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EXHIBIT 10.22
After recordation,
this instrument
should be returned to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
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MASTER LEASE AGREEMENT
Dated as of May 30, 2000
between
ATLANTIC FINANCIAL GROUP, LTD., as Lessor,
and
DISCOUNT AUTO PARTS DISTRIBUTION CENTER, INC. AND CERTAIN OTHER
SUBSIDIARIES OF DISCOUNT AUTO PARTS, INC., as Lessees
-------------------------------------------
================================================================================
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TABLE OF CONTENTS
(Lease Agreement)
Page
ARTICLE I. DEFINITIONS................................................... 1
ARTICLE II. LEASE OF LEASED PROPERTY...................................... 1
2.1 Acceptance and Lease of Property.............................. 1
2.2 Acceptance Procedure.......................................... 2
ARTICLE III. RENT.......................................................... 2
3.1 Basic Rent.................................................... 2
3.2 Supplemental Rent............................................. 2
3.3 Method of Payment............................................. 3
3.4 Late Payment.................................................. 3
3.5 Net Lease; No Setoff, Etc..................................... 3
3.6 Certain Taxes................................................. 4
3.7 Utility Charges............................................... 5
ARTICLE IV. WAIVERS....................................................... 5
ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES......................... 6
ARTICLE VI. MAINTENANCE AND REPAIR;ALTERATIONS, MODIFICATIONS
AND ADDITIONS................................................. 7
6.1 Maintenance and Repair; Compliance With Law................... 7
6.2 Alterations................................................... 8
6.3 Title to Alterations.......................................... 8
ARTICLE VII. USE........................................................... 8
ARTICLE VIII. INSURANCE..................................................... 9
ARTICLE IX. ASSIGNMENT AND SUBLEASING.................................... 10
ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE.................... 11
10.1 Event of Loss................................................ 11
10.2 Event of Taking.............................................. 11
10.3 Casualty..................................................... 12
10.4 Condemnation................................................. 12
10.5 Verification of Restoration and Rebuilding................... 12
10.6 Application of Payments...................................... 13
10.7 Prosecution of Awards........................................ 13
10.8 Application of Certain Payments Not Relating to an Event
of Taking.................................................... 14
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10.9 Other Dispositions........................................... 14
10.10 No Rent Abatement............................................ 14
ARTICLE XI. INTEREST CONVEYED TO LESSEES................................. 15
ARTICLE XII. EVENTS OF DEFAULT............................................ 15
ARTICLE XIII. ENFORCEMENT.................................................. 18
13.1 Remedies..................................................... 18
13.2 Remedies Cumulative; No Waiver; Consents..................... 21
13.3 Purchase Upon an Event of Default............................ 21
ARTICLE XIV. SALE, RETURN OR PURCHASE OF LEASED PROPERTY;
RENEWAL ..................................................... 21
14.1 Lessee's Option to Purchase.................................. 21
14.2 Conveyance to Lessee......................................... 22
14.3 Acceleration of Purchase Obligation.......................... 22
14.4 Determination of Purchase Price.............................. 23
14.5 Purchase Procedure........................................... 23
14.6 Option to Remarket........................................... 24
14.7 Rejection of Sale............................................ 26
14.8 Return of Leased Property.................................... 26
14.9 Renewal...................................................... 27
14.10 Environmental Report......................................... 27
ARTICLE XV. LESSEE'S EQUIPMENT........................................... 28
ARTICLE XVI. RIGHT TO PERFORM FOR LESSEE.................................. 28
ARTICLE XVII. MISCELLANEOUS................................................ 29
17.1 Reports...................................................... 29
17.2 Binding Effect; Successors and Assigns; Survival............. 29
17.3 Quiet Enjoyment.............................................. 29
17.4 Notices...................................................... 29
17.5 Severability................................................. 30
17.6 Amendment; Complete Agreements............................... 30
17.7 Construction................................................. 31
17.8 Headings..................................................... 31
17.9 Counterparts................................................. 31
17.10 GOVERNING LAW................................................ 31
17.11 Discharge of Lessee's Obligations by its Subsidiaries
or Affiliates................................................ 31
17.12 Liability of Lessor Limited.................................. 31
17.13 Estoppel Certificates........................................ 32
(ii)
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17.14 No Joint Venture............................................. 32
17.15 No Accord and Satisfaction................................... 32
17.16 No Merger.................................................... 33
17.17 Survival..................................................... 33
17.18 Chattel Paper................................................ 33
17.19 Time of Essence.............................................. 33
17.20 Recordation of Lease......................................... 33
17.21 Investment of Security Funds................................. 33
17.22 Ground Leases................................................ 34
17.23 Land and Building............................................ 34
17.24 Joint and Several............................................ 34
17.25 Construction Land Interests.................................. 34
17.26 IDB Documentation............................................ 35
APPENDICES AND EXHIBITS
APPENDIX A Defined Terms
EXHIBIT A Lease Supplement
(iii)
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THIS MASTER LEASE AGREEMENT (as from time to time amended or
supplemented, this "Lease"), dated as of May 30, 2000, is among ATLANTIC
FINANCIAL GROUP, LTD., a Texas limited partnership (together with its successors
and assigns hereunder, the "Lessor"), as Lessor, and DISCOUNT AUTO PARTS
DISTRIBUTION CENTER, INC., a Mississippi corporation, and certain other
Subsidiaries of Discount Auto Parts, Inc. hereafter parties hereto
(individually, with its successors and permitted assigns hereunder, each a
"Lessee" and collectively, the "Lessees"), as Lessees.
PRELIMINARY STATEMENT
A. Lessor will purchase, or acquire a leasehold interest in, from one
or more third parties designated by the Construction Agent, on a Closing Date,
certain parcels of real property to be specified by the Construction Agent,
together with any improvements thereon.
X. Xxxxxx desires to lease to each Lessee, and each Lessee desires to
lease from Lessor, certain of such properties as described on the Lease
Supplement(s) to which such Lessee is a party.
C. If applicable, the Construction Agent will, on behalf of Lessor,
cause to be constructed, certain improvements on such parcels of real property
which as constructed will be the property of Lessor and will become part of such
property subject to the terms of this Lease.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, Lessor
and Lessees hereby agree as follows:
ARTICLE I.
DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A hereto for all purposes hereof.
ARTICLE II.
LEASE OF LEASED PROPERTY
Section 2.1 Acceptance and Lease of Property. On each Closing Date for
Land, Lessor, subject to the satisfaction or waiver of the conditions set forth
in Section 3 of the Master Agreement, hereby agrees to accept delivery on such
Closing Date of such Land pursuant to the terms of the Master Agreement,
together with any Building or Buildings and other improvements thereon, and
simultaneously to lease to the related Lessee hereunder for the Lease Term,
Lessor's
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interest in such Land and in such Building or Buildings and other improvements,
together with any Building which thereafter may be constructed thereon pursuant
to the Construction Agency Agreement, and such related Lessee hereby agrees,
expressly for the direct benefit of Lessor, commencing on such Closing Date for
the Lease Term, to lease from Lessor Lessor's interest in such Land to be
delivered on such Closing Date, together with, in the case of Land, Lessor's
interest in the Building or Buildings and other improvements thereon and/or
which thereafter may be constructed thereon pursuant to the Construction Agency
Agreement.
Section 2.2 Acceptance Procedure. Lessor hereby authorizes one or more
employees of the related Lessee, to be designated by such Lessee, as the
authorized representative or representatives of Lessor to accept delivery on
behalf of Lessor of that Leased Property identified on the applicable Funding
Request. Each Lessee hereby agrees that such acceptance of delivery by such
authorized representative or representatives and the execution and delivery by
such Lessee on each Closing Date for property to be leased hereunder of a Lease
Supplement in substantially the form of Exhibit A hereto (appropriately
completed) shall, without further act, constitute the irrevocable acceptance by
such Lessee of that Leased Property which is the subject thereof for all
purposes of this Lease and the other Operative Documents on the terms set forth
therein and herein, and that such Leased Property, together with, in the case of
Land, any and all Buildings and other improvements thereon and/or to be
constructed thereon pursuant to the Construction Agency Agreement, shall be
deemed to be included in the leasehold estate of this Lease and shall be subject
to the terms and conditions of this Lease as of such Closing Date. The demise
and lease of each parcel of Land and each Building pursuant to this Section 2.2
shall include any additional right, title or interest in each such parcel of
Land and each such Building which may at any time be acquired by Lessor, the
intent being that all right, title and interest of Lessor in and to each such
parcel of Land and each such Building shall at all times be demised and leased
to the related Lessee hereunder.
ARTICLE III.
RENT
Section 3.1 Basic Rent. Beginning with and including the first Payment
Date occurring after the Initial Closing Date, each Lessee shall pay to the
Agent the Basic Rent for the Leased Properties subject to a Lease Supplement to
which such Lessee is a party, in installments, payable in arrears on each
Payment Date during the Lease Term, subject to Section 2.3(c) of the Master
Agreement.
Section 3.2 Supplemental Rent. Each Lessee shall pay to the Agent, or
to whomever shall be entitled thereto as expressly provided herein or in any
other Operative Document, any and all Supplemental Rent on the date the same
shall become due and payable and in the event of any failure on the part of such
Lessee to pay any Supplemental Rent, the Agent shall have all rights, powers and
remedies provided for herein or by law or in equity or otherwise in the case of
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nonpayment of Basic Rent. All Supplemental Rent to be paid pursuant to this
Section 3.2 shall be payable in the type of funds and in the manner set forth in
Section 3.3.
Section 3.3 Method of Payment. Basic Rent shall be paid to the Agent,
and Supplemental Rent (including amounts due under Article XIV hereof) shall be
paid to the Agent (or to such Person as may be entitled thereto) or, in each
case, to such Person as the Agent (or such other Person) shall specify in
writing to the related Lessee, and at such place as the Agent (or such other
Person) shall specify in writing to the related Lessee. Each payment of Rent
(including payments under Article XIV hereof) shall be made by the Lessees prior
to 12:00 p.m. (noon) Atlanta, Georgia time at the place of payment in funds
consisting of lawful currency of the United States of America which shall be
immediately available on the scheduled date when such payment shall be due,
unless such scheduled date shall not be a Business Day, in which case such
payment shall be made on the next succeeding Business Day. The Agent agrees, at
a Lessee's request, to arrange for automated clearing house debits from such
Lessee's accounts for payments due hereunder.
Section 3.4 Late Payment. If any Basic Rent shall not be paid on the
date when due, the related Lessee shall pay to the Agent, as Supplemental Rent,
interest (to the maximum extent permitted by law) on such overdue amount from
and including the due date thereof to but excluding the Business Day of payment
thereof at the Overdue Rate.
Section 3.5 Net Lease; No Setoff, Etc. This Lease is a net lease and
notwithstanding any other provision of this Lease, each Lessee shall pay all
Basic Rent and Supplemental Rent, and all costs, charges, assessments and other
expenses foreseen or unforeseen, for which such Lessee or any Indemnitee is or
shall become liable by reason of such Lessee's or such Indemnitee's estate,
right, title or interest in the Leased Properties, or that are connected with or
arise out of the acquisition (except the initial costs of purchase by Lessor of
its interest in any Leased Property, which costs, subject to the terms of the
Master Agreement, shall be funded by the Funding Parties pursuant to the Master
Agreement), construction (except costs to be funded under the Construction
Agency Agreement), installation, possession, use, occupancy, maintenance,
ownership, leasing, repairs and rebuilding of, or addition to, the Leased
Properties or any portion thereof, and any other amounts payable hereunder and
under the other Operative Documents without counterclaim, setoff, deduction or
defense and without abatement, suspension, deferment, diminution or reduction,
and each Lessee's obligation to pay all such amounts throughout the Lease Term,
including the Construction Term, is absolute and unconditional. The obligations
and liabilities of each Lessee hereunder shall in no way be released, discharged
or otherwise affected for any reason, including without limitation: (a) any
defect in the condition, merchantability, design, quality or fitness for use of
any Leased Property or any part thereof, or the failure of any Leased Property
to comply with all Applicable Law, including any inability to occupy or use any
Leased Property by reason of such non-compliance; (b) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of any Leased Property or any part
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thereof; (c) any restriction, prevention or curtailment of or interference with
any use of any Leased Property or any part thereof including eviction; (d) any
defect in title to or rights to any Leased Property or any Lien on such title or
rights or on any Leased Property; (e) any change, waiver, extension, indulgence
or other action or omission or breach in respect of any obligation or liability
of or by Lessor, the Agent or any Lender; (f) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceedings relating to any Lessee, Lessor, any Lender, the Agent or any other
Person, or any action taken with respect to this Lease by any trustee or
receiver of any Lessee, Lessor, any Lender, the Agent, any Ground Lessor or any
other Person, or by any court, in any such proceeding; (g) any claim that any
Lessee has or might have against any Person, including without limitation,
Lessor, any vendor, manufacturer, contractor of or for any Leased Property or
any part thereof, the Agent, any Ground Lessor, any Governmental Authority, or
any Lender; (h) any failure on the part of Lessor to perform or comply with any
of the terms of this Lease, any other Operative Document, any applicable IDB
Documentation or of any other agreement; (i) any invalidity or unenforceability
or illegality or disaffirmance of this Lease against or by any Lessee or any
provision hereof or any of the other Operative Documents or any provision of any
thereof whether or not related to the Transaction; (j) the impossibility or
illegality of performance by any Lessee, Lessor or both; (k) any action by any
court, administrative agency or other Governmental Authority; (l) any
restriction, prevention or curtailment of or interference with the Construction
or any use of any Leased Property or any part thereof; or (m) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing, whether
or not any Lessee shall have notice or knowledge of any of the foregoing. Except
as specifically set forth in Articles XIV or X of this Lease, this Lease shall
be noncancellable by each Lessee in any circumstance whatsoever and each Lessee,
to the extent permitted by Applicable Law, waives all rights now or hereafter
conferred by statute or otherwise to quit, terminate or surrender this Lease, or
to any diminution, abatement or reduction of Rent payable by such Lessee
hereunder. Each payment of Rent made by a Lessee hereunder shall be final and
such Lessee shall not seek or have any right to recover all or any part of such
payment from Lessor, the Agent, any Lender or any party to any agreements
related thereto for any reason whatsoever. Each Lessee assumes the sole
responsibility for the condition, use, operation, maintenance, and management of
the Leased Properties leased by it and Lessor shall have no responsibility in
respect thereof and shall have no liability for damage to the property of either
any Lessee or any subtenant of any Lessee on any account or for any reason
whatsoever, other than solely by reason of Lessor's willful misconduct or gross
negligence.
Section 3.6 Certain Taxes. Without limiting the generality of Section
3.5, each Lessee agrees to pay when due all real estate taxes, personal property
taxes, gross sales taxes, including any sales or lease tax imposed upon the
rental payments hereunder or under a sublease, occupational license taxes, water
charges, sewer charges, assessments of any nature and all other governmental
impositions and charges of every kind and nature whatsoever (the "tax(es)"),
when the same shall be due and payable without penalty or interest; provided,
however, that this Section shall not apply to any of the taxes covered by the
exclusion described in Section 7.4(b) of
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the Master Agreement. It is the intention of the parties hereto that, insofar as
the same may lawfully be done, Lessor shall be, except as specifically provided
for herein, free from all expenses in any way related to the Leased Properties
and the use and occupancy thereof. Any tax relating to a fiscal period of any
taxing authority falling partially within and partially outside the Lease Term,
shall be apportioned and adjusted between Lessor and the related Lessee. Each
Lessee covenants to furnish Lessor and the Agent, upon the Agent's written
request, within forty-five (45) days after the last date when any tax must be
paid by such Lessee as provided in this Section 3.6, official receipts of the
appropriate taxing, authority or other proof satisfactory to Lessor, evidencing
the payment thereof.
So long as no Event of Default has occurred and is continuing, the
related Lessee may defer payment of a tax so long as the validity or the amount
thereof is contested by such Lessee with diligence and in good faith; provided,
however, that such Lessee shall pay the tax in sufficient time to prevent
delivery of a tax deed. Such contest shall be at the related Lessee's sole cost
and expense. Each Lessee covenants to indemnify and save harmless Lessor, the
Agent and each Lender from any actual and reasonable costs or expenses incurred
by Lessor, the Agent or any Lender as a result of such contest, which
indemnification shall survive the termination of this Lease; provided that
neither the Agent nor any Lender shall be entitled to claim any indemnity
against any Lessee pursuant to this sentence with respect to any Construction
Land Interest during the Construction Term therefor.
Section 3.7 Utility Charges. Each Lessee agrees to pay or cause to be
paid as and when the same are due and payable all charges for gas, water, sewer,
electricity, lights, heat, power, telephone or other communication service and
all other utility services used, rendered or supplied to, upon or in connection
with the Leased Properties leased by it.
ARTICLE IV.
WAIVERS
During the Lease Term, Lessor's interest in the Leased Properties,
including the Equipment, the Building(s) (whether or not completed) and the
Land, is demised and let by Lessor "AS IS" subject to (a) the rights of any
parties in possession thereof, (b) the state of the title thereto existing at
the time Lessor acquired its interest in the Leased Properties, (c) any state of
facts which an accurate survey or physical inspection might show (including the
survey delivered on the related Closing Date), (d) all Applicable Law, and (e)
any violations of Applicable Law which may exist upon or subsequent to the
commencement of the Lease Term. EACH LESSEE ACKNOWLEDGES THAT, ALTHOUGH LESSOR
WILL OWN AND HOLD TITLE TO THE LEASED PROPERTIES, LESSOR IS NOT A MANUFACTURER
OF, OR DEALER IN ANY LEASED PROPERTY, AND IS NOT RESPONSIBLE FOR THE DESIGN,
DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE BUILDING(S) OR ANY ALTERATIONS.
NEITHER LESSOR, THE AGENT NOR ANY LENDER HAS MADE OR
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SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE VALUE,
MERCHANTABILITY, TITLE, HABITABILITY, CONDITION, DESIGN, OPERATION, OR FITNESS
FOR USE OF THE LEASED PROPERTIES (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
LEASED PROPERTIES (OR ANY PART THEREOF), ALL SUCH WARRANTIES BEING HEREBY
DISCLAIMED, AND NEITHER LESSOR, THE AGENT NOR ANY LENDER SHALL BE LIABLE FOR ANY
LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF ANY LEASED PROPERTY,
OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW, except that Lessor
hereby represents and warrants that each Leased Property is and shall be free of
Lessor Liens. As between Lessor and the Lessees, each related Lessee has been
afforded full opportunity to inspect each Leased Property, is satisfied with the
results of its inspections of such Leased Property and is entering into this
Lease solely on the basis of the results of its own inspections and all risks
incident to the matters discussed in the two preceding sentences, as between
Lessor, the Agent or the Lenders on the one hand, and the Lessees, on the other,
are to be borne by the Lessees, except for the foregoing representation and
warranty of Lessor relative to the absence of Lessor Liens. The provisions of
this Article IV have been negotiated, and, except to the extent otherwise
expressly stated, the foregoing provisions are intended to be a complete
exclusion and negation of any representations or warranties by Lessor, the Agent
or the Lenders, express or implied, with respect to the Leased Properties, that
may arise pursuant to any law now or hereafter in effect, or otherwise.
ARTICLE V.
LIENS; EASEMENTS; PARTIAL CONVEYANCES
No Lessee shall directly or indirectly create, incur or assume, any
Lien on or with respect to any Leased Property, the title thereto, or any
interest therein, including any Liens which arise out of the possession, use,
occupancy, construction, repair or rebuilding of any Leased Property or by
reason of labor or materials furnished or claimed to have been furnished to a
Lessee, or any of its contractors or agents or Alterations constructed by a
Lessee, except, in all cases, Permitted Liens.
Notwithstanding the foregoing paragraph, at the request of a Lessee,
Lessor shall, from time to time during the Lease Term and upon reasonable
advance written notice from such Lessee, and receipt of the materials specified
in the next succeeding sentence, consent to and join in any (i) grant of
easements, licenses, rights of way and other rights in the nature of easements,
including, without limitation, utility easements to facilitate Lessees' use,
development and construction of the Leased Properties, (ii) release or
termination of easements, licenses, rights of way or other rights in the nature
of easements which are for the benefit of the Land or the Building(s) or any
portion thereof, (iii) dedication or transfer of portions of the Land, not
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improved with a Building, for road, highway or other public purposes, (iv)
execution of agreements for ingress and egress and amendments to any covenants
and restrictions affecting the Land or the Building(s) or any portion thereof
and (v) request to any Governmental Authority for platting or subdivision or
replatting or resubdivision approval with respect to the Land or any portion
thereof or any parcel of land of which the Land or any portion thereof forms a
part or a request for rezoning or any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall be
subject to the requirements that:
(a) any such action shall be at the sole cost and expense of the
requesting Lessee and such Lessee shall pay all actual and reasonable
out-of-pocket costs of Lessor, the Agent and any Lender in connection therewith
(including, without limitation, the reasonable fees of attorneys, architects,
engineers, planners, appraisers and other professionals reasonably retained by
Lessor, the Agent or any Lender in connection with any such action),
(b) the requesting Lessee shall have delivered to Lessor and Agent a
certificate of a Responsible Officer of such Lessee stating that
(i) such action will not cause any Leased Property, the Land
or any Building or any portion thereof to fail to comply in any
material respect with the provisions of this Lease or any other
Operative Documents or any applicable IDB Documentation, or in any
material respect with Applicable Law; and
(ii) such action will not materially reduce the Fair Market
Sales Value, utility or useful life of any Leased Property, the Land or
any Building nor Lessor's interest therein; and
(c) in the case of any release or conveyance, if Lessor, the Agent or
any Lender so reasonably requests, the requesting Lessee will cause to be issued
and delivered to Lessor and the Agent by the Title Insurance Company an
endorsement to the Title Policy pursuant to which the Title Insurance Company
agrees that its liability for the payment of any loss or damage under the terms
and provisions of the Title Policy will not be affected by reason of the fact
that a portion of the real property referred to in Schedule A of the Title
Policy has been released or conveyed by Lessor.
ARTICLE VI.
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section 6.1 Maintenance and Repair; Compliance With Law. Each Lessee,
at its own expense, shall at all times (a) maintain each Leased Property leased
by it in good repair and condition (subject to ordinary wear and tear), in
accordance with prudent industry standards and,
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in any event, in no less a manner as other similar property owned or leased by
such Lessee or its Affiliates, (b) make all Alterations in accordance with, and
maintain (whether or not such maintenance requires structural modifications or
Alterations) and operate and otherwise keep each Leased Property in compliance
in all material respects with, all Applicable Laws and insurance requirements,
and (c) make all material repairs, replacements and renewals of each Leased
Property or any part thereof which may be required to keep such Leased Property
in the condition required by the preceding clauses (a) and (b). Each Lessee
shall perform the foregoing maintenance obligations regardless of whether any
Leased Property is occupied or unoccupied. Each Lessee waives any right that it
may now have or hereafter acquire to (i) require Lessor, the Agent or any Lender
to maintain, repair, replace, alter, remove or rebuild all or any part of any
Leased Property or (ii) make repairs at the expense of Lessor, the Agent or any
Lender pursuant to any Applicable Law or other agreements or otherwise. NEITHER
LESSOR, THE AGENT NOR ANY LENDER SHALL BE PERSONALLY LIABLE TO ANY LESSEE OR TO
ANY CONTRACTORS, SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR
SERVICES PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED
PROPERTY OR ANY PART THEREOF. Neither Lessor, the Agent nor any Lender shall be
required to maintain, alter, repair, rebuild or replace any Leased Property in
any way.
Section 6.2 Alterations. Each Lessee may, without the consent of
Lessor, at such Lessee's own cost and expense, make Alterations which do not
diminish the value, utility or useful life of any Leased Property.
Section 6.3 Title to Alterations. Title to all Alterations shall
without further act vest in Lessor (subject to each Lessee's right to remove
trade fixtures, personal property and equipment which do not constitute
Alterations and which were not acquired with funds advanced by Lessor or any
Lender) and shall be deemed to constitute a part of the Leased Properties and be
subject to this Lease.
ARTICLE VII.
USE
Each Lessee may use each Leased Property leased by it or any part
thereof for any lawful purpose, and in a manner consistent with the standards
applicable to properties of a similar nature in the geographic area in which
such Leased Property is located, provided that such use does not materially
adversely affect the Fair Market Sales Value, utility, remaining useful life or
residual value of such Leased Property, and does not materially violate or
conflict with, or constitute or result in a material default under, any
Applicable Law or any insurance policy required hereunder. In the event that any
use of any of the Leased Property changes the character or original intended use
of such Leased Property and the Lessees do not purchase the Leased Properties at
the end of the Lease Term, the related Lessee, upon request of Lessor, shall
restore
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such Leased Property to its general character and intended use on the Closing
Date or Completion Date therefor, ordinary wear and tear excepted. No Lessee
shall commit or permit any waste of any Leased Property or any material part
thereof.
ARTICLE VIII.
INSURANCE
(a) At any time during which any part of any Building or any Alteration
is under construction and as to any part of any Building or any Alteration under
construction, the related Lessee shall maintain, or cause to be maintained, at
its sole cost and expense, as a part of its blanket policies or otherwise, "all
risks" non-reporting completed value form of builder's risk insurance.
(b) During the Lease Term, each Lessee shall maintain, at its sole cost
and expense, as a part of its blanket policies or otherwise, insurance against
loss or damage to any Building or any item of equipment included in the Leased
Property by fire and other risks, including comprehensive boiler and machinery
coverage, on terms and in amounts no less favorable than insurance covering
other similar properties or equipment owned or leased by a Lessee, but in no
event less than the replacement cost of such Building or item of equipment
included in the Leased Property, as the case may be, from time to time.
(c) During the Lease Term, each Lessee shall maintain, at its sole cost
and expense, commercial general liability insurance with respect to such
Lessee's use, operation and occupancy of the Leased Properties. Such insurance
shall be on terms and in amounts that are no less favorable than insurance
maintained by a Lessee or its Affiliates with respect to similar properties or
equipment that it owns or leases, but in no event less than $2,000,000 general
liability, plus $50,000,00 liability umbrella coverage, per occurrence. Such
insurance policies shall also provide that each Lessee's insurance shall be
considered primary insurance. Nothing in this Article VIII shall prohibit
Lessor, the Agent or any Lender from carrying at its own expense other insurance
on or with respect to the Leased Properties, provided that any insurance carried
by Lessor, the Agent or any Lender shall not prevent any Lessee from carrying
the insurance required hereby.
(d) Each policy of insurance maintained by a Lessee pursuant to clauses
(a) and (b) of this Article VIII shall provide that all insurance proceeds in
respect of any loss or occurrence shall be adjusted by such Lessee, except if,
and for so long as an Event of Default exists, all losses shall be adjusted
solely by, and all insurance proceeds shall be paid solely to, the Agent (or
Lessor if the Loans have been fully paid) for application pursuant to this
Lease.
(e) On the Closing Date for each parcel of Land and on each anniversary
of the related policy date each Lessee shall furnish Lessor with certificates
showing the insurance
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required under this Article VIII to be in effect and naming Lessor, the Agent
and the Lenders (and, in the case of the Mississippi Property, MBFC and the Bond
Trustee) as additional insureds. Such certificates shall include a provision for
thirty (30) days' advance written notice by the insurer to Lessor and the Agent
in the event of cancellation or expiration or nonpayment of premium with respect
to such insurance, and shall include a customary breach of warranty clause. Each
Lessee shall provide evidence to Lessor and the Agent that each insurance policy
required by this Article VIII has been renewed or replaced prior to the
scheduled expiration date therefor.
(f) Each policy of insurance maintained by a Lessee pursuant to this
Article VIII shall provide that in respect of the interests of Lessor, the Agent
and the Lenders, such policies shall not be invalidated by any fraud, action,
inaction or misrepresentation of any Lessee or any other Person acting on behalf
of any Lessee. Each of each Lessee, Lessor, the Agent and the Lenders agree to
waive their rights of subrogation against the others to the extent of the losses
paid under insurance policies.
(g) All insurance policies carried in accordance with this Article VIII
shall be maintained with insurers rated at least A by A.M. Best & Company, and
in all cases the insurer shall be qualified to insure risks in the State where
each Leased Property is located.
ARTICLE IX.
ASSIGNMENT AND SUBLEASING
No Lessee may assign any of its right, title or interest in, to or
under this Lease, except as set forth in the following sentence. Each Lessee may
sublease all or any portion of any Leased Property, provided that (a) all
obligations of such Lessee shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no sublease had been made;
(b) such sublease shall be expressly subject and subordinate to this Lease, the
Loan Agreement and the other Operative Documents; and (c) each such sublease
shall terminate on or before the Lease Termination Date. Each Lessee shall give
the Agent and Lessor prompt written notice of any such sublease.
Except pursuant to an Operative Document, this Lease shall not be
mortgaged or pledged by any Lessee, nor shall any Lessee mortgage or pledge any
interest in any Leased Property or any portion thereof. Any such mortgage or
pledge shall be void.
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ARTICLE X.
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
Section 10.1 Event of Loss. Any event (i) which would otherwise
constitute a Casualty during the Base Term, and (ii) which, in the good-faith
judgment of the related Lessee, renders repair and restoration of a Leased
Property impossible or impractical, or requires repairs to a Leased Property
that would cost in excess of 50% of the original cost of such Leased Property,
and (iii) as to which such Lessee, within sixty (60) days after the occurrence
of such event, delivers to Lessor an Officer's Certificate notifying Lessor of
such event and of such judgment, shall constitute an "Event of Loss". In the
case of any other event which constitutes a Casualty, the related Lessee shall
restore such Leased Property pursuant to Section 10.3. If an Event of Loss other
than an Event of Taking shall occur, the related Lessee shall pay to Lessor on
the earlier of (i) the Lease Termination Date and (ii) the next Payment Date
occurring not less than ninety (90) days after the delivery of the Officer's
Certificate pursuant to clause (iii) above an amount equal to the related Leased
Property Balance. Upon Lessor's receipt of such Leased Property Balance on such
date, Lessor shall cause Lessor's interest in such Leased Property to be
conveyed to the related Lessee in accordance with and subject to the provisions
of Section 14.5 hereof; upon completion of such purchase, but not prior thereto,
this Lease with respect to such Leased Property and all obligations hereunder
with respect to such Leased Property shall terminate, except with respect to
obligations and liabilities hereunder, actual or contingent, that have arisen or
relate to events occurring on or prior to such date of purchase, or which are
expressly stated herein to survive termination of this Lease.
Upon the consummation of the purchase of any Leased Property pursuant
to this Section 10.1, any proceeds derived from insurance required to be
maintained by the related Lessee pursuant to this Lease for any Leased Property
remaining after payment of such purchase price shall be paid over to, or
retained by, such Lessee or as it may direct, and Lessor shall assign to such
Lessee, without warranty, all of Lessor's rights to and interest in such
insurance required to be maintained by such Lessee pursuant to this Lease.
Section 10.2 Event of Taking. Any event (i) which constitutes a
Condemnation of all of, or substantially all of, a Leased Property, or (ii) (A)
which would otherwise constitute a Condemnation, (B) which, in the good-faith
judgment of the related Lessee, renders restoration and rebuilding of a Leased
Property impossible or impractical, or requires repairs to a Leased Property
that would cost in excess of 50% of the original cost of such Leased Property,
and (C) as to which such Lessee, within sixty (60) days after the occurrence of
such event, delivers to Lessor an Officer's Certificate notifying Lessor of such
event and of such judgment, shall constitute an "Event of Taking". In the case
of any other event which constitutes a Condemnation, the related Lessee shall
restore and rebuild such Leased Property pursuant to Section 10.4. If an Event
of Taking shall occur, the related Lessee shall pay to Lessor (1) on the earlier
of (A) the Lease Termination Date and (B) the next Payment Date occurring not
less than 120 days after the occurrence of such Event of Taking, in the case of
an Event of Taking described in clause (i) above, or (2) on the earlier of (A)
the Lease Termination Date and (B) the next Payment Date occurring not less than
120 days after the delivery of the Officer's Certificate pursuant to clause (ii)
above, in the case of an Event of Taking described in clause (ii) above, an
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amount equal to the related Leased Property Balance. Upon Lessor's receipt of
such Leased Property Balance on such date, Lessor shall cause Lessor's interest
in such Leased Property, and in all condemnation proceeds related thereto, to be
conveyed to the related Lessee in accordance with and subject to the provisions
of Section 14.5 hereof (provided that such conveyance shall be subject to all
rights of the condemning authority); upon completion of such purchase, but not
prior thereto, this Lease with respect to such Leased Property and all
obligations hereunder with respect to such Leased Property shall terminate,
except with respect to obligations and liabilities hereunder, actual or
contingent, that have arisen or relate to events occurring on or prior to such
date of purchase, or which are expressly stated herein to survive termination of
this Lease.
Upon the consummation of the purchase of such Leased Property pursuant
to this Section 10.2, all Awards received by Lessor, after deducting any
reasonable out-of-pocket costs incurred by Lessor in collecting such Awards,
received or payable on account of an Event of Taking with respect to such Leased
Property during the related Lease Term shall be promptly paid to the related
Lessee, and all rights of Lessor in Awards not then received shall be assigned
to Lessee by Lessor.
Section 10.3 Casualty. If a Casualty shall occur which is not an Event
of Loss, the related Lessee shall rebuild and restore the affected Leased
Property, will complete the same prior to the Lease Termination Date, and will
cause the condition set forth in Section 3.5 (c) of the Master Agreement to be
fulfilled with respect to such restoration and rebuilding prior to the Lease
Termination Date, regardless of whether insurance proceeds received as a result
of such Casualty are sufficient for such purpose.
Section 10.4 Condemnation. If a Condemnation shall occur which is not
an Event of Taking, the related Lessee shall rebuild and restore the affected
Leased Property, will complete the same prior to the Lease Termination Date, and
will cause the condition set forth in Section 3.5 (c) of the Master Agreement to
be fulfilled with respect to such restoration and rebuilding prior to the Lease
Termination Date.
Section 10.5 Verification of Restoration and Rebuilding. In the event
of Casualty or Condemnation that involves, or is reasonably expected to involve,
repair or rebuilding costs in excess of $1,000,000, to verify the related
Lessee's compliance with the foregoing Section 10.3 or 10.4, as appropriate,
Lessor, the Agent, the Lenders and their respective authorized representatives
may, upon five (5) Business Days' notice to such Lessee, make a reasonable
number of inspections of the affected Leased Property with respect to (i) the
extent of the Casualty or Condemnation and (ii) the restoration and rebuilding
of the related Building and the Land. All actual and reasonable out-of-pocket
costs of such inspections incurred by Lessor, the Agent or any Lender will be
paid by the related Lessee promptly after written request. No such inspection
shall unreasonably interfere with the related Lessee's operations or the
operations of any other occupant of such Leased Property. None of the inspecting
parties shall have any duty
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to make any such inspection or inquiry and none of the inspecting parties shall
incur any liability or obligation by reason of making or not making any such
inspection or inquiry.
Section 10.6 Application of Payments. All proceeds (except for payments
under insurance policies maintained other than pursuant to Article VIII of this
Lease) received at any time by Lessor, any Lessee or the Agent from any
Governmental Authority or other Person with respect to any Condemnation or
Casualty to any Leased Property or any part thereof or with respect to an Event
of Loss or an Event of Taking, plus the amount of any payment that would have
been due from an insurer but for a Lessee's self-insurance or deductibles ("Loss
Proceeds"), shall (except to the extent Section 10.9 applies) be applied as
follows:
(a) In the event the related Lessee purchases such Leased Property
pursuant to Section 10.1 or Section 10.2, such Loss Proceeds shall be applied as
set forth in Section 10.1 or Section 10.2, as the case may be;
(b) In the event of a Casualty at such time when no Event of Default
has occurred and is continuing and the related Lessee is obligated to repair and
rebuild such Leased Property pursuant to Section 10.3, such Lessee may, in good
faith and subsequent to the date of such Casualty, certify to Lessor and to the
applicable insurer that no Event of Default has occurred and is continuing, in
which event the applicable insurer shall pay the Loss Proceeds to such Lessee;
(c) In the event of a Condemnation at such time when no Event of
Default has occurred and is continuing and the related Lessee is obligated to
repair and rebuild such Leased Property pursuant to Section 10.4, such Lessee
may, in good faith and subsequent to the date of such Condemnation, certify to
Lessor and the Agent that no Event of Default has occurred and is continuing, in
which event the applicable Award shall be paid over to such Lessee; and
(d) As provided in Section 10.8, if such section is applicable.
During any period of repair or rebuilding pursuant to this Article X,
this Lease will remain in full force and effect and Basic Rent shall continue to
accrue and be payable without abatement or reduction. Each Lessee shall maintain
records setting forth information relating to the receipt and application of
payments in accordance with this Section 10.6. Such records shall be kept on
file by each Lessee at its offices and shall be made available to Lessor, the
Lenders and the Agent upon request.
Section 10.7 Prosecution of Awards. (a) If any Condemnation shall
occur, the party receiving the notice of such Condemnation shall give to the
other party and the Agent promptly, but in any event within thirty (30) days
after the occurrence thereof, written notice of such occurrence and the date
thereof, generally describing the nature and extent of such
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Condemnation. With respect to any Event of Taking or any Condemnation, the
related Lessee shall control the negotiations with the relevant Governmental
Authority as to any proceeding in respect of which Awards are required, under
Section 10.6, to be assigned or released to such Lessee, unless an Event of
Default shall have occurred and be continuing, in which case (i) the Agent (or
Lessor if the Loans have been fully paid) shall control such negotiations; and
(ii) such Lessee hereby irrevocably assigns, transfers and sets over to Lessor
all rights of such Lessee to any Award on account of any Event of Taking or any
Condemnation and, if there will not be separate Awards to Lessor and such Lessee
on account of such Event of Taking or Condemnation, irrevocably authorizes and
empowers the Agent (or Lessor if the Loans have been fully paid) during the
continuance of an Event of Default, with full power of substitution, in the name
of such Lessee or otherwise (but without limiting the obligations of such Lessee
under this Article X), to file and prosecute what would otherwise be such
Lessee's claim for any such Award and to collect, receipt for and retain the
same. In any event Lessor and the Agent may participate in such negotiations,
and no settlement will be made without the prior consent of the Agent (or Lessor
if the Loans have been fully paid), not to be unreasonably withheld.
(b) Notwithstanding the foregoing, each Lessee may prosecute, and
Lessor shall have no interest in, any claim with respect to such Lessee's
personal property and equipment not financed by or otherwise property of Lessor,
business interruption or similar award and such Lessee's relocation expenses.
Section 10.8 Application of Certain Payments Not Relating to an Event
of Taking. In case of a requisition for temporary use of all or a portion of any
Leased Property which is not an Event of Taking, this Lease shall remain in full
force and effect with respect to such Leased Property, without any abatement or
reduction of Basic Rent, and the Awards for such Leased Property shall, unless
an Event of Default has occurred and is continuing, be paid to the related
Lessee.
Section 10.9 Other Dispositions. Notwithstanding the foregoing
provisions of this Article X, so long as an Event of Default shall have occurred
and be continuing, any amount that would otherwise be payable to or for the
account of, or that would otherwise be retained by, Lessee pursuant to this
Article X shall be paid to the Agent (or Lessor if the Loans have been fully
paid) as security for the obligations of the Lessees under this Lease and, at
such time thereafter as no Event of Default shall be continuing, such amount
shall be paid promptly to the related Lessee to the extent not previously
applied by Lessor or the Agent in accordance with the terms of this Lease or the
other Operative Documents.
Section 10.10 No Rent Abatement. Rent shall not xxxxx hereunder by
reason of any Casualty, any Event of Loss, any Event of Taking or any
Condemnation of any Leased Property, and each Lessee shall continue to perform
and fulfill all of such Lessee's obligations, covenants and agreements hereunder
notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation
until the Lease Termination Date.
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ARTICLE XI.
INTEREST CONVEYED TO LESSEES
Each Lessee and Lessor intend that this Lease be treated, for
accounting purposes, as an operating lease. For purposes of federal and state
income taxes, and bankruptcy law, each Lessee and Lessor intend that the
transaction represented by this Lease be treated as a financing transaction; for
such purposes, it is the intention of the parties hereto (i) that this Lease be
treated as a mortgage or deed of trust (whichever is applicable in the
jurisdictions in which the Leased Properties are located) and security
agreement, encumbering the Leased Properties, and that each Lessee, as grantor,
hereby grants to Lessor, as mortgagee or beneficiary and secured party, or any
successor thereto, a first and paramount Lien on each Leased Property in which
such Lessee has an interest, (ii) that Lessor shall have, as a result of such
determination, all of the rights, powers and remedies of a mortgagee, deed of
trust beneficiary or secured party available under Applicable Law to take
possession of and sell (whether by foreclosure or otherwise) any Leased
Property, (iii) that the effective date of such mortgage, security deed or deed
of trust shall be the effective date of this Lease, or the related Lease
Supplement, if later, (iv) that the recording of this Lease or a Lease
Supplement shall be deemed to be the recording of such mortgage, security deed
or deed of trust, (v) that the obligations secured by such mortgage, security
deed or deed of trust shall include the Funded Amounts and all Basic Rent and
Supplemental Rent hereunder and all other obligations of and amounts due from
each Lessee hereunder and under the Operative Documents and (vi) that the
related Lessee will be treated as the owner of the Leased Properties leased by
such Lessee for tax purposes.
ARTICLE XII.
EVENTS OF DEFAULT
The following events shall constitute Events of Default (whether any
such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) any Lessee shall fail to make any payment of Basic Rent within five
(5) days after receipt of notice from Lessor or the Agent to DAP SUB that such
Basic Rent is due;
(b) any Lessee shall fail to make any payment of Rent (other than Basic
Rent and other than as set forth in clause (c)) or any other amount payable
hereunder or under any of the other Operative Documents (other than Basic Rent
and other than as set forth in clause (c)), and such failure shall continue for
a period of ten Business Days after written notice thereof from Lessor or the
Agent to DAP SUB;
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(c) any Lessee shall fail to pay the Funded Amount or Lease Balance
when due pursuant to Section 10.1, 10.2, 14.1 or 14.2, or any Lessee shall fail
to pay the Recourse Deficiency Amount when required pursuant to Article XIV or
the Construction Agent shall fail to make any payment when due under the
Construction Agency Agreement;
(d) any Lessee shall fail to maintain insurance as required by Article
VIII hereof, and such failure shall continue until the earlier of (i) fifteen
(15) days after written notice thereof from Lessor and (ii) the day immediately
preceding the date on which any applicable insurance coverage would otherwise
finally lapse or terminate;
(e) any Consolidated Company shall fail to make when due (whether at
stated maturity, by acceleration, on demand or otherwise, and after giving
effect to any applicable grace period) any payment of principal of or interest
on any Indebtedness (other than the Obligations) which individually or in the
aggregate exceeds $5,000,000.00;
(f) any Consolidated Company shall fail to observe or perform any
covenants or agreements (other than those referenced in paragraph (e) above)
contained in any agreements or instruments relating to any of its Indebtedness
which individually or in the aggregate exceeds $5,000,000 or any other event
shall occur if the effect of such failure or other event is to accelerate, or to
permit the holder of such Indebtedness or any other Person to accelerate, the
maturity of such Indebtedness; or any such Indebtedness shall be required to be
prepaid (other than by a regularly scheduled required prepayment) in whole or in
part prior to its stated maturity;
(g) DAP or any other Consolidated Company shall commence a voluntary
case concerning itself under the Bankruptcy Code or an involuntary case for
bankruptcy is commenced against any Consolidated Company and the petition is not
controverted within 30 days after issuance by the Bankruptcy Court of the
summons directed to and properly served upon DAP or any Consolidated Company, or
is not dismissed within 90 days, after commencement of the case; or a custodian
(as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
any substantial part of the property of any Consolidated Company; or any
Consolidated Company commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether now or
hereafter in effect, relating to any Consolidated Company or there is commenced
against any Consolidated Company any such proceeding which remains undismissed
for a period of 90 days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Consolidated Company suffers any appointment of
any custodian or the like for it or any substantial part of its property which
continues undischarged or unstayed for a period of 90 days; or any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is unable
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to pay, or shall be unable to pay, its debts generally as they become due; or
any Consolidated Company shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of the foregoing;
(h) (i) the occurrence of any Termination Event with respect to
a Plan;
(ii) any Plan incurs an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Act Section 302 of ERISA) for
which a waiver has not been obtained in accordance with the applicable
provisions of the Code and ERISA;
(iii) DAP or any ERISA Affiliate is in "default" (as defined
in Act Section 4219 (c)(5) of ERISA) with respect to payments to a
Multiemployer Plan resulting from the complete or partial withdrawal
(as described in Act Section 4203 or 4205 of ERISA) from such
Multiemployer Plan; or
(iv) any assertion of liability by the IRS, Department of
Labor or PBGC or any of such agency's successors with respect to any
Plan which results in a liability to DAP or any of its ERISA
Affiliates;
and there shall result from any such Termination Event, deficiency, default in
payment, liability or other event a liability to the PBGC or a Plan that would
have a Material Adverse Effect.
(i) a judgment, tax lien or order for the payment of money in excess of
$5,000,000.00, or otherwise reasonably anticipated to have a Material Adverse
Effect, shall be rendered against DAP or any other Consolidated Company and such
judgment or order shall continue unsatisfied (in the case of a money judgment)
and in effect for a period of 60 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
(j) (i) any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act), except any current stockholder
of DAP who owns, as of the date of this Lease, at least twenty percent
(20%) of the issued and outstanding capital stock of the DAP, shall
become the "beneficial owner(s)" (as defined in said Rule 13d-3) of
more than thirty percent (30%) of the shares of the outstanding common
stock of DAP entitled to vote for members of DAP's board of directors;
or
(ii) any event or condition shall occur or exist which,
pursuant to the terms of any change in control provision, requires or
permits the holder(s) of Indebtedness of any Consolidated Company to
require that such Indebtedness be redeemed, repurchased,
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defeased, prepaid or repaid, in whole or in part, or the maturity of
such Indebtedness to be accelerated in any respect;
(k) an attachment or similar action shall be made on or taken against
any of the assets of any Consolidated Company and is not removed, suspended or
enjoined within 60 days of the same being made or any suspension or injunction
being lifted;
(l) if any of the Operative Documents shall be cancelled, terminated,
revoked or rescinded or any action at law, suit or in equity or other legal
proceeding to cancel, revoke or rescind any of the Operative Documents shall be
commenced by or on behalf of any Obligor, or any court or any other governmental
or regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Operative Documents is illegal, invalid or
unenforceable in accordance with the terms thereof in any material respect, and
the enforcement of such judgment, order, decree or ruling is not stayed or
suspended within 60 days of the entry thereof;
(m) any representation or warranty by DAP or any Lessee in any
Operative Document or in any certificate or document delivered to Lessor, the
Agent or any Funding Party pursuant to any Operative Document shall have been
incorrect in any material respect when made;
(n) any Lessee or DAP shall fail in any material respect to timely,
perform or observe any covenant or agreement (not included in clause (a) through
(m) of this Article XII) to be performed or observed by it hereunder or under
any other Operative Document and such failure shall continue for a period of
thirty (30) days (or 10 Business Days in the case of financial covenants) after
such Lessee's or DAP SUB's receipt of written notice thereof from Lessor, the
Agent or any Funding Party or such Lessee or DAP SUB shall have actual knowledge
of such failure; provided, however, that if such failure is capable of cure, but
is not capable of cure within such thirty day period, so long as such Lessee or
DAP SUB shall be diligently pursuing such cure, such failure shall not
constitute an Event of Default unless it shall continue for a period of ninety
(90) days after such Lessee's or DAP SUB's receipt of notice or actual knowledge
thereof.
ARTICLE XIII.
ENFORCEMENT
Section 13.1 Remedies. Upon the occurrence and during the continuance
of any Event of Default, Lessor may do one or more of the following as Lessor in
its sole discretion shall determine, without limiting any other right or remedy
Lessor may have on account of such Event of Default (including, without
limitation, the obligation of the Lessees to purchase the Leased Properties as
set forth in Section 14.3):
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(a) Lessor may, by notice to DAP SUB, rescind or terminate this Lease
as of the date specified in such notice; however, (A) no reletting, reentry or
taking of possession of any Leased Property by Lessor will be construed as an
election on Lessor's part to terminate this Lease unless a written notice of
such intention is given to DAP SUB, (B) notwithstanding any reletting, reentry
or taking of possession, Lessor may at any time thereafter elect to terminate
this Lease for a continuing Event of Default, and (C) no act or thing done by
Lessor or any of its agents, representatives or employees and no agreement
accepting a surrender of any Leased Property shall be valid unless the same be
made in writing and executed by Lessor;
(b) Lessor may (i) demand that the Lessees, and the Lessees shall upon
the written demand of Lessor, return the Leased Properties promptly to Lessor in
the manner and condition required by, and otherwise in accordance with all of
the provisions of, Articles VI and XIV hereof as if the Leased Properties were
being returned at the end of the Lease Term, and Lessor shall not be liable for
the reimbursement of any Lessee for any costs and expenses incurred by such
Lessee in connection therewith and (ii) without prejudice to any other remedy
which Lessor may have for possession of the Leased Properties, and to the extent
and in the manner permitted by Applicable Law, enter upon any Leased Property
and take immediate possession of (to the exclusion of the related Lessee) any
Leased Property or any part thereof and expel or remove the related Lessee and
any other person who may be occupying such Leased Property, by summary
proceedings or otherwise, all without liability to any Lessee for or by reason
of such entry or taking of possession, whether for the restoration of damage to
property caused by such taking or otherwise and, in addition to Lessor's other
damages, the Lessees shall be responsible for the actual and reasonable costs
and expenses of reletting, including brokers' fees and the reasonable
out-of-pocket costs of any alterations or repairs made by Lessor;
(c) Lessor may (i) sell all or any part of any Leased Property at
public or private sale, as Lessor may determine, free and clear of any rights of
any Lessee and without any duty to account to any Lessee with respect to such
action or inaction or any proceeds with respect thereto (except to the extent
required by Applicable Law or clause (ii) below if Lessor shall elect to
exercise its rights thereunder) in which event the related Lessee's obligation
to pay Basic Rent for such Leased Property hereunder for periods commencing
after the date of such sale shall be terminated or proportionately reduced, as
the case may be; and (ii) if Lessor shall so elect, demand that the related
Lessee pay to Lessor, and the related Lessee shall pay to Lessor, on the date of
such sale, as liquidated damages for loss of a bargain and not as a penalty (the
parties agreeing that Lessor's actual damages would be difficult to predict, but
the aforementioned liquidated damages represent a reasonable approximation of
such amount) (in lieu of Basic Rent due for periods commencing on or after the
Payment Date coinciding with such date of sale (or, if the sale date is not a
Payment Date, the Payment Date next preceding the date of such sale)), an amount
equal to (a) the excess, if any, of (1) the sum of (A) all Rent due and unpaid
to and including such Payment Date and (B) the Funded Amounts with respect to
such Leased Property, computed as of such date, over (2) the net proceeds of
such sale (that is, after deducting all out-of-pocket costs and expenses
incurred by Lessor, the Agent or any Lender incident to such
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conveyance (including, without limitation, all costs, expenses, fees, premiums
and taxes described in Section 14.5(b))); plus (b) interest at the Overdue Rate
on the foregoing amount from such Payment Date until the date of payment;
(d) Lessor may, at its option, not terminate this Lease, and continue
to collect all Basic Rent, Supplemental Rent, and all other amounts (including,
without limitation, the Funded Amount) due Lessor (together with all costs of
collection) and enforce the Lessees' obligations under this Lease as and when
the same become due, or are to be performed, and at the option of Lessor, upon
any abandonment of any Leased Property by Lessee or re-entry of same by Lessor,
Lessor may, in its sole and absolute discretion, elect not to terminate this
Lease with respect thereto and may make such reasonable alterations and
necessary repairs in order to relet such Leased Property, and relet such Leased
Property or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Lessor in its reasonable discretion may deem
advisable; and upon each such reletting all rentals actually received by Lessor
from such reletting shall be applied to the Lessees' obligations hereunder in
such order, proportion and priority as Lessor may elect in Lessor's sole and
absolute discretion. If such rentals received from such reletting during any
Rent Period are less than the Rent to be paid during that Rent Period by the
Lessees hereunder, the Lessees shall pay any deficiency, as reasonably
calculated by Lessor, to Lessor on the Payment Date for such Rent Period;
(e) Lessor may, whether or not Lessor shall have exercised or shall
thereafter at any time exercise any of its rights under paragraph (b), (c) or
(d) of this Article XIII, demand, by written notice to DAP SUB specifying a date
(the "Final Rent Payment Date") not earlier than 30 days after the date of such
notice, that Lessees purchase, on the Final Rent Payment Date, all of the
remaining Leased Properties in accordance with the provisions of Sections 14.2,
14.4 and 14.5; provided, however, that (1) such purchase shall occur on the date
set forth in such notice, notwithstanding the provision in Section 14.2 calling
for such purchase to occur on the Lease Termination Date; and (2) Lessor's
obligations under Section 14.5(a) shall be limited to delivery of a special
warranty deed and quit claim xxxx of sale of such Leased Properties, without
recourse or warranty, but free and clear of Lessor Liens;
(f) Lessor may exercise any other right or remedy that may be available
to it under Applicable Law, or proceed by appropriate court action (legal or
equitable) to enforce the terms hereof or to recover damages for the breach
hereof. Separate suits may be brought to collect any such damages for any Rent
Period(s), and such suits shall not in any manner prejudice Lessor's right to
collect any such damages for any subsequent Rent Period(s), or Lessor may defer
any such suit until after the expiration of the Lease Term, in which event such
suit shall be deemed not to have accrued until the expiration of the Lease Term;
or
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(g) Lessor may retain and apply against Lessor's damages all sums which
Lessor would, absent such Event of Default, be required to pay to, or turn over
to, a Lessee pursuant to the terms of this Lease.
Section 13.2 Remedies Cumulative; No Waiver; Consents. To the extent
permitted by, and subject to the mandatory requirements of, Applicable Law, each
and every right, power and remedy herein specifically given to Lessor or
otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any right, power or remedy. No delay or omission by Lessor in the
exercise of any right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of any Lessee or to be an acquiescence therein. Lessor's
consent to any request made by any Lessee shall not be deemed to constitute or
preclude the necessity for obtaining Lessor's consent, in the future, to all
similar requests. No express or implied waiver by Lessor of any Event of Default
shall in any way be, or be construed to be, a waiver of any future or subsequent
Potential Event of Default or Event of Default. To the extent permitted by
Applicable Law, each Lessee hereby waives any rights now or hereafter conferred
by statute or otherwise that may require Lessor to sell, lease or otherwise use
any Leased Property or part thereof in mitigation of Lessor's damages upon the
occurrence of an Event of Default or that may otherwise limit or modify any of
Lessor's rights or remedies under this Article XIII.
Section 13.3 Purchase Upon an Event of Default. Upon the occurrence of
an Event of Default, until such time as Lessor commences material preparations
for the sale or re-lease of the Leased Properties, the Lessees may purchase all,
but not less than all, of the Leased Properties for the Lease Balance, plus any
amounts due pursuant to Section 7.5 of the Master Agreement. Such purchase shall
be made in accordance with Section 14.5, upon not less than five (5) Business
Days' written notice (which shall be irrevocable) to Lessor, which notice shall
set forth the date of purchase (which shall be a date no later than 30 Business
Days from the date of such notice).
ARTICLE XIV.
SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL
Section 14.1 Lessee's Option to Purchase. (a) Subject to the terms,
conditions and provisions set forth in this Article XIV, each Lessee shall have
the option (the "Purchase Option"), to be exercised as set forth below, to
purchase from Lessor, Lessor's interest in all of the Leased Properties;
provided that, except as set forth in paragraph (b) below, such option must
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be exercised with respect to all, but not less than all, of the Leased
Properties under all of the Lease Supplements. Such option must be exercised by
written notice to Lessor not later than six months prior to the Lease
Termination Date which notice shall be irrevocable; such notice shall specify
the date that such purchase shall take place, which date shall be a date
occurring not less than thirty (30) days after such notice or the Lease
Termination Date (whichever is earlier). If the Purchase Option is exercised
pursuant to the foregoing, then, subject to the provisions set forth in this
Article XIV, on the applicable purchase date or the Lease Termination Date, as
the case may be, Lessor shall convey to each Lessee, by special warranty deed
and xxxx of sale, without recourse or warranty (other than as to the absence of
Lessor Liens) and each Lessee shall purchase from Lessor, Lessor's interest in
the Leased Properties leased by such Lessee.
(b) Subject to the terms, conditions and provisions set forth in this
Article XIV, each Lessee shall have the option (the "Partial Purchase Option"),
to be exercised as set forth below, to purchase from Lessor Lessor's interest in
any Leased Property leased by such Lessee. Such option may be exercised by
written notice to Lessor at any time prior to the last six months of the term of
this Lease, which notice shall be irrevocable; such notice shall specify the
Leased Property to be purchased and the date that such purchase shall take
place, which date shall be a date occurring not less than thirty (30) days after
such notice. If a Partial Purchase Option is exercised pursuant to the
foregoing, subject to the provisions set forth in this Article XIV, on the
applicable purchase date, Lessor shall convey to the related Lessee, and such
Lessee shall purchase from Lessor, Lessor's interest in the Leased Property that
is the subject of such Partial Purchase Option pursuant to Section 14.5.
Section 14.2 Conveyance to Lessee. Unless (a) the Lessees shall have
properly exercised the Purchase Option and purchased the Leased Properties
pursuant to Section 14.1(a) or 14.1(b) hereof, or (b) the Lessees shall have
properly exercised the Remarketing Option and shall have fulfilled all of the
conditions of Section 14.6 hereof, then, subject to the terms, conditions and
provisions set forth in this Article XIV, each Lessee shall purchase from
Lessor, and Lessor shall convey to each Lessee, on the Lease Termination Date
all of Lessor's interest in the Leased Properties leased to such Lessee. Any
Lessee may designate, in a notice given to Lessor not less than ten (10)
Business Days prior to the closing of such purchase, or any purchase pursuant to
Section 14.1(a) or (b),(time being of the essence), the transferee to whom the
conveyance shall be made (if other than to such Lessee), in which case such
conveyance shall (subject to the terms and conditions set forth herein) be made
to such designee; provided, however, that such designation of a transferee shall
not cause any Lessee to be released, fully or partially, from any of its
obligations under this Lease.
Section 14.3 Acceleration of Purchase Obligation. The Lessees shall be
obligated to purchase Lessor's interest in the Leased Properties immediately,
automatically and without notice upon the occurrence of any Event of Default
specified in clause (g) of Article XII, for the purchase price set forth in
Section 14.4. Upon the occurrence and during the continuance of any other Event
of Default, the Lessees shall be obligated to purchase Lessor's interest in the
Leased
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Properties for the purchase price set forth in Section 14.4 upon notice of such
obligation from Lessor.
Section 14.4 Determination of Purchase Price. Upon the purchase by the
Lessees of Lessor's interest in the Leased Properties upon the exercise of the
Purchase Option or pursuant to Section 14.2 or 14.3, the aggregate purchase
price for all of the Leased Properties shall be an amount equal to the Lease
Balance as of the closing date for such purchase, plus any amount due pursuant
to Section 7.5(f) of the Master Agreement as a result of such purchase. Upon the
purchase by a Lessee of Lessor's interest in a Leased Property upon the exercise
of a Partial Purchase Option, the purchase price for such Leased Property shall
be an amount equal to the Leased Property Balance for such Leased Property as of
the closing date for such purchase, plus any amount due pursuant to Section
7.5(f) of the Master Agreement as the result of such purchase.
Section 14.5 Purchase Procedure. (a) If a Lessee shall purchase
Lessor's interest in a Leased Property pursuant to any provision of this Lease,
(i) such Lessee shall accept from Lessor and Lessor shall convey such Leased
Property by a duly executed and acknowledged special warranty deed and quit
claim xxxx of sale of such a Leased Property in recordable form, (ii) upon the
date fixed for any purchase of Lessor's interest in Leased Property hereunder,
the related Lessee(s) shall pay to the order of the Agent (or Lessor if the
Loans have been paid in full) the Lease Balance or Leased Property Balance, as
applicable, plus any amount due pursuant to Section 7.5 of the Master Agreement
as a result of such purchase by wire transfer of immediately available funds,
(iii) Lessor will execute and deliver to the related Lessee such other
documents, including releases, affidavits, termination agreements and
termination statements, as may be legally required or as may be reasonably
requested by Lessee in order to effect such conveyance, free and clear of Lessor
Liens and the Liens of the Operative Documents and (iv) if such Leased Property
is subject to a Ground Lease, Lessor will execute and deliver to the related
Lessee an assignment or termination of such Ground Lease, as directed by such
Lessee, in such form as may be reasonably requested by such Lessee, and such
Lessee shall pay any amounts due with respect thereto under such Ground Lease.
(b) Each Lessee shall, at such Lessee's sole cost and expense, obtain
all required governmental and regulatory approval and consents and in connection
therewith shall make such filings as required by Applicable Law; in the event
that Lessor is required by Applicable Law to take any action in connection with
such purchase and sale, the Lessees shall pay prior to transfer all reasonable
out-of-pocket costs incurred by Lessor in connection therewith. Without limiting
the foregoing, all costs incident to such conveyance, including, without
limitation, each Lessee's attorneys' fees, Lessor's attorneys' fees,
commissions, each Lessee's and Lessor's escrow fees, recording fees, title
insurance premiums and all applicable documentary transfer or other transfer
taxes and other taxes required to be paid in order to record the transfer
documents that might be imposed by reason of such conveyance and the delivery of
such deed shall be borne entirely by and paid by the Lessees.
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(c) Upon expiration or termination of this Lease resulting in
conveyance of Lessor's interest in the title to the Leased Properties to the
Lessees, there shall be no apportionment of rents (including, without
limitation, water rents and sewer rents), taxes, insurance, utility charges or
other charges payable with respect to the Leased Properties, all of such rents,
taxes, insurance, utility or other charges due and payable with respect to the
Leased Properties prior to termination being payable by the Lessees hereunder
and all due after such time being payable by the Lessees as the then owners of
the Leased Properties.
Section 14.6 Option to Remarket. Subject to the fulfillment of each of
the conditions set forth in this Section 14.6, the Lessees shall have the option
to market all of, but not less than all of, the Leased Properties for Lessor
(the "Remarketing Option").
The Lessees' effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions, the failure of any of which, unless waived in writing by
Lessor and the Lenders, shall render the Remarketing Option and the Lessees'
exercise thereof null and void, in which event, each Lessee shall be obligated
to perform its obligations under Section 14.2.
(a) Not later than six months prior to the Lease Termination Date, DAP
SUB shall give to Lessor and the Agent written notice of the Lessees' exercise
of the Remarketing Option.
(b) Not later than ten (10) Business Days prior to the Lease
Termination Date, each Lessee shall deliver to Lessor and the Agent an
environmental assessment of each Leased Property leased by it dated not later
than forty-five (45) days prior to the Lease Termination Date. Such
environmental assessment shall be prepared by an environmental consultant
selected by the related Lessee and reasonably satisfactory to the Required
Funding Parties, shall be in form, detail and substance reasonably satisfactory
to the Required Funding Parties, and shall otherwise indicate no degradation in
environmental conditions beyond those described in the related Environmental
Audit for which corrective action is required by Applicable Law and shall not
include a recommendation for further investigation to make such determination.
(c) On the date of DAP SUB's notice to Lessor and the Agent of the
Lessees' exercise of the Remarketing Option, each of the Construction Conditions
shall have been timely satisfied and no Event of Default or Potential Event of
Default shall exist, and thereafter, no Event of Default or Potential Event of
Default shall exist under this Lease.
(d) Each Lessee shall have completed in all material respects all
Alterations, restoration and rebuilding of the Leased Properties leased by it
pursuant to Sections 6.1, 6.2, 10.3 and 10.4 (as the case may be) and shall have
fulfilled in all material respects all of the conditions and requirements in
connection therewith pursuant to said Sections, in
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each case by the date on which Lessor and the Agent receive DAP SUB's notice of
the Lessees' exercise of the Remarketing Option (time being of the essence),
regardless of whether the same shall be within such Lessee's control.
(e) Upon request by the Agent, each Lessee shall promptly provide any
maintenance records relating to each Leased Property leased by it to Lessor, the
Agent and any potential purchaser, and shall otherwise do all things necessary
to deliver possession of such Leased Property to the potential purchaser at the
appropriate closing date. Each Lessee shall allow Lessor, the Agent and any
potential purchaser reasonable access during normal business hours to any Leased
Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the
Leased Properties leased by it in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each
Lessee will provide to the purchaser all customary "seller's" indemnities
requested by the potential purchaser (taking into account the location and
nature of the Leased Properties), representations and warranties regarding
title, absence of Liens (except Lessor Liens) and the condition of the Leased
Properties. Each Lessee shall fulfill all of the requirements set forth in
clause (b) of Section 14.5, and such requirements are incorporated herein by
reference. As to Lessor, any such sale shall be made on an "as is, with all
faults" basis without representation or warranty by Lessor, other than the
absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, each Lessee
shall pay directly, and not from the sale proceeds, all prorations, credits,
costs and expenses of the sale of the Leased Properties leased by it, whether
incurred by Lessor, any Lender, the Agent or such Lessee, including without
limitation, to the extent not paid by the purchaser, the cost of all title
insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's
and the Agent's attorneys' fees, such Lessee's attorneys' fees, commissions,
escrow fees, recording fees, and all applicable documentary and other transfer
taxes.
(i) The Lessees, jointly and severally, shall pay to the Agent on the
Lease Termination Date (or to such other Person as Agent shall notify Lessee in
writing, or in the case of Supplemental Rent, to the Person entitled thereto) an
amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid
Basic Rent and Supplemental Rent, and all other amounts hereunder which have
accrued prior to or as of such date, in the type of funds specified in Section
3.3 hereof.
If the Lessees have exercised the Remarketing Option, the following additional
provisions shall apply: During the period commencing on the date six months
prior to the scheduled expiration
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of the Lease Term (or on such earlier date as is designated by DAP SUB, which
earlier date may be no earlier than the date which is twelve months prior to the
scheduled expiration of the Lease Term), one or more of the Lessees shall, as
nonexclusive agent for Lessor, use commercially reasonable efforts to sell
Lessor's interest in the Leased Properties and will attempt to obtain the
highest purchase price therefor. All such marketing of the Leased Properties
shall be at the Lessees' sole expense. Lessee promptly shall submit all bids to
Lessor and the Agent and Lessor; the Agent will have the right to review the
same; and the Agent and Lessor will have the right to submit any one or more
bids. All bids shall be on an all-cash basis. In no event shall such bidder be a
Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must
specify the Lease Termination Date as the closing date. If, and only if, the
aggregate selling price (net of closing costs and prorations, as reasonably
estimated by the Agent) is less than the difference between the Lease Balance at
such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in
its sole and absolute discretion, by notice to DAP SUB, given within 30 days of
receipt of such offer, reject such offer to purchase, in which event the parties
will proceed according to the provisions of Section 14.7 hereof. If neither
Lessor nor the Agent rejects such purchase offer as provided above, the closing
of such purchase of the Leased Properties by such purchaser shall occur on the
Lease Termination Date, contemporaneously with the Lessees' surrender of the
Leased Properties in accordance with Section 14.8 hereof, and the gross proceeds
of the sale (i.e., without deduction for any marketing, closing or other costs,
prorations or commissions) shall be paid directly to the Agent (or Lessor if the
Funded Amounts have been fully paid); provided, however, that if the sum of the
gross proceeds from such sale plus the Recourse Deficiency Amount paid by the
Lessees on the Lease Termination Date pursuant to Section 14.6(i), minus any and
all reasonable costs and expenses (including broker fees, appraisal costs,
reasonable legal fees and transfer taxes) incurred by the Agent or Lessor in
connection with the marketing of the Leased Properties or the sale thereof
exceeds the Lease Balance as of such date, then the excess shall be paid to DAP
SUB on the Lease Termination Date. No Lessee shall have the right, power or
authority to bind Lessor in connection with any proposed sale of the Leased
Properties.
Section 14.7 Rejection of Sale. Notwithstanding anything contained
herein to the contrary, if Lessor or the Agent rejects the purchase offer for
the Leased Properties as provided in (and subject to the conditions set forth
in) Section 14.6, then (a) the Lessees, jointly and severally, shall pay to the
Agent the Recourse Deficiency Amount pursuant to Section 14.6(i), and (b) Lessor
shall retain title to the Leased Properties.
Section 14.8 Return of Leased Property. If Lessor retains title to any
Leased Property pursuant to Section 14.7 hereof, then each Lessee shall, on the
Lease Termination Date, and at its own expense, return possession of the Leased
Properties leased by it to Lessor for retention by Lessor or, if the Lessees
properly exercise the Remarketing Option and fulfill all of the conditions of
Section 14.6 hereof and neither Lessor nor the Agent rejects such purchase offer
pursuant to Section 14.6, then each Lessee shall, on such Lease Termination
Date, and at its own cost, transfer possession of the Leased Properties leased
by it to the independent purchaser
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thereof, in each case by surrendering the same into the possession of Lessor or
such purchaser, as the case may be, free and clear of all Liens other than
Lessor Liens, in as good condition as it was on the Completion Date therefor in
the case of new Construction, or the Funding Date (as modified by Alterations
permitted by this Lease), ordinary wear and tear excepted, and in compliance in
all material respects with Applicable Law. Each Lessee shall, on and within a
reasonable time before and after the Lease Termination Date, cooperate with
Lessor and the independent purchaser of any Leased Property leased by such
Lessee in order to facilitate the ownership and operation by such purchaser of
such Leased Property after the Lease Termination Date, which cooperation shall
include the following, all of which such Lessee shall do on or before the Lease
Termination Date or as soon thereafter as is reasonably practicable: providing
all books and records regarding the related Lessee's maintenance of such Leased
Property and all know-how, data and technical information relating thereto,
providing a copy of the Plans and Specifications within the possession of such
Lessee or DAP SUB, granting or assigning all licenses (to the extent assignable)
necessary for the operation and maintenance of such Leased Property, and
cooperating in seeking and obtaining all necessary Governmental Action. Each
Lessee shall have also paid the cost of all Alterations commenced prior to the
Lease Termination Date. The obligations of such Lessee under this Article XIV
shall survive the expiration or termination of this Lease.
Section 14.9 Renewal. Subject to the conditions set forth herein, DAP
SUB may, by written notice to Lessor and the Agent given not later than twelve
months and not earlier than sixteen months, prior to the then scheduled Lease
Termination Date, request to renew this Lease for five years, commencing on the
date following such Lease Termination Date, provided that in no event shall the
Lease Term exceed fifteen (15) years. No later than the date that is 45 days
after the date the request to renew has been delivered to each of Lessor and the
Agent, the Agent will notify DAP SUB whether or not Lessor and the Lenders
consent to such renewal request (which consent may be granted or denied in the
Lessor's and each Lender's sole discretion and may be conditioned on such
conditions precedent as may be specified by Lessor or such Lender). If the Agent
fails to respond in such time frame, such failure shall be deemed to be a
rejection of such request.
Section 14.10 Environmental Report. Upon termination of this Lease,
unless the Lessees have exercised the Remarketing Option and complied with
Section 14.6, each Lessee shall deliver, at the Lessees' expense, to Lessor and
the Agent an environmental assessment of each Leased Property leased by it at
any time during the Lease Term. Such environmental assessment shall be prepared
by an environmental consultant, and shall be in a form, reasonably satisfactory
to Lessor and the Agent.
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ARTICLE XV.
LESSEE'S EQUIPMENT
After any repossession of any Leased Property (whether or not this
Lease has been terminated), the related Lessee, at its expense and so long as
such removal of such trade fixture, personal property or equipment shall not
result in a violation of Applicable Law, shall, within a reasonable time after
such repossession or within ninety (90) days after such Lessee's receipt of
Lessor's written request (whichever shall first occur), remove all of such
Lessee's trade fixtures, personal property and equipment from such Leased
Property (to the extent that the same can be readily removed from such Leased
Property without causing material damage to such Leased Property); provided,
however, that such Lessee shall not remove any such trade fixtures, personal
property or equipment that has been financed by Lessor under the Operative
Documents or otherwise constituting Leased Property (or that constitutes a
replacement of such property). Any of a Lessee's trade fixtures, personal
property and equipment not so removed by such Lessee within such period shall be
considered abandoned by such Lessee, and title thereto shall without further act
vest in Lessor, and may be appropriated, sold, destroyed or otherwise disposed
of by Lessor without notice to any Lessee and without obligation to account
therefor and the related Lessee will pay Lessor, upon written demand, all
reasonable costs and expenses incurred by Lessor in removing, storing or
disposing of the same and all costs and expenses incurred by Lessor to repair
any damage to such Leased Property caused by such removal. Each Lessee will
immediately repair at its expense all damage to such Leased Property caused by
any such removal (unless such removal is effected by Lessor, in which event such
Lessee shall pay all reasonable costs and expenses incurred by Lessor for such
repairs). Lessor shall have no liability in exercising Lessor's rights under
this Article XV, nor shall Lessor be responsible for any loss of or damage to
any Lessee's personal property and equipment.
ARTICLE XVI.
RIGHT TO PERFORM FOR LESSEE
If any Lessee shall fail to perform or comply with any of its
agreements contained herein and either such failure shall continue for a period
of 10 or more days after notice to DAP SUB or to such Lessee by Lessor or the
Agent or such failure has resulted in immediate material danger to any Leased
Property or Lessor's or the Agent's interest therein, Lessor, upon reasonable
notice to DAP SUB or such Lessee, may perform or comply with such agreement, and
Lessor shall not thereby be deemed to have waived any default caused by such
failure, and the amount of such payment and the amount of the expenses of Lessor
(including actual and reasonable attorneys' fees and expenses) incurred in
connection with such payment or the performance of or compliance with such
agreement, as the case may be, shall be deemed Supplemental Rent, payable by the
related Lessee to Lessor within thirty (30) days after written demand therefor.
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ARTICLE XVII.
MISCELLANEOUS
Section 17.1 Reports. To the extent required under Applicable Law and
to the extent it is reasonably practical for a Lessee to do so, such Lessee
shall prepare and file in timely fashion, or, where such filing is required to
be made by Lessor or it is otherwise not reasonably practical for a Lessee to
make such filing, Lessee shall prepare and deliver to Lessor (with a copy to the
Agent) within a reasonable time prior to the date for filing and Lessor shall
file, any material reports with respect to the condition or operation of such
Leased Property that shall be required to be filed with any Governmental
Authority.
Section 17.2 Binding Effect; Successors and Assigns; Survival. The
terms and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and the Lessees, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of Lessor,
any Person to whom Lessor may transfer any Leased Property or any interest
therein in accordance with the provisions of the Operative Documents), and inure
to the benefit of their respective permitted successors and assigns, and the
rights granted hereunder to the Agent and the Lenders shall inure (subject to
such conditions as are contained herein) to the benefit of their respective
permitted successors and assigns. Each Lessee hereby acknowledges that Lessor
has assigned all of its right, title and interest to, in and under this Lease to
the Agent and the Lenders pursuant to the Loan Agreement and related Operative
Documents, and that all of Lessor's rights hereunder may be exercised by the
Agent.
Section 17.3 Quiet Enjoyment. Lessor covenants that it will not
interfere in the related Lessee's or any of its permitted sublessees' quiet
enjoyment of the Leased Properties in accordance with this Lease during the
Lease Term, so long as no Event of Default has occurred and is continuing. Such
right of quiet enjoyment is independent of, and shall not affect, Lessor's
rights otherwise to initiate legal action to enforce the obligations of the
Lessees under this Lease.
Section 17.4 Notices. Unless otherwise specified herein, all notices,
offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be in writing and
shall be deemed to have been given as set forth in Section 8.2 of the Master
Agreement. All such notices, offers, acceptances, rejections, consents,
requests, demands or other communications shall be addressed as follows or to
such other address as any of the parties hereto may designate by written notice:
If to Lessor: Atlantic Financial Group, Ltd.
0000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
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If to DAP SUB
or any other Lessee: Discount Auto Parts Distribution Center, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Facsimile: 863/284-2063
with a copy to: Trenam Xxxxxx
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile: 813/229-6553
If to Agent: SUNTRUST BANKS, INC.
000 Xxxxx Xxxxxx Xxxxxx
Mail Code 1106
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx
Facsimile: 407/237-4076
with a copy to: SunTrust Equitable Securities Corporation
000 Xxxxxxxxx Xxxxxx, 24th Floor
MC 3951
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
If to a Lender, to the address provided in the Master Agreement.
Section 17.5 Severability. Any provision of this Lease that shall be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and Lessee shall remain
liable to perform its obligations hereunder except to the extent of such
unenforceability. To the extent permitted by Applicable Law, each Lessee hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section 17.6 Amendment; Complete Agreements. Neither this Lease nor any
of the terms hereof may be terminated, amended, supplemented, waived or modified
orally, except by an instrument in writing signed by Lessor and DAP SUB in
accordance with the provisions of Section 8.4 of the Master Agreement. This
Lease, together with the applicable Lease
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Supplement and the other Operative Documents, is intended by the parties as a
final expression of their lease agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations and
representations between the parties having been incorporated herein and therein.
No course of prior dealings between the parties or their officers, employees,
agents or Affiliates shall be relevant or admissible to supplement, explain, or
vary any of the terms of this Lease or any other Operative Document. Acceptance
of, or acquiescence in, a course of performance rendered under this or any prior
agreement between the parties or their Affiliates shall not be relevant or
admissible to determine the meaning of any of the terms of this Lease or any
other Operative Document. No representations, undertakings, or agreements have
been made or relied upon in the making of this Lease other than those
specifically set forth in the Operative Documents.
Section 17.7 Construction. This Lease shall not be construed more
strictly against any one party, it being recognized that both of the parties
hereto have contributed substantially and materially to the preparation and
negotiation of this Lease.
Section 17.8 Headings. The Table of Contents and headings of the
various Articles and Sections of this Lease are for convenience of reference
only and shall not modify, define or limit any of the terms or provisions
hereof.
Section 17.9 Counterparts. This Lease may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.10 GOVERNING LAW. THIS LEASE SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
EXCEPT AS TO MATTERS RELATING TO THE CREATION OF THE LEASEHOLD OR MORTGAGE
ESTATES HEREUNDER, AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO,
WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATES IN WHICH SUCH ESTATES ARE LOCATED.
Section 17.11 Discharge of Lessee's Obligations by its Subsidiaries or
Affiliates. Lessor agrees that performance of any Lessee's obligations hereunder
by one or more of such Lessee's Subsidiaries or Affiliates shall constitute
performance by Lessee of such obligations to the same extent and with the same
effect hereunder as if such obligations were performed by such Lessee, but no
such performance shall excuse any Lessee from any obligation not performed by it
or on its behalf under the Operative Documents.
Section 17.12 Liability of Lessor Limited. Except as otherwise
expressly provided below in this Section 17.12, it is expressly understood and
agreed by and between each Lessee,
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Lessor and their respective successors and assigns that nothing herein contained
shall be construed as creating any liability of Lessor or any of its Affiliates
or any of their respective officers, directors, employees or agents,
individually or personally, for any failure to perform any covenant, either
express or implied, contained herein, all such liability (other than that
resulting from Lessor's gross negligence or willful misconduct, except to the
extent imputed to Lessor by virtue of any Lessee's action or failure to act), if
any, being expressly waived by each Lessee and by each and every Person now or
hereafter claiming by, through or under any Lessee, and that, so far as Lessor
or any of its Affiliates or any of their respective officers, directors,
employees or agents, individually or personally, is concerned, each Lessee and
any Person claiming by, through or under any Lessee shall look solely to the
right, title and interest of Lessor in and to the Leased Properties and any
proceeds from Lessor's sale or encumbrance thereof (provided, however, that no
Lessee shall be entitled to any double recovery) for the performance of any
obligation under this Lease and under the Operative Documents and the
satisfaction of any liability arising therefrom (other than that resulting from
Lessor's gross negligence or willful misconduct, except to the extent imputed to
Lessor by virtue of any Lessee's action or failure to act).
Section 17.13 Estoppel Certificates. Each party hereto agrees that at
any time and from time to time during the Lease Term, it will promptly, but in
no event later than thirty (30) days after request by the other party hereto,
execute, acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchaser has signed a commitment or letter of
intent to purchase any Leased Property or any part thereof or any Note),
assignee or mortgagee or third party designated by such other party, a
certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as
modified, and identifying the modification agreements); (b) the date to which
Basic Rent has been paid; (c) whether or not there is any existing default by
any Lessee in the payment of Basic Rent or any other sum of money hereunder, and
whether or not there is any other existing default by either party with respect
to which a notice of default has been served, and, if there is any such default,
specifying the nature and extent thereof; (d) whether or not, to the knowledge
of the signer, there are any setoffs, defenses or counterclaims against
enforcement of the obligations to be performed hereunder existing in favor of
the party executing such certificate and (e) other items that may be reasonably
requested; provided that no such certificate may be requested unless the
requesting party has a good faith reason for such request.
Section 17.14 No Joint Venture. Any intention to create a joint
venture, partnership or other fiduciary relationship between Lessor and any
Lessee is hereby expressly disclaimed.
Section 17.15 No Accord and Satisfaction. The acceptance by Lessor of
any sums from any Lessee (whether as Basic Rent or otherwise) in amounts which
are less than the amounts due and payable by the Lessees hereunder is not
intended, nor shall be construed, to constitute an accord and satisfaction of
any dispute between Lessor and any Lessee regarding sums due and payable by any
Lessee hereunder, unless Lessor specifically deems it as such in writing.
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Section 17.16 No Merger. In no event shall the leasehold interests,
estates or rights of any Lessee hereunder, or of the holder of any Notes secured
by a security interest in this Lease, merge with any interests, estates or
rights of Lessor in or to the Leased Properties, it being understood that such
leasehold interests, estates and rights of each Lessee hereunder, and of the
holder of any Notes secured by a security interest in this Lease, shall be
deemed to be separate and distinct from Lessor's interests, estates and rights
in or to the Leased Properties, notwithstanding that any such interests, estates
or rights shall at any time or times be held by or vested in the same person,
corporation or other entity.
Section 17.17 Survival. The obligations of the parties to be performed
under this Lease prior to the Lease Termination Date and the obligations of the
parties pursuant to Articles III, X, XI, XIII, Sections 14.2, 14.3, 14.4, 14.5,
14.8, Articles XV, and XVI, and Sections 17.10 and 17.12 shall survive the
expiration or termination of this Lease. The extension of any applicable statute
of limitations by Lessor, any Lessee, the Agent or any Indemnitee shall not
affect such survival.
Section 17.18 Chattel Paper. To the extent that this Lease constitutes
chattel paper (as such term is defined in the Uniform Commercial Code in any
applicable jurisdiction), no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the sole
original counterpart, which shall be identified as the original counterpart by
the receipt of the Agent.
Section 17.19 Time of Essence. Time is of the essence of this Lease.
Section 17.20 Recordation of Lease. Each Lessee will, at its expense,
cause this Lease or a memorandum of lease in form and substance reasonably
satisfactory to Lessor and such Lessee (if permitted by Applicable Law) to be
recorded in the proper office or offices in the States and the municipalities in
which the Land is located.
Section 17.21 Investment of Security Funds. The parties hereto agree
that any amounts not payable to a Lessee pursuant to any provision of Article
VIII, X or XIV or this Section 17.21 shall be held by the Agent (or Lessor if
the Loans have been fully paid) as security for the obligations of the Lessees
under this Lease and the Master Agreement and of Lessor under the Loan
Agreement. At such time as such amounts are payable to the Lessee, such amounts,
net of any amounts previously applied to the Lessees' obligations hereunder or
under the Master Agreement (which application is hereby agreed to by Lessee),
shall be paid to the related Lessee. Any such amounts which are held by the
Agent (or Lessor if the Loans have been fully paid) pending payment to a Lessee
shall until paid to such Lessee, as provided hereunder or until applied against
the Lessees' obligations herein and under the Master Agreement and distributed
as provided in the Loan Agreement or herein (after the Loan Agreement is no
longer in effect) in connection with any exercise of remedies hereunder, be
invested by the Agent or Lessor, as the case may be, as directed from time to
time in writing by Lessee (provided, however, if an Event
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of Default has occurred and is continuing it will be directed by the Agent or,
if the Loans have been fully paid, Lessor) and at the expense and risk of the
Lessees, in Permitted Investments. Any gain (including interest received)
realized as the result of any such investment (net of any fees, commissions and
other expenses, if any, incurred in connection with such investment) shall be
applied in the same manner as the principal invested. Lessee upon demand shall
pay to the Agent or Lessor, as appropriate, the amount of any loss incurred in
connection with all such investments and the liquidation thereof.
Section 17.22 Ground Leases. Each Lessee will, at its expense, timely
perform all of the obligations of Lessor, in its capacity as ground lessee,
under each Ground Lease and, if requested by Lessor shall provide satisfactory
evidence to Lessor of such performance.
Section 17.23 Land and Building. If any Building and the Land on which
such Building is located are subject to separate Lease Supplements, at any time
that the related Lessee exercises an option to purchase such Building or such
Land, or to renew this Lease with respect to such Building or such Land, or is
obligated to purchase such Building or such Land as a result of an Event of
Loss, an Event of Taking or an Event of Default, such purchase or renewal shall
be made simultaneously with respect to all of such Building and such Land.
Section 17.24 Joint and Several. Each obligation of each Lessee
hereunder shall be a joint and several obligation of all of the Lessees.
Section 17.25 Construction Land Interests. Notwithstanding any other
provision of this Lease or any of the Operative Documents, the following shall
apply with respect to any Construction Land Interest and take priority over any
other provision hereof or any of the Operative Documents from the date hereof
until the earlier of the Completion Date for such Leased Property or the
Construction Term Expiration Date:
(a) If the Completion Date for such Leased Property has not occurred
prior to the Construction Term Expiration Date, which failure is not waived by
the Lessor; or
(b) If the cost of the acquisition of Land and construction of the
Buildings exceeds the Construction Budget for such Leased Property which is not
accepted and waived by the Lessor; or
(c) Upon the occurrence of an Event of Default which is based upon the
existence of any mechanics, materialmen or similar lien based upon goods or
services provided to such Leased Property which is not a Permitted Lien; or
(d) Upon the occurrence of an Event of Default which is based upon a
casualty loss of all or substantially all of such Leased Property;
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which, in any event, is both (i) unrelated to any breach by any Lessee, the
Guarantor or the Construction Agent of any representation, warranty or
obligation under any Operative Document, (ii) such event or circumstances are
beyond the control of such Persons, and (iii) not caused by any fraud,
misrepresentation, misapplication of funds or malfeasance of any Lessee, the
Guarantor or the Construction Agent then, in any such event, the Construction
Agent shall immediately, at its option, either pay to Lessor the Construction
Failure Payment for such Leased Property or purchase such Leased Property
pursuant to the Construction Agency Agreement, whereupon this Lease shall
terminate with respect to such Leased Property.
Section 17.26 IDB Documentation. If any Leased Property is subject to
an IDB Lease, this Lease shall be deemed to be a sublease. Each Lessee hereby
agrees to perform all of its obligations and all obligations of Lessor under all
IDB Documentation related to any Leased Property. With respect to the
Mississippi Property, DAP SUB acknowledges that this Lease will be assigned to
the trustee for the holder of the Bonds issued in connection therewith, and that
certain of the payments of Basic Rent will be used to make payments of principal
and interest on such Bonds. In the event that a Lessee purchases any Leased
Property that is the subject of IDB Documentation, such Lessee shall prepay, or
cause to be prepaid, the Bonds related to such Leased Property or shall assume
all obligations of the Lessor related to such IDB Documentation and cause the
Lessor to be released therefrom pursuant to documentation reasonably
satisfactory to the Lessor.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have each caused this Lease
Agreement to be duly executed and delivered and attested by their respective
officers thereunto duly authorized as of the day and year first above written.
Witnessed: DISCOUNT AUTO PARTS DISTRIBUTION
CENTER, INC., as a Lessee
By:___________________________ By:_____________________________
Name:_____________________ Name:_______________________
Title:______________________
By:___________________________
Name:_____________________
LEASE
AGREEMENT
S-1
41
ATLANTIC FINANCIAL GROUP, LTD.,
as Lessor
By: Atlantic Financial Managers,
Inc., its General Partner
Witnessed:
By:_________________________ By:______________________________
Name:___________________ Name: Xxxxxxx Xxxxxxxxxx
Title: President
By:_________________________
Name:___________________
LEASE
AGREEMENT
S-2
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STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Agreement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ___ ____, this _____
day of __________, __________, by ___________, as _____________, of DISCOUNT
AUTO PARTS DISTRIBUTION CENTER, INC., a Mississippi corporation, on behalf of
the corporation.
[Notarial Seal] ______________________________
Notary Public
My commission expires: _______________
LEASE
AGREEMENT
N-1
43
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Agreement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ____ ____, this
_____ day of __________, _______________, by _____________________, as
____________________ of Atlantic Financial Group, Ltd., on behalf of such
partnership.
[Notarial Seal] ___________________________
Notary Public
My commission expires: _______________
LEASE
AGREEMENT
N-2
44
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
SUNTRUST BANK,
as the Agent
By:_____________________________
Name:_______________________
Title:______________________
LEASE
AGREEMENT
N-3
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Recording requested by EXHIBIT A TO
and when recorded mail to: THE LEASE
____________________________
____________________________
____________________________
____________________________
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE
THIS LEASE SUPPLEMENT NO. __ (this "Lease Supplement") dated as of [ ],
between ATLANTIC FINANCIAL GROUP, LTD., as lessor (the "Lessor"), and [DISCOUNT
AUTO PARTS DISTRIBUTION CENTER, INC., a Mississippi corporation,] as lessee (the
"Related Lessee").
WHEREAS Lessor is the owner of the Land described on Schedule I hereto
and wishes to lease the Land together with any Building and other improvements
thereon or which thereafter may be constructed thereon pursuant to the Lease to
Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions; Interpretation. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Master Lease Agreement,
dated as of May 30, 2000 (as amended and supplemented from time to time, the
"Lease"), among the Lessees named therein and Lessor; and the rules of
interpretation set forth in Appendix A to the Lease shall apply to this Lease
Supplement.
SECTION 2. The Properties. Attached hereto as Schedule I is the
description of certain Land (the "Subject Property"). Effective upon the
execution and delivery of this Lease Supplement by Lessor and Lessee, such Land,
together with any Building and other improvements thereon or which thereafter
may be constructed thereon shall be subject to the terms and provisions of the
Lease and Lessor hereby grants, conveys, transfers and assigns to the Related
Lessee those interests, rights, titles, estates, powers and privileges provided
for in the Lease with respect to the Subject Property.
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SECTION 3. Amendments to Lease with Respect to Subject Property.
Effective upon the execution and delivery of this Lease Supplement by Lessor and
the Related Lessee, the following terms and provisions shall apply to the Lease
with respect to the Subject Property:
[Insert Applicable Sections per Local Law
as contemplated by the Master Agreement]
SECTION 4. Ratification; Incorporation. Except as specifically modified
hereby, the terms and provisions of the Lease are hereby ratified and confirmed
and remain in full force and effect. The terms of the Lease (as amended by this
Lease Supplement) are by this reference incorporated herein and made a part
hereof.
SECTION 5. Original Lease Supplement. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA, BUT EXCLUDING
ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES OF SUCH STATE, EXCEPT AS TO
MATTERS RELATING TO THE CREATION OF THE LEASEHOLD AND MORTGAGE ESTATES
HEREUNDER, AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO, WHICH
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE IN
WHICH SUCH ESTATES ARE LOCATED.
SECTION 7. Counterpart Execution. This Lease Supplement may be executed
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
Witnessed: ATLANTIC FINANCIAL GROUP, LTD.,
as the Lessor
By:_____________________________ By: Atlantic Financial Managers,
Name: Inc., its General Partner
By:_____________________________ By:_______________________________
Name: Name:
Title:
Witnessed: [DISCOUNT AUTO PARTS DISTRIBUTION,
CENTER, INC.], as Related Lessee
By:_____________________________ By:_______________________________
Name: Name:
Title:
By:_____________________________
Name:
X-0
00
XXXXX OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ____ ____, this
_____ day of __________, _______________, by _____________________, as
____________________ of Atlantic Financial Group, Ltd., on behalf of such
partnership.
[Notarial Seal] ___________________________
Notary Public
My commission expires:_______________
N-1
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STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ___ ____, this _____
day of __________, __________, by ___________, as _____________, of [Discount
Auto Parts Distribution Center, Inc., a Mississippi] corporation, on behalf of
the corporation.
[Notarial Seal] ______________________________
Notary Public
My commission expires:________________
N-2
