PARTIAL ASSIGNMENT OF LEASE AND EQUITY IN PROJECT
THIS ASSIGNMENT is made as of the 26th day of March, 1999 by and between
DISC MANUFACTURING, INC. (n/k/a Quixote Laser Corporation), a Delaware
corporation (the "Assignor"), and CINRAM, INC., a Delaware corporation, (the
"Assignee") and THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE,
an Alabama public corporation (the "Board").
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 and the Assignor did enter into that certain Amended
and Restated Lease Agreement dated as of September 1, 1987, and recorded in
Deed Book 705, pages 207 ET SEQ. in the Office of the Judge of Probate of
Madison County, Alabama (the "Original Lease"), as so amended by that certain
Amendment to Lease Agreement dated as of October 12, 1990, and recorded in
Deed Book 775, pages 1120 ET SEQ. in the Office of the Judge of Probate of
Madison County, Alabama (the "First Amendment"), as further amended by that
certain Series 1991 Amendment to Lease Agreement dated as of April 1, 1991,
and recorded in Deed Book 775, page 1130 ET SEQ. in the office of the Judge
of Probate of Madison County, Alabama (the "Second Amendment"), and as
further amended by that certain Series 1993 Amendment to Lease Agreement
dated as of March 1, 1993, and recorded in Deed Book 810, Page 191 ET SEQ. in
the Office of the Judge of Probate of Madison County, Alabama (the "Third
Amendment") (the Original Lease as so amended is hereto referred to as the
"Lease"), under which the Board leased to the Assignor the Project as
hereinafter defined.
WHEREAS, the Board has heretofore executed and delivered to the Trustee
thereunder (Regions Bank f/k/a First Alabama Bank, hereinafter referred to as
the "Trustee"), that certain Mortgage and Trust Indenture dated as of
September 1, 1987 (the "Original Indenture") recorded in Mortgage Book 1528,
page 1089 ET SEQ. in the Office of the Judge of Probate of Madison County,
Alabama, pursuant to which the Board issued its Industrial Development First
Mortgage Revenue Bonds (Disc Manufacturing, Inc. Project) Series 1987, in the
principal amount of $23,500,000 (the "Series 1987 Bonds") to finance the cost
of acquiring land as more particularly described therein and constructing and
equipping thereon an industrial facility (hereinafter referred to as the
"Original Project"); and
WHEREAS, to finance the cost of expanding the Original
Project by acquiring additional equipment and personal property (the "Project
Additions" and together with the Original Project is herein referred to as
the "Project"), the Board has heretofore executed and delivered to the
Trustee (i) that certain Supplemental Mortgage and Trust Indenture dated as
of April 1, 1991 (the "Supplemental Indenture") recorded in Mortgage Book
1742, page 686, ET SEQ. in the Office of the Judge of Probate of Madison
County, Alabama, pursuant to which the Board issued its Industrial
Development First Mortgage Revenue Bonds (Disc Manufacturing Inc. Project)
Series 1991, in the aggregate principal amount of $7,000,000 (the "Series
1991 Bonds") and (ii) that certain Second Supplemental Mortgage and Indenture
of Trust (the "Second Supplemental Indenture") recorded in Mortgage Book
1895, Page 852, ET SEQ. in the Office of the Judge of Probate of Madison
County, Alabama, pursuant to which the Board issued its First Mortgage
Industrial Revenue Bond (Disc Manufacturing, Inc. Project) Series 1993 in the
principal amount of $33,000,000 (the "Series 1993 Bonds") (the Original
Indenture as amended and supplemented by the Supplemental Indenture and the
Second Supplemental Indenture is herein referred to as the "Indenture"); and
WHEREAS, pursuant to that certain Partial Assignment of Lease and Equity
in Project dated March 27, 1997, between Assignor and Assignee (the "1997
Assignment"), Assignor assigned to Assignee Assignor's rights under the Lease
to the equipment and other personal property listed on Exhibit "A" of the
1997 Assignment and made a part hereof by reference (the "Huntsville
Equipment"), which equipment and personal property constitute a portion of
the Project; and
WHEREAS, in connection with the execution of the 1997 Assignment, the
Series 1987 Bond, the Series 1991 Bonds and the Series 1993 Bonds were paid
in full and the Trustee satisfied and released the Indenture as evidenced by
that certain Full Release of Mortgage and Trust Indenture, dated March 26,
1997, and recorded in the Office of the Judge of Probate of Madison County,
Alabama, in Mortgage Book 2266, at page 522 ET SEQ.; and
WHEREAS, the Assignor desires to assign to Assignee all of Assignor's
rights under the Lease to the real property located in Madison County,
Alabama more particularly described on Exhibit "A" hereto and all
improvements located thereon (said real property together with all
improvements thereon is herein called the "Building");
NOW, THEREFORE, in consideration of the premises, the assumption of the
Assignee of all of Assignor's obligations under the Lease arising after the
date of this Assignment with respect to the Building, and $10.00 in hand paid
by Assignee to Assignor, and other valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Board and Assignor and
Assignee hereby agree as follows:
1. The Assignor does hereby assign to Assignee (a) All right, title
and interest of Assignor under the Lease with respect to the Building and all
right, title and interest of Assignor in and to the Building, including but
not limited to the Assignor's option to purchase the Building after payment
of the Bonds as provided in Section 11.2 of the Lease; and (b) the Assignor's
right to any equity in the Building; all subject however to the reservation
by Assignor for its benefit and the benefit of its successors and/or assigns
of that certain easement and rights created and described in that certain
Non-Exclusive Easement Agreement recorded in Deed Book 893 Page 88 in the
Office of the Judge of Probate of Madison County, Alabama.
2. The Assignor hereby covenants and warrants that no event of default
currently exists under the Lease (with respect to the Building) and no event
has occurred which with the passage of time or the giving of notice would
constitute an event of default under the Lease (with respect to the
Building). The Assignee hereby covenants and warrants that it has not
operated or used the Building in any manner that would cause an event of
default to exist presently or to exist with the passage of time or the giving
of notice. The Assignor further covenants and warrants that it has full
power and authority to assign its interest in the Lease, that such interest
is free and clear of all liens or encumbrances, and that no consent or
approval is necessary for it to assign such interest other than the consent
of the Board.
3. The Assignee hereby assumes any and all obligations of the Assignor
under the Lease that relate to the Building and that arise after the date of
this Assignment. The Board hereby releases the Assignor from any and all
obligations under the Lease that relate to the Building and that arise after
the date of this Assignment and the Board agrees to look solely to the
Assignee to perform any such obligations and the Board agrees that the
Board's remedy for any such default shall be solely a suit against Assignee
for specific performance or for damages.
4. The Assignor, the Assignee and the Board hereby agree that if
requested by the Assignee, the parties hereto shall execute such instruments
as are necessary to remove the Building from the scope of the Lease and, at
the direction of the Assignee the Board shall either (i) lease the Building
to the Assignee on all the terms and conditions of the Lease, which are
incorporated herein by reference; provided, however, with respect to said new
lease the term Project as defined in the Lease shall mean the Building, or
(ii) convey the Building to the Assignee in accordance with Section 11.2 of
the Lease.
5. The Board and the Assignee agree that if on February 1,
2000 or on any February 1 thereafter the Assignee pays the Board the sum of
$278,000 plus the sum of $39,000 multiplied by the number of twelve month
periods that have elapsed since February 1, 2000 (the "Purchase Price
Modification Payment"), then the Board and the Assignee shall modify Section
9(b) of the Second Amendment and Section 9(b) of the Third Amendment to
delete the same in their entirety and substitute in lieu thereof an agreement
that in addition to the $55,000 payment to be made pursuant to Section 11.2
of the Original Lease, the Assignee shall pay as the purchase price described
in such Section 11.2 an amount equal to $1,000 multiplied by the number of
full 12 month periods that have elapsed since April 1, 1991 and the date the
Assignee exercises the purchase option contained in Section 11.2 of the
Original Lease. In the event the Assignee makes the Purchase Price
Modification Payment, the Board and the Assignee agree to execute, as soon as
practicable, a modification of the Lease to effectuate the provisions of this
paragraph 5.
6. The Primary Term of the Lease as outlined in Section 5.1 of the
Lease shall not change from the original term thereof and shall continue
until 11:59 p.m. on September 1, 2010 and the renewal term outlined in
Section 11.4 of the Lease shall not change and shall remain for the period of
September 1, 2010 until 11:59 p.m. on September 15, 2015.
7. The Board hereby consents to the Assignment of Assignor's interest
in the Building to Assignee and hereby states that to its knowledge no
default currently exists under the Lease, nor has any event occurred which
with the passage of time or the giving of notice would constitute a default
under the Lease.
IN WITNESS THEREOF, the Assignor has caused this Assignment to be
executed, attested, sealed and witnessed, all by the Assignor's duly
authorized officers, this 22nd day of March, 1999, the Assignee has caused
this Assignment to be executed, attested, sealed and witnessed, all by the
Assignee's duly authorized officers, this 23rd day of March, 1999, and the
Board has caused this Assignment to be executed, attested, sealed and
witnessed, all by the Board's duly authorized officers, this 25th day of
March, 1999, all effective as of March 26, 1999.
DISC MANUFACTURING, INC.
(n/k/a QUIXOTE LASER
CORPORATION, as Assignor
ATTEST:
By: /s/ Joan R. Riley By: /s/ Daniel P. Gorey
------------------------- -------------------------------
Its: Secretary Its: Vice President & Treasurer
------------------------- -------------------------------
[Assignee has executed this Assignment on the following page 5]
CINRAM INC., as Assignee
By: /s/ David Rubenstein
-------------------------------
Its: President
-------------------------------
[The Board has executed this Assignment on the following page 6]
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF HUNTSVILLE
ATTEST:
By: By: /s/ W. F. Sanders
------------------------- -------------------------------
Its: Its: Vice Chairman
------------------------- -------------------------------
STATE OF ILLINOIS )
)
COOK COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Daniel P. Gorey, whose name as Vice President &
Treasurer of DISC MANUFACTURING, INC. (n/k/a QUIXOTE LASER CORPORATION), a
Delaware corporation, is signed to the foregoing instrument, and who is known
to me, and known to me to be such officer, acknowledged before me on this day
that, being informed of the contents of the within instrument, he, as such
officer and will full authority, executed the same voluntarily for and as the
act of the said corporation.
Given under my hand and official seal of office, this the 22nd day of
March, 1999.
/s/ Wendy H. Cary
--------------------------------------
Notary Public
My Commission Expires: 3/29/00
STATE OF CALIFORNIA )
)
ORANGE COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that David Rubenstein, whose name as President of
CINRAM INC., a Delaware corporation, is signed to the foregoing instrument,
and who is known to me, and known to me to be such officer, acknowledged
before me on this day that, being informed of the contents of the within
instrument, he, as such officer and will full authority, executed the same
voluntarily for and as the act of the said corporation.
Given under my hand and official seal of office, this the 23rd day of
March, 1999.
/s/ Katherine R. Falcenda
---------------------------------
Notary Public
My Commission Expires: 6/25/99
STATE OF ALABAMA )
)
MADISON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that W. F. Sanders, whose name as Vice Chairman of The
Industrial Development Board of the City of Huntsville, an Alabama public
corporation, is signed to the foregoing instrument, and who is known to me,
and known to me to be such officer, acknowledged before me on this day that,
being informed of the contents of the within instrument, he, as such officer
and will full authority, executed the same voluntarily for and as the act of
the said corporation.
Given under my hand and official seal of office, this the 25th day of
March, 1999.
/s/ Johnnie F. Vann
--------------------------------------
Notary Public
My Commission Expires: 07/08/01
This Instrument prepared by:
Johnnie F. Vann
Sirote & Permutt, P.C.
200 Clinton Avenue
AmSouth Center, Suite 1000
P. O. Box 18248
Huntsville, Alabama 35804
"EXHIBIT "A"
All that part of Section 17, Township 3 South, Range 1 East in the City of
Huntsville, Madison County, Alabama, particularly described as beginning at
the point of intersection of the Southern right-of-way of Southern Railroad
with the Western right-of-way of Moores Mill Road; said point is further
described as being located South 00 degrees 19 minutes West 1561.48 feet and
North 76 degrees 16 minutes West 25.70 feet from the Northeast corner of said
Section 17;
Thence from the true point of beginning along the Western right-of-way of
Moores Mill Road South 00 degrees 19 minutes 00 seconds West 1157.00 feet to
the PC of a curve to the right having a radius of 834.42 feet;
Thence around the arc of said curve 377.32 feet, a chord bearing and distance
of South 13 degrees 16 minutes 19 seconds West 374.12 feet;
Thence continuing along the Western right-of-way of Moores Mill Road South 26
degrees 18 minutes 35 seconds West 936.79 feet;
Thence continuing along the Western right-of-way of Moores Mill Road North 76
degrees 49 minutes West 9.81 feet;
Thence continuing along the Western right-of-way of Moores Mill Road South 58
degrees 55 minutes 39 seconds West 165.06 feet to the Northern right-of-way
of Highway 72 East;
Thence along said right-of-way North 85 degrees 15 minutes 30 seconds West
1163.95 feet;
Thence North 00 degrees 21 minutes 49 seconds East 2787.94 feet to the
Southern right-of-way of Southern Railroad;
Thence along said right-of-way South 76 degrees 15 minutes 50 seconds East
1853.67 feet to the true point of beginning containing 102.18 acres, more or
less.
TERMINATION OF SUBLEASE
THIS TERMINATION is made as of the 26th day of March, 1999 by and
between DISC MANUFACTURING, INC. (n/k/a Quixote Laser Corporation), a
Delaware corporation ("DMI"), and CINRAM, INC., a Delaware corporation,
("Cinram").
W I T N E S S E T H
WHEREAS, DMI subleased to Cinram and Cinram subleased from DMI certain
real property located in Huntsville, Madison County, Alabama pursuant to that
certain Sublease dated March 27, 1997 (the "Sublease") between DMI and Cinram
for which a Memorandum of Lease was recorded March 27, 1997 in Deed Book 893,
Page 93 in the Office of the Judge of Probate of Madison County, Alabama; and
WHEREAS, the Sublease contained an option under which Cinram could
purchase DMI's leasehold estate in the real estate described in the Sublease;
and
WHEREAS, Simultaneously, herewith, Cinram has purchased said leasehold
estate from DMI; and
WHEREAS, it is the desire of the parties hereto to terminate the
Sublease.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, DMI and Cinram agree that the Sublease is hereby terminated and
of no further force and effect.
IN WITNESS THEREOF, DMI has caused this Termination to be executed,
attested, sealed and witnessed, all by DMI's duly authorized officers, this
22nd day of March, 1999, and Cinram has caused this Termination to be
executed, attested, sealed and witnessed, all by Cinram's duly authorized
officers, this 23rd day of March, 1999, all effective as of March 26, 1999.
DISC MANUFACTURING, INC.
(n/k/a QUIXOTE LASER
CORPORATION
ATTEST:
By: /s/ Joan R. Riley By: /s/ Daniel P. Gorey
-------------------------- -----------------------------
Its: Secretary Its: Vice President & Treasurer
-------------------------- -----------------------------
[Cinram has executed this Termination on the following page 2]
CINRAM INC.
By: /s/ David Rubenstein
-----------------------------
Its: President
-----------------------------
STATE OF CALIFORNIA )
)
ORANGE COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that David Rubenstein, whose name as PRESIDENT of
CINRAM INC., a Delaware corporation, is signed to the foregoing instrument,
and who is known to me, and known to me to be such officer, acknowledged
before me on this day that, being informed of the contents of the within
instrument, he, as such officer and will full authority, executed the same
voluntarily for and as the act of the said corporation.
Given under my hand and official seal of office, this the 23rd day of
March, 1999.
/s/ Katherine R. Falcenda
-------------------------------------
Notary Public
My Commission Expires: 6/25/99
STATE OF ILLINOIS )
)
COOK COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Daniel P. Gorey, whose name as Vice President &
Treasurer of DISC MANUFACTURING, INC. (n/k/a QUIXOTE LASER CORPORATION), a
Delaware corporation, is signed to the foregoing instrument, and who is known
to me, and known to me to be such officer, acknowledged before me on this day
that, being informed of the contents of the within instrument, he, as such
officer and will full authority, executed the same voluntarily for and as the
act of the said corporation.
Given under my hand and official seal of office, this the 22nd day of
March, 1999.
/s/ Wendy C. Cary
-----------------------------------
Notary Public
My Commission Expires: 3/29/00
This Instrument prepared by:
Johnnie F. Vann
Sirote & Permutt, P.C.
200 Clinton Avenue
AmSouth Center, Suite 1000
P. O. Box 18248
Huntsville, Alabama 35804