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EXHIBIT 10.19
AMENDMENT TO LEASES
This Lease Amendment (the "Amendment") is entered into by and between
Gerber Childrenswear, Inc. ("Gerber"), a Delaware corporation, and The
Industrial Development Board of the City of Evergreen, Alabama (the "IDB"), a
public corporation and instrumentality under the laws of the State of Alabama,
as of this 28th day of August, 1997.
WHEREAS, the IDB has solicited Gerber to occupy that certain manufacturing
facility and surrounding real estate located in Evergreen, Alabama (the
"Facility"), a portion of which is the subject of a lease agreement dated
November 1, 1967 (the "1967 Lease") between the IDB and Xxxxxxxx Foods Co.
("Xxxxxxxx"), which 1967 Lease has been assigned from Xxxxxxxx to Xxx Xxxx
Curtain Corporation, and then from Xxx Xxxx Curtain Corporation to Xxx Xxxx
Realty, Inc. (together, "Xxx Xxxx") and the remaining portion of which is the
subject of a lease agreement dated May 1, 1978 between the IDB and Xxxxxxxx (the
"1978 Lease") which has also been assigned to Xxx Xxxx; and
WHEREAS, Gerber has agreed to occupy the Facility, and to establish a
portion of its business in the Facility, which business will employ certain of
the residents of Evergreen, Alabama, to the benefit of the IDB; and
WHEREAS, to that end, Gerber has taken an assignment of the 1967 Lease and
of the 1978 Lease from Xxx Xxxx; and
WHEREAS, the 1967 Lease gives Gerber a leasehold interest in a portion of
the Facility (the "1967 Leased Property") through midnight, October 31, 2007
(the "Current Term") at a rental of Two Thousand Dollars ($2.000.00) per year;
and
WHEREAS, the 1978 Lease gives Gerber a leasehold interest in the remaining
portion of the Facility (the "1978 Leased Property") through the Current Term,
at an additional rent of Two Thousand Dollars ($2.000.00) per year; and
WHEREAS, the 1978 Lease gives Gerber the option to purchase both the 1967
Leased Property and the 1978 Leased Property at any time during the Current Term
for the purchase price of One Dollar ($1.00) each; and
WHEREAS, Gerber desires to have the option to extend the Current Term of
the 1967 Lease and the 1978 Lease from October 31, 2007 until October 31, 2012
(the "Revised Term") upon the same terms and conditions set forth in the 1967
and 1978 Leases and in this Amendment; and
WHEREAS, Gerber further desires to have the sole option to extend the
Revised Term for both the 1967 Lease and the 1978 Lease from October 31, 2012 to
October 31, 2022 (the "Extended
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Term") upon the same terms and conditions set forth in the 1967 and 1978 Leases
and in this Amendment; and
WHEREAS, Gerber further desires, having paid a significant amount of money
to Xxx Xxxx for the leasehold interest in the 1967 Leased Property under the
1967 Lease, to reduce the rental due under the 1967 Lease for the remainder of
the Current Term, the Revised Term and the Extended Term, if any, from Two
Thousand Dollars ($2,000.00) per annum to One Dollar ($1.00) per annum; and
WHEREAS, Gerber further desires, having paid a significant amount of money
to Xxx Xxxx for the leasehold interest in the 1978 Leased Property under the
1978 Lease, to reduce the rental due under the 1978 Lease for the remainder of
the Current Term, the Revised Term and the Extended Term, if any, from Two
Thousand Dollars ($2,000.00) per annum to One Dollar ($1.00) per annum; and
WHEREAS, the IDB desires to xxxxx Xxxxxx such reductions in rent and
extensions of the Current Term in exchange for Gerber's agreement to locate a
portion of its business in the Facility.
NOW THEREFORE, in exchange for the mutual consideration stated herein, the
value and efficiency of which is hereby acknowledged by both parties, the
parties hereto agree to amend the 1967 Lease and the 1978 Lease as follows:
1. Leases. This Amendment amends the 1967 Lease between Xxxxxxxx and
the IDB, and the 1978 Lease between Xxxxxxxx and the IDB, as each
have been assigned to Xxx Xxxx and further assigned to Gerber,
copies of which are attached hereto. The IDB hereby represents and
warrants to Gerber that both such leases are valid in accordance
with their terms and sufficient to convey a leasehold interest in
the Facility to Gerber.
2. Term. The Current Term for the 1967 Lease expires on October 31,
2007. The Current Term for the 1978 Lease also expires on October
31, 2007. Pursuant to this Amendment, the Current Term of both
leases is hereby extended until October 31, 2012 (the "Revised
Term"). Furthermore, Gerber is hereby given the sole option to
extend the Revised Term from October 31, 2012 until October 31, 2022
(the "Extended Term"). Gerber may exercise this option by giving
written notice to the IDB prior to the expiration of the Revised
Term.
3. Rent. The rent due from Gerber to the IDB under the 1967 Lease from
the date hereof until the expiration of the Revised Term and the
Extended Term (if any) shall be One Dollar ($1.00) per year (the
"1967 Rent"). The rent due from Gerber to the IDB under the 1978
Lease from the date hereof until the expiration of the Revised Term
and the Extended Term (if any) shall be One Dollar ($1.00) per year
(the "1978 Rent").
4. Option to Purchase. The parties hereto acknowledge and agree that,
pursuant to the terms and conditions of the 1978 Lease, Gerber
currently has the right to purchase the 1967 Leased Property and the
1978 Leased Property for the total purchase price
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of Two Dollars ($2.00) at any time during the Current Term. The
parties hereby agree that Gerber shall additionally have the option
to purchase the 1967 Leased Property for One Dollar ($1.00) at any
time during the Revised Term or the Extended Term (if any) pursuant
to the terms and conditions set forth in Section 9.7 of the 1978
Lease. Furthermore, Gerber shall have the option to purchase the
1978 Leased Property for One Dollar ($1.00) at any time during the
Revised Term or the Extended Term (if any) pursuant to the terms and
conditions set forth in Section 9.4 of the 1978 Lease.
5. Attorney's Fees. The parties hereto agree that each party shall be
responsible for the payment of its own attorney's fees and expenses
incurred during all negotiations and during the drafting and
execution of all agreements surrounding Gerber's decision to locate
the Facility in Evergreen, Alabama. Notwithstanding the foregoing,
in the event of a dispute between the parties hereto concerning any
provision of this Amendment or of the 1967 Lease or of the 1978
Lease, each as assigned to Gerber, or of any other matter related to
Gerber's relocation of its distribution facility to Evergreen,
Alabama, the prevailing party in such dispute shall pay the other
party's reasonable costs and attorney's fees.
6. Governing Law. This Amendment shall be governed by the laws of the
State of Alabama.
IN WITNESS WHEREOF, Gerber and the IDB have caused this Amendment to be executed
in their respective corporate names, have caused their respective corporate
seals to be hereunto affixed, and have caused this Amendment to be attested, all
by their duly authorized officers.
(Signatures on next page)
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GERBER CHILDRENSWEAR, INC.
By: /s/ Xxx X. Xxxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxxx
Its: Vice President
SEAL
Attest: /s/ Xxxxxxx X. XxXxxxx
------------------------------
Its: Vice President/Human Resources
INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF EVERGREEN
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Its: Chairman
SEAL
Attest: /s/ Xxxxxx Xxxxxx
------------------------------
Its: Secretary
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================================================================================
This instrument was prepared by: F. Xxxxxx Xxxxxxx, Cabaniss, Johnston,
Xxxxxxx, Xxxxx & X'Xxxx, Xxxx Xxxxxx Xxx 000000,
Xxxxxxxxxx, Xxxxxxx 00000-0000, (000) 000-0000
==============================================================================
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("this Agreement") is made as of
August ___, 1997, by and among XXX XXXX REALTY, INC., a Delaware corporation
("MKRI"), GERBER CHILDRENSWEAR, INC., a Delaware corporation ("Gerber"), XXX
XXXX CURTAIN CORPORATION, a Delaware corporation ("MKCC"), and THE INDUSTRIAL
DEVELOPMENT BOARD OF THE CITY OF EVERGREEN, a public corporation and
instrumentality of the state of Alabama (the "IDB").
For and in consideration of Ten and No/100 Dollars ($10.00) and other good
and valuable considerations the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. MKRI hereby assigns, transfers, sets over and conveys to Gerber all of
MKRI's right, title and interest in, to and under the following described lease
agreements, and the leasehold interests created thereby! including, but not
limited to, the right to exercise any and all options contained therein to
purchase the premises subject to such lease agreements, or any portion thereof,
to-wit:
That certain Lease Agreement made between the IDB, as lessor, and
Xxxxxxxx Foods Co., a Delaware corporation ("Xxxxxxxx Foods"), as lessee,
dated as of November 1, 1967 (the "1967 Lease"), and filed for record in
the office of the Judge of Probate of Conecuh County, Alabama, on November
27, 1967, and there recorded in Book A-89 of Deeds, Page 761, with the
1967 Lease having been (i) assigned by Xxxxxxxx Foods, as assignor, to
MKCC, as assignee, pursuant to that certain Assignment and Assumption
Agreement dated as of May 15, 1981, between Xxxxxxxx Foods, as assignor,
and MKCC, as assignee, and filed for record in the office of the Judge of
Probate of Conecuh County, Alabama, on May 19, 1981, and there recorded in
Book A-121 of Deeds, Page 626, and (ii) in turn assigned by MKCC, as
assignor, to MKRI, as assignee, by an Assignment Agreement dated of May
15, 1981, and filed for record in the office of the Judge of Probate of
Conecuh County, Alabama, on May 19, 1981, and there recorded in Book A-121
of Deeds, Page 649;
(and)
That certain Lease Agreement made between the IDB as lessor, and
Xxxxxxxx Foods, as lessee, dated as of May 1, 1978, and filed for record
in the office of the Judge of Probate of Conecuh County, Alabama, on July
13, 1978 (the "1978 Lease"), and there recorded in Book A-114 of Deeds,
Page 325, with the 1978 Lease having been (i) assigned by Xxxxxxxx
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Foods, as assignor, to MKCC, as assignee pursuant to that certain
Assignment and Assumption Agreement dated as of May 15, 1981, between
Xxxxxxxx Foods, as assignor, and MKCC, as assignee, and filed for record
in the office of the Judge of Probate of Conecuh County, Alabama, on May
19, 1981, and there recorded in Book A-121 of Deeds, Page 632, and (ii) in
turn, assigned by MKCC, as assignor, to MKRI, as assignee, by an
Assignment Agreement dated May 15, 1981, and filed for record in the
office of Judge of Probate of Conecuh County, Alabama, on May 19, 1981,
and there recorded in Book A-121 of Deeds. Page 649.
TO HAVE AND TO HOLD the same unto Gerber, its successors and assigns, from
and after the date hereof for all the rest and remainder of the term of years
(i) provided for in the 1967 Lease (as to the 1967 Lease) and (ii) provided for
in the 1978 Lease (as to the 1978 Lease), but in each instance subject to the
rents, covenants, conditions and provisions contained in the 1967 Lease and the
1978 Lease, respectively.
2. Anything contained herein to the contrary notwithstanding, MKRI makes
no warranties or representations except as expressly set forth herein and all
rights of MKRI in and to the premises and all improvements, structures and
fixtures thereon, are transferred on an as-is, where-is basis, subject to all
faults.
3. Gerber, in consideration of the foregoing assignment, for itself and
its successors and assigns, hereby accepts the foregoing assignment of the 1967
Lease and the 1978 Lease and hereby expressly agrees and assumes to perform all
obligations and to pay all sums hereafter required to be performed or paid by
MKRI or MKCC pursuant to the respective provisions of the 1967 Lease and the
1978 Lease. Gerber agrees to indemnify and hold MKRI and MKCC, and their
successors and assigns, harmless from any loss, expense or liability (including,
without limitation, legal fees) which MKRI and MKCC incur by reason of a breach
by Gerber of the foregoing covenant. The foregoing covenant of Gerber shall
survive and remain in full force and effect whether or not Gerber remains in
possession of the premises and whether or not Gerber assigns its rights under
either of (or both of) the 1967 Lease and the 1978 .
4. Anything contained herein to the contrary notwithstanding, MKRI shall
be entitled to remove certain property and fixtures located on the premises and
to vacate such premises, in accordance with the provisions of that certain
Closing Statement and Agreement entered into between MKRI and Gerber of even
date wherewith.
5. In order to confirm that MKCC has no interest under either (or both of)
the 1967 Lease and the 1978 Lease, or in the premises, MKCC does hereby remise,
release, quit claim and convey to Gerber all of the right, title, interest and
claim of MKCC, if any, in and to (i) the 1967 Lease and the leasehold interest
created thereby and (ii) the 1978 Lease and the leasehold interest created
thereby. MKCC is entering into this Agreement and making the quit claim
conveyance and assignment set forth in this paragraph to confirm to Gerber that
MKCC has no further interest in such property.
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TO HAVE AND TO HOLD the same unto Gerber, its successors and assigns, from
and after the day hereof for all the rest and remainder of the term, of years
(i) provided for in the 1967 Lease (as to the 1967 Lease) and (ii) provided for
in the 1978 Lease (as to the 1978 Lease), but in each instance subject to the
rents, covenants, conditions and provisions contained in the 1967 Lease and the
1978 Lease, respectively.
6. The IDB acknowledges that from and after the date hereof neither MKRI
nor MKCC shall continue to have liability for the payment of rent, or any other
amounts, due under the 1967 Lease and the 1978 Lease or for the performance and
observance of the other agreements and covenants to be performed and observed by
either MKRI or MKCC under the 1967 Lease and the 1978 Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written.
XXX XXXX REALTY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
President
ATTEST
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Its: Assistant Secretary
GERBER CHILDRENSWEAR, INC.
By: /s/ Xxx X. Xxxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxxx
Its: Vice President
ATTEST
By:
------------------------------
Its:
-------------------------
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XXX XXXX CURTAIN CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxx
President
ATTEST
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Its: Assistant Secretary
INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF EVERGREEN
By: /s/ Xxxxxxx Xxxxxx Xxxxxxx, II
----------------------------------
Xxxxxxx Xxxxxx Xxxxxxx, II
Chairman of its Board of Directors
ATTEST
By: /s/ Xxxxxx Xxxxxx
------------------------------
Its: Secretary
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RESOLUTION OF THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF EVERGREEN
WHEREAS, The Industrial Development Board of the City of Evergreen, a
public corporation under the laws of State of Alabama (the //Board"), is the
owner of a parcel of real estate and the improvements located thereon comprising
a manufacturing facility (the "Plant"); and
WHEREAS, the Plant is currently leased under the terms of a Lease
Agreement, dated November 1, 1967, and a Lease Agreement, dated May 1, 1978,
each to Xxxxxxxx Foods Co., and each as assigned to Xxx Xxxx Realty, Inc. (the
"Lease Agreements"); and
WHEREAS, the Board proposes to lease another property to Xxx Xxxx Realty,
Inc. and wishes to permit Xxx Xxxx Realty, Inc. to assign the Lease Agreements
to Gerber Childrenswear, Inc. ("Gerber"); and
WHEREAS, in lien of financing Gerber's acquisition through the issuance of
industrial development bonds by the Board, Regions Bank has agreed to lend to
Gerber all or a portion of the price to be paid by Gerber for the assignment of
the Lease Agreements and use of the Plant, which loan will be secured by, inter
alia, a leasehold mortgage from Gerber and a mortgage from the Board; and
WHEREAS, Gerber and the Board wish to extend the term of the Lease
Agreements for an additional term to expire October 31, 2012, and to grant to
Gerber an additional option ~ & extend the Lease Agreements an additional ten
years; and
WHEREAS, in order to meet the requirements of Regions Bank and thereby
permit the transaction to occur, the Board wishes to execute a mortgage covering
the Plant for the benefit Regions Bank;
NOW, THEREFORE, BE IT RESOLVED, by The Industrial Development Board of the
City of Evergreen, as follows:
1. Approval of Assignment and Amendment of Lease Agreements. The Board
hereby acknowledges and approves the assignment of the Lease Agreements by Xxx
Xxxx Realty, Inc. to Gerber, and the Amendment to the Lease Agreements in
substantially the form attached hereto as Exhibit "A." The Chairman or Vice
Chairman and Secretary or any Assistant Secretary of the Board are hereby
authorized and directed to execute any consent or other instrument requested by
the parties in connection with such acknowledgment and approval of the
assignment, and to execute the Amendment[s] in substantially the form attached
hereto, with such minor changes as may be approved by the Chairman or Vice
Chairman of the Board. The Board hereby waives any notice requirements with
respect to such assignments.
2. Delivery of Mortgage. The execution and delivery by the Board of a
Mortgage, in substantially the form attached hereto as Exhibit "B," is hereby
approved. The Chairman or Vice
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Chairman and the Secretary or any Assistant Secretary are hereby authorized and
directed to execute such Mortgage in substantially the form attached hereto,
with such minor changes as may be approved by the Chairman or Vice Chairman of
the Board, and to deliver such Mortgage on behalf of the Board to Regions Bank
as security for the loan by Regions Bank to Gerber.
3. Further Documents and Assurances: Limitation of Liability. The Chairman
or Vice Chairman and the Secretary or any Assistant Secretary of the Board are
hereby authorized and directed to execute such other acknowledgments,
certificates, instruments or other documents as shall be necessary and
appropriate to complete the transactions described above; provided, however,
that nothing herein shall be construed to impose a charge against the general
credit of the Board or any personal or pecuniary liability upon the Board, and
no officials or employees of the Board shall have any personal or pecuniary
liability whatever hereunder or under the Mortgage or any other instrument or
other document delivered on behalf of the Board or any liability for the breach
by the Board of any of the agreements on its part herein or therein contained.
Adopted this 28th day of August, 1997.
/s/ Xxxxxxx Xxxxxx Xxxxxxx, II
--------------------------------------
Chairman
/s/ Xxxxxx Xxxxxx
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Secretary
(SEAL)
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SECRETARY'S CERTIFICATE
I, Xxxxxx Xxxxxx, Secretary of The Industrial Development Board of the
City of Evergreen (the "Board"), DO HEREBY CERTIFY that the foregoing pages of
typewritten matter pertaining to Gerber Childrenswear, Inc., constitute a true
and correct copy of the Resolution duly adopted on August 28, 1997, by the
members of the board of directors of the Board in a meeting duly called and
assembled, and that the original of said Resolution appears of record in the
Minute Book of the Board which is in my custody and control.
GIVEN under my hand and the seal of The Industrial Development Board of
the City of Evergreen, this 28th day of August, 1997.
/s/ Xxxxxx Xxxxxx
--------------------------------------
Secretary
(SEAL)
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