STATE OF ALABAMA
COUNTY OF XXXXXXX
LEASE AGREEMENT WITH OPTION TO PURCHASE
---------------------------------------
This LEASE AGREEMENT between the INDUSTRIAL DEVELOPMENT BOARD OF THE
TOWN OF LOXLEY, ALABAMA, a public corporation organized and existing under the
laws of the State of Alabama, party of the first part (herein called the
"Board"), and ACE HARDWARE CORPORATION, party of the second part (herein called
the "LESSEE").
WITNESSETH
That in consideration of the respective representations and agreements
hereinafter contained, the Board and the Lessee agree as follows (provided that
in the performance of the agreements of the Board herein contained, any
obligation it may thereby incur for the payment of money shall not be a general
debt on its part but shall be payable solely by Lessee):
ARTICLE I
DEFINITIONS AND USE OF PHRASES
------------------------------
Section 1.1 Definitions. The following words and phrases and others
evidently intended as the equivalent thereof shall, in the absence of clear
implication herein otherwise, be given the following respective interpretations
in this Lease Agreement.
"Act" means the statutes codified as Code of Alabama 1975, Title II,
Sections 11-54-80, ct seq., as amended and supplemented and at the time in
force and effect.
"Authorized Board Representative" means the person or persons at the
time designated as such by written certificate furnished to the Lessee
containing the specimen signature or signatures of such person or persons and
signed on behalf of the Board by the Chairman or the Vice Chairman of its Board
of Directors.
"Authorized Lessee Representative" means the person or persons at the
time designated as such by written certificate furnished to the Board
containing the specimen signature or signatures of such person or persons and
signed on behalf of the Lessee.
"Board" means (i) the party of the first part hereto and its successors
and assigns, and (ii) any public corporation resulting from or surviving any
consolidation or merger to which it or its successor may be a party.
"Building" or "Buildings" means the building or buildings and all
related improvements to such building or buildings that are now or hereinafter
located on the Project Site, as such may at any time exist.
"Eminent Domain", when used herein with reference to any taking of
property, means the power (actual or claimed) of any governmental authority or
any person, firm or corporation acting under governmental authority (actual or
claimed) to take such property, and for purposes of this Lease Agreement, a
taking of property under the exercise of the power of Eminent Domain shall
include a conveyance made, or a use granted or taken, under either the threat
or the fact of the exercise of governmental authority.
"Event of Default" means an "Event of Default" as specified in Section
9.1. provisions of any applicable mortgage and that the lien of such mortgage
has been canceled, satisfied and discharged in accordance with the applicable
provisions thereof.
"Lease" or "this Lease Agreement" means this Lease Agreement as it now
exists and as it may from time to time be modified, supplemented or amended.
"Lease Term" means the duration of the leasehold estate granted in
Section 4.1 hereof.
"Net Condemnation Award" means the total amount received as
compensation for any part of the Project taken under the exercise of the power
of Eminent Domain plus damages to any part of the Project not taken.
"Permitted Encumbrances" means, as of any particular time, (i) liens
for ad valorem taxes and general and special assessments not then delinquent,
(ii) the Lease and the lien of any applicable mortgage, (iii) utility, access,
drainage and other easements and rights of way, mineral rights, restrictions
and exceptions none of the foregoing of which, individually or in the
aggregate, materially interfere with or impair the use of the Project for the
purpose for which it was acquired or is held by the Board, (iv) any inchoate
mechanic's, materialmen's, supplier's or vendor's lien or other right to a
purchase money security interest if payment is not yet due and payable under
the contract giving rise to such lien or right, (v) such other minor defects,
irregularities, encumbrances, easements, rights of way and clouds on title
(including zoning and other similar restrictions and regulations) as in the
written opinion of Independent Alabama Counsel delivered to the Board
customarily exist with respect to properties similar in character to the
Project and do not in the aggregate materially impair the title of the Board
to the Project or the use of the Project for the purpose for which it was
acquired or is held by the Board, and (vi) all exceptions contained in the
title policy issued to the Industrial Development Board of the Town of Loxley,
Alabama.
"Project" means the Project Site and the Building as they may at any
time exist, and all other property and right of every kind that are or become
subject to the demise of the Lease.
"Project Site" means the parcel of land specifically described on
Exhibit "A" hereto.
Section 1.2 Use of Phrases. "Herein", "hereby", "hereunder",
"hereof," "hereinbefore", "hereinafter" and other equivalent words refer to
this Lease Agreement as an entirety and not solely to the particular portion in
which any such word is used. The definitions set forth in Section 1.1 hereof
include both singular and plural. Whenever used herein, any pronoun shall be
deemed to include both singular and plural and to cover all genders.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 2.1 Representation by the Board. The Board makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The Board is duly incorporated under the provisions of the Act,
as now existing, by Certificate of Incorporation duly filed for record in the
Office of the Judge of Probate of Xxxxxxx County, Alabama, the said Certificate
of Incorporation has not been revoked and is in full force and effect; and the
Board is not in default under any of the provisions contained in said
Certificate of Incorporation or in its Bylaws or in the laws of the State of
Alabama.
(b) The Board has good and marketable fee simple title in and to
the Project Site, subject only to Permitted encumbrances.
(c) The Board was induced to enter this undertaking by the promise
of the Lessee to acquire, construct and install the Project in Xxxxxxx County,
Alabama. The Project constitutes a "project" within the meaning of the Act.
(d) The Board is not subject to any charter, by-law or contractual
limitation or provision of any nature whatsoever which in any way limits,
restricts or prevents the Board from entering into this Lease or performing any
of its obligation hereunder.
(e) The Project Site is located wholly within the now-existing
police jurisdiction of the Town.
Section 2.2 Representations and Warranties by the Lessee. The
Lessee makes the following representations and warranties:
(a) The Lessee has power to enter into, and to perform and observe
the agreements and covenants on its part contained in this Lease Agreement.
(b) Neither the execution and delivery of this Lease Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions hereof, conflicts or will conflict
with, or results or will result in a breach of, any of the terms, conditions or
provisions of any agreement, instrument or court or other governmental order to
which the Lessee is now a party or by which it is bound, or constitutes or will
constitute a default under any of the foregoing.
(c) The Project will constitute a "Project" within the meaning of
the Act, as now existing.
ARTICLE III
DEMISING CLAUSES
----------------
Section 3.1 Demising Clauses. For and during the Term hereof, the
Board hereby demises and leases to the Lessee, subject to Permitted
Encumbrances, and the Lessee hereby rents from the Board, subject to Permitted
Encumbrances, the following described properties and related rights:
I
The real property identified on Exhibit "A", which is attached hereto
and made a part hereof as though fully set out herein.
II
Also, any and all other buildings, structures and other improvements
constituting real property now or hereafter situated on the Project Site, all
permits, easements, licenses, rights of way, contracts, leases, privileges,
immunities and hereditaments pertaining or applicable to the Project Site and
all fixtures now or hereafter owned by the Board and installed on the Project
Site or in the Building or in any of such other buildings, structures and
improvements now or hereafter located on the Project Site, it being the
intention hereof that all property, rights and privileges hereafter acquired
for use as a part of or in connection with or as an improvement to the Project
Site shall be as fully covered hereby as if such property, rights and
privileges were now owned by the Board and were specifically described herein.
ARTICLE IV
DURATION OF TERM AND RENTAL PROVISIONS
--------------------------------------
Section 4.1 Duration of Term. The term of the Lease shall begin on
the date of delivery of this Lease Agreement, and subject to the provisions
hereof, shall continue until May 27, 2009.
Section 4.2 Rental Provisions. Lessee shall, simultaneously with
the execution of this Lease Agreement, pay unto the Board the sum of $1,000.00,
said sum to be regarded as prepaid rental, in full, for the term of this Lease
as set forth in Section 4.1 above. Said amount of prepaid rental shall
constitute all of the rental payments otherwise due from Lessee unto the Board
during the term of this Lease.
ARTICLE V
PROVISIONS CONCERNING MAINTENANCE, ADDITIONS,
REMOVAL OF PROJECT EQUIPMENT, INSURANCE AND TAXES
-------------------------------------------------
Section 5.1 Maintenance, Additions, Alterations, Improvements and
Modifications. The Lessee will, at its own expense, (i) keep the Project in
reasonably safe condition and (ii) keep all buildings and other facilities at
any time forming part of the Project in good repair and operating condition
(reasonable wear and tear excepted).
The Lessee may, at its own cost and expense, make, or cause to
be made, any additions, alterations, improvements or modifications to the
Project that it may deem desirable for its business purposes, provided that
such additions, alterations, improvements or modifications do not change the
character of the Project to such extent that it no longer constitutes a
"project" under the Act.
In the event the Lessee determines to make, or to cause to be made, any
additions, alterations, improvements or modifications to the Project pursuant
to the second paragraph of this Section 5.1, then the Board will, at the
request of Lessee, execute and deliver, or cause to be executed and delivered,
all contracts, orders, requisitions, instructions and other written instruments
and do, or cause to be done, all other acts that may be necessary or proper in
making such additions, alterations, improvements or modifications. In no event,
however, will the Board hereafter enter into any contract with respect to any
such additions, alterations, improvements or modification unless there is
endorsed thereon a legend indicating that the Lessee has approved both the form
and substance of such contract and such legend is signed on behalf of the
Lessee by an Authorized Lessee Representative. Any obligation for the payment
of money incurred or assumed by the Board in connection with such additions,
alterations, improvements or modifications shall be payable solely by the
Lessee, and any funds so advanced by the Board shall be deemed only an
accommodation for the benefit of Lessee.
The Lessee will not permit any mechanics' or other liens to stand
against the Project for labor, materials, equipment or supplies furnished in
connection with the original acquisition and construction of the Project or in
connection with any additions, alterations, improvements, modifications,
repairs or renewals that may subsequently be made thereto. The Lessee may,
however, at its own expense and in good faith, contest any such mechanics' or
other liens and in the event of any such contest may permit any such liens to
remain unsatisfied and undischarged during the period of such contest and any
appeal therefrom unless by such action the lien of the Indenture to any part of
the Project shall be materially endangered or impaired or any part of the
Project shall be subject to material loss or forfeiture, in either of which
events such mechanics' or other liens shall (unless they are bonded or
superseded) be promptly satisfied.
At any time and from time to time, the Lessee may, at its own cost and
expense, install in the Building or elsewhere on the Project Site any equipment
or other personal property which does not constitute part of the Project and
which in the Lessee's judgment is necessary or convenient for its use and
occupancy of the Project. Any such equipment or personal property owned (or
leased pursuant to any lease contract other than the Lease) by the Lessee may
be removed by the Lessee at any time and from time to time without
responsibility or accountability to the Board.
Section 5.2 Taxes, Other Governmental Charges and Utility Charges.
The Lessee agrees to pay, as the same becomes due, the following:
(i) all taxes and governmental charges of any kind including all
penalties, interests and statutory assessments whatsoever that may
lawfully be assessed or levied against or with respect to the Project;
and
(ii)all assessments and charges lawfully made by any governmental body
for public improvements that may be secured by a lien on the Project;
provided that with respect to special assessments or other governmental
charges that may lawfully be paid in installments over a period of
years, the Lessee shall be obligated to pay only such installments as
are required to be paid during any period which the Lease shall be in
effect.
The Board will promptly forward to the Lessee any bills, statements,
assessments, notices or other instruments asserting or otherwise relating to
any such taxes, assessments or charges.
The Lessee may, at its own expense and in its own name and behalf or in
the name and behalf of the Board, in good faith contest any such taxes,
assessments and utility and other charges and, in the event of such contest,
may permit the taxes, assessments or other charges so contested to remain
unpaid during the period of such contest and appeal therefrom unless by such
action the title of the Board to any portion of the Project shall be materially
endangered or impaired or the Project or any part thereof shall become subject
to material loss or forfeiture, in which event such taxes, assessments, or
charges shall be paid prior to their becoming delinquent. The Board will
cooperate fully with the Lessee in any such contest.
The Lessee will also pay, as the same respectively becomes due, all
utility and other similar charges incurred in the operation, maintenance, use
and upkeep of the Project.
Section 5.3 Insurance with Respect to the Project. The Lessee will,
no later than the date of delivery of this Lease, take out and thereafter
continuously maintain in effect or cause to be taken out and thereafter
continuously maintained in effect, insurance with respect to the Project
against such risks as are customarily insured against by business of like size
and type as the Lessee, as may be determined by the Lessee, paying as the same
become due all premiums with respect thereto. All policies evidencing the
insurance required by the terms of the preceding paragraph shall be taken out
and maintained with responsible insurance companies licensed to conduct the
business of insurance in the State of Alabama. All such insurance policies
shall name the Board as an additional insured thereunder where permitted.
Insurance against liability for injury to persons or property provided
by Lessee pursuant to this Section shall cover the liability, in the several
aspects of the coverage provided, of both of the Board and the Lessee, with the
Board named as an additional insured. Such policy shall provide that it will
not be canceled or amended without at least thirty (30) days notice to Lessee
and the Board. The Lessee shall provide, not later than thirty (30) days prior
to any policy expiration, evidence of renewal or placement coverage, and such
evidence shall be furnished to the Board, in writing.
Section 5.4 Effect of Mortgages. The provisions and requirements of
this Article shall be in addition to the provisions and requirements of any
mortgage covering the property described on Exhibit "A", and not in
substitution therefore. So long as any such mortgage shall remain in force and
effect, the requirements of those mortgages shall govern the obligations of the
parties with respect to the Project to the extent the same are inconsistent
with the provisions of this Article. All rights conferred upon the Board
pursuant to this Lease shall be secondary and subordinate to the rights granted
to any mortgagee of Lessee, provided, however, no mortgage or security
agreement will impose any liability or responsibility of any kind or nature
upon the Board, the Town, or any of its various officers, members, directors,
employees or agents.
ARTICLE VI
PROVISIONS RESPECTING DAMAGE,
DESTRUCTION AND CONDEMNATION
-----------------------------
Section 6.1 Damage and Destruction Provisions. It shall be the
responsibility of Lessee to fully insure the demised premises, and all
improvements situated thereon, in an amount not less than the full replacement
value thereof. In the event any portion of the demised premises is damaged, in
whole or in part, such risk of loss shall rest on Lessee, and the Board assumes
no responsibility for any such damage which may occur. Any insurance proceeds
payable with respect to such damage shall be paid unto Lessee.
If the Building is destroyed, in whole or in part, or is damaged,
neither the Lessee nor the Board shall be obligated to repair, replace or
restore the property damaged or destroyed, and any Net Insurance Proceeds
referable to such damage or destruction shall be paid to the Lessee; provided,
however, that the Board will, to the extent and in the manner provided herein,
cooperate fully with the Lessee in carrying out such repair, replacement and
restoration as the Lessee may, in its sole discretion, decide to undertake.
All property acquired in connection with the repair, replacement or
restoration of any part of the Project pursuant to the provisions of this
Section shall be and become part of the Project subject to the demise hereof
and the lien of any Mortgage applicable to the demised premises and shall be
held by the Lessee on the same terms and conditions as the property originally
constituting the Project.
Section 6.2 Condemnation Provision. In the event of any
condemnation of the demised premises during the term of this Lease or any
extension or renewal hereof, any such condemnation award payable as a result
thereof shall be paid in accordance with any Mortgage covering the demised
premises. In the event no such Mortgage exists, or in the event such Mortgage
has been fully satisfied, all such condemnation proceeds shall be payable unto
Lessee.
Section 6.3 Cooperation of the Board in the Conduct of Condemnation
Proceedings. The Board will cooperate fully with the Lessee in the handling and
conduct of any prospective or pending condemnation proceeding with respect to
the Project or any part thereof and will follow all reasonable directions given
to it by the Lessee in connection with such proceeding. In no event will the
Board settle, or consent to the settlement of, any prospective or pending
condemnation proceeding with respect to the Project or any part thereof without
the prior written consent of the Lessee. Any expenses incurred by the Board in
assisting Lessee with condemnation proceedings, including the Board's
reasonable attorney's fees, shall be paid by Lessee.
ARTICLE VII
PARTICULAR CONVENANTS OF THE LESSEE
-----------------------------------
Section 7.1 General Covenants. The Lessee will, in the use of the
Project and the public ways abutting the Project Site, comply in all material
respects with all valid and applicable laws, ordinances, regulations or orders
of all governmental authorities or agencies, provided, however, that the Lessee
may in good faith contest the validity of any such laws, ordinances,
regulations or orders or the application thereto to the Project and in the
event of any such contest defer compliance therewith during the period of such
contest and any appeal from any appealable decision in such contest, unless by
such action the rights or interest of the Board with respect to the Project or
any part thereof shall be materially endangered or impaired. The Lessee shall
give prompt notice of any such contest to the Board. Except for warranties of
title and quiet enjoyment, and except for the breach of any term or covenant of
this Lease by the Board, Lessee does hereby release and hold the Board and its
agents, servants, employees and directors harmless from and against any
liability which Lessee may incur in and about the operation of the Project.
Section 7.2 Release and Indemnification Covenants. The Lessee
releases the Board (and each director, officer, employee, attorney, consultant
and agent thereof) from, and will indemnify and hold the Board (and each
director, officer, employee, attorney, consultant and agent thereof), harmless
against any and all claims and liabilities of any character or nature
whatsoever regardless of by whom asserted or imposed, and losses of every
conceivable kind, character and nature whatsoever claimed by or on behalf of
any person, firm, corporation or governmental authority, arising out of, result
from, or in any way connected with the Project, including, without limiting the
generality of the foregoing, (i) liability for loss or damage to property or
any injury to or death of any and all persons that may be occasioned by any
cause whatsoever pertaining to the Project or arising by reason of or in
connection with the occupation or use thereof or the presence on, in or about
the premises of the Project; (ii) liability for loss or damage to property or
any injury to or death of any and all persons that may be occasioned by the
violation of any clean air, clean water or other environmental law or
regulation including, without limitation, any provision of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA" or
the "Federal Superfund Act") as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), 42 U.S.C. Sections 9601-9605, or
hazardous waste as defined, regulated and/or prohibited by the Resource
Conservation and Recovery Act ("RCRA"), the Clean Water Act, 33 U.S.C. Section
1321 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Toxic
Substances Control Act ("TSCA"), 42 U.S.C. Section 2601 et seq., all as the
same may be from time to time amended and any other federal, state, county,
municipal, local or other statute, law ordinance or regulation which may relate
to or deal with human health or the environment including without limitation
all regulations promulgated by a regulatory body pursuant to any such statute,
law or ordinance.
Section 7.3 Inspection of Project. The Lessee will permit the Board
and its duly authorized agents at all reasonable times to examine and inspect
the Project or any part thereof.
Section 7.4 Agreement to Maintain Corporate Existence. The Lessee
will maintain its corporate existence, will not dissolve or otherwise dispose
of all or substantially all of its assets (either in a single transaction or in
a series of related transactions) and will not consolidate with or merge into
another corporation, partnership, limited liability partnership or limited
liability company, or permit one or more legal entities to consolidate with or
merge into it; provided that the Lessee may, without violating the agreements
contained in this section, do or perform any of the following:
(a) it may consolidate with or merge into another United States
corporation, partnership, limited liability partnership or limited
liability company, or permit one or more such United States legal
entities to consolidate with or merge into it, if such legal entity
surviving such merger or resulting from such consolidation, shall be
one other than the Lessee, and shall expressly assume in writing all
the obligations of the Lessee contained in this Lease Agreement and
other Financing Documents;
(b) it may transfer to another United States corporation, partnership,
limited liability partnership or limited liability company, all or
substantially all of its assets as an entirety, and (if it so elects)
thereafter dissolve, if the such legal entity to which such transfers
shall be made expressly assumes in writing all the obligations of the
Lessee contained in this Lease Agreement and the other Financing
Documents.
The Lessee will, promptly following any merger, consolidation or
transfer permitted under the provisions of this Lease, furnish to the Board
fully executed or appropriately certified copies of the writing by which the
Lessee's successor or transferring legal entity expressly assumes the
obligations of the Lessee contained herein,
If, after a transfer by the Lessee of all or substantially all of its
assets to another United States legal entity under the circumstances, described
in the preceding clause (b) of this section, the Lessee does not thereafter
dissolve, it shall not have any further rights or obligations hereunder.
Section 7.5 Qualification in Alabama. The Lessee warrants and
represents that it is now duly qualified as a corporation to do business in
Alabama and covenants that it, or any successor legal entity permitted under
the preceding section hereof will remain qualified to do business in Alabama
during the term of this Lease Agreement.
Section 7.6 Covenant to Operate. The Lessee covenants to
continuously operate the Project as a "Project" within the meaning of the Act;
provided, however, Lessee may interrupt to discontinue operations in the
Project for a period of up to twelve (12) months for the purpose of effecting a
transition to another permitted use of the Project under the Act.
ARTICLE VIII
CERTAIN PROVISIONS RELATING TO
ASSIGNMENT AND SUBLEASING
-------------------------
Section 8.1 Provisions Relating to Conveyance, Assignment and
Subleasing. The Board may not convey the Project or any portion thereof or
assign the Lease or any rights hereunder to any third party during the Lease
Term without the prior written consent of Lessee, which consent shall not be
unreasonably withheld; provided, however, that no such conveyance or assignment
shall prejudice Lessee's rights hereunder, including but not limited to, the
right to acquire unencumbered title to the Project at the end of the Lease Term
in accordance with the terms and conditions of this Lease. The Lessee may
assign this Lease and the leasehold interest created hereby, or sublease the
Project or any portion thereof upon giving at least thirty (30) days prior
written notice to the Board; provided, however, that no such assignment or
sublease will disqualify the Project under the provisions of the Tax Incentive
Reform Act of 1992 or relieve the Lessee of any liability hereunder.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1 Events of Default Defined. The following shall be
"Events of Default" under the Lease, and the term "Event of Default" shall
mean, whenever it is used in the Lease, any one or more of the following
conditions or events:
(a) failure by the Lessee to make any payment required under the terms
hereof on the date that such installment of such payment shall become
due and payable by the terms of this Lease;
(b) failure by the Lessee to perform or observe any agreement or
covenant on its part contained in this Lease which failure shall have
continued for a period of ninety (90) days after written notice,
specifying, in reasonable detail, the nature of such failure and
requiring the Lessee to perform or observe the agreement or covenant
with respect to which it is delinquent.
(c) there shall occur and shall be continuing any event of default, as
therein defined, under any Mortgage made by Lessee during the term of
this Lease.
Section 9.2 Remedies on Default. Whenever any Event of Default
shall have happened and be continuing, the Board shall have, in addition to
those rights otherwise provided by law, and when not in conflict with any
rights given to a Mortgagee under any Mortgage covering the property described
on Exhibit "A", the right to take whatever legal proceedings may appear
necessary or desirable to enforce any obligation, covenant or agreement of the
Lessee under this Lease or any obligation of the Lessee imposed by any
applicable law.
Section 9.3 No Remedy Exclusive. No right, power or remedy herein
conferred upon or reserved to the Board is intended to be exclusive of any
other available right, power or remedy, but each and every such right, power or
remedy shall be cumulative and shall be in addition to every other right, power
or remedy given under the Lease as now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right, power or
remedy accruing upon any Event of Default shall impair any such right, power or
remedy or shall be construed to be a waiver thereof but any such right, power
or remedy may be exercised from time to time and as often as may be deemed
expedient.
Section 9.4 Agreement to Pay Attorney's Fees. In the event that, as
a result of any Event of Default or a threatened Event of Default by the
Lessee, the Board should employ attorneys at law or incur other expenses in the
enforcement of any other obligation, covenant, agreement, term or condition of
this Lease, the Lessee will pay unto the Board reasonable attorney's fees and
other reasonable expenses so incurred.
ARTICLE X
OPTIONS
-------
Section 10.1 Option to Purchase. Provided that Lessee is not in
default under any provision of this Lease, the Lessee shall have the right and
option, hereby granted by the Board, at any time after May 27, 2009, to
purchase the Project from the Board at and for a purchase price equal to the
sum of One Hundred Dollars ($100.00). To exercise any such purchase option, the
Lessee shall notify the Board in writing no less than sixty (60) days prior to
the expiration of the term of its intent to exercise its option to purchase,
and, on the date of such purchase, shall pay the aforesaid purchase price to
the Board in cash or bankable funds, whereupon the Board will, by statutory or
special warranty deed transfer or convey to Lessee unencumbered title to all
real property described in Exhibit "A". In the event the Board takes title to
any personal property pursuant to the terms of the Lease, the Board will
execute any documents necessary to transfer title to such personal property to
Lessee.
Section 10.2 Notification of Term Expiration. If Lessee has not
notified the Board in writing no less than sixty (60) days prior to the
termination of the term of the Lease of its intention to exercise its option
to purchase, the Board shall give written notice to Lessee of the expiration
of the term of the Lease and Lessee shall have an additional thirty (30) days
from the date of such notice to exercise said option to purchase.
Section 10.3 Non-Qualification of Project. If the Project property
should cease to qualify as a "Project" within the meaning of the Act, as now
existing, at any time during the term of the Lease, Lessee shall exercise its
option to purchase as herein provided.
ARTICLE XI
MISCELLANEOUS
-------------
Section 11.1 Covenant of Quiet Enjoyment. Surrender. So long as the
Lessee performs and observes all the covenants and agreements on its part
contained in the Lease, it shall peaceably and quietly have, hold and enjoy the
Project during the Term subject to all the terms and provisions hereof.
Section 11.2 Notice. All notices, demands, requests and other
communications hereunder shall be deemed sufficient and properly delivered and
received (i) the same day when personally delivered; or (ii) one (1) day after
deposit with Federal Express or other commercial overnight courier; or (iii)
the same day when sent by confirmed facsimile, or (iv) three (3) business days
after deposit in the United States Mail, by certified mail, return receipt
requested, postage prepaid, to the following addresses:
I. If to the Board:
The Industrial Development Board of the Town of Loxley, Xxxxxxx
Xxxx Xxxxxx Xxx 0
Xxxxxx, Xxxxxxx 00000
Copy to: Xxxx X. Xxxxxxx, Esquire
Stone, Xxxxxxx & Xxxxxx, P.C.
X.X. Xxxxxx 0000
Xxx Xxxxxxx, Xxxxxxx 00000
I. If to the Lessee:
Ace Hardware Corporation
ATTN: President
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000-0000
Copy to: Xxxx X. Xxx Xxxx, Esq.
Ace Hardware Corporation
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
Any of the above mentioned parties may, by like notice, designate any
further or different addresses to which subsequent notices shall be sent. Any
notice hereunder signed on behalf of the notifying party by a duly authorized
attorney at law shall be valid and effective to the same extent as if signed
on behalf of such party by a duly authorized officer or employee.
Whenever, under the provisions hereof, any request, consent or approval
of the Board or the Lessee is required or authorized, such request, consent or
approval shall (unless otherwise expressly provided herein) be signed on behalf
of the Board by an Authorized Board Representative and, on behalf of the Lessee
by an Authorized Lessee Representative; and each of the parties are authorized
to act and rely upon any such requests, consents or approvals so signed.
Section 11.3 Limited Liability of Board. The Board is entering into
this Lease Agreement pursuant to the authority conferred upon it by the Act. No
provision hereof shall be construed to impose a charge against the general
credit of the Board, its agents, servants or employees, or any personal or
pecuniary liability upon the Board, its agents, servants or employees. Further,
none of the directors, officers, employees or agents of the Board shall have
any personal or pecuniary liability whatsoever hereunder or any liability for
the breach by the Board of any agreement on its part herein contained. Nothing
contained in this section, however, shall relieve the Board from the observance
and performance of the several covenants and agreements on its part herein
contained or relieve any director, officer, employee or agent of the Board from
performing all duties of their respective offices that may be necessary to
enable the Board to perform the covenants and agreements on its part herein
contained.
Section 11.4 Binding Effect. The Lease shall inure to the benefit
of, and shall be binding upon, the Board, the Lessee and their respective
successors and assigns.
Section 11.5 Severability. In the event any provision of the Lease
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
Section 11.6 Governing Law. The Lease shall in all respects by
governed by and construed in accordance with the laws of the State of Alabama.
Section 11.7 Article and Section Captions. The article and section
headings and captions contained herein are included for convenience only and
shall not be considered a part hereof or affect in any manner the construction
or interpretation hereof.
Section 11.8 Recording and Filing. On the date of delivery of this
Lease, this Lease (or a memorandum thereof) shall be recorded by the Board at
the expense of the Lessee, in the Office of the Judge of Probate of Xxxxxxx
County, Alabama, or in such other office as may at the time be provided by law
as a proper place for recordation or filing thereof.
IN WITNESS WHEREOF, the Board and the Lessee have caused this Lease
Agreement to be executed in their respective names and their respective seals
to be hereunto affixed, and have caused this Lease Agreement to be attested on
this the 27th day of May, 1999.
LESSOR:
INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF LOXLEY, ALABAMA
BY: ___________________________________
As Its_____________________________
LESSEE:
ACE HARDWARE CORPORATION
BY: ___________________________________
As Its_____________________________
STATE OF ALABAMA
COUNTY OF XXXXXXX
I, _________________________________, a Notary Public, in and for
said County in said State, hereby certify that _________________________ whose
name as ________________________ of the INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF LOXLEY, ALABAMA, 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 instrument, __he in _______ capacity as such _________________
and with full authority, executed the same voluntarily on the day the same
bears date.
Given under my hand and seal this _______ day of ____________, 1999.
____________________________________
Notary Public
My Commission Expires ________________
STATE OF ILLINOIS
COUNTY OF DU PAGE
I, Xxxx X. Xxx Xxxx, a Notary Public, in and for said
County in said State, hereby certify that Xxxxx X. Xxxx, whose name as
Vice President of ACE HARDWARE 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 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 seal this _______ day of ____________, 1999.
____________________________________
Notary Public
My Commission Expires ________________
EXHIBIT A TO LEASE AGREEMENT BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE TOWN OF LOXLEY, ALABAMA AND
ACE HARDWARE CORPORATION
Begin at the Northwest corner of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxxxxx Xxxxxx, Xxxxxxx; thence run North 89 50' 21" East, 1541.01 feet to a
point lying on the West right-of-way of Alabama Highway 59 (right-of-way
varies); thence run along said West right-of-way South 08 38' 28" East,
1009.58 feet to a point; thence run South 06 41' 49" East, 1343.46 feet to a
point; thence run South 08 10' 54" East 257.45 feet to a point lying at the
intersection of the West right-of-way of Alabama Highway 59 and the North
right-of-way of an existing unpaved county road (40.00 foot right-of-way);
thence run along said North right-of-way 89 53' 06" West, 1936.33 feet to a
point; thence leaving said North right-of-way run North 01 07' 04" East,
2579.53 feet to the point of beginning.
Said described property lying and being situated in the Northwest Quarter of
Section 34, Township 4 South, Range 3 East, Xxxxxxx County, Alabama and
contains 103.558 acres more or less.
SUBJECT, HOWEVER, TO THE FOLLOWING:
1. Any future adjustments made by either the Tax Assessor's Office or the
Board of Equalization.
2. Any limited access to Highway 59 located along the Eastern property
line pursuant to instruments recorded in Deed Book 345, Page 488 and Real
Property Book 769, Page 1407.
3. That certain easement granted to BellSouth Telecommunications, Inc. a
Georgia corporation, dated the 25th day of May,1999, and of record in the
Probate Court of Xxxxxxx, County, Alabama.
4. Terms, conditions, provisions and restrictions of all permits and
licenses of Federal, State and local government, including applicable
agencies and departments and private and quasi governmental agencies, including
but not limited to the Corps of Engineers, having jurisdiction over the real
property, including but not limited to restrictions on construction of any
areas delineated by governmental agencies as wetlands and to areas shown as
wetland areas on survey dated January 20, 1999, as revised, by Xxx Xxxxx
(AL Reg. No. 17267).
5. Thirty-six inch CMP located along the North property line of the
above-referenced property as shown on survey dated January 20, 1999, as
revised, by Xxx Xxxxx (AL Reg. No. 17267).
6. Existing underground telephone line located in the Southeast corner and
along the South line of property described above as shown on survey dated
January 20, 1999, as revised, by Xxx Xxxxx (AL Reg. No. 17267).
7. Existing water line located in the Southeast corner of property
described herein as shown on survey dated January 20, 1999, as revised, by Xxx
Xxxxx (AL Reg. No. 17267).
8. Existing telephone pedestal located in the Southeast corner and along
the South line of the property described herein as shown on survey dated
January 20, 1999, as revised, by Xxx Xxxxx (AL Reg. No. 17267).
9. Existing power line and power poles as located along the South line of
the property described herein as shown on survey dated January 20, 1999, as
revised, by Xxx Xxxxx (AL Reg. No. 17267).
10. Existing light poles as located along the South line of the property
described herein as shown on survey dated January 20, 1999, as revised, by Xxx
Xxxxx (AL Reg. No. 17267).
11. Existing fire hydrant as located in the Southeast corner of the
property described herein as shown on survey dated January 20, 1999, as
revised, by Xxx Xxxxx (AL Reg. No. 17267).
12. Existing dirt road, and rights of other parties thereto, as located
along the Southwest corner of the property described herein as shown on survey
dated January 20, 1999, as revised, by Xxx Xxxxx (AL Reg. No. 17267).
13. Any potential current use rollback taxes, reappraisal, assessed value
adjustment, and/or escape taxes which may become due by virtue of any future
action of the Office of the Tax Collector and/or the Board of Equalization of
Xxxxxxx County.
14. 1999 ad valorem property taxes which are a lien upon the subject
property, but are not due and payable until October 1, 1999, and subsequent
years.
15. Terms and conditions, rights and easements granted the State of
Alabama, in Case CV-97-000504 and recorded in Real Property Book 822, page 1610
and at Instrument #481142.
All recording references are to the records in the Office of the Judge of
Probate, Xxxxxxx County, Alabama.
