EXHIBIT 10.62
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF HUNTSVILLE
TO
FIRST ALABAMA BANK,
TRUSTEE
__________________________________________
FOURTH SUPPLEMENTAL INDENTURE
__________________________________________
Dated as of October 1, 1993
Prepared by:
Johnnie F. Vann
SIROTE & PERMUTT, P.C.
200 Clinton Avenue West
Suite 1000
P. O. Box 18248
Huntsville, Alabama 35804
THIS FOURTH SUPPLEMENTAL INDENTURE made and entered into as of October 1,
1993, by and 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 FIRST ALABAMA BANK, a national
banking association duly organized, existing and authorized to accept and
execute trusts of the character herein set out, with its principal office
located in the City of Huntsville, Alabama (the "Trustee"), as Trustee under the
Mortgage and Indenture of Trust dated as of November 1, 1988 and recorded in
Mortgage Book 1593 at page 713 ET SEQ. in the Office of the Judge of Probate of
Madison County, Alabama (the "Original Indenture") between the Board and the
Trustee, securing Bonds issued and to be issued as provided therein; and also
under that certain First Supplemental Mortgage and Indenture of Trust 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") between the Board and the Trustee; and also under that
certain Second Supplemental Mortgage and Indenture of Trust dated as of March 1,
1993 and recorded in Mortgage 1897 at page 435 ET SEQ. in the Office of the
Judge of Probate of Madison County, Alabama (the "Second Supplemental
Indenture") between the Board and the Trustee; and also under that certain Third
Supplemental Mortgage and Indenture of Trust 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") between
the Board and the Trustee.
W I T N E S S E T H
WHEREAS, the Board has been organized under, and is authorized by 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, Sections 11-54-80, ET SEQ., hereinafter referred to as the
"Act"), to acquire land and buildings and other improvements thereon and
machinery and equipment in order to promote industry, develop trade and further
the use of the agricultural products and natural resources of the State of
Alabama (the "State") by inducing manufacturing, industrial, commercial and
research enterprises to establish new projects in the State or to enlarge and
expand existing projects located in the State; and
WHEREAS, the Board is further authorized by the Act to issue industrial
development revenue bonds payable solely from the revenues and receipts derived
from the leasing or sale of the land and other improvements so constructed or
acquired; and
WHEREAS, the Board has made the necessary arrangements with MagneTek, Inc.,
a Delaware corporation (hereinafter called the "Lessee"), for acquiring,
expanding and further developing an existing industrial facility which was
leased by the Board to Burnett-Nickelson Investments ("BNI") pursuant to that
certain Lease Agreement dated as of November , 1988, between the Board and BNI
and recorded in Deed Book 725 at page 1127 in the Office of the
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Judge of Probate of Madison County, Alabama (the "Original Lease"), as further
amended by that certain Amendment to Lease Agreement dated as of February 1,
1993, between the Board and Lessee and recorded in Deed Book 808 at page 134 in
the Office of the Judge of Probate of Madison County, Alabama (the "First
Amended Lease") and as further amended by that certain Second Amendment to Lease
Agreement dated as of March 1, 1993 between the Board and Lessee and recorded in
Deed Book 810 at page 602 in the Office of the Judge of Probate of Madison
County, Alabama (the "Second Amended Lease") and as further amended by that
certain Third Amendment to Lease Agreement dated as of May 1, 1993 between the
Board and Lessee and recorded in Deed Book 813 at page 891 ET SEQ. in the Office
of the Judge of Probate of Madison County, Alabama (the "Third Amended
Lease")(the Original Lease, First Amended Lease, the Second Amended Lease, and
the Third Amended Lease hereinafter referred to as the "Lease"); and
WHEREAS, BNI assigned all of its right, title and interest under the
Original Lease to the Lessee pursuant to that certain Assignment of Lease and
Equity in Project dated January 19, 1993, between BNI, as assignor, and the
Lessee, as assignee, and recorded in Deed Book 806 at page 483 in the Office of
the Judge of Probate of Madison County, Alabama; and
WHEREAS, the execution and delivery of this Fourth Supplemental Indenture
(the "Fourth Supplemental Indenture") (the Original Indenture, First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture hereinafter
collectively referred to as the "Indenture") has been, in all respects, duly and
validly authorized by resolution adopted by the Board; and
WHEREAS, Sections 12.01 and 13.01 of the Original Indenture authorizes the
supplementing and or modification of the Indenture, with the prior written
consent of 70% in aggregate principal amount of the Bonds outstanding, for
purposes of identifying more precisely the real estate of equipment, furniture,
fixtures or other personal property comprising the Project or any substitutions
thereof or additions thereto; and
WHEREAS, the Board and the Lessee now desire to include additional real
property in the Project to further expand and further develop the existing
manufacturing facility which will be of the character and accomplish the
purposes provided in the Act, the Board has entered into a Fourth Amendment to
Lease Agreement dated as of October 1, 1993 (the Lease as further amended by
said Fourth Amendment to Lease Agreement is herein called the "Lease"), with the
Lessee to allow for the inclusion of additional real property to the Project to
further expand and further develop and lease the Project to the Lessee; and
WHEREAS, the Board and the Lessee have obtained the approval of 70% of the
holders of the outstanding bonds authorizing this Fourth Supplemental Indenture;
and
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WHEREAS, all acts, conditions and things required by the Constitution and
laws of the State of Alabama to happen, exist and be performed precedent to and
in the execution and delivery of this Fourth Supplemental Indenture have
happened, exist and have been performed as so required, in order to make the
Indenture a valid and binding trust indenture for the security of the Bonds in
accordance with its terms; and
WHEREAS, the Trustee has accepted the trusts created by this Fourth
Supplemental Indenture and in evidence thereof has joined in the execution
hereof; and
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises, of the acceptance by the Trustee of
the Trusts hereby created, and to secure the payment of all of the Bonds from
time to time outstanding under the Indenture and all indentures supplemental
thereto, including this Supplemental Indenture, according to their tenor and
effect, and to secure the performance and observance of all the covenants and
conditions set forth in the Original Indenture, the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture
and in this Fourth Supplemental Indenture, the Board has executed and delivered
this Fourth Supplemental Indenture; the Board does hereby grant, bargain, sell,
convey, grant a security interest in, and assign to the Trustee and unto its
successors in trust, and to its assigns forever for the securing of the
performance of the obligations of the Board hereinafter set forth:
I.
The real property and premises more particularly described on Exhibit "A"
attached hereto and made a part hereof, situated in the County of Madison and
State of Alabama;
II.
The Building and all other buildings and improvements now or hereafter
constructed or situated on the real property described on Exhibit "A" attached
hereto and made a part hereof, and all permits, easements, rights-of-way,
contracts, leases, privileges, immunities and hereditaments pertaining or
applicable thereto, and all fixtures now or hereafter installed on such real
property or in the Building or in any other building or improvement now or
hereafter located thereon and owned by the Board, together with all plans and
specifications and contracts with architects, contractors and others pertaining
to the construction, operation and maintenance thereof.
III.
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All building materials, machinery, equipment, fixtures, fencing, fittings,
and personal property of every kind and character used by the Board in the
construction of the industrial facility leased to the Lessee and to be located
upon the real property located in Madison County, Alabama as more particularly
described on Exhibit "A" hereto.
IV.
All rights, title and interest of the Board in the Lease, and all rentals,
revenues and receipts derived or to be derived thereunder (except for payments
for indemnification under Section 5.5 of the Lease);
V.
The moneys on deposit in the Construction Fund and the Bond Fund
established under the Indenture and held by the Trustee pursuant to the terms of
this Indenture and all earnings derived from such moneys;
VI.
Any and all other real property of every kind and nature from time to time
hereafter by delivery or by writing of any kind conveyed, mortgaged, pledged,
hypothecated, assigned or transferred, as and for additional security hereunder
by the Board or by anyone in its behalf, or with its written consent to the
Trustee which is hereby authorized to receive any and all such property at any
and all times and to hold and apply the same subject to the terms hereof;
VII.
All proceeds, rentals, income, profits, condemnation awards, insurance
proceeds, cash or non-cash, received from any of the foregoing described
properties or from insurance and tort claims of any of the foregoing described
properties.
SUBJECT, HOWEVER, to Permitted Encumbrances as defined in the Original
Indenture.
TO HAVE AND TO HOLD all the privileges and appurtenances hereby and
hereafter conveyed and assigned, or agreed or intended so to be, to the Trustee
and its respective successors in said Trust and assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and conditions herein set forth for
the equal and proportionate benefit, security and protection of the holders and
owners of the Bonds issued under and secured by the Indenture without privilege,
priority or distinction as to the
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lien or otherwise of any one Bond over any other Bond by reason or priority in
the issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Board, its successors or assigns shall pay
or cause to be paid, the principal, interest, and premium, if any, on the Bonds
due or to become due thereon, at the times and in the manner mentioned in the
Bonds, and shall cause the payments to be made into the Bond Fund as required
under Article 9 of the Original Indenture, and shall perform all of the
covenants and conditions required of it by the Indenture, and shall pay or cause
to be paid to the Trustee all sums of money due or to become due to it in
accordance with the terms and provisions of the Indenture, then upon such final
payments the Indenture and the rights hereby and thereby granted shall
terminate; otherwise, the Indenture to be and remain in full force and effect.
THIS FOURTH SUPPLEMENTAL INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and secured hereunder are to
be issued, authenticated and delivered, and all said property, rights and
interest, including, without limitation, the amounts hereby assigned and
pledged, are to be dealt with and disposed of subject to the terms of the
Indenture as supplemented.
ARTICLE I
DEFINITIONS
All words and phrases defined in Article 1 of the Lease and in the Original
Indenture shall have the same meaning in this Fourth Supplemental Indenture.
All terms used herein which are defined in the recitals hereto shall have the
meaning there given to them unless the context otherwise requires.
ARTICLE II
CONFIRMATION
Section 201. CONFIRMATION OF ORIGINAL INDENTURE. As supplemented by this
Fourth Supplemental Indenture, the Original Indenture is in all respects
ratified and confirmed, and the Original Indenture and this Fourth Supplemental
Indenture shall be read, taken and construed as one and the same instrument so
that all of the rights, remedies, terms and conditions, covenants and agreements
of the Original Indenture shall apply and remain in full force and effect with
respect to this Fourth Supplemental Indenture.
ARTICLE III
COVENANTS
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Section 301. PERFORMANCE OF COVENANTS. The Board covenants that it will
faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions set forth in this Fourth Supplemental Indenture and
in all of its proceedings pertaining hereto. The Board covenants that it is
duly authorized under the Constitution and laws of the State of Alabama,
including particularly and without limitation the Act and authorized hereby and
to execute this Fourth Supplemental Indenture, and the execution and delivery of
this Fourth Supplemental Indenture has been duly and effectively taken.
ARTICLE IV
CONSENTS
Section 401. TRUSTEE'S CONSENT. The Trustee hereby consents to the
execution and delivery of this Fourth Supplemental Indenture and of the Fourth
Amendment to Lease Agreement.
ARTICLE V
MISCELLANEOUS
Section 501. NOTICES. All notices required by Section 14.03 of the
Original Indenture should be sent to the Lessee at: MagneTek, Inc., 11150 Santa
Monica Blvd., Suite 1500, Los Angeles, CA 90025, Attention: Sam Miley.
IN WITNESS WHEREOF, The Industrial Development Board of the City of
Huntsville has caused these presents to be signed in its name and behalf by the
Chairman of its Board of Directors, and its corporate seal to be hereunto
affixed and attested by its Secretary, this ____ day of October, 1993, and First
Alabama Bank, has caused these presents to be signed in its name and on its
behalf as Trustee by its duly authorized officer and its official seal to be
affixed and the same to be attested,this _____ day of October, 1993, to evidence
its consent to this Fourth Supplemental Indenture, this ____ day of October,
1993, all as effective of the 1st day of October, 1993.
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF HUNTSVILLE
By:_______________________________________
ATTEST: Its: Chairman
____________________________________
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Its: Secretary
FIRST ALABAMA BANK, Trustee
By:_______________________________________
ATTEST: Its: ______________________________________
By: _________________________________
Its: _________________________________
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, Series 1993A and
Series 1993B Bondholder
By: ________________________________
Its: ________________________________
MAGNETEK, INC.
By: ________________________________
Its: ____________________________
STATE OF ALABAMA )
)
MADISON COUNTY )
I, the undersigned, a Notary Public in and for said County in said State,
do hereby certify that _________________________________, whose name as
Chairman of the Board of Directors of The Industrial Development Board of the
City of Huntsville is signed to the foregoing Fourth Supplemental Indenture, and
who is known to me, and known to be such officer, acknowledged before me on this
day that being informed of the contents of said Fourth
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Supplemental Indenture, he, in his capacity as such officer and with full
authority, executed the same voluntarily for and as the act of said Board.
Given under my hand and official seal this the _______ day of October,
1993.
____________________________________
Notary Public
My commission expires ________________
STATE OF ALABAMA )
)
MADISON COUNTY )
I, the undersigned, a Notary Public in and for said County in said State,
do hereby certify
that __________________________________, whose name as ______________________
of First Alabama Bank, a national banking association, is signed to the
foregoing Fourth Supplemental Indenture, and who is known to me, and known to
me to be such person, acknowledged before me on this day that, being informed
of the contents of the said Fourth Supplemental Indenture, (s)he as such
officer, and with full authority, executed the same voluntarily for and as the
act of the said Bank.
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 SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1993, BY AND BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE
AND FIRST ALABAMA BANK,
AS TRUSTEE
__________________________________________________________
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 01DEG.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 S0
1DEG.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
43DEG.56'06" W a distance of 70.71 feet; thence N 88DEG.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 66DEG.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 23DEG.01'47" W a distance of 109.54 feet; thence S 88DEG.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 46DEG.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
A-2