<PAGE> 1
EXHIBIT 10.23
This instrument was prepared by and upon
recordation should be returned to:
Rex A. Palmer, Esq.
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
Indexing Instructions: S 1/2 NE 1/4; N 1/2 SE 1/4; Section 21, T1N, R2W, Copiah
County, Mississippi
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
MISSISSIPPI LEASE SUPPLEMENT
AND MEMORANDUM OF LEASE
THIS MISSISSIPPI LEASE SUPPLEMENT (this "Lease Supplement") signed on
the dates set forth in the respective acknowledgments hereto and effective as of
May , 2000 between ATLANTIC FINANCIAL GROUP, LTD., as the lessor (the "Lessor"),
a Texas limited partnership with an address at 1000 Ballpark Way, Suite 304,
Arlington, Texas 76011, and DISCOUNT AUTO PARTS DISTRIBUTION CENTER, INC., a
Mississippi corporation with an address at 4900 Frontage Road South, Lakeland,
Florida 33815, as lessee (the "Lessee").
WHEREAS Lessor is the owner of the Land described on Exhibit A 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 Lease Agreement, dated
as of even date herewith, between Lessee and Lessor; and the rules of
interpretation set forth in Appendix A to the Lease, a copy of which Appendix A
is attached hereto, shall apply to this Lease Supplement.
Indexing instruction: All located in Copiah County, Section 21, Township 1N,
Range 2W:
<PAGE> 2
SECTION 2. The Properties. Attached hereto as Exhibit A is the
description of certain Land. 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
pursuant to the Lease (collectively, the "Subject Property") shall be subject to
the terms and provisions of the Lease and Lessor hereby grants, conveys,
transfers and assigns to Lessee those interests, rights, titles, estates, powers
and privileges provided for in the Lease with respect to the Subject Property.
SECTION 3. Amendments to Lease with Respect to Subject Property.
Effective upon the execution and delivery of this Lease Supplement by Lessor and
Lessee, the following terms and provisions shall apply to the Lease with respect
to the Subject Property:
Pursuant to Article XI of the Lease, the Lessor and Lessee intend that
for all purposes other than accounting purposes that the Lease be and the same
is hereby agreed to be a Deed of Trust.
Said Deed of Trust is made and entered into this day by and between
Lessee, as Grantor (herein designated as "Debtor"), and REX A. PALMER, an
individual residing in Illinois, as Trustee, and Lessor, as Beneficiary (herein
designated as "Secured Party"), WITNESSETH:
WHEREAS, Debtor is indebted and obligated to Secured Party as evidenced
by the Lease of even date herewith between Debtor, as lessee, and Secured Party,
as lessor, providing for payment of the Base Rent, Supplemental Rent and other
obligations described therein plus attorney's fees for collection if not paid
according to the terms thereof and being due and payable as set forth in the
Lease and other Operative Documents; and
WHEREAS, Debtor desires to secure prompt payment of Base Rent,
Supplemental Rent and all of its other obligations under the Lease and the other
Operative Documents (all being herein referred to as the "indebtedness"), which
indebtedness is due and payable in full if not sooner paid on the date which is
five (5) years after the date hereof subject to extension for up to two 5 year
renewal periods pursuant to Section 14.9 of the Lease.
NOW THEREFORE, In consideration of the indebtedness herein recited,
Debtor hereby sells, conveys and warrants unto Trustee and grants to the Secured
Party a security interest in the land described below situated in the County of
Copiah, State of Mississippi.
See attached legal description.
together with the Building and all improvements and appurtenances now or
hereafter erected on, and all fixtures of any and every description now or
hereafter attached to, said land and also including all rents, income and
proceeds (including without limitation, insurance proceeds and condemnation
awards) of the foregoing (all being herein referred to as the "Property").
2
<PAGE> 3
THIS CONVEYANCE, HOWEVER, IS IN TRUST (subject to the covenants,
stipulations and conditions below), to secure prompt payment of all existing and
future indebtedness due by Debtor to Secured Party under the provisions of this
Deed of Trust. If Debtor shall pay said indebtedness promptly when due and shall
perform all covenants made by Debtor, then this conveyance shall be void and of
no effect. Upon the occurrence of a Lease Event of Default, then, in that event,
the entire indebtedness, together with all interest accrued thereon, shall, at
the option of Secured Party, be and become at once due and payable without
notice to Debtor, and Trustee shall, at the request of Secured Party, sell the
Property conveyed, or a sufficiency thereof, to satisfy the indebtedness at
public outcry to the highest bidder for cash. "Cash" may include wire transfers,
certified checks, or other forms of immediate payment satisfactory to Trustee
and Secured Party. Sale of the Property shall be advertised for three
consecutive weeks preceding the sale in a newspaper published in the county
where the Property is situated, or if none is so published, then in some
newspaper having a general circulation therein, and by posting a notice for the
same time at the courthouse of the same county. The notice and advertisement
shall disclose the names of the original debtors in this Deed of Trust, Debtor
waives the provisions of Mississippi Constitution Section 111 and Section
89-1-55 of the Mississippi Code of 1972 as amended, if any, as far as this
section restricts the right of Trustee to offer at sale more than 160 acres at a
time, and Trustee may offer the property herein conveyed as a whole, regardless
of how it is described.
If the Property is situated in two or more counties, or in two judicial
districts of the same county, Trustee shall have full power to select in which
county, or judicial district, the sale of the property is to be made, newspaper
advertisement published and notice of sale posted, and Trustee's selection shall
be binding upon Debtor and Secured Party. Should Secured Party be a corporation
or an unincorporated association, then any officer thereof may declare Debtor to
be in default and request Trustee to sell the Property, Secured Party shall have
the same right to purchase the property at the foreclosure sale as would a
purchaser who is not a Party to this Deed of Trust. The Beneficiary or any owner
or holder of the Obligations secured hereby shall not be required to bid cash to
the extent of the Obligations secured hereby.
From the proceeds of the sale Trustee shall first pay all costs of the
sale including reasonable compensation to Trustee; then the indebtedness due
Secured Party by Debtor as provided in the Lease, including accrued interest and
attorney's fees due for collection of the debt; and then, lastly, any balance
remaining to Debtor.
IT IS AGREED that this conveyance is made subject to the covenants,
stipulations and conditions set forth below which shall be binding upon all
parties hereto:
A. This Deed of Trust shall also secure all future and additional
advances which Secured Party may make to Debtor from time to time pursuant to
the Operative Documents upon the security herein conveyed. Such advances shall
be on such terms as to amount, maturity and rate of interest as may be mutually
agreeable to both Debtor and Secured Party. Any such advance may be made to any
one of the Debtors should there be more than one, and if so made,
3
<PAGE> 4
shall be secured by this Deed of Trust to the same extent as if made to all
Debtors. However, on all transactions covered by Truth in Lending, when Debtor's
notes, debts, obligations and liabilities to Secured Party (in any form) arising
out of existing, concurrent and future credit granted by Secured Party are
secured by this Deed of Trust, it will be so indicated on the document that
evidences the transaction. Therefore this Deed of Trust will in no way secure
any form of credit governed by the Truth in Lending Act unless the document
which evidences the credit transaction indicates by proper disclosure that the
transaction is secured by this Deed of Trust.
B. Secured Party may at any time, without giving formal notice to the
original or any successor Trustee, or to Debtor, and without regard to the
willingness or inability of any such Trustee to execute this trust, appoint
another person or succession of persons to act as Trustee, and such appointee in
the execution of this trust shall have all the powers vested in and obligations
imposed upon Trustee. Should Secured Party be a corporation or an unincorporated
association, then any officer, assistant officer, agent or attorney-in-fact
thereof may make such appointment.
C. (i) If an Event of Default has occurred and is continuing:
(a) the Trustee, in addition to all other remedies available at law or
in equity, shall have the right forthwith to enter upon and take possession of
the Trust Property, and to let the Trust Property and receive the rents, issues
and profits thereof, to make repairs and to apply said rentals and profits,
after payment of all necessary or proper charges and expenses, on account of the
amounts hereby secured; and
(b) the Trustee, shall, as a matter of right, at the option of the
Secured Party, be entitled to the appointment of a receiver for the Trust
Property, and the Debtor hereby consents to such appointment and waives notice
of any application therefor.
(ii) The Debtor hereby waives the benefit of all appraisement,
valuation, stay, extension, reinstatement and redemption laws now or
hereafter in force and all rights of marshalling in the event of any
sale of the Trust Property or any interest therein.
D. The Debtor, the Trustee and the Secured Party agree, to the extent
permitted by law, that this Deed of Trust upon recording or registration in the
real estate records of the proper office shall constitute a financing statement
filed as a "fixture filing" within the meaning of Sections 9-313 and 9-402 of
the Uniform Commercial Code.
E. Each privilege, option or remedy provided in this Deed of Trust to
Secured Party is distinct from every other privilege, option or remedy contained
herein or afforded by law or equity, and may be exercised independently,
concurrently, cumulatively or successively by Secured Party or by any other
owner or holder of the indebtedness. Forbearance by Secured Party in exercising
any privilege, option or remedy after the right to do so has accrued shall not
4
<PAGE> 5
constitute a waiver of Secured Party's right to exercise such privilege, option
or remedy in event of any subsequent accrual.
F. The words "Debtor" or "Secured Party" shall each embrace one
individual, two or more individuals, a corporation, a partnership or an
unincorporated association, depending on the recital herein of the parties to
this Deed of Trust. The covenants herein contained shall bind, and the benefits
herein provided shall inure to, the respective legal or personal
representatives, successors or assigns of the parties hereto. If there be more
than one Debtor, then Debtor's obligations shall be joint and several. Whenever
in this Deed of Trust the context so requires, the singular shall include the
plural and the plural the singular. Notices required herein from Secured Party
to Debtor shall be sent to the address of Debtor shown in the Deed of Trust.
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 ESTATE AND/OR SECURITY
INTEREST 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 ESTATE IS LOCATED.
SECTION 7. Interest Conveyed to Lessee. Lessor and Lessee intend that
the Lease be treated, for accounting purposes, as an operating lease. For all
other purposes, Lessee and Lessor intend that the transaction represented by the
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 deed of
trust and security agreement, encumbering the Leased Property, and that Lessee,
as grantor, hereby grants to Lessor, as mortgagee or beneficiary and secured
party, or any successor thereto a security interest in and to the Leased
Property (and to Rex A. Palmer, as trustee, as provided above), a first and
paramount Lien on each Leased Property, (ii) that Lessor shall have, as a
5
<PAGE> 6
result of such determination, all of the rights, powers and remedies of a
mortgagee or deed of trust beneficiary 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 or deed of trust shall
be the effective date of this Lease, (iv) that the recording of this Lease
Supplement shall be deemed to be the recording of such deed of trust, and (v)
that the obligations secured by such mortgage 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 Lessee hereunder and under the Operative
Documents.
SECTION 8. 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.
6
<PAGE> 7
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.
ATLANTIC FINANCIAL GROUP, LTD.,
as the Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By:_______________________________
Name:_____________________________
Title:____________________________
S-1
<PAGE> 8
DISCOUNT AUTO PARTS DISTRIBUTION
CENTER, INC., as the Lessee
By:_______________________________
Name:_____________________________
Title:____________________________
S-2
<PAGE> 9
STATE OF ______________________
COUNTY OF _____________________
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the
said county and state, on this day of ____________________________, 2000, within
my jurisdiction, the within named _________________________________________, who
acknowledged that ____ he is _________________________ of ATLANTIC FINANCIAL
MANAGERS, INC., a Texas corporation and general partner of ATLANTIC FINANCIAL
GROUP, LTD., a Texas limited partnership, and that for and on behalf of Atlantic
Financial Managers, Inc., as general partner of Atlantic Financial Group, Ltd.,
and as the act and deed of Atlantic Financial Managers, Inc., as general partner
of Atlantic Financial Group, Ltd., and as the act and deed of Atlantic Financial
Group, Ltd., he executed the above and foregoing instrument, after first having
been duly authorized by said corporation and said limited partnership so to do.
_____________________________
NOTARY PUBLIC
My Commission Expires:
______________________________
(Notary Seal Required)
N-1
<PAGE> 10
ACKNOWLEDGMENT BY NOTARY
STATE OF ______________________ )
)
COUNTY OF _____________________ )
PERSONALLY appeared before me, the undersigned authority in and for the
county and state aforesaid, on this ___ day of _________________________, 2000,
within my jurisdiction, the within named __________________________, who
acknowledged that he is the __________ of DISCOUNT AUTO PARTS DISTRIBUTION
CENTER, INC., a Mississippi corporation, and for and on behalf of the said
corporation, and as its act and deed he executed the above and foregoing
instrument, after first having been duly authorized by said corporation so to
do.
___________________________
NOTARY PUBLIC
My Commission Expires:
______________________________
N-2
<PAGE> 11
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as of the date hereof.
SUNTRUST BANK, as the Agent
By:______________________________
Name:________________________
Title: ______________________
S-3
<PAGE> 12
EXHIBIT A
Legal Description
This parcel contains 76.909 acres situated in the S 1/2 of the NE 1/4 and the N
1/2 of the SE 1/4 of Section 21, Township 1 North, Range 2 West, Copiah County,
Mississippi, and being further described as follows to-wit:
Commencing at the iron pin found marking the SW corner of said Section 21; run
thence, North 00 degrees 26 minutes 49 seconds West for 2661.85 feet to the axle
found marking the NW corner of the SW 1/4 of said Section 21; run thence, North
73 degrees 49 minutes 16 seconds East for 3393.90 feet to the concrete monument
found marking P.C. Station 824+56.27 on the east line of Interstate 55, as
recorded in Deed Book 7K at page 311 and the POINT OF BEGINNING; run thence,
Northerly along a curve to the right in the east line of said Interstate 55 for
100.18 feet, said curve having the following characteristics:
A central angle of 00 degrees 58 minutes 43 seconds, a degree of curvature of 00
degrees 40 minutes 30 seconds, a radius of 8488.37 feet; Run thence, leaving the
east line of said Interstate 55, South 75 degrees 13 minutes 13 seconds East for
1280.12 feet to a set iron pin; run thence, South 53 degrees 38 minutes 20
seconds East for 551.47 feet to an iron pin on the west line of Old U.S. Highway
51; run thence, along the west line of said highway for the following courses;
South 13 degrees 15 minutes 01 seconds West for 741.59 feet to the remains of
the concrete marker found marking P.T. Station 781+30.2; run thence, Southerly
along a curve to the right in the west line of said highway for 707.10 feet to
the iron pin marking the intersection of west line of said highway with the
north line of that county road recorded in Deed Book 8C at Page 546 and in Deed
Book 7K at Page 313, said iron pin also being the most northerly corner of
Parcel 2 recorded in Deed Book 7P at Page 637, said curve having the following
characteristics:
A central angle of 3 degrees 00 minutes 00 seconds, a degree of curvature of 00
degrees 20 minutes 04 seconds and a radius of 17138.76 feet;
Run thence, leaving the west line of said highway and run along the north line
of said county road for the following courses:
South 40 degrees 40 minutes 50 seconds West for 262.05 feet to a found concrete
marker; run thence, South 88 degrees 15 minutes 17 seconds West for 1244.69 feet
to a found concrete marker; run thence, North 02 degrees 45 minutes 03 seconds
West for 15.00 feet to an iron pin set at the remains of a concrete marker; run
thence, South 88 degrees 12 minutes 27 seconds West for 158.44 feet to the
concrete marker found marking the intersection of the north line of said county
road with the east line of Interstate 55;
Run thence, leaving the north line of said county road, a run along the east
line of Interstate 55, North 05 degrees 46 minutes 57 seconds East for 2199.82
feet back to the concrete marker found marking the POINT OF BEGINNING.
