U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 [Fee Required]
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 [No Fee Required]
Commission File No. 0-21232
RECOVERY ENGINEERING, INC.
(Name of small business issuer in its charter)
MINNESOTA 41-1557115
- ------------------------------ ------------------------------------
State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2229 EDGEWOOD AVENUE SOUTH, MINNEAPOLIS, MN 55426
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(Address of principal executive offices)
Registrant's telephone number: (612) 541-1313
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Securities registered pursuant to Section 12(b) of the Act: NONE
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Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
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(Title of class)
Indicate by checkmark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes __X__ No ____
Indicate by checkmark 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. __X__
State the aggregate market value of the voting stock held by non-affiliates of
the registrant. The aggregate market value shall be computed by reference to the
price at which the stock was sold, or the average bid and asked prices of such
stock, as of a specified date within 60 days prior to the date of filing. (See
definition of affiliate in Rule 405, 17 CFR 230.405).
$25,442,770 AS OF MARCH 14, 1997
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Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practical date.
COMMON STOCK, $.01 PAR VALUE - 3,282,938 SHARES AS OF MARCH 14, 1997
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DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Annual Report to Shareholders for the fiscal year ended December
31, 1996 (the "Annual Report to Shareholders"), are incorporated by reference
into Part II. Portions of the definitive Proxy Statement for the Annual Meeting
of Shareholders to be held on April 24, 1997 (the "Proxy Statement"), and to be
filed within 120 days after the Registrant's fiscal year ended December 31,
1996, are incorporated by reference into Part III.
TABLE OF CONTENTS
PAGE
PART I
ITEM 1. BUSINESS.................................................... 1
General.................................................. 1
Background............................................... 1
Company History and Strategy............................. 2
Household Water Filters.................................. 3
Portable Drinking Water Systems.......................... 5
Reserve Osmosis Desalinators............................. 6
Marketing and Distribution............................... 7
Research and Development................................. 8
Patents.................................................. 8
Competition.............................................. 8
Manufacturing............................................ 8
Government Regulation.................................... 9
Employees................................................ 9
ITEM 2. PROPERTIES.................................................. 9
ITEM 3. LEGAL PROCEEDINGS........................................... 10
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS......... 10
PART II
ITEM 5. MARKET FOR COMMON STOCK AND RELATED
STOCKHOLDER MATTERS......................................... 10
ITEM 6. SELECTED FINANCIAL DATA..................................... 10
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS......................... 10
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA................. 10
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE...................... 10
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS............................ 10
ITEM 11. EXECUTIVE COMPENSATION...................................... 11
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT.............................................. 11
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.............. 11
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
AND REPORTS ON FORM 8-K..................................... 12
SIGNATURES.................................................. 14
PART I
ITEM 1. BUSINESS
GENERAL
Recovery Engineering, Inc. ("REI" or the "Company"), a Minnesota
corporation, designs, develops, manufactures, and markets proprietary
small-scale drinking water systems. Sold under the PUR(R) brand name, the
Company's products include a line of self-monitoring water filters for home use,
a rugged line of portable water systems for outdoor enthusiasts and
international travelers, and the world's most energy efficient line of
desalinators for sailors and military personnel.
The household product line was developed to address growing concerns
about residential drinking water quality and dissatisfaction with products
currently offered by competitors. These products incorporate proprietary
technology which the Company believes gives it a sustainable competitive
advantage over other products currently in the market. This technology, known as
ASM(R) (Automatic Safety Monitor(TM), monitors the life remaining in a filter
cartridge and then shuts off the water flow when a filter has reached the end of
its useful life. These filter products use advanced filtration technologies
including ion exchange resin and activated carbon technology to remove lead,
chlorine, and other contaminants while improving water taste, odor and color.
Selected models also remove microorganisms as small as Cryptosporidium and
Giardia.
In 1995, the Company entered into an agreement with Braun AG, a leading
German housewares company, to supply water filters for Braun's FlavorSelect(R)
coffee makers. This product also incorporates the ASM and uses ion exchange
resin and activated carbon technology.
The Company has also entered into an agreement with Groupe-SEB, the
second largest small appliance manufacturer in the world. The terms of the
agreement provide Groupe-SEB with rights to distribute PUR household water
filters in all countries outside of North America and Japan.
REI's antimicrobial portable water purifiers use a proprietary
disinfection technology that eliminates all harmful microorganisms from drinking
water in seconds, making it possible for individuals to treat contaminated water
when they are traveling or backpacking. The energy recovery technology used in
the Company's reverse osmosis desalinators reduces the pumping energy needed to
desalinate seawater by approximately 90%, enabling the development of unique
hand-operated systems for life rafts.
The Company has historically invested and expects to continue to invest
in research and development activities. New technologies currently under
development are expected to result in the introduction of several new water
treatment products to enhance existing product lines.
BACKGROUND
During the last half-century, reliable drinking water has largely been
taken for granted in the United States and other western nations. Despite its
seeming abundance, however, potable water is quite rare. Two-thirds of the
Earth's surface is covered by salt water, while most of the rivers and lakes of
the world contain toxins or microorganisms that may cause disease. Much of the
populated world, including parts of Asia, Africa and Latin America, does not
have adequate sewage or water treatment facilities, leaving tap water unfit for
human consumption. In the United States and other developed countries, lead and
other impurities can make water potentially unsafe or unpleasant in taste, color
and odor.
The type of equipment required to treat polluted drinking water varies
depending upon the type of contamination. In general, water filters are designed
only to remove sediment and chemical contaminants. To remove microbiological
contaminants such as viruses, bacteria and protozoa, water purifiers are
required.
HOUSEHOLD MARKET
Concerns about the quality of drinking water among United States
consumers have increased significantly in recent years. The Company believes
that this increasing awareness and concern has contributed significantly to a
steady increase in the size of the market in the United States for household tap
water substitutes (primarily bottled water) and drinking water equipment. The
United States market for bottled water is currently estimated to be over $3
billion annually. An additional $1 billion per year is estimated to be spent on
drinking water treatment equipment, services and supplies.
A variety of products is currently available to improve the aesthetic
properties of water (taste, color and odor) and to remove harmful contaminants
such as lead and chlorine. Consumer research conducted by the Company in 1993
and reconfirmed in 1996 revealed, however, that the performance of existing
water filters failed to meet consumers' expectations, primarily because
consumers have no way of knowing whether or not the filters are working. The PUR
Self Monitoring Water Filter(TM), which incorporates the Company's ASM
technology, is designed to assure consumers that they will only obtain properly
filtered drinking water, by automatically shutting off the water flow when the
filter cartridge has reached the end of its useful life. The ASM technology also
provides consumers with an ongoing read-out of the filter cartridge's remaining
life so that they can anticipate the need to purchase a replacement filter
cartridge.
RECREATIONAL AND MILITARY MARKETS
International travelers, sailors and campers often find themselves in
locations where a central water supply is either unavailable or unreliable.
International travelers and outdoor enthusiasts have long known of the hazards
of drinking the water in certain countries or from lakes and streams, while
saltwater sailors generally must contend with limited storage space for drinking
and emergency water. These individuals have historically relied on slow acting
chemical processes to treat non-potable water, or on nothing at all, risking
either serious illness or dehydration.
Individuals are spending an increasing amount of time pursuing
recreational activities, as evidenced by the growth of the leisure equipment
market over the past 20 years. According to the United States Census Bureau,
United States citizens make an estimated six million trips each year to
countries where the local water supply is not reliable and take over 30 million
backpacking trips each year, and nearly 90,000 sailors own ocean-going
sailboats. Similar trends in the level of recreational activity and leisure
equipment purchases are present internationally.
Armed service personnel around the world also encounter situations
where no reliable water supply is available. In particular, space limitations
prevent the storage of significant amounts of emergency potable water on board
ship and airplane life rafts, while harsh field activities often force soldiers
to rely on contaminated natural water sources. It is estimated that there are
40,000 life rafts presently available for use by the United States armed forces,
all of which require some means of desalinating seawater to ensure the survival
of military personnel. Likewise, when any of the more than 800,000 United States
infantrymen are deployed in the field, a reliable and efficient means of
purifying water is often required.
COMPANY HISTORY AND STRATEGY
Since its formation in 1986, the Company has utilized its mechanical
and chemical engineering expertise to develop new water filtration and
purification products for use where size, cost or energy constraints have
prevented the adequate treatment of water. The Company's existing and proposed
product lines address a wide range of needs in the military, recreational and
consumer markets for water filtration and purification products; with each
product, the Company has focused on a market segment that enables the Company to
expand and build on its existing expertise and reputation in water filtration
and purification.
The Company's first product, developed for the United States Navy,
required the invention of a compact hand-operated reverse osmosis desalinator
that could produce up to 25 gallons of fresh water per day. The Navy sought to
deploy such a device on its life rafts as a replacement for chemical desalter
kits. In 1988, the Company introduced its first reverse osmosis desalinator,
which utilized a unique energy recovery technology to reduce by approximately
90% the pumping energy needed to purify seawater. Since that time, three other
products have been developed around this technology, each for applications where
desalinating seawater had not been previously practical.
In 1988, the Company also initiated development of products designed to
treat contaminated fresh water. To overcome the limitations of existing
filtration and chemical means employed for field water treatment, the Company
developed a new technology, known as Tritek(R), capable of eliminating all types
of microorganisms, including protozoa, bacteria and viruses, from drinking water
in seconds. In addition, since size limitations prevented use of a filter large
enough to remove high quantities of sediment without clogging, the Company
developed a unique self-cleaning filter technology for its top-of-the-line model
that extends the life of a conventional microfilter by approximately 20 to 40
times, depending on the water conditions. The Company introduced the PUR
Explorer(R) and Portable(TM) models in 1991, the PUR Scout(TM) in 1992, the PUR
Hiker(TM) in 1993, the PUR Pioneer(TM) in 1994, and will be introducing the PUR
Voyager in 1997.
In 1994, the Company introduced the PUR Self Monitoring Water Filter
product for household use. This faucet-mounted product incorporates the
Company's proprietary technology known as ASM which indicates to the consumer
the life remaining in a filter cartridge and then shuts off the water flow when
a filter cartridge has reached the end of its useful life.
In 1995, the Company completed development of a water filter product to
be used in Braun FlavorSelect(R) coffee makers. All new FlavorSelect coffee
makers sold in Europe and Asia include the PUR water filter. Braun rolled
out this new filter to the US during 1996. This product also incorporates the
Company's proprietary ASM technology.
In 1996, the Company introduced two new PUR Self Monitoring Water
Filters for household use. The countertop model incorporates the Company's
proprietary ASM technology and utilizes the Company's advanced carbon block
technology. The water pitcher model also incorporates the Company's proprietary
ASM technology and uses ion exchange resin and activated carbon technology.
Replacement filters for the pitcher model fit the leading competitor's pitcher
models.
In 1996, the Company completed an international distribution agreement
with Groupe-SEB, the second largest small appliance manufacturer in the world.
Groupe-SEB is a $1.9 billion, French-based company whose products are
distributed in over 80 countries, and are marketed under two brand names,
Rowenta and T-Fal. The terms of the agreement provide Groupe-SEB with
distribution rights of PUR household water filters in all countries outside of
North America and Japan. The multi-year agreement with renewal options gives the
Company immediate access to worldwide markets with minimal investment in sales
and marketing activities.
HOUSEHOLD WATER FILTERS
In 1994, the Company began shipping its faucet-mounted water filter for
household applications for sale in the United States. In January 1996 the
Company introduced its countertop water filter, in September 1996 the Company
introduced its pitcher water filter, and in 1997 the Company will introduce an
under-sink product. This will complete the Company's strategy of developing a
"good, better, best" line of products based on performance and consumer
benefits.
A variety of products is currently available to improve the aesthetic
properties of drinking water (taste, color and odor) and to remove harmful
contaminants such as lead and chlorine. Currently, the most common drinking
water treatment technologies for household use include activated carbon
filtration, reverse osmosis, distillation and ion exchange (a chemical process
which removes certain contaminants such as lead). These technologies vary based
primarily upon cost, ease of use and effectiveness, but each can be adapted to
some method of household use.
In the current household market, the channels of retail distribution
tend to define the types of products offered to consumers. Water treatment
dealers typically offer larger, more expensive systems, primarily utilizing
reverse osmosis, that are mounted under the sink or at the location where the
water enters the home. Mass market retailers focus primarily on activated carbon
filtration, offering less expensive products with replaceable filter cartridges,
including carafes or filters that can be mounted on the faucet. To a lesser
extent, activated carbon filtration and distillation systems that can be
installed on the counter or under the sink are available from mass market
outlets such as home centers and hardware stores. Filtration systems are also
sold through direct sales networks such as door-to-door sales and mail order
organizations. The Company's PUR household water filters are positioned to
compete with mass market retail products.
Despite growing concern over water quality and safety, the domestic
market penetration of self-installed household drinking water treatment systems
is estimated to be only nine percent of United States households. Consumer
research conducted by the Company in 1993, and reconfirmed in 1996, revealed
that the performance of existing water filters failed to meet consumers'
expectations, primarily because consumers have no way of knowing whether or not
the filters are working. Most harmful contaminants do not affect the taste,
color or odor of water, which makes it difficult for a consumer to evaluate the
effectiveness of a filter.
To address this consumer concern, and to assure consumers that they
will only obtain properly filtered drinking water, the PUR household water
filter incorporates the Company's ASM technology on all products. This
technology provides an ongoing read-out of the life remaining in a water filter
cartridge and automatically shuts off the water flow when the filter cartridge
has reached the end of its useful life. Because ASM technology shuts off the
water flow when the filter cartridge has reached the end of its useful life, the
Company believes that consumers will be more likely to purchase replacement
cartridges on a timely basis, providing the Company an opportunity for recurring
sales to users of PUR products. Replacement filter cartridges are sold at retail
prices which allow consumers to obtain filtered water at a small fraction of the
cost of bottled water, which typically is sold for $.60 to $1.00 per gallon.
The products comprising the PUR line of household water filters are as
follows:
PUR FM SERIES. The PUR FM Series Self-Monitoring Water Filter,
introduced in 1994, is a compact faucet-mounted water filter which is
approximately five inches high, with a flow rate of three liters per minute. The
packages include one or two replacement filter cartridges, each of which has a
useful life of about two to three months in a typical home. The filter
incorporates a patented carbon block filter which removes microorganisms as
small as Cryptosporidium and Giardia. The filter also removes 98% of lead,
chlorine, and sediment from drinking water while improving taste, color and
odor. (Suggested retail price: $29.99)
PUR CT SERIES. The PUR CT Series Self-Monitoring Water Filter,
introduced in January 1996, is a compact countertop water filter which is
approximately 9 inches high with a flowrate of three liters per minute. The
countertop model offers greater contaminant reduction and longer filter life
than the PUR FM series faucet-mounted water filter. It uses replaceable filter
cartridges with a useful life of about eight to twelve months in a typical home.
The filter incorporates a patented carbon block filter which removes
microorganisms as small as Cryptosporidium and Giardia. The filter also reduces
contaminants such as 98% of lead, pesticides, herbicides, chlorine, and mercury
from drinking water while improving taste, color and odor. Certain models come
with a mounting bracket that allows the unit to be installed on the wall, under
the cabinet or behind the sink. (Suggested retail price: $69.99)
PUR CR SERIES. The PUR CR Series Self-Monitoring Water Filter,
introduced in September 1996 is a water pitcher which holds approximately a half
gallon of filtered water. The slim design fits into the refrigerator door. The
packages include one or two replacement filter cartridges, each of which has a
40-gallon useful life, or about one month usage in the typical home. The filter
removes 98% lead, and reduces chlorine and sediment while improving taste,
color, and odor. (Suggested retail price: $24.99)
PUR PLUS FM SERIES. The PUR Plus FM Series Self-Monitoring Water
Filter, introduced in 1997, is a compact faucet-mounted water filter which is
approximately five inches high, with a flowrate of three liters per minute. It
will feature PUR's exclusive Automatic Safety Monitor, and a convenient filtered
water spray flow for washing fruits and vegetables. The packages include one or
two replacement filter cartridges, each of which has a useful life of two to
three months in the typical home. The filter incorporates the same patented
carbon block filter as the existing PUR FM Series but has better contaminant
removal characteristics. The filter not only removes microorganisms, lead, and
chlorine, but also removes pesticides, herbicides, atrazine, mercury and
asbestos while improving taste, color and odor. (Suggested retail price: $39.99)
PUR FAUCET-MOUNT REPLACEMENT CARTRIDGES. PUR replacement cartridges for
the FM Series are sold in single, double, and triple packs. (Suggested retail
price: $14.99 to $26.99)
PUR PLUS FAUCET-MOUNT REPLACEMENT CARTRIDGES. PUR replacement
cartridges for the FM Plus Series are sold in single, double, and triple packs.
(Suggested retail price: $14.99 to $34.99)
PUR COUNTERTOP REPLACEMENT CARTRIDGES. PUR replacement cartridges for
the CT Series are sold in single packs. (Suggested retail price: $29.99)
PUR CARAFE REPLACEMENT CARTRIDGES. PUR replacement cartridges for the
CR Series are sold in single and triple packs. (Suggested retail price: $7.99
and $21.99)
PORTABLE DRINKING WATER SYSTEMS
The Company offers a line of PUR antimicrobial water purifiers and
microfilters for treating fresh water supplies contaminated with microorganisms.
These products are designed to meet the needs of international travelers,
outdoor enthusiasts and military personnel.
Various methods have historically been used to disinfect water,
including chlorine gas, iodine, silver nitrate, hydrogen peroxide and boiling.
These methods involve a significant amount of time to be effective and,
therefore, are not convenient or practical for use on a consistent basis to
produce drinking water. In addition, chemical disinfectants are relatively
ineffective against cyst forms of various parasites, including GIARDIA LAMBLIA,
and leave residual concentrations in water, which may render the water
unpalatable. Filtration is also commonly used to treat contaminated water. While
it is an effective means of removing larger microorganisms, like protozoa and
bacteria, it is not a practical means of removing viruses. In addition, the
smaller the pore size of the filter, the more quickly it will clog. Therefore,
using a filter with as large a pore size as possible is preferable in order to
maximize its life, making it undesirable to rely on it to remove microorganisms
as small as bacteria.
PUR fresh water purifiers incorporate the Company's proprietary Tritek
technology, which combines microfiltration and an iodinated resin matrix to
produce safe drinking water in seconds. The microfilter is used to remove
sediment and the largest and most chemically resistant microorganisms. Smaller
microorganisms, like bacteria and viruses, are killed upon contact with the
iodinated resin. The result is a process that takes advantage of the positive
attributes of microfiltration and iodinated resin, without suffering the
drawbacks of each approach when used alone.
The products comprising the PUR line of fresh water purifiers and
microfilters are as follows:
PUR EXPLORER. The Explorer, introduced in 1991, is a lightweight water
purifier designed for backpackers, campers and other outdoor enthusiasts. The
Explorer consists of a pump unit with a T-shaped handle, a filtered intake hose
and an output hose with a convenient hose clip for filling containers. A
double-acting pump enables one person to produce over 1.5 liters of water per
minute. The Explorer is approximately 11 inches long and weighs 20 ounces; the
intake and output hoses are each approximately three feet long. The Explorer
includes a self-cleaning mechanism, permitting the filter to be cleaned
conveniently without disassembly. (Suggested retail price: $129.95.)
PUR PORTABLE. The Portable, introduced in 1991, is a compact purifier
designed specifically for world travelers. Approximately 6-1/2 inches high when
stored and only 12 ounces in weight, it is small enough to fit readily in a
purse, daypack or briefcase. The Portable uses a plunger to force contaminated
water through a Tritek purifier filter cartridge. A convenient drinking cup,
which is filled from a fold-out spout as the piston is operated, is included
with the Portable. A cup of safe, palatable drinking water can be produced in
approximately five to ten seconds. (Suggested retail price: $49.95.)
PUR SCOUT. The Scout, introduced in 1992, is a smaller version of the
Explorer, approximately nine inches long and 12 ounces in weight, with intake
and output hoses approximately three feet long. It produces approximately 0.5
liter of water per minute. The Scout does not have the self-cleaning mechanism
included in the Explorer. (Suggested retail price: $79.95.)
PUR HIKER. The Company introduced the Hiker, a water microfilter, in
August 1993. The Hiker incorporates the Company's proprietary Anti-Clog Filter
Technology (AFT) which extends the life of the filter, eliminating the need for
the user to clean or maintain it. The Hiker, which weighs 11 ounces, is designed
for backpacking, camping and other outdoor recreation. The Hiker produces over
1.0 liter per minute and is approximately eight inches long; the intake and
output hoses are each approximately three feet long. (Suggested retail price:
$54.95.)
PUR PIONEER. The Company broadened its position in this market with the
August 1994 introduction of the Pioneer, an entry level water microfilter, which
began shipping in the second quarter of 1995. The Pioneer features a disposable
microfilter, designed to filter up to 20 gallons, and a built-in bottle adapter
which connects directly to Nalgene(TM) bottles (a trademark of Nalgene Co.). The
Pioneer, which weighs eight ounces, is designed for backpacking, camping and
other outdoor recreation. The Pioneer produces 1.0 liter per minute and is
approximately 4.5 inches in diameter; the intake and output hoses are each
approximately three feet long. (Suggested retail price: $29.95.)
PUR CARBON FILTER CARTRIDGE. In August 1991, the Company introduced a
carbon filter cartridge that can be used in conjunction with the Explorer and
Scout. The carbon cartridge, which attaches to the Tritek filtration cartridge,
improves the taste of the purified water and reduces any residual iodine or
other chemicals that may be present in the water. (Suggested retail price:
$19.95.)
PUR STOP TOP. In March 1995, the Company introduced a combined carbon
cartridge and bottle adapter that can be used in conjunction with the Explorer,
Scout, Hiker and Pioneer. The carbon cartridge improves the taste of the
purified water and reduces any residual iodine or other chemicals that may be
present in the water. (Suggested retail price: $14.95)
PUR EASYFILL BOTTLE ADAPTER. In March 1995, the Company introduced a
bottle adapter for the Explorer, Scout and Hiker. The bottle adapter connects to
all popular water bottles and is lightweight, durable and easy to use.
(Suggested retail price: $4.95)
Each of the PUR fresh water purifiers is registered with the EPA, which
has established minimum performance guidelines for microbiological water
purifiers. See "Regulation."
REVERSE OSMOSIS DESALINATORS
The Company offers a line of PUR reverse osmosis desalinators for
producing fresh water when sources of energy are either unavailable or in
limited supply. These products are used primarily in offshore marine, commercial
life raft and military applications.
Reverse osmosis desalination, which has been in use in large-scale
systems for over 20 years, occurs when feed water with dissolved solids (such as
salt) is forced against a semipermeable membrane at high pressure, typically 800
pounds per square inch. The membrane acts as a barrier to contaminants such as
salts, viruses and bacteria, separating them from the pure water that passes
through the membrane. In a conventional reverse osmosis system, approximately
10% of the seawater forced against the membrane passes through as pure water.
The remaining high-pressure waste brine stream passes through a pressure
reducing valve and is discharged. This process requires a large amount of
energy, making it impractical for small-scale applications.
Each of the Company's reverse osmosis products is a compact unit
incorporating a high-pressure energy recovery pump and a reverse osmosis
membrane. The patented high-pressure energy recovery pump is designed to recover
and effectively use energy that is wasted in a conventional reverse osmosis
system. The pump recycles the high-pressure waste brine stream, redirecting it
to the backside of the pump's piston. The force of the recycled brine counters
the opposing force on the piston's front side, providing a power assist to the
pumping operation. By thus recovering energy contained in the high-pressure
waste brine stream, the Company's energy recovery pump reduces the external
power needed to operate a desalinator by approximately 90%, and makes possible a
small-scale low-energy desalinator.
In 1997 the Company expects to initiate a new phase of the military
business which will involve reverse osmosis units currently in the field. The
Company is currently negotiating an agreement with the US Navy to service all of
the US military's manual desalinators on a four year cycle at REI's facility.
HAND-OPERATED DESALINATORS. The PUR Survivor(R)-35 and PUR Survivor-06
are hand-operated desalinators, designed primarily for emergency life raft use.
The PUR Survivor-35, the first desalinator built by the Company, was designed
for use by the United States Navy in 25-person life rafts and is also available
in commercial versions. The Survivor-35 can produce as much as 1.4 gallons of
fresh water per hour, which is ample for emergency use. It can also be used to
supplement fresh water supplies on a non-emergency basis. The Survivor-06, the
smallest reverse osmosis desalinator manufactured in the world, can produce a
pint of fresh water in less than 30 minutes. It is recommended for 4- to
12-person life rafts and individual survival kits. The Company is not aware of
any other hand-operated desalinators on the market.
12-VOLT DESALINATORS. The PUR PowerSurvivor-35, PUR PowerSurvivor-80
and PUR PowerSurvivor-160 are driven by a 12-volt DC motor with power supplied
by a boat's battery. Designed to meet the needs of the cruising sailor and
offshore powerboater, these products provide a renewable supply of fresh water
for drinking, cooking and clean-up. The PowerSurvivor-35 produces up to 1.4
gallons of fresh water per hour, using 4 amps of power. The PowerSurvivor-80
produces up to 3.3 gallons of fresh water per hour using 8 amps of power. The
PowerSurvivor-160 produces 6.7 gallons of fresh water per hour using 16 amps of
power. With these desalinators, boaters are able to extend their cruising range
without the space and weight required for larger fresh water storage tanks.
MARKETING AND DISTRIBUTION
The Company sells its products to consumers through a number of
different distribution channels. The Company's Vice President of Sales and Vice
President of Marketing direct the efforts of thirty-seven other people in its
sales and marketing departments to coordinate selling and servicing activities
to customers.
The Company currently sells the household water filters in the United
States and Canada through all mass retail channels, comprised of department
stores, mass merchants, catalog showrooms, drug stores, hardware stores, and
warehouse clubs. The Company's household products are distributed in over 15,000
stores nationwide. The Company plans to augment its distribution with the
addition of a few key retailers in the various channels. The accounts are
serviced by a network of more than 30 independent manufacturers' representative
agencies.
Over 1,000 outdoor and travel stores and more than a dozen mail order
catalogs offer the Company's fresh water purifiers and microfilters to campers,
backpackers and travelers around the country. A network of approximately 20
independent manufacturers' representatives services these accounts. Recreational
and commercial sailors can purchase the Company's reverse osmosis desalinators
from over 300 marine dealers and service centers on the Atlantic, Pacific and
Gulf coasts and from several marine catalogs. Internal sales and service
personnel manage these accounts directly. The Company also sells directly to the
United States armed forces. Sales to foreign military forces and consumers are
made through approximately 30 distributors located in Europe, Asia and the
Middle East. To create awareness for its products, the Company advertises in
consumer and trade publications, participates in consumer and trade shows, and
publishes periodic newsletters to its retailers.
The Company was awarded contracts in 1995 valued at up to $13 million
for the delivery of Survivor-35 and Survivor-06 desalinators to the United
States Air Force. Units shipped on the base contracts totaling $4.2 million were
delivered in 1995, and $3.4 million in 1996. Additional options totaling $5.4
million are expected to be exercised. The Company also sells the Survivor-35 and
Survivor-06 to foreign distributors who supply local military agencies.
RESEARCH AND DEVELOPMENT
With the technologies it has developed, the Company believes that its
products offer performance superior to comparably priced products sold by
competitors. The Company has a twenty-three person engineering staff which
engages in research and development of new products, and development of
enhancements to existing products. The Company's expenditures for research and
development were $2,007,000 in 1996, $2,021,000 in 1995, and $1,064,000 in 1994,
approximately 6%, 9%, and 6% of sales, respectively. The Company expects that
its research and development expenditures will continue to represent a
significant percentage of revenues in the future. There can be no assurance,
however, that the Company's technology and products will not be made obsolete by
technologies developed by others.
PATENTS
The Company is the owner of two United States patents with respect to
its reverse osmosis desalinators, three United States patents with respect to
its portable drinking water systems and four United States patents with respect
to its household drinking water systems. These patents expire at various dates
from 1997 to 2013. The Company has applied for corresponding foreign patents
where it deemed such applications necessary. The Company has also applied for
seven other patents in the United States with respect to its household drinking
water products and for corresponding foreign patents. No assurance can be given
that any patents applied for will be issued or that patents currently held or
new patents, if issued, will be valid or will provide any significant
competitive advantage to the Company.
COMPETITION
The Company competes with a number of companies in the manufacture and
marketing of household water filtration and purification systems. The most
significant competitors in this market currently are Teledyne, Inc., Culligan,
Health-O-Meter, Pollenex, Brita U.S.A. (a subsidiary of Clorox Company) and Mr.
Coffee, Inc. As this market develops, the Company may experience increased
competition from public water utilities, appliance manufacturers and consumer
electronics companies.
The Company is not aware of any other company which manufactures
hand-operated desalinators. The Company competes with several other companies in
the manufacture and sale of small-scale motorized reverse osmosis desalinators.
These companies include HRO (a division of Standard Communications Corp.), Sea
Recovery Corp. and Village Marine Tec.
The Company also competes with several companies in the manufacture of
water filters and purifiers for personal and recreational uses. These companies
include General Ecology, Inc., Katadyn U.S.A., Inc., Mountain Safety Research
Corporation (a subsidiary of Recreational Equipment, Inc.), SweetWater, Inc. and
Timberline, Inc.
The Company competes in the sale of drinking water systems on the basis
of the design, performance and value of those products.
MANUFACTURING
The principal raw materials utilized in the Company's manufacturing
operations are engineered thermoplastics, stainless steel and filtration media.
The Company relies on third party machine shops and injection molders to
manufacture components to the Company's specifications. The assembly, testing,
quality control and packaging of the Company's products are conducted by the
Company's employees at its facilities in Minneapolis, Minnesota.
The Company purchases reverse osmosis membranes from FilmTec, a
division of Dow Chemical Corporation, pursuant to a three-year renewable
agreement with FilmTec which expires in December 1999. The Company also
purchases microfilters and filter media for its portable and household drinking
water systems from other manufacturers pursuant to long-term contracts. The
interruption of any of these supply relationships could have a material adverse
effect on the Company's results of operations.
GOVERNMENT REGULATION
The manufacture, marketing, advertising and distribution of water
purification devices containing active ingredients, such as iodine, is regulated
by the EPA. The EPA generally requires registration of the manufacturer, the
active ingredients and the applicable device and its packaging prior to sale of
the product. Registration entails obtaining scientific data as to the efficacy
and toxicity of the device and its active ingredients. The PUR Explorer,
Portable and Scout, all of which contain iodinated resin, have been registered
by the EPA as "microbiological water purifiers."
In 1986, the EPA issued a tentative protocol (the "1986 Protocol"),
applicable to all manufacturers, for the testing and certification of all
microbiological water purification devices, including those offered by the
Company. The 1986 Protocol requires that to be registered as a "microbiological
water purifier," a device must remove, kill or inactivate all types of
disease-causing microorganisms from the water, including bacteria, viruses and
protozoan cysts, so as to render the processed water safe for drinking. The 1986
Protocol does not require the removal of all traces of iodine from the treated
water. Because small amounts of iodine may be present in water treated by the
Company's antimicrobial water purifiers, the Company, in its labeling, advises
persons with thyroid problems and pregnant women to consult their doctors before
use of such products. Management believes the Company's water purification
products satisfy all the 1986 Protocol requirements.
In addition to EPA regulation, some states require registration of
household water filtration and purification products. The Company believes that
its current household products, and any future household products it develops,
comply and will comply with state regulations applicable to such products. There
can be no assurance, however, that such state registration requirements will not
result in delays in introduction of these products in certain markets.
The Company is also subject to regulation with respect to the handling
and disposal of the elemental iodine used in manufacturing resins. The Company
believes it is in compliance with applicable rules, and that it has properly
disposed of such material. There can be no assurance that more restrictive and
costly requirements will not be imposed in the future.
EMPLOYEES
At December 31, 1996, the Company had approximately 274 full-time
employees and contract workers, of whom 23 were involved in research and
development, 190 in manufacturing, assembly and testing, 35 in sales, marketing,
technical and customer service, and 26 in administration. None of the Company's
employees is represented by a labor union or is covered by a collective
bargaining agreement. The Company has not experienced any work stoppages and
believes that its employee relations are excellent.
ITEM 2. PROPERTIES
The Company is headquartered in a leased facility of 51,648 square feet
at 2229 Edgewood Avenue South, Minneapolis, Minnesota 55426, pursuant to a
seven-year lease which expires on December 31, 2000. The Company has leased a
warehouse facility of 13,136 square feet at 13310 Industrial Park Boulevard
North, Minneapolis, Minnesota 55441, pursuant to a three-year lease which
expires on July 14, 1998. The Company has leased an additional manufacturing
facility of 9,875 square feet at 6407 Welcome Avenue, Brooklyn Park, MN 55428
pursuant to a one year lease that expires on July 31, 1997. The Company has
leased additional manufacturing space of 4,000 square feet at 8712 Monticello
Lane, Maple Grove MN 55365 pursuant to a two-year lease which expires November
31, 1998. The Company has leased additional warehouse facility of 7,500 square
feet at 9200 10th Avenue North, Golden Valley, MN 55427 on a month to month
lease.
The Company initiated construction on a new facility in 1996 with plans
to consolidate all facilities into one leased facility of 100,000 square feet,
pursuant to a 10 year lease which expires on April 4, 2007. The Company believes
this new facility will provide sufficient space to support the Company's
anticipated requirements for the near-term, and that additional or alternate
facilities would be available on terms acceptable to the Company if the
Company's operations were to require additional space.
The Company owns manufacturing and engineering equipment, located at
its facilities in Minneapolis, used in its assembly operations and research and
development efforts. Such equipment is available from a variety of sources, and
the Company believes that it currently owns or can readily acquire equipment
required for its current and anticipated levels of operations.
ITEM 3. LEGAL PROCEEDINGS
The Company was notified January 10, 1997 of a complaint filed by Brita
for patent infringement on its pitcher products. The complaint names Recovery
Engineering and other water filtration companies as defendants. The Company was
aware of Brita's patent prior to developing its own design and is confident it
does not infringe upon Brita's patent. The Company plans to defend vigorously
its right to market and sell these products. The Company from time to time is
involved in various legal proceedings arising in the normal course of business,
none of which is expected to result in any material loss to the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during
the quarter ended December 31, 1996.
PART II
ITEM 5. MARKET FOR COMMON STOCK AND RELATED STOCKHOLDER MATTERS
Common stock market and dividend information on page 16 of the Annual
Report to Shareholders is incorporated herein by reference.
ITEM 6. SELECTED FINANCIAL DATA
Selected financial data on page 16 of the Annual Report to Shareholders
is incorporated herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results
of Operations on pages 8 and 9 of the Annual Report to Shareholders is
incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The report of independent auditors and financial statements included on
pages 10 through 16 of the Annual Report to Shareholders are incorporated herein
by reference.
Quarterly Results of Operations Information on page 16 of the Annual
Report to Shareholders is incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS
The information contained on pages 2 through 5 of the Proxy Statement
with respect to directors and executive officers of the Company, is hereby
incorporated by reference in response to this item.
The information contained on page 13 of the Proxy Statement with
respect to compliance with Section 16(a) of the Exchange Act is hereby
incorporated by reference in response to this item.
ITEM 11. EXECUTIVE COMPENSATION
The information contained on pages 5 through 11 of the Proxy Statement
with respect to executive compensation, is hereby incorporated by reference in
response to this item.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information contained on pages 12 and 13 of the Proxy Statement
with respect to security ownership of certain beneficial owners and management,
is hereby incorporated by reference in response to this item.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information contained on page 9 of the Proxy Statement with respect
to certain relationships and related transactions, is hereby incorporated by
reference in response to this item.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of the report:
1. Financial Statements.
The following financial statements of Recovery Engineering, Inc.
included in the Annual Report to Shareholders, are incorporated by
reference in Item 8:
Balance sheets - December 31, 1996 and 1995
Statements of operations - Years ended December 31, 1996, 1995, and
1994
Statement of changes in shareholders' equity - Years ended December 31,
1996, 1995, and 1994
Statements of cash flows - Years ended December 31, 1996, 1995, and
1994
Notes to financial statements - December 31, 1996
2. Financial Statement Schedules.
The following schedule supporting financial statements for the three
years ended December 31, 1996 is filed herewith:
Schedule II Valuation and Qualifying Accounts.
All other schedules for which provision is made in the
applicable accounting regulations of the Securities and Exchange
Commission are not required under the related instructions or are
inapplicable and therefore have been omitted.
3. Listing of Exhibits.
EXHIBIT
NO. DESCRIPTION
--- -----------
3.1 Articles of Incorporation of Recovery Engineering, Inc., as
amended
3.2 Bylaws of Recovery Engineering, Inc.
10.1 Lease Agreement dated December 31, 1993, between Lemar and
Recovery Engineering, Inc.
10.1.1 First Amendment to Lease Agreement dated December 2, 1994
between Lemar and Recovery Engineering, Inc.
10.1.2 Second Amendment to Lease Agreement dated June 23, 1995
between Lemar and Recovery Engineering, Inc.
10.3 Form of Distributor Agreement
10.4 Sales Contract dated May 30, 1991, between Dow Chemical
U.S.A. and Recovery Engineering, Inc.
10.4.1 Addendum dated September 9, 1993, to Sales Contract dated
May 30, 1991, between Dow Chemical U.S.A. and Recovery
Engineering, Inc.
10.6 Recovery Engineering, Inc. 1986 Stock Option Plan, as
amended *
10.7 Recovery Engineering, Inc. 1993 Director Stock Option Plan *
10.8 Recovery Engineering, Inc. 1994 Stock Purchase Plan *
10.9 Recovery Engineering, Inc. 1994 Stock Option and Incentive
Plan *
10.11 Contract between Department of the Air Force and Recovery
Engineering, Inc. dated July 13, 1993 (PUR Survivor-35)
10.12 Contract between Department of the Air Force and Recovery
Engineering, Inc. dated July 13, 1993 (PUR Survivor-06)
10.13 Lease Agreement dated July 12, 1995 between Minneapolis
Industrial Properties, II, Inc. and Recovery Engineering,
Inc.
10.14 Credit Agreement dated March 7, 1996 between First Bank
National Association and Recovery Engineering, Inc.
10.15 Contract between Department of the Air Force and Recovery
Engineering, Inc. dated August 1, 1995 (PUR Survivor-06) **
10.16 Contract between Department of the Air Force and Recovery
Engineering, Inc. dated September 22, 1995 (PUR
Survivor-35) **
10.17 Securities Purchase Agreement dated July 19, 1996 by and
among the Company and the Goldman Sachs Limited Partnerships
10.18 Registration Rights Agreement dated July 19, 1996 by and
among the Company and the Goldman Sachs Limited
Partnerships.
10.19 Executive Restriction Agreement dated July 19, 1996 by and
among the Company, the Goldman Sachs Limited Partnerships
and the Executive.
10.20 Lease Agreement dated November 8, 1997 between Ryan
Construction and Recovery Engineering, Inc.
11.1 Statement re Computation of Earnings (Loss) Per Share
13.1 1996 Annual Report to Shareholders
21.1 Subsidiaries of Recovery Engineering, Inc.
23.1 Consent of Ernst & Young LLP
* Management Contracts
** The Company has requested confidential treatment of portions
of such exhibit.
(b) Reports on Form 8-K
In November 1996, the Company filed a report on Form
8-K relating to the sale of $15 million principal
amount of convertible notes to certain investment
partnerships affiliated with Golman Sachs.
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant has
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
RECOVERY ENGINEERING, INC.
(Registrant)
Dated: March 24, 1997. /s/ Brian F. Sullivan
-------------------------------------
Brian F. Sullivan
President and Chief Executive Officer
In accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated.
Dated: March 24, 1997. /s/ Brian F. Sullivan
-------------------------------------
Brian F. Sullivan
President, Chief Executive Officer
and Director
(principal executive officer)
Dated: March 24, 1997. /s/ Charles F. Karpinske
-------------------------------------
Charles F. Karpinske
Chief Financial Officer
(principal financial and accounting
officer)
Dated: March 24, 1997. /s/ John R. Albers
-------------------------------------
John R. Albers
Director
Dated: March 24, 1997. /s/ John E. Gherty
-------------------------------------
John E. Gherty
Director
Dated: March 24, 1997. -------------------------------------
Sanjay H. Patel
Director
Dated: March 24, 1997.
-------------------------------------
William D. Thompson
Director
Dated: March 24, 1997. /s/ William F. Wanner, Jr.
-------------------------------------
William F. Wanner, Jr.
Director
Dated: March 24, 1997. -------------------------------------
Ronald W. Weber
Director
/s/ Richard J. Zeckhauser
Dated: March 24, 1997. -------------------------------------
Richard J. Zeckhauser
Director
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBIT INDEX TO FORM 10-K
For the year ended Commission File No.: 0-21232
December 31, 1996
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
RECOVERY ENGINEERING, INC.
- ---------------------------------------------------------------------------------------------------------
Method of
Exhibit Filing
- ------- ------
<S> <C> <C>
3.1 Article of Incorporation of Recovery Engineering, Inc., as amended Note 9
3.2 Bylaws of Recovery Engineering, Inc. Note 10
10.1 Lease Agreement dated December 31, 1993, between Lemar Note 2
and Recovery Engineering, Inc.
10.1.1 First Amendment to Lease Agreement dated December 2, 1994 between Note 4
Lemar and Recovery Engineering, Inc.
10.1.2 Second Amendment to Lease Agreement dated June 23, 1995 between
Lemar and Recovery Engineering, Inc. Note 5
10.3 Form of Distributor Agreement Note 1
10.4 Sales Contract dated May 30, 1991, between Dow Chemical U.S.A.
and Recovery Engineering, Inc. Note 1
10.4.1 Addendum dated September 9, 1993, to Sales Contract dated May 30, 1991,
between Dow Chemical U.S.A. and Recovery Engineering, Inc. Note 3
10.6 Recovery Engineering, Inc. 1986 Stock Option Plan, as amended Note 1 T
10.7 Recovery Engineering, Inc. 1993 Director Stock Option Plan Note 2 TT
10.8 Recovery Engineering, Inc. 1994 Stock Purchase Plan Note 2 TT
10.9 Recovery Engineering, Inc. 1994 Stock Option and Incentive Plan Note 2 TT
10.11 Contract between Department of the Air Force and Recovery Engineering,
Inc. dated July 13, 1993 (PUR Survivor-35) Note 3
10.12 Contract between Department of the Air Force and Recovery Engineering,
Inc. dated July 13, 1993 (PUR Survivor-06) Note 3
10.13 Lease Agreement dated July 12, 1995 between Minneapolis Industrial
Properties II, Inc. and Recovery Engineering, Inc. Note 5
10.14 Credit Agreement dated March 7, 1996 between First Bank National Association
and Recovery Engineering, Inc. Note 5
10.15 Contract between Department of the Air Force and Recovery Engineering,
Inc. dated August 1, 1995 (PUR Survivor-06) Note 5+
10.16 Contract between Department of the Air Force and Recovery Engineering,
Inc. dated September 22, 1995 (PUR Survivor-35) Note 5+
10.17 Securities Purchase Agreement dates July 19, 1996 by and among the Company Note 6
and the Limited Partnerships (including form of Note attached thereto as Exhibit
10.18 Registration Rights Agreement dated July 19, 1996 by and among the Company Note 7
and the Limited Partnerships.
10.19 Executive Restriction Agreement dated July 19, 1996 by and among the Note 8 TT
Company, the Limited Partnerships and the Executive.
10.20 Lease Agreement dated November 8, 1997 between Ryan Construction and
Recovery Engineering, Inc. Filed herewith
11.1 Statement re computation of earnings (loss) per share Filed herewith
13.1 1996 Annual Report to Shareholders (only those pages expressly incorporated Filed herewith
by reference shall be deemed filed with the commission)
21.1 Subsidiaries of Recovery Engineering, Inc. Filed herewith
23.1 Consent of Ernst & Young LLP Filed herewith
</TABLE>
- ----------------------
Note 1 Incorporated by reference to the same numbered Exhibit to the
Company's Registration Statement on Form SB-2 (No. 33-57826C), which
was declared effective March 4, 1993, pursuant to Rule 12b-32.
Note 2 Incorporated by reference to the same numbered Exhibit to the
Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1993 (File No. 0-21232)
Note 3 Incorporated by reference to the same numbered Exhibit to the
Company's Registration Statement on Form SB-2 (No.33- 78292), which
was declared effective June 2, 1994, pursuant to Rule 12b-32.
Note 4 Incorporated by reference to the same numbered exhibit to the
Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1994 (File No. 0-21232)
Note 5 Incorporated by reference to the same numbered Exhibit to the
Company's Annual Report form 10-K for the fiscal year ended December
31, 1995 (File No. 0-21232)
Note 6 Filed as Exhibit 4.1 to the Company's Report on Form 8-K, dated July
19, 1996 (File No. 0-21232) and incorporated herein by reference.
Note 7 Filed as Exhibit 99.1 to the Company's Report on Form 8-K, dated July
19, 1996 (File No. 0-21232) and incorporated herein by reference.
Note 8 Filed as Exhibit 99.2 to the Company's Report on Form 8-K, dated July
19, 1996 (File No. 0-21232) and incorporated herein by reference.
Note 9 Incorporated by reference to Appendix 1 to the Company's proxy
statement, (File - 021232) for it's annual meeting of shareholders on
April 25, 1996.
Note 10 Incorporated by reference to Appendix 2 to the Company's proxy
statement, (File - 021232) for it's annual meeting of shareholders
held on April 25, 1996.
+ The Company has requested confidential treatment of portions of such
exhibit.
TT Management Contracts
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
RECOVERY ENGINEERING, INC.
(in thousands)
<TABLE>
<CAPTION>
Additions
-------------------------------
Balance at Charged to
Beginning of Costs and Charged to Other Balance at End
Description Period Expenses Accounts Deductions of Period
- ------------ ------------ ---------- ---------------- ---------- --------------
<S> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1996
Reserves & allowances deducted from
asset accounts:
Allowance for uncollectible accounts $ 57 $315 $160(1) $212
Reserve for inventory obsolescence $112 $430 $316(2) $226
YEAR ENDED DECEMBER 31, 1995
Reserves & allowances deducted from
asset accounts:
Allowance for uncollectible accounts $ 32 $119 $ 94(1) $ 57
Reserve for inventory obsolescence $ -- $112 $ -- $112
YEAR ENDED DECEMBER 31, 1994
Reserves & allowances deducted from
asset accounts:
Allowance for uncollectible accounts $ 24 $ 16 $ 8(1) $ 32
</TABLE>
(1) Uncollectible accounts written off, net of recoveries.
(2) Inventory written off
RYAN COMPANIES US, INC.
Landlord
and
RECOVERY ENGINEERING, INC.
a Minnesota Corporation
Tenant
-----------------------------------------
SINGLE TENANT LEASE AGREEMENT
-----------------------------------------
Dated as of November 8, 1996
<TABLE>
<CAPTION>
TABLE OF CONTENTS
SECTION PAGE
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<S> <C>
1. Leased Property; Fixed Term..................................................1-2
1.2. Early Access.............................................................2
1.3. Land Option............................................................2-3
1.4. Options to Expand......................................................3-5
1.5. Option to Renew..........................................................5
2. Basic Rent, etc..............................................................5-6
2.1. Basic Rent...............................................................5
2.2. Basic Rent; Manner of Payment............................................5
2.3. Development Agreement..................................................5-6
3. Additional Rent............................................................... 6
4. Net Lease; No Counterclaim, Abatement, etc.....................................6
5. Condition and Use of Property................................................6-7
6. Maintenance and Repairs........................................................7
7. Alterations and Additions, etc...............................................7-8
8. Tenant's Equipment.............................................................8
9. Utility Services...............................................................8
10. No Claims Against Landlord, etc................................................8
11. Indemnification by Tenant....................................................8-9
12. Inspection, etc................................................................9
13. Payment of Taxes, etc..........................................................9
14. Compliance with Legal and Insurance Requirements, Instruments ..............9-10
15. Liens, Easements, etc.........................................................10
16. Permitted Contests.........................................................10-11
17. Insurance..................................................................11-13
17.1. Risks to be Insured.................................................11-12
17.2. Policy Provisions......................................................12
17.3. Delivery of Policies, Insurance Certificates...........................12
17.4. Waiver of Insurable Claims.............................................13
18. Hazardous Materials........................................................13-14
19. Damage to or Destruction of Property.......................................14-15
19.1. Tenant to Give Notice..................................................14
19.2. Restoration............................................................14
19.3. Total Destruction......................................................14
19.4. Application of Insurance Proceeds......................................15
20. Taking of Property.........................................................15-17
20.1. Tenant to Give Notice; Assignment of Awards, etc.......................15
20.2. Partial Taking......................................................15-16
20.3. Total Taking...........................................................16
20.4. Application of Awards, etc..........................................16-17
21. Certificate as to No Event of Default, etc.; Financial Statements..........17-18
21.1. Certification of Tenant as to No Event of Default, etc.................17
21.2. Certificate of Landlord.............................................17-18
21.3. Financial Statements...................................................18
22. Right of Landlord to Perform Tenant's Covenants, etc.......................18-19
23. Assignments, Subleases, Mortgages, etc. ...................................19-20
23.1. Assignments, Subleases, etc. by Tenant.................................19
23.2. Assignments, Mortgages, etc. by Landlord............................19-20
24. Events of Default; Termination.............................................20-22
25. Repossession, etc.............................................................22
26. Survival of Tenant's Obligations; Damages..................................22-23
26.1. Termination of Lease Not to Relieve Tenant of Obligations..............22
26.2. Current Damages.....................................................22-23
26.3. Final Damages..........................................................23
27. Litigation Costs..............................................................23
28. Remedies Cumulative........................................................23-24
29. Modification, Acceptance of Surrender.........................................24
30. End of Lease Term.............................................................24
31. Notices, etc...............................................................24-25
32. Short Form or Memorandum......................................................25
33. Quiet Enjoyment...............................................................25
34. Miscellaneous..............................................................25-26
35. Broker Commission.............................................................26
36. Moving Allowance..............................................................26
37. Warranty of Title.............................................................26
38. Definitions................................................................26-28
39. Contingencies of Tenant's Obligations......................................28-29
</TABLE>
Exhibit A: Description of Property
Exhibit B: Plans and Specifications
Exhibit C: Basic Rent Schedule
Exhibit D: Land Option Estimate Statement
Exhibit E: Description of Expansion Area
Exhibit F: Existing Encumbrances on Property and Expansion Area
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), dated as of November 8, 1996,
between Ryan Companies US, Inc., (hereinafter referred to as "Landlord"), and
Recovery Engineering, Inc. (hereinafter referred to as "Tenant").
WITNESSETH THAT:
In consideration of the mutual agreements contained in this Lease,
Landlord and Tenant agree with each other as follows:
1. Leased Property, Fixed Term. Upon and subject to the conditions
and limitations set forth below, Landlord leases to Tenant, and Tenant leases,
and rents from Landlord, the following property ("Property") in the area
crosshatched described in Exhibit A attached hereto and made a part hereof,
together with all buildings, improvements and structures now or hereafter
located on the Property (the "Improvements") subject, however, to such of the
Permitted Exceptions set forth on Exhibit A hereto.
The Improvements shall be constructed by Landlord in a good and
workmanlike manner and in accordance with the plans and specifications for the
same identified on Exhibit B attached hereto and shall comply with all Legal
Requirements, including without limitation the Americans With Disabilities Act
of 1990. Landlord and Tenant have each signed a set of such plans and
specifications identified on Exhibit B which establish the time table for
completion of construction of the Improvements (the "Approved Plans").
TO HAVE AND TO HOLD the Property for a fixed term (the "Fixed Term")
commencing on the ____ day of ___________, and expiring at midnight on the last
day of the one hundred twentieth full calendar month following the commencement,
unless this Lease shall sooner terminate as provided herein.
The blank with respect to the commencement of the term ("the
"Commencement Date") shall be completed as follows: i) April 1, 1997 or, if
later, ii) fifteen (15) days after the issuance by the City of Brooklyn Park of
a final Certificate of Occupancy for the Improvements. Landlord shall have the
right to insert the commencement date as so determined or the said date may be
set by amendment hereto if requested by either party. In the event a dispute
occurs as to whether or not the Landlord's work in construction of the
Improvements is completed, the certificate of Landlord's architect that the
required Certificate of Occupancy has been issued and that the Improvements are
completed in accordance with the Approved Plans shall be conclusive and binding
upon the parties hereto.
1.2. Early Access. Tenant and their vendors shall have early
access to the facility to install communication systems; and if the facility is
ready, production equipment, and warehouse material handling equipment and
racks. Basic Rent shall commence on the Commencement Date. No unusual penalties
or incentives will apply to early access or project completion. All early access
by Tenant shall in no way interfere with Landlord's schedule for completion of
the building, provided however that, without limiting the foregoing, Landlord
shall cooperate in all reasonable respects with Tenant in the installation of
its communications systems and other equipment. All Tenant's vendors seeking
access to the building prior to substantial completion thereof must be
signatories to the AFL-CIO Building Trades Council Contract, unless otherwise
agreed by Landlord.
1.3 Land Option. Tenant shall have the option to expand an
additional 88,790 square feet and add 245 parking stalls on land adjacent to the
initial building improvements. This option is annual and automatically renews
each year for the entire initial lease term unless terminated sooner. Upon six
months prior written notice at the end of the initial lease term, Tenant shall
have the one time right to capitalize the remaining land into the deal at $1.98
per square foot. The lease constant applied to the additional capitalized land
will be equal to a debt constant plus sixty basis points. The debt constant will
be calculated using a twenty year loan amortization.
At any time Tenant expands, the land area designated for the expansion shall be
included in the actual cost of the expansion at a static $1.98 per square foot
of land, and such land area shall be removed from the land option area. The land
option cost will be reduced accordingly.
The annual land option cost shall be paid at the lease commencement date and
each anniversary thereafter and equal to the annual carry cost on the land. Such
carry costs shall be the actual annual real estate taxes and installments on
future special assessments paid by Landlord (which may be paid directly by
Tenant), plus actual % annual interest charge on $1.98 per square foot of land
option area, plus costs to insure against liability and any costs to maintain
the property.
With respect to costs to maintain the property, attached hereto as Exhibit D is
a proposed budget for first option year. Prior to the commencement of each
option year, Landlord shall provide Tenant with a maintenance budget for such
coming option year, in substantially the form of Exhibit D. The amount of such
maintenance expenses included within such carry costs shall not exceed the
proposed budget in any option year unless the excess costs were not reasonably
foreseeable at the time of submission of the proposed budget for such option
year or unless otherwise agreed in writing by Tenant.
On September 1, 1999 the Resolution Trust Corporation ("RTC") financing on the
land option area balloons at which time the interest charged on the land option
area will be equal to Landlord's cost of borrowing. Any changes or adjustments
to the annual carry costs or land option area during the year shall be
recalculated and adjusted on each anniversary of the land option.
However, at the time of any expansion whereby the land option area becomes too
small to construct a minimum of 38,400 square feet of future building expansion,
Tenant will include 100% of the land option area into the capital cost of such
expansion with a corresponding increase in rent, thereby reducing the land
option area and corresponding land option cost to nothing. If Landlord
determines that such is the case after exercise by Tenant of any extension
option for less than all remaining option area, Landlord will so notify Tenant
in writing whereupon Tenant shall have ten (10) days after receipt of such
notice to withdraw exercise of such expansion option.
Tenant will give Landlord a three month prior written notice of its intent to
allow the land option to expire on any given anniversary date. Should Tenant not
give such prior written notice to Landlord, than this land option will
automatically renew with the land option fee due on any such anniversary date.
If Tenant fails to pay the option cost on any given anniversary date, Tenant
shall be in default and Landlord will give Tenant notice of such default. Tenant
shall have seven days to cure such default or the land option shall terminate at
Landlord's option.
1.4 Options to Expand. Tenant shall have the right to expand
during the initial lease term up to an approximately 88,790 square feet in
increments of space at any time as set forth in Section 1.3 above. For any
expansions to the Premises, the entire Lease will be extended so the remaining
term will be ten years. The land constituting the expansion area is shown
crosshatched on Exhibit E attached hereto and incorporated herein (the
"Expansion Area"). Landlord shall execute and deliver to Tenant, upon request by
Tenant, a memorandum in recordable form to be recorded against the Expansion
Area giving notice to the public of the expansion option described herein.
The starting Base Rent on any expansions will be determined by multiplying a
lease constant by the capital cost of the expansions. The lease constant will be
equal to a debt constant plus 60 basis points. The debt constant will be
calculated using a 20 year loan amortization, and competitively bid interest
rate and loan amount at the time of the expansions. The added 60 basis points is
to compensate the Landlord for the equity needed to finance the expansions. The
Base Rent on any expansion space shall be adjusted on the same terms and
conditions as the initial space in every respect with appropriate prorations.
For the purpose of calculating any expansion Base Rent, the capital cost of the
expansions shall be the land cost at $1.98 per square foot of land, plus the
actual cost of materials and labor for building and site construction, plus the
actual cost of design, plus a 4% contractor's fee plus construction project
management time (based on an hourly charge of $75.00 during years 1-2 or $85.00
during years 3 - 10). No development fees or Landlord fees will be charged to
the cost of the expansions. The cost of all materials and labor for building and
site construction shall be competitively bid.
At such time as Tenant's option to expand the Building expires without exercise
for any reason whatsoever, Landlord shall be solely responsible for the
maintenance of the land designated for expansion.
Landlord shall further be solely responsible for payment of real estate taxes
and special assessments attributable to the land designated for expansion. The
real estate tax and installments of special assessments attributable to the land
designated for expansion shall be determined by applying the tax rate to the
value placed by the assessing authority upon the land designated for expansion.
At such time as Tenant's option to expand the Building expires for any reason
whatsoever, Landlord shall have the option of building additional improvements
for lease by third parties. All such construction shall be performed in a good
and workmanlike manner without material interference with the use and occupancy
of the Premises by Tenant.
Upon Landlord's election to build additional improvements, Landlord and Tenant
shall enter into an amendment to this Lease, in form and substance reasonably
satisfactory to Landlord and Tenant, providing for:
a. Maintenance of all common areas by Landlord;
b. Procurement by Landlord of the insurance provided for in Section
17 of this Lease;
c. Payment of Taxes, as provided for in Section 13 of this Lease, by
Landlord;
d. Payment by Tenant to Landlord of a prorata share of all common
area maintenance costs, insurance costs and Taxes.
1.5 Option to Renew. Tenant shall have four (4) five (5) year
renewal options with nine (9) months prior written notice of renewal. The
renewal terms will commence upon completion of the initial lease term (as
extended by exercising expansion options). The base rent for each renewal term
shall be equal to the previous base rent multiplied by three percent (3%) annual
(simple - not compounded) increase since the last base rent increase. Renewal
options will cover the initial space as well as any expansion spaces. In any
event, any option to renew shall not lapse until such time as Landlord shall
have given Tenant written notice of the expiration of such option and Tenant
shall have failed to exercise such option within ten days after receipt of such
written notice.
2. Basic Rent.
2.1. Basic Rent. Net basic rental ("Basic Rent") shall be
payable during the Fixed Term in the amounts and at the times specified on
Exhibit C hereto. Basic rent for any partial month during the term of this Lease
shall be prorated based on a fraction, the numerator of which is the number of
days during such month included within the term hereof and the denominator of
which is the total number of days in such month.
2.2. Basic Rent Net; Manner of Payment. The Basic Rent and all
other sums payable to Landlord hereunder shall be payable in such currency of
the United States of America as at time of payment shall be legal tender for the
payment of public and private debts and shall be paid to Landlord at Landlord's
address set forth above or to such other person or address as Landlord from time
to time may designate. The Basic Rent shall be net to Landlord so that this
Lease shall yield to Landlord the full amount of the installments of Basic Rent
throughout the term of this Lease without deduction or setoff, except as
expressly set forth herein.
2.3. Development Agreement. Landlord is a party to or will
enter into that certain Development Agreement approved by the City Council of
the City of Brooklyn Park, pursuant to which the City of Brooklyn Park has or
will execute a Tax Increment Note (as that term is defined in the Development
Agreement). Provided Tenant is not then in default, Landlord hereby assigns,
conveys, and transfers unto Tenant all of Landlord's right, title, and interest
to the Payment Amounts (as defined in said Note) to be made by the City of
Brooklyn Park to Landlord pursuant to said Development Agreement and Note.
Landlord shall execute a financing statement or other comparable instrument in
favor of Tenant evidencing the foregoing assignment. In the event the City of
Brooklyn Park is unable or unwilling to deliver the Payment Amounts directly to
Tenant, Landlord hereby covenants that, within seven (7) Business Days after
receipt of each of the Payment Amounts in collected funds, Landlord shall make a
payment to Tenant equal to the Payment Amount received by Landlord.
3. Additional Rent. Tenant will also pay, from time to time as
provided in this Lease or on demand of Landlord, as additional rent (the
"Additional Rent") (a) all other amounts, liabilities and obligations that
Tenant herein assumes or agrees to pay, and (b) interest at the rate of two
hundred basis points over the reference or base rate published from time to time
by First Bank National Association, Minneapolis, Minnesota ("Default Rate") per
annum on such of the foregoing amounts, liabilities and obligations as are
payable by Tenant that are not paid when due or within fifteen (15) days
thereafter and that Landlord shall have paid on behalf of Tenant, from the date
of payment thereof by Landlord until paid by Tenant and on all overdue
installments of Basic Rent and other sums payable under this Lease, from the due
date thereof until payment.
4. Net Lease; No Counterclaim, Abatement, etc. Except as otherwise
set forth herein, this Lease is a net lease, and the Basic Rent, Additional Rent
and all other sums payable hereunder shall be paid without setoff or deduction.
Except as otherwise expressly provided in this Lease, Tenant shall at all times
remain bound by this Lease and shall at all times remain obligated to pay the
stated rentals required by this Lease. Except as specifically set forth herein
to the contrary, Tenant shall in no event have any right to terminate this
Lease.
5. Condition and Use of Property. Tenant upon acceptance of
possession acknowledges that Tenant will be fully familiar with the physical
condition of the Property and has received the same in good and clean order and
condition, and that the Property complies in all respects with all requirements
of this Lease, except for (i) latent defects and (ii) defects or conditions of
which Tenant shall have given written notice to Landlord within thirty (30) days
after the Commencement Date. Tenant may use the Property for any office,
warehouse, manufacturing or other purposes allowed by applicable zoning
ordinances and will not do or permit any act or thing that is contrary to any
Legal Requirement or Insurance Requirement, or that may materially impair the
value or utility of the Property or any part thereof, or that constitutes a
public or private nuisance or waste of the Property or any part thereof.
Landlord shall make available for Tenant's benefit: (i) all
warranties concerning the Improvements or any part thereof, including, without
limitation, all electrical, plumbing, mechanical, heating and air conditioning
systems, and components thereof; (ii) the warranty of Ryan Companies US, Inc.,
the general contractor, that the Improvements conform to the requirements of the
plans and specifications and the general contract, which warranty shall run for
a period of not less than two (2) years after completion of the Improvements
and, with respect to all utility lines serving the Property (from the property
line to the exterior of the Building), shall run for a period of not less than
four (4) years after completion of the Improvements. Such warranties shall be
assigned by Landlord to Tenant in the event Tenant purchases the Property from
Landlord prior to the expiration of any of the foregoing warranties.
6. Maintenance and Repairs. Tenant at its expense will keep the
Property and the adjoining sidewalks, curbs, and all means of access to the
Property in good and clean order and condition, subject to ordinary wear and
tear, and will promptly, at its own expense, make all necessary or appropriate
repairs, replacements and renewals thereof, whether interior or exterior,
ordinary or extraordinary, foreseen or unforeseen. All repairs, replacements and
renewals shall be at least equal in quality, utility and class to the original
condition of the Property. Except as set forth in Section 24(g), Tenant waives
any right created by any law now or hereafter in force to make repairs to the
Property at Landlord's expense. Landlord shall have no obligation to repair,
rebuild or maintain the Property, except as set forth below.
Landlord shall be solely responsible, at its expense, for all
necessary repairs and/or replacements of the roof, foundation, walls and other
related structural components of the Improvements, except only for such repairs
and/or replacements caused by Tenant's negligence, willful misconduct or failure
to perform its routine maintenance as herein provided.
7. Alterations and Additions, etc. Tenant at its expense may make
reasonable alterations of and additions to the Improvements or any part thereof;
provided, however, that any such alteration or addition (a) shall not change the
general character of the Improvements located on the Property, or reduce the
fair market value of any such Improvements immediately before such alteration or
addition (assuming the Property was then being maintained in accordance with the
terms of this Lease), (b) shall be effected with due diligence, in a good and
workmanlike manner and in compliance with all Legal Requirements, Insurance
Requirements and the provisions of Section 14 hereof, and (c) shall be fully
paid for by Tenant upon its construction or installation on the Property. All
alterations of and additions to the Improvements, other than Tenant's Equipment,
shall immediately become the property of Landlord and shall constitute a part of
the Property.
8. Tenant's Equipment. All Tenant's Equipment shall be the property
of Tenant. Tenant will immediately repair at its expense all damage to the
Property caused by any removal of Tenant's Equipment therefrom, whether effected
by Tenant or Landlord.
9. Utility Services. Tenant will pay or cause to be paid all charges
of any nature for utilities, communications and other services rendered at the
Property, subsequent to the Commencement Date.
10. No Claims Against Landlord, etc. Nothing contained in this Lease
shall constitute any consent or request by Landlord or any Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Property or any part thereof, nor
as giving Tenant any right, power or authority to contract for or permit the
performance of any labor or services or the furnishing of any materials or other
property in such fashion as would permit the making of any claim against
Landlord or any Mortgagee in respect thereof.
11. Indemnifications. Except to the extent that any of the following
shall result from any intentional act or omission of Landlord, its agents,
employees, or contractors, Tenant shall indemnify and save harmless Landlord
against all claims, costs, liability, damage or other expense, including
attorneys' fees, which may be imposed upon, incurred by, or asserted against
Landlord by reason of all or any of the following: (i) any death, damage or
injury to persons or property occurring in or on the Property, or arising out of
Tenant's activities on the Property; (ii) any negligence on the part of Tenant,
its agents, contractors, licensees or invitees; (iii) any litigation commenced
by or against Tenant to which Landlord is made a party without any fault on the
part of Landlord; and (iv) any failure on the part of Tenant to perform or
comply with any covenant or agreement required to be performed or complied with
by Tenant hereunder.
Except the extent that any of the following shall result, in whole
or in part, from the negligent or intentional acts or omissions of Tenant or its
agents, employees, contractors, licensees or invitees, Landlord agrees to
indemnify and hold Tenant harmless from any and all claims, costs, liability,
damage or other expense, including attorneys' fees, which may be imposed upon,
incurred by or asserted against Tenant by reason or all or any of the following:
(i) any death, damage or injury to persons or property occurring or on the
Property, if and to the extent the same is caused by the negligence or willful
acts of Landlord, its agents, contractors or employees, (ii) any litigation
commenced by or against Landlord to which Tenant is made a party without any
fault on the part of Tenant, and (iii) any failure on the part of Landlord to
perform or comply with any covenant or agreement required to be performed or
complied with by Landlord hereunder.
12. Inspection, etc. Landlord and its authorized representatives may
enter the Property at all reasonable times (provided that no such entry shall be
made without reasonable advance notice or shall unreasonably interfere with the
conduct of Tenant's business) for the purpose of (a) inspecting the same, (b)
exhibiting the Property for the purpose of sale or mortgage or other financing,
(c) at any time within six (6) months prior to the expiration of the term of
this Lease, exhibiting the Property for the purpose of leasing same, and (d) at
any time after Tenant shall have abandoned the Property, displaying thereon
advertisements for sale or letting. Landlord shall not have any duty to make any
such inspection and shall not incur any liability or obligation for not making
any such inspection. No such entry shall constitute an eviction of Tenant.
13. Payment of Taxes, etc. Subject to the provisions of Section 16
hereof, Tenant will pay, promptly as and when the same shall become due and
payable all "Taxes" relating to the Property payable during the term of the
Lease. For purposes hereof, the term "Taxes" shall include all real estate
taxes, assessments for public improvements levied against the Property after the
date hereof, all public and governmental charges constituting a lien against the
Property or which are otherwise in the nature of a tax on real property. The
term "Taxes" shall expressly exclude any estate, inheritance, succession,
capital levy, corporate franchise, gross receipts, transfer or income tax of
Landlord, or any tax on rentals, unless, as to taxes on rentals, such tax is
imposed on owners of real property only and is in the nature of, or in
substitution for, a tax on real property. Tenant will furnish to Landlord, upon
request, official receipts or other proof reasonably satisfactory to Landlord
evidencing payment of any Taxes in accordance with the requirements of this
Section 13. Landlord represents and warrants that, as of the date hereof, there
are no special assessments levied or pending with respect to the Property and
the Landlord has not received notice of any proposed public improvements which
may result in a special assessment against the Property. Landlord shall provide
to Tenant with all reasonable diligence copies of any notices from any
applicable governmental authority of any proposed public improvements which may
result in a special assessment against either the Property or the Expansion
Area.
14. Compliance with Legal and Insurance Requirements, Instruments.
Subject to the provisions of Section 16 hereof, Tenant at its expense will
promptly (a) comply with all Legal Requirements and Insurance Requirements, and
(b) procure, maintain and comply with all permits, licenses and other
authorizations required for any use of the Property. Alterations to the Property
or any Improvement required by governmental authorities based on Legal
Requirements which relate to real property generally (and not just Tenant's
particular use of the Property) shall be performed by Landlord at its cost, in a
good and workmanlike manner with as little interference with Tenant's operations
as reasonably possible. The cost of such improvements shall be amortized over
the reasonable useful life thereof, as determined either by mutual agreement
between Landlord and Tenant or by an independent accountant reasonably
acceptable to Landlord and Tenant. All labor and materials in connection with
such alterations shall be competitively bid.
After completion of such alterations, each monthly installment of
Basic Rent hereunder shall be increased by an amount necessary to amortize
Landlord's actual cost of constructing such alterations over the useful life
thereof, prorated based on a fraction the numerator of which is the number of
remaining calendar months in the Lease term and the denominator of which is a
total number of calendar months in the useful life of the alteration.
15. Liens, Easements, etc. Tenant will not directly or indirectly
create or permit to be created or to remain, and will discharge, any mortgage,
lien, or encumbrance with respect to the Property or any part thereof or
Tenant's interest therein, or the Basic Rent, Additional Rent or any other sum
payable under this Lease; provided, however, that the foregoing shall not be
applicable in connection with any mortgage, lien or encumbrance created or
caused by Landlord.
16. Permitted Contests. Tenant at its expense may contest by
appropriate legal proceedings conducted in good faith and with due diligence,
the amount or validity or application, in whole or in part, of any Taxes or lien
therefor or any Legal Requirement or Insurance Requirement or the application of
any instrument of record affecting the Property or any part thereof or any
claims of mechanics, materialmen, suppliers or vendors or lien therefor, and, if
permitted by law, may withhold payment of the same pending such contest;
provided, however, that (a) such proceedings shall suspend the collection
thereof from Landlord, the Property and any sums payable hereunder, (b) neither
the Property nor any part thereof or interest therein (or any sums payable
hereunder) would be in any danger of being sold, forfeited or lost, nor would
the use or occupancy of the Property (or any part thereof) be adversely
affected, (c) Landlord shall not be in any danger of any civil or criminal
liability by reason thereof and neither the Property nor any part thereof or
interest therein (or any sums payable hereunder) would be subject to the
imposition of any lien as a result of such failure, and (d) Tenant shall have
either (i) paid the disputed amount under protest, or (ii) furnished to Landlord
such security as Landlord may deem reasonably necessary to insure the ultimate
payment of the contested amount and to prevent the forfeiture of any sums
payable to Landlord or any Mortgagee hereunder. Tenant shall give prompt written
notice to Landlord of the commencement of any contest referred to in the
preceding sentence, providing a reasonably detailed description thereof, and
Landlord shall, at no substantial cost to Landlord, cooperate with Tenant with
respect to any such contest. Tenant agrees that each such contest shall be
promptly prosecuted to final conclusion, and Tenant shall indemnify and save
Landlord and any Mortgagee harmless from and against any and all losses,
judgments, decrees and costs (including, without limitation, reasonable
attorneys' fees and expenses) incurred and payable during the term of this
Lease. Tenant agrees that it will, promptly after final determination of each
such contest, fully pay and discharge the amounts which shall finally be levied,
assessed, charged or imposed or determined to be payable, together with all
penalties, fines, interest, costs and expenses incurred in connection therewith,
and perform all acts the performance of which shall be finally ordered or
decreed as a result thereof.
17. Insurance.
17.1. Risks to be Insured. Tenant, at its expense, will
maintain with insurers authorized to issue insurance in the State of Minnesota
and having an A.M. Best rating of "A" or better or otherwise approved by
Landlord and any Mortgagee (a) insurance with respect to the Improvements
against loss or damage by fire, lightning and other risks from time to time
included under "all-risk" policies and against loss or damage by sprinkler
leakage, water damage, collapse, vandalism and malicious mischief, in amounts
sufficient to prevent Landlord and Tenant from becoming co-insurers of any loss
under the applicable policies, and in any event in amounts not less than 100% of
the actual replacement cost of the Improvements (initially determined as of the
date on which such insurance is originally issued, and subsequently
re-determined on the basis on an annual review of the actual replacement cost of
the Improvement), as determined at the request of Landlord (such insurance shall
also include at least nine (9) months rental loss coverage), (b) comprehensive
general liability insurance against claims arising out of or connected with the
possession, use, leasing, operation or condition of the Property in such amounts
as are usually carried by persons operating similar properties in the same
general locality but in any event with a combined single limit of not less than
$3,000,000 for all claims with respect to property damage and personal injury
and death with respect to any one occurrence, (c) explosion insurance in respect
of any steam and pressure boilers and similar apparatus located on the Property
in amounts not less than those required by subdivision (b) above, (d) in the
event that the Property shall at any time be used as anything other than for
office and warehouse purposes and manufacturing purposes of a nature consistent
with Tenant's current business, such other insurance against such risks and in
such amounts as is customary and as Landlord shall reasonably request. In
addition, during any period of repair, alteration or addition to the Property,
Tenant shall obtain and keep in effect Builder's Risk insurance in such amounts
as Landlord shall reasonably request. Tenant may effect any insurance not
required by this Lease, but any such insurance effected by Tenant on the
Property shall be for the benefit of Landlord, Tenant and any Mortgagee, as
their interests may appear, and shall be subject to all of the provisions of
Section 17.2 hereof. The insurance required under this Section 17.1 may be
subject to a deductible in an amount not exceeding $10,000.00 and may be
effected under a blanket policy or policies covering the Property and other
property and assets not constituting part of the Property; provided, however,
that any such policy shall specify the portion of the total coverage of such
policy or policies that is allocated to the Property and shall, in all other
respects, comply with the requirements of this Section 17.
17.2. Policy Provisions. All insurance maintained by Tenant
pursuant to Section 17.1 hereof shall (a) name Landlord (individually and as a
fiduciary), Tenant and any Mortgagee as insured parties, (b) provide that all
insurance proceeds for losses of less than $100,000 shall, except in the case of
comprehensive general liability insurance be adjusted by and be payable to
Tenant to be used by Tenant, to the extent necessary, for Restoration, (c)
provide that all insurance proceeds for losses of $100,000 or more shall (except
in the case of comprehensive general liability insurance and workers'
compensation insurance) be adjusted by Landlord and Tenant jointly and shall be
payable to any Mortgagee by means of a standard mortgagee loss payable
endorsement (or to Landlord, if there is not Mortgagee), to be held in trust
pursuant to the terms of this Lease, (d) provide that if all or any part of such
policy is canceled, terminated or expires, the insurer will forthwith give
notice thereof to each named insured party and loss payee and that no
cancellation, reduction in amount or material change in coverage thereof shall
be effective until at least 30 days after delivery to each named insured party
and loss payee of written notice thereof, and (e) be reasonably satisfactory in
all other respects to Landlord and any Mortgagee.
17.3. Delivery of Policies; Insurance Certificates. Tenant
will deliver to Landlord and any Mortgagee the originals of all insurance
policies (or, in the case of blanket policies, certificates thereof) and any
amendments or supplements thereto with respect to the Property that Tenant is
required to maintain pursuant to this Section 17, together with evidence as to
the payment of all premiums then due thereon, and not later than 30 days prior
to the expiration of any policy, a certificate of the insurer evidencing the
replacement or renewal thereof.
17.4. Waiver of Subrogation. Landlord and Tenant hereby agree
to the extent that a loss is covered by insurance (or is required to be insured
against hereunder) each hereby waives any and all rights of recovery against the
other for any loss or damage to the Property or any Improvements or the contents
contained therein, for loss of income on account of fire or other casualty, or
for injury sustained on the Property or any Improvements; and each parties'
aforesaid policies or insurance shall contain appropriate provisions recognizing
this mutual release and waiving all rights of subrogation by the respective
insurance carriers.
18. Hazardous Materials. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Property any such materials or substances except to use in the ordinary
course of Tenant's business. Without limitation, hazardous substances and
materials shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq., any applicable state or local laws and the regulations
adopted under these acts. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
hazardous materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges if such requirement applies
to the Property and only if and to the extent Landlord has a reasonable basis to
believe that a material release has occurred on or about the Property in
violation of Environmental Laws which has not been reported by Tenant to the
Minnesota Pollution Control Agency (the "MPCA"). In any event, Landlord shall
give Tenant at least fifteen (15) days prior written notice of its intent to
conduct such testing, identifying the suspected release. If Tenant reports the
suspected release in writing to the MPCA during such fifteen (15) day period,
Tenant shall not be responsible for the cost of tests undertaken by Landlord
relating thereto. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous substances or materials
on the Property. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this Lease from any release of hazardous materials on the
Property occurring while Tenant is in possession, or elsewhere if caused by
Tenant or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the Lease Term.
Landlord warrants that, to the best of its knowledge the Property
is, as of the date of this Lease, free of hazardous substances and materials.
Landlord shall indemnify Tenant from any and all damages, liabilities, costs and
expenses (including without limitation reasonable attorney's fees), paid or
incurred by Tenant as a result of the release of hazardous materials on the
Property occurring prior to Tenant's possession.
19. Damage to or Destruction of Property.
19.1. Tenant to Give Notice. In case of any damage to or
destruction of the Improvements located on the Property (or any part of such
Improvements), the Restoration of which is reasonably estimated to cost more
than $100,000.00, Tenant will promptly give notice thereof to Landlord,
generally describing the nature and extent of such damage or destruction and
setting forth Tenant's best estimate of the cost of Restoration.
19.2. Restoration. In case of any damage to or destruction of
the Improvements located on the Property (or any part of such Improvement),
other than a Total Destruction, Tenant, whether or not the insurance proceeds,
if any, on account of such damage or destruction shall be sufficient for the
purpose, at its expense will promptly commence and complete (subject to
Unavoidable Delays) Restoration of such Improvements.
19.3. Total Destruction. In case of (a) the destruction during
the last two years of the Fixed Term of all of the Improvements located on the
Property, or (b) the destruction during the last two years of the Fixed Term of
such a substantial part of the Improvements located on the Property that, in the
good faith judgment of the Board of Directors of Tenant, Restoration of such
Improvements is not economically feasible (any such destruction being
hereinafter referred to as a "Total Destruction"), Tenant may, by notice to
Landlord given within 60 days after the date of such destruction, terminate this
Lease.
In the event of such termination of this Lease by the Tenant
as a result of such Total Destruction, the obligation of the Tenant to pay Basic
Rent and all other obligations of the Tenant hereunder shall be prorated as of
the date of termination. The Tenant agrees that, upon termination of this Lease
by Tenant as aforesaid, all insurance proceeds with respect to the Property and
the Improvements shall be automatically assigned and paid over solely to the
Landlord and the Tenant shall have no right, title or interest in the same.
19.4. Application of Insurance Proceeds. Tenant hereby
irrevocably assigns to Landlord any compensation or insurance proceeds to which
Tenant may become entitled by reason of Tenant's interest in the Property if the
Property or any part thereof is damaged or destroyed by fire or other casualty.
Any compensation or insurance payment of more than $100,000 shall be paid to and
held in trust and applied in accordance with Section 19.2 or 19.3 hereof, as the
case may be, by Mortgagee or, if there is no Mortgagee or if Mortgagee does not
require that it hold such compensation, by Landlord; provided, however, that any
such compensation or insurance payment which is not in excess of $100,000 shall
be paid directly to Tenant (if no Event of Default than exists hereunder) and
shall be expended by Tenant in connection with the Restoration of the Property
(with the balance of such proceeds, if any, being retained by Tenant upon the
completion of such Restoration).
20. Taking of Property.
20.1. Tenant to Give Notice; Assignment of Awards, etc. In
case of a Taking, or the commencement of any proceedings or negotiations that
might result in a Taking, in respect of which the Restoration of the Property is
reasonably estimated to cost more than $10,000, Tenant will promptly give notice
thereof to Landlord, generally describing the nature and extent of such Taking
or the nature of such proceedings or negotiations and the nature and extent of
the Taking that might result therefrom. Except as Tenant claims as described in
Section 20.4b, Tenant hereby irrevocably assigns, transfers and sets over to
Landlord all rights of Tenant to any award or payment on account of any Taking
of Tenant's Leasehold and irrevocably authorizes and empowers Landlord, with
full power of substitution, in the name of Tenant or otherwise, to file and
prosecute what would otherwise be Tenant's claim for any such award or payment
and to collect, receipt for and retain the same.
20.2. Partial Taking. In the case of a Taking other than a
Total Taking, (a) this Lease shall remain in effect as to the portion of the
Property remaining immediately after such Taking, with an equitable abatement or
reduction of Basic Rent, Additional Rent or any other sum payable hereunder, and
without any change or reduction in the amount of insurance required pursuant to
Section 17 hereof, and (b) Tenant, whether or not the awards or payments, if
any, on account of such Taking shall be sufficient for the purpose, at its
expense will promptly commence and complete (subject to Unavoidable Delays)
Restoration of the Property, except for any reduction in area of the Property
caused by such Taking; provided, however, that in case of Taking for temporary
use ("Temporary use" being defined for all purposes herein as any taking for
less than nine consecutive months) Tenant shall not be required to effect any
Restoration until such Taking is terminated. In the event of any taking, Taking
other than a Total Taking (as a result of which this Lease is not terminated),
Basic Rent payable hereunder shall be equitably reduced.
20.3. Total Taking. In case of the Taking during the Fixed
Term of the Property in its entirety (or all of the Improvements located
thereon) or the Taking during the Fixed Term (other than for temporary use) of
such a substantial part of the Property (or the Improvements located thereon)
that, in the good faith judgment of the Board of Directors of Tenant, either (a)
the portion of the Property (or the Improvements located thereon) remaining
after such Taking is (and after Restoration would be) unsuitable for use by
Tenant in the operation of its business, or (b) Restoration of the Property (or
the Improvements located thereon) is not economically feasible, this Lease shall
terminate as of the date of such Taking.
In the event of the termination of this Lease as a result of
any such Taking, the Tenant hereby releases all right, title, claim and interest
in and to any award or payments received or payable as a result of any such
Taking of the Improvements and/or the Property, except that the Tenant shall be
entitled to any separate award for the loss of its trade fixtures or equipment
or moving allowances, if any such separate award is made.
20.4. Application of Awards, etc. All awards and payments
received by or payable to Landlord on account of a Taking (less the actual
costs, fees and expenses incurred in connection with the collection thereof, for
which the Person incurring the same shall be reimbursed from such award or
payment, together with any interest or other income earned on such awards from
the investment thereof and any other interest paid on such awards prior to
disbursement hereunder) shall be paid to and held in trust and applied in
accordance with this Lease by Mortgagee, or, if there is no Mortgagee or if
Mortgagee does not require that it hold such award, by Landlord, and shall be
applied or dealt with as follows:
(a) All such awards and payments actually received on account
of a Taking (other than a Total Taking) shall be applied as follows:
(i) Subject to subparagraph (ii) below, such awards
and payments shall be applied to pay the cost of the Restoration of the
Property, such application to be effected substantially in the same manner and
subject to the same conditions as provided in paragraph (a) of Section 19.4
hereof with respect to insurance proceeds; provided, however, that in case the
total amount of such awards and payments shall not exceed $50,000, such awards
and payments shall be paid over to Tenant, if no Event of Default then exists
hereunder, upon Tenant's request and without compliance with any of such
conditions.
(ii) In case of a Taking for a temporary use, such
awards and payments shall be paid to Tenant and there shall be no abatement in
Tenant's obligation to pay Basic Rent and Additional Rent hereunder during the
period of such temporary use; provided, however, that if any portion of such
awards and payments is made by reason of any damage to or destruction of the
Property (or the Improvements thereon) during such Taking for temporary use,
such portion shall be held and applied as provided in subparagraph (i) above
after such Taking is terminated.
(iii) The balance, if any, of such awards and payments
not required to be held or applied in accordance with subparagraphs (i) and (ii)
above, shall be paid to Landlord following completion of the Restoration.
(b) All such awards and payments received by or payable to
Landlord on account of a Total Taking with respect to the Property (or the
Improvements thereon) during the Fixed Term or any Extended Term shall, as
contemplated by Section 20.3 hereof, be paid over or assigned to Landlord;
provided, however, that Tenant shall be entitled to submit claims for, and
retain any separate awards to Tenant based on: (i) its moving expenses, (ii) any
unamortized value of any leasehold improvements paid by Tenant, and (iii) any
loss to Tenant based on the difference between the Basic Rent payable hereunder
(including any renewal Term hereof available to Tenant under Section 1.5 hereof)
and the reasonable cost for comparable replacement space over the same period.
21. Certificate as to No Event of Default, etc.; Financial
Statements, etc.
21.1. Certificate of Tenant as to No Event of Default, etc.
Tenant will deliver to Landlord within 10 days following Landlord's request
therefor (but in no event more often than three times in any twelve-month
period), (a) a Certificate of Tenant stating (i) that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that this
Lease is in full force and effect, as modified, and stating the modifications),
(ii) the date to which the Basic Rent has been paid and that all Additional Rent
payable on or before the date of such Certificate has been paid, and (iii) that
no Event of Default exists hereunder, or, if any such Event of Default exists,
specifying the nature and period of existence thereof and what action Tenant is
taking or has taken with respect thereto, and (b) such information with respect
to Tenant and the Property or any part thereof as from time to time may
reasonably be requested.
21.2. Certificate of Landlord. Within 10 days following
Tenant's request therefor, but in no event more often than three times in any
twelve-month period (which request shall (i) state that it is made pursuant to
this Section 21.2 and that Tenant proposes, pursuant to Section 23.1 hereof, to
assign its interest in this Lease or sublet a portion of the Property to a
Person identified in such request, and (ii) be accompanied by a copy of this
Lease and each modification hereof or amendment hereto, if any, to and including
the date of such request, and a Certificate of Tenant stating that such copies
are true, correct and complete copies of this Lease and of all such
modifications and amendments), Landlord will deliver to Tenant a Certificate of
Landlord stating (a) that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in full force and
effect, as modified, and stating the modifications), (b) the date to which Basic
Rent has been paid hereunder and (c) whether or not an Event of Default has been
declared by Landlord hereunder, it being agreed that (and any such Certificate
shall state that) no rights or remedies of Landlord hereunder or otherwise
resulting from any condition, event or circumstance that would entitle Landlord
to declare an Event of Default (and with respect to which condition, event or
circumstance no Event of Default has been declared on or before the date of such
Certificate) shall be waived, impaired or diminished in any respect by reason of
any such Certificate or any statement made therein. No failure of Landlord to
deliver any such Certificate shall release, discharge or otherwise affect any of
Tenant's or Landlord's rights or obligations hereunder.
21.3. Financial Statements. Tenant will deliver to Landlord as
soon as reasonably possible, and in any event within 120 days after the close of
each fiscal year of Tenant, a copy of (i) the consolidated balance sheet of
Tenant as of the end of such fiscal year, (ii) consolidated statements of income
and shareholders' equity for Tenant with respect to such fiscal year, and (iii)
consolidated statements of changes in financial position for Tenant with respect
to such fiscal year, setting forth in each case in comparative form the
corresponding figures for the previous fiscal year, all in reasonable detail,
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except for any changes
required by the Financial Accounting Standards Board and other changes
consistent with generally accepted accounting principles) and accompanied by an
opinion of independent public accountants of recognized national standing.
22. Right of Landlord to Perform Tenant's Covenants, etc. If Tenant
shall fail to make any payment or perform any act required to be made or
performed by it hereunder, Landlord, upon not less than thirty (30) days notice
(five (5) business days as to payment of rent) to Tenant (except in cases of
emergency that threaten bodily injury or material property damage), but without
waiving or releasing any obligation or default, may make such payment or perform
such act for the account and at the expense of Tenant, and may enter upon the
Property and the Improvements or any part thereof for such purpose and take all
such action thereon as, in the opinion of Landlord, may be necessary or
appropriate therefor. No such entry shall constitute an eviction of Tenant. All
reasonable payments so made by Landlord and all reasonable costs and expenses
(including, without limitation, attorneys' fees and expenses) incurred in
connection therewith or in connection with the performance by Landlord of any
such act shall constitute Additional Rent hereunder.
23. Assignments, Subleases, Mortgages, etc.
23.1. Assignments, Subleases, etc. by Tenant. If no Event of
Default shall have occurred and be continuing Tenant may, after obtaining the
written consent of Landlord, which consent shall not be unreasonably withheld,
delayed or conditioned, at any time, sublet the Property or any part thereof,
and may assign its interest in this Lease; provided, however, that (a) Tenant
shall deliver to Landlord a fully executed counterpart of each such sublease or
assignment promptly after execution thereof, and (b) no assignment, whether by
operation of law, consolidation, merger, a sale of stock or otherwise, shall be
effective prior to the execution by the assignee and delivery to Landlord of an
instrument, reasonably satisfactory in form and substance to Landlord, assuming
all of the obligations of Tenant under this Lease. No assignment or sublease
made as permitted by this Section 23.1 shall affect or reduce any obligations of
Tenant or any rights of Landlord hereunder, and all obligations of the Tenant
originally named hereunder shall continue in full force and effect as the
obligations of a principal and not of a guarantor or surety, to the same extent
as though no assignment or subletting had been made. However, an assignment of
the Lease will be allowed in the event Tenant is acquired or merged with, or its
assets are acquired by, another company who's then combined net worth is equal
to or greater than Tenant's, but in no event, less than Tenant's tangible net
worth as of August 1, 1996.
23.2. Assignments, Mortgages, etc. by Landlord. The interest
of Landlord in this Lease and in and to the Property or any part thereof may, at
any time and from time to time, be sold, conveyed, assigned or otherwise
transferred, without the prior written consent of Tenant, and upon any sale or
conveyance of the Property as an entirety or any assignment or other transfer
(other than for the purpose of securing indebtedness) by any party lessor of its
interest in this Lease and in and to the Property, such party lessor shall be
completely relieved of and from any and all obligations not theretofore accrued
or arisen (i.e., not based on events theretofore occurring or conditions
theretofore existing) under this Lease or otherwise with respect to the
Property, and such party lessor shall have no further obligations whatsoever to
any party lessee, except to the extent that any such obligation accrued or arose
prior to the date of such sale, conveyance, assignment or transfer, and Tenant
shall thereupon look only to the then owner of Landlord's estate in the Property
for the performance of any obligations of Landlord hereunder. Landlord may also
from time to time mortgage or assign, by way of pledge or otherwise, any or all
of the rights, in whole or in part, of Landlord under this Lease to any Person
as security for the indebtedness or other obligations of Landlord. From and
after any such mortgage or assignment and to the extent provided in the
instrument effecting such mortgage or assignment, (a) such Mortgagee may enforce
any and all of the terms of this Lease to the extent so assigned as though such
Mortgage had been a party hereto to the extent the Mortgagee assumes in writing
the obligations of Landlord hereunder and (b) a copy of all notices, demands,
consents, approvals and other instruments given by Tenant hereunder shall also
be delivered to such Mortgagee, if such Mortgagee shall have provided Tenant
with written notice of its address for such purposes. No such assignment shall
limit or restrict Tenant's rights hereunder.
24. Events of Default; Termination. If any one or more of the
following events ("Events of Default") shall occur (whatever the reason
therefor, and whether voluntary or involuntary or by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court of
any rule or regulation of any administrative or governmental body):
(a) if Tenant shall fail to pay any installment of Basic Rent
or Additional Rent, or other sum required to be paid by Tenant hereunder on the
date the same becomes due and payable and such failure continues for more than
five (5) Business Days after written notice of such failure has been provided to
Tenant by Landlord; or
(b) if Tenant shall fail to perform or comply with any term of
this Lease (other than those referred to in clause (a) above) or any term of any
instrument related hereto pursuant to which Tenant undertakes obligations or
makes agreements for the benefit of Landlord or any Mortgagee and, in any such
case, such failure shall continue for more than 30 days after an Officer of
Tenant received notice (from any source) or otherwise obtains knowledge of such
non-performance or noncompliance; provided, however, that in the case of any
such failure that is susceptible of being cured but that cannot with diligence
be cured within such 30-day period, if Tenant shall promptly commence to cure
the same and shall thereafter prosecute the curing thereof with diligence, the
period within which such failure may be cured shall be extended for such further
period as shall be necessary for the curing thereof with diligence; or
(c) if any material representation or warranty made by Tenant
herein, in any document or certificate furnished by Tenant or any Mortgagee in
connection herewith or therewith or pursuant hereto or thereto, or any material
representation or warranty made by Tenant in any assignment or reassignment by
Landlord of this Lease shall be incorrect in any material respect as of the date
when made; or
(d) if the Property or the Improvements shall be abandoned and
without maintenance and security; or
(e) if Tenant shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing; or
(f) if an involuntary case or other proceeding shall be
commenced against Tenant seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undischarged and unstayed for a period of 90 days, or if an order
for relief shall be entered against Tenant under the federal bankruptcy laws as
now or hereafter in effect; then, and in any such event, Landlord may at any
time thereafter, during the continuance of any such Event of Default, give a
written termination notice to Tenant specifying a date (not less than five days
from the date on which such notice is given) on which this Lease shall
terminate, and, on such date, subject to the provisions of Section 26 hereof
relating to the survival of Tenant's obligations hereunder, the term of this
Lease shall terminate by limitation and all rights of Tenant under this Lease
shall cease. All reasonable costs and expenses incurred by or on behalf of
Landlord (including, without limitation, attorneys' fees and expenses)
occasioned by any default by Tenant under this Lease shall constitute Additional
Rent hereunder.
(g) Landlord's Default. Any of the following occurrences,
conditions or act of Landlord shall constitute a "Landlord Default": (a)
Landlord's failure to make any payments of money due Tenant hereunder within ten
(10) days after the receipt of written notice from Tenant that same is overdue;
or (b) Landlord's failure to perform any nonmonetary obligation of Landlord
hereunder within thirty (30) days after receipt of written notice from Tenant to
Landlord specifying such default and demanding that the same be cured; provided
that, if such default cannot with due diligence be wholly cured within such
thirty (30) days, Landlord shall have such longer period as may be reasonably
necessary to cure the default, so long as Landlord proceeds promptly to commence
the cure of same within such thirty (30) day period and diligently prosecutes
the cure to completion and provided further that in the case of any emergency,
Tenant shall be required to give only such notice as is reasonable under the
circumstances.
Upon the occurrence of a Landlord Default, at Tenant's option, in addition to
any other remedies which it may have, and without its actions being deemed a
cure of Landlord's default. Tenant may (i) pay or perform such obligations and
offset Tenant's reasonable and actual cost of performance, plus interest at the
Default Rate, against the rent and other charges due Landlord hereunder unless,
by written notice to Tenant given within ten (10) days after receipt of notice
of default from Tenant, Landlord contests whether a Landlord Default has
occurred or is continuing, in which case such right of offset shall only be
effective if final, non-appeal judgment against Landlord shall have been entered
by a court of competent jurisdiction; or (ii) sue for damages.
25. Repossession, etc. If an Event of Default shall have occurred
and be continuing, Landlord, whether or not the term of this Lease shall have
been terminated pursuant to Section 24 hereof, may enter upon and repossess the
Property or any part thereof by legal process, summary proceedings, ejectment or
otherwise, and may remove Tenant and all other persons and any and all property
therefrom. Landlord shall be under no liability for or by reason of any such
entry, repossession or removal, except to the extent Landlord, its agents,
employees or contractors, shall be negligent or shall engage in willful
misconduct in connection therewith.
26. Survival of Tenant's Obligations; Damages.
26.1. Termination of Lease Not to Relieve Tenant of
Obligations. No termination of Tenant's right to possession of the Property
(without termination of the Lease) pursuant to Section 24 hereof, and no
repossession of the Property or any part thereof pursuant to Section 25 hereof
or otherwise, and no reletting of the Property, shall relieve Tenant of its
liabilities and obligations hereunder, all of which shall survive such
expiration, termination of possession, repossession or reletting.
26.2. Current Damages. In the event of termination of Tenant's
right to possession of the Property (without termination of the Lease), Tenant
will pay to Landlord the Basic Rent and all Additional Rent and other sums
required to be paid by Tenant up to the time of such termination, and thereafter
Tenant, until the end of what would have been the term of this Lease (including
the Fixed Term) in the absence of such termination or repossession, and, whether
or not the Property or any part thereof shall have been relet, shall be liable
to Landlord for and shall pay to Landlord, as liquidated and agreed current
damages for Tenant's default, (a) the Basic Rent and all Additional Rent and
other sums that would be payable under this Lease by Tenant in the absence of
such termination or repossession, plus, (b) all reasonable expenses directly or
indirectly incurred by Landlord in connection with such termination and
repossession and any reletting effected for the account of Tenant pursuant to
Section 25 hereof (including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorney's fees, employees' expenses,
interest at the Default Rate on all alteration costs and expenses of preparing
for such reletting from the date incurred through the expiration of the then
current term of the Lease, less (c) the proceeds, if any, of such reletting.
Tenant will pay such current damages monthly on the days on which the Basic Rent
would have been payable under this Lease in the absence of such termination,
repossession or reletting, and Landlord shall be entitled to recover the same
from Tenant on each such day. In the event of such termination of Tenant's right
to possession of the Property, Landlord shall make reasonable efforts to
mitigate current damages.
26.3. Final Damages. At any time after any termination of the
Lease pursuant to Section 24 hereof, Landlord shall be entitled to recover from
Tenant and Tenant will pay to Landlord on demand, as and for liquidated and
agreed final damages beyond the date of such demand, (a) an amount equal to the
excess of (i) all past due Basic Rent and Additional Rent plus the present value
of all Basic Rent and Additional Rent that would be payable under this Lease
from the date of such demand (or, if it be earlier, the date to which Tenant
shall have satisfied in full its obligations under Section 26.2 hereof to pay
current damages) for what would be the unexpired term of this Lease in the
absence of such termination, over (ii) the present value of the fair market
rental for the Property at the date of this Lease, which present value shall in
each case be determined by the application of a discount factor of 10% per
annum.
27. Litigation Costs. In the event that any litigation or other
legal proceeding is instituted by either Landlord or Tenant against the other
party hereunder, the prevailing party in such litigation or other legal
proceeding (i.e. the party whose position is substantially upheld therein) shall
be entitled to reimbursement from the non-prevailing party of any and all costs
and expenses., including without limitation reasonable attorney's fees, incurred
by such prevailing party in connection therewith.
28. Remedies Cumulative. Each right, power and remedy of Landlord
provided for in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or attempted exercise by Landlord of any one or more of the rights,
powers or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by Landlord of any or all such other rights, powers or
remedies.
29. Modification, Acceptance of Surrender. No modification,
termination or surrender to Landlord of this Lease and no surrender of the
Property or any part thereof or of any interest therein shall be valid or
effective unless agreed to and accepted in writing by Landlord, and no act by
any representative or agent of Landlord, and no act by Landlord, other than such
a written agreement and acceptance by Landlord, shall constitute an agreement
thereto or acceptance thereof.
30. End of Lease Term. Upon the expiration or earlier termination of
this Lease, Tenant, at its expense, shall quit and surrender to Landlord the
Property in good order and condition, ordinary wear and tear excepted, and, if
requested by Landlord, shall remove, at Tenant's expense, all of Tenant's
Equipment therefrom and shall repair, at Tenant's expense, all damage caused by
such removal.
31. Notices, etc. All notices, offers, acceptances, rejections,
consents and other communications hereunder shall be in writing and shall be
deemed to have been given when delivered or mailed by first class registered or
certified mail, postage prepaid, or sent by a nationally recognized overnight
courier service, addressed:
If to Landlord:
Ryan Companies US, Inc.
c/o Ryan Properties, Inc.
700 International Centre
900 Second Avenue South
Minneapolis, Minnesota 55402
with a copy to:
or at such other address as Landlord shall have furnished to Tenant in writing;
and
If to Tenant:
Recovery Engineering, Inc.
2229 Edgewood Avenue South
Minneapolis, MN 55426
Attn: Chief Financial Officer
with a copy to:
Thomas M. Hart
Winthrop & Weinstine
3200 Minnesota World Trade Center
30 East Seventh Street
St. Paul MN 55101
or at such other address as Tenant shall have furnished to Landlord in writing.
32. Short Form or Memorandum. Landlord and Tenant shall execute and
deliver a short form or memorandum of this Lease, satisfactory in form and
substance to Landlord and Tenant, for recording in the proper office or offices
in each of the states in which the Property is located.
33. Quiet Enjoyment. So long as Tenant shall pay the Basic Rent and
Additional Rent and any other sums payable hereunder as the same become due and
shall fully comply with all of the terms of this Lease and fully perform its
obligations hereunder, Tenant (and any subtenant of Lease permitted pursuant to
the terms of this Lease) shall peaceably and quietly have, hold and enjoy the
Property for the term hereof, subject, however, to all the terms of this Lease.
Notwithstanding anything contained in this Lease to the contrary, it is
specifically understood and agreed that no officer, director or shareholder of
Landlord or any Mortgagee shall have any personal liability in respect of any of
the terms, covenants, conditions or provisions of this Lease. Nothing contained
in this Section 34 shall prohibit Landlord, or any Mortgagee, or their
respective authorized representatives, from entering the Property at reasonable
times and on reasonable prior notice to inspect the same.
34. Miscellaneous. All rights, powers and remedies provided herein
may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law, and are intended to be limited to the extent
necessary so that they will not render this Lease invalid, illegal or
unenforceable under the provisions of any applicable law. If any term of this
Lease or any application thereof shall be invalid or unenforceable, the
remainder of this Lease and any other application of such term shall not be
affected thereby. This Lease may be changed, waived, discharged or terminated
only by an instrument in writing, signed by each of the parties hereto. Subject
to Section 23.2 hereof, this Lease shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and permitted assigns
of the parties hereto. This Lease shall be construed and enforced in accordance
with and governed by the laws of the State of Minnesota. The headings in this
Lease are for the purposes of reference only and shall not limit or otherwise
affect the meaning hereof. This Lease may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
35. Broker Commission. Landlord will pay Tobin Real Estate Company a
$175,000 commission for real estate services, payable 1/2 thirty days after
lease execution and 1/2 upon commencement of the Lease.
36. Moving Allowance. Landlord will pay Tenant up to $150,000 moving
allowance, payable 1/2 by January 1, 1997 and 1/2 upon occupancy of the space.
Such moving allowance shall be amortized over the Lease Term at 10% as
additional rent.
37. Warranty of Title. Landlord warrants to Tenant that, as of the
date hereof, Landlord has good and marketable title to the Property and the
Expansion Area, subject only to those liens and encumbrances described on
Exhibit F attached hereto and incorporated herein.
38. Definitions. As used in this Lease, the following terms shall
have the following respective meanings, applicable both to the singular and
plural forms of the terms so defined:
Additional Rent: the meaning specified in Section 3 hereof.
Basic Rent: the meaning specified in Section 2 hereof.
Business Day: any day other than a day on which banking institutions
in the State of Minnesota are authorized by law to close.
Casualty Termination Date: the meaning specified in Section 19.3
hereof.
Certificate: with respect to any corporation, a certificate of such
corporation signed by the President or a Vice President and by the Treasurer,
Comptroller, Assistant Treasurer or Assistant Comptroller of such corporation.
Estoppel Certificate: the meaning specified in Section 21 hereof.
Event of Default: the meaning specified in Section 24 hereof.
Fixed Term: the meaning specified in Section 1 hereof.
Improvements: the meaning specified in Section 1 hereof.
Indemnified Party: the meaning specified in Section 11 hereof.
Insurance Requirements: all terms of any insurance policy covering
Tenant or covering or applicable to the Property or any part thereof, all
requirements of the issuer of any such policy, and all orders, rules,
regulations and other requirements of the national Board of First Underwriters
(or any other body exercising similar functions) applicable to or affecting the
Property or any part thereof or any use or condition of the Property or any part
thereof.
Legal Requirements: all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all governments, departments,
commissions, boards, courts, authorities (including, without limitations,
environmental protection, planning and zoning authorities), agencies (and other
governmental or quasi-governmental units, whether Federal, state, count,
district, municipal, city or other), and any officials and officers thereof,
foreseen or unforeseen, ordinary or extraordinary, which now or at any time
hereafter may be applicable to Tenant with respect to the Property or to the
Property or any part thereof (including any which may apply to the repair, use
or maintenance of the Property or any part thereof), or any of the adjoining
sidewalks, curbs, vaults and vault space, if any, streets or ways, or any use or
condition of the Property or any part thereof.
Mortgage: any mortgage or other similar instrument from time to time
providing for the assignment as security of Landlord's interest in the Property
or this Lease by the holder thereof.
Mortgagee: the mortgagee under any Mortgage.
Permitted Exceptions: the exceptions set forth on Exhibit A hereto.
Person: a corporation, an association, a partnership, an
organization, a trust, an individual, a government or political subdivision
thereof or a governmental agency.
Property: the meaning specified in Section 1 hereof.
Restoration: in case of damage to or destruction of the Property or
of the Improvements located thereon, the restoration, replacement or rebuilding
of the Property or the Improvements as nearly as possible to its value,
condition and character immediately prior to such damage, destruction or Taking,
with such alterations and additions as may be made at Tenant's election pursuant
to and subject to the conditions of Section 7 hereof, together with any
temporary repairs and property protection which may be required pending
completion of such work.
Taking: a temporary or permanent taking by a government or political
subdivision thereof or by a governmental agency during the term hereof of all or
part of the Property, or any interest therein or right accruing thereto, as the
result of or in lieu of or in anticipation of the exercise of the right of
condemnation or eminent domain, or a change of grade affecting the Property or
any part thereof. Such a taking shall be deemed to have occurred on the date on
which Tenant shall be legally required to relinquish possession of the Property.
Taking Termination Date: the meaning specified in Section 20.3
hereof.
Taxes: the meaning specified in Section 13 hereof.
Tenant: Recovery Engineering, Inc., together with any entity or
entities succeeding to all or substantially all of the assets of it, by merger
or otherwise.
Tenant's Equipment: the trade fixtures and other similar items of
property.
Total Destruction: the meaning specified in Section 19.3 hereof.
Total Taking: the meaning specified in Section 20.3 hereof.
Unavoidable Delays: delays due to acts of God, governmental
restrictions, enemy actions, civil commotion, fire, unavoidable casualty,
strikes, shortages of supplies or other causes beyond the control of Tenant, but
lack of funds shall not be deemed a cause beyond the control of Tenant.
39. Contingencies to Tenant's Obligations. Notwithstanding anything
else contained herein to the contrary, the obligations of Tenant hereunder shall
be contingent upon Landlord satisfying all of the following contingencies:
a) Receipt by Landlord, and delivery to Tenant of copies of all
necessary governmental approvals for construction of the
Improvements within 60 days of the date of this Lease;
b) Receipt and approval by the Tenant of the development
agreement with the City of Brooklyn Park, including, without
limitation, the tax increment financing provisions relating
thereto within 60 days of the date of this Lease;
c) Receipt of a cash payment in the amount of $125,000 from
Landlord, as of the Commencement Date; and
d) Receipt of a non-disturbance agreement, in form and substance
reasonably acceptable to the Tenant, from any current
Mortgagee within 60 days of the date of this Lease.
e) Tenant's legal counsel review of Exhibit F.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
duly executed as of the date first set forth above.
Landlord: Ryan Companies US, Inc.,
By /s/Timothy P. McShane
----------------------------------
Its Vice President
----------------------------------
Tenant: Recovery Engineering, Inc.
By /s/Chuck F. Karpinske
----------------------------------
Its Vice President & CFO
----------------------------------
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing was acknowledged before me this 8 day of November,
1996, by Timothy P. McShane, the Vice President of Ryan Companies US, Inc., a
Minnesota corporation, on behalf of said corporation.
/s/Susan Demerice Kraemer
[STAMP] SUSAN DEMERICE KRAEMER
NOTARY PUBLIC - MINNESOTA
MY COMMISSION EXPIRES JAN. 31, 2000
STATE OF MN )
) SS.
COUNTY OF Hennepin )
The foregoing was acknowledged before me this 8th day of November,
1996, by Chuck Karpinske, the Vice President & CFO of Recovery Engineering,
Inc., a Minnesota corporation, on behalf of said corporation.
/s/Susan Demerice Kraemer
[STAMP] SUSAN DEMERICE KRAEMER
NOTARY PUBLIC - MINNESOTA
MY COMMISSION EXPIRES JAN. 31, 2000
EXHIBIT A
Description of Property
NOW KNOWN AS: A portion of Lot 1, Block 1, Northland Park Division 3, according
to the recorded plat thereof, Hennepin County, Minnesota.
TO BE PLATTED AS: A portion of Lot 3, Block 1, Northland Park Division 4,
according to the recorded plat thereof, Hennepin County, Minnesota, as shown
crosshatched on attached Site Plan.
Attachment follows Exhibit A consisting of draftsman drawing of building site,
including location of proposed building, parking spaces, streets and utility
easements.
EXHIBIT B
Outline Specification for the Design And Construction of Recovery Engineering,
Inc., dated October 22nd, 1996.
EXHIBIT B
OUTLINE SPECIFICATION FOR
THE DESIGN AND CONSTRUCTION OF
RECOVERY ENGINEERING, INC.
NEW FACILITY
BROOKLYN PARK, MINNESOTA
PREPARED BY:
RYAN CONSTRUCTION COMPANY OF MINNESOTA, INC.
OCTOBER 22, 1996
TABLE OF CONTENTS
01000 GENERAL CONDITIONS.....................................................1
02000 SITEWORK...............................................................3
03000 CONCRETE...............................................................4
04000 MASONRY................................................................5
05000 METALS.................................................................5
06000 CARPENTRY AND MILLWORK.................................................5
07000 THERMAL AND MOISTURE PROTECTION........................................6
08000 DOORS AND WINDOWS......................................................6
09000 FINISHES...............................................................7
10000 SPECIALTIES............................................................8
11000 EQUIPMENT..............................................................8
14000 CONVEYING SYSTEMS......................................................9
15000 MECHANICAL.............................................................9
16000 ELECTRICAL.............................................................13
ALLOWANCES...................................................................21
QUALIFICATIONS...............................................................23
LIST OF EXHIBITS.............................................................24
01000 GENERAL CONDITIONS
1. INTENT: This outline specification and the preliminary drawings outline
the general scope of work for the design and construction of a 97,284
square foot gross area (approximate) manufacturing facility for
Recovery Engineering, Inc. ("Tenant") in Brooklyn Park, Minnesota.
Design/Builder shall provide all design, supervision, labor, materials,
equipment, and general requirements necessary for the complete and
timely construction of the project specified herein.
2. DESIGN:
A. Architecture & Engineering: Design/Builder shall prepare a
complete set of working drawings and specifications in
accordance with these outline documents, applicable building
codes and zoning requirements, and the requirements of Tenant.
Additions or deletions to the scope of work incorporated into
the final drawings and specifications at the direction of
Tenant will result in an appropriate adjustment to the
contract price.
B. Interior Design: As a part of this proposal, Design/Builder
shall provide basic interior design services for this project.
This service shall be limited to providing overall floor plans
and selection of interior finish materials. Additional
interior design services available from Design/Builder on a
fee basis include:
1) Space Planning of Moveable Office Work Stations
2) Design of Custom Furniture, Millwork and Fixtures
3) Selection of Furnishings, Artwork and Accessories
4) Inventory Existing Furniture and Equipment
3. SUPERVISION:
A. PROJECT MANAGER: Design/Builder shall assign a Project Manager
to this project who shall be responsible for the complete
execution of all work. The Project Manager's responsibilities
shall include interfacing the project as required with Tenant
throughout the entire design and construction process,
obtaining the required building permits, and managing the
construction process through completion of the project.
B. SUPERINTENDENT: Design/Builder shall assign a Superintendent
to this project who shall be responsible for the supervision
of all field construction in progress. The Superintendent's
responsibilities shall include the scheduling and direct
supervision of field construction forces, interfacing as
required with Building Inspection officials, and ensuring
compliance of work in place with drawings and specifications.
4. CONSTRUCTION SCHEDULE: Design/Builder shall prepare a progress schedule
for the project. This schedule shall indicate the dates for starting
and completion of the various stages of construction, and shall be
updated on a regular basis to reflect the actual progress of the work.
This proposal is based on a six (6) month construction schedule with
building turnover scheduled for April 1997, unless prohibited by
weather related circumstances.
5. TEMPORARY CONSTRUCTION: Design/Builder shall provide all required
temporary construction, temporary facilities and temporary utilities
required to complete project construction including heated
weather-tight enclosures, temporary roadways and parking areas, erosion
control structures, material storage areas, enclosures for tools and
other equipment, a heated and air conditioned field office, temporary
utility services for construction usage, and temporary toilet
facilities as required.
6. CLEAN-UP: Design/Builder shall be responsible for construction trash
removal services and shall at all times keep the building and site free
from accumulation of debris. Upon completion, the building shall be
turned over to Tenant in a "broom clean" condition.
7. WARRANTY: Design/Builder warrants that all materials and equipment
shall be new unless otherwise specified, and shall be free from defects
for a period of one year from the date of substantial completion of the
work. Any extended warranties obtained from suppliers or subcontractors
shall be passed on to the Tenant.
8. INSURANCE: Design/Builder shall maintain Workmen's Compensation
Insurance, Comprehensive Public Liability Insurance, and Builder's Risk
Insurance, "All Risk" form, for this project for the duration of the
work. Deductible losses shall be the responsibility of the
Design/Builder.
9. QUALITY ASSURANCE: Design/Builder shall prepare and implement a Quality
Assurance program for this project. The Quality Assurance program shall
include Independent Agency testing and observation of soils, bituminous
paving, and cast in place concrete, as well as inspection of work in
progress by project designers. The Tenant will have the right to
perform inspections and independent tests at any time.
10. ITEMS FURNISHED BY THE DESIGN/BUILDER: The following items shall be
furnished by Design/Builder.
A. PROPERTY SURVEY: Design/Builder shall retain a registered land
surveyor to prepare a survey for the proposed site. The survey
shall include the property legal description, site boundaries,
easements, existing utility locations and elevations, existing
structures and trees, lines and grades of adjoining streets
and alleys, horizontal control and elevation reference points,
and site topography. The Design/Builder will provide title
information to the surveyor with respect to any restrictions
that may affect project design or construction.
B. SOIL REPORT: Design/Builder shall retain an independent
testing agency to perform subsurface exploration
(soil borings) and prepare an engineered foundation
report (Soil Report) for the proposed project.
Building design and site preparation shall conform to
the requirements of the Soil Report. Field conditions
encountered that are substantially different form
those described in the Soil Report will result in an
equitable adjustment to the Contract Price.
C. HAZARDOUS MATERIALS REPORTS: When there is reason to suspect
the presence of hazardous materials on the site or within an
existing structure, or when such materials are discovered
during construction, the Design/Builder will retain an
independent testing agency to perform investigation and
testing and to prepare a Hazardous Materials Report.
11. PERMITS AND FEES: Design/Builder shall pay for all required building
permits necessary for the construction of the project. S.A.C. and
W.A.C. charges, along with park dedication fees and other assessments,
will be paid by the Design/Builder.
12. BONDS:
A. PERFORMANCE AND PAYMENT BOND: Not required or included.
B. SITE IMPROVEMENT AND LANDSCAPING BONDS: The Tenant will
provide any site improvement or landscaping bonds required by
the local governmental authority. Design/Builder shall assist
the Tenant in preparing any required documentation for the
bonds.
13. RECORD DOCUMENTS: Upon completion of the project, Design/Builder shall
provide the Tenant with a complete set of record documents including
record drawings, a list of Subcontractors used on the project,
manufacturer's warranties, operation and maintenance manuals for major
pieces of equipment, and instruction manuals when appropriate for
building systems.
02000 SITEWORK
1. EARTHWORK: The Design/Builder shall provide all required site clearing,
mass excavation and filling, structural excavation and backfill and
fine grading as required for the proposed building structure, paved
areas, and proper site drainage.
Topsoil shall be stockpiled during construction from on-site materials
and spread over disturbed areas to be landscaped with sod, seed or
other plant materials. All excess soil materials shall remain on site.
2. UTILITIES: The Design/Builder shall provide on-site utility work
required for connection to utility services, contingent upon adequate
utility services located immediately adjacent to the site. Fees imposed
by serving utility companies for the installation of on-site electrical
or gas mains shall be paid by the Design/Builder.
A. SANITARY SEWER: Sanitary sewer service shall be provided
complete including connection to the sewer main in the street
and an on-site sewer main to the building.
B. WATER: Water service shall be provided to the building for
domestic water and fire protection systems complete including
connection to the water main in the street and on-site water
main to the building. In addition, water mains and fire
hydrants shall be provided for fire service as required by the
local Fire Marshall.
C. STORM DRAINAGE: Provisions shall be made for the proper
drainage of storm water from roof, parking, drive and
landscaped areas. Surface drainage shall be utilized wherever
possible.
D. ELECTRICAL: Electrical service to the building shall be
provided by the serving utility company.
E. GAS: Gas service to the building shall be provided by the
serving utility company.
F. TELEPHONE: Telephone service to the building shall be provided
by the serving utility company.
3. LANDSCAPING: Site landscaping shall be designed and installed in
accordance with the requirements of the City of Brooklyn Park and as
approved by Tenant. An allowance of $65,000 is included to cover all
seeding, sodding, imported topsoil, trees, mulch, edging, shrubbery,
retaining walls and any other landscaping or irrigation systems
required by the final landscaping design.
4. BITUMINOUS AND CONCRETE PAVING: Bituminous and concrete paving shall be
provided complete including curb cuts and driveways as indicated on the
site plan.
Paved areas will be designed to meet the Geotechnical Engineer's
recommendations.
Concrete dolly pads shall be provided as indicated on site plan and
shall consist of 6" granular base and 8" of 4000 PSI air entrained
concrete reinforced with welded wire mesh
Cast in place concrete curb and gutter shall be provided at the
perimeter of all paved parking and drive areas.
Parking area striping and traffic markings shall be provided as
indicated on the drawings.
03000 CONCRETE
1. CONCRETE FOUNDATIONS: Concrete foundations shall be spread footings
consisting of strip footings, pads, piers, and cast in place walls
constructed with concrete and reinforcing steel as required by the
final structural design.
A poured concrete foundation wall will be provided for current truck
docks.
2. CONCRETE SLABS: Office area slab on grade shall consist of 4" thick
4,000 P.S.I. unreinforced concrete cast in place on a granular base.
Warehouse area floors shall consist of 5" 4000 P.S.I. concrete
reinforced with fiber mesh, cast in place on a granular base.
Smooth dowel connections shall be provided at slab on grade
construction joints. Sawcut control joints shall be provided for the
control of shrinkage cracking. Warehouse and manufacturing area aisle
floor control joints shall be filled with semirigid joint filler.
Concrete slabs shall be treated with liquid applied curing compound.
4. PRECAST CONCRETE: Exterior warehouse area walls shall be 12" thick,
insulated, Precast concrete panels with a raked exterior finish.
5. SIDEWALKS: Sidewalks shall be constructed with 4000 P.S.I., air
entrained, unreinforced concrete. Sidewalks shall be broom finished
unless indicated otherwise on the drawings.
04000 MASONRY
1. CONCRETE BLOCK: 8" CMU will be used at stoop foundations.
05000 METALS
1. STRUCTURAL STEEL: The structural framing system for the building shall
consist of steel columns, beams or truss girders, bar joists, and metal
roof deck, with column locations as indicated on the drawings.
A minimum clear height of 24' feet shall be provided under the steel
structure in warehouse areas. Bay spacing will be 40' x 40'. The
building structural system shall be designed to accommodate a future
building expansion, as indicated on the drawings.
Metal deck and structural steel will be factory primed gray.
2. MISCELLANEOUS METALS: Steel tread dock stairs, access ladders and
concrete filled pipe bollards shall be provided as indicated on the
drawings.
06000 CARPENTRY AND MILLWORK
1. An allowance of $45,000 is included to cover furnishing and installing
all millwork items shown on the drawings. Millwork items include the
Board Room millwork, bathroom vanities, window sills, closet rods,
shelving, base cabinets, wall cabinets, counters, wood base and other
miscellaneous millwork and trim.
2. MISCELLANEOUS CARPENTRY: Roof cants, curbs, and other miscellaneous
blocking shall be provided for items indicated on the drawings.
07000 THERMAL AND MOISTURE PROTECTION
2. BUILDING INSULATION: The overall building thermal envelope shall
conform to the requirements of the Minnesota Energy Code.
A. EXTERIOR PRECAST WALLS: Exterior Precast wall panels shall
include 2-1/2" of expanded polystyrene insulation to provide
an approximate overall R value of 12.
B. PERIMETER SUBGRADE WALLS: Perimeter masonry or concrete
subgrade foundation walls shall be insulated from top of
footing (or frost line) to bottom of slab with 2" of extruded
polystyrene insulation applied to the inside face of the wall.
C. ROOF INSULATION: Roof areas shall be insulated with rigid
insulation installed over metal deck to provide an approximate
overall R value of 22.
3. ROOFING SYSTEM: The roofing system shall consist of a single-ply, 45
mil, ballasted EPDM membrane over rigid insulation. Roof edge fascia
and other visible flashings shall be prefinished metal. Roof areas
shall drain to exterior downspouts and interior roof drains. Roof slope
will be designed to accommodate future expansion. Roof water will not
drain onto truck dock area. The roofing system shall be guaranteed free
from defects for a period of 10 years by the roofing system
manufacturer. Roof slope shall be designed to accommodate future
expansion.
A ships ladder and roof hatch shall be provided for roof access.
08000 DOORS AND WINDOWS
1. PEDESTRIAN DOORS: Office area doors shall consist of wood doors set in
hollow metal frames. Warehouse area doors shall be flush hollow metal
doors set in hollow metal frames.
A. WOOD DOORS: Wood doors shall be 7'-0, solid core wood, with
stained and sealed, premium grade, plain sliced oak veneer.
B. BIFOLD DOOR: Bifold doors shall be solid core wood, with
stained and sealed, premium grade, plain sliced oak veneer,
mounted on overhead track.
C. HOLLOW METAL DOORS: Hollow metal doors shall be 3'-0" x 7'-0",
flush face panel design. Exterior hollow metal doors shall be
insulated and weatherstripped. Hollow metal doors shall be
painted.
D. HOLLOW METAL FRAMES: Wood doors, hollow metal doors, and
interior glazing shall be set in 2" painted hollow metal
frames.
E. FINISH HARDWARE: Door hardware shall be manufactured by
Schlage, Yale, Corbin or equal commercial grade, US10 finish,
with its function appropriate for its intended usage. The
keying system shall allow doors to be keyed alike within a
given area and tied into a building master.
2. OVERHEAD DOORS: Overhead doors shall be manually operated, 8'-0" 9'-0"
insulated steel sectional doors with high lift track and,
weatherstripping.
3. WINDOW SYSTEM: Windows shall be 1" thick, bronze tinted thermal panes
set in anodized aluminum frames with a thermal-break design. Areas
behind glass spandrel sections shall be insulated.
Entrance door frame finish shall match window framing system. Aluminum
thresholds shall be provided for exterior doors. Panic devices shall be
provided at entrance doors where required by code.
Interior glazed openings shall be 1/4" clear glass set in hollow metal
frames. Framed mirrors shall be provided above toilet room vanities.
09000 FINISHES
1. BUILDING FINISHES: Building interior finishes shall be provided as
indicated in the Room Finish Schedule at the end of this Outline
Specification.
Production Area walls shall not be painted.
Building exterior finishes shall consist of unpainted raked Precast
concrete with aluminum window applications as indicated on the
elevation drawings.
2. OFFICE AREA PARTITIONS: Office area partitions shall be constructed
with steel studs 24" on center and 5/8" gypsum wallboard. All private
offices, conference rooms, Focus Factory, board room, lunch room and
all walls separating office function from manufacturing production
areas will receive acoustical insulation.
3. ACOUSTICAL CEILINGS: Ceilings shall be exposed 1" grid system with lay
in ceiling board units. Units shall be 24" x 48", standard ceiling
tile.
4. CARPETING: Carpet shall be installed by the direct glue method with an
allowance of $15.00 per square yard of floor area, total installed
cost.
5. FLOOR TILE AND BASE: Vinyl composition floor tile shall be 12" x 12" x
1/8" tiles adhesive applied to concrete floors. Base shall be 4" high,
vinyl base adhesive applied to walls with coved profile at hard surface
floors and straight profile at carpet.
6. CERAMIC AND QUARRY TILE: Ceramic and quarry tile shall be set by the
thin-set method. Ceramic wall tile shall be 4" x 4" x 1/4", and ceramic
floor tile shall be 2" x 2" x 1/4". Coved base shall be provided at the
perimeter of ceramic tile floors. Quarry tile shall be 6" x 6" x 1/2"
with bullnose edges and coved base. Sizes indicated are nominal.
7. PAINTING AND WALLCOVERING: Wood doors and other finished hardwood
materials shall be stained, sealed and varnished. Door frames, metal
doors, and miscellaneous metals shall be painted unless provided with
factory finish.
Vinyl wall covering shall be provided as indicated in the Room Finish
Schedule. A $4.00 per lineal yard allowance is included for
wallcovering.
Exposed exterior wood, ferrous metals and equipment shall be painted,
unless provided with a factory applied finish. Paint materials and
coverage shall be acceptable for each application and exposure.
10000 SPECIALTIES
1. TOILET PARTITIONS AND ACCESSORIES: Toilet partitions shall be floor
mounted metal partitions with baked enamel finish complete with door,
latch, rubber stop and coat hook at each stall. Matching screens shall
be provided between urinals. The following accessories shall be
provided:
A. Toilet Tissue Dispenser: One at each toilet stall.
B. Paper Towel Dispenser: One per lavatory, maximum of two per
toilet room.
C. Soap Dispenser: One at each lavatory.
D. Grab Bars: As required by handicapped code.
E. Feminine Napkin Receptacles: One at each women's toilet stall.
F. Feminine Napkin Dispensers: One at each women's toilet room.
2. FIRE EXTINGUISHERS: Fire extinguishers shall be provided as required by
local fire codes. Fire extinguishers shall be housed in painted metal
cabinets in finished areas, and surface mounted in unfinished areas.
3. SIGNS: Code required building and site signs shall be provided
including toilet room signs, handicapped parking signs and traffic
control signs.
4. LOCKERS: Are not included.
5. ENTRANCE MAT: Rigid extruded aluminum floor grid with carpet inserts
and anodized aluminum frame at main entrance is included.
6. BLINDS: Are not included.
11000 EQUIPMENT
1. DOCK LEVELERS: Dock levelers are not included
14000 CONVEYING SYSTEMS
not used
15000 MECHANICAL
1. PLUMBING: A complete plumbing system shall be provided, consisting of
sanitary waste and vent piping, hot and cold water piping and
commercial quality fixtures. Water closets shall be floor hung, flush
valve type. Urinals shall be wall hung, flush valve type. Lavatories
shall be countertop self rimming type. Electric water coolers and
janitor receptors shall be provided as required.
The roof area will receive a piped, interior roof drainage system that
ties directly into the storm drainage system. Above grade, horizontal
portions of the drain pipes shall be insulated. Provisions shall be
made for emergency overflow drainage of ponded roof water, in
accordance with building code requirements via roof scuppers.
Electric gas water heater shall supply hot water at 105 degrees. Hot
water piping shall be insulated. Stop valves shall be provided at each
fixture, and isolating valves shall be provided as required for an
easily serviceable system.
Women's Room (149)
(2) Wall hung water closets with flush valves.
(2) Drop in China lavs with trim.
(1) 2" Floor drain.
(1) 3 KW Electric water heater
Men's Room (148)
(1) Wall hung water closet with flush valve.
(1) Wall hung urinal with flush valve.
(1) 2" Floor drain.
(2) Drop in Lavs
Lunch Room (155)
(1) Double compartment stainless steel sink with trim.
(1) 3 KW Electric water heater.
Board Room (103)
(1) Single compartment stainless steel sink with goose neck
trim.
(1) 3000 Watt point of use water heater.
Mechanical/Janitor Room (153)
(1) Single 24 x 24 x 10 x 2 Floor sink with 897 faucet trim.
(1) 2" Floor drain.
(1) 3 KW Electric water heater.
Manufacturing/Warehouse Rest Rooms Men's (152)
(2) Wall hung water closets with flush valves.
(1) Wall hung urinals with flush valves.
(2) Drop in China lavs with trim.
(1) 2" Floor drain.
Manufacturing/Warehouse Rest Rooms Women's (151)
(3) Wall hung water closets with flush valves.
(2) Drop in China lavs with trim.
(1) 2" Floor drain.
(1) 3 KW Electric water heater.
Manufacturing/Tool Service (112)
(1) Laundry tray cold water rough-in.
(1) 3KW Electric water heater.
Rest Rooms (128 & 130) Men's
(2) Wall hung water closets with flush valve.
(2) Wall urinals with flush valve.
(4) Drop in China lavs with trim.
(1) 3 KW Electric water heater.
(2) 2" Floor Drains.
Rest Rooms Near Sales/Management Area Women's (127 &129)
(4) Wall hung water closets with flush valves.
(4) Drop in China lavs with rim.
(2) 2" Floor drains.
R & D Chemical Lab (113)
(1) Hose bibb.
(1) Emergency eye/shower wash.
(1) 2" floor drain.
(1) Hard water.
(4) Ceramic laboratory sinks with trim.
(1) D.I. water.
(1) Soft water.
(1) Air Outlet.
(1) 6 KW Electrical water heater.
R & D Engineering Lab (117)
(1) Air Outlet.
R & D Dry Lab (114)
(1) 2" floor drain.
(1) Hard water.
(1) D.I. water.
(1) Soft water.
(4) Ceramic laboratory sinks with trim.
(2) Air Outlets.
R & D Wet Lab (118)
(4) Floor sinks.
(1) Hard water.
(1) D.I. water.
(1) Soft water.
(2) Ceramic laboratory sinks with trim.
(1) Air Outlet.
(10) Hose bibs.
Manufacturing/Warehouse Area (173)
(2) Hose bibs (cold water one at column post).
(6) Floor sinks.
Roof Drainage
(6) 8" Roof drains.
Mechanical Test (135)
(4) Sinks
(1) Hose Bibs
(4) Air Outlets
(1) 2" Floor Drain
Open Manufacturing
(32) Rubber Air Hose Drops with quick connects.
(3) Hard Pipe Equipment Connections.
Tool Service (112)
(7) Air Outlets.
Miscellaneous
Waste and vent piping schedule 40 PVC where allowed by code.
Water piping Type L copper.
Roof drainage piping No Hub schedule 40 PVC
Air piping Press Fit.
(2) Outside frost proof hose bibs.
(1) 2" Domestic water meter (from opening left by others 1'0"
off).
(1) 1-1/2" Lawn irrigation meter & back flow preventer.
2. HEATING, VENTILATION, AND AIR CONDITIONING: A complete mechanical
system shall be provided throughout the facility to accomplish heating,
ventilation, and air conditioning in the office, manufacturing and
warehouse areas.
Office areas shall be heated, cooled and ventilated to normal office
conditions in accordance with ASHRAE design standards by means of roof
mounted packaged mechanical units. Temperature control shall be by
means of wall mounted thermostats.
Supply air shall be distributed by means of overhead ductwork and
ceiling diffusers. Slot diffusers are included at perimeter of open
area. Return air shall be accomplished by means of free air movement
through the ceiling plenum. Separate zones of control shall be provided
where required by variances in occupancies and exposures. A wall
mounted electric cabinet unit heater shall provide supplementary heat
at the entrance vestibule.
Office Area, Conference Rooms, Board Room, Training Room, Support
Rooms, Reception Area
(10) Heating/cooling roof tops totaling 77.5 tons.
Perimeter zones with linear slot diffusers, interior zones
with lay-ins (plenum ceilings through out).
Toilet exhaust as required per code.
(3) Electric entry heaters.
Lunch Room (155)
(1) 7 1/2 Ton heating/cooling roof top plenum return.
(1) P.R.V. For Ventilation.
Entrance Vestibules
(3) Electric wall heaters.
Chem Lab & R & D Area
(1) 10 Ton heating/cooling roof top with plenum return.
Manufacturing Mechanical Test Area
(1) 5 Ton heating/cooling roof top with plenum return.
Focus Factory (170)
(1) 5 Ton heating/cooling roof top with plenum return.
Omega, Tool Services
A/C off main manufacturing plant system.
Main Manufacturing/Warehouse Area (Sized for Additional 100 People)
(173)
(6) 12 1/2 Ton heating/cooling roof tops with concentric
drops (75 Tons).
(12) De-stratification fans by Electrician.
(3) Smoke evacuation fans.
(1) Welding Exhaust Hood.
(1) Warehouse Fume Hood.
(2) 6" (phi) Class "B" Oven Vents.
(2) P.R.V's for Exhaust.
(5) Hoods for Owners Exhaust.
Open Office Area
(1) 10 Ton heating/cooling roof top with exposed spiral pipe
and diffuser.
(1) 8.5 Ton heating/cooling roof top with exposed spiral pipe
and diffuser.
(3) 7.5 Ton heating/cooling roof tops with exposed spiral pipe
and diffuser.
(1) 5 Ton heating/cooling roof top with exposed spiral pipe
and diffuser.
(1) 4 Ton heating/cooling roof top with exposed spiral pipe
and diffuser.
Docks - Staging Area
(3) Gas Fired Unit Heaters
Mechanical/Electrical/Janitor Room
(1) P.R.V. For Ventilation.
Toilet Rooms
Ventilation as required per code.
Compressor Room (174)
(1) P.R.V. for Ventilation
General Inclusions
All roof tops to be furnished with economizer.
Thermostat with Auto change over subbases
(5) Louvers and dampers for smoke exhaust and summer
ventilation.
3. FIRE PROTECTION SPRINKLER SYSTEM: A complete wet automatic fire
protection system shall be provided for the facility in accordance with
the requirements of applicable codes, NFPA standards, and the local
Fire Marshall.
An ESFR Fire Protection System will be designed for Class IV
commodities per NFPA 231C at warehouse manufacturing areas. The balance
of the building will receive a light hazard system. In-rack sprinkler
systems are not included.
Conventional chrome plated semirecessed sprinkler heads shall be
provided for the office areas and other finished spaces, and upright
brass sprinkler heads shall be furnished in areas without a suspended
acoustical ceiling.
Per local Fire Marshall, fire protection at telephone and computer
rooms are not required. Therefore, no fire protection is included in
these areas.
16000 ELECTRICAL
Basic Materials and Methods
1. CONDUIT INSTALLATION
A. All building wiring shall be installed in rigid steel conduit,
IMC, EMT, flexible metallic conduit (greenfield) or PVC, as
allowed by NEC. Routing of conduits shall be as required by
job conditions.
B. Steel conduit, tubing and fittings shall be galvanized or
sheradized. Connectors and couplings shall be galvanized steel
or compression type; indented type fittings will NOT be
acceptable. Couplings used in connections to equipment of
rigid conduit shall be with a locknut and bushing or threaded
hubs.
C. The installations of conduits or pullboxes for electrical
feeders shall be adjusted before installation to avoid
conflicts between the locations of conduit runs, piping and
ductwork. In general, large pipe mains and air duct shall be
given priority in available space. Conduit runs shall be
installed so as to maintain, wherever practical, a minimum
separation of three inches (3") from water and waste piping.
D. Pull boxes sized in compliance with code requirements shall be
provided where necessary for pulling wires.
E. Where conduit runs terminate at a motor, transformer, control
device or other rotating or vibrating equipment, furnish and
install a short piece of flexible sealtite between the motor
and the conduit or outlet box.
F. Installation Requirements:
1. Conduits shall be installed in steel reinforced
concrete joists, beams or columns without the
approval of the Structural Engineer, except that 1/2"
and 3/4" conduits in columns for switches and
receptacles may be installed where shown on the
drawings.
2. All conduits shall be concealed in the building
construction wherever possible. Exposed conduits
shall be installed in a workmanlike manner parallel
with or at right angles to walls, ceilings or
structural members. Where required by the building
construction, furnish and install conduit with
expansion fittings.
3. All conduits installed in outside walls, concrete
slabs on grade, or below slabs shall be rigid PVC
type.
4. Provide an appropriately sized conduit seal for all
conduits passing through exterior walls below grade.
2. WIRES AND CABLES
A. All wire and cable furnished and installed under this contract
shall be new and of the best quality and of size, type and
numbers shown on the plans or required. Conductors shall be
soft annealed copper conforming to conductivity and in all
other respects, to the requirements of the ASTM. Unless
otherwise stated, wire shall be rated at 600 volts. Wire sizes
indicated are for copper conductors. Feeder wire shall be
aluminum.
B. All feeders and motor wiring should be type THW, THHN or THWN.
Branch circuit wiring shall be type TW, THW or THHN. No wire
smaller than #14 shall be used, unless otherwise noted, and
all #8 and larger shall be stranded.
C. No wires shall be drawn into conduit until all work of a
nature which may cause injury is completed. Mechanical wire
pulling apparatus may be used only on conductors larger than
#4 AWG, provided sufficient lubricating compound is used and
conduit is so arranged as to hold possibility or injuring
insulation to an absolute minimum. No grease, oil or
lubricants other than approved wire pulling compounds shall be
used to facilitate the pulling in of wires. Feeders shall be
run their entire length in continuos pieces, without joints or
splices, in so far as practical.
D. Wire shall meet or exceed IPECA-NEMA applicable requirements.
E. For conductors #8 AWG and larger, cable connector shall be of
"color keyed compression type". Smaller conductors shall use
"Scotchlock" brand by Minnesota Mining & Manufacturing Company
(3M), Ideal Industries, Inc., or equivalent.
F. Color Coding:
All service, feeder and branch circuit conductors throughout
the project shall be color coded. The following is the
suggested color code:
208/120 Volts Phase 277/480 Volts
--------------------------------------------------------------
Black A Brown
Red B Orange
Blue C Yellow
White Neutral Gray
Green Ground Green
G. Aluminum Conductors:
Feeder wire shall be aluminum.
H. Armored cable (MC/BX) may be used for branch circuit wiring
where allowed by Code.
3. WIRING DEVICES AND COVERING PLATES
A. Switches for all incandescent and fluorescent lamp loads shall
be rated for 15 amperes, 120/277 volt, AC, Underwriters'
approved specification grade.
B. Receptacles for general uses shall be duplex, grounding type,
rated 15 or 20 amperes, 120/277 volts, specification grade.
C. Coverplates shall be smooth plastic.
D. Provide GFI duplex receptacle in each toilet and on each
mechanical rooftop unit.
E. Office Areas:
1. Duplex convenience outlets shall be provided at walls
within the office area.
2. Provide dedicated feeder to serve tenant's computer
equipment.
3. Provide wiring devices as indicated in building area
requirement worksheets.
F. Warehouse and Production Shop Areas:
1. Provide a duplex outlet at the interior face of
exterior walls adjacent to each truck dock door for
dock lights.
4. ELECTRIC SERVICE TO THE BUILDING
A. The electrical service shall consist of a 1200 Amp, 277/480
Volt, 3-phase, 4-wire service, expandable to a 1600 Amp
service.
B. This Contractor is responsible for all notifications to and
coordination with the electrical utility company and shall
provide all labor and material not furnished by the utility
company. General Contractor to pay all utility charges.
5. ELECTRICAL DISTRIBUTION
A. The electrical distribution in the building shall be as
required to provide power for the mechanical systems and other
various systems.
B. Bussing shall be of copper or electrical grade aluminum and
shall be formed and braced to withstand the effect of the
available fault current. Copper bussing shall be silver plated
at joints, and be properly connected with bolts and lock
washers. Aluminum bussing shall be tin plated, full length and
shall have all joints made by welding or use of bolts and
double Belleville washers properly tightened.
C. A continuous ground bus shall be provided to all sections of
the switchboard and all non-current carrying parts of the
switchboard shall be solidly connected to this ground bus.
D. All lugs for cable or bus connections shall be positive
pressure bolted clamp type for copper or shall be Burndy
"Hy-Press" type and Belleville washer for aluminum cable
terminal lugs.
E. Switchboards shall be constructed to meet all requirements for
indoor NEMA classified equipment.
F. The General Contractor shall furnish and install a concrete
housekeeping pad for all floor mounted equipment. The pad
shall be 4" high and sized to extend 4" beyond the equipment.
6. CIRCUIT BREAKER LIGHTING AND MISCELLANEOUS POWER PANELBOARDS AND
CABINETS
A. Cabinets shall be constructed by Code gauge steel. They shall
be equipped with steel trim with hinged doors, and latches.
B. Panelboards mounting, flush or surface, shall be as required.
Surface mounted cabinets shall be finished in light gray
enamel. Fronts of flush cabinets shall be provided with a
finish of light gray enamel.
C. Main capacity shall be not less than the rating of the
over-current protective device for the feeder. All bus shall
be plated.
D. Each cabinet shall be with a clear plastic covered
type-written directory of circuits. The directory shall be
mounted in a card holder attached to the inside of the door.
E. Provide branch circuit breakers as required.
F. Panelboard shall be dead-front, safety type, equipped with
circuit breakers as herein specified.
G. All panels shall be by the same manufacturer.
H. Circuit breaker panelboards for 120/208 volt services shall be
listed by Underwriter's Laboratories and bear the UL Label.
7. GROUNDING
A. Safety switches shall be rated for system voltage, and where
required, shall be equipped with cartridge fuses.
B. Safety switches shall be NEMA general.
8. FUSES
A. Provide all fuses as required. Fuses shall be rated for
voltage applied, non- renewable, dual elements, cartridge
type, unless otherwise noted.
9. DRY TYPE TRANSFORMERS
A. Furnish and install dry type transformers to provide 120/208
volt, 3-phase, 4-wire power as required.
B. Transformers shall utilize a Class H insulation and shall
comply and must be tested in accordance with the requirements
of NEMA, ASA and AIEE standards. Transformers shall have
ventilated enclosures for natural draft cooling and designed
for indoor installation.
C. Transformers shall have universal voltage taps; (4) 2-1/2%
below normal and (2) 2% above normal.
10. EMERGENCY LIGHTING
A. Provide exit lights and emergency egress lights to meet Life
Safety Codes.
11. EXTERIOR LIGHTING
A. Provide site light fixtures with bases, consisting of 25'
steel poles with 400 W HPS luminaries.
B. Provide metal halide wall-pack light fixtures on building
perimeter for truck parking.
C. Provide metal halide downlights at main entrance exterior.
D. Provide metal halide wall pack light fixtures at exit doors.
E. Provide power to exterior pylon sign.
12. INTERIOR LIGHTING
1. Provide lighting as specified.
2. 2x4 fluorescent troffers with 18-cell parabolic louvers shall
be used in office and acrylic lenses shall be used in lab
areas.
4. Compact fluorescent downlights will be used in Main Lobby.
6. All fluorescent lights will have electronic ballasts and
octron lamps.
7. Provide lighting controls as indicated in building area
requirement worksheets.
8. Provide metal halide lights at warehouse and manufacturing
13. FIRE ALARM SYSTEM
A. Provide a fire alarm connections to tamper and flow switches,
plus the exterior fire bell.
14. MOTORS AND EQUIPMENT
A. Provide connection to all mechanical.
B. Provide disconnect switches for all equipment as required.
C. Install all electric heating equipment provided by mechanical
contractor and make final equipment connections.
D. All interlock and temperature control wiring by mechanical
contractor.
15. ELECTRICAL ITEMS
A. Lighting:
Description Quantity
----------- --------
A(AA,AH) 100
B(CA) 26
C(PA,PH) 271
D(FI) 183
E(EM) 67
F(HB) 103
G(SA) 17
H(ST) 20
K(XW) 14
M(XX) 2
X(EA) 28
XI(EB) 1
24' POLE SINGLE HEAD 6
27' POLE TWIN HEAD 4
DOCK LIGHT RECEPTACLES 9
B. WIRING DEVICES
Description Quantity
----------- --------
SINGLE POLE SWITCH 64
THREE-WAY SWITCH 30
FOUR-WAY SWITCH 3
1000W DIMMER 1
1500W DIMMER 1
OCCUPANCY SENSOR 0
DUPLEX RECEPTACLE-OFFICE 126
DUPLEX RECEPTACLE-PRODUCTION 49
ISOLATED GROUND DUPLES RECEPTACLE 48
GFI RECEPTACLE 17
WEATHERPROOF GFI RECEPTACLE 4
30A 3-POLE 208V RECEPTACLE 1
C. SOUND SYSTEM
Description Quantity
----------- --------
VOLUME CONTROL 0
OFFICE SPEAKER 0
PRODUCTION SPEAKER 5
AMPLIFIER 1
D. TELEPHONE
Description Quantity
----------- --------
2" EMPTY CONDUIT 300 ft
EQUIPMENT BOARD 1
VOICE/DATA OPENINGS LAB 66
VOICE/DATA TRAINING RM 63
E. EQUIPMENT/CORD DROPS
Description Quantity
----------- --------
DUPLEX 177
20A 3-POLE 208V 19
30 A 3 PHASE 208V DROPS IN MAUI AREA-LEAVE
CIRCUITS IN CEILING 30
60A 3-POLE 208V 2
100A 3-POLE 208V 3
BENCH DUPLEX CORD DROPS - PRODUCTION 164
DUPLEX DROPS IN MAUI - LEAVE CIRCUITS IN
CEILING J-BOX 152
F. MECHANICAL EQUIPMENT WIRING
Description Quantity
----------- --------
FRACTIONAL HP PRV 19
WELDING HOOD EXHAUST 0
FRACTIONAL HP RTU-PRODUCTION 6
RTU-OFFICE 5
INFRARED HEATER 3
WATER HEATER 15KW 1
FORCED FAN HEATER 7
FIRE PUMP 1
AIR COMPRESSOR 30A PRV 1
LUNCH ROOM FAN 1
G. MISCELLANEOUS EQUIPMENT
Description Quantity
----------- --------
OH DOOR POWER CONNECTION ONLY (CONTROL
BY OTHERS) 7
H. SWITCH GEAR
Description Quantity
----------- --------
1200A SERVICE EXPANDABLE TO 1600A 1
200A 277/480V PANELBOARD MLO 3
200A 120/208V PANELBOARD MLO 14
200A 120/208V PANELBOARD MCB 1
300A 120/208V PANELBOARD MCB 1
400A 120/208V FUSIBLE PANELBOARD WITH
MAIN SWITCH 1
600A 120/208V FUSIBLE PANELBOARD WITH
MAIN SWITCH 2
75 KVA TRANSFORMER 1
112.5 KVA TRANSFORMER 1
150 KVA TRANSFORMER 1
225 KVA TRANSFORMER 1
PANEL FOR LAB CKTS 1
ALUMINUM FEEDERS
ALLOWANCES
The following allowances shall be included for the total installed cost (labor,
material, freight, and taxes) of each item indicated unless specified otherwise:
1. Landscaping: Allowance of $65,000 for all seeding, sodding, trees,
mulch, edging, shrubbery, retaining walls and other landscaping or
irrigation systems required by the final landscaping design.
2. Carpet: Allowance of $15.00 per square yard of carpeted floor area.
Allowance covers the total installed cost (carpet, pad, labor,
adhesives, etc.).
3. Vinyl wall covering: An installed allowance of $4.00/ lineal yard is
included.
4. Signage Allowance: included is an allowance of $10,000 for exterior
signage.
5. Millwork Allowance: included is an allowance of $45,000 for millwork.
QUALIFICATIONS
The following items are not included in the scope of work proposed herein:
1. Kitchen equipment (refrigerator, microwave, vending equipment,
etc.).
2. Furniture design and selection.
3. Demountable partitions or open office landscape partitions.
4. On-site water storage facilities.
5. Telephone equipment, telephones or communication wiring.
6. Security systems.
7. In-rack fire protection system.
8. Computer system network wiring
9. Paging system.
10. Racking.
11. Non-water fire protection
LIST OF EXHIBITS
The following exhibits, together with this outline specification, form the basis
for this proposal:
1. Value Engineering List and "Must/Want/Wish" List dated 8/15/96. (Note
that these lists supersede all other documents).
2. Geotechnical Exploration, Recovery Engineering Development, 75th Avenue
North, Brooklyn Park, Minnesota, GME Project No. 6299, as performed by
GME Consultants, Inc. and dated July 31, 1996.
3. Horwitz, Inc. letter, dated November 4, 1996, which summarizes
Mechanical Plumbing differences from the LKPB Outline Mechanical and
Electrical Documents.
4. Allan Mechanical, Inc. letter, dated October 30, 1996, which summarizes
HVAC Mechanical differences from the LKPB Outline Mechanical and
Electrical Documents.
5. Gephart Electric letter, dated October 30, 1996, which summarizes
Electrical differences from the LKPB Outline Mechanical and Electrical
Documents.
6. Project Drawings as follows:
ARCHITECTURAL
A2.1 Floor Plan 7-19-96
A5.1 Reflected Ceiling Plan 7-19-96
A6.1 Door Schedule 7-19-96
A7.0 Room Finish Schedule 7-19-96
A8.1 Exterior Elevations 7-19-96
STRUCTURAL
S1 Foundation Plan 7-17-96
S2 Floor Framing Plan 7-17-96
S3 Roof Framing Plan 7-17-96
S4 Sections and Details 7-17-96
CIVIL
1/8 Cover Sheet 9-03-96
2/8 Existing Conditions Plan 9-03-96
3/8 Preliminary Site Plan 9-03-96
4/8 Preliminary Grading, Drainage and Erosion
Control Plan 9-03-96
5/8 Preliminary Utility Plan 9-03-96
6/8 Wetland & Pond Grading Plan 9-03-96
7/8 General Details Sheet 9-03-96
8/8 General Details Sheet 9-03-96
MECHANICAL & ELECTRICAL
M1 Preliminary Plumbing Layout Plan 7-19-96
M2 Preliminary Mechanical HVAC Layout Plan 7-19-96
M3 Preliminary Mechanical Roof Plan 7-19-96
ME1 Preliminary Mech. & Elec. Schedules 7-19-96
E1 Preliminary Electrical Riser Diagram 7-19-96
E2 Preliminary Electrical Schedule 7-19-96
E3 Preliminary Electrical Lighting Plan 7-19-96
E4 Preliminary Power & Signal Plan 7-19-96
EXHIBIT C
Basic Rent
Tenant agrees to pay to Landlord:
1. For the period beginning on the Commencement Date of this Lease
through the sixtieth full calendar month following the Commencement
Date, a monthly Basic Rent equal to the product of one-twelfth of the
sum of (i) eleven percent multiplied by the Adjusted Guaranteed Total
Project Cost, plus (ii) $.10 per square foot, as hereinafter defined.
The Landlord guarantees total project costs will not exceed the
Guaranteed Total Project Costs ("GTPC"). The GTPC is defined as
follows:
A. Base Project Cost $5,267,000.00
B. Plus Owner Allowance 150,000.00
C. Plus Revised Building Design Allowance 64,669.00
-------------
GTPC $5,481,669.00
The annual net rents will be calculated based on 11% of the final
Adjusted Guaranteed Total Project Costs, plus $.10 per square foot,
(AGTPC). The GTPC of $5,481,669 will be adjusted to determine the AGTPC
as follows:
A. Guaranteed Total Project Costs (GTPC) $**
B. Plus: Tenant initiated and approved additions to the $**
Scope of Construction
C. Minus: Tenant approved deductions to the Scope of $**
Construction
D. Plus or minus: Tenant approved costs in excess of $**
or less than "Allowances" provided Allowance
Change Orders (hereinafter defined)
E. Minus: 100% of any Tenant Construction Payments $**
F. Adjusted Guaranteed Total Project Costs (AGTPC) $**
The adjustments to the GTPC notice by "**" are to be determined and
calculated subsequent to the completion of the Improvements to be
constructed by Landlord.
Any Tenant initiated and approved additions or deductions to the Scope
of Construction ("Tenant Change Orders") will be added to or deducted
from the GTPC. Tenant Change Orders must have Tenant written approval.
Certain construction allowances (the Allowances) have been provided for
as itemized in Exhibit B, page 21 of the Outline Specifications for the
Design and Construction. Any tenant approved spending in excess of or
less than the allowance will be a change in the scope of construction
work ("Allowance Change Order") and will be added to or deducted from
the GTPC. Allowance Change Orders must have Tenant written approval.
The AGTPC cannot exceed $5,481,669.00. Therefore the Tenant is
obligated to pay for that portion of the Tenant Change Orders and
Allowance Change Orders, except as provided in the preceding paragraph,
to reduce the AGTPC back down to $5,481,669. This obligation will be
the Tenant Construction Payments and the GTPC will be reduced by 100%
of the Tenant Construction Payments in determining the Adjusted
Guaranteed Total Project Costs.
2. For the period from the sixty first month through the one hundred
twentieth full calendar month, a monthly Basic Rent shall be equal to
115% of the monthly Basic Rent determined in accordance with Section 1
of this Exhibit C.
3. For each of the Extended Terms (if applicable), Basic Rent shall be
equal to 115% of Tenant's then current annual Basic Rent as of the
Commencement Date of the Extended Term.
EXHIBIT D
LAND OPTION ESTIMATED STATEMENT
Interest Carry 23,400.00
Maintenance 1,500.00
Insurance 1,000.00
--------
NOTE: This estimate is for calendar year 1997.
EXHIBIT E
DESCRIPTION OF EXPANSION AREA
Exhibit E consists of draftsman drawing of building site, including location of
proposed building, parking spaces, streets and utility easements, and
highlighting space for future expansion of building and parking.
EXHIBIT F
EXISTING ENCUMBRANCES ON PROPERTY AND EXPANSION AREA
1. First Amended Master Document Agreement between the Brooklyn Park
Economic Development Authority and Ryan Construction Company of
Minnesota, Inc. dated January 9, 1996 and recorded as Document No.
6543842.
2. Protective Covenants for Northland Park II recorded as Document No.
4563785, as amended by Bifurcation and Separation Agreement recorded as
Document No. 6517830.
3. Protective Covenants for Northland Park II recorded as Document No.
5960478, as amended by Bifurcation and Separation Agreement recorded as
Document No. 6517830.
4. Protective Covenants for Northland Park II recorded as Document No.
1394458, as amended by instrument recorded as Document No. 1438207, and
as further amended by Bifurcation Separation Agreement registered as
Document No. 2664094.
5. Utility and drainage instruments as shown on the recorded plat of
Northland Park Division 3.
6. Easement for drainage purposes in favor of Hennepin County recorded as
Document No. 1520227.
7. Easement for drainage purposes in favor of the City of Brooklyn Park
recorded as Document No. 1559611.
8. No right of access to County State Aid Highway No. 18.
9. Right to covenant and maintain temporary snow fences over lands
adjacent to County State Aid Highway No. 18, recorded by the County of
Hennepin in Final Certificate recorded Document No. 2075297.
Exhibit 11.1
RECOVERY ENGINEERING, INC.
COMPUTATION OF EARNINGS (LOSS) PER SHARE
Year ended
December 31,
(in thousands, except per share data)
1996 1995 1994
-------- -------- --------
Primary:
Average shares outstanding .............. 4,307 4,239 3,531
Net effect of dilutive stock options and
warrants ) based on treasury stock
method using average market price .... -- -- 525
-------- -------- --------
Total ................................... 4,307 4,239 4,056
======== ======== ========
Net income (loss) ....................... $(12,499) $ (4,762) $ 2,019
======== ======== ========
Per share amount ........................ $ (2.90) $ (1.12) $ .50
======== ======== ========
Fully diluted:
Average shares outstanding .............. 4,307 4,239 3,531
Net effect of dilutive stock options
and warrants ) based on treasury stock
method using ending market price,
if higher than average market price .. -- -- 549
-------- -------- --------
Total ................................... 4,307 4,239 4,080
======== ======== ========
Net income (loss) ....................... $(12,499) $ (4,762) $ 2,019
======== ======== ========
Per share amount ........................ $ (2.90) $ (1.12) $ .50
======== ======== ========
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, certain items from
the Company's statements of operations, expressed as a percentage of net sales.
As a Percentage
of Net Sales
1996 1995 1994
Net sales ........................... 100.0% 100.0% 100.0%
Cost of products sold ............... 62.4 60.9 47.4
Gross profit ........................ 37.6 39.1 52.6
Operating expenses:
Selling, general and administrative 65.5 64.1 31.4
Research and development .......... 6.0 8.8 6.4
Facility relocation ............... 2.9 -- --
Total operating expenses .......... 74.4 72.9 37.8
Income (loss) from operations ...... (36.8) (33.8) 14.8
Other income (expense) .............. (.7) 1.8 2.7
Income (loss) before income taxes ... (37.5) (32.0) 17.5
Income tax expense (benefit) ....... -- (11.2) 5.4
Net income (loss) ................... (37.5)% (20.8)% 12.1%
Net sales increased over the prior year by 45.2% in 1996 and 37.5% in
1995. The increase in 1996 was attributable to increased sales of the Company's
PUR household water filter products, including introduction of the countertop
and pitcher models, as well as a full year's sales of OEM water filters to Braun
AG. These increases were partially offset by a decline in sales of reverse
osmosis desalinators due to lower military sales. In 1995, sales increased over
1994 due to increased sales of household water filter products, increased sales
of the Company's outdoor recreation products, and first year sales of OEM water
filters. Anticipated sales growth in 1997 is expected to be led by the household
water filter products, including additions to the product line. Price increases
did not have a significant impact on net sales for 1996 and 1995.
Gross margins were 37.6% in 1996 versus 39.1% in 1995. The decrease in 1996
was the result of a continued change in product mix, including the introduction
of the lower margin pitcher product and the full year impact of OEM filter
sales. Margin decreases in 1995 were the result of a change in product mix,
vendor delays in delivering automated equipment, and higher manufacturing
overhead costs primarily from the rapid ramp-up of the Company's OEM filter
products.
Selling, general and administrative expenses increased over the prior year
as a percentage of sales in both 1996 and 1995. Selling expenses related to the
continued roll-out and expansion of the household water systems in 1996 and 1995
accounted for the majority of the increase. Advertising costs accounted for 45%
of the increase in selling, general and administrative expenses when compared to
actual expenses in 1995. Selling expenses as a percent of sales are expected to
decrease in 1997 as the Company gains efficiencies from increased volume,
however, additional investments in an aggressive marketing campaign should be
expected as the Company continues to expand its product lines.
Research and development expense in 1996 decreased from the prior year as a
percent of sales, compared with an increase in 1995. The continued development
of new technology and product line extensions will require continued emphasis
and increased spending on research and development in 1997.
Other income decreased in 1996 from the prior year and decreased in 1995
compared with 1994. In 1996 the Company's continued investment in equipment and
marketing reduced its investment
PAGE 8
earnings and increased debt and interest expense. Other income in 1995 reflects
decreased holdings of long-term investments and marketable securities, as
compared to 1994 to fund investments in equipment and marketing
The Company's effective tax rate for 1996 was 0%, compared with 35% in
1995, and 31% in 1994. The Company has recorded a valuation allowance for the
tax benefit related to the current year net operating loss. The Company has a
net operating tax loss carryforward of $15.6 million at December 31, 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Company entered into an agreement with Goldman, Sachs & Co. in July 1996 in
which Goldman, Sachs & Co. invested $15 million in the Company in the form of a
convertible note. The Company will pay interest quarterly at an annual rate of
five percent. The agreement provides Goldman Sachs the opportunity to convert
the principal to common stock at any time during the seven year agreement at a
$15 conversion price. The proceeds are being used for the expansion of the
business and the unused portion is currently held in interest bearing cash
equivalents.
Cash used in operations was $5.7 million in 1996, $8.1 million in 1995, and
$1.3 million in 1994. The net loss was the primary contributor to the decrease
in cash flow in 1996, as well as an increase in accounts receivable. This
decrease was partially offset by increases in accounts payable and accrued
liabilities. In 1995 the net loss and increased inventory levels were the
primary components of cash used in operations. In 1994, timing of fourth quarter
shipments and increased inventory levels were the major components of cash used
in operations.
Capital expenditures were $4.1 million in 1996 compared with $4.6 million
in 1995, and $2.8 million in 1994. The Company anticipates continued capital
expenditures in 1997 associated with new product introductions and an increase
in production capacity.
At December 31, 1996 the Company had cash and cash equivalents and
marketable securities of $7.5 million compared with $2.3 million at December 31,
1995. The current ratio is 1.9 at December 31, 1996 versus 3.4 at December 31,
1995. Inventory turns increased to 3.2 for 1996 compared with 3.0 in 1995.
The Company had no bank debt at December 31, 1996. Subsequent to December
31, 1996 the Company obtained a $14 million credit facility secured by
equipment, inventory, receivables, and intangibles. The credit facility consists
of a $10 million discretionary working capital line of credit limited to
eligible receivables and inventory, and a $4 million equipment loan which
contains an 18 month draw down period wherein only interest payments are due,
and principal and interest payments are amortized over 42 months thereafter.
Management believes that proceeds from Goldman, Sachs & Co., anticipated
cash flows from operations, and funds available through its bank line of credit
will provide sufficient capital resources for current operations and planned
product introductions.
PAGE 9
<TABLE>
<CAPTION>
BALANCE SHEETS
December 31,
(In thousands, except share data) 1996 1995
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents ............................................... $ 5,988 $ 1,291
Marketable securities ................................................... 1,542 1,022
Accounts receivable (net of allowance of $212 for 1996, and $57 for 1995) 8,109 4,196
Inventory ............................................................... 4,926 6,173
Refundable income taxes ................................................. -- 1,177
Other current assets .................................................... 304 384
Total current assets ....................................................... 20,869 14,243
Property and equipment:
Tooling ................................................................. 6,057 4,449
Equipment and fixtures .................................................. 6,569 4,587
12,626 9,036
Less accumulated depreciation ........................................... 3,003 1,870
9,623 7,166
Deferred income taxes ...................................................... 1,512 1,512
Patents (net of accumulated amortization) .................................. 766 701
Other assets ............................................................... 487 --
Total assets ............................................................... $ 33,257 $ 23,622
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable ........................................................ $ 6,483 $ 2,912
Accrued facility relocation costs ....................................... 608 --
Accrued marketing expenses .............................................. 861 468
Accrued coop advertising ................................................ 1,050 466
Other accrued expenses .................................................. 2,124 346
Total current liabilities .................................................. 11,126 4,192
Long-term debt ............................................................. 15,000 --
Commitments
Shareholders' equity:
Common stock, $.01 per value par value:
Authorized shares -- 100,000,000
Issued and outstanding shares 1996-- 4,325,710 and 1995-- 4,256,723 . 43 42
Additional paid-in capital .............................................. 20,313 20,114
Retained earnings (deficit) ............................................. (13,225) (726)
Total shareholders' equity ................................................. 7,131 19,430
Total liabilities and shareholders' equity ................................. $ 33,257 $ 23,622
</TABLE>
See accompanying notes.
PAGE 10
<TABLE>
<CAPTION>
STATEMENTS OF OPERATIONS
Year ended December 31,
(In thousands, except per share data) 1996 1995 1994
<S> <C> <C> <C>
Net sales .................................. $ 33,277 $ 22,921 $ 16,671
Cost of products sold ...................... 20,756 13,959 7,897
Gross profit ............................... 12,521 8,962 8,774
Operating expenses:
Selling, general and administrative ..... 21,803 14,692 5,240
Research and development ................ 2,007 2,021 1,064
Facility relocation costs ............... 973 -- --
24,783 16,713 6,304
Income (loss) from operations .............. (12,262) (7,751) 2,470
Other income (expense):
Interest income ......................... 220 551 508
Interest expense ........................ (457) (126) (52)
Income (loss) before income taxes .......... (12,499) (7,326) 2,926
Income tax expense (benefit) ............... -- (2,564) 907
Net income (loss) .......................... $(12,499) $ (4,762) $ 2,019
Net income (loss) per share ................ $ (2.90) $ (1.12) $ .50
Weighted average number of common and common
equivalent shares outstanding ........... 4,307 4,239 4,056
</TABLE>
See accompanying notes.
PAGE 11
<TABLE>
<CAPTION>
STATEMENTS OF CASH FLOWS
Year ended December 31,
(In thousands) 1996 1995 1994
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income (loss) ............................................ $(12,499) $(4,762) $ 2,019
Adjustments to reconcile net income (loss) to net cash used in
operating activities:
Depreciation and amortization ......................... 1,396 852 452
Write off of leasehold improvements ................... 365 -- --
Deferred income taxes ................................. -- (1,775) 101
Changes in operating assets and liabilities:
Accounts receivable ................................ (3,913) (207) (2,401)
Inventory .......................................... 1,247 (3,554) (1,630)
Refundable income taxes ............................ 1,177 (975) (202)
Other current assets ............................... 80 69 (307)
Other assets ....................................... (487) -- --
Accounts payable ................................... 3,571 1,489 897
Accrued expenses ................................... 3,363 807 (197)
Net cash used in operating activities ........................ (5,700) (8,056) (1,268)
INVESTING ACTIVITIES
Purchase of marketable securities ............................ (12,185) (2,511) (3,805)
Sale of marketable securities ................................ 11,665 4,963 --
Purchase of investments ...................................... -- (614) (2,583)
Sale of investments .......................................... -- 5,116 2,571
Purchase of property and equipment ........................... (4,117) (4,601) (2,802)
Purchase of patents .......................................... (166) (216) (181)
Net cash (used in) provided by investing activities .......... (4,803) 2,137 (6,800)
FINANCING ACTIVITIES
Proceeds from issuance of stock .............................. -- -- 11,991
Proceeds from issuance of long-term debt ..................... 15,000 -- --
Exercise of stock options and warrants ....................... 334 1,342 231
Common stock acquired ........................................ (134) (45) (13)
Net cash provided by financing activities .................... 15,200 1,297 12,209
Increase (decrease) in cash and cash equivalents ............. 4,697 (4,622) 4,141
Cash and cash equivalents at beginning of year ............... 1,291 5,913 1,772
Cash and cash equivalents at end of year ..................... $ 5,988 $ 1,291 $ 5,913
</TABLE>
See accompanying notes.
PAGE 12
<TABLE>
<CAPTION>
STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
Retained
Common Stock Additional Earnings
(In thousands, except share data) Shares Amount Paid-in Capital (Deficit) Total
<S> <C> <C> <C> <C> <C>
December 31, 1993 ............................... 2,969,075 $30 $ 6,620 $ 2,017 $ 8,667
Common stock issued for cash in stock offering 957,500 10 11,941 -- 11,951
Stock options and warrants exercised ......... 73,623 -- 231 -- 231
Employee stock purchase plan ................. 2,986 -- 40 -- 40
Common stock acquired ........................ (770) -- (13) -- (13)
Net income for year .......................... -- -- -- 2,019 2,019
December 31, 1994 ............................... 4,002,414 40 18,819 4,036 22,895
Stock options and warrants exercised ......... 251,525 2 1,270 -- 1,272
Employee stock purchase plan ................. 5,312 -- 70 -- 70
Common stock acquired ........................ (2,528) -- (45) -- (45)
Net loss for year ............................ -- -- -- (4,762) (4,762)
December 31, 1995 ............................... 4,256,723 42 20,114 (726) 19,430
Stock options and warrants exercised ......... 71,375 1 272 -- 273
Employee stock purchase plan ................. 6,874 -- 61 -- 61
Common stock acquired ........................ (9,262) -- (134) -- (134)
Net loss for year ............................ -- -- -- (12,499) (12,499)
December 31, 1996 ............................... 4,325,710 $43 $ 20,313 $(13,225) $ 7,131
</TABLE>
See accompanying notes.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1996
NOTE 1
Business Activity
Recovery Engineering, Inc., (the Company) manufactures and markets low energy
desalinators, antimicrobial water purifiers and micro filters, and residential
water filters sold primarily to retailers under the PUR brand name for
residential, marine, military and recreational use in the United States and
foreign markets.
NOTE 2
Summary of Significant Accounting Policies
The Company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
Marketable securities and investments are classified as available for sale
and consist primarily of commercial paper, U.S. Treasury Notes and municipal
bonds. At December 31, 1996 and 1995, the market value of marketable securities
and investments approximates cost.
The Company manufactures and sells its products to companies in diversified
industries. Sales are recorded upon ship ment of product. The Company performs
periodic credit evaluation of its customers' financial condition and generally
does not require collateral. The Company requires irrevocable letters of credit
on sales to certain foreign customers. Receivables generally are due within 30
days. Credit losses relating to customers consistently have been within
management's expectations.
Inventories are stated at the lower of cost or market determined by the
first-in, first-out (FIFO) method. Inventory cost elements consist of raw
materials, purchased parts, direct labor and applied manufacturing overhead.
The Company follows Accounting Principles Board Opinion No. 25, Accounting
for Stock Issued to Employees ("APB25"), and related interpretations in
accounting for its stock options. Under APB 25, when the exercise price of stock
options equals the market price of the underlying stock on the date of grant, no
compensation expense is recognized.
In October 1995, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 123, Accounting for Stock-Based
Compensation ("Statement 123"). The Company adopted the disclosure only
provisions of Statement 123. Accordingly, the Company has made pro forma
disclosures of what net loss and loss per share would have been had the
provisions of State ment 123 been applied to the Company's stock options.
Property and equipment are stated at cost. The Company depreciates these
assets over their estimated useful lives ranging from three to ten years.
Patents are stated at cost and are amortized on a straight-line basis
ranging from three to fifteen years. The carrying value of a patent will be
reviewed if the facts and circumstances suggest that it may be impaired. If this
review indicates that patent cost will not be recoverable, as determined based
on the undiscounted cash flows over the remaining amortization period, the
Company's carrying value of the patents will be reduced by the estimated
shortfall of cash flows.
Deferred financing costs which are included in other assets are being
amortized over a five year period.
The Company records losses on long-lived assets used in operations when
indicators of impairment are present and the undiscounted cash flows estimated
to be generated by those assets are less than the assets' carrying amount.
PAGE 13
Advertising costs are charged to operations in the year incurred.
Advertising costs charged to operations were $9,541,000, $6,372,000 and
$1,214,000 for the years ended December 31, 1996, 1995, and 1994, respectively.
Income taxes are accounted for under the liability method. Deferred income
taxes are provided for temporary differences between the financial reporting and
tax basis of assets and liabilities.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from the estimates.
Net income per share of Common Stock is computed by dividing net income by
the weighted average number of shares of Common Stock and Common Stock
equivalents outstanding during the period. Common Stock equivalents from stock
options and warrants are excluded from computing net loss per share as their
effect is antidilutive.
NOTE 3
Inventories
Inventories consist of the following:
December 31
1996 1995
Finished goods............... $3,353,000 $2,308,000
Work in progress............. 95,000 303,000
Raw materials................ 1,478,000 3,562,000
$4,926,000 $6,173,000
NOTE 4
Debt
Long-term debt consists of a $15 million convertible loan with Goldman, Sachs &
Co. which bears interest at 5% per annum and expires in 2003. Interest on the
loan is paid quarterly. Goldman, Sachs & Co. may convert the outstanding balance
of the loan into shares of Common Stock at a conversion price of $15 per share
at any time during the life of the loan. If not converted, the loan is payable
in annual installments starting August 2001.
Subsequent to December 31, 1996 the Company secured a $14 million credit
facility with a bank. The credit facility consists of a $10 million working
capital line-of-credit which bears interest at the bank reference rate plus
1.25%, limited to eligible receivables and inventory. The facility also contains
a $4 million equipment loan which contains an eighteen month draw down period
wherein only interest payments at the bank reference rate plus 2.50% are due.
Principal payments will be amortized over 42 months thereafter. Borrowings under
this agreement are limited to $10 million in 1997 by provisions in the
convertible loan agreement. In connection with the acquisition of the credit
facility, the Company issued warrants to the bank for the purchase of 80,000
shares of Common Stock at $7.00 per share. The warrants cannot be exercised
until September 1998 and expire six years from the effective date of the credit
facility.
NOTE 5
Stock Options and Warrants
The Company has incentive and non-qualified stock option plans which it uses as
an incentive for directors, officers, and other employees, consultants and
technical advisors. Options are granted at fair market values determined on the
date of grant and vesting normally occurs over a four year period.
On September 7, 1993, the Company adopted the 1993 Director Stock Option
Plan. The purpose of this non-qualified stock option plan is to provide
non-employee directors with an automatic annual stock option grant at 85% of
fair market value on the date of grant.
Shares available and options outstanding are as follows:
<TABLE>
<CAPTION>
Weighted
Average
Plan Options Plan Non-Plan Director Plan Exercise
Available Options Options Options Price
for Grant Outstanding Outstanding Outstanding Per Share
<S> <C> <C> <C> <C> <C>
Balance at
January 1, 1993 ... 8,658 555,500 1,000 5,000 $ 3.13
Additional shares
reserved ....... 350,000 -- -- -- --
Granted ......... (86,297) 86,297 -- 5,000 12.66
Exercised ....... -- (23,122) (500 -- 2.55
Canceled ........ 8,250 (8,250 -- -- 10.86
Balance at
December 31, 1994 . 280,611 610,425 500 10,000 4.32
Additional shares
reserved ....... 350,000 -- -- -- --
Granted ......... (306,475) 306,475 -- 8,000 13.86
Exercised ....... -- (251,525) -- -- 2.30
Canceled ........ 14,125 (14,125) -- -- 12.90
Balance at
December 31, 1995 . 338,261 651,250 500 18,000 8.97
Granted ......... (410,850) 410,850 -- 7,000 12.04
Exercised ....... -- (71,375) -- -- 3.75
Canceled ........ 95,700 (95,700) -- -- 11.27
Balance at
December 31, 1996 . 23,111 895,025 500 25,000 $ 9.77
</TABLE>
The weighted average fair value of options granted in 1996 and 1995 was $6.35
and $6.77 per share, respectively. The exercise price of options outstanding at
December 31, 1996 ranged from $2.50 to $14.63 per share as summarized in the
following table:
Weighted
Number Average Number Weighted Average
Range of Outstanding Remaining Exercisable Exercise Price
Exercise Prices at 12/31/96 Contractual Life at 12/31/96 Per Share
$ 2.50 - $ 5.00 207,000 2 years 197,000 $ 2.50
$ 5.01 - $10.00 101,000 10 years 12,500 8.33
$10.01 - $12.00 210,025 9 years 48,350 10.25
$12.01 - $14.63 402,500 10 years 145,500 13.78
$ 2.50 - $14.63 920,525 8 years 403,350 $ 7.68
The number of stock options exercisable at December 31, 1995 and 1994 were
391,025 and 478,175, respectively, at a weighted average price of $7.30 and
$2.65, respectively.
The Company has elected to follow Accounting Principles Board Opinion No.
25, Accounting for Stock Issued to Employees ("APB 25") and related
interpretations in accounting for its employee stock options because, as
discussed below, the alternative fair value accounting provided under FASB
Statement No. 123, Accounting for Stock-Based Compensation ("Statement 123"),
requires use of option valuation models that were not developed for use in
valuing employee stock options. Under APB 25, when the exercise price of the
Company's employee stock options equals the market price of the underlying stock
on the date of grant, no compensation expense is recognized.
Pro forma information regarding net loss and loss per share is required by
Statement 123, and has been determined as if the Company had accounted for its
employee stock options under the fair value method of Statement 123. The fair
value of these options was estimated at the date of grant using the
Black-Scholes option pricing model with the following weighted average
assumptions for 1996 and 1995, respectively; risk-free interest rate of 6%;
volatility factor of the expected market price of the Company's common stock of
.46 and a weighted-average expected life of the option of 6 years.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions. Because the Company's employee stock
options have characteristics significantly different from those of traded
options, and because changes in the subjective input assumptions
PAGE 14
can materially affect the fair value estimate, in management's opinion, the
existing models do not necessarily provide a reliable single measure of the fair
value of its employee stock options.
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the option's vesting period. The Company's
pro forma information is as follows:
1996 1995
Pro forma net loss................... $(13,102,000) $(5,024,000)
Pro forma net loss per common share.. $ (3.05) $ (1.19)
These pro forma amounts may not be indicative of future years' amounts
since the statement provides for a phase in of option values beginning with
those granted in1995.
The Company has a warrant outstanding for the purchase of 57,500 shares of
Common Stock at $8.40 per share, which expires in 1998.
The Company has an Employee Stock Purchase Plan with 100,000 shares
reserved for issuance under the plan. During 1996 and 1995, 6,874 and 5,312
shares were issued under the plan at prices ranging from $5.84 to $13.66.
Approximately 85,000 shares remain reserved for future issuance.
NOTE 6
Income Taxes
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax assets and liabilities are as follows:
Year ended December 31,
1996 1995
Deferred tax assets:
Net operating loss carryforward ......... $ 5,590,000 $1,400,000
Tax benefit of nonqualified stock options 530,000 530,000
Warranty reserve ........................ 130,000 29,000
Inventory obsolescence .................. 81,000 40,000
Bad debt reserve ........................ 76,000 20,000
Facility relocation costs ............... 350,000 --
Accrued expenses ........................ 165,000 --
Other ................................... 34,000 24,000
Total deferred tax assets ................. 6,956,000 2,043,000
Deferred tax liabilities:
Tax depreciation in excess of financial
reporting depreciation ................ 769,000 357,000
Tax amortization of patents in excess
of financial reporting amortization ... 116,000 111,000
Total deferred tax liabilities .......... 885,000 468,000
Net deferred tax ........................ 6,071,000 1,575,000
Valuation allowance ..................... (4,496,000) --
Deferred tax assets ..................... $ 1,575,000 $1,575,000
Significant components of the provision for income taxes are as follows:
Year ended December 31,
1996 1995 1994
Current:
Federal .... $ -- $(1,256,000) $744,000
State ...... -- -- 80,000
Total current -- (1,256,000) 824,000
Deferred:
Federal .... (1,158,000) 78,000
State ...... (150,000) 5,000
Total deferred -- (1,308,000) 83,000
$ -- $(2,564,000) $907,000
The Company has a net operating loss carryforward of $15,555,000 which
expires in 2011. Cash paid for income taxes amounted to $0, $31,000, and
$1,524,000 in 1996, 1995, and 1994, respectively.
A reconciliation of the statutory federal income tax rate of 34% to the
Company's effective income tax rate is as follows:
<TABLE>
<CAPTION>
Year ended December 31,
1996 1995 1994
<S> <C> <C> <C>
Income taxes (benefit) at
statutory rate (34%) ......... $(4,249,000) $(2,491,000) $ 995,000
State tax net of federal benefit (255,000) (100,000) 53,000
Research and development
tax credits .................. -- -- (47,000)
Benefit of Foreign
Sales Corporation ............ -- -- (70,000)
Effect of tax rate changes on
NOLcarryback ................. -- 171,000 --
Valuation allowance ............ 4,496,000 -- --
Other .......................... 8,000 (144,000) (24,000)
Provision (benefit) for
income taxes ................. $ -- $(2,564,000) $ 907,000
Effective rate ................. -- 35% 31%
</TABLE>
NOTE 7
Retirement Salary Savings Plan
The Company has a defined contribution 401(k) plan that covers all full-time
employees who have one year of vested service. Employees are allowed to
contribute up to 15% of their pre-tax income to the plan. Employee salary
deferrals are matched by the Company at a rate of 100% of the first 1% of salary
deferred and 25% of the next 4% of salary deferred. The Company contributions to
this plan for each of the years ended December 31, 1996, 1995, and 1994 were
$61,000, $34,000, and $18,000, respectively.
NOTE 8
Sales and Segment Information
The Company, operating in a single business segment, designs, manufactures and
markets water purification products. The Company's manufacturing and
distribution operations are located within the United States. Export sales for
1996, 1995, and 1994 amounted to $3.9 million, $2.6 million, and $3.1 million,
respectively. During 1996, three customers accounted for approximately 23% of
the total net sales. During 1995, four customers accounted for approximately 39%
of the total net sales. During 1994, two customers accounted for approximately
39% of the total net sales.
NOTE 9
Commitments
The Company has noncancelable operating lease agreements for its
facilities in Minneapolis, Minnesota extending through December 2000. Under the
terms of the lease agreements, the Company is responsible for base rent and all
operating costs associated with the building. Total rent expense was $469,000,
$393,000 and $200,000 for the years ended December 31, 1996, 1995 and 1994,
respectively. Future minimum rental lease commitments are as follows: 1997 --
$281,000; 1998 -- $256,000; 1999 -- $228,000; 2000 -- $249,000.
In the fourth quarter of 1996, management approved the Company's plan to
relocate to a new facility. In 1997, the Company entered into a noncancelable
operating lease agreement for a new facility in Brooklyn Park, Minnesota
extending through April 2007. Under the terms of the lease agreement, the
Company will be responsible for base rent and all operating costs associated
with the building. Future minimum rental lease commitments are as follows: 1997
- -- $462,000; 1998 -- $613,000; 1999 -- $613,000; 2000 -- $613,000; 2001 --
$613,000; thereafter - $3,676,000.
The Company provided a reserve of $973,000 at December 31, 1996, for costs
primarily related to the writedown of certain fixed assets, buildout costs,
future lease payments on the original lease, and real estate commissions
associated with the relocation to its new facility.
PAGE 15
REPORT OF INDEPENDENT AUDITORS
Board of Directors
Recovery Engineering, Inc.
We have audited the accompany balance sheets of Recovery Engineering, Inc. as of
December 31, 1996 and 1995, and the related statements of operations, changes in
shareholders' equity and cash flows for each of the three years in the period
ended December 31, 1996. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements 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 statement presentation. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Recovery Engineering, Inc.
at December 31, 1996 and 1995, and the results of its operations and its cash
flows for each of the three years in the period ended December 31, 1996, in
conformity with generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
January 31, 1997
COMMON STOCK
Recovery Engineering, Inc. common stock is listed on the Nasdaq National Market
under the symbol: REIN. The following table details, for the periods indicated,
the high and low closing sale prices for the company's stock as reported by
Nasdaq:
1996 1995
High Low High Low
1st Quarter......... $15.75 $ 8.25 $19.25 $13.50
2nd Quarter......... 17.50 10.25 18.00 13.75
3rd Quarter......... 14.25 11.50 16.50 11.50
4th Quarter......... 12.38 6.50 16.25 12.75
As of March 7, 1997, there were 221 shareholders of record for the company's
common stock and approximately 2,202 other beneficial owners whose stock is held
in street name at brokerage houses. Recovery Engineering has not paid any cash
dividends on its common stock and does not anticipate paying any cash dividends
in the foreseeable future.
QUARTERLY FINANCIAL INFORMATION
(Unaudited - in thousands, except per share data)
1996 Quarter Ended
March 31 June 30 Sept. 30 Dec. 31
Sales ......... $ 6,440 $ 6,598 $ 11,001 $ 9,238
Gross profit .. 2,454 2,522 4,239 3,306
Net loss ...... (1,921) (1,722) (2,916) (5,940)
Net loss per
common share (.45) (.40) (.67) (1.37)
1995 Quarter Ended
March 31 June 30 Sept. 30 Dec. 31
Sales ......... $ 5,208 $ 3,608 $ 8,211 $ 5,894
Gross profit .. 2,475 1,466 3,671 1,350
Net income (loss).. 273 (901) (85) (4,049)
Net income (loss) per
common share .06 (.21) (.02) (.95)
<TABLE>
<CAPTION>
SELECTED FINANCIAL DATA
(In thousands, except per share data) Years Ended December 31,
Operations Data: 1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
Sales ............................ $ 33,277 $ 22,921 $16,671 $10,292 $7,282
Gross profit ..................... 12,521 8,962 8,774 5,304 3,428
Pretax income (loss) ............. (12,499) (7,326) 2,926 2,202 1,101
Income taxes (benefit) ........... -- (2,564) 907 705 297
Net income (loss) ................ (12,499) (4,762) 2,019 1,497 804
Net income (loss) per common share $ (2.90) $ (1.12) $ .50 $ .45 $ .32
Average shares outstanding ....... 4,307 4,239 4,056 3,318 2,539
December 31,
Balance Sheet Data: 1996 1995 1994 1993 1992
Total assets ..................... $ 33,257 $ 23,622 $25,054 $10,025 $4,036
Working capital .................. 9,743 10,051 14,754 7,458 1,886
Long-term debt ................... 15,000 -- -- -- --
Shareholders' equity ............. 7,131 19,430 22,895 8,667 3,142
</TABLE>
PAGE 16
Exhibit 21.1
SUBSIDIARIES OF RECOVERY ENGINEERING, INC.
Jurisdiction of Percent
Name Incorporation Owned
- ---- ------------- -------
Recovery Engineering International, Ltd. Barbados 100%
Recovery Engineering, Inc.. Minnesota 100%
Exhibit 23.1
Exhibit 23.1
Consent of Ernst & Young LLP
We consent to the incorporation by reference in this Annual Report (Form 10-K)
of Recovery Engineering, Inc. of our report dated January 31, 1997, included in
the 1996 Annual Report to Shareholders of Recovery Engineering, Inc.
Our audits also included the financial statement schedule of Recovery
Engineering, Inc. listed in Item 14(a). This schedule is the responsibility of
the Company's management. Our responsibility is to express an opinion based on
our audits. In our opinion, the financial statement schedule referred to above,
when considered in relation to the basic financial statements as a whole,
presents fairly in all material respects the information set forth therein.
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-63214) pertaining to the 1986 Stock Option Plan, in the Registration
Statement (Form S-8 No.33-6088) pertaining to the 1993 Director Stock Option
Plan, in the Registration Statement (Form S-8 No. 33-76544) pertaining to the
1994 Stock Option and Incentive Plan of Recovery Engineering, Inc. and in the
common shares of Recovery Engineering, Inc. incorporated herein by reference,
and our report included in the preceding paragraph with respect to the financial
statement schedule in this Annual Report (Form 10-K) of Recovery Engineering,
Inc.
/s/ Ernst & Young
Minneapolis, Minnesota
March 27, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
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0
0
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</TABLE>
