Construction Agreement - Operating Lease

Exhibit 10.15(b)


CONSTRUCTION AGENCY AGREEMENT


dated as of June 22, 2001


among


ATLANTIC FINANCIAL GROUP, LTD.


and


HUGHES SUPPLY, INC.
as Construction Agent


[OPERATING LEASE]


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.................................................................. 4
2.9. Insurance............................................................................................ 5


ARTICLE III THE BUILDINGS................................................................................ 11
3.1. Amendments; Modifications............................................................................ 11
3.2. Casualty and Condemnation............................................................................ 11
3.3. Indemnity............................................................................................ 12
3.4. Construction Force Majeure Events.................................................................... 12


ARTICLE IV PAYMENT OF FUNDS............................................................................. 13
4.1. Funding of Property Acquisition Costs and Property Buildings Costs................................... 13


ARTICLE V CONSTRUCTION AGENCY EVENTS OF DEFAULT........................................................ 14
5.1. Construction Agency Events of Default................................................................ 14
5.2. Damages.............................................................................................. 15
5.3. Remedies; Remedies Cumulative........................................................................ 15
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
5.7. Option to Remarket................................................................................... 19
5.8. Rejection of Sale.................................................................................... 21
5.9. Return of Leased Property............................................................................ 22
5.10. Reimbursements...................................................................................... 23
5.11. Building Construction Failure Payment............................................................... 23


ARTICLE VI NO CONSTRUCTION AGENCY FEE................................................................... 23
6.1. Lease as Fulfillment of Lessor's Obligations......................................................... 23


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ARTICLE VII LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS................................................. 23
7.1. Exercise of the Lessor's Rights...................................................................... 23
7.2. Lessor's Right to Cure Construction Agent's Defaults................................................. 24


ARTICLE VIII MISCELLANEOUS................................................................................ 24
8.1. Notices.............................................................................................. 24
8.2. Successors and Assigns............................................................................... 24
8.3. GOVERNING LAW........................................................................................ 24
8.4. Amendments and Waivers............................................................................... 24
8.5. Counterparts......................................................................................... 24
8.6. Severability......................................................................................... 24
8.7. Headings and Table of Contents....................................................................... 25
8.8. Jurisdiction; Waivers................................................................................ 25


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EXHIBITS


Exhibit A Form of Supplement to Construction Agency Agreement


iii


CONSTRUCTION AGENCY AGREEMENT
-----------------------------


CONSTRUCTION AGENCY AGREEMENT, dated as of June 22, 2001 (as amended, supplemented or otherwise modified from time to time, this "Agreement"), between
--------- ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership, (the "Lessor"), and
------ HUGHES SUPPLY, INC., a Florida corporation ("Hughes", and in its capacity as
------ construction agent, the "Construction Agent").
------------------


PRELIMINARY STATEMENT


A. Lessor, Hughes, certain subsidiaries of Hughes that may become signatories thereto, 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 June 22, 2001 (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 Hughes 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


I.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


II.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 Hughes 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 Hughes and (ii) the construction of the Buildings in accordance with the Plans and Specifications on such Land.


II.2. Acceptance; Construction. Hughes 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, 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 Hughes, Hughes may appoint such Lessee as its sub-construction agent with respect to such Leased Property, provided that such appointment shall not affect
-------- Hughes' obligations hereunder, which obligations shall be primary and shall remain in full force and effect.


II.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 required for such phase have been issued therefor.


II.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.


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II.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.


II.6. Identification of Properties; Construction Documents. The
---------------------------------------------------- Construction Agent may execute any of its duties and obligations under this Agreement by or through agents, contractors, developers, Affiliates, employees or attorneys-in-fact, and the Construction Agent shall enter into such agreements with architects and contractors 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 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 and at least 10% retainage initially, which amount may decline to 5% retainage at such time as Construction of the related Building is at least 50% complete in accordance with the terms of the related construction contract.


II.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 Leased Properties 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;


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(ii) all design and supervisory functions relating to the
construction of the Buildings and performing 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,
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 (which expenses shall be Construction Costs and shall be reimbursed with the proceeds of Advances), 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 that the Construction Agent shall be in possession and control of each Leased Property during the Construction Term therefor.


II.8. Covenants of the Construction Agent. The Construction Agent hereby
----------------------------------- covenants and agrees that it will:


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(a) following the Construction Commencement Date for each parcel of
Land, 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, 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;


(d) following the Completion Date for each Leased Property, cause all
outstanding punch list items with respect to the Buildings on such Leased
Property to be completed within sixty (60) days after said Completion Date;


(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 such title free of all Liens other than
Permitted Liens, it being understood and acknowledged that such Lessor's
rights, title and interest in and to said personalty have been assigned to
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.


II.9. Insurance.
---------


(a) Insurance by the Construction Agent: The Construction Agent shall
----------------------------------- cause to be procured with proceeds of Advances pursuant to, and subject to the terms and conditions of, the Operative Documents 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


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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.


(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) 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


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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 $2,500, (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 ...