Exhibit 10.39
[SECOND][THIRD] AMENDMENT TO MASTER LEASE
THIS [SECOND][THIRD] AMENDMENT TO MASTER LEASE (this "Amendment") is
made as of December ____, 2001 by and between DAPPER PROPERTIES [I][II][III],
LLC, a Delaware limited liability company ("Lessor"), whose address is c/o U.S.
Realty Advisors, LLC, 1370 Avenue of the Americas, New York, New York 10019, and
DISCOUNT AUTO PARTS, INC., a Florida corporation ("Lessee"), whose address is
c/o Advance Stores Company, Incorporated, 5673 Airport Road, Roanoke, Virginia
24012.
PRELIMINARY STATEMENTS
Lessor and Lessee entered into that certain master lease dated as of
February 27, 2001, as amended by that certain first amendment to master lease
dated as of _________, 2001[ and by that certain second amendment to master
lease dated as of November 28, 2001] (collectively, the "Master Lease"), whereby
Lessor has leased to Lessee, and Lessee has rented and leased from Lessor, on
and subject to the terms, provisions and conditions of the Master Lease, certain
properties identified in the Master Lease, including, without limitation, the
real property and improvements described by FFC No., Unit No. and address on the
attached Exhibit 1 (the "Replaced Properties"). A duplicate original Memorandum
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of Master Lease with respect to the Replaced Properties was recorded in the
applicable real property records for each Property. Initially capitalized terms
not otherwise defined in this Amendment shall have the meanings set forth in the
Master Lease.
Lessor, Lessee, GE Capital Franchise Finance Corporation, a Delaware
corporation ("FFC"), Autopar Remainder [I][II][III], LLC, a Delaware limited
liability company ("Remainderman")[, Washington Mutual Bank, FA ("WaMu")] and
certain other parties have entered into that certain Substitution Agreement
dated as of November 28, 2001, as amended by that certain First Amendment to
Substitution Agreement dated as of even date herewith (collectively, the
"Substitution Agreement"). Pursuant to the Substitution Agreement, Lessor and
Lessee have agreed to amend the Master Lease as set forth in this Amendment,
which amendment shall include, without limitation, the substitution of that
certain real property and improvements described by FFC No., Unit No. and
address on the attached Exhibit 2 (the "Substitute Properties") for the Replaced
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Properties.
AGREEMENT
1. Amendment. From and after the date of this Amendment,
(a) The Master Lease is amended to remove from the definition of
"Properties" the Replaced Properties. The Replaced Properties
shall no longer be included within the meaning of the term
"Properties" as defined and used in the Master Lease and the
other Sale-Leaseback Documents. Without limiting the
generality of the preceding sentence, the Replaced Properties
shall no longer be included within the Aggregate Fixed Charge
Coverage Ratio requirement set forth in the Master Lease.
Notwithstanding anything to the contrary set forth in any of
the Sale-Leaseback Documents, the Master Lease and this
Amendment, this Amendment shall not limit any liability or
obligation of Lessee which has accrued prior to the date of
this Amendment with respect to the Replaced Properties under
any provision of the Master Lease and/or the other
Sale-Leaseback Documents, including, without limitation, any
indemnification and/or hold harmless provisions.
(b) The Master Lease is amended to include within the definition
of "Properties" the Substitute Properties, all rights,
privileges and appurtenances associated therewith, and all
buildings, fixtures and other improvements now or hereafter
located thereon (whether or not affixed to such real estate).
The Substitute Properties shall be included within the meaning
of the term "Properties" as defined and used in the Master
Lease and the other Sale-Leaseback Documents. Without limiting
the generality of the preceding sentence, the Substitute
Properties shall be included within the Aggregate Fixed Charge
Coverage Ratio requirement set forth in the Master Lease.
(c) The Dapper [I][II][III] Substitute Acknowledgements (as
defined in the Substitution Agreement) shall be included
within the meaning of the term "Acknowledgement" as defined
and used in the Master Lease and the other Sale-Leaseback
Documents, and each duplicate original Acknowledgement
relating to a Replaced Property shall no longer be included
within the meaning of the term "Acknowledgement" as defined
and used in the Master Lease and the other Sale-Leaseback
Documents.
(d) The Dapper [I][II][III] Substitute Memorandum (as defined in
the Substitution Agreement) shall be included within the
meaning of the term "Memorandum" as defined and used in the
Master Lease and the other Sale-Leaseback Documents, and each
duplicate original Memorandum relating to a Replaced Property
shall no longer be included within the meaning of the term
"Memorandum" as defined and used in the Master Lease and the
other Sale-Leaseback Documents.
(e) The Dapper [I][II][III] Substitute Mortgages (as defined in
the Substitution Agreement) shall be included within the
meaning of the term "Mortgages" as defined and used in the
Master Lease and the other Sale-Leaseback Documents, and each
Mortgage relating to a Replaced Property shall no longer be
included
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within the meaning of the term "Mortgages" as defined and used
in the Master Lease and the other Sale-Leaseback Documents.
(f) The Transaction Documents (as defined in the Substitution
Agreement) shall be included within the meaning of the term
"Sale-Leaseback Documents" as defined and used in the Master
Lease.
(g) Exhibit A of the Master Lease is amended to (i) remove from
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such Exhibit A the properties identified on the attached
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Exhibit 1, and (ii) include within such Exhibit A the
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properties identified on the attached Exhibit 2.
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(h) Exhibit A-1 of the Master Lease is amended to (i) remove from
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such Exhibit A-1 the legal descriptions attached hereto as
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Exhibit 1-A, and (ii) include within such Exhibit A-1 the
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legal descriptions attached here to as Exhibit 2-A.
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(i) The representations and warranties set forth in Section 7 of
the Master Lease are deemed to have been made as of the date
of this Amendment.
(j) The following sentence is added to the end of Section 57.B(ii)
of the Master Lease:
In addition to the foregoing, Lessee shall pay any
and all ongoing, fees, taxes, charges, costs and expenses, on
an after tax basis, with respect to the Substitute Properties,
including, without limitation, state and local transfer taxes
associated with the sale of the Substitute Properties by
Lessor and/or Remainderman, costs and expenses associated with
qualifying Lessor and/or Remainderman in states where Lessor
and/or Remainderman would not have otherwise had to qualify
but for the substitution and keeping such entities qualified
and in good standing in such states, any and all of such
entities' franchise taxes, income, excise, sales and/or use
taxes, if any, business and/or business privilege taxes, if
any, and any taxes, fees or charges of a similar nature;
provided, however, with respect to the payment by Lessee of
the entities' franchise taxes, income, business and/or
business privilege taxes and other taxes of a similar nature,
the amount Lessee is required to pay in respect of such taxes
shall be reduced by the amount of taxes in the aggregate the
entities would otherwise have been obligated to pay under the
terms and conditions of this Lease with respect to the
property being replaced had such substitution not occurred.
2. Fees and Expenses. Lessor shall be solely responsible for the
payment of all fees and expenses incurred by Lender and Lessor as a result of
the execution, delivery and performance by Lessor and Lessee of this Amendment,
including, without limitation, Lessor's and Lender's reasonable attorneys' fees
and expenses, all stamp taxes, title search costs, site inspection costs,
construction consulting fees, title insurance premiums and escrow, filing and
recording fees.
3. Representations and Warranties. Each of Lessor and Lessee represents
and warrants to the other that: (i) such entity has been duly formed, is validly
existing and has taken
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all necessary action to authorize the execution, delivery and performance by
such entity of this Amendment; (ii) the person who has executed this Amendment
on behalf of such entity is duly authorized so to do; (iii) upon execution by
such entity, this Amendment shall constitute the legal, valid and binding
obligation of such entity, enforceable against such entity in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, liquidation, reorganization, moratorium and other laws
affecting the rights of creditors generally and subject to the exercise of
judicial discretion in accordance with general principles of equity; and (iv)
the execution, delivery and performance of this Amendment will not result in any
breach or default under any document, instrument or agreement to which such
entity is a party or by which such entity is subject or bound.
4. Ratification. Except as otherwise set forth in this Amendment, the
Master Lease and the other Sale-Leaseback Documents are unmodified and in full
force and effect. Lessee's recourse under this Amendment and the Lease shall be,
and remain, limited in the same manner as provided in Section 36 of the Lease
and such Section is incorporated herein by reference as if more fully set forth
herein.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original.
6. Joinders. [Wamu][FFC] and Remainderman hereby join in the execution
of this Amendment to acknowledge and consent to this Amendment.
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Lessor and Lessee have executed this Amendment as of the date first set
forth above.
Signed and Acknowledged LESSOR
In the Presence of:
DAPPER PROPERTIES [I][II][III], LLC, a
Delaware limited liability company
By Dapper Equity [I][II][III], LLC, a
Delaware limited liability company,
its member manager
By
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Printed Name
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Its
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Printed Name:
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Printed Name:
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LESSEE:
DISCOUNT AUTO PARTS, INC., a Florida
corporation
By
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Printed Name
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Its
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Printed Name:
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Printed Name:
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Lessee's Tax Identification Number
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AGREED TO BY:
[WASHINGTON MUTUAL BANK, FA
By: GE Capital Franchise Finance Corporation,
a Delaware corporation, successor by
merger to Franchise Finance Corporation of
America, as Servicer pursuant to that
certain Amended and Restated Servicing
Agreement dated as of February 28, 2000
between Franchise Finance Corporation of
America and Washington Mutual Bank, FA
By
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Printed Name
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Its
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[GE CAPITAL FRANCHISE FINANCE CORPORATION, a
Delaware corporation, successor by merger to
FFCA Acquisition Corporation, a Delaware
corporation
By
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Name
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Title
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AUTOPAR REMAINDER [I][II][III], LLC, a
Delaware limited liability company
By: Autopar Remeq [I][II][III], LLC, a
Delaware limited liability company,
its member manager
By
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Printed Name
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Its
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STATE OF )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me on December , 2001 by
, of Dapper Equity [I][II][III], LLC, a Delaware
limited liability company, member manager of Dapper Properties [I][II][III],
LLC, a Delaware limited liability company, on behalf of the limited liability
company.
__________________________________________
Notary Public
My Commission Expires:
________________________________
STATE OF )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me on December , 2001 by
, of Discount Auto Parts, Inc., a Florida
corporation, on behalf of the corporation.
__________________________________________
Notary Public
My Commission Expires:
________________________________
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on December , 2001
by __________________, _________________ of GE Capital Franchise Finance
Corporation, a Delaware corporation, successor by merger to [FFCA Acquisition
Corporation, a Delaware corporation] [Franchise Finance Corporation of America,
as Servicer pursuant to that certain Amended and Restated Servicing Agreement
dated as of February 28, 2000 between Franchise Finance Corporation of America
and Washington Mutual Bank, FA, on behalf of Washington Mutual Bank, FA,] on
behalf of the corporation.
_________________________________________
Notary Public
My Commission Expires:
_____________________________
STATE OF _____________________ )
) SS.
COUNTY OF ____________________ )
The foregoing instrument was acknowledged before me on December _____,
2001 by _____________, _____________ of Autopar Remeq [I][II][III], LLC, a
Delaware limited liability company, member manager of Autopar Remainder
[I][II][III], LLC, a Delaware limited liability company, on behalf of the
limited liability company.
_________________________________________
Notary Public
My Commission Expires:
______________________________
EXHIBIT 1
REPLACED PROPERTIES
EXHIBIT 1-A
LEGAL DESCRIPTIONS OF REPLACED PROPERTIES
EXHIBIT 2
SUBSTITUTE PROPERTIES
EXHIBIT 2-A
LEGAL DESCRIPTIONS OF SUBSTITUTE PROPERTIES