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EXHIBIT 10.23
[STAMP]
STATE OF ALABAMA ) May 1, 1964
COUNTY OF XXXXXX )
LEASE AGREEMENT
Lease Agreement between THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF
DECATUR, a public corporation and instrumentality under the laws of the State of
Alabama (herein called the "Board"), and FRUEHAUF CORPORATION, a corporation
organized and existing under the laws of the State of Michigan and authorized to
do business in the State of Alabama (herein called the "Company").
R E C I T A L S:
The Board proposes to construct on the real property hereinafter
described an aluminum rolling mill and fabricating plant, to purchase the
machinery and equipment hereinafter described and to lease said real property,
plant, machinery and equipment to the Company. To finance the construction of
said plant and the purchase of said machinery and equipment, all for the
promotion of local manufacturing and industrial development, the Board proposes
to authorize the issuance of $2,000,000 principal amount of its First Mortgage
Industrial Revenue Bonds, to be dated May 1, 1964 (herein called the "Bonds"),
which are more particularly described in the Mortgage hereinafter referred to.
The Bonds are to be secured by a pledge and assignment of the Board's interest
in this Lease Agreement and by a pledge and assignment of the revenues and
receipts derived by the Board from the leasing or sale of the Project
hereinafter referred to and will be issued under and additionally secured by a
Mortgage and Indenture of Trust dated as of May 1, 1964, (herein called the
"Mortgage"), from the Board to the State National Bank of Alabama, Decatur,
Alabama (herein called the "Trustee"), under which the revenues and receipts
derived by the Board from the leasing or sale of the said Project will be
pledged for the payment of the principal of and the interest on the Bonds and
under which the said Project will be mortgaged and
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conveyed to the Trustee as additional security for payment of said principal and
interest. The Mortgage is to be in substantially the form attached hereto as
Exhibit A.
The construction of said plant, the purchase of said machinery and
equipment, the issuance and sale of the Bonds and the lease of said real
property, plant, machinery and equipment to the Company will promote industry
and develop trade by inducing manufacturing industrial and commercial
enterprises to locate in the State of Alabama, or to enlarge and expand existing
enterprises, or both, and further the use of its agricultural products and
natural resources. Under the provisions of Act No. 648 enacted at the 1949
Regular Session of the Legislature of Alabama, as amended, the Board has the
power to own said real property, to construct said plant thereon, to purchase
said machinery and equipment, to issue and sell the Bonds and to lease said real
property, plant, machinery and equipment to the Company. To achieve the
objectives mentioned above, the Board and the Company have entered into this
Lease Agreement.
Now, therefore, this Agreement
W I T N E S S E T H:
That in consideration of the respective agreements on the part of the
Board and the Company hereinafter contained, the Board does hereby lease to the
Company, and the Company does hereby rent from the Board, for and during the
Primary Term hereinafter referred to and upon and subject to the terms and
conditions hereinafter specified, the following described real property
situated in Xxxxxx County, Alabama (the said real property being herein called
the "Leased Realty"):
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Beginning at the Northwest corner of Section 00, Xxxxxxxx 0 Xxxxx,
Xxxxx 0 Xxxx, Xxxxxx Xxxxxx, Xxxxxxx, and run thence S 0 degrees 54' W along the
west boundary line of said Section 13 a distance of 30 feet to a point on the
south right of way line of Alabama Xxxxxxx Xx. 00; thence S 89 degrees 03' E
along the south right of way line of said Alabama Xxxxxxx Xx. 00 a distance of
41.5 feet to an iron pin; thence S 0 degrees 54' W a distance of 423.38 feet to
a point; thence N 89 degrees 06' W a distance of 75.25 feet to the true point of
beginning; thence from the true point of beginning S 1 degree 05' W a distance
of 38 feet to a point; thence S 88 degrees 55' E a distance of 14.9 feet to a
point; thence S 1 degree 05' W a distance of 20.43 feet to a point; thence S
88 degrees 55' E a distance of 1.10 feet to a point; thence S 1 degree 05' W a
distance of 165.57 feet to a point; thence N 88 degrees 55' W a distance of 16
feet to a point; thence S 1 degree 05' W a distance of 249.05 feet to a point;
thence S 88 degrees 55' E a distance of 16 feet to a point; thence S 1 degree
05' W a distance of 172 feet to a point; thence N 88 degrees 55' W a distance of
204.42 feet to a point; thence N 1 degree 05' E a distance of 82 feet to a
point; thence S 88 degrees 55' E a distance of 124.42 feet to a point; thence N
1 degree 05' E a distance of 564.05 feet to a point; thence S 88 degree 55' E a
distance of 64 feet to the true point of beginning; together with (i) the right
to connect and join any building, structure or improvement that may be
constructed on the above described real property with existing structures,
facilities and improvements adjacent to or abutting said real property, (ii) the
right to tie into existing utilities situated on property adjacent to or
abutting said real property and (iii) the right of ingress and egress to and
from Alabama Xxxxxxx Xx. 00 over property situated north of the above described
real property, which right of ingress and egress, however, shall not interfere
with the use and occupancy of existing structures, improvements or buildings.
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together with the Plant and the Leased Equipment (hereinafter identified) and
all other improvements thereto now or hereafter made (the said real property,
plant, improvements, machinery and equipment, as they may at any time exist,
being herein together called the "Project"). The Leased Equipment shall consist
of the following items, which shall be further identified by the following
serial numbers to be affixed thereto by the Company as provided in Section 1.5
of this Lease Agreement:
Serial
Number Item
------ ----
1-64A Continuous casting line for casting sheets 58" wide
including 50,000 pound capacity melting furnace.
2-64A Continuous casting line for casting sheets 58" wide
including 50,000 pound capacity melting furnace.
3-64A Marinite tip milling machine and drying oven
4-64A C02 gas generator
5-64A Annealing furnace with an 80,000 lb. capacity.
The items of Leased Equipment identified by serial number 4-64A, the C02 gas
generator, and by serial number 5-64A, the annealing furnace, shall be installed
in the Plant (hereinafter defined) at the location shown on the following plat
or drawing and the items of Leased Equipment identified by serial number 1-64A
and 2-64A, the two continuous casting lines, and serial number 3-64A, the
marinite tip milling machine and drying oven, will be installed in the building
adjacent to and west of the Plant (herein called the "Adjacent Building") at the
respective locations shown on said plat or drawing:
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[MAP]
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The following legends appearing on the foregoing plat or drawing, to-wit, 1-63A,
2-63A, 3-63A, 4-63A, 5-63A, 6-63A, 7-63A, 8-63A, 9-63A, 10-63A, 11-63A 12-63A,
l3-63A, 14-63A, 15-63A, 16-63A, and 17-63A, show the location of various items
of machinery and equipment now owned by the Board (herein called the "Existing
Equipment") and now installed in the Adjacent Building which Existing Equipment
and Adjacent Building are subject to that certain Mortgage and Indenture of
Trust between the Board and the State National Bank of Alabama, recorded in the
office of the Judge of Probate of Xxxxxx County in Volume 709 at Pages 568, et
seq., securing $5,700,000 principal amount of the Board's First Mortgage
Industrial Revenue Bonds dated May 1, 1963, as supplemented by the Supplemental
Mortgage and Indenture of Trust recorded in the office of the Judge of Probate
of Xxxxxx County in Volume 732 pages 637, and which Existing Equipment and
Adjacent Building are now leased by the Board to Fruehauf Corporation under
separate Lease Agreement dated May 1, 1963, and recorded in the office of the
Judge of Probate of Xxxxxx County in Volume 709 at pages 630, et seq., and
Supplemental Lease Agreement recorded in said office in Volume 732 at pages 645,
The Adjacent Building and the Existing Equipment are not subject to the
provisions of this Lease Agreement but are shown on the aforesaid plat or map
solely for identification purposes and solely for the purpose of showing the
location of the Existing Equipment in relation to the items of Leased Equipment
which are subject to the provisions of this Lease Agreement.
This Lease Agreement is made upon and subject to the following terms and
conditions, to each of which the Board and the Company hereby agree:
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ARTICLE I
ACQUISITION OF THE PLANT AND THE
LEASED EQUIPMENT
Section 1.1 Agreement to Construct Plant and to Purchase Leased
Equipment. Promptly following the issuance and sale of the Bonds and out of the
principal proceeds derived therefrom, the Board (a) will construct on the Leased
Realty an aluminum rolling mill and fabricating plant with approximately 48,000
square feet of floor space substantially in accordance with plans and
specifications therefor to be prepared by the Company for the account of the
Board and to be furnished to the Board by the Company, and (b) will purchase the
Leased Equipment. All contracts and orders for such construction and purchase,
which contracts and orders may provide for progress payments, and all request
for payments out of the Construction Fund (to be created in the Mortgage and
herein called the "Construction Fund") shall be signed on behalf of the Board,
subject to written approval by the Company in all respects. If after the
exercise of due diligence by the Board, it is impossible for the Board to
construct any part of the Plant which the Company duly orders and directs the
Board so to construct or to purchase any item of the Leased Equipment which the
Company duly orders and directs the Board so to purchase, the Company (a) will
withdraw the order and direction in question, or (b) will itself effect the
construction or purchase ordered thereby, for and in the name and on behalf of
the Board, in which case the Company shall be entitled to reimbursement from the
Construction Fund for the costs incurred by it in effecting such construction or
purchase, as the case may be.
The Board and the Company shall from time to time each appoint by
written instrument an agent or agents authorized to act for each respectively in
any or all matters relating to the construction of the Plant, the purchase of
the Leased Equipment and
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payments out of the Construction Fund. One of the agents appointed by the
Company shall be designated its "Project Manager". Either the Board or the
Company may from time to time revoke, amend or otherwise limit the authorization
of any agent appointed by it to act on its behalf and designate another agent or
agents to act on its behalf, provided that there shall be at all times at least
one agent authorized to act on behalf of the Board, and at least one agent (who
shall be the Project Manager) authorized to act on behalf of the Company, with
reference to all the foregoing matters. In the event that after reasonable
request made to the Board by the Company, the Board fails or refuses to enter
into or execute any contract or order for such construction or purchase and
fails or refuses to issue or execute a payment requisition from the Construction
Fund for payment of any item that may under the terms of the Mortgage be paid
from the Construction Fund, the Project Manager then designated by the Company,
who is hereby irrevocably appointed as agent for the Board for such purposes,
(a) may enter into, execute and deliver any such contract or order, for and in
the name and on behalf of the Board, or (b) may issue and execute, also for and
in the name and behalf of the Board and without any approval of any officer,
employee or other agent thereof, payment requisition on the Construction Fund,
as the case may be.
Section 1.2 Development and Design Expenses Incurred by Company. In
order to expedite the construction of the Plant, the Board has heretofore
authorized the Company to go forward with the planning, development and design
thereof and with the planning, development and design of the items of Leased
Equipment. The Board acknowledges that all reasonable costs, expenses and fees
(including, without limitation, engineering, legal, procurement, accounting and
auditing fees and expenses) incurred by the Company in connection with such
planning, development and design (whether
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before or after the execution and delivery of this Lease Agreement or before or
after the issuance and sale of the Bonds) constitute a part of the project
costs, for which the Company shall be entitled to reimbursement from the
Construction Fund.
Section 1.3 No Warranty of Suitability by Board. The Company recognizes
that since the plans and specifications for the Plant are to be prepared by it
and that since the items of Leased Equipment are to be selected by it, the Board
can make no warranty, either express or implied, or offer any assurances that
the Plant or the Leased Equipment will be suitable for the Company's purposes or
needs or that the proceeds derived from the sale of the Bonds will be sufficient
to pay in full all the project costs.
Section 1.4 Completion of the Project. If the Construction Fund shall be
insufficient to pay fully all sums required to construct the Plant and purchase
all items of Leased Equipment, the Company shall be obligated to complete the
construction and acquisition of the Project without interruption, at its own
expense and the Company shall pay any such deficiency by making payments
directly to the construction contractor or contractors and to the suppliers of
materials, machinery and equipment as the same shall become due, and the Company
shall save the Board whole and harmless from any obligation to pay such
deficiency. The Company shall not by reason of the payment of such excess costs
from its own funds be entitled to any diminution in the payment of the rents
hereunder.
Should the Company fail to comply with the foregoing provisions of this
section, the Board shall have any one or more of the following remedies:
(a) The Trustee shall be entitled to retain all payments made as rent
under this Lease Agreement by the Company, and the Company shall be obligated to
pay to the Trustee the rental payments as they become due as liquidated damages,
subject, however, to a credit for the net proceeds which the Trustee may receive
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from the sale of the Project or any part thereof, or from the lease or sublease
of the Project or any part thereof to others than the Company herein, during and
for the unexpired term of this Lease Agreement; or
(b) The Board may take possession of the Lease Realty and complete the
Project at the expense of the Company, which expense with six per cent interest
and a reasonable attorney's fee, if the services of an attorney are required for
the collection thereof, the Company hereby agrees to pay; or
(c) The Board may terminate this Lease Agreement and xxx for damages for
breach thereof.
Section 1.5 Installation of Leased Equipment. The Company hereby grants
to the Board the right to enter the Adjacent Building for the purpose of
installing therein the items of Leased Equipment hereinabove identified with
Serial Numbers 1-64A, 2-64A and 3-64A. None of said items of Leased Equipment
shall be so installed that it cannot be removed without injury to the Adjacent
Building. All of said items of Leased Equipment shall remain personal property
although physically attached to the Adjacent Building. At the time of the
installation of any item of Leased Equipment either in the Adjacent Building or
in the Plant and any renewals or replacements thereof as provided in Sections
3.1 and 4.1 hereof, the Company shall plainly, distinctly, permanently and
conspicuously place and fasten on each such item a metal plate, readily visible,
bearing the following words: "This equipment is the property of The Industrial
Development Board of the City of Decatur subject to the Mortgage and Indenture
of Trust dated May 1, 1964, Serial Number _______" and the Serial Number on the
metal plate on each item of the Leased Equipment shall correspond to the Serial
Number for such item as hereinabove set forth. In case any such plate shall at
any time be removed, defaced or destroyed, the Company shall immediately cause
the same to berestored or replaced.
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Section 1.6 The Company will not change the location of any items of
Leased Equipment either in the Plant or in the Adjacent Building without the
prior written approval of the Board and of the Trustee, which approvals shall
not be unreasonably withheld if the Company shall enter into a supplemental
agreement with the Board identifying the items of Leased Equipment with respect
to its new location and confirming the lease thereof hereunder.
ARTICLE II
DURATION OF LEASE TERM AND RENTAL PROVISION
Section 2.1 Duration of Term. The primary term of this Lease Agreement
and of the lease herein made (herein called the "Primary Term") shall begin on
the date the construction of the Plant and the installation of the Leased
Equipment are completed or on May 1, 1965, whichever date is earlier, and,
subject to the provisions of this Lease Agreement, shall continue until midnight
of April 30, 1984, but the Company will be permitted to have such possession of
the Project prior to the beginning of the Primary Term as shall not interfere
with the construction of the Plant and the installation of the Leased Equipment.
The Board will deliver to the Company sole and exclusive possession of the
Project on the commencement date of the Primary Term, subject to the inspection
and other rights reserved in Section 6.2 hereof, and the Company will accept
possession thereof at such time; provided, however, that in the event the
Primary Term begins prior to the date the construction of the Plant and the
installation of the Leased Equipment therein are completed, the Board will be
permitted such possession of the Project as shall be necessary and convenient
for it to complete the construction of the Plant and the installation of the
Leased Equipment, and provided further, that the Board will be permitted such
possession of the Project as shall be necessary and convenient for it to
construct or install any additions or improvements and to
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make any repairs or restorations required or permitted to be constructed,
installed or made by the Board pursuant to the provisions hereof or pursuant to
the provisions of any agreement between the Company and the Board supplemental
hereto.
Section 2.2 Rental Provisions. For and during the Primary Term, the
Company will pay to the Board not less than the following basic rental (herein
called "Basic Rent") for use and occupancy of the Project:
(a) On or before the 20th day of each month beginning May 20, 1965, an
amount equal to one sixth (1/6) of the interest becoming due on all outstanding
Bonds on the next succeeding interest payment date, and;
(b) On October 20, 1965 and on each April 20 and October 20, thereafter,
an amount equal to the principal of the outstanding Bonds due and payable on the
then next succeeding semiannual principal payment date.
All Basic Rent payments shall be made directly to the Trustee or to its
successor as Trustee under the Mortgage, for the account of the Board and shall
be deposited in the Bond and Interest Fund established under the Mortgage. The
monthly and semiannual installment of Basic Rent shall continue until the amount
in the Bond and Interest Fund shall have become sufficient to pay in full the
principal of (including redemption premium), and interest on all outstanding
Bonds either at maturity or on earlier redemption. Any payment of Basic Rent due
hereunder that is not made within ten (10) days of the due date thereof shall
bear interest from that date until paid at the rate of 6% per annum.
The Company will also pay, as additional rental, the reasonable fees,
charges and expenses of the Trustee under the Mortgage (other than the initial
fee or charge of the Trustee) and of the paying agents for the Bonds, such fees,
charges and reimbursement
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for expenses to be paid directly to the Trustee and such paying agents for their
own account as and when such fees, charges and expenses become due and
payable.
Section 2.3 Obligations of Company Unconditional. The obligation of the
Company to pay the Basic Rent, to make all other payments provided for herein
and to perform and observe the other agreements and covenants on its part herein
contained shall be absolute and unconditional, irrespective of any rights of
set-off, recoupment or counter-claim it might otherwise have against the Board.
The Company will not suspend or discontinue any such payment or fail to perform
and observe any of its other agreements and covenants contained herein or
terminate this Lease Agreement for any cause, including, without limiting the
generality of the foregoing, any acts or circumstances that may constitute an
eviction or constructive eviction, failure of consideration or commercial
frustration of purpose, or any damage to or destruction of the Project, or the
taking by eminent domain of title to or the right to temporary use of all or any
of the Project, or any change in the tax or other laws of the United States of
America, the State of Alabama or any political subdivision of either thereof, or
any failure of. the Board to perform and observe any agreement or covenant,
whether express or implied, or any duty, liability or obligation arising out of
or connected with this Lease Agreement. Notwithstanding the foregoing, the
Company may, at its own cost and expense and in its own name or in the name of
the Board, prosecute or defend any action or proceeding or take any other action
involving third persons which the Company deems reasonably necessary in order to
secure or protect its rights of use and occupancy and the other rights
hereunder. The provisions of the first and second sentences of this section
shall apply only so long as any part of the principal of and the interest on the
Bonds remains outstanding and unpaid,
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and nothing contained therein shall be construed to affect adversely or to
impair the option to terminate this Lease Agreement granted in Section 8.2
hereof. Furthermore, except as provided in the first and second sentences of
this section, nothing contained herein shall be construed to be a waiver of any
rights which the Company may have against the Board under this Lease Agreement
or under any provision of law.
Section 2.4 Investment of Funds. The Board shall cause the Trustee to
invest and reinvest the monies from time to time in the Construction Fund and
the monies from time to time in the Bond and Interest Fund in the manner and to
the extent and with such application of the income therefrom as is provided in
the Mortgage.
ARTICLE III
MAINTENANCE, TAXES AND INSURANCE
Section 3.1 Maintenance, Alterations and Improvements.
(a) The Company will, at its own expense, (i) keep the Project in as
reasonably safe condition as its operations permit, and (ii) keep the Plant and
the Leased Equipment in good order and repair, and from time to time make all
needful and proper repairs, renewals and replacements thereto. The Company
agrees to pay all gas, electric light and power, water, sewer and all other
charges for the operation, maintenance, use and upkeep of the Plant, Leased
Equipment and Project.
(b) The Company may, also at its own expense, make any additions,
improvements or alterations to the Project that it may deem desirable for its
business purposes, provided that such additions, improvements or alterations do
not adversely affect the value or utility of the Project or its character as a
"project" under said Act No. 648. In lieu of making such additions, improvements
or alterations itself, the Company may, if it so desires, furnish to the Board
the funds necessary therefor, in which case
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the Board will proceed to make such additions, improvements or alterations.
(c) All such additions, improvements and alterations whether made by the
Company or the Board shall become a part of the Project and shall be covered by
the Mortgage; provided however, that any machinery, equipment, furniture or
fixtures installed by the Company (not the Board) on the Project without expense
to the Board and not constituting a part of the Leased Equipment or repairs,
renewals or replacements of the Leased Equipment or the Plant may be removed by
the Company at any time and from time to time while it is not in default under
the terms of this Lease Agreement; and provided further that any damage to the
Project occasioned by such removal shall be repaired by the Company at its own
expense. The Company will not permit any mechanics or other liens to stand
against the Project for labor or material furnished it in connection with any
additions, improvements, alterations or repairs so made by it. The Company may,
however, in good faith contest any such mechanics' or other liens and in such
event may permit any such liens to remain unsatisfied and undischarged during
the period of such contest and any appeal therefrom unless by such action the
lien of the Mortgage on the Project or any part thereof, or the Project or any
part thereof shall be subject to loss or forfeiture, in either of which events
such mechanics' or other liens shall be promptly satisfied.
(d) The Company may, also at its own expense, connect or "tie-in" walls
and utility and other facilities located on the Leased Realty to other
facilities owned or leased by it on real property adjacent to the Leased Realty
or partly on such adjacent real property and partly on the Leased Realty but
only if the Company furnishes the Board and the Trustee a certificate of a
nationally recognized independent consulting engineering firm that such
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connection and "tie-in" of walls and facilities will not impair the operating
unity of the Plant (that is, the operating unity of that portion of said Plant,
as extended, that is located wholly within the boundary lines of the Leased
Realty).
Section 3.2 Taxes, Other Governmental Charges and Utility Charges. The
Board and the Company acknowledge (a) that under present law no part of the
Project owned by the Board will be subject to ad valorem taxation by the State
of Alabama or by any political or taxing subdivision thereof and that under
present law the income and profits (if any) of the Board from the Project are
not subject to either Federal or Alabama taxation, and (b) that these factors,
among others, induce the Company to enter into this Lease Agreement. However,
the Company will pay, as the same respectively become due, all taxes and
governmental charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to the Project or the Leased
Equipment or any machinery, equipment or other property installed or brought by
the Company in the Plant (including, without limiting the generality of the
foregoing, any taxes levied upon or with respect to the income or profits of the
Board from the Project which, if not paid, will become a lien on the Project
prior to the lien of the Mortgage or a charge on the revenues and receipts
therefrom prior to the charge thereon and pledge or assignment thereof to be
created and made in the Mortgage), all utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Project, and all
assessments and charges lawfully made by any governmental body for public
improvements that may be secured by lien on the Project; provided, that with
respect to special assessments or other governmental charges that may lawfully
be paid in installments over a period of years, the Company shall be obligated
to pay only such installments as are required to be paid during the term hereof.
The foregoing
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provisions of this section shall be effective only so long as any part of the
principal of or the interest on the Bonds remains outstanding and unpaid.
The Company may, at its own expense and in its own name and behalf or
in the name and behalf of the Board, in good faith contest any such taxes,
assessments and other charges and, in the event of any such contest, may permit
the taxes, assessments or other charges so contested to remain unpaid during the
period of such contest and any appeal therefrom unless by such action the title
of the Board to any part of the Project shall be materially endangered or the
Project or any part thereof shall become subject to loss or forfeiture in which
event such taxes, assessments or charges shall be paid prior to becoming
delinquent. The Board will cooperate fully with the Company in any such contest.
Section 3.3 Insurance. (a) The Company will cause the Project to be
insured and at all times keep the Project insured, even during the acquisition
thereof, against loss and/or damage to the Project, under a policy or policies
in form and amount covering such risks as are ordinarily insured against by
similar manufacturing plants, machinery and equipment, including, without
limiting the generality of the foregoing, fire and other perils customarily
covered by the extended coverage clause of fire insurance policies, windstorm,
explosion, tornado, lightning, riots, strikes, civil commotion and malicious
damage. The Company will pay all premiums on such insurance. All such policies
shall be for the benefit of the Board, the Company and the Trustee as their
interests shall appear, shall be made payable to the Trustee and shall be
deposited with the Trustee, and the Trustee shall have the sole right to receive
the proceeds from such policies and to collect and receipt for claims
thereunder. All such insurance policies shall be taken out and maintained in
generally recognized responsible insurance
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companies, each of which is qualified and authorized to assume the respective
risks undertaken, and shall be in the amount of (a) the full insurable value of
the Project, or (b) the amount required to pay the principal of and interest on
the Bonds as they mature and come due, or (c) the redemption price thereof,
whichever is less. No policy of insurance shall be so written that the proceeds
thereof will produce less than the minimum coverage required by the preceding
sentence, by reason of co-insurance provisions or otherwise, without the prior
consent thereto in writing by the Trustee. In lieu of depositing the policy or
policies of insurance with the Trustee, the Company may deposit with the Trustee
a certificate or certificates of the respective insurers attesting the fact that
such insurance is in force and effect. Prior to the expiration or cancellation
of any such policy, the Company will furnish the Trustee satisfactory evidence
that such policy has been renewed or replaced by another policy. The Company may
insure under a blanket insurance policy or policies, and in the event the
insurance coverage is by such blanket insurance coverage, it shall be sufficient
to furnish to the Trustee a certificate or duplicate copy of each such blanket
policy of insurance.
(b) The Company shall also take out and at all times maintain and pay
the premium on policies of insurance in generally recognized responsible
insurance companies, each of which is qualified to assume the risks, for the
benefit of the Trustee, the Board and the Company as their interest may appear,
against liability for injuries to persons and property or death or accidental
injuries occurring on or about the Plant, or in or about adjoining streets and
passageways, or in connection with the Leased Equipment, in the minimum amount
of $100,000 liability to any one person for personal injury or death, $25,000
liability to any one person for property damage, and $500,000 liability for any
one accident. Such
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insurance shall be provided from the date any of the Bonds are sold and
delivered by the Board and shall be effective while the Project is being
constructed as well as thereafter during the entire term of the lease. The
insurance policies or certificates evidencing the same shall be filed with the
Trustee so long as any of the Bonds shall be outstanding and thereafter with the
Board. Such policies or certificates shall be filed with the Trustee on or
before the delivery and sale of any of the Bonds. Such insurance may also be
provided under a blanket insurance policy or policies as hereinabove provided.
Section 3.4 Advances by Board or Trustee. In the event the Company
fails to take out or maintain the full insurance coverage required by this Lease
Agreement, fails to pay the taxes and other charges referred to in Section 3.2
hereof at or prior to the time they are there required to be paid, or fails to
keep the Project in as reasonably safe condition as its operating conditions
permit and the Plant and the Leased Equipment in good order and repair, the
Board or the Trustee, after first notifying the Company of any such failure on
its part, may (but shall not be obligated to) take out the required policies of
insurance and pay the premiums on the same, pay such taxes or other charges or
make such repairs, renewals and replacements as may be necessary to maintain the
Project in as reasonably safe condition as the Company's operations permit and
the Plant and the Leased Equipment in good order and repair, respectively; and
all amounts so advanced therefor by the Board or the Trustee shall become an
additional obligation of the Company to the Board or to the Trustee, as the case
may be, which amounts, together with interest thereon at the rate of 6% per
annum from the date thereof, the Company will pay. Any remedy herein vested in
the Board or the Trustee for the collection of the rental payments shall also be
available to the Board and the Trustee for the collection of all such amounts so
advanced.
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Section 3.5 Indemnity of Board. The Board shall not be liable for any
damage or personal injury to the Company, its officers, employees or the public,
caused by or growing out of any breakage, leakage, getting out of order, or
defective condition of any item of Leased Equipment or of water or sewer pipe,
fixtures, toilets, plumbing, electric wires, gas pipes, apparatus, or
connections, or machinery or equipment or any of them, on the Leased Realty, or
caused by or growing out of any defects in the Project or any part thereof, even
if such defect occurred or existed prior to the delivery of possession of the
Leased Realty and the Project to the Company. The Company shall save the Board
harmless from any action, suit, judgment, or liability against the Board on
account of any defects in the condition of the Leased Realty, the Plant or the
Leased Equipment for any personal injury or property damage occasioned or
claimed to have been occasioned thereon or thereby and shall defend the Board
against all such claims at Company's expense. The Board shall promptly notify
Company of any and all such claims and shall cooperate with the Company in the
defense thereof. Failure of the Board to notify the Company of such claim
within time to permit the Company to defend against such claim will release the
Company of the liability to defend against such claim.
ARTICLE IV
PROVISIONS RESPECTING DAMAGE,
DESTRUCTION AND CONDEMNATION
Section 4.1 Damage and Destruction Provisions. In the event that the
Project, including any item of Leased Equipment, is destroyed or damaged, by
whatever cause, the Company shall have the option (a) to continue to pay the
rent and to cause the Project to be repaired or rebuilt in the same condition
and value as immediately preceding the event causing such loss, or (b) to pay to
the Trustee for the account of the Bond and Interest Fund, held by the
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Trustee under the Mortgage, a sum which, when added to all insurance proceeds
which the Trustee has collected on account of such destruction or damage, shall
be sufficient to pay the principal of and interest on the Bonds as they mature
and come due or to redeem the same. In the event that the Company shall elect to
cause the Project to be repaired or rebuilt, the Company shall continue to make
the rental payments provided for in this Lease Agreement shall cause an estimate
to be made of the expense of repairing or rebuilding the Project in the same
condition and value as immediately preceding the event causing such loss, by a
capable and reputable architect or engineer, or both, acceptable to the Board
and the Trustee, and the Company shall forthwith pay to the Trustee for the
account of the Construction Fund the amount by which such estimate exceeds the
insurance proceeds collected by the Trustee on account of such damage or
destruction; and the Company shall forthwith proceed with all practicable
dispatch to cause the Project to be repaired or rebuilt in the same condition
and value as immediately preceding the event causing such loss, and the Board
shall cause the expenses thereof to be paid by the Trustee out of the
Construction Fund, as in the Mortgage provided. If the actual cost of repairing
or rebuilding the Project shall exceed the amount available therefor in the
Construction Fund, the Company shall pay any deficiency from its own funds. In
the event that the Company shall elect not to cause the Project to be repaired
or rebuilt, the Company shall forthwith pay to the Trustee a sum of money which,
when added to the insurance proceeds, will be sufficient to pay the principal of
and interest on the Bonds as they mature and come due or to redeem the same; and
upon the payment or retirement of all Bonds and interest thereon and all other
obligations under the Mortgage, the Basic Rent for the Primary Term of the lease
shall xxxxx. Payment to the Trustee of insurance proceeds in excess of the
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amounts used to repair or rebuild the Project in the same condition and value as
immediately preceding the event causing the loss or destruction, or if insurance
proceeds are paid to the Trustee to pay or redeem the Bonds, shall be credited
as follows:
(1) To the abatement of Basic Rents which will thereafter be due and
payable as herein provided and the latest installment thereof shall be first
abated; and when all Bonds and interest thereon shall have been paid in full,
whether at maturity or by call for prior redemption, and all other obligations
under the Mortgage, including the payment of the Trustee's fees, charges and
expenses, shall have been paid and discharged.
(2) The Company shall be entitled to the excess, if any, then remaining
uncredited.
Section 4.2 Condemnation Provisions. In the event the Project and the
Leased Realty or any part of either shall be taken under the exercise of the
power of eminent domain, the award of compensation, except such portion as is
allocable to the Company for damages, shall be paid to the Trustee to be applied
to the payment of principal of and interest on all Bonds then outstanding or to
redeem the same, with any excess to be paid to the Board, unless the Company
shall have notified the Board of its desire to utilize the award for the purpose
of adapting the Project to Company's continued use. In the event Company elects
to cause the Project to be repaired or rebuilt for its continued use, the
Company shall continue to make the rental payments provided for in this Lease
Agreement and shall cause an estimate to be made of the expenses of such work by
a capable and reputable architect or engineer, or both, acceptable to the Board
and the Trustee, and the Company shall, prior to the commencement of
construction, pay to the Trustee for the account of the Construction Fund the
amount, if any, by which such estimate exceeds the condemnation award; and
Company shall
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forthwith proceed with all practicable dispatch to cause the Project to be
repaired or rebuilt as aforesaid, and the Board shall cause the expenses thereof
to be paid by the Trustee out of the Construction Fund. If the cost of repairing
or rebuilding the Project exceeds the amount available therefor in the
Construction Fund, the Company shall pay any deficiency from its own funds. In
the event Company elects to redeem the outstanding Bonds and the award (or
portion thereof after use by the Company as above provided) is insufficient to
pay or redeem all outstanding Bonds, the Company shall either (a) pay to the
Trustee, for the account of the Bond and Interest Fund held by the Trustee under
the Mortgage, a sum which, when added to the proceeds of the condemnation award
which shall be paid to the Trustee, shall be sufficient to pay the principal of
and interest on the Bonds as they mature and come due or to redeem the same, or
(b) continue to use and occupy the Project or any part thereof then remaining
and cause the Board to apply the proceeds of the award of condemnation paid to
the Trustee to the redemption of Bonds, whereupon the basic rental payments will
be reduced to the amount required to pay the principal of and interest on the
remaining outstanding Bonds as such principal and interest become due and
payable.
ARTICLE V
CERTAIN PROVISIONS RELATING TO ASSIGNMENT,
SUBLEASING AND MORTGAGING AND TO THE BONDS
Section 5.1 Provisions Relating to Assignment and Subleasing. The
Company may assign this Lease Agreement, and may sublet the Project or any part
thereof, without the necessity of obtaining the consent of either the Board or
the Trustee. No such assignment or subleasing shall, however, in any way relieve
the Company from primary liability for any of its obligations hereunder, and in
the event of any such assignment or subleasing the Company
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shall continue to remain primarily liable for payment of all rentals, herein
provided to be paid by it and for performance and observance of the other
agreements and covenants on its part herein provided to be performed and
observed by it.
Section 5.2 Mortgaging of Project by Board. The Board may mortgage the
Project to the Trustee as security for the payment of the Bonds, subject to this
Lease Agreement (which shall be superior to the Mortgage), all as provided in
the Mortgage, and may assign its interest in and pledge any monies receivable
under this Lease Agreement to the Trustee as security for payment of the
principal of and the interest on the Bonds. The Board may in the Mortgage
obligate itself to follow the instructions of the Trustee or the holders of the
Bonds or a certain percentage thereof in the election or pursuit of any remedies
herein vested in it. In the event the Board's interest in this Lease Agreement
is so assigned and pledged to the Trustee, the Trustee shall have all rights and
remedies herein accorded the Board and any reference herein to the Board shall
be deemed, with the necessary changes in detail, to include the Trustee, and the
Trustee and the holders of the Bonds shall be deemed to be third party
beneficiaries of the covenants and agreements of the Company herein contained.
Subsequent to the issuance of the Bonds and prior to their payment in full, the
Board and the Company shall have no power to modify, alter, amend or terminate
this Lease Agreement without the prior written consent of the Trustee and then
only as provided in the Mortgage, provided that the Board and the Company may,
without any such consent, make such modifications, alterations and amendments of
this Lease Agreement as are specifically authorized in or contemplated by this
Lease Agreement or the Mortgage. The Board will not amend the Mortgage or any
mortgage supplemental thereto without the prior written consent of the Company.
Neither the Board nor the Company will
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unreasonably withhold any consent herein or in the Mortgage required of either
of them. The Company shall not be deemed to be a party to the Mortgage or the
Bonds issued thereunder and reference in this Lease Agreement to said Mortgage
and Bonds shall not impose any liability or obligation upon the Company other
than its specific obligations and liabilities undertaken in this Lease
Agreement.
Section 5.3 Redemption of Bonds. It is understood and agreed by the
parties hereto that the amount necessary to redeem Bonds shall include, in
addition to the redemption price, all expenses necessary to effect the
redemption and interest on the Bonds to be redeemed to the next ensuing date on
which they can be redeemed, and, if all Bonds are redeemed, all other
obligations under the Mortgage, including the Trustee's fees, charges and
expenses. Any payment made by the Company to be applied to the redemption of
Bonds shall be made at least 45 days prior to the proposed redemption date and
at the time of such payment the Company shall notify the Board, the Trustee and
the original purchasers of the Bonds, in writing, as to the purpose of such
payment, and the Board, upon receiving such notice, shall be obligated and
hereby agrees to take all necessary action to have the payment made by Company
for the purpose of redeeming Bonds applied to the redemption of as many Bonds as
such payment will permit under the Bond redemption provisions of the Bonds and
the Mortgage.
Section 5.4 References to Bonds Ineffective after Bonds Paid. Upon full
payment of the Bonds, all references in this Lease Agreement to the Bonds and
the Trustee shall be ineffective and neither the Trustee nor the holders of any
of the Bonds shall thereafter have any rights hereunder, saving and excepting
those that shall have theretofore vested. For purposes of this Lease Agreement,
the Bonds shall be deemed fully paid:
(a) If there is on deposit in the Bond and Interest Fund
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a total amount sufficient to pay the principal of all the then outstanding Bonds
plus the interest due thereon until and at their respective maturities and
provision for payment of all Trustee's and paying agents' fees, accrued and to
accrue, has been made in a manner satisfactory to the Trustee and such paying
agents, or
(b) If there have been irrevocably deposited with the Trustee (i)
monies sufficient to pay, redeem and retire all the then outstanding Bonds
(including, without limitation, principal, premium, interest to maturity or
earliest practicable redemption date, as the case may be, expenses of redemption
and Trustee's and paying agents' fees), and (ii) evidence satisfactory to the
Trustee that all redemption notices required by the Mortgage have been duly
given by the Board or irrevocable powers authorizing the Trustee to give such
redemption notices.
In the event the Bonds are fully paid prior to the last maturity
thereof, or an amount sufficient to pay, redeem and retire all the then
outstanding Bonds including principal, premium, interest to maturity or earliest
practicable redemption date (as the case may be), expenses of redemption and
Trustee's and paying agents' fees have been irrevocably deposited with the
Trustee in the Bond and Interest Fund for such purpose, the Company shall be
entitled to use and occupancy of the Project from the date of such payment until
the expiration of the Primary Term without the payment of any further Basic Rent
but otherwise on all the same terms and conditions hereof. If, after full
payment of the Bonds, there is any surplus remaining in the Bond and Interest
Fund, the Board will promptly pay such surplus to the Company.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.1 General Covenants. The Company will not do or permit
anything to be done on or about the Project that will affect,
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impair or contravene any policies of insurance that may be carried on the
Project or any part thereof against loss or damage by fire, casualty or
otherwise. The Company will, in the use of the Leased Realty and the Plant, the
public ways abutting the same and the Leased Equipment, comply with all lawful
requirements of all governmental bodies.
Section 6.2 Inspection of Project. The Company will permit the Board,
the Trustee, any holder of not less than $50,000 principal amount of Bonds and
their duly authorized agents (subject to the restrictions and requirements
imposed by contracts with the United States Government or agencies thereof, or
by subcontracts governed by such contracts, being performed by the Company, or
its subtenant or subtenants, in any part of the Leased Realty or the Project or
the Adjacent Building), at all reasonable times to enter upon, examine, inspect
and photograph the Leased Realty, the Leased Equipment (including the Leased
Equipment situated in the Adjacent Building), the Plant and the Project; and in
the event of default as hereinafter provided, the Company will permit any
nationally recognized firm of certified public accountants designated by the
Trustee, to have access to, inspect, examine and make copies of the books and
records, accounts and data of the Company.
Section 6.3 Special Covenants. In order that the Board may be
reasonably assured of the full payment of rent over the full Primary Term of
the Lease,
(a) The Company shall install and maintain proper books of record and
account, in which full and correct entries shall be made in accordance with
standard accounting practice, of all business and affairs of the Company, and
shall furnish to the Board, to the Trustee and to the original purchasers of the
Bonds quarterly and annual balance sheets and income and expense statements
showing, respectively, in reasonable detail, the financial condition of the
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Company at the close of each such period and its financial operations during
each such period. The annual balance sheet and income and expense statement
shall be certified in accordance with the standard form of opinion adopted by
the American Institute of Accountants, by a certified public accountant who is a
member of the said American Institute of Accountants and against whom the
Trustee makes no reasonable objection. The profit and loss statements shall
accurately reflect gross income and the net earnings of the Company.
(b) The Company will at all times keep an office or agency in the City
of Decatur, State of Alabama, where notices, requests and demands in respect of
this Lease Agreement may be served, and it will in writing notify the Board and
the Trustee of the location of each such office or agency. In default of any
such office or agency or such notification thereof, such notices, requests and
demands may be served at the principal office of the Trustee.
(c) The Company will duly pay and discharge all taxes, assessments and
other governmental charges and liens lawfully imposed upon the Leased Realty,
the Leased Equipment and the Plant and upon the properties of the Company,
provided, however, the Company shall not be required to pay any taxes,
assessments or other governmental charges so long as in good faith it shall
contest the validity thereof by appropriate legal proceedings.
(d) The Company will maintain and preserve its Certificate of
Incorporation or Charter and its corporate existence and organization, and its
authority to do business in the State of Alabama, and will not voluntarily
dissolve without first discharging its obligations under this Lease Agreement,
and will comply with all valid laws, ordinances, regulations and requirements
applicable to it or to its property and the Project.
(e) The Company will not merge or consolidate with any
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other corporation and will not transfer or convey all of its property, assets
and licenses, or any substantial portion thereof, except (i) upon terms and
conditions that will fully protect the interest of the Board and the holders of
the Bonds, and (ii) upon the execution and delivery to the Board and to the
Trustee of an agreement supplemental hereto which will obligate the successor
corporation or transferee to assume and perform and abide by all the terms and
conditions of this Lease Agreement. In case the Company or any successor
corporation or transferee shall be consolidated or merged with or into any other
corporation or shall make a conveyance, as permitted under the provisions of
this subsection, the corporation formed by or resulting from such consolidation
or merger, or the transferee to which such conveyance shall have been made as
aforesaid, upon complying with the provisions of this subsection, shall succeed
to and be substituted for the Company with the same force and effect as if it
had been named in and had executed this Lease Agreement as a party thereto, and
shall have and possess and may exercise, subject to the terms and conditions of
this Lease Agreement and of the Mortgage, each and every power, authority and
right herein reserved to and conferred upon the Company. The term "Company"
includes and means, unless the context otherwise requires, not only the Fruehauf
Corporation but also any such successor corporation or transferee. The
supplemental Lease Agreement provided for in this subsection shall never be
construed as a novation, alteration or amendment of or to this Lease Agreement,
but as part of this Lease Agreement and pursuant to its terms, and nothing
herein contained shall be construed as authorizing or permitting the execution
of any agreement which shall impair, or have the effect of impairing, the
obligations intended to be imposed upon the Company by this Lease Agreement, and
no such consolidation, merger or conveyance, and no such Lease Agreement or
assumption of obligations,
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shall release the Company from its liability under this Lease Agreement or from
the covenants in this Lease Agreement.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default Defined. The following shall be "events
of default" under this Lease Agreement, and the terms "events of default" or
"default" shall mean, whenever they are used in this Lease Agreement, any one or
more of the following events:
(a) Failure to pay any installment of Basic Rent that has become due
and payable by the terms of this Lease Agreement;
(b) Failure of the Company to perform any of its obligations under this
Lease Agreement or to duly observe any covenant, condition or agreement on its
part required to be performed, provided such failure shall have continued for a
period of thirty days after written notice by the Board or the Trustee
specifying such non-performance or breach and requiring the same to be remedied,
unless the Trustee shall have agreed in writing to an extension of such time
prior to its expiration;
(c) The filing of a voluntary petition in bankruptcy or the commission
of any act of bankruptcy by the Company, or the adjudication of the Company as a
bankrupt, or the making by the Company of an assignment for the benefit of
creditors, or the appointment by final order, judgment or decree of a court of
competent jurisdiction of a receiver for the whole or any substantial part of
the properties of the Company, provided such receiver shall not have been
removed or discharged within sixty days of the date of his qualification, unless
the Trustee shall have agreed in writing to an extension of the time within
which to remove or discharge said receiver.
Section 7.2 Remedies on Default. Whenever any such event or default
shall have happened and be continuing, the Board or the
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Trustee may take any of the following remedial steps;
(a) The Board or the Trustee may, at their option, declare
all installments of Basic Rent payable under this Lease Agreement for
the remainder of the Primary Term immediately due and payable;
(b) The Board or the Trustee may reenter and take
possession of the Leased Realty, exclude the Company from possession
thereof, enter into the Adjacent Building, remove the Leased Equipment
therefrom and rent the Project or any part thereof, for the account of
the Company;
(c) The Board or the Trustee may, at their option,
terminate the Lease Agreement, exclude the Company from possession of
the Leased Realty and the Leased Equipment, remove any item of Leased
Equipment from the Adjacent Building and, if the Board or Trustee elect
so to do, lease the Project for the account of the Board, holding the
Company liable for all rent due up to the date such lease is made for
the account of the Board;
(d) The Board or the Trustee may take whatever action at
law or in equity may appear necessary or desirable to collect the rent
then due, whether by declaration or otherwise, or to enforce any
obligation or covenant or agreement of the Company under this Lease
Agreement or by law.
Section 7.3 No Remedy Exclusive. No remedy herein conferred
upon or reserved to the Board or the Trustee is intended to be
exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other
remedy given under this Lease Agreement or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver thereof but any such right
or power may be exercised from time to time and as often as may be
deemed expedient. In order to
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entitle the Board or the Trustee to exercise any remedy reserved to it
in this Article VII, it shall not be necessary to give any notice;
other than such notice as is herein expressly required.
Section 7.4 Agreement to Pay Attorneys' Fees. In the event
the Trustee (in its own name or in the name and behalf of the Board)
files court proceedings to collect Basic Rent due hereunder or to
enforce any other obligation, covenant, agreement, term or condition of
this Lease Agreement, the Company will pay to the Trustee reasonable
attorneys' fees and other expenses so incurred by the Trustee in
connection with such court proceedings.
ARTICLE VIII
OPTIONS
Section 8.1 Option to Renew. If the Company pays the rental
herein reserved to the Board and is not otherwise in default hereunder,
it shall have the right and option, herein granted by the Board, to
renew the Primary Term for a period of twenty (20) additional years
from midnight of April 30, 1984 (that is, for an additional term
expiring on midnight of April 30, 2004) by giving written notice of
such renewal to the Board at least sixty (60) days prior to the
expiration of the Primary Term. The cash rental payable by the Company
during any such renewal term shall be the sum of $10,000 per year,
payable annually in advance, but otherwise all the terms and conditions
herein contained shall apply during such renewal term.
Section 8.2 Options to Terminate. The Company shall have,
if it is not in default hereunder, the following options to cancel or
terminate the term of this Lease Agreement:
(a) At any time prior to full payment of the Bonds, the
Company may terminate this Lease Agreement by paying to the Board and
the Trustee, as additional or prepaid rental, in bankable funds an
amount which, when added to the amount on deposit in the Bond
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and Interest Fund, will be sufficient to pay, retire and redeem all the
outstanding Bonds in accordance with the provisions of the Mortgage
(including, without limiting the generality of the foregoing,
principal, interest to maturity or earliest practicable redemption
date, as the case may be, premium, expenses of redemption and Trustee's
and paying agents' fees);
(b) After full payment of the Bonds, the Company may
terminate this Lease Agreement as of any then succeeding anniversary
date by giving the Board notice in writing not less than one hundred
eighty (180) days prior to the anniversary date on which such
termination is to become effective.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Covenant of Quiet Enjoyment, Surrender of
Project. So long as the Company performs and observes all the covenants
and agreements on its part herein contained, it shall peaceably and
quietly have, hold and enjoy the Project during the Primary Term,
subject to all the terms and provisions hereof. At the end of the term
hereof, or upon any prior termination of this Lease Agreement, the
Company will permit the Board to remove any item of Leased Equipment
then situated in the Adjacent Building from said Building and will
surrender possession of the Project peaceably and promptly to the Board
in good order and repair, loss by fire or other casualty and ordinary
wear and tear only excepted.
Section 9.2 Representations. The Company represents that it
has corporate power to enter into this Lease Agreement and to perform
all acts herein required to be performed by it and that its execution
and delivery hereof have been duly authorized by all necessary
corporate action. The Board represents that it has corporate power to
enter into this Lease Agreement and that its execution and delivery
hereof have been duly authorized by all necessary
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corporate action.
Section 9.3 Retention of Title to Project by Board, Grant
of Utility Easements and "Tie-In" of Utility Facilities. The Board will
not itself sell, convey or otherwise dispose of all or any Part of the
Project during the term of this Lease Agreement without the prior
written consent of the Company. Neither will the Board dissolve or do
anything that will result in the termination of its corporate
existence. The Board will, however, grant such utility and other
similar easements over, across or under the Leased Realty as shall be
requested by the Company and as are necessary or convenient for the
efficient operation of the Project. The Board will also, upon request
of the Company, (a) grant such utility And other similar easements
over, across or under the Leased Realty as shall be necessary or
convenient for the furnishing of utility and other similar services to
real property adjacent to or near the Leased Realty and owned or leased
by the Company, provided that such easements shall not adversely affect
the operations of the facilities forming a part of the Project, and (b)
in addition to the rights granted the Company in subsection (d) of
Section 3.1 hereof, permit any utility and other similar facilities
serving the Project to be "tied-into" utility and other similar
facilities serving real property adjacent to or near the Leased Realty
and owned or leased by the Company, provided that such "tie-in" shall
not adversely affect the operation of the facilities forming a part of
the Project and, shall be so affected as to be subject to prompt
disconnection at minimum expense.
Section 9.4 This Lease a Net Lease. The Company recognizes,
understands and acknowledges that it is the intention hereof that this
Lease be a net lease and that all the Basic Rent be available for
payment of debt service on the Bonds. This Lease Agreement shall be
construed to effectuate such intent.
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Section 9.5 Installation of New Equipment by Board. In the
event that at any time the Company desires to install in the Project
additional machinery and equipment the Board will, on request of the
Company and upon being furnished by the Company with the necessary
funds, purchase and install in the Project such additional machinery
and equipment, which shall then become and constitute a part of the
Project, subject to the lease hereof.
Section 9.6 Notices. All notices hereunder shall be
sufficient if sent by United States registered or certified mail,
postage prepaid, addressed, if to the Board, at Decatur, Alabama; if to
the Company, Detroit 32, Michigan (Attention, President), with a
duplicate copy to the address of the Project; and if to the Trustee,
Decatur, Alabama (Attention, Trust Officer). The Board, the Company and
the Trustee may, by like notice, designate any further or different
addresses to which subsequent notices shall be sent.
Section 9.7 Prior Agreements Cancelled. This Lease
Agreement shall completely and fully supersede all other prior
agreements, both written and oral, between the Board and the Company
relating to the construction of the Plant, the purchase of the Leased
Equipment, the leasing of the Project and any options to renew. No
party to any such prior agreement shall hereafter have any rights
thereunder but shall look solely to this Lease Agreement for definition
and determination of all of its rights, liabilities and
responsibilities relating to the construction of the Plant, the
purchase of the Leased Equipment, the leasing of the Project and any
options to renew.
Section 9.8 Board's Liabilities Limited. It is understood
and agreed by and between the parties hereto that this Lease Agreement
is entered into under and pursuant to the provisions of the aforesaid
Act No. 648, adopted at the 1949 Regular Session of the Legislature of
the State of Alabama and that no provision of this Lease Agreement
shall be construed so as to give rise to a pecuniary
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liability of the Board or a charge against its general credit. All obligations
of the Board arising in connection with this Lease Agreement are limited to the
proper application of the proceeds of the sale of the Bonds and revenues and
receipts of the Project.
Section 9.9 Binding Effect. This Lease Agreement shall inure to the
benefit of, and shall be binding upon, the Board, the Company and their
respective successors and assigns.
Section 9.10 Severability. In the event any provision of this Lease
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provisions hereof.
Section 9.11 Article and Section Captions. The article and section
headings and captions contained herein are included for convenience only and
shall not be considered a part hereof or affect in any manner the construction
or interpretation hereof.
IN WITNESS WHEREOF, the Board and the Company have caused this Lease
Agreement to be executed in their respective corporate names, have caused their
respective corporate seals to be hereunto affixed, and have caused this Lease
Agreement to be attested, all by their duly authorized officers, and have
caused this Lease Agreement to be dated as of May 1, 1964.
THE INDUSTRIAL DEVELOPMENT BOARD
[SEAL] OF THE CITY OF DECATUR
By /s/ X. X. XXXXX
----------------------------------
Chairman of its Board of Directors
Attest:
/s/ ILLEGIBLE
-------------------------------
Its Secretary
FRUEHAUF CORPORATION
By /s/ W. E. GRACE
----------------------------------
Its President
[SEAL]
Attest:
/s/ ILLEGIBLE
-------------------------------
Secretary
37
STATE OF ALABAMA )
) ss.
COUNTY OF XXXXXX )
I, the undersigned Notary Public in and for said County in said
State, hereby certify that X. X. Xxxxx whose name as Chairman of THE INDUSTRIAL
DEVELOPMENT BOARD OF THE CITY OF DECATUR, a public corporation and
instrumentality under the laws of Alabama, is signed to the foregoing
instrument and who is known to me, acknowledged before me on this day that,
being informed of the contents of the within instrument, he as such officer and
with full authority, executed the same voluntarily for and as the act of said
public corporation and instrumentality.
Given under my hand and official seal of office this 11th day of
June, 1964.
/s/ XXXX X. XXXXXXX
----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires: July 6, 1966.
STATE OF MICHIGAN
ss.
COUNTY OF XXXXX
I, the undersigned Notary Public in and for Macomb County in said
State, hereby certify that W. E. Grace, whose name as President of FREUHAUF
CORPORATION, organized under the laws of the State of Michigan, is signed to the
foregoing instrument and who is known to me, acknowledged before me on this day
that, being informed of the contents of the within instrument, he as such
officer and with full authority, executed the same voluntarily for and as the
act of said company.
Given under my hand and official seal of office this 10th day of
June, 1964.
/s/ XXXXX X. XXXXXXXXX
----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires January 28, 1968.
38
Exhibit A to this lease agreement, the Mortgage and Indenture of
Trust dated as of May 1, 1964 is recorded in the office of the Judge
of Probate of Xxxxxx County in the Mortgage Records, Volume No. 4,
pp. _____.
State of Alabama, Xxxxxx County
I hereby certify that this instrument
was filed in this office for record JUN 15
1964 at 1:15 o'clock PM, and recorded in
Book 727 of DEEDS, Page 797.
/s/ ILLEGIBLE
Judge of Probate
39
STATE OF ALABAMA )
)
COUNTY OF XXXXXX )
THIS AGREEMENT entered into by and between The Industrial Development
Board of the City of Decatur, a public corporation and instrumentality under
the laws of the State of Alabama (the "Board") and Fruehauf Corporation, a
corporation organized and existing under the laws of the State of Michigan and
authorized to do business in the State of Alabama (the "Company"), on and as of
April 30, 1984,
WITNESSETH THAT:
RECITALS
As of May 1, 1964, the Board and the Company entered into a lease
agreement which is recorded in the Office of the Judge of Probate of Xxxxxx
County, Alabama, in Book 727, at Pages 797, et seq., to which reference is here
made for the description of the property leased thereby. On June 16, 1964, the
Board sold and conveyed to the Company an option to purchase the premises
described and referred to in said lease of May 1, 1964, at and for the sum of
One Thousand and no/100 Dollars ($1,000.00), at such time as no further rent
was payable for the original term of said lease. Said lease contained an
option to renew the primary term thereof for a period of twenty additional years
from midnight of April 30, 1984, at a cash rental payable by the Company during
such renewal term in the sum of Ten Thousand and no/100 Dollars ($10,000.00) per
year, payable annually in advance, but otherwise under all of the terms and
conditions therein contained. The Company has notified the Board that it
desires to renew the lease of May 1, 1964, as to the property described therein
for an additional period of twenty years from May 1, 1984, to April 30, 2004, at
and for a cash rental during said renewal term of Ten Thousand and no/100
Dollars ($10,000.00) per year, payable annually in advance, but otherwise upon
all the terms and conditions contained in said May 1, 1964 which terms
and conditions shall apply during such renewal term. Also, the Company has
notified the Board that it desires purchase an option from the Board to
purchase said
40
premises upon which said renewal lease is to be made at any time during said
renewal period at and for the sum of One Thousand and no/100 Dollars
($1,000.00) payable in cash, with the provision that upon exercise of such
option to purchase that no further or additional rents shall be payable for any
unexpired portion of such renewal term of said lease.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements and undertakings of the parties hereinafter contained and of the
sum of One and no/100 Dollars ($1.00) cash to each of the parties in hand paid
by the other, the receipt of which is hereby acknowledged, it is agreed, by and
between the parties as follows:
1. The primary term of the above identified lease of May 1, 1964, as to
the property described therein, is hereby renewed and extended for a period of
twenty additional years from midnight of April 30, 1984 to midnight of April 30,
2004, at and for cash rental payable by the Company during such renewal term in
the amount of Ten Thousand and no/100 Dollars ($10,000.00) per year, payable
annually in advance, but otherwise under all of the terms and conditions
contained in said lease of May 1, 1964, which shall apply during such renewal
term. The rental in the amount of Ten Thousand and no/100 Dollars ($10,000.00)
for the lease year beginning May 1, 1984, and ending April 30, 1985, in the sum
of Ten Thousand and no/100 Dollars ($10,000.00) is paid in cash by the Company
to the Board upon the execution and delivery of this agreement, the receipt of
which is hereby acknowledged by the Board.
2. In consideration of the sum of One Hundred and no/100 Dollars
($100.00) cash to the Board in hand paid by the Company, the receipt of which is
hereby acknowledged, the Board hereby agrees that the Company, not being in
default under the aforementioned lease, shall have the option at any time, on
written notice to the Board of its election to exercise such option, to purchase
the premises described and referred to in said lease of May 1, 1964, together
with all improvements thereon, including the buildings,
41
machinery and equipment and all other items of real or personal property
referred to collectively in said lease as "the project" for the sum of One
Thousand and no/100 Dollars ($1,000.00) in cash provided that such option shall
become null and void and of no effect if not exercised by the Company by
written notice served on the Board by delivery to the President or Secretary of
the Board in person or by registered or certified mail on or before 12:00
o'clock noon on April 30, 2004. In the event of the exercise of such option,
the property shall be conveyed to the Company, or its nominee, by proper deed
of conveyance, without special covenants of warranty, and if such option is
exercised prior to the expiration of the renewal term of said lease, no further
rental shall be payable for the unexpired portion of the said additional or
renewal term.
IN WITNESS WHEREOF, the Board and the Company have caused this agreement
to be executed in their respective corporate names and have caused their
respective corporate seals to be hereunto affixed and have caused this agreement
to be attested by their duly authorized officers and have caused this agreement
to be dated as of April 30, 1984.
THE INDUSTRIAL DEVELOPMENT BOARD
[SEAL] OF THE CITY OF DECATUR
BY: /s/ X. X. XXXXXXX, XX.
-----------------------------------
Chairman of It's Board of Directors
ATTEST:
/s/ XXXXX X. XXXXX
------------------------------
Its Secretary
42
FRUEHAUF CORPORATION
By:/s/ Illegible
------------------------------
Its Vice President
[SEAL]
ATTEST: State of Alabama
Xxxxxx County
/s/ XXXXX X. XXXXXX I hereby certify that no Mortgage Tax has
----------------------- been collected on this instrument.
Its Ass't Secretary
/s/ XXXXX XXX
Judge of Probate
"NO TAX COLLECTED"
STATE OF ALABAMA )
)
COUNTY OF XXXXXX )
I, the undersigned authority, in and for said county in said state,
hereby certify that X. X. Xxxxxxx, Xx., whose name as Chairman of the Board of
Directors of The Industrial Development Board of the City of Decatur, a public
corporation and instrumentality under the laws of Alabama, is signed to the
foregoing instrument and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said public corporation and instrumentality.
GIVEN under my hand and official seal this 16th day of February, 1984.
/s/ XXXX X. XXXXXXX
------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF MICHIGAN )
)
COUNTY OF XXXXX )
I, the undersigned authority, in and for said county in said state,
hereby certify that X. X. Xxxxxx, whose name as Vice-President of Fruehauf
Corporation, a corporation organized under the laws of the State of Michigan,
is signed to the foregoing instrument, and who is known to me, acknowledged
before me on this day that, being informed of the contents of said instrument,
he, as such officer and with full authority, executed the same voluntarily for
and as the act of said corporation.
GIVEN under my hand and official seal this 9th day of February, 1984.
/s/ XXXX X. XXXXXXX
------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
My Commission Expires June 29, 1987
