EXHIBIT 10.1
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MASTER AGREEMENT
Dated as of August 29, 2001
among
CHOICEPOINT INC., as Guarantor,
CHOICEPOINT INC. AND
CERTAIN SUBSIDIARIES OF
CHOICEPOINT INC.
THAT MAY HEREAFTER BECOME PARTY HERETO,
as Lessees,
ATLANTIC FINANCIAL GROUP, LTD., as Lessor,
CERTAIN FINANCIAL INSTITUTIONS PARTIES HERETO,
as Lenders
and
SUNTRUST BANK, as Agent
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS; INTERPRETATION.................................................................1
ARTICLE II. ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION.......................................................................2
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.......................2
SECTION 2.2 Fundings of Purchase Price and Construction Costs.....................2
SECTION 2.3 Funded Amounts and Interest and Yield Thereon;
Unused Fee............................................................5
SECTION 2.4 Lessee Owner for Tax Purposes.........................................6
ARTICLE III. CONDITIONS PRECEDENT; DOCUMENTS.............................................................7
SECTION 3.1 Conditions to the Obligations of the Funding Parties
on each Closing Date..................................................7
SECTION 3.2 Additional Conditions for the Initial Closing Date...................11
SECTION 3.3 Conditions to the Obligations of Lessee..............................12
SECTION 3.4 Conditions to the Obligations of the Funding Parties
on each Funding Date.................................................13
SECTION 3.5 Completion Date Conditions...........................................14
SECTION 3.6 Addition of Lessees..................................................15
ARTICLE IV. REPRESENTATIONS............................................................................16
SECTION 4.1 Representations of ChoicePoint and other Lessees.....................16
SECTION 4.2 Survival of Representations and Effect of Fundings...................24
SECTION 4.3 Representations of the Lessor........................................24
SECTION 4.4 Representations of each Lender.......................................26
ARTICLE V. COVENANTS OF CHOICEPOINT AND THE LESSOR....................................................26
SECTION 5.1 Affirmative Covenants................................................26
SECTION 5.2 Negative Covenants...................................................33
SECTION 5.3 Environmental Notices................................................39
SECTION 5.4 Environmental Matters................................................39
SECTION 5.5 Environmental Release................................................39
SECTION 5.6 Further Assurances...................................................39
SECTION 5.7 Additional Required Appraisals.......................................39
SECTION 5.8 Lessor's Covenants...................................................39
ARTICLE VI. TRANSFERS BY LESSOR AND LENDERS; DISTRIBUTION OF
PAYMENTS AND PROCEEDS......................................................................41
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SECTION 6.1 Lessor Transfers.....................................................41
SECTION 6.2 Lender Transfers.....................................................41
SECTION 6.3 Distribution and Application of Rent Payments........................41
SECTION 6.4 Distribution and Application of Purchase Payment.....................44
SECTION 6.5 Distribution and Application to Funding Party
Balances of Lessee Payment of Recourse
Deficiency Amount Upon Exercise of Remarketing
Option...............................................................44
SECTION 6.6 Distribution and Application to Funding Party
Balances of Remarketing Proceeds of Leased
Property.............................................................44
SECTION 6.7 Distribution and Application of Payments Received
When an Event of Default Exists or Has Ceased to
Exist Following Rejection of the Lease...............................45
SECTION 6.8 Distribution of Other Payments.......................................46
SECTION 6.9 Timing of Agent Distributions........................................46
SECTION 6.10 Release of Leased Properties.........................................47
ARTICLE VII. INDEMNIFICATION............................................................................47
SECTION 7.1 General Indemnification..............................................47
SECTION 7.2 Environmental Indemnity..............................................49
SECTION 7.3 Proceedings in Respect of Claims.....................................51
SECTION 7.4 General Tax Indemnity................................................53
SECTION 7.5 Increased Costs, etc.................................................59
SECTION 7.6 End of Term Indemnity................................................63
ARTICLE VIII. MISCELLANEOUS..............................................................................64
SECTION 8.1 Survival of Agreements...............................................64
SECTION 8.2 Documentary Conventions..............................................64
SECTION 8.3 Expenses.............................................................64
SECTION 8.4 Liabilities of the Funding Parties: Sharing of
Payments.............................................................64
SECTION 8.5 Liabilities of the Agent.............................................64
SECTION 8.6 Changes in GAAP......................................................64
APPENDIX A Definitions and Interpretation
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SCHEDULES
SCHEDULE 2.2 Commitments
SCHEDULE 4.1(l) Subsidiaries
SCHEDULE 4.1(u) Indebtedness
SCHEDULE 4.1(w) Environmental Matters
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C Form of Security Agreement and Assignment
EXHIBIT D-1 Form of Mortgage
EXHIBIT D-2 Form of Deed of Trust
EXHIBIT E Form of Joinder Agreement
EXHIBIT F Form of Assignment and Acceptance Agreement
EXHIBIT G Forms of Opinions of Counsel
EXHIBIT H Form of Certification of Construction Completion
EXHIBIT I Form of Payment Date Notice
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MASTER AGREEMENT
THIS MASTER AGREEMENT, dated as of August 29, 2001 (as it may be
amended or modified from time to time in accordance with the provisions hereof,
this "Master Agreement"), is among CHOICEPOINT INC., a Georgia corporation
("ChoicePoint" or "Guarantor"), ChoicePoint and certain Subsidiaries of
ChoicePoint that may hereafter become parties hereto as lessees pursuant to
Section 3.6 (individually, together with ChoicePoint in its capacity as a
lessee, a "Lessee" and collectively the "Lessees"), as Lessees, ATLANTIC
FINANCIAL GROUP, LTD., a Texas limited partnership (the "Lessor"), certain
financial institutions parties hereto as lenders (together with any other
financial institution that becomes a party hereto as a lender, collectively
referred to as "Lenders" and individually as a "Lender"), and SUNTRUST BANK, a
Georgia state banking corporation, as agent for the Lenders (in such capacity,
the "Agent").
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Master Agreement,
the Lease, the Loan Agreement and the other Operative Documents, (i) the Lessor
contemplates acquiring Land and, in certain cases, the Buildings on such Land
identified by ChoicePoint from time to time, and leasing such Land and Buildings
thereon to a Lessee, (ii) ChoicePoint, as Construction Agent for the Lessor,
wishes, in certain instances, to arrange for the construction of Buildings on
Land for the Lessor and, when completed, the related Lessee wishes to lease such
Buildings from the Lessor as part of the Leased Properties under the Lease,
(iii) ChoicePoint, in carrying out its duties as agent, wishes to obtain from
Lessor, and the Lessor is willing to provide, funding for the acquisition of the
Land and Buildings, or, in certain instances, the construction of Buildings, and
(iv) the Lessor wishes to obtain, and Lenders are willing to provide, from time
to time, financing of a portion of the funding of the acquisition of the Land
and Buildings and, if applicable, the construction of the Buildings.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A hereto
for all purposes hereof; and the rules of interpretation set forth in Appendix A
hereto shall apply to this Master Agreement.
ARTICLE II.
ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.
(a) Land. Subject to the terms and conditions of this
Master Agreement, with respect to each parcel of Land identified by ChoicePoint,
on the related Closing Date (i) the Lessor agrees to acquire such interest in
the related Land, and any Building thereon, from the applicable Seller as is
transferred, sold, assigned and conveyed to the Lessor pursuant to the
applicable Purchase Agreement or to lease such interest in the related Land, and
any Building thereon, from the applicable Ground Lessor as is leased to the
Lessor pursuant to the applicable Ground Lease, (ii) the Lessor hereby agrees to
lease, or sublease, as the case may be, such Land and any Building thereon to
the related Lessee pursuant to the Lease, and (iii) the related Lessee hereby
agrees to lease, or sublease, as the case may be, such Land, and any Building
thereon, from the Lessor pursuant to the Lease. With respect to each IDB
Property, (i) the applicable Authority may acquire such interest in the related
Land from the applicable Seller as is transferred, sold, assigned and conveyed
to the Authority pursuant to the applicable Purchase Agreement, (ii) the
applicable Authority will lease such Land to the Lessor pursuant to the related
IDB Lease, and (iii) the related Lessee hereby agrees to sublease such Land from
the Lessor pursuant to the Lease (it being understood that any reference in the
Operative Documents to the lease by a Lessee of an IDB Property shall be deemed
to refer to the sublease thereof pursuant to the Lease, if title to such IDB
Property is held by the related Authority).
(b) Building. With respect to each parcel of Land on
which a Building is to be constructed, subject to the terms and conditions of
this Master Agreement, from and after the Closing Date relating to such Land (i)
the Construction Agent agrees, pursuant to the terms of the Construction Agency
Agreement, to construct and install the Building on such Land for the Lessor
prior to the Scheduled Construction Termination Date, (ii) the Lenders and the
Lessor agree to fund the Construction Costs with respect to such Building, (iii)
the Lessor shall lease, or sublease, as the case may be, such Building as part
of such Leased Property to the related Lessee pursuant to the Lease, and (iv)
the related Lessee shall lease, or sublease, as the case may be, such Building
from the Lessor pursuant to the Lease.
SECTION 2.2 Fundings of Purchase Price and Construction Costs.
(a) Initial Funding and Payment of Purchase Price for
Land and Development Costs on Closing Date. Subject to the terms and conditions
of this Master Agreement, on the Closing Date for any Land, and any Building
thereon, each Lender shall make available, or arrange to make available, to the
Lessor its initial Loan with respect to such Land, and any Building thereon, in
an amount equal to the product of such Lender's Commitment Percentage times the
purchase price or the ground rent for such Land, and any Building thereon, and
the
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Construction Costs incurred by the Construction Agent, as agent, through such
Closing Date, which funds the Lessor shall use, together with the Lessor's own
funds in an amount equal to the product of the Lessor's Commitment Percentage
times the purchase price or ground rent for the related Land and any Building
thereon, and the Construction Costs incurred by the Construction Agent, as agent
for the Lessor, through such Closing Date, to purchase such Land, and any
Building thereon, from the applicable Seller pursuant to the applicable Purchase
Agreement or lease the Land and any Building thereon from the applicable Ground
Lessor pursuant to the applicable Ground Lease, as the case may be, and to pay
the amount of such Construction Costs, and the Lessor shall lease, or sublease,
as the case may be, such Land to the related Lessee pursuant to the Lease.
(b) Subsequent Fundings and Payments of Construction
Costs during Construction Term. Subject to the terms and conditions of this
Master Agreement, if a Building is to be constructed on Land, on each Funding
Date following the Closing Date for each such parcel of Land until the related
Construction Term Expiration Date, (i) each Lender shall make available, or
arrange to make available, to the Lessor a Loan in an amount equal to the
product of such Lender's Commitment Percentage times the amount of Funding
requested by the Construction Agent for such Funding Date, which funds the
Lessor hereby directs each Lender to pay over, or cause to be paid over, to the
Agent, for distribution to the Construction Agent, as agent for the Lessor, as
set forth in paragraph (d), and (ii) the Lessor shall pay over to the Agent, for
distribution to the Construction Agent, as agent for the Lessor, its own funds
(which shall constitute a part of, and an increase in, the Lessor's Invested
Amount with respect to such Leased Property) in an amount equal to the product
of the Lessor's Commitment Percentage times the amount of Funding requested by
the Construction Agent for such Funding Date.
(c) Aggregate Limits on Funded Amounts. The aggregate
amount that the Funding Parties shall be committed to provide, or cause to be
provided, as Funded Amounts under this Master Agreement and the Loan Agreement
shall not exceed (x) with respect to each Leased Property, the costs of purchase
(or ground lease, as the case may be) of such Leased Property and the related
Construction Costs, or (y) $52,200,000 in the aggregate for all Leased
Properties. The aggregate amount that any Funding Party shall be committed to
fund, or cause to be funded, under this Master Agreement and the Loan Agreement
shall not exceed the lesser of (i) such Funding Party's Commitment and (ii) such
Funding Party's Commitment Percentage of the aggregate Fundings requested under
this Master Agreement.
(d) Notice, Time and Place of Fundings. With respect to
each Funding, a Lessee or the Construction Agent, as the case may be, shall give
the Lessor and the Agent an irrevocable prior telephone (followed within one
Business Day with written) or written notice not later than 11:00 a.m., Atlanta,
Georgia time, at least three Business Days prior to the proposed Closing Date or
other Funding Date, as the case may be, pursuant, in each case, to a Funding
Request in the form of Exhibit A (a "Funding Request"), specifying the Closing
Date or subsequent Funding Date, as the case may be, the amount of Funding
requested, the Leased
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Property to which such Funding relates, whether such Funding shall be a LIBOR
Advance or a Base Rate Advance or a combination thereof 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 00000, or at
such other location as may be determined by the Lessor, the Construction Agent
and the Agent. Each Funding shall occur on a Business Day and shall be in an
amount equal to $250,000 or an integral multiple of $25,000 in excess thereof,
with the exception of the final draw, which may be for such lesser amount as may
be due and owing to fund the balance of the Construction Costs for the related
Leased Property. All remittances made by, or caused to be made by, any Lender
and the Lessor for any Funding shall be made in immediately available funds by
wire transfer to or, as is directed by, the Construction Agent, with receipt by
the Construction Agent not later than 1:00 p.m., Atlanta, Georgia time, on the
applicable Funding Date, upon satisfaction or waiver of the conditions precedent
to such Funding set forth in Section 3; such funds shall (1) in the case of the
initial Funding on a Closing Date, be used to pay the purchase price to the
applicable Seller, or ground rent to the applicable Ground Lessor, for the
related Land and any Building thereon and pay Construction Costs related to such
Land, and (2) in the case of each subsequent Funding be paid to the Construction
Agent, as agent for the Lessor, for the payment or reimbursement of Construction
Costs incurred through such Funding Date and not previously paid or reimbursed.
(e) Lessee's Deemed Representation for Each Funding. Each
Funding Request by a Lessee or the Construction Agent shall be deemed a
reaffirmation of each Lessee's indemnity obligations in favor of the Indemnitees
under the Operative Documents and a representation and warranty to the Lessor,
the Agent and the Lenders that on the proposed Closing Date or Funding Date, as
the case may be, (i) the amount of Funding requested represents amounts owing in
respect of the purchase price or ground rent of the related Land, and any
Building thereon, and Construction Costs in respect of the Leased Property (in
the case of the initial Funding on a Closing Date) or amounts that are then due
to third parties in respect of the Construction, or amounts paid by the
Construction Agent, as agent for the Lessor, to third parties which the
Construction Agent has not previously been reimbursed by a Funding (in the case
of any Funding), (ii) no Event of Default or Potential Event of Default exists,
and (iii) the representations and warranties of the Guarantor and each 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.
(f) Not Joint Obligations. Notwithstanding anything to
the contrary set forth herein or in the other Operative Documents, each Lender's
and the Lessor's commitments shall be several, and not joint. In no event shall
any Funding Party be obligated to fund, or cause to be funded, an amount in
excess of such Funding Party's Commitment Percentage of any Funding,
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or to fund, or cause to be funded, amounts in the aggregate in excess of such
Funding Party's Commitment.
(g) Non-Pro Rata Fundings. Notwithstanding anything to
the contrary set forth in this Master Agreement, but subject to Section 2.2(f)
above, at the Agent's option, Fundings may be made by drawing on the Lessor's
Commitment until such Commitment is fully funded before drawing on the Lenders'
Commitments. In such event, when the Lessor's Commitment is fully funded, the
Lenders will fund, or cause to be funded, on a pro rata basis as among
themselves, 100% of the amount of the Fundings thereafter, provided that, in no
event will the Lessor's Invested Amount be less than 3.5% of the aggregate
Funded Amounts.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Unused
Fee.
(a) The Lessor's Invested Amount for any Leased Property
outstanding from time to time shall accrue yield ("Yield") at the Lessor Rate,
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
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, from the date of nonpayment until paid in full (both before and
after judgment).
(b) Each Lender's Funded Amount for any Leased Property
outstanding from time to time shall accrue interest as provided in the Loan
Agreement.
(c) During the Construction Term, in lieu of the payment
of accrued interest, on each Payment Date, each Lender's Funded Amount in
respect of a Construction Land Interest shall automatically be increased by the
amount of interest accrued and unpaid on the related Loans pursuant to the Loan
Agreement during the Rent Period ending immediately prior to such Payment Date
(except to the extent that at any time such increase would cause such Lender's
Funded Amount to exceed such Lender's Commitment, in which event the related
Lessee shall pay such excess amount to such Lender in immediately available
funds on such Payment Date, unless such amount is an Additional Amount).
Similarly, in lieu of the payment of accrued Yield, on each Payment Date, the
Lessor's Invested Amount in respect of a Construction Land Interest shall
automatically be increased by the amount of Yield accrued on the Lessor's
Invested Amount in respect of such Leased Property during the Rent Period ending
immediately prior to such Payment Date (except to the extent that at any time
such increase would cause the Lessor's Invested Amount to exceed the Lessor's
Commitment, in which event the related Lessee shall pay such excess amount to
the Lessor in immediately available funds on such Payment Date, unless such
amount is an Additional Amount). Such increases in Funded Amounts shall occur
without any disbursement of funds by the Funding Parties, and without the need
for delivery of a Funding Request. In addition, all Supplemental Rent payable to
the Funding Parties with respect to any Construction Land Interest during the
Construction Term therefor, other than indemnities
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payable pursuant to Section 3.3 of the Construction Agency Agreement, shall be
capitalized and added to the principal of the related Loans and the related
Lessor's Invested Amount (except to the extent that at any time such addition
would cause any Funding Party's Funded Amount to exceed its Commitment, in which
event the related Lessee shall pay such excess amount to such Funding Party in
immediately available funds, unless such amount is an Additional Amount).
(d) Three Business Days prior to the last day of each
Rent Period, ChoicePoint shall deliver (which delivery may be by facsimile) 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 LIBOR Advances and Base Rate
Advances and the Rent Periods therefor, provided that no such allocation to
LIBOR Advances shall be in an amount less than $1,000,000. Each such Payment
Date Notice shall be irrevocable. If no such notice is given, the Funded Amounts
shall be allocated to a LIBOR Advance with a Rent Period of three (3) months.
(e) ChoicePoint agrees to pay to the Agent, for the pro
rata benefit of the Funding Parties, an unused fee for each day from the date
hereof until the Funding Termination Date equal to (i) the Fee Percentage times
(ii) the aggregate Commitments, minus the Funded Amounts on such day, times
(iii) 1/360. Such fees shall be payable in arrears on each Quarterly Payment
Date and, prior to the Funding Termination Date, shall be paid by automatically
increasing the Funded Amounts by the amount of such accrued fee. Such increases
in the Funded Amounts shall occur without any disbursement of funds by the
Funding Parties, and without the need for delivery of a Funding Request.
(f) In lieu of the payment of accrued interest and Yield,
on each Payment Date, each Funding Party's Funded Amount in respect of any
Additional Amounts shall automatically be increased by the amount of interest or
Yield accrued and unpaid on such Additional Amounts during the Rent Period
ending immediately prior to such Payment Date. Such increases in Funded Amounts
shall occur without any disbursement of funds by the Funding Parties, and
without the need for delivery of a Funding Request.
SECTION 2.4 Lessee Owner for Tax Purposes. With respect to each
Leased Property, it is the intent of the Lessees and the Funding Parties that
for federal, state and local tax (including sales and use taxes) purposes and
commercial and bankruptcy law purposes the Lease shall be treated as the
repayment and security provisions of a loan by the Lessor to the Lessees, and
that the related Lessee shall be treated as the legal and beneficial owner
entitled to any and all benefits of ownership of such Leased Property and all
payments of Basic Rent during the Lease Term shall be treated as payments of
interest and principal. Nevertheless, each of Guarantor and each Lessee
acknowledges and agrees that neither the Agent, nor any Funding Party, nor 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 each of Guarantor and each Lessee has obtained and relied
solely upon the advice of its own tax, accounting and legal
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advisors concerning the Operative Documents and the accounting, tax, financial
and legal consequences of the transactions contemplated therein.
ARTICLE III.
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties
on each 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 with respect to any Land and any Building thereon
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 such
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) Deed and Purchase Agreement; Ground Lease.
The related original Deed duly executed by the applicable
Seller in favor of the Lessor and in recordable form, and
copies of the related Purchase Agreement, assigned to the
Lessor (unless Lessor is the original party thereto), shall
each have been delivered to the Agent by ChoicePoint or the
related Lessee, with copies thereof to each other Funding
Party or the related Ground Lease, duly assigned to the Lessor
(unless Lessor is the original party thereto), shall have been
delivered to the Agent, with copies thereof to each other
Funding Party, as applicable (it being understood, that each
Purchase Agreement and each Ground Lease shall be reasonably
satisfactory in form and substance to the Lessor and the
Lenders).
(ii) Lease Supplement. The original of the
related Lease Supplement, duly executed by the related Lessee
and the Lessor and in recordable form, shall have been
delivered to the Agent by such Lessee.
(iii) Mortgage and Assignment of Lease and Rents.
Counterparts of the Mortgage (substantially in the form of
Exhibit D-1 or D-2, as the case may be, attached hereto), duly
executed by the Lessor and in recordable form, shall have been
delivered to the Agent; and the Assignment of Lease and Rents
(substantially in the form of Exhibit B attached hereto) in
recordable form, duly executed by the Lessor, shall have been
delivered to the Agent by the Lessor.
(iv) Security Agreement and Assignment. If
Buildings are to be constructed on the Land, counterparts of
the Security Agreement and Assignment
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(substantially in the form of Exhibit C attached hereto), duly
executed by the Construction Agent, with an acknowledgment and
consent thereto satisfactory to the Lessor and the Agent duly
executed by the related General Contractor and the related
Architect or Engineer, as applicable, and complete copies of
the related Construction Contract and the related Architect's
Agreement or Engineer's Agreement certified by the
Construction Agent, shall have been delivered to the Lessor
and the Agent (it being understood and agreed that if no
related Construction Contract, Architect's Agreement or
Engineer's Agreement exists on such Closing Date, such
delivery shall not be a condition precedent to the Funding on
such Closing Date, and in lieu thereof the Construction Agent
shall deliver complete copies of such Security Agreement and
Assignment and consents concurrently with the Construction
Agent's entering into such contracts). If such Leased Property
is a Construction Land Interest, counterparts of the
supplement to the Construction Agency Agreement for such
Leased Property, duly executed by the Construction Agent and
the Lessor, shall have been delivered to the Agent.
(v) Survey. The related Lessee shall have
delivered, or shall have caused to be delivered, to the Lessor
and the Agent, at such Lessee's expense, an accurate survey
certified to the Lessor and the Agent in a form reasonably
satisfactory to the Lessor and the Agent and prepared within
ninety (90) days of such Closing Date (or such other time
period agreed to by the Lessor and the Agent) by a Person
reasonably satisfactory to the Lessor and the Agent. Such
survey shall (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 encroachments on such Land by structures owned by
others, and no encroachments from any part of such Leased
Property onto any land owned by others, and (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.
(vi) Title and Title Insurance. On such 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 the projected cost of acquisition and
construction of such Leased Property, 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 such Closing Date, and, to the extent permitted
under Applicable Law, shall include such affirmative
endorsements as the Lessor or the Agent shall reasonably
request.
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(vii) Appraisal. Each Funding Party shall have
received a report of the Appraiser (an "Appraisal"), paid for
by Guarantor or the related Lessee, which shall meet the
requirements of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, shall be satisfactory to such
Funding Party and shall state in a manner satisfactory to such
Funding Party the estimated "as vacant" value of such Land and
existing Buildings or any Building to be constructed thereon.
Such Appraisal must show that the "as vacant" value of such
Leased Property (if a Building is to be constructed on the
Land, determined as if the Building had already been completed
in accordance with the related Plans and Specifications and by
excluding from such value the amount of assessments on such
Leased Property) is at least 45% of the total cost of such
Leased Property, including the cost of the trade fixtures,
equipment and personal property related to such Leased
Property and to be funded by the Funding Parties.
(viii) Environmental Audit and related Reliance
Letter. The Lessor and the Agent shall have received an
Environmental Audit for such Leased Property, which shall be
conducted in accordance with ASTM standards and shall not
include a recommendation for further investigation and is
otherwise satisfactory to the Lessor and the Agent; and the
firm that prepared the Environmental Audit for such Leased
Property shall have delivered to the Lessor and the Agent a
letter 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 Guarantor's or any Lessee's obligations under the
Operative Documents with respect to any environmental
liabilities relating to such Leased Property.
(ix) Evidence of Insurance. The Lessor and the
Agent shall have received from the related 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, as their interests may
appear), in form and substance reasonably satisfactory to the
Lessor and the Agent.
(x) 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, if required by applicable law, UCC-2
financing statement to be filed with the Secretary of State of
the applicable State (or other appropriate filing office) and
the county where the related Land is located, respectively,
and such other Uniform Commercial Code financing statements as
any Funding Party deems necessary or desirable in order to
perfect such Funding Party's interests and (ii) the payment of
all recording and filing fees and taxes with respect to any
recordings or filings made of the related Deed, the Lease, the
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related Lease Supplement, the related Mortgage and the related
Assignment of Lease and Rents.
(xi) Opinions. An opinion of local counsel for
the related Lessee qualified in the jurisdiction in which such
Leased Property is located, substantially in the form set
forth in Exhibit G attached hereto, 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 Lenders. To the extent
reasonably requested by the Agent, opinions supplemental to
those delivered under Section 3.2(vi) and reasonably
satisfactory to the Agent shall have been delivered and
addressed to each of the Lessor, the Agent and the Lenders.
(xii) Good Standing Certificates. The Agent shall
have received good standing certificates for the Lessor and
the related Lessee from the appropriate offices of the state
where the related Land is located.
(xiii) IDB Property. If such Leased Property is an
IDB Property or is otherwise subject to industrial development
or revenue bonds, the IDB Documentation shall have been
executed by the parties thereto, and shall be in form and
substance reasonably acceptable to the Agent, the Lessor and
the Lenders.
(b) Litigation. No action or proceeding shall have been
instituted or, to the knowledge of any Funding Party, threatened nor shall any
governmental action, suit, proceeding or investigation be instituted or
threatened before any Governmental Authority, nor shall any order, judgment or
decree have been issued or proposed to be issued by any Governmental Authority,
to set aside, restrain, enjoin or prevent the performance of this Master
Agreement or any transaction contemplated hereby or by any other Operative
Document or which is reasonably likely to materially adversely affect any Leased
Property or any transaction contemplated by the Operative Documents or which
would 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 such Leased Property
shall have occurred and be continuing, (ii) no action shall be pending or
threatened by a Governmental Authority to initiate a
10
Condemnation or an Event of Taking, and (iii) there shall not have occurred any
event that would reasonably be expected to have a Material Adverse Effect since
December 31, 2000.
(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 such Closing Date, except to the extent such
representations or warranties relate solely to an earlier date, in which case
such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date.
(f) Cutoff Date. No Closing Date shall occur after the
Funding Termination Date.
(g) Approval. The Agent shall not have rejected such
Leased Property for inclusion in the Lease by written notice to ChoicePoint.
SECTION 3.2 Additional Conditions for the Initial 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) Loan Agreement; Guaranty Agreement.
Counterparts of the Loan Agreement, duly executed by the
Lessor, the Agent and each Lender shall have been delivered to
each of the Lessor and the Agent. The Note, duly executed by
the Lessor, shall have been delivered to the Agent. The
Guaranty Agreement, duly executed by the Guarantor, shall have
been delivered to the Agent.
(ii) Master Agreement. Counterparts of this
Master Agreement, duly executed by the parties hereto, shall
have been delivered to each of the parties hereto.
(iii) Construction Agency Agreement. Counterparts
of the Construction Agency Agreement, duly executed by the
parties thereto shall have been delivered to each of the
parties hereto.
(iv) Lease. Counterparts of the Lease, duly
executed by the Lessees party to this Master Agreement on the
Initial Closing Date, 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.
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(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 each of Guarantor and each Lessee party hereto on
the Initial Closing Date, attaching and certifying as to (i)
the Board of Directors' (or appropriate committee's)
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 or certificate 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 or active status certificates for each of Guarantor
and each Lessee party hereto on the Initial Closing Date from
the appropriate offices of the states of Guarantor's or such
Lessee's incorporation and principal place of business.
(vi) Opinions of Counsel. The opinions of Xxxxx,
Day, Xxxxxx & Xxxxx and of internal counsel for ChoicePoint,
each dated the Initial Closing Date, and containing such
matters as the parties to whom it is addressed shall
reasonably request, shall have been delivered and addressed to
each of the Lessor, the Agent and the Lenders. The opinion of
Xxxxx XxXxxxxxx, LLP, dated the Initial Closing Date,
containing such matters as the parties to whom it is addressed
shall reasonably request, shall have been delivered to each of
the Agent, the Lenders and ChoicePoint.
(vii) Good Standing Certificate. The Agent and
ChoicePoint shall have received a good standing certificate
for the Lessor and the General Partner from the appropriate
office of the State of Texas.
(viii) Lessor's Consents and Incumbency
Certificate, etc. The Agent and ChoicePoint shall have
received a certificate of the Secretary or an Assistant
Secretary of the General Partner of the Lessor attaching and
certifying as to (i) the consents of the partners of the
Lessor 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, and (iii) the Partnership Agreement.
SECTION 3.3 Conditions to the Obligations of Lessee. The
obligations of any Lessee to lease a Leased Property from the Lessor are subject
to the fulfillment on the related Closing Date to the satisfaction of, or waiver
by, such Lessee, of the following conditions precedent:
(a) General Conditions. The conditions set forth in
Sections 3.1 and 3.2 that require fulfillment by the Lessor or the Lenders shall
have been satisfied.
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(b) Legality. In the opinion of such Lessee or its
counsel, the transactions contemplated by the Operative Documents shall not
violate any Applicable Law, and no change shall have occurred or been proposed
in Applicable Law that would make it illegal for such Lessee to participate in
any of the transactions contemplated by the Operative Documents.
(c) Purchase Agreement; Ground Lease. The Purchase
Agreement and, if applicable, the Ground Lease and all documents to be delivered
under the Purchase Agreement or Ground Lease, including title insurance, survey
and environmental audit, shall be reasonably satisfactory to such Lessee.
SECTION 3.4 Conditions to the Obligations of the Funding Parties
on each Funding Date. The obligations of the Lessor and each Lender to carry out
their respective obligations under Section 2 of this Master Agreement to be
performed on each Funding Date shall be subject to the fulfillment to the
satisfaction of, or waiver by, each such party hereto (acting directly or
through their respective counsel) on or prior to each such Funding Date of the
following conditions precedent, provided that the obligations of any Funding
Party shall not be subject to any conditions contained in this Section 3.4 which
are required to be performed by such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have
received from the Construction Agent or a Lessee the Funding Request therefor
pursuant to Section 2.2(d).
(b) Condition Fulfilled. As of such Funding Date, the
conditions set forth in Sections 3.1(c) and (d) shall have been satisfied.
(c) Representations. As of such Funding Date, both before
and after giving effect to the Funding requested by the Construction Agent or a
Lessee on such date, the representations and warranties that the Construction
Agent or such Lessee is deemed to make pursuant to Section 2.2(e) shall be true
and correct in all material respects on and as of such Funding Date as though
made on and as of such Funding Date, except to the extent such representations
or warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date.
(d) No Bonded Stop Notice or Filed Mechanics Lien. As of
such Funding Date, and as to any Funded Amount requested for any Leased Property
on such Funding Date, (i) none of the Lessor, the Agent or any Lender has
received (with respect to such Leased Property) a bonded notice to withhold Loan
funds that has not been discharged by the related Lessee or the Construction
Agent, and (ii) no mechanic's liens or materialman's liens have been filed
against such Leased Property that have not been discharged by the related
Lessee, bonded over in a manner reasonably satisfactory to the Agent or insured
over by the Title Insurance Company.
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(e) Lease Supplement. If the Funding relates to a
Building that will be leased under a Lease Supplement separate from the Lease
Supplement for the related Land, the original of such separate Lease Supplement,
duly executed by the related Lessee and the Lessor and in recordable form, shall
have been delivered to the Agent.
SECTION 3.5 Completion Date Conditions. The occurrence of the
Completion Date with respect to any Leased Property shall be subject to the
fulfillment to the satisfaction of, or waiver by, each party hereto (acting
directly or through its counsel) of the following conditions precedent:
(a) Certificate of Occupancy. The Construction Agent
shall have furnished to the Agent copies of a certificate or certificates of
occupancy for such Leased Property or other legally equivalent permission to
occupy such Leased Property.
(b) Construction Completion. Any related Construction
shall have been completed substantially in accordance with the related Plans and
Specifications (subject to punch list requirements), the related Deed and all
Applicable Laws, and such Leased Property shall be ready for occupancy and
operation. All fixtures, equipment and other property contemplated under the
Plans and Specifications to be incorporated into or installed in such Leased
Property shall have been substantially incorporated or installed, free and clear
of all Liens except for Permitted Liens.
(c) Construction Agent Certification. The Construction
Agent shall have furnished the Lessor, the Agent and each Lender with a
certification of the Construction Agent (substantially in the form of Exhibit H)
that:
(i) all amounts owing to third parties for the
related Construction have been paid in full (other than contingent
obligations for which the Construction Agent, as agent for the Lessor,
has made adequate reserves), and no litigation or proceedings are
pending, or to the best of the Construction Agent's knowledge, are
threatened, against such Leased Property or the Construction Agent or
the related Lessee which could reasonably be expected to have a
Material Adverse Effect;
(ii) all material consents, licenses and permits
and other governmental authorizations or approvals required for such
Construction and operation of such Leased Property have been obtained
and are in full force and effect;
(iii) such Leased Property has available all
services of public facilities and other utilities necessary for use and
operation of such Leased Property for its intended purposes including,
without limitation, adequate water, gas and electrical supply, storm
and sanitary sewerage facilities, telephone, other required public
utilities
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and means of access between the related Building and public highways
for pedestrians and motor vehicles;
(iv) all material agreements, easements and other
rights, public or private, which are necessary to permit the lawful use
and operation of such Leased Property as the related Lessee intends to
use such Leased Property under the Lease and which are necessary to
permit the lawful intended use and operation of all then intended
utilities, driveways, roads and other means of egress and ingress to
and from the same have been obtained and are in full force and effect
and neither the Construction Agent nor the related Lessee has any
knowledge of any pending modification or cancellation of any of the
same; and the use of such Leased Property does not depend on any
variance, special exception or other municipal approval, permit or
consent that has not been obtained and is in full force and effect for
its continuing legal use;
(v) all of the requirements and conditions set
forth in Section 3.5(b) hereof have been completed and fulfilled with
respect to such Leased Property and the related Construction; and
(vi) such Leased Property is in compliance in all
material respects with all applicable zoning laws and regulations.
SECTION 3.6 Addition of Lessees. After the date hereof,
additional Subsidiaries of ChoicePoint may become Lessees hereunder and under
the other Operative Documents upon satisfaction of the following conditions
precedent:
(a) such Subsidiary and the Guarantor shall have executed
and delivered to the Agent and the Lessor a Joinder Agreement, substantially in
the form of Exhibit E;
(b) such Subsidiary shall have delivered to each of the
Agent and the Lessor (x) a certificate of the Secretary or an Assistant
Secretary of such Subsidiary, attaching and certifying as to (i) the Board of
Directors' 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 or certificate of incorporation,
certified as of a recent date by the Secretary of State of its incorporation and
(iv) its by-laws, and (y) good standing or active status certificates from the
appropriate offices of the States of such Subsidiary's incorporation and
principal place of business;
(c) such Subsidiary shall have delivered an opinion of
Xxxxx, Day, Xxxxxx & Xxxxx, or other counsel to such Subsidiary, addressed to
each of the Lessor, the Agent and the Lenders, substantially in the form of the
opinion delivered by counsel to ChoicePoint on the Initial Closing Date; and
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(d) the Agent, the Lessor and the Lenders shall have
received such other documents, certificates and information as any of them shall
have reasonably requested.
ARTICLE IV.
REPRESENTATIONS
SECTION 4.1 Representations of ChoicePoint and other Lessees.
Effective as of the date of execution hereof, as of each Closing Date and as of
each Funding Date, each of ChoicePoint and each other Lessee represents and
warrants to each of the other parties hereto as follows:
(a) Corporate Existence; Compliance with Law. It is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation. It is (i) has the corporate power
and authority and the legal right to own and operate its property and to conduct
its business, (ii) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership of property or
the conduct of its business requires such qualification, and (iii) is in
compliance with all Requirements of Law, except where the failure to duly
qualify or to comply with applicable Requirements of Law would not have a
Material Adverse Effect.
(b) Corporate Power; Authorization. It has the corporate
power and authority to make, deliver and perform the Operative Documents to
which it is a party and has taken all necessary corporate action to authorize
the execution, delivery and performance of such Operative Documents. No consent
or authorization of, or filing with, any Person (including, without limitation,
any governmental authority), is required in connection with the execution,
delivery or performance by it, or the validity or enforceability against it, of
the Operative Documents, other than such consents, authorizations or filings
which have been made or obtained.
(c) Enforceable Obligations. This Master Agreement and
each other Operative Document to which it is a party has been duly authorized,
executed and delivered by it, and this Master Agreement and each other Operative
Document to which it is a party constitute legal, valid and binding obligations
enforceable against it in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
(d) No Contractual or Legal Bar. The execution, delivery
and performance by it of the Operative Documents to which it is a party (i) will
not contravene any material provision of any Requirement of Law, (ii) will not
conflict with or be inconsistent with or result in any breach of, or constitute
a default under, any Contractual Obligations of any Consolidated Company that
would result in liability to it of $500,000 or more in the aggregate or
otherwise result in a Material Adverse Effect, (iii) will not violate any
provision of its certificate of
16
incorporation (or equivalent thereof) or bylaws (or equivalent thereof), (iv)
will not require the consent, approval or authorization of any governmental or
non-governmental authority or Person and (v) will not result in the creation of
any Lien upon any of its the assets or properties and its Subsidiaries, other
than those Liens permitted under Section 5.2(a).
(e) No Material Litigation or Investigations. No
litigation, investigations or proceedings of or before any courts, tribunals,
arbitrators or governmental authorities are pending or, to knowledge threatened
by or against any of the Consolidated Companies, or against any of their
respective properties or rights, existing or future (i) with respect to any
Operative Document or any of the transactions contemplated hereby or thereby, or
(ii) which, if adversely determined, would reasonably be expected to have a
Material Adverse Effect.
(f) Investment Company Act, Etc. None of the Consolidated
Companies is an "investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the Investment
Company Act of 1940, as amended). None of the Consolidated Companies is subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation limiting its
ability to incur indebtedness for money borrowed, guarantee such indebtedness,
or pledge its assets to secure such indebtedness, as contemplated hereby or by
any other Operative Document.
(g) Margin Regulations. No part of the proceeds of any of
the Funded Amounts will be used for any purpose which violates, or which would
be inconsistent or not in compliance with, the provisions of the applicable
Margin Regulations.
(h) Insurance. ChoicePoint currently maintains insurance
with respect to its properties and businesses, with financially sound and
reputable insurers, having coverages against losses or damages of the kinds
customarily insured against by reputable companies in the same or similar
businesses, such insurance being the types, and in amounts no less than those
amounts which are, customary for such companies under similar circumstances;
provided, however, that ChoicePoint may self insure in amounts satisfactory to
management, subject to the provisions of Section 5.1(f). The Consolidated
Companies have paid all material amounts of insurance premiums now due and owing
with respect to such insurance policies and coverages (it being understood that
insurance premiums for certain insurance policies and coverages may permit
payment on a quarterly basis), and such policies and coverages are in full force
and effect.
(i) No Default. None of the Consolidated Companies is in
default under or with respect to any material Contractual Obligation in any
respect.
(j) No Burdensome Restrictions. None of the Consolidated
Companies is a party to or bound by any Contractual Obligation or Requirement of
Law which has had or would reasonably be expected to have a Material Adverse
Effect.
17
(k) Taxes. Each of the Consolidated Companies has filed
or caused to be filed all declarations, reports and tax returns which are
required to have been filed, and has paid all taxes, custom duties, levies,
charges and similar contributions ("taxes" in this Section 4.1(k) shown to be
due and payable on said returns or on any assessments made against it or its
properties, and all other taxes, fees or other charges imposed on it or any of
its properties by any governmental authority (other than those the amount or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided in its books or where the aggregate sum of taxes unpaid is less than
$500,000); and no tax liens have been filed and, to its knowledge, no claims are
being asserted with respect to any such taxes, fees or other charges.
(l) Subsidiaries. Schedule 4.1(l) accurately describes as
of the initial Closing Date (1) the complete name of each Subsidiary of
ChoicePoint, (2) the jurisdiction of incorporation or organization of each
Subsidiary of ChoicePoint, (3) the ownership of all issued and outstanding
Capital Stock of each Subsidiary of ChoicePoint and (4) whether such Subsidiary
is a Material Subsidiary. Except as disclosed on Schedule 4.1(l), ChoicePoint
has no Subsidiaries and neither ChoicePoint nor any Subsidiary is a joint
venture partner or general partner in any partnership. Each of the 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 as now conducted in each case where the failure to have the same
would have a Material Adverse Effect.
(m) Financial Statements. The audited balance sheet of
the Consolidated Companies as of December 31, 2000, and the related statements
of income and cash flows of the Consolidated Companies, a copy of which has been
delivered to the Funding Parties, fairly presents, in conformity with generally
accepted accounting principles, the financial position of the Consolidated
Companies of such date and time. The Consolidated Companies do not have any
material contingent obligations, contingent liabilities or other obligations
which are not reflected in the balance sheet referenced above. Since [December
31, 2000], there have been no changes with respect to the Consolidated Companies
which has had or would reasonably be expected to have a Material Adverse Effect.
(n) ERISA.
(i)(1) Identification of Plans. (A) None of the Consolidated
Companies nor any of their respective ERISA Affiliates maintains or contributes
to, or has during the past two years maintained or contributed to, any Plan that
is subject to Title IV of ERISA, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan;
18
(2) Compliance. Each Plan and each Foreign Plan
maintained by the Consolidated Companies have at all times been maintained, by
their terms and in operation, in compliance with all applicable laws, and the
Consolidated Companies are subject to no tax or penalty with respect to any Plan
maintained or contributed to by such Consolidated Company or any ERISA Affiliate
thereof, including without limitation, any tax or penalty under Title I or Title
IV of ERISA or under Chapter 43 of the Tax Code, or any tax or penalty resulting
from a loss of deduction under Sections 404, or 419 of the Tax Code, where the
failure to comply with such laws, and such taxes and penalties, together with
all other liabilities referred to in this Section 4.1(n) (taken as a whole),
would in the aggregate have a Material Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject
to no liabilities (including withdrawal liabilities) with respect to any Plans
or Foreign Plans maintained or contributed to by such Consolidated Companies or
any of their ERISA Affiliates, including without limitation, any liabilities
arising from Titles I or IV of ERISA, other than obligations to fund benefits
under an ongoing such Plan and to pay current contributions, expenses and
premiums with respect to such Plans or Foreign Plans, where such liabilities,
together with all other liabilities referred to in this Section 4.1(n) (taken as
a whole), would in the aggregate have a Material Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect
to any Plan which is subject to Title IV of ERISA, each of their respective
ERISA Affiliates, have made full and timely payment of all amounts (A) required
to be contributed by any of them under the terms of each Plan and applicable
law, and (B) required to be paid as expenses by any of them (including PBGC or
other premiums) of each Plan, where the failure to pay such amounts (when taken
as a whole, including any penalties attributable to such amounts) would have a
Material Adverse Effect. No Plan maintained by a Consolidated Company subject to
Title IV of ERISA has an "amount of unfunded benefit liabilities" (as defined in
Section 4001(a)(18) of ERISA, determined as if such Plan terminated on any date
on which this representation and warranty is deemed made, in any amount which,
together with all other liabilities referred to in this Section 4.1(n) (taken as
a whole), would have a Material Adverse Effect if such amount were then due and
payable. The Consolidated Companies are subject to no liabilities with respect
to post-retirement medical benefits other than those accrued on ChoicePoint's
financial statements.
(ii) With respect to any Foreign Plan, reasonable reserves
have been established in accordance with prudent business practice or where
required by ordinary accounting practices in the jurisdiction where the Foreign
Subsidiary maintains its principal place of business or in which the Foreign
Plan is maintained. The aggregate unfunded liabilities, after giving effect to
any reserves for such liabilities, with respect to such Foreign Plans, together
with all other liabilities referred to in this Section 4.1(n) (taken as a
whole), would not have a Material Adverse Effect.
19
(o) Possession of Franchises, Licenses, Etc. Each of the
Consolidated Companies possesses all franchises, certificates, licenses, permits
and other authorizations from governmental political subdivisions or regulatory
authorities, that are necessary in any material respect for the ownership,
maintenance and operation of its properties and assets, and none of the
Consolidated Companies is in violation of any thereof in any material respect.
(p) Patents, Trademarks, Licenses, Etc. (i) The
Consolidated Companies have obtained and hold in full force and effect all
patents, trademarks, service marks, trade names, copyrights, licenses and other
such rights, free from burdensome restrictions, which are necessary for the
operation of their respective businesses as presently conducted and where the
result of a failure to obtain and hold such patents, trademarks, service marks,
trade names, copyrights, licenses and other such rights would have a Material
Adverse Effect, and (ii) to the best of its knowledge, no product, process,
method, service or other item presently sold by or employed by any Consolidated
Company in connection with such business infringes any patents, trademark,
service xxxx, trade name, copyright, license or other right owned by any other
person and there is not presently pending, or to its knowledge, threatened, any
claim or litigation against or affecting any Consolidated Company contesting
such Person's right to sell or use any such product, process, method, substance
or other item where the result of such failure to obtain and hold such benefits
or such infringement would have a Material Adverse Effect.
(q) Ownership of Property. Each Consolidated Company has
good and marketable fee simple title to or a valid leasehold interest in all of
its real property and good title to, or a valid leasehold interest in, all of
its other material assets, as such properties are reflected in the most recent
financial statements delivered by ChoicePoint to the Agent, other than
properties disposed of in the ordinary course of business since such date or as
otherwise permitted by the terms of this Master Agreement, subject to no Lien or
title defect of any kind, except Liens permitted under Section 5.2(a). The
Consolidated Companies enjoy peaceful and undisturbed possession under all of
their respective leases.
(r) Financial Condition. On each Closing Date and after
giving effect to the transactions contemplated by this Master Agreement and the
other Operative Documents, including without limitation, the use of the proceeds
of the Funded Amounts as provided in Section 2.2, the Guarantor and each Lessee
is Solvent.
(s) Labor Matters. The Consolidated Companies have
experienced no strikes, labor disputes, slow downs or work stoppages due to
labor disagreements which have had, or would reasonably be expected to have, a
Material Adverse Effect, and, to the best of its knowledge, there are no such
strikes, disputes, slow downs or work stoppages threatened against any
Consolidated Company which if they occurred, would reasonably be expected to
have a Material Adverse Effect. The hours worked and payment made to employees
of the Consolidated Companies have not been in violation in any material respect
of the Fair Labor Standards Act (in the case of Consolidated Companies that are
not Foreign Subsidiaries) or any
20
other applicable law dealing with such matters. All payments due from the
Consolidated Companies, or for which any claim may be made against the
Consolidated Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as liabilities on the
books of the Consolidated Companies in all jurisdictions where the failure to
pay or accrue such liabilities would reasonably be expected to have a Material
Adverse Effect.
(t) Payment or Dividend Restrictions. None of the
Consolidated Companies is party to or subject to any agreement or understanding
restricting or limiting the payment of any dividends or other distributions by
any such Consolidated Company, other than CDB/Infotek.
(u) Outstanding Indebtedness. Schedule 4.1(u) lists all
outstanding Indebtedness of the Consolidated Companies as of June 30, 2001, and
since June 30, 2001, no additional material indebtedness has been incurred by
the Consolidated Companies. There exists no default under the provisions of any
instrument evidencing or securing Indebtedness of ChoicePoint or any of its
Subsidiaries or of any agreement otherwise relating thereto which has had or
would reasonably be expected to have a Material Adverse Effect.
(v) Disclosure. No representation or warranty contained
in this Master Agreement (including the Schedules attached hereto) or in any
other document furnished from time to time pursuant to the terms of this Master
Agreement, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the statements
herein or therein not misleading in any material respect as of the date made or
deemed to be made. There is no fact known to it which is having, or is
reasonably expected to have, a Material Adverse Effect.
(w) Environmental Matters. (i) Neither ChoicePoint nor
any Consolidated Subsidiary is subject to any Environmental Liability which
could have or cause a 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(w), as revised from time to time, to its knowledge, none of the
Properties has been identified on any current or proposed (1) National
Priorities List under 40 C.F.R. ss. 300, (2) CERCLIS list or (3) any list
arising from a state statute similar to CERCLA.
(ii) Except as disclosed on Schedule 4.1(w), as revised
from time to time, to its knowledge, 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 used, produced manufactured,
processed, treated, recycled, generated, stored, disposed of, managed, or
otherwise handled in minimal amounts in
21
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(w), as revised
from time to time, ChoicePoint and each of the Subsidiaries has procured all
Environmental Authorizations necessary for the conduct of its business, and is
in compliance with all Environmental Laws in connection with the operation of
the Properties and ChoicePoint's and each Consolidated Subsidiary's respective
businesses, except in such instances where such failure of compliance would not
have a Material Adverse Effect.
(x) Hazardous Materials - Leased Properties.
(i) Except as described in the related
Environmental Audit, on the Closing Date for each Leased
Property, there are no Hazardous Materials present at, upon,
under or within such Leased Property or released or
transported to or from such Leased Property (except in
compliance in all material respects with all Applicable Law).
(ii) On the related Closing Date, no Governmental
Actions have been taken or are in process or have been
threatened, which could reasonably be expected to subject such
Leased Property, any Lender or the Lessor to any material
Claims or Liens with respect to such Leased Property under any
Environmental Law or would otherwise have a Material Adverse
Effect.
(iii) The related Lessee has, or will obtain on or
before the date required by Applicable Law, all Environmental
Permits necessary to operate each Leased Property, if any, in
accordance with Environmental Laws and is complying with and
has at all times complied with all such Environmental Permits,
except to the extent the failure to obtain such Environmental
Permits or to so comply would not have a Material Adverse
Effect.
(iv) Except as set forth in the related
Environmental Audit or in any notice subsequently furnished by
the related Lessee to the Agent and approved by the Agent in
writing prior to the respective times that the representations
and warranties contained herein are made or deemed made
hereunder, no notice, notification, demand, request for
information, citations, summons, complaint or order has been
issued or filed to or with respect to the related Lessee, no
penalty has been assessed on the related Lessee and no
investigation or review is pending or, to its best knowledge,
threatened by any Governmental Authority or other Person in
each case relating to any Leased Property with respect to any
alleged material violation or liability of the related Lessee
under any Environmental Law.
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To the best knowledge of the related Lessee, no material
notice, notification, demand, request for information,
citations, summons, complaint or order has been issued or
filed to or with respect to any other Person, no material
penalty has been assessed on any other Person and no
investigation or review is pending or threatened by any
Governmental Authority or other Person relating to any Leased
Property with respect to any alleged material violation or
liability under any Environmental Law by any other Person.
(v) Each Leased Property and each portion
thereof are presently in compliance in all material respects
with all Environmental Laws, and, to the best knowledge of the
related Lessee, there are no present or past facts,
circumstances, activities, events, conditions or occurrences
regarding such Leased Property (including without limitation
the release or presence of Hazardous Materials) that would
reasonably be anticipated to (A) form the basis of a material
Claim against such Leased Property, any Funding Party or the
related Lessee, (B) cause such Leased Property to be subject
to any material restrictions on ownership, occupancy, use or
transferability under any Environmental Law, (C) require the
filing or recording of any notice or restriction relating to
the presence of Hazardous Materials in the real estate records
in the county or other appropriate municipality in which such
Leased Property is located, other than notices filed in the
ordinary cause of business, or (D) prevent or materially
interfere with the continued operation and maintenance of such
Leased Property as contemplated by the Operative Documents.
(y) Leased Property. The present condition of each Leased
Property conforms in all material respects with all conditions or requirements
of all existing permits and approvals issued with respect to such Leased
Property, and the related Lessee's future intended use of such Leased Property
under the Lease does not violate any Applicable Law. To the best knowledge of
the related Lessee, no material notices, complaints or orders of violation or
non- compliance have been issued or threatened or contemplated by any
Governmental Authority with respect to any Leased Property or any present or
intended future use thereof. All material agreements, easements and other
rights, public or private, which are necessary to permit the lawful use and
operation of each Leased Property as the related Lessee intends to use such
Leased Property under the Lease and which are necessary to permit the lawful
intended use and operation of all presently intended utilities, driveways, roads
and other means of egress and ingress to and from the same have been, or to the
related Lessee's best knowledge will be, obtained and are or will be in full
force and effect, and the related Lessee has no knowledge of any pending
material modification or cancellation of any of the same.
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SECTION 4.2 Survival of Representations and Effect of Fundings.
(a) Survival of Representations and Warranties. All
representations and warranties made in Section 4.1 shall survive delivery of the
Operative Documents and every Funding, and shall remain in effect until all of
the Obligations are fully and irrevocably paid.
(b) Each Funding a Representation. Each Funding accepted
by a Lessee or the Construction Agent shall be deemed to constitute a
representation and warranty by ChoicePoint and each other Lessee to the effect
of Section 4.1.
SECTION 4.3 Representations of the Lessor. Effective as of the
date of execution hereof, as of each Closing Date and as of each Funding Date,
in each case, with respect to each of the Leased Properties, the Lessor
represents and warrants to the Agent, the Lenders and the Lessees as follows:
(a) Securities Act. The interest being acquired or to be
acquired by the Lessor in such Leased Property is being acquired for its own
account, without any view to the distribution thereof or any interest therein,
provided that the Lessor shall be entitled to assign, convey or transfer its
interest in accordance with Section 6.1.
(b) Due Organization, etc. The Lessor is a limited
partnership duly organized and validly existing in good standing under the laws
of Texas and each state in which a Leased Property is located and has full
power, authority and legal right to execute, deliver and perform its obligations
under the Lease, this Master Agreement and each other Operative Document to
which it is or will be a party.
(c) Due Authorization; Enforceability, etc. This Master
Agreement and each other Operative Document to which the Lessor is or will be a
party have been or will be duly authorized, executed and delivered by or on
behalf of the Lessor and are, or upon execution and delivery will be, legal,
valid and binding obligations of the Lessor enforceable against it in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and by general equitable principles.
(d) No Conflict. The execution and delivery by the Lessor
of the Lease, this Master Agreement and each other Operative Document to which
the Lessor is or will be a party, are not or will not be, and the performance by
the Lessor of its obligations under each will not be, inconsistent with its
Partnership Agreement, do not and will not contravene any Applicable Law
applicable generally to parties providing financing and do not and will not
contravene any provision of, or constitute a default under, any Contractual
Obligation of Lessor, do not and will not require the consent or approval of,
the giving of notice to, the registration with or taking of any action in
respect of or by, any Governmental Authority applicable generally to parties
24
providing financing, except such as have been obtained, given or accomplished,
and the Lessor possesses all requisite regulatory authority to undertake and
perform its obligations under the Operative Documents.
(e) Litigation. There are no pending or, to the knowledge
of the Lessor, threatened actions or proceedings against the Lessor before any
court, arbitrator or administrative agency with respect to any Operative
Document or that would have a material adverse effect upon the ability of the
Lessor to perform its obligations under this Master Agreement or any other
Operative Documents to which it is or will be a party.
(f) Lessor Liens. No Lessor Liens (other than those
expressly created by the Operative Documents) exist on any 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 any Leased Property,
or any portion thereof, to any Lessor Liens (other than those expressly created
by the Operative Documents).
(g) Employee Benefit Plans. The Lessor is not and will
not be making its investment hereunder, and is not performing its obligations
under the Operative Documents, with the assets of an "employee benefit plan" (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA, or
"plan" (as defined in Section 4975(e)(1)) of the Code.
(h) General Partner. The sole general partner of the
Lessor is Atlantic Financial Managers, Inc., and the General Partner is duly
organized and validly existing in good standing under the laws of Texas and each
state in which a Leased Property is located.
(i) Financial Information. (A) The unaudited balance
sheet of the Lessor as of December 31, 2000 and the related statements of
income, partners' capital and cash flows for the year then ended, copies of
which have been delivered to the Agent, fairly present, in conformity with sound
accounting principles, the financial condition of the Lessor as of such date and
the results of operations and cash flows for such period.
(B) Since December 31, 2000, there has been no event,
act, condition or occurrence having a material adverse effect upon the financial
condition, operations, performance or properties of the Lessor, or the ability
of the Lessor to perform in any material respect its obligations under the
Operative Documents.
(j) No Offering. The Lessor has not offered the Note to
any Person in any manner that would subject the issuance thereof to registration
under the Securities Act or any applicable state securities laws.
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(k) Investment Company. The Lessor is not an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4.4 Representations of each Lender. Effective as of the
date of execution hereof, as of each Closing Date and as of each Funding Date,
each Lender represents and warrants to the Lessor and to the Lessees as follows:
(a) Securities Act. The interest being acquired or to be
acquired by such Lender in the Funded Amounts is being acquired for its own
account, without any view to the distribution thereof or any interest therein,
provided that such Lender shall be entitled to assign, convey or transfer its
interest in accordance with Section 6.2.
(b) Employee Benefit Plans. Such Lender is not and will
not be making its investment hereunder, and is not performing its obligations
under the Operative Documents, with the assets of an "employee benefit plan" (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA, or
"plan" (as defined in Section 4975(e)(1)) of the Code.
ARTICLE V.
COVENANTS OF CHOICEPOINT AND THE LESSOR
SECTION 5.1 Affirmative Covenants.
So long as any Commitment remains in effect hereunder or any
Funded Amount shall remain outstanding, ChoicePoint will (unless waived in
writing by the Required Funding Parties):
(a) Corporate Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate existence
(except for mergers, divestitures and consolidations permitted pursuant to
Section 5.2(c), and except where the failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect), its qualification to
do business as a foreign corporation in all jurisdictions where it conducts
business or other activities making such qualification necessary.
(b) Compliance with Laws, Etc. Comply, and cause each of
its Subsidiaries to comply with, all Requirements of Law (including, without
limitation, the Environmental Laws, ERISA and employee benefit laws) and
Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Requirements of Law and Contractual Obligations
would reasonably be expected to have a Material Adverse Effect.
(c) Payment of Taxes and Claims, Etc. Pay, and cause each
of its Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property,
26
and (ii) all claims (including, without limitation, claims for labor, materials,
supplies or services) which might, if unpaid, become a Lien upon its property,
unless, in each case, the validity or amount thereof is being contested in good
faith by appropriate proceedings and adequate reserves are maintained with
respect thereto or the aggregate sum of taxes unpaid is less than $500,000.
(d) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
(e) Visitation, Inspection, Etc. (i) Prior to the
occurrence of a Default, permit, and cause each of its Subsidiaries to permit,
any representative 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 Executive 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 Executive Officers the respective affairs, finances and accounts of the
Lessee and its Subsidiaries. Prior to the occurrence of a Potential Event of
Default or an Event of Default, each Lender shall be entitled to no more than
two (2) such visits and inspections per year.
(ii) After the occurrence of a Default, permit, and cause
each of its Subsidiaries to permit, any representative of any Funding Party at
the Lessees' expense to visit and inspect, in the company of any of the
Executive 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 Executive
Officers the respective affairs, finances and accounts of ChoicePoint and its
Subsidiaries.
(iii) To cooperate and assist, and to cause each of its
Subsidiaries to cooperate and assist, in such visits and inspections set forth
in paragraphs (i) and (ii) above in this Section 5.1(e), in each case at such
reasonable times and as often as may reasonably be desired; provided, however,
that (i) in no event shall any Funding Party have access to information
prohibited by law, and (ii) in the event any Funding Party desires to inspect
confidential matters (which matters shall in no event include financial
information and data of ChoicePoint or its Subsidiaries or other information the
Funding Parties may require in order to determine compliance this Master
Agreement) under this Section, such Funding Party shall executed a
confidentiality agreement relating to such matters, which agreement shall
contain reasonable terms acceptable to such Funding Party and its counsel.
(f) Insurance; Maintenance of Properties.
(i) Maintain or cause to be maintained with financially
sound and reputable insurers, insurance with respect to its properties
and business, and the properties and
27
business of its Subsidiaries, against loss or damage of the kinds
customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in such
amounts as are customary for such companies under similar
circumstances; provided, however, that ChoicePoint may self-insure in
amounts satisfactory to management. Upon the request of the Agent,
ChoicePoint shall file with the Agent a detailed Xxxxx certificate of
insurance stating the names of the insurance companies, the limits of
liability of insurance, the date of expiration thereof, the Property
and risks covered thereby and the insured with respect thereto, and,
within 60 days after notice in writing from the Agent, obtain such
additional insurance as the Required Funding Parties may reasonably
request as a result of a material change in the circumstances or
conditions affecting ChoicePoint's business specifically or its type of
business generally, provided that such additional insurance is
available at a commercially reasonable cost.
(ii) Cause, and cause each of the Consolidated Companies
to cause, all properties used or useful in the conduct of its business
to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of ChoicePoint may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing
in this Section 5.1(f) shall prevent ChoicePoint from discontinuing the
operation or maintenance of any such properties if such discontinuance
is, in the judgment of ChoicePoint, desirable in the conduct of its
business or the business of any Consolidated Company.
(iii) Maintain in full force and effect all material
patents, trademarks, service marks, trade names, copyrights, licenses
and other such rights, free from burdensome restrictions, which are
necessary for the operation of the businesses of the Consolidated
Companies as presently conducted, where the result of failure to obtain
and hold such benefits would have a Material Adverse Effect.
(g) Reporting Covenants. Furnish to the Agent and each
Funding Party:
(i) Annual Financial Statements. As soon as available and
in any event within 105 days after the end of each fiscal year of
ChoicePoint, balance sheets of the Consolidated Companies as at the end
of such year, presented on a consolidated basis, and the related
statements of income, and cash flows of the Consolidated Companies for
such fiscal year, presented on a consolidated basis, setting forth in
each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and accompanied by a report thereon of the
independent public accountants of comparable recognized national
standing, which such report shall be unqualified as to going concern
and scope of audit and shall state that such financial statements
present fairly in all
28
material respects the financial condition as at the end of such fiscal
year on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal
year in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards;
(ii) Quarterly Financial Statements. As soon as available
and in any event within 60 days after the end of each fiscal quarter of
ChoicePoint (other than the fourth fiscal quarter), balance sheets of
the Consolidated Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal
quarter and for the portion of the ChoicePoint's fiscal year ended at
the end of such quarter, presented on a consolidated basis setting
forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of ChoicePoint's
previous fiscal year, all in reasonable detail and accompanied by a
certification by the chief financial officer of ChoicePoint that such
financial statements fairly present in all material respects the
financial condition of the Consolidated Companies as at the end of such
fiscal quarter on a consolidated basis, and the results of operations
and statements of cash flows of the Consolidated Companies for such
fiscal quarter and such portion of ChoicePoint's fiscal year, in
accordance with GAAP consistently applied (subject to normal year-end
audit adjustments and the absence of certain footnotes);
(iii) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (i) and (ii)
above, a certificate (with supporting details) of the chief financial
officer of ChoicePoint substantially in the form of Exhibit E attached
hereto (the "Compliance Certificate") (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
financial statements during the period covered thereby, there exists no
Event of Default and no Potential Event of Default, or if there exists
an Event of Default or a Potential Event of Default, specifying the
nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such
fiscal year or such fiscal quarter with Section 5.1(h) and Sections
5.2(a), (d) and (e);
(iv) Auditor's Statement. Together with the financial
statements required pursuant to subsection (i) above, a statement of
the accountants who prepared the report referred to therein, to the
effect that, nothing has come to their attention which would cause them
to believe that a Default or Event of Default existed as of the date of
such financial statements, or if there existed a Default or Event of
Default, specifying the nature thereof;
(v) Notice of Default. Promptly, and no later than five
(5) Business Days after any Executive Officer of ChoicePoint has notice
or knowledge of the occurrence of
29
an Event of Default or a Default, a certificate of the chief financial
officer of ChoicePoint specifying the nature thereof and the proposed
response thereto;
(vi) Litigation and Investigations. Promptly, and no later
than ten (10) Business Days after any Executive Officer of ChoicePoint
has notice or knowledge thereof, notice of the institution of or any
material adverse development in any material action, suit or proceeding
or any governmental investigation or any arbitration, before any court
or arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or any material property of
any thereof, or the threat of any such action, suit, proceeding,
investigation or arbitration;
(vii) Environmental Notices. Promptly, and no later than
ten (10) Business Days after any Executive Officer of ChoicePoint has
notice or knowledge thereof, notice of any actual or alleged violation,
or notice of any action, claim or request for information, either
judicial or administrative, from any governmental authority relating to
any actual or alleged claim, notice of potential responsibility under
or violation of any Environmental Law, or any actual or alleged spill,
leak, disposal or other release of any waste, petroleum product, or
hazardous waste or Hazardous Substance by any Consolidated Company
which could result in a Material Adverse Effect;
(viii) ERISA. (1) Promptly, and no later than ten (10)
Business Days after any Executive Officer of ChoicePoint has notice or
knowledge thereof, (A) with respect to any Plan maintained by any
Consolidated Company or any ERISA Affiliate thereof, or any trust
established thereunder, notice of a "reportable event" described in
Section 4043 of ERISA and the regulations issued from time to time
thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations); or
(B) any other event which could subject any Consolidated Company to any
tax, penalty or liability under Title I or Title IV of ERISA or Chapter
43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 404 or 419 of the Tax Code, or any tax,
penalty or liability under any Requirement of Law applicable to any
Foreign Plan, where any such taxes, penalties or liabilities could
result in a Material Adverse Effect;
(2) Promptly after such notice must be provided
to the PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or
412 of the Tax Code with respect to any Plan maintained by any
Consolidated Company or any ERISA Affiliate thereof;
(3) Promptly after receipt, any notice received
by any Consolidated Company or any ERISA Affiliate thereof concerning
the intent of the PBGC or any other governmental authority to terminate
a Plan maintained or contributed to by such
30
Consolidated Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Consolidated Company
or ERISA Affiliate under Title IV of ERISA or Chapter 43 of the Tax
Code;
(4) Upon the request of the Agent, promptly upon
the filing thereof with the Internal Revenue Service ("IRS") or the
Department of Labor ("DOL"), a copy of IRS Form 5500 or annual report
for each Plan maintained by any Consolidated Company or ERISA Affiliate
thereof which is subject to Title IV of ERISA;
(5) Upon request of the Agent, but no more
frequently than twice each calendar year, (A) true and complete copies
of any and all documents, government re ports and IRS determination or
opinion letters or rulings for any Plan maintained or contributed to by
any Consolidated Company from the IRS, PBGC or DOL, received within the
preceding 12 months (B) any reports filed with the IRS, PBGC or DOL
with respect to a Plan maintained or contributed to by the Consolidated
Companies or any ERISA Affiliate thereof filed within the preceding 12
months, or (C) a current statement of withdrawal liability for each
Multiemployer Plan maintained or contributed to by any Consolidated
Company or any ERISA Affiliate thereof;
(6) Promptly, and no later than (5) Business
Days after any Executive Officer has notice or knowledge thereof,
notice that (i) any material contributions to any Foreign Plan have not
been made by the required due date for such contribution and such
default cannot immediately be remedied, (ii) any Foreign Plan is not
funded to the extent required by the law of the jurisdiction whose law
governs such Foreign Plan based on the actuarial assumptions reasonably
used at any time, or (iii) a material change is anticipated to any
Foreign Plan that may have a Material Adverse Effect.
(ix) Liens. Promptly, and no later than five (5) Business
Days after any Executive Officer of ChoicePoint has notice or knowledge
thereof, notice of the filing of any federal statutory Lien, tax or
other state or local government Lien or any other Lien affecting their
respective properties, other than those Liens expressly permitted by
Section 5.2(a);
(x) Public Filings, Etc. Promptly upon the filing thereof
or otherwise becoming available, copies of all financial statements,
annual, quarterly and special reports, proxy statements and notices
sent or made available generally by ChoicePoint to its public security
holders, of all regular and periodic reports and all registration
statements and prospectuses, if any, filed by any of them with any
securities exchange, and of all press releases and other statements
made available generally to the public containing material developments
in the business or financial condition of ChoicePoint and the other
Consolidated Companies;
31
(xi) New Material Subsidiaries. Within 30 days after the
formation, acquisition or existence of any new Material Subsidiary, or
any other event resulting in the creation of a new Material Subsidiary,
or the domestication of any Foreign Subsidiary, notice of the formation
or acquisition of such Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which it
will be engaged, and such other information as the Agent may request;
(xii) Default under Other Debt. Immediately upon its
receipt thereof, copies of any notice received by ChoicePoint or any
other Consolidated Company from the holder(s) of Indebtedness of the
Consolidated Companies (or from any trustee, agent, attorney, or other
party acting on behalf of such holder(s)) in an amount which, in the
aggregate, exceeds $5,000,000, where such notice states or claims the
existence or occurrence of any default or event of default with respect
to such Indebtedness under the terms of any indenture, loan or credit
agreement, debenture, note, or other document evidencing or governing
such Indebtedness;
(xiii) Complete Lien Search Results. As soon as available
and in any event within 30 days after the initial Closing Date, copies
of all UCC, judgment and tax lien search results for all ChoicePoint's
locations in the United States other than field offices at which is
located tangible personal property (having an aggregate value not in
excess of $6,000,000); and
(xiv) Other Information. With reasonable promptness, any
other information as the Agent on behalf of any Funding Party may
reasonably request from time to time.
(h) Financial Covenants.
(i) Fixed Charge Coverage Ratio. Maintain as of the last
day of each fiscal quarter, a Fixed Charge Coverage Ratio, calculated
for the fiscal quarter then ended and the immediately preceding three
fiscal quarters, equal to or greater than 2.5:1.0.
(ii) Funded Debt to Consolidated EBITDA. Maintain as of
the last day of each fiscal quarter, a maximum ratio of Funded Debt to
Consolidated EBITDA, calculated for the fiscal quarter then ended and
the immediately preceding three fiscal quarters, of less than or equal
to (A) 3.5:1.0 for all fiscal quarters ending on or prior to the
earlier of (1) the effective date of any revolving credit agreement
entered into in replacement of the Credit Agreement and (2) September
30, 2002 and (B) 3.0:1.0 for all periods thereafter.
(i) Intellectual Property. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its rights, franchises,
and licenses, and its patents and copyrights (for the scheduled duration
thereof), trademarks, trade names, and service marks,
32
necessary or desirable in the normal conduct of its business, except where the
failure to maintain such rights, franchises, and licenses, patents, copyrights
trademarks, trade names, and service marks would reasonably be expected to have
a Material Adverse Effect.
(j) Amendments to Credit Agreement. Provide the Agent
with copies of any and all amendments to, and replacements of, the Credit
Agreement, and copies of any other revolving credit facility entered into by
ChoicePoint. ChoicePoint agrees to enter into amendments to this Master
Agreement and the other Operative Documents to make the covenants,
representations and Events of Default set forth herein and therein substantially
the same as those covenants, representations and/or events of default set forth
in such amendment, replacement or other credit facility, if any, that are
identified by the Agent in a request by the Agent to ChoicePoint.
SECTION 5.2 Negative Covenants. So long as any Commitment remains
in effect hereunder or any Funded Amount shall remain unpaid shall remain
outstanding, ChoicePoint will not and will not permit any Subsidiary to (unless
waived in writing by the Required Funding Parties):
(a) Liens. Create, incur, assume or suffer to exist any
Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(i) Liens existing on the initial Closing Date (A)
securing an aggregate amount not in excess of $2,400,000 and disclosed
in the lien search report delivered under Section 5.1(h)(xiii), (B)
securing obligations of CDB/Infotek owing to ChoicePoint, or (C)
securing an amount not to exceed $250,000 in the aggregate;
(ii) Liens on any property securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the
acquisition cost of such property and any refinancing thereof,
provided that such Lien does not extend to any other property and
further provided that the amount of Indebtedness secured by such Liens
does not exceed $10,000,000 in aggregate principal amount at any one
time outstanding;
(iii) Liens for taxes not yet due and payable, and Liens
for taxes which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(iv) 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 and
with respect to which adequate reserves are being maintained;
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(v) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(vi) zoning, easements and restrictions on the use of real
property which do not materially impair the use of such property;
(vii) Liens arising under ERISA;
(viii) rights in property reserved or vested in any
governmental authority which do not materially impair the use of such
property;
(ix) Liens on assets of newly acquired Subsidiaries which
were in existence at the time of acquisition and not created in
contemplation thereof;
(x) Liens granted under the Operative Documents and Liens
granted in connection with the Existing Lease; and
(xi) Liens (other than those permitted by paragraphs (i)
through (x) of this Section 5.2(a)) securing Indebtedness in an
aggregate principal amount outstanding at any time not to exceed
fifteen percent (15%) of the Consolidated Net Worth of the Consolidated
Companies as of the last day of the immediately preceding fiscal
quarter of ChoicePoint.
(b) Guaranties. Create, incur, assume, guarantee, suffer
to exist or otherwise become liable on or with respect to, directly or
indirectly, any Guaranties other than:
(i) endorsements of instruments for deposit or collection
in the ordinary course of business;
(ii) guarantees of Indebtedness owed by any Consolidated
Company to another Consolidated Company; and
(iii) Guaranties of Indebtedness to the extent such
Indebtedness is permitted under Section 5.1(h)(ii).
(c) Mergers, Consolidations. Merge or consolidate with
any other Person, except that the foregoing restrictions shall not be applicable
to:
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(i) mergers or consolidations of (x) any Subsidiary with
any other Subsidiary or (y) any Subsidiary with ChoicePoint; or
(ii) mergers or consolidations in which any Person engaged
in businesses in which ChoicePoint is engaged as of the initial Closing
Date or substantially related thereto merges or consolidates with
ChoicePoint or any of its Subsidiaries where the surviving corporation
is ChoicePoint or such Subsidiary; or
(iii) the merger of ChoicePoint Capital Corporation into
ChoicePoint Capital, Inc.;
provided that before and after giving effect to any such merger or
consolidations and any Funded Debt incurred by ChoicePoint or such Subsidiary in
connection with such merger or consolidation, (x)ChoicePoint is and will be in
compliance with Section 5.1(h) hereof, and if the consideration paid by
ChoicePoint or such Subsidiary in connection with such merger or consolidation
is greater than $75,000,000, ChoicePoint has delivered pro forma financial
covenants calculations demonstrating such compliance, in such detail and using
such form of presentation of historical and forecasted financial information as
may be satisfactory to the Agent with copies provided to each Funding Party
(based on the projected Fixed Charges or Funded Debt, as the case may be, for
the immediately succeeding four fiscal quarters (including Fixed Charges
incurred as a result of the incurrence of any such Funded Debt) and the
historical Consolidated EBIT (including the Consolidated EBIT of such Person));
and (y) no other Default or Event of Default exists.
(d) Asset Sales. Sell, lease or otherwise dispose of its
accounts, property, stock of its Subsidiaries or other assets; provided,
however, that the foregoing restrictions on Asset Sales shall not be applicable
to:
(i) sales, leases, transfers or dispositions of assets of
any Consolidated Company to ChoicePoint;
(ii) sales of inventory in the ordinary course of business
and unneeded, worn out or obsolete equipment;
(iii) sales of accounts receivable (or of undivided
ownership interests therein) pursuant to the asset securitization
facilities;
(iv) Asset Sales comprised of assets of any Consolidated
Company where, on the date of execution of a binding obligation to make
such Asset Sale, the assets which are the subject of the proposed Asset
Sale, together with all other such Asset Sales of the Consolidated
Companies during the current fiscal year of ChoicePoint, did not
generate
35
ten percent (10%) or more of Consolidated EBITDA for the immediately
preceding fiscal year of ChoicePoint;
provided that notwithstanding the foregoing, no transaction pursuant to clauses
(iii) or (iv) above shall be permitted if any Default or Event of Default exists
at the time of such transaction or would exist as a result of such transaction.
(e) Investments, Loans, Etc. Make, permit or hold any
Investments other than:
(i) Investments in the stock of Subsidiaries of
ChoicePoint existing as of the Initial Closing Date or existing as
Subsidiaries of ChoicePoint immediately prior to the making of such
Investment, Investments in the form of loans and advances by
ChoicePoint to any Subsidiary and Investments in the stock of
Receivables Subsidiaries of ChoicePoint existing as of the date hereof;
(ii) Investments in the stock or other assets of any other
Person that is engaged in a business permitted by Section 5.2(j)
hereof; provided, that after giving effect to such Investment and any
Funded Debt incurred by ChoicePoint or such Subsidiary in connection
with making such Investment, (x) ChoicePoint is and will be in
compliance with Section 5.1(h) hereof, and if the Investment is greater
than $75,000,000, ChoicePoint has delivered pro forma financial
covenants calculations demonstrating such compliance, in such detail
and using such form of presentation of historical and forecasted
financial information as may be satisfactory to the Agent (based on the
projected Fixed Charges or Funded Debt, as the case may be, for the
immediately succeeding four fiscal quarters (including Fixed Charges
incurred as a result of the incurrence of any such Funded Debt) and the
historical Consolidated EBIT (including the Consolidated EBIT of such
Person)); (y) no other Default or Event of Default exists hereunder;
and (z) as a result of such Investment, such Person becomes a
Subsidiary of ChoicePoint;
(iii) marketable direct obligations of the United States or
any agency thereof, or obligations guaranteed by the United States or
any agency thereof, in each case supported by the full faith and credit
of the United States and maturing within one year from the date of
creation thereof;
(iv) Investments received in settlement of Indebtedness
created in the ordinary course of business, and the endorsement of
negotiable instruments in the ordinary course of business;
(v) commercial paper issued by corporations, each of
which has a consolidated net worth of not less than $500,000,000, and
conducts a substantial portion
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of its business in the United States of America, maturing no more than
365 days from the date of acquisition thereof and having as at any date
of determination a rating of P-1, P-2 or P-3 from Standard & Poor's or
a rating of X-0, X-0 or A-3 from Moody's;
(vi) money market or similar depository accounts,
certificates of deposit or bankers acceptances, in each case redeemable
upon demand or maturing within one year from the date of acquisition
thereof, issued by commercial banks incorporated under the laws of the
United States of America or any state thereof or the District of
Columbia, provided (x) each such bank has at any date of determination
combined capital and surplus of not less than $1,000,000,000 and a
rating of its long-term debt of at least A by Standard & Poor's or at
least A by Moody's or a long-term deposit rating of at least A issued
by Standard & Poor's or at least A issued by Moody's, (y) the aggregate
amount of all such certificates of deposit issued by such bank are
fully insured at all times by the Federal Deposit Insurance Company;
(vii) Loans and advances to officers and employees of the
Consolidated Companies made in the ordinary course of business,
including, without limitation, loans to executives for the purchase of
stock of the Lessee pursuant to a program established by the Board of
Directors or a committee thereof from time to time in an amount not to
exceed $15,000,000;
(viii) Investments in joint ventures in an aggregate amount
during any fiscal year of ChoicePoint not to exceed an amount equal to
ten percent (10%) of ChoicePoint's Consolidated Net Worth as of the end
of the immediately preceding fiscal year of ChoicePoint; and
(ix) Investments (other than those permitted by paragraphs
(i) through (viii) above) in an aggregate amount during any fiscal year
of ChoicePoint not to exceed an amount equal to five (5%) percent of
ChoicePoint's Consolidated Net Worth as of the end of the immediately
preceding fiscal year of ChoicePoint.
(f) Transactions with Affiliates. Enter into any
transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate of any Consolidated Company (but
excluding any Affiliate which is also a Subsidiary that is directly or
indirectly wholly owned by ChoicePoint), other than on terms and conditions
substantially as favorable to such Consolidated Company as would be obtained by
such Consolidated Company at the time in a comparable arm's-length transaction
with a Person other than an Affiliate; and
(g) ERISA. (i) Take or fail to take any action with
respect to any Plan maintained or contributed to by any Consolidated Company or,
with respect to its ERISA Affiliates, any Plans which are subject to Title IV of
ERISA or to continuation health care requirements for group health plans under
Section 4980B of the Tax Code, including without
37
limitation (1) establishing any such Plan, (2) amending any such Plan (except
where required to comply with applicable law), (3) terminating or withdrawing
from any such Plan, or (4) incurring an amount of unfunded benefit liabilities,
as defined in Section 4001(a)(18) of ERISA, or any withdrawal liability under
Title IV of ERISA with respect to any such Plan, or any unfunded liabilities
under any Foreign Plan, without first obtaining the written approval of the
Required Lenders, where such actions or failures could result in a Material
Adverse Effect; or
(ii) Permit a Plan or Foreign Plan maintained or contributed to by
a Consolidated Company or a Plan subject to Title IV of ERISA of any of its
ERISA Affiliates:
(1) to fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of such Plan or
Foreign Plan, Section 412 of the Tax Code or Section 302 of ERISA for
any plan year or a waiver of such standard is sought or granted with
respect to such Plan or Foreign Plan under applicable law, the terms of
such Plan or Foreign Plan or Section 412 of the Tax Code or Section 303
of ERISA; or
(2) to be terminated or the subject of termination
proceedings under applicable law or the terms of such Plan or Foreign
Plan; or
(3) to require a Consolidated Company to provide security
under applicable law, the terms of such Plan or Foreign Plan, Section
401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(4) to result for any reason, in a liability (including
without limitation, withdrawal liability) to a Consolidated Company
under applicable law, the terms of such Plan or Foreign Plan, or Title
IV of ERISA;
if the result from any such failure, waiver, termination or other event a
liability to the PBGC (or any similar Person with respect to any Foreign Plan),
a Plan or any other Person that would have a Materially Adverse Effect.
(h) Additional Negative Pledges. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon any
asset of any Consolidated Company, other than the prohibitions and restrictions
contained in this Master Agreement.
(i) Changes in Business. Enter into any business which is
substantially different from that presently conducted by the Consolidated
Companies taken as a whole, which includes providing risk management and fraud
prevention information and related technology solutions to the property and
casualty insurance industry, life and health insurance industry and other
industries, (including, without limitation, (1) providing automated and
traditional
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underwriting and claim information services to assist U.S. insurance companies
in assessing the insurability of individuals and property and the validity of
insurance claims, (2) providing background investigations, (3) performing
paramedical exams, (4) furnishing access to motor vehicles reports, (5)
maintaining a database of claims histories, (5) providing claim verification and
investigative services to both the property and casualty and the life and health
insurance markets, (6) providing pre-employment background investigations,
pre-employment and regulatory compliance drug testing services and public record
information to other corporate and government organizations), unless such
business is a strategic extension of the business of the Consolidated Companies
as of the Initial Closing Date.
(j) Limitation on Payment Restrictions Affecting
Consolidated Companies. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions to
ChoicePoint or any other Subsidiary on such Consolidated Company's stock,
provided that this provision shall not affect CBD/Infotek's payment of dividends
or distributions on its stock to ChoicePoint, or (ii) pay any indebtedness owed
to ChoicePoint or any other Consolidated Company, or (iii) transfer any of its
property or assets to ChoicePoint or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit Documents or the
Operative Documents.
(k) Changes in Fiscal Year. Change the calculation of the
fiscal year of ChoicePoint.
(l) Wetlands. Not undertake any development activities on
the Leased Property located in Xxxxxx County, Georgia until such time as
ChoicePoint has provided evidence reasonably satisfactory to the Agent of the
limits of the wetlands and the floodplain with respect to such Leased Property.
SECTION 5.3 Environmental Notices. Upon becoming aware of such
matters, each 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 5.4 Environmental Matters. Except as set forth in
Schedule 5.4, as revised from time to time, neither ChoicePoint nor any
Consolidated Subsidiary will, and ChoicePoint 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 used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed, managed, or otherwise handled in
39
minimal amounts in the ordinary course of business in compliance with all
applicable Environmental Laws in each case where the failure to comply would not
have a Material Adverse Effect.
SECTION 5.5 Environmental Release. ChoicePoint 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 5.6 Further Assurances. Upon the written request of the
Agent or any Funding Party, each Lessee, at its own cost and expense, will cause
all financing statements (including precautionary financing statements), fixture
filings and other similar documents to be signed by such Lessee and recorded or
filed at such places and times in such manner as may be necessary or requested
by the Agent or such Funding Party to preserve, protect and perfect the interest
of the Agent and the Funding Parties in the Leased Properties as contemplated by
the Operative Documents.
SECTION 5.7 Additional Required Appraisals. If, as a result of
any change in Applicable Law after the date hereof, an appraisal of all or any
of the Leased Properties is required during the Lease Term under Applicable Law
with respect to any Funding Party's interest therein, such Funding Party's
Funded Amount with respect thereto or the Operative Documents, then the related
Lessee shall pay the reasonable cost of such appraisal.
SECTION 5.8 Lessor's Covenants. The Lessor covenants and agrees
that, unless the Agent, ChoicePoint and the Lenders shall have otherwise
consented in writing:
(a) the proceeds of the Loans received from the Lenders
will be used by the Lessor solely to acquire the related Leased Property and to
pay the Construction Agent, as agent for the Lessor, or the related Lessee for
Construction Costs. No portion of the proceeds of the Loans will be used by the
Lessor (i) in connection with, whether directly or indirectly, any tender offer
for, or other acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation or (ii) directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock;
(b) it shall not engage in any business or activity, or
invest in any Person, except for activities similar to its activities conducted
on the date hereof, the Transaction and lease transactions similar to the
Transaction;
(c) it will maintain tangible net worth in an amount no
less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated
assuming no reduction in the value of any leased property from its original cost
to the Lessor) and will at all times be solvent (as defined in the Bankruptcy
Code);
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(d) it will deliver to the Agent and ChoicePoint, as soon
as available and in any event within 90 days after the end of each fiscal year,
a balance sheet of the Lessor as of the end of such fiscal year and the related
statements of income, partners' capital and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, prepared in accordance with sound accounting principles, together
with copies of its tax returns, all certified by an officer of the General
Partner (and if the Lessor ever prepares audited financial statements, it shall
deliver copies thereof to the Agent and ChoicePoint);
(e) it will permit the Agent and its 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, in each case during normal
business hours and upon reasonable notice;
(f) it shall not consent to or permit the creation of any
easement or other restriction against any Leased Property other than as
permitted pursuant to Article VI of the Lease; and
(g) it shall not incur or permit to exist, and will
promptly discharge each Lessor Lien and shall indemnify the Lenders and the
Lessees for any loss, cost, expense or diminution in value of any Leased
Property resulting from, or incurred as a result of, such Lessor Liens.
ARTICLE VI.
TRANSFERS BY LESSOR AND LENDERS;
DISTRIBUTION OF PAYMENTS AND PROCEEDS
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 any Leased Property or any of the Operative Documents, except to a
Lessee in accordance with the Operative Documents without the prior written
consent of the Lenders and, unless an Event of Default has occurred and is
continuing, ChoicePoint. Any proposed transferee of the Lessor shall make the
representation set forth in Section 4.3 to the other parties hereto.
SECTION 6.2 Lender Transfers.
(a) Any Lender may make, carry or transfer Loans at, to
or for the account of, any of its branch offices or the office of an Affiliate
of such Lender.
(b) Each Lender may assign all or a portion of its
interests, rights and obligations under this Master Agreement and the Loan
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) to any Person; provided, however, that (i) the
41
Agent and, except during the continuance of a Potential Event of Default or
Event of Default, ChoicePoint must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed) unless
such assignment is to another Lender or Affiliate of the assigning Lender, (ii)
unless such Lender is assigning all of its Commitment, after giving effect to
such assignment, the Commitment of both the assignor and the assignee is at
least $5,000,000 and is an integral multiple of $1,000,000 and (iii) the parties
to each such assignment shall execute and deliver to the Agent an Assignment and
Acceptance, and, a processing and recordation fee of $2,500. Any such assignment
of the Loans shall include both the A Loans and the B Loans of such assigning
Lender, on a pro rata basis. From and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Master Agreement and the Loan
Agreement.
(c) Each Lender may, without the consent of ChoicePoint
or any Lessee, sell participations to one or more banks or other entities in all
or a portion of its rights and obligations under this Master Agreement and the
Loan Agreement (including all or a portion of its Commitments in the Loans owing
to it), provided, however, that (i) no Lender may sell a participation in its
Commitment (after giving effect to any permitted assignment hereunder) in an
amount in excess of fifty percent (50%) of such Commitment (provided that (1)
sales of participations to an Affiliate of Lender shall not be included in such
calculation and (2) no such maximum amount shall be applicable to any
participation sold at any time there exists an Event of Default), (ii) such
Lender's obligations under this Master Agreement and the Loan Agreement shall
remain unchanged, (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iv) the participating
bank or other entity shall not be entitled to any greater benefit than its
selling Lender under the cost protection provisions contained in Sections 7.4
and 7.5 of this Master Agreement, and (v) ChoicePoint, each Lessee, the Agent
and the other Lenders shall continue to deal solely and directly with each
Lender in connection with such Lender's rights and obligations under this Master
Agreement and the other Operative Documents, and such Lender shall retain the
sole right to enforce the obligations of Lessor relating to the Loans and to
approve any amendment, modification or waiver of any provisions of this Master
Agreement and the Loan Agreement (except that such Lender may permit the
participant to approve any amendment, modification or waiver which would reduce
the principal of or the interest rate on its Loan, extend the term of such
Lender's Commitment, reduce the amount of any fees to which such participant is
entitled or extend the final scheduled payment date of any Loan, it being
understood that in all events, the other parties hereto may conclusively rely on
such Lender's approval of any such amendment, modification or waiver and shall
have no obligation to ascertain whether such participant has approved such
amendment, modification or waiver). Any Lender selling a participation hereunder
shall provide prompt written notice to the Agent of the name of such
participant.
(d) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation, pursuant
to this Section, disclose to the
42
assignee or participant or proposed assignee or participant any information
relating to ChoicePoint or its Subsidiaries furnished to such Lender by or on
behalf of ChoicePoint. With respect to any disclosure of confidential,
non-public, proprietary information, such proposed assignee or participant shall
agree to use the information only for the purpose of making any necessary credit
judgments with respect to this facility and not to use the information in any
manner prohibited by any law, including without limitation, the securities laws
of the United States. The proposed participant or assignee shall agree not to
disclose any of such information except as permitted by this Master Agreement.
The proposed participant or assignee shall further agree to return all documents
or other written material and copies thereof received from any Lender, the Agent
or any Lessee relating to such confidential information unless otherwise
properly disposed of by such entity.
(e) Any Lender may at any time assign all or any portion
of its rights under this Master Agreement and the Note to a Federal Reserve Bank
without complying with the requirements of paragraph (b) above; provided that no
such assignment shall release such Lender from any of its obligations hereunder.
(f) The Lenders hereby acknowledge and agree that the
Lessees shall have the right to the quiet enjoyment of the Leased Properties
pursuant to the Lease, whether or not a Loan Event of Default that is not an
Event of Default has occurred and is continuing, so long as no Event of Default
has occurred and is continuing.
SECTION 6.3 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 pro rata to the Funding Parties to be applied to the
amounts of accrued and unpaid interest (including overdue interest) on the Loans
and accrued and unpaid Yield (including overdue Yield).
(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 in accordance with the Operative Documents.
SECTION 6.4 Distribution and Application of Purchase Payment.
With respect to any Leased Property, the payment by a Lessee of:
(a) the purchase price for a consummated sale of such
Leased Property received by the Agent in connection with such Lessee's exercise
of the Purchase Option or Partial Purchase Option under Section 14.1 of the
Lease or such Lessee's or the Construction Agent's exercise of its option to
purchase such Leased Property under Section 5.3 of the Construction Agency
Agreement, or
43
(b) the payment payable in connection with such 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 Leased Property Balance therefor in accordance
with Section 10.1 or Section 10.2 of the Lease,
shall be distributed by Agent as promptly as possible, to the Funding Parties
pro rata in accordance with, and for application to, their respective Funding
Party Balances in respect of such Leased Property or Properties (including both
that portion of the A Loans and that portion of the B Loans allocated to such
Leased Property or Properties).
SECTION 6.5 Distribution and Application to Funding Party
Balances of Lessee Payment of Recourse Deficiency Amount Upon Exercise of
Remarketing Option. With respect to any Leased Property, the payment by a Lessee
of the Recourse Deficiency Amount to the Agent on the Lease Termination Date in
accordance with Section 14.6 or Section 14.7 of the Lease following the Lessees'
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 in respect
of such Leased Property. With respect to any Leased Property, the payment by a
Lessee or the Construction Agent of the Construction Failure Payment with
respect thereto pursuant to the Construction Agency Agreement shall be applied
by the Agent, first to the accrued and unpaid interest on, and the outstanding
principal of, the A Loans in respect of such Leased Property, second to the
accrued and unpaid interest on, and outstanding principal of, the B Loans
related to such Leased Property and third to the accrued and unpaid Yield on,
and outstanding Lessor Invested Amount related to such Leased Property.
SECTION 6.6 Distribution and Application to Funding Party
Balances of Remarketing Proceeds of Leased Property. (a) Any payments received
by the Lessor as proceeds from the sale of any Leased Property sold pursuant to
the Lessees' exercise of the Remarketing Option pursuant to Section 14.6 or 14.7
of the Lease, shall be distributed (or applied, in the case of clause third
below) by the Lessor as promptly as possible (it being understood that any such
payment received by the Lessor on a timely basis and in accordance with the
provisions of the Lease shall be distributed on the date received in the funds
so received) in the following order of priority:
first, to the extent not previously deducted from such
proceeds, to the Agent and the Funding Parties as reimbursement for any
and all reasonable remarketing, sale, closing or other transfer costs,
prorations or commissions (including broker fees, appraisal costs,
legal fees and expenses and transfer taxes), paid or incurred by the
Agent or any Funding Party and not reimbursed by the Lessees, pro rata
according to the amount of such costs and fees;
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second, to the Lenders pro rata for application to their B
Loans in respect of all of the Leased Properties, an amount equal to
their B Loans in respect of all of the Leased Properties;
third, to the Lessor for application to the Lessor's Invested
Amounts in respect of all of the Leased Properties, an amount equal to
the Lessor's Invested Amounts in respect of all of the Leased
Properties;
fourth, to the Funding Parties pro rata for application to any
other amount owing to the Funding Parties under the Operative Documents
(including accrued and unpaid interest on the Loans, accrued and unpaid
Yield and any outstanding principal of the A Loans), an amount equal to
such other amounts; and
fifth, (i) if sold by a Lessee pursuant to Section 14.6 of the
Lease, the excess, if any, to such Lessee, and (ii) otherwise, the
excess, if any, to the Lessor.
(b) Any payments received by the Lessor as proceeds from the sale
of any Leased Property sold following the payment of the Construction Failure
Payment shall be distributed (or applied, as appropriate) by the Lessor as
promptly as possible (it being understood that any such payment received by the
Lessor on a timely basis and in accordance with the provisions of the
Construction Agency Agreement shall be distributed on the date received in the
funds so received) in the following order of priority:
first, to the Funding Parties or the Agent, as the case may
be, in reimbursement of all reasonable costs, expenses and taxes, if
any, incurred by any of them to complete the construction of such
Leased Property, maintain and insure such Leased Property, remarket
such Leased Property and sell such Leased Property, pro rata according
to the amount of such costs, expenses and taxes;
second, to the Lenders pro rata for application to their
Funding Party Balances in respect to such Leased Property (including
both that portion of the A Loans and that portion of the B Loans
allocated to such Leased Property), an amount equal to such Funding
Party Balances in respect of such Leased Property; and
third, to the Lessor.
SECTION 6.7 Distribution and Application of Payments Received
When an Event of Default Exists or Has Ceased to Exist Following Rejection of
the 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 a
Lessee described in Article XII(f) of the Lease), as
45
(i) proceeds from the sale of any or all 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 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 reasonably expended by it
in connection with such 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 in respect of all of the Leased Properties, an
amount equal to such Funding Party Balances;
third, to the Lessor for application to its Funding Party
Balances in respect of all of the Leased Properties, an amount equal to
such Funding Party Balances; and
fourth, to the related Lessee or the Person or Persons
otherwise legally entitled thereto, the excess, if any.
(b) Proceeds of Recoveries from Lessee. Any payments
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 a
Lessee described in Article XII(f) of the Lease), from a Lessee as a payment in
accordance with the Lease shall be paid to the Agent as promptly as possible,
and shall then be distributed or applied by the Agent as promptly as possible in
the order of priority set forth in paragraph (a) above.
SECTION 6.8 Distribution of Other Payments. All payments under
Section 7.6 of this Master Agreement shall be made first, to the Funding
Parties, 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 6, 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 6 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 6.9 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
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this Section 6 on such Business Day. Payments received by the Agent in
immediately available funds after 12:00 p.m. (noon), Atlanta, Georgia time shall
be distributed to the Funding Parties in accordance with and to the extent
provided in this Section 6 on the next Business Day.
SECTION 6.10 Release of Leased Properties. (a) If one or more of
the Lessees shall at any time purchase any or all of the Leased Properties
pursuant to Section 13.3 or Article 14 of the Lease, or if any or all of the
Leased Properties shall be sold in accordance with, and the Lessees otherwise
satisfy each of the obligations and conditions set forth in, Section 14.6 of the
Lease in respect thereof, then, upon application of such amounts to prepay the
related Loans pursuant to this Master Agreement and the Loan Agreement and the
Agent's and the Lenders' receipt of all accrued interest and any other payments
due and owing from the Lessees and/or the Lessor to the Agent and the Lenders on
such date in respect thereof, such Leased Property or Properties, as the case
may be, shall be released from the applicable Mortgage and the Assignment of
Lease and Rents, to the extent relating to such Leased Property or Properties.
(b) Upon the termination of the Lenders' Commitments and
the payment in full of all of the Loans and all other amounts owing by the
Lessees and/or the Lessor hereunder or under any other Operative Document to the
Lessor, the Agent and the Lenders (other than unasserted indemnities), the
Leased Properties shall be released from the Mortgages and Assignments of Lease
and Rents.
(c) Upon request of the Lessor or a Lessee following a
release of any Leased Property described in clause (a) or (b) above, the Agent
shall, at the sole cost and expense of the Lessees, execute and deliver to the
Lessor or the requesting Lessee such documents as the Lessor or such Lessee
shall reasonably request to evidence such release, including, if requested, a
release of the Assignments of Lease and Rents to the extent relating to such
Leased Property.
ARTICLE VII.
INDEMNIFICATION
SECTION 7.1 General Indemnification. Each of ChoicePoint and each
Lessee, jointly and severally, 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 or not such Indemnitee shall also be indemnified as to any such Claim by
any other Person (provided that no Indemnitee shall have the right to double
recovery with respect to any Claim) and whether or not such Claim arises or
accrues prior to any Closing Date or after the Lease Termination Date, or
results from such Indemnitee's negligence, in any way relating to or arising out
of:
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(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 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 any Leased Property or the imposition of any
Lien, other than a Lessor Lien (or incurring of any liability to refund or pay
over any amount as a result of any Lien, other than a Lessor Lien) thereon,
including, without limitation: (i) Claims or penalties arising from any
violation or alleged violation of law or in tort (strict liability or
otherwise), (ii) latent or other defects, whether or not discoverable, (iii) any
Claim based upon a violation or alleged violation of the terms of any
restriction, easement, condition or covenant or other matter affecting title to
any Leased Property or any part thereof, (iv) the making of any Alterations in
violation of any standards imposed by any insurance policies required to be
maintained by any Lessee pursuant to the Lease which are in effect at any time
with respect to any Leased Property or any part thereof, (v) any Claim for
patent, trademark or copyright infringement, (vi) Claims arising from any public
improvements with respect to any Leased Property resulting in any charge or
special assessments being levied against any Leased Property or any Claim for
utility "tap-in" fees, and (vii) Claims for personal injury or real or personal
property damage occurring, or allegedly occurring, on any Land, Building or
Leased Property;
(c) the breach by ChoicePoint or any 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
(without giving effect to any exception in any representation based on knowledge
or on the absence of a Material Adverse Effect);
(d) the retaining or employment of any broker, finder or
financial advisor by ChoicePoint or any Lessee to act on its behalf in
connection with this Master Agreement, or the incurring of any fees or
commissions to which the Lessor, the Agent or any Lender might be subjected by
virtue of their entering into the transactions contemplated by this Master
Agreement (other than fees or commissions due to any broker, finder or financial
advisor retained by the Lessor, the Agent or any Lender);
(e) the existence of any Lien (other than a Lessor Lien)
on or with respect to any Leased Property, the Construction, any Basic Rent or
Supplemental Rent, title thereto, or any interest therein, including any Liens
which arise out of the possession, use, occupancy, construction, repair or
rebuilding of any Leased Property or by reason of labor or materials furnished
or claimed to have been furnished to the Construction Agent, any Lessee, or any
of its contractors or agents or by reason of the financing of any personalty or
equipment purchased or
48
leased by any Lessee or Alterations constructed by any Lessee, except, in all
cases, the Liens described in item (a) of the definition of Permitted Liens;
(f) the transactions contemplated hereby or by any other
Operative Document, in respect of the application of Parts 4 and 5 of Subtitle B
of Title I of ERISA and any prohibited transaction described in Section 4975(c)
of the Code;
(g) any act or omission by ChoicePoint or any Lessee
under any Purchase Agreement or any other Operative Document, or any breach by
ChoicePoint or any Lessee of any requirement, condition, restriction or
limitation in any Deed, Purchase Agreement, IDB Documentation or Ground Lease;
or
(h) any IDB Documentation;
provided, however, neither ChoicePoint nor any Lessee shall be required to
indemnify any Indemnitee under this Section 7.1 for any Claim to the extent that
such Claim results from (collectively, "Excepted Claims"): (1) any
representation or warranty by such Indemnitee in the Operative Documents being
incorrect; (2) the willful misconduct or gross negligence of, or the violation
of any law, rule or regulation binding upon such Indemnitee unless such
violation was caused by some performance or nonperformance on the part of a
Lessee; (3) the failure on the part of the Lessor or the Agent to distribute in
accordance with this Master Agreement or any other Operative Document any
amounts received and distributable by it under the Operative Documents; (4)
Lessor Liens; (5) the voluntary transfer by any Indemnitee, other than in
accordance with the Operative Documents or in connection with the exercise of
rights, powers or remedies under any of the Operative Documents, of any Leased
Property or any interest therein; or (6) claims from any acts or omissions
occurring after the latest of the Lease Termination Date, the sale of the Leased
Property to a Person not affiliated with a Lessee pursuant to the Lease, the
termination of the obligations of the Construction Agent under the Construction
Agency Agreement, or the final indefeasible repayment to the Funding Parties in
full of the Lease Balance; and, provided, further, that with respect to each
Construction Land Interest, each Lessee's indemnity obligations with respect to
such Leased Property shall be governed solely by Section 3.3 of the Construction
Agency Agreement during the Construction Term therefor. It is expressly
understood and agreed that the indemnity provided for herein shall survive the
expiration or termination of, and shall be separate and independent from any
other remedy under this Master Agreement, the Lease or any other Operative
Document.
SECTION 7.2 Environmental Indemnity. In addition to and without
limitation of Section 7.1 or Section 3.3 of the Construction Agency Agreement
(but subject to the proviso set forth below), each of ChoicePoint and each
Lessee, jointly and severally, agrees to indemnify, hold harmless and defend
each Indemnitee, on an After-Tax Basis, from and against any and all claims
(including without limitation third party claims for personal injury or real or
personal property damage), losses (including but not limited to any loss of
value of any Leased Property),
49
damages, liabilities, fines, penalties, charges, suits, settlements, demands,
administrative and judicial proceedings (including informal proceedings and
investigations) and orders, judgments, remedial action, requirements,
enforcement actions of any kind, and all reasonable costs and expenses actually
incurred in connection therewith (including, but not limited to, reasonable
attorneys' and/or paralegals' fees and expenses), including, but not limited to,
all costs incurred in connection with any investigation or monitoring of site
conditions or any clean-up, remedial, removal or restoration work by any
federal, state or local government agency, arising directly or indirectly, in
whole or in part, out of
(i) the presence on or under any Land of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials on,
under, from or onto any Land,
(ii) any activity, including, without limitation,
construction, carried on or undertaken on or off any Land, and whether
by a Lessee or any predecessor in title or any employees, agents,
contractors or subcontractors of a 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 any Land,
(iii) loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, cost of corrective action, costs of
financial assurance, fines and penalties and natural resource damages),
or death or injury to any Person, and all expenses associated with the
protection of wildlife, aquatic species, vegetation, flora and fauna,
and any mitigative action required by or under Environmental Laws, in
each case to the extent related to any Leased Property,
(iv) any claim concerning any Leased Property's lack of
compliance with Environmental Laws, or any act or omission causing an
environmental condition on or with respect to any 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 any Land, or
affecting any natural resources on any Land, and to any contamination
of any property or natural resources arising in connection with the
generation, use, handling, storage, transport or disposal of any such
Hazardous Materials on or from any 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;
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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 a Lessee or any Affiliate
thereof owns any interest in or otherwise occupies or possesses any
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 any Leased Property and during
which such Indemnitee retains such possession;
provided, however, no Lessee shall be required to indemnify any Indemnitee under
this Section 7.2 for any Claim to the extent that such Claim results from the
willful misconduct or gross negligence of such Indemnitee (other than gross
negligence or willful misconduct imputed to such Indemnitee solely by reason of
its interest in any Leased Property; and provided, further, with respect to
matters arising or occurring within the period described in (z) above, that the
Lessee also shall not be required to indemnify any Indemnitee under this Section
7.2 for any Claim to the extent that such Claim results from any act or omission
occurring after the date on which Indemnitee so took possession). 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 a Lessee is requested by an Indemnitee to pay by reason of Section
7.1 or 7.2, such Indemnitee shall, if so requested by such Lessee and prior to
any payment, submit such additional information to such Lessee as such Lessee
may reasonably request and which is in the possession of, or under the control
of, such Indemnitee to substantiate properly the requested payment. In case any
action, suit or proceeding shall be brought against any Indemnitee, such
Indemnitee promptly shall notify ChoicePoint of the commencement thereof
(provided that the failure of such Indemnitee to promptly notify ChoicePoint
shall not affect ChoicePoint's or any Lessee's obligation to indemnify hereunder
except to the extent that a Lessee's rights to contest are materially prejudiced
by such failure), and such Lessee shall be entitled, at its expense, to
participate in, and, to the extent that such Lessee desires to, assume and
control the defense thereof with counsel reasonably satisfactory to such
Indemnitee; provided, however, that such Indemnitee may pursue a motion to
dismiss such Indemnitee from such action, suit or proceeding with counsel of
such Indemnitee's choice at the Lessees' expense; and provided further that a
Lessee may assume and control the defense of such proceeding only if
ChoicePoint, if requested
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to do so by the Indemnitee, shall have acknowledged in writing its and each
Lessee's obligations to fully indemnify such Indemnitee in respect of such
action, suit or proceeding, Lessees shall pay all reasonable costs and expenses
related to such action, suit or proceeding as and when incurred and the related
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 no Lessee shall 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 civil liability on such Indemnitee in excess of $1,000,000 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 any Leased Property or any part thereof unless the related Lessee or
ChoicePoint 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 Lessees which
the related 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 a Lessee in accordance with
the foregoing.
If a Lessee fails to fulfill the conditions to such Lessee's assuming
the defense of any claim after receiving notice thereof on or prior to the later
of (a) the date that is five (5) days after receiving notice thereof and (b) the
date that is fifteen (15) days prior to the date that an answer or response is
required, the Indemnitee may undertake such defense, at the Lessees' expense. No
Lessee shall enter into any settlement or other compromise with respect to any
Claim which admits any liability or wrong-doing on part of any Indemnitee or
which is in excess of $1,000,000 which is entitled to be indemnified under
Section 7.1 or 7.2 without the prior written consent of the related Indemnitee,
which consent shall not be unreasonably withheld or delayed. 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
ChoicePoint, which consent shall not be unreasonably withheld, unless such
Indemnitee waives its right to be indemnified under Section 7.1 or 7.2 with
respect to such Claim.
Upon payment in full of any Claim by the Lessees pursuant to Section
7.1 or 7.2 to or on behalf of an Indemnitee, the Lessees, 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 Lessees and give
such further assurances as are reasonably necessary or advisable to enable the
Lessees vigorously to pursue such claims.
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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 each of ChoicePoint and each 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 ChoicePoint
and the Lessees 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, each of ChoicePoint and each Lessee,
jointly and severally, 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
nature whatsoever, together with any penalties, fines or interest thereon or
additions thereto (any of the foregoing being referred to herein as "Taxes" and
individually as a "Tax" (for the purposes of this Section 7.4, the definition of
"Taxes" includes amounts imposed on, incurred by, or asserted against each Tax
Indemnitee as the result of any prohibited transaction, within the meaning of
Section 406 or 407 of ERISA or Section 4975(c) of the Code, arising out of the
transactions contemplated hereby or by any other Operative Document)) imposed on
or with respect to any Tax Indemnitee, any Lessee, ChoicePoint, any Leased
Property or any portion thereof or any 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 any Leased Property or the imposition of
any Lien (or incurrence of any liability to refund or pay over any amount as a
result of any Lien) thereon, (ii) Basic Rent or Supplemental Rent or the
receipts or earnings arising from or received with respect to any 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) any Leased Property, any 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. Notwithstanding the
foregoing, during the Construction Term for any Construction Land Interest, (i)
ChoicePoint and the Lessees shall only
53
be obligated to indemnify the Lessor and its Affiliates, successors, permitted
assigns, permitted transferees, employees, officers, directors and agents, with
respect to Taxes related to such Construction Land Interest and (ii) Lessor
hereby indemnifies the other Tax Indemnitees (as defined in clause (ii) of the
definition thereof) for such Taxes, to the extent that Lessor receives payment
therefor from ChoicePoint or any Lessee.
(b) Exclusions from General Tax Indemnity. Section 7.4(a)
shall not apply to:
(i) Taxes on, based on, or measured by or with
respect to net income of the Lessor, the Agent and the Lenders
(including, 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, and (B) withholding
Taxes imposed by 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 Lender became a Lender hereunder 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;
(ii) Taxes on, based on, or in the nature of, or
measured by Taxes on doing business and business privilege, franchise,
capital, capital stock, net worth, gross receipts or similar Taxes,
other than (A) any increase in such Taxes imposed on such Tax
Indemnitee by any state in which 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 each Funding Date
the Lessor and the Lenders had advanced funds to a Lessee or the
Construction Agent 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 relating to any Leased Property;
(iii) Taxes that are based on, or measured by, the
fees or other compensation received by a Person acting as Agent (in its
individual capacities) or any Affiliate of any thereof for acting as
trustee under the Loan Agreement;
(iv) Taxes that result from any act, event or
omission, or are attributable to any period of time, that occurs after
the earlier of (A) the expiration of the Lease Term with respect to any
Leased Property and, if such 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 Lessees' obligations to pay the Lease Balance,
or any amount determined by reference thereto, with respect to any
Leased Property and all other
54
amounts due under the Lease, unless such Taxes relate to acts, events
or matters occurring prior to the earlier of such times or are imposed
on or with respect to any payments due under the Operative Documents
after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that
result from any voluntary sale, assignment, transfer or other
disposition or bankruptcy by such Tax Indemnitee or any related Tax
Indemnitee of any interest in any Leased Property or any part thereof,
or any interest therein or any interest or obligation arising under the
Operative Documents, or from any sale, assignment, transfer or other
disposition of any interest in such Tax Indemnitee or any related Tax
Indemnitee, it being understood that each of the following shall not be
considered a voluntary sale: (A) any substitution, replacement or
removal of any of the Leased Property by any Lessee, (B) any sale or
transfer resulting from the exercise by any Lessee of any termination
option, any purchase option or sale option, (C) any sale or transfer
while an Event of Default shall have occurred and be continuing under
the Lease, 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 any Leased
Property);
(viii) any Tax that results from a Tax Indemnitee
engaging, with respect to any Leased Property, in transactions
unrelated to the Leased Properties or the transactions contemplated by
the Operative Documents;
(ix) to the extent any interest, penalties or
additions to tax result in whole or in part from the failure of a Tax
Indemnitee to file a return or pay a Tax that it is required to file or
pay in a proper and timely manner, unless such failure (A) results from
the transactions contemplated by the Operative Documents in
circumstances where a Lessee did not give timely notice to such Tax
Indemnitee (and such Tax Indemnitee otherwise had no actual knowledge)
of such filing or payment requirement that would have permitted a
proper and timely filing of such return or payment of such Tax, as the
case may be, or (B) results from the failure of a Lessee to supply
information necessary for the proper and timely filing of such return
or payment of such Tax, as the case may be, that was not in the
possession of such Tax Indemnitee; and
55
(x) any Tax that results from the breach by the
Lessor of its representation and warranty made in Section 4.3(g) or the
breach of any Lender of its representation and warranty made in Section
4.4(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
Lessees may have an indemnity obligation pursuant to Section 7.4, or if any Tax
Indemnitee shall determine that any Taxes as to which the Lessees may have an
indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee
shall promptly notify ChoicePoint. ChoicePoint shall be entitled, at its
expense, to participate in, and, to the extent that ChoicePoint desires to,
assume and control the defense thereof; provided, however, that ChoicePoint,
shall have acknowledged in writing its and each Lessee's obligation to fully
indemnify such Tax Indemnitee in respect of such action, suit or proceeding if
the contest is unsuccessful; and, provided further, that ChoicePoint 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 ChoicePoint and the Lessees, on behalf of ChoicePoint with
representatives reasonably satisfactory to ChoicePoint or a Lessee) if and to
the extent that, (A) in the reasonable opinion of such Tax Indemnitee, such
action, suit or proceeding (x) involves any risk of imposition of criminal
liability or any material risk of civil liability in excess of $1,000,000 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 any
Leased Property or any part thereof unless ChoicePoint or a 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 Lessees which ChoicePoint 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 Lessees or (E) such action, suit or proceeding involves
the federal or any state income tax liability of the Tax Indemnitee. With
respect to any contests controlled by a Tax Indemnitee, (i) if such contest
relates to the federal or any state income tax liability of such Tax Indemnitee,
such Tax Indemnitee shall be required to conduct such contest only if
ChoicePoint shall have provided to such Tax Indemnitee an opinion of independent
tax counsel selected by the Tax Indemnitee and reasonably satisfactory to
ChoicePoint 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 ChoicePoint
in accordance with the foregoing.
56
Each Tax Indemnitee shall, at ChoicePoint's and the Lessees' expense,
supply ChoicePoint with such information and documents in such Tax Indemnitee's
possession as are reasonably requested by ChoicePoint and are necessary or
advisable for ChoicePoint 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 ChoicePoint, 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) 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 ChoicePoint 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 ChoicePoint or
any 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 ChoicePoint or any
Lessee pursuant to this Section 7.4, such Tax Indemnitee at any time realizes a
reduction in any Taxes for which the Lessees are 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 ChoicePoint or any Lessee to or
for the account of such Tax Indemnitee, then such Tax Indemnitee shall promptly
pay to ChoicePoint (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 (but shall be paid promptly after all
Events of Default have been cured) and, provided, further, that the amount
payable to ChoicePoint 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 ChoicePoint and the Lessees 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 ChoicePoint 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 ChoicePoint or the Lessees pursuant
to this Section 7.4. The disallowance or reduction of any credit, refund or
other tax savings with respect
57
to which a Tax Indemnitee has made a payment to ChoicePoint and the Lessees
under this Section 7.4(d) shall be treated as a Tax for which ChoicePoint and
the Lessees 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 by ChoicePoint or a Lessee directly when due to the applicable
taxing authority if direct payment is practicable and permitted. If direct
payment to the applicable taxing authority is not permitted or is otherwise not
made, any amount payable to a Tax Indemnitee pursuant to 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 ChoicePoint, as the case may be, in immediately
available funds at such bank or to such account as specified by the payee in
written directions to the payor, or, if no such direction shall have been given,
by check of the payor payable to the order of the payee by certified mail,
postage prepaid at its address as set forth in this Master Agreement. Upon the
request of any Tax Indemnitee with respect to a Tax that ChoicePoint and the
Lessees are required to pay, ChoicePoint shall furnish to such Tax Indemnitee
the original or a certified copy of a receipt for ChoicePoint's or a Lessee's
payment of such Tax or such other evidence of payment as is reasonably
acceptable to such Tax Indemnitee.
(f) Reports. If ChoicePoint or any 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, such Lessee shall, if
such 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 such Lessee); provided, however, that if such Lessee is not
permitted by Applicable Law or does not have access to the information required
to file any such report, return or statement, such 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 related 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 such Lessee.
(g) Verification. At ChoicePoint's request, the amount
of any indemnity payment by a Lessee or any payment by a Tax Indemnitee to
ChoicePoint pursuant to this Section 7.4 shall be verified and certified by an
independent public accounting firm selected by ChoicePoint and reasonably
acceptable to the Tax Indemnitee. Unless such verification shall disclose an
error in ChoicePoint's favor of 5% or more of the related indemnity payment, the
costs of such verification shall be borne by ChoicePoint; otherwise, such costs
shall be borne by the related Tax Indemnitee. In no event shall ChoicePoint or
any Lessee have the right to review the Tax Indemnitee's tax returns or receive
any other confidential information from the Tax
58
Indemnitee in connection with such verification. The Tax Indemnitee agrees to
cooperate with the independent public accounting firm performing the
verification and to supply such firm with all information reasonably necessary
to permit it to accomplish such verification, provided that the information
provided to such firm by such Tax Indemnitee shall be for its confidential use.
The parties agree that the sole responsibility of the independent public
accounting firm shall be to verify the amount of a payment pursuant to this
Master Agreement and that matters of interpretation of this Master Agreement are
not within the scope of the independent accounting firm's responsibilities.
SECTION 7.5 Increased Costs, etc.
(a) Illegality. Notwithstanding any other provision
herein, if any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Funding Party to make or
maintain LIBOR Advances as contemplated by this Master Agreement, (a) the
commitment of such Funding Party hereunder to continue LIBOR Advance as such and
convert Funded Amounts to LIBOR Advance shall forthwith be cancelled and (b)
such Funding Party's Funded Amounts then outstanding as LIBOR Advance, if any,
shall be converted automatically to Base Rate Advances on the respective last
days of the then current Rent Periods with respect to such Funded Amounts or
within such earlier period as required by law. If any such conversion of a LIBOR
Advance occurs on a day which is not the last day of the then current Rent
Period with respect thereto, each of ChoicePoint and each Lessee, jointly and
severally, shall pay to such Funding Party such amounts, if any, as may be
required pursuant to Section 7.5(f).
(b) Requirements of Law. In the event that Eurocurrency
Reserve Requirements or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Funding Party with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Funding Party to any tax of any
kind whatsoever with respect to this Master Agreement, any Note or any
LIBOR Advance made by it, or change the basis of taxation of payments
to such Funding Party in respect thereof (except for taxes covered by
Section 7.5(d) and changes in franchise taxes or the rate of tax on the
overall net income of such Funding Party);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Funding Party; or
(iii) shall impose on such Funding Party any other
condition;
59
and the result of any of the foregoing is to increase the cost to such Funding
Party, by an amount which such Funding Party deems to be material, of making,
converting into, continuing or maintaining LIBOR Advances or to reduce any
amount receivable hereunder in respect thereof then, in any such case, each of
ChoicePoint and each Lessee, jointly and severally, shall promptly pay such
Funding Party, upon its demand, any additional amounts necessary to compensate
such Funding Party for such increased cost or reduced amount receivable. If any
Funding Party becomes entitled to claim any additional amounts pursuant to this
subsection in relation to such outstanding LIBOR Advances, it shall promptly
notify ChoicePoint, through the Agent, of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Funding Party, through the Agent, to
ChoicePoint in good faith and setting forth in reasonable detail the calculation
of such amounts shall be conclusive in the absence of manifest error. The
provisions of this paragraph (b) shall survive the termination of this Master
Agreement and the Lease and the payment of the Notes and all other amounts
payable under the Operative Documents.
(c) Capital Adequacy. In the event that any Funding Party
or corporation controlling such Funding Party shall have determined that any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Funding Party or
such corporation with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof does or shall have the effect of reducing the rate
of return on such Funding Party's capital as a consequence of its obligations
hereunder to a level below that which such Funding Party could have achieved but
for such change or compliance (taking into consideration such Funding Party's
policies with respect to capital adequacy) by an amount deemed by such Funding
Party to be material, then from time to time, after submission by such Funding
Party in good faith to ChoicePoint (with a copy to the Agent) of a written
request therefor setting forth in reasonable detail the calculation of such
amount (which request shall be conclusive in the absence of manifest error),
each of ChoicePoint and each Lessee, jointly and severally, shall pay to such
Funding Party such additional amount or amounts as will compensate such Funding
Party for such reduction to the extent imposed generally on other lessees or
borrowers with whom such Funding Party has similar lease or credit arrangements
(but in the case of outstanding Base Rate Advances, without duplication of any
amounts already covered by such Funding Party by reason of an adjustment in the
applicable Base Rate). The provisions of this paragraph (c) shall survive the
termination of this Master Agreement and the Lease and the payment of the Notes
and all other amounts payable under the Operative Documents.
(d) Taxes. Subject to Section 7.5(e), all payments made
by a Lessee under the Lease and the other Operative Documents shall be made free
and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding, in the
case of the
60
Agent and each Funding Party, net income taxes and franchise taxes (imposed in
lieu of net income taxes) imposed on the Agent or such Funding Party, as the
case may be, as a result of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax and the
Agent or such Funding Party (excluding a connection arising solely from the
Agent or such Funding Party having executed, delivered or performed its
obligations or received a payment under, or enforced, this Master Agreement or
any other Operative Document) or any political subdivision or taxing authority
thereof or therein (all such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions and withholdings being hereinafter called "Withholding
Taxes"). If any Withholding Taxes are required to be withheld from any amounts
payable to the Agent or any Funding Party hereunder or under any other Operative
Document, the amounts so payable to the Agent or such Funding Party (so long as
such Funding Party is in compliance with Section 7.5(e), as appropriate) shall
be increased to the extent necessary to yield to the Agent or such Funding Party
(after payment of all Withholding Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in the Operative
Documents. Whenever any Withholding Taxes are payable by a Lessee, as promptly
as possible thereafter such Lessee shall send to the Agent for its own account
or for the account of such Funding Party, as the case may be, a certified copy
of an original official receipt received by such Lessee showing payment thereof.
If a Lessee fails to pay any Withholding Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, each of ChoicePoint and each Lessee, jointly and
severally, shall indemnify the Agent and the Funding Parties for any incremental
taxes, interest or penalties that may become payable by the Agent or any Funding
Party as a result of any such failure. The agreements in this subsection shall
survive the termination of this Master Agreement and the Lease and the payment
of the Notes and all other amounts payable under the Operative Documents.
(e) Tax Forms. Each Lender to this Master Agreement on
the Initial Closing Date that is not incorporated under the laws of the United
States of America or a state thereof agrees that, on or prior to the Initial
Closing Date, it will deliver to ChoicePoint and the Agent two duly completed
copies of (i) United States Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form, as the case may be, and (ii) an Internal Revenue
Service Form W-9 or successor applicable form. Each such Lender also agrees to
deliver to ChoicePoint and the Agent two further copies of the said Form W-8BEN
or W-8ECI and Form W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to ChoicePoint, and
such extensions or renewals thereof as may reasonably be requested by
ChoicePoint or the Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Funding Party from duly
completing and delivering any such form with respect to it and such Funding
Party so advises ChoicePoint and the Agent. Such Lender shall certify (i) in the
case of a Form W-8BEN
61
or W-8ECI, that it is entitled to receive payments under the Operative Documents
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-9, that it is entitled to an exemption from United
States backup withholding tax.
(f) Breakage Costs. Each of ChoicePoint and each Lessee,
jointly and severally, agrees to indemnify each Funding Party and to hold each
Funding Party harmless from any loss or expense which such Funding Party may
sustain or incur as a consequence of (a) default by a Lessee in payment when due
of the principal amount of or interest on any LIBOR Advance, (b) default by a
Lessee in making a borrowing or conversion after such Lessee or the Construction
Agent has given (or is deemed to have given) a notice in accordance with this
Master Agreement, (c) default by a Lessee in making any prepayment of LIBOR
Advances after such Lessee has given a notice thereof in accordance with the
provisions of the Operative Documents or (d) the making of a prepayment, payment
or conversion, of LIBOR Advances on a day which is not the last day of a Rent
Period with respect thereto, including, without limitation, in each case, any
such loss (other than non-receipt of the Applicable Margin or, without
duplication, anticipated profits) or expense arising from the reemployment of
funds obtained by it or from fees payable to terminate the deposits from which
such funds were obtained (it being understood that any such calculation will be
made on notional amounts as the Funding Parties are not required to show that
they matched deposits specifically). A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Funding Party, through the
Agent, to ChoicePoint in good faith shall be conclusive in the absence of
manifest error. The provisions of this paragraph (f) shall survive the
termination of this Master Agreement and the Lease and the payment of the Notes
and all other amounts payable under the Operative Documents.
(g) Action of Affected Funding Parties. Each Funding
Party agrees to use reasonable efforts (including reasonable efforts to change
the booking office for its Loans) to avoid or minimize any illegality pursuant
to Section 7.5(a) or any amounts which might otherwise be payable pursuant to
Section 7.5(c) or (d); provided, however, that such efforts shall not cause the
imposition on such Funding Party of any additional costs or legal or regulatory
burdens reasonably deemed by such Funding Party to be material and shall not be
deemed by such Funding Party to be otherwise contrary to its policies. In the
event that such reasonable efforts are insufficient to avoid all such illegality
or all amounts that might be payable pursuant to Section 7.5(c) or (d), then
such Funding Party (the "Affected Funding Party") shall use its reasonable
efforts to transfer to any other Funding Party (which itself is not then an
Affected Funding Party) its Loans and Commitment, subject to the provisions of
Section 6.2; provided, however, that such transfer shall not be deemed by such
Affected Funding Party, in its sole discretion, to be disadvantageous to it or
contrary to its policies. In the event that the Affected Funding Party is
unable, or otherwise is unwilling, so to transfer its Loans and Commitment,
ChoicePoint may designate an alternate lender (reasonably acceptable to the
Agent) to purchase the Affected Funding Party's Loans and Commitment, at par and
including accrued interest, and, subject to the provisions of Section 6.2, the
Affected Funding Party shall transfer its
62
Commitment to such alternate lender and such alternate lender shall become a
Funding Party hereunder. Any fee payable to the Agent pursuant to Section 6.2 in
connection with such transfer shall be for the account of ChoicePoint and the
Lessees.
(h) Construction Land Interests. Any amounts payable by
the Lessees pursuant to this Section 7.5 with respect to Construction Land
Interests during the Construction Term therefor shall be paid with the proceeds
of Advances.
SECTION 7.6 End of Term Indemnity. In the event that at the end
of the Lease Term for the Leased Properties: (i) the related 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 Properties under Section 14.6 or
14.7 of the Lease, together with Lessees' 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 Lessees' 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 ChoicePoint, such
approval not to be unreasonably withheld) in form and substance reasonably
satisfactory to the Lessor and the Agent (the "Report") to establish the reason
for any decline in value of the Leased Properties from the Lease Balance. The
Lessees, jointly and severally, shall promptly reimburse the Lessor for the
amount equal to such decline in value to the extent that the Report indicates
that such decline was due to
(v) during the time while any property was a Leased
Property, extraordinary use, failure to maintain, to repair, to
restore, to rebuild or to replace as required by the Operative
Documents, failure to comply with all Applicable Laws, failure to use
good workmanship with respect to work performed after the Closing Date
related to such Leased Property, method of installation or removal or
maintenance, repair, rebuilding or replacement, or any other cause or
condition within the power of a Lessee to control or effect resulting
in the Building failing to be of the type and quality contemplated by
the Appraisal (excepting in each case ordinary wear and tear), or
(w) any Alteration made to, or any rebuilding of, any
Leased Property or any part thereof by any Lessee, or
(x) any restoration or rebuilding carried out by any
Lessee or any condemnation of any portion of any Leased Property
pursuant to Article X of the Lease, or
(y) any use of any Leased Property or any part thereof
by any 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 related Deed, related Ground
Lease or the related Purchase Agreement, or
63
(z) the existence or compliance with any IDB
Documentation.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1 Survival of Agreements. The representations,
warranties, covenants, indemnities and agreements of the parties provided for in
the Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Master Agreement and any of the
Operative Documents, the transfer of any Land to the Lessor as provided herein
(and shall not be merged into any Deed), any disposition of any interest of the
Lessor in any Leased Property, the purchase and sale of the Note, 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 Documentary Conventions. The Documentary Conventions
shall apply to this Master Agreement.
SECTION 8.3 Expenses. Whether or not the transactions herein
contemplated are consummated, each of ChoicePoint and the Lessees, jointly and
severally, agrees to pay, as Supplemental Rent, all actual, reasonable and
documented out-of-pocket costs and expenses of the Lessor and the Agent in
connection with the preparation, execution and delivery of the Operative
Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of Xxxxx, Xxxxx & Xxxxx) and of the
Lessor, the Agent and the Lenders in connection with endeavoring to enforce the
Operative Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees actually incurred and
disbursements of counsel for the Lessor, the Agent and the Lenders), unless such
enforcement action is finally denied by a court on the merits. All references in
the Operative Documents to "attorneys' fees" or "reasonable attorneys fees"
shall mean reasonable attorneys' fees actually incurred, without regard to any
statutory definition thereof. Notwithstanding the foregoing, all such costs and
expenses related to the any Construction Land Interest shall be paid with the
proceeds of Advances (subject to the conditions set forth in this Master
Agreement).
SECTION 8.4 Liabilities of the Funding Parties: Sharing of
Payments. (a) No Funding Party shall have any obligation to any other Funding
Party or to the Guarantor or any 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
64
ChoicePoint or any Lessee, any other Funding Parties or any other Person with
respect to the transactions contemplated hereby except to the extent of the
obligations and duties expressly set forth in this Master Agreement or the Loan
Agreement.
(b) If any Funding Party shall obtain any payment (whether
voluntary or involuntary, or through the exercise of any right of set-off or
otherwise) on account of the Advances made by it in excess of its ratable share
of payments on account of the Advances obtained by all the Funding Parties, such
Funding Parties shall forthwith purchase from the other Funding Parties such
participations in the Advances owed to them as shall be necessary to cause such
purchasing Funding Party to share the excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Funding Party, such purchase from each
Funding Party shall be rescinded and such Funding Party shall repay to the
purchasing Funding Party the purchase price to the extent of such Funding
Party's ratable share (according to the proportion of (i) the amount of the
participation purchased from such Funding Party as a result of such excess
payment to (ii) the total amount of such excess payment) of such recovery
together with an amount equal to such Funding Party's ratable share (according
to the proportion of (i) the amount of such Funding Party's required repayment
to (ii) the total amount so recovered from the purchasing Funding Party) of any
interest or other amount paid or payable by the purchasing Funding Party in
respect of the total amount so recovered. Each Funding Party agrees that any
Funding Party so purchasing a participation from another Funding Party pursuant
to this Section 8.4 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Funding Party were the direct creditor of such
Funding Party in the amount of such participation.
SECTION 8.5 Liabilities of the Agent. The Agent shall have no
duty, liability or obligation to any party to this Master Agreement with respect
to the transactions contemplated hereby except those duties, liabilities or
obligations expressly set forth in this Master Agreement or the Loan Agreement,
and any such duty, liability or obligations of the Agent shall be as expressly
limited by this Master Agreement or the Loan Agreement, as the case may be. All
parties to this Master Agreement acknowledge that the Agent is not, and will not
be, performing any due diligence with respect to documents and information
received pursuant to this Master Agreement or any other Operative Agreement
including, without limitation, any Environmental Audit, Title Policy or survey.
The acceptance by the Agent of any such document or information shall not
constitute a waiver by any Funding Party of any representation or warranty of
ChoicePoint or any Lessee even if such document or information indicates that
any such representation or warranty is untrue.
SECTION 8.6 Changes in GAAP. In the event that there are any
accounting pronouncements after the date hereof affecting the accounting
treatment of operating leases as a result of the "special purpose nature" of the
lessor, the parties hereto hereby agree to negotiate in good faith such
amendments, if any, to the Operative Documents as may be necessary to avoid
classification of the Lease as a financing under GAAP as a result of the
application of any such accounting pronouncements.
65
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.
CHOICEPOINT INC., as Guarantor and as a Lessee
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name Printed: Xxxxx X. Xxxxx
---------------------------------
Title: Treasurer
----------------------------------------
S-1
ATLANTIC FINANCIAL GROUP, LTD., as Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------------
Name Printed: Xxxxxxx Xxxxxxxxxx
Title: President
S-2
SUNTRUST BANK, as Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Director
----------------------------------------
S-3
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------
Name Printed: Xxxx X. Xxxxxxx
---------------------------------
Title: Director
----------------------------------------
S-4
BNP PARIBAS, as a Lender
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name Printed: Xxxx Xxxxxxx
---------------------------------
Title: Vice President
----------------------------------------
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name Printed: Xxxxxx Xxxxxx
---------------------------------
Title: Vice President
----------------------------------------
S-5
APPENDIX A
to
Master Agreement
DEFINITIONS, INTERPRETATION AND DOCUMENTARY CONVENTIONS
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, waived, restated 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, waived, restated, 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, paragraph or other
provision of such Operative Document;
(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding".
B. Accounting Terms. In each Operative Document, unless expressly
otherwise provided, accounting terms shall be construed and interpreted, and
accounting determinations and computations shall be made, in accordance with
GAAP.
C. Conflict in Operative Documents. If there is any conflict
between any Operative Documents, each such Operative Document shall be
interpreted and construed, if possible, so as to avoid or minimize such conflict
but, to the extent (and only to the extent) of such conflict, the Master
Agreement shall prevail and control.
D. Legal Representation of the Parties. The Operative Documents
were negotiated by the parties with the benefit of legal representation and any
rule of construction or interpretation otherwise requiring any Operative
Document to be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears,
terms defined herein have the respective indicated meanings when used in each
Operative Document.
"A Loan" means with respect to any Leased Property, the principal
portion of the related Loans equal to the Recourse Deficiency Amount for such
Leased Property.
"Acquisition" means any transaction or series of related transactions
for the purpose of, or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interest, membership interest, or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation of, or any other combination with, another Person (other than a
Person that is a Subsidiary).
"Additional Amounts" is defined in Section 3.2 of the Construction
Agency Agreement.
"Additional Insured" means each of the Agent, each Lender and Lessor.
"Address" means with respect to any Person, its address set forth in
Schedule I hereto or such other address as it shall have identified to the
parties to the Master Agreement in writing in the manner provided for the giving
of notices thereunder.
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"Advance" means a LIBOR Advance or a Base Rate Advance.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, controls or is
controlled by or is under common Control with the Person specified. For purposes
of this definition, the term "control" (including the correlative meanings of
the terms "controlled by" and "under common control with"), as used with respect
to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"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 an Indemnitee or by 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 recipient of such payment from an Indemnitee has sufficient income to
utilize any deductions, credits (other than foreign tax credits, the use of
which shall be determined on an actual basis) and other Tax benefits arising
from any payments described in clause (b) of this definition.
"Agent" means SunTrust Bank, a Georgia banking corporation, in its
capacity as agent under the Master Agreement and the Loan Agreement.
"Alterations" means, with respect to any Leased Property, fixtures,
alterations, improvements, modifications and additions to such Leased Property.
"Applicable Law" means, each as and to the extent applicable: all laws
(including Environmental Laws), rules, regulations (including proposed,
temporary and final income tax regulations), statutes, treaties, codes,
ordinances, permits, certificates, orders and licenses of any Governmental
Authority, judgments, decrees, injunctions, writs, and orders or like action of
any
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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 wetlands) and those pertaining to the
construction, use or occupancy of any Leased Property).
"Applicable Margin" shall mean, for any day, (i) with respect to Base
Rate Advances, the applicable rate per annum set forth below under the captions
"Base Rate Advances," and (ii) with respect to LIBOR Advances, the applicable
rate per annum set forth below under the captions "LIBOR Advances," as the case
may be, based upon ChoicePoint's ratio of Funded Debt to Consolidated EBITDA,
measured quarterly, effective in the first fiscal quarter immediately following
the date of delivery of the Compliance Certificate to the Agent:
FUNDED DEBT TO
CONSOLIDATED LIBOR BASE RATE
EBITDA RATIO ADVANCES ADVANCES
-------------- -------- ---------
Greater than or Equal to 3.0:1.0 2.125% 0%
Less than 3.0:1.0 and Greater
than or Equal to 2.5:1.0 1.5% 0%
Less than 2.5:1.0 and Greater
than or Equal to 2.0:1.0 1.375% 0%
Less than 2.0:1.0 1.0% 0%
For purposes of the foregoing, (i) the Applicable Margin on the initial Closing
Date is 1.0% and shall remain 1.0% through and including September 30, 2001 (by
way of example, as of the first day of the third fiscal quarter of ChoicePoint,
the Applicable Margin shall be calculated based upon the ratio of Funded Debt to
Consolidated EBITDA of ChoicePoint reported in the Compliance Certificate
delivered by ChoicePoint for the first fiscal quarter of such fiscal year of
ChoicePoint); and (ii) if ChoicePoint fails to provide the Compliance
Certificate and related financial statements required by Section 5.1 of the
Master Agreement within the applicable time period set forth therein, the
Applicable Margin shall be adjusted to 2.125% on the first day of the following
fiscal quarter until such Compliance Certificate and related financial
statements are delivered.
"Appraisal" is defined in Section 3.1 of the Master Agreement.
"Appraiser" means an MAI appraiser reasonably satisfactory to the
Agent.
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"Architect" means with respect to any Leased Property the architect
engaged in connection with the construction of the related Building, if any, who
may be an employee of the General Contractor for such Leased Property.
"Architect's Agreement" means, with respect to any Leased Property, the
architectural services agreement, if any, between the related Lessee and the
related Architect.
"Asset Securitization" means the $100,000,000 asset securitization
program entered into by the Receivables Subsidiaries and Three Pillars Funding
Corporation.
"Asset Securitization Agreements" means those documents which govern
the Asset Securitization.
"Assignment of Lease and Rents" means, with respect to any Leased
Property, the Assignment of Lease and Rents, dated as of the related Closing
Date, from the Lessor to the Agent, substantially in the form of Exhibit B to
the Master Agreement.
"Authority" means a development or similar authority of any state,
county or municipality that is an issuer of Bonds.
"Award" means any award or payment received by or payable to the Lessor
or a Lessee on account of any Condemnation or Event of Taking (less the actual
costs, fees and expenses, including reasonable attorneys' fees, incurred in the
collection thereof, for which the Person incurring the same shall be reimbursed
from such award or payment).
"B Loan" means with respect to any Leased Property, the excess of the
principal of the Loans related to such Leased Property over the Recourse
Deficiency Amount for such Leased Property.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
"Base Rate" means (with any change in the Base Rate to be effective as
of the date of change of either of the following rates) the higher of (i) the
rate which the Agent publicly announces from time to time as its prime lending
rate, as in effect from time to time, and (ii) the Federal Funds Rate, as in
effect from time to time, plus one-half of one percent (0.50%) per annum. The
Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to customers; the Agent may
make commercial loans or other loans at rates of interest at, above or below the
Agent's prime lending rate. The Base Rate is determined daily.
"Base Rate Advance" means that portion of the Funded Amount bearing
interest at the Base Rate.
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"Base Lease Term" means, with respect to any Leased Property, (a) the
period commencing on the Completion Date for such Leased Property (or the
Closing Date, if such Leased Property is not a Construction Land Interest) and
ending on August 29, 2007 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.
"Bonds" means industrial revenue or development bonds issued by a
state, county or municipal authority in connection with any Leased Property.
"Building" means, with respect to any Leased Property, (i) the
buildings, structures and improvements located or to be located on the related
Land, along with all fixtures used or useful in connection with the operation of
such Leased Property, including 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, (ii) all equipment and other
personal property financed by the Lessor and/or the Lenders and (iii) all
Alterations (including all restorations, repairs, replacements and rebuilding of
such buildings, improvements and structures) thereto (but in each case excluding
trade fixtures unless financed by the Lessor and/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 and, if the applicable Business Day relates to a LIBOR Advance, on which
trading is not carried on by and between banks in the London interbank market.
"Capital Lease" shall mean, as applied to any Person, any lease of any
asset by that Person as lessee which, in accordance with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, all capital stock of
such Person, whether voting or nonvoting, including common stock and preferred
stock of such Person.
"Casualty" means an event of damage or casualty relating to all or part
of any Leased Property that does not constitute an Event of Loss.
"CDB/Infotek" means ChoicePoint Public Records, Inc., a California
corporation.
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"Change in Control Provision" means any term or provision contained in
any indenture, debenture, note, or other agreement or document evidencing or
governing Indebtedness of ChoicePoint evidencing debt or a commitment to extend
loans in excess of $5,000,000 which requires, or permits the holder(s) of such
Indebtedness of ChoicePoint to require that such Indebtedness of ChoicePoint be
redeemed, repurchased, defeased, prepaid or repaid, either in whole or in part,
or the maturity of such Indebtedness of ChoicePoint to be accelerated in any
respect, as a result of a change in ownership of the Capital Stock of
ChoicePoint or voting rights with respect thereto.
"ChoicePoint" means ChoicePoint Inc., a Georgia corporation.
"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, with respect to each parcel of Land, the date on
which such Land is acquired by the Lessor pursuant to a Purchase Agreement or
such Land is leased to the Lessor pursuant to a Ground Lease and the initial
Funding occurs with respect to such Land under the Master Agreement.
"Code" or "Tax Code" means the Internal Revenue Code of 1986, as
amended from time to time and any successor statute.
"Commitment" means as to each Funding Party, its obligation to make
Fundings as investments in each 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
represented by such Funding Party's Commitment, as such percentage is shown for
such Funding Party on Schedule 2.2 to the Master Agreement (as it may be
adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Completion Date" with respect to any Leased Property that is a
Construction Land Interest means the Business Day on which the conditions
specified in Section 3.5 of the Master Agreement have been satisfied or waived
with respect to such Leased Property.
"Condemnation" means any condemnation, requisition, confiscation,
seizure, permanent use or other taking or sale of the use, occupancy or title to
any Leased Property or any part
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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 is prevented or occupancy or
title is taken.
"Consolidated Companies" means, collectively, ChoicePoint and all of
its Subsidiaries, other than the Receivables Subsidiaries.
"Consolidated EBIT" means, for any fiscal period of ChoicePoint, an
amount equal to (A) the sum for such fiscal period of Consolidated Net Income
(Loss) and, to the extent deducted in determining such Consolidated Net Income
(Loss), provisions for (i) taxes based on income and (ii) Consolidated Interest
Expense, minus (B) any items of gain (or plus any items of loss) which were
included in determining such Consolidated Net Income (Loss) and were (x) not
realized in the ordinary course of business (whether or not classified as
"ordinary" by GAAP), (y) the result of any sale of assets, or (z) resulting from
minority investments, together in the case of (x), (y) or (z), any related
provision for taxes included in Consolidated Net Income (Loss) with respect
thereto, plus (C) non-recurring non-cash charges, including without limitation,
accruals related to any acquisition and earnouts incurred in connection with any
acquisition to the extent not paid in cash.
"Consolidated EBITDA" means, for any four fiscal-quarter period of
ChoicePoint, an amount equal to the sum of (A) Consolidated EBIT plus (B)
depreciation and amortization expense to the extent deducted in determining
Consolidated Net Income (Loss), plus (C) without duplication, the sum of the
following items to the extent not included in Consolidated EBITDA for such
period:
(1) the net income (or net loss) for such four fiscal
quarter period of any Person which became a Subsidiary during such
period (a "New Subsidiary");
(2) the net income (or net loss) derived during such four
fiscal quarter period from any assets acquired by any Consolidated
Company during such period ("New Assets");
(3) the sum of (x) taxes based on income, (y)
Consolidated Interest Expense and (z) depreciation and amortization
expense, in each case to the extent deducted in determining net income
of any New Subsidiary or derived from any New Assets during such four
fiscal quarter period, minus any items of gain (or plus any items of
loss) which were included in determining such net income and were (aa)
not realized in the ordinary course of business (whether or not
classified as "ordinary" by GAAP), (bb) the result of any sale of
assets, or (cc) resulting from minority investments, together in the
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case of (aa), (bb) or (cc), any related provision for taxes included in
such net income with respect thereto; and
(4) non-recurring non-cash charges of any New Subsidiary
or derived from any New Assets during such four fiscal quarter period,
including without limitation, accruals related to any acquisition and
earnouts incurred in connection with any acquisition to the extent not
paid in cash.
"Consolidated EBITR" means, for any fiscal period of ChoicePoint, an
amount equal to the sum of Consolidated EBIT plus Consolidated Rental Expense
for such period.
"Consolidated Fixed Charges" means, for any fiscal period of
ChoicePoint, the sum of (A) Consolidated Interest Expense, plus (B) Consolidated
Rental Expense, plus (C) dividends and distributions on Capital Stock paid in
cash during such fiscal period by ChoicePoint, any other Consolidated Company or
any Receivables Subsidiary, but excluding the one-time dividend paid by
ChoicePoint to Equifax as of the Spin-Off Date and any repurchases of Capital
Stock of ChoicePoint.
"Consolidated Interest Expense" means, for any fiscal period of
ChoicePoint, total interest expense of the Consolidated Companies and the
Receivables Subsidiaries (including without limitation, interest expense
attributable to capitalized leases in accordance with GAAP, all commissions,
discounts and other fees and charges owed with respect to bankers acceptance
financing, and total interest expense (whether shown as interest expense or as
loss and expenses on sale of receivables) under a receivables purchase facility)
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income (Loss)" means, for any fiscal period of
ChoicePoint, the net income (or loss) of the Consolidated Companies or any
Receivables Subsidiary for such period (taken as a single accounting period),
but excluding therefrom (to the extent otherwise included therein) the income of
any Consolidated Company or any Receivables Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Consolidated Company or Receivables Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation; provided that
the foregoing exclusion shall not apply to CDB/Infotek so long as there is at
least $1 of outstanding intercompany debt owed by CDB/Infotek to another
Consolidated Company.
"Consolidated Net Worth" means, as of any date of determination,
shareholders' equity of ChoicePoint, determined on a consolidated basis in
conformity with GAAP.
"Consolidated Rental Expense" means, for any fiscal period of
ChoicePoint, the operating lease expense of the Consolidated Companies and the
Receivables Subsidiaries determined in
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accordance with GAAP for leases with an initial term greater than one year, as
disclosed in the notes to ChoicePoint's consolidated financial statements of the
Consolidated Companies or as disclosed in the notes to any Receivable
Subsidiary's financial statements, determined on a consolidated basis in
accordance with GAAP.
"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 ChoicePoint in its consolidated financial statements as of such
date.
"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 ChoicePoint are treated as a single employer
under Section 414 of the Code.
"Construction" means, with respect to any Leased Property, the
construction of the related Building pursuant to the related Plans and
Specifications.
"Construction Agency Agreement" means the Construction Agency
Agreement, dated as of August 29, 2001, between ChoicePoint and the Lessor.
"Construction Agent" means ChoicePoint in its capacity as construction
agent pursuant to the Construction Agency Agreement.
"Construction Budget" is defined in Section 2.4 of the Construction
Agency Agreement.
"Construction Conditions" means the conditions set forth in Section 3.5
of the Master Agreement.
"Construction Contract" means, with respect to any Leased Property,
that certain construction contract, if any, between the related Lessee or the
Construction Agent and a General Contractor for the Construction of the related
Building, which contract shall be assigned to the Lessor, and such assignment
shall be consented to by such General Contractor, pursuant to an assignment of
such construction contract substantially in the form of the Security Agreement
and Assignment set forth as Exhibit D to the Master Agreement.
"Construction Costs" means, with respect to any Leased Property, all
costs of acquisition or ground lease, as applicable, of the related Land, all
closing, development and transaction costs related thereto, including fees,
costs and expenses of attorneys, architects, surveyors, engineers, title and
other insurance companies, appraisers and environmental firms, all costs of
Construction, and all interest and Yield accrued on the Funded Amounts related
to such Leased Property during the Construction Term therefor.
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"Construction Failure Event" is defined in Section 5.1 of the
Construction Agency Agreement.
"Construction Failure Payment" means, with respect to any Leased
Property and as of any date of calculation, an amount equal to (i) 100% of the
related Raw Land Cost, plus (ii) the excess of (A) 89.9% of the Project Costs
(exclusive of Raw Land Cost) incurred as of the date of calculation, minus (B)
the sum of (1) Force Majeure Losses incurred with respect to such Leased
Property during the Construction Term, and (2) the Present Value of any payments
(other than Unrestricted Indemnification Amounts) payable by the Construction
Agent under the Operative Documents that the Construction Agent is legally
required to pay as of the date of calculation (provided that such payments shall
not include any amounts that are payable by the Construction Agent that require
the approval or consent but have not been approved or consented to by the Agent
in accordance with Section 3.4 of the Construction Agency Agreement) that have
not been reimbursed as of the date of calculation.
"Construction Force Majeure Declaration" is defined in Section 3.4 of
the Construction Agency Agreement.
"Construction Force Majeure Event" means, with respect to any Leased
Property:
(a) a flood, earthquake, hurricane, cyclone, tornado or other act
of God arising after the related Closing Date, or
(b) any change in any state or local law, regulation or other
legal requirement arising after such Closing Date and relating
to the use of the Land or the construction of a building on
the Land, or
(c) strikes, lockouts, labor troubles, unavailability of materials
(including delays in delivery), riots, civil unrest,
insurrections or other causes beyond a Lessee's control
which causes damage to the Leased Property or which prevents the Construction
Agent from completing the Construction prior to the Scheduled Construction
Termination Date and which could not have been avoided or which cannot be
remedied by the Construction Agent through the exercise of all commercially
reasonable efforts or the expenditure of funds and, in the case of (b) above,
the existence or potentiality of which was not known to and could not have been
discovered prior to such Closing Date through the exercise of reasonable due
diligence by the Construction Agent.
"Construction Land Interest" means each parcel of Land on which the
related Lessee intends to build a Building and for which the Completion Date has
not yet occurred.
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"Construction Term" means, with respect to any Leased Property, the
period commencing on the related Closing Date and ending on the related
Construction Term Expiration Date, or such shorter period as may result from
earlier termination of the Lease as provided therein.
"Construction Term Expiration Date" means, with respect to any Leased
Property, the earliest of the following:
(a) the related Completion Date,
(b) the date on which the aggregate Funded Amounts equal the
Commitments, and
(c) the related Scheduled Construction Termination Date.
"Contractual Obligation", as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, contract, undertaking, agreement, instrument or other document to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject (including, without limitation, any
restrictive covenant affecting any of the properties of such Person).
"Credit Agreement" means the Revolving Credit Agreement, dated as of
August 5, 1997, among ChoicePoint, the lenders listed therein, Wachovia Bank,
N.A., as administrative agent, and SunTrust Bank, as documentation agent.
"Deed" means, with respect to any Land, a general warranty deed (or, if
the related Title Policy is acceptable to the related Lessee and the Agent, a
special or limited warranty deed, provided that unless consented to by the
related Lessee, the Lessor and the Agent, such deed is not the equivalent of a
quit-claim deed in the applicable jurisdiction), dated on or before the
applicable Closing Date, from the applicable Seller to the Lessor, conveying
such Land.
"Default" means an Event of Default or a Potential Event of Default.
"Documentary Conventions" means the provisions set forth in Paragraph F
of this Appendix A.
"EITF 97-10" means FASB Emerging Issues Task Force Issue No. 97-10.
"Engineer" means, with respect to any Leased Property, the engineer
engaged in connection with the construction of the related Building, if any, who
may be an employee of the General Contractor for such Leased Property.
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"Engineer's Agreement" means, with respect to any Leased Property the
engineering services agreement, if any, between the Construction Agent, in its
capacity as agent for Lessor, and the related Engineer.
"Environmental Audit" means, with respect to each parcel of Land, a
Phase I Environmental Assessment and, if recommended in such Phase I
Environmental Assessment, a Phase II Environmental Assessment, dated no more
than six months prior to the related Closing Date, by an environmental services
firm satisfactory to the Agent.
"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 ChoicePoint 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. ss. 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. ss. 9601-9657, (CERCLA), the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. ss. 1801-1812, the
Toxic Substances Control Act, 15 U.S.C. ss. 2601-2671, the Clean Air Act, 42
U.S.C. ss. 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act,
7 U.S.C. ss. 136 et seq., and all similar federal, state and local environmental
laws, ordinances, rules, orders, statutes, decrees, judgments, injunctions,
codes and regulations, and any other federal, state or local laws, ordinances,
rules, codes and regulations, and any other federal, state or local laws,
ordinances, rules, codes and regulations relating to the environment, human
health or natural resources or the regulation or control of or imposing
liability or standards of conduct concerning human health, the environment,
Hazardous Materials or the clean-up or other remediation of any Leased Property,
or any part thereof, as any of the foregoing may have been from time to time
amended, supplemented or supplanted.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Law.
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"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
Laws.
"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.
"Equifax" means Equifax Inc., a Georgia corporation.
"Equipment" means, with respect to any Leased Property, that portion of
the Building related to such Leased Property that constitutes personal property
for sales tax purposes of the applicable jurisdiction.
"Existing Lease" means the Lease Agreement, dated as of July 31, 1997,
between SunTrust Banks, Inc. and ChoicePoint.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and any successor statute.
"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.
"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.
"Fair Market Sales Value" means, with respect to any Leased Property or
any portion thereof, the fair market sales value as determined by an independent
appraiser chosen by the
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Agent, and, unless an Event of Default has occurred, reasonably acceptable to
the related Lessee, 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
the related Lessee, for the purchase of such Leased Property, without deduction
of any costs or expenses of dismantling and relocating any equipment that
constitutes a part of such Leased Property. Such fair market sales value shall
be calculated as the value for such Leased Property, assuming, in the
determination of such fair market sales value, that such Leased Property is in
the condition and repair required to be maintained by the terms of the Lease
(unless such fair market sales value is being determined for purposes of Section
13.1 of the Lease and except as otherwise specifically provided in the Lease or
the Master Agreement, in which case this assumption shall not be made).
"Federal Funds Rate" means for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of Atlanta, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"Fee Percentage" shall mean, for any day, the applicable rate per annum
set forth below based upon ChoicePoint's ratio of Funded Debt to Consolidated
EBITDA, measured quarterly, effective in the first fiscal quarter immediately
following the date of delivery of the Compliance Certificate to the Agent:
Funded Debt to Consolidated
EBITDA Ratio Fee Percentage
--------------------------- --------------
Greater than or Equal to 3.0:1.0 0.30%
Less than 3.0:1.0 and Greater
than or Equal to 2.5:1.0 0.30%
Less than 2.5:1.0 and Greater
than or Equal to 2.0:1.0 0.25%
Less than 2.0:1.0 0.20%
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For purposes of the foregoing, (i) the Fee Percentage on the initial
Closing Date is 0.20% and shall remain 0.20% through and including September 30,
2001 (by way of example, as of the first day of the third fiscal quarter of
ChoicePoint, the Fee Percentage shall be calculated based upon the ratio of
Funded Debt to Consolidated EBITDA of ChoicePoint reported in the Compliance
Certificate delivered by ChoicePoint for the first fiscal quarter of such fiscal
year of ChoicePoint); and (ii) if ChoicePoint fails to provide the Compliance
Certificate and related financial statements required by Section 5.1 of the
Master Agreement within the applicable time period set forth therein, the Fee
Percentage shall be adjusted to 0.30% on the first day of the following fiscal
quarter until such Compliance Certificate and related financial statements are
delivered.
"Final Rent Payment Date" with respect to any Leased Property is
defined in Section 13.1(e) of the Lease.
"Fiscal Quarter" means any fiscal quarter of ChoicePoint.
"Fiscal Year" means any fiscal year of ChoicePoint.
"Fixed Charge Coverage Ratio" means, as of the last day of any fiscal
quarter of ChoicePoint, the ratio of (A) Consolidated EBITR to (B) Consolidated
Fixed Charges, in each case calculated with respect to the immediately preceding
four fiscal quarters ending on such date.
"Force Majeure Losses" means, with respect to any Leased Property and
as of any date of calculation, the loss incurred by the Lessor in connection
with a Construction Force Majeure Event with respect to which a Construction
Force Majeure Declaration has been made, measured by the sum of (i) the lower of
(A) the insurance proceeds paid with respect thereto plus the related deductible
amount and (B) the reduction in Fair Market Sales Value of the Leased Property
as a result of the Construction Force Majeure Event as set forth in an
Appraisal, plus (ii) other direct costs incurred by the Lessor or by the
Construction Agent that the Lessor has consented to in accordance with Section
3.4 of the Construction Agency Agreement in connection with such Construction
Force Majeure Event to the extent such costs are not covered by insurance;
provided that insurance proceeds shall be used in such calculation only to the
extent the event giving rise to the loss can be remediated for an amount equal
to the resulting insurance proceeds plus the deductible; provided, further, that
it is expressly understood and agreed that Force Majeure Losses shall not
include the costs of repairing damage occasioned not as a result of the
Construction Force Majeure Event, but as a result of the Construction Agent's
failure to take all reasonable steps to minimize the damages caused by such
Construction Force Majeure Event.
"Foreign Plan" means any pension, profit sharing, deferred
compensation, or other employee benefit plan, program or arrangement maintained
by any Foreign Subsidiary which,
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under applicable local law, is required to be funded through a trust or other
funding vehicle, but shall not include any benefit provided by a foreign
government or its agencies.
"Foreign Subsidiary" means each Consolidated Company that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof.
"Funded Amount" means, as to the Lessor, the Lessor's Invested Amounts,
and, as to each Lender, the outstanding principal amount of such Lender's Loans.
"Funded Debt" means all Indebtedness for money borrowed, Indebtedness
evidenced or secured by purchase money Liens, capitalized leases, outstandings
under asset securitization vehicles, conditional sales contracts and similar
title retention debt instruments, including any current maturities of the
foregoing, which by its terms matures more than one year from the date of any
calculation thereof or which is renewable or extendable at the option of the
obligor to a date beyond one year from such date. The calculation of Funded Debt
shall include (i) all Funded Debt of the Consolidated Companies and the
Receivables Subsidiaries, plus (ii) all Funded Debt of other Persons to the
extent guaranteed by a Consolidated Company or a Receivables Subsidiary, to the
extent supported by a letter of credit issued for the account of a Consolidated
Company or a Receivables Subsidiary, or as to which and to the extent which a
Consolidated Company or a Receivables Subsidiary or their respective assets
otherwise have become liable for payment thereof, plus (iii) the redemption
amount with respect to the stock of ChoicePoint required to be redeemed during
the next succeeding twelve months at the option of the holder or its
Subsidiaries. Notwithstanding the foregoing, "Funded Debt" shall exclude the
Operative Documents and all operating lease obligations except that (A) as of
the earlier of (i) September 30, 2002 and (ii) the effective date of any
revolving credit agreement entered into in replacement of the Credit Agreement,
"Funded Debt" shall include the principal or invested amount of all synthetic
leases pursuant to which any Consolidated Company is the lessee and (B) for
purposes of calculating the Funded Debt to Consolidated EBITDA Ratio for the
calculation of Applicable Margin and Fee Percentage, "Funded Debt" shall only
include the principal or invested amount of all synthetic leases entered into by
any Consolidated Company after the date of the Master Agreement.
"Funding" means any funding by the Funding Parties pursuant to Section
2.2 of the Master Agreement.
"Funding Date" means each Closing Date and each other date on which a
Funding occurs under Section 2 of the Master Agreement.
"Funding Parties" means the Lessor and the Lenders, collectively.
"Funding Party Balance" means, with respect to any Leased Property, (i)
for the Lessor as of any date of determination, an amount equal to the sum of
the outstanding related Lessor's
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Invested Amount, all accrued and unpaid Yield on such outstanding related
Lessor's Invested Amount, all unpaid related fees owing to the Lessor under the
Operative Documents, and all other related amounts owing to the Lessor by the
Lessees under the Operative Documents, and (ii) for each Lender as of any date
of determination, an amount equal to the sum of the outstanding principal of
such Lender's related Loans, all accrued and unpaid interest thereon, all unpaid
related fees owing to such Lender under the Operative Documents, and all other
related amounts owing to such Lender by the Lessees under the Operative
Documents.
"Funding Request" is defined in Section 2.2 of the Master Agreement.
"Funding Termination Date" means the earliest of (i) April 31, 2003,
subject to the occurrence of a Construction Force Majeure Event, and (ii) the
termination of the Commitments pursuant to Section 5.2 of the Loan Agreement.
"Future Value" means, with respect to any component of the Recourse
Deficiency Percentage, the accreted value of such component as of the end of the
Base Lease Term, that is giving effect to the time value of money using the
Implicit Rate.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"General Contractor" with respect to any Leased Property means the
general contractor therefor selected by the Construction Agent.
"General Partner" means Atlantic Financial Managers, Inc., a Texas
corporation.
"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 citations, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of any Leased Property.
"Governmental Authority" shall include the country, the state, county,
city and political subdivisions in which any Person or such Person's Property is
located or which exercises valid jurisdiction over any such Person or such
Person's Property, and any court, agency, department, commission, board, bureau
or instrumentality of any of them, including monetary authorities which
exercises valid jurisdiction over any such Person or such Person's Property.
Unless
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otherwise specified, all references to Governmental Authority herein shall mean
a Governmental Authority having jurisdiction over, where applicable,
ChoicePoint, the Subsidiaries or any of their Property or the Agent or any
Funding Party.
"Governmental Requirement" shall mean any law, statute, code,
ordinance, order, determination, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, authorization or other directive or
requirement, including Environmental Laws and occupational, safety and health
standards or controls, of any Governmental Authority.
"Ground Lease" means, with respect to any Land, the ground lease
between the related Ground Lessor and the Lessor pursuant to which a leasehold
estate is conveyed in the Land to the Lessor.
"Ground Lessor" means, as to any Land, the ground lessor of such Land.
"Guarantor" means ChoicePoint, in its capacity as guarantor under the
Guaranty Agreement.
"Guaranty" shall mean any contractual obligation, contingent or
otherwise, of a Person with respect to any Indebtedness or other obligation or
liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which guaranty is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Guaranty Agreement" means the Guaranty, dated as of August 29, 2001 by
the Guarantor in favor of the Funding Parties.
"Hazardous Material" means any substance, waste or material which is
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous, including petroleum, crude oil or any fraction
thereof, petroleum derivatives, by products and other hydrocarbons, or which is
or becomes regulated under any Environmental Law by any Governmental Authority,
including any agency, department, commission, board or instrumentality of the
United States, any jurisdiction in which a Leased Property is located or any
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political subdivision thereof and also including, without limitation, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs") and radon
gas.
"IDB Documentation" means the Bonds, each IDB Lease and all other
agreements, documents, contracts and instruments entered into in connection with
any Bonds or IDB Property.
"IDB Property" means each Leased Property that is the subject of Bonds.
"IDB Lease" means a lease between the Lessor and an Authority with
respect to a Leased Property.
"Implicit Rate" means the weighted average of the Lessor Rate and the
rate at which interest on the Lenders' Loans is capitalized, each as in effect
on the date of calculation based on the outstanding Funded Amounts.
"Indebtedness" of any Person means, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) obligations or other liabilities under currency
contracts, interest rate hedging contracts, or similar agreements or
combinations thereof to the extent required to be disclosed in such Person's
financial statements in accordance with GAAP.
"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 any Lessee or
the Guarantor be an Indemnitee.
"Initial Closing Date" means the Closing Date for the first Leased
Property acquired by the Lessor.
"Investment" means, when used with respect to any Person, any direct or
indirect advance, loan or other extension of credit (other than the creation of
receivables in the ordinary course of business) or capital contribution by such
Person (by means of transfers of property to others or payments for property or
services for the account or use of others, or otherwise) to any Person, or any
direct or indirect purchase or other acquisition by such Person of, or of a
beneficial interest in, Capital Stock, partnership interests, bonds, notes,
debentures or other securities issued by any other Person. Each Investment shall
be valued as of the date made;
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provided that any Investment or portion of an Investment consisting of
Indebtedness shall be valued at the outstanding principal balance thereof as of
the date of determination.
"Joinder Agreement" means an agreement substantially in the form of
Exhibit E to the Master Agreement pursuant to which a Subsidiary of ChoicePoint
shall become a Lessee.
"Land" means the land described in Appendix B to the related Lease
Supplement.
"Lease" means the Master Lease Agreement, dated as of August 29, 2001,
among the Lessees and the Lessor, together with each Lease Supplement.
"Lease Balance" means, with respect to all of the Leased Properties, as
of any date of determination, an amount equal to the aggregate sum of the
outstanding Funded Amounts of all Funding Parties (including all Additional
Amounts), all accrued and unpaid interest on the Loans (including interest on
Additional Amounts funded by the Lenders), all accrued and unpaid Yield on the
Lessor's Invested Amounts (including Yield on Additional Amounts funded by
Lessor), all unpaid fees owing to the Funding Parties under the Operative
Documents, and all other amounts owing to the Funding Parties by any Lessee
under the Operative Documents.
"Lease Supplement" is defined in Section 2.2 of the Lease.
"Lease Term" with respect to any (i) Leased Property that is a
Construction Land Interest, means the period from the Closing Date for such
Leased Property to the Completion Date for such Leased Property (or such shorter
period as may result from earlier termination of the Lease as provided therein)
plus the Base Lease Term therefor and (ii) any other Leased Property, the Base
Lease Term therefor.
"Lease Termination Date" means the last day of the Lease Term.
"Leased Property" means Land and the related Building(s). For purposes
of the Lease, "Leased Property" means the Land identified in a Lease Supplement
to the Lease and the Buildings related thereto, unless the context provides
otherwise.
"Leased Property Balance" means, with respect to any Leased Property,
as of any date of determination, an amount equal to the aggregate sum of the
outstanding related Funded Amounts (including all Additional Amounts related to
such Leased Property) of all Funding Parties, all accrued and unpaid interest on
the related Loans (including interest on Additional Amounts related to such
Leased Property funded by the Lenders), all accrued and unpaid Yield on the
related Lessor's Invested Amounts (including Yield on Additional Amounts related
to such Leased Property funded by Lessor), all related unpaid fees owing to the
Funding Parties under the Operative Documents, and all other amounts owing to
the Funding Parties by the related Lessee under the Operative Documents.
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"Lender Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of interest accrued on the Loans pursuant to Section 2.4 of the
Loan Agreement during such Rent Period, provided that Lender Basic Rent shall
not include any Additional Amounts or any interest accrued on any Loans that
constitute Additional Amounts.
"Lenders" means such financial institutions as are, or who may, as
permitted by Section 6.2(b) of the Master Agreement, hereafter become, parties
to the Loan Agreement as lenders to the Lessor.
"Lending Office" for each Lender means the office such Lender
designates in writing from time to time to ChoicePoint and the Agent.
"Lessee" is defined in the preamble to the Master Agreement. The
"related" Lessee with respect to any Leased Property means the Lessee that is a
party to the Lease Supplement for such Leased Property or that is leasing such
Leased Property, as the case may be.
"Lessor" is defined in the preamble to the Master Agreement.
"Lessor Basic Rent" means, for any Rent Period, the aggregate amount of
Yield accrued and unpaid on the Lessor's Invested Amounts under Section 2.3(a)
of the Master Agreement during such Rent Period, provided that Lessor Basic Rent
shall not include any Additional Amounts or any Yield on any of the Lessor's
Invested Amounts that constitute Additional Amounts.
"Lessor Liens" means Liens on or against any Leased Property, the
Lease, any other Operative Document or any payment of Rent (a) which result from
any act or omission of, or any Claim against, the Lessor, or any Person claiming
through the Lessor unrelated to the transactions contemplated by the Operative
Documents or from Lessor's failure to perform as required under the Operative
Documents or (b) which result from any Tax owed by the Lessor, or any Person
claiming through the Lessor, except any Tax for which a Lessee is obligated to
indemnify (including, without limitation, in the foregoing exception, any
assessments with respect to any Leased Property noted on the related Title
Policy or assessed in connection with any construction or development by a
Lessee or the Construction Agent).
"Lessor Rate" is defined in the Lessor Side Letter.
"Lessor Side Letter" means the letter agreement, dated as of August 29,
2001, between ChoicePoint and the Lessor.
"Lessor's Invested Amount" means the amounts funded by the Lessor
pursuant to Section 2 of the Master Agreement that are not proceeds of Loans by
a Lender, as such amount may be
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increased during the related Construction Term pursuant to Section 2.3(c) of the
Master Agreement.
"LIBOR" means, for any Rent Period, with respect to LIBOR Advances the
offered rate for deposits in U.S. Dollars, for a period comparable to the Rent
Period and in an amount comparable to such Advances, appearing on the Telerate
Screen Page 3750 as of 11:00 A.M. (London, England time) on the day that is two
London Business Days prior to the first day of the Rent Period. If two or more
of such rates appear on the Telerate Screen Page 3750, the rate for that Rent
Period shall be the arithmetic mean of such rates. If the foregoing rate is
unavailable from the Telerate Screen for any reason, then such rate shall be
determined by the Agent from the Reuters Screen LIBO Page or, if such rate is
also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Agent to ChoicePoint
and the other Lenders; in any such case rounded, if necessary, to the next
higher 1/100 of 1.0%, if the rate is not such a multiple.
"LIBOR Advance" means that portion of the Funded Amount bearing
interest at a rate based on LIBOR.
"Lien" shall mean any mortgage, pledge, security interest, lien,
charge, hypothecation, assignment, deposit arrangement, title retention,
preferential right, trust or other arrangement having the practical effect of
the foregoing and shall include the interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title retention
agreement.
"Limited Event of Default" means an Event of Default under (1)
paragraph (1) of Article XII of the Lease if such event occurs as a result of a
hostile takeover or (2) paragraph (e), (j), or (p) of Article XII of the Lease,
solely if the breach of the related covenant, representation or warranty was
based on a subjective interpretation of the term "diligently," "Material Adverse
Effect," "material" or "diligently."
"Loan" shall have the meaning specified in Section 2.1 of the Loan
Agreement.
"Loan Agreement" means the Loan Agreement, dated as of August 29, 2001,
among the Lessor, the Agent and the Lenders.
"Loan Documents" means the Loan Agreement, the Note, the Assignments of
Lease and Rents, the Mortgages and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section
5.1 of the Loan Agreement, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition, event or act has
been satisfied.
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"Loan Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
"Margin Regulations" means Regulations T, U and X of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"Margin Stock" shall have the meaning set forth in Regulation U of the
Board of Governors of the Federal Reserve System as the same may be amended or
interpreted from time to time.
"Master Agreement" means the Master Agreement, dated as of August 29,
2001, among the Guarantor, the Lessees, the Lessor, the Agent and the Lenders.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Guarantor, (b) the ability of the Guarantor, ChoicePoint or any Lessee to
perform any of its respective obligations under the Operative Documents to which
it is a party, (c) the rights of or benefits available to the Funding Parties
under the Operative Documents, (d) the value, utility or useful life of any
Leased Property or (e) the priority, perfection or status of the Agent's or any
Funding Party's interest in any Leased Property or in the Lease, the Guaranty or
the Construction Agency Agreement.
"Material Subsidiary" means each Subsidiary of ChoicePoint (other than
the Receivables Subsidiaries), now existing or hereafter established or
acquired, that at any time prior to the Lease Termination Date (i) has or
acquires assets which constitute fifteen percent (15%) or more of the Total
Assets or (ii) accounts for or produces fifteen percent (15%) or more of
Consolidated EBITDA during the most recently completed fiscal year of
ChoicePoint.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, with respect to any Leased Property, that certain
mortgage, deed of trust or security deed, dated as of the related Closing Date,
by the Lessor to the Agent, substantially in the form of Exhibit D-1 or D-2, as
applicable, 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.
"Note" means the 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.
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"Obligations" means all indebtedness (whether principal, interest, fees
or otherwise), obligations and liabilities of the Guarantor and each Lessee to
the Funding Parties (including without limitation all extensions, renewals,
modifications, rearrangements, restructures, replacements and refinancings
thereof, whether or not the same involve modifications to interest rates or
other payment terms of such indebtedness, obligations and liabilities), whether
arising under any of the Operative Documents or otherwise, and whether now
existing or hereafter created, absolute or contingent, direct or indirect, joint
or several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, or
acquired by Funding Parties outright, conditionally or as collateral security
from another, including but not limited to the obligation of the Guarantor and
each Lessee to repay future advances by the Funding Parties, whether or not made
pursuant to commitment and whether or not presently contemplated by the
Guarantor or any Lessee and the Funding Parties under the Operative Documents.
"Obligor" means each Lessee, the Construction Agent and the Guarantor.
"Officer's Certificate" of a Person means a certificate signed by the
Chairman of the Board, the President, any Vice President, any Executive Vice
President, any Senior Vice President, any Administrative Vice President, the
Treasurer, any Assistant Treasurer, the Controller or the Secretary of such
Person, signing alone.
"Operative Documents" means the Master Agreement, the Guaranty
Agreement, the Purchase Agreements, the Deeds, the Lease, each Security
Agreement and Assignment, the Loan Agreement, the Assignments of Lease and
Rents, the Mortgages, the Note, the Ground Leases, the Joinder Agreements, the
IDB Documentation, the Construction Agency Agreement, and the other documents
delivered in connection with the transactions contemplated by the Master
Agreement, in each case if such document has been executed and delivered by the
parties thereto as of the date of determination.
"Overdue Rate" means the lesser of (a) the highest interest rate
permitted by Applicable Law and (b) an interest rate per annum (calculated on
the basis of a 365-day (or 366-day, if appropriate) year equal to 2.0% above the
Base Rate in effect from time to time or, in the case of Yield, 2% above the
Lessor Rate.
"Partial Purchase Option" is defined in Section 14.1(b) of the Lease.
"Partnership Agreement" means the Agreement of Limited Partnership of
Atlantic Financial Group, Ltd., dated as of February 28, 1996, among the General
Partner and the persons listed on Schedule A thereto as limited partners.
"Payment Date" means the last day of each Rent Period.
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"PBGC" means the Pension Benefit Guaranty Corporation, or any entity
succeeding to any or all of its functions.
"Permitted Investments" means: (a) direct obligations of the United
States of America, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any Lender or by any
bank or trust company organized under the laws of the United States of America
or any state thereof whose short-term unsecured debt is rated A-1 or better or
P-1 by S&P or Moody's, respectively, and having capital, surplus and undivided
profits of at least $500,000,000, maturing not more than 90 days from the date
of acquisition thereof; (c) commercial paper rated A-1 or better or P-1 by S&P
or Moody's, respectively, maturing not more than one month from the date of
acquisition thereof; (d) commercial paper of any Lender (or any Affiliate
thereof located in the United States of America) that is rated A-1 or better or
P-1 by S&P or Moody's, respectively, maturing not more than one month from the
date of acquisition thereof; (e) repurchase agreements entered into with any
Lender or with any bank or trust company satisfying the conditions of clause (b)
hereof that is secured by any obligation of the type described in clauses (a)
through (d) of this definition; and (f) money market funds acceptable to the
Required Lenders.
"Permitted Lease Balance" means, with respect to any Leased Property
and calculated as of any date, (i) the Leased Property Balance with respect to
such Leased Property as of the date of such calculation, minus (ii) Force
Majeure Losses with respect to such Leased Property, plus (iii) the amount of
insurance proceeds applied towards the remediation of such Force Majeure Losses.
For purposes of this definition, Leased Property means the Raw Land and/or the
Building subject to a particular Lease Supplement.
"Permitted Lien" means: (a) Liens for Taxes not assessed or, if
assessed, not yet due and payable, or are being contested in good faith by
appropriate proceedings; (b) repairman's, mechanic's, carrier's or other similar
Liens arising in the ordinary course of business or by operation of law securing
obligations that are not more than 30 days overdue, which have been bonded or
which are being contested in good faith by appropriate proceedings; (c) Lessor
Liens; (d) Liens of subleases permitted by the Lease; (e) Liens arising out of
judgments or awards with respect to which appeals or other proceedings for
review are being prosecuted in good faith and for which adequate provisions have
been made; (f) easements, rights of way and other encumbrances on title to real
property to the extent permitted by the Lease; and (g) Liens described on the
Title Policy delivered in connection with the related Leased Property on the
Closing Date therefor, but only if, in the case of Liens being contested as
described in clause (a), (b) or (e) above, (i) adequate reserves have been
provided by the related Lessee for the payment of the Taxes or other
obligations; and (ii) such proceedings, or the continued existence of such Lien,
do not give rise to any substantial likelihood of the sale, forfeiture or other
loss of the related Leased Property or any interests therein, or any likelihood
of criminal liability on the part of the Agent or any Funding Party.
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"Person" means an individual, corporation, company, partnership,
limited liability company, joint venture, voluntary association, trust,
unincorporated organization or government or any agency, instrumentality or
political subdivision thereof or any other form of entity.
"Plan" means any "employee benefit plan" (as defined in Section 3(3) of
ERISA), including, but not limited to, any defined benefit pension plan, profit
sharing plan, money purchase pension plan, savings or thrift plan, stock bonus
plan, employee stock ownership plan, Multiemployer Plan, or any plan, fund,
program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits, but shall exclude any Foreign Plan.
"Plans and Specifications" means with respect to any Building the final
plans and specifications for such Building, which may be standard forms for
buildings of that type, and, if applicable, referred to by the Appraiser in the
Appraisal, as such Plans and Specifications may be hereafter amended,
supplemented or otherwise modified from time to time.
"Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become an Event of Default.
"Present Value" with respect to any payment to be made in the future
means the amount of such payment, discounted to present value as of the date of
calculation employing a discount rate equal to the Implicit Rate, and, with
respect to any payment made prior to the date of such calculation means the
amount of such payment, plus interest on such amount calculated at the Implicit
Rate for such Leased Property.
"Project Costs" means, as of any date and with respect to any Leased
Property, those portions, in the aggregate, of the Funded Amount for such Leased
Property as of such date that, when expended by the Lessor, were, or would have
been, capitalized by Lessor in accordance with GAAP. For purposes of calculating
the Construction Failure Payment, "Project Costs" shall also include other costs
related to Construction paid to third parties other than the Funding Parties as
described in EITF 97-10. For purposes of calculating the Recourse Deficiency
Percentage, as used in this definition, Leased Property means the Raw Land
and/or the Building subject to a particular Lease Supplement.
"Properties" means all real property owned, leased or otherwise used or
occupied by ChoicePoint or any Consolidated Subsidiary, wherever located.
"Purchase Agreement" means with respect to any Land, the purchase
agreement or option agreement, as the case may be, with the Seller for the
conveyance of such Land to the Lessor.
"Purchase Option" is defined in Section 14.1(a) of the Lease.
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"Quarterly Payment Date" means the last Business Day of each March,
June, September and December of each year.
"Rating Agency" means either Moody's or S&P.
"Raw Land" means, with respect to any Leased Property, the parcel of
land described in the related Lease Supplement, excluding any improvements
thereon.
"Raw Land Cost" means, with respect to any Leased Property, the
acquisition cost of the Raw Land.
"Receivables Subsidiaries" means, collectively, ChoicePoint Capital,
Inc., a Delaware corporation, and ChoicePoint Financial, Inc., a Delaware
corporation.
"Recourse Deficiency Amount" means, with respect to any Leased
Property, calculated as of the Completion Date, in the case of Leased Properties
that shall have been subject to the Construction Agency Agreement, or the
Closing Date, in the case of all other Leased Properties, for such Leased
Property, the result of (A) the Recourse Deficiency Percentage times (B) the
Project Costs for such Leased Property; provided, however, that, if Raw Land is
leased pursuant to a separate Lease Supplement, the Recourse Deficiency Amount
with respect to such Leased Property shall equal the Raw Land Cost with respect
to such Raw Land. For purposes of this definition, Leased Property means the Raw
Land and/or the Building subject to a particular Lease Supplement.
"Recourse Deficiency Percentage" means, with respect to any Leased
Property, the percentage set forth in the related Lease Supplement calculated as
follows and expressed as a percentage: (a) the Future Value of: ((i) 89.9% of
(x) the estimated Project Cost (estimated as of the Closing Date for such Leased
Property based upon the Construction Budget as of such date) or (y) the actual
Project Cost in the case of Leased Properties not subject to the Construction
Agency Agreement, less (ii) the Present Value, as of such date, of any "minimum
lease payments" with respect to such Leased Property as such term is used in
Section 7(d) of Financial Accounting Standard No. 13 (excluding for purposes of
this calculation the Recourse Deficiency Amount)), divided by (b) such estimated
or actual Project Cost, as the case may be.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Regulations" means the income tax regulations promulgated from time to
time under and pursuant to the Code.
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"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means, with respect to any Leased Property, the earlier
of (i) the date that the Lease Balance has been paid in full, and (ii) the date
on which the Agent gives written notice to the Lessor that the Lenders release
any and all interest they may have in such Leased Property, and all proceeds
thereof, and any rights to direct, consent or deny consent to any action by the
Lessor with respect to such Leased Property.
"Remarketing Option" is defined in Section 14.6 of the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Period" means, (x) in the case of Base Rate Advances, the period
from, and including, a Quarterly Payment Date to, but excluding, the next
succeeding Quarterly Payment Date and (y) in the case of LIBOR Advances:
(1) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
LIBOR Advance and ending one, two or three months thereafter,
as selected by ChoicePoint in its Funding Notice or Payment
Date Notice, as the case may be, given with respect thereto;
and
(2) thereafter, each period commencing on the last day of the next
preceding Rent Period applicable to such LIBOR Advance and
ending one, two or three months thereafter, as selected by
ChoicePoint by irrevocable notice to the Agent in its related
Payment Date Notice;
provided that:
(a) The initial Rent Period for any Funding shall
commence on the Funding Date of such Funding and each Rent Period
occurring thereafter in respect of such Funding shall commence on the
day on which the next preceding Rent Period expires;
(b) If any Rent Period would otherwise expire on a day
which is not a Business Day, such Rent Period shall expire on the next
succeeding Business Day, provided that if any Rent Period in respect of
LIBOR Advances would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day
occurs in such month, such Rent Period shall expire on the next
preceding Business Day;
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(c) Any Rent Period in respect of LIBOR Advances which
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Rent Period shall, subject to
paragraph (d) below, expire on the last Business Day of such calendar
month;
(d) No Rent Period shall extend beyond the Lease
Termination Date; and
(e) At any one time, there shall be no more than five (5)
Rent Periods.
"Report" is defined in Section 7.6 of the Master Agreement.
"Required Funding Parties" means, at any time, Funding Parties holding
an aggregate outstanding principal amount of Funded Amounts equal to at least
66-2/3% of the aggregate outstanding principal amount of all Funded Amounts.
"Required Lenders" means, at any time, Funding Parties holding an
aggregate outstanding principal amount of Loans equal to at least 66-2/3% of the
aggregate outstanding principal amount of all Loans.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"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, any Administrative Vice President, the Secretary,
any Assistant Secretary, the Treasurer, or any Assistant Treasurer.
"Reuters Screen" means, when used in connection with any designated
page and LIBOR, the display page so designated on the Reuters Monitor Money
Rates Service (or such other page as may replace that page on that service for
the purpose of displaying rates comparable to LIBOR).
"S&P" means Standard & Poor's Ratings Service, a division of The
XxXxxx-Xxxx Corporation.
"Scheduled Construction Termination Date" means with respect to any
Building eighteen (18) months after the Closing Date for the related Land,
subject to the occurrence of a Construction Force Majeure Event, but in no event
later than the Lease Termination Date.
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"SEC" means the United States Securities and Exchange Commission, or
any successor Governmental Authority.
"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.
"Security Agreement and Assignment" means, with respect to any Leased
Property, the Security Agreement and Assignment (Construction Contract,
Architect's Agreement, Permits, Licenses and Governmental Approvals, and Plans,
Specifications and Drawings) from the Construction Agent to the Lessor,
substantially in the form of Exhibit C to the Master Agreement.
"Seller" means as to any Leased Property, the seller thereof to the
Lessor on the related Closing Date.
"Solvent" means, as to any Person at any time, that (i) each of the
fair value and the present fair saleable value of such Person's assets
(including any rights of subrogation or contribution to which such Person is
entitled, under any of the Operative Documents or otherwise) is greater than
such Person's debts and other liabilities (including contingent, unmatured and
unliquidated debts and liabilities) and the maximum estimated amount required to
pay such debts and liabilities as such debts and liabilities mature or otherwise
become payable; (ii) such Person is able and expects to be able to pay its debts
and other liabilities (including, without limitation, contingent, unmatured and
unliquidated debts and liabilities) as they mature; and (iii) such Person does
not have unreasonably small capital to carry on its business as conducted and as
proposed to be conducted.
"Spin-Off" means the spinoff of stock of ChoicePoint by Equifax to
shareholders of Equifax.
"Spin-Off Date" means the date on which the Spin Off is consummated.
"Subsidiary" means, with respect to any Person, any corporation or
other entity (including, without limitation, partnerships, joint ventures, and
associations) regardless of its jurisdiction of organization or formation, at
least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
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determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries; provided that the Receivables
Subsidiaries shall not be deemed to be Subsidiaries under the Operative
Documents.
"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 a 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 all fees payable to the Agent or any
Funding Party, amounts payable under Article XIV of the Lease and amounts
payable under Article VII of the Master Agreement, 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.
"Tax" or "Taxes" is defined in Section 7.4 of the Master Agreement.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time and any successor statute.
"Tax Indemnitee" means the Lessor, the Agent, each Lender and their
respective Affiliates, successors, permitted assigns, permitted transferees,
employees, officers, directors and agents thereof, provided, however, that in no
event shall any Lessee or the Guarantor be a Tax Indemnitee.
"Telerate" means, when used in connection with any designated page and
LIBOR, the display page so designated on the Dow Xxxxx Telerate Service (or such
other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"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 Agent.
"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.
"Transaction" means all the transactions and activities referred to in
or contemplated by the Operative Documents.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from
time to time.
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"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.
"Unrestricted Environmental Indemnification Amounts" means, with
respect to any Leased Property, any Unrestricted Indemnification Amounts of the
type described in subpart (i)(D) of the definition of Unrestricted
Indemnification Amounts.
"Unrestricted Indemnification Amounts" means, with respect to any
Leased Property (i) any amounts payable by the Construction Agent with respect
to such Leased Property pursuant to (A) Section 3.3(ii) of the Construction
Agency Agreement, (B) Section 3.3(iii) of the Construction Agency Agreement, (C)
that portion of Section 3.3(i) of the Construction Agency Agreement within the
parenthetical phrase within such Section 3.3(i) relating to Claims for personal
injury or damage to property, or (D) any provision of any Operative Document
requiring indemnification for Claims arising from environmental conditions with
respect to such Leased Property and (ii) any other amounts that EITF 97-10
allows a Lessee to pay that are capitalizable under GAAP and are not required to
be included in the calculation of a Lessee's maximum guaranty amount under EITF
97-10.
"Voting Stock" shall mean the securities of any class or classes of
ChoicePoint the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors of
ChoicePoint (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) are at the time directly or indirectly owned by ChoicePoint.
"Yield" is defined in Section 2.3 of the Master Agreement.
F. Documentary Conventions. The following provisions shall be
applicable to each Operative Document.
SECTION 1. Notices. All notices, requests, demands or other
communications to or upon the respective parties to each agreement to which the
Documentary Conventions apply shall be addressed to such parties at the
addresses therefor as set forth in Schedule I hereto, or such other address as
any such party shall specify to the other parties hereto, and shall be deemed to
have been given (i) the Business Day after being sent, if sent by overnight
courier service; (ii) the Business Day received, if sent by messenger; (iii) the
day sent, if sent by facsimile and confirmed electronically or otherwise during
business hours of a Business Day (or on the next Business Day
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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 2. Counterparts. Each agreement to which the Documentary
Conventions apply may be executed by the parties thereto in separate
counterparts (including by facsimile), each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 3. Amendments. No Operative Document nor any of the
terms thereof may be terminated, amended, supplemented, waived or modified with
respect to the Lessees or any Funding Party, except (a) in the case of a
termination, amendment, supplement, waiver or modification to be binding on the
Lessees, with the written agreement or consent of ChoicePoint, and (b) in the
case of a termination, amendment, supplement, waiver or modification to be
binding on the Funding Parties, with the written agreement or consent of the
Required Funding Parties; provided, however, that
(x) notwithstanding the foregoing provisions of this
Section 3, the consent of each Funding Party affected thereby shall be
required for any amendment, modification or waiver:
(i) amending, modifying, waiving or
supplementing any of the provisions of
Section 6 of the Master Agreement or the representations of
such Funding Party in Section 4.2 or 4.3 of the Master
Agreement or this Section 3 or changing the definition of
"Required Funding Parties" or "Required Lenders";
(ii) increasing the Commitment of such Funding
Party or 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 Leased Property Balance, the Lease Balance, any
Funding Party Balance, Recourse Deficiency Amount, interest or
Yield; or
(iii) consenting to any assignment of the Lease or
the extension of the Lease Term, releasing any of the
collateral assigned to the Agent pursuant to any Mortgage and
any Assignment of Lease and Rents (but excluding a release of
any rights that the Agent may have in any Leased Property, or
the proceeds thereof as contemplated in the definition of
"Release Date"), releasing any Lessee from its obligations in
respect of the payments of Rent and the Lease Balance,
releasing the Guarantor from its obligations under the
Guaranty Agreement or the other Operative Documents or
changing the absolute and unconditional character of any such
obligation;
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(y) no such termination, amendment, supplement, waiver or
modification shall, without the written agreement or consent of the
Lessor, the Agent and the Required Lenders, be made to the Lease or the
Construction Agency Agreement; 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 Mortgages and the Assignments of Lease
and Rents without the consent of ChoicePoint (such consent not to be
unreasonably withheld or delayed); provided that in no event may the
Loan Agreement be amended so as to increase the amount of Basic Rent
payable by any Lessee without the consent of ChoicePoint.
SECTION 4. Headings, etc. The Table of Contents and headings of
the various Articles and Sections of each agreement to which the Documentary
Conventions apply are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.
SECTION 5. Parties in Interest. Except as expressly provided
therein, none of the provisions of any agreement to which the Documentary
Conventions apply is intended for the benefit of any Person except the parties
thereto and their respective successors and permitted assigns.
SECTION 6. GOVERNING LAW. EACH AGREEMENT TO WHICH THE
DOCUMENTARY CONVENTIONS APPLY HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
SECTION 7. Severability. Any provision of each agreement to
which the Documentary Conventions apply 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. Submission to Jurisdiction; Waivers. Each party to
an agreement to which the Documentary Conventions apply hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to the 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 United States of America for the Northern District of
Georgia, and appellate
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courts from any thereof; provided that this provision shall not limit a
party's right to remove such legal action or proceeding from a Georgia
state court to a Federal court sitting in the Northern District of
Georgia.
(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 I hereto or
at such other address of which the other parties hereto shall have been
notified pursuant to Section 1; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law.
EACH PARTY TO EACH AGREEMENT TO WHICH THE DOCUMENTARY CONVENTIONS APPLY
HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
SUCH AGREEMENT, ANY OTHER OPERATIVE DOCUMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY.
SECTION 9. NO ORAL AGREEMENTS. THE OPERATIVE DOCUMENTS EMBODY
THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL
OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER THEREOF. THE OPERATIVE DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES OR ANY COURSE OF PRIOR DEALINGS. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 10. Construction. No agreement to which the Documentary
Conventions apply shall be construed more strictly against any one party, it
being recognized that all parties have contributed substantially and materially
to the preparation and negotiations of the Operative Documents.
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SCHEDULE I
ADDRESSES FOR NOTICES
ChoicePoint or any Lessee: ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxx, Treasurer
Fax No.: 770/000-0000
Lessor: Atlantic Financial Group, Ltd.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
Fax No.: 214/000-0000
Lender: Sun Trust Bank
303 Peachtree Street
MC 0000, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxxxx
Fax No.: 404/000-0000
with a copy to:
SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 2400
MC 3951
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax No.: 404/000-0000
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax No.: 617/000-0000
BNP Paribas
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx
Fax No.: 713/000-0000
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