Exhibit 10.5
AMENDED AND RESTATED MASTER LEASE AGREEMENT
Dated as of June 26, 2003
between
SUNTRUST EQUITY FUNDING, LLC, as Lessor,
and
CONCORD EFS, INC., CONCORD CORPORATE SERVICES, INC. AND CERTAIN OTHER
SUBSIDIARIES OF CONCORD EFS, INC., as Lessees
---------------------------
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.....................................................1
ARTICLE II. LEASE OF LEASED PROPERTY........................................2
Section 2.1 Acceptance and Lease of Property............................2
Section 2.2 Acceptance Procedure........................................2
ARTICLE III. RENT............................................................2
Section 3.1 Basic Rent..................................................2
Section 3.2 Supplemental Rent...........................................3
Section 3.3 Method of Payment...........................................3
Section 3.4 Late Payment................................................3
Section 3.5 Net Lease; No Setoff, Etc...................................3
Section 3.6 Certain Taxes...............................................4
Section 3.7 Utility Charges.............................................5
ARTICLE IV. WAIVERS.........................................................5
ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES...........................6
ARTICLE VI. MAINTENANCE AND REPAIR; ALTERATIONS,
MODIFICATIONS AND ADDITIONS.....................................7
Section 6.1 Maintenance and Repair; Compliance With Law.................7
Section 6.2 Alterations.................................................8
Section 6.3 Title to Alterations........................................8
ARTICLE VII. USE.............................................................8
ARTICLE VIII. INSURANCE.......................................................8
ARTICLE IX. ASSIGNMENT AND SUBLEASING......................................10
ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE......................10
Section 10.1 Event of Loss..............................................10
Section 10.2 Event of Taking............................................11
Section 10.3 Casualty...................................................12
Section 10.4 Condemnation...............................................12
Section 10.5 Verification of Restoration and Rebuilding.................12
Section 10.6 Application of Payments....................................12
Section 10.7 Prosecution of Awards......................................13
Section 10.8 Application of Certain Payments Not
Relating to an Event of Taking.............................14
Section 10.9 Other Dispositions.........................................14
-i-
TABLE OF CONTENTS
(continued)
Page
Section 10.10 No Rent Abatement..........................................14
Section 10.11 Event During Construction Period...........................14
ARTICLE XI. INTEREST CONVEYED TO LESSEES...................................14
ARTICLE XII. EVENTS OF DEFAULT..............................................15
ARTICLE XIII. ENFORCEMENT....................................................17
Section 13.1 Remedies...................................................17
Section 13.2 Remedies Cumulative; No Waiver; Consents...................19
Section 13.3 Purchase Upon an Event of Default..........................20
Section 13.4 Limitation on Liability....................................20
ARTICLE XIV. SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL...........20
Section 14.1 Lessee's Option to Purchase................................20
Section 14.2 Conveyance to Lessee.......................................21
Section 14.3 Acceleration of Purchase Obligation........................21
Section 14.4 Determination of Purchase Price............................21
Section 14.5 Purchase Procedure.........................................22
Section 14.6 Option to Remarket.........................................23
Section 14.7 Rejection of Sale..........................................25
Section 14.8 Return of Leased Property..................................25
Section 14.9 Renewal....................................................25
ARTICLE XV. LESSEE'S EQUIPMENT.............................................26
ARTICLE XVI. RIGHT TO PERFORM FOR LESSEE....................................26
ARTICLE XVII. MISCELLANEOUS..................................................27
Section 17.1 Reports....................................................27
Section 17.2 Binding Effect; Successors and Assigns; Survival...........27
Section 17.3 Quiet Enjoyment............................................27
Section 17.4 Notices....................................................27
Section 17.5 Severability...............................................28
Section 17.6 Amendment; Complete Agreements.............................28
Section 17.7 Construction...............................................29
Section 17.8 Headings...................................................29
Section 17.9 Counterparts...............................................29
Section 17.10 GOVERNING LAW..............................................29
Section 17.11 Discharge of Lessee's Obligations by its
Subsidiaries or Affiliates.................................29
Section 17.12 Liability of Lessor Limited................................29
-ii-
TABLE OF CONTENTS
(continued)
Page
Section 17.13 Estoppel Certificates......................................30
Section 17.14 No Joint Venture...........................................30
Section 17.15 No Accord and Satisfaction.................................30
Section 17.16 No Merger..................................................30
Section 17.17 Survival...................................................30
Section 17.18 Chattel Paper..............................................31
Section 17.19 Time of Essence............................................31
Section 17.20 Recordation of Lease.......................................31
Section 17.21 Investment of Security Funds...............................31
Section 17.22 Ground Leases..............................................31
Section 17.23 Land and Building..........................................32
Section 17.24 Joint and Several..........................................32
Section 17.25 Construction Land Interests................................32
Section 17.26 IDB Documentation..........................................32
APPENDICES AND EXHIBITS
- -----------------------
APPENDIX A Defined Terms
EXHIBIT A Lease Supplement
-iii-
THIS AMENDED AND RESTATED MASTER LEASE AGREEMENT (as from time to time
further amended or supplemented, this "Lease"), dated as of June 26, 2003 and
effective as of the Effective Date, is among SUNTRUST EQUITY FUNDING, LLC, a
Delaware limited liability company (together with its successors and assigns
hereunder, the "Lessor"), as Lessor, CONCORD EFS, INC., a Delaware corporation
("Concord"), CONCORD CORPORATE SERVICES, INC. (formerly known as Electronic
Payment Services, Inc.), a Delaware corporation ("CCS") and certain other
Subsidiaries (as defined below) of Concord hereafter parties hereto (each
individually, with its successors and permitted assigns hereunder, a "Lessee"
and collectively, the "Lessees"), as Lessees.
PRELIMINARY STATEMENT
A. Atlantic Financial Group, Ltd. ("AFG") and Concord were parties to that
certain Master Lease Agreement, dated as of July 12, 2002 (as supplemented, the
"Original 2002 Lease"). CCS and AFG were parties to that certain Lease
Agreement, dated as of May 22, 1998 (as heretofore supplemented and amended, the
"Original 1998 Lease"). CCS, the other Subsidiaries of Concord party thereto and
AFG were parties to that certain Master Lease Agreement, dated as of November
15, 2000 (as heretofore supplemented and amended, the "Original 2000 Lease", and
together with the Original 1998 Lease Agreement and the Original 2002 Lease,
collectively, the "Original Lease Agreements"). AFG transferred its interests in
the Leased Properties subject to the Original Lease Agreements to the AFG
Transferee. The AFG Transferee has merged with the Lessor, with the Lessor as
the survivor. In connection therewith, the Lessor and the Lessees desire to
amend and restate the Original Lease Agreements in their entirety pursuant to
this Lease.
B. Lessor will purchase fee title to, or acquire a leasehold interest in,
from one or more third parties designated by the Construction Agent, on a
Closing Date, certain parcels of real property to be specified by the
Construction Agent, together with any improvements thereon.
C. Lessor desires to lease to each Lessee, and each Lessee desires to
lease from Lessor, certain of such properties as described on the Lease
Supplement(s) to which such Lessee is a party.
D. If applicable, the Construction Agent will construct, or cause to be
constructed, certain improvements on such parcels of real property which as
constructed will be the property of Lessor and will become part of such property
subject to the terms of this Lease.
In consideration of the mutual agreements herein contained and other good
and valuable consideration, receipt of which is hereby acknowledged, Lessor and
Lessees hereby agree as follows:
ARTICLE I.
DEFINITIONS
-----------
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A hereto for all purposes hereof.
ARTICLE II.
LEASE OF LEASED PROPERTY
------------------------
Section 2.1 Acceptance and Lease of Property. On each Closing Date for
Land, Lessor, subject to the satisfaction or waiver of the conditions set forth
in Section 3 of the Master Agreement, hereby agrees to accept delivery on such
Closing Date of such Land pursuant to the terms of the Master Agreement,
together with any Building or other improvements thereon, and simultaneously to
lease to the related Lessee hereunder for the Lease Term, Lessor's interest in
such Land and in such Building or other improvements, together with any Building
which thereafter may be constructed thereon pursuant to the Construction Agency
Agreement, and such related Lessee hereby agrees, expressly for the direct
benefit of Lessor, commencing on such Closing Date for the Lease Term, to lease
from Lessor Lessor's interest in such Land to be delivered on such Closing Date,
together with, in the case of Land, Lessor's interest in any Building and other
improvements thereon or which thereafter may be constructed thereon pursuant to
the Construction Agency Agreement.
Section 2.2 Acceptance Procedure. Lessor hereby authorizes one or more
employees of the related Lessee, to be designated by such Lessee, as the
authorized representative or representatives of Lessor to accept delivery on
behalf of Lessor of that Leased Property identified on the applicable Funding
Request. Each Lessee hereby agrees that such acceptance of delivery by such
authorized representative or representatives and the execution and delivery by
such Lessee on each Closing Date for property to be leased hereunder of a Lease
Supplement in substantially the form of Exhibit A hereto (appropriately
completed) shall, without further act, constitute the irrevocable acceptance by
such Lessee of that Leased Property which is the subject thereof for all
purposes of this Lease and the other Operative Documents on the terms set forth
therein and herein, and that such Leased Property, together with, in the case of
Land, any Building or other improvements thereon or to be constructed thereon
pursuant to the Construction Agency Agreement, shall be deemed to be included in
the leasehold estate of this Lease and shall be subject to the terms and
conditions of this Lease as of such Closing Date. The demise and lease of each
Building pursuant to this Section 2.2 shall include any additional right, title
or interest in such Building which may at any time be acquired by Lessor, the
intent being that all right, title and interest of Lessor in and to such
Building shall at all times be demised and leased to the related Lessee
hereunder.
ARTICLE III.
RENT
----
Section 3.1 Basic Rent. Beginning with and including the first Payment
Date occurring after the Initial Closing Date, each Lessee shall pay to Lessor
(and Lessor hereby irrevocably directs each Lessee to pay to the Agent, as
assignee of Lessor) the Basic Rent for the Leased Properties subject to a Lease
Supplement to which such Lessee is a party, in installments, payable in arrears
on each Payment Date during the Lease Term, except that during the Construction
Period for a Leased Property, no Basic Rent shall be payable by the related
Lessee to the extent the Funded Amounts are increased with respect to such
Leased Property under Section 2.3(c) of the Master Agreement.
2
Section 3.2 Supplemental Rent. Each Lessee shall pay to the Agent, or to
whomever shall be entitled thereto as expressly provided herein or in any other
Operative Document, any and all Supplemental Rent within five (5) Business Days
of the date the same shall become due and payable and in the event of any
failure on the part of such Lessee to pay any Supplemental Rent, the Agent (as
assignee of Lessor) shall have all rights, powers and remedies provided for
herein or by law or in equity or otherwise in the case of nonpayment of Basic
Rent. All Supplemental Rent to be paid pursuant to this Section 3.2 shall be
payable in the type of funds and in the manner set forth in Section 3.3.
Section 3.3 Method of Payment. Basic Rent shall be paid to the Agent, and
Supplemental Rent (including amounts due under Article XIV hereof) shall be paid
to the Agent (or to such Person as may be entitled thereto) or, in each case, to
such Person as the Agent (or such other Person) shall specify in writing to the
related Lessee, and at such place as the Agent (or such other Person) shall
specify in writing to the related Lessee, which specifications by the Agent
shall be given by the Agent at least five (5) Business Days prior to the due
date therefor. Each payment of Rent (including payments under Article XIV
hereof) shall be made by the Lessees prior to 12:00 p.m. (noon) Atlanta, Georgia
time at the place of payment in funds consisting of lawful currency of the
United States of America which shall be immediately available on the scheduled
date when such payment shall be due, unless such scheduled date shall not be a
Business Day, in which case such payment shall be made on the next succeeding
Business Day. The Agent agrees, at a Lessee's request, to arrange for automated
clearing house debits from such Lessee's accounts for payments due hereunder.
Section 3.4 Late Payment. If any Basic Rent shall not be paid on the date
when due, the related Lessee shall pay to the Agent, as Supplemental Rent,
interest (to the maximum extent permitted by law) on such overdue amount from
and including the due date thereof to but excluding the Business Day of payment
thereof at the Overdue Rate.
Section 3.5 Net Lease; No Setoff, Etc. This Lease is a net lease and
notwithstanding any other provision of this Lease, each Lessee shall pay all
Basic Rent and Supplemental Rent, and all costs, charges, assessments and other
expenses foreseen or unforeseen, for which such Lessee or any Indemnitee is or
shall become liable by reason of such Lessee's or such Indemnitee's estate,
right, title or interest in the Leased Properties, or that are connected with or
arise out of the acquisition (except the initial costs of purchase by Lessor of
its interest in any Leased Property, which costs, subject to the terms of the
Master Agreement, shall be funded by the Funding Parties pursuant to the Master
Agreement), construction (except Construction Costs, which costs, subject to the
terms of the Master Agreement, shall be funded by the Funding Parties pursuant
to the Master Agreement), installation, possession, use, occupancy, maintenance,
ownership, leasing, repairs and rebuilding of, or addition to, the Leased
Properties or any portion thereof, and any other amounts payable hereunder and
under the other Operative Documents without counterclaim, setoff, deduction or
defense and without abatement, suspension, deferment, diminution or reduction,
and each Lessee's obligation to pay all such amounts throughout the Lease Term,
including the Construction Term, is absolute and unconditional. The obligations
and liabilities of each Lessee hereunder shall in no way be released, discharged
or otherwise affected for any reason, including without limitation: (a) any
defect in the condition, merchantability, design, quality or fitness for use of
any Leased Property or any part thereof, or the failure of any Leased Property
to comply with all Applicable Law,
3
including any inability to occupy or use any Leased Property by reason of such
non-compliance; (b) any damage to, removal, abandonment, salvage, loss,
contamination of or Release from, scrapping or destruction of or any requisition
or taking of any Leased Property or any part thereof; (c) any restriction,
prevention or curtailment of or interference with any use of any Leased Property
or any part thereof including eviction; (d) any defect in title to or rights to
any Leased Property or any Lien on such title or rights or on any Leased
Property; (e) any change, waiver, extension, indulgence or other action or
omission or breach in respect of any obligation or liability of or by Lessor,
the Agent or any Lender; (f) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceedings
relating to any Lessee, Lessor, any Lender, the Agent or any other Person, or
any action taken with respect to this Lease by any trustee or receiver of any
Lessee, Lessor, any Lender, the Agent, any Ground Lessor or any other Person, or
by any court, in any such proceeding; (g) any claim that any Lessee has or might
have against any Person, including without limitation, Lessor, any vendor,
manufacturer, contractor of or for any Leased Property or any part thereof, the
Agent, any Ground Lessor, any Governmental Authority, or any Lender; (h) any
failure on the part of Lessor to perform or comply with any of the terms of this
Lease, any other Operative Document or of any other agreement; (i) any
invalidity or unenforceability or illegality or disaffirmance of this Lease
against or by any Lessee or any provision hereof or any of the other Operative
Documents or any provision of any thereof whether or not related to the
Transaction; (j) the impossibility or illegality of performance by any Lessee,
Lessor or both; (k) any action by any court, administrative agency or other
Governmental Authority; (l) any restriction, prevention or curtailment of or
interference with the Construction or any use of any Leased Property or any part
thereof; or (m) any other occurrence whatsoever, whether similar or dissimilar
to the foregoing, whether or not any Lessee shall have notice or knowledge of
any of the foregoing. Except as specifically set forth in Article XIV or X of
this Lease, this Lease shall be noncancellable by each Lessee in any
circumstance whatsoever and each Lessee, to the extent permitted by Applicable
Law, waives all rights now or hereafter conferred by statute or otherwise to
quit, terminate or surrender this Lease, or to any diminution, abatement or
reduction of Rent payable by such Lessee hereunder. Each payment of Rent made by
a Lessee hereunder shall be final and such Lessee shall not seek or have any
right to recover all or any part of such payment from Lessor, the Agent, any
Lender or any party to any agreements related thereto for any reason whatsoever.
Each Lessee assumes the sole responsibility for the condition, use, operation,
maintenance, and management of the Leased Properties leased by it and Lessor
shall have no responsibility in respect thereof and shall have no liability for
damage to the property of either any Lessee or any subtenant of any Lessee on
any account or for any reason whatsoever, other than solely by reason of
Lessor's or its agent's (other than a Lessee or the Construction Agent) or
employee's willful misconduct or gross negligence.
Section 3.6 Certain Taxes. Without limiting the generality of Section
3.5, each Lessee agrees to pay when due all real estate taxes, personal property
taxes, gross sales taxes, including any sales or lease tax imposed upon the
rental payments hereunder or under a sublease, occupational license taxes, water
charges, sewer charges, assessments of any nature and all other governmental
impositions and charges of every kind and nature whatsoever (the "tax(es)"),
when the same shall be due and payable without penalty or interest; provided,
however, that this Section shall not apply to any of the taxes covered by the
exclusion described in Section 7.4(b) of the Master Agreement. It is the
intention of the parties hereto that, insofar as the same may lawfully be done,
Lessor shall be, except as specifically provided for herein, free from all
4
expenses in any way related to the Leased Properties and the use and occupancy
thereof. Any tax relating to a fiscal period of any taxing authority falling
partially within and partially outside the Lease Term, shall be apportioned and
adjusted between Lessor and the related Lessee. Each Lessee covenants to furnish
Lessor and the Agent, upon the Agent's written request, within forty-five (45)
days after the last date when any tax must be paid by such Lessee as provided in
this Section 3.6, official receipts, to the extent available, of the appropriate
taxing, authority or other proof satisfactory to Lessor, evidencing the payment
thereof.
So long as no Event of Default has occurred and is continuing, the related
Lessee may defer payment of a tax so long as the validity or the amount thereof
is contested by such Lessee with diligence and in good faith; provided, however,
that such Lessee shall pay the tax in sufficient time to prevent delivery of a
tax deed. Such contest shall be at the related Lessee's sole cost and expense.
Each Lessee covenants to indemnify and save harmless Lessor, which
indemnification shall survive the termination of this Lease, the Agent and each
Lender from any actual and reasonable costs or expenses incurred by Lessor, the
Agent or any Lender as a result of such contest; provided that neither the Agent
nor any Lender shall be entitled to claim any indemnity against any Lessee
pursuant to this sentence with respect to any Construction Land Interest during
the Construction Term therefor.
Section 3.7 Utility Charges. Each Lessee agrees to pay or cause to be
paid as and when the same are due and payable all charges for gas, water, sewer,
electricity, lights, heat, power, telephone or other communication service and
all other utility services used, rendered or supplied to, upon or in connection
with the Leased Properties leased by it.
ARTICLE IV.
WAIVERS
-------
During the Lease Term, Lessor's interest in the Leased Properties,
including the Funded Equipment, the Building(s) (whether or not completed) and
the Land, is demised and let by Lessor "AS IS" subject to (a) the rights of any
parties in possession thereof, (b) the state of the title thereto existing at
the time Lessor acquired its interest in the Leased Properties, (c) any state of
facts which an accurate survey or physical inspection might show (including the
survey delivered on the related Closing Date), (d) all Applicable Law, and (e)
any violations of Applicable Law which may exist upon or subsequent to the
commencement of the Lease Term. EACH LESSEE ACKNOWLEDGES THAT, ALTHOUGH LESSOR
WILL OWN AND HOLD TITLE TO THE LEASED PROPERTIES, LESSOR IS NOT A MANUFACTURER
OF, OR DEALER IN ANY LEASED PROPERTY, AND IS NOT RESPONSIBLE FOR THE DESIGN,
DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE BUILDING(S) OR ANY ALTERATIONS.
NEITHER LESSOR, THE AGENT NOR ANY LENDER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO
HAVE ANY LIABILITY WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE,
HABITABILITY, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED
PROPERTIES (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTIES (OR ANY
PART THEREOF), ALL SUCH WARRANTIES BEING HEREBY DISCLAIMED, AND NEITHER LESSOR,
THE AGENT NOR ANY LENDER
5
SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE
OF ANY LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW,
except that Lessor hereby represents and warrants that each Leased Property is
and shall be free of Lessor Liens. As between Lessor and the Lessees, each
related Lessee has been afforded full opportunity to inspect each Leased
Property, is satisfied with the results of its inspections of such Leased
Property and is entering into this Lease solely on the basis of the results of
its own inspections and all risks incident to the matters discussed in the two
preceding sentences, as between Lessor, the Agent or the Lenders on the one
hand, and the Lessees, on the other, are to be borne by the Lessees. The
provisions of this Article IV have been negotiated, and, except to the extent
otherwise expressly stated, the foregoing provisions are intended to be a
complete exclusion and negation of any representations or warranties by Lessor,
the Agent or the Lenders, express or implied, with respect to the Leased
Properties, that may arise pursuant to any law now or hereafter in effect, or
otherwise.
ARTICLE V.
LIENS; EASEMENTS; PARTIAL CONVEYANCES
-------------------------------------
No Lessee shall directly or indirectly create, incur, suffer to exist or
assume, and shall promptly discharge, any Lien on or with respect to any Leased
Property, the 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 a Lessee, or any of its contractors or agents or
Alterations constructed by a Lessee, except, in all cases, Permitted Liens.
Notwithstanding the foregoing paragraph, at the request of a Lessee, Lessor
shall, from time to time during the Lease Term and upon reasonable advance
written notice from such Lessee, and receipt of the materials specified in the
next succeeding sentence, consent to and join in any (i) grant of easements,
licenses, rights of way and other rights in the nature of easements, including,
without limitation, utility easements to facilitate Lessees' use, development
and construction of the Leased Properties, (ii) release or termination of
easements, licenses, rights of way or other rights in the nature of easements
which are for the benefit of the Land or the Building(s) or any portion thereof,
(iii) dedication or transfer of portions of the Land, not improved with a
Building, for road, highway or other public purposes, (iv) execution of
agreements for ingress and egress and amendments to any covenants and
restrictions affecting the Land or the Building(s) or any portion thereof and
(v) request to any Governmental Authority for platting or subdivision or
replatting or resubdivision approval with respect to the Land or any portion
thereof or any parcel of land of which the Land or any portion thereof forms a
part or a request for rezoning or any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall be
subject to the requirements that:
(a) any such action shall be at the sole cost and expense of the
requesting Lessee and such Lessee shall pay all actual and reasonable
out-of-pocket costs of Lessor, the Agent and any Lender in connection therewith
(including, without limitation, the reasonable fees of attorneys, architects,
engineers, planners, appraisers and other professionals reasonably retained by
Lessor, the Agent or any Lender in connection with any such action),
6
(b) the requesting Lessee shall have delivered to Lessor and Agent a
certificate of an Executive Officer of such Lessee stating that
(i) such action will not cause any Leased Property, the Land or
any Building or any portion thereof to fail to comply in any material
respect with the provisions of this Lease or any other Operative Documents,
or in any material respect with Applicable Law; and
(ii) such action will not materially reduce the Fair Market Sales
Value, utility or useful life of any Leased Property, the Land or any
Building nor Lessor's interest therein; and
(c) in the case of any release or conveyance, if Lessor, the Agent or
any Lender so reasonably requests, the requesting Lessee will cause to be issued
and delivered to Lessor and the Agent by the Title Insurance Company an
endorsement to the Title Policy pursuant to which the Title Insurance Company
agrees that its liability for the payment of any loss or damage under the terms
and provisions of the Title Policy will not be affected by reason of the fact
that a portion of the real property referred to in Schedule A of the Title
Policy has been released or conveyed by Lessor. Lessor shall provide written
acknowledgments or lien subordination and waiver agreements from time to time,
at a Lessee's reasonable request and expense, to other financiers of such Lessee
with respect to Lessee Equipment, confirming that this Lease does not cover such
Lessee Equipment.
ARTICLE VI.
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
----------------------------------------
Section 6.1 Maintenance and Repair; Compliance With Law. Each Lessee, at
its own expense, shall at all times (a) maintain each Leased Property leased by
it in good repair and condition (subject to ordinary wear and tear), in
accordance with prudent industry standards for similar types of property located
in the geographical area where such Leased Property is located and, in any
event, in no less a manner as other similar property owned or leased by such
Lessee or its Affiliates, (b) make all Alterations in accordance with, and
maintain (whether or not such maintenance requires structural modifications or
Alterations) and operate and otherwise keep each Leased Property in compliance
in all material respects with, all Applicable Laws and insurance requirements,
and (c) make all material repairs, replacements and renewals of each Leased
Property or any part thereof which may be required to keep such Leased Property
in the condition required by the preceding clauses (a) and (b). Each Lessee
shall perform the foregoing maintenance obligations regardless of whether any
Leased Property is occupied or unoccupied. Each Lessee waives any right that it
may now have or hereafter acquire to (i) require Lessor, the Agent or any Lender
to maintain, repair, replace, alter, remove or rebuild all or any part of any
Leased Property or (ii) make repairs at the expense of Lessor, the Agent or any
Lender pursuant to any Applicable Law or other agreements or otherwise. NEITHER
THE AGENT NOR ANY FUNDING PARTY SHALL BE PERSONALLY LIABLE TO ANY LESSEE OR TO
ANY CONTRACTORS, SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR
SERVICES PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED
PROPERTY OR ANY PART THEREOF. Neither the
7
Agent nor any Funding Party shall be required to maintain, alter, repair,
rebuild or replace any Leased Property in any way.
Section 6.2 Alterations. Each Lessee may, at such Lessee's own cost and
expense, make Alterations which do not materially diminish the Fair Market Value
of any Leased Property, provided that, if the Alterations are reasonably
expected to cost in excess of $2,000,000, the Lessor shall have consented to
such Alterations, which consent shall not be unreasonably withheld, conditioned
or delayed.
Section 6.3 Title to Alterations. Title to all non-severable Alterations
shall without further act vest in Lessor (subject to each Lessee's right to
remove severable trade fixtures and Lessee Equipment) and shall be deemed to
constitute a part of the Leased Properties and be subject to this Lease.
ARTICLE VII.
USE
---
Each Lessee may use each Leased Property leased by it or any part thereof
for any lawful purpose, provided that such use does not materially adversely
affect the Fair Market Sales Value, utility, remaining useful life or residual
value of such Leased Property, and does not materially violate or conflict with,
or constitute or result in a material default under, any Applicable Law or any
insurance policy required hereunder. In the event that any use of any of the
Leased Property substantially changes the character or original intended use of
such Leased Property and the Lessees do not purchase the Leased Properties at
the end of the Lease Term, the related Lessee, upon request of Lessor, shall
restore such Leased Property to its general character and intended use on the
Closing Date or Completion Date therefor, ordinary wear and tear excepted. No
Lessee shall commit or permit any waste of any Leased Property or any material
part thereof.
ARTICLE VIII.
INSURANCE
---------
The provisions of this Article VIII shall apply to Leased Properties that
are not then subject to the Construction Agency Agreement. For any Leased
Property subject to the Construction Agency Agreement, the related Lessee shall
maintain insurance in accordance with Section 2.9 of the Construction Agency
Agreement.
(a) At any time during which any part of any Building or any
Alteration is under construction and as to any part of any Building or any
Alteration under construction, the related Lessee shall maintain, or cause to be
maintained, at its sole cost and expense, as a part of its blanket policies or
otherwise, "all risks" non-reporting completed value form of builder's risk
insurance.
(b) During the Lease Term, each Lessee shall maintain, at its sole
cost and expense, as a part of its blanket policies or otherwise, insurance
against loss or damage to any Building or any item of Equipment by fire and
other risks, including comprehensive boiler and machinery coverage, on terms and
in amounts no less favorable than insurance covering other similar properties or
equipment owned or leased by a Lessee, but in no event less than the replacement
cost of such Building or item of Equipment, as the case may be, from time to
time,
8
with commercially reasonable deductibles (but in no event with greater
deductibles than any Lessee has with respect to similar property or equipment
that it owns or leases).
(c) During the Lease Term, each Lessee shall maintain, at its sole
cost and expense, commercial general liability insurance with respect to such
Lessee's use, operation and occupancy of the Leased Properties. Such insurance
shall be on terms and in amounts that are no less favorable than insurance
maintained by a Lessee or its Affiliates with respect to similar properties or
equipment that it owns or leases, but in no event less than $2,000,000 general
liability coverage, per occurrence. Such insurance policies shall also provide
that each Lessee's insurance shall be considered primary insurance. Nothing in
this Article VIII shall prohibit the Agent or any Funding Party from carrying at
its own expense other insurance on or with respect to the Leased Properties,
provided that any insurance carried by the Agent or any Funding Party shall not
prevent any Lessee from carrying the insurance required hereby.
(d) Each policy of insurance maintained by a Lessee pursuant to
clauses (a) and (b) of this Article VIII shall provide that all insurance
proceeds in respect of any loss or occurrence shall be adjusted by such Lessee,
except (a) that with respect to any loss, the estimated cost of restoration of
which is in excess of $10,000,000, the adjustment thereof shall be subject to
the prior written approval of the Agent (which shall not be unreasonably
withheld, conditioned or delayed) and the insurance proceeds therefor shall be
paid to the Agent for application in accordance with this Lease, and (b) if, and
for so long as an Event of Default exists, all losses shall be adjusted solely
by, and all insurance proceeds shall be paid solely to, the Agent for
application pursuant to this Lease.
(e) On the Closing Date for each parcel of Land and on, or within
thirty (30) days prior to, each anniversary of the Initial Closing Date, each
Lessee shall furnish Lessor with certificates showing the insurance required
under this Article VIII to be in effect and, in the case of the liability
policies, naming the Agent and the Funding Parties as additional insureds and,
in the case of property insurance, naming the Agent as loss payee to the extent
required under this Lease. Such certificates shall include a provision for
thirty (30) days' advance written notice by the insurer to Lessor and the Agent
in the event of cancellation or expiration or nonpayment of premium with respect
to such insurance, and shall include a customary breach of warranty clause. Each
Lessee shall provide evidence to Lessor and the Agent that each insurance policy
required by this Article VIII has been renewed or replaced prior to the
scheduled expiration date therefor.
(f) Each policy of insurance maintained by a Lessee pursuant to this
Article VIII shall provide that in respect of the interests of Lessor, the Agent
and the Lenders, such policies shall not be invalidated by any fraud, action,
inaction or misrepresentation of any Lessee or any other Person acting on behalf
of any Lessee. Each of each Lessee, Lessor, the Agent and the Lenders agree to
waive their rights of subrogation against the others to the extent permitted by
Applicable Law and to the extent of the losses paid under insurance policies.
(g) All insurance policies carried in accordance with this Article
VIII shall be maintained with insurers rated at least A by A.M. Best & Company,
and in all cases the insurer shall be qualified to insure risks in the State
where each Leased Property is located.
9
ARTICLE IX.
ASSIGNMENT AND SUBLEASING
-------------------------
Except as set forth in the next two sentences, no Lessee may assign its
rights and obligations under this Lease or sublease any Leased Property to any
Person, without the consent of the Funding Parties. Concord may assign its
rights and obligations under this Lease to a Significant Subsidiary, provided
that Concord reaffirms its obligations under the Guaranty Agreement (in which
case Concord shall be released from liability as a Lessee (but not as an
Obligor) under this Lease and the other Operative Documents). Each Lessee may
sublease all or any portion of any Leased Property to any Subsidiary of Concord
and may sublease up to 50% of the floor space of any Leased Property to any
Person without the consent of the Funding Parties, provided that (a) all
obligations of such Lessee shall continue in full force and effect as
obligations of a principal and not of a guarantor or surety, as though no
sublease had been made, and all obligations of Guarantor and the Subsidiary
Guarantors under the Guaranty Agreement and the Subsidiary Guaranty,
respectively, shall continue in full force and effect; (b) such sublease shall
be expressly subject and subordinate to this Lease, the Loan Agreement and the
other Operative Documents; and (c) each such sublease shall terminate at least
one day before the Lease Termination Date. Each Lessee shall give the Agent and
Lessor prompt written notice of any such sublease.
Except pursuant to an Operative Document or the IDB Documentation, this
Lease shall not be mortgaged or pledged by any Lessee, nor shall any Lessee
mortgage or pledge any interest in any Leased Property or any portion thereof.
Any such mortgage or pledge shall be void.
ARTICLE X.
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
-----------------------------------------
Section 10.1 Event of Loss. Any event (i) which would otherwise constitute
a Casualty during the Base Term, and (ii) which, in the good-faith judgment of
the related Lessee, renders repair and restoration of a Leased Property
impossible or impractical, or requires repairs to a Leased Property that would
cost in excess of 50% of the original cost of such Leased Property or that
cannot be completed by the Lease Termination Date, and (iii) as to which such
Lessee, within sixty (60) days after the occurrence of such event, delivers to
Lessor an Officer's Certificate notifying Lessor of such event and of such
judgment, shall constitute an "Event of Loss". In the case of any other event
which constitutes a Casualty, the related Lessee shall restore such Leased
Property pursuant to Section 10.3. If an Event of Loss shall occur, the related
Lessee shall pay to Lessor on the later of (i) the 90th day and (ii) the next
Payment Date, in either case following delivery of the Officer's Certificate
pursuant to clause (iii) above an amount equal to the related Leased Property
Balance. Upon Lessor's receipt of such Leased Property Balance on such date,
Lessor shall cause Lessor's interest in such Leased Property to be conveyed to
the related Lessee in accordance with and subject to the provisions of Section
14.5 hereof; upon completion of such purchase, but not prior thereto, this Lease
with respect to such Leased Property and all obligations hereunder with respect
to such Leased Property shall terminate, except with respect to obligations and
liabilities hereunder, actual or contingent, that have arisen or relate to
events occurring on or prior to such date of purchase, or which are expressly
stated herein to survive termination of this Lease.
10
Upon the consummation of the purchase of any Leased Property pursuant to
this Section 10.1, any proceeds derived from insurance required to be maintained
by the related Lessee pursuant to this Lease for any Leased Property remaining
after payment of such purchase price shall be paid over to, or retained by, such
Lessee or as it may direct, and Lessor shall assign to such Lessee, without
warranty (other than as to the absence of Lessor Liens), all of Lessor's rights
to and interest in such insurance required to be maintained by such Lessee
pursuant to this Lease.
Section 10.2 Event of Taking. Any event (i) which constitutes a
Condemnation of all of, or substantially all of, a Leased Property, or (ii) (A)
which would otherwise constitute a Condemnation, (B) which, in the good-faith
judgment of the related Lessee, renders restoration and rebuilding of a Leased
Property impossible or impractical, or requires repairs to a Leased Property
that would cost in excess of 50% of the original cost of such Leased Property,
or that cannot be restored by the Lease Termination Date, and (C) as to which
such Lessee, within sixty (60) days after the occurrence of such event, delivers
to Lessor an Officer's Certificate notifying Lessor of such event and of such
judgment, shall constitute an "Event of Taking". In the case of any other event
which constitutes a Condemnation, the related Lessee shall restore and rebuild
such Leased Property pursuant to Section 10.4. If an Event of Taking shall
occur, the related Lessee shall pay to Lessor (1) on the later of (A) the
thirtieth day and (B) the next Payment Date following the occurrence of such
Event of Taking, in the case of an Event of Taking described in clause (i)
above, or (2) on the later of (A) the 90th day and (B) the next Payment Date, in
either case following delivery of the Officer's Certificate pursuant to clause
(ii) above, in the case of an Event of Taking described in clause (ii) above, an
amount equal to the related Leased Property Balance. Upon Lessor's receipt of
such Leased Property Balance on such date, Lessor shall cause Lessor's interest
in such Leased Property to be conveyed to the related Lessee in accordance with
and subject to the provisions of Section 14.5 hereof (provided that such
conveyance shall be subject to all rights of the condemning authority); upon
completion of such purchase, but not prior thereto, this Lease with respect to
such Leased Property and all obligations hereunder with respect to such Leased
Property shall terminate, except with respect to obligations and liabilities
hereunder, actual or contingent, that have arisen or relate to events occurring
on or prior to such date of purchase, or which are expressly stated herein to
survive termination of this Lease.
Upon the consummation of the purchase of such Leased Property pursuant to
this Section 10.2, all Awards received by Lessor, after deducting any reasonable
out-of-pocket costs incurred by Lessor in collecting such Awards, received or
payable on account of an Event of Taking with respect to such Leased Property
during the related Lease Term shall be promptly paid to the related Lessee, and
all rights of Lessor in Awards not then received shall be assigned to Lessee by
Lessor.
Section 10.3 Casualty. If a Casualty shall occur which is not an Event of
Loss, the related Lessee shall rebuild and restore the affected Leased Property,
will complete the same prior to the Lease Termination Date, and will cause the
condition set forth in Section 3.5 (c) of the Master Agreement to be fulfilled
with respect to such restoration and rebuilding prior to the Lease Termination
Date, regardless of whether insurance proceeds received as a result of such
Casualty are sufficient for such purpose.
11
Section 10.4 Condemnation. If a Condemnation shall occur which is not an
Event of Taking, the related Lessee shall rebuild and restore the affected
Leased Property, will complete the same prior to the Lease Termination Date, and
will cause the condition set forth in Section 3.5 (c) of the Master Agreement to
be fulfilled with respect to such restoration and rebuilding prior to the Lease
Termination Date, regardless of whether the Awards received as a result of such
Condemnation are sufficient for such purpose.
Section 10.5 Verification of Restoration and Rebuilding. In the event of
Casualty or Condemnation that involves, or is reasonably expected to involve,
repair or rebuilding costs in excess of $10,000,000, to verify the related
Lessee's compliance with the foregoing Section 10.3 or 10.4, as appropriate,
Lessor, the Agent, the Lenders and their respective authorized representatives
may, upon five (5) Business Days' notice to such Lessee, make a reasonable
number of inspections of the affected Leased Property with respect to (i) the
extent of the Casualty or Condemnation and (ii) the restoration and rebuilding
of the related Building and the Land. All actual and reasonable out-of-pocket
costs of such inspections incurred by Lessor, the Agent or any Lender will be
paid by the related Lessee promptly after written request. No such inspection
shall unreasonably interfere with the related Lessee's operations or the
operations of any other occupant of such Leased Property. None of the inspecting
parties shall have any duty to make any such inspection or inquiry and none of
the inspecting parties shall incur any liability or obligation by reason of
making or not making any such inspection or inquiry, other than for such
inspecting party's gross negligence or willful misconduct.
Section 10.6 Application of Payments. All proceeds (except for payments
under insurance policies maintained other than pursuant to Article VIII of this
Lease) received at any time by Lessor, any Lessee or the Agent from any
Governmental Authority or other Person with respect to any Condemnation or
Casualty to any Leased Property or any part thereof or with respect to an Event
of Loss or an Event of Taking, plus the amount of any payment that would have
been due from an insurer but for a Lessee's self-insurance or deductibles ("Loss
Proceeds"), shall (except to the extent Section 10.9 applies) be applied as
follows:
(a) In the event the related Lessee purchases such Leased Property
pursuant to Section 10.1 or Section 10.2, such Loss Proceeds shall be
applied as set forth in Section 10.1 or Section 10.2, as the case may be;
(b) In the event of a Casualty at such time when no Event of Default
has occurred and is continuing and the related Lessee is obligated to
repair and rebuild such Leased Property pursuant to Section 10.3, such
Lessee may, in good faith and subsequent to the date of such Casualty,
certify to Lessor and to the applicable insurer that no Event of Default
has occurred and is continuing, in which event the applicable insurer shall
pay the Loss Proceeds to such Lessee;
(c) In the event of a Condemnation at such time when no Event of
Default has occurred and is continuing and the related Lessee is obligated
to repair and rebuild such Leased Property pursuant to Section 10.4, such
Lessee may, in good faith and subsequent to the date of such Condemnation,
certify to Lessor and the Agent that no Event of Default has occurred and
is continuing, in which event the applicable Award shall be paid over to
such Lessee;
12
(d) As provided in Section 10.8, if such section is applicable; and
(e) In the event of a Casualty or Condemnation at a time when an
Event of Default has occurred and is continuing, the Loss Proceeds or Award
shall be paid to the Agent and shall be (A) applied to the Lease Balance if
the Agent is exercising remedies pursuant to Section 13.1 or (B) released
to the related Lessee upon certification by such Lessee to Lessor and the
Agent that such Lessee has incurred costs in the amount requested to be
released for the repair or rebuilding of the related Leased Property.
During any period of repair or rebuilding pursuant to this Article X, this
Lease will remain in full force and effect and Basic Rent shall continue to
accrue and be payable without abatement or reduction. Each Lessee shall maintain
records setting forth information relating to the receipt and application of
payments in accordance with this Section 10.6. Such records shall be kept on
file by each Lessee at its offices and shall be made available to Lessor, the
Lenders and the Agent upon request.
Section 10.7 Prosecution of Awards. (a) If any Condemnation shall occur,
the party receiving the notice of such Condemnation shall give to the other
party and the Agent promptly, but in any event within thirty (30) days after the
occurrence thereof, written notice of such occurrence and the date thereof,
generally describing the nature and extent of such Condemnation. With respect to
any Event of Taking or any Condemnation, the related Lessee shall control the
negotiations with the relevant Governmental Authority as to any proceeding in
respect of which Awards are required, under Section 10.6, to be assigned or
released to such Lessee, unless an Event of Default shall have occurred and be
continuing, in which case (i) the Agent (or Lessor if the Loans have been fully
paid) shall control such negotiations; and (ii) such Lessee hereby irrevocably
assigns, transfers and sets over to Lessor all rights of such Lessee to any
Award on account of any Event of Taking or any Condemnation and, if there will
not be separate Awards to Lessor and such Lessee on account of such Event of
Taking or Condemnation, irrevocably authorizes and empowers the Agent (or Lessor
if the Loans have been fully paid) during the continuance of an Event of
Default, with full power of substitution, in the name of such Lessee or
otherwise (but without limiting the obligations of such Lessee under this
Article X), to file and prosecute what would otherwise be such Lessee's claim
for any such Award and to collect, receipt for and retain the same. The agency
and power of the Agent (or of the Lessor if the Loans have been fully paid) as
attorney-in-fact hereunder are coupled with an interest, and cannot be revoked
by bankruptcy, insolvency, incompetency, death, dissolution or otherwise. In any
event Lessor and the Agent may participate in such negotiations, and no
settlement will be made without the prior consent of the Agent (or Lessor if the
Loans have been fully paid), not to be unreasonably withheld.
(b) Notwithstanding the foregoing, each Lessee may prosecute, and
Lessor shall have no interest in, any claim with respect to such Lessee's
personal property and Lessee Equipment , business interruption or similar award
and such Lessee's relocation expenses.
Section 10.8 Application of Certain Payments Not Relating to an Event of
Taking. In case of a requisition for temporary use of all or a portion of any
Leased Property which is not an Event of Taking, this Lease shall remain in full
force and effect with respect to such Leased Property, without any abatement or
reduction of Basic Rent, and the Awards for such Leased
13
Property shall, unless an Event of Default has occurred and is continuing, be
paid to the related Lessee.
Section 10.9 Other Dispositions. Notwithstanding the foregoing provisions
of this Article X, so long as an Event of Default shall have occurred and be
continuing, any amount that would otherwise be payable to or for the account of,
or that would otherwise be retained by, Lessee pursuant to this Article X shall
be paid to the Agent (or Lessor if the Loans have been fully paid) as security
for the obligations of the Lessees under this Lease and, at such time thereafter
as no Event of Default shall be continuing, such amount shall be paid promptly
to the related Lessee to the extent not previously applied by Lessor or the
Agent in accordance with the terms of this Lease or the other Operative
Documents.
Section 10.10 No Rent Abatement. Rent shall not abate hereunder by reason
of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of
any Leased Property, and each Lessee shall continue to perform and fulfill all
of such Lessee's obligations, covenants and agreements hereunder notwithstanding
such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease
Termination Date, except to the extent that the affected Leased Property is
purchased by the related Lessee.
Section 10.11 Event During Construction Period. Notwithstanding anything to
the contrary set forth herein, if a Casualty, Condemnation, Event of Loss or
Event of Taking occurs during the Construction Term with respect to a Leased
Property, the Construction Agency Agreement shall govern the related Lessee's
obligations with respect thereto.
ARTICLE XI.
INTEREST CONVEYED TO LESSEES
----------------------------
Each Lessee and Lessor intend that this Lease be treated, for accounting
purposes of the Lessee, as an operating lease. For purposes of federal and state
taxes, and bankruptcy law, each Lessee and Lessor intend that the transaction
represented by this Lease be treated as a financing transaction; for such
purposes, it is the intention of the parties hereto (i) that this Lease be
treated as a mortgage, deed of trust or deed to secure debt (whichever is
applicable in the jurisdictions in which the Leased Properties are located) and
security agreement, encumbering the Leased Properties, and that each Lessee, as
grantor, hereby grants to Lessor, as mortgagee or beneficiary and secured party,
or any successor thereto, a first and paramount Lien on each Leased Property in
which such Lessee has an interest, (ii) that Lessor shall have, as a result of
such determination, all of the rights, powers and remedies of a mortgagee, deed
of trust beneficiary, grantee under a deed to secure debt or secured party
available under Applicable Law to take possession of and sell (whether by
foreclosure or otherwise) any Leased Property after the occurrence of an Event
of Default, (iii) that the effective date of such mortgage, security deed or
deed of trust shall be the effective date of this Lease, or the related Lease
Supplement, if later, (iv) that the recording of this Lease or a Lease
Supplement shall be deemed to be the recording of such mortgage, security deed
or deed of trust, (v) that the obligations secured by such mortgage, security
deed or deed of trust shall include the Funded Amounts and all Basic Rent and
Supplemental Rent hereunder and all other obligations of and amounts due from
each Lessee hereunder and under the Operative Documents and (vi) that the
related Lessee will be treated as the owner of the Leased Properties leased by
such Lessee for tax purposes.
14
ARTICLE XII.
EVENTS OF DEFAULT
-----------------
The following events shall constitute Events of Default (whether any such
event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) any Lessee shall fail to make any payment of Basic Rent and such
failure shall continue for five (5) or more Business Days;
(b) any Lessee shall fail to make any payment of Rent (other than
Basic Rent and other than as set forth in clause (c)) or any other amount
payable hereunder or under any of the other Operative Documents (other than
Basic Rent and other than as set forth in clause (c)), and such failure
shall continue for a period of ten (10) days;
(c) any Lessee shall fail to pay the Funded Amount or Lease Balance
when due pursuant to Section 10.1, 10.2, 14.1 or 14.2, or any Lessee shall
fail to pay the Recourse Deficiency Amount when required pursuant to
Article XIV or a Construction Agency Event of Default has occurred and is
continuing, or Concord fails to deposit cash collateral as and when
required pursuant to Section 2.6 of the Master Agreement;
(d) any Lessee shall fail to maintain insurance as required by
Article VIII hereof, and such failure shall continue until the earlier of
(i) thirty (30) days after written notice thereof from Lessor and (ii) the
day immediately preceding the date on which any applicable insurance
coverage would otherwise lapse or terminate;
(e) any Obligor shall fail to pay at maturity, or within any
applicable period of grace, any Indebtedness in excess of $25,000,000 in
the aggregate, in the case of Concord, or $10,000,000 in the aggregate, in
the case of any other Obligor, or fail to observe or perform any term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing Indebtedness in excess of $25,000,000 in the
aggregate, in the case of Concord, or $10,000,000 in the aggregate, in the
case of any other Obligor for such period of time as would permit (assuming
the giving of appropriate notice if required) the holder or holders thereof
or of any obligations issued thereunder to accelerate the maturity thereof;
(f) any Obligor shall cease to be Solvent, or shall make an
assignment for the benefit of creditors, or admit in writing its inability
to pay or generally fail to pay its debts as they mature or become due, or
shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any Obligor or of any substantial part
of the assets of any Obligor or shall commence any case or other proceeding
relating to any Obligor under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law
of any jurisdiction, now or hereafter in effect, or shall take any action
to authorize or in furtherance of any of the fore going, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against any Obligor and such Obligor shall indicate its
15
approval thereof, consent thereto or acquiescence therein; or the filing of
any case or other proceeding against any obligor under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law of any jurisdiction, now or hereafter in
effect and such case or proceeding is not discharged or dismissed within
sixty (60) days of its commencement; a decree or order is entered
appointing any such trustee, custodian, liquidator or receiver or
adjudicating any Obligor bankrupt or insolvent, or approving a petition in
any such case or other proceeding, or a decree or order for relief is
entered in respect of any Obligor, in an involuntary case under federal
bankruptcy laws as now or hereafter constituted;
(g) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive, any
uninsured final unappealable judgment against any Obligor that, with other
outstanding uninsured final unappealable judgments, undischarged, against
the Obligors exceeds $25,000,000 in the aggregate;
(h) if any of the Operative Documents shall be cancelled, terminated,
revoked or rescinded or any action at law, suit or in equity or other legal
proceeding to cancel, revoke or rescind any of the Operative Documents
shall be commenced by or on behalf of any Obligor, or any court or any
other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment, order,
decree or ruling to the effect that, any one or more of the Operative
Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;
(i) The occurrence of any of the following events: (i) any member of
the ERISA Group fails to make full payment when due of all amounts which,
under the provisions of any Plan or Section 412 of the Code, any member of
the ERISA Group is required to pay as contributions thereto, except in
cases in which a failure to make such payment is not reasonably likely to
result, in any given instance or in the aggregate, in liability of any
member of the ERISA Group in excess of $25,000,000, (ii) an accumulated
funding deficiency in excess of $25,000,000 occurs or exists, whether or
not waived, with respect to any Plan, (iii) a Termination Event or (iv) any
member of the ERISA Group as employers under one or more Multiemployer Plan
makes a complete or partial withdrawal from any such Multiemployer Plan and
the plan sponsor of such Multiemployer Plans notifies such withdrawing
employer that such employer has incurred a withdrawal liability requiring
payments in an amount exceeding $25,000,000;
(j) any representation or warranty by Concord or any other Obligor in
any Operative Document or in any certificate or document delivered to
Lessor, the Agent or any Lender pursuant to any Operative Document shall
have been incorrect in any material respect when made;
(k) any Obligor shall fail in any material respect to timely perform
or observe any covenant or material agreement (not included in clause (a)
through (j) of this Article XII) to be performed or observed by it
hereunder or under any other Operative Document and such failure shall
continue for a period of thirty (30) days (or 10 Business Days in the case
of financial covenants) after such Obligor's or Concord's receipt of
16
written notice thereof from Lessor, the Agent or any Lender or such Obligor
or Concord shall have knowledge of such failure; or
(l) Any person or group of persons (within the meaning of Section
13(d) of the Securities Exchange Act of 1934, as amended) shall obtain
ownership or control in one or more series of transactions of thirty
percent (30%) or more of the common stock or thirty percent (30%) or more
of the voting power of Concord entitled to vote in the election of members
of the board of directors of Concord or there shall have occurred under any
indenture or other instrument evidencing any Indebtedness in excess of
$50,000,000 any "change in control" (as defined in such indenture or other
evidence of Indebtedness) obligating Concord to repurchase, redeem or repay
all or any part of the Indebtedness provided for therein (any such event, a
"Change in Control"), or any Obligor (other than Concord) ceases for any
reason to be a wholly-owned Subsidiary of Concord, except for, in any case,
the FDC Merger.
ARTICLE XIII.
ENFORCEMENT
-----------
Section 13.1 Remedies. Upon the occurrence and during the continuance of
any Event of Default, Lessor may do one or more of the following as Lessor in
its sole discretion shall determine, without limiting any other right or remedy
Lessor may have on account of such Event of Default (including, without
limitation, the obligation of the Lessees to purchase the Leased Properties as
set forth in Section 14.3):
(a) Lessor may, by notice to Concord, rescind or terminate this Lease
as of the date specified in such notice; however, (A) no reletting, reentry
or taking of possession of any Leased Property by Lessor will be construed
as an election on Lessor's part to terminate this Lease unless a written
notice of such intention is given to Concord, (B) notwithstanding any
reletting, reentry or taking of possession, Lessor may at any time
thereafter elect to terminate this Lease for a continuing Event of Default,
and (C) no act or thing done by Lessor or any of its agents,
representatives or employees and no agreement accepting a surrender of any
Leased Property shall be valid unless the same be made in writing and
executed by Lessor;
(b) Lessor may (i) demand that the Lessees, and the Lessees shall
upon the written demand of Lessor, return the Leased Properties promptly to
Lessor in the manner and condition required by, and otherwise in accordance
with all of the provisions of, Articles VI and XIV hereof as if the Leased
Properties were being returned at the end of the Lease Term, and Lessor
shall not be liable for the reimbursement of any Lessee for any costs and
expenses incurred by such Lessee in connection therewith and (ii) without
prejudice to any other remedy which Lessor may have for possession of the
Leased Properties, and to the extent and in the manner permitted by
Applicable Law, enter upon any Leased Property and take immediate
possession of (to the exclusion of the related Lessee) any Leased Property
or any part thereof and expel or remove the related Lessee and any other
person who may be occupying such Leased Property, by summary proceedings or
otherwise, all without liability to any Lessee for or by reason of such
entry or taking of possession, whether for the restoration of damage to
property caused by such
17
taking or otherwise and, in addition to Lessor's other damages, the Lessees
shall be responsible for the actual and reasonable costs and expenses of
reletting, including brokers' fees and the reasonable out-of-pocket costs
of any alterations or repairs made by Lessor;
(c) Lessor may (i) sell all or any part of any Leased Property at
public or private sale, as Lessor may determine, free and clear of any
rights of any Lessee and without any duty to account to any Lessee with
respect to such action or inaction or any proceeds with respect thereto
(except to the extent required by Applicable Law or clause (ii) below if
Lessor shall elect to exercise its rights thereunder) in which event the
related Lessee's obligation to pay Basic Rent for such Leased Property
hereunder for periods commencing after the date of such sale shall be
terminated or proportionately reduced, as the case may be; and (ii) if
Lessor shall so elect, demand that the related Lessee pay to Lessor, and
the related Lessee shall pay to Lessor, on the date of such sale, as
liquidated damages for loss of a bargain and not as a penalty (the parties
agreeing that Lessor's actual damages would be difficult to predict, but
the aforementioned liquidated damages represent a reasonable approximation
of such amount) (in lieu of Basic Rent due for periods commencing on or
after the Payment Date coinciding with such date of sale (or, if the sale
date is not a Payment Date, the Payment Date next preceding the date of
such sale)), an amount equal to (a) the excess, if any, of (1) the sum of
(A) all Rent due and unpaid to and including such Payment Date and (B) the
Lease Balance, computed as of such date, over (2) the net proceeds of such
sale (that is, after deducting all out-of-pocket costs and expenses
incurred by Lessor, the Agent or any Lender incident to such conveyance
(including, without limitation, all costs, expenses, fees, premiums and
taxes described in Section 14.5(b)); plus (b) interest at the Overdue Rate
on the foregoing amount from such Payment Date until the date of payment;
(d) Lessor may, at its option, not terminate this Lease, and continue
to collect all Basic Rent, Supplemental Rent, and all other amounts
(including, without limitation, the Funded Amount) due Lessor (together
with all costs of collection) and enforce the Lessees' obligations under
this Lease as and when the same become due, or are to be performed, and at
the option of Lessor, upon any abandonment of any Leased Property by Lessee
or re-entry of same by Lessor, Lessor may, in its sole and absolute
discretion, elect not to terminate this Lease with respect thereto and may
make such reasonable alterations and necessary repairs in order to relet
such Leased Property, and relet such Leased Property or any part thereof
for such term or terms (which may be for a term extending beyond the term
of this Lease) and at such rental or rentals and upon such other terms and
conditions as Lessor in its reasonable discretion may deem advisable; and
upon each such reletting all rentals actually received by Lessor from such
reletting shall be applied to the Lessees' obligations hereunder in such
order, proportion and priority as Lessor may elect in Lessor's sole and
absolute discretion. If such rentals received from such reletting during
any Rent Period are less than the Rent to be paid during that Rent Period
by the Lessees hereunder, the Lessees shall pay any deficiency, as
calculated by Lessor, to Lessor on the Payment Date for such Rent Period;
(e) Lessor may, whether or not Lessor shall have exercised or shall
thereafter at any time exercise any of its rights under paragraph (b), (c)
or (d) of this Article XIII,
18
demand, by written notice to Concord specifying a date (the "Final Rent
Payment Date") not earlier than 30 days after the date of such notice, that
Lessees purchase, on the Final Rent Payment Date, all of the remaining
Leased Properties in accordance with the provisions of Sections 14.2, 14.4
and 14.5; provided, however, that (1) such purchase shall occur on the date
set forth in such notice, notwithstanding the provision in Section 14.2
calling for such purchase to occur on the Lease Termination Date; and (2)
Lessor's obligations under Section 14.5(a) shall be limited to delivery of
a special (or limited) warranty deed and quit claim bill of sale of such
Leased Properties, without recourse or warranty, but free and clear of
Lessor Liens;
(f) Lessor may exercise any other right or remedy that may be
available to it under Applicable Law, or proceed by appropriate court
action (legal or equitable) to enforce the terms hereof or to recover
damages for the breach hereof. Separate suits may be brought to collect any
such damages for any Rent Period(s), and such suits shall not in any manner
prejudice Lessor's right to collect any such damages for any subsequent
Rent Period(s), or Lessor may defer any such suit until after the
expiration of the Lease Term, in which event such suit shall be deemed not
to have accrued until the expiration of the Lease Term; or
(g) Lessor may retain and apply against Lessor's damages all sums
which Lessor would, absent such Event of Default, be required to pay to, or
turn over to, a Lessee pursuant to the terms of this Lease.
Section 13.2 Remedies Cumulative; No Waiver; Consents. To the extent
permitted by, and subject to the mandatory requirements of, Applicable Law, each
and every right, power and remedy herein specifically given to Lessor or
otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any right, power or remedy. No delay or omission by Lessor in the
exercise of any right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of any Lessee or to be an acquiescence therein. Lessor's
consent to any request made by any Lessee shall not be deemed to constitute or
preclude the necessity for obtaining Lessor's consent, in the future, to all
similar requests. No express or implied waiver by Lessor of any Event of Default
shall in any way be, or be construed to be, a waiver of any future or subsequent
Potential Event of Default or Event of Default. To the extent permitted by
Applicable Law, each Lessee hereby waives any rights now or hereafter conferred
by statute or otherwise that may require Lessor to sell, lease or otherwise use
any Leased Property or part thereof in mitigation of Lessor's damages upon the
occurrence of an Event of Default or that may otherwise limit or modify any of
Lessor's rights or remedies under this Article XIII.
Section 13.3 Purchase Upon an Event of Default. Upon the occurrence of an
event described in paragraph (d), (j) or (k) of Article XII that relates to only
one or more Leased Properties, if the related Lessee purchases the affected
Leased Property or Leased Properties in
19
accordance with Section 14.5 within five (5) Business Days of Concord's receipt
of notice from the Agent requiring such purchase, such Event of Default shall be
deemed to be cured. Upon the occurrence of an Event of Default, until such time
as Lessor commences material preparations for the sale or re-lease of the Leased
Properties, the Lessees may purchase all, but not less than all, of the Leased
Properties for the Lease Balance, plus any amounts due pursuant to Section 7.5
of the Master Agreement. Such purchase shall be made in accordance with Section
14.5, upon not less than five (5) Business Days' written notice (which shall be
irrevocable) to Lessor, which notice shall set forth the date of purchase (which
shall be a date no later than 30 Business Days from the date of such notice).
Section 13.4 Limitation on Liability. Notwithstanding the provisions of
Section 13.1, the Lessees' recourse liability to Lessor as a consequence of the
occurrence of a Limited Event of Default shall be limited to the payment by the
Lessees of the Limited Recourse Amount for all of the Leased Properties;
provided, however if Concord agrees or acknowledges in writing that an Event of
Default has occurred (including an acknowledgment that an event of default has
occurred under any agreement evidencing Indebtedness or any replacement
thereof), then the Lessor shall be entitled to exercise any of the remedies set
forth in Section 13.1.
ARTICLE XIV.
SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL
----------------------------------------------------
Section 14.1 Lessee's Option to Purchase. Subject to the terms, conditions
and provisions set forth in this Article XIV, each Lessee shall have the option
(a "Purchase Option"), to be exercised as set forth below, to purchase from
Lessor, Lessor's interest in any or all of the Leased Properties. Such option
must be exercised with respect to any Leased Property by written notice to
Lessor not later than six months prior to the Lease Termination Date, which
notice shall be irrevocable; such notice shall specify the Leased Property to be
purchased, and the date that such purchase shall take place, which date shall be
a date occurring not less than sixty (60) days after such notice or the Lease
Termination Date (whichever is earlier). If the Purchase Option is exercised
pursuant to the foregoing with respect to any Leased Property, then, subject to
the provisions set forth in this Article XIV, on the applicable purchase date or
the Lease Termination Date, as the case may be, Lessor shall convey to the
related Lessee, by special or limited warranty deed and bill of sale, without
recourse or warranty (other than as to the absence of Lessor Liens) and the
related Lessee shall purchase from Lessor, Lessor's interest in the Leased
Property or Leased Properties that are the subject of such Purchase Option.
Section 14.2 Conveyance to Lessee. With respect to any Leased Property,
unless (a) a Lessee shall have properly exercised the Purchase Option and
purchased such Leased Property pursuant to Section 14.1 hereof, or (b) the
related Lessee shall have properly exercised the Remarketing Option with respect
to such Leased Property and shall have fulfilled all of the conditions of
Section 14.6 hereof with respect to such Leased Property, then, subject to the
terms, conditions and provisions set forth in this Article XIV, the related
Lessee shall purchase from Lessor, and Lessor shall convey to each Lessee, on
the Lease Termination Date all of Lessor's interest in such Leased Property. Any
Lessee may designate, in a notice given to Lessor not less than ten (10)
Business Days prior to the closing of such purchase, or any purchase pursuant to
Section 14.1, (time being of the essence), the transferee to whom the conveyance
shall be made (if other than to such Lessee), in which case such conveyance
shall (subject to the
20
terms and conditions set forth herein) be made to such designee; provided,
however, that such designation of a transferee shall not cause any Lessee to be
released, fully or partially, from any of its obligations under this Lease.
Section 14.3 Acceleration of Purchase Obligation. The Lessees shall be
obligated to purchase Lessor's interest in the Leased Properties immediately,
automatically and without notice upon the occurrence of any Event of Default
specified in clause (f) of Article XII (subject to clause (ii) of the definition
of Limited Event of Default), for the purchase price set forth in Section 14.4.
Subject to Section 13.4, upon the occurrence and during the continuance of any
other Event of Default, the Lessees shall be obligated to purchase Lessor's
interest in the Leased Properties for the purchase price set forth in Section
14.4 upon notice of such obligation from Lessor.
Section 14.4 Determination of Purchase Price. Upon the purchase by the
Lessees of Lessor's interest in all of the Leased Properties upon the exercise
of the Purchase Option or pursuant to Section 14.2 or 14.3, the aggregate
purchase price for all of the Leased Properties shall be an amount equal to the
Lease Balance as of the closing date for such purchase, including any amount due
pursuant to Section 7.5(f) of the Master Agreement as a result of such purchase.
Upon the purchase by a Lessee of Lessor's interest in a Leased Property upon the
exercise of a Purchase Option with respect to a particular Leased Property, the
purchase price for such Leased Property shall be an amount equal to the Leased
Property Balance for such Leased Property as of the closing date for such
purchase, including any amount due pursuant to Section 7.5(f) of the Master
Agreement as the result of such purchase.
Section 14.5 Purchase Procedure. (a) If a Lessee shall purchase Lessor's
interest in a Leased Property pursuant to any provision of this Lease, (i) such
Lessee shall accept from Lessor and Lessor shall convey such Leased Property by
a duly executed and acknowledged special (or limited) warranty deed and quit
claim bill of sale of such a Leased Property in recordable form, (ii) upon the
date fixed for any purchase of Lessor's interest in Leased Property hereunder,
the related Lessee(s) shall pay to the order of the Agent (or Lessor if the
Loans have been paid in full) the Lease Balance or Leased Property Balance, as
applicable, including any amount due pursuant to Section 7.5 of the Master
Agreement as a result of such purchase by wire transfer of immediately available
funds, (iii) Lessor will execute and deliver to the related Lessee such other
documents, including releases, affidavits, termination agreements and
termination statements, as may be legally required or as may be reasonably
requested by Lessee in order to effect such conveyance, free and clear of Lessor
Liens and the Liens of the Operative Documents, (iv) if such Leased Property is
subject to a Ground Lease, Lessor will execute and deliver to the related Lessee
an assignment or termination of such Ground Lease, as directed by such Lessee,
in such form as may be reasonably requested by such Lessee, and such Lessee
shall pay any amounts due with respect thereto under such Ground Lease and, if
such Ground Lease is assigned, assume all obligations thereunder and (v) if such
Leased Property is subject to IDB Documentation, Lessor will execute and deliver
to the related Lessee, and the related Lessee shall accept, an assignment and
assumption of such IDB Documentation to and by such related Lessee, in such form
as may be reasonably requested by such Lessee, and such Lessee shall pay any
amounts due with respect thereto under such IDB Documentation.
21
(b) Each Lessee shall, at such Lessee's sole cost and expense, obtain
all required governmental and regulatory approval and consents and in connection
therewith shall make such filings as required by Applicable Law, and Lessor
shall cooperate with such Lessee upon such Lessee's request in connection
therewith; in the event that Lessor is required by Applicable Law to take any
action in connection with such purchase and sale, the Lessees shall pay prior to
transfer all reasonable out-of-pocket costs incurred by Lessor in connection
therewith. Without limiting the foregoing, all costs incident to such
conveyance, including, without limitation, each Lessee's attorneys' fees,
Lessor's attorneys' fees, commissions, each Lessee's and Lessor's escrow fees,
recording fees, title insurance premiums and all applicable documentary transfer
or other transfer taxes and other taxes required to be paid in order to record
the transfer documents that might be imposed by reason of such conveyance and
the delivery of such deed shall, as between Lessees on the one hand, and the
Funding Parties on the other hand, be borne entirely by and paid by the Lessees.
(c) Upon expiration or termination of this Lease resulting in
conveyance of Lessor's interest in the title to the Leased Properties to the
Lessees, there shall be no apportionment of rents (including, without
limitation, water rents and sewer rents), taxes, insurance, utility charges or
other charges payable with respect to the Leased Properties, all of such rents,
taxes, insurance, utility or other charges due and payable with respect to the
Leased Properties prior to termination being payable by the Lessees hereunder
and all due after such time being payable by the Lessees as the then owners of
the Leased Properties.
Section 14.6 Option to Remarket. Subject to the fulfillment of each of the
conditions set forth in this Section 14.6, the Lessees shall have the option to
market any of the Leased Properties for Lessor (the "Remarketing Option").
The Lessees' effective exercise and consummation of the Remarketing Option
shall be subject to the due and timely fulfillment of each of the following
provisions, the failure of any of which, unless waived in writing by Lessor and
the Lenders, shall render the Remarketing Option and the Lessees' exercise
thereof null and void, in which event, each Lessee shall be obligated to perform
its obligations under Section 14.2.
(a) Not later than twelve months prior to the Lease Termination Date,
Concord shall give to Lessor and the Agent written notice of the Lessees'
exercise of the Remarketing Option, which notice shall specify the Leased
Property or Leased Properties that will be remarketed.
(b) Not later than ten (10) Business Days prior to the Lease
Termination Date, each Lessee shall deliver to Lessor and the Agent an
environmental assessment of each Leased Property leased by it and to be
remarketed dated not earlier than forty-five (45) days prior to the Lease
Termination Date. Such environmental assessment shall be prepared by an
environmental consultant selected by the related Lessee and reasonably
satisfactory to the Required Funding Parties, shall be in form, detail and
substance reasonably satisfactory to the Required Funding Parties, and
shall otherwise indicate no degradation in environmental conditions beyond
those described in the related Environmental Audit for which corrective
action is required by Applicable Law and shall not include a recommendation
for further investigation to make such determination.
22
(c) On the date of Concord's notice to Lessor and the Agent of the
Lessees' exercise of the Remarketing Option, each of the Construction
Conditions shall have been timely satisfied with respect to the Leased
Property or Leased Properties being remarketed and no Event of Default or
Potential Event of Default shall exist, and thereafter, no Event of Default
or Potential Event of Default shall exist under this Lease.
(d) Each Lessee shall have completed in all material respects all
Alterations, restoration and rebuilding of the Leased Property or Leased
Properties leased by it and to be remarketed pursuant to Sections 6.1, 6.2,
10.3 and 10.4 (as the case may be) and shall have fulfilled in all material
respects all of the conditions and requirements in connection therewith
pursuant to said Sections, in each case by the date on which Lessor and the
Agent receive Concord's notice of the Lessees' exercise of the Remarketing
Option (time being of the essence), regardless of whether the same shall be
within such Lessee's control.
(e) Upon request by the Agent, each Lessee shall promptly provide any
maintenance records relating to each Leased Property leased by it and to be
remarketed to Lessor, the Agent and any potential purchaser, and shall
otherwise do all things necessary to deliver possession of such Leased
Property to the potential purchaser at the appropriate closing date. Each
Lessee shall allow Lessor, the Agent and any potential purchaser reasonable
access during normal business hours to any Leased Property to be remarketed
for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the
related Leased Property or Leased Properties leased by it and being
remarketed in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each
Lessee will provide to the purchaser all customary "seller's" indemnities
requested by the potential purchaser (taking into account the location and
nature of the related Leased Property or Leased Properties),
representations and warranties regarding title, absence of Liens (except
Lessor Liens) and the condition of the related Leased Property or Leased
Properties. Each Lessee shall fulfill all of the requirements set forth in
clause (b) of Section 14.5, and such requirements are incorporated herein
by reference, provided that all costs incurred in connection therewith
shall be paid from the proceeds of the sale of the Leased Property. As to
Lessor, any such sale shall be made on an "as is, with all faults" basis
without representation or warranty by Lessor, other than the absence of
Lessor Liens.
(h) The Lessees, jointly and severally, shall pay to the Agent on the
Lease Termination Date (or to such other Person as Agent shall notify
Lessee in writing, or in the case of Supplemental Rent, to the Person
entitled thereto) an amount equal to the Recourse Deficiency Amount for the
Leased Property or Leased Properties that were the subject of the
Remarketing Option, plus all accrued and unpaid Basic Rent and Supplemental
Rent, and all other amounts hereunder with respect to such Leased Property
or Leased Properties which have accrued prior to or as of such date that
are then unpaid, in the type of funds specified in Section 3.3 hereof.
23
If the Lessees have exercised the Remarketing Option, the following additional
provisions shall apply: During the period commencing on the date twelve months
prior to the scheduled expiration of the Lease Term, one or more of the Lessees
shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to
sell Lessor's interest in the Leased Properties that will be remarketed and will
attempt to obtain the highest purchase price therefor. Lessee promptly shall
submit all bids to Lessor and the Agent and Lessor and the Agent will have the
right to review the same and the right to submit any one or more bids. All bids
shall be on an all-cash basis. In no event shall such bidder be a Lessee or any
Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease
Termination Date as the closing date. If, and only if, the Net Selling Price, as
reasonably estimated by the Agent is less than an amount equal to the difference
between the aggregate Leased Property Balances for the Leased Properties that
are the subject of the Remarketing Option at such time minus the Recourse
Deficiency Amount for such remarketed Leased Properties, then Lessor or the
Agent may, in its sole and absolute discretion, by notice to Concord, reject
such offer to purchase, in which event the parties will proceed according to the
provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such
purchase offer as provided above, the closing of such purchase of the related
Leased Properties by such purchaser shall occur on the Lease Termination Date,
contemporaneously with the Lessees' surrender of the related Leased Property or
Leased Properties in accordance with Section 14.8 hereof. The Net Selling Price
shall be paid directly to the Agent (or Lessor if the Funded Amounts have been
fully paid) and shall be distributed pursuant to Section 6.6(a) of the Master
Agreement. No Lessee shall have the right, power or authority to bind Lessor in
connection with any proposed sale of the Leased Properties.
Section 14.7 Rejection of Sale. Notwithstanding anything contained herein
to the contrary, if Lessor or the Agent rejects the purchase offer for any
remarketed Leased Property as provided in (and subject to the conditions set
forth in) Section 14.6, or if no bids are obtained for any remarketed Leased
Property after Lessees have fully complied with their obligations pursuant to
Section 14.6, then (a) the Lessees, jointly and severally, shall pay to the
Agent the Recourse Deficiency Amount for such remarketed Leased Property
pursuant to Section 14.6(h), and (b) Lessor shall retain title to such Leased
Property.
Section 14.8 Return of Leased Property. If Lessor retains title to any
Leased Property pursuant to Section 14.7 hereof, then each Lessee shall, on the
Lease Termination Date, and at its own expense, return possession of the Leased
Properties leased by it to Lessor for retention by Lessor or, if the Lessees
properly exercise the Remarketing Option and fulfill all of the conditions of
Section 14.6 hereof and neither Lessor nor the Agent rejects such purchase offer
pursuant to Section 14.6, then each Lessee shall, on such Lease Termination
Date, and at its own cost, transfer possession of the remarketed Leased
Properties leased by it to the independent purchaser thereof, in each case by
surrendering the same into the possession of Lessor or such purchaser, as the
case may be, free and clear of all Liens other than Lessor Liens, in as good
condition as it was on the Completion Date therefor in the case of new
Construction, or the Funding Date (as modified by Alterations permitted by this
Lease), ordinary wear and tear excepted, and in compliance in all material
respects with Applicable Law. Each Lessee shall, on and within a reasonable time
before and after the Lease Termination Date, cooperate with Lessor and the
independent purchaser of any Leased Property leased by such Lessee in order to
facilitate the ownership and operation by such purchaser of such Leased Property
after the Lease Termination Date, which cooperation shall include the following,
all of which such Lessee shall
24
do on or before the Lease Termination Date or as soon thereafter as is
reasonably practicable: providing all books and records regarding the related
Lessee's maintenance of such Leased Property and all know-how, data and
technical information relating thereto, providing a copy of the Plans and
Specifications within the possession or control of such Lessee or Concord, or
its agent, granting or assigning all licenses (to the extent assignable without
third party consent) necessary for the operation and maintenance of such Leased
Property, and cooperating in seeking and obtaining all necessary Governmental
Action. Each Lessee shall have also paid the cost of all Alterations commenced
prior to the Lease Termination Date. The obligations of such Lessee under this
Article XIV shall survive the expiration or termination of this Lease.
Section 14.9 Renewal. Subject to the conditions set forth herein, Concord
may, by written notice to Lessor and the Agent given not later than twelve
months and not earlier than sixteen months, prior to the scheduled Lease
Termination Date, request to renew this Lease for one period of five years,
commencing on the date following such Lease Termination Date. No later than the
date that is 90 days after receipt by Lessor and the Agent of such request, the
Agent will notify Concord whether or not Lessor and the Lenders consent to such
renewal request (which consent may be granted or denied in the Lessor's and each
Lender's sole discretion and may be conditioned on such conditions precedent as
may be specified by Lessor or such Lender). If the Agent fails to respond in
such time frame, such failure shall be deemed to be a rejection of such request.
ARTICLE XV.
LESSEE'S EQUIPMENT
------------------
After any repossession of any Leased Property by Lessor or the Agent
(whether or not this Lease has been terminated), the related Lessee, at its
expense and so long as such removal of such trade fixture, personal property or
equipment shall not result in a violation of Applicable Law, shall, within a
reasonable time after such repossession or within ninety (90) days after such
Lessee's receipt of Lessor's written request (whichever shall first occur),
remove all of such Lessee's trade fixtures, personal property and equipment from
such Leased Property (to the extent that the same can be readily removed from
such Leased Property without causing material damage to such Leased Property);
provided, however, that such Lessee shall not remove any Funded Equipment (or
that constitutes a replacement of such property). Any of a Lessee's trade
fixtures, personal property and equipment not so removed by such Lessee within
such period shall be considered abandoned by such Lessee, and title thereto
shall without further act vest in Lessor, and may be appropriated, sold,
destroyed or otherwise disposed of by Lessor without notice to any Lessee and
without obligation to account therefor and the related Lessee will pay Lessor,
upon written demand, all reasonable costs and expenses incurred by Lessor in
removing, storing or disposing of the same and all costs and expenses incurred
by Lessor to repair any damage to such Leased Property caused by such removal.
Each Lessee will immediately repair at its expense all damage to such Leased
Property caused by any such removal (unless such removal is effected by Lessor,
in which event such Lessee shall pay all reasonable costs and expenses incurred
by Lessor for such repairs). Lessor shall have no liability in exercising
Lessor's rights under this Article XV, nor shall Lessor be responsible for any
loss of or damage to any Lessee's personal property and equipment except to the
extent due to Lessor's gross negligence or willful misconduct.
25
ARTICLE XVI.
RIGHT TO PERFORM FOR LESSEE
---------------------------
If any Lessee shall fail to perform or comply with any of its agreements
contained herein, Lessor may perform or comply with such agreement (provided
that, unless there is imminent danger of cancellation or termination of
insurance or forfeiture or material damage to a Leased Property or Lessor's
interest therein, Lessor shall give Concord five (5) Business Days' prior notice
of its intent to so perform or comply), and Lessor shall not thereby be deemed
to have waived any default caused by such failure, and the amount of such
payment and the amount of the expenses of Lessor (including actual and
reasonable attorneys' fees and expenses) incurred in connection with such
payment or the performance of or compliance with such agreement, as the case may
be, shall be deemed Supplemental Rent, payable by the related Lessee to Lessor
within thirty (30) days after written demand therefor.
ARTICLE XVII.
MISCELLANEOUS
-------------
Section 17.1 Reports. To the extent required under Applicable Law and to
the extent it is reasonably practical for a Lessee to do so, such Lessee shall
prepare and file in timely fashion, or, where such filing is required to be made
by Lessor or it is otherwise not reasonably practical for a Lessee to make such
filing, Lessee shall prepare and deliver to Lessor (with a copy to the Agent)
within a reasonable time prior to the date for filing and Lessor shall file, any
material reports with respect to the condition or operation of such Leased
Property that shall be required to be filed with any Governmental Authority.
Section 17.2 Binding Effect; Successors and Assigns; Survival. The terms
and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and the Lessees, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of Lessor,
any Person to whom Lessor may transfer any Leased Property or any interest
therein in accordance with the provisions of the Operative Documents), and inure
to the benefit of their respective permitted successors and assigns, and the
rights granted hereunder to the Agent and the Lenders shall inure (subject to
such conditions as are contained herein) to the benefit of their respective
permitted successors and assigns. Each Lessee hereby acknowledges that Lessor
has assigned all of its right, title and interest to, in and under this Lease to
the Agent and the Lenders pursuant to the Loan Agreement and related Operative
Documents, and that all of Lessor's rights hereunder may be exercised by the
Agent.
Section 17.3 Quiet Enjoyment. Lessor covenants that it will not interfere
in the related Lessee's or any of its permitted sublessees' quiet use and
enjoyment of the Leased Properties in accordance with this Lease during the
Lease Term, so long as no Event of Default has occurred and is continuing. Such
right of quiet use and enjoyment is independent of, and shall not affect,
Lessor's rights otherwise to initiate legal action to enforce the obligations of
the Lessees under this Lease.
Section 17.4 Notices. Unless otherwise specified herein, all notices,
offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be in writing and
shall be deemed to have been given as set forth
26
in Section 8.2 of the Master Agreement. All such notices, offers, acceptances,
rejections, consents, requests, demands or other communications shall be
addressed as follows or to such other address as any of the parties hereto may
designate by written notice:
If to 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
If to Concord Concord EFS, Inc.
or any other Lessee: 1100 Carr Road
Wilmington, Delaware 19809
Attn: Mr. Edward T. Haslam and
J. Richard Buchignani, Esq.
Facsimile: 302-791-8764
and 302-791-8762
If to Agent: SunTrust Bank
6410 Poplar Avenue, Suite 320
Memphis, Tennessee 38119
Attn: Bryan Ford
Facsimile: 901-766-7565
with a copy to: SunTrust Capital Markets, Inc.
303 Peachtree Street, 24th Floor
MC 3951
Atlanta, Georgia 30308
Attn: Peter Kantor
Facsimile: 404-230-1344
If to a Lender, to the address provided in the Master Agreement.
Section 17.5 Severability. Any provision of this Lease that shall be
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, and Lessee shall remain
liable to perform its obligations hereunder except to the extent of such
unenforceability. To the extent permitted by Applicable Law, each Lessee hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section 17.6 Amendment; Complete Agreements. Neither this Lease nor any of
the terms hereof may be terminated, amended, supplemented, waived or modified
orally, except by an instrument in writing signed by Lessor and Concord in
accordance with the provisions of
27
Section 8.4 of the Master Agreement. This Lease, together with the applicable
Lease Supplement and the other Operative Documents, is intended by the parties
as a final expression of their lease agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations and
representations between the parties having been incorporated herein and therein.
No course of prior dealings between the parties or their officers, employees,
agents or Affiliates shall be relevant or admissible to supplement, explain, or
vary any of the terms of this Lease or any other Operative Document. Acceptance
of, or acquiescence in, a course of performance rendered under this or any prior
agreement between the parties or their Affiliates shall not be relevant or
admissible to determine the meaning of any of the terms of this Lease or any
other Operative Document. No representations, undertakings, or agreements have
been made or relied upon in the making of this Lease other than those
specifically set forth in the Operative Documents.
Section 17.7 Construction. This Lease shall not be construed more strictly
against any one party, it being recognized that both of the parties hereto have
contributed substantially and materially to the preparation and negotiation of
this Lease.
Section 17.8 Headings. The Table of Contents and headings of the various
Articles and Sections of this Lease are for convenience of reference only and
shall not modify, define or limit any of the terms or provisions hereof.
Section 17.9 Counterparts. This Lease may be executed by the parties
hereto in separate counterparts, 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 17.10 GOVERNING LAW. THIS LEASE 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,
EXCEPT AS TO MATTERS RELATING TO THE CREATION OF THE LEASEHOLD OR MORTGAGE
ESTATES HEREUNDER, AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO,
WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATES IN WHICH SUCH ESTATES ARE LOCATED.
Section 17.11 Discharge of Lessee's Obligations by its Subsidiaries or
Affiliates. Lessor agrees that performance of any Lessee's obligations hereunder
by one or more of such Lessee's Subsidiaries or Affiliates shall constitute
performance by Lessee of such obligations to the same extent and with the same
effect hereunder as if such obligations were performed by such Lessee, but no
such performance shall excuse any Lessee from any obligation not performed by it
or on its behalf under the Operative Documents.
Section 17.12 Liability of Lessor Limited. Except as otherwise expressly
provided below in this Section 17.12, it is expressly understood and agreed by
and between each Lessee, Lessor and their respective successors and assigns that
nothing herein contained shall be construed as creating any liability of Lessor
or any of its Affiliates or any of their respective officers, directors,
employees, members, managers or agents, individually or personally, for any
failure to perform any covenant, either express or implied, contained herein,
all such liability, if
28
any, being expressly waived by each Lessee and by each and every Person now or
hereafter claiming by, through or under any Lessee, and that, so far as Lessor
or any of its Affiliates or any of their respective officers, directors,
employees, members, managers or agents, individually or personally, is
concerned, each Lessee and any Person claiming by, through or under any Lessee
shall look solely to the right, title and interest of Lessor in and to the
Leased Properties and any proceeds from Lessor's sale or encumbrance thereof
(provided, however, that no Lessee shall be entitled to any double recovery) for
the performance of any obligation under this Lease and under the Operative
Documents and the satisfaction of any liability arising therefrom (provided that
Lessor shall be liable for actual damages resulting from its or any of its
Affiliate's gross negligence, willful misconduct, misrepresentation and breach
of its covenants set forth in Section 5.17 of the Master Agreement, except to
the extent imputed to Lessor by virtue of any Lessee's action or failure to
act).
Section 17.13 Estoppel Certificates. Each party hereto agrees that at any
time and from time to time during the Lease Term, it will promptly, but in no
event later than thirty (30) days after request by the other party hereto,
execute, acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchaser has signed a commitment or letter of
intent to purchase any Leased Property or any part thereof or any Note),
assignee or mortgagee or third party designated by such other party, a
certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as
modified, and identifying the modification agreements); (b) the date to which
Basic Rent has been paid; (c) whether or not there is any existing default by
any Lessee in the payment of Basic Rent or any other sum of money hereunder, and
whether or not there is any other existing default by either party with respect
to which a notice of default has been served, and, if there is any such default,
specifying the nature and extent thereof; (d) whether or not, to the actual
knowledge of the signer, there are any setoffs, defenses or counterclaims
against enforcement of the obligations to be performed hereunder existing in
favor of the party executing such certificate and (e) other items that may be
reasonably requested; provided that no such certificate may be requested unless
the requesting party has a good faith reason for such request.
Section 17.14 No Joint Venture. Any intention to create a joint venture,
partnership or other fiduciary relationship between Lessor and any Lessee is
hereby expressly disclaimed.
Section 17.15 No Accord and Satisfaction. The acceptance by Lessor of any
sums from any Lessee (whether as Basic Rent or otherwise) in amounts which are
less than the amounts due and payable by the Lessees hereunder is not intended,
nor shall be construed, to constitute an accord and satisfaction of any dispute
between Lessor and any Lessee regarding sums due and payable by any Lessee
hereunder, unless Lessor specifically deems it as such in writing.
Section 17.16 No Merger. In no event shall the leasehold interests, estates
or rights of any Lessee hereunder, or of the holder of any Notes secured by a
security interest in this Lease, merge with any interests, estates or rights of
Lessor in or to the Leased Properties, it being understood that such leasehold
interests, estates and rights of each Lessee hereunder, and of the holder of any
Notes secured by a security interest in this Lease, shall be deemed to be
separate and distinct from Lessor's interests, estates and rights in or to the
Leased Properties, notwithstanding that any such interests, estates or rights
shall at any time or times be held by or vested in the same person, corporation
or other entity.
29
Section 17.17 Survival. The obligations of each Lessee to be performed
under this Lease prior to the Lease Termination Date and the obligations of each
Lessee pursuant to Articles III, X, XI, XIII, Sections 14.2, 14.3, 14.4, 14.5,
14.8, Articles XV, and XVI, and Sections 17.10 and 17.12 shall survive the
expiration or termination of this Lease. The extension of any applicable statute
of limitations by Lessor, any Lessee, the Agent or any Indemnitee shall not
affect such survival.
Section 17.18 Chattel Paper. To the extent that this Lease constitutes
chattel paper (as such term is defined in the Uniform Commercial Code in any
applicable jurisdiction), no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the sole
original counterpart, which shall be identified as the original counterpart by
the receipt of the Agent.
Section 17.19 Time of Essence. Time is of the essence of this Lease.
Section 17.20 Recordation of Lease. Each Lessee will, at its expense, cause
each Lease Supplement, or a memorandum of lease in form and substance reasonably
satisfactory to Lessor and such Lessee (if permitted by Applicable Law) to be
recorded in the proper office or offices in the States and the municipalities in
which the Land is located. Lessor agrees to execute and deliver a memorandum of
lease, provided the form and substance thereof is reasonably satisfactory to
Lessor.
Section 17.21 Investment of Security Funds. The parties hereto agree that
any amounts not payable to a Lessee pursuant to any provision of Article VIII, X
or XIV or this Section 17.21 shall be held by the Agent (or Lessor if the Loans
have been fully paid) as security for the obligations of the Lessees under this
Lease and the Master Agreement and of Lessor under the Loan Agreement. At such
time as such amounts are payable to the Lessee, such amounts, net of any amounts
previously applied to the Lessees' obligations hereunder or under the Master
Agreement (which application is hereby agreed to by Lessee), shall be paid to
the related Lessee. Any such amounts which are held by the Agent (or Lessor if
the Loans have been fully paid) pending payment to a Lessee shall until paid to
such Lessee, as provided hereunder or until applied against the Lessees'
obligations herein and under the Master Agreement and distributed as provided in
the Loan Agreement or herein (after the Loan Agreement is no longer in effect)
in connection with any exercise of remedies hereunder, be invested by the Agent
or Lessor, as the case may be, as directed from time to time in writing by
Lessee (provided, however, if an Event of Default has occurred and is continuing
it will be directed by the Agent or, if the Loans have been fully paid, Lessor)
and at the expense and risk of the Lessees, in Permitted Investments. Any gain
(including interest received) realized as the result of any such investment (net
of any fees, commissions and other expenses, if any, incurred in connection with
such investment) shall be applied in the same manner as the principal invested.
Lessee upon demand shall pay to the Agent or Lessor, as appropriate, the amount
of any loss incurred in connection with all such investments and the liquidation
thereof.
Section 17.22 Ground Leases. Each Lessee will, at its expense, timely
perform all of the obligations of Lessor, in its capacity as ground lessee,
under each Ground Lease and, if requested by Lessor shall provide satisfactory
evidence to Lessor of such performance.
30
Section 17.23 Land and Building. If any Building and the Land on which such
Building is located are subject to separate Lease Supplements, at any time that
the related Lessee exercises an option to purchase such Building or such Land,
or to renew this Lease with respect to such Building or such Land, or is
obligated to purchase such Building or such Land as a result of an Event of
Loss, an Event of Taking or an Event of Default, such purchase or renewal shall
be made simultaneously with respect to all of such Building and such Land.
Section 17.24 Joint and Several. Each obligation of each Lessee hereunder
shall be a joint and several obligation of all of the Lessees.
Section 17.25 Construction Land Interests. Notwithstanding any other
provision of this Lease or any of the Operative Documents, with respect to each
Construction Land Interest, to the extent the terms and conditions of the
Construction Agency Agreement are inconsistent with the terms of this Lease, the
Construction Agency Agreement shall control with respect to such Construction
Land Interest and take priority over any other provision hereof or any of the
Operative Documents from the date hereof until the earlier of the Completion
Date for such Leased Property or the Construction Term Expiration Date.
Section 17.26 IDB Documentation. If any Leased Property is subject to an
IDB Lease, this Lease shall be deemed to be a sublease as to such Leased
Property. Each Lessee of such a Leased Property hereby agrees to perform timely
all of its obligations and all obligations of Lessor under all IDB Documentation
related to such Leased Property.
[Signature page follows]
31
IN WITNESS WHEREOF, the undersigned have each caused this Lease Agreement
to be duly executed and delivered and attested by their respective officers
thereunto duly authorized as of the day and year first above written.
Witnessed: CONCORD EFS, INC.,
as Lessee
By: /s/ LINDA MOSES By: /s/ E.T. HASLAM
------------------------ ----------------------------------
Linda Moses Edward T. Haslam
Chief Financial Officer
By: /s/ DEBRA KERR
------------------------
Debra Kerr
S-1 LEASE
AGREEMENT
Witnessed: SUNTRUST EQUITY FUNDING,LLC
as Lessor
By: /s/ ALLISON GODWIN By: /s/ R. TODD SHUTLEY
------------------------ -----------------------------------
Allison Godwin R. Todd Shutley
Senior Vice President and Manager
By: /s/ MATTHEW HUNSUCKER
------------------------
Matthew Hunsucker
S-2 LEASE
AGREEMENT
STATE OF__________________ )
) ss.:
COUNTY OF_________________ )
The foregoing Lease Agreement was acknowledged before me, the undersigned
Notary Public, in the County of ___________, this _____ day of _________, ____,
by R. Todd Shutley, as Senior Vice President and Manager of SunTrust Equity
Funding, LLC, on behalf of such limited liability company.
[Notarial Seal] ----------------------------------
Notary Public
My commission expires:
---------------------
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Agreement was acknowledged before me, the undersigned
Notary Public, in the County of ______________, this _____ day of __________,
__________, by ___________, as _____________, of Concord EFS, Inc., a Delaware
corporation, on behalf of the corporation.
[Notarial Seal] ----------------------------------
Notary Public
My commission expires:
---------------------
N-1 LEASE
AGREEMENT
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
SUNTRUST BANK,
as the Agent
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
S-3 LEASE
AGREEMENT
Recording requested by EXHIBIT A TO
and when recorded mail to: THE LEASE
---------
- -----------------------------
- -----------------------------
- -----------------------------
- -----------------------------
- ----------------------------------------
LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE
THIS LEASE SUPPLEMENT NO. __ (this "Lease Supplement") dated as of [ ],
between SUNTRUST EQUITY FUNDING, LLC, a Delaware limited liability company, as
lessor (the "Lessor"), and [CONCORD EFS, INC., a Delaware corporation,] as
lessee (the "Related Lessee").
WHEREAS Lessor is the owner of the Land described on Schedule I hereto and
wishes to lease the Land together with any Building and other improvements
thereon or which thereafter may be constructed thereon pursuant to the Lease to
Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions; Interpretation. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Amended and Restated
Master Lease Agreement, dated as of June 26, 2003 (as further amended and
supplemented from time to time, the "Lease"), among the Lessees named therein
and Lessor; and the rules of interpretation set forth in Appendix A to the Lease
shall apply to this Lease Supplement.
SECTION 2. The Properties. Attached hereto as Schedule I is the
description of certain Land (the "Subject Property"). Effective upon the
execution and delivery of this Lease Supplement by Lessor and Lessee, such Land,
together with any Building and other improvements thereon or which thereafter
may be constructed thereon shall be subject to the terms and provisions of the
Lease and Lessor hereby grants, conveys, transfers and assigns to the Related
Lessee those interests, rights, titles, estates, powers and privileges provided
for in the Lease with respect to the Subject Property.
SECTION 3. Amendments to Lease with Respect to Subject Property.
Effective upon the execution and delivery of this Lease Supplement by Lessor and
the Related Lessee, the following terms and provisions shall apply to the Lease
with respect to the Subject Property:
[Insert Applicable Sections per Local Law
as contemplated by the Master Agreement]
A-1
SECTION 4. Ratification; Incorporation. Except as specifically modified
hereby, the terms and provisions of the Lease are hereby ratified and confirmed
and remain in full force and effect. The terms of the Lease (as amended by this
Lease Supplement) are by this reference incorporated herein and made a part
hereof.
SECTION 5. Original Lease Supplement. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA, BUT EXCLUDING ALL
OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES OF SUCH STATE, EXCEPT AS TO
MATTERS RELATING TO THE CREATION OF THE LEASEHOLD AND MORTGAGE ESTATES
HEREUNDER, AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO, WHICH
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE IN
WHICH SUCH ESTATES ARE LOCATED.
SECTION 7. Counterpart Execution. This Lease Supplement may be executed
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
A-2
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
Witnessed: SUNTRUST EQUITY FUNDING, LLC,
as Lessor
By:
----------------------------- By:
Name: --------------------------------
Name:
Title:
By:
-----------------------------
Name:
Witnessed: CONCORD EFS, INC.,
as Related Lessee
By: By:
----------------------------- --------------------------------
Name: Name:
Title:
By:
-----------------------------
Name:
S-1
STATE OF____________________ )
) ss.:
COUNTY OF __________________ )
The foregoing Lease Agreement was acknowledged before me, the undersigned
Notary Public, in the County of ___________, this _____ day of _________, ____,
by ________________, as ______________________ of SunTrust Equity Funding, LLC,
on behalf of such limited liability company.
[Notarial Seal]
-----------------------------------
Notary Public
My commission expires:
----------------------
STATE OF____________________ )
) ss.:
COUNTY OF __________________ )
The foregoing Lease Agreement was acknowledged before me, the undersigned
Notary Public, in the County of ______________, this _____ day of __________,
__________, by ___________, as _____________, of [Concord EFS, Inc., a Delaware]
corporation, on behalf of the corporation.
[Notarial Seal]
-----------------------------------
Notary Public
My commission expires:
----------------------
N-1
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as of the date hereof.
SUNTRUST BANK,
as the Agent
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
S-2
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
-7-
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
-8-
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.
-9-
"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
-10-
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
-11-
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
-12-
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
-13-
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.
-14-
"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.
-16-
"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
-17-
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.
-18-
"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.
-19-
"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
-20-
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
-21-
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.
-22-
"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.
-23-
"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.
-24-
"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
-25-
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.
-26-
"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.
-27-
"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.
-28-
"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.
-29-