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EXHIBIT 10.25
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LEASE AGREEMENT
Dated as of December 1, 1978
BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD
OF
THE CITY OF DECATUR (ALABAMA)
AND
FRUEHAUF CORPORATION
(Plant Project)
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As set forth in Section 11.2 hereof, The Industrial Development Board of the
City of Decatur has assigned all of its right, title and interest in and to this
Lease Agreement to The First National Bank of Birmingham, as Trustee under the
Indenture of Mortgage and Deed of Trust dated as of December 1, 1978, referred
to herein.
This instrument was
prepared by:
M.C. O'Xxxx
Xxxxxxxx, Johnston, Gardner,
Xxxxx & X'Xxxx
0000 Xxxxx Xxxxxxxx-Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
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LEASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of this
Agreement and is only for convenience of
reference)
Page
----
ARTICLE I
Definitions
Section 1.1 Definitions ....................................... 1
Section 1.2 Effect of Headings and Table of Contents .......... 6
ARTICLE II
Representations
Section 2.1 Representations by the Board ...................... 7
Section 2.2 Representations by the Lessee ..................... 7
ARTICLE III
Lease of Project; Title and Condition;
Use and Quiet Enjoyment
Section 3.1 Lease ............................................ 9
Section 3.2 Title and Condition .............................. 9
Section 3.3 Disclaimer of Warranties ......................... 9
Section 3.4 Use of Project and Quiet Enjoyment ............... 10
ARTICLE IV
Acquisition and Construction of the Project;
Application of Bond Proceeds
Section 4.1 Agreement to Acquire and Construct the Project ... 10
Section 4.2 Application of Bond Proceeds ..................... 11
Section 4.3 Disbursements from the Project Fund .............. 11
Section 4.4 Certification of Completion Date ................. 14
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Section 4.5 Insufficiency of Project Fund ..................... 15
ARTICLE V
Lease Term; Rentals
Section 5.1 Lease Term; Renewal Term ......................... 15
Section 5.2 Basic Rent and Additional Rent .................... 17
Section 5.3 Prepayment of Basic Rent .......................... 18
Section 5.4 Obligations of Lessee Unconditional ............... 19
ARTICLE VI
Covenants of Lessee
Section 6.1 Maintenance and Modifications .................... 19
Section 6.2 Alterations and Additional Improvements .......... 20
Section 6.3 Disposition of Project Equipment, Covenant
Against Waste .................................. 21
Section 6.4 Taxes; Mechanics' and Materialmen's Liens ........ 22
Section 6.5 Insurance ........................................ 24
Section 6.6 Permitted Contests ............................... 26
Section 6.7 Indemnification of Board ......................... 27
Section 6.8 Further Assurances ............................... 28
Section 6.9 Reports; Certificates as to No Default ........... 28
Section 6.10 Notice of Default ................................ 29
ARTICLE VII
Casualty and Condemnation
Section 7.1 Casualty ......................................... 29
Section 7.2 Condemnation ..................................... 30
ARTICLE VIII
Purchase of Project
Section 8.1 General Option to Purchase ....................... 32
Section 8.2 Option to Purchase Upon Certain Contingencies .... 32
Section 8.3 Obligation to Purchase Upon Casualty or
Condemnation ................................... 33
Section 8.4 Refunding Limitations ............................ 34
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Section 8.5 Option to Purchase Unimproved Land ............... 35
Section 8.6 Easements ........................................ 37
Section 8.7 Obligation to Purchase upon Termination; Option
to Purchase During Renewal Terms ............... 38
Section 8.8 Closing to Purchase .............................. 39
ARTICLE IX
Corporate Existence; Consolidation, Merger, Etc.
Section 9.1 Corporate Existence; Qualification in Alabama .... 40
Section 9.2 Consolidation or Merger .......................... 40
Section 9.3 Assignment or Subleasing ......................... 40
ARTICLE X
Events of Default and Remedies
Section 10.1 Events of Default ................................ 41
Section 10.2 Remedies on Default .............................. 42
Section 10.3 Additional Rights of the Board ................... 45
Section 10.4 No Remedy Exclusive .............................. 46
Section 10.5 No Additional Waiver Implied by One Waiver ....... 46
ARTICLE XI
Provisions Relating to Indenture
Section 11.1 Restrictions on Termination or Modification
of this Agreement .............................. 46
Section 11.2 Lessee's Assent to Indenture ..................... 47
Section 11.3 Supplemental Indentures .......................... 48
Section 11.4 Method of Payment ................................ 48
ARTICLE XII
Miscellaneous
Section 12.1 No Merger ........................................ 48
Section 12.2 Limitation on Board's Liability .................. 48
Section 12.3 Governing Law .................................... 49
Section 12.4 Notices .......................................... 49
Section 12.5 Binding Effect ................................... 49
Section 12.6 Execution in Counterparts ........................ 49
Section 12.7 Severability ..................................... 50
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Signatures ......................................................... 50
Acknowledgments .................................................... 51
Schedule A - Description of Leased Land
Schedule B - Description of Project Equipment
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LEASE AGREEMENT dated as of December 1, 1978, between THE INDUSTRIAL
DEVELOPMENT BOARD OF THE CITY OF DECATUR, a public corporation duly organized
and existing under the laws of the State of Alabama (the "Board"), whose address
is X.X. Xxx 0000, Xxxxxxx, Xxxxxxx 00000, and FRUEHAUF CORPORATION, a Michigan
corporation (the "Lessee"), whose address is 00000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000.
ARTICLE I
Definitions
Section 1.1. Definitions.
(a) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1) "This Agreement" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
instruments supplemental hereto entered into pursuant to the applicable
provisions hereof.
(2) All references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. The words
"herein", "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section or
other subdivision.
(3) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular.
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles.
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(b) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
"Additional Rent" means the rent payable under Section 5.2 (b), (c) or
(d).
"Affiliate" means as specified in Section 8.4.
"Authorized Lessee Representative" means at any time each officer or
employee of the Lessee authorized to act hereunder and under the Indenture on
behalf of the Lessee as evidenced by a Lessee Certificate to such effect and
containing the specimen signature of such officer.
"Basic Rent" means the rent payable under Sections 5.2(a) and 5.3.
"Board" means the Person named as the Board in the first paragraph of
this instrument until a successor public corporation shall have become such
pursuant to Section 6.5 of the Indenture, and thereafter Board shall mean such
successor.
"Bond" or "Bonds" means the 9.70% First Mortgage Industrial
Development Revenue Bonds (Fruehauf Corporation Plant Project) Series 1978A, due
December 1, 1998, of the Board issued and to be issued pursuant to the
Indenture.
"Bond Fund" means the Bond Fund created by Section 8.2 of the
Indenture.
"Bond Payment Date" means the date on which the principal of (and
premium, if any) or interest on any of the Bonds becomes due and payable,
whether on a Redemption Date or a Sinking Fund Payment Date (each as defined in
the Indenture), at Stated Maturity, by declaration or acceleration or otherwise,
in accordance with the terms of the Bonds and the Indenture, including, without
limitation, Section 6.1 of the Indenture.
"Bond Purchase Agreement" means the Bond Purchase Agreement dated as
of December 1, 1978, among the Board, the Lessee and Connecticut General Life
Insurance Company.
"Business Day" means any day other than a Saturday, a Sunday, any
legal holiday in the State in which the place of payment is located or any other
day on which the State banking
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institutions in such place of payment are authorized to suspend operations
under the laws of said State.
"Default" means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default.
"Event of Default" means those events specified in Section 10.1.
"Financing Act" means Act No. 648, enacted at the 1949 Regular Session
of the Legislature of Alabama, as heretofore amended, and further supplemented
by Act No. 1893, enacted at the 1971 Regular Session of the Legislature of
Alabama (Code of Alabama 1975, Title 11, Section 11-54-80 et seq.).
"Guaranty" means the Guaranty and Financial Agreement of even date
herewith among the Lessee, the Trustee and Connecticut General Life Insurance
Company (relating to the Bonds), as supplemented and amended.
The term "holder" when used with respect to any Bond means a Bondholder
as defined in the Indenture.
"Indenture" means the Indenture of Mortgage and Deed of Trust of even
date herewith between the Board and The First National Bank of Birmingham, as
Trustee, as supplemented and amended.
"Independent Engineer" means an engineer or an engineering firm
registered and qualified to practice the profession of engineering under the
laws of Alabama and who or which is not the full-time employee of the Board or
the Lessee.
"Leased Land" means the property described in Schedule A attached
hereto and made a part hereof.
"Lessee" means Fruehauf Corporation until a successor corporation shall
have become such pursuant to Section 9.2, and thereafter "Lessee" shall mean
such successor corporation.
"Lessee Certificate", "Lessee Request" and "Lessee Order" mean,
respectively, a written certificate, request and order signed in the name of
the Lessee by its Chairman of the Board, President or a Vice President, and by
its Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
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Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Net Proceeds" means the proceeds received in respect to the Project
from any fire or extended coverage insurance or condemnation or eminent domain
award or payment, net, after deduction of all expenses incurred in the
collection thereof.
"Opinion of Counsel" means a written opinion of counsel addressed to
the Trustee, for the benefit of the Holders of the Bonds, who may (except as
otherwise expressly provided in this Agreement) be counsel for the Board or the
Lessee, and who, if not General Counsel of the Lessee, is acceptable to the
Trustee.
The term "outstanding" when used with reference to the Bonds means
Outstanding as defined in the Indenture.
"Permitted Encumbrances" with respect to the Project means:
(i) the right reserved to or vested in any municipality or public
authority by the terms of any right, power, franchise, grant, license,
permit or provision of law to terminate such right, power, franchise, grant,
license or permit, provided, that the exercise of such right would not
materially impair the use of the Project for the purposes for which it is
held by the Lessee or materially affect its value;
(ii) the right reserved to or vested in any municipality or public
authority to purchase, condemn or appropriate the Project or any part
thereof;
(iii) liens for the taxes, assessments, levies, fees, charges, duties,
imposts, claims and demands referred to in Section 6.4 which are not at the
time due and payable, or the validity or amount of which is being contested
in compliance with the provisions of Section 6.6;
(iv) easements, rights of way, restrictions and other defects, liens,
encumbrances and irregularities in the title to the Project which do not
materially impair the use thereof for the purposes for which it is held by
the Lessee or materially affect its value;
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(v) rights reserved to or vested in any municipality or public
authority to control or regulate the Project or to use the Project in any
manner which does not materially impair the use thereof for the purposes
for which it is held by the Lessee or materially affect its value;
(vi) the lien and security interest of the Indenture;
(vii) the rights of the Lessee under this Agreement; and
(viii) any encroachment, encumbrance, exception or violation set forth
in Schedule A hereto.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Progress Certificate" means a written certificate signed in the name
of the Lessee by an Authorized Lessee Representative, and delivered to the
Trustee.
"Project" means the Leased Land, and the Project Equipment.
"Project Costs" means the aggregate of (a) the costs reasonably and
appropriately incurred by the Board or the Lessee in connection with the
acquisition of the Project, including the acquisition and installation of the
Project Equipment, the construction of any buildings, structures or permanent
improvements on the Leased Land and interest on the Bonds during the estimated
construction period contemplated by Section 4.1, and charged or properly
chargeable to fixed property accounts in accordance with generally accepted
accounting principles, including, without limitation, engineers' and
architects' fees, charges for labor, wages, salaries, materials, supplies,
superintendence, insurance, taxes and all other items (except operating or
maintenance expenses) in connection with such construction and so charged,
properly chargeable and conforming to such accounting principles, but excluding
the cost of any materials and supplies obtained in connection with any
buildings, structures or permanent improvements constructed or to be
constructed on the Leased Land and not incorporated therein, and (b) all costs
and expenses of the Board incurred in
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connection with the sale of the Bonds, including financial advisory fees, legal
fees and expenses, title insurance expenses, recording fees, survey costs and
other financing expenses.
"Project Equipment" means the property described in Schedule B
attached hereto and made a part hereof, and any machinery, apparatus, equipment,
fittings and fixtures to be acquired in addition thereto or in substitution or
renewal or repair thereof pursuant to Sections 4.1, 6.1, 6.2, 6.3, 7.1 or 7.2,
less any removed by the Lessee in accordance with Sections 6.3, 7.1 and 7.2.
"Project Fund" means the Project Fund created by Section 7.1 of the
Indenture.
"Redemption Date" when used with respect to any Bonds to be redeemed
means the date fixed by the Lessee in notices given to the Board and the Trustee
hereunder for redemption by or pursuant to the Indenture.
"Redemption Price" when used with respect to any Bond to be redeemed
means the price at which it is to be redeemed pursuant to the Indenture.
"Stated Maturity" when used with respect to any Bond or any
installment of interest thereon means the date specified in such Bond as the
fixed date on which the principal of such Bond or such installment of interest
is due and payable.
"Subsidiary" means as specified in Section 8.4.
"Trustee" means the Person named above as the "Trustee" under the
Indenture until a successor trustee shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter "Trustee" shall mean such
successor trustee.
"Weighted Average Life to Maturity" means as specified in Section 8.4.
Section 1.2. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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ARTICLE II
Representations
Section 2.1. Representations by the Board.
The Board hereby represents that:
(a) it is duly incorporated and existing under the provisions of the
Financing Act, has the power thereunder to enter into this Agreement and to
carry out its obligations hereunder and by proper corporate action has been
duly authorized to execute and deliver this Agreement;
(b) it proposes to lease, and upon purchase pursuant to Article VIII to
sell, the Project to the Lessee for the public purpose of promoting industry,
developing trade and furthering the use of the natural and human resources of
the State of Alabama and the development and preservation of the said
resources, by inducing manufacturing, commercial and research enterprises to
enlarge, expand and improve existing operations in said State, as contemplated
by the Financial Act;
(c) it proposes to finance actual Project Costs as certified in a
Lessee Certificate, by issuing and selling pursuant to the Bond Purchase
Agreement its Bonds in the aggregate principal amount of $3,500,000 and having
the terms and conditions specified in the Indenture; and
(d) the Project constitutes and will constitute a "project" of the
Board within the meaning of the Financing Act and the Board is issuing the Bonds
to aid in the financing of the Project to accomplish the public purposes of the
Financing Act.
Section 2.2. Representations by the Lessee.
The Lessee hereby represents that:
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(a) it is a corporation duly incorporated and existing in good standing
under the laws of the State of Michigan, is qualified to do business and is in
good standing as a foreign corporation in the State of Alabama, has power to
enter into this Agreement and by proper corporate action has been duly
authorized to execute and deliver this Agreement;
(b) it has received executed counterparts of the Indenture and the
Bond Purchase Agreement;
(c) the acquisition and construction of the Project have been approved
by the issuance of all necessary governmental construction permits and the
Project as designed complies with all presently applicable building and zoning
ordinances;
(d) it is in possession of the Leased Land and began construction of
the Project after April 6, 1978 (the date of adoption by the Board of a
resolution with respect to the Project and the financing thereof);
(e) the acquisition and construction of the Project by the Board, the
financing thereof through the sale of the Bonds and the leasing thereof
hereunder has induced it to enlarge, expand and improve existing operations in
the State of Alabama;
(f) it intends to operate the Project as a manufacturing facility
throughout the term of this Agreement, and no changes will be made in the
acquisition or construction of the Project which will have the effect of
impairing the effective use or character of the Project as contemplated by this
Agreement or of disqualifying the Project as a "project" within the meaning of
the Financing Act; and
(g) it has conveyed to the Board by warranty deed good and marketable
title to the Leased Land, and has conveyed, or as soon as possible after
acquisition and installation will from time to time convey, to the Board by xxxx
of sale good title to the Project Equipment, subject to Permitted Encumbrances
(other than the Indenture).
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ARTICLE III
Lease of Project, Title and Condition;
Use and Quiet Enjoyment
Section 3.1. Lease. The Board hereby leases the Project to the Lessee
for the term specified in Section 5.1 and upon the terms and conditions of this
Agreement.
Section 3.2. Title and Condition. The Project is leased subject to
(a) the rights of any parties in possession and to the existing state of the
title thereof as of the commencement of the term of this Agreement, (b) any
state of facts which an accurate survey or physical inspection thereof might
show, (c) all zoning regulations, restrictions, rules and ordinances, building
restrictions and other laws and regulations now in effect or hereafter adopted
by any governmental authority having jurisdiction, (d) with respect to
buildings, structures and other improvements, if any, located on the Project,
their condition as of the commencement of the term of this Agreement and (e)
Permitted Encumbrances (except the lien and security interest of the
Indenture). The Lessee represents to the Board that the Lessee has examined
the title to the Project immediately prior to the execution and delivery of
this Agreement and has found the same to be satisfactory for all purposes.
Section 3.3. Disclaimer of Warranties.
THE BOARD DOES NOT MAKE OR SHALL IT BE DEEMED TO HAVE MADE ANY
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR
CONDITION OF, OR AS TO THE SUITABILITY FOR ANY PURPOSE OF, THE PROJECT OR ANY
PART THEREOF OR AS TO THE ABILITY OF THE PROJECT TO PERFORM ANY FUNCTION OR ANY
WARRANTY OF MERCHANTABILITY OR FITNESS OF THE PROJECT OR ANY PART THEREOF FOR
ANY PARTICULAR PURPOSE OR AS TO THE TITLE TO OR THE BOARD'S INTEREST IN THE
PROJECT OR ANY PART THEREOF (SUBJECT TO SECTION 3.4) OR AS TO THE BOND PROCEEDS
BEING SUFFICIENT TO PAY THE PROJECT COSTS OR AS TO ANY OTHER MATTER RELATING TO
THE PROJECT OR ANY PART THEREOF, IT BEING AGREED THAT ALL SUCH RISKS, AS
BETWEEN THE BOARD, ON THE ONE HAND, AND THE LESSEE, ON THE OTHER HAND, ARE TO
BE BORNE BY THE LESSEE, AND THE BENEFITS OF ANY AND ALL IMPLIED WARRANTIES AND
REPRESENTATIONS OF THE BOARD ARE HEREBY WAIVED BY THE LESSEE.
THE LESSEE CONFIRMS THAT IT HAS SELECTED THE PROJECT AND EACH PART
THEREOF ON THE BASIS OF ITS OWN JUDGMENT AND
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EXPRESSLY DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES
MADE BY THE BOARD, AND THE BOARD REPRESENTS AND THE LESSEE ACKNOWLEDGES THAT THE
BOARD IS NOT A MANUFACTURER OR VENDOR OF ANY PART OF THE PROJECT.
Section 3.4. Use of Project and Quiet Enjoyment.
The Lessee may use and occupy the Project for any lawful purpose
permitted by the Financing Act.
As long as the Lessee shall substantially perform and observe all
covenants and conditions required to be performed and observed by it hereunder,
the Board warrants that it will not interfere with the peaceful and quiet
occupation and enjoyment of the Project by the Lessee; provided, that the Board,
the Trustee and Connecticut General Life Insurance Company (if it or its nominee
holds any of the Bonds) and any other institutional holder of at least 25% in
principal amount of the outstanding Bonds, and their agents, may enter upon and
examine the Project in a reasonable manner and at reasonable times.
Any failure by the Board to comply with the foregoing covenant shall
not give the Lessee any right, as long as any of the Bonds are outstanding under
the Indenture, to any abatement, reduction or offset against the Basic Rent,
Additional Rent or other amounts payable by the Lessee hereunder or to fail to
perform or observe any other covenants or conditions required to be performed or
observed by the Lessee hereunder.
ARTICLE IV
Acquisition and Construction of the Project;
Application of Bond Proceeds
Section 4.1. Agreement to Acquire and Construct the Project.
The Board agrees to construct, or cause the construction of, a new
industrial manufacturing building containing 57,600 square feet of floor space
with related improvements (including, without limitation, the Project Equipment
specifically described in Schedule B and such other Project Equipment deemed
necessary or appropriate by the Lessee for the operation, maintenance or
protection of such building) for use in the manufacturing of trailers or trailer
components and other transportation-related equipment to be located on
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the Leased Land in accordance with plans and specifications, including
supplements thereto and amendments thereof, now or hereafter filed by the Lessee
in the office of the Board. The Board has heretofore appointed the Lessee as
its agent to acquire, construct and install, or cause acquisition, construction
and installation of, the aforesaid building, equipment and related improvements.
All construction and installation shall be performed in a good and
workmanlike manner in compliance with all applicable laws, ordinances, rules and
regulations and shall comply with the requirements of any insurance policy
required to be maintained by the Lessee hereunder.
The Project Equipment and each item thereof shall be so installed in
buildings or structures on the Leased Land as to be removable without
significant permanent injury or structural damage to the Project. Prior to the
installation of any item of Project Equipment, the Lessee shall plainly,
distinctly, permanently and conspicuously place and fasten on each such item a
metal or other permanent plate, readily visible, bearing the following words:
"Property of the Industrial Development Board of the City of Decatur, subject to
Indenture of Mortgage and Deed of Trust dated as of December 1, 1978 (Fruehauf
Corporation Plant Project)". In case any such plate shall at any time be
removed, defaced or destroyed, the Lessee shall immediately cause the same to be
restored or replaced.
The Board agrees to use its best efforts to complete or substantially
to complete the Project no later than June 1, 1981, subject only to such delays
in construction as are occasioned by circumstances not reasonably within its
control.
Section 4.2. Application of Bond Proceeds.
Upon the sale of the Bonds pursuant to the Bond Purchase Agreement, the
Trustee is required under Section 7.1 of the Indenture to deposit the purchase
price of the Bonds in the Project Fund.
Section 4.3. Disbursements from the Project Fund.
Unless the Trustee has actual knowledge of an Event of Default under
the Indenture or has received written advice thereof from the holders of at
least 25% in principal amount of the Bonds at the time outstanding, the Board
and the Lessee shall be entitled, in accordance with Section 7.2 of the
Indenture,
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to withdraw the moneys in the Project Fund from time to time in payment, or in
reimbursement for the payment, of Project Costs upon furnishing to the Trustee
an order, signed by an authorized officer of the Board, and accompanied by a
Progress Certificate, dated not more than 30 days prior to the request for
withdrawal, setting forth in substance as follows:
(a) as to Project Costs relating to the sale of the Bonds, that the
sum then requested to be withdrawn either has been paid by the Lessee and/or
is justly due to persons whose names and addresses shall be stated, who have
rendered services or advanced expenses in connection therewith, including
expenses contemplated by Section 3.3 of the Bond Purchase Agreement; or
(b) as to Project Costs relating to the acquisition or construction of
the Project,
(i) that the sum then requested to be withdrawn either has been
paid by the Lessee and/or is justly due to contractors, subcontractors,
materialmen, engineers, architects, or other Persons (whose names and
addresses shall be stated) who have rendered services or furnished
materials or equipment for the Project, pursuant to the plans and
specifications therefor referred to in Section 4.1, and giving a brief
description of such services and the materials or equipment and the
principal subdivisions thereof and the several amounts so paid or due
to each of said persons in respect thereof;
(ii) that the sum then requested to be withdrawn, plus all sums
previously withdrawn on account of such acquisition or construction, do
not exceed the total cost thereof insofar as actually accomplished up
to the date of said Progress Certificates;
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(iii) that, except for the amounts, if any, stated in said
Certificate to be due for services or materials and retained for
the correction of defects or similar items in accordance with the
applicable construction contract or customary practice, there is
no outstanding indebtedness known to the Lessee, after due
inquiry, which is then due and payable for labor, wages,
services, materials or supplies in connection with such
acquisition or construction;
(iv) that no part of such several amounts paid and/or due
has been or is being made the basis of the withdrawal of any
moneys from the Project Fund in any previous or then pending
application, or has been paid out of the proceeds of insurance
received by Lessee as provided in Section 6.5; and
(v) that, if any part of the sum then requested to be
withdrawn is related to the acquisition of the Project Equipment
showing a brief description thereof, such Project Equipment
either has been installed as part of the Project or the payment
therefor is to be made to the Person manufacturing, assembling or
installing such Project Equipment;
(c) as to the Project Costs relating to interest on the Bonds
due on any Bond Payment Date commencing June 1, 1979 to and including
December 1, 1981, that the sum then requested to be withdrawn is due on the
date of such Progress Certificate as Basic Rent under Section 5.3, in which
case such sum shall be deposited by the Trustee in the Bond Fund to
constitute a credit against Basic Rent or has theretofore been paid by the
Lessee (otherwise than out of the Project Fund) in which case such sum
shall be paid by the Trustee to or upon Lessee Order.
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Section 4.4. Certification of Completion Date.
Upon the completion or substantial completion of the acquisition
and construction of the Project, the Lessee will deliver to the Trustee:
(a) a Completion Certificate which shall be a Lessee Certificate
dated not more than 10 days prior to receipt by the Trustee, setting forth
in substance as follows:
(i) that the acquisition and construction of the Project
have been completed or substantially completed pursuant to the
plans and specifications therefor referred to in Section 4.1;
(ii) that all sums which the Lessee is entitled to withdraw
from the Project Fund on account of services rendered or
materials furnished in connection with the Project have been
withdrawn;
(iii) that all sums for the payment of which the Board or
the Lessee is liable in respect to such acquisition or
construction have been paid in full; and
(iv) that no Event of Default under this Agreement has
occurred and is continuing.
(b) an Opinion of Counsel is dated not more than 30 days prior
to receipt by the Trustee setting forth in substance as follows:
(i) that the Board has acquired good, valid and legal title
to the Project, including the Project Equipment described in said
Certificate, free and clear of all mortgages, liens, security
interests, charges or encumbrances, except Permitted
Encumbrances; and
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(ii) that all of the Board's right, title and interest in
and to the Project is subject to the lien and security interest
of the Indenture and that the Board has complied with Section 6.3
of the Indenture;
and counsel in giving such Opinion of Counsel may rely as to matters
related to title to the Leased Land, recording of instruments in the real
property records and priority of real property liens upon the mortgage
title policy delivered pursuant to the Bond Purchase Agreement, as the same
may have been supplemented or endorsed to a date not more than 30 days
prior to the date of such Opinion of Counsel.
Section 4.5. Insufficiency of Project Fund.
If the amount in the Project Fund is not sufficient to pay all
Project Costs of the Project, the Lessee will pay all costs in excess of such
amount without any rights of (i) set-off, counterclaim, abatement against the
Basic Rent, Additional Rent or other amounts payable by the Lessee hereunder or
(ii) reimbursement from the Trustee or the holders of the Bonds or the Board.
ARTICLE V
Lease Term; Rentals
Section 5.1. Lease Term; Renewal Term.
The original term of this Agreement shall begin upon the
delivery hereof and, subject to earlier termination under Article VIII or X,
shall expire at the close of business on the first to occur of (a) the date on
which the Indenture ceases to be of further effect pursuant to the terms of
Section 9.1 of the Indenture or (b) December 1, 1998; provided, however, that,
until the entire indebtedness on the Bonds has been paid in full and discharged,
the covenant to pay Basic Rent and Additional Rent contained in Section 5.2
shall survive the termination or expiration of this Agreement and the
satisfaction and discharge of the Indenture.
So long as no Default or Event of Default shall have occurred
and be continuing and such renewal shall not be prohibited by applicable law or
governmental regulation, upon the expiration of the original term of this
Agreement as
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aforesaid, this Agreement shall be automatically renewed for an additional term
beginning on the date of such expiration and expiring at the close of business
on November 30, 2018. Such renewal term shall commence automatically unless and
until notice is given in writing by the Lessee to the Board at least 30 days
before the expiration of the original term of its intention to terminate this
Agreement at the end of such term, in which event this Agreement shall terminate
in accordance with the terms of this Section 5.1. All of the provisions of this
Agreement shall be applicable during any such renewal term unless otherwise
agreed upon by the Board and the Lessee, except as follows:
(a) the Basic Rent during each of the first 10 years of the renewal
term shall be $778 per year and during each of the second 10 years shall be
$26,250, payable in arrears on December 1 in each year;
(b) the Trustee shall act as escrow agent on behalf of the Board for
the purposes of receiving and applying the net proceeds received by the
Lessee from sales or dispositions by the Lessee of Project Equipment
pursuant to Section 6.3 hereof, the purchase price for any unimproved land
purchased by the Lessee pursuant to Section 8.5 hereof, and the Net
Proceeds of insurance or from any condemnation or eminent domain award or
payment, which amounts shall be applied by the Trustee in the same manner
as such amounts would be applied by the Trustee under the terms of the
Indenture if the Indenture were then in effect, except that any amounts
which would have been applied for the purposes set forth in paragraphs (1)
and (2) of Section 7.3 of the Indenture shall be payable to the Lessee
promptly after the occurrence of the event or events which would have
permitted the Trustee to apply such amounts in the manner set forth in said
Section 7.3;
(c) the provisions of Article II, Article IV, Section 5.2(b) and (d),
Section 5.3, Section 6.5 (except the first and final paragraphs thereof),
Section 6.8, Section 6.9, Section 6.10, Section 9.1, Section 9.2, clauses
(b), (c), (d) and (e) of Section 10.1, Section 10.2 (except that the Board
will retain its rights and remedies afforded by Alabama law generally to
lessors and landlords), Section 10.3, Section 10.4, Section 10.5 and
Article XI of this
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Agreement shall be deemed deleted and of no force and effect during any
such renewal term; and
(d) all Lessee Certificates, Lessee Requests, Lessee Orders and
Opinions of Counsel and all other certificates, documents, opinions and
notices required to be delivered or given to the Trustee by the Lessee
during the original term of this Agreement shall be delivered or given
during such renewal term to the Trustee in its capacity as escrow agent as
aforesaid.
The Lessee and the Board agree to enter into an escrow agreement with the
Trustee containing terms substantially identical to Sections 7.1 through 7.3,
inclusive, (except that Section 7.3 shall be modified to conform to the
provisions of clause (b) above) of the Indenture or such other provisions with
respect to the application of amounts received by the Trustee as escrow agent as
may be mutually agreeable to the Lessee, the Board and the Trustee. The escrow
agreement may also contain such additional terms and provisions as may be
mutually agreeable to said parties. All fees and expenses of the Trustee as
escrow agent during any such renewal term shall be paid by the Lessee.
Section 5.2. Basic Rent and Additional Rent.
(a) On the Business Day immediately preceding each Bond Payment Date
during the original term of this Agreement, subject to Section 3.2 of the Bond
Purchase Agreement, the Lessee shall pay to the Trustee at its principal
corporate trust office, in funds immediately available to the Trustee, for the
account of the Board, as Basic Rent for the Project, a sum equal to the amount
becoming due and payable on such Bond Payment Date as principal of (including
without limitation the amounts becoming due and payable on the Bonds by
operation of the Sinking Fund provided in Article V of the Indenture) and
premium, if any, or interest on, the Bonds, less the amount to be used as a
credit against such Basic Rent pursuant to Section 4.3(c) hereof or Section
7.3(i) or 8.3 of the Indenture, and, on demand, shall pay to the Trustee
interest on any Basic Rent not paid on the due date therefor (to the extent
enforceable under applicable law) at the rate of 10.7% per annum until paid. If,
as a result of investment by the Trustee or otherwise, the immediately available
funds in the Bond Fund at the opening of business on any Bond Payment Date are
less than the amount due and payable on such Bond Payment Date as principal of
(and premium, if any) or interest on the Bonds, the Lessee shall pay to the
Trustee as aforesaid, as Basic Rent for the Project, a sum equal to
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the deficiency.
(b) The Lessee agrees to pay to the Trustee, as Additional Rent,
promptly upon receipt of an itemized request of the Trustee, all amounts owing
by the Board to the Trustee pursuant to Section 11.7 of the Indenture as
compensation, in reimbursement of expenses, disbursements and advances, or in
indemnification for loss, liability or expense incurred.
(c) The Lessee agrees to pay, from time to time to the Board, as
Additional Rent, promptly upon the request of the Board, its reasonable costs
and expenses, including legal fees of counsel for the Board, incurred in
performing its covenants (other than its covenant to pay the principal of,
premium, if any, and interest on, the Bonds) under this Agreement and the
Indenture or in performing any covenants of the Lessee under this Agreement
which have not been duly performed by the Lessee.
(d) In the event the Lessee should fail to pay when due any of the
payments required under subsections (b) or (c) of this Section, the Lessee
agrees to pay, upon demand, as Additional Rent, interest on the overdue amount
at the rate of 10.7% per annum until paid.
Section 5.3. Prepayment of Basic Rent.
The Lessee may elect to prepay Basic Rent in a sum equal to the amount
sufficient to redeem outstanding Bonds pursuant to Section 4.1(c) of the
Indenture as a whole or in part (but if in part in units of $50,000 or integral
multiples of $1,000 in excess thereof, as specified by the Lessee in the notice
referred to hereinafter) on the Business Day immediately preceding the
Redemption date by giving written notice thereof to the Board and the Trustee
not more than 60 nor less than 40 days prior to such Redemption Date, which
notice shall specify the Redemption Date and certify that the refunding
limitations set forth in Section 8.4 have been complied with in connection with
any such prepayment of Basic Rent to be made prior to December 1, 1988. Notice
having been given as aforesaid, the Lessee covenants to prepay such Basic Rent
on the Business Day immediately preceding such Redemption Date.
Neither the Lessee's exercise of any prepayment option referred to in
this Section 5.3 nor the resulting partial redemption of Bonds (otherwise than
through operation of the Sinking Fund) shall reduce or otherwise affect its
obligation
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to make the payment of Basic Rent required by Section 5.2(a).
Section 5.4. Obligations of Lessee Unconditional.
The obligations of the Lessee to pay the Basic Rent, Additional Rent
and other amounts payable hereunder and to perform and observe the other
covenants and conditions on its part contained herein shall be absolute and
unconditional and shall not be subject to diminution by set-off, counterclaim,
abatement or otherwise, and the Lessee (i) will not suspend or discontinue, or
permit the suspension or discontinuance of, any payments of Basic Rent,
Additional Rent and other amounts payable hereunder, (ii) will perform and
observe all of its other covenants and conditions contained in this Agreement,
and (iii) will not suspend the performance of its obligations hereunder for any
cause including, without limitation, the fact that the proceeds in the Project
Fund may not be sufficient to pay, or reimburse the Lessee for the payment of,
all costs in connection with the Project, the removal of any portion thereof,
failure to complete the Project, any acts or circumstances that may constitute
failure of consideration, failure of or a defect of title to the Project or any
part thereof, eviction or constructive eviction, destruction of or damage to all
or any part of the Project, the taking by condemnation of all or any part of the
Project, commercial frustration of purpose, any change in the tax or other laws
or administrative rulings of or administrative actions by the United States of
America or the State of Alabama or any political subdivision of either, any
change in the environmental or pollution control laws or administrative rulings
of or administrative actions by the United States of America or the State of
Alabama or any political subdivision of either, or any failure of the Board to
perform and observe any agreement, express or implied, or any duty, liability or
obligation arising out of or connected with this Agreement.
ARTICLE VI
Covenants of Lessee
Section 6.1. Maintenance and Modifications.
The Lessee will at its own expense maintain the Project in as
reasonably safe condition as its operations permit and in good repair and
operating condition, ordinary wear and tear excepted, making from time to time
all necessary repairs thereto and renewals and replacements thereof, whether
structural or
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non-structural, foreseen or unforeseen, or ordinary or extraordinary.
The Board shall not be required to maintain, repair or rebuild, nor to
make any alterations, replacements or renewals of any nature or description to,
the Project or any part thereof (whether structural or non-structural, foreseen
or unforeseen or ordinary or extraordinary), nor to maintain the Project of any
part thereof, in any way, and the Lessee hereby expressly waives any right to
make repairs at the expense of the Board, which may now or hereafter be provided
for in any statute or law.
In the event that any buildings, structures or other improvements on
the Leased Land (whether now situated or hereafter constructed thereon) shall
(i) encroach upon any property, street or right-of-way adjoining or adjacent to
the Leased Land, (ii) violate the agreements or conditions contained in any
restrictive covenant affecting the Leased Land or any part thereof, (iii) hinder
or obstruct any easement or right-of-way to which the Leased Land is subject
or(iv) impair the rights of others under any such easement or right-of-way, the
Lessee shall, at its expense, either (x) obtain valid and effective waivers or
settlements of all claims, liabilities and damages resulting from each such
encroachment, violation, hindrance, obstruction or impairment, whether the same
shall affect the Board, the Lessee or both, or (y) make such changes in the
buildings, structures and other improvements to the Leased Land and take such
other action as shall be reasonably necessary to remove such encroachments,
hindrances or obstructions and to end such violations or impairments, subject in
the case of any alterations or removals to the requirements of Section 6.2.
Section 6.2. Alterations and Additional Improvements.
The Lessee may, at its expense, make additions to, alterations of,
removals of and substitutions for the buildings, structures, facilities or
other improvements or portions thereof situated on the Leased Land, provided,
that (i) the market value of the Project upon completion thereof shall not
thereby be lessened, (ii) the foregoing actions shall be preformed in a good
and workmanlike manner, and (iii) such additions, alterations, removals or
substitutions shall be expeditiously completed in compliance with all laws,
ordinances, orders, rules, regulations and requirements applicable thereto. All
work done in connection with each such addition, alteration, removal or
substitution shall not violate the requirements of any insurance
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policy required to be maintained by the Lessee hereunder or the orders, rules
and regulations of the National Fire Protection Association or any body
exercising similar functions. The Lessee shall promptly pay all costs and
expenses of each such addition, alteration, removal or substitution and shall
discharge all liens filed against the Project arising out of the same. The
Lessee shall procure and pay for all permits and licenses required in
connection with any such addition, alteration, removal or substitution.
The Lessee may, at its expense, (i) construct or cause to be
constructed upon the Leased Land any additional buildings, structures or other
improvements and (ii) install, assemble or place or cause to be installed,
assembled or placed, upon the Project any items of machinery or equipment used
or useful in the Lessee's business, in each case upon compliance with all the
terms and conditions set forth in the preceding paragraph. All such buildings,
structures and other improvements, as well as any additions, alterations and
substitutions made pursuant to the preceding paragraph, shall be and remain a
part of the realty and the property of the Board, subject to this Agreement,
and the Board shall have full right, power and authority to subject the same to
the lien of the Indenture. Such machinery or equipment shall not constitute a
part of the Project nor be subject to the lien and security interest of the
Indenture and may be removed from the Project at any time prior to the
expiration or earlier termination of this Lease, provided that the Lessee shall
repair any damage to the Project resulting from such removal.
Section 6.3. Disposition of Project Equipment, Covenant Against
Waste.
The Lessee shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be continuing under
this Agreement, without the consent of the Board, to sell or dispose of any
Project Equipment which, in the opinion of the Lessee, may have become obsolete
or unfit for use or no longer useful or profitable in the conduct of the
operations of the Lessee under this Agreement.
Any net cash proceeds received by the Lessee from the sale or
disposition of Project Equipment under this Section shall be paid to the
Trustee for deposit into the Project Fund unless the sum of such proceeds and
any other proceeds received by the Lessee from sales or dispositions of Project
Equipment during the preceding 12-month period and not paid to the Trustee
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under this Section is less than $250,000.
The Lessee shall be entitled, in accordance with Section 7.2 of
the Indenture, to withdraw such proceeds within 12 months after the receipt
thereof by the Trustee to pay, or to reimburse the Lessee for the payment of,
the cost of acquiring other Project Equipment not necessarily of the same
character, but of the value at least equal to that so sold or disposed of at
the time of sale or disposition, which shall forthwith become the property of
the Board, upon furnishing a Progress Certificate dated not more than 30 days
prior to the request for withdrawal, setting forth in substance the matters
set forth in subsection (b) of Section 4.3, but with respect to such
acquisition of Project Equipment.
Any such proceeds which remain in the Project Fund for a period
of 12 months after receipt by the Trustee shall be applied in accordance with
Section 7.3 of the Indenture and, if to be applied in redemption of Bonds under
Section 7.3(2) of the Indenture, the Lessee shall specify in a written notice
given to the Board and the Trustee the Redemption Date for such redemption.
The Lessee covenants not to do or suffer any waste to any
buildings or structures on the Leased Land or to the Project Equipment.
Section 6.4. Taxes, Mechanics' and Materialmen's Liens.
Subject to Section 6.6, the Lessee shall pay when due
(a) all taxes, assessments (including assessments for benefits
from public works or improvements, whether or not begun or completed
prior to the commencement of the term of this Agreement and whether or
not to be completed within said term), levies, fees, water and sewer
rents and charges, and all other governmental charges, general and
special, ordinary and extraordinary, and whether or not the same shall
have been within the express contemplation of the parties hereto,
together with any interest and penalties thereon, which are, at any
time, imposed or levied upon or assessed against (i) the Project or
any part thereof, (ii) any Basic Rent, Additional Rent or other
amounts payable by the Lessee under this Agreement,
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(iii) this Agreement or the leasehold estate hereby created or which arise
in respect of the operation, possession, occupancy or use of the Project
and which if not paid when due would materially impair the security of the
Bonds or materially encumber the Board's title to the Project;
(b) any gross receipts or similar taxes imposed or levied upon,
assessed against or measured by the Basic Rent, Additional Rent or other
amounts payable by the Lessee hereunder;
(c) all sales and use taxes which may be levied or assessed against
or payable by the Board or the Lessee on account of the acquisition,
leasing or use of the Project or any portion thereof; and
(d) all charges for water, gas, light, heat, telephone, electricity,
power and other utility and communication services rendered or used on or
about the Project.
The Lessee agrees to furnish to the Board, within 30 days after the last day for
payment without penalty or interest, and upon written demand by the Board or
the Trustee therefor, proof of the payment of all such taxes, assessments,
levies, fees, expenses, rents and charges and all such utility and
communication charges which are payable by the Lessee as provided in this
Section. In the event that any assessment levied or assessed against the
Project may be legally paid in installments, the Lessee shall have the option
to pay such assessments in installments.
Subject to Section 6.6 and to such delays as are occasioned by
circumstances not reasonably within the Lessee's control, the Lessee shall, at
its expense, comply with and shall cause the Project to comply with all
governmental statutes, laws, rules, orders, regulations and ordinances
affecting the Project or any part thereof, or the use thereof, including those
which require the making of any structural, unforseen or extraordinary changes,
whether or not any of the same, which may hereafter be enacted, involve a
change of policy on the part of the governmental body enacting the same. The
Lessee shall, at its expense, comply with the requirements of all policies of
insurance which at any time may be in force with respect to the Project, and
with the provisions of all contracts, agreements and restrictions affecting the
Project or any part
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thereof or the ownership, occupancy or use thereof.
Subject to Section 6.6, the Lessee will not, directly or indirectly,
create, or permit to be created or to remain, and will promptly discharge, or
cause to be discharged, any lien with respect to the Project or any part
thereof or the Lessee's interest therein or the Basic Rent, Additional Rent or
other amounts payable by the Lessee under this Agreement, other than Permitted
Encumbrances. The existence of any mechanic's, laborer's, materialman's,
supplier's or vendor's lien, or any right in respect thereof, shall not
constitute a violation of this Section, if payment is not yet due upon the
contract or for the goods or services in respect of which any such lien has
arisen.
From and after the date of delivery to the Trustee of the Completion
Certificate described in the first paragraph of Section 4.4, nothing contained
in this Agreement shall be construed as constituting, expressly or impliedly,
the consent of the Board to, or request of the Board for, the performance of
any labor or services or the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Project or any part
thereof by any contractor, subcontractor, laborer, materialman or vendor.
Notice is hereby given that the Board will not be liable from and after such
date for any labor, services or materials furnished or to be furnished to the
Lessee or to anyone holding the Project or any part thereof through or under
the Lessee, and that no mechanic's or other liens for any such labor, services
or materials shall attach to or affect the interest of the Board in and to the
Project.
Section 6.5. Insurance.
The Lessee will maintain, at its expense, insurance on the Project
against such casualties and contingencies of such types (including fire and
extended coverage, public liability, and workmen's compensation insurance) and
in such amounts, if any, as is customary in the case of corporations of
established reputations engaged in the same or similar business and similarly
situated; provided that the Lessee may self-insure to the extent that such
self-insurance is customary in the case of corporations of established
reputations engaged in the same or similar business and similarly situated.
The insurance referred to above shall be written by financially sound
and responsible companies which are authorized
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to do an insurance business in the State of Alabama, and such fire and extended
coverage insurance shall name as the insured parties thereunder the Board and
the Lessee, as their interests may appear. The public liability insurance
referred to above shall be written by financially sound and responsible
companies and such insurance shall name as the insured parties thereunder the
Board, the Trustee and the Lessee, as their interests may appear. Neither the
Board nor the Trustee shall be required to prosecute any claim against, or to
contest any settlement proposed by, any insurer, provided that the Lessee may,
at its expense, prosecute any such claim or contest any such settlement.
Insurance claims by reason of damage to or destruction of any portion
of the Project shall be adjusted by the Lessee, but the Board shall have the
right to join with the Lessee in adjusting any such loss.
Every fire and extended coverage insurance policy referred to above
shall bear a first mortgage endorsement in favor of the Trustee; and the
proceeds of such insurance arising out of any single casualty in excess of
$250,000 shall be made payable to the Trustee, provided that any recoveries
under any of said policies shall be applied by the Trustee in the manner
provided in Section 7.1. Each such policy shall contain an agreement by the
insurer that it waives all rights of subrogation against the Lessee, the Board
and any owner of the Project and that it will not cancel such policy except
after 10 days' prior written notice to the Board and the Trustee.
The Lessee shall deliver to the Trustee promptly after the execution
and delivery of this Agreement the original or duplicate policies or
certificates of the insurers satisfactory to the Trustee evidencing all the
insurance which is required to be maintained by the Lessee hereunder, and the
Lessee shall, within 10 days prior to the expiration of any such insurance,
deliver other original or duplicate policies or other certificates of the
insurers evidencing the renewal of such insurance, if then required to be
maintained by the Lessee hereunder.
The Lessee shall not obtain or carry separate insurance concurrent in
form or contributing in the event of loss with that required in this Section to
be furnished by the Lessee unless the Board, or the Board and the Trustee (as
specified above), are included therein as named insureds, with loss payable as
in this Agreement provided. The Lessee shall immediately notify the Board and
the Trustee whenever any such separate
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insurance is obtained and shall deliver to the Trustee the policies or
certificates evidencing the same.
All proceeds of any insurance on the Project, to the extent that the
same shall not be payable to the Trustee as aforesaid, shall be applied by the
Lessee to the repair, restoration or replacement of the property destroyed or
damaged within 12 months after receipt thereof. If the Lessee Certificate
furnished under Section 6.9 shows insurance proceeds remaining to be applied or
paid during the 12-month period referred to in the preceding sentence, the
Lessee will deliver to the Trustee, within 90 days after the end of such
12-month period, a Lessee Certificate showing that such proceeds have been so
applied.
Section 6.6. Permitted Contests.
The Lessee shall not be required to (a) pay any tax, assessment,
levy, fee, rent or charge referred to in the first paragraph of Section 6.4,
(b) comply with any statute, law, rule, order, regulation or ordinance referred
to in the second paragraph of Section 6.4, (c) discharge or remove any lien
referred to in Section 6.2 or the third paragraph of Section 6.4, or (d) obtain
any waivers or settlements or make any changes or take any action with respect
to any encroachment, hindrance, obstruction, violation or impairment referred
to in the third paragraph of Section 6.1, so long as the Lessee shall contest,
in good faith and at its expense, the existence, the amount or the validity
thereof, the amount of the damages caused thereby, the extent of its liability
therefor or for any other reason, by appropriate proceedings which shall
operate during the pendency thereof to prevent (i) the collection of, or other
realization upon, the tax, assessment, levy, fee, rent or charge or lien,
encumbrance or charge so contested, (ii) the sale, forfeiture or loss of the
Project, or any part thereof, or the Basic Rent, Additional Rent or other
amounts payable by the Lessee under this Agreement to satisfy the same or to
pay any damages caused by the violation of any such statute, law, rule, order,
regulation or ordinance or by any such encroachment, hindrance, obstruction,
violation or impairment, (iii) any interference with the use or occupancy of
the Project or any part thereof, and (iv) any interference with the payment of
the Basic Rent, Additional Rent or other amounts payable by the Lessee under
this Agreement, or any portion thereof. The Lessee further agrees that each
such contest shall be diligently prosecuted to a final conclusion. The Lessee
will save the Board harmless against any and all losses, judgments, decrees
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and costs (including all reasonable attorneys' fees and expenses) in connection
with any such contest and will, promptly after the final settlement, compromise
or determination of such contest, fully pay and discharge the amounts which
shall be levied, assessed, charged or imposed or be determined to be payable
therein or in connection therewith, together with all penalties, fines,
interests, costs and expenses thereof or in connection therewith, and perform
all acts the performance of which shall be ordered or decreed as a result
thereof. No such contest shall subject the Board or the Trustee to the risk of
any material civil liability or the risk of any criminal liability, and the
Lessee shall give such reasonable security to the Board and the Trustee as may
be reasonably requested by the Board or the Trustee to insure compliance with
the foregoing provisions of this Section.
Section 6.7. Indemnification of Board.
The Lessee agrees to pay, and to indemnify the Board against, any and
all liabilities, losses, damages, claims or actions (including all reasonable
attorneys' fees and expenses of the Lessee and the Board), of any nature
whatsoever incurred by the Board without gross negligence on its part arising
from or in connection with its performance or observance of its covenants or
conditions under the Bond Purchase Agreement, this Agreement or the Indenture,
including without limitation, (1) any injury to, or the death of, any person or
any damage to property on the Leased Land or upon adjoining sidewalks, streets
or ways, or in any manner growing out of or connected with the use, nonuse,
condition or occupation of the Project or any part thereof or resulting from
the condition thereof or of adjoining sidewalks, streets, or ways, (ii) any
other act or event occurring upon, or affecting, any part of the Project, (iii)
violation by the Lessee of any contract, agreement or restriction affecting the
Project or the use thereof of which the Lessee has notice and which shall have
existed at the commencement of the term hereof or shall have been approved by
the Lessee or of any law, ordinance or regulation affecting the Project or any
part thereof or the ownership, occupancy or use thereof and (iv) liabilities,
losses, damages, claims or actions arising out of the offer and sale of the
Bonds or a subsequent sale or distribution of any of the Bonds, except if the
same resulted from a representation or warranty of the Board in the Bond
Purchase Agreement or any certificate delivered by the Board pursuant thereto
being false or misleading in a material respect and such representation or
warranty was not based upon a similar representation or warranty of the Lessee
furnished to the Board
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in connection therewith. The Lessee hereby agrees that the Board shall not
incur any liability to the Lessee, and shall be indemnified against all
liabilities, in exercising or refraining from asserting, maintaining or
exercising any right, privilege or power given to the Board under the Indenture
if the Board is acting in good faith and without gross negligence or in reliance
upon a Lessee Request. The covenants of indemnity by the Lessee contained in
this paragraph shall survive the termination of this Agreement.
Nothing contained in the foregoing paragraph shall impose any
obligation on the Lessee to indemnify the Board when it is acting otherwise than
in its capacity as the lessor under this Agreement or the issuer of the Bonds
under the Indenture.
Section 6.8. Further Assurances.
The Lessee agrees to do, execute, acknowledge and deliver all and every
such further acts, conveyances and assurances as the Board shall reasonably
require in order that the Board may comply with its obligations under Section
6.3 of the Indenture and to cause to be furnished to the Board and the Trustee
any financing statements (and any continuation statements in respect thereof)
and the Opinions of Counsel, as required by said Section 6.3 and within the
times specified therein.
Section 6.9. Reports: Certificates as to No Default.
If during any calendar year (commencing with the 1979 calendar year)
there have been either (i) any sales or disposition of Project Equipment under
Section 6.3 of $250,000 or more; or (ii) any proceeds of insurance on the
Project of $250,000 or more, have been paid as provided in Section 6.5, the
Lessee will deliver to the Trustee, within 90 days after the end of each such
calendar year, a Lessee certificate stating
(a) in respect of such sales or dispositions aggregating $250,000 or
more (i) that each such action was duly taken in conformity with Section 6.3,
(ii) the date thereof, (iii) the net cash proceeds received, (iv) the amount,
if any, of such proceeds paid to the Trustee pursuant to Section 6.3 and (v)
the amount, if any, of such proceeds remaining to be withdrawn on or before a
date to be specified therein (which shall be 12 months from the date paid to
the Trustee) under Section 6.3 or
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(b) in respect of such payments of insurance proceeds aggregating
$250,00 or more (i) the amount of and the date on which such proceeds were so
paid, (ii) the amount, if any, of such proceeds applied prior to the date of
such Lessee Certificate to the repair, restoration or replacement of the
property destroyed or damaged, and (iii) the amount, if any, of such proceeds
remaining to be applied on or before a date to be specified therein (which
shall be 12 months from the date of such receipt) under Section 7.1.
Section 6.10. Notice of Default.
The Lessee will give notice to the Board, each holder of the Bonds and
the Trustee of the occurrence of any Event of Default promptly upon having
knowledge thereof.
ARTICLE VII
Casualty and Condemnation
Section 7.1. Casualty.
If at any time after the completion or substantial completion of the
Project, the Project or any part thereof shall be damaged or destroyed by fire
or other casualty, but not to the extent contemplated by Section 8.3(a) the
Lessee shall promptly notify the Board and the Trustee thereof and the Lessee
shall within a reasonable time, subject only to such delays in acquisition or
construction as are occasioned by circumstances not reasonably within its
control, rebuild, replace or repair such damage or destruction in conformity
with Section 6.1 and the first paragraph of Section 6.2 and in such manner as to
restore the Project to at least as good a condition as existed immediately prior
to such damage or destruction and to a manufacturing unit having a fair market
value not less than the fair market value of the Project immediately prior to
such damage or destruction.
Unless the Trustee has actual knowledge of an Event of Default under
the Indenture or has received written advice thereof from the holders of at
least 25% in principal amount of the Bonds at the time outstanding, the Lessee
shall be entitled, in accordance with Section 7.2 of the Indenture, to withdraw
the Net Proceeds of insurance received by the Trustee on account of such damage
or destruction to pay, or to reimburse the Lessee
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for the payment of, the costs and expenses of rebuilding, replacing and
repairing of such damage or destruction upon receipt by the Trustee of a
Progress Certificate dated not more than 30 days prior to the request for
withdrawal, setting forth in substance the matters set forth in subsection (b)
of Section 4.3, but with respect to such rebuilding, replacing and repairing.
After the completion or substantial completion of such rebuilding,
replacing or repairing such damage or destruction, the Lessee shall deliver to
the Board a Completion Certificate and, if the costs and expenses thereof
(irrespective of any available Net Proceeds) are at least $250,000, an Opinion
of Counsel setting forth in substance the matters set forth, respectively, in
subsections (a) and (b) of Section 4.4, but with respect to such rebuilding,
replacing and repairing.
Any Net Proceeds of insurance on account of such damage or destruction
which remain in the Project Fund after the delivery to the Trustee of the
Completion Certificate and any Opinion of Counsel required under this Section
shall be applied by the Trustee in accordance with Section 7.3 of the Indenture.
Section 7.2. Condemnation.
The Lessee hereby irrevocably assigns to the Trustee any award or
payment to which the Lessee may be or become entitled during the term of this
Agreement by reason of any taking of the Project or any part thereof in or by
condemnation or other eminent domain proceeding pursuant to any law, general or
special, by any governmental authority, civil or military, whether the same
shall be paid or payable in respect of the Lessee's leasehold interest
hereunder or otherwise. The Lessee shall be entitled to direct and control the
defense of any such proceedings, and to contest the proposed taking and the
amount payable therefor by such governmental authority.
If at any time a portion of the Project shall be taken by condemnation
or other eminent domain proceedings, which taking is not sufficient to render
the remaining portion thereof unsuitable for the Lessee's continued use or
occupancy or the use or occupancy of the Project or any part thereof shall be
temporarily requisitioned by any governmental authority, civil or military,
then this Agreement shall continue in full effect without abatement or
reduction of the Basic Rent, Additional Rent or other amounts payable by the
Lessee hereunder. The Lessee shall promptly notify the Board and the Trustee
thereof,
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and in the case of such taking, the Lessee shall within a reasonable time,
subject only to such delays in acquisition or construction as are occasioned by
circumstances not reasonably within its control, repair any damage caused by
such taking in conformity with Section 6.1 and the first paragraph of Section
6.2, and in such manner as to restore the Project to at least as good a
condition as existed immediately prior to such taking or requisition. In the
event of such temporary requisition, the Lessee shall be entitled to receive
the entire Net Proceeds payable by reason of such temporary requisition.
Unless the Trustee has actual knowledge of an Event of Default under
the Indenture or has received written advice thereof from the holders of at
least 25% in principal amount of the Bonds at the time outstanding, the Lessee
shall be entitled, in accordance with Section 7.2 of the Indenture, to
withdraw the Net Proceeds received by the Trustee on account of such taking, to
pay or to reimburse the Lessee for the payment of the costs and expenses of
such repair upon receipt by the Trustee of a Progress Certificate dated not
more than 30 days prior to the request for withdrawal, setting forth in
substance the matters set forth in subsection (b) of Section 4.3 but with
respect to such repair.
After the completion or substantial completion of such repair or such
taking, the Lessee shall deliver to the Board a Completion Certificate and, if
the costs and expenses thereof (irrespective of any available Net Proceeds) are
at least $250,000, an Opinion of Counsel setting forth in substance the matters
set forth, respectively, in subsections (a) and (b) of Section 4.4, but with
respect to such repair.
Any Net Proceeds on account of such taking which remain in the Project
Fund after the delivery to the Trustee of the Completion Certificate and any
Opinion of Counsel required under this Section shall be applied by the Trustee
in accordance with Section 7.3 of the Indenture.
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ARTICLE VIII
Purchase of Project
Section 8.1. General Option to Purchase.
The Lessee is hereby granted the option to purchase the Project at any
time on any Redemption Date at a purchase price equal to the amount sufficient
to redeem the then outstanding Bonds as a whole pursuant to Section 4.1(b) of
the Indenture by giving written notice thereof to the Board and the Trustee not
more than 60 nor less than 40 days prior to such Redemption Date, which notice
shall specify the Redemption Date and certify that the refunding limitations
set forth in Section 8.4 have been complied with in connection with any such
purchase to by made prior to December 1, 1988. Notice having been given as
aforesaid, the Lessee covenants to purchase the Project on such Redemption Date
in accordance with Section 8.8.
Section 8.2. Option to Purchase Upon Certain Contingencies.
The Board hereby grants to the Lessee the option to purchase the
Project at any time on or after December 1, 1988 at a purchase price equal to
the amount sufficient to redeem the then outstanding Bonds as a whole pursuant
to Section 4.1(c) of the Indenture, in the event that:
(a) as a result of (i) any changes in the Constitution of Alabama or
the Constitution of the United States of America, (ii) any legislative or
administrative action (State or Federal) or (iii) a final decree, judgment
or order of any court (State or Federal) entered after the contest thereof
by the Lessee in good faith, this Agreement shall have become void or
unenforceable or impossible of performance in accordance with the intent of
the parties as expressed in this Agreement or any unreasonable burdens or
excessive liabilities shall have been imposed on the Board or the Lessee in
respect of the Project, or
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(b) changes in the economic availability of labor, energy sources, raw
materials, operating supplies or facilities necessary for the operation of
the Project shall have occurred or such technological or other changes
shall have occurred which, in the Lessee's reasonable judgment, render the
Project uneconomic.
If the Lessee elects to exercise such option, it shall give written notice
thereof within 90 days following such event to the Board and the Trustee
specifying as the closing date of the purchase the Redemption Date (which shall
be not less than 40 days after the date of such notice) and which shall be
accompanied by a Lessee Certificate showing the event giving rise to such option
to purchase and certifying that the Board of Directors or the Executive
Committee of such Board of Directors of the Lessee has determined to discontinue
the operations of the Lessee, at the Project (and at any adjoining or adjacent
plants of the Lessee) at the earliest practicable date. The option to purchase
having been exercised as aforesaid, the Lessee covenants to purchase the Project
on such Redemption Date in accordance with Section 8.8
Section 8.3. Obligation to Purchase Upon Casualty or Condemnation.
The Lessee hereby covenants to purchase, and the Board hereby
covenants to sell, the Project, at a purchase price equal to the amount
sufficient to redeem the then outstanding Bonds as a whole pursuant to Section
4.1(d) of the Indenture, in the event that:
(a) the Project shall be substantially damaged or destroyed in any
casualty so that, in the reasonable judgment of the Lessee, the
rebuilding, replacing and repairing of the Project would be uneconomic and
the Lessee has determined not to effect such rebuilding, replacing and
repairing, or
(b) the entire Project shall be taken in or by condemnation or eminent
domain proceedings pursuant to any law, general or special, or any
substantial portion of the Project, which is sufficient, in the reasonable
judgment of the Lessee, to render the remaining portion thereof unsuitable
for the Lessee's continued use or occupancy, shall be taken in or by such
proceedings.
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The Lessee shall give written notice within 90 days following such event to the
Board and the Trustee specifying as the closing date of the purchase the
Redemption Date (which shall be not less than 40 days after the date of such
notice) and which shall be accompanied by a Lessee Certificate showing the
event giving rise to such obligation to purchase and certifying that the Lessee
has determined to discontinue the operations of the Lessee at the Project (and
any adjoining or adjacent plants of the Lessee) at the earliest practicable
date. On the closing date specified in such notice, the purchase of the Project
will be made in accordance with Section 8.8.
Section 8.4. Refunding Limitations.
No prepayment of Basic Rent pursuant to Section 5.3 or purchase pursuant
to Section 8.1 shall be made prior to December 1, 1988 (or, in the case of a
prepayment of Basic Rent, prior to the Business Day immediately preceding
December 1, 1988), as a part of a refunding or anticipated refunding operation
by the application, directly or indirectly, to such purchase, of funds borrowed
by the Lessee or any Subsidiary or Affiliate having (i) an effective interest
cost of less than 9.70% per annum or (ii) as of the date of the proposed
prepayment or purchase, a Weighted Average Life to Maturity less than the
remaining Weighted Average Life to Maturity of the Bonds.
The term "Subsidiary" herein means, as to a particular parent corporation
at any time, any corporation of which at least a majority of the outstanding
stock having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency, is, directly
or indirectly, owned by such parent corporation, or by one or more Subsidiaries
of such parent corporation, or by such parent corporation and one or more
Subsidiaries.
The term "Affiliate" means, as to a particular corporation, a Person
(other than a Subsidiary of such corporation) (1) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, such corporation, (2) which beneficially owns or holds 5%
or more of any class of the common stock of such corporation, or (3) 5% or more
of the common stock (or in the case of a Person which is not a corporation, 5%
or more
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of the equity interest) of which is beneficially owned or held by such
corporation or a Subsidiary; and the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction, the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
The term "Weighted Average Life to Maturity" of any indebtedness for
borrowed money means as at the time of the determination thereof the number of
years obtained by dividing the then Remaining Dollar-years of such indebtedness
by the then outstanding principal amount of such indebtedness. The term
"Remaining Dollar-years" of any indebtedness for borrowed money means the
amount obtained by (i) multiplying the amount of each then remaining sinking
fund, serial maturity or other required repayment, including repayment at final
maturity, by the number of years (calculated at the nearest one-twelfth) which
will elapse between the date of the proposed prepayment or purchase and the
date of that required repayment and (ii) totaling all the products obtained in
(i).
Section 8.5. Option to Purchase Unimproved Land.
If no Default exists under this Agreement, the Lessee shall have, and
is hereby granted, the option to purchase any part of the Leased Land (i) on
which neither a building or other fixed improvement is located (but upon which
public transportation or public utility facilities may be located) and (ii) all
boundaries of which are not less than ten feet from the nearest such building or
other fixed improvement (other than public transportation or public utility
facilities), at any time and from time to time at and for the purchase price of
$890 per acre, upon furnishing the Trustee and the Board:
(a) a Lessee Certificate showing (i) an adequate legal description of
such portion of the Leased Land, (ii) that the Lessee will exercise such
option on the date specified therein (which shall not be less than 45 nor more
than 90 days from the date of such notice) and (iii) the purpose for which such
portion of the Leased Land is being purchased will be in furtherance of the
Financing Act;
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(b) a Lessee Certificate stating that no Default exists under this
Agreement;
(c) a certificate signed by an Independent Engineer, dated not more
than 30 days prior to the date of the purchase, and stating that (i) such
portion of the Leased Land is not needed for the operation of the Project
for the purposes for which it was designed to be used or most recently
modified, and (ii) such purchase will not impair the usefulness of the
Project as a manufacturing plant and will not impair the means of ingress
thereto and egrees therefrom; and
(d) an amount of money equal to the purchase price which shall be
deposited by the Trustee in the Project Fund for application in accordance
with Section 7.3 of the Indenture.
The provisions of the first, second and third paragraphs of Section 8.8 shall be
applicable to the purchase under this Section, but only with respect to such
portion of the Leased Land. If such option relates to Leased Land on which
transportation or utility facilities are located, the Board shall retain an
easement to use such transportation or utility facilities to the extent
necessary for the efficient operation of the Project.
Notwithstanding the limitation upon the Lessee's option to purchase
part of the Leased Land set forth in clause (ii) of the first sentence of this
Section 8.5, the Lessee shall be entitled to purchase a part of the Leased Land
which has a boundary which is contiguous to a wall of a building located on the
Leased land if such part of the Leased Land is being purchased by the Lessee
for the purpose of constructing thereon an addition to such building, provided,
however, that such purchase shall in all other respects conform to the
requirements of this Section 8.5 and provide for equitable sharing of
maintenance if there is not common control by the Lessee. The Lessee and the
Board agree that all walls presently standing or hereafter erected on or
contiguous to the boundary line of the portion of the Leased Land so purchased
shall be party walls and each party grants the other a 10-foot easement
adjacent to any such party wall for the purpose of inspection, maintenance,
repair and replacement thereof and the tying-in of new construction. If the
Lessee utilizes any party wall for the purpose of tying-in construction that
will be utilized
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under common control with the Project, the Lessee may also tie in to the
utility facilities on the Leased Land for the purpose of serving the new
construction and may remove any non-loadbearing wall panels in the party wall;
provided, however, that if the property so purchased ceases to be operated
under common control with the Project or if an Event of Default occurs
hereunder, the Lessee covenants that it will install non-loadbearing wall
panels similar in quality to those that have been removed, will provide
separate utility services for the new construction and will make such other
repairs and modifications as may be reasonably necessary to restore the portion
of the building and the remainder of the Project affected by the new
construction to at least as good condition as prior to the new construction
(ordinary wear and tear excepted). No wall may be so utilized by the Lessee
unless prior thereto the Board and the Trustee have been furnished with a
certificate signed by an Independent Engineer stating that the proposed
utilization will not impair the usefulness of the Project as a manufacturing
plant.
In the event the Lessee shall exercise such option, it shall not be
entitled to any set-off, counterclaim, abatement or reduction of the Basic
Rent, Additional Rent or other sums payable by the Lessee hereunder other than
is provided in Section 7.3 of the Indenture.
Section 8.6. Easements. If no Default exists under this Agreement, the
parties hereto reserve the right, from time to time, to amend this Agreement
for the purpose of effecting the release from this Agreement of any part (or an
interest in such part) of the Leased Land with respect to which the Board
proposes to grant an easement or convey fee title for a railroad, utility
services or roads which, in the Lessee's judgment, will benefit the Project;
provided, there shall be deposited with the Trustee:
(a) an executed copy of said amendment;
(b) a resolution of the Board (i) stating that the Board is not in default
under any of the provisions of the Indenture and the Lessee is not, to the
knowledge of the Board, in default under any of the provisions of this
Agreement, (ii) giving a legal description of that portion (or the interest in
such portion) of the Leased Land to be released, (iii) stating the purpose for
which the Board desires the
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release, and (iv) requesting such release;
(c) a Lessee Certificate stating that no Default exists under this
Agreement;
(d) a copy of the instrument granting the easement or conveying the
title to a railroad, public utility or public body; and
(e) a certificate of an Independent Engineer, dated not more than 30
days prior to the date of the release, and stating that (i) the portion of
the Leased Land so proposed to be released is necessary or desirable in
order to obtain railroad, utility services or roads to benefit the Project
and is not otherwise needed for the operation of the Project for the
purposes for which it was designed to be used or most recently modified,
and (ii) the release so proposed to be made will not impair the usefulness
of the Project as a manufacturing plant and will not destroy the means of
ingress thereto and degrees therefrom.
If such release relates to Leased Land on which transportation or
utility facilities are located, the Board shall retain an easement to use such
transportation or utility facilities to the extent necessary for the efficient
operation of the Project as a manufacturing plant.
Upon compliance with the above conditions of this Section 8.6, the
Trustee shall be authorized to release any such property from the lien of the
Indenture and the Lessee shall be entitled to receive and retain any
compensation payable in connection with such grant or conveyance.
No release effected under the provisions of this Section 8.6 shall
entitle the Lessee to any set-off, counterclaim, abatement or reduction of the
Basic Rent, Additional Rent or other sums payable by the Lessee hereunder.
Section 8.7. Obligation to Purchase upon Termination: Option to
Purchase During Renewal Terms.
The Lessee hereby agrees to purchase the Project for a purchase price
of $10.00 in accordance with Section 8.8 upon the termination of this Agreement
at any time following the payment of the Bonds in full pursuant to the
Indenture. The Board hereby grants to the Lessee an option to purchase the
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Project for a purchase price of $1.00 in accordance with Section 8.8 at any time
during any renewal term of this Agreement provided for in the second paragraph
of Section 5.1, provided, that the Bonds shall have been theretofore paid in
full pursuant to the Indenture.
Section 8.8. Closing of Purchase.
At 10:00 o'clock A.M. on the date fixed for any purchase of the
Project, the Lessee shall pay to the Trustee, for the account of the Board, at
the principal corporate trust office of the Trustee, the applicable purchase
price specified in this Article, in funds immediately available to the Trustee,
against receipt by the Lessee of:
(a) a deed conveying the Board's title to the Leased Land to the
Lessee, in form suitable for recording, as such title existed on the date of
the commencement of this Agreement, subject, however, to all liens,
encumbrances and charges, exceptions and restrictions attaching thereto on or
after such date of commencement which have not been created by the Board or
which the Lessee is obligated under this Agreement to discharge and to all
applicable laws, regulations and ordinances, but free of the lien of the
Indenture and Lease,
(b) such bills of sale, Uniform Commercial Code termination statements
and other instruments as shall be necessary to transfer irrevocably and
unconditionally to the Lessee the Project Equipment and other property
comprising the Project but free of the security interest of the Indenture and
the Lease; and
(c) an assignment of all insurance policies, taxes, assumption
contracts and other contracts affecting the Project, all unpaid proceeds of
insurance (including any held for restoration) in respect of fire or other
casualty and all unpaid condemnation awards.
Any liens or encumbrances which the Board is obligated to discharge
shall not constitute an objection to title if the Board delivers at the closing
instruments sufficient to discharge the same of record.
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The Lessee shall pay all reasonable out-of-pocket expenses of the Board
incident to such conveyance and transfer (including reasonable counsel fees of
the Board and the Trustee), escrow fees, recording fees, title insurance
premiums and all applicable taxes which may be incurred or imposed by reason of
such conveyance and transfer and by reason of the delivery of said deed or other
instruments.
Upon completion of such purchase, but not prior thereto (whether or not
any delay shall be the fault of the Board), this Agreement and all obligations
hereunder shall terminate with respect to the Project, except those obligations,
actual or contingent, under this Agreement which arose prior to such date of
purchase.
ARTICLE IX
Corporate Existence; Consolidation, Merger, Etc.
Section 9.1. Corporate Existence; Qualification in Alabama.
Subject to Section 9.2, the Lessee will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and its right to do business as a foreign corporation in the State of
Alabama.
Section 9.2. Consolidation or Merger.
The Lessee shall not consolidate with or merge into any other Person or
convey or transfer or lease its properties and assets substantially as an
entirety to any Person or permit any other Person to consolidate with or merge
into it, except as permitted by the Guaranty.
Section 9.3. Assignment or Subleasing.
Subject to Section 9.2, the Lessee shall not assign this Agreement or
sublease the Project in whole or in part except under the following conditions:
(a) neither the assignment or this Agreement nor the assumption of
the obligations of the Lessee by an assignee or sublessee shall operate to
relieve the Lessee from primary liability for its obligations hereunder; and
the Lessee shall continue to remain primarily liable for payment of the Basic
Rent,
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Additional Rent and other amounts payable hereunder and for the performance
and observance of the other covenants and conditions to be performed and
observed by it to the same extent as though no assignment or sublease had
been made unless the holders of at least 66 2/3% in principal amount of the
Bonds outstanding under the Indenture give written consent otherwise;
(b) the assignee or the sublessee, as the case may be, shall
expressly assume, by an instrument supplemental hereto, executed and
delivered to the Board and the Trustee, in form satisfactory to the Trustee,
all obligations of the Lessee hereunder; and
(c) the Lessee shall deliver to the Board and the Trustee, in form
satisfactory to the Trustee, a Lessee Certificate and an Opinion of Counsel,
each stating that such assignment or sublease and such assumption of the
obligations of the Lessee hereunder comply with this Section and that all
conditions precedent provided for in this Section relating to such
assignment or sublease and assumption have been fully and legally complied
with.
ARTICLE X
Events of Default and Remedies
Section 10.1. Events of Default.
"Event of Default", whenever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment when due of any installment of Basic Rent,
Additional Rent or other amount payable hereunder;
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(b) any material representation made by the Lessee in this Agreement or
in any certificate, notice, demand or request made by the Lessee in writing
and delivered to the Board, the Trustee or any holder of the Bonds pursuant
to or in connection with any of said documents or the Indenture shall prove
to be untrue or incorrect in any material respect as of the date made;
(c) default in the performance or breach of any other covenant or
warranty of the Lessee in this Agreement and continuance of such default or
breach for a period of 60 days after any officer of the Lessee has actual
knowledge thereof; provided that if any such default (other than one
curable by payment of money) may be cured, but not within such 60-day
period, it shall not be an Event of Default hereunder unless the Lessee
does not commence to cure such default promptly during such 60-day period
or thereafter within a period of 120 days does not diligently prosecute
such curing to completion;
(d) an "Event of Default" within the meaning of the Guaranty shall
have occurred thereunder; or
(e) an "Event of Default" within the meaning of the Indenture shall
have occurred thereunder.
Section 10.2. Remedies on Default.
This Agreement and the term and estate hereby granted are subject to
the limitation that whenever an Event of Default shall gave occurred, the Board
shall have the right at its election, then or thereafter while any such Event of
Default shall continue, and notwithstanding the fact that the Board may have
some other remedy hereunder or at law or in equity, to give the Lessee written
notice of the intention of the Board to terminate the term of this Agreement on
the date specified in such notice, which shall be not less than 30 business days
after the giving of such notice, and upon the date so specified, the term of
this Agreement and the estate hereby granted shall expire and terminate with the
same force and effect as if the date specified in such notice were the date
fixed in Section 5.1 for the expiration of the term of this Agreement, and all
rights of the Lessee hereunder shall expire and terminate, but the Lessee shall
remain liable as hereinafter provided.
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If any such notice is given, the Board shall have the immediate right
of re-entry and possession of the Project and the right to remove all Persons
and property therefrom on the date specified in such notice.
In the event of any termination of the term of this Agreement as
provided above in this Section 10.2 or as permitted by law, the Lessee shall
peaceably quit and surrender the Project to the Board and the Board may without
further notice enter upon, re-enter, possess and repossess the same by summary
proceedings, ejectment or otherwise, and again have, repossess and enjoy the
same as if this Agreement had not been made, and in any such event neither the
Lessee nor any person claiming through or under the Lessee by virtue of any law
or an order of any court shall be entitled to possession or to remain in
possession of the Project, but shall forthwith quit and surrender the Project,
and the Board at its option shall forthwith, notwithstanding any other
provision of this Agreement, be entitled to recover from the Lessee (in lieu of
all other claims for damages on account of such termination) as and for
liquidated damages an amount equal to the excess of all Basic Rent reserved
hereunder for the unexpired portion of this Agreement discounted at the rate of
9.70% per annum to then present worth, over the fair rental value of the
Project at the time of termination for such unexpired portion, discounted at
the rate of 9.70% per annum to then present worth. Nothing herein contained
shall limit or prejudice the right of the Board, in any bankruptcy or
reorganization or insolvency proceeding, to prove for and obtain as liquidated
damaged by reason of such termination an amount equal to the maximum allowed by
any bankruptcy or reorganization or insolvency proceedings, or to prove for and
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law.
If the Board shall re-enter and obtain possession of the Project
following an Event of Default, the Board shall have the right, without notice,
to repair or alter the Project in such manner as the Board may deem necessary
or advisable so as to put the Project in good order and to make the same
rentable, and shall have the right, at the Board's option, to re-let the Project
or a part thereof, and the Lessee agrees to pay to the Board on demand all
reasonable expenses incurred by the Board in obtaining possession and in
altering, repairing and putting the Project in good order and condition and in
re-letting the same, including reasonable fees of attorneys and architects, and
all other reasonable expenses or commissions,
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and the Lessee further agrees to pay to the Board upon the Basic Rent payment
dates following the date of such re-entry to and including December 1, 1998 the
sums of money which would have been payable by the Lessee as Basic Rent
hereunder on such Basic Rent payment dates if the Board had not re-entered and
resumed possession of the Project, deducting only the net amount of rent, if
any, which the Board shall actually receive (after deducting from the gross
receipts the expenses, costs and payments of the Board which in accordance with
the terms of this Agreement would have been borne by the Lessee) in the
meantime from and by any reletting of the Project, and the Lessee hereby agrees
to remain liable for all sums otherwise payable by the Lessee under this
Agreement, including but not limited to, the aforesaid, and the Board shall
have the right from time to time to begin and maintain successive actions or
other legal proceedings against the Lessee for the recovery of such deficiency,
expenses or damages or for a sum equal to any installments of Basic Rent or
Additional Rent and other sums payable hereunder, and to recover the same upon
the liability of the Lessee herein provided, which liability it is expressly
covenanted shall survive the initiation of any action to secure possession of
the Project. Nothing herein contained shall be deemed to require the Board to
wait to begin such action or other legal proceedings until the date when this
Agreement would have expired by limitation had there been no such Event of
Default.
If, under any of the preceding provisions of this Section 10.2, the
Board shall be entitled to give the Lessee a notice of termination of the term
of this Agreement, the Board, without giving such notice of termination and
notwithstanding the continuance of the term of this Agreement, shall have, to
the extent permitted by applicable law, all the rights, powers and remedies
given to the Board by the preceding provisions of this Section 10.2, and the
Lessee shall have the obligations imposed upon it by such provisions. No such
re-entry or taking of possession of the Project by the Board shall be construed
as an election on the Board's part to terminate the term of this Agreement
unless a written notice of such intention be given to the Lessee or unless such
termination be decreed by a court of competent jurisdiction.
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Section 10.3. Additional Rights of the Board.
No right or remedy herein conferred upon or reserved to the Board is
intended to be exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing at law or in equity or by
statute. The failure of the Board to insist at any time upon the strict
performance of any covenant or agreement or to exercise any option, right,
power or remedy contained in this Agreement shall not be construed as a waiver
or a relinquishment thereof for the future. A receipt by the Board of any Basic
Rent, any Additional Rent or any other amount payable hereunder with knowledge
of the breach of any covenant or agreement contained in this Agreement shall
not be deemed a waiver of such breach, and no waiver by the Board of any
provision of this Agreement shall be deemed to have been made unless expressed
in writing and signed by the Board. In addition to other remedies provided in
this Agreement, the Board shall be entitled to the extent permitted by
applicable law, to injunctive relief in case of the violation, or attempted or
threatened violation, of any of the covenants, agreements, conditions or
provisions of this Agreement, or to a decree compelling performance of any of
the covenants, agreements, conditions or provisions of this Agreement, or to
any other remedy allowed to the Board at law or in equity.
To the extent permitted by law, the Lessee hereby waives and
surrenders for itself and all those claiming under it, including creditors of
all kinds; (i) any right and privilege which it or any of them may have under
any present or future constitution, statute or rule of law to redeem the
Project or to have a continuance of this Agreement for the terms hereby demised
after termination of the Lessee's right of occupancy by order or judgment of
any court or by any legal process or writ, or under the terms of this Agreement,
or after the termination of the term of this Agreement as herein provided, and
(ii) the benefits of any present or future constitution, statute or rule of law
which exempts property from liability for debt or for distress for rent.
If following an Event of Default, an action shall be brought for the
enforcement thereof in which it shall be finally determined that such Event of
Default has occurred, the Lessee shall pay to the Board all reasonable expenses
incurred in connection therewith, including reasonable attorneys' fees. In the
event the Board shall, without fault on its part,
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be made a party to any litigation commenced against the Lessee, if the Lessee,
at its expense, shall fail to provide the Board with counsel approved by the
Board, the Lessee shall pay all reasonable costs and reasonable attorney's fees
incurred or paid by the Board in connection with such litigation.
Section 10.4. No Remedy Exclusive.
No remedy herein conferred upon or reserved to the Board 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 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 and power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle
the Board to exercise any remedy reserved to it in this Article, it shall not
be necessary to give any notice, other than such notice as may be herein
expressly required.
Section 10.5. No Additional Waiver Implied by One Waiver.
In the event any covenant contained in this Agreement should be
breached and thereafter waived, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach hereunder.
ARTICLE XI
Provisions Relating to Indenture
Section 11.1. Restrictions on Termination or Modification of this
Agreement.
The Lessee covenants, for the benefit of the Trustee and the holders
of the Bonds outstanding under the Indenture, that this Agreement shall not
terminate or be terminated or surrendered (except as expressly permitted by
Article VIII, Section 9.3 or Article X) by the Lessee without the express
written consent of the Trustee and the holders of all the outstanding Bonds.
The provisions of this Agreement may, by supplements hereto and to the
Indenture, be modified or amended with the prior written consent of the Trustee
given in accordance with the provisions of Section 12.1 of the Indenture or
with the prior
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written consent of the Trustee and of the holders of not less than 66-2/3% in
principal amount of the Bonds outstanding under the Indenture given in
accordance with the provisions of Section 12.2 of the Indenture; provided,
however, that no such instrument shall, without the written consent of the
holders of all of the outstanding Bonds, change the duration of the term of this
Agreement or reduce the amount of Basic Rent payable hereunder or the purchase
price payable upon the purchase of the Project or change the place of payment
where, or the funds in which, any such Basic Rent or purchase price is payable,
or impair the right to exercise any of the remedies upon the occurrence of an
Event of Default hereunder or change the provisions of this Section. Any
attempted termination, surrender, modification or amendment otherwise than as
permitted in this Section shall be without force and effect and shall be null
and void.
Section 11.2. Lessee's Assent to Indenture.
The Lessee hereby assents to all terms and conditions of the
Indenture being delivered concurrently herewith, including, without limitation,
the assignment by the Board to the Trustee of the right, title and interest of
the Board in, to and under this Agreement and the creation of a first mortgage
lien and security interest, subject to Permitted Encumbrances, on the Project in
favor of the Trustee. If at any time the Board has the right under Section
11.9(e) of the Indenture to appoint a successor Trustee, the Lessee shall have
the right to select or approve the selection of such successor Trustee prior to
appointment by the Board. The Lessee further acknowledges that the Indenture
provides for the exercise by the Trustee of all rights of the Board hereunder to
give any consents, approvals, waivers, notices or the like and the right to take
any other discretionary action hereunder. The Lessee agrees to furnish to the
Trustee counterparts of all notices, certificates, opinions, reports or other
documents of any kind required to be delivered hereunder by the Lessee to the
Board. To the extent, if any, that this Agreement constitutes chattel paper (as
such term is defined in the Alabama Uniform Commercial Code as in effect), no
security interest in this Agreement may be created by the transfer of possession
of any counterpart thereof other than the original counterpart which shall be
identified as the counterpart containing the receipt therefor executed by the
Trustee on or immediately following the signature page hereof.
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Section 11.3. Supplemental Indentures.
As long as no Event of Default exists hereunder, the Board agrees to
enter into supplemental indentures to the Indenture permitted by Article XII
thereof only upon receipt of a Lessee Request approving the form of, and
requesting the Board to execute and deliver to the Trustee, each supplemental
indenture; provided, however, the Board shall not be obligated to enter into
any such supplemental indenture which, in the opinion of its counsel, either
has not been duly authorized by law or affects adversely the Board's rights,
duties or immunities under this Lease, the Bonds, the Indenture or the Bond
Purchase Agreement.
Section 11.4. Method of Payment.
Notwithstanding any provisions of this Agreement to the contrary,
any payment hereunder which is due on a date which is not a Business Day shall
be paid, subject to Section 3.2 of the Bond Purchase Agreement, on the next
preceding Business Day, but no such payment on a date prior to the due date
thereof shall entitle the Lessee to any discount or any credit with respect
thereto.
ARTICLE XII
Miscellaneous
Section 12.1. No Merger.
There shall be no merger of this Agreement nor of the leasehold
estate created hereby with any other estate in the Project, or any part
thereof, by reason of the fact that the same Person may acquire or own such
estates, directly or indirectly, and no such merger shall occur until all
Persons having any interest in this Agreement and the leasehold estate created
hereby shall join in a written instrument effecting such merger and shall duly
record it.
Section 12.2. Limitation on Board's Liability.
The Board is entering into this Lease in accordance with the
Financing Act and in no case whatsoever shall the Board have any pecuniary
liability for any loss in respect of any of the statements, representations,
warranties, agreements or obligations of the Board hereunder, as to all of
which the Lessee agrees to look solely to the Project, and none of which shall
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constitute an indebtedness of the Board or a loan of credit thereof within the
meaning of any constitutional or statutory provision.
Section 12.3. Governing Law.
This Agreement shall be governed exclusively by the laws of the State
of Alabama.
Section 12.4. Notices.
All notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when mailed by registered mail,
postage prepaid, addressed as follows:
(a) if to the Board, at X.X. Xxx 0000, Xxxxxxx, Xxxxxxx 00000,
Attention: Chairman;
(b) if to the Lessee, at 00000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: General Counsel;
(c) if to the Trustee, at 0000 0xx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000, Attention: Corporate Trust Department.
A duplicate copy of each notice, certificate, report or other communication
given hereunder by either the Board or the Lessee to the other shall also be
given to the Trustee. The Board, the Lessee and the Trustee may, by notice
given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Section 12.5. Binding Effect.
This Agreement shall inure to the benefit of and shall be binding upon
the Board and the Lessee and their successors and assigns.
Section 12.6. Execution in Counterparts.
This Agreement may be executed in counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
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Section 12.7. Severability.
In the event any provision of this 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.
IN WITNESS WHEREOF, the Board and the Lessee have caused this
Agreement to be duly executed, all as of the date first above written, but
actually on the dates specified in their respective acknowledgments hereto.
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF DECATUR
[SEAL] By /s/ X. X. XXXXXXX XX.
[SEAL] ----------------------------------
Chairman of the Board of Directors
Attest:
/s/ [ILLEGIBLE]
-------------------------
Secretary
FRUEHAUF CORPORATION
By /s/ XXXXX X. XXXXX, XX.
----------------------------------
[SEAL] Vice President
[SEAL]
Attest:
/s/ [ILLEGIBLE]
-------------------------
Secretary
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STATE OF ALABAMA )
) SS
COUNTY OF XXXXXX )
I, Xxxx X. Xxxxx, a Notary Public in and for said County in said State,
hereby certify that X.X. Xxxxxxx Xx. and Xxxxx X. Xxxxx whose names as Chairman
and Secretary of THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF DECATUR, a
public corporation under the laws of the State of Alabama, are signed to the
foregoing instrument and who are known to me, acknowledged before me on this
date that, being informed of the contents of the instrument, they, as such
officers and with full authority, executed the same voluntarily for and as the
act of said corporation.
GIVEN under my hand and official seal of office this 22nd day of
December, 1978.
/s/ XXXX X. XXXXX
------------------------
Notary Public
[NOTARIAL SEAL]
My Commission expires: 10-11-82
----------
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STATE OF MICHIGAN )
) SS
COUNTY OF XXXXX )
I, Xxxxxxxxx X. Xxxxxxx, a Notary Public in and for said County in
said State, hereby certify that Xxxxx X. Xxxxx, Xx. and T. Xxxx Xxxxx, whose
names as Vice President and Secretary of FRUEHAUF CORPORATION, a corporation
under the laws of the State of Michigan are signed to the foregoing instrument
and who are known to me, acknowledged before me on this day that, being
informed of the contents of the instrument, they, as such officers and with
full authority, executed the same voluntarily for and as the act of said
corporation.
GIVEN under my hand and official seal of office this 19th day of
December, 1978.
/s/ XXXXXXXXX X. XXXXXXX
---------------------------------
Notary Public
[NOTARIAL SEAL]
My Commission expires: September 2, 1981
---------------------------------------
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SCHEDULE A
DESCRIPTION OF LEASED LAND
The following described land, together with the entire interest
(whether now owned or hereafter acquired) in and to said land and the entire
interest of The Industrial Development Board of the City of Decatur (the
"Board") in and to all buildings, structures, improvements and appurtenances
now standing or at any time hereafter constructed or places upon said land,
including all right, title and interest of the Board, if any, in and to all
building material, building equipment and fixtures of every kind and nature
whatsoever on said land or in any building, structure or improvement now or
hereafter standing on said land, and the reversion or reversions, remainder or
remainders, in and to said land, said land being:
Beginning at the Northeast corner of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxxxx Xxxxxx, Xxxxxxx, and run thence S 0 degrees 54'W (Magnetic Bearing) along
the east boundary of Section 14 a distance of 30.00 feet to a point on the south
right of way margin of Alabama Xxxxxxx Xx. 00; thence N 89 degrees 03'W along
the south right of way margin of Alabama Xxxxxxx Xx. 00 a distance of 67.4 feet
to a point; thence N 89 degrees 08'W along the south right of way margin of
Alabama Xxxxxxx Xx. 00 distance of 572.02 feet to a point; thence S 0 degrees
54'W a distance of 1023.75 feet to the true point of beginning of the tract
herein described; thence from the true point of beginning run S 89 degrees 06'E
a distance of 195.00 feet to a point; thence N 0 degrees 54'E a distance of
12.00 feet to a point; thence S 89 degrees 06'E a distance of 32.00 feet to a
point; thence S 0 degrees 54'W a distance of 24.00 feet to a point; thence N 89
degrees 06'W a distance of 15.00 feet to a point; thence S 0 degrees 54'W a
distance of 150.00 feet to a point; thence N 89 degrees 06'W a distance of 10.00
feet to a point; thence S 0 degrees 54'W a distance of 305.00 feet to a point;
thence N 89 degrees 06'W a distance of 380.00 feet to a point; thence N 0
degrees 54'E a distance of 467.00 feet to a point; thence S 89 degrees 06'E a
distance of 178.00 feet to the true point of beginning, lying and being within
the NE 1/4 of Section 14, Township 5 South, Range 5 West, Xxxxxx County, Alabama
and containing 4.1241 acres, more or less, subject, however, to (1) the right of
way over the South 30 feet thereof, as provided in the deed from X.X. Xxxxxx to
X. X. Xxxxxxxx, dated March 1, 1928, and recorded in Deed Book 356, Page 328, in
the Probate Office of Xxxxxx County, Alabama, and (2) any rights which may still
exist under the condition respecting the drainage
59
system, as set forth in said deed from X. X. Xxxxxx to X. X. Xxxxxxxx dated
March 1, 1928, 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, and (ii) the right to tie into existing utilities
situated on property adjacent to or abutting said real property.
Also an easement for access, ingress and egress across a portion of Tracts 14
and 15, according to the Map of Property belonging to X. X. Xxxxxx, as recorded
in the Xxxxxx County Probate Office in Plat Book 1, at Page 62, and being more
particularly described as follows:
Beginning at the northeast corner of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxxxx Xxxxxx, Xxxxxxx, and run thence S 0 degrees 54'W along the east boundary
of said Section 14, a distance of 30.00 feet to a point on the south right of
way margin of Alabama Xxxxxxx Xx. 00; thence N89 degrees 03'W along the south
right of way margin of Alabama Xxxxxxx Xx. 00 a distance of 67.4 feet to a
point; thence N 89 degrees 08'W along the south right of way margin of Alabama
Xxxxxxx Xx. 00 a distance of 921.10 feet to the true point of beginning of the
tract herein described; thence from the true point of beginning continue N 89
degrees 08'W along the south right of way margin of Alabama Highway 20 a
distance of 50.00 feet to an iron pipe on the northwest corner of Tract 15;
thence S 0 degrees 54'W along the west boundary of Tract 15 a distance of
1490.52 feet to a point; thence S 89 degrees 06'E a distance of 221.08 feet to a
point on the west boundary of the real estate described for Fruehauf - 1978
Extrusion Expansion; thence N 0 degrees 54'E along the west boundary of said
real estate a distance of 50.00 feet to a point; thence N 89 degrees 06'W a
distance of 171.08 feet to a point; thence N 0 degrees 54'E a distance of
1440.55 feet to the true point of beginning, lying and being within the NE 1/4
of Section 14, Township 5 South, Range 5 West, Xxxxxx County, Alabama, and
containing 1.9073 acres, more or less.
60
SCHEDULE B
DESCRIPTION OF PROJECT EQUIPMENT
All right, title and interest of The Industrial Development Board of
the City of Decatur, (the "Board") in and to all machinery, apparatus,
equipment, fittings and fixtures of every kind and nature whatsoever, now owned
or hereafter acquired by the Board under the foregoing instrument to which this
Schedule B is attached, and now or hereafter placed in or affixed to any
building, structure or improvement now or hereafter constructed upon any real
property which (or upon any real property an interest in which) is now or
hereafter subject to the foregoing instrument to which this Schedule B is
attached and which is used in connection with the operation, maintenance or
protection of said buildings, structures and improvements as such, including,
without limitation, all engines, furnaces, conveyors, boilers, stokers, pumps,
heaters, tanks, dynamos, motors, generators, fans, blowers, vents, switchboards,
electrical equipment, heating, plumbing, lifting and ventilating apparatus,
air-cooling and air-conditioning apparatus, gas and electrical fixtures,
elevators, escalators, shades, awnings, screens, radiators, partitions, ducts,
compressors, vacuum cleaning systems, call systems, fire prevention and
extinguishing apparatus, fixtures, partitions, furniture, furnishings, machinery
and equipment used or procured for use in connection with the operation,
maintenance or protection of such buildings, structures and improvements, as
such, whether or not affixed to said real property, together with the following
described items of machinery and equipment to be used in connection with the
operation of the manufacturing and assembling business to be conducted upon said
real property:
General Plant Equipment
Panel Corrugators (2)
[STAMP]
Panel piercing system
Piercing machine (low volume)
panel band saw and shear
[STAMP]
