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Exhibit 10.4
AMENDED AND RESTATED
MASTER AGREEMENT
Dated as of June 26, 2003
among
CONCORD EFS, INC.,
as Guarantor
CONCORD EFS, INC., CONCORD CORPORATE SERVICES, INC.
AND CERTAIN OTHER SUBSIDIARIES OF
CONCORD EFS, INC.
THAT MAY HEREAFTER BECOME PARTY HERETO,
as Lessees,
CONCORD CORPORATE SERVICES, INC.,
STAR SYSTEMS, LLC AND CERTAIN OTHER
SIGNIFICANT SUBSIDIARIES OF
CONCORD EFS, INC.
THAT ARE OR MAY HEREAFTER BECOME PARTY HERETO,
as Subsidiary Guarantors,
SUNTRUST EQUITY FUNDING, LLC, as Lessor,
CERTAIN FINANCIAL INSTITUTIONS PARTIES HERETO,
as Lenders
and
SUNTRUST BANK, as Agent
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS; INTERPRETATION.......................................2
ARTICLE II ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION.............................................2
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.............2
SECTION 2.2 Fundings of Purchase Price, Development
Costs and Construction Costs................................3
SECTION 2.3 Funded Amounts and Interest and Yield Thereon...............6
SECTION 2.4 Lessee Owner for Tax Purposes...............................7
SECTION 2.5 Amounts Due Under Lease.....................................7
SECTION 2.6 Posting of Cash Collateral..................................8
SECTION 2.7 Actions on the Effective Date Hereof........................9
ARTICLE III CONDITIONS PRECEDENT; DOCUMENTS...................................9
SECTION 3.1 Conditions to the Obligations of the
Funding Parties on each Closing Date........................9
SECTION 3.2 Additional Conditions for Effectiveness....................13
SECTION 3.3 Conditions to the Obligations of Lessee....................15
SECTION 3.4 Conditions to the Obligations of the
Funding Parties on each Funding Date.......................15
SECTION 3.5 Completion Date Conditions.................................16
SECTION 3.6 Addition of Lessees........................................17
ARTICLE IV REPRESENTATIONS..................................................18
SECTION 4.1 Representations of the Obligors............................18
SECTION 4.2 Survival of Representations and Effect of Fundings.........24
SECTION 4.3 Representations of the Lessor..............................24
SECTION 4.4 Representations of each Lender.............................26
ARTICLE V COVENANTS OF OBLIGORS AND THE LESSOR.............................27
SECTION 5.1 Financial Statements.......................................27
SECTION 5.2 EBITR Ratio................................................28
SECTION 5.3 Funded Debt to Tangible Capitalization Ratio...............28
SECTION 5.4 Adjusted Net Income........................................28
SECTION 5.5 No Impairment..............................................28
SECTION 5.6 Additional Covenants; Significant Subsidiary...............28
SECTION 5.7 Payment of Obligations.....................................29
SECTION 5.8 Maintenance of Property: Insurance.........................29
SECTION 5.9 Conduct of Business and Maintenance of Existence...........29
SECTION 5.10 Compliance with Laws.......................................30
SECTION 5.11 Inspection of Property, Books and Records..................30
SECTION 5.12 Consolidations, Mergers and Sales of Assets................30
SECTION 5.13 Negative Pledge............................................31
SECTION 5.14 Limitation on Indebtedness.................................32
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TABLE OF CONTENTS
Page
SECTION 5.15 Transactions with Affiliates...............................32
SECTION 5.16 Further Assurances.........................................32
SECTION 5.17 Additional Required Appraisals.............................33
SECTION 5.18 Lessor's Covenants.........................................33
SECTION 5.19 FDC Merger.................................................35
ARTICLE VI TRANSFERS BY LESSOR AND LENDERS; DISTRIBUTIONS...................35
SECTION 6.1 Lessor Transfers...........................................35
SECTION 6.2 Lender Transfers...........................................36
SECTION 6.3 Distribution and Application of Rent Payments..............37
SECTION 6.4 Distribution and Application of Purchase Payment...........38
SECTION 6.5 Distribution and Application to Funding Party
Balances of Lessees Payment of Recourse Deficiency
Amount Upon Exercise of Remarketing Option.................38
SECTION 6.6 Distribution and Application to Funding Party
Balances of Remarketing Proceeds of Leased Property........38
SECTION 6.7 Distribution and Application of Payments Received
When an Event of Default Exists............................40
SECTION 6.8 Distribution of Other Payments.............................40
SECTION 6.9 Timing of Agent Distributions..............................41
ARTICLE VII INDEMNIFICATION..................................................41
SECTION 7.1 General Indemnification....................................41
SECTION 7.2 Environmental Indemnity....................................43
SECTION 7.3 Proceedings in Respect of Claims...........................44
SECTION 7.4 General Tax Indemnity......................................46
SECTION 7.5 Increased Costs, etc.......................................51
SECTION 7.6 End of Term Indemnity......................................56
ARTICLE VIII MISCELLANEOUS....................................................56
SECTION 8.1 Survival of Agreements.....................................56
SECTION 8.2 Notices....................................................56
SECTION 8.3 Counterparts...............................................57
SECTION 8.4 Amendments.................................................57
SECTION 8.5 Headings, etc..............................................58
SECTION 8.6 Parties in Interest........................................58
SECTION 8.7 GOVERNING LAW..............................................58
SECTION 8.8 Expenses...................................................58
SECTION 8.9 Severability...............................................59
SECTION 8.10 Liabilities of the Funding Parties: Sharing
of Payments................................................59
SECTION 8.11 Submission to Jurisdiction; Waivers........................60
SECTION 8.12 Liabilities of the Agent...................................60
SECTION 8.13 Disclosure.................................................61
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APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 1 Significant Subsidiaries
SCHEDULE 2 Original Commitments
SCHEDULE 2.2 Commitments
SCHEDULE 4.1(o) Environmental Matters
SCHEDULE 8.2 Notice Addresses
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C Form of Security Agreement and Assignment
EXHIBIT D Form of Mortgage
EXHIBIT E Form of Joinder Agreement
EXHIBIT F Form of Assignment and Acceptance Agreement
EXHIBIT G Form of Local Counsel Opinion
EXHIBIT H Form of Certification of Construction Completion
EXHIBIT I Form of Payment Date Notice
EXHIBIT J Form of Compliance Certificate
EXHIBIT K Form of Addition Agreement
EXHIBIT L Form of Lessor Certificate
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AMENDED AND RESTATED MASTER AGREEMENT
THIS AMENDED AND RESTATED MASTER AGREEMENT, dated as of June 26, 2003, but
effective as of the Effective Date (as it may further be amended or modified
from time to time in accordance with the provisions hereof, and including the
Original Agreements for the period that they were in effect, this "Master
Agreement"), is among CONCORD EFS, INC., a Delaware corporation ("Concord" or
the "Guarantor"), CONCORD EFS, INC., CONCORD CORPORATE SERVICES, INC., a
Delaware corporation ("CCS"), and certain other Subsidiaries of Concord that may
hereafter become parties hereto as lessees pursuant to Section 3.6
(individually, a "Lessee" and collectively the "Lessees"), as Lessees, CONCORD
CORPORATE SERVICES, INC., a Delaware corporation ("CCS"), STAR SYSTEMS, LLC, a
Delaware limited liability company ("Star"), and the other Significant
Subsidiaries set forth on Schedule 1 (together with other Significant
Subsidiaries that may hereafter become parties hereto pursuant to the Subsidiary
Guaranty, individually, a "Subsidiary Guarantor" and collectively the
"Subsidiary Guarantors"), SUNTRUST EQUITY FUNDING, LLC, a Delaware limited
liability company (the "Lessor"), certain financial institutions parties hereto
as lenders (together with any other financial institution that becomes a party
hereto as a lender, collectively referred to as "Lenders" and individually as a
"Lender"), and SUNTRUST BANK, a Georgia banking corporation, as agent for the
Lenders (in such capacity, the "Agent").
PRELIMINARY STATEMENTS
1. The Guarantor, the Lessees, the Subsidiary Guarantors, SunTrust Bank,
as a Lender, Atlantic Financial Group, Ltd. ("AFG") and the Agent were parties
to that certain Master Agreement, dated as of July 12, 2002 (the "2002 Master
Agreement"). CCS, AFG, SunTrust Bank, as a Lender, and the Agent were parties to
that certain Master Agreement, dated as of November 15, 2000 (as heretofore
amended, the "2000 Master Agreement"). CCS, AFG, SunTrust Bank, as a Lender, and
the Agent were parties to that certain Master Agreement, dated as of May 22,
1998 (as heretofore amended, the "1998 Master Agreement", and together with the
2000 Master Agreement and the 2002 Master Agreement, the "Original Agreements").
The amount of the Commitments under each of the Original Agreements, together
with the Lease Balance for each of the Original Leases, are set forth on
Schedule 2 hereto. The parties hereto desire to amend and restate the Original
Agreements in their entirety pursuant hereto.
2. On or prior to the date hereof, AFG transferred its interests in the
Leased Property subject to the Original Lease, together with its interests in
the properties subject to the Original 1998 Lease and the Original 2000 Lease
(such properties being further identified on Schedule 2 attached hereto), to
Atlantic Equity Partners, Ltd., a Texas limited partnership (the "AFG
Transferee"), subject to the Original Lease, the Original 1998 Lease and the
Original 2000 Lease (collectively, the "Original Lease Agreements"),
respectively, and the Mortgages thereon.
3. The AFG Transferee will merge with the Lessor with the Lessor as the
surviving entity on the Effective Date. Simultaneously therewith, the parties
hereto desire to amend and restate the Original Agreements, the Original Lease
Agreements and the other Original Operative Documents in order, among other
things, to reflect the new Lessor and the increase in the amount of the
facility.
4. In accordance with the terms and provisions of this Master Agreement,
the Lease, the Loan Agreement and the other Operative Documents, (i) the Lessor
has acquired and may in the future acquire Land and, in certain cases, the
Buildings on such Land identified by Concord, as Construction Agent, from time
to time, and lease such Land and Buildings thereon to a Lessee, (ii) Concord, as
Construction Agent for the Lessor, has constructed and may in the future wish,
in certain instances, to construct Buildings on Land for the Lessor and, when
completed, the related Lessee wishes to lease such Buildings from the Lessor as
part of the Leased Properties under the Lease, (iii) Concord, as Construction
Agent, has obtained, and may in the future wish to obtain, and the Lessor has
been willing to provide and is willing to provide, funding for the acquisition
of the Land and Buildings, or, in certain instances, the construction of
Buildings, (iv) the Lessor has obtained, and in the future may wish to obtain,
and Lenders are willing to provide, from time to time, financing of a portion of
the funding of the acquisition of the Land and Buildings and, if applicable, the
construction of the Buildings and (v) the Lessees have been and are presently
willing to lease the Leased Properties from Lessor pursuant to the Lease.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and not
defined herein shall have the meanings assigned thereto in Appendix A hereto for
all purposes hereof; and the rules of interpretation set forth in Appendix A
hereto shall apply to this Master Agreement.
ARTICLE II
ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.
(a) Land. Subject to the terms and conditions of this Master
Agreement, with respect to each parcel of Land identified by a Lessee, as
Construction Agent, on the related Closing Date (i) the Lessor agrees to acquire
such interest in the related Land, and any Building thereon, from the applicable
Seller as is transferred, sold, assigned and conveyed to the Lessor pursuant to
the applicable Purchase Agreement or to lease such interest in the related Land,
and any Building thereon, from the applicable Ground Lessor as is leased to the
Lessor pursuant to the applicable Ground Lease, (ii) the Lessor hereby agrees to
lease, or sublease, as the case may be, such Land and any Building thereon to
the related Lessee pursuant to the Lease, and (iii) the related Lessee hereby
agrees to lease, or sublease, as the case may be, such Land, and any Building
thereon, from the Lessor pursuant to the Lease. With respect to certain IDB
Properties, (i) the applicable Authority may acquire such interest in the
related Land from the applicable Seller or Lessee, as applicable, as is
transferred, sold, assigned and conveyed to the Authority pursuant to the
applicable Purchase Agreement or assignment documents, (ii) the applicable
Authority will lease such Land to the Lessor pursuant to the related IDB Lease,
and (iii) the
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related Lessee hereby agrees to sublease such Land from the Lessor pursuant to
the Lease (it being understood that any reference in the Operative Documents to
the lease by a Lessee of an IDB Property shall be deemed to refer to the
sublease thereof pursuant to the Lease). With respect to certain IDB Properties,
after the Closing Date therefor, upon request of the related Lessee, (i) the
Lessor shall transfer to the applicable Authority such interest in such IDB
Property as the Lessor has, (ii) the applicable Authority will lease such IDB
Property to the Lessor pursuant to the related IDB Lease and (iii) the related
Lessee will sublease such IDB Property from the Lessor pursuant to the Lease
(and any reference in the Operative Documents to the lease by the related Lessee
of such IDB Property shall be deemed to refer to the sublease thereof pursuant
to the Lease). The obligation of the Lessor to enter into the IDB Documentation
with respect to any IDB Property is subject to the Lessor's and the Agent's
reasonable satisfaction with the form and substance of such IDB Documentation.
The Lessor and the Agent agree to promptly review the IDB Documentation for each
IDB Property after their receipt thereof, and the Lessor and the Agent agree
that their consent to such IDB Documentation shall not be unreasonably withheld,
conditioned or delayed.
(b) Building. With respect to each parcel of Land on which a
Building is to be constructed, subject to the terms and conditions of this
Master Agreement, from and after the Closing Date relating to such Land (i) the
Construction Agent agrees, pursuant to the terms of the Construction Agency
Agreement, to construct and install the Building on such Land for the Lessor
prior to the Scheduled Construction Termination Date, (ii) the Lenders and the
Lessor agree to fund the costs of such construction and installation (and
interest and yield thereon), (iii) the Lessor shall lease, or sublease, as the
case may be, such Building as part of such Leased Property to the related Lessee
pursuant to the Lease, and (iv) the related Lessee shall lease, or sublease, as
the case may be, such Building from the Lessor pursuant to the Lease.
(c) Memphis Property. The parties hereto hereby acknowledge that, as
of the date hereof, Concord has determined not to install certain equipment
originally planned to be installed at the Leased Property located in Memphis,
Tennessee at such Leased Property, and the parties hereto hereby agree that any
or all of the equipment acquired for such data center may be installed in any
other Leased Property, provided that the related Lessee gives the Agent written
notice of the location for such equipment within fifteen (15) days of the
transfer of such equipment to another Leased Property.
SECTION 2.2 Fundings of Purchase Price, Development Costs and
Construction Costs.
(a) Initial Funding and Payment of Purchase Price for Land and
Development Costs on Closing Date. Subject to the terms and conditions of this
Master Agreement, on the Closing Date for any Land, and any Building thereon,
each Lender shall make available to the Lessor its initial Loan with respect to
such Land, and any Building thereon, in an amount equal to the product of such
Lender's Commitment Percentage times the purchase price for such Land, and any
Building thereon, and the Construction Costs incurred by the Construction Agent,
as agent, through such Closing Date, which funds the Lessor shall use, together
with the Lessor's own funds in an amount equal to the product of the Lessor's
Commitment Percentage times the purchase price for the related Land and any
Building thereon, and the Construction Costs incurred by the Construction Agent,
as agent, through such Closing Date, to purchase such Land,
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and any Building thereon, from the applicable Seller pursuant to the applicable
Purchase Agreement or lease the Land and any Building thereon, from the
applicable Ground Lessor pursuant to the applicable Ground Lease, as the case
may be, and to pay to the Construction Agent the amount of such Construction
Costs, and the Lessor shall lease, or sublease, as the case may be, such Land to
the related Lessee pursuant to the Lease.
(b) Subsequent Fundings and Payments of Construction Costs during
Construction Term. Subject to the terms and conditions of this Master Agreement,
if a Building is to be constructed on Land, on each Funding Date following the
Closing Date for each such parcel of Land until the related Construction Term
Expiration Date, (i) each Lender shall make available to the Lessor a Loan in an
amount equal to the product of such Lender's Commitment Percentage times the
amount of Funding requested by the Construction Agent for such Funding Date,
which funds the Lessor hereby directs each Lender to pay over to the Agent, for
distribution to the Construction Agent as set forth in paragraph (d), and (ii)
the Lessor shall pay over to the Agent, for distribution to the Construction
Agent, its own funds (which shall constitute a part of, and an increase in, the
Lessor's Invested Amount with respect to such Leased Property) in an amount
equal to the product of the Lessor's Commitment Percentage times the amount of
Funding requested by the Construction Agent for such Funding Date.
(c) Aggregate Limits on Funded Amounts. The aggregate amount that the
Funding Parties shall be committed to provide as Funded Amounts under this
Master Agreement and the Loan Agreement shall not exceed (x) with respect to
each Leased Property the Construction Costs for such Leased Property (including,
without limitation, the costs of acquiring the Leased Property), or (y)
$97,500,000 in the aggregate. The aggregate amount that any Funding Party shall
be committed to fund under this Master Agreement and the Loan Agreement shall
not exceed the lesser of (i) such Funding Party's Commitment and (ii) such
Funding Party's Commitment Percentage of the aggregate Fundings requested under
this Master Agreement.
(d) Notice, Time and Place of Fundings. With respect to each Funding,
a Lessee or the Construction Agent, as the case may be, shall give the Lessor
and the Agent an irrevocable prior telephone (followed within one Business Day
with written) or written notice not later than (i) 11:00 a.m., Atlanta, Georgia
time, at least three Business Days prior to the proposed Closing Date or other
Funding Date, as the case may be, in the case of LIBOR Advances and (ii) 11:00
a.m., Atlanta, Georgia time on the proposed Closing Date or other Funding Date,
as the case may be, in the case of Base Rate Advances, pursuant, in each case,
to a Funding Request in the form of Exhibit A (a "Funding Request"), signed by
an Executive Officer of such Lessee or the Construction Agent, as the case may
be, specifying the Closing Date or subsequent Funding Date, as the case may be,
the amount of Funding requested, whether such Funding shall be a LIBOR Advance
or a Base Rate Advance or a combination thereof and the Rent Period(s) therefor.
All documents and instruments required to be delivered on such Closing Date
pursuant to this Master Agreement shall be delivered at the offices of Mayer,
Brown, Rowe & Maw, 190 South LaSalle Street, Chicago, Illinois 60603, or at such
other location as may be determined by the Lessor, the Construction Agent and
the Agent. Each Funding shall occur on a Business Day and shall be in an amount
equal to $250,000 or an integral multiple of $10,000 in excess thereof. All
remittances made by any Lender and the Lessor for any Funding shall be made in
immediately available funds by wire transfer to or, as is directed by, the
related Lessee
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or the Construction Agent, as the case may be, with receipt by the related
Lessee or the Construction Agent, as the case may be, not later than 12:00 noon,
Atlanta, Georgia time, on the applicable Funding Date, upon satisfaction or
waiver of the conditions precedent to such Funding set forth in Section 3; such
funds shall (1) in the case of the initial Funding on a Closing Date, be used
(A) to pay the purchase price to the applicable Seller for the related Land and
any Building thereon, or the initial ground lease payment to the applicable
ground lessor for the related Land subject to a ground lease, and (B) to pay the
Construction Agent for the payment or reimbursement of Construction Costs
incurred on or prior to the Closing Date, and (2) in the case of each subsequent
Funding be paid to the Construction Agent, for the payment of Construction Costs
incurred through such Funding Date and not previously paid.
(e) Lessee's Deemed Representation for Each Funding. Each Funding
Request by a Lessee or the Construction Agent shall be deemed a reaffirmation of
each Lessee's indemnity obligations in favor of the Indemnitees under the
Operative Documents and a representation and warranty from such Lessee or the
Construction Agent, as the case may be, to the Lessor, the Agent and the Lenders
that on the proposed Closing Date or Funding Date, as the case may be, (i) the
amount of Funding requested represents amounts owing in respect of the purchase
price of the related Land, and any Building thereon, and Construction Costs in
respect of the Leased Property (in the case of the initial Funding on a Closing
Date) or amounts that are then due to third parties in respect of the
Construction (in the case of any Funding), (ii) no Event of Default or Potential
Event of Default exists, and (iii) the representations and warranties of each
Obligor set forth in Section 4.1 are true and correct in all material respects
as though made on and as of such Funding Date, except to the extent such
representations or warranties relate solely to an earlier date, in which case
such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date.
(f) Not Joint Obligations. Notwithstanding anything to the contrary
set forth herein or in the other Operative Documents, each Lender's and the
Lessor's commitments shall be several, and not joint. In no event shall any
Funding Party be obligated to fund an amount in excess of such Funding Party's
Commitment Percentage of any Funding, or to fund amounts in the aggregate in
excess of such Funding Party's Commitment.
(g) Non-Pro Rata Fundings. Notwithstanding anything to the contrary
set forth in this Master Agreement, but subject to Section 2.2(f) above, at the
Agent's option, Fundings may be made by drawing on the Lessor's Commitment for
the Net Invested Amount in an amount greater than the percentage that such
Commitment represents of the aggregate Commitments. In such event, the Agent
will adjust the amount to be funded by each Funding Party on each Funding Date
to take into account such non pro-rata funding of the Net Invested Amount,
provided that the Lessor (with respect to the Allocated Amount) and each Lender
will fund their Pro Rata Share of such amount. In no event will the Lessor's Net
Invested Amount be less than 5.5% of the aggregate Funded Amounts or shall any
Funding Party have any obligation to fund any amount hereunder in excess of the
amount of such Funding Party's Commitment.
(h) Commitment Fee. The Lessees, joint and severally, shall pay to
the Agent, for the ratable benefit of each Funding Party based upon its
Commitment Percentage of the aggregate Commitments, a commitment fee (the
"Commitment Fee") for the period commencing on the Effective Date and including
the Funding Termination Date, payable
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quarterly in arrears on each Quarterly Payment Date and on the Funding
Termination Date in an amount equal to (i) the Commitment Fee Percentage, times
(ii) an amount equal to the aggregate Commitments, minus the aggregate Funded
Amounts as of such day times (iii) 1/360 times (iv) the number of days from and
including the Effective Date (in the case of the first Quarterly Payment Date)
or the immediately preceding Quarterly Payment Date (in the case of each other
Quarterly Payment Date) to, but excluding, such Quarterly Payment Date or the
Funding Termination Date, as applicable. During the Construction Period, the
Commitment Fee will be funded by Advances (subject to the terms and conditions
of this Master Agreement), which may be made without the requirement that a
Funding Request be delivered with respect thereto.
(i) Funding Conditions; Frequency of Funding Requests. The
Construction Agent agrees that it shall submit a Funding Request (i) within one
Business Day of each date on which Construction Costs that have been paid by the
Construction Agent, or for which the Construction Agent has recourse liability,
and, in either case, have not been previously paid or reimbursed by the Funding
Parties exceed $2,500,000 and (ii) on the 45th day (or, if such day is not a
Business Day, on the next succeeding Business Day) after delivery of the
preceding Funding Request. The obligation of the Funding Parties to make
Advances hereunder with respect to any Leased Property after the Closing Date
therefor to reimburse the Construction Agent for Construction Costs paid by the
Construction Agent, or to pay for Construction Costs for which the Construction
Agent has recourse liability, are subject only to the conditions precedent that
(i) the Agent has received from the Construction Agent the Funding Request
therefor and (ii) neither the Lessor nor the Construction Agent has
misappropriated any Funding or engaged in any willful misconduct. In the event
that the Agent notifies the Construction Agent that (i) an Event of Default or
Potential Event of Default has occurred and is continuing or (ii) there shall
have occurred any event that would reasonably be expected to have a Material
Adverse Effect since December 31, 2002, the Construction Agent shall not incur
any more recourse liability for, or pay from its own funds, Construction Costs,
and the Funding Parties shall have no obligation to make Advances for such
Construction Costs incurred after the receipt by the Construction Agent of such
notice. Nothing set forth in this Section 2.2(i) is intended to, or shall be
deemed to, abrogate the Construction Agent's agreement set forth in Section
4.1(c) of the Construction Agency Agreement.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon.
(a) The Lessor's Invested Amount for any Leased Property outstanding
from time to time shall be allocated on a pro rata basis (based on the aggregate
Funded Amounts), to the LIBOR Advances and the Base Rate Advances, and shall
accrue Yield at the Lessor Rate, computed using the actual number of days
elapsed and a 360 day year. If all or a portion of the principal amount of or
Yield on the Lessor's Invested Amount shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall,
without limiting the rights of the Lessor under the Lease, to the maximum extent
permitted by law, accrue Yield at the Overdue Rate, from the date of nonpayment
until paid in full (both before and after judgment).
(b) Each Lender's Funded Amount for any Leased Property outstanding
from time to time shall accrue interest as provided in the Loan Agreement.
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(c) During the Construction Term, in lieu of the payment of accrued
interest, on each Payment Date, each Lender's Funded Amount in respect of a
Construction Land Interest shall automatically be increased by the amount of
interest accrued and unpaid on the related Loans pursuant to the Loan Agreement
during the Rent Period ending immediately prior to such Payment Date. Similarly,
in lieu of the payment of accrued Yield, on each Payment Date, the Lessor's
Invested Amount in respect of a Construction Land Interest shall automatically
be increased by the amount of Yield accrued on the Lessor's Invested Amount in
respect of such Leased Property during the Rent Period ending immediately prior
to such Payment Date. Such increases in Funded Amounts shall occur without any
disbursement of funds by the Funding Parties and without the requirement that a
Funding Request be delivered with respect thereto.
(d) Three Business Days prior to the last day of each Rent Period,
Concord shall deliver (which delivery may be by facsimile) to the Lessor and the
Agent a notice substantially in the form of Exhibit I (each, a "Payment Date
Notice"), appropriately completed, specifying the allocation of the Funded
Amounts related to such Rent Period to LIBOR Advances and Base Rate Advances and
the Rent Periods therefor, provided that no such allocation to LIBOR Advances
shall be in an amount less than $500,000. Each such Payment Date Notice shall be
irrevocable. If no such notice is given, the Funded Amounts shall be allocated
to a LIBOR Advance with a Rent Period of three (3) months.
SECTION 2.4 Lessee Owner for Tax Purposes. With respect to each Leased
Property, it is the intent of the Lessees and the Funding Parties that for
federal, state and local tax purposes and bankruptcy law purposes the Lease
shall be treated as the repayment and security provisions of a loan by the
Lessor to the Lessees, and that the related Lessee shall be treated as the legal
and beneficial owner entitled to any and all benefits of ownership of such
Leased Property and all payments of Basic Rent during the Lease Term shall be
treated as payments of interest and principal. Nevertheless, each of Concord and
each other Lessee acknowledges and agrees that neither the Agent, nor any
Funding Party, nor any other Person has made any representations or warranties
concerning the tax, financial, accounting or legal characteristics or treatment
of the Operative Documents and that each of Concord and each other Lessee has
obtained and relied solely upon the advice of its own tax, accounting and legal
advisors concerning the Operative Documents and the accounting, tax, financial
and legal consequences of the transactions contemplated therein.
SECTION 2.5 Amounts Due Under Lease. With respect to each Leased
Property, anything else herein or elsewhere to the contrary notwithstanding, it
is the intention of the Lessees and the Funding Parties that: (i) subject to
clauses (ii) and (iii) below, the amount and timing of Basic Rent due and
payable from time to time from the related Lessee under the Lease shall be equal
to the aggregate payments due and payable with respect to interest on the Loans
in respect of such Leased Property and Yield on the Lessor's Invested Amount in
respect of such Leased Property on each Payment Date; (ii) if a Lessee elects
the Purchase Option with respect to any Leased Property or becomes obligated to
purchase any Leased Property under the Lease, the Funded Amounts in respect of
such Leased Property, all interest and Yield thereon and all other obligations
of the Lessees owing to the Funding Parties with respect to such Leased Property
shall be paid in full by the related Lessee, (iii) if a Lessee properly elects
the Remarketing Option with respect to any Leased Property, (A) such Lessee will
only be required to pay the Recourse Deficiency Amount with respect to such
Leased Property and the other
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amounts required to be paid pursuant to Section 14.6 of the Lease with respect
to such Leased Property, which amounts shall be used to pay to the Lenders the
principal of the A Loans with respect to such Leased Property and to the Lessor
the A Allocated Amount with respect to such Leased Property, and (B) such Lessee
shall only be required to pay to the Lenders the principal amount of the B Loans
with respect to such Leased Property and to the Lessor the B Allocated Amount
and the Lessor's Net Invested Amount with respect to such Leased Property, to
the extent of the proceeds of the sale of the related Leased Property in
accordance with Section 14.6 of the Lease; and (iv) upon an Event of Default
resulting in an acceleration of the Lessees' obligation to purchase the Leased
Properties under the Lease, the amounts then due and payable by the Lessees
under the Lease shall include all amounts necessary to pay in full the Loans,
and accrued interest thereon, the Lessor's Invested Amount and accrued Yield
thereon and all other obligations of the Lessees owing to the Agent and the
Funding Parties pursuant to the Operative Documents.
SECTION 2.6 Posting of Cash Collateral. On July 12, 2007, Concord hereby
agrees that it shall deliver, as security for the Obligations, cash in an amount
equal to the aggregate Funded Amounts outstanding on such date to an independent
bank or other financial institution reasonably satisfactory to Concord and the
Agent (the "Cash Collateral Trustee") to be held in a segregated account (the
"Cash Collateral Account") for the sole benefit of the Funding Parties pursuant
to a controlled account agreement in a form reasonably acceptable to Concord,
the Cash Collateral Trustee and the Agent. Funds in the Cash Collateral Account
shall be invested in Permitted Investments from time to time at the direction of
Concord, provided that the Cash Collateral Trustee shall have a first priority,
perfected interest in each such Permitted Investment. Concord hereby grants a
continuing security interest in the Cash Collateral Account, and in the funds
therein, to the Agent to secure all of the Obligations. Funds in the Cash
Collateral Account shall be paid to the Agent, for application in accordance
with the applicable provisions of the Loan Agreement upon the declaration of an
Event of Default or the acceleration of the obligations of the Lessees under the
Lease. Concord hereby agrees to execute and deliver such documents, agreements,
financing statements and certificates that the Agent or the Cash Collateral
Trustee may reasonably request in order to effect, evidence or perfect the
interests of the Agent and the Cash Collateral Trustee in the Cash Collateral
Account and the funds therein, together with an opinion of counsel in form and
substance reasonably satisfactory to the Agent as to the enforceability of the
controlled account agreement relating to the Cash Collateral Account and the
perfection and priority of the Cash Collateral Trustee's Lien thereon and on the
funds on deposit therein. If Concord has complied with the provisions of this
Section 2.6, and Concord requests the Agent and the Lessor in writing to release
the Mortgages and the Assignments of Lease and Rents on the Leased Properties,
the Agent and the Lessor shall execute and deliver such releases, termination
statements and other documents as Concord reasonably requests to evidence such
release, all at Concord's cost and expense. Upon the termination of the Lease
and the payment in full of all of the Obligations, all funds remaining in the
Cash Collateral Account shall be delivered to Concord.
SECTION 2.7 Actions on the Effective Date Hereof. On the Effective Date
(i) each Lender that was not previously a Lender party to an Original Agreement
shall fund an amount equal to such Lender's Commitment Percentage of the
aggregate Funded Amounts outstanding on the Effective Date, which amount shall
be paid in immediately available funds to the account of the Agent, and shall be
used to prepay, in part, the principal of the Loans made by SunTrust
8
Bank and (ii) the Lessor shall fund an amount equal to the remaining outstanding
principal balance of the Loans of SunTrust Bank (after giving effect to the
reduction thereof by application of the proceeds funded by the new Lenders
pursuant to the foregoing clause (i)), which amount may be funded by an
interbank transfer and shall be used to prepay the remaining SunTrust Bank Loans
in full. In addition, on the date hereof, the Original 2002 Lease, the Original
2000 Lease and the Original 1998 Lease shall be amended and restated pursuant to
the Lease, and all of the properties that were subject to the Original 1998
Lease, the Original 2000 Lease and the Original 2002 Lease shall become "Leased
Properties" for all purposes of the Operative Documents.
ARTICLE III
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties on each
Closing Date. The obligations of the Lessor and each Lender to carry out their
respective obligations under Section 2 of this Master Agreement to be performed
on the Closing Date with respect to any Land and any Building thereon shall be
subject to the fulfillment to the satisfaction of, or waiver by, each such party
hereto (acting directly or through its counsel) on or prior to such Closing Date
of the following conditions precedent, provided that the obligations of any
Funding Party shall not be subject to any conditions contained in this Section
3.1 which are required to be performed by such Funding Party; provided, further,
that notwithstanding anything to the contrary set forth in this Master Agreement
or any of the other Operative Documents, each party hereto acknowledges and
agrees that the provisions of this Section 3.1 shall not apply to the Leased
Properties listed on Schedule 2 hereof, such conditions having been satisfied on
the applicable Closing Date for each respective Leased Property:
(a) Documents. The following documents shall have been executed and
delivered by the respective parties thereto:
(i) Deed and Purchase Agreement. The related original Deed
duly executed by the applicable Seller and in recordable form, and
copies of the related Purchase Agreement, assigned to the Lessor,
shall each have been delivered to the Agent by the related Lessee, or
the related Ground Lease, duly assigned to the Lessor, shall have been
delivered to the Agent, as applicable (it being understood, that each
Purchase Agreement and each Ground Lease shall be reasonably
satisfactory in form and substance to the Lessor and the Agent).
(ii) Lease Supplement. The original of the related Lease
Supplement, duly executed by the related Lessee and the Lessor and in
recordable form, shall have been delivered to the Agent by such
Lessee.
(iii) Mortgage and Assignment of Lease and Rents. Counterparts
of the Mortgage (substantially in the form of Exhibit D attached
hereto), duly executed by the Lessor and in recordable form, shall
have been delivered to the Agent (which Mortgage shall secure all the
Lease Balance unless such mortgage is subject to a tax based on the
amount of indebtedness secured thereby, in which case the amount
secured will be limited to debt in an amount equal to such amount as
is negotiated in good faith by the Agent and Concord); and the
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Assignment of Lease and Rents (substantially in the form of Exhibit B
attached hereto) in recordable form, duly executed by the Lessor,
shall have been delivered to the Agent by the Lessor.
(iv) Security Agreement and Assignment. If Buildings are to be
constructed on the Land, (1) counterparts of a supplement to the
Construction Agency Agreement duly executed by the Construction Agent
and counterparts of the Security Agreement and Assignment
(substantially in the form of Exhibit C attached hereto), duly
executed by the Construction Agent, with an acknowledgment and consent
thereto satisfactory to the Lessor and the Agent duly executed by the
related General Contractor and the related Architect or Engineer, as
applicable, and complete copies of the related Construction Contract
and the related Architect's Agreement or Engineer's Agreement
certified by the Construction Agent, shall have been delivered to the
Lessor and the Agent (it being understood and agreed that if no
related Construction Contract or Architect's Agreement or Engineer's
Agreement exists on such Closing Date, such delivery shall not be a
condition precedent to the Funding on such Closing Date, and in lieu
thereof the Construction Agent shall deliver complete copies of such
Security Agreement and Assignment and consents concurrently with or
promptly after the Construction Agent's entering into such contracts)
and (2) a supplement to the Construction Agency Agreement, duly
executed by the Construction Agent and the Lessor, together with the
Construction Budget for such Leased Property, shall have been
delivered to the Agent.
(v) Survey. The related Lessee shall have delivered, or shall
have caused to be delivered, to the Lessor and the Agent, at such
Lessee's expense, an accurate survey certified to the Lessor and the
Agent in a form reasonably satisfactory to the Lessor and the Agent
and prepared within ninety (90) days of such Closing Date (or such
other longer time period agreed to by the Lessor and the Agent) by a
Person reasonably satisfactory to the Lessor and the Agent. Such
survey shall (1) be acceptable to the Title Insurance Company for the
purpose of providing extended coverage to the Lessor and a lender's
comprehensive endorsement to the Agent, (2) show no material
encroachments on the related Land by structures owned by others, and
no material encroachments from any part of such Leased Property onto
any land owned by others, and (3) disclose no state of facts
reasonably objectionable to the Lessor, the Agent or the Title
Insurance Company.
(vi) Title and Title Insurance. On such Closing Date, the
Lessor shall receive from a title insurance company acceptable to the
Lessor and the Agent an ALTA Owner's Policy of Title Insurance issued
by such title insurance company and the Agent shall receive from such
title insurance company an ALTA Mortgagee's Policy of Title Insurance
issued by such title insurance company, in each case, in the amount of
the projected cost of acquisition and construction of such Leased
Property, reasonably acceptable in form and substance to the Lessor
and the Agent, respectively (collectively, the "Title Policy"). The
Title Policy shall be dated as of such Closing Date, and, to the
extent permitted under
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Applicable Law, shall include such affirmative endorsements as the
Lessor or the Agent shall reasonably request.
(vii) Appraisal. The Agent shall have received a report of the
Appraiser (an "Appraisal"), paid for by the related Lessee, which
shall meet the requirements of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, shall be satisfactory to each
Funding Party and shall state in a manner satisfactory to each Funding
Party the estimated "as vacant" value of such Land and existing
Buildings or any Building to be constructed thereon. Such Appraisal
must show that the "as vacant" value of such Leased Property (if a
Building is to be constructed on the Land, determined as if the
Building had already been completed in accordance with the related
Plans and Specifications) is at least 45% of the total cost of such
Leased Property.
(viii) Environmental Audit and related Reliance Letter. The Agent
shall have received an Environmental Audit for such Leased Property,
which shall be conducted in accordance with ASTM standards and shall
not include a recommendation for further investigation and shall be
otherwise satisfactory to the Lessor and the Agent; and the firm that
prepared the Environmental Audit for such Leased Property shall have
delivered to the Agent a letter stating that the Lessor, the Agent and
the Lenders may rely upon such firm's Environmental Audit of such
Land, it being understood that the Lessor's and the Agent's acceptance
of any such Environmental Audit shall not release or impair Concord's
or any Lessee's obligations under the Operative Documents with respect
to any environmental liabilities relating to such Leased Property.
(ix) Evidence of Insurance. The Agent shall have received from
the related Lessee certificates of insurance evidencing compliance
with the provisions of Article VIII of the Lease or, if such Leased
Property is a Construction Land Interest, the provisions of Section
2.9 of the Construction Agency Agreement (including the naming of the
Agent and the Funding Parties as additional insured or loss payee as
set forth in Article VII of the Lease or Section 2.9 of the
Construction Agency Agreement, as applicable), in form and substance
reasonably satisfactory to the Lessor and the Agent.
(x) UCC Financing Statement; Recording Fees; Transfer Taxes.
The Agent shall have received satisfactory evidence of (i) the
execution (if required by applicable law) and delivery by the related
Lessee and the Lessor to Agent of a UCC-1 and, if required by
applicable law, UCC-2 financing statement to be filed with the
Secretary of State of the applicable State (or other appropriate
filing office) and the county where the related Land is located,
respectively, and such other Uniform Commercial Code financing
statements as any Funding Party deems necessary or desirable in order
to perfect such Funding Party's or the Agent's interests and (ii) the
payment of all recording and filing fees and taxes with respect to any
recordings or filings made of the related Deed, the Lease, the related
Lease Supplement, the related Mortgage and the related Assignment of
Lease and Rents.
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(xi) Opinions. An opinion of local counsel for the related
Lessee qualified in the jurisdiction in which such Leased Property is
located, substantially in the form set forth in Exhibit G attached
hereto, and containing such other matters as the parties to whom they
are addressed shall reasonably request, shall have been delivered and
addressed to Agent. To the extent requested by the Agent, opinions
supplemental to those delivered under Section 3.2(vi) of the 2002
Master Agreement and reasonably satisfactory to the Agent shall have
been delivered to the Agent and addressed to each of the Lessor, the
Agent and the Lenders.
(xii) Good Standing Certificates. The Agent shall have received
good standing certificates for the Lessor and the related Lessee from
the appropriate offices of the state where the related Land is
located.
(xiii) IDB Property. If such Leased Property is an IDB Property
or will otherwise be subject to industrial development or revenue
bonds, the IDB Documentation shall have been executed or will, when
applicable, be executed by the parties thereto, and shall be in form
and substance reasonably acceptable to the Agent, the Lessor and the
Lenders; provided that the consent of the Agent, the Lessor and the
Lenders shall not be unreasonably withheld, conditioned or delayed.
(b) Litigation. No action or proceeding shall have been instituted
or, to the knowledge of any Funding Party, threatened nor shall any
governmental action, suit, proceeding or investigation be instituted or
threatened before any Governmental Authority, nor shall any order, judgment
or decree have been issued or proposed to be issued by any Governmental
Authority, to set aside, restrain, enjoin or prevent the performance of
this Master Agreement or any transaction contemplated hereby or by any
other Operative Document or which would reasonably be expected to result in
a Material Adverse Effect.
(c) Legality. In the opinion of such Funding Party or its counsel,
the transactions contemplated by the Operative Documents shall not violate
any Applicable Law, and no change shall have occurred or been proposed in
Applicable Law that would make it illegal for such Funding Party to
participate in any of the transactions contemplated by the Operative
Documents.
(d) No Events. (i) No Event of Default, Potential Event of Default,
Event of Loss or Event of Taking relating to such Leased Property shall
have occurred and be continuing, (ii) no action shall be pending or
threatened by a Governmental Authority to initiate a Condemnation or an
Event of Taking, and (iii) there shall not have occurred any event that
would reasonably be expected to have a Material Adverse Effect since
December 31, 2002.
(e) Representations. Each representation and warranty of the parties
hereto or to any other Operative Document contained herein or in any other
Operative Document shall be true and correct in all material respects as
though made on and as of such Closing
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Date, except to the extent such representations or warranties relate solely
to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such
earlier date.
(f) Cutoff Date. No Closing Date shall occur after the Funding
Termination Date.
(g) Approval. The Agent shall not have rejected such Leased Property
for inclusion in the Lease by written notice to Concord.
(h) Commitments. After giving effect to the inclusion of such Leased
Property in the Transaction, the then aggregate unfunded portions of the
Construction Budgets for all of the Construction Land Interests do not
exceed the unfunded Commitments.
SECTION 3.2 Additional Conditions for Effectiveness. The effectiveness of
this Amended and Restated Master Agreement shall be subject to the satisfaction
of, or waiver by, each party hereto (acting directly or through its counsel) of
the following conditions precedent, provided that the obligations of any Funding
Party shall not be subject to any conditions contained in this Section 3.2 which
are required to be performed by such Funding Party:
(a) Documents. The following documents shall have been executed and
delivered by the respective parties thereto:
(i) Loan Agreement; Guaranty Agreement; Etc. Counterparts of
the Loan Agreement, duly executed by the Lessor, the Agent and each
Lender shall have been delivered to the Agent. An A Note and a B Note,
duly executed by the Lessor, and the Subsidiary Guaranty, duly
executed by the Subsidiary Guarantors, shall have been delivered to
the Agent. The Guaranty Agreement, duly executed by Concord, shall
have been delivered to the Agent. The Agent's Fee Letter, duly
executed by Concord, shall have been delivered to the Agent, and the
Lessor Yield Letter, duly executed by Concord, shall have been
delivered to the Lessor.
(ii) Master Agreement. Counterparts of this Master Agreement,
duly executed by the parties hereto, shall have been delivered to the
Agent.
(iii) Construction Agency Agreement. Counterparts of the
Construction Agency Agreement, duly executed by the parties thereto
shall have been delivered to the Agent.
(iv) Lease. Counterparts of the Lease, duly executed by the
Lessees party to this Master Agreement on the date hereof and the
Lessor, shall have been delivered to the Agent and the original,
chattel paper copy of the Lease shall have been delivered to the
Agent. Counterparts of amendments to the lease supplements filed
pursuant to the Original 1998 Lease, the Original 2000 Lease and the
Original 2002 Lease, duly executed by the related Lessee and the
Lessor shall have been delivered to the Agent.
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(v) Lessee's Resolutions and Incumbency Certificate, etc. The
Agent shall have received (x) a certificate of the Secretary or an
Assistant Secretary of each of Guarantor, each Lessee party hereto on
the date hereof and each other Obligor, attaching and certifying as to
(i) the Board of Directors' (or appropriate committee's) resolution
duly authorizing the execution, delivery and performance by it of each
Operative Document to which it is or will be a party, and (ii) the
incumbency and signatures of persons authorized to execute and deliver
such documents on its behalf.
(vi) Lessor's Consents and Incumbency Certificate, etc. The
Agent and Concord shall have received a certificate of the Secretary
or an Assistant Secretary of the Lessor attaching and certifying as to
(i) the consents of the managers of the Lessor duly authorizing the
execution, delivery and performance by it of each Operative Document
to which it is or will be a party, and (ii) the incumbency and
signatures of persons authorized to execute and deliver such documents
on its behalf.
(b) Litigation. No action or proceeding shall have been instituted
or, to the knowledge of any Funding Party, threatened nor shall any
governmental action, suit, proceeding or investigation be instituted or
threatened before any Governmental Authority, nor shall any order, judgment
or decree have been issued or proposed to be issued by any Governmental
Authority, to set aside, restrain, enjoin or prevent the performance of
this Master Agreement or any transaction contemplated hereby or by any
other Operative Document or which would reasonably be expected to result in
a Material Adverse Effect.
(c) Legality. In the opinion of such Funding Party or its counsel,
the transactions contemplated by the Operative Documents shall not violate
any Applicable Law, and no change shall have occurred or been proposed in
Applicable Law that would make it illegal for such Funding Party to
participate in any of the transactions contemplated by the Operative
Documents.
(d) No Events. (i) No Event of Default or Potential Event of Default
shall have occurred and be continuing and (ii) there shall not have
occurred any event that would reasonably be expected to have a Material
Adverse Effect since December 31, 2002.
(e) Representations. Each representation and warranty of the parties
hereto or to any other Operative Document contained herein or in any other
Operative Document shall be true and correct in all material respects as
though made on and as of the Effective Date, except to the extent such
representations or warranties relate solely to an earlier date, in which
case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date.
SECTION 3.3 Conditions to the Obligations of Lessee. The obligations of
any Lessee to lease a Leased Property from the Lessor are subject to the
fulfillment on the related
14
Closing Date to the satisfaction of, or waiver by, such Lessee, of the following
conditions precedent:
(a) General Conditions. The conditions set forth in Section 3.1 for
any Land that is not a Leased Property (or a portion of a Leased Property)
as of the Effective Date and Section 3.2 that require fulfillment by the
Lessor or the Lenders shall have been satisfied, and the execution and
delivery of the Operative Documents to be executed by the Lessor or the
Lenders in connection with such Leased Property.
(b) Legality. In the opinion of such Lessee or its counsel, the
transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in
Applicable Law that would make it illegal for such Lessee to participate in
any of the transactions contemplated by the Operative Documents.
(c) Purchase Agreement; Ground Lease. For any Land that is not a
Leased Property (or a portion of a Leased Property) as of the Effective
Date, the Purchase Agreement and, if applicable, the Ground Lease and all
documents to be delivered under the Purchase Agreement or Ground Lease,
including title insurance, survey and environmental audit, shall be
reasonably satisfactory to such Lessee.
SECTION 3.4 Conditions to the Obligations of the Funding Parties on each
Funding Date. The obligations of the Lessor and each Lender to carry out their
respective obligations under Section 2 of this Master Agreement to be performed
on each Funding Date shall be subject to the fulfillment to the satisfaction of,
or waiver by, each such party hereto (acting directly or through their
respective counsel) on or prior to each such Funding Date of the following
conditions precedent, provided that the obligations of any Funding Party shall
not be subject to any conditions contained in this Section 3.4 which are
required to be performed by such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have received
from the Construction Agent or a Lessee the Funding Request therefor
pursuant to Section 2.2(d).
(b) Condition Fulfilled. As of such Funding Date, the condition set
forth in Section 3.1(d) shall have been satisfied.
(c) Representations. As of such Funding Date, both before and after
giving effect to the Funding requested by the Construction Agent or a
Lessee on such date, the representations and warranties that the
Construction Agent or such Lessee is deemed to make pursuant to Section
2.2(e) shall be true and correct on and as of such Funding Date as though
made on and as of such Funding Date, except to the extent such
representations or warranties relate solely to an earlier date, in which
case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date.
(d) No Bonded Stop Notice or Filed Mechanics Lien. As of such
Funding Date, and as to any Funded Amount requested for any Leased Property
on such Funding Date, (i) none of the Lessor, the Agent or any Lender has
received (with respect to such
15
Leased Property) a bonded notice to withhold Loan funds that has not been
discharged by the related Lessee or the Construction Agent, and (ii) no
mechanic's liens or materialman's liens have been filed against such Leased
Property in an amount in excess of 15% of the Construction Budget for such
Leased Property that have not been discharged by the related Lessee, bonded
over in a manner reasonably satisfactory to the Agent or insured over by
the Title Insurance Company.
(e) Lease Supplement. If the Funding relates to a Building that will
be leased under a Lease Supplement separate from the Lease Supplement for
the related Land, the original of such separate Lease Supplement, duly
executed by the related Lessee and the Lessor and in recordable form, shall
have been delivered to the Agent.
SECTION 3.5 Completion Date Conditions. The occurrence of the Completion
Date with respect to any Leased Property shall be subject to the fulfillment to
the satisfaction of, or waiver by, the Required Funding Parties (acting directly
or through their respective counsel) of the following conditions precedent:
(a) Title Policy Endorsements. The Construction Agent shall have
furnished to the Agent, for the benefit of the Funding Parties, the
following endorsements to the related Title Policy (each of which shall be
subject to no exceptions other than those reasonably acceptable to the
Agent): a date-down endorsement (redating and confirming the coverage
provided under the Title Policy and each endorsement thereto) and a "Form
9" endorsement (if available in the applicable jurisdiction), in each case,
effective as of a date not earlier than the date of completion of the
Construction. The Construction Agent shall also deliver to the Agent copies
of a certificate or certificates of occupancy for such Leased Property or
other legally equivalent permission to occupy such Leased Property.
(b) Construction Completion. Any related Construction shall have been
completed substantially in accordance with the related Plans and
Specifications (subject to minor punch list requirements), the related Deed
and all Applicable Laws, and such Leased Property shall be ready for
occupancy and operation. All fixtures, equipment and other property
contemplated under the Plans and Specifications to be incorporated into or
installed in such Leased Property shall have been substantially
incorporated or installed, free and clear of all Liens except for Permitted
Liens. The Construction Agent shall have provided to the Agent a list, in
reasonable detail, of the Funded Equipment.
(c) Construction Agent Certification. The Construction Agent shall
have furnished the Lessor and the Agent with a certification of the
Construction Agent (substantially in the form of Exhibit H) that:
(i) all amounts owing to third parties for the related
Construction have been paid in full (other than contingent obligations
for which the Construction Agent has made adequate reserves), and no
litigation or proceedings are pending, or to the best of the
Construction Agent's knowledge, are threatened, against such Leased
Property or the Construction Agent or the related Lessee which could
reasonably be expected to have a Material Adverse Effect;
16
(ii) all material consents, licenses and permits and other
governmental authorizations or approvals required for such
Construction and operation of such Leased Property have been obtained
and are in full force and effect;
(iii) such Leased Property has available all services of public
facilities and other utilities necessary for use and operation of such
Leased Property for its intended purposes including, without
limitation, adequate water, gas and electrical supply, storm and
sanitary sewerage facilities, telephone, other required public
utilities and means of access between the related Building and public
highways for pedestrians and motor vehicles;
(iv) all material agreements, easements and other rights,
public or private, which are necessary to permit the lawful use and
operation of such Leased Property as the related Lessee intends to use
such Leased Property under the Lease and which are necessary to permit
the lawful intended use and operation of all then intended utilities,
driveways, roads and other means of egress and ingress to and from the
same have been obtained and are in full force and effect and neither
the Construction Agent nor the related Lessee has any knowledge of any
pending modification or cancellation of any of the same; and the use
of such Leased Property does not depend on any variance, special
exception or other municipal approval, permit or consent that has not
been obtained and is in full force and effect for its continuing legal
use; and
(v) to the best of the Construction Agent's knowledge, such
Leased Property is in compliance in all material respects with all
applicable zoning laws and regulations.
The parties hereto acknowledge that the conditions set forth in this
Section 3.5 have been satisfied with respect to the Leased Property that is
subject to the Original 2000 Lease.
SECTION 3.6 Addition of Lessees. After the date hereof, Subsidiaries of
Concord may become Lessees hereunder and under the other Operative Documents
upon satisfaction of the following conditions precedent:
(a) such Subsidiary and the Guarantor shall have executed and
delivered to the Agent and the Lessor a Joinder Agreement, substantially in
the form of Exhibit E;
(b) such Subsidiary shall have delivered to each of the Agent and the
Lessor (x) a certificate of the Secretary or an Assistant Secretary of such
Subsidiary, attaching and certifying as to (i) the Board of Directors'
resolution duly authorizing the execution, delivery and performance by it
of each Operative Document to which it is or will be a party, (ii) the
incumbency and signatures of persons authorized to execute and deliver such
documents on its behalf, (iii) its certificate of incorporation, certified
as of a recent date by the Secretary of State of its incorporation and (iv)
its by-laws, and (y) good standing certificates from the appropriate
offices of the States of such Subsidiary's incorporation and principal
place of business;
17
(c) such Subsidiary shall have delivered an opinion of Dechert LLP or
other counsel reasonably acceptable to the Agent and the Funding Parties,
addressed to each of the Lessor, the Agent and the Lenders, substantially
in the form of the opinions delivered pursuant to the first sentence of
Section 3.2(vi) of the 2002 Master Agreement; and
(d) the Agent, the Lessor and the Lenders shall have received such
other documents, certificates and information as any of them shall have
reasonably requested.
ARTICLE IV
REPRESENTATIONS
SECTION 4.1 Representations of the Obligors. Effective as of the
Effective Date, as of each Closing Date and as of each Funding Date, each
Obligor represents and warrants to each of the other parties hereto as follows
(provided that Concord shall not make the representation set forth in Section
4.1(o)):
(a) Corporate Existence and Power. Each of Concord and its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, (ii) has the
corporate or other necessary power and authority, and the legal right, to own
and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, except to the extent that
the failure to have such legal right would not be reasonably expected to have a
Material Adverse Effect, (iii) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not be reasonably expected to have a
Material Adverse Effect, and (iv) is in compliance with all Requirements of Law,
except to the extent that the failure to comply therewith would not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
(b) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by each Obligor of this Master Agreement and
the other Operative Documents to which such Obligor is party (i) are within the
corporate or other applicable powers of such Obligor, (ii) have been duly
authorized by all necessary corporate or other applicable action, (iii) require
no action by or in respect of, or filing with, any governmental body, agency or
official and (iv) do not contravene, or constitute a default under, any
provision of Requirement of Law or Contractual Obligation of such Obligor that
would reasonably be expected to have a Material Adverse Effect or (v) result in
the creation or imposition of any Lien on any of the properties or revenues of
such Obligor or any of its Subsidiaries (other than any Lien created by the
Operative Documents).
(c) Binding Effect. This Master Agreement and the other Operative
Documents to which any Obligor is party constitute valid and binding agreements
of such Obligor and will constitute valid and binding obligations of such
Obligor, in each case enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
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(d) Material Adverse Effect. Since December 31, 2002, there has not
occurred any event that would reasonably be expected to have a Material Adverse
Effect.
(e) Litigation.
(i) There is no action, suit or proceeding pending against, or to the
knowledge of such Obligor threatened against or affecting, any Obligor or
any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official (A) which could reasonably be expected to have any
Material Adverse Effect or (B) which in any manner draws into question the
validity or enforceability of this Master Agreement or any other Operative
Document.
(ii) Without limiting the generality of clause (i) of this paragraph
(e), (A) there is not any Covered Administrative Action which is currently
in effect and (B) there is no examination, investigation or proceeding by
any Banking Agency pending against, or to the knowledge of such Obligor
threatened against or affecting, such Obligor or any of its Subsidiaries in
which there is a reasonable likelihood of any Covered Administrative Action
that, in the case of either (A) or (B), could reasonably be expected to
have a Material Adverse Effect.
(f) Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Code in respect of any Plan, (ii)
failed to make any contribution or payment to any Plan or Multiemployer Plan or
in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
(g) Taxes. Each Obligor and its Subsidiaries have filed all
United States Federal income tax returns (or timely extension requests therefor)
and all other material tax returns (or timely extension requests therefor) which
are required to be filed by them and have paid, to the extent that the failure
to pay could reasonably be expected to have a Material Adverse Effect, (i) all
taxes shown to be due and payable on said returns or (ii) all taxes shown to be
due and payable on any assessments of which it has received notice made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, and no tax Lien has
been filed, and, to the best knowledge of such Obligor no claim is being
asserted, with respect to any such tax, fee or other charge, except to the
extent that such liens or claims would not be reasonably expected to have a
Material Adverse Effect. The charges, accruals and reserves in accordance with
GAAP on the books of such Obligor and its Subsidiaries in respect of taxes or
other governmental charges are, in the reasonable opinion of such Obligor,
adequate.
(h) Subsidiaries. Each of Concord's Subsidiaries is an entity duly
incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction
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of incorporation, and has all corporate or other necessary powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
(i) Not an Investment Company. No Obligor is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(j) Full Disclosure. All information heretofore furnished by any
Obligor to the Agent or any Funding Party for purposes of or in connection with
this Master Agreement or any transaction contemplated hereby, taken as a whole,
does not contain, and all such information hereafter furnished by any Obligor to
the Agent or any Funding Party will not contain, any untrue statement of
material fact and does not omit and will not omit to state any material fact
necessary to make the statements therein in light of the circumstances in which
they were made, not misleading.
(k) Use of Proceeds. The proceeds of the Funded Amounts made under
this Master Agreement will be used by the Construction Agent or a Lessee for the
purposes described in Sections 2.2 and 2.7. None of such proceeds will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U.
(l) Absence of Defaults. No event has occurred and is continuing
which constitutes a Potential Event of Default or an Event of Default. No event
has occurred and is continuing which constitutes, or which with the passage of
time or giving of notice or both would constitute, a default or event of default
by any Obligor or any Subsidiary under any Material Contract or judgment, decree
or order to which such Obligor or one or more of its Subsidiaries is a party or
by which such Obligor or one or more of its Subsidiaries or any of their
respective properties may be bound or which would require such Obligor or one or
more of its Subsidiaries to make any payment thereunder prior to the scheduled
maturity date therefor, except in cases in which any such default or event of
default would not, in any instance or in the aggregate, be reasonably expected
to have a Material Adverse Effect.
(m) Financial Condition. The audited consolidated balance sheet of
Concord and its consolidated Subsidiaries as of December 31, 2002 and the
audited consolidated statements of earnings and statements of cash flows for the
year ended December 31, 2002 have heretofore been furnished to the Agent. Such
financial statements (including the notes thereto) (i) have been audited by
Ernst & Young LLP, (ii) have been prepared in accordance with GAAP consistently
applied throughout the periods covered thereby and (iii) present fairly (on the
basis disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of Concord and its
consolidated Subsidiaries as of such date and for such periods. Since December
31, 2002, there has been no material adverse change in the business, financial
position, results of operations or prospects of Concord and its consolidated
Subsidiaries, taken as a whole.
(n) Rights in Respect of the Leased Property. No Lessee is a party to
any contract or agreement to sell any interest in any Leased Property or any
part thereof, other than as contemplated by the Operative Documents or as
disclosed in the Title Policy.
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(o) Environmental Matters - General. Except to the extent otherwise
disclosed in Schedule 4.1(o),
(i) To the best of each Obligor's knowledge, the properties of such
Obligor and its Subsidiaries do not contain, and have not previously
contained, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws or
(B) could give rise to liability under applicable Environmental Laws,
except in cases in which any such violation or liability is not reasonably
likely to result, in any given instance or in the aggregate, in liability
of such Obligor or any Subsidiary in excess of $10,000,000;
(ii) To the best of each Obligor's knowledge, such properties and all
operations conducted in connection therewith are in compliance, and have
been in compliance, with all applicable Environmental Laws, except in cases
in which any failure to be in compliance is not reasonably likely to
result, in any given instance or in the aggregate, in liability of such
Obligor or any Subsidiary in excess of $10,000,000, and there is no
contamination at, under or about such properties or such operations which
could materially interfere with the continued operation of such properties
or materially impair the fair saleable value thereof;
(iii) Neither any Obligor nor any Subsidiary has received any notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of its properties or the operations conducted in
connection therewith, nor does any Obligor or any Subsidiary have knowledge
or reason to believe that any such notice will be received or is being
threatened, except in cases in which the liability of such Obligor or any
Subsidiary, in any given instance or in the aggregate, is not reasonably
likely to exceed $10,000,000;
(iv) No Hazardous Materials have been transported or disposed of from
the properties of any Obligor or its Subsidiaries in violation of, or in a
manner or to a location which could give rise to liability under,
Environmental Laws, nor have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of such properties in
violation of, or in a manner that could give rise to liability under, any
applicable Environmental Laws, except in cases in which the liability of
such Obligor or any Subsidiary, in any given instance or in the aggregate,
is not reasonably likely to exceed $10,000,000;
(v) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of any Obligor, threatened, under any
Environmental Law to which such Obligor or any Subsidiary is or will be
named as a party with respect to such properties or operations conducted in
connection therewith, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental
Law with respect to such properties or such operations, except in cases in
which the liability of such Obligor or any Subsidiary, in any given
instance or in the aggregate, is not reasonably likely to exceed
$10,000,000; and
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(vi) There has been no release, or to the best of any Obligor's
knowledge, the threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws, except in cases in which the
liability of such Obligor or any Subsidiary, in any given instance or in
the aggregate, is not reasonably likely to exceed $10,000,000.
(p) Hazardous Materials - Leased Properties.
(i) To the best knowledge of the related Lessee, except as
described in the related Environmental Audit, on the Closing Date for
each Leased Property, there are no Hazardous Materials present at,
upon, under or within such Leased Property or released or transported
to or from such Leased Property (except in compliance in all material
respects with all Applicable Law).
(ii) On the related Closing Date, no Governmental Actions have
been taken or are in process or have been threatened, which could
reasonably be expected to subject such Leased Property or any Funding
Party to any Claims or Liens with respect to such Leased Property
under any Environmental Law or would otherwise have a Material Adverse
Effect.
(iii) The related Lessee has, or will obtain on or before the
date required by Applicable Law, all Environmental Permits necessary
to operate each Leased Property, if any, in accordance with
Environmental Laws and is complying with and has at all times complied
with all such Environmental Permits, except to the extent the failure
to obtain such Environmental Permits or to so comply would not have a
Material Adverse Effect.
(iv) Except as set forth in the related Environmental Audit
or in any notice subsequently furnished by the related Lessee to the
Agent and approved by the Agent in writing prior to the respective
times that the representations and warranties contained herein are
made or deemed made hereunder, no notice, notification, demand,
request for information, citations, summons, complaint or order has
been issued or filed to or with respect to the related Lessee, no
penalty has been assessed on the related Lessee and no investigation
or review is pending or, to its best knowledge, threatened by any
Governmental Authority or other Person in each case relating to any
Leased Property with respect to any alleged material violation or
liability of the related Lessee under any Environmental Law. To the
best knowledge of the related Lessee, no material notice,
notification, demand, request for information, citations, summons,
complaint or order has been issued or filed to or with respect to any
other Person, no material penalty has been assessed on any other
Person and no investigation or review is pending or threatened by any
Governmental Authority or other Person relating to any Leased Property
with respect to any alleged material violation or liability under any
Environmental Law by any other Person.
(v) Each Leased Property and each portion thereof are presently
in compliance in all material respects with all Environmental Laws,
and there are no
22
present or, to the related Lessee's best knowledge, past facts,
circumstances, activities, events, conditions or occurrences regarding
such Leased Property (including without limitation the release or
presence of Hazardous Materials) that would reasonably be anticipated
to (A) form the basis of a material Claim against such Leased
Property, any Funding Party or the related Lessee, (B) cause such
Leased Property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law, (C)
require the filing or recording of any notice or restriction relating
to the presence of Hazardous Materials in the real estate records in
the county or other appropriate municipality in which such Leased
Property is located, other than notices filed in the ordinary cause of
business, or (D) prevent or interfere with the continued operation and
maintenance of such Leased Property as contemplated by the Operative
Documents.
For purposes of this Section 4.1(p), the term "material" with respect to any
event or circumstance means that such event or circumstance would reasonably be
anticipated to result in criminal or material liability on the part of any
Funding Party, or to otherwise have a Material Adverse Effect.
(q) Leased Property. The present condition of each Leased Property
conforms in all material respects with all conditions or requirements of all
existing permits and approvals issued with respect to such Leased Property, and
the related Lessee's future intended use of such Leased Property under the Lease
does not, in any material respect, violate any Applicable Law. No material
notices, complaints or orders of violation or non-compliance have been issued or
threatened or contemplated by any Governmental Authority with respect to any
Leased Property or any present or intended future use thereof. All material
agreements, easements and other rights, public or private, which are necessary
to permit the lawful use and operation of each Leased Property as the related
Lessee intends to use such Leased Property under the Lease and which are
necessary to permit the lawful intended use and operation of all presently
intended utilities, driveways, roads and other means of egress and ingress to
and from the same have been, or to the related Lessee's best knowledge will be,
obtained and are or will be in full force and effect, and the related Lessee has
no knowledge of any pending material modification or cancellation of any of the
same.
(r) Flood Hazard Areas. No portion of any Leased Property is located
in an area identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, or if any Building located on any
Leased Property is located in an area identified as a special flood hazard area
by the Federal Emergency Management Agency or other applicable agency, then
flood insurance has been obtained for such Leased Property in accordance with
the Lease and in accordance with the National Flood Insurance Act of 1968, as
amended.
SECTION 4.2 Survival of Representations and Effect of Fundings.
(a) Survival of Representations and Warranties. All representations
and warranties made in Section 4.1 shall survive delivery of the Operative
Documents and every Funding, and shall remain in effect until all of the
Obligations are fully and irrevocably paid.
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(b) Each Funding a Representation. Each Funding accepted by a Lessee
or the Construction Agent shall be deemed to constitute a representation and
warranty by each Obligor to the effect of Section 4.1.
SECTION 4.3 Representations of the Lessor. Effective as of the Effective
Date, as of each Closing Date and as of each Funding Date, in each case, with
respect to each of the Leased Properties, the Lessor represents and warrants to
the Agent, the Lenders, Concord and the other Lessees as follows:
(a) Securities Act. The interest being acquired or to be acquired by
the Lessor in such Leased Property is being acquired for its own account,
without any view to the distribution thereof or any interest therein, provided
that the Lessor shall be entitled to assign, convey or transfer its interest in
accordance with Section 6.1.
(b) Due Organization, etc. The Lessor is a limited liability company
duly organized and validly existing in good standing under the laws of Delaware
and is duly qualified and in good standing in each jurisdiction where the
failure to be so qualified would materially adversely affect the Lessor's
ability to perform its obligations under the Operative Documents to which it is,
or will be, a party and has full power, authority and legal right to execute,
deliver and perform its obligations under the Lease, this Master Agreement and
each other Operative Document to which it is or will be a party.
(c) Due Authorization; Enforceability, etc. This Master Agreement and
each other Operative Document to which the Lessor is or will be a party have
been or will be duly authorized, executed and delivered by or on behalf of the
Lessor and are, or upon execution and delivery will be, legal, valid and binding
obligations of the Lessor enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by general equitable principles.
(d) No Conflict. The execution and delivery by the Lessor of the
Lease, this Master Agreement and each other Operative Document to which the
Lessor is or will be a party, are not or will not be, and the performance by the
Lessor of its obligations under each will not be, inconsistent with its
organizational documents, do not and will not contravene any Applicable Law
applicable generally to parties providing financing and do not and will not
contravene any provision of, or constitute a default under, any material
Contractual Obligation of Lessor, do not and will not require the consent or
approval of, the giving of notice to, the registration with or taking of any
action in respect of or by, any Governmental Authority applicable generally to
parties providing financing, except such as have been obtained, given or
accomplished, and the Lessor possesses all requisite regulatory authority to
undertake and perform its obligations under the Operative Documents, in each
case if such contravention, default or failure to obtain, give or accomplish
such consent, approval, notice or registration would materially adversely affect
the Lessor's ability to perform its obligations under the Operative Documents to
which it is or will be a party.
(e) Litigation. There are no pending or, to the knowledge of the
Lessor, threatened actions or proceedings against the Lessor before any court,
arbitrator or administrative
24
agency with respect to any Operative Document or that would have a material
adverse effect upon the ability of the Lessor to perform its obligations under
this Master Agreement or any other Operative Documents to which it is or will be
a party.
(f) Lessor Liens. No Lessor Liens (other than those created by the
Operative Documents) exist on any Closing Date on the Leased Property, or any
portion thereof, and the execution, delivery and performance by the Lessor of
this Master Agreement or any other Operative Document to which it is or will be
a party will not subject any Leased Property, or any portion thereof, to any
Lessor Liens (other than those created by the Operative Documents).
(g) Employee Benefit Plans. The Lessor is not and will not be making
its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1) of the Code).
(h) No Offering. The Lessor has not offered the Notes to any Person
in any manner that would subject the issuance thereof to registration under the
Securities Act or any applicable state securities laws.
(i) Investment Company. The Lessor is not an "investment company" or
a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(j) Financial Statements. The financial statements provided to the
Guarantor by the Lessor or by STI have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby. There are no
material transactions, agreements or accounts that have not been properly
recorded in the accounting records underlying the financial statements of the
Lessor provided to the Guarantor by the Lessor.
(k) Sole Member. SunTrust Banks, Inc. ("STI") is the sole member of
the Lessor and, in its capacity as the sole member of Lessor, is entitled to the
profits and the losses of the Lessor. There is only one class of equity in the
Lessor. Profits or losses resulting from the Lessor's equity investment in the
Transaction are included in the overall profits and losses of the Lessor.
(l) Fair Value. As of the Effective Date, the gross fair value of the
Leased Properties is less than half of the total fair value of the assets of the
Lessor. The "fair value" of the assets of the Lessor has been determined as
follows: (i) by excluding the value of any asset within a Silo (as defined in
paragraph (m) below), (ii) for those transactions accounted for by the Lessor as
leveraged leases pursuant to FAS 13, the fair value of the related leased
properties have been determined on a gross basis prior to the application of
leveraged lease accounting (recognizing that equity investments by the Lessor in
another entity, including those accounted for as leveraged leases, should not be
grossed up), (iii) the determination of fair value of the Lessor's assets leased
by the Lessor under operating leases to lessees has been determined without
regard to residual value guarantees, remarketing arrangements, non-recourse
financings, purchase options or any other contractual provisions, whether
between the Lessor and Concord or other parties, that might otherwise impact the
fair value of the Lessor's assets, and (iv) for
25
assets other than the Leased Properties that qualify as finance leases, fair
value has been determined as the sum of the fair values of the corresponding
finance lease receivables and unguaranteed residual values.
(m) Source of Funds. The Lessor has not financed an amount equal to
or greater than 95% of the fair value of the Leased Properties, on either an
individual or an aggregate basis, with the proceeds of non-recourse debt or the
sale of participations that are recourse solely to a specified transaction,
targeted equity or any other type of funding that would result in the Leased
Properties being essentially the only source of repayment (in aggregate, a
"Silo").
(n) Consolidation. The Lessor is consolidated on a voting interest
basis with STI, its sole member, which is a publicly traded corporation, in
accordance with FIN 46 and the Leased Properties are included therein. The
Lessor is included in STI's consolidated financial statements filed with the
Securities and Exchange Commission.
(o) Minimum Lease Payments. At all times from, and including, the
Effective Date through, and including June 30, 2003, the "present value of the
minimum lease payments", as defined in FAS 13, as it relates to the Lessor,
including any minimum lease payments represented by residual value insurance, do
not, and will not, equal or exceed 97% of the fair value of any Leased Property.
SECTION 4.4 Representations of each Lender. Effective as of the Effective
Date, as of each Closing Date and as of each Funding Date, each Lender
represents and warrants to the Lessor, to Concord and to the other Lessees as
follows:
(a) Securities Act. The interest being acquired or to be acquired by
such Lender in the Funded Amounts is being acquired for its own account,
without any view to the distribution thereof or any interest therein,
provided that such Lender shall be entitled to assign, convey or transfer
its interest in accordance with Section 6.2.
(b) Employee Benefit Plans. Such Lender is not and will not be making
its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA, or
"plan" (as defined in Section 4975(e)(1) of the Code).
ARTICLE V
COVENANTS OF OBLIGORS AND THE LESSOR
SECTION 5.1 Financial Statements. Concord shall deliver to the Agent:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of Concord, a consolidated balance sheet of Concord and
its Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, changes in shareholder's equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on without any material
qualification by Ernst & Young LLP or other independent public accountants of
nationally
26
recognized standing, together with an internally prepared consolidating balance
sheet of Concord as of the end of such fiscal year and the related consolidating
statement of income for such fiscal year;
(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of Concord,
Concord's quarterly reporting package which shall include a consolidated and
consolidating balance sheet of Concord and its Consolidated Subsidiaries as of
the end of such quarter and the related consolidated and consolidating statement
of income, and consolidated statements of changes in shareholder's equity and
cash flows for the portion of Concord's fiscal year ended at the end of such
quarter, setting forth in the case of such statements of income, changes in
shareholder's equity and cash flows, in comparative form the figures for the
corresponding portion of Concord's previous fiscal year, all certified as to
fairness of presentation, GAAP and consistency by the chief financial officer or
the chief accounting officer of Concord;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of Concord on behalf of
Concord in substantially the form of Exhibit J (i) setting forth in reasonable
detail the calculations required to establish whether Concord was in compliance
with the requirements of Sections 5.2, 5.3 and 5.4 on the date of such financial
statements and (ii) stating whether, to such officer's knowledge, any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which Concord is taking or proposes to
take with respect thereto;
(d) within five days after any financial officer of Concord obtains
knowledge of any Default, if such Default is then continuing, a certificate of
the chief financial officer or the chief accounting officer of Concord setting
forth the details thereof and the action which Concord is taking or proposes to
take with respect thereto;
(e) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or the chief accounting officer of Concord setting forth
27
details as to such occurrence and action, if any, which Concord or applicable
member of the ERISA Group is required or proposes to take; and
(f) from time to time such additional information regarding the
financial position or business of Concord and its Subsidiaries as the Agent, at
the request of any Funding Party, may reasonably request.
SECTION 5.2 EBITR Ratio. Concord shall cause the ratio of Consolidated
EBITR to Fixed Charges as of the last day of each fiscal quarter to be at least
3.0:1.
SECTION 5.3 Funded Debt to Tangible Capitalization Ratio. Concord shall
cause the Funded Debt to Tangible Capitalization Ratio as of the last day of
each fiscal quarter to be no greater than 40%.
SECTION 5.4 Adjusted Net Income. Concord shall cause Adjusted Net Income
for each period of four consecutive fiscal quarters to be greater than $0.
SECTION 5.5 No Impairment. Concord shall not take any action, and shall
not permit any of its Significant Subsidiaries to take any action, that would
materially impair Concord's ability to perform its obligations hereunder or
under any other Operative Document. In particular, Concord shall not permit any
of its Significant Subsidiaries to enter into any agreement or arrangement that
would materially impair or restrict any Significant Subsidiary's ability to
declare and pay dividends (or other similar distributions in the case of
Significant Subsidiaries that are limited liability companies or partnerships)
to its shareholders or other equity holders.
SECTION 5.6 Additional Covenants; Significant Subsidiary. In the event
that Concord or any Ten Percent Subsidiary enters into any credit agreement or
loan agreement, Concord shall (i) promptly notify the Agent of such event and
shall provide the Agent with a copy of such amendment, replacement or additional
agreement and (ii) if requested by the Required Funding Parties, enter into an
amendment to this Master Agreement and/or the Lease to evidence an amendment or
addition to the covenants set forth herein or the Events of Default to the
extent requested by the Required Funding Parties to make such covenants and/or
Events of Default consistent with those set forth in such agreement (provided,
with respect to Events of Default, they are consistent with the limitations
thereon set forth in Article XIII of the Lease). If Concord acquires any
Significant Subsidiary after the date hereof, or any Subsidiary otherwise
becomes a Significant Subsidiary after the date hereof, Concord shall cause such
Significant Subsidiary to become a Subsidiary Guarantor in accordance with the
Subsidiary Guaranty.
SECTION 5.7 Payment of Obligations. Each Obligor will pay and discharge,
and will cause each Subsidiary to pay and discharge, at or before maturity, all
their respective material obligations and liabilities (including, without
limitation, tax liabilities and claims of materialmen, warehousemen and the like
which if unpaid might by law give rise to a Lien), except where the same may be
contested in good faith by appropriate proceedings, and will maintain, and will
cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves
for the accrual of any of the same.
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SECTION 5.8 Maintenance of Property: Insurance. (a) Each Obligor will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted, provided that, with respect to each fiscal year, each Obligor,
together with its Subsidiaries, may fail to comply with the foregoing covenant
with respect to property with an aggregate fair market value not exceeding
$10,000,000.
(b) CCS will, and will cause each of its Subsidiaries to, maintain
(either in the name of such Obligor or in such Subsidiary's own name) with
financially sound and responsible insurance companies, insurance on all their
respective properties in at least such amounts, against at least such risks and
with such risk retention as are usually maintained, insured against or retained,
as the case may be, in the same general area by companies of established repute
engaged in the same or a similar business; and will furnish to the Funding
Parties, upon request from the Agent, information presented in reasonable detail
as to the insurance so carried. Each Obligor (other than CCS) will maintain
insurance in such amounts, against such risks, with insurance companies with
credit standards and with deductibles as such Obligor determines to be
appropriate in the exercise of its reasonable business judgment.
SECTION 5.9 Conduct of Business and Maintenance of Existence. CCS will
continue, and will cause each of its Subsidiaries to continue, to engage in
business of substantially the same general type as now conducted by CCS and its
Subsidiaries or a business related thereto, and will preserve, renew and keep in
full force and effect, and will cause each Subsidiary to preserve, renew and
keep in full force and effect their respective existence and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business; provided that nothing in this Section 5.9 shall prohibit (i) the
merger of a Subsidiary into CCS or the liquidation, merger or consolidation of a
Subsidiary with or into another Person if the Person surviving such
consolidation or merger is a Subsidiary and if, in each case, after giving
effect thereto, no Default shall have occurred and be continuing or (ii) the
termination of the corporate existence or the abandonment of rights, privileges
and franchises of any Subsidiary if CCS in good faith determines that such
termination or abandonment is in the best interest of CCS and is not materially
disadvantageous to the Funding Parties. Each of Concord and each Ten Percent
Subsidiary (other than CCS) will continue to engage in business of substantially
the same general type as now conducted by Concord or such Ten Percent
Subsidiary, as the case may be, or a business related thereto, and will
preserve, renew and keep in full force and effect its existence and its rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing set forth in this Section 5.9 shall prohibit the
merger of any Ten Percent Subsidiary with any other Subsidiary or with Concord.
SECTION 5.10 Compliance with Laws. Each Obligor will comply, and cause
each Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, ERISA and the rules and regulations thereunder
and Environmental Laws) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
SECTION 5.11 Inspection of Property, Books and Records. Each Obligor will
keep and, in the case of CCS will cause each of its Subsidiaries to keep, proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in
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relation to its business and activities; and, upon reasonable advance notice
during normal business hours, will permit, representatives of any Funding Party
at such Funding Party's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records relating to finance or accounting matters (other than strategic plans
and other proprietary materials, and any materials subject to confidentiality
agreements that prohibit such disclosure) and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often as may
reasonably be desired.
SECTION 5.12 Consolidations, Mergers and Sales of Assets. Neither Concord
nor any Ten Percent Subsidiary will (i) consolidate or merge with or into any
other Person or (ii) sell, lease or otherwise transfer, directly or indirectly,
all or any substantial part of the assets of Concord or such Ten Percent
Subsidiary, as the case may be, and its Subsidiaries, taken as a whole, to any
other Person, nor will Concord or any Ten Percent Subsidiary permit any of its
Subsidiaries to do any of the foregoing if the effect thereof is to reduce the
total assets or net income of Concord or such Ten Percent Subsidiary (in each
case, on a consolidated basis for Concord or such Ten Percent Subsidiary, as the
case may be, and its Subsidiaries) by more than 25% of such assets existing on,
or net income generated during the four consecutive fiscal quarters ending
immediately prior to, the date of such consolidation, merger, sale, lease or
other transfer; provided that Concord or such Ten Percent Subsidiary, as the
case may be, may merge with another Person if (x) Concord or such Ten Percent
Subsidiary, as the case may be, is the corporation surviving such merger and (y)
after giving effect to such merger, no Default shall have occurred and be
continuing; provided, further that any Ten Percent Subsidiary may merge with any
other Subsidiary or with Concord, as long as a Ten Percent Subsidiary or Concord
is the entity surviving such merger. Concord will not transfer ownership, or
permit the transfer of ownership, of the equity interests in CCS or Star if the
effect thereof is that CCS or Star, as the case may be, becomes a Subsidiary of
any national bank or federal savings bank that is a Subsidiary of Concord; in
addition, Concord will not transfer ownership, or permit the transfer of
ownership, of the equity interests of any other Significant Subsidiary (other
than CCS or Star), whether such Significant Subsidiary exists on the date hereof
or hereafter arises, to a national bank or federal savings bank that is a
Subsidiary of Concord, if the intent of such transfer is to circumvent the
representations and covenants applicable to Significant Subsidiaries in the
Operative Documents (as opposed to an independent business purpose).
SECTION 5.13 Negative Pledge. Neither any Ten Percent Subsidiary nor any
Subsidiary thereof will create, assume or suffer to exist any Lien on any asset
now owned or hereafter acquired by it, except for Permitted Liens and except:
(a) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary and not created in contemplation of such event;
(b) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
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(c) any Lien on any asset of any person existing at the time such
person is merged or consolidated with or into such Ten Percent Subsidiary or a
Subsidiary and not created in contemplation of such event;
(d) any Lien existing on any asset prior to the acquisition thereof
by such Ten Percent Subsidiary or a Subsidiary and not created in contemplation
of such acquisition;
(e) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets;
(f) Liens arising in the ordinary course of its business (including,
without limitation, any such Liens for any income taxes not due and for any
workmen's compensation liability) which (i) do not secure Indebtedness or
Derivatives Obligations, (ii) do not secure any obligation in an amount
exceeding $40,000,000 for such Ten Percent Subsidiary and its Subsidiaries in
the aggregate and (iii) do not in the aggregate materially detract from the
value of its assets or materially impair the use thereof in the operation of its
business;
(g) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash equivalents
subject to such Liens may at no time exceed $20,000,000 for such Ten Percent
Subsidiary and its Subsidiaries in the aggregate;
(h) Liens created under the Operative Documents; and
(i) Liens not otherwise permitted by the foregoing clauses of this
Section securing Indebtedness in an aggregate principal or face amount at any
date not to exceed 3.0% of Consolidated Tangible Net Worth of such Ten Percent
Subsidiary and its Subsidiaries.
SECTION 5.14 Limitation on Indebtedness. No Ten Percent Subsidiary will or
will permit any of its Subsidiaries to, incur or at any time be liable with
respect to any Indebtedness except:
(a) Indebtedness under this Master Agreement;
(b) other Indebtedness outstanding on the date of the Original
Agreement (or, in the case of Persons that are not Ten Percent Subsidiaries on
the date hereof, on the date such Person became a Ten Percent Subsidiary) not in
excess of $10,000,000 in aggregate principal amount for such Ten Percent
Subsidiary and its Subsidiaries in the aggregate (in the case of CCS and Star
only) and refinancings thereof, provided that the principal amount thereof is
not increased beyond the amount outstanding thereunder on the date of the
Original Agreement or, in the case of Ten Percent Subsidiaries other than CCS
and Star, on the date such Person becomes a Ten Percent Subsidiary, as the case
may be; provided, further that for purpose of the foregoing, intercompany debt
between Obligors and loans from any Obligor to any Subsidiary shall not be
included as Indebtedness; and provided, further that no Subsidiary shall incur
Indebtedness or enter into intercompany debt solely in anticipation of being a
Ten Percent Subsidiary and subject to the restrictions set forth in this Section
5.14 (as opposed to an independent business purpose);
(c) Indebtedness secured by Liens permitted by Section 5.14; and
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(d) Indebtedness of such Ten Percent Subsidiary and its Subsidiaries
not otherwise permitted by this Section incurred after the Initial Closing Date
in an aggregate principal amount at any time outstanding not to exceed
$10,000,000 for such Ten Percent Subsidiary and its Subsidiaries in the
aggregate.
SECTION 5.15 Transactions with Affiliates. Neither Concord nor any Obligor
will, nor, in the case of CCS will it permit any of its Subsidiaries to,
directly or indirectly, pay any funds to or for the account of, make any
investment (whether by acquisition of stock or indebtedness, by loan, advance,
transfer of property, guarantee or other agreement to pay, purchase or service,
directly or indirectly, any Indebtedness, or otherwise) in, lease, sell,
transfer or otherwise dispose of any substantial portion of its assets, tangible
or intangible, to, or participate in, or effect, any transaction involving a
substantial portion of its assets or that would affect the nature of its
business or operations in any material adverse respect with, any Affiliate
(other than another Obligor) except on an arms-length basis on terms at least as
favorable to such Obligor, or, in the case of CCS, such Subsidiary of CCS as
would have been obtained from a third party who was not an Affiliate; provided
that the foregoing provisions of this Section shall not prohibit any such Person
from declaring or paying any lawful dividend or other payment ratably in respect
of all of its capital stock of the relevant class so long as, after giving
effect thereto, no Default shall have occurred and be continuing; and provided,
further that with respect to Concord the foregoing actions shall only be
prohibited if they could reasonably be expected to have a Material Adverse
Effect.
SECTION 5.16 Further Assurances. Upon the written request of the Lessor or
the Agent, each Lessee, at its own cost and expense, will cause all financing
statements (including precautionary financing statements), fixture filings and
other similar documents, to be recorded or filed at such places and times in
such manner, as may be necessary to preserve, protect and perfect the interest
of the Lessor, the Agent and the Lenders in the Leased Properties as
contemplated by the Operative Documents.
SECTION 5.17 Additional Required Appraisals. If, as a result of any change
in Applicable Law after the date hereof, an appraisal of all or any of the
Leased Properties is required during the Lease Term under Applicable Law with
respect to any Funding Party's interest therein, such Funding Party's Funded
Amount with respect thereto or the Operative Documents, then the related Lessee
shall pay the reasonable cost of such appraisal.
SECTION 5.18 Lessor's Covenants. The Lessor covenants and agrees that,
unless the Agent, Concord and the Lenders shall have otherwise consented in
writing:
(a) the proceeds of the Loans received from the Lenders will be used
by the Lessor solely to acquire the related Leased Property and to pay the
Construction Agent for certain Construction Costs associated therewith. No
portion of the proceeds of the Loans will be used by the Lessor (i) in
connection with, whether directly or indirectly, any tender offer for, or
other acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation or (ii) directly or indirectly,
for the purpose, whether immediate, incidental or ultimate, of purchasing
or carrying any Margin Stock;
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(b) it shall not consent to or permit the creation of any easement or
other restriction against any Leased Property other than as permitted
pursuant to Article VI of the Lease;
(c) it shall not incur or permit to exist, and will promptly
discharge each Lessor Lien and shall indemnify the Lenders and such Lessees
for any loss, cost, expense or diminution in value of any Leased Property
resulting from, or incurred as a result of, such Lessor Liens;
(d) upon request of Concord, it will deliver to Concord, or its
independent auditors, if requested by Concord (i) as soon as available and
in any event within 20 days after the end of each fiscal quarter (other
than the fourth fiscal quarter), a consolidated balance sheet of the Lessor
as of the end of such fiscal quarter and of related statements of income
for such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures for the
previous fiscal year, prepared in accordance with GAAP certified by a
manager or officer of the Lessor and of STI, (ii) as soon as available and
in any event within 45 days after the end of each fiscal year, a
consolidated balance sheet of the Lessor as of the end of such fiscal year
and the related statements of income for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year,
prepared in accordance with GAAP, certified by a manager or officer of the
Lessor and STI and (iii) within 15 days after the end of each fiscal
quarter (provided that the Lessor will use its best efforts to deliver such
certificate within 10 days), a certificate in substantially the form set
forth in Exhibit L, executed by an officer or manager of the Lessor and
STI, provided that, if the Lessor's fiscal year is not a calendar year, the
Lessor will also deliver such a certificate on or before each January 15,
and provided, further, that if the Lessor believes that it will be unable
to deliver such a certificate in the future or that it cannot make the
representation set forth in Section 4.3(l) or (m), then the Lessor, at its
option, shall either (A) provide documentation, based on GAAP and
reasonably acceptable to Concord, to certify that the Lessor is a "voting
interest entity" as defined in FIN 46 (which will be renewed as required),
(B) obtain additional assets such that after giving effect thereto, such
representation is accurate or (C) transfer its right, title and interest in
some, or all, of the Leased Properties to another Affiliate of STI such
that after giving effect to such transfer, such representation is accurate
(and the parties hereto hereby agree that the Lessor may make such transfer
without the need to obtain the consent of any party hereto);
(e) in the event that Concord believes that it is reasonably possible
that the aggregate value of the Leased Properties could exceed 30% (or such
lower percentage as reasonably determined by the Lessee) of the total
assets of the Lessor, upon the request of Concord, the Lessor shall provide
to Concord representations, and supporting schedules and analyses, setting
forth the Lessor's evaluation and conclusion that the Lessor is a voting
interest entity in accordance with paragraphs 5a and b of FIN 46,
including, but not limited to, quarterly and annual expected loss
calculations;
(f) it will not (A) incur additional non-recourse indebtedness with
respect to the Leased Properties, (B) change the character of non-targeted
equity or recourse
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borrowing in any way that would result in the Leased Properties, on either
a property by property basis or on a aggregate basis, being essentially the
only source of repayment of such funding source, or (C) make any
distributions from the Lessor that would, in the case of any of the
foregoing clauses (A), (B) and (C), result in such non-recourse funding
being equal to or exceeding 95% of the fair value of the Leased Properties,
on either a property by property or aggregate basis; and
(g) at any time, upon request of Concord, permit Concord or an agent
of Concord and Concord's independent auditors to examine the Lessor's books
and records and visit the offices and properties of the Lessor during
business hours for the purpose of examining such materials, (A) for the
purpose of verifying the accuracy of the representations and warranties set
forth in the certificate delivered pursuant to paragraph(d)(iii) above or
in Section 4.3(l) or (m), or (B) for the purpose of reviewing the materials
supporting the conclusion that the Lessor is a voting interest entity if
the circumstances described in paragraph (e) or paragraph (d)(iii)(A) above
exist or the Lessor has breached its representations or warranties set
forth in Section 4.3(l) or (m) or in any certificate delivered pursuant to
paragraph (d)(iii) above, provided that Concord and each such agent shall
execute and deliver to the Lessor an agreement regarding the
confidentiality of the Lessor's books and records and related information
in form and substance reasonably satisfactory to the Lessor.
At any time, the Lessor may submit to Concord, for Concord's acceptance,
documentation based on GAAP to certify that the Lessor is a "voting interest
entity" as defined by FIN 46, which documentation shall be renewed as required.
Concord agrees to consider, and to request its independent accountants to
consider, such documentation in good faith. If Concord accepts such
determination, in its reasonable discretion, the Lessor shall not be required to
comply with the covenants set forth in paragraph (d)(iii), (e) and (f) above,
nor to make the representations set forth in Section 4.3(l) or (m) for so long
as such documentation is renewed at least annually within 15 days after the end
of each calendar year and the Lessor has no reason to believe that it has ceased
to be a "voting interest entity" as defined in FIN 46.
SECTION 5.19 FDC Merger. If the FDC Merger occurs, as promptly as
practicable, but in no event later than ninety (90) days after the effective
date of the FDC Merger, Concord shall deliver or cause to be delivered a
guaranty of the Obligations from First Data Corporation ("FDC") in substantially
the form of the Guaranty Agreement, together with such opinions of counsel and
supporting corporate documentation from FDC as the Agent reasonably requests.
Upon delivery of such guaranty from FDC, the Operative Documents shall be
amended to make the representations and warranties set forth in Sections 4.1(a)
through (o), the covenants set forth in Section 5.1 through 5.15 and the Events
of Default applicable to the Guarantor the same as those in the lease
transaction between FDC and the Lessor, as such lease transaction is in effect
on the Effective Date. The parties hereto shall cooperate in good faith to
promptly execute and deliver documents evidencing such amendments. For the
avoidance of doubt, notwithstanding anything to the contrary set forth in any of
the Operative Documents, subject to compliance with the terms of this Section
5.19, the consummation of the FDC Merger shall not result in a violation or
breach of, or constitute a Default (or otherwise give rise to a right of
termination, cancellation, acceleration or amendment (except as provided in this
Section 5.19)) under any of the Operative Documents.
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ARTICLE VI
TRANSFERS BY LESSOR AND LENDERS; DISTRIBUTIONS
SECTION 6.1 Lessor Transfers. (a) The Lessor shall not assign, convey or
otherwise transfer all or any portion of its right, title or interest in, to or
under any Leased Property (except to a Lessee in accordance with the Lease or to
SunTrust Bank) or any of the Operative Documents without the prior written
consent of the Lenders and, unless an Event of Default has occurred and is
continuing, Concord, except that without the prior written consent of any
Lender, but, unless an Event of Default has occurred and is continuing, with the
prior written consent of Concord (such consent not to be unreasonably withheld),
Lessor may assign (reserving all rights of Lessor to indemnification relating to
the period prior to such transfer) all (but not less than all) of its right,
title and interest in, to and under the Leased Properties and the Operative
Documents to any wholly owned, direct or indirect, U.S. subsidiary of SunTrust
Banks, Inc. (i) that has a net worth of at least $75,000,000 or (ii) the
obligations of which under the Operative Documents are guaranteed by STI or
another wholly-owned U.S. subsidiary of SunTrust Banks, Inc., having a net worth
of at least $75,000,000. Lessor may, without the consent of the Lenders, the
Agent or any Obligor, sell a participation in its rights in the Leased
Properties and under the Operative Documents, provided that, unless the holder
of such participation is an Affiliate of SunTrust Banks, Inc., such participant
shall not be entitled to any greater benefit than the Lessor under the cost
protection provisions contained in Section 7.5 of this Master Agreement. Any
proposed transferee of the Lessor shall make the representations set forth in
Section 4.3 to the other parties hereto.
(b) At any time, the Lessor may add additional Lenders pursuant to an
Addition Agreement, provided that (i) unless such Lender is an Affiliate of any
Funding Party, or an Event of Default has occurred and is continuing, Concord
has approved the identity of such Lender, which approval shall not be
unreasonably withheld, (ii) after giving effect to such addition, the Lessor is
not in violation of its covenant set forth in Section 5.18(f) and (iii) the
Commitment of such additional Lender is at least $1,000,000. On the date any
such Lender is added, such Lender shall make Loans to the Lessor in an amount
equal to such new Lender's Commitment Percentage of the outstanding Funding
Amounts, which amount shall be applied to reduce the Lessor's Invested Amount.
No Lessee shall be responsible for any processing or recording fee or any costs
or expenses incurred by the Lessor, the Agent or any Lender in connection with
such addition. Each additional Lender shall make the representations set forth
in Section 4.4 to the other parties hereto.
SECTION 6.2 Lender Transfers.
(a) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(b) Each Lender may assign all or a portion of its interests, rights
and obligations under this Master Agreement and the Loan Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it) to any
Eligible Assignee; provided, however, that (i) the Agent and, except during the
continuance of an Event of Default, Concord must give its prior written consent
to such assignment (which consent shall not be unreasonably withheld or delayed)
unless such assignment is to another Lender, (ii) unless such Lender is
35
assigning all of its Commitment, after giving effect to such assignment, the
Commitment of both the assignor and the assignee is at least $1,000,000 and
(iii) the parties to each such assignment shall execute and deliver to the Agent
an Assignment and Acceptance, and, unless such assignment is to an Affiliate of
such Lender, a processing and recordation fee of $2,500. Any such assignment of
the Loans shall include both the A Loans and the B Loans of such assigning
Lender, on a pro rata basis. No Lessee shall be responsible for such processing
and recordation fee or any costs or expenses incurred by any Lender or the Agent
in connection with such assignment. From and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, the assignee thereunder shall be
a party hereto and to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Master
Agreement and the Loan Agreement, provided that the assigning Lender shall not
be released from any of its obligations incurred prior to the effective date of
such assignment.
(c) Each Lender may, without the consent of any Lessee, sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Master Agreement and the Loan Agreement
(including all or a portion of its Commitments in the Loans owing to it),
provided, however, that (i) such Lender's obligations under this Master
Agreement and the Loan Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating bank or other entity shall not be
entitled to any greater benefit than its selling Lender under the cost
protection provisions contained in Section 7.5 of this Master Agreement, (iv)
Concord and each other Lessee, the Agent and the other Lenders shall continue to
deal solely and directly with each Lender in connection with such Lender's
rights and obligations under this Master Agreement and the other Operative
Documents, and such Lender shall retain the sole right to enforce the
obligations of Lessor relating to the Loans and to approve any amendment,
modification or waiver of any provisions of this Master Agreement and the Loan
Agreement (except that such Lender may permit the participant to approve any
amendment, modification or waiver which would reduce the principal of or the
interest rate on its Loan, extend the term of such Lender's Commitment, reduce
the amount of any fees to which such participant is entitled or extend the final
scheduled payment date of any Loan) and (v) any participations and related
transactions shall be at no cost (directly or indirectly through Lessor or any
other party) to Concord or any other Lessee. Any Lender selling a participation
hereunder shall provide prompt written notice to the Agent of the name of such
participant.
(d) Any Funding Party or participant may, in connection with the
assignment or participation or proposed assignment or participation, pursuant to
this Section or any securitization or proposed securitization, disclose to the
assignee or participant or proposed assignee or participant, or any actual or
proposed contractual counterparty (or its advisors) to any securitization, hedge
or other derivative transaction relating to the parties' obligations hereunder,
any information relating to Concord or its Subsidiaries furnished to such
Funding Party by or on behalf of Concord. With respect to any disclosure of
confidential, non-public, proprietary information, such proposed assignee or
participant shall agree in writing to use the information only for the purpose
of making any necessary credit judgments with respect to this facility and not
to use the information in any manner prohibited by any law, including without
limitation, the securities laws of the United States. The proposed participant
or assignee shall agree in writing not to disclose any of such information
except as permitted by this Master Agreement. The
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proposed participant or assignee shall further agree to return all documents or
other written material and copies thereof received from any Funding Party, the
Agent or any Lessee relating to such confidential information unless otherwise
properly disposed of by such entity.
(e) Any Lender may at any time assign all or any portion of its
rights under this Master Agreement and the Notes to a Federal Reserve Bank
without complying with the requirements of paragraph (b) above; provided that no
such assignment shall release such Lender from any of its obligations hereunder.
(f) The Lenders hereby acknowledge and agree that the Lessees shall
have the right to the quiet enjoyment of the Leased Properties pursuant to the
Lease, whether or not a Loan Event of Default that is not an Event of Default
has occurred and is continuing, so long as no Event of Default has occurred and
is continuing.
SECTION 6.3 Distribution and Application of Rent Payments.
(a) Basic Rent. Each payment of Basic Rent (and any payment of
interest on overdue installments of Basic Rent) received by the Agent shall be
distributed pro rata to the Funding Parties to be applied to the amounts of
accrued and unpaid interest (including overdue interest) on the Loans and
accrued and unpaid Yield (including overdue Yield).
(b) Supplemental Rent. Each payment of Supplemental Rent received by
the Agent shall be paid to or upon the order of the Person owed the same in
accordance with the Operative Documents.
SECTION 6.4 Distribution and Application of Purchase Payment. The payment
by any Lessee or the Construction Agent of:
(a) the purchase price for a consummated sale of the Lessor's
interest in the Leased Property received by the Agent in connection with such
Lessee's exercise of the Purchase Option under Section 14.1(a) of the Lease or
such Lessee's or the Construction Agent's exercise of its option to purchase the
Lessor's interest in a Leased Property under Section 5.3 of the Construction
Agency Agreement, or
(b) the payment payable in connection with such Lessee's compliance
with its obligation to purchase the Lessor's interest in the Leased Property in
accordance with Section 14.2 or 14.3 of the Lease, or
(c) the Leased Property Balance therefor in accordance with Section
10.1 or Section 10.2 of the Lease,
shall be distributed by Agent as promptly as possible, to the Funding Parties
pro rata for application to their respective Funding Party Balances in respect
of such Leased Property or Leased Properties.
SECTION 6.5 Distribution and Application to Funding Party Balances of
Lessees Payment of Recourse Deficiency Amount Upon Exercise of Remarketing
Option. The payment by a Lessee of the Recourse Deficiency Amount to the Agent
on the Lease Termination Date in
37
accordance with Section 14.6 or Section 14.7 of the Lease following the Lessee's
exercise of the Remarketing Option, shall be distributed by the Agent on a pro
rata basis to the Lenders and the Lessor for application to the outstanding
principal of the A Loans and the A Allocated Amount. The payment by a Lessee or
the Construction Agent of the Construction Failure Payment pursuant to the
Construction Agency Agreement shall be distributed by the Agent, first on a pro
rata basis to the Lenders and the Lessor for application to the accrued and
unpaid interest on the Loans and accrued and unpaid Yield on the Allocated
Amount, second on a pro rata to the Lenders and the Lessor for application to
reduce the principal of the Loans and the Allocated Amount to zero, third to the
accrued and unpaid Yield on the outstanding Lessor's Net Invested Amount, and
fourth, to the outstanding Lessor's Net Invested Amount.
SECTION 6.6 Distribution and Application to Funding Party Balances of
Remarketing Proceeds of Leased Property. (a) For any payments received by the
Lessor as proceeds from the sale of any Leased Property sold after the Lessees'
exercise of the Remarketing Option pursuant to Section 14.6 or 14.7 of the Lease
or received pursuant to Section 7.6, in each case so long as such payment is not
a Construction Failure Payment (which shall be governed by paragraph (b) below)
shall be distributed (or applied, in the case of clause third below) by the
Lessor as promptly as possible (it being understood that any such payment
received by the Lessor on a timely basis and in accordance with the provisions
of the Lease shall be distributed on the date received in the funds so received)
in the following order of priority:
first, to the extent not previously deducted from such
proceeds, to the Agent and the Funding Parties as
reimbursement for any and all reasonable and documented
remarketing, sale, closing or other transfer costs,
prorations or commissions (including broker fees, appraisal
costs, legal fees and expenses and transfer taxes), paid or
incurred by the Agent or any Funding Party and not
reimbursed by a Lessee, pro rata according to the amount of
such costs and fees;
second, to the Lenders and the Lessor pro rata for
application to their Loans and the Allocated Amount, an
amount equal to such Loans and the Allocated Amount;
third, to the Lessor for application to the Lessor's
Net Invested Amount, an amount equal to the Lessor's Net
Invested Amounts;
fourth, to the Funding Parties pro rata for application
to any other amount owing to the Funding Parties under the
Operative Documents, an amount equal to such other amounts;
and
fifth, (i) if sold by the Lessees pursuant to Section
14.6 of the Lease, the excess, if any, to Lessees, and (ii)
otherwise, the excess, if any, to the Lessor.
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(b) Any payments received by the Lessor as proceeds from the sale of
the Leased Property sold following the payment of the Construction Failure
Payment shall be distributed (or applied, as appropriate) by the Lessor as
promptly as possible (it being understood that any such payment received by
the Lessor on a timely basis and in accordance with the provisions of the
Construction Agency Agreement shall be distributed on the date received in
the funds so received) in the following order of priority:
first, to the Funding Parties or the Agent, as the case
may be, in reimbursement of all reasonable costs, expenses
and taxes, if any, incurred by any of them to complete the
construction of the Leased Property, maintain and insure the
Leased Property, remarket the Leased Property and sell the
Leased Property, pro rata according to the amount of such
costs, expenses and taxes;
second, to the Lenders and the Lessor pro rata for
application to their Loans and the Allocated Amount, an
amount equal to such Loans and the Allocated Amount, and;
third, to the Lessor.
SECTION 6.7 Distribution and Application of Payments Received
When an Event of Default Exists.
(a) Proceeds of Leased Property. Any payments received by the Lessor
or the Agent when an Event of Default exists, as
(i) proceeds from the sale of all or any portion of the Leased
Property sold pursuant to the exercise of the Lessor's remedies
pursuant to Article XIII of the Lease, or
(ii) proceeds of any amounts from any insurer or any Governmental
Authority in connection with an Event of Loss or Event of Taking
shall if received by the Lessor be paid to the Agent as promptly as possible,
and shall be distributed or applied in the following order of priority:
first, to the Agent for any amounts reasonably expended
by it in connection with the Leased Property or the
Operative Documents and not previously reimbursed to it;
second, to the Lenders and the Lessor pro rata for
application to their Loans and the Allocated Amount, an
amount equal to such Loans and Allocated Amount;
third, to the Lessor for application to its remaining
Funding Party Balance, an amount equal to such Funding Party
Balance; and
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fourth, to the Lessee or the Person or Persons
otherwise legally entitled thereto, the excess, if any.
(b) Proceeds of Recoveries from Lessees or Guarantor. Any payments
received by the Agent or Lessor when an Event of Default exists, from any
Lessee or the Guarantor as a payment in accordance with the Lease shall be
paid to the Agent as promptly as possible, and shall then be distributed or
applied by the Agent as promptly as possible in the order of priority set
forth in paragraph (a) above.
SECTION 6.8 Distribution of Other Payments. Except as otherwise provided
in this Article VI, any payment received by the Lessor which is to be paid to
Agent pursuant hereto or for which provision as to the application thereof is
made in an Operative Document but not elsewhere in this Article VI shall, if
received by the Lessor, be paid forthwith to the Agent and when received shall
be distributed forthwith by the Agent to the Person and for the purpose for
which such payment was made in accordance with the terms of such Operative
Document. If the Agent has any funds related to the Leased Properties remaining
after all amounts payable to the Agent and the Funding Parties shall have been
paid in full, the Agent shall distribute such funds to Concord or whomsoever
shall be legally entitled thereto.
SECTION 6.9 Timing of Agent Distributions. Payments received by the Agent
in immediately available funds before 12:00 p.m. (noon), Atlanta, Georgia time,
on any Business Day shall be distributed to the Persons entitled thereto in
accordance with and to the extent provided in this Article VI on such Business
Day. Payments received by the Agent in immediately available funds after 12:00
p.m. (noon), Atlanta, Georgia time shall be distributed to the Persons entitled
thereto in accordance with and to the extent provided in this Article VI on the
next Business Day.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 General Indemnification. Each Lessee, jointly and severally,
agrees, whether or not any of the transactions contemplated hereby shall be
consummated, to assume liability for, and to indemnify, protect, defend, save
and hold harmless each Indemnitee, 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 such Indemnitee, whether or not such Indemnitee shall also
be indemnified as to any such Claim by any other Person (provided that no
Indemnitee shall have the right to double recovery with respect to any Claim)
and whether or not such Claim arises or accrues prior to any Closing Date or
after the Lease Termination Date, or results from such Indemnitee's negligence,
in any way relating to or arising out of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby, and any amendment, modification or waiver in respect
thereof; or
(b) the purchase, design, construction, preparation, installation,
inspection, delivery, non-delivery, acceptance, rejection, ownership,
management, possession, operation, rental, lease, sublease, repossession,
maintenance, repair, alteration, modification, addition, substitution,
storage, transfer of title, redelivery, use, financing,
40
refinancing, disposition, operation, condition, sale (including, without
limitation, any sale pursuant to the Lease), return or other disposition of
all or any part of any interest in any Leased Property or the imposition of
any Lien, other than a Lessor Lien (or incurring of any liability to refund
or pay over any amount as a result of any Lien, other than a Lessor Lien)
thereon, including, without limitation: (i) Claims or penalties arising
from any violation or alleged violation of law or in tort (strict liability
or otherwise), (ii) latent or other defects, whether or not discoverable,
(iii) any Claim based upon a violation or alleged violation of the terms of
any restriction, easement, condition or covenant or other matter affecting
title to any Leased Property or any part thereof, (iv) the making of any
Alterations in violation of any standards imposed by any insurance policies
required to be maintained by any Lessee pursuant to the Lease which are in
effect at any time with respect to any Leased Property or any part thereof,
(v) any Claim for patent, trademark or copyright infringement, (vi) Claims
arising from any public improvements with respect to any Leased Property
resulting in any charge or special assessments being levied against any
Leased Property or any Claim for utility "tap-in" fees, and (vii) Claims
for personal injury or real or personal property damage occurring, or
allegedly occurring, on any Land, Building or Leased Property;
(c) the breach or alleged breach by Concord or any other Lessee of
any representation or warranty made by it or deemed made by it in any
Operative Document or any certificate required to be delivered by any
Operative Document;
(d) the retaining or employment of any broker, finder or financial
advisor by Concord or any other Lessee to act on its behalf in connection
with this Master Agreement, or the incurring of any fees or commissions to
which the Lessor, the Agent or any Lender might be subjected by virtue of
their entering into the transactions contemplated by this Master Agreement
(other than fees or commissions due to any broker, finder or financial
advisor retained or deemed retained by the Lessor, the Agent or any
Lender);
(e) the existence of any Lien (other than Lessor Liens) on or with
respect to any Leased Property, the Construction, any Basic Rent or
Supplemental Rent, title thereto, or any interest therein, including any
Liens which arise out of the possession, use, occupancy, construction,
repair or rebuilding of any Leased Property or by reason of labor or
materials furnished or claimed to have been furnished to the Construction
Agent, any Lessee, or any of its contractors or agents or by reason of the
financing of any personalty or equipment purchased or leased by any Lessee
or Alterations constructed by any Lessee;
(f) the transactions contemplated hereby or by any other Operative
Document, in respect of the application of Parts 4 and 5 of Subtitle B of
Title I of ERISA and any prohibited transaction described in Section
4975(c) of the Code;
(g) any act or omission by Concord or any other Lessee under any
Purchase Agreement or any other Operative Document, or any breach by
Concord or any other Lessee of any requirement, condition, restriction or
limitation in any Deed, Purchase Agreement, IDB Documentation or Ground
Lease; or
41
(h) any IDB Documentation;
provided, however, no Lessee shall be required to indemnify any Indemnitee under
this Section 7.1 for any Claim to the extent that such Claim results from any of
the following: (1) the willful misconduct or gross negligence of such
Indemnitee, (2) Lessor Liens under the Operative Documents, (3) a breach of the
Operative Documents by such Indemnitee, (4) a violation of Applicable Law by
such Indemnitee that relates to the general business of such Indemnitee or (5)
events occurring after payment in full of the Lease Balance and the termination
of the Lease in accordance with the terms thereof (including the return or sale
of the Leased Properties pursuant to the terms thereof); and, provided, further,
that with respect to each Construction Land Interest, each Lessee's indemnity
obligations with respect to such Leased Property shall be governed by, and
expressly limited to the matters covered by, Section 3.3 of the Construction
Agency Agreement during the Construction Term therefor. It is expressly
understood and agreed that the indemnity provided for herein shall survive the
expiration or termination of, and shall be separate and independent from any
other remedy under this Master Agreement, the Lease or any other Operative
Document.
SECTION 7.2 Environmental Indemnity. In addition to and without
limitation of Section 7.1 or Section 3.3 of the Construction Agency Agreement,
each Lessee, jointly and severally, agrees to indemnify, hold harmless and
defend each Indemnitee, on an After-Tax Basis, from and against any and all
claims (including without limitation third party claims for personal injury or
real or personal property damage), losses (including but not limited to any loss
of value of any Leased Property), damages, liabilities, fines, penalties,
charges, suits, settlements, demands, administrative and judicial proceedings
(including informal proceedings and investigations) and orders, judgments,
remedial action, requirements, enforcement actions of any kind, and all
reasonable costs and expenses actually incurred in connection therewith
(including, but not limited to, reasonable attorneys' and/or paralegals' fees
and expenses), including, but not limited to, all costs incurred in connection
with any investigation or monitoring of site conditions or any clean-up,
remedial, removal or restoration work by any federal, state or local government
agency, arising directly or indirectly, in whole or in part, out of
(i) the presence on or under any Land of any Hazardous Materials, or
any releases or discharges of any Hazardous Materials on, under, from or
onto any Land,
(ii) any activity, including, without limitation, construction,
carried on or undertaken on or off any Land, and whether by a Lessee or any
predecessor in title or any employees, agents, contractors or
subcontractors of a Lessee or any predecessor in title, or any other
Person, in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Materials
that at any time are located or present on or under or that at any time
migrate, flow, percolate, diffuse or in any way move onto or under any
Land,
(iii) loss of or damage to any property or the environment (including,
without limitation, clean-up costs, response costs, remediation and removal
costs, cost of corrective action, costs of financial assurance, fines and
penalties and natural resource damages), or death or injury to any Person,
and all expenses associated with the protection of wildlife, aquatic
species, vegetation, flora and fauna, and any mitigative
42
action required by or under Environmental Laws, in each case to the extent
related to any Leased Property,
(iv) any claim concerning any Leased Property's lack of compliance
with Environmental Laws, or any act or omission causing an environmental
condition on or with respect to any Leased Property that requires
remediation or would allow any governmental agency to record a lien or
encumbrance on the land records, or
(v) any residual contamination on or under any Land, or affecting any
natural resources on any Land, and to any contamination of any property or
natural resources arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous Materials on or from
any Leased Property; in each case irrespective of whether any of such
activities were or will be undertaken in accordance with applicable laws,
regulations, codes and ordinances;
in any case with respect to the matters described in the foregoing clauses (i)
through (v) that arise or occur
(w) prior to or during the Lease Term,
(x) at any time during which a Lessee or any Affiliate thereof owns
any interest in or otherwise occupies or possesses any Leased Property or
any portion thereof, or
(y) during any period after and during the continuance of any Event
of Default, or
(z) during any period of three years following the date on which an
Indemnitee takes possession of any Leased Property;
provided, however, no Lessee shall be required to indemnify any Indemnitee under
this Section 7.2 for any Claim to the extent that such Claim results from the
willful misconduct or gross negligence of such Indemnitee. It is expressly
understood and agreed that the indemnity provided for herein shall survive the
expiration or termination of, and shall be separate and independent from any
other remedy under this Master Agreement, the Lease or any other Operative
Document.
SECTION 7.3 Proceedings in Respect of Claims. With respect to any amount
that a Lessee is requested by an Indemnitee to pay by reason of Section 7.1 or
7.2, such Indemnitee shall, if so requested by such Lessee and prior to any
payment, submit such additional information to such Lessee as such Lessee may
reasonably request and which is in the possession of, or under the control of,
such Indemnitee to substantiate properly the requested payment. In case any
action, suit or proceeding shall be brought against any Indemnitee, such
Indemnitee promptly shall notify Concord of the commencement thereof (provided
that the failure of such Indemnitee to promptly notify Concord shall not affect
any Lessee's obligation to indemnify hereunder except to the extent that a
Lessee's rights to contest or defenses otherwise available to such Lessee are
materially prejudiced by such failure), and such Lessee shall be entitled, at
its expense, to participate in, and, to the extent that such Lessee desires to,
assume and control the
43
defense thereof with counsel reasonably satisfactory to such Indemnitee;
provided, however, that such Indemnitee may pursue a motion to dismiss such
Indemnitee from such action, suit or proceeding with counsel of such
Indemnitee's choice at such Lessees' expense; and provided further that a Lessee
may assume and control the defense of such proceeding only if Concord shall have
acknowledged in writing its and each other Lessee's obligations to fully
indemnify such Indemnitee in respect of such action, suit or proceeding, Lessees
shall pay all reasonable costs and expenses related to such action, suit or
proceeding as and when incurred and the related Lessee shall keep such
Indemnitee fully apprised of the status of such action suit or proceeding and
shall provide such Indemnitee with all information with respect to such action,
suit or proceeding as such Indemnitee shall reasonably request; and, provided
further, that no Lessee shall be entitled to assume and control the defense of
any such action, suit or proceeding if and to the extent that, (A) in the
reasonable opinion of such Indemnitee, (x) such action, suit or proceeding
involves any possibility of imposition of criminal liability or any material
risk of civil liability on such Indemnitee in excess of $10,000,000 or (y) such
action, suit or proceeding will involve a material risk of the sale, forfeiture
or loss of, or the creation of any Lien (other than a Permitted Lien) on any
Leased Property or any part thereof unless the related Lessee or Concord shall
have posted a bond or other security satisfactory to the relevant Indemnitees in
respect to such risk or (z) the control of such action, suit or proceeding would
involve an actual or potential conflict of interest, (B) such proceeding
involves Claims not fully indemnified by the Lessees which the related Lessee
and the Indemnitee have been unable to sever from the indemnified claim(s), or
(C) an Event of Default has occurred and is continuing. The Indemnitee may
participate in a reasonable manner at its own expense and with its own counsel
in any proceeding conducted by a Lessee in accordance with the foregoing.
If a Lessee fails to fulfill the conditions to such Lessee's assuming the
defense of any claim after receiving notice thereof on or prior to the date that
is fifteen (15) days prior to the date that an answer or response is required,
the Indemnitee may undertake such defense, at the Lessees' expense. No Lessee
shall enter into any settlement or other compromise with respect to any Claim
which is entitled to be indemnified under Section 7.1 or 7.2 that (i) does not
contain a complete release of the related Indemnitee or does contain any
admission of liability or fault by such Indemnitee or (ii) involves a payment in
excess of $10,000,000, without the prior written consent of the related
Indemnitee, which consent shall not be unreasonably withheld. Unless an Event of
Default shall have occurred and be continuing, no Indemnitee shall enter into
any settlement or other compromise with respect to any claim which is entitled
to be indemnified under Section 7.1 or 7.2 without the prior written consent of
Concord, which consent shall not be unreasonably withheld, unless such
Indemnitee waives its right to be indemnified under Section 7.1 or 7.2 with
respect to such Claim.
Upon payment in full of any Claim by the Lessees pursuant to Section 7.1 or
7.2 to or on behalf of an Indemnitee, the Lessees, without any further action,
shall be subrogated to any and all claims that such Indemnitee may have relating
thereto (other than claims in respect of insurance policies maintained by such
Indemnitee at its own expense), and such Indemnitee shall execute such
instruments of assignment and conveyance, evidence of claims and payment and
such other documents, instruments and agreements as may be reasonably necessary
to preserve any such claims and otherwise cooperate with the Lessees and give
such further assurances as are reasonably necessary or advisable to enable the
Lessees vigorously to pursue such claims.
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Any amount payable to an Indemnitee pursuant to Section 7.1 or 7.2 shall be
paid to such Indemnitee promptly upon, but in no event later than thirty (30)
days after, receipt of a written demand therefor from such Indemnitee,
accompanied by a written statement describing in reasonable detail the basis for
such indemnity and the computation of the amount so payable.
If for any reason the indemnification provided for in Section 7.1 or 7.2 is
unavailable to an Indemnitee or is insufficient to hold an Indemnitee harmless,
then each Lessee agrees to contribute to the amount paid or payable by such
Indemnitee as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnitee on the one hand and by the Lessees on the other hand but also
the relative fault of such Indemnitee as well as any other relevant equitable
considerations. It is expressly understood and agreed that the right to
contribution provided for herein shall survive the expiration or termination of
and shall be separate and independent from any other remedy under this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.4 General Tax Indemnity.
(a) Tax Indemnity. Except as otherwise provided in this Section 7.4,
each Lessee, jointly and severally, shall pay on an After-Tax Basis, and on
written demand shall indemnify and hold each Tax Indemnitee harmless from and
against, any and all fees (including, without limitation, documentation,
recording, license and registration fees), taxes (including, without limitation,
income, gross receipts, sales, rental, use, turnover, value-added, property,
excise and stamp taxes), levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever, together with any penalties, fines or
interest thereon or additions thereto (any of the foregoing being referred to
herein as "Taxes" and individually as a "Tax" (for the purposes of this Section
7.4, the definition of "Taxes" includes amounts imposed on, incurred by, or
asserted against each Tax Indemnitee as the result of any prohibited
transaction, within the meaning of Section 406 or 407 of ERISA or Section
4975(c) of the Code, arising out of the transactions contemplated hereby or by
any other Operative Document)) imposed on or with respect to any Tax Indemnitee,
any Lessee, Concord, any Leased Property or any portion thereof or any Land, or
any sublessee or user thereof, by the United States or by any state or local
government or other taxing authority in the United States in connection with or
in any way relating to (i) the acquisition, financing, mortgaging, construction,
preparation, installation, inspection, delivery, non-delivery, acceptance,
rejection, purchase, ownership, possession, rental, lease, sublease,
maintenance, repair, storage, transfer of title, redelivery, use, operation,
condition, sale, return or other application or disposition of all or any part
of any Leased Property or the imposition of any Lien (or incurrence of any
liability to refund or pay over any amount as a result of any Lien) thereon,
(ii) Basic Rent or Supplemental Rent or the receipts or earnings arising from or
received with respect to any Leased Property or any part thereof, or any
interest therein or any applications or dispositions thereof, (iii) any other
amount paid or payable pursuant to the Notes or any other Operative Documents,
(iv) any Leased Property, any Land or any part thereof or any interest therein
(including, without limitation, all assessments payable in respect thereof,
including, without limitation, all assessments noted on the related Title
Policy), (v) all or any of the Operative Documents, any other documents
contemplated thereby, any amendments and supplements thereto, and (vi) otherwise
with respect to or in connection with the transactions contemplated by the
Operative Documents. Notwithstanding the foregoing, during the Construction Term
for any Construction Land Interest, (i) the Lessees shall only be
45
obligated to indemnify the Lessor with respect to Taxes related to such
Construction Land Interest, (ii) Lessor hereby indemnifies the other Tax
Indemnitees (as defined in clause (ii) of the definition thereof) for such
Taxes, to the extent that Lessor receives payment therefor from any Lessee or
the Construction Agent and (iii) subject to the terms and conditions of this
Master Agreement, property taxes with respect to such Construction Land Interest
will be funded with the proceeds of Advances.
(b) Exclusions from General Tax Indemnity. Section 7.4(a) shall not
apply to:
(i) Taxes on, based on, or measured by or with respect to net
income of the Lessor, the Agent and the Lenders (including, without
limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by
items of tax preference or alternative minimum Taxes) other than (A) any
such Taxes that are, or are in the nature of, sales, use, license, rental
or property Taxes, and (B) withholding Taxes imposed by the United States
or any state in which Leased Property is located (i) on payments with
respect to the Notes, to the extent imposed by reason of a change in
Applicable Law occurring after the Initial Closing Date or (ii) on Rent, to
the extent the net payment of Rent after deduction of such withholding
Taxes would be less than amounts currently payable with respect to the
Funded Amounts;
(ii) Taxes on, based on or in the nature of or measured by Taxes on
doing business, business privilege, franchise, capital, capital stock, net
worth, bank shares or mercantile license or similar Taxes, other than (A)
any increase in such Taxes imposed on such Tax Indemnitee by any state in
which Leased Property is located, net of any decrease in such taxes
realized by such Tax Indemnitee, to the extent that such tax increase would
not have occurred if on each Funding Date the Lessor and the Lenders had
advanced funds to a Lessee or the Construction Agent in the form of loans
secured by the Leased Property in an amount equal to the Funded Amounts
funded on such Funding Date, with debt service for such loans equal to the
Basic Rent payable on each Payment Date and a principal balance at the
maturity of such loans in a total amount equal to the Funded Amounts at the
end of the Lease Term, or (B) any Taxes that are or are in the nature of
sales, use, rental, license or property Taxes relating to any Leased
Property;
(iii) Taxes that are based on, or measured by, the fees or other
compensation received by a Person acting as Agent (in its individual
capacities) or any Affiliate of any thereof for acting as trustee under the
Loan Agreement;
(iv) Taxes that result from any act, event or omission, or are
attributable to any period of time, that occurs after the earlier of (A)
the expiration of the Lease Term with respect to any Leased Property and,
if such Leased Property is required to be returned to the Lessor in
accordance with the Lease, such return and (B) the discharge in full of the
Lessees' obligations to pay the Lease Balance, or any amount determined by
reference thereto, with respect to any Leased Property and all other
amounts due under the Lease, unless such Taxes relate to acts, events or
matters occurring prior to the earlier of such times or are imposed on or
with respect to any payments due under the Operative Documents after such
expiration or discharge;
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(v) Taxes imposed on a Tax Indemnitee that result from any
voluntary sale, assignment, transfer or other disposition or bankruptcy by
such Tax Indemnitee or any related Tax Indemnitee of any interest in any
Leased Property or any part thereof, or any interest therein or any
interest or obligation arising under the Operative Documents, or from any
sale, assignment, transfer or other disposition of any interest in such Tax
Indemnitee or any related Tax Indemnitee, it being understood that each of
the following shall not be considered a voluntary sale: (A) any
substitution, replacement or removal of any of the Leased Property by any
Lessee, (B) any sale or transfer resulting from the exercise by any Lessee
of any termination option, any purchase option or sale option, (C) any sale
or transfer while an Event of Default shall have occurred and be continuing
under the Lease, and (D) any sale or transfer resulting from the Lessor's
exercise of remedies under the Lease;
(vi) any Tax which is being contested in accordance with the
provisions of Section 7.4(c), during the pendency of such contest;
(vii) any Tax that is imposed on a Tax Indemnitee as a result of such
Tax Indemnitee's gross negligence or willful misconduct (other than gross
negligence or willful misconduct imputed to such Tax Indemnitee solely by
reason of its interest in any Leased Property);
(viii) to the extent any interest, penalties or additions to tax
result in whole or in part from the failure of a Tax Indemnitee to file a
return that it is required to file in a proper and timely manner, unless
such failure (A) results from the transactions contemplated by the
Operative Documents in circumstances where a Lessee did not give timely
notice to such Tax Indemnitee (and such Tax Indemnitee otherwise had no
actual knowledge) of such filing requirement that would have permitted a
proper and timely filing of such return, or (B) results from the failure of
Lessee to supply information necessary for the proper and timely filing of
such return of such Tax that was not in the possession of such Tax
Indemnitee;
(ix) as to Lessor, any Tax that results from the breach by the
Lessor of its representation and warranty made in Section 4.3(g) or as to
any Lender the breach of such Lender of its representation and warranty
made in Section 4.4(b); and
(x) any Tax that results from a Tax Indemnitee engaging, with
respect to a Leased Property, in transactions other than those permitted by
the Operative Documents.
(c) Contests. If any claim shall be made against any Tax Indemnitee
or if any proceeding shall be commenced against any Tax Indemnitee (including a
written notice of such proceeding) for any Taxes as to which the Lessees may
have an indemnity obligation pursuant to Section 7.4, or if any Tax Indemnitee
shall determine that any Taxes as to which the Lessees may have an indemnity
obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee shall
promptly notify Concord. Concord shall be entitled, at its expense, to
participate in, and, to the extent that Concord desires to, assume and control
the defense thereof; provided, however, that Concord shall have acknowledged in
writing its and each Lessee's obligation to fully indemnify such Tax Indemnitee
in respect of such action, suit or proceeding if the contest is
47
unsuccessful; and, provided further, that Concord shall not be entitled to
assume and control the defense of any such action, suit or proceeding (but the
Tax Indemnitee shall then contest, at the sole cost and expense of Concord and
such other Lessees, on behalf of Concord with representatives reasonably
satisfactory to Concord) if and to the extent that, (A) in the reasonable
opinion of such Tax Indemnitee, such action, suit or proceeding (x) involves any
meaningful risk of imposition of criminal liability or any material risk of
material civil liability on such Tax Indemnitee or (y) will involve a material
risk of the sale, forfeiture or loss of, or the creation of any Lien (other than
a Permitted Lien) on any Leased Property or any part thereof unless a Lessee
shall have posted a bond or other security reasonably satisfactory to the
relevant Tax Indemnitees in respect to such risk, (B) such proceeding involves
Claims not fully indemnified by the Lessees which Concord and the Tax Indemnitee
have been unable to sever from the indemnified claim(s), (C) an Event of Default
has occurred and is continuing, (D) such action, suit or proceeding involves
matters which extend beyond or are unrelated to the Transaction and if
determined adversely could be materially detrimental to the interests of such
Tax Indemnitee notwithstanding indemnification by the Lessees or (E) such
action, suit or proceeding involves the federal or any state income tax
liability of the Tax Indemnitee not indemnified by the Lessees. With respect to
any contests controlled by a Tax Indemnitee, (i) if such contest relates to the
federal or any state income tax liability of such Tax Indemnitee, such Tax
Indemnitee shall be required to conduct such contest only if Concord shall have
provided to such Tax Indemnitee an opinion of independent tax counsel selected
by the Tax Indemnitee and reasonably satisfactory to Concord stating that a
reasonable basis exists to contest such claim or (ii) in the case of an appeal
of an adverse determination of any contest relating to any Taxes, an opinion of
such counsel to the effect that such appeal is more likely than not to be
successful, provided, however, such Tax Indemnitee shall in no event be required
to appeal an adverse determination to the United States Supreme Court. The Tax
Indemnitee may participate in a reasonable manner at its own expense and with
its own counsel in any proceeding conducted by Concord in accordance with the
foregoing.
Each Tax Indemnitee shall, at the Lessees' expense, supply Concord with
such information and documents in such Tax Indemnitee's possession as are
reasonably requested by Concord and are necessary or advisable for Concord to
participate in any action, suit or proceeding to the extent permitted by this
Section 7.4. Unless an Event of Default shall have occurred and be continuing,
no Tax Indemnitee shall enter into any settlement or other compromise with
respect to any Claim which is entitled to be indemnified under this Section 7.4
without the prior written consent of Concord, which consent shall not be
unreasonably withheld, unless such Tax Indemnitee waives its right to be
indemnified under this Section 7.4 with respect to such Claim.
Notwithstanding anything contained herein to the contrary, (i) a Tax
Indemnitee will not be required to contest (and no Lessee shall be permitted to
contest except on its own behalf) a claim with respect to the imposition of any
Tax if such Tax Indemnitee shall waive its right to indemnification under this
Section 7.4 with respect to such claim (and any related claim with respect to
other taxable years the contest of which is precluded as a result of such
waiver) and (ii) no Tax Indemnitee shall be required to contest any claim if the
subject matter thereof shall be of a continuing nature and shall have previously
been decided adversely, unless Concord shall have provided to such Tax
Indemnitee an opinion of Tax Indemnitee's counsel selected by the Tax Indemnitee
and reasonably satisfactory to Concord stating that a reasonable basis exists to
48
contest such claim in light of such adverse decision. Each Tax Indemnitee and
Concord shall consult in good faith with each other regarding the conduct of
such contest controlled by either.
(d) Reimbursement for Tax Savings. If (x) a Tax Indemnitee shall
obtain a credit or refund of any Taxes paid by any Lessee pursuant to this
Section 7.4 or (y) by reason of the incurrence or imposition of any Tax for
which a Tax Indemnitee is indemnified hereunder or any payment made to or for
the account of such Tax Indemnitee by any Lessee pursuant to this Section 7.4,
such Tax Indemnitee at any time realizes a reduction in any Taxes for which the
Lessees are not required to indemnify such Tax Indemnitee pursuant to this
Section 7.4, which reduction in Taxes was not taken into account in computing
such payment by any Lessee to or for the account of such Tax Indemnitee, then
such Tax Indemnitee shall promptly pay to Concord (xx) the amount of such credit
or refund, together with the amount of any interest received by such Tax
Indemnitee on account of such credit or refund or (yy) an amount equal to such
reduction in Taxes, as the case may be; provided that so long as an Event of
Default shall have occurred and be continuing such payment shall be made to the
Agent and applied to the amounts owing by the Lessees under the Operative
Documents pursuant to Section 3.5 of the Loan Agreement) and, provided, further,
that the amount payable to Concord by any Tax Indemnitee pursuant to this
Section 7.4(d) shall not at any time exceed the aggregate amount of all
indemnity payments made by such Lessees under this Section 7.4 to such Tax
Indemnitee with respect to the Taxes which gave rise to the credit or refund or
with respect to the Tax which gave rise to the reduction in Taxes less the
amount of all prior payments made to Concord by such Tax Indemnitee under this
Section 7.4(d). Each Tax Indemnitee agrees to act in good faith to claim such
refunds and other available Tax benefits, and take such other actions as may be
reasonable to minimize any payment due from the Lessees pursuant to this Section
7.4. The disallowance or reduction of any credit, refund or other tax savings
with respect to which a Tax Indemnitee has made a payment to the Lessees under
this Section 7.4(d) shall be treated as a Tax for which the Lessees are
obligated to indemnify such Tax Indemnitee hereunder without regard to Section
7.4(b) hereof.
(e) Payments. Any Tax indemnifiable under this Section 7.4 shall be
paid by a Lessee directly when due to the applicable taxing authority if direct
payment is practicable and permitted. If direct payment to the applicable taxing
authority is not permitted or is otherwise not made, any amount payable to a Tax
Indemnitee pursuant to Section 7.4 shall be paid within thirty (30) days after
receipt of a written demand therefor from such Tax Indemnitee accompanied by a
written statement describing in reasonable detail the amount so payable, but not
before the date that the relevant Taxes are due. Any payments made pursuant to
Section 7.4 shall be made to the Tax Indemnitee entitled thereto or Concord, as
the case may be, in immediately available funds at such bank or to such account
as specified by the payee in written directions to the payor, or, if no such
direction shall have been given, by check of the payor payable to the order of
the payee by certified mail, postage prepaid at its address as set forth in this
Master Agreement. Upon the request of any Tax Indemnitee with respect to a Tax
that the Lessees are required to pay, Concord shall furnish to such Tax
Indemnitee the original or a certified copy of a receipt for a Lessee's payment
of such Tax or such other evidence of payment as is reasonably acceptable to
such Tax Indemnitee.
(f) Reports. If any Lessee knows of any report, return or statement
required to be filed with respect to any Taxes that are subject to
indemnification under this Section 7.4,
49
such Lessee shall, if such Lessee is permitted by Applicable Law, timely file
such report, return or statement (and, to the extent permitted by law, show
ownership of the applicable Leased Property in such Lessee); provided, however,
that if such Lessee is not permitted by Applicable Law or does not have access
to the information required to file any such report, return or statement, such
Lessee will promptly so notify the appropriate Tax Indemnitee, in which case Tax
Indemnitee will file such report. In any case in which the Tax Indemnitee will
file any such report, return or statement, the related Lessee shall, upon
written request of such Tax Indemnitee, prepare such report, return or statement
for filing by such Tax Indemnitee or, if such Tax Indemnitee so requests,
provide such Tax Indemnitee with such information as is reasonably available to
such Lessee.
(g) Verification. At Concord's request, the amount of any indemnity
payment by a Lessee or any payment by a Tax Indemnitee to a Lessee pursuant to
this Section 7.4 shall be verified and certified by an independent public
accounting firm selected by Concord and reasonably acceptable to the Tax
Indemnitee. Unless such verification shall disclose an error in a Lessee's favor
of 5% or more of the related indemnity payment, the costs of such verification
shall be borne by Concord. In no event shall any Lessee have the right to review
the Tax Indemnitee's tax returns or receive any other confidential information
from the Tax Indemnitee in connection with such verification. The Tax Indemnitee
agrees to cooperate with the independent public accounting firm performing the
verification and to supply such firm with all information reasonably necessary
to permit it to accomplish such verification, provided that the information
provided to such firm by such Tax Indemnitee shall be for its confidential use.
The parties agree that the sole responsibility of the independent public
accounting firm shall be to verify the amount of a payment pursuant to this
Master Agreement and that matters of interpretation of this Master Agreement are
not within the scope of the independent accounting firm's responsibilities.
SECTION 7.5 Increased Costs, etc.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect
to any Rent Period applicable to a LIBOR Advance the Agent or any Funding Party
(after consultation with the Agent) shall determine that, by reason of
circumstances affecting the interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being quoted via Telerate Page
3750 or offered to the Agent for such Rent Period, then the Agent shall
forthwith give notice thereof to Concord. Thereafter, until the Agent notifies
Concord that such circumstances no longer exist, the obligation of the Funding
Parties to make LIBOR Advances and the right of Lessee to convert any Funding to
or continue any Funding as a LIBOR Advance shall be suspended, and the Lessees
shall repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such LIBOR Advances together with accrued interest
thereon on the last day of the then current Rent Period applicable to such LIBOR
Advance or convert the then outstanding principal amount of each such LIBOR
Advance to a Base Rate Advance as of the last day of such Rent Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the Initial
Closing Date, the introduction of, or any change in, any Applicable Law or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by
50
any Funding Party (or any of their respective Lending Offices) with any request
or directive (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, shall make it unlawful or
impossible for any of such Funding Party (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR
Advance, such Funding Party shall promptly give notice thereof to the Agent and
the Agent shall promptly give notice to the Lessee and the other Funding
Parties. Thereafter, until the Agent notifies Concord that such circumstances no
longer exist, (i) the obligations of such Funding Party to make LIBOR Advances
and the right of Concord to convert such Funding Party's portion of any Funding
or continue such Funding Party's portion of any Funding as a LIBOR Advances
shall be suspended and thereafter Concord may select only Base Rate Advances
hereunder with respect to such portion, and (ii) if any of the Funding Parties
may not lawfully continue to maintain a LIBOR Advance to the end of the then
current Rent Period applicable thereto as a LIBOR Advance, the applicable LIBOR
Advance shall immediately be converted to a Base Rate Advance for the remainder
of such Rent Period.
(c) Increased Costs. If, after the Initial Closing Date, the
introduction of, or any change in, any Applicable Law, or in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Funding Parties (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of such Governmental Authority, central bank or comparable agency:
(i) shall subject any of the Funding Parties (or any of their
respective Lending Offices) to any tax, duty or other charge with respect
to any Note or any Funding or shall change the basis of taxation of
payments to any of the Funding Parties (or any of their respective Lending
Offices) of the principal of or interest on any Note or Invested Amount or
any other amounts due under this Master Agreement with respect thereto
(except for changes in the rate of tax on the overall net income of any of
the Funding Parties or any of their respective Lending Offices imposed by
the jurisdiction in which such Funding Party is organized or is or should
be qualified to do business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any imposed by the Board of Governors of the Federal
Reserve System, but excluding any reserve requirement included in the
calculation of the LIBOR Rate), special deposit, insurance or capital or
similar requirement against assets of, deposits with or for the account of,
or credit extended by any of the Funding Parties (or any of their
respective Lending Offices) or shall impose on any of the Funding Parties
(or any of their respective Lending Offices) or the interbank markets any
other condition affecting any Note or Funding;
and the result of any of the foregoing is to increase the costs to any of the
Funding Parties of maintaining any LIBOR Advance or issuing or (subject to
Section 6.2(d)(viii)) participating in any Funding or to reduce the yield or
amount of any sum received or receivable by any of the Funding Parties under any
of the Operative Documents in respect of a LIBOR Advance, then such Funding
Party shall promptly notify the Agent, and the Agent shall promptly notify
Concord of such fact and demand compensation therefor and, within fifteen (15)
days after such
51
notice by the Agent, the Lessees shall pay to such Funding Party such additional
amount or amounts as will compensate such Funding Party or Funding Parties for
such increased cost or reduction, provided that such Funding Party is generally
imposing similar charges on its other similarly situated lessees or borrowers.
The Agent will promptly notify Concord of any event of which it has knowledge
which will entitle a Funding Party to compensation pursuant to this Section
7.5(c); provided that the Agent shall incur no liability whatsoever to the
Funding Parties or any Lessee in the event it fails in good faith to do so. The
amount of such compensation shall be determined by the applicable Funding Party
in good faith based upon the assumption that such Funding Party funded its LIBOR
Advances in the London interbank market and using any reasonable attribution or
averaging methods which such Funding Party deems appropriate and practical. A
certificate of such Funding Party setting forth the basis for determining such
amount or amounts necessary to compensate such Funding Party shall be forwarded
to Concord through the Agent and shall be conclusively presumed to be correct in
the absence of manifest error.
(d) Indemnity. The Lessees, jointly and severally, hereby indemnifies
each of the Funding Parties against any loss or expense which may arise or be
attributable to such Funding Party's obtaining, liquidating or employing
deposits or other funds acquired to effect, fund or maintain any Funding (a) as
a consequence of any failure by any Lessee to make any payment when due of any
amount due under the Operative Documents in connection with a LIBOR Advance, (b)
due to any failure of any Lessee or the Construction Agent to accept the
proceeds of a funding on a date specified therefor in a Funding Request or a
Rent Period Notice or (c) due to any payment, prepayment or conversion of any
LIBOR Advance on a date other than the last day of the Rent Period therefor. The
amount of such loss or expense shall be determined by the applicable Funding
Party in good faith based upon the assumption that such Funding Party funded its
LIBOR Advances in the London interbank market and using any reasonable
attribution or averaging methods which such Funding Party deems appropriate and
practical. A certificate of such Funding Party setting forth the basis for
determining such amount or amounts necessary to compensate such Funding Party
shall be forwarded to Concord through the Agent and shall be conclusively
presumed to be correct in the absence of manifest error.
(e) Capital Requirements. If either (a) the introduction of, or any
change in, or in the interpretation of, any Applicable Law or (b) compliance
with any guideline or request from any central bank or comparable agency or
other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Funding Party or any corporation controlling such Funding Party as a consequence
of, or with reference to the Commitments or Fundings and other commitments or
fundings of this type, below the rate which the Funding Party or such other
corporation could have achieved but for such introduction, change or compliance,
then within five (5) Business Days after written demand by any such Funding
Party, the Lessees shall pay to such Funding Party from time to time as
specified by such Funding Party additional amounts sufficient to compensate such
Funding Party or other corporation for such reduction, provided that such
Funding Party is generally imposing similar charges on its other similarly
situated lessees or borrowers. A certificate as to such amounts submitted to
Concord and the Agent by such Funding Party, shall, in the absence of manifest
error, be presumed to be correct and binding for all purposes.
52
(f) Payments Free and Clear. Any and all payments by a Lessee
hereunder or under the Lease shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholding, and all liabilities with respect thereto, excluding, (i)
in the case of each Funding Party and the Agent, income and franchise taxes
imposed by the jurisdiction under the laws of which such Funding Party or the
Agent, as the case may be, is organized or is or should be qualified to do
business or any political subdivision thereof, (ii) in the case of each Funding
Party, income and franchise taxes imposed by the jurisdiction of such Funding
Party's Lending Office or any political subdivision thereof, (iii) in the case
of each Funding Party, income and franchise taxes payable solely as a result of
such Funding Party's failure to comply with Section 7.5(j) and (iv) in the case
of each Funding Party, income and franchise taxes imposed by any other
jurisdiction to which taxes such Funding Party would be subject even if such
Funding Party had not entered into the transactions contemplated by the
Operative Documents (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Withholding Taxes"). If any Lessee shall be required by law to deduct any
Withholding Taxes from or in respect of any sum payable hereunder or under the
Lease to any Funding Party or the Agent, (A) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 7.5(j)) such
Funding Party or the Agent, as the case may be, receives an amount equal to the
amount such party would have received had no such deductions been made, (B) the
related Lessee shall make such deductions, (C) the related Lessee shall pay the
full amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (D) the related Lessee shall deliver to the
Agent evidence of such payment to the relevant taxing authority or other
authority in the manner provided in Section 7.5(i).
(g) Stamp and Other Taxes. In addition, the Lessees shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to this Master Agreement,
the Loans, the other Operative Documents, or the perfection of any rights or
security interest in respect thereto (hereinafter referred to as "Other Taxes").
(h) Indemnity. The Lessees, jointly and severally, shall indemnify
each Funding Party and the Agent for the full amount of Withholding Taxes and
Other Taxes (including, without limitation, any Withholding Taxes and Other
Taxes imposed by any jurisdiction on amounts payable under this Section 7.5)
paid by such Funding Party or the Agent, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Withholding Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within thirty (30) days
from the date such Funding Party or the Agent, as the case may be, makes written
demand therefor. In the event that Lessee has indemnified a Funding Party or the
Agent for the full amount of any Withholding Taxes or Other Taxes as required
hereby, such Lessee shall have the right, at its sole cost and expense, to
contest the validity of such Withholding Taxes or Other Taxes by appropriate
proceedings, to seek a refund with respect thereto and to receive and retain any
such refund obtained for its own account.
53
(i) Evidence of Payment. Within thirty (30) days after the date of
any payment of Withholding Taxes or Other Taxes, the related Lessee shall
furnish to the Agent, the original or a certified copy of a receipt evidencing
payment thereof or other evidence of payment satisfactory to the Agent.
(j) Delivery of Tax Forms. Each Funding Party organized under the
laws of a jurisdiction other than the United States or any state thereof shall
deliver to Concord, with a copy to the Agent, on the date hereof or concurrently
with the delivery of the relevant Assignment and Acceptance or Addition
Agreement, as applicable, (i) two United States Internal Revenue Service Form
W-8BEN or W-8ECI, as applicable (or successor forms) properly completed and
certifying in each case that such Funding Party is entitled to a complete
exemption from withholding or deduction for or on account of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding taxes. Each such Funding Party further agrees to
deliver to the Lessee, with a copy to the Agent, a Form W-8BEN or W-8ECI and
Form W-9, or successor applicable forms or manner of certification, as the case
may be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to Concord, certifying in the case of a Form W-8BEN
or W-8ECI that such Funding Party is entitled to receive payments under the
Operative Documents without deduction or withholding of any United States
federal income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders such
forms inapplicable or the exemption to which such forms relate unavailable and
such Funding Party notifies Concord and the Agent that it is not entitled to
receive payments without deduction or withholding of United States federal
income taxes) and, in the case of a Form W-9, establishing an exemption from
United States backup withholding tax.
(k) Survival. Without prejudice to the survival of any other
agreement of any Lessee hereunder, the agreements and obligations of the Lessees
contained in this Section 7.5 shall survive the payment in full of the
obligations of the Lessees and the termination of the Lease.
(l) Mitigation. If a Lessee is required to pay additional amounts to
or for the account of any Funding Party pursuant to this Section 7.5, then such
Funding Party shall change the jurisdiction or location of its Lending Office
if, in the reasonable judgment of such Funding Party, such change (i) will
eliminate or, if it is not possible to eliminate, will reduce to the greatest
extent possible any such additional amounts which may thereafter accrue, and
(ii) is not otherwise disadvantageous to such Funding Party. In addition, any
Funding Party claiming any indemnity payment or additional amounts pursuant to
this Section 7.5 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document reasonably
requested in writing by Concord if the making of such a filing would avoid the
need for or reduce the amount of any such indemnity payment or additional
amounts that may thereafter accrue and would not, in the sole determination of
such Funding Party, be otherwise disadvantageous to such Funding Party.
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(m) Limitations During Construction Term. During the Construction
Term, (i) the Lessees shall only be required to indemnify and make payments to
the Lessor under this Section 7.5, (ii) the Lessor hereby indemnifies and agrees
to make payments to the Lenders to the extent that any Lender would have been
entitled to the benefits of this Section 7.5 but for the provisions of clause
(i) above, provided that the Lessor's obligations pursuant to this paragraph
shall be limited as provided in Section 4.2 of the Loan Agreement and (iii)
amounts payable pursuant to this Section 7.5 shall be paid with Advances,
subject to the terms and conditions of this Master Agreement.
SECTION 7.6 End of Term Indemnity. In the event that at the end of the
Lease Term for the Leased Properties: (i) the related Lessee elects the option
set forth in Section 14.6 of the Lease with respect to any Leased Property, and
(ii) after the Lessor receives the sales proceeds from the remarketed Leased
Properties under Section 14.6 or 14.7 of the Lease, together with Lessees'
payment of the Recourse Deficiency Amount with respect to such Leased
Properties, the Lessor shall not have received the entire aggregate Leased
Property Balances of the remarketing Leased Properties, then, within 90 days
after the end of the Lease Term, the Lessor or the Agent may obtain, at Lessees'
sole cost and expense, a report from the Appraiser (or, if the Appraiser is not
available, another appraiser reasonably satisfactory to the Lessor or the Agent,
as the case may be, and approved by Concord, such approval not to be
unreasonably withheld) in form and substance reasonably satisfactory to the
Lessor and the Agent (the "Report") to establish the reason for any decline in
value of the remarketed Leased Properties from the aggregate Leased Property
Balances thereof. The Lessees, jointly and severally, shall promptly reimburse
the Lessor for the amount equal to such decline in value to the extent that the
Report indicates that such decline was due to extraordinary wear and tear,
excessive usage or damage. Nothing in this Section 7.6 shall limit Lessor's
rights and remedies against any Lessee with respect to any violation of, or
default under, the Lease or any other Operative Documents by such Lessee.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Master Agreement and any of the
Operative Documents, the transfer of any Land to the Lessor as provided herein
(and shall not be merged into any Deed), any disposition of any interest of the
Lessor in any Leased Property, the purchase and sale of the Notes, payment
therefor and any disposition thereof and shall be and continue in effect
notwithstanding any investigation made by any party hereto or to any of the
other Operative Documents and the fact that any such party may waive compliance
with any of the other terms, provisions or conditions of any of the Operative
Documents.
SECTION 8.2 Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be addressed to such parties at the addresses therefor as set forth
in Schedule 8.2, or such other address as any such party shall specify to the
other parties hereto in a written notice complying with this Section 8.2, and
shall be deemed to have been given (i) the Business Day after being sent, if
sent
55
by overnight courier service marked for next Business Day delivery; (ii) the
Business Day received, if sent by messenger; (iii) the day sent, if sent by
facsimile and confirmed electronically or otherwise during business hours of a
Business Day (or on the next Business Day if otherwise sent by facsimile and
confirmed electronically or otherwise); or (iv) three Business Days after being
sent, if sent by registered or certified mail, postage prepaid.
SECTION 8.3 Counterparts. This Master Agreement may be executed by the
parties hereto in separate counterparts (including by facsimile), each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 8.4 Amendments. No Operative Document nor any of the terms
thereof may be terminated, amended, supplemented, waived or modified with
respect to Concord, any other Lessee or any Funding Party, except (a) in the
case of a termination, amendment, supplement, waiver or modification to be
binding on the Lessees, with the written agreement or consent of the Lessees and
(b) in the case of a termination, amendment, supplement, waiver or modification
to be binding on the Funding Parties, with the written agreement or consent of
the Required Funding Parties; provided, however, that
(x) notwithstanding the foregoing provisions of this Section 8.4 or
clause (y) below, the consent of each Funding Party affected thereby shall be
required for any amendment, modification or waiver directly:
(i) modifying any of the provisions of this Section 8.4,
changing the definition of "Required Funding Parties" or "Required
Lenders", or increasing the Commitment of such Funding Party;
(ii) amending, modifying, waiving or supplementing any of the
provisions of Section 6.3 through 6.7 or the representations of such
Funding Party in Section 4.2 or 4.3 or the covenants of such Funding
Party in Section 6 of this Master Agreement;
(iii) reducing any amount payable to such Funding Party under the
Operative Documents or extending the time for payment of any such
amount, including, without limitation, any Rent, any Funded Amount,
any fees, any indemnity, any Leased Property Balance, the Lease
Balance, any Funding Party Balance, the Recourse Deficiency Amount,
interest or Yield; or
(iv) consenting to any assignment of the Lease (unless such
assignment is permitted pursuant to the Lease) or the extension of the
Lease Term, releasing any of the collateral assigned to the Agent and
the Lenders pursuant to any Mortgage and any Assignment of Lease and
Rents (but excluding a release of any rights that the Lenders may have
in any Leased Property, or the proceeds thereof as contemplated in the
definition of "Release Date"), releasing any Lessee from its
obligations in respect of the payments of Rent and the Lease Balance,
releasing Concord from its obligations under the Guaranty Agreement or
any other
56
Operative Document or changing the absolute and unconditional
character of any such obligation; and
(y) no such termination, amendment, supplement, waiver or
modification shall, without the written agreement or consent of the Lessor,
the Agent and the Required Lenders, be made to the Lease or any Security
Agreement and Assignment; and
(z) subject to the foregoing clauses (x) and (y), so long as no Event
of Default has occurred and is continuing, the Lessor, the Agent and the
Lenders may not amend, supplement, waive or modify any terms of the Loan
Agreement, the Notes, the Mortgages and the Assignments of Lease and Rents
without the consent of Concord (such consent not to be unreasonably
withheld or delayed); provided that in no event may any Operative Document
be amended so as to increase the obligations of Concord or any other
Lessee, or deprive Concord or any other Lessee of any rights thereunder,
without the written consent of Concord and such Lessee.
Each of the Agent and each Lender, severally and not jointly, acknowledge the
provisions of, and agree to be bound by, Article II and Section 17.3 of the
Lease.
In the event that any Lender does not consent to any amendment or waiver
requested by the Lessor or Concord, the Lessor may, at its option, prepay such
Lender's outstanding Loans, together with all accrued interest thereon, or
arrange for another Lender to purchase such Loans for a price equal to the
outstanding principal thereof, together with all accrued interest thereon.
SECTION 8.5 Headings, etc. The Table of Contents and headings of the
various Articles and Sections of this Master Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
SECTION 8.6 Parties in Interest. Except as expressly provided herein,
none of the provisions of this Master Agreement is intended for the benefit of
any Person except the parties hereto and their respective successors and
permitted assigns.
SECTION 8.7 GOVERNING LAW. THIS MASTER AGREEMENT HAS BEEN DELIVERED IN,
AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
SECTION 8.8 Expenses. Whether or not the transactions herein contemplated
are consummated, the Lessees, jointly and severally, agrees to pay, as
Supplemental Rent, all actual, reasonable and documented out-of-pocket costs and
expenses of the Lessor, the Agent and the Lenders in connection with the
preparation, execution and delivery of any amendment, waiver or consent relating
thereto, including the amendments contemplated by Section 5.19 (including,
without limitation, the costs of any residual value insurance obtained by the
Lessor in connection with the Transaction and the reasonable fees and
disbursements of Mayer, Brown, Rowe & Maw) and of the Lessor, the Agent and the
Lenders in connection with the enforcement of the Operative Documents and the
documents and instruments referred to therein (including, without
57
limitation, the reasonable fees actually incurred and disbursements of counsel
for the Lessor, the Agent and the Lenders); provided that nothing in this
Section 8.8 shall be interpreted to require any Lessee to pay the fees and
expenses of any participant, or in connection with any participations, described
in Section 6.2(c). All actual, reasonable and documented out-of-pocket costs and
expenses of the Lessor, the Agent and the Lenders in connection with the
preparation, execution and delivery of the Operative Documents and the documents
and instruments referred to therein (including, without limitation, the
reasonable fees and disbursements of Mayer, Brown, Rowe & Maw) and all fees and
expenses incurred in connection with residual value insurance obtained by the
Lessor shall be paid with the proceeds of Advances. All references in the
Operative Documents to "attorneys' fees" or "reasonable attorneys fees" shall
mean reasonable attorneys' fees actually incurred, without regard to any
statutory definition thereof.
SECTION 8.9 Severability. Any provision of this Master Agreement that 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.
SECTION 8.10 Liabilities of the Funding Parties: Sharing of Payments. (a)
No Funding Party shall have any obligation to any other Funding Party or to the
Guarantor or any Lessee with respect to the transactions contemplated by the
Operative Documents except those obligations of such Funding Party expressly set
forth in the Operative Documents or except as set forth in the instruments
delivered in connection therewith, and no Funding Party shall be liable for
performance by any other party hereto of such other party's obligations under
the Operative Documents except as otherwise so set forth. No Lender shall have
any obligation or duty to Concord or any other Lessee, any other Funding Parties
or any other Person with respect to the transactions contemplated hereby except
to the extent of the obligations and duties expressly set forth in this Master
Agreement or the Loan Agreement.
(b) If any Funding Party shall obtain any payment (whether voluntary
or involuntary, or through the exercise of any right of set-off or otherwise) on
account of the Advances made by it in excess of its ratable share of payments on
account of the Advances obtained by all the Funding Parties, such Funding
Parties shall forthwith purchase from the other Funding Parties such
participations in the Advances owed to them as shall be necessary to cause such
purchasing Funding Party to share the excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Funding Party, such purchase from each
Funding Party shall be rescinded and such Funding Party shall repay to the
purchasing Funding Party the purchase price to the extent of such Funding
Party's ratable share (according to the proportion of (i) the amount of the
participation purchased from such Funding Party as a result of such excess
payment to (ii) the total amount of such excess payment) of such recovery
together with an amount equal to such Funding Party's ratable share (according
to the proportion of (i) the amount of such Funding Party's required repayment
to (ii) the total amount so recovered from the purchasing Funding Party) of any
interest or other amount paid or payable by the purchasing Funding Party in
respect of the total amount so recovered. Each Funding Party agrees that any
Funding Party so purchasing a participation from another Funding Party pursuant
to this Section 8.10 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off)
58
with respect to such participation as fully as if such Funding Party were the
direct creditor of such Funding Party in the amount of such participation.
(c) Non-Receipt of Funds by the Agent. Unless a Lender notifies the
Agent prior to the date on which it is scheduled to make payment to the Agent of
the proceeds of a Loan that it does not intend to make such payment, the Agent
may assume that such payment has been made. The Agent may, but shall not be
obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender has not in fact made
such payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day (or, if
such amount has not been repaid within two or more Business Days, at the Base
Rate for such day).
SECTION 8.11 Submission to Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Master Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Georgia sitting in Fulton County, the courts of the United States
of America for the Northern District of Georgia, and appellate courts from
any thereof;
(ii) consents that any such action or proceedings may be brought to
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead
or claim the same; and
(iii) agrees that nothing herein shall affect the right to effect
service of process in any manner permitted by law.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS MASTER AGREEMENT,
ANY OTHER OPERATIVE DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
SECTION 8.12 Liabilities of the Agent. The Agent shall have no duty,
liability or obligation to any party to this Master Agreement with respect to
the transactions contemplated hereby except those duties, liabilities or
obligations expressly set forth in this Master Agreement or the Loan Agreement,
and any such duty, liability or obligations of the Agent shall be as expressly
limited by this Master Agreement or the Loan Agreement, as the case may be. All
parties to this Master Agreement acknowledge that the Agent is not, and will not
be, performing any due diligence with respect to documents and information
received pursuant to this Master Agreement or any other Operative Agreement
including, without limitation, any Environmental Audit, Title Policy or survey;
it being understood that if the Funding Parties make a Funding on a
59
Closing Date, unless otherwise expressly stated in writing, the conditions
precedent to such Funding shall be deemed to have been satisfied. Except as
expressly qualified herein, the acceptance by the Agent of any such document or
information shall not constitute a waiver by any Funding Party of any
representation or warranty of Concord or any other Lessee even if such document
or information indicates that any such representation or warranty is untrue.
SECTION 8.13 Disclosure. Notwithstanding anything herein to the contrary,
each party to the Transaction (and each Affiliate and person acting on behalf of
any such party) agree that each party (and each employee, representative and
other agent of such party) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
are provided to such party or such person relating to such tax treatment and tax
structure, except to the extent such disclosure would result in a violation of
any applicable federal or state securities laws. This authorization is not
intended to permit disclosure of any other information including (without
limitation) (i) any portion of any materials to the extent not related to the
tax treatment or tax structure of the transaction, (ii) the identities of
participants or potential participants in the transaction, (iii) the existence
or status of any negotiations, (iv) any pricing or financial information (except
to the extent such pricing or financial information is related to the tax
treatment or tax structure of the transaction) or (v) any other term or detail
not relevant to the tax treatment or the tax structure of the Transaction.
60
IN WITNESS WHEREOF, the parties hereto have caused this Master Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
CONCORD EFS, INC.,
as the Guarantor and as a Lessee
By: /s/ E.T. HASLAM
--------------------------------------
Edward T. Haslam
Chief Financial Officer
S-1 AMENDED AND RESTATED
MASTER AGREEMENT
CONCORD CORPORATE SERVICES, INC.
as a Lessee and as a Subsidiary Guarantor
By: /s/ E.T. HASLAM
--------------------------------------
Edward T. Haslam
Chief Financial Officer
S-2 AMENDED AND RESTATED
MASTER AGREEMENT
STAR SYSTEMS, LLC,
as a Subsidiary Guarantor
By: Concord EFS, Inc., its sole member
By: /s/ RONALD V. CONGEMI
-------------------------------------
Ronald V. Congemi
President
S-3 AMENDED AND RESTATED
MASTER AGREEMENT
CONCORD PAYMENT SERVICES, INC.,
as a Subsidiary Guarantor
By: /s/ E.T. HASLAM
-------------------------------------
Edward T. Haslam
Chief Financial Officer
S-4 AMENDED AND RESTATED
MASTER AGREEMENT
EPSF CORPORATION,
as a Subsidiary Guarantor
By: /s/ E.T. HASLAM
-------------------------------------
Edward T. Haslam
Chief Financial Officer
S-5 AMENDED AND RESTATED
MASTER AGREEMENT
STAR PROCESSING, INC.,
as a Subsidiary Guarantor
By: /s/ E.T. HASLAM
--------------------------------------
Edward T. Haslam
Chief Financial Officer
S-6 AMENDED AND RESTATED
MASTER AGREEMENT
MAS INCO CORPORATION,
as a Subsidiary Guarantor
By: /s/ E.T. HASLAM
--------------------------------------
Edward T. Haslam
Chief Financial Officer
S-7 AMENDED AND RESTATED
MASTER AGREEMENT
STAR SYSTEMS, INC.,
as a Subsidiary Guarantor
By: /s/ RONALD V. CONGEMI
--------------------------------------
Ronald V. Congemi
President
S-8 AMENDED AND RESTATED
MASTER AGREEMENT
STAR NETWORKS, INC.,
as a Subsidiary Guarantor
By: /s/ RONALD V. CONGEMI
--------------------------------------
Ronald V. Congemi
President
S-9 AMENDED AND RESTATED
MASTER AGREEMENT
STAR SYSTEMS ASSETS, INC.,
as a Subsidiary Guarantor
By: /s/ RONALD V. CONGEMI
--------------------------------------
Ronald V. Congemi
President
S-10 AMENDED AND RESTATED
MASTER AGREEMENT
SUNTRUST EQUITY FUNDING, LLC,
as Lessor
By: /s/ R. TODD SHUTLEY
--------------------------------------
R. Todd Shutley
Senior Vice President and Manager
S-11 AMENDED AND RESTATED
MASTER AGREEMENT
SUNTRUST BANK, as Agent
By: /s/ BRYAN W. FORD
--------------------------------------
Bryan W. Ford
Director
S-12 AMENDED AND RESTATED
MASTER AGREEMENT
BNP PARIBAS, as a Lender
By: /s/ SEAN T. CONLEN
--------------------------------------
Sean T. Conlen
Managing Director
By: /s/ TJALLING TERPSTRA
--------------------------------------
Tjalling Terpstra
Director
S-13 AMENDED AND RESTATED
MASTER AGREEMENT
SCHEDULE 2
Original Commitments
--------------------
Agreement Amounts
- --------------------- ------------------
1998 Master Agreement $ 15,000,000
2000 Master Agreement $ 20,000,000
2002 Master Agreement $ 55,000,000
Lease Balances
--------------
Lease Leased Property Balance
- ---------- -------------------- -------------
1998 Lease Wilmington, Delaware
2000 Lease Marietta, Georgia
2002 Lease Memphis, Tennessee
SCHEDULE 2.2
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 64.1026%
Lessor Commitment: $ 52,500,000
Net Invested Amount $ 5,362,500
Allocated Amount $ 57,137,500
Lender Commitment Percentages:
BNP Paribas 35.8974
Lender Commitments:
BNP Paribas $ 35,000,000
SCHEDULE 8.2
ADDRESSES FOR NOTICES
Concord: Concord EFS, Inc.
1100 Carr Road
Washington, Delaware 19809
Attn: Mr. Edward T. Haslam and
J. Richard Buchignani, Esq.
Facsimile: 302-791-8764
and 302-791-8762
with a copy to: Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, Pennsylvania 19103
Attn: Daniel W. Simcox, Esq.
Facsimile: 215-994-2222
Dechert LLP
200 Clarendon Street, 27/th/ Floor
Boston, MA 02116-5021
Attn: Bruce Hickey, Esq.
Facsimile: 617-426-6567
Lessor: SunTrust Equity Funding, LLC
c/o Atlantic Financial Group, Ltd.
2808 Fairmount, Suite 250
Dallas, Texas 75201
Attn: Stephen Brookshire
Facsimile: 214-871-2799
Agent: For financial statements and
compliance certificates:
SunTrust Bank
303 Peachtree Street, 25/th/ Floor
Atlanta, Georgia 30308
Attn: Agency Services
Facsimile: 404-658-4906 or
404-724-3879
For all other notices and deliveries:
SunTrust Bank
6410 Poplar Avenue
Suite 320
Memphis, Tennessee 38119
Attn: Bryan Ford
Facsimile: 901-766-7565
Lender: BNP Paribas
725 South Figueroa Street
Los Angeles, California 90017
Attn: Sean Conlen
Facsimile: 213-488-9602
APPENDIX A
to
Master Agreement, Lease,
Loan Agreement and Construction Agency Agreement
------------------------------------------------
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative Document),
document or instrument means such agreement, document or instrument as
amended, supplemented or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents and reference to any promissory note includes any
promissory note which is an extension or renewal thereof or a substitute or
replacement therefor;
(v) reference to any Applicable Law or Requirement of Law means
such Applicable Law or Requirement of Law as amended, modified, codified,
replaced or reenacted, in whole or in part, and in effect from time to
time, including rules and regulations promulgated thereunder and reference
to any section or other provision of any Applicable Law or Requirement of
Law means that provision of such Applicable Law from time to time in effect
and constituting the substantive amendment, modification, codification,
replacement or reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article, Section,
Appendix, Schedule or Exhibit means such Article or Section thereof or
Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar import
shall be deemed references to an Operative Document as a whole and not to
any particular Article, Section, paragraph or other provision of such
Operative Document;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding such
term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time, "from"
means "from and including" and "to" means "to but excluding".
B. Accounting Terms. In each Operative Document, unless expressly
otherwise provided, all terms of an accounting character used in the Operative
Documents shall be interpreted, all accounting determinations under the
Operative Documents shall be made, and all financial statements required to be
delivered under the Master Agreement shall be prepared, in accordance with GAAP.
C. Conflict in Operative Documents. If there is any conflict between any
Operative Documents, each such Operative Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Master Agreement shall
prevail and control.
D. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring any Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears, terms defined
herein have the respective indicated meanings when used in each
Operative Document.
"A Allocated Amount" means the Lessor's Pro Rata Share of the A Percentage
of Fundings made pursuant to the Loan Agreement and the Master Agreement.
"A Loan" means with respect to any Lender, such Lender's Pro Rata Share of
the A Percentage of Fundings made pursuant to the Loan Agreement and the Master
Agreement.
"A Note" is defined in Section 2.2 of the Loan Agreement.
"A Percentage" means 83.5%.
"Acquisition Related Special Charges" for any fiscal quarter means charges
to income related specifically to acquisitions by Concord and its Subsidiaries
accounted for during such fiscal quarter, it being understood that Acquisition
Related Special Charges shall not include write-downs of goodwill, other charges
related to future performance and costs and accruals for restructuring or
accrual charges of Concord or any restructuring or accrual charges of Concord or
any of its Subsidiaries for its operations that are not specifically related to
such acquisition.
"Acquisition Related Special Gains" for any fiscal quarter means gains
arising from any write-up of assets resulting from acquisitions, earnings of any
Person acquired realized by such Person prior to the acquisition and any gain
resulting from extraordinary or non-recurring items resulting from acquisitions,
in each case realized by Concord or any of its Subsidiaries during such fiscal
quarter.
"Addition Agreement" means an addition agreement, substantially in the
form of Exhibit K to the Master Agreement.
-2-
"Address" means with respect to any Person, its address set forth in
Schedule 8.2 to the Master Agreement or such other address as it shall have
identified to the parties to the Master Agreement in writing in the manner
provided for the giving of notices thereunder.
"Adjusted LIBO Rate" means, with respect to each Rent Period for a LIBOR
Advance, the rate obtained by dividing (A) LIBOR for such Rent Period by (B) a
percentage equal to 1 minus the then stated maximum rate (stated as a decimal)
of all reserves requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or against any successor category of liabilities as
defined in Regulation D).
"Adjusted Net Income" for any fiscal quarter means the Consolidated Net
Income (or Deficit) for such fiscal quarter adjusted to eliminate any and all
Acquisition Related Special Charges and Acquisition Related Special Gains for
such fiscal quarter.
"Advance" means a LIBOR Advance or a Base Rate Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person, whether
through the ownership of voting securities, by contract or otherwise. For
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by", and "under common control with") as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person.
"AFG" means Atlantic Financial Group, Ltd., a Texas limited partnership.
"AFG Transferee" is defined in paragraph 2 of the Preliminary Statements
of the Master Agreement.
"After-Tax Basis" means (a) with respect to any payment to be received by
an Indemnitee (which, for purposes of this definition, shall include any Tax
Indemnitee), the amount of such payment supplemented by a further payment or
payments so that, after deducting from such payments the amount of all Taxes
(net of any current credits, deductions or other Tax benefits arising from the
payment by the Indemnitee of any amount, including Taxes, for which the payment
to be received is made) imposed currently on the Indemnitee by any Governmental
Authority or taxing authority with respect to such payments, the balance of such
payments shall be equal to the original payment to be received and (b) with
respect to any payment to be made by any Indemnitee, the amount of such payment
supplemented by a further payment or payments so that, after increasing such
payment by the amount of any current credits or other Tax benefits realized by
the Indemnitee under the laws of any Governmental Authority or taxing authority
resulting from the making of such payments, the sum of such payments (net of
such credits or benefits) shall be equal to the original payment to be made;
provided, however, for the purposes of this definition, and for purposes of any
payment to be made to either a Lessee or an Indemnitee on an after-tax basis, it
shall be assumed that (i) federal, state and local taxes are payable at the
highest combined marginal federal and state statutory income tax rate (taking
into account the deductibility of state income taxes for federal income tax
purposes) applicable to
-3-
corporations from time to time and (ii) such Indemnitee or such Lessee has
sufficient income to utilize any deductions, credits (other than foreign tax
credits, the use of which shall be determined on an actual basis) and other Tax
benefits arising from any payments described in clause (b) of this definition.
"Agent" means SunTrust Bank, a Georgia banking corporation, in its
capacity as agent under the Master Agreement and the Loan Agreement.
"Agent's Fee Letter" means the Amended and Restated Agent's Fee Letter,
dated as of June 26, 2003, between the Agent and Concord.
"Allocated Amount" means the sum of the A Allocated Amount and the B
Allocated Amount.
"Alterations" means, with respect to any Leased Property, fixtures,
alterations, improvements, modifications and additions to such Leased Property.
"Applicable Law" means all applicable laws (including Environmental Laws),
rules, regulations (including proposed, temporary and final income tax
regulations), statutes, treaties, codes, ordinances, permits, certificates,
orders and licenses of and interpretations by, any Governmental Authority, and
applicable judgments, decrees, injunctions, writs, orders or like action of any
court, arbitrator or other administrative, judicial or quasi-judicial tribunal
or agency of competent jurisdiction (including those pertaining to health,
safety or the environment (including, without limitation, wetlands) and those
pertaining to the construction, use or occupancy of any Leased Property).
"Applicable Margin" means (i) 0 for Base Rate Advances and (ii) for LIBOR
Advances, (A) 0.50%, if the Funded Debt to Tangible Capitalization Ratio for the
most recently ended fiscal quarter is less than 15%, (B) 0.75%, if the Funded
Debt to Tangible Capitalization Ratio for the most recently ended fiscal quarter
is equal to or greater than 15%, but less than 25%, (C) 1.00%, if the Funded
Debt to Tangible Capitalization Ratio for the most recently ended fiscal quarter
is equal to or greater than 25%.
"Appraisal" is defined in Section 3.1 of the Master Agreement.
"Appraiser" means an MAI appraiser reasonably satisfactory to the Agent.
"Architect" means with respect to any Leased Property the architect engaged
in connection with the construction of the related Building, if any, who may be
an employee of the General Contractor for such Leased Property.
"Architect's Agreement" means, with respect to any Leased Property, the
architectural services agreement, if any, between the Construction Agent (or a
Lessee) and the related Architect.
"Assignment and Assumption" means an assignment and assumption agreement,
substantially in the form of Exhibit F to the Master Agreement.
-4-
"Assignment of Lease and Rents" means, with respect to any Leased Property,
the Assignment of Lease and Rents, dated as of the related Closing Date, from
the Lessor to the Agent, substantially in the form of Exhibit B to the Master
Agreement.
"Authority" means a development or similar authority of any state, county
or municipality that is an issuer of Bonds.
"Award" means any award or payment received by or payable to the Lessor or
a Lessee on account of any Condemnation or Event of Taking (less the actual
costs, fees and expenses, including reasonable attorneys' fees, incurred in the
collection thereof, for which the Person incurring the same shall be reimbursed
from such award or payment).
"B Allocated Amount" means the Lessor's Pro Rata Share of the B Percentage
of Fundings made pursuant to the Loan Agreement and the Master Agreement.
"B Loan" means, with respect to any Lender, such Lender's Pro Rata Share of
the B Percentage of Fundings made pursuant to the Loan Agreement and the Master
Agreement.
"B Note" is defined in Section 2.2 of the Loan Agreement.
"B Percentage" means 11.0%.
"Banking Agency" means any Governmental Authority charged with the
regulation of financial institutions.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
"Base Rate" means (with any change in the Base Rate to be effective as of
the date of change of either of the following rates) the higher of (i) the rate
which the Agent publicly announces from time to time as its prime lending rate,
as in effect from time to time, and (ii) the Federal Funds Rate, as in effect
from time to time, plus one-half of one percent (0.50%) per annum. The Agent's
prime lending rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to customers; the Agent may make commercial
loans or other loans at rates of interest at, above or below the Agent's prime
lending rate. The Base Rate is determined daily.
"Base Rate Advance" means that portion of the Funded Amount bearing
interest at the Base Rate.
"Base Term" means, with respect to any Leased Property, (a) the period
commencing on the related Closing Date and ending on January 12, 2010 or (b)
such shorter period as may result from earlier termination of the Lease as
provided therein.
"Basic Rent" means the rent payable pursuant to Section 3.1 of the Lease,
determined in accordance with the following: each installment of Basic Rent
payable on any Payment Date shall be in an amount equal to the sum of (A) the
aggregate amount of Lender Basic Rent payable on such Payment Date, plus (B) the
aggregate amount of Lessor Basic Rent payable on
-5-
such Payment Date, in each case for the Leased Property or Properties that are
then subject to the Lease.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Board" means the Board of Governors of the Federal Reserve System and any
successor thereto or to the functions thereof.
"Board of Directors", with respect to a corporation, means either the Board
of Directors or any duly authorized committee of that Board which pursuant to
the by-laws of such corporation has the same authority as that Board as to the
matter at issue.
"Bonds" means industrial revenue or development bonds issued by a state,
county or municipal authority in connection with any Leased Property.
"Building" means, with respect to any Leased Property, the buildings,
structures and improvements located or to be located on the related Land, along
with all fixtures used or useful in connection with the operation of such Leased
Property, including, without limitation, all furnaces, boilers, compressors,
elevators, fittings, pipings, connectives, conduits, ducts, partitions,
equipment and apparatus of every kind and description now or hereafter affixed
or attached to the Building, equipment, if any, financed by the Lessor and/or
the Lenders and all Alterations (including all restorations, repairs,
replacements and rebuilding of such buildings, improvements and structures)
thereto (but in each case excluding trade fixtures and Lessee Equipment).
"Business Day" means any day other than a Saturday, Sunday or other day on
which banks are required or authorized to be closed for business in Atlanta,
Georgia and, if the applicable Business Day relates to a LIBOR Advance, on which
trading is not carried on by and between banks in the London interbank market.
"Capitalized Leases" means leases under which any Obligor is the lessee or
obligor, the discounted future rental payment obligations under which are
capitalized or are required to be capitalized on the balance sheet of the lessee
or obligor in accordance with GAAP.
"Cash Collateral Account" is defined in Section 2.6 of the Master
Agreement.
"Cash Collateral Trustee" is defined in Section 2.6 of the Master
Agreement.
"Casualty" means an event of damage or casualty relating to all or part of
any Leased Property that does not constitute an Event of Loss.
"CCS" means Concord Corporate Services, Inc. (formerly known as Electronic
Payment Services, Inc.), a Delaware corporation.
"Claims" means liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, proceedings, settlements,
utility charges, costs, expenses and
-6-
disbursements (including, without limitation, reasonable legal fees and
expenses) of any kind and nature whatsoever.
"Closing Date" means with respect to each parcel of Land, the date on which
(i) such Land is acquired by the Lessor pursuant to a Purchase Agreement or such
Land is leased to the Lessor pursuant to a Ground Lease and (ii) the initial
Funding occurs with respect to such Land under the Master Agreement. The Closing
Date with respect to any Leased Property (i) originally subject to the 1998
Lease will be the date on which the initial funding with respect to such Leased
Property occurred under the 1998 Master Agreement, (ii) originally subject to
the 2000 Lease will be the date on which the initial funding with respect to
such Leased Property occurred under the 2000 Master Agreement and (iii)
originally subject to the 2002 Lease will be the date on which the initial
funding with respect to such Leased Property occurred under the 2002 Master
Agreement.
"Code" or "Tax Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means as to each Funding Party, its obligation to make
Fundings as investments in each Leased Property (in the case of the Lessor), or
to make Loans to the Lessor (in the case of the Lenders), in an aggregate amount
not to exceed at any one time outstanding the amount set forth for such Funding
Party on Schedule 2.2 to the Master Agreement (as it may be adjusted from time
to time pursuant to Section 6 of the Master Agreement).
"Commitment Fee" is defined in Section 2.2(h) of the Master Agreement.
"Commitment Fee Percentage" means (i) 0.10%, if the Funded Debt to Tangible
Capitalization Ratio for the most recently ended fiscal quarter is less than
15%, (ii) 0.15%, if the Funded Debt to Tangible Capitalization Ratio for the
most recently ended fiscal quarter is equal to or greater than 15%, but less
than 25%, and (iii) 0.20%, if the Funded Debt to Tangible Capitalization Ratio
for the most recently ended fiscal quarter is equal to or greater than 25%.
"Commitment Percentage" means as to any Funding Party, at a particular
time, the percentage of the aggregate Commitments in effect at such time
represented by such Funding Party's Commitment, as such percentage is shown for
such Funding Party on Schedule 2.2 to the Master Agreement (as it may be
adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Completion Date" with respect to any Leased Property means the Business
Day on which the conditions specified in Section 3.5 of the Master Agreement
have been satisfied or waived with respect to such Leased Property.
"Concord" means Concord EFS, Inc., a Delaware corporation.
"Condemnation" means any condemnation, requisition, confiscation, seizure
or other taking or sale of the use, occupancy or title to any Leased Property or
any part thereof in, by or on account of any actual eminent domain proceeding or
other action by any Governmental Authority or other Person under the power of
eminent domain or any transfer in lieu of or in anticipation thereof, which in
any case does not constitute an Event of Taking. A Condemnation
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shall be deemed to have "occurred" on the earliest of the dates that use is
prevented or occupancy or title is taken.
"Consolidated or consolidated" means, with reference to any term
defined herein, shall mean that term as applied to the accounts of Concord and
its Subsidiaries, consolidated in accordance with GAAP.
"Consolidated EBITR" means with respect to any fiscal period, the result
(determined with respect to the same period and without duplication) of the
following: (a) Consolidated Net Income (or Deficit); plus (b) all taxes included
as an expense of Concord and its Subsidiaries in the determination of
Consolidated Net Income (or Deficit); plus (c) interest included as an expense
of Concord and its Subsidiaries in the determination of Consolidated Net Income
(or Deficit); plus (d) all Rents included as an expense of Concord and its
Subsidiaries in the determination of Consolidated Net Income (or Deficit).
"Consolidated Net Income (or Deficit)" means with respect to any fiscal
period, the consolidated net income (or deficit) of Concord and its
Subsidiaries, after deduction of all expenses, taxes, and other proper charges,
determined in accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any date the sum of capital
surplus, earned surplus and capital stock, minus deferred charges (including,
but not limited to, unamortized debt discount and expense, organization expenses
and development expenses), intangibles and treasury stock of Concord and its
consolidated Subsidiaries, all determined as of such date in accordance with
GAAP.
"Construction" means, with respect to any Leased Property, the construction
of the related Building pursuant to the related Plans and Specifications.
"Construction Agency Agreement" means the Amended and Restated Construction
Agency Agreement, dated as of June 26, 2003, between Concord and the Lessor, and
shall include the Original Construction Agency Agreement for the period that it
was in effect.
"Construction Agency Event of Default" is defined in Section 5.1 of the
Construction Agency Agreement.
"Construction Agent" means Concord in its capacity as construction agent
pursuant to the Construction Agency Agreement.
"Construction Budget" is defined in Section 2.4 of the Construction Agency
Agreement.
"Construction Commencement Date" is defined in Section 2.3 of the
Construction Agency Agreement.
"Construction Conditions" means the conditions set forth in Section 3.5 of
the Master Agreement.
"Construction Contract" means, with respect to any Leased Property, that
certain construction contract, if any, between a Lessee or the Construction
Agent and a General
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Contractor for the Construction of the related Building, provided that such
contract shall be assigned to the Lessor, and such assignment shall be consented
to by such General Contractor, pursuant to an assignment of such construction
contract substantially in the form of the Security Agreement and Assignment set
forth as Exhibit C to the Master Agreement.
"Construction Costs" with respect to any Leased Property means the
acquisition cost of the related Land, all costs related to any ground lease of
the related Land, all costs incurred in connection with the design, development
and construction of the Building on the related Land, as well as the costs of
excavating, grading, landscaping and other work undertaken to prepare the Land
for construction of a Building, the purchase price of all Funded Equipment
related to such Leased Property and all other fees, costs and expenses incurred
in connection with the acquisition, ground leasing, development and construction
of such Leased Property, including all interest on the Loans and Yield on the
Lessor's Invested Amount related to such Leased Property accrued during the
Construction Term therefor, planning, engineering, development, architects',
consultants', brokers', attorneys' and accountants' fees, appraisal costs,
survey costs, insurance costs, transaction costs, demolition costs, permitting
costs, costs for title insurance and other soft costs related to such Leased
Property; provided, however, the foregoing shall exclude any Force Majeure
Losses related to such Leased Property.
"Construction Failure Payment" means, with respect to any Leased Property
and as of any date of calculation, an amount equal to (i) 100% of the related
Land Acquisition Cost, plus (ii) 89.9% of an amount equal to the costs of
acquiring any Building located on the related Land as of the Closing Date
therefor, plus the Construction Costs (exclusive of Land Acquisition Cost) that
are capitalizable in accordance with GAAP as construction costs incurred as of
such date of calculation or incurred by the Agent or any of the Funding Parties
after the occurrence of a Construction Agency Event of Default.
"Construction Force Majeure Declaration" is defined in Section 3.4 of the
Construction Agency Agreement.
"Construction Force Majeure Event" means, with respect to any Leased
Property:
(a) an act of God arising after the related Closing Date, or
(b) any change in any Applicable Law arising after such Closing Date and
relating to the use of the Land or the construction of a Building on
the Land, or
(c) strikes, lockouts, labor troubles, unavailability of materials, riots,
insurrections or other causes beyond a Lessee's control
which prevents the Construction Agent from completing the Construction prior to
the Scheduled Construction Termination Date and which could not have been
avoided or which cannot be remedied by the Construction Agent through the
exercise of all commercially reasonable efforts or the expenditure of funds and,
in the case of (b) above, the existence or potentiality of which was not known
to and could not have been discovered prior to such Closing Date through the
exercise of reasonable due diligence by the Construction Agent.
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"Construction Land Interest" means each parcel of Land, including any
Building or portion thereof thereon, for which the Completion Date has not yet
occurred.
"Construction Term" means, with respect to any Leased Property, the period
commencing on the related Closing Date and ending on the related Construction
Term Expiration Date, or such shorter period as may result from earlier
termination of the Lease as provided therein.
"Construction Term Expiration Date" means, with respect to any Leased
Property, the earliest of the following:
(a) the related Completion Date,
(b) the date on which the aggregate Funded Amounts equal the Commitments,
and
(c) the related Scheduled Construction Termination Date.
"Contractual Obligation", as applied to any Person, means any provision of
any Securities issued by that Person or any indenture, mortgage, deed of trust,
contract, undertaking, agreement, instrument or other document to which that
Person is a party or by which it or any of its properties is bound or to which
it or any of its properties is subject (including, without limitation, any
restrictive covenant affecting any of the properties of such Person).
"Covered Administrative Action" means any adverse administrative action
against or involving EPS or any Subsidiary with respect to their respective
business, operations or condition, including without limitation any (i)
commitment letter, memorandum of understanding, notice of undercapitalized
status or other requirement to submit a capital restoration plan or other
similar arrangement related to the capital adequacy of EPS or any Subsidiary,
(ii) supervisory agreement or other similar arrangement, (iii) notice of
charges, (iv) temporary order suspending deposit insurance, (v) notice of intent
to revoke deposit insurance, (vi) cease and desist order, (vii) order to suspend
or remove any institution-affiliated party (as defined in 12 U.S.C. Section
1813(u)), (viii) notice of assessment of civil money penalties (including
against any institution-affiliated party (as so defined)), (ix) directive,
order, plan or material proposal relating to capital requirements, (x) proposed
or final directive to take prompt regulatory action, notice of intention to
reclassify, or order to dismiss a director or officer, (xi) proposal to require,
or order requiring, divestiture or liquidation of any Subsidiary pursuant to 12
U.S.C. Section 1831o(f)(2)(I), (xii) proposed or final order restricting the
ability of EPS to make a capital distribution or (xiii) similar administrative
notice or action.
"Deed" means, with respect to any Land, a deed in the form customary in the
applicable jurisdiction, dated the applicable Closing Date, from the applicable
Seller to the Lessor, conveying such Land.
"Default" means any Event of Default or Potential Event of Default.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate
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option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
"Distribution" means, with respect to any Person, the declaration or
payment of any dividend on or in respect of any shares of any class of capital
stock, other than (a) dividends payable solely in shares of common stock of such
Person and (b) the payment of cash in lieu of the distribution of fractional
shares in the event of any stock dividend or stock split; the purchase,
redemption, or other retirement of any shares of any class of capital stock of
such Person, directly or indirectly by such Person through a Subsidiary of such
Person or otherwise, unless such capital stock shall be redeemed or reacquired
through the exchange of such stock with stock of the same class, and except for
the redemption, repurchase, or acquisition of stock of any Subsidiary by
Concord; the return of capital by such Person to its shareholders as such; or
any other distribution (whether of such or other property) on or in respect of
any shares of any class of capital stock of such Person.
"Dollars" and the sign "$" means lawful money of the United States of
America.
"Effective Date" means the effective date of the merger of the AFG
Transferee into the Lessor, which date will not be later than June 30, 2003.
"Eligible Assignee" means a Person that at the time of any assignment is
(a) a commercial bank organized under the laws of the United States or any state
thereof or under the laws of a country which is a member of the Organization for
Economic Cooperation and Development, having combined capital and surplus in
excess of $500,000,000 or (b) a finance company, insurance company or other
financial institution which in the ordinary course of business extends credit of
the type extended hereunder and that has total assets in excess of
$1,000,000,000.
"Engineer" means, with respect to any Leased Property, the engineer engaged
in connection with the construction of the related Building, if any, who may be
an employee of the General Contractor for such Leased Property.
"Engineer's Agreement" means, with respect to any Leased Property, the
engineering services agreement, if any, between the Construction Agent, in its
capacity as agent for Lessor, and the related Engineer.
"Environment" shall have the meaning set forth in 42 U.S.C. Section9601(8)
as defined on the date of the Master Agreement, and "Environmental" shall mean
pertaining or relating to the Environment.
"Environmental Audit" means, with respect to each parcel of Land, a Phase I
Environmental Assessment, dated no more than 90 days prior to the related
Closing Date, by an environmental services firm satisfactory to the Funding
Parties and Concord.
"Environmental Laws" means and includes the Resource Conservation and
Recovery Act of 1976, (RCRA) 42 U.S.C. Sections 6901-6987, as amended by the
Hazardous and Solid Waste
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Amendments of 1984, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. Sections 9601-9657, (CERCLA), the Hazardous Materials
Transportation Act of 1975, 49 U.S.C. Sections 1801-1812, the Toxic Substances
Control Act, 15 U.S.C. Sections 2601-2671, the Clean Air Act, 42 U.S.C. Sections
7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Sections 136 et seq., and all similar federal, state and local environmental
laws, ordinances, rules, orders, statutes, decrees, judgments, injunctions,
codes and regulations, and any other federal, state or local laws, ordinances,
rules, codes and regulations, relating to the environment, human health or
natural resources or the regulation or control of or imposing liability or
standards of conduct concerning human health, the environment, Hazardous
Materials or the clean-up or other remediation of any Leased Property, or any
part thereof, as any of the foregoing may have been from time to time amended,
supplemented or supplanted.
"EPS" means Concord Corporate Services, Inc.(formerly known as Electronic
Payment Services, Inc.), a Delaware corporation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor federal statute, and the regulations
promulgated and rulings issued thereunder.
"ERISA Group" means Concord, any Subsidiary and all members of a controlled
group of corporations and all trades and businesses (whether or not
incorporated) under common control which, together with Concord and any
Subsidiary, are treated as a single employer with Concord under Section 414 of
the Code.
"ERISA Reportable Event" means a reportable event (other than a reportable
event described in Subsections 4043(b)(2)-(4) and 4043(b)(6)-(9), which do not
require a thirty (30) day notice to the PBGC) with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
"Event of Default" means any event or condition designated as an "Event of
Default" in Article XII of the Lease.
"Event of Loss" is defined in Section 10.1 of the Lease.
"Event of Taking" is defined in Section 10.2 of the Lease.
"Executive Officer" means with respect to any Person, the Chief Executive
Officer, President, Vice Presidents (if elected by the Board of Directors of
such Person), Chief Financial Officer, Treasurer, Secretary and any Person
holding comparable offices or duties (if elected by the Board of Directors of
such Person).
"Fair Market Sales Value" means, with respect to any Leased Property or any
portion thereof, the fair market sales value as determined by an independent
appraiser chosen by the related Lessee and reasonably acceptable to the Lessor
and the Agent (unless an Event of Default has occurred and is continuing, in
which case the appraiser shall be chosen by the Agent), that would be obtained
in an arm's-length transaction between an informed and willing buyer (other
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than a lessee currently in possession) and an informed and willing seller, under
no compulsion, respectively, to buy or sell and neither of which is related to
the Lessor or any Lessee, for the purchase of such Leased Property. Such fair
market sales value shall be calculated as the value for such Leased Property,
assuming, in the determination of such fair market sales value, that such Leased
Property is in the condition and repair required to be maintained by the terms
of the Lease (unless such fair market sales value is being determined for
purposes of Section 13.1 of the Lease and except as otherwise specifically
provided in the Lease or the Master Agreement, in which case this assumption
shall not be made; it being understood that if such fair market sales value is
being determined for purposes of the Construction Agency Agreement, such value
shall be determined for the related Leased Property in its then state of
completion, but assuming that all construction had been done in accordance with
the standards required pursuant to the Construction Agency Agreement).
"Fair Value" of any Leased Property means the sum of (i) the Land
Acquisition Cost for such Leased Property, plus (ii) the cost of acquiring any
Building located on the related Land on the Closing Date for such Leased
Property and all Construction Costs for such Leased Property that are
capitalizable as construction costs in accordance with GAAP.
"FDC Merger" means the merger of Concord with a wholly owned subsidiary of
First Data Corporation, with Concord surviving the merger and becoming a wholly
owned subsidiary of First Data Corporation, substantially as set forth in the
filings with respect thereto that have been made with the SEC prior to the
Effective Date.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Final Rent Payment Date" with respect to any Leased Property is defined in
Section 13.1(e) of the Lease.
"Fixed Charges" means for any fiscal period, the sum of (i) the expenses of
Concord and its Subsidiaries for such period for interest payable with respect
to Indebtedness (including, without limitation, imputed interest on Capitalized
Leases) and all fees paid on account of or with respect thereto, plus (ii)
regularly scheduled principal payments made or required to be made on account of
Indebtedness (including, without limitation, Capitalized Leases) for such
period, plus (iii) Rents paid during such period, in each case determined in
accordance with GAAP.
"Force Majeure Losses" means, with respect to any Leased Property and as of
any date of calculation, the loss incurred by the Lessor in connection with a
Construction Force Majeure Event with respect to which a Construction Force
Majeure Declaration has been made, measured by the sum of (i) the lower of (A)
the insurance proceeds paid with respect thereto plus the related deductible
amount and (B) the reduction in Fair Market Sales Value of the Leased
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Property as a result of the Construction Force Majeure Event as set forth in an
Appraisal, plus (ii) other direct costs incurred by the Lessor that the Lessor
has consented to in accordance with Section 3.4 of the Construction Agency
Agreement in connection with such Construction Force Majeure Event to the extent
such costs are not covered by insurance; provided that insurance proceeds shall
be used in such calculation only to the extent the event giving rise to the loss
can be remediated for an amount equal to the resulting insurance proceeds plus
the deductible; provided, further, that it is expressly understood and agreed
that Force Majeure Losses shall not include the costs of repairing damage
occasioned not as a result of the Construction Force Majeure Event, but as a
result of the Construction Agent's failure to take all reasonable steps to
minimize the damages caused by such Construction Force Majeure Event.
"Funded Amount" means, as to the Lessor, the Lessor's Invested Amount
(excluding Yield thereon to the extent not capitalized pursuant to Section
2.3(c) of the Master Agreement), and, as to each Lender, the outstanding
principal amount of such Lender's Loans.
"Funded Debt" means at any time, an amount equal to the sum of the then
outstanding balances of (a) Capitalized Leases, plus (b) other Indebtedness for
borrowed money or other extensions of credit excluding the Net Investment Debt
Amount.
"Funded Debt to Tangible Capitalization Ratio" as of the last day of any
fiscal quarter means the ratio, referenced as a percentage, of (i) the Funded
Debt of Concord and its Subsidiaries, on a Consolidated basis, as of such day to
(ii) the sum of (A) the amount in clause (i), plus (B) the Consolidated Tangible
Net Worth as of such day.
"Funded Equipment" means equipment, furnishings and other personal property
that is located at or in a Leased Property and that has been financed or
purchased with the proceeds of Fundings.
"Funding" means any funding by the Funding Parties pursuant to Section 2.2
of the Master Agreement.
"Funding Date" means each Closing Date and each other date on which a
Funding occurs under Section 2 of the Master Agreement.
"Funding Parties" means the Lessor, the participant(s) to which the Lessor
sells a participation interest in the Transaction so long as such participant(s)
is an Affiliate of SunTrust Banks, Inc. and the Lenders, collectively.
"Funding Party Balance" means, with respect to any Leased Property, (i) for
the Lessor as of any date of determination, an amount equal to the sum of the
outstanding related Lessor's Invested Amount, all accrued and unpaid Yield on
such outstanding related Lessor's Invested Amount, all unpaid related fees owing
to the Lessor under the Operative Documents, and all other related amounts owing
to the Lessor by the Lessees under the Operative Documents, and (ii) for any
Lender as of any date of determination, an amount equal to the sum of the
outstanding related Loans of such Lender, all accrued and unpaid interest
thereon, all unpaid related fees owing to such Lender under the Operative
Documents, and all other related amounts owing to such Lender by the Lessees
under the Operative Documents.
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"Funding Request" is defined in Section 2.2 of the Master Agreement.
"Funding Termination Date" means the earlier of (i) July 12, 2004 and (ii)
the termination of the Commitments pursuant to Section 5.2 of the Loan
Agreement.
"Future Value" means, with respect to any component of the Limited Recourse
Value Percentage, the accreted value of such component as of the end of the
Basic Term or the date of calculation, respectively, that is giving effect to
the time value of money using the Implicit Rate.
"GAAP" means principles that are (i) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time and (ii) consistently applied with
past financial statements of Concord adopting the same principles; provided that
in each case referred to in this definition of "GAAP" a certified public
accountant would, insofar as the use of such accounting principles impertinent,
be in a position to deliver an unqualified opinion (other than qualification
regarding changes in GAAP) as to financial statements in which such principles
have been properly applied.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law and shall include, without limitation, all citings, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of any Leased Property.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Ground Lease" means, with respect to any Land, the ground lease between
the related Ground Lessor and the Lessor pursuant to which a leasehold estate is
conveyed in the Land to the Lessor.
"Ground Lessor" means, as to any Land, the ground lessor of such Land.
"Guarantor" means Concord EFS, Inc., a Delaware corporation.
"Guaranty Agreement" means the Amended and Restated Guaranty Agreement,
dated as of June 26, 2003, issued by Concord.
"Hazardous Material" or "Hazardous Substance" means any substance, waste or
material which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, including
petroleum, crude oil or any fraction thereof, petroleum derivatives, by products
and other hydrocarbons, or which is or becomes regulated under any Environmental
Law by any Governmental Authority, including any agency, department, commission,
board or instrumentality of the United States, any jurisdiction in which a
Leased Property is located or any political subdivision thereof and also
including, without limitation, asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls ("PCBs") and radon gas.
-15-
"IDB Documentation" means the Bonds, each IDB Lease and all other
agreements, documents, contracts and instruments entered into in connection with
any Bonds or IDB Property.
"IDB Lease" means a lease between the Lessor and an Authority with respect
to a Leased Property.
"IDB Property" means each Leased Property that is the subject of Bonds.
"Implicit Rate" means 1.617% per annum.
"Indebtedness" means all obligations, contingent and otherwise, that in
accordance with GAAP should be classified upon the consolidated balance sheet of
Concord and its Subsidiaries as liabilities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (a) all obligations for borrowed money or other extensions of credit
whether or not secured or unsecured, absolute or contingent, including, without
limitation, unmatured reimbursement obligations with respect to letters of
credit or guarantees issued for the account of or on behalf of Concord and its
Subsidiaries, and all obligations representing the deferred purchase price of
property, other than accounts payable arising in the ordinary course of
business, (b) all obligations evidenced by bonds, notes, debentures or other
similar instruments; (c) all liabilities secured by any mortgage, pledge,
security interest, lien, charge, or other encumbrance existing on property owned
or acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; (d) all guarantees, endorsements(other than endorsements in
the ordinary course of business of negotiable instruments or documents for
deposit or collection), indemnities owed to third parties and other contingent
obligations whether direct or indirect in respect of indebtedness of others or
otherwise, including any obligations with respect to Derivative Obligations, any
obligation to supply funds to or in any manner to invest in, directly or
indirectly, the debtor, to purchase indebtedness, or to assure the owner of
indebtedness against loss, through an agreement to purchase goods, supplies, or
services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner or otherwise, and the obligations to reimburse
the issuer in respect of any letters of credit; (e) that portion of all
obligations arising under Capital Leases that is required to be capitalized on
the consolidated balance sheet of Concord and its Subsidiaries; and (f) all
redeemable preferred stock of Concord or its Subsidiaries valued at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends.
"Indemnitee" means SunTrust Bank, in its individual capacity and in its
capacity as Agent, and each Funding Party, and their respective Affiliates,
successors, permitted assigns, permitted transferees, employees, officers,
directors and agents; provided, however, that in no event shall any Lessee be an
Indemnitee; provided, further that with respect to any indemnification arising
with respect to any Leased Property during the Construction Period for such
Leased Property, the Indemnitee as it relates to such Leased Property shall only
be the Lessor (except as provided in Section 7.2 of the Master Agreement).
"Initial Closing Date" means the Closing Date for the first Leased Property
acquired by the Lessor pursuant to the 2002 Master Agreement.
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"Joinder Agreement" means an agreement substantially in the form of Exhibit
E to the Master Agreement pursuant to which a Subsidiary of Concord shall become
a Lessee.
"Land" means the land described in the related Lease Supplement.
"Land Acquisition Costs" with respect to any Leased Property means the
Funded Amounts advanced for the purpose of acquiring the related Land, including
any earnest money deposits and all other amounts payable under the related
Purchase Agreement, together with all interest and transaction expenses
allocated to Land Acquisition Costs and capitalizable as land acquisition costs
in accordance with GAAP.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, treaties or decrees of any Governmental Authority, or of any
court or similar entity established by any thereof.
"Lease" means the Amended and Restated Master Lease Agreement, dated as of
June 26, 2003 together with each Lease Supplement thereto, among the Lessees and
the Lessor, and includes the Original Lease Agreements for the period that they
were in effect.
"Lease Balance" means, with respect to all of the Leased Properties, as of
any date of determination, an amount equal to the aggregate sum of the
outstanding Funded Amounts of all Funding Parties, all accrued and unpaid
interest on the Loans, all accrued and unpaid Yield on the Lessor's Invested
Amounts, all unpaid fees owing to the Funding Parties under the Operative
Documents, all other amounts owing to the Funding Parties by the Lessees under
the Operative Documents.
"Lease Supplement" means a supplement to the Lease substantially in the
form of Exhibit A thereto.
"Lease Term" means (a) the Base Term, as it may be renewed pursuant to
Section 14.9 of the Lease or (b) such shorter period as may result from earlier
termination of the Lease as provided therein.
"Lease Termination Date" means the last day of the Lease Term.
"Leased Property" means Land and the related Building(s), including the
related Funded Equipment. For purposes of the Lease, "Leased Property" means the
Land identified in a Lease Supplement and the Buildings and Funded Equipment
related thereto, unless the context provides otherwise. "Leased Property" shall
not include any inventory of any Lessee or any Lessee Equipment. As used in this
definition, "related" means such amounts arising with respect to such Leased
Property.
"Leased Property Balance" means, with respect to any Leased Property, as of
any date of determination, an amount equal to the aggregate sum of the
outstanding related Funded Amounts of all Funding Parties, all accrued and
unpaid interest on the related Loans, all accrued and unpaid Yield on the
related Lessor Invested Amount, all related unpaid fees owing to the Funding
Parties under the Operative Documents, and all other amounts owing to the
Funding Parties by any Lessee under the Operative Documents with respect to such
Leased Property. As
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used in this definition, "related" means such amounts arising with respect to
such Leased Property.
"Lender Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of interest accrued on the Loans pursuant to Section 2.4 of the
Loan Agreement during such Rent Period.
"Lenders" means such financial institutions as are, or who may hereafter
become, parties to the Loan Agreement as lenders to the Lessor.
"Lending Office" for each Lender means the office such Lender designates in
writing from time to time to Concord and the Agent.
"Lessee" is defined in the preamble to the Master Agreement. The "related"
Lessee with respect to any Leased Property means the Lessee that is party to the
Lease Supplement for such Leased Property.
"Lessee Equipment" means equipment and other personalty not financed or
purchased with the proceeds of Fundings.
"Lessor" is defined in the preamble to the Master Agreement.
"Lessor Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of Yield accrued and unpaid on the Lessor's Invested Amounts
pursuant to Section 2.3(a) of the Master Agreement during such Rent Period.
"Lessor Liens" means Liens on or against any Leased Property, the Lease,
any other Operative Document or any payment of Rent (a) which result from any
act or omission of, or any Claim against, the Lessor or any of its Affiliates
unrelated to the Transaction or from Lessor's failure to perform as required
under the Operative Documents or (b) which result from any Tax owed by the
Lessor or any of its Affiliates, except any Tax for which a Lessee or Concord is
obligated to indemnify (including, without limitation, in the foregoing
exception, any assessments with respect to any Leased Property noted on the
related Title Policy or assessed in connection with any construction or
development by a Lessee or the Construction Agent).
"Lessor Rate" is defined in the Lessor Yield Letter.
"Lessor Yield Letter" means the letter agreement, dated as of June 26,
2003, between Concord and the Lessor.
"Lessor's Allocated Commitment" means, at any time, the amount set forth
for the Allocated Amount on Schedule 2.2 to the Master Agreement.
"Lessor's Invested Amount" means the amounts funded by the Lessor pursuant
to Section 2 of the Master Agreement that are not proceeds of Loans by a Lender,
as such amount may be increased during the related Construction Term pursuant to
Section 2.3(c) of the Master Agreement.
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"LIBOR" means, for any Rent Period, with respect to LIBOR Advances the
offered rate for deposits in U.S. Dollars, for a period comparable to the Rent
Period and in an amount comparable to such Advances, appearing on the Telerate
Screen Page 3750 as of 11:00 A.M. (London, England time) on the day that is two
London Business Days prior to the first day of the Rent Period. If two or more
of such rates appear on the Telerate Screen Page 3750, the rate for that Rent
Period shall be the arithmetic mean of such rates. If the foregoing rate is
unavailable from the Telerate Screen for any reason, then such rate shall be
determined by the Agent from the Reuters Screen LIBO Page or, if such rate is
also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Agent to Concord and
the Funding Parties; in any such case rounded, if necessary, to the next higher
1/100 of 1.0%, if the rate is not such a multiple.
"LIBOR Advance" means that portion of the Funded Amount bearing interest at
a rate based on the Adjusted LIBO Rate.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of indebtedness, whether by
consensual agreement or by operation of statute or other law, or by any
agreement, contingent or otherwise, to provide any of the foregoing.
"Limited Event of Default" means an Event of Default under (i) paragraph
(e), (j) or (k) of Article XII of the Lease, solely if the breach of the related
covenant, representation or warranty was based on a subjective interpretation of
the term "diligently," "reasonable," "reasonably," "practical," "necessary,"
"adequate," "usually," "desirable," "reasonably likely," "material,"
"materially," "Material Adverse Effect," "materially adversely affect,"
"material adverse change," "materially and adversely affects," "material adverse
effect," "adverse," "adversely," "substantial," or "substantially", or any Event
of Default based solely on the subjective interpretation of any term (1) that
gives rise to a cross default under paragraph (e) of Article XII or (2) in any
covenant, representation or Event of Default added to the Operative Documents
pursuant to the terms of Section 5.6 of the Master Agreement; provided, however,
if the Event of Default, covenant or representation or warranty relates to the
use of the Leased Property, then such Event of Default, covenant or
representation or warranty will not be deemed a Limited Event of Default, (ii)
paragraph (f) of Article XII of the Lease solely if such breach is based on a
subjective interpretation of "Solvent" or (iii) paragraph (l) of Article XII of
the Lease unless such Change in Control is consented to by Concord.
"Limited Recourse Amount" means, as of any date of determination, an amount
equal to: the Future Value of: (i) 89.9% of the aggregate Fair Value of all of
the Leased Properties minus (ii) the present value, as of the Initial Closing
Date, of any minimum lease payments required to be made as of the Initial
Closing Date and up to the date of determination that were included in Concord's
90% test as described in paragraph 7(d) of FASB, Accounting for Leases, using a
discount rate equal to the Implicit Rate.
"Loan" shall have the meaning specified in Section 2.1 of the Loan
Agreement.
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"Loan Agreement" means the Amended and Restated Loan Agreement, dated as of
June 26, 2003, among the Lessor, the Agent and the Lenders.
"Loan Documents" means the Loan Agreement, the Notes, the Assignments of
Lease and Rents, the Mortgages and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section 5.1 of
the Loan Agreement, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, event or act has been satisfied.
"Loan Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
"Margin Regulations" means Regulations T, U and X of the Board of Governors
of the Federal Reserve System, as the same may be in effect from time to time.
"Margin Stock" means "margin stock" as defined in Regulation T, U or X.
"Master Agreement" means the Amended and Restated Master Agreement, dated
as of June 26, 2003, among the Guarantor, the Lessees, the Subsidiary
Guarantors, the Lessor, the Agent and the Lenders, and includes the Original
Agreements for the period that they were in effect.
"Material Adverse Effect" means with respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding), (i) a materially
adverse effect on the ability of Guarantor or any other Obligor to perform its
obligations under any Operative Document, (ii) a materially adverse effect on
the financial condition, operations, business, prospects or assets of Concord
and its Subsidiaries, taken as a whole, (iii) a materially adverse effect on the
value or useful life of any Leased Property, or the legality, validity or
enforceability of any of the Operative Documents or (iv) a materially adverse
effect on the status, perfection or priority of the Agent's or any Funding
Party's interest in any Leased Property.
"Material Contract" means (a) any contract or other agreement written or
oral, of Concord or any of its Subsidiaries involving monetary liability of or
to any such Person in an amount in excess of $15,000,000 per year, or (b) any
other contract or agreement, written or oral, of Concord or any of its
Subsidiaries the failure to comply with which could reasonably be expected to
have a Material Adverse Effect.
"Monthly Payment Date" means the last Business Day of each calendar month.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means, with respect to any Leased Property, that certain
mortgage, deed of trust or security deed, dated as of the related Closing Date,
by the Lessor to the Agent, in the
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form of Exhibit D attached to the Master Agreement, with such modifications as
are satisfactory to the Lessor and the Agent in conformity with Applicable Law
to assure customary remedies in favor of the Agent in the jurisdiction where the
Leased Property is located.
"Multiemployer Plan" means any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by Concord or any member of
the ERISA Group.
"Net Invested Amount" means the portion of the Lessor's Invested Amount
allocated by the Lessor to the Net Invested Amount, provided that the Net
Invested Amount shall in no event be (i) less than 5.5% of the aggregate Funded
Amounts or (ii) greater than $5,362,500.
"Net Investment Debt Amount" on any date means an amount equal to the
lesser of (i) the principal of the Indebtedness of EFS National Bank (or any
successor thereto, so long as such entity is a Subsidiary of Concord) or any
Subsidiary of EFS National Bank incurred for the purpose of investing in U.S.
treasury notes and other U.S. governmental agencies, quasi-governmental agencies
and government sponsored agencies or instrumentalities, such as obligations of
the Federal Home Loan Mortgage Corp., Federal National Mortgage Association and
the Federal Home Loan Mortgage Corporation, so long as such obligations are
backed by the full faith and credit of the U.S. government, and (ii) the fair
market value as of such date of the investments purchased or maintained with the
proceeds of such Indebtedness, provided that in no event shall the Net
Investment Debt Amount exceed the amount set forth opposite the appropriate
year:
Year Amount
--------------- --------------
2002 $ 100,000,000
2003 $ 150,000,000
2004 $ 200,000,000
2005 and each $ 250,000,000
year thereafter
"Net Selling Price" for any Leased Property means the selling price
therefor, net of all related taxes, attorneys' fees, escrow costs, recording
fees, transfer fees, title insurance costs, costs of surveys and environmental
reports, brokers' fees, advertising costs, carrying costs incurred by the Agent
or any Funding Party (including, without limitation, amounts expended by the
Agent or any Funding Party to insure, protect, maintain or operate such Leased
Property) and all other expenses and prorations associated with such sale.
"Notes" means the A Note and the B Note issued by the Lessor under the Loan
Agreement, and any and all notes issued in replacement or exchange therefor in
accordance with the provisions thereof.
"Obligations" means all indebtedness (whether principal, interest, fees or
otherwise), obligations and liabilities of the Guarantor and each Lessee to the
Funding Parties (including
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without limitation all extensions, renewals, modifications, rearrangements,
restructures, replacements and refinancings thereof, whether or not the same
involve modifications to interest rates or other payment terms of such
indebtedness, obligations and liabilities), whether arising under any of the
Operative Documents or otherwise, and whether now existing or hereafter created,
absolute or contingent, direct or indirect, joint or several, secured or
unsecured, due or not due, contractual or tortious, liquidated or unliquidated,
arising by operation of law or otherwise, or acquired by Funding Parties
outright, conditionally or as collateral security from another, including but
not limited to the obligation of the Guarantor and each Lessee to repay future
advances by the Funding Parties, whether or not made pursuant to commitment and
whether or not presently contemplated by the Guarantor or any Lessee and the
Funding Parties under the Operative Documents.
"Obligors" means the Guarantor, the Subsidiary Guarantors, the Construction
Agent and the Lessees, collectively.
"Officer's Certificate" of a Person means a certificate signed by the
Chairman of the Board or the President or any Executive Vice President or any
Senior Vice President or any other Vice President or the Treasurer or any
Assistant Treasurer or the Controller or any Assistant Controller or the
Secretary of such Person.
"Operative Documents" means the Master Agreement, the Purchase Agreements,
the Deeds, the Lease, the Security Agreement and Assignment, the Notes, the Loan
Agreement, the Guaranty Agreement, the Swap Documents, the Subsidiary Guaranty,
the Assignments of Lease and Rents, the Mortgages, the Ground Leases, the
Construction Agency Agreement, the Joinder Agreements, Lessor Yield Letter and
the other documents delivered in connection with the transactions contemplated
by the Master Agreement.
"Original 1998 Lease" means the Lease Agreement, dated as of May 22, 1998,
between Electronic Payment Services, Inc. and the Lessor.
"Original 1998 Master Agreement" is defined in the Preliminary Statements
of the Master Agreement.
"Original 2000 Lease" means the Master Lease Agreement, dated as of
November 15, 2000, among Electronic Payment Services, Inc., the other
Subsidiaries of Concord party thereto and the Lessor.
"Original 2000 Master Agreement" is defined in the Preliminary Statements
of the Master Agreement.
"Original 2002 Lease" is defined in the Preliminary Statements of the
Lease.
"Original 2002 Master Agreement" is defined in the Preliminary Statements
of the Master Agreement.
"Original Agreements" is defined in paragraph 1 of the Preliminary
Statements of the Master Agreement.
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"Original Construction Agency Agreement" means the Construction Agency
Agreement, dated as of July 12, 2002, between Concord and AFG, without giving
effect to any amendment thereto.
"Original Guaranties" is defined in the Background of the Guaranty.
"Original Lease Agreements" is defined in paragraph A of the Preliminary
Statements of the Lease.
"Original Operative Documents" means the agreements that were "Operative
Documents" under any Original Agreement, collectively.
"Overdue Rate" means the lesser of (a) the highest interest rate permitted
by Applicable Law and (b) an interest rate per annum (calculated on the basis of
a 365-day (or 366-day, if appropriate) year equal to (i) in the case of each
LIBOR Advance, 2.0% in excess of the rate then applicable to such LIBOR Advance
until the end of the applicable Rent Period and thereafter 2.0% above the Base
Rate in effect from time to time, (ii) in the case of Base Rate Advances, 2%
above the Base Rate in effect from time to time and (iii) in the case of Yield,
2% above the Lessor Rate.
"Payment Date" means the last day of each Rent Period (and if such Rent
Period is longer than three months, the day that is 90 days after the first day
of such Rent Period) or, if such day is not a Business Day, the next Business
Day.
"Payment Date Notice" is defined in Section 2.3(d) of the Master Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, and any successor
thereto.
"Permitted Investments" means: (a) direct obligations of the United States
of America, or of any agency thereof, or obligations guaranteed as to principal
and interest by the United States of America, or of any agency thereof, in
either case maturing not more than 90 days from the date of acquisition thereof;
(b) certificates of deposit issued by any Lender or by any bank or trust company
organized under the laws of the United States of America or any state thereof
and having capital, surplus and undivided profits of at least $500,000,000,
maturing not more than 90 days from the date of acquisition thereof; (c)
commercial paper rated A-1 or better or P-1 by Standard & Poor's Corporation or
Moody's Investors Services, Inc., respectively, maturing not more than six
months from the date of acquisition thereof; (d) commercial paper of any Lender
(or any Affiliate thereof located in the United States of America) that is rated
A-1 or better or P-1 by Standard and Poor's Corporation or Moody's Investors
Services, Inc., respectively, maturing not more than six months from the date of
acquisition thereof; (e) repurchase agreements entered into with any Lender or
with any bank or trust company satisfying the conditions of clause (b) hereof
that is secured by any obligation of the type described in clauses (a) through
(d) of this definition; and (f) money market funds acceptable to the Required
Lenders.
"Permitted Lease Balance" with respect to any Leased Property means (i) the
Leased Property Balance therefor, minus (ii) the Force Majeure Losses, if any,
related to such Leased Property.
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"Permitted Liens" means the following with respect to any Leased Property:
(a) the respective rights and interest of the related Lessee, the Lessor, the
Agent and any Lender, as provided in the Operative Documents, (b) Liens for
Taxes either not yet due or being contested in good faith and by appropriate
proceedings, so long as enforcement thereof is stayed pending such proceedings,
(c) materialmen's, mechanics', workers', repairmen's, employees' or other like
Liens arising after the related Closing Date in the ordinary course of business
for amounts either not yet due or being contested in good faith and by
appropriate proceedings, so long as enforcement thereof is stayed pending such
proceedings or such Liens are bonded over, (d) Liens arising after such Closing
Date out of judgments or awards with respect to which at the time an appeal or
proceeding for review is being prosecuted in good faith, so long as the
enforcement thereof has been stayed pending such appeal or review, (e)
easements, rights of way, reservations, servitudes and rights of others against
the Land which do not materially and adversely affect the value or the utility
of such Leased Property, (f) other Liens incidental to the conduct of the
related Lessee's business which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and which do not in
the aggregate materially detract from the value of such Leased Property or
materially impair the use thereof, (g) assignments and subleases expressly
permitted by the Operative Documents, (h) Liens in favor of municipalities
agreed to by the related Lessee that do not affect the value or utility of the
related Leased Property and (i) Liens created by the IDB Documentation.
"Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, nonincorporated
organization or government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (a) is
maintained by any member of the ERISA Group or (b) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group.
"Plans and Specifications" means with respect to any Building the final
plans and specifications for such Building prepared by the Architect, and, if
applicable, referred to by the Appraiser in the Appraisal, as such Plans and
Specifications may be hereafter amended, supplemented or otherwise modified from
time to time.
"Potential Event of Default" means any event, condition or failure which,
with notice or lapse of time or both, would become an Event of Default.
"Pro Rata Share" means, with respect to any Funding Party the ratio
(expressed as a percentage) of (i) such Funding Party's Commitment (or, in the
case of the Lessor, the Lessor's Allocated Commitment) divided by (ii) the sum
of all of the Lenders' Commitments and the Lessor's Allocated Commitment.
"Purchase Agreement" means with respect to any Land, the purchase agreement
with the Seller for the conveyance of such Land to the Lessor.
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"Purchase Option" is defined in Section 14.1 of the Lease.
"Quarterly Payment Date" means the last Business Day of each March, June,
September and December of each year.
"Recourse Deficiency Amount" means for any Leased Property, an amount equal
to (i) the A Percentage times (ii) the Fair Value of such Leased Property.
"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means, with respect to any Leased Property, the earlier of
(i) the date that the Lease Balance has been paid in full, and (ii) the date on
which the Agent gives notice to the Lessor that the Lenders release any and all
interest they may have in such Leased Property, and all proceeds thereof, and
any rights to direct, consent or deny consent to any action by the Lessor with
respect to such Leased Property.
"Remarketing Option" is defined in Section 14.6 of the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Period" means (i) in the case of Base Rate Advances, means the period
from, and including, a Quarterly Payment Date to, but excluding, the next
succeeding Quarterly Payment Date; and (ii) with respect to any LIBOR Advance:
(1) initially, the period commencing on the borrowing or conversion date,
as the case may be, with respect to such LIBOR Advance and ending one,
two, three or six months thereafter, as selected by Concord in its
Funding Notice or Payment Date Notice, as the case may be, given with
respect thereto; and
(2) thereafter, each period commencing on the last day of the next
preceding Rent Period applicable to such LIBOR Advance and ending one,
two, three or six months thereafter, as selected by Concord by
irrevocable notice to the Agent in its related Payment Date Notice;
provided, however that:
(a) The initial Rent Period for any Funding shall commence on
the Funding Date of such Funding and each Rent Period occurring
thereafter in respect of such Funding shall commence on the day on
which the next preceding Rent Period expires;
(b) If any Rent Period would otherwise expire on a day which is
not a Business Day, such Rent Period shall expire on the next
succeeding Business Day, provided that if any Rent Period in respect
of LIBOR Advances would otherwise expire on a day that is not a
Business Day but is a day of the month
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after which no further Business Day occurs in such month, such Rent
Period shall expire on the next preceding Business Day;
(c) Any Rent Period in respect of LIBOR Advances which begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Rent Period shall, subject to
paragraph (d) below, expire on the last Business Day of such calendar
month;
(d) No Rent Period shall extend beyond the Lease Termination
Date; and
(e) At any one time, there shall be no more than seven (7) Rent
Periods.
"Rents" means all consideration paid in the ordinary course of business by
Concord and its Subsidiaries to any Person for the use or occupation of property
under any operating lease to which Concord or any of its Subsidiaries is the
lessee or obligor, determined in accordance with GAAP.
"Report" is defined in Section 7.6 of the Master Agreement.
"Required Funding Parties" means, at any time, Funding Parties holding an
aggregate outstanding principal amount of Funded Amounts equal to at least 66
2/3% of the aggregate outstanding principal amount of all Funded Amounts,
provided that if one Funding Party holds more than 66 2/3% of the aggregate
outstanding principal amount of all Funded Amounts but there is more than one
Funding Party, then Required Lenders shall mean at least two Funding Parties.
"Required Lenders" means, at any time, Lenders holding an aggregate
outstanding principal amount of Loans equal to at least 66 2/3% of the aggregate
outstanding principal amount of all Loans, provided, that if one Lender holds
more than 66 2/3% of the aggregate outstanding principal amount of the Loans but
there is more than one Lender, then Required Lenders shall mean two Lenders.
"Requirements of Law" for any Person means the articles or certificate of
incorporation and bylaws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Reuters Screen" means, when used in connection with any designated page
and LIBOR, the display page so designated on the Reuters Monitor Money Rates
Service (or such other page as may replace that page on that service for the
purpose of displaying rates comparable to LIBOR).
"Scheduled Construction Termination Date" means with respect to any
Building the earlier of (A) two (2) years after the Closing Date for the related
Land and (B) the Funding Termination Date.
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"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Agreement and Assignment" means, with respect to any Leased
Property, the Security Agreement and Assignment (Construction Contract,
Architect's Agreement, Engineer's Agreement, Permits, Licenses and Governmental
Approvals, and Plans, Specifications and Drawings) from the Construction Agent
to the Lessor, substantially in the form of Exhibit C to the Master Agreement.
"Significant Subsidiary" means, at the date of determination, any
Subsidiary (i) whose consolidated total assets equals or exceeds five percent
(5%) of the consolidated total assets of the Guarantor, or (ii) whose
consolidated net income for the most recently completed four quarters equals or
exceeds five percent (5%) of the Guarantor's consolidated net income for such
period, provided that "Significant Subsidiary" shall not include any Subsidiary
of Concord that is a national bank or a federal savings bank, or any subsidiary
of such national bank or federal savings bank. The Significant Subsidiaries as
of the Initial Closing Date are listed on Schedule 1 to the Master Agreement.
"Solvent" means, with respect to any Person as of any date, that on such
date (i) the fair value of the property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities, of
such Person, (ii) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become matured, (iii) such Person is able to
realize upon its assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of
business, (iv) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (v) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged. In computing the amount of contingent liabilities at
anytime, it is intended that such liabilities will be computed at the amount
which, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"Star" means Star Systems, LLC, a Delaware limited liability company.
"STI" is defined in Section 4.3(k) of the Master Agreement.
"Subsidiary" means any corporation, association, partnership, trust,
limited liability company or other business entity of which the designated
parent shall at any time own directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes or controlling interests)
of the outstanding Voting Interests.
"Subsidiary Guarantors" means each Significant Subsidiary.
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"Subsidiary Guaranty" means the Amended and Restated Subsidiary Guaranty
Agreement, dated as of June 26, 2003, issued by the Subsidiary Guarantors.
"Supplemental Rent" means any and all amounts, liabilities and obligations
other than Basic Rent which any Lessee assumes or agrees or is otherwise
obligated to pay under the Lease or any other Operative Document (whether or not
designated as Supplemental Rent) to the Lessor, the Agent, any Lender or any
other party, including, without limitation, amounts under Article XVI of the
Lease, and indemnities and damages for breach of any covenants, representations,
warranties or agreements, and all overdue or late payment charges in respect of
any Funded Amount.
"Swap Documents" means the ISDA Master Agreement, dated as of April 3,
1998, between SunTrust Bank and EPS, together with all schedules and
confirmations related thereto (including the amended confirmation dated July 13,
2000).
"Tax Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Tax Indemnitee" means, with respect to each Leased Property, (i) so long
as such Leased Property is a Construction Land Interest, the Lessor and its
Affiliates, successors, permitted assigns, permitted transferees, employees,
officers, directors and agents and (ii) from and after the Completion Date for
such Leased Property, the Lessor, SunTrust Bank, in its individual capacity and
in its capacity as Agent, each Lender and their respective Affiliates,
successors, permitted assigns, permitted transferees, employees, officers,
directors and agents; provided, however, that in no event shall any Lessee be a
Tax Indemnitee.
"Taxes" means any present or future taxes, levies, imposts, duties, fees,
assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" means, when used in connection with any designated page and
LIBOR, the display page so designated on the Dow Jones Telerate Service (or such
other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Ten Percent Subsidiary" means each of (i) EPS, (ii) Star and (iii) any
other Subsidiary of Concord that is not a Subsidiary of either Star or EPS and
(A) whose consolidated total assets equals or exceeds ten percent (10%) of the
consolidated total assets of the Guarantor, or (B) whose consolidated net income
for the most recently completed four quarters equals or exceeds ten percent
(10%) of the Guarantor's consolidated net income for such period, provided that
"Ten Percent Subsidiary" shall not include any Subsidiary of Concord that is a
national bank or federal savings bank, or any subsidiary of such national bank
or federal savings bank.
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"Title Insurance Company" means the company that has or will issue the
title policies with respect to a Leased Property, which company shall be
reasonably acceptable to the Funding Parties.
"Title Policy" is defined in Section 3.1 of the Master Agreement.
"Transaction" means all the transactions and activities referred to in or
contemplated by the Operative Documents.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from time
to time.
"Voting Interests" means stock or similar ownership interests, of any class
or classes (however designated), the holders of which are at the time entitled,
as such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage,
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
"Withholding Taxes" is defined in Section 7.5(f) of the Master Agreement.
"Yield" is defined in Lessor Yield Letter.
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