EXHIBIT 10.AAe
AMENDED AND RESTATED AGENCY AGREEMENT
between
TECH DATA CORPORATION,
as Construction Agent
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
(formerly known as First Security Bank of Utah, N.A.,
not individually, but solely as
Owner Trustee under the TD 1996 Real Estate Trust,
as Lessor
Dated as of May 8, 2000
TABLE OF CONTENTS
PAGE
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PRELIMINARY STATEMENT.....................................................1
ARTICLE I DEFINITIONS....................................................1
1.1 DEFINED TERMS...........................................1
ARTICLE II APPOINTMENT OF CONSTRUCTION AGENT.............................2
2.1 APPOINTMENT.............................................2
2.2 ACCEPTANCE AND UNDERTAKING..............................5
2.3 TERM....................................................5
2.4 SCOPE OF AUTHORITY......................................6
2.5 DELEGATION OF DUTIES....................................7
2.6 COVENANTS OF THE CONSTRUCTION AGENT.....................7
ARTICLE III THE IMPROVEMENTS.............................................8
3.1 CONSTRUCTION............................................8
3.2 AMENDMENTS; MODIFICATIONS...............................8
3.3 ABANDONMENT OR PERMANENT DISCONTINUANCE.................9
ARTICLE IV PAYMENT OF FUNDS..............................................9
4.1 RIGHT TO RECEIVE CONSTRUCTION COST......................9
ARTICLE V EVENTS OF DEFAULT.............................................10
5.1 EVENTS OF DEFAULT......................................10
5.2 DAMAGES................................................11
5.3 REMEDIES; REMEDIES CUMULATIVE..........................11
ARTICLE VI LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS.................12
6.1 EXERCISE OF THE LESSOR'S RIGHTS........................12
6.2 LESSOR'S RIGHT TO CURE CONSTRUCTION AGENT'S DEFAULTS...12
ARTICLE VII MISCELLANEOUS...............................................13
7.1 NOTICES................................................13
7.2 SUCCESSORS AND ASSIGNS.................................13
7.3 GOVERNING LAW..........................................13
7.4 SUBMISSION TO JURISDICTION; WAIVERS....................13
7.5 AMENDMENTS AND WAIVERS.................................14
7.6 COUNTERPARTS...........................................14
7.7 SEVERABILITY...........................................14
7.8 HEADINGS AND TABLE OF CONTENTS.........................14
7.9 WAIVER OF JURY TRIAL...................................14
AMENDED AND RESTATED AGENCY AGREEMENT
THIS AMENDED AND RESTATED AGENCY AGREEMENT, dated as of May 8, 2000
(the "AGREEMENT"), between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, formerly known as First Security Bank of Utah, N.A.
("FSB"), not individually, but solely as Owner Trustee under the TD 1996 Real
Estate Trust (the "LESSOR") and TECH DATA CORPORATION, a Florida corporation
(the "CONSTRUCTION AGENT").
PRELIMINARY STATEMENT
A. The Lessor and Tech Data Corporation (the "Lessee") entered into
that certain Lease Agreement dated as of April 26, 1996 (as amended, the
"Existing Lease"), pursuant to which the Lessee agreed to lease certain land,
improvements and equipment from the Lessor.
B. In connection with the Existing Lease, the Lessor and the
Construction Agent entered into that certain Agency Agreement dated as of April
26, 1996 (as amended, the "Existing Agency Agreement"), pursuant to which the
Lessor appointed the Construction Agent as its sole and exclusive agent in
connection with the identification and acquisition of properties (provided title
to the properties would be held in the name of the Lessor) and construction of
improvements on such properties in accordance with certain plans and
specifications.
C. The Lessor and the Lessee are amending and restating the Existing
Lease by entering into an Amended and Restated Lease Agreement dated as of the
date hereof (as further amended, modified or restated from time to time, the
"Lease").
D. In connection with the Lease, the parties desire to amend and
restate the Existing Agency Agreement as hereinafter 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 Existing Agency Agreement is amended and restated in its
entirety as follows, and 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 Amended and
Restated Participation Agreement, dated as of May 8, 2000, among the
Construction Agent, the Lessee, FSB, not individually, but solely as Owner
Trustee under the TD 1996 Real Estate Trust, the Holders party thereto, the
Lenders
party thereto, and Bank of America, N.A., successor in interest to
NationsBank, N.A. (South), as Agent for the Lenders, as such agreement may be
amended, modified, supplemented or restated from time to time (the
"Participation Agreement").
ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT
2.1 APPOINTMENT.
(a) Subject to the terms and conditions hereof, the Lessor hereby
irrevocably designates and appoints the Construction Agent as its exclusive
agent and general contractor, and the Construction Agent accepts such
appointment, in connection with the identification and acquisition from time to
time of the Properties (provided title to the Properties (which may include a
ground leasehold interest in Land pursuant to a Ground Lease) shall be held in
the name of the Lessor) and the development, acquisition, installation,
construction and testing of the Equipment and Improvements on the Land in
accordance with the Plans and Specifications, and pursuant to the terms of this
Agreement, the Participation Agreement and the other Operative Agreements.
Notwithstanding any provisions hereof or in any other Operative Agreement to the
contrary, the Construction Agent acknowledges and agrees that the Lessor shall
advance no more than the sum of the aggregate Commitments of the Lenders plus
the aggregate amount of the Holder Commitments in regard to the Properties.
(b) After the Construction Agent gains knowledge or a reasonable
expectation that (i) the aggregate costs for any Property shall exceed the
original Construction Budget (or exceed any Construction Budget modified in
accordance with the Operative Agreements) for such Property or (ii) Completion
for any Property shall not occur on or prior to the Construction Period
Termination Date, then the Construction Agent shall promptly (and in any event
within five (5) days of gaining such knowledge or expectation) notify the Lessor
and the Agent in writing of the same.
(c) If at any time prior to the Construction Period Termination Date,
the Agent or the Lessor (i) shall have received any notice referred to in
SECTION 2.1(B) or (ii) shall have determined in good faith that (A) the sum of
the Available Commitments and the Available Holder Commitments shall be less
than the amounts necessary for Completion of all Properties or (B) the
Completion of any Property shall not occur on or prior to the Construction
Period Termination Date, then in any such case the Lessor shall have the option
(at the direction of the Agent) to replace the Construction Agent with a new
construction agent selected by the Lessor (at the direction of the Agent) to
finalize the Completion of the Properties before or (if consented to by the
Agent) after the Construction Period Termination Date. If the Lessor notifies
the Construction Agent (the "Agent Replacement Notice") that the Lessor intends
to replace the Construction Agent with a new construction agent, then the
Construction Agent shall have the option either:
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(1) to pay to the Lessor, on a date designated by the Lessor,
an aggregate amount equal to the Maximum Amount; and on and after such
date, the Construction Agent shall be irrevocably deemed, without any
further action, to have relinquished all right, title and interest in
and to all, but not less than all, of the Properties and to have
transferred and conveyed all such right, title and interest to the
Lessor; or
(2) to be responsible for all costs and expenses incurred to
finalize the Completion of the Properties pursuant to this SECTION
2.1(C); in which case all such costs shall be payable by the
Construction Agent upon demand by the Lessor or the Agent; PROVIDED
that in no event shall the obligations of the Construction Agent for
such costs and expenses exceed the Maximum Amount; PROVIDED FURTHER
that the Properties shall remain subject to the terms of the Lease
(including without limitation the end-of-term options set forth in
Articles XX and XXII of the Lease); or
(3) to pay to the Lessor, on a date designated by the Lessor,
an aggregate amount equal to (1) the Termination Value for all, but not
less than all, of the Properties, plus (2) all other amounts then due
and owing by the Lessee or the Construction Agent under the Operative
Agreements, plus (3) any and all costs and expenses incurred by or on
behalf of the Lessor or the Agent in connection with the Properties
(including without limitation the transfer thereof) and on such date
the Lessor shall transfer and convey to the Construction Agent all
right, title and interest of the Lessor in and to the Properties.
Within five (5) days after the delivery to the Construction Agent of an Agent
Replacement Notice, the Construction Agent shall deliver to the Lessor and the
Agent a notice selecting one of the options set forth in clause (1), (2) or (3)
above. In the event the Construction Agent fails to deliver such notice within
such time period, the Construction Agent shall be deemed to have selected the
option set forth in the clause (1) (unless the Construction Agent, the Lessor
and the Agent agree that option (2) or (3) shall apply). If the Construction
Agent selects (or is deemed to have selected) the option in clause (2), all
amounts expended by the Lessor to finalize the Completion of the Properties
pursuant to this Section shall be added to the Property Cost. Costs with respect
to any Property in excess of the original Construction Budget (or any
Construction Budget modified in accordance with the Operative Agreements) in
each case as previously delivered to the Agent for such Property shall not be
the responsibility of the Construction Agent but instead shall be paid using the
proceeds of Loans and Holder Fundings to the extent, but only to the extent,
that (after taking into account such excess costs and any other items of excess
cost which are then known to the Construction Agent or are reasonable for the
Construction Agent to expect) the conditions precedent set forth in SECTIONS 5.4
AND 5.5 of the Participation Agreement are satisfied.
(d) If at any time prior to the Construction Period Termination Date,
(i) (A) the Construction Agent gains knowledge or a reasonable
expectation that (1) the aggregate costs for any Property shall exceed
the original Construction Budget (or exceed any Construction Budget
modified in accordance with the Operative Agreements) for such Property
or (2) Completion for any Property shall not occur on or prior to the
Construction Period Termination Date, or (B) the Agent or the Lessor
shall
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have determined in good faith that (y) the sum of the Available
Commitments and the Available Holder Commitments shall be less than the
amounts necessary for Completion of all Properties or (z) the
Completion of any Property shall not occur on or prior to the
Construction Period Termination Date; and in any such case
(ii) any costs of Completion of any Property are not funded by
the Lenders or Holders because (after taking into account such costs
and any other items of cost which are then known to the Construction
Agent or are reasonable for the Construction Agent to expect with
respect to any Property), the conditions set forth in the Participation
Agreement and the other Operative Agreements not satisfied;
then (whether or not a new construction agent has been selected pursuant to
SECTION 2.1(C)), within ten (10) days of the Construction Agent gaining any such
knowledge or expectation described in SECTION 2.1(D)(I)(A) above, or within ten
(10) days of the Lessor or the Agent delivering notice to the Construction Agent
of any determination described in SECTION 2.1(D)(I)(B) above and requesting
exercise of a Construction Agent Option, the Construction Agent shall deliver a
notice to the Agent and the Lessor, electing one of the options set forth in the
following clauses (Y) or (Z) (collectively, the "Construction Agent Options"):
(Y) the Construction Agent shall pay to the Lessor, on a date
designated by the Lessor, an aggregate amount equal to (1) the
Termination Value for all, but not less than all, of the Properties,
plus (2) all other amounts then due and owing by the Lessee or the
Construction Agent under the Operative Agreements, plus (3) any and all
costs and expenses incurred by or on behalf of the Lessor or the Agent
in connection with the Properties (including without limitation the
transfer thereof) and on such date the Lessor shall transfer and convey
to the Construction Agent all right, title and interest of the Lessor
in and to the Properties; or
(Z) the Construction Agent shall pay to the Lessor, on a date
designated by the Lessor, an aggregate amount equal to the Maximum
Amount; and on and after such date, the Construction Agent shall be
irrevocably deemed, without any further action, to have relinquished
all right, title and interest in and to all, but not less than all, of
the Properties and to have transferred and conveyed all such right,
title and interest to the Lessor.
(e) In connection with any transfer of the Properties to the
Construction Agent pursuant to SECTION 2.1(D)(Y) OR 3.3, the Lessor shall
transfer and convey all of its right, title and interest in and to the
Properties free and clear of the Lien of the Lease and all Lessor Liens. Subject
to the foregoing, all, but not less than all, of the Properties shall be
conveyed to the Construction Agent "AS IS", "WHERE IS" and in then present
physical condition.
(f) In the event of a transfer of the Properties to the Construction
Agent pursuant to SECTION 2.1(D)(Y), the Lessor (at the direction of the Agent)
shall elect whether the out-of-pocket fees and expenses associated with the
transfer of the Properties shall be paid by either (I) sales proceeds for the
Properties, (II) the Lessor (but only to the extent amounts are available
therefor under the Available Commitments and Available Holder Commitments or
each Lender and each Holder approves the necessary increases in the Commitments
and Holder Commitments to fund
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such fees and expenses), or (III) the Construction Agent, PROVIDED, that if the
Construction Agent funds such fees and expenses pursuant to this clause (III)
then the Maximum Amount will be reduced accordingly, as more specifically set
forth in the definition of "Maximum Amount." Amounts funded by the Lenders and
the Holders with respect to any fees and expenses described in this SECTION
2.1(D) shall be added to the Property Cost.
(g) In the event the costs in excess of any original Construction
Budget (or any Construction Budget modified in accordance with the Operative
Agreements), in each case as previously delivered to the Agent for any Property,
are not funded by the Lenders and the Holders because (after taking into account
such excess costs and any other items of excess cost which are then known to the
Construction Agent or are reasonable for the Construction Agent to expect), the
conditions precedent set forth in the Participation Agreement and the other
Operative Agreements are not satisfied, then such excess costs shall be funded
by the Lenders and the Holders if, but only if, (a) all of the Lenders and all
of the Holders agree to such funding at such time, and (b) the Commitments and
Holder Commitments are increased accordingly.
(h) Without limiting the generality of any other provision of this
Agreement or any other Operative Agreement, in the event that Completion of any
Property has not occurred by the Construction Period Termination Date, then from
the Construction Period Termination Date until the date of Completion of all the
Properties, all Loans, Holder Advances and other amounts payable under the
Operative Agreements shall bear interest or Holder Yield (as applicable) at the
Overdue Rate.
2.2 ACCEPTANCE AND UNDERTAKING. The Construction Agent hereby
unconditionally accepts the agency appointment and undertakes, for the benefit
of the Lessor, to identify and acquire certain Properties (including Equipment)
(provided title to the Properties shall be held in the name of the Lessor) and
to cause the construction of the Improvements and installation of the Equipment
in accordance with the Plans and Specifications and the Operative Agreements.
2.3 TERM. This Agreement shall commence on the date hereof and (unless
the Agent in its sole discretion elects otherwise) shall terminate on the later
of the Construction Period Termination Date or the date on which all Properties
have been made subject to the Lease by execution of appropriate Lease
Supplements by the Lessee. If this Agreement expires prior to the Completion of
all, but not less than all, of the Properties, then the Lessor (at the direction
of the Agent) may hire a new construction agent to finalize the Completion of
all such Properties. All costs and expenses incurred by the Lessor (or a new
construction agent on behalf of the Lessor, but in each case through Loans and
Holder Fundings) to finalize the Completion of the Properties pursuant to this
SECTION 2.3 shall be reimbursed by the Construction Agent and shall be payable
by the Construction Agent upon demand by the Lessor or the Agent; PROVIDED that
in no event shall the obligations of the Construction Agent for such costs and
expenses exceed the Maximum Amount; and PROVIDED FURTHER that amounts expended
by the Lessor (with monies obtained through Loans and Holder Fundings) to
finalize the Completion of the Properties pursuant to this Section shall be
added to the Property Cost.
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2.4 SCOPE OF AUTHORITY.
(a) 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 any and all of Lessor's obligations under any
construction agreement and to fulfill all of the obligations of the
Construction Agent including, without limitation:
(i) the identification and assistance with the
acquisition of Properties in accordance with the terms and
conditions of the Participation Agreement and the negotiation
and entering into of all contracts necessary to purchase the
Properties;
(ii) all design and supervisory functions relating
to the construction of the Improvements and installation and
testing of the related Equipment and performing all
engineering work related to the construction, installation and
testing of the Improvements;
(iii) (A) negotiating and entering into all contracts
or arrangements to procure the equipment necessary to
construct the Improvements and (B) negotiating all contracts
or arrangements to procure the Equipment on such terms and
conditions as are customary and reasonable in light of local
standards and practices and the businesses in which the Lessee
is engaged;
(iv) assisting in obtaining all necessary permits,
licenses, consents, approvals and other authorizations,
including without limitation those required under applicable
Environmental Laws and occupancy permits, from all
Governmental Authorities in connection with the development
and construction of the Improvements 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
Properties; and
(vi) performing any other acts necessary in
connection with the identification and acquisition of the
Properties and construction and development of the
Improvements in accordance with the Plans and Specifications.
(b) Neither the Construction Agent nor any of its Affiliates
or agents shall enter into any contract in the name of Lessor without
Lessor's consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
(c) Subject to the terms and conditions of this Agreement, the
Construction Agent shall have sole management and control over the
construction means, methods, sequences and procedures with respect to
the construction of the Improvements.
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2.5 DELEGATION OF DUTIES. The Construction Agent may execute any of its
duties under this Agreement by or through agents, contractors, employees or
attorneys-in-fact; PROVIDED, HOWEVER, that no such delegation shall limit or
reduce in any way the Construction Agent's duties and obligations under this
Agreement.
2.6 COVENANTS OF THE CONSTRUCTION AGENT. The Construction Agent hereby
covenants and agrees that it will:
(a) following the Construction Commencement Date for each
Property, cause construction of the applicable Improvements to be
prosecuted diligently, in a good and workmanlike manner, and
substantially in accordance with the Plans and Specifications,
construction contracts, Construction Budget and construction schedule
for such Property, and in accordance with prevalent industry practices
and all Legal Requirements and Insurance Requirements;
(b) cause the Completion Date for such Improvements to occur
on or before the Construction Period Termination Date, in each case
free and clear (by removal or bonding) of Liens (other than Permitted
Liens); PROVIDED, that if the Completion Date does not occur on or
before such date, then the Lessor may take such actions (and the
Construction Agent shall pay such costs and expenses) as provided for
in SECTION 2.3.
(c) cause all outstanding punch list items with respect to
such Improvements to be completed;
(d) during construction, cause all title to all Equipment on
each Property to vest in the Owner Trustee and file all necessary
documents under Article 9 of the Uniform Commercial Code to perfect
such title (to the extent perfection can be obtained by filing under
the UCC);
(e) no less than five (5) Business Days prior to the scheduled
date for the initial Construction Advance to be made in connection with
any Improvements, the Construction Agent shall deliver to the Lessor
true, complete and correct copies of the Construction Budget for such
Improvements. Thereafter, the Construction Agent, on a monthly basis,
shall deliver to the Lessor true, correct and complete copies of any
material modifications of the Construction Budget; and
(f) procure (or cause to be procured), on behalf of Lessor
(but at Construction Agent's expense) insurance for the Properties
during the period commencing on each Property Closing Date and
continuing to and throughout the Construction Period in such amounts
and with such coverages as are required to be maintained during the
Term under the provisions of ARTICLE XIV of the Lease.
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ARTICLE III
THE IMPROVEMENTS
3.1 CONSTRUCTION. The Construction Agent shall cause the Improvements
to be constructed, equipped, maintained and used in full compliance with all
Legal Requirements and Insurance Requirements.
3.2 AMENDMENTS; MODIFICATIONS.
(a) The Construction Agent may at any time revise, amend or
modify (i) the Plans and Specifications without the consent of the
Lessor; PROVIDED that any such amendment to the Plans and
Specifications does not (x) result in the Completion Date of the
Improvements occurring on or after the Construction Period Termination
Date or (y) result in the total Property Cost of the Improvements and
the Land included in a Property being less than the minimum amount or
more than the maximum amount specified in SECTION 5.4(E) of the
Participation Agreement or (z) result in the cost of any Improvements
subject to such amendment exceeding the sum of the then Available
Commitments and the then Available Holder Commitments (reduced by the
amount, if any, necessary to pay for the cost of construction and
development of Improvements on other Properties which are currently
under construction but have not yet been completed (such amount the
"UNFUNDED AMOUNT")), and (ii) the Construction Budget without the
consent of the Lessor; PROVIDED that such revision, modification or
amendment to the Construction Budget does not (A) result in the total
Property Cost of the Improvements Equipment and Land included in a
Property being less than the minimum amount or more than the maximum
amount specified in SECTION 5.4(E) of the Participation Agreement or
(B) result in unfunded Project Costs being greater than the sum of the
then Available Commitments and the then Available Holder Commitments
(reduced by the Unfunded Amount) or (C) result in the aggregate
Construction Budget (as amended, modified or revised) for any Property
being larger than 105% of the initial Construction Budget delivered to
the Agent with respect to such Property (prior to any amendments,
modifications or revisions).
(b) The Construction Agent agrees that it will not implement
any revision, amendment or modification to the Plans and Specifications
or Construction Budget for any Property if 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 or Construction Budget (as the case may be)
for any Property, would cause a material reduction in value of any
Property when completed, unless the Agent has previously obtained (at
Construction Agent's sole cost) an Appraisal of such Property taking
account of such proposed revision, amendment or modification and
showing an appraised value for such Property equal to or greater than
90% of the expected maximum Property Cost of such Property (based on
appropriately revised Construction Budgets).
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3.3 ABANDONMENT OR PERMANENT DISCONTINUANCE. Until termination of the
Lease Agreement and the Agency Agreement, the Construction Agent shall promptly
and diligently complete the construction of such Improvements in accordance with
the Plans and Specifications and with the terms hereof and cause the Completion
Date with respect to such Construction Period Property to occur on or prior to
the Construction Period Termination Date. If the Construction Agent shall
abandon or permanently discontinue the construction and development of one or
more Construction Period Properties (which abandonment or permanent
discontinuance shall be deemed to have occurred if no work at any such
Construction Period Property site is undertaken or completed during a period of
thirty (30) days or more for reasons other than a Force Majeure Event, then the
Construction Agent shall pay to the Lessor, on a date designated by the Lessor,
an aggregate amount equal to the liquidated damages amount referenced in SECTION
5.3(B) of this Agreement regarding all, but not less than all, of the
Properties. On such date, Lessor shall transfer all of its right, title and
interest in the Properties to the Construction Agent in accordance with SECTION
2.1(E).
ARTICLE IV
PAYMENT OF FUNDS
4.1 RIGHT TO RECEIVE CONSTRUCTION COST.
(a) In connection with the acquisition of any Property and
during the course of the construction of the Improvements and
installation of any Equipment on any Property, the Construction Agent
may request that the Lessor advance funds for the payment of Property
Acquisition Costs, Transaction Expenses or any other Property Cost
(such Property Acquisition Expenses, Transaction Expenses and other
Property Cost being referred to collectively as "Project Costs"), and
the Lessor will comply with such request to the extent provided for
under the Participation Agreement. The Construction Agent and the
Lessor acknowledge and agree that the Construction Agent's right to
request such funds and the Lessor's obligation to advance such funds
for the payment of Property Acquisition Costs or Project Costs is
subject in all respects to the terms and conditions of the
Participation Agreement and each of the other Operative Agreements.
Without limiting the generality of the foregoing, it is specifically
understood and agreed that in no event shall the aggregate amounts
advanced by the Lenders or the Holders to the Lessor for Property
Acquisition Costs or Project Costs and any other amounts due and owing
hereunder or under any of the other Operative Agreements exceed the sum
of the aggregate Commitments of the Lenders plus the aggregate amount
of the Holder Commitments, including without limitation such amounts
owing for (a) the acquisition and development of the Properties or (b)
additional amounts which accrue or become due and owing under the
Credit Agreement or Trust Agreement as obligations of the Lessor prior
to any Completion Date (for interest payments on the Loans or payments
of the Holder Yield for the Holder Advances).
(b) The proceeds of any funds made available to the Lessor to
pay Property Acquisition Costs or Project Costs shall be made available
to the Construction Agent in
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accordance with the Requisition relating thereto and the terms of the
Participation Agreement. The Construction Agent will use such proceeds
only to pay the Property Acquisition Costs or Project Costs set forth
in the Requisition relating to such funds.
ARTICLE V
EVENTS OF DEFAULT
5.1 EVENTS OF DEFAULT. If any one or more of the following events (each
an "EVENT OF DEFAULT") shall occur:
(a) the Construction Agent shall fail to apply any funds paid
by the Lessor to the Construction Agent for the acquisition of the
Properties and the construction of the Improvements to the payment of
Property Acquisition Costs or Project Costs;
(b) the Construction Agent shall fail to make any payment
required pursuant to the terms of this Agreement (including without
limitation pursuant to SECTION 2.1 or 3.3) within three (3) Business
Days after the same has become due and payable;
(c) any "Lease Event of Default" (as defined in Appendix A to
the Participation Agreement) shall have occurred and not be cured
within any cure period expressly permitted under the terms of the
respective Operative Agreement;
(d) the Construction Agent shall fail to maintain insurance as
required by SECTION 2.6(F) of this Agreement;
(e) the Construction Agent or the Lessee shall fail to observe
or perform any material term, covenant or condition of this Agreement
or any other Operative Agreement other than as set forth in paragraphs
(a), (b), (c) or (d) of this SECTION 5.1 or SECTION 17.1(A), 17.1(B),
17.1(C) or 17(G) of the Lease, and such failure or breach shall remain
uncured for a period of thirty (30) days after receipt of written
notice from Lessor thereof; PROVIDED, that if such failure or breach is
not capable of being cured, the grace period referred to in this
subclause (e) shall not apply; or
(f) any representation, warranty or statement of fact by the
Construction Agent, the Lessee or any Guarantor set forth in any
Operative Agreement or in any writing, report, certificate, or
statement at any time furnished to Lessor, the Agent, any Holder or any
Lender, by or on behalf of the Construction Agent, the Lessee or any
Guarantor pursuant to or in connection with this Agreement or any other
Operative Agreement, shall be false or misleading in any material
respect when made;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Agreement, terminate this Agreement by giving the
Construction Agent written notice of such termination and upon the expiration of
the time fixed in such notice and the payment of all amounts owing by the
Construction Agent hereunder (including without limitation any amounts
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specified under SECTION 5.3 hereof), this Agreement shall terminate. The
Construction Agent shall pay all reasonable costs and expenses incurred by or on
behalf of the Lessor, including reasonable fees and expenses of counsel, as a
result of any Event of Default hereunder.
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 an Event of Default shall have occurred and be
continuing, the Lessor shall have all rights available at law, equity
or otherwise.
(b) Without limiting the generality of paragraph (a) above,
upon the occurrence of an Event of Default, beyond any applicable
notice, grace or cure period (if any) included within the definition of
such Event of Default, Lessor shall have the option (and shall be
deemed automatically, and without any further action, to have exercised
such option upon the occurrence of any Lease Event of Default arising
under SECTIONS 17.1(H), (I), or (J) of the Lease) to transfer and
convey to the Construction Agent upon a date designated by Lessor all
right, title and interest of Lessor in and to all of the Properties. On
any transfer and conveyance date specified by Lessor pursuant to this
SECTION 5.3(B), (i) Lessor shall transfer and convey all of its right,
title and interest in and to all of the Properties free and clear of
the Lien of the Lease and all Lessor Liens, (ii) the Construction Agent
hereby covenants and agrees that it will accept such transfer and
conveyance of right, title and interest in and to such Properties and
(iii) the Construction Agent hereby promises to pay to the Lessor, as
liquidated damages (it being agreed that it would be impossible
accurately to determine actual damages), an aggregate amount equal to
the aggregate Termination Value of all of the Properties, plus all Rent
and other amounts then due and owing by the Construction Agent or the
Lessee under the Operative Agreements. The Construction Agent
specifically acknowledges and agrees that its obligations under this
SECTION 5.3(B), including without limitation its obligations to accept
the transfer and conveyance of any Construction Period Property and its
payment obligations described in subparagraph (iii) of this SECTION
5.3(B), shall be absolute and unconditional under any and all
circumstances and shall be performed or paid, as the case may be,
without further notice or demand and without any abatement, reduction,
diminution, set off, defense, counterclaim or recoupment whatsoever.
Notwithstanding the foregoing provisions of this SECTION 5.3(B), Lessor
shall have the right in its sole discretion to rescind any exercise of
its option under this SECTION 5.3(B) upon the giving of its written
confirmation of such rescission to the Construction Agent.
(c) The Construction Agent shall have the right to cure an
Event of Default hereunder with respect to any given Property (to the
extent such Event of Default is caused by a Force Majeure Event) by
purchasing or causing the Lessee to purchase such Property from the
Lessor (to the extent such Event of Default is no longer continuing
with respect to any other Property remaining subject to this Agreement
after such purchase) for an amount equal to the Termination Value of
such Property and all other
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amounts then due and owing by the Construction Agent or the Lessee
under the Operative Agreements.
(d) 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 Agreements 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. The rights, remedies, powers and privileges
provided in this Agreement are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
(e) The foregoing notwithstanding, so long as the Construction
Agent promptly pays the amounts required by Sections 2.3 and 2.6(b) and
provided no Abandonment has occurred, then the Agent may not require
the Construction Agent to pay in excess of the Maximum Amount as a
remedy for the Construction Agent's failure to cause the Completion
Date of a Property to occur on or before the Construction Period
Termination Date. Nothing contained in this paragraph, however, shall
prevent the Lessor from requiring the Lessee or the Construction Agent
to pay the full amount required under any applicable provision of this
Agreement or any other Operative Agreement if the Lessee or the
Construction Agent exercises any option to purchase or cause the sale
of any Property; and the Lessor shall not be required to transfer or
convey any Property pursuant to Section 5.3(b) hereof (or any other
provision of this Agreement or any other Operative Agreement) unless
the Lessee or the Construction Agent pays the full amount required
under such Section 5.3(b) (or such other provision, as the case may
be).
ARTICLE VI
LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS
6.1 EXERCISE OF THE LESSOR'S RIGHTS. Subject to the Excepted Rights and
the Excepted Payments, the Construction Agent and the Lessor hereby acknowledge
and agree that, subject to and in accordance with the terms of the Security
Agreement made by the Lessor in favor of the Agent, the rights and powers of the
Lessor under this Agreement have been assigned to the Agent.
6.2 LESSOR'S RIGHT TO CURE CONSTRUCTION AGENT'S DEFAULTS. The Lessor,
without waiving or releasing any obligation or Event of Default, may (but shall
be under no obligation to) remedy any 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 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.
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ARTICLE VII
MISCELLANEOUS
7.1 NOTICES. Unless otherwise expressly specified or permitted by the
terms hereof, all notices, requests, demands, directions, agreements and
documents delivered in connection with this Agreement shall be delivered as
provided in SECTION 14.3 of the Participation Agreement.
7.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Lessor, and Construction Agent and the respective
successors and the assigns of the Lessor. The Construction Agent may not assign
this Agreement or any of its rights or obligations hereunder in whole or in part
to any Person without the prior written consent of the Lessor.
7.3 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 LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
7.4 SUBMISSION TO JURISDICTION; WAIVERS. Each party hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Operative Agreements to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Florida and the courts of the United States of America in each case
sitting in Broward County, Florida, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same.
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail) postage prepaid, to the
respective party at its address set forth in SECTION 7.1 hereof or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this SECTION 7.4 any special, exemplary, punitive or consequential
damages.
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7.5 AMENDMENTS AND WAIVERS. None of the terms or provisions of this
Agreement may be terminated, amended, supplemented, waived or modified except in
accordance with the terms of SECTION 14.5 of the Participation Agreement.
7.6 COUNTERPARTS . This Agreement may be executed in any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
7.7 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.
7.8 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.
7.9 WAIVER OF JURY TRIAL. THE LESSOR AND THE CONSTRUCTION AGENT
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Signatures on the following page.]
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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.
TECH DATA CORPORATION, as the Construction Agent
By: /s/
---------------------------
Name: Jeffery P. Howells
Title: Executive Vice President of Finance and
Chief Financial Officer
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as Owner Trustee under
the TD 1996 Real Estate Trust, as the Lessor
By: /s/
---------------------------
Name: C. Scott Nielsen
Title: Vice President
SIGNATURE PAGE 1