EXHIBIT 4.25
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INDUSTRIAL BUILDING LEASE
by and between
FORTRA FIBER-CEMENT L.L.C.,
a Delaware limited liability company,
as Landlord,
and
JAMES HARDIE BUILDING PRODUCTS, INC.,
a Nevada corporation,
as Tenant
OCTOBER 6, 2000
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TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE 1 GRANT OF LEASE; PREMISES ................................ 1
ARTICLE 2 TERM; POSSESSION ........................................ 1
Section 2.1. Term .................................................... 1
Section 2.2. Condition of Premises ................................... 2
Section 2.3. Equipment, Raw Materials and Other Personal Property .... 2
Section 2.4. Assignment of Contracts and Permits ..................... 3
ARTICLE 3 BASE RENT ............................................... 4
Section 3.1. Rent .................................................... 4
Section 3.2. Manner of Payment ....................................... 5
Section 3.3. Late Charge.............................................. 5
ARTICLE 4 ADDITIONAL RENT; IMPOSITIONS ............................ 5
Section 4.1. Obligation to Pay Impositions ........................... 5
Section 4.2. Payment by Tenant ....................................... 5
Section 4.3. Alternative Taxes ....................................... 6
Section 4.4. Evidence of Payment ..................................... 6
Section 4.5. Right to Contest ........................................ 6
Section 4.6. Representations and Warranties........................... 7
Section 4.7. Survival ................................................ 7
Section 4.8. Personal Property Taxes and Rent Taxes .................. 7
Section 4.9. Additional Rent ......................................... 8
ARTICLE 5 GUARANTIES .............................................. 8
Section 5.1. Tenant's Guaranty ....................................... 8
Section 5.2. Landlord's Guaranty ..................................... 9
ARTICLE 6 USE OF PREMISES ......................................... 9
Section 6.1. Permitted Uses .......................................... 9
Section 6.2. Prohibited Uses ......................................... 9
Section 6.3. Adverse Possession ...................................... 9
Section 6.4. Use of Parking Areas .................................... 10
Section 6.5. Compliance with Bond Documents .......................... 10
ARTICLE 7 UTILITIES AND SERVICES .................................. 11
Section 7.1. Utilities and Services .................................. 11
Section 7.2. Failure to Furnish Utilities or Services ................ 11
Section 7.3. Regulations Regarding Utilities and Services ............ 11
ARTICLE 8 CONDITION AND CARE OF PREMISES .......................... 11
Section 8.1. Condition of the Premises ............................... 11
Section 8.2. Tenant Obligations ...................................... 11
Section 8.3. Landlord Obligations .................................... 12
Section 8.4. Compliance with Laws, Rules and Regulations ............. 12
ARTICLE 9 RETURN OF PREMISES....................................... 13
Section 9.1. Surrender of Possession ................................. 13
Section 9.2. Installations and Additions ............................. 13
Section 9.3. Trade Fixtures and Personal Property .................... 13
Section 9.4. Survival ................................................ 14
ARTICLE 10 HOLDING OVER ............................................ 14
ARTICLE 11 [INTENTIONALLY DELETED] ................................. 15
ARTICLE 12 RIGHTS RESERVED TO LANDLORD.............................. 15
ARTICLE 13 ALTERATIONS ............................................. 15
ARTICLE 14 ASSIGNMENT AND SUBLETTING ............................... 16
Section 14.1. Assignment and Subletting ............................... 16
Section 14.2. Rentals Based on Net Income ............................. 17
Section 14.3. Tenant to Remain Obligated .............................. 17
Section 14.4. Landlord's Consent....................................... 17
Section 14.5. Assignee to Assume Obligations .......................... 18
Section 14.6. Indirect Assignments .................................... 18
ARTICLE 15 WAIVER OF CERTAIN CLAIMS; INDEMNITY...................... 18
Section 15.1. Waiver of Certain Claims; Indemnity by Tenant ........... 18
Section 15.2. Damage Caused by Tenant's Negligence .................... 19
Section 15.3. Tenant Responsible for Personal Property ................ 19
Section 15.4. Indemnification ......................................... 19
Section 15.5. Survival ................................................ 20
ARTICLE 16 DAMAGE OR DESTRUCTION BY CASUALTY ....................... 20
ARTICLE 17 EMINENT DOMAIN ......................... ................ 20
ARTICLE 18 EVENT OF DEFAULT ........................................ 21
Section 18.1. Events of Default ....................................... 21
Section 18.2. Rights and Remedies of Landlord ................ ........ 22
Section 18.3. Right to Re-Enter ....................................... 22
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Section 18.4. Periodic Damages .............................................. 23
Section 18.5. Liquidated and Associated Damages ............................. 24
Section 18.6. Storage, Removal and Sale of Personal Property ................ 24
Section 18.7. Attorneys' Fees ............................................... 25
Section 18.8. [Intentionally Deleted] ....................................... 25
Section 18.9. Landlord Default .............................................. 25
ARTICLE 19 SUBORDINATION ................................................. 25
Section 19.1. Subordination ................................................. 25
Section 19.2. Liability of Holder of Mortgage; Attornment.................... 26
Section 19.3. Short Form Lease .............................................. 26
ARTICLE 20 MORTGAGEE PROTECTION .......................................... 26
ARTICLE 21 ESTOPPEL CERTIFICATE .......................................... 27
ARTICLE 22 SUBROGATION AND INSURANCE ..................................... 27
Section 22.1. Waiver of Subrogation ......................................... 27
Section 22.2. Tenant's Insurance ............................................ 28
Section 22.3. Evidence of Insurance ......................................... 29
Section 22.4. Compliance with Requirements .................................. 30
Section 22.5. Proceeds of Certain Insurance ................................. 30
ARTICLE 23 NONWAIVER ..................................................... 30
ARTICLE 24 DUE AUTHORITY ................................................. 31
ARTICLE 25 REAL ESTATE BROKERS ........................................... 31
ARTICLE 26 NOTICES ....................................................... 31
ARTICLE 27 HAZARDOUS SUBSTANCES .......................................... 33
Section 27.1. Defined Terms ................................................. 33
Section 27.2. Tenant's Obligations with Respect to Environmental Matters .... 34
Section 27.3. Copies of Notices ............................................. 35
Section 27.4. Tests and Reports ............................................. 35
Section 27.5. Access and Inspection ......................................... 35
Section 27.6. Obligation to Respond ......................................... 36
Section 27.7. Indemnification ............................................... 36
ARTICLE 28 TITLE AND COVENANT AGAINST LIENS .............................. 37
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ARTICLE 29 MISCELLANEOUS.................................. 37
Section 29.1. Successors and Assigns......................... 37
Section 29.2. Modifications in Writing....................... 37
Section 29.3. No Option; Irrevocable Offer................... 37
Section 29.4. Definition of Tenant........................... 38
Section 29.5. Definition of Landlord......................... 38
Section 29.6. Headings....................................... 38
Section 29.7. Time of Essence................................ 38
Section 29.8. Default Rate of Interest....................... 38
Section 29.9. Severability................................... 38
Section 29.10. Entire Agreement............................... 38
Section 29.11. Force Majeure.................................. 38
Section 29.12. Survival....................................... 39
Section 29.13. Relationship of Parties........................ 39
Section 29.14. Surrender...................................... 39
Section 29.15. No Merger...................................... 39
Section 29.16. Governing Law.................................. 39
Section 29.17. Quiet Possession............................... 39
Section 29.18. Landlord's Lien Waiver......................... 40
Section 29.19. Intent - Triple Net Lease...................... 40
Section 29.20. Usury.......................................... 40
Section 29.21. Financial Statements........................... 40
Section 29.22. Consents and Approvals......................... 40
Section 29.23. Option to Purchase............................. 40
Section 29.24. Right of First Refusal......................... 41
ARTICLE 30 DEFINITIONS.................................... 41
Exhibit A - Legal Description
Exhibit B - Schedule of Personal Property
Exhibit C - Tenant Guaranty
Exhibit D - Landlord Guaranty
Exhibit E - Form of Confidentiality Undertaking
Exhibit F - Schedule of Leased Equipment
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INDUSTRIAL BUILDING LEASE
THIS LEASE made this 6th day of October, 2000, by and between FORTRA
FIBER-CEMENT L.L.C., a Delaware limited liability company, hereinafter referred
to as "Landlord," and JAMES HARDIE BUILDING PRODUCTS, INC., a Nevada
corporation, hereinafter referred to as "Tenant."
ARTICLE 1
GRANT OF LEASE; PREMISES
For and in consideration of the rent hereinafter reserved and the
covenants and conditions hereof, Landlord does hereby lease to Tenant, and
Tenant rents from Landlord, the parcel of land comprising approximately
forty-five (45) acres, legally described on Exhibit A attached hereto and made a
part hereof, upon which is situated a building containing approximately 335,610
square feet, together with all other improvements now located or to be located
thereon during the Term (as that term is defined below) and all appurtenances
belonging to or in any way pertaining to the said premises, located in
Waxahachie, Ellis County, Texas (the "Premises") and all Personal Property (as
that term is defined below).
Tenant agrees to comply with all covenants, conditions and restrictions of
record as they relate to the conduct of Tenant and its use and occupancy of the
Premises. No amendment to any such covenants, conditions and restrictions of
record shall materially interfere with Tenant's right to use the Premises under
this Lease without Tenant's consent, not to be unreasonably withheld or delayed.
Landlord agrees to cooperate with Tenant, at no material out-of-pocket expense
to Landlord, in connection with any effort by Tenant to obtain a survey of the
Premises and a leasehold policy of title insurance or commitment therefor
showing title to the Premises in Landlord free and clear of any third-party
rights or options to purchase the Premises. Tenant agrees to furnish Landlord
copies of any such title insurance policy or commitment therefor and survey of
the Premises obtained by Tenant.
Tenant acknowledges that certain facilities (the "Bond-Financed Project")
constituting a portion of the Premises were financed with the proceeds of the
Waxahachie Industrial Development Authority Waste Disposal Revenue Bonds
(Temple/Re-Con Inc. Project) Series 1998 (the "Bonds"), which are tax-exempt
obligations issued pursuant to Sections 103 and 142(a)(5)&(6) of the Internal
Revenue Code of 1986. In connection with the issuance of the Bonds, Landlord has
made certain covenants and representations regarding the use of the
Bond-Financed Project, which remain enforceable and effective as of the date
hereof.
ARTICLE 2
TERM; POSSESSION
Section 2.1. Term. The term of this Lease ("Term") shall commence upon
October 7, 2000 (the "Commencement Date") and shall expire without the further
action of the parties hereto on the date two hundred thirty-three (233) months
and twenty-four (24) days after the Commencement Date
at 5:00 p.m. CST on March 31, 2020 (the "Expiration Date"), unless sooner
terminated as provided herein.
Section 2.2. Condition of Premises. Tenant agrees that the Premises and
the Personal Property are being leased by Landlord, and are hereby accepted by
Tenant, in their existing physical condition, AS IS, WITH ALL FAULTS, without
any agreements, representations, understandings or obligations on the part of
Landlord, except as expressly set forth in this Lease. Landlord agrees to
deliver possession of the Premises to Tenant in a shut down state free of scrap
and refuse and with all tanks, process equipment, pipe-work and vats clean and
clear of all process material, except for tanks and vats used to store Raw
Materials (as that term is defined below).
Section 2.3. Equipment, Raw Materials and Other Personal Property.
(a) Personal Property. The "Personal Property" is hereby defined as all
furniture, furnishings, office equipment, lab equipment and production equipment
(other than Surplus Equipment (as that term is defined below)) located on the
Premises and described in Exhibit B attached hereto (but excluding all computer
hardware and software not related to the manufacturing processes conducted in
the Premises by Landlord, raw materials, spare and replacement parts and
finished goods).
(b) Equipment. Tenant has identified to Landlord the production equipment
currently located in the Premises which is not necessary in the operation of its
business, together with Spare Parts (as that term is hereafter defined) which
relate thereto (the "Surplus Equipment"). Landlord agrees to furnish Tenant
notice on or before October 12, 2000 of which items of Surplus Equipment
Landlord intends to remove from the Premises as set forth herein. Thereafter,
and until and through November 6, 2000, Landlord may remove from the Premises
without compensation to Tenant the Surplus Equipment described in Landlord's
notice at Landlord's sole cost and expense. Landlord may remove from the
Premises through November 6, 2000 the sawline from the finishing area and
scissors lifts identified by Tenant at Landlord's sole cost and expense. In
consideration of Ten and 00/100 Dollars ($10.00) and the right to one-half of
all net proceeds of the sale thereof as set forth hereinbelow, the remaining
Surplus Equipment shall become the property of Tenant on and as of the
Commencement Date. Tenant agrees to use commercially reasonable efforts to sell
the Surplus Equipment not removed by Landlord on or before May 31, 2001 at
prices reasonably acceptable to Tenant. In the event any such Surplus Equipment
is not sold as of May 31, 2001, Landlord shall have the right but not the
obligation to remove any such remaining Surplus Equipment on or before June 30,
2001. Tenant hereby grants Landlord and its agents access to the Premises for
thirty (30) days commencing on each of the Commencement Date and June 1, 2001
for the purpose of removing the sawline, scissors lifts and such Surplus
Equipment as set forth above. Landlord shall remove such equipment in a manner
so as not to unreasonably interfere with Tenant's operations and business at the
Premises. Tenant acknowledges that it is refurbishing portions of the Premises
prior to beginning manufacturing operations therein and that Landlord shall not
be obligated to repair any non-material non-structural damage or any
non-structural damage to portions of the Premises which Tenant is refurbishing
that may be caused by such removal. The proceeds of all Surplus Equipment sold
under this Section 2.3(b) net of the reasonable and customary out-of-pocket
costs and expenses of such sales shall be distributed in equal halves to each of
Tenant and Landlord promptly upon receipt.
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(c) Raw Materials. Tenant agrees to identify any raw materials located in
the Premises on the Commencement Date which, in Tenant's good faith judgment,
are useable in Tenant's operations (the "Raw Materials") by written notice
delivered to Landlord on or before October 16, 2000. Tenant shall purchase all
such Raw Materials by paying Landlord a sum equal to the lesser of Landlord's
cost thereof, as evidenced by paid receipts, cancelled checks or other
reasonable documentation, or Tenant's replacement cost therefor, as evidenced by
current vendor information, on or before October 26, 2000.
(d) Spare Parts. Tenant agrees to purchase all spare and replacement parts
located in the Premises on the Commencement Date (the "Spare Parts") by paying
Landlord a sum equal to the book value thereof less the book value of (i) such
Spare Parts which relate to Surplus Equipment, (ii) such Spare Parts which are
deemed by Tenant to be kept in excess of Tenant's spare parts requirements,
(iii) the ball mill included in Spare Parts and (iv) individual items with a
book value of less than $500 each, on or before October 26, 2000.
(e) Finished Goods. Landlord shall remove all finished goods from the
finished goods storage area in the Premises on or before December 6, 2000.
Tenant hereby grants Landlord and its agents access to the Premises for the
purpose of storing and removing such finished goods as set forth above upon the
same terms set forth in Subsection 2.3(b) above.
(f) Leased Equipment. Attached hereto as Exhibit F is a schedule of
certain equipment used in connection with the operation of the Premises (the
"Leased Equipment"). Landlord agrees to pay all rents payable under the leases
for the Leased Equipment in accordance with the terms and provisions thereof as
of the date hereof so that such Leased Equipment is available to Tenant in
accordance with the term of such leases. Tenant agrees to comply with the
obligations of the lessee under such leases except for the payment of rents
thereunder. On or before termination of each lease for Leased Equipment,
Landlord agrees to pay the terminal value thereunder or otherwise purchase any
reversionary interest of the lessor and to pay any other costs necessary to
convey such equipment to Tenant at such time for no additional consideration,
free and clear of any liens or encumbrances.
Section 2.4. Assignment of Contracts and Permits.
(a) Contracts. Landlord has furnished Tenant copies of all assignable
supply and other contracts related to the ownership, occupancy, operation and
maintenance of the Premises in Landlord's possession. Prior to the Commencement
Date, Tenant shall inform Landlord of which of such contracts, if any, Tenant
intends to assume (the "Contracts"). As of the Commencement Date, Tenant agrees
to assume all of Landlord's obligations under the Contracts accruing on or after
the Commencement Date, except as set forth in Section 2.3(f) above, and to
execute and deliver such instruments evidencing such assumption as may be
reasonably requested by Landlord or any other parties to any of the Contracts.
(b) Permits. Landlord agrees to assign to Tenant as of the Commencement
Date any assignable permits and licenses related to (i) the ownership,
occupancy, operation and maintenance of the Premises and (ii) the Personal
Property. Tenant agrees to notify in writing the issuing authority of each such
permit and license of Tenant's occupancy of the Premises in accordance with the
requirements of such issuing authorities and all applicable laws, ordinances,
rules and regulations.
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(c) Warranties and Guaranties. Landlord agrees to assign to Tenant for the
Term of this Lease the benefit of any assignable warranty or guarantee, whether
express or implied, attaching to the Personal Property or the Premises and
Tenant agrees to assign the benefit of any such warranty or guarantee back to
Landlord at the expiration of this Lease. Landlord agrees to assign the benefit
of any assignable warranty or guarantee whether express or implied attaching to
the Raw Materials, Surplus Equipment or Spare Parts to Tenant. If Landlord holds
the benefit of any warranty or guarantee attaching to the Personal Property,
Premises, Raw Materials, Surplus Equipment or Spare Parts which benefit cannot
be assigned to Tenant, then on request by Tenant, Landlord agrees to use
commercially reasonable efforts to invoke that warranty or guarantee for the
benefit of Tenant, subject to Tenant's satisfaction of any conditions to the
enforceability of such warranty or guarantee.
ARTICLE 3
BASE RENT
Section 3.1. Rent. Tenant shall pay to Landlord the following "Rents" for
the Premises and the Personal Property during the Term:
(a) Base Rent. Tenant shall pay base rent ("Base Rent") to Landlord
for the Premises commencing on the Commencement Date as follows:
QUARTERLY BASE
PERIOD BASE RENT RENT
October 7, 2000 -
December 31, 2000 $ 233,333 $ 233,333
January 1, 2001 -
March 31, 2001 $ 250,000 $ 250,000
April 1, 2001 - March
31, 2002, and each
subsequent twelve (12)
month period commencing
April 1, through and
including April 1, 2019 -
March 31, 2020 $ 3,400,000 $ 850,000
All Base Rent shall be payable on October 7, 2000 and on the first day of each
and every calendar quarter thereafter during the Term and at the same rate for
fractions of a quarter if the Rent payments shall end on any day except the last
day of a calendar quarter.
(b) Additional Rent. Tenant shall also pay "Additional Rent" consisting of
all sums of money (other than Base Rent) payable by Tenant as set forth herein,
whether payable on a regular, periodic, intermediate or other basis and
regardless of whether paid directly to Landlord or to another party or entity in
fulfillment of Tenant's obligations under this Lease.
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Section 3.2. Manner of Payment. Except as otherwise expressly provided
herein, Base Rent, Additional Rent, Impositions and all other amounts becoming
due from Tenant hereunder (collectively, "Rent") shall be paid in lawful money
of the United States of America to Landlord by wire transfer to Landlord's
account or as otherwise designated from time to time by written notice from
Landlord to Tenant. Without limiting the covenant of quiet enjoyment as set
forth in Section 29.17 below, the payment of Rent hereunder is independent of
each and every other covenant and agreement contained in this Lease, and Rent
shall be paid without any set off, abatement, counterclaim or deduction
whatsoever except as may be expressly provided herein. Concurrently with the
execution hereof, Tenant shall pay Landlord the first installment of Base Rent
payable hereunder and not as a security deposit under this Lease.
Section 3.3. Late Charge. In the event that any payment of a second
installment of Base Rent due in any twelve (12) month period or any payment of
Additional Rent or Impositions shall not be received by Landlord or the payee
thereof within five (5) days of the due date thereof specified in this Lease,
then Tenant shall pay Landlord a late charge equal to the greater of (i) four
percent (4%) of the delinquent amount then due Landlord without regard to
source, or (ii) the late charge amount or other fee charged to Landlord by the
applicable vendor(s) or authority(s) in order to reimburse Landlord for
Landlord's costs, damages and all other expenses for such late payment. The
imposition of such late charge shall be in addition to, and shall not limit, any
other remedy available to Landlord under this Lease.
ARTICLE 4
ADDITIONAL RENT; IMPOSITIONS
Section 4.1. Obligation to Pay Impositions. In addition to paying the Base
Rent specified in Section 3.1 hereof, Tenant shall also pay as Additional Rent
under this Lease the Impositions determined in accordance with this Article 4.
Section 4.2. Payment by Tenant. Notwithstanding anything to the contrary
contained herein or otherwise, but subject to and without limitation of the
first sentence of Section 4.8 below, this Lease shall be deemed to be construed
as a triple net lease and any and all expenses and obligations incurred or
accrued during the Term in connection with the Premises and the Personal
Property and the ownership, maintenance, repair and operation thereof,
including, without limitation, capital expenses, will be the obligation of the
Tenant, it being understood that Landlord shall receive the Base Rent set forth
in Section 3.1 hereof free and clear of any and all other impositions, taxes,
assessments, liens, charges or expenses of any nature whatsoever in connection
with the ownership, maintenance, repair and operation of the Premises and the
Personal Property, except for expenses and obligations arising from a default by
Landlord hereunder. Tenant shall pay as Additional Rent for the Premises all
taxes and assessments, general and special, water and sewer rates, charges or
taxes in lieu of real estate taxes, and all other impositions, foreseen or
unforeseen, ordinary and extraordinary, of every kind and nature whatsoever,
which may be levied, assessed, charged or imposed during the Term upon the
Premises, or any part thereof, or upon any improvements at any time situated
thereon or with respect to Rent payable hereunder (collectively, the
"Impositions"); provided, however, that (a) Impositions levied against the
Premises or any personal property conveyed to Tenant hereunder or by any bill of
sale shall be prorated between Landlord and Tenant as of the Commencement Date
for the first year of the Term and as of the Expiration Date for the last
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year of the Term (in each case, on the basis of Landlord's reasonable estimate
thereof), and (b) all taxes attributable to the Premises or the Personal
Property or any personal property conveyed to Tenant hereunder or by any bill of
sale for any period prior to the Commencement Date and all taxes attributable to
Landlord's income and profit, franchise taxes, gross profit, revenue, federal
income taxes, state and local net income tax, federal excess profit taxes,
franchise, capital stock, business and federal or state estate or inheritance
taxes of Landlord and roll-back taxes attributable to change in use or ownership
by Landlord prior to the Commencement Date or all other taxes relating to
periods prior to the Term hereof, shall be the sole responsibility of Landlord
(collectively, the "Excluded Taxes"). Landlord hereby indemnifies and holds
harmless Tenant for all such Excluded Taxes, which indemnity shall survive the
expiration or termination of this Lease.
Section 4.3. Alternative Taxes. If at any time during the Term, the method
of taxation prevailing at the commencement of the Term shall be altered so that
any new or additional tax, assessment, levy, imposition or charge, or any part
thereof, shall be imposed upon Landlord in place or partly in place of any such
impositions or contemplated increase therein, or in addition to Impositions, and
shall be measured by or be based in whole or in part upon this Lease or the
Premises or the Rent or other income therefrom, and shall be imposed upon
Landlord, then all such taxes, assessments, levies, impositions or charges, or
the part thereof, to the extent that they are so measured or based, shall be
deemed to be included within the definition of Impositions for the purposes
hereof to the extent that such Impositions would be payable if the Premises were
the only property of Landlord subject to such Impositions, and Tenant shall pay
and discharge the same as herein provided with respect to the payment of
Impositions, but not including any Excluded Taxes.
Section 4.4. Evidence of Payment. Tenant shall deliver to Landlord
duplicate receipts (or photostatic copies thereof) evidencing the payments of
all Impositions within thirty (30) days after the respective payments evidenced
thereby to the extent that Tenant is obligated to pay same directly to the
applicable taxing authority pursuant to this Article 4.
Section 4.5. Right to Contest. From and after the Commencement Date,
Tenant shall have the right, at its own cost and expense, to contest the amount
or validity, in whole or in part, of any Imposition by appropriate proceedings
diligently conducted in good faith, but only after payment of such Imposition or
reserves set aside for the same, unless such payment, or a payment thereof under
protest, would operate as a bar to such contest or interfere materially with the
prosecution thereof, in which event, notwithstanding the provisions of this
Section 4.5, Tenant may postpone or defer payment of such Imposition if (i)
neither the Premises nor any portion thereof would, by reason of such
postponement or deferment, be in danger of being forfeited or lost, and (ii) if
Tenant has assigned this Lease other than to an affiliate under common Control
(as that term is defined below) with Tenant, Tenant or its assignee shall have
deposited with Landlord in an escrow account cash payable to Landlord in the
amount of the Imposition so contested and unpaid, together with all interest and
penalties which may accrue in Landlord's reasonable judgment in connection
therewith, and all charges that may or might be assessed against or become a
charge on the Premises or any portion thereof during the pendency of such
proceedings, or such other form of security reasonably satisfactory to Landlord.
Tenant shall have the right, subject to Landlord's approval, not to be
unreasonably withheld, delayed or conditioned, to select the counsel to be
retained in connection with the prosecution of any such proceedings. If, during
the continuance of such proceedings, Landlord shall, from time to time,
reasonably deem in good faith that the amount deposited, if any, as aforesaid,
is insufficient, Tenant shall, upon demand of Landlord, make additional deposits
of such additional sums of money as Landlord may reasonably request. Upon
failure of Tenant to make
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such additional deposits, the amount theretofore deposited, together with sums
deposited in the Tax Account, may be applied by Landlord to the payment, removal
and discharge of such Imposition and any interest, fines and penalties incurred
or imposed in connection therewith, and any costs, fees (including reasonable
attorneys' fees) and other liability (including costs incurred by Landlord)
accruing in any such proceedings. Upon the termination of any such proceedings,
Tenant shall pay the amount of such Imposition or part thereof, if any, as
finally determined in such proceedings, the payment of which may have been
deferred during the prosecution of such proceedings, together with any costs,
fees, including reasonable attorneys' fees, interest, penalties, fines and other
liability incurred or imposed in connection therewith, and upon such payment
Landlord shall return all amounts deposited with it with respect to the contest
of such Imposition, as aforesaid, or, at the written direction of Tenant,
Landlord shall make such payment out of the funds on deposit with Landlord and
the balance, if any, shall be returned to Tenant. Landlord shall not be required
to join in any proceedings referred to in this Section 4.5 unless the provisions
of any law, rule or regulation at the time in effect shall require that such
proceedings be brought by or in the name of Landlord, in which event Landlord
shall join in such proceedings or permit the same to be brought in Landlord's
name upon compliance with such conditions as Landlord may reasonably require,
including, without limitation, representation by legal counsel of its choice.
Landlord shall not ultimately be subject to any liability for the payment of any
fees, including attorneys' fees, costs and expenses incurred or imposed in
connection with such proceedings. Tenant agrees to pay all such fees (including
reasonable attorneys' fees), costs and expenses, or, on demand, to make
reimbursement to Landlord for such payment. Subject to the foregoing, Landlord
agrees to cooperate with Tenant, at no material out-of-pocket expense to
Landlord, in connection with any efforts by Tenant to obtain any available
abatements, reductions, rebates, reassessments of valuation or other relief with
respect to the Impositions.
Section 4.6. Representations and Warranties. Tenant agrees and
acknowledges that Landlord has made no representation, warranty or guaranty
relating to the amount of the Impositions. Tenant has had an opportunity to
consult with Landlord with respect to the Impositions projected but has not
relied upon any statements or representations of Landlord or any agent or
affiliate of Landlord in regard thereto in executing this Lease and agreeing to
perform the terms and covenants hereof and shall make no claims against Landlord
based thereon, except for the Landlord's failure to pay such Impositions for
such periods prior to or after the Term.
Section 4.7. Survival. Without limitation of other obligations of Tenant
which shall survive the expiration or earlier termination of this Lease, the
obligation of Tenant to pay Impositions or other Additional Rent provided for in
this Article 4 accruing during the Term shall survive such expiration or earlier
termination of this Lease for four (4) years.
Section 4.8. Personal Property Taxes and Rent Taxes. Landlord shall have
no obligation to pay any personal property taxes assessed and charged with
respect to the Personal Property or any equipment, improvements or personal
property owned or leased by Tenant ("Personal Property Taxes"), provided,
however, that Landlord agrees to pay when due any such taxes assessed and
charged with respect to the Surplus Equipment for the entire year 2000 and
one-half of any such taxes assessed and charged with respect to the Surplus
Equipment for the first six (6) months of the year 2001. Tenant shall pay all
such taxes, related assessments and/or penalties prior to their becoming
delinquent or past due. In addition to the Base Rent and other items of
Additional Rent due under this Lease, Tenant shall pay to Landlord all state and
local taxes and assessments in the nature of sales or use taxes, rental taxes,
transaction privilege taxes, taxes based on the payment or
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receipt of rent or taxes based on the use or occupancy of real property, along
with all related assessments, fees, costs, penalties and other charges, whether
or not such items are intended to be paid by landlords or owners of property to
the extent the foregoing are related to the Premises, but not including any
Excluded Taxes (collectively, "Rent Taxes"). Tenant covenants and agrees to pay
Rent Taxes to Landlord within thirty (30) days of written notice from Landlord,
and Tenant's failure to do so shall constitute a default under this Lease.
Section 4.9. Additional Rent. All amounts payable by Tenant for any sum or
charge due hereunder including, without limitation, amounts paid as or on
account of Rent Taxes, shall be deemed to be, and collectible as, Additional
Rent due under this Lease and any failure to pay such amounts when due or upon
written demand by Landlord (should it elect to do so) shall be a default under
this Lease entitling Landlord to pursue any and all rights and remedies
available to Landlord for Tenant's failure to pay Rent.
ARTICLE 5
GUARANTIES
Section 5.1. Tenant's Guaranty. As security for the performance of its
obligations under this Lease, Tenant, upon execution of this Lease, shall
furnish Landlord a Guaranty in the form of Exhibit C attached hereto (the
"Tenant Guaranty") from James Hardie NV, a Netherlands corporation
("Guarantor"). In the event the "Net Worth" (as that term is defined below) of
Guarantor falls below One Hundred Million and 00/100 Dollars ($100,000,000) at
any time during the Term, Tenant agrees to deliver prompt notice thereof to
Landlord together with a security deposit in the amount of One Million Seven
Hundred Thousand and 00/100 Dollars ($1,700,000) in cash or in the form of a
letter of credit in form and substance and issued by an issuer acceptable to
Landlord in its sole discretion (the "Security Deposit") as additional security
hereunder. Tenant agrees from time to time to pay Landlord within three (3)
business days following receipt of a request therefor, any sum or sums of money
paid or deducted therefrom by Landlord, in order that at all times during the
Term there shall be continually deposited with Landlord, a sum or letter of
credit which shall never be less than the amount originally required. The
Security Deposit shall not be deemed an advance payment of Rent, nor a measure
of damages for any default by Tenant under this Lease, nor shall the Security
Deposit be a bar or a defense to any action that Landlord may commence against
Tenant. In the event of any default by Tenant hereunder, Landlord shall have the
right, but shall not be obligated, to apply or retain all or any portion of the
Security Deposit in payment of Tenant's obligations hereunder, but any such
application or retention shall not have the effect of curing any such default.
Landlord shall hold any cash Security Deposit in a segregated account. The
Security Deposit (or the balance thereof remaining after payment out of the same
or deductions therefrom as provided above) shall be returned to Tenant no later
than sixty (60) days following expiration of the Term and the surrender of the
Premises to Landlord in the condition required hereunder. No interest shall be
payable with respect to any cash Security Deposit. Landlord or any owner of the
Premises may transfer or assign the Security Deposit to any new owner of the
Premises or to any assignee or transferee of this Lease or may credit the
Security Deposit against the purchase price of the Premises and upon such
transfer or credit all liability of the transferor or assignor of such security
shall cease and come to an end and Tenant shall look solely to such new owner,
assignee or transferee for the return of the Security Deposit. In the event
Guarantor's Net Worth exceeds One Hundred Million and 00/100 Dollars
($100,000,000) for two (2) consecutive quarters as evidenced by Guarantor's
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financial statements to be furnished pursuant to the Tenant Guaranty and there
then exist no Events of Default or events which, with the delivery of notice or
the passage of time or both, would constitute Events of Default, but subject to
the continuing obligation of Tenant to furnish a Security Deposit if Guarantor's
Net Worth should at one or more times thereafter fall below the minimum amount
stated above, Landlord shall return to Tenant the Security Deposit. "Net Worth"
is defined as, as of any time the same is to be determined, the total
shareholders' equity (including capital stock, additional paid-in-capital and
retained earnings after deducting treasury stock, but excluding minority
interests in subsidiaries, if any) which would appear on the balance sheet of
Guarantor and wholly-owned subsidiaries which report on a consolidated basis
with Guarantor determined in accordance with generally accepted accounting
principles.
Section 5.2. Landlord's Guaranty. As security for the performance of its
obligations under this Lease, Landlord, upon execution of this Lease, shall
furnish Tenant a Guaranty in the form of Exhibit D attached hereto (the
"Landlord Guaranty") from Temple-Inland Forest Products Corporation.
ARTICLE 6
USE OF PREMISES
Section 6.1. Permitted Uses. Tenant shall use and occupy the Premises in
connection with operating a building or construction materials manufacturing
plant and general storage, office purposes and other uses related thereto and
for any other uses permitted by any and all applicable laws and regulations,
provided, however, Tenant must give Landlord prior written notice of any change
in use specifying in reasonable detail the nature of the changed use ("Permitted
Uses").
Section 6.2. Prohibited Uses. Tenant shall not use or permit the Premises
to be used in any manner other than the Permitted Uses. Notwithstanding anything
contained herein to the contrary, Tenant shall not use or permit the Premises to
be used in any manner which would (i) be contrary to any statute, rule, order,
ordinance, requirement or regulation applicable to the Premises or Tenant's use
thereof including, but in no way limited to the Environmental Laws (as such term
is hereafter defined); (ii) violate any certificate of occupancy or building
permit affecting the Premises or any part thereof; (iii) cause material injury
to the Premises or any part thereof; (iv) constitute a public or private
nuisance or waste; (v) render the insurance on the Premises void or the
insurance risk more hazardous or create any defense to payment; (vi) cause or is
likely to cause material damage to the Premises or any equipment or the systems
in the Premises; or (vii) violate any covenant, condition or restriction of
record in any material respect (any such use is herein referred to as a
"Prohibited Use"). Tenant agrees that it will promptly, upon discovery of any
such Prohibited Use, take all necessary steps to compel the discontinuance of
such use. Landlord represents and warrants to Tenant that the Premises have not
been used for any Prohibited Use prior to the Term hereof by Landlord or, to
Landlord's knowledge, without inquiry, any other party. Landlord hereby
indemnifies and holds harmless Tenant for any Prohibited Use that occurred on
the Premises prior to, or that occurs thereon after, the Term hereof. The
foregoing indemnity shall survive the expiration or termination of this Lease.
Section 6.3. Adverse Possession. Tenant shall not use, suffer or permit
the Premises or any material portion thereof to be used by Tenant, any third
party or the public, as such, without
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restriction or in such manner as might reasonably tend to impair Landlord's
title to the Premises or any material portion thereof, or in such manner as
might reasonably make possible a claim or claims of adverse usage or adverse
possession by the public, as such, or third persons, or of implied dedication of
the Premises or any material portion thereof or which might create the basis for
a claim for prescriptive easement or right of way on or through the Premises or
any material portion thereof by the public, as such, or any third party. Nothing
contained herein and no action or inaction by Landlord shall be deemed or
construed to mean that Landlord has granted to Tenant any right, power or
permission to do any act or make any agreement that may create, give rise to or
be the foundation for any such right, title, interest, lien, charge or other
encumbrance upon the estate of Landlord in the Premises.
Section 6.4. Use of Parking Areas. Tenant shall have exclusive access and
control of the parking areas located on the Premises as of the date hereof for
use by Tenant and its officers, employees, agents, representatives, customers,
guests and invitees. Tenant shall not use any material part of the Premises in a
manner which will obstruct driveways serving parking areas for any material
period of time. Tenant shall not suffer or permit the storage of abandoned,
inoperable or unsightly vehicles in the parking areas for any material period of
time.
Section 6.5. Compliance with Bond Documents. (a) Tenant agrees that it
will use the Bond-Financed Project in a manner that conforms to the
representations and complies with the covenants of Landlord as set forth in the
Loan Agreement dated as of May 1, 1998, relating to the Bonds (the "Loan
Agreement"), receipt of a copy of which Tenant hereby acknowledges. Moreover,
Tenant will permit, upon the prior written request Landlord or its agents,
Landlord or its agents to access the Premises at such reasonable times as may be
necessary in the reasonable opinion of the Landlord or its agents to inspect the
Bond-Financed Project to determine conformance with such representations and
compliance with such covenants and this Lease. Should Landlord or its agents
determine that the Bond-Financed Project fails to be used in a manner that
conforms to the representations or complies with the covenants, it promptly
shall provide written notice thereof to Tenant and, within sixty (60) days after
receipt thereof, Tenant shall commence correction of such failure. Tenant will
not dispose of any of the facilities comprising the Bond-Financed Project
without notice to, and consent of, Landlord. The obligations of Tenant under
this Section 6.5 shall apply only during such time as any of the Bonds are
outstanding.
(b) Landlord covenants and agrees to redeem the Bonds in full on or before
January 2, 2001. Landlord represents and warrants to Tenant that it has
conformed to the representations and complied with the covenants of the Loan
Agreement as of the date hereof. Landlord hereby indemnifies and holds harmless
Tenant for Landlord's failure to comply with the covenants and conform to the
representations as set forth in the Loan Agreement described above or to redeem
the Bonds in full on or before January 2, 2001, including, without limitation,
any consequential damages that may arise from any such failure, which indemnity
shall survive the expiration or termination of this Lease.
(c) In the event Landlord fails to redeem the Bonds in full on or before
January 2, 2001, Landlord shall be deemed to be in default hereunder and no cure
or grace paid shall be applicable thereto and Tenant shall have the right to
terminate this Lease by delivering written notice to Landlord on or before
January 20, 2001.
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ARTICLE 7
UTILITIES AND SERVICES
Section 7.1. Utilities and Services. Gas, water and electricity shall not
be furnished by Landlord, but shall be furnished by utility companies serving
the area in which the Premises are located. Landlord shall permit Tenant to
receive such service directly from such utility companies at Tenant's cost,
shall permit Landlord's wire and conduits in the Premises, to the extent
available, suitable and safely capable, to be used for such purposes, and shall
cooperate with Tenant, at no material out-of-pocket expense to Landlord and
without encumbering the Premises, to the extent necessary to cause utility
services to be available to the Premises. Tenant shall make all necessary
arrangements with the utility company for metering (which metering costs shall
be borne solely by Tenant) and paying for services furnished by it to Tenant,
and Tenant shall pay for all charges for such utility services consumed on or
within the Premises during Tenant's occupancy thereof.
Section 7.2. Failure to Furnish Utilities or Services. Tenant agrees that
Landlord and its agents shall not be liable for damages, or for any abatement of
Rent or otherwise, due to failure, delay or interruption of any utility
services. No such failure, delay or interruption shall ever be deemed to
constitute an eviction or disturbance of Tenant's use and possession of the
Premises or relieve Tenant from paying Rent or performing any of its obligations
under this Lease. Notwithstanding the foregoing, nothing contained herein shall
relieve Landlord of liability for actual damages incurred by Tenant to the
extent caused by the negligent conduct or willful misconduct of Landlord.
Section 7.3. Regulations Regarding Utilities and Services. Tenant and
Landlord each agree to cooperate fully, at all times, with each other in abiding
by all reasonable regulations and requirements which either Landlord or Tenant
may reasonably prescribe for the proper functioning and protection of all
utilities and services reasonably necessary for the operation of the Premises,
provided, however, that, in connection with any such regulations and
requirements prescribed by Tenant, Tenant shall reimburse Landlord for all
material out-of-pocket expenses incurred by Landlord in connection therewith.
ARTICLE 8
CONDITION AND CARE OF PREMISES
Section 8.1. Condition of the Premises. No promises of Landlord to alter,
remodel, improve, repair, decorate or clean the Premises or any part thereof
have been made, and no representation respecting the condition of the Premises
or the Improvements or the Personal Property or any part thereof has been made
to Tenant by or on behalf of Landlord, except as expressly set forth herein.
Section 8.2. Tenant Obligations. At its sole cost and expense throughout
the Term, Tenant shall (i) keep the Premises (including the Improvements) and
the Personal Property in good order and condition of repair and (ii) make and
perform all commercially reasonable maintenance thereof and all repairs thereto,
interior and exterior, ordinary and extraordinary, structural and
non-structural, foreseen and unforeseen, of every nature, kind and description,
except as otherwise expressly provided herein. When used in this Article 8,
"repairs" shall include all necessary replacements,
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renewals, alterations, additions and betterments, whether capital or
non-capital, and regardless of whether the useful life thereof extends beyond
the Term. As to any repairs and replacements whatsoever, Tenant shall, in
connection therewith, comply with the requirements of Article 13 hereof as if
such work constituted an alteration. Tenant shall further keep and maintain the
improvements at any time situated upon the Premises, including, without
limitation, the parking areas, sidewalks, driveways, roadways, pathways, curbs,
loading areas and areas adjacent thereto, and all landscaped areas adjacent
thereto, reasonably safe, secure, clean and sanitary including, without
limitation, snow and ice clearance, planting and replacing flowers and
landscaping, and necessary interior painting. All repairs made by Tenant shall
be at least equal in quality to the work performed in constructing the
Improvements and the condition of the Premises and the Personal Property as of
the date hereof and shall be made by Tenant in accordance with all laws,
ordinances and regulations, whether heretofore or hereafter enacted. The
necessity for or adequacy of maintenance and repairs shall be measured by the
standards which are appropriate for improvements of similar construction and
class, provided that Tenant shall, in any event, make all repairs to the
Premises necessary to avoid any structural damage or other damage or injury to
the Premises or any part thereof.
Section 8.3. Landlord Obligations. Landlord shall not be required to
furnish any services or facilities or to make any repairs or alterations in,
about, or to the Premises.
Section 8.4. Compliance with Laws, Rules and Regulations. Tenant shall, at
its sole cost and expense, comply in all material respects with (i) all federal,
state, county, municipal and other governmental and quasi-governmental statutes,
laws, rules, orders, regulations and ordinances affecting the Premises or any
part thereof, or the use thereof, including those which require the making of
any unforeseen or extraordinary changes (the "Legal Requirements"), including,
but in no way limited to, the Environmental Laws, as such term is defined in
Article 27 hereof, and the Americans with Disabilities Act, as the same may be
amended from time to time (the "ADA"), whether or not any such statutes, laws,
rules, orders, regulations or ordinances which may be hereafter enacted involve
a change of policy on the part of the governmental body enacting the same, and
(ii) all rules, orders and regulations of the National Board of Fire
Underwriters or other bodies exercising similar functions in connection with the
prevention of fire or the correction of hazardous conditions (the "Fire
Underwriters Requirements"), which apply to the Premises. Tenant shall
materially comply with the requirement of all policies of liability, property
and other insurance which at any time may be in force with respect to the
Premises. In the event that the use by Tenant or any subtenant or assignee of
Tenant of the Premises results in the Premises constituting a "place of public
accommodation" for purposes of the ADA, Tenant shall give notice thereof to
Landlord and, to the extent that there are any signage requirements or additions
or deletions of, or improvements, or modifications to, any barriers to
accessibility, or other accommodations necessary for compliance with such law,
then Tenant shall be responsible for the cost of all such signage,
modifications, additions, deletions, improvements or accommodations. Tenant
acknowledges that any such requirements may require permanent replacements and
capital improvements to the Premises which (i) have expected useful lives
extending beyond the Term of this Lease and (ii) would otherwise be the
responsibility of Landlord. Any alterations to the Premises performed by Tenant
hereunder shall be subject to the terms of Article 13 regarding Tenant's right
to construct improvements on the Premises. Tenant agrees to indemnify, hold
harmless and defend Landlord from any claim, demand, damage, costs, assessment,
fee, penalty or any other charges or expense, including attorneys' fees, arising
out of or related to any failure or alleged failure by Tenant to fully comply
with any of its obligations under this Section 8.4. Tenant further acknowledges
and agrees that a failure by Tenant to comply with the terms hereof shall, with
the giving of the applicable
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notice, constitute a default under Section 18.1 (e) hereof. Except as disclosed
to Tenant in writing, Landlord represents and warrants to Tenant that Landlord
has materially complied (as of the date hereof and for the period prior to the
Term) with all Legal Requirements, Environmental Laws, ADA, Fire Underwriters
Requirements, and all other laws and regulations which applied to the Premises
at the relevant time. Landlord agrees to indemnify, hold harmless and defend
Tenant from any claim, demand, damage, costs, assessment, fee, penalty or any
other charges or expense, including reasonable attorneys' fee, arising out of or
related to any failure or alleged failure by Landlord under the foregoing
representation and warranty, which indemnity shall survive the expiration or
termination of this Lease.
ARTICLE 9
RETURN OF PREMISES
Section 9.1. Surrender of Possession. At the termination of this Lease,
whether by lapse of time or otherwise, or upon termination of Tenant's right of
possession without termination of this Lease, Tenant shall surrender possession
of the Premises and the Personal Property to Landlord and deliver all keys to
the Premises to Landlord and make known to Landlord the combination of all locks
of vaults then remaining in the Premises. Tenant agrees and acknowledges that
Tenant shall return and surrender the Premises and the Personal Property and all
other equipment, improvements, personal property and fixtures of Landlord
therein to Landlord as aforesaid "broom-clean" and in as good condition as when
the construction of the Improvements is completed, ordinary wear and tear, age
and loss or damage by fire or other insured casualty, condemnation and damage
resulting from the negligence or willful misconduct of Landlord or its employees
and agents excepted, failing which, Landlord may restore the Premises and the
Personal Property and such other equipment and fixtures to such condition, and
Tenant shall pay the cost thereof to Landlord promptly upon demand. Except as
specifically set forth in this Lease, Tenant shall have no right or ability to
cancel or surrender this Lease or the Premises.
Section 9.2. Installations and Additions. At the termination of this
Lease, all installations, additions, partitions, hardware, fixtures and
improvements, temporary or permanent, equipment and furniture placed in the
Premises by Tenant shall be and hereby remain Tenant's property. At Landlord's
request delivered at least six (6) months prior to the Expiration Date or as
soon as reasonably practicable in the event of an early termination of this
Lease, Tenant, at Tenant's sole cost and expense, shall remove such of the
installations, additions, partitions, hardware, fixtures and improvements,
equipment and furniture placed in the Premises by Tenant as are designated in
such notice and repair any material damage to the Premises caused by such
removal prior to the Expiration Date or, in the event of early termination of
this Lease, as soon as reasonably practicable, failing which Landlord may remove
the same and repair the Premises, and Tenant shall pay the cost thereof to
Landlord on demand. At the sole option of Landlord, Tenant shall leave in place
any floor covering without compensation to Tenant, or Tenant shall remove any
floor covering and shall remove all fastenings, paper, glue, bases or other
vestiges and restore the floor surface to its previous condition or shall pay to
Landlord upon demand the cost of restoring the floor surface to such condition.
Section 9.3. Trade Fixtures and Personal Property. Tenant shall remove
Tenant's furniture, machinery, safes, trade fixtures, and other items of movable
personal property and equipment of
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every kind and description from the Premises and restore any damage to the
Premises caused thereby, such removal and restoration to be performed prior to
the end of the Term or thirty (30) days following termination of this Lease or
Tenant's right of possession, whichever might be earlier. If Tenant fails to
remove such items, Landlord may do so and thereupon the provisions of Section
18.6 shall apply, and Tenant shall pay to Landlord upon demand the cost of
removal and of restoring the Premises.
Section 9.4. Survival. All obligations of Tenant under this Article 9
shall survive the expiration of the Term or sooner termination of this Lease.
ARTICLE 10
HOLDING OVER
Tenant shall have no right to occupy the Premises or any portion thereof
after the expiration or earlier termination of this Lease or of Tenant's right
to possession of the Premises. In the event Tenant or any party claiming by,
through or under Tenant retains possession of the Premises or any portion
thereof after the expiration or earlier termination of this Lease or of Tenant's
right to possession of the Premises, Landlord may exercise any and all remedies
available to it at law or in equity to recover possession of the Premises and
Tenant shall be liable for any costs, expense, damages (whether consequential or
direct) or liability Landlord suffers as a result of its holdover, including
under any lease with a successor tenant or under any contract with a contract
vendee. For each day Tenant or any party claiming by, through or under Tenant
retains possession of the Premises or any part thereof after the expiration or
earlier termination of this Lease or of Tenant's right to possession of the
Premises, Tenant shall pay Landlord an amount which is the sum of (i) the
greater of (A) the fair market rental value of the Premises determined at the
time of such holdover and (B) one hundred fifty percent (150%) of the Base Rent
due and payable at the time of such Lease termination or loss of right of
possession, pro-rated on a per diem basis, (ii) Impositions for the period in
which such holdover occurs, calculated as though such period were within the
Term, and pro-rated on a per diem basis, and (iii) all other Additional Rent due
for, or applicable to, the Term and any such holdover period. Acceptance by
Landlord of Rent after such termination shall not of itself constitute a
renewal. Nothing contained in this Section shall be construed or operate as a
waiver of Landlord's right of reentry or any other right or remedy of Landlord.
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ARTICLE 11
[INTENTIONALLY DELETED]
ARTICLE 12
RIGHTS RESERVED TO LANDLORD
Landlord reserves the following rights, exercisable with prior written
notice to Tenant as set forth below (except as otherwise provided herein) and
without effecting an eviction or disturbance of Tenant's use or possession or
giving rise to any claim for set off or abatement of Rent or affecting any of
Tenant's obligations under this Lease:
(a) to exhibit the Premises with advance notice at reasonable hours
to actual or prospective lenders, purchasers and, during the last six (6)
months of the Term, to prospective lessees;
(b) to decorate, remodel, repair, alter or otherwise prepare the
Premises for re-occupancy at any time after Tenant abandons the Premises;
(c) upon seven (7) days prior written notice to Tenant, which notice
shall set forth the applicable reasonable purpose, to enter the Premises
at reasonable hours for reasonable purposes; and
(d) to enter upon the Premises at all reasonable times and upon
reasonable prior written notice to Tenant (and without notice in the event
of an emergency) to maintain, repair and/or make replacements to the
Premises and the Personal Property necessary for the safety, protection or
preservation thereof or of a material portion thereof or any person.
Landlord agrees to deliver and to cause its agents to deliver to Tenant an
executed Confidentiality Undertaking in the form of Exhibit E attached hereto
prior to any entry onto the Premises for the purposes described in clauses (c)
and (d) above, except that such Confidentiality Undertaking may be delivered as
soon as practicable in the event of any emergency under clause (d) above. Each
party hereto agrees to observe and not to interfere with the rights reserved to
the other party contained in this Lease.
ARTICLE 13
ALTERATIONS
Tenant shall not, without prior written notice to Landlord, make any
alterations, additions or improvements to the Premises; provided that Tenant
shall not be required to furnish Landlord prior written notice of any
alterations that do not require the issuance of a building permit or similar
authorization from any governmental agency ("Non-Structural Alterations").
Before commencement of the work or delivery of any materials onto the Premises
requiring notice to Landlord, Tenant shall furnish to Landlord final plans and
specifications therefor, with any confidential information removed, but
including, without limitation, all plans and specifications
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furnished to governmental agencies, and necessary permits and licenses. Landlord
shall, at Tenant's cost without delay, do all acts and sign all documents to
enable Tenant to obtain the necessary approvals and permits and to otherwise
enable Tenant to carry out those alterations, additions or improvements. All
alterations, additions and improvements shall be installed in a good,
workmanlike manner. All such work shall be done only by licensed contractors.
Tenant further agrees to indemnify, defend and hold Landlord harmless from any
and all liabilities of every kind and description which may arise out of or be
connected in any way with said alterations, additions or improvements
(including, without limitation, Non-Structural Alterations) and shall, at its
sole and exclusive expense, promptly pay all bills for such work and/or delivery
of goods in order to assure that no materialman and mechanic notices and/or
liens associated therewith are filed. Tenant shall pay the cost of all
alterations, additions and improvements and also the cost of restoring the
Premises occasioned by such alterations, additions and improvements, including,
without limitation, the cost of labor and materials, contractor's profit,
overhead and general conditions. Upon completing any alterations, additions or
improvements, Tenant shall furnish Landlord with contractors' affidavits, in
form required by law, and full and final waivers of lien and receipts and bills
covering all labor and materials expended and used. All alterations, additions
and improvements shall comply with all insurance requirements and with all city
and county ordinances and regulations, with the requirements of all state and
federal statutes and regulations and with the requirements of Section 8.4 above.
Within thirty (30) days after completion of any alterations, additions or
improvements for which notice to Landlord is required hereunder, Tenant shall
deliver to Landlord one (1) set of "as-built" plans for such alterations,
additions or improvements prepared by Tenant's engineer in reproducible form,
with any confidential information removed. Upon the expiration or earlier
termination of this Lease, Tenant shall transfer to Landlord all unexpired
warranties obtained by Tenant for work done in connection with the alterations,
additions or improvements.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
Section 14.1. Assignment and Subletting. Tenant shall not, without the
prior written consent of Landlord, which shall not be unreasonably withheld,
conditioned or delayed, in each instance, (i) assign, transfer, license,
mortgage, pledge, hypothecate or in any way encumber, or subject to or permit to
exist upon or be subjected to any lien or charge, this Lease or any interest
herein; (ii) allow to exist or occur any transfer of or lien upon this Lease or
Tenant's interest herein by operation of law; (iii) sublet the Premises or any
part thereof; or (iv) permit the use or occupancy of the Premises or any part
thereof for any purpose other than Permitted Uses or by anyone other than Tenant
and Tenant's employees, officers, agents, representatives and invitees.
Notwithstanding anything to the contrary provided this Lease, Landlord expressly
consents to any assignment, license, sublease or transfer of this Lease or any
interest in Tenant to any Affiliate (as that term is hereinafter defined) of
Tenant or to any entity purchasing all or substantially all of the assets or
stock of Tenant (through purchase, merger or otherwise). "Affiliate" shall mean,
when used with reference to Tenant any other entity that directly or indirectly,
through one or more intermediaries, Controls, is Controlled by, or is under
common Control with Tenant. "Controlling" and any variations thereof shall mean
direct or indirect ownership of fifty percent (50%) or more of all of the voting
stock of a corporation or fifty percent (50%) or more of the voting legal or
equitable interest in any other business entity. In no event shall this Lease be
assigned or assignable by or as part of voluntary or involuntary
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bankruptcy proceedings or otherwise, and in no event shall this Lease or any
rights or privileges hereunder be an asset of Tenant under any bankruptcy,
insolvency or reorganization proceedings.
Section 14.2. Rentals Based on Net Income. Without thereby limiting the
generality of the foregoing provisions of this Article 14, except as expressly
permitted by Section 14.1, Tenant expressly covenants and agrees not to enter
into any lease, sublease or license, concession or other agreement for use,
occupancy or utilization of the Premises which provides for rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the property leased, used,
occupied or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and that any such purported lease, sublease
or license, concession or other agreement shall be absolutely void and
ineffective as a conveyance of any right to or interest in the possession, use,
occupancy or utilization of any part of the Premises.
Section 14.3. Tenant to Remain Obligated. Consent by Landlord to any
assignment, subletting, use, occupancy or transfer shall not operate to relieve
Tenant from any covenant or obligation hereunder, except to the extent, if any,
expressly provided for in such prior written consent, or be deemed to be a
consent to or relieve Tenant or any sublessee or assignee from obtaining
Landlord's consent to any subsequent assignment, transfer, lien, charge,
subletting, use or occupancy. Tenant shall pay all of Landlord's costs, charges
and expenses, including reasonable attorneys' fees, incurred in connection with
any assignment, transfer, lien, charge, subletting, use or occupancy made or
requested by Tenant, including, without limitation, reasonable costs and
expenses of attorneys employed in such assignment, subletting or other transfer
process.
Section 14.4. Landlord's Consent. In accordance with Section 14.1 hereof,
Landlord, upon receiving Tenant's notice of proposed assignment or subletting
with respect to any portion of the Premises, will not unreasonably withhold,
delay, or condition its consent to Tenant's assignment of this Lease or
subletting the space covered by its notice. Landlord shall not be deemed to have
unreasonably withheld its consent to a sublease of all or part of the Premises
or an assignment of this Lease if its consent is withheld because (i) Tenant is
then subject to a notice of a material default from Landlord hereunder; (ii) any
notice of termination of this Lease or termination of Tenant's possession shall
have been given under Article 18 hereof; (iii) the portion of the Premises which
Tenant proposes to sublease, including the means of ingress to and egress from
and the proposed use thereof, and the remaining portion of the Premises will
violate or in any way conflict with any city, state or federal law, ordinance or
regulation, including, without limitation, any applicable building code or
zoning ordinances, or may require any retrofitting or substantial alteration or
modification of the Premises for purposes of compliance with any law, statute or
regulation, including, but not limited to, the Occupational Safety and Health
Act, the ADA or Environmental Laws; (iv) the proposed use of the Premises by the
subtenant or assignee is not a Permitted Use or in any way amounts to a
Prohibited Use; (v) in the good faith reasonable judgment of Landlord, the
proposed subtenant or assignee is of a character or is engaged in a business
which would be deleterious to the reputation of the Premises; or (vi) the
subtenant or assignee is not, in the good faith reasonable judgment of Landlord,
sufficiently financially responsible to perform its obligations under the
proposed sublease or assignment; provided, however, that the foregoing are
merely examples of reasons for which Landlord will withhold its consent and
shall not be deemed exclusive of any permitted reasons for withholding consent,
whether similar to or dissimilar from the foregoing examples.
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Section 14.5. Assignee to Assume Obligations. If Tenant shall assign this
Lease as permitted herein, the assignee shall expressly assume all of the
obligations of Tenant hereunder in a written instrument satisfactory to Landlord
and furnished to Landlord prior to the effective date of the assignment. If
Tenant shall sublease the Premises as permitted herein, Tenant shall obtain and
furnish to Landlord, prior to the effective date of such sublease and in form
satisfactory to Landlord, the written agreement of such subtenant stating that
(i) the subtenant will attorn to Landlord, at Landlord's option and written
request, in the event this Lease terminates before the expiration of the
sublease and (ii) Landlord may enforce the provisions of the sublease, including
the collection of rents. Any failure to comply with the requirements of this
Section 14.5 shall, without further act of any party to this Lease or related
assignment or sublease, terminate any such agreement, but in any event, Tenant's
obligations under this Lease shall remain in full force and effect.
Section 14.6. Indirect Assignments. For purposes of this Article 14, the
following events shall be deemed an assignment or sublease, as appropriate: (i)
the issuance of equity interests (whether stock, partnership interests or
otherwise) in Tenant or any subtenant or assignee, or any entity Controlling any
of them, to any person or group of related persons (other than Affiliates of
Tenant), in a single transaction or a series of related or unrelated
transactions, such that, following such issuance, such person or group shall
have Control of Tenant or any subtenant or assignee; (ii) a transfer of Control
of Tenant or any subtenant or assignee in a single transaction or a series of
related or unrelated transactions (including, without limitation, by
consolidation, merger, acquisition or reorganization), except to an Affiliate of
Tenant and except that the transfer of outstanding capital stock or other listed
equity interests by persons or parties other than "insiders" within the meaning
of the Securities Exchange Act of 1934, as amended, through the
"over-the-counter" market or any recognized national or international securities
exchange, shall not be included in determining whether Control has been
transferred; provided, however, that the foregoing clauses (i) and (ii) shall
not include a sale of all or substantially all of the assets or stock of Tenant
to any Affiliate of Tenant, to which Landlord has consented under Section 14.1
above, or any restructuring of the ownership structure of Tenant and its
Affiliates which does not result in a change of Control thereof; or (iii) a
change or conversion in the form of entity of Tenant, any subtenant or assignee,
or any entity controlling any of them, which has the effect of reducing the
liability of any of the partners, members or other owners of such entity below
that which existed as of the Commencement Date.
ARTICLE 15
WAIVER OF CERTAIN CLAIMS; INDEMNITY
Section 15.1. Waiver of Certain Claims; Indemnity by Tenant. To the extent
not expressly prohibited by law, Tenant releases Landlord, and its partners,
members, shareholders, officers, directors, agents, servants and employees,
from, and waives all claims as against such persons for, damages to person or
property sustained by Tenant or by any occupant of the Premises or by any other
person, resulting directly or indirectly from fire or other casualty, or any
existing or future condition, defect, matter or thing in or about the Premises
or any part of it, or from any equipment or appurtenance therein, or from any
accident in or about the Premises, or from any act or neglect of any tenant or
other occupant of the Premises or any part thereof or of any other person,
including Landlord's agents and servants. This Section 15.1 shall apply
especially, but not exclusively, to damage caused by water, snow, frost, steam,
excessive heat or cold, sewage, gas, odors or noise, or the bursting or leaking
of pipes or plumbing fixtures, broken glass, sprinkling or air conditioning
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devices or equipment, or flooding of basements, and shall apply whether the
damage was due to any of the acts specifically enumerated above or from any
other thing or circumstance, whether of a like nature or of a wholly different
nature. Further, in no event shall Landlord nor any partner, member,
shareholder, director, officer, agent, servant or employee of Landlord be liable
to Tenant or any of its subtenants or any occupant of the Premises or to any
other person for any indirect, consequential or punitive damages, including loss
of profits. Nothing contained in this Lease shall relieve Landlord of liability
for actual damages incurred by Tenant to the extent caused by the negligence or
willful misconduct of Landlord or its employees, officers or agents (other than
any liability that has been waived by Tenant pursuant to its waiver of
subrogation set forth in Section 22.1).
Section 15.2. Damage Caused by Tenant's Negligence. Except for any claim
that has been waived by Landlord pursuant to its waiver of subrogation set forth
in Section 22.1, if any damage to the Premises, or any equipment or appurtenance
therein, whether belonging to Landlord or to other tenants or occupants of the
Premises or any other person, results from any act or negligence of Tenant, its
employees, agents, contractors, licensees or invitees, Tenant shall be liable
therefor and Landlord may, at its option, repair such damage and Tenant shall,
upon demand by Landlord, reimburse Landlord for all costs of repairing such
damage.
Section 15.3. Tenant Responsible for Personal Property. All personal
property belonging to Tenant or any occupant of the Premises shall be the
responsibility of Tenant and Landlord shall have no obligation to maintain or
insure same.
Section 15.4. Indemnification. To the extent not expressly prohibited by
law, except for any claim that has been waived by Landlord pursuant to its
waiver of subrogation set forth in Section 22.1, Tenant agrees to hold Landlord,
and its members, shareholders, partners, officers, directors, agents, servants
and employees, harmless and to defend and indemnify each of them against loss,
cost, damage, claims and liabilities, including, but without limitation,
reasonable attorneys' fees and costs of litigation, for injuries to all persons
and damage to or theft or misappropriation or loss of property occurring in or
about the Premises arising from (i) Tenant's occupancy of the Premises or the
conduct of its business, (ii) any activity, work or thing done or permitted by
Tenant in or about the Premises, (iii) any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed pursuant to the terms of this Lease, or (iv) any other act or
omission of Tenant, its officers, directors, owners, agents, contractors,
invitees, licensees, employees, sublessees, assignees, other persons
participating in or associated with the business of Tenant, or arising from any
other cause or source relating to or associated with Tenant. Tenant's obligation
to indemnify Landlord and the other parties indemnified hereunder shall include
the duty to defend against any claims asserted by reason of any such claims or
liabilities and to pay any judgments, settlements, costs, penalties,
assessments, fines, fees and expenses, including reasonable attorneys' fees,
incurred in connection therewith. To the extent not expressly prohibited by law,
except for any claim that has been waived by Tenant pursuant to its waiver of
subrogation set forth in Section 22.1, Landlord agrees to hold Tenant, and its
members, shareholders, partners, officers, directors, agents, servants and
employees, harmless and to defend and indemnify each of them against loss, cost,
damage, claims and liabilities, including, but without limitation, reasonable
attorneys' fees and costs of litigation, for injuries to all persons and damage
to or theft or misappropriation or loss of property occurring in or about the
Premises arising from (i) any breach or default on the part of Landlord in the
performance of any covenant or agreement on the part of Landlord to be performed
pursuant to the terms of this Lease, or (ii) any other act, omission or gross
negligence of Landlord, its officers, directors, owners, agents, contractors,
invitees, licensees,
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employees, assignees, or other persons participating in or associated with the
business of Landlord. Landlord's obligation to indemnify Tenant and the other
parties indemnified hereunder shall include the duty to defend against any
claims asserted by reason of any such claims or liabilities and to pay any
judgments, settlements, costs, penalties, assessments, fines, fees and expenses,
including reasonable attorneys' fees, incurred in connection therewith.
Section 15.5. Survival. All obligations and waivers of the parties under
this Article 15 shall survive the expiration of the Term or sooner termination
of this Lease.
ARTICLE 16
DAMAGE OR DESTRUCTION BY CASUALTY
If the Premises shall be damaged by fire or other casualty during the last
twenty-four (24) months of the Term and the cost of restoration is reasonably
estimated by Landlord to exceed One Million Dollars ($1,000,000), then Landlord
or Tenant shall have the right to terminate his Lease as of the date of such
casualty upon giving notice to the other within thirty (30) days after such
casualty; otherwise Tenant shall proceed to repair and restore the same with
reasonable promptness. Unless this Lease is terminated as provided in the
preceding sentence, Tenant shall proceed with reasonable promptness to repair
and restore the Premises, subject to zoning laws and building codes then in
effect. Except as expressly set forth herein, no destruction of or damage to the
Premises, or any portion thereof, by fire, casualty or otherwise, shall permit
Tenant to surrender this Lease or, shall relieve Tenant from its liability to
pay to Landlord the Rent payable under this Lease or from any of its other
obligations thereunder. In the event of termination of this Lease pursuant to
this Article 16, Rent shall be apportioned on a per diem basis and be paid to
the date of the fire or other casualty. Any damage or destruction to the
Premises which does not result in termination of this Lease shall not result in
the abatement of the Base Rent, Impositions and other Additional Rent payable
hereunder. Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the Premises, damage to Tenant's personal
property or any inconvenience occasioned by any damage except (other than for
liability that has been waived by Tenant pursuant to its waiver of subrogation
set forth in Section 22.1) to the extent caused solely by Landlord's or its
agents', officers' or employees' gross negligence or willful misconduct.
ARTICLE 17
EMINENT DOMAIN
If the entire Premises, or a substantial part thereof, or any part thereof
which includes all or a substantial part of the building(s) located thereon
shall be taken or condemned by any competent authority for any public or
quasi-public use or purpose, the Term of this Lease shall end upon and not
before the earlier of (i) the date when the possession of the part so taken
shall be required for such use or purpose or (ii) the effective date of the
taking and without apportionment of the award to or for the benefit of Tenant.
If any condemnation proceeding shall be instituted in which it is sought to take
or damage any part of the Premises, the taking of which would, in Landlord's or
Tenant's reasonable opinion, prevent the economical operation of the Premises,
and such taking or damage makes it necessary or desirable to remodel the
Premises to conform to the taking or damage, either Landlord or Tenant shall
have the right to terminate this Lease upon not less than ninety (90) days'
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notice prior to the date of termination designated in such notice. In such
event, Rent shall be apportioned as of the date of the termination. No money or
other consideration shall be payable by Landlord or by Tenant for the right of
termination. If the Lease is not terminated as set forth above, then Tenant
shall proceed to repair and restore the same with reasonable promptness, subject
to zoning laws and building codes then in effect. No condemnation or taking of
any portion of the Premises which does not result in termination of this Lease
shall permit Tenant to surrender this Lease or shall relieve Tenant from its
liability to pay to Landlord the Rent payable under this Lease or from any of
its other obligations hereunder, provided, however, that, if such condemnation
or taking includes any portion of the building located on the Premises, Base
Rent shall be reduced in proportion to the reduction, if any, of the rentable
area thereof as reasonably determined by Landlord. Landlord shall be entitled to
all of the condemnation award for the Premises, provided that if such a claim
will not reduce the condemnation award to Landlord in any way, Tenant shall be
entitled to make a claim against the condemning authority for loss or damage to
Tenant's trade fixtures, equipment, machinery and removable personal property,
and, if this Lease is terminated as set forth above, for actual, out-of-pocket
costs incurred in relocating, but not for the value of the leasehold estate, and
provided further that if the Lease is not terminated as set forth above,
Landlord shall make the condemnation proceeds allocable to the taking of any
improvements on the Premises available to Tenant for the restoration thereof.
ARTICLE 18
EVENT OF DEFAULT
Section 18.1. Events of Default. The occurrence of any one or more of the
following matters constitutes a default (an "Event of Default") by Tenant under
this Lease after the expiration of any applicable notice and cure periods:
(a) failure by Tenant to pay any Base Rent after the due date
thereof for a period of ten (10) days after written notice to Tenant;
(b) failure by Tenant to pay, within thirty (30) days after written
notice of failure to pay on the due date from Landlord to Tenant, any
other moneys required to be paid by Tenant under this Lease including, but
not limited to, Impositions and Additional Rent;
(c) Tenant's assignment of this Lease or sublease of the Premises or
any portion thereof in violation of Article 14;
(d) failure by Tenant to immediately commence to cure upon receipt
of written notice from Landlord, and to continuously prosecute said cure
to completion within thirty (30) days after receipt of such notice, any
hazardous condition which Tenant has created in violation of law or of
this Lease (or such longer period, not to exceed ninety (90) days in the
aggregate, as is necessary so long as Tenant commences to cure such
default within said thirty (30) day period and diligently and continuously
prosecutes said cure to completion within said ninety (90) days);
(e) failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure shall
continue for thirty (30) days after
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written notice thereof from Landlord to Tenant (or such longer period, not
to exceed ninety (90) days in the aggregate, as is necessary so long as
Tenant commences to cure such default within said thirty (30) day period
and diligently and continuously prosecutes said cure to completion within
said ninety (90) days);
(f) the levy upon under writ of execution or the attachment by legal
process of the leasehold interest of Tenant, or the filing or creation of
a lien with respect to such leasehold interest, which writ, attachment or
lien shall not be bonded-over, released or discharged within thirty (30)
days from the date of such levy, attachment, filing or creation;
(g) Tenant becomes insolvent or bankrupt, or admits in writing its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors with respect to a material part of its assets, or
applies for or consents to the appointment of a trustee or receiver for
Tenant or for a substantial part of its assets;
(h) a trustee or receiver is appointed for Tenant or for a
substantial part of its assets and is not discharged within ninety (90)
days after such appointment; or
(i) bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings/or relief under any
bankruptcy law or similar law for the relief of debtors, are instituted
(i) by Tenant or (ii) against Tenant and are allowed against it or are
consented to by it or are not dismissed within ninety (90) days after such
institution.
Section 18.2. Rights and Remedies of Landlord. If an Event of Default
occurs, and subject to its duty to use commercially reasonable efforts to
mitigate its damages, Landlord shall have the rights and remedies hereinafter
set forth, which shall be distinct, separate and cumulative and shall not
operate to exclude or deprive Landlord of any other right or remedy allowed it
by law or in equity and the decision by Landlord to pursue any one or more of
such remedies shall not be treated as an election to only pursue any such
remedies to the exclusion of any others:
(a) Landlord may terminate this Lease by giving to Tenant notice of
Landlord's election to do so, in which event the Term shall end and all
right, title and interest of Tenant hereunder shall expire on the date
stated in such notice;
(b) Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to Tenant that
Tenant's right of possession shall end on the date stated in such notice,
whereupon the right of Tenant to possession of the Premises or any part
thereof shall cease on the date stated in such notice; and
(c) Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of Landlord hereunder by a suit or suits in
equity or at law for the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate legal or
equitable remedy, including recovery of all moneys due or to become due
from Tenant under any of the provisions of this Lease.
Section 18.3. Right to Re-Enter. If Landlord exercises either of the
remedies provided for in subsections (a) and (b) of the foregoing Section 18.2,
Tenant shall surrender possession and vacate the Premises and immediately
deliver possession thereof to Landlord, and Landlord may by
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employing lawful means re-enter and take complete and peaceful possession of the
Premises, with process of law, full and complete license so to do being hereby
granted to Landlord, and Landlord may remove all occupants and property
therefrom, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without relinquishing Landlord's right to Rent
or any other right given to Landlord hereunder or by operation of law. In
conjunction with any such re-entry by lawful means Landlord shall, in the event
that there are any subtenants occupying or having rights in and to the Premises,
be entitled to either terminate any such subtenancies or assume Tenant's rights
thereunder, provided, however, that no such assumption shall, unless otherwise
expressly agreed to by Landlord, obligate Landlord to perform or fulfill
Tenant's obligations thereunder.
Section 18.4. Periodic Damages. If Landlord terminates the right of Tenant
to possession of the Premises without terminating this Lease, Landlord may, at
its election, proceed under this Section or under Section 18.5. Under this
Section, Landlord shall have the right to immediate recovery of all amounts then
due hereunder. Such termination of possession shall not release Tenant, in whole
or in part, from Tenant's obligation to pay any amounts due Landlord hereunder
for the full Term, and Landlord shall have the right, from time to time, to
recover from Tenant, and Tenant shall remain liable for, all Base Rent,
Additional Rent, including Impositions, and any other sums accruing as they
become due under this Lease during the period from the date of such notice of
termination of possession to the stated end of the Term. In any such case,
Landlord shall use commercially reasonable efforts to relet the Premises or any
part thereof for the account of Tenant for such rent, for such time (which may
be for a term extending beyond the Term) and upon such terms as shall be
marketably reasonable, provided, however, Landlord (i) may show or lease any
other available space and Landlord shall incur no liability to Tenant for
preferentially showing or leasing such other space; (ii) shall not be obligated
to lease the Premises to any replacement tenant that does not, in Landlord's
reasonable opinion, have (A) sufficient financial resources, (B) operating
experience or (C) good reputation in the business community; (iii) shall not be
obligated to lease the Premises to any replacement tenant where the replacement
tenant's use of the Premises would violate any Mortgage, covenant, condition or
restriction of record; and (iv) shall not be obligated to lease the Premises for
any rental below the fair market rental for the Waxahachie area (except if
applicable law requires Landlord to relet the Premises or collect such rent upon
reletting and Landlord fails to do so). Landlord shall not be required to accept
any tenant offered by Tenant or to observe any instructions given by Tenant
relative to such reletting. Also, in any such case, Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to the
extent reasonably deemed by Landlord necessary or desirable and, in connection
therewith, change the locks to the Premises, and Tenant shall upon demand pay
the cost of all the foregoing together with Landlord's expenses of reletting.
The rents from any such reletting shall be applied first to the payment of the
expenses of reconditioning the Premises to a condition suitable for leasing such
Premises, reentry, redecoration, repair and alterations and the expenses of
reletting (including any brokerage fees or commissions), and second to the
payment of Additional Rent then due from Tenant, and third to the payment of
Base Rent herein provided to be paid by Tenant. Any excess or residue shall
operate only as an offsetting credit against the amount of Base Rent and
Additional Rent, including Impositions, due and owing or which thereafter may
become due and owing as the same thereafter becomes due and payable hereunder,
and the use of such offsetting credit to reduce the amount of Base Rent and
Additional Rent, including Impositions, if any, shall not be deemed to give
Tenant any right, title or interest in or to such excess or residue, and any
such excess or residue shall belong to Landlord solely, and in no event shall
Tenant be entitled to a credit on its indebtedness to or on behalf of Landlord
in excess of the aggregate sum (including Base Rent,
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Additional Rent and Impositions) which would have been paid by Tenant to the
stated end of the Term, had no Event of Default occurred. No such reentry or
repossession, repairs, alterations and additions or reletting shall be construed
as an eviction or ouster of Tenant or as an election on Landlord's part to
terminate this Lease, unless a written notice of such intention shall be given
to Tenant, nor shall it operate to release Tenant in whole or in part from any
of Tenant's obligations hereunder, and Landlord may, at any time and from time
to time, sue and recover judgment for any deficiencies from time to time
remaining after the application from time to time of the proceeds of any such
reletting.
Section 18.5. Liquidated and Associated Damages. If this Lease is
terminated by Landlord as provided for by subsection (a) of Section 18.2, or if
Landlord does not terminate the Lease, but elects to proceed under this Section
instead of Section 18.4, Landlord shall be entitled to recover from Tenant all
Base Rent and Additional Rent, including Impositions, as estimated by Landlord,
accrued and unpaid for the period up to and including such termination date or
election date, as applicable (such applicable termination or election date
hereafter "Calculation Date"), as well as all other additional sums payable by
Tenant or for which Tenant is liable or in respect of which Tenant has agreed to
indemnify Landlord under any of the provisions of this Lease, which may be then
owing and unpaid, and all costs, assessments, fines, fees and expenses,
including court costs and reasonable attorneys' fees, incurred by Landlord in
the enforcement of its rights and remedies hereunder, and, in addition, Landlord
shall be entitled to recover as damages for loss of the bargain and not as a
penalty: (i) the aggregate sum which at the time of such termination or election
represents the excess, if any, of the present value of the aggregate Rents which
would have been otherwise payable under this Lease after the Calculation Date
(including, without limitation, Base Rent at the annual rate or respective
annual rates for the remainder of the Term and the amount reasonably projected
by Landlord to represent Additional Rent for the remainder of the Term) over the
then-present value of the then-aggregate fair rental value of the Premises for
the balance of the Term remaining after the Calculation Date, such present worth
to be computed in each case on the basis of an eight percent (8%) per annum
discount from the respective dates upon which such rentals or other amounts
would have been otherwise payable under this Lease; and (ii) any damages in
addition thereto, including reasonable attorneys' fees and court costs, which
Landlord shall have sustained by reason of the breach of any of the covenants of
this Lease other than for the payment of Rent. For purposes of calculating
damages for the loss of bargain under this Section, such calculation will, for
purposes of calculating the fair rental value offset, take into account the
estimated average period of time necessary for Landlord to locate an acceptable
tenant and negotiate and complete a lease with such replacement tenant. The
parties hereto agree that such period of time shall be conclusively deemed to be
six (6) calendar months from the Calculation Date, and, therefore, there shall
be no amount attributable to fair rental value of the Premises to be offset
against amounts otherwise due under the Lease for the initial six (6) month
period after the Calculation Date.
Section 18.6. Storage, Removal and Sale of Personal Property. All property
of Tenant which is stored by Landlord or removed from the Premises by Landlord
pursuant to any provisions of this Lease may be handled, removed or stored by
Landlord at the cost and expense of Tenant and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant shall pay
Landlord for all expenses incurred by Landlord in such removal and storage and
all reasonable charges requested by Landlord for any storage of such property,
so long as the same shall be in Landlord's possession or under Landlord's
control. All such property not removed from the Premises or retaken from storage
by Tenant within sixty (60) days after the end of the Term, however terminated,
shall, at Landlord' s option, either (i) be conclusively deemed to have been
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conveyed by Tenant to Landlord as by bill of sale without further payment or
credit by Landlord to Tenant, or (ii) sold by Landlord in accordance with Texas
statutory law whereby all costs and expenses incurred by Landlord in such sale
will be added to any amounts owed Landlord.
Section 18.7. Attorneys' Fees. Tenant shall pay all of Landlord's
reasonable costs, charges and expenses, including court costs and reasonable
attorneys' fees, incurred by Landlord in any action brought by Landlord or
against Landlord in which Landlord is the prevailing party, or incurred by
Landlord in any litigation, negotiation or transaction in which Tenant causes
Landlord, without its fault, to become involved or concerned. Nothing in this
Section 18.7 shall interfere with Landlord's rights and remedies against Tenant
and/or any guarantors of this Lease to receive the benefit of Tenant's
agreements to defend and/or indemnify Landlord as variously set forth herein.
Attorneys' fees available to Landlord hereunder may include, without limitation,
all fees and costs incurred by Landlord in filing a claim or otherwise
requesting relief or appearing in or with respect to bankruptcy or insolvency
proceedings involving Tenant, any guarantor of this Lease or any successor to or
assign of either such party. In this Section 18.7, the term "prevailing party"
shall include, without limitation, a party who substantially obtains or defeats
the relief sought, as the case may be, whether by compromise, settlement,
judgment or the abandonment by the other party of its claim or defense and shall
also include a party filing a claim or otherwise requesting relief in bankruptcy
or insolvency proceedings involving the other party to this Lease. The
attorneys' fees and costs awarded shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all attorneys' fees
and costs reasonably incurred. Tenant shall also have all such rights against
Landlord that are provided to Landlord in this Section 18.7 upon Landlord's
default.
Section 18.8. [Intentionally Deleted].
Section 18.9. Landlord Default. In the event that Landlord is in default
of any agreement, representation, warranty, or indemnification obligation
provided herein, Landlord shall have thirty (30) days after notice thereof to
cure same (or if such default cannot be cured within that 30 day period, then
Landlord shall have such additional time (not to exceed 90 days) as may be
reasonably necessary if Landlord has commenced within such 30 days and is
diligently pursuing in good faith to cure such default). Subject to and without
limitation of Section 29.17 below and Tenant's rights thereunder, Tenant shall
have no, and hereby expressly disclaims and waives any, right to cancel or
terminate this Lease in the event of any non-performance or default of Landlord,
subject to the cure period set forth above, Tenant's rights being hereby
expressly limited to an action for damages, specific performance or other
equitable remedies.
ARTICLE 19
SUBORDINATION
Section 19.1. Subordination. Landlord may hereafter from time to time
execute and deliver one or more mortgages or trust deeds in the nature of a
mortgage (collectively or singularly, a "Mortgage" or "Mortgages," the Mortgage
with priority over any other Mortgages from time to time being herein referred
to as the "First Mortgage") against the Premises or any interest therein.
Landlord represents, warrants and covenants that Tenant's leasehold estate is
and will remain either senior to all Mortgages presently existing or hereafter
placed against the Premises or any part thereof
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or will be subject to a mutual recognition and attornment agreement reasonably
acceptable to Tenant. Tenant will promptly, but in no event later than twenty
(20) days after receipt thereof, execute and deliver such agreement or
agreements. Tenant covenants it will not subordinate this Lease to any Mortgage
other than a First Mortgage without the prior written consent of the holder of
the First Mortgage. Landlord represents and warrants to Tenant that to
Landlord's knowledge, without inquiry, there are no liens filed, incurred,
affecting or relating to the Premises.
Section 19.2. Liability of Holder of Mortgage; Attornment. It is further
agreed that (i) if any Mortgage shall be foreclosed, (A) the holder of the
Mortgage, ground lessor (or their respective grantees) or purchaser at any
foreclosure sale (or grantee in a deed in lieu of foreclosure), as the case may
be, shall not be (1) liable for any act or omission of any prior landlord
(including Landlord), (2) subject to any offsets or counterclaims which Tenant
may have against a prior landlord (including Landlord), or (3) bound by any
prepayment of Base Rent, Additional Rent or Impositions which Tenant may have
made in excess of the amounts then due for the next succeeding quarter; (B) the
liability of the mortgagee or trustee hereunder or the purchaser at such
foreclosure sale under this Lease or the liability of a subsequent owner
designated as landlord under this Lease shall exist only so long as such
trustee, mortgagee, purchaser or owner is the owner of the Premises, and such
liability shall not continue or survive after further transfer of ownership
except for such matters that arose during ownership; and (C) Tenant will attorn,
as Tenant under this Lease, to the purchaser at any foreclosure sale under any
Mortgage, and Tenant will promptly, but in no event later than twenty (20) days
after receipt thereof, execute such instruments as may be necessary or
appropriate to evidence such attornment, provided such instruments also contain
a provision recognizing Tenant's tenancy and agreeing that Tenant's quiet
possession shall not be disturbed if Tenant has not committed an Event of
Default; and (ii) this Lease may not be modified or amended so as to reduce the
Rent or shorten the Term or so as to adversely affect in any other respect to
any material extent the rights of Landlord, nor shall this Lease be canceled or
surrendered, without the prior written consent of the holder of any Mortgage and
any ground lessor.
Section 19.3. Short Form Lease. Prior to the Commencement Date, Landlord
and Tenant shall execute a memorandum of lease for recording (containing the
names of the parties, a description of the Premises, the Term of this Lease and
all options) in such form as may be mutually acceptable, and shall record such
memorandum with the real property records of the county in which the Premises
are located. Landlord and Tenant agree to execute a recordable release of said
memorandum of lease upon expiration or termination of this Lease.
ARTICLE 20
MORTGAGEE PROTECTION
Tenant agrees to give any ground lessor or any holder of any Mortgage
against the Premises, or any interest therein, by registered or certified mail,
a copy of any notice or claim of default served upon Landlord by Tenant,
provided that prior to such notice Tenant has been notified in writing (by way
of service on Tenant of a copy of an assignment of Landlord's interests in
leases, or otherwise) of the name and address of such ground lessor or Mortgage
holder. Tenant further agrees that if Landlord shall have failed to cure such
default within thirty (30) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional time
not to exceed ninety (90) days as may be necessary if Landlord has commenced
within such thirty (30)
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days and is diligently pursuing the remedies or steps necessary to cure or
correct such default), then the ground lessor or holder of the Mortgage shall
have an additional thirty (30) days within which to cure or correct such default
(or if such default cannot be cured or corrected within that time, then such
additional time as may be necessary if such ground lessor or holder of the
Mortgage has commenced within such thirty (30) days and is diligently pursuing
the remedies or steps necessary to cure or correct such default, including the
time necessary to obtain possession if possession is necessary to cure or
correct such default).
ARTICLE 21
ESTOPPEL CERTIFICATE
Each party hereto agrees that, from time to time upon not less than ten
(10) days prior written request by the other or the holder of any Mortgage or
any ground lessor, it (or any permitted assignee, subtenant, licensee,
concessionaire or other occupant of the Premises claiming by, through or under
Tenant) will deliver to the party making the written request, a statement in
writing signed by such party certifying certain terms, conditions and status of
the relationship between Landlord and Tenant arising out of this Lease
including, but in no way limited to: (i) that this Lease is unmodified and in
full force and effect (or if there have been modifications, that this Lease as
modified is in full force and effect and identifying the modifications); (ii)
the date upon which Tenant began paying Rent and the dates to which the Rent and
other charges have been paid; (iii) that such responding party is not in default
under this Lease, or, if in default the nature thereof in detail and, to its
best actual knowledge, the other party is not in default hereunder or, if in
default, the nature thereof in detail; (iv) that Tenant is in occupancy of the
Premises and paying all Base Rent and Additional Rent, including all
Impositions, on a current basis with no rental offsets or claims; (v) that there
has been no prepayment of Base Rent other than that provided for in this Lease;
(vi) that there are no actions, whether voluntary or otherwise, pending against
such party under the bankruptcy laws of the United States; (vii) that except as
specifically set forth in this Lease, there are no options or rights regarding
renewal of this Lease, acquisition of the Premises or any portion thereof,
expansion or diminution of the Premises or other rights or options similar to
the foregoing; and (viii) such other matters as may be reasonably required by
the party making the written request for such estoppel.
ARTICLE 22
SUBROGATION AND INSURANCE
Section 22.1. Waiver of Subrogation. Landlord and Tenant agree to have all
property damage insurance which may be carried by either of them endorsed with a
clause providing that any release from liability of, or waiver of claim for
recovery from, the other party entered into in writing by the insured thereunder
prior to any loss or damage shall not affect the validity of said policy or the
right of the insured to recover thereunder, and providing further that the
insurer waives all rights of subrogation which such insurer might have against
the other party. Without limiting any release or waiver of liability or recovery
set forth elsewhere in this Lease, and notwithstanding anything in this Lease
which may appear to be to the contrary, each of the parties hereto waives all
claims for recovery from the other party for any loss or damage to any of its
property payable under insurance policies required by this Lease to be
maintained by the party providing this waiver, regardless of whether the damage
or loss was caused by the negligence of the party granting such waiver.
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Notwithstanding the foregoing or anything contained in this Lease to the
contrary, any release or any waiver of claims shall not be operative, nor shall
the foregoing endorsements be required, in any case where the effect of such
release or waiver is to invalidate insurance coverage or invalidate the right of
the insured to recover thereunder or to increase the cost thereof (provided that
in the case of increased cost the other party shall have the right, within ten
(10) days following written notice, to pay such increased cost keeping such
release or waiver in full force and effect).
Section 22.2. Tenant's Insurance. Tenant shall procure and maintain
policies of insurance, at its sole cost and expense, during the Term with the
following coverages:
(a) Commercial general liability insurance written on a per
occurrence basis covering all claims, demands or actions made by, or on
behalf of, any person or persons, firm or corporation and arising from,
related to or connected with the Premises, Tenant's use and occupancy and
the conduct of its business therein for injury to or death of any person
and for damage to property in an amount of not less than One Million
Dollars ($1,000,000), combined single limit, which coverage shall be
primary and non-contributory, and umbrella or excess liability coverage of
not less than Ten Million Dollars ($10,000,000) in excess over and above
primary coverage. Tenant's insurance will include products and completed
operations liability.
(b) Insurance against loss or damage from external explosion or
breakdown of boilers, air conditioning equipment and miscellaneous
electrical apparatus, if any, in the Premises, in an amount not less than
One Million Dollars ($1,000,000), with loss or damage payable to Landlord
and Tenant as their interests may appear.
(c) Insurance against all worker's compensation claims in statutory
amounts and employer's liability coverage with minimum limits of One
Million Dollars ($1,000,000) bodily injury by accident, One Million
Dollars ($1,000,000) bodily injury by disease and One Million Dollars ($
1,000,000) bodily injury per each employee.
(d) Business interruption insurance covering Tenant for a period of
twelve (12) months.
(e) All leasehold improvements, contents (including, without
limitation, the Surplus Equipment and the Personal Property) and Tenant's
trade fixtures, machinery, equipment, furniture and furnishings, in the
Premises to the extent of one hundred percent (100%) of their replacement
cost (subject to reasonable and customary deductibles) against loss or
damage by fire, lightning, wind storm, aircraft, vehicles, smoke,
explosion, riot or civil commotion, flood and earthquake as provided by
all risk insurance, including coverage for vandalism and malicious
mischief and sprinkler leakage.
(f) If Tenant operates owned, leased or non-owned vehicles on the
Premises, comprehensive automobile liability insurance with a minimum
coverage of One Million Dollars ($1,000,000) per occurrence.
(g) "All risks" property and casualty insurance covering the
Premises and all improvements located thereon for the benefit of Landlord,
its managing agents and mortgagees, as their respective interests may
appear, as the named insureds, against (i) loss or
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damage by fire; (ii) loss or damage from such other risks or hazards now
or hereafter embraced by an "all risks" policy, including, but not limited
to, windstorm, hail, explosion, vandalism, riot and civil commotion,
damage from vehicles, smoke damage, water damage and debris removal; (iii)
loss from so-called explosion, collapse and underground hazards; and (iv)
loss or damage from such other risks or hazards of a similar or dissimilar
nature which are not or may hereafter be customarily insured against with
respect to improvements similar in construction, design, general location,
use and occupancy to the improvements located on the Premises. At all
times, such insurance coverage shall be in an amount equal to one hundred
percent (100%) of the then "Full Replacement Cost" of such improvements
(subject to reasonable and customary deductibles). Full Replacement Cost
shall be interpreted to mean the cost of replacing all such improvements
without deduction for depreciation or wear and tear, and it shall include
a reasonable sum of architectural, engineering, legal, administrative and
supervisory fees in connection with the restoration or replacement thereof
in the event of damage thereto or destruction thereof. If a sprinkler
system shall be located in the Premises, sprinkler leakage insurance in
form and amount reasonably satisfactory to Landlord shall be procured and
continuously maintained by Tenant at Tenant's sole cost and expense.
(h) Such other types of insurance or endorsements to the aforesaid
insurance as may be required of tenants whose use and credit is comparable
to that of Tenant by owners leasing space of a size comparable to the
Premises for a use similar to Tenant's use.
Landlord may from time to time increase the insurance coverage limits to be
maintained by Tenant under this Section 22.2 as Landlord reasonably deems
necessary in order to maintain adequate coverage; provided, that Landlord may
not increase such insurance coverage limits to amounts greater than limits
comparable to limits then customarily required of tenants leasing space of a
size comparable to the Premises for a use similar to Tenant's use. In the event
that Tenant elects to self-insure or obtain self-insured retentions in lieu of
the foregoing, Tenant will notify Landlord in writing of same, together with
information setting forth the limits of such self-insurance or self-insured
retentions (as same apply to this Lease), the excess coverage that Tenant
proposes to carry, Tenant's financial capacity to undertake and support such
self-insurance or self-insured retentions and Tenant's risk management program,
all of which shall be subject to Landlord's reasonable approval. Tenant agrees
to furnish Landlord at least annually updated information as set forth above if
there has been any material adverse change thereto.
Section 22.3. Evidence of Insurance. Prior to the commencement of the
Term, Tenant shall furnish to Landlord insurance policies and certificates of
insurance evidencing the insurance coverage required by this Lease. Such
policies shall state that such insurance coverage may not be materially amended
or canceled or not renewed without at least thirty (30) days' prior written
notice to Landlord in accordance with Article 26, Tenant and the holder of any
Mortgages whose names and addresses have been furnished to Tenant. Such
insurance shall be in form reasonably satisfactory to Landlord and the holders
of any Mortgages, provide for deductibles reasonably satisfactory to the holders
of any Mortgages and be issued by financially sound insurance companies
reasonably acceptable to Landlord licensed to do business in the State of Texas
and maintaining a rating of A+/XI or better in Best's Insurance
Reports-Property-Casualty (or an equivalent rating in any successor index
adopted by Best's or its successor). Certificates of insurance evidencing all
renewal and substitute policies of insurance shall be delivered to Landlord and
the holders of any
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Mortgages whose names and addresses have been furnished to Tenant at least
fifteen (15) days before termination of the policies being renewed or
substituted.
Landlord and any property manager, any ground lessor and the holders of
any Mortgages shall be named as principals under each policy of insurance
maintained by Tenant pursuant to Sections 22.2(a) and (f). The policies of
insurance required to be maintained by Tenant shall provide that the coverage
thereunder shall be primary, and that any coverage carried by Landlord shall be
secondary and noncontributory with respect to Tenant's policy.
Tenant shall not, on Tenant's own initiative or pursuant to request or
requirement of any third party, take out separate insurance concurrent in form
or contributing in the event of loss with the insurance required in this Lease
unless the parties required by this Article 22 to be named as additional
insureds or loss payees thereunder are so named. Tenant shall immediately notify
Landlord in writing whenever any such separate insurance is taken out. All such
policies of insurance that Tenant is obligated to obtain and maintain shall
provide that any loss shall be payable to Landlord notwithstanding any act or
omission of Tenant which might otherwise result in a forfeiture or reduction of
such insurance.
Section 22.4. Compliance with Requirements. Tenant's use shall comply with
all applicable laws and ordinances, all orders and decrees of court and all
requirements of other governmental authorities, and shall not, directly or
indirectly, make any use of the Premises which may thereby be prohibited or be
dangerous to person or property, or which may jeopardize any insurance coverage
or increase the cost of such insurance or require additional insurance coverage.
Section 22.5. Proceeds of Certain Insurance. All policies of insurance
required by Sections 22.2(b) and (g) shall provide that the proceeds thereof
shall be payable to Landlord, and if Landlord so requests, shall also be payable
to any contract purchaser of the Premises and any First Mortgagee, as the
interest of such purchaser or Mortgagee appears, pursuant to a standard named
insured or mortgagee clause.
ARTICLE 23
NONWAIVER
No waiver of any condition expressed in this Lease shall be implied by any
neglect of Landlord to enforce any remedy on account of the violation of such
condition, whether or not such violation be continued or repeated subsequently,
and no express waiver shall affect any condition other than the one specified in
such waiver and that one only for the time and in the manner specifically
stated. Without limiting Landlord's rights under Article 10, no receipt of
moneys by Landlord from Tenant after the termination in any way of the Term or
of Tenant's right of possession hereunder or after the giving of any notice
shall reinstate, continue or extend the Term or affect any notice given to
Tenant prior to the receipt of such moneys. After the service of notice or the
commencement of a suit or after final judgment for possession of the Premises,
Landlord may receive and collect any moneys due, and the payment of said moneys
shall not waive or affect said notice, suit or judgment.
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ARTICLE 24
DUE AUTHORITY
Tenant (i) represents and warrants that (A) this Lease and all other
documents and instruments delivered to Landlord in connection with this Lease
and the transactions contemplated hereby have been duly authorized, executed and
delivered by and on behalf of Tenant and constitute the valid and binding
agreements of Tenant in accordance with the terms hereof and thereof, (B) this
Lease and the performance by Tenant of its obligations hereunder do not violate
or conflict with any agreement to which Tenant is a party or to which its
property is subject, and (C) no consent of any third party is required with
respect to its execution or delivery of this Lease or performance of its
obligations hereunder, and (ii) shall deliver to Landlord or its agent,
concurrently with the delivery of this Lease executed by Tenant, and at Tenant's
sole expense, certified resolutions of the board of directors (and/or
shareholders, partners or members if required) authorizing Tenant's execution
and delivery of this Lease and the performance of Tenant's obligations
hereunder, a Certificate of Good Standing or equivalent for each of the
jurisdiction of Tenant's organization and the State of Texas and any and all
similar documentation evidencing Tenant's authority and existence as may be
reasonably requested by Landlord. Landlord (i) represents and warrants that (A)
this Lease and all other documents and instruments delivered to Tenant in
connection with this Lease and the transactions contemplated hereby have been
duly authorized, executed and delivered by and on behalf of Landlord and
constitute the valid and binding agreements of Landlord in accordance with the
terms hereof and thereof, (B) this Lease and the performance by Landlord of its
obligations hereunder do not violate or conflict with any agreement to which
Landlord is a party or to which its property is subject, and (C) no consent of
any third party is required with respect to its execution or delivery of this
Lease or performance of its obligations hereunder, and (ii) shall deliver to
Tenant or its agent, concurrently with the delivery of this Lease executed by
Landlord, and at Landlord's sole expense, certified resolutions of officers and
members authorizing Landlord's execution and delivery of this Lease and the
performance of Landlord's obligations hereunder, a Certificate of Good Standing
or equivalent for the jurisdiction of Landlord's organization and the State of
Texas and any and all similar documentation evidencing Landlord's authority and
existence as may be reasonably requested by Tenant.
ARTICLE 25
REAL ESTATE BROKERS
Landlord and Tenant agree to indemnify and hold harmless the other party
from all damages, liability and expense (including reasonable attorneys' fees)
arising from any claims or demands of any broker, licensee, agent or finder
claiming under the indemnifying party for any commission alleged to be due such
party in connection with this Lease.
ARTICLE 26
NOTICES
All notices and demands required or desired to be given by either party to
the other with respect to this Lease or the Premises shall be in writing and
shall be delivered personally, sent by
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overnight courier service, prepaid, or sent by United States registered or
certified mail, return receipt requested, postage prepaid, and addressed as
herein provided. Notices to or demands upon Tenant shall be addressed to
Tenant, prior to the Commencement Date, at
James Hardie Building Products, Inc.
26300 La Alameda, Suite 100
Mission Viejo, California 92691
Attention: Chief Executive Officer
and, after the Commencement Date, at the Premises, in both cases
with copies to
James Hardie Building Products, Inc.
26300 La Alameda, Suite 100
Mission Viejo, California 92691
Attention: General Counsel
and
James Hardie Building Products, Inc.
26300 La Alameda, Suite 100
Mission Viejo, California 92691
Attention: Chief Financial Officer
and
James Hardie NV
26300 La Alameda, Suite 100
Mission Viejo, California 92691
Attention: Corporate Secretary
Notices to or demands upon Landlord shall be addressed to Landlord
in care of
Temple-Inland Forest Products Corporation
303 South Temple Drive
Diboll, Texas 75941
Attention: Vice President - Panel Products,
and a copy to
Temple-Inland Forest Products Corporation
303 South Temple Drive
Diboll, Texas 75941
Attention: General Counsel
Notices and demands shall be deemed given and served (i) upon receipt or
refusal, if delivered personally, (ii) one (1) business day after deposit with
an overnight courier service, or (iii) three (3)
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business days after deposit in the United States mails, if mailed. Either party
may change its address for receipt of notices by giving notice of such change to
the other party in accordance herewith. Notices and demands from Landlord to
Tenant may be signed by Landlord, the managing agent for the Premises (provided
Tenant previously has been notified in writing by Landlord of the identity of
such managing agent) or the agent of any of them.
ARTICLE 27
HAZARDOUS SUBSTANCES
Section 27.1. Defined Terms.
(a) "Claim" shall mean and include any demand, cause of
action, proceeding or suit (i) for damages (whether designated as,
or otherwise encompassing, actual, punitive, foreseeable,
unforeseeable, consequential, incidental or direct damages), losses,
liabilities, judgments, injuries to person or property, damages to
natural resources, fines, penalties, interest, contribution or
settlement, (ii) for the costs of site investigations, feasibility
studies, information requests, health or risk assessments or
Response actions, and (iii) for enforcing insurance, contribution or
indemnification agreements, and shall include any actual or claimed
liability arising out of the same, including all reasonable costs
and expenses, reasonable experts' and consultants' fees and
reasonable attorneys' fees, expended in the investigation, defense
or resolution thereof.
(b) "Environmental Laws" shall mean and include all federal,
state and local statutes, ordinances, regulations and rules relating
to environmental quality, occupational safety, health, safety,
contamination and clean-up, including, without limitation, the Clean
Air Act, 42 U.S.C. Section 7401 et seq. ("CAA"); the Clean Water
Act, 33 U.S.C. Section 1251 et seq. and the Water Quality Act of
1987; the Federal Insecticide, Fungicide, and Rodenticide Act
("FIFRA"), 7 U.S.C. Section 136 et seq.; the Marine Protection,
Research, and Sanctuaries Act, 33 U.S.C. Section 1401 et seq.; the
National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.;
the Noise Control Act, 42 U.S.C. Section 4901 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.;
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.
Section 6901 et seq., as amended by the Hazardous and Solid Waste
Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. Section
300f et seq.; the Solid Waste Disposal Act, 42 U.S.C. Section 1801
et seq. the Federal Water Pollution Control Act, as amended, 33
U.S.C. Section 1251, et seq. ("FWPCA"), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq. ("HMRA"); the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act, the Emergency Planning
and Community Right-to-Know Act, and the Radon Gas and Indoor Air
Quality Research Act; the Toxic Substances Control Act ("TSCA"), 15
U.S.C. Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C.
Section 2011 et seq., and the Nuclear Waste Policy Act of 1982,42
U.S.C. Section 10101 et seq.; and any successor statutes and
regulations to the foregoing and state superlien and environmental
clean-up statutes, with implementing regulations and guidelines.
Environmental Laws shall also include all state, regional, county,
municipal and other local laws, regulations and
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ordinances insofar as they are equivalent or similar to the federal
laws recited above or purport to regulate Hazardous Materials.
(c) "Hazardous Materials" shall mean any waste, substances or
material the exposure to which is classified, limited, regulated or
prohibited by any governmental authority (federal, state or local)
including, but in no way limited to the following, including
mixtures thereof: any hazardous substance, pollutant, contaminant,
waste, by-product or constituent regulated under CERCLA; oil and
petroleum products and natural gas, natural gas liquids, liquefied
natural gas and synthetic gas usable for fuel; pesticides regulated
under the FIFRA; asbestos and asbestos materials, PCBs and other
substances regulated under the TSCA; source material, special
nuclear material, by-product material and any other radioactive
materials or radioactive wastes; however produced, regulated under
the Atomic Energy Act or the Nuclear Waste Policy Act; chemicals
subject to the OSHA Hazard Communication Standard, 29 C.F.R. Section
1910.1200 et seq.; industrial process and pollution control wastes
within the meaning of RCRA; "hazardous materials" under the HMTA;
"hazardous air pollutants" under the CAA; a "hazardous substance" or
"toxic pollutant" under the FWPCA and any and all toxic or hazardous
materials addressed by regulations promulgated now or hereafter
under the above referenced laws, related or similar laws, whether
the same be presently in existence or hereafter promulgated.
(d) "Manage" means to generate, manufacture, process, treat,
store, use, misuse, refine, recycle, reclaim, blend or burn for
energy recovery, incinerate, accumulate speculatively, transport,
transfer, dispose of or abandon Hazardous Materials.
(e) "Release" or "Released" shall mean any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing of Hazardous Materials into
the environment, as "environment" is defined in CERCLA.
(f) "Response" or "Respond" shall mean action taken in
compliance with Environmental Laws to correct, remove, remediate,
clean-up, prevent, mitigate, monitor, evaluate, investigate, assess
or abate the Release of a Hazardous Material.
Section 27.2. Tenant's Obligations with Respect to Environmental Matters.
During the Term (i) Tenant shall at its own cost conduct its activities in, on,
and about the Premises in compliance with all Environmental Laws and, to the
extent required thereby, obtain all appropriate permits; (ii) Tenant shall not
conduct, allow, permit or authorize the Management of any Hazardous Materials on
the Premises, including installation of any underground storage tanks, without
prior written disclosure to and approval by Landlord, such approval to be given
or withheld in Landlord's sole and unfettered discretion; (iii) Tenant shall not
take any action that would subject the Premises to permit requirements under
RCRA or any other Environmental Laws for storage, treatment or disposal of
Hazardous Materials; (iv) Tenant shall not dispose of Hazardous Materials in
dumpsters provided by Landlord for Tenant use; (v) Tenant shall not discharge
Hazardous Materials on or about the Premises, including, but not limited to,
into drains or sewers; (vi) Tenant shall not cause, permit or allow the Release
of any Hazardous Materials on, to or from the Premises, and (vii) Tenant shall
at its own cost arrange for the lawful transportation and offsite disposal of
all Hazardous Materials that it generates or which, are present on the Premises
as a result of the activities of Tenant, its subtenants, agents, employees,
contractors or invitees during the Term of the Lease. Notwithstanding the
foregoing, Tenant may use on the Premises those Hazardous Materials normally
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used in connection with the Permitted Use so long as Tenant's use, storage and
transportation thereof complies in all respects with all applicable
Environmental Laws. Notwithstanding the foregoing, Tenant shall not be
responsible for any pre-existing Hazardous Materials at the Premises as more
particularly discussed in Section 8.4 hereof.
Section 27.3. Copies of Notices. During the Term, each party hereto shall
promptly provide the other with copies of all summons, citations, directives,
information inquiries or requests, notices of potential responsibility, notices
of violation or deficiency, orders or decrees, Claims, complaints,
investigations, judgments, letters, notices of environmental liens or Response
actions in progress and other communications, written or oral, actual or
threatened, from the United States Environmental Protection Agency, Occupational
Safety and Health Administration, Texas National Resources Conservation
Commission or other federal, state or local agency or authority, or any other
entity or individual, concerning (i) any Release of a Hazardous Material on, to
or from the Premises, (ii) the imposition of any lien on the Premises, or (iii)
any alleged violation of or responsibility under Environmental Laws. Landlord,
the holders of any Mortgages (if accompanied by Landlord) and their respective
employees shall have the right to enter the Premises and conduct appropriate
inspections or tests in order to determine Tenant's compliance with
Environmental Laws or if Landlord or the holder of any Mortgage has reason to
believe that the Premises are not free of Hazardous Materials (other than
Hazardous Materials being used by Tenant in the ordinary course of its business
in compliance with the requirements of this Lease). Landlord agrees to use
reasonable efforts to perform such inspections and tests in a manner so as to
minimize disruption of the operations of Tenant conducted on the Premises.
Section 27.4. Tests and Reports. Upon written request by Landlord, Tenant
shall provide Landlord with the results of appropriate reports and tests, with
transportation and disposal contracts for Hazardous Materials, with any permits
issued under Environmental Laws, and with any other applicable documents to
demonstrate that Tenant has complied with all Environmental Laws relating to the
Premises. Prior to the execution of this Lease, Landlord has provided copies of
all such items and documents described in the prior sentence which are in
Landlord's possession that relate to the Premises. Landlord represents and
warrants to Tenant that, as of the date of this Lease, to Landlord's knowledge,
without inquiry (a) there are no Hazardous Materials (nor Releases thereof) at
the Premises as of the Commencement Date except as disclosed in writing to
Tenant, and (b) there are no Claims relating to Hazardous Materials at the
Premises from any third party or governmental authority.
Section 27.5. Access and Inspection. In addition to any other rights of
entry or access to the Premises pursuant to this Lease and applicable laws,
Landlord, the holders of any Mortgages (if accompanied by Landlord) and their
respective agents and representatives shall have access to the Premises and to
the books and records of Tenant (and any occupant of the Premises claiming by,
through or Tenant) relating to Hazardous Materials upon seven (7) days prior
written notice to Tenant, which notice sets forth the applicable purpose for
such access as described below, or without notice in the event of an emergency,
for the purpose of ascertaining the nature of the activities being conducted
thereon and to determine the type, kind and quantity of all products, materials
and substances brought onto the Premises or made or produced thereon, provided,
however, all such parties (other than holders of Mortgages) shall execute and
deliver to Tenant a Confidentiality Undertaking as a condition to such access
(except that such Confidentiality Undertaking may be delivered as soon as
reasonably practicable thereafter in the event of an emergency). Landlord, the
holders of any Mortgages (if accompanied by Landlord) and their respective
agents and
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representatives shall have the right to take samples in quantity sufficient for
scientific analysis of all products, materials and substances present on the
Premises, including, but not limited to, samples of products, materials or
substances brought onto or made or produced on the Premises by Tenant or an
occupant claiming by, through or under Tenant or otherwise present on the
Premises. Further, notwithstanding any provision of this Lease or applicable
statutes or judicial decisions to the contrary, with respect to any assignment,
subletting, grant of license or concession or any other permission to use the
Premises by any person other than Tenant, Landlord shall have the right to
withhold Landlord's consent thereto if, in Landlord's sole and unfettered
judgment, the assignee, subtenant, licensee, concessionaire or such other person
is not capable, either financially or operationally, of performing or is not
sufficiently qualified to perform in accordance with the requirements of this
Article 27. Any assignment, sublease, license or other permission to use the
Premises from which Landlord withholds its consent as provided in this Section
27.5 shall be void and of no further force and effect.
Section 27.6. Obligation to Respond. If Tenant's Management of Hazardous
Materials at the Premises, the occurrence of any Release thereon-or on any
adjacent or contiguous property or the existence or presence of any Hazardous
Material, (i) gives rise to liability or to a Claim under any Environmental Law,
(ii) causes a significant public health effect or threat, or (iii) creates a
nuisance, Tenant shall promptly, but in no event later then five (5) days
thereafter, or after its knowledge of same in the event of a Release on adjacent
or contiguous property notify Landlord and take all applicable action in
Response. In the event that Tenant has assigned this Lease or subleased any
portion of the Premises other than to an Affiliate in accordance with Section
14.1 and Landlord determines that the nature of the liability or Claim is such
that Landlord does not want the Response to be undertaken by Tenant's assignee
or sublessee, as applicable, Landlord shall have the right and option (but in no
event shall this right and option imply or create any obligation on the part of
Landlord) upon the giving of reasonable notice to Tenant's assignee or
sublessee, as applicable, to undertake the Response, and any costs or expenses
incurred by Landlord in pursuing such Response shall be paid by Tenant or such
assignee or sublessee.
Section 27.7. Indemnification. Tenant shall indemnify, defend (with
counsel satisfactory to Landlord) and hold harmless Landlord, its lenders, any
managing agents and leasing agents of the Premises, and their respective agents,
partners, officers, contractors, directors, shareholders, members and employees,
from all Claims arising from or attributable to: (i) the Release of any
Hazardous Materials on the Premises during or after the Term (including any
holdover periods) of, or otherwise arising out of Tenant's or its agents',
contractors', employees' or invitees' use of the Premises pursuant to this Lease
or the presence, whether or not due to Tenant's Management, of Hazardous
Materials in or on the Premises or the subsurface thereof or the violation of
any Environmental Laws by Tenant, its agents, contractors, employees or
invitees, whether or not due to Tenant's Management (including, without limiting
the generality thereof, any cost, claim, liability or defense expended in
remediation required by a governmental authority); (ii) any federal, state or
local governmental investigation or inquiry relating to Tenant's use or
occupancy of the Premises, or occurring during the Term, whether the same be
justified or caused by Tenant or its actions; or (iii) any breach by Tenant of
any of its warranties, representations or covenants in this Section or, to the
extent the same relate to or impact any Environmental Laws, any other Section of
this Lease. Tenant's obligations hereunder shall survive the termination or
expiration of this Lease and shall further survive any transfer of all or any
portion of the Premises, whether by Landlord or Tenant. The foregoing
notwithstanding, Tenant shall have no liability pursuant to the foregoing
indemnity for any environmental condition or related inquiry that arises out of
actual physical events (including
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any Management or Release) occurring prior to the Term of this Lease or arising
after the termination of this Lease and to which Tenant, its agents, employees
and contractors have not contributed or that arises solely as a result of the
actions of Landlord or its agents. This Section 27.7 shall be binding upon the
successors and assigns of Tenant and shall survive the expiration or earlier
termination of this Lease. The provisions of Article 15 of this Lease shall not
be construed to limit or circumscribe the obligations of the parties pursuant to
this Section 27.7.
ARTICLE 28
TITLE AND COVENANT AGAINST LIENS
Landlord's title is and always shall be paramount to the title of Tenant,
and nothing in this Lease contained shall empower Tenant to do any act which
can, shall or may encumber the title of Landlord. Tenant covenants and agrees
not to suffer or permit any lien of mechanics or materialmen to be placed upon
or against the Premises or Tenant's leasehold interest in the Premises. Tenant
has no authority or power to cause or permit any lien or encumbrance of any kind
whatsoever, whether created by act of Tenant, operation of law or otherwise, to
attach to or be placed upon the Premises, and any and all liens and encumbrances
created by Tenant shall attach only to Tenant's interest in the Premises. If any
such liens so attach and Tenant fails to bond over to Landlord's satisfaction or
pay and remove same within ten (10) days, then Landlord, at its election with
prior notice to Tenant, may pay and satisfy the same, and in such event the sums
so paid by Landlord shall accrue with interest from the date of payment at the
rate set forth in Section 29.8 hereof for amounts owed Landlord by Tenant. Such
sums shall be deemed to be Additional Rent.
ARTICLE 29
MISCELLANEOUS
Section 29.1. Successors and Assigns. Subject to the provisions of Article
14, each provision of this Lease shall extend to and shall bind and inure to the
benefit not only of Landlord and Tenant, but also their respective heirs, legal
representatives, successors and assigns, but this provision shall not operate to
permit any transfer, assignment, mortgage, encumbrance, lien, charge or
subletting contrary to the provisions of this Lease, and Landlord agrees not to
sell or transfer the Premises or to allow the sale or transfer of the ownership
interest of Temple-Inland Forest Products Corporation in Landlord to any entity
not affiliated with Tenant which engages in the manufacture of fiber-cement
products, provided, however, that, except as set forth above, such restriction
shall not apply to any sale of substantially all of the assets of Landlord or to
any sales or encumbrances of ownership interests in Landlord.
Section 29.2. Modifications in Writing. No modification, waiver or
amendment of this Lease or of any of its conditions or provisions shall be
binding unless in writing signed by Landlord and Tenant.
Section 29.3. No Option; Irrevocable Offer. Submission of this instrument
for examination shall not constitute a reservation of or option for the Premises
or in any manner bind Landlord, and no lease or obligation of Landlord shall
arise until this instrument is signed and delivered by Landlord and Tenant;
provided, however, the execution and delivery of this Lease to Landlord or its
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agent by Tenant shall constitute an irrevocable offer by Tenant to lease the
Premises on the terms and conditions herein contained, which offer may not be
revoked for thirty (30) days after such delivery.
Section 29.4. Definition of Tenant. The word "Tenant" whenever used herein
shall be construed to mean Tenants or any one or more of them in all cases where
there is more than one Tenant; and the necessary grammatical changes required to
make the provisions hereof apply either to corporations or other organizations,
partnerships or other entities, or individuals, shall in all cases be assumed as
though in each case fully expressed herein. In all cases where there is more
than one Tenant, the liability of each shall be joint and several.
Section 29.5. Definition of Landlord. The term "Landlord" as used in this
Lease means only the owner or owners at the time being of the Premises so that
in the event of any assignment, conveyance or sale, once or successively, of
said Premises, or any assignment of this Lease by Landlord, said Landlord making
such sale, conveyance or assignment shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder accruing after
such sale, conveyance or assignment, and Tenant agrees to look solely to such
purchaser, grantee or assignee with respect thereto. This Lease shall not be
affected by any such assignment, conveyance or sale, and Tenant agrees to attorn
to the purchaser, grantee or assignee.
Section 29.6. Headings. The headings of Articles and Sections are for
convenience only and do not limit, expand or construe the contents of the
Sections.
Section 29.7. Time of Essence. Time is of the essence of this Lease and of
all provisions hereof.
Section 29.8. Default Rate of Interest. All amounts (including, without
limitation, Base Rent, Additional Rent, and any damages, costs, expenses,
penalties, fines, indemnity claims and related or similar amounts due under this
Lease, including, but not limited to, those amounts under Article 18 hereof,
whether the same be stipulated or otherwise) owed by Tenant to Landlord pursuant
to any provision of this Lease shall bear interest from that date which is
thirty (30) days after the date due under this Lease until paid at the annual
rate of four percent (4%) in excess of the rate of interest announced from time
to time by Guaranty Federal Bank, F.S.B., or its successor bank, as its prime,
reference or corporate base rate, changing as and when said prime rate changes,
unless a lesser rate shall then be the maximum rate permissible by law with
respect thereto in which event said lesser rate shall be charged. Any such
interest shall be in addition to any late charges incurred by Tenant under
Section 3.3 hereof.
Section 29.9. Severability. The invalidity of any provision of this Lease
shall not impair or affect in any manner the validity, enforceability or effect
of the rest of this Lease.
Section 29.10. Entire Agreement. All understandings and agreements, oral
or written, heretofore made between the parties hereto are merged in this Lease,
which alone fully and completely expresses the agreement between Landlord (and
its agents) and Tenant.
Section 29.11. Force Majeure. If Landlord fails to perform any of its
obligations hereunder, and such failure is due in whole or in part to any
strike, lockout, labor trouble, civil disorder, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, fuel shortages,
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accidents, casualties, acts of God, acts caused directly or indirectly by Tenant
(or its agents, employees, contractors, licensees or invitees) or any other
cause beyond the reasonable control of Landlord, then Landlord shall not be
deemed in default under this Lease as a result of such failure and the time for
performance by Landlord provided for herein shall be extended by the period of
delay resulting from such cause.
Section 29.12. Survival. All obligations, monetary or otherwise, accruing
prior to expiration of the Term shall survive the expiration or earlier
termination of this Lease.
Section 29.13. Relationship of Parties. This Lease does not create the
relationship of principal and agent, or of partnership, joint venture or of any
association or relationship between Landlord and Tenant, the sole relationship
between Landlord and Tenant being that of landlord and tenant.
Section 29.14. Surrender. No surrender to Landlord of this Lease or of the
Premises, or any portion thereof, or any interest therein, prior to the
expiration of the Term shall be valid or effective unless agreed to and accepted
in writing by Landlord and consented to in writing by all ground lessors and the
holders of all Mortgages, and no act or omission by Landlord or any
representative or agent of Landlord, other than such a written acceptance by
Landlord consented to by all such ground lessors and/or mortgagees, as
aforesaid, shall constitute an acceptance of any such surrender.
Section 29.15. No Merger. There shall be no merger of this Lease or the
leasehold estate created by this Lease with any other estate or interest in the
Premises by reason of the fact that the same person, firm, corporation or other
entity may acquire, hold or own directly or indirectly, this Lease or the
leasehold interest created by this Lease or any interest therein and any such
other estate or interest in the Premises or any portion thereof. No such merger
shall occur unless and until all persons, firms, corporations or other entities
having an interest (including a security interest) in this Lease or the
leasehold estate created hereby and any such other estate or interest in the
Premises or any portion thereof shall join in a written instrument expressly
effecting such merger and shall duly record the same.
Section 29.16. Governing Law. This Lease shall be governed in all respects
by the laws of the State of Texas. Should either party institute legal suit or
action for enforcement of any obligation contained herein, it is agreed that the
venue of such suit or action shall be, at Landlord's option, in Dallas County,
Texas. Tenant expressly consents to Landlord's designation of the venue of any
such suit or action. Although the provisions of this Lease were initially drawn
by the Landlord, this Lease shall not be construed either for or against
Landlord or Tenant, but this Lease shall be interpreted in accordance with the
general terms of the language in an effort to reach an equitable result.
Section 29.17. Quiet Possession. Upon Tenant paying the Rent for the
Premises and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant shall
have quiet possession of the Premises for the entire term hereof subject to all
of the provisions of this Lease. In connection therewith, Landlord warrants and
represents to Tenant that, as of the date of this Lease (a) Landlord has good
and indefeasible title to the Premises, subject to liens for ad valorem taxes
not yet due and payable, easements, and other matters which do not materially
interfere with use of the Premises as it is used on the date of this Lease; and
(b) to Landlord's knowledge, without inquiry, no litigation has been initiated
or threatened against the Landlord or the Premises which would impair the
Landlord's performance of this Lease.
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Section 29.18. Landlord's Lien Waiver. Landlord hereby expressly waives
and disclaims any statutory, constitutional or contractual lien benefitting
Landlord for rent, damages and costs pursuant to Texas statutes or otherwise.
Section 29.19. Intent - Triple Net Lease. Except as otherwise expressly
set forth herein, this Lease shall be deemed to be construed as a triple net
lease and any and all expenses and obligations in connection with the Premises
and the operation thereof will be the obligation of Tenant.
Section 29.20. Usury. Notwithstanding any provision contained herein to
the contrary, if any interest rate specified in this Lease is higher than the
rate then permitted by law, such interest rate specified herein shall
automatically be adjusted from time to time to the maximum rate permitted by
law.
Section 29.21. Financial Statements. Any successor or assign of Tenant
shall promptly furnish Landlord when available, annual financial statements
(which are prepared and audited consistent with the policies and procedures of
such successor or assign reflecting its current financial condition).
Section 29.22. Consents and Approvals. Whenever Tenant requests Landlord
to take any action or give any consent or approval, Tenant shall reimburse
Landlord for all of Landlord's reasonable costs incurred in reviewing the
proposed action or consent (whether or not Landlord consents to any such
proposed action), including, without limitation, reasonable attorneys' or
consultants' fees and expenses, within thirty (30) days after Landlord's
delivery to Tenant of a statement of such costs. If it is determined that
Landlord failed to give its consent or approval where it was required to do so
under this Lease, Tenant's sole remedy will be an order of specific performance
or mandatory injunction of Landlord's agreement to give its consent or approval.
The review and/or approval by Landlord of any item shall not impose upon
Landlord any liability for accuracy or sufficiency of any such item or the
quality or suitability of such item for its intended use. Any such review or
approval is for the sole purpose of protecting Landlord's interest in the
Premises, and neither Tenant nor any person or entity claiming by, through or
under Tenant, nor any other third party shall have any rights hereunder by
virtue of such review and/or approval by Landlord.
Section 29.23. Option to Purchase. Landlord hereby grants Tenant an option
to purchase the Premises, or so much thereof as may remain after any partial
condemnation (in which case such purchase price will be proportionally adjusted
if more than five percent (5%) of the land comprising the Premises was taken,
except to the extent the proceeds thereof were distributed to Tenant in
accordance with Article 17), and all fixtures and personal property therein on
an "AS-IS" basis as of the Expiration Date for Eight Million and 00/100 Dollars
($8,000,000) and otherwise on the terms and conditions set forth herein,
provided that Landlord has not terminated this Lease or Tenant's right of
possession of the Premises under Article 18 and there exist no Events of Default
or events which, with the lapse of time, the giving of notice, or both, would
constitute an Event of Default at the time of Tenant's exercise of the option
herein granted or as of the Expiration Date. In the event Tenant desires to
exercise the option herein granted, it shall furnish Landlord written notice of
its intent to do at least six (6) and not more than twelve (12) months prior to
the Expiration Date. Upon delivering such notice, Tenant agrees that it shall be
bound and obligated to purchase the Premises as set forth herein. Tenant agrees
and acknowledges that Landlord shall be obligated to deliver only a special
warranty deed conveying good and indefeasible fee simple title to the Purchaser,
subject to all covenants, conditions and restrictions of record, and free of any
liens claimed by, through or
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under Landlord. Tenant and Landlord shall each pay one half of all escrow fees
and recording costs. Landlord shall pay all title insurance premiums and
reasonable costs for a survey prepared by a surveyor acceptable to Landlord and
Tenant. Tenant shall pay all other costs and expenses of consummating its
purchase of the Premises including, without limitation, any transfer taxes.
Tenant acknowledges that the option granted herein is personal to Tenant and may
not be assigned without the written consent of Landlord in its sole and absolute
discretion (except to an Affiliate of Tenant under Section 14.1).
Section 29.24. Right of First Refusal. In the event Landlord or any
successor or assign is prepared to make a written proposal to or accept a
proposal from a third party to purchase the Premises during the Term, Landlord,
for itself and on behalf of such successors and assigns, hereby grants to Tenant
and to its successors and permitted assigns the continuing right to purchase the
Premises on the same terms and conditions contained in said proposal. Landlord
shall deliver the proposal to Tenant and Tenant shall have ten (10) business
days from the date of delivery of the proposal to exercise its right to purchase
the Premises on the terms and conditions set forth in the proposal by delivering
to Landlord a copy of the proposal which has been signed by Tenant. In the event
Tenant does not timely exercise its right to purchase the Premises within said
ten (10) business day period and Landlord fails to consummate the sale thereof
to the third party in accordance with such third party proposal, Tenant's right
of first refusal hereunder shall apply to subsequent proposals. Tenant's failure
to exercise such right within such ten (10) day period shall entitle Landlord to
sell the Premises only in accordance with such third party proposal, free and
clear of Tenant's rights under this Section 29.24.
ARTICLE 30
DEFINITIONS
The following terms have the meanings ascribed to them in the Sections set
forth below:
ADA Section 8.4
Additional Rent Section 3.1(b)
Affiliate Section 14.1
Base Rent Section 3.1(a)
Bond-Financed Project Article 1
Bonds Article 1
CAA Section 27.1(b)
Calculation Date Section 18.5
CERCLA Section 27.1(b)
Claim Section 27.1
Commencement Date Section 2.1
Contracts Section 2.4(a)
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Controlling Section 14.1
Environmental Laws Section 27.1 (b)
Event of Default Section 18.1
Excluded Taxes Section 4.2
Expiration Date Section 2.1
FIFRA Section 27.1(b)
Fire Underwriters Requirements Section 8.4
First Mortgage Section 19.1
FWPCA Section 27.1(b)
Guarantor Section 5.1
Hazardous Materials Section 27.1(c)
HMRA Section 27.1(b)
Impositions Section 4.2
Landlord Section 30.5
Landlord Guaranty Section 5.2
Landlord Option Date Section 18.8(b)(vii)(A)
Leased Equipment Section 2.3(f)
Legal Requirements Section 8.4
Loan Agreement Section 6.5
Manage Section 27.1(d)
Mortgage or Mortgages Section 19.1
Net Worth Section 5.1
Non-Structural Alterations Article 13
Permitted Uses Section 6.1
Personal Property Section 2.3(a)
Personal Property Taxes Section 4.8
Premises Article 1
Prohibited Use Section 6.2
RCRA Section 27.1(b)
Raw Materials Section 2.3(c)
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Release or Released Section 27.1(e)
Rent Section 3.2
Rent Taxes Section 4.8
Rents Section 3.1
Response or Respond Section 27.1(f)
Security Deposit Section 5.1
Spare Parts Section 2.3(d)
Surplus Equipment Section 2.3(b)(ii)
Tenant Section 30.4
Tenant Guaranty Section 5.1
Term Section 2.1
TSCA Section 27.1(b)
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the date first written.
LANDLORD:
FORTRA FIBER-CEMENT L.L.C., a Delaware
limited liability company
By: /s/ Harold C. Maxwell
-------------------------------------
Harold C. Maxwell, President
TENANT:
JAMES HARDIE BUILDING PRODUCTS, INC., a
Nevada corporation
By: /s/ Louis Gries
-------------------------------------
Louis Gries, President
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EXHIBIT "A"
Property Description
BEING all that certain lot, tract or parcel of land lying in the A.W.
BROWN SURVEY, A-102; A.S. PRUETT SURVEY, A-848; J. SHAVER SURVEY, A-1000;
and in the J. STARRETT SURVEY, A-1024, in City of Waxahachie, Ellis
County, Texas, and being a part of a called 94.448 acre tract of land as
conveyed to TX-WYO, INC., by deed and recorded in Volume 809, Page 998,
Deed Records, Ellis County, Texas, (DRECT), and being more particularly
described as follows:
BEGINNING at a railroad spike found in the east line of the M.K. & T.
Railroad for the most westerly northwest corner of this tract and same for
the aforesaid tract and also being the most southwesterly southwest corner
of a called THIRD TRACT (43.19 acres) of land as described by deed and
recorded in Volume 619, Page 170, DRECT;
THENCE S 89"40'51" E, 360.70 feet (Deed - S 89"34'30" E, Same Distance)
along the upper north line of this tract and same for the aforesaid tract
and along the lower south line of the called 43.19 acre tract to a 1/2"
steel rod found for the westerly northeast corner of this tract and same
for the aforesaid tract and being the westerly southeast corner of the
called 43.19 acre tract and also lies in the west line of Block B of the
North Waxahachie Industrial Park addition to the City of Waxahachie
according to the plat thereof recorded in Cabinet B. Slides 160-162, Plat
Records, Ellis County, Texas, (PRECT);
THENCE S 00"43'28" W, (Deed - S 01"01'30" W, 327.11') along the upper
east line of this tract and same for the aforesaid tract and along the
west line of the aforesaid Block B at approximately 84 feet pass the
southwest corner of said Block B and northwest corner of Block A, in all,
327.04 feet to a 5/8" steel rod found for the interior northwest corner of
this tract and same for the aforesaid tract and being the southwest corner
of the said Block A;
THENCE S 89"58'15" E, 1708.79 feet along the lower north line of this
tract and same for the aforesaid tract and along the south line of Block A
of said addition to a 1/2" steel rod found for the northeast corner of
this tract and being in the south line of said addition and also being the
northwest corner of a called 0.57 acre tract of land as described by deed
and recorded In Volume 609, Page 616, DRECT;
THENCE S 14"47'39" W, along the east line of this tract and same for the
aforesaid tract at approximately 72.5 feet pass the southwest corner of
the called 0.57 acre tract and the northwest corner of a called 0.57 acre
tract of land conveyed to Ralph A. Holder by deed and recorded in Volume
673. Page 086, DRECT, at approximately 175.7 feet pass the northwest
corner of the Holder 0.57 acre tract and the northwest corner of a called
0.57 acre tract of land conveyed to David W. Flanagan by deed and recorded
in Volume 570, Page 632, Deed of Trust Records, Ellis County, Texas, all,
279.01 feet (Deed - S 15"03'20" W, 279.09 feet) to a 1/2" steel rod found
for an east corner of this tract and same for the aforesaid tract and
being the southwest corner of the said Flanagan 0.57 acre tract;
THENCE S 74"29'50" E, 06.53 feet ( Deed - S 74"11'00" E, Same Distance )
along an east line of the aforesaid tract and same for this tract and
along the south line of the called Flanagan 0.57 acre tract to a 1/2"
steel rod set for an east corner of this tract and same for the aforesaid
tract and being the northwest corner of a called 0.50 acre tract of land
as described by deed and recorded in Volume 570, Page 832, DRECT;
THENCE S 15"01'49" W, 124.36 feet ( Deed - S 15"20'00" W, Same Distance )
along the west line of the called 0.50 acre tract and the east line of
this tract to a 1/2" steel rod found for an easterly corner of this tract
and same for the aforesaid tract and being the southwest corner of the
called 0.50 acre tract;
THENCE S 75"19'02" E, 173.36 feet ( Deed - S 74"58'00" E, 173.45 feet )
along an easterly north line of this tract and same for the aforesaid
tract and along the south line of the called 0.50 acre tract to a 1/2"
steel pipe found in the current west line of U.S. Highway 77 for the lower
northeast corner of this tract and easterly corner of the aforesaid tract
and being the southeast corner of the called 0.50 acre tract;
THENCE S 14"57'45" W, 360.35 feet ( Deed - S 15"14'00" W ) ( NOTE:
Bearings for this description from Texas Co-ordinate System, North Central
Zone, NAD 27, and provided by the Texas Department of Transportation,
Waxahachie Office ) along the east line of this tract and same for the
aforesaid tract to a 1/2" steel rod set for the southeast corner of this
tract;
THENCE N 89"58'15" W, 2444.82 feet through the aforesaid 94.448 parent
tract of land to a 1/2" steel rod set in the west line of the aforesaid
parent tract and cast line of the said M.K. & T. Railroad for the
southwest corner of this tract;
THENCE N 16"57'48" E, 1180.01 feet ( Deed - N 17"15'20" E ) along the west
line of the aforesaid tract and same for this tract and along the east
line of the said M.K. & T. Railroad to the POINT OF BEGINNING and
containing approximately 45.490 acres of land.
SAVE AND EXCEPT:
BEING 0.07824 hectares [0.1933 acres] of land, more or less, situated in the
Albert S. Pruitt Survey, Abstract Number 848, City of Waxahachie, Ellis County,
Texas, and being situated in a portion of a called 45.490 acre tract of land
described in instrument to Temple/Re-Con Inc., as recorded in Volume 1315, Page
96, of the Deed Records of Ellis-County, Texas (DRECT), said 0.07824 hectares
[0.1933 acres] of land being more particularly described by metes and bounds as
follows:
COMMENCING for reference at a found 1/2-inch iron rod in an easterly line of
said 45.490 acre tract, same being the southwest corner of a called 0.499 acre
tract of land described in instrument to Fred Marvin Graham, and wife, Mary
Louise Graham, as recorded in Volume 570, Page 832, DRECT;
THENCE S 75(degrees)13'42" E, along a north line of said 45.490 acre tract and
the south line of said 0.499 acre tract, a distance of 52.742 meters [173.04
feet] to the southeast corner of said 0.499 acre tract and being in the existing
western right of way line of U.S. Highway 77, from which a found 1/2-inch iron
pipe bears S 75(degrees)13'42" E, a distance of 0.100 meters [0.33 feet];
THENCE S 14(degrees)55'27" W, along the eastern line of said 45.490 acre tract
and along the existing western right of way line of U.S. Highway 77, a distance
of 15.578 meters [51.11 feet] to a 5/8-inch iron rod with an aluminum disk
marked Texas Department of Transportation (TxDOT) set in the new western right
of way line of U.S. Highway 77 for the POINT OF BEGINNING;
(1) THENCE S 14(degrees)55'27" W, along the existing western right of
way line of U.S. Highway 77, a distance of 94.300 meters [309.38
feet] to a 1/2-inch iron rod found for the southeast corner of said
45.490 acre tract, same being the remainder north line of a called
94.448 acre tract of land described in instrument to TX-WYO, Inc. as
recorded in Volume 809, Page 998, DRECT;
(2) THENCE N 89(degrees)58'08" W, along the south line of said 45.490
acre tract, a distance of 17.202 meters [56.44 feet] to a 5/8-inch
iron rod with an aluminum disk marked TxDOT set in the new western
right of way line of U.S. Highway 77;
(3) THENCE N 23(degrees)50'19" E, along the new western right of way
line of U.S. Highway 77, a distance of 12.235 meters [40.14 feet] to
a set 5/8-inch iron rod with an aluminum disk marked TxDOT;
(4) THENCE N 24(degrees)43'38" E, along the new western right of way
line of U.S. Highway 77, a distance of 69.969 meters [229.56 feet]
to a set 5/8-inch iron rod with an aluminum disk marked TxDOT;
(5) THENCE N 23(degrees)57'59" E, along the new western right of way
line of U.S. Highway 77, a distance of 17.909 meters [58.76 feet] to
the POINT OF BEGINNING, and containing 0.07824 hectares [0.1933
acres] of land area, more or less, within these metes and bounds.
EXHIBIT B
SCHEDULE OF PERSONAL PROPERTY
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
MCC Room
0321 Cabinet
0322 Cabinet
0323 Cabinet
0324 Desk
Storeroom
0325 Chair
0326 Cabinet
0327 Cabinet
0328 Cabinet
Production
0329 Cabinet
0330 Stool
0331 Stool
0332 Upright Cabinet
0333 Desk
0334 Upriqht Cabinet
0335 Shelf
0336 Shelf
0337 Shelf
0338 Shelf
0339 Shelf
0340 Shelf
0341 Shelf
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
QA Lab
0342 Shelf
0343 Shelf
0344 Shelf MCC Room
0345 Stool
0346 File Cabinet
0347 Desk
0348 Bookshelf
0349 Desk
0350 Stool
0351 Computer Desk
0352 Chair
0353 Shelf
0354 Shelf
0355 Work Table
0356 Table
0357 Chair
0358 Stool
0359 Stool
0360 Table
0361 Table
0362 Table
0363 Table
0364 Table
Production Conference Room
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0365 Upright Cabinet
0366 Upright Cabinet
0367 Desk
0368 File Cabinet
0369 File Cabinet
0370 File Cabinet
0371 File Cabinet
0372 File Cabinet
0373 Table Conference Room
0374 Chair
0375 Chair
0376 Chair
0377 Chair
0378 Chair
0379 Chair
0380 Chair
0381 Chair
0382 Chair
0383 Chair
0384 Chair
0385 Chair
0386 Chair
0387 Chair
Production Office & Conference Room
0388 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0389 Chair
0390 Chair
0391 Chair
0392 Chair
0393 Chair
0394 Chair
0395 Chair
0396 Chair
0397 TV Stand
0398 File Cabinet
0399 File Cabinet
0400 Bookshelf
0401 Table
0402 Desk
0403 Desk
0404 Desk
0405 Stool
0406 Chair
0407 Chair
0408 Chair
0409 Chair
0410 Chair
Production Office
0411 Cabinet
0412 Telephone Stand
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0413 BookShelf
0414 BookShelf
0415 Chair Desk
0416 Chair Desk
0417 Chair
0418 Chair
0419 Chair
0420 Chair
0421 Desk
0422 BookShelf
0423 File Cabinet
0424 File Cabinet
0425 File Cabinet
0426 File Cabinet
0427 File Cabinet
0428 File Cabinet
0429 BookShelf
0430 BookShelf
0431 Chair
0432 Desk
0433 File Cabinet
0434 Chair
0435 File Cabinet
0436 Chair
0437 Desk
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0438 BookShelf
0439 Chair
0440 Bookshelf
0441 Refrigerator
0442 File Cabinet
0443 File Cabinet
0444 Computer Table
0445 Chair
0446 Chair
0447 File Cabinet
0448 BookShelf
0449 Desk
0450 Chair
0451 Desk
0452 BookShelf
0453 BookShelf
0454 Table
0455 Chair
0456 Chair
Maintenance Office
0457 Chair
0458 Desk
0459 File Cabinet
0460 Desk
0461 Chair
0462 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0463 Chair
0464 Chair
0465 BookShelf
0466 BookShelf
0467 BookShelf
0468 File Cabinet
0469 Desk
0470 File Cabinet
0471 Chair
0472 Desk
0473 Chair
0474 Chair
0475 Shelf
0476 Shelf
0477 File Cabinet
0478 File Cabinet
0479 File Cabinet
0480 Maintenance File Cabinet
0481 Chair
0482 Desk
0483 File Cabinet
0484 Desk (2 Piece)
0485 BookShelf
0486 Small Cabinet
0487 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0488 Table
0489 Table
0490 Chair
0491 Desk
0492 Upright Cabinet
0493 Upright Cabinet
0494 Desk
0495 File Cabinet
0496 Chair
0497 Desk
0498 Desk
0499 Maintenance Office Chair
0500 _________________________________________________________
0501 _________________________________________________________
0502 _________________________________________________________
0503 _________________________________________________________
0504 _________________________________________________________
0505 _________________________________________________________
0506 _________________________________________________________
0507 _________________________________________________________
0508 _________________________________________________________
0509 _________________________________________________________
0510 _________________________________________________________
0511 _________________________________________________________
0512 _________________________________________________________
Fortra Fiber-Cement LLC
Office Equipment Listing
0712 _________________________________________________________
0713 _________________________________________________________
0714 _________________________________________________________
0715 _________________________________________________________
0716 _________________________________________________________
0717 _________________________________________________________
0718 _________________________________________________________
0719 _________________________________________________________
0720 _________________________________________________________
0721 _________________________________________________________
0722 _________________________________________________________
0723 _________________________________________________________
0724 _________________________________________________________
0725 _________________________________________________________
0726 _________________________________________________________
0727 _________________________________________________________
0728 _________________________________________________________
0729 _________________________________________________________
0730 _________________________________________________________
0731 _________________________________________________________
0732 Desk
0733 Chair
0734 Desk
0735 File Cabinet
0736 Book Case
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0737 File Cabinet
0738 Chair
0739 Chair
0740 Chair
0741 Book Case
0742 Book Case
0743 Chair
0744 Chair
0745 Table
0746 Plant Stand
0747 Chair
0748 File Cabinet
0749 File Cabinet
0750 File Cabinet
0751 Chair
0752 Chair
0753 _________________________________________________________
0754 _________________________________________________________
0755 _________________________________________________________
0756 _________________________________________________________
0757 _________________________________________________________
0758 _________________________________________________________
0759 _________________________________________________________
0760 _________________________________________________________
0761 _________________________________________________________
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0762 _________________________________________________________
0763 _________________________________________________________
0764 _________________________________________________________
0765 _________________________________________________________
0766 _________________________________________________________
0767 _________________________________________________________
0768 _________________________________________________________
0769 _________________________________________________________
0770 _________________________________________________________
0771 _________________________________________________________
0772 File Cabinet
0773 File Cabinet
0774 Chair
0775 Desk
0776 Chair
0777 Stool
Destack
0778 Chair
0779 Desk
0780 File Cabinet
0781 Desk
Finishing Office
0782 File Cabinet
0783 File Cabinet
0784 Chair
0785 Desk
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0786 Table
0787 Label Stand
0788 Desk
0789 Chair
0790 Chair
0791 Computer Stand
0792 Desk
MCC Room
0793 Chair
0794 Desk
John White
0795 Desk
0796 Chair
0797 Credenza
0798 File Cabinet
0799 Book Case
0800 Chair
0801 Chair
Regina Office
0802 Desk (Wrap Around)
0803 Chair
0804 Desk
0805 File Cabinet
0806 Bookcase
0807 Chair
0808 Plant Stand
0809 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0810 Chair
0811 Table
0812 Chair
Ed Welch Office
0813 Desk
0814 Chair
0815 File Cabinet
0816 Chair
0817 Chair
0818 Chair
0819 Bookcase
0820 Chair
0821 Chair
0822 Table
0823 Chair
Del McLane's Office
0824 Chair
0825 Desk
0826 Chair
0827 Desk
0828 File Cabinet
0829 Bookcase
0830 File Cabinet
0831 Chair
0832 Chair
0833 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0834 Bookcase
0835 Bookcase
0836 Chair
0837 Chair
0838 Table
Russell Hill's Office
0839 Plant Stand
0840 Chair
0841 Desk
0842 File Cabinet
0843 File Cabinet
0844 File Cabinet
0845 Chair
0846 Chair
0847 Bookcase
0848 Bookcase
Front Office Conference Room
0849 Coffee Server Table
0850 Entertainment Center
0851 Conference Table
0852 Chair
0853 Chair
0854 Chair
0855 Chair
0856 Chair
0857 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0858 Chair
0859 Chair
0860 Chair
0861 Chair
0862 Chair
0863 Chair
0864 Chair
0865 Chair
Front Office Lobby
0866 Chair
0867 Chair
0868 Display Table(Server)
0869 Chair
0870 Chair
0871 Coffee Table
Reception Area Office
0872 Chair
0873 Desk
0874 File Cabinet
0875 File Cabinet
0876 File Cabinet
0877 Chair
0878 BookCase
0879 File Cabinet
0880 Chair
0881 Desk
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
Jeff Faganello Office
0882 Plant Stank
0883 Chair
0884 Chair
0885 File Cabinet
0886 Computer Desk
0887 Chair
0888 Desk
0889 Chair
0890 Chair
0891 Bookcase
0892 Coat Rack
0893 Chair
0894 Chair
0895 Table
Human Resource Office
0896 Chair
0897 Chair
0898 Credenza
0899 Bookcase
0900 File Cabinet
0901 File Cabinet
0902 File Cabinet
0903 Desk
0904 Chair
0905 Computer Center
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0906 Chair
0907 Chair
0908 Chair
0909 Chair
0910 Table
Office Supplies/copy room
0911 Labeling Stand
0912 Computer Stand
0913 Cabinet
0914 Cabinet
0915 Cabinet
0916 Cabinet
0917 File Cabinet
0918 File Cabinet
0919 Chair
0920 Rolling Table
0921 Table
0922 Table
David Seago's Office
0923 Bookcase
0924 Chair
0925 Chair
0926 File Cabinet
0927 Desk
0928 Lamp
0929 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0930 Bookcase
0931 File Cabinet
0932 Table
0933 Chair
0934 Chair
0935 Chair
0936 Chair
Ron Tews Office
0937 BookShelf
0938 Table
0939 Chair
0940 Chair
0941 Chair
0942 Chair
0943 Chair
0944 Chair
0945 Chair
0946 Chair
0947 Coat Rack
0948 File Cabinet
0949 Chair
0950 Lamp
0951 End Table
0952 BookShelf
0953 Plant Stand
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0954 Lamp
0955 Lamp Stand
0956 Chair
0957 Desk
0958 Chair
0959 End Table
0960 Chair
Accounting Area
0961 File Cabinet
0962 File Cabinet
0963 File Cabinet
0964 File Cabinet
0965 Computer Cabinet
0966 Lamp
0967 File Cabinet
0968 Chair
0969 Desk
0970 Chair
0971 Chair
0972 BookCase
0973 Chair
0974 Desk
0975 Desk
0976 Chair
0977 File Cabinet
0978 Chair
FORTRA FIBER-CEMENT, LLC
Office Equipment Listing
0979 Chair
0980 Desk
0981 Chair
0982 Table
0983 File Cabinet
0984 File Cabinet
0985 File Cabinet
0986 File Cabinet
0987 File Cabinet
0988 File Cabinet
Heath White's Office
0989 BookShelf
0990 Chair
0991 End Table
0992 Chair
0993 Desk
0994 Dry Erase Cabinet
0995 File Cabinet
0996 File Cabinet
0997 Credenza
0998 Plant Stand
0999 Chair
1000 Desk
MACHINERY & EQUIPMENT
SAND SLURRY SILO LEVEL CONTROL-LINE 1
SAND SLURRY DENSITY CONTROL-LINE 1
SAND SLURRY SILO AGITATOR "B"-LINE 1
SAND SLURRY SILO "B"LINE 1
SAND SLURRY PUMP-LINE 1
SAND SLURRY TANK (BAIL MILL OUTFEED)
SAND SLURRY PUMP (STANDBY)
SAND SLURRY HEADBOX
SAND SLURRY DENSITY CONTMILL O/F (WH # 2 QUOTE)
SAND SLURRY DENSITY CONT-MILL O/F (WH # 1 QUOTE)
SAND SLURRY PUMP (EXTRA)
SAND SLURRY PUMP
SAND MILL CHARGE
SAND SLURRY SCREEN (BAIL MILL OUTFEED)
SAND SLURRY SILO AGITATOR "A"-LINE 1
SAND MILL DRIVE
SAND MILL
SAND MILL CHARGE HOIST SYSTEM
SAND MILL FEEDER
SAND WEIGHING CON-VEYOR
SAND MILL CHARGING HOPPER
DISPERGING TANK PUMPLINE 2
WATER DOSING TANK-LINE 2
DISPERGING LEVEL CONTROL& VALVES-LINE 2
FIBER DISPERGING TNKLINE 2
FIBER FEED CONVEYOR "B"-LINE 2
FIBER FEED CONVEYOR "A"-LINE 2
FIBER SLURRY SILO "A"-LINE 2
FIBER SLURRY SILO "B"-LINE 2
TE FIBER SLURRY STORAGESILO PU
SAND SLURRY SILO "A"-LINE 2
FIBER SLURRY VALVES & LEVEL CONTROL-LINE 2
TE FIBER SLURRY SILO "A"-LIN
FIBER SLURRY STORAGESILOPUMP-LINE 2
FIBER SLURRY STORAGESILOAGITATOR "A"-LINE 2
TE FIBER SLURRY STORAGESILO AG
FIBER REFINER "B"-LINE 2
TE FIBER REFINER "B"-LINE 2
FIBER REFINER "A"-LINE 2
TE FIBER REFINER "A"-LINE 2
FIBER SLURRY PUMP "B"-LINE 2
FIBER SLURRY PUMP "A"-LINE 2
TE FIBER SLURRY PUMP "A"-LIN
TE FIBER SLURRY VALVES &LEVEL
SAND SLURRY SILO "A"LINE1
PRODUCTION TEST RUNS@ BGC
TE PRODUCTION TEST RUNS@BGC
BGC ON-SITE START-UPASSISTANCE
TE BGC ON-SITE START-UPASSISTA
BGC OPERATIONAL CON-SULTING FEES
TE BGC OPERATIONAL CON-SULTING
VENDOR ENGINEERING
TE VENDOR ENGINEERING
DISPERGING TANK PUMPLINE 1
WATER DOSING TANK LINE 1
Description
DISPERGING LEVEL CTL& VALVES LINE 1
FIBER DISPERGING TNKLINE1
FIBER FEED CONVEYOR "B" LINE 1
FIBER FEED CONVEYOR "A" LINE 1
FIBER SLURRY SILO"A"LINE1
FIBER SLURRY SILO"B"LINE1
FIBER SILO PUMP (STANDBY)
TE FIBER SILO PUMP (STANDB
TE FIBER SLURRY STORAGESILO "B
FIBER SLURRY VALVES & LEVEL CONTROL-LINE 1
TE FIBER SLURRY VALVES & LEVEL
FIBER SLURRY STORAGESILOPUMP-LINE 1
TE FIBER SLURRY STORAGESILO PU
FIBER SLURRY STORAGESILOAGITATOR "B"-LINE 1
TE FIBER SLURRY STORAGESILO AG
FIBER SLURRY STORAGESILOAGITATOR "A"-LINE 1
TE FIBER SLURRY SILO"A" LINE 1
FIBER SLURRY STORAGESILO"B"-LINE 1
FIBER SLURRY STORAGESILO"A"-LINE 1
TE FIBER SLURRY STORAGESILO "A
FIBER REFINER "B" LINE1
TE FIBER REFINER "B" LINE 1
FIBER REFINER "A" LINE1
TE FIBER REFINER "A" LINE 1
FIBER SLURRY PUMP"B"LINE1
FIBER SLURRY PUMP"A"LINE1
TE FIBER SLURRY PUMP"A"LINE1
TE FIBER SLURRY STORAGESILO AG
TE FIBER CONSISTENCY METER 1
FIBER CONSISTENCY METER 1
CAP INTEREST-PROD EQUIP (15 YR) UOP
CAP INTEREST-PROD EQUIP (2 YR) UOP
FIBER FLOW METER, LINE2
FIBER FLOW METER, LINE1
ELECTRICAL INSTALL- ATION
TE ELECTRICAL INSTALL- ATION
MECHANICAL INSTALLA-TION
TE MECHANICAL INSTALLA-TION
RECUPERATOR TANK "B"LINE2
TE RECUPERATOR TANK "B"LINE 2
RECUPERATOR TANK "A"LINE2
TE RECUPERATOR TANK "A"LINE 2
CEMENT DOSING SCREW -LINE 2
TE RECUPERATOR TANK "A"-LIN
ADDTIVE DOSING SCREW"B"-LINE2
RECUPERATOR TANK "B"-LINE 1
RECUPERATOR TANK "A"-LINE 1
ADDTIVE DOSING SCREW"B"-LINE 1
ADDTIVE DOSING SCREW"A"-LINE 1
CEMENT DOSING SCREW LINE1
CEMENT SILO DISCHARGER-LINE 1
CEMENT SILO-LINE 1
TE RECUPERATOR TANK "B"-LIN
CEMENT SILO-LINE 2
SAND SLURRY SILO LEVEL CONTROL-LINE 2
SAND SLURRY DENSITY CONTROL-LINE 2
SAND SLURRY PUMP -LINE 2
SAND SLURRY SILO AGITATOR "A"-LINE 2
ADDTIVE DOSING SCREW"A"-LINE 2
ADDITIVE "A" SILO (ALUMINA TRIHYDRATE)
ADDITIVE "B" SCALES W/CONTAINER & DISCHARGE SCREW
ADDITIVE "B" SILO (CALCIUM BENTONITE)
Description
ADDITIVE "A" SCALES W/CONTAINER & DISCHARGE SCREW
FIBER-CEMENT SLURRY PUMP"B"-LINE 2
FIBER-CEMENT SLURRY PUMP"A"-LINE 2
TURBOPULPER "B"- LINE2
TURBOPULPER "A"- LINE2
CEMENT BATCHER-LINE2
ADDITIVES BATCHER LINE2
FIBER SLURRY BATCHERLINE2
SAND SLURRY/WATER BATCHER-LINE 2
HOMIGINIZED CONTROL VALVENTROL
METERING PUMP "A" -LINE 2 (SCOPE ADDITION)
HOMOGENIZER PUMP- LINE2
MECHANICAL INSTALLA-TION
TE MECHANICAL INSTALLA-TION
CONTROL VALVES & LVLCONTROLS-LINE 2
TE CONTROL VALVES & LVLCONTROL
FLOCCULANT DOSING PUMP-LINE 2
TE FLOCCULANT DOSING PUMP-L1
FLOCCULANT TANK "B"-LINE2
TE FLOCCULANT TANK "B"-LINE 2
STOCK CHEST "A"-LINE2
TE FLOCCULANT TANK 'A"-LINE 2
STOCK CHEST MIXR "A"-LINE 2
HOMOGENIZER-LINE 2
TE HOMOGENIZER-LINE 2
METERING PUMP "B" -LINE 2 (SCOPE ADDITION)
TE METERING PUMP "B" -LINE 2
STOCK CHEST MIXR "B"-LINE 2
TE STOCK CHEST MIXR "B"-LINE 2
STOCK CHEST "B"-LINE2
TE STOCK CHEST "B"-LINE2
FLOCCULANT TANK'A"-LINE2
TURBOPULPER "A"-LINE1
TE CONTROL SYS-LINE 2 (WH SUP
FIBER-CEMENT SLURRY PUMP "B" -LINE 1
TURBOPULPER "B"-LINE1
CEMENT BATCHER-LINE1
ADDITIVES BATCHER -LINE 1
FIBER SLURRY BATCHER-LINE 1
SAND SLURRY WATER BATCHER-LINE 1
STRUCTURAL STEEL
TE STRUCTURAL STEEL
EQUIPMENT FOUNDATION
TE EQUIPMENT FOUNDATION
FIBER-CEMENT SLURRY PUMP"A"-LINE 1
TE CONTROL SYS-LINE 1 (WH SUP
Description
STRUCTURAL STEEL
TE STRUCTURAL STEEL
EQUIPMENT FOUNDATION
TE EQUIPMENT FOUNDATION
ELECTRICAL INSTALLA-TION
TE ELECTRICAL INSTALLA-TION
CONTROL SYS-LINE 2 (WH SUPPLIED)
CONTROL SYS-LINE 1 (WH SUPPLIED)
TE 480 VOLT MCC-LINE 1
STOCK PRESS CONTROL SYSTEUPPLIED)
480 VOLT MCC-LINE 1
ELECTRICAL INSTALLA-TION
TE ELECTRICAL INSTALLA-TION
TE SEAL WATER PUMP LINE 1
CONTROL SYS-LINE 1 (WH SUPPLIED)
TE CONTROL SYS-LINE 1 (WH SUP
480 VOLT MCC-LINE 1
TE 480 VOLT MCC-LINE 1
SEAL WATER PUMP LINE 1
FORMING ROLLER-12 FLATLINE 1
TE FORMING ROLLER-12 FLAT LI
Description
CUTTING TOOL 9-1/2" LINE 1
TE CUTTING TOOL 9-1/2" LINE 1
CUTTING TOOL 7-1/2" LINE 1
TE CUTTING TOOL 7-1/2" LINE 1
TE 480 VOLT MCC-LINE 2
480 VOLT MCC-LINE 2
TE ELECTRICAL INSTALLA-TION
ELECTRICAL INSTALLA-TION
CONTROL SYS-LINE 2 (WH SUPPLIED)
TE CONTROL SYS-LINE 2 (WH SUP
480 VOLT MCC-LINE 2
TE 480 VOLT MCC-LINE 2
SEAL WATER PUMP LINE 2
TE SEAL WATER PUMP LINE 2
SHEET TAKE-OFF CONV "A"-LINE 2
FULL REJECT SHEET SHREDRLINE 2
TE FULL REJECT SHEET SHREDR LI
SHEETING MACHINE - LINE 2 (INCL 500M IN WH DISCOUNT)
TE SHEETING MACHINE SIEVE C
(VACUUM PUMP SYSTEM LINE 2 (WITH
TE SHEET TAKE-OFF CONV "A"-LIN
UNDERFLOW RETURN WATER PUMP-LINE 2
TE UNDERFLOW RETURN WATER PUMP
SIEVE WATER PUMP "B"-LINE 2 (STAND-BY)
Description
TE SIEVE WATER PUMP "B"-LINE 2
SIEVE WATER PUMP "A"-LINE 2
TE SIEVE WATER PUMP "A"-LINE 2
OVERFLOW PUMP-LINE 2
TE SHEETING MACHINE - LINE 2
VACUUM PUMP SYSTEM LINE2TH BASE)
SHEET MACHINE VARIBLMAINDRIVE-LINE 2
TE SHEET MACHINE VARIBLMAIN DR
FORMING ROLLER-12' FLATLINE 2
TE FORMING ROLLER-12' FLAT LI
FORMING ROLLER-16' FLATLINE 2
TE FORMING ROLLER-16' FLAT LI
SHEETING MACHINE SIEVE CYLINDERS-LINE 2 (SPARES)
TE SHEETING MACHINE SIEVE C
SHEETING MACHINE SIEVE CYLINDERS-LINE 2
TE OVERFLOW PUMP-LINE 2
FORMING ROLLER-16' FLATLINE 1
TE FORMING ROLLER-16' FLAT LI
TE FULL REJECT SHEET CNVYR 2
STACKER LIFT TABLE HPU 2
TE STACKER LIFT TABLE HPU 2
TE CUTTING PRESS-LINE 2(INC 1,
TE TROLLEY PUSHER "A"- LINE 2
CUT-OFFS TANK W/MIXR-LINE 2
TE CUT-OFFS TANK W/MIXR-LINE 2
CUT-OFFS CONVERSION AT PRESS-LINE 2
TE CUT-OFFS CONVERSION AT PRES
LIFTING TABLE FIBER SHEETS-LINE 2
TE LIFTING TABLE FIBER SHEETS-
LIFTING TABLE MIXED PILE-LINE 2
HOMOGIZED CUT-OFFS PUMP-L
TROLLEY PUSHER "A"- LINE 2
TE MECHANICAL ERECTION
STACKER PLANT LINE 2
TE STACKER PLANT LINE 2
VACUUM SUCTION UNIT-LINE 2
TE VACUUM SUCTION UNIT-LINE 2
CUTTING TOOL 9-1/2" LINE 2
TE CUTTING TOOL 9-1/2" LINE 2
CUTTING TOOL 7-1/2" LINE 2
TE CUTTING TOOL 7-1/2 LINE 2
TE LIFTING TABLE MIXED PILE-LI
HOMOGIZED CUT-OFFS PUMP-L
MECHANICAL ERECTION
ADDITIONAL PRESS TROLLEYS
TE CUT-OFFS DENSITY CONTROL LI
MECHANICAL ERRECTION
TE MECHANICAL ERRECTION
Description
TE AIR PIPING (PROCESS & INSTR
EQUIPMENT FOUNDATION
TE EQUIPMENT FOUNDATION
WASH DOWN WTR PIPING
TE WASH DOWN WTR PIPING
PROCESS LIQUID & SLURRY PIPING
AIR PIPING (PROCESS & INSTRUMENTATION)
TE PROCESS LIQUID & SLURRY
PROCESS LIQUID & SLURRY PIPING
AIR PIPING (PROCESS & INSTRUMENTATION)
TE AIR PIPING (PROCESS & INSTR
TRANSFORMER-1500 KVAINCOMING/480 VOLT
SWITCHGEAR-460 VOLT
TE SWITCHGEAR-460 VOLT
SWITCHGEAR-460 VOLT
TE SWITCHGEAR-460 VOLT
SWITCHGEAR-460 VOLT
TE SWITCHGEAR-460 VOLT
SWITCHGEAR-4160 VOLT
TE SWITCHGEAR-4160 VOLT
TE TRANSFORMER-1500 KVAINCOMIN
TE TRANSFORMER-1500 KVAINCOMIN
TRANSFORMER-1500 KVAINCOMING/480 VOLT
TE TRANSFORMER-1500 KVAINCOMIN
TE MAIN INCOMING SWITCHGEAR
TRANSFORMER-1500 KVAINCOMING/480 VOLT
TE CAPACITORS
SAFETY SIGNS & EQUIPMENT
TE SAFETY SIGNS & EQUIPMENT
TE SWITCHGEAR-460 VOLT
SEWER LIFT STATIONS
TE SEWER LIFT STATIONS
PROCESS WATER PIPING
TE PROCESS WATER PIPING
FIRE PROTECT PIPING
TE AIR PIPING
TE WASH DOWN WTR PIPING
CAPACITORS
AIR PIPING
TE FIRE PROTECT PIPING
SWITCHGEAR-460 VOLT
GAS PIPING
WASH DOWN WTR PIPING
MILL WATER PIPING
HYDRAULIC PIPING
TE HYDRAULIC PIPING
WASH DOWN WATER PIPING
SWITCHGEAR-480 VOLT
TE SWITCHGEAR-480 VOLT
TE EQUIPMENT FOUNDATION
WASH DOWWN WATER PIPING
TE WASH DOWWN WATER PIPING
WASH DOWWN WATER PIPING
TE WASH DOWWN WATER PIPING
PROCESS LIQUID & SLURRY PIPING-FIBER SLURRY
TE PROCESS LIQUID & SLURRY PIP
AIR PIPING (PROCESS & INSTRUMENTATION)
EQUIPMENT FOUNDATION
TE AIR PIPING (PROCESS & INSTR
STRUCTURAL STEEL
HYDRAULIC PIPING
TE HYDRAULIC PIPING
Description
DIRTY WATER SYS IMPROVE
SUPPLEMENT TO DIRTY WTRSYS IMPROVEMENT
TE AUTOCLAVES 1 DOOR 8' X 10
CONTROL SYSTEM LINE 1 (WH SUPPLIED)
TE CONTROL SYSTEM LINE 1(WH S
480 VOLT MCC
TE 480 VOLT MCC
TE CONTROL SYSTEM LINE 2(WH S
TE AUTOCLAVE CONTROL SYSTEM (L
AUTOCLAVE CONTROL SYSTEM(LINE # 1 )
ELECTRICAL INSTALLATION
TE ELECTRICAL INSTALLATION
AUTOCLAVE CONTROL SYSTEM(LINE # 2 )
TE AUTOCLAVE CONTROL SYSTEM (L
CONTROL SYSTEM LINE 2 (WH SUPPLIED)
CURING TUNNEL DOORS AND HARDWARE
STEAM BOILER PLANT - NATURAL GAS
TE STEAM BOILER PLANT - NATURA
TRANSFER CAR NO. 2
TE TRANSFER CAR NO. 2
TRANSFER CAR NO. 1
TE TRANSFER CAR NO. 1
TE TRANSPORT TROLLEYS
TE CURING TUNNEL DOORS AND HAR
CURING TUNNEL HEATING EQUIPMENT
TE CURING TUNNEL HEATINGEQUIP
TRANSPORT TROLLEYS
CONDENSATE COLLECTING SYSTEM
TE CONDENSATE COLLECTINGSYSTE
AUTOCLAVE DRAIN SYS
TE AUTOCLAVE DRAIN SYS
AUTOCLAVES 1 DOOR 8' X 105' @ 168PSI
EQUIPMENT FOUNDATION
RAIL TRACK SYSTEM
TE RAIL TRACK SYSTEM
CURING TUNNELS
TE CURING TUNNELS
TE EQUIPMENT FOUNDATION
CONDENSATE SUMP PUMP
CONDENSATE SUMP PUMP SPARE
CONDENSATE WASTE PUMP
AUTOCLAVE TROLLEYS-16'
VIBRATION ANALYSIS EQUIP
AUTOCLAVE PRESS TROLLEYS
TOOLS & UTENSILS AL-LOWANCE
TE TOOLS & UTENSILS AL-LOWANCE
TE SHOP EQUIPMENT AL- LOWANCE
CONDUIT BENDER
Description
AIR PIPING-PROC&INST
TE AIR PIPING-PROC&INST
EQUIPMENT FOUNDATION
TE STRUCTURAL STEEL
TE EQUIPMENT FOUNDATION
STRUCTURAL STEEL
WASH DOWN WATER PIPING
TE WASH DOWN WATER PIPING
PROCESS LIQUID & SLURRY PIPING
TE PROCESS LIQUID & SLURRY
AIR PIPING (PROCESS & INSTRUMENTATION)
TE AIR PIPING (PROCESS &INSTR
MIXED PILE LIFTING TABLELINE 2
MECHANICAL ERECTION
TE MECHANICAL ERECTION
DRY PRODUCT TRANSFER CARLINE 2
TE DRY PRODUCT TRANSFER CAR LI
TE SHEET LIFTING TABLE LINE 2
TE MIXED PILE LIFTING TABLE LI
DRY PROD TRANS CAR 1
TE DRY PROD TRANS CAR 1
SHEET LIFTING TABLE LINE2
WASH DOWN WATER PIPING
HEAT ENERGY PIPING
TE HEAT ENERGY PIPING
HYDRAULIC PIPING
TE HYDRAULIC PIPING
TE WASH DOWN WATER PIPING
AIR PIPING (PROCESS & INSTRUMENTATION)
TE AIR PIPING (PROCESS &INSTR
AIR RECEIVER # 2 INCLUDED W/130100
WATER TREATMENT/CON-DENSATE
TE WATER TREATMENT/CON-DENSATE
WATER TREATMENT/PRO-CESS
TE WATER TREATMENT/PRO-CESS
TE AIR RECEIVER # 2 INCLUDE
AIR RECEIVER # 1 INCLUDED W/130100
TE AIR RECEIVER # 1 INCLUDE
AIR DRYER 2 INCLUDED W/130100
TE AIR DRYER # 2 INCLUDE
AIR DRYER # 1 INCLUDED W/130100
TE AIR DRYER # 1 INCLUDE
AIR COMPRESSOR # 3
SHOP EQUIPMENT AL- LOWANCE
MAIN INCOMING SWITCHGEAR
EQUIPMENT INSTALLA- TION
TE EQUIPMENT INSTALLATION
TE AIR COMPRESSOR # 2
TE AIR COMPRESSOR # 3
AIR COMPRESSOR # 1
TE AIR COMPRESSOR # 1
TRUCK SCALES # 2
TRUCK SCALES # 1
Description
WATER STORAGE & CON-TAINMENT
TE WATER STORAGE & CON-TAINMEN
AIR COMPRESSOR # 2
PROCESS CONTROL SY- STEMINTEGRATION
TE PROCESS CONTROL SY- STEM IN
EMERGENCY GENERATOR-SET LINE 1
TE EMERGENCY GENERATOR-SET LIN
FIBER WASTE PUMP
TE FIBER WASTE PUMP
TE P.H. MIXER
DOCK LEVELER/BUMPER
PROCESS WTR SURGE TANK PUMP
TE PROCESS WTR SURGE TANK PUMP
DIRTY WATER SURFACE PUMP
TE DIRTY WATER SURFACE PUMP
TE DIRTY WATER SUMP PUMP
DIRTY WATER SUMP PUMP
HIGH PRESSURE WASHER
VACUUM PUMPS # 5
MILL WATER BOOSTER PUMP & CONTROL VALVE
WASTE WATER STOCK CHEST
WASTE WATER STOCK CHEST
SIEVE STORAGE & MAINTENANCE EQUIP-LINE 1
MACHINE LINE MCC
TE PANEL PRIMMING LINE HANDLIN
PANEL PRIMMIMG LINE PAINTING EQUIP.
PRIMING LINE CONTROL SYS
PANEL PRIMMING LINE HANDLING EQUIPMENT
COATING & PNEUMATIC LINEMCC
PNEUMATIC COATER
VERTICAL SUB PUMP
INFRA-RED PRE-HEAT OVEN CONV.
PAINTER LINE MCC-480 V
ROLL COATER
TE EQUIPMENT PAINTING
ELECTRICAL INSTALL- ATION
EQUIPMENT PAINTING
MECHANICAL ERECTION
Description
TE MECHANICAL ERECTION
PRIMER WK TNK&EQUIP
TE PRIMER WK TNK&EQUIP
PRIMER STG TNKS&EQUI
TE PRIMER STG TNKS&EQUI
TE ELECTRICAL INSTALL- ATION
TE PANEL PRIMMIMG LINE PAINTIN
BAR CODING EQUIPMENT
DRY PRODUCT SHEAR EQUIPMENT
TE DRY PRODUCT SHEAR EQUIPMENT
INK JET LABEL EQUIPMENT
TE BD BREAKER - REJ BD
TE REJ BD FEED CONVEYOR
LAB EQUIPMENT
TE LAB EQUIPMENT
LABORATORY PRESS AND MOULDS
EMPLOYEE TIME TRACKINGSYSTEM
COMPUTERS
CPU HDD
Computer Speed RAM Size Network Card CDROM Sound Card Modem OS
Dell Inspiron 3200 266 80MB 5GB BreezeCom Wireless LAN ver 2.0 Crystal PNP Audio Win98
Dell Inspiron 3200 266 80MB 5GB BreezeCom Wireless LAN ver 2.0 Crystal PNP Audio Win98
Dell Inspiron 3000 166 32MB 2GB Win95
Dell Dimension V350 350 64MB 8GB 3Com Fast EtherLink XL Yes DS-XG Wave WinNT
Dell Dimension V350 350 64MB 8GB 3Com Fast EtherLink XL Yes DS-XG Wave WinNT
Dell Dimension V350 350 64MB 8GB 3Com Fast EtherLink XL Yes DS-XG Wave WinNT
Dell Dimension V350 350 64MB 8GB 3Com Fast EtherLink XL Yes WinNT
Dell Inspiron 3200 266 80MB 6GB 3Com MegaHertz 10/100 PC Card Yes CS4236/37/38 MegaHertz 56K Win98
Dell Inspiron 3200 266 80MB 6GB BreezeCom Wireless LAN ver 2.0 Crystal PNP Audio Win98
Clone 32MB 2.5GB NE2000 Yes Win95
Dell Dimension XPS R400 400 64MB 4GB 3Com Fast EtherLink PCI 10/100 Yes WinNT
Dell Inspiron 7000 266 96MB 6GB 3Com MegaHertz 10/100 PC Card DVD Maestro MPU401 Psion Dacom 56K Win98
Dell Dimension XPS D300 300 32MB 6GB 3Com Fast EtherLink XL 10/100MB Yes Win95
HP NetServer LH Pro 6/200 200 128MB 6x4GB
Dell Diminson XPS R400 400
PRINTERS
Serial
Make Model Number
Canon BJC-6000
Hewlett Packard LaserJet 6P USCC049336
Hewlett Packard DeskJet 820Cse SG69S180RQ
Hewlett Packard LaserJet 8000
Hewlett Packard LaserJet 5SI
Hewlett Packard LaserJet 2100
Hewlett Packard LaserJet 5P
Hewlett Packard DeskJet 1600C
Hewlett Packard DeskJet 722C US86A15046
Hewlett Packard LaserJet 6P
Xerox DC332
Macintosh HD:Desktop Folder:Fortra Fiber computer and pri.d
VEHICLES
Make and Model Vehicle Identification Number
1997 Chevrolet Silverado 1500 Pickup 1GCEC19R7VE138245
1999 Dodge Grand Caravan 1B4GP44G8XB629414
TELECOMM EQUIPMENT
3COM 3C16406 SuperStack II PS Hub 40 - 24 port
Belkin 10ft LAN RJ45 VL5 cable
Belkin 10ft RJ11 straight thru cable
APC 600 UPS
Ingram Micro External 33.6 Modem
Ingram Micro RMW-4MAU 19" Wall Mount Rack
Curtis SP700 6-Outlet surge protector
MOBILE EQUIPMENT *
Equipment Model Number Serial Number
Broderson Carryback Crane IC-200 85186
Caterpillar Integrated Tool Carrier
(Frontend Loader) IT24F 4NN01077
Yale Forklift GLP060 E177B17781U
Yale Forklift GLP060 E177B17804U
Yale Forklift GLP060T A875B04466W
Taylor Forklift THD160 27455
Taylor Forklift THD160 27456
Taylor Forklift THD160 27457
Taylor Forklift THD250S 25417
Taylor Forklift THD250S 27461
Taylor Forklift THD160 28494
Taylor Forklift THD160 28495
Genie Manlift Boom Z60-34 1549
*upon purchase by Landlord pursuant to respective leases therefor
Macintosh HD:Desktop Folder:Fortra Fiber computer and pri.d
EXHIBIT C
GUARANTY
THIS GUARANTY is made as of the 6th day of October, 2000 by JAMES HARDIE
NV, a Netherlands corporation ("Guarantor"), having an office at 26300 La
Alameda, Suite 100, Mission Viejo, California 92691, in favor of FORTRA
FIBER-CEMENT L.L.C., a Delaware limited liability ("Landlord"), with respect to,
in consideration of, and as inducement for, the leasing to JAMES HARDIE BUILDING
PRODUCTS, INC., a Nevada corporation ("Tenant"), of which Guarantor is the sole
owner, of certain premises and personal property (the "Premises") located in
Waxahachie, Ellis County, Texas, pursuant to that certain Industrial Building
Lease (as such may be amended, restated, supplemented, extended, renewed or
otherwise modified from time to time, the "Lease") dated as of even date
herewith between Landlord and Tenant.
1. Guarantor hereby unconditionally and irrevocably guarantees to
Landlord, its successors and/or assigns (a) the full and prompt payment of all
Rent (as defined in the Lease) and all other sums payable by Tenant under the
Lease in accordance with its terms (including sums that would become due but for
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. Section 362(a)) and (b) the full and prompt performance of all other
obligations owed by Tenant pursuant to the Lease (the payment of Rent and all
other obligations referred to in clauses (a) and (b) are hereinafter referred to
as the "Obligations"). If Tenant shall fail to pay or perform any Obligation as
required pursuant to the terms of the Lease, then, irrespective of any defense
or any right of set-off, credit or claim that Guarantor may have against
Landlord, Guarantor shall forthwith upon demand by Landlord pay or perform such
Obligation.
2. This Guaranty is absolute, unconditional and irrevocable.
Notwithstanding (a) any agreement or stipulation between Landlord and Tenant or
their successors or assigns extending the time of performance or modifying any
of the terms, covenants or conditions contained in the Lease on the part of
Tenant to be performed, (b) any renewal or extension of the Lease, either
pursuant to an option granted in the Lease or otherwise, (c) any waiver by or
failure of Landlord to enforce any of the terms, covenants or conditions
contained in the Lease or any of the terms, covenants or conditions contained in
any modifications thereof, (d) any assignment of the Lease or any subletting of
all or any part of the Premises, (e) any holdover by Tenant beyond the term of
the Lease, (f) any consent, indulgence or other action, inaction or omission
under or in respect of the Lease, or (g) any bankruptcy, insolvency,
reorganization, arrangement, assignment for the benefit of creditors,
receivership or trusteeship affecting Tenant or Landlord or their respective
successors or assigns whether or not notice thereof is given to Guarantor,
Guarantor shall continue to be liable under this Guaranty. No such agreement,
stipulation, waiver or failure shall impair the obligations hereunder of
Guarantor and such obligations shall be and remain in full force and effect.
3. The liability of Guarantor under this Guaranty shall be an absolute,
direct, immediate and unconditional guaranty of payment and performance and not
of collectibility, and shall not be conditional or contingent upon the
genuineness, validity, regularity or enforceability of the Lease or other
documents or instruments relating to the obligations hereby guaranteed or the
pursuit by Landlord of any remedies Landlord may have.
4. Guarantor hereby waives (a) diligence, presentment, demand of payment
and protest; (b) all notices to Guarantor, Tenant or any other person (whether
of nonpayment, termination, acceptance of this Guaranty, default under the Lease
or any other matters relating to the Lease, the Premises or related matters,
whether or not referred to herein, and including any and all notices of the
creation, renewal, extension, modification or accrual of any obligations
contained in the Lease) and (c) all demands whatsoever. Guarantor agrees that
its obligations hereunder shall not be affected by any circumstances which might
otherwise constitute a legal or equitable discharge of a guarantor or surety.
5. No failure or delay on the part of Landlord in exercising any right,
power or privilege under this Guaranty shall operate as a waiver of or otherwise
affect any such right, power or privilege nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
6. Any notice or demand of Guarantor from or by Landlord, its successors
or assigns, shall be delivered to Guarantor in the manner prescribed for the
delivery of notices in the Lease at the address indicated in the first paragraph
of this Guaranty, or such other address as Guarantor shall furnish in writing to
Landlord. Nothing contained in this Paragraph 6 shall be deemed to require
Landlord to give any notice to Guarantor, Tenant or any other Person.
7. This Guaranty may be enforced by Landlord without the necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the remedy provisions of the
Lease or otherwise, and Guarantor hereby waives the right to require Landlord to
proceed against Tenant, to exercise its rights and remedies under the Lease, or
to pursue any other remedy or enforce any other right at law or in equity.
Nothing herein contained shall prevent Landlord from suing on the Lease or from
exercising any other rights available to it under the Lease, and the exercise of
any of the aforesaid rights shall not constitute a legal or equitable discharge
of Guarantor. Guarantor understands that the exercise by Landlord of certain
rights and remedies contained in the Lease may affect or eliminate Guarantor's
right of subrogation against Tenant and that Guarantor may therefor incur
partially or totally nonreimbursable liability hereunder, nevertheless Guarantor
hereby authorizes and empowers Landlord to exercise in its sole discretion, any
rights and remedies, or any combination thereof, which may then be available, it
being the purpose and intent of Guarantor that its obligations hereunder shall
be absolute, independent and unconditional under any and all circumstances.
8. Whenever Guarantor shall make any payment to Landlord hereunder on
account of any liability hereunder, Guarantor shall notify Landlord in writing
that such payment is made under this Guaranty for such purpose. It is understood
that Landlord, without impairing this Guaranty, may, subject to the terms of the
Lease, apply payments from Tenant or from any reletting of the Premises upon an
uncured default by Tenant, to any due and unpaid Rent or other charges or to
such other obligations owed by Tenant to Landlord pursuant to the Lease in such
order as Landlord, in its sole and absolute discretion, determines.
9. Until the Obligations shall have been indefeasibly paid in full,
Guarantor shall withhold exercise of (a) any right of subrogation against
Tenant, (b) any right of contribution
-2-
Guarantor may have against any other guarantor of the Obligations, (c) any right
to enforce any remedy which Landlord now has or may hereafter have against
Tenant or (d) any benefit of, and any right to participate in, any security now
or hereafter held by Landlord. Guarantor further agrees that, to the extent the
waiver of its rights of subrogation and contribution as set forth herein is
found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation Guarantor may have against Tenant or against
any collateral or security, and any rights of contribution Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
Landlord may have against Tenant, to all right, title and interest Landlord may
have in any such collateral or security, and to any rights Landlord may have
against such other guarantor. Landlord may use, sell or dispose of any item of
collateral or security as it sees fit without regard to any subrogation rights
Guarantor may have, and upon any such disposition or sale any rights of
subrogation Guarantor may have shall terminate. If any amount shall be paid to
Guarantor on account of any such subrogation rights at any time when all
Obligations shall not have been paid in full, such amount shall be held in trust
for Landlord and shall forthwith be paid over to Landlord to be credited and
applied against the Obligations, whether matured or unmatured, in accordance
with the terms of the Lease or any applicable security agreement.
10. Subject to the rights of any creditors of Guarantor, any indebtedness
of Tenant now or hereafter held by Guarantor is hereby subordinated in right of
payment to the Obligations and any such indebtedness of Tenant to Guarantor
collected or received by Guarantor shall be held in trust for Landlord and shall
forthwith be paid over to Landlord to be credited and applied against the
Obligations but without affecting, impairing or limiting in any manner the
liability of Guarantor under any other provision of this Guaranty.
11. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Obligations shall have been indefeasibly paid in full and
Tenant shall have no further Obligations under, pursuant to, or in connection
with, the Lease.
12. This Guaranty shall continue in full force and be binding upon
Guarantor and its successors and assigns.
13. This Guaranty shall inure to the benefit of Landlord and its
successors and assigns.
14. Guarantor agrees that it will, at any time and from time to time,
within ten (10) business days following written request by Landlord, execute,
acknowledge and deliver to Landlord or to such persons as Landlord may direct, a
statement certifying that this Guaranty is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating such modifications). Guarantor agrees that such
certificates may be relied on by any person holding or proposing to acquire any
interest in the Lease.
15. Guarantor shall pay all reasonable attorneys' fees, charges and
expenses and all other reasonable costs and expenses which are incurred in the
enforcement of this Guaranty whether or not any action or proceeding is actually
commenced by Landlord against Guarantor or prosecuted to judgment.
-3-
16. All rights, duties, benefits, and privileges arising hereunder shall
be construed according to the laws of the State of Texas.
17. To the extent that Guarantor has now or may hereafter acquire such,
Guarantor hereby irrevocably waives in respect of its obligations under this
Guaranty, immunity from the jurisdiction of any court (including, but not
limited to, the courts of the United States or any State thereof) and immunity
of its revenues, assets, or properties (whether commercial or noncommercial)
from execution upon, attachment in aid of execution upon, and attachment prior
to, a judgment of any such court, and from any other legal process or action
taken in connection with this Guaranty, and Guarantor agrees that the foregoing
waivers of immunity shall have effect under and be construed in accordance with
the Foreign Sovereign Immunities Act of 1976 of the United States, as the same
may be amended from time to time.
18. Every provision of this Guaranty is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the validity of the remainder of this
Guaranty.
19. (a) So long as any Obligation could arise or remains outstanding,
Guarantor shall not, without the prior written consent of Landlord, commence or
join with any other person in commencing any bankruptcy, reorganization or
insolvency proceedings of or against Tenant. The obligations of Guarantor under
this Guaranty shall not be reduced, limited, impaired, discharged, deferred,
suspended or terminated by any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Tenant or by any defense which Tenant may have by reason of the
order, decree or decision of any court or administrative body resulting from any
such proceeding.
(b) Guarantor acknowledges and agrees that any interest on any portion of
the Obligations which accrues after the commencement of any proceeding referred
to in clause (a) above (or, if interest on any portion of the Obligations ceases
to accrue by operation of law by reason of the commencement of said proceeding,
such interest as would have accrued on such portion of the Obligations if said
proceedings had not been commenced) shall be included in the Obligations because
it is the intention of Guarantor and Landlord that the Obligations which are
guarantied by Guarantor pursuant to this Guaranty should be determined without
regard to any rule of law or order which may relieve Tenant of any portion of
such Obligations by reason of such proceedings referred to in clause (a).
Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession,
assignee for the benefit of creditors or similar person to pay Landlord, or
allow the claim of Landlord in respect of, any such interest accruing after the
date on which such proceeding is commenced.
(c) In the event that all or any portion of the Obligations are paid by
Tenant, the obligations of Guarantor hereunder shall continue and remain in full
force and effect or be reinstated, as the case may be, in the event that all or
any part of such payment(s) are rescinded or recovered directly or indirectly
from Landlord as a preference, fraudulent transfer or otherwise, and any such
payments which are so rescinded or recovered shall constitute Obligations for
all purposes under this Guaranty.
-4-
20. Guarantor acknowledges and agrees that all disputes arising, directly
or indirectly, out of or relating to this Guaranty, and all actions to enforce
this Guaranty, may be dealt with and adjudicated in the courts of the State of
Texas or the Federal courts sitting in the State of Texas; and hereby expressly
and irrevocably submits the person of Guarantor to the jurisdiction of such
courts in any suit, action or proceeding arising, directly or indirectly, out of
or relating to this Guaranty. So far as is permitted under the applicable law,
this consent to personal jurisdiction shall be self-operative and no further
instrument or action, other than service of process in a manner permitted by
law, shall be necessary in order to confer jurisdiction upon the person of
Guarantor in any such court. Guarantor irrevocably agrees that service of any
and all process in any such suit, action or proceeding in any such court may be
effected by mailing a copy thereof by registered or certified mail, postage
prepaid, to it at its address as specified in the preamble of this Guaranty.
Such service is hereby acknowledged, agreed, accepted and consented to by
Guarantor to be good, sufficient, effective and binding service in every respect
21. Provided that service of process is effected upon Guarantor as
provided above or in any other manner permitted by law, Guarantor irrevocably
waives, to the fullest extent permitted by law, and agrees not to assert, by way
of motion, as a defense or otherwise, (a) any objection which it may have or may
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in such a court as is mentioned in the previous paragraph, (b) any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum, or (c) any claim that it is not personally
subject to the jurisdiction of the above-named courts. Provided that service of
process is effected upon Guarantor as provided above or in any other manner
permitted by law, Guarantor agrees that final judgment from which Guarantor has
not appealed or may not appeal or further appeal in any such suit, action or
proceeding brought in such a court of competent jurisdiction shall be conclusive
and binding upon Guarantor and, may so far as is permitted under the applicable
law, be enforced in the courts or any state or any Federal court and in any
other courts to the jurisdiction of which Guarantor is subject, by a suit upon
each judgment and that Guarantor will not assert any defense, counterclaim or
set off in any such suit upon such judgment.
22. The obligations of Guarantor under this Guaranty shall not be
discharged by an amount paid in currency other than U.S. Dollars, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to U.S. Dollars under normal banking procedures does not yield the
amount of U.S. Dollars due hereunder. If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in U.S. Dollars into
another currency (the "Second Currency"), the rate of exchange which shall be
applied shall be that at which in accordance with normal banking procedures
Landlord could purchase U.S. Dollars with the Second Currency on the business
day next preceding that on which such judgment is rendered. The obligation of
Guarantor in respect of any such sum due from it to Landlord hereunder shall,
notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the business day following
receipt by Guarantor of any sum adjudged to be due hereunder in the Second
Currency to Landlord, Landlord may in accordance with normal banking procedures
purchase U.S. Dollars with the amount of the Second Currency so adjudged to be
due; and Guarantor hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify Landlord against, and to
-5-
pay Landlord on demand in U.S. Dollars, any difference between the sum
originally due to Landlord in U.S. Dollars and the amount of U.S. Dollars so
purchased and transferred.
23. Guarantor shall furnish to Landlord (a) as soon as available, and in
any event within sixty (60) days after the close of each fiscal quarter
accounting period of Guarantor, a copy of the balance sheet of Guarantor as of
the last day of such period, in reasonable detail showing in comparative form
the figures for the corresponding date and period in the previous fiscal year,
and certified to by its president, chief financial officer or treasurer; and (b)
as soon as available, and in any event within one hundred twenty (120) days
after the close of each annual accounting period of Guarantor, a copy of the
balance sheet of Guarantor as of the last day of the period then ended, and
accompanying notes thereto, in reasonable detail showing in comparative form the
figures for the previous fiscal year, accompanied by an unqualified opinion
thereon of a firm of independent public accountants of recognized national
standing, selected by Guarantor and satisfactory to Landlord, to the effect that
the financial statements have been prepared in accordance with generally
accepted accounting principles ("GAAP") and present fairly in accordance with
GAAP the financial condition of Guarantor as of the close of such fiscal year
and the results of its operations for the fiscal year then ended, and that an
examination of such accounts in connection with such financial statements has
been made in accordance with generally accepted auditing standards and,
accordingly, such examination included such tests of the accounting records and
such other auditing procedures as were considered necessary in the
circumstances.
24. Guarantor agrees to execute, deliver and file all such further
instruments as may be necessary under the laws of the State of Texas in order to
make effective (a) the consent of Guarantor to the jurisdiction of the courts of
the State of Texas and the Federal courts sitting in the State of Texas and (b)
the other provisions of this Guaranty.
25. Nothing in this Guaranty shall affect the right of Landlord to serve
process in any manner permitted by law or limit the right of Landlord or any of
its successors or assigns, to bring proceedings against Guarantor in the courts
of any jurisdiction or jurisdictions.
26. Guarantor may not assign this Guaranty without the prior written
consent of Landlord which consent may be withheld, conditioned or delayed in
Landlord's sole discretion.
-6-
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
JAMES HARDIE NV, a Netherlands corporation
By:________________________________________
Peter Macdonald,
Managing Director
By:________________________________________
Phillip Morley,
Managing Director
-7-
EXHIBIT D
GUARANTY
THIS GUARANTY is made as of the 6th day of October, 2000 by TEMPLE-INLAND
FOREST PRODUCTS CORPORATION, a Delaware corporation ("Guarantor"), having an
office at 303 South Temple Drive, Diboll, Texas 75941, in favor of JAMES HARDIE
BUILDING PRODUCTS, INC., a Nevada corporation ("Tenant"), with respect to, in
consideration of, and as inducement for, the leasing by Tenant of certain
premises and personal property (the "Premises") located in Waxahachie, Ellis
County, Texas, from FORTRA FIBER-CEMENT L.L.C., a Delaware limited liability
company ("Landlord"), of which the majority interests are owned by Guarantor,
pursuant to that certain Industrial Building Lease (as such may be amended,
restated, supplemented, extended, renewed or otherwise modified from time to
time, the "Lease") dated as of even date herewith between Landlord and Tenant.
1. Guarantor hereby unconditionally and irrevocably guarantees to Tenant,
its successors and/or assigns the full and prompt payment and performance of all
obligations owed by Landlord pursuant to the Lease (the "Obligations"). If
Landlord shall fail to pay or perform any Obligation as required pursuant to the
terms of the Lease, then, irrespective of any defense or any right of set-off,
credit or claim that Guarantor may have against Tenant, Guarantor shall
forthwith upon demand by Tenant pay or perform such Obligation.
2. This Guaranty is absolute, unconditional and irrevocable.
Notwithstanding (a) any agreement or stipulation between Tenant and Landlord or
their successors or assigns extending the time of performance or modifying any
of the terms, covenants or conditions contained in the Lease on the part of
Landlord to be performed, (b) any renewal or extension of the Lease, either
pursuant to an option granted in the Lease or otherwise, (c) any waiver by or
failure of Tenant to enforce any of the terms, covenants or conditions contained
in the Lease or any of the terms, covenants or conditions contained in any
modifications thereof, (d) any sale or transfer of the Premises, (e) any
consent, indulgence or other action, inaction or omission under or in respect of
the Lease, or (f) any bankruptcy, insolvency, reorganization, arrangement,
assignment for the benefit of creditors, receivership or trusteeship affecting
Landlord or Tenant or their respective successors or assigns whether or not
notice thereof is given to Guarantor, Guarantor shall continue to be liable
under this Guaranty. No such agreement, stipulation, waiver or failure shall
impair the obligations hereunder of Guarantor and such obligations shall be and
remain in full force and effect.
3. The liability of Guarantor under this Guaranty shall be an absolute,
direct, immediate and unconditional guaranty of payment and performance and not
of collectibility, and shall not be conditional or contingent upon the
genuineness, validity, regularity or enforceability of the Lease or other
documents or instruments relating to the obligations hereby guaranteed or the
pursuit by Tenant of any remedies Tenant may have.
4. Guarantor hereby waives (a) diligence, presentment, demand of payment
and protest; (b) all notices to Guarantor, Landlord or any other person (whether
of nonpayment, termination, acceptance of this Guaranty, default under the Lease
or any other matters relating to the Lease, the Premises or related matters,
whether or not referred to herein, and including any and all notices of the
creation, renewal, extension, modification or accrual of any obligations
contained in the Lease) and (c) all demands whatsoever. Guarantor agrees that
its obligations hereunder shall not be affected by any circumstances which might
otherwise constitute a legal or equitable discharge of a guarantor or surety.
5. No failure or delay on the part of Tenant in exercising any right,
power or privilege under this Guaranty shall operate as a waiver of or otherwise
affect any such right, power or privilege nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
6. Any notice or demand of Guarantor from or by Tenant, its successors or
assigns, shall be delivered to Guarantor in the manner prescribed for the
delivery of notices in the Lease at the address indicated in the first paragraph
of this Guaranty, or such other address as Guarantor shall furnish in writing to
Tenant. Nothing contained in this Paragraph 6 shall be deemed to require Tenant
to give any notice to Guarantor, Landlord or any other Person.
7. This Guaranty may be enforced by Tenant without the necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the remedy provisions of the
Lease or otherwise, and Guarantor hereby waives the right to require Tenant to
proceed against Landlord, to exercise its rights and remedies under the Lease,
or to pursue any other remedy or enforce any other right at law or in equity.
Nothing herein contained shall prevent Tenant from suing on the Lease or from
exercising any other rights available to it under the Lease, and the exercise of
any of the aforesaid rights shall not constitute a legal or equitable discharge
of Guarantor. Guarantor understands that the exercise by Tenant of certain
rights and remedies contained in the Lease may affect or eliminate Guarantor's
right of subrogation against Landlord and that Guarantor may therefore incur
partially or totally nonreimbursable liability hereunder; nevertheless Guarantor
hereby authorizes and empowers Tenant to exercise in its sole discretion, any
rights and remedies, or any combination thereof, which may then be available, it
being the purpose and intent of Guarantor that its obligations hereunder shall
be absolute, independent and unconditional under any and all circumstances.
8. Whenever Guarantor shall make any payment to Tenant hereunder on
account of any liability hereunder, Guarantor shall notify Tenant in writing
that such payment is made under this Guaranty for such purpose.
9. Until the Obligations shall have been indefeasibly paid in full,
Guarantor shall withhold exercise of (a) any right of subrogation against
Landlord, (b) any right of contribution Guarantor may have against any other
guarantor of the Obligations, (c) any right to enforce any remedy which Tenant
now has or may hereafter have against Landlord or (d) any benefit of, and any
right to participate in, any security now or hereafter held by Tenant. Guarantor
further agrees that, to the extent the waiver of its rights of subrogation and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation Guarantor may
have against Landlord or against any collateral or security, and any rights of
contribution Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights Tenant may have against Landlord, to all
right, title and interest Tenant may have in any such collateral or security,
and to any rights Tenant may have
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against such other guarantor. Tenant may use, sell or dispose of any item of
collateral or security as it sees fit without regard to any subrogation rights
Guarantor may have, and upon any such disposition or sale any rights of
subrogation Guarantor may have shall terminate. If any amount shall be paid to
Guarantor on account of any such subrogation rights at any time when all
Obligations shall not have been paid in full, such amount shall be held in trust
for Tenant and shall forthwith be paid over to Tenant to be credited and applied
against the Obligations, whether matured or unmatured, in accordance with the
terms of the Lease or any applicable security agreement.
10. Subject to the rights of any creditors of Guarantor, any indebtedness
of Landlord now or hereafter held by Guarantor is hereby subordinated in right
of payment to the Obligations and any such indebtedness of Landlord to Guarantor
collected or received by Guarantor shall be held in trust for Tenant and shall
forthwith be paid over to Tenant to be credited and applied against the
Obligations but without affecting, impairing or limiting in any manner the
liability of Guarantor under any other provision of this Guaranty.
11. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Obligations shall have been indefeasibly paid in full and
Landlord shall have no further Obligations under, pursuant to, or in connection
with, the Lease.
12. This Guaranty shall continue in full force and be binding upon
Guarantor and its successors and assigns.
13. This Guaranty shall inure to the benefit of Tenant and its successors
and assigns.
14. Guarantor agrees that it will, at any time and from time to time,
within ten (10) business days following written request by Tenant, execute,
acknowledge and deliver to Tenant or to such persons as Tenant may direct, a
statement certifying that this Guaranty is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating such modifications). Guarantor agrees that such
certificates may be relied on by any person holding or proposing to acquire any
interest in the Lease.
15. Guarantor shall pay all reasonable attorneys' fees, charges and
expenses and all other reasonable costs and expenses which are incurred in the
enforcement of this Guaranty whether or not any action or proceeding is actually
commenced by Tenant against Guarantor or prosecuted to judgment
16. All rights, duties, benefits, and privileges arising hereunder shall
be construed according to the laws of the State of Texas.
17. To the extent that Guarantor has now or may hereafter acquire such,
Guarantor hereby irrevocably waives in respect of its obligations under this
Guaranty, immunity from the jurisdiction of any court (including, but not
limited to, the courts of the United States or any State thereof) and immunity
of its revenues, assets, or properties (whether commercial or noncommercial)
from execution upon, attachment in aid of execution upon, and attachment prior
to, a judgment of any such court, and from any other legal process or action
taken in connection
-3-
with this Guaranty, and Guarantor agrees that the foregoing waivers of immunity
shall have effect under and be construed in accordance with the Foreign
Sovereign Immunities Act of 1976 of the United States, as the same may be
amended from time to time.
18. Every provision of this Guaranty is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the validity of the remainder of this
Guaranty.
19. (a) So long as any Obligation could arise or remains outstanding,
Guarantor shall not, without the prior written consent of Tenant, commence or
join with any other person in commencing any bankruptcy, reorganization or
insolvency proceedings of or against Landlord. The obligations of Guarantor
under this Guaranty shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of Landlord or by any defense which Landlord may have by reason
of the order, decree or decision of any court or administrative body resulting
from any such proceeding.
(b) Guarantor acknowledges and agrees that any interest on any portion of
the Obligations which accrues after the commencement of any proceeding referred
to in clause (a) above (or, if interest on any portion of the Obligations ceases
to accrue by operation of law by reason of the commencement of said proceeding,
such interest as would have accrued on such portion of the Obligations if said
proceedings had not been commenced) shall be included in the Obligations because
it is the intention of Guarantor and Tenant that the Obligations which are
guarantied by Guarantor pursuant to this Guaranty should be determined without
regard to any rule of law or order which may relieve Landlord of any portion of
such Obligations by reason of such proceedings referred to in clause (a).
Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession,
assignee for the benefit of creditors or similar person to pay Tenant, or allow
the claim of Tenant in respect of, any such interest accruing after the date on
which such proceeding is commenced.
(c) In the event that all or any portion of the Obligations are paid by
Landlord, the obligations of Guarantor hereunder shall continue and remain in
full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) are rescinded or recovered directly or
indirectly from Tenant as a preference, fraudulent transfer or otherwise, and
any such payments which are so rescinded or recovered shall constitute
Obligations for all purposes under this Guaranty.
20. Guarantor acknowledges and agrees that all disputes arising, directly
or indirectly, out of or relating to this Guaranty, and all actions to enforce
this Guaranty, may be dealt with and adjudicated in the courts of the State of
Texas or the Federal courts sitting in the State of Texas; and hereby expressly
and irrevocably submits the person of Guarantor to the jurisdiction of such
courts in any suit, action or proceeding arising, directly or indirectly, out of
or relating to this Guaranty. So far as is permitted under the applicable law,
this consent to personal jurisdiction shall be self-operative and no further
instrument or action, other than service of process in a manner permitted by
law, shall be necessary in order to confer jurisdiction upon the person of
Guarantor in any such court. Guarantor irrevocably agrees that service of any
and all process in
-4-
any such suit, action or proceeding in any such court may be effected by mailing
a copy thereof by registered or certified mail, postage prepaid, to it at its
address as specified in the preamble of this Guaranty. Such service is hereby
acknowledged, agreed, accepted and consented to by Guarantor to be good,
sufficient, effective and binding service in every respect.
21. Provided that service of process is effected upon Guarantor as
provided above or in any other manner permitted by law, Guarantor irrevocably
waives, to the fullest extent permitted by law, and agrees not to assert, by way
of motion, as a defense or otherwise, (a) any objection which it may have or may
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in such a court as is mentioned in the previous paragraph, (b) any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum, or (c) any claim that it is not personally
subject to the jurisdiction of the above-named courts. Provided that service of
process is effected upon Guarantor as provided above or in any other manner
permitted by law, Guarantor agrees that final judgment from which Guarantor has
not appealed or may not appeal or further appeal in any such suit, action or
proceeding brought in such a court of competent jurisdiction shall be conclusive
and binding upon Guarantor and, may so far as is permitted under the applicable
law, be enforced in the courts or any state or any Federal court and in any
other courts to the jurisdiction of which Guarantor is subject, by a suit upon
each judgment and that Guarantor will not assert any defense, counterclaim or
set off in any such suit upon such judgment.
22. Guarantor shall furnish to Tenant (a) as soon as available, and in any
event within sixty (60) days after the close of each fiscal quarter accounting
period of Guarantor, a copy of Form 10-Q filed with the U.S. Securities and
Exchange Commission by the parent company of Guarantor as of the last day of
such period; and (b) as soon as available, and in any event within one hundred
twenty (120) days after the close of each annual accounting period of Guarantor,
a copy of Form 10-K filed with the U.S. Securities and Exchange Commission by
the parent company of Guarantor as of the last day of the period then ended.
23. Guarantor agrees to execute, deliver and file all such further
instruments as may be necessary under the laws of the State of Texas in order to
make effective (a) the consent of Guarantor to the jurisdiction of the courts of
the State of Texas and the Federal courts sitting in the State of Texas and (b)
the other provisions of this Guaranty.
24. Nothing in this Guaranty shall affect the right of Tenant to serve
process in any manner permitted by law or limit the right of Tenant or any of
its successors or assigns, to bring proceedings against Guarantor in the courts
of any jurisdiction or jurisdictions.
25. Guarantor may not assign this Guaranty without the prior written
consent of Tenant which consent may be withheld, conditioned or delayed in
Tenant's sole discretion.
26. Guarantor agrees not to sell or transfer its ownership interest in
Landlord to any entity not affiliated with Tenant which engages in the
manufacture of fiber-cement products.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
TEMPLE-INLAND FOREST PRODUCTS
CORPORATION, a Delaware corporation
By: _________________________________
Name: ____________________________
Title: ___________________________
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EXHIBIT E
FORM OF
JAMES HARDIE BUILDING PRODUCTS, INC.
CONFIDENTIALITY UNDERTAKING
YOUR NAME AND TITLE: ______________________________________________
(Please print)
ORGANIZATION: ______________________________________________
(Name in Full)
ADDRESS: ______________________________________________
______________________________________________
______________________________________________
ACKNOWLEDGMENT AND AGREEMENT
In consideration of being granted access to a site operated by James
Hardie Building Products Inc. or any of its affiliated or related companies
(together and respectively, the "Company") I provide the following undertaking
on behalf of myself and my organization.
I acknowledge that during my access to the Company's site, the Company may
disclose to me Confidential Information. I acknowledge that the Company is only
prepared to grant me access to Company site on the condition that I agree to
keep any such Confidential Information confidential. I agree to do so on the
terms contained in this undertaking.
TERMS OF DISCLOSURE
"Confidential Information" includes information concerning quality
systems, product formulations and properties, production processes and
materials, machinery and its configurations, engineering designs and drawings,
testing methods and results, research projects, business information and plans,
and customer and supplier identities and my association with the Company, any
other information treated or identified as confidential by the Company or of an
inherently confidential nature, including but not limited to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
- - Signatory and Witness to Initial in margin ___________________________________
(please summarise all disclosed Confidential Information beyond
that defined in the text printed above)
that is disclosed to me by the Company in the course of my access to the
Company's site and any record of the Confidential Information made by me or my
organization. Notwithstanding the
foregoing, Confidential Information does not include information which (a) was
in the possession of or known by me or my organization prior to disclosure by
the Company, or (b) is, or through no fault of me or my organization becomes,
generally known to the trade or the public.
I will take all action necessary to maintain the confidential nature of
the Confidential Information. I will not disclose or publish or permit
disclosure or publication of any of the Confidential Information to any person
(except a person whose access to the Company's site is permitted by that certain
Industrial Building Lease dated October ______, 2000 by and between the Company
as tenant and Fortra Fiber-Cement L.L.C. as landlord and also has executed a
similar Confidentiality Undertaking for the benefit of the Company) or for any
purpose other than those persons and purposes which have been disclosed to and
approved by the Company in writing or as otherwise expressly permitted
hereunder.
I will also:
(a) limit the disclosure of the Confidential Information to such of
my officers, employees, agents, attorneys or advisers who reasonably
require such information and in such cases require them to be equally
bound by the conditions of this undertaking; and
(b) return immediately to the Company all Confidential Information
when requested to do so by the Company at any time.
Confidential Information may be disclosed if required by law or legally
binding order or subpoena of a court, government or governmental agency
providing that only the minimum Confidential Information required to be
disclosed to comply with the applicable law or order is disclosed. I agree to
give the Company reasonable prior notice of any such disclosure at 26300 La
Alameda, Suite 100, Mission Viejo, California 92691, or any other address of
which I am informed in writing, so that the Company shall have a reasonable
opportunity to protect its interest in such Confidential Information.
The obligations of confidentiality in this undertaking continue to apply
to me until I obtain a release in writing from the Company or until the
information ceases to be Confidential Information as indicated above.
I acknowledge and agree to be bound by the above terms.
I also give this Confidentiality Undertaking on behalf of my organization
and I have the authority to bind my organization in this regard. (Strike out
this sentence if the signatory does not have the necessary authority.)
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The Company shall have all rights and remedies available at law or in
equity in the event of any violation of this Confidentiality Undertaking.
SIGNED:
_________________________________
(Signature)
Date: ___________________________
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EXHIBIT "F"
1. Broderson Carryback Crane, Model No. IC-200, Serial #85186
2. Caterpillar Integrated Tool Carrier (Frontend Loader), Model No. IT24F,
Serial #4NN01077
3. Yale Forklifts:
(a) Yale Forklift, Model No. GLP060, Serial #E177B17781U
(b) Yale Forklift, Model No. GLP060, Serial #E1-77B17804U
(c) Yale Forklift, Model No. GLP060T, Serial #A875B04466W
4. Taylor Forklifts:
(a) Taylor Forklift, Model No. THD160, Serial #27455
(b) Taylor Forklift, Model No. THD160, Serial #27456
(c) Taylor Forklift, Model No. THD160, Serial #27457
(d) Taylor Forklift, Model No. THD250S, Serial #25417
(e) Taylor Forklift, Model No. THD250S, Serial #27461
(f) Taylor Forklift, Model No. THD160, Serial #28494
(g) Taylor Forklift, Model No. THD160, Serial #28495
5. Genie Manlift Boom, Model No. Z60-34, Serial #1549