Exhibit 10.23
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MASTER AGREEMENT
Dated as of September 18, 2001
among
XXXXXX X. XXXXX & CO., L.P.,
as Lessee, Construction Agent and Guarantor,
ATLANTIC FINANCIAL GROUP, LTD.,
(registered to do business in Missouri as Atlantic Financial Group, L.P.)
as Lessor,
SUNTRUST BANK AND
CERTAIN FINANCIAL INSTITUTIONS PARTIES HERETO,
as Lenders,
and
SUNTRUST BANK,
as Agent
and joined in by
THE XXXXX FINANCIAL COMPANIES, L.L.L.P.
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TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS; INTERPRETATION ....................................... 1
ARTICLE II ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS; NATURE OF
TRANSACTION ............................................................ 2
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease ............... 2
SECTION 2.2 Fundings of Purchase Price, Development Costs and
Construction Costs ........................................................ 2
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Facility
Fee; Additional Fees; Bond Trustee's Fee .................................. 4
SECTION 2.4 Nature of Transaction ......................................... 6
SECTION 2.5 Amounts Due Under Lease ....................................... 6
ARTICLE III CONDITIONS PRECEDENT; DOCUMENTS ................................. 7
SECTION 3.1 Conditions to the Obligations of the Funding Parties on
the Closing Date .......................................................... 7
SECTION 3.2 Additional Conditions for the Closing Date ................... 12
SECTION 3.3 Conditions to the Obligations of Lessee ...................... 14
SECTION 3.4 Conditions to the Obligations of the Funding Parties on each
Funding Date ............................................................. 14
SECTION 3.5 Completion Date Conditions ................................... 15
ARTICLE IV REPRESENTATIONS ................................................. 17
SECTION 4.1 Representations of Lessee .................................... 17
SECTION 4.2 Survival of Representations and Effect of Fundings ........... 30
SECTION 4.3 Representations of the Lessor ................................ 31
SECTION 4.4 Representations of each Lender ............................... 33
ARTICLE V COVENANTS OF LESSEE, JFC AND LESSOR .............................. 33
SECTION 5.1 Affirmative Covenants ........................................ 33
SECTION 5.2 Additional Covenants ......................................... 45
SECTION 5.3 Further Assurances ........................................... 52
SECTION 5.4 Additional Required Appraisals ............................... 53
SECTION 5.5 Lessor's Covenants ........................................... 53
ARTICLE VI TRANSFERS BY LESSOR AND LENDERS ................................. 55
SECTION 6.1 Lessor Transfers ............................................. 55
SECTION 6.2 Lender Transfers ............................................. 55
ARTICLE VII INDEMNIFICATION ................................................ 56
SECTION 7.1 General Indemnification ...................................... 56
SECTION 7.2 Environmental Indemnity ...................................... 58
SECTION 7.3 Proceedings in Respect of Claims ............................. 60
SECTION 7.4 General Tax Indemnity ........................................ 61
SECTION 7.5 Increased Costs, etc. ........................................ 67
SECTION 7.6 End of Term Indemnity ........................................ 71
ARTICLE VIII MISCELLANEOUS ................................................. 72
SECTION 8.1 Survival of Agreements ....................................... 72
SECTION 8.2 Notices ...................................................... 72
SECTION 8.3 Counterparts ................................................. 73
SECTION 8.4 Amendments ................................................... 73
SECTION 8.5 Headings, etc. ............................................... 74
SECTION 8.6 Parties in Interest .......................................... 74
SECTION 8.7 GOVERNING LAW ................................................ 74
SECTION 8.8 Expenses ..................................................... 74
SECTION 8.9 Severability ................................................. 75
SECTION 8.10 Liabilities of the Funding Parties .......................... 75
SECTION 8.11 Submission to Jurisdiction; Waivers ......................... 75
SECTION 8.12 Liabilities of the Agent .................................... 76
SECTION 8.13 Role of SunTrust Equitable Securities Corporation ........... 76
APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 2.2 Amount of Each Funding Party's Commitment
SCHEDULE 4.1(a)(i) Indebtedness of Lessee
SCHEDULE 4.1(a)(ii) Subsidiaries
SCHEDULE 4.1(d)(v) Pending Investigations or Inquiries
SCHEDULE 4.1(m) Environmental Matters
SCHEDULE 4.1(u)(i) Leases
SCHEDULE 5.2(a)(i) Existing Permitted Liens
SCHEDULE 5.2(a)(xiv) Existing Options, Etc.
SCHEDULE 5.2(d) Contingent Obligations
SCHEDULE 8.2 Addresses for Notices
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EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C Form of Security Agreement and Assignment
EXHIBIT D-1 Form of Mortgage
EXHIBIT D-2 Form of Deed of Trust
EXHIBIT E [Reserved]
EXHIBIT F Form of Assignment and Acceptance Agreement
EXHIBIT G-1 Form of Opinion of Counsel to Lessee and Guarantor
EXHIBIT G-2 Form of Opinion of Counsel to Lessor
EXHIBIT H Form of Certification of Construction Completion
EXHIBIT I Form of Payment Date Notice
EXHIBIT J Form of Compliance Certificate
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MASTER AGREEMENT
THIS MASTER AGREEMENT, dated as of September 18, 2001 (as it may be
amended, supplemented or otherwise modified from time to time in accordance
with the provisions hereof, this "Master Agreement"), is among XXXXXX X.
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XXXXX & CO., L.P. a Missouri limited partnership, in its capacity as the
Lessee, the "Lessee", in its capacity as the Construction Agent, the
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"Construction Agent," and in its capacity as Guarantor (the "Guarantor"),
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ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership (registered to
do business in Missouri as Atlantic Financial Group, L.P.) (the "Lessor"),
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SUNTRUST BANK, a Georgia banking corporation, and certain financial
institutions parties hereto as lenders (together with any other financial
institution that becomes a party hereto as a lender, collectively referred
to as "Lenders" and individually as a "Lender"), and SUNTRUST BANK, a
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Georgia banking corporation, as agent for the Lenders (in such capacity, the
"Agent"), and joined in by THE XXXXX FINANCIAL COMPANIES, L.L.L.P., a
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Missouri limited liability limited partnership ("JFC").
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Master Agreement,
the Lease, the Loan Agreement and the other Operative Documents, (i)
pursuant to the Bond Lease, the Lessor has acquired a leasehold interest in
the Leased Property identified by the Lessee pursuant to the Bridge Lease
and is subleasing such Leased Property to the Lessee, (ii) the Lessor and
the Lessee desire to restate and amend the Bridge Lease pursuant to which
the Lessee will sublease the Leased Property from the Lessor, (iii) the
Lessee, as Construction Agent for the Lessor, wishes to construct and equip
the Building on the Land for the Lessor and, when completed, such Building
shall be part of the Leased Property under the Lease, (iv) the Lessee, as
agent, wishes to obtain, and the Lessor is willing to provide, funding to
finance the construction and equipping of the Building, and (v) the Lessor
wishes to obtain, and the Lenders are willing to provide, from time to time,
financing of the construction and equipping of the Building.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A
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hereto for all purposes hereof; and the rules of interpretation set forth in
Appendix A hereto shall apply to this Master Agreement.
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ARTICLE II
ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.
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(a) Land. Pursuant to the letter agreement dated December 1, 2000
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between the Lessor and the Lessee, as amended by letter agreements dated
April 12, 2001, May 8, 2001, June 28, 2001 and August 28, 2001, respectively
(collectively the "Bridge Lease"), the Lessor acquired, pursuant to the Bond
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Lease, a leasehold interest in the Leased Property identified by the Lessee
on the Closing Date and subleased the Leased Property to the Lessee, subject
to the Bond Lease. Subject to the terms and conditions of this Master
Agreement and the Bond Lease, (i) the Lessor and the Lessee agree to amend
and restate the Bridge Lease in its entirety pursuant to the Lease, (ii) the
Lessor hereby agrees to sublease the Leased Property to Lessee pursuant to
the Lease, and (iii) the Lessee hereby agrees to sublease the Leased
Property from the Lessor pursuant to the Lease.
(b) Building. Subject to the terms and conditions of this Master
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Agreement and the Bond Lease, from and after the Closing Date, (i) the
Construction Agent agrees, pursuant to the terms of the Construction Agency
Agreement, to acquire, construct and install the Building and Equipment on
the Land for the Lessor prior to the Scheduled Construction Termination
Date, (ii) the Lenders and the Lessor agree to fund the costs of such
construction and installation (and interest and yield thereon), (iii) the
Lessor shall sublease the Building, the Equipment and the Land as part of
the Leased Property to the Lessee pursuant to the Lease, and (iv) the Lessee
shall sublease the Building, the Equipment and the Land from the Lessor
pursuant to the Lease.
SECTION 2.2 Fundings of Purchase Price, Development Costs and
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Construction Costs.
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(a) Initial Funding and Payment of Purchase Price for Development
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Costs on Closing Date. Subject to the terms and conditions of this Master
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Agreement, on the Closing Date, each Lender shall make available to the
Lessor its initial Loan in an amount equal to the product of such Lender's
Commitment Percentage times the acquisition, development, transaction and
closing costs (to the extent permitted to be paid with Advances hereunder)
incurred by the Construction Agent, as agent, through such Closing Date,
which funds the Lessor shall use, together with the Lessor's own funds in an
amount equal to the product of the Lessor's Commitment Percentage times the
acquisition, development, transaction and closing costs (to the extent
permitted to be paid with Advances hereunder) incurred by the Construction
Agent, as agent, through such Closing Date, to pay to the Construction Agent
the amount of such acquisition, development, transaction and closing costs,
and, subject to the Bond Lease, the Lessor shall sublease the Leased
Property to the Lessee, and the Lessee shall sublease the Leased Property
from the Lessor, pursuant to the Lease.
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(b) Subsequent Fundings and Payments of Construction Costs during
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Construction Term. Subject to the terms and conditions of this Master
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Agreement on each Funding Date following the Closing Date until the
Construction Term Expiration Date (i) each Lender shall make available to
the Lessor a Loan in an amount equal to the product of such Lender's
Commitment Percentage times the amount of the Funding requested by the
Construction Agent for such Funding Date, which funds the Lessor hereby
directs each Lender to pay over to the Construction Agent as set forth in
paragraph (d), and (ii) the Lessor shall pay over to the Construction Agent
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its own funds (which shall constitute a part of, and an increase in, the
Lessor's Invested Amount) in an amount equal to the product of the Lessor's
Commitment Percentage times the amount of the Funding requested by the
Construction Agent for such Funding Date.
(c) Aggregate Limits on Funded Amounts. The aggregate amount that
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the Funding Parties shall be committed to provide as Funded Amounts under
this Master Agreement and the Loan Agreement shall not exceed the lesser of
(x) the costs of acquisition and construction of the Leased Property and the
development, transaction, closing and financing costs (to the extent
permitted to be paid with Advances hereunder), or (y) $24,000,000 in the
aggregate. The aggregate amount that any Funding Party shall be committed to
fund under this Master Agreement and the Loan Agreement shall not exceed the
lesser of (i) such Funding Party's Commitment and (ii) such Funding Party's
Commitment Percentage of the aggregate Fundings requested under this Master
Agreement.
(d) Notice, Time and Place of Fundings. With respect to each
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Funding, the Lessee or the Construction Agent, as the case may be, shall
give the Lessor and the Agent an irrevocable prior written notice not later
than 11:00 a.m., Atlanta, Georgia time, at least three (3) Business Days
prior to the Closing Date or other Funding Date, as the case may be,
pursuant, in each case, to a Funding Request in the form of Exhibit A (a
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"Funding Request"), specifying the Closing Date or subsequent Funding Date,
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as the case may be, the amount of Funding requested, whether such Funding
shall be a LIBOR Advance or a Base Rate Advance or a combination thereof and
the Rent Period(s) therefor. At the election of the Lessee, Funding may
occur within thirty (30) days of payment of an invoice by the Lessee or the
Construction Agent, provided that there shall be no more than two (2)
Fundings during any month. All documents and instruments required to be
delivered on the Closing Date pursuant to this Master Agreement shall be
delivered at the offices of McGuireWoods LLP, Xxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, or at such other location as may be determined by the
Lessor, the Construction Agent and the Agent. Each Funding shall occur on a
Business Day, and each Advance (other than the final Advance) shall be in an
amount equal to $500,000 or an integral multiple of $100,000 in excess
thereof. All remittances made by any Lender and the Lessor for any Funding
shall be made in immediately available funds by wire transfer to or, as is
directed by, the Construction Agent, not later than 12:00 noon, Atlanta,
Georgia time, on the applicable Funding Date, upon satisfaction or waiver of
the conditions precedent to such Funding set forth in Article III; such
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funds shall (1) in the case of the initial Funding on the Closing Date, be
used to pay development,
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transaction and closing costs related to such Land (to the extent permitted
to be paid with Advances hereunder), and (2) in the case of each subsequent
Funding, be paid to the Construction Agent for the payment or reimbursement
of Construction costs incurred through such Funding Date and not previously
paid or reimbursed.
(e) Deemed Representation for Each Funding. Each Funding Request by
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a Lessee or the Construction Agent shall be deemed a reaffirmation of the
Lessee's indemnity obligations in favor of the Indemnitees under the
Operative Documents and a representation and warranty to the Lessor, the
Agent and the Lenders that on the proposed Closing Date or Funding Date, as
the case may be, (i) the amount of the Funding requested represents amounts
owing in respect of the acquisition, development, transaction and closing
costs (to the extent permitted to be paid with Advances hereunder) in
respect of the Leased Property (in the case of the initial Funding) or
amounts that are then due to third parties in respect of the Construction,
or amounts paid by the Construction Agent to third parties in respect of the
Construction for which the Construction Agent has not previously been
reimbursed by a Funding (in the case of any Funding), (ii) no Event of
Default or Potential Event of Default exists, and (iii) the representations
and warranties of the Lessee and JFC set forth in Section 4.1 are true and
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correct in all material respects as though made on and as of such Funding
Date, except to the extent such representations or warranties relate solely
to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such
earlier date.
(f) Not Joint Obligations. Notwithstanding anything to the contrary
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set forth herein or in the other Operative Documents, each Lender's and the
Lessor's Commitments shall be several, and not joint. In no event shall any
Funding Party be obligated to fund an amount in excess of such Funding
Party's Commitment Percentage of any Funding or to fund amounts in the
aggregate in excess of such Funding Party's Commitment.
(g) Non-Pro Rata Fundings. Notwithstanding anything to the contrary
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set forth in this Master Agreement, at the Agent's option, Fundings may be
made by drawing on the Lessor's Commitment until such Commitment is fully
funded before drawing on the Lenders' Commitments. In such event, when the
Lessor's Commitment is fully funded, the Lenders will fund, on a pro rata
basis as among themselves, 100% of the amount of the Fundings thereafter. In
no event shall any Funding Party have any obligation to fund any amount
hereunder in excess of the amount of such Funding Party's Commitment.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Facility
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Fee; Additional Fees; Bond Trustee's Fee.
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(a) The Lessor's Invested Amount outstanding from time to time
shall accrue yield ("Yield") at the Lessor Rate, computed using the actual
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number of days elapsed and a 360 day year. If all or a portion of the
principal amount of or yield on the Lessor's Invested Amount shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), such
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overdue amount shall, without limiting the rights of the Lessor under the
Lease, to the maximum extent permitted by law, accrue yield at the Overdue
Rate, from the date of nonpayment until paid in full (both before and after
judgment).
(b) Each Lender's Funded Amount outstanding from time to time shall
accrue interest as provided in the Loan Agreement.
(c) During the Construction Term, in lieu of the payment of accrued
interest, on each Payment Date, each Lender's Funded Amount in respect of
the Construction Land Interest shall automatically be increased by the
amount of interest accrued and unpaid on the Loans pursuant to the Loan
Agreement during the Rent Period ending immediately prior to such Payment
Date (except to the extent that at any time such increase would cause such
Lender's Funded Amount to exceed such Lender's Commitment, in which event
the Lessee shall pay such excess amount to such Lender in immediately
available funds on such Payment Date). Similarly, in lieu of the payment of
accrued Yield, on each Payment Date, the Lessor's Invested Amount in respect
of the Construction Land Interest shall automatically be increased by the
amount of Yield accrued on the Lessor's Invested Amount in respect of the
Leased Property during the Rent Period ending immediately prior to such
Payment Date (except to the extent that at any time such increase would
cause the Lessor's Invested Amount to exceed the Lessor's Commitment, in
which event the Lessee shall pay such excess amount to the Lessor in
immediately available funds on such Payment Date). Such increases in Funded
Amounts shall occur without any disbursement of funds by the Funding
Parties.
(d) Three (3) Business Days prior to the last day of each Rent
Period, the Lessee, as Construction Agent, shall deliver to the Lessor and
the Agent a notice substantially in the form of Exhibit I (each, a "Payment
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Date Notice"), appropriately completed, specifying the allocation of the
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Funded Amounts related to such Rent Period to LIBOR Advances and Base Rate
Advances and the Rent Periods therefor, provided that no such allocation
shall be in an amount less than $500,000. Each such Payment Date Notice
shall be irrevocable. If no such notice is given, the Funded Amounts shall
be allocated to a LIBOR Advance with a Rent Period of three (3) months.
(e) The Lessee hereby agrees to pay to each Funding Party a
facility fee for each day from the Closing Date until the Lease Termination
Date equal to (i) 0.125% per annum times (ii) the amount of such Funding
Party's Commitment on such day, times (iii) 1/360. Such facility fee shall
be payable in arrears on each Quarterly Payment Date. During the
Construction Term, in lieu of payment of the facility fee on each Quarterly
Payment Date, each Lender's Funded Amount shall automatically be increased
by the amount of the facility fee accrued during the three months
immediately prior to such Quarterly Payment Date.
(f) In addition to the facility fee referenced in subparagraph (e)
above, the Lessee hereby agrees to pay on the Closing Date the structuring
fee and the Lender up-front fees set forth in the Term Sheet. The Lessee
hereby further agrees to pay on the Closing Date and
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annually thereafter until the Lease Termination Date the Agent's fees and
the Lessor's fees set forth in the Term Sheet (the structuring fee, the
Lender up-front fees, the Agent's fees and the Lessor's fees, as set forth
in the Term Sheet, being hereinafter collectively referred to as the
"Additional Fees"). During the Construction Term, the proceeds of Advances
may be used to pay the Additional Fees (which fees shall be included in the
Construction Budget); thereafter, all such fees shall be payable by the
Lessee.
(g) In accordance with that certain letter agreement by and between
the Lessee and the Bond Trustee dated June 26, 2001, the Lessee hereby
agrees to pay to the Bond Trustee an annual trustee's fee in an amount not
to exceed $4,000.00, commencing on the Closing Date and continuing
thereafter on each anniversary of the Closing Date until the Lease
Termination Date.
SECTION 2.4 Nature of Transaction. With respect to the Leased Property,
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it is the intent of the Lessee and the Funding Parties that, (i) for
accounting purposes, the Lease shall be treated as an operating lease, and
(ii) for federal, state and local tax purposes and for bankruptcy,
commercial and regulatory law and all other purposes, the Lease shall be
treated as the repayment and security provisions of a loan by the Lessor to
the Lessee, that the Lessee shall be treated as the legal and beneficial
owner entitled to any and all benefits of ownership of such Leased Property
and that all payments of Basic Rent during the Lease Term shall be treated
as payments of interest and, if applicable, principal. The Lessee and each
Funding Party agree to file tax returns consistent with such intent.
Nevertheless, the Lessee acknowledges and agrees that no Funding Party or
any other Person has made any representations or warranties concerning the
tax, financial, accounting or legal characteristics or treatment of the
Operative Documents and that the Lessee has obtained and relied solely upon
the advice of its own tax, accounting and legal advisors concerning the
Operative Documents and the accounting, tax, financial and legal
consequences of the transactions contemplated therein.
SECTION 2.5 Amounts Due Under Lease. With respect to the Leased
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Property, anything else to the contrary notwithstanding, it is the intention
of the Lessee and the Funding Parties that: (i) subject to clauses (ii) and
(iii) below, the amount and timing of Basic Rent due and payable from time
to time from the Lessee under the Lease shall be equal to the aggregate
payments due and payable with respect to interest on the Loans and Yield on
the Lessor's Invested Amounts on each Payment Date; (ii) if the Lessee
elects the Purchase Option or becomes obligated to purchase such Leased
Property under the Lease, the Funded Amounts, all interest and Yield thereon
and all other obligations of the Lessee owing to the Funding Parties, shall
be paid in full by the Lessee, (iii) if the Lessee properly elects the
Remarketing Option, the principal amount of, and accrued interest on, the A
Loans in respect of the Leased Property will be paid out of the Recourse
Deficiency Amount, and the Lessee shall only be required to pay to the
Lenders in respect of the principal amount of the B Loans and to the Lessor
in respect of the Lessor's Invested Amounts, the proceeds of the sale of the
Leased Property in accordance with Section 14.6 of the Lease; and (iv) upon
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an Event of Default resulting in an acceleration of the
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Lessee's obligation to purchase the Leased Property under the Lease, the
amounts then due and payable by the Lessee under the Lease shall include all
amounts necessary to pay in full the Loans, and accrued interest thereon,
the Lessor's Invested Amounts and accrued Yield thereon and all other
obligations of the Lessee owing to the Funding Parties pursuant to the
Operative Documents.
ARTICLE III
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties on the
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Closing Date. The obligations of the Lessor and each Lender to carry out
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their respective obligations under Article II of this Master Agreement to be
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performed on the Closing Date shall be subject to the fulfillment to the
satisfaction of, or waiver by, each such party hereto (acting directly or
through its counsel) on or prior to the Closing Date of the following
conditions precedent, provided that the obligations of any Funding Party
shall not be subject to any conditions contained in this Section 3.1 which
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are required to be performed by such Funding Party:
(a) Documents. The following documents shall have been executed and
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delivered by the respective parties thereto:
(i) Bond Lease. Counterparts of the Bond Lease and a
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memorandum thereof, duly executed by the Issuer and the Lessor and,
in the case of the memorandum, in recordable form, shall have been
delivered to the Agent.
(ii) Assignment of Bonds. The Bonds shall have been assigned
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to the Agent by the Lessee, as evidenced by an executed assignment
satisfactory in form and substance to the Agent and the Funding
Parties, and the Bonds shall have been registered in the name of
the Agent on the bond registration books required to be maintained
by the Bond Trustee pursuant to the Trust Indenture.
(iii) Bond Deed of Trust. Counterparts of the Bond Deed of Trust,
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duly executed by the Issuer and in recordable form, shall have been
delivered to the Agent.
(iv) Trust Indenture. Counterparts of the Trust Indenture, duly
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executed by the Issuer and the Bond Trustee shall have been delivered
to the Agent.
(v) Approval of Bond Documents. The Lessee shall have
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delivered, or shall have caused to be delivered, to the Lessor and
the Agent a certified copy of the Ordinance adopted by the Council
of the County of St. Louis, Missouri, authorizing the issuance of
the Bonds by the Issuer and approving the execution and delivery of
the Bond Documents by the Issuer.
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(vi) Consent and Estoppel Agreement. The Lessee shall have
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delivered, or shall have caused to be delivered, to the Agent a
consent and estoppel agreement executed by the Issuer and in a form
reasonably acceptable to the Agent.
(vii) Lease Supplement. Counterparts of the Lease Supplement,
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duly executed by the Lessee and the Lessor and in recordable form,
shall have been delivered to each Funding Party, and the original,
chattel paper copy of the Lease Supplement shall have been
delivered to the Agent.
(viii) Mortgage or Deed of Trust and Assignment of Lease and
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Rents. Counterparts of the Mortgage or Deed of Trust, as the case
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may be, (substantially in the form of Exhibit D-1 or D-2, as the
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case may be, attached hereto), duly executed by the Lessor and in
recordable form, shall have been delivered to the Agent (which
Mortgage or Deed of Trust, as the case may be, shall secure all of
the debt to the Agent) and the Assignment of Lease and Rents
(substantially in the form of Exhibit B attached hereto) in
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recordable form, duly executed by the Lessor, shall have been
delivered to the Agent by the Lessor.
(ix) Security Agreement and Assignment. Counterparts of the
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Security Agreement and Assignment (substantially in the form of
Exhibit C attached hereto), duly executed by the Construction
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Agent, with an acknowledgment and consent thereto satisfactory to
the Lessor and the Agent duly executed by the General Contractor,
the Architect and the vendor of the Equipment (the "Vendor"), as
applicable, and complete copies of the Construction Contract, the
Architect's Agreement, any agreement related to the acquisition
and/or installation of the Equipment certified by the Construction
Agent and all other Construction Documents and payment and
performance bonds, shall have been delivered to the Lessor and the
Agent.
(x) Survey. The Lessee shall have delivered, or shall have
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caused to be delivered, to the Lessor and the Agent, at such
Lessee's expense, an accurate survey of the Land certified to the
Lessor and the Agent in a form reasonably satisfactory to the
Lessor and the Agent and showing no state of facts unsatisfactory
to the Lessor or the Agent and prepared within ninety (90) days of
the Closing Date (or such other time period agreed to by the Lessor
and the Agent) by a Person reasonably satisfactory to the Lessor
and the Agent. Such survey shall (A) be acceptable to the Title
Insurance Company for the purpose of providing extended coverage to
the Lessor and a lender's comprehensive endorsement to the Agent,
(B) show no encroachments on such Land by structures owned by
others, and no encroachments from any part of such Leased Property
onto any land owned by others, and (C) disclose no state of facts
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reasonably objectionable to the Lessor, the Agent or the Title
Insurance Company, and be reasonably acceptable to each such
Person.
(xi) Title and Title Insurance. The Lessor shall receive from
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the Title Insurance Company an ALTA Leasehold Owner's Policy of
Title Insurance issued by the Title Insurance Company and the Agent
shall receive from the Title Insurance Company an ALTA Leasehold
Mortgagee's Policy of Title Insurance issued by the Title Insurance
Company, in each case, in the amount of the projected cost of
acquisition and construction of the Leased Property, reasonably
acceptable in form and substance to the Lessor and the Agent,
respectively (collectively, the "Title Policy"). The Title Policy
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shall be dated as of the Closing Date, and, to the extent permitted
under Applicable Law, shall include such affirmative endorsements
and other coverages as the Lessor or the Agent shall reasonably
request.
(xii) Appraisal. Each Funding Party shall have received a
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report of the Appraiser (an "Appraisal"), paid for by the Lessee,
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which shall meet the requirements of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, shall be satisfactory
to such Funding Party and shall state in a manner satisfactory to
such Funding Party the estimated "as vacant" value of the Land and
any Building and Equipment to be acquired, constructed and/or
installed thereon. Such Appraisal must show that the "as vacant"
value of the Leased Property determined as if the Building had
already been completed and Equipment installed in accordance with
the Plans and Specifications and by excluding from such value the
amount of assessments on the Leased Property) is at least 45% of
the total cost of the Leased Property, including the trade
fixtures, equipment and personal property utilized in connection
with the Leased Property and all other costs to be funded by the
Funding Parties.
(xiii) Environmental Audit and Reliance Letter. The Lessor and
---------------------------------------
the Agent shall have received an Environmental Audit for the Leased
Property, which shall be conducted in accordance with ASTM
standards and shall not include a recommendation for further
investigation and is otherwise satisfactory to the Lessor and the
Agent. The firm that prepared the Environmental Audit for such
Leased Property shall have delivered to the Lessor and the Agent a
letter in form and substance satisfactory to the Lessor and the
Agent stating that the Lessor, the Agent and the Lenders may rely
upon such firm's Environmental Audit of the Leased Property,
it being understood that the Lessor's and the Agent's acceptance of
-------------------
any such Environmental Audit shall not release or impair the
Lessee's obligations under the Operative Documents with respect to
any environmental liabilities relating to the Leased Property.
-9-
(xiv) Evidence of Insurance. The Lessor and the Agent shall
---------------------
have received from the Lessee certificates of insurance evidencing
compliance with the provisions of Article VIII of the Lease
(including the naming of the Lessor, the Agent and the Lenders as
additional insureds or loss payee with respect to such insurance,
as their interests may appear), in form and substance reasonably
satisfactory to the Lessor and the Agent.
(xv) Officer's Certificates of Lessee and JFC. Each of the
----------------------------------------
Agent and the Lessor shall have received an Officer's Certificate
of each of the Lessee and JFC stating that, to the best of such
officer's knowledge, (A) each and every representation and warranty
of the Lessee and JFC contained in the Operative Documents is true
and correct in all material respects on and as of the Closing Date
as though made on and as of the Closing Date, except to the extent
such representations or warranties relate solely to an earlier
date, in which case such representations and warranties were true
and correct in all material respects on and as of such earlier
date; (B) no Event of Default, Potential Event of Default or
Construction Force Majeure Event has occurred and is continuing;
(C) each Operative Document to which the Lessee and JFC is a party
is in full force and effect with respect to it; and (D) no event
that could reasonably be expected to have a Material Adverse Effect
has occurred since June 30, 2001.
(xvi) UCC Financing Statement; Recording Fees; Transfer Taxes.
-------------------------------------------------------
Each Funding Party shall have received satisfactory evidence of (A)
the execution and delivery to the Agent of a UCC-1 and, if required
by applicable law, UCC-2 financing statement to be filed with the
Secretary of State of the applicable State (or other appropriate
filing office) and the county where the Land is located,
respectively, and such other Uniform Commercial Code financing
statements as any Funding Party deems necessary or desirable in
order to perfect such Funding Party's interests and (B) the payment
of all recording and filing fees and transfer, stamp and other
taxes with respect to any recordings or filings made of the Bond
Lease (or memorandum thereof), the Bond Deed of Trust, the Lease,
the Lease Supplement, the Mortgage and the Assignment of Lease and
Rents.
(xvii) Officer's Certificate of Lessor. The Agent shall have
-------------------------------
received an Officer's Certificate of the Lessor stating that, to
the best of such officer's knowledge, (A) each and every
representation and warranty of the Lessor contained in the
Operative Documents is true and correct in all material respects on
and as of the Closing Date as though made on and as of the Closing
Date, except to the extent such representations or warranties
relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in
all material respects on and as of such earlier date; (B) no Event
of Default or Potential Event of Default has occurred and is
continuing; (C) each
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Operative Document to which the Lessor is a party is in full force
and effect with respect to it; and (D) no event that could have a
Material Adverse Effect has occurred since the date of the most
recent financial statements of the Lessor to be delivered or
required to the Agent.
(xviii) Good Standing Certificates. The Agent shall have received
--------------------------
good standing certificates for the Lessor and the Lessee from the
appropriate offices of the state where the Land is located.
(b) Litigation. No action or proceeding shall have been instituted
----------
or, to the knowledge of any Funding Party, threatened nor shall any
governmental action, suit, proceeding or investigation be instituted or
threatened before any Governmental Authority, nor shall any order, judgment
or decree have been issued or proposed to be issued by any Governmental
Authority, to set aside, restrain, enjoin or prevent the performance of this
Master Agreement or any transaction contemplated hereby or by any other
Operative Document or which is reasonably likely to materially adversely
affect the Leased Property or any transaction contemplated by the Operative
Documents or which could reasonably be expected to result in a Material
Adverse Effect.
(c) Legality. In the opinion of such Funding Party or its counsel,
--------
the transactions contemplated by the Operative Documents shall not violate
any Applicable Law, and no change shall have occurred or been proposed in
Applicable Law that would make it illegal for such Funding Party to
participate in any of the transactions contemplated by the Operative
Documents.
(d) No Events. (i) No Event of Default, Potential Event of Default,
---------
Event of Loss or Event of Taking relating to the Leased Property shall have
occurred and be continuing, (ii) no action shall be pending or threatened by
a Governmental Authority to initiate a Condemnation or an Event of Taking,
and (iii) there shall not have occurred any event that could reasonably be
expected to have a Material Adverse Effect since June 30, 2001.
(e) Representations. Each representation and warranty of the
---------------
parties hereto or to any other Operative Document contained herein or in any
other Operative Document shall be true and correct in all material respects
as though made on and as of the Closing Date, except to the extent such
representations or warranties relate solely to an earlier date, in which
case such representations and warranties shall have been true and correct in
all material respects on and as of such earlier date.
(f) Cutoff Date. No Funding Date shall occur after the Funding
-----------
Termination Date.
(g) Transaction Expenses. The Lessee shall have paid the transaction
--------------------
costs then accrued and invoiced which the Lessee has agreed to pay pursuant
to Section 8.8.
-----------
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SECTION 3.2 Additional Conditions for the Closing Date. The obligations
------------------------------------------
of the Lessor and each Lender to carry out their respective obligations
under Article II of this Master Agreement to be performed on the Closing
----------
Date shall be subject to the satisfaction of, or waiver by, each such party
hereto (acting directly or through its counsel) on or prior to the Closing
Date of the following conditions precedent in addition to those set forth in
Section 3.1, provided that the obligations of any Funding Party shall not be
-----------
subject to any conditions contained in this Section 3.2 which are required
-----------
to be performed by such Funding Party:
(i) Loan Agreement; Guaranty. Counterparts of the Loan
------------------------
Agreement, duly executed by the Lessor, the Agent and each Lender
shall have been delivered to each of the Lessor and the Agent. The
A Notes and the B Notes, duly executed by the Lessor, shall have
been delivered to the Agent. The Guaranty, duly executed by the
Guarantor, shall have been delivered to the Agent.
(ii) Master Agreement. Counterparts of this Master Agreement,
----------------
duly executed by the parties hereto, shall have been delivered to
each of the parties hereto.
(iii) Construction Agency Agreement. Counterparts of the
-----------------------------
Construction Agency Agreement, duly executed by the parties thereto
shall have been delivered to each of the parties hereto.
(iv) Lease. Counterparts of the Lease, duly executed by the
-----
Lessee and the Lessor shall have been delivered to each Funding
Party, and the original, chattel paper copy of the Lease shall have
been delivered to the Agent.
(v) Bond Documents. Counterparts of the Bond Documents, duly
--------------
executed by the Issuer, the Bond Trustee and the Lessor, as the case
may be, shall have been delivered to the Agent.
(vi) Lessee's and JFC's Resolutions and Incumbency
---------------------------------------------
Certificate, etc. Each of the Agent and the Lessor shall have
----------------
received (w) a certificate of the Lessee's General Partner
attaching and certifying as of the Closing Date as to (A) the
resolution of the limited partners of the Lessee, if required by
the Lessee's Partnership Agreement, duly authorizing the execution,
delivery and performance by the Lessee of each Operative Document
to which it is or will be a party, (B) the Lessee's Partnership
Agreement as in effect as of the Closing Date (which includes all
amendments thereto) and (C) the Lessee's partnership certificate,
as in effect as of the Closing Date (which includes all amendments
thereto), certified within thirty (30) days prior to the Closing
Date by the Secretary of State of the state of its organization;
(x) good standing certificates for the Lessee dated within thirty
(30) days prior to the Closing Date from the appropriate offices of
the State of the Lessee's organization and principal place of
business; (y) a certificate of
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the Secretary or an Assistant Secretary of the Lessee's General
Partner, attaching and certifying as of the Closing Date as to (A)
the Board of Directors' (or appropriate committee's) resolution
duly authorizing the execution, delivery and performance by it, as
general partner of the Lessee, of each Operative Document to which
the Lessee is or will be a party, (B) the incumbency and signatures
of persons authorized to execute and deliver such documents on its
behalf, (C) the articles or certificate of incorporation of the
Lessee's General Partner, certified within thirty (30) days prior
to the Closing Date by the Secretary of State of the state of its
incorporation and (D) its by-laws; and (z) good standing
certificates for the Lessee's General Partner dated within thirty
(30) days prior to the Closing Date from the appropriate offices of
the State of incorporation and principal place of business of the
Lessee's General Partner. Each of the Agent and the Lessor shall
have received (w) a certificate of JFC's Managing Partner attaching
and certifying as of the Closing Date, as to (A) the resolution or
consent of the limited partners of JFC, if and to the extent (if
any) required by JFC's Partnership Agreement, duly authorizing the
execution, delivery and performance by JFC of each Operative
Document to which it is or will be a party, (B) JFC's Partnership
Agreement as in effect as of the Closing Date (which includes all
amendments thereto) and (C) JFC's partnership certificate, as in
effect as of the Closing Date (which includes all amendments
thereto), certified within thirty (30) days prior to the Closing
Date by the Secretary of State of the state of its organization;
(x) good standing certificates for JFC dated within thirty (30)
days prior to the Closing Date from the appropriate offices of the
State of JFC's organization and principal place of business; (y) a
certificate of the Managing Partner of JFC, attaching and
certifying as of the Closing Date as to the incumbency and
signatures of persons authorized to execute and deliver such
documents on its behalf.
(vii) Opinions of Counsel. The opinion of counsel to the
-------------------
Lessee and JFC and the Guarantor, dated the Closing Date,
substantially in the form set forth in Exhibit G-1 attached hereto,
-----------
and containing such other matters as the parties to whom it is
addressed shall reasonably request, shall have been delivered and
addressed to each of the Lessor, the Agent and the Lenders. The
opinion of counsel to the Lessor, dated the Closing Date,
substantially in the form set forth in Exhibit G-2 attached hereto,
-----------
and containing such other matters as the parties to whom it is
addressed shall reasonably request, shall have been delivered to
each of the Agent and the Lenders and, with respect to the opinion
of the Lessor's counsel, the Lessee.
(viii) Good Standing Certificate. The Agent and the Lessee
-------------------------
shall have received a good standing certificate for the Lessor from
the appropriate offices of the State of Texas, dated within thirty
(30) days prior to the Closing Date.
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(ix) Lessor's Resolutions and Incumbency Certificate, etc.
----------------------------------------------------
Each of the Agent and the Lessee shall have received (w) a
certificate of the Lessor's General Partner as of the Closing Date,
attaching and certifying as to (A) the resolution of the partners
of Lessor, if required, duly authorizing the execution , delivery
and performance by Lessor of each Operative Document to which it is
or will be a party, (B) the Lessor's Partnership Agreement and all
amendments thereto, (C) the Lessor's partnership certificate and
all amendments thereto, certified as of a recent date by the
Secretary of State of the state of its organization, (x) good
standing certificates for the Lessor on the Closing Date from the
appropriate offices of the State of the Lessor's organization and
principal place of business, (y) a certificate of the Secretary or
an Assistant Secretary of the Lessor's General Partner on the
Closing Date, attaching and certifying as to (A) the Board of
Directors' (or appropriate committee's) resolution duly authorizing
the execution, delivery and performance by it, as general partner
of the Lessor, of each Operative Document to which the Lessor is or
will be a party, (B) the incumbency and signatures of persons
authorized to execute and deliver such documents on its behalf, (C)
its articles or certificate of incorporation, certified as of a
recent date by the Secretary of State of the state of its
incorporation and (D) its by-laws, and (z) good standing
certificates for the Lessor's General Partner on the Closing Date
from the appropriate offices of the State of incorporation and
principal place of business of the Lessor's General Partner.
SECTION 3.3 Conditions to the Obligations of Lessee. The obligations of
---------------------------------------
the Lessee to sublease the Leased Property from the Lessor are subject to
the fulfillment on the Closing Date to the satisfaction of, or waiver by,
the Lessee, of the following conditions precedent:
(a) General Conditions. The conditions set forth in Sections 3.1
------------------ ------------
and 3.2 that require fulfillment by the Lessor or the Lenders shall have
-------
been satisfied, including the execution and delivery of the Operative
Documents to be executed by the Lessor or the Lenders in connection with the
Leased Property.
(b) Legality. In the opinion of the Lessee or its counsel, the
--------
transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in
Applicable Law that would make it illegal for the Lessee to participate in
any of the transactions contemplated by the Operative Documents.
SECTION 3.4 Conditions to the Obligations of the Funding Parties on
-------------------------------------------------------
each Funding Date. The obligations of the Lessor and each Lender to carry
-----------------
out their respective obligations under Article II of this Master Agreement
----------
to be performed on each Funding Date shall be subject to the fulfillment to
the satisfaction of, or waiver by, each such party hereto (acting directly
or through their respective counsel) on or prior to each such Funding Date
of the following conditions precedent, provided that the obligations of any
Funding Party shall not be subject to
-14-
any conditions contained in this Section 3.4 which are required to be
-----------
performed by such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have received
---------------
from the Construction Agent or the Lessee the Funding Request therefor pursuant
to Section 2.2(d).
--------------
(b) Conditions Fulfilled. As of such Funding Date, the conditions set
--------------------
forth in Section 3.1(d) shall have been satisfied.
--------------
(c) Representations. As of such Funding Date, both before and after
---------------
giving effect to the Funding requested by the Construction Agent or the
Lessee on such date, the representations and warranties that the
Construction Agent, the Lessee or JFC is deemed to make pursuant to
Section 2.2(e) shall be true and correct on and as of such Funding Date as
--------------
though made on and as of such Funding Date.
(d) No Stop Notice or Filed Mechanic's Lien. As of such Funding
---------------------------------------
Date, and as to any Funded Amount requested on such Funding Date, (i) none
of the Lessor, the Agent or any Lender has received (with respect to the
Leased Property) a notice to withhold Loan funds that has not been
discharged by the Lessee or the Construction Agent, and (ii) no mechanic's
lien or materialman's lien has been filed against such Leased Property that
has not been discharged by the Lessee, bonded over in a manner reasonably
satisfactory to the Agent or insured over by the Title Insurance Company.
(e) Lease Supplement. If the Funding relates to a Building that
----------------
will be leased under a Lease Supplement separate from the Lease Supplement
for the Land, the original of such separate Lease Supplement, duly executed
by the Lessee and the Lessor and in recordable form, shall have been
delivered to the Agent.
SECTION 3.5 Completion Date Conditions. The occurrence of the
--------------------------
Completion Date with respect to the Leased Property shall be subject to the
fulfillment to the satisfaction of, or waiver by, each party hereto (acting
directly or through its counsel) of the following conditions precedent:
(a) Title Policy Endorsements; Architect's Certificate. The
--------------------------------------------------
Construction Agent shall have furnished to each Funding Party (1) the
following endorsements to the related Title Policy (each of which shall be
subject to no exceptions other than Permitted Encumbrances approved by the
Agent in writing and such other exceptions created in the public records
after the Closing Date if and to the extent approved by the Agent in
writing): a date-down endorsement (redating and confirming the coverage
provided under the Title Policy and each endorsement thereto) and a "Form 9"
endorsement (if available in the applicable jurisdiction), in each case,
effective as of a date not earlier than the date of completion of the
Construction, and (2) a statement of the Architect dated at or about the
Completion Date, in form and substance reasonably satisfactory to the Agent,
the Lessor and the Lenders, and stating that (i) the Building
-15-
has been completed substantially in accordance with the Plans and
Specifications therefor, and the Leased Property is ready for occupancy,
(ii) such Plans and Specifications comply in all material respects with all
Applicable Laws in effect at such time, and (iii) to the best of the
Architect's knowledge, the Leased Property, as so completed, complies in all
material respects with all Applicable Laws in effect at such time. The
Construction Agent shall also deliver to the Agent true and complete copies
of: (A) an "as built" or "record" set of the Plans and Specifications, (B) a
plat of survey of the Leased Property "as built" to a standard reasonably
acceptable to the Agent showing all easements, paving, driveways, fences and
exterior improvements, and (C) copies of a certificate or certificates of
occupancy for the Leased Property or other legally equivalent permission to
occupy the Leased Property.
(b) Construction Completion. The Construction shall have been
-----------------------
completed substantially in accordance with the Plans and Specifications and
all Applicable Laws, and the Leased Property shall be ready for occupancy
and operation. All fixtures, equipment and other property contemplated under
the Plans and Specifications to be incorporated into or installed in the
Leased Property shall have been substantially incorporated or installed,
free and clear of all Liens except for Permitted Encumbrances.
(c) Construction Agent Certification. The Construction Agent shall
--------------------------------
have furnished the Lessor, the Agent and each Lender with a certification of
the Construction Agent (substantially in the form of Exhibit H) that:
---------
(i) all amounts owing to third parties for the Construction
have been paid in full (other than contingent obligations for which
the Construction Agent has made adequate reserves), and no
litigation or proceedings are pending, or, to the best of the
Construction Agent's knowledge, are threatened, against the Leased
Property, the Construction Agent or the Lessee which could
reasonably be expected to have a Material Adverse Effect;
(ii) all material consents, licenses and permits and other
governmental authorizations or approvals required for such
Construction and operation of the Leased Property have been
obtained and are in full force and effect;
(iii) the Leased Property has available all services of public
facilities and other utilities necessary for the use and operation
of the Leased Property for its intended purposes including, without
limitation, adequate water, gas and electrical supply, storm and
sanitary sewerage facilities, telephone, other required public
utilities and means of access between the Building and public
highways for pedestrians and motor vehicles;
(iv) all material agreements, easements and other rights,
public or private, which are necessary to permit the lawful use and
operation of the Leased Property as the Lessee intends to use the
Leased Property under the Lease and
-16-
which are necessary to permit the lawful intended use and operation
of all then intended utilities, driveways, roads and other means of
egress and ingress to and from the same have been obtained and are
in full force and effect and neither the Construction Agent nor the
Lessee has any knowledge of any pending modification or
cancellation of any of the same, and the use of the Leased Property
does not depend on any variance, special exception or other
municipal approval, permit or consent that has not been obtained
and is in full force and effect for its continuing legal use;
(v) all of the requirements and conditions set forth in
Section 3.5(b) hereof have been completed and fulfilled with
--------------
respect to the Leased Property and the Construction; and
(vi) to the best of the Construction Agent's knowledge, the
Leased Property is in compliance in all material respects with all
applicable zoning laws and regulations.
(d) Bond Document Certifications. The Construction Agent shall have
----------------------------
provided to the Issuer and the Bond Trustee such evidence of completion of
construction as may be required pursuant to the Bond Documents, if any,
including, without limitation, any certifications or schedules required
pursuant thereto.
ARTICLE IV
REPRESENTATIONS
SECTION 4.1 Representations of Lessee. Effective as of the date of
-------------------------
execution hereof, as of the Closing Date and as of each Funding Date, the
Lessee represents and warrants to each of the other parties hereto as
follows:
(a) Existence; Compliance with Law.
------------------------------
(i) The sole general partner of the Lessee is EDJ Holding
Company, Inc., a Missouri corporation (the "General Partner"), and
the sole limited partner of the Lessee is JFC (the General Partner
and JFC being referred to individually as a "Partner" and
collectively as the "Partners.") At the date hereof, the Lessee has
Indebtedness for Money Borrowed of the types and in the amounts set
forth in Schedule 4.1(a)(i) hereto. A complete and correct summary
of all such Indebtedness is attached hereto as Schedule 4.1(a)(i),
------------------
(ii) Schedule 4.1(a)(ii) hereto correctly sets forth as to each
-------------------
Subsidiary of the Lessee its name and the jurisdiction of its
formation, if a partnership, or incorporation, if a corporation. The
Lessee has no Restricted Subsidiaries. Each of the Lessee and each of
its Subsidiaries, the General Partner and JFC (x) is duly
-17-
organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (y) has the power and
authority, and the legal right, and all governmental licenses,
authorizations, consents and approvals, to own and operate its
assets and property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged or
proposes to be engaged, and (z) is duly qualified as a foreign
corporation or partnership and in good standing (A) in the
jurisdiction in which the Leased Property is located and (B) under
the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business or nature of
its activities requires such qualification. All of the issued and
outstanding general or limited partnership interests, or capital
stock, as the case may be, of the Lessee, the Lessee's General
Partner and each Subsidiary is validly issued and outstanding, is
fully paid and nonassessable and is owned, beneficially and of
record, in the case of stock, by the Lessee or another Subsidiary,
and in the case of general or limited partnership interests in the
Lessee, by the Lessee's General Partner and the limited partners of
the Lessee, free of any Lien, option, claim, warrant or rights of
others. All of the issued and outstanding are partnership interests
of JFC are validly issued and outstanding, are fully paid and
nonassessable and are owned beneficially and of record, by JFC's
partners, free of any Lien, option, claim, warrant or rights of
others.
(b) Corporate Power; Authorization; Enforceable Obligations. The
-------------------------------------------------------
Lessee, the General Partner and JFC each have the power and authority, and
the legal right, and all governmental licenses, authorizations, consents and
approvals, to execute, deliver and perform this Master Agreement and the
other Operative Documents to which each such Person is a party and has taken
all necessary action to authorize the Transaction on the terms and
conditions of this Master Agreement and to authorize the execution, delivery
and performance of this Master Agreement and the other Operative Documents
to which each such Person is a party. No approval, consent, exemption or
authorization of, notice to or filing with or other action by or in respect
of, any Governmental Authority, Business Association or any other Person is
necessary or required in connection with the Transaction (except
construction permits, licenses and approvals that are not yet required), the
use of the proceeds thereof or with the execution, delivery, performance,
validity or enforceability of this Master Agreement or the other Operative
Documents to which each such Person is a party. This Master Agreement has
been, and each other Operative Document to which each such Person is a party
will be, duly executed and delivered on behalf of the Lessee and JFC. This
Master Agreement constitutes, and each other Operative Documents to which
the Lessee or JFC is a party when executed and delivered will constitute, a
legal, valid and binding obligation of the Lessee and JFC, as applicable,
enforceable against the Lessee and JFC, as applicable, in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law).
-18-
(c) No Legal Bar; No Default, Compliance with Other Instruments, etc.
----------------------------------------------------------------
Neither the Lessee nor JFC is in violation of any term of its
partnership agreement or certificate of partnership and none of its or their
Subsidiaries is in violation of any term of its partnership agreement,
certificate of partnership, charter or by-laws, as the case may be. No
Potential Event of Default or Event of Default has occurred and is
continuing. Neither the Lessee, JFC nor any of its or their Subsidiaries is
in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in (i) any evidence of
Indebtedness, or any agreement or instrument under or pursuant to which any
evidence of Indebtedness has been issued (or any documents related thereto),
(ii) any other agreement or instrument (including, without limitation, any
issued and outstanding preferred stock), or Contractual Obligation to which
any of them is a party or by which any of them is bound or any of its or
their properties is affected, or (iii) any Requirement of Law by which any
of them is bound or any of their properties are affected. Neither the
Lessee, JFC nor any of its or their Subsidiaries has defaulted in, or has
failed to make at the time contemplated, payment of any dividends or
partnership distributions, or any mandatory redemption payments on any
preferred stock or any principal of, or premium or interest on, any
Indebtedness for Money Borrowed. The execution, delivery and performance of
this Master Agreement and the other Operative Documents, the Transaction and
the use of the proceeds thereof does or will not (v) conflict with or
violate the partnership agreement, certificate of partnership, charter or
by-laws, as the case may be, of the Lessee, JFC or any of its or their
Subsidiaries and will not violate any Requirement of Law or Contractual
Obligation of the Lessee, JFC or any of its or their Subsidiaries, (w)
conflict with or result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, any evidence of Indebtedness
or other agreement or instrument referred to in this Section 4.1(c), (x)
result in or require the creation or imposition of any Lien of any nature
whatsoever upon any of its or their respective properties, revenues or
assets of the Lessee, JFC or any of its or their Subsidiaries under the
terms of any such evidence of Indebtedness, other agreement or instrument,
Requirement of Law or Contractual Obligation, other than the Operative
Documents, (y) require the consent of or other action by any Business
Association, any trustee, any creditor of, any lessor to, or any investor
in, the Lessee, JFC or any of its or their Subsidiaries, or (z) violate any
order, injunction, writ or decree of any Governmental Authority or any
Business Association to which the Lessee, JFC or any of its or their
Subsidiaries is subject.
(d) Litigation, Etc.
---------------
(i) There are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Lessee and JFC
(after due inquiry), threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority, arbitrator or
Business Association, against the Lessee, JFC or its or their
Subsidiaries or any of their respective properties, individually or
in the aggregate:
-19-
(x) which purport to affect or pertain to this Master
Agreement or any other Operative Document, or any of the
transactions contemplated hereby or thereby; or
(y) as to which there exists a reasonable possibility of
an adverse determination against any of them or, which
determination could reasonably be expected to have a Material
Adverse Effect.
(ii) No injunction, writ, temporary restraining order or any
order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Master Agreement or any
other Operative Document, or directing that the transactions
provided for herein or therein not be consummated as herein or
therein provided.
(iii) Any liability that may result from any action at law,
suit in equity or other proceeding or investigation (whether or not
purportedly on behalf of the Lessee, JFC or any of its or their
Subsidiaries) in any court or by or before any other Governmental
Authority or any arbitrator, or before any Business Association,
against or affecting, or that (to the best knowledge of the Lessee
and JFC) is threatened against, the Lessee, JFC or any of its or
their Subsidiaries or any of their respective properties is
adequately reserved against on the books of the Lessee, JFC or such
Subsidiary, as the case may be.
(iv) Neither the Lessee, JFC nor any of its or their
Subsidiaries is in default in any respect which could individually
or in the aggregate have a Material Adverse Effect on the Lessee or
JFC with respect to any order, writ, injunction, judgment or decree
of any court or other Governmental Authority, or with respect to
the award of any arbitrator, or with respect to the order or
direction of any Business Association.
(v) Attached hereto as Schedule 4.1(d)(v) is a true and
------------------
correct summary of all pending investigations or inquiries (other
than routine "blue sheet" inquires) by the SEC or any Business
Association or State Securities Commission to which the Lessee or
any of its Subsidiaries has been asked to respond by delivery of
documents or testimony.
(e) Taxes. All Federal, state and other tax returns and information
-----
returns of the Lessee, JFC and each of its or their Subsidiaries required by
law to be filed have been duly filed, and all Federal, state and other
taxes, assessments, fees and other governmental charges upon the Lessee, JFC
or any of its or their Subsidiaries or upon any of their respective
properties or assets that are due and payable have been paid. No extensions
of time for the assessment of
-20-
deficiencies have been granted by the Lessee, JFC or any of its or their
Subsidiaries. There are no Liens on any properties or assets of the Lessee,
JFC or any of its or their Subsidiaries imposed or arising as a result of
the delinquent payment or nonpayment of any such tax, assessment, fee or
other governmental charge. All Federal income tax returns of each of the
Lessee and JFC filed for periods ended on or prior to December 31, 1996 have
been accepted by the IRS as filed. No Federal income tax and information
returns filed by any of the Lessee, JFC or the Subsidiaries of the Lessee or
JFC have ever been materially adjusted upon examination by the IRS. The
Lessee, JFC and its or their Subsidiaries which are partnerships have filed
information returns in those states and local jurisdictions in which they
are required to do so, and the Subsidiaries of the Lessee or JFC that are
corporations have filed tax returns with respect to state income taxes or
state taxes measured by income in those states and local jurisdictions in
which they are required to do so. No state information or tax return filed
by the Lessee, JFC or any of its or their Subsidiaries has ever been
materially adjusted upon examination by any state agency. The charges,
accruals and reserves, if any, on the books of the Lessee, JFC and its or
their Subsidiaries in respect of Federal and state income taxes for all
fiscal periods to date are adequate and neither the Lessee nor JFC knows of
any unpaid assessments for additional Federal or state income taxes for any
such fiscal period or of any basis therefor. There are no applicable taxes,
fees or other governmental charges payable in connection with the execution
and delivery of this Master Agreement, the Transaction or any of the other
Operative Documents.
(f) No Margin Regulation Violation. None of the transactions
------------------------------
contemplated by this Master Agreement or any of the other Operative
Documents (including, without limitation, the direct or indirect use of any
of the proceeds from any Funding) will violate or result in a violation of
(i) Sections 7, 10(b) or 15 of the Exchange Act or any regulations
promulgated thereunder or (ii) Regulation U, Regulation T and Regulation X
of the FRB.
(g) ERISA Compliance.
----------------
(i) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or
state law. Each Plan which is intended to qualify under Section
401(a) of the Code has received a favorable determination letter
from the IRS and, to the best knowledge of the Lessee and JFC,
nothing has occurred which would cause the loss of such
qualification. The Lessee, JFC and each ERISA Affiliate has made
all required contributions to any Plan subject to Section 412 of
the Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(ii) There are no pending or, to the best knowledge of the
Lessee and JFC, threatened claims, actions or lawsuits, or action
by any Governmental Authority, with respect to any Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited
-21-
transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or could reasonably be
expected to result in a Material Adverse Effect or that would
subject the Lessee, JFC or any of its or their Subsidiaries to a
tax or penalty on Prohibited Transactions. Neither the Lessee, JFC
nor any of its or their Subsidiaries has contributed to any
employee pension benefit plan to which an employer other than the
Lessee, JFC or one of their Subsidiaries contributed.
(iii) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Lessee, JFC nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability to the PBGC under
Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Lessee, JFC nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243
of ERISA with respect to a Multiemployer Plan; and (v) neither the
Lessee, JFC nor any ERISA Affiliate has engaged in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
(h) Investment Company Act; Other Regulations. None of the Lessee,
-----------------------------------------
JFC, any Person controlling the Lessee or JFC, or any of its or their
Subsidiaries, is an "Investment Company" within the meaning of the
Investment Company Act of 1940, except insofar as such a relationship may
exist with respect to the Lessee by virtue of the following interests: (v)
the Lessee's ownership of a minority interest, as limited partner with no
rights of management or control, in Passport Research Ltd., a Pennsylvania
limited partnership, that is adviser to an openend mutual fund and a
closed-end mutual fund, (w) the Lessee's indirect 18.4% interest in
Community Investment Partners, L.P., indirect 6% interest in Community
Investment Partners II, L.P., and indirect 5.9% interest in Community
Investment Partners III, L.P., LLLP, each of which is a business development
company formed under the Investment Company Act of 1940, (x) the Lessee's
indirect 5.7% interest in Community Investment Partners IV, L.P., LLLP, an
employees' securities company, (y) the Lessee's indirect $500,000 investment
in Oakwood Medical Investors III, L.L.C. and (x) JFC's ownership of 150,000
shares of common stock, in Federated Investors, that is adviser to an
open-end mutual fund and a closed-end mutual fund. Neither the Lessee, JFC
nor any of its or their Subsidiaries is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other
Federal or state statute or regulation limiting its ability to incur
Indebtedness, other than the Net Capital requirements of Section 15 of the
Exchange Act. The Lessee and its Subsidiaries are in compliance with the
requirements of Rule 206(4)-2 promulgated pursuant to the Investment
Advisors Act of 1940.
-22-
(i) Purpose of Fundings. The proceeds of the Fundings shall be used
-------------------
by the Lessee or the Construction Agent for Construction costs for the
Building and for acquisition and installation of the Equipment and for
transaction, closing and financing costs permitted to be paid with Advances
under this Master Agreement.
(j) Disclosure. Neither this Master Agreement (including the
----------
representations, warranties and covenants contained herein and all other
information contained in the Operative Documents) nor any offering
memorandum prepared in connection with the Transaction, nor the reports nor
financial statements referred to in Section 4.1(l) hereof, nor any
certificate, report, statement or other writing furnished or to be furnished
to the Agent by or on behalf of the Lessee, JFC, or any officer, director,
agent or employee of or any counsel to the Lessee or JFC, in connection with
the negotiation of the Operative Documents or the Transaction, nor any other
factual information, including factual information relating to the Lessee,
JFC, its or their Subsidiaries or any of its or their assets or its or their
financial condition or the Leased Property, furnished or to be furnished in
writing to the Agent or any Funding Party, contains or will contain any
untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein or therein
not misleading. There is no fact known to the Partnership that the
Partnership has not disclosed to you in writing that (i) materially
adversely affects or in the future may materially adversely affect the
business, prospects, earnings, properties or condition, financial or other,
of the Lessee, JFC or any of its or their Subsidiaries, or (ii) adversely
affects or in the future may adversely affect the ability of the Lessee or
JFC to perform their respective obligations under this Master Agreement and
the other Operative Documents.
(k) Title to Properties; Leases. The Lessee, JFC and each of their
---------------------------
Subsidiaries have good and valid title to their respective material
properties and assets, including all properties and assets reflected on the
respective consolidated statements of financial condition of the Lessee and
its Subsidiaries and of JFC and its Subsidiaries, each dated as of December
31, 1999 and referred to in clauses (i) and (iii) of Section 4.1(l) hereof,
as well as to property purported to have been acquired since such date
(except property disposed of since said date in the ordinary course of
business), and as of the Closing Date, there are no Liens on any such
properties and assets other than Permitted Liens and Liens securing the bank
borrowings listed in Schedule 4.1(a)(i) on the Lessee's securities held for
sale, on its interest in customers' securities and on government or agency
securities held by it as permitted by paragraphs (iv) and (vi) of the
definition of Restricted Investments. Each of the Lessee, JFC and their
Subsidiaries has the right to, and does, enjoy peaceful and undisturbed
possession under all leases to which it is a party or under which it is
leasing property. All such leases are valid, subsisting and in full force
and effect, none of such leases is in default and no event has occurred and
is continuing, and no condition exists, that, after notice or the passage of
time or both, could become a default under any such lease
-23-
(l) Financial Statements and Other Information; Financial Condition.
---------------------------------------------------------------
The Lessee and JFC has heretofore furnished to the Agent and each
Funding Party copies of: (i) JFC's Annual Report to the SEC on Form 10- K
for the fiscal year ended December 31, 2000 (the "Form 10-K") containing a
---------
consolidated statement of financial condition of JFC and its Subsidiaries as
of December 31, 2000 and December 31, 1999 and related consolidated
statements of income, changes in financial position or cash flows (as
applicable) and changes in partnership capital for the fiscal years then
ended and the fiscal year ended December 31, 1999, together with the
auditor's report thereon of Xxxxxx Xxxxxxxx LLP, Independent Certified
Public Accountants; (ii) JFC's Quarterly Report on Form 10-Q filed with the
SEC for the quarter ended June 30, 2001 (the "Form 10-Q"; the Form 10-K and
---------
the Form 10-Q are referred to herein as the "SEC Reports"); (iii)
-----------
consolidated statements of financial condition of the Lessee and its
Subsidiaries as of December 31, 2000]and December 31, 1999, and related
statements of income, changes in financial position or cash flows (as
applicable), changes in partnership capital and changes in subordinated
liabilities, of the Lessee and its Subsidiaries for the fiscal years then
ended, together with the auditor's report thereon of Xxxxxx Xxxxxxxx LLP,
Independent Certified Public Accountants; (iv) consolidated statements of
financial condition of the Lessee and its Subsidiaries as of the close of
the fiscal quarter ended June 30, 2001 and related statements of income of
the Lessee and its Subsidiaries for the fiscal quarter then ended (the
financial statements referred to, or contained in any document referred to,
in this clause (iv) and in clause (iii) above being hereinafter called the
"Lessee Financial Statements"); and (v) the Lessee's Broker/Dealer Year 2000
---------------------------
Report on Form BD-Y2K filed with the SEC for June 30, 2001. All financial
statements referred to above, or contained in any document referred to
above, are complete and correct, and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
during the respective periods. The Lessee Financial Statements and the SEC
Reports present fairly the financial position of the Lessee and JFC,
respectively, as of the respective dates of the statements of financial
condition included therein and the results of operations of the Lessee and
JFC, respectively, for the respective periods covered by the consolidated
statements of income and changes in cash flows included therein. Neither the
Lessee, JFC nor any of its or their Subsidiaries has any material
obligations or liabilities, contingent or otherwise, not disclosed by the
consolidated statement of financial condition of the Lessee, JFC and their
Subsidiaries as of December 31, 2000 referred to in clauses (i) or (iii)
above
(m) General Environmental Matters. Except as specifically disclosed
-----------------------------
in Schedule 4.1(m):
---------------
(i) The on-going operations of the Lessee, JFC and each of
their Subsidiaries comply in all material respects with all
Environmental Laws.
(ii) The Lessee, JFC and each of their Subsidiaries have
obtained all licenses, permits, authorizations and registrations
required under any Environmental Law ("Environmental Permits") and
---------------------
necessary for their respective
-24-
ordinary course operations, all such Environmental Permits are in
good standing, and the Lessee, JFC and each of their Subsidiaries
are in compliance with all material terms and conditions of such
Environmental Permits.
(iii) None of the Lessee, JFC any of their Subsidiaries or any
of their respective present properties or operations, is subject to
any outstanding written order from or agreement with any
Governmental Authority, nor subject to (x) any judicial or docketed
administrative proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Material or (y) to the extent that
it could reasonably be expected to have a Material Adverse Effect,
any claim, proceeding or written notice from any Person regarding
any Environmental Law, Environmental Claim or Hazardous Material.
(iv) There are no Hazardous Materials or other conditions or
circumstances existing with respect to any properties of the
Lessee, JFC or any of their Subsidiaries, or arising from
operations prior to the Closing Date, of the Lessee, JFC or any of
their Subsidiaries that would reasonably be expected to give rise
to Environmental Claims which would have a Material Adverse Effect,
and there are no Hazardous Materials or other conditions or
circumstances existing with respect to the Leased Property that
would reasonably be expected to give rise to Environmental Claims.
In addition, (A) neither the Lessee, JFC nor any of their
Subsidiaries has any underground storage tanks (x) that are not
properly registered or permitted under applicable Environmental
Laws, (y) that are leaking or disposing of Hazardous Materials
off-site, or (z) with respect to the Leased Property, for which the
Lessee, JFC or any of their Subsidiaries has not met applicable
federal and state financial responsibility requirements, and (B)
the Lessee, JFC and their Subsidiaries have met all material
notification requirements under applicable Environmental Laws.
(n) Labor Relations. There are no strikes, lockouts or other labor
---------------
disputes against the Lessee, JFC, or any of their Subsidiaries, or, to the
best of the knowledge of the Lessee and JFC, threatened against or affecting
the Lessee, JFC or any of their Subsidiaries, and no significant unfair
labor practice complaint is pending against the Lessee, JFC or any of their
Subsidiaries or, to the best knowledge of the Lessee and JFC, threatened
against any of them before any Governmental Authority.
(o) No Burdensome Restrictions. Neither the Lessee, JFC, nor any of
--------------------------
its or their Subsidiaries is a party to, and none of them nor any of their
properties is bound or affected by, any Contractual Obligation, or is
subject to any order, writ, injunction, judgment, rule, regulation or decree
or other action of any court or other Governmental Authority, or the award
of any arbitrator or any charter or other corporate, partnership or
contractual restriction, that could reasonably be expected to have a
Material Adverse Effect.
-25-
(p) Copyrights, Patents, Trademarks and Licenses, etc. The Lessee,
-------------------------------------------------
JFC and their Subsidiaries own or are licensed or otherwise have the right
to use all of the licenses, registrations, permits, patents, trademarks,
service marks, trade names, copyrights, franchises, authorizations and other
rights that are reasonably necessary for the operation of their respective
businesses as now conducted and as proposed to be conducted, without
conflict with the rights of any other Person. To the best knowledge of the
Lessee and JFC, no slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated
to be employed, by the Lessee, JFC or any of their Subsidiaries infringes
upon any rights held by any other Person. No claim or litigation regarding
any of the foregoing is pending or threatened, and no patent, invention,
device, application, principle or any statute, law, rule, regulation,
standard or code is pending or, to the knowledge of the Lessee and JFC,
proposed, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(q) Insurance. The properties of the Lessee, JFC and their
---------
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Lessee or JFC or any of their Subsidiaries
and are in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and are
similarly situated.
(r) Swap Obligations. Neither the Lessee, JFC nor any of their
----------------
Subsidiaries has incurred any outstanding obligations under any Swap
Contracts, other than Permitted Swap Obligations. The Lessee and JFC have
each undertaken its own independent assessment of its consolidated assets,
liabilities and commitments and has considered appropriate means of
mitigating and managing risks associated with such matters and has not
relied on any swap counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract.
(s) Solvency. Each of the Lessee and JFC is Solvent, and the Lessee
--------
and its Subsidiaries, on a consolidated basis, and JFC and its Subsidiaries,
on a consolidated basis, are Solvent.
(t) Year 2000 Compliance. The Lessee, JFC and their Subsidiaries
--------------------
have conducted a comprehensive review and assessment of its computer
applications, and have made inquiry of their material suppliers, vendors and
customers, with respect to any defect in computer software, data bases,
hardware, controls and peripherals related to the occurrence of the year
2000 or the Year 2000 Problem in connection therewith. Based on the
foregoing review, assessment and inquiry, the Lessee and JFC believe that no
such defect could reasonably be expected to have a Material Adverse Effect.
(u) Business of the Partnership.
---------------------------
(i) The SEC Reports referred to in Section 4.1(l) hereof
contain an accurate general description of the business of the
Lessee, JFC and their
-26-
Subsidiaries, as presently conducted and as presently proposed to
be conducted, and the major properties leased by the Lessee and
JFC. Neither the Lessee, JFC nor any of their Subsidiaries is now
engaged in any material line of business not so disclosed and
neither the Lessee nor JFC owns or leases any significant
properties not so disclosed. Attached hereto as Schedule 4.1(u)(i)
------------------
is a true and correct summary of the leases under which the Lessee
or JFC leases its or their principal offices and equipment from an
Affiliate.
(ii) Any and all liabilities of the Lessee and JFC that could
reasonably be expected to arise out of, or in relation to, the
Lessee's or JFC's ownership, directly or indirectly, of any
interest or interests in limited partnerships or other entities
(including any Affiliates or Subsidiaries of the Lessee or JFC)
under any circumstances, in the aggregate, would not exceed
$15,000,000. All such interests owned by the Lessee or JFC in such
entities are owned indirectly by it, through a series of affiliated
entities, including at least one corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, which corporation is adequately
capitalized and as to which all corporate formalities have been
observed. The corporate integrity of any such corporation has never
been questioned or threatened, nor does there exist any basis for
such a question or threat. Neither the Lessee, JFC nor any
Affiliate of either of them (other than the General Partner,
Conestoga Securities, Inc., a Missouri corporation, LHC, Inc., a
Missouri corporation, Unison Capital Corporation, a Missouri
corporation, Patronus, Inc., a Missouri corporation, CIP
Management, Inc., a Missouri corporation, and Xxxxxx X. Xxxxx & Co.
Canada Holding Co., Inc., a corporation formed under the law of the
Province of Ontario, Canada) is a general partner of any general or
limited partnership.
(v) Stock Exchange Membership, etc. The Lessee is a member
------------------------------
organization in good standing of the Exchange, the American Stock Exchange,
Inc., the Chicago Stock Exchange, Inc., and the NASD. Xxxxxx Xxxxx Limited,
a corporation organized under the laws of the United Kingdom, is a member in
good standing of the London Stock Exchange. Xxxxxx X. Xxxxx Co., an Ontario
limited partnership, is a member organization in good standing of the Toronto
Stock Exchange, Inc. and the Montreal Stock Exchange, Inc.
(w) No Material Adverse Change. Since December 31, 2000, (i) there
--------------------------
has been no material adverse change in the financial condition of the Lessee
and its Subsidiaries taken as a whole, or JFC and its Subsidiaries, taken as
a whole, and (ii) neither the condition, financial or otherwise, business,
earnings, properties or prospects of the Lessee and its Subsidiaries, taken
as a whole, or JFC and its Subsidiaries, taken as a whole, have been
materially adversely affected by any occurrence or development (whether or
not insured against)
-27-
(x) Compliance with Law, etc. The Lessee, JFC, the General Partner
------------------------
and their Subsidiaries each is in compliance in all material respects with
all Requirements of Law to which it is subject and all applicable rules of
the Exchange, the NASD and each other nongovernmental association,
corporation or body having authority over it ("Business Association"), the
--------------------
violation of which, either individually or in the aggregate, might
materially adversely affect its business, prospects, earnings, properties or
condition, financial or other. Neither the execution or delivery of this
Master Agreement or any of the other Operative Documents, nor the
performance of this Agreement or the Notes does or will cause the
Partnership or any of its Subsidiaries to be in violation in any material
respect of any law or ordinance, or any order of general application, rule
or regulation of any Federal, state, county, municipal or other governmental
or public authority or agency, or any order, direction or rule of any
Business Association, having jurisdiction or authority over any of them or
any of their respective properties.
(y) SIPC Assessments. Neither the Lessee nor any Subsidiary is in
----------------
arrears with respect to any assessment made upon the Lessee or any
Subsidiary by SIPC.
(z) Broker-Dealer Registration; Examining Authority. The Lessee is
-----------------------------------------------
registered as a broker-dealer with the SEC under the Exchange Act, and is
also registered as a broker-dealer with the proper authorities, including
State Securities Commissions, of every jurisdiction in which the nature of
its activities makes such registration necessary. The Examining Authority of
the Lessee is the Exchange.
(aa) Stock Exchange Approvals. The Lessee has obtained such
------------------------
consents or approvals of the Examining Authority and of such securities and
commodities exchanges of which the Lessee is a member organization as are
necessary for the due execution, delivery and performance of this Master
Agreement and the other Operative Documents and the consummation of the
transactions contemplated hereby and thereby.
(bb) Governmental Consent, etc. Except for the consents and
-------------------------
approvals referred to in Section 4.1(aa) and the filing with the SEC
pursuant to Appendix D to Rule 15c3- 1, no consent, approval or
authorization of, registration, qualification, designation, declaration or
filing with, or notice to, any Federal, state or local governmental or
public authority or agency (including any State Securities Commission) or
Business Association is required for the valid execution, delivery and
performance of this Master Agreement or any of the other Operative Documents
or the valid consummation of any other transaction contemplated hereby or
thereby.
(cc) Outstanding Securities. All outstanding Securities of the
----------------------
Lessee have been offered, issued, sold and delivered in compliance with, or
in accordance with available exemptions from, all Federal and state laws and
the rules and regulations of all Federal and state governmental or public
authorities and agencies and Business Associations
-28-
(dd) Net Capital Requirements. The Lessee is subject to and in
------------------------
compliance with the Net Capital requirements set forth in Rule 15c3-1 and it
has elected to comply with the Alternative Net Capital Requirement.
(ee) Hazardous Materials - Leased Property.
-------------------------------------
(i) To the best knowledge of the Lessee, except as described
in the Environmental Audit, on the Closing Date, there are no
Hazardous Materials present at, upon, under or within such Leased
Property or released or transported to or from such Leased Property
(except in compliance in all material respects with all Applicable
Law).
(ii) On the Closing Date, no Governmental Actions have been
taken or, to the best knowledge of the Lessee, are in process or
have been threatened, which could reasonably be expected to subject
such Leased Property, any Lender or the Lessor to any Claims or
Liens with respect to such Leased Property under any Environmental
Law which would have a material adverse effect, or would have a
Material Adverse Effect on the Lessor or any Lender.
(iii) The Lessee has, or will obtain on or before the date
required by Applicable Law, all Environmental Permits necessary to
operate the Leased Property, if any, in accordance with
Environmental Laws and is complying with and has at all times
complied with all such Environmental Permits, except to the extent
the failure to obtain such Environmental Permits or to so comply
would not have a Material Adverse Effect.
(iv) Except as set forth in the Environmental Audit or in any
notice subsequently furnished by the Lessee to the Agent and
approved by the Agent in writing prior to the respective times that
the representations and warranties contained herein are made or
deemed made hereunder, no notice, notification, demand, request for
information, citations, summons, complaint or order has been issued
or filed to or with respect to the Lessee, no penalty has been
assessed on the Lessee and no investigation or review is pending
or, to its best knowledge, threatened by any Governmental Authority
or other Person in each case relating to the Leased Property with
respect to any alleged material violation or liability of the
Lessee under any Environmental Law. To the best knowledge of the
Lessee, no material notice, notification, demand, request for
information, citations, summons, complaint or order has been issued
or filed to or with respect to any other Person, no material
penalty has been assessed on any other Person and no investigation
or review is pending or threatened by any Governmental Authority or
other Person relating to the Leased Property with respect to any
alleged material violation or liability under any Environmental Law
by any other Person.
-29-
(v) The Leased Property and each portion thereof are
presently in compliance in all material respects with all
Environmental Laws, and, to the best knowledge of the Lessee, there
are no present or past facts, circumstances, activities, events,
conditions or occurrences regarding the Leased Property (including
without limitation the release or presence of Hazardous Materials)
that could reasonably be anticipated to (A) form the basis of a
material Claim against the Leased Property, any Funding Party or
the Lessee, (B) cause the Leased Property to be subject to any
material restrictions on ownership, occupancy, use or
transferability under any Environmental Law, (C) require the filing
or recording of any notice or restriction relating to the presence
of Hazardous Materials in the real estate records in the county or
other appropriate municipality in which the Leased Property is
located, or (D) prevent or materially interfere with the continued
operation and maintenance of the Leased Property as contemplated by
the Operative Documents.
(ff) Leased Property. The present condition of the Leased Property
---------------
conforms in all material respects with all conditions or requirements of all
existing material permits and approvals issued with respect to the Leased
Property, and the Lessee's future intended use of the Leased Property under
the Lease does not, in any material respect, violate any Applicable Law. To
the best knowledge of the Lessee, no material notices, complaints or orders
of violation or non-compliance have been issued or threatened or
contemplated by any Governmental Authority with respect to the Leased
Property or any present or intended future use thereof. All material
agreements, easements and other rights, public or private, which are
necessary to permit the lawful use and operation of the Leased Property as
the Lessee intends to use such Leased Property under the Lease and which are
necessary to permit the lawful intended use and operation of all presently
intended utilities, driveways, roads and other means of egress and ingress
to and from the same have been, or to the Lessee's best knowledge will be,
obtained and are or will be in full force and effect, and the Lessee has no
knowledge of any pending material modification or cancellation of any of the
same.
(gg) Rights in Respect of the Leased Property. The Lessee is not a
----------------------------------------
party to any contract or agreement to sell any interest in the Leased
Property or any part thereof, other than pursuant to the Operative
Documents.
SECTION 4.2 Survival of Representations and Effect of Fundings.
--------------------------------------------------
(a) Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made in Section 4.1 shall survive delivery of the Operative
-----------
Documents and every Funding and shall remain in effect until all of the
Obligations are fully and irrevocably paid.
(b) Each Funding a Representation. Each Funding accepted by the
-----------------------------
Lessee or the Construction Agent shall be deemed to constitute a representation
and warranty by each Lessee to the effect of Section 4.1.
-----------
-30-
SECTION 4.3 Representations of the Lessor. Effective as of the date of
-----------------------------
execution hereof, as of the Closing Date and as of each Funding Date, in
each case, with respect to the Leased Property, the Lessor represents and
warrants to the Agent, the Lenders and the Lessee as follows:
(a) Securities Act. The interest being acquired or to be acquired
--------------
by the Lessor in such Leased Property is being acquired for its own account,
without any view to the distribution thereof or any interest therein,
provided that the Lessor shall be entitled to assign, convey or transfer its
interest in accordance with Section 6.1.
-----------
(b) Due Organization, etc. The Lessor is a limited partnership duly
---------------------
organized and validly existing in good standing under the laws of Texas and
is duly qualified as a foreign limited partnership and in good standing in
the state in which the Leased Property is located and has full power,
authority and legal right to execute, deliver and perform its obligations
under the Lease, this Master Agreement and each other Operative Document to
which it is or will be a party.
(c) Due Authorization; Enforceability, etc. This Master Agreement
--------------------------------------
and each other Operative Document to which the Lessor is or will be a party
have been or will be duly authorized, executed and delivered by or on behalf
of the Lessor and are, or upon execution and delivery will be, legal, valid
and binding obligations of the Lessor enforceable against it in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting creditors'
rights generally and by general equitable principles.
(d) No Conflict. The execution and delivery by the Lessor of the
-----------
Lease, this Master Agreement and each other Operative Document to which the
Lessor is or will be a party, are not or will not be, and the performance by
the Lessor of its obligations under each will not be, inconsistent with its
Partnership Agreement, do not and will not contravene any Applicable Law
applicable generally to parties providing financing and do not and will not
contravene any provision of, or constitute a default under, any Contractual
Obligation of Lessor, do not and will not require the consent or approval
of, the giving of notice to, the registration with or taking of any action
in respect of or by, any Governmental Authority, except such as have been
obtained, given or accomplished, and the Lessor possesses all requisite
regulatory authority to undertake and perform its obligations under the
Operative Documents.
(e) Litigation. There are no pending or, to the knowledge of the
----------
Lessor, threatened actions or proceedings against the Lessor before any
court, arbitrator or administrative agency with respect to any Operative
Document or that would have a material adverse effect upon the ability of
the Lessor to perform its obligations under this Master Agreement or any
other Operative Documents to which it is or will be a party.
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(f) Lessor Liens. No Lessor Liens (other than those created by the
------------
Operative Documents) exist on the Closing Date on the Leased Property, or
any portion thereof, and the execution, delivery and performance by the
Lessor of this Master Agreement or any other Operative Document to which it
is or will be a party will not subject the Leased Property, or any portion
thereof, to any Lessor Liens (other than those created by the Operative
Documents).
(g) Employee Benefit Plans. The Lessor is not and will not be
----------------------
making its investment hereunder, and is not performing its obligations under
the Operative Documents, with the assets of an "employee benefit plan" (as
defined in Section 3(3) of ERISA), or "plan" (as defined in Section
4975(e)(1)) of the Code.
(h) General Partner. The sole general partner of the Lessor is
---------------
Atlantic Financial Managers, Inc., a Texas corporation.
(i) Financial Information.
---------------------
(A) The unaudited balance sheet of the Lessor as of December
31, 2000 and the related statements of income, partners' capital and cash
flows for the year then ended, copies of which have been delivered to the
Agent and the Lessee, fairly present, in conformity with sound accounting
principles, the financial condition of the Lessor as of such date and the
results of operations and cash flows for such period.
(B) Since December 31, 2000, there has been no event, act,
condition or occurrence having a material adverse effect upon the financial
condition, operations, performance or properties of the Lessor, or the
ability of the Lessor to perform in any material respect its obligations
under the Operative Documents.
(C) The Lessor has no recourse indebtedness, and the Lessor has
not entered into any other transactions, purchases, leases or other
agreements, other than immaterial transactions, purchases, leases and other
agreements entered into by the Lessor in the ordinary course of its
business, in which the Lessor has any liability to the other parties to such
transactions, purchases, leases or other agreements that is in excess of the
Lessor's ownership or other interest in the property subject to such
transactions, purchases, leases or other agreements other than liability for
required fundings, breach of contract, misrepresentation, gross negligence,
willful misconduct, fraud, failure to turn over funds and similar exceptions
to limitations on recourse.
(j) No Offering. The Lessor has not offered the Notes to any Person
-----------
in any manner that would subject the issuance thereof to registration under
the Securities Act or any applicable state securities laws.
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SECTION 4.4 Representations of each Lender. Effective as of the date of
------------------------------
execution hereof, as of the Closing Date and as of each Funding Date, each
Lender represents and warrants to the Lessor and to the Lessee as follows:
(a) Securities Act. The interest being acquired or to be acquired
--------------
by such Lender in the Funded Amounts is being acquired for its own account,
without any view to the distribution thereof or any interest therein,
provided that such Lender shall be entitled to assign, convey or transfer
its interest in accordance with Section 6.2.
-----------
(b) Employee Benefit Plans. Such Lender is not and will not be
----------------------
making its investment hereunder, and is not performing its obligations under
the Operative Documents, with the assets of an "employee benefit plan" (as
defined in Section 3(3) of ERISA), or "plan" (as defined in Section
4975(e)(1)) of the Code.
ARTICLE V
COVENANTS OF LESSEE, JFC AND LESSOR
SECTION 5.1 Affirmative Covenants. Each of the Lessee and JFC covenants
---------------------
and agrees that, it shall do, or cause to be done, the following:
(a) Maintenance of Office. Each of the Lessee and JFC will maintain
---------------------
at its headquarters at 00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, an
office where notices, presentations and demands in respect of this Master
Agreement and the other Operative Documents may be given to and made upon
it; provided, however, that it may, upon 30 days' prior written notice to
-------- -------
the Agent and the Funding Parties, move such office to any other location
within the continental boundaries of the United States. The Lessee hereby
agrees that it will pay, and will save any Lender harmless against liability
for, any stamp or other tax or governmental charge imposed in respect of any
transfer of a Note made at a time when the books for the registration, and
registration of transfer, of Notes are maintained at an office outside the
State of Missouri, to the extent (if any) that such tax or charge exceeds
the amount that would have been payable had said books been maintained in
the State of Missouri, and such obligation of the Lessee shall survive the
payment or prepayment of the Notes and the termination of this Master
Agreement.
(b) ERISA. Neither the Lessee, JFC nor any of their Subsidiaries will
-----
at any time permit any Plan to:
(i) engage in any Prohibited Transaction;
(ii) incur any "accumulated funding deficiency" as such term is
defined in Section 302 of ERISA, whether or not waived; or
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(iii) terminate under circumstances which could result in the
imposition of a Lien on any property of the Lessee, JFC or any of
their Subsidiaries pursuant to Section 4068 of ERISA.
The Lessee and JFC shall, and shall cause each of their ERISA
Affiliates to: (x) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state
law; (y) cause each Plan which is qualified under Section 401(a) of the Code
to maintain such qualification; and (z) make all required contributions to
any Plan subject to Section 412 of the Code.
(c) Existence. The Lessee, subject to Rule 326(b) of the Exchange,
---------
and JFC shall each take and fulfill, or cause to be taken and fulfilled, all
actions and conditions necessary to preserve and keep in full force and
effect its existence, franchises, permits, licenses, rights and privileges
as a partnership in good standing and the existence, franchises, permits,
licenses, rights and privileges as a partnership or a corporation, as the
case may be, in good standing, of each of their Subsidiaries, will preserve
or renew all of its patents, trademarks, trade names and service marks and
goodwill and will not liquidate or dissolve, or permit any of their
Subsidiaries to liquidate or dissolve, unless in the case of a Subsidiary
its liquidation or dissolution would not have a Material Adverse Effect, and
shall take and fulfill, or cause to be taken and fulfilled, all actions and
conditions necessary to qualify, and to preserve and keep in full force and
effect its qualification, and that of each of their Subsidiaries, to do
business as a foreign partnership or corporation in each jurisdiction in
which the character of the properties owned (or held under lease) by the
Lessee or JFC or any of their Subsidiaries, respectively, or the nature of
their respective activities makes such qualification necessary.
(d) General Maintenance of Properties and Business, Etc. Each of the
---------------------------------------------------
Lessee, JFC and each of their Subsidiaries, will:
(i) maintain its property in good condition and repair and
make all needful and proper renewals, repairs, replacements,
additions, betterments and improvements thereof and thereto, so
that the business carried on in connection therewith may be
conducted properly and efficiently at all times;
(ii) maintain, with financially sound insurers of nationally
recognized stature and responsibility, insurance with respect to
its property and business of such a nature, with such terms and in
such amounts as a prudent person would maintain with respect to
similar properties and a similar business, and, in any event, will
maintain insurance on all its property of a character usually
insured by corporations or partnerships engaged in the same or a
similar business similarly situated against loss or damage of the
kinds and in the amounts customarily insured against and for by
such corporations or partnerships and carry, with such insurers in
customary amounts, such other insurance, including public liability
-34-
insurance, as is usually carried by corporations or partnerships
engaged in the same or a similar business similarly situated;
provided, however, that (x) all insurance maintained pursuant to
-------- -------
this subsection (ii) will be carried in amounts sufficient to
prevent the Lessee, JFC or any of their Subsidiaries from incurring
liability as a coinsurer under law or the terms of the applicable
policy or policies, and (y) neither the Lessee nor any of its
Subsidiaries shall self-insure, except that each may self-insure as
to the types of risks against which it presently selfinsures, so
long as such self-insured risks, in the aggregate, do not exceed at
any time 10% of the assets of the Lessee as of the end of the then
most recent fiscal quarter of such Person; and, provided further,
----------------
that for the purposes of clause (y) of the preceding proviso only,
the term "assets" of the Lessee shall not be deemed to include
assets located at any branch office of the Lessee other than the
portion of assets located at any such branch office carried on the
books of the Lessee at a value in excess of $500,000. The Lessee
and any of its Subsidiaries may selfinsure both as to types of
risks other than those, and amount of risk in excess of that,
permitted by the preceding sentence if, and only if, whichever of
them undertakes such additional self-insurance shall establish and
maintain on its books adequate reserves therefor; and provided
--------
further, that so long as the Lessee or any of its Subsidiaries
-------
self-insures any risk, the Lessee shall deliver annually to the
Agent and each Funding Party an Officer's Certificate demonstrating
that all necessary and adequate reserves have been maintained with
respect thereto. Notwithstanding the foregoing, the Lessee shall
not self-insure any risks with respect to the Leased Property
except as expressly permitted by the Required Lenders. Subject to
the conditions set forth in this subsection (ii), the Lessee or any
of its Subsidiaries may form a Subsidiary to undertake any activity
that the Lessee or any of its Subsidiaries may undertake itself
under this subsection (ii);
(iii) keep proper books of record and accounts with respect to
all of its business transactions in accordance with GAAP in effect
in the United States, which books of record and accounts shall, in
all material respects, be true, correct and complete;
(iv) set aside on its books from its earnings for each fiscal
year, in reasonably adequate amounts, all proper accruals and
reserves that, in accordance with GAAP, should be set aside from
such earnings in connection with its business, including reserves
for litigation, depreciation, obsolescence and/or amortization, and
accruals for taxes based on or measured by income or profits and
for all other taxes; and
(v) at all times maintain and keep in full force and effect
its rights and franchises material to its business and its
memberships in such Business Associations as are necessary to
enable it to engage (in the case of those entities
-35-
presently so engaged) in the business of a securities broker,
dealer or underwriter, or financial services institution and take
all actions necessary to comply with the rules and regulations, as
in effect from time to time, of such Business Associations and each
other association, corporation or governmental authority to which
it is subject.
(e) Compliance with Law. Neither the Lessee, JFC nor any of their
-------------------
Subsidiaries will (i) violate or fail to comply with any laws, ordinances,
governmental rules or regulations (including, without limitation,
environmental and safety laws and regulations and the Net Capital
requirements of Section 15 of the Exchange Act and the rules and regulations
promulgated thereunder) or any rules and regulations of any Business
Association to which it is or may become subject, or (ii) fail to obtain or
maintain any patents, trademarks, service marks, trade names, copyrights,
design patents, licenses, permits, franchises or other governmental
authorizations necessary to the operation and ownership of its property or
to the conduct of its business, if the violation or failure with respect to
clause (i) or (ii) of this Section 5.1(e) could reasonably be expected to
have a Material Adverse Effect.
(f) Payment of Taxes and Claims.
---------------------------
(i) Each of the Lessee, JFC and each of their Subsidiaries will
pay and discharge promptly:
(x) all taxes, assessments and governmental charges and
levies imposed upon it, its income or profits or any of its
properties, before the same shall become delinquent, and
(y) all lawful claims of materialmen, mechanics, carriers,
warehousemen, landlords and other similar persons for labor,
materials, supplies and rentals that, if unpaid, might by law
become a Lien upon its property; provided, however, except as
-------- -------
otherwise provided in the Operative Documents that none of the
foregoing need be paid while the same is being contested in
good faith by appropriate proceedings diligently conducted so
long as adequate book reserves shall have been established in
accordance with GAAP with respect thereto, the owning Person's
title to the particular property is not materially adversely
affected and its right to use the particular property in the
ordinary course of business is not materially interfered with.
(ii) The Lessee, JFC and each of their Subsidiaries will pay
all obligations not specified in subsection (i) of this Section
5.1(f) when due, except such as may be contested in good faith by
appropriate proceedings; provided that, no such Person shall be
-------------
permitted to contest any such obligation if such contest
-36-
could reasonably be expected to have a Material Adverse Effect or
is otherwise prohibited or limited under the Operative Documents.
(g) Transactions with Affiliates. Neither the Lessee, JFC nor any
----------------------------
of their Subsidiaries will enter into any transaction (including, without
limitation, the purchase, sale or exchange of any property, the rendering of
any services, and the payment of management fees) with any Affiliate,
except, in each case, in the ordinary course of, and pursuant to the
reasonable requirements of, the business of the Lessee or such Subsidiary,
as the case may be, and in good faith and upon commercially reasonable terms
that are no less favorable to the Lessee, JFC or such Subsidiary, as the
case may be, than would obtain in a comparable arm's length transaction with
a Person not an Affiliate; provided, however, that (x) the Lessee may
-------- -------
provide managerial services and overhead to Consolidated Subsidiaries, to
EDJ Leasing Co., L.P., a Missouri limited partnership and to Xxxxx National
Savings & Loan, F.A., a federal savings and loan, to the extent the value of
such services and overhead (valued at the higher of cost or fair market
value) provided to EDJ Leasing Co. and to Xxxxx National Savings & Loan,
F.A. do not in the aggregate exceed $250,000 per fiscal year and (y) the
Lessee may pay management fees to JFC in an aggregate amount not exceeding
the sum of (A) the reasonable salaries of the general partners of JFC and
(B) the amounts paid by JFC to its limited partners representing guaranteed
payments of 7-1/2% per annum on the principal amounts of their respective
capital contributions to JFC.
(h) Sale of Receivables. Neither the Lessee nor any Subsidiary will
-------------------
sell with recourse, or sell for less than the greater of the face value or
the fair market value thereof, any of its accounts, bills or notes
receivable, except as required pursuant to Rule 326(b) of the Exchange.
(i) Notice of Certain Events and Conditions. The Lessee and JFC
---------------------------------------
will promptly, and in any event within 5 days, give written notice to the
Agent and each Lender of: (x) any event of acceleration or event of default
(or other event or condition that, after notice or the passage of time or
both, could become an event of acceleration or event of default) under this
Master Agreement and the other Operative Documents or under any evidence of
Indebtedness of the Lessee or of any Subsidiary of which the Lessee or JFC
has knowledge, or under any indenture, mortgage or other agreement relating
to any such evidence of Indebtedness or under any material lease or any
preferred stock, for or in respect of which the Lessee or any Subsidiary may
be liable, (y) the giving by the Agent or any Lender, or by the holder of
any other evidence of Indebtedness or other Security of the Lessee, JFC or
any of its or their Subsidiaries of notice with respect to a claimed event
of acceleration or event of default or any other such condition or event, or
(z) any notice given to the SEC pursuant to subsection (e)(1) of Rule 15c3-1
or any notice of noncompliance with Rule 15c3-1.
(j) Tax Consolidation. Neither the Lessee, JFC nor any of their
-----------------
Subsidiaries shall file or consent to the filing of a consolidated tax return
with any Person, unless required to
-37-
do so by applicable law; provided, however, that to the extent any such law
-------- -------
requiring such tax consolidation permits those entities joining in a
consolidated tax return discretion as to the sharing of or apportionment of
any tax benefits or liabilities, or in any other respect, the Lessee, JFC
and each of their Subsidiaries, or any of them, as the case may be, shall
exercise such discretion only in accordance with the directions of, or
restrictions imposed by, the Required Lenders, and such subsequent
directions or restrictions as the Required Lenders may impose.
(k) Inspection. Each of the Lessee and JFC will permit the Agent
----------
and any Funding Party, by its representatives, agents or attorneys, to
examine all books of account, records, reports and other papers of the
Lessee, JFC and each of their Subsidiaries (including, without limitation,
copies of all income and other tax returns, all FOCUS Reports and
documentation related thereto), to make copies and take extracts from any
thereof, to discuss the affairs, finances and accounts of the Lessee, JFC
and each of their Subsidiaries with their respective officers and
independent certified public accountants (and by this provision the Lessee
(as to itself and all its Subsidiaries) and JFC (as to itself and all of its
Subsidiaries) hereby authorizes such accountants to discuss with the Agent
and any Funding Party, the finances and accounts of the Lessee, JFC and each
of their Subsidiaries) and to examine the properties of the Lessee, JFC and
each of their Subsidiaries, each such inspection shall be made at such
reasonable times, and as often as reasonably requested (unless an Event of
Default shall have occurred), and shall be at the expense of the Lessee, and
all expenses in connection with any such inspection incurred by the Lessee,
JFC or any of their Subsidiaries, any officers and employees of any thereof
and the independent certified public accountants of any thereof shall be
expenses payable by the Lessee or JFC, as the case may be, and shall not be
expenses of the Person making the inspection.
(l) Intentionally Omitted.
---------------------
(m) Guaranties of Affiliate and Subsidiary Obligations. Any other
--------------------------------------------------
provision hereof notwithstanding, the Lessee will not cause or permit
Indebtedness permitted by Section 5.2(j) hereof and attributable to any
guaranty or guaranties by it in respect of any obligations of, or otherwise
in support of, any of its Affiliates and/or Subsidiaries to at any time
exceed 10% of Partnership Capital in the aggregate.
(n) Nature of Lessee's Business. The principal business of the
---------------------------
Lessee and its Subsidiaries, taken on a consolidated basis, shall not
include any activities or enterprises not customarily engaged in by
corporations or partnerships in the retail investment brokerage business;
provided, however, that this Section 5.1(n) shall not be construed to
-------- -------
prevent the Lessee or any Subsidiary from ceasing to conduct any currently
existing business activities of any thereof if the Lessee shall continue to
conduct such activities and enterprises as are customarily engaged in by
corporations or partnerships in the retail investment brokerage business.
The business of the Lessee and the Subsidiaries shall continue to be
conducted solely in the United States, except that: (A) the Lessee may
conduct business in Canada, Australia, New Zealand and
-38-
any nation which is a member of the European Economic Community (a
"Permitted Nation") directly or through a Subsidiary or Affiliate, and (B)
----------------
the Lessee itself may directly conduct business in countries other than a
Permitted Nation provided that the aggregate amount of the assets of the
Lessee and its Subsidiaries on a consolidated basis used in business in
countries other than a Permitted Nation shall at no time exceed ten percent
(10%) of Partnership Capital, as would be reflected on a consolidated
balance sheet of the Lessee at such time prepared in accordance with
generally accepted accounting principles as in effect at such time; and
provided further that the Lessee may not simultaneously conduct business in
----------------
any individual country outside the United States, directly itself and
indirectly through a Subsidiary or Affiliate.
(o) Change of Examining Authority. The Lessee shall promptly give
-----------------------------
notice to the Agent and the Lenders of any change in its Examining Authority
and shall include in its notice the address of the new Examining Authority.
(p) Financial Statements, Reports, etc. The Lessee and JFC will
----------------------------------
deliver to the Agent with sufficient copies for each Funding Party, in form
and substance satisfactory to the Agent and the Required Lenders:
(i) as soon as available and, in any case, within 90 days
after the close of each fiscal year, two copies of the respective
consolidated statements of financial condition of the Lessee and
its Subsidiaries and JFC and its Subsidiaries setting forth the
financial condition of such entities as of the end of such fiscal
year, together with consolidated statements of income, cash flows,
changes in partnership capital and changes in liabilities of the
Lessee and JFC, respectively, for such fiscal year, in each case
setting forth, in comparative form, the figures for the preceding
fiscal year, all in reasonable detail, such financial statements to
be accompanied by an opinion with respect thereto of Xxxxxx
Xxxxxxxx LLP or another Independent Certified Public Accountant,
which opinion shall state that (x) the examination of such
accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards, and,
accordingly, included such tests of the accounting records and such
other auditing procedures as were considered necessary in the
circumstances, and (y) such financial statements present fairly the
financial condition of the Lessee and its Subsidiaries and JFC and
its Subsidiaries, respectively, at such date and the results of
operations thereof for such period and have been prepared in
accordance with generally accepted accounting principles
consistently applied, except for noted changes in application in
which such accountants concur;
(ii) as soon as practicable and, in any case, within 45 days
after the end of each of the first, second and third quarterly
accounting periods in each fiscal year, two copies of (x) the
respective unaudited consolidated statements of financial condition
of the Lessee and its Subsidiaries and JFC and its Subsidiaries
-39-
as of the end of such accounting period, and (y) the respective
unaudited consolidated statements of income of the Lessee and its
Subsidiaries and JFC and its Subsidiaries for the quarterly
accounting period and for the fiscal year to date, setting forth in
each case in comparative form the figures for the corresponding
periods a year earlier, prepared and certified by the principal
financial officer of the Lessee and JFC, respectively, as complete
and correct, as having been prepared in accordance with GAAP
consistently applied and as presenting fairly such financial
condition and results of operations, subject, in each case, to
changes resulting from year-end audit adjustments;
(iii) promptly upon receipt thereof, two copies of each report
other than those referred to in paragraph (i) hereof (including,
without limitation, the auditors' comment letter to management)
submitted to JFC, the Lessee or any Subsidiary by independent
certified public accountants in connection with any annual, interim
or special audit;
(iv) promptly upon distribution thereof, copies of all such
financial or other statements (including proxy statements) and
reports as JFC, the Lessee or any Subsidiary shall send to any
class of its partners or shareholders, as the case may be, its bank
lenders or holders of any issue of its debt securities;
(v) promptly after filing thereof, copies of all reports,
proxy statements and registration statements that JFC, the Lessee
or any Subsidiary shall file with any securities exchange or the
SEC, or any governmental or public authority or agency substituted
therefor, or any Business Association, including, without
limitation, all Focus Reports (provided that such Focus Reports may
be provided on a quarterly basis) and all amendments to any of the
foregoing filed by or with respect to the Lessee or any Subsidiary,
and promptly after filing of any Form BD, Form ADV or CRD report or
any amendment thereto that reflects any material disciplinary
action, liability or change in financial position, an Officer's
Certificate specifying the nature thereof and what action the
Lessee is taking or proposes to take with respect thereto;
(vi) promptly upon receipt thereof, copies of all notices
received from United States, Canadian or any other Permitted Nation
or any state, provincial or local governmental or public
authorities or agencies or any Business Association relating to any
order, ruling, statute, regulation or other law or directive that
might materially adversely affect the financial condition or
business of the Lessee or any Subsidiary;
(vii) immediately after the occurrence or institution thereof,
an Officer's Certificate specifying any matter that has resulted or
could reasonably be expected to result in a Material Adverse
Effect, including, to the extent so
-40-
applicable: (w) any breach or non-performance of, or any default
under, a Contractual Obligation of the Lessee, JFC or any of their
Subsidiaries; (x) any dispute, litigation, investigation,
proceeding or suspension between the Lessee, JFC or any of their
Subsidiaries and any Governmental Authority; (y) the commencement
of, or any material development in, any litigation or proceeding
affecting the Lessee, JFC or any of their Subsidiaries, including
pursuant to any applicable Environmental Laws; or (z) any other
Environmental Claims, which certificate shall describe what action
the Lessee is taking or proposes to take with respect thereto;
(viii) promptly, and in any event within 45 days after the end
of each of the first, second and third quarterly accounting periods
in each fiscal year, and within 90 days after the close of each
fiscal year, an Officer's Certificate setting forth a Net Capital
computation for the Lessee (or, if the Lessee is operating pursuant
to paragraph (a)(1)(ii) of Rule 15c3-1, an Alternative Net Capital
computation) as at the end of each quarterly fiscal period, and
certifying such computation as true and correct; provided, however,
-------- -------
that so long as (x) the Lessee shall be required to submit a report
for such quarterly fiscal period on Part I, II or IIA of Form
X-17A-5 (and accompanying information if any) to the SEC pursuant
to Rule 17a-5 of the General Rules and Regulations of the SEC under
the Exchange Act and (y) such report shall provide the computation
required by this paragraph (viii), the Lessee may submit such
report (and accompanying information if any), certified as set
forth above;
(ix) as soon as available, a copy of the annual audited report
filed by the Lessee pursuant to paragraph (d)(2) of Rule 17a-5 of
the General Rules and Regulations of the SEC under the Exchange
Act, together with the supporting schedules filed with said report
pursuant to paragraph (d)(3) of such Rule, provided, however, that
-------- -------
should said Rule 17a-5 lapse or be repealed, in whole or in part,
the Lessee shall deliver such other information or reports as it
shall be required to file in its status as a broker or dealer of
securities with the SEC or any successor agency thereto;
(x) immediately upon any partner or officer of the Lessee
obtaining knowledge of any new designation of an Examining
Authority, an Officer's Certificate specifying such new Examining
Authority;
(xi) immediately upon any partner or officer of the Lessee
obtaining knowledge of any condition or event which constitutes or
which, after notice or lapse of time or both, would constitute an
Event of Default or Potential Event of Default, an Officer's
Certificate, specifying the nature and period of existence
-41-
thereof and what action the Lessee has taken or is taking or proposes
to take with respect thereto;
(xii) immediately upon becoming aware of the occurrence of any
of the following events affecting the Lessee, JFC or any ERISA
Affiliate (but in no event more than 10 days after such event), and
deliver to the Agent and each Funding Party a copy of any notice
with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to
the Lessee, JFC or any ERISA Affiliate with respect to such event:
(w) an ERISA Event;
(x) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(y) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by the Lessee or any ERISA Affiliate; or
(z) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension
Liability;
(xiii) at the time of release thereof, copies of all press
releases of the Lessee, JFC or any of their Subsidiaries concerning
any event or condition material to the business, prospects,
earnings, properties or condition, financial or other, of any of
them;
(xiv) promptly after the execution thereof, a copy of each
amendment to the partnership agreement of the Lessee or JFC, other
than an amendment made solely to reflect additional capital
contributions to the Lessee or JFC, as the case may be, by a
partner;
(xv) of any material change in accounting policies or
financial reporting practices by the Lessee, JFC or any of their
Subsidiaries;
(xvi) upon, but in no event later than 15 days after, any
officer of the Lessee, JFC or any of their Subsidiaries becoming
aware of (x) any and all enforcement, investigation, cleanup,
removal or other governmental or regulatory actions instituted,
completed or threatened against the Lessee, JFC or any of the
Subsidiaries or any of their respective properties pursuant to any
applicable Environmental Laws which could reasonably be expected to
have a Material Adverse Effect, (y) all other material
Environmental Claims, and (z) any
-42-
environmental or similar condition on any real property adjoining
or in the vicinity of the property of the Lessee or any Subsidiary
that could reasonably be anticipated to cause such property of the
Lessee or such Subsidiary or any part thereof to be subject to any
material restrictions on the ownership, occupancy, transferability
or use of such property under any Environmental Laws; and
(xvii) promptly upon request therefor, such other data,
filings and information as the Agent or any Funding Party may from
time to time reasonably request. Each notice under this Section
shall be accompanied by a written statement by a Responsible
Officer setting forth details of the occurrence referred to
therein, and stating what action the Lessee, JFC or any affected
Subsidiary proposes to take with respect thereto and at what time.
Each notice under Section 5.1(p)(xi) shall describe with
------------------
particularity any and all clauses or provisions of this Master
Agreement or other Operative Document that have been (or
foreseeably will be) breached or violated.
(q) Officer's Certificates. Each set of financial statements
----------------------
delivered pursuant to paragraph (i) or (ii) of Section 5.1(p) hereof shall
be accompanied by a Compliance Certificate executed by a Responsible Officer
and, unless the following information is contained in such Compliance
Certificate, an Officer's Certificate (in form and substance satisfactory to
the Agent and the Required Lenders) executed by a Responsible Officer
stating that the Person signing the Certificate has reviewed the terms of
this Master Agreement, that a review of the affairs and activities of the
Lessee, JFC and their Subsidiaries has been made under such Person's
supervision and that, in such Person's opinion and to the best of such
Person's knowledge and belief, the Lessee, JFC and their Subsidiaries were
not upon the date of such certificate or at any time during the period
covered by such financial statements or Officer's Certificate in default
under any of the provisions of this Master Agreement or any of the other
Operative Documents, as the case may be, and setting forth in reasonable
detail the calculations made as at the end of such period in determining
compliance with the provisions of Sections 5.1(m) and (n) and Sections
5.2(i), (j), (k), (l), (m) and (n) hereof, inclusive; provided, however,
-------- -------
that, in the event that any such default shall have occurred, such
certificate shall so specify and shall state whether such default has been
cured or is continuing and, if continuing, what steps the Lessee or JFC, as
the case may be, proposes to take to cure such default and the time
necessary so to cure such default. Each such Officer's Certificate shall
also specify the percentage of Partnership Capital invested in assets which
were used in its business in countries other than Permitted Nations as of
the date of the balance sheet included in the accompanying financial
statements.
(r) Intentionally Omitted.
---------------------
(s) Restricted Subsidiary Financials. If the Lessee shall have one or
--------------------------------
more Restricted Subsidiaries, the financial statements referred to in
Sections 5.1(p)(i) and (ii) shall be furnished separately for each such
Restricted Subsidiary in addition to those for the Lessee and
-43-
its Consolidated Subsidiaries; provided, however, consolidating financial
statements which separately incorporate each such Restricted Subsidiary may
be provided in lieu of separate financial statements therefor.
(t) Environmental Laws.
------------------
(i) The Lessee shall, and shall cause each Subsidiary to,
conduct its operations and keep and maintain its property and
develop the Leased Property in compliance with all Environmental
Laws.
(ii) Upon the written request of the Agent or any Lender, the
Lessee shall submit and cause each of its Subsidiaries to submit,
to the Agent with sufficient copies for each Lender, at the
Lessee's sole cost and expense, at reasonable intervals, a report
providing an update of the status of any environmental, health or
safety compliance, hazard or liability issue identified in any
notice or report required pursuant to Section 5.1(c)(v).
-----------------
(iii) The Lessee shall, and cause each Subsidiary to, maintain
the Leased Property free from any Release.
(u) Use of Proceeds. The Lessee shall use the proceeds of the
---------------
Fundings to pay the costs of Construction and the acquisition and
installation of the Equipment as permitted hereunder and under the other
Operative Documents.
(v) Compliance with Bond Documents. The Lessee shall promptly
------------------------------
perform any and all obligations of the Lessee under the Bond Documents, and,
in the event the Lessee receives any notice of a default by the Lessee under
the Bond Documents, the Lessee shall promptly provide a copy of such notice
to the Agent.
(w) Payment of Fees and Costs under Bond Documents. The Lessee
----------------------------------------------
shall promptly pay as and when the same become due and owing under the Bond
Documents any and all fees and costs incurred by the Lessor, the Bond
Trustee or the Bond Owners, pursuant to the terms of the Bond Documents.
(x) Evidence of Tax Abatement. The Lessee shall, annually during
-------------------------
the Lease Term, obtain from the appropriate Governmental Authority having
jurisdiction over the Leased Property evidence reasonably acceptable to the
Agent that the Leased Property will, as a result of the fee title thereto
being vested in the Issuer, be exempt from real estate taxes and assessments
for the calendar year in question. It is hereby acknowledged and agreed by
the parties hereto that the Lessee shall be deemed to have satisfied its
obligations hereunder if the Lessee annually submits to the Agent a copy of
any and all tax bills issued by the appropriate Governmental Authority
having jurisdiction over the Leased Property indicating that there are no
real estate
-44-
taxes and assessments due and owing on the Leased Property for the period
covered by such tax xxxx(s).
SECTION 5.2 Additional Covenants. The Lessee and JFC, covenant and
--------------------
agree that, so long as any of the Commitments remain in effect or any
Obligation is owing to any Funding Party by the Lessee, the Lessee and JFC
shall not, directly or indirectly, without the prior written permission of
Agent as directed by the Required Lenders:
(a) Limitation on Liens. The Lessee shall not, and shall not suffer
-------------------
or permit any Subsidiary to, directly or indirectly, make, create, incur,
assume or suffer to exist any Lien upon or with respect to any part of its
property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
---------------
(i) any Lien existing on property of the Lessee or any
Subsidiary on the Closing Date and set forth in Schedule 5.2(a)(i)
------------------
securing Indebtedness outstanding on such date;
(ii) any Lien created under any Operative Document;
(iii) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty,
or to the extent that non-payment thereof is permitted by Section
-------
5.1(f), provided that no notice of lien has been filed or recorded
------ -------- ----
under the Code;
(iv) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested in good faith
and by appropriate proceedings, which proceedings have the effect
of preventing the forfeiture or sale of the property subject
thereto;
(v) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and
other social security legislation;
(vi) Liens on the property of the Lessee or its Subsidiaries
securing (x) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (y) Contingent Obligations in connection with
performance bonds, surety bonds and appeal bonds, and (z) other
nondelinquent obligations of a like nature, in each case, incurred
in the ordinary course of business; provided that all such Liens in
-------- ----
the aggregate could not reasonably be expected to cause a Material
Adverse Effect;
-45-
(vii) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively
-------- ----
stayed and the obligations secured by all such Liens in the
aggregate at any time outstanding for the Lessee and its
Subsidiaries could not reasonably be expected to cause a Material
Adverse Effect;
(viii) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of
the businesses of the Lessee and its Subsidiaries;
(ix) Liens on assets of corporations or other entities which
become Subsidiaries after the date of this Agreement, provided,
--------
however, that such Liens existed at the time the respective
-------
corporations or other entities became Subsidiaries and were not
created in anticipation thereof and the obligations secured by all
such Liens in the aggregate at any time outstanding could not
reasonably be expected to cause a Material Adverse Effect;
(x) security interests on any property acquired or held by the
Lessee or its Subsidiaries, securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such property; provided that (w) any such Lien attaches
-------- ----
to such property concurrently with or within 120 days after the
acquisition thereof, (x) such Lien attaches solely to the property
so acquired in such transaction and other like assets in respect of
which financing was provided by the same lender to the obligor of
such Indebtedness, (y) the principal amount of the debt secured
thereby does not exceed 100% of the cost of such property, and (z)
the principal amount of the Indebtedness secured by any and all
such security interests in the aggregate could not reasonably be
expected to cause a Material Adverse Effect;
(xi) Liens securing obligations in respect of capital leases
on assets subject to such leases, provided that such capital leases
-------- ----
are otherwise permitted hereunder;
(xii) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off
or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided
--------
that (x) such deposit account is not a dedicated cash collateral
----
account and is not subject to restrictions against access by the
Lessee or any Subsidiary in excess of those set forth by
regulations promulgated by the FRB, and (y) such deposit account is
not intended by the Lessee or any Subsidiary to provide collateral
to the depository institution;
-46-
(xiii) Liens securing other obligations of the Lessee and its
Subsidiaries not to exceed in the aggregate at any one time
outstanding ten percent (10%) of the total tangible assets of JFC
and its Consolidated Subsidiaries, as would be shown in the
consolidated financial statements of JFC and its Consolidated
Subsidiaries as at the end of the fiscal quarter next preceding the
date on which such determination is made;
(xiv) Liens encumbering real property acquired after the date
of this Master Agreement to the extent acquired pursuant to an
option, right of first refusal, right of first offer or other
similar contract right existing on the date of this Master
Agreement and described on Schedule 5.2(a)(xiv);
--------------------
(xv) Liens on the Lessee's interest in its customers'
securities, provided, however, that if any such Lien is subject to
-------- -------
regulation in any respect (including, without limitation, as to
security therefor) by the SEC, FRB, or any other Governmental
Authority or Business Association, any such Lien shall be permitted
pursuant to this Section 5.2(a), if and only if such Lien confirms
--------------
in all respects to any applicable regulations, rules, orders or
directions of any thereof; and
(xvi) Leases of property entered into with third party lessors
in the ordinary course of business by the Lessee or any Subsidiary,
as lessee, which are treated as operating leases under GAAP.
(b) Intentionally Omitted.
---------------------
(c) Use of Proceeds. The Lessee shall not, and shall not suffer or
---------------
permit any Subsidiary to, use any portion of the proceeds of any Funding,
directly or indirectly, (i) in such a manner as to result in a violation of
Regulation T, Regulation U or Regulation X of the FRB, or (ii) to acquire
any security in any transaction that is subject to Section 13 or 14 of the
Exchange Act.
(d) Contingent Obligations. The Lessee shall not, and shall not suffer
----------------------
or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(i) endorsements for collection or deposit in the ordinary
course of business;
(ii) Permitted Swap Obligations;
(iii) Contingent Obligations of the Lessee and its Subsidiaries
existing as of the Closing Date and listed in Schedule 5.2(d);
---------------
-47-
(iv) Contingent Obligations with respect to Indebtedness of the
Lessee's Wholly-Owned Subsidiaries permitted pursuant to
Section 5.2(j); and
--------------
(v) other Contingent Obligations not exceeding at any time ten
percent (10%) of the Lessee's Partnership Capital.
(e) ERISA. The Lessee shall not, and shall not suffer or permit any
-----
of its ERISA Affiliates to, (i) terminate any Plan subject to Title IV of
ERISA so as to result in any material (in the opinion of the Required
Lenders) liability to the Lessee or any ERISA Affiliate, (ii) permit to
exist any ERISA Event or any other event or condition, which presents the
risk of a material (in the opinion of the Required Lenders) liability to any
ERISA Affiliates, (iii) make a complete or partial withdrawal (within the
meaning of ERISA Section 4201) from any Multiemployer Plan so as to result
in any material (in the opinion of the Required Lenders) liability to the
Lessee or any ERISA Affiliate or, (iv) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder which could
result in any material (in the opinion of the Required Lenders) liability to
any ERISA Affiliate.
(f) Change in Business. The Lessee shall not, and shall not suffer
------------------
or permit any Subsidiary to, engage in any material line of business
substantially different from those lines of business carried on by the
Lessee and its Subsidiaries on the date hereof.
(g) Accounting Changes. The Lessee and JFC shall not, and shall not
------------------
suffer or permit any of their Subsidiaries to, (i) make any significant
change in accounting treatment or reporting practices, except as required by
GAAP, or (ii) change the fiscal year of the Lessee or JFC or of any of their
Subsidiaries; provided, that the fiscal year of the Lessee, JFC and their
Subsidiaries may be changed to a year ending December 31.
(h) Amendments to Organizational Documents. The Lessee will not,
--------------------------------------
nor will it permit any Subsidiary to, and JFC will not (i) make any
amendment or modification to any terms or provisions of its partnership
agreement, partnership certificate, articles of incorporation or bylaws
which is materially adverse to the Agent or the Lenders without the prior
written consent of the Required Lenders or (ii) issue any preferred stock.
(i) Restricted Distributions. Neither the Lessee nor any
------------------------
Consolidated Subsidiary will, directly or indirectly, declare or make, or
incur any liability to make, any Restricted Distribution, unless at the time
of so declaring, making or incurring such liability to make such Restricted
Distribution, and after giving effect thereto, no Potential Event of Default
or Event of Default shall exist.
(j) Lessee Indebtedness. Neither the Lessee nor any Consolidated
-------------------
Subsidiary shall create, incur or assume, or in any manner otherwise be or
become liable, contingently or otherwise, with respect to, or maintain or
suffer to exist, any Indebtedness, except:
-48-
(i) Indebtedness evidenced by the notes issued pursuant to the
Subordinated Debt Agreement, the 1992 Notes, the 1994 Notes and the
1996 Notes;
(ii) Additional Subordinated Debt, if immediately after the
occurrence thereof, and giving effect thereto, total Subordinated
Debt would not exceed 50% of Total Capitalization;
(iii) Additional Subordinated Debt in addition to that
permitted by paragraph (ii) of this Section 5.1(j); provided,
--------
however, that the additional Subordinated Debt permitted by this
-------
paragraph (iii) shall not exceed $10,000,000 and shall arise under
a revolving credit agreement or a similar credit facility,
maintained in accordance with paragraph (c)(5)(i) of Appendix D to
Rule 15c3-1; and, provided further, that any funds so drawn shall
be used solely for the purpose of the Lessee's participation as an
underwriter of securities as provided in said regulation;
(iv) Any short-term Indebtedness resulting from Credit
Balances and similar payables, Day Loans, Street Loans, Unsecured
Bank Overdrafts and other short-term obligations and liabilities to
customers, brokers, banks and others incurred in the ordinary
course of the Lessee's business as such business is described in
Item 1 of Part 1 of the Form 10-K; provided, however, that if any
-------- -------
such Indebtedness is subject to regulation in any respect
(including, without limitation, as to security therefor) by the
SEC, FRB, or any other Governmental Authority or Business
Association, any such Indebtedness shall be permitted pursuant to
this Section 5.2(j), if and only if such Indebtedness conforms in
--------------
all respects to any applicable regulations, rules, orders or
directions of any thereof. Lessee shall at its option have the
right to convert such Indebtedness to revolving lines of credit;
(v) Indebtedness secured solely by property owned by the
Lessee, provided that (A) any Indebtedness permitted by this
--------
paragraph (v) shall be evidenced by (x) a Capital Lease or (y) a
signed instrument expressly prohibiting recourse in respect of any
such Indebtedness against the Lessee or any Subsidiary thereof, or
any officer or director (past, present or future) of any thereof,
and (B) the aggregate Indebtedness permitted by this paragraph (v)
shall not exceed $50,000,000 or 20% of the Lessee's Net Capital,
whichever is greater;
(vi) Other Indebtedness incurred by Lessee or any Subsidiary
from time to time, provided however, the aggregate Indebtedness
permitted by this paragraph (vi) shall not exceed $50,000,000 or
20% of Lessee's Net Capital, whichever is greater; and
-49-
(vii) Indebtedness evidenced by that certain Master Agreement
dated as of November 30, 2000, among Xxxxxx X. Xxxxx & Co., L.P., as
Lessor, Construction Agent and Guarantor, Atlantic Financial Group,
Ltd. as Lessor, SunTrust Bank and certain financial institutions
parties thereto, as Lenders, and SunTrust Bank, as Agent, and joined
in by The Xxxxx Financial Companies, L.L.L.P.
(viii) Indebtedness that may be incurred by Lessee in the
event Lessee elects to complete the purchase of the property
located at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx pursuant to a
letter of intent between Lessee and Motorola, Inc. dated August 8,
2001.
(k) Lease Obligations. Neither the Lessee nor any Consolidated
-----------------
Subsidiary will become liable, renew or extend as lessee under any Long Term
Lease if, after giving effect thereto, the aggregate rental and other
amounts payable in any fiscal year of the Lessee in respect of all Long Term
Leases under which the Lessee or any Consolidated Subsidiary is lessee or is
otherwise directly or indirectly liable (whether or not contingently) would
at any time exceed 20% of Partnership Revenues for, and as of the end of,
the immediately preceding fiscal year.
(l) Restricted Investments. At no time will the Lessee or any of
----------------------
its Consolidated Subsidiaries make, or become obligated to make, directly or
indirectly, a Restricted Investment, if, after giving effect thereto the
aggregate amount of Restricted Investments (including ones as to which an
obligation to make has been incurred, directly or indirectly) of the Lessee
and its Consolidated Subsidiaries would exceed 15% of Partnership Capital.
(m) Merger, Consolidation or Transfer of Assets. The Lessee will
-------------------------------------------
not consolidate with or merge into any other Person (including any of its
Affiliates), nor will the Lessee permit or suffer any other Person
(including any of its Affiliates) to consolidate with or merge into it, nor
will the Lessee, directly or indirectly, in one or more transactions (except
in the ordinary course of its business as described in Item 1 of Part 1 of
the Form 10-K), sell, transfer, assign, lease (as lessor), abandon or
otherwise dispose of all, or substantially all, of its assets or buy, lease
or otherwise acquire all, or substantially all, of the equity interest or
assets of any other Person; provided, however, that the Lessee may acquire
-------- -------
all or substantially all of the equity interest or assets of any Person so
long as the aggregate amount of the consideration paid or otherwise given
(including the assumption of any liabilities) for the equity interests or
assets of such Person acquired by the Lessee (directly or indirectly),
whether in a lump sum or in more than one installments, shall not exceed
$10,000,000.
(n) Limitation on Liabilities. The Lessee will not cause or permit
-------------------------
the aggregate amount of liabilities of the Lessee and its Consolidated
Subsidiaries that could possibly arise at any time out of, or in relation
to, the Lessee's or a Consolidated Subsidiary's ownership, directly or
indirectly, of any interest or interests in limited partnerships or other
entities which may be Affiliates or Subsidiaries of the Lessee (other than
liabilities permitted by
-50-
Section 5.1(m)) to exceed $15,000,000. Any such interest of the Lessee or a
Consolidated Subsidiary acquired by it after the date of this Master
Agreement shall be owned only indirectly by it, and only through a series of
affiliated entities including at least one duly organized and validly
existing corporation which is in good standing under the laws of its
jurisdiction of incorporation and is at all times adequately capitalized and
as to which all corporate formalities are at all times observed.
The Lessee shall not be a general partner in any general or limited
partnership.
(o) Required Capital Ratio. The Required Capital Ratio as of the last
----------------------
day of each calendar quarter shall not be less than 3:75 to 1.00.
(p) Partnership Capital Requirement. The Lessee's End of Period
-------------------------------
Partnership Capital shall not as of the last day of any calendar quarter be
less than the greater of (i) $300 million or (ii) the Partnership Capital
then required to be maintained under the Subordinated Debt Agreement, as
such Partnership Capital requirement under the Subordinated Debt Agreement
may be increased from time to time.
(q) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio on
---------------------------
the last day of each fiscal quarter of JFC for the period of four
consecutive fiscal quarters ending on such date, in each case taken as a
single accounting period, shall not be less than 1.25 to 1.0.
(r) Restrictive Agreements. The Lessee shall not, nor shall it
----------------------
permit any of its Subsidiaries to, enter into any indenture, agreement,
instrument or other arrangement which directly or indirectly prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the ability of the Lessee or any
Subsidiary to (i) pay dividends or make other distributions (x) on its
Capital Stock or (y) with respect to any other interest or participation in,
or measured by, its profits, (ii) make loans or advances to the Lessee or
any Subsidiary, (iii) repay loans or advances from the Lessee or any
Subsidiary or (iv) transfer any of its properties or assets to the Lessee or
any Subsidiary.
(s) Disposition of Assets. The Lessee shall not, and shall not
---------------------
suffer or permit any Subsidiary to, directly or indirectly, (x) issue any
equity interests in the Lessee or any Subsidiary to any Person which is not
the Lessee or a Subsidiary or (y) sell, assign, lease, convey, transfer or
otherwise dispose of (whether in one or a series of transactions) any
property, including accounts and notes receivable, with or without recourse
(each, an "Asset Disposition"), or enter into any agreement to do any of the
-----------------
foregoing, except:
(i) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(ii) the sale of equipment to the extent that such equipment
is exchanged for credit against the purchase price of similar
replacement equipment,
-51-
or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment; and
(iii) dispositions not otherwise permitted hereunder which are
made for fair market value; provided, that (A) at the time of any
--------
disposition, no Event of Default shall exist or shall result from
such disposition, (B) at least 75% of the aggregate sales price
from such dispositions shall be paid in cash, and (C) the aggregate
value of all assets so sold by the Lessee and its Subsidiaries
after the date hereof, together, shall not (1) represent more than
5% of the total assets of the Lessee and its Subsidiaries, as would
be shown in the consolidated financial statements of the Lessee and
its Subsidiaries as at the end of the fiscal quarter next preceding
the date on which such determination is made, or (2) be responsible
for more than 5% of the consolidated net income of the Lessee and
its Subsidiaries for the 12-month period ending as of the end of
the fiscal quarter next preceding the date of determination.
(t) Year 2000. The Lessee will take, and will cause each of its
---------
Subsidiaries to take, all such actions as are reasonably necessary to
successfully implement a program to assure that the Year 2000 Problem will
not have a Material Adverse Effect. At the request of the Agent, the Lessee
will provide a description of such program, together with any updates or
progress reports with respect thereto.
SECTION 5.3 Further Assurances.
------------------
(a) The Lessee shall ensure that all written information, exhibits
and reports furnished to the Agent or the Funding Parties do not and will
not contain any untrue statement of a material fact and do not and will not
omit to state any material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which
made, and will promptly disclose to the Agent and the Funding Parties and
correct any defect or error that may be discovered therein or in any
Operative Document or in the execution, acknowledgment or recordation
thereof.
(b) Promptly upon request by the Agent or the Funding Parties, the
Lessee shall (and shall cause any of its Subsidiaries to) do, execute,
acknowledge, deliver, record, rerecord, file, re-file, register and
re-register, any and all such further acts, certificates, assurances and
other instruments the Agent or such Lenders, as the case may be, may
reasonably require from time to time in order (i) to carry out more
effectively the purposes of this Agreement or any other Operative Document,
and (ii) to better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Agent and Lenders the rights granted or now or
hereafter intended to be granted to the Lenders under any Loan Document or
under any other document executed in connection therewith.
-52-
(c) Upon the written request of the Lessor or the Agent, the
Lessee, at its own cost and expense, will cause all financing statements
(including precautionary financing statements), fixture filings and other
similar documents, to be recorded or filed at such places and times in such
manner, as may be necessary to preserve, protect and perfect the interest of
the Lessor, the Agent and the Lenders in the Leased Property as contemplated
by the Operative Documents.
SECTION 5.4 Additional Required Appraisals. If, as a result of any
------------------------------
change in Applicable Law after the date hereof, an appraisal of the Leased
Property is required during the Lease Term under Applicable Law with respect
to any Funding Party's interest therein, such Funding Party's Funded Amount
with respect thereto or the Operative Documents, then the Lessee shall pay
the reasonable cost of such appraisal, provided that, except as otherwise
-------------
provided in the Operative Documents, appraisals shall not be requested more
than once per year unless required by Applicable Law.
SECTION 5.5 Lessor's Covenants. The Lessor covenants and agrees that,
------------------
unless the Agent, the Lessee and the Lenders shall have otherwise consented
in writing:
(a) the proceeds of the Loans received from the Lenders will be
used by the Lessor solely to acquire the Leased Property and to pay the
Construction Agent or the Lessee for certain closing, development and
transaction costs associated therewith and for the costs of Construction. No
portion of the proceeds of the Loans will be used by the Lessor (i) in
connection with, whether directly or indirectly, any tender offer for, or
other acquisition of, stock of any corporation with a view towards obtaining
control of such other corporation or (ii) directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock;
(b) it shall not engage in any business or activity, or invest in
any Person, except for activities similar to its activities conducted on the
date hereof, the Transaction and lease transactions similar to the
Transaction;
(c) it will maintain tangible net worth in an amount no less than
the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated
----
assuming no reduction in the value of the Leased Property from its original
cost to the Lessor);
(d) it will deliver to the Agent and the Lessee, as soon as
available and in any event within 90 days after the end of each fiscal year,
a balance sheet of the Lessor as of the end of such fiscal year and the
related statements of income, partners' capital and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, together with copies of its tax returns, all
certified by an officer of the Lessor's General Partner (and if the Lessor
ever prepares audited financial statements, it shall deliver copies thereof
to the Agent and the Lessee);
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(e) it will permit the Agent, the Lessee and their respective
representatives to examine, and make copies from, the Lessor's books and
records, and to visit the offices and properties of the Lessor for the
purpose of examining such materials, and to discuss the Lessor's performance
hereunder with any of its, or its general partner's, officers and employees;
(f) it shall not consent to the creation of any easement or other
restriction against any Leased Property other than as permitted pursuant to
Article V of the Lease;
(g) it shall promptly discharge each Lessor Lien and shall
indemnify the Lenders and the Lessee for any diminution in value of the
Leased Property resulting from such Lessor Liens;
(h) it shall not enter into any other transactions, leases,
purchases or other agreements, other than immaterial transactions,
purchases, leases and other agreements entered into by the Lessor in the
ordinary course of its business, in which the other parties to said
transactions, leases, purchases or other agreements will have any recourse
against Lessor which is in addition to Lessor's ownership or other interest
in the property subject to such transactions, purchases, leases or other
agreements, other than liability for required fundings, breach of contract,
misrepresentation, gross negligence, willful misconduct, fraud, failure to
turn over funds and similar exceptions to limitations on recourse;
(i) it shall not guaranty the liabilities of any other Person;
(j) it shall pay its debts as such debts become due unless such debts
are the subject of a bona fide dispute;
(k) it shall not appoint a successor trustee or co-trustee to
replace or serve with Bond Trustee, as the case may be (provided the
Lessee's consent shall not be required so long as the fees of such successor
trustee or co-trustee do not exceed the then current fees charged by the
Bond Trustee for serving in such capacity);
(l) it shall not exercise any rights under the Bond Documents or
grant any approvals or consents required to be granted pursuant to the Bond
Documents (provided, except as otherwise set forth in (n) below, the
Lessee's consent shall not be required as a prerequisite to the Lessor
exercising any of its rights under the Bond Documents or granting any
approvals or consents required to be granted pursuant thereto);
(m) it will promptly deliver to the Agent copies of any and all
notices received pursuant to the Bond Documents; and
(n) it shall not exercise its option to purchase fee simple title
to the Leased Property from the Issuer pursuant to Bond Lease until the
occurrence of an Event of Default or a Potential Event of Default (provided,
however, if at any time prior to the Lease Termination Date
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the Issuer's credit or bond rating is downgraded below either A by S&P or
A1 by Xxxxx'x, the Lessor, with the consent of the Agent and the Lender,
may, after first giving the Lessee forty-five (45) days prior written notice
and the right and opportunity to exercise the Lessee's option to purchase
the Lessor's interest in the Leased Property in accordance with the terms of
Article XIV of the Lease, exercise such purchase option without the
necessity of obtaining the Lessee's consent thereto, in which case the
Lessee shall promptly reimburse the Lessor for any and all costs incurred by
the Lessor in exercising such option and the Lease shall continue in full
force and effect as a direct lease by the Lessor to the Lessee so long as no
Event of Default or Potential Event of Default then exists).
ARTICLE VI
TRANSFERS BY LESSOR AND LENDERS
SECTION 6.1 Lessor Transfers. The Lessor shall not assign, convey or
----------------
otherwise transfer all or any portion of its right, title or interest in, to
or under the Leased Property or any of the Operative Documents without the
prior written consent of the Lenders and the Lessee. Any proposed transferee
of the Lessor shall make the representations set forth in Section 4.3 to the
-----------
other parties hereto.
SECTION 6.2 Lender Transfers.
----------------
(a) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(b) Each Lender may assign all or a portion of its interests,
rights and obligations under this Master Agreement and the Loan Agreement
(including all or a portion of its Commitment and the Loans at the time
owing to it) to any Eligible Assignee; provided, however, that (i) the Agent
and, unless a Potential Event of Default or Event of Default shall have
occurred, the Lessee must give its prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed) unless such
assignment is to another Lender or to an Affiliate of the assigning Lender,
(ii) unless such Lender is assigning all of its Commitment, after giving
effect to such assignment, the Commitment of both the assignor and the
assignee is at least $1,000,000 and (iii) the parties to each such
assignment shall execute and deliver to the Agent an Assignment and
Acceptance, and, unless such assignment is to another Lender or to an
Affiliate of such Lender, a processing and recordation fee of $3,000. Any
such assignment of the Loans shall include both the A Loans and the B Loans,
on a pro rata basis. The Lessee shall not be responsible for such processing
and recordation fee or any costs or expenses incurred by any Lender or the
Agent in connection with such assignment. From and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
at least five (5) Business Days after the execution thereof, the assignee
thereunder shall be a party hereto and to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Master Agreement and the Loan Agreement.
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(c) Each Lender may, without the consent of the Lessee, sell
participations to one or more banks or other entities in all or a portion of
its rights and obligations under this Master Agreement and the Loan
Agreement (including all or a portion of its Commitment in the Loans owing
to it), provided, however, that (i) such Lender's obligations under this
Master Agreement and the Loan Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating bank or other
entity shall not be entitled to any greater benefit than its selling Lender
under the cost protection provisions contained in Section 7.5 of this Master
-----------
Agreement, and (iv) each Lessee, the Agent and the other Lenders shall
continue to deal solely and directly with each Lender in connection with
such Lender's rights and obligations under this Master Agreement and the
other Operative Documents, and such Lender shall retain the sole right to
enforce the obligations of Lessor relating to the Loans and to approve any
amendment, modification or waiver of any provisions of this Master Agreement
and the Loan Agreement (except that such Lender may permit the participant
to approve any amendment, modification or waiver which would reduce the
principal of or the interest rate on its Loan, extend the term of such
Lender's Commitment, reduce the amount of any fees to which such participant
is entitled or extend the final scheduled payment date of any Loan). Any
Lender selling a participation hereunder shall provide prompt written notice
to the Agent of the name of such participant.
(d) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
-------
proposed assignee or participant any information relating to the Lessee or
its Subsidiaries or Affiliates furnished to such Lender by or on behalf of
the Lessee. With respect to any disclosure of confidential, non-public,
proprietary information, such proposed assignee or participant shall agree
to use the information only for the purpose of making any necessary credit
judgments with respect to this facility and not to use the information in
any manner prohibited by any law, including without limitation, the
securities laws of the United States. The proposed participant or assignee
shall agree not to disclose any of such information except as permitted by
this Master Agreement. The proposed participant or assignee shall further
agree to return all documents or other written material and copies thereof
received from any Lender, the Agent or the Lessee relating to such
confidential information unless otherwise properly disposed of by such
entity.
(e) Any Lender may at any time assign all or any portion of its
rights under this Master Agreement and the Notes to a Federal Reserve Bank,
provided that no such assignment shall release such Lender from any of its
--------
obligations hereunder.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 General Indemnification. The Lessee agrees, whether or not
-----------------------
any of the transactions contemplated hereby shall be consummated, to assume
liability for, and to
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indemnify, protect, defend, save and hold harmless each Indemnitee, on an
After-Tax Basis, from and against, any and all Claims that may be imposed
on, incurred by or asserted, or threatened to be asserted, against such
Indemnitee, whether or not such Indemnitee shall also be indemnified as to
any such Claim by any other Person and whether or not such Claim arises or
accrues prior to the Closing Date or after the Lease Termination Date, or
results from such Indemnitee's negligence, in any way relating to or arising
out of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby, and any amendment, modification or waiver in respect
thereof; or
(b) the Land, the Building or any part thereof or interest therein,
including the Bond Lease;
(c) the purchase, design, construction, preparation, installation,
inspection, delivery, non-delivery, acceptance, rejection, ownership,
management, possession, operation, rental, lease, sublease, repossession,
maintenance, repair, alteration, modification, addition, substitution,
storage, transfer of title, redelivery, use, financing, refinancing,
disposition, operation, condition, sale (including, without limitation, any
sale pursuant to the Lease), return or other disposition of all or any part
of any interest in the Leased Property or the imposition of any Lien, other
than a Lessor Lien (or incurring of any liability to refund or pay over any
amount as a result of any Lien, other than a Lessor Lien) thereon,
including, without limitation: (i) Claims or penalties arising from any
violation or alleged violation of law or in tort (strict liability or
otherwise), (ii) latent or other defects, whether or not discoverable, (iii)
any Claim based upon a violation or alleged violation of the terms of any
restriction, easement, condition or covenant or other matter affecting title
to the Leased Property or any part thereof, (iv) the making of any
Alterations in violation of any standards imposed by any insurance policies
required to be maintained by the Lessee pursuant to the Lease which are in
effect at any time with respect to the Leased Property or any part thereof,
(v) any Claim for patent, trademark or copyright infringement, (vi) Claims
arising from any public improvements with respect to the Leased Property
resulting in any charge or special assessments being levied against the
Leased Property or any Claim for utility "tap-in" fees, and (vii) Claims for
personal injury or real or personal property damage occurring, or allegedly
occurring, on the Land, the Building or otherwise on or with respect to the
Leased Property;
(d) the breach or alleged breach by the Lessee of any
representation or warranty made by it or deemed made by it in any Operative
Document or any certificate required to be delivered by any Operative
Document;
(e) the retaining or employment of any broker, finder or financial
advisor by the Lessee to act on its behalf in connection with this Master
Agreement, or the incurring of any fees or commissions to which the Lessor,
the Agent or any Lender might be subjected by virtue of their entering into
the transactions contemplated by this Master Agreement (other than fees or
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commissions due to any broker, finder or financial advisor retained by the
Lessor, the Agent or any Lender);
(f) the existence of any Lien on or with respect to the Leased
Property, the Construction, any Basic Rent or Supplemental Rent, title
thereto, or any interest therein, including any Liens which arise out of the
possession, use, occupancy, construction, repair or rebuilding of the Leased
Property or by reason of labor or materials furnished or claimed to have
been furnished to the Construction Agent, the Lessee, or any of its
contractors or agents or by reason of the financing of any personalty or
equipment purchased or leased by the Lessee or Alterations constructed by
the Lessee;
(g) the transactions contemplated hereby or by any other Operative
Document, in respect of the application of Parts 4 and 5 of Subtitle B of
Title I of ERISA and any prohibited transaction described in Section 4975(c)
of the Code; or
(h) any act or omission by the Lessee under the Bond Lease or any
other Operative Document, and any breach of any requirement, condition,
restriction or limitation in the Bond Lease or any other Operative Document;
provided, however, the Lessee shall not be required to indemnify any
-------- -------
Indemnitee under this Section 7.1 for any Claim to the extent that such
-----------
Claim results from the willful misconduct, gross negligence or
misrepresentation of such Indemnitee; and, provided, further, that with
-------- -------
respect to the Construction Land Interest, the Lessee's indemnity
obligations with respect to such Leased Property shall be governed by
Section 3.3 of the Construction Agency Agreement during the Construction
-----------
Term therefor. It is expressly understood and agreed that the indemnity
provided for herein shall survive the expiration or termination of, and
shall be separate and independent from any other remedy under this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.2 Environmental Indemnity. In addition to and without
-----------------------
limitation of Section 7.1 or Section 3.3 of the Construction Agency
----------- -----------
Agreement, the Lessee agrees to indemnify, hold harmless and defend each
Indemnitee on an After-Tax Basis from and against any and all claims
(including without limitation third party claims for personal injury or real
or personal property damage), losses (including but not limited to any loss
of value of the Leased Property), damages, liabilities, fines, penalties,
charges, suits, settlements, demands, administrative and judicial
proceedings (including informal proceedings and investigations) and orders,
judgments, remedial action, requirements, enforcement actions of any kind,
and all reasonable costs and expenses actually incurred in connection
therewith (including, but not limited to, reasonable attorneys' and/or
paralegals' fees and expenses), including, but not limited to, all costs
incurred in connection with any investigation or monitoring of site
conditions or any clean- up, remedial, removal or restoration work by any
federal, state or local government agency, arising directly or indirectly,
in whole or in part, out of
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(i) the presence on or under the Land of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials
on, under, from or onto the Land,
(ii) any activity, including, without limitation,
construction, carried on or undertaken on or off the Land, and
whether by the Lessee or any predecessor in title or any employees,
agents, contractors or subcontractors of the Lessee or any
predecessor in title, or any other Person, in connection with the
handling, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials that at any time
are located or present on or under or that at any time migrate,
flow, percolate, diffuse or in any way move onto or under the Land,
(iii) loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, cost of corrective action, costs of
financial assurance, fines and penalties and natural resource
damages), or death or injury to any Person, and all expenses
associated with the protection of wildlife, aquatic species,
vegetation, flora and fauna, and any mitigative action required by
or under Environmental Laws, in each case to the extent related to
the Leased Property,
(iv) any claim concerning the Leased Property's lack of
compliance with Environmental Laws, or any act or omission causing
an environmental condition on or with respect to the Leased
Property that requires remediation or would allow any governmental
agency to record a lien or encumbrance on the land records, or
(v) any residual contamination on or under the Land, or
affecting any natural resources on the Land, and to any
contamination of any property or natural resources arising in
connection with the generation, use, handling, storage, transport
or disposal of any such Hazardous Materials on or from the Leased
Property; in each case irrespective of whether any of such
activities were or will be undertaken in accordance with applicable
laws, regulations, codes and ordinances;
in any case with respect to the matters described in the foregoing clauses
-------
(i) through (v) that arise or occur
--- ---
(w) prior to or during the Lease Term,
(x) at any time during which the Lessee or any Affiliate
thereof owns any interest in or otherwise occupies or possesses the
Leased Property or any portion thereof, or
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(y) during any period after and during the continuance of any Event
of Default;
provided, however, the Lessee shall not be required to indemnify any
-------- -------
Indemnitee under this Section 7.2 for any Claim to the extent that such
-----------
Claim results from the willful misconduct or gross negligence of such
Indemnitee. It is expressly understood and agreed that the indemnity
provided for herein shall survive the expiration or termination of, and
shall be separate and independent from any other remedy under, this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.3 Proceedings in Respect of Claims. With respect to any
--------------------------------
amount that the Lessee is requested by an Indemnitee to pay by reason of
Section 7.1 or 7.2, such Indemnitee shall, if so requested by the Lessee and
----------- ---
prior to any payment, submit such additional information to the Lessee as
the Lessee may reasonably request and which is in the possession of, or
under the control of, such Indemnitee to substantiate properly the requested
payment. In case any action, suit or proceeding shall be brought against any
Indemnitee, such Indemnitee promptly shall notify the Lessee of the
commencement thereof (provided that the failure of such Indemnitee to
promptly notify the Lessee shall not affect any Lessee's obligation to
indemnify hereunder except to the extent that the Lessee's ability to
contest is materially prejudiced by such failure), and the Lessee shall be
entitled, at its expense, to participate in, and, to the extent that the
Lessee desires to, assume and control the defense thereof with counsel
reasonably satisfactory to such Indemnitee; provided, however, that such
-------- -------
Indemnitee may pursue a motion to dismiss such Indemnitee from such action,
suit or proceeding with counsel of such Indemnitee's choice at the Lessee's
expense; and provided further that the Lessee may assume and control the
defense of such proceeding only if the Lessee shall have acknowledged in
writing its obligations to fully indemnify such Indemnitee in respect of
such action, suit or proceeding, shall pay all reasonable costs and expenses
related to such action, suit or proceeding as and when incurred and the
Lessee shall keep such Indemnitee fully apprised of the status of such
action suit or proceeding and shall provide such Indemnitee with all
information with respect to such action suit or proceeding as such
Indemnitee shall reasonably request; and, provided further, that the Lessee
-------- -------
shall not be entitled to assume and control the defense of any such action,
suit or proceeding if and to the extent that, (A) in the reasonable opinion
of such Indemnitee, (x) such action, suit or proceeding involves any
possibility of imposition of criminal liability or any material risk of
material civil liability on such Indemnitee or (y) such action, suit or
proceeding will involve a material risk of the sale, forfeiture or loss of,
or the creation of any Lien (other than a Permitted Encumbrance) on the
Leased Property or any part thereof unless the Lessee shall have posted a
bond or other security satisfactory to the relevant Indemnitees in respect
to such risk or (z) the control of such action, suit or proceeding would
involve an actual or potential conflict of interest, (B) such proceeding
involves Claims not fully indemnified by the Lessee which the Lessee and the
Indemnitee have been unable to sever from the indemnified claim(s), or (C)
an Event of Default has occurred and is continuing. The Indemnitee may
participate in a
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reasonable manner at its own expense and with its own counsel in any
proceeding conducted by the Lessee in accordance with the foregoing.
If the Lessee fails to fulfill the conditions to the Lessee's assuming
the defense of any claim after receiving notice thereof on or prior to the
date that is fifteen (15) days prior to the date that an answer or response
is required, the Indemnitee may undertake such defense, at the Lessee's
expense. Lessee shall not enter into any settlement or other compromise with
respect to any Claim in excess of $25,000 which is entitled to be
indemnified under Section 7.1 or 7.2 without the prior written consent of
----------- ---
the related Indemnitee, which consent shall not be unreasonably withheld.
Unless an Event of Default shall have occurred and be continuing, no
Indemnitee shall enter into any settlement or other compromise with respect
to any claim which is entitled to be indemnified under Section 7.1 or 7.2
----------- ---
without the prior written consent of the Lessee, which consent shall not be
unreasonably withheld, unless such Indemnitee waives its right to be
indemnified under Section 7.1 or 7.2 with respect to such Claim.
----------- ---
Upon payment in full of any Claim by the Lessee pursuant to Section 7.1
-----------
or 7.2 to or on behalf of an Indemnitee, the Lessee, without any further
---
action, shall be subrogated to any and all claims that such Indemnitee may
have relating thereto (other than claims in respect of insurance policies
maintained by such Indemnitee at its own expense), and such Indemnitee shall
execute such instruments of assignment and conveyance, evidence of claims
and payment and such other documents, instruments and agreements as may be
reasonably necessary to preserve any such claims and otherwise cooperate
with the Lessee and give such further assurances as are reasonably necessary
or advisable to enable the Lessee vigorously to pursue such claims.
Any amount payable to an Indemnitee pursuant to Section 7.1 or 7.2
----------- ---
shall be paid to such Indemnitee promptly upon, but in no event later than
thirty (30) days after, receipt of a written demand therefor from such
Indemnitee, accompanied by a written statement describing in reasonable
detail the basis for such indemnity and the computation of the amount so
payable.
If for any reason the indemnification provided for in Section 7.1 or
-----------
7.2 is unavailable to an Indemnitee or is insufficient to hold an Indemnitee
---
harmless, then the Lessee agrees to contribute to the amount paid or payable
by such Indemnitee as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative benefits
received by such Indemnitee on the one hand and by the Lessee on the other
hand but also the relative fault of such Indemnitee as well as any other
relevant equitable considerations. It is expressly understood and agreed
that the right to contribution provided for herein shall survive the
expiration or termination of and shall be separate and independent from any
other remedy under this Master Agreement, the Lease or any other Operative
Document.
SECTION 7.4 General Tax Indemnity.
---------------------
(a) Tax Indemnity. Except as otherwise provided in this Section 7.4,
------------- -----------
the Lessee shall pay on an After-Tax Basis, and on written demand shall
indemnify and hold each
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Tax Indemnitee harmless from and against, any and all fees (including,
without limitation, documentation, recording, license and registration
fees), taxes (including, without limitation, income, franchise, gross
receipts, sales, rental, use, turnover, value-added, property, excise and
stamp taxes), levies, imposts, duties, charges, assessments or withholdings
of any nature whatsoever, together with any penalties, fines or interest
thereon or additions thereto (any of the foregoing being referred to herein
as "Taxes" and individually as a "Tax" (for the purposes of this Section 7.4,
----- --- -----------
the definition of "Taxes" includes amounts imposed on, incurred by, or
-----
asserted against each Tax Indemnitee as the result of any prohibited
transaction, within the meaning of Section 406 or 407 of ERISA or Section
4975(c) of the Code, arising out of the transactions contemplated hereby or
by any other Operative Document)) imposed on or with respect to any Tax
Indemnitee, the Lessee, the Leased Property or any portion thereof, or any
sublessee or user thereof, by the United States or by any state or local
government or other taxing authority in the United States or any state,
local or foreign authority, in connection with or in any way relating to (i)
the acquisition, financing, mortgaging, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance, rejection,
purchase, ownership, possession, rental, lease, sublease, maintenance,
repair, storage, transfer of title, redelivery, use, operation, condition,
sale, return or other application or disposition of all or any part of the
Leased Property or the imposition of any Lien (or incurrence of any
liability to refund or pay over any amount as a result of any Lien) thereon,
(ii) the Notes or other indebtedness with respect to the Leased Property or
any part thereof or interest therein, (iii) Basic Rent or Supplemental Rent
or the receipts or earnings arising from or received with respect to the
Leased Property or any part thereof, or any interest therein or any
applications or dispositions thereof, (iv) any other amount paid or payable
pursuant to the Notes or any other Operative Documents, (v) the Leased
Property or any part thereof or any interest therein (including, without
limitation, all assessments payable in respect thereof, including, without
limitation, all assessments noted on the related Title Policy), (vi) all or
any of the Operative Documents, any other documents contemplated thereby,
any amendments and supplements thereto, and (vii) otherwise with respect to
or in connection with the transactions contemplated by the Operative
Documents.
(b) Exclusions from General Tax Indemnity. Section 7.4(a) shall not
------------------------------------- --------------
apply to:
(i) Taxes on, based on, or measured by or with respect to net
income of the Lessor, the Agent and the Lenders (including minimum
Taxes, capital gains Taxes, Taxes on or measured by items of tax
preference or alternative minimum Taxes) other than (A) any such
Taxes that are, or are in the nature of, sales, use, license,
rental or property Taxes, and (B) withholding Taxes imposed by the
United States or any state in which the Leased Property is located
(i) on payments with respect to the Notes, to the extent imposed by
reason of a change in Applicable Law occurring after the date on
which the holder of such Note became the holder of such Note or
(ii) on Rent, to the extent the net payment of Rent after deduction
of such withholding Taxes would be less than amounts currently
payable with respect to the Funded Amounts provided that this
clause (i) shall not
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prevent a payment from being made on an After-Tax Basis if such
payment is otherwise required to be so made;
(ii) Taxes on, based on, or in the nature of or measured by
Taxes on doing business, business privilege, franchise, capital,
capital stock, net worth, or mercantile license or similar taxes
other than any Taxes that are or are in the nature of sales, use,
rental, license or property Taxes relating to the Leased Property
provided that this clause (ii) shall not prevent a payment from
being made on an After-Tax Basis if such payment is otherwise
required to be so made;
(iii) Taxes that are based on, or measured by, the fees or
other compensation received by a Person acting as Agent (in its
individual capacities) or any Affiliate of any thereof for acting
as trustee under the Loan Agreement;
(iv) Taxes that result from any act, event or omission, or are
attributable to any period of time, that occurs after the earlier
of (A) the expiration of the Lease Term with respect to the Leased
Property and, if the Leased Property is required to be returned to
the Lessor in accordance with the Lease, such return and (B) the
discharge in full of the Lessee's obligations to pay the Lease
Balance, or any amount determined by reference thereto, with
respect to the Leased Property and all other amounts due under the
Lease, unless such Taxes relate to acts, events or matters
occurring prior to the earlier of such times or are imposed on or
with respect to any payments due under the Operative Documents
after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any
voluntary sale, assignment, transfer or other disposition or
bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of
any interest in any Leased Property or any part thereof, or any
interest therein or any interest or obligation arising under the
Operative Documents, or from any sale, assignment, transfer or
other disposition of any interest in such Tax Indemnitee or any
related Tax Indemnitee, it being understood that each of the
following shall not be considered a voluntary sale: (A) any
assignment, sublease, substitution, replacement or removal of any
of the Leased Property by the Lessee, (B) any sale or transfer
resulting from the exercise by any Lessee of any termination
option, any purchase option or sale option, (C) any sale or
transfer while an Event of Default shall have occurred and be
continuing under the Lease, (D) a Casualty or Condemnation
affecting the Leased Property or any part thereof, and (E) any sale
or transfer resulting from the Lessor's exercise of remedies under
the Lease;
(vi) any Tax which is being contested in accordance with the
provisions of Section 7.4(c), during the pendency of such contest;
--------------
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(vii) any Tax that is imposed on a Tax Indemnitee as a result
of such Tax Indemnitee's gross negligence or willful misconduct
(other than gross negligence or willful misconduct imputed to such
Tax Indemnitee solely by reason of its interest in the Leased
Property);
(viii) any Tax that results from a Tax Indemnitee engaging,
with respect to any Leased Property, in transactions other than
those permitted by the Operative Documents;
(ix) to the extent any interest, penalties or additions to tax
result in whole or in part from the failure of a Tax Indemnitee to
file a return or pay a Tax that it is required to file or pay in a
proper and timely manner, unless such failure (A) results from the
transactions contemplated by the Operative Documents in
circumstances where Lessee did not give timely notice to such Tax
Indemnitee of such filing or payment requirement that would have
permitted a proper and timely filing of such return or payment of
such Tax, as the case may be, or (B) results from the failure of
the Lessee to supply information necessary for the proper and
timely filing of such return or payment of such Tax, as the case
may be, that was not in the possession of such Tax Indemnitee;
(x) Taxes resulting from the failure of a Tax Indemnitee to
comply with subsection 7.5(e) other than as a result of an
-----------------
increased cost described in subsection 7.5(b); and
-----------------
(xi) as to Lessor, any Tax that results from the breach by the
Lessor of its representation and warranty made in Section 4.3(g) or
--------------
as to any Lender the breach of such Lender of its representation
and warranty made in Section 4.4(b).
--------------
Notwithstanding the foregoing, the exclusions provided for in
clauses (i), (ii) and (v) of this Subsection 7.4(b) shall not apply
(but the other exclusions shall apply) to any Taxes or any increase in
Taxes imposed on any Tax Indemnitee net of any decrease in Taxes
realized by such Tax Indemnitee to the extent that any such Tax
increase or decrease would not have occurred if on the date of each
Advance the Lessor and the Lenders had advanced funds directly to the
Lessee in the form of a loan by such Lessor or Lender secured by the
Leased Property in an amount equal to the amounts funded by the Lessor
and the Lenders on each such date and a principal balance at the
maturity of such loan in an amount equal to the Funded Amounts at the
end of the Lease Term.
(c) Contests. If any claim shall be made against any Tax
--------
Indemnitee or if any proceeding shall be commenced against any Tax
Indemnitee (including a written notice of such proceeding) for any Taxes as
to which the Lessee may have an indemnity obligation pursuant to Section 7.4,
-----------
or if any Tax Indemnitee shall determine that any Taxes as to which the
Lessee may have an indemnity obligation pursuant to Section 7.4 may be
-----------
payable, such Tax Indemnitee shall
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promptly notify the Lessee. The Lessee shall be entitled, at its expense, to
participate in, and, to the extent that the Lessee desires to, assume and
control the defense thereof; provided, however, that the Lessee shall have
-------- -------
acknowledged in writing its obligation to fully indemnify such Tax
Indemnitee in respect of such action, suit or proceeding if the contest is
unsuccessful, and, provided further, that the Lessee shall not be entitled
-------- -------
to assume and control the defense of any such action, suit or proceeding
(but the Tax Indemnitee shall then control the defense of such contest, at
the sole cost and expense of the Lessee, on behalf of the Lessee with
representatives reasonably satisfactory to the Lessee) if and to the extent
that, (A) in the reasonable opinion of such Tax Indemnitee, such action,
suit or proceeding (x) involves any meaningful risk of imposition of
criminal liability or any material risk of material civil liability on such
Tax Indemnitee or (y) will involve a material risk of the sale, forfeiture
or loss of, or the creation of any Lien (other than a Permitted Encumbrance)
on the Leased Property or any part thereof unless the Lessee shall have
posted a bond or other security satisfactory to the relevant Tax Indemnitees
in respect to such risk, (B) such proceeding involves Claims not fully
indemnified by the Lessee which the Lessee and the Tax Indemnitee have been
unable to sever from the indemnified claim(s), (C) an Event of Default has
occurred and is continuing, (D) such action, suit or proceeding involves
matters which extend beyond or are unrelated to the Transaction and if
determined adversely could be materially detrimental to the interests of
such Tax Indemnitee notwithstanding indemnification by the Lessee or (E)
such action, suit or proceeding involves the federal or any state income tax
liability of the Tax Indemnitee. With respect to any contests controlled by
a Tax Indemnitee, (i) if such contest relates to the federal or any state
income tax liability of such Tax Indemnitee, such Tax Indemnitee shall be
required to conduct such contest only if the Lessee shall have provided to
such Tax Indemnitee an opinion of independent tax counsel selected by the
Tax Indemnitee and reasonably satisfactory to the Lessee stating that a
reasonable basis exists to contest such claim or (ii) in the case of an
appeal of an adverse determination of any contest relating to any Taxes, an
opinion of such counsel to the effect that such appeal is more likely than
not to be successful; provided, however, such Tax Indemnitee shall in no
--------
event be required to appeal an adverse determination to the United States
Supreme Court. The Tax Indemnitee may participate in a reasonable manner at
its own expense and with its own counsel in any proceeding conducted by the
Lessee in accordance with the foregoing.
Each Tax Indemnitee shall, at the Lessee's expense, supply the Lessee
with such information and documents in such Tax Indemnitee's possession
reasonably requested by the Lessee as are necessary or advisable for the
Lessee to participate in any action, suit or proceeding to the extent
permitted by this Section 7.4. Unless an Event of Default shall have
-----------
occurred and be continuing, no Tax Indemnitee shall enter into any
settlement or other compromise with respect to any Claim which is entitled
to be indemnified under this Section 7.4 without the prior written consent
-----------
of the Lessee, which consent shall not be unreasonably withheld, unless such
Tax Indemnitee waives its right to be indemnified under this Section 7.4
-----------
with respect to such Claim.
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Notwithstanding anything contained herein to the contrary, (I) a Tax
Indemnitee will not be required to contest (and the Lessee shall not be
permitted to contest except on its own behalf if it is subject thereto) a
claim with respect to the imposition of any Tax if such Tax Indemnitee shall
waive its right to indemnification under this Section 7.4 with respect to
-----------
such claim (and any related claim with respect to other taxable years the
contest of which is precluded as a result of such waiver) and (II) no Tax
Indemnitee shall be required to contest any claim if the subject matter
thereof shall be of a continuing nature and shall have previously been
decided adversely, unless there has been a change in law which, in the
opinion of Tax Indemnitee's counsel, creates substantial authority for the
success of such contest. Each Tax Indemnitee and the Lessee shall consult in
good faith with each other regarding the conduct of such contest controlled
by either.
(d) Reimbursement for Tax Savings. If (i) a Tax Indemnitee shall
-----------------------------
obtain a credit or refund of any Taxes paid by the Lessee pursuant to this
Section 7.4 or (ii) by reason of the incurrence or imposition of any Tax for
-----------
which a Tax Indemnitee is indemnified hereunder or any payment made to or
for the account of such Tax Indemnitee by the Lessee pursuant to this
Section 7.4, such Tax Indemnitee at any time realizes a reduction in any
-----------
Taxes for which the Lessee is not required to indemnify such Tax Indemnitee
pursuant to this Section 7.4, which reduction in Taxes was not taken into
-----------
account in computing such payment by the Lessee to or for the account of
such Tax Indemnitee, then such Tax Indemnitee shall promptly pay to the
Lessee (x) the amount of such credit or refund, together with the amount of
any interest received by such Tax Indemnitee on account of such credit or
refund or (y) an amount equal to such reduction in Taxes, as the case may
be, provided that no such payment shall be made so long as an Event of
--------
Default shall have occurred and be continuing (but shall be paid promptly
after all Events of Default have been cured) and, provided, further, that
-------- -------
the amount payable to the Lessee by any Tax Indemnitee pursuant to this
Section 7.4(d) shall not at any time exceed the aggregate amount of all
--------------
indemnity payments made by the Lessee under this Section 7.4 to such Tax
-----------
Indemnitee with respect to the Taxes which gave rise to the credit or refund
or with respect to the Tax which gave rise to the reduction in Taxes less
----
the amount of all prior payments made to the Lessee by such Tax Indemnitee
under this Section 7.4(d). Each Tax Indemnitee agrees to act in good faith
--------------
to claim such refunds and other available Tax benefits, and take such other
actions as may be reasonable to minimize any payment due from the Lessee
pursuant to this Section 7.4. The disallowance or reduction of any credit,
-----------
refund or other tax savings with respect to which a Tax Indemnitee has made
a payment to the Lessee under this Section 7.4(d) shall be treated as a Tax
--------------
for which the Lessee is obligated to indemnify such Tax Indemnitee hereunder
without regard to Section 7.4(b) hereof.
--------------
(e) Payments. Any Tax indemnifiable under this Section 7.4 shall be
-------- -----------
paid by the Lessee directly when due to the applicable taxing authority if
direct payment is practicable and permitted. If direct payment to the
applicable taxing authority is not permitted or is otherwise not made, any
amount payable to a Tax Indemnitee pursuant to this Section 7.4 shall be
-----------
paid within thirty (30) days after receipt of a written demand therefor from
such Tax Indemnitee accompanied by a written statement describing in
reasonable detail the amount so
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payable, but not before the date that the relevant Taxes are due. Any
payments made pursuant to Section 7.4 shall be made to the Tax Indemnitee
-----------
entitled thereto or the Lessee, as the case may be, in immediately available
funds at such bank or to such account as specified by the payee in written
directions to the payor, or, if no such direction shall have been given, by
check of the payor payable to the order of the payee by certified mail,
postage prepaid at its address as set forth in this Master Agreement. Upon
the request of any Tax Indemnitee with respect to a Tax that the Lessee is
required to pay, the Lessee shall furnish to such Tax Indemnitee the
original or a certified copy of a receipt for the Lessee's payment of such
Tax or such other evidence of payment as is reasonably acceptable to such
Tax Indemnitee.
(f) Reports. If the Lessee knows of any report, return or statement
-------
required to be filed with respect to any Taxes that are subject to
indemnification under this Section 7.4, the Lessee shall, if the Lessee is
-----------
permitted by Applicable Law, timely file such report, return or statement
(and, to the extent permitted by law, show ownership of the applicable
Leased Property in the Lessee); provided, however, that if the Lessee is not
--------
permitted by Applicable Law or does not have access to the information
required to file any such report, return or statement, the Lessee will
promptly so notify the appropriate Tax Indemnitee, in which case the Tax
Indemnitee will file such report. In any case in which the Tax Indemnitee
will file any such report, return or statement, the Lessee shall, upon
written request of such Tax Indemnitee, prepare such report, return or
statement for filing by such Tax Indemnitee or, if such Tax Indemnitee so
requests, provide such Tax Indemnitee with such information as is reasonably
available to the Lessee.
(g) Verification. At the Lessee's request, the amount of any
------------
indemnity payment by the Lessee or any payment by a Tax Indemnitee to the
Lessee pursuant to this Section 7.4 shall be verified and certified by an
-----------
independent public accounting firm selected by the Lessee and reasonably
acceptable to the Tax Indemnitee. Unless such verification shall disclose an
error in the Lessee's favor of five percent (5%) or more of the related
indemnity payment, the costs of such verification shall be borne by the
Lessee. In no event shall the Lessee have the right to review the Tax
Indemnitee's tax returns or receive any other confidential information from
the Tax Indemnitee in connection with such verification. The Tax Indemnitee
agrees to cooperate with the independent public accounting firm performing
the verification and to supply such firm with all information reasonably
necessary to permit it to accomplish such verification, provided that the
information provided to such firm by such Tax Indemnitee shall be for its
confidential use. The parties agree that the sole responsibility of the
independent public accounting firm shall be to verify the amount of a
payment pursuant to this Master Agreement and that matters of interpretation
of this Master Agreement are not within the scope of the independent
accounting firm's responsibilities.
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SECTION 7.5 Increased Costs, etc.
--------------------
(a) Illegality. Notwithstanding any other provision herein, if any
----------
change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Funding Party to make or maintain
LIBOR Advances as contemplated by this Master Agreement, (i) the commitment
of such Funding Party hereunder to continue LIBOR Advances as such and
convert Funded Amounts to LIBOR Advances shall forthwith be canceled and
(ii) such Funding Party's Funded Amounts then outstanding as LIBOR Advance,
if any, shall be converted automatically to Base Rate Advances on the
respective last days of the then current Rent Periods with respect to such
Funded Amounts or within such earlier period as required by law. If any such
conversion of a LIBOR Advance occurs on a day which is not the last day of
the then current Rent Period with respect thereto, the Lessee shall pay to
such Funding Party such amounts, if any, as may be required pursuant to
Section 7.5(f).
--------------
(b) Requirements of Law. In the event that Eurocurrency Reserve
-------------------
Requirements or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Funding Party
with any request or directive (whether or not having the force of law) from
any central bank or other Governmental Authority made subsequent to the date
hereof:
(i) shall subject any Funding Party to any tax of any kind
whatsoever with respect to this Master Agreement, any Note or any
LIBOR Advance made by it, or change the basis of taxation of
payments to such Funding Party in respect thereof (except for taxes
covered by Section 7.5(d) and changes in franchise taxes or the
--------------
rate of tax on the overall net income of such Funding Party
provided that such exceptions shall not apply to changes that would
prevent any Funding Party from being entitled to a complete
exemption from withholding taxes as described in Subsection 7.5(e));
-----------------
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account
of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Funding Party which is
not otherwise included in the determination of the LIBOR Rate; or
(iii) shall impose on such Funding Party any other condition;
and the result of any of the foregoing is to increase the cost to such
Funding Party, by an amount which such Funding Party deems to be material,
of making, converting into, continuing or maintaining LIBOR Advances or to
reduce any amount receivable hereunder in respect thereof then, in any such
case, the Lessee shall promptly pay such Funding Party, upon its demand, any
additional amounts necessary to compensate such Funding Party on an After-
Tax Basis for such increased cost or reduced amount receivable. If any
Funding Party becomes entitled to claim any additional amounts pursuant to
this subsection, it shall promptly notify the Lessee, through the Agent, of
the event by reason of which it has become so entitled. A certificate as to
any
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additional amounts payable pursuant to this subsection submitted by such
Funding Party, through the Agent, to the Lessee in good faith and setting
forth in reasonable detail the calculation of such amounts shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Master Agreement and the payment of the Notes and all
other amounts payable under the Operative Documents.
(c) Capital Adequacy. In the event that any Funding Party or
----------------
corporation controlling such Funding Party shall have determined that any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Funding Party or
such corporation with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority
made subsequent to the date hereof does or shall have the effect of reducing
the rate of return on such Funding Party's capital as a consequence of its
obligations hereunder to a level below that which such Funding Party could
have achieved but for such change or compliance (taking into consideration
such Funding Party's policies with respect to capital adequacy) by an amount
deemed by such Funding Party to be material, then from time to time, after
submission by such Funding Party in good faith to the Lessee (with a copy to
the Agent) of a written request therefor setting forth in reasonable detail
the calculation of such amount (which request shall be conclusive in the
absence of manifest error), the Lessee shall pay to such Funding Party such
additional amount or amounts as will compensate such Funding Party for such
reduction. This covenant shall survive the termination of this Master
Agreement and the payment of the Notes and all other amounts payable under
the Operative Documents.
(d) Taxes. Subject to Section 7.5(e), all payments made by the
----- --------------
Lessee under the Lease and the other Operative Documents shall be made free
and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding, in
the case of the Agent and each Funding Party, net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the Agent or such
Funding Party, as the case may be, as a result of a present or former
connection between the jurisdiction of the government or taxing authority
imposing such tax and the Agent or such Funding Party (other than a
connection arising solely from the Agent or such Funding Party having
executed, delivered or performed its obligations or received a payment
under, or enforced, this Master Agreement or any other Operative Document),
provided that this exclusion shall not apply to the extent set forth in
Section 7.5(b) or to Taxes described in clause (B) of Subsection 7.4(b)(i)
(all such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions and withholdings being hereinafter called "Withholding Taxes").
-----------------
If any Withholding Taxes are required to be withheld from any amounts
payable to the Agent or any Funding Party hereunder or under any other
Operative Document, the amounts so payable to the Agent or such Funding
Party (so long as such Funding Party is in compliance with Section 7.5(e),
--------------
as appropriate) shall be increased to the extent necessary to yield to the
Agent or such Funding Party (after payment of all Withholding Taxes)
interest or any such
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other amounts payable hereunder at the rates or in the amounts specified in
the Operative Documents. Whenever any Withholding Taxes are payable by the
Lessee, as promptly as possible thereafter the Lessee shall send to the
Agent for its own account or for the account of such Funding Party, as the
case may be, a certified copy of an original official receipt received by
such Lessee showing payment thereof. If the Lessee fails to pay any
Withholding Taxes when due to the appropriate taxing authority or fails to
remit to the Agent the required receipts or other required documentary
evidence, each Lessee, jointly and severally, shall indemnify the Agent and
the Funding Parties for any incremental taxes, interest or penalties that
may become payable by the Agent or any Funding Party as a result of any such
failure. The agreements in this subsection shall survive the termination of
this Master Agreement and the payment of the Notes and all other amounts
payable under the Operative Documents.
(e) Tax Forms. If any Funding Party or assignee of a Funding Party
---------
is organized under the laws of any jurisdiction other than the United States
or any State thereof, then such Funding Party or assignee, as applicable,
shall (as a condition precedent to acquiring any interest in, to or under
the Leased Property or the Operative Documents from a Funding Party and a
continuing obligation of each such Funding Party) (i) furnish to Lessee two
valid, duly completed, original copies of Internal Revenue Service Form
W-8BEN or W-8ECI or successor applicable form, properly and duly executed,
certifying in each case that such party is entitled to receive payments
pursuant to the Operative Documents without deduction or withholding of
United States federal income tax and is a foreign person thereby entitled to
an exemption from United States backup withholding taxes, and any such
additional form (or any successor form or forms required) upon the
expiration or obsolescence of any previously delivered form and (ii) comply
from time to time with all applicable United States laws and regulations
with regard to such withholding tax exemptions. By its acceptance of any
interest in, to or under the Leased Property or the Operative Documents from
a Funding Party, each assignee shall be deemed bound by the provisions set
forth in this Subsection 7.5(e). Subject to Subsection 7.5(b), no Funding
Party or assignee that fails to comply with the requirements of this
Subsection 7.5(e) shall be entitled to the benefit of any tax indemnity
under Section 7.4.
(f) Indemnity. The Lessee agrees to indemnify each Funding Party
---------
and to hold each Funding Party harmless on an After-Tax Basis from any loss
or expense which such Funding Party may sustain or incur as a consequence of
(i) default by the Lessee in payment when due of the principal amount of or
interest on any LIBOR Advance, (ii) default by the Lessee in making a
borrowing or conversion into or continuation of LIBOR Advances after the
Lessee or the Construction Agent has given (or is deemed to have given) a
notice in accordance with this Master Agreement, (iii) default by the Lessee
in making a borrowing of, conversion into or continuation of LIBOR Advances
after or the Construction Agent or the Lessee has given a notice requesting
the same in accordance with the provisions of this Master Agreement, (iv)
default by the Lessee in making any prepayment of LIBOR Advances after the
Lessee has given a notice thereof in accordance with the provisions of the
Operative Documents or (v) the making of a prepayment, payment or
conversion, of LIBOR Advances on a day which is not the last day
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of a Rent Period with respect thereto, including, without limitation, in
each case, any such loss (other than non- receipt of the Applicable Margin
or, without duplication, anticipated profits) or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained (it being understood that any
such calculation will be made on notional amounts as the Funding Parties are
not required to show that they matched deposits specifically). A certificate
as to any additional amounts payable pursuant to this subsection submitted
by such Funding Party, through the Agent, to the Lessee in good faith shall
be conclusive in the absence of manifest error. This covenant shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable under the Operative Documents.
(g) Action of Affected Funding Parties. Each Funding Party agrees
----------------------------------
to use reasonable efforts (including reasonable efforts to change the
booking office for its Loans) to avoid or minimize any illegality pursuant
to Section 7.5(a) or any amounts which might otherwise be payable pursuant
--------------
to Section 7.5(c) or (d); provided, however, that such efforts shall not
-------------- --- --------
cause the imposition on such Funding Party of any additional costs or legal
or regulatory burdens deemed by such Funding Party to be material and shall
not be deemed by such Funding Party to be otherwise contrary to its
policies. In the event that such reasonable efforts are insufficient to
avoid all such illegality or all amounts that might be payable pursuant to
Section 7.5(c) or (d), then such Funding Party (the "Affected Funding
-------------- --- ----------------
Party") shall use its reasonable efforts to transfer to any other Funding
-----
Party (which itself is not then an Affected Funding Party) its Loans and
Commitment, subject to the provisions of Section 6.2; provided, however,
----------- --------
that such transfer shall not be deemed by such Affected Funding Party, in
its sole discretion, to be disadvantageous to it or contrary to its
policies. In the event that the Affected Funding Party is unable, or
otherwise is unwilling, so to transfer its Loans and Commitment, the Lessee
may designate an alternate lender (reasonably acceptable to the Agent) to
purchase the Affected Funding Party's Loans and Commitment, at par and
including accrued interest, and, subject to the provisions of Section 6.2,
-----------
the Affected Funding Party shall transfer its Commitment to such alternate
lender and such alternate lender shall become a Funding Party hereunder. Any
fee payable to the Agent pursuant to Section 6.2 in connection with such
-----------
transfer shall be for the account of the Lessee.
SECTION 7.6 End of Term Indemnity. In the event that at the end of the
---------------------
Lease Term for the Leased Property: (i) the Lessee elects the option set
forth in Section 14.6 of the Lease, and (ii) after the Lessor receives the
------------
sales proceeds from the Leased Property under Section 14.6 or 14.7 of the
------------ ----
Lease, together with the Lessee's payment of the Recourse Deficiency Amount,
the Lessor shall not have received the entire Lease Balance, then, within 90
days after the end of the Lease Term, the Lessor or the Agent may obtain, at
the Lessee's sole cost and expense, a report from the Appraiser (or, if the
Appraiser is not available, another appraiser reasonably satisfactory to the
Lessor or the Agent, as the case may be, and approved by the Lessee, such
approval not to be unreasonably withheld) in form and substance satisfactory
to the Lessor and the Agent (the "Report") to establish the reason for any
------
decline in value of the Leased Property from the Lease
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Balance. The Lessee shall promptly reimburse the Lessor for the amount equal
to such decline in value to the extent that the Report indicates that such
decline was due to:
(w) extraordinary use, failure to maintain, to repair, to restore,
to rebuild or to replace, failure to comply with all Applicable Laws,
failure to use, workmanship, method of installation or removal or
maintenance, repair, rebuilding or replacement, or any other cause or
condition within the power of the Lessee to control or effect resulting
in the Building failing to be of the type and quality contemplated by
the Appraisal (excepting in each case ordinary wear and tear), or
(x) any Alteration made to, or any rebuilding of, the Leased Property
or any part thereof by the Lessee, or
(y) any restoration or rebuilding carried out by the Lessee or any
condemnation of any portion of the Leased Property pursuant to Article X
of the Lease, or
(z) any use of the Leased Property or any part thereof by the
Lessee other than as permitted by the Lease, or any act or omission
constituting a breach of any requirement, condition, restriction or
limitation set forth in the Deed or the Purchase Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Survival of Agreements. The representations, warranties,
----------------------
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Master Agreement and any of
the Operative Documents, the transfer of the leasehold interest in the Land
to the Lessor as provided herein (and shall not be merged into the Bond
Lease), any disposition of any interest of the Lessor in the Leased
Property, the purchase and sale of the Notes, payment therefor and any
disposition thereof and shall be and continue in effect notwithstanding any
investigation made by any party hereto or to any of the other Operative
Documents and the fact that any such party may waive compliance with any of
the other terms, provisions or conditions of any of the Operative Documents.
Except as expressly set forth in the Operative Documents, including, without
limitation, as set forth in Article VII hereof and in Section 17.17 of the
-----------
Lease, the representations, warranties, covenants and agreements of the
parties provided for in the Operative Documents shall terminate upon the
termination or expiration of the Operative Documents.
SECTION 8.2 Notices. Unless otherwise specified herein, all notices,
-------
requests, demands or other communications to or upon the respective parties
hereto shall be addressed to such parties at the addresses therefor as set
forth in Schedule 8.2, or such other address as any such party shall specify
------------
to the other parties hereto, and shall be deemed to have been given (i) the
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Business Day after being sent, if sent by overnight courier service; (ii)
the Business Day received, if sent by messenger; (iii) the day sent, if sent
by facsimile and confirmed electronically or otherwise during business hours
of a Business Day (or on the next Business Day if otherwise sent by
facsimile and confirmed electronically or otherwise); or (iv) three Business
Days after being sent, if sent by registered or certified mail, postage
prepaid.
SECTION 8.3 Counterparts. This Master Agreement may be executed by the
------------
parties hereto in separate counterparts (including by facsimile), each of
which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 8.4 Amendments. No Operative Document nor any of the terms
----------
thereof may be terminated, amended, supplemented, waived or modified with
respect to any Lessee or any Funding Party, except (a) in the case of a
termination, amendment, supplement, waiver or modification to be binding on
the Lessee, with the written agreement or consent of the Lessee, and (b) in
the case of a termination, amendment, supplement, waiver or modification to
be binding on the Funding Parties, with the written agreement or consent of
the Required Funding Parties; provided, however, that Sections 8.8 and 8.13
--------
may not be terminated, amended, supplemented, waived or modified without the
prior written agreement or consent of SunTrust Equitable Securities
Corporation, and provided, further, that
-------- -------
(x) notwithstanding the foregoing provisions of this Section 8.4 or
-----------
clause (y) below, the consent of each Funding Party affected thereby
shall be required for any amendment, modification or waiver directly:
(i) modifying any of the provisions of this Section 8.4,
-----------
changing the definition of "Required Funding Parties" or "Required
------------------------ --------
Lenders", or increasing the Commitment of such Funding Party;
-------
(ii) amending, modifying, waiving or supplementing any of the
provisions of Section III of the Loan Agreement or the
-----------
representations of such Funding Party in Section 4.3 or 4.4 or the
----------- ---
covenants of such Funding Party in Article VI of this Master
----------
Agreement;
(iii) reducing any amount payable to such Funding Party under
the Operative Documents or extending the time for payment of any
such amount, including, without limitation, any Rent, any Funded
Amount, any fees, any indemnity, the Lease Balance, any Funding
Party Balance, the Recourse Deficiency Amount, interest or Yield;
or
(iv) consenting to any assignment of the Lease or the extension
of the Lease Term, releasing any of the collateral assigned to the
Agent
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and the Lenders pursuant to any Mortgage and any Assignment of Lease
and Rents (but excluding a release of any rights that the Lenders
may have in the Leased Property, or the proceeds thereof as
contemplated in the definition of "Release Date"), releasing the
Lessee from its obligations in respect of the payments of Rent and
the Lease Balance, releasing any Lessee from its obligations under
the Operative Documents or changing the absolute and unconditional
character of any such obligation; and
(y) no such termination, amendment, supplement, waiver or
modification shall, without the written agreement or consent of the
Lessor, the Agent and the Required Lenders, be made to the Lease or the
Security Agreement and Assignment; and
(z) subject to the foregoing clauses (x) and (y), so long as no
----------- ---
Event of Default has occurred and is continuing, the Lessor, the Agent
and the Lenders may not amend, supplement, waive or modify any terms of
the Loan Agreement, the Notes, the Mortgages and the Assignments of
Lease and Rents without the consent of the Lessee (such consent not to
be unreasonably withheld or delayed); provided that in no event may any
--------
Operative Document be amended so as to increase the obligations of any
Lessee, or deprive any Lessee of any rights thereunder, without the
written consent of the Lessee.
SECTION 8.5 Headings, etc. The Table of Contents and headings of the
-------------
various Articles and Sections of this Master Agreement are for convenience
of reference only and shall not modify, define, expand or limit any of the
terms or provisions hereof.
SECTION 8.6 Parties in Interest. Except as expressly provided herein,
-------------------
none of the provisions of this Master Agreement is intended for the benefit
of any Person except the parties hereto and their respective successors and
permitted assigns.
SECTION 8.7 GOVERNING LAW. THIS MASTER AGREEMENT HAS BEEN DELIVERED IN,
-------------
AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
SECTION 8.8 Expenses. Whether or not the transactions herein
--------
contemplated are consummated, the Lessee agrees to pay, as Supplemental
Rent, all actual, reasonable and documented out-of-pocket costs and expenses
of the Lessor, the Agent, the Lenders, SunTrust Equitable Securities
Corporation and the Bond Trustee in connection with the preparation,
execution and delivery of the Operative Documents and the documents and
instruments referred to therein and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees and
disbursements of (i) counsel to the Bond Trustee (whose fees shall not
exceed $5,000 in connection with the initial preparation, execution and
delivery of the Operative
-74-
Documents and the documents and instruments referred to therein), and (ii)
McGuireWoods LLP, but not including any fees and disbursements for any other
outside counsel representing any Lender) and of the Lessor, the Agent, the
Lenders, SunTrust Equitable Securities Corporation and the Bond Trustee in
connection with endeavoring to enforce the Operative Documents and the
documents and instruments referred to therein (including, without
limitation, the reasonable fees actually incurred and disbursements of
counsel for the Lessor, the Agent, the Lenders and the Bond Trustee). All
references in the Operative Documents to "attorneys' fees" or "reasonable
attorneys fees" shall mean reasonable attorneys' fees actually incurred,
without regard to any statutory definition thereof. During the Construction
Term, the foregoing costs and expenses of the Lessor, the Agent, the
Lenders, SunTrust Equitable Securities Corporation and the Bond Trustee may
be paid using the proceeds of Advances (which costs and expenses shall be
included in the Construction Budget); thereafter, all such costs and
expenses shall be paid by the Lessee.
SECTION 8.9 Severability. Any provision of this Master Agreement that
------------
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 8.10 Liabilities of the Funding Parties. No Funding Party shall
----------------------------------
have any obligation to any other Funding Party or to Lessee with respect to
the transactions contemplated by the Operative Documents except those
obligations of such Funding Party expressly set forth in the Operative
Documents or except as set forth in the instruments delivered in connection
therewith, and no Funding Party shall be liable for performance by any other
party hereto of such other party's obligations under the Operative Documents
except as otherwise so set forth. No Lender shall have any obligation or
duty to the Lessee, any other Funding Parties or any other Person with
respect to the transactions contemplated hereby except to the extent of the
obligations and duties expressly set forth in this Master Agreement or the
Loan Agreement.
SECTION 8.11 Submission to Jurisdiction; Waivers. Each party hereto
-----------------------------------
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Master Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Georgia sitting in Xxxxxx County, the courts of the United States
of America for the Northern District of Georgia, and appellate courts from
any thereof;
(b) consents that any such action or proceedings may be brought to
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead
or claim the same;
-75-
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such party
at its address set forth in Schedule 8.2 or at such other address of which
------------
the other parties hereto shall have been notified pursuant to Section 8.2;
-----------
and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law.
SECTION 8.12 Liabilities of the Agent. The Agent shall have no duty,
------------------------
liability or obligation to any party to this Master Agreement with respect
to the transactions contemplated hereby except those duties, liabilities or
obligations expressly set forth in this Master Agreement or the Loan
Agreement, and any such duty, liability or obligations of the Agent shall be
as expressly limited by this Master Agreement or the Loan Agreement, as the
case may be. All parties to this Master Agreement acknowledge that the Agent
is not, and will not be, performing any due diligence with respect to
documents and information received pursuant to this Master Agreement or any
other Operative Agreement including, without limitation, any Environmental
Audit, Title Policy or survey. The acceptance by the Agent of any such
document or information shall not constitute a waiver by any Funding Party
of any representation or warranty of any Lessee even if such document or
information indicates that any such representation or warranty is untrue.
SECTION 8.13 Role of SunTrust Equitable Securities Corporation. Each
-------------------------------------------------
party hereto acknowledges hereby that it is aware of the fact that SunTrust
Equitable Securities Corporation ("SESC") is acting as an "arranger" with
respect to the transactions contemplated by the Operative Documents and
acknowledge and agree that neither SESC nor any of its Affiliates (including
SunTrust Bank) has made any representations or warranties concerning, and
that they have not relied on SESC as to, the tax, accounting or legal
characterization or validity of the Operative Documents or any aspect of the
transactions contemplated thereby. The parties acknowledge and agree that
SESC has no duties, express or implied, under the Operative Documents in its
capacity as "arranger". The parties further agree that Section 2.4, 8.4,
8.8, 8.10 and this Section 8.13 are for the express benefit of SESC, and
SESC shall be entitled to rely thereon as if it were a party hereto.
-76-
IN WITNESS WHEREOF, the parties hereto have caused this Master
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXXX X. XXXXX & CO., L.P., as Lessee,
Construction Agent and Guarantor
By: EDJ Holding Company, Inc., its General
Partner
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
S-1
MASTER AGREEMENT
ATLANTIC FINANCIAL GROUP, LTD.
(registered to do business in Missouri as
Atlantic Financial Group, L.P.),
as Lessor
By: Atlantic Financial Managers, Inc., its
General Partner
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
S-2
MASTER AGREEMENT
SUNTRUST BANK, as Agent
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
S-3
MASTER AGREEMENT
SUNTRUST BANK, as Lender
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
S-4
MASTER AGREEMENT
BRANCH BANKING AND TRUST
COMPANY, as Lender
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
S-5
MASTER AGREEMENT
The Xxxxx Financial Companies, L.L.L.P. ("JFC") joins in the foregoing
Master Agreement for the purpose of acknowledging the terms, conditions and
provisions thereof and hereby covenants and agrees to observe, perform and
comply with all of the obligations of JFC thereunder.
THE XXXXX FINANCIAL COMPANIES,
L.L.L.P.
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
S-6
MASTER AGREEMENT
SCHEDULE 2.2
Amount of Each Funding Party's Commitment
Lessor Commitment Percentage: 3.5%
Lessor Commitment $840,000.00
Lender Commitment Percentages:
SunTrust Bank ____%
Branch Banking and Trust Company ____%
Lender Commitments: $23,160,000.00
SunTrust Bank $______________
Branch Banking and Trust Company $______________
SCHEDULE 4.1(a)(i)
Indebtedness of Lessee
BANK LOANS:
The Lessee borrows from banks on a short-term basis primarily to finance
customer margin balances and inventory securities. As of June 30, 2001, the
Lessee had bank lines of credit aggregating $1,145,000 of which $1,095,000
was through uncommitted facilities. Actual borrowing availability is
primarily based on the value of securities owned and customers' margin
securities. At June 30, 2001, collateral, with a market value of $1,330,723,
was available to support secured bank loans. Bank loans outstanding
approximate their fair value.
LIABILITIES SUBORDINATED TO CLAIMS OF GENERAL CREDITORS:
Liabilities subordinated to the claims of general creditors consist of:
June 30, 2001
-------------
Capital notes, 8.18%, due in annual installments of
$10,500 commencing on September 1, 2000, with a final
installment on September 1, 2008. $ 84,000
Capital notes, 7.95%, due in annual installments of
$10,225 with a final installment of $10,200 on
April 15, 2006. 51,100
Capital notes, 8.96%, due in annual installments of
$6,000 with a final installment on May 1, 2002. 6,000
Capital notes, with rates ranging from 7.51% to 7.79%
due in annual installments commencing on August 15,
2005 with a final installment on August 15, 2011. 75,000
--------
$216,100
========
Required annual principal payments, as of June 30, 2001, are as follows:
Year Ending Principal
Last Friday of June Payment
------------------- -------
2002 $ 26,725
2003 20,725
2004 20,725
2005 20,725
2006 43,225
Thereafter 84,000
--------
$216,100
SCHEDULE 4.1(a)(ii)
Subsidiaries
[TO BE ATTACHED]
SCHEDULE 4.1(d)(v)
Pending Investigations or Inquiries
1. Internal Controls Investigation. (SEC File No. MC-2193) Over recent
-------------------------------
periods, the New York Stock Exchange, Inc. had informally expressed
some concerns over certain internal control systems within the Company
which resulted in inappropriate conversion of client assets. During the
most recent regularly scheduled examination by the Chicago Regional
Office of the Securities and Exchange Commission, the same issues were
noted. On December 15, 1998, the Securities and Exchange Commission
through correspondence summarized its concerns and requested a summary
of the Company's corrective action with copies to be noted to the New
York Stock Exchange and the National Association of Securities Dealers.
On January 5, 1999, the Company issued its response summarizing
corrective actions. Upon receipt of this correspondence on January 15,
1999, the Securities and Exchange Commission issued a letter for the
Company urging it to give immediate attention to the internal control
issues. Subsequently, on January 26, 1999, a telephone conference call
was conducted between representatives of the Securities and Exchange
Commission and the Company reviewing the changes in internal control
systems.
On November 10, 1999, a formal document request for certain items
relating to internal controls and conversion cases was issued, for
which responsive information has been issued. Since November 10, 1999
substantial discovery has been conducted and the Company has been
notified that the staff will recommend to the Commission that an
enforcement action be instituted regarding instances that occurred
during 1996 through early 1998. On March 26, 2001 the Company filed a
Xxxxx Submission outlining its reasons why such an enforcement action
is not warranted.
2. Callable Certificate of Deposit Investigations/Litigation. Another case
---------------------------------------------------------
was initiated by the New York Stock Exchange ("NYSE"), against the
Company alleging deficiencies with the distribution of certain
certificates of deposits ("CDs") by the Company during 1994 through
1997. A definitive settlement of the matter was reached wherein the
Company stipulated to certain findings and agreed to a censure and fine
of $200,000 along with certain procedural undertakings.
Over the past several months various regulatory bodies, including the
Securities and Exchange Commission, Minnesota Attorney General, Texas
Securities Board, Texas Insurance Commission, Oklahoma Department of
Securities, Arkansas Securities Department, Indiana Securities Division
and the Office of the Secretary of the Massachusetts Commonwealth, have
launched investigations of the Company's sales of CDs through the
present. Moreover, during this same time period, adverse publicity in
national media include Newsweek, NBC Nightly News, and the Wall
-------- ----
Street Journal, have appeared criticizing the sale of such CDs by
--------------
brokers. In addition to the foregoing, an action was filed on January
12, 2001 against the Company and eleven other brokerage firms seeking
restitution and disgorgement and injunctive relief concerning sales of
callable CDs under a state statute governing unfair or deceptive
business practices. No responsive answer has been filed on behalf of
the Company and no discovery has been undertaken. Although the scope of
intended purchasers of this action is uncertain, there are presently
approximately $3 billion of outstanding forms of callable CDs sold by
the Company. (Xxxx X. Xxxxxxx, On Behalf of the General Public v.
---------------------------------------------------
Xxxxxxx Xxxxx Financial Services, Inc., et al; Cause No. 318075,
---------------------------------------------
Superior Court of the State of California, City and County of San
Francisco).
In addition to the foregoing, a purported class action against certain
bank issuers of callable CDs was recently filed. (Xxxxxxx Xxxxxx-Xxxxxx,
----------------------
et al. v. ABN Amro Bank N.V., et al. Civil Action No. 01L493;
------------------------------------
Circuit Court of the 3rd Judicial Circuit of Madison County,
Illinois). Although the Company is not a named defendant to this
case, one of the class representatives purchased a CD from the
Company and substantial reference to the Company's settlement with
the NYSE discussed above is contained therein.
SCHEDULE 4.1(m)
Environmental Matters
None.
SCHEDULE 4.1(u)(i)
Leases
[TO BE ADDED]
SCHEDULE 5.2(a)(i)
Existing Permitted Liens
Those liens encumbering the property located at 0000 X. Xxxxx Xxxxxxx,
Xxxxx, Xxxxxxx and created in connection with the transactions contemplated
by that certain Master Agreement dated as of November 30, 2000, among Xxxxxx
X. Xxxxx & Co., L.P., as Lessee, Construction Agent and Guarantor, Atlantic
Financial Group, Ltd., as Lessor, SunTrust Bank and certain financial
institutions parties thereto, as Lenders, and SunTrust Bank, as Agent, and
joined in by the Xxxxx Financial Companies, L.L.L.P.
Those liens created to perfect purchase money indebtedness which will
encumber the property located at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx to
the extent Lessee elects to complete the purchase of such real property
pursuant to a non-binding letter of intent between Lessee and Motorola, Inc.
dated August 8, 2001.
SCHEDULE 5.2(a)(xiv)
Existing Options, Etc.
JFC and Subsidiaries has the right to purchase the building at 0000 Xxxxxx
Xxxxxxxx Xxxxx, Xx. Xxxxx, XX 00000, in the 20th year of the lease, or if
the building is offered for sale during the lease term which commenced
January 1, 2002. Additionally, JFC and Subsidiaries has the option to
purchase the adjacent buildings at 00000 Xxxxxxxxxxx Xxxxx and 00000
Xxxxxxxxxxx Xxxxx if and when the space is offered.
JFC and Subsidiaries has the right to purchase the building at 000 Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, XX 00000, between the 25th month and 31st month of the
lease which commenced March 1, 2000.
JFC and Subsidiaries has the right to purchase the building at 0000 X. Xxxxx
Xxxxxxx, Xxxxx, Xxxxxxx 00000, at the end of the initial five year lease
term which commenced on November 30, 2000, and at the end of each of the
five year lease renewals.
Xxxxxx X. Xxxxx & Co., L.P. will have the right to purchase an interest in a
ground lease, building and personal property located at 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx, Xxxxxxx following a sixty (60) day due diligence period and
a thirty (30) day closing period following acceptance of an offer dated
August 8, 2001 from the seller of such property.
SCHEDULE 5.2(d)
Contingent Obligations
CONTINGENCIES:
Lessee's guarantee of Xxxxxx Xxxxx Limited (UK) GBP 1,000,000 credit
facility with the Royal Bank of Scotland.
Lessee's guarantee of Xxxxxx Xxxxx Limited (UK) $500,000 USD foreign
exchange line with Xxxxx Fargo Bank, N.A., currently under negotiation.
Various legal actions are pending against the Lessee with certain cases
claiming substantial damages. These actions are in various stages and the
results of such actions cannot be predicted with certainty. In the opinion
of management, after consultation with legal counsel, the ultimate
resolution of these actions is not expected to have a material adverse
impact on the Lessee's results of operations or financial condition.
SCHEDULE 8.2
Addresses for Notices
Lessee: Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Lessor: Atlantic Financial Group, Ltd.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Agent for Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Mail Code 1928
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Dash
JFC: The Xxxxx Financial Companies, L.L.L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxx
EXHIBIT A
TO MASTER AGREEMENT
FORM OF FUNDING REQUEST
TO: The Lessor, the Agent and each Lender (as defined in the Master Agreement
referred to below)
Reference is hereby made to the Master Agreement dated as of September 18,
2001 (as heretofore amended, the "Master Agreement") among Xxxxxx X. Xxxxx &
----------------
Co., L.P., as Lessee, Guarantor and Construction Agent, Atlantic Financial
Group, Ltd. (registered to do business in Missouri as Atlantic Financial
Group, L.P.), as Lessor, SunTrust Bank and certain financial institutions
parties thereto, as Lenders, and SunTrust Bank, as Agent, and joined in by
The Xxxxx Financial Companies, L.L.L.P. Capitalized terms not otherwise
defined are used herein as defined in the Master Agreement.
The undersigned, as Construction Agent, hereby notifies you that it
requests a Funding in the amount of $ on [INSERT REQUESTED
---------------
FUNDING DATE] in respect of the Leased Property [owing in respect of the
Land, if applicable, and development, hard and/or soft transaction and
closing costs in respect of the Leased Property or in respect of the
purchase of personal property to be used in connection with the Leased
Property (collectively, "Project Costs")] [amounts that are due or will
-------------
become due within 30 days from the date hereof to third parties in respect
of the Construction, or amounts paid by the Construction Agent to third
parties in respect of the Construction for which the Construction Agent has
not been previously reimbursed]. The undersigned, as Construction Agent,
requests that the Funding be [a LIBOR Advance with a Rent Period of
----
months] [a Base Rate Advance] [allocated as follows: $ to a LIBOR
-----------
Advance with a Rent Period of months and $ to a Base Rate
--- ---------------
Advance].
In connection with such requested Funding, the undersigned, hereby
represents and warrants to you as follows:
1. on the requested Funding Date the representations and warranties of
the Lessee contained in Section 4.1 of the Master Agreement shall
be true and correct in all material respects on and as of such
Funding Date as though made on and as of such Funding Date, except
to the extent such representations or warranties relate solely to
an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects on and as
of such earlier date;
2. there shall not have occurred any Event of Default or Potential Event
of Default;
3. the amount of the requested Funding represents costs of Construction
and transaction permitted to be funded pursuant to the Operative
Documents as more
A-1
particularly described as set forth on Schedule 1 attached hereto and
----------
made a part hereof;
4. the amount expended by the Construction Agent to date for the
construction of the Building does not exceed the amount budgeted to
be expended for the percentage of construction completed to date
and, in the good faith judgment of the undersigned, the
construction of the Building will be completed within the
Construction Budget;
5. there has not occurred may event that could reasonably be expected
to have a Material Adverse Effect since , 2001;
------------
6. no Event of Default, Potential Event of Default, Event of Loss, or
Event of Taking has occurred, and no action is pending or, to the
knowledge of the undersigned, threatened by a Governmental
Authority to initiate a Condemnation or an Event of Taking with
respect to the Leased Property; and
7. all of the conditions precedent to such Funding set forth in
Article III of the Master Agreement have been satisfied, or will be
-----------
satisfied or waived on or prior to the requested Funding Date.
Please wire transfer the proceeds of the Funding to .
--------------------
The undersigned has caused this Funding Request to be executed and
delivered by its duly authorized officer this day of ,
------- --------------
2001 [TO BE DELIVERED NOT LATER THAN 12:00 NOON, THREE (3) BUSINESS DAYS
PRIOR TO THE REQUESTED FUNDING DATE].
XXXXXX X. XXXXX & CO., L.P.
By: EDJ Holding Company, Inc., its sole general
partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-2
SCHEDULE 1
TO FUNDING REQUEST
Description of Costs
--------------------
EXHIBIT B
TO MASTER AGREEMENT
FORM OF ASSIGNMENT OF LEASE AND RENTS
This instrument prepared by and when recorded return to:
McGuireWoods LLP, Xxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, Esquire
============================================================================
ASSIGNMENT OF LEASE
AND RENTS
Dated as of September 18, 2001
between
ATLANTIC FINANCIAL GROUP, LTD.
(registered to do business in Missouri as Atlantic Financial Group, L.P.),
as Lessor and Assignor
and
SUNTRUST BANK,
as Agent and Assignee
St. Louis County, Missouri
============================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. COLLATERAL ASSIGNMENT OF LEASE AND GUARANTY AGREEMENT..... 2
SECTION 2. ASSIGNMENT AS COLLATERAL SECURITY......................... 3
SECTION 3. PAYMENTS UNDER LEASE...................................... 3
SECTION 4. POWER OF ATTORNEY IN RESPECT OF LEASE..................... 4
SECTION 5. ASSIGNEE DESIGNATED RECIPIENT............................. 4
SECTION 6. ALLOCATION PURSUANT TO LOAN AGREEMENT..................... 4
SECTION 7. IRREVOCABILITY; SUPPLEMENTAL INSTRUMENTS.................. 4
SECTION 8. AMENDMENTS OR TERMINATION OF LEASE........................ 5
SECTION 9. LESSEE'S CONSENT AND AGREEMENT............................ 5
SECTION 10. REMEDIES CUMULATIVE....................................... 5
SECTION 11. MISCELLANEOUS............................................. 5
Consent and Agreement of Lessee
EXHIBITS
--------
EXHIBIT A - Description of Land
THIS ASSIGNMENT OF LEASE AND RENTS dated as of September 18, 2001 (as
the same may be amended, supplemented or otherwise modified from time to
time, this "Assignment Agreement"), is between ATLANTIC FINANCIAL GROUP,
--------------------
LTD., a Texas limited partnership (registered to do business in Missouri as
Atlantic Financial Group, L.P.), as Lessor and Assignor (the "Lessor"),
------
having an office at 0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
and SUNTRUST BANK, a Georgia banking corporation, as Agent for the benefit
of the hereinafter described Lenders (the "Assignee"), having an office at
--------
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxx 00000.
Capitalized terms not otherwise defined in this Assignment Agreement
shall have the respective meanings assigned thereto in the Appendix A to the
----------
Master Agreement (as amended, supplemented or otherwise modified from time
to time, the "Master Agreement"), dated as of the date hereof among Xxxxxx
------ ---------
X. Xxxxx & Co., L.P., a Missouri limited partnership, as Lessee,
Construction Agent and Guarantor (the "Lessee"), the Lessor, the Assignee,
------
as Agent, and the Lenders parties thereto (the "Lenders") and joined in by
-------
The Xxxxx Financial Companies, L.L.L.P., and the rules of interpretation set
forth in Appendix A shall apply to this Assignment Agreement. Copies of the
----------
Master Agreement, the Lease (as defined below) and the other Operative
Documents (as defined in the Master Agreement) are on file at the office of
the Agent.
RECITALS:
Pursuant to a Master Lease Agreement, dated as of the date hereof,
between the Lessor and the Lessee (as restated, amended, supplemented or
otherwise modified from time to time, the "Lease"), the Lessor has leased to
-----
the Lessee (a) the land described on Exhibit A attached hereto and
---------
incorporated herein, together with the following appurtenant rights (the
"Appurtenant Rights"): (i) all agreements, easements, rights of way or use,
------------------
rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments, reversions, remainders, water rights and other rights and
benefits at any time belonging or pertaining to the land or the improvements
thereon, including, without limitation, the use of any streets, ways,
alleys, vaults or strips of land adjoining, abutting, adjacent or contiguous
to the land and (ii) all permits, licenses and rights, whether or not of
record, appurtenant to the land (such land and Appurtenant Rights being
referred to as the "Land") and (b) the buildings, structures and
----
improvements located or to be located on the Land, along with all fixtures
used or useful in connection with the operation thereof or of the Land,
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 and all Alterations (including all
restorations, repairs, replacements and rebuilding of such buildings,
improvements and structures) thereto (the "Building"), and all Equipment
(the Land, the Building and the Equipment being referred to hereinafter as
the "Leased Property").
---------------
The Lessor has entered into the Master Agreement with the Assignee, the
Lessee, the Lenders and the Assignee providing, among other things, for the
commitment of the Lenders to assist in financing or refinancing, as
applicable, the Lessor's acquisition of the Land and the construction of the
Building thereon, and the acquisition and installation of the Equipment, by
making Loans to be evidenced by the respective Notes. Such Loans as
evidenced by the Notes
bear interest on the unpaid principal amount thereof from time to time
outstanding at the interest rate per annum determined as provided in and
--- -----
payable as specified in the Loan Agreement.
NOW, THEREFORE, the Lessor hereby agrees for the benefit of Assignee as
follows:
Section 1. Collateral Assignment of Lease and Guaranty Agreement. The
-----------------------------------------------------
Lessor, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged,
and as security for the payment of the principal of, and all interest and
all other sums payable on, the Notes and all other sums payable by the
Lessor to the Assignee under the Loan Agreement or under any of the other
Operative Documents and the performance and observance by the Lessor for the
benefit of the Assignee, as Agent for the Lenders, of the provisions of each
thereof, whether contained therein or incorporated therein by reference, has
assigned, transferred, conveyed and set over, and by these presents does
assign, transfer, convey and set over, to the Assignee, for the benefit of
the Lenders, all of the Lessor's interest in, to and under the Lease and the
Guaranty and all of the Lessor's estate, right, title, interest, claim and
demand as the Lessor under the Lease and the Guaranty, and all existing or
future restatements, amendments, supplements or modifications of the Lease
and Guaranty and any other lease, sublease or other occupancy agreement or
arrangement with respect to the Leased Property;
TOGETHER WITH all rights, powers, privileges, options and other
benefits of the Lessor under the Lease, including, without limitation (a)
---------
the right to receive and collect all Rent, income, revenues, issues,
profits, Loss Proceeds, Awards, bankruptcy claims, liquidated damages,
purchase price proceeds (pursuant to Article XIV of the Lease or otherwise),
-----------
the Recourse Deficiency Amount and other payments, tenders and security
payable to or receivable by the Lessor under the Lease, to be applied in
accordance with Section III of the Loan Agreement; (b) the right, subject to
-----------
the provisions of Section 8.4 of the Master Agreement, to give and withhold
-----------
all waivers, consents, modifications, amendments and agreements under or
with respect to the Lease; (c) the right to give and receive copies of all
notices and other instruments or communications under or pursuant to the
Lease; (d) the right to take such action upon the occurrence and during the
continuance of an Event of Default as shall be permitted by the Lease or any
of the other Operative Documents or by Applicable Law; and (e) the right to
do any and all other things whatsoever which the Lessor or any lessor under
the Lease, as the case may be, is or may be entitled to do thereunder;
TOGETHER WITH the right and power to execute and deliver as agent and
attorney-infact of the Lessor under the Lease an appropriate deed, xxxx of
sale or other instruments of transfer necessary or appropriate for the
conveyance and transfer to the Lessee of the Leased Property pursuant to
Articles XIV or XV of the Lease, and all interests of the Lessor therein and
------------ --
to perform in the name and for and on behalf of the Lessor, as such agent
and attorney-in-fact, any and all other necessary or appropriate acts with
respect to any such purchase, conveyance and transfer;
TOGETHER WITH the right to inspect the Leased Property and all records
relating thereto and to enforce performance or observance by the Lessee of
any of such rights by the exercise of the right to proceed by appropriate
court action or actions, either at law or in equity,
2
to enforce performance by the Lessee of the applicable covenants and terms
or to recover damages for the breach thereof.
TO HAVE AND TO HOLD the same unto the Assignee, for the benefit of the
Lenders, and its successors and assigns forever.
Section 2. Assignment as Collateral Security. The assignment made
---------------------------------
hereby is executed as collateral security, and the execution and delivery of
this Assignment Agreement shall not in any way impair or diminish any
obligations of the Lessor as lessor under the Lease or of the Lessor, the
Assignee, the Guarantor or any Lender under any of the other Operative
Documents, nor impair, affect or modify any of the terms and conditions of
the Notes or the Loan Agreement or any of the other Operative Documents
securing the Notes, nor shall any of the obligations of the Lessor or of any
other Person under any of the Operative Documents (other than the express
obligations of the Assignee) be imposed upon the Assignee, including, but
not limited to, collecting Rent or enforcing performance by the Lessee or
the Guarantor.
Without limiting the generality of the foregoing, the Assignee shall
not be obligated to perform or discharge, nor does the Assignee hereby
undertake to perform or discharge, any obligation, duty or liability of the
Lessor under the Lease, or of the Lessor under any of the other Operative
Documents, or under or by reason of this Assignment Agreement, and the
Lessor does hereby waive any and all liability, loss or damage which may or
might be asserted against the Assignee by reason of any alleged obligations
or undertakings on its or their part to perform or discharge any of the
terms, covenants or agreements contained in the Lease to be performed or
discharged by the Lessor thereunder; provided, however, that if the Assignee
-------- -------
does undertake any such action pursuant to the terms, conditions and
restrictions contained in this Assignment Agreement and the other Operative
Documents, the Lessor shall retain any rights it may have with respect
thereto under the Operative Documents or by law or in equity, and the
Assignee shall be liable for its gross negligence or willful misconduct. It
is further understood and agreed that this Assignment Agreement shall not
operate to (i) place responsibility for the control, care, management or
repair of the Leased Property upon the Assignee, nor for the carrying out of
any of the terms and conditions of the Lease or of any of the other
Operative Documents (except to the extent expressly provided therein), in
any such case binding upon or applicable to the Lessor, or (ii) make the
Assignee responsible or liable for any waste with respect to the Land or the
other Leased Property by the Lessee or any Person other than by the
Assignee, or for any dangerous or defective condition of the Land or the
other Leased Property, or for any negligence of the management, upkeep, or
repair or control of the Land or the other Leased Property resulting in loss
or injury or death to the Lessee, any sublessee, sublessor, licensee,
employee or stranger other than for gross negligence or willful misconduct
by the Assignee.
Section 3. Payments Under Lease. The Lessor will direct the Lessee to
--------------------
pay directly to the Assignee, as and when due pursuant to the Lease, the
Recourse Deficiency Amount, all Basic Rent, all Supplemental Rent and all
payments pursuant to Articles III, X, XIV and XV of the Lease, purchase
------------ - --- --
proceeds or avails, income, Awards, Loss Proceeds, and other sums payable to
the Lessor pursuant to the Lease and the other Operative Documents (but
excluding any indemnity payments or reimbursements to the Lessor from the
Lessee pursuant to the Lease or otherwise).
3
The Assignee may, at its option, although it shall not be obligated to
do so, and without waiving or releasing any obligation or Loan Event of
Default, at any time perform any Lease covenant required to be performed by
the Lessor for and on behalf of the Lessor and may recover any money
advanced for any such purpose from the Lessor on demand, with interest at
the Overdue Rate from the date of advancement; and (b) the Assignee is
authorized to endorse, in the name of the Lessor, any item, howsoever
received by it, representing any payment on or other proceeds (including
Loss Proceeds) of the Lease (including, without limitation, all Basic Rent,
Supplemental Rent, payments pursuant to Articles III, X, XIV and XV of the
------------ - --- --
Lease, purchase proceeds or avails, income, Awards, Loss Proceeds and other
sums paid or payable to the Lessor pursuant to the Lease and the other
Operative Documents) and to endorse and deliver, in the name of the Lessor,
any instrument or other item of the Rent held by the Assignee hereunder, in
connection with the sale or collection of the Rent.
Section 4. Power of Attorney in Respect of Lease. The Lessor does
-------------------------------------
hereby irrevocably constitute and appoint the Assignee its true and lawful
attorney with an interest and full power of substitution, for it and in its
name, place and stead to do any or all of the following (a) ask, demand,
collect, receive, receipt for, xxx for, compound and give acquittance for
all Basic Rent, Supplemental Rent, payments pursuant to Articles III, X, XIV
------------ - ---
and XV of the Lease, purchase proceeds or avails, income, Awards, Loss
--
Proceeds and other sums paid or payable to the Lessor pursuant to the Lease
and the other Operative Documents and other sums which are assigned under
Section 1 hereof, and (b) without limiting the provisions of the foregoing
---------
clause (a) hereof, during the continuance of any Event of Default under the
----------
Lease, xxx for, compound and give acquittance for, or settle, adjust or
compromise any claim for any and all such Rent, purchase proceeds or avails,
income, Awards, Loss Proceeds and other sums which are assigned under
Section 1 hereof as fully as the Lessor could itself do, and in its
---------
discretion to file any claim or take any other action or proceedings, either
in its own name or in the name of the Lessor or otherwise, which the
Assignee may deem necessary or appropriate to protect and preserve the
right, title and interest of the Assignee in and to such Rent and other sums
and security intended to be afforded hereby.
Section 5. Assignee Designated Recipient. The Lessor hereby directs the
-----------------------------
Lessee to deliver or remit directly to the Assignee at its address set forth
in the Master Agreement all Basic Rent, Supplemental Rent, payments pursuant
to Articles III, X, XIV and XV of the Lease, purchase proceeds or avails,
------------ - --- --
income, Awards, Loss Proceeds and other sums payable to the Lessor pursuant
to the Lease and the other Operative Documents by wire transfer of Federal
or other funds current and immediately available to the Assignee on the due
date thereof.
Section 6. Allocation Pursuant to Loan Agreement. Notwithstanding
-------------------------------------
anything contained herein to the contrary, any and all Basic Rent,
Supplemental Rent, payments pursuant to Articles III, X, XIV and XV of the
------------ - --- --
Lease, purchase proceeds or avails, income, Awards, Loss Proceeds and other
sums paid to or received or collected by or on behalf of the Assignee shall
be paid, allocated and distributed pursuant to the terms of, and in the
order of priority provided for in, Section III of the Loan Agreement.
-----------
Section 7. Irrevocability; Supplemental Instruments. The Lessor agrees
----------------------------------------
that the assignment made hereby and the designation and direction to the Lessee
hereinabove set forth are irrevocable, and that the Lessor will not, while
such assignment is in effect or thereafter until
4
the Lessee has received from the Assignee written notice of the termination
of such assignment, make any other assignment, designation or direction
inconsistent therewith, and that any assignment, designation or direction
inconsistent therewith shall be void. The Lessor will from time to time,
upon request of the Assignee, execute all instruments of further assurance
and all such supplemental instruments as the Assignee may reasonably
specify.
Section 8. Amendments or Termination of Lease. Except as otherwise
----------------------------------
permitted under Section 8.4 of the Master Agreement, the Lessor agrees that
-----------
it will not enter into any agreement amending, supplementing, hypothecating,
waiving, discharging or terminating the Lease.
Section 9. Lessee's Consent and Agreement. The consent and agreement by
------------------------------
the Lessee to the provisions of this Assignment Agreement is attached hereto.
Section 10. Remedies Cumulative. Each right, power and remedy of the
-------------------
Assignee provided for in this instrument or now or hereafter existing at law
or in equity or by statute or otherwise shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy provided for
in this Assignment Agreement or in any other Operative Document or now or
hereafter existing at law or in equity or by statute or otherwise and the
exercise or beginning of the exercise by the Assignee or the Lenders of any
one or more of such rights, powers or remedies shall not preclude the
further exercise thereof or the simultaneous or later exercise by the
Assignee or the Lenders of any or all such other rights, powers or remedies.
No failure or delay on the part of the Assignee or the Lenders to exercise
any such right, power or remedy (including, without limitation, the granting
by the Assignee or the Lenders of consent to any action by the Lessor) shall
operate as a waiver thereof. The Lessor stipulates that the remedies at law
in respect of any default or threatened default by the Lessor in the
performance of or compliance with any of the terms of this Assignment
Agreement are not and will not be adequate, and that any of such terms may
be specifically enforced by a decree for specific performance or by an
injunction against the violation of any terms or otherwise.
Section 11. Miscellaneous.
-------------
(a) All notices, requests, offers, consents and other instruments
given pursuant to this Assignment Agreement shall be delivered in accordance
with Section 8.2 of the Master Agreement.
-----------
(b) This Assignment Agreement shall be binding upon, inure to the
benefit of and be enforceable by, the respective successors and assigns of
the parties hereto. The headings to the various paragraphs of this
Assignment Agreement have been inserted for convenience reference only and
shall not modify, define, limit or expand the express provisions of this
Assignment Agreement. Neither this Assignment Agreement nor any provision
hereof may be amended, modified, waived, discharged or terminated orally,
but only by an instrument signed by the parties hereto. If any provision of
this Assignment Agreement or any application thereof shall be invalid or
unenforceable, the remainder of this Assignment Agreement and any other
application of such provision shall not be affected thereby.
5
(c) This Assignment Agreement may be executed in counterparts,
each of which shall be deemed an original, and such counterparts shall
together constitute but one and the same Assignment Agreement. It shall not
be necessary in making proof of this Assignment Agreement to produce or
account for more than one such counterpart signed by the party against which
enforcement of this Assignment Agreement is sought.
(d) THIS ASSIGNMENT AGREEMENT 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 LIEN 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
THE LAND IS LOCATED.
(e) Upon payment in full of all indebtedness secured by this
Assignment Agreement and the Loan Agreement and performance of all other
obligations secured hereby and thereby, this Assignment Agreement and the
Lien created hereby shall terminate and be of no further force or effect.
The Assignee shall, at the Lessee's expense, do, execute, acknowledge and
deliver each and every deed, conveyance, transfer and release necessary or
proper to evidence the release of record of this Assignment Agreement.
(f) Notwithstanding anything to the contrary set forth herein, in
the event of any conflict between any provision of this Assignment Agreement
and the Loan Agreement, the terms and provisions of the Loan Agreement shall
control.
(g) All amounts paid by the Lessee to the Assignee hereunder shall
be fully credited against amounts payable by the Lessee to the Lessor under
the Lease.
(h) To the extent that the Lease and/or the Lease Supplement are
characterized as a deed of trust, mortgage, deed to secure debt, security
agreement or other financing document for any reason (including, without
limitation, as a result of the Lease being treated as a financing
transaction as provided in Article XI of the Lease for purposes other than
----------
accounting purposes), this Assignment Agreement shall be an assignment to
the Assignee of such deed of trust (and all beneficial rights, title and
interests thereunder), mortgage, deed to secure debt, security agreement or
other financing document and of the indebtedness secured thereby to the
Assignee, for the benefit of the Lenders, as security for the Loans made by
the Lenders pursuant to the Loan Agreement and for all amounts owed to the
Lenders by the Lessee or the Lessor pursuant to, and all other Obligations
of the Lessee or the Lessor under, the Operative Documents.
6
IN WITNESS WHEREOF, the Lessor and the Assignee have each caused this
Assignment Agreement to be duly executed and delivered, in its respective
name and behalf, all as of the date and year first above written.
ATLANTIC FINANCIAL GROUP, LTD.,
a Texas limited partnership (registered to do
business in Missouri as Atlantic Financial Group,
L.P.), as Lessor and Assignor
By: Atlantic Financial Managers, Inc.,
a Texas corporation.
its general partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STATE OF TEXAS )
) ss.
COUNTY OF )
----------------
On this day of September, 2001, before me, , a
---- --------------------
Notary Public in and for said County and State, personally appeared
, to me personally known, who being by me duly sworn
---------------------
did say that (s)he is the of Atlantic Financial
-------------------
Managers, Inc., a Texas corporation, and the general partner of Atlantic
Financial Group, Ltd., a Texas limited partnership, and that the foregoing
instrument was signed on behalf of said corporation by authority of its
Board of Directors, and said acknowledged said instrument
----------------
to be the free act and deed of said corporation as general partner of
Atlantic Financial Group, Ltd.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
notarial seal the day and year last above written.
-------------------------------------
Notary Public - State of Texas
My Commission Expires:
---------------
(notary seal)
S-1
ASSIGNMENT OF LEASE AND RENTS
SUNTRUST BANK, a Georgia banking
corporation, as Agent and Assignee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STATE OF GEORGIA )
) ss.
COUNTY OF )
---------------
On this day of September, 2001, before me, ,
--- ----------------------
a Notary Public in and for said County and State, personally appeared
, to me personally known, who being by me duly sworn,
----------------------
did say that (s)he is the of SunTrust Bank, a Georgia
------------------
banking corporation, and that the foregoing instrument was signed on behalf
of said corporation by authority of its Board of Directors, and said
acknowledged said instrument to be the free act and deed of
----------------
said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
notarial seal the day and year last above written.
----------------------------------
Notary Public - State of Georgia
My Commission Expires:
-------------
(notary seal)
S-2
ASSIGNMENT OF LEASE AND RENTS
CONSENT AND AGREEMENT
OF LESSEE
THIS CONSENT AND AGREEMENT dated as of September 18, 2001, by XXXXXX X.
XXXXX & CO., L.P., a Missouri limited partnership (the "Lessee"), for the
------
benefit of SUNTRUST BANK, a Georgia banking corporation, as Agent for the
Lenders (the "Assignee"), to the assignments made under the Assignment of
--------
Lease and Rents, dated as of the date hereof (the "Assignment Agreement")
--------------------
between ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership
(registered to do business in Missouri as Atlantic Financial Group, L.P.),
as assignor (the "Lessor") and the Assignee. Capitalized terms not otherwise
------
defined herein shall have the meanings set forth in the Assignment
Agreement.
1. The Lessee hereby consents to the terms and provisions of the
Assignment Agreement and agrees it will deliver or remit, as and when
payable pursuant to the Operative Documents directly to Assignee, the
Recourse Deficiency Amount, all Basic Rent, all Supplemental Rent and all
payments pursuant to Articles III, X, XIV and XV of the Lease, purchase
------------ - --- --
proceeds or avails, income, Awards, Loss Proceeds and other sums paid or
payable to the Lessor pursuant to the Lease and the other Operative
Documents (but excluding any indemnity payments or reimbursements to the
Lessor from the Lessee pursuant to the Lease or otherwise, and, so long as
no Loan Event of Default has occurred, the Lessor Basic Rent), in each case,
to the extent provided in the Lease, without any offset, deduction, defense,
abatement, suspension, deferment, diminution or reduction for any reason so
that said funds shall at all times be available for payment of interest and
principal due on the Notes, except in each case as expressly provided in the
Lease.
2. Notwithstanding (i) the bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding up or other
proceeding affecting the Lessor under the Lease, (ii) any action with
respect to the Lease which may be taken by any trustee or receiver of the
Lessor, or by any court in such proceeding, and (iii) the exercise by the
Agent or the Lenders of any rights and remedies under the Assignment
Agreement, the Lessee agrees that it will remain obligated under the Lease
in accordance with its terms and that it will not take any action to
terminate (other than pursuant to its express rights under the Lease and the
Master Agreement to do so), rescind or avoid the Lease.
3. To the extent that the Lessee may acquire any indebtedness of the
Lessor or any other party to the Master Agreement, or any claim against the
Lessor or any other party to the Master Agreement, by way of subrogation or
otherwise, all such indebtedness and claims are hereby subordinated and made
fully subject in right of payment thereof to the prior payment in full of
the Notes.
4. In addition to (and not in limitation of) all of the Lessee's
reimbursement and indemnity obligations set forth in the Operative
Documents, the Lessee agrees to pay promptly all reasonable and documented
costs and expenses incurred by the Lessor, pursuant to the Assignment
Agreement, for the release of the Assignment Agreement.
IN WITNESS WHEREOF, the Lessee has caused this Consent and Agreement to
be duly executed and delivered, in its name and behalf, all as of the date
and year first above written.
XXXXXX X. XXXXX & CO., L.P., a Missouri
limited partnership, as Lessee
By: EDJ Holding Company, Inc., a Missouri
corporation, its sole general partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STATE OF MISSOURI )
) ss.
COUNTY OF )
--------------
On this day of September, 2001, before me, ,
---- ------------------------
a Notary Public in and for said County and State, personally appeared
, to me personally known, who being by me duly sworn,
--------------------
did say that (s)he is the of EDJ Holding Company, Inc.,
-------------------
a Missouri corporation, and the general partner of Xxxxxx X. Xxxxx & Co.,
L.P., a Missouri limited partnership, and that the foregoing instrument was
signed on behalf of said corporation by authority of its Board of Directors,
and said acknowledged said instrument to be the free act
----------------
and deed of said corporation as general partner of Xxxxxx X. Xxxxx & Co., L.P.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
notarial seal the day and year last above written.
-------------------------------------
Notary Public - State of Missouri
My Commission Expires:
--------------
(notary seal)
EXHIBIT A
Description of Land
-------------------
[TO BE ADDED]
EXHIBIT C
TO MASTER AGREEMENT
SECURITY AGREEMENT AND ASSIGNMENT
(Construction Contract, Architect's Agreement,
Permits, Licenses and Governmental Approvals, and
Plans, Specifications and Drawings)
FOR VALUE RECEIVED, and to secure the performance by Xxxxxx X. Xxxxx &
Co., L.P., a Missouri limited partnership (the "Assignor"), of all of its
--------
obligations under (i) that certain Master Lease Agreement, by and among the
Assignor and Atlantic Financial Group, Ltd. (registered to do business in
Missouri as Atlantic Financial Group, L.P.) (herein, together with its
successors and assigns, called the "Secured Party"), dated as of the date
-------------
hereof (as the same may be amended, supplemented or otherwise modified from
time to time, and together with all substitutions therefor and replacements
thereof, the "Lease"), (ii) the Construction Agency Agreement, dated as of
-----
the date hereof (as the same may be amended, supplemented or otherwise
modified from time to time, and together with all substitutions therefor and
replacements thereof, the "Construction Agency Agreement"), between the
-----------------------------
Assignor and the Secured Party, and (iii) the other Operative Documents (as
defined in the Lease), the Assignor does hereby quitclaim, sell, assign,
transfer and set over unto the Secured Party, its successors and assigns,
subject to the provisions of the Bond Documents, all of its rights, title
and interests in and to the following (referred to collectively herein as
the "Collateral"):
----------
1. that certain construction contract described on Schedule 1 attached
----------
hereto and made a part hereof (the "Construction Contract");
---------------------
2. that certain architect's agreement described in Schedule 1 attached
----------
hereto and made a part hereof (the "Architect's Agreement");
---------------------
3. all other Construction Documents, including contracts and agreements
relating to the acquisition and installation of the Equipment;
4. all plans, specifications and drawings of any and every kind
heretofore or hereafter prepared for use in connection with the
Construction, and any supplements, amendments or modifications thereto
(collectively, the "Plans and Specifications"); and
------------------------
5. all building and other permits, licenses and governmental approvals
that are necessary or useful to the commencement and completion of the
Construction, or that otherwise relate in any way to the Construction or the
occupancy of the Building, or the acquisition, installation and use of the
Equipment, heretofore or hereafter obtained or applied for by or on behalf
of the Assignor or the Contractor or the Architect or any of the architects,
engineers, vendors, contractors or subcontractors working on any aspect of
the Construction, and any deposits made in connection therewith (referred to
collectively herein as the "Permits");
-------
provided, however, that, except to the extent expressly set forth in the
-------- -------
Consent and Acknowledgment of the General Contractor, the Architect and the
Vendor(s), the Secured Party
shall have no obligation or liability of any kind under or with respect to
the Construction Contract, the Architect's Agreement, and the Construction
Documents, the Permits or the Plans and Specifications, either before or
after its exercise of any rights hereby granted to it, and the Assignor
agrees to save and hold the Secured Party harmless of and from, and to
indemnify it against, any and all such obligations and liabilities,
contingent or otherwise and provided, further, any assignment, pledge or
-------- -------
security in the collateral is subject to any required consents of
Governmental Authorities or public utilities.
This assignment shall inure to the benefit of the Secured Party and its
successors and assigns, and shall be binding upon the Assignor and its
successors and assigns, and shall continue in full force and effect until
all obligations, liabilities and indebtedness of any kind now or hereafter
due the Secured Party from the Assignor under or with respect to the Lease
or any of the other Operative Documents, or which are otherwise secured
hereby, whether now existing or hereafter arising or incurred (collectively,
the "Liabilities"), have been fully paid, performed and satisfied, and until
-----------
Construction is complete with respect to the Leased Property or returned to
the Secured Party pursuant to the Construction Agency Agreement, at which
time this assignment will terminate. The Assignor shall be entitled to the
benefit of, and to exercise all rights under, the Collateral, and the
Secured Party will not exercise any of its rights hereunder, until there
occurs an Event of Default (which term is defined for purposes hereof as it
is defined in the Lease) or a Construction Agency Event of Default (which
term is defined for purposes hereof as it is defined in the Construction
Agency Agreement) or until the Leased Property is returned to the Secured
Party pursuant to the Construction Agency Agreement. The Assignor hereby
acknowledges that the Secured Party will assign all of its rights hereunder
to SunTrust Bank, as agent (the "Agent") for the benefit of the Lenders, to
-----
secure the Loans and agrees that the Agent may exercise all of the rights of
the Secured Party hereunder.
For purposes of completing the Construction following the occurrence of
an Event of Default or a Construction Agency Event of Default, the Secured
Party may, at its option, further assign its right, title and interest in
the Collateral without the consent of the Assignor, the Contractor, the
Architect or any other contractor or vendor, but shall promptly thereupon
notify the Contractor and the Architect, and upon exercise by such assignee
of its rights to complete the Construction pursuant hereto, only such
assignee, and not the Secured Party, shall become liable to pay or perform
the Secured Party's obligations under the Construction Contract, the
Architect's Agreement and the other Construction Documents.
This assignment is a present, perfected and absolute assignment,
provided that the Secured Party shall not have the right to undertake
completion of the Construction or directly to enforce the provisions of the
Construction Contract or the Architect's Agreement until an Event of Default
shall occur under the Lease or a Construction Agency Event of Default shall
occur under the Lease or a Construction Agency Event of Default shall occur
under the Construction Agency Agreement or until the Leased Property is
returned to the Secured Party pursuant to the Construction Agency Agreement.
Following the occurrence of any such Event of Default or Construction Agency
Event of Default, the Secured Party may, without affecting any other right
or remedy available to it, exercise its rights under this assignment as
provided herein in any manner permitted by law. If any notice to the
Assignor is required by law, such notice shall be deemed commercially
reasonable if given at least ten (10) days prior to the date of intended
2
action. If the Assignor returns the Leased Property to the Secured Party
pursuant to the Construction Agency Agreement, the Secured Party may
(subject to any necessary third party consents) exercise all of the
Assignor's rights, and assert all of the Assignor's claims, under and with
respect to the Construction Contract, the Architect's Agreement, the other
Construction Documents and the other Collateral.
This assignment may be effectively waived, modified, amended or
terminated only by a written instrument executed by the Secured Party. Any
waiver by the Secured Party shall be effective only with respect to the
specific instance described therein. Delay or course of conduct shall not
constitute a waiver of any right or remedy of the Secured Party.
THIS ASSIGNMENT HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
All terms capitalized herein and not specifically defined herein which
are capitalized and defined in the Lease shall have the same respective
meanings for purposes hereof as for purposes of the Lease.
3
IN WITNESS WHEREOF, the undersigned have executed and delivered this
assignment as of September ___, 2001, pursuant to proper authority duly
granted.
XXXXXX X. XXXXX & CO., L.P., a
Missouri limited partnership
By: EDJ Holding Company, Inc., a
Missouri corporation, its sole general
partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
4
SECURITY AGREEMENT
ACCEPTANCE
----------
Atlantic Financial Group, Ltd. (registered to do business in Missouri
as Atlantic Financial Group, L.P.), being the Secured Party as described in
the foregoing Security Agreement and Assignment, hereby acknowledges receipt
of the foregoing instrument as of this day of September, 2001, and
----
hereby assigns all of its rights under such agreement to SunTrust Bank, as
Agent.
ATLANTIC FINANCIAL GROUP, LTD., a
Texas limited partnership (registered to do
business in Missouri as Atlantic Financial
Group, L.P.)
By: Atlantic Financial Managers, Inc., a
Texas corporation, its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
5
SECURITY AGREEMENT
SCHEDULE 1
[TO BE PROVIDED]
CONSENT AND ACKNOWLEDGMENT BY THE CONTRACTOR
--------------------------------------------
The undersigned hereby acknowledges receipt of a counterpart original
of, and consents to, the foregoing Security Agreement and Assignment.
1. The undersigned certifies that the Construction Contract is in full
force and effect and constitutes the entire agreement between the Assignor
and the undersigned, and that there have been no modifications, supplements,
amendments or except for change orders (copies of which are attached hereto)
which do not increase the contract price under the construction contract and
do not diminish the fair market value, useful life or utility of the Leased
Property addenda thereto from the form thereof dated , a
------------------
true, correct and complete copy of which is attached hereto, and that the
Assignor is not in default under the Construction Contract.
2. The undersigned agrees to look solely to the Assignor for the
performance of all of the obligations of the Assignor under the Construction
Contract, and not to look to Secured Party for such performance, except only
as provided below. However, if the Secured Party exercises, with respect to
the Construction Contract, the rights and privileges conferred upon it by
the Security Agreement and Assignment and asserts (by written election as
specified in the immediately succeeding two sentences) the present right to
have the benefits of the Construction Contract and to enforce the same
against the undersigned in the place and stead of the Assignor, the
undersigned agrees to perform for, and for the benefit of, the Secured Party
all of the undersigned's obligations under and pursuant to the Construction
Contract if the balance due under the Construction Contract (being the
portion of the total price which is then or thereafter due and payable as
provided therein, less the total of all portions thereof theretofore paid to
or for the benefit of the Contractor) has been paid or is then paid (or for
portions thereof not then due under the Construction Contract, such amounts
are paid as and when due under the Construction Contract). Prior to the
Secured Party's express written election (if any) to succeed to the
Assignor's rights and to assume the Assignor's obligations (to the extent
provided in the immediately succeeding sentence) under the Construction
Contract, the Contractor agrees that the Secured Party shall have no
personal obligations or liabilities of any kind under the Construction
Contract, the Security Agreement and Assignment, or otherwise. In the event
that the Secured Party shall so expressly elect in writing to succeed to the
Assignor's rights and to assume the Assignor's obligations under the
Construction Contract, the sole obligations that the Secured Party shall
assume and be liable for are (i) obligations to pay the Contractor the
amounts due under the Construction Contract as provided in the second
sentence of this paragraph (whether due before or after such election), and
(ii) other obligations of the Assignor under the Construction Contract first
accruing after such election by the Secured Party, and the Secured Party
shall not be liable or obligated for any other obligations.
3. The Contractor hereby agrees to send to the Secured Party copies of
all notices of any pending or threatened default, nonperformance or
termination to the Assignor under the Construction Contract by courier or
certified mail, return receipt requested, to the following address (or at
such other address as the Secured Party shall, from time to time, notify the
undersigned in writing):
SunTrust Bank
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Mail Code 1928
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Dash
Such notices of any pending or threatened default, nonperformance or
termination shall be sent at the same time as any such notices are sent to
the Assignor.
4. The Contractor agrees that it shall not voluntarily terminate the
Construction Contract except in accordance with the following provisions of
this paragraph. The Contractor agrees that if the Contractor is entitled to
terminate the Construction Contract by reason of defaults of the Assignor,
the Contractor shall not terminate the Construction Contract until it has
provided the Secured Party with a written notice of its election to so
terminate the Construction Contract by virtue of any such default thereunder
by the Assignor and the Secured Party has not assumed the Assignor's
obligations under the Construction Contract and cured the defaults as (but
only to the extent) required in Section 2 of this Consent and Acknowledgment
---------
within thirty days after Secured Party's receipt of said written notice.
5. Notices to the Contractor hereunder shall be sent by courier or
certified mail, return receipt requested, to the following:
-------------------
-------------------
-------------------
Attention:
----------------
6. In the event the Construction Contract is terminated, the Secured
Party shall be entitled to use, as required for the Construction (as defined
in the Lease), without any additional cost or fee, any and all Permits and
all Plans and Specifications and final plans, drawings and specifications
("Plans Permits") developed in connection therewith for the Construction,
but in no event will such Plans and Permits be used for any project other
than the current project.
The foregoing is furnished for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged by the undersigned,
and the undersigned understands and intends that the Secured Party will rely
on the foregoing and that the undersigned will be legally bound by the
foregoing. This Consent and Acknowledgment shall inure to the benefit of the
Secured Party and its successors and assigns.
The Contractor hereby acknowledges that the Secured Party will assign
all of its rights hereunder to SunTrust Bank, as Agent for the benefit of
the Lenders, and agrees that the Agent may exercise all rights of the
Secured Party hereunder.
All capitalized terms used herein and not otherwise specifically
defined shall have the meanings provided therefor in the Security Agreement
and Assignment.
ii
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent and Acknowledgment as of September , 2001 pursuant to proper
---
authority duly granted.
[INSERT NAME OF CONTRACTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
iii
Attach copy of Construction Contract
iv
CONSENT AND ACKNOWLEDGMENT OF ARCHITECT
---------------------------------------
The undersigned hereby acknowledges receipt of a counterpart original
of, and consents to, the foregoing Security Agreement and Assignment.
1. The undersigned certifies that the Architect's Agreement is in full
force and effect and constitutes the entire agreement between the Assignor
and the Architect, that there have been no modifications, supplements,
amendments or addenda to the Architect's Agreement from the form thereof
dated , a true, correct and complete copy of which is
------------------
attached hereto, and that the Assignor is not in default under the
Architect's Agreement.
2. The undersigned agrees to look solely to the Assignor for the
performance of all of the obligations of the Assignor under the Architect's
Agreement, and not to look to Secured Party for such performance. However,
if the Secured Party exercises, with respect to the Architect's Agreement,
the rights and privileges conferred upon it by the Security Agreement and
Assignment and asserts (by written election as specified in the immediately
succeeding two sentences) the present right to have the benefits of the
Architect's Agreement and to enforce the same against the undersigned in the
place and stead of the Assignor, the undersigned agrees to perform for, and
for the benefit of, the Secured Party all of the undersigned's obligations
under and pursuant to the Architect's Agreement if the balance due under the
Architect's Agreement (being the portion of the total price which is then or
thereafter due and payable as provided therein, less the total of all
portions thereof theretofore paid to or for the benefit of the Architect)
has been paid or is then paid (or for portions thereof not then due under
the Architect's Agreement, such amounts are paid as and when due under the
Architect's Agreement). Prior to the Secured Party's express written
election (if any) to succeed to the Assignor's rights and to assume the
Assignor's obligations (to the extent provided in the immediately succeeding
sentence) under the Architect's Agreement, the Architect agrees that the
Secured Party shall have no personal obligations or liabilities of any kind
under the Architect's Agreement, the Security Agreement and Assignment or
otherwise. In the event that the Secured Party shall so expressly elect in
writing to succeed to the Assignor's rights and to assume the Assignor's
obligations under the Architect Agreement, the sole obligations which the
Secured Party shall assume and be liable for are (i) obligations to pay the
Architect the amounts due under the Architect's Agreement as provided in the
second sentence of this paragraph (whether due before or after such
election), and (ii) other obligations of the Assignor under the Architect's
Agreement first accruing after such election by the Secured Party, and the
Secured Party shall not be liable or obligated for any other obligations.
3. The Architect hereby agrees to send to the Secured Party copies of
all notices to the Assignor under the Architect's Agreement by courier or
certified mail, return receipt requested, to the following address (or at
such other address as the Secured Party shall, from time to time, notify the
undersigned in writing):
X-0-0
XxxXxxxx Xxxx
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Mail Code 1928
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Dash
Such notices shall be sent at the same time as any notices to the Assignor.
4. The Architect agrees that it shall not voluntarily terminate the
Architect's Agreement except in accordance with the following provisions of
this paragraph. The Architect agrees that if the Architect is entitled to
terminate the Architect's Agreement by reason of defaults of the Assignor,
the Architect shall not terminate the Architect's Agreement until it has
provided the Secured Party with a written notice of its election to so
terminate the Architect's Agreement by virtue of any such default thereunder
by the Assignor and the Secured Party has not assumed the Assignor's
obligations under the Architect's Agreement and cured the defaults as (but
only to the extent) required in Section 2 of this Consent and Acknowledgment
---------
within thirty days after Secured Party's receipt of said written notice.
5. The Architect agrees to deliver to the Secured Party, upon
completion of the Construction (as defined in the Lease), a certificate of
the Architect, in form and substance reasonably satisfactory to the Secured
Party, and stating, if such be the case, that (i) the Building has been
completed substantially in accordance with the Plans and Specifications
therefor, and the Leased Property is ready for occupancy, (ii) such Plans
and Specifications comply in all material respects with all Applicable Laws
in effect at such time, and (iii) to the best of the Architect's knowledge,
the Leased Property, as so completed, complies in all material respects with
all Applicable Laws in effect at such time (capitalized terms in this
sentence having the meanings set forth in the Lease). If the Architect
cannot deliver such certificate because the facts do not support the
foregoing requested certification, the Architect agrees that it will deliver
a modified certificate or other written notice to the Secured Party
specifying the reason(s) the certificate cannot be given as requested.
6. Notices to the Architect hereunder shall be sent by courier or
certified mail, return receipt requested, to the following:
---------------------
---------------------
---------------------
Attention:
---------------------
7. In the event the Architect's Agreement is terminated, the Secured
Party shall be entitled to use, as required for the Construction (as defined
in the Lease), without any additional cost or fee, any and all Permits and
all Plans and Specifications and final plans, drawings and specifications
developed in connection therewith for the Construction.
The foregoing is furnished for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged by the undersigned,
and the undersigned
D-1-2
understands and intends that Secured Party will rely on the foregoing and
that the undersigned will be legally bound by the foregoing. This Consent
and Acknowledgment shall inure to the benefit of the Secured Party and its
successors and assigns. The Architect hereby acknowledges that the Secured
Party will assign all of its rights hereunder to SunTrust Bank, as Agent for
the benefit of the Lenders, and agrees that the Agent may exercise all
rights of the Secured Party hereunder.
All capitalized terms used herein and not otherwise specifically
defined shall have the meanings provided therefor in the Security Agreement
and Assignment.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent and Acknowledgment as of September , 2001 pursuant to proper
---
authority duly granted.
[NAME OF ARCHITECT]
By:
---------------------------
Name:
----------------------
Title:
---------------------
D-1-3
Attach copy of Architect's Agreement
D-1-4
EXHIBIT F
TO MASTER AGREEMENT
ASSIGNMENT AND ACCEPTANCE AGREEMENT
To: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Mail Code 1928
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Dash
Re: XXXXXX X. XXXXX & CO., L.P.
---------------------------
Ladies and Gentlemen:
We refer to Section 6.2 of the Master Agreement, dated as of September 18,
-----------
2001 (as heretofore or hereafter amended, the "Master Agreement"), among
----------------
Xxxxxx X. Xxxxx & Co., L.P., as Lessee, Guarantor and Construction Agent,
Atlantic Financial Group, Ltd. (registered to do business in Missouri as
Atlantic Financial Group, L.P.), as Lessor, SunTrust Bank and certain
financial institutions parties thereto, as Lenders, and SunTrust Bank, as
Agent. Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Master Agreement.
This agreement is delivered to you pursuant to Section 6.2 of the
-----------
Master Agreement and also constitutes notice to you, of the assignment to
(the "Assignee") of % of (i) its Commitment and (ii) the
--------------- -------- ----
A Loans and B Loans of (the "Assignor") outstanding
-------------------- --------
under the Loan Agreement and Master Agreement on the date hereof, which
assignment shall be effective as of , . After giving
------------- --- -----
effect to the foregoing assignment, the Assignor's and the Assignee's
Commitment Percentage for the purposes of the Loan Agreement and Master
Agreement are set forth opposite such Person's name on the signature pages
hereof.
[Add paragraph dealing with accrued interest and fees with respect to
Loans assigned.]
The Assignee hereby acknowledges and confirms that it is an Eligible
Assignee and that it has received a copy of each of the Operative Documents.
The Assignee further confirms and agrees that in becoming a Lender and in
making its Loans under the Loan Agreement, such actions have and will be
made without recourse to, or representation or warranty by, the Agent, the
Assignor or the Lessor.
Except as otherwise provided in the Master Agreement, effective as of
the date of acceptance hereof by the Agent and the Lessee:
F-1
(a) the Assignee
------------
(i) shall be deemed automatically to have become a party to
the Master Agreement and the Loan Agreement, have all the rights and
obligations of a "Lender" under the Master Agreement, the Loan
Agreement and the other Operative Documents as if it were an original
signatory thereto to the extent specified in the second paragraph
hereof; and
(ii) agrees to be bound by the terms and conditions set forth
in the Master Agreement, the Loan Agreement and the other Operative
Documents that are applicable to a Lender, and makes the
representations and warranties of a Lender therein, as if it were an
original signatory thereto; and
(b) the Assignor shall be released from its obligations under the
Master Agreement, the Loan Agreement and the other Operative Documents to
the extent of the interest assigned hereby as specified in the second
paragraph hereof; provided, that the Assignor shall not be relieved of any
such obligation arising prior to the date specified in the second paragraph
hereof.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Agent the processing fee referred to in Section 6.2
-----------
of the Master Agreement upon the delivery hereof.
The Assignee hereby advises you of the following administrative details
with respect to the assigned Loans and requests the Agent to acknowledge
receipt of this document:
A. Address for Notices:
Institution Name:
Attention:
Telephone:
Facsimile:
B. Payment Instructions:
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which taken together shall constitute one and
the same agreement.
F-2
Adjusted Commitment Percentage [ASSIGNOR]
------------------------------
% By:
------- ------------------------------
Title:
---------------------------
Commitment Percentage % [ASSIGNEE]
-----
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
Accepted and Acknowledged
this day of ,
---- ------------ ----
SUNTRUST BANK,
as Agent
By:
--------------------------------
Name Printed:
----------------------
Title:
-----------------------------
XXXXXX X. XXXXX & CO., L.P.
By: EDJ Holding Company, Inc.,
its sole general partner
By:
--------------------------------
Name Printed:
----------------------
Title:
-----------------------------
F-3
EXHIBIT H
TO MASTER AGREEMENT
FORM OF COMPLETION DATE CERTIFICATE
TO: Lessor, Agent and each Lender (as defined in the Master Agreement referred
to below)
Reference is hereby made to the Master Agreement, dated as of September 18,
2001 (as heretofore amended, the "Master Agreement"), among Xxxxxx X. Xxxxx
----------------
& Co., L.P., as Lessee, Guarantor and Construction Agent, Atlantic Financial
Group, Ltd. (registered to do business in Missouri as Atlantic Financial
Group, L.P.), as Lessor, SunTrust Bank and certain financial institutions
parties thereto, as Lenders, and SunTrust Bank, as Agent, and joined in by
The Xxxxx Financial Companies, L.L.L.P. Unless otherwise defined herein or
the context otherwise requires, terms used herein have the meanings provided
in the Master Agreement. This Certificate is being delivered pursuant to
Section 3.5(c) of the Master Agreement.
The Construction Agent hereby certifies to you that as of
, (the "Completion Date") with respect to the Leased
----------------- ---- ---------------
Property:
1. All amounts owing to third parties for the Construction have been
paid in full (other than contingent obligations for which the Construction
Agent has made adequate reserves), and no litigation or proceedings are
pending, or to the best of the Construction Agent's knowledge, are
threatened, against the Leased Property, the Construction Agent or the
Lessee which could reasonably be expected to have a Material Adverse Effect.
2. All material consents, licenses and permits and other governmental
authorizations or approvals required for the Construction and operation of
the Leased Property have been obtained and are in full force and effect.
3. The Leased Property has available all services of public facilities
and other utilities necessary for the use and operation of the Leased
Property for its intended purposes, including, without limitation, adequate
water, gas and electrical supply, storm and sanitary sewerage facilities,
telephone, other required public utilities and means of access between the
Building and public highways for pedestrians and motor vehicles.
4. All material agreements, easements and other rights, public or
private, which are necessary to permit the lawful use and operation of the
Leased Property as the Lessee intends to use the Leased Property under the
Lease and which are necessary to permit the lawful intended use and
operation of all then intended utilities, driveways, roads and other means
of egress and ingress to and from the same have been obtained and are in
full force and effect and neither the Construction Agent nor the Lessee has
any knowledge of any pending modification or cancellation of any of the
same, and the use of the Leased Property does not depend on any
H-1
variance, special exception or other municipal approval, permit or consent
that has not been obtained and is in full force and effect for its
continuing legal use.
5. All of the requirements and conditions set forth in Section 3.5(b)
--------------
of the Master Agreement have been completed and fulfilled with respect to
the Leased Property and the Construction.
6. To the best of the Construction Agent's knowledge, the Leased
Property is in compliance in all material respects with all applicable
zoning laws and regulations.
The Construction Agent has caused this Completion Date Certificate to
be executed and delivered by its duly authorized officer this
, .
-------------- -----
XXXXXX X. XXXXX & CO., L.P.
By: EDJ Holding Company, Inc., its
sole general partner
By:
--------------------------------
Name Printed:
----------------------
Title:
-----------------------------
H-2
EXHIBIT I
TO MASTER AGREEMENT
PAYMENT DATE NOTICE
Atlantic Financial Group, Ltd.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
SunTrust Bank
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Mail Code 1928
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Dash
Re: XXXXXX X. XXXXX & CO., L.P.
---------------------------
Ladies and Gentlemen:
This Payment Date Notice is delivered to you pursuant to Section 2.3(d)
of the Master Agreement, dated as of September 18, 2001 (together with all
amendments, if any, from time to time made thereto, the "Master Agreement"),
----------------
among Xxxxxx X. Xxxxx & Co., L.P., as Lessee, Guarantor and Construction
Agent, Atlantic Financial Group, Ltd. (registered to do business in Missouri
as Atlantic Financial Group, L.P.), as Lessor, SunTrust Bank and certain
financial institutions parties thereto, as Lenders, and SunTrust Bank, as
Agent, and joined in by The Xxxxx Financial Companies, L.L.L.P. Unless
otherwise defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Master Agreement.
Xxxxxx X. Xxxxx & Co., L.P., as Construction Agent, hereby requests
that on :
-----------
1. $ of the presently outstanding Funded Amounts originally
-----------
made on , [and $ of the presently
------------ --- ----- -------------
outstanding Funded Amounts originally made on , ],
--------------- -----
2. and all presently being maintained as (1)[LIBOR Advances] [Base Rate
Advances],
3. be [converted into] [continued as],
4. (2)[LIBOR Advances having a Rent Period of months]
-----
[Base Rate Advances].
------
(1) Select appropriate interest rate option.
I-1
Xxxxxx X. Xxxxx & Co., L.P., as Lessee, Guarantor and Construction Agent,
hereby certifies and warrants that no Potential Event of Default or Event of
Default has occurred and is continuing.
Xxxxxx X. Xxxxx & Co., L.P. has caused this Payment Date Notice to be
executed and delivered, and the certification and warranty contained herein
to be made, by its authorized officer this day of ,
----- --------------
2001.
XXXXXX X. XXXXX & CO., L.P.
By: EDJ Holding Company, its sole general
partner
By:
--------------------------------
Name Printed:
----------------------
Title:
-----------------------------
------
(2) Insert appropriate interest rate option.
I-2
EXHIBIT J
TO MASTER AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
SEE ATTACHED
J-1
