to pay municipal, state or federal income taxes assessed against
Landlord, municipal, state or federal capital levy, estate, succession,
inheritance or transfer taxes of Landlord, or corporation franchise taxes
imposed upon any corporate owner of the Land; provided further, however, that
if at any time during the Term the methods of taxation prevailing at the
execution date of this Lease shall be altered so as to cause the whole or any
part of the taxes, assessments, or other Impositions or charges now levied,
assessed or imposed on the Land and the Building thereon, in lieu thereof, to
be levied, assessed and imposed, wholly or partially as a capital levy, or
otherwise, on the rents received therefrom, or if any such tax, assessment,
levy (including but not limited to any municipal, county, state or federal
levy), Imposition or charge, or any part thereof, shall be measured by or be
based in whole or in part upon the Land and Building and shall be imposed upon
Landlord in lieu of the methods of taxation prevailing at the date of the
execution of this Lease, then all such taxes, assessments, levies, Impositions
or charges, or the part thereof to the extent that they are so measured or
based, shall be deemed to be included within the term Impositions for the
purposes hereof.
SECTION 5.05 OPERATING STATEMENT. Within one hundred twenty (120) days
after the expiration of each Operating Year, Landlord shall furnish to Tenant
for such Operating Year an Operating Statement setting forth Landlord's
computation of the sum payable by Tenant under Section 5.02 for a specified
Operating Year. If the Operating Statement shall show that any sums paid by
Tenant under Section 5.02 exceeded the actual sums to be paid by Tenant for
such Operating Year, Landlord shall apply such excess amount against
subsequent payments of Additional Rent due under Section 5.02, and if the
Operating Statement shall show that the sums so paid by Tenant under Section
5.02 were less than the actual sums to be paid by Tenant for such Operating
Year, Tenant shall pay, as Additional Rent, the amount of such deficiency
within thirty (30) days after demand therefor.
SECTION 5.06 OPERATING STATEMENT BINDING. Each such Operating Statement
given by Landlord pursuant to Section 5.05 shall be conclusive and binding
upon Tenant (i) unless within sixty (60) days after the receipt of such
Operating Statement, Tenant shall notify Landlord that it disputes the
correctness of the Operating Statement, specifying the particular respects in
which the Operating Statement is claimed to be incorrect, and (ii) if such
disputes shall not have been settled by agreement, either party may submit the
dispute to arbitration as provided in Article Twenty-Six, within one hundred
and twenty (120) days after receipt of such Operating Statement; pending the
determination of such dispute by agreement or arbitration as aforesaid, Tenant
shall within thirty (30) days after receipt of such Operating Statement pay
the amounts due as Additional Rent in accordance with Landlord's statement,
without prejudice to Tenant's position. If the dispute shall be determined in
Tenant's favor, Landlord shall forthwith credit the amount of Tenant's
overpayment of such Additional Rent resulting from compliance with Landlord's
Operating Statement to each of the next succeeding installments of Additional
Rent due under Section 5.02 until such overpayment is fully absorbed.
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SECTION 5.07 INTEREST ON LATE PAYMENTS. Tenant covenants to pay Rent as
it becomes due as provided in this Lease, in lawful money of the United States
which shall be legal tender for the payment of all debts and dues, public and
private, at the time of payment. All sums due and payable as Rent, if not
paid within ten (10) days of when required in this Lease, shall bear interest
at the lesser of (i) eighteen (18%) percent per annum, or (ii) the maximum
permissible legal rate of interest at the time, and such interest shall be
deemed to be Additional Rent and payable upon demand, provided in all cases
there will be a minimum administrative late charge of one hundred ($100.00)
dollars.
SECTION 5.09 ALLOCATION OF OPERATING EXPENSES TO HOTEL. The Building as
defined in this Lease means the office building within which the Premises are
situated. As so defined, the "BUILDING" is a portion of a larger building or
structure which contains a first class hotel of approximately 124 rooms (the
"HOTEL") and a common atrium space. For purposes of allocation of Operating
Expenses, the Building does not include the hotel and includes seventy (70%)
percent of the atrium space. Further, in the event other elements of the
Building or its systems are shared in common with the Hotel, the expenses
associated with such elements will be shared between the Hotel and the
Building on the basis of seventy (70%) percent to the Building and thirty
(30%) percent to the Hotel.
ARTICLE SIX
LANDLORD'S WORK; CONDITION OF PREMISES
SECTION 6.01 "AS IS" CONDITION. Tenant shall accept the Premises "AS
IS," except that Landlord shall provide a new entrance to the Premises, two
additional offices and a demising wall, all using building standard material
and all as shown in EXHIBIT C attached hereto ("LANDLORD'S WORK"). So long as
the demising wall included as part of Landlord's Work shall have been
completed, the Premises shall be deemed ready for possession by Tenant, but
Landlord shall complete all of Landlord's Work by December 24, 1996. Landlord
represents and warrants to Tenant that such demising wall is completed and
that Tenant may take possession of the Premises on December 1, 1996 in
accordance with all applicable laws. Tenant's taking possession of the
Premises shall be conclusive evidence that such Premises were in good order
and satisfactory condition when Tenant took possession. No promise of
Landlord to alter, remodel or improve the Premises or the Building and no
representation by Landlord or its agents respecting the condition of the
Premises or the Building have been made to Tenant or relied upon by Tenant
other than as may be contained in this Lease or in any written amendment
hereto signed by Landlord and Tenant.
ARTICLE SEVEN
LANDLORD'S SERVICES
SECTION 7.01 LANDLORD'S SERVICES. So long as no Event of Default exists
under this Lease, Landlord shall provide the following services on all
Business Days during the Term unless otherwise stated:
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(i) Water for normal lavatory and drinking purposes at all times.
Provided, if Tenant requires, uses or consumes water for any other purposes,
Tenant agrees that Landlord may install a meter or meters or other means to
measure Tenant's water consumption in the Premises, and Tenant further agrees
to reimburse Landlord for the cost of the meter or meters and the installation
thereof, and to pay for the maintenance of said meter or meters and to pay
Landlord's cost of other means of measuring such water consumption by Tenant
within ten (10) days after the rendition of a bill thereof. Tenant shall
reimburse Landlord for all water consumed as measured by said meter or meters
or as otherwise measured, including sewer rents at the rates established by
Landlord from time to time. The costs or charges which Landlord shall be
entitled to collect from Tenant pursuant to this Section 7.01 shall be
collectable as an item of Additional Rent.
(ii) Heating and air conditioning when necessary for normal comfort in
the Premises during Business Hours of all Business Days. The heating and air
conditioning system shall be sufficient to provide reasonable comfort, within
tolerances normal in first class office buildings. If Tenant shall require
air conditioning service After Hours, Landlord shall furnish such After Hours
air conditioning service upon reasonable advance notice from Tenant in
accordance with Landlord's policies on After Hours service, and Tenant shall
pay Landlord's then established charges therefor on Landlord's demand.
(iii) Electricity.
SECTION 7.02 INTERRUPTION OF SERVICES; AFTER HOURS. Tenant agrees that
Landlord shall not be liable in damages, by abatement of Rent or otherwise,
for failure to furnish or delay in furnishing any service, or for any
diminution in the quality or quantity thereof, when such failure or delay or
diminution is occasioned, in whole or in part, by repairs, renewals, or
improvements, by any strike, lockout or other labor disputes, by inability to
secure electricity, gas, water, or other utilities at the Building after
reasonable effort to do so, by any accident or casualty whatsoever, by act or
default of Tenant or other parties, by reason of laws, orders or regulations
of any Governmental Authority or by reason of unavailability or reduction in
the availability or suitable fuels and/or power supplies, or by reason of Acts
of God, or by any other cause beyond Landlord's reasonable control; and such
failures or delays or diminution shall never be deemed to constitute an
eviction or disturbance of Tenant's use and possession of the Premises or
relieve Tenant from paying Rent or performing any of its obligations under
this Lease. Landlord shall be diligent in its efforts to cure such failure or
delay or diminution. Landlord makes no representation, or warranties as to
the habitability of the Premises other than during Business Hours. Landlord
hereby reserves the right to diminish or stop providing heating, air
conditioning (if any), elevator, water and sewer, electric and all other
services which Landlord has hereby expressly or impliedly covenanted to
provide without liability to Tenant whenever Landlord, in its reasonable
opinion, deems such stoppage or reduction in such services to be necessary or
desirable by reason of accident(s), emergency(ies), need for repair(s),
alteration(s), replacement(s), inspection(s) or other appropriate cause(s).
Such stoppage or reduction in services shall not be deemed to constitute an
actual or constructive eviction nor shall Tenant become entitled to any
reduction or abatement in Tenant's obligation to pay Rent.
<PAGE>
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SECTION 7.03 CHARGES FOR SERVICES. Charges for any service for which
Tenant is required to pay from time to time hereunder shall be due and payable
at the same time as the installment of Rent with which they are billed, or if
billed separately, shall be due and payable within thirty (30) days after such
billing. If Tenant shall fail to make payment for any such services, Landlord
may, with notice to Tenant, discontinue any or all of such services and such
discontinuance shall not be deemed to constitute an eviction or disturbance of
Tenant's use and possession of the Premises or relieve Tenant from paying Rent
or performing any of its other obligations under this Lease.
SECTION 7.04 TENANT'S COMPLIANCE.
7.04.01. The performance by Landlord of its obligations under Section 7.01 is
subject to Tenant's compliance with the conditions of occupancy established by
Landlord.
7.04.02. Use of the Premises, or any part thereof, in a manner exceeding the
heating, ventilating and/or air-conditioning design conditions (including
occupancy and connected electrical load), or rearrangement of partitioning
which interferes with normal operation of the heating, ventilating and/or air-
conditioning in the Premises or the use of computer or data processing
machines or other machines or equipment, may require changes in the heating,
ventilating and/or air-conditioning systems servicing the Premises, in order
to provide comfortable occupancy. Such changes, so occasioned, shall be made
by Tenant, at its expense, as Alterations in accordance with the provision of
Article Nine, but only to the extent permitted and upon the conditions set
forth in that Article.
SECTION 7.05 CLEANING SERVICES. Landlord shall provide the cleaning and
janitorial services within the Premises described in EXHIBIT F.
SECTION 7.06 MISCELLANEOUS.
7.06.1. Landlord, at its expense, and at Tenant's request shall provide the
initial listings in the Building directory of the name of Tenant, provided
that the size of the name so listed and location of the directory shall be at
the discretion of Landlord in accordance with Building standard.
Identification at the Premises shall be Tenant's responsibility and expense
and shall comply with Building standard.
7.06.2. Notwithstanding anything to the contrary in this Article Seven or
elsewhere in this Lease, Landlord shall have the right to institute such
policies, programs and measures as may be necessary or desirable, in
Landlord's discretion, for the conservation and/or preservation of energy or
energy related services, or as may be required to comply with any applicable
codes, rules and regulations, Governmental Authority, whether mandatory or
voluntary.
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ARTICLE EIGHT
REPAIRS AND MAINTENANCE
SECTION 8.01 TENANT'S OBLIGATIONS. Tenant shall, at its expense,
throughout the Term of this Lease, take good care of the Premises, the
fixtures and appurtenances therein and Tenant's Property. Tenant shall be
responsible for the repair or replacement of any element of the Building
damaged by Tenant or its agents, customers, invitees, contractors, employees
or guests. Any repairs in or to the Building and the facilities and systems
thereof for which Tenant is responsible, shall be performed in accordance with
the provisions of Section 9.02 and 9.03. If Tenant fails to make repairs
required of it hereunder, Landlord may, but need not, make such repairs and
replacements, and Tenant shall pay Landlord the cost thereof, including a
percentage of the cost thereof (to be uniformly established for the Building)
sufficient to reimburse Landlord for all overhead, general conditions, fees
and other costs or expenses arising from Landlord's involvement with such
repairs and replacements immediately upon being billed for the same. Landlord
may, but shall not be required to, enter the Premises at all reasonable times
to make such repairs, alterations, improvements and additions to the Premises
or to the Building or to any equipment located in the Building as Landlord
shall desire or deem necessary or as Landlord may be required to do by
Governmental Authority or court order or decree.
SECTION 8.02 LANDLORD'S MAINTENANCE. Landlord, at its expense, shall
make all structural and non-structural repairs and replacements necessary or
desirable in Landlord's opinion to keep in good order and repair the exterior
of the Building and the Common Elements other than those repairs required to
be made by Tenant as provided in Section 8.01. There shall be no abatement of
Rent by reason of such maintenance, and there shall be no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to Tenant's
business arising from Landlord or others making any repairs, alterations,
additions, betterments, improvements, restorations or replacements in or to
any portion of the Building or the Premises, or in or to any fixtures,
appurtenances or equipment contained in the Building and the Premises, and
there shall be no liability on Landlord's part (except for Landlord's gross
negligence) for the failure of Landlord or its agents, servants and employees
to make any repairs, alterations, additions, betterments, improvements,
restorations or replacements in or to any portion of the Building or the
Premises, or in or to any fixtures, appurtenances or equipment thereof.
SECTION 8.03 REPAIRS REQUIRED BY GOVERNMENTAL AUTHORITY, ETC. If the
National Board of Fire Underwriters or other body exercising similar functions
or any bureau, department or official of a Governmental Authority, shall
require or recommend any changes, modifications, alterations or the addition
of additional sprinkler heads or other equipment, fire extinguishing system
and/or fire detection system for any reason, or if any such installations,
changes, modifications, alterations, sprinkler heads or other equipment become
necessary to prevent the imposition of a penalty or additional charge against
a full allowance for a sprinkler or fire extinguishing system and/or fire
detection system in the fire insurance rate, from time to time, or by any fire
insurance company as a result of the Permitted Use of the Premises under
Section 4.01, Landlord shall, at its cost and expense, promptly make such
installations within the Premises and supply such changes, modifications,
alterations, additional sprinkler heads or other required or recommended
equipment. Provided, if any such required alterations result from a
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change in Tenant's use of the Premises or from Tenant improvements, equipment
or finish which are materially different from the Building standard, Landlord
shall make such alterations required by this Section at Tenant's sole cost and
Tenant shall pay the cost of such work to Landlord on demand as an item of
Additional Rent.
SECTION 8.04 AREAS RESERVED TO LANDLORD. Except for inside surfaces of
the Premises, all of the Building, including exterior Building walls, the
lobby and elevators, core corridor walls and doors and any core corridor
entrance, loading docks and refuse areas (including dumpsters), any terraces
or roofs adjacent to the Premises, and any space in or adjacent to the
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric
or other utilities, sinks or other Building facilities, and the use thereof,
as well as access thereto through the Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord. Tenant shall
permit Landlord to install, use and maintain pipes, ducts and conduits within
the demising walls, bearing columns and ceilings of the Premises. Landlord
reserves the right at any time to alter the demising wall between the Premises
and the Expansion Space to eliminate the communicating door through such
demising wall.
SECTION 8.05 LANDLORD'S ACCESS. Landlord or Landlord's agent shall have
the right to enter and/or pass through the Premises or any part thereof, at
reasonable times during Business Hours of Business Days, upon advance notice
to Tenant (except in emergencies) or at any time After Hours of Business Days,
for the purpose of making such repairs or changes to the Building or its
facilities as may be provided for by this Lease or as Landlord may be required
to make by law or in order to repair and maintain the Building or its fixtures
or facilities and to show them to actual and prospective Superior Lessors or
Superior Mortgagees, or prospective purchasers, mortgagees or lessees of the
Building. Landlord shall be allowed to take all materials into and upon the
Premises that may be required for such repairs, changes, repainting or
maintenance, without liability to Tenant, except for the negligence of
Landlord, its agents, servants, employees or representatives. Landlord shall
have the right (but not an obligation) to enter and/or pass through the
Premises, or any part thereof, at such times as such entry shall be required
by circumstances of emergency affecting the Premises or the Building.
SECTION 8.06 CHANGES TO BUILDING. Landlord reserves the right, at any
time after completion of the Building, without incurring any liability to
Tenant therefor, to make such changes in or to the Building and the fixtures
and equipment thereof, as well as in or to the street entrances, halls,
passages, elevators and stairways thereof, as it may deem necessary or
desirable so long as it shall not materially and detrimentally affect Tenant's
business.
ARTICLE NINE
TENANT'S IMPROVEMENTS AND ALTERATIONS
SECTION 9.01 [INTENTIONALLY OMITTED.]
SECTION 9.02 TENANT IMPROVEMENTS. Tenant shall make no alterations,
decorations, installations, additions or improvements (hereinafter
individually and collectively referred to as "TENANT'S IMPROVEMENTS") in or to
the Premises, whether structural or non-structural, without
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Landlord's prior written consent. Except with respect to alterations or
improvements prohibited under the Rules and Regulations, such consent shall
not be unreasonably withheld. All Tenant's Improvements shall be performed at
Tenant's sole cost and expense and by contractors or mechanics approved, in
writing, by Landlord, and in such a manner so that the same shall not
interfere with the operation and maintenance of the Building or with other
work being done by Landlord or other tenants or occupants in the Building.
All such Tenant's Improvements: (i) shall comply with all applicable laws,
rules, orders, permits, authorizations of all Governmental Authorities and
orders, rules and regulations of the National Board of Fire Underwriters, and
other bodies exercising similar functions, and (ii) shall be made promptly and
in good workmanlike manner using prime quality materials.
SECTION 9.03 LANDLORD'S CONSENT. In the event Tenant desires to make
any Tenant's Improvements, Tenant shall request Landlord's consent in writing
not later than sixty (60) days prior to the date upon which Tenant proposes to
commence such Tenant's Improvements. As a condition to Landlord's consent to
any Tenant Improvements (other than additions, or substitutions for existing
carpeting, or painting the walls in the Premises), Tenant shall, at Tenant's
sole cost and expense, furnish Landlord with such plans and specifications,
certificates evidencing appropriate insurance coverages, performance bonds,
such permits, authorizations or consents as may be required by an applicable
law, rule, order or requirement of any Governmental Authority having
jurisdiction thereover and such other documents, agreements, authorizations or
assurances as Landlord may in its sole discretion request. Tenant shall also
reimburse Landlord for any cost or expense incurred by it in reviewing,
approving or disapproving Tenant's proposed Improvements.
SECTION 9.04 NO ENCUMBRANCES ON INCORPORATED MATERIAL OR EQUIPMENT. In
no event shall any material or equipment be incorporated in or to the Premises
in connection with any such Tenant's Improvements which is subject to any
lien, encumbrance, chattel mortgage, security interest or charge of any kind
whatsoever, or is subject to any conditional sale or other similar or
dissimilar title retention agreement. Any mechanic's or materialman's lien
filed against the Land or the Building or Landlord's interest therein, for
work claimed to have been done, or for materials claimed to have been
furnished to Tenant, shall be discharged by Tenant within thirty (30) days
thereafter, at Tenant's sole cost and expense, by filing a bond as provided by
law or otherwise. If Tenant shall fail to have discharged any lien or
encumbrances described in this Section 9.04, Landlord may, but shall not be
required to, cause such lien or encumbrance to be discharged by bonding or
otherwise, and Tenant shall reimburse Landlord, as an item of Additional Rent,
for all costs and expenses which Landlord may incur, including attorneys' fees
and disbursements, within ten (10) days following written demand.
SECTION 9.05 RESTRICTIONS ON USE OF LABOR AND MATERIAL. Tenant
covenants that it will not at any time, either directly or indirectly, use any
contractors or labor or materials in the Premises if the use of such
contractors or labor or materials would create any difficulty with other
contractors or labor engaged by Tenant or Landlord or others in the
construction, maintenance or operation of the Building or any portion thereof.
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SECTION 9.06 LIABILITY FOR ALTERATIONS. Landlord shall not be liable
for any failure or diminution of any Building facilities or services,
including, but not limited to, the air-conditioning system, the heating and
ventilating systems, the electrical system, the plumbing system and/or any
other mechanical system caused by Tenant's Improvements made by or on behalf
of Tenant, and Tenant shall correct any such faulty installation and repair
any damage caused thereby. Upon Tenant's failure to make such corrections and
repairs, Landlord may make such corrections and repairs and charge Tenant for
the cost thereof. Such sum as may be due Landlord pursuant to this Section
9.06 shall be deemed an item of Additional Rent and shall be paid by Tenant
within ten (10) days following written demand.
SECTION 9.07 LANDLORD'S LIABILITY LIMITED. Notwithstanding the right of
Landlord to approve any matter described in this Article Nine, Landlord shall
have no responsibility or liability for the performance or quality of work of
any contractor, subcontractor, agent or consultant of Tenant. The approval by
Landlord, whether express or implied, of Tenant performing Tenant's
Improvements in or to the Premises shall in no way affect Landlord's rights or
Tenant's obligations relating to the restoration of the Premises. Tenant
agrees that any review or approval by Landlord of any plans or specifications
with respect to any Tenant's Improvements is solely for Landlord's benefit,
and without any representation or warranty whatsoever to Tenant with respect
to the adequacy, correctness or efficiency thereof or otherwise.
SECTION 9.08 LANDLORD'S REMEDY. If Tenant fails to comply with any
provisions of this Article Nine, Landlord, in addition to any other remedy
herein provided, may require Tenant to cease performing Tenant's Improvements,
and Landlord may deny access to the Premises to any person performing any
Tenant's Improvements on behalf of Tenant.
ARTICLE TEN
COMPLIANCE WITH LAWS AND REQUIREMENTS OF GOVERNMENTAL AUTHORITIES
SECTION 10.01 TENANT'S NOTICE. Tenant shall give prompt notice to
Landlord of any notice it receives of the violation of any laws or
requirements of any Governmental Authority with respect to the Premises or the
use or occupation thereof. Tenant shall, at Tenant's expense, comply with all
laws and requirements of any Governmental Authorities which shall, in respect
of the Premises or the use and occupation thereof, or the abatement of any
nuisance in, on or about the Premises, impose any violation, order or duty on
Landlord or Tenant, arising from (a) Tenant's use of the Premises, (b) the
manner of conduct of Tenant's business or operation of its installations,
equipment or other property therein, (c) any cause or condition created by
Tenant, or (d) breach of any of Tenant's obligations hereunder; and Tenant
shall pay all the costs, expenses, fines, penalties and damages which may be
imposed upon Landlord or any Superior Mortgagee or Superior Lessor by reason
of or arising out of Tenant's failure to comply with and observe the
provisions of this Section fully and promptly. However, Tenant need not
comply with any such law or requirement of any Governmental Authority so long
as Tenant shall be contesting the validity thereof, or the applicability
thereof to the Premises, in accordance with Section 10.02.
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SECTION 10.02 TENANT MAY CHALLENGE VALIDITY OF LAWS OR REQUIREMENTS.
Tenant, at its expense, after notice to Landlord, may contest, by appropriate
proceedings prosecuted diligently and in good faith, the validity or
applicability to the Premises of any law or requirement of any Governmental
Authority, provided (a) the law or requirement at issue does not generally
apply to the Building as a whole or to all tenanted space in the Building but
has particular applicability to Tenant's Premises; (b) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, nor shall the
Premises or any part thereof be subject to being condemned or vacated, by
reason of non-compliance or otherwise by reason of such contest; (c) before
the commencement of such contest, Tenant shall furnish to Landlord either (i)
the bond of a surety company satisfactory to Landlord, which bond shall be, as
to its provision and form, satisfactory to Landlord, and shall be in an amount
at least equal to one hundred twenty-five (125%) percent of the cost of such
compliance (as estimated by Landlord) and shall indemnify Landlord against the
cost thereof and against all liability for damages, interest, penalties and
expenses (including reasonable attorneys' fees and expenses), resulting from
or incurred in connection with such contest or non-compliance, or (ii) other
security in place of such bond satisfactory to Landlord; (d) such non-
compliance or contest shall not constitute or result in any violation of any
Superior Lease or Superior Mortgage, or if any such Superior Lease or Superior
Mortgage shall permit such non-compliance or contest on condition of the
taking of action or furnishing of security by Landlord, such action shall be
taken and such security shall be furnished at the expense of Tenant; and (e)
Tenant shall keep Landlord advised as to the status of such proceedings.
Without limiting the application of the above, Landlord shall be deemed
subject to prosecution for a crime if Landlord, or its managing agent, or any
officer, director, partner, shareholder or employee of Landlord or its
managing agent, as an individual, is charged with a crime of any kind or
degree whatever, whether by service of a summons or otherwise, unless such
charge is withdrawn before Landlord or its managing agent, or such officer,
director, partner, shareholder or employee of Landlord or its managing agent
(as the case may be) is required to plead or answer thereto.
ARTICLE ELEVEN
SECTION 11.01 LANDLORD'S INSURANCE. At all times during the Term of
this Lease, Landlord shall insure the Building against loss or damage by fire,
and such other casualties as may be included within the extended coverage
clauses of policies which are then standard for use in the State of
Connecticut, in such amount as Landlord in its sole judgment shall deem
appropriate.
SECTION 11.02 TENANT SHALL NOT JEOPARDIZE INSURANCE. Tenant shall not
do, or permit to be done, any act or thing in, upon or around the Premises
which (i) could result in termination of any insurance which Landlord may have
in force with respect to the Building or Land, (ii) could adversely affect
Landlord's right of recovery under any of such policies, or (iii) would result
in the refusal by reputable and independent insurance companies to insure the
Building or the Land in amounts reasonably satisfactory to Landlord. Tenant
shall, with respect to the Premises, at is sole cost and expense, comply with
all rules, orders, regulations or requirements of the National Board of the
Fire Underwriters, or any other similar body having jurisdiction over the Land
and Building and shall not knowingly do, or permit to be done, anything
therein, or use
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the Premises in a manner which increases the rate of premium over the rates in
effect prior to the Commencement Date for any insurance that Landlord
maintains with respect to the Land and Building. In the event Landlord
receives notice from any insurance company insuring the Land and Building that
Tenant's use of the Premises would make Landlord's insurance void or voidable,
Tenant shall, upon receipt of written notice, immediately cease and desist
such use.
SECTION 11.03 TENANT RESPONSIBLE FOR INCREASED PREMIUMS. If, by reason
of Tenant's non-compliance with any of the provisions contained in the Lease,
Landlord's cost of obtaining and/or maintaining any of the forms of insurance
referred to in Section 11.01 shall be greater than the cost that Landlord
would incur but for Tenant's noncompliance, then, in that event, Tenant
covenants that it shall pay to Landlord as an item of Additional Rent, within
ten (10) days following the delivery of a written demand therefor, such excess
cost as Landlord shall incur; provided, however, that if the remaining portion
of the Lease Term shall be less than the period of time covered by any such
insurance, Tenant shall only be obligated to pay its pro rata share of such
excess cost apportioned to the Expiration Date.
SECTION 11.04 REQUIRED INSURANCE. At all times during the Lease Term
(and in the event Landlord grants permission to Tenant to enter the Premises
for any reason prior to the Commencement Date, then from such earlier date)
Tenant shall provide and thereafter keep in full force and effect the
following:
(i) comprehensive general liability insurance insuring against
liability for bodily injury and death and for property damage in an amount as
may from time to time be required by Landlords of other Class "A" office
buildings in the City of Hartford, but in an amount not less than One Million
($1,000,000) Dollars each occurrence, combined single limit, such limits to be
increased from time to time as reasonably specified by Landlord. With
Landlord's prior consent, in its reasonable discretion, Landlord may self
insure up to $3,000,000 per occurrence;
(ii) workers' compensation providing statutory Connecticut benefits
for all persons employed by Tenant in connection with the Premises;
(iii) an "All Risk of Physical Loss" form of policy covering all of
Tenant's Property and Tenant's Improvements including, but not limited to,
moveable trade fixtures, inventory and decorations, such insurance to be in an
amount not less than One Hundred (100%) Percent of the actual replacement
value for all of Tenant's Property and contents, such replacement value to be
determined from time to time as necessary to avoid coinsurance penalties, it
being agreed that no omission on the part of Landlord to request any such
determination shall relieve Tenant of its obligation to determine such
replacement value as aforesaid;
(iv) such other insurance in such amounts as may be required by
Landlord against other insurable hazards as at the time are commonly insured
against in the case of prudent owners of comparable Class "A" office buildings
in the City of Hartford, Connecticut; and
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(v) for and during any time when Tenant shall be constructing or
making Tenant's Improvements, a policy of completed value non-reporting
builder's risk insurance for the Premises, including building materials in the
Premises, covering loss or damage from fire, lightning, extended coverage
perils, vandalism and malicious mischief and perils covered under a difference
in conditions policy and completed operations in an amount not less than the
final cost, as reasonably estimated by Tenant, of such Tenant's Improvements
(with an agreed amount clause).
SECTION 11.05 MISCELLANEOUS INSURANCE REQUIREMENTS.
11.05.1 All insurance which Tenant shall be required to effect pursuant to
this Article Eleven shall:
(i) be in form and substance reasonably acceptable to Landlord;
(ii) be underwritten by insurance companies that are licensed or
authorized to do business in the State of Connecticut, shall be in good
standing with the Connecticut Insurance Department, and shall have a rating
issued by an organization regularly engaged in rating insurance companies of
not less than one rating below the top rating;
(iii) provide for deductibles which are not disproportionally
large in light of the coverage and not unacceptable to Landlord;
(iv) name Landlord as an additional insured (for the general
liability insurance only), and, at Landlord's request, name any Superior
Lessor or Superior Mortgagee as an additional insured (except when such an
endorsement is not available) and contain provisions (where available) that no
act or omission of Tenant shall affect or limit the obligations of the
insurance company to pay the amount of any loss sustained to Landlord and/or
any Superior Lessor or Superior Mortgagee; and
(v) be issued for terms of not less than twelve (12) full
calendar months and shall contain a provision that such insurance shall not be
subject to cancellation or reduction in coverage unless Landlord shall be
served with a written notice not later than thirty (30) days prior to
cancellation or reduction in coverage.
11.05.2 At such time as Tenant shall first be allowed to enter the Premises,
Tenant shall deliver to Landlord original insurance policies or certificates
evidencing required insurance coverage. Not later than thirty (30) days prior
to the expiration of any contract of insurance required under the terms
hereof, renewals of or replacements for any such contracts of insurance shall
be delivered to Landlord. In the event that Tenant shall fail to procure any
contract of insurance required under the terms hereof or any renewal of or
replacement for any contract of business which is expiring or has been
cancelled, Landlord may, but shall not be obligated to, procure such insurance
on behalf of Tenant and the cost thereof shall be immediately payable to
Landlord as an item of Additional Rent.
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11.05.3 Any insurance to be acquired and maintained by Tenant hereunder may
be satisfied by an appropriate rider to a blanket policy of insurance covering
more than one business location, provided that all other requirements of this
Article are fully satisfied thereby.
SECTION 11.06 WAIVER OF SUBROGATION. Landlord and Tenant waive all
rights against each other for damages caused by fire or other casualty to the
extent covered by insurance obtained or required pursuant to this Lease.
ARTICLE TWELVE
DAMAGE BY FIRE OR OTHER CAUSE
SECTION 12.01 DAMAGE OR DESTRUCTION. If the Premises shall be damaged
by fire or other casualty, the following provisions will apply:
(i) If Tenant shall continue to have reasonably convenient access to
the Premises and no material portion of the Premises shall thereby be rendered
unfit for use and occupancy by Tenant for the purposes set forth herein,
Landlord shall repair such damage or destruction with reasonable diligence.
During the period when such repair work is being conducted, the Rent shall not
be abated or suspended.
(ii) If Tenant shall not have reasonably convenient access to the
Premises or any material portion of the Premises shall thereby be otherwise
rendered unfit for use and occupancy by Tenant for the purposes set forth
herein and if in the reasonable judgment of Landlord the damage or destruction
may be repaired within one hundred twenty (120) days after the occurrence of
the damage or destruction, then Landlord shall so notify Tenant within thirty
(30) days after the occurrence of the damage or destruction and commence
restoration with reasonable diligence. In the event that Landlord shall not
complete such repairs within one hundred twenty (120) days after the
occurrence of the damage or destruction, then Tenant shall have the right to
terminate this Lease by giving written notice of such termination to Landlord
within ten (10) days after the end of such one hundred twenty (120) day
period, provided, however, that in the event that the repairs shall be delayed
by strikes, governmental regulation, zoning laws, inability to obtain labor or
materials, from any other cause beyond Landlord's control, or for other good
reason, the time for completion shall be extended by the period of such delay.
If in the reasonable judgment of Landlord the Premises, or means of access
thereto, cannot be repaired within one hundred twenty (120) days after the
occurrence of the damage or destruction and Landlord does not give Tenant the
notice referred to in this subsection 12.01(ii), then either party shall have
the right to terminate this Lease by giving written notice of such termination
to the other party within the period of thirty (30) to forty-five (45) days
after the occurrence of such damage or destruction. If neither party gives
such notice of intention to terminate this Lease, then Landlord shall repair
the damage or destruction with reasonable diligence;
(iii) If Tenant shall not have reasonably convenient access to the
Premises for more than thirty days or any material portion of the Premises
shall be rendered unfit for use and occupancy by Tenant for the purposes set
forth herein by reason of such damage or destruction
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for more than thirty days, and if such damage or destruction was not caused by
the negligence or willful act or omission of Tenant or any of its officers,
employees, contractors, agents or invitees, then the Base Rent shall be
equitably suspended or abated until Landlord shall have substantially
completed the repair of the Premises and the means of access thereto.
SECTION 12.02 LANDLORD'S AND TENANT'S ADDITIONAL OPTION TO TERMINATE THE
LEASE IN EVENT OF DAMAGE. In addition to and apart from the foregoing
provisions of this Article Twelve,
(i) if more than twenty-five (25%) percent of the Gross Rentable Area
of the Premises shall be damaged or destroyed by fire or other cause at any
time during the last twelve (12) months of the Term of this Lease, Landlord or
Tenant may terminate this Lease by giving written notice of such termination
to Tenant within thirty (30) days after the occurrence of such damage or
destruction, and
(ii) if the Building is damaged or destroyed by fire or other cause to
such extent that the cost to repair the damage or destruction (whether or not
the Premises is damaged), as reasonably estimated by Landlord, will be more
than twenty-five (25%) percent of the replacement value of the Building
immediately prior to the occurrence of such damage or destruction, then
Landlord or Tenant may terminate this Lease by giving written notice of such
termination to Tenant within sixty (60) days after the occurrence of such
damage or destruction.
SECTION 12.03 EFFECT OF SUPERIOR LEASE OR SUPERIOR MORTGAGE. Tenant
acknowledges that the Building may be subject to a Superior Lease or Superior
Mortgage and that the foregoing options with respect to repairing or
rebuilding are all subject to the provisions of such Superior Lease or
Superior Mortgage.
SECTION 12.04 LOSS CAUSED BY TENANT. Nothing herein contained shall
relieve Tenant from any liability to Landlord or to its insurers in connection
with any damage to the Premises or the Building by fire or other casualty if
Tenant shall be legally liable for said fire or other casualty, except as
provided in Section 11.06 of this Lease.
SECTION 12.05 TENANT'S PROPERTY AND TENANT'S IMPROVEMENTS. Landlord's
obligation to restore or rebuild the Premises shall not include the repair,
reconstruction or replacement of any of Tenant's Property, or Tenant
Improvements whether or not Tenant has received an allowance therefor.
ARTICLE THIRTEEN
ASSIGNMENT, SUBLETTING AND MORTGAGING PROHIBITED
Tenant may not assign this Lease except to an affiliate of Tenant. For
such purposes, "AFFILIATE" means any corporation which is a direct or indirect
subsidiary of Tenant, which is a parent corporation of Tenant or which is a
direct or indirect subsidiary of a parent corporation of Tenant. Tenant may
sublet the Premises to an Affiliate or to any other party with Landlord's
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prior written consent, which consent shall not be unreasonably withheld. If
any sublet of the Premises to a non-Affiliate shall be at a rent per square
foot in excess of the per square foot rent due hereunder, then Landlord and
Tenant shall share equally in such excess, after deducting all direct, out-of-
pocket costs of any sublet.
ARTICLE FOURTEEN
TENANT'S AND LANDLORD'S PROPERTY
SECTION 14.01 TENANT'S PROPERTY.
14.01.1 All movable partitions, other business and trade fixtures, machinery
and equipment, communications equipment, which are installed in the Premises
by or for the account of Tenant, without expense to Landlord, and which can be
removed without structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant
and located in the Premises, including retail inventory (all of which are
sometimes called "TENANT'S PROPERTY") shall be and shall remain the property
of Tenant and may be removed by it at any time during the Term of this Lease;
provided that if any of Tenant's Property is removed, Tenant shall repair or
pay the cost of repairing any damage to the Premises or to the Building
resulting from such removal. Any equipment or other property for which
Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense
to Landlord, shall not be considered Tenant's Property and shall be deemed the
property of Landlord.
14.01.2 On or before the Expiration Date, or the date of any earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant's Property (except such items thereof as Tenant shall
have expressly agreed in writing with Landlord shall remain and become the
property of Landlord) shall be removed by Tenant, and Tenant shall repair any
damage to the Premises or the Building resulting from such removal.
14.01.3 Any other items of Tenant's Property (except money, securities and
other like valuables) which shall remain in the Premises after the Expiration
Date or as promptly as practical after an earlier termination of this Lease,
may at the option of Landlord, be deemed to have been abandoned, and in such
case either may be retained by Landlord as its property or may be disposed of,
without accountability, in such manner as Landlord may see fit at Tenant's
expense.
SECTION 14.02 LANDLORD'S PROPERTY. All Tenant Improvements, including
all fixtures, equipment, improvements and appurtenances attached to or built
into the Premises at the commencement of or during the Term of this Lease,
whether or not by or at the expense of Tenant including but not limited to
wall to wall carpeting, wallpaper, partitions, and the like affixed to the
Premises, shall be and remain a part of the Premises, shall be deemed the
property of Landlord and shall not be removed by Tenant, except as hereinafter
in this Article expressly provided. Upon the expiration of the Lease Term,
Landlord may elect that Tenant remove any Tenant Improvements which Tenant may
have installed in the Premises at any time during the Lease Term without
Landlord's written consent and restore the Premises to the condition the same
were in as of the Commencement Date. In the event Landlord desires to
exercise its option
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as contained in this Section 14.02 to require restoration of the Premises,
Landlord shall give written notice to Tenant not later than the earlier to
occur of: (i) thirty (30) days prior to the Expiration Date, or (ii) in that
event of the earlier termination of the Lease Term for any other reason, upon
such earlier termination of the Lease Term. If Landlord shall so notify
Tenant, Tenant shall restore the Premises (or so much thereof as shall be the
subject of Landlord's notice) to the condition that the Premises were in as of
the Commencement Date of this Lease. If any Tenant Improvements which Tenant
shall be required to remove from the Premises shall not be removed by Tenant
within the time herein required, Landlord (in addition to all other rights and
remedies which Landlord may have) shall be entitled to treat such property as
having been abandoned by Tenant, and Landlord may remove the same and restore
the Premises (or so much thereof as shall be the subject of Landlord's notice)
to the condition the same were in as of the Commencement Date of the Lease at
the sole cost and expense of Tenant and Tenant shall pay to Landlord, as an
item of Additional Rent, within ten (10) days following written demand
therefor, the cost incurred by Landlord in removing such property and
restoring the Premises as aforesaid. Tenant's obligation to reimburse
Landlord for the cost of removal of Tenant's Improvements and restoring the
Premises described in this Section 14.02 shall survive the Expiration Date or
the earlier termination of the Lease Term. Tenant also covenants that in the
event Landlord shall exercise any of its rights as provided herein, Tenant
shall indemnify and save Landlord harmless for all cost, expenses, damages,
including reasonable attorneys; fees and disbursements which Landlord may
incur as a result of the operation of this Section.
ARTICLE FIFTEEN
CONDEMNATION
SECTION 15.01 TOTAL CONDEMNATION.
15.01.1 If the whole of the Land, Building or the Premises or so much of the
Building or the Premises as is necessary for Tenant's use and occupancy of the
Premises for the purposes set forth herein, or for reasonably convenient
access to the Premises shall be taken for any public or any quasi-public use
under any statute or by right of eminent domain, or by private purchase in
lieu thereof under threat of condemnation or the exercise of the right of
eminent domain, then this Lease shall automatically terminate as of the date
that title shall be taken and the Rent shall be apportioned as of that date so
that if the termination occurs in the middle of a month, Tenant shall be
responsible only for Rent due prior to the termination.
15.01.2 In addition to and apart from the foregoing provisions of this
Section, if more than twenty-five (25%) percent of the Gross Rentable Area of
the Building shall be taken, then Landlord or Tenant may terminate the Term of
this Lease by giving written notice of such termination within thirty (30)
days after the date title vests in the taking authority.
SECTION 15.02 PARTIAL CONDEMNATION. In the event of any taking which
does not result in a termination of the Term of this Lease under Section
15.01, this Lease shall be unmodified and continue, provided, Landlord shall
proceed with reasonable diligence to repair and restore the remaining part of
the Building and the Premises to substantially its former condition to the
extent that the same may be feasible. To the extent the partial taking
results in a reduction of the
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Gross Rentable Area of the Premises, Rent shall be equitably adjusted
according to the Gross Rentable Area remaining.
SECTION 15.03 CONDEMNATION PROCEEDS. In the event of any taking,
partial or whole, provided for in this Article, all of the proceeds of any
award, judgment or settlement payable by the condemning authority shall be and
remain the sole and exclusive property of Landlord, and Tenant shall not be
entitled to any portion of such award, judgment or settlement received by
Landlord from such condemning authority. Tenant, however, may pursue its own
claim against the condemning authority for any damage or award permitted under
the laws of the State of Connecticut to be paid, provided Tenant's claim will
not diminish or reduce the award, judgment or settlement receivable by
Landlord.
SECTION 15.04 TEMPORARY CONDEMNATION. If the temporary use or occupancy
of all or any part of the Premises shall be taken by condemnation or in any
other manner for any public or quasi-public use or purpose during the Term of
this Lease, Tenant shall be entitled, except as hereinafter set forth, to
receive that portion of the award or payment for such taking which represents
compensation for the use and occupancy of the Premises, for the taking of
Tenant's Property and for moving expenses, and Landlord shall be entitled to
receive that portion which represents reimbursement for the cost of
restoration of the Premises. The Lease shall be and remain unaffected by such
taking and Tenant shall continue responsible for all of its obligations
hereunder and shall continue to pay in full the Base Rent and Additional Rent
when due.
ARTICLE SIXTEEN
SURRENDER
On the Expiration Date of this Lease, or upon any earlier termination of
this Lease, or upon any re-entry by Landlord upon the Premises, Tenant shall
quit and surrender the Premises to Landlord including Tenant Improvements in
good order, condition and repair, except for ordinary wear and tear and such
damage or destruction as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in this Lease.
ARTICLE SEVENTEEN
EVENTS OF DEFAULT
SECTION 17.01 EVENTS OF DEFAULT. Each of the following events shall be
an "EVENT OF DEFAULT" hereunder:
(a) Failure by Tenant to pay any installment of Rent within ten days
of its due date.
(b) Failure by Tenant to make any other payment required to be paid
by Tenant hereunder for a period of thirty (30) days after written notice
thereof from Landlord to Tenant.
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(c) Failure by Tenant to observe or perform one or more of the other
terms, covenants and conditions contained in this Lease on Tenant's part to be
performed except for the payment of Rent, and such failure shall continue for
a period of 30 days after written notice thereof by Landlord to Tenant
specifying such failure (unless such failure requires work to be performed,
acts to be done, or conditions to be removed which cannot by their nature
reasonably be performed, done or removed, as the case may be, within such 30
day period, in which case no default shall be deemed to exist as long as
Tenant shall have commenced curing the same within such 30 day period and
shall diligently and continuously prosecute the same to completion provided
such delay in effecting cure shall not expose Landlord to prosecution for a
crime or constitute a default under any Superior Lease or Superior Mortgage).
(d) If Tenant is generally not paying its debts as such debts become
due or if Tenant shall admit, in writing, that it is unable to pay its debts
as such debts become due.
(e) If Tenant shall make an assignment for the benefit of creditors,
or if Tenant shall file a voluntary petition under Title 11 of the United
States Code or if such petition is filed against Tenant and an order for
relief is entered, or if Tenant shall file any petition or answer seeking,
consenting to or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under present or any
future Federal bankruptcy code or any other law, or if Tenant shall seek or
consent to or acquiesce to, or suffer the appointment of any trustee,
receiver, custodian, assignee, liquidator or other similar official of Tenant
or of all or any substantial portion of its assets or of the Premises or any
interest of Tenant therein.
(f) If within sixty (60) days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the present or any future Federal bankruptcy code or any other law, such
proceeding shall not have been dismissed, or if, within sixty (60) days after
the appointment, without the consent of acquiescence of Tenant, of any
trustee, receiver, custodian, assignee, or liquidator of Tenant or of all or
any substantial part of its assets or of the Premises or any interest of
Tenant therein, such appointment shall not have been vacated or stayed on
appeal or otherwise, or if, within thirty (30) days after the expiration of
any such stay, such appointment shall not have been vacated.
(g) If Tenant shall vacate or abandon the Premises or any portion
thereof for ten (10) continuous days.
(h) If a levy under execution or attachment shall be made against
Tenant or its assets and such execution or attachment shall not be vacated or
removed by court order, bonding or otherwise within a period of thirty (30)
days.
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SECTION 17.02 LANDLORD'S RIGHTS ON EVENT OF DEFAULT.
17.02.1 Upon the occurrence of any Event of Default, Landlord may exercise
any one or more of the following rights:
(a) Landlord may re-enter and repossess any of all of the
Premises and any or all improvements thereon and additions thereto.
(b) Landlord may declare the entire balance of the Base Rent for
the remainder of the Term to be due and payable immediately, and collect such
balance in any manner not inconsistent with applicable law; provided that if
Landlord elects to relet any or all of the Premises following such
acceleration of Base Rent, the provisions of subsection 17.02.1(d) shall be
applicable with respect to the rights of Landlord and Tenant. Accelerated
payments payable hereunder shall not constitute a penalty or forfeiture or
liquidated damages, but shall merely constitute payment of Base Rent in
advance.
(c) Landlord may terminate this Lease by giving written notice
of such termination to Tenant, which termination shall be effective as of the
date of such notice or any later date therefor specified by Landlord therein
(provided, that without limiting the generality of the foregoing provisions of
this subsection 17.02.1(c), Landlord shall not be deemed to have accepted any
abandonment or surrender by Tenant of any or all of the Premises or Tenant's
leasehold estate under this Lease unless Landlord has so advised Tenant
expressly and in writing, regardless of whether Landlord has reentered or
relet any or all of the Premises or exercised any or all of Landlord's other
rights under the provisions of this Section or applicable law).
(d) Landlord may, in Landlord's own name (either (i) as agent
for Tenant, if this Lease has not then been terminated, or (ii) for the
benefit of Tenant, if this Lease has then been terminated), relet any or all
of the Premises with or without any additional premises, for any or all of the
remainder of the Term (or, if this Lease has then been terminated, for any or
all of the period which would, but for such termination, have constituted the
remainder of the Term) or for a period exceeding such remainder, on such terms
and subject to such conditions as are acceptable to Landlord in its sole and
absolute discretion (including, by way of example rather than of limitation,
the alteration of any or all of the Premises in any manner which, in
Landlord's judgment, is necessary or desirable as a condition to or otherwise
in connection with such reletting, and the allowance of one or more
concessions or "free-rent" or reduced-rent periods), and collect and receive
the rents therefor. Anything contained in the provisions of this Lease or
applicable law to the contrary notwithstanding, (i) Landlord shall not have
any duty or obligation to relet any or all of the Premises as the result of
any Event of Default, or any liability to Tenant or any other person for any
failure to do so or to collect any rent or other sum due from any such
reletting; (ii) Tenant shall have no right in or to any surplus which may be
derived by Landlord from any such reletting, in the event that the proceeds of
such reletting exceed Rent, or other sum owed by Tenant to Landlord hereunder;
and (iii) Tenant's liability hereunder shall not be diminished or affected by
any such failure to relet or the giving of any such initial or other
concessions or "free-rent" or reduced rent periods in the event of any such
reletting. In the event of any such reletting, Tenant shall pay to Landlord,
at the times and in the manner specified by
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the provisions of this Lease (unless Landlord has elected to accelerate Rent
as provided in subsection 17.02.1(b), in which event Tenant shall be obligated
to pay such accelerated amount as provided in subsection 17.02.1(b) above),
the installments of the Base Rent and any Additional Rent accruing during the
remainder of the Term (or, if this Lease has then been terminated, damages
equaling the respective amounts of such installments of the Base Rent and any
Additional Rent which would have accrued during such remainder, had this Lease
not been terminated), less any monies received by Landlord with respect to
such remainder from such reletting of any or all of the Premises.
(e) Landlord may cure such Event of Default in any other manner,
provided Tenant shall pay as an item of Additional Rent all costs and expenses
which Landlord may incur in curing Tenant's default within ten (10) days
following delivery of a written demand. The aforesaid costs and expenses
which Landlord shall be entitled to incur on behalf of Tenant in curing any
default of Tenant shall include, but shall not be limited to, reasonable
materials, architects' fees, engineers' fees, attorneys' fees, contractor's
fees, insurance premiums, fines and penalties.
(f) Landlord may pursue any combination of such remedies and/or
any other right or remedy available to Landlord on account of such Event of
Default under this Lease and/or at law or in equity.
17.02.2 No such expiration or termination of this Lease, or summary
dispossession proceedings, abandonment, reletting, bankruptcy, re-entry by
Landlord or vacancy, shall relieve Tenant of any of its liabilities and
obligations under this Lease (whether or not any or all of the Premises are
relet), and Tenant shall remain liable to Landlord for all damages resulting
from any Event of Default, including but not limited to, any damage resulting
from the breach by Tenant of any of its obligations under this Lease to pay
Rent and any other sums which Tenant is obligated to pay hereunder.
17.02.3 If any or all of the Premises are relet by Landlord for any or all of
the unexpired Term of this lease, the amount of rent reserved upon such
reletting shall be deemed to be the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term of the reletting.
17.02.4 On the occurrence of an Event of Default, Tenant shall, immediately
upon its receipt of a written demand therefor from Landlord, reimburse
Landlord, as Additional Rent, for all expenses (including, by way of example
rather than of limitation, any and all repossession costs, management
expenses, operating expenses, legal expenses and reasonable attorneys' fees)
incurred by Landlord (i) in curing or seeking to cure any Event of Default
and/or (ii) in exercising or seeking to exercise any of Landlord's rights and
remedies under the provisions of this Lease and/or at law or in equity on
account of any Event of Default, and/or (iii) otherwise arising out of any
Event of Default.
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SECTION 17.03 TENANT'S WAIVERS AND CONSENTS. To the extent not
prohibited by law, Tenant hereby waives and releases all rights now or
hereafter conferred by statute or otherwise which would have the effect of
limiting or modifying any of the provisions of this Article Seventeen,
including, but not limited to any and all rights of redemption it may
otherwise have. Tenant shall execute, acknowledge and deliver any instruments
which Landlord may request, whether before or after the occurrence of any
Event of Default, evidencing such waiver or release. Except as expressly
provided herein or prohibited by applicable law, Tenant hereby expressly
waives the service of any notice of intention to re-enter provided for in any
statute, or of the institution of legal proceedings to that end, and Tenant,
for and on behalf of itself and all persons claiming through or under Tenant,
also waives any and all right of redemption provided by any law or statute now
in force or hereafter enacted or otherwise, or re-entry or repossession or to
restore the operation of this Lease in case Tenant shall be dispossessed by a
judgment or by warrant of any court or judge or in case of re-entry or
repossession by Landlord or in case of any expiration or termination of this
Lease, and Landlord and Tenant waive and shall waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other 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. Tenant
further agrees that any and all actions or proceedings arising directly or
indirectly hereunder may, at the option of Landlord, be litigated in courts
having situs within the State of Connecticut with a venue of Hartford,
Connecticut, and Tenant hereby expressly consents to the jurisdiction of any
state or federal court located within said state having such a venue and
consents that any service of process in such action or proceeding may be made
by personal service upon Tenant wherever Tenant may be then located, by
certified or registered mail directed to Tenant at the Address of Tenant as
provided herein, or otherwise as may be provided by law. The terms "enter",
"re-enter", "entry" or "re-entry", as used in this Lease are not restricted to
their technical legal meaning.
SECTION 17.04 LANDLORD'S ACTIONS. Suit or suits for the recovery of
damages, or for a sum equal to any installment or installments of Base Rent
and Additional Rent payable hereunder or other sums payable by Tenant to
Landlord pursuant to this Article Seventeen, may be brought by Landlord from
time to time at Landlord's election, and nothing herein contained shall be
deemed to require Landlord to await the Expiration Date had there been no
Event of Default by Tenant and termination. Nothing contained in this Article
Seventeen shall limit or prejudice the right of Landlord to prove and obtain
as liquidated damages in any bankruptcy, insolvency, receivership,
reorganization or dissolution proceeding an amount equal to the maximum
allowed by a statute or rule of law governing such proceeding and in effect at
the time when such damages are to be proved, whether or not such amount shall
be greater than, equal to or less than the amount of the damages referred to
in any of the preceding Sections of this Article Seventeen.
SECTION 17.05 INJUNCTIVE RELIEF. In the event of any breach or
threatened breach by Tenant of any of the terms, covenants or conditions
contained in this Lease, Landlord shall be entitled to enjoin such breach or
threatened breach and shall have the right to invoke any rights and/or
remedies allowed at law or in equity or by statute or otherwise as though re-
entry, summary proceedings, and other remedies were not provided for in this
Lease.
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SECTION 17.06 LANDLORD'S RIGHTS CUMULATIVE. Each right and remedy of
Landlord provided for in this Lease shall be cumulative and, in addition to
every other right and/or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Landlord of any one or more of the rights and/or
remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise, shall not preclude the simultaneous or
later exercise by Landlord of any or all other rights or remedies provided for
in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise.
SECTION 17.07 BANKRUPTCY MATTERS. If an order for relief is entered or
if a stay of proceeding or other acts become effective in favor of Tenant or
Tenant's interest in this Lease in any proceeding which is commenced by or
against Tenant under the present or any future Federal bankruptcy code or any
other present or future applicable Federal, State or other statute or law,
Landlord shall be entitled to invoke any and all rights and remedies available
to it under such bankruptcy code, statute, law or this Lease, including,
without limitation, such rights and remedies as may be necessary to protect
adequately Landlord's right, title and interest in and to the Premises or any
portion thereof and to assure adequately the complete and continuous future
performance of Tenant's obligations pursuant to this Lease. Adequate
protection of Landlord's right, title and interest in and to the Premises, and
adequate assurance of the complete and continuous future performance of
Tenant's obligations pursuant to this Lease, shall include, without
limitation, the following requirements:
(a) that Tenant comply with all of its obligations pursuant to this
Lease;
(b) that Tenant pay to Landlord, on the first day of each month
occurring subsequent to the entry of such order or the effective date of such
stay, a sum equal to the amount by which the Premises diminished in value
during the immediately preceding monthly period, but, in no event, an amount
which is less than the Base Rent and Additional Rent payable for such monthly
period;
(c) that Tenant continue to use the Premises in accordance with its
Permitted Use;
(d) that Landlord be permitted to supervise the performance of
Tenant's obligations pursuant to this Lease;
(e) that Tenant hire, at its sole cost and expense, such security
personnel as may be necessary to insure the adequate protection and security
of the Premises;
(f) that Tenant pay Landlord as an item of Additional Rent within
thirty (30) days after entry of such order or the effective date of such stay,
as partial adequate protection against future diminution in value of the
Premises and adequate assurance of the complete and continuous future
performance of Tenant's obligations under this Lease, an additional security
deposit in an amount acceptable to Landlord, but in no event less than the
Base Rent and Additional Rent payable during the preceding twelve (12) months
of the Lease Term;
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(g) that Tenant has and will continue to have unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that sufficient funds will be available to fulfill the
obligations of Tenant pursuant to this Lease;
(h) that if Tenant's trustee, Tenant or Tenant as debtor-in-
possession assumes this Lease and proposes to assign the same to any person
who shall have made a bona fide offer to accept an assignment of this Lease on
terms acceptable to the trustee, Tenant or Tenant as debtor-in-possession, the
notice of such proposed assignment, setting forth (i) the name and address of
such person, (ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such person's future
performance under the Lease, including, without limitation, the assurance
referred to in Title 11 U.S.C. 365(b)(3) (as the same may be amended), shall
be given to Landlord by the trustee, Tenant or Tenant as debtor-in-possession
no later than twenty (20) days after receipt by the trustee, Tenant or Tenant
as debtor-in-possession of such offer, but in any event no later than ten (10)
days prior to the date that the trustee, Tenant or Tenant as debtor-in-
possession shall make application to a court of competent jurisdiction for
authority and approval to enter into such assignment and assumption, and
Landlord shall thereupon have the prior right and motion, to be exercised by
notice to the trustee given at any time prior to the effective date of such
proposed assignment, to accept an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person, less any brokerage commissions which may be payable out
of the consideration to be paid by such person for the assignment of this
Lease.
ARTICLE EIGHTEEN
COVENANT OF QUIET ENJOYMENT
Landlord covenants that upon Tenant paying the Rent and all other charges
payable by Tenant hereunder and the performance of all the other terms,
covenants, and conditions contained in this Lease on Tenant's part to be
performed, Tenant shall peaceably and quietly enjoy the Premises, without
hindrance, ejection or molestation by any persons lawfully claiming under
Landlord, subject to the other terms, covenants and conditions of this Lease
and to all Superior Leases or Superior Mortgages to which this Lease may be or
become subject and subordinate. Landlord hereby represents that it is well
seized and possessed of the Premises and has a lawful right to enter into this
Lease.
ARTICLE NINETEEN
NO WAIVER
SECTION 19.01 NO WAIVER. The failure of either party to seek redress
for the violation of, or to insist upon the strict performance of any of the
terms, covenants, or conditions contained in this Lease on the other party's
part to be so performed, or any of the Rules and Regulations of the Building
shall not constitute a waiver thereof, and the first party shall have all
remedies provided herein and by applicable law with respect to any subsequent
act, which would have originally constituted a default pursuant to the terms
of this Lease. The receipt by Landlord of any installment of Rent and other
charges with knowledge of the breach of any of Tenant's terms,
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covenants, or conditions shall not be deemed a waiver of such breach. No
term, covenant or condition of this Lease, on either party's part to be
performed, shall be deemed to have been waived by the other party unless such
waiver be in writing and signed by the other party. No payment by Tenant or
receipt by Landlord of an amount less than Rent or other charges then payable
shall be deemed to be other than on account of Rent and other charges then
owing by Tenant, and shall be applied in any manner that Landlord may elect.
No endorsement or statement on any check or any letter accompanying any check
or payment of any installment of Rent or other charges shall be deemed binding
on Landlord or constitute an accord and satisfaction, and Landlord may cash
such check or payment without prejudice to Landlord's right to recover the
full amount of Rent or other charges then owing by Tenant, and Landlord shall
be entitled to pursue each and every remedy in this Lease provided at law or
in equity. The receipt and retention by Landlord of a sum equal to Rent and
other charges from anyone other than Tenant shall not constitute a waiver by
Landlord of provisions contained in Article Thirteen, or the acceptance of
such other person as Tenant, or a release of Tenant from the further
performance the terms, covenants, and conditions herein to be performed by
Tenant. It is specifically covenanted and agreed by Tenant that the failure
of Landlord to bill for or collect any installment of Rent or other charges in
a timely manner shall not be construed as a waiver of Landlord's right to
collect any Rent or other charges at any time during the Lease Term or
thereafter. Tenant's covenants as provided in the preceding sentence shall
survive the Expiration Date or the earlier termination of the Lease Term.
SECTION 19.02 NO SURRENDER IMPLIED. No act or failure to act by
Landlord or Landlord's agents, employees, servants, contractors or
subcontractors shall constitute an actual or constructive eviction by
Landlord, nor shall such act or failure to act be deemed an acceptance of a
surrender of the Premises, and no agreement to accept the surrender of the
Premises shall be valid unless in writing signed by Landlord. No agent,
employee, servant, contractor or subcontractor employed by Landlord shall have
the power to accept the keys for the Premises prior to the Expiration Date or
such earlier termination as shall have been agreed to in writing. The
delivery of the keys to the Premises, except as provided in the preceding
sentence, shall not operate as a termination of the Lease or a surrender of
the Premises. In the event Tenant at any time desires to have Landlord sublet
the Premises for Tenant's account, Landlord or anyone authorized by Landlord
to act on Landlord's behalf is hereby authorized to receive said keys for such
purpose without releasing Tenant from any of Tenant's obligations pursuant to
this Lease, and Tenant hereby releases Landlord from any liability for loss of
or damage to any of Tenant's Property in connection with such subletting.
ARTICLE TWENTY
BROKER
Tenant covenants, warrants and represents that there is no broker
involved in this Lease except as set forth in Section 2.01. Landlord agrees
to be responsible for the broker's fee due said identified broker, if any.
Tenant agrees to indemnify and hold harmless Landlord against
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and from any claims for any brokerage commissions and all costs, expenses and
liabilities in connection therewith, including, without limitation, attorneys'
fees and expenses, arising out of any conversations or negotiations had by
Tenant with any broker other than the broker identified above.
ARTICLE TWENTY-ONE
NOTICES
Any notice, statement, demand, consent, approval, request or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable law
or requirement of public authority, shall be in writing (whether or not so
stated elsewhere in this Lease) and shall be (i) hand-delivered, effective
upon receipt, or (ii) sent by United States Express Mail or by private
overnight courier, effective upon receipt deemed effective on the next day, or
(iii) served by certified or registered mail), postage prepaid, return receipt
requested, deemed effective on the day of actual delivery as shown by the
addressee's return receipt or the expiration of five (5) days after the date
of mailing, whichever is the earlier in time; addressed to the respective
party at the address set forth in Section 2.01 above. Either party may, by
notice as aforesaid, designate a different address or addresses for notices,
statements, demands or other communications intended for it. The grace period
for curing of defaults shall commence on the date of receipt of notice thereof
from Landlord.
ARTICLE TWENTY-TWO
SUBORDINATION, ATTORNMENT AND
NOTICE TO MORTGAGEES AND GROUND LESSORS
SECTION 22.01 SUPERIOR MORTGAGEES AND SUPERIOR LESSORS. This Lease, and
all rights of Tenant hereunder, are and shall be subject and subordinate to
any mortgages or ground leases which may now or hereafter affect the Building
and/or Land and to all renewals, modifications, replacements and extensions
thereof. This Section shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination,
Tenant shall promptly execute, acknowledge and deliver any instrument that
Landlord or the holder of any such mortgage or ground lease or any of their
respective successors in interest may reasonably request to evidence such
subordination. Any mortgage to which this Lease is, at the time referred to,
subject and subordinate is herein called a "SUPERIOR MORTGAGE" and the holder
of a Superior Mortgage is herein called a "SUPERIOR MORTGAGEE." Any ground
lease to which this Lease is subordinate is herein called a "SUPERIOR LEASE"
and the holder of a Superior Lease is a "SUPERIOR LESSOR." Tenant agrees, in
the event of any proceeding in foreclosure of any such Superior Mortgage or
agreement to convey title by deed in lieu of foreclosure or in the event a
Superior Lessor obtains possession of the Building due to the termination of
the Superior Lease, Tenant will attorn to any such Superior Mortgagee or
Superior Lessor, without any deductions or set-offs whatsoever if so requested
to do so and to recognize such successor as Landlord under the Lease provided
that such successor offers to recognize this Lease. Not in limitation, Tenant
will execute a Subordination Agreement in the form attached to this Lease as
EXHIBIT E.
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SECTION 22.02 RIGHTS OF SUPERIOR MORTGAGEES AND SUPERIOR LESSORS. If
any act or omission of Landlord would give Tenant the right, immediately or
after lapse of a period of time, to cancel or terminate this Lease, or to
claim a partial or total eviction, Tenant shall not exercise such right (a)
until it has given written notice of such act or omission to Landlord and each
Superior Lessor or Superior Mortgagee whose name and address shall previously
have been furnished to Tenant, and (b) until a reasonable period for remedying
such act or omission shall have elapsed following the giving of such notice
and following the time when such Superior Lessor or Superior Mortgagee shall
have become entitled under such Superior Lease or Superior Mortgage to remedy
the same (which reasonable period shall in no event be less than the period to
which Landlord would be entitled under this Lease or otherwise, after similar
notice, to effect such remedy), provided such Superior Lessor or Superior
Mortgagee shall with due diligence give Tenant notice of intention to, and
commence and continue to, remedy such act or omission.
SECTION 22.03 MODIFICATIONS ON DEMAND OF MORTGAGEE. If any Superior
Lessor or Superior Mortgagee shall require any modification(s) of this Lease,
Tenant shall, at Landlord's request, promptly execute and deliver to Landlord
such instruments effecting such modification(s) as Landlord shall require,
provided that such modification(s) do not adversely affect in any material
respect any of Tenant's rights under this Lease.
ARTICLE TWENTY-THREE
ESTOPPEL CERTIFICATE, NOTICE OF LEASE
SECTION 23.01 ESTOPPEL CERTIFICATE. Tenant agrees, at any time, and
from time to time at no cost or expense to Landlord and upon not less than
five (5) days' prior written notice from Landlord, to execute, acknowledge and
deliver to Landlord, addressed to Landlord a statement certifying: (a) the
Commencement Date and the Expiration Date, (b) that this Lease is in full
force and effect and has not been assigned, modified, supplemented or amended
(except by such writings as shall be stated), (c) that all conditions under
this Lease to be performed by Landlord have been satisfied, (d) that there are
no defenses or offsets against the enforcement of this Lease by Landlord, or
stating those claimed by Tenant, (e) the amount of advance rental, if any (or
none if such is the case), paid by Tenant, (f) the date to which rental has
been paid, and (g) the amount of security deposited with Landlord, provided,
however, that Tenant shall not be required to make written declarations as to
any matters which to its knowledge are inaccurate or not true. It is hereby
intended that any statement delivered by Tenant pursuant to this Section 23.01
may be relied upon by Landlord or a purchaser of Landlord's interest in the
Land and/or Building and by any Superior Lessor or Superior Mortgagee or
prospective mortgagee of the Land and/or Building and by any prospective
landlord under a ground or underlying lease affecting the Land and/or Building
or both.
SECTION 23.02 NOTICE OF LEASE. At the request of either party, Landlord
and Tenant shall promptly execute, acknowledge and deliver a notice of lease
sufficient for recording in accordance with the statutes of the State of
Connecticut. In no event shall this Lease be recorded and if Tenant records
this Lease in violation of the terms hereof, Landlord shall have the option to
terminate this Lease upon notice to Tenant..
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ARTICLE TWENTY-FOUR
TRANSFER OF LANDLORD'S INTEREST AND LIMITATION OF OBLIGATION
SECTION 24.01 LANDLORD'S TRANSFEREE BOUND. This Lease shall be binding
upon Tenant, its heirs, successors and assigns. The obligations of Landlord
under this Lease shall not be binding upon Landlord with respect to any period
subsequent to the transfer of its interest in the Premises, and in the event
of such transfer, said obligations shall thereafter be binding upon each
transferee of the interest of Landlord in the Premises but only with respect
to the period beginning with such transfer and ending with a subsequent
transfer by such transferee.
SECTION 24.02 TENANT'S REMEDY LIMITED. Tenant shall look only to
Landlord's estate and property in the Land and Building (or the proceeds
thereof) for the satisfaction of Tenant's remedies for the collection of a
judgment or other judicial process requiring the payment of money by Landlord
in the event of any default by Landlord hereunder, and no other Property or
assets of Landlord or its partners or principals, disclosed or undisclosed,
shall be subject to the levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use or occupancy of
the Premises. Notwithstanding anything provided in this Lease or provided at
law or in equity to the contrary, in the event that Tenant shall obtain a
monetary judgment against Landlord in any action or proceeding, Tenant shall
seek satisfaction of such a judgment only from Landlord's estate and interest
in the Land and Building (or the proceeds from the sale thereof) and no other
property or other assets belonging to Landlord shall be subject to levy,
execution or other enforcement procedure for the satisfaction of any such
judgment arising from the relationship of Landlord and Tenant hereunder to
Tenant's use and occupancy of the Premises. Tenant's covenants contained in
this Article Twenty-Four shall survive the Expiration Date or the earlier
termination of the Lease Term.
SECTION 24.03 LANDLORD'S LIABILITY LIMITED. Neither Landlord nor any
partner, director, officer, agent, servant or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to (by vandalism, illegal entry, steam, gases, water, rain,
snow, electricity or any other causes), or loss (by theft or otherwise) of,
any property of Tenant or of any other person, irrespective of the cause of
such injury, damage or loss, unless caused by or due to the primary negligent
act or omission of Landlord, its agents, servants or employees. Further,
neither Landlord nor any partner, director, officer, agent, servant or
employee of Landlord shall be liable (a) for any such damage caused by other
tenants or persons in, upon or about the Building, or caused by operations in
construction of any private, public or quasi-public work; or (b) in the event
of any such primary negligent act of Landlord, for consequential damages
arising out of any loss of use of the Premises or any equipment or facilities
therein by Tenant or any person claiming through or under Tenant.
SECTION 24.04 HOLD HARMLESS. Tenant shall indemnify and save harmless
Landlord against and from (i) any and all claims against Landlord of whatever
nature arising from any act, omission or negligence of Tenant, its
contractors, licensees, agents, servants, employees, invitees and/or visitors,
(ii) all claims against Landlord arising from any accident, injury or damage
whatsoever caused to any person or to the property of any person and occurring
during the Lease
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Term in, around or about the Premises, (iii) all claims against Landlord
arising from any accident, injury or damage occurring outside of the Premises,
but within or about the Land and Building where such accident, injury or
damage results or is claimed to have resulted from an act or omission of
Tenant, its contractors, licensees, agents, servants, employees, invitees
and/or visitors, and (iv) any breach, violation or non-performance of any of
the terms, covenants, and conditions contained in this Lease on the part of
Tenant to be fulfilled, kept, observed and performed. This indemnity and hold
harmless covenant shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses (including attorneys'
fees and disbursements) of any kind or nature incurred in connection with any
such claim or proceeding brought thereon, and the defense thereof by Landlord.
This indemnity and hold harmless covenant shall survive the Expiration Date or
the earlier termination of the Lease Term for acts or omissions alleged to
have occurred during the Lease Term and for any period of time prior to the
Commencement Date of the Lease during which Tenant was given access to the
Premises.
ARTICLE TWENTY-FIVE
PARKING
During the Term, Tenant is entitled to the use for itself, and its
employees, agents, customers and invitees a certain number of Parking Spaces
as identified in Section 2.01 hereof. This right to use is ancillary to this
Lease, cannot be severed from this Lease and confers upon Tenant no rights
other than the explicit right to use set forth herein, subject to the Rules
and Regulations of this Building or any rules and regulations applicable to
any off site parking area. No specific Parking Spaces shall be reserved for
Tenant.
ARTICLE TWENTY-SIX
MISCELLANEOUS
SECTION 26.01 INTEGRATION CLAUSE. This Lease, together with all
Exhibits and Schedules attached hereto which by this reference are hereby
fully incorporated into this Lease, contains the entire agreement between
Landlord and Tenant with respect to the Premises and all prior agreements
between the parties hereto are merged into this Lease except for covenants in
any such agreements that be their terms are said to survive, and any
agreements hereafter made between Landlord and Tenant with respect to the
Premises shall be ineffective to change, modify, waive, release, discharge,
terminate or effect any provision of this Lease, in whole or in part, unless
such agreement is in writing and signed by the party against whom enforcement
is sought.
SECTION 26.02 EFFECT OF PARTIAL INVALIDITY. If any of the provisions of
this Lease, or the application thereof to any person or circumstances, shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such provision or provisions to persons or circumstances
other than those as to whom or which it is held invalid or unenforceable,
shall not be affected thereby, and every provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
<PAGE>
-36-
SECTION 26.03 WAIVER OF PREJUDGMENT REMEDIES. Tenant hereby
acknowledges that this Lease constitutes a commercial transaction, as such
term is used and defined in Connecticut General Statutes 52-278(a), and Tenant
hereby waives any prejudgment remedy hearing as provided in Connecticut
General Statutes 52-278(a) through 52-278(g), inclusive, and authorizes
Landlord's attorney to issue a writ for a prejudgment remedy without a court
order, provided the complaint shall set forth a copy of this waiver.
SECTION 26.04 CHOICE OF LAW. This Lease shall be governed in all
respects by the laws of the State of Connecticut.
SECTION 26.05 TENANT DEFINED. If the term "Tenant," as used in this
Lease, refers to more than one person, then, as used in this Lease, said term
shall be deemed to include all of such persons or any of them; if any of the
obligations of Tenant pursuant to this Lease are guaranteed, the term "Tenant"
shall be deemed to include Tenant, the Guarantor, or either or both of them;
and if this Lease shall have been assigned, the term "Tenant" shall be deemed
to include Tenant, the assignee, or either or both of them.
SECTION 26.06 RULES AND REGULATIONS. Tenant, its contractors,
employees, agents, visitors, guests and licensees shall faithfully observe and
comply with all the Rules and Regulations; provided, however, that in the case
of any conflict between the provisions of this Lease and any such Rules or
Regulations, the provisions of this Lease shall control, and provided,
further, that nothing contained in this Lease shall be construed to impose any
obligation or duty upon Landlord to enforce the Rules and Regulations or the
terms, covenants or conditions in any other leases against any other tenants,
and provided, further, that Landlord shall not be liable to Tenant for
violation of the Rules and Regulations and/or the terms of any other leases by
any other tenants, their servants, employees, agents, visitors, invitees,
subtenants or licensees.
SECTION 26.07 INDEPENDENT OBLIGATIONS. This Lease and the obligations
of Tenant to pay Rent and other charges, and to perform and comply with all
other terms, covenants and conditions on the part of Tenant to be performed
and complied with, shall not be affected, impaired or excused because of
Landlord's delay or failure in performing or complying with any of the terms,
covenants and conditions on the part of Landlord to be performed or complied
with, or in Landlord's delay or failing to furnish any service or facility for
any reason(s) beyond the reasonable control of Landlord, including, without
limiting the generality of the foregoing, strikes, lockouts or labor problems,
pre-emption in connection with an emergency by any Governmental Authority, or
by reason of any rule, order or regulation of any department or subdivision
thereof, of any Governmental Authority, or by reason of the conditions of
supply and demand which have been or shall be affected by war or other
emergency or general market conditions, provided that this paragraph shall in
no event affect Tenant's other rights hereunder where Tenant shall not be able
to use the Premises for 180 consecutive days.
SECTION 26.08 APPORTIONMENTS AND PRORATIONS. Any apportionments or
prorations of Base Rent or Additional Rent to be made under this Lease shall
be computed on the basis of a three hundred sixty (360) day year, with twelve
(12) months of thirty (30) days each.
<PAGE>
-37-
SECTION 26.09 LANDLORD'S CONSENT. If Tenant requires Landlord's consent
to perform any act pursuant to the terms of this Lease, Landlord, in its
reasonable discretion, may refer such a matter to its attorneys and Tenant
agrees to reimburse Landlord for its reasonable attorneys' fees and
disbursements as an item of Additional Rent and shall be paid by Tenant within
ten (10) days following written demand.
SECTION 26.10 SIGNS. Unless Landlord shall have given its prior written
consent, Tenant shall not install, paint, inscribe or maintain any lettering,
name, sign, business designation, advertising or publicity device on the Land
or on any exterior window or on any other interior or exterior portion of the
Building. Tenant shall have obtained Landlord's prior approval as to
location, size, color and style, which approval shall not be unreasonably
withheld.
SECTION 26.11 KEYS. On or before the Commencement Date, Tenant will
furnish Landlord with one (1) full set of keys which will permit Landlord
entry to all portions of the Premises. Such keys may be utilized by Landlord
in the performance of any of Landlord's obligations or in connection with any
of Landlord's rights as provided herein or by operation of law or otherwise,
provided Landlord shall have no duty to enter, protect or defend the Premises,
unless expressly provided herein. In the event Tenant shall cause the locks
to any doors or entrance ways to the Premises to be changed at any time during
the Term, Tenant shall promptly (within 24 hours) deliver to Landlord
substitute keys which will permit Landlord to unlock the same and will permit
Landlord with equivalent entry as existed prior to such change. If Tenant
fails to deliver such substitute keys and Landlord is required or entitled to
enter the Premises for whatever reason, Landlord shall suffer no liability to
Tenant by reason of any forced entry or damage to the Premises resulting from
its entry without keys and Tenant shall promptly (within 10 days) reimburse
Landlord for any expenses Landlord may incur in connection with such entry to
the Premises under such circumstances.
SECTION 26.12 HOLDOVER. In the event Tenant shall remain in possession
of the Premises after the Expiration Date, such holdover shall not be deemed
to extend or renew the Term, provided that notwithstanding any other provision
hereof, Tenant shall be liable for the payment of Rent, increased to include
Base Rent at a rate which equals two hundred (200%) percent of the Base Rent
charged Tenant immediately prior to such holdover until such holding over is
terminated by the disposition of Tenant. The provisions of this Section shall
not operate as a waiver by Landlord of any right of re-entry or any other
remedies against Tenant as provided in this Lease or by law. In addition, in
the event of such holdover, Tenant agrees to indemnify and hold Landlord
harmless from all loss or liability resulting from such holdover, including,
without limiting the generality of the foregoing, any claims made by any
succeeding tenant founded on such holdover.
SECTION 26.13 TIME OF ESSENCE. Time is of the essence with respect to
the performance of each and every term, covenant and agreement under this
Lease to be performed by Tenant concerning the payment of Rent or other
charges.
<PAGE>
-38-
SECTION 26.14 CAPTIONS; SECTIONS; GENDER. The captions contained herein
have been inserted for convenience only and shall not have the effect or
modifying, amending or changing the express terms and provisions of this
Lease. Whenever used, the singular number shall include the plural, the
plural the singular, and use of any gender shall include all genders.
SECTION 26.15 DELIVERY OF LEASE. The preparation of a draft of this
Lease shall not be deemed an offer. No rights are to be conferred upon Tenant
until this Lease has been signed by Landlord and an executed copy this Lease
has been delivered to Tenant. This Lease is a joint effort of both parties
hereto and is not to be construed against either party as having been prepared
by such party.
SECTION 26.16 ARBITRATION. Tenant may, at any time when not in default
in the payment of any Rent, request arbitration of any matter in dispute where
arbitration is expressly provided for in this Lease, and Landlord may at any
time request arbitration of any matter in dispute. The party requesting
arbitration shall do so by giving notice to that effect to the other party,
specifying in said notice the nature of the dispute, and said dispute shall be
determined in the City of Hartford, by a single arbitrator, in accordance with
the rules then outstanding of the American Arbitration Association (or any
organization which is the successor thereto). The award in such arbitration
may be enforced on the application of either party by the order of a judgment
of a court of competent jurisdiction. All costs and expenses associated with
such arbitration shall be allocated by the arbitrator.
SECTION 26.17 REPRESENTATION AS TO TENANT'S LEGAL STATUS. Tenant hereby
represents that it is a duly organized and validly existing corporation in
good standing under the laws of the State of Delaware and will promptly
confirm the same upon request of Landlord in the manner so requested by
Landlord. Tenant hereby authorizes Jeffrey Hazarian, its Chief Financial
Officer, to execute this Lease on behalf of Tenant and to take all other acts
and sign all other documents and instruments necessary to effectuate the
transactions contemplated by this Lease.
SECTION 26.18 NO RIGHTS UPON DEFAULT. Notwithstanding anything herein
that may be construed to the contrary, Tenant shall no right to exercise any
option or right herein granted to Tenant if Tenant is in default hereof at the
time of such attempted exercise. By way of example and not by way of
limitation, the types of Tenant rights and options contemplated by this
paragraph include rights to (i) lease additional space, (ii) renew the term
hereof, (iii) reduce the amount of space leased hereunder, (iv) purchase the
Building or the property on which the Building is situated or (v) require
Landlord to provide additional tenant fit-out.
SECTION 26.19 SUBLEASING EXPENSES. Tenant shall reimburse Landlord for
all costs and expenses, including Landlord's reasonable attorneys' fees, in
connection with Tenant's desire to assign or sublease the Premises.
<PAGE>
-39-
SECTION 26.20 HOTEL CONFERENCE FACILITIES. During the term hereof and
while the Hotel is owned by the then Landlord hereunder, Tenant shall have the
right to use the Hotel's conference facilities at a discount of 10% from rates
then charged generally (but always subject to any rules applicable thereto,
such as availability). Tenant shall keep this provision in strictest
confidence, the breach of which shall terminate this provision.
IN WITNESS WHEREOF, the parties have hereunto set their hands effective
as of the date first set forth above.
Signed, Sealed and Delivered LANDLORD:
in the Presence of:
GOODWIN SQUARE LLC
By: Connecticut General Life
Insurance Company, on behalf of
its Separate Account Connecticut
Its Manager
/s/ MONA A. LEES
- ----------------------------------- By: CIGNA Investments, Inc.
Its Authorized Agent
/s/ KATHLEEN B. CHRISTENSEN By: /s/ JAMES H. ROGERS
- ----------------------------------- -----------------------
Name: James H. Rogers
Title: Managing Director
- -----------------------------------
TENANT:
TENERA, INC.
/s/ JAMES E. ROBISON By: /s/ JEFFREY R. HAZARIAN
- ----------------------------------- --------------------------------
Its Chief Financial Officer
(Duly Authorized)
- -----------------------------------
<PAGE>
-40-
STATE OF CONNECTICUT)
) ss.
COUNTY OF HARTFORD )
On this 22nd day of Nov, 1996, personally appeared James H. Rogers, as
Managing Director of Cigna Investments, Inc., agent of Connecticut General
Life Insurance Company, the manager of Goodwin Square LLC, signer and sealer
of the foregoing instrument who acknowledged the same to be his free act and
deed, and the free act and deed of said organization, before me.
/s/ DONNA M. LUCENTE
------------------------------------
Notary Public/Commissioner of the
Superior Court
[Notary Seal stamped here]
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN FRANCISCO )
On this 19th day of November, 1996, personally appeared Jeffrey Hazarian
of TENERA, a Delaware corporation, signer and sealer of the foregoing
instrument who acknowledged the same to be his free act and deed and the free
act and deed of said corporation before me.
/s/ LAURIE MCNAIR
------------------------------------
Notary Public/Commissioner of the
Superior Court
[Notary Seal stamped here]
<PAGE>
EXHIBIT A
DESCRIPTION OF PREMISES
<PAGE>
[Diagram of floor plan of leased space]
<PAGE>
EXHIBIT B
DESCRIPTION OF THE LAND
ALL THAT CERTAIN piece or parcel of land located in the Town of Hartford,
County of Hartford and State of Connecticut being more particularly bounded
and described as follows:
Beginning at a point which marks the southwest corner of the intersection
of Asylum Street and Haynes Street; thence S 08 degrees l7' 46" W along the
westerly line of Haynes Street a distance of Two Hundred Sixty-Four and eighty
one-hundredths (264.80) feet to a point; thence N 87 degrees 33' 59" W along
the northerly line of Pearl Street a distance of One Hundred Five and sixty-
three one hundredths (105.63) feet to a point; thence N 08 degrees 25' 00" W
along land now or formerly of the Roman Corporation a distance of Eighty-Six
and no one-hundredths (86.00) feet to a point; then N 87 degrees 28' 31" W
along lands now or formerly of the Roman Corporation, 253 Asylum Street
Associates Limited Partnership and Dora M. Bartley, partly by each, a distance
of One Hundred Twenty-Six and no one-hundredths (126.00) feet to a point; then
N 07 degrees l9' 21" E along the easterly line of Ann Street a distance of One
Hundred Thirteen and sixty-seven one-hundredths (113.67) feet to a point;
thence S 87 degrees 28' 31" E along lands now or formerly of Louis Mornealt,
et al., Anthony B. Cacase, et al., and Asylum Associates Limited Partnership,
partly by each, a distance of One Hundred Twenty-Eight and four one-hundredths
(128.04) feet to a point; then S 08 degrees 25' 00" W along land now or
formerly of Asylum Associates Limited Partnership a distance of Seventy-Six
and forty-eight one-hundredths (76.48) feet to a point; then S 81 degrees ll'
39" E along the southerly line of Asylum Street a distance of One Hundred Four
and fifty one-hundredths (104.50) feet to the point or place of beginning.
<PAGE>
EXHIBIT C
LANDLORD'S WORK
<PAGE>
[Diagram of floor plan of landlord's work to be done]
<PAGE>
EXHIBIT D
RULES & REGULATIONS
1. The halls, corridors, passages, courts, atrium, outside sidewalks,
lobbies, concourses, ramps, staircases, escalators and elevators shall not be
obstructed by Tenant, or the employees, agents, servants, visitors or
licensees of Tenant, or used for any purpose other than ingress and egress to
and from the Demised Premises. No bicycles or motorcycles shall be brought
into the Building or kept in the Demised Premises without the written consent
of the Landlord.
2. No freight, furniture, or bulky matter of any description will be
received into the Building or carried into the elevators except in such a
manner, during such hours and using such elevators and passageways as may be
approved by Landlord. The installation and moving of such freight, furniture
or bulky material of any description shall be made upon previous notice to
Landlord, and the persons employed by Tenant for such work must be reasonably
acceptable to Landlord. Tenant may, subject to the provisions of the
immediately preceding sentence, move freight, furniture, bulky matter or other
material into or out of the premises on Saturdays between the hours of 8:30
a.m. and 6:00 p.m. provided tenant pays the additional cost, if any, incurred
by Landlord for security guards and other expenses arising by reason of such
move by Tenant. Any hand trucks, carryalls, or similar appliances used for
the delivery or receipt of merchandise or equipment shall be equipped with
rubber tires, side guards and such other safeguards as Landlord shall require.
3. Only persons authorized by Landlord will be permitted to furnish
janitorial services, floor polishing, carpet cleaning, and other similar
services to Tenant, and only at hours and under reasonable regulations fixed
by Landlord. Tenant shall use no other method of heating or cooling than that
supplied by Landlord.
4. Tenant, or the employees, agents, servants, visitors or licensees
of Tenant, shall not at any time, place, leave or discard any rubbish, paper
articles or objects of any kind whatsoever outside the doors of the Demised
Premises or in the corridors or passageways of the Building. No animals or
birds shall be brought or kept in or about the Building.
5. All blinds on exterior windows shall remain down at all times; and
the windows in the Demised Premises shall not be covered or obstructed by
Tenant, nor shall any bottles, parcels or other articles be placed on the
windowsills or in the halls or in any other part of the Building, nor shall
any article be thrown out of the doors or windows of the Demised Premises.
6. Tenant shall not lay linoleum or other similar floor covering so
that the same shall come in direct contact with the floor of the Demised
Premises, and if linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall be first fixed to the
floor by a paste or other material that may easily be removed with water, the
use of cement or other similar adhesive being expressly prohibited.
<PAGE>
-2-
7. Canvassing, soliciting or peddling in the Building is prohibited
and Tenant shall cooperate to prevent same.
8. Any person in the Building will be subject to identification by
employees and agents of Landlord. All persons in or entering the Building
shall be required to comply with the security policies of the Building. If
Tenant desires any additional security service for the Demised Premises,
Tenant shall have the right (with the advance written consent of Landlord) to
obtain such additional service at Tenant's sole cost and expense. Tenant
shall keep doors to unattended areas locked and shall otherwise exercise
reasonable precautions to protect property from theft, loss or damage.
9. Only workmen employed by Tenant with Landlord's approval, which
shall not be unreasonably withheld or delayed, or contracted with by Landlord
for Tenant may be employed for repairs, installations, alterations, painting,
material moving and other similar work that may be done in or on the Demised
Premises.
10. Tenant shall not bring or permit to be brought or kept in or on
the Demised Premises any inflammable, combustible, corrosive, caustic,
poisonous, or explosive substance, or cause or permit any odors to permeate in
or emanate from the Demised Premises or make, or permit to be made, unseemly
or disturbing noises or interfere with other tenants or those having business
with them.
11. Tenant shall not conduct any restaurant, luncheonette, automat or
cafeteria or the sale of service of food or beverages to its employees or to
others. The employees of the Tenant shall not be prohibited from preparing
their individual meals in suitable microwave or other appliances.
12. No boring, driving of nails or screws, cutting or stringing of
wires shall be permitted in the common areas of the Building, except with the
prior written consent of Landlord, which consent shall not be unreasonably
withheld.
13. Tenant shall give immediate notice to Landlord in case of theft,
unauthorized solicitation, or accident in the Demised Premises or in the
Building or of defects therein or in any fixtures or equipment, or of any
known emergency in the Building.
14. Tenant shall not use the Demised Premises or permit the Demised
Premises to be used for photographic, multilithor, multigraphic reproductions
except in connection with its own business and not as a service for other
except with Landlord's prior written permission.
15. Tenant shall not use or permit any portion of the Demised
Premises to be used as an office for a public stenographer or typist, offset
printing, the sale of liquor or tobacco, a barber or manicure shop, an
employment bureau, a labor union office, a doctor's or dentist's office, a
dance or music studio, any type of school, or for any use other than those
specifically granted in the lease.
<PAGE>
-3-
16. Tenant shall not advertise for laborers giving the Demised
Premises as an address, nor pay such laborers at a location in the Demised
Premises.
17. The requirements of Tenant will be attended to only upon
application at the office of Landlord in the Building. Employees of Landlord
shall not perform any work or do anything outside of their regular duties,
unless under special instructions from the office of Landlord.
18. Tenant shall not place a load upon any floor of the Demised
Premises which exceeds the live load per square foot which such floor was
designed to carry and which is allowed by law. Business machines and
mechanical and electrical equipment belonging to Tenant which cause noise,
vibration, electrical or magnetic interference, or any other nuisance that may
be transmitted to the structure or other portions of the building, shall be
placed and maintained by Tenant at Tenant's expense in settings of cork,
rubber, spring type, or other vibration eliminators sufficient to eliminate
noise or vibration.
19. Tenant shall not place, install, or operate within the Demised
Premises or any other part of the Building any engine or machinery, or conduct
mechanical operations therein, without the written consent of Landlord.
20. No portion of the Demised Premises or any other part of the
Building shall at any time be used or occupied as sleeping or lodging
quarters.
21. For the purpose of the Lease, holidays shall be deemed to mean
and include the following: (a) New Year's Day; (b) Memorial Day; (c)
Independence Day; (d) Labor Day; (e) Thanksgiving Day; (f) Christmas Day; (g)
any other generally recognized holidays taken by tenants occupying at least
one-half (1/2) of the Gross Rentable Area of the Building.
22. Tenant shall at all times keep the Demised Premises neat and
orderly.
23. Tenant shall comply with security regulations as Landlord may
from time to time adopt. Such regulations may provide for the carrying and/or
display of security passes by any occupants of the Building during non-working
hours and non-business days and such other days and hours as Landlord may deem
necessary or desirable for the orderly management of the Building.
24. Landlord reserves the right to rescind, and reasonably amend any
rules or regulations, to add reasonable new rules or regulations, and to waive
any rules or regulations with respect to any tenant or tenants.
25. Tenant shall not permit the restriction of air flow from heating,
ventilation or air conditioning diffusers by objects such as papers, books,
furniture, wall hangings, etc.
26. Smoking or carrying lighted cigars, pipes or cigarettes in the
elevators of the Building is prohibited.
<PAGE>
-4-
27. Tenant shall not make any alterations, changes or improvements to
or in the Demised Premises which are not consistent with planned and existing
physical conditions in the Building or which would affect any portion of the
Building other than the Demised Premises. Without limiting the generality of
the foregoing, Tenant shall not make any such alterations, changes or
additions which would affect the heating, ventilating, air conditioning,
electrical, plumbing, fire safety, security or other systems of the Building
without in its sold discretion of such alteration, change, or improvement
would, in the opinion of Landlord, increase the Operating Expense of the
Building or have an adverse affect on the furnishing of such services to other
tenants of the Building.
<PAGE>
EXHIBIT E
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made this _____ day of _________, 199_, between , a
Connecticut __________ with offices at _____________________________,
Connecticut (hereinafter called "Tenant"), _________________, a ___________
having its principal office and place of business at _________ Connecticut
(hereinafter called "Lender"), and Goodwin Square Associates Limited
Partnership, a limited partnership organized and existing under the laws of
the State of Connecticut (hereinafter referred to as "Landlord").
WITNESSETH
WHEREAS, the Tenant has entered into a certain lease (the "Lease") dated
_______________, 199_, with Landlord covering premises within a certain
building known as Goodwin Square (the "Premises"); and
WHEREAS, the Lender has agreed to make a loan secured by a mortgage (the
"Mortgage") covering the Premises to the Landlord; and
WHEREAS, it is a condition precedent to obtaining said loan or was a
condition of said loan, that said Mortgage securing said loan be a lien or
charge upon the Premises unconditionally prior and superior to the Lease and
leasehold interest of Tenant; and
WHEREAS, Tenant acknowledges when it is recorded that said Mortgage
constitutes, or will constitute, a lien or charge upon the Premises which is,
or should be, unconditionally prior and superior to the Lease and leasehold
interest of Tenant; and
WHEREAS, Lender has been requested by Tenant and by Landlord to enter
into a non-disturbance agreement with Tenant;
NOW THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto mutually covenant and agree as
follows:
1. The Lease and any extensions, renewals, replacements or
modifications thereof, and all of the right, title and interest of the Tenant
in and to said Premises are and shall be subject and subordinate to the
Mortgage and to all of the terms and conditions contained herein, and to any
renewals, modifications, replacements, consolidations and extensions thereof.
2. Lender consents to the Lease and, in the event of foreclosure of
said Mortgage, or in the event Lender comes into possession or acquires title
to the Premises as a result of the enforcement of foreclosure of the Mortgage
or the note secured thereby, or as a result of any other means, Lender agrees
to recognize Tenant and further agrees that Tenant shall not be disturbed in
its possession of the Premises for any reason other than one which would
entitle the Landlord to terminate the Lease under its terms or would cause,
without any further action by
<PAGE>
-2-
such Landlord, the termination of the Lease or would entitle such Landlord to
dispossess the Tenant from the Premises.
3. Tenant agrees with Lender that if the interests of Landlord in the
Premises shall be transferred to and owned by Lender by reason of foreclosure
or other proceedings brought by it, or any other manner, or shall be conveyed
thereafter by Lender or shall be conveyed pursuant to a foreclosure sale of
the Premises (and for purposes of this paragraph, the term "Lender" shall be
deemed to include any grantee of the Lender or purchaser at foreclosure sale),
Tenant shall be bound to Lender under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof remaining and any
extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if Lender were
the Landlord under the Lease, and Tenant does hereby attorn to Lender as its
Landlord, said attornment to be effective and self-operative without the
execution of any further instruments on the part of any of the parties hereto
immediately upon Lender succeeding to the interest of the Landlord in the
Premises. Tenant agrees, however, upon the election of and written demand by
Lender within sixty (60) days after Lender receives title to the Premises, to
execute an instrument in confirmation of the foregoing provisions,
satisfactory to Lender, in which Tenant shall acknowledge such attornment and
shall set forth the terms and conditions of its tenancy.
4. Tenant agrees with Lender that if Lender shall succeed to the
interest of Landlord under the Lease, Lender shall not be (a) liable for any
action or omission of any prior landlord under the Lease, or (b) subject to
any offsets or defenses which Tenant might have against any prior landlord, or
(c) bound by any rent or additional rent which Tenant might have paid for more
than the current month to any prior landlord, or (d) bound by any security
deposit which Tenant may have paid to any prior landlord, unless such deposit
is in an escrow fund which fund has been deposited with a Connecticut banking
institution pursuant to a certain Pledge and Escrow Agreement to which Lender
is a party, or (e) bound by any amendment or modification of the Lease made
without Lender's consent, or (f) bound by any provision in the Lease which
obligates the Landlord to erect or complete any building or to perform any
construction work or to make any improvements to the Premises. Tenant further
agrees with Lender that Tenant will not voluntarily subordinate the Lease to
any lien or encumbrance without Lender's consent.
5. In the event that the Landlord shall default in the performance or
observance of any of the terms, conditions or agreements in the Lease, Tenant
shall give written notice thereof to the Lender and the Lender shall have the
right (but not the obligation) to cure such default. Tenant shall not take
any action with respect to such default under the Lease including without
limitation any action in order to terminate, rescind or void the Lease or to
withhold any rental thereunder, for a period of 30 days after receipt of such
written notice thereof by the Lender with respect to any such default capable
of being cured by the payment of money and for a period of 30 days after
receipt of such written notice thereof by the Lender with respect to any other
such default (provided, that in the case of any default which cannot be cured
by the payment of money and cannot with diligence be cured with such 30-day
period because of the nature of such default or because Lender requires time
to obtain possession of the Premises in order to cure the default, if the
Lender shall proceed promptly to attempt to obtain possession of the Premises,
where possession is required, and to cure the same and thereafter shall
prosecute the curing of such
<PAGE>
-3-
default with diligence and continuity, then the time within which such default
may be cured shall be extended for such period as may be necessary to complete
the curing of the same with diligence and continuity).
6. This Agreement shall bind and inure to the benefit of the parties
hereto, their successors an assigns. As used herein the term "Tenant" shall
include the Tenant, its successors and assigns; the words "foreclosure" and
"foreclosure sale" as used herein shall be deemed to include the acquisition
of Landlord's estate in the Premises by voluntary deed (or assignment) in lieu
of foreclosure; and the word "Lender" shall include the Lender herein
specifically named and any of its successors and assigns, including anyone who
shall have succeeded to Landlord's interest in the Premises by, through or
under foreclosure of the Mortgage.
7. This Agreement shall be the whole and only agreement between the
parties hereto with regard to the subordination of the Lease and leasehold
interest of Tenant to the lien or charge of the Mortgage in favor of Lender,
and, with respect to Lender and Tenant only, shall supersede and cancel any
prior agreements as to such, or any, subordination, including, but not limited
to, those provisions, if any, contained in the Lease, which provide for the
subordination of the Lease and leasehold interest of Tenant to a deed or deeds
of trust or to a mortgage or mortgages to be thereafter executed, and shall
not be modified or amended except in writing signed by all parties hereto.
8. Tenant declares, agrees and acknowledges that it intentionally and
unconditionally waives, relinquishes and subordinates the Lease and leasehold
interest in favor of the lien or charge upon said land of the Mortgage above
mentioned to the extent set forth in this Agreement, and, in consideration of
this waiver, relinquishment and subordination, specific loans and advances are
being and will be made and, as part and parcel thereof, specific monetary and
other obligations are being an will be entered into which would not be made or
entered into but for said reliance upon this waiver, relinquishment and
subordination.
9. The use of the neuter gender in this Agreement shall be deemed to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
10. Any notice required or allowed by this Agreement shall be in
writing and shall be sent by certified or registered United States mail,
postage prepaid, return receipt requested:
If to Tenant:
If to Landlord:
If to Lender:
The parties may, by written notice to the others, designate a different
mailing address for notices.
<PAGE>
-4-
IN WITNESS WHEREOF, the parties hereto have placed their hands and seals
the day and year first above written.
Signed and acknowledged in TENANT:
the presence of us:
By:
- ---------------------------- --------------------------------
Its
- ----------------------------
LENDER:
[ ]
By:
- ---------------------------- --------------------------------
Its
- ----------------------------
LANDLORD:
GOODWIN SQUARE LLC
By: Connecticut General Life
Insurance Company, on behalf of
its Separate Account Connecticut
Its Manager
By: CIGNA Investments, Inc.
- ---------------------------- Its Authorized Agent
By:
- ---------------------------- ------------------------
Name:
Title:
<PAGE>
EXHIBIT F
JANITORIAL SERVICES
1. Maintain recycling program, including providing appropriate
receptacles.
DAILY SERVICES
1. Empty wastebaskets and transport collected waste to trash handling
areas. Replace soiler liners, as required.
2. Empty, damp clean and polish all ashtrays - inside and out.
3. Clean and service sand urns.
4. Clean and sanitize water fountains.
WEEKLY SERVICES
1. Spot clean all furniture.
2. Low dust to hand height all horizontal surfaces of equipment,
ledges, sills and baseboards.
3. Dust, spot clean glass and straighten all pictures, frames,
charts, graphs and similar wall hangings.
4. Dust all partitions, doors and door frames.
5. Polish all metal brightwork.
6. Clean and vacuum all metal entrance and elevator saddles.
MONTHLY SERVICES
1. Dust exterior of lighting fixtures.
<PAGE>
-2-
REST ROOM CLEANING
DAILY SERVICES
1. Clean, polish and sanitize all vitreous fixtures, including toilet
bowls, urinals and sinks using a germicidal detergent solution.
2. Clean and polish all chrome fittings and brightwork, including
shelves, flushometers and metal dispensers.
3. Clean and sanitize both sides of toilet seat with a germicidal
detergent.
4. Clean and polish all glass and mirrors.
5. Empty all containers and disposals. Waste and refuse will be
removed to designated areas.
6. Wash and sanitize exterior of all containers.
7. Empty, sanitize and replenish interior of sanitary napkin
containers.
8. Empty and damp clean ashtrays.
9. Remove soil from doors, frames, light switches, kick and push
plates, handles, etc.
10. Refill all dispensers (napkin, soap, tissue, towels, liners,
cups). Supplies to be furnished by Landlord.
11. Spot clean all dispensers and receptacles.
12. Wet mop or wash entire floor with a germicidal disinfectant
cleaning solution.
13. Low dust all horizontal surfaces to hand height. Low dusting
includes sills, moldings, ledges, shelves, frames, vents,
radiators, partitions, etc.
MONTHLY SERVICES
1. Wash and sanitize all partitions, tile walls and enamel surfaces.
<PAGE>
-3-
QUARTERLY SERVICES
1. Dust exterior of light fixtures.
2. High dust above hand height all horizontal surfaces. High dusting
includes shelving, moldings, ledges, partitions, pipes, vents,
heating outlets, etc.
STAIRWAYS
WEEKLY SERVICES
1. Dust mop landings, risers, rails, etc. three times per week.
2. Spot clean soils and spills.
3. Damp mop to control soil build-up.
4. Wash to control soil build-up on all handrails and guard rails in
stairways.
VINYL FLOORS
DAILY SERVICES
1. Police for litter.
WEEKLY SERVICES
1. Dust mop or sweep.
2. Spot mop soil and spills.
3. Damp mop.
CARPETED FLOOR SURFACES
DAILY SERVICES
1. Vacuum clean all traffic areas and obviously soiled carpeted
surfaces.
2. Inspect for spots and stains. Spot clean and remove if possible.
WEEKLY SERVICES
1. Vacuum all exposed difficult areas, such as under desks, wires,
tables, counters, in difficult corners, baseboards and edges.
<PAGE>
-4-
UPON REQUEST
1. Carpet shampooing will be performed and invoiced as an extra cost.
GLASS
DAILY SERVICES
1. Spot clean lobby window glass.
MONTHLY
1. Completely wash and clean both sides of entrance glass doors.
QUARTERLY SERVICES
1. Wash and clean the interior of exterior windows.
SEMI-ANNUALLY
1. Clean exterior of exterior windows.
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33-58982) pertaining to the 1992 Stock Option Plan of TENERA,
Inc., as amended, of our report dated January 24, 1997, with respect to the
consolidated financial statements and schedule of TENERA, Inc., included in
the Form 10-K for the year ended December 31, 1996.
ERNST & YOUNG LLP
San Francisco, California
March 27, 1997
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<FISCAL-YEAR-END> Dec-31-1996
<PERIOD-START> Jan-01-1996
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