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Construction Agency Agreement - Atlantic Financial Group Ltd. and Concord EFS Inc.

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CONSTRUCTION AGENCY AGREEMENT

dated as of July 12, 2002

among

ATLANTIC FINANCIAL GROUP, LTD.

and

CONCORD EFS, INC.,
as Construction Agent

TABLE OF CONTENTS


			Page

ARTICLE I		DEFINITIONS		1




	1.1.	Defined Terms		1




ARTICLE II		APPOINTMENT OF CONSTRUCTION AGENT		2




	2.1.	Appointment		2




	2.2.	Acceptance; Construction		2




	2.3.	Commencement of Construction		2




	2.4.	Supplements to this Agreement		2




	2.5.	Term		3




	2.6.	Identification of Properties; Construction Documents		3




	2.7.	Scope of Authority		3




	2.8.	Covenants of the Construction Agent		5




	2.9.	Insurance		6




ARTICLE III		THE BUILDINGS		12




	3.1.	Amendments; Modifications		12




	3.2.	Casualty and Condemnation		12




	3.3.	Indemnity		13




	3.4.	Construction Force Majeure Events		13




ARTICLE IV		PAYMENT OF FUNDS		14




	4.1.	Funding of Property Acquisition Costs and Property Buildings Costs		14




ARTICLE V		CONSTRUCTION AGENCY EVENTS OF DEFAULT		15




	5.1.	Construction Agency Events of Default		15




	5.2.	Damages		16




	5.3.	Remedies; Remedies Cumulative		16




	5.4.	Limitation on Construction Agent’s Recourse Liability		17




	5.5.	Construction Agent’s Right to Purchase		18




	5.6.	Construction Return Procedures		18




ARTICLE VI		NO CONSTRUCTION AGENCY FEE		19




	6.1.	Lease as Fulfillment of Lessor’s Obligations		19




ARTICLE VII		LESSOR’S RIGHTS; CONSTRUCTION AGENT’S RIGHTS		20




	7.1.	Exercise of the Lessor’s Rights		20




	7.2.	Lessor’s Right to Cure Construction Agent’s Defaults		20




ARTICLE VIII		MISCELLANEOUS		20




	8.1.	Successors and Assigns		20


		Page





8.2.	Notices		20




8.3.	GOVERNING LAW		20




8.4.	Amendments and Waivers		20




8.5.	Counterparts		21




8.6.	Severability		21




8.7.	Headings and Table of Contents		21




8.8.	Jurisdiction; Waivers		21

EXHIBITS


Exhibit A		Form of Supplement to Construction Agency Agreement

iii

CONSTRUCTION AGENCY AGREEMENT

CONSTRUCTION AGENCY AGREEMENT, dated as of July 12, 2002 (as amended, supplemented or otherwise modified from time to time, this “Agreement”), between ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership, (the “Lessor”), and CONCORD EFS, INC., a Delaware corporation (“Concord”, and in its capacity as construction agent, the “Construction Agent”).

PRELIMINARY STATEMENT

A. Lessor, Concord, as Guarantor, Concord and certain subsidiaries of Concord that may become party thereto, as Lessees, Electronic Payment Services, Inc., Star Systems, LLC and other Significant Subsidiaries of Concord that are or may become party thereto, as Subsidiary Guarantors, the Lenders signatory thereto and SunTrust Bank, as agent for such Lenders (in such capacity, the “Agent”) are parties to that certain Master Agreement, dated as of July 12, 2002 (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “Master Agreement”).

B. Subject to the terms and conditions hereof, (i) the Lessor desires to appoint Concord as the Construction Agent to act as its sole and exclusive agent for the identification and acquisition of the Land pursuant to the Master Agreement and construction of the Buildings in accordance with the Plans and Specifications and pursuant to the Master Agreement, and (ii) the Construction Agent desires, for the benefit of the Lessor, to cause the Buildings to be constructed in accordance with the Plans and Specifications and pursuant to the Master Agreement and this Agreement, in each case in accordance with the terms herein set forth.

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS

1.1. Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in Appendix A to the Master Agreement.

ARTICLE II

APPOINTMENT OF CONSTRUCTION AGENT

2.1. Appointment. Pursuant to and subject to the terms and conditions set forth herein and in the Master Agreement and the other Operative Documents, the Lessor hereby irrevocably designates and appoints Concord as the Construction Agent to act as its exclusive agent for (i) the identification and acquisition from time to time of Land to be acquired or leased by the Lessor and leased or subleased to a Lessee and (ii) the construction of the Buildings in accordance with the Plans and Specifications on such Land.

2.2. Acceptance; Construction. Concord hereby unconditionally accepts the designation and appointment as Construction Agent. The Construction Agent will cause the Buildings to be constructed on the Land substantially in accordance with the Plans and Specifications and in accordance with the Operative Documents, and to be equipped in all material respects with all Applicable Law and insurance requirements. If a Leased Property will be leased by a Lessee other than Concord, Concord may appoint such Lessee as its sub-construction agent with respect to such Leased Property, provided that such appointment shall not affect Concord’s obligations hereunder, which obligations shall be primary and shall remain in full force and effect.

2.3. Commencement of Construction. Subject to Construction Force Majeure Events, the Construction Agent hereby agrees, unconditionally and for the benefit of the Lessor, to cause Construction of a Building to commence on each parcel of Land as soon as is reasonably practicable, in its reasonable judgment, after the Closing Date in respect of such Land. For purposes hereof, Construction of a Building shall be deemed to commence on the date after the Closing Date for the related Leased Property (the “Construction Commencement Date”) on which excavation for the foundation for such Building or any other Construction of such Building commences. Without limiting the foregoing, no phase of such Construction shall be undertaken until all permits then required for such phase have been issued therefor.

2.4. Supplements to this Agreement. On the Closing Date of each parcel of Land, the Lessor and the Construction Agent shall each execute and deliver to the Agent a supplement to this Agreement in the form of Exhibit A to this Agreement, appropriately completed, pursuant to which the Lessor and the Construction Agent shall, among other things, each acknowledge and agree that the Construction of such parcel of Land will be governed by the terms of this Agreement. Following the execution and delivery of a supplement to this Agreement as provided above, such supplement and all supplements previously delivered under this Agreement shall constitute a part of this Agreement. On or prior to the Closing Date of each parcel of Land, the Construction Agent shall prepare and deliver to the Lessor and the Agent a construction budget (the “Construction Budget”) for the related Leased Property, setting forth in reasonable detail the budget for the Construction of the proposed Building on such Land in accordance with the Plans and Specifications therefor, and all related costs, including the capitalized interest and Yield expected to accrue during the related Construction Term; such Construction Budget shall include a line item for the amount of self-insurance or deductibles applicable to such Leased Property (it

being understood that the Construction Agent shall have no liability with respect to self-insurance or deductibles with respect to any Leased Property during the Construction Term therefor).

2.5. Term. This Agreement shall commence on the date hereof and shall terminate with respect to any given Leased Property upon the first to occur of:


	(a) payment by the Lessee of the Leased Property Balance and termination of the Lease with respect to such Leased Property in accordance with the Lease;

	(b) the expiration or earlier termination of the Lease;

	(c) termination of this Agreement pursuant to Article V hereof;

	(d) the Completion Date for such Leased Property and the completion of all punch list items as set forth in Section 2.8(d); and

	(e) the payment by the Construction Agent of the Leased Property Balance or the Construction Failure Payment with respect to such Leased Property pursuant to this Agreement.

2.6. Identification of Properties; Construction Documents. The Construction Agent may execute any of its duties and obligations under this Agreement by or through agents, architects, consultants, contractors, developers, Affiliates, employees, engineers or attorneys-in-fact, and the Construction Agent shall enter into such agreements with architects, contractors, developers, consultants, engineers and such other agents as the Construction Agent deems necessary or desirable for the construction of the Buildings pursuant hereto (the “Construction Documents”); provided, however, that no such delegation shall limit or reduce in any way the Construction Agent’s duties and obligations under this Agreement; provided, further, that contemporaneously with, or promptly after, the execution and delivery of a Construction Document, the Construction Agent will execute and deliver to the Lessor the Security Agreement and Assignment, pursuant to which the Construction Agent assigns to the Lessor, among other things, all of the Construction Agent’s rights under and interests in such Construction Documents. Each construction contract shall be with a reputable general contractor with experience in constructing projects that are similar in scope and type to the proposed Building, and shall provide for a guaranteed maximum project cost (within sixty (60) days of the Closing Date for the related Leased Property) and a commercially reasonable retainage amount (but in no event less than 10% of the related project cost) through substantial completion; it being understood that full payment may be made to subcontractors whose work has been fully performed and approved by the Construction Agent.

2.7. Scope of Authority. (A) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction

Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Construction Agent’s obligations hereunder with respect to the Construction Land Interests acquired or leased by the Lessor, including, without limitation:


	(i) the identification and assistance with the acquisition or lease of Land in accordance with the terms and conditions of the Master Agreement;

	(ii) overseeing, directing, supervising and monitoring all design and supervisory functions relating to the construction of the Buildings and all engineering work related to the construction of the Buildings;

	(iii) negotiating and entering into all contracts or arrangements to procure the equipment and services necessary to construct the Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices;

	(iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the construction and the development of the Leased Property on the Land in accordance with the Plans and Specifications;

	(v) maintaining all books and records with respect to the construction, operation and management of the Leased Properties; and

	(vi) performing any other acts necessary or appropriate in connection with the identification, and acquisition (or leasing) and development of the Land and construction of the Buildings in accordance with the Plans and Specifications, and all other functions typically undertaken for the construction and development of similar properties.

(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Any contract entered into by the Construction Agent or any of its Affiliates or agents not meeting the requirements of the foregoing sentence shall be ineffective. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent’s expense, to permit the Construction Agent to perform its duties hereunder.

(c) Subject to the terms and conditions of this Agreement and the other Operative Documents, the Construction Agent shall have sole management and control over the means,

methods, sequences and procedures with respect to the Construction. The parties agree and acknowledge that the Construction Agent shall be in possession and control of each Leased Property during the Construction Term therefor.

2.8. Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will:


	(a) following the Construction Commencement Date for each parcel of Land subject to this Agreement, but subject to Construction Force Majeure Events, cause construction of a Building on such Land to be prosecuted diligently and without undue interruption substantially in accordance with the Plans and Specifications for such Land, in accordance with the Construction Budget for such Leased Property and in compliance in all material respects with all Applicable Law and insurance requirements;

	(b) notify the Lessor and the Agent in writing not less than five (5) Business Days after the occurrence of each Construction Force Majeure Event;

	(c) take all reasonable and practical steps to cause the Completion Date for such Leased Property to occur on or prior to the Scheduled Construction Termination Date for such Leased Property, subject to the occurrence of Construction Force Majeure Events, and cause all Liens (including, without limitation, Liens or claims for materials supplied or labor or services performed in connection with the construction of the Buildings), other than Permitted Liens and Lessor Liens, to be discharged or bonded off if disputed in good faith by appropriate proceedings by the Construction Agent;

	(d) following the Completion Date for each Leased Property, (A) cause all outstanding punch list items with respect to the Buildings on such Leased Property to be completed within ninety (90) days after said Completion Date and (B) provide to the Lessor a list, in reasonable detail, of all Funded Equipment related to such Leased Property; and

	(e) at all times during Construction, cause all title to all personalty financed by the Lessor on or within such Leased Property to be and remain vested in the Lessor and cause to be on file with the applicable filing office or offices all necessary documents under Article 9 of the Uniform Commercial Code to perfect Lessor’s interest therein free of all Liens other than Permitted Liens and Lessor Liens, it being understood and acknowledged that such Lessor’s rights, title and interest in and to said personalty have been assigned to, or for the benefit of, the Agent pursuant to the Operative Documents;

	(f) not enter into any agreements or arrangements with any Person (other than the Funding Parties pursuant to the Operative Documents) that would result in any claim against, or liability of, the Agent or any Funding Party resulting from the fact that any


	Leased Property is not completed on or prior to the Scheduled Construction Termination Date therefor; and

	(g) take all reasonable and practical steps to minimize the disruption of the construction process arising from Construction Force Majeure Events.

2.9. Insurance.

(a) Insurance by the Construction Agent: The Construction Agent shall cause to be procured, and maintain in full force and effect during the Construction Term, insurance policies with insurance companies authorized to do business in each jurisdiction in which the Leased Properties under Construction are located with a Best Insurance Reports rating of “A” or better and a financial size category of “VIII” or higher, with limits and coverage provisions as set forth below.


	(i) General Liability Insurance. Liability insurance on an occurrence basis for the Construction Agent’s and Lessor’s liability arising out of claims for personal injury (including bodily injury and death) and property damage. Such insurance shall provide coverage for products-completed operations, contractual and personal injury liability with a $1,000,000 limit per occurrence for combined bodily injury and property damage with policy aggregates of $2,000,000 (other than products-completed operations) and $1,000,000 for products-completed operations. A maximum deductible or self-insured retention of $5,000 per occurrence shall be allowed. In no event will the Construction Agent be obligated pursuant to this Agreement to pay the amount of any deductible or self insurance retention that does not exceed the amount permitted by this Agreement.

	(ii) Automobile Liability Insurance. Automobile liability insurance for the Construction Agent’s and Lessor’s liability arising out of claims for bodily injury and property damage covering all leased, non-owned and hired vehicles used in the performance of the Construction Agent’s obligations under this Agreement with a $1,000,000 limit per accident for combined bodily injury and property damage and containing appropriate no-fault insurance provisions wherever applicable. A maximum deductible or self-insured retention of $5,000 per occurrence shall be allowed.

	(iii) Excess Liability Insurance. Liability insurance in excess of the insurance coverage required in clauses (i) and (ii) above with a limit of $10,000,000 per occurrence and in the aggregate.

	(iv) Builder’s Risk Insurance. Property damage insurance on an “all risk” basis insuring the Construction Agent and Lessor, as their interests may appear, including coverage against loss or damage from the perils of earth movement (including but not limited to earthquake, landslide, subsidence and volcanic eruption), flood, strike, riot and civil commotion.


	a. Property Covered. The builder’s risk insurance shall provide coverage for (i) the Buildings, structures, machinery, equipment, facilities, fixtures, supplies and other property constituting a part of the Leased Property under Construction, (ii) property of others in the care, custody or control of the Construction Agent in connection with the Leased Property, but not contractor’s tools, machinery, plant and equipment including spare parts and accessories not destined to become a permanent part of the Leased Property, (iii) all preliminary works, temporary works and interconnection works and (iv) all foundations and other property below the surface of the ground.

	b. Additional Coverages. The builder’s risk policy shall insure (i) the cost (including labor) of preventive measures to reduce or prevent further loss (ii) inland transit with sublimits sufficient to insure the largest single shipment to or from the Leased Property site from anywhere within North America, (iii) attorney’s fees, engineering and other consulting costs, and permit fees directly incurred in order to repair or replace damaged insured property in the amount of $100,000, (iv) expediting expenses (defined as reasonable extra costs incurred after an insured loss to make temporary repairs and expedite the permanent repair of the damaged property) with a sublimit in the amount of $25,000, (v) off-site storage to insure the full replacement value of any property or equipment not stored on the Leased Property site with a sublimit of $150,000, and (vi) demolition expenses, removal of undamaged portion, and increased cost of construction due to operation of laws or codes with a sublimit of twenty-five percent (25%) of the amount of the physical loss or damage.

	c. Special Clauses. The builder’s risk policy shall include (i) a 72 hour flood/windstorm/earthquake clause, (ii)unintentional errors and omissions clause, (iii) a requirement that the insurer pay losses within 60 days after receipt of an acceptable proof of loss and (iv) an extension clause allowing the policy period to be extended up to 60 days without modification to the terms and conditions of the policy and payment of the premium on a pro-rata basis.

	d. Prohibited Exclusions. The builder’s risk policy shall not contain any (i) coinsurance provisions, (ii) exclusion for ensuing direct physical loss or damage resulting from freezing, (iii) exclusion for physical loss or damage covered under any guarantee or warranty arising out of an insured peril, or (iv) exclusion for resultant physical loss or damage caused by ordinary wear and tear, gradual deterioration, faulty workmanship, design or materials.

	e. Sum Insured. The builder’s risk policy shall (i) be on a completed value form, (ii) insure 100% of the completed insurable value of the Building(s), (iii) value losses at replacement cost, without deduction for physical depreciation


	or obsolescence including custom duties, taxes and fees and (iv) insure loss or damage from earth movement and flood with separate sublimits equal to the anticipated cost of the related Leased Property.

	f. Deductible. The builder’s risk insurance may have a deductible not in excess of $5,000.


	(v) Faulty Design. The Construction Agent hereby represents and warrants that, with respect to each Leased Property, the agreements with the Architect provide for $5,000,000 in coverage, and with the contractor provide for at least $5,000,000 in coverage, for faulty workmanship, design or materials.

	(vi) Delayed Startup Insurance. Delayed startup coverage insuring the Lessor and covering the Lessor’s accrued and capitalized interest and Yield for a six month period as a result of loss or damage insured by the builder’s risk insurance resulting in a delay in completion of the Building(s) beyond their anticipated date of completion.

Such insurance shall (a) have a deductible of not greater than 10 days per occurrence during the Construction Term, (b) have an indemnity period not less than six months, (c) cover loss sustained when access to the Leased Property site is prevented due to an insured peril at premises in the vicinity of the Leased Property site with a sublimit of $100,000, (d) cover loss sustained due to the action of a public authority preventing access to the Leased Property site due to imminent or actual loss or destruction arising from an insured peril at premises in the vicinity of the Leased Property site with a sublimit of $100,000, (e) not contain any form of a coinsurance provision or include a waiver of such provisions, (f) insure loss caused by damage to finished equipment or machinery while awaiting shipment at a supplier’s premises, and (g) cover losses relating to real estate tax assessments, insurance expenses, architect’s and engineer’s fees to repair or replace lost or work, legal and accounting fees, construction management fees, testing and permitting expenses, marketing and administration expenses and overhead.


	(vii) Endorsements. All policies of liability insurance required to be maintained by the Construction Agent shall be endorsed as follows.

	a.		To name the Lessor as the loss payee with respect to property insurance;

	b.		To name the Lessor, the Lenders and the Agent as additional insureds with respect to all liability insurance;

	c.		To provide a severability of interests and cross liability clause; and


	d.		That the insurance shall be primary and not excess to or contributing with any insurance or self-insurance maintained by the Lessor or the additional insureds.

(viii) Waiver of Subrogation. The Construction Agent hereby waives any and every claim for recovery from the Lessor, the Lenders and the Agent for any and all loss or damage covered by any of the insurance policies to be maintained under this Agreement to the extent that such loss or damage is recovered under any such policy. If the foregoing waiver will preclude the assignment of any such claim to the extent of such recovery, by subrogation (or otherwise), to an insurance company (or other person), the Construction Agent (or other appropriate party) shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance policy) and shall cause each such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver.

(b) Conditions.


	(i) Adjustment of Losses. Losses, if any, with respect to any Leased Property under any damage policies required to be carried under this Section 2.9 shall be adjusted with the insurance companies, including the filing of appropriate proceedings, as follows: (x) so long as no Construction Agency Event of Default shall have occurred and be continuing, and provided that the Construction Agent is required, or has agreed, to repair the damage or if the purchase option has been exercised, such losses will be adjusted by the Construction Agent, (y) if any Construction Agency Event of Default shall have occurred and be continuing or Construction Force Majeure Event declared, or if the Construction Agent is not required to, and has not agreed to, repair the damage, such losses shall be adjusted by the Lessor with the consent of the Construction Agent (which consent shall not be unreasonably withheld or delayed). The party which shall be entitled to adjust losses may appear in any proceeding or action to negotiate, prosecute, adjust or appeal any claim for any award, compensation or insurance payment on account of any Casualty at such party’s reasonable request, and the other party shall participate in any such proceeding, action, negotiation, prosecution or adjustment. The Construction Agent may incur no expenses with respect to loss adjustment without the prior consent, not to be unreasonably withheld, of the Lessor. Adjustment expenses shall be funded through Advances. The parties hereto agree that this Agreement shall control the rights of the parties hereto in and to any such award, compensation or insurance payment relating to any Casualty affecting a Construction Land Interest.

	(ii) Application of Insurance Proceeds. All proceeds of insurance maintained pursuant to this Section 2.9 on account of any damage or destruction of any Leased Property (or part thereof) subject to Construction shall be paid to Lessor, provided that (i)


	if no Construction Agency Event of Default shall have occurred and (ii) subject to Section 3.4, the Construction Agent has undertaken to repair the damage and has demonstrated to the reasonable satisfaction of the Lessor that the application of such insurance proceeds, together with the remaining Commitment, are sufficient to cause the construction to be completed on or prior to the Scheduled Construction Termination Date, such funds shall be held by Lessor in a segregated account and disbursed to the Construction Agent to pay costs incurred by the Construction Agent to effect the repair of the Leased Property. If the Construction cannot be completed on or prior to the Scheduled Construction Termination Date, the parties agree to discuss the issue of disbursement of insurance proceeds to the Construction Agent in good faith and after such discussion the Lessor shall make a determination in the exercise of its sole discretion. Any proceeds of insurance paid to Lessor pursuant in this Section 2.9, not used to repair the Leased Property and held by Lessor shall be applied to the account of Construction Agent to reduce the Lease Balance.

	(iii) Additional Insurance. Any additional insurance obtained by the Construction Agent or the Lessor shall provide that it shall not interfere with or in any way limit the insurance described in this Section 2.9 or increase the amount of any premium payable with respect to any insurance described in such Section. The proceeds of any such additional insurance will be for the account of the party maintaining such additional insurance.

	(iv) Payment of Premiums. The Construction Agent shall cause to be paid all premiums for the insurance required hereunder from the proceeds of Advances. The Construction Agent shall renew or replace, or cause to be renewed or replaced, each insurance policy required hereunder prior to the expiration date thereof for the duration of the Construction Term.

	(v) Policy Cancellation and Change. All policies of insurance required to be maintained pursuant to this Section 2.9 shall be endorsed so that if at any time they are cancelled, or their coverage is reduced (by any party including the insured) so as to affect the interests of the Lessor, the Agent or any Lender such cancellation or reduction shall not be effective as to the Lessor, the Agent or such Lender for 30 days, except for non-payment of premium which shall be for 10 days, after written notice from such insurer of such cancellation or reduction.

	(vi) Miscellaneous Policy Provisions. All property damage insurance policies, (i) shall not include any annual or term aggregate limits of liability or clause requiring the payment of additional premium to reinstate the limits after loss except for insurance covering the perils of flood, earth movement and sabotage, (ii) shall include the Lessor as a named insured as its interest may appear, and (iii) shall include a clause requiring the insurer to make final payment on any claim within 60 days after the submission of proof of loss and its acceptance by the insurer.


	(vii) Separation of Interests. All policies shall insure the interests of the Lessor, the Agent and each Lender regardless of any breach or violation by the Construction Agent or any other Person of warranties, declarations or conditions contained in such policies, any action or inaction of the Construction Agent or others, or any foreclosure relating to the Leased Property or any change in ownership of all or any portion of the Leased Property.

	(viii) Acceptable Policy Terms and Conditions. All policies of insurance required to be maintained pursuant to this Section 2.9 shall contain terms and conditions reasonably acceptable to the Lessor.

(c) Evidence of Insurance. On the related Construction Commencement Date and on an annual basis at least 10 days prior to each policy anniversary, the Construction Agent shall furnish, or cause to be furnished, the Lessor with (1) certificates of insurance or binders, in a form acceptable to the Lessor, evidencing all of the insurance required by the provisions of this Section 2.9. Such certificates of insurance/binders shall be executed by each insurer or by an authorized representative of each insurer. Such certificates of insurance/binders shall identify underwriters, the type of insurance, the insurance limits and the policy term and shall specifically list the special provisions enumerated for such insurance required by this Section 2.9. Upon request, the Construction Agent will promptly furnish the Lessor with copies of all insurance binders and certificates of such insurance relating to the insurance required to be maintained hereunder.

(d) Reports. The Construction Agent will advise the Lessor in writing promptly of (i) any default in the payment of any premium and of any other act or omission on the part of the Construction Agent which may invalidate or render unenforceable, in whole or in part, any insurance being maintained by the Construction Agent pursuant to this Section 2.9 and (ii) the unavailability of any insurance in the commercial market.

(e) No Duty of Lessor to Verify or Review. No provision of this Section 2.9 or any provision of this Agreement or the other Operative Documents shall impose on the Lessor any duty or obligation to verify the existence or adequacy of the insurance coverage maintained by the Construction Agent, nor shall the Lessor be responsible for any representations or warranties made by or on behalf of the Construction Agent to any insurance company or underwriter. Any failure on the part of the Lessor to pursue or obtain the evidence of the insurance required by this Agreement from the Construction Agent and/or failure of the Lessor to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Agreement.

Notwithstanding anything herein to the contrary, the Construction Agent shall not be responsible for the payment of any insurance deductible amounts.

ARTICLE III

THE BUILDINGS

3.1. Amendments; Modifications. The Construction Agent may, subject to the conditions, restrictions and limitations set forth herein and in the Operative Documents (but not otherwise), at any time during the term hereof revise, amend or modify the Plans and Specifications and the related Construction Documents without the consent of the Lessor; provided, however, that the Lessor’s prior written consent will be required in the following instances: (x) such revision, amendment or modification by its terms would result in the Completion Date of the Buildings occurring after the Scheduled Construction Termination Date, or (y) such revision, amendment or modification would result in the cost for such Leased Property exceeding the then remaining Commitments, minus the then remaining costs for completing each other Leased Property for which the Completion Date has not occurred, or increase the Construction Budget therefor by an amount in excess of 10% thereof, or (z) the aggregate effect of such revision, amendment or modification, when taken together with any previous or contemporaneous revision, amendment or modification to the Plans and Specifications for such Leased Property, would be to reduce the Fair Market Sales Value of such Leased Property in a material respect when completed.

3.2. Casualty and Condemnation. If a Casualty or Condemnation occurs during the Construction Term for a Construction Land Interest, the Construction Agent shall promptly notify the Lessor in writing of such occurrence, together with an estimate of the costs of rebuilding or restoring the affected Construction Land Interest and the estimated time to complete such rebuilding or restoration. If the insurance proceeds or Awards, as the case may be, resulting from such Casualty or Condemnation are sufficient to cover the estimated costs of repair or rebuilding, the Lessor shall make such proceeds available to the Construction Agent to pay, or to reimburse the Construction Agent for, the costs of such rebuilding or restoration, and the Construction Agent shall promptly and diligently cause such restoration or rebuilding to be completed. In the event that the proceeds of the applicable insurance or Awards are insufficient to cover the costs of such rebuilding or restoration, either, at the Lessor’s option, (i) the Lessor shall make available to the Construction Agent Advances to cover any deficiency between such insurance proceeds or Awards, as the case may be, and the cost of such rebuilding or restoration, in which case the Construction Agent shall promptly and diligently cause such restoration or rebuilding to be completed, or (ii) the Construction Agent shall return the affected Construction Land Interest to the Lessor in accordance with the provisions of Section 5.3(a), (in which event, the Lessor shall be entitled to retain all of the applicable insurance proceeds or Awards). In no event shall the Construction Agent have any responsibility to the Lessor to pay any deficiency between the insurance proceeds or Awards, as the case may be, and the related Leased Property Balance, so long as the Construction Agent has complied with its obligations, including its obligations to maintain insurance, pursuant to this Agreement.

3.3. Indemnity. During the Construction Term for each Leased Property, the Construction Agent agrees to assume liability for, and to indemnify, protect, defend, save and hold harmless the Lessor, on an After-Tax Basis, from and against, any and all Claims that may be imposed on, incurred by or asserted or threatened to be asserted, against the Lessor, whether or not the Lessor shall also be indemnified as to any such Claim by any other Person, in any way relating to or arising out of (i) any event, condition or circumstance within the Construction Agent’s control, (ii) fraud, misapplication of funds, illegal acts or willful misconduct on the part of the Construction Agent, or (iii) any event described in paragraph (f) of Article XII of the Lease with respect to the Construction Agent (unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof). As used in clause (i) of the foregoing sentence, the term “within the Construction Agent’s control” shall mean caused by or arising from any failure by any Obligor to comply with any of its obligations under the Operative Documents (including its insurance obligations, unless such insurance is not available in the commercial market), any representation or warranty by any Obligor in any of the Operative Documents being inaccurate, any negligence or wilful misconduct of any Obligor, or any claim by any third party against the Lessor based upon the action or inaction of or by any Obligor; provided, however, that if such Claim is related to an inability or the failure to complete the construction of a Leased Property on or prior to Scheduled Construction Termination Date therefor and such Claim does not arise out of or result from events or circumstances described in the foregoing clause (ii) or (iii), the Construction Agent’s liability shall be limited to an amount equal to the Construction Failure Payment. Any Claims that are incurred by any Indemnified Party for which the Construction Agent is not obligated to indemnify pursuant to this Section 3.3 or the Master Agreement shall, if requested by the Agent by written notice to Lessor, be capitalized, and result in an increase to the Funded Amounts related to the relevant Leased Property. The foregoing indemnities are in addition to, and not in limitation of, the indemnities with respect to environmental claims set forth in Section 7.2 of the Master Agreement. The provisions of Section 7.3 of the Master Agreement shall apply to any amounts that the Construction Agent is requested to pay pursuant to this Section 3.3.

3.4. Construction Force Majeure Events. If a Construction Force Majeure Event that results in, or could reasonably be expected to result in, a Force Majeure Loss (including any losses that result from a Construction Force Majeure Event that prevents, or could reasonably be expected to prevent, the Construction Agent from completing Construction prior to the Scheduled Construction Termination Date) occurs, the Construction Agent shall promptly provide the Lessor with written notice thereof within ten (10) Business Days of the Construction Agent’s knowledge of the occurrence thereof (the “Construction Force Majeure Declaration”). Upon receipt of the Construction Force Majeure Declaration, Lessor and the Construction Agent shall consult with each other as to what steps, if any, are to be taken to remediate such Construction Force Majeure Event, including consulting as to the appropriateness of an extension of the Scheduled Construction Termination Date. The Construction Agent shall take all reasonable and practical steps to minimize the disruption of the construction process and all steps reasonably necessary to prevent further damage arising from such Construction Force Majeure Event. The Construction Agent shall be entitled to reimbursement from Lessor for any costs

directly related to minimizing the disruption and to preventing further damage of such Construction Force Majeure Event through the proceeds of Fundings pursuant to, and subject to the terms and conditions of, the Master Agreement. The Construction Agent shall, within thirty (30) days of the delivery of the Construction Force Majeure Declaration, submit to the Lessor a budget detailing the costs that would be incurred in remediating such Construction Force Majeure Event and a schedule for effecting the same. The Construction Agent will commence such remediation only upon receipt of written authorization from the Lessor to do so, which authorization (or denial thereof) shall be given by written notice to Construction Agent not later than fifteen (15) Business Days after Lessor’s receipt of the budget referred to in the preceding sentence. The Lessor in its sole discretion may elect to continue Construction and make Advances for such remediation or terminate this Agreement with respect to the affected Leased Property. If the Lessor elects to terminate this Agreement with respect to the affected Leased Property, subject to Construction Agent’s right to purchase such Leased Property in accordance with Section 5.5 hereof, the Construction Agent shall within thirty (30) days of receipt of written notice of termination return the affected Leased Property to the Lessor in accordance with the procedures set forth in Section 5.6.

In the event the Lessor elects to continue Construction after receipt of a Construction Force Majeure Declaration, the Lessor shall make available to the Construction Agent, so long as no Construction Agency Event of Default shall have occurred and be continuing, all insurance proceeds payable to the Lessor with respect to such event to the extent necessary to remediate such event.

ARTICLE IV

PAYMENT OF FUNDS

4.1. Funding of Property Acquisition Costs and Property Buildings Costs. (a) In connection with the acquisition or lease of any Land and during the course of the construction of the Buildings on any Land, the Construction Agent may request that the Lessor advance funds for the payment of Construction Costs, and the Lessor will comply with such request to the extent provided for under, and subject to the conditions, restrictions and limitations contained in, the Master Agreement and the other Operative Documents.

(b) The proceeds of any funds made available to the Lessor to pay Construction Costs shall be made available to the Construction Agent in accordance with the Funding Request relating thereto and the terms of the Master Agreement. The Construction Agent will use such proceeds only to pay the Construction Costs for the Leased Properties set forth in the Funding Request relating to such funds.

(c) After the Closing Date for a Leased Property, the Construction Agent shall not become personally liable for any Construction Costs, or pay any Construction Costs from its own funds, but only with the proceeds of Advances.

ARTICLE V

CONSTRUCTION AGENCY EVENTS OF DEFAULT

5.1. Construction Agency Events of Default. If any one or more of the following events (each a “Construction Agency Event of Default”) shall occur and be continuing:


	(a) the Construction Agent fails to apply any funds paid by, or on behalf of, the Lessor to the Construction Agent for Construction Costs to the payment of Construction Costs for such Leased Property, and such failure continues for five (5) Business Days after such payment is due and owing;

	(b) subject to Construction Force Majeure Events, the Construction Commencement Date with respect to any Leased Property shall fail to occur for any reason on or prior to the date that is one year after the Closing Date with respect to such Leased Property;

	(c) the Completion Date with respect to any Leased Property shall fail to occur for any reason on or prior to the earlier of the Funding Termination Date and the Scheduled Construction Termination Date for such Leased Property;

	(d) any Event of Default shall have occurred and be continuing; or

	(e) the Construction Agent shall fail to observe or perform in any material respect any term, covenant or condition of this Agreement (except those specified in clauses (a) through (d) above), and such failure shall remain uncured for a period of thirty (30) days after notice thereof to the Construction Agent;

then, in any such event, the Lessor may, in addition to the other rights and remedies provided for in this Article, immediately terminate this Agreement as to any Leased Property or Properties or all of the Leased Properties, separately, successively or concurrently (all in Lessor’s sole discretion) by giving the Construction Agent written notice of such termination, and upon the giving of such notice, this Agreement shall terminate as to such Leased Property or Properties or all of the Leased Properties (as the case may be) and all rights of the Construction Agent and, subject to the terms of the Operative Documents, all obligations of the Lessor under this Agreement with respect to such Leased Property or Properties or all of the Leased Properties (as the case may be) shall cease. Subject to Section 5.4, The Construction Agent shall pay upon demand all reasonable costs, expenses, losses, expenditures and damages (including, without

limitation, attorneys’ fees and disbursements) actually incurred by or on behalf of the Lessor in connection with any Construction Agency Event of Default.

5.2. Damages. The termination of this Agreement pursuant to Section 5.1 shall in no event relieve the Construction Agent of its liability and obligations hereunder, all of which shall survive any such termination.

5.3. Remedies; Remedies Cumulative. (A) If a Construction Agency Event of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease Event of Default under paragraph (f) of Article XII of the Lease, unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof) or 5.1(e) other than as a result of Construction Agent’s fraudulent or illegal acts, misapplication of funds or willful misconduct, then, in each case, the Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise (subject to the limitations set forth herein), including the right to terminate this Agreement by giving Construction Agent written notice of such termination. Upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent to pay immediately upon receipt of notice from Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has the option to purchase the Leased Property in accordance with Section 5.5 hereof, which shall constitute a cure of such Construction Agency Event of Default as provided therein.

In the event Construction Agent does not purchase the Leased Property pursuant to the terms hereof, the related Lessee(s) shall return the Leased Property to Lessor within ten (10) Business Days of the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof and Lessor shall have the right to sell the Leased Property to an unaffiliated third party and to require Construction Agent to pay to Lessor, immediately upon receipt of the termination notice, cash in an amount equal to the Construction Failure Payment for all of the Construction Land Interests. The Net Selling Price for such Leased Property shall be distributed in accordance with Section 3.4 of the Loan Agreement.

(b) If a Construction Agency Event of Default shall have occurred and be continuing under Sections 5.1(a) or 5.1(d) (as the result of an Event of Default under paragraph (f) of Article XII of the Lease, unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof), or otherwise as the result of fraud, misapplication of funds, illegal acts or wilful misconduct on the part of the Construction Agent, Lessor shall have the right to terminate this Agreement by giving Construction Agent written notice of such termination, and upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent to pay immediately upon receipt of notice from Lessor the

Lease Balance then outstanding. In addition, but subject to the Construction Agent’s purchase right under Section 5.5, the Lessor may sell the Leased Property, and the Net Selling Price derived from any such sale shall be distributed first, to Lessor in the amount of the Lease Balance to the extent not previously paid by the Construction Agent, second, to the extent the Construction Agent has paid to the Lessor the Lease Balance, to the Construction Agent to reimburse it to the extent of its payment of the Lease Balance, but if no such payment was made, to the Lessor, and third to the Lessor. The Lessor shall have all the rights and remedies afforded Lessor by Applicable Law and the Operative Documents. If the Construction Agent does not purchase the Leased Property, it shall return the Leased Property to the Lessor within ten (10) Business Days of the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof.

(c) Remedies Cumulative. Subject to the limitations on the Construction Agent’s liability pursuant to Section 5.4 hereof, no failure to exercise and no delay in exercising, on the part of the Lessor any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Subject to the limitations on the Construction Agent’s liability pursuant to Section 5.4 hereof, the rights, remedies, powers and privileges provided in this Agreement and in the other Operative Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

5.4. Limitation on Construction Agent’s Recourse Liability. Subject to the last sentence of this Section 5.4, notwithstanding anything contained herein or in any other Operative Document to the contrary, upon the occurrence and during the continuance of a Construction Agency Event of Default with respect to any Leased Property described in Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease Event of Default under paragraph (f) of Article XII of the Lease, unless such event constitutes a Limited Event of Default pursuant to clause (ii) of the definition thereof) or 5.1(e), the aggregate maximum recourse liability of the Construction Agent with respect to such default to the Lessor or any Person claiming by, through or under the Lessor under the Operative Documents, shall be limited to the Construction Failure Payment for such Leased Property, provided that if such Construction Agency Event of Default results solely from a Construction Force Majeure Event, then the Construction Agent shall have no obligation to pay the Construction Failure Payment with respect to the related Leased Property. The Construction Agent nonetheless acknowledges and agrees that (i) the Lessor shall be entitled to recover from the applicable Leased Property (including through any reletting and/or sale of such Leased Property or any portion thereof) the entire outstanding Lease Balance (and, to the extent sales proceeds exceed the Lease Balance, amounts in excess of the Lease Balance as provided in Section 5.3(a) and (b)), all accrued and unpaid interest, accrued Yield and other amounts then due and owing to the Lessor under the Operative Documents and all other costs and expenses of the Lessor incurred in connection with such Leased Property (including without limitation, any costs incurred in connection with the construction of the Building(s) and other improvements and/or any reletting or sale of such Leased Property or any portion thereof) from and after the

date of such return and (ii) the foregoing recourse limitations are exclusive of any amounts due and owing under Article III hereof. If a Construction Agency Event of Default occurs due to the fraud, misapplication of funds, illegal acts or wilful misconduct on the part of the Construction Agent or any event described in paragraph (f) of Article XII of the Lease, the Construction Agent shall be obligated to pay the Lease Balance as set forth herein.

5.5. Construction Agent’s Right to Purchase. If a Construction Agency Event of Default hereunder relates only to a specific Leased Property or specific Leased Properties but not all Leased Properties, the Construction Agent shall have the right, at its option, to cure such Construction Agency Event of Default by purchasing (a “Construction Purchase”) such affected Leased Property or Properties for the Leased Property Balance(s) therefor from the Lessor within ten (10) Business Days of the delivery of the notice of termination referred to in Section 5.3(a) or (b) in accordance with the terms and subject to the conditions, restrictions and limitations of Section 14.5 of the Lease, in which case no Construction Agency Event of Default shall be deemed to have occurred hereunder for the purposes of the other Operative Documents.

5.6. Construction Return Procedures. In the case of any return of any Leased Property to the Lessor pursuant to Section 3.4 or Article V hereof (a “Construction Return”), the Construction Agent shall, at its cost and expense, do each of the following on or prior to the return date specified by the Lessor in a written notice to the Construction Agent given at least ten (10) Business Days prior thereto:

(a) the Construction Agent shall, on or prior to the return date, execute and deliver to the Lessor (or to the Lessor’s designee): (i) a deed with respect to all of the interest of the Lessee and the Construction Agent in the Leased Property containing representations and covenants of grantor to the Lessor (or such other Person) solely regarding the absence of Liens (other than Lessor Liens and the Liens of the Operative Documents (other than Liens in favor of the related Lessee)), (ii) an agreement granting easements and rights of way to such Leased Property as reasonably deemed necessary by the Lessor, (iii) a bill of sale without warranty (except as to the absence of liens other than Lessor Liens and the Lien of the Operative Documents) with respect to all of the interest of the Lessee and the Construction Agent in all personalty and equipment financed by the Funding Parties and (iv) an assignment of such Construction Agent’s entire interest in such Leased Property (which shall include an assignment of all such Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with any Casualty, Condemnation or Construction Force Majeure Event affecting such Leased Property and an assignment of leases of such Leased Property), in the case of the documents referred to in clauses (i), (ii) and (iv) in recordable form and otherwise in conformity with local custom and free and clear of any Liens other than Lessor Liens and the Lien of the Operative Documents;

(b) the Construction Agent shall, on the construction return date, pay over to the Agent (as assignee of the Lessor) any awards, compensation and insurance previously received by the Construction Agent in connection with such Leased Property which have not been applied in

connection with the Construction, repair or maintenance of the Leased Property except such amounts as may be necessary to reimburse the Construction Agent for expenditures incurred in connection with such Construction, repair or maintenance during the Construction Term which have not been reimbursed;

(c) The Construction Agent shall execute and deliver to the Lessor a statement of termination of this Agreement and each of the other Operative Documents with respect to the affected Leased Property to be executed by the Funding Parties and delivered to the Construction Agent;

(d) the Construction Agent shall, on or prior to the return date, vacate the Leased Property and transfer possession of such Leased Property to the Lessor or any Person designated by the Lessor, in each case by surrendering the same into the possession of the Lessor or such Person, as the case may be, free and clear of all Liens (other than Lessor Liens and the liens of the Operative Documents) in compliance with all Applicable Law (including Environmental Laws);

(e) on or prior to the return date, the Construction Agent shall deliver to the Lessor or any Person designated by the Lessor copies of all Construction Documents, permits, licenses, books and records regarding the maintenance of such Leased Property and the Construction Agent’s interest in such Leased Property, and a current copy of the Plans and Specifications; and

(f) the Construction Agent shall take all actions reasonably requested by the Lessor to fully assign to the Lessor all of its rights and claims in, to and under, all of the Construction Documents, and all permits and other governmental authorizations related to such Leased Property or the Construction.

ARTICLE VI

NO CONSTRUCTION AGENCY FEE

6.1. Lease as Fulfillment of Lessor’s Obligations. Subject to Article IV hereof, all obligations, duties and requirements imposed upon or allocated to the Construction Agent shall be performed by the Construction Agent at the Construction’s Agent’s sole cost and expense, and the Construction Agent will not be entitled to, and the Lessor shall not have any obligation to pay, any agency fee or other fee or compensation, and the Construction Agent shall not be entitled to, and the Lessor shall not have any obligation to make or pay, any reimbursement therefor, it being understood that this Agreement is being entered into as consideration for and as an inducement to the Lessor entering into the Lease and the other Operative Documents.

ARTICLE VII

LESSOR’S RIGHTS; CONSTRUCTION AGENT’S RIGHTS

7.1. Exercise of the Lessor’s Rights. The Construction Agent hereby acknowledges and agrees that the rights and powers of the Lessor under this Agreement have been assigned to, and may be exercised by, the Agent, for the benefit of the Lenders, pursuant to the Loan Agreement and the related Operative Documents.

7.2. Lessor’s Right to Cure Construction Agent’s Defaults. The Lessor, without waiving or releasing any obligation or Construction Agency Event of Default, may, upon prior written notice to the Construction Agent (but shall be under no obligation to), remedy any Construction Agency Event of Default for the account of and at the sole cost and expense of the Construction Agent. All reasonable out of pocket costs and expenses so incurred (including actual and reasonable fees and expenses of counsel), together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid by the Lessor, shall be paid by the Construction Agent to the Lessor on demand; provided that such amount shall not exceed the Construction Failure Payment for the related Leased Property.

ARTICLE VIII

MISCELLANEOUS

8.1. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Lessor, the Construction Agent and their respective legal representatives, successors and permitted assigns. The Construction Agent shall not assign its rights or obligations hereunder (except as expressly permitted herein) without the prior written consent of the Lessor and the Agent.

8.2. Notices. All notices, consents, directions, approvals, instructions, requests, demands and other communications required or permitted by the terms hereof to be given to any Person shall be given in writing in the manner provided in, shall be sent to the respective addresses set forth in, and the effectiveness thereof shall be governed by the provisions of, Section 8.2 of the Master Agreement.

8.3. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

8.4. Amendments and Waivers. Subject to Section 8.4 of the Master Agreement, the Lessor and the Construction Agent may from time to time, enter into written amendments, supplements or modifications hereto.

8.5. Counterparts. This Agreement may be executed on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same agreement.

8.6. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

8.7. Headings and Table of Contents. The headings and table of contents contained in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

8.8. Jurisdiction; Waivers. The Lessor and the Construction Agent hereby acknowledge that the terms of Section 8.11 of the Master Agreement apply to this Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

CONCORD EFS, INC.

By      /s/ E. T. Haslam
            Name: Edward T. Haslam
            Title: Chief Financial Officer

ATLANTIC FINANCIAL GROUP, LTD.

By: Atlantic Financial Managers, Inc.,
its General Partner

By      /s/ Stephen S. Brookshire
            Name: Stephen S. Brookshire
            Title: President

CONSTRUCTION
AGENCY AGREEMENT

S-1

EXHIBIT A

Supplement to Construction Agency Agreement

SUPPLEMENT to Construction Agency Agreement, dated as of , 200_, between ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership (the “Lessor”), and CONCORD EFS, INC., a Delaware corporation (in its capacity as construction agent, the “Construction Agent”). Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Construction Agency Agreement.

The Lessor and the Construction Agent are parties to that certain Construction Agency Agreement, dated as of July 12, 2002 (as amended, supplemented or otherwise modified, the “Construction Agency Agreement”), pursuant to which (i) the Lessor has appointed the Construction Agent as its sole and exclusive agent in connection with the construction of the Buildings in accordance with the Plans and Specifications, and (ii) the Construction Agent has agreed, for the benefit of the Lessor, to cause the construction of the Buildings to be completed in accordance with the Plans and Specifications.

Subject to the terms and conditions of the Construction Agency Agreement, the Lessor and the Construction Agent desire that the terms of the Construction Agency Agreement apply to the Land described in Schedule 1 and wish to execute this Supplement to provide therefor.

1. The Construction Agent agrees to act as Construction Agent and to perform its obligations under the Construction Agency Agreement in connection with the completion of construction of the Building on the Land described in Schedule 1 in accordance with the Plans and Specifications for such Land. The Construction Agent hereby represents and warrants to Lessor that the Construction Agent has heretofore delivered to Lessor a true, correct and complete copy of the Plans and Specifications for the Building on the Land described in Schedule 1 or, if not available on the date hereof, will deliver such Plans and Specifications as soon as available.

2. Each of the Lessor and the Construction Agent acknowledges and agrees that the construction of the Buildings on the Land described in Schedule 1 shall be governed by the terms of the Construction Agency Agreement.

A-1

3. The anticipated construction budget relating to the construction and development of the Building on the Land described in Schedule 1 is $ . [The acquisition cost of the Land described in Schedule 1 is $ .]*/

4. This Supplement shall, upon its execution and delivery, constitute a part of the Construction Agency Agreement.

May not be applicable if Ground Lease is used.

A-2

IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

CONCORD EFS, INC.

By
Name:
Title:

ATLANTIC FINANCIAL GROUP, LTD.

By: Atlantic Financial Managers, Inc.,
its General Partner

By
Name:
Title:

A-3

Schedule 1 to Supplement

Description of Land Interest