EXHIBIT 10.1
(Florida)
ASSIGNMENT AND ASSUMPTION OF LEASE
AND OTHER OPERATIVE DOCUMENTS
This Assignment and Assumption of Lease and other Operative Documents (this
"Assignment") is made and entered into as of this 25th day of June, 2001, by and
among Equifax Inc., a Georgia corporation ("Assignor"), Certegy Inc., a Georgia
corporation formerly known as Equifax PS, Inc. ("Assignee"), Prefco VI Limited
Partnership, a Connecticut partnership (the "Lessor"), Atlantic Financial Group,
Ltd., a Texas limited partnership ("AFG"), SunTrust Bank, a Georgia banking
corporation, as Agent (the "Agent") and as Lender (the "Lender").
RECITALS:
A. Assignor, the Lessor, AFG, the Lender and the Agent are parties to that
certain Master Agreement dated as of December 30, 1999 (as heretofore amended
from time to time, the "Master Agreement") relating to the lease of a property
in Florida to Assignor by Lessor pursuant to the Lease Agreement dated as of
December 30, 1999 (as heretofore amended from time to time, the "Lease") between
the Lessor and Assignor. Assignor provided its Guaranty dated as of December 30,
1999 (the "Operative Guaranty") in favor of the Lessor, the Agent and the Lease
Participant. The Lender has provided funding to the Lessor in connection with
the Operative Documents pursuant to the Loan Agreement dated as of December 30,
1999 (as heretofore amended from time to time, the "Loan Agreement", and
together with the Master Agreement, the Lease, the Operative Guaranty and
certain other documents are the Operative Documents as defined in the Master
Agreement) among the Lessor, the Agent and the Lease Participant. Capitalized
terms not otherwise defined herein are used herein as defined in the Master
Agreement.
B. The Lease relates to the Land described on Exhibit A hereto and any
Building and other improvements thereon and including the Lessor's benefits and
rights under the Honeywell Lease (the "Leased Property"). The Lease was recorded
on January 3, 2000 in the Pinellas County, Florida Off. Rec. Book 10772 Pages
1833 to 1910.
C. In connection with a special distribution (the "Spin-Off") by Assignor
of all of the shares of Assignee declared June 11, 2001 with a record date of
June 27, 2001 and agreed distribution date of July 7, 2001, Assignor is directly
or indirectly transferring to Assignee all of Assignor's right, title and
interest in and to all of the material assets of Assignor's payment services
business (the "Property"), substantially as described in that certain
registration statement on Form 10 filed by Assignee with the Securities and
Exchange Commission on April 3, 2001, as amended on May 18, 2001 and June 11,
2001 ("Form 10 Filing").
D. In connection with the aforesaid transfer of the Property, (i) Assignor
desires to assign to Assignee all of Assignor's right, title and interest as
Lessee in and to the Lease and the other Operative Documents, and (ii) Assignee
desires to accept such assignment and to assume, and agrees to perform, subject
to the terms and conditions hereof, all of Assignor's duties, obligations and
liabilities as Lessee under the Operative Documents.
NOW THEREFORE, for and in consideration of the mutual premises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor, Assignee, the Lessor,
the Agent and the Lease Participant hereby agree as follows:
1. Effective as of the "Effective Time", as defined in the Distribution
Agreement Plan of Reorganization and Distribution included in the Form 10 Filing
(the "Distribution Agreement"), Assignor does hereby sell, assign, convey and
transfer all of its right, title and interest as Lessee in and to the Lease and
the other Operative Documents to Assignee.
2. Assignee hereby accepts the foregoing assignment and assumes and agrees
to perform, subject to the terms and conditions hereof, all of Assignor's
duties, obligations, and liabilities as Lessee under the Lease and the other
Operative Documents, whenever arising.
3. Assignor agrees to indemnify Assignee, and Assignee agrees to indemnify
Assignor with respect to matters relating to the Lease and the other Operative
Documents in accordance with the Distribution Agreement between such parties
related to the Spin-Off.
4. Assignor shall have no further duty or obligation under the Operative
Documents (including, without limitation, the Operative Guaranty) and Assignor
shall be released from all duties and obligations thereunder upon the
effectiveness of this Assignment pursuant to Section 7 hereof.
5. The parties hereto hereby agree that the consummation of the
transactions contemplated by the Form 10 Filing (including the assignment of the
Operative Documents contemplated hereby) shall not constitute a default or
breach of any of the obligations of the respective parties to the Operative
Documents. The parties hereto further acknowledge that the Assignee and certain
of its subsidiaries are now, or will hereafter become, obligated under the
following credit facilities, and agree that the incurrence and performance of
such obligations shall not constitute a default or breach of any of the
obligations of the respective parties to the Operative Documents:
(i) Revolving credit facilities in an aggregate amount of up to
$400,000,000 with SunTrust Bank, as the initial agent thereunder, as the same
may be amended, restated or refinanced from time to time; and
(ii) Revolving credit facilities in an aggregate amount of up to
$180,000,000 with First Union National Bank (or such other lender as selected by
Assignee), as the same may be amended, restated or refinanced from time to time.
6. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This Assignment and
the provisions hereof are solely for the benefit of the parties hereto and their
respective successors and assigns and not any other person; and, without
limiting the generality of the foregoing, no other person shall be
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deemed to be a third party beneficiary hereof or shall have any right or remedy
hereunder or with respect to any provision hereof.
7. This Assignment shall be effective with respect to the Assignor, the
Assignee, the Lessor, the Agent and the Lease Participant as of the Effective
Time. Notwithstanding the foregoing, the release of Assignor hereunder pursuant
to Section 4 shall be conditioned on the execution and delivery of the following
documents by the respective parties thereto no later than July 31, 2001, and
Assignor and Assignee will provide the same as indicated below:
(a) Assignee's Resolutions and Incumbency Certificate, etc. Each of
the Agent and the Lessor shall have received (x) a certificate of the
Secretary or an Assistant Secretary of the Assignee, attaching and
certifying as to (i) the Board of Directors' or other authorizing
resolution duly authorizing the execution, delivery and performance by it
of this Assignment, (ii) the incumbency and signatures of persons
authorized to execute and deliver such documents on its behalf, (iii) its
articles of incorporation, certified as of a recent date by the Secretary
of State of the state of its incorporation, (iv) its by-laws and (v) the
Distribution Agreement, and (y) good standing certificates for the Assignee
from the appropriate offices of the States of such Person's incorporation
and principal place of business.
(b) Evidence of Insurance. The Lessor and the Agent shall have
received from the Assignee certificates of insurance evidencing compliance
with the provisions of Article VIII of the Lease (including the naming of
the Lessor, the Agent and the Lender as additional insured or loss payee
with respect to such insurance), in form and substance reasonably
satisfactory to the Lessor and the Agent.
(c) UCC Financing Statement; Recording Fees; Transfer Taxes. Each
Funding Party shall have received satisfactory evidence of (i) the
execution and delivery to Agent of a UCC-1 and UCC-2 financing statement to
be filed with the Secretary of State of Florida (or other appropriate
filing office) and Pinellas County, Florida, and such other Uniform
Commercial Code financing statements as any Funding Party deems necessary
or desirable in order to protect such Funding Party's interests and (ii)
the payment of all recording and filing fees and taxes with respect to any
recordings or filings made of this Assignment.
(d) Opinion. The opinions of the general counsel and the special
counsel for the Assignee in the forms attached hereto as Exhibits B and C,
respectively, with such changes thereto as may be satisfactory to the
Lessor and the Agent.
(e) Confirmation. The confirmation by the Assignor and the Assignee of
the occurrence of the "Effective Time" and the "Distribution Date", each as
defined in the Distribution Agreement.
Upon receipt of the foregoing, the respective recipients thereof will, on
request, acknowledge receipt to Assignor and Assignee.
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8. The Assignee represents and warrants to each of the other parties
hereto as follows:
(a) Corporate Existence and Power. The Assignee is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where the failure to qualify would have a Material
Adverse Effect, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted.
(b) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Assignee of this Assignment (i)
are within the Assignee's corporate powers, (ii) have been duly authorized
by all necessary corporate action, (iii) require no action by or in respect
of or filing with, any governmental body, agency or official, (iv) do not
contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the
Assignee or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Assignee or any of the Subsidiaries, and (v) do
not result in the creation or imposition of any Lien on any asset of the
Assignee or any of the Subsidiaries.
(c) Binding Effect. This Assignment constitutes a valid and binding
agreement of the Assignee, enforceable in accordance with its terms,
provided that the enforceability hereof and thereof is subject in each case
to general principles of equity and to bankruptcy, insolvency and similar
laws affecting the enforcement of creditors' rights generally.
(d) No Litigation. There is no action, suit or proceeding pending
against or affecting the Assignee or any of the Subsidiaries before any
court or arbitrator or any governmental body, agency or official which
could reasonably be expected to have a Material Adverse Effect.
(e) Investment Company Act. Neither the Assignee nor any Subsidiary is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(f) Public Utility Holding Company Act. Neither the Assignee nor any
Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended.
(g) 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
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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 March 31, 1997.
9. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF GEORGIA, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND
CONFLICTS OF LAW RULES OF SUCH STATE, EXCEPT AS TO MATTERS RELATING TO THE
ASSIGNMENT OF THE LEASEHOLD ESTATE 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 OF FLORIDA.
10. The Assignee hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Assignment 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, Georgia, 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;
(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 Certegy Inc., 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000, Attention: Xxxxx X. Xxxxxxxx, Corporate Vice President, General
Counsel and Secretary with a copy to: Certegy Inc., X.X. Xxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxxx, Corporate Vice
President and Chief Financial Officer or at such other address of which the
other parties hereto shall have been notified pursuant to Section 8.2 of
the Master Agreement; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law.
11. As herein amended, the Operative Documents shall remain in full force
and effect and are hereby ratified and confirmed in all respects. After the
Effective Time hereof, (i) all references in the Master Agreement or any other
Operative Document to the "Master Agreement" or another Operative Document shall
refer to the Master Agreement, as amended hereby, or such other Operative
Agreement, as amended hereby and (ii) all references in any Operative Document
to the "Lessee" or "Guarantor" shall be deemed to be references to the Assignee.
This Assignment shall for all purposes be deemed to be an Operative Document
under the Master Agreement.
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12. This Assignment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Assignment by signing any such counterpart.
13. Without limiting its obligations under Section 8.8 of the Master
Agreement, the Assignee agrees to pay the actual reasonable costs and expenses
of the Agent (including, without limitation, reasonable fees and disbursements
of counsel to the Agent, actually incurred) in connection with the preparation,
execution and delivery of this Assignment.
14. This Assignment shall be binding upon the parties to the Master
Agreement, the Lease and the other Operative Documents and their respective
successors and assigns.
15. Any provision in this Assignment that is held to be inoperative,
unenforceable or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
in that jurisdiction or the operation, enforceability or validity of that
provision in any other jurisdiction, and to this end the provisions of this
Assignment are declared to be severable.
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IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed and delivered and attested by an officer thereunto duly authorized as
of the day and year first above written.
ASSIGNOR:
EQUIFAX INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President, General Counsel
and Secretary
Witnessed By:
/s/ Xxxxxxx X. Xxx
-------------------------------------
Name: Xxxxxxx X. Xxx
/s/ W. Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: W. Xxxxxxx Xxxxxxxxx
Florida
IN WITNESS WHEREOF, the Assignee has caused this Assignment to be duly
executed and delivered and attested by an officer thereunto duly authorized as
of the day and year first above written.
ASSIGNEE:
CERTEGY INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Assistant
Secretary
Witnessed By:
/s/ Xxxxxxx X. Xxx
-------------------------------------
Name: Xxxxxxx X. Xxx
/s/ W. Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: W. Xxxxxxx Xxxxxxxxx
Florida
IN WITNESS WHEREOF, the Lessor has caused this Assignment to be duly
executed and delivered and attested by an officer thereunto duly authorized as
of the day and year first above written.
LESSOR:
PREFCO VI LIMITED PARTNERSHIP
By: AFG PREFCO GP, LLC, a Texas limited
liability company, as general
partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
Witnessed By:
/s/ Xxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Name:
-------------------------------
Florida
IN WITNESS WHEREOF, the Agent and Lease Participant have caused this
Assignment to be duly executed and delivered and attested by an officer
thereunto duly authorized as of the day and year first above written.
AGENT AND LENDER
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Witnessed By:
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Name:
-------------------------------
Florida
STATE OF Georgia )
) ss.
COUNTY OF Xxxxxx )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared Xxxx X. Xxxx, to me known to be the Vice President, General
Counsel and Secretary of EQUIFAX INC., a Georgia corporation, who is described
in and who executed the foregoing instrument and who is either personally known
to me or produced __________________ as identification, and who acknowledged
before me that he executed the same for the purposes expressed therein.
WITNESS my hand and official seal in the county and state aforesaid this
26th day of June, 2001.
[Notary Seal] /s/ Xxxxx Xxxxxxx
----------------------------------------
(Notary Public)
My commission expires: 00/00/00
Xxxxxxx
XXXXX XX Xxxxxxx )
) ss.
COUNTY OF Xxxxxx )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared Xxxxx X. Xxxxxxxx, to me known to be the Vice President and
Assistant Secretary of CERTEGY INC., a Georgia corporation, who is described in
and who executed the foregoing instrument and who is either personally known to
me or produced __________________ as identification, and who acknowledged before
me that he executed the same for the purposes expressed therein.
WITNESS my hand and official seal in the county and state aforesaid this
26th day of June, 2001.
[Notary Seal] /s/ Xxxxx Xxxxxxx
----------------------------------------
(Notary Public)
My commission expires: 00/00/00
Xxxxxxx
XXXXX XX Xxxxxxx )
) ss.
COUNTY OF Xxxxxx )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared Xxxxx X. Xxxxxx, to me known to be the Managing Director of
SUNTRUST BANK, a Georgia corporation, who is described in and who executed the
foregoing instrument and who is either personally known to me or produced n/a as
identification, and who acknowledged before me that he executed the same for the
purposes expressed therein.
WITNESS my hand and official seal in the county and state aforesaid this
25th day of June, 2001.
[Notary Seal] /s/ Xxxxx Xxxxxxx
----------------------------------------
(Notary Public)
My commission expires: March 1, 0000
Xxxxxxx
XXXXX XX XXXXX )
) ss.
COUNTY OF DALLAS )
The foregoing instrument was acknowledged before me this 22nd day of June,
2001, by Xxxxxxx X. Xxxxxxxxxx, President of AFG PREFCO GP, LLC, a Texas limited
liability company, as general partner of PREFCO VI LIMITED PARTNERSHIP, a
Connecticut limited partnership, on behalf of said company as general partner of
said partnership. He is personally known tome.
WITNESS my hand and official seal in the county and state aforesaid this
22nd day of June, 2001.
[Notary Seal] /s/ Xxxx X. Xxxxxxxx
----------------------------------------
(Notary Public)
My commission expires: 12/17/01
Florida
EXHIBIT A
Legal Description
Xxxx 0, Xxxxx 0, XXXXXXXXX XXXXXX SECOND REPLAT, according to map or plat
thereof recorded in Plat Book 107, page 73, of the public records of Pinellas
County, Florida
Exhibit B
CERTEGY CARD SERVICES, INC.
00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
July 6, 2001
To Lessor, the Agent and the Lender as defined in
the Master Agreement hereinafter referred to
Re: Florida Synthetic Lease Transaction
Ladies and Gentlemen:
I am Corporate Vice President, General Counsel and Secretary of Certegy
Inc., a Georgia corporation ("Certegy"), and have reviewed fully executed
counterparts of that certain Assignment and Assumption of Lease and other
Operative Documents dated as of June 25, 2001 (the "Assignment") among Equifax
Inc. (the "Original Lessee"), Certegy, as Assignee of the Original Lessee,
Prefco VI Limited Partnership (the "Lessor"), and SunTrust Bank (the "Agent" or
the "Lender"), as the Agent and the Lender. This opinion is being furnished to
you at the request of Certegy pursuant to Section 7 of the Assignment.
This opinion letter is limited by, and is in accordance with, the January
1, 1992 edition of the Interpretative Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia (the
"INTERPRETATIVE STANDARDS"), which Interpretative Standards are incorporated in
this opinion letter by this reference.
In connection with this representation, I have examined fully executed
counterparts of the following documents (together with the Assignment, the
"Operative Documents"):
(a) the Master Agreement (Florida Property), dated as of December 30,
1999, as amended (the "Master Agreement"), among Original Lessee, the Lessor,
Atlantic Financial Group, Ltd. and the Agent;
(b) Lease Agreement dated as of December 30, 1999 between Lessor and
Original Lessee; and
(c) Operative Guaranty dated as of December 30, 1999 made by Original
Lessee in favor of the Funding Parties as defined in such Operative Guaranty.
In the capacity described above, I also have considered such matters of law
and of fact, together with such other records and documents of Certegy,
certificates of officers or other representatives of Certegy (including, but not
limited to, the organizational documents for Certegy
certified to be true and complete in certificates delivered by Certegy to the
Agent and the Lender and the representations and covenants of the parties to the
Assignment as set forth therein), certificates of public officials, and such
other documents as I have deemed appropriate for the opinions and confirmations
herein set forth.
The opinions set forth herein are limited to the laws of the State of
Georgia (the "STATE") and any applicable federal laws of the United States.
Without limiting the provisions of the Interpretative Standards, I express
no opinion with respect to any matters regarding compliance with any fiduciary
or similar obligations by any person or entity, or regarding any matters related
to solvency or capitalization or otherwise involving the financial capacity or
viability of any person or entity. I also note that certain consents and waivers
relevant to any opinions in paragraph 4 below are subject to time limits and/or
conditions that require additional actions in the future.
Based upon the foregoing, and subject to the other exceptions, assumptions
and qualifications set forth or incorporated herein by reference, it is my
opinion that:
1. Certegy is duly organized as a corporation, and is existing, and in good
standing, under the laws of the State of Georgia. Certegy is duly qualified as a
foreign corporation and in good standing in Wisconsin.
2. Certegy has the corporate power to execute and deliver the Assignment,
to perform its obligations thereunder, and to own and use its assets and to
conduct its business.
3. Certegy has duly authorized the execution and delivery of the Assignment
and all performance by it thereunder.
4. The execution and delivery by Certegy of the Assignment do not, and if
Certegy were now to perform its obligations thereunder, such performance would
not result in any:
(i) violation of the articles of incorporation or by-laws of Certegy;
(ii) violation of any existing United States federal or State
constitution, statute, regulation, rule, order or law to which such
Certegy or its assets are subject;
(iii) breach of or default of any material written agreements to
which, to my knowledge, Certegy or its assets are subject;
(iv) creation or imposition of any contractual lien or security
interest in, on or against Certegy's assets under any material written
agreements to which, to my knowledge, Certegy or its assets are
subject (except as may be contemplated by the Assignment); or
(v) violation of any judicial or administrative decree, writ, judgment
or order to which, to my knowledge, Certegy or its assets are subject.
This opinion letter has been delivered solely for the benefit of the
addressees and their respective transferees and counsel, as well as Xxxxxxxxxx
Xxxxxxxx LLP, pursuant to the Assignment and may not be relied upon by any other
person or entity or for any other purpose without the express written permission
of the undersigned.
Very truly yours,
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Corporate Vice
President, General Counsel and Secretary
of Certegy Inc.
Exhibit C
ATTORNEYS AT LAW
Suite 2800
1100 Peachtree Street
XXXXXXXXXX XXXXXXXX LLP Xxxxxxx, Xxxxxxx 00000-0000
Telephone: 000.000.0000
Facsimile: 404.815.6555
Web site: xxx.xxxxxxxxxxxxxxxxxx.xxx
July 6, 2001
To Lessor, the Agent and the Lender as defined in the Master Agreement
hereinafter referred to
Re: Florida Synthetic Lease Transaction
Ladies and Gentlemen:
We have served as special counsel for Certegy Inc., a Georgia corporation
("Certegy"), in connection with the execution of that certain Assignment and
Assumption of Lease and other Operative Documents dated as of June 25, 2001 (the
"Assignment") among Equifax Inc. (the "Original Lessee"), Certegy, as Assignee
of the Original Lessee, Prefco VI Limited Partnership (the "Lessor"), and
SunTrust Bank (the "Agent" or the "Lender"). This opinion is being furnished to
you at the request of Certegy pursuant to Section 7 of the Assignment.
This opinion letter is limited by, and is in accordance with, the January
1, 1992 edition of the Interpretative Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia (the
"INTERPRETATIVE STANDARDS"), which Interpretative Standards are incorporated in
this opinion letter by this reference.
In connection with this representation, we have examined fully executed
counterparts of the following documents (together with the Assignment, the
"Operative Documents"):
(a) the Master Agreement (Florida Property), dated as of December 30,
1999, as amended (the "Master Agreement"), among Original Lessee, the Lessor,
Atlantic Financial Group, Ltd. and the Agent;
(b) Lease Agreement dated as of December 30,1999 between Lessor and
Original Lessee; and
(c) Operative Guaranty dated as of December 30, 1999 made by Original
Lessee in favor of the Funding Parties as defined in such Operative Guaranty.
In the capacity described above, we also have considered such matters of
law and of fact, together with such other records and documents of Certegy,
certificates of officers or other
ATLANTA - AUGUSTA - BRUSSELS - CHARLOTTE - LONDON
MIAMI - RALEIGH - RESTON - STOCKHOLM - XXXXXXXXXX - XXXXXXX-SALEM
XXXXXXXXXX XXXXXXXX LLP
July 6, 2001
Page 2
representatives of Certegy (including, but not limited to, the organizational
documents for Certegy certified to be true and complete in certificates
delivered by Certegy to the Agent and the Lender and the representations and
covenants of the parties to the Assignment as set forth therein), certificates
of public officials, and such other documents as we have deemed appropriate for
the opinions and confirmations herein set forth.
We also have examined a copy of, and with your permission, we have
relied upon the opinion letter of Xxxxx X. Xxxxxxxx, Esq., Corporate Vice
President, General Counsel and Secretary of Certegy, of even date herewith
addressed to you with respect to the matters covered thereby.
The opinions set forth herein are limited to the laws of the State of
Georgia (the "STATE") and any applicable federal laws of the United States.
Without limiting the provisions of the Interpretative Standards, we express
no opinion with respect to any matters regarding compliance with any fiduciary
or similar obligations by any person or entity, or regarding any matters related
to solvency or capitalization or otherwise involving the financial capacity or
viability of any person or entity.
Based upon the foregoing, and subject to the other exceptions, assumptions
and qualifications set forth or incorporated herein by reference, it is our
opinion that:
1. Certegy has duly executed and delivered the Assignment.
2. No consent, approval, authorization or other action by, or notice to or
filing with, any court or administrative or governmental body of the United
States or the State (other than the filing of the Assignment in the records of
the appropriate governmental authority) is required in connection with the
execution and delivery by Certegy of the Assignment or the incurrence by Certegy
of its obligations thereunder, except such consents, approvals, authorizations,
registrations or filings as have been made or obtained and are in full force and
effect.
3. The Assignment is enforceable against Certegy.
4. To our knowledge, Certegy is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
5. To our knowledge, Certegy is not a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company" as such terms are defined in the
Public Utility Holding Company Act of 1935 as amended.
XXXXXXXXXX XXXXXXXX LLP
July 6, 2001
Page 3
This opinion letter has been delivered solely for the benefit of the
addressees and their respective transferees and counsel pursuant to the
Assignment and may not be relied upon by any other person or entity or for any
other purpose without the express written permission of the undersigned.
Very truly yours,
XXXXXXXXXX XXXXXXXX LLP
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, a Partner
================================================================================
LEASE AGREEMENT
Dated as of December 30, 1999
between
PREFCO VI LIMITED PARTNERSHIP, as Lessor,
and
EQUIFAX INC., as Lessee
[Florida Property]
================================================================================
THIS LEASE AGREEMENT IS GIVEN IN CONNECTION WITH A SYNTHETIC LEASE TRANSACTION
IN WHICH A MORTGAGE AND SECURITY AGREEMENT, A COLLATERAL ASSIGNMENT OF THIS
LEASE, AND THIS LEASE WILL BE RECORDED AS PART OF A SINGLE TRANSACTION. PAYMENTS
DUE UNDER THE LEASE WILL BE MADE BY THE LESSEE TO THE MORTGAGEE RATHER THAN THE
MORTGAGOR, IN SATISFACTION OF MORTGAGOR'S LOAN OBLIGATIONS TO MORTGAGEE, AS
PROVIDED IN THE COLLATERAL ASSIGNMENT OF LEASE. DOCUMENTARY STAMP TAXES ARE
BEING PAID UPON RECORDATION OF THE MORTGAGE IN THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
TABLE OF CONTENTS
(Lease Agreement)
Page
APPENDIX A
to
Master Agreement (Florida Property), Lease,
and Loan Agreement
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative Document),
document or instrument means such agreement, document or instrument as
amended, supplemented or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents and reference to any promissory note includes any
promissory note which is an extension or renewal thereof or a substitute or
replacement therefor;
(v) reference to any Applicable Law means such Applicable Law as
amended, modified, codified, replaced or reenacted, in whole or in part,
and in effect from time to time, including rules and regulations
promulgated thereunder and reference to any section or other provision of
any Applicable Law means that provision of such Applicable Law from time to
time in effect and constituting the substantive amendment, modification,
codification, replacement or reenactment of such section or other
provision;
(vi) reference in any Operative Document to any Article, Section,
Appendix, Schedule or Exhibit means such Article or Section thereof or
Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar import
shall be deemed references to an Operative
Document as a whole and not to any particular Article, Section or other
provision hereof;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding such
term;
(ix) "or" is not exclusive;
(x) relative to the determination of any period of time, "from" means
"from and including" and "to" means "to but excluding"; and
(xi) "knowledge" and "becomes aware" or words of similar meaning
means, with respect to the Lessee or any Subsidiary, that a Principal
Officer (A) has actual knowledge of such matters, or (B) from all the facts
and circumstances actually known to him at the time in question he has
reason to know such matters exist.
B. Accounting Terms. Unless otherwise specified in any Operative Document,
all terms of an accounting character used in any Operative Document shall be
interpreted, all accounting determinations under any Operative Document shall be
made, and all financial statements required to be delivered under any Operative
Document shall be prepared, in accordance with GAAP, applied on a basis
consistent (except for changes concurred in by the Lessee's and its Consolidated
Subsidiaries' independent public accountants or otherwise required by a change
in GAAP) with the most recent audited consolidated financial statements of the
Lessee and its Consolidated Subsidiaries delivered to the Funding Parties,
unless with respect to any such change concurred in by the Lessee's independent
public accountants or required by GAAP in determining compliance with any of the
provisions of any of the Operative Documents: (i) the Lessee shall have objected
to determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Funding Parties shall so object in
writing within 30 days after the delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 5.1 of the
Master Agreement, shall mean the financial statements referred to in Section
4.1(d) of the Master Agreement).
C. Conflict in Operative Documents. If there is any conflict between any
Operative Documents, such Operative Documents shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only
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to the extent) of such conflict, the Master Agreement shall prevail and control.
D. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears, terms defined
herein have the respective indicated meanings when used in each Operative
Document.
"A Loan" means the A Percentage of Loans made by Lenders pursuant to the
Loan Agreement and the Master Agreement.
"A Note" is defined in Section 2.2 of the Loan Agreement.
"A Percentage" means 78%.
"Accounts Management Assets and Liabilities" has the meaning set forth in
the CSC Agreement.
"Address" means with respect to any Person, its address set forth in
Schedule 8.2 to the Master Agreement or such other address as it shall have
identified to the parties to the Master Agreement in writing.
"Adjusted London Interbank Offered Rate" applicable to any Rent Period
means a rate per annum equal to the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Rent Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
"Affected Funding Party" is defined in Section 7.7(d) of the Master
Agreement.
"Affiliate" of any relevant Person means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the relevant Person (a
"Controlling Person"), (ii) any Person (other than the relevant Person or a
Subsidiary of the relevant Person) which is controlled by or is under common
control with a Controlling Person, or (iii) any Person (other than a Subsidiary
of the relevant Person) of which the relevant Person owns, directly or
indirectly, 20% or more of the common stock or equivalent equity interests. As
used herein, the term "control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
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a Person, whether through the ownership of voting securities, by contract or
otherwise.
"AFG" is defined in the preamble of the Master Agreement.
"After-Tax Basis" means (a) with respect to any payment to be received by
an Indemnitee (which, for purposes of this definition, shall include any Tax
Indemnitee), the amount of such payment supplemented by a further payment or
payments so that, after deducting from such payments the amount of all Taxes
(net of any current credits, deductions or other Tax benefits arising from the
payment by the Indemnitee of any amount, including Taxes, for which the payment
to be received is made) imposed currently on the Indemnitee by any Governmental
Authority or taxing authority with respect to such payments, the balance of such
payments shall be equal to the original payment to be received and (b) with
respect to any payment to be made by any Indemnitee, the amount of such payment
supplemented by a further payment or payments so that, after increasing such
payment by the amount of any current credits or other Tax benefits realized by
the Indemnitee under the laws of any Governmental Authority or taxing authority
resulting from the making of such payments, the sum of such payments (net of
such credits or benefits) shall be equal to the original payment to be made;
provided, however, for the purposes of this definition, and for purposes of any
payment to be made to either the Lessee or an Indemnitee on an after-tax basis,
it shall be assumed that (i) federal, state and local taxes are payable at the
highest combined marginal federal and state statutory income tax rate (taking
into account the deductibility of state income taxes for federal income tax
purposes) applicable to corporations from time to time and (ii) such Indemnitee
or the Lessee has sufficient income to utilize any deductions, credits (other
than foreign tax credits, the use of which shall be determined on an actual
basis) and other Tax benefits arising from any payments described in clause (b)
of this definition.
"Agent" means SunTrust Bank, Atlanta, a Georgia banking corporation, in its
capacity as agent under the Master Agreement and the Loan Agreement.
"Alterations" means fixtures, alterations, improvements, modifications and
additions to the Leased Property.
"Alternative Rate" means, for any period, an interest rate per annum equal
to the rate of interest most recently announced by the Agent in Atlanta, Georgia
from time to time as its prime lending rate (or other comparable reference rate)
for calculating interest on certain loans, which need not be the lowest interest
rate charged by such bank. If such prime lending rate or equivalent of such bank
changes from time to time after the date
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hereof, the Alternative Rate shall be automatically increased or decreased, as
the case may be, without notice to the Lessee as of the effective time of each
change in such prime lending rate or equivalent.
"Applicable Law" means all existing and future applicable laws (including
Environmental Laws), rules, regulations (including proposed, temporary and final
income tax regulations), statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of and interpretations by, any Governmental
Authority, and applicable judgments, decrees, injunctions, writs, orders or like
action of any court, arbitrator or other administrative, judicial or
quasi-judicial tribunal or agency of competent jurisdiction (including those
pertaining to health, safety or the environment (including, without limitation,
wetlands) and those pertaining to the construction, use or occupancy of the
Leased Property) and any restrictive covenant or deed restriction or easement of
record affecting the Leased Property.
"Appraisal" is defined in Section 5.21 of the Master Agreement.
"Appraiser" means an MAI appraiser satisfactory to the Agent and the
Lessor.
"Assignment Agreement" means with respect to the partnership interests in
the Lessor the instruments assigning such interests to AFG PREFCO GP, LLC and
AFG PREFCO, LLC.
"Assignment of Lease and Rents" means the Assignment of Lease and Rents,
dated as of the Closing Date, from the Lessor to the Agent.
"Authority" is defined in Section 7.6 of the Master Agreement.
"Authorized Officer" means (i) any of the following officers of the Lessee:
Chairman, President, Executive Vice Presidents, Senior Vice Presidents, Chief
Financial Officer, Treasurer, Assistant Treasurer and Corporate Controller, and
(ii) any other officers of the Lessee as the Lessee may notify the Agent in
writing from time to time.
"Awards" means any award or payment received by or payable to the Lessor or
the Lessee on account of any Condemnation or Event of Taking (less the actual
costs, fees and expenses incurred in the collection thereof, for which the
Person incurring the same shall be reimbursed from such award or payment).
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"B Loan" means the B Percentage of Loans made by a Lender pursuant to the
Loan Agreement and the Master Agreement.
"B Note" is defined in Section 2.2 of the Loan Agreement.
"B Percentage" means 18.5%.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
"Base Term" means, with respect to the Leased Property, (a) the period
commencing on the Closing Date and ending on May 29, 2009 or (b) such shorter
period as may result from earlier termination of the Lease as provided therein.
"Basic Rent" means, for any Lease Term, the rent payable pursuant to
Section 3.1 of the Lease, determined in accordance with the following: each
installment of Basic Rent payable on any Payment Date shall be in an amount
equal to the sum of (A) the aggregate amount of Lender Basic Rent payable on
such Payment Date, plus (B) the aggregate amount of Lessor Basic Rent payable on
such Payment Date, in each case for the Leased Property or Properties that are
then subject to the Lease.
"Board of Directors", with respect to a corporation, means either the Board
of Directors or any duly authorized committee of that Board which pursuant to
the by-laws of such corporation has the same authority as that Board as to the
matter at issue.
"Building" means 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 of the Leased Property, including, without limitation, all
furnaces, boilers, compressors, elevators, fittings, pipings, connectives,
conduits, ducts, partitions, equipment and apparatus of every kind and
description now or hereafter affixed or attached or used or useful in connection
with the Building, all equipment financed by the Lessor and/or the Lenders and
all Alterations (including all restorations, repairs, replacements and
rebuilding of such buildings, improvements and structures) thereto (but in each
case excluding trade fixtures financed other than by the Lessor or the Lenders).
"Business Day" means any day other than a Saturday, Sunday or other day on
which banks are required or authorized to be closed for business in Atlanta,
Georgia.
"Capital Stock" means any nonredeemable capital stock of a Person (to the
extent issued to another Person), whether common or preferred.
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"Cash Flow" means the sum of the Lessee's and its Consolidated
Subsidiaries', for any applicable period, (i) Consolidated Net Income, plus (ii)
Consolidated Interest Expense, plus (iii) income taxes, plus (iv) depreciation
and amortization, all as determined on a consolidated basis in accordance with
GAAP.
"Casualty" means an event of damage or casualty relating to all or part of
the Leased Property that does not constitute an Event of Loss.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section 9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Inventory System established pursuant to CERCLA.
"Change of Law" is defined in Section 7.6 of the Master Agreement.
"Claims" means liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, proceedings, settlements,
utility charges, costs, expenses and disbursements (including, without
limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Closing Date" means the date on which the initial Funding occurs under the
Master Agreement.
"Commitment" means as to each Funding Party, its obligation to make
Fundings as investments in the Leased Property, or to make Loans to the Lessor
in an aggregate amount not to exceed at any one time outstanding the amount set
forth for such Funding Party on Schedule 2.2 to the Master Agreement (as it may
be adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Commitment Percentage" means as to any Funding Party, at a particular
time, the percentage of the aggregate Commitments in effect at such time
constituted by such Funding Party's Commitment, as such percentage is shown for
such Funding Party on Schedule 2.2 to the Master Agreement (as it may be
adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Compliance Certificate" shall have the meaning set forth in Section 5.1 of
the Master Agreement.
"Condemnation" means any condemnation, requisition, confiscation, seizure
or other taking or sale of the use,
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occupancy or title to the Leased Property or any part thereof in, by or on
account of any actual eminent domain proceeding or other action by any
Governmental Authority or other Person under the power of eminent domain or any
transfer in lieu of or in anticipation thereof, which in any case does not
constitute an Event of Taking. A Condemnation shall be deemed to have "occurred"
on the earliest of the dates that use, occupancy or title is taken.
"Consolidated Companies" means, collectively, Lessee and all of its
Subsidiaries.
"Consolidated Debt" means at any date the Debt of the Lessee and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Funded Debt" means, with respect to the Lessee and its
Consolidated Subsidiaries at any date and as determined on a consolidated basis,
the sum (without duplication) of (i) Long-Term Debt, plus (ii) capital leases
(excluding any Synthetic Lease), plus (iii) Current Maturities of Long-Term
Debt, plus (iv) Short-Term Debt, plus (v) all Debt Guaranteed by the Lessee or
any of its Consolidated Subsidiaries (other than Debt of the Lessee or any of
its Consolidated Subsidiaries).
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Lessee or any of its
Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net Income of the
Lessee and its Consolidated Subsidiaries determined on a consolidated basis, but
excluding (i) extraordinary items and (ii) any equity interests of the Lessee or
any Subsidiary in the unremitted earnings of any Person that is not a
Subsidiary.
"Consolidated Net Tangible Assets" means, at any time, Consolidated Total
Assets, less the sum of the value, as set forth or reflected on the most recent
consolidated balance sheet of the Lessee and its Consolidated Subsidiaries,
prepared in accordance with GAAP, of:
(A) All assets which would be treated as intangible assets for balance
sheet presentation purposes under GAAP, excluding "Purchased Data Files", but
including without limitation goodwill (as determined by the Lessee in a manner
consistent with its past accounting practices and in accordance with GAAP),
trademarks, tradenames, copyrights, patents and technologies, and unamortized
debt discount and expense;
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(B) To the extent not included in (A) of this definition, any amount
at which shares of Capital Stock of the Lessee appear as an asset on the balance
sheet of its Consolidated Subsidiaries; and
(C) To the extent not included in (A) of this definition, deferred
expenses.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Lessee and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with those
of the Lessee in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, at any time, the total assets of the
Lessee and its Consolidated Subsidiaries, determined on a consolidated basis, as
set forth or reflected on the most recent consolidated balance sheet of the
Lessee and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Contractual Obligation" of any Person means any provision of any security
issued by such Person or of any agreement, instrument or undertaking under which
such Person is obligated or by which it or any of the property owned by it is
bound.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Lessee are treated as a single employer under Section
414 of the Tax Code.
"Credit Agreement" means the Credit Agreement dated as of November 21, 1997
among the Lessee, certain Wholly Owned Subsidiaries of the Lessee, the banks
party thereto and Wachovia Bank, N.A. as agent.
"CSC" means Computer Sciences Corporation, a Texas corporation.
"CSC Agreement" means the Agreement for Computerized Credit Reporting
Services and Options to Purchase and Sell Assets, dated as of the 1st day of
August, 1988, among The Credit Bureau, Incorporated of Georgia, the Lessee, CSC,
CSC Credit Services, Inc., Credit Bureau of Cincinnati, Inc., Credit Bureau of
Greater Kansas City, Inc., Xxxxx Holding Company, CSC Credit Services of
Minnesota, Inc. and CSC Accounts Management, Inc.
"CSC Put" means either of (i) the giving of any notice to the Lessee or any
Affiliate of the Lessee in accordance with the
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CSC Agreement which shall require the Lessee or any Affiliate of the Lessee to
purchase or otherwise acquire the Accounts Management Assets and Liabilities, or
the Subsidiaries' Assets and Liabilities, or both of them; or (ii) the
occurrence of an event or series of events which shall result at any time or
times in the direct or indirect ownership by the Lessee, any one or more
Affiliates of the Lessee, or any combination of the Lessee and any one or more
of its Affiliates, of the Accounts Management Assets and Liabilities, or the
Subsidiaries' Assets and Liabilities, or both of them.
"Current Maturities of Long Term Debt" means all payments in respect of
Long Term Debt (other than Debt under the Credit Agreement) that are required to
be made within one year from the date of determination, whether or not the
obligation to make such payments would constitute a current liability of the
obligor under GAAP.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except (A) trade accounts payable arising in the ordinary course of
business and (B) any obligation relating to or arising out of the CSC Put prior
to the actual payment therefor, (iv) all obligations of such Person as lessee
under capital leases (excluding, however, Synthetic Lease), (v) all obligations
of such Person to reimburse any bank or other Person in respect of amounts
payable under a banker's acceptance, (vi) all Redeemable Preferred Stock of such
Person (in the event such Person is a corporation), (vii) all obligations of
such Person to reimburse any bank or other Person in respect of amounts paid or
to be paid under a letter of credit or similar instrument, (viii) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, and (ix) all Debt and other obligations of others
Guaranteed by such Person (other than the Debt and other obligations of the
Lessee or the Consolidated Subsidiaries of the Lessee Guaranteed by,
respectively, the Lessee or the Consolidated Subsidiaries of the Lessee).
"Deed" means, with respect to the remainder interest in the Land, a Limited
Warranty Deed, dated the Closing Date, from the applicable Seller to the Lessor,
conveying such Land.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
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"Domestic Business Day" means any Business Day other than a Business Day on
which banks are required or authorized to be closed for business in New York
City, New York.
"Eligible Assignee" means any of the following: (i) a commercial bank
organized under the laws of the United States, or any State thereof, and having
total assets in excess of $100,000,000; (ii) a savings and loan association or
savings bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $100,000,000; (iii) a commercial
bank organized under the laws of any other country having total assets in excess
of $100,000,000, provided that such bank is acting through a branch or agency
located in the United States; (iv) a finance company, insurance company or other
financial institution, lender or fund (whether a corporation, partnership or
other entity) which is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business, and having total assets
in excess of at least $100,000,000; (v) any Funding Party or any Affiliate of
any Funding Party; or (vi) any other Person consented to by the Lessee and the
Agent, such consent not unreasonably to be withheld.
"Environmental Audit" means, with respect to each parcel of Land, a Phase I
Environmental Assessment, which meets or exceeds ASTM Standard E1527-97 and is
dated no more than 60 days prior to the related Closing Date, by an
environmental services firm satisfactory to the Funding Parties.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Law.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Lessee or any Consolidated Subsidiary required by any
Environmental Law.
"Environmental Judgments and Orders" means all judgments, decrees or orders
arising from or in any way associated with any Environmental Law, whether or not
entered upon consent or written agreements with an Environmental Authority or
other entity arising from or in any way associated with any Environmental Law,
whether or not incorporated in a judgment, decree or other.
"Environmental Laws" means and include the Resource Conservation and
Recovery Act of 1976, (RCRA) 42 U.S.C. Sections 6901-6987, as amended by the
Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. Sections 9601-9657, (CERCLA), the
Clean Air Act, 42 U.S.C.
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Sections 7401 et seq., the Occupational Safety and Health Act, the Toxic
Substances Control Act, the Emergency Planning and Community Right to Know Act
and any comparable or implementing federal, state or local environmental laws,
ordinances, rules, orders, statutes, decrees, judgments, injunctions, codes and
regulations, and any other federal, state or local laws, ordinances, rules,
codes and regulations, and any other federal, state or local laws, ordinances,
rules, codes and regulations relating to the environment, human health or
natural resources or the regulation or control of or imposing liability or
standards of conduct concerning human health, the environment, Hazardous
Materials or the clean-up or other remediation of the Leased Property, or any
part thereof, as any of the foregoing may have been from time to time amended,
supplemented or supplanted.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Law.
"Environmental Notices" means notice from any Environmental Authority or by
any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Law, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any, violation of any
Environmental Law or any investigations concerning any violation of any
Environmental Law.
"Environmental Permits" means all permits, licenses, authorizations,
certificates and approvals of Governmental Authorities required by Environmental
Law.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental Law.
"Environmental Releases" means releases as defined in CERCLA or under any
applicable Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
"ERISA Affiliate" means, with respect to any Person, each trade or business
(whether or not incorporated) which is a member of a group of which that Person
is a member and which is under common control within the meaning of the
regulations promulgated under Section 414 of the Tax Code.
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"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for the Agent (as the same may be
adjusted for any other Funding Party in accordance with Section 7.7 of the
Master Agreement in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Funding Party to United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of the effective date of
any change in the Euro-Dollar Reserve Percentage.
"Event of Default" means any event or condition designated as an "Event of
Default" in Article XII of the Lease.
"Event of Loss" is defined in Section 10.1 of the Lease.
"Event of Taking" is defined in Section 10.2 of the Lease.
"Existing Lease" means the Agreement of Sublease between Honeywell and
Equifax Payment Services, Inc. dated November 30, 1995.
"Fair Market Rental Value" means, with respect to the Leased Property, the
fair market rental value as determined by a qualified certified independent
appraiser chosen by the Lessor that would be obtained in an arm's-length lease
between an informed and willing lessee and an informed and willing lessor, in
either case under no compulsion to lease, and neither of which is related to the
Lessor or Lessee for the lease of the Leased Property on the terms set forth, or
referred to, in the Lease. Such fair market rental value shall be calculated as
the value for the use of the Leased Property to be leased in place at the Land,
assuming, in the determination of such fair market rental value, that the Leased
Property is in the condition and repair required to be maintained by the terms
of the related Lease (unless such fair market rental value is being determined
for the purposes of Section 13.1 of the Lease and except as otherwise
specifically provided in the Lease, in which case this assumption shall not be
made).
"Fair Market Sales Value" means, with respect to the Leased Property or any
portion thereof, the fair market sales value as determined by a qualified
certified independent appraiser chosen
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by the Lessor or, so long as the Funded Amounts are outstanding, the Agent that
would be obtained in an arm's-length transaction between an informed and willing
buyer (other than a lessee currently in possession) and an informed and willing
seller, under no compulsion, respectively, to buy or sell and neither of which
is related to the Lessor or Lessee, for the purchase of the Leased Property.
Such fair market sales value shall be calculated as the value for the use of the
Leased Property, assuming, in the determination of such fair market sales value,
that the Leased Property is in the condition and repair required to be
maintained by the terms of the Lease (unless such fair market sales value is
being determined for purposes of Section 13.1 of the Lease and except as
otherwise specifically provided in the Lease or the Master Agreement, in which
case this assumption shall not be made).
"Final Rent Payment Date" with respect to the Leased Property is defined in
Section 13.1(e) of the Lease.
"Fiscal Quarter" means any fiscal quarter of the Lessee.
"Fiscal Year" means any fiscal year of the Lessee.
"Funded Amount" means, as to the Lessor, the Lessor's Invested Amounts,
and, as to each Lender, the outstanding principal of such Lender's Loans.
"Funding" means any funding by the Funding Parties pursuant to Section 2.2
of the Master Agreement.
"Funding Date" means the Closing Date on which the Funding occurs under
Section 2 of the Master Agreement.
"Funding Office" means for each Funding Party the office such Funding Party
may designate in writing from time to time to the Lessee and the Agent as its
funding office.
"Funding Parties" means the Lessor, the Agent and the Lenders,
collectively.
"Funding Party Balance" means, with respect to the Leased Property, (i) for
the Lessor as of any date of determination, an amount equal to the sum of the
outstanding related Lessor's Invested Amount, all accrued and unpaid Yield on
such outstanding related Lessor's Invested Amount, all unpaid related fees owing
to the Lessor under the Operative Documents, and all other related amounts owing
to the Lessor by the Lessee under the Operative Documents, and (ii) for any
Lender as of any date of determination, an amount equal to the sum of the
outstanding related Loans of such Lender, all accrued and unpaid interest
thereon, all unpaid related fees owing to such Lender under the
-14-
Operative Documents, and all other related amounts owing to such Lender by the
Lessee under the Operative Documents.
"Funding Request" is defined in Section 2.2 of the Master Agreement.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section B of this Appendix A,
are to be used in making the calculations for purposes of determining compliance
with the terms of the Operative Documents.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law and shall include, without limitation, all citings, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of the Leased Property.
"Governmental Authority" means any foreign or domestic federal, state,
county, municipal or other governmental or regulatory authority, agency, board,
body, commission, instrumentality, court or any political subdivision thereof.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means the Lessee, in its capacity as guarantor under the
Operative Guaranty.
"Hazardous Materials" means any pollutant, contaminant, waste, hazardous or
toxic chemical including asbestos containing
-15-
materials in any form or condition; urea formaldehyde foam insulation;
polychlorinated biphenyls (PCBs) in any form or condition; including, without
limitation, any solid or hazardous waste, as defined in the Resource
Conservation and Recovery Act of 1980, 42 U.S.C. Section 6901 et seq. and its
implementing regulations and amendments, or in any applicable state or local law
or regulation, any "hazardous substance", "pollutant", or "contaminant" as
defined in CERCLA, or in any applicable state or local law or regulation;
gasoline, or any other petroleum product or by-product, including, crude oil or
any fraction thereof; toxic substances, as defined in the Toxic Substances
Control Act of 1976, or in any applicable state or local law or regulation; or
insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable state
or local law or regulation, as each such Act, statute or regulation may be
amended from time to time.
"Honeywell" means Honeywell Inc., a Delaware corporation.
"Honeywell Lease" means the existing lease from Lessor to Honeywell.
"Indemnified Risks" is defined in Section 7.1 of the Master Agreement.
"Indemnitee" means the Agent (in its individual capacity and in its
capacity as Agent), each Lender, and the Lessor, and their respective
Affiliates, successors, permitted assigns, permitted transferees, employees,
officers, directors and agents; provided, however, that in no event shall the
Lessee be an Indemnitee.
"Indemnitee Group" means the respective Affiliates, employees, officers,
directors and agents of the Agent (in its individual capacity), each Lender or
the Lessor, as applicable; provided, however, that in no event shall the Lessee
be a member of the Indemnitee Group.
"Interest Coverage Ratio" means, for any period of determination, the ratio
of the Lessee's and its Consolidated Subsidiaries' (i) Consolidated Net Income
before Consolidated Interest Expense and income taxes, to (ii) Consolidated
Interest Expense, such ratio being calculated on a consolidated basis for the
Fiscal Quarter just ended and the immediately preceding three Fiscal Quarters.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, making of a time deposit with such Person,
Guarantee or assumption of any obligation of such Person or otherwise.
-16-
"Investment Guidelines" means the guidelines for investment of funds of the
Lessee and the Subsidiaries as approved by the Board of Directors of the Lessee
or an authorized executive committee thereof and in effect on the Initial
Closing Date, a copy of which has been furnished to the Funding Parties, as
modified from time to time with the approval of the Board of Directors of the
Lessee or an authorized executive committee with notification to the Funding
Parties.
"Land" means the land described in the Lease.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, treaties or decrees of any governmental or political
subdivision or agency thereof, or of any court or similar entity established by
any thereof.
"Lease" means the Lease Agreement dated as of December 30, 1999 between the
Lessee and the Lessor, with such modifications as are satisfactory to the Lessor
and the Agent in conformity with Applicable Law to assure customary remedies in
favor of the Funding Parties in the jurisdiction where the Leased Property is
located.
"Lease Balance" means, with respect to the Leased Property, as of any date
of determination, an amount equal to the sum of all Funding Party Balances.
"Lease Term" with respect to the Lease means (a) the Base Term, as it may
be renewed pursuant to Section 14.9 of the Lease or (b) such shorter period as
may result from earlier termination of the Lease as provided therein.
"Lease Termination Date" means the last day of the Lease Term, as the same
may be accelerated pursuant to the Lease.
"Leased Property" means Land and the related Building(s).
"Leased Property Balance" means, with respect to the Leased Property, as of
any date of determination, an amount equal to that portion of the Lease Balance
which relates to the Leased Property.
"Lender Basic Rent" means, for any Rent Period under the Lease when a Loan
is outstanding, the aggregate amount of interest accrued on the Loans related to
the Leased Property subject to the Lease pursuant to Section 2.5 of the Loan
Agreement during such Rent Period.
"Lenders" means such financial institutions as are, or who may hereafter
become, parties to the Loan Agreement as Lenders to the Lessor.
-17-
"Lessee" is defined in the preamble to the Master Agreement.
"Lessor" is defined in the preamble to the Master Agreement.
"Lessor Basic Rent" means, for any Rent Period under any Lease, the
aggregate amount of Yield accrued on the Lessor's Invested Amounts under the
Lease under Section 2.3(a) of the Master Agreement during such Rent Period.
"Lessor Liens" means Liens on or against the Leased Property, the Lease,
any other Operative Document or any payment of Rent (a) which result from any
act or omission of, or any Claim against, the Lessor unrelated to the
transactions contemplated by the Operative Documents or (b) which result from
any Tax owed by the Lessor, except any Tax for which the Lessee is obligated to
indemnify (including, without limitation, in the foregoing exception, any
assessments with respect to the Leased Property noted on the related Title
Policy or assessed in connection with any construction or development by the
Lessee).
"Lessor's Invested Amount" means the amounts funded by the Lessor pursuant
to Section 2 of the Master Agreement that are not proceeds of Loans by a Lender.
"LIBOR Advance" means that portion of the Funded Amount bearing interest or
accruing yield based on the Adjusted London Interbank Offered Rate.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing
(excluding, however, any Synthetic Lease). For the purposes of the Operative
Documents, the Lessee or any Consolidated Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease under
GAAP or a Synthetic Lease) relating to such asset.
"Loan" shall have the meaning specified in Section 2.1 of the Loan
Agreement.
"Loan Agreement" means the Loan Agreement dated as of December 30, 1999
among the Lessor, the Agent and the Lenders.
-18-
"Loan Documents" means the Loan Agreement, the Notes, the Assignment of
Lease and Rents, the Mortgage and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section 5.1 of
the Loan Agreement, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, event or act has been satisfied.
"Loan Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"London Interbank Offered Rate" means for any Rent Period the rate per
annum determined on the basis of the offered rate for deposits in Dollars of
amounts equal or comparable to the principal amount of the Funded Amounts
offered for a term comparable to such Rent Period, which rates appear on Dow
Xxxxx Markets, Inc. Page 3750 (formerly known as Dow Xxxxx Telerate Service Page
3750) as of 11:00 A.M. (London, England time), 2 Euro-Dollar Business Days prior
to the first day of such Rent Period, provided that (i) if more than one such
offered rate appears on the Dow Xxxxx Markets Inc. Page, the "London Interbank
Offered Rate" will be the arithmetic average (rounded upward, if necessary, to
the next higher 1/100th of 1%) of such offered rates; (ii) if no such offered
rates appear on such page, the "London Interbank Offered Rate" for such Rent
Period will be the arithmetic average (rounded upward, if necessary, to the next
higher 1/16th of 1%) of rates quoted by not less than 2 major banks in New York
City, selected by the Agent, at approximately 10:00 A.M., New York City time, 2
Euro-Dollar Business Days prior to the first day of such Rent Period, for
deposits in Dollars offered to leading European banks for a period comparable to
such Rent Period in an amount comparable to the principal amount of the Funded
Amounts.
"Long-Term Debt" means at any date any Consolidated Debt (including,
without limitation, any subordinated Debt) which matures (or the maturity of
which may at the option of the Lessee or any Consolidated Subsidiary be extended
such that it matures) more than one year after such date.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
"Margin Regulations" means Regulation T, Regulation U and Regulation X of
the Board of Governors of the Federal Reserve System, as the same may be in
effect from time to time.
-19-
"Margin Stock" means "margin stock" as defined in Regulations T, U or X.
"Master Agreement" means the Master Agreement (Florida Property), dated as
of December 30, 1999, among the Lessee, AFG, the Lessor, the Agent and the
Lender.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Lessee and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Funding Parties under the Operative Documents, or the ability of each of the
Lessee and its Consolidated Subsidiaries taken as a whole to perform its
obligations under the Operative Documents to which it is a party, as applicable,
or (c) the legality, validity or enforceability of any Operative Document or (d)
the value, utility or useful life of the Leased Property, or (e) the priority,
perfection or status of any Funding Party's interest in the Leased Property.
"Mortgage" means that certain mortgage, deed of trust or security deed,
dated as of the Closing Date, by the Lessor to the Agent, in the form of Exhibit
D attached to the Master Agreement, with such modifications as are satisfactory
to the Lessor and the Agent in conformity with Applicable Law to assure
customary remedies in favor of the Agent in the jurisdiction where the Leased
Property is located.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Net Income" means, as applied to any Person for any period, the aggregate
amount of net income of such Person, after taxes, for such period, as determined
in accordance with GAAP.
"Notes" means the A Note and the B Note issued by the Lessor under the Loan
Agreement, and any and all notes issued in replacement or exchange therefor in
accordance with the provisions thereof.
"Obligations" means all amounts owed by, and obligations of, the Lessor to
the Lenders or the Agent under the Loan Agreement, Notes and other Operative
Documents.
-20-
"Officer's Certificate" of a Person means a certificate signed by the
Chairman of the Board or the President or any Executive Vice President or any
Senior Vice President or any other Vice President of such Person signing with
the Treasurer or any Assistant Treasurer or the Controller or any Assistant
Controller or the Secretary or any Assistant Secretary of the such Person, or by
any Vice President who is also Controller or Treasurer signing alone.
"Operating Profits" means, as applied to any Person for any period, the
operating revenue of such Person for such period, minus its costs of services
for such period, and minus its selling, general and administrative costs for
such period, but excluding therefrom all extraordinary gains or losses, as
determined in accordance with GAAP.
"Operative Documents" means the Master Agreement, the Operative Guaranty,
the Purchase Agreement, the Assignment Agreement, the Remainderman Conveyance,
the Lease, the Notes, the Loan Agreement, the Assignment of Lease and Rents, the
Mortgage and the other documents delivered in connection with the transactions
contemplated by the Master Agreement.
"Operative Guaranty" means the Guaranty dated as of December 30, 1999 by
the Guarantor in favor of the Funding Parties.
"Overdue Rate" means the lesser of (a) the highest interest rate per annum
permitted by Applicable Law and (b) (i) during the Rent Period in which the
payment default first occurs, the Adjusted London Interbank Offered Rate for
such Rent Period plus 2.50%, and (ii) after such Rent Period, an interest rate
per annum (calculated on the basis on a 365-day (or 366-day, if appropriate)
year equal to 2.0% above the Alternate Rate in effect from time to time.
"Partnership Agreement" means that certain Limited Partnership Agreement
dated October 26, 1990 between PREFCO VI Inc. and PREFCO VI LP Inc.
"Payment Date" means each January 15th, April 15th, July 15th, and October
15th during the Lease Term or, if such day is not a Euro-Dollar Business Day,
the next Euro-Dollar Business Day.
"Payment Date Notice" is defined in Section 2.3(e) of the Master Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, and any successor
thereto.
-21-
"Permitted Investments" means (i) direct obligations of the United States
of America and agencies guaranteed by the United States government having a
final maturity of one year or less from the date of purchase thereof; (ii)
certificates of deposit issued by, or bankers' acceptances of, or time deposits
with, any bank, trust company or national banking association incorporated or
doing business under the laws of the United States of America or one of the
states thereof having combined capital and surplus and retained earnings as of
its last report of condition of at least $500,000,000 and having a short-term
deposit debt rating of Al by S&P or Pl by Xxxxx'x (or, if neither such
organization shall rate such short-term deposits at any time, a rating equal to
the highest ratings assigned by any nationally recognized rating organization in
the United States of America) and having a final maturity of one year or less
from date of purchase thereof; and (iii) commercial paper of any holding company
of a bank, trust company or national banking association described in clause
(ii) and commercial paper of any corporation or finance company incorporated or
doing business under the laws of the United States of America or any state
thereof (other than the Lessee or any Affiliate thereof) having a rating
assigned to such commercial paper of Al by S&P or Pl by Xxxxx'x (or, if neither
such organization shall rate such commercial paper at any time, a rating equal
to the highest ratings assigned by any nationally recognized rating organization
in the United States of America) and having a final maturity of 270 days or less
from the date of purchase thereof.
"Permitted Liens" means the following with respect to the Leased Property:
(a) the respective rights and interests of the Lessee, the Lessor, the Agent,
and any Lender, as provided in the Operative Documents, (b) Liens for Taxes
either not yet due or being contested in good faith and by appropriate
proceedings, so long as enforcement thereof is stayed pending such proceedings,
(c) materialmen's, mechanics', workers', repairmen's, employees' or other like
Liens arising after the related Closing Date in the ordinary course of business
for amounts either not yet due or being contested in good faith and by
appropriate proceedings, so long as enforcement thereof is stayed pending such
proceedings, (d) Liens arising after such Closing Date out of judgments or
awards with respect to which at the time an appeal or proceeding for review is
being prosecuted in good faith, so long as the enforcement thereof has been
stayed pending such appeal or review, (e) easements, rights of way,
reservations, servitudes and rights of others against the Land which do not
materially and adversely affect the value or the utility of the Leased Property,
(f) other Liens incidental to the conduct of Lessee's business which were not
incurred in connection with the borrowing of money or the obtaining of advances
or credit and which do not in the aggregate materially detract from the value of
the Leased Property or materially impair the use thereof, (g) assignments,
-22-
leases and subleases expressly permitted by the Operative Documents and (h) the
Agreement Regarding Development and Option Agreement, the Tripartite Agreement,
the Existing Lease and the Honeywell Lease.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Tax Code and is either (i) maintained by a member of the Controlled
Group for employees of any member of the Controlled Group or (ii) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a member of the
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding 5 plan years made contributions.
"Potential Event of Default" means any event, condition or failure which,
with notice or lapse of time or both, would become an Event of Default.
"Principal Officer" means any of the Authorized Officers or the General
Counsel of the Lessee.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Lessee or any Consolidated Subsidiary, wherever located.
"Purchase Agreement" means with respect to any Land, the purchase agreement
with the Seller for the conveyance of such Land to the Lessor.
"Purchase Option" is defined in Section 14.1 of the Lease.
"Recourse Deficiency Amount" means, with respect to the Leased Property, as
of any date of determination thereof, the sum of the following relating to the
Leased Property: (i) the aggregate principal amount of the A Loans then
outstanding, plus (ii) the A Percentage of the Lessor's Invested Amounts then
outstanding, plus (iii) all accrued and unpaid Yield on the A Percentage of the
Lessor's Invested Amounts, plus (iv) all accrued and unpaid interest on the A
Loans.
"Redeemable Preferred Stock" of any Person means any preferred stock issued
by such Person which is at any time prior to November 21, 2002, the "Termination
Date" under the Credit Agreement either (i) mandatorily redeemable (by sinking
fund or
-23-
similar payments or otherwise) or (ii) redeemable at the option of the holder
thereof.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulations" means the income tax regulations promulgated from time to
time under and pursuant to the Tax Code.
"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means, with respect to the Leased Property, the earlier of
(i) the date that the Leased Property Balance has been paid in full, and (ii)
the date on which the Agent gives notice to the Lessor that the Lenders release
any and all interest they may have in the Leased Property, and all proceeds
thereof, and any rights to direct, consent or deny consent to any action by the
Lessor with respect to the Leased Property.
"Remainderman Conveyance" means the conveyance of the interest of the
remainderman in the Land pursuant to the Deed.
"Remarketing Option" is defined in Section 14.6 of the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Period" means in the case of LIBOR Advances, either a 1, 2, 3 or 6
month period; provided that:
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(a) The initial Rent Period shall begin on the Closing Date and end on
January 14, 2000.
(b) The initial Rent Period for any Funding shall commence on the
Funding Date of such Funding and each Rent Period occurring thereafter in
respect of such Funding shall commence on the day on which the next
preceding Rent Period expires;
(c) If any Rent Period would otherwise expire on a day which is not a
Business Day, such Rent Period shall expire on the next succeeding Business
Day, provided that if any Rent Period in respect of LIBOR Advances would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Rent
Period shall expire on the next preceding Business Day;
(d) Any Rent Period in respect of LIBOR Advances which begins on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Rent Period shall, subject to paragraph (e) below,
expire on the last Business Day of such calendar month; and
(e) No Rent Period shall extend beyond the Lease Termination Date.
"Report" is defined in Section 7.6 of the Master Agreement.
"Required Funding Parties" means, at any time, Funding Parties holding an
aggregate outstanding principal amount of Funded Amounts equal to at least 51%
of the aggregate outstanding principal amount of all Funded Amounts.
"Required Lenders" means, at any time, Lenders holding an aggregate
outstanding principal amount of Loans equal to at least 51% of the aggregate
outstanding principal amount of all Loans.
"Requirements of Law" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, permit, approval, authorization, license or variance, order or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, including, without
limitation, the Securities Act, the Securities Exchange Act, Regulations T, U
and X of the Board of Governors of the Federal Reserve System, and any building,
environmental or land use requirement or permit or occupational safety or health
law, rule or regulation.
-25-
"Responsible Officer" means the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the Board
of Directors, the President, any Senior Vice President or Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer.
"Restricted Information" means any agreement, document, report or
memorandum containing proprietary or confidential information (including
historical credit information, trade secrets and other information) relating to
persons other than the Lessee and its Consolidated Subsidiaries, including
Lessee's customers, subtenants and licenses and trade secrets relating to Lessee
and its Consolidated Subsidiaries.
"Restricted Investments" means Investments in joint ventures and in
Subsidiaries of the Lessee which are not Consolidated Subsidiaries. Restricted
Investments shall not include Investments made in the acquisition of a Person
which becomes a Consolidated Subsidiary upon the closing of such acquisition.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means any stock, shares, voting trust certificates, bonds,
debentures, notes or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Seller" means as to the Leased Property, the seller thereof to the Lessor
on the related Closing Date.
"Short-Term Debt" means at any date any Consolidated Debt (including,
without limitation, any subordinated Debt) which matures less than one year
after such date.
"Subsidiaries' Assets and Liabilities" has the meaning set forth in the CSC
Agreement.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other
-26-
persons performing similar functions are at the time directly or indirectly
owned by the Lessee.
"SunTrust Bank" is defined in the preamble to the Master Agreement.
"Supplemental Rent" means any and all amounts, liabilities and obligations
other than Basic Rent which the Lessee assumes or agrees or is otherwise
obligated to pay under the Lease or any other Operative Document (whether or not
designated as Supplemental Rent) to the Lessor, the Agent, any Lender or any
other party, including, without limitation, amounts under Article XVI of the
Lease, and indemnities and damages for breach of any covenants, representations,
warranties or agreements, and all overdue or late payment charges in respect of
any Funded Amount.
"Synthetic Lease" means any operating lease under GAAP for which the lessee
retains or obtains federal tax ownership of the property leased.
"Synthetic Lease Obligations" means any and all liabilities, indebtedness,
rent, and all other obligations of the Lessee or any Consolidated Subsidiary
owed under any Synthetic Lease.
"Tax" or "Taxes" is defined in Section 7.4 of the Master Agreement.
"Tax Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Tax Indemnitee" means the Lessor, the Agent, any Lender and their
respective Affiliates, successors, permitted assigns, permitted transferees,
employees, officers, directors and agents thereof, provided, however, that in no
event shall the Lessee be a Tax Indemnitee.
"Third Parties" means all lessees, sublessees, licensees and other users of
the Properties, excluding those users of the Properties in the ordinary course
of the Lessee's business and on a temporary basis.
"Title Insurance Company" means the company that has or will issue the
title policies with respect to a Leased Property, which company shall be
reasonably acceptable to the Funding Parties.
"Title Policy" is defined in Section 3.1 of the Master Agreement.
"Total Assets" means the total assets of the Consolidated Companies,
determined in accordance with GAAP.
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"Transaction" means all the transactions and activities referred to in or
contemplated by the Operative Documents.
"Tripartite Agreement/Option Agreement" means collectively the Tripartite
Agreement dated November 30, 1990 among Honeywell, Lessor and Florida Ralco
Limited Partnership and the Option and Subordination Agreement dated November
30, 1990 among Lessor and Florida Ralco Limited Partnership.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from time
to time.
"Unfunded Benefit Liabilities" means with respect to any Plan or
Multiemployer Plan at any time, the amount of unfunded benefit liabilities of
such Plan or Multiemployer Plan at such time as determined under ERISA Section
4001(a)(18) which shall not be less than the accumulated benefit obligation, as
disclosed in accordance with FAS 87, over the fair market value of Plan or
Multiemployer Plan assets.
"Voting Stock" shall mean the securities of any class or classes of the
Lessee the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the corporate directors of the Lessee (or
persons performing similar functions).
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares, or, in the case of any Subsidiary which is not organized or created
under the laws of the United States of America or any state thereof or the
District of Columbia, such nominal ownership interests which are required to be
held by third parties under the laws of the foreign jurisdiction under which
such Subsidiary was incorporated or organized) are at the time directly or
indirectly owned by the Lessee.
"Yield" is defined in Section 2.3 of the Master Agreement.
-28-
================================================================================
MASTER AGREEMENT
(FLORIDA PROPERTY)
Dated as of December 30, 1999
among
EQUIFAX INC.,
as Lessee and Guarantor,
PREFCO VI LIMITED PARTNERSHIP, as Lessor,
ATLANTIC FINANCIAL GROUP, LTD.
and
SUNTRUST BANK, ATLANTA, as Agent and Lender
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1 DEFINITIONS; INTERPRETATION.................................... 1
SECTION 2 ACQUISITION; NATURE OF TRANSACTION............................. 2
SECTION 2.1 Agreement to Acquire, Fund and Lease..................... 2
SECTION 2.2 Fundings................................................. 2
SECTION 2.3 Funded Amounts and Interest and Yield Thereon;
Facility Fee................. ........................ 3
SECTION 2.4 Lessee Owner for Tax Purposes............................ 4
SECTION 2.5 Amounts Due Under Lease.................................. 4
SECTION 3 CONDITIONS PRECEDENT; DOCUMENTS................................ 5
SECTION 3.1 Conditions to the Obligations of the Funding Parties on
the Closing Date...................................... 5
SECTION 3.2 Additional Conditions for the Closing Date............... 9
SECTION 3.3 Conditions to the Obligations of Lessee.................. 10
SECTION 3.4 Additional Conditions to the Obligations of the Funding
Parties on the Closing Date..... .................................. 11
SECTION 4 REPRESENTATIONS................................................ 11
SECTION 4.1 Representations of Lessee................................ 11
SECTION 4.2 Representations of the Lessor............................ 18
SECTION 4.3 Representations of each Lender........................... 20
SECTION 5 COVENANTS OF THE LESSEE........................................ 20
SECTION 5.1 Information.............................................. 21
SECTION 5.2 Inspection of Property, Books and Records................ 23
SECTION 5.3 Maintenance of Existence................................. 23
SECTION 5.4 Dissolution.............................................. 24
SECTION 5.5 Consolidations, Mergers and Sales of Assets.............. 24
SECTION 5.6 [Intentionally Left Blank]............................... 24
SECTION 5.7 Compliance with Laws; Payment of Taxes................... 25
SECTION 5.8 Insurance................................................ 25
SECTION 5.9 Change in Fiscal Year.................................... 25
SECTION 5.10 Maintenance of Property.................................. 25
SECTION 5.11 Environmental Notices.................................... 25
SECTION 5.12 Environmental Matters.................................... 25
SECTION 5.13 Environmental Release.................................... 26
SECTION 5.14 Heavy Metals............................................. 26
SECTION 5.15 Storage Tanks............................................ 26
SECTION 5.16 Transactions with Affiliates............................. 26
SECTION 5.17 Restricted Investments................................... 27
SECTION 5.18 Assignment of Lease and Rents............................ 27
SECTION 5.19 Debt of Consolidated Subsidiaries........................ 00
-x-
XXXXXXX 0.00 Xxxxxxxx Pledge.......................................... 27
SECTION 5.21 Interest Coverage Ratio.................................. 29
SECTION 5.22 Ratio of Consolidated Funded Debt to Cash Flow........... 29
SECTION 5.23 Appraisal................................................ 30
SECTION 6 TRANSFERS BY LESSOR AND LENDERS................................ 30
SECTION 6.1 Lessor Transfers......................................... 30
SECTION 6.2 Loan Agreement; Lender Transfers......................... 30
SECTION 6.3 Lessee Competitors....................................... 31
SECTION 6.4 Lessor's Covenants....................................... 31
SECTION 6.5 Existing Property Documents.............................. 32
SECTION 7 INDEMNIFICATION................................................ 33
SECTION 7.1 General Indemnification.................................. 33
SECTION 7.2 Environmental Indemnity.................................. 35
SECTION 7.3 Proceedings in Respect of Claims......................... 37
SECTION 7.4 General Tax Indemnity.................................... 39
SECTION 7.5 Basis for Determining Interest Rate Inadequate or
Unfair................................................ 46
SECTION 7.6 Illegality............................................... 46
SECTION 7.7 Increased Cost and Reduced Return........................ 46
SECTION 7.8 Alternative Rate Advances Substituted for Affected
LIBOR Advances........................................ 49
SECTION 7.9 Compensation............................................. 49
SECTION 7.10 Limitation on Certain Payment Obligations................ 50
SECTION 7.11 End of Term Indemnity.................................... 50
SECTION 8 MISCELLANEOUS.................................................. 51
SECTION 8.1 Survival of Agreements................................... 51
SECTION 8.2 Notices.................................................. 51
SECTION 8.3 Counterparts............................................. 51
SECTION 8.4 Amendments............................................... 52
SECTION 8.5 Headings, etc............................................ 53
SECTION 8.6 Parties in Interest...................................... 53
SECTION 8.7 GOVERNING LAW............................................ 53
SECTION 8.8 Expenses................................................. 53
SECTION 8.9 Severability............................................. 53
SECTION 8.10 Liabilities of the Funding Parties....................... 54
SECTION 8.11 Submission to Jurisdiction; Waivers...................... 54
SECTION 8.12 Liabilities of the Agent................................. 55
SECTION 8.13 Confidentiality.......................................... 55
-ii-
APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 1.1 Leased Property
SCHEDULE 2.2 Commitments
SCHEDULE 4.1(f) ERISA Matters
SCHEDULE 4.1(h) Subsidiaries
SCHEDULE 4.1(n) Environmental Matters
SCHEDULE 4.1(o) Capital Stock
SCHEDULE 5.12 Hazardous Materials
SCHEDULE 5.18 Existing Liens
SCHEDULE 6 Lessee Competitors
SCHEDULE 8.2 Notice Information
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C [INTENTIONALLY OMITTED]
EXHIBIT D Form of Mortgage
EXHIBIT E Form of Compliance Certificate
EXHIBIT F Form of Environmental Audit Reliance Letter
EXHIBIT G Forms of Opinions of Counsel
EXHIBIT H [INTENTIONALLY OMITTED]
EXHIBIT I Form of Payment Date Notice
EXHIBIT J Form of Assignment and Assumption Agreement
-iii-
MASTER AGREEMENT
(FLORIDA PROPERTY)
THIS MASTER AGREEMENT (FLORIDA PROPERTY), dated as of December 30, 1999 (as
it may be amended or modified from time to time in accordance with the
provisions hereof, this "Master Agreement"), is among EQUIFAX INC., a Georgia
corporation ("Lessee"),PREFCO VI LIMITED PARTNERSHIP, a Connecticut limited
partnership, as Lessor (the "Lessor"), ATLANTIC FINANCIAL GROUP, LTD., a Texas
limited partnership ("AFG"), and SUNTRUST BANK, ATLANTA, a Georgia banking
corporation, as Agent (the "Agent") and Lender.
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Master Agreement, the
Lease, the Loan Agreement and the other Operative Documents, (i) AFG
contemplates acquiring the partnership interests in the Lessor and causing the
Lessor to acquire the remainderman interest in the Leased Property, (ii) the
Lessor holds an estate for years in the Leased Property, will acquire the
remainderman interest in the Leased Property and contemplates leasing the Leased
Property to the Lessee under the Lease, (iii) the Lessor wishes to obtain, and
the Lenders are willing to provide, financing to the Lessor, and (vi) the Lessee
is willing to provide its Operative Guaranty to the Funding Parties.
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:
SECTION 1
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and not
defined herein shall have the meanings assigned thereto in Appendix A hereto for
all purposes hereof; and the rules of interpretation set forth in Appendix A
hereto shall apply to this Master Agreement.
SECTION 2
ACQUISITION; NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Fund and Lease. Subject to the terms and
conditions of this Master Agreement, on the Closing Date (i) AFG agrees to
acquire the partnership interests in the Lessor and to cause the Lessor to
acquire the remainderman interest in the Leased Property, (ii) the Lessor hereby
agrees to lease the Leased Property to the Lessee pursuant to the Lease, and
(iii) the Lessee hereby agrees to lease the Leased Property from the Lessor
pursuant to the Lease.
SECTION 2.2 Fundings.
(a) Funding on Closing Date. Subject to the terms and conditions of
this Master Agreement, on the Closing Date, the Lender shall make available to
the Lessor its Loans with respect to the Leased Property in an amount equal to
the product of such Lender's Commitment Percentage times the unpaid acquisition,
transaction and closing costs incurred by the Lessee through or to be paid upon
the Closing Date, which funds the Lessor shall use, together with Lessor funds
in an amount equal to the product of the Lessor's Commitment Percentage times
the unpaid acquisition, transaction and closing costs incurred by the Lessor
through or to be paid upon the Closing Date, and the Lessor shall lease the
Leased Property to the Lessee pursuant to the Lease.
(b) Aggregate Limits on Funded Amounts. The aggregate amount that the
Funding Parties shall be committed to provide as Funded Amounts under this
Master Agreement and the Loan Agreement shall not exceed (x) the costs of
purchase of remainderman interest in the Leased Property and the related
closing, transaction and financing costs, or (y) $23,175,000 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.
(c) Notice, Time and Place of Fundings. The Lessee shall give the
Lessor and the Agent an irrevocable prior written notice not later than 12:00
noon, Atlanta, Georgia, two Business Days prior to the proposed Closing Date
pursuant to a Funding Request in the form of Exhibit A (a "Funding Request"),
specifying the Closing Date, the amount of Funding requested, and the Rent
Period(s) therefor. All documents and instruments required to be delivered on
such Closing Date pursuant to this Master Agreement shall be delivered at the
offices of Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
2
60603, or at such other location as may be determined by the Lessor, the Lessee
and the Agent. Each Funding shall occur on a Business Day. 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 Lessee, with
receipt by the Lessee not later than 1:00 p.m., Atlanta, Georgia time, on the
Closing Date, upon satisfaction or waiver of the conditions precedent to such
Funding set forth in Section 3.
(d) Lessee's Deemed Representation for Each Funding. The Funding
Request by the Lessee shall be deemed a reaffirmation of the Lessee's indemnity
obligations in favor of the Indemnitees under the Operative Documents and a
representation by the Lessee to the Lessor, the Agent and the Lenders that on
the proposed Closing Date (i) the amount of Funding requested represents amounts
owing in respect of the purchase price of the Leased Property and transaction
and closing costs in respect of the Leased Property, (ii) no Event of Default or
Potential Event of Default exists, and (iii) the representations of the Lessee
set forth in Section 4.1 are true and correct in all material respects as though
made on and as of such Funding Date, except to the extent such representations
or warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date.
(e) Notwithstanding anything to the contrary set forth herein or in
the other Operative Documents, the 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.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Facility Fee.
(a) The Lessor's Invested Amount for the Leased Property outstanding
from time to time shall accrue yield ("Yield") at a rate per annum prior to
January 15, 2000 equal to the sum of the Adjusted London Interbank Offered Rate
for 30-day periods plus 1.50% and thereafter equal during each Rent Period to
the sum of the Adjusted London Interbank Offered Rate for such Rent Period plus
1.50% computed using the actual number of days elapsed and a 360 day year. If
all or a portion of the principal amount of or yield on the Lessor's Invested
Amounts shall not be paid when due (whether at the stated maturity, by
acceleration or
3
otherwise), such overdue amount shall, without limiting the rights of the Lessor
under the Lease, to the maximum extent permitted by law, accrue yield at the
Overdue Rate, in each case from the date of nonpayment until paid in full (as
well after as before judgment).
(b) Each Lender's Funded Amount for the Leased Property outstanding
from time to time shall accrue interest as provided in the Loan Agreement.
(c) Three Business Days prior to the last day of each Rent Period, the
Lessee shall deliver to the Lessor and the Agent a notice substantially in the
form of Exhibit I (each, a "Payment Date Notice"), appropriately completed,
specifying the allocation of the Funded Amounts related to such Rent Period to
the applicable subsequent 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 have a Rent Period of three (3) months. Notwithstanding the foregoing, the
initial Rent Period will end on January 14, 2000.
SECTION 2.4 Lessee Owner for Tax Purposes. It is the intent of the Lessee
and the Funding Parties that for federal, state and local tax purposes (A) the
Lessee owns the Leased Property and will be entitled to all tax benefits
ordinarily available to an owner of property similar to the Leased Property, (B)
the Lease will be treated as a financing arrangement, and (C) the Lessor will be
treated as a lender making loans to the Lessee. 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. Anything else herein or elsewhere to
the contrary notwithstanding, it is the intention of the Lessee and the Funding
Parties that: (i) 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, and principal of, the Loans in
respect of the Leased Property and Yield on, and principal of, the Lessor's
Invested Amounts, if any, in respect of the Leased Property on each Payment
Date; (ii) if the Lessee
4
elects the Purchase Option with respect to the Leased Property or becomes
obligated to purchase the Leased Property under the Lease, the Funded Amounts in
respect of the Leased Property, all interest and Yield thereon and all other
obligations of the Lessee owing to the Funding Parties in respect of the Leased
Property 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 and the A Percentage of the Lessor's Invested Amounts, if any, 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 B Percentage of the Lessor's Invested
Amounts, if any, the proceeds of the sale of the Leased Property; and (iv) upon
an Event of Default resulting in an acceleration of the 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 in respect of the Leased Property, and accrued interest thereon, the
Lessor's Invested Amounts in respect of the Leased Property, if any, and accrued
Yield thereon and all other obligations of the Lessee owing to the Funding
Parties in respect of the Leased Property.
SECTION 3
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties on the
Closing Date. The obligations of the Lessor and each Lender to carry out their
respective obligations under Section 2 of this Master Agreement to be performed
on the Closing Date 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 are required to be performed by such Funding
Party:
(a) Documents. The following documents shall have been executed and
delivered by the respective parties thereto:
(i) Assignment Agreements, etc. Assignment Agreements and
Remainderman Conveyances duly executed by the respective assignors
shall each have been delivered to AFG and the Lessor, with copies of
each
5
thereof to each Funding Party and shall be satisfactory in form and
substance to AFG and the Agent.
(ii) Mortgage and Assignment of Lease and Rents. Counterparts of
the Mortgage substantially in the form of Exhibit D attached hereto,
duly executed by the Lessor and in recordable form, shall have been
delivered to the Agent (which Mortgage shall secure all of the debt to
the Agent); and the Assignment of Lease and Rents in recordable form,
duly executed by the Lessor, shall have been delivered to the Agent.
(iii) Survey. The Lessee shall have delivered, or shall have
caused to be delivered, to the Lessor and the Agent, at the Lessee's
expense, an accurate survey of the Leased Property certified to the
Lessor and the Agent in a form satisfactory to the Lessor and the
Agent and showing no state of facts unsatisfactory to the Lessor or
the Agent in their reasonable discretion and prepared within seven
months of the Closing Date by a Person reasonably satisfactory to the
Lessor and the Agent. Such survey shall (1) be acceptable to the Title
Insurance Company for the purpose of providing extended coverage to
the Lessor and a lender's comprehensive endorsement to the Agent, (2)
show no material encroachments on such Land by structures owned by
others, and no material encroachments from any part of the Leased
Property onto any land owned by others, and (3) disclose no state of
facts reasonably objectionable to the Lessor, the Agent or the Title
Insurance Company, and be reasonably acceptable to each such Person.
(iv) Title and Title Insurance. On the Closing Date, the Lessor
shall receive from a title insurance company reasonably acceptable to
the Lessor and the Agent an ALTA Owner's Policy of Title Insurance
issued by such title insurance company and the Agent shall receive
from such title insurance company an ALTA Mortgagee's Policy of Title
Insurance issued by such title insurance company, in each case, in the
amount of $23,175,000.00, reasonably acceptable in form and substance
to the Lessor and the Agent, respectively (collectively, the "Title
Policy"). The Title Policy shall be dated as of the Closing Date, and,
to the extent permitted under Applicable Law, shall include
6
coverage over such matters as the Lessor or the Agent shall reasonably
request.
(v) Environmental Audit and related Reliance Letter. The Lessor
and the Agent shall have received an Environmental Audit for the
Leased Property showing that no Hazardous Materials are present other
than Hazardous Materials used in the ordinary course of business of
the Lessee and in compliance in all material respects with all
Environmental Laws or which is otherwise satisfactory to the Lessor
and the Agent; and the firm that prepared the Environmental Audit for
the Leased Property shall have delivered to the Lessor and the Agent a
letter (substantially in the form of Exhibit F) stating that the
Lessor, the Agent and the Lenders may rely upon such firm's
Environmental Audit of such Land, it being understood that the
Lessor's and the Agent's acceptance of any such Environmental Audit
shall not release or impair the Lessee's obligations under the
Operative Documents with respect to any environmental liabilities
relating to the Leased Property.
(vi) Officer's Certificate. Each of the Agent and the Lessor
shall have received an Officer's Certificate of the Lessee stating
that, to the best of the officer's knowledge, (A) each and every
representation and warranty of the Lessee 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 or Potential Event of Default has
occurred and is continuing; (C) each Operative Document to which the
Lessee 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 September 30, 1999.
(vii) UCC Financing Statement; Recording Fees; Transfer Taxes.
Each Funding Party shall have received satisfactory evidence of (i)
the execution and delivery to Agent of a UCC-1 and UCC-2 financing
statement to be filed with the Secretary of State of the applicable
7
State (or other appropriate filing office) and the county where the
related Land is located respectively, and such other Uniform
Commercial Code financing statements as any Funding Party deems
necessary or desirable in order to protect such Funding Party's
interests and (ii) the payment of all recording and filing fees and
taxes with respect to any recordings or filings made of the Lease, the
Mortgage and the Assignment of Lease and Rents.
(viii) Opinions. The opinion of Carlton, Fields, Xxxx, Xxxxxxxx,
Xxxxx & Xxxxxx, P.A., local counsel for the Lessee qualified in
Florida, substantially in the form set forth in Exhibit G-2, and
containing such other matters as the parties to whom they are
addressed shall reasonably request, shall have been delivered and
addressed to each of the Lessor, the Agent and the Lender.
(b) Litigation. No action or proceeding shall have been instituted or
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 September 30, 1999.
8
(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.
(f) Cutoff Date. The Closing Date shall occur on or prior to December
31, 1999.
(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.
SECTION 3.2 Additional Conditions for the Closing Date. The obligations of
the Lessor and each Lender to carry out their respective obligations under
Section 2 of this Master Agreement to be performed on the initial 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 initial 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) Operative Guaranty. Counterparts of the Operative Guaranty,
duly executed by the Lessee, shall have been delivered to each Funding
Party.
(ii) Loan Agreement. Counterparts of the Loan Agreement, duly
executed by the Lessor, the Agent and the Lender, shall have been
delivered to each of the parties thereto.
(iii) Master Agreement. Counterparts of this Master Agreement,
duly executed by the parties hereto, 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.
9
(v) Lessee's Resolutions and Incumbency Certificate, etc. Each of
the Agent and the Lessor shall have received (x) a certificate of the
Secretary or an Assistant Secretary of the Lessee, attaching and
certifying as to (i) the Board of Directors' or other authorizing
resolution duly authorizing the execution, delivery and performance by
it of each Operative Document to which it is or will be a party, (ii)
the incumbency and signatures of persons authorized to execute and
deliver such documents on its behalf, (iii) its articles of
incorporation, certified as of a recent date by the Secretary of State
of the state of its incorporation and (iv) its by-laws, and (y) good
standing certificates for the Lessee from the appropriate offices of
the States of such Person's incorporation and principal place of
business.
(vi) Opinions of Counsel. The opinions of Long Xxxxxxxx & Xxxxxx
LLP and of internal counsel to the Lessee, dated the initial Closing
Date, substantially in the form set forth in Exhibit G-1, 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 Lender.
(vii) Lessor's Incumbency Certificate. If a Loan Agreement is
then in effect, the Agent shall have received a certificate of
secretary of the Lessor attaching and certifying as to the incumbency
and signatures of persons authorized to execute and deliver such
documents on its behalf.
SECTION 3.3 Conditions to the Obligations of Lessee. The obligations of the
Lessee to lease from the Lessor are subject to the fulfillment on the related
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 Lender shall have been
satisfied.
(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
10
illegal for the Lessee to participate in any of the transactions contemplated by
the Operative Documents.
SECTION 3.4 Additional Conditions to the Obligations of the Funding Parties
on the Closing Date. The obligations of the Lessor and each Lender to carry out
their respective obligations under Section 2 of this Master Agreement to be
performed on the Closing Date shall be subject to the fulfillment to the
satisfaction of, or waiver by, each such party hereto (acting directly or
through their respective counsel) or prior to the Closing Date of the following
conditions precedent in addition to those set forth in Sections 3.1 and 3.2,
provided that the obligations of any Funding Party shall not be subject to any
conditions contained in this Section 3.4 which are required to be performed by
such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have received from
the Lessee the Funding Request therefor pursuant to Section 2.2(d).
(b) No Filed Mechanics Lien. As of the Closing Date, and as to any
Funded Amount requested for the Leased Property, no mechanic's liens or
materialman's liens have been filed against the Leased Property that have not
been discharged, bonded over in a manner reasonably satisfactory to the Agent or
insured over by the Title Insurance Company.
SECTION 4
REPRESENTATIONS
SECTION 4.1 Representations of Lessee. Effective as of the date of
execution hereof and as of the Closing Date, the Lessee represents and warrants
to each of the other parties hereto as follows:
(a) Corporate Existence and Power. The Lessee is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where the failure to qualify would have a Material Adverse
Effect, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
(b) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Lessee of this Agreement and the
other Operative Documents to
11
which it is a party (i) are within the Lessee's corporate powers, (ii) have been
duly authorized by all necessary corporate action, (iii) require no action by or
in respect of or filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Lessee or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Lessee or any of the Subsidiaries which contravention or
default is reasonably likely to have a Material Adverse Effect, and (v) do not
result in the creation or imposition of any Lien other than the Liens created by
the Operative Documents on any asset of the Lessee or any of the Subsidiaries.
(c) Binding Effect. This Agreement and each other Operative Document
to which the Lessee is a party each constitute a valid and binding agreement of
the Lessee, enforceable in accordance with its terms, provided that the
enforceability hereof and thereof is subject in each case to general principles
of equity and to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally.
(d) Financial Information. (i) The consolidated balance sheet of the
Lessee and its Consolidated Subsidiaries as of December 31, 1998 and the related
consolidated statements of income, shareholders' equity and cash flows for the
Fiscal Year then ended, reported on by Xxxxxx Xxxxxxxx & Co., copies of which
have been delivered to each of the Funding Parties, and the unaudited
consolidated financial statements of the Lessee for the interim period ended
September 30, 1999, copies of which have been delivered to each of the Funding
Parties, fairly present, in conformity with GAAP (except for year-end
adjustments and the absence of footnotes in the case of interim statements), the
consolidated financial position of the Lessee and its Consolidated Subsidiaries
as of such dates and their consolidated results of operations and cash flows for
such periods stated.
(ii) Since September 30, 1999 there has been no event, act,
condition or occurrence having a Material Adverse Effect.
(e) No Litigation. There is no action, suit or proceeding pending
against or affecting the Lessee or any of the Subsidiaries before any court or
arbitrator or any governmental body, agency or official which could reasonably
be expected to have a Material Adverse Effect.
12
(f) Compliance with ERISA. Except as set forth in Schedule 4.1(f) as
the same may be revised from time to time, (i) the Lessee and each member of the
Controlled Group have fulfilled their obligations under the minimum funding
standards of ERISA and the Tax Code with respect to each Plan and are in
compliance in all material respects with the presently applicable provisions of
ERISA and the Tax Code, and have not incurred any liability to the PBGC or a
Plan under Title IV of ERISA; and (ii) neither the Lessee nor any member of the
Controlled Group is or ever has been obligated to any material contribution to
any Multiemployer Plan.
(g) Compliance with Laws; Payment of Taxes. The Lessee and each
Consolidated Subsidiary is in compliance with all applicable laws, regulations
and similar requirements of governmental authorities the failure to comply with
which would result in a Material Adverse Effect, except where such compliance is
being contested in good faith through appropriate proceedings. There have been
filed on behalf of the Lessee and each Consolidated Subsidiary all Federal,
state and local income, excise, property and other material tax returns which
are required to be filed by them (or appropriate extensions of such filings have
been obtained) and all taxes due pursuant to such returns or pursuant to any
assessment received by or on behalf of the Lessee or any Consolidated Subsidiary
(which are not being contested in good faith by such Person) have been paid. The
charges, accruals and reserves on the books of the Lessee and each Consolidated
Subsidiary in respect of taxes or other governmental charges are, in the opinion
of the Lessee adequate. United States federal income tax returns (where
applicable) of the Lessee and each Consolidated Subsidiary have been examined
and closed through the Fiscal Year ended December 31, 1993.
(h) Subsidiaries; Identification of Consolidated Subsidiaries. Each of
the Consolidated Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, is
duly qualified to transact business in every jurisdiction where the failure to
so qualify would have a Material Adverse Effect, and has all corporate powers
and all governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted in each case where the failure to have
the same would have a Material Adverse Effect. As of the initial Closing Date,
the Lessee has no Subsidiaries except for those Subsidiaries listed on Schedule
4.1(h) which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation, and which identifies Consolidated Subsidiaries as
being such. After the initial Closing Date, in the event that
13
Lessee's Subsidiaries are no longer published in the Lessee's annual reports
filed with the Securities and Exchange Commission, Schedule 4.1(h) shall be
supplemented from time to time by the Lessee, with copies to the Funding
Parties, to identify any additional Subsidiary and any Subsidiary which has
become a Consolidated Subsidiary and which has not previously been shown as such
on such annual reports or on Schedule 4.1(h) as previously supplemented.
(i) Investment Company Act. Neither the Lessee nor any Subsidiary is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(j) Public Utility Holding Company Act. Neither the Lessee nor any
Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
(k) Ownership of Property; Liens. The Lessee and each Consolidated
Subsidiary has title to its properties sufficient for the conduct of its
business, and none of such property is subject to any Lien except as permitted
in Section 5.18.
(l) No Default. Neither the Lessee nor any Consolidated Subsidiary is
in default under or with respect to any agreement, instrument or undertaking to
which it is a party or by which it or any of its property is bound which could
reasonably be expected to have or cause a Material Adverse Effect. No Event of
Default or Potential Event of Default has occurred and is continuing.
(m) Full Disclosure. All information heretofore furnished by the
Lessee to any Funding Party (including, without limitation, information
contained in the Lessee's form 10-K annual report for Fiscal Year 1996 and form
10-Q quarterly report for the second Fiscal Quarter of 1997) for purposes of or
in connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Lessee to any Funding Party will
be, true, accurate and complete in every material respect or based on reasonable
estimates on the date as of which such information is stated or certified.
(n) Environmental Matters. (i) Neither the Lessee nor any Consolidated
Subsidiary is subject to any Environmental Liability which could reasonably be
expected to have or cause a
14
Material Adverse Effect and neither the Lessee nor any Consolidated Subsidiary
has been designated as a potentially responsible party under CERCLA or under any
state statute similar to CERCLA where the probable resulting liability would
have a Material Adverse Effect. Except as disclosed on Schedule 4.1(n), as
revised from time to time, to the knowledge of the Lessee, none of the
Properties has been identified on any current or proposed (1) National
Priorities List under 40 C.F.R. Section 300, (2) CERCLIS list or (3) any list
arising from a state statute similar to CERCLA, in each case under circumstances
which have or could reasonably be expected to have a Material Adverse Effect.
(ii) Except as disclosed on Schedule 4.1(n), as revised from time
to time, to the knowledge of the Lessee, no Hazardous Materials have been or are
being used, produced, manufactured, processed, treated, recycled, generated,
stored, disposed of, managed or otherwise handled at, or shipped or transported
to or from the Properties or are otherwise present at, on, in or under the
Properties, except for Hazardous Materials, such as cleaning solvents,
pesticides and other materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed of, managed, or otherwise handled in
minimal amounts in the ordinary course of business in compliance with all
applicable Environmental Requirements, except in such instances where such
failure of compliance would not have a Material Adverse Effect.
(iii) Except as disclosed on Schedule 4.1(n), as revised from
time to time, the Lessee, and each of the Subsidiaries has procured all
Environmental Authorizations necessary for the conduct of its business, and is
in compliance with all Environmental Requirements in connection with the
operation of the Properties and the Lessee's and each Consolidated Subsidiary's
respective businesses, except in such instances where such failure of compliance
would not have a Material Adverse Effect.
(o) Capital Stock. All Capital Stock, debentures, bonds, notes and all
other securities of the Lessee and each Consolidated Subsidiary presently issued
and outstanding are validly and properly issued in accordance with all
applicable laws, including but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws. Except as set forth in
Schedule 4.1(o), as revised from time to time, the issued shares of Capital
Stock of the Lessee's Wholly Owned Subsidiaries which are owned by the Lessee
are owned by the Lessee free and clear of any Lien or adverse claim and at least
a
15
majority of the issued shares of capital stock of each of the Lessee's other
Subsidiaries (other than Wholly Owned Subsidiaries) is owned by the Lessee free
and clear of any Lien or adverse claim.
(p) Margin Stock. Neither the Lessee nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any
Funded Amount will be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation U or Regulation X.
(q) Insolvency. After giving effect to the execution and delivery of
the Operative Documents and the funding of the Funded Amounts under the
Operative Agreement: (i) the Lessee will not (x) be "insolvent," within the
meaning of such term as used in O.C.G.A. Section 18-2-22 or as defined in
Section 101 of the "Bankruptcy Code", or Section 2 of either the "UFTA" or the
"UFCA", or as defined or used in any "Other Applicable Law" (as those terms are
defined below), or (y) be unable to pay its debts generally as such debts become
due within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the
UFTA or Section 6 of the UFCA, or (z) have an unreasonably small capital to
engage in any business or transaction, whether current or contemplated, within
the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or
Section 5 of the UFCA; and (ii) the obligations of the Lessee under the
Operative Documents will not be rendered avoidable under any Other Applicable
Law. For purposes of this Section 4(q), "Bankruptcy Code" means Title 11 of the
United States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA"
means the Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means
any other applicable state law pertaining to fraudulent transfers or acts
voidable by creditors, in each case as such law may be amended from time to
time.
(r) Insurance. The Lessee and each Consolidated Subsidiary has (either
in the name of the Lessee or in such Consolidated Subsidiary's own name), with
financially sound and reputable insurance companies, insurance on all its
property in comparable amounts and against comparable risks as are usually
insured against in the same general area by companies of established repute
engaged in the same or similar business.
(s) 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 or the
Existing Lease
16
(t) Hazardous Materials. (i) To the best knowledge of the Lessee, on
the Closing Date, except as disclosed in the Environmental Audit, there are no
Hazardous Materials present at, upon, under or within the Leased Property or
released or transported to or from the Leased Property (except in compliance in
all material respects with all applicable Environmental Laws).
(ii) On the Closing Date, no Governmental Actions have been taken
or are in process or have been threatened, which could reasonably be expected to
subject the Leased Property, any Lender or the Lessor with respect to the Leased
Property to any Claims or Liens under any Environmental Law which would have a
materially adverse effect on the Lessee, the Lessor, any Lender or the Leased
Property.
(iii) The Lessee has, or will obtain on or before the date
required by applicable Environmental Laws, all Environmental Permits necessary
to operate the Leased Property in accordance with applicable 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) 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
Environmental 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. 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, to
its best knowledge, threatened by any Environmental 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.
(v) Except as disclosed in the Environmental Audit, the Leased
Property and each portion thereof are presently in compliance in all material
respects with all Environmental Laws, and there are no present or, to the
Lessee's best
17
knowledge, 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
restrictions on ownership, occupancy, use or transferability under any
applicable 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 interfere with the continued
operation and maintenance of the Leased Property as contemplated by the
Operative Documents.
(vi) Notwithstanding any provision herein or in the Lease to the
contrary, Lessor and Agent agree that it is not, and will not constitute, a
violation of any representation, warranty or covenant of the Lessee made in this
Agreement, the Lease or any other Operative Document, if Hazardous Materials
shall be present or handled, generated, stored, processed or disposed of on, or
released or discharged from, the Leased Property, to the extent such Hazardous
Materials are used by or on behalf of Lessee in the ordinary course of Lessee's
business and in material compliance with all Environmental Laws.
(u) Leased Property. The present condition and use of the Leased
Property conforms in all material respects with all conditions or requirements
of all existing permits and approvals issued with respect to the Leased
Property, and the present use of 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. No material notices, complaints or orders
of violation or non-compliance have been issued or, to the Lessee's best
knowledge, threatened or contemplated by any Governmental Authority with respect
to the Leased Property or any present or intended future use thereof. All
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 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
in full force and effect, and the Lessee has no knowledge of any pending
modification or cancellation of any
18
of the same. The Lessee does not make any representation hereby with respect to
compliance with the Tripartite Agreement/Option Agreement.
SECTION 4.2 Representations of the Lessor. Effective as of the date of
execution hereof and as of the Closing Date, the Lessor represents and warrants
to the Agent, the Lender and the Lessee as follows:
(a) Securities Act. The interest being acquired or to be acquired by
the Lessor in the 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) Employee Benefit Plans. The Lessor is not and will not be making
its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Tax Code.
(c) Brokers, Finders. The Lessor has not retained or employed any
broker, finder or financial adviser in connection with this Master Agreement as
to which any fees or commissions described in Section 7.1(f) have been incurred.
(d) Due Organization, etc. The Lessor is a limited partnership duly
organized and validly existing in good standing under the laws of Connecticut
and qualified as a foreign partnership in good standing under the laws of
Florida 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.
(e) 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.
19
(f) 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 and do
not and will not contravene any provision of, or constitute a default under, any
Contractual Obligation of Lessor, and the Lessor possesses all requisite
regulatory authority to undertake and perform its obligations under the
Operative Documents.
(g) 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 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.
(h) 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).
(i) Partners. The general partner of the Lessor is AFT Prefco GP, LLC
and the limited partner of the Lessor is AFG Prefco, LLC.
SECTION 4.3 Representations of each Lender. As of the Closing Date,
the 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
the 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 the
Lender shall be entitled to assign, convey or transfer its interest in
accordance with Section 6.2. The Lender is an accredited investor as that term
is defined in Rule 501(a) under the Securities Act.
20
(b) Employee Benefit Plans. The Lender is not and will not be making
its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Tax Code.
(c) Brokers, Finders. The Lender has not retained or employed any
broker, finder or financial adviser in connection with this Master Agreement as
to which any fees or commissions described in Section 7.1(f) have been incurred.
SECTION 5
COVENANTS OF THE LESSEE
So long as any Commitment remains in effect hereunder or any Funded
Amount shall remain outstanding, the Lessee will (unless waived in writing by
the Required Funding Parties) perform the following covenants (it being
understood and agreed that Sections 5.19 and 5.20 and any related defined terms
used therein shall be deemed to be amended automatically from time to time in a
manner corresponding to any amendment effected from time to time to the
corresponding provisions and defined terms in the Credit Agreement, provided
that SunTrust Bank, Atlanta has, in its capacity as a lender under the Credit
Agreement, consented to such amendment):
SECTION 5.1 Information. The Lessee will deliver to each of the Funding
Parties:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year, a consolidated balance sheet of the Lessee and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, shareholders' equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by Xxxxxx Xxxxxxxx & Co. or other
independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to the
Required Funding Parties;
(b) as soon as available and in any event within 60 days after the end
of each of the first 3 Fiscal Quarters of each Fiscal Year, a consolidated
balance sheet of the Lessee and its Consolidated Subsidiaries as of the end of
such Fiscal Quarter and the related statement of income and statement of cash
flows
21
for such Fiscal Quarter and for the portion of the Fiscal Year ended at the end
of such Fiscal Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the corresponding portion of
the previous Fiscal Year, all certified (subject to normal year-end adjustments)
as to fairness of presentation, GAAP and consistency by an Authorized Officer or
the chief accounting officer of the Lessee;
(c) within 10 Domestic Business Days after the delivery of each set of
financial statements referred to in paragraph (a) above and simultaneously with
the delivery of each set of financial statements referred to in paragraph (b)
above, a certificate, substantially in the form of Exhibit E (a "Compliance
Certificate"), of an Authorized Officer or the chief accounting officer of the
Lessee (i) setting forth in reasonable detail the calculations required to
establish whether the Lessee was in compliance with the requirements of Sections
5.15 through 5.20, inclusive, on the date of such financial statements and (ii)
stating whether any Event of Default or Potential Event of Default exists on the
date of such certificate and, if any Event of Default or Potential Event of
Default then exists, setting forth the details thereof and the action which the
Lessee is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in paragraph (a) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that nothing has come to their attention to cause them to believe that any Event
of Default or Potential Event of Default existed on the date of such financial
statements;
(e) within 5 Domestic Business Days after a Principal Officer becomes
aware of the occurrence of any Event of Default or Potential Event of Default, a
certificate of an Authorized Officer or the chief accounting officer of the
Lessee setting forth the details thereof and the action which the Lessee is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Lessee generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and
22
annual, quarterly or monthly reports which the Lessee shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which could reasonably be
expected to constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice, provided, however, that each of the foregoing notices shall not be
required to be given unless the reportable event, withdrawal liability, plan
termination, or trustee appointment involved could reasonably be expected to
give rise to a liability of more than $1,000,000 on the part of the Lessee or
any of its Subsidiaries; and
(i) from time to time such additional information regarding the
financial position or business of the Lessee and the Subsidiaries as the Agent,
at the request of any Funding Party, may reasonably request.
SECTION 5.2 Inspection of Property, Books and Records.
(a) The Lessee will keep, and will cause each Consolidated Subsidiary
to keep, proper books of record and account in which full, true and correct
entries in conformity with GAAP shall be made of all dealings and transactions
in relation to its business and activities.
(b) Prior to the occurrence of an Event of Default or a Potential
Event of Default, the Lessee will, and the Lessee will cause each Consolidated
Subsidiary to, permit representatives of any Funding Party at such Funding
Party's expense after reasonable notice during regular business hours (which
date of visit shall be mutually agreed upon but shall not be later than 2 weeks
after the date requested by such Funding Party) to visit and inspect, in the
company of any of the Principal Officers or their designees and their
independent public accountants, any of their respective properties, and to
examine and make abstracts from any of their respective books and records and to
discuss with any of the Principal Officers the
23
respective affairs, finances and accounts of the Lessee and its Subsidiaries.
(c) After the occurrence of an Event of Default or a Potential Event
of Default, the Lessee will permit, and the Lessee will cause each Consolidated
Subsidiary to permit, at the Lessee's expense, representatives of any Funding
Party to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants.
The Lessee agrees to cooperate and assist in such visits and
inspections set forth in paragraphs (b) and (c) above in this Section, in each
case at such reasonable times and as often as may reasonably be desired.
Provided, however, (i) in no event shall any Funding Party have access to (1)
information prohibited by law or (2) Restricted Information, (ii) Lessee may
designate an employee to accompany any Funding Party, and (iii) in the event any
Funding Party desires to inspect confidential matters (which matters shall in no
event include financial information and data of the Lessee or its Subsidiaries
or other information the Funding Parties may require in order to determine
compliance with this Agreement) under this Section, such Funding Party shall
execute a confidentiality agreement relating to such matters, which agreement
shall contain reasonable terms acceptable to such Funding Party and its counsel.
SECTION 5.3 Maintenance of Existence. The Lessee shall and shall cause each
Consolidated Subsidiary to, maintain its corporate existence (except for any
corporate reorganization, dissolutions or liquidations expressly permitted by
Section 5.4 or 5.5 hereof) and to carry on its business in substantially the
same manner and in substantially the same field as such business is now carried
on and maintained.
SECTION 5.4 Dissolution. Neither the Lessee nor any Consolidated
Subsidiaries shall (a) suffer or permit dissolution or liquidation either in
whole or in part, or (b) redeem or retire any shares of its own stock or that of
any Consolidated Subsidiary, except (i) through corporate reorganization to the
extent permitted by Section 5.5, or (ii) solely in accordance with its policies
and programs approved by the Lessee's Board of Directors from time to time, but
in no event during the existence of an uncured Event of Default, whether caused
by such dissolution, liquidation or otherwise.
24
SECTION 5.5 Consolidations, Mergers and Sales of Assets. The Lessee will
not, and the Lessee will not permit any Consolidated Subsidiary to, consolidate
or merge with or into, or sell, lease or otherwise transfer all or any
substantial part of its assets to, any other Person, or discontinue or eliminate
any Subsidiary or division, provided that (a) the Lessee and any Consolidated
Subsidiary may merge with another Person (provided that in the event of such
merger involving the Lessee, the Lessee is the surviving Person) if (i) such
Person was organized under the laws of the United States of America or one of
its states, (ii) the Lessee or a Consolidated Subsidiary is the corporation
surviving such merger and (iii) immediately after giving effect to such merger,
no Event of Default or Potential Event of Default shall have occurred and be
continuing, (b) Subsidiaries may merge with one another or with the Lessee or
with any other Person which will become a Subsidiary as a result of such merger,
and (c) the foregoing limitation on the sale, lease or other transfer of assets
and on the discontinuation or elimination of a Subsidiary or division shall not
prohibit, (i) during any Fiscal Quarter, a transfer of assets or the
discontinuance or elimination of a Subsidiary or division (in a single
transaction or in a series of related transactions) unless the aggregate assets
to be so transferred or utilized in a Subsidiary or division to be so
discontinued, when combined with all other assets transferred, and all other
assets utilized in all other Subsidiaries or divisions discontinued, in any
Fiscal Year contributed more than 17.5% of Consolidated Operating Profits for
the immediately preceding Fiscal Year, or (ii) sales of accounts receivable in
connection with an accounts receivable securitization program in which the
aggregate principal amount invested by the purchaser of such receivables does
not exceed $150,000,000 at any one time.
SECTION 5.6 [Intentionally Left Blank]
SECTION 5.7 Compliance with Laws; Payment of Taxes. The Lessee will, and
will cause each of the Subsidiaries and each member of the Controlled Group to,
comply with applicable laws (including but not limited to ERISA), regulations
and similar requirements of governmental authorities (including but not limited
to PBGC), except (i) where the necessity of such compliance is being contested
in good faith through appropriate proceedings, or (ii) where the failure to do
so would not have a Material Adverse Effect. The Lessee will, and will cause
each of the Subsidiaries to, pay prior to the time the same become delinquent
all taxes, assessments, governmental charges, claims
25
for labor, supplies, rent and other obligations which, if unpaid, might become a
lien against the property of the Lessee or any Consolidated Subsidiary, except
(i) liabilities being contested in good faith and against which, if requested by
the Agent, the Lessee will set up reserves in accordance with GAAP, or (ii)
where the failure to do so would not have a Material Adverse Effect.
SECTION 5.8 Insurance. The Lessee will maintain, and the Lessee will cause
each of the Subsidiaries to maintain (either in the name of the Lessee or in
such Consolidated Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its property material to its business in
comparable amounts and against such risks as are usually insured against in the
same general area by companies of established repute engaged in the same or
similar business.
SECTION 5.9 Change in Fiscal Year. The Lessee will not change its Fiscal
Year without the consent of the Required Funding Parties.
SECTION 5.10 Maintenance of Property. The Lessee shall, and the Lessee
shall cause each Consolidated Subsidiary to, maintain all of its properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted, except where the failure to do so would not have a Material Adverse
Effect.
SECTION 5.11 Environmental Notices. Upon becoming aware of such matters,
the Lessee shall furnish to the Funding Parties and the Agent prompt written
notice of all Environmental Liabilities, pending or anticipated Environmental
Proceedings, Environmental Notices, Environmental Judgments and Orders, and
Environmental Releases at, on, in, under or in any way affecting the Properties
or any adjacent property, and all facts, events, or conditions that could lead
to any of the foregoing, in each case if the same would have a Material Adverse
Effect.
SECTION 5.12 Environmental Matters. Except as set forth in Schedule 5.12,
as revised from time to time, neither the Lessee nor any Consolidated Subsidiary
will, and the Lessee will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Properties any Hazardous
Materials, except for Hazardous Materials such as cleaning solvents, pesticides
and other similar materials used, produced, manufactured, processed, treated,
recycled, generated,
26
stored, disposed, managed, or otherwise handled in minimal amounts in the
ordinary course of business in compliance with all applicable Environmental
Requirements in each case where the failure to comply would not have a Material
Adverse Effect.
SECTION 5.13 Environmental Release. The Lessee agrees that upon the
occurrence of an Environmental Release at or on any of the Properties owned by
it or any Consolidated Subsidiary, it will take appropriate action required by
applicable law, except in such cases where the failure to take such action would
not have a Material Adverse Effect.
SECTION 5.14 Heavy Metals. Historic soil and groundwater sampling, as well
as recent sampling by Allied Environmental, has disclosed the presence of heavy
metals and other constituents in the groundwater at the property, including
thallium, lead, arsenic, gross alpha and antimony. Lessee covenants and agrees
to work with Florida DEP, and to promptly conduct such sampling, remediation
and/or other actions required to obtain a letter from Florida DEP indicating
that no further action is required with regard to the discovered constituents,
in a form reasonably satisfactory to Agent and Lessor, all at no cost to Agent,
Lessor or the Lenders. These provisions will be in addition to, and not in
limitation of, any other rights of Agent, the Lenders or Lessor.
SECTION 5.15 Storage Tanks, Allied Environmental has discovered petroleum
related contamination in the vicinity of an above-ground storage tank on the
Leased Property. Lessee covenants to promptly notify the appropriate agency and
promptly conduct such investigation and remediation at no cost to Agent, the
Lenders or Lessor. Remediation will be complete upon receipt by Agent of a
letter from the environmental agency with jurisdiction indicating that no
further investigation remediation, or other action is necessary with regard to
such contamination, in a form reasonably satisfactory to Agent. This provision
shall be in addition to, and not in limitation of, any other rights of Agent,
the Lenders or Lessor.
SECTION 5.16 Transactions with Affiliates. Neither the Lessee nor any of
its Consolidated Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of the Lessee or such Subsidiary (which Affiliate
is not the Lessee or a Wholly Owned Subsidiary), except as permitted by law and
in the ordinary course of business and pursuant to reasonable terms which are no
less favorable to the Lessee or such Subsidiary than
27
would be obtained in a comparable arm's length transaction with a Person which
is not an Affiliate.
SECTION 5.17 Restricted Investments. The Lessee will not, and will not
permit any of its Subsidiaries to, make any Restricted Investments unless, after
giving effect thereto, the aggregate amount of all such Restricted Investments
outstanding at any time does not exceed 20% of the Lessee's Consolidated Total
Assets; provided that (i) the foregoing shall be tested as at the end of each
Fiscal Quarter, and (ii) after giving effect to the making of any Restricted
Investments permitted by this Section, the Lessee will be in full compliance
with all the provisions of the Operative Documents.
SECTION 5.18 Assignment of Lease and Rents. The Lessee shall execute and
deliver a consent to Assignment of Lease and Rents with respect to the Leased
Property existing if and when the Loan Agreement is entered into.
SECTION 5.19 Debt of Consolidated Subsidiaries. The Lessee shall not permit
any Consolidated Subsidiary to incur or permit to exist any Debt not in
existence on the Initial Closing Date, and extensions or renewals thereof, other
than (i) the obligations to the Funding Parties under this Agreement; (ii) Debt
of the types described in clause (vii) of the definition of Debt which is
incurred in the ordinary course of business in connection with (1) the sale or
purchase of goods, or (2) to assure performance of any Subsidiaries' service
contracts, operating leases, obligations to a utility or a governmental entity,
or worker's compensation obligations; (iii) Debt (including Debt secured by
Liens permitted by Section 5.18) not exceeding an aggregate amount outstanding
at any time equal to 20% of Consolidated Net Tangible Assets; and (iv) the
obligations to the banks under the Credit Agreement or any refinancing thereof.
Any corporation which becomes a Consolidated Subsidiary after the date
hereof shall for all purposes of this Section be deemed to have created, assumed
or incurred at the time it becomes a Consolidated Subsidiary all Debt of such
corporation existing immediately after it becomes a Consolidated Subsidiary.
SECTION 5.20 Negative Pledge. The Lessee shall not, and the Lessee shall
not permit any Consolidated Subsidiary to, create, assume or suffer to exist any
Lien on any asset now owned or hereafter acquired by it, except:
28
(a) Liens existing on the date of this Agreement and disclosed on
Schedule 5.18(a);
(b) any Lien existing on any specific fixed asset of any corporation
at the time such corporation becomes a Consolidated Subsidiary and not created
in contemplation of such event;
(c) any Lien on any specific fixed asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that (i) such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion of
construction thereof, and (ii) such acquisition is not in connection with the
purchase of all or substantially all of the assets of a Person;
(d) any Lien on any specific fixed asset of any corporation existing
at the time such corporation is merged or consolidated with or into the Lessee
or a Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any specific fixed asset prior to the
acquisition thereof by the Lessee or a Consolidated Subsidiary and not created
in contemplation of such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the Lessee or
another Wholly Owned Subsidiary;
(g) Liens on and transfers of accounts receivable in connection with
an accounts receivable securitization program in which the aggregate principal
amount invested by the purchaser of such receivables does not exceed
$150,000,000 at any one time;
(h) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
paragraphs of this Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt secured by any such Lien is
not increased;
(i) any Lien on Margin Stock (subject to the limitation of Debt
secured thereby set forth in Section 5.18(p) below);
(j) subject to Article XII(n) of the Lease, Liens for taxes (including
ad valorem taxes), assessments or other
29
governmental charges or levies not yet due or which are being actively contested
in good faith by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the Lessee or Subsidiary, as the case may
be, in accordance with GAAP;
(k) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Lessee or such Subsidiary, as the case may be, in
accordance with GAAP;
(l) Liens incurred or deposits made in the ordinary course of business
in connection with worker's compensation, unemployment insurance and other types
of social security benefits or obligations or to secure performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations,
provided that such Liens were not incurred in connection with the incurrence of
any Debt;
(m) zoning ordinances, easements, licenses, restrictions on the use of
real property and minor irregularities in title thereto which do not materially
impair the use of such property and the operation of the business of the Lessee
or such Subsidiary (as the case may be) thereon or the value of such property;
(n) inchoate Liens arising under ERISA to secure current service
pension liabilities as they are incurred under the provisions of Plans from time
to time in effect;
(o) rights reserved to or invested in any municipality or
governmental, statutory or public authority to control or regulate any property
of the Lessee or such Subsidiary, as the case may be, or to use such property in
a manner which does not materially impair the use of such property for the
purposes of which it is held by the Lessee or such Subsidiary, as the case may
be; and
(p) Liens not otherwise permitted by the foregoing paragraphs of this
Section securing Debt (other than indebtedness in respect of Funded Amounts) in
an aggregate principal amount at any time outstanding which does not exceed 20%
of Consolidated Net Tangible Assets.
30
SECTION 5.21 Interest Coverage Ratio. At the end of each Fiscal Quarter
commencing with the Fiscal Quarter ending September 30, 1997, the Interest
Coverage Ratio shall be greater than or equal to 3.0 to 1.0, determined in
accordance with GAAP.
SECTION 5.22 Ratio of Consolidated Funded Debt to Cash Flow. At the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending September 30,
1997, the ratio of Consolidated Funded Debt to Cash Flow for the Fiscal Quarter
just ended and the immediately preceding 3 Fiscal Quarters shall not exceed 4.0
to 1.0, determined in accordance with GAAP.
SECTION 5.23 Appraisal. The Lessee shall pay when requested by the Agent
the cost of a report of the Appraiser (an "Appraisal"), which report is being
obtained by the Agent.
SECTION 5.24 Insurance. No later than January 30, 2000 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 insured or loss
payee with respect to such insurance), in form and substance reasonably
satisfactory to the Lessor and the Agent.
SECTION 5.25 Stamp Tax. If Florida documentary stamp tax is not paid on
recordation of the Lease, the Lessee will promptly seek a Technical Assistance
Advisory ("TAA") from the Florida Department of Revenue. If the TAA holds that
such tax is due on the Lease, the Lessee will promptly pay the tax.
31
SECTION 6
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 (except pursuant to Article V of the Lease) or any of
the Operative Documents (i) to any Lessee Competitor or (ii) to any other Person
without the prior written consent of the Lenders and the Lessee, which consent
(in the case of clause (ii)) shall not be unreasonably withheld, provided that
the Lessor may make any such assignment, conveyance or transfer to any other
Funding Party or any Affiliate of any Funding Party, without such consent, and
provided further that no such assignment, conveyance or transfer shall separate
ownership of an estate for years and remainder interest or violate the
TriPartite Agreement/Option Agreement, and provided further that if such
assignee is not a United States citizen or resident (or the assignee is filing
as a foreign corporation, partnership, estate or trust), such assignee shall
deliver to the Agent and the Lessee Internal Revenue Service form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service. Any proposed transferee of the Lessor shall make the representation set
forth in Section 4.2(b) to the other parties hereto.
SECTION 6.2 Loan Agreement; Lender Transfers. No Lender may grant
participations in its Commitment or sell Funded Amounts or participations in its
Funded Amount and Commitment (i) to any Lessee Competitor or (ii) to any other
Person (other than an Affiliate) without the prior written consent of the
Lessee, which consent (in the case of clause (ii)) shall not be unreasonably
withheld. Any approved participation buyer shall not receive voting or waiver
rights except with respect to postponing maturities, decreasing interest rates,
releasing all or substantially all of the collateral or increasing principal
amounts. Assignments will be permitted only with the prior written consent of
the Lessee and the Agent, which consent (other than in the case of a Lessee
Competitor) shall not be unreasonably withheld, obtained at least 14 days prior
to any proposed assignment, and the payment of a processing fee of $2,500 by the
assignor or assignee Lender (as agreed between such Persons) to the Agent. Any
such assignment shall be to an Eligible Assignee who is not a Lessee Competitor,
shall be of an amount not less than $5,000,000, and if the assignee is not a
United States citizen or resident (or the assignee is filing as a foreign
corporation, partnership, estate or trust), the assignee shall deliver to the
Agent, the Lessor and the Lessee Internal
32
Revenue Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service. Assignments shall be evidenced by an
assignment and assumption agreement in substantially the form set forth as
Exhibit J.
SECTION 6.3 Lessee Competitors. "Lessee Competitor" means (i) each Person
whose name appears on the most recently revised Competitor List which has been
sent to Lessor and the Lenders prior to the commencement by Lessor or a Lender,
as the case may be, of negotiations for any transfer under this Section 6 to
such Person and (ii) all Affiliates of such Person. Attached hereto as Schedule
6 is the current list (the "Competitor List") of Lessee Competitors. Lessee
shall have the right to update the Competitor List no more often than once every
six months during the Lease Term. In updating the Competitor List, Lessee may
add thereto any Person (an "Added Competitor") that at the time of such updating
is engaged, directly or indirectly, within any of the fifty (50) states of the
Xxxxxx Xxxxxx, Xxxxxxxx xx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxx or the United Kingdom,
in a business in which Lessee or any of its Affiliates is then engaged, provided
that Lessee shall then delete one competitor from the Competitor List for each
competitor so added so that the Competitor List shall never contain more than
nineteen (19) Lessee Competitors. Notwithstanding anything to the contrary
stated herein, in no event shall any bank, insurance company, pension fund, real
estate investment trust, finance company or other institutional lender (an
"Institutional Lender") or investor be a Lessee Competitor or included in any
Competitor List.
SECTION 6.4 Lessor's Covenants. The Lessor covenants and agrees that,
unless the Agent and the Lender shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement;
(b) it shall not incur any indebtedness or other monetary obligation
or liability, other than operating expenses incurred in the ordinary course of
business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used
by the Lessor solely to pay costs of acquisition of the Leased Property and to
pay the Lessee for certain closing and transaction costs associated therewith.
No portion of the proceeds of the Loans will be used by the Lessor (i) in
connection with, whether directly or indirectly, any tender offer for, or other
acquisition of, stock of any
33
corporation with a view towards obtaining control of such other corporation,
(ii) directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any
Person, except for the Transactions;
(e) it will permit the Agent, the Lenders 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 or suffer or permit any Lien against the
Leased Property, other than as expressly contemplated pursuant to the Operative
Documents;
(g) it shall not consent to or suffer or permit the creation of any
easement or other restriction against the Leased Property other than as
permitted pursuant to Article V of the Lease; and
(h) it shall not hereafter violate or cause a violation of the terms
and provisions of the Tripartite Agreement/Option Agreement without the consent
of the Lessee.
SECTION 6.5 Existing Property Documents. (a) The parties hereto acknowledge
that the Lessee may terminate the Existing Lease.
(b) If Equifax Payment Services, Inc. exercises its option to purchase
the Leased Property pursuant to the Existing Lease, the Lessor, Agent, other
Lenders and the Lessee shall cooperate to facilitate the transaction and enter
into such modifications to the Operative Documents as may be necessary so that
the Lease and the other Operative Documents remain in effect, Equifax Payment
Services, Inc. shall pay to Honeywell the amount due pursuant to the Existing
Lease and shall pay actual, out-of-pocket legal expenses of the Lessor, Agent
and Other Lenders, but no other fees or charges, and there shall be no actual
transfer of the Leased Property.
(c) If Equifax Payment Services, Inc. validly exercises its purchase
option under the Honeywell Lease, then the
34
Lessor shall sell the Lease Property to Honeywell for the purchase price
provided under the Honeywell Lease, the Agent shall release its lien on the
Leased Property, and the Lessee shall pay to the Funding Parties any excess of
the Lease Balance over the amount received by the Lessor from Honeywell.
SECTION 7
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 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 because of action or omission by such Indemnitee or
otherwise), 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, 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, any Building or any part thereof or interest therein;
(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 (or
incurring of any liability to refund or pay over any amount as a result of
any Lien) thereon, including, without limitation: (1) Claims or penalties
arising from any violation or alleged violation of law or in tort (strict
liability or otherwise), (2) latent or other defects, whether or not
discoverable, (3) any Claim based upon a violation or alleged violation of
the terms of any
35
restriction, easement, condition or covenant or other matter affecting
title to the Leased Property or the part thereof, (4) 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,
(5) any Claim for patent, trademark or copyright infringement, (6) 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, (7) Claims for
personal injury or real or personal property damage occurring, or allegedly
occurring, on the Land, Building or Leased Property and (8) any Claim in
respect of the Tripartite Agreement/Option Agreement other than Claims
resulting from actions of the Lessor after the Closing Date taken without
the consent of the Lessee;
(d) the offer, issuance, sale or delivery of the Notes by the Lessee;
(e) 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;
(f) 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;
(g) the existence of any Lien on or with respect to the Leased
Property, 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 Lessor or the Lessee, or any of their respective
contractors or agents or by reason of the financing of any personalty or
equipment purchased or leased by the Lessor or the Lessee or Alterations
constructed by the Lessor or the Lessee, except in all cases the Liens
listed as items (a) and (b) in the definition of Permitted Liens;
36
(h) 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 Tax Code;
(i) any act or omission by the Lessee under any Operative Document,
and any breach of any requirement, condition, restriction or limitation in
any Deed; or
(j) any activities or liabilities of the Lessor that were conducted or
incurred prior to the Closing Date;
provided, however, that the Lessee shall not be required to indemnify any
Indemnitee under this Section 7.1 for any of the following: (1) any Claim to the
extent that such Claim results from the willful misconduct (not taken at the
request of the Lessee), willful misrepresentation or gross negligence of such
Indemnitee, or (2) any Claim resulting from Lessor Liens which the Lessor
Indemnitee Group is responsible for discharging under the Operative Documents.
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, the Lessee agrees to indemnify, hold harmless and defend each
Indemnitee 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
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
37
(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 applicable 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 applicable 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 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;
38
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,
(y) during any period after and during the continuance of any Event of
Default or
(z) during any period of up to three years following the date an
Indemnitee takes possession of the Leased Property and during which such
Indemnitee retains such possession;
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
(1) the willful misconduct or gross negligence of such Indemnitee or (2)
Hazardous Materials which are initially placed on, in or under the Leased
Property by a Person other than the Lessee or any Affiliate thereof or any
sublessee or assignee of Lessee after the date the Lessee has surrendered
possession of the Leased Property and such Indemnitee, or any nominee of such
Indemnitee or third-party purchaser of the Leased Property takes possession of
the Leased Property. 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 such Indemnitee to
substantiate properly the requested payment. In case any action, suit or
proceeding shall be brought against any Indemnitee, such Indemnitee shall notify
the Lessee of the commencement thereof, 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
39
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, the Lessee 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 Lien) 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 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 on or prior to the date that is 15 days prior to the date
that an answer or response is required, the Indemnitee may undertake such
defense, at the Lessee's expense. The Lessee shall not 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
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
40
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 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 Tax Indemnitee harmless from and
against, any and all fees (including, without limitation, documentation,
recording, license and registration fees), taxes (including, without limitation,
income, gross receipts, sales, rental, use, turnover, value-added, property,
excise and stamp taxes), levies, imposts, duties, charges, assessments or
withholdings of any
41
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 Tax 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 partnership
interests in the Lessor, the Leased Property or any portion thereof or the Land,
or any sublessee or user thereof, by the United States or by any state or local
government or other taxing authority in the United States in connection with or
in any way relating to (i) the acquisition, financing, mortgaging, construction,
preparation, installation, inspection, delivery, non-delivery, acceptance,
rejection, purchase, ownership, possession, rental, lease, sublease,
maintenance, repair, storage, transfer of title, redelivery, use, operation,
condition, sale, return or other application or disposition of all or any part
of the Leased Property or the partnership interests in the Lessor or the
imposition of any Lien (or incurrence of any liability to refund or pay over any
amount as a result of any Lien) thereon, (ii) Basic Rent or Supplemental Rent or
the receipts or earnings arising from or received with respect to the Leased
Property or any part thereof, or any interest therein or any applications or
dispositions thereof, (iii) any other amount paid or payable pursuant to the
Notes, or any other Operative Documents, (iv) the Leased Property, the Land or
any part thereof or any interest therein (including, without limitation, all
assessments payable in respect thereof, including, without limitation, all
assessments noted on the related Title Policy), (v) all or any of the Operative
Documents, any other documents contemplated thereby, any amendments and
supplements thereto, and (vi) otherwise with respect to or in connection with
the transactions contemplated by the Operative Documents.
(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 and the Lender (including, without limitation, minimum
Taxes, capital gains Taxes, Taxes on or measured by items of tax preference
or alternative minimum Taxes) other than (A) any such Taxes that are, or
are in the nature of, sales, use, license, rental or property Taxes, (B)
withholding Taxes imposed by
42
the United States or any state in which Leased Property is located (i) on
payments with respect to the Notes, to the extent imposed by reason of a
change in Applicable Law occurring after the 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 and (C)
Taxes relating to activities of the Lessor prior to the Closing Date;
(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 (A) any
increase in such Taxes imposed on such Tax Indemnitee by any state in which
the Leased Property is located, net of any decrease in such taxes realized
by such Tax Indemnitee, to the extent that such tax increase would not have
occurred if on the Closing Date the Lessor and the Lender had advanced
funds to the Lessee in the form of loans secured by the Leased Property in
an amount equal to the Funded Amounts funded on such Funding Date, with
debt service for such loans equal to the Basic Rent payable on each Payment
Date and a principal balance at the maturity of such loans in a total
amount equal to the Funded Amounts at the end of the Lease Term, or (B) any
Taxes that are or are in the nature of sales, use, rental, license or
property Taxes;
(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 earliest of (A)
the expiration of the Lease Term 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 earliest of such
times or are imposed on or with respect to any payments due under the
Operative Documents after such expiration or discharge;
43
(v) Taxes imposed on a Tax Indemnitee that result from any
voluntary sale, assignment, transfer or other disposition by such Tax
Indemnitee or any related Tax Indemnitee of any interest in the Leased
Property or any part thereof, or any interest therein or any interest or
obligation arising under the Operative Documents, or from any sale,
assignment, transfer or other disposition of any interest in such Tax
Indemnitee or any related Tax Indemnitee, it being understood that each of
the following shall not be considered a voluntary sale: (A) any
substitution, replacement or removal of any of the property by the Lessee,
(B) any sale or transfer resulting from the exercise by the Lessee of any
termination option, any purchase option or sale option, (C) any sale or
transfer while an Event of Default shall have occurred and be continuing
under the Lease, and (D) any sale or transfer resulting from the Lessor's
exercise of remedies under the Lease;
(vi) any Tax which is being contested in accordance with the
provisions of Section 7.4(c), during the pendency of such contest;
(vii) any Tax that is imposed on a Tax Indemnitee as a result of
such Tax Indemnitee's gross negligence or willful misconduct (other than
gross negligence or willful misconduct imputed to such Tax Indemnitee
solely by reason of its interest in the Leased Property);
(viii) any Tax to the extent resulting from a Tax Indemnitee
engaging after the Closing Date, with respect to the Leased Property or the
partnership interests in the Lessor, 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 that it is required to file in a proper and timely manner, unless
such failure (A) results from the transactions contemplated by the
Operative Documents in circumstances where the Lessee did not give timely
notice to such Tax Indemnitee (and such Tax Indemnitee otherwise had no
actual knowledge) of such filing requirement that would have permitted a
proper and timely filing of such return, or (B) results from the failure of
the Lessee to supply information necessary for the proper
44
and timely filing of such return that was not in the possession of such Tax
Indemnitee; and
(x) any Tax that results from the breach by the Lessor of its
representation and warranty made in Section 4.2(b) or the breach of any
Lender of its representation and warranty made in Section 4.3(b).
(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 promptly
notify the Lessee. The Lessee shall be entitled, at its expense, to participate
in, and, to the extent that the Lessee desire 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 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 Lien) 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 any 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
45
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.
Notwithstanding anything contained herein to the contrary, (a) a Tax
Indemnitee will not be required to contest (and the Lessee shall not be
permitted to contest) 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 (b) 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 (x) a Tax Indemnitee shall
obtain a credit or refund of any Taxes paid by
46
the Lessee pursuant to this Section 7.4 or (y) by reason of the incurrence or
imposition of any Tax for which a Tax Indemnitee is indemnified hereunder or any
payment made to or for the account of such Tax Indemnitee by 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 (xx)
the amount of such credit or refund, together with the amount of any interest
received by such Tax Indemnitee on account of such credit or refund or (yy) an
amount equal to such reduction in Taxes, as the case may be; provided that no
such payment shall be made so long as an Event of Default shall have occurred
and be continuing 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 are obligated to indemnify such Tax Indemnitee hereunder
without regard to Section 7.4(b) hereof.
(e) Payments. Any Tax indemnifiable under this Section 7.4 shall be
paid directly when due to the applicable taxing authority if direct payment is
practicable and permitted. If direct payment to the applicable taxing authority
is not permitted or is otherwise not made, any amount payable to a Tax
Indemnitee pursuant to Section 7.4 shall be paid within thirty (30) days after
receipt of a written demand therefor from such Tax Indemnitee accompanied by a
written statement describing in reasonable detail the amount so payable, but not
before the date that the relevant Taxes are due. Any payments made pursuant to
Section 7.4 shall be made to the Tax Indemnitee entitled thereto or the Lessor,
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
47
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 are 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 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 5% or more, 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
48
interpretation of this Master Agreement are not within the scope of the
independent accounting firm's responsibilities.
SECTION 7.5 Basis for Determining Interest Rate Inadequate or Unfair. If on
or prior to the first day of any Rent Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Rent Period,
or
(b) the Required Funding Parties advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately and
fairly reflect the cost to such Funding Parties of funding LIBOR Advances
for such Rent Period,
the Agent shall forthwith give notice thereof to the Lessee and the Funding
Parties, whereupon until the Agent notifies the Lessee that the circumstances
giving rise to such suspension no longer exist, the obligations of the Funding
Parties to make or maintain such Funded Amounts as LIBOR Advances shall be
suspended, and such affected LIBOR Advances shall bear interest or accrue yield,
as the case may be, at the Alternative Rate.
SECTION 7.6 Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof (any such agency being referred to as an "Authority" and any such event
being referred to as a "Change of Law"), or compliance by any Funding Party (or
its Funding Office) with any request or directive (whether or not having the
force of law) of any Authority shall make it unlawful or impossible for any
Funding Party (or its Funding Office) to make, maintain or fund its LIBOR
Advances and such Funding Party shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Funding Parties and the Lessee,
whereupon until such Funding Party notifies the Lessee and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Funding Party to make LIBOR Advances shall be suspended. Before giving any
notice to the Agent pursuant to this Section, such Funding Party shall designate
a different Funding Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Funding Party, be otherwise
disadvantageous to such Funding Bank. If such Funding Party shall determine that
it may not lawfully continue to maintain and fund any of its outstanding LIBOR
Advances to maturity and shall so specify in such notice, each LIBOR Advance of
such Funding Party shall be converted to an Alternative Rate Advance.
49
SECTION 7.7 Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by any Funding Party (or its Funding
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, (1) any such
requirement imposed by the Board of Governors of the Federal Reserve
System, and (2) with respect to any LIBOR Advance, any reserve requirement
described in the definition of Euro-Dollar Reserve Percentage in excess of
the reserve requirement of the Agent) against assets of, deposits with or
for the account of, or credit extended by, any Funding Party (or its
Funding Office); or
(ii) shall impose on any Funding Party (or its Funding Office) or on
the United States market for certificates of deposit or the London
interbank market any other condition affecting its LIBOR Advances or its
obligation to make LIBOR Advances;
and the result of any of the foregoing is to increase the cost to such Funding
Party (or its Funding Office) of making or maintaining any LIBOR Advance, or to
reduce the amount of any sum received or receivable by such Funding Party (or
its Funding Office) under the Operative Documents with respect thereto, by an
amount deemed by such Funding Party to be material, then, within 15 days after
demand by such Funding Party (with a copy to the Agent), the Lessee shall pay to
such Funding Party such additional amount or amounts as will compensate such
Funding Party for such increased cost or reduction.
(b) If any Funding Party shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Funding Party (or its Funding
Office) with any request or directive regarding capital adequacy (whether or not
having the force of law) of any Authority, has or would 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 adoption, 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 within 15 days after
demand by such Funding Party (with a copy to the Agent), the Lessee shall pay to
such Funding Party such additional amount or amounts as will compensate such
Funding
50
Party for such reduction, but in no event shall the Lessee be liable for amounts
incurred more than 90 days prior to receipt of such demand.
(c) Each Funding Party will promptly notify the Lessee and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Funding Party to compensation pursuant to this Section and
will designate a different Funding Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Funding Party, be otherwise disadvantageous to such Funding
Party. A certificate of any Funding Party claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Funding Party may use any reasonable averaging and attribution
methods.
(d) Notwithstanding the foregoing, in the event the Lessee is required
to pay any Funding Party amounts pursuant to Section 7.6 or this Section 7.7 and
the designation of a different Funding Office pursuant to Section 7.6 or Section
7.7 will not avoid the need for compensation to such Funding Party (an "Affected
Funding Party"), the Lessee may give notice to such Affected Funding Party (with
copies to the Agent) that it wishes to seek one or more assignees (which may be
one or more of the Funding Parties) to assume the Commitment of such Affected
Funding Party and to purchase its outstanding Funded Amounts; provided, that if
there is more than one Affected Funding Party which has requested substantially
and proportionally equal compensation hereunder, the Lessee shall elect to seek
an assignee to assume the Commitments of all such Affected Funding Parties. Each
Affected Funding Party agrees to sell its Commitment, Funded Amounts and
interest in the Operative Documents in accordance with Section 6 to any such
assignee for an amount equal to the sum of the outstanding unpaid principal of
and accrued interest or Yield on such Funded Amounts, plus all other fees and
amounts (including, without limitation, any compensation due to such Affected
Funding Parties under Section 7.6 or this Section 7.7) due to such Affected
Funding Party hereunder calculated, in each case, to the date such Funded
Amounts and interest are purchased. Upon such sale or prepayment, each such
Affected Funding Party shall have no further commitment or other obligation to
the Lessee hereunder or under any Operative Document.
(e) The provisions of this Section 7.7 (i) shall be applicable with
respect to any Assignee, and any calculations required by such provisions shall
be made based upon the circumstances of such Assignee and (ii) shall constitute
a continuing agreement and shall survive the termination of the
51
Operative Documents and the payment in full or cancellation of the Funded
Amounts.
SECTION 7.8 Alternative Rate Advances Substituted for Affected LIBOR
Advances. If (i) the obligation of any Funding Party to make or maintain any
LIBOR Advances has been suspended pursuant to Section 7.6 or (ii) any Funding
Party has demanded compensation under Section 7.7, and the Lessee shall, by at
least 5 Business Days' prior notice to such Funding Party through the Agent,
have elected that the provisions of this Section shall apply to such Funding
Party, then, unless and until such Funding Party notifies the Lessee that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Funded Amounts which would otherwise be made by such Funding
Party as LIBOR Advances shall be made instead as Alternative Rate Advances
(in all cases interest, Yield and principal on such Funded Amounts shall be
payable contemporaneously with the related Funded Amounts of the other
Funding Parties), and
(b) after each of its LIBOR Advances has been repaid, all payments of
principal which would otherwise be applied to repay such LIBOR Advances
shall be applied to repay its Alternative Rate Advances instead.
SECTION 7.9 Compensation. Upon the request of any Funding Party,
delivered to the Lessee and the Agent, the Lessee shall pay to such Funding
Party such amount or amounts as shall compensate such Funding Party for any
loss, cost or expense incurred by such Funding Party as a result of:
(a) any payment or prepayment of LIBOR Advances on a date other than
the last day of an Rent Period for such LIBOR Advance; or
(b) if the Funding Parties have permitted prepayment of any LIBOR
Advances, any failure by the Lessee to prepay such LIBOR Advances on the date
for such prepayment specified in the relevant notice of prepayment hereunder; or
(c) any failure by the Lessee to consummate a Funding on the date
specified in the applicable Funding Request;
such compensation to include, without limitation, as applicable: (A) an amount
equal to the excess, if any, of (x) the amount of interest which would have
accrued on the amount so paid or prepaid or not prepaid or funded for the period
from the date of such payment, prepayment or failure to prepay or to take
funding to the last day of the then current Rent Period for such LIBOR Advance
(or, in the case of a failure to prepay or to take
52
funding, the Rent Period for such LIBOR Advance which would have commenced on
the date of such failure to prepay or to take funding) at the applicable rate of
interest or yield for such LIBOR Advance provided for herein over (y) the amount
of interest or yield (as reasonably determined by such Funding Party) such
Funding Party would have paid on deposits in Dollars of comparable amounts
having terms comparable to such period placed with it by leading banks in the
London interbank market.
SECTION 7.10 Limitation on Certain Payment Obligations. (a) Each
Funding Party or the Agent shall make written demand on the Lessee for
indemnification or compensation pursuant to Section 7.7, 7.8 or 7.9 hereof no
later than 120 days after the event giving rise to the claim for indemnification
or compensation occurs.
(b) In the event that any Funding Party or the Agent fails to give the
Lessee notice within the applicable time limitation prescribed in (a) above, the
Lessee shall have no obligation to pay such claim for compensation or
indemnification hereunder.
SECTION 7.11 End of Term Indemnity. In the event that at the end of
the Lease Term (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 Balance. The Lessee shall promptly reimburse the Lessor for the amount
equal to such decline in value to the extent below the Lease Balance 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 an office, store or warehouse of the
53
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 to the extent not covered by insurance or condemnation proceeds
applied to the Lease Balance, 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 Existing Lease.
SECTION 8
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 and the termination or expiration of
this Master Agreement and any of the Operative Documents, the transfer of any
Land to the Lessor as provided herein, 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.
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, as such other address as any such party shall specify to the
other parties hereto, and shall be deemed to have been given (i) the 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
54
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, 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 the
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 Lessor and the Required
Funding Parties; provided, however, that
(x) notwithstanding the foregoing provisions of this Section 8.4, 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 increasing the Commitment of
such Funding Party;
(ii) amending, modifying, waiving or supplementing any of the
provisions of Section 3 of the Loan Agreement or the representations of
such Funding Party in Section 4.2 or 4.3 or the covenants of such Funding
Party in Section 6 of this Master Agreement;
(iii) reducing any amount payable to such Funding Party under the
Operative Documents or extending the time for payment of any such amount,
including, without limitation, any Rent, any Funded Amount, any fees, any
indemnity, the Lease Balance, any Funding Party Balance, Recourse
Deficiency Amount, interest or Yield; or
(iv) consenting to any assignment of the Lease, releasing any of the
collateral assigned to the Agent and
55
the Lenders pursuant to the Mortgage and the Assignment of Lease and Rents
(but excluding a release of any rights that the Lender 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 the Lessee from its
obligations under the Operative Guaranty or the other 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 and the Lender, be
made to the Lease; 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 Mortgage and the Assignment of Lease and Rents without the consent of
the Lessee (such consent not to be unreasonably withheld or delayed); the Lessor
and the Lessee may not amend, supplement, waive or modify any terms of the Lease
without the consent of the Agent and the Lender.
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 in connection with the preparation, execution and delivery of the
Operative
56
Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto requested by or consented to by
the Lessee (including, without limitation, the actual, reasonable and documented
fees and disbursements of Xxxxx, Xxxxx & Xxxxx, special counsel to the Agent and
of the Lessor, the Agent and the Lender in connection with the enforcement of
the Operative Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable and documented fees and
disbursements of counsel for the Lessor, the Agent and the Lender actually
incurred), in each case (including without limitation in respect of any Lease
Supplement notwithstanding the absence of this phrase therefrom) without regard
to any statutory presumption as to the amount of legal fees.
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 the 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 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:
(i) submits for itself and its property in any legal action or
proceeding relating to this Master Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Georgia sitting in Xxxxxx County, Georgia, the courts of the
00
Xxxxxx Xxxxxx xx Xxxxxxx for the Northern District of Georgia, and
appellate courts from any thereof;
(ii) consents that any such action or proceedings may be brought to
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead
or claim the same;
(iii) 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
(iv) 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.
SECTION 8.13 Confidentiality. Each Funding Party agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by the Lessee to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Funding Party who are or are expected to become engaged in evaluating,
approving, structuring or administering the transaction contemplated by the
Operative Documents; provided, however that nothing herein shall prevent any
Funding Party from disclosing such information (i) to any other Funding Party,
(ii) upon the order of any court or administrative agency, (iii) upon the
request or demand of any regulatory agency or authority having jurisdiction over
such Funding Party, (iv) which has been publicly disclosed, (v) to the extent
reasonably required in connection with any litigation to which the Agent, any
Funding Party or their respective Affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of any
58
remedy hereunder, (vii) to such Funding Party's legal counsel and independent
auditors and (viii) to any actual or proposed participant, assignee or other
transferee of all or part of its rights hereunder which has agreed in writing to
be bound by the provisions of this Section 8.13; provided that should disclosure
of any such confidential information be required by virtue of clause (ii) of the
immediately preceding sentence, any relevant Funding Party shall promptly notify
the Lessee of same (unless prohibited by such order in clause (ii)) so as to
allow the Lessee to seek a protective order or to take any other appropriate
action; provided, further, that, no Funding Party shall be required to delay
compliance with any directive to disclose any such information so as to allow
the Lessee to effect any such action.
59
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.
EQUIFAX INC., as the Lessee
By:
------------------------------------
Name Printed:
Title:
FLORIDA MASTER
AGREEMENT
S-1
PREFCO VI LIMITED PARTNERSHIP, as
Lessor
By: AFG PREFCO GP, LLC, a Texas
limited liability company, as
general partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
FLORIDA MASTER
AGREEMENT
S-2
SUNTRUST BANK, ATLANTA,
as Agent and Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name Printed: Xxxxx X. Xxxxxx
Title: Director
FLORIDA MASTER
AGREEMENT
S-3
ATLANTIC FINANCIAL GROUP, LTD.
By: Atlantic Financial Managers,
Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxxx
Title: President
FLORIDA MASTER
AGREEMENT
S-4
SCHEDULE 2.2
PAYMENT INSTRUCTIONS AND
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 3.5%
Lender Commitment Percentage: 96.5%
Lessor Commitment: $ 811,125.00
Lender Commitment: $22,363,875.00
SCHEDULE 6
EQUIFAX COMPETITORS
TRW Information Services, Inc. (and TRW, Inc., its parent)
TransUnion (TU)
Computer Sciences Corporation (CSC)
Dun & Bradstreet (D&B)
First Financial Management Corp. (FFMC), (includes Telecheck NABANCO)
Total Systems Services, Inc.
First Data Resources (FDR)
Policy Management Systems Corp. (PMSC)
Xxxxxx Xxxxxx
Xxxxxxxxx
National Processing Co. (NPC)
Deluxe Check Printers (including SCAN)
Fair, Xxxxx & Co.
National Data Corp.
DATEQ
Continuum
Creditel
EMSI
PAYCO American Corp.
Olsten's Temporary
Xxxxxxx, PLC
Next PLC
Experian, Inc. (and Great Universal Stores, its parent)
Acxiom Corporation
Atlantes
Direct Marketing Technologies, Inc.
Dynamark
Xxxxx Xxxxx
InfoUSA
Metromail Corporation
X.X. Xxxx Company
Electronic Data Systems
SCHEDULE 8.2
ADDRESSES FOR NOTICES
Lessee: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Treasurer Director of
Corporate Real Estate
General Counsel
with a copy to:
Xxxxxxx X. Xxxxxxx
Long Xxxxxxxx & Xxxxxx LLP
5300 SunTrust Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Lessor and AFG: c/o Atlantic Financial Group, Ltd.
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Agent: XxxXxxxx Xxxx, Xxxxxxx
00 Xxxx Xxxxx
Mail Code 127
Xxxxxxx, Xxxxxxx 00000
Attn: Center 127/Atlanta Corporate
Banking
with a copy to:
c/o SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx
24th Floor
Mail Code 3943
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
EXHIBIT A
TO MASTER AGREEMENT
FORM OF FUNDING REQUEST
TO: PREFCO VI LIMITED PARTNERSHIP, as Lessor,
under the Master Agreement
referred to below
Reference is hereby made to the Master Agreement (Florida Property) dated
as of December 30, 1999 (as heretofore amended, the "Master Agreement") among
Equifax Inc., as Lessee and Guarantor, PREFCO VI LIMITED PARTNERSHIP, as Lessor,
Atlantic Financial Group, Ltd. and SunTrust Bank, Atlanta, as Agent and Lender.
Capitalized terms not otherwise defined herein are used herein as defined in the
Master Agreement.
Equifax Inc. as Lessee (the "Lessee") hereby notifies you that Lessee
requests a Funding in the amount of $____________ on [INSERT REQUESTED FUNDING
DATE] in respect of [DESCRIBE LAND INTEREST].
In connection with such requested Funding, the Lessee hereby represents and
warrants to you as follows:
(A) on the requested Funding Date the representations and warranties
of the Lessee contained in each of the Operative Documents shall be true
and correct in all material respects as though made on and as of such
Funding Date, except to the extent such representations or warranties
relate solely to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and
as of such earlier date;
(B) there shall not have occurred and be continuing any Event of
Default, Potential Event of Default;
(C) each Operative Document to which the Lessee is a party is in full
force and effect with respect to it;
(D) no event that could reasonably be expected to have a Material
Adverse Effect has occurred since March 31, 1997;
(E) the amount of the requested Funding represents amounts in respect
of the purchase price for the
remainderman interest in the Leased Property [and the partnership interests
in the Lessor]; and
(F) all of the conditions precedent to such Funding set forth in
Section 3 of the Master Agreement have been satisfied.
Please wire transfer the proceeds of the Funding to ____________________.
The Lessee has caused this Funding Request to be executed and delivered by
its duly authorized officer this _______ __, ___.
EQUIFAX INC.
By:
------------------------------------
Title:
---------------------------------
cc: SunTrust Bank, Atlanta
A-2
EXHIBIT B
TO MASTER AGREEMENT
FORM OF ASSIGNMENT OF LEASE AND RENTS
[As of the commencement date of the Master Agreement,
the form was not prepared per agreement among the parties.]
EXHIBIT D
TO MASTER AGREEMENT
FORM OF MORTGAGE
[As of the commencement date of the Master Agreement,
the form was not prepared per agreement among the parties.]
EXHIBIT E
TO MASTER AGREEMENT
COMPLIANCE CERTIFICATE
Reference is made to the Master Agreement (Florida Property) dated as of
December 30, 1999 (as modified and supplemented and in effect from time to time,
the "Master Agreement") among Equifax Inc., PREFCO VI Limited Partnership,
Atlantic Financial Group, Ltd. and SunTrust Bank, Atlanta, as Agent and Lender.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Master Agreement.
Pursuant to Section 5.1(c) of the Master Agreement, (i) ______________, the
duly authorized _______________________ of Equifax Inc. hereby certifies to the
Funding Parties as required by Section 5.1(c) that the information contained in
the Compliance Check List attached hereto is true, accurate and complete as of
__________, _____, and (ii) _______________, the duly authorized
______________________________of Equifax Inc. hereby (A) certifies to the
Funding Parties as required by Section 5.1(c) that to the knowledge of such
officer, no Event of Default or Potential Event of Default is in existence on
and as of the date hereof and (B) restates and reaffirms as required by Section
5.1(c) that to the knowledge of such officer, the representations and warranties
contained in Section 4.1 of the Master Agreement are true on and as of the date
hereof (x) as stated as to representations and warranties which contain
materiality limitations, and (y) in all material respects as to all other
representations and warranties.
Dated this _____ day of ____________, 199/200__.
EQUIFAX INC.
By:
------------------------------------
Title:
COMPLIANCE CHECK LIST
Equifax Inc.
_________________________
[As of the commencement date of the Master Agreement,
the check list was not prepared per agreement among the parties.]
E-2
Exhibit F
Form of Environmental Audit Reliance Letter
Intentionally Omitted.
EXHIBIT G-l
(LONG XXXXXXXX & XXXXXX LLP LOGO)
ATTORNEYS AT LAW
December 30, 1999
SunTrust Bank, Atlanta
X.X. Xxx 0000, XX000
Xxxxxxx, Xxxxxxx 00000-0000
Prefco VI Limited Partnership
0000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
RE: EQUIFAX INC. LEASE TRANSACTION - FLORIDA
Ladies and Gentlemen:
We have acted as special local counsel for Equifax Inc., a Georgia
corporation ("Lessee"), in connection with a lease transaction between Lessee,
Prefco VI Limited Partnership ("Lessor") and SunTrust Bank, Atlanta ("Agent").
We render this opinion to you at the request of Lessee.
In connection with this opinion, we have examined copies of each of the
following documents:
A. Master Agreement, dated as of December 30, 1999 (the "Master
Agreement"), among Lessee, Lessor, and Agent;
B. Lease Agreement, dated as of December 30, 1999 (the "Lease"), by and
between Lessor and Lessee; and
C. Operative Guaranty (the "Guaranty"), dated as of December 30, 1999, from
Lessee in favor of Lessor and Agent; and
D. Consent and Agreement of Lessee (the "Consent"), dated as of December
30, 1999 from Lessee in favor of Agent.
The documents listed in (A) through (D) above are hereinafter sometimes
collectively referred to as the "Lease Documents." All of the Property,
including real estate, personal property
ATLANTA.4161174.2
000 XXXXXXXXX XXXXXX - XXXXX 0000
XXXXXXX, XXXXXXX 00000
000 000-0000 - FACSIMILE 404 527-4198
WASHINGTON, D.C. XXXXXX
000 XXXXXXXXXXXX XXXXXX. X.X. - XXXXX 000
XXXXXXXXXX, X.X. 00000
000 000-0000 - FACSIMILE 000 000-0000
December 30, 1999
Page 2
and fixtures, purported to be leased to Lessee pursuant to the Lease is
hereinafter sometimes referred to as the "Property."
In connection with this opinion, we have assumed that:
(a) Lessee is a corporation duly organized, validly existing and in
good standing under the laws of Georgia, and is duly authorized to transact
business in each jurisdiction where its activities or presence required that it
be so qualified; and
(b) Lessee has all requisite authority to lease the Property, to
execute the Lease Documents, and to perform its obligations under the Lease
Documents; and
(c) The execution, delivery and performance of the Lease Documents by
Lessee are within the corporate powers of Lessee and have been duly authorized
by all necessary action by or on behalf of Lessee; and
(d) Each individual executing the Lease Documents has the requisite
legal capacity to execute and be bound by (or cause the entity for which such
individual is signing to be bound by) the agreements contained in such
documents; and
(e) The Lease Documents have been duly and validly executed and
delivered by Lessee in the form submitted to us; and
(f) Each of the parties to the Lease Documents other than Lessee has
duly and validly executed and delivered each Lease Document to which such party
is a signatory, and each Lease Document (and each provision of the Lease
Documents which is not governed by and construed in accordance with the laws of
the State of Georgia) are such parry's legal, valid and binding obligations,
enforceable against such party in accordance with their respective terms. Each
Lease Document and each provision of the Lease Documents which is not governed
by and construed in accordance with the laws of the State of Georgia are
Lessee's legal, valid and binding obligations, enforceable against Lessee in
accordance with their respective terms. If all or any provisions of the Lease
Documents are determined to be governed by and required to be construed in
accordance with the laws of the State of Florida, the Lease Documents or such
provisions are legal, valid and enforceable against each of the parties thereto
in accordance with their respective terms under Florida law; and
(g) Lessor is a limited partnership duly organized, validly existing,
and in good standing under the laws of the State of Connecticut; Agent is a
Georgia banking corporation duly organized, validly existing, and in good
standing under the laws of the State of Georgia; and the Lease Documents have
been duly authorized and delivered by Lessor and Agent to the extent
ATLANTA 4161174.2
December 30, 1999
Page 3
required and constitute the legal, valid, binding and enforceable obligations of
Lessor and Agent, respectively; and each of Lessor and Agent has the requisite
power and authority to perform its respective obligations under the Lease
Documents; and each of Lessor and Agent has all requisite governmental
certificates of authority, licenses, permits, consents, qualifications, and
documentation to engage in the transaction covered by this opinion; and
(h) The Agent has acted and will act in good faith and without notice
of any defense against enforcement of rights created by, or adverse claim to any
property pledged as part of, the transaction contemplated by the Lease
Documents. The Agent has complied with all laws applicable to it that affect the
transaction; and
(i) The transaction complies with any test required by law of good
faith or fairness. Each party will act in accordance with the terms and
conditions of the Lease Documents; and
(j) No discretionary act of the Lessee or on its behalf will be taken
after the date of the transaction if such act might result in a violation of law
or breach or default under any agreement, decree, writ, judgment or court order.
The Lessee will obtain all permits and governmental approvals and take all other
actions which are both (i) relevant to performance of the Lease Documents and
(ii) required in the future under applicable law; and
(k) Any documents to which the Lessee is a party or by which the
Lessee is bound (other than the Lease Documents) will be enforced as written;
and
(l) With respect to the transaction and the Lease Documents, there has
been no mutual mistake of fact and there exists no fraud or duress; and
(m) Lessee has or would be deemed to have as of the date hereof, and
at the time of the execution and delivery of the Lease Documents, valid title
to, or an interest in, and the unrestricted right to convey, lease or encumber
the Property; and
(n) Lessee has received, or prior to or concurrently with the
execution and delivery of the Lease Documents will receive, the value and other
consideration recited to be received by it in the Lease Documents; and
(o) In the event that any party to any of the Lease Documents seeks to
maintain any action, suit or proceeding in the courts of the State of Georgia to
enforce any provision of any of the Lease Documents, such person, if required at
such time to hold a certificate of authority to transact business as a foreign
corporation in the State of Georgia, will have obtained such a certificate prior
to commencing such action, suit or proceeding; and
December 30, 1999
Page 4
(p) The interest currently provided for in (or any other interest
allowed or to be subsequently designated under the terms of) the Lease or the
Lease Documents, together with all other charges in the nature of interest
payable with respect to the transactions contemplated by the Lease Documents,
will not at any time (whether due to prepayment, acceleration, lack of
borrowing, or otherwise) exceed five percent (5%) per month as prohibited by
O.C.G.A. Section 7-4-18 and that no such interest or charges constitute
precomputed interest within the meaning of O.C.G.A. Section 7-4-2(b); and
(q) There is no payment of, or agreement for the payment of, interest
on unpaid interest under the Lease Documents in violation of O.C.G.A. Section
7-4-17; and
(r) The parties to the Lease Documents and their successors and
assigns will (i) act in good faith and in a commercially reasonable manner in
the exercise of any rights or enforcement of any remedies under the Lease
Documents; (ii) not engage in any conduct in the exercise of such rights or
enforcement of such remedies that would constitute other than fair dealing; and
(iii) comply with all requirements of applicable procedural and substantive law
in exercising any rights or enforcing any remedies under the Lease Documents;
and
(s) The exercise of any rights or enforcement of any remedies under
the Lease Documents would not be unconscionable, result in a breach of the peace
or otherwise be contrary to public policy.
In rendering this opinion we have also assumed that: all documents
submitted to us as originals are authentic; all signatures on documents
submitted to us are genuine; all documents, including but not limited to certain
of the Lease Documents, submitted to us as certified or conformed copies,
photocopies or telecopies are identical to the original documents; the
"black-lining" on drafts of Lease Documents received by us since the first draft
we reviewed have accurately reflected all changes since the draft reviewed; the
Lease Documents accurately reflect the complete understanding of the parties
with respect to the transactions contemplated thereby and the rights and
obligations of the parties thereunder; and that all certificates, and all
telegraphic and telephonic confirmations, given by public officials or by third
parties referred to herein have been properly given and are accurate. We have
also assumed that the terms and conditions of the Lease as reflected in the
Lease Documents have not been amended, modified or supplemented, directly or
indirectly, by any other agreement or understanding of the parties or waiver of
any of the material provisions of the Lease Documents. All references herein to
the Lease Documents (or other documents identified herein) shall be deemed to
refer only to the body of such documents exclusive of other documents referred
to or incorporated by reference therein.
We call your attention to the fact, and all parties are aware that, Lessee
is not and has never been the owner of record of any interest in the Property
other than under the Lease, and you have
December 30, 1999
Page 5
asked us to render an opinion on the assumption that the Lease would be deemed
to constitute a conveyance of fee simple title to the Property to Lessee, and a
conveyance of security title and a security interest in the Property from Lessee
to Lessor to secure an obligation in excess of $250,000.00. We render no opinion
herein as to whether the lease would be so interpreted, or as to whether title
to the Property would be deemed to be in Lessor or Lessee, or with respect to
the effect of the determination of such title matters on the enforceability of
the Lease Documents or any of the other matters addressed herein.
All assumptions stated in this letter are made with your permission and
without investigation, computation or other action on our part to confirm the
validity of any such assumptions. To the extent that any of such assumptions are
not true, the same are made hypothetically to permit the rendering of this
opinion.
We have not made or undertaken to make any investigation of the state of
title to the Property, and we express no opinion with respect to the title of
the Property or with respect to the existence or perfection (or continuation of
perfection) of any security title, lien, security interest, encumbrance,
usufruct or leasehold interest purported to be created by the Lease or any other
Lease Document. In addition, we express no opinion as to the priority of any
security title, lien, security interest, encumbrance, usufruct or leasehold
interest purported to be created by the Lease or any other Lease Document.
Based on the foregoing and subject to the assumptions, limitation,
qualifications and exceptions set forth herein, we are of the opinion that:
1. Each of the Lease Documents, insofar as it is governed by and construed
in accordance with the laws of the State of Georgia, is a legal, valid and
binding obligation of Lessee, enforceable by Lessor against Lessee in accordance
with its terms, except that: (a) the enforceability of the Lease Documents is
subject to the effect of bankruptcy, insolvency, reorganization, arrangement and
moratorium laws and other laws from time to time in effect relating to or
affecting generally the enforcement of creditors' and lessor's rights and
remedies (including, without limitation, the effect of the Federal Bankruptcy
Code in its entirety, including matters of contract rejection, fraudulent
conveyance and obligation, turn-over, preference, equitable subordination,
automatic stay, conversion of a non-recourse obligation into a recourse
obligation, substantive consolidation and proofs of claim, and state laws
regarding fraudulent transfers, obligations and conveyances, including O.C.G.A.
Section 18-2-20, et seq., and state receivership laws); (b) the enforceability
of the Lease Documents is subject to the effect of the exercise of customary
principles, judicial decisions, and laws governing, limiting or affecting
equitable remedies or relief generally (including, without limitation, matters
of public policy) whether considered in a proceeding at law or in equity
(including, without limitation, principles governing the availability of
specific performance, injunctive relief or other traditional equitable remedies,
principles affording traditional
December 30, 1999
Page 6
equitable defenses [e.g., waiver, laches and estoppel], good faith and fair
dealing, reasonableness. materiality of breach, impracticability or
impossibility of performance, the effect of obstruction, failure to perform or
otherwise to act in accordance with an agreement by any person other than
Lessee, the effect of Section 1-102(3) of the Uniform Commercial Code, and
unconscionability); (c) certain remedies, waivers, and other provisions of the
Lease Documents may not be enforceable under applicable laws and judicial
decisions (in addition to those referred to in subparagraphs (a) and (b)
immediately above) and certain equitable or specific remedies may be unavailable
under such laws and decisions; however, it is our opinion that such laws and
decisions (other than those referred to in subparagraphs (a) and (b) immediately
above) do not make the remedies and procedures which will be afforded to the
holder of the Lease Documents inadequate for the realization of the substantive
benefits intended to be provided by the Lease Documents to the holder thereof,
except for the economic consequences, if any, resulting from any delay caused by
such applicable laws and judicial decisions and so long as such remedies and
procedures are exercised in compliance with applicable laws and judicial
decisions of the State of Georgia relating to the exercise of such remedies and
procedures.
2. Assuming that the principal amount actually disbursed to Lessee or which
would be deemed to have been actually disbursed to Lessee for usury purposes
exceeds $250,000.00, none of the payments of interest provided for in the Lease
Documents violates the usury laws of the State of Georgia.
3. The execution and delivery of the Lease Documents by Lessee and the
performance by Lessee of its obligations thereunder, do not conflict with or
result in a violation of any law, rule or regulation of the State of Georgia or
the United States of America to which Lessee or its assets are subject which a
lawyer using customary due diligence would reasonably recognize as applicable to
the execution and delivery of the Lease Documents or the performance by Lessee
of its obligations thereunder. For purposes of this opinion, "law, rule or
regulation" includes only those laws, rules or regulations which either prohibit
performance by Lessee under the Lease Documents or subject Lessee to a fine,
penalty or other similar sanction.
This opinion is based upon and subject to the qualifications, limitations
and exceptions set forth below:
A. Without limiting the generality of, or implying any other limitation of,
any other assumption, qualification, limitation or exception set forth in this
opinion letter, our opinion set forth herein is subject to each of the following
exceptions:
(i) The effect and possible unenforceability of contractual provisions
providing for choice of governing law; or
December 30, 1999
Page 7
(ii) The possible unenforceability of provisions purporting to waive
certain rights of guarantors or indemnitors (whether expressed as waivers,
consents or otherwise); or
(iii) The possible unenforceability of provisions requiring
indemnification for, or providing exculpation, release or exemption from
liability for, action or inaction, to the extent such action or inaction
involves negligence or willful misconduct of the person or entity
indemnified (or of any agent, contractor, employee, representative,
partner, officer, director or shareholder of such person or entity) or to
the extent otherwise contrary to public policy; or
(iv) The possible unenforceability of provisions purporting to require
arbitration of disputes; or
(v) The possible unenforceability of provisions prohibiting
competition, the solicitation or acceptance of customers, of business
relationships or of employees, the use or disclosure of information, or
other activities in restraint of trade; or
(vi) The possible unenforceability of provisions imposing increased
interest rates or late payment charges upon delinquency in payment or
default or providing for liquidated damages, or for premiums on prepayment,
acceleration, redemption, cancellation, or termination, to the extent any
such provisions are deemed to be penalties or forfeitures; or
(vii) The possible unenforceability of waivers or advance consents
that have the effect of waiving statutes of limitation, marshaling of
assets or similar requirements, or as to the jurisdiction of courts, the
venue of actions, the right to jury trial, defenses or rights of
subrogation, or, in certain cases, notice; or
(viii) The possible unenforceability of provisions that waivers or
consents by a party may not be given effect unless in writing or in
compliance with particular requirements or that a person's course of
dealing, course of performance, or the like or failure or delay in taking
actions may not constitute a waiver of related rights or provisions or that
one or more waivers may not under certain circumstances constitute a waiver
of other matters of the same kind; or
(ix) The effect of course of dealing, course of performance, or the
like, that would modify the terms of an agreement or the respective rights
or obligations of the parties under an agreement; or
December 30, 1999
Page 8
(x) The possible unenforceability of provisions that enumerated
remedies are not exclusive or that a party has the right to pursue multiple
remedies without regard to other remedies elected or that all remedies are
cumulative; or
(xi) The effect of O.C.G.A. Section 13-1-11 on provisions relating to
attorneys fees; or
(xii) The possible unenforceability of provisions that determinations
by a party or a party's designee are conclusive; or
(xiii) The possible unenforceability of provisions permitting
modifications of an agreement only in writing; or
(xiv) The possible unenforceability of provisions that the provisions
of an agreement are severable; or
(xv) The effect of laws requiring mitigation of damages; or
(xvi) The possible unenforceability of provisions permitting the
exercise, under certain circumstances, of rights without notice or without
providing opportunity to cure failures to perform; or
(xvii) The effect of agreements as to rights of set off otherwise than
in accordance with the applicable law; or
(xviii) The possible unenforceability of any provision contained in
the Lease Documents purporting to allow the holder to accelerate the
maturity of the indebtedness evidenced and secured thereby or the sums
required to be paid thereunder without notice to Lessee: or
(xix) The possible unenforceability of any provision contained in the
Lease Documents relating to the appointment of a receiver, or
(xx) The possible unenforceability of any provision contained in the
Lease Documents purporting to provide to the holder of the Lease Documents
(or any other party which is not the receiver of the Property), the right
to the possession or control of cash, deposits, instruments or other
property which relate to or constitute a portion of the Property after the
appointment of a receiver; or
(xxi) We render no opinion with respect to the laws, ordinances,
regulations or rules of any county, city or other political subdivision of
the State of Georgia or any other
December 30, 1999
Page 0
xxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx; antitrust and unfair competition
law; securities law; tax law; laws governing fiduciary obligations; pension
and employee benefit law; fraudulent transfer law; environmental law; land
use and subdivision law; bulk transfer law; patent, copyright, trademark
and other intellectual property law; racketeering law; criminal statutes of
general application; and labor law; or
(xxii) The effect of the rights of the United States under the Federal
Tax Lien Act of 1966, as amended: or
(xxiii) The present or future value of any collateral; or
(xxiv) The possible unenforceability of any provision contained in the
Lease Documents which purports to grant an absolute assignment of any
leases, rents, income, issues, profits, revenues or any other Property,
rather than a collateral assignment; or
(xxv) The possible unenforceability of any "usury savings provisions"
contained in the Lease Documents; or
(xxvi) The possible unenforceability of any provision allowing another
to act as attorney-in-fact for Lessee; or
(xxvii) The possible unenforceability of any provision requiring the
Lessee to "perform as directed" with respect to any undertaking; or
(xxviii) The possible unenforceability of any provision allowing the
conducting of more than one sale of any real or personal property affected
by the Lease; or
(xxix) The possible unenforceability of the Lease Documents unless
payment in full is made of all such fees, taxes (including, without
limitation, any intangibles taxes and transfer taxes), charges and any
statutory interest and penalty with respect thereto, as may be due and
payable in connection with the Lease Documents or the transactions
contemplated in the Lease Documents; or
(xxx) The possible unenforceability of any provision requiring
payments by Lessee, imposing obligations upon Lessee, or allowing the
maintaining of any action against Lessee, after a sale of any real property
affected by the Lease under the power of sale or other remedies contained
in the Lease without confirmation of such sale as required by Georgia law;
or
December 30, 1999
Page 10
(xxxi) The possible unenforceability of any provision for, or
depending upon a security title, security interest or lien upon any real or
personal property described in the Lease continuing to exist under the
Lease following a judicial foreclosure or sale under power of sale of any
of the real or personal property described in the Lease; or
(xxxii) The possible unenforceability of any provision of the Lease
Documents that purports to survive notwithstanding the satisfaction,
cancellation, discharge, release, foreclosure or assignment of the Lease
Documents in light of Xxxxxxx Road Associates. Ltd. x. Xxxxxxxxx, 448
S.E.2d 83 (Ga. App. 1994); or
(xxxiii) The possible unenforceability of any provision to the effect
that actions of the holder shall not cause the holder to become a
"mortgagee in possession" or impose upon the holder any duty with respect
to the Property; or
(xxxiv) The possible unenforceability of any provision for waiver of
service of process or requiring any party to make a voluntary appearance in
any action, suit or proceeding; or
(xxxv) The possible lack of assignability of portions of the Property
or rights relating thereto, including, without limitation, the
assignability of any licenses, permits, approvals, bonds, insurance or
causes of action or rights under contracts, where any such portion of the
Property is not assignable by reason of its nature, its terms or of laws,
ordinances, rules, regulations or judicial or administrative decisions or
otherwise; or
(xxxvi) The possible unenforceability of the provisions of Section
13.1 (c) of the Lease, pursuant to which Lessor has the right to sell the
Property upon any "Event of Default" (as defined therein); or
(xxxvii) If the transaction is characterized as a lease (in addition
to the qualifications, limitations and exceptions set forth above):
(A) The effect of a termination of the Lease on the obligations
of Lessee under the Lease and the other Lease Documents. Such
termination may have the effect of releasing any and all obligations
arising under the Lease and the other Lease Documents.
(B) The possible unenforceability of any right of the Lessor to
accelerate the rent payable under the Lease Documents, or of any lease
remedies, which purport to be governed by Florida law.
December 30, 1999
Page 11
B. Our opinion as to the validity, enforceability and binding effect of any
assignment of rents contained in the Lease Documents is further qualified by the
effect of the order dated January 11, 1993, in the case styled In Re: Polo Club
Apartments Associates Limited Partnership f/k/a Ashlev Creek Associates. Limited
Partnership, United States Bankruptcy Court, Northern District of Atlanta
Division, Chapter 7 Case No. A89-14227, in which the court stated that a
"security deed grantee out of possession is not presently entitled to receive
rents merely upon the occurrence or existence of a default. The grantor being in
possession and receiving rents may not be disturbed in his right to the rents by
the security deed grantee until he takes possession or takes other appropriate
action to subject the land and rents to the debt. This means that affirmative
action or positive steps must be taken by the security deed grantee before there
is a present right to receive rents under such written rent assignment." As a
result of this order, it is uncertain whether the holder of the Lease Documents
has the right to take the rents from the Property pursuant to the Lease
Documents prior to taking possession of such Property, and our opinion is
limited and qualified accordingly.
C. With respect to the validity, enforceability and binding effect of the
environmental indemnity and hold harmless agreements by Lessee included in the
Lease Documents in favor of the holder thereof, we have relied upon a number of
federal court decisions, although we note that some cases arising under the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")
support the proposition that such private indemnity agreements are not
enforceable. In addition, we note that CERCLA and other environmental laws have
sometimes been interpreted to impose independent liability on lenders in a
manner that may under certain circumstances be beyond the scope of the Lease
Documents.
D. We note that the Lease Documents contain provisions (including, without
limitation, Section 2.4 of the Master Agreement and Article XI of the Lease)
which purport to require the transactions contemplated in the Lease Documents to
be characterized as a Lease Transaction for some purposes and as a loan
transaction for some purposes, and purport to characterize the Lease as a
mortgage, deed to secure debt or deed of trust. Without limitation of any other
assumption, limitation, qualification or exception set forth herein, we render
no opinion with respect to the effect or enforceability of any such provision,
or with respect to the effect of the inclusion of such provision on other
provisions of the Lease Documents which might otherwise be enforceable in the
absence of such provisions. We render no opinion with respect to whether the
transactions contemplated in the Lease Documents will be characterized as a
lease or as a loan, or with respect to whether the Lease Documents will be
characterized as a lease, mortgage, deed to secure debt, deed of trust or other
security instrument. Further, if the transactions contemplated in the Lease
Documents are characterized as a lease and the Lease Documents are themselves
characterized as a lease, we render no opinion with respect to any provisions of
the Lease Documents which would be applicable with respect to a loan transaction
(including, without limitation, any provisions purporting to create a right of
foreclosure or power of sale or any other remedies for the enforcement of any
lien or security title in the property); and, if the transactions contemplated
in the Lease
December 30, 1999
Page 12
Documents are characterized as a loan, we render no opinion with respect to any
provisions of the Lease Documents which would be applicable with respect to a
lease transaction (including, without limitation, any of the lease remedies set
forth in the Lease such as, but without limitation, any right to terminate the
Lease or to relet the Property). Further, we render no opinion regarding the
treatment for federal or state tax purposes of the transactions in the Lease
Documents.
E. This opinion is based solely on the laws of the State of Georgia in
force and effect on the date hereof, and, notwithstanding any statement is
implication to the contrary, we express no opinion with regard to any matter
which may be governed or purport to be governed, or otherwise affected, by the
laws of any state or jurisdiction other than the State of Georgia. No opinion is
given herein with respect to any property (including, without limitation, the
Property) outside of the State of Georgia which may be the subject of or may be
referenced in the Lease Documents, or with respect to the effect of the Lease
Documents on or with respect to such property. Without limitation of the
foregoing, no opinion is given herein with respect to the conveyance or creation
of any lien or interest in or the exercise of remedies with respect to the
Property.
Any and all opinions rendered by this firm in this opinion letter are
limited to the matters expressly set forth in Paragraphs 1 through 3 hereinabove
following the phrase "we are of the opinion that"; and no opinion is implied or
to be inferred beyond the matters expressly so stated. This opinion is given as
of the date hereof, and we expressly decline any undertaking to revise or update
this opinion subsequent to the date hereof or to advise you of any matter
arising subsequent to the date hereof, which would cause us to modify this
opinion, in whole or in part. This opinion has been given solely for the benefit
of the addressee hereof, and no other person or entity shall be entitled to rely
hereon without the express written consent of this firm. This opinion is given
solely with respect to the transaction referred to hereinabove and may not be
relied upon by any person or entity except with respect to that particular
transaction. In addition, without first obtaining the express written consent of
this firm, the addressee hereof shall not provide this opinion letter, or any
copy or extract hereof, to any other person or entity, including any
governmental unit or agency, except that a copy may be provided to any
regulatory agency or authority having jurisdiction over any of the addressees,
upon request by such agency or authority, or as may be otherwise required by
law.
Very truly yours,
LONG XXXXXXXX & XXXXXX LLP
(LONG XXXXXXXX & XXXXXX LLP)
EQUIFAX
EXHIBIT G-l
(cont.)
Xxxxx X. Xxxxxxxx
December 30, 1999 Corporate Vice President
And General Counsel
Equifax Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
SunTrust Bank, Atlanta (000) 000-0000
P. O. Xxx 0000, XX 000 FAX (000) 000-0000
Xxxxxxx, Xxxxxxx 00000-0000
Prefco VI Limited Partnership
c/o Sun Trust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Long Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
RE: EQUIFAX INC. LEASE TRANSACTION
Ladies and Gentlemen:
I am Corporate Vice President and General Counsel of Equifax Inc., a
Georgia corporation ("Lessee"), and I am rendering this opinion to you at the
request of Lessee.
1. In connection with this opinion, I have examined, or caused other
in-house counsel licensed by the State Bar of Georgia to examine, copies of each
of the following documents:
(1) Master Agreement, dated as of December 30, 1999 (the "Master
Agreement"), among Lessee, Prefco VI Limited Partnership ("Lessor"), and
SunTrust Bank, Atlanta ("Agent");
(2) Lease Agreement, dated as of December 30, 1999 by and between
Lessor and Lessee;
(3) Consent and Agreement of Lessee to Assignment of Leases and Rents
by the Lessor;
(4) UCC Financing Statements to be filed in the States of Georgia and
Florida; and
(5) Operative Guaranty dated December 30, 1999 (the "Guaranty"), from
Lessee in favor of Lessor and Agent.
December 30, 1999
Page 2 of 3
The documents listed in subparagraphs (1) through (5) above are sometimes
collectively referred to in this letter as the "Lease Documents."
2. Acting as such counsel, I have examined, or caused to be examined, the
Lease Documents and those other documents and matters of law that we have deemed
necessary in order to express the opinions set forth below. All references to
the Lease Documents shall be deemed to refer only to the body of those
instruments, exclusive of other instruments referred to or incorporated by
reference in the Lease Documents. In all such examinations, I have assumed with
your permission and without any investigation whatsoever: that the Lease
Documents accurately reflect the complete understanding of the parties with
respect to the transactions contemplated in the Lease Documents, and the rights
and obligations of the parties under the Lease Documents; that the terms and
conditions of the Lease Documents have not been modified, amended or
supplemented, directly or indirectly, by any other agreement or understanding of
the parties or waiver of any of the material provisions of the Lease Documents;
that all documents submitted to us as originals are authentic; that all
signatures on documents (other than the signatures-of-the Lessee on the Lease
Documents) submitted to us are genuine; that all copies of documents submitted
to us as certified or conformed copies, photocopies or telecopies are identical
to the originals; and that all certificates, and all telegraphic and telephonic
confirmations, given by public officials or by third parties referred to in this
letter have been properly given and are accurate.
3. Based on the actions and assumptions set forth above, and in reliance on
these actions and assumptions, and subject to the assumptions, limitations,
qualifications, and exceptions set forth in this letter, I am of the opinion
that:
(1) Lessee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia; and
(2) The execution, delivery and performance of the Lease Documents by
Lessee are within the corporate power of Lessee. Lessee has duly authorized
the execution and delivery of the Lease Documents, and Xxxxxxx Xxxxxx and
Xxxxxxx X. Xxxxxx are authorized to execute and deliver the Lease Documents
on behalf of Lessee; and
(3) The Lease Documents have been duly and validly executed and
delivered by Lessee.
4. This opinion is based solely on the laws of the State of Georgia in
force and effect on the date of this letter, and I express no opinion with
regard to any matter that may be governed or purport to be governed by the laws
of any state or jurisdiction other than the State of Georgia.
December 30, 1999
Page 3 of 3
5. Any and all opinions rendered by me in this letter are limited to the
matters expressly set forth as my "opinion" in subparagraphs (1) through (3) of
Paragraph 3 above, and no opinion is implied or to be inferred beyond those
matters. This opinion is given as of the date indicated at the top of the first
page of this letter, and I expressly decline any undertaking to revise or update
this opinion subsequent to that date, or to advise you of any matter arising
after that date that would cause me to modify this opinion in whole or in part.
This opinion has been given solely for the benefit of the addressees of this
letter, and no other person or entity shall be entitled to rely on this opinion
without my express written consent. In addition, without first obtaining my
express written consent, the addressees shall not provide this opinion letter,
or any copy or extract of this letter, to any other person or entity, including
any governmental unit or agency, except that a copy may be provided to any
regulatory agency or authority having jurisdiction over any of the addressees,
upon request by that regulatory agency or authority, or as may be otherwise
required by law.
Very truly yours,
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Corporate Vice President
and General Counsel
EXHIBIT G-2
to Master Agreement
FORM OF OPINION OF LOCAL COUNSEL FOR LESSEE
__________, 199_
To the Lessor, the Agent and the
Lender as defined in the Master
Agreement hereinafter referred to
Re: Equifax Inc. Lease Transaction
Ladies and Gentlemen:
We have acted as special Florida counsel to Equifax Inc., a Georgia
corporation (the "Lessee"), in connection with the transactions contemplated by
the Master Agreement. We have examined and are familiar with originals of or
copies identified to our satisfaction of (i) the Master Agreement, dated as of
_________________, 1999 (as heretofore amended, the "Master Agreement"), among
Equifax Inc. ("Equifax"), Prefco VI Limited Partnership, as Lessor, the
financial institutions party thereto, as Lenders and SunTrust Bank, Atlanta, as
Agent; and (ii) the other Operative Documents listed on Schedule A hereto
(together with the Master Agreement, the "Subject Documents"). In addition, we
have examined and are familiar with such legal matters as we have deemed
necessary for the purpose of rendering this opinion. Capitalized terms used in
this opinion and not otherwise defined herein shall have the respective meanings
specified in Appendix A to the Master Agreement. This opinion is being furnished
to you at the request of the Lessee pursuant to Section 3.1(a)(xi) of the Master
Agreement, in connection with the Closing Date related to the Leased Property
covered by the Subject Documents.
In rendering this opinion we have assumed: (a) the genuineness of the
signatures on all documents and instruments and the authenticity of all
documents submitted as originals, and the conformity to originals of all
documents submitted as photostatic or certified copies; (b) that each of the
parties to the Subject Documents has all the legal capacity, power and authority
required for it to enter into the Subject Documents to which it is a party, and
to perform its respective obligations thereunder; (c) that all such matters have
received any corporate
or other authorization required by any applicable charter, by-law, law or
regulation; (d) the due execution and delivery of the Subject Documents by each
of the parties thereto; and (e) that there are no agreements between any parties
that would alter the agreements set forth in the Subject Documents. To the
extent that the assumptions in clauses (b) and (c) relate to any laws or
regulations, such assumptions relate only to those laws and regulations as to
which we are not opining herein.
Based upon the foregoing, we are of the opinion that:
1. The Lessee is duly qualified as a foreign corporation authorized to do
business in, and is in good standing in, the State of Florida (the "State").
2. Neither the Agent nor any of the Lenders is required under the laws of
the State to qualify as a foreign corporation, foreign trust company or
otherwise in the State, or to file any designation for service of process in the
State, solely as a result of its execution, delivery and performance of the
Subject Documents to which it is a party.
3. Each of the Mortgage, the Lease and the Assignment of Leases and Rents
constitutes the legal, valid and binding obligation of the parties thereto
enforceable against each such party in accordance with the terms thereof, except
as such enforceability may be limited by applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and by general equitable
principles.
4. The Lease is in form sufficient under the laws of the State to demise to
the Lessee a valid leasehold interest in the Leased Property. The Lease, when
recorded with the Recording Office, will have been filed or recorded in all
public offices in the State in which such filing or recording is necessary to
provide constructive notice of the Lease on the Leased Property to third persons
and to establish of record the interest of the Lessor thereunder.
5. If the transactions as provided for in the Lease are characterized as a
loan: (a) the Lease is in form sufficient under the laws of the State to create
a valid lien or security interest in favor of the Lessor in the Leased Property
described therein, and when recorded with _________________ (the "Recording
Office"), will have been filed or recorded in all public offices in the State in
which such filing or recording is necessary to perfect the interest of the
Lessor thereunder to the extent that such Leased Property constitutes real
estate. The Lease provides the Lessor with all remedies customarily obtained by
lenders in the State in connection with the type of loan and security provided
thereby. The foreclosure of the Lease would not
-2-
restrict, affect or impair the Lessee's liability with respect to the
obligations secured thereby or the Lessor's rights or remedies with respect to
the foreclosure or enforcement of any other security interests or liens securing
such obligations to the extent any deficiency remains unpaid after application
of the proceeds of the foreclosure.
6. The Mortgage and the Assignment of Lease and Rents are in form
sufficient under the laws of the State to create valid liens or security
interests in favor of the Agent in the collateral described therein, and when
recorded with the Recording Office, will have been filed or recorded in all
public offices in the State in which such filing or recording is necessary to
perfect the interest of the Agent thereunder to the extent that such collateral
constitutes real estate. The Mortgage and the Assignment of Lease and Rents
provide the Agent with all remedies customarily obtained by lenders in the State
in connection with the type of loan and security provided for by the Loan
Agreement. The foreclosure of the Mortgage would not restrict, affect or impair
the Lessor's liability with respect to the obligations secured thereby or the
Lender's rights or remedies with respect to the foreclosure or enforcement of
any other security interests or liens securing such obligations to the extent
any deficiency remains unpaid after application of the proceeds of the
foreclosure.
7. The law (statutory or otherwise) of the State does not require a
lienholder to make an election of remedies where such lienholder holds security
interests and liens on both the real and the personal property of a debtor or to
take recourse first or solely against or otherwise exhaust its remedies against
its collateral before otherwise proceeding to enforce against such debtor the
obligations of such debtor. Nothing in the laws of this State will hinder or
prevent enforcement in the State of the obligations of the Lessee or the
Guarantor under any of the Subject Documents to which it is, respectively, a
party.
8. Under the laws of the State the priority of the Mortgage and the Lease
(if the transactions provided for in the Lease are characterized as a loan), to
the extent that such documents secure future advances and are a conveyance of or
create a lien against a real property interest, is determined by the respective
dates on which such documents are recorded.
9. The UCC Financing Statements which are to be recorded or filed within
the State, are in form sufficient under the laws of the State for filing or
recording, and when recorded with the Recorder's Office and the Florida
Secretary of State will have been filed or recorded in all public offices in the
State in which such filing or recording is necessary to perfect the interests of
the Lessor and the Agent in the collateral described
-3-
therein to the extent the same can be perfected by filing or recording in the
State.
10. Neither the execution and delivery of the Subject Documents, nor the
fulfillment of or the compliance with the provisions thereof, by the Lessor, the
Agent and the Lenders, results in a violation of, or contravenes any State
statute, law, rule, code, ordinance or regulation to which the Lessors, the
Agent or the Lender are subject.
11. No approval, consent, or withholding of objection on the part of, or
filing or registration with, any governmental authority or regulatory body in
the State is required for the due execution and delivery of the Subject
Documents by the Lessor, the Agent or the Lenders, or the performance of the
transactions by the Lessor, the Agent or the Lender as contemplated thereby.
12. Except for federal, state and local franchise, withholding and income
taxes, no taxes, fees or other charges imposed by the State, _______________
County or any other local governmental entity are payable by Lessor, the Agent
or the Lender solely as a result of (i) the issuance of the Notes on the date
hereof, (ii) the acquisition by the Lessor of the Leased Property, or (iii)
(except for nominal filing or recording fees payable at the time of filing or
recording) the execution, delivery, recordation or filing (where applicable) of
the Subject Documents and all other instruments delivered in connection with the
transactions contemplated thereby.
13. The provisions in the Subject Documents concerning interest, Yield,
loan fees, late fees, prepayment premiums, default rate of interest and other
charges, including the methods of calculation and payment thereof, are not
usurious under, or otherwise violative of, the laws of the State.
14. Under the laws of the State and local jurisdictions therein, there is
no statutory or regulatory lien in favor of any Governmental Authority for (a)
liability under the State environmental laws or regulations, or (b) damages
(including natural resource damages) arising from, or costs incurred by, such
Governmental Authority in response to the release of Hazardous Material into the
environment.
15. Under the laws of the State and local jurisdictions therein, there are
no statutory or regulatory requirements relating to the transfer of ownership or
operation, sale or foreclosure of the Leased Property which require notification
of the State or the local jurisdiction of such transfer, sale or foreclosure,
certification that there has been no discharge of Hazardous Material or other
substances, or, in the event of a discharge, responsibility of the Lessor, the
Agent or the Lender,
-4-
as appropriate, for the undertaking of remedial measures to alleviate
environmental contamination resulting from such discharge.
We are members of the Bar of the State. The opinions expressed herein are
limited exclusively to the laws of the State and the rules and regulations, if
any, under each of said laws. Certain of the Subject Documents purport to be
governed by laws of states other than the State. With your permission, we have
assumed for the purposes of this opinion (contrary to the express provisions
thereof) that such agreements would be governed by and construed and interpreted
in accordance with the laws of the State.
Very truly yours,
-5-
EXHIBIT I
TO MASTER AGREEMENT
PAYMENT DATE NOTICE
PREFCO VI Limited Partnership
c/o Atlantic Financial Group, Ltd.
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
SunTrust Bank, Atlanta
00 Xxxx Xxxxx
Xxxx Xxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Center 127/
Atlanta Corporate Banking
EQUIFAX INC.
Gentlemen and Ladies:
This Payment Date Notice is delivered to you pursuant to Section 2.3(c) of
the Master Agreement (Florida Property), dated as of December 30, 1999 (together
with all amendments, if any, from time to time made thereto, the "Master
Agreement"), among Equifax Inc., a Georgia corporation (the "Lessee"), PREFCO VI
Limited Partnership, as Lessor, Atlantic Financial Group, Ltd. and SunTrust
Bank, Atlanta, as Agent and Lender. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Master Agreement.
The Lessee hereby requests that on ____________, 19/20___,
(1) $___________ of the presently outstanding Funded Amounts
originally made on __________, 19___ [and $__________ of the presently
outstanding Funded Amounts originally made on __________, 19___], and all
presently being maintained as LIBOR Advances,
(2) be continued as,
(3) LIBOR Advances having a Rent Period of ______ months.
The Lessee hereby certifies and warrants that no Potential Event of Default or
Event of Default has occurred and is continuing.
The Lessee 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 __________, _____.
EQUIFAX INC.
By
-------------------------------------
Name Printed:
--------------------------
Title:
---------------------------------
I-2
EXHIBIT J
TO MASTER AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
[As of the commencement date of the Master Agreement,
the form was not prepared per agreement among the parties.]
SCHEDULE 1.1
LEASED PROPERTY
Xxx 0, Xxxxx 0, XXXXXXXXX XXXXXX XXXXXX REPLAT, according to map or plat thereof
recorded in Plat Book 107, page 73, of the public records of Pinellas County,
Florida.
SCHEDULE 2.2
PAYMENT INSTRUCTIONS AND
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 3.5%
Lender Commitment Percentage: 96.5%
Lessor Commitment: $ 811,125.00
Lender Commitment: $22,363,875.00
SCHEDULE 4.100
COMPLIANCE WITH ERISA
None
SCHEDULE 4.1(h)
SUBSIDIARIES
Registrant -- Equifax Inc. (a Georgia corporation).
The Registrant owns, directly or indirectly, 100% of the stock of the following
subsidiaries as of March 20, 2000 (all of which are included in the consolidated
financial statements):
State or
Country of
Name of Subsidiary Incorporation
------------------ --------------------
Acrofax Inc. (1) Canada
CBI Ventures, Inc. (1) Georgia
CCI Group, Plc (10) England
CCI Trace and Investigation Services Ltd. (11) England
Computer Ventures, Inc. (1) Delaware
Credence, Inc. Georgia
Credit Consultants International Ltd. (11) England
Credit Link (U.K.) Ltd. (11) England
Credit Northwest Corporation (1) Washington
Credit Union Card Services, Inc. (8) Wisconsin
Equifax Accounts Receivable Services, Inc.
(owned by Trust) Canada
Equifax Asia Pacific Holdings, Inc. Georgia
Equifax Australia Plc (14) England
Equifax Canada (AFX) Inc. (8) Canada
Equifax Canada Inc. (8) Canada
Equifax Card Services, Inc. (4) Florida
Equifax Card Services (Madison), Inc. (8) Wisconsin
Equifax Card Solutions (18) France
Equifax (Caymen Islands) Ltds. (18) Caymen Islands
Equifax Check Services, Inc. (8) Delaware
Equifax Consumer Services, Inc. Georgia
Equifax Credit Information Services, Inc. Georgia
Equifax Decision Systems, B.V. The Netherlands
Equifax de Mexico Sociedad de Informacion Crediticia,
S.A. (8)(9) Mexico
Equifax de Brasil Ltds. (18) Brazil
Equifax E-Banking Solutions, Inc. (4) Georgia
Equifax Europe Inc. Georgia
Equifax Finance (1), Inc. Georgia
Equifax Finance (2), Inc. Georgia
Equifax Healthcare Information Services, Inc. Georgia
Equifax Holdings (Mexico) Inc. Georgia
Equifax Information Technology, Inc. (1) Georgia
Equifax Investments (Mexico) Inc. Georgia
Equifax Investments (U.S.), Inc. Georgia
Equifax Knowledge Engineering, Inc. Arizona
Equifax Ltd. (14) New Zealand
Equifax Luxembourg S.A. (8) Luxembourg
Equifax Luxembourg (No. 2) S.A. Luxembourg
Equifax Mauritius Private Ltd. (7) Philippines
Equifax Payment Services, Inc. Delaware
Equifax Plc (18) England
Equifax Pty Ltd. (18) Australia
Equifax Properties, Inc. Georgia
Equifax-Rochester, Inc. (1) New York
Equifax Secure, Inc. Georgia
Equifax Secure U.K. Ltd. (28) United Kingdom
Equifax SNC (16) France
Equifax South America, Inc. Georgia
Equifax U.K. Finance Ltd. (21) England
Equifax U.K. Finance (No. 2) (20) England
Equifax Ventures, Inc. Georgia
Financial Institution Benefit Association, Inc. (4) District of Columbia
Financial Insurance Marketing Group, Inc. (4) District of Columbia
First Bankcard Systems, Inc. (4) Georgia
Global Scan Ltd. (17) United Kingdom
Global Scan (USA) Inc. (22) Delaware
High Integrity Systems, Inc. (4) California
Infolink Ltd. (14) England
Light Signatures, Inc. (4) Chile
Messagegram Ltd. (11) Chile
Procard (24) Mississippi
Propago (24) Canada
Stewardship, Inc. (1) Ireland
Talecredit Canada, Inc. (2) Ireland
The Equifax Database Company Ltd. (12) England
The Infocheck Group Ltd. (14) England
Transax France Plc (14) England
Ultimate Business Services Plc (14) England
Ultimate Media Concepts Ltd. (11) England
Viv Ltd. (14) England
(1) Subsidiary of Equifax Credit Information Services, Inc.
(2) Subsidiary of Equifax Canada Inc.
(3) Subsidiary of Acrofax Inc.
(4) Subsidiary of Equifax Payment Services, Inc.
(5) Subsidiary of Equifax Card Services, Inc.
(6) Subsidiary of Equifax Card Services (Madison), Inc.
(7) Subsidiary of Equifax Asia Pacific Holdings, Inc.
(8) Subsidiary of Equifax Holdings (Mexico) Inc.
(9) Subsidiary of Equifax Investments (Mexico) Inc.
(10) Subsidiary of Ultimate Business Services Plc
(11) Subsidiary of CCI Group Plc
(12) Subsidiary of Equifax Europe Inc.
(13) Subsidiary of the Equifax Database Company
(14) Subsidiary of Equifax Plc
(15) Subsidiary of Equifax Australia Plc
(16) Subsidiary of Transax France Plc
(17) Subsidiary of The Infocheck Group Ltd.
(18) Subsidiary of Equifax South America, Inc.
(19) Subsidiary of Equifax de Brasil Holdings, Ltda.
(20) Subsidiary of Equifax Luxembourg (No. 2) S.A.
(21) Subsidiary of Equifax Luxembourg S.A.
(22) Subsidiary of Global Scan Ltd.
(23) Subsidiary of Equifax Secure, Inc.
(24) Subsidiary of Equifax de Chile, S.A.
Registrant's subsidiary Equifax Asia Pacific Holdings, Inc. owns 100% of the
stock of Equifax Mauritius Private Ltd. which owns 50% of the stock of Equifax
Venture Infotek Ltd. (India).
Registrant's subsidiary Equifax Europe Inc. owns 49% of the stock of Precision
Marketing Information Ltd. (Ireland) and 58% of the stock of Equifax Iberica,
S.A. (Spain). Equifax Iberica S.A., owns 95% of the stock of ASNEF-Equifax
Servicios de Informacion de Credito, S.L. (Spain); 100% of the stock of Dicodi,
S.A. (Spain); 100% of the stock of Informacion Tecnica Del Credito S.L. (Spain);
100% of the stock of Via Ejecutiva S.A. (Spain); and owns 50% of the stock of
Credinformacoes, Informacoes de Credito, LDA (Portugal), along with Equifax
Decision Systems, B.V., wholly-owned subsidiary of Equifax Inc., which owns 25%.
Registrant's subsidiary Equifax South America, Inc. owns 66% of the stock of
Organisacion Veraz S.A. (Argentina) and 99% of the stock of Equifax de Chile,
S.A. (Chile). Equifax de Chile, S.A. owns 100% of the stock of Dicom, S.A.
(Chile) which owns 100% of the stock of Cobranza Integral S.A. (Chile); 51% of
the stock of Dicom CentroAmerica (El Salvador); 51% of the stock of InfoCorp
S.A. (Peru); and 100% of the stock of Equifax Peru Srl. Registrant's subsidiary
Equifax de Brasil Ltda. owns 80% of the stock of Equifax de Brasil Ltda. (SCI);
59.336% of the stock of Xxxxxx - Solucoes ern Maios de Pagamento Ltda. (Brazil);
and 51% of the stock of Partech Ltda.
Registrant's subsidiary Equifax Plc owns 51% of the stock of Equifax Card
Solutions Ltd. (England).
Schedule 4.1(n)
Environmental Matters
No properties have been identified on any current or proposed National
Priorities List under 40 C.F.R. Section 300, CERCLIS list, or any list arising
from state statutes similar to CERCLA.
Two buried diesel tanks are located at the Equifax Payment Services site in
Tampa, Florida. These tanks have been inspected by the EPA and found not to be
in violation of EPA laws.
Each of Lessees and each of the Subsidiaries have procured all Environmental
Authorizations necessary for the conduct of the business, and is in compliance
with all Environmental Requirements in connection with the operation of the
Properties and each of Lessees and each of the Consolidated Subsidiary's
respective businesses, except in such instances where such failure of compliance
would not have a Material Adverse Effect.
Any particular matter disclosed in the environmental reports delivered by or on
behalf or Lessee in connection with this Master Agreement or any Operative
Documents.
Schedule 4.1(o)
Capital Stock
None.
SCHEDULE 5.12
HAZARDOUS MATERIALS
None
Schedule 5.18
Liens existing on the date of this Agreement are as follows:
1. Liens constituting capitalized computer equipment leases of The Infocheck
Group Limited, as debtor, securing pounds sterling (pound)27,733 British
pounds sterling.
2. Liens constituting capitalized telephone and computer equipment leases of
Equifax Plc, as debtor, securing (pound)483,846 British pounds sterling.
================================================================================
LOAN AGREEMENT
Dated as of December 30, 1999
among
PREFCO VI LIMITED PARTNERSHIP,
as Lessor and Borrower,
the financial institutions party hereto,
as Lenders
and
SUNTRUST BANK, ATLANTA,
as Agent
================================================================================
(Equifax Inc. Florida Property)
TABLE OF CONTENTS
Page
----
SECTION 1 DEFINITIONS; INTERPRETATION.................................... 1
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT OF
LOANS................................................................. 1
SECTION 2.1 Commitment................................................ 1
SECTION 2.2 Notes..................................................... 1
SECTION 2.3 Scheduled Principal Repayment............................. 2
SECTION 2.4 Interest.................................................. 2
SECTION 2.5 Prepayment................................................ 3
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS IN
RESPECT OF LEASE AND LEASED PROPERTY............................... 3
SECTION 3.1 Distribution and Application of Rent Payments............. 3
SECTION 3.2 Distribution and Application of Purchase Payment.......... 3
SECTION 3.3 Distribution and Application to Funding Party
Balances of Lessee Payment of Recourse Deficiency Amount Upon
Exercise of Remarketing Option..................................... 3
SECTION 3.4 Distribution and Application to Funding Party Balance of
Remarketing Proceeds of Leased Property............................ 4
SECTION 3.5 Distribution and Application of Payments Received When an
Event of Default Exists or Has Ceased to Exist Following Rejection
of a Lease......................................................... 4
SECTION 3.6 Distribution of Other Payments............................ 5
SECTION 3.7 Timing of Agent Distributions............................. 5
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER THE LEASE AND OPERATIVE
GUARANTY.............................................................. 6
SECTION 4.1 Covenant of Lessor........................................ 6
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease
and Operative Guaranty Obligations and Certain Proceeds of Leased
Property Only...................................................... 6
SECTION 4.3 Exercise of Remedies Under the Lease and Operative
Guaranty........................................................... 7
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES............................... 8
SECTION 5.1 Loan Events of Default.................................... 8
SECTION 5.2 Loan Event of Default; Remedies........................... 9
SECTION 6 THE AGENT...................................................... 10
SECTION 6.1 Appointment............................................... 10
-i-
SECTION 6.2 Delegation of Duties...................................... 10
SECTION 6.3 Exculpatory Provisions.................................... 10
SECTION 6.4 Reliance by Agent......................................... 11
SECTION 6.5 Notice of Default......................................... 11
SECTION 6.6 Non-Reliance on Agent and Other Lenders................... 12
SECTION 6.7 Indemnification........................................... 12
SECTION 6.8 Agent in Its Individual Capacity.......................... 13
SECTION 6.9 Successor Agent........................................... 13
SECTION 7 MISCELLANEOUS.................................................. 14
SECTION 7.1 Amendments and Waivers.................................... 14
SECTION 7.2 Notices................................................... 14
SECTION 7.3 No Waiver; Cumulative Remedies............................ 14
SECTION 7.4 Successors and Assigns.................................... 14
SECTION 7.5 Counterparts.............................................. 14
SECTION 7.6 GOVERNING LAW............................................. 14
SECTION 7.7 Survival and Termination of Agreement..................... 14
SECTION 7.8 Entire Agreement.......................................... 15
SECTION 7.9 Severability.............................................. 15
APPENDIX A Definitions and Interpretation
EXHIBITS
EXHIBIT A-1 Form of A Note
EXHIBIT A-2 Form of B Note
-ii-
THIS LOAN AGREEMENT (as it may be amended or modified from time to time in
accordance with the provisions hereof, this "Loan Agreement") dated as of
December 30, 1999 is between PREFCO VI LIMITED PARTNERSHIP, a Connecticut
general partnership, as Lessor and Borrower (the "Lessor"); SUNTRUST BANK,
ATLANTA and the other financial institutions which may from time to time become
party hereto as lenders (the "Lenders") and SUNTRUST BANK, ATLANTA, a Georgia
banking corporation as agent for the Lenders (the "Agent").
PRELIMINARY STATEMENT
In accordance with the terms and provisions of the Master Agreement, the
Lease, this Loan Agreement and the other Operative Documents, (i) the Lessor
contemplates owning and leasing the Leased Property to the Lessee, (ii) the
Lessor wishes to obtain, and the Lenders are willing to provide, financing to
the Lessor, which financing will be secured by the Leased Property, and (iv) the
Lessee is willing to provide its Operative Guaranty to the Agent and the Funding
Parties.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and not
defined herein shall have the meanings assigned thereto in Appendix A hereto for
all purposes hereof; and the rules of interpretation set forth in Appendix A
hereto shall apply to this Loan Agreement.
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT OF
LOANS
SECTION 2.1 Commitment. Subject to the terms and conditions hereof and of
the Master Agreement, each Lender agrees to make term loans to the Lessor
("Loans") on the Closing Date, in the amounts required under Section 2.2 of the
Master Agreement. Each such Loan shall consist of an A Loan in the amount of
such Lender's Commitment Percentage of the A Percentage of the aggregate amount
to be funded by the Funding Parties on such date and a B Loan in the amount of
such Lender's Commitment Percentage of the B Percentage of the aggregate amount
to be funded by the Funding Parties on such date.
SECTION 2.2 Notes. The A Loans made by each Lender to the Lessor shall be
evidenced by a note of the Lessor (an "A Note"), substantially in the form of
Exhibit A-1 with appropriate insertions, and the B Loans made by each Lender to
the Lessor
shall be evidenced by a note of the Lessor (a "B Note") substantially in the
form of Exhibit A-2 with appropriate insertions, each duly executed by the
Lessor and payable to the order of such Lender and in a principal amount equal
to such Lender's Commitment Percentage of the A Percentage of the aggregate
Commitments of the Funding Parties and the B Percentage of the aggregate
Commitments of the Funding Parties, respectively (or, if less, the aggregate
unpaid principal amount of all A Loans or B Loans, as the case may be, made by
such Lender to the Lessor). The Notes shall be dated the Closing Date and
delivered to the Agent in accordance with Section 3.1 of the Master Agreement.
Each Lender is hereby authorized to record the date and amount of each Loan made
by such Lender to the Lessor on the Notes, but the failure by such Lender to so
record such Loan shall not affect or impair any obligations with respect
thereto. Each Note shall (i) be stated to mature no later than the Lease
Termination Date and (ii) bear interest on the unpaid principal amount thereof
from time to time outstanding at the applicable interest rate per annum
determined as provided in, and payable as specified in, Section 2.4. Upon the
occurrence of an Event of Default under clause (g) of Article XII of the Lease,
or upon Acceleration as described in Section 4.3(b) hereof, each Note shall
automatically become due and payable in full.
SECTION 2.3 Scheduled Principal Repayment. On the Lease Termination Date,
the Lessor shall pay the aggregate unpaid principal amount of all Loans as of
such date.
SECTION 2.4 Interest. (a) Each Loan shall bear interest during the initial
Rent Period ending January 14, 2000 at a rate per anum equal to the sum of the
Adjusted London Interbank Offered Rate for 30-day periods plus 0.475% computed
using the actual number of days elapsed and a 360 day year and each subsequent
Rent Period at a rate per annum equal to the sum of the Adjusted London
Interbank Offered Rate for such Rent Period plus 0.475%, computed using the
actual number of days elapsed and a 360 day year.
(b) If all or a portion of the principal amount of or interest on the Loans
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall, without limiting the rights of the
Lenders under Section 5, bear interest at the Overdue Rate, in each case from
the date of nonpayment until paid in full (as well after as before judgment).
(c) Following the date each Loan is made, interest on such Loan shall be
payable in arrears on each Payment Date with respect thereto.
2
SECTION 2.5 Prepayment. Except in conjunction with a payment by the Lessee
of the Lease Balance pursuant to the terms of the Lease, the Lessor shall have
no right to prepay the Loans.
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS IN
RESPECT OF LEASE AND LEASED PROPERTY
SECTION 3.1 Distribution and Application of Rent Payments.
(a) Basic Rent. Each payment of Basic Rent (and any payment of interest on
overdue installments of Basic Rent) received by the Agent shall be distributed
first, pro rata to the Lenders to be applied to the amounts of accrued and
unpaid interest (including overdue interest) on the Loans and second, to the
Lessor to be applied to accrued and unpaid Yield (including overdue Yield) on
the Lessor's Invested Amounts.
(b) Supplemental Rent. Each payment of Supplemental Rent received by the
Agent shall be paid to or upon the order of the Person owed the same.
SECTION 3.2 Distribution and Application of Purchase Payment. The payment
by the Lessee of:
(a) the purchase price for a consummated sale of the Leased Property
received by the Agent in connection with the Lessee's exercise of the
Purchase Option under Section 14.1 of the Lease, or
(b) the Lessee's compliance with its obligation to purchase the Leased
Property in accordance with Section 14.2 or 14.3 of the Lease, or
(c) the payment by the Lessee to Agent of the Lease Balance in
accordance with Section 10.1 or Section 10.2 of the Lease, shall be
distributed by Agent as promptly as possible first, to the Lenders, pro
rata in accordance with, and for application to, their respective Funding
Party Balances and second, to the Lessor for application to its Funding
Party Balance.
SECTION 3.3 Distribution and Application to Funding Party Balances of
Lessee Payment of Recourse Deficiency Amount Upon Exercise of Remarketing
Option. The payment by the Lessee of the Recourse Deficiency Amounts to the
Agent on the Lease Termination Date in accordance with Section 14.6 or 14.7 of
the Lease upon the Lessee's exercise of the Remarketing Option, shall be applied
by the Agent to the accrued and unpaid interest on, and the outstanding
principal of, the A Loans.
3
SECTION 3.4 Distribution and Application to Funding Party Balance of
Remarketing Proceeds of Leased Property. Any payments received by the Lessor as
proceeds from the sale of the Leased Property sold pursuant to the Lessee's
exercise of the Remarketing Option pursuant to Section 14.6 or 14.7 of the
Lease, shall be distributed by the Lessor as promptly as possible in the
following order of priority:
first, to the Lenders pro rata for application to their remaining
Funding Party Balances, an amount equal to their Funding Party Balances;
and
second, to the Lessor for application to its Funding Party Balance;
and
third, (i) if sold by the Lessee pursuant to Section 14.6 of the
Lease, to the Lessee, the excess, if any, and (ii) otherwise, to the
Lessor.
SECTION 3.5 Distribution and Application of Payments Received
When an Event of Default Exists or Has Ceased to Exist Following Rejection of a
Lease.
(a) Proceeds of Leased Property. Any payments received by the Lessor or the
Agent when an Event of Default exists (or has ceased to exist by reason of a
rejection of the Lease in a proceeding with respect to the Lessee described in
Article XII(k) of the Lease), as
(i) proceeds from the sale of the Leased Property sold pursuant to the
exercise of the Lessor's remedies pursuant to Article XIII of the Lease, or
(ii) proceeds of any amounts from any insurer or any Governmental
Authority in connection with an Event of Loss or an Event of Taking
shall if received by the Lessor be paid to the Agent as promptly as possible,
and shall be distributed or applied in the following order of priority prior to
the Release Date:
first, to the Agent for any amounts expended by it in connection with
the Leased Property or the Operative Documents and not previously
reimbursed to it;
second, to the Lenders pro rata for application to their Funding Party
Balances, an amount equal to such Funding Party Balances;
third, to the Lessor for application to its Funding Party Balance; and
4
fourth, to the Lessee or the Person or Persons otherwise legally
entitled thereto, the excess, if any; and
on and after such Release Date such amounts shall be paid over to the Lessor and
shall be distributed by the Lessor, first to the Lessor for application to any
amounts owed to it, and second to the Lessee or the Person or Persons otherwise
legally entitled thereto, the excess, if any.
(b) Proceeds of Recoveries from Lessee and Guarantor. Any received by any
Funding Party when an Event of Default exists (or has ceased to exist by reason
of a rejection of the Lease in a proceeding with respect to the Lessee described
in Article XII(k) of the Lease), from
(i) the Lessee as a payment in accordance with a Lease, or
(ii) the Guarantor as a payment in accordance with the Operative
Guaranty, including, without limitation, any payment made by the Guarantor
in satisfaction of the guaranty of payment of the Notes pursuant to the
Operative Guaranty,
shall be paid to the Agent as promptly as possible, and shall then be
distributed as applied by the Agent as promptly as possible in the order of
priority set forth in paragraph (a) above.
SECTION 3.6 Distribution of Other Payments. All payments under Section 7.11
of the Master Agreement shall be made first, to the Lenders, pro rata, until
their Funding Party Balances have been paid in full, and second, to the Lessor
who shall be entitled to retain all such remaining amounts. Except as otherwise
provided in this Section 3, any payment received by the Lessor which is to be
paid to Agent pursuant hereto or for which provision as to the application
thereof is made in an Operative Document but not elsewhere in this Section 3
shall, if received by the Lessor, be paid forthwith to the Agent and when
received shall be distributed forthwith by the Agent to the Person and for the
purpose for which such payment was made in accordance with the terms of such
Operative Document.
SECTION 3.7 Timing of Agent Distributions. Payments received by the Agent
in immediately available funds before 12:00 p.m. (noon), Atlanta, Georgia time,
on any Business Day shall be distributed to the Funding Parties in accordance
with and to the extent provided in this Section 3 on such Business Day. Payments
received by the Agent in immediately available funds after 12:00 p.m. (noon),
Atlanta, Georgia time shall be
5
distributed to the Funding Parties in accordance with and to the extent provided
in this Section 3 on the next Business Day.
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER THE LEASE AND OPERATIVE
GUARANTY
SECTION 4.1 Covenant of Lessor. So long as any Loan remains outstanding and
unpaid or any other amount is owing to any Lender with respect to its Funding
Party Balances, subject to Section 4.2, the Lessor will promptly pay all amounts
payable by it under this Loan Agreement and the Notes issued by it in accordance
with the terms hereof and thereof and shall duly perform each of its obligations
under this Loan Agreement and the Notes. The Lessor agrees to provide to the
Agent a copy of each estoppel certificate that the Lessor proposes to deliver
pursuant to Section 17.13 of the Lease at least five (5) days prior to such
delivery and to make any corrections thereto reasonably requested by the Agent
prior to such delivery. The Lessor shall keep the Leased Property free and clear
of all Lessor Liens. The Lessor shall not reject any sale of the Leased Property
pursuant to Section 14.6 of the Lease unless all of the Loans have been paid in
full or the Lenders consent to such rejection. In the event that the Lenders
reject any sale of the Leased Property pursuant to Section 14.6 of the Lease,
the Lessor agrees to take such action as the Lenders reasonably request to
effect a sale or other disposition of the Leased Property, provided that the
Lessor shall not be required to expend its own funds in connection with such
sale or disposition.
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease and
Operative Guaranty Obligations and Certain Proceeds of Leased Property Only. All
payments to be made by the Lessor in respect of the Loans, the Notes and this
Loan Agreement shall be made only from certain payments received under the Lease
and the Operative Guaranty and certain proceeds of the Leased Property and only
to the extent that the Lessor or the Agent shall have received sufficient
payments from such sources to make payments in respect of the Loans in
accordance with Section 3. Each Lender agrees that it will look solely to such
sources of payments to the extent available for distribution to such Lender as
herein provided and that neither the Lessor nor the Agent is or shall be
personally liable to any Lender for any amount payable hereunder or under any
Note. Nothing in this Loan Agreement, the Notes or any other Operative Document
shall be construed as creating any liability (other than for willful misconduct,
gross negligence, misrepresentation or breach of contract (other than the
failure to make payments in respect of the Loans)) of the Lessor individually to
pay any sum or to perform any covenant, either express or implied, in this Loan
Agreement, the Notes or any other Operative Documents (all such liability, if
any, being expressly waived by each Lender) and
6
that each Lender, on behalf of itself and its successors and assigns, agrees in
the case of any liability of the Lessor hereunder or thereunder (except for such
liability attributable to its willful misconduct, gross negligence,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Loans)) that it will look solely to those certain payments
received under the Lease and the Operative Guaranty and those certain proceeds
of the Leased Property, provided, however, that the Lessor in its individual
capacity shall in any event be liable with respect to (i) the removal of
Lessor's Liens or involving its gross negligence, willful misconduct,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Loans) or (ii) failure to turn over payments the Lessor has
received in accordance with Section 3; and provided further that the foregoing
exculpation of the Lessor shall not be deemed to be exculpations of the Lessee,
the Guarantor or any other Person.
SECTION 4.3 Exercise of Remedies Under the Lease and Operative Guaranty.
(a) Event of Default. With respect to any Potential Event of Default as to
which notice thereof by the Lessor to the Lessee is a requirement to cause such
Potential Event of Default to become an Event of Default, the Lessor may at any
time in its discretion give such notice, provided that the Lessor agrees to give
such notice to such Lessee promptly upon receipt of a written request by any
Lender or the Agent.
(b) Acceleration of Lease Balance. When an Event of Default exists, the
Lessor, upon the direction of the Required Funding Parties, shall exercise
remedies under Article XIII of the Lease and the Operative Guaranty to demand
payment in full of the Lease Balances by the Lessee or the Guarantor (the
"Acceleration"). Following the Acceleration, the Lessor shall consult with the
Lenders regarding actions to be taken in response to such Event of Default. The
Lessor (1) shall not, without the prior written consent of Required Funding
Parties and (2) shall (subject to the provisions of this Section), if so
directed by Required Lenders, do any of the following: commence eviction or
foreclosure proceedings, or make a demand under the Operative Guaranty, or file
a lawsuit against the Lessee under the Lease, or file a lawsuit against the
Guarantor under the Operative Guaranty, or sell the Leased Property, or exercise
other remedies against the Lessee or the Guarantor under the Operative Documents
in respect of such Event of Default; provided, however, that any payments
received by the Lessor shall be distributed in accordance with Section 3.
Notwithstanding any such consent, direction or approval by the Required Funding
Parties of any such action or omission, the Lessor shall not have any obligation
to follow such direction if the same would, in the
7
Lessor's reasonable judgment, require the Lessor to expend its own funds or
expose the Lessor to liability, expense, loss or damages unless and until the
Lenders advance to the Lessor an amount which is sufficient, in the Lessor's
reasonable judgment, to cover such liability, expense, loss or damage (excluding
the Lessor's pro rata share thereof, if any). Notwithstanding the foregoing, on
and after the Release Date, the Lenders shall have no rights to the Leased
Property or any proceeds thereof, the Lenders shall have no rights to direct or
give consent to any actions with respect to the Leased Property and the proceeds
thereof, the Lessor shall have absolute discretion with respect to such exercise
of remedies with respect to the Leased Property, and the proceeds thereof,
including, without limitation, any foreclosure or sale of the Leased Property,
and the Lessor shall have no liability to the Lenders with respect to the
Lessor's actions or failure to take any action with respect to the Leased
Property.
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES
SECTION 5.1 Loan Events of Default. Each of the following events shall
constitute a Loan Event of Default (whether any such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order, rule
or regulation of any Governmental Authority) and each such Loan Event of Default
shall continue so long as, but only as long as, it shall not have been remedied:
(a) Lessor shall fail to distribute in accordance with the provisions
of Section 3 any amount received by the Lessor pursuant to the Lease, the
Operative Guaranty or the Master Agreement within two (2) Business Days of
receipt thereof if and to the extent that the Agent or the Lenders are
entitled to such amount or a portion thereof; or
(b) the Lessor shall fail to pay to the Agent, within two (2) Business
Days of the Lessor's receipt thereof, any amount which the Lessee or the
Guarantor is required, pursuant to the Operative Documents, to pay to the
Agent but erroneously pays to the Lessor; or
(c) failure by the Lessor to perform in any material respect any other
covenant or condition herein or in any other Operative Document to which
the Lessor is a party, which failure shall continue unremedied for thirty
(30) days after receipt by the Lessor of written notice thereof from the
Agent or any Lender; or
(d) any representation or warranty of the Lessor contained in any
Operative Document or in any certificate
8
required to be delivered thereunder shall prove to have been incorrect in a
material respect when made and shall not have been cured within thirty (30)
days of receipt by the Lessor of written notice thereof from the Agent or
any Lender; or
(e) the Lessor or any General Partner shall become bankrupt or make an
assignment for the benefit of creditors or consent to the appointment of a
trustee or receiver; or a trustee or a receiver shall be appointed for the
Lessor or any General Partner or for substantially all of its property
without its consent and shall not be dismissed or stayed within a period of
sixty (60) days; or bankruptcy, reorganization or insolvency proceedings
shall be instituted by or against the Lessor or any General Partner and, if
instituted against the Lessor or any General Partner, shall not be
dismissed or stayed for a period of sixty (60) days; or
(f) any Event of Default under the Lease shall occur and be
continuing.
SECTION 5.2 Loan Event of Default; Remedies.
(a) Upon the occurrence of a Loan Event of Default hereunder, (i) if such
event is a Loan Event of Default specified in clause (e) of Section 5.1 with
respect to the Lessor, automatically the outstanding principal of, and accrued
interest on, the Loans shall be immediately due and payable, and (ii) if such
event is any other Loan Event of Default, upon written request of the Required
Lenders, the Agent shall, by notice of default to the Lessor, declare the
outstanding principal of, and accrued interest on, the Loans to be immediately
due and payable, whereupon the outstanding principal of, and accrued interest
on, the Loans shall become immediately due and payable.
(b) When a Loan Event of Default exists, the Agent may, and upon the
written instructions of the Required Lenders shall, exercise any or all of the
rights and powers and pursue any and all of the remedies available to it
hereunder, under the Notes, the Mortgage and the Assignment of Lease and Rents
and shall have and may exercise any and all rights and remedies available under
the Uniform Commercial Code or any provision of law. When a Loan Event of
Default exists, the Agent may, and upon the written instructions of the Required
Lenders shall, have the right to exercise all rights of the Lessor under the
Lease pursuant to the terms and in the manner provided for in the Mortgage and
the Assignment of Lease and Rents.
(c) Except as expressly provided above, no remedy under this Section 5.2 is
intended to be exclusive, but each shall be cumulative and in addition to any
other remedy provided under
9
this Section 5.2 or under the other Operative Documents or otherwise available
at law or in equity. The exercise by the Agent or any Lender of any one or more
of such remedies shall not preclude the simultaneous or later exercise of any
other remedy or remedies. No express or implied waiver by the Agent or any
Lender of any Loan Event of Default shall in any way be, or be construed to be,
a waiver of any future or subsequent Loan Event of Default. The failure or delay
of the Agent or any Lender in exercising any rights granted it hereunder upon
any occurrence of any of the contingencies set forth herein shall not constitute
a waiver of any such right upon the continuation or recurrence of any such
contingencies or similar contingencies and any single or partial exercise of any
particular right by the Agent or any Lender shall not exhaust the same or
constitute a waiver of any other right provided herein.
SECTION 6 THE AGENT
SECTION 6.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Loan Agreement and the
other Operative Documents, and each such Lender irrevocably authorizes the
Agent, in such capacity, to take such action on its behalf under the provisions
of this Loan Agreement and the other Operative Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Loan Agreement and the other Operative Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Loan Agreement, the Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Operative Document or otherwise exist against the
Agent.
SECTION 6.2 Delegation of Duties. The Agent may execute any of its duties
under this Loan Agreement and the other Operative Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in- fact selected by it with
reasonable care.
SECTION 6.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys- in-fact or Affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Loan Agreement or any other Operative
Document (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of
10
the Lenders for any recitals, statements, representations or warranties made by
the Lessor, the Guarantor or the Lessee or any officer thereof contained in this
Loan Agreement or any other Operative Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Loan Agreement or any other Operative
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Loan Agreement or any other Operative Document or for any
failure of the Lessor, the Guarantor or the Lessee to perform its obligations
hereunder or thereunder. The Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Loan Agreement or any other
Operative Document, or to inspect the properties, books or records of the
Lessor, the Guarantor or the Lessee.
SECTION 6.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Lessor, the Guarantor or the Lessee), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent. The Agent shall be fully justified in failing or refusing
to take any action under this Loan Agreement or any other Operative Document
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Funding Parties against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Loan Agreement and the other Operative Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
SECTION 6.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Loan Potential Event of Default or
Loan Event of Default hereunder unless the Agent has received notice from a
Lender referring to this Loan Agreement, describing such Loan Potential Event of
Default or Loan Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such
11
a notice, the Agent shall give notice thereof to the Lenders. The Agent shall
take such action with respect to such Loan Potential Event of Default or Loan
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Loan Potential Event of Default or Loan
Event of Default as it shall deem advisable in the best interests of the
Lenders.
SECTION 6.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Lessor, the Guarantor or the Lessee, shall be
deemed to constitute any representation or warranty by the Agent to any Lender.
Each Lender represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Lessor, the Guarantor and the Lessee and
made its own decision to make its Loans hereunder and enter into this Loan
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Loan Agreement and the other Operative Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Lessor, the Guarantor and the Lessee. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Lessor, the Guarantor or the Lessee which may come into the possession of
the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
SECTION 6.7 Indemnification. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Lessee or Guarantor
and without limiting the obligation of the Lessee or Guarantor to do so),
ratably according to the percentage each Lender's Loans bears to the total Loans
of all of the Lenders on the date on which indemnification is sought under this
Section 6.7, from and
12
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Commitments,
this Loan Agreement, any of the other Operative Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. The
agreements in this Section 6.7 shall survive the payment of the Notes and all
other amounts payable hereunder.
SECTION 6.8 Agent in Its Individual Capacity. The Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Lessor, the Guarantor or the Lessee as though the Agent were
not the Agent hereunder and under the other Operative Documents. With respect to
Loans made or renewed by it and any Note issued to it, the Agent shall have the
same rights and powers under this Loan Agreement and the other Operative
Documents as any Lender and may exercise the same as though it were not the
Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity. Each Lender acknowledges that the Agent in its individual
capacity has had and continues to have other business relations and transactions
with the Lessee.
SECTION 6.9 Successor Agent. The Agent may resign as Agent upon 20 days'
notice to the Lenders. If the Agent shall resign as Agent under this Loan
Agreement and the other Operative Documents, then the Required Lenders shall
appoint a successor agent for the Lenders, which successor agent shall be a
commercial bank organized under the laws of the United States of America or any
State thereof or under the laws of another country which is doing business in
the United States of America and having a combined capital, surplus and
undivided profits of at least $100,000,000, whereupon such successor agent shall
succeed to the rights, powers and duties of the Agent, and the term "Agent"
shall mean such successor agent effective upon such appointment and approval,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Loan Agreement or any holders of the Notes. After any
retiring Agent's resignation as Agent, all of the provisions of this Section 6
shall inure to its benefit as to any
13
actions taken or omitted to be taken by it while it was Agent under this Loan
Agreement and the other Operative Documents.
SECTION 7 MISCELLANEOUS
SECTION 7.1 Amendments and Waivers. Neither this Loan Agreement, any Note,
nor any terms hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of Section 8.4 of the Master Agreement.
SECTION 7.2 Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be given in accordance with Section 8.2 of the Master Agreement.
SECTION 7.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Lender, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
SECTION 7.4 Successors and Assigns. This Loan Agreement shall be binding
upon and inure to the benefit of the Lessor, the Agent, the Lenders, all future
holders of the Notes and their respective successors and permitted assigns.
SECTION 7.5 Counterparts. This Loan Agreement may be executed by one or
more of the parties to this Loan Agreement on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. A set of the counterparts of this Loan
Agreement signed by all the parties hereto shall be lodged with the Lessor and
the Agent.
SECTION 7.6 GOVERNING LAW. THIS LOAN AGREEMENT AND THE NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS LOAN AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF GEORGIA.
SECTION 7.7 Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Loan Agreement, and the Notes and
shall continue in full force and effect so long as any Note or any amount
14
payable to any Lender under or in connection with this Loan Agreement or the
Notes is unpaid, at which time this Loan Agreement shall terminate.
SECTION 7.8 Entire Agreement. This Loan Agreement and the other Operative
Documents sets forth the entire agreement of the parties hereto with respect to
its subject matter, and supersedes all previous understandings, written or oral,
with respect thereto.
SECTION 7.9 Severability. Any provision of this Loan Agreement or of the
Notes which is prohibited, unenforceable or not authorized in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of any such provision in any other jurisdiction.
15
IN WITNESS THEREOF, the parties hereto have caused this Loan Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
SUNTRUST BANK, ATLANTA, as Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
FLORIDA LOAN AGREEMENT
S-1
PREFCO VI LIMITED PARTNERSHIP, as
Lessor and Borrower
By: AFG PREFCO GP, LLC, a Texas
limited liability company, as
general partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxxx
President
FLORIDA LOAN AGREEMENT
S-2
SUNTRUST BANK, ATLANTA, as a
Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
FLORIDA LOAN AGREEMENT
S-3
EXHIBIT A-l
A NOTE
Atlanta, Georgia
$18,076,500.00 December 30, 1999
FOR VALUE RECEIVED, the undersigned, PREFCO VI LIMITED PARTNERSHIP
("Lessor") promises to pay to the order of SUNTRUST BANK, ATLANTA (the "Lender")
at the office of the Agent at SunTrust Bank, Atlanta, 00 Xxxx Xxxxx, Xxxxxxx,
Xxxxxxx 00000 or such other address as the holder hereof shall have previously
designated in writing to the Lessor, the aggregate unpaid principal amount of
all A Loans made by the Lender to, or for the benefit of, the Lessor, as
recorded either on the grid attached to this Note or in the records of the
Lender (and such recordation shall constitute prima facie evidence of the
information so recorded; provided, however, that the failure to make any such
recordation shall not in any way affect the Lessor's obligation to repay this
Note). The principal amount of each A Loan evidenced hereby shall be payable on
or prior to the Lease Termination Date as provided in the Loan Agreement.
The Lessor further promises to pay interest on the unpaid principal amount
of this Note from time to time outstanding, payable as provided in the Loan
Agreement, at the rates per annum provided in the Loan Agreement; provided,
however, that such interest rate shall not at any time exceed the maximum rate
permitted by law. All payments of principal of and interest on this Note shall
be payable in lawful currency of the United States of America at the office of
the Agent as provided above or such other address as the holder hereof shall
have designated to the Lessor, in immediately available funds.
This Note is one of the Notes referred to in that certain Loan Agreement,
dated as of December 30, 1999, among the Lessor, the Lender and the other
lenders from time to time party thereto, and SunTrust Bank, Atlanta, as Agent
(the "Agent") for such lenders (as it may be amended or modified from time to
time, herein called the "Loan Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Loan Agreement. This Note is secured pursuant to the other Loan Documents from
the Lessor to the Agent referred to in the Loan Agreement (including, without
limitation, the Mortgages) and reference is hereby made to the Loan Agreement
and such other Loan Documents for a statement of the terms and provisions of
such security.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest, and notice of dishonor, notice
of the existence, creation or nonpayment of all or any of the A Loans and all
other notices whatsoever.
This Note shall be governed by and construed in accordance with the laws of
the State of Georgia, without regard to conflicts of law principles.
ALL PAYMENTS AND OTHER OBLIGATIONS TO BE MADE OR PERFORMED BY THE LESSOR IN
RESPECT OF THE A LOANS AND THIS NOTE SHALL BE MADE ONLY FROM CERTAIN PAYMENTS
RECEIVED
UNDER THE LEASE, THE GUARANTY AGREEMENT AND CERTAIN PROCEEDS OF THE LEASED
PROPERTIES AND ONLY TO THE EXTENT THAT THE LESSOR SHALL HAVE RECEIVED SUFFICIENT
PAYMENTS FROM SUCH SOURCES TO MAKE PAYMENTS IN RESPECT OF THE A LOANS IN
ACCORDANCE WITH AND SUBJECT TO THE PRIORITIES SET FORTH IN THE LOAN AGREEMENT.
THE LENDER AND EACH OTHER HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES
THAT IT WILL LOOK SOLELY TO SUCH SOURCES OF PAYMENTS TO THE EXTENT AVAILABLE FOR
DISTRIBUTION TO THE LENDER OR SUCH OTHER HOLDER AS PROVIDED IN THE LOAN
AGREEMENT AND THAT NEITHER THE LESSOR, NOR ANY OF ITS PARTNERS, NOR THE AGENT IS
OR SHALL BE PERSONALLY LIABLE TO THE LENDER OR SUCH OTHER HOLDER FOR ANY AMOUNT
PAYABLE HEREUNDER OR UNDER THE LOAN AGREEMENT. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, NOTHING IN THIS NOTE SHALL BE CONSTRUED AS CREATING
ANY LIABILITY (OTHER THAN FOR WILLFUL MISCONDUCT, GROSS NEGLIGENCE,
MISREPRESENTATION OR BREACH OF CONTRACT (OTHER THAN THE FAILURE TO MAKE PAYMENTS
IN RESPECT OF THE LOANS)) OF LESSOR INDIVIDUALLY TO PAY ANY SUM OR TO PERFORM
ANY COVENANT, CONDITION, OBLIGATION OR WARRANTY EITHER EXPRESS OR IMPLIED, IN
THIS NOTE (ALL SUCH LIABILITY, IF ANY, BEING EXPRESSLY WAIVED BY THE LENDER AND
EACH OTHER HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF) AND THAT THE LENDER AND
EACH OTHER HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, ON BEHALF OF ITSELF AND
ITS SUCCESSORS AND ASSIGNS, AGREES IN THE CASE OF ANY LIABILITY OF LESSOR
HEREUNDER (OTHER THAN FOR WILLFUL MISCONDUCT, GROSS NEGLIGENCE,
MISREPRESENTATION OR BREACH OF CONTRACT (OTHER THAN THE FAILURE TO MAKE PAYMENTS
IN RESPECT OF THE LOANS)) that it will look solely to those certain payments
received under the Lease, the Guaranty Agreement and those certain proceeds of
the Leased Properties as provided in the Loan Agreement; provided, however, that
Lessor in its individual capacity shall in any event be liable with respect to
(i) the removal of Lessor Liens, (ii) its gross negligence, willful misconduct,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Loans)) or (iii) failure to turn over payments the Lessor has
received in accordance with the Loan Agreement; and provided further that the
foregoing exculpation of the Lessor shall not be deemed to be exculpations of
the Lessee, the Guarantor or any other Person.
-2-
PREFCO VI LIMITED PARTNERSHIP, as Lessor
and Borrower
By: AFG PREFCO GP, LLC, a Texas limited
liability company, as general
partner
By:
------------------------------------
Xxxxxxx X. Xxxxxxxxxx, President
GRID ATTACHED TO A NOTE
DATED DECEMBER 30, 1999 OF
PREFCO VI LIMITED PARTNERSHIP,
AS LESSOR
PAYABLE TO THE ORDER OF SUNTRUST BANK ATLANTA,
AS AGENT
A Loans made by the Lender to the Lessor and payments of principal of such
A Loans.
Outstanding
Amount of Interest Principal Notation
Date Loan Rate Balance Made By
------- --------- -------- ----------- --------
EXHIBIT X-0
X XXXX
Xxxxxxx, Xxxxxxx
$4,287,375.00 December 30, 1999
FOR VALUE RECEIVED, the undersigned, PREFCO VI LIMITED PARTNERSHIP
("Lessor") promises to pay to the order of SUNTRUST BANK, ATLANTA (the "Lender")
at the office of the Agent at SunTrust Bank, Atlanta, 00 Xxxx Xxxxx, Xxxxxxx,
Xxxxxxx 00000 or such other address as the holder hereof shall have previously
designated in writing to the Lessor, the aggregate unpaid principal amount of
all B Loans made by the Lender to, or for the benefit of, the Lessor, as
recorded either on the grid attached to this Note or in the records of the
Lender (and such recordation shall constitute prima facie evidence of the
information so recorded; provided, however, that the failure to make any such
recordation shall not in any way affect the Lessor's obligation to repay this
Note). The principal amount of each B Loan evidenced hereby shall be payable on
or prior to the Lease Termination Date as provided in the Loan Agreement.
The Lessor further promises to pay interest on the unpaid principal amount
of this Note from time to time outstanding, payable as provided in the Loan
Agreement, at the rates per annum provided in the Loan Agreement; provided,
however, that such interest rate shall not at any time exceed the maximum rate
permitted by law. All payments of principal of and interest on this Note shall
be payable in lawful currency of the United States of America at the office of
the Agent as provided above or such other address as the holder hereof shall
have designated to the Lessor, in immediately available funds.
This Note is one of the Notes referred to in that certain Loan Agreement,
dated as of December 30, 1999, among the Lessor, the Lender and the other
lenders from time to time party thereto, and SunTrust Bank. Atlanta, as Agent
(the "Agent") for such lenders (as it may be amended or modified from time to
time, herein called the "Loan Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Loan Agreement. This Note is secured pursuant to the other Loan Documents from
the Lessor to the Agent referred to in the Loan Agreement (including, without
limitation, the Mortgages) and reference is hereby made to the Loan Agreement
and such other Loan Documents for a statement of the terms and provisions of
such security.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest, and notice of dishonor, notice
of the existence, creation or nonpayment of all or any of the B Loans and all
other notices whatsoever.
This Note shall be governed by and construed in accordance with the laws of
the State of Georgia, without regard to conflicts of law principles.
ALL PAYMENTS AND OTHER OBLIGATIONS TO BE MADE OR PERFORMED BY THE LESSOR IN
RESPECT OF THE B LOANS AND THIS NOTE SHALL BE MADE ONLY FROM CERTAIN PAYMENTS
RECEIVED
UNDER THE LEASE, THE GUARANTY AGREEMENT AND CERTAIN PROCEEDS OF THE LEASED
PROPERTIES AND ONLY TO THE EXTENT THAT THE LESSOR SHALL HAVE RECEIVED SUFFICIENT
PAYMENTS FROM SUCH SOURCES TO MAKE PAYMENTS IN RESPECT OF THE B LOANS IN
ACCORDANCE WITH AND SUBJECT TO THE PRIORITIES SET FORTH IN THE LOAN AGREEMENT.
THE LENDER AND EACH OTHER HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES
THAT IT WILL LOOK SOLELY TO SUCH SOURCES OF PAYMENTS TO THE EXTENT AVAILABLE FOR
DISTRIBUTION TO THE LENDER OR SUCH OTHER HOLDER AS PROVIDED IN THE LOAN
AGREEMENT AND THAT NEITHER THE LESSOR, NOR ANY OF ITS PARTNERS, NOR THE AGENT IS
OR SHALL BE PERSONALLY LIABLE TO THE LENDER OR SUCH OTHER HOLDER FOR ANY AMOUNT
PAYABLE HEREUNDER OR UNDER THE LOAN AGREEMENT. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, NOTHING IN THIS NOTE SHALL BE CONSTRUED AS CREATING
ANY LIABILITY (OTHER THAN FOR WILLFUL MISCONDUCT, GROSS NEGLIGENCE,
MISREPRESENTATION OR BREACH OF CONTRACT (OTHER THAN THE FAILURE TO MAKE PAYMENTS
IN RESPECT OF THE LOANS)) OF LESSOR INDIVIDUALLY TO PAY ANY SUM OR TO PERFORM
ANY COVENANT, CONDITION, OBLIGATION OR WARRANTY EITHER EXPRESS OR IMPLIED, IN
THIS NOTE (ALL SUCH LIABILITY, IF ANY, BEING EXPRESSLY WAIVED BY THE LENDER AND
EACH OTHER HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF) AND THAT THE LENDER AND
EACH OTHER HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, ON BEHALF OF ITSELF AND
ITS SUCCESSORS AND ASSIGNS, AGREES IN THE CASE OF ANY LIABILITY OF LESSOR
HEREUNDER (OTHER THAN FOR WILLFUL MISCONDUCT, GROSS NEGLIGENCE,
MISREPRESENTATION OR BREACH OF CONTRACT (OTHER THAN THE FAILURE TO MAKE PAYMENTS
IN RESPECT OF THE LOANS)) that it will look solely to those certain payments
received under the Lease, the Guaranty Agreement and those certain proceeds of
the Leased Properties as provided in the Loan Agreement; provided, however, that
Lessor in its individual capacity shall in any event be liable with respect to
(i) the removal of Lessor Liens, (ii) its gross negligence, willful misconduct,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Loans)) or (iii) failure to turn over payments the Lessor has
received in accordance with the Loan Agreement; and provided further that the
foregoing exculpation of the Lessor shall not be deemed to be exculpations of
the Lessee, the Guarantor or any other Person.
-2-
PREFCO VI LIMITED PARTNERSHIP, as Lessor
and Borrower
By: AFG PREFCO GP, LLC, a Texas limited
liability company, as general partner
By:
-----------------------------------
Xxxxxxx X. Xxxxxxxxxx, President
GRID ATTACHED TO B NOTE
DATED DECEMBER 30, 1999 OF
PREFCO VI LIMITED PARTNERSHIP,
AS LESSOR
PAYABLE TO THE ORDER OF SUNTRUST BANK ATLANTA,
AS AGENT
B Loans made by the Lender to the Lessor and payments of principal of such B
Loans.
Outstanding
Amount of Interest Principal Notation
Date Loan Rate Balance Made By
---- --------- -------- ----------- ---------
================================================================================
OPERATIVE GUARANTY
from
EQUIFAX INC.
Dated as of December 30, 1999
================================================================================
[Florida Property]
TABLE OF CONTENTS
Page
----
SECTION 1. Operative Guaranty .......................................... 1
SECTION 2. Bankruptcy .................................................. 2
SECTION 3. Right of Set-Off ............................................ 3
SECTION 4. Continuing Operative Guaranty ............................... 3
SECTION 5. Reinstatement ............................................... 3
SECTION 6. Certain Actions ............................................. 3
SECTION 7. Application ................................................. 4
SECTION 8. Waiver ...................................................... 4
SECTION 9. Assignment .................................................. 4
SECTION 10. Miscellaneous ............................................... 5
OPERATIVE GUARANTY
THIS OPERATIVE GUARANTY, dated as of December 30, 1999, is made by Equifax
Inc., a Georgia corporation (the "Guarantor").
WITNESSETH:
WHEREAS, the Guarantor as Lessee and Guarantor, PREFCO VI Limited
Partnership as Lessor, Atlantic Financial Group, Ltd., Atlantic Financial
Managers, Inc., and SunTrust Bank, Atlanta, as Agent and Lender, have entered
into that certain Master Agreement (Florida Property), dated as of December 30,
1999 (as it may be modified, amended or restated from time to time as and to the
extent permitted thereby, the "Master Agreement"; and, unless otherwise defined
herein, terms which are defined or defined by reference in the Master Agreement
(including Appendix A thereto) shall have the same meanings when used herein as
such terms have therein); and
WHEREAS, it is a condition precedent to the Funding Parties consummating
the transactions to be consummated on the Closing Date that the Guarantor
execute and deliver this Operative Guaranty; and
WHEREAS, it is in the best interests of the Guarantor that the transactions
contemplated by the Master Agreement be consummated on the Closing Date; and
WHEREAS, this Operative Guaranty, and the execution, delivery and
performance hereof, have been duly authorized by all necessary corporate action
of the Guarantor; and
WHEREAS, this Operative Guaranty is offered by the Guarantor as an
inducement to the Funding Parties to consummate the transactions contemplated in
the Master Agreement, which transactions, if consummated, will be of benefit to
the Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantor, the Guarantor hereby agrees as follows:
SECTION 1. Operative Guaranty. The Guarantor hereby unconditionally
guarantees the full and prompt payment when due, whether by acceleration or
otherwise, and at all times thereafter, and the full and prompt performance, of
all of the Liabilities (as hereinafter defined), including interest and earnings
on any such Liabilities whether accruing before or after any bankruptcy or
insolvency case or proceeding involving the Guarantor or any other Person and,
if interest or earnings on any portion of such obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding,
including such interest and yield as would have accrued on any such portion of
such obligations if such case or proceeding had not commenced, and further
agrees to pay all reasonable expenses (including reasonable attorneys' fees and
legal expenses actually incurred) actually paid or incurred by each of the
Funding Parties in endeavoring to collect the Liabilities, or any part thereof,
and in enforcing this Operative Guaranty. The term "Liabilities", as used
herein, shall mean all of the following, in each case howsoever created, arising
or evidenced, whether direct or indirect, joint or several, absolute or
contingent, or now or hereafter existing, or due or to become due: (i) all
amounts payable by the Lessee under the Lease (including, without limitation,
Basic Rent, Supplemental Rent and Recourse Deficiency Amounts), the Master
Agreement or any other Operative Document, and (ii) all principal of the Notes
and interest accrued thereon, Loans, accrued Yield and all additional amounts
and other sums at any time due and owing, and required to be paid, to the
Funding Parties under the terms of the Master Agreement, the Loan Agreement, the
Assignment of Lease and Rent, the Mortgage, the Notes or any other Operative
Document; provided, however, that whether or not a Loan Event of Default exists
that is not an Event of Default under the Lease, the Guarantor will not be
obligated to pay under this Operative Guaranty any amounts greater or earlier
than the Lessee would have had to pay, under the Lease, the Master Agreement and
the other Operative Documents assuming that such documents were enforced in
accordance with their terms (and without giving effect to any discharge or
limitation thereon resulting or arising by reason of the bankruptcy or
insolvency of the Lessee), plus all actual and reasonable costs of enforcing
this Operative Guaranty.
By way of extension but not in limitation of any of its other obligations
hereunder, the Guarantor stipulates and agrees that in the event any foreclosure
proceedings are commenced and result in the entering of a foreclosure judgment,
any such foreclosure judgment, to the extent related to the Liabilities, shall
be treated as part of the Liabilities, and the Guarantor
2
unconditionally guarantees the full and prompt payment of such judgment.
SECTION 2. Bankruptcy. The Guarantor agrees that, in the event of the
dissolution, bankruptcy or insolvency of the Guarantor, or the inability or
failure of the Guarantor generally to pay debts as they become due, or an
assignment by the Guarantor for the benefit of creditors, or the commencement of
any case or proceeding in respect of the Guarantor under any bankruptcy,
insolvency or similar laws, and if such event shall occur at a time when any of
the Liabilities may not then be due and payable, the Guarantor will pay to the
Funding Parties forthwith the full amount which would be payable hereunder by
the Guarantor if all Liabilities were then due and payable.
SECTION 3. Right of Set-Off. To secure all obligations of the Guarantor
hereunder, each Funding Party shall have a right to set-off, without demand or
notice of any kind, at any time and from time to time when any amount shall be
due and payable by the Guarantor hereunder against any and all balances,
credits, deposits, accounts or moneys of or in the Guarantor's name now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, any Funding Party or any agent or bailee for any Funding
Party, and apply any such amounts toward the payment of the Liabilities then due
in such order as the Agent may elect in accordance with the Operative Documents.
SECTION 4. Continuing Operative Guaranty. This Operative Guaranty shall in
all respects be a continuing, absolute and unconditional Operative Guaranty of
prompt and complete payment and performance (and not merely of collection), and
shall remain in full force and effect (notwithstanding, without limitation, the
dissolution of the Guarantor) until the termination of the Commitments and the
full and final payment of all of the Liabilities.
SECTION 5. Reinstatement. The Guarantor further agrees that, if at any time
all or any part of any payment theretofore applied to any of the Liabilities is
or must be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the Guarantor), such
Liabilities shall, for the purposes of this Operative Guaranty, to the extent
that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application, and this Operative
Guaranty shall continue to be effective or be reinstated, as the case may
3
be, as to such Liabilities, all as though such application had not been made.
SECTION 6. Certain Actions. The Funding Parties may, from time to time at
their discretion and without notice to the Guarantor, take any or all of the
following actions: (a) retain or obtain (i) a security interest in the Lessee's
interests in the Lease and (ii) a lien or a security interest hereafter granted
by any Person upon or in any property, in each case to secure any of the
Liabilities or any obligation hereunder; (b) retain or obtain the primary or
secondary obligation of any obligor or obligors, in addition to the Guarantor,
with respect to any of the Liabilities; (c) extend or renew for one or more
periods (regardless of whether longer than the original period), or release or
compromise any obligation of the Guarantor hereunder or any obligation of any
nature of any other obligor (including, without limitation, the Lessor) with
respect to any of the Liabilities; (d) release or fail to perfect its Lien upon
or security interest in, or impair, surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Liabilities or any obligation hereunder, or extend or renew for one or more
periods (regardless of whether longer than the original period) or release or
compromise any obligations of any nature of any obligor with respect to any such
property; and (e) resort to the Guarantor for payment of any of the Liabilities,
regardless of whether the Agent or any other Person shall have resorted to any
property securing any of the Liabilities or any obligation hereunder or shall
have proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities (all of the actions referred to in this clause
(e) being hereby expressly waived by the Guarantor).
SECTION 7. Application. Any amounts received by any Funding Party from
whatever source on account of the Liabilities shall be applied by it toward the
payment of such of the Liabilities, and in such order of application, as is set
forth in the Operative Documents.
SECTION 8. Waiver. The Guarantor hereby expressly waives: (a) notice of the
acceptance of this Operative Guaranty; (b) notice of the existence or creation
or non-payment of all or any of the Liabilities; (c) presentment, demand, notice
of dishonor, protest, and all other notices whatsoever; and (d) all diligence in
collection or protection of or realization upon the Liabilities or any thereof,
any obligation hereunder, or any security for or Operative Guaranty of any of
the foregoing.
4
SECTION 9. Assignment. Subject to Section 6 of the Master Agreement, each
Funding Party may, from time to time, whether before or after any discontinuance
of this Operative Guaranty, at its sole discretion and without notice to the
Guarantor, assign or transfer any or all of its portion of the Liabilities or
any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Operative Guaranty, and each and
every such immediate and successive assignee or transferee of any of the
Liabilities or of any interest therein shall, to the extent of such assignee's
or transferee's interest in the Liabilities, be entitled to the benefits of this
Operative Guaranty to the same extent as if such assignee or transferee were
such Funding Party.
SECTION 10. Miscellaneous. No delay in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise of any
right or remedy shall preclude other or further exercise thereof or the exercise
of any other right or remedy; nor shall any modification or waiver of any of the
provisions of this Operative Guaranty be binding upon any Funding Party except
as expressly set forth in a writing duly signed and delivered on its behalf. No
action permitted hereunder shall in any way affect or impair any Funding Party's
rights or the Guarantor's obligations under this Operative Guaranty. For the
purposes of this Operative Guaranty, Liabilities shall include all of the
obligations described in the definition thereof, notwithstanding any right or
power of the Lessee or the Lessor or anyone else to assert any claim or defense
(other than final payment) as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the obligations
of the Guarantor hereunder. The Guarantor's obligations under this Operative
Guaranty shall be absolute and unconditional irrespective of any circumstance
whatsoever which might constitute a legal or equitable discharge or defense of
the Guarantor. The Guarantor hereby acknowledges that there are no conditions to
the effectiveness of this Operative Guaranty.
This Operative Guaranty shall be binding upon the Guarantor and upon the
Guarantor's successors and permitted assigns; and all references herein to the
Guarantor shall be deemed to include any successor or successors, whether
immediate or remote, to such Person; provided that the Guarantor shall not
assign its obligations hereunder without the prior written consent of the
Funding Parties.
5
Wherever possible each provision of this Operative Guaranty shall be
interpreted in such manner as to be effective and valid under Applicable Law,
but if any provision of this Operative Guaranty shall be prohibited by or
invalid thereunder, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Operative Guaranty.
The Guarantor: (a) submits for itself and its property in any legal action
or proceeding relating to this Operative Guaranty, 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,
Georgia, 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 such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same; (c) agrees that
service of process in any such action or proceeding may be effected by
delivering a copy thereof to it at its address set forth below or at such other
address of which the other parties to the Master Agreement shall have been
notified pursuant to Section 8.2 of the Master Agreement; and (d) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right of the Funding Parties to xxx
in any other jurisdiction.
All notices, demands, declarations, consents, directions, approvals,
instructions, requests and other communications required or permitted by this
Operative Guaranty shall be in writing and shall be deemed to have been duly
given when addressed to the appropriate Person and delivered in the manner
specified in Section 8.2 of the Master Agreement. The initial address for
notices to each Guarantor is set forth below.
THIS OPERATIVE GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
6
IN WITNESS WHEREOF, the Guarantor has caused this Operative Guaranty to be
executed and delivered as of the date first above written.
EQUIFAX INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name Printed: Xxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
Address:
FLORIDA OPERATIVE GUARANTY
S-1
