EXHIBIT 10.10
LEASE AGREEMENT
between
_______________________________________
DEVELOPMENT AUTHORITY OF XXXXXXXX COUNTY
and
ADVANCE STORES COMPANY, INCORPORATED
_______________________________________
relating to
$10,000,000
DEVELOPMENT AUTHORITY OF XXXXXXXX COUNTY
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(ADVANCE STORES COMPANY, INCORPORATED PROJECT), SERIES 1997
_______________________________________
NOTE: CERTAIN RIGHTS OF THE DEVELOPMENT AUTHORITY OF XXXXXXXX COUNTY UNDER THIS
LEASE AGREEMENT HAVE BEEN ASSIGNED TO, AND ARE SUBJECT TO A SECURITY
INTEREST IN FAVOR OF, FIRST UNION NATIONAL BANK, AS TRUSTEE, UNDER A TRUST
INDENTURE OF EVEN DATE HEREWITH, AS AMENDED OR SUPPLEMENTED FROM TIME TO
TIME. INFORMATION CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM
THE TRUSTEE AT FIRST UNION NATIONAL BANK, RICHMOND, VIRGINIA, ATTENTION:
CORPORATE TRUST DEPARTMENT.
_______________________________________
DATED AS OF DECEMBER 1, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION ..................................... 2
Section 1.1 Definitions ........................................ 2
Section 1.2 Rules of Construction .............................. 6
ARTICLE II
REPRESENTATIONS ........................................................... 8
Section 2.1 Representations by the Issuer ...................... 8
Section 2.2 Representations, Warranties and Covenants
by the Company ..................................... 9
ARTICLE III
PERMITS AND APPROVALS; COMPANY CONSENT TO ASSIGNMENT ...................... 12
Section 3.1 Approvals Required for the Project ................. 12
Section 3.2 Company Consent to Assignment of Agreement
and Execution of Indenture ......................... 12
ARTICLE IV
ISSUANCE OF THE BONDS ..................................................... 13
Section 4.1 Agreement to Issue the Bonds ....................... 13
Section 4.2 Disbursements from the Project Fund ................ 13
Section 4.3 Closeout of the Project Fund ....................... 13
Section 4.4 Disposition of the Balance in the Project Fund ..... 13
Section 4.5 Company Required to Pay in Event Project
Fund Insufficient .................................. 13
Section 4.6 No Third Party Beneficiary ......................... 14
Section 4.7 Construction of Project ............................ 14
ARTICLE V
LEASE PROVISIONS .......................................................... 15
Section 5.1 Agreement to Lease the Project ..................... 15
Section 5.2 Rental Payments .................................... 15
Section 5.3 Security for Payments Under the Lease Agreement .... 16
Section 5.4 Company's Performance Under Indenture .............. 16
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Section 5.5 No Set-Off ......................................... 16
Section 5.6 Letter of Credit and Reimbursement Agreement ....... 16
Section 5.7 Quiet Enjoyment .................................... 16
ARTICLE VI
MAINTENANCE AND MODIFICATIONS; TAXES AND UTILITY
CHARGES; INSURANCE AND EMINENT DOMAIN ..................................... 18
Section 6.1 Maintenance and Modification of the
Project by the Company ............................. 18
Section 6.2 Taxes and Utility Charges .......................... 18
Section 6.3 Casualty and Liability Insurance Required .......... 19
Section 6.4 Advances by the Issuer or the Trustee .............. 19
Section 6.5 Company to Make Up Deficiency in Insurance Coverage. 19
Section 6.6 Eminent Domain ..................................... 20
Section 6.7 Application of Net Proceeds of Insurance and
Eminent Domain ..................................... 20
Section 6.8 Parties to Give Notice ............................. 21
Section 6.9 No Warranty of Condition or Suitability by Issuer .. 21
ARTICLE VII
SPECIAL COVENANTS ......................................................... 22
Section 7.1 Access to the Project and Inspection ................ 22
Section 7.2 Further Assurances and Corrective Instruments ....... 22
Section 7.3 Recording and Filing; Other Instruments ............. 22
Section 7.4 Administrative Expenses ............................. 23
Section 7.5 Indemnity Against Claims ............................ 23
Section 7.6 Indemnity of Issuer and Trustee ..................... 23
Section 7.7 Additional Information .............................. 25
Section 7.8 Default Certificates ................................ 25
Section 7.9 Observe Laws ........................................ 25
ARTICLE VIII
ASSIGNMENT, LEASING AND SELLING ........................................... 26
Section 8.1 Assignment of this Lease Agreement or Lease
or Sale of the Project by the Company ............... 26
Section 8.2 Restrictions on Transfer of the Issuer's Rights ..... 26
Section 8.3 Assignment by the Issuer ............................ 26
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES ............................................ 27
Section 9.1 Events of Default Defined ........................... 27
Section 9.2 Remedies on Default ................................. 28
Section 9.3 Application of Amounts Realized in Enforcement
of Remedies ......................................... 28
Section 9.4 No Remedy Exclusive ................................. 28
Section 9.5 Agreement to Pay Attorneys' Fees and Expenses ....... 29
Section 9.6 Correlative Waivers ................................. 29
ARTICLE X
PREPAYMENTS; OPTIONS ...................................................... 30
Section 10.1 Optional Prepayments ................................ 30
Section 10.2 Mandatory Prepayment ................................ 30
Section 10.3 Other Mandatory Prepayments ......................... 31
Section 10.4 Conveyance of Project ............................... 31
ARTICLE XI
MISCELLANEOUS ............................................................. 32
Section 11.1 References to the Bonds Ineffective After Bonds Paid. 32
Section 11.2 No Implied Waiver ................................... 32
Section 11.3 Issuer Representative ............................... 32
Section 11.4 Company Representative .............................. 32
Section 11.5 Notices ............................................. 32
Section 11.6 If Payment or Performance Date Is Other Than
a Business Day ...................................... 33
Section 11.7 Binding Effect ...................................... 33
Section 11.8 Severability ...................................... 33
Section 11.9 Amendments, Changes and Modifications ............... 33
Section 11.10 Execution in Counterparts ........................... 33
Section 11.11 Applicable Law ...................................... 33
Section 11.12 No Charge Against XxXxxxxx County Credit ............ 34
Section 11.13 Issuer Not Liable ................................... 34
Section 11.14 Expenses ............................................ 34
Section 11.15 Amounts Remaining with the Trustee .................. 34
Section 11.16 References to the Credit Facility Issuer, Credit
Facility and Credit Facility Trustee ................ 35
Section 11.17 Net Lease ........................................... 35
Section 11.18 Term of Lease Agreement ............................. 35
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LEASE AGREEMENT
This LEASE AGREEMENT, dated as of December 1, 1997 between the DEVELOPMENT
AUTHORITY OF XXXXXXXX COUNTY (the "Issuer"), a public body corporate and politic
under the laws of the State of Georgia (the "State"), and ADVANCE STORES
COMPANY, INCORPORATED (the "Company"), a Virginia corporation.
W I T N E S S E T H:
--------------------
WHEREAS, the Issuer has been created pursuant to the provisions of an act
of the General Assembly of the State of Georgia (O.C.G.A. Section 36-62 et seq.)
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as amended (the "Act") and an activating resolution of the Board of
Commissioners of XxXxxxxx County, duly adopted on January 17, 1970, and its
directors have been appointed as provided therein and are currently acting in
that capacity; and
WHEREAS, the Issuer has heretofore indicated its willingness to issue
industrial development revenue bonds under the Act and to use the proceeds of
the sale of the Bonds (hereinafter defined) to finance, in whole or in part, the
cost of the acquisition, construction, installation and equipping of an
industrial facility to be located in XxXxxxxx County, Georgia; and
WHEREAS, to obtain funds for such purposes the Issuer will issue and sell
its Taxable Industrial Development Revenue Bonds (Advance Stores Company,
Incorporated Project), Series 1997 (the "Series 1997 Bonds"), in the aggregate
principal amount of $10,000,000 (the "Bonds"), under and pursuant to the Act, to
be secured by and contain such terms and provisions as are set forth in that
certain Trust Indenture (the "Indenture") dated as of December 1, 1997 among the
Issuer, Branch Banking and Trust Company as Credit Facility Trustee (the "Credit
Facility Trustee"), and First Union National Bank, Richmond, Virginia, as
Trustee (the "Trustee"), and the proceeds from the sale of the Bonds shall be
deposited with the Trustee and disbursed in the manner and for the purposes set
forth herein and in the Indenture, all as more fully provided herein and
therein; and
NOW, THEREFORE, in consideration of the respective representations and
agreements contained herein, the parties hereto, recognizing that under the Act
this Lease Agreement shall never constitute an indebtedness or a charge against
the general credit of the Issuer, the State of Georgia or any political
subdivision thereof within the meaning of any constitutional provision or
statutory limitation nor give rise to any pecuniary liability of the Issuer and
the Issuer shall not pay or promise to pay any debt or meet any financial
obligation to any person at any time in relation to the Project, except from
moneys received or to be received under the provisions of this Lease Agreement
and from the Credit Facility Issuer under a Credit Facility (each as hereinafter
defined) or derived from the exercise of the rights of the Issuer thereunder,
agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.1 DEFINITIONS. In addition to words and terms elsewhere defined
in this Lease Agreement or in the Indenture, the following words and terms shall
have the following meanings:
"Act" shall mean Section 36-62 et seq., as amended, Official Code of
-- ----
Georgia Annotated, and other applicable provisions of applicable law.
"Administrative Expenses" shall mean the amounts payable pursuant to
Section 7.8 hereof by the Company to or for the account of the Issuer to provide
for payment of the costs and expenses incurred by the Issuer.
"Bank" shall initially mean First Union National Bank as issuer of the
Credit Facility.
"Bond" or "Bonds" shall mean the Series 1997 Bonds, authorized to be
issued pursuant to the Indenture, including such Bonds issued in replacement for
mutilated, destroyed, lost or stolen Bonds pursuant to Section 2.10 of the
Indenture, and any amendments and supplements thereto, and any renewals and
extensions thereof, permitted by the Indenture.
"Bond Documents" shall mean collectively the Indenture, the Bonds, this
Lease Agreement, the Letter of Credit Documents, the Tender Agency Agreement and
the Remarketing Agreement.
"Bond Resolution" shall mean collectively the resolutions adopted by the
Issuer on December 15, 1997, authorizing, among other things, the execution and
delivery of the Issuer Documents to be signed by the Issuer and the issuance of
the Bonds by the Issuer.
"Business Day" means a day on which (a) banks located in each of the
cities in which the principal office of the Trustee, the Credit Facility
Trustee, the Credit Facility Issuer and the Remarketing Agent is located are not
required or authorized by law or executive order to close for business, and (b)
The New York Stock Exchange is not closed.
"Closing Date" means the date of the issuance and delivery of the Bonds.
"Company" shall mean Advance Stores Company, Incorporated, a Virginia
corporation, and its successors or assigns and any surviving, resulting or
transferee partnership or other entity.
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"Company Representative" shall mean any one of the persons at the time
designated to act on behalf of the Company by written certificate furnished to
the Trustee and the Credit Facility Trustee containing the specimen signatures
of such persons.
"Completion Date" shall mean the date of completion of the Project, as
that date shall be certified as provided in Section 4.3 hereof.
"Construction," when used in connection with the Project, shall mean,
without limitation, the construction, installation, equipping and improving of
the Project.
"Costs of the Project" shall mean all costs and allowances for the
acquisition, equipping and renovation of the Project which are permitted under
the Act and which include, but are not limited to, all capital costs of the
Project, including the following:
(i) the acquisition, expansion and improving of the Project,
including the acquisition of all machinery and equipment;
(ii) preparation of the plans and specifications for the Project
(including any preliminary study or plan of the Project or any aspect
thereof), any labor, services, materials and supplies used or furnished in
the Construction of the Project, the construction and installation
necessary to provide utility services or other services and all real and
tangible personal property deemed necessary by the Company in connection
with the Project;
(iii) the fees for architectural, engineering, supervisory and
consulting services in connection with Construction of the Project;
(iv) to the extent they shall not be paid by a contractor, the
premiums of all insurance and surety and performance bonds required to be
maintained in connection with the Construction of the Project;
(v) any fees and expenses incurred in connection with construction,
perfection and protection of title to the Project;
(vi) interest prior to and during the period until completion of
construction of the Project; and
(vii) any administrative or other fees charged by the Issuer or
reimbursement thereof of expenses, in connection with the Project to the
completion of construction of the Project.
"Counsel" shall mean an attorney or firm of attorneys acceptable to the
Trustee, and may, but need not, be counsel to the Issuer or the Company.
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"Credit Facility" shall mean the Letter of Credit or any Alternate Credit
Facility delivered to the Trustee pursuant to Section 6.3 of the Indenture.
"Credit Facility Issuer" shall mean the Bank with respect to the Letter of
Credit and the institution issuing any Alternate Credit Facility.
"Credit Facility Trustee" shall mean Branch Banking and Trust Company,
Wilson, North Carolina.
"Eminent Domain" shall mean the taking of title to, or the temporary use
of, the Project or any part thereof pursuant to eminent domain or condemnation
proceedings, or any voluntary conveyance of any part of the Project during the
pendency of, or as a result of a threat of, such proceedings.
"Event of Default" or "Default" shall have the meaning set forth in
Section 9.1 hereof.
"Financing Statements" means any and all financing statements (including
continuation statements) filed for record from time to time to perfect the
security interests created or assigned pursuant to the Bond Documents.
"Indenture" shall mean the Trust Indenture of even date herewith by and
among the Issuer, the Credit Facility Trustee and the Trustee, together with any
amendments or supplements thereof permitted thereby.
"Issuer" shall mean the Development Authority of XxXxxxxx County and its
successors and assigns.
"Issuer Documents" shall mean collectively the Indenture, the Placement
Agent Agreement and this Lease Agreement.
"Issuer Representative" shall mean any one of the persons at the time
designated to act on behalf of the Issuer by written certificate furnished to
the Company, the Trustee and the Credit Facility Trustee containing the specimen
signatures of such persons and signed on behalf of the Issuer by the Chairman.
"Letter of Credit" shall mean the irrevocable direct pay letter of credit
dated December 31, 1997 in the amount of $10,201,370 issued by the Bank, with an
initial term of three (3) years, subject to any extensions thereof.
"Letter of Credit Documents" shall mean the Letter of Credit, the
Reimbursement Agreement, and the Pledge Agreement.
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"Lease Agreement" shall mean this Lease Agreement and any amendments and
supplements thereto permitted by the Indenture.
"Net Proceeds," when used with respect to (i) any insurance proceeds or
(ii) any award resulting from, or other amount received in connection with,
Eminent Domain, means the gross proceeds from such proceeds, award or other
amount, less all expenses (including attorneys' fees) incurred in the
realization thereof.
"Overdue Rate" shall mean the Prime Rate, or the maximum contract rate
permitted by law, whichever is lower.
"Payment of the Bonds" shall mean payment of (i) the principal of and
interest on the Bonds in accordance with their terms whether through payment at
maturity, upon acceleration or prepayment, (ii) all amounts due as
Administrative Expenses or otherwise, and (iii) any and all other liabilities
and obligations arising under the Indenture and this Lease Agreement; in any
case, payment in such a manner that all such amounts due and owing with respect
to the Bonds shall have been paid.
"Placement Agent" shall mean the securities dealer, bank or trust company
which is designated by the Company with the consent of the Credit Facility
Issuer, which will use its best efforts to arrange for the initial placement of
the Bonds and which will agree to establish the Preliminary Fixed Rate and to
use its best efforts to arrange for the sale of Tendered Bonds on the Conversion
Date, all as more particularly described in Section 2.2(e) of the Indenture.
"Placement Agent Agreement" shall mean that certain letter agreement dated
the date of issuance of the Bonds among the Issuer the Company and Placement
Agent for the initial placement of the Bonds.
"Pledge Agreement" shall mean the Pledge Agreement of even date herewith
by the Company to the Bank, and any amendments or supplements thereof.
"Prime Rate", prior to the Conversion Date, shall mean that rate of
interest per annum announced by First Union National Bank at its principal
office in Charlotte, North Carolina, from time to time to be its "prime rate",
and after the Conversion Date shall mean the interest rate published in the
"Money Rate" table of The Wall Street Journal as such rate (or if a range of
rates is published, then the highest rate in such range). In the event that The
Wall Street Journal shall abolish or abandon the practice of publishing a "prime
rate", or should the same become unascertainable, the Trustee shall designate a
comparable reference rate which shall be deemed to be the Prime Rate for
purposes hereof.
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"Project" shall mean the financing, in whole or in part, of the
acquisition, construction, installation and equipping of an industrial facility
on approximately 49 acres of land located in XxXxxxxx, Georgia and all related
real and personal property thereto, as more fully set forth on Exhibit B hereto.
"Project Fund" shall mean the trust fund so designated which is
established pursuant to Section 4.1 of the Indenture.
"Reimbursement Agreement" shall mean the Letter of Credit and
Reimbursement Agreement, of even date herewith, by and between the Company and
the Bank, and any supplements or amendments thereto.
"Remarketing Agent" shall mean First Union National Bank, Charlotte, North
Carolina and its successors as provided in Section 12.1 of the Indenture.
"Remarketing Agreement" shall mean the Remarketing Agreement of even date
herewith between the Company and the Remarketing Agent.
"Security Interest" or "security interests" shall refer to the security
interests created in the Indenture.
"Series 1997 Bonds" shall mean the Development Authority of XxXxxxxx
County Taxable Industrial Development Revenue Bonds (Advance Stores Company,
Incorporated Project), Series 1997, issued by the Issuer under this Indenture.
"State" shall mean the State of Georgia.
"Tender Agency Agreement" means the Tender Agency Agreement of even date
herewith among the Company, the Trustee and the Tender Agent, and any amendments
or supplements thereof.
"Term of Lease Agreement" means the duration of the usufruct or leasehold
interest created hereby as specified in Section 11.18 hereof.
"Trustee" shall mean the banking institution at the time serving as
Trustee under the Indenture.
SECTION 1.2 RULES OF CONSTRUCTION.
1. Words of masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders, and words of the neuter
gender shall be deemed and construed to include correlative words of the
masculine and feminine genders.
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2. The table of contents, captions and headings in this Lease Agreement
are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or Sections of this Lease Agreement.
3. All references herein to particular Articles or Sections are
references to Articles or Sections of this Lease Agreement unless some other
reference is established.
4. All references herein to the Company shall be deemed to refer to
each of the Persons if more than one are described by such term. Obligation,
duty or liability of the Company shall be a joint and several agreement,
obligation, duty or liability of each of the Persons so described by such term.
5. Any terms not defined herein but defined in any of the other Bond
Documents shall have the same meaning herein.
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ARTICLE II
REPRESENTATIONS
SECTION 2.1 REPRESENTATIONS BY THE ISSUER. The Issuer represents,
warrants and agrees as follows:
(a) The Issuer is a public body corporate and politic under the laws of
the State of Georgia.
(b) Under the provisions of the Act, the Issuer is duly authorized to
enter into, execute and deliver or, if appropriate, accept the Issuer Documents,
to issue and deliver the Bonds, to undertake the transactions contemplated by
the Issuer Documents and the Bonds and to carry out its obligations hereunder
and thereunder.
(c) The Issuer proposes to issue the Bonds in the aggregate principal
amount of $10,000,000 to finance, in whole or in part, the acquisition,
construction, installation and equipping of the Project.
(d) By the Bond Resolution, the Issuer has duly authorized the execution,
delivery and performance or, if appropriate, acceptance of the Issuer Documents,
including the borrowing under and the issuance and performance of the Bonds.
(e) The Bonds will be issued under and pursuant to the Indenture and will
mature, bear interest, and have the other terms and provisions set forth or
provided for in the Indenture.
(f) To the best of its knowledge, no event has occurred and no condition
exists with respect to the Issuer which would constitute an "event of default"
as defined in this Lease Agreement or the Indenture or which, with the lapse of
time or with the giving of notice or both, would become an "event of default"
under this Lease Agreement or the Indenture.
(g) Neither this Lease Agreement nor any of the Pledged Revenues have been
pledged or hypothecated in any manner or for any purpose other than as provided
in the Indenture as security for the payment of the Bonds. The Bonds constitute
the only bonds or other obligations of the Issuer in any manner payable from the
revenues to be derived from this Lease Agreement, and except for the Bonds, no
bonds or other obligations have been or will be issued on the basis of this
Lease Agreement.
(h) No member of the Issuer voting on this financing has any interest
whatsoever in the Company or in the transactions contemplated by this Lease
Agreement.
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(i) The Issuer will not enter into any agreement or instrument which might
in any way prevent or materially impair its ability to perform its obligations
under the Bond Documents.
(j) So long as any Bonds shall remain unpaid, the Issuer will, upon
request of the Trustee or the Credit Facility Trustee and provided it shall be
furnished with sufficient funds to pay all costs and expenses (including
attorney's fees) reasonably incurred by it as such costs and expenses accrue:
(i) take all action and do all things which it is authorized by law
to take and do in order to perform and observe all covenants and
agreements on its part to be performed and observed under the Bond
Documents; and
(ii) execute, acknowledge, where appropriate, and deliver from time
to time promptly at the request of the Trustee or the Credit Facility
Trustee all such instruments and documents as in the opinion of the
Trustee or the Credit Facility Trustee are necessary or desirable to
carry out the intent and purpose of the Bonds Documents or any of them.
(k) So long as any Bonds shall remain unpaid, the Issuer will not, without
the written consent of the Trustee and the Credit Facility Trustee:
(i) take any action which, directly or indirectly, adversely
affects its existence or status as a public body, corporate and politic
under the laws of the State; or
(ii) pledge any interest in this Lease Agreement, or the amounts to
be derived herefrom, other than as contemplated by the Indenture.
SECTION 2.2 REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE COMPANY. The
Company represents, warrants and covenants and agrees as follows:
(a) The Company is a corporation duly organized and validly existing under
the laws of the State of Virginia. The Company is not in violation of any
provision of its Articles of Incorporation, as amended, has the corporate power
to enter into and perform this Agreement, and has duly authorized by proper
corporate action the execution and delivery of this Agreement, and is qualified
to do business and is in good standing under the laws of the State.
(b) Neither the execution and delivery of this Lease Agreement, the
Remarketing Agreement, the Tender Agency Agreement or the Pledge Agreement, nor
the consummation of the transactions contemplated hereby and thereby, nor the
fulfillment of or compliance with the terms and conditions hereof or thereof (i)
conflicts with or results
9
in a breach of the articles of incorporation or the bylaws of the Company or
constitutes a default under the articles or bylaws of the Company, (ii)
materially conflicts with or results in a material breach of the terms,
conditions, or provisions of any agreement or instrument to which the Company is
now a party or by which the Company is bound, or constitutes a material default
under any of the foregoing, or (iii) results in the creation or imposition of
any lien, charge or encumbrance whatsoever upon any of the property or assets of
the Company other than as expressly contemplated by the terms of any such
instrument or agreement.
(e) There is no action, suit, proceeding, inquiry or investigation, at law
or in equity, before or by any court, public board or body, known to be pending
or threatened against or affecting the Company or any of its officers, nor to
the best knowledge of the Company is there any basis therefor wherein an
unfavorable decision, ruling, or finding would materially adversely affect the
transactions contemplated by this Lease Agreement or which would adversely
affect, in any way, the validity or enforceability of the Bonds, this Lease
Agreement, the Pledge Agreement, the Tender Agency Agreement, the Remarketing
Agreement, or any agreement or instrument to which the Company is a party, used
or contemplated for use in the consummation of the transactions contemplated
hereby.
(f) The Project is of the type authorized and permitted by the Act.
(g) The Company will use due diligence to cause the Project to be operated
in accordance with the laws, rulings, regulations and ordinances of the State
and the departments, agencies and political subdivisions thereof. The Company
has obtained or will cause to be obtained all requisite approvals of the State
and of other federal, state, regional and local governmental bodies for the
construction and equipping of the Project.
(h) The Company will keep all taxes and assessments against the Project
fully paid before the same become delinquent.
(i) The Company will fully and faithfully perform all the duties and
obligations which the Issuer has covenanted and agreed in the Indenture to cause
the Company to perform, any duties and obligations which the Company is
required in the Indenture to perform and any delegable or assignable duties and
obligations which the Issuer is required in the Indenture to perform. The
foregoing shall not apply to any duty or undertaking of the Issuer which by its
nature cannot be delegated or assigned.
(j) As of the date of execution and delivery of this Lease Agreement,
there exists no Event of Default or any condition or event which would
constitute, or with the passage of time or the giving of notice, or both, would
constitute an Event of Default hereunder.
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(k) The Company shall promptly provide written notice to the Issuer, the
Trustee and the Credit Facility Trustee if the Company becomes aware of an Event
of Default as such term is used in Section 9.1 hereof.
All of the above representations, warranties, covenants and agreements
shall survive the execution of this Lease Agreement.
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ARTICLE III
PERMITS AND APPROVALS; COMPANY CONSENT TO ASSIGNMENT
SECTION 3.1 APPROVALS REQUIRED FOR THE PROJECT. The Company has obtained
or caused to be obtained all necessary material permits and approvals for the
operation and maintenance of the Project and has complied and will continue to
comply in all material respects with all lawful requirements of any governmental
body regarding the use or condition of the Project. The Company may, however,
contest any such requirement by an appropriate proceeding diligently prosecuted.
SECTION 3.2 COMPANY CONSENT TO ASSIGNMENT OF AGREEMENT AND EXECUTION OF
INDENTURE. The Company understands that the Issuer, as security for the payment
of the principal of, and the interest on, the Bonds, will assign and pledge to,
and create a security interest in favor of, the Trustee and the Credit Facility
Trustee pursuant to the Indenture certain of its rights, title and interest in
and to this Lease Agreement including all Pledged Revenues, reserving, however,
its rights (a) pursuant to this Lease Agreement providing that notices,
approvals, consents, requests and other communications be given to the Issuer,
(b) to reimbursement and payment of costs and expenses under this Lease
Agreement, and (c) to indemnification and to exemption from liability, both
individual and corporate, under this Lease Agreement, and the Company hereby
agrees and consents to such assignment and pledge. The Company acknowledges that
it has received a copy of the Indenture and consents to the execution of the
same by the Issuer.
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ARTICLE IV
ISSUANCE OF THE BONDS
SECTION 4.1 AGREEMENT TO ISSUE THE BONDS. To provide funds to finance the
acquisition, construction and improving of the Project, the Issuer agrees that
it will authorize, sell, issue and deliver the Bonds in the aggregate principal
amount of $10,000,000 in the manner set forth in the Indenture and cause the
proceeds of the Bonds to be applied as provided in the Indenture.
SECTION 4.2 DISBURSEMENTS FROM THE PROJECT FUND. The Issuer has, in the
Indenture, authorized and directed the Trustee to make disbursements from the
Project Fund in accordance with the terms of this Lease Agreement including
refinancing any loan as more fully set forth in the Indenture.
SECTION 4.3 CLOSEOUT OF THE PROJECT FUND. The Completion Date for the
Project shall be promptly established and evidenced to the Trustee and shall be
the date on which the Company Representative delivers to the Trustee a
certificate stating that, except for amounts retained by the Trustee at the
Company's direction for any Cost of the Project not then due and payable, the
Construction of the Project has been completed substantially in accordance with
the plans and specifications, if any, and all costs and expenses incurred in
connection therewith have been paid. Notwithstanding the foregoing, such
certificate may state that it is given without prejudice to any rights against
third parties that exist at the date of such certificate or that may
subsequently come into being.
SECTION 4.4 DISPOSITION OF THE BALANCE IN THE PROJECT FUND. Pursuant to
Section 4.7 of the Indenture, as soon as practicable after, and in any event
within sixty (60) days from, the Trustee's receipt of the certificate mentioned
in Section 4.3 hereof, all amounts remaining in the Project Fund, including any
unliquidated investments made with money theretofore deposited in the Project
Fund, except for amounts to be retained in the Project Fund for any Cost of the
Project not then due and payable as provided in Section 4.3 hereof, shall be
transferred by the Trustee to the Bond Fund and shall be applied immediately as
set forth in the written direction of the Company as described in subsections
(a) through (c) of Section 4.7 of the Indenture.
SECTION 4.5 COMPANY REQUIRED TO PAY IN EVENT PROJECT FUND INSUFFICIENT.
In the event the moneys in the Project Fund available for the Project are not
sufficient for the Project, the Company agrees to provide such funds and to pay
the amount in excess of the moneys available therefor in the Project Fund. The
Issuer does not make any warranty, either express or implied, that the moneys
paid into the Project Fund will be sufficient for such purpose. The Company
agrees that if after exhaustion of the moneys in the Project Fund, the Company
should pay any amount to finance the construction and equipping of the Project
pursuant to the provisions of this Section, the Company shall not be entitled to
any reimbursement therefor from the Issuer, the Trustee or the Bondholders,
13
nor shall the Company be entitled to any diminution of the amounts payable under
Section 5.2 hereof.
SECTION 4.6 NO THIRD PARTY BENEFICIARY. It is specifically agreed between
the parties executing this Lease Agreement that it is not intended by any of the
provisions of any part of this Lease Agreement to create in the public or any
member thereof, other than as may be expressly provided herein or as
contemplated in the Indenture, a third party beneficiary hereunder, or to
authorize anyone not a party to this Lease Agreement to maintain a suit for
personal injuries or property damage pursuant to the terms or provisions of this
Lease Agreement. The duties, obligations, and responsibilities of the parties to
this Lease Agreement with respect to third parties shall remain as imposed by
law.
SECTION 4.7 CONSTRUCTION OF PROJECT. The Issuer shall have a building
constructed at the Project according to the requirements and specifications of
the Company.
14
ARTICLE V
LEASE PROVISIONS
SECTION 5.1 AGREEMENT TO LEASE THE PROJECT. The Issuer hereby demises and
leases to the Company and the Company hereby leases from the Issuer, for and
during the Term of Lease Agreement, the Project.
SECTION 5.2 RENTAL PAYMENTS.
(a) One day prior to the first Business Day of each month beginning on the
first Business Day of February, 1998, and in each year thereafter until payment
in full of the Bonds, the Company shall pay or cause to be paid to the Trustee
for the account of the Issuer as rent a sum equal to the amount payable on each
such date as principal of (whether at maturity or upon redemption prior to
maturity) and interest on the Bonds, as provided in the Indenture. Each rental
payment under this Section shall be sufficient to pay the total amount of
principal (whether at maturity or upon redemption prior to maturity) and
interest payable on such payment date, and if at any payment date the balance in
the Bond Fund is insufficient to make required payments of principal and
interest on such date, the Company shall forthwith pay any such deficiency.
Such payments may be applied by the Trustee to reimburse the Credit Facility
Issuer if funds for such payment or redemption are obtained or are to be
obtained pursuant to a draw under the Credit Facility. On or by the third
Business Day before the first Business Day of each month the Company's payment
has not been received, the Issuer hereby directs the Trustee, in accordance with
Section 5.2(d) of the Indenture, to give telephonic and written notice to the
Company of the upcoming rental payment date.
Anything herein to the contrary notwithstanding, any amount at any time
held by the Trustee in the Bond Fund shall be credited against the next
succeeding rental payment and such credit shall reduce the payment to be then
made by the Company; and further, if the amount held by the Trustee in the Bond
Fund should be sufficient to pay at the times required the principal of and
interest on all Bonds then remaining unpaid, the Company shall not be obligated
to make any further rental payments under the provisions of this Section.
(b) As additional rent, the Company agrees to pay to the Trustee and the
Credit Facility Trustee until the Bonds are paid in full, (i) an amount equal to
the aggregate annual fee of the Trustee and the Credit Facility Trustee which is
$3,500 for the ordinary services of the Trustee rendered and its ordinary
expenses incurred under the Indenture, (ii) the reasonable fees and charges of
the Trustee and any other paying agent for acting as paying agent and as Bond
Registrar as and when the same become due, and (iii) the reasonable fees and
charges of the Trustee for extraordinary services rendered by it and
extraordinary expenses incurred by it under the Indenture, as and when the same
become due.
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If the Company should fail to make any of the payments required in this
paragraph, the item or installment so in default shall continue as an obligation
of the Company until the same shall have been fully paid, and the Company
agrees to pay the same with interest thereon, to the extent legally enforceable,
at the Overdue Rate until paid.
SECTION 5.3 SECURITY FOR PAYMENTS UNDER THE LEASE AGREEMENT. It is
understood and agreed that payments required to be made to the Issuer under this
Lease Agreement are assigned and pledged to the Credit Facility Trustee and the
Trustee under the Indenture. The Company hereby assents to such assignment and
pledge. The Company further agrees that (i) all payments under this Lease
Agreement shall be paid directly to the Trustee for the account of the Issuer
and shall be deposited in the Bond Fund; and (ii) all payments required to be
made as provided in Section 5.2(b) hereof shall be paid directly to the Trustee
for its own use or for payment to the Credit Facility Trustee, or any paying
agents or Counsel.
SECTION 5.4 COMPANY'S PERFORMANCE UNDER INDENTURE. The Company agrees,
for the benefit of the holders from time to time of the Bonds, to do and perform
all acts and things contemplated in the Indenture to be done or performed by it.
SECTION 5.5 NO SET-OFF. The obligation of the Company to make the
payments required by this Lease Agreement shall be absolute and unconditional.
The Company will pay without abatement, diminution or deduction (whether for
taxes or otherwise) all such amounts regardless of any cause or circumstance
whatsoever including, without limitation, any defense, set-off, recoupment or
counterclaim that the Company may have or assert against the Issuer, the
Trustee, the Credit Facility Trustee, any Bondholder or any other person. The
provisions of this Section 5.5, however, are subject to the provisions of the
last paragraph of Section 5.2.
SECTION 5.6 LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT. As a further
condition to the Issuer's financing the Project hereunder, the Company shall:
(a) cause the Letter of Credit to be issued and delivered to the Credit
Facility Trustee as security for the Bonds and until the Conversion Date, cause
a Credit Facility meeting the requirements of Section 6.3 of the Indenture to be
maintained with the Credit Facility Trustee; and
(b) enter into the Reimbursement Agreement with the Bank in form and
substance satisfactory to the Bank and execute and deliver the other Letter of
Credit Documents required by the Bank.
SECTION 5.7 QUIET ENJOYMENT. The Issuer warrants and agrees that it will
defend the Company in the quiet enjoyment and peaceable possession of the
Project, free from all claims of all persons claiming by, through or under the
Issuer, throughout the Term
16
of Lease Agreement, so long as the Company shall perform the agreements to be
performed by it hereunder, or so long as the period for remedying any failure in
such performance shall not have expired.
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ARTICLE VI
MAINTENANCE AND MODIFICATIONS; TAXES AND UTILITY
CHARGES; INSURANCE AND EMINENT DOMAIN
SECTION 6.1 MAINTENANCE AND MODIFICATION OF THE PROJECT BY THE COMPANY.
(a) The Company agrees that, until Payment of the Bonds shall be made, it
will at its own expense, (1) keep the Project or cause the Project to be kept in
as reasonably safe condition as its operations shall permit, (2) make or cause
to be made from time to time all necessary repairs thereto and renewals and
replacements thereof and otherwise keep the Project in good repair and in good
operating condition, and (3) not permit or suffer others to commit a nuisance on
or about the Project. The Company shall pay or cause to be paid all costs and
expenses of operation and maintenance of the Project.
(b) The Company may, at its own expense, make from time to time any
additions, modifications or improvements to the Project that it may deem
desirable for its business purposes and that do not materially impair the
effective use or decrease the value of the Project.
SECTION 6.2 TAXES AND UTILITY CHARGES.
(a) The Company shall pay as the same respectively become due, (i) all
taxes, assessments, levies, claims and charges of any kind whatsoever that may
at any time be lawfully assessed or levied against or with respect to the
Project (including, without limiting the generality of the foregoing, any tax
upon or with respect to the income or profits of the Issuer from the Project and
that, if not paid, would become a charge on the payments to be made under this
Lease Agreement prior to or on a parity with the charge thereon created by the
Indenture and including ad valorem, sales and excise taxes, assessments and
charges upon the Company's interest in the Project), (2) all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Project and (3) all assessments and charges lawfully made by any governmental
body for public improvements that may be secured by a lien on any portion of the
Project.
(b) The Company may, at its expense, contest in good faith any such levy,
tax, assessment, claim or other charge, but the Company may permit the items so
contested to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom only if the Company shall notify the Issuer and
the Trustee that in the opinion of Counsel, by non-payment of any such items,
the rights of the Trustee with respect to this Loan Agreement created by the
assignment under the Indenture, as to the rights assigned under this Lease
Agreement or any part of the payments to be made under this Lease Agreement will
not be materially endangered, nor will the Project or any part thereof be
subject to loss or forfeiture. If the Company is unable to deliver such an
opinion
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of Counsel, the Company shall promptly pay or bond and cause to be satisfied or
discharged all such unpaid items or furnish, at the expense of the Company,
indemnity satisfactory to the Trustee; but provided further, that any tax,
assessment, charge, levy or claim shall be paid forthwith upon the commencement
of proceedings to foreclose any lien securing the same. The Issuer, the Credit
Facility Trustee and the Trustee, at the expense of the Company, will cooperate
fully in any such permitted contest.
(c) If the Company shall fail to pay any of the items required to be paid
by it pursuant to (a) above, the Issuer or the Trustee may (but shall be under
no obligation to) pay the same, and any amounts so advanced therefor by the
Issuer or the Trustee shall become an additional obligation of the Company to
the one making the advancement which amounts, together with interest thereon at
the Overdue Rate, from the date of payment, the Company agrees to pay on demand
therefor.
(d) The Company shall furnish the Issuer and the Trustee, upon request,
with proof of payment of any taxes, governmental charges, utility charges,
insurance premiums or other charges required to be paid by the Company under
this Lease Agreement.
SECTION 6.3 CASUALTY AND LIABILITY INSURANCE REQUIRED. Until Payment of
the Bonds shall be made, the Company will keep the Project properly and
continuously insured against such risks as are customarily insured against by
businesses of like size and type engaged in the same or similar operations
including, without limiting the generality of the foregoing, all insurance
required under the Reimbursement Agreement.
SECTION 6.4 ADVANCES BY THE ISSUER OR THE TRUSTEE. In the event the
Company shall fail to maintain, or cause to be maintained, the full insurance
coverage required by this Lease Agreement or shall fail to keep or cause to be
kept the Project in good repair and good operating condition, the Issuer or the
Trustee may (but shall be under no obligation to), after ten (10) days written
notice to the Company, contract for the required policies of insurance and pay
the premiums on the same or make any required repairs, renewals and
replacements; and the Company agrees to reimburse the Issuer and the Trustee to
the extent of the amounts so advanced by them or any of them with interest
thereon at the Overdue Rate, from the date of advance to the date of
reimbursement. Any amounts so advanced by the Issuer or the Trustee shall become
an additional obligation of the Company, shall be payable on demand, and shall
be deemed a part of the obligation of the Company.
SECTION 6.5 COMPANY TO MAKE UP DEFICIENCY IN INSURANCE COVERAGE. The
Company agrees that to the extent that it shall not carry insurance required by
Section 6.3 hereof, it shall pay promptly to the Trustee for application in
accordance with the provisions of Section 6.7 hereof, such amount as would have
been received as Net Proceeds by the Trustee under the provisions of Section 6.7
hereof had such insurance been carried to the extent required.
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SECTION 6.6 EMINENT DOMAIN. Unless the Company shall have prepaid its
obligations pursuant to the provisions of Article 10 hereof, in the event that
title to, or the temporary use of, the Project or any part thereof shall be
taken by Eminent Domain, the Company shall be obligated to continue to make the
payments required to be made pursuant to this Lease Agreement and the Net
Proceeds received as a result of such Eminent Domain shall be applied as
provided in Section 6.7(b) hereof.
SECTION 6.7 APPLICATION OF NET PROCEEDS OF INSURANCE AND EMINENT DOMAIN.
(a) The Net Proceeds of the insurance carried pursuant to the provisions
of Section 6.3 hereof shall be applied by the Company toward extinguishment of
the defect or claim or satisfaction of the liability with respect to which such
insurance proceeds may be paid.
(b) The Net Proceeds of the insurance carried with respect to the Project
pursuant to the provisions of Section 6.3 hereof, and the Net Proceeds resulting
from Eminent Domain shall be paid to the Trustee and applied as follows:
(1) If the amount of the Net Proceeds does not exceed $50,000, the
Net Proceeds shall be paid to the Company and shall be applied to any
repair, replacement, renewal or improvement of the Project, if any, as the
Company deems necessary.
(2) If the amount of the Net Proceeds exceeds $50,000, the Net
Proceeds shall be paid to and held by the Trustee as a special trust fund
and invested in accordance with Section 6.2 of the Indenture and the
provisions of Article 11 hereof pending receipt of written instructions
from the Company. At the option of the Company, to be exercised within
the period of ninety (90) days from the receipt by the Trustee of such Net
Proceeds, the Company shall advise the Trustee that (A) the Company will
use the Net Proceeds for the repair, replacement, renewal or improvement
of the Project (such funds to be delivered by the Trustee to the Company),
or (B) the Net Proceeds shall be applied to the prepayment of the Bonds as
provided in Article 10 hereof. If the Company does not advise the Trustee
within said period of ninety (90) days that it elects to proceed under
clause (A) to use such Net Proceeds for the repair, replacement, renewal
or improvement of the Project, such Net Proceeds shall be applied to the
prepayment of the Bonds pursuant to Article 10 hereof. Any prepayment
pursuant to the preceding sentence shall be effected on the next Interest
Payment Date not less than thirty (30) days after the expiration of said
period of ninety (90) days without an election by the Company.
20
(c) The Company agrees that if it shall elect to use the moneys paid to
the Trustee pursuant to subsection (b)(2) of this Section 6.7 for the repair,
replacement, renewal or improvement of the Project, it will restore the Project,
or cause the same to be done, to a condition substantially equivalent to its
condition prior to the occurrence of the event to which the Net Proceeds were
attributable. To the extent that the Net Proceeds are not sufficient to restore
or replace the Project, the Company shall use its own funds to complete the
restoration or replacement of the Project. Prior to the commencement of such
work, the Trustee may require the Company to furnish a completion bond, escrow
deposit or other satisfactory evidence of the Company's ability to pay or
provide for the payment of any estimated costs in excess of the amount of the
Net Proceeds. Any balance remaining after any such application of such Net
Proceeds shall be paid to the Company. The Company shall be entitled to the Net
Proceeds of any insurance or resulting from Eminent Domain relating to property
of the Company not included in the Project and not providing security for this
Lease Agreement.
SECTION 6.8 PARTIES TO GIVE NOTICE. In case of any material damage to or
destruction of all or any part of the Project, the Company shall give prompt
notice thereof to the Issuer, the Credit Facility Issuer and the Trustee. In
case of a taking or proposed taking of all or any part of the Project or any
right therein by Eminent Domain, the Company shall give prompt notice thereof to
the Issuer, the Credit Facility Issuer and the Trustee. Each such notice shall
describe generally the nature and extent of such damage, destruction, taking,
loss, proceeding or negotiations.
SECTION 6.9 NO WARRANTY OF CONDITION OR SUITABILITY BY ISSUER. THE ISSUER
MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE PROJECT OR THE CONDITION
THEREOF, OR THAT THE PROJECT WILL BE SUITABLE FOR THE PURPOSES OR NEEDS OF THE
COMPANY. THE ISSUER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
THAT THE COMPANY WILL HAVE QUIET AND PEACEFUL POSSESSION OF THE PROJECT. THE
ISSUER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE MERCHANTABILITY, CONDITION OR WORKMANSHIP OF ANY PART OF THE PROJECT OR ITS
SUITABILITY FOR THE COMPANY'S PURPOSES.
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ARTICLE VII
SPECIAL COVENANTS
SECTION 7.1 ACCESS TO THE PROJECT AND INSPECTION. The Credit Facility
Issuer, the Trustee and the Issuer shall have the right, at all reasonable times
upon the furnishing of reasonable notice to the Company under the circumstances,
to enter upon the Project site and to examine and inspect the Project. The
Trustee, the Credit Facility Issuer, the Issuer and their duly authorized agents
shall also have such right of access to the Project as may be reasonably
necessary for its proper maintenance, in the event of failure by the Company to
perform its obligations relating to maintenance under this Lease Agreement. The
Company hereby covenants to execute, acknowledge and deliver all such further
documents, and do all such other acts and things as may be reasonably necessary
to grant to the Credit Facility Issuer, the Trustee and the Issuer such right of
entry. The Credit Facility Issuer, the Trustee and the Issuer shall also be
permitted, at all reasonable times, to examine the books and records of the
Company with respect to obligations of the Company hereunder, but neither shall
be entitled to access to trade secrets or other proprietary information (other
than financial information) of the Company. All information obtained in any such
examination shall be kept confidential and shall not be disclosed except in
connection with any proceedings to enforce the Company's obligations hereunder.
SECTION 7.2 FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. Subject to the
provisions of the Indenture, the Issuer and the Company agree that they will,
from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements and amendments hereto and such
further instruments as may reasonably be required for correcting any inadequate
or incorrect description of the Project and for carrying out the intention or
facilitating the performance of this Lease Agreement.
SECTION 7.3 RECORDING AND FILING; OTHER INSTRUMENTS.
(a) The Company covenants that it will, upon the request of the Credit
Facility Trustee and at the Company's expense, cause Counsel in the State to
take all steps as are reasonably necessary to render an opinion to the Issuer
and the Credit Facility Trustee to the effect that all financing statements,
continuation statements, notices and other instruments required by applicable
law have been recorded or filed or re-recorded or re-filed in such manner and in
such places required by law in order to fully preserve and protect the rights of
the Trustee and the Credit Facility Trustee in the granting by the Issuer of
certain rights of the Issuer, pursuant to the Indenture, under this Lease
Agreement.
(b) The Company, the Issuer and the Trustee shall execute and deliver all
instruments and shall furnish all information and evidence deemed necessary or
advisable by such Counsel to enable such Counsel to render the opinion referred
to in subsection (a) of this Section. The Company, at the request of the Credit
Facility Trustee, shall file
22
and re-file and record and re-record or cause to be filed and re-filed and
recorded and re-recorded all instruments required to be filed and re-filed and
recorded or re-recorded pursuant to the opinion of such Counsel and shall
continue or cause to be continued the liens of such instruments for so long as
the Bonds shall be outstanding, except as otherwise required by this Lease
Agreement.
SECTION 7.4 ADMINISTRATIVE EXPENSES. The Company shall pay to or for the
account of the Issuer within thirty (30) days after notice thereof all
reasonable costs and expenses incurred by the Issuer in connection with the
financing and administration of the Project, except such as may be paid out of
the proceeds of the Bonds, including, without limitation, the costs of
administering this Lease Agreement and the fees and expenses of the Trustee, and
the Credit Facility Trustee, attorneys, consultants and others.
SECTION 7.5 INDEMNITY AGAINST CLAIMS.
(a) The Company will pay and discharge and will indemnify and hold
harmless the Issuer and the Trustee from (1) any lien or charge upon amounts
payable hereunder by the Company to the Issuer, and (2) any taxes, assessments,
impositions and other charges in respect of the Project.
(b) If any claim of any such lien or charge upon payments, or any such
taxes, assessments, impositions or other charges, are sought to be imposed, the
Issuer or the Trustee, as the case may be, will give prompt notice to the
Company, and the Company shall have the right and duty to assume, and shall
assume, the defense thereof, with full power to litigate, compromise or settle
the same in its sole discretion.
SECTION 7.6 INDEMNITY OF ISSUER AND TRUSTEE. If the Issuer or the
Trustee, or any director, member, employee, officer, attorney or agent thereof
(collectively the "Indemnified Persons") is made a party defendant to any
litigation concerning the Project or any part thereof, or concerning the
occupancy thereof by the Company, or concerning the issuance of the Bonds, the
Company agrees to indemnify, defend and hold Indemnified Persons harmless from
and against any and all liability by reason of such litigation, including
reasonable attorneys' fees and expenses incurred by the Indemnified Persons,
whether or not any such litigation is prosecuted to judgment. If the Issuer
commences an action against the Company to enforce any of the terms of any of
the documents executed in connection with the Bonds, or for the breach by the
Company of any such terms, the Company shall pay to the Issuer reasonable
attorneys' fees and expenses in connection with such action, and the right to
such attorneys' fees and expenses shall be enforceable whether or not such
action is prosecuted to judgment. If the Company breaches any term of any of the
documents executed in connection with the Bonds, the Issuer may employ an
attorney or attorneys to protect its rights, and in the event of such employment
following any such breach by the Company, the Company shall pay the reasonable
attorneys' fees
23
and expenses of the Issuer so incurred, whether or not any action is actually
commenced against the Company by reason of such breach.
It is the intention of the parties that the Indemnified Persons shall not
incur pecuniary liability by reason of the terms of this Agreement or by reason
of the undertakings of the Indemnified Persons required hereunder in connection
with the issuance of the Bonds or execution of this Lease Agreement or the
Indenture or in connection with the performance of any act by the Indemnified
Persons requested by the Company or in any way arising from the transaction with
which this Agreement is a part arising in any manner in connection with the
Project or financing of the Project; nevertheless, if any of the Indemnified
Persons should incur any such pecuniary liability, then in such event the
Company shall indemnify and hold the Indemnified Persons harmless against all
claims by and on behalf of any person arising out of the same, and all costs
incurred in connection with any claim, action or proceeding brought thereon, and
upon notice from the Issuer, the Company shall defend the Indemnified Persons in
any such action, or proceeding in consultation with counsel for the Issuer. In
the event any proceeding shall be initiated against any of the Indemnified
Persons, the Company shall furnish a defense to the Indemnified Persons, shall
be permitted to control, in the exercise of its reasonable judgment, the defense
of any such action or proceeding, and pay all fees of counsel to the Issuer.
Any settlement of litigation that involves the Issuer shall require the consent
of the Issuer.
Notwithstanding anything to the contrary contained herein, the Company
shall have no liability to indemnify the Issuer or the Trustee against claims or
damages resulting from the Issuer's or the Trustee's own gross negligence or
willful misconduct.
(b) No recourse shall be had for the enforcement of any obligation,
promise or agreement of the Issuer contained herein or in the other documents to
which the Issuer is a party or for any claim based hereon or otherwise in
respect hereof or thereof against any director, member, officer, agent, attorney
or employee, as such, in his individual capacity, past, present or future, of
the Issuer or of any successor entity, either directly or through the Issuer or
any successor entity whether by virtue of any constitutional provision, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise.
No personal liability whatsoever shall attach to, or be incurred by, any
director, member, officer, agent, attorney or employee as such, past, present or
future, of the Issuer or any successor entity, either directly or through the
Issuer or any successor entity, under or by reason of any of the obligations,
promises or agreements entered into between the Issuer and the Company, whether
herein contained or to be implied herefrom as being supplemental hereto; and all
personal liability of that character against every such director, member,
officer, agent, attorney and employee is, by the execution of this Lease
Agreement and as a condition of, and as part of the consideration for execution
of this Lease Agreement, expressly waived and released.
24
Notwithstanding any other provision of this Lease Agreement, the Issuer
shall not be liable to the Company or the Trustee or any other person for any
failure of the Issuer to take action under this Lease Agreement unless the
Issuer (a) is requested in writing by an appropriate person to take such action,
(b) is assured of payment of, or reimbursement for, any reasonable expenses in
such action, and (c) is afforded, under the existing circumstances, a reasonable
period to take such action. In acting under this Lease Agreement, or in
refraining from acting under this Lease Agreement, the Issuer may conclusively
rely on the advice of its counsel.
SECTION 7.7 ADDITIONAL INFORMATION. Until payment of the Bonds shall have
occurred, the Company shall promptly from time to time deliver to the Trustee
such information regarding the operations, business affairs and financial
condition of the Company as the Trustee may reasonably request. The Trustee is
hereby authorized to deliver a copy of any such financial information delivered
hereunder to any regulatory authority having jurisdiction over the Trustee and
to any other Person as may be required by law. The Issuer and the Trustee are
authorized to provide information concerning the outstanding principal amount
and payment history of, and other information pertaining to, the Bonds to any
agency or regulatory authority of the State requesting such information.
SECTION 7.8 DEFAULT CERTIFICATES. The Company shall deliver to the
Trustee and the Credit Facility Trustee forthwith, upon obtaining knowledge of
any Event of Default hereunder, under the Indenture or the Reimbursement
Agreement, or an event which would constitute such an Event of Default but for
the requirement that notice be given or time elapse or both, a certificate of
the Company specifying the nature and period of existence thereof and what
action the Company proposes to take with respect thereto.
SECTION 7.9 OBSERVE LAWS. The Issuer and the Company shall observe in all
material respects all applicable laws, regulations and other valid requirements
of any regulatory authority with respect to its operations at the Project.
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ARTICLE VIII
ASSIGNMENT, LEASING AND SELLING
SECTION 8.1 ASSIGNMENT OF THIS LEASE AGREEMENT OR LEASE OR SALE OF THE
PROJECT BY THE COMPANY. The rights of the Company under this Lease Agreement may
be assigned, and the Project may be leased or sold as a whole or in part,
without the necessity of obtaining the consent of the Issuer, the Trustee or the
Credit Facility Trustee, subject to the following conditions:
(a) no assignment, transfer, sale or lease shall relieve the Company from
primary liability for any of its obligations hereunder, and if any such
assignment, transfer, sale or lease occurs, the Company shall continue to remain
primarily liable for the payments specified herein and for performance and
observance of the other agreements on its part herein provided to be performed
and observed by it, subject to the provisions of the last paragraph of Section
5.2;
(b) the assignee, lessee or purchaser shall assume the obligations of the
Company hereunder to the extent of the interest assigned, leased or sold;
(c) the Company shall, within thirty (30) days after the delivery thereof,
furnish or cause to be furnished to the Issuer, to the Trustee and to the Credit
Facility Trustee a true and complete copy of each such assignment, instrument of
transfer, lease or sale agreement, as the case may be, together with any
instrument of assumption; and
(d) if a Credit Facility is in effect, such assignment, transfer, sale or
lease must be permitted under the Reimbursement Agreement or the Credit Facility
Issuer must have given its prior written consent to such assignment, transfer,
sale or lease.
SECTION 8.2 RESTRICTIONS ON TRANSFER OF THE ISSUER'S RIGHTS. Except for
the assignment made pursuant to the Indenture of certain of its rights under
this Lease Agreement, the Issuer will not during the term of this Lease
Agreement sell, assign, transfer or convey any of its interests in this Lease
Agreement except as hereinafter provided in Section 8.3 hereof.
SECTION 8.3 ASSIGNMENT BY THE ISSUER. It is understood, agreed and
acknowledged that the Issuer, as security for payment of the principal of and
interest on the Bonds, will grant to the Trustee pursuant to the Indenture,
inter alia, certain of its right, title and interest in and to this Lease
Agreement (reserving certain of its rights, as more particularly described in
the Indenture).
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.1 EVENTS OF DEFAULT DEFINED. The term "Event of Default" shall
mean any one or more of the following events:
(a) the failure by the Company to pay when due on the first Business Day
of each month beginning on February 1, 1998, any payment of principal of or
interest on or other amount payable under Section 5.2 of this Lease Agreement;
(b) the occurrence of an "Event of Default" or "event of default" under
any of the other Bond Documents upon the expiration of any applicable notice or
cure period;
(c) any representation or warranty of the Company contained in Section 2.2
hereof, or in any document, instrument or certificate delivered pursuant hereto
or to the Indenture or in connection with the issuance and sale of the Bonds
shall be false, misleading or incomplete in any material respect on the date as
of which made and to the extent curable, has not been cured within thirty (30)
days after notice of same from the Issuer, the Trustee or the Credit Facility
Trustee;
(d) failure by the Company to observe and perform any covenant, condition
or agreement on the part of the Company under this Lease Agreement, other than
as referred to in the preceding paragraphs of this Section 9.1, for a period of
thirty (30) days after written notice, specifying such failure and requesting
that it be remedied, is given to the Company by the Issuer, the Credit Facility
Trustee or the Trustee, unless the Issuer, the Credit Facility Trustee and the
Trustee shall agree in writing to an extension of such time prior to its
expiration; provided, however, if such default shall be such that it cannot be
corrected within the applicable period, it shall not constitute an Event of
Default if corrective action is instituted by the Company within the applicable
period and diligently pursued until the default is corrected;
(e) the commencement against the Company of an involuntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or of
any action or proceeding for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or for the winding-up or
liquidation of its affairs and the continuance of any such case, action, or
proceeding unstayed and in effect for a period of ninety (90) consecutive days;
or
(f) the commencement by the Company of a voluntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
consent by it to, or its acquiescence in the appointment of or taking possession
by a receiver, liquidator,
27
assignee, trustee, custodian, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making by it of or
the consent by it to any assignment for the benefit of creditors, or the failure
of the Company generally to pay its debts as such debts become due, or the
taking of any action by the Company in furtherance of any of the foregoing.
SECTION 9.2 REMEDIES ON DEFAULT.
(a) If Payment of the Bonds shall not have been made, whenever any Event
of Default referred to in Section 9.1 hereof shall have happened and shall not
have been waived:
(1) The Issuer may, by written notice, declare all installments of
principal repayable pursuant to this Lease Agreement for the remainder of
the term hereof to be immediately due and payable, whereupon the same,
together with accrued interest thereon as provided for in this Lease
Agreement, shall become immediately due and payable without presentment,
demand, protest or any other notice whatsoever, all of which are hereby
expressly waived by the Company; provided, however, all such amounts shall
automatically be and become immediately due and payable without notice
upon the occurrence of any event described in Section 9.1(e) or 9.1(f)
hereof, which notice the Company hereby expressly waives.
(2) The Issuer may take whatever other action at law or in equity
may appear necessary or desirable to collect the amounts payable pursuant
to this Lease Agreement then due and thereafter to become due, or to
enforce the performance and observance of any obligation, agreement or
covenant of the Company under this Lease Agreement or under any of the
other Bond Documents.
(b) In the enforcement of the remedies provided in this Section 9.2, the
Issuer may treat all reasonable expenses of enforcement including, without
limitation, legal, accounting and advertising fees and expenses, as additional
amounts payable by the Company then due and owing, and the Company agrees to
pay such additional amounts upon demand, the amount of such legal fees to be
without regard to any statutory presumption.
SECTION 9.3 APPLICATION OF AMOUNTS REALIZED IN ENFORCEMENT OF REMEDIES.
Any amounts collected pursuant to action taken under Section 9.2 hereof shall be
paid to the Credit Facility Trustee and applied as set forth in Article IX of
the Indenture.
SECTION 9.4 NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
reserved to the Issuer is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be in
addition to
28
every other remedy given under this Lease Agreement or now or hereafter existing
at law or in equity or by statute. No delay or omission to exercise any right or
power accruing upon the occurrence of an Event of Default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient.
SECTION 9.5 AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. In any Event
of Default, if the Issuer, the Trustee, the Credit Facility Trustee, the Credit
Facility Issuer or any Bondholder employs attorneys or incurs other expenses for
the collection of amounts payable hereunder or for the enforcement of the
performance or observance of any covenants or agreements on the part of the
Company herein contained, the Company agrees that it will on demand therefor pay
to the Issuer, the Trustee, the Credit Facility Trustee, the Credit Facility
Issuer or such Bondholder the reasonable fees of such attorneys and such other
reasonable expenses so incurred by the Issuer, the Trustee, the Credit Facility
Trustee, the Credit Facility Issuer or such Bondholder, the amount of such fees
of attorneys to be without regard to any statutory presumption.
SECTION 9.6 CORRELATIVE WAIVERS. If an "Event of Default" under Section
9.1 of the Indenture shall be cured or waived and any remedial action by the
Credit Facility Trustee or the Trustee rescinded, any correlative default under
this Lease Agreement shall be deemed to have been cured or waived.
29
ARTICLE X
PREPAYMENTS; OPTIONS
SECTION 10.1 OPTIONAL PREPAYMENTS.
(a) The Company is hereby granted, and shall have, the option to prepay
the unpaid principal of the Bonds in whole or in part in accordance with and as
set forth in Section 7.1 of the Indenture with respect to the prepayment of the
Bonds; provided, all prepayments shall be made in immediately available funds
and with interest accrued to the date of prepayment and that any prepayment of
the Bonds in part shall be applied to unpaid installments of principal in
inverse order of maturity. Any prepayment pursuant to this subsection (a) shall
be made by the Company taking, or causing the Issuer to take, the actions
required (1) for Payment of the Bonds, in the case of prepayment of the Bonds in
whole, or (2) to effect prepayment of less than all of the Bonds according to
their terms in the case of a partial prepayment of the Bonds.
(b) In the event of damage, destruction or condemnation of the Project or
any part thereof, the Company may, at its option, pursuant to Section 6.7 hereof
and without penalty or premium, prepay the Bonds in whole or in part; provided
that any such prepayment shall be made in immediately available funds with the
interest accrued to the date of whole or partial prepayment. Any prepayment
pursuant to this subsection (b) shall be made by the Company taking, or causing
the Issuer to take, the actions required for the full or partial prepayment of
the Bond as provided for in subsection (a) hereof.
(c) To exercise the option granted in subsection (a) or (b) of this
Section 10.1, the Company shall give written notice to the Issuer and the
Trustee which shall specify therein (i) the date of the intended prepayment of
the Bonds, which shall not be less than thirty (30) nor more than sixty (60)
days from the date the notice is mailed and (ii) the principal amount of the
Bonds to be prepaid. When given, such notice shall be irrevocable by the
Company unless the Company in such notice states that it is revocable and
requests that the notice of the Trustee to the Bondholders pursuant to Section
7.4 of the Indenture be conditioned on the deposit of Available Moneys (as
defined in the Indenture) with the Trustee no later than the redemption date of
the Bonds.
SECTION 10.2 MANDATORY PREPAYMENT. During the Variable Rate Period, in the
event any Credit Facility is not renewed and an Alternate Credit Facility has
not been provided in accordance with Section 6.3 of the Indenture, the Company
shall on or before the Interest Payment Date occurring closest to but not after
fifteen (15) days prior to the expiration date of the then current Credit
Facility, prepay the entire unpaid principal balance of the Bonds in full. The
Company shall promptly notify the Issuer, the Credit Facility Trustee and the
Trustee of the date selected for such payment.
30
SECTION 10.3 OTHER MANDATORY PREPAYMENTS. The amounts required to be
applied to the repayment of the Bonds by Section 6.7 hereof shall be applied by
the Company to prepay, together with accrued interest, all or a portion of the
unpaid principal of the Bonds. Such prepayment shall be made by the Company
taking, or causing the Issuer to take, the actions required (a) for Payment of
the Bonds, in the case of prepayment of the Bonds in whole, or (b) to effect the
prepayment of less than all of the Bonds in inverse order of their maturities.
SECTION 10.4 CONVEYANCE OF PROJECT. Upon either the exercise of the option
of the Company to prepay the outstanding Bonds in accordance with Section 10.1
hereof or the end of the Term of Lease Agreement, the Issuer shall convey all of
its right, title and interest in the Project to the Company for the amount of
$10.00. The Issuer shall cooperate with the Company to effectuate such
conveyance.
31
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 REFERENCES TO THE BONDS INEFFECTIVE AFTER BONDS PAID. Upon
Payment of the Bonds, all references in this Lease Agreement to the Bonds shall
be ineffective and the Issuer and any owner of the Bonds shall not thereafter
have any rights hereunder, except rights of the Issuer to indemnification and
payment of expenses contained, without limitation, in Sections 7.8, 7.9 and 7.10
hereof.
SECTION 11.2 NO IMPLIED WAIVER. In the event any agreement contained in
this Lease Agreement should be breached by either party and thereafter waived by
the other party, such waiver shall be limited to the particular breach so waived
and shall not be deemed to waive any other breach hereunder. Neither any failure
nor any delay on the part of the Trustee to exercise any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof, or the exercise of any other right, power or
privilege.
SECTION 11.3 ISSUER REPRESENTATIVE. Whenever under the provisions of this
Lease Agreement the approval of the Issuer is required or the Issuer is required
to take some action at the request of the Company, such approval may be made or
such action may be taken by the Issuer Representative or by the Issuer; and the
Company, the Trustee and the Bondholders shall be authorized to rely on any such
approval or action.
SECTION 11.4 COMPANY REPRESENTATIVE. Whenever under the provisions of this
Lease Agreement the approval of the Company is required or the Company is
required to take some action upon the request of the Issuer, such approval shall
be made or such action shall be taken by the Company Representative; and the
Issuer, the Trustee and the Bondholders shall be authorized to act on any such
approval or action.
SECTION 11.5 NOTICES.
(a) All notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when delivered by hand delivery,
sent via overnight courier service or mailed by first class, postage prepaid,
registered or certified mail, addressed as follows:
(1) if to the Issuer, to Development Authority of XxXxxxxx County,
c/o Xxxxxx X. Xxxxxx, Xx., Esquire, P.O. Box 1620, 000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000-0000.
32
(2) if to the Company, to Advance Stores Company Incorporated, X.X.
Xxx 0000, 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Chief
Financial Officer.
(3) if to the Trustee, to First Union National Bank, 000 Xxxx Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (Attention: Corporate Trust
Department);
(4) if to the Credit Facility Trustee, to Branch Banking and Trust
Company, 000 Xxxx Xxxx Xxxxxx, Xxxxxx, Xxxxx Xxxxxxxx 00000 (Attention:
Corporate Trust Department); and
(5) if to any successor Trustee, successor Credit Facility Trustee
or Co-Trustee, addressed to it at its principal corporate trust office
(Attention: Corporate Trust Department).
(b) The Issuer, the Company, the Credit Facility Trustee or the Trustee
may, by notice given hereunder, designate from time to time any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 11.6 IF PAYMENT OR PERFORMANCE DATE IS OTHER THAN A BUSINESS DAY.
If the specified or last date for the making of any payment, the performance of
any act or the exercising of any right, as provided in this Lease Agreement,
shall be a day other than a Business Day, such payment may be made or act
performed or right exercised on the next succeeding Business Day; provided that
interest shall accrue during any such period during which payment shall not
occur.
SECTION 11.7 BINDING EFFECT. This Lease Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Company and their
respective successors and assigns, subject to the provisions of Sections 8.1 and
8.3 hereof.
SECTION 11.8 SEVERABILITY. In the event any provision of this Lease
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof or thereof.
SECTION 11.9 AMENDMENTS, CHANGES AND MODIFICATIONS. Subsequent to the
issuance of the Bonds and prior to Payment of the Bonds, this Lease Agreement
and the Indenture may not be effectively amended, changed, modified, altered or
terminated except in accordance with the Indenture.
SECTION 11.10 EXECUTION IN COUNTERPARTS. This Lease Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall
33
constitute but one and the same instrument, and no one counterpart of which need
be executed by all parties.
SECTION 11.11 APPLICABLE LAW. This Lease Agreement shall be governed by
and construed in accordance with the laws of the State.
SECTION 11.12 NO CHARGE AGAINST XXXXXXXX COUNTY CREDIT. No provision
hereof shall be construed to impose a charge against the general credit or
taxing power of XxXxxxxx County or any personal or pecuniary liability upon any
member, official, employee or agent of the Issuer.
SECTION 11.13 ISSUER NOT LIABLE. Notwithstanding any other provision of
this Lease Agreement (a) the Issuer shall not be liable to the Company, the
Trustee, the Credit Facility Trustee, any Bondholder or any other Person for any
failure of the Issuer to take action under this Lease Agreement other than such
actions as have been agreed to herein and in the Indenture, and (b) neither the
Issuer nor any officer or member of the Issuer nor any other official, employee,
attorney or agent of the Issuer shall be liable to the Company, the Trustee, the
Credit Facility Trustee, any Bondholder or any other Person for any action taken
by the Issuer or by any of its officers, attorney, servants, agents or employees
or for any failure to take action under this Lease Agreement or the Indenture
other than such actions as have been agreed to herein and in the Indenture. In
acting under this Lease Agreement, or in refraining from acting under this Lease
Agreement, the Issuer may conclusively rely on the advice of its Counsel.
SECTION 11.14 EXPENSES. The Company agrees to pay all reasonable fees and
expenses incurred in connection with the preparation, execution, delivery,
modification, waiver, and amendment of this Lease Agreement, the other Bond
Documents and related documents, and the fees and expenses of Bond Counsel,
Counsel for the Issuer and Counsel for the Trustee. The Company also agrees to
pay to the Trustee and the Credit Facility Trustee, as and when the same become
due, an aggregate of $3,500 each year for services rendered and its expenses
incurred as Trustee and the Credit Facility Trustee, including the reasonable
fees of their respective counsel, and such other amounts as the Company herein
assumes or agrees to pay, including any costs or expenses necessary to cancel
and discharge the Indenture. The Company also agrees to pay all expenses
incurred by the Trustee or the Issuer in collection of any indebtedness incurred
hereunder in the event of default by the Company, including reasonable attorneys
fees, provided that the amount of any legal fees so incurred shall be without
regard to any statutory presumption.
SECTION 11.15 AMOUNTS REMAINING WITH THE TRUSTEE. Any amounts remaining in
the Bond Fund, the Project Fund or otherwise in trust with the Trustee under the
Indenture or this Lease Agreement shall, after Payment of the Bonds and all
Administrative
34
Expenses in accordance with this Lease Agreement, be disbursed by the Trustee in
accordance with the provisions of the Indenture or otherwise as may be required
by law.
SECTION 11.16 REFERENCES TO THE CREDIT FACILITY ISSUER, CREDIT FACILITY
AND CREDIT FACILITY TRUSTEE. If the Credit Facility is not in effect at any
time, all references herein to the Credit Facility Issuer, the Credit Facility
and the Credit Facility Trustee shall be deemed ineffective during such time.
SECTION 11.17 NET LEASE. This Lease Agreement shall be deemed a "net
lease", and the Company shall pay absolutely net during the Term of Lease
Agreement the rents specified herein, without abatement, deduction or set-off
other than those herein expressly provided.
SECTION 11.18 TERM OF LEASE AGREEMENT. This Lease agreement shall remain
in full force and effect form the date hereof to and including November 1, 2002
or until such time as Payment of the Bonds and all amounts payable to the Bank
under the Reimbursement Agreement shall have been fully paid or provision made
for such payments, whichever is later; provided, however, that this Lease
Agreement may be terminated prior to such date pursuant to Section 10.1 of this
Lease Agreement.
35
IN WITNESS WHEREOF, the Issuer and the Company have caused this Lease
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
(SEAL) DEVELOPMENT AUTHORITY OF
XXXXXXXX COUNTY
Attest: By: /s/
------------------------------
Title: Chairman
By: /s/
--------------------------
Title: Secretary
36
(SEAL) ADVANCE STORES COMPANY,
INCORPORATED
Attest: By: J. O'Xxxx Xxxxxxxx
-------------------------------------------
J. O'Xxxx Xxxxxxxx
Xx. Vice President/Chief Financial Officer
Assistant Secretary/Assistant Treasurer
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Title: President and Chief
Executive Officer
STATE OF Virginia
-----------------)
COUNTY OF Roanoke )
----------------)
I, the undersigned, a Notary Public in and for said county and said
state, hereby certify that J. O'Xxxx Xxxxxxxx, whose name as Vice
President/Chief Financial Officer of ADVANCE STORES COMPANY, INCORPORATED, a
Virginia corporation, is signed to the foregoing instrument and who is known to
me, acknowledged before me on this day that, being informed of the contents of
the within instrument, he, as such officer and with full authority, executed the
same voluntarily for and as the act of said corporation.
GIVEN under my hand and official seal of office, this 29th day of
----
December, 1997.
/s/ Xxxxx X. Xxxxx
______________________________
Notary Public
[NOTARIAL SEAL]
AMENDMENT NO. 1 TO LEASE AGREEMENT
THIS AMENDMENT NO. 1 TO LEASE AGREEMENT, dated April 1, 1998, is entered
into between DEVELOPMENT AUTHORITY OF XXXXXXXX COUNTY (the "Issuer"), and
ADVANCE STORES COMPANY, INCORPORATED (the "Company");
W I T N E S S E T H:
WHEREAS, the Issuer has issued its Taxable Industrial Development Revenue
Bonds (Advance Stores Company, Incorporated Project), Series 1997, in the
aggregate principal amount of $10,000,000 (the "Bonds"); and
WHEREAS, the Bonds were issued under and pursuant to an Indenture of Trust,
dated as of December 1, 1997 (the "Indenture"), by and among the Issuer, First
Union National Bank, as trustee (the "Trustee") and Branch Banking and Trust
Company, as credit facility trustee (the "Credit Facility Trustee"); and
WHEREAS, the proceeds derived from the issuance of the Bonds were made
available to the Company pursuant to a Lease Agreement, dated as of December 1,
1997 (the "Lease Agreement"), between the Issuer and the Company, for the
purpose of financing the acquisition, construction, installation and equipping
of an industrial facility (the "Project") located in XxXxxxxx County, Georgia;
and
WHEREAS, the Company has requested that the Issuer amend the Lease
Agreement to correct a minor ambiguity relating to the definition of "Project";
NOW, THEREFORE, in consideration of the premises, mutual covenants
hereinafter contained and other good and valuable consideration, the Company and
the Issuer do hereby amend the Lease Agreement as follows:
Section 1. Definition of "Project" in Section 1.1 of the Lease Agreement
-------------------------------------------------------------
Amended. The definition of the capitalized term "Project" in Section 1.1 of the
-------
Lease Agreement is hereby amended by deleting in its entirety said definition in
Section 1.1 of the Lease Agreement and inserting in lieu of the following:
" "Project" shall mean an industrial facility on approximately 49 acres
of land located in XxXxxxxx County, Georgia and all related real and
personal property thereto, as more fully set forth on Exhibit B hereto."
Section 2. Effect of Modification and Amendment of Lease Agreement.
-------------------------------------------------------
The Lease Agreement shall be deemed to be modified and amended in
accordance with the provisions of this Amendment No. 1 and the respective
rights, duties and obligations of the Company and the Issuer under the
Lease Agreement shall remain to be determined, exercised and enforced under
the
Agreement subject in all respects to such modifications and amendments
in writing, and all the terms and conditions of this Amendment No. 1 shall
be part of the terms and conditions of the Lease Agreement for any and all
purposes. All the other terms of the Lease Agreement shall continue in
full force and effect subject to the amendments set forth herein.
Section 3. Counterparts. This Amendment No. 1 may be executed in any
------------
number of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument.
2
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their
duly authorized officers, all as of the date first above written.
(SEAL) DEVELOPMENT AUTHORITY OF XXXXXXXX COUNTY
Attest: By: /s/
----------------------------------
Title:
By: /s/
--------------------------
Title:
(SEAL) ADVANCE STORES COMPANY, INCORPORATED
Attest: By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & CEO
By: /s/
--------------------------
Secretary
3
CONSENTED:
FIRST UNION NATIONAL BANK, as trustee
/s/
________________________________
Title:
BRANCH BANKING AND TRUST COMPANY, as credit facility trustee
/s/
________________________________
Title:
FIRST UNION NATIONAL BANK, as provider of the credit facility
/s/
________________________________
Title:
4
