<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended January 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______ to ______
Commission file number 0-22798
SPECIALTY EQUIPMENT COMPANIES, INC. (Exact Name of Registrant as Specified in
its Charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
36-3337593
(I.R.S. Employer Identification No.)
1245 CORPORATE BOULEVARD, SUITE 401, AURORA, ILLINOIS 60504
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (630) 585-5111
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED:
Common Stock New York Stock Exchange
(par value $.01 per share)
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
--- ---
Aggregate market value at March 31, 2000 of the voting stock held by
non-affiliates of the Registrant - $216,958,390 (based on a closing price of
$20.75 per share on that date as reported on the New York Stock Exchange). (The
Registrant has assumed that all directors, executive officers and holders of 40%
or more of the shares of Common Stock are affiliates for the purposes of this
calculation.)
As of March 31, 2000, 19,246,334 shares of the Common Stock, $.01 par value, of
the Registrant were outstanding.
Documents Incorporated By Reference:
A portion of the Company's Proxy Statement relating to its 2000 Annual Meeting
of Stockholders is incorporated by reference in Part III hereof.
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. YES X NO
--- ---
<PAGE> 2
PART I
ITEM 1. BUSINESS
GENERAL
Specialty Equipment Companies, Inc. ("Specialty" or "Company") is a manufacturer
of a diversified line of highly engineered commercial and institutional hot and
cold foodservice equipment. Our products are used by customers in the
foodservice and beverage equipment market segment and include a variety of
national restaurant chains, other commercial restaurants, convenience store
chains, specialty chains, soft drink bottlers, hotels, brewers, roasters, office
coffee contractors and institutional foodservice operators. We emphasize the
engineering and development of specially designed, state-of-the-art foodservice
equipment, and sell a wide array of standardized foodservice equipment and
related products. We service our customers through a broad-based global
distribution and service network.
Specialty's domestic operations, and some of its foreign operations are
conducted by Specialty Equipment Manufacturing Corporation ("Specialty Mfg."), a
wholly owned subsidiary. Specialty Equipment International (through its wholly
owned subsidiary, Gamko Holding, B.V.) conducts a substantial portion of
Specialty's foreign operations. Carter-Hoffmann is a wholly-owned subsidiary of
Specialty Equipment Companies, Inc.
We generally market our products through one of eight global brands. These
global brands are:
o Beverage-Air;
o Carter-Hoffmann;
o Gamko;
o Coolpart;
o Taylor;
o Wells;
o Bloomfield; and
o World Dryer
Each of these brands has been prominent in its specific market niche for many
years. For example, Wells produced its first waffle baker in 1920. Taylor
provided its first ice cream freezer to a restaurant in 1926 and has been
providing shake machines to McDonald's since the 1970's. Beverage-Air started
making refrigerated cabinets in 1944, and Bloomfield introduced its first coffee
service products in the 1950's. World Dryer started selling warm air hand dryers
in 1951 and Gamko produced its first cooler in 1965. Carter-Hoffmann developed
the first heated banquet cart in 1947.
GLOBAL BRANDS
Beverage-Air
The Beverage-Air brand is one of the two leading worldwide brands (in sales) of
commercial refrigeration equipment for the soft drink bottling market. We are
also one of several leading manufacturers (in sales) of such equipment for the
foodservice market. Beverage Air brand products include vertical and horizontal
reach-in merchandising coolers, freezers, refrigerators, pizza and food
preparation units, school
2
<PAGE> 3
milk coolers, self-contained beer dispensing units, delicatessen and floral
display cases. Beverage-Air brand products include models marketed under the
Beverage-Air(R), Breeze(R), Marketeer(R) and Maxi-Marketeer(R) names.
Specialty acquired Beverage-Air in November 1986 to broaden Specialty's product
offerings to the national restaurant and convenience store chains. Specialty's
management believed that Beverage-Air's product lines and engineering
capabilities were well suited to support development of customized refrigeration
products for the major chains. Since we acquired Beverage-Air, we have been
successful in growing the sales of Beverage-Air products in this market niche.
In the foodservice niche, Beverage-Air generates revenue principally through
sales to quick service and full service restaurants, hotel kitchens,
supermarkets and convenience stores, with distribution to this market through
independent dealers and distributors. Beverage-Air's major product lines in this
market niche include stainless steel refrigerators and freezers, traditional and
curved Euro styled delicatessen display cases, pizza and food preparation
tables, refrigerated and frozen food display cases and beer dispensing
equipment. Beverage-Air's foodservice products are serviced primarily through
independent service organizations.
In the soft drink bottling market, we market our Beverage-Air products to
bottlers around the world, that purchase the coolers for placement in retail
outlets such as supermarkets, convenience stores, kiosks and special venues.
Most of our bottler customers are affiliated with major soft drink companies,
such as Coca-Cola and Pepsi Cola. We have worked with the bottlers to customize
these coolers to meet their marketing needs. For example, we have designed
several unique point-of-purchase soft drink merchandisers, including cabinets or
refrigerators designed for use in the express check-out lanes of supermarkets, a
line of curved-front vertical merchandisers (Maxi-Marketeers), Easy Access
horizontal check out cooler and the Contour Cooler(TM) for the international
bottler market. In 1998, we began to market, under the Beverage-Air global brand
name, The Breeze(TM), the industry's first self-contained open air-curtain
merchandiser with product pulldown capability. The Breeze(TM) provides a base
model for a future new product family for Beverage-Air.
We have an active product development team that focuses exclusively on the
Beverage-Air brand. In addition to research and development activities focused
on domestic and international sales, resources are dedicated to product
development activities related to design, performance and agency approvals
specifically for international markets, since these are markets targeted by our
major customers. Beverage-Air has advanced its product testing capabilities and
has successfully completed the Underwriter Laboratories ("UL") client test data
criterion. Because of these capabilities we can respond more quickly to the
equipment development needs of our key Beverage-Air brand accounts.
Beverage-Air focuses on its integrated marketing and quick response product
development capabilities to meet changing customer and industry requirements.
This approach allows us to add and expand core product lines and meet unique
customer applications. Not only do we believe that this quick redesign effort
will help us increase sales in the short term, but it will also strengthen our
relationship with our domestic
3
<PAGE> 4
customers. We also believe that this capability has been an asset that has
helped us grow our existing customers in key emerging markets.
We manufacture Beverage-Air products at three facilities. Our Spartanburg, South
Carolina facility primarily manufactures merchandising equipment for the
foodservice and soft drink bottler markets. Our Honea Path, South Carolina and
Brookville, Pennsylvania facilities, manufacture refrigeration products
primarily for the foodservice market. This manufacturing arrangement, with each
facility being equipped to meet specified needs, has improved lead times and
increased our ability to obtain large domestic and international orders for
Beverage-Air brand products. It also provides greater flexibility in responding
to product roll-outs since any product can be manufactured in any or all three
of our plants.
Carter-Hoffmann
We acquired Carter-Hoffmann in September 1999. Founded in 1947, Carter-Hoffmann
designs, manufacturers, and markets equipment for holding, transporting,
rethermalizing and serving food. Globally, we serve are hotel banquet operations
and chain restaurants. Domestically, we serve institutions including schools,
correctional facilities and hospitals.
The Carter-Hoffman name is recognized worldwide through long-standing
relationships with major hotel and restaurant chains. Hotel banquet operations
employ heated and refrigerated "Carters" to deliver their guests' meals at safe
and appetizing temperatures. Carters, and a wide range of other banquet support
equipment, are also used in many of the largest resorts, convention centers,
sports stadiums and clubs. Carter-Hoffmann's brand strength in this market gives
us the opportunity to grow through product innovation, as well as
internationally as the hospitality industry continues to look beyond U.S.
borders for expansion. Some of the top chain restaurants have increased their
speed of service and improved food safety with our precise humidity controlled
heated holding products. Labor shortages and increased competition between
chains has created a greater need for kitchen efficiency, including the holding
of food, which is why we see this as an area for continued growth. High-profile
equipment roll-outs with major chains have earned Carter-Hoffmann the reputation
as a problem solver because we can apply custom solutions to operational
challenges. Some of the products generated from this process have included
heated bun holding cabinets, high-volume nacho chip warmers, and
high-performance plate heaters.
Carter-Hoffmann also enjoys a strong presence in domestic institutional markets.
School and correctional users benefit from our understanding of the stringent
equipment requirements for transporting hot bulk food and meals on trays. In
addition to durable, reliable food carts, we have also built a reputation for
leading-edge technology in these areas with a variety of rethermalization
cabinets that heat food fast, consistently and safely. Labor shortages and
rising costs associated with school foodservice are driving a trend toward
centralized food production. Since meal rethermalization (the warming of
pre-cooked food to serving temperature) is an integral step in this process, we
see it as a growth opportunity. In addition to these core products, heated
holding cabinets, racks and cafeteria serving lines complete our product
offerings. Finally, we are also one of the suppliers of tray delivery carts and
tray make-up equipment for the healthcare industry. Carter-Hoffmann products are
marketed through independent foodservice
4
<PAGE> 5
equipment dealers and distributors. The specification writers, primarily
foodservice consultants, also play a major role in our business, as do the users
of our products.
Carter-Hoffmann has invested in building a competent and flexible infrastructure
to support our marketing efforts. Traditional research and development
techniques, as well as a growing knowledge base of food testing from our
in-house test kitchen and from the field, are employed to meet the needs of our
customers. New concepts are turned into equipment solutions through a
comprehensive, fast track product development process that uses 3D computer
assisted design ("CAD"), a fully equipped prototyping shop, and a UL certified
electrical lab with an environmental test chamber. Both small and large scale
production runs are handled efficiently through a state-of-the-art facility that
includes automated CNC/DNC fabrication, manufacturing cells and a skilled and
dedicated workforce. We can also offer 24-hour service, seven days a week, with
experienced technicians in over 100 markets. On-going training, advanced
trouble-shooting techniques, and a commitment to total quality management help
ensure that each Carter-Hoffman customer has the best experience possible.
Taylor
Taylor will be celebrating its 75th anniversary in fiscal 2001. Taylor designs
and manufactures foodservice equipment in both the "cold" and "hot" food
preparation and holding categories. Taylor's product line includes soft serve
ice cream, frozen yogurt, shake, batch ice cream, frozen beverage dispensing
equipment, gas/electric grills, counter-top convection ovens and infrared ovens.
Taylor also produces specialized equipment to meet particular needs through the
cultivation of long-term relationships with key customers. Current projects
under development include a hot beverage dispenser and a refrigerated
milk/creamer dispenser. The research and development team continues the
development of the freezer of the future project, currently performing in-depth
testing to validate reliability and performance.
Taylor`s primary market is the commercial and non-commercial part of the
foodservice industry. The principal customer base for Taylor equipment includes
quick service restaurants (i.e., McDonald's and Burger King), specialty shops
(i.e., Dunkin Donuts and TCBY ), full service restaurants (i.e., Chili's and Red
Lobster), convenience stores (i.e., Dairy Mart and E-Z Serve) and others. In the
non-commercial arena, Taylor equipment can be found in schools, hospitals,
airports and stadiums. Taylor equipment is sold domestically and internationally
for new installations as well as for remodeling and retrofitting of existing
store layouts (primarily driven by new menu concepts) and the replacement of
older equipment.
Taylor has built a factory supported worldwide service network to provide
personalized service at the local level. The Taylor distributor network assures
timely delivery and installation of equipment, warranty service and preventative
maintenance, as well as on-site training for owners and operators. Responsible
for all equipment within their territories, every distributor maintains their
own warehouse, equipment and parts inventory, and fleet of service trucks with
qualified, factory-authorized/certified service technicians. They also provide
product recipes, point-of-sale materials and financing. These distributors
enable Taylor to provide a comprehensive warranty and service contract program
for the entire equipment line.
5
<PAGE> 6
To insure that Taylor provided customers with the highest quality service, they
embarked on an initiative, entitled Service 2000. An advanced communication
network was developed to track service performance and to provide a benchmark
for measuring continuous improvement.
New product development begins with market research and input from restaurant
and foodservice operators to establish specifications for equipment that will
meet the evolving demand of today's consumer. In 1998, Taylor opened a 25,000
sq. ft. Technical/Developmental Center ("Center") as the cornerstone of
continued emphasis on constantly improving both performance and simplified
operation of Taylor equipment. The facility plays an important part in the
development and testing of new technology and processes that will redefine the
future of "cold" and "hot" food preparation equipment. In addition, the Center
allows testing and monitoring of equipment in a controlled environment. Labs are
designed to simulate restaurant conditions to perfect new equipment and ideas
before they enter the marketplace. All Specialty Equipment companies use this
Center to expand their relationships with key customers, to anticipate changing
market needs and to help expand their own individual brands and market share.
The Center also includes state-of-the-art classrooms to train more than 1,500
service technicians annually, in regularly scheduled classes. Translation
capabilities simplify communication requirements in effective multilingual
training. It also provides an environment in which to host customers, partners,
suppliers, alliances, distributors and employees from around the world.
Ongoing investment in the most advanced manufacturing equipment and processes
continues at the 339,000 sq. ft. facility in Rockton, Illinois. A continued
dedication to the concept of cell manufacturing allows Taylor to produce quality
products with greater speed, flexibility and efficiency at lower inventory
levels. Dedicated freezer and grill fabrication cells permit Taylor to more
effectively build and test equipment to respond efficiently to customer demand
for reliability and quality standards. Dedicated employees, with an average of
more than 14 years experience, combined with modern assembly practices remain
the hallmark of every Taylor manufactured product.
In 1996, Taylor became ISO 9001 registered. To maintain that status, rigid
international standards and documentation is constantly audited by an outside
third party. As a part of this process, internal reviews are conducted to
validate and identify areas for continuous improvement to assure that the
highest quality standards of our customers are met.
Taylor's leadership role is founded on the strength of their core competencies.
These include medium and low temperature refrigeration systems, thermal heat
transfer design, electronic micro-processor controls and proprietary software, a
worldwide distributor network in over 125 countries, and key customer
partnerships that provide the ability to respond to a changing marketplace.
Gamko/Coolpart
Gamko is a leading manufacturer of commercial refrigeration equipment in The
Netherlands. Gamko products are sold under the Euro-Line(TM), Eco-Line(TM),
Party-
6
<PAGE> 7
Cooler(TM) and Maxi Glass(TM) line names. Gamko global brand offerings include
modular and traditionally designed beverage and bottle display coolers,
dispensing and keg coolers, and food display and waste disposal coolers.
We acquired Gamko in August 1997 to broaden Specialty's manufacturing and
marketing efforts in Europe. We felt that this global expansion would help us
meet the demands resulting from the rapid expansion of the global quick service
restaurant chains and soft drink beverage companies. In addition, the
acquisition affords Specialty entry into the global brewery refrigeration and
beer dispensing equipment market, which is Gamko's core business. We believe
that Gamko's product lines and engineering capabilities are well suited to
support the development of customized refrigeration products for major
customers. Gamko has also been successful with application engineering concepts
that we think will drive product development in the future.
The Coolpart brand, a unit of Gamko, is dedicated to brewery customers. This
business is separate in sales and manufacturing and is solely focused on
customized solutions to beer dispensing, cooling and monitoring systems for pubs
and bars. Coolpart's approach is to sell directly to its brewery partners around
the world, and provide the necessary after sales service demanded by its
customers. Coolpart and Gamko work hand-in-hand in assuring opportunities are
leveraged in all markets to ensure each maximizes the other's strength.
In the brewery market, we principally sell our Coolpart products to brewers
around the world, although mostly to brewers affiliated with the major
international breweries. Gamko customers purchase the equipment for placement in
supermarkets, restaurants, bars, taverns and special venues. We have worked with
the brewers to customize these coolers to meet their marketing needs. In the
soft drink bottler market, Gamko has products suited for the marketing programs
of the major soft drink companies. We believe that we can use the strength of
the Beverage-Air global brand to expand Gamko's merchandiser equipment line. In
the foodservice market, Gamko generates revenue principally through sales to
distributors. Gamko's major product lines in this sector include food display,
food preparation coolers and catering equipment for the restaurant and catering
industry. It has also designed a unique waste disposal cooler for use in hotels,
restaurants and butcher shops. The waste disposal cooler inhibits the
development of bacteria and odors in these applications. Gamko's foodservice
products are serviced primarily through independent service organizations.
Because of the perceived importance of product innovation and responsiveness to
the brewing and foodservice markets, we maintain a product development staff
focused specifically on developing additions to the Gamko line. In addition to
research and development activities focused on both West and East European
sales, we have dedicated resources to product development activities related to
design, performance and agency approvals specifically for international markets.
It is through this strategy of integrated marketing that we intend to grow the
Gamko brand customer base in emerging markets.
Wells
Wells was founded in 1920 and has been producing electric cooking products for
more than 75 years. Under the Wells brand name, we design, manufacture and
market a
7
<PAGE> 8
broad line of warming and cooking equipment. The Wells product line
consists of electric counter top and built-in appliances (including fryers,
griddles, food warmers, toasters, hot plates, waffle bakers, convection ovens
and broilers). The company also sells high capacity free-standing frying and
cooking systems which employ self-contained ventilator and fire suppressant
equipment.
We market our Wells products principally through independent foodservice
equipment dealers and distributors. Besides restaurant chains, supermarkets and
convenience store outlets, ultimate users of Wells equipment include independent
restaurants, recreation outlets, hotels, schools and hospitals. Recently we
introduced a refrigerated built-in buffet unit under the Wells name, which will
complement the Wells modular warmer line, to provide a full line of products to
support foodservice consultants and specifiers. We have also developed larger,
specialized Wells products for major restaurant chains, including food
preparation cooking centers with integrated ventilation hoods for
non-traditional points-of-service.
Wells products are manufactured at our Verdi, Nevada facility. In order to
attain additional economies of scale, we also use the Verdi, Nevada facility to
manufacture our Bloomfield brand products.
Bloomfield
Under the Bloomfield global brand name, we design, manufacture and market a
coffee and tea beverage equipment product line that includes brewers, glass
coffee decanters, insulated beverage dispensers and related accessories. In 1997
we introduced Bloomfield's Electronic Brew Control ("EBC(TM)") coffee equipment.
EBC(TM) has the capability of providing a consistent quality of brewing results,
with less operator attention and training. More recently we introduced the
E-Max(TM) family of decanters, airpot and thermal brewers with programmable
electronics to complement the well established EBC equipment. In addition, we
have designed and developed Satellite Brewing Systems, Multi-Brewers and Docking
Stations, which we believe will enhance the competitive position of Bloomfield
products with the quick service restaurant chains.
We sell the Bloomfield product line directly to office coffee service customers
and independent coffee roasters, and through independent foodservice equipment
dealers and distributors. Ultimate users of the Bloomfield equipment include
major restaurants, hotels, convenience stores and offices.
Consistent with our customized product development and marketing strategy, we
are committed to designing specialized coffee and tea brewing equipment to meet
the needs of the major national and global chains. As a result of this
commitment, a number of our Bloomfield products are purchased on a regular basis
by the major chains and their franchisees.
World Dryer
Founded in 1948, World Dryer is the global leader of the electric warm air hand
dryer industry. The company designs, manufactures and markets it product lines
for application in public washrooms. An ISO 9002 company, the World Dryer brand
is synonymous with quality, high performance and durable products. Our flagship
product, the World Dryer Model A cast iron hand dryer, has become the industry
standard.
8
<PAGE> 9
Well-positioned to supply the international growth of major U.S. chain accounts,
World Dryer has distribution partnerships in over 80 countries. The most visible
evidence of World Dryer's success is the installation of World Dryer products in
many major national quick service restaurants and the high percentage of World
Dryer hand dryers found in public and private school systems.
The primary benefit of installing warm air hand dryers is the cost savings
realized versus the use of paper towels. Over the last decade, the Company has
identified two major developments in the market; environmental concerns and
sanitation challenges. In response, the Company developed a complete series of
touchless hand dryers and accessories to improve sanitation and reduce waste.
World Dryer has also developed marketing campaigns to increase consumer
awareness of the positive environmental impact achieved by using World Dryer
products.
World Dryer has designed a line of hand sanitation systems to address the
critical issues of food safety in the hospitality and healthcare industries. The
automatic hand washstation is a touchless, multi-functional unit that dispenses
soap, water and warm air or paper. The washstation features monitoring and
warning functions to assist in compliance with state and federal health codes.
Management's commitment to protect and enhance World Dryer's market position by
strongly focusing on cost savings, environmental benefits and key sanitation
issues is a major factor in the company's future growth.
ORGANIZATIONAL AND FINANCIAL HISTORY
Specialty was incorporated under the laws of the state of Delaware in 1984. We
acquired each of our currently active operations (other than the Beverage-Air,
Carter-Hoffmann, Gamko and Coolpart operations) in January 1985 from Beatrice
Companies, Inc. We completed an initial public offering in 1987 and were
acquired by SPE Acquisition, Inc. ("SPE") in a management-leveraged buy-out in
1988. Specialty was reorganized pursuant to a Chapter 11 plan of reorganization
("POR"), in which SPE was merged into it, on March 31, 1992. On December 1,
1993, our Common Stock began trading on the Nasdaq National Market. On December
29, 1998, our Common Stock became listed on the New York Stock Exchange.
Specialty acquired Beverage-Air from Gerlach Industries, Inc. in November 1986.
In August 1997, the Company acquired Gamko Holding, B.V. based in The
Netherlands. The Coolpart brand was launched to expand Gamko's focus on the
brewery industry with an expanded product line and specialized sales focus on
beer dispensing. On January 31, 1998, pursuant to a Plan of Internal
Restructuring, approved by the Company's stockholders at the Annual Meeting of
Stockholders held on April 30, 1997, the Company organized Specialty Mfg., a
wholly owned subsidiary of the Company. As part of the formation of Specialty
Mfg., the Company contributed substantially all of its operating assets, other
than its intellectual property, stock in its other subsidiaries and certain
other rights, to Specialty Mfg., which assumed substantially all of the
Company's liabilities. In 1998, the Company organized Specialty Equipment
International ("SEI"), a wholly owned subsidiary of Specialty Equipment
Companies, Inc. and Gamko became a wholly owned subsidiary of SEI. In September
1999 we acquired the assets of Carter-Hoffmann. Carter-Hoffmann was organized as
a wholly-owned subsidiary of Specialty.
9
<PAGE> 10
On December 1, 1998, the Company entered into a credit agreement with several
banks and Bank of America, Illinois, as agent for the banks (as amended and
restated, the "BA Bank Facility"). The BA Bank Facility provides a 5-year, $200
million unsecured revolving credit facility. The proceeds from the BA Bank
Facility were used to call and refinance the remaining $118 million of
Specialty's 11-3/8% Senior Subordinated Notes due 2003 which were outstanding on
December 1, 1998 and to fund other long-term debt.
INDUSTRY OVERVIEW
We generally treat the commercial foodservice equipment industry as being two
market segments, commercial and institutional, divided into four key customer
categories: full service restaurants, quick service restaurants, retail outlets,
such as supermarkets and convenience stores, and public and private institutions
(schools, hospitals, hotels, corrections facilities and other governmental
facilities). In supermarkets and convenience stores, we focus primarily on the
equipment used in foodservice preparation with selected application in soft
drink merchandising. The Company primarily serves customers in the quick service
restaurant and retail outlet categories.
The foodservice market, and particularly the chain restaurants and retail outlet
categories, has grown at a fairly stable rate since 1992. This growth has come
in response to both population growth and other demographic changes, principally
the emergence of families with multiple wage earners, causing greater demand for
convenience in food and beverage preparation and consumption. In response to
these population and demographic changes, chain restaurants have accelerated
their domestic and international unit expansion, particularly in the quick
service restaurant market. These changes have also intensified competition in
these categories. Simultaneously with the growth of the chain restaurants, the
major soft drink beverage companies have accelerated domestic and international
placement of their products. The net result, according to published industry
sources, is that domestic sales of foodservice equipment increased 3.1% to $7.07
billion in 1999 and are projected to grow by an additional 6.2% in 2000. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
Growth in the foodservice equipment market results primarily from new store
openings, replacement of equipment, store unit remodeling upgrade programs and
purchases of equipment to support new food and beverage menu items. We think
that the domestic growth in new stores for many of these chains has slowed, but
that the previously opened stores have entered remodeling and equipment
replacement phases. We also believe that the competition resulting from slower
growth in the domestic foodservice industry has caused chain restaurants to make
more frequent menu and format modifications, increasing their demand for more
flexible equipment. In addition, we have also seen an increased demand for labor
saving and energy efficient equipment, and this is a trend that we believe will
continue. At the same time, convenience stores and supermarkets have increased
their sales of prepared and fast foods, and this increase has resulted in an
increased demand for the types of products offered by us. Similarly, the
expansion of quick service restaurants into non-traditional sites, such as
retail stores, recreational facilities, supermarkets and airports, presents us
with an opportunity.
10
<PAGE> 11
Although the domestic market is growing at a steady rate, we think that the
international market presents opportunities for growth. Throughout the world,
the concentration of quick service and branded chain restaurants is
substantially lower than in the United States. The more limited penetration of
chain restaurants outside the United States provides opportunities to these
U.S.-based chain restaurants for international expansion. Several leading
domestic chains have embarked upon significant international expansion to
attempt to take advantage of this opportunity. Internationally, the unit growth
of the four largest quick service restaurant chains was 9% in 1998. We believe
we are well positioned to take advantage of this international growth because of
our service and sales organization as well as our historical relationships with
some of the key industry players. For example, the Company's largest customer,
McDonald's, accounts for more than 50% of all international sales realized by
the four largest U.S. restaurant chains. In fiscal 2000, approximately 26.3% of
the Company's sales were of products intended for use outside the United States
compared with 28.5% in fiscal 1999. Despite the opportunities, the international
markets present significant competitive risks, particularly the high cost of
maintaining service capabilities which in the United States has been important
in establishing and maintaining the Company's market position.
Historically, the beverage industry has been dominated by Coca-Cola and Pepsi
and to a lesser extent by Cadbury/Schweppes and other brands in the
international markets. More recently, during the past decade, the North American
market has seen a trend of rapid growth and proliferation of non-carbonated soft
drinks such as juices, teas and waters, as consumers have become more health
conscious and demand more variety in soft drinks. This change within North
America has seen the rapid growth of brands such as Gatorade, Tropicana,
Snapple, Royal Mistic and Sobe, as well as a full range of national and local
mineral water. As these "New Age" and third tier bottlers compete for market
share, they must exhibit a presence in the market. This presence is achieved
through the placement of refrigerated merchandisers.
During this same period, the major brands such a Coca-Cola and Pepsi have been
aggressively pursuing incremental growth strategies through the placement of
refrigerated merchandisers, to promote the sale of single-serve cold beverages.
New placement opportunities have growth beyond traditional locations to new
venues, including retail check out, supermarket express lanes, kiosks, gondolas,
convenience stores and gas stations.
As the key brands and New Age bottlers pursue these placements, they have sought
out unique designs and applications of refrigerated merchandisers. This market
has been successful for Beverage-Air as a result of our strong relationship with
the parent companies and investment in research and development. Similar
marketing programs are beginning to take place internationally as these
companies seek markets in which they can grow their sales and profits through
single-serve cold beverage sales.
Many of these emerging markets are aggressively seeking traditional placements
and matching competitive pressures for cold-drink equipment placements. As these
markets mature, new placement opportunities will become available, as will the
need for products developed to capture nontraditional retail sales.
11
<PAGE> 12
Along with the major soft drink brands, the global market offers additional
opportunities with local beverage brands. Also, many international breweries
approach single-serve cold drink sales with aggressive merchandising programs,
using products similar to those used by soft drink bottlers.
The global beverage industry will benefit from continued strong growth from
major soft drink companies, local companies and brewery sales. Capital spending
for cold drink equipment is expected to continue to grow, although at a somewhat
lower rate.
BUSINESS STRATEGY
The principal goal of our business strategy is to maintain and improve our
position as a leader in the foodservice and beverage equipment industry. The key
elements of this strategy include the following:
Focusing on Major National Chains and Beverage Companies
The major global restaurant chains, beverage companies, convenience store chains
and specialty chains lead the foodservice industry. These companies maintain
their leadership by focusing on menu innovation, productivity, facilitating
product availability to the consumer, sanitation, energy efficiency and
environmental issues. To serve these customers, we design specialized
foodservice equipment to meet the specific performance requirements and
appearance characteristics of the chains and beverage companies. Our focus is to
be able to respond quickly and effectively to changes in the competitive
environment that our customers face. To meet this goal, we dedicate
manufacturing capacity to the delivery of new or modified equipment to support
customers' changing marketing programs, and operate manufacturing facilities
designed for flexible assembly procedures and short production runs.
On the product development side, Specialty has an active product development
program with an emphasis on engineered products to meet special applications. We
organize product design and sales teams to work closely with the national chains
in developing applications to meet their specific requirements. Our goal is to
understand our customers' specific needs, and then to design new or modified
products that address those specific needs. Because we can identify and address
customer needs effectively, in many cases, our products are among only two or
three products that satisfy the equipment specifications of major national
chains for a particular item.
In 1998 we continued to take steps to maintain and expand our ability to meet
our customers' needs. Notably, we opened the Specialty Equipment Business
Development Center. The center provides a resource for research and development
departments for each of our global brands in our efforts to provide new products
and product variations for our customers. This center will provide us with
growth opportunities by providing a dedicated facility for the exploration of
new customer driven product technologies and to enhance the customer support and
product development efforts at each of our brands. We also attempt to use our
relationships with our key customers to anticipate and predict their changing
needs, and to help expand their own markets and sales.
On this front, we conduct internal research and development to design equipment
to advance the state of the art in the foodservice market. Many of our newer
products
12
<PAGE> 13
have been a result of these efforts. For example, we developed Razzle(R)
equipment as part of our Taylor line of products. Razzle(R) is an extension of
our soft serve freezers that is designed to enhance the frozen dessert menus of
a variety of quick service restaurants and specialty and convenience stores. In
addition, the popularity of frozen coffee and flavored teas created two new
opportunities for Taylor; a hot beverage dispenser and a milk/creamer dispenser.
For our Beverage-Air brand, we worked with our bottler customers to develop
point of purchase displays, such as The Breeze(TM) Easy Access, and with our
foodservice customers on the Euro-styled curved deli display. We sell these
products to soft drink bottlers to market their products in retail checkout
areas and other specialty restaurant chains, coffee roasters and office coffee
contractors. The Bloomfield line was expanded to include E-Max(TM) and EBC(TM),
which we market to all restaurant chains, coffee roasters and office coffee
contractors. E-Max(TM) and EBC provide consistent quality brewing results with
less operator attention. World Dryer's hand sanitation station meets regulatory
requirements for proper hand washing.
The Company's research and development results from a combination of Company and
customer sponsored research activities. Total research and development
expenditures were $6.9 million, $7.3 million and $9.1 million for fiscal years
1998, 1999 and 2000, respectively.
Capitalizing on the Opportunities Presented by the Significant International
Expansion of the Major Quick Service Restaurant Chains and Beverage Companies
We think that the international expansion of the major national restaurant
chains and beverage companies, including our two largest customers, is resulting
in significant growth in the foodservice and beverage equipment industries. We
also think that this expansion of the major chains and beverage companies
internationally is presenting an opportunity for growth for Specialty as well.
To capitalize upon this opportunity, we have, among other things, increased our
international distribution and service support networks and in 1997 acquired
Gamko, our first manufacturing facility outside of North America. We have an
international advisory board, composed of some of our key domestic and
international officers, to chart the future direction for our international
marketing plan. We have also continued to evaluate additional acquisitions in
international markets of companies that we think will have synergies with our
existing business.
Leveraging our Long-Term Relationships With Existing Major Customers
Specialty's strategy reflects our historic relationships with the major national
restaurant chains as a result of the high penetration rate of Taylor soft serve
ice cream freezers and specialized grill equipment throughout that market with
quick service restaurants. We believe that these relationships have developed in
large part because of our extensive distribution and service network and our
customized manufacturing capabilities, initially implemented for the Taylor
global brand. Because of these abilities, we can produce equipment to meet the
high quality and volume needs of each of our customers. In addition, Specialty
intends to use the strength of the Beverage-Air brand to assist in development
and growth of Gamko's merchandiser equipment line globally. We also intend to
introduce some Gamko products in North America under the
13
<PAGE> 14
Beverage-Air brand. Based upon these relationships, we have been able to employ
an integrated marketing approach, which has expanded the customer base for each
of our global brands. For example, Bloomfield coffee makers, Beverage-Air
refrigeration equipment, Wells warmers, Carter-Hoffman's holding and
rethermalization cabinets, and World Dryer hand dryers are now approved for use
in a majority of global chain restaurant concepts and operations.
Developing New Products and Line Extensions by Extending Engineering Expertise
to Standardized Foodservice Equipment
Another element of our strategy is to adapt certain product features developed
for our larger customers to enhance our overall product line. We believe that a
large portion of the equipment and related products used in the foodservice
industry is standardized and consequently subject to price competition,
including import competition and purchasing considerations based on volume and
freight costs. We can gain a competitive advantage in the production of
standardized equipment, by modifying standardized equipment with modifications
we develop in meeting our larger customers' specialized needs. In this way, we
can "move" the standard market to a modified product, with additional features,
and compete on bases other than merely price. In some cases, innovations
developed by the Company for national chains have provided enhancements for our
general product lines and have enabled the Company to improve manufacturing
operations and cost efficiencies.
Growth by Acquisition
Management believes that the foodservice equipment market is largely fragmented,
with many small manufacturers and only a few larger entities. Our objective is
to use our cash flow to grow our business by acquiring smaller companies that
fit well and provide synergies with our existing group of product brands and
customers. For example, our recent acquisition of Carter-Hoffmann provides us
with a number of synergies on the cooking or "hot" side of our business. In
addition, this acquisition offers an entry into the consultant market, a niche
not previously exploited by Specialty Equipment. Taylor acquired a frozen
beverage technology in December, 1999, allowing them to compete where smaller
and price competitive equipment are required, expanding the available market in
their frozen beverage business.
OPERATIONS OUTSIDE THE UNITED STATES
Specialty's Gamko subsidiary manufactures refrigeration equipment in The
Netherlands and has sales offices in the United Kingdom, France, The Netherlands
and Germany. The Gamko and Coolpart brands have manufacturing in The
Netherlands, and Coolpart also has manufacturing in Slovakia. Our Canadian
subsidiary, Bloomfield Industries Canada Limited, manufactures a portion of the
Bloomfield line at its Mississauga, Ontario plant and markets the entire
Bloomfield product line and selected Wells products throughout Canada. Taylor
has a foreign sales subsidiary in Rome, Italy, Taylor Freezer International,
S.r.l., which administers certain of Taylor's export sales. We also have a
number of other international sales offices. Specialty also has relationships
with independent dealers and distributors in more than 120 countries worldwide.
Each of these dealers and distributors provides service for one (or more) of our
global brands.
14
<PAGE> 15
WORLDWIDE MARKETING AND DISTRIBUTION Management believes that a key to
Specialty's long-term relationships with its principal customers is its
worldwide marketing, distribution and service network. These customers require a
high degree of responsiveness in product development, production, delivery and
service on a worldwide basis. Management believes that our extensive
distribution and service network, particularly for the Taylor brand, gives us a
competitive advantage in the markets in which we compete. Also, we think that we
enjoy a favorable strategic position because of the close, long-standing
relationships we have developed with our customers. Without these strong
relationships, our "cross-marketing" efforts would be far more difficult.
Specialty's global brands are marketed through a combination of field sales
personnel, consisting of direct salespeople, commissioned agents and distributor
salespeople and independent service and parts distributors. Each global brand
has its own marketing, sales and service programs.
The following table summarizes the primary distribution mechanisms employed by
Specialty for each of its global brands:
GLOBAL BRAND PRINCIPAL DISTRIBUTION METHODS
Taylor o Independent distributor network consisting of 47 North
American and 119 international distributors
o Direct sales support to national chains
Beverage-Air o Network of 40 independent sales representative
firms and more than 1,500 foodservice equipment
dealers and bottlers
o Direct sales to soft drink bottlers, breweries, beer and
beverage distributors
Wells/Bloomfield o Network of 144 representative firms, more than 1,500
foodservice equipment dealers and suppliers and 250
authorized service centers
o Direct sales to office coffee services
World Dryer o Electrical, plumbing and janitorial supply distributors
o Building contractors
o Foodservice equipment dealers
o Catalog supply houses
Gamko/Coolpart o Sales offices in France, The Netherlands, Germany and the
United Kingdom
o Direct sales to major breweries
o Foodservice equipment dealers and suppliers
Carter-Hoffmann o Network of 25 independent representative firms and more
than 1,500 foodservice equipment supply dealers
Typically, we design and produce equipment that satisfies the specifications of
major national chains, bottlers and brewers. We market our equipment and parts
through extensive networks of independent service and parts distributors,
equipment distributors and dealers, bottlers and brewers. We believe that we
enjoy a competitive
15
<PAGE> 16
advantage because our marketing and distribution networks provide our customers
with constant, high-quality service. Many dealers and distributors in this
network have had relationships with Specialty or its brands for more than 20
years. In some cases, these relationships have been more than 50 years. We
believe that these long standing relationships make it more likely that the
distributors and dealers will have, and maintain, a strong commitment to
Specialty and its brands. We also sell certain products directly to the chains.
COMPETITION
In general, the foodservice industry is highly competitive with competition
primarily based on price, product features, quality, reliability,
serviceability, field service and name recognition, with no one method of
competition being generally more important than any of the others. Management
believes that Specialty is competitive on this basis. In addition, we focus many
of our efforts on providing superior value through design, technology and after
sales support.
Our competitors include companies that manufacture a variety of foodservice and
beverage equipment products and those that specialize in a particular product.
The industry is generally fragmented and consists of companies that are smaller
than Specialty. However, Specialty does have some competitors that are units of
larger companies that have greater financial and personnel resources than
Specialty. Also, during periods of poor economic conditions, Specialty may face
competition from used equipment, particularly equipment originally manufactured
by Specialty. Used equipment often presents a lower cost, acceptable quality
alternative to newly manufactured equipment. Management believes that price will
continue to be a major competitive factor. Outside the United States, we face
many local competitors throughout our product lines. Recently, industry
consolidation has resulted in some small competitors being associated with large
brands. It is unclear what impact this will have.
COMPONENTS AND SUPPLIES
Most of Specialty's component purchases are for standard commodity-type
materials such as stainless steel, coatings and electrical components.
Generally, we buy these components from a number of suppliers, and have not
experienced any significant shortages, however, stainless steel prices have
increased recently. This is universal throughout the industry and not unique to
Specialty. Our global brands leverage our buying power by participation in
buying groups to obtain price advantages. We also purchase custom components
produced to our specifications. Management believes that we enjoy good
relationships with our suppliers. No long-term supply contracts are used,
although occasionally we purchase some materials in advance as a hedge against
price increases.
BACKLOG
Specialty's backlog of unshipped orders was approximately $33.9 million at
January 31, 2000, compared with $79.3 million at January 31, 1999. Reduction of
backlog can be attributed to our bottler customer purchases. Management expects
that Specialty will deliver its existing backlog during the current fiscal year.
16
<PAGE> 17
EMPLOYEES
As of January 31, 2000, Specialty employed 2,432 persons, of whom 20 at
Bloomfield's manufacturing facility in Forestview, Illinois were covered by
collective bargaining agreements. Management generally considers its
relationships with employees to be satisfactory. Specialty has not experienced a
work stoppage due to a labor dispute in more than 10 years.
PATENTS AND TRADEMARKS
Specialty holds numerous patents and trademarks registered in the United States
and foreign countries for various products. Management believes that an integral
part of Specialty's strength is its ability to capitalize on its tradenames,
several of which are widely recognized, and it takes such actions as it
determines necessary to protect these names. Our rights in our trademarks will
continue for so long as we use the marks and take the necessary actions to
protect our rights. Our trademark registrations in the United States and most
foreign countries must be renewed periodically, and we intend to do so based
upon our continued use of such marks. Frequently, our products, and certain of
their features, are patented, but management believes that no individual patent
is material to the business as a whole.
DEPENDENCE ON MAJOR CUSTOMERS
During fiscal 1998, 1999 and 2000, sales to McDonald's restaurants (both
McDonald's owned and independently franchised) accounted for approximately 15%,
14% and 15%, respectively, of Specialty's revenue. Sales to McDonald's increased
7.6% in fiscal 2000, as a result of sales of cooking grill equipment, offset by
lower sales of frozen dessert equipment under a program which was primarily
rolled out in the previous fiscal year. Because of the importance of McDonald's
as a customer, if sales to McDonald's were to substantially decrease without a
corresponding increase to other customers, such decrease would have a material
adverse effect on Specialty's financial position. While management believes its
relationship with McDonald's is favorable, the Company has no contracts with
McDonald's assuring it of any sales beyond those reflected in its backlog.
During fiscal 1999, sales to Coca-Cola Enterprises ("CCE") accounted for
approximately 11% of Specialty's revenue. In fiscal 1998 and fiscal 2000, sales
to CCE did not exceed 10% of Specialty's revenue.
Specialty's financial performance is tied closely to its major customers' demand
for large quantities of mass produced customized products, or rollouts. For
example, in fiscal 1994 through the first quarter of fiscal 2000, Specialty's
improved performance can be partially attributed to a significant rise in the
number of orders for refrigerated point-of-purchase displays by soft drink
bottlers. In the past, large rollouts of products, such as the Taylor two-sided
grill, have been similarly significant to our performance. However, the ability
to predict which customers and which products will experience roll-outs is
limited, and there can be no assurances that in any year we will receive orders
for any such roll-outs.
REGULATION AND ENVIRONMENTAL COMPLIANCE
Specialty is subject to the Federal Occupational Safety and Health Act and other
laws regulating safety and noise exposure levels in the production areas of its
facilities.
17
<PAGE> 18
Specialty's facilities are subject to numerous federal, state and
local laws and regulations designed to protect the environment. Environmental
laws and regulations that are material to Specialty's operations include the
Clean Air Act, which regulates air emissions and the phase-out of
chlorofluorocarbons ("CFCs"), the Clean Water Act, which regulates discharges to
waters of the United States, the Resource Conservation and Recovery Act, which
regulates the handling and disposal of hazardous substances, the Comprehensive
Environmental Response Compensation and Liability Act, which applies to cleanup
of hazardous waste, and the Emergency Planning and Community Right to Know Act,
which applies to disclosure of information on the use of hazardous substances.
Environmental laws and regulations that are material to Specialty's operations
also include state counterparts to these federal laws. In addition, our European
subsidiary, Gamko Holding B.V., is subject to the laws and regulations with
regard to safety and the environment in The Netherlands. Management believes
that Specialty is in compliance with all applicable laws and regulations and
believes that continued compliance with these laws and regulations will not
require significant capital expenditures or affect the Company's future
operations. See "-Legal Proceedings." Specialty has made substantial investments
in investigating and testing potential refrigerants. We have upgraded our entire
domestic product line to use component parts that comply with the 1990
Amendments to the Clean Air Act, which institute a phase-out of the production
and consumption of certain CFCs. In our Beverage-Air products, we have
eliminated components using CFCs, and we have converted our Taylor low
temperature compressor equipment away from components using CFCs. In both cases,
we have replaced the CFC based components with components using
hydrofluorocarbons, which are believed to be environmentally safer. In fiscal
1996, the EPA awarded us their "Stratospheric Protection Award" for our efforts
with the Beverage-Air brand equipment in meeting required conversion of
refrigerants and eliminating CFC based components. We continue to work to reduce
the number of our products using CFC based components.
New legislation and regulations, as well as revisions to existing laws and
regulations at the local, state and federal levels, may be proposed in the
future concerning environmental matters and the foodservice equipment industry.
Such proposals could affect Specialty's operations by:
o requiring us to make material capital expenditures to design
new products or product modifications;
o affecting the desirability of our existing products, as
compared to other products;
o limiting or creating opportunities for us with respect to
modification to existing products, and with respect to new
products.
Although we are not aware of any proposed local, state or federal environmental
statutes or regulations which will materially affect our operations or the
market for our products or result in material capital expenditures, we cannot
predict the effect from any possible future legislation or regulations. During
fiscal 2000, other than normal equipment considerations, there were no material
capital expenditures for environmental control facilities and no future material
expenditures are anticipated.
18
<PAGE> 19
SEASONALITY
Specialty experiences seasonal fluctuations in working capital requirements of
approximately $10 million to $15 million. Specialty's working capital
requirements generally peak in February and March because it offers distributors
extended payment terms for winter shipments of soft serve ice cream, frozen
drink and yogurt machines.
LETTERS OF CREDIT
As of January 31, 2000, Specialty had letters of credit outstanding totaling
$12.2 million, which guarantee various business activities, including $9.8
million of letters of credit which guarantee the Industrial Project Revenue
Bonds.
ITEM 2. PROPERTIES
FACILITIES AND MANUFACTURING
Our manufacturing facilities are generally equipped to process products from raw
materials to finished products. Management believes that our equipment and
facilities are well maintained and generally are, and will continue to be,
adequate for our present and immediate future needs. Demand flow manufacturing
techniques continue to be the driving factor in reducing capital and improving
productivity.
Since 1992, we have developed a Total Quality Management program at each of our
principal manufacturing facilities. As part of this program, during fiscal 1997,
the Taylor facility in Rockton, Illinois and the World Dryer facility in
Berkeley, Illinois were certified under the International Standards Organization
as ISO 9000 companies.
We conduct metal fabrication, finishing, sub-assembly and assembly operations at
each of our facilities. Among major categories of equipment that we have
installed at individual locations are:
o numerically controlled turret presses;
o robotic and conventional welding equipment;
o electrostatic powder coating facilities;
o polishing equipment;
o numerically controlled machining centers;
o computer assisted design systems; and
o product testing and quality assurance measurement devices.
The following table sets forth certain information relating to the Company's
principal facilities, organized by the global brand that is manufactured or
stored at those facilities:
19
<PAGE> 20
<TABLE>
<CAPTION>
APPROX. SQUARE OWNED/DATE
GLOBAL BRAND LOCATIONS USE FOOTAGE LEASE EXPIRES
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Taylor Rockton, IL Manufacturing and office facilities 339,000 Owned
Technical development center 25,000 Owned
Warehouse facility 7,600 Month-to-Month
Warehouse facility 28,800 Dec. 2001
Warehouse facility 5,600 Month-to-Month
Rosemont, IL Warehouse and office facility 10,500 April 2001
Beverage-Air Spartanburg, SC Manufacturing, office and
Warehouse facilities 321,000 Owned
Warehouse facility 144,500 Oct. 2000
Honea Path, SC Manufacturing facility 150,925 Owned
Brookville, PA Manufacturing facility 145,000 December 2000
Wells/ Bloomfield Verdi, NV Manufacturing and office facilities 90,000 June 2002
Manufacturing and office facilities 18,000 Owned
Manufacturing facility 24,300 Owned
Sparks, NV Warehouse facility 28,000 March 2005
Mississauga, Manufacturing and office facilities 37,200 Oct. 2000
Ontario Canada
Forestview, IL Decanter manufacturing facility 43,000 July 2004
World Dryer Berkeley, IL Manufacturing and office facilties 50,000 Feb. 2010
Gamko Etten-Leur, The Manufacturing and office facilities 265,000 Owned
Netherlands Service and sales facility 17,000 Owned
Slovakia
Coolpart Slovakia Manufacturing and office facilities 10,300 Oct. 2000
Etten-Leur, The Manufacturing and office facilities 11,700 Apr. 2004
Netherlands
Carter-Hoffmann Mundelein, IL Manufacturing and office facilities 55,000 Owned
Manufacturing and office facilities 44,200 Dec. 2002
Warehouse facility 12,000 Jan. 2001
Executive Office Aurora, IL Office facility 5,100 Nov. 2000
</TABLE>
ITEM 3. LEGAL PROCEEDINGS
Litigation
The Company was a defendant along with other defendants in an action filed on
July 20, 1995 entitled "Thermodyne Food Service Products, Inc. and AFTEC, Inc.
v. McDonald's Corporation, et al." which was transferred to the United States
District Court, Northern District of Illinois, Eastern Division (the "Thermodyne
Action"). Plaintiffs alleged that Specialty and other defendants misappropriated
trade secrets in connection with the Company's development of an oven for
McDonald's and OSI Industries, Inc. ("OSI"). As a result of a ruling on a motion
to dismiss, all the claims against Specialty other than the trade secret claim
were dismissed. The case was settled by the terms of a confidential settlement
agreement dated May 28, 1997 pursuant to which one of the defendants agreed to
make a settlement payment in a confidential amount. Although Specialty is not
required under the terms of this settlement agreement to pay any damages or make
any settlement payments, it is possible that the codefendant that did make a
settlement payment will seek a contribution from Specialty. On or about November
13, 1998,
20
<PAGE> 21
defendants in an action entitled "McDonald's Corporation v. American Motorists
Insurance Co." No. 97L0014, pending in the Circuit Court of DuPage County
Illinois, sought leave to file a third party complaint asserting contingent
subrogation rights against the Company, and other defendants from the Thermodyne
Action referred to above. The court denied that motion. On or about March 5,
1999, St. Paul Surplus Lines Ins. Co., American Motorists Insurance Co., Century
Indemnity Co., Indemnity Insurance Co of North America and Federal Insurance Co.
(collectively "Carriers") filed an action in the Circuit Court of DuPage County,
Illinois, No. 99 MR 0071 against the Company, and the other defendants in the
Thermodyne Action (except for McDonald's). Carriers allege that they are
subrogated to contribution claims McDonald's may have against the Company
arising from the Thermodyne Action. Count I purports to state a claim for
contribution under 740 ILCS 100/0.01 et. Seq. for the Company's alleged
misappropriation of trade secrets, and seek judgment "in an amount equal to the
relative degree of fault found attributable to the defendants in the Thermodyne
Action." Count II purports to allege contribution claims arising from OSI's
alleged tortious interference with the contract and seeks the same relief sought
in Count I. Counts III and IV are not brought against the Company. The complaint
was dismissed with prejudice on June 17, 1999. Plaintiffs time to appeal has not
yet begun to run. Management believes that the Company will not suffer a
material loss related to this action.
Specialty and certain of its current and former directors are named as
defendants in an action filed by Virginia A. Noerr, who claims to own shares of
the Company's common stock. The action "Noerr v. Greenwood et al.," C.A. No.
14320, is pending in the Court of Chancery for the State of Delaware in and for
New Castle County, Delaware. Plaintiff purports to bring this action both as a
class action on behalf of all stockholders of record on April 2, 1993 and
derivatively for the benefit of the Company. Plaintiff's complaint, which has
twice been amended, asserts that (i) the defendants breached their fiduciary
duties to the Company by soliciting stockholder approval of the Company's
Executive Long-Term Incentive Plan and Non-Employee Directors Long-Term
Incentive Plan by means of a misleading proxy statement and (ii) the Board
breached its fiduciary duty in approving such option plans. The complaint seeks
an order declaring the stockholder approval of those option plans void,
canceling the options granted thereunder, enjoining the directors from
exercising any such options, imposing a constructive trust for the benefit of
Specialty upon any profits the individual named defendants may have made through
exercise of their options, requiring an accounting in connection therewith, and
awarding unspecified damages plus plaintiff's attorneys' fees and expenses in an
unspecified amount. The most recent amended complaint was filed after the court
granted in part the defendants' joint motion to dismiss the complaint, striking
certain non-disclosure claims; the court's order, however, denied the remainder
of defendants' motion to dismiss. Specialty and the individual defendants
believe that the allegations made in the complaint as amended are without merit
and are factually incorrect and Specialty intends to contest these allegations
vigorously. The individual defendants have each made demand upon Specialty for
indemnification with respect to this action. Management believes that if
Specialty were liable to the individual defendants for indemnification, the
uninsured portion of such liability would not be material.
21
<PAGE> 22
Environmental and Related Matters
On May 5, 1994, Specialty (doing business as Taylor Freezer Company) was among
more than 80 parties notified as potential third-party defendants in an action
involving the clean up of the MIG/Dewane Landfill near Belvidere, Illinois. A
third-party complaint has been filed by the principal owners and operators of
the landfill. Those owners and operators were sued by the principal users of the
landfill who in turn had been sued by the Environmental Protection Agency
("EPA") in April 1992. The complaint seeks contribution for the proposed clean
up of the site. The Company has not received settlement offers from the EPA, but
it settled its alleged liability with the private plaintiffs for $54,000 of the
costs associated with the remedial investigation of the site. In addition, the
Company has incurred a minimal expense associated with the administration of
this matter. Specialty has not settled its alleged liability for clean up costs
at the site. Beatrice Company (ConAgra) has assumed defense of the matter and
has agreed to defend and indemnify Specialty for claims related to the
MIG/Dewane site to the extent they are related to Taylor and the events giving
rise to the claims occurred during the Beatrice Company (ConAgra) period of
ownership. Based upon presently available information, management does not
believe this matter will have a material effect on Specialty's results of
operations or financial condition.
Routine Matters
In addition, Specialty is routinely involved in other litigation, including
environmental matters, incidental to its business. Such routine claims are being
vigorously contested and management does not believe that the outcome of such
litigation will have a material adverse effect upon the financial condition of
the Company.
22
<PAGE> 23
EXECUTIVE OFFICERS OF SPECIALTY EQUIPMENT COMPANIES, INC.
<TABLE>
<CAPTION>
Year First Joined
Specialty or a
Name Age Predecessor Business Position and Offices Held
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Daniel B. Greenwood 80 1955 Director and Chairman of the Board
Jeffrey P. Rhodenbaugh 46 1986 Chief Executive Officer, President, Chief
Operating Officer, Chief Executive Officer
of Taylor and Director
Donald K. McKay 68 1977 Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
William W. Robertson 69 1970 Chairman and Chief Executive Officer of
Beverage-Air
</TABLE>
Mr. Greenwood has served as Chairman of the Board since January 1985. He also
served as Chief Executive Officer from that date until September 1988 and from
November 18, 1993 to January 31, 1995. Mr. Greenwood has served as a director
since January 1985. Prior to January 1985, he was employed by Taylor for 30
years, most recently as President.
Mr. Rhodenbaugh has been President and Chief Operating Officer of the Company
and Chief Executive Officer of Taylor since September 1996. He became Chief
Executive Officer of the Company on May 1, 1997. He was elected to the Board of
Directors on April 30, 1997. He was President of Beverage-Air from March 1996 to
September 1996. From April 1993 to March 1996, he served as Executive Vice
President of Beverage-Air. He also served a Vice President of Marketing from
January 1991 to September 1996. He served as President of Wells from January
1990 to January 1991, and as Wells' Vice President of Sales and Marketing from
1986 to January 1990.
Mr. McKay has served as Executive Vice-President, Chief Financial Officer,
Treasurer and Secretary since April 1989. From January 1985 until April 1989,
Mr. McKay served as Vice President of Finance, Treasurer and Secretary. From
September 1988 to March 1992, Mr. McKay served as a director of the Company.
From 1977 to January 1985, Mr. McKay was employed by Beatrice, most recently as
Vice-President of its Commercial Equipment Division.
Mr. Robertson has been employed by Beverage-Air since 1970 and has been Chief
Executive Officer of Beverage-Air since 1974. Since May 1998, Mr. Robertson has
also served as Chairman of Beverage-Air (a position he previously held from
March 1996 to September 1996). From 1974 until March 1, 1996, and from September
1996 to May 1998, Mr. Robertson served as President of Beverage-Air. From April
1987 to March 1992, Mr. Robertson served as one of Specialty's directors.
23
<PAGE> 24
PART II
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders in the fourth quarter of
the year ended January 31, 2000.
ITEM 5. MARKETS FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Specialty's Common Stock is listed on the New York Stock Exchange. The Common
Stock began trading on the New York Stock Exchange on December 29, 1998. From
December 1, 1993 until that time, the Common Stock traded on the Nasdaq Stock
Market. As of the close of business on March 31, 2000, there were approximately
60 holders of record of the shares of the Common Stock. We estimate that there
are approximately 1,300 beneficial holders of the Common Stock as of the close
of business on March 31, 2000. The closing price of the Common Stock on March
31, 2000 as reported by the New York Stock Exchange was $20.75. The following
table sets forth the market price per share for the Common Stock.
<TABLE>
<CAPTION>
MARKET PRICE
HIGH LOW
<S> <C> <C>
Period from February 1, 1997 to April 30, 1997 14-1/8 12-1/8
Period from May 1, 1997 to July 31, 1997 16-1/4 12-1/4
Period from August 1, 1997 to October 31, 1997 17-1/2 14-3/4
Period from November 1, 1997 to January 31, 1998 17-3/8 15-1/2
Period from February 1, 1998 to April 30, 1998 23-3/4 16-5/8
Period from May 1, 1998 to July 31, 1998 24-3/8 20
Period from August 1, 1998 to October 31, 1998 23 18
Period from November 1, 1998 to January 31, 1999 28-15/16 21-7/8
Period from February 1, 1999 to April 30, 1999 30 25
Period from May 1, 1999 to July 31, 1999 34-1/8 25-1/4
Period from August 1, 1999 to October 31, 1999 25-7/8 20-7/16
Period from November 1, 1999 to January 31, 2000 24-3/8 17-1/2
</TABLE>
Since 1992, Specialty has not paid any dividends on its Common Stock. Specialty
does not have any present intention to pay dividends in the foreseeable future.
Specialty's ability to pay dividends is restricted by covenants contained in the
BA Bank Facility.
24
<PAGE> 25
ITEM 6. SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The following table sets forth selected consolidated financial and operating
data for Specialty for the periods and at the dates indicated. The selected
consolidated operating and financial data, at or for each of the full fiscal
years, presented below was derived from the Consolidated Financial Statements of
Specialty, which were audited by KPMG LLP, independent certified public
accountants. The table should be read in conjunction with the Consolidated
Financial Statements, related notes, and other financial information.
SELECTED FINANCIAL DATA
(IN THOUSANDS, EXCEPT RATIO AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEARS ENDED JANUARY 31,
OPERATING DATA: 1996 1997 1998 1999 2000
------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net revenue $ 392,512 $ 401,230 $ 433,121 $ 495,647 $502,119
Gross margin 123,747 122,110 133,899 156,758 157,969
Earnings from operations before
interest expense and income taxes 39,379 60,723 63,043 74,124 71,966
Earnings before extraordinary item 8,911 34,122 37,542 44,025 44,369
Net earnings 8,693 32,338 37,542 37,601 44,369
Net earnings per diluted common share 0.44 1.61 1.86 1.86 2.22
Interest expense 21,010 18,714 15,944 14,068 7,964
Ratio of earnings to fixed charges (1) 1.81x 3.07x 3.85x 5.10x 8.77x
FINANCIAL RATIOS AND OTHER DATA:
EBITDA (2) $ 65,973 $ 66,992 $ 68,882 $ 80,625 $78,968
Depreciation 4,309 4,616 4,871 5,352 5,971
Amortization (3) 22,285 1,653 968 1,149 1,031
Capital expenditures 5,666 9,185 4,715 7,527 11,603
Ratio of EBITDA to interest expense 3.14x 3.58x 4.32x 5.73x 9.92x
Ratio of EBITDA less capital expenditures to
Interest expense 2.87x 3.09x 4.02x 5.20x 8.46x
<CAPTION>
JANUARY 31,
BALANCE SHEET DATA (AT PERIOD END): 1996 1997 1998 1999 2000
-----------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Total assets $ 180,235 $ 176,916 $ 241,450 $ 236,745 $265,316
Cash and cash equivalents, including
restricted cash equivalents 34,320 10,846 42,609 6,814 1,561
Long-term debt, including
current installments 193,215 155,581 177,986 128,515 127,335
Total other liabilities 94,641 92,566 102,275 108,154 110,604
Total stockholders' equity (deficit) (107,621) (71,231) (38,811) 76 27,377
</TABLE>
1. For purposes of determining this ratio, earnings consist of earnings (loss)
from operations before income tax expense (benefit) plus interest expense
and amortization of deferred financing costs. Fixed charges consist of
interest expense, plus amortization of deferred financing costs.
2. EBITDA is defined as earnings from operations before interest expense,
income taxes, depreciation and amortization. EBITDA does not represent
earnings from operating activities as defined by generally accepted
accounting principles and should not be considered as an alternative to net
earnings as an indicator of the Company's operating performance or to cash
flows as a measure of liquidity, but rather provides additional information
related to debt service capability.
3. Amortization expense includes the amortization of deferred financing costs,
reorganization value in excess of amounts allocable to identifiable assets,
goodwill, other intangible assets and unearned compensation.
25
<PAGE> 26
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
We derive a substantial portion of our revenue from the sale of new foodservice
equipment. Sales are generally to national quick service restaurant chains,
beverage companies, convenience store chains and specialty chains. Typically
sales result from new store openings, store modifications or replacement of
existing equipment. Since 1991, the foodservice equipment market has grown,
primarily as a result of the domestic and international growth of the major U.S.
restaurant chains. In 1998 (the most recent available data), the domestic
operating unit growth rate of U. S. major restaurant chains was 1.7%. In
addition, the major quick service restaurant chains have commenced significant
international expansion. In 1998, the operating unit growth rate of the four
largest U.S. restaurant chains in international markets was nearly 9%. Our
largest customer, McDonald's, increased its international units by more than 15%
in 1998. McDonald's alone accounts for more than 50% of all international sales
realized by the four largest U.S. restaurant chains. Also, our quick service
restaurant industry customers have increased their demand for newer equipment,
due in part to international expansion, menu expansion efforts, remodeling of
existing stores and an increased emphasis on improved sanitation and labor and
energy efficiency. In a similar manner, the soft drink beverage companies have
embarked on domestic and international expansion with regard to the marketing
and placement of their products. From 1994 to 1999, worldwide unit sales of soft
drink beverages grew at an average rate of 6%. In 1999, however, the worldwide
unit growth of soft drink beverages fell to 2%. During fiscal 1999, sales to
CCE, our second largest customer, was 11% of our total sales. During fiscal 1998
and fiscal 2000, sales to CCE were less than 10% of total sales. Management
believes that, given our historic relationships with the major quick service
restaurant chains, bottlers and brewers, we are well positioned to capitalize
upon these growth opportunities.
Our financial performance is tied closely to our major customers' demands for
large quantities of mass produced customized products, or roll-outs. For
example, from fiscal 1997 through fiscal 1999, our improved performance can be
partially attributed to a continuing significant rise in the number of orders
for refrigerated point-of-purchase displays by soft drink bottlers, primarily
those associated with Coca-Cola and PepsiCo products. In fiscal 2000, sales to
the soft drink bottlers declined from their fiscal 1999 level. In the past,
large roll-outs of products such as Taylor's fiscal 1999 frozen dessert program
for a major customer have been similarly significant to our performance.
However, the ability to predict which customers and which products will
experience roll-outs is limited, and there can be no assurances that in any year
we will receive orders for any roll-outs.
The Foodservice Industry is highly fragmented and continues to consolidate.
Specialty's free cash flow provides flexibility in pursuing acquisitions.
Management considers its strategy to be one of integration not consolidation. We
seek profitable companies that have leading market positions and brand names,
synergies with existing businesses and innovative design capabilities.
26
<PAGE> 27
RESULTS OF OPERATIONS
FISCAL YEAR ENDED JANUARY 31, 2000 COMPARED TO FISCAL YEAR ENDED JANUARY 31,
1999.
Revenue
Revenue for fiscal 2000 increased 1.3% to $502.1 million compared with $495.6
million for the prior fiscal year. The revenue increase was primarily
attributable to the four months of sales of Carter-Hoffmann ($8 million) which
was not included in the prior year results, and increased sales of refrigeration
equipment to foodservice customers, freezer equipment, and cooking grills. The
sales increases were offset in large part by reduced shipments of refrigeration
equipment to the soft drink bottler customers. Revenue attributable to sales of
products for use outside the United States decreased by 6.4% in fiscal 2000 as
compared with fiscal 1999. The decrease compared with the prior year was due to
a roll-out of refrigeration equipment to international markets in fiscal 1999.
Fiscal 2000 revenue from sales of products for use outside the United Sates
constituted 26.3% of revenue compared with 28.5% in fiscal 1999.
Gross Margin
Gross margin for fiscal 2000 increased 0.8% to $158.0 million, compared with
$156.8 million in fiscal 1999. As a percent of revenue, gross margin decreased
from 31.6% in fiscal 1999 to 31.5% in fiscal 2000.
Selling, General and Administrative Expenses (SG&A)
SG&A expenses for fiscal 2000 increased 4.1% to $86.0 million compared with
$82.6 million in fiscal 1999. As a percent of revenue, SG&A increased from 16.6%
to 17.2% of revenue in fiscal 2000 as compared to fiscal 1999. Contributing
factors to the increased expenses were research and development expense
increases ($1.7 million) and the SG&A expenses of Carter-Hoffman ($2.2 million).
Interest Expense
Interest expense for fiscal 2000 decreased 43.4% to $8.0 million from $14.1
million in fiscal 1999. The decrease is principally due to a decrease in our
cost of funds resulting from the early retirement of the Notes in December 1998.
Income Taxes
Income tax expense for fiscal 2000 increased 22.3% to $19.6 million from $16.0
million in fiscal 1999. The increase in tax expense is largely attributable to a
reduction in the amount of tax benefits recognized primarily related to the
valuation allowance. In fiscal 2000 the Company recognized $4.5 million as a
result of the change in the valuation allowance compared with $6.5 million in
fiscal 1999. This non-cash benefit has been fully utilized as of January 31,
2000 and will not reoccur in fiscal 2001.
FISCAL YEAR ENDED JANUARY 31, 1999 COMPARED TO FISCAL YEAR ENDED JANUARY 31,
1998.
Revenue
Revenue for fiscal 1999 increased 14.4% to $495.6 million compared with $433.1
million for the prior fiscal year. The revenue increase was primarily
attributable to increased sales of refrigeration equipment to the soft drink
beverage companies and the inclusion
27
<PAGE> 28
of a full year of sales by Gamko; the prior year's financial results included
Gamko only from August 1997, which is when we acquired Gamko. Revenue
attributable to sales of products for use outside the United States increased by
1.5% in fiscal 1999, as compared with fiscal 1998. Fiscal 1999 revenue from
sales of products for use outside the United Sates constituted 28.5% of revenue
compared with 32.1% in fiscal 1998.
Gross Margin
Gross margin for fiscal 1999 increased 17.1% to $156.8 million, compared with
$133.9 million in fiscal 1998. As a percent of revenue, gross margin increased
from 30.9% in fiscal 1998 to 31.6% in fiscal 1999. The increase in gross margin
percentage was largely a result of a favorable sales mix, attributable in part
to the integration of Gamko.
Selling, General and Administrative Expenses (SG&A). SG&A expenses for fiscal
1999 increased 16.6% to $82.6 million compared with $70.9 million in fiscal
1998. As a percent of revenue, SG&A increased from 16.4% to 16.7% of revenue,
respectively, in fiscal 1999 as compared to fiscal 1998. The increase in fiscal
1999 SG&A expenses was primarily due to higher sales during fiscal 1999.
Contributing factors to the increased expenses were product development and
including Gamko for a full year in fiscal 1999 versus six months in fiscal 1998.
Interest Expense
Interest expense for fiscal 1999 decreased 11.9% to $14.1 million from $15.9
million in fiscal 1998. The decrease is principally due to a decrease in total
borrowings, and a decrease in our cost of funds resulting from our early
retirement of the Notes.
Income Taxes
Income tax expense for fiscal 1999 increased 67.5% to $16.0 million from $9.6
million in fiscal 1998. The increase in tax expense is largely attributable to
increased earnings before income taxes of approximately $12.9 million, which
increased income tax expense by approximately $4.9 million. Tax expense for
fiscal 1999 included recognition of tax benefits primarily related to the $6.5
million reduction in the valuation allowance. The remaining valuation allowance
of $8.6 million at January 31, 1999 is expected to be eliminated in fiscal 2000
with $4.5 million to be recorded as a deferred tax benefit and the balance to be
credited to equity. Tax expense for fiscal 1998 included recognition of tax
benefits primarily related to the $7.0 million reduction in the valuation
allowance.
28
<PAGE> 29
The following table sets forth selected operating data as a percentage of net
revenue:
Fiscal Fiscal Fiscal
1998(%) 1999 (%) 2000 (%)
-------------------------------
Beverage-Air 43.4 46.3 42.7
Carter-Hoffmann (a) - - 1.7
Taylor 36.9 32.5 33.6
Specialty Equipment International (b) 3.0 6.3 6.9
Wells/Bloomfield 13.4 11.6 11.8
World Dryer 3.3 3.3 3.3
-------------------------------
Net revenue 100.0 100.0 100.0
Gross margin 30.9 31.6 31.5
Selling, general and administrative expenses 16.3 16.6 17.2
------------------------------
Earnings from operations 14.6 15.0 14.3
Interest expense, net (3.7) (2.9) (1.6)
Income taxes (2.2) (3.2) (3.9)
------------------------------
Earnings before extraordinary item 8.7 8.9 8.8
===============================
(a) Acquired in September 1999.
(b) Acquired in August 1997.
LIQUIDITY AND CAPITAL RESOURCES
Total cash flows provided by operations were $47.0 million, $22.0 million and
$61.0 million in fiscal 1998, 1999 and 2000, respectively. These amounts
primarily represent net earnings plus depreciation and amortization and the
impact of cash flows from working capital requirements. The increase in total
cash flows from operations for fiscal 2000 resulted from an increase in cash
flows from working capital.
Net cash used in investing activities amounted to $25.9 million, $4.8 million,
and $43.6 million in fiscal 1998, 1999 and 2000, respectively. Fiscal 2000
includes the acquisition of Carter-Hoffmann for approximately $29.2 million.
Capital expenditures were $11.6 million in fiscal 2000 compared to $7.5 million
in fiscal 1999. Fiscal 1998 included $21.6 million used for acquisition of
businesses, primarily Gamko. Management expects capital spending to be
approximately $10.0 million in the next fiscal year.
Net cash provided by (used in) financing activities amounted to $13.8 million,
$(50.0) million and $(23.4) million in fiscal 1998, 1999 and 2000, respectively.
In fiscal 2000 Specialty acquired $27.4 million of treasury stock. During fiscal
1999, Specialty acquired $31.4 million of the Notes on the open market and
called the remaining $117.6 million of Notes on December 1, 1998 in accordance
with the terms of the indenture under which we issued the Notes. In fiscal 1998,
in connection with the Gamko acquisition, we obtained bank financing of $18.0
million. On December 1, 1998, we entered into a $200 million, five year,
unsecured revolving credit facility (the "BA Bank Facility") to refinance the
Notes, the Company's old Credit Agreement and the $18 million Gamko bank
financing.
As of January 31, 2000, we had $113 million of borrowings under the BA Bank
Facility for working capital purposes and $12.2 million of letters of credit. As
of that date, we had approximately $80.2 million available for additional
borrowings under this facility.
29
<PAGE> 30
Interest rates under the BA Bank Facility equal LIBOR, (5.82% at January 31,
2000) plus 0.875% for the revolving line of credit.
Specialty reported working capital of $57.7 million as of January 31, 2000.
Specialty's average operating working capital (defined as average monthly gross
accounts receivable and net inventory less accounts payable) as a percentage of
sales increased from 21% during fiscal 1998 to 23% during fiscal 2000.
In September 1997, Specialty announced its intention to acquire up to $10
million of its common stock in open market and private transactions. In August
1998, the Company had completed the buyback, acquiring a total of 567,364 shares
at a total cost of $10 million. In April 1999, Specialty announced its intention
to acquire one million shares of its common stock. In January 2000, the buy-back
had been completed for a total cost of $27.4 million.
Specialty's earnings from operations were sufficient to cover fixed charges by
$47.1 million, $60.0 million and $64.0 million for fiscal 1998, fiscal 1999 and
fiscal 2000, respectively. Specialty's earnings before interest, taxes,
depreciation and amortization (EBITDA) exceeded its fixed charges by $52.4
million, $66.0 million and $71.0 million for fiscal 1998, 1999 and 2000,
respectively.
The BA Bank Facility includes two financial covenants which Specialty was
required to meet on January 31, 2000. The first financial covenant is a total
funded debt to cash flow ratio for the twelve months ended January 31, 2000,
which could not exceed 3.50:1.00. The second covenant is an interest coverage
ratio which had to be at least 3.50:1.00. Specialty met each of these covenants
as it reported a total funded debt to cash flow ratio for the twelve months
ended January 31, 2000 of 1.61:1.00; and an interest coverage ratio for the
twelve months ended January 31, 2000 of 9.48:1.00.
Management believes that the sources of capital described above, together with
internally generated funds, will be adequate to meet our anticipated capital and
cash requirements for the foreseeable future, including debt service and
corporate income taxes. Specialty experiences certain seasonal fluctuations in
its working capital requirements. See "Item 1 - Seasonality."
IMPACT OF INFLATION
Management does not believe that inflation has had a material impact on
Specialty's operations during fiscal 2000. Management believes that Specialty
may face increasing costs in the upcoming fiscal year as a result of inflation
which Specialty may not fully be able to offset with increased productivity or
pass on to its customers due to competitive factors within the industry.
ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standard ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes accounting and reporting
standards for derivative instruments and hedging activities. Specialty is
required to comply with SFAS No. 133 in fiscal year 2001. Specialty has not
evaluated the impact of SFAS No. 133 on the consolidated financial statements.
30
<PAGE> 31
EURO CURRENCY
Specialty derived approximately 13% of its revenue in fiscal 2000 from Western
Europe. Historically, transactions in Western Europe have been denominated
primarily in U.S. currency, however transactions by Gamko and Coolpart are
denominated in a variety of European currencies.
On January 1, 1999, eleven of the fifteen member countries of the European Union
adopted the Euro as their common legal currency. Following the introduction of
the Euro, the local currencies were scheduled to remain legal tender in the
participating countries until January 1, 2002. During this transition period,
goods and services may be paid for using either the Euro or the participating
country's local currency. Thereafter, the local currencies will be canceled and
the Euro currency will be used for all transactions between the eleven
participating members of the European Union.
The Euro conversion raises strategic as well as operational issues. The
conversion is expected to result in a number of changes, including the
stimulation of cross-border competition by creating cross-border price
transparency. We are evaluating the implications of the Euro conversion,
particularly on Gamko, and are uncertain as to the potential impacts on our
operations.
SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS UNDER THE SECURITIES LITIGATION
REFORM ACT OF 1995
This 10-K includes a number of statements which relate to anticipated future
events (forward looking statements) rather than actual present conditions or
historical events. You can identify forward-looking statements because generally
they include words such as "believes", "expects", "intends", "anticipates",
"estimates", and similar expressions or the negatives of such expressions.
Forward-looking statements, by their nature, are subject to a variety of risks
and uncertainties that could cause actual results to differ materially from the
results expected in the forward looking statement. Many of these risks and
uncertainties cannot be controlled by Specialty. Some examples of these risks
and uncertainties are:
o general domestic and global economic conditions and their impact on
the growth of the quick service restaurant and soft drink bottler
industries;
o Specialty's dependence on its major customers and key management
personnel;
o the effect of changing environmental, product safety and other
regulations upon our business;
o the effects of competition;
o the significance of our outstanding indebtedness;
o the economic, currency, social, political and other issues which
are raised by increasing expansion into foreign markets; and
o the ability to identify, consummate and integrate acquisitions.
Other factors detailed elsewhere from time to time in our filings with the
Securities and Exchange Commission also may have an impact on the ultimate
reliability of our forward-looking statements.
31
<PAGE> 32
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Specialty is subject to certain market risks, including foreign currency and
interest rates. Specialty is exposed to potential gains or losses from foreign
currency fluctuations affecting net investments and earnings denominated in
foreign currencies. The Company's primary exposure is to changes in exchange
rates for the U.S. Dollar versus the Dutch Guilder.
In fiscal year 2000, the net change in the cumulative foreign currency
translation adjustments account, which is a component of stockholders' equity,
was an unrealized loss of $540,000. Unrealized foreign currency translation
losses of $117,000 and $85,000 were recognized in fiscal 1998 and fiscal 1999,
respectively.
Specialty is a purchaser of steel. Specialty generally buys steel based upon
market prices that are established with the vendor as part of the purchase
process. Specialty does not use commodity financial instruments to hedge steel
prices due to a high correlation between commodity cost and the ultimate selling
price of its products.
Specialty's exposure to interest rate risk relates primarily to its debt
obligations and temporary cash investments. In January 2000, Specialty entered
into an extendable swap agreement with Bank of America and Bank One. This
agreement exchanged $45 million of Specialty's one month variable LIBOR interest
rate debt for a fixed one month LIBOR instrument at a rate of 6.26%. The
agreement expires on January 8, 2001, but may be extended at the banks option
until January 2003. Interest rate risk on the remaining debt is managed through
variable rate borrowings with varying maturities. At January 31, 2000, $68.0
million was issued at variable rates. Specialty has not used in the past fiscal
years, any derivative financial instruments relating to the risk associated with
changes in interest rates.
The table below presents principal amounts and related weighted average interest
rates by year of maturity for the Company's investments and debt obligations:
<TABLE>
<CAPTION>
FISCAL YEARS ENDED
(in thousands) 01 02 03 04 05 THEREAFTER TOTAL
----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Assets:
Cash equivalents $1,561 $ - $ - $ - $ - $ - $ 1,561
Variable interest rate 4.2% - - - - - 4.2%
Liabilities:
Long-term debt variable rate $ 961 $ - $ - $113,000 $ - $13,374 $127,335
Avg. variable interest rate 5.6% - - 6.7% - 4.0% 6.4%
</TABLE>
Specialty is exposed to credit risk on certain assets, primarily accounts
receivable. Specialty provides credit to customers in the ordinary course of
business and performs ongoing credit evaluations. Specialty currently believes
its allowance for doubtful accounts is sufficient to cover customer credit
risks.
32
<PAGE> 33
Settlement of foreign sales and purchases are generally denominated in U.S.
currency, except for sales by SEI, resulting in limited foreign currency
transaction exposure. Sales by SEI are denominated in a variety of foreign
currencies.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The following pages contain the Financial Statements and Supplementary Data as
required by Item 8 of Part II of Form 10-K.
33
<PAGE> 34
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders of Specialty Equipment Companies, Inc.:
We have audited the accompanying consolidated balance sheets of Specialty
Equipment Companies, Inc. (the Company) and subsidiaries as of January 31, 1999
and 2000, and the related consolidated statements of earnings, stockholders'
equity and comprehensive income and cash flows for each of the years in the
three-year period ended January 31, 2000. In connection with our audits of the
consolidated financial statements, we also have audited the financial statement
schedule as listed in Item 14(a)(2). These consolidated financial statements and
financial statement schedule are the responsibility of the Company's management.
Our responsibility is to express an opinion on these consolidated financial
statements and financial statement 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 financial position of Specialty Equipment
Companies, Inc. and subsidiaries as of January 31, 1999 and 2000, and the
results of their operations and their cash flows for each of the years in the
three-year period ended January 31, 2000, in conformity with generally accepted
accounting principles. Also in our opinion, the related financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly, in all material respects, the
information set forth therein.
/s/ KPMG LLP
KPMG LLP
Chicago, Illinois
March 17, 2000
34
<PAGE> 35
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
January 31,
1999 2000
---------------------
ASSETS
Current assets:
Cash and cash equivalents $ 6,814 $ 459
Accounts receivable, net 76,283 71,501
Inventories 65,535 64,133
Deferred income taxes 20,410 27,938
Other current assets 4,704 3,411
---------------------
Total current assets 173,746 167,442
Property, plant and equipment, net 40,954 51,406
Restricted cash equivalents - 1,102
Goodwill 15,281 29,665
Other intangibles, net 6,398 15,357
Other assets 366 344
---------------------
Total assets $236,745 $265,316
=====================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt $ - $ 961
Accounts payable 31,723 31,932
Accrued liabilities 70,220 69,921
Accrued income taxes 4,621 6,883
---------------------
Total current liabilities 106,564 109,697
Long-term debt, excluding current installments 128,515 126,374
Other non-current liabilities 1,590 1,868
Stockholders' equity:
Common stock, $.01 par value, 25 million shares
authorized, 19,010,141 and 19,349,533 shares
issued and outstanding at January 31, 1999 and
2000, respectively 190 193
Additional paid-in capital 62,962 68,999
Accumulated deficit (50,440) (35,525)
Accumulated other comprehensive income (2,637) (1,682)
Treasury stock, at cost, 567,364 and 192,906 shares
at January 31, 1999 and 2000, respectively (9,999) (4,608)
---------------------
Total stockholders' equity 76 27,377
---------------------
Total liabilities and stockholders' equity $236,745 $265,316
=====================
The accompanying notes are an integral part of these consolidated statements.
35
<PAGE> 36
SPECIALTY EQUIPMENT COMPANIES, INC.
CONSOLIDATED STATEMENTS OF EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Years Ended January 31,
1998 1999 2000
------------------------------------
<S> <C> <C> <C>
Net revenue $433,121 $495,647 $502,119
Cost of sales 299,222 338,889 344,150
------------------------------------
Gross margin 133,899 156,758 157,969
Selling, general and administrative expenses 70,856 82,634 86,003
------------------------------------
Earnings from operations 63,043 74,124 71,966
Interest expense, net 15,944 14,068 7,964
------------------------------------
Earnings from operations before income taxes 47,099 60,056 64,002
Income taxes 9,557 16,008 19,577
Minority interest - 23 56
------------------------------------
Earnings before extraordinary item 37,542 44,025 44,369
Extraordinary item, net of taxes - (6,424) -
------------------------------------
Net earnings $ 37,542 $ 37,601 $44,369
====================================
Basic earnings per share before extraordinary item $ 2.07 $ 2.41 $ 2.36
Extraordinary item - (0.35) -
------------------------------------
Basic earnings per share $ 2.07 $ 2.06 $ 2.36
====================================
Diluted earnings per share before extraordinary item $ 1.86 $ 2.18 $ 2.22
Extraordinary item - (0.32) -
------------------------------------
Diluted earnings per share $ 1.86 $ 1.86 $ 2.22
====================================
Weighted average shares outstanding - basic 18,143 18,280 18,761
Weighted average shares outstanding - diluted 20,205 20,202 19,959
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
36
<PAGE> 37
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
AND COMPREHENSIVE INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
Additional Other Accumulated
Common Paid-in Acc. Comp. Treasury Comp.
Stock Capital Deficit Income Stock Income
---------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at January 31, 1997 $ 180 $ 54,501 $(125,583) $ (329) $ -
Net earnings - - 37,542 - - $37,542
Exercise of stock options 5 1,521 - - - -
Tax benefit of stock options - 3,065 - - - -
Options withheld for taxes - (1,885) - - - -
Treasury stock acquired - - - - (6,614) -
Utilization of NOL carryforward - 1,092 - - - -
Minimum pension liability - - - (2,189) - (2,189)
Foreign currency translation - - - (117) - (117)
-------------------------------------------------------------------
Balance at January 31, 1998 185 58,294 (88,041) (2,635) (6,614) $35,236
=======
Net earnings - - 37,601 - - $37,601
Exercise of stock options 5 1,260 - - - -
Tax benefit of stock options - 4,756 - - - -
Options withheld for taxes - (2,440) - - - -
Treasury stock acquired - - - - (3,385) -
Utilization of NOL carryforward - 1,092 - - - -
Reversal of minimum
pension liability - - - 83 - 83
Foreign currency translation - - - (85) - (85)
------------------------------------------------------------------
Balance at January 31, 1999 190 62,962 (50,440) (2,637) (9,999) $37,599
=======
Net earnings - - 44,369 - - $44,369
Exercise of stock options
and warrant 3 666 - - - -
Tax benefit of stock options - 7,629 - - - -
Options withheld for taxes - (6,338) - - - -
Treasury stock acquired - - - - (27,440) -
Treasury stock reissued - - (29,454) - 32,831 -
Utilization of NOL carryforward - 1,092 - - - -
Reduction of valuation allowance
Related to pre-reorganization
NOL's - 2,988 - - -
Reversal of Minimum
pension liability - - - 1,495 - 1,495
Foreign currency translation - - - (540) - (540)
-------------------------------------------------------------------
Balance at January 31, 2000 $ 193 $ 68,999 $ (35,525) $(1,682) $ (4,608) $45,324
===================================================================
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
37
<PAGE> 38
SPECIALTY EQUIPMENT COMPANIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Years Ended Jan. 31,
1998 1999 2000
----------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 37,542 $ 37,601 $44,369
Items not affecting cash:
Depreciation 4,856 5,381 5,965
Amortization 968 3,043 1,031
Deferred income taxes (5,100) (5,100) (4,540)
Utilization of net operating loss carryforward 1,092 1,092 1,092
Changes in current assets and liabilities (excluding
effects of business acquired):
Accounts receivable (4,787) (13,240) 8,121
Inventories 4,335 (11,505) 6,003
Other current assets 3,141 (1,561) 1,244
Accounts payable and other current liabilities,
excluding current installments of long-term debt 4,944 6,261 (2,320)
----------------------------------
Net cash provided by operating activities 46,991 21,972 60,965
Cash flows from investing activities:
Additions to property, plant and equipment (4,715) (7,527) (11,603)
Disposal of property, plant and equipment 49 42 39
Cash equivalents restricted for capital additions 397 2,662 (1,102)
Businesses acquired (21,584) - (30,891)
----------------------------------
Net cash used in investing activities (25,853) (4,823) (43,557)
Cash flows from financing activities:
Net increase (decrease) in revolving credit facilities - 120,000 (7,000)
Proceeds from long-term debt 18,000 - 5,200
Repayments of long-term debt (264) (169,075) 620
Financing costs - (1,090) (130)
Proceeds from exercise of stock options 1,526 1,260 4,046
Tax benefit of stock options exercised 3,065 4,756 7,629
Options withheld for taxes (1,885) (2,440) (6,338)
Acquisition of treasury stock (6,614) (3,385) (27,440)
---------------------------------
Net cash provided by (used in) financing activities 13,828 (49,974) (23,413)
Other, net (2,806) (308) (350)
----------------------------------
Net increase (decrease) in cash 32,160 (33,133) (6,355)
Cash:
Beginning of period 7,787 39,947 6,814
----------------------------------
End of period $ 39,947 $ 6,814 $459
==================================
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
38
<PAGE> 39
JANUARY 31, 1998, 1999 AND 2000
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION OF BUSINESS
Specialty Equipment Companies, Inc. (the "Company") is a manufacturer of a
diversified line of highly engineered commercial and institutional foodservice
equipment that is used by a variety of commercial foodservice operators
including quick service restaurant chains, other commercial restaurants,
convenience store chains, specialty chains, soft drink bottlers and
institutional foodservice operators.
The Company was incorporated on November 28, 1984 in the State of Delaware. All
of the significant U. S. operations are conducted through Specialty Equipment
Manufacturing Corporation, a wholly-owned subsidiary of the Company, which was
organized on January 31, 1998. Quaboes B.V., acquired in order to facilitate the
acquisition of Gamko Holding B.V. ("Gamko"), and Gamko are wholly-owned
subsidiaries of the Company, based in The Netherlands. Carter-Hoffmann is a
wholly-owned subsidiary of the Company. Bloomfield Industries Canada Limited is
a wholly-owned subsidiary of the Company. Taylor Freezer International, S.r.l.,
Taylor Freezer (Cyprus) Ltd., Taylor-Chicago Corp. and Coolpart B.V. are
wholly-owned subsidiaries of the Company. FM Manufacturing, Inc. (formerly known
as Market Forge Co.) is a wholly-owned subsidiary, but has not had any
operations since October 1993. Included in revenue are export sales principally
to Europe, Asia and Latin America.
Effective August 1, 1997, a wholly owned subsidiary of the Company acquired
Gamko for $21 million in cash. Gamko is based in The Netherlands and is engaged
in the manufacture and sale of refrigeration equipment to the foodservice
industry. On September 30, 1999 the Company acquired Carter-Hoffmann for $29
million in cash. The acquisitions have been accounted for by the purchase method
and, accordingly, the results of operations of Gamko have been included in the
Company's consolidated financial statements from August 1, 1997, and
Carter-Hoffmann since October 1, 1999. The excess of the purchase price over the
fair value of the net identifiable assets acquired has been recorded as goodwill
and is being amortized on a straight-line basis over 40 years.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
a. Principles of Consolidation and Report Preparation The consolidated
financial statements include the accounts of the Company and its wholly-owned
subsidiaries. All significant intercompany balances and transactions are
eliminated in consolidation. Certain reclassifications have been made to the
prior years' financial statements to conform with the current year presentation.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect reported results of operations, financial position and various
disclosures. Actual results could differ from those estimates.
39
<PAGE> 40
b. Cash and Cash Equivalents
The Company considers all short-term deposits with a maturity of three months or
less to be cash equivalents.
c. Inventories
The Company values domestic inventories at the lower of last-in, first-out
(LIFO) cost or market.
d. Property, Plant and Equipment
Property, plant and equipment are stated at cost and are depreciated over the
estimated useful lives of the respective assets using the straight-line method
for financial statement purposes and using the modified accelerated cost
recovery system for income tax purposes. Depreciable lives are principally 40
years for buildings and building improvements and 10 to 14 years for machinery
and equipment. Repair and maintenance costs are expensed as incurred.
e. Restricted Cash Equivalents
Restricted cash equivalents represent amounts designated for capital additions
which were received from the placement of Industrial Project Revenue Bonds in
excess of amounts expended on the projects through January 31, 2000. The amounts
are invested in tax-exempt, cash equivalent instruments.
f. Goodwill and Intangible Assets
Intangible assets relate to the businesses acquired, proprietary trademarks and
patents, and covenants not to compete. The intangible assets are being amortized
over an average useful life of three to 15 years using the straight-line method.
Goodwill is being amortized over 40 years.
g. Warranty Accruals
Warranty accruals are made at the time of sale based on historical experience
and current product mix. Product warranties generally provide one year coverage
on parts and 90 days on labor, with certain exceptions.
h. Income Taxes
The asset and liability method is used in accounting for income taxes. Under
this method deferred tax assets and liabilities are recognized for the future
tax consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss and tax credit carryforwards.
i. Foreign Currency Translation
The accounts of Bloomfield Industries Canada Limited and Gamko are translated
into U.S. dollars. Assets and liabilities are translated at the year-end
exchange rate. The adjustment resulting from translation is reflected as an
adjustment to equity in the accompanying consolidated financial statements.
Gains and losses from foreign currency transactions are included in results of
operations currently. Revenue and expenses are translated using a weighted
average exchange rate for the year.
40
<PAGE> 41
j. Statements of Cash Flows
Cash paid for interest and income taxes is as follows:
(in thousands)
Years Ended January 31,
1998 1999 2000
--------------------------------------
Interest, net $ 15,972 $ 15,703 $ 8,698
Income taxes 7,112 13,967 11,863
k. Pensions and Postretirement Benefits
The Company offers pension plans which cover substantially all employees and a
postretirement medical benefit plan to retirees at one of its divisions. The
Company has recognized the liabilities for these plans pursuant to an actuarial
valuation of the benefits and costs of these programs using costs, asset return
and inflation factors deemed appropriate and reasonable. The discount rate used
to determine the liabilities recognized was 6.75% in fiscal 1998 and fiscal 1999
and 7.75% in fiscal 2000. The benefits for the postretirement medical benefit
plan are paid on a current basis and are not prefunded.
l. Fair Value of Financial Instruments
The carrying amounts of cash and cash equivalents, accounts receivable, accounts
payable and accrued liabilities approximate fair value because of the short
maturity of these financial instruments. The BA Bank Facility (see note 9) is at
variable interest rates tied to market rates and accordingly, the Company
considers the fair value to be the same as its carrying value.
m. Earnings Per Common Share
Basic earnings per share are based upon the weighted-average number of common
shares outstanding. Diluted earnings per share assumes the exercise of all
options and warrants which are dilutive, whether exercisable or not. The
dilutive effect of the options and warrants were $0.21, $0.20 and $0.14 in
fiscal 1998, 1999 and 2000, respectively.
FY 1998 FY 1999 FY 2000
Basic shares outstanding 18,143 18,280 18,761
Common stock equivalents 2,062 1,922 1,198
------------------------------------------
Diluted shares outstanding 20,205 20,202 19,959
==========================================
n. Stock Option Plans
Prior to February 1, 1996, the Company accounted for its stock option plan in
accordance with the provisions of Accounting Principles Board ("APB") Opinion
No. 25, Accounting for Stock Issued to Employees, and related interpretations.
As such, compensation expense would be recorded on the date of grant only if the
current market price of the underlying stock exceeded the exercise price.
On February 1, 1996 the Company adopted SFAS No. 123, Accounting for Stock Based
Compensation, which permits entities to recognize as expense over the vesting
period the fair value of stock-based awards on the date of grant. Alternatively,
SFAS No. 123 also allows entities to continue to apply the provisions of APB No.
25 and provide pro forma net income and pro forma earnings per share disclosures
for employee stock
41
<PAGE> 42
option grants made in 1995 and future years as if the fair value-based method
defined in SFAS No. 123 had been applied. The Company has elected to continue to
apply the provisions of APB Opinion No. 25.
o. Research and Development Expenses
Research and development costs are charged to expense when incurred. Total
research and development costs charged to expense were $6.9 million, $7.3
million and $9.1 million in fiscal 1998, 1999 and 2000, respectively.
p. Revenue Recognition
The Company recognizes revenue from product sales upon shipment to the customer.
q. Advertising Costs
Advertising costs are charged to expense when incurred. Total advertising costs
charged to expense were $8.4 million, $7.9 million and $5.9 million in fiscal
1998, 1999 and 2000, respectively.
4. ACCOUNTS RECEIVABLE
Accounts receivable consist of the following: (in thousands)
January 31,
1999 2000
--------------------------
Accounts receivable $ 80,188 $75,943
Less: allowance for doubtful accounts 3,905 4,442
--------------------------
Total $ 76,283 $71,501
==========================
Substantially all of the Company's receivables represent sales made directly, or
indirectly through distributors, to the foodservice and beverage industry.
5. INVENTORIES
Inventories consist of the following: (in thousands)
January 31,
1999 2000
--------------------------
Raw material $ 31,361 $32,393
Work in process 8,764 8,261
Finished goods 25,410 23,666
--------------------------
Subtotal 65,535 64,320
Less: excess of FIFO cost over LIFO - 187
--------------------------
Total $ 65,535 $64,133
==========================
42
<PAGE> 43
6. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following: (in thousands)
January 31,
1999 2000
------------------
Land $ 897 $ 1,307
Buildings and building improvements 25,296 28,542
Machinery and equipment 44,640 52,571
Construction in progress 3,141 7,535
------------------
Total 73,974 89,955
Less:
accumulated depreciation and amortization 33,020 38,549
------------------
Net property, plant and equipment $40,954 $51,406
==================
7. GOODWILL AND OTHER INTANGIBLES
January 31,
1999 2000
------------------
Goodwill consists of the following: (in thousands)
Goodwill $15,843 $30,746
Less: accumulated amortization 562 1,081
------------------
$15,281 $29,665
==================
Other intangibles consist of the following:
Patents $ 991 $ 1,516
Other intangibles 53,166 52,482
Deferred pension costs 1,915 2,801
------------------
Total 56,072 56,799
Less: accumulated amortization 49,674 41,442
------------------
Other intangibles, net $ 6,398 $15,357
==================
8. ACCRUED LIABILITIES
Accrued liabilities consist of the following: (in thousands)
January 31,
1999 2000
------------------
Accrued insurance $13,731 $12,318
Accrued payroll and other compensation 17,861 19,922
Accrued warranty 8,506 8,457
Accrued discontinued product lines 4,476 3,862
Accrued retiree medical expense 8,168 9,375
Accrued interest 1,248 514
Other 16,230 15,473
------------------
Total $70,220 $69,921
==================
43
<PAGE> 44
9. LONG-TERM DEBT
Long-term debt consists of the following: (in thousands)
January 31,
1999 2000
-------------------
Revolving line of credit (a) $120,000 $113,000
IRB's due 2009 and 2014(b) 4,365 9,565
Other long-term debt (c) 4,150 4,770
-------- --------
128,515 127,335
Less: current installments - 961
-------------------
Total long-term debt $128,515 $126,374
===================
(a) BA Bank Facility
The BA Bank Facility, as amended, provides for an unsecured $200 million
revolving line of credit. As of January 31, 2000, the Company had $113 million
of borrowings outstanding on its revolving line of credit and $12.2 million of
letters of credit. The BA Bank Facility expires on November 30, 2003. Interest
rates under the BA Bank Facility equal LIBOR, (5.82% at January 31, 2000) plus
0.875% for the revolving line of credit.
The Company has an interest rate swap agreement to hedge risk associated with
variable interest rate debt. The differential to be paid or received is accrued
as interest rates change and is recognized in interest expense over the life of
the agreement. Counterparties to the interest rate swap contract are major
financial institutions. Credit loss from counterparty non-performance is not
anticipated. The notional amount in the swap agreement totaled $45 million.
Because the instrument was entered into at the end of the period, the carrying
amount equals the fair value.
(b) Industrial Project Revenue Bonds
In February 1995 the Company issued $4.4 million of variable interest rate
Industrial Project Revenue Bonds ("2009 IRBs"). Interest is payable monthly and
the principal is due in 2009. The 2009 IRBs are secured by an irrevocable letter
of credit for $4.4 million. In 1999 the Company issued $5.2 million of variable
interest rate IRB's ("2014 IRB's). Interest is payable monthly and the principal
is due in 2014.
(c) Other Long-term Debt
Other long-term debt consists principally of a $4.8 million secured loan
incurred in connection with the purchase of the Gamko facility. As of January
31, 2000 the interest rate was 5.60%.
(d) Senior Subordinated Notes
During fiscal 1999, the Company acquired $31 million of its outstanding 11-3/8%
senior subordinated notes (the "Notes") in private market transactions. On
December 1, 1998 the Company called the remaining $118 million the Notes at a
price of 105.7. The Company recorded an extraordinary item of $6.4 million (net
of taxes of $4.0 million) related to the early extinguishment of the debt.
44
<PAGE> 45
(e) Leased property and leasehold interests
Leased property and leasehold interests under capital leases are included in
property, plant and equipment (none at January 31, 2000). Future minimum
payments under noncancelable operating leases as of January 31, 2000 are as
follows: (in thousands)
Fiscal Year Ending Operating
January 31, Leases
2001 $ 2,787
2002 1,880
2003 1,320
2004 392
2005 235
Thereafter -
-------
Total payments $ 6,614
=======
Rent expense under operating leases amounted to $3.0 million, $3.1 million and
$3.5 million for the fiscal years ended January 31, 1998, 1999 and 2000,
respectively.
10. INCOME TAXES
The components of income tax expense consist of the following: (in thousands)
Current Deferred Total
-----------------------------------
Year ended January 31, 1998
Federal $ 12,374 $ (4,315) $ 8,059
State 1,684 (785) 899
Foreign 599 - 599
-----------------------------------
Total $ 14,657 $ (5,100) $ 9,557
===================================
Year ended January 31, 1999
Federal $ 17,579 $ (4,435) $ 13,144
State 2,458 (665) 1,793
Foreign 1,071 - 1,071
-----------------------------------
Total $ 21,108 $ (5,100) $ 16,008
===================================
Year ended January 31, 2000
Federal $ 20,180 $ (3,940) $ 16,240
State 2,782 (600) 2,182
Foreign 1,155 - 1,155
-----------------------------------
Total $ 24,117 $ (4,540) $ 19,577
===================================
45
<PAGE> 46
Income tax expense differed from the amounts computed by applying the U.S.
Federal income tax rate of 35 percent to pretax income as a result of the
following: (in thousands)
Years Ended January 31,
1998 1999 2000
Tax expense computed at the
Federal statutory rate $ 16,513 $ 20,991 $22,401
Increase (reduction) in income
taxes resulting from:
Change in valuation of
temporary differences (5,933) (5,388) (4,540)
State income taxes,
net of Federal income tax benefit 1,471 1,409 1,708
Foreign sales corporation (1,394) (1,202) (1,158)
Other, net (1,100) 198 1,166
--------------------------------------
Provision for income taxes $ 9,557 $ 16,008 $19,577
======================================
The benefits in fiscal 1997 of the utilization of $2.8 million (tax effected
$1.1 million) of net operating loss carryforwards ("NOLs") that existed prior to
the Plan of Reorganization ("POR") pursuant to the Company's 1992
Reorganization, reduced other intangibles existing at the date of reorganization
until exhausted and, thereafter, beginning in fiscal 1997 were recorded as a
direct addition to additional paid-in capital.
January 31,
1999 2000
---------------------
Deferred taxes: (in thousands)
Allowance for doubtful accounts 400 $965
Intangibles, due to differences in amortization 13,135 13,205
Accrued liabilities, principally due to accruals for
compensated absences, self-insurance liability
reserves, warranties, pensions, discontinued
product lines and postretirement
benefits other than pensions 15,825 15,950
Net operating loss carryforwards 4,080 2,988
---------------------
Total gross deferred tax assets 33,440 33,108
Less valuation allowance (8,620) -
---------------------
Net deferred tax assets 24,820 33,108
---------------------
Deferred tax liabilities:
Inventories, principally due to additional costs
inventoried for tax purposes pursuant to the IRC
and tax basis difference resulting from the 1992
Reorganization (2,600) (2,815)
PP & E, principally due to differences in depreciation (1,810) (2,355)
---------------------
Total deferred tax liabilities (4,410) (5,170)
---------------------
Net deferred taxes $ 20,410 $27,938
=====================
46
<PAGE> 47
The net change in the valuation allowance for fiscal 1998, 1999 and 2000 was a
decrease of $7.0 million, $6.5 million, and $8.6 million, respectively. The $8.6
million change in fiscal 2000 reduced the valuation allowance to zero. The
Company believes that it is likely that sufficient future levels of taxable
income will be generated in order to realize the net deferred tax assets and
that the valuation allowance is no longer necessary. The Company has
approximately $7.8 million in NOLs. However, there are a number of issues that
may arise which, if determined adversely, could limit the amount and/or use of
available NOLs. These issues include the availability of certain deductions
previously claimed by the Company and the applicability of certain provisions of
the Internal Revenue Code of 1986, as amended, (the "IRC") generally limiting
the availability of NOLs following certain changes in ownership. The NOLs are
available through fiscal 2008. Earnings before income taxes include foreign
income of $1.4 million, $2.5 million and $3.1 million in the years ended January
31, 1998, 1999 and 2000, respectively.
11. PENSION AND BENEFIT PLANS
The Company has non-contributory defined benefit plans in place covering
substantially all employees. Annual contributions to the plans are equal to the
minimum amount required to meet funding standards of the IRC. These
contributions are deductible for Federal income tax purposes. Benefits for these
plans are based primarily on years of service or qualifying compensation, or
both, of the participants. The plans' assets are invested in various pooled
arrangements consisting of equities, fixed income, real estate, venture capital
and short-term obligations.
The following sets forth the plans' funded status and amounts recognized in the
Company's consolidated financial statements as of January 31: (in thousands)
47
<PAGE> 48
<TABLE>
<CAPTION>
Benefits Pension Benefits Other
FY 1999 FY 2000 FY 1999 FY2000
------------------------------------------------------
<S> <C> <C> <C> <C>
CHANGE IN BENEFIT OBLIGATION:
Benefit obligation at beginning of year $ 45,457 $ 53,028 $ 12,773 $ 13,742
Service cost 2,183 2,412 556 584
Interest cost 2,936 3,493 850 927
Plan participants' contributions - - - -
Amendments 193 745 - (977)
Actuarial gain (loss) (1,081) (7,377) 5 (1,786)
Benefits paid (1,387) (2,163) (442) (646)
Expenses paid (387) (267) - -
-------------------------------------------------------
Benefit obligation at end of year $ 47,914 $ 49,871 $ 13,742 $ 11,844
=======================================================
CHANGE IN PLAN ASSETS:
Fair value of plan assets at beginning of year $ 32,764 $ 40,088 $ 425 $ 425
Actual return on plan assets 2,565 816 23 20
Employer contribution 1,192 661 419 646
Plan participants' contributions - - - -
Benefits paid (1,387) (2,163) (442) (666)
Expenses paid (387) (267) - -
-------------------------------------------------------
Fair value of plan assets at end of year $ 34,747 $ 39,135 $ 425 $ 425
=======================================================
NET AMOUNT RECOGNIZED:
Funded status $(13,167) $(10,736) $ (13,317) $(11,419)
Unrecognized prior service cost 1,885 2,791 1,975 753
Unrecognized transition asset (403) (319) - -
Unrecognized net actuarial loss (gain) 5,136 157 (721) (2,538)
-------------------------------------------------------
Net amount recognized $ (6,549) $ (8,107) $ (12,063) $(13,204)
=======================================================
AMOUNTS RECOGNIZED IN THE
STATEMENTS OF FINANCIAL POSITION CONSIST OF:
Prepaid benefit cost $ - $ 134 $ - $ -
Accrued benefit liability (10,709) (11,792) (12,063) (13,204)
Intangible asset 1,915 2,801 - -
Accumulated other comprehensive income 2,245 750 - -
-------------------------------------------------------
Net amount recognized $ (6,549) $ (8,107) $ (12,063) $(13,204)
======================================================
ACTUARIAL ASSUMPTIONS:
Discount rate 6.75% 7.75% 6.75% 7.75%
Expected return on plan assets 10.00% 10.00% NA N/A
</TABLE>
48
<PAGE> 49
Year Ended January 31,
1998 1999 2000
----------------------------------
COMPONENTS OF NET PERIODIC PENSION COST:
Service cost $ 1,879 $ 2,183 $ 2,412
Interest cost 2,751 2,935 3,493
Expected return on plan assets (2,766) (3,161) (3,886)
Amortization of prior service cost 203 220 245
Amortization of transition asset (135) (134) (159)
Recognized net actuarial loss 72 120 92
----------------------------------
Net periodic benefit cost $ 2,004 $ 2,163 $ 2,197
==================================
Year Ended January 31,
1998 1999 2000
----------------------------------
COMPONENTS OF NET PERIODIC OTHER BENEFITS COST:
Service cost $ 463 $ 556 $ 584
Interest cost 879 850 927
Expected return on plan assets - - -
Amortization of prior service cost 246 246 246
Amortization of transition asset - - -
Recognized net actuarial gain (51) (68) (74)
----------------------------------
Net periodic benefit cost $ 1,537 $ 1,584 $ 1,683
==================================
As of January 31, 2000, the projected benefit obligation, accumulated benefit
obligation ("ABO"), and fair value of plan assets for the pension plans with ABO
in excess of plan assets were $45.3 million, $40.0 million and $34.1 million.
For plans in which benefits are based on qualifying compensation, the assumed
rate of increase is 3.5% for fiscal 1998, 1999 and 2000.
The Company has two nonpension postretirement benefit plans. The medical plan is
contributory with participants' contributions adjusted annually; the life
insurance plan is noncontributory. Assumed health care cost trend rates have a
significant effect on the amounts reported for the medical plan. For measurement
purposes, a 7.0% annual rate of increase in the per capita cost of covered
medical benefits was assumed for fiscal 2000. The rate was assumed to decrease
by 0.5% per year to an ultimate rate of 5.0%. A one-percentage point change in
assumed medical cost trend rates would increase (decrease) the total of service
and interest cost by $293,000 and ($231,000), and increase (decrease) the
postretirement benefit obligation by $1.8 million and ($1.5) million.
In addition to the Company plans, the Company contributed $27,000, $26,000 and
$25,000 to a multi-employer union pension plan for fiscal years 1998, 1999 and
2000, respectively.
12. COMMITMENTS AND CONTINGENT LIABILITIES
The Company is involved in litigation and claims incidental to its business. The
ultimate outcome of these matters cannot presently be determined because of the
uncertainties inherent in litigation. However, such claims are being vigorously
contested and management does not believe that it is probable that the ultimate
outcome of the loss contingencies relating to such litigation and claims will
have, individually or in the aggregate, a material adverse impact upon the
financial condition or results of operations of the Company.
49
<PAGE> 50
Environmental and Related Matters
On May 5, 1994, Specialty (doing business as Taylor Freezer Company) was among
more than 80 parties notified as potential third-party defendants in an action
involving the clean up of the MIG/Dewane Landfill near Belvidere, Illinois. A
third-party complaint has been filed by the principal owners and operators of
the landfill. Those owners and operators were sued by the principal users of the
landfill who in turn had been sued by the Environmental Protection Agency
("EPA") in April 1992. The complaint seeks contribution for the proposed clean
up of the site. The Company has not received settlement offers from the EPA, but
it settled its alleged liability with the private plaintiffs for $54,000 of the
costs associated with the remedial investigation of the site. In addition, the
Company has incurred a minimal expense associated with the administration of
this matter. Specialty has not settled its alleged liability for clean up costs
at the site. Beatrice Company (ConAgra) has assumed defense of the matter and
has agreed to defend and indemnify Specialty for claims related to the
MIG/Dewane site to the extent they are related to Taylor and the events giving
rise to the claims occurred during the Beatrice Company (ConAgra) period of
ownership. Based upon presently available information, management does not
believe this matter will have a material effect on Specialty's results of
operations or financial condition.
Letters of Credit
As of January 31, 2000, the Company had letters of credit outstanding totaling
$12.2 million, which guarantee various business activities, including $9.8
million of letters of credit which guarantee the Industrial Project Revenue
Bonds.
13. TREASURY STOCK
In September 1997, the Company announced its intention to acquire up to $10
million of its common stock on open market and in private transactions. In April
1999, the Company announced its intention to acquire up to one million shares of
its common stock. As of January 31, 2000, the Company has acquired a total of
1,567,364 shares. During fiscal 2000 the Company has reissued 1,374,458 treasury
shares for common stock option and warrant exercises. As of January 31, 2000 the
balance of treasury shares held by the Company was 192,906 shares.
50
<PAGE> 51
14. STOCK OPTION PLAN AND STOCK WARRANT
On May 6, 1993, the stockholders approved long-term incentive plans for both
non-employee directors and employees. Pursuant to the Non-Employee Directors
Long-term Incentive Plan (the "Director Plan") each non-employee director was
granted an option to purchase 175,241 shares of common stock at a price of $1.00
per share (which was not less than management's determination of the fair market
value of the underlying shares on the dates of grant). The aggregate shares
under the Director Plan totaled 876,205 shares. The options under the Director
Plan all vested and became exercisable on May 6, 1995. All options awarded
pursuant to the Director Plan expire on May 6, 2000.
The Executive Long-term Incentive Plan, as amended, (the "Employee Plan") allows
for the issue of a total of 5,004,814 shares of the Company's common stock. All
of the options granted are at an exercise price which is not less than
management's determination of the fair market value of the underlying shares at
the respective dates of grant.
The following sets forth information with respect to options issued and
outstanding:
<TABLE>
<CAPTION>
Avg. option Range of
Shares Price Option Prices
---------------------------------------
<S> <C> <C> <C>
Options outstdg. at Jan. 31, 1997 (2,945,537 exercisable) 2,995,537 $ 2.42 $ 1.00-12.00
Options granted 100,000 12.97 12.50-13.44
Options exercised (503,282) 8.00 1.00-10.25
Options withheld (125,618) 1.22 1.00-10.25
---------------------------------------
Options outstdg. at Jan. 31, 1998 (2,366,637 exercisable) 2,466,637 2.87 1.00-13.44
Options granted 130,000 22.98 22.50-23.25
Options exercised (523,441) 1.08 1.00-5.25
Options withheld (112,264) 1.21 1.00-5.25
---------------------------------------
Options outstdg. at Jan. 31, 1999 (1,730,932 exercisable) 1,960,932 4.47 $1.00-23.25
Options granted 449,000 21.38 21.38
Options exercised (569,854) 2.82 1.00-10.25
Options withheld (236,546) 1.14 1.00-10.25
----------------------------------------
Options outstdg. at Jan. 31, 2000 (1,024,532 exercisable) 1,603,532 $ 12.33 $1.00-23.25
=======================================
</TABLE>
The options exercisable at January 31, 2000 have an average exercise price of
$7.01 per share and a range of exercise prices of $1.00 to $23.25 per share. The
weighted average remaining contractual life of the options currently outstanding
is 1.5 years.
A non-employee director exercised a stock warrant to purchase 1,143,996 shares
of common stock at approximately $2.00 per share on July 29, 1999. The warrant
was issued in connection with the POR and was subsequently acquired by a
non-employee director, prior to his election as a director.
At January 31, 2000, there were 559,750 additional shares available for grant
under the Employee Plan. The per share weighted average fair value of stock
options granted during fiscal 1998, 1999 and 2000 was $5.13, $8.84 and $11.17,
respectively on the date of grant using the Black Scholes option-pricing model.
The following are weighted-average assumptions used in determining the fair
value of stock options: expected dividend yield 0%, risk-free interest rate of
5.42%, 5.11% and 6.11%, an expected life of
51
<PAGE> 52
4.5, 4.5 and 7.5 years and a volatility rate of 35%, 34% and 36%, in fiscal
1998, 1999 and 2000, respectively. Had compensation cost for the Company's stock
option plans been determined consistent with the fair value method of SFAS No.
123, Accounting for Stock Based Compensation, the Company's fiscal 1998, 1999
and 2000 results of operations would have been as follows:
Years Ended January 31,
1998 1999 2000
---------------------------------
Reported net earnings $37,542 $37,601 $44,369
Compensation expense 118 206 828
---------------------------------
Pro forma net earnings $37,424 $37,395 $43,541
=================================
Basic earnings per share:
Reported net earnings per share $2.07 $2.06 $2.36
Compensation expense per share .01 .01 .04
---------------------------------
Pro forma net earnings per share $2.06 $2.05 $2.32
=================================
Diluted earnings per share:
Reported net earnings per share $1.86 $1.86 $2.22
Compensation expense per share .01 .01 .04
---------------------------------
Pro forma net earnings per share $1.85 $1.85 $2.18
=================================
15. BUSINESS SEGMENT & MAJOR CUSTOMERS
The Company is a manufacturer of a diversified line of highly engineered,
commercial and institutional foodservice equipment used by customers in the
foodservice equipment market segment. In June 1997, the FASB issued SFAS No.
131, "Disclosures about Segments of an Enterprise and Related Information,"
which the Company adopted in fiscal 1999. Management reviews results of
operations based on products in the foodservice equipment market segment.
Revenues, long-lived assets by geographic region and sales to major customers
for fiscal 1998, 1999 and 2000 were as follows: (in thousands)
January 31,
1998 1999 2000
----------------------------------
Revenues:
United States $294,008 $354,552 $370,104
International 139,113 141,095 132,015
----------------------------------
Total $433,121 $495,647 $502,119
==================================
Long-lived Assets:
United States $ 45,121 $ 43,041 $ 76,007
International 20,856 19,958 21,867
----------------------------------
Total $ 65,977 $ 62,999 $ 97,874
==================================
Sales to major customers (greater than 10% of
total revenue):
McDonald's (b) $ 66,228 $ 69,417 $ 74,688
Coca-Cola Enterprises (CCE) (a) 55,000 (a)
----------------------------------
Total $ 66,228 $124,417 $ 74,688
==================================
(a) Less than 10% of total revenue.
(b) Sales to McDonald's are made indirectly, primarily through various
equipment suppliers. The Company estimates that, as of January 31, 2000,
approximately 11% of its accounts receivable are attributable to
McDonald's.
52
<PAGE> 53
16. QUARTERLY RESULTS (UNAUDITED)
The quarterly data has not been audited by the independent auditors (in
thousands, except share amounts).
Fiscal 1999
First Second Third Fourth
Quarter Quarter Quarter Quarter
-----------------------------------------
Net revenue $127,665 $140,146 $120,512 $107,324
Gross margin 39,486 45,135 37,261 34,876
Net earnings 9,478 11,702 7,243 9,178
Basic earnings per share $ 0.52 $ 0.64 $ 0.40 $ 0.50
Diluted earnings per share $ 0.47 $ 0.58 $ 0.36 $ 0.46
Average shares outstanding - basic 18,161 18,299 18,255 18,402
Average shares outstanding - diluted 20,053 20,037 20,027 20,137
Fiscal 2000
First Second Third Fourth
Quarter Quarter Quarter Quarter
-----------------------------------------
Net revenue $139,540 $129,158 $117,054 $116,367
Gross margin 43,703 40,851 35,991 37,424
Net earnings 11,834 10,700 8,070 13,765
Basic earnings per share $ 0.64 $ 0.59 $ 0.42 $ 0.72
Diluted earnings per share $ 0.59 $ 0.54 $ 0.41 $ 0.70
Average shares outstanding - basic 18,392 18,225 19,237 19,180
Average shares outstanding - diluted 20,185 20,000 19,797 19,660
53
<PAGE> 54
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH INDEPENDENT ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
The Company has no items to report under Item 9 of this report.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this Item 10 as to Specialty's Directors is
incorporated herein by reference to the information set forth under the caption
"Election of Directors" in the Company's definitive Proxy Statement for the 2000
Annual Meeting of Stockholders, to be filed with the Securities and Exchange
Commission not later than 120 days after the end of the Specialty's fiscal year
pursuant to Regulation 14A. Information required by this Item 10 as to the
executive officers of the Company is included in Part I of this Annual Report on
Form 10-K.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item 11 is incorporated by reference to the
information set forth under the caption "Executive Compensation" in the
Specialty's definitive Proxy Statement for the 2000 Annual Meeting of
Stockholders, to be filed with the Securities and Exchange Commission not later
than 120 days after the end of the Specialty's fiscal year pursuant to
Regulation 14A.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information required by this Item 12 is incorporated by reference to the
information set forth under the caption "Voting Securities and Principal
Stockholders" in the Specialty's definitive Proxy Statement for the 2000 Annual
Meeting of Stockholders, to be filed with the Securities and Exchange Commission
not later than 120 days after the end of the Specialty's fiscal year pursuant to
Regulation 14A.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information required by this Item 13 is incorporated by reference to the
information set forth under the caption "Certain Transactions" in the
Specialty's definitive Proxy Statement for the 2000 Annual Meeting of
Stockholders, to be filed with the Securities and Exchange Commission not later
than 120 days after the end of the Specialty's fiscal year pursuant to
Regulation 14A.
54
<PAGE> 55
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) Financial Statements
The following Financial Statements of the Registrant and its subsidiaries are
included in Part II, Item 8:
<TABLE>
<CAPTION>
Page No.
<S> <C>
Independent Auditors' Report 34
Consolidated Balance Sheets as of January 31, 1999 and 2000 35
Consolidated Statements of Operations
for the years ended January 31, 1998, 1999 and 2000 36
Consolidated Statements of Stockholders' Equity (Deficit)
and Comprehensive Income for the years ended January 31, 1998, 1999 and 2000 37
Statements of Cash Flows for the years ended January 31, 1998, 1999 and 2000 38
Notes to Consolidated Financial Statements 39
(a)(2)
Financial Statement Schedules
The following Financial Statement Schedules of the Registrant are included in Item 14 thereof:
Independent Auditors' Report 34
Schedule II - Valuation and Qualifying Accounts 57
</TABLE>
All other schedules for which provision is made in the applicable accounting
rules and regulations of the Securities and Exchange Commission are not required
under the related instructions or are inapplicable, and therefore have been
omitted.
(a)(3) Exhibits which are required to be filed by Item 601 of Regulation S-K are
set forth in the Exhibit Index filed with the Report on Form 10-K. Copies of the
Exhibit Index will be furnished without charge to stockholders of the Company
upon written request to the Corporate Secretary. Copies of any Exhibit listed
therein will be furnished to stockholders upon written request and payment of
the Company's expenses associated with furnishing such exhibits.
(b) No reports on Form 8-K were filed during the quarter ended January 31, 2000.
55
<PAGE> 56
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 on the 24th day of April,
2000.
SPECIALTY EQUIPMENT COMPANIES, INC.
By: /s/ JEFFREY P. RHODENBAUGH
Jeffrey P. Rhodenbaugh
Chief Executive 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 indicated on April 24, 2000:
Signature Title
DANIEL B. GREENWOOD* Chairman of the Board and Director
Daniel B. Greenwood
/s/ JEFFREY P. RHODENBAUGH President, Chief Executive and Chief
Jeffrey P. Rhodenbaugh Operating Officer and Director (Principal
Executive Officer)
/s/ DONALD K. MC KAY Executive Vice President, Chief Financial
Donald K. McKay Officer, Treasurer and Secretary
(Principal Accounting and Financial Officer)
WILLIAM E. DOTTERWEICH* Director
William E. Dotterweich
AVRAM A. GLAZER* Director
Avram A. Glazer
KEVIN E. GLAZER* Director
Kevin E. Glazer
MALCOLM I. GLAZER* Director
Malcolm I. Glazer
CHARLES E. HUTCHINSON* Director
Charles E. Hutchinson
RICHARD A. KENT* Director
Richard A. Kent
BARRY L. MACLEAN* Director
Barry L. MacLean
*By /s/ DONALD K. MC KAY
Donald K. McKay
Attorney-in-Fact
56
<PAGE> 57
SPECIALTY EQUIPMENT COMPANIES, INC.
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED JANUARY 31, 1998, 1999 AND 2000
(IN THOUSANDS)
<TABLE>
<CAPTION>
Balance at Charge to
Beginning Costs and Balance at
of Year Expenses Deductions End of Year
-------------------------------------------------
<S> <C> <C> <C> <C>
Year ended January 31, 1998
Allowance for doubtful accounts $ 4,659 $ 248 $ 952 $ 3,955
Inventory valuation allowances $ 2,586 $ 130 $ 200 $ 2,516
Valuation allowance for deferred tax assets $22,125 $ - $7,025 $15,100
Accrued warranty $ 7,052 $ - $ 388 $ 6,664
Year ended January 31, 1999
Allowance for doubtful accounts $ 3,955 $ 289 $ 339 $ 3,905
Inventory valuation allowances $ 2,516 $ 238 $ 341 $ 2,413
Valuation allowance for deferred tax assets $15,100 $ - $6,480 $ 8,620
Accrued warranty $ 6,664 $1,842 $ - $ 8,506
Year ended January 31, 2000
Allowance for doubtful accounts $ 3,905 $ 672 $ 135 $ 4,442
Inventory valuation allowance $ 2,413 $ 771 $ 136 $ 3,048
Valuation allowance for deferred tax assets $ 8,620 $ - $8,620 $ -
Accrued warranty $ 8,506 $ - $ 49 $ 8,457
</TABLE>
57
<PAGE> 58
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2.1+ Plan of Reorganization, dated February 5, 1992.
2.2+ Order of the United States Bankruptcy Court for the Northern
District of Illinois, Western Division, entered March 17, 1992,
confirming the Company's Plan of Reorganization.
3.1@ Amended and Restated Certificate of Incorporation of the Company.
3.2@ Amended and Restated By-laws of the Company.
3.3< Second Amended and Restated Credit Agreement, dated as of
November 24, 1998, among Specialty Equipment Companies, Inc. and
Specialty Equipment Manufacturing Corporation, as Borrowers, and
Bank of America National Trust and Savings Association, as agent.
10.1+ Specialty Equipment Companies, Inc. Executive Long-Term Incentive
Plan.
10.2* First Amendment to Executive Long-term Incentive Plan, effective
June 6, 1994
10.3o Second Amendment to Specialty Equipment Companies, Inc. Executive
Long-Term Incentive Plan, effective June 6, 1994.
10.4+ Specialty Equipment Companies, Inc. Non-Employees Director
Long-Term Incentive Plan.
10.5+ Specialty Equipment Companies, Inc. Restricted Stock Plan.
10.6/ Specialty Equipment Companies Retirement Income Plan amended and
restated effective January 31, 1987.
10.7ss. Specialty Equipment Companies, Inc. Supplemental Retirement Plan,
executed November 25, 1991.
10.8+ Employment Retention Agreement, dated December 19, 1991, by and
between Specialty Equipment Companies, Inc. and Daniel B.
Greenwood.
10.9++ First Amendment to Employee Retention Agreement, dated December
19, 1993, by and between Specialty Equipment Companies, Inc. and
Daniel B. Greenwood.
10.10* Second Amendment to Employee Retention Agreement, dated December
19, 1995, by and between Specialty Equipment Companies, Inc. and
Daniel B. Greenwood.
10.11+ Employment Retention Agreement, dated December 19, 1991, by and
between Specialty Equipment Companies, Inc. and Donald K. McKay.
10.12++ First Amendment to Employee Retention Agreement, dated December
19, 1993, by and between Specialty Equipment Companies, Inc. and
Donald K. McKay.
10.13* Second Amendment to Employee Retention Agreement, dated December
19, 1995, by and between Specialty Equipment Companies, Inc. and
Donald K. McKay.
58
<PAGE> 59
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10.14+ Employment Retention Agreement, dated December 19, 1991, by and
between Specialty Equipment Companies, Inc. and William W.
Robertson.
10.15++ First Amendment to Employee Retention Agreement, dated December
19, 1993, by and between Specialty Equipment Companies, Inc. and
William W. Robertson.
10.16/ Second Amendment to Employee Retention Agreement, dated
December 19, 1995, by and between Specialty Equipment Companies,
Inc. and William W. Robertson.
10.17++ Employment Retention Agreement, dated December 19, 1991, by and
between Specialty Equipment Companies, Inc. and Jeffrey P.
Rhodenbaugh.
10.18++ First Amendment to Employment Retention Agreement, dated
December 19, 1993, by and between Specialty Equipment Companies,
Inc. and Jeffrey P. Rhodenbaugh.
10.19* Second Amendment to Employment Retention Agreement, dated
December 19, 1995, by and between Specialty Equipment Companies,
Inc. and Jeffrey P. Rhodenbaugh.
10.20+ Sublease, dated July 28, 1972, by and between Beverage-Air
Company and Tannetics, Inc; Assignment of Sublease, dated March
30, 1973, by and between Buffington Company, as successor to
Beverage-Air Company, and Herman L. Buffington; Amendment to
Sublease, dated September 8, 1989, by and between the Herman L.
Buffington Irrevocable Trust and Specialty Equipment Companies,
Inc.
10.21(1) Lease, dated December 5, 1994, between Community Cash Stores of
Spartanburg, SC and Specialty Equipment Companies, Inc.,
Beverage-Air division.
10.22+ Lease, dated May 1, 1992, by and between Wells Enterprises and
Wells Manufacturing Company.
10.23(1) Lease, dated March 31, 1995, by and between Dermody Industrial
Group and Wells Manufacturing Company.
10.24+ Lease, dated June 28, 1990, by and between Orlando Corporation
and Bloomfield Industries Canada Limited.
10.25+ Lease, dated July 1, 1993, by and between New York Life Insurance
Company and Specialty Equipment Companies, Inc.
10.26/ First Amendment to Lease, dated August 15, 1995, by and between
New York Life Insurance Company and Specialty Equipment
Companies, Inc.
10.27(phi) Lease, dated December 21, 1999, by and between Centerpoint
Properties Trust and World Dryer Corporation, a division of
Specialty Equipment Manufacturing Corporation.
10.28(1) Lease, dated January 3, 1995 by and between Brouillette, Inc. and
Taylor Company.
10.29/ Lease, dated August 30, 1995, between Lakewood Realty and
Mortgage Corporation and Specialty Equipment Companies, Inc.
59
<PAGE> 60
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10.30(1) Irrevocable Letter of Credit, dated February 22, 1995, in the
amount of $6.5 million issued by Barclays Bank, PLC, in favor of
Amalgamated Bank of Chicago, and Trustee under the Trust
Indenture, dated as of February 22, 1995 between the State of
South Carolina and Amalgamated Bank of Chicago.
10.31(1) Pledge Agreement, dated as of February 1, 1995, among Specialty
Equipment Companies, Inc., Shawmut Capital Corporation as
guarantor, and Barclays Bank PLC, New York Branch, covering $6.4
million State of South Carolina Industrial Project Revenue Bonds,
Series 1995 (Specialty Equipment Companies, Inc. Project).
10.32+ First Amendment to Pledge Agreement, dated as of February 15,
1997, among Specialty Equipment Companies, Inc., Barclays Bank
PLC, on behalf of itself and as agent for Shawmut Capital Corp.,
Bank of America Illinois and Amalgamated Bank of Chicago.
10.33(9) Irrevocable Letter of Credit, dated February 22, 1995, in the
amount of $6.5 million issued by Barclays Bank, PLC, in favor of
Amalgamated Bank of Chicago, and Trustee under the Trust
Indenture, dated as of February 22, 1995 between the State of
South Carolina and Amalgamated Bank of Chicago.
10.34(9) Pledge Agreement, dated as of February 1, 1995, among Specialty
Equipment Companies, Inc., Shawmut Capital Corporation as
guarantor, and Barclays Bank PLC, New York Branch, covering $6.4
million State of South Carolina Industrial Project Revenue Bonds,
Series 1995 (Specialty Equipment Companies, Inc. Project).
10.33+ Warrant to purchase Common Stock of the Company, originally
issued March 31, 1992, reregistered December 27, 1996 to the
Malcolm I. Glazer Family Limited Partnership.
10.34+ Form of Indemnification Agreement for the directors and certain
officers of the Company.
10.35& Stock Purchase Agreement between Specialty Equipment Companies,
Inc. and Quaboes B.V. and Shareholders of Gamko Holding B.V. and
of Coolpart B.V., dated August 11, 1997.
10.36# Instrument of Transfer and Assumption Agreement dated January 31,
1998, between Specialty Equipment Companies, Inc. (the "Parent")
and Specialty Equipment Manufacturing Corporation (the "Operating
Subsidiary").
10.37# License Agreement dated January 31, 1998 by and between Specialty
Equipment Companies, Inc., ("Licensor") and Specialty Equipment
Manufacturing Corporation.
10.38# Management and Administrative Services Agreement dated January
31, 1998, between Specialty Equipment Companies, Inc., and
Specialty Equipment Manufacturing Corporation.
12.1(phi) Statement Re: Computation of Ratios of Earnings to Fixed Charges
21.1(phi) Subsidiaries of Specialty Equipment Companies, Inc.
23.1(phi) Consent of KPMG LLP.
60
<PAGE> 61
EXHIBIT NO. DESCRIPTION
- ----------- -----------
24.1(phi) Powers of Attorney of Messrs. Kent, M. Glazer and A. Glazer dated
April 13, 2000, Messrs. Hutchinson and Dotterweich dated April
14, 2000, Mr. MacLean dated April 17, 2000, and Messrs. K. Glazer
and Greenwood dated April 18, 2000.
27.1(phi) Financial data schedule.
+ Incorporated herein by reference to the applicable exhibit to the
Company's Registration Statement on Form S-1, as amended, initially
filed with the Securities and Exchange Commission on September 3, 1993
(Registration No. 33-68404).
* Incorporated herein by reference to the applicable exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended October
31, 1993, as filed with the Securities and Exchange Commission on
December 15, 1993.
++ Incorporated herein by reference to the applicable exhibit to the
Company's Annual Report on Form 10-K for the year ended January 31,
1994, as filed with the Securities and Exchange Commission on March
25, 1994.
@ Incorporated herein by reference to the applicable exhibit to the
Company's Form 8-K, as filed with the Securities and Exchange
Commission on May 12, 1994.
o Incorporated herein by reference to the applicable exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended April
30, 1994, as filed with the Securities and Exchange Commission on June
14, 1994.
(1) Incorporated herein by reference to the applicable exhibit to the
Company's Annual Report on Form 10-K for the year ended January 31,
1995, as filed with the Securities and Exchange Commission on March
28, 1995.
/ Incorporated herein by reference to the applicable exhibit to the
Company's Annual Report on Form 10-K for the year ended January 31,
1996, as filed with the Securities and Exchange Commission on March
26, 1996.
ss. Incorporated herein by reference to the applicable exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended April
30, 1996, as filed with the Securities and Exchange Commission on June
13, 1996.
= Incorporated herein by reference to the applicable exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended October
31, 1996, as filed with the Securities and Exchange Commission on
December 15, 1996.
+ Incorporated herein by reference to the applicable exhibit to the
Company's Annual Report on Form 10-K for the year ended January 31,
1997, as filed with the Securities and Exchange Commission on March
27, 1997.
& Incorporated herein by reference to the applicable exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended October
31, 1997, as filed with the Securities and Exchange Commission on
December 15, 1997.
# Incorporated herein by reference to the applicable exhibit to the
Company's Annual Report on Form 10-K for the year ended January 31,
1998, as filed with the Securities and Exchange Commission on April
13, 1998.
< Incorporated herein by reference to the applicable exhibit to the
Company's Quarter Report on Form 10-Q for the quarter ended October
31, 1998, as filed with the Securities and Exchange Commission on
December 14, 1998.
(9) Incorporated herein by reference to the applicable exhibit to the
Company's Annual Report on Form 10-K for the year ended January 31,
1999, as filed with the Securities and Exchange Commission on April 9,
1999.
(phi) Filed herewith.
61
<PAGE> 1
EXHIBIT 10.27
INDUSTRIAL BUILDING LEASE
Landlord:
CENTERPOINT PROPERTIES TRUST,
a Maryland real estate investment trust
Tenant:
WORLD DRYER CORPORATION,
a Division of Specialty Equipment Manufacturing
Corporation, a Delaware corporation
Property Address:
5700 McDermott Drive
Berkeley, Illinois
<PAGE> 2
TABLE OF CONTENTS
-----------------
ARTICLE I Lease Terms......................................... 1
Section 1.1. Definitions......................................... 1
Section 1.2. Significance of Definitions......................... 2
Section 1.3. Enumeration of Exhibits............................. 2
ARTICLE II Premises............................................ 2
Section 2.1. Lease............................................... 2
ARTICLE III Term................................................ 2
Section 3.1. Term................................................ 2
ARTICLE IV Condition of Demised Premises....................... 3
Section 4.1. Condition of Premises............................... 3
ARTICLE V Rent................................................ 3
Section 5.1. Base Rent........................................... 3
Section 5.2. Interest and Late Charges on Late Payments.......... 3
ARTICLE VI Taxes and Impositions............................... 4
Section 6.1. Taxes............................................... 4
Section 6.2. Utilities........................................... 5
Section 6.3. Expenses............................................ 5
Section 6.4. Deposits............................................ 5
Section 6.5. Adjustment Statement ............................... 5
Section 6.6. Payments ........................................... 5
Section 6.7. Payment Adjustments ................................ 6
Section 6.8. Right to Pay ....................................... 6
Section 6.9. Landlord's Contest of Taxes ........................ 6
ARTICLE VII Use ................................................ 6
Section 7.1. Use ................................................ 6
Section 7.2. Prohibited Uses .................................... 6
ARTICLE VIII Maintenance, Repair and Replacements of Premises.... 7
Section 8.1. .................................................... 7
Section 8.2. Governmental Requirements........................... 7
Section 8.3. Tenant's Responsibilities........................... 7
Section 8.4. Maintenance Contract................................ 8
ARTICLE IX
Tenant's Insurance .................................................. 8
Section 9.1. Coverage Required................................... 8
Section 9.2. Policies............................................ 10
Section 9.3. Subrogation......................................... 10
Section 9.4. Self-Insurance...................................... 10
Section 9.5. Miscellaneous Insurance Provisions.................. 11
(i)
<PAGE> 3
ARTICLE X Property Insurance.................................. 12
ARTICLE XI Damage or Destruction............................... 12
Section 11.1. Damage or Destruction by Fire or Casualty........... 12
ARTICLE XII Liens............................................... 12
Section 12.1. Lien Claims......................................... 12
Section 12.2. Landlord's Right to Cure............................ 12
ARTICLE XIII Alterations and Improvements........................ 13
Section 13.1. Alterations......................................... 13
Section 13.2. Ownership of Alterations............................ 14
Section 13.3. Signs............................................... 14
Section 13.4. Tenant Indemnity.................................... 14
Section 13.5. Environmental Impact................................ 14
ARTICLE XIV Condemnation........................................ 15
Section 14.1. Taking: Lease to Terminate.......................... 15
Section 14.2. Taking: Lease to Continue........................... 15
Section 14.3. Tenant's Claim...................................... 15
ARTICLE XV Rent Absolute ...................................... 15
Section 15.1. Rent Absolute....................................... 15
ARTICLE XVI Assignment -- Subletting by Tenant.................. 16
Section 16.1. No Assignment Subletting or Other Transfer.......... 16
Section 16.2. Operation of Law.................................... 16
Section 16.3. Excess Rental....................................... 16
Section 16.4. Merger or Consolidation............................. 16
Section 16.5. Unpermitted Transaction............................. 17
ARTICLE XVII Annual Statements................................... 17
Section 17.1. Annual Statements................................... 17
ARTICLE XVIII Indemnity for Litigation............................ 17
Section 18.1. Indemnity for Litigation............................ 17
ARTICLE XIX Estoppel Certificates............................... 17
Section 19.1. Estoppel Certificate................................ 17
ARTICLE XX Inspection of Premises.............................. 17
Section 20.1. Inspections......................................... 17
Section 20.2. Signs............................................... 18
ARTICLE XXI Fixtures............................................ 18
Section 21.1. Building Fixtures................................... 18
Section 21.2. Tenant's Equipment.................................. 18
Section 21.3. Removal of Tenant's Equipment....................... 18
ARTICLE XXII Default............................................. 18
Section 22.1. Events of Default................................... 18
(ii)
<PAGE> 4
Section 22.2. Waivers............................................. 19
Section 22.3. Bankruptcy.......................................... 20
ARTICLE XXIII Landlord's Performance of Tenant's Covenants....... 21
Section 23.1. Landlord's Right to Perform Tenant's Obligations.... 21
ARTICLE XXIV Exercise of Remedies................................ 21
Section 24.1. Cumulative Remedies................................. 21
Section 24.2. No Waiver........................................... 21
Section 24.3. Equitable Relief.................................... 22
ARTICLE XXV Subordination to Mortgages.......................... 22
Section 25.1. Subordination....................................... 22
Section 25.2. Mortgage Protection................................. 22
ARTICLE XXVI Indemnity and Waiver................................ 22
Section 26.1. Indemnity........................................... 22
Section 26.2. Waiver of Claims.................................... 23
ARTICLE XXVII Surrender........................................... 24
Section 27.1. Condition........................................... 24
Section 27.2. Removal of Tenant's Equipment....................... 24
Section 27.3. Holdover............................................ 24
ARTICLE XXVIII Covenant of Quiet Enjoyment......................... 24
Section 2 8.1. Covenant of Quiet Enjoyment......................... 24
ARTICLE XXIX No Recording........................................ 25
Section 29.1. Short Form of Lease................................. 25
ARTICLE XXX Notices............................................. 25
Section 30.1. Notices............................................. 25
ARTICLE XXXI Covenants Run with Land............................. 25
Section 31.1. Covenants........................................... 25
Section 31.2. Release of Landlord................................. 25
ARTICLE XXXII Environmental Matters............................... 26
Section 32.1. Defined Terms....................................... 26
Section 32.2. Tenant's Covenants with Respect to
Environmental Matters............................. 27
Section 32.3. Conduct of Tenant................................... 28
Section 32.4. Exacerbation........................................ 29
Section 32.5. Rights of Inspection................................ 29
Section 32.6. Copies of Notices................................... 29
Section 32.7. Tests and Reports................................... 29
Section 32.8. Indemnification..................................... 30
Section 32.9. Tenant Acknowledgments with respect to
Environmental Matters............................ 31
Section 32.10. No Liability of Landlord............................ 31
ARTICLE XXXIII Security Deposit.................................... 32
Section 33.1. Security Deposit.................................... 32
(iii)
<PAGE> 5
ARTICLE XXXIV Tenant's Work....................................... 32
Section 34. 1. Tenant's Work....................................... 32
Section 34.2. Plans............................................... 32
Section 34.3. Tenant Allowance.................................... 32
Section 34.4. Governmental Approvals.............................. 32
Section 34.5. Landlord Access to Tenant Work...................... 33
Section 34.6. Safety.............................................. 33
Section 34.7. Completion.......................................... 33
ARTICLE XXXV Miscellaneous....................................... 33
Section 35.1. Captions............................................ 33
Section 35.2. Severability........................................ 34
Section 35.3. Applicable Law...................................... 34
Section 35.4. Amendments in Writing............................... 34
Section 35.5. Relationship of Parties............................. 34
Section 35.6. Brokerage........................................... 34
Section 35.7. No Accord and Satisfaction.......................... 34
Section 35.8. Joint Effort........................................ 34
Section 35.9. Waiver of Jury Trial................................ 34
Section 35.10. Time................................................ 34
Section 35.11. Landlord's Consent.................................. 34
Section 35.12. No Partnership...................................... 35
Section 35.13. Landlord's Liability................................ 35
Section 35.14. Entire Agreement.................................... 35
Section 35.15. Rent Absolute....................................... 35
Section 35.16. Purchase Contingency................................ 35
(iv)
<PAGE> 6
Property
Address:
5700 McDermott Drive
Berkeley, Illinois
INDUSTRIAL BUILDING LEASE
-------------------------
THIS LEASE is made as of this 21st day of December, 1999 between
CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
("Landlord"), and WORLD DRYER CORPORATION, a Division of Specialty Equipment
Manufacturing Corporation, a Delaware corporation ("Tenant").
ARTICLE I
Lease Terms
-----------
SECTION 1.1. DEFINITIONS. In addition to the other terms, which are
elsewhere defined in this Lease, the following terms and phrases, whenever used
in this Lease shall have the meanings set forth in this Subsection, and only
such meanings, unless such meanings are expressly contradicted, limited or
expanded elsewhere herein.
A. BASE RENT SCHEDULE:
PERIOD ANNUAL MONTHLY
LEASE YEAR (BY LEASE MONTH) BASE RENT BASE RENT
---------- ---------------- --------- ---------
1 1-12 $226,386.00 $18,865.50
2 13-24 $230,913.72 $19,242.81
3 25-36 $235,531.99 $19,627.67
4 37-48 $240,242.63 $20,020.22
5 49-60 $245,047.48 $20,420.62
6 61-72 $249,948.43 $20,829.04
7 73-84 $254,947.40 $21,245.62
8 85-96 $260,046.35 $21,670.53
9 97-108 $265,247.28 $22,103.94
10 100-120 $270,552.23 $22,546.02
B. SECURITY DEPOSIT: $29,481.69
C. INITIAL DEPOSIT: $10,616.19
(i) Initial Tax Deposit: $10,616.19
(ii) Initial Insurance Deposit: $-0
(iii) Initial Expense Deposit: $-0
D. INITIAL TERM: The initial ten (10)-year term, commencing
as of the Commencement Date.
E. COMMENCEMENT DATE: The later of (i) the first day following
Landlord's acquisition of the Premises, or (ii) February 1, 2000. Landlord
shall provide Tenant with a five (5) day notice of Landlord's
<PAGE> 7
estimate of the Commencement Date and shall further provide notice to Tenant as
of the actual Commencement Date. By way of example only, if Landlord acquires
the Premises on December 25, 1999, the Commencement Date shall be December 26,
1999 and Landlord shall provide notice to Tenant on or before December 21, 1999
with the estimated Commencement Date and then provide notice to Tenant with the
actual Commencement Date on December 26, 1999.
F. TERMINATION DATE: The last day of the one hundred twentieth
(120th) full month following the Commencement Date.
G. TERM: The Initial Term as same may be extended or sooner
terminated.
H. USE: Light manufacturing, warehouse and related offices.
I. LANDLORD'S MAILING ADDRESS:
1808 Swift Drive
Oak Brook, Illinois 60523
Attn: Mr. Paul T. Ahern
J. TENANT'S MAILING ADDRESS:
5700 McDermott Drive
Berkeley, Illinois 60163
Attn: Mr. Don McKay
SECTION 1.2. SIGNIFICANCE OF DEFINITIONS. Each reference in this Lease to
any of the Definitions contained in Section 1.1 of this Article shall be deemed
and construed to incorporate all of the terms provided under each such
Definition.
SECTION 1.3. ENUMERATION OF EXHIBITS. The exhibits in this Section and
attached to this Lease are incorporated in this Lease by this reference and are
to be construed as a part of this Lease.
EXHIBIT "A" - Legal Description
EXHIBIT "B" - Form of Estoppel Certificate
Exhibit "C" - Tenant's Work
ARTICLE 11
PREMISES
--------
SECTION 2.1. LEASE. Landlord, for and in consideration of the rents herein
reserved and of the covenants and agreements herein contained on the part of
Tenant to be kept, observed and performed, does by these presents, lease to
Tenant, and Tenant hereby leases from Landlord, the real estate located at 5700
McDermott Drive, Berkeley, Illinois, and legally described on Exhibit "A"
attached hereto and by this reference incorporated herein ("Land"), together
with all improvements now located or hereafter constructed thereon
("Improvements") (the Land and the Improvements are sometimes collectively
referred to as the "Premises"), subject to covenants, conditions, agreements,
easements, encumbrances and restrictions affecting the Land and the Improvements
thereon ("Restrictions").
2
<PAGE> 8
ARTICLE III
TERM
----
SECTION 3.1. TERM. The Initial Term of this Lease shall commence on the
Commencement Date and shall end on the Termination Date, unless sooner
terminated as hereinafter set forth. If the Commencement Date is a day other
than the first (1st) day of a calendar month, the Initial Term shall expire 120
months after the first (1st) day of the first full calendar month after the
Commencement Date and shall, accordingly, include the period between the
Commencement Date and the end of the calendar month in which the Commencement
Date occurs, with Rent for such partial month to be calculated pro rata on a
daily basis. If the Landlord shall be unable to give possession of the Premises
on the Commencement Date for any reason the Rent reserved and covenanted to be
paid herein shall not commence until the Premises are available for occupancy by
Tenant. No such failure to give possession on the Commencement Date of the Term
hereof shall subject Landlord to any liability for failure to give possession
nor shall same affect the validity of this Lease or the obligation of the Tenant
hereunder, nor shall the same be construed to extend the Term. In the event of
the delayed delivery of possession to Tenant, the Lease shall be amended so that
the Term shall be extended by the period of time possession is delayed.
ARTICLE IV
CONDITION OF DEMISED PREMISES
-----------------------------
SECTION 4.1. CONDITION OF PREMISES. Tenant agrees to accept the Premises in
an absolutely "as-is" condition, and Tenant acknowledges that Landlord, its
agents, attorneys, representatives and employees have not and do not make any
representations or warranties, express or implied, to Tenant regarding the
Premises, including, but not limited to: (i) the zoning of the Premises; (ii)
the condition of any underground, above ground or surface improvements; (iii)
the size, area, use or type of the Premises or the fitness of the Premises for
any intended or particular use; (iv) the nature of the soil on and underlying
the Premises or its suitability for development or any other use thereof; (v)
any financial information pertaining to the operation of the Premises; (vi) the
status of any requirements or obligations imposed, implied or to be undertaken
by the owner or developer of the Premises pursuant to any zoning, subdivision,
development laws or agreements with any governmental entities; (vii) the
presence or absence of any toxic wastes, hazardous materials or structural
defects in, on or under the Premises or any improvements thereon; or (viii) the
presence or absence of any rights of any governmental authority, or of owners of
property in the vicinity of the Premises, to obtain reimbursement, recapture or
special assessments from any owner of the Premises for all or a portion of the
cost of any utilities, roads or other improvements heretofore or hereafter
located on or in the vicinity of the Premises (and if such rights exist, Tenant
agrees to pay all sums due pursuant thereto, it being expressly acknowledged and
agreed that, Tenant hereby waives any claim Tenant may have or may hereafter
acquire against Landlord, its agents, attorneys, representatives or employees
for said costs), any and all such representations and warranties, express or
implied, being hereby expressly waived by Tenant and disclaimed by Landlord.
Tenant waives any claim that may exist for patent and/or latent defects or for
mutual or unilateral mistake of fact. No promise of Landlord to alter, remodel,
decorate, clean or improve the Premises or any portion thereof and no
representation respecting the condition of the Premises or any portion thereof
have been made by Landlord to Tenant.
ARTICLE V
RENT
----
SECTION 5.1. BASE RENT. In consideration of the leasing aforesaid, Tenant
agrees to pay Landlord, without offset or deduction, base rent for the Initial
Term ("Base Rent"), payable monthly in advance in the amount of the Monthly Base
Rent set forth in the Base Rent Schedule commencing on the Commencement Date and
continuing on the first (1st) day of each month thereafter for the balance of
the Term of this Lease, and in addition thereto, shall pay such charges as are
herein described as "Additional Rent". The term "Rent" when used in this Lease
shall include all
3
<PAGE> 9
Base Rent payable under this Section 5.1. as well as the charges herein
described as Additional Rent. All Rent payable hereunder shall be payable to
Landlord at 135 S. LaSalle Street, Dept. 2023, Chicago, Illinois 60674-2023, or
as Landlord may otherwise from time to time designate in writing.
SECTION 5.2. INTEREST AND LATE CHARGES ON LATE PAYMENTS. Tenant
acknowledges that its late payment of any Rent will cause Landlord to incur
certain costs and expenses not contemplated under this Lease, the exact amount
of which is extremely difficult or impracticable to fix. Such costs and expenses
will include, without limitation, loss of use of money, administrative and
collection costs and processing and accounting expenses. Therefore, if any
installment of monthly Base Rent is not received by Landlord within ten (10)
days of the date when due or any other sum due hereunder is not paid within ten
(10) days of the date when due, Tenant shall immediately pay to Landlord a late
charge equal to three percent (3%) of the unpaid amount. Such late charge is in
addition to any interest due as set forth below. Landlord and Tenant agree that
this late charge represents a reasonable estimate of costs and expenses incurred
by Landlord from, and is fair compensation to Landlord for, its loss suffered,
by such non-payment by Tenant. In addition to the foregoing, Rent not paid
within thirty (30) days of the date when due shall bear interest from the
date when the same is payable under the terms of this Lease until the same shall
be paid at an annual rate of interest equal to the rate of interest announced
from time to time by the First National Bank of Chicago as its Corporate Base
Rate, plus three percent (3%), unless a lesser rate shall then be the maximum
rate permissible by law, in which event said lesser rate shall be charred
("Lease Interest Rate"). The term "Corporate Base Rate" means that rate of
interest announced by The First National Bank of Chicago ("First") from time to
time as its "Corporate Base Rate" of interest, changing automatically and
simultaneously with each change in the Corporate Base Rate made by First from
time to time. Any publication issued or published by First from time to time or
a certificate signed by an officer of First stating its Corporate Base Rate as
of a date shall be conclusive evidence of the Corporate Base Rate on that date.
Acceptance of the late charge shall not constitute a waiver of Tenant's default
with respect to such non-payment by Tenant or prevent Landlord from exercising
any other rights and remedies available to Landlord under this Lease. Failure to
pay the late charge shall constitute a default under this Lease.
ARTICLE VI
TAXES AND IMPOSITIONS
---------------------
SECTION 6.1. TAXES. Tenant further agrees to pay, as Additional Rent for
the Premises, all Taxes (as hereinafter defined) which accrue during the Term of
this Lease, and are levied, assessed or become a lien imposed upon the Premises
or any part thereof. Such Additional Rent shall be payable notwithstanding the
fact that the amount of such Taxes may not be ascertainable or due and payable
until after the expiration of the Term of this Lease; provided, however, that
the Taxes levied against the Premises shall be prorated between Landlord and
Tenant for the first year of the Initial Term hereof as of the Commencement
Date, and as of the date of expiration of the Term of this Lease for the last
year of said Term, all on the basis of the most recent ascertainable taxes as
applied to the most recent assessed valuation of the Premises. Tenant shall be
responsible for all increases in Taxes based upon Tenant's occupancy of the
Premises. After the expiration of the Term hereof, including any extensions
thereof, Tenant hereby agrees to reprorate Taxes. In the event of any increase
in Taxes from the Taxes reflected on the proration made upon the expiration of
the Term of this Lease, Tenant agrees to immediately pay to Landlord such sums
as reflected by such reproration Benefit may be taken by Tenant of the
provisions of any statute or ordinance permitting any special assessment to be
paid over a period of years; provided, however, that Tenant shall pay all
installments of special assessments due during the Term hereof. Tenant shall,
in addition to the foregoing, pay any new Tax of a nature not presently in
effect but which may hereafter be levied or assessed upon Landlord or upon the
Premises or imposed as a lien upon the Premises, if such Tax shall be based upon
or arise out of "he ownership, use or operation of the Premises; provided,
however, that for the purpose of computing Tenant's liability for such new type
of Tax, the Premises shall be deemed the only property of Landlord. Tenant's
obligations under this Section shall survive the expiration or termination of
this Lease. As used herein, "Taxes" means real estate taxes, assessments, sewer
rents, rates and charges, permit and license fees, transit taxes, taxes based
upon the receipt of rent, and any other federal, state or local governmental
charge, general, special, ordinary or extraordinary, which may now or hereafter
be assessed, accrue or become a lien against the Premises or any
4
<PAGE> 10
portion thereof in any year during the Term of this Lease, and also shall
include any personal property taxes (attributable to the year in which paid)
imposed upon the furniture, fixtures, machinery, equipment, apparatus, systems
and appurtenances used in connection with the operation of the Premises and any
fine, penalty, interest or cost that may be added to the foregoing as a result
of Tenant's nonpayment of Landlord's invoice therefor.
Nothing contained herein shall be construed to require Tenant to pay any
franchise, inheritance, estate, succession or transfer tax of Landlord or any
income or excess profits tax assessed upon or in respect of all income of
Landlord or chargeable to or required to be paid by Landlord unless such tax
shall be specifically levied against the rental income of Landlord derived
hereunder (as opposed to a general income tax), which tax shall be paid by
Tenant as part of Taxes hereunder provided said rental income shall be
considered as the sole income of Landlord.
SECTION 6.2. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, all costs of natural gas, electricity, heat, light, power, sewer
service, telephone, water, refuse disposal and other utilities and services
supplied to the Premises. Landlord shall, at Landlord's sole cost and expense,
separately meter the Premises. Landlord shall not in any way be liable or
responsible to Tenant for any cost or damage or expense which Tenant may sustain
or incur if either the quality or character of such service is changed or is no
longer available or suitable for Tenant's requirements.
SECTION 6.3. EXPENSES. Tenant further agrees to pay as Additional Rent for
the Premises, all of the following, charges incurred by Landlord during the Term
of this Lease (collectively, the "Expenses"): (i) costs of sprinkler inspections
conducted by Landlord from time to time in the Premises as required by all
governmental authorities having jurisdiction over the Premises; provided,
however, that Tenant may provide Landlord with copies of annual sprinkler
inspection reports for inspections conducted at Tenant's expense, by Factory
Mutual Engineering or another engineering company, reasonably acceptable to
Landlord that are required as part of Tenant's insurance program for the
Premises. If Tenant fails to provide said reports to Landlord as provided
herein, Landlord may cause said inspections to be performed and the cost thereof
shall be paid by Tenant to Landlord within ten (10) days after Landlord submits
its invoice to Tenant for same; (ii) costs of inspections conducted by Landlord
from time to time to verify Tenant's compliance with Article XXXII of this
Lease; and (iii) costs of roof inspections conducted by Landlord from time to
time, no more than tri-annually.
SECTION 6.4. DEPOSITS. As security for the obligations contained in
Sections 6.1., 6.3. and 10.3. hereof, Tenant shall deposit monthly with
Landlord, or such other entity as Landlord may designate, on the first (1st) day
of each and every month of the Term, a sum equal to one twelfth (1/12) of
Landlord's estimate of the current amount of Taxes levied with respect to the
Premises, Insurance Premiums (as hereinafter defined) and Expenses. All monthly
deposits need not be kept separate and apart by Landlord and shall be held by
Landlord in such account or accounts as may be authorized by the then current
state or federal banking laws, rules or regulations. The monthly deposits shall
be used as a fund to be applied, to the extent thereof, to the payment of Taxes,
Expenses and Insurance Premiums, as the same become due and payable. The
existence of said fund shall not limit or alter Tenant's obligation to pay the
Taxes, Expenses and Insurance Premiums for which the fund was created. Tenant
shall be entitled to interest on said fund at the rate of three percent (3%) per
annum. Tenant shall pay Landlord as its monthly deposit for the period
commencing on the Commencement Date and terminating on the December 31st
immediately thereafter the Initial Deposit. On or prior to each December 31st
occurring within the Term, Landlord shall advise Tenant as to Landlord's
estimate of the monthly deposits that will be required for the next Lease Year
(as hereinafter defined).
SECTION 6.5. ADJUSTMENT STATEMENT. As soon as reasonably feasible after the
expiration of each calendar year contained within the Term ("Lease Year"),
Landlord will furnish Tenant a statement ("Adjustment Statement") showing the
following:
(i) Actual Taxes, Insurance Premiums and Expenses for the
Lease Year last ended and the amount of Taxes, Insurance Premiums and
Expenses payable by Tenant for such Lease Year;
5
<PAGE> 11
(ii) The amount of Additional Rent due Landlord for the
Lease Year last ended, less credits for monthly deposits paid, if any; and
(iii) Accrued interest on said monthly deposit amounts paid,
if any; and
(iv) The monthly deposits due in the current Lease Year.
SECTION 6.6. PAYMENTS. Within thirty (30) days after Tenant's receipt of
each Adjustment Statement, Tenant shall pay to Landlord:
(i) The amount of Additional Rent shown on said Adjustment
Statement to be due to Landlord for the Lease Year last ended; plus
(ii) The amount, which when added to the monthly deposits
theretofore paid in the current Lease Year would provide that Landlord has
then received such portion of the monthly deposits as would have
theretofore been paid to Landlord had Tenant paid one twelfth (1/12) of
the monthly deposits, for the current Lease Year, to Landlord monthly on
the first day of each month of such Lease Year.
During the last Lease Year, Landlord may include in the monthly deposits its
estimate of the Additional Rent which may not be finally determined until after
the expiration of the Term. Tenant's obligation to pay such Additional Rent
shall survive the Term.
SECTION 6.7. PAYMENT ADJUSTMENTS. Tenant's payment of the monthly deposits
for each Lease Year plus any accrued interest thereon, shall be credited against
the Additional Rent for such Lease Year. If the monthly deposits paid by Tenant,
plus any accrued interest thereon, for any Lease Year exceed the Additional Rent
due for such Lease Year, then Landlord shall give a credit to Tenant in an
amount equal to such excess against the Additional Rent due for the next
succeeding Lease Year, except that if any such excess relates to the last Lease
Year of the Term, then, provided that no default of Tenant exists hereunder,
Landlord shall refund such excess to Tenant.
SECTION 6.8. RIGHT TO PAY. Landlord shall, at its option, have the right,
without notice to Tenant, at all times during the Term to pay any such Taxes not
timely paid by Tenant, and the amounts so paid, including reasonable expenses,
shall be so much Additional Rent due at the next rent day after any such
payments, with interest at the Lease Interest Rate from the date of payment
thereof.
SECTION 6.9. LANDLORD'S CONTEST OF TAXES. To the extent Landlord desires,
in Landlord's reasonable business judgment, to contest the imposition of any
Taxes against the Land and Improvements, Landlord shall proceed with such
protest in accordance with applicable law. Tenant agrees Taxes shall include all
of Landlord's reasonable costs and expenses, including legal fees and court
costs, in pursuing any such contest whether or not Landlord is successful in
such contest. There shall be deducted from Taxes the amount of any Taxes
refunded in any Lease Year, provided said refund relates to an assessment year
included within the Term of the Lease.
ARTICLE VII
USE
---
SECTION 7.1. USE. The Premises shall be used for the Use only, and for no
other purpose.
SECTION 7.2. PROHIBITED USES. Tenant shall not permit the Premises, or any
portion thereof, to be used in such manner which impairs Landlord's right, title
or interest in the Premises or any portion thereof, or in such manner which
gives rise to a claim or claims of adverse possession or of a dedication of the
Premises, or any portion thereof, for public use. Tenant shall not use or occupy
the Premises or permit the Premises to be used or occupied contrary to
6
<PAGE> 12
any statute, rule, order, ordinance, requirement, regulation or restrictive
covenant applicable thereto or in any manner which would violate any certificate
of occupancy affecting the same or which would render the insurance thereon void
or the insurance risk more hazardous, or which would cause structural injury to
the Improvements or cause the value or usefulness of the Premises or any part
thereof to diminish or which would constitute a public or private nuisance or
waste, and Tenant agrees that it will, promptly upon discovery of any such use,
immediately notify Landlord and take all necessary steps to compel the
discontinuance of such use.
ARTICLE VIII
MAINTENANCE, REPAIR AND REPLACEMENTS OF PREMISES
------------------------------------------------
SECTION 8.1.
A. TENANT'S OBLIGATIONS. Except as set forth in Section 8.1B below,
Tenant agrees, at Tenant's sole cost and expense, to take good care of the
Premises, including the Improvements, and keep same and all parts thereof,
including without limitation, the entire exterior and interior, the roof,
foundations, parking areas, sidewalks, railroad tracks, water, sewer, gas
and electricity connections, pipes, mains and all other fixtures,
machinery, apparatus, equipment, overhead cranes, and appurtenances thereto
together with any and all alterations and additions thereto, in good order,
condition and repair, suffering no waste or injury. Except as set forth in
Section 8.1B below, Tenant shall, at its sole cost and expense, promptly
make all necessary repairs and replacements, structural or otherwise,
ordinary as well as extraordinary, foreseen as well as unforeseen, in and
to any Improvements or equipment now or hereafter located upon the Land,
including, without limitation, the entire interior and exterior of the
Improvements, the roof, the foundations, sidewalks, parking areas, railroad
tracks, water, sewer, gas and electricity connections, pipes, mains and all
other fixtures, machinery, apparatus, equipment and appurtenances now or
hereafter belonging to, connected with or used in conjunction with the
Premises. All such repairs and replacements shall be of first-class quality
and sufficient for the proper maintenance and operation of the Premises.
Tenant shall keep and maintain the Premises, including the Improvements and
all sidewalks, vault space, parking areas and areas adjacent thereto, safe,
secure and clean, specifically including, but not by way of limitation,
snow and ice clearance, landscaping and removal of waste and refuse matter.
Tenant shall not permit anything to be done upon the Premises (and shall
perform all maintenance and repairs thereto so as not) to invalidate, in
whole or in part, or prevent the procurement of any insurance policies
which may, at any time, be required under the provisions of this Lease.
Tenant shall not obstruct or permit the obstruction of any parking area,
adjoining street or sidewalk.
B. LANDLORD'S OBLIGATIONS. Subject to the provisions of Articles X and
XIV hereof, Landlord shall make, or cause to be made, all necessary
maintenance, repairs and replacements to the "structural components" (as
hereinafter defined) of the Premises. For purposes of this Lease, the
phrase "STRUCTURAL COMPONENTS" shall mean the roof, exterior face of the
exterior walls (excluding windows, window frames, doors and door frames)
and foundation of the Premises; provided, however, during the first two
years of the Term, Landlord shall maintain and repair the roof of the
building portion of the Premises and Tenant shall reimburse Landlord for
the cost of such maintenance and repairs (up to $5,000.00 per year) within
fifteen (15) days after receipt of an invoice for such maintenance and
repair costs from Landlord. The cost of repairs after the first two (2)
years of the Term and replacements to such structural components shall be
the sole responsibility of Landlord except to the extent such costs arise
as a result of any act or omission of Tenant or any person, firm or entity
claiming by, through or under any of them, in which event, the cost
therefor shall be paid by Tenant, as Additional Rent, within five (5) days
after Landlord bills Tenant therefor from time to time.
SECTION 8.2. GOVERNMENTAL REQUIREMENTS. Tenant, at its own cost and
expense, shall promptly comply with any and all governmental requirement to or
affecting the Premises or any part thereof, irrespective of the nature of the
work required to be done, extraordinary as well as ordinary, whether or not the
same involve or require any
7
<PAGE> 13
structural changes or additions in or to the Improvements and irrespective of
whether or not such changes or additions be required on account of any
particular use to which the Premises or any part thereof are being put.
SECTION 8.3. TENANT'S RESPONSIBILITIES. Landlord shall not be required to
furnish any services or facilities whatsoever to the Premises. Tenant hereby
assumes full and sole responsibility for condition, operation, repair,
alteration, improvement, replacement, maintenance and management of the
Premises. Landlord shall not be responsible for any loss or damage to the person
or property of Tenant, any guests or invitees, any persons using or working on
the Premises, or any persons claiming by, through or under, or any agents,
employees, heirs, legal representatives, successors or assigns of, any of the
foregoing.
SECTION 8.4. MAINTENANCE CONTRACT. At Landlord's option, Tenant shall enter
into a maintenance contract, in form and substance and with a firm reasonably
satisfactory to Landlord, for the maintenance of the HVAC and sprinkler systems,
equipment and apparatus or from time to time, as requested by Landlord, and
provide Landlord as reasonably requested from time to time with evidence that it
has maintained said items on a regular basis with its own forces.
ARTICLE IX
TENANT'S INSURANCE
------------------
SECTION 9.1. COVERAGE REQUIRED. Tenant shall procure and maintain, or cause
to be maintained, at all times during the term of this Lease, at Tenant's sole
cost and expense, and until each and every obligation of Tenant contained in the
Lease has been fully performed, the types of insurance specified below, with
insurance companies authorized to do business in the State of Illinois covering
all operations under this Lease, whether performed by Tenant or by Contractors.
For purposes of this Article IX, "Contractors" shall mean Tenant and contractors
and subcontractors and materialmen or any tier providing services, material,
labor, operation or maintenance on, about or adjacent to the Premises, whether
or not in privity with Tenant.
A. IN GENERAL. Upon execution of the Lease, Tenant shall procure
and maintain the following kinds and amounts of insurance:
(i) WORKER'S COMPENSATION AND OCCUPATIONAL DISEASE
INSURANCE. Worker's Compensation and Occupational Disease
Insurance, in statutory amounts, covering all employees who
provide a service under this Lease or to the Project. Employer's
liability coverage with limits of not less than $ 100,000 each
accident or illness shall be included.
(ii) COMMERCIAL LIABILITY INSURANCE(PRIMARY AND
UMBRELLA). Commercial Liability Insurance or equivalent with
limits of not less than $5,000,000 per occurrence, combined
single limit, for bodily injury, personal injury, and property
damage liability. Products/completed operations, explosion,
collapse, independent contractors, broad form property damage and
contractual liability (with no limitation) coverages are to be
included. Landlord is to be named as additional insureds, on a
primary, non-contributory basis for any liability, arising
directly or indirectly from this Lease.
(iii) AUTOMOBILE LIABILITY INSURANCE. When any motor
vehicles are used in connection with this Lease, Tenant shall
provide Automobile Liability Insurance with limits of not less
than $2,000,000 per occurrence combined single limit, for bodily
and property damage. Landlord is to be named as additional
insureds on a primary non-contributory basis.
8
<PAGE> 14
(iv) CONTENTS INSURANCE. Insurance against fire,
sprinkler leakage, vandalism, and the extended coverage perils
for the full insurable value of all contents of Tenant within the
Premises, and of all office furniture, trade fixtures, office
equipment, merchandise and all other items of Tenant's property
on the Premises and business interruption insurance.
(v) REAL PROPERTY INSURANCE. Real property insurance
(hereinafter referred to as "Real Property Insurance") shall insure
the Premises and shall include in its coverage all perils
customarily designated as "All Risk" or "Special" including, but
not limited to, fire, extended coverage, vandalism, malicious
mischief, sewer back-up, flood, earthquake and building ordinance
coverage (full limits with sub-limits for increased cost of
construction and demolition). The policy or policies for Real
Property Insurance shall be written for not less than one hundred
percent (100%) of the full current replacement cost of the Premises
and such policy or policies shall include a replacement cost
endorsement and an agreed amount endorsement. Tenant shall bear the
cost of any appraisal, if necessary, required to obtain the
replacement cost endorsement and the agreed amount endorsement.
Landlord shall cooperate in obtaining the replacement cost
endorsement and the agreed amount endorsement by furnishing
information regarding the replacement cost of the Premises. The
policy and policies of Real Property Insurance shall be subject to
a deductible amount not to exceed One Hundred Thousand Dollars and
No Cents ($100,000.00) for covered losses. Tenant shall bear the
cost of such a deductible in the event that a loss covered by the
Real Property Insurance occurs. The Real Property Insurance shall
provide that payments made in connection with losses covered by the
policy shall be made to Landlord. In the event that the Real
Property Insurance provides a "blanket" limit of liability
applicable to real property other than the Premises or to personal
property of Tenant, Tenant shall obtain a loss payable clause
applicable to the Real Property Insurance in favor of Landlord
specifying a limit of liability equal to not less than one hundred
percent (100%) of the full current replacement value of the
Premises.
(vi) BOILER AND MACHINERY INSURANCE. Boiler and
machinery insurance (hereinafter referred to as "Boiler and
Machinery Insurance") shall include in its coverage all steam
boilers, pressure tanks, air conditioning equipment, pipes,
turbines, engines, other similar pressure vessels and other such
similar apparatus on the Premises on the Commencement Date of this
Lease and such similar apparatus, if any, that Tenant may install
on the Premises during the term of this Lease. The policy or
policies of Boiler and Machinery Insurance shall be written for an
amount of not less than FIVE HUNDRED THOUSAND AND NO/100
($500,000.00) DOLLARS per occurrence on a repair and replacement
cost basis.
(vii) RENTAL VALUE. Loss of rents insurance
(hereinafter referred to as "Rental Value Insurance") for loss of
gross Rent for a period of twelve (12) months.
(viii) OTHER INSURANCE. Such other insurance required by
Landlord under the terms customarily carried by Landlord from time
to time for other buildings owned by Landlord, excluding,
environmental liability insurance provided, however, that Landlord
may purchase environmental liability insurance from Landlord's
insurance carrier and, if so purchased, Tenant shall reimburse
Landlord for the cost of the environmental liability insurance
annually, within fifteen (15) days after written demand from
Landlord. Prior to purchasing said environmental liability
insurance, Landlord shall give Tenant sixty (60) days prior notice
of its intention to purchase said environmental liability insurance
and shall allow Tenant, the opportunity at Tenant's sole cost and
expense, to provide said environmental liability insurance with
coverage at least equal to that to be provided to Landlord by
Landlord's insurance carrier, and from companies that are
acceptable to Landlord in Landlord's reasonable discretion.
9
<PAGE> 15
B. CONSTRUCTION. During any construction that Tenant may
perform may cause to be performed during the term of this Lease (including
improvements, betterments or repairs), Tenant shall procure and maintain,
or cause to be maintained by its Contractors, the following kinds and
amounts of insurance:
(i) Those coverages as required under
Section 9.1(A)(i)(ii)(iii).
(ii) ALL RISK BUILDERS RISK INSURANCE. All Risk
Blanket Builder's Risk Insurance to cover the materials,
supplies, equipment, machinery and fixtures that are or will be
part of the Project. Coverage extensions shall include the
following: right to partial occupancy, material stored off-site
and in-transit, boiler and machinery, earthquake, flood
(including surface water backup), collapse, water damage, debris
removal, faulty workmanship or materials, testing
mechanical-electrical breakdown and failure, deletion of freezing
and temperature exclusions, business interruption, extra expense,
loss of revenue, loss of rents and loss of use of property, as
applicable, Landlord shall be named as loss payee.
(iii) PROFESSIONAL LIABILITY. When any architects,
engineers, or consulting firms perform work in connection with
this. Lease, Professional Liability Insurance shall be maintained
with limits of $ 1,000,000. The policy shall have an extended
reporting period of two (2) years. When policies are renewed or
replaced, the policy retroactive date must coincide with, or
precede, start of work.
SECTION 9.2. POLICIES. All insurance policies shall be written with
insurance companies and shall be in form satisfactory to Landlord. All insurance
policies shall name Landlord as an additional insured and loss payee as their
respective interests may appear and shall provide that they may not be
terminated or modified without sixty (60) days' advance written notice to
Landlord. All policies shall also contain an endorsement that Landlord, although
named as additional insured, shall nevertheless be entitled to recover for
damages caused by the negligence of Tenant. The minimum limits of insurance
specified in this Section shall in no way limit or diminish Tenant's liability
under this Lease. Tenant shall furnish to Landlord, not less than fifteen (15)
days prior to the date such insurance is first required to be carried by Tenant,
and thereafter at least fifteen (15) days prior to the expiration of each such
policy, certificates of insurance, and such other evidence of coverages required
herein as Landlord may reasonably request, and evidence of payment of all
premiums and other expenses owed in connection therewith. Upon Tenant's default
in obtaining or delivering the certificates OF insurance FOR any such insurance
or Tenant's failure to pay the charges therefor, Landlord may, at its option, on
or after the tenth (10th) day after written notice thereof is given to Tenant,
procure or pay the charges for any such policy or policies and the total cost
and expense (including attorneys' fees) thereof shall be immediately paid by
Tenant to Landlord as Additional Rent upon receipt of a bill therefor. Within
thirty (30) days after demand by Landlord that the minimum amount of any
coverage be so increased, Tenant shall furnish Landlord with evidence of
Tenant's compliance with such demand.
SECTION 9.3. SUBROGATION. Landlord and Tenant agree to have all fire and
extended coverage and material damage insurance which may be carried by either
of them endorsed with a clause providing that any release from liability of or
waiver of claim for recovery from the other party or any of the parties named in
Section 9.2 above entered into in writing by the insured thereunder prior to any
loss or damage shall not affect the validity of said policy or the right of the
insured to recover thereunder, and providing further that the insurer waives all
rights of subrogation which such insurer might have against the other party or
any of the parties named in Section 9.2 above. Without limiting any release or
waiver of liability or recovery contained in any other Section of this Lease but
rather in confirmation and furtherance thereof, Landlord and any beneficiaries
of Landlord waive all claims for recovery from Tenant, and Tenant waives all
claims for recovery from Landlord, any beneficiaries of Landlord and the
managing agent for the Project and their respective agents, partners and
employees, for any loss or damage to any of its property insured under valid and
collectible insurance policies to the extent of any recovery collectible under
such insurance policies. Notwithstanding the foregoing or anything, contained in
this Lease to the contrary, any release or any waiver of claims shall not be
operative, nor shall the foregoing endorsements be required, in any case where
the effect of such release or waiver is
10
<PAGE> 16
to invalidate insurance coverage or invalidate the right of the insured to
recover thereunder or increase the cost thereof (provided that in the case of
increased cost the other party shall have the right, within ten (10) days
following written notice, to pay such increased cost, thereby keeping such
release or waiver in full force and effect).
SECTION 9.4. SELF-INSURANCE. In order to permit Tenant to self-insure,
Landlord waives the insurance requirements imposed upon Tenant under Section 9.1
of this Lease so long as (i) Tenant maintains availability on its bank revolving
line of credit of at least Ten Million and No/100 Dollars ($10,000,000.00)
according to its most recent certified financial statement. Tenant is a publicly
held company and shall supply Landlord, on a quarterly basis throughout the term
of this Lease, with a copy of its published financial statements. If Tenant
elects to self-insure, Tenant shall be responsible for any losses or liabilities
that would have been assumed by the insurance companies that would have issued
the insurance required of Tenant hereunder. Tenant will notify Landlord in
advance of any period for which it intends to self-insure and shall provide
Landlord with satisfactory evidence that it complies with these requirements in
order to give Landlord an opportunity to confirm the satisfaction of the
conditions set forth above.
SECTION 9.5. MISCELLANEOUS INSURANCE PROVISIONS. Landlord and Tenant
further agree as follows:
A. Tenant expressly understands and agrees that any insurance
coverages and limits furnished by the Tenant and Contractors shall in no
way limit the Tenant's and Contractor's liabilities and responsibilities
specified under the Lease, or contracts executed relating to the Project,
or by law.
B. The failure of Landlord to obtain such evidence from Tenant
or Contractors before permitting Tenant or Contractors to commence work
shall not be deemed to be a waiver by Landlord, and Tenant or contractors
shall remain under continuing obligation to maintain the insurance
coverage.
C. Any and all deductibles on referenced insurance coverages
shall be borne by Tenant and Contractors.
D. Tenant expressly understands and agrees that any insurance
maintained by Landlord shall apply in excess of and not contribute with
insurance provided by the Tenant or Contractors under the Lease.
E. If Tenant or any Contractors desire additional coverage,
higher limits of liability, or other modifications for their own
protection, Tenant and such Contractors shall be responsible for the
acquisition and cost of such additional protection.
F. Tenant agrees, and shall cause each Contractor in connection
with the Project to agree, that all insurers shall waive their rights of
subrogation against Landlord.
G. Tenant and Contractors shall not violate or permit to be
violated any of the conditions or provisions of any of the insurance
policies, and Tenant and Contractors shall so perform and satisfy or cause
to be performed and satisfied the requirements of the companies writing
such policies so that at all times companies of good standing, satisfactory
to Landlord shall be willing to write and continue such insurance.
H. Landlord shall not be limited in the proof of any damages
which Landlord may claim against Tenant and contractors arising out of or
by reason of Tenant's and Contractor's failure to provide and keep in force
insurance, as aforesaid, to the amount of the insurance premium or premiums
not paid or incurred by Tenant and Contractors and which would have been
payable under such insurance, but Landlord shall also be entitled to
recover as damages for such breach the uninsured amount of any loss, to the
extent of any deficiency in the insurance required by the provisions of
this Lease, and damages, costs and expenses of suit suffered or incurred by
reason of damage to, or destruction of, the Project or the Premises
occurring during any period when Tenant or Contractors shall have failed or
neglected to provide insurance as aforesaid.
11
<PAGE> 17
I. The insurance required by this Lease, at the option of
Tenant or Contractors, may be effected by blanket or umbrella policies
issued to Tenant or Contractors covering the Premises and other properties
owned or leased by Tenant or Contractors, provided that the policies
otherwise comply with the provisions of this Lease and allocate to the
Premises the specified coverage, without possibility of reduction or
coinsurance by reason of, or damage to, any other premises covered therein.
J. All insurance companies shall have a Best rating of not less
than A/VII, or an equivalent rating in the event Best ceases to exist or
provide a rating.
K. Tenant and Contractors shall provide and keep in force such
other insurance in such amounts as may from time to time be reasonably
required by Landlord or a holder of a Mortgage (defined in Section 23.1
hereof) against such other insurable hazards as at the time are commonly
insured against in the case of prudent owners of properties similar to the
Project and the Premises, and in that connection Landlord may require
changes in the forms, types and amounts of insurance required pursuant to
this Section or add to, modify or delete other requirements; and in any
event, if under applicable law, rule, regulation or ordinance of any
governmental authority, state or federal, having jurisdiction in the
Premises, liability may be imposed upon Landlord on account of the use or
operation of the Premises or the Project or other improvements, insurance
within limits reasonably satisfactory to Landlord shall be maintained by
Tenant and Contractors against any such liability.
L. The required insurance to be carried shall not be limited by
any limitations expressed in the indemnification language herein or any
limitation placed on the indemnity therein given as a matter of law.
ARTICLE X
PROPERTY INSURANCE
------------------
[THIS ARTICLE INTENTIONALLY LEFT BLANK.]
ARTICLE XI
DAMAGE OR DESTRUCTION
---------------------
SECTION 11.1. DAMAGE OR DESTRUCTION BY FIRE OR CASUALTY. In the event the
Premises are damaged by fire, explosion or other casualty, Landlord shall
diligently proceed with respect to the proposed restoration promptly after
receipt of the insurance proceeds. Landlord shall commence the repair,
restoration or rebuilding thereof and shall complete such restoration, repair or
rebuilding as soon as reasonably possible after the receipt of such proceeds,
subject to extension due to delay because of changes, deletions, or additions in
construction requested by Tenant, acts of Tenant, strikes, lockouts, casualties,
acts of God, war, fuel or energy shortages, material or labor shortages,
governmental regulation or control, severe weather conditions or other causes
beyond the control of Landlord ("Extension Events"). In the event of any such
casualty all insurance proceeds shall be payable to Landlord. In no event shall
Landlord be required to repair or replace any alterations or improvements made
by Tenant which are not related to the Improvements, Tenant's Equipment or any
other fixtures, furnishing and personal property of Tenant. Tenant agrees that
Tenant shall pay to Landlord within thirty (30) days after the date the Premises
are damaged by fire, explosion or other casualty the amount necessary to pay the
cost of restoration, repair and rebuilding in excess of the insurance proceeds.
If the amount of the insurance proceeds are unknown at such time, Tenant shall
immediately pay Landlord the amount of the deductible with the balance, less all
amounts paid by the insurance carrier to Landlord, to be paid by Tenant to
Landlord within ten (10) business days after the amount of the insurance
proceeds is determined. Landlord's obligation to repair, restore or rebuild the
Premises shall be limited to restoring the Premises to substantially the
condition in which the same existed prior to the casualty. Rent and all other
charges payable by Tenant hereunder shall
12
<PAGE> 18
abate during the period of such repair, restoration or rebuilding to the extent
that the Improvements are not tenantable because of any damage or destruction,
but only to the extent of the Rental Value Insurance proceeds actually received
by Landlord. In the event the casualty causes fifty percent (50%) or more of the
Premises to be untenantable during the last twenty-four (24) months of the Term,
Landlord may terminate this Lease as of the date of such casualty by providing
notice to Tenant within thirty (30) days after occurrence of the fire or other
casualty causing the damage, in which event, all insurance proceeds shall be
paid to the Landlord and in addition Tenant shall pay to Landlord the amount of
any deductible carried by Tenant under its insurance policies.
ARTICLE XII
LIENS
-----
SECTION 12.1. LIEN CLAIMS. Tenant shall not do any act which shall in any
way encumber the title of Landlord in and to the Premises, nor shall any
interest or estate of Landlord in the Premises be in any way subject to any
claim by way of lien or encumbrance, whether by operation of law or by virtue of
any express or implied contract by Tenant, and any claim to or lien upon the
Premises arising from any act or omission of Tenant shall accrue only against
the leasehold estate of Tenant and shall in all respects be subject and
subordinate to the paramount title and rights of Landlord in and to the
Premises. Tenant will not permit the Premises to become subject to any
mechanics', laborers' or materialmen's lien on account of labor or material
furnished to Tenant or claimed to have been furnished to Tenant in connection
with work of any character performed or claimed to have been performed on the
Premises by or at the direction of sufferance of Tenant; provided, however that
Tenant shall have the right to contest in good faith and with reasonable
diligence, the validity of any such lien or claimed lien if Tenant shall first
give to Landlord an amount equal to one hundred twenty percent (120%) of the
amount of the lien or claimed lien which, together with interest earned thereon,
shall be held by Landlord as security to insure payment thereof and to prevent
any sale, foreclosure or forfeiture of the Premises by reason of non-payment
thereof. The amount so deposited with Landlord shall be held by Landlord in an
account established at a federally insured banking institution until
satisfactory removal of said lien or claim of lien. On any final determination
of the lien or claim for lien, Tenant will immediately pay any judgment
rendered, with all proper costs and charges, and will, at its own expense, have
the lien released and any judgment satisfied. Should Tenant fail to diligently
contest and pursue such lien contest, Landlord may, at its option, use the sums
so deposited to discharge any such lien and upon the satisfaction of such lien
or encumbrance Landlord shall pay all such sums remaining on deposit to Tenant.
SECTION 12.2. LANDLORD'S RIGHT TO CURE. If Tenant shall fail to contest the
validity of any lien or claimed lien or fail to give security to Landlord to
insure payment thereof, or shall fail to prosecute such contest with diligence,
or shall fail to have the same released and satisfy any judgment rendered
thereon, then Landlord may, at its election (but shall not be so required)
remove or discharge such lien or claim for lien (with the right, in its
discretion, to settle or compromise the same), and any amounts advanced by
Landlord, including reasonable attorneys' fees, for such purposes shall be so
much additional rent due from Tenant to Landlord at the next rent date after any
such payment, with interest thereon at the Lease Interest Rate from the date so
advanced.
ARTICLE XIII
ALTERATIONS AND IMPROVEMENTS
----------------------------
SECTION 13.1. ALTERATIONS. Tenant shall not at any time during the Term of
this Lease make any openings in the roof or exterior walls of the Building or
make any Tenant alteration, addition or improvement to the Premises or any
portion thereof (collectively, "Alterations") without in each instance, the
prior written consent of Landlord; provided, however, upon notice to, but
without the consent of Landlord, Tenant shall have the rig it to make any
Alterations where same are non-structural, do not require openings on the roof
or exterior walls of the Improvements, do not affect any Building system, and do
not exceed TWENTY FIVE THOUSAND AND NO/100 DOLLARS
13
<PAGE> 19
($25,000.00) in the aggregate in any twelve (12)-month period. No Alteration to
the Premises for which Landlord's consent is required shall be commenced by
Tenant until Tenant has, subject to Tenant's right to self-insure in accordance
with Section 9.4 hereof, furnished Landlord with a satisfactory certificate or
certificates from an insurance company acceptable to Landlord, evidencing
workmen's compensation coverage, and insurance coverage in amounts satisfactory
to Landlord and protecting Landlord against public liability and property damage
to any person or property, on or off the Premises, arising out of and during the
making of such alterations, additions or improvements. Any Alteration by Tenant
hereunder shall be done in a good and workmanlike manner in compliance with any
applicable governmental law, statute, ordinance or regulation. Upon completion
of any Alteration by Tenant hereunder, Tenant shall furnish Landlord with a copy
of the "as built" plans covering such construction. Tenant, at its sole cost and
expense, will make all Alterations on the Premises which may be necessary by the
act or neglect of any other person or corporation (public or private), except
Landlord, its agents, employees or contractors. Before commencing any
Alterations, involving an estimated cost of more than TWENTY FIVE THOUSAND AND
NO/100 DOLLARS ($25,000.00): (a) plans and specifications therefor, prepared by
a licensed architect, shall be submitted to and approved by Landlord (such
approval shall not be unreasonably withheld or delayed); (b) Tenant shall
furnish to Landlord an estimate of the cost of the proposed work, certified by
the architect who prepared such plans and specifications; (c) all contracts for
any proposed work shall be submitted to and approved by Landlord; and (d) Tenant
shall either furnish to Landlord a bond in form and substance satisfactory to
Landlord, or such other security reasonably satisfactory to Landlord to insure
payment for the completion of all work free and clear of liens. Tenant further
agrees that all contractors engaging in any construction activity by and for the
benefit of Tenant for which Landlord's consent shall be required shall obtain
comprehensive/commercial general liability, worker's compensation and such other
liability insurance in such amounts as may be reasonably required by Landlord
naming the Landlord as an additional insured and providing liability coverage
during all phases of construction including, without limitation: (a)
contractor's and owners protection; (b) blanket contractual liability coverage;
(c) broad form property damage insurance; (d) statutory worker's compensation
coverage and employer's liability coverage; (e) coverage under the structural
work act of the State of Illinois; and (f) environmental liability, if
applicable. Before commencing any Alteration, Tenant shall provide Landlord with
a written certification that the Alteration does not have any environmental
impact on the Premises. Prior to the commencement of any construction activity
for which Landlord's consent shall be required, certificates of such insurance
coverages (and original policies with respect to environmental liability
insurance) shall be provided to Landlord.
SECTION 13.2. OWNERSHIP OF ALTERATIONS. All Alterations (except Tenant's
Equipment, as defined in Section 21.2 hereof), put in at the expense of Tenant
shall become the property of Landlord and shall, unless the Landlord request
their removal, remain upon and be surrendered with the Premises as a part
thereof at the termination of this Lease, without compensation or allowance to
Tenant. Landlord may, at its sole option, request that Tenant, at Tenant's sole
cost, remove any such Alterations and if Tenant shall fail to do so, Landlord
may remove the same and Tenant shall pay the cost of such removal to Landlord
upon demand. Notwithstanding the foregoing, upon Tenant's request prior to such
time as Tenant intends to make any Alteration, Landlord shall indicate to Tenant
whether or not such Alterations must be removed upon surrender of the Premises.
SECTION 13.3. SIGNS. Tenant shall not place any signs on any part of the
Premises without the prior written consent of Landlord. Notwithstanding any of
the immediately foregoing provisions of this Section 13.3, upon notice and with
the consent of Landlord, which consent shall not be unreasonably withheld,
Tenant may place a monument sign adjacent to the Premises, provided that: (i)
the installation and dimensions of said sign is in strict accordance with
applicable law, ordinances and restrictions; (ii) Tenant continually maintains
said sign in a first-class manner; and (iii) Tenant, at Tenant's sole cost and
expense, removes said sign at the expiration of the Term and restores the area
in which said sign is placed to its condition prior to the installation of said
sign.
Section 13.4. TENANT INDEMNITY. Tenant hereby agrees to indemnify, defend
and hold the Landlord, its beneficiaries, shareholders, partners or members and
their respective agents and employees harmless from any and all liabilities of
every kind and description which may arise out of or be connected in any way
with said Alterations. Any mechanic's lien filed against the Premises for work
claimed to have been furnished to Tenant shall be discharged of
14
<PAGE> 20
record by Tenant within ten (10) days thereafter, at Tenant's expense. Upon
completing any Alterations, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and receipted bills covering all
labor and materials expended and used. All Alterations shall comply with all
insurance requirements and with all ordinances and regulations of any pertinent
governmental authority. All alterations and additions shall be constructed in a
workmanlike manner and only good grades of materials shall be used.
SECTION 13.5. ENVIRONMENTAL IMPACT. Notwithstanding, any other term,
covenant or condition contained in this Lease, in the event that any Alteration
has any environmental impact on the Premises, Landlord may deny the Tenant the
right to proceed in Landlord's sole and absolute discretion.
ARTICLE XIV
CONDEMNATION
------------
SECTION 14.1. TAKING: LEASE TO TERMINATE. In the event the whole of the
Premises shall be taken as a result of the exercise of the power of eminent
domain or condemned for a public or quasi-public use or purpose by any competent
authority or sold to the condemning authority under threat of condemnation, or
in the event a portion of the Premises shall be taken or sold as a result of
such event, and as a result thereof the balance of the Premises cannot be used
for the same purpose as before such taking, sale or condemnation, then and in
either of such events, the Term of this Lease shall terminate as of the date of
vesting of title pursuant to such proceeding or sale. The total award,
compensation or damages received from such proceeding or sale (collectively, the
"Award"), shall be paid to and be the property of Landlord, whether the Award
shall be made as compensation for diminution of the value of the leasehold or
the fee of the Premises or otherwise, and Tenant hereby assigns to Landlord, all
of Tenant's right, title and interest in and to the Award. Tenant shall execute,
immediately upon demand of Landlord, such documents as may be necessary to
facilitate collection by Landlord of any such Award.
SECTION 14.2. TAKING: LEASE TO CONTINUE. In the event only a part of the
Premises shall be taken as a result of the exercise of the power of eminent
domain or condemned for a public or quasi-public use or purpose by any competent
authority or sold to the condemning authority under threat of condemnation, and
as a result thereof the balance of the Premises can be used for the same purpose
as before such taking, sale or condemnation, this Lease shall not terminate and
Landlord, at its sole cost and expense, shall, to the extent practical, promptly
repair and restore the Premises, subject to any Extension Events. Any Award paid
as a consequence of such taking, sale, or condemnation, shall be paid to
Landlord. Any sums not so disbursed shall be retained by Landlord. In the event
of a taking of land only, this Lease shall not terminate and Landlord shall not
be obligated to repair or restore the Premises.
SECTION 14.3. TENANT'S CLAIM. To the extent permitted by law and subject to
the rights of any lender with respect to the Premises, Tenant shall be allowed
to pursue a claim against the condemning authority (hereinafter referred to as
the "Tenant's Claim") that shall be independent of and wholly separate from any
action, suit or proceeding relating to any award to Landlord for reimbursement
of relocation expenses or for Tenant's Equipment and personal property,
provided: (i) Tenant's Claim shall in no way limit, affect, alter or diminish in
any kind or way whatsoever Landlord's award as a result of such taking, sale or
condemnation; (ii) Tenant's Claim shall in no event include any claim for any
interest in real property, it being expressly understood and agreed that all
sums paid with respect to the real property interests taken, sold or condemned
shall be the sole property of Landlord; and (iii) Tenant's Claim shall in no
event be joined with Landlord's proceeding or argued or heard concurrently
therewith and if the tribunal hearing Tenant's Claim orders such joinder, Tenant
agrees to voluntarily dismiss Tenant's Claim without prejudice until such time
as Landlord has received its award for such taking, sale or condemnation.
15
<PAGE> 21
ARTICLE XV
RENT ABSOLUTE
-------------
SECTION 15.1. RENT ABSOLUTE. This Lease shall be deemed and construed to be
a "net lease" and Tenant agrees to pay all costs and expenses of every kind and
nature whatsoever, ordinary and extraordinary, arising out of or in connection
with the ownership, maintenance, repair, replacement, use and occupancy of the
Premises during the Term of this Lease, which, except for the execution and
delivery hereof, would otherwise have been payable by Landlord.
ARTICLE XVI
ASSIGNMENT -- SUBLETTING BY TENANT
----------------------------------
SECTION 16.1. NO ASSIGNMENT, SUBLETTING OR OTHER TRANSFER. Tenant shall not
assign this Lease or any interest hereunder, nor shall Tenant sublet or permit
the use or occupancy of the Premises or any part thereof by anyone other than
Tenant, without the express prior written consent of Landlord which consent
shall not be unreasonably withheld. No assignment or subletting shall relieve
Tenant of its obligations hereunder, and Tenant shall continue to be liable as a
principal and not as a guarantor or surety, to the same extent as though no
assignment or sublease had been made, unless specifically provided to the
contrary in Landlord's consent. Consent by Landlord pursuant to this Article
shall not be deemed, construed or held to be consent to any additional
assignment or subletting, but each successive act shall require similar consent
of Landlord. Landlord shall be reimbursed by Tenant for any costs or expenses
incurred pursuant to any request by Tenant for consent to any such assignment or
subletting. In the consideration of the granting or denying of consent, Landlord
may, at its option, take into consideration: (i) the business reputation and
credit worthiness of the proposed subtenant or assignee; (ii) any required
alteration of the Premises; (iii) the intended use of the Premises by the
proposed subtenant or assignee; and (iv) any other factors which Landlord shall
deem relevant.
Section 16.2. OPERATION OF LAW. Tenant shall not allow or permit any
transfer of this Lease, or any interest hereunder, by operation of law, or
convey, mortgage, pledge or encumber this Lease or any interest hereunder.
SECTION 16.3. EXCESS RENTAL. If Tenant shall, with Landlord's prior consent
as herein required, sublet the Premises, an amount equal to one hundred percent
(100%) of the rental in excess of the base rent and any additional rent herein
provided to be paid shall be for benefit of Landlord and shall be paid to
Landlord promptly when due under any such subletting as additional rent due
hereunder.
SECTION 16.4. MERGER OR CONSOLIDATION. If Tenant is a corporation whose
stock is not publicly traded, any transaction or series of transactions
(including, without limitation, any dissolution, merger, consolidation or other
reorganization of Tenant, or any issuance, sale, gift, transfer or redemption of
any capital stock of Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a voluntary assignment of this Lease by Tenant subject to the provisions of
this Section 16. If Tenant is a partnership, any transaction or series of
transactions (including without limitation any withdrawal or admittance of a
partner or a change in any partner's interest in Tenant, whether voluntary,
involuntary or by operation of law, or any combination of any of the foregoing
transactions resulting in the transfer of control of Tenant, other than by
reason of death, shall be deemed to be a voluntary assignment of this Lease by
Tenant subject to the provisions of this assignment of this Lease by Tenant
subject to the provisions of this Section 16. If Tenant is a corporation, a
change or series of changes in ownership of stock which would result in direct
or indirect change in ownership by the stockholders or an affiliated group of
stockholders of less than fifty percent (50%) of the outstanding stock as of the
date of the execution and delivery of this Lease shall not be considered a
change of control. Notwithstanding the immediately foregoing, Tenant may, upon
notice to, but without Landlord's consent, assign this Lease to any corporation
resulting from a merger or consolidation of Tenant, provided that ;he total
assets and the total net worth of such assignee after such consolidation or
merger shall be in excess of the greater of (i) the net worth of Tenant
immediately prior to such consolidation or merger, or (ii) the
16
<PAGE> 22
net worth of Tenant as of the date hereof, determined by generally accepted
accounting principles and provided that Tenant is not at such time in default
hereunder, and provided further that such successor shall execute an instrument
in writing, acceptable to Landlord in its reasonable discretion, fully assuming
all of the obligations and liabilities imposed upon Tenant hereunder and deliver
the same to Landlord. Tenant shall provide in its notice to Landlord such
information as may be reasonably required by Landlord to determine that the
requirements of this Section 16.4 have been satisfied. As used in this Section
16.4, the term "control" means possession of the power to vote not less than a
majority interest of any class of voting securities and partnership or limited
liability company interests or to direct or cause the direction (directly or
indirectly) of the management or policies of a corporation, or partnership or
limited liability company through the ownership of voting securities,
partnership interests or limited liability company interests, respectively.
SECTION 16.5. UNPERMITTED TRANSACTION. Any assignment, subletting, use,
occupancy, transfer or encumbrance of this Lease or the Premises without
Landlord's prior written consent shall be of no effect and shall, at the option
of Landlord, constitute a default under this Lease.
ARTICLE XVII
ANNUAL STATEMENTS
-----------------
SECTION 17.1. ANNUAL STATEMENTS. Tenant agrees to furnish Landlord
annually, within ninety (90) days of the end of such fiscal year with a copy of
its annual audited statements, together with applicable footnotes and any other
financial information reasonably requested by Landlord (hereinafter collectively
referred to as, the "Financial Information") and agrees that Landlord may
deliver such Financial Information to any mortgagee, prospective mortgagee or
prospective purchaser of the Premises.
ARTICLE XVIII
INDEMNITY FOR LITIGATION
------------------------
SECTION 18.1. INDEMNITY FOR LITIGATION. Tenant agrees to pay, and to
indemnify and defend Landlord against, all costs and expenses (including
reasonable attorneys' fees) incurred by or imposed upon Landlord by or in
connection with any litigation to which Landlord becomes or is made a party
without fault on its part, whether commenced by or against Tenant, or any other
person or entity or that may be incurred by Landlord in enforcing any of the
covenants and agreements of this Lease with or without the institution of any
action or proceeding relating to the. Premises or this Lease, or in obtaining
possession of the Premises after an Event of Default hereunder or upon
expiration or earlier termination of this Lease. The foregoing notwithstanding,
Tenant's responsibility under this Section 18.1 to pay Landlord's costs and
expenses (including reasonable attorneys' fees) shall not extend to such costs
and expenses incurred in defending an action brought by Tenant to enforce the
terms of this Lease in which there is a court determination that Landlord failed
to perform its obligations under this Lease. The provisions of this Section 18.1
shall survive the expiration or earlier termination of this Lease.
ARTICLE XIX
ESTOPPEL CERTIFICATES
---------------------
SECTION 19.1. ESTOPPEL CERTIFICATE. Tenant agrees that on the Commencement
Date and at any time and from time to time thereafter, upon not less than ten
(10) days' prior written request by Landlord, it will execute, acknowledge and
deliver to Landlord, or Landlord's mortgagee to the extent factually accurate, a
statement in writing in the form of EXHIBIT "B" attached hereto and by this
reference incorporated herein; provided, however, Tenant agrees
17
<PAGE> 23
to certify to any prospective purchaser or mortgagee any other reasonable
information specifically requested by such prospective purchaser or mortgagee.
ARTICLE XX
INSPECTION OF PREMISES
----------------------
SECTION 20.1. INSPECTIONS. Tenant agrees to permit Landlord and any
authorized representatives of Landlord, to enter the Premises at all reasonable
times on reasonable advance notice, except in the case of emergency, for the
purpose of inspecting the same. Any such inspections shall be solely for
Landlord's purposes and may not be relied upon by Tenant or any other person.
SECTION 20.2. SIGNS. Tenant agrees to permit Landlord and any authorized
representative of Landlord to enter the Premises at all reasonable times during
business hours on reasonable advance notice to exhibit the same for the purpose
of sale, mortgage or lease, and during the final year of the Term hereof or any
extension thereof, Landlord may display on the Premises customary "For Sale" or
"For Rent" signs.
ARTICLE XXI
FIXTURES
--------
SECTION 21.1. BUILDING FIXTURES. All improvements and all plumbing,
heating, lighting, electrical and air-conditioning fixtures and equipment, and
other articles of personal property used in the operation of the Premises (as
distinguished from operations incident to the business of Tenant), whether or
not attached or affixed to the Premises ("Building Fixtures"), shall be and
remain a part of the Premises and shall constitute the property of Landlord.
SECTION 21.2. TENANT'S EQUIPMENT. All of Tenant's trade fixtures and all
personal property, fixtures, apparatus, machinery and equipment now or hereafter
located upon the Premises, other than Building Fixtures, as shall be and remain
the personal property of Tenant, and the same are herein referred to as
"Tenant's Equipment."
SECTION 21.3. REMOVAL OF TENANT'S EQUIPMENT. Tenant's Equipment may be
removed from time to time by Tenant; provided, however, that if such removal
shall injure or damage the Premises, Tenant shall repair the damage and place
the Premises in the same condition as it would have been if such Tenant's
Equipment had not been installed.
ARTICLE XXII
DEFAULT
-------
SECTION 22.1. EVENTS OF DEFAULT. Tenant agrees that any one or more of the
following events shall be considered "Events of Default" as said term is used
herein:
(a) If an order, judgment or decree shall be entered by any
court adjudicating Tenant a bankrupt or insolvent, or approving a petition
seeking reorganization of Tenant or appointing a receiver, trustee or
liquidator of Tenant, or of all or a substantial part of its assets, and
such order, judgment or decree shall continue unstayed and in effect for
any period of sixty (60) days; or
(b) Tenant shall file an answer admitting the material
allegations of a petition filed against Tenant in any bankruptcy,
reorganization or insolvency proceeding or under any laws relating to the
relief of debtors, readjustment or indebtedness, reorganization,
arrangements, composition or extension; or
18
<PAGE> 24
(c) Tenant shall make any assignment for the benefit of creditors
or shall apply for or consent to the appointment of a receiver, trustee or
liquidator of Tenant, or any of the assets of Tenant; or
(d) Tenant shall file a voluntary petition in bankruptcy, or
shall admit in writing its inability to pay its debts as they come due, or
shall file a petition or an answer seeking reorganization or arrangement
with creditors or take advantage of any insolvency law; or
(e) A decree or order appointing a receiver of the property of
Tenant shall be made and such decree or order shall not have been vacated
within sixty (60) days from the date of entry or granting thereof; or
(f) Tenant shall vacate the Premises or abandon same during the
Term hereof; or
(g) Tenant shall default in making any payment of Rent or other
payment required to be made by Tenant hereunder when due as herein
provided; or
(h) Tenant shall be in default in the performance of or
compliance with any of the agreements, terms, covenants or conditions in
this Lease other than those referred to in the foregoing subparagraphs (a)
through (g) of this Section for a period of twenty (20) days after notice
from Landlord to Tenant specifying the items in default, or in the case of
a default which cannot, with due diligence, be cured within said twenty
(20)-day period, Tenant fails to proceed within said twenty (20)-day period
to cure the same and thereafter to prosecute the curing of such default
with due diligence (it being intended in connection with a default not
susceptible of being cured with due diligence within said twenty (20)-day
period that the time of Tenant within which to cure the same shall be
extended for such period as may be necessary to complete the same with all
due diligence).
Upon the occurrence of any one or more of such Events of Default, Landlord
may at its election terminate this Lease or terminate Tenant's right to
possession only, without terminating this Lease. Upon termination of this Lease
or of Tenant's right to possession, Tenant shall immediately surrender
possession and vacate the Premises, and deliver possession thereof to Landlord,
and Landlord or Landlord's agents may immediately or any time thereafter without
notice, re-enter the Premises and remove all persons and all or any property
therefrom, either by any suitable action or proceeding at law or equity or by
force or otherwise, without being liable in indictment, prosecution or damages,
therefor, and repossess and enjoy the Premises, together with the right to
receive all income of, and from, the Premises.
Upon termination of this Lease, Landlord shall be entitled to recover as
liquidated damages, because the parties hereto recognize that as of the date
hereof actual damages are not ascertainable and are of imprecise calculation and
not as a penalty, all Rent and other sums due and payable by Tenant through the
date of termination plus (i) an amount equal to sixty percent (60%) of the Rent
and other sums provided herein to be paid by Tenant for the residue of the Term,
and (ii) the costs of performing any other covenants to be performed by Tenant.
If Landlord elects to terminate Tenant's right to possession only, without
terminating this Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as hereinabove provided, without such entry and
possession terminating this Lease or releasing Tenant, in whole or in part, from
Tenant's obligations to pay the Rent hereunder for the full Term or from any
other obligations of Tenant under this Lease. Landlord shall use commercially
reasonably efforts to relet all or any part of the Premises for such rent and
upon terms as are commercially reasonable (including the right to relet the
Premises for a term greater or lesser than that remaining of the Term of
premises and the right to relet the Premises as a part of a larger area, the
right to change the character or use made of the Premises and the right to grant
concessions of free rent). For the purpose of such reletting, Landlord may
decorate or make any repairs, changes, alterations, or additions in or to the
Premises that may be necessary or desirable. If Landlord is unable to relet the
Premises after using such commercially reasonably efforts to do so, Landlord
shall have the right to terminate this Lease, in which event, Tenant
19
<PAGE> 25
shall pay to Landlord liquidated damages (because the parties hereto recognize
that as of the date hereof actual damages are not ascertainable and are of
imprecise calculation and not as a penalty) equal to sixty percent (60%) of the
Rent, and other sums provided herein to be paid by Tenant for the remainder of
the Term. If the Premises are relet and sufficient sums shall not be realized
from such reletting after payment of all expenses of such decorations, repairs,
changes, alterations, additions and the expenses of repossession and such
reletting, and the collection of the Rent herein provided and other payments
required to be made by Tenant under the provisions of this Lease for the
remainder of the Term of this Lease then, in such event, Tenant shall pay to
Landlord on demand any such deficiency and Tenant agrees that Landlord may file
suit to recover any sums falling due under the terms of this Section from time
to time, and all costs and expenses of Landlord, including attorneys' fees,
incurred in connection with any such suit shall be paid by Tenant.
SECTION 22.2. WAIVERS. Tenant hereby expressly waives, so far as permitted
by law, the service of any notice of intention to re-enter provided for in any
statute, and except as is herein otherwise provided. Tenant for and on behalf of
itself and all persons claiming through or under Tenant, also waives any and all
rights of redemption or re-entry or repossession 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. The terms "enter," "re-enter," "entry" or "re-entry". as used
in this Lease are not restricted to their technical legal meanings.
SECTION 22.3. BANKRUPTCY. If Landlord shall not be permitted to terminate
this Lease, as provided in this Article XXII because of the provisions of the
United States Code relating to Bankruptcy, as amended (the "Bankruptcy Code"),
then Tenant as a debtor-in-possession or any trustee for Tenant agrees promptly,
within no more than sixty (60) days after the filing of the bankruptcy petition,
to assume or reject this Lease. In such event, Tenant or any trustee for Tenant
may only assume this Lease if: (a) it cures or provides adequate assurances that
the trustee will promptly cure any default hereunder; (b) compensates or
provides adequate assurance that Tenant will promptly compensate Landlord of any
actual pecuniary loss to Landlord resulting from Tenant's default; and (c)
provides adequate assurance of performance during the fully stated term hereof
of all of the terms, covenants, and provisions of this Lease to be performed by
Tenant. In no event after the assumption of this Lease shall any then-existing
default remain uncured for a period in excess of the earlier of ten (10) days or
the time period set forth herein. Adequate assurance of performance of this
Lease, as set forth hereinabove, shall include, without limitation, adequate
assurance: (i) of the source of rent reserved hereunder; and (ii) that the
assumption of this Lease will not breach any provision hereunder.
If Tenant assumes this Lease and proposes to assign the same pursuant to
the provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to Tenant, then 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 Section 365(b)(3) of the Bankruptcy Code, shall be given to
Landlord by the Tenant no later than twenty (20) days after receipt by the
Tenant but in any event no later than ten (10) days prior to the date that the
Tenant 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 option, to be exercised by notice to the
Tenant 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.
If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code any and all monies or other considerations
payable or otherwise to be delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of the Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting the Landlord's property under the
preceding sentence not paid or delivered to the Landlord shall be held in trust
for the benefit of Landlord and shall be promptly paid to the Landlord.
20
<PAGE> 26
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be conclusively deemed without further
act or deed to have assumed all of the obligations arising under this Lease on
and after the date of such assignment. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption. Any
such assignee shall be permitted to use the Leased Premises only for the Use.
Nothing contained in this Section shall, in any way, constitute a waiver of
the provisions of Article XVI of this Lease relating to alienation. Tenant shall
not, by virtue of this section, have any further rights relating to assignment
other than those granted in the Bankruptcy Code. Notwithstanding anything in
this Lease to the contrary, all amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated as rent, shall
constitute rent for the purpose of Section 501(b)(6) or any successive section
of the Bankruptcy Code.
ARTICLE XXIII
LANDLORD'S PERFORMANCE OF TENANT'S COVENANTS
--------------------------------------------
SECTION 23.1. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS. In the
event Tenant shall fail to maintain any insurance required to be paid by it
under the terms hereof, or in an Emergency Situation or upon occurrence of an
Event of Default, Landlord may (but shall not be obligated so to do), and
without waiving or releasing Tenant from any obligation of Tenant hereunder,
make any payment or perform any other act which Tenant is obligated to make or
perform under this Lease in such manner and to such extent as Landlord may deem
desirable; and in so doing Landlord shall also have the right to enter upon the
Premises for any purpose reasonably necessary in connection therewith and to pay
or incur any other necessary and incidental costs and expenses, including
reasonable attorneys' fees. All sums so paid and all liabilities so incurred by
Landlord, together with interest thereon at the rate per annum which is the
lesser of (i) the Lease Interest Rate or (ii) the highest rate permitted by law
shall be deemed Additional Rent hereunder and shall be payable to Landlord upon
demand as Additional Rent. Landlord shall use reasonable efforts to give prior
notice (which may be oral) of its performance, if reasonably feasible under the
circumstances. The performance of any such obligation by Landlord shall not
constitute a waiver of Tenant's default in failing to perform the same. Inaction
of Landlord shall never be considered as a waiver of any right accruing to it
pursuant to this Lease. Landlord, in making any payment hereby authorized: (a)
relating to Taxes, may do so according to any bill, statement or estimate,
without inquiry into the validity of any tax, assessment, sale, forfeiture, tax
lien or title or claim thereof; (b) for the discharge, compromise or settlement
of any lien, may do so without inquiry as to the validity or amount of any claim
for lien which may be asserted; or (c) in connection with the completion of
construction of improvements to the Premises or the repair, maintenance or the
payment of operating costs thereof, may do so in such amounts and to such
persons as Landlord reasonably may deem appropriate. Nothing contained herein
shall be construed to require Landlord to advance monies for any purpose.
Landlord shall not in any event be liable for inconvenience, annoyance,
disturbance, loss of business or other damage of Tenant or any other occupant of
the Premises or any part thereof, by reason of making repairs or the performance
of any work on the Premises or on account of bringing materials, supplies and
equipment into or through the Premises during the course thereof and the
obligations of Tenant under this Lease shall not thereby be affected in any
manner. In doing so, however, Landlord shall use reasonable efforts not to
interfere with the normal operation of the Premises. The term "EMERGENCY
SITUATION" shall mean a situation which has caused or is likely to cause bodily
injury to persons, contamination of or physical damage to the Premises or
adjoining property or economic liability or criminal jeopardy to Landlord.
ARTICLE XXIV
EXERCISE OF REMEDIES
--------------------
SECTION 24.1. CUMULATIVE REMEDIES. No remedy contained herein or otherwise
conferred upon or reserved to Landlord, shall be considered exclusive of any
other remedy, but the same shall be cumulative and shall be
21
<PAGE> 27
in addition to every other remedy given herein, now or hereafter existing at law
or in equity or by statute, and every power and remedy given by this Lease to
Landlord may be exercised from time to time and as often as occasion may arise
or as may be deemed expedient. No delay or omission of Landlord to exercise any
right or power arising from any default shall impair any such right or power or
shall be construed to be a waiver of any such default or an acquiescence
therein.
SECTION 24.2. NO WAIVER. No waiver of any breach of any of the covenants of
this Lease shall be construed, taken or held to be a waiver of any other breach,
or a waiver, acquiescence in or consent to any further or succeeding breach of
the same covenant. The acceptance by Landlord of any payment of Rent or other
sums payable hereunder after the termination by Landlord of this Lease or of
Tenant's right to possession hereunder shall not, in the absence of agreement in
writing to the contrary by Landlord, be deemed to restore this Lease or Tenant's
right to possession hereunder, as the case may be, but shall be construed as a
payment on account and not in satisfaction of damages due from Tenant to
Landlord. Receipt of Rent by Landlord, with knowledge of any breach of this
Lease by Tenant or of any default by Tenant in the observance or performance of
any of the conditions or covenants of this Lease, shall not be deemed to be a
waiver of any provision of this Lease.
SECTION 24.3. EQUITABLE RELIEF. In the event of any breach or threatened
breach by Tenant of any of the agreements, 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 right and remedy
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.
ARTICLE XXV
SUBORDINATION TO MORTGAGES
--------------------------
SECTION 25.1. SUBORDINATION. Landlord may execute and deliver a mortgage or
trust deed in the nature of a mortgage (both sometimes hereinafter referred to
as "Mortgage") against the Premises or any portion thereof. This Lease and the
rights of Tenant hereunder, shall automatically, and without the requirement of
the execution of any further documents, be and are hereby made expressly subject
and subordinate at all times to the lien of any Mortgage now or hereafter
encumbering any portion of the Improvements, and to all advances made or
hereafter to be made upon the security thereof; provided, however, the holder of
said Mortgage agrees in writing not to disturb the rights of Tenant under this
Lease so long as Tenant is not in default hereunder. Notwithstanding the
foregoing, Tenant agrees to execute and deliver such instruments subordinating
this Lease to the lien of any such Mortgage as may be requested in writing
Landlord from time to time. Notwithstanding anything to the contrary contained
herein, any mortgagee under a Mortgage may, by notice in writing to the Tenant,
subordinate its Mortgage to this Lease.
SECTION 25.2. MORTGAGE PROTECTION. Tenant agrees to give the holder of any
Mortgage, by registered or certified mail, a copy of any notice of default
served upon the Landlord by Tenant, provided that prior to such notice Tenant
has received notice (by way of service on Tenant of a copy of an assignment of
rents and leases, or otherwise) of the address of such mortgagee and containing
a request therefor. Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, then said
mortgagee shall have an additional thirty (30) days after receipt of notice
thereof within which to cure such default or, if such default cannot be cured
within that time, then such additional time as may be necessary, if, within such
thirty (30) days, any mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure). Such
period of time shall be extended by any period within which such mortgagee is
prevented from commencing or pursuing such foreclosure proceedings by reason of
Landlord's bankruptcy. Until the time allowed as aforesaid for said mortgagee to
cure such defaults has expired without cure, Tenant shall have no right to, and
shall not, terminate this Lease on account of default. This Lease may not be
modified or amended so as to reduce the Rent or shorten the Term, or so as to
adversely affect in any other respect to any material extent the rights of the
Landlord, nor shall this Lease be cancelled or surrendered, without the prior
written consent, in each instance, of the mortgagee.
22
<PAGE> 28
ARTICLE XXVI
INDEMNITY AND WAIVER
--------------------
SECTION 26.1. INDEMNITY. Tenant shall not do or permit any act or thing to
be done or omit to do any act or thing upon the Premises which may subject
Landlord to any liability or responsibility for injury, damage to persons or
property, or to any liability by reason of any violation of applicable laws and
shall exercise such control over the Premises so as to fully protect Landlord
against any such liability. Tenant shall defend, indemnify and save Landlord,
and any official, agent, beneficiary, contractor, director, employee, lessor,
mortgagee, officer, parent, partner, shareholder and trustee of Landlord (each
an "INDEMNIFIED PARTY") representatives, successors and assigns harmless from
and against any and all liabilities, suits, judgments, settlements, obligations,
fines, damages, penalties, claims, costs, charges and expenses, including,
without limitation, engineers', architects' and attorneys' fees, court costs and
disbursements, which may be imposed upon or incurred by or asserted against any
Indemnified Party by reason of any of the following occurring during or after
(but attributable to a period of time falling within) the Term:
A. any demolition or razing or construction of any improvements
or any other work or thing done in, on or about the Premises or any part
thereof by Tenant or any member of the Tenant Group (defined below),
including any claim that such work constitutes "public works";
B. any use, nonuse, possession, occupation, alteration, repair,
condition, operation, maintenance or management of the Premises or any part
by Tenant or any member of the Tenant Group;
C. any act or failure to act on the part of Tenant or any
member of the Tenant Group;
D. any accident, injury (including death) or damage to any
person or property occurring in, on or about the Premises or any part
thereof or in, on or about any tunnel, creek, ditch, detention area,
sidewalk, curb or vault adjacent thereto as a result of the act or neglect
of Tenant or any member of the Tenant Group;
E. any failure to perform or comply with any of the covenants,
agreements, terms or conditions in this Lease on Tenant's part to be
performed or complied with (other than the payment of money);
F. any lien or claim which may be alleged to have arisen
against or on the Premises, or any lien or claim which may be alleged to
have arisen out of this Lease and created or permitted to be created by
Tenant or any member of the Tenant Group against any assets of Landlord, or
any liability which may be asserted against Landlord with respect thereto;
G. any failure on the part of Tenant to keep, observe and
perform any of the terms, covenants, agreements, provisions, conditions or
limitations contained in the contracts and agreements affecting the
Premises on Tenant's part to be kept, observed or performed;
H. any contest permitted pursuant to the provisions of this
Lease; and
I. any failure by Tenant to comply with its obligations under
Section 11.1 or arising out of or relating to Tenant's self insurance
under Section 9.4 hereof.
No agreement or covenant of Tenant in this Section 26.1 shall be deemed to
exempt Landlord from, and Tenant's obligations under this Section 26.1 shall not
include liability or damages for injury to persons or damage to property caused
by or resulting from the negligence of Landlord, its agents or employees, in the
operation or maintenance of the Project.
23
<PAGE> 29
The obligations of Tenant under this Section 26.1 shall not be affected in any
way by the absence in any case of covering insurance or by the failure or
refusal of any insurance carrier to perform any obligation on its part under
insurance policies affecting the Premises or any part thereof.
SECTION 26.2. WAIVER OF CLAIMS. Subject to Section 9.3 hereof, and except
to the extent resulting from the negligence of Landlord, its agents, employees
and contractors, Tenant waives all claims it may have against Landlord and
Landlord's agents for damage or injury to person or property sustained by Tenant
or any persons claiming through Tenant or by any occupant of the Premises, or
by any other person, resulting from any part of the Premises becoming out of
repair, or resulting from any accident on or about the Premises or resulting
directly or indirectly from any act or neglect of any person, including Landlord
to the extent permitted by law. This Section 26.2. shall include, but not by way
of limitation, damage caused by water, snow, frost, steam, excessive heat or
cold, sewage, gas, odors, or noise, or caused by bursting or leaking pipes. or
plumbing fixtures, and shall apply equally whether any such damage results from
the act or neglect of Tenant or of any other person, including Landlord to the
extent permitted by law, and whether such damage be caused or result from
anything or circumstance above mentioned or referred to, or to any other thing
or circumstance whether of a like nature or of a wholly different nature. All
Tenant's Equipment and other personal property belonging to Tenant or any
occupant of the Premises that is in or on any part of the Premises shall be
there at the risk of Tenant or of such other person only, and Landlord shall not
be liable for any damage thereto or for the theft or misappropriation thereof.
ARTICLE XXVII
SURRENDER
SECTION 27.1. CONDITION. Upon the termination of this Lease whether by
forfeiture, lapse of time or otherwise, or upon the termination of Tenant's
right to possession of the Premises, Tenant will at once surrender and deliver
up the Premises to Landlord, broom clean, in good order, condition and repair,
reasonable wear and tear excepted. "Broom clean" means free from all debris,
dirt, rubbish, personal property of Tenant, oil, grease, tire tracks or other
substances, inside and outside of the Improvements and on the grounds comprising
the Premises. Any damage caused by removal of Tenant from the Premises,
including any damages caused by removal of Tenant's Equipment as defined above,
shall be repaired and paid for by Tenant prior to the expiration of the Term.
SECTION 27.2. REMOVAL OF TENANT'S EQUIPMENT. Upon the termination of this
Lease by lapse of time, or otherwise, Tenant may remove Tenant's Equipment
provided, however, that Tenant shall repair any injury or damage to the Premises
which may result from such removal. If Tenant does not remove Tenant's Equipment
from the Premises prior to the end of the Term, however ended, Landlord may, at
its I option, remove the same and deliver the same to any other place of
business of Tenant or warehouse the same, and Tenant shall pay the cost of such
removal (including the repair of any injury or damage to the Premises resulting
from such removal), delivery and warehousing to Landlord on demand, or Landlord
may treat tenant's equipment as having been conveyed to Landlord with this Lease
as a Bill of Sale, without further payment or credit by Landlord to Tenant.
SECTION 27.3. HOLDOVER. If Tenant retains possession of the Premises or any
part thereof after the termination of the Term, by lapse of time and otherwise,
then Tenant shall pay to Landlord monthly rent, at double the rate payable for
the month immediately preceding said holding over (including increases for
additional rent which Landlord may reasonably estimate), computed on a per-month
basis, for each month or part thereof (without reduction for any such partial
month) that Tenant thus remains in possession, and in addition thereto, Tenant
shall pay Landlord all damages, consequential as well as direct, sustained by
reason of Tenant's retention of possession. Alternatively, at the election of
Landlord expressed in a written notice to Tenant and not otherwise, such
retention of possession shall constitute a renewal of this Lease for one (1)
year, at a rental equal to one hundred twenty percent (120%) of the Rent during
the previous year. The provisions of this paragraph do not exclude the
Landlord's rights of re-entry or any other right hereunder. Any such extension
or renewal shall be subject to all other terms and conditions herein contained.
24
<PAGE> 30
ARTICLE XXVIII
COVENANT OF QUIET ENJOYMENT
---------------------------
SECTION 28.1. COVENANT OF QUIET ENJOYMENT. Landlord covenants that Tenant,
on paying the Rent and all other charges payable by Tenant hereunder, and on
keeping, observing and performing all the other terms, covenants, conditions,
provisions and agreements herein contained on the part of Tenant to be kept,
observed and performed, all of which obligations of Tenant are independent of
Landlord's obligations hereunder, shall, during the Term, peaceably and quietly
have, hold and enjoy the Premises subject to the terms, covenants, conditions,
provisions and agreement hereof free from hindrance by Landlord or any person
claiming by, through or under Landlord.
ARTICLE XXIX
NO RECORDING
------------
SECTION 29.1. SHORT FORM OF LEASE. This Lease shall not be recorded.
ARTICLE XXX
NOTICES
-------
SECTION 30.1. NOTICES. All notices, consents, approvals to or demands upon
or by Landlord or Tenant desired or required to be given under the provisions
hereof, shall be in writing. Any notices or demands from Landlord to Tenant
shall be deemed to have been duly and sufficiently given if a copy thereof has
been personally served, forwarded by expedited messenger or recognized overnight
courier service with evidence of delivery or mailed by United States registered
or certified mail in an envelope properly stamped and addressed to Tenant at
Tenant's Mailing Address, or at such other address as Tenant may theretofore
have furnished by written notice to Landlord. Any notices or demands from Tenant
to Landlord shall be deemed to have been duly and sufficiently given if
forwarded by expedited messenger or recognized overnight courier service with
evidence of delivery or mailed by United States registered or certified mail in
an envelope properly stamped and addressed to Landlord at Landlord's Mailing
Address, with a copy to Mark S. Richmond, Katz Randall & Weinberg, 333 West
Wacker Drive, Suite 1800, Chicago, Illinois 60606, or at such other address as
Landlord may theretofore have furnished by written notice to Tenant. The
effective date of such notice shall be the date of actual delivery, except that
if delivery is refused, the effective date of notice shall be the date delivery
is refused.
ARTICLE XXXI
COVENANTS RUN WITH LAND
-----------------------
SECTION 31.1. COVENANTS. All of the covenants, agreements, conditions and
undertakings in this Lease contained shall extend and inure to and be binding
upon the heirs, executors, administrators, successors and assigns of the
respective parties hereto, the same as if they were in every case specifically
named, and shall be construed as covenants running with the Land, and wherever
in this Lease reference is made to either of the parties hereto, it shall be
held to include and apply to, wherever applicable, the heirs, executors,
administrators, successors and assigns of such party. Nothing herein contained
shall be construed to grant or confer upon any person or persons, firm,
corporation or governmental authority, other than the parties hereto, their
heirs, executors, administrators, successors and assigns, any right, claim or
privilege by virtue of any covenant, agreement, condition or undertaking in this
Lease contained.
SECTION 31.2. RELEASE OF LANDLORD. The term "Landlord" as used in this
Lease, so far as covenants or obligations on the part of Landlord are concerned,
shall be limited to mean and include only the owner or owners at the
25
<PAGE> 31
time in question of title to the Premises, and in the event of any transfer or
transfers of the title, Landlord herein named (and in the case of any subsequent
transfers or conveyances, the then grantor) shall be automatically freed and
relieved, from and after the date of such transfer or conveyance, of all
personal liability as respects the performance of any covenants or obligations
on the part of Landlord contained in this Lease thereafter to be performed;
provided that any funds in the hands of such Landlord or the then grantor at the
time of such transfer, in which Tenant has an interest, shall be turned over to
the grantee.
ARTICLE XXXII
ENVIRONMENTAL MATTERS
---------------------
SECTION 32.1. DEFINED TERMS.
A. "HAZARDOUS MATERIAL" shall include but shall not be limited
to any substance, material, or waste that is regulated by any federal,
state, or local governmental authority because of toxic, flammable,
explosive, corrosive, reactive, radioactive or other properties that may be
hazardous to human health or the environment, including without limitation
asbestos and asbestos-containing materials, radon, petroleum and petroleum
products, urea formaldehyde foam insulation, methane, lead-based paint,
polychlorinated biphenyl compounds, hydrocarbons or like substances and
their additives or constituents, pesticides, agricultural chemicals, and
any other special, toxic, or hazardous substances, materials, or wastes of
any kind, including without limitation those now or hereafter defined,
determined, or identified as "hazardous substances," "hazardous materials,"
"toxic substances," or "hazardous wastes" in any Environmental Law.
B. "ENVIRONMENTAL LAW" shall mean any federal, state, or local
law, statute, ordinance, code, rule, regulation, policy, common law,
license, authorization, decision, order, or injunction which pertains to
health, safety, any Hazardous Material, or the environment (including but
not limited to ground, air, water, or noise pollution or contamination, and
underground or abovegroundtanks) and shall include, without limitation, the
Resource Conservation and Recovery Act, 42 U.S.C. 86901 et seq., as amended
by the Hazardous and Solid Waste Amendments of 1984; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
89601 et seq., as amended by the Superfund Amendments and Reauthorization
Act of 1986; the Hazardous Materials Transportation Act, 49 U.S.C. 81801 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. 81251 et seq., the
Clean Air Act, 42 U.S.C. 87401 et seq.,; the Toxic Substances Control Act,
15 U.S.C. 82601 et seq.,; the Safe Drinking Water Act, 42 U.S.C. ss. 300f
et seq., the Illinois Environmental Protection Act, 415 ILCS 4/1 et seq.;
the Municipal Code of the City of Chicago; the Rivers and Harbors Act, (33
U.S.C. 8401 et seq.); the Emergency Planning and Community Right-to-Know
Act of 1986,42 U.S.C. 11001 et seq. ("EPCRA"), the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. 136 to 136y; the Oil Pollution Act
of 1990, 33 U.S.C. 2701 et seq.; and the Occupational Safety and Health
Act, 29 U.S.C. 651 et seq.; and any other federal, state, or local
environmental requirements, together with all rules, regulations, orders,
and decrees now or hereafter promulgated under any of the foregoing, as any
of the foregoing now exist or may be changed or amended or come into effect
in the future.
C. "ENVIRONMENTAL CLAIM" shall mean and include any demand,
notice of violation, inquiry, cause of action, proceeding, or suit for
damages (including reasonable attorneys', consultants', and experts' fees,
costs or expenses), losses, injuries to person or property, damages to
natural resources, fines, penalties, interest, cost recovery, compensation,
or contribution resulting from or in any way arising in connection with any
Hazardous Material or any Environmental Law.
D. "PRE-EXISTING CONDITION" shall mean the presence of any
Hazardous Material on the Premises, to the extent such Hazardous Material
was not introduced onto the Premises after the Commencement Date.
26
<PAGE> 32
E. "ENVIRONMENTAL CONDITION" shall mean (i) the presence on
the Premises of one or more underground storage tanks or (ii) the existence
of any Hazardous Material on the Premises, other than a Pre-Existing
Condition,
(a) in violation of or requiring cleanup under any
Environmental Law or the provisions of this Article XXXII, or
(b) in concentrations or at levels exceeding applicable
federal, state, or local standards for soil, groundwater, or
waste on residential properties,
either of which subjects Landlord to liability for any Environmental Claim
or which must be remediated to prevent Landlord from incurring loss of any
kind.
F. "ENVIRONMENTAL REMEDIATION" shall mean any investigation,
cleanup, removal, containment, remediation, or other action relating to an
Environmental Condition (i) required pursuant to any Environmental Law, or
(ii) necessary to prevent Landlord from incurring, or relieve Landlord
from, loss of any kind as a result of an Environmental Claim.
G. "REMEDIATING PARTY" shall mean the party which has elected
(or is deemed to have elected) to perform any Environmental Remediation.
H. "TENANT GROUP" shall mean Tenant and its officers,
directors, shareholders, employees, contractors, licensees, invitees,
agents, successors and assigns and any person or entity acting by, through
or under any of the foregoing.
SECTION 32.2. TENANT'S COVENANTS WITH RESPECT TO ENVIRONMENTAL MATTERS.
During the Term, Tenant, at its sole cost and expense, shall:
A. comply with all Environmental Laws relating to the use and
operation of the Premises;
B. keep the Premises free of any Hazardous Material;
C. not exacerbate a Pre-Existing Condition;
D. upon the discovery of an Environmental Condition:
(1) promptly, but not later than three (3) business days
after the discovery of the Environmental Condition, notify
Landlord of the Environmental Condition;
(2) furnish a letter of credit, personal guaranty, escrow
of funds, or other security reasonably acceptable to Landlord to
secure performance of Environmental Remediation and to assure
Landlord that all necessary funds are readily available to
Landlord to pay the costs and expenses of Environmental
Remediation;
(3) prior to commencement of any Environmental Remediation,
submit a proposed scope of work for the Environmental
Remediation, together with a timetable and a cost estimate, to
Landlord for review and approval;
(4) after obtaining Landlord's approval, diligently
perform the approved Environmental Remediation;
27
<PAGE> 33
(5) submit to Landlord in a timely manner for Landlord's
review and comment the documentation and information required by
Sections 32.6 and 32.7 of this Lease relating to each phase of
the Environmental Remediation;
(6) comply with applicable release reporting requirements
and provide Landlord with any information necessary for Landlord
to comply with Environmental Law; and
(7) obtain a so-called "no further action letter" or other
acknowledgment from the federal, state, or local governmental
agency with jurisdiction over the Environmental Condition that
the Premises have been fully remediated without reliance on
institutional controls (including but not limited to deed
restrictions) or engineered barriers;
E. not install or operate any above or below ground tank,
sump, pit, pond, lagoon, or other storage or treatment vessel or device on
the Premises without first obtaining Landlord's prior written consent;
F. not handle, use, generate, treat, dispose of, or permit
the use, handling, generation, treatment, storage, or disposal of any
Hazardous Material in, on, under, around, or above the Premises at any time
during the Term;
G. not use any above-ground tank (including barrels and drums),
of any size within or without the Premises, except (i) in compliance with
all Environmental Laws, and (ii) if secondary containment approved by
Landlord is provided. Empty tanks, barrels and drums shall be presumed to
have one (1) inch of product remaining when declared empty.
SECTION 32.3. CONDUCT OF TENANT. If Tenant, with the prior written
authorization of Landlord, which authorization may be granted or denied by
Landlord in its sole and absolute discretion, generates, uses, transports,
stores, treats, or disposes of any Hazardous Material:
A. Tenant shall, at its own cost and expense, comply with all
Environmental Laws relating to any Hazardous Material;
B. Tenant shall (i) not dispose of any Hazardous Material in
dumpsters or trash containers or at any other location at the Premises;
(ii) not discharge any Hazardous Material into drains or sewers; (iii) not
cause or allow the release, discharge, emission, or run-off of any
Hazardous Material to air, surface waters, the land, or ground water,
whether directly or indirectly; (iv) at Tenant's own cost and expense,
arrange for the lawful transportation and off-site disposal of all
Hazardous Materials generated by Tenant; (v) provide secondary containment
around all Hazardous Material storage containers, storage facilities, and
above-ground storage tanks; (vi) conduct all necessary environmental
inspections, including but not limited to asbestos inspections prior to any
renovation or demolition as required by 40 CFR Part 61, and provide copies
of all reports associated with such inspections to Landlord; (vii) comply
with all reporting requirements under any federal, state, or local
ordinance, statute, or regulation, including but not limited to toxics
inventory reporting under EPCRA, the provisions of 40 CFR Part 61, or
various regulations controlling the emissions of volatile organic
compounds, and Tenant shall provide copies of all such reports and
notifications to Landlord; and (viii) use only highly skilled people
acceptable to Landlord to address all environmental issues associated with
the Premises, and ensure that such people and all employees of the Tenant
shall receive all training or certification required under any federal,
state, or local legal requirement specifically mentioned or alluded to in
Section 32.1 of this Lease;
28
<PAGE> 34
C. Tenant shall promptly provide Landlord with copies of all
communications, permits, or agreements with any governmental authority or
agency (federal, state, or local) or any private entity relating in any way
to the violation or alleged violation of any Environmental Laws or to any
violation of Tenant's obligations under subparagraph (B) above;
D. Landlord and Landlord's agents and employees shall have the
right to enter the Premises and/or conduct appropriate tests for the
purpose of ascertaining that Tenant complies with all applicable laws,
rules or permits relating in any way to the presence of any Hazardous
Materials on the Premises; and
E. Upon the written request of Landlord no more frequently
than once every year, or on any other occasion in the event that Landlord
has reason to believe an environmental problem exists at the Premises,
Tenant shall provide Landlord the results of appropriate tests of air,
water, and soil to demonstrate (i) that Tenant is in compliance with all
applicable laws, rules or permits relating in any way to the presence of
any Hazardous Material on the Premises and (ii) the lack of any releases,
discharges, or emissions.
If the presence, release, threat of release, or placement of any Hazardous
Material on or in the Premises occurs or is caused in whole or in part during
the Term of this Lease, or the generation, transportation, storage, treatment,
or disposal of any Hazardous Material at the Premises occurs or is caused in
whole or in part during the Term of this Lease, and such gives rise to liability
(including, but not limited to, a response action, remedial action, or removal
action) under any Environmental Law or common law theory, including but not
limited to nuisance, strict liability, negligence and trespass, Tenant shall
promptly take any and all action necessary to clean up the Premises and mitigate
exposure to liability arising from the Hazardous Material, whether or not
required by law.
SECTION 32.4. EXACERBATION. If Tenant exacerbates a Pre-Existing Condition
(as a result of Tenant's investigative or remedial activities or otherwise)
during the Lease Term, the provisions of this Article XXX shall apply to such
exacerbation of the Pre-Existing Condition as if it were an Environmental
Condition, and Tenant shall perform Environmental Remediation as to such
exacerbation. Tenant shall be responsible for all fines and penalties caused by
Tenant or to the extent exacerbated by Tenant at any time during the Lease Term.
SECTION 32.5. RIGHTS OF INSPECTION. Landlord and their respective agents
and representatives shall have a right of entry and access to the Premises at
any time in Landlord's discretion for the purposes of (i) inspecting the
documentation relating to Hazardous Materials or environmental matters
maintained by Tenant or occupant of the Premises; (ii) ascertaining the nature
of the activities being conducted on the Premises and investigating whether
Tenant is in compliance with its obligations under Article XXXII of this Lease;
and (iii) determining the type, kind, and quantity of all products, materials,
and substances brought onto the Premises, or made or produced thereon. Landlord
and its agents and representatives shall have the right to take samples in
quantities sufficient for analysis of all products, materials, and substances
present on the Premises including, but not limited to, samples, products,
materials, or substances brought onto or made or produced on the Premises by
Tenant or occupant of the Premises or their respective agents, employees,
contractors or invitees and shall also have the right to conduct other tests and
studies as may be reasonably determined by Landlord to be appropriate in order
to investigate whether Tenant is in compliance with its obligations under
Article XXXII.
SECTION 32.6. COPIES OF NOTICES. During the term of this Lease, Tenant and
Landlord shall each provide the other promptly with copies of all summons,
citations, directives, information inquiries or requests, notices of potential
responsibility, notices of violation or deficiency, orders or decrees,
Environmental Claims, complaints, investigations, judgments, letters, notices of
environmental liens or response actions in progress, and other communications,
written or oral, actual or threatened, received in the case of Tenant, by Tenant
or occupant of the Premises, or in the case of Landlord, by Landlord, from the
United States Environmental Protection Agency, Occupational Safety and Health
Administration, Illinois Environmental Protection Agency, Illinois Office of the
State Fire Marshall, Chicago Department of the Environment, or other federal,
state, or local agency or authority, or any other entity or individual
(including both governmental and non-governmental entities and individuals),
concerning (a) any
29
<PAGE> 35
actual or alleged release of any Hazardous Material on, to, or from the
Premises; (b) the imposition of any lien on the Premises relating to any
Hazardous Material; (c) any actual or alleged violation of or responsibility
under Environmental Laws; or (d) any actual or alleged liability under any
theory of common law tort or toxic tort, including without limitation,
negligence, trespass, nuisance, strict liability, or ultrahazardous activity.
SECTION 32.7. TESTS AND REPORTS.
A. Upon written request by Landlord, Tenant shall provide
Landlord, at Tenant's expense, with (i) copies of all environmental reports
and tests prepared or obtained by or for Tenant or occupant of the
Premises; (ii) copies of transportation and disposal contracts (and related
manifests, schedules, reports, and other information) entered into or
obtained by Tenant with respect to any Hazardous Material; (iii) copies of
any permits issued to Tenant under Environmental Laws with respect to the
Premises; (iv) prior to filing, copies of any and all reports,
notifications, and other filings to be made by Tenant or occupant of the
Premises to any federal, state, or local environmental authorities or
agencies, and after filing, copies of such filings; and (v) any other
relevant documents and information with respect to environmental matters
relating to the Premises. Tenant shall be obligated to provide such
documentation only to the extent that the documentation is within Tenant's
possession or control.
B. In addition, if an Environmental Claim is made or
threatened, or if a default shall have occurred under the Lease, Landlord
shall have the right, but not the duty, to enter upon the Premises and
conduct an environmental assessment of the Premises, including but not
limited to a visual site inspection, review of records pertaining to the
site, and interviews of Tenant's representatives or others concerning
the site use and history and other matters. The investigation may also
include reasonable subsurface or other invasive investigation of the
Premises, including but not limited to soil borings and sampling of site
soil and ground or surface water for laboratory analysis, as may be
recommended by the Landlord's consultant (discussed below) as part of its
inspection of the Premises or based upon such other reasonable evidence of
Environmental Conditions warranting such subsurface or other invasive
investigation. Landlord shall have the right, but not the duty, to retain
any independent professional consultant to conduct any such environmental
assessment; provided, however, that Landlord agrees to limit, in the
absence of an Environmental Claim or default under this Article XXXII, the
number of such environmental assessments to one (1) per Lease Year for the
Lease Term. Tenant will cooperate with the Landlord's consultant and will
supply to the consultant, promptly upon request, any information
reasonably requested by Landlord to facilitate the completion of the
environmental assessment. Landlord and its designees are hereby granted
access to the Premises at any time or times, upon reasonable notice (which
may be written or oral) to perform such environmental assessment. In
exercising its right, Landlord shall use its reasonable efforts to
minimize disruption of operations at the Premises. Any costs associated
with performance of the environmental assessment, including but not
limited to the consultant fees and restoration of any property damaged by
such environmental assessment, shall be paid by Landlord unless such
investigation discloses an Environmental Condition, in which case Tenant
shall pay such costs.
C. Tenant shall pay costs incurred by Landlord (including
consultants' fees, costs and expenses) to review and comment on all reports
and other documentation and information required by Sections 32.5 and 32.6,
and to monitor the performance of any Environmental Remediation performed
by Tenant.
SECTION 32.8. INDEMNIFICATION. Tenant shall reimburse, defend with counsel
chosen by Landlord, indemnify, and hold Landlord and any other Indemnified Party
free and harmless from and against any and all Environmental Claims, response
costs, losses, liabilities, damages, costs, and expenses, including without
limitation loss of rental income, loss due to business interruption, and
reasonable attorneys' and consultants' fees, costs and expenses arising out of
or in any way connected with any or all of the following:
30
<PAGE> 36
A. any Hazardous Material (other than a Pre-Existing Condition)
which, at any time during the Term, is or was actually or allegedly
generated, stored, treated, released, disposed of, or otherwise located on
or at the Premises as a result of the act or omission of Tenant or any
member of the Tenant Group (regardless of the location at which such
Hazardous Material is now or may in the future be located or disposed of),
including, but not limited to any and all (i) liabilities under any common
law theory of tort, nuisance, strict liability, ultrahazardous activity,
negligence, or otherwise based upon, resulting from or in connection with
any Hazardous Material; (ii) obligations to take response, cleanup, or
corrective action pursuant to any Environmental Laws; and (iii) the costs
and expenses of investigation or remediation in connection with the
decontamination, removal, transportation, incineration, or disposal of any
of the foregoing; and
B. any actual or alleged illness, disability, injury, or death
of any person, in any manner arising out of or allegedly arising out of
exposure to any Hazardous Material or other substances or conditions
present at the Premises as a result of the act or omission of Tenant or any
member of the Tenant Group (including, but not limited to, ownership,
operation, and disposal of any equipment which generates, creates, or uses
electromagnetic files, x-rays, other forms of radiation and radioactive
materials), regardless of when any such illness, disability, injury, or
death shall have occurred or been incurred or manifested itself and
C. any actual or alleged failure of Tenant or any member of the
Tenant Group at any time and from time to time to comply with all
applicable Environmental Laws or any permit issued thereunder;
D. any failure by Tenant to comply with any obligation under
this Article XXXII relating to an Environmental Condition for which Tenant
is Remediating Party;
E. Tenant's failure to provide any information, make any
submission, and take any step required by any relevant governmental
authorities;
F. the imposition of any lien for damages caused by, or the
recovery of any costs for, the remediation or cleanup of any Hazardous
Material as a result of events that took place during the Term of this
Lease as a result of the act or omission of Tenant or any member of the
Tenant Group;
G. costs of removal of any and all Hazardous Materials from
all or any portion of the Premises, which Hazardous Materials came to be
present at the Premises during the Term of this Lease as a result of the
act or omission of Tenant or any member of the Tenant Group;
H. costs incurred to comply, in connection with all or any
portion of the Premises, with all governmental requirements with respect to
any Hazardous Material on, in, under or affecting the Premises, which
Hazardous Material came to be present at the Premises during the Term of
this Lease as a result of the act or omission of Tenant or any member of
the Tenant Group;
I. any spills, charges, leaks, escapes, releases, dumping,
transportation, storage, treatment, or disposal of any Hazardous Material
which occur during the Term of this Lease, but only to the extent that such
Hazardous Material originated from or were or are located on the Premises.
The obligations of Tenant under this Section 32.8 shall survive any
termination or expiration of this Lease.
SECTION 32.9. TENANT ACKNOWLEDGMENTS WITH RESPECT TO ENVIRONMENTAL
MATTERS. Tenant acknowledges that the Premises are being leased in their present
"as is" condition. Tenant further acknowledges that Landlord has made no
representation whatsoever regarding any Hazardous Material on or about the
Premises.
31
<PAGE> 37
SECTION 32.10. NO LIABILITY OF LANDLORD.
A. Landlord shall not have any liability to Tenant or any of
its employees, agents, shareholders, officers or directors, or any other
persons as a result of any Hazardous Material now or hereafter located on
the Premises.
B. Tenant hereby waives and releases Landlord from all
Environmental Claims arising from or relating to Pre-Existing Conditions.
ARTICLE XXXIII
SECURITY DEPOSIT
----------------
SECTION 33.1. SECURITY DEPOSIT. Tenant agrees to deposit with Landlord,
upon the execution of this Lease, the Security Deposit as security for the full
and faithful performance by Tenant of each and every term, provision, covenant
and condition of this Lease. If Tenant defaults in respect to any of the terms,
provisions, covenants and conditions of this Lease including, but not limited
to, payment of all rental and other sums required to be paid by Tenant
hereunder, Landlord may use, apply or retain the whole or any part of the
security so deposited for the payment of such rent in default, for any sum which
Landlord may expend or be required to expend by reason of Tenant's default
including, without limitation, any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency shall have accrued before or after
re-entry by Landlord. If any of the security deposit shall be so used, applied
or retained by Landlord at any time or from time to time, Tenant shall promptly,
in each such instance, on written demand therefor by Landlord, pay to Landlord
such additional sums as may be necessary to restore the security deposit to the
original amount set forth in the first sentence of this section. If Tenant shall
fully and faithfully comply with all the terms, provisions, covenants and
conditions of this Lease, the security deposit, or the balance thereof, shall be
returned to Tenant after the following: (a) the time fixed as the expiration of
the Term of this Lease; (b) the removal of Tenant from the Premises; (c) the
surrender of the Premises by Tenant to Landlord in accordance with this Lease;
and (d) final determination of all amounts payable by Tenant hereunder and
payment of same. Except as otherwise required by law, Tenant shall be entitled
to interest at the rate of three percent (3%) per annum throughout the Term on
the aforesaid security deposit only in the event there is no claim against the
Security Deposit during the Term. In the absence of evidence satisfactory to
Landlord of an assignment of the right to receive the security deposit or the
remaining balance thereof, Landlord may return the security deposit to the
original Tenant, regardless of one or more assignments of this Lease.
ARTICLE XXXIV
TENANT'S WORK
-------------
SECTION 34.1. TENANT'S WORK. Tenant shall have the right to perform
alterations to the Premises (the "Tenant's Work") as set forth on EXHIBIT "C"
attached hereto and by this reference made a part hereof, upon the terms and
conditions contained herein. Tenant's Work shall be completed in compliance with
all applicable governmental laws, rules, statutes, ordinances and regulations,
in a good workmanlike and lien free manner in accordance with the approved
Tenant's Plans. Only new and good grades of material shall be used. Tenant's
Work shall comply with all applicable insurance requirements, all laws,
statutes, ordinances and regulations of the City of Berkeley and the State of
Illinois. The provisions of Article XIII hereof to the extent not inconsistent
with this Article XXXIV shall apply to the performance of the Tenant's Work by
Tenant.
SECTION 34.2. PLANS. The Tenant shall, at Tenant's sole cost and expense
(subject to the Tenant's Allowance), cause to be prepared and submitted to the
Landlord at such time as Tenant desires, plans and specifications ("Tenant's
Plans") for the Tenant Work, including, but not limited to, all space plans,
working drawings, mechanical
32
<PAGE> 38
and engineering drawings disclosing all construction to be performed. Landlord
shall have a period of five (5) business days after each submission of Tenant's
Plans in which to approve or disapprove Tenant's Plans. Landlord's disapproval
of any portion of Tenant's Plans shall note the specific items not approved and
the reasons therefor. In the event Tenant's Plans are disapproved, the Tenant
may revise and resubmit Tenant's Plans expeditiously and Landlord shall review
the same and notify the Tenant of its approval or disapproval within five (5)
business days thereafter in the same manner as required for the initial
submittal.
SECTION 34.3. TENANT ALLOWANCE. Landlord shall pay or reimburse Tenant for
the costs of completing Tenant's Work up to a maximum amount of $358,000.00
("Tenant's Allowance"). The cost of all work necessary to complete Tenant's Work
(including, but not limited to, all labor, material and permits) and to pay
architectural fees, permit fees and engineering fees shall, in excess of
Tenant's Allowance, shall be the responsibility of the Tenant. The Tenant's
Allowance shall be paid by the Landlord to the contractors, subcontractors and
material suppliers or to the extent Tenant has previously paid such parties, to
reimburse Tenant within thirty (30) days of Tenant's presentation of
documentation ("Draw Documents") reasonably satisfactory to Landlord evidencing
(i) the amounts due, in relation to Tenant's Work, to the Consultant and any
subcontractors and materialmen, including, but not limited to a contractor's
sworn statement and lien waivers covering all work performed as of the
applicable disbursement date, covering all Tenant's Work for which the Tenant is
requesting payment; (ii) a sworn statement from Tenant setting forth in detail
all contractors and material suppliers with whom Tenant has contracted, their
addresses, work or materials to be furnished, amounts of contracts, amounts paid
to date, amounts of current payments and balances due; and (iii) a report by the
architect who prepared Tenant's Plans certifying that Tenant's Work has been
completed and materials are in place as indicated by the request for payment by
Tenant; (iv) an endorsement to Landlord's owner's policy of title insurance
showing no mechanic's liens; and (v) a certificate of occupancy from the City
of Berkeley, Illinois to the extent required with respect to the applicable
work. A Tenant Allowance draw shall never exceed, in the aggregate,
the remaining unpaid amount of the Tenant's Allowance. In the event that in
Landlord's reasonable opinion, the cost to complete the Tenant's Work exceeds
the Tenant's Allowance, Landlord shall not have any obligation to disburse any
portion of the Tenant's Allowance until Tenant has paid such portion of the cost
of the Tenant's Work (and provided the Draw Documents with respect thereto) so
that the remaining cost of the Tenant's Work is equal to the remainder of the
Tenant's Allowance.
SECTION 34.4. GOVERNMENTAL APPROVALS. Tenant, at its sole cost and expense,
shall file all necessary plans with the appropriate governmental authorities
having jurisdiction over Tenant's Work. Tenant shall be responsible for
obtaining all permits, authorizations and approvals necessary to perform and
complete Tenant's Work. Tenant shall not commence Tenant's Work until the
required permits authorizations and approvals for such work are obtained and
delivered to Landlord.
SECTION 34.5. LANDLORD ACCESS TO TENANT WORK. The Landlord and its agents
and their representatives shall at all times have access to the Tenant's Work
wherever it is in preparation or progress for the purpose of observing and
reviewing the same; provided, however, Landlord shall not unreasonably interfere
with the performance of Tenant's Work in connection with any such observations
or reviews. Tenant and its contractors shall provide reasonable facilities for
such access and for inspection.
SECTION 34.6. SAFETY. Tenant shall assume responsibility for the prevention
of accidents to its agents and employees and shall take all reasonable safety
precautions with respect to the work to be performed and shall comply with all
reasonable safety measures initiated by the Landlord and with all applicable
laws, ordinances, rules, regulations and orders applicable to the Tenant's Work
including those of any public authority for the safety of persons or property.
Tenant shall report to Landlord any injury to any of its agents or employees and
shall furnish Landlord a copy of the accident report filed with its insurance
carrier within three (3) days of its occurrence.
SECTION 34.7. COMPLETION. Upon completion of Tenant's Work, Tenant shall
furnish Landlord with a copy of the Tenant's Plans (together with any and all
change orders), final waivers of lien and contractors affidavits for
33
<PAGE> 39
Tenant's Work, a detailed breakdown of the costs of Tenant's Work and evidence
of payment reasonably satisfactory to Landlord, and an occupancy permit for the
demised premises to the extent issued by the City of Berkeley, Illinois.
ARTICLE XXXV
MISCELLANEOUS
-------------
SECTION 35.1. CAPTIONS. The captions of this Lease are for convenience only
and are not to be construed as part of this Lease and shall not be construed as
defining or limiting in any way the scope or intent of the provisions hereof.
SECTION 35.2. SEVERABILITY. If any covenant, agreement or condition of this
Lease or the application thereof to any person, firm or corporation or to any
circumstances, shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such covenant, agreement or condition to
persons, firms or corporations or to circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby. Each covenant,
agreement or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
SECTION 35.3. APPLICABLE LAW. This Lease shall be construed and enforced in
accordance with the laws of the state where the Premises are located.
SECTION 35.4. AMENDMENTS IN WRITING. None of the covenants, terms or
conditions of this Lease, to be kept and performed by either party, shall in any
manner be altered, waived, modified, changed or abandoned, except by a written
instrument, duly signed, acknowledged and delivered by the other party.
SECTION 35.5. RELATIONSHIP OF PARTIES. Nothing contained herein shall be
deemed or construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent or of partnership, or of joint venture
by the parties hereto, it being understood and agreed that no provision
contained in this Lease nor any acts of the parties hereto shall be deemed to
create any relationship other than the relationship of Landlord and Tenant.
SECTION 35.6. BROKERAGE. Tenant warrants that it has no dealings with any
real estate broker or agent in connection with this lease, and Tenant covenants
to pay, hold harmless and indemnify Landlord from and against any and all cost,
expense or liability for any compensation, commissions and charges claimed by
any other broker or other agent with respect to this Lease or the negotiation
thereof arising out of any acts of Tenant.
SECTION 35.7. NO ACCORD AND SATISFACTION. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly rent herein stipulated and
additional rent shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
SECTION 35.8. JOINT EFFORT. The preparation of this Lease has been a joint
effort of the parties hereto and the resulting documents shall not, solely as a
matter of judicial construction, be construed more severely against one of the
parties than the other.
SECTION 35.9. WAIVER OF JURY TRIAL. Tenant hereby waives a jury trial in
action brought by Landlord hereunder. If Landlord commences any proceeding for
nonpayment of rent or any other sum due to be paid by Tenant under this Lease,
Tenant hereby agrees that Tenant will not impose any counterclaim of any nature
or description in any such proceeding, provided however, such agreement of
Tenant shall not be construed as a waiver of the right of Tenant to assert such
claim in a separate action or actions brought by Tenant.
34
<PAGE> 40
SECTION 35.10. TIME. Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
SECTION 35.11. LANDLORD'S CONSENT. Landlord's granting of any consent under
this Lease, or Landlord's failure to object to any action taken by Tenant
without Landlord's consent required under this Lease, shall not be deemed a
waiver by Landlord of its rights to require such consent for any further similar
act by Tenant. No waiver by Landlord of any other breach of the covenants of
this Lease shall be construed, taken or held to be a waiver of any other breach
or to be a waiver, acquiescence in or consent to any further or succeeding
breach of the same covenant. None of the Tenant's covenants under this Lease,
and no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord.
SECTION 35.12. NO PARTNERSHIP. Landlord is not, and shall not be deemed to
be, in any way or for any purpose, the partner, employer, principal, master or
agent of or with Tenant.
SECTION 35.13. LANDLORD'S LIABILITY. Notwithstanding anything to the
contrary herein contained, there shall be absolutely no personal liability
asserted or enforceable against Landlord or on any persons, firms or entities
who constitute Landlord with respect to any of the terms, covenants, conditions
and provisions of this Lease, and Tenant shall, subject to the rights of any
mortgagee, look solely to the interest of Landlord, its successors and assigns
in the Premises for the satisfaction of each and every remedy of Tenant in the
event of default by Landlord hereunder; such exculpation of personal liability
is absolute and without any exception whatsoever. If the entity constituting
Landlord is a partnership, Tenant agrees that the deficit capital account of any
such partner shall not be deemed an asset or property of said partnership.
Notwithstanding anything in this Lease to the contrary, with respect to any
provision of this Lease which requires Landlord's consent or approval, Tenant
shall not be entitled to make, nor shall Tenant make, any claim for (and Tenant
hereby waives any claim for) money damages as a result of any claim by Tenant
that Landlord has unreasonably withheld or unreasonably delayed any consent or
approval, but Tenant's sole remedy shall be an action or proceeding to enforce
such provision, or for specific performance, injunction or declaratory judgment.
SECTION 35.14. ENTIRE AGREEMENT. It is understood and agreed that all
understandings and agreements heretofore had between the parties hereto are
merged in this Lease, the exhibits annexed hereto and the instruments and
documents referred to herein, which alone fully and completely express their
agreements, and that no party hereto is relying upon any statement or
representation, not embodied in this Agreement, made by the other. Each party
expressly acknowledges that, except as expressly provided in this Agreement, the
other party and the agents and representatives of the other party have not made,
and the other party is not liable for or bound in any manner by, any express or
implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the transactions contemplated
hereby.
SECTION 35.15. RENT ABSOLUTE. Except as otherwise expressly provided
herein, this Lease shall be deemed and construed to be a "net lease" and Tenant
agrees to pay all costs and expenses of every kind and nature whatsoever,
ordinary and extraordinary, arising out of or in connection with the ownership,
maintenance, repair, replacement, use and occupancy of the Premises during the
Term of this Lease, which, except for the execution and delivery hereof, would
otherwise have been payable by Landlord.
SECTION 35.16. PURCHASE CONTINGENCY. Landlord and Tenant acknowledge and
agree that Landlord's obligations under this Lease are expressly contingent upon
Landlord's purchase of the Premises and the closing of such purchase by which
Landlord obtains fee simple title to the Land. In the event that said events
have not occurred on or before February 29, 2000, either party may terminate
this Lease upon notice to the other at any time prior to the closing of such
purchase.
35
<PAGE> 41
IN WITNESS WHEREOF, the parties have executed this Lease as of the date set
forth above.
LANDLORD: CENTERPOINT PROPERTIES TRUST, a Maryland real
- --------- estate investment trust
By: /s/ Paul T. Ahern
--------------------------------------------
Its: Paul T. Ahern
--------------------------------------------
Chief Investment Officer
By: [ILLEGIBLE]
--------------------------------------------
Its: V.P./Controller
--------------------------------------------
TENANT: WORLD DRYER CORPORATION, a Division of Specialty
- ------- Equipment Manufacturing Corporation, a Delaware
corporation
By: /s/ Randy M. Cordan
--------------------------------------------
Its: President
--------------------------------------------
ATTEST:
By: /s/ Linda M. Kilaryde
--------------------------------------------
Its: Vice President
--------------------------------------------
36
<PAGE> 42
EXHIBIT "A"
LEGAL DESCRIPTION
-----------------
PARCEL 1:
THAT PART OF THE FOSCO CORPORATION BERKELEY INDUSTRIAL DEVELOPMENT UNIT 'B'
BEING A SUBDIVISION OF PART OF THE SOUTH 1/2 OF THE SOUTH EAST 1/4 OF SECTION 6,
TOWNSHIP 39 NORTH, RANGE 12 EAST OF THE THIRD PRINCIPAL MERIDIAN, WHICH IS
BOUNDED AS FOLLOWS:
ON THE EAST BY A LINE 129 FEET WEST OF AND PARALLEL WITH THE EAST LINE OF LOT 14
IN SAID SUBDIVISION; ON THE SOUTH BY THE NORTH LINE OF MC DERMOTT DRIVE; ON THE
WEST BY A LINE 334 FEET WEST OF AND PARALLEL WITH SAID EAST LINE OF SAID LOT 14;
AND ON THE NORTH BY THE NORTHERLY LINE OF SAID SUBDIVISION; IN COOK COUNTY,
ILLINOIS.
PARCEL 2:
NON-EXCLUSIVE EASEMENT FOR THE BENEFIT OF PARCEL 1 AS CREATED BY GRANTS FROM THE
FOSCO CORPORATION, AN ILLINOIS CORPORATION, TO AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST AGREEMENT DATED AUGUST 30, 1965 AND
KNOWN AS TRUST NUMBER 22196 DATED SEPTEMBER 1, 1965 AND RECORDED SEPTEMBER 16,
1965 AS DOCUMENT 19589602 AND DATED MARCH 7, 1966 AND RECORDED MARCH 8, 1966 AS
DOCUMENT 19759362 FOR RAILROAD SIDE TRACKS OVER THE FOLLOWING DESCRIBED
PROPERTY:
A 20 FOOT STRIP OF LAND SOUTH OF AND ADJOINING THE SOUTH LINE OF THE EASEMENT
GRANTED BY CHICAGO AND NORTHWESTERN RAILWAY COMPANY TO THE COMMONWEALTH EDISON
COMPANY BY GRANT DATED AUGUST 21, 1961 AND RECORDED AUGUST 31, 1961 AS DOCUMENT
18263289 EXTENDING FROM THE EAST LINE OF TAFT AVENUE IN THE VILLAGE OF BERKELEY
TO THE WEST LINE OF PARCEL 1 AND FROM THE EAST LINE OF PARCEL 1 TO A LINE 51
FEET EAST OF AND PARALLEL WITH THE WEST LINE OF LOT 10 IN THE FOSCO
CORPORATION'S BERKELEY INDUSTRIAL DEVELOPMENT UNIT 'A' BEING A SUBDIVISION OF
PART OF THE SOUTH 1/2 OF THE SOUTH EAST 1/4 OF SECTION 6, TOWNSHIP 39 NORTH,
RANGE 12 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
A-1
<PAGE> 43
EXHIBIT "B"
TENANT ESTOPPEL CERTIFICATE
---------------------------
Property Name:
Tenant:
To:
DEFINITIONS:
- ------------
Lease Date:
Landlord:
Tenant:
Security Deposit:
Date of Possession:
Rent Commencement Date:
Monthly Base Rent:
Annual Base Rental Amount:
Monthly Deposits:
Term:
Termination Date:
Renewal Option(s):
Square Footage:
Use:
Tenants Address For Notices:
["Purchaser"] ["Lender"] proposes to [purchase the Property] [finance the
Property] and this Tenant Estoppel Certificate is to be made and delivered in
connection with that [purchase] [financing].
The undersigned Tenant under the above-referenced lease dated as of the
Lease Date between Landlord and Tenant ("Lease"), certifies, represents,
confirms and agrees in favor of [Purchaser] [Lender] the following:
B-1
<PAGE> 44
1. The above-described Lease has not been cancelled, modified, assigned,
extended or amended and contains the entire agreement between Landlord and
Tenant except as follows:
2. Rent has been paid to ________________________________________. There
is no Prepaid Rent. The amount of the Security Deposit is as set forth above,
which is currently being held by Landlord.
3. Tenant took possession of the leased premises on the Date of
Possession, and commenced to pay rent on the Rent Commencement Date, in the
amount of the Monthly Base Rent, each payable in advance. Our current Annual
Base Rental Amount is as set forth above, payable in equal monthly installments,
subject to percentage rental, common area maintenance charges, escalation
charges and other charges in accordance with the terms and provisions of the
Lease, which as of the date hereof total the Monthly Deposit Amount, each
payable in equal monthly installments in advance. We are currently in occupancy
of the leased premises. No "discounts", "free rent", "discounted rent" or
"abatements of rent" have been agreed to or are in effect.
4. The Lease is for the Term set forth above and ending on the Termination
Date, and we have the Renewal Option(s) set forth above.
5. All space and improvements covered by the Lease have been completed and
furnished to the satisfaction of Tenant, all conditions required under the Lease
have been met, and Tenant has accepted and taken possession of the leased
premises on the Date of Possession as set forth above and presently occupies the
leased premises, presently consisting of the Square Footage as set forth above.
6. The Lease is (a) in full force and effect, and (b) free from default by
both Landlord and Tenant; and we have no claims, liens, charges or credits
against Landlord or offsets against rent.
7. The undersigned has not assigned or sublet the Lease, nor does the
undersigned hold the Property under assignment or sublease.
8. There are no other agreements written or oral, between the undersigned
and Landlord with respect to the Lease and/or the leased premises and building.
Landlord has satisfied all commitments, arrangements or understandings made to
induce Tenant to enter into the Lease, and Landlord is not in any respect in
default in the performance of the terms and provisions of the lease, nor is
there now any fact or condition which, with notice or lapse of time or both,
would become such a default.
9. The leased premises are currently being used for the Use set forth
above.
10. Tenant is maintaining (free of default) all insurance policies that the
Lease requires Tenant to maintain.
11. Neither Landlord nor [Purchaser] [Lender] nor any of their respective
successor or assigns, has or will have any personal liability of any kind or
nature under or in connection with the Lease; and, in the event of a default by
Landlord or [Purchaser] [Lender] under the Lease, Tenant shall look solely to
Landlord's or [Purchaser's] [Lender's] interest in the building in which the
leased premises are located.
12. Tenant is not in any respect in default under the terms and provisions
of the Lease (nor is there now any fact or condition which, with notice or lapse
of time or both, would become such a default), and Tenant has not assigned,
transferred or hypothecated its interest under the Lease.
13. Tenant (i) does not have any option or preferential right to purchase
all or any part of the leased premises or all or any part of the building of
which the leased premises are a part; and (ii) does not have any right, title or
interest with respect to the leased premises other than as lessee under the
Lease.
B-2
<PAGE> 45
14. We understand that [Purchaser] [Lender] is planning, to [purchase]
[finance] the Property on which the leased premises is located to Purchaser, and
we agree to make all payments required under the Lease to [Purchaser] [Lender]
upon our receipt of notice from Landlord and/or [Purchaser] [Lender]. Further,
upon receipt of such notice, we will thereafter look to [Purchaser] [Lender] and
not Landlord as the landlord under the Lease. We agree to give all notices
required to be given by us to Landlord under the Lease to [Purchaser] [Lender]
upon our receipt of said notice.
15. The statements contained herein may be relied upon by [Purchaser]
[Lender] and by any prospective purchaser or lender of the Property.
16. If Tenant is a Corporation, the undersigned is a duly appointed officer
of the corporation signing this Agreement, and is the incumbent in the office
indicated under his or her name. If Tenant is a partnership or joint venture,
the undersigned is a duly appointed partner or officer of the partnership or
joint venture signing this certificate. In any event, the undersigned individual
is duly authorized to execute this Agreement on behalf of Tenant.
17. Tenant (a) executes this certificate with the understanding that
[Purchaser] [Lender] is contemplating [purchasing] [financing] the Property, and
that if [Purchaser] [Lender] [purchases] [finances] the Property, [Purchaser]
[Lender] will do so in material reliance on this certificate; and (b) agrees
that the certifications and representations made herein shall survive such
acquisition.
18. The current address to which all notices to Tenant as required under
the Lease should be sent is the Tenant's Address for Notices.
19. [Purchaser's] [Lender's] rights hereunder shall inure to its successors
and assigns.
IN WITNESS WHEREOF, Tenant has executed this estoppel certificate as of
this _________ day of _________, 199__.
_____________________,a(n)____________________
By:
---------------------------------------------
Its:
--------------------------------------------
B-3
<PAGE> 46
EXHIBIT "C"
TENANT'S WORK
-------------
C-1
<PAGE> 1
EXHIBIT 12.1
STATEMENT RE:
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
($ IN THOUSANDS)
<TABLE>
<CAPTION>
Years Ended January 31,
1996 1997 1998 1999 2000
--------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings:
Earnings from operations
before income taxes $ 18,369 $ 42,009 $ 47,099 $ 60,056 $ 64,002
Interest expense (1) 21,010 18,714 15,944 14,068 7,964
Amortization of
deferred financing costs 1,828 1,670 1,479 587 273
---------------------------------------------------------------------------
Total $ 41,049 $ 62,202 $ 63,630 $ 74,667 $ 72,239
===========================================================================
Fixed charges:
Interest expense (1) $ 21,010 $ 18,714 $ 15,944 $ 14,068 $ 7,964
Amortization of
deferred financing costs 1,828 1,670 1,479 587 273
---------------------------------------------------------------------------
Total $ 22,680 $ 20,193 $ 16,531 $ 14,611 $ 8,237
===========================================================================
Ratio of earnings to fixed charges 1.81x 3.08x 3.85x 5.11x 8.77x
</TABLE>
(1) Interest expense includes interest income, but excludes amortization of
deferred financing costs.
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF SPECIALTY EQUIPMENT COMPANIES, INC.
Jurisdiction of Incorporation
Subsidiary or Organization
- ---------- ---------------
Bloomfield Industries Canada Limited Ontario, Canada
Carter-Hoffmann Illinois, U.S.A.
Coolpart B.V. The Netherlands
FM Manufacturing, Inc. Delaware, U.S.A.
Gamko Holding B.V. The Netherlands
Specialty Equipment International B.V. The Netherlands
Specialty Equipment Foreign Sales Corporation Delaware, U.S.A.
Specialty Equipment Manufacturing Corporation Delaware, U.S.A.
Taylor-Chicago Corporation Illinois, U.S.A.
Taylor Freezer (Cyprus) Limited Cyprus
Taylor Freezer International S.r.l. Rome, Italy
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Specialty Equipment Companies, Inc.
We consent to incorporation by reference in the registration statement (No.
33-74604) on Form S-8 of Specialty Equipment Companies, Inc. of our report dated
March 17, 2000, relating to the consolidated balance sheets of Specialty
Equipment Companies, Inc. and subsidiaries as of January 31, 1999 and 2000, and
the related consolidated statements of earning, stockholders' equity and
comprehensive income, and cash flows and the related schedule for each of the
years in the three-year period ended January 31, 2000, which report appears in
the January 31, 2000 annual report on Form 10-K of Specialty Equipment
Companies, Inc.
KPMG LLP
Chicago, Illinois
April 24, 2000
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ KEVIN GLAZER
----------------
Kevin Glazer
Dated: April 18, 2000
<PAGE> 2
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ AVRAM GLAZER
----------------
Avram Glazer
Dated: April 13, 2000
<PAGE> 3
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ MALCOLM GLAZER
------------------
Malcolm Glazer
Dated: April 13, 2000
<PAGE> 4
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ DANIEL B. GREENWOOD
-----------------------
Daniel B. Greenwood
Dated: April 18, 2000
<PAGE> 5
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ WILLIAM E. DOTTERWEICH
--------------------------
William E. Dotterweich
Dated: April 14, 2000
<PAGE> 6
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ RICHARD KENT
----------------
Richard Kent
Dated: April 13, 2000
<PAGE> 7
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ CHARLES HUTCHINSON
----------------------
Charles Hutchinson
Dated: April 14, 2000
<PAGE> 8
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MENT BY THESE PRESENTS, that the individual whose signature
appears below hereby appoints Jeffrey P. Rhodenbaugh and Donald K. McKay, and
each of them, any one of whom may act without the joinder of the other, as his
attorney-in-fact with full power of substitution and resubstitution to sign on
his behalf in any and all capacities, and to sign and file all amendments and
post-effective amendments to, the Annual Report on Form 10-K ("Form 10-K") to be
filed under the Securities and Exchange Act of 1934 by Specialty Equipment
Companies, Inc., a Delaware corporation, on or about April 24, 2000, and any and
all other documents that may be required in connection with the filing of the
Form 10-K, which amendments may make such changes and additions to the Form 10-K
as such attorney-in-fact may deem necessary or appropriate.
/s/ BARRY MACLEAN
-----------------
Barry MacLean
Dated: April 17, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JAN-31-2000
<PERIOD-START> FEB-01-1999
<PERIOD-END> JAN-31-2000
<CASH> 459
<SECURITIES> 0
<RECEIVABLES> 75,943
<ALLOWANCES> (4,442)
<INVENTORY> 64,133
<CURRENT-ASSETS> 167,442
<PP&E> 89,955
<DEPRECIATION> (38,549)
<TOTAL-ASSETS> 265,316
<CURRENT-LIABILITIES> 109,697
<BONDS> 126,374
0
0
<COMMON> 193
<OTHER-SE> 27,184
<TOTAL-LIABILITY-AND-EQUITY> 265,316
<SALES> 502,119
<TOTAL-REVENUES> 502,119
<CGS> 344,150
<TOTAL-COSTS> 344,150
<OTHER-EXPENSES> 86,003
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,964
<INCOME-PRETAX> 64,002
<INCOME-TAX> 19,577
<INCOME-CONTINUING> 44,369
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 44,369
<EPS-BASIC> 2.36
<EPS-DILUTED> 2.22
</TABLE>
