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Exhibit 10.6
AMENDED AND RESTATED CONSTRUCTION AGENCY AGREEMENT
dated as of June 26, 2003
between
SUNTRUST EQUITY FUNDING, LLC
and
CONCORD EFS, INC.,
as Construction Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................1
1.1 Defined Terms........................................................1
ARTICLE II APPOINTMENT OF CONSTRUCTION AGENT.................................2
2.1 Appointment..........................................................2
2.2 Acceptance; Construction.............................................2
2.3 Commencement of Construction.........................................2
2.4 Supplements to this Agreement........................................2
2.5 Term.................................................................3
2.6 Identification of Properties; Construction Documents.................3
2.7 Scope of Authority...................................................3
2.8 Covenants of the Construction Agent..................................4
2.9 Insurance............................................................5
ARTICLE III THE BUILDINGS....................................................11
3.1 Amendments; Modifications...........................................11
3.2 Casualty and Condemnation...........................................11
3.3 Indemnity...........................................................11
3.4 Construction Force Majeure Events...................................12
ARTICLE IV PAYMENT OF FUNDS.................................................13
4.1 Funding of Property Acquisition Costs and Property Buildings
Costs...............................................................13
ARTICLE V CONSTRUCTION AGENCY EVENTS OF DEFAULT............................13
5.1 Construction Agency Events of Default...............................13
5.2 Damages.............................................................14
5.3 Remedies; Remedies Cumulative.......................................14
5.4 Limitation on Construction Agent's Recourse Liability...............16
5.5 Construction Agent's Right to Purchase..............................16
5.6 Construction Return Procedures......................................16
ARTICLE VI NO CONSTRUCTION AGENCY FEE.......................................18
6.1 Lease as Fulfillment of Lessor's Obligations........................18
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VII LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS.....................18
7.1 Exercise of the Lessor's Rights.....................................18
7.2 Lessor's Right to Cure Construction Agent's Defaults................18
ARTICLE VIII MISCELLANEOUS....................................................18
8.1 Successors and Assigns..............................................18
8.2 Notices.............................................................18
8.3 GOVERNING LAW.......................................................19
8.4 Amendments and Waivers..............................................19
8.5 Counterparts........................................................19
8.6 Severability........................................................19
8.7 Headings and Table of Contents......................................19
8.8 Jurisdiction; Waivers...............................................19
EXHIBITS
Exhibit A Form of Supplement to Construction Agency Agreement
-ii-
AMENDED AND RESTATED CONSTRUCTION AGENCY AGREEMENT
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AMENDED AND RESTATED CONSTRUCTION AGENCY AGREEMENT, dated as of June 26,
2003, but effective on the Effective Date (as further amended, supplemented or
otherwise modified from time to time, this "Agreement"), between SUNTRUST EQUITY
FUNDING, LLC, a Delaware limited liability company (the "Lessor"), and CONCORD
EFS, INC., a Delaware corporation ("Concord", and in its capacity as
construction agent, the "Construction Agent").
PRELIMINARY STATEMENT
A. Concord and Atlantic Financial Group, Ltd. ("AFG") are parties to that
certain Construction Agency Agreement, dated as of July 12, 2002 (the "Original
Construction Agency Agreement").
B. In connection with the transfer by AFG of the Leased Property to the
AFG Transferee, and the subsequent merger of the AFG Transferee into the Lessor,
Lessor, Concord, as Guarantor, Concord and certain subsidiaries of Concord that
may become party thereto, as Lessees, Electronic Payment Services, Inc., Star
Systems, LLC and other Significant Subsidiaries of Concord that are or may
become party thereto, as Subsidiary Guarantors, the Lenders signatory thereto
and SunTrust Bank, as Agent, are parties to that certain Amended and Restated
Master Agreement, dated as of June 26, 2003 (as further amended, supplemented or
otherwise modified from time to time pursuant thereto, the "Master Agreement").
C. The Construction Agent and the Lessor desire to amend and restate the
Original Construction Agreement in its entirety pursuant to this Agreement.
D. Subject to the terms and conditions hereof, (i) the Lessor desires to
appoint Concord as the Construction Agent to act as its sole and exclusive agent
for the identification and acquisition of the Land pursuant to the Master
Agreement and construction of the Buildings in accordance with the Plans and
Specifications and pursuant to the Master Agreement, and (ii) the Construction
Agent desires, for the benefit of the Lessor, to cause the Buildings to be
constructed in accordance with the Plans and Specifications and pursuant to the
Master Agreement and this Agreement, in each case in accordance with the terms
herein set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings set forth in Appendix A to the Master
Agreement.
ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT
2.1 Appointment. Pursuant to and subject to the terms and conditions set
forth herein and in the Master Agreement and the other Operative Documents, the
Lessor hereby irrevocably designates and appoints Concord as the Construction
Agent to act as its exclusive agent for (i) the identification and acquisition
from time to time of Land to be acquired or leased by the Lessor and leased or
subleased to a Lessee and (ii) the construction of the Buildings in accordance
with the Plans and Specifications on such Land.
2.2 Acceptance; Construction. Concord hereby unconditionally accepts the
designation and appointment as Construction Agent. The Construction Agent will
cause the Buildings to be constructed on the Land substantially in accordance
with the Plans and Specifications and in accordance with the Operative
Documents, and to be equipped in all material respects with all Applicable Law
and insurance requirements. If a Leased Property will be leased by a Lessee
other than Concord, Concord may appoint such Lessee as its sub-construction
agent with respect to such Leased Property, provided that such appointment shall
not affect Concord's obligations hereunder, which obligations shall be primary
and shall remain in full force and effect.
2.3 Commencement of Construction. Subject to Construction Force Majeure
Events, the Construction Agent hereby agrees, unconditionally and for the
benefit of the Lessor, to cause Construction of a Building to commence on each
parcel of Land as soon as is reasonably practicable, in its reasonable judgment,
after the Closing Date in respect of such Land. For purposes hereof,
Construction of a Building shall be deemed to commence on the date after the
Closing Date for the related Leased Property (the "Construction Commencement
Date") on which excavation for the foundation for such Building or any other
Construction of such Building commences. Without limiting the foregoing, no
phase of such Construction shall be undertaken until all permits then required
for such phase have been issued therefor.
2.4 Supplements to this Agreement. On the Closing Date of each parcel of
Land, the Lessor and the Construction Agent shall each execute and deliver to
the Agent a supplement to this Agreement in the form of Exhibit A to this
Agreement, appropriately completed, pursuant to which the Lessor and the
Construction Agent shall, among other things, each acknowledge and agree that
the Construction of such parcel of Land will be governed by the terms of this
Agreement. Following the execution and delivery of a supplement to this
Agreement as provided above, such supplement and all supplements previously
delivered under this Agreement shall constitute a part of this Agreement. On or
prior to the Closing Date of each parcel of Land, the Construction Agent shall
prepare and deliver to the Lessor and the Agent a construction budget (the
"Construction Budget") for the related Leased Property, setting forth in
reasonable detail the budget for the Construction of the proposed Building on
such Land in accordance with the Plans and Specifications therefor, and all
related costs, including the capitalized interest and Yield expected to accrue
during the related Construction Term; such Construction Budget shall include a
line item for the amount of self-insurance or deductibles applicable to such
Leased Property (it being understood that the Construction Agent shall have no
liability with respect to
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self-insurance or deductibles with respect to any Leased Property during the
Construction Term therefor).
2.5 Term. This Agreement shall commence on the date hereof and shall
terminate with respect to any given Leased Property upon the first to occur of:
(a) payment by the Lessee of the Leased Property Balance and
termination of the Lease with respect to such Leased Property in accordance
with the Lease;
(b) the expiration or earlier termination of the Lease;
(c) termination of this Agreement pursuant to Article V hereof;
(d) the Completion Date for such Leased Property and the completion
of all punch list items as set forth in Section 2.8(d); and
(e) the payment by the Construction Agent of the Leased Property
Balance or the Construction Failure Payment with respect to such Leased
Property pursuant to this Agreement.
2.6 Identification of Properties; Construction Documents. The Construction
Agent may execute any of its duties and obligations under this Agreement by or
through agents, architects, consultants, contractors, developers, Affiliates,
employees, engineers or attorneys-in-fact, and the Construction Agent shall
enter into such agreements with architects, contractors, developers,
consultants, engineers and such other agents as the Construction Agent deems
necessary or desirable for the construction of the Buildings pursuant hereto
(the "Construction Documents"); provided, however, that no such delegation shall
limit or reduce in any way the Construction Agent's duties and obligations under
this Agreement; provided, further, that contemporaneously with, or promptly
after, the execution and delivery of a Construction Document, the Construction
Agent will execute and deliver to the Lessor the Security Agreement and
Assignment, pursuant to which the Construction Agent assigns to the Lessor,
among other things, all of the Construction Agent's rights under and interests
in such Construction Documents. Each construction contract shall be with a
reputable general contractor with experience in constructing projects that are
similar in scope and type to the proposed Building, and shall provide for a
guaranteed maximum project cost (within sixty (60) days of the Closing Date for
the related Leased Property) and a commercially reasonable retainage amount (but
in no event less than 10% of the related project cost) through substantial
completion; it being understood that full payment may be made to subcontractors
whose work has been fully performed and approved by the Construction Agent.
2.7 Scope of Authority. (a) Subject to the terms, conditions, restrictions
and limitations set forth in the Operative Documents, the Lessor hereby
expressly authorizes the Construction Agent, or any agent or contractor of the
Construction Agent, and the Construction Agent unconditionally agrees, for the
benefit of the Lessor, to take all action necessary or desirable for the
performance and satisfaction of all of the Construction Agent's obligations
hereunder with respect to the Construction Land Interests acquired or leased by
the Lessor, including, without limitation:
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(i) the identification and assistance with the acquisition or lease
of Land in accordance with the terms and conditions of the Master
Agreement;
(ii) overseeing, directing, supervising and monitoring all design and
supervisory functions relating to the construction of the Buildings and all
engineering work related to the construction of the Buildings;
(iii) negotiating and entering into all contracts or arrangements to
procure the equipment and services necessary to construct the Buildings on
such terms and conditions as are customary and reasonable in light of local
standards and practices;
(iv) obtaining all necessary permits, licenses, consents, approvals
and other authorizations, including those required under Applicable Law
(including Environmental Laws), from all Governmental Authorities in
connection with the construction and the development of the Leased Property
on the Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the
construction, operation and management of the Leased Properties; and
(vi) performing any other acts necessary or appropriate in connection
with the identification, and acquisition (or leasing) and development of
the Land and construction of the Buildings in accordance with the Plans and
Specifications, and all other functions typically undertaken for the
construction and development of similar properties.
(b) Neither the Construction Agent nor any of its Affiliates or agents
shall enter into any contract which would, directly or indirectly, impose any
liability or obligation on the Lessor unless such contract expressly contains an
acknowledgment by the other party or parties thereto that the obligations of the
Lessor are non-recourse, and that the Lessor shall have no personal liability
with respect to such obligations. Any contract entered into by the Construction
Agent or any of its Affiliates or agents not meeting the requirements of the
foregoing sentence shall be ineffective. Subject to the foregoing, the Lessor
shall execute such documents and take such other actions as the Construction
Agent shall reasonably request to permit the Construction Agent to perform its
duties hereunder.
(c) Subject to the terms and conditions of this Agreement and the other
Operative Documents, the Construction Agent shall have sole management and
control over the means, methods, sequences and procedures with respect to the
Construction. The parties agree and acknowledge that the Construction Agent
shall be in possession and control of each Leased Property during the
Construction Term therefor.
2.8 Covenants of the Construction Agent. The Construction Agent hereby
covenants and agrees that it will:
(a) following the Construction Commencement Date for each parcel of
Land subject to this Agreement, but subject to Construction Force Majeure
Events, cause construction of a Building on such Land to be prosecuted
diligently and without undue interruption substantially in accordance with
the Plans and Specifications for such Land,
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in accordance with the Construction Budget for such Leased Property and in
compliance in all material respects with all Applicable Law and insurance
requirements;
(b) notify the Lessor and the Agent in writing not less than five (5)
Business Days after the occurrence of each Construction Force Majeure
Event;
(c) take all reasonable and practical steps to cause the Completion
Date for such Leased Property to occur on or prior to the Scheduled
Construction Termination Date for such Leased Property, subject to the
occurrence of Construction Force Majeure Events, and cause all Liens
(including, without limitation, Liens or claims for materials supplied or
labor or services performed in connection with the construction of the
Buildings), other than Permitted Liens and Lessor Liens, to be discharged
or bonded off, if disputed in good faith by appropriate proceedings by the
Construction Agent;
(d) following the Completion Date for each Leased Property, (A) cause
all outstanding punch list items with respect to the Buildings on such
Leased Property to be completed within ninety (90) days after such
Completion Date and (B) provide to the Lessor a list, in reasonable detail,
of all Funded Equipment related to such Leased Property;
(e) at all times during Construction, cause all title to all
personalty financed by the Lessor on or within such Leased Property to be
and remain vested in the Lessor and cause to be on file with the applicable
filing office or offices all necessary documents under Article 9 of the
Uniform Commercial Code to perfect Lessor's interest therein, free of all
Liens other than Permitted Liens and Lessor Liens, it being understood and
acknowledged that such Lessor's rights, title and interest in and to said
personalty have been assigned to, or for the benefit of, the Agent pursuant
to the Operative Documents;
(f) not enter into any agreements or arrangements with any Person
(other than the Funding Parties pursuant to the Operative Documents) that
would result in any claim against, or liability of, the Agent or any
Funding Party resulting from the fact that any Leased Property is not
completed on or prior to the Scheduled Construction Termination Date
therefor; and
(g) take all reasonable and practical steps to minimize the
disruption of the construction process arising from Construction Force
Majeure Events.
2.9 Insurance.
(a) Insurance by the Construction Agent: The Construction Agent shall
cause to be procured, and maintain in full force and effect during the
Construction Term, insurance policies with insurance companies authorized to do
business in each jurisdiction in which the Leased Properties under Construction
are located with a Best Insurance Reports rating of "A" or better and a
financial size category of "VIII" or higher, with limits and coverage provisions
as set forth below.
(i) General Liability Insurance. Liability insurance on an
occurrence basis for the Construction Agent's and Lessor's liability
arising out of claims for personal
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injury (including bodily injury and death) and property damage. Such
insurance shall provide coverage for products-completed operations,
contractual and personal injury liability with a $1,000,000 limit per
occurrence for combined bodily injury and property damage with policy
aggregates of $2,000,000 (other than products-completed operations) and
$1,000,000 for products-completed operations. A maximum deductible or
self-insured retention of $5,000 per occurrence shall be allowed. In no
event will the Construction Agent be obligated pursuant to this Agreement
to pay the amount of any deductible or self insurance retention that does
not exceed the amount permitted by this Agreement.
(ii) Automobile Liability Insurance. Automobile liability insurance
for the Construction Agent's and Lessor's liability arising out of claims
for bodily injury and property damage covering all leased, non-owned and
hired vehicles used in the performance of the Construction Agent's
obligations under this Agreement with a $1,000,000 limit per accident for
combined bodily injury and property damage and containing appropriate
no-fault insurance provisions wherever applicable. A maximum deductible or
self-insured retention of $5,000 per occurrence shall be allowed.
(iii) Excess Liability Insurance. Liability insurance in excess of the
insurance coverage required in clauses (i) and (ii) above with a limit of
$10,000,000 per occurrence and in the aggregate.
(iv) Builder's Risk Insurance. Property damage insurance on an "all
risk" basis insuring the Construction Agent and Lessor, as their interests
may appear, including coverage against loss or damage from the perils of
earth movement (including but not limited to earthquake, landslide,
subsidence and volcanic eruption), flood, strike, riot and civil commotion.
a. Property Covered. The builder's risk insurance shall provide
coverage for (i) the Buildings, structures, machinery, equipment,
facilities, fixtures, supplies and other property constituting a part
of the Leased Property under Construction, (ii) property of others in
the care, custody or control of the Construction Agent in connection
with the Leased Property, but not contractor's tools, machinery, plant
and equipment including spare parts and accessories not destined to
become a permanent part of the Leased Property, (iii) all preliminary
works, temporary works and interconnection works and (iv) all
foundations and other property below the surface of the ground.
b. Additional Coverages. The builder's risk policy shall insure
(i) the cost (including labor) of preventive measures to reduce or
prevent further loss (ii) inland transit with sublimits sufficient to
insure the largest single shipment to or from the Leased Property site
from anywhere within North America, (iii) attorney's fees, engineering
and other consulting costs, and permit fees directly incurred in order
to repair or replace damaged insured property in the amount of
$100,000, (iv) expediting expenses (defined as reasonable extra costs
incurred after an insured loss to make temporary repairs and expedite
the permanent repair of the damaged property) with a sublimit in the
amount of $25,000, (v) off-site
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storage to insure the full replacement value of any property or
equipment not stored on the Leased Property site with a sublimit of
$150,000, and (vi) demolition expenses, removal of undamaged portion,
and increased cost of construction due to operation of laws or codes
with a sublimit of twenty-five percent (25%) of the amount of the
physical loss or damage.
c. Special Clauses. The builder's risk policy shall include (i)
a 72 hour flood/windstorm/earthquake clause, (ii) unintentional errors
and omissions clause, (iii) a requirement that the insurer pay losses
within 60 days after receipt of an acceptable proof of loss and (iv)
an extension clause allowing the policy period to be extended up to 60
days without modification to the terms and conditions of the policy
and payment of the premium on a pro-rata basis.
d. Prohibited Exclusions. The builder's risk policy shall not
contain any (i) coinsurance provisions, (ii) exclusion for ensuing
direct physical loss or damage resulting from freezing, (iii)
exclusion for physical loss or damage covered under any guarantee or
warranty arising out of an insured peril, or (iv) exclusion for
resultant physical loss or damage caused by ordinary wear and tear,
gradual deterioration, faulty workmanship, design or materials.
e. Sum Insured. The builder's risk policy shall (i) be on a
completed value form, (ii) insure 100% of the completed insurable
value of the Building(s), (iii) value losses at replacement cost,
without deduction for physical depreciation or obsolescence including
custom duties, taxes and fees and (iv) insure loss or damage from
earth movement and flood with separate sublimits equal to the
anticipated cost of the related Leased Property.
f. Deductible. The builder's risk insurance may have a
deductible not in excess of $5,000.
(v) Faulty Design. The Construction Agent hereby represents and
warrants that, with respect to each Leased Property, the agreements with
the Architect provide for $5,000,000 in coverage, and with the contractor
provide for at least $5,000,000 in coverage, for faulty workmanship, design
or materials.
(vi) Delayed Startup Insurance. Delayed startup coverage insuring the
Lessor and covering the Lessor's accrued and capitalized interest and Yield
for a six month period as a result of loss or damage insured by the
builder's risk insurance resulting in a delay in completion of the
Building(s) beyond their anticipated date of completion.
Such insurance shall (a) have a deductible of not greater than 10 days per
occurrence during the Construction Term, (b) have an indemnity period not
less than six months, (c) cover loss sustained when access to the Leased
Property site is prevented due to an insured peril at premises in the
vicinity of the Leased Property site with a sublimit of $100,000, (d) cover
loss sustained due to the action of a public authority preventing access to
the Leased Property site due to imminent or actual loss or destruction
arising from an insured peril at premises in the vicinity of the Leased
Property site with a
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sublimit of $100,000, (e) not contain any form of a coinsurance provision
or include a waiver of such provisions, (f) insure loss caused by damage to
finished equipment or machinery while awaiting shipment at a supplier's
premises, and (g) cover losses relating to real estate tax assessments,
insurance expenses, architect's and engineer's fees to repair or replace
lost or work, legal and accounting fees, construction management fees,
testing and permitting expenses, marketing and administration expenses and
overhead.
(vii) Endorsements. All policies of liability insurance required to be
maintained by the Construction Agent shall be endorsed as follows.
a. To name the Lessor as the loss payee with respect to property
insurance;
b. To name the Funding Parties and the Agent as additional insureds
with respect to all liability insurance;
c. To provide a severability of interests and cross liability
clause; and
d. That the insurance shall be primary and not excess to or
contributing with any insurance or self-insurance maintained by
the Lessor or the additional insureds.
(viii) Waiver of Subrogation. The Construction Agent hereby waives any
and every claim for recovery from the Funding Parties and the Agent for any
and all loss or damage covered by any of the insurance policies to be
maintained under this Agreement to the extent that such loss or damage is
recovered under any such policy. If the foregoing waiver will preclude the
assignment of any such claim to the extent of such recovery, by subrogation
(or otherwise), to an insurance company (or other person), the Construction
Agent (or other appropriate party) shall give written notice of the terms
of such waiver to each insurance company which has issued, or which may
issue in the future, any such policy of insurance (if such notice is
required by the insurance policy) and shall cause each such insurance
policy to be properly endorsed by the issuer thereof to, or to otherwise
contain one or more provisions that, prevent the invalidation of the
insurance coverage provided thereby by reason of such waiver.
(b) Conditions.
(i) Adjustment of Losses. Losses, if any, with respect to any Leased
Property under any damage policies required to be carried under this
Section 2.9 shall be adjusted with the insurance companies, including the
filing of appropriate proceedings, as follows: (x) so long as no
Construction Agency Event of Default shall have occurred and be continuing,
and provided that the Construction Agent is required, or has agreed, to
repair the damage or if the purchase option has been exercised, such losses
will be adjusted by the Construction Agent, (y) if any Construction Agency
Event of Default shall have occurred and be continuing or Construction
Force Majeure Event declared, or if the Construction Agent is not required
to, and has not agreed to, repair the damage, such losses shall be adjusted
by the Lessor with the consent of the Construction Agent (which consent
shall not be unreasonably withheld or delayed). The party which shall be
entitled to adjust losses may appear in any proceeding or action to
negotiate, prosecute, adjust or
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appeal any claim for any award, compensation or insurance payment on
account of any Casualty at such party's reasonable request, and the other
party shall participate in any such proceeding, action, negotiation,
prosecution or adjustment. The Construction Agent may incur no expenses
with respect to loss adjustment without the prior consent, not to be
unreasonably withheld, of the Lessor. Adjustment expenses shall be funded
through Advances. The parties hereto agree that this Agreement shall
control the rights of the parties hereto in and to any such award,
compensation or insurance payment relating to any Casualty affecting a
Construction Land Interest.
(ii) Application of Insurance Proceeds. All proceeds of insurance
maintained pursuant to this Section 2.9 on account of any damage or
destruction of any Leased Property (or part thereof) subject to
Construction shall be paid to Lessor, provided that (i) if no Construction
Agency Event of Default shall have occurred and (ii) subject to Section
3.4, the Construction Agent has undertaken to repair the damage and has
demonstrated to the reasonable satisfaction of the Lessor that the
application of such insurance proceeds, together with the remaining
Commitments, are sufficient to cause the construction to be completed on or
prior to the Scheduled Construction Termination Date, such funds shall be
held by Lessor in a segregated account and disbursed to the Construction
Agent to pay costs incurred by the Construction Agent to effect the repair
of the Leased Property. If the Construction cannot be completed on or prior
to the Scheduled Construction Termination Date, the parties agree to
discuss the issue of disbursement of insurance proceeds to the Construction
Agent in good faith and after such discussion, the Lessor shall make a
determination in the exercise of its sole discretion. Any proceeds of
insurance paid to Lessor pursuant in this Section 2.9 not used to repair
the Leased Property and held by Lessor shall be applied to the account of
Construction Agent to reduce the Lease Balance.
(iii) Additional Insurance. Any additional insurance obtained by the
Construction Agent or the Lessor shall provide that it shall not interfere
with or in any way limit the insurance described in this Section 2.9 or
increase the amount of any premium payable with respect to any insurance
described in such Section. The proceeds of any such additional insurance
will be for the account of the party maintaining such additional insurance.
(iv) Payment of Premiums. The Construction Agent shall cause to be
paid all premiums for the insurance required hereunder from the proceeds of
Advances. The Construction Agent shall renew or replace, or cause to be
renewed or replaced, each insurance policy required hereunder prior to the
expiration date thereof for the duration of the Construction Term.
(v) Policy Cancellation and Change. All policies of insurance
required to be maintained pursuant to this Section 2.9 shall be endorsed so
that if at any time they are cancelled, or their coverage is reduced (by
any party including the insured) so as to affect the interests of the Agent
or any Funding Party such cancellation or reduction shall not be effective
as to the Agent or such Funding Party for 30 days, except for non-payment
of premium which shall be for 10 days, after written notice from such
insurer of such cancellation or reduction.
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(vi) Miscellaneous Policy Provisions. All property damage insurance
policies, (i) shall not include any annual or term aggregate limits of
liability or clause requiring the payment of additional premium to
reinstate the limits after loss except for insurance covering the perils of
flood, earth movement and sabotage, (ii) shall include the Lessor as a
named insured as its interest may appear, and (iii) shall include a clause
requiring the insurer to make final payment on any claim within 60 days
after the submission of proof of loss and its acceptance by the insurer.
(vii) Separation of Interests. All policies shall insure the interests
of the Agent and each Funding Party regardless of any breach or violation
by the Construction Agent or any other Person of warranties, declarations
or conditions contained in such policies, any action or inaction of the
Construction Agent or others, or any foreclosure relating to the Leased
Property or any change in ownership of all or any portion of the Leased
Property.
(viii) Acceptable Policy Terms and Conditions. All policies of
insurance required to be maintained pursuant to this Section 2.9 shall
contain terms and conditions reasonably acceptable to the Lessor.
(c) Evidence of Insurance. On the related Construction Commencement Date
and on an annual basis at least 10 days prior to each policy anniversary, the
Construction Agent shall furnish, or cause to be furnished, the Lessor with (1)
certificates of insurance or binders, in a form acceptable to the Lessor,
evidencing all of the insurance required by the provisions of this Section 2.9.
Such certificates of insurance/binders shall be executed by each insurer or by
an authorized representative of each insurer. Such certificates of
insurance/binders shall identify the underwriters, the type of insurance, the
insurance limits and the policy term and shall specifically list the special
provisions enumerated for such insurance required by this Section 2.9. Upon
request, the Construction Agent will promptly furnish the Lessor with copies of
all insurance binders and certificates of such insurance relating to the
insurance required to be maintained hereunder.
(d) Reports. The Construction Agent will advise the Lessor in writing
promptly of (i) any default in the payment of any premium and of any other act
or omission on the part of the Construction Agent which may invalidate or render
unenforceable, in whole or in part, any insurance being maintained by the
Construction Agent pursuant to this Section 2.9 and (ii) the unavailability of
any insurance in the commercial market.
(e) No Duty of Lessor to Verify or Review. No provision of this Section
2.9 or any provision of this Agreement or the other Operative Documents shall
impose on the Lessor any duty or obligation to verify the existence or adequacy
of the insurance coverage maintained by the Construction Agent, nor shall the
Lessor be responsible for any representations or warranties made by or on behalf
of the Construction Agent to any insurance company or underwriter. Any failure
on the part of the Lessor to pursue or obtain the evidence of the insurance
required by this Agreement from the Construction Agent and/or failure of the
Lessor to point out any non-compliance of such evidence of insurance shall not
constitute a waiver of any of the insurance requirements in this Agreement.
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Notwithstanding anything herein to the contrary, the Construction Agent shall
not be responsible for the payment of any insurance deductible amounts.
ARTICLE III
THE BUILDINGS
3.1 Amendments; Modifications. The Construction Agent may, subject to the
conditions, restrictions and limitations set forth herein and in the Operative
Documents (but not otherwise), at any time during the term hereof revise, amend
or modify the Plans and Specifications and the related Construction Documents
without the consent of the Lessor; provided, however, that the Lessor's prior
written consent will be required in the following instances: (x) such revision,
amendment or modification by its terms would result in the Completion Date of
the Buildings occurring after the Scheduled Construction Termination Date, or
(y) such revision, amendment or modification would result in the cost for such
Leased Property exceeding the then remaining Commitments, minus the then
remaining costs for completing each other Leased Property for which the
Completion Date has not occurred, or increase the Construction Budget therefor
by an amount in excess of 10% thereof, or (z) the aggregate effect of such
revision, amendment or modification, when taken together with any previous or
contemporaneous revision, amendment or modification to the Plans and
Specifications for such Leased Property, would be to reduce the Fair Market
Sales Value of such Leased Property in a material respect when completed.
3.2 Casualty and Condemnation. If a Casualty or Condemnation occurs during
the Construction Term for a Construction Land Interest, the Construction Agent
shall promptly notify the Lessor in writing of such occurrence, together with an
estimate of the costs of rebuilding or restoring the affected Construction Land
Interest and the estimated time to complete such rebuilding or restoration. If
the insurance proceeds or Awards, as the case may be, resulting from such
Casualty or Condemnation are sufficient to cover the estimated costs of repair
or rebuilding, the Lessor shall make such proceeds available to the Construction
Agent to pay, or to reimburse the Construction Agent for, the costs of such
rebuilding or restoration, and the Construction Agent shall promptly and
diligently cause such restoration or rebuilding to be completed. In the event
that the proceeds of the applicable insurance or Awards are insufficient to
cover the costs of such rebuilding or restoration, either, at the Lessor's
option, (i) the Lessor shall make available to the Construction Agent Advances
to cover any deficiency between such insurance proceeds or Awards, as the case
may be, and the cost of such rebuilding or restoration, in which case the
Construction Agent shall promptly and diligently cause such restoration or
rebuilding to be completed, or (ii) the Construction Agent shall return the
affected Construction Land Interest to the Lessor in accordance with the
provisions of Section 5.3(a) (in which event, the Lessor shall be entitled to
retain all of the applicable insurance proceeds or Awards). In no event shall
the Construction Agent have any responsibility to the Lessor to pay any
deficiency between the insurance proceeds or Awards, as the case may be, and the
related Leased Property Balance, so long as the Construction Agent has complied
with its obligations, including its obligations to maintain insurance, pursuant
to this Agreement.
3.3 Indemnity. During the Construction Term for each Leased Property, the
Construction Agent agrees to assume liability for, and to indemnify, protect,
defend, save and
11
hold harmless the Lessor, on an After-Tax Basis, from and against, any and all
Claims that may be imposed on, incurred by or asserted or threatened to be
asserted, against the Lessor, whether or not the Lessor shall also be
indemnified as to any such Claim by any other Person, in any way relating to or
arising out of (i) any event, condition or circumstance within the Construction
Agent's control, (ii) fraud, misapplication of funds, illegal acts or wilful
misconduct on the part of the Construction Agent, or (iii) any event described
in paragraph (f) of Article XII of the Lease with respect to the Construction
Agent (unless such event would constitute a Limited Event of Default pursuant to
clause (ii) of the definition thereof). As used in clause (i) of the foregoing
sentence, the term "within the Construction Agent's control" shall mean caused
by or arising from any failure by any Obligor to comply with any of its
obligations under the Operative Documents (including its insurance obligations,
unless such insurance is not available in the commercial market), any
representation or warranty by any Obligor in any of the Operative Documents
being inaccurate, any negligence or wilful misconduct of any Obligor, or any
claim by any third party against the Lessor based upon the action or inaction of
or by any Obligor; provided, however, that if such Claim is related to an
inability or the failure to complete the construction of a Leased Property on or
prior to Scheduled Construction Termination Date therefor and such Claim does
not arise out of or result from events or circumstances described in the
foregoing clause (ii) or (iii), the Construction Agent's liability shall be
limited to an amount equal to the Construction Failure Payment. Any Claims that
are incurred by any Indemnified Party for which the Construction Agent is not
obligated to indemnify pursuant to this Section 3.3 or the Master Agreement
shall, if requested by the Agent by written notice to Lessor, be capitalized,
and result in an increase to the Funded Amounts related to the relevant Leased
Property. The foregoing indemnities are in addition to, and not in limitation
of, the indemnities with respect to environmental claims set forth in Section
7.2 of the Master Agreement. The provisions of Section 7.3 of the Master
Agreement shall apply to any amounts that the Construction Agent is requested to
pay pursuant to this Section 3.3.
3.4 Construction Force Majeure Events. If a Construction Force Majeure
Event that results in, or could reasonably be expected to result in, a Force
Majeure Loss (including any losses that result from a Construction Force Majeure
Event that prevents, or could reasonably be expected to prevent, the
Construction Agent from completing Construction prior to the Scheduled
Construction Termination Date) occurs, the Construction Agent shall promptly
provide the Lessor with written notice thereof within ten (10) Business Days of
the Construction Agent's knowledge of the occurrence thereof (the "Construction
Force Majeure Declaration"). Upon receipt of the Construction Force Majeure
Declaration, Lessor and the Construction Agent shall consult with each other as
to what steps, if any, are to be taken to remediate such Construction Force
Majeure Event, including consulting as to the appropriateness of an extension of
the Scheduled Construction Termination Date. The Construction Agent shall take
all reasonable and practical steps to minimize the disruption of the
construction process and all steps reasonably necessary to prevent further
damage arising from such Construction Force Majeure Event. The Construction
Agent shall be entitled to reimbursement from Lessor for any costs directly
related to minimizing the disruption and to preventing further damage of such
Construction Force Majeure Event through the proceeds of Fundings pursuant to,
and subject to the terms and conditions of, the Master Agreement. The
Construction Agent shall, within thirty (30) days of the delivery of the
Construction Force Majeure Declaration, submit to the Lessor a budget detailing
the costs that would be incurred in remediating such Construction Force Majeure
Event and a schedule for effecting the same. The Construction Agent will
commence
12
such remediation only upon receipt of written authorization from the Lessor to
do so, which authorization (or denial thereof) shall be given by written notice
to Construction Agent not later than fifteen (15) Business Days after Lessor's
receipt of the budget referred to in the preceding sentence. The Lessor in its
sole discretion may elect to continue Construction and make Advances for such
remediation or terminate this Agreement with respect to the affected Leased
Property. If the Lessor elects to terminate this Agreement with respect to the
affected Leased Property, subject to Construction Agent's right to purchase such
Leased Property in accordance with Section 5.5 hereof, the Construction Agent
shall within thirty (30) days of receipt of written notice of termination return
the affected Leased Property to the Lessor in accordance with the procedures set
forth in Section 5.6.
In the event the Lessor elects to continue Construction after receipt of a
Construction Force Majeure Declaration, the Lessor shall make available to the
Construction Agent, so long as no Construction Agency Event of Default shall
have occurred and be continuing, all insurance proceeds payable to the Lessor
with respect to such event to the extent necessary to remediate such event.
ARTICLE IV
PAYMENT OF FUNDS
4.1 Funding of Property Acquisition Costs and Property Buildings Costs.
(a) In connection with the acquisition or lease of any Land and during the
course of the construction of the Buildings on any Land, the Construction Agent
may request that the Lessor advance funds for the payment of Construction Costs,
and the Lessor will comply with such request to the extent provided for under,
and subject to the conditions, restrictions and limitations contained in, the
Master Agreement and the other Operative Documents.
(b) The proceeds of any funds made available to the Lessor to pay
Construction Costs shall be made available to the Construction Agent in
accordance with the Funding Request relating thereto and the terms of the Master
Agreement. The Construction Agent will use such proceeds only to pay the
Construction Costs for the Leased Properties set forth in the Funding Request
relating to such funds.
(c) After the Closing Date for a Leased Property, the Construction Agent
shall not become personally liable for any Construction Costs, or pay any
Construction Costs from its own funds, but only with the proceeds of Advances.
ARTICLE V
CONSTRUCTION AGENCY EVENTS OF DEFAULT
5.1 Construction Agency Events of Default. If any one or more of the
following events (each a "Construction Agency Event of Default") shall occur and
be continuing:
(a) the Construction Agent fails to apply any funds paid by, or on
behalf of, the Lessor to the Construction Agent for Construction Costs to
the payment of
13
Construction Costs for such Leased Property, and such failure continues for
five (5) Business Days after such payment is due and owing;
(b) subject to Construction Force Majeure Events, the Construction
Commencement Date with respect to any Leased Property shall fail to occur
for any reason on or prior to the date that is one year after the Closing
Date with respect to such Leased Property;
(c) the Completion Date with respect to any Leased Property shall
fail to occur for any reason on or prior to the earlier of the Funding
Termination Date and the Scheduled Construction Termination Date for such
Leased Property;
(d) any Event of Default shall have occurred and be continuing; or
(e) the Construction Agent shall fail to observe or perform in any
material respect any term, covenant or condition of this Agreement (except
those specified in clauses (a) through (d) above), and such failure shall
remain uncured for a period of thirty (30) days after notice thereof to the
Construction Agent;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Article, immediately terminate this Agreement as
to any Leased Property or Properties or all of the Leased Properties,
separately, successively or concurrently (all in Lessor's sole discretion) by
giving the Construction Agent written notice of such termination, and upon the
giving of such notice, this Agreement shall terminate as to such Leased Property
or Properties or all of the Leased Properties (as the case may be) and all
rights of the Construction Agent and, subject to the terms of the Operative
Documents, all obligations of the Lessor under this Agreement with respect to
such Leased Property or Properties or all of the Leased Properties (as the case
may be) shall cease. Subject to Section 5.4, The Construction Agent shall pay
upon demand all reasonable costs, expenses, losses, expenditures and damages
(including, without limitation, attorneys' fees and disbursements) actually
incurred by or on behalf of the Lessor in connection with any Construction
Agency Event of Default.
5.2 Damages. The termination of this Agreement pursuant to Section 5.1
shall in no event relieve the Construction Agent of its liability and
obligations hereunder, all of which shall survive any such termination.
5.3 Remedies; Remedies Cumulative. (a) If a Construction Agency Event of
Default shall have occurred and be continuing under Section 5.1(b), 5.1(c),
5.1(d) (other than a Lease Event of Default under paragraph (f) of Article XII
of the Lease, unless such event would constitute a Limited Event of Default
pursuant to clause (ii) of the definition thereof) or 5.1(e) other than as a
result of Construction Agent's fraudulent or illegal acts, misapplication of
funds or wilful misconduct, then, in each case, the Lessor shall have all rights
and remedies available under the Operative Documents or available at law, equity
or otherwise (subject to the limitations set forth herein), including the right
to terminate this Agreement by giving Construction Agent written notice of such
termination. Upon the giving of such notice, all rights and all obligations of
the Construction Agent under this Agreement shall cease, except for such rights
and obligations as by their terms are to continue beyond such termination,
including
14
Section 5.6(f) hereof and Lessor shall have the right to require Construction
Agent to pay immediately upon receipt of notice from Lessor the Construction
Failure Payment for all of the Construction Land Interests; provided that the
Construction Agent has the option to purchase the Leased Property in accordance
with Section 5.5 hereof, which shall constitute a cure of such Construction
Agency Event of Default as provided therein.
In the event Construction Agent does not purchase the Leased Property
pursuant to the terms hereof, the related Lessee(s) shall return the Leased
Property to Lessor within ten (10) Business Days of the declaration of the
Construction Agency Event of Default in accordance with Section 5.6 hereof and
Lessor shall have the right to sell the Leased Property to an unaffiliated third
party and to require Construction Agent to pay to Lessor, immediately upon
receipt of the termination notice, cash in an amount equal to the Construction
Failure Payment for all of the Construction Land Interests. The Net Selling
Price for such Leased Property shall be distributed in accordance with Section
6.6 of the Master Agreement.
(b) If a Construction Agency Event of Default shall have occurred and be
continuing under Sections 5.1(a) or 5.1(d) (as the result of an Event of Default
under paragraph (f) of Article XII of the Lease, unless such event would
constitute a Limited Event of Default pursuant to clause (ii) of the definition
thereof), or otherwise as the result of fraud, misapplication of funds, illegal
acts or wilful misconduct on the part of the Construction Agent, Lessor shall
have the right to terminate this Agreement by giving Construction Agent written
notice of such termination, and upon the giving of such notice, all rights and
all obligations of the Construction Agent under this Agreement shall cease,
except for such rights and obligations as by their terms are to continue beyond
such termination, including Section 5.6(f) hereof, and Lessor shall have the
right to require Construction Agent to pay immediately upon receipt of notice
from Lessor the Lease Balance then outstanding. In addition, but subject to the
Construction Agent's purchase right under Section 5.5, the Lessor may sell the
Leased Property, and the Net Selling Price derived from any such sale shall be
distributed first, to Lessor in the amount of the Lease Balance to the extent
not previously paid by the Construction Agent, second, to the extent the
Construction Agent has paid to the Lessor the Lease Balance, to the Construction
Agent to reimburse it to the extent of its payment of the Lease Balance, but if
no such payment was made, to the Lessor, and third to the Lessor. The Lessor
shall have all the rights and remedies afforded Lessor by Applicable Law and the
Operative Documents. If the Construction Agent does not purchase the Leased
Property, it shall return the Leased Property to the Lessor within ten (10)
Business Days of the declaration of the Construction Agency Event of Default in
accordance with Section 5.6 hereof.
(c) Remedies Cumulative. Subject to the limitations on the Construction
Agent's liability pursuant to Section 5.4 hereof, no failure to exercise and no
delay in exercising, on the part of the Lessor any right, remedy, power or
privilege under this Agreement or under the other Operative Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. Subject to the limitations on the Construction Agent's liability
pursuant to Section 5.4 hereof, the rights, remedies, powers and privileges
provided in this Agreement and in the other Operative Documents are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by
law.
15
5.4 Limitation on Construction Agent's Recourse Liability. Subject to the
last sentence of this Section 5.4, notwithstanding anything contained herein or
in any other Operative Document to the contrary, upon the occurrence and during
the continuance of a Construction Agency Event of Default with respect to any
Leased Property described in Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease
Event of Default under paragraph (f) of Article XII of the Lease, unless such
event constitutes a Limited Event of Default pursuant to clause (ii) of the
definition thereof) or 5.1(e), the aggregate maximum recourse liability of the
Construction Agent with respect to such default to the Lessor or any Person
claiming by, through or under the Lessor under the Operative Documents, shall be
limited to the Construction Failure Payment for such Leased Property, provided
that if such Construction Agency Event of Default results solely from a
Construction Force Majeure Event or from an Event of Default pursuant to
paragraph (1) of Article XII of the Lease but no person or group of persons
controls more than 50% of the common stock of Concord or the voting power of
Concord, then the Construction Agent shall have no obligation to pay the
Construction Failure Payment with respect to the related Leased Property. The
Construction Agent nonetheless acknowledges and agrees that (i) the Lessor shall
be entitled to recover from the applicable Leased Property (including through
any reletting and/or sale of such Leased Property or any portion thereof) the
entire outstanding Lease Balance (and, to the extent sales proceeds exceed the
Lease Balance, amounts in excess of the Lease Balance as provided in Section
5.3(a) and (b)), all accrued and unpaid interest, accrued Yield and other
amounts then due and owing to the Lessor under the Operative Documents and all
other costs and expenses of the Lessor incurred in connection with such Leased
Property (including without limitation, any costs incurred in connection with
the construction of the Building(s) and other improvements and/or any reletting
or sale of such Leased Property or any portion thereof) from and after the date
of such return and (ii) the foregoing recourse limitations are exclusive of any
amounts due and owing under Article III hereof. If a Construction Agency Event
of Default occurs due to the fraud, misapplication of funds, illegal acts or
wilful misconduct on the part of the Construction Agent or any event described
in paragraph (f) of Article XII of the Lease, the Construction Agent shall be
obligated to pay the Lease Balance as set forth herein.
5.5 Construction Agent's Right to Purchase. If a Construction Agency Event
of Default hereunder relates only to a specific Leased Property or specific
Leased Properties but not all Leased Properties, the Construction Agent shall
have the right, at its option, to cure such Construction Agency Event of Default
by purchasing (a "Construction Purchase") such affected Leased Property or
Properties for the Leased Property Balance(s) therefor from the Lessor within
ten (10) Business Days of the delivery of the notice of termination referred to
in Section 5.3(a) or (b) in accordance with the terms and subject to the
conditions, restrictions and limitations of Section 14.5 of the Lease, in which
case no Construction Agency Event of Default shall be deemed to have occurred
hereunder for the purposes of the other Operative Documents.
5.6 Construction Return Procedures. In the case of any return of any
Leased Property to the Lessor pursuant to Section 3.4 or Article V hereof (a
"Construction Return"), the Construction Agent shall, at its cost and expense,
do each of the following on or prior to the return date specified by the Lessor
in a written notice to the Construction Agent given at least ten (10) Business
Days prior thereto:
(a) the Construction Agent shall, on or prior to the return date, execute
and deliver to the Lessor (or to the Lessor's designee): (i) a deed with respect
to all of the interest of the Lessee
16
and the Construction Agent in the Leased Property containing representations and
covenants of grantor to the Lessor (or such other Person) solely regarding the
absence of Liens (other than Lessor Liens and the Liens of the Operative
Documents (other than Liens in favor of the related Lessee)), (ii) an agreement
granting easements and rights of way to such Leased Property as reasonably
deemed necessary by the Lessor, (iii) a ▇▇▇▇ of sale without warranty (except as
to the absence of liens other than Lessor Liens and the Lien of the Operative
Documents) with respect to all of the interest of the Lessee and the
Construction Agent in all personalty and equipment financed by the Funding
Parties and (iv) an assignment of such Construction Agent's entire interest in
such Leased Property (which shall include an assignment of all such Construction
Agent's right, title and interest in and to all awards, compensation and
insurance proceeds payable in connection with any Casualty, Condemnation or
Construction Force Majeure Event affecting such Leased Property and an
assignment of leases of such Leased Property), in the case of the documents
referred to in clauses (i), (ii) and (iv) in recordable form and otherwise in
conformity with local custom and free and clear of any Liens other than Lessor
Liens and the Lien of the Operative Documents;
(b) the Construction Agent shall, on the construction return date, pay
over to the Agent (as assignee of the Lessor) any awards, compensation and
insurance previously received by the Construction Agent in connection with such
Leased Property which have not been applied in connection with the Construction,
repair or maintenance of the Leased Property except such amounts as may be
necessary to reimburse the Construction Agent for expenditures incurred in
connection with such Construction, repair or maintenance during the Construction
Term which have not been reimbursed;
(c) The Construction Agent shall execute and deliver to the Lessor a
statement of termination of this Agreement and each of the other Operative
Documents with respect to the affected Leased Property to be executed by the
Funding Parties and delivered to the Construction Agent;
(d) the Construction Agent shall, on or prior to the return date, vacate
the Leased Property and transfer possession of such Leased Property to the
Lessor or any Person designated by the Lessor, in each case by surrendering the
same into the possession of the Lessor or such Person, as the case may be, free
and clear of all Liens (other than Lessor Liens and the liens of the Operative
Documents) in compliance with all Applicable Law (including Environmental Laws);
(e) on or prior to the return date, the Construction Agent shall deliver
to the Lessor or any Person designated by the Lessor copies of all Construction
Documents, permits, licenses, books and records regarding the maintenance of
such Leased Property and the Construction Agent's interest in such Leased
Property, and a current copy of the Plans and Specifications; and
(f) the Construction Agent shall take all actions reasonably requested by
the Lessor to fully assign to the Lessor all of its rights and claims in, to and
under, all of the Construction Documents, and all permits and other governmental
authorizations related to such Leased Property or the Construction.
17
ARTICLE VI
NO CONSTRUCTION AGENCY FEE
6.1 Lease as Fulfillment of Lessor's Obligations. Subject to Article IV
hereof, all obligations, duties and requirements imposed upon or allocated to
the Construction Agent shall be performed by the Construction Agent at the
Construction's Agent's sole cost and expense, and the Construction Agent will
not be entitled to, and the Lessor shall not have any obligation to pay, any
agency fee or other fee or compensation, and the Construction Agent shall not be
entitled to, and the Lessor shall not have any obligation to make or pay, any
reimbursement therefor, it being understood that this Agreement is being entered
into as consideration for and as an inducement to the Lessor entering into the
Lease and the other Operative Documents.
ARTICLE VII
LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS
7.1 Exercise of the Lessor's Rights. The Construction Agent hereby
acknowledges and agrees that the rights and powers of the Lessor under this
Agreement have been assigned to, and may be exercised by, the Agent, for the
benefit of the Lenders, pursuant to the Loan Agreement and the related Operative
Documents.
7.2 Lessor's Right to Cure Construction Agent's Defaults. The Lessor,
without waiving or releasing any obligation or Construction Agency Event of
Default, may, upon prior written notice to the Construction Agent (but shall be
under no obligation to), remedy any Construction Agency Event of Default for the
account of and at the sole cost and expense of the Construction Agent. All
reasonable out of pocket costs and expenses so incurred (including actual and
reasonable fees and expenses of counsel), together with interest thereon at the
Overdue Rate from the date on which such sums or expenses are paid by the
Lessor, shall be paid by the Construction Agent to the Lessor on demand;
provided that such amount shall not exceed the Construction Failure Payment for
the related Leased Property.
ARTICLE VIII
MISCELLANEOUS
8.1 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Lessor, the Construction Agent and their respective legal
representatives, successors and permitted assigns. The Construction Agent shall
not assign its rights or obligations hereunder (except as expressly permitted
herein) without the prior written consent of the Lessor and the Agent.
8.2 Notices. All notices, consents, directions, approvals, instructions,
requests, demands and other communications required or permitted by the terms
hereof to be given to any Person shall be given in writing in the manner
provided in, shall be sent to the respective addresses set forth in, and the
effectiveness thereof shall be governed by the provisions of, Section 8.2 of the
Master Agreement.
18
8.3 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
8.4 Amendments and Waivers. Subject to Section 8.4 of the Master
Agreement, the Lessor and the Construction Agent may from time to time, enter
into written amendments, supplements or modifications hereto.
8.5 Counterparts. This Agreement may be executed on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement.
8.6 Severability. Any provision of this Agreement which is 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.
8.7 Headings and Table of Contents. The headings and table of contents
contained in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
8.8 Jurisdiction; Waivers. The Lessor and the Construction Agent hereby
acknowledge that the terms of Section 8.11 of the Master Agreement apply to this
Agreement.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CONCORD EFS, INC.
By: /s/ E.T. HASLAM
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Chief Financial Officer
-----------------------------
SUNTRUST EQUITY FUNDING, LLC
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
R. ▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President and Manager
S-1 CONSTRUCTION
AGENCY AGREEMENT
EXHIBIT A
Supplement to Construction Agency Agreement
-------------------------------------------
SUPPLEMENT to Construction Agency Agreement, dated as of ______________,
200_, between SUNTRUST EQUITY FUNDING, LLC, a Delaware limited liability company
(the "Lessor"), and CONCORD EFS, INC., a Delaware corporation (in its capacity
as construction agent, the "Construction Agent"). Capitalized terms used but not
otherwise defined herein shall have the meanings given them in the Construction
Agency Agreement.
The Lessor and the Construction Agent are parties to that certain Amended
and Restated Construction Agency Agreement, dated as of June 26, 2003 (as
further amended, supplemented or otherwise modified, the "Construction Agency
Agreement"), pursuant to which (i) the Lessor has appointed the Construction
Agent as its sole and exclusive agent in connection with the construction of the
Buildings in accordance with the Plans and Specifications, and (ii) the
Construction Agent has agreed, for the benefit of the Lessor, to cause the
construction of the Buildings to be completed in accordance with the Plans and
Specifications.
Subject to the terms and conditions of the Construction Agency Agreement,
the Lessor and the Construction Agent desire that the terms of the Construction
Agency Agreement apply to the Land described in Schedule 1 and wish to execute
this Supplement to provide therefor.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
1. The Construction Agent agrees to act as Construction Agent and to
perform its obligations under the Construction Agency Agreement in connection
with the completion of construction of the Building on the Land described in
Schedule 1 in accordance with the Plans and Specifications for such Land. The
Construction Agent hereby represents and warrants to Lessor that the
Construction Agent has heretofore delivered to Lessor a true, correct and
complete copy of the Plans and Specifications for the Building on the Land
described in Schedule 1 or, if not available on the date hereof, will deliver
such Plans and Specifications as soon as available.
2. Each of the Lessor and the Construction Agent acknowledges and agrees
that the construction of the Buildings on the Land described in Schedule 1 shall
be governed by the terms of the Construction Agency Agreement.
3. The anticipated construction budget relating to the construction and
development of the Building on the Land described in Schedule 1 is $__________.
[The acquisition cost of the Land described in Schedule 1 is $___________.]*
----------
/*/ May not be applicable if Ground Lease is used.
A-1
4. This Supplement shall, upon its execution and delivery, constitute a
part of the Construction Agency Agreement.
A-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CONCORD EFS, INC.
By:
------------------------------------
SUNTRUST EQUITY FUNDING, LLC
By:
------------------------------------
A-3
Schedule 1 to Supplement
Description of Land Interest
----------------------------