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EXHIBIT 10.1
ASSIGNMENT OF SUBLEASE
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This Assignment entered into by and between Champion International
Corporation, a New York corporation ("CIC"), Meadowcraft, Inc., an Alabama
corporation ("Meadowcraft"), Pinson Partners, an Alabama general partnership
composed of Xxxxxxx X. Xxxxxxxxx and T. Xxxxxx Xxxxxxx, ("Xxxxxx") and Xxx
Xxxxxx Company, Inc., a Delaware corporation ("Xxxxxx").
RECITALS:
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A. CIC is a party as Sublessor to that certain Sublease Agreement
dated January 31, 1977 by and between it and Birmingham Ornamental Iron
Company, Inc. as sublessee of certain property located in Tarrant City,
Alabama, a copy of which Sublease is attached hereto as Exhibit "A" (the
"Sublease").
B. Meadowcraft is now a party to the Sublease as the party having the
rights and obligations of the original sublessee, Birmingham Ornamental Iron
Company, Inc., an Alabama corporation.
C. Meadowcraft is owned by Xxxxxxx X. Xxxxxxxxx and T. Xxxxxx Xxxxxxx.
D. All of the parties hereto have agreed that upon the sale of
substantially all of the assets of Meadowcraft to Xxxxxx, the within Assignment
of the Sublease would be executed by the parties hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein the parties do hereby agree as follows:
1. Meadowcraft does hereby assign all of its right, title and interest
in the Sublease to Pinson and to Xxxxxx to be allocated between Pinson and
Xxxxxx in accordance with the terms and conditions herein provided.
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2. Pinson (and not Xxxxxx) shall hereafter have all the rights of the
Sublessee to acquire, pursuant to Section 16 of the Sublease, the leasehold
rights of CIC under that certain Project Lease dated March 1, 1968 between CIC
as assignee and the City of Tarrant City as amended (the "Project Lease");
provided that, in the event Pinson acquires the rights of CIC under the Project
Lease and thereafter defaults under said lease agreement, Xxxxxx shall have the
right, and shall be obligated to promptly cure such default, and thereafter
perform the obligations of CIC under the Project Lease.
3. Xxxxxx (and not Pinson) shall hereafter have all of the other
rights and obligations of the Sublessee under the Sublease, provided, however,
if Xxxxxx shall default under its obligations under the Sublease and such
default shall continue beyond any applicable grace period such that CIC would
have the right to terminate the Sublease, then before terminating the Sublease
CIC shall so inform Pinson in writing and Pinson shall have the right within 15
days to cure said default. Pinson shall, upon cure of such default, become
immediately vested with all of the rights and obligations of the Sublessee
under the Sublease. Xxxxxx does hereby accept such assignment of Meadowcraft's
interest (exclusive of Section 16) in the Sublease and does specifically assume
and agree to perform, observe and be bound by, all of the obligations of the
sublessee under the Sublease. Pinson does hereby guarantee the full and prompt
performance of Xxxxxx of all of its obligations as Sublessee under the
Sublease.
4. CIC does hereby consent to the said Assignment and does confirm and
agree that the Sublease as herein is in full force and effect according to its
terms.
In Witness Whereof, the Parties have signed and sealed this Assignment
to be effective as of July 1, 1987.
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CHAMPION INTERNATIONAL
CORPORATION,
a New York corporation
By/s/
------------------------------------
Its Sr. VP Finance
---------------------------------
ATTEST:
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MEADOWCRAFT, INC.,
an Alabama corporation
By/s/
------------------------------------
Its President
ATTEST:
/s/ T. Xxxxxx Xxxxxxx
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PINSON PARTNERS,
an Alabama general partnership
By/s/ T. Xxxxxx Xxxxxxx
-------------------------------------
T. Xxxxxx Xxxxxxx, general partner
WITNESS:
/s/
-----------------------------
By/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxx, general partner
WITNESS:
/s/
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XXX XXXXXX COMPANY, INC.,
A Delaware corporation
By/s/ X. Xxxxxxx Xxxxxx
------------------------------------
Its Chairman
ATTEST:
/s/
-----------------------------
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SUBLEASE
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This SUBLEASE by and between CHAMPION INTERNATIONAL CORPORATION, a New
York corporation, as Sublessor (hereinafter "CIC"), and BIRMINGHAM ORNAMENTAL
IRON COMPANY, INC., an Alabama corporation as Sublessee (hereinafter
"Sublessee"),
WITNESSETH
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WHEREAS, by virtue of an Assignment and Assumption Agreement dated
December 3, 1969, CIC is the assignee of the rights of Birmingham Ornamental
Iron Company, Inc. (hereinafter "BOI, INC." under a lease agreement dated as of
March 1, 1968, as amended by Supplemental Lease Agreements dated November 1,
1969, December 1, 1969 and September 21, 1971, between BOI, INC., and the City
of Tarrant City, a municipal corporation under the laws of the State of Alabama
(hereinafter the "Lease") copies of which are attached hereto as Exhibits A
through D; and
WHEREAS, pursuant to the terms and conditions of the Lease, CIC may
sublease the said real property subject to the Lease and the Indenture; and
WHEREAS, Sublessee desires to sublease said real property according to
the terms and conditions of the Sublease.
NOW, THEREFORE, the parties hereto agree as follows:
1. Sublease. CIC hereby subleases to Sublessee and Sublessee hereby
rents from CIC, subject to the Lease and the Indenture for and during the term
of this Sublease and upon and subject to the terms and conditions hereinafter
specified the property described in Exhibit "E" hereto.
2. Term. Unless sooner terminated, the term of this Sublease shall
commence on February 1st, 1977 and shall end on midnight August 29, 2000.
3. Rent. Sublessee agrees to make rental payments to CIC in the
amounts and during the periods set forth hereinafter, as follows:
(a) From the date of commencement of the term of this Sublease
until such date as CIC shall have paid $400,000 in basic rent
to the City of Tarrant City pursuant to the terms and conditions
of Section 5.2(a) of the lease, the rent shall
be.........................................$0.00
(b) From the date of commencement of the term of this Sublease,
Sublessee shall pay Supplemental Rent as specified in Section
5.2(b) of the Lease.
(c) From the date upon which CIC shall have paid the said
$400,000.00 (as set forth in subparagraph (a) hereof), Sublessee
shall pay rent to CIC according to the terms and conditions and in
the same amounts set forth in Section 5.2(a) of the Lease provided
that all such rent payments shall be made to CIC by the 10th of any
given month, notwithstanding anything to the contrary in Article V
of the Lease.
Any rent due hereunder that is not paid within three (3) days after the
due date shall bear interest from its due date until paid at the rate of 8% per
annum.
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4. Obligation of Sublessee Unconditional. The obligation of the
Sublessee to pay the Rent, to make all other payments provided for herein, and
to perform and observe the other agreements on its part herein contained, shall
be absolute and unconditional, irrespective of any rights of setoff, recoupment
or counterclaim it might otherwise have against CIC. The Sublessee will not
suspend or discontinue any such payments or fail to perform and observe any of
its other agreements contained herein or terminate this Sublease for any cause
including, without limiting the generality of the foregoing, any acts or
circumstances that may constitute an eviction or constructive eviction, failure
of consideration, commercial frustration of purpose, damage to or destruction
of the Subleased Premises or any part thereof, the taking by eminent domain of
title to or the right to temporary use of all or any part of the Subleased
premises, change in the tax or other laws of the Unitd States of America or the
State or any political subdivision of either thereof, or failure of CIC to
perform and observe any agreement or any duty, liability or obligation on its
part arising out of or connected with this Sublease whether express or
implied. Notwithstanding the foregoing, the Sublessee may, at its own cost and
expense and in its own name or in the name of CIC prosecute or defend any
action or proceeding or take any other action involving third persons which the
Sublessee deems reasonably necessary in order to secure or protect its rights
of occupancy and use its other rights hereunder.
5. Maintenance, Taxes, Removals and Releases
(a) Maintenance, Alterations and Improvements. During the Sublease
Term, the Sublease will at its own expense (a) keep the Subleased premises in
as reasonably safe condition as its operation permits, (b) keep the Plant and
other improvements located on the Subleased premises in good repair and in good
operating condition, and (c) make from time to time all repairs to and renewals
of the Plant as may be necessary to maintain the same as an efficient
manufacturing plant. The Sublessee may, at its own expense, make any
additions, alterations or improvements to the Subleased premises that it may
deem desirable for its business purposes and that do not adversely affect the
structural integrity of the Plant. All such additions, alterations or
improvements shall become part of the subleased premises, subject to this
sublease, the Lease and the Indenture. Any fixtures installed by the Sublessee
at the Plant without expense to CIC and not constituting a part of the Plant or
any replacements thereof or repairs thereto may be removed by the Sublessee at
any time and from time to time while it is not in default under the terms of
this Sublease; provided, that any damage to the Subleased premises occasioned
by such removal shall be repaired by the Sublessee at its own expense.
Sublessee may, also at its own expense, connect or "tie-in" utility and other
facilities located on the Subleased Premises to other facilities erected at its
expense on real property adjacent to the Subleased premises, but only if the
Sublessee furnished CIC a certificate of an Independent Engineer that such
connection and "tie-in" of facilities will not impair the operating unity or
the productive capacity of the Plant or its character as a manufacturing plant.
The Sublessee will cause each such connection or "tie-in" to be so effected as
to be subject to prompt disconnection at minimum expense.
The Sublessee will not permit any mechanics' or other liens to stand
against the Subleased premises for labor or materials furnished in connection
with any additions, alterations, improvements, repairs, renewals or connections
so made by it; provided, that the Sublessee shall first notify CIC of its
intention so to do, the
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Sublessee may at its own expense and in good faith contest any such mechanics'
or other liens and in the event of such contest may permit any such liens to
remain unsatisfied and undischarged during the period of such contest and any
appeal therefrom; provided further, that if CIC shall notify the Sublessee
that, in the opinion of CIC by nonpayment of any such items the lien of the
Indenture as to and of the Subleased premises or any part thereof shall be
subject to loss or forfeiture, then in that event the Sublessee shall promptly
pay and cause to be satisfied and discharged all such unpaid items.
(b) Taxes, Other Governmental Charges and Utility Charges. CIC and the
Sublessee acknowledge: (a) that under present law no part of the Subleased
premises is subject to ad valorem taxation by the State or by any political or
taxing subdivision thereof. If, however, such conditions should cease to
exist, the Sublessee agrees that it will pay, as the same respectively become
due (1) all taxes and governmental charges of any kind whatsoever that may be
lawfully assessed or levied against or with respect to the Subleased premises
or any part thereof, that may be or become secured by a lien thereof or on any
part thereof (including, without limiting the generality of the foregoing, all
taxes levied upon or with respect to the income or profits of CIC or the City
of Tarrant City from the Subleased premises which, if not paid, will become a
lien on the Subleased premises prior to or on a parity with the lien of the
indenture or a charge on the revenues and receipts therefrom prior to or on a
parity with the pledge and assignment thereof to be created and made in the
Indenture); (2) all utility and other charges incurred in the operation,
maintenance, use, occupancy and upkeep of the Subleased premises etc., and (2)
all assessments and charges at any time lawfully made by any governmental body
for public improvements that may be secured by a lien on the Subleased premises
or any part thereof; provided, that with respect to special assessments or
other government charges that may lawfully be paid in installments over a
period of years, the Sublessee shall be obligated to pay only such installments
as come due during the Sublease Term.
If the Sublessee shall first notify CIC of its intention so to do, the
Sublessee may, in good faith and at its own expense and in its own name and
behalf or in the name and behalf of CIC, contest any such taxes, assessments or
other charges and, in the event of any such contest, may permit the taxes,
assessments or other charges so contested to remain unpaid during the period of
such contest and any appeal therefrom unless CIC shall be of the opinion that
by such action the title of the City of Tarrant City to or the lien of the
Indenture on any part of the Subleased premises shall be materially endangered
or the Subleased premises or any part thereof shall become subject to loss or
forfeiture, in which event such taxes, assessments or charges shall be paid
prior to becoming delinquent. CIC will cooperate fully with the Sublessee in
any such contest.
6. (a) Insurance Required. The Sublessee shall take out and
continuously maintain in effect, throughout the Lease Term the following
classes and amounts of insurance, paying as the same become due all premiums
with respect thereto:
(1) Insurance to the extent of the full replacement value of
the Plant against loss or damage thereto by fire, with uniform
standard extended coverage endorsement limited only as may be provided
in the standard form of extended coverage endorsement at the time in
use in Alabama; and
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(2) In time of war declared by or against the United States
of America and in which it is a participant, such insurance to the extent
of the full replacement value of the Plant as may be available against
loss thereof or damage thereto by the risks and hazards of war.
(3) Basic insurance against liability for injury to or death of
persons or for damage to or loss of property arising out of or in any way
related to the Subleased premises, in amounts not less than $250,000 for
the death of or personal injury to any one person, $500,000 for the total
of the personal injuries to or deaths of two or more persons resulting
from any one accident, with such additional insurance of like kinds under
an "umbrella policy" that will be sufficient, when added to the basic
insurance of each type referred to in this paragraph, to afford total
insurance coverage of each such type of not less than $1,000,000;
(4) Insurance in amounts sufficient to cover all liability of
the Sublessee under the Workmen's Compensation Act of Alabama for deaths
of or injuries to persons arising out of any act or omission during the
preparation for or the construction, maintenance, replacement or
operation of the Subleased premises or any part thereof; and
(5) Business interruption insurance in such amount as may at
the time be customarily carried by companies of similar size and engaged
in like business as the Sublessee.
(b) Handling of Insurance Policies. All insurance required in this
Section shall be taken out and maintained in generally recognized responsible
insurance companies, qualified under the laws of the State to assume the
respective risks undertaken thereunder and acceptable to the CIC; and may be
written with deductible amounts comparable to those on similar policies carried
by other companies engaged in businesses similar in size, character and the
Subleased premises. All policies evidencing such insurance shall be deposited
with CIC; provided, that in lieu of such policies there may be so deposited a
certificate or certificates of the respective insurers attesting the fact that
such insurance is in force and effect. Prior to the expiration of any such
policy, the Sublessee shall cause to be furnished to CIC evidence satisfactory
to CIC that such policy has been renewed or replaced by another policy. The
Sublessee will furnish to CIC on March 1 of each year hereunder a certificate
made by some person (who may be an employee of the Sublessee), who has
knowledge of the facts and is acceptable to CIC, reciting that the amounts and
types and insurance evidenced by policies or certificates of insurance then on
deposit with CIC comply with the requirements hereof.
All policies evidencing the insurance required by paragraphs (1) and (2)
shall be carried in the names of the Trustee, the City of Tarrant City, CIC and
the Sublessee, as their respective interests may appear, and shall contain
standard mortgage clauses in favor of the Trustee providing that all payments
made with respect to each claim for loss thereunder of not more than $25,000
shall be paid to the Sublessee, and all payments made with respect to each claim
for loss thereunder in excess of $25,000 shall be made to the Trustee (or to
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CIC if none of the Bonds are outstanding); providing that all claim thereunder
for losses in any amount may be adjusted by the Sublessee with the insurers
subject, in the case of any claim for loss in excess of $25,000, to the approval
of CIC and the Trustee while any of the Bonds are outstanding, and thereafter to
the approval of CIC and the City of Tarrant City. So long as any of the Bonds
remain outstanding the Trustee alone shall have the right to receive the
proceeds of, and to collect and receipt for claims for losses in excess of
$25,000 under all policies of insurance required in Paragraphs (1) and (2).
All policies evidencing the insurance required in paragraph (3) shall
be carried in the names of CIC, the City of Tarrant City, the Sublessee and the
Trustee, as their respective interests may appear. All policies evidencing the
insurance required in paragraphs (4) and (5) shall be carried in the name of the
Sublessee.
(c) Application of Proceeds from Insurance Required in Paragraphs (1)
and (2); Sublessee's Obligations to Repair, Restore and Replace Property
Damaged. The gross proceeds of the insurance required in paragraphs (1) and
(2) shall be applied first for the payment of all expenses (including Counsel
fees and the charges for any Extraordinary Services or Extraordinary Services
or Extraordinary Expenses) incurred in the collection of such gross proceeds.
Subject to the provisions of Subsection 6(f), CIC will cause the Net Proceeds
thereafter remains to be applied as follows:
(i) The Net Proceeds of such insurance arising from any claim
for a loss not in excess of $25,000 shall be paid to the Sublessee and
shall be applied by the Sublessee as promptly as may be feasible toward
the repair, restoration, or replacement of the damaged or destroyed
property with respect to which the insurance proceeds were paid, or for
acquiring or constructing additions or improvements to or modifications
or changes in the Subleased premises, at the option of the Sublessee, who
shall report to CIC respecting such application upon completion thereof.
(ii) If any of the Bonds are outstanding at the time of the
payment of the insurance proceeds, the Net Proceeds of such insurance
arising from any claim for a loss in excess of $25,000 shall be paid to
the Trustee and shall be deposited in the Construction Fund and applied
as promptly as may be feasible for the purpose of paying the costs of
repairing, installing and replacing the property damaged or destroyed so
that it will be in substantially the same condition or character as it
existed immediately prior to the event that caused the damage or
destruction, with such changes, alterations and modifications in the
Plant as may be requested by the Sublessee and certified by an
Independent Engineer as not impairing the operating unity or the
productive capacity of the Plant or its character as a manufacturing
plant. Withdrawals of the Net Proceeds so paid into the Construction
Fund shall be effected in the same manner and upon compliance with the
applicable requirements contained in Section 4.3 of the Lease, governing
the disbursement of the moneys initially deposited in the Construction
Fund. If the Net Proceeds of the insurance referable to such damage or
destruction are in excess of the amount necessary to effect such repair,
restoration or replacement, the said excess shall be paid into the
Redemption Account until there shall be paid therein an amount
sufficient to redeem or pay all Outstanding Bonds on the earliest
practicable date or dates thereafter, and the balance if any shall be
paid to the Sublessee.
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(iii) If none of the Bonds are outstanding at the time of the
payment of the insurance proceeds, the Net Proceeds of such insurance
arising from any claim for a loss in excess of $25,000 shall be paid to
CIC and shall be applied by CIC as promptly as may be feasible for
payment of the costs of repairing, installing and replacing the property
damaged or destroyed so that it will be in substantially the same
condition or character as it existed immediately prior to the event that
caused the damage or destruction, with such changes, alterations and
modifications in the Plant as may be requested by the Sublessee and
certified by an Independent Engineer as not impairing the operating unity
or the productive capacity of the Plant or its character as a
manufacturing plant. If the Net Proceeds of the insurance referable to
such damage or destruction are in excess of the amount necessary to
effect such repair, restoration or replacement, the said excess shall be
paid to the Sublessee.
If at any time while any of the Bonds are outstanding the Net Proceeds of the
insurance referable to any such damage or destruction are less than the amount
necessary to effect the repair, restoration or replacement required in this
section, the Sublessee will promptly supply from its own funds such additional
moneys as may be necessary to effect such repair, restoration or replacement.
If, after being furnished with the necessary moneys (whether by the Sublessee,
from Net Proceeds of insurance, or from both sources,) CIC after reasonable
request so to do fails or refuses so to repair, restore or replace the property
damaged or destroyed, the Sublessee may, in the name of and on behalf of CIC,
perform the work of such repair, restoration or replacement, and in that event
CIC shall, promptly upon request by the Sublessee so to do, reimburse the
Sublessee for the costs and expenses so expended by the Sublessee, such
reimbursement to be made from the Net Proceeds of insurance referable to the
damage or destruction necessitating such repair, restoration and replacement,
to the extend such Net Proceeds are sufficient therefor.
(d) Application of the Proceeds from the Insurance Required in
Paragraph (3). The gross proceeds of the insurance required in Paragraph (3)
shall be applied first toward payment of the expenses (including Counsel fees
and the charges for any Extraordinary Services and Extraordinary Expenses)
incurred in the collection of such proceeds, and the Net Proceeds remaining
shall be applied toward extinguishment or satisfaction of the liability with
respect to which such insurance proceeds may be paid.
(e) Application of the Proceeds from the Insurance Required in
Paragraphs (4) & (5). The gross proceeds from the insurance required in
Paragraph (4) and Paragraph (5) shall be paid to the Sublessee.
(f) Conditions Under Which Repair, Restoration or Replacement of the
Plant Not Required. If the Plant is damaged or destroyed by fire or other
casualty to such extent that the Sublessee is entitled to exercise the option to
cause CIC to purchase and reconvey to Sublessee the Subleased premises as
granted to it in Section 15 hereinafter, and if the Sublessee elects to
exercise the said option, the Sublessee may elect not to cause the Plant to be
repaired, restored or replaced, and upon the closing of the purchase of the
Subleased premises pursuant to the exercise of such option the Net Proceeds of
the insurance shall be applied, and title to the Subleased premises shall be
conveyed, as is provided in Section 15 hereinafter.
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7. Provisions Respecting the Exercise of the Power of Eminent Domain.
(a) Continuance of This Agreement in the Event of Condemnation;
Sublessee's Obligation to Restore. If the Subleased premises, or any part
thereof, shall be taken under the exercise of the power of eminent domain by any
governmental body, or by any person, firm or corporation acting under
governmental authority, the Sublessee shall, subject to the provisions of
Subsection 7(b), be obligated to continue to pay the Rent without diminution and
to observe and perform all the other agreements on its part herein contained.
The gross proceeds received from any award made in such eminent domain
proceedings shall be paid to CIC if any of the Bonds are then outstanding who
shall pay over said award to the Trustee, otherwise they shall be paid to CIC.
Such gross proceeds shall be first applied for the payment of all expenses
(including Counsel fees and any charges for Extraordinary Services and
Extraordinary Expenses) incurred in the collection of such gross proceeds.
Subject to the provisions of Subsection 7(b), if any of the Bonds are
outstanding at the time of the payment of such award, CIC will cause the Net
Proceeds then remaining to be applied in one or more of the following ways as
shall be directed by the Sublessee:
(i) The said Net Proceeds shall be deposited in the
Construction Fund and applied as promptly as may be feasible for the
purpose of paying the costs of restoring and reconstituting the
Subleased premises to substantially the same condition and character in
which it existed immediately prior to the making of such award, so far as
such actions may be feasible, with such changes, alterations and
modifications in the Subleased premises as may be requested by the
Sublessee and certified by an Independent Engineer as not impairing the
operating unity or the productive capacity of the Plant or its character
as a manufacturing plant, including in that connection payment for and
the acquisition in the name of CIC of title to other property and
improvements suitable for the Sublessee's operations, which other
property and improvements shall be deemed a part of the Subleased
premises available for use and occupancy by the Sublessee, without
payment of any Rent other than that herein provided for to the same
extent as if such other property and improvements were specifically
described herein and demised hereby; provided, that such other property
and improvements shall be acquired by CIC subject to no liens or
encumbrances other than Permitted Encumbrances; and provided further,
that such other property and improvements shall by Supplemental Indenture
be conveyed to the Trustee on the terms and conditions contained in the
Indenture. If the Net Proceeds of the condemnation award so paid to the
Trustee by CIC are in excess of the amount necessary to effect such
restoration or reconstitution, the said excess shall be paid into the
Redemption Account until there shall have been paid therein an amount
sufficient to effect redemption and payment on the earliest practicable
date or dates thereafter of all of the Bonds then outstanding, and the
balance if any then remaining shall be paid to the Sublessee.
(ii) The said Net Proceeds shall be applied to the redemption of
Callable Bonds in their inverse numerical order on the earliest
practicable Redemption Date at a Redemption Price equal to the face value
of the Bonds to be redeemed and a premium equal to 5% of the said face
value; provided, that if less than all of
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the Bonds at the time outstanding are to be redeemed pursuant to the
provisions of this paragraph, an Independent Engineer shall have
certified (1) that the property taken by the power of eminent domain
is not essential to the Sublessee's operations then being conducted at
the Subleased premises or, if no operations are then being conducted
thereat, that the said property is not essential to the operations for
which the Subleased premises were designed or last modified, or (2)
that the Subleased premises have been restored to substantially the
same condition or character in which it existed immediately prior to
the making of such award, or (3) that other improvements to the
Subleased premises have been acquired which are suitable for the
Sublessee's operations then being conducted at the Subleased premises
or, if no operations are then being conducted at the Subleased
premises, that the said improvements are suitable for the operations
for which the Subleased premises were designed or last modified.
If none of the Bonds is outstanding at the time of the payment of the
condemnation award, the Net Proceeds from such award shall be paid to CIC and
applied by it as promptly as may be feasible for the purpose of paying the
costs of restoring and reconstituting the Subleased premises to substantially
the same condition of character in which it existed immediately prior to the
making of such award, so far as such action may be feasible, with such changes,
alterations and modifications in the Subleased premises as may be requested by
the Sublessee and certified by an Independent Engineer as not impairing the
operating unity or the productive capacity of the Plant or its character as a
manufacturing plant, including in that connection the payment for and
acquisition in the name of CIC of title to other property and improvements
suitable for the Sublessee's operations, which other property and improvements
shall be deemed a part of the Subleased premises available for use and
occupancy by the Sublessee, without payment of any Rent other than that herein
provided for, to the same extent as if such other property and improvements
were specifically described herein and demised hereby; provided, that such
other property and improvements shall be acquired by CIC subject to no liens or
encumbrances other than Permitted Encumbrances. If, after being furnished with
the necessary moneys (whether by the Sublessee, from Net Proceeds of the
condemnation award, or from both sources), CIC after reasonable request so to
do fails or refuses so to restore and reconstitute the Subleased premises, the
Sublessee may, in the name of and on behalf of CIC, perform the work of such
restoration and reconstitution and in that event CIC shall promptly upon
request by the Sublessee so to do, reimburse the Sublessee for the costs and
expenses so expended by the Sublessee, such reimbursement to be made from the
Net Proceeds of the condemnation award to the extent that such Net Proceeds are
sufficient therefor.
CIC shall cooperate fully with the Sublessee in the handling and
conduct of any prospective or pending condemnation proceedings with respect to
the Subleased premises or any part thereof and will, to the extent it may
lawfully do so, permit the Sublessee to litigate in any such proceedings in the
name and behalf of CIC. In no event will CIC voluntarily settle, or consent, to
the settlement of, any prospective or pending condemnation proceeding with
respect to the Subleased premises or any part thereof without the consent of
the Sublessee.
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(b) Conditions Under Which Restoration or Reconstitution of Subleased
Premises Not Required. If all or substantially all of the Subleased premises
should be taken in the exercise of the power of eminent domain to such extent
that the Sublessee is entitled to exercise the option to purchase the Subleased
premises granted to it in Subsection 15(b), and if the Sublessee elects to
exercise the said option, the Sublessee may elect not to restore or reconstitute
the Subleased premises and upon the closing of the purchase of the Subleased
premises pursuant to the exercise of such option the Net Proceeds of the
insurance shall be applied, and title to the Subleased premises shall be
conveyed, as is provided in Subsection 15(b).
(c) Condemnation of Right to Use the Subleased Premises for Limited
Period. If the use, for a limited period, of all or part of the Subleased
premises is taken by eminent domain proceedings, this sublease shall continue
in full force and effect; unless the Sublessee elects to exercise the option
granted in Section 15 to purchase the Subleased premises. If the period of such
taking expires on or before the expiration of the Lease Term, the Sublessee
shall be entitled to receive the entire condemnation award made therefor,
whether by way of damages, rent or otherwise, and as soon as may be feasible
after regaining possession of the Subleased premises restore it as nearly as
may be practicable to the condition in which it existed immediately prior to
such taking, with such changes, alterations and modifications as will not
impair the operating unity or the productive capacity of the Plant or its
character as a manufacturing plant. If the period of such taking expires after
the expiration of the Lease Term, the Sublessee shall be entitled to receive
that portion of the award allocable to the period from the date of such taking
up to the date of expiration of the Lease Term; and CIC shall be entitled to
the remainder thereof.
(d) Condemnation of Sublessee-Owned Property. The Sublessee shall be
entitled to any condemnation award or portion thereof made for damages to or
takings of its own property, as well as all other sums awarded as compensation
for the interest of the Sublessee in the part of the Subleased premises taken
as damages to the interest of the Sublessee in any part thereof not taken, but
there shall be paid directly by the Sublessee all Counsel's fees and other
expenses incurred in connection with the receipt of such award or sum or
portion thereof.
8. Special Covenants of the Lessee.
(a) General Covenants. The Sublessee will not do or permit anything to
be done on or about the Subleased premises that will affect, impair or
contravene any policies of insurance that may be carried on the Subleased
premises or any part thereof against loss or damage by fire, casualty or
otherwise. The Sublessee will, in the use of the Subleased premises and the
public ways abutting the same, comply with all lawful requirements of all
governmental bodies.
(b) No Warranty of Condition of Suitability by CIC. The Sublessee
acknowledges that it has made a thorough inspection of the Subleased premises,
that the improvements constructed thereon are acceptable to Sublessee,
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that the Subleased premises are suitable for the conduct of the operations
proposed to be conducted thereat by the Sublessee. In consequence thereof CIC
makes no warranty, either express or implied, as to the condition of the
Subleased premises or that it is suitable for the Sublessee's purposes or
needs. The Sublessee releases CIC from, agrees that CIC shall not be liable
for, and agrees to hold CIC harmless against, any loss or damage to property or
any injury to or death of any person that may be occasioned by any cause
whatsoever pertaining to the Subleased premises or the use thereof; provided,
that the indemnity in this sentence shall be effective only to the extent of
any loss that may be sustained by CIC in excess of the Net Proceeds received
from any insurance carried with respect to the loss sustained.
(c) Inspection of the Subleased Premises. CIC, the Trustee, the City of
Tarrant City and their or either of their duly authorized agents shall have the
right at all reasonable times to enter upon the Subleased premises and to
examine and inspect it, specifically including (without limiting the generality
of the foregoing) the right to show the Subleased premises to prospective
tenants and purchasers in the event the Sublessee shall be in default hereunder,
and in any event within a reasonable period prior to the expiration of the Lease
Term. CIC and its duly authorized agents shall have such rights of access to and
possession of the Subleased premises for the proper maintenance of the Subleased
premises in the event of failure by the Sublessee to perform its obligations
under Subsection 5(a) hereof.
(d) Sublessee to Maintain its Corporation Existence; Conditions Under
Which Exceptions Permitted. The Sublessee agrees that during the Lease Term it
will maintain its corporate existence, will not dissolve or otherwise dispose of
all or substantially all of its assets, and will not consolidate with or merge
into another corporation or permit one or more corporations to consolidate with
or merge into the Sublessee; provided, that the words "corporation" and
"corporations" as used in the foregoing restrictive agreement shall not be
construed as including any Affiliated Company; and provided further, that the
Sublessee may, without violating the agreement contained in this section, do or
perform any of the following:
(i) It may consolidate with or merge into another corporation,
or permit one or more other corporations to consolidate with or merge
into it, if (1) the corporation surviving such merger or resulting from
such consolidation (if it shall be one other than the Sublessee)
expressly assumes in writing all the obligations of the Sublessee
contained in this Sublease, and (2) there shall be filed with CIC a
letter or certificate by a firm of Certified Public Accountants (which
is of the size and type commonly referred to as nationally known
Certified Public Accountants and which is acceptable to the Trustee),
stating in substance that in the opinion of the said firm upon
consummation of such consolidation or merger the corporation surviving
the merger or resulting from such consolidation will have net worth and
net working capital not less than the net worth and the net working
capital of the Sublessee immediately prior to such merger or
consolidation.
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(ii) It may transfer to another corporation all or
substantially all of its assets as an entirety and thereafter dissolve
if (1) the corporation to which such transfer shall be made expressly
assumes in writing all the obligations of the Sublessee contained in
this Sublease, and (2) there shall be filed with CIC a letter or
certificate by a firm of Certified Public Accountants which is
acceptable to CIC stating in substance that in the opinion of such firm
upon consummation of such transfer the corporation to which such
transfer is proposed to be made will have net working capital and net
worth no less than the net working capital and net worth of the
Sublessee. The computations of net working capital and net worth
provided for in this sub-paragraph (b) shall be made on the basis of
audited balance sheets of the Sublessee and of the corporation to which
such transfer is proposed to be made as at the end of the respective
fiscal years most recently ended of the Sublessee and of said
corporation.
"Net working capital" and "net worth" as used in this section shall be computed
according to generally accepted accounting principles.
(e) Maintenance of Records and Furnishing of Copies of Quarterly
Statements, Annual Audits and Annual Stockholders' Reports. The Sublessee will
(a) maintain proper books of record and account in which it will make full and
correct entries of its business activities in accordance with generally
accepted accounting principles, (b) have quarterly balance sheets and income
and expense statements prepared in the form of and in accordance with the usual
practice of the Sublessee, showing in reasonable detail its financial condition
at the close of each quarterly period and its financial operations during such
period, and within thirty days after the close of each such period furnish a
copy thereof to CIC, the Trustee, and to the Original Purchaser (c) have an
annual audit made promptly as may be feasible following the end of each fiscal
year of the Sublessee, and (d) within 120 days after the end of each fiscal
year of the Sublessee, it will furnish to each of CIC, the Trustee, and to the
Original Purchaser (1) a certificate signed by the president or vice president
of the Sublessee stating that there has been no violation by the Sublessee of
the terms of this Agreement during the then preceding fiscal year of the
Sublessee or, in the event that there has been or is any such violation,
stating such violation as may have occurred and the steps taken, if any, to
correct such violation, (2) a balance sheet showing the financial condition of
the Sublessee and its consolidated subsidiaries (if any) at the close of such
fiscal year, and (3) a profit and loss statement showing the results of the
operations of the Sublessee and its consolidated subsidiaries (if any) for such
fiscal year. Such balance sheet and profit and loss statement shall in each
case be accompanied by a certificate or opinion of a Certified Public
Accountant in form acceptable to CIC and the Trustee.
15
(f) Qualification in Alabama. The Sublessee warrants and represents
that it is now duly qualified to do business in Alabama and will continuously
remain so qualified during the Lease Term; provided, that if, in accordance with
the permissive provisions of Subsection 8(d), the Sublessee should merge into or
with a corporation not organized and existing under the laws or with a
corporation not organized and existing under the laws of Alabama, or should
consolidate with one or more corporations under circumstances wherein the
consolidated corporation is not a corporation organized and existing under the
laws of Alabama, or should transfer all or substantially all of its assets to a
corporation not organized and existing under the laws of Alabama, it will cause
the corporation into or with which it may so merge, the corporation resulting
from such consolidation, or the corporation to which all or substantially all
its assets were transferred, as the case may be, to qualify to do business in
Alabama as a foreign corporation and to remain so qualified continuously during
the remainder of the Lease Term.
(g) Installation of Sublessee's Own Machinery and Equipment; Landlord's
Lien Thereon. The Sublessee may from time to time, in its sole discretion and at
its own expense, install or cause to be installed in the Plant and on the
Subleased premises, machinery and equipment of such type as it may deem
desirable. The machinery and equipment so installed shall remain the sole
property of the Sublessee or the other owner installing it, the title thereto
shall not vest in CIC as a result of such installation, and the said machinery
and equipment shall remain personal property and shall not be or become a part
of the property demised hereunder even though affixed to the Subleased premises
or the Plant in such wise that they would become a fixture except for the
provisions of this section. None of the said machinery or equipment shall be
subject to the Security Agreement and the Landlord lien created in Article 2 of
Chapter 2 of Title 31 of the Code of Alabama of 1940. Nothing contained in the
preceding provisions of this section shall prevent the Sublessee from
purchasing, after the execution of this Sublease, machinery and equipment on
conditional sale contract or lease sale contract, or subject to vendor's lien or
purchase money mortgage, as security for the unpaid portion of the purchase
price thereof, and each such conditional sale contract, lease sale contract,
vendor's lien and purchase money mortgage made by the Sublessee with respect to
machinery and equipment purchased by it under the provisions of this section
after the execution of the Sublease shall, if filed for record in the office of
the Judge of Probate of Jefferson County, Alabama, and in the office of the
Secretary of State of Alabama, and in the office of the Secretary of State of
Alabama, simultaneously with or prior to the installation in the Plant of the
machinery and equipment covered thereby be subordinate to the said landlord's
lien, Security Agreement and the Indenture. The Sublessee agrees to pay as due
the purchase price of and all costs and expenses incurred in the acquisition
and installation of any machinery and equipment installed in the Plant or on
the Subleased premises by it or pursuant to its authorization.
9. Events of Default Defined. The following shall be events of
default under this Sublease, and the happening of any of the following events
(including the continuance thereof for the time herein specified where any time
is so specified) shall constitute a default hereunder:
(a) Failure by the Sublessee to pay any installment of the
Rent at the maturity thereof and the continuance of such failure for a
period of three (3) days after the giving of notice to the Sublessee by
CIC;
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(b) Failure be the Sublessee to perform any of its agreements with
CIC herein contained (other than its agreement to pay the Rent) or to
perform any of its obligations under the Promissory Note or the
Security Agreement, and, with respect only to its performance under
this Sublease, continuance of such failure for a period of fifteen
(15) days after receipt by the Sublessee of written notice from CIC
specifying the agreement or agreements remaining unperformed and
requiring that the same be performed, unless the Sublessee shall be
proceeding diligently to cure such failure or to cause the same to be
cured; or
(c) The dissolution or liquidation of the Sublessee or the
filing by the Sublessee of a voluntary petition in bankruptcy or its
failure promptly to lift any execution, garnishment or attachment of
such size as will seriously impair its ability to carry on its
operations, the commission by it of any act of bankruptcy or its
adjudication as a bankrupt, an assignment by it for the benefit of
creditors, the entry by it into an agreement of composition with its
creditors, or the approval by a court of competent jurisdiction as
having been filed in good faith of a petition applicable to it in any
proceeding for its reorganization instituted under the provisions of
the general bankruptcy act, as amended, or under any similar act that
may hereafter be enacted; provided, that the term "dissolution or
liquidation of the Sublessee" as used in this subsection (c) shall not
be construed to include the termination of the corporate existence of
the Sublessee resulting from a merger into or a consolidation with
another corporation or the transfer of all or substantially all its
assets to another corporation under the conditions in Subsection 8(d)
permitting such actions.
10. Remedies on Default. Whenever any such event of default
shall have happened and shall be continuing, CIC may take any of the following
remedial steps after having given not less than five (5) days' written notice
to the Sublessee of its intention to take any such steps:
(a) CIC may reenter and take possession of the Subleased
premises, exclude the Sublessee from possession thereof, and rent the
same for the account of the Sublessee, holding the Sublessee liable
for the balance due hereunder;
(b) CIC may terminate this Sublease, exclude the Sublessee
from possession of the Subleased premises and lease the same for the
account of CIC holding the Sublessee liable for all Rent due up to the
date such lease is made for the account of CIC.
(c) CIC may, by written notice to the Sublessee, declare
immediately due and payable all installments of Rent payable hereunder,
whereupon the same shall become immediately due and payable; provided,
that the total amount of such Rent that may be so declared immediately
due and payable shall be that amount which, when added to the total of
the amounts then on deposit in the Construction Fund, will be
sufficient to pay, retire or redeem all Bonds then outstanding on the
earliest practicable date or dates thereafter on which, under their
terms, they may be paid or redeemed, including but without limitation
the premium, the principal and interest to mature until and on such
earliest practicable date or dates, the expenses of redemption, and
the Trustee's fees and charges;
17
(d) In the event any of the Bonds shall at the time be outstanding
and unpaid, CIC may have access to and inspect, examine and make copies of
the books and records and any and all accounts, data and income tax and
other tax returns of the Subleasee; and
(c) CIC may take whatever other action at law or in equity may appear
necessary or desirable to collect the Rent then due, or to enforce any
obligation or agreement of the Sublessee under this Sublease.
11. Advances by CIC. In the event the Sublessee fails to take out
or maintain the full insurance coverage required by this Sublease, or fails to
keep the Plant in as reasonably safe condition as its operating conditions
permit and in good repair and good operating condition, CIC, after first
notifying the Sublessee of any such failure on the part of the Sublessee, may
(but shall not be obligated to) take out the required policies of insurance and
pay the premiums on the same or make such repairs, renewals and replacements as
may be necessary to maintain the Plant in as reasonably safe condition as the
Subleasee's operations permit and in good repair and good operating condition;
all amounts so advanced by CIC shall become an additional obligation of the
Sublessee to CIC, as the case may be, and the Sublessee agrees to pay such
amounts promptly upon request therefor together with interest thereon at the
rate of 8% per annum from the date of advancement thereof. Any remedy herein
vested in CIC for the collection of all such amounts so advanced.
12. Agreement to Pay Attorney's fees. In the event CIC should
employ attorneys at law or incur other expenses in or about the collection of
Rent or the enforcement of any obligation, covenant, agreement, term or
condition of this Sublease, the Sublessee will on demand pay CIC reasonable
attorney's fees and other expenses so incurred by CIC.
13. No Remedy Exclusive. No remedy herein conferred upon or
reserved to CIC is intended to be exclusive of any other available remedy or
remedies, but each such remedy shall be cumulative and shall be in addition to
every other remedy given under this Sublease or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise any right or
power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof but any such right or power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle
CIC to exercise any remedy reserved to it in this Section, it shall not be
necessary to give any notice, other than such notice as is herein expressly
required.
14. No Additional Waiver Implied by One Waiver. In the event any
agreement contained in this Sublease should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
15. Option to Purchase Project Upon the Happening of Certain
Events. The Sublessee is hereby granted an option to cause CIC to purchase the
Subleased premises and to reconvey said Subleased premises to Sublessee upon
the happening of any one or more of the following events:
(a) If the Plant is destroyed by fire or other casualty so that (i)
in the discretion of the Sublessee the Subleased premises cannot reasonably be
restored within six (6) months to the condition thereof immediately preceding
such damage or destruction, (ii) in the sole discretion of the Sublessee it
cannot carry on its normal operations at the Subleased premises for a period of
six (6) months, or (iii) the cost of restoration of the Subleased premises would
be as much as $100,000.00; or
18
(b) if the title to, or temporary use of, all or
substantially all of the Subleased premises shall have been
taken under the exercise of the power of eminent domain,
including such taking as would result in the Sublessee being
prevented from carrying on its normal operations at the
Subleased premises for a period of six (6) months; or
(c) If (i) any changes should be made in the
Constitution of the State or in the Constitution of the United
States of America, or (ii) any legislation shall have been
enacted or any administrative action shall have been taken, or
(iii) any final decree, judgment or order of any court or
administrative body shall have been entered after the contest
thereof by CIC or the City of Tarrant City in good faith, and
upon the happening of any of the said events (A) this
Sublease shall have become void or unenforceable or impossible
or performance in accordance with the intent and purposes of the
parties as expressed herein, or (B) in the event that
legislation is enacted, a regulation is promulgated, or a
revenue ruling is issued that would affect the tax exempt
status of interest paid or to be paid on the Bonds.
To exercise the option granted in this section, the Sublessee (1) shall give
to CIC written notice of its election so to do at least sixty days prior to the
date the purchase and reconveyance to Sublessee is to be consummated, (2) shall
state in such notice the date on which the Sublessee desires that the purchase
be consummated, and (3) shall state in such notice the event or events referred
to in the foregoing paragraphs (a), (b) and (c) of this section on which it
relies in exercising such option. The Sublessee shall, upon request by CIC so
to do, furnish to CIC information to establish the existence of the event or
events entitling the Sublessee to exercise such option. The option granted in
this Section may be exercised notwithstanding the pendency of any proceeding
for the condemnation of the Subleased premises or any part thereof. At the
closing of CIC's purchase of the Subleased premises and prior to the
reconveyance by CIC to Sublessee of the Subleased premises pursuant to the
exercise of the option granted in this section, and as a condition thereto, the
Sublessee shall pay to CIC the following amounts:
A. the sum of $500,000.00;
B. an amount equal to the total basic rent CIC has paid
to the City of Tarrant City during the Lease Term;
C. the then remaining balance due under the Promissory
Note; plus
such sum, which, when added to the moneys then on deposit in the Construction
Fund and the Bond Fund and the Net Proceeds then remaining undisbursed that
were heretofore received by the Trustee CIC or the City of Tarrant City from
any insurance referable to damage or destruction of the Subleased property and
also from any condemnation award, will be sufficient (i) to pay or redeem all
of the Bonds and Coupons then outstanding which may have heretofore matured
(whether by maturity or call for redemption) and which have not been presented
for payment or redemption, (ii) to pay or redeem all of the Bonds and Coupons
on the earliest practicable date or dates thereafter on which under the terms
of the Bonds they may be paid or redeemed, (iii) to pay all interest that will
mature on the Bonds on and prior to such earliest practicable date or dates,
and (iv) to pay all of the unpaid fees and expenses of the Trustee which have
become or will become payable under the Indenture on and prior to such earliest
practicable date or dates, including such fee (if any) as may be payable in
effecting
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such redemption. CIC shall thereupon take all actions necessary to effect
payment and redemption of the Bonds on the earliest practicable date or dates
thereafter and to execute and deliver to the Sublessee a warranty deed
conveying the Subleased premises to the Sublessee, subject only to any
Permitted Encumbrances that may then be applicable, other than this Sublease,
the Lease and the Indenture, that were in existence on the date of this
Sublease, and any then existing liens or encumbrances suffered or created by
CIC prior to the date hereof and the Sublease with respect to the Subleased
premises.
16. Assignment of Lease. Sublessee is hereby granted an
option to acquire an assignment of the Lease upon the following terms and
conditions:
(a) The option provided in this Section 16 may be exercised
at any time during the first eleven (11) years of the
Lease Term;
(b) In order to exercise the option granted in this Section,
Sublessee shall notify CIC in writing of its intention
to exercise such option, at least thirty (30) days but
no more than sixty (60) days prior to the date of
the closing of the assignment as specified in such
notice.
(c) Upon compliance by the Sublessee with all of the
foregoing requirements of this section and upon payment
to CIC by Sublessee at the Closing Date of the
following amounts.
(i) the sum of $500,000.00;
(ii) an amount equal to the total basic rent CIC has
paid to the City of Tarrant City during the
Lease Term; and
(iii) the then remaining balance due under the
Promissory Note;
and provided the Sublessee is not in default under any
of the provisions of this Sublease and the Security
Agreement, CIC will deliver to Sublessee an
assignment of the Lease and Sublessee will assume all
the obligations of CIC thereunder, and this Sublease
shall terminate without further action of the parties
hereto.
17. Definitions. The following words and phrases and
others evidently intended as the equivalent thereof shall, in the absence of
clear implication herein to the contrary, be given the following respective
interpretations in this agreement:
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"Affiliated Company" means a corporation which owns or otherwise controls a
majority of the capital stock of the Sublessee, or a majority of the capital
stock of which is owned or otherwise controlled by the Sublessee.
"Basic Rent" means the basic rental payments provided for in Section 5.2(a) of
the lease.
"Bond Fund" means the Bond Principal and Interest Fund created in the Indenture
(hereinafter defined).
"Bonds" means the First Mortgage Industrial Development Revenue Bonds
(Birmingham Ornamental Iron Series) of the City of Tarrant City dated March 1,
1968.
"Callable Bonds" means those of the Bonds that are subject to redemption at the
option of the City of Tarrant City prior to their stated maturities.
"Certified Public Accountant" means an accountant qualified to practice as a
certified public accountant by the laws of any state in the United States of
America, or a firm of which such an accountant is a member, and who or which is
not a full time employee of any one or more of the Sublessor, the Sublessee or
an Affiliated Company.
"Construction Fund" means the fund created in the Indenture and referred to in
Section 4.3 of the Lease.
"Extraordinary Services and Extraordinary Expenses" means all services rendered
and all expenses incurred by the Trustee under the Indenture other than
Ordinary Services and Ordinary Expenses and which CIC is obliged to pay
pursuant to the terms of the Lease.
"Indenture" means the Mortgage Indenture and Deed of Trust between the City of
Tarrant City and Exchange Security Bank dated March 1, 1968, pursuant to which
the Bonds are authorized to be issued, and every supplemental Indenture in
pursuance thereof.
"Independent Engineer" means an engineer registered and qualified to practice
the profession of engineering under the laws of any state in the United States
of America, or a firm of which such engineer is a member, and who or which
shall be acceptable to CIC and is not a full time employee of either CIC, the
Sublessee or an Affiliated Company.
"Lease Term" means the duration of the Sublease created by this Sublease
Agreement and as is specified in Section 2 hereof.
"Net Proceeds" means the gross proceeds from the source with respect to which
that term is used remaining after payment of all expenses (including Attorneys'
Fees and any charges for Extraordinary Services and Extraordinary Expenses)
incurred in the collection of such gross proceeds.
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"Ordinary Services and Ordinary Expenses" means those services normally
rendered and those expenses normally incurred by a Trustee under instruments
similar to the Indenture, including all charges of the Trustee for payment of
the Bonds and Coupons presented to it for payment.
"Permitted Encumbrances" means as of any particular time, (a) liens for ad
valorem taxes not then delinquent, (b) utility, access and other easements and
rights of way, restrictions and exceptions that an Independent Engineer
certifies will not interfere with or impair the operations being conducted in
the Subleased premises (or, if no operations are being conducted therein, the
operations for which the Subleased premises were designed or last modified),
(c) this Sublease Agreement, (d) the Lease, (e) the Indenture, and (f) such
minor defects, irregularities, encumbrances and clouds on title as normally
exist with respect to property similar in character to the Subleased premises
and as do not, in the opinion of Counsel, materially impair the title to the
property affected thereby for the purposes for which such property was acquired
or is held by CIC.
"Promissory Note" means the promissory note issued by the Sublessee to CIC of
even date herewith in connection with the sale by CIC to Sublessee of CIC's
casual metal furniture and miscellaneous metals business.
"Redemption Account" means the Bond Redemption Account created in the Indenture
as a part of the Bond Fund.
"Redemption Date" means the date fixed for the redemption of Callable Bonds in
any notice of redemption of Callable Bonds published pursuant to the applicable
provisions of the Indenture.
"Redemption Price" means the price at which Callable Bonds called for
redemption may be redeemed on the Redemption Date.
"Rent" means the rental payments provided for in Section 3.
"Security Agreement" means the agreement entered into between the Sublessee and
CIC of even date whereby Sublessee grants a security interest in certain assets
of Sublessee to secure payment of the Promissory Note and other indebtedness of
Sublessee to CIC.
"Subleased premises" means the real property described in Exhibit "A" to this
Sublease Agreement.
"Supplemental Sublease Agreement" means an agreement supplemental hereto.
"Supplemental Indenture" means an agreement between the Sublessor and the
Trustee supplemental to the Indenture.
"Trustee" means the Trustee at the time serving as such under the Indenture.
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17. Miscellaneous
(a) Covenant of Quiet Enjoyment; Surrender of Project.
So long as the Sublessee performs and observes all of the agreements on its
part herein contained it shall peaceably and quietly have, hold and enjoy the
Subleased premises during the Lease Term, subject to all the terms and
provisions hereof. At the end of the Lease Term, or upon prior termination of
this Sublease, unless the Sublessee exercises its option under Section 15, the
Sublessee will surrender possession of the Subleased premises peaceably and
promptly to CIC in as good condition as at the commencement of the Lease Term,
loss by fire or other casualty covered by insurance, and ordinary wear, tear
and obsolescence only excepted.
(b) Grant of Easements for Utility Facilities. CIC will consent to
the grant of such utility, access and other similar easements over, across or
under the Subleased premises as shall be requested by the Sublessee and as are
necessary or convenient for the efficient operation of the Subleased premises;
provided, that each such easement shall be granted subject to the following
conditions: (a) the use of that portion of the Subleased premises with respect
to which the easement is granted shall be such as will not interfere with the
operation of the Subleased premises by any Sublessee thereof and (b) CIC shall
have the option of terminating any such easement at any time after the
expiration of the Lease Term, or after the termination of this Sublease
pursuant to the provisions hereof, or in the event of foreclosure of the
Indenture following default thereunder.
(c) This Sublease a Net Sublease. The Subleasee understands that it is
the intention hereof that this Sublease shall be a net Sublease, that the
Sublessee shall pay absolutely net during the Lease Term all Rent and all other
payments required to be made by the Sublessee hereunder and/or by the Lessee
under the Lease, free of any deductions and without abatement, deductions or
set-off, and that all Rent provided to be paid hereunder shall be available for
payment of debt service on the Bonds. This Sublease shall be construed to
effectuate such intent.
(d) Approval and Notices. All approvals and notices hereunder shall
be in writing. Any notice hereunder shall be sufficient if sent by United
States Registered or Certified Mail, postage prepaid, or by telegram with all
charges therefor prepaid, addressed as follows:
If such notice is intended to be given to CIC;
it shall be addressed to:
Champion International Corp.
Xxxxxxxxxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Real Estate Facilities
If such notice is intended to be given to the
Sublessee, it shall be addressed to:
Birmingham Ornamental Iron Co. Inc.
X.X. Xxx 0000
Xxxxxx Xxxxxx Xxxxxxx 00
Xxxxxxxxxx, Xxxxxxx 00000
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(e) Assignment and Subletting. Sublessee may not sublease or assign
all or a portion of the Subleased premises or any part of this Sublease,
without the prior written consent of CIC, which consent shall not be
unreasonable withheld by CIC, provided no such sublease or assignment shall
relieve the Sublessee of liability for payment of rent or other sums herein
provided or from the obligation to keep and be bound by the terms, conditions
and covenants of the Sublease.
(f) Severability. In the event any provision of this Sublease shall
be held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision
thereof.
IN WITNESS WHEREOF, the parties hereto have caused execution of this
Sublease and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, this 31 day of January, 1977.
ATTEST: CHAMPION INTERNATIONAL CORPORATION
/s/ By:/s/
-------------------------- ----------------------------
Assistant Secretary Vice President
ATTEST: BIRMINGHAM ORNAMENTAL IRON COMPANY,INC.
/s/ By:/s/
-------------------------- -----------------------------
Secretary Chairman
24
-21-
STATE OF CONNECTICUT
COUNTY OF FAIRFIELD
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxxxx X. Xxxxx whose name as Vice President of
Champion International Corporation, a Corporation, is signed to the foregoing
Sublease and who is known to me, acknowledged before me on this day that, being
informed of the contents of the above and foregoing Sublease, he, as such
officer and with full authority, executed the same voluntarily for and as the
act of said Corporation on the day the same bears date.
Given under my hand and official seal of office this 31st day of
January, 1977.
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Notary Public
My Commission Expires: March 31, 1980
--------------
(NOTARIAL SEAL)
STATE OF New York
---------
COUNTY OF New York
---------
I, Xxxxxxx X. Xxxxx, a Notary Public in and for the said county in the
said state, hereby certify that X. X. Xxxxxxxx whose name as CHAIRMAN of
____________________ a corporation organized under the laws of the State of
Alabama, is signed to the foregoing instrument and who is known to me,
acknowledged before me on this day that, being informed of the contents of the
within instrument, he, as such officer and with full authority, executed the
same voluntarily for and as the act of the said corporation.
Given under my hand and official seal this 7th day of June, 1997.
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Notary Public
My Commission Expires: March 31, 1979
---------------------------------------
(NOTARIAL SEAL)
