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EXHIBIT 10.2
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT, made and entered into as of this 30th day of
September, 1993, by and between THE UNIROYAL XXXXXXXX TIRE COMPANY, a Delaware
corporation, with offices at Xxx Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx
00000, hereinafter referred to as "SUBLESSOR", and XXX XXXXXX COMPANY, INC., a
Delaware corporation with offices at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx
00000, hereinafter referred to as "SUBTENANT."
WITNESSETH:
WHEREAS, SUBLESSOR is now leasing the premises hereinafter described, from
The Industrial Development Board of the City of Birmingham, Alabama, a public
corporation of the State of Alabama, hereinafter referred to as "BASE
LANDLORD", under a LEASE AGREEMENT as amended, dated January 1, 1972, a true
and correct copy of which (omitting certain exhibits) is attached hereto as
EXHIBIT B, and incorporated herein by reference as fully as if its terms and
provisions were herewith set forth in full, said LEASE AGREEMENT being
hereinafter referred to as the "LEASE AGREEMENT"; and
WHEREAS, SUBTENANT is desirous of subleasing all of said premises
(approximately 340,000 square feet) from SUBLESSOR.
NOW, THEREFORE, IT IS MUTUALLY AGREED by and between the parties hereto
that SUBLESSOR does hereby sublet and sublease to SUBTENANT, and SUBTENANT does
hereby take and hire from SUBLESSOR the premises described in EXHIBIT A
attached hereto and made a part of this Agreement, more commonly known as
Outlet No. 7002, 3400 Xxxxxx Valley Parkway, in the City of Birmingham, County
of Jefferson and State of Alabama, for the following terms:
Phase 1 - for a term beginning October 1, 1993 and ending September 30,
1997, or on such earlier date as may be determined in the manner
hereinafter provided at a rental specified hereinbelow:
Phase 2 - for a term beginning December 1, 1993 and ending September 30,
1997, or on such earlier date as may be determined in the manner
hereinafter provided at a rental specified hereinbelow; and
Phase 3 - for a term beginning January 1, 1994 and ending September 30,
1997, or on such earlier date as may be determined in the manner
hereinafter provided at a rental specified hereinbelow for Phase 3.
The rentals and square footage for Xxxxx 0, Xxxxx 2, and Phase 3 are more
fully described in EXHIBIT C attached hereto and made a part of this Xxxxxxxxx.
Xxxxx 0, Xxxxx 2, and Phase 3 are hereinafter collectively referred to as the
"Premises".
If SUBLESSOR shall be unable for any reason whatsoever to deliver
possession of the
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Premises, or any portion thereof, on the commencement date of the term
applicable thereto, then and in that event this SUBLEASE shall be null and void
and of no effect and the parties hereto shall thereupon be under no further
obligation or liability to each other by reason thereof.
IT IS MUTUALLY AGREED by and between the parties hereto that said
subletting is and shall be on the following mutual covenants, agreements and
conditions:
1. RENTAL:
The SUBTENANT shall pay to the SUBLESSOR as fixed annual rental for the
Premises during the applicable term thereof the rents set forth on EXHIBIT
C (the "Rents"). The Rents shall be payable in equal monthly payments in
advance of the first day of each and every month during the term hereof
with the first rental payment being due on October 1, 1993. Unless
otherwise notified in writing by SUBLESSOR, rental checks are to be mailed
to: THE UNIROYAL XXXXXXXX TIRE COMPANY, Xxxx Xxxxxx Xxx 000000, Xxxxxxx,
XX 00000-0000.
Any rent not received by SUBLESSOR by the tenth day of the month in which
it is due shall be considered delinquent and shall bear interest at the
annual prime rate (as set forth in the listing of "Money Rates" appearing
in The Wall Street Journal on the due date) plus 2% or at the maximum
legal rate, whichever is less.
2. SECURITY DEPOSIT:
No security deposit is required.
3. REAL ESTATE TAXES:
SUBTENANT shall pay or cause to be paid its pro rated share of all real
estate taxes, assessments, and other governmental charges levied or
assessed on the Premises during the term of this SUBLEASE as may be
required under the LEASE AGREEMENT when due, before any interest or other
penalty accrues.
4. SUBTENANT expressly assumes and shall be bound by all of the terms,
conditions, covenants and agreements of this SUBLEASE and the LEASE
AGREEMENT as incorporated herein by reference, and will perform fully all
duties, obligations and responsibilities assumed by or imposed upon by the
SUBLESSOR herein as TENANT under the LEASE AGREEMENT except that in the
event of a variation between the fixed annual rent specified in Paragraph
1 hereof and the fixed annual rent specified in the LEASE AGREEMENT,
SUBTENANT will be obligated to pay the fixed annual rent specified in
Paragraph 1 of this SUBLEASE and not the fixed annual rent specified in
the LEASE AGREEMENT during the terms hereof.
5. USE, ASSIGNMENT AND SUBLETTING:
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SUBTENANT may use and occupy the Premises for warehouse purposes only and
not for manufacturing or any other use. SUBTENANT may not assign, sublet
or underlet all or any portion of the Premises without prior written
consent of SUBLESSOR, which consent will not be unreasonably withheld,
but SUBTENANT shall not be released from any of SUBTENANT'S obligations
hereunder by reason of any such assignment or subletting. SUBLESSOR shall
have the right, in addition to its rights to grant or withhold consent to
any assignment or subletting, to terminate this SUBLEASE within thirty
(30) days after receipt of a request from SUBTENANT for consent to any
assignment or subletting by SUBTENANT herein. SUBLESSOR shall also have
the right to assign this SUBLEASE to any of its affiliates.
6. INSURANCE:
SUBTENANT shall keep the Premises insured consistent with the provisions
of the LEASE AGREEMENT. SUBLESSOR, as TENANT under the BASE LEASE, shall
not be liable to BASE LANDLORD for the cost of such insurance.
Notwithstanding the foregoing, SUBTENANT will reimburse SUBLESSOR for the
cost of any insurance paid by SUBLESSOR, as TENANT under the BASE LEASE,
as a result of any default on the part of the SUBTENANT hereunder. In
this event, SUBTENANT will reimburse SUBLESSOR, as additional rent, for
the cost of such coverage paid by SUBLESSOR or reimbursed to others, as
follows:
On the same day of each month during the term of this SUBLEASE that the
fixed rent is payable pursuant to Paragraph 1 hereof, SUBTENANT shall pay
to SUBLESSOR a sum equal to the cost of such insurance coverage.
All premiums for all of the foregoing shall be paid promptly by SUBTENANT
when due. SUBTENANT will furnish to SUBLESSOR certificates of the
insurance required to be taken out hereunder and under the LEASE AGREEMENT
which shall provide that the policies shall not be modified or cancelled
except upon thirty (30) days' written notice to THE UNIROYAL XXXXXXXX TIRE
COMPANY. The certificates shall be addressed to the attention of the Risk
Management Department. In the event of default in payment of the premiums
upon such policies, the SUBLESSOR may pay the premiums and charge the cost
thereof to SUBTENANT as hereinabove provided.
7. INDEMNIFICATION:
During the term of this SUBLEASE, SUBLESSOR and BASE LESSOR shall not be
liable to SUBTENANT or SUBTENANT's employees, patrons or visitors for any
damage to person or property caused by or resulting from the use of
occupancy of the Premises or the condition thereof whether or not
resulting in whole or in part from any action of SUBLESSOR, its agents,
servants or employees, and SUBTENANT agrees to hold SUBLESSOR harmless
from all claims for any such damage. During the term of
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this SUBLEASE, SUBTENANT shall indemnify BASE LANDLORD and SUBLESSOR
harmless against, any loss or damage to property or any injury to or death
of any person occurring on or about or resulting from any defect in the
Premises.
SUBTENANT agrees that it shall be solely responsible to any party,
including but not limited to SUBLESSOR, BASE LANDLORD, claimants and
governmental authorities, for any and all claims, obligations and
liabilities caused by or arising out of or in connection with environmental
problems that were caused by or related to SUBTENANT's operations during
the term of this SUBLEASE, and further that SUBTENANT will cure and xxxxx
all such environmental problems at SUBTENANT's cost and on a timely basis.
SUBTENANT shall indemnify, defend and hold harmless SUBLESSOR and BASE
LANDLORD from any such claims, obligations and liabilities.
8. DEFAULT:
If SUBTENANT fails to perform any of its obligations under this SUBLEASE,
the SUBLESSOR shall have all rights and remedies provided by law and by the
provisions of the LEASE AGREEMENT and this SUBLEASE, cumulatively and in
the alternative. In addition to, and not in limitation or restriction
upon any rights and remedies granted to SUBLESSOR by law or by any of the
other provisions of this SUBLEASE, this SUBLEASE may be forfeited at
SUBLESSOR's discretion if any default by SUBTENANT continues for a period
of thirty (30) days after SUBLESSOR shall notify SUBTENANT of such default.
In such event SUBLESSOR may immediately, or at any time thereafter,
re-enter the Premises and remove all persons and all or any property
therefrom, by any suitable action or proceeding at law, or by force or
otherwise, without being liable to indictment, prosecution or damages
therefor, and repossess and enjoy the Premises together with all additions,
alterations and improvements and such re-entry or repossession shall not
relieve SUBTENANT from liability hereunder. In any such case SUBLESSOR may
either relet the Premises or any part or parts thereof for its own account,
or as the agent of the SUBTENANT, and receive the rents therefor, applying
the same first to the payment of such expenses as SUBLESSOR may have
incurred, and then to the fulfillment of the covenants of SUBTENANT herein,
and the balance, if any, at the expiration of the term first above provided
for, shall be paid to SUBTENANT. SUBLESSOR may rent the Premises for a term
extending beyond the term hereby granted without releasing SUBTENANT from
any liability on this SUBLEASE. In the event that the term of this SUBLEASE
shall be forfeited as above provided, or terminated by legal action, or
otherwise, and if SUBLESSOR shall not relet the Premises for SUBLESSOR's own
account, then whether or not the Premises be relet SUBTENANT shall remain
liable for, and SUBTENANT hereby agrees to pay to the SUBLESSOR, until the
time when this SUBLEASE should have expired but for such termination or
forfeiture, the equivalent of the amount of all of the rent and the
"additional rent" reserved herein, less the avails of reletting, if any,
and the same shall be due and payable by SUBTENANT to
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SUBLESSOR on the several rent days above specified, that is, upon each
of such rent days SUBTENANT shall pay to SUBLESSOR the amount of deficiency
then existing. SUBTENANT hereby expressly waives any and all right of
redemption in case the SUBTENANT shall be dispossessed by judgment or writ
or rule of any court or judge, and SUBTENANT waives and will waive all
right to trial by jury in any legal action hereafter instituted by
SUBLESSOR against SUBTENANT in respect to the Premises of this SUBLEASE.
The filing of a petition in bankruptcy or under any Federal law for the
relief of debtors by or against SUBTENANT or any assignment by SUBTENANT
for the benefit of creditors shall constitute a default by SUBTENANT under
this SUBLEASE.
SUBLESSOR shall have the right at any time to apply any sum received
from SUBTENANT against any obligation then due from SUBTENANT to SUBLESSOR,
whether or not such obligation arises under the provisions of this SUBLEASE
or otherwise, and SUBLESSOR shall have the right to declare this SUBLEASE
in default if SUBTENANT fails to meet any of its obligations to SUBLESSOR,
however arising, promptly when the same becomes due.
SUBLESSOR herein shall not be liable to SUBTENANT for the performance
of obligations imposed on the BASE LANDLORD under the LEASE AGREEMENT, but
SUBTENANT herein shall have the right to enforce, at its own expense, but
in the name of the SUBLESSOR any and all obligations imposed on the BASE
LANDLORD under the LEASE AGREEMENT.
9. OPTION TO RENEW, EXTEND, OR TERMINATE:
SUBTENANT shall not have the right under this SUBLEASE to exercise, or
call upon SUBLESSOR to exercise, any right or option which SUBLESSOR may
have to renew, extend, or terminate the term of the LEASE AGREEMENT.
10. OPTION TO TERMINATE EARLY:
Either party to this SUBLEASE shall have the option to terminate this
SUBLEASE prior to its stated expiration date by giving written notice to
the other party at least ninety (90) days prior to the effective date of
such termination, provided that the effective date of such early
termination may not occur prior to July 31, 1995.
Notwithstanding the foregoing, SUBLESSOR'S right to terminate this
SUBLEASE is subject to the right of first refusal hereby granted to
SUBTENANT to continue to sublease the Premises or purchase the SUBLESSOR'S
leasehold interest therein, as the case may be, pursuant to the same terms
and conditions as are stated in a signed letter of intent to SUBLESSOR from
a prospective subtenant or prospective purchaser, as the case may be. In
order to exercise the right of first refusal granted herein, SUBTENANT
shall deliver to SUBLESSOR a written notice specifying its unambiguous and
irrevocable
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election to exercise such right. Such notice shall be delivered to
SUBLESSOR not more than fourteen days following its receipt from SUBLESSOR
of the letter of intent.
11. NOTICES:
Notices of every kind and nature to be given pursuant to this SUBLEASE
shall be addressed as follows:
If to SUBTENANT:
XXX XXXXXX COMPANY
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, XX 00000
Attn: Mr. Xxxxx Xxxx
If to SUBLESSOR:
THE UNIROYAL XXXXXXXX TIRE COMPANY
000 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxx 00000-0000
ATTN: Director of Real Estate
Any notices shall be deemed duly given if and when enclosed in a properly
sealed envelope and deposited postage prepaid, registered or certified
mail, return receipt requested, addressed as aforesaid in any United
States Post Office or any depositor thereof.
12. SUBORDINATION:
This SUBLEASE is subject and subordinate to the LEASE AGREEMENT and to any
mortgage which may now or hereafter be placed on the Premises to the same
extent that the rights of THE UNIROYAL XXXXXXXX TIRE COMPANY under the LEASE
AGREEMENT are subject to such mortgages. This SUBLEASE shall also be
subject to termination of the term of the LEASE AGREEMENT by the BASE
LANDLORD therein or any successor, or by mutual agreement between the
SUBLESSOR herein and said BASE LANDLORD in the LEASE AGREEMENT following
total or partial condemnation or damage or destruction of the Premises by
fire or other casualty or following termination of the term of the LEASE
AGREEMENT for any reason whatever and SUBLESSOR herein shall have no
obligation to SUBTENANT herein because of any termination for any
reason whatever.
13. SEVERABILITY:
Should any part, term or provision of this contract be held unenforceable
by a court of
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competent jurisdiction, it is agreed that the remaining portions, terms or
provisions are operative and survive unaffected.
14. ENTIRE AGREEMENT:
This SUBLEASE consisting of 45 pages, together with EXHIBIT A
consisting of 1 page, EXHIBIT B consisting of 1 page, and EXHIBIT C
consisting of 1 page, in the aggregate constitutes the entire SUBLEASE of
the parties upon the subject matter hereof, and this SUBLEASE cannot be
altered or amended except by a written agreeemnt executed in the same
manner as this SUBLEASE.
15. ACKNOWLEDGEMENT:
SUBTENANT hereby acknowledges that it has been fully advised by
SUBLESSOR of the condition of the roof covering the Premises and of
SUBLESSOR's efforts to have Crow Birmingham Developers fulfill its repair
and replacement obligation with respect to the roof as described in the
Maintenance Agreement between the SUBLESSOR and Crow Birmingham Developers.
SUBTENANT further acknowledges that it has been provided an opportunity to
have its own consultants inspect the condition of the roof.
IN WITNESS WHEREOF, the parties hereto have caused this SUBLEASE to be
executed the day and year first above written.
THE UNIROYAL XXXXXXXX
TIRE COMPANY (SUBLESSOR)
/s/ Xxxxx Xxxxxxx By:/s/ Xxxxxxx X. Xxxxxxxx
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Its: Executive Vice President
and CFO
/s/ Xxxxx X. Xxxxx
---------------------------
Witness
XXX XXXXXX COMPANY (SUBTENANT)
/s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxx
--------------------------- ---------------------------
Witness Its: Vice President-H.R.
--------------------------
/s/ Xxxx Xxxxxxx
---------------------------
Witness
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ACKNOWLEDGEMENT-SUBLESSOR
STATE OF OHIO )
: SS
COUNTY OF SUMMIT )
On this 8th day of October, 1993, before me, the undersigned Notary
Public, personally appeared Xxxxxxx X. Xxxxxxxx, who acknowledged himself to be
Executive Vice President and CFO of THE UNIROYAL XXXXXXXX TIRE COMPANY, a
Delaware corporation, and that he as such Vice President being authorized so
to do, executed the foregoing instrument for the purpose therein contained, by
signing the name of the corporation by himself as Vice President:
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxx
--------------------------
NOTARY PUBLIC FOR OHIO
MY COMMISSION EXPIRES: 0-0-00
XXXXX X. XXXXX, XXXXXX XXXXXX
XXXXXXXXXX-XXXXXX XXXXXX
STATE WIDE JURISDICTION, OHIO
MY COMMISSION EXPIRES SEPT. 6, 0000
XXXXXXXXXXXXXXX-XXXXXXXXX
XXXXX XX XXXXXXX )
: SS
COUNTY OF JEFFERSON )
On this 30 day of September, 1993, before me, the undersigned Notary
Public, personally appeared Xxxxx Xxxx, who acknowledged himself to be the Vice
President-HR of Xxx Xxxxxx Co., Inc., and that he as such Vice President being
authorized so to do, executed the foregoing instrument for the purpose therein
contained, by signing the name of the corporation by himself as Vice
President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Xxxxx X. Xxxxxx Green
Notary Public for Alabama
My Commission Expires: 9-16-97
NOTARY PUBLIC STATE OF ALABAMA AT LARGE.
MY COMMISSION EXPIRES: SEPT. 16, 1997.
BONDED THRU NOTARY PUBLIC UNDERWRITERS.
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EXHIBIT B
[Exhibit B contains a graphical depiction of the Premises which identifies the
location and relative size of each of Phase I, Phase II and Phase III
constituting a part of the Premises and the parking lot and access roads
servicing the Premises.]
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EXHIBIT C
SCHEDULE A: RENTAL PRIOR TO ROOF REPLACEMENT
---------------------------------------------
SQUARE FEET MONTHLY RENTAL
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Phase I 120,000 $14,117.65
Phase I and II 240,000 $28,235.29
Phase I, II, and III 340,000 $40,000.00
SCHEDULE B: RENTAL SUBSEQUENT TO ROOF REPLACEMENT
--------------------------------------------------
SQUARE FEET MONTHLY RENTAL
----------- --------------
Phases I, II, and III 340,000 $43,350.00
Schedule B rental above shall be effective on the 1st of the month following
the completion of the necessary roof replacement and notification in writing to
subtenant by sublessor of completion of said roof replacement.
