EXHIBIT 10.59
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF HUNTSVILLE
AND
MAGNETEK, INC.
________________________________________
FOURTH AMENDMENT TO LEASE AGREEMENT
________________________________________
Prepared by:
Johnnie F. Vann
SIROTE & PERMUTT, P.C.
200 Clinton Avenue West
Suite 1000
P. O. Box 18248
Huntsville, Alabama 35804
DATED AS OF OCTOBER 1, 1993
THIS FOURTH AMENDMENT TO LEASE AGREEMENT dated as of October 1, 1993 (the
"Fourth Amendment to Lease Agreement") supplementing and amending that certain
Lease Agreement dated as of November 1, 1988, recorded in Deed Book 7250, page
1127 ET SEQ. in the Office of the Judge of Probate of Madison County, Alabama
(the "Lease"), between THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF
HUNTSVILLE, a public corporation duly organized and existing under the
Constitution and laws of the State of Alabama (the "Board"), and BURNETT-
NICKELSON INVESTMENTS which transferred all of its right, title and interest
under the Lease to MAGNETEK, INC., a Delaware corporation (the "Lessee"),
pursuant to that certain Assignment of Lease and Equity in Project dated January
19, 1993, recorded in Deed Book 806, page 483 ET SEQ. in the Office of the Judge
of Probate of Madison County, Alabama, which Original Lease was amended by that
certain Amendment to Lease Agreement dated as of February 1, 1993, recorded in
Deed Book 808, page 134 ET SEQ. in the Office of the Judge of Probate of Madison
County, Alabama (the "Amendment to Lease Agreement"), between the Board and the
Lessee, and which was further amended by that certain Second Amendment to Lease
Agreement dated as of March 1, 1993 recorded in Deed Book 810, page 602 ET SEQ.
in the Office of the Judge of Probate of Madison County, Alabama (the "Second
Amendment to Lease Agreement"), between the Board and the Lessee, and which was
further amended by that certain Third Amendment to Lease Agreement dated as of
May 1, 1993, recorded in Deed Book 813 at page 891 ET SEQ. in the Office of the
Judge of Probate of Madison County, Alabama (the "Third Amendment to Lease
Agreement") between the Board and Lessee (the Original Lease, Amendment to Lease
Agreement, the Second Amendment to Lease Agreement, and the Third Amendment to
Lease Agreement are hereinafter referred to as the "Lease").
W I T N E S S E T H:
WHEREAS, the Board was organized pursuant to the provisions of Act No. 648
adopted at the 1949 Regular Session of the Legislature of the State of Alabama,
approved September 19, 1949, as amended (said Act being codified as CODE OF
ALABAMA 1975, Section 11-54-80, ET SEQ., and hereinafter referred to as the
"Act"); and
WHEREAS, the Board has heretofore executed and delivered to First Alabama
Bank, as trustee (hereinafter referred to as the "Trustee"), that certain
Mortgage and Indenture of Trust dated as of November 1, 1988, recorded in
Mortgage Book 1593, page 713 ET SEQ. in the Office of the Judge of Probate of
Madison County, Alabama (hereinafter referred to as the "Original Indenture")
pursuant to which the Board issued its First Mortgage Industrial Revenue Bonds
(Burnett-Nickelson Project) Series 1988 in the principal amount of $1,400,000
(the "Original Bond") to finance the cost of acquiring real property and
constructing and equipping thereon an industrial facility (the said real
property, equipment and improvements being hereinafter referred to as the
"Project"); and
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WHEREAS, the Board refunded the Original Bond with part of the proceeds of
its Series 1993A Bond issued pursuant to that certain First Supplemental
Mortgage and Indenture of Trust between the Board and the Trustee dated as of
February 1, 1993 and recorded in Mortgage Book 1885 at page 138 ET SEQ. in the
Office of the Judge of Probate of Madison County, Alabama (the "First
Supplemental Indenture"); and
WHEREAS, the Board issued additional Bonds with the proceeds of its Series
1993B Bond issued pursuant to that certain Second Supplemental Mortgage and
Indenture of Trust between the Board and the Trustee dated as of March 1, 1993
and recorded in Mortgage Book 1897 at page 435 ET SEQ. in the Office of the
Judge of Probate of Madison County, Alabama (the "Second Supplemental
Indenture") and;
WHEREAS, the Board amended and supplemented the Original Indenture by a
Third Supplemental Mortgage and Indenture of Trust between the Board and the
Trustee dated as of May 1, 1993 and recorded in Mortgage Book 1916 at page 717
ET SEQ. in the Office of the Judge of Probate of Madison County, Alabama (the
"Third Supplemental Indenture") (the Original Indenture, the First Supplemental
Indenture and the Second Supplemental Indenture hereinafter referred to as the
"Indenture").
WHEREAS, the Board is leasing the Project to the Lessee under and pursuant
to the Lease; and
WHEREAS, the Board and the Lessee now desire that the Lease be Amended to
include additional real property in the Project and for the expansion and
further developing the Project as provided in the Act; and
WHEREAS, the execution and delivery of this Fourth Amendment to Lease
Agreement has been duly approved by the Board of Directors of the Board;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth and the sum of Ten Dollars ($10.00) paid to the
Board by the Lessee, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto formally covenant, agree and bind themselves as
follows:
Section 1. DEFINITIONS. In addition to the terms defined in the preamble
hereto, terms defined in the Lease shall have the same meaning when used herein.
Section 2. REPRESENTATIONS BY THE BOARD. The Board represents and
warrants that:
(a) Under the provisions of the Act, the Board has the power to enter
into the transactions contemplated by the Lease as amended by this Fourth
Amendment to Lease Agreement and to carry out its obligations hereunder and
the Board is not in default
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under the Lease or the Indenture or otherwise under any of the laws of the
State of Alabama.
(b) The Board of Directors of the Board has duly authorized the
execution and delivery of this Fourth Amendment to Lease Agreement, the
Fourth Supplemental Indenture and all other instruments and documents
previously or contemporaneously executed and delivered by the Board in
connection with the addition of the real property to the Project.
Section 3. REPRESENTATIONS BY THE LESSEE. The Lessee represents and
warrants that:
(a) Neither the execution and delivery of this Fourth Amendment to
Lease Agreement, nor the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
of this Fourth Amendment to Lease Agreement will conflict with or
constitute a breach of or default under any agreement or instrument to
which the Lessee is a party or by which the Lessee is bound.
(b) No event of default or any event which, with the giving of notice
or the lapse of time, or both, would constitute an event of default under
Section 10.1 of the Lease has occurred or is occurring.
(c) The Board of Directors of the Lessee has duly authorized the
execution and delivery of this Fourth Amendment to Lease Agreement and all
other instruments and documents previously or contemporaneously executed
and delivered by the Lessee in connection with the addition of the real
property to the Project.
Section 4. ACKNOWLEDGEMENTS CONCERNING AD VALOREM TAXES.
The Lessee and the Board acknowledge that under present law the Project (as
it exists prior to the addition of the real property pursuant to this Fourth
Amendment to Lease Agreement) is entirely exempt from ad valorem taxes levied by
the City because the record title holder of the Project is the Board. The
Lessee and the Board acknowledge that under present law the real estate added by
this Lease Agreement is exempt from non-educational ad valorem taxes levied by
the City because the record title holder of the Project is the Board.
Section 5. DEMISE OF REAL PROPERTY. The Board hereby, in confirmation of
the Lease, demises and leases to the Lessee, and the Lessee leases from the
Board, the Leased Land which shall include, but is not limited to, the property
and the improvements thereon and to be constructed thereon, more particularly
described in Exhibit "A" hereto, as well as the property more particularly
described in Exhibit "A" to the Lease.
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Section 6. ZONING AND ENVIRONMENTAL LAWS. Lessee covenants and warrants
that all applicable zoning laws, ordinances and regulations affecting the
Project permit the use and occupancy of the Project by the Lessee, and Lessee
further covenants and warrants to comply with all environmental and ecological
laws, ordinances and regulations affecting the Project and to indemnify Board
and Trustee from any and all losses, damages, and liability resulting from
Lessee's failure to comply with such environmental and ecological laws,
ordinances and regulations.
Section 7. NOTICES. All notices required by Section 12.5 of the Lease
should be sent to the Lessee at: MagneTek, Inc., 11150 Santa Monica Blvd., Los
Angeles, CA 90025, Attention: Sam Miley.
Section 8. CONFIRMATION. As amended by this Fourth Amendment to Lease
Agreement, the Lease is, in all respects, ratified and confirmed, and the Lease
and this Fourth Amendment to Lease Agreement shall be read, taken and construed
as one and the same instrument so that all of the rights, remedies, terms,
conditions, covenants and agreements of the Lease shall apply and remain in full
force and effect with respect to this Fourth Amendment to Lease Agreement.
IN WITNESS WHEREOF, the Lessee has caused this Fourth Amendment to Lease
Agreement to be executed in its name by its duly authorized officers this the
___ day of October, 1993, and the Board has caused this Fourth Amendment to
Lease Agreement to be executed in its name and its corporate seal to be hereunto
affixed, attested and witnessed by its duly authorized officers, this the ___
day of October, 1993 all effective as of the date first above written.
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF HUNTSVILLE
By:
---------------------------------------
Its: Chairman
ATTEST:
- - ------------------------------
Its: Secretary
[S E A L]
MAGNETEK, INC.
By:
----------------------------------------
Its:
----------------------------------------
ATTEST:
By:
---------------------------
Its:
---------------------------
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CONSENT
First Alabama Bank, as Holder of 70% of the outstanding Series 1988 bonds
as defined in the Indenture, and MagneTek, Inc., hereby consent to the above
Fourth Supplemental Indenture.
FIRST ALABAMA BANK,
as Series 1988, 1993A and
1993B Bondholder
By:
--------------------------------
Its:
----------------------------
FIRST ALABAMA BANK, as Trustee
By:
--------------------------------
Its:
----------------------------
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ACKNOWLEDGMENT OF LESSOR
STATE OF ALABAMA )
)
COUNTY OF MADISON )
I, the undersigned, a Notary Public in and for said County in said State,
hereby certify that ___________________________________, whose name as Chairman
of The Industrial Development Board of the City of Huntsville a public
corporation, is signed to the foregoing Fourth Amendment to Lease Agreement and
who is known to me, acknowledged before me on this day that, being informed of
the contents of this Fourth Amendment to Lease Agreement, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and official seal this the _______ day of October,
1993.
------------------------------------
Notary Public
My commission expires
----------------
ACKNOWLEDGMENT OF LESSEE
STATE OF ______________ )
)
COUNTY OF ______________ )
I, the undersigned, a Notary Public in and for said County in said State,
hereby certify that _________________________ as _________________________ of
MagneTek, Inc., a Delaware corporation, whose name is signed to the foregoing
Fourth Amendment to Lease Agreement and who is known to me, acknowledged before
me on this day that, being informed of the contents of this Fourth Amendment to
Lease Agreement, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and official seal this the ______ day of October, 1993.
------------------------------------
Notary Public
My commission expires
----------------
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EXHIBIT "A"
TO THAT CERTAIN FOURTH AMENDMENT TO LEASE AGREEMENT
BY AND BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE
AND
MAGNETEK, INC.
__________________________________________________________
All that part of the northeast quarter of Section 17, Township 5 South, Range 2
West, Madison County, Alabama and particularly described as:
Commencing at the northeast corner of Lot 2, Block 1 of Gateway Industrial Park
as recorded in Plat Book 19, Page 5 in the Office of the Judge of the Probate
Court of Madison County, Alabama; thence S 01 DEG.03'54" E along the west right-
of-way line of Wall-Triana Highway and the east boundary of said Lot 2 a
distance of 585.00 feet to the point of beginning; thence continue S 01
DEG.03'54" E along the said west right-of-way of Wall-Triana Highway a distance
of 160.00 feet; thence northwesterly a distance of 78.54 feet along a curve to
the left which has a radius of 50.00 feet and a chord bearing N 43 DEG.56'06" W
a distance of 70.71 feet; thence N 88 DEG.56'06" W a distance of 955.00 feet to
the beginning of a curve to the left; thence southwesterly a distance of 100.93
feet along said curve to the left which has a radius of 120.00 feet and a chord
bearing S 66 DEG.58'13" W a distance of 97.98 feet to the beginning of a curve
to the right; thence a distance of 238.96 feet along said curve to the right
which has a radius of 60.00 feet and a chord bearing N 23 DEG.01'47" W a
distance of 109.54 feet; thence S 88 DEG.56'06" E a distance of 1089.16 feet to
the beginning of a curve to the left; thence northeasterly a distance of 78.54
feet along said curve to the left which has a radius of 50.00 feet and which has
a chord bearing N 46 DEG.03'54" E a distance of 70.71 feet to the point of
beginning and containing 1.804 acres, more or less.
ALSO KNOWN AS: East Gate Drive
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