Exhibit 10.4
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AMENDED AND RESTATED MASTER LEASE AGREEMENT
Dated as of June 26, 2003
between
SUNTRUST EQUITY FUNDING, LLC, as Lessor,
and
CHOICEPOINT INC. AND CERTAIN SUBSIDIARIES
OF CHOICEPOINT INC., as Lessees
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................................................... 1
ARTICLE II LEASE OF LEASED PROPERTY........................................................................ 1
Section 2.1 Acceptance and Lease of Property................................................. 1
Section 2.2 Acceptance Procedure............................................................. 2
ARTICLE III RENT............................................................................................ 2
Section 3.1 Basic Rent....................................................................... 2
Section 3.2 Supplemental Rent................................................................ 2
Section 3.3 Method of Payment................................................................ 3
Section 3.4 Late Payment..................................................................... 3
Section 3.5 Net Lease; No Setoff, Etc........................................................ 3
Section 3.6 Certain Taxes.................................................................... 4
Section 3.7 Utility Charges.................................................................. 5
ARTICLE IV WAIVERS......................................................................................... 5
ARTICLE V LIENS; EASEMENTS; PARTIAL CONVEYANCES........................................................... 6
ARTICLE VI MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS AND ADDITIONS................................ 7
Section 6.1 Maintenance and Repair; Compliance With Law...................................... 7
Section 6.2 Alterations...................................................................... 7
Section 6.3 Title to Alterations............................................................. 7
ARTICLE VII USE............................................................................................. 8
ARTICLE VIII INSURANCE....................................................................................... 8
ARTICLE IX ASSIGNMENT AND SUBLEASING....................................................................... 10
ARTICLE X LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE....................................................... 10
Section 10.1 Event of Loss.................................................................... 10
Section 10.2 Event of Taking.................................................................. 11
Section 10.3 Casualty......................................................................... 12
Section 10.4 Condemnation..................................................................... 12
Section 10.5 Verification of Restoration and Rebuilding....................................... 12
Section 10.6 Application of Payments.......................................................... 12
Section 10.7 Prosecution of Awards............................................................ 13
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TABLE OF CONTENTS
(continued)
PAGE
Section 10.8 Application of Certain Payments Not Relating to an Event of Taking............... 14
Section 10.9 Other Dispositions............................................................... 14
Section 10.10 No Rent Abatement................................................................ 14
Section 10.11 Construction Land Interests...................................................... 14
ARTICLE XI INTEREST CONVEYED TO LESSEES..................................................................... 14
ARTICLE XII EVENTS OF DEFAULT................................................................................ 15
ARTICLE XIII ENFORCEMENT...................................................................................... 17
Section 13.1 Remedies......................................................................... 17
Section 13.2 Remedies Cumulative; No Waiver; Consents......................................... 20
Section 13.3 Purchase Upon an Event of Default................................................ 20
Section 13.4 Limitation on Liability.......................................................... 20
ARTICLE XIV SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL............................................. 20
Section 14.1 Lessee's Option to Purchase...................................................... 20
Section 14.2 Conveyance to Lessee............................................................. 21
Section 14.3 Acceleration of Purchase Obligation.............................................. 22
Section 14.4 Determination of Purchase Price.................................................. 22
Section 14.5 Purchase Procedure............................................................... 22
Section 14.6 Option to Remarket............................................................... 23
Section 14.7 Rejection of Sale................................................................ 25
Section 14.8 Return of Leased Property........................................................ 25
Section 14.9 Renewal.......................................................................... 25
ARTICLE XV LESSEE'S EQUIPMENT.............................................................................. 26
ARTICLE XVI RIGHT TO PERFORM FOR LESSEE..................................................................... 26
ARTICLE XVII MISCELLANEOUS................................................................................... 26
Section 17.1 Reports.......................................................................... 26
Section 17.2 Binding Effect; Successors and Assigns; Survival................................. 27
Section 17.3 Quiet Enjoyment.................................................................. 27
Section 17.4 Documentary Conventions.......................................................... 27
Section 17.5 Liability of Lessor Limited...................................................... 27
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TABLE OF CONTENTS
(continued)
PAGE
Section 17.6 Estoppel Certificates............................................................ 27
Section 17.7 No Joint Venture................................................................. 28
Section 17.8 No Accord and Satisfaction....................................................... 28
Section 17.9 No Merger........................................................................ 28
Section 17.10 Survival......................................................................... 28
Section 17.11 Chattel Paper.................................................................... 28
Section 17.12 Time of Essence.................................................................. 28
Section 17.13 Recordation of Lease............................................................. 29
Section 17.14 Investment of Security Funds..................................................... 29
Section 17.15 Ground Leases.................................................................... 29
Section 17.16 Land and Building................................................................ 29
Section 17.17 Joint and Several................................................................ 29
Section 17.18 IDB Documentation................................................................ 29
EXHIBIT A Lease Supplement
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THIS AMENDED AND RESTATED MASTER LEASE AGREEMENT (as from time to time
further amended or supplemented and including the Original Lease for the period
that it was in effect, this "Lease"), dated as of June 26, 2003, but effective
as of the Effective Date, is among SUNTRUST EQUITY FUNDING, LLC, a Delaware
limited liability company (together with its successors and assigns hereunder,
the "Lessor"), as Lessor, and CHOICEPOINT INC., a Georgia corporation
("ChoicePoint"), and certain Subsidiaries of ChoicePoint hereafter parties
hereto (individually, with its successors and permitted assigns hereunder, each
a "Lessee" and collectively, the "Lessees"), as Lessees.
PRELIMINARY STATEMENT
A. Atlantic Financial Group, Ltd. ("AFG") and ChoicePoint were
parties to that certain Master Lease Agreement, dated as of August 29, 2001 (as
supplemented or amended prior to the date hereof, the "Original Lease"). AFG
transferred its interests in the Leased Property subject to the Original Lease
to the AFG Transferee, who subsequently merged with Lessor, with Lessor as the
survivor of such merger. In connection therewith, Lessor and Lessees desire to
amend and restate the Original Lease in its entirety pursuant hereto.
X. Xxxxxx will purchase, or acquire a leasehold interest in, from
one or more third parties designated by the Construction Agent, on a Closing
Date, certain parcels of real property to be specified by the Construction
Agent, together with any improvements thereon.
X. Xxxxxx desires to lease to each Lessee, and each Lessee
desires to lease from Lessor, certain of such properties as described on the
Lease Supplement(s) to which such Lessee is a party.
D. If applicable, the Construction Agent will, on behalf of
Lessor, cause to be constructed, certain improvements on such parcels of real
property which as constructed will be the property of Lessor and will become
part of such property subject to the terms of this Lease.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, Lessor
and Lessees hereby agree as follows:
ARTICLE I
DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A to the Amended and Restated Master Agreement,
dated as of June 26, 2003 (as further amended, supplemented or otherwise
modified from time to time, the "Master Agreement") among ChoicePoint, as
Guarantor, the Lessees, Lessor, the financial institutions party thereto as
Lenders and SunTrust Bank, as Agent, for all purposes hereof.
ARTICLE II
LEASE OF LEASED PROPERTY
Section 2.1 Acceptance and Lease of Property. On each Closing Date for
Land, Lessor, subject to the satisfaction or waiver of the conditions set forth
in Section 3 of the Master Agreement, hereby agrees to accept delivery on such
Closing Date of such Land pursuant to the
terms of the Master Agreement, together with any Building or Buildings and other
improvements thereon, and simultaneously to lease to the related Lessee
hereunder for the Lease Term, Lessor's interest in such Land and in such
Building or Buildings and other improvements, together with any Building which
thereafter may be constructed thereon pursuant to the Construction Agency
Agreement, and such related Lessee hereby agrees, expressly for the direct
benefit of Lessor, commencing on such Closing Date for the Lease Term, to lease
from Lessor's interest in such Land to be delivered on such Closing Date,
together with, in the case of Land, Lessor's interest in the Building or
Buildings and other improvements thereon and/or which thereafter may be
constructed thereon pursuant to the Construction Agency Agreement.
Section 2.2 Acceptance Procedure. Lessor hereby authorizes one or more
employees of the related Lessee, to be designated by such Lessee, as the
authorized representative or representatives of Lessor to accept delivery on
behalf of Lessor of that Leased Property identified on the applicable Funding
Request. Each Lessee hereby agrees that such acceptance of delivery by such
authorized representative or representatives and the execution and delivery by
such Lessee on each Closing Date for property to be leased hereunder of a Lease
Supplement in substantially the form of Exhibit A hereto (each, a "Lease
Supplement") (appropriately completed) shall, without further act, constitute
the irrevocable acceptance by such Lessee of that Leased Property which is the
subject thereof for all purposes of this Lease and the other Operative Documents
on the terms set forth therein and herein, and that such Leased Property,
together with, in the case of Land, any and all Buildings and other improvements
thereon and/or to be constructed thereon pursuant to the Construction Agency
Agreement, shall be deemed to be included in the leasehold estate of this Lease
and shall be subject to the terms and conditions of this Lease as of such
Closing Date. The demise and lease of each parcel of Land and each Building
pursuant to this Section 2.2 shall include any additional right, title or
interest in each such parcel of Land and each such Building which may at any
time be acquired by Lessor, the intent being that all right, title and interest
of Lessor in and to each such parcel of Land and each such Building shall at all
times be demised and leased to the related Lessee hereunder.
ARTICLE III
RENT
Section 3.1 Basic Rent. Beginning with and including the first Payment
Date occurring after the Initial Closing Date, each Lessee shall pay to the
Agent the Basic Rent for the Leased Properties subject to a Lease Supplement to
which such Lessee is a party, in installments, payable in arrears on each
Payment Date during the Lease Term, subject to Section 2.3(c) of the Master
Agreement.
Section 3.2 Supplemental Rent. Each Lessee shall pay to the Agent, or
to whomever shall be entitled thereto as expressly provided herein or in any
other Operative Document, any and all Supplemental Rent on the date the same
shall become due and payable and in the event of any failure on the part of such
Lessee to pay any Supplemental Rent, the Agent shall have all rights, powers and
remedies provided for herein or by law or in equity or otherwise in the case of
nonpayment of Basic Rent. All Supplemental Rent to be paid pursuant to this
Section 3.2 shall be payable in the type of funds and in the manner set forth in
Section 3.3, subject to Section 2.3(c) of the Master Agreement.
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Section 3.3 Method of Payment. Basic Rent shall be paid to the Agent,
and Supplemental Rent (including amounts due under Article XIV hereof) shall be
paid to the Agent (or to such Person as may be entitled thereto) or, in each
case, to such Person as the Agent (or such other Person) shall specify in
writing to the related Lessee, and at such place as the Agent (or such other
Person) shall specify in writing to the related Lessee. Each payment of Rent
(including payments under Article XIV hereof) shall be made by the Lessees prior
to 12:00 p.m. (noon) Atlanta, Georgia time at the place of payment in funds
consisting of lawful currency of the United States of America which shall be
immediately available on the scheduled date when such payment shall be due,
unless such scheduled date shall not be a Business Day, in which case such
payment shall be made on the next succeeding Business Day.
Section 3.4 Late Payment. If any Basic Rent shall not be paid on the
date when due, the related Lessee shall pay to the Agent, as Supplemental Rent,
interest (to the maximum extent permitted by law) on such overdue amount from
and including the due date thereof to but excluding the Business Day of payment
thereof at the Overdue Rate.
Section 3.5 Net Lease; No Setoff, Etc. This Lease is a net lease and
notwithstanding any other provision of this Lease, each Lessee shall pay all
Basic Rent and Supplemental Rent, and all costs, charges, assessments and other
expenses foreseen or unforeseen, for which such Lessee or any Indemnitee is or
shall become liable by reason of such Lessee's or such Indemnitee's estate,
right, title or interest in the Leased Properties, or that are connected with or
arise out of the acquisition (except the initial costs of purchase by Lessor of
its interest in any Leased Property, which costs, subject to the terms of the
Master Agreement, shall be funded by the Funding Parties pursuant to the Master
Agreement), construction (except Construction Costs which costs, subject to the
terms of the Master Agreement, shall be funded by the Funding Parties pursuant
to the Master Agreement), installation, possession, use, occupancy, maintenance,
ownership, leasing, repairs and rebuilding of, or addition to, the Leased
Properties or any portion thereof, and any other amounts payable hereunder and
under the other Operative Documents without counterclaim, setoff, deduction or
defense and without abatement, suspension, deferment, diminution or reduction,
and each Lessee's obligation to pay all such amounts throughout the Lease Term,
including the Construction Term, is absolute and unconditional. The obligations
and liabilities of each Lessee hereunder shall in no way be released, discharged
or otherwise affected for any reason, including without limitation: (a) any
defect in the condition, merchantability, design, quality or fitness for use of
any Leased Property or any part thereof, or the failure of any Leased Property
to comply with all Applicable Law, including any inability to occupy or use any
Leased Property by reason of such non-compliance; (b) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of any Leased Property or any part
thereof; (c) any restriction, prevention or curtailment of or interference with
any use of any Leased Property or any part thereof including eviction; (d) any
defect in title to or rights to any Leased Property or any Lien on such title or
rights or on any Leased Property; (e) any change, waiver, extension, indulgence
or other action or omission or breach in respect of any obligation or liability
of or by Lessor, the Agent or any Lender; (f) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceedings relating to any Lessee, Lessor, any Lender, the Agent or any other
Person, or any action taken with respect to this Lease by any trustee or
receiver of any Lessee, Lessor, any Lender, the Agent, any Ground Lessor or any
other Person, or by any court, in any such proceeding; (g) any claim that any
Lessee has or might have against any Person, including without limitation,
Lessor,
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any vendor, manufacturer, contractor of or for any Leased Property or any part
thereof, the Agent, any Ground Lessor, any Governmental Authority, or any
Lender; (h) any failure on the part of Lessor to perform or comply with any of
the terms of this Lease, any other Operative Document, any applicable IDB
Documentation or of any other agreement; (i) any invalidity or unenforceability
or illegality or disaffirmance of this Lease against or by any Lessee or any
provision hereof or any of the other Operative Documents or any provision of any
thereof whether or not related to the Transaction; (j) the impossibility or
illegality of performance by any Lessee, Lessor or both; (k) any action by any
court, administrative agency or other Governmental Authority; (l) any
restriction, prevention or curtailment of or interference with the Construction
or any use of any Leased Property or any part thereof; or (m) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing, whether
or not any Lessee shall have notice or knowledge of any of the foregoing. Except
as specifically set forth in Articles XIV or X of this Lease, this Lease shall
be noncancellable by each Lessee in any circumstance whatsoever and each Lessee,
to the extent permitted by Applicable Law, waives all rights now or hereafter
conferred by statute or otherwise to quit, terminate or surrender this Lease, or
to any diminution, abatement or reduction of Rent payable by such Lessee
hereunder. Each payment of Rent made by a Lessee hereunder shall be final and
such Lessee shall not seek or have any right to recover all or any part of such
payment from Lessor, the Agent, any Lender or any party to any agreements
related thereto for any reason whatsoever. Each Lessee assumes the sole
responsibility for the condition, use, operation, maintenance, and management of
the Leased Properties leased by it and Lessor shall have no responsibility in
respect thereof and shall have no liability for damage to the property of either
any Lessee or any subtenant of any Lessee on any account or for any reason
whatsoever, other than solely by reason of Lessor's willful misconduct or gross
negligence (except for willful misconduct and gross negligence imputed to Lessor
solely as a result of its interest in any Leased Property).
Section 3.6 Certain Taxes. Without limiting the generality of Section
3.5, each Lessee agrees to pay when due all real estate taxes, personal property
taxes, gross sales taxes, including any sales or lease tax imposed upon the
rental payments hereunder or under a sublease, occupational license taxes, water
charges, sewer charges, assessments of any nature and all other governmental
impositions and charges of every kind and nature whatsoever (the "tax(es)"),
when the same shall be due and payable without penalty or interest; provided,
however, that this Section shall not apply to any of the taxes covered by the
exclusion described in Section 7.4(b) of the Master Agreement. It is the
intention of the parties hereto that, insofar as the same may lawfully be done,
Lessor shall be, except as specifically provided for herein, free from all
expenses in any way related to the Leased Properties and the use and occupancy
thereof. Any tax relating to a fiscal period of any taxing authority falling
partially within and partially outside the Lease Term, shall be apportioned and
adjusted between Lessor and the related Lessee. Each Lessee covenants to furnish
Lessor and the Agent, upon the Agent's written request, within forty-five (45)
days after the last date when any tax must be paid by such Lessee as provided in
this Section 3.6, official receipts of the appropriate taxing, authority or
other proof satisfactory to Lessor, evidencing the payment thereof.
So long as no Event of Default has occurred and is continuing, the
related Lessee may defer payment of a tax so long as the validity or the amount
thereof is contested by such Lessee with diligence and in good faith; provided,
however, that such Lessee shall pay the tax in sufficient time to prevent
delivery of a tax deed. Such contest shall be at the related Lessee's sole cost
and expense. Each Lessee covenants to indemnify and save harmless Lessor, the
Agent
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and each Lender from any actual and reasonable costs or expenses incurred by
Lessor, the Agent or any Lender as a result of such contest, which
indemnification shall survive the termination of this Lease; provided that
neither the Agent nor any Lender shall be entitled to claim any indemnity
against any Lessee pursuant to this sentence with respect to any Construction
Land Interest during the Construction Term therefor.
Section 3.7 Utility Charges. Each Lessee agrees to pay or cause to be
paid as and when the same are due and payable all charges for gas, water, sewer,
electricity, lights, heat, power, telephone or other communication service and
all other utility services used, rendered or supplied to, upon or in connection
with the Leased Properties leased by it.
ARTICLE IV
WAIVERS
During the Lease Term, Lessor's interest in the Leased Properties,
including the Equipment, the Building(s) (whether or not completed) and the
Land, is demised and let by Lessor "AS IS" subject to (a) the rights of any
parties in possession thereof, (b) the state of the title thereto existing at
the time Lessor acquired its interest in the Leased Properties, (c) any state of
facts which an accurate survey or physical inspection might show (including the
survey delivered on the related Closing Date), (d) all Applicable Law, and (e)
any violations of Applicable Law which may exist upon or subsequent to the
commencement of the Lease Term. EACH LESSEE ACKNOWLEDGES THAT, ALTHOUGH LESSOR
WILL OWN AND HOLD TITLE TO THE LEASED PROPERTIES, LESSOR IS NOT A MANUFACTURER
OF, OR DEALER IN ANY LEASED PROPERTY, AND IS NOT RESPONSIBLE FOR THE DESIGN,
DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE BUILDING(S) OR ANY ALTERATIONS.
NEITHER LESSOR, THE AGENT NOR ANY LENDER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO
HAVE ANY LIABILITY WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE,
HABITABILITY, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED
PROPERTIES (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTIES (OR ANY
PART THEREOF), ALL SUCH WARRANTIES BEING HEREBY DISCLAIMED, AND NEITHER LESSOR,
THE AGENT NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN OR THE FAILURE OF ANY LEASED PROPERTY, OR ANY PART THEREOF, TO
COMPLY WITH ANY APPLICABLE LAW, except that Lessor hereby represents and
warrants that each Leased Property is and shall be free of Lessor Liens. As
between Lessor and the Lessees, each related Lessee has been afforded full
opportunity to inspect each Leased Property, is satisfied with the results of
its inspections of such Leased Property and is entering into this Lease solely
on the basis of the results of its own inspections and all risks incident to the
matters discussed in the two preceding sentences, as between Lessor, the Agent
or the Lenders on the one hand, and the Lessees, on the other, are to be borne
by the Lessees, except for the foregoing representation and warranty of Lessor
relative to the absence of Lessor Liens. The provisions of this Article IV have
been negotiated, and, except to the extent otherwise expressly stated, the
foregoing provisions are intended to be a complete exclusion and negation of any
representations or warranties by Lessor, the Agent or the Lenders, express or
implied, with respect to the Leased Properties, that may arise pursuant to any
law now or hereafter in effect, or otherwise.
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ARTICLE V
LIENS; EASEMENTS; PARTIAL CONVEYANCES
No Lessee shall directly or indirectly create, incur or assume, and
each Lessee shall promptly discharge, any Lien on or with respect to any Leased
Property, the 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 a Lessee, or any of its contractors or agents or
Alterations constructed by a Lessee, except, in all cases, Permitted Liens.
Notwithstanding the foregoing paragraph, at the request of a Lessee,
Lessor shall, from time to time during the Lease Term and upon reasonable
advance written notice from such Lessee, and receipt of the materials specified
in the next succeeding sentence, consent to and join in any (i) grant of
easements, licenses, rights of way and other rights in the nature of easements,
including, without limitation, utility easements to facilitate Lessees' use,
development and construction of the Leased Properties, (ii) release or
termination of easements, licenses, rights of way or other rights in the nature
of easements which are for the benefit of the Land or the Building(s) or any
portion thereof, (iii) dedication or transfer of portions of the Land, not
improved with a Building, for road, highway or other public purposes, (iv)
execution of agreements for ingress and egress and amendments to any covenants
and restrictions affecting the Land or the Building(s) or any portion thereof
and (v) request to any Governmental Authority for platting or subdivision or
replatting or resubdivision approval with respect to the Land or any portion
thereof or any parcel of land of which the Land or any portion thereof forms a
part or a request for rezoning or any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall be
subject to the requirements that:
(a) any such action shall be at the sole cost and expense
of the requesting Lessee and such Lessee shall pay all actual and
reasonable out-of-pocket costs of Lessor, the Agent and any Lender in
connection therewith (including, without limitation, the reasonable
fees of attorneys, architects, engineers, planners, appraisers and
other professionals reasonably retained by Lessor, the Agent or any
Lender in connection with any such action),
(b) the requesting Lessee shall have delivered to Lessor
and Agent a certificate of a Responsible Officer of such Lessee stating
that
(i) such action will not cause any Leased
Property, the Land or any Building or any portion thereof to
fail to comply in any material respect with the provisions of
this Lease or any other Operative Documents or any applicable
IDB Documentation, or in any material respect with Applicable
Law; and
(ii) such action will not materially reduce the
Fair Market Sales Value, utility or useful life of any Leased
Property, the Land or any Building nor Lessor's interest
therein; and
(c) in the case of any release or conveyance, if Lessor,
the Agent or any Lender so reasonably requests, the requesting Lessee
will cause to be issued and delivered to Lessor and the Agent by the
Title Insurance Company an endorsement to the
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Title Policy pursuant to which the Title Insurance Company
agrees that its liability for the payment of any loss or
damage under the terms and provisions of the Title Policy will
not be affected by reason of the fact that a portion of the
real property referred to in Schedule A of the Title Policy
has been released or conveyed by Lessor.
ARTICLE VI
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section 6.1 Maintenance and Repair; Compliance With Law. Each Lessee,
at its own expense, shall at all times (a) maintain each Leased Property leased
by it in good repair and condition (subject to ordinary wear and tear), in
accordance with prudent industry standards and, in any event, in no less a
manner as other similar property owned or leased by such Lessee or its
Affiliates, (b) make all Alterations in accordance with, and maintain (whether
or not such maintenance requires structural modifications or Alterations) and
operate and otherwise keep each Leased Property in compliance in all material
respects with, all Applicable Laws and insurance requirements, and (c) make all
material repairs, replacements and renewals of each Leased Property or any part
thereof which may be required to keep such Leased Property in the condition
required by the preceding clauses (a) and (b), provided that the foregoing
obligations shall only apply to each Leased Property after the Completion Date
with respect to such Leased Property. Each Lessee shall perform the foregoing
maintenance obligations regardless of whether any Leased Property is occupied or
unoccupied. Each Lessee waives any right that it may now have or hereafter
acquire to (i) require Lessor, the Agent or any Lender to maintain, repair,
replace, alter, remove or rebuild all or any part of any Leased Property or (ii)
make repairs at the expense of Lessor, the Agent or any Lender pursuant to any
Applicable Law or other agreements or otherwise. NEITHER LESSOR, THE AGENT NOR
ANY LENDER SHALL BE PERSONALLY LIABLE TO ANY LESSEE OR TO ANY CONTRACTORS,
SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES
PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED PROPERTY OR
ANY PART THEREOF. Neither Lessor, the Agent nor any Lender shall be required to
maintain, alter, repair, rebuild or replace any Leased Property in any way.
Section 6.2 Alterations. Each Lessee may, with the prior written
consent of Lessor (which consent shall not be unreasonably withheld), at such
Lessee's own cost and expense, make Alterations which do not diminish the value,
utility or useful life of any Leased Property, provided, that Lessor hereby
consents to, and the Funding Parties will fund the cost of, the Approved
Alterations, subject to the terms and conditions set forth in the Master
Agreement.
Section 6.3 Title to Alterations. Title to all Alterations shall
without further act vest in Lessor (subject to each Lessee's right to remove
trade fixtures, personal property and equipment which do not constitute
Alterations and which were not acquired with funds advanced by Lessor or any
Lender) and shall be deemed to constitute a part of the Leased Properties and be
subject to this Lease.
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ARTICLE VII
USE
Each Lessee may use each Leased Property leased by it or any part
thereof for any lawful purpose, and in a manner consistent with the standards
applicable to properties of a similar nature in the geographic area in which
such Leased Property is located, provided that such use does not materially
adversely affect the Fair Market Sales Value, utility, remaining useful life or
residual value of such Leased Property, and does not materially violate or
conflict with, or constitute or result in a material default under, any
Applicable Law or any insurance policy required hereunder. In the event that any
use of any of the Leased Property changes the character or original intended use
of such Leased Property, as such character and intended use existed on the
Closing Date therefor, or Completion Date therefor and the Lessees do not
purchase the Leased Properties at the end of the Lease Term, the related Lessee,
upon request of Lessor, shall restore such Leased Property to its general
character and intended use on the Closing Date or Completion Date therefor,
ordinary wear and tear excepted. No Lessee shall commit or permit any waste of
any Leased Property or any material part thereof.
ARTICLE VIII
INSURANCE
The provisions of this Article VIII shall not apply to any Construction
Land Interest during the Construction Term therefor; during the Construction
Term for any Leased Property, the Construction Agent shall maintain insurance in
accordance with Section 2.9 of the Construction Agency Agreement.
(a) At any time during which any part of any Building or
any Alteration is under construction and as to any part of any Building
or any Alteration under construction, the related Lessee shall
maintain, or cause to be maintained, at its sole cost and expense, as a
part of its blanket policies or otherwise, "all risks" non-reporting
completed value form of builder's risk insurance.
(b) During the Lease Term and with respect to each Leased
Property leased by it, each related Lessee shall maintain, at its sole
cost and expense, as a part of its blanket policies or otherwise,
insurance against loss or damage to any Building by fire and other
risks, including comprehensive boiler and machinery coverage, on terms
and in amounts no less favorable than insurance covering other similar
properties owned or leased by such Lessee or its Affiliates and which
is of the type usually carried by corporations engaged in the same or
similar business, similarly situated with the related Lessee, and
owning or operating similar property, and which cover risks of all kind
customarily insured against by such corporations, but in no event less
than the replacement cost of such Building from time to time. If at any
time during the Lease Term with respect to a Leased Property subject
hereto the area in which such Leased Property is located is designated
a "flood-prone" area pursuant to the Flood Disaster Protection Act of
1973, or any amendments or supplements thereto, then the related Lessee
shall comply with the National Flood Insurance Program as set forth in
the Flood Disaster Protection Act of 1973. In addition, the related
Lessee will fully comply with the requirements of the National Flood
Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as
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each may be amended from time to time, and with any other Applicable
Law, concerning flood insurance to the extent that it may apply to any
such Leased Property.
(c) During the Lease Term and with respect to each Leased
Property leased by it, each related Lessee shall maintain, at its sole
cost and expense, commercial general liability insurance which is of
the type usually carried by corporations engaged in the same or similar
business, similarly situated with the related Lessee, and owning or
operating similar property, and which cover risks of all kind
customarily insured against by such corporations. Such insurance shall
be on terms and in amounts that are no less favorable than insurance
maintained by such Lessee or its Affiliates with respect to similar
properties that it owns or leases, but in no event less than $1,000,000
per occurrence. Nothing in this Article VIII shall prohibit any
Additional Insured from carrying at its own expense other insurance on
or with respect to the Leased Properties, provided that any insurance
carried by such Additional Insured shall not prevent any Lessee from
carrying the insurance required hereby.
(d) Each policy of insurance required to be maintained by
a Lessee pursuant to paragraphs (a) and (b) of this Article VIII shall
provide that all insurance proceeds in respect of any loss or
occurrence shall be adjusted by such Lessee, except (a) that with
respect to any loss, the estimated cost of restoration of which is in
excess of the greater of $5,000,000 and 50% of the Funded Amounts with
respect to the related Leased Property, the adjustment thereof shall be
subject to the prior written approval of Lessor, which approval shall
not be unreasonably withheld, delayed or conditioned, and the insurance
proceeds therefor shall be paid to the Agent for application in
accordance with this Lease, and (b) if, and for so long as, an Event of
Default exists, all losses shall be adjusted solely by, and all
insurance proceeds shall be paid solely to, the Agent for application
pursuant to this Lease.
(e) On the Initial Closing Date and on each anniversary
of the Initial Closing Date, each Lessee shall furnish Lessor with
certificates, which may be blanket certificates covering all of the
Leased Properties leased by it, showing the insurance required under
this Article VIII to be in effect and naming the Additional Insureds,
as additional insureds (with respect to the insurance described in
paragraph (c)) or, in the case of the Agent with respect to the
circumstances described in paragraph (d), loss payee, as applicable.
(f) Each policy of insurance maintained by a Lessee
pursuant to this Article VIII shall (i) provide that such insurance
shall be primary, without right of contribution from any other
insurance that is covered by any Additional Insured, (ii) provide that
all of the provisions thereof, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering
each Additional Insured, (iii) provide that the related insurer waives
any right of set-off or counterclaim against each Additional Insured,
(iv) provide that no Additional Insured shall have any obligation or
liability for premiums, commissions, assessments or calls in connection
with such insurance, (v) contain the waiver of any right of subrogation
of the insurer against each Additional Insured, (vi) provide that in
respect of the interests of each Additional Insured, such policies
shall not be invalidated by any fraud, action, inaction or
misrepresentation of any Lessee or any other Person and shall insure
each Additional Insured regardless of any breach of any terms,
conditions or warranty contained in such policy by any Lessee or
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any other Person, to the extent that such endorsement is commercially
available in the standard commercial market, and (vii) provide that if
the related insurer cancels such insurance for any reason whatsoever,
or if the policy limits of any such insurance are reduced, or if any
Additional Insured is removed from the coverage of any such insurance,
such cancellation, reduction or removal shall not be effective as to
any Additional Insured until thirty (30) days after written notice is
given by such insurer to such Additional Insured.
(g) All insurance policies carried in accordance with
this Article VIII shall be maintained with insurers of recognized
responsibility rated at least A by A.M. Best & Company, and in all
cases the insurer shall be qualified to insure risks in the State where
each Leased Property is located.
ARTICLE IX
ASSIGNMENT AND SUBLEASING
No Lessee may assign any of its right, title or interest in, to or
under this Lease, except as set forth in the following sentence. Each Lessee may
sublease all or any portion of any Leased Property, provided that (a) all
obligations of such Lessee shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no sublease had been made;
and (b) such sublease shall be expressly subject and subordinate to this Lease,
the Loan Agreement and the other Operative Documents shall terminate on or
before the Lease Termination Date, except that if such sublease is on commercial
terms, provides for not less than fair market rent during its entire term (in
each case, taking into account the type of property and location of the related
Leased Property), which standard shall be confirmed by a third party appraisal
reasonably satisfactory to Lessor if requested by Lessor, and provides that
Lessor shall not be personally liable for any obligations under such sublease,
such sublease may extend beyond the Lease Termination Date and Lessor shall
execute a subordination and non-disturbance agreement in substantially the form
attached as Exhibit B with respect to such sublease if requested to do so by the
related Lessee. The related Lessee shall promptly reimburse Lessor for any and
all costs and expenses incurred by Lessor or the Agent with respect to any such
sublease. Each Lessee shall give the Agent and Lessor prompt written notice of
any such sublease and shall include a copy of such sublease with such notice.
Except pursuant to an Operative Document, this Lease shall not be
mortgaged or pledged by any Lessee, nor shall any Lessee mortgage or pledge any
interest in any Leased Property or any portion thereof. Any such mortgage or
pledge shall be void.
ARTICLE X
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
Section 10.1 Event of Loss. Any event (i) which would otherwise
constitute a Casualty during the Base Lease Term, and (ii) which, in the
good-faith judgment of the related Lessee, (A) renders repair and restoration of
a Leased Property impossible or impractical, or requires repairs to the related
Leased Property that, with the exercise of reasonable diligence, are impossible
to complete by the Lease Termination Date or (B) requires repairs to a Leased
Property that would cost in excess of 50% of the original cost of such Leased
Property, and as to which such Lessee has determined not to rebuild, shall
constitute an "Event of Loss". Within
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sixty (60) days after the occurrence of such event, the related Lessee shall
deliver to Lessor an Officer's Certificate notifying Lessor of such event and,
in the case of an event described in the foregoing clause (ii), of such Lessee's
determination not to rebuild. In the case of any other event which constitutes a
Casualty, the related Lessee shall restore such Leased Property pursuant to
Section 10.3. If an Event of Loss shall occur, the related Lessee shall pay to
Lessor on the earlier of (i) the Lease Termination Date and (ii) the next
Payment Date occurring not less than thirty (30) days after the delivery of the
Officer's Certificate pursuant to this Section 10.1 above an amount equal to the
related Leased Property Balance. Upon Lessor's receipt of such Leased Property
Balance on such date, Lessor shall cause Lessor's interest in such Leased
Property to be conveyed to the related Lessee in accordance with and subject to
the provisions of Section 14.5 hereof; upon completion of such purchase, but not
prior thereto, this Lease with respect to such Leased Property and all
obligations hereunder with respect to such Leased Property shall terminate,
except with respect to obligations and liabilities hereunder, actual or
contingent, that have arisen or relate to events occurring on or prior to such
date of purchase, or which are expressly stated herein to survive termination of
this Lease.
Upon the consummation of the purchase of any Leased Property pursuant
to this Section 10.1, any proceeds derived from insurance required to be
maintained by the related Lessee pursuant to this Lease for any Leased Property
remaining after payment of such purchase price shall be paid over to, or
retained by, such Lessee or as it may direct, and Lessor shall assign to such
Lessee, without warranty, all of Lessor's rights to and interest in such
insurance required to be maintained by such Lessee pursuant to this Lease.
Section 10.2 Event of Taking. Any event (i) which constitutes a
Condemnation of all of, or substantially all of, a Leased Property, or (ii) (A)
which would otherwise constitute a Condemnation and (B) which, in the good-faith
judgment of the related Lessee, (1) renders restoration and rebuilding of a
Leased Property impossible or impractical, or requires restoration to the
related Leased Property that, with the exercise of reasonable diligence, is
impossible to complete by the Lease Termination Date or (2) requires repairs to
a Leased Property that would cost in excess of 50% of the original cost of such
Leased Property, and as to which such Lessee has determined not to rebuild shall
constitute an "Event of Taking". Within sixty (60) days after the occurrence of
such event, the related Lessee shall deliver to Lessor an Officer's Certificate
notifying Lessor of such event and, in the case of an event described in the
foregoing clause (ii), of such Lessee's determination not to rebuild. In the
case of any other event which constitutes a Condemnation, the related Lessee
shall restore and rebuild such Leased Property pursuant to Section 10.4. If an
Event of Taking shall occur, the related Lessee shall pay to Lessor (1) on the
earlier of (A) the Lease Termination Date and (B) the next Payment Date
occurring not less than thirty (30) days after the occurrence of such Event of
Taking, in the case of an Event of Taking described in clause (i) above, or (2)
on the earlier of (A) the Lease Termination Date and (B) the next Payment Date
occurring not less than thirty (30) days after the delivery of the Officer's
Certificate pursuant to clause (ii) above, in the case of an Event of Taking
described in clause (ii) above, an amount equal to the related Leased Property
Balance. Upon Lessor's receipt of such Leased Property Balance on such date,
Lessor shall cause Lessor's interest in such Leased Property, and in all
condemnation proceeds related thereto, to be conveyed to the related Lessee in
accordance with and subject to the provisions of Section 14.5 hereof (provided
that such conveyance shall be subject to all rights of the condemning
authority); upon completion of such purchase, but not prior thereto, this Lease
with respect to such Leased Property and all obligations hereunder with respect
to such Leased Property shall terminate, except with respect
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to obligations and liabilities hereunder, actual or contingent, that have arisen
or relate to events occurring on or prior to such date of purchase, or which are
expressly stated herein to survive termination of this Lease.
Upon the consummation of the purchase of such Leased Property pursuant
to this Section 10.2, all Awards received by Lessor, after deducting any
reasonable out-of-pocket costs incurred by Lessor in collecting such Awards,
received or payable on account of an Event of Taking with respect to such Leased
Property during the related Lease Term shall be promptly paid to the related
Lessee, and all rights of Lessor in Awards not then received shall be assigned
to Lessee by Lessor.
Section 10.3 Casualty. If a Casualty shall occur which is not an Event
of Loss, the related Lessee shall rebuild and restore the affected Leased
Property, will complete the same prior to the Lease Termination Date, and will
cause the condition set forth in Section 3.5 (c) of the Master Agreement to be
fulfilled with respect to such restoration and rebuilding prior to the Lease
Termination Date, regardless of whether insurance proceeds received as a result
of such Casualty are sufficient for such purpose.
Section 10.4 Condemnation. If a Condemnation shall occur which is not
an Event of Taking, the related Lessee shall rebuild and restore the affected
Leased Property, will complete the same prior to the Lease Termination Date, and
will cause the condition set forth in Section 3.5 (c) of the Master Agreement to
be fulfilled with respect to such restoration and rebuilding prior to the Lease
Termination Date regardless of whether the Awards received as a result of such
Condemnation are sufficient for such purpose.
Section 10.5 Verification of Restoration and Rebuilding. In the event
of Casualty or Condemnation that involves, or is reasonably expected to involve,
repair or rebuilding costs in excess of $1,000,000, to verify the related
Lessee's compliance with the foregoing Section 10.3 or 10.4, as appropriate,
Lessor, the Agent, the Lenders and their respective authorized representatives
may, upon five (5) Business Days' notice to such Lessee, make a reasonable
number of inspections of the affected Leased Property with respect to (i) the
extent of the Casualty or Condemnation and (ii) the restoration and rebuilding
of the related Building and the Land. All actual and reasonable out-of-pocket
costs of such inspections incurred by Lessor, the Agent or any Lender will be
paid by the related Lessee promptly after written request. No such inspection
shall unreasonably interfere with the related Lessee's operations or the
operations of any other occupant of such Leased Property. None of the inspecting
parties shall have any duty to make any such inspection or inquiry and none of
the inspecting parties shall incur any liability or obligation by reason of
making or not making any such inspection or inquiry.
Section 10.6 Application of Payments. All proceeds (except for payments
under insurance policies maintained other than pursuant to Article VIII of this
Lease) received at any time by Lessor, any Lessee or the Agent from any insurer,
Governmental Authority or other Person with respect to any Condemnation or
Casualty to any Leased Property or any part thereof or with respect to an Event
of Loss or an Event of Taking, plus the amount of any payment that would have
been due from an insurer but for a Lessee's self-insurance or deductibles ("Loss
Proceeds"), shall (except to the extent Section 10.9 applies) be applied as
follows:
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(a) In the event the related Lessee purchases such Leased
Property pursuant to Section 10.1 or Section 10.2, such Loss Proceeds
shall be applied as set forth in Section 10.1 or Section 10.2, as the
case may be;
(b) In the event of a Casualty at such time when no Event
of Default has occurred and is continuing and the related Lessee is
obligated to repair and rebuild such Leased Property pursuant to
Section 10.3, such Lessee may, in good faith and subsequent to the date
of such Casualty, certify to Lessor and to the applicable insurer that
no Event of Default has occurred and is continuing, in which event the
applicable insurer shall pay the Loss Proceeds to such Lessee;
(c) In the event of a Condemnation at such time when no
Event of Default has occurred and is continuing and the related Lessee
is obligated to repair and rebuild such Leased Property pursuant to
Section 10.4, such Lessee may, in good faith and subsequent to the date
of such Condemnation, certify to Lessor and the Agent that no Event of
Default has occurred and is continuing, in which event the applicable
Award shall be paid over to such Lessee; and
(d) As provided in Section 10.8, if such section is
applicable.
During any period of repair or rebuilding pursuant to this Article X,
this Lease will remain in full force and effect and Basic Rent shall continue to
accrue and be payable without abatement or reduction. Each Lessee shall maintain
records setting forth information relating to the receipt and application of
payments in accordance with this Section 10.6. Such records shall be kept on
file by each Lessee at its offices and shall be made available to Lessor, the
Lenders and the Agent upon request.
Section 10.7 Prosecution of Awards. (a) If any Condemnation shall
occur, the party receiving the notice of such Condemnation shall give to the
other party and the Agent promptly, but in any event within thirty (30) days
after the occurrence thereof, written notice of such occurrence and the date
thereof, generally describing the nature and extent of such Condemnation. With
respect to any Event of Taking or any Condemnation, the related Lessee shall
control the negotiations with the relevant Governmental Authority as to any
proceeding in respect of which Awards are required, under Section 10.6, to be
assigned or released to such Lessee, unless an Event of Default shall have
occurred and be continuing, in which case (i) the Agent (or Lessor if the Loans
have been fully paid) shall control such negotiations; and (ii) such Lessee
hereby irrevocably assigns, transfers and sets over to Lessor all rights of such
Lessee to any Award on account of any Event of Taking or any Condemnation and,
if there will not be separate Awards to Lessor and such Lessee on account of
such Event of Taking or Condemnation, irrevocably authorizes and empowers the
Agent (or Lessor if the Loans have been fully paid) during the continuance of an
Event of Default, with full power of substitution, in the name of such Lessee or
otherwise (but without limiting the obligations of such Lessee under this
Article X), to file and prosecute what would otherwise be such Lessee's claim
for any such Award and to collect, receipt for and retain the same. In any event
Lessor and the Agent may participate in such negotiations, and no settlement
will be made without the prior consent of the Agent (or Lessor if the Loans have
been fully paid), not to be unreasonably withheld.
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(b) Notwithstanding the foregoing, each Lessee may prosecute, and
Lessor shall have no interest in, any claim with respect to such Lessee's
personal property and equipment not financed by or otherwise property of Lessor,
business interruption or similar award and such Lessee's relocation expenses.
Section 10.8 Application of Certain Payments Not Relating to an Event
of Taking. In case of a requisition for temporary use of all or a portion of any
Leased Property which is not an Event of Taking, this Lease shall remain in full
force and effect with respect to such Leased Property, without any abatement or
reduction of Basic Rent, and the Awards for such Leased Property shall, unless
an Event of Default has occurred and is continuing, be paid to the related
Lessee.
Section 10.9 Other Dispositions. Notwithstanding the foregoing
provisions of this Article X, so long as an Event of Default shall have occurred
and be continuing, any amount that would otherwise be payable to or for the
account of, or that would otherwise be retained by, Lessee pursuant to this
Article X shall be paid to the Agent (or Lessor if the Loans have been fully
paid) as security for the obligations of the Lessees under this Lease and, at
such time thereafter as no Event of Default shall be continuing, such amount
shall be paid promptly to the related Lessee to the extent not previously
applied by Lessor or the Agent in accordance with the terms of this Lease or the
other Operative Documents.
Section 10.10 No Rent Abatement. Rent shall not xxxxx hereunder by
reason of any Casualty, any Event of Loss, any Event of Taking or any
Condemnation of any Leased Property, and each Lessee shall continue to perform
and fulfill all of such Lessee's obligations, covenants and agreements hereunder
notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation
until the Lease Termination Date.
Section 10.11 Construction Land Interests. Notwithstanding anything to
the contrary set forth in this Article X, the provisions of the Construction
Agency Agreement shall control with respect to any Casualty, Event of Loss,
Condemnation or Event of Taking with respect to a Construction Land Interest
during the Construction Term therefor.
ARTICLE XI
INTEREST CONVEYED TO LESSEES
Each Lessee and Lessor intend that this Lease be treated, for
accounting purposes, as an operating lease. For purposes of federal and state
income taxes, and commercial and bankruptcy law, each Lessee and Lessor intend
that the transaction represented by this Lease be treated as a financing
transaction; for such purposes, it is the intention of the parties hereto (i)
that this Lease be treated as a mortgage or deed of trust (whichever is
applicable in the jurisdictions in which the Leased Properties are located) and
security agreement, encumbering the Leased Properties, and that each Lessee, as
grantor, hereby grants to Lessor, as mortgagee or beneficiary and secured party,
or any successor thereto, a first and paramount Lien on each Leased Property in
which such Lessee has an interest, except for Permitted Liens of the type
described in clause (a) of the definition thereof, and subject to the interests
of any Ground Lessor (if applicable), (ii) that Lessor shall have, as a result
of such determination, all of the rights, powers and remedies of a mortgagee,
deed of trust beneficiary or secured party available under Applicable Law to
take possession of and sell (whether by foreclosure or otherwise) any Leased
Property, (iii) that the
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effective date of such mortgage, security deed or deed of trust shall be the
effective date of this Lease, or the related Lease Supplement, if later, (iv)
that the recording of this Lease or a Lease Supplement shall be deemed to be the
recording of such mortgage, security deed or deed of trust, (v) that the
obligations secured by such mortgage, security deed or deed of trust shall
include the Funded Amounts and all Basic Rent and Supplemental Rent hereunder
and all other obligations of and amounts due from each Lessee hereunder and
under the Operative Documents and (vi) that the related Lessee will be treated
as the owner of the Leased Properties leased by such Lessee for tax purposes.
ARTICLE XII
EVENTS OF DEFAULT
The following events shall constitute Events of Default (whether any
such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) any Lessee shall fail to make any payment of Basic
Rent within five (5) days after the date that such Basic Rent is due;
(b) any Lessee shall fail to make any payment of Rent
(other than Basic Rent and other than as set forth in clause (c)) or
any other amount payable hereunder or under any of the other Operative
Documents (other than Basic Rent and other than as set forth in clause
(c)), and such failure shall continue for a period of ten days after
written notice thereof from Lessor or the Agent to ChoicePoint;
(c) any Lessee shall fail to pay the Funded Amount or
Lease Balance when due pursuant to Section 10.1, 10.2, 14.1 or 14.2, or
any Lessee shall fail to pay the Recourse Deficiency Amount when
required pursuant to Article XIV or the Construction Agent shall fail
to make any payment when due under the Construction Agency Agreement;
(d) any Lessee shall fail to maintain insurance as
required by Article VIII hereof, and such failure shall continue until
the earlier of (i) fifteen (15) days after written notice thereof from
Lessor and (ii) the day immediately preceding the date on which any
applicable insurance coverage would otherwise finally lapse or
terminate;
(e) any Consolidated Company or any Receivables
Subsidiary shall fail to observe or perform within any applicable grace
period any covenants or agreements contained in any instrument or
agreement relating to any of its Indebtedness exceeding $5,000,000 in
the aggregate, or any other event shall occur if the effect of such
failure or other event is to accelerate, or permit the holder of such
Indebtedness or any other Person to accelerate, the maturity of such
Indebtedness; or any such indebtedness shall be required to be prepaid
(other than by a regularly scheduled required prepayment) in whole or
in part prior to its stated maturity; or any Consolidated Company shall
fail to make when due (whether at stated maturity, by acceleration, on
demand or otherwise, and after giving effect to any applicable grace
period) any payment of principal of or interest on any Indebtedness
exceeding $5,000,000 in the aggregate;
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(f) ChoicePoint or any Lessee shall (i) apply for or
consent to the appointment of a receiver, trustee or liquidator of
itself or of a substantial part of its property, (ii) be unable, or
admit in writing inability, to pay its debts as they mature, (iii) make
a general assignment for the benefit of creditors, (iv) be adjudicated
a bankrupt or insolvent, (v) file a voluntary petition in bankruptcy,
or a petition or answer seeking reorganization or an arrangement with
creditors to take advantage of any insolvency law or an answer
admitting the material allegations of a bankruptcy, reorganization or
insolvency petition filed against it, (vi) take corporate action for
the purpose of effecting any of the foregoing, or (vii) have an order
for relief entered against it in any proceeding under any bankruptcy
law;
(g) an order, judgment or decree shall be entered,
without the application, approval or consent of ChoicePoint or any
Lessee, by any court of competent jurisdiction, approving a petition
seeking reorganization of such entity or appointing a receiver, trustee
or liquidator of such entity or of all or a substantial part of its
assets, and such order, judgment or decree shall continue unstayed and
in effect for any period of 60 consecutive days;
(h) ChoicePoint shall fail to observe or perform any
covenant or agreement (i) contained in Section 5.2(g) of the Master
Agreement and, if capable of being remedied, such failure shall remain
unremedied for fifteen (15) days after the earlier of (A) an Executive
Officer's obtaining knowledge thereof, or (B) written notice thereof
shall have been given to the Lessee by the Agent or any Funding Party,
(ii) contained in Section 5.2(e) and if capable of being remedied, such
failure shall remain unremedied for ten (10) days after the earlier of
(A) an Executive Officer's obtaining knowledge thereof, or (B) written
notice thereof shall have been given to the Lessee by the Agent or any
Funding Party, or (iii) contained in Sections 2.2(d)(relating to use of
Fundings), 5.1(a), 5.1(e), 5.1(g)(v), 5.1(h) or 5.2(c) of the Master
Agreement;
(i) any Lessee shall fail to observe or perform any
covenant or agreement contained herein or in any other Operative
Document (other than those referred to in clauses (a) through (h) of
this Article XII) and, if capable of being remedied, such failure shall
remain unremedied for thirty (30) days after the earlier of (i) an
Executive Officer of such Lessee's obtaining knowledge thereof, or (ii)
written notice thereof shall have been given to ChoicePoint by the
Agent or any Funding Party;
(j) a judgment or order for the payment of money in
excess of $5,000,000 not covered by insurance or otherwise having a
Material Adverse Effect shall be rendered against ChoicePoint or any
other Consolidated Company and such judgment or order shall continue
unsatisfied and in effect for a period of 60 days during which
execution shall not be effectively stayed or deferred (whether by
action of a court, by agreement or otherwise);
(k) an attachment or similar action shall be made on or
taken against any of the assets of any Consolidated Company with an
aggregate value (based upon the greater of the book value of such
assets as established in accordance with GAAP or the fair market value
of such assets as determined in good faith by such Consolidated
Company)
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exceeding $5,000,000 in aggregate and is not removed, suspended or
enjoined within 60 days of the same being made or any suspension or
injunction being lifted;
(l) any Lessee (other than ChoicePoint) shall become a
Subsidiary of any other Person (other than ChoicePoint or any
Subsidiary of ChoicePoint) or any "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) other than
employees of ChoicePoint (either directly or through a retirement or
employee benefit plan), shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of more than twenty-five percent (25%) of
the shares of the outstanding common stock of ChoicePoint entitled to
vote for members of ChoicePoint's board of directors, or any event or
condition shall occur or exist which, pursuant to the terms of any
Change in Control Provision, requires or permits the holder(s) of
Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be
accelerated in any respect;
(m) any Reportable Event shall have occurred, or any
finding or determination shall be made with respect to a Plan under
Section 4041 (c) or (e) of ERISA or any fact or circumstance shall
occur with respect to a Plan which, in the opinion of the Lessor,
provides for the commencement of any proceeding under Section 4042 of
ERISA, or any proceeding shall be commenced with respect to a Plan
under Section 4042 of ERISA;
(n) if any of the Operative Documents shall be cancelled,
terminated, revoked or rescinded by any Obligor, or any action at law,
suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Operative Documents shall be commenced by or on
behalf of any Obligor, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Operative Documents is illegal,
invalid or unenforceable in accordance with the terms thereof in any
material respect in connection with any proceeding instigated by any
Obligor, or conducted with respect to any Obligor's business or other
activities;
(o) any representation or warranty by ChoicePoint or any
Lessee in any Operative Document or in any certificate or document
delivered to Lessor, the Agent or any Funding Party pursuant to any
Operative Document shall have been incorrect in any material respect
when made; or
(p) the occurrence of any "Event of Default" as defined
in the Existing Lease.
ARTICLE XIII
ENFORCEMENT
Section 13.1 Remedies. Subject to the right of the Lessees to purchase
the Leased Properties as set forth in Section 13.3, upon the occurrence and
during the continuance of any Event of Default, Lessor may do one or more of the
following as Lessor in its sole discretion shall determine, without limiting any
other right or remedy Lessor may have on account of such Event of Default
(including, without limitation, the obligation of the Lessees to purchase the
Leased Properties as set forth in Section 14.3):
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(a) Lessor may, by notice to ChoicePoint, rescind or
terminate this Lease as of the date specified in such notice; however,
(A) no reletting, reentry or taking of possession of any Leased
Property by Lessor will be construed as an election on Lessor's part to
terminate this Lease unless a written notice of such intention is given
to ChoicePoint, (B) notwithstanding any reletting, reentry or taking of
possession, Lessor may at any time thereafter elect to terminate this
Lease for a continuing Event of Default, and (C) no act or thing done
by Lessor or any of its agents, representatives or employees and no
agreement accepting a surrender of any Leased Property shall be valid
unless the same be made in writing and executed by Lessor;
(b) Lessor may (i) demand that the Lessees, and the
Lessees shall upon the written demand of Lessor, return the Leased
Properties promptly to Lessor in the manner and condition required by,
and otherwise in accordance with all of the provisions of, Articles VI
and XIV hereof as if the Leased Properties were being returned at the
end of the Lease Term, and Lessor shall not be liable for the
reimbursement of any Lessee for any costs and expenses incurred by such
Lessee in connection therewith and (ii) without prejudice to any other
remedy which Lessor may have for possession of the Leased Properties,
and to the extent and in the manner permitted by Applicable Law, enter
upon any Leased Property and take immediate possession of (to the
exclusion of the related Lessee) any Leased Property or any part
thereof and expel or remove the related Lessee and any other person who
may be occupying such Leased Property, by summary proceedings or
otherwise, all without liability to any Lessee for or by reason of such
entry or taking of possession, whether for the restoration of damage to
property caused by such taking or otherwise and, in addition to
Lessor's other damages, the Lessees shall be responsible for the actual
and reasonable costs and expenses of reletting, including brokers' fees
and the reasonable out-of-pocket costs of any alterations or repairs
made by Lessor;
(c) Lessor may (i) sell all or any part of any Leased
Property at public or private sale, as Lessor may determine, free and
clear of any rights of any Lessee and without any duty to account to
any Lessee with respect to such action or inaction or any proceeds with
respect thereto (except to the extent required by Applicable Law or
clause (ii) below if Lessor shall elect to exercise its rights
thereunder) in which event the related Lessee's obligation to pay Basic
Rent for such Leased Property hereunder for periods commencing after
the date of such sale shall be terminated or proportionately reduced,
as the case may be; and (ii) if Lessor shall so elect, demand that the
Lessees pay to Lessor, and the Lessees shall pay to Lessor, on the date
of such sale, as liquidated damages for loss of a bargain and not as a
penalty (the parties agreeing that Lessor's actual damages would be
difficult to predict, but the aforementioned liquidated damages
represent a reasonable approximation of such amount) (in lieu of Basic
Rent due for periods commencing on or after the Payment Date coinciding
with such date of sale (or, if the sale date is not a Payment Date, the
Payment Date next preceding the date of such sale)), an amount equal to
(a) the excess, if any, of (1) the sum of (A) all Rent due and unpaid
to and including such Payment Date and (B) the Lease Balance, computed
as of such date, over (2) the net proceeds of such sale (that is, after
deducting all out-of-pocket costs and expenses incurred by Lessor, the
Agent or any Lender incident to such conveyance (including, without
limitation, all costs, expenses, fees, premiums and taxes described in
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Section 14.5(b))); plus (b) interest at the Overdue Rate on the
foregoing amount from such Payment Date until the date of payment;
(d) Lessor may, at its option, not terminate this Lease,
and continue to collect all Basic Rent, Supplemental Rent, and all
other amounts (including, without limitation, the Funded Amount) due
Lessor (together with all costs of collection) and enforce the Lessees'
obligations under this Lease as and when the same become due, or are to
be performed, and at the option of Lessor, upon any abandonment of any
Leased Property by Lessee or re-entry of same by Lessor, Lessor may, in
its sole and absolute discretion, elect not to terminate this Lease
with respect thereto and may make such reasonable alterations and
necessary repairs in order to relet such Leased Property, and relet
such Leased Property or any part thereof for such term or terms (which
may be for a term extending beyond the term of this Lease) and at such
rental or rentals and upon such other terms and conditions as Lessor in
its reasonable discretion may deem advisable; and upon each such
reletting all rentals actually received by Lessor from such reletting
shall be applied to the Lessees' obligations hereunder in such order,
proportion and priority as Lessor may elect in Lessor's sole and
absolute discretion. If such rentals received from such reletting
during any Rent Period are less than the Rent to be paid during that
Rent Period by the Lessees hereunder, the Lessees shall pay any
deficiency, as reasonably calculated by Lessor, to Lessor on the
Payment Date for such Rent Period;
(e) Lessor may, whether or not Lessor shall have
exercised or shall thereafter at any time exercise any of its rights
under paragraph (b), (c) or (d) of this Article XIII, demand, by
written notice to ChoicePoint specifying a date (the "Final Rent
Payment Date") not earlier than 30 days after the date of such notice,
that Lessees purchase, on the Final Rent Payment Date, all of the
remaining Leased Properties in accordance with the provisions of
Sections 14.2, 14.4 and 14.5; provided, however, that (1) such purchase
shall occur on the date set forth in such notice, notwithstanding the
provision in Section 14.2 calling for such purchase to occur on the
Lease Termination Date; and (2) Lessor's obligations under Section
14.5(a) shall be limited to delivery of a special warranty deed and
quit claim xxxx of sale of such Leased Properties, without recourse or
warranty, but free and clear of Lessor Liens;
(f) Lessor may exercise any other right or remedy that
may be available to it under Applicable Law, or proceed by appropriate
court action (legal or equitable) to enforce the terms hereof or to
recover damages for the breach hereof. Separate suits may be brought to
collect any such damages for any Rent Period(s), and such suits shall
not in any manner prejudice Lessor's right to collect any such damages
for any subsequent Rent Period(s), or Lessor may defer any such suit
until after the expiration of the Lease Term, in which event such suit
shall be deemed not to have accrued until the expiration of the Lease
Term; or
(g) Lessor may retain and apply against Lessor's damages
all sums which Lessor would, absent such Event of Default, be required
to pay to, or turn over to, a Lessee pursuant to the terms of this
Lease.
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Section 13.2 Remedies Cumulative; No Waiver; Consents. To the extent
permitted by, and subject to the mandatory requirements of, Applicable Law, each
and every right, power and remedy herein specifically given to Lessor or
otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any right, power or remedy. No delay or omission by Lessor in the
exercise of any right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of any Lessee or to be an acquiescence therein. Lessor's
consent to any request made by any Lessee shall not be deemed to constitute or
preclude the necessity for obtaining Lessor's consent, in the future, to all
similar requests. No express or implied waiver by Lessor of any Event of Default
shall in any way be, or be construed to be, a waiver of any future or subsequent
Potential Event of Default or Event of Default. To the extent permitted by
Applicable Law, each Lessee hereby waives any rights now or hereafter conferred
by statute or otherwise that may require Lessor to sell, lease or otherwise use
any Leased Property or part thereof in mitigation of Lessor's damages upon the
occurrence of an Event of Default or that may otherwise limit or modify any of
Lessor's rights or remedies under this Article XIII.
Section 13.3 Purchase Upon an Event of Default. Upon the occurrence of
an Event of Default, until such time as Lessor commences soliciting bids for, or
entering into any agreement for, the sale or re-lease of the Leased Properties
(whichever is earlier), the Lessees may purchase all, but not less than all, of
the Leased Properties for the Lease Balance, including any amounts due pursuant
to Section 7.5 of the Master Agreement and any costs incurred by the Agent or
any Funding Party in connection with the preparation for the sale or re-lease of
the Leased Properties. Such purchase shall be made in accordance with Section
14.5, upon not less than ten (10) Business Days' written notice (which shall be
irrevocable) to Lessor, which notice shall set forth the date of purchase (which
shall be a date no later than 30 days from the date of such notice).
Section 13.4 Limitation on Liability. Notwithstanding the provisions of
Section 13.1, the Lessees' recourse liability to Lessor as a consequence of the
occurrence of a Limited Event of Default shall be limited to the payment by the
Lessees of the Recourse Deficiency Amount; provided, however if Lessor used
commercial reasonable standards in determining that such Limited Event of
Default occurred, then the Lessor shall be entitled to exercise any of the
remedies set forth in Section 13.1.
ARTICLE XIV
SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL
Section 14.1 Lessee's Option to Purchase. (a) Subject to the terms,
conditions and provisions set forth in this Article XIV, each Lessee shall have
the option (the "Purchase Option"), to be exercised as set forth below, to
purchase from Lessor, Lessor's interest in all of the Leased Properties;
provided that, except as set forth in paragraph (b) below, such option must be
exercised with respect to all, but not less than all, of the Leased Properties
under all of the Lease Supplements. Such option must be exercised by written
notice to Lessor not later than twelve months prior to the scheduled Lease
Termination Date which notice shall be irrevocable;
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such notice shall specify the date that such purchase shall take place, which
date shall be a date occurring not less than sixty (60) days after such notice
or the Lease Termination Date (whichever is earlier). If the Purchase Option is
exercised pursuant to the foregoing, then, subject to the provisions set forth
in this Article XIV, on the applicable purchase date or the Lease Termination
Date, as the case may be, Lessor shall convey to each Lessee, by special
warranty deed and xxxx of sale, without recourse or warranty (other than as to
the absence of Lessor Liens) and each Lessee shall purchase from Lessor,
Lessor's interest in the Leased Properties leased by such Lessee.
(b) Subject to the terms, conditions and provisions set forth in
this Article XIV, each Lessee shall have the option (the "Partial Purchase
Option"), to be exercised as set forth below, to purchase from Lessor's interest
in any Leased Property leased by such Lessee; provided that, after giving effect
to such purchase no less than two Leased Properties remain subject to this
Lease. Such option may be exercised by written notice to Lessor at any time
prior to the last twelve months of the term of this Lease, which notice shall be
irrevocable; such notice shall specify the Leased Property to be purchased and
the date that such purchase shall take place, which date shall be a date
occurring not less than sixty (60) days after such notice. If a Partial Purchase
Option is exercised pursuant to the foregoing, subject to the provisions set
forth in this Article XIV, on the applicable purchase date, Lessor shall convey
to the related Lessee, and such Lessee shall purchase from Lessor, Lessor's
interest in the Leased Property that is the subject of such Partial Purchase
Option pursuant to Section 14.5.
(c) The Lessees may purchase just the Equipment included in any
Leased Property for a purchase price equal to the portion of the related Leased
Property Balance allocable to such Equipment (based on the original purchase
price for such Equipment as a percentage of the total cost of acquisition and
construction of such Leased Property) by giving irrevocable notice of such
purchase to Lessor not later than twelve months prior to the scheduled Lease
Termination Date, provided that prior to the date of such purchase, such Lessee,
at such Lessee's sole cost and expense, has installed replacement equipment in
the related Leased Property with a value, utility and useful life at least as
high as the Equipment so purchased and delivered good and valid title to such
replacement equipment to Lessor, free and clear of all Liens, and has repaired
all damage caused by such removal and replacement, all to the reasonable
satisfaction of Lessor.
Section 14.2 Conveyance to Lessee. Unless (a) the Lessees shall have
properly exercised the Purchase Option and purchased the Leased Properties
pursuant to Section 14.1(a) or 14.1(b) hereof, or (b) the Lessees shall have
properly exercised the Remarketing Option and shall have fulfilled all of the
conditions of Section 14.6 hereof, then, subject to the terms, conditions and
provisions set forth in this Article XIV, each Lessee shall purchase from
Lessor, and Lessor shall convey to each Lessee, on the Lease Termination Date
all of Lessor's interest in the Leased Properties leased to such Lessee. Any
Lessee may designate, in a notice given to Lessor not less than ten (10)
Business Days prior to the closing of such purchase, or any purchase pursuant to
Section 14.1(a) or (b),(time being of the essence), the transferee to whom the
conveyance shall be made (if other than to such Lessee), in which case such
conveyance shall (subject to the terms and conditions set forth herein) be made
to such designee; provided, however, that such designation of a transferee shall
not cause any Lessee to be released, fully or partially, from any of its
obligations under this Lease.
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Section 14.3 Acceleration of Purchase Obligation. The Lessees shall be
obligated to purchase Lessor's interest in the Leased Properties immediately,
automatically and without notice upon the occurrence of any Event of Default
specified in clause (f) or (g) of Article XII, for the purchase price set forth
in Section 14.4. Upon the occurrence and during the continuance of any other
Event of Default, the Lessees shall be obligated to purchase Lessor's interest
in the Leased Properties for the purchase price set forth in Section 14.4 upon
notice of such obligation from Lessor.
Section 14.4 Determination of Purchase Price. Upon the purchase by the
Lessees of Lessor's interest in the Leased Properties upon the exercise of the
Purchase Option or pursuant to Section 14.2 or 14.3, the aggregate purchase
price for all of the Leased Properties shall be an amount equal to the Lease
Balance as of the closing date for such purchase, including any amount due
pursuant to Section 7.5(f) of the Master Agreement as a result of such purchase.
Upon the purchase by a Lessee of Lessor's interest in a Leased Property upon the
exercise of a Partial Purchase Option, the purchase price for such Leased
Property shall be an amount equal to the Leased Property Balance for such Leased
Property as of the closing date for such purchase, including any amount due
pursuant to Section 7.5(f) of the Master Agreement as the result of such
purchase.
Section 14.5 Purchase Procedure. (a) If a Lessee shall purchase
Lessor's interest in a Leased Property or in Equipment pursuant to any provision
of this Lease, (i) such Lessee shall accept from Lessor and Lessor shall convey
such Leased Property or Equipment, as the case may be, by a duly executed and
acknowledged special warranty deed and quit claim xxxx of sale of such Leased
Property or Equipment, as the case may be, in recordable form, (ii) upon the
date fixed for any purchase of Lessor's interest in Leased Property hereunder,
the related Lessee(s) shall pay to the order of the Agent (or Lessor if the
Loans have been paid in full) the Lease Balance or Leased Property Balance, as
applicable, including any amount due pursuant to Section 7.5 of the Master
Agreement as a result of such purchase, by wire transfer of immediately
available funds, (iii) Lessor will execute and deliver to the related Lessee
such other documents, including releases, affidavits, termination agreements and
termination statements, as may be legally required or as may be reasonably
requested by such Lessee in order to effect such conveyance, free and clear of
Lessor Liens and the Liens of the Operative Documents and (iv) if such Leased
Property is subject to a Ground Lease, Lessor will execute and deliver to the
related Lessee an assignment or termination of such Ground Lease, as directed by
such Lessee, in such form as may be reasonably requested by such Lessee, and
such Lessee shall pay any amounts due with respect thereto under such Ground
Lease.
(b) Each Lessee shall, at such Lessee's sole cost and expense,
obtain all required governmental and regulatory approval and consents and in
connection therewith shall make such filings as required by Applicable Law; in
the event that Lessor is required by Applicable Law to take any action in
connection with such purchase and sale, the Lessees shall pay prior to transfer
all reasonable out-of-pocket costs incurred by Lessor in connection therewith.
Without limiting the foregoing, all costs incident to such conveyance,
including, without limitation, each Lessee's attorneys' fees, Lessor's
attorneys' fees, commissions, each Lessee's and Lessor's escrow fees, recording
fees, title insurance premiums and all applicable documentary transfer or other
transfer taxes and other taxes required to be paid in order to record the
transfer documents that might be imposed by reason of such conveyance and the
delivery of such deed shall be borne entirely by and paid by the Lessees.
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(c) Upon expiration or termination of this Lease resulting in
conveyance of Lessor's interest in the title to the Leased Properties to the
Lessees, there shall be no apportionment of rents (including, without
limitation, water rents and sewer rents), taxes, insurance, utility charges or
other charges payable with respect to the Leased Properties, all of such rents,
taxes, insurance, utility or other charges due and payable with respect to the
Leased Properties prior to termination being payable by the Lessees hereunder
and all due after such time being payable by the Lessees as the then owners of
the Leased Properties.
Section 14.6 Option to Remarket. Subject to the fulfillment of each of
the conditions set forth in this Section 14.6, the Lessees shall have the option
to market all of, but not less than all of, the Leased Properties for Lessor
(the "Remarketing Option").
The Lessees' effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions, the failure of any of which, unless waived in writing by
Lessor and the Lenders, shall render the Remarketing Option and the Lessees'
exercise thereof null and void, in which event, each Lessee shall be obligated
to perform its obligations under Section 14.2.
(a) Not later than twelve months prior to the scheduled
Lease Termination Date, ChoicePoint shall give to Lessor and the Agent
written notice of the Lessees' exercise of the Remarketing Option.
(b) Not later than ten (10) Business Days prior to the
Lease Termination Date, each Lessee shall deliver to Lessor and the
Agent an environmental assessment of each Leased Property leased by it
dated not earlier than forty-five (45) days prior to the Lease
Termination Date. Such environmental assessment shall be prepared by an
environmental consultant selected by the related Lessee and reasonably
satisfactory to the Required Funding Parties, shall be in form, detail
and substance reasonably satisfactory to the Required Funding Parties,
and shall otherwise indicate no degradation in environmental conditions
beyond those described in the related Environmental Audit and shall not
include a recommendation for further investigation to make such
determination.
(c) On the date of ChoicePoint's notice to Lessor and the
Agent of the Lessees' exercise of the Remarketing Option, each of the
Construction Conditions shall have been timely satisfied.
(d) Except during the Construction Term for the related
Leased Property, each Lessee shall have completed all Alterations,
restoration and rebuilding of the Leased Properties leased by it
pursuant to Sections 6.1, 6.2, 10.3 and 10.4 (as the case may be) and
shall have fulfilled in all material respects all of the conditions and
requirements in connection therewith pursuant to said Sections, in each
case by the date on which Lessor and the Agent receive ChoicePoint's
notice of the Lessees' exercise of the Remarketing Option (time being
of the essence), regardless of whether the same shall be within such
Lessee's control.
(e) Upon request by the Agent, each Lessee shall promptly
provide any maintenance records relating to each Leased Property leased
by it to Lessor, the Agent and any potential purchaser, and shall
otherwise do all things necessary to deliver
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possession of such Leased Property to the potential purchaser at the
appropriate closing date. Each Lessee shall allow Lessor, the Agent and
any potential purchaser reasonable access during normal business hours
to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall
surrender the Leased Properties leased by it in accordance with Section
14.8 hereof.
(g) In connection with any such sale of the Leased
Properties, each Lessee will provide to the purchaser all customary
"seller's" indemnities requested by the potential purchaser (taking
into account the location and nature of the Leased Properties),
representations and warranties regarding title, absence of Liens
(except Lessor Liens) and the condition of the Leased Properties. Each
Lessee shall fulfill all of the requirements set forth in clause (b) of
Section 14.5, and such requirements are incorporated herein by
reference, provided that all costs and expenses incurred in connection
therewith shall be paid from the proceeds of the sale. As to Lessor,
any such sale shall be made on an "as is, with all faults" basis
without representation or warranty by Lessor, other than the absence of
Lessor Liens.
(h) The Lessees, jointly and severally, shall pay to the
Agent on the Lease Termination Date (or to such other Person as Agent
shall notify Lessee in writing, or in the case of Supplemental Rent, to
the Person entitled thereto) an amount equal to the Recourse Deficiency
Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent,
and all other amounts hereunder which have accrued prior to or as of
such date, in the type of funds specified in Section 3.3 hereof.
If the Lessees have exercised the Remarketing Option, the following additional
provisions shall apply: During the period commencing on the date twelve months
prior to the scheduled expiration of the Lease Term, one or more of the Lessees
shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to
sell Lessor's interest in the Leased Properties and will attempt to obtain the
highest purchase price therefor. No Lessee shall incur any remarketing costs
that exceed, or are expected to exceed, $50,000 without the prior written
consent of Lessor. Lessee promptly shall submit all bids to Lessor and the Agent
and Lessor; the Agent will have the right to review the same; and the Agent and
Lessor will have the right to submit any one or more bids. All bids shall be on
an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary
or Affiliate of a Lessee. The written offer must specify the Lease Termination
Date as the closing date. If, and only if, the aggregate Net Selling Price is
less than the difference between the Lease Balance at such time minus the
Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and
absolute discretion, by notice to ChoicePoint, given within 30 days of receipt
of such offer, reject such offer to purchase, in which event the parties will
proceed according to the provisions of Section 14.7 hereof. If neither Lessor
nor the Agent rejects such purchase offer as provided above, the closing of such
purchase of the Leased Properties by such purchaser shall occur on the Lease
Termination Date, contemporaneously with the Lessees' surrender of the Leased
Properties in accordance with Section 14.8 hereof, and the Net Selling Price
shall be paid directly to the Agent (or Lessor if the Funded Amounts have been
fully paid); provided, however, that if the sum of the Net Selling Price from
such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease
Termination Date pursuant to Section 14.6(h), exceeds the Lease Balance as of
such date, then the excess shall be paid to
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ChoicePoint on the Lease Termination Date. No Lessee shall have the right, power
or authority to bind Lessor in connection with any proposed sale of the Leased
Properties.
Section 14.7 Rejection of Sale. Notwithstanding anything contained
herein to the contrary, if Lessor or the Agent rejects the purchase offer for
the Leased Properties as provided in (and subject to the conditions set forth
in) Section 14.6, then (a) the Lessees, jointly and severally, shall pay to the
Agent the Recourse Deficiency Amount on the Lease Termination Date pursuant to
Section 14.6(h), and (b) Lessor shall retain title to the Leased Properties.
Section 14.8 Return of Leased Property. If Lessor retains title to any
Leased Property pursuant to Section 14.7 hereof, then each Lessee shall, on the
Lease Termination Date, and at its own expense, return possession of the Leased
Properties leased by it to Lessor for retention by Lessor or, if the Lessees
properly exercise the Remarketing Option and fulfill all of the conditions of
Section 14.6 hereof and neither Lessor nor the Agent rejects such purchase offer
pursuant to Section 14.6, then each Lessee shall, on such Lease Termination
Date, and at its own cost, transfer possession of the Leased Properties leased
by it to the independent purchaser thereof, in each case by surrendering the
same into the possession of Lessor or such purchaser, as the case may be, free
and clear of all Liens other than Lessor Liens, in as good condition as it was
on the Completion Date therefor in the case of new Construction, or the Closing
Date (as modified by Alterations permitted by this Lease), ordinary wear and
tear excepted, and in compliance in all material respects with Applicable Law.
Each Lessee shall, on and within a reasonable time before and after the Lease
Termination Date, cooperate with Lessor and the independent purchaser of any
Leased Property leased by such Lessee in order to facilitate the ownership and
operation by such purchaser of such Leased Property after the Lease Termination
Date, which cooperation shall include the following, all of which such Lessee
shall do on or before the Lease Termination Date or as soon thereafter as is
reasonably practicable: providing all books and records regarding the related
Lessee's maintenance of such Leased Property and all know-how, data and
technical information relating thereto, providing a copy of the Plans and
Specifications within the possession of such Lessee or ChoicePoint, granting or
assigning all licenses (to the extent assignable) necessary for the operation
and maintenance of such Leased Property, and cooperating in seeking and
obtaining all necessary Governmental Action. Each Lessee shall have also paid
the cost of all Alterations commenced prior to the Lease Termination Date. The
obligations of such Lessee under this Article XIV shall survive the expiration
or termination of this Lease.
Section 14.9 Renewal. Subject to the conditions set forth herein,
ChoicePoint may, by written notice to Lessor and the Agent given not later than
twelve months, prior to the then scheduled Lease Termination Date, request to
renew this Lease for up to five years, commencing on the date following such
Lease Termination Date, provided that in no event may the Lease Term exceed 16.5
years. No later than the date that is 90 days after the date the request to
renew has been delivered to each of Lessor and the Agent, the Agent will notify
ChoicePoint whether or not Lessor and the Lenders consent to such renewal
request (which consent may be granted or denied in the Lessor's and each
Lender's sole discretion and may be conditioned on such conditions precedent as
may be specified by Lessor or such Lender). If the Agent fails to respond in
such time frame, such failure shall be deemed to be a rejection of such request.
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ARTICLE XV
LESSEE'S EQUIPMENT
After any repossession of any Leased Property (whether or not this
Lease has been terminated), the related Lessee, at its expense and so long as
such removal of such trade fixture, personal property or equipment shall not
result in a violation of Applicable Law, shall, within a reasonable time after
such repossession or within ninety (90) days after such Lessee's receipt of
Lessor's written request (whichever shall first occur), remove all of such
Lessee's trade fixtures, personal property and equipment from such Leased
Property (to the extent that the same can be readily removed from such Leased
Property without causing material damage to such Leased Property); provided,
however, that such Lessee shall not remove any such trade fixtures, personal
property or equipment that has been financed by Lessor and/or the Lenders under
the Operative Documents or otherwise constituting Leased Property (or that
constitutes a replacement of such property). Any of a Lessee's trade fixtures,
personal property and equipment not so removed by such Lessee within such period
shall be considered abandoned by such Lessee, and title thereto shall without
further act vest in Lessor, and may be appropriated, sold, destroyed or
otherwise disposed of by Lessor without notice to any Lessee and without
obligation to account therefor and the related Lessee will pay Lessor, upon
written demand, all reasonable costs and expenses incurred by Lessor in
removing, storing or disposing of the same and all costs and expenses incurred
by Lessor to repair any damage to such Leased Property caused by such removal.
Each Lessee will immediately repair at its expense all damage to such Leased
Property caused by any such removal (unless such removal is effected by Lessor,
in which event such Lessee shall pay all reasonable costs and expenses incurred
by Lessor for such repairs). Lessor shall have no liability in exercising
Lessor's rights under this Article XV, nor shall Lessor be responsible for any
loss of or damage to any Lessee's personal property and equipment.
ARTICLE XVI
RIGHT TO PERFORM FOR LESSEE
If any Lessee shall fail to perform or comply with any of its
agreements contained herein and either such failure shall continue for a period
of 10 or more days after notice to ChoicePoint or to such Lessee by Lessor or
the Agent or such failure has resulted in immediate material danger to any
Leased Property or Lessor's or the Agent's interest therein, Lessor, upon
reasonable notice to ChoicePoint or such Lessee, may perform or comply with such
agreement, and Lessor shall not thereby be deemed to have waived any default
caused by such failure, and the amount of such payment and the amount of the
expenses of Lessor (including actual and reasonable attorneys' fees and
expenses) incurred in connection with such payment or the performance of or
compliance with such agreement, as the case may be, shall be deemed Supplemental
Rent, payable by the related Lessee to Lessor within thirty (30) days after
written demand therefor.
ARTICLE XVII
MISCELLANEOUS
Section 17.1 Reports. To the extent required under Applicable Law and
to the extent it is reasonably practical for a Lessee to do so, such Lessee
shall prepare and file in timely fashion, or, where such filing is required to
be made by Lessor or it is otherwise not reasonably practical for a Lessee to
make such filing, Lessee shall prepare and deliver to Lessor (with a copy to the
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Agent) within a reasonable time prior to the date for filing and Lessor shall
file, any material reports with respect to the condition or operation of such
Leased Property that shall be required to be filed with any Governmental
Authority.
Section 17.2 Binding Effect; Successors and Assigns; Survival. The
terms and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and the Lessees, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of Lessor,
any Person to whom Lessor may transfer any Leased Property or any interest
therein in accordance with the provisions of the Operative Documents), and inure
to the benefit of their respective permitted successors and assigns, and the
rights granted hereunder to the Agent and the Lenders shall inure (subject to
such conditions as are contained herein) to the benefit of their respective
permitted successors and assigns. Each Lessee hereby acknowledges that Lessor
has assigned all of its right, title and interest to, in and under this Lease to
the Agent and the Lenders pursuant to the Loan Agreement and related Operative
Documents, and that all of Lessor's rights hereunder may be exercised by the
Agent.
Section 17.3 Quiet Enjoyment. Lessor covenants that it will not
interfere in the related Lessee's or any of its permitted sublessees' quiet
enjoyment of the Leased Properties in accordance with this Lease during the
Lease Term, so long as no Event of Default has occurred and is continuing. Such
right of quiet enjoyment is independent of, and shall not affect, Lessor's
rights otherwise to initiate legal action to enforce the obligations of the
Lessees under this Lease.
Section 17.4 Documentary Conventions. The Documentary Conventions shall
apply to this Lease.
Section 17.5 Liability of Lessor Limited. Except as otherwise expressly
provided below in this Section 17.5, it is expressly understood and agreed by
and between each Lessee, Lessor and their respective successors and assigns that
nothing herein contained shall be construed as creating any liability of Lessor
or any of its Affiliates or any of their respective officers, directors,
employees, shareholders or agents, individually or personally, for any failure
to perform any covenant, either express or implied, contained herein, all such
liability (other than that resulting from Lessor's gross negligence or willful
misconduct, except to the extent imputed to Lessor by virtue of any Lessee's
action or failure to act), if any, being expressly waived by each Lessee and by
each and every Person now or hereafter claiming by, through or under any Lessee,
and that, so far as Lessor or any of its Affiliates or any of their respective
officers, directors, employees, shareholders or agents, individually or
personally, is concerned, each Lessee and any Person claiming by, through or
under any Lessee shall look solely to the right, title and interest of Lessor in
and to the Leased Properties and any proceeds from Lessor's sale or encumbrance
thereof (provided, however, that no Lessee shall be entitled to any double
recovery) for the performance of any obligation under this Lease and under the
Operative Documents and the satisfaction of any liability arising therefrom
(other than that resulting from Lessor's gross negligence or willful misconduct,
except to the extent imputed to Lessor by virtue of any Lessee's action or
failure to act).
Section 17.6 Estoppel Certificates. Each party hereto agrees that at
any time and from time to time during the Lease Term, it will promptly, but in
no event later than thirty (30) days after request by the other party hereto,
execute, acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchaser has signed a commitment or letter of
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intent to purchase any Leased Property or any part thereof or any Note),
assignee or mortgagee or third party designated by such other party, a
certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as
modified, and identifying the modification agreements); (b) the date to which
Basic Rent has been paid; (c) whether or not there is any existing default by
any Lessee in the payment of Basic Rent or any other sum of money hereunder, and
whether or not there is any other existing default by either party with respect
to which a notice of default has been served, and, if there is any such default,
specifying the nature and extent thereof; (d) whether or not, to the knowledge
of the signer, there are any setoffs, defenses or counterclaims against
enforcement of the obligations to be performed hereunder existing in favor of
the party executing such certificate and (e) other items that may be reasonably
requested; provided that no such certificate may be requested unless the
requesting party has a good faith reason for such request.
Section 17.7 No Joint Venture. Any intention to create a joint venture,
partnership or other fiduciary relationship between Lessor and any Lessee is
hereby expressly disclaimed.
Section 17.8 No Accord and Satisfaction. The acceptance by Lessor of
any sums from any Lessee (whether as Basic Rent or otherwise) in amounts which
are less than the amounts due and payable by the Lessees hereunder is not
intended, nor shall be construed, to constitute an accord and satisfaction of
any dispute between Lessor and any Lessee regarding sums due and payable by any
Lessee hereunder, unless Lessor specifically deems it as such in writing.
Section 17.9 No Merger. In no event shall the leasehold interests,
estates or rights of any Lessee hereunder, or of the holder of any Notes secured
by a security interest in this Lease, merge with any interests, estates or
rights of Lessor in or to the Leased Properties, it being understood that such
leasehold interests, estates and rights of each Lessee hereunder, and of the
holder of any Notes secured by a security interest in this Lease, shall be
deemed to be separate and distinct from Lessor's interests, estates and rights
in or to the Leased Properties, notwithstanding that any such interests, estates
or rights shall at any time or times be held by or vested in the same person,
corporation or other entity.
Section 17.10 Survival. The obligations of the parties to be performed
under this Lease prior to the Lease Termination Date and the obligations of the
parties pursuant to Articles III, X, XI, XIII, Sections 14.2, 14.3, 14.4, 14.5,
14.8, Articles XV, and XVI, and Section 17.5 shall survive the expiration or
termination of this Lease. The extension of any applicable statute of
limitations by Lessor, any Lessee, the Agent or any Indemnitee shall not affect
such survival.
Section 17.11 Chattel Paper. To the extent that this Lease constitutes
chattel paper (as such term is defined in the Uniform Commercial Code in any
applicable jurisdiction), no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the sole
original counterpart, which shall be identified as the original counterpart by
the receipt of the Agent.
Section 17.12 Time of Essence. Time is of the essence of this Lease.
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Section 17.13 Recordation of Lease. Each Lessee will, at its expense,
cause each Lease Supplement or a memorandum of lease in form and substance
reasonably satisfactory to Lessor and such Lessee (if permitted by Applicable
Law) to be recorded in the proper office or offices in the States and the
municipalities in which the Land is located.
Section 17.14 Investment of Security Funds. The parties hereto agree
that any amounts not payable to a Lessee pursuant to any provision of Article
VIII, X or XIV or this Section 17.14 shall be held by the Agent (or Lessor if
the Loans have been fully paid) as security for the obligations of the Lessees
under this Lease and the Master Agreement and of Lessor under the Loan
Agreement. At such time as such amounts are payable to the Lessee, such amounts,
net of any amounts previously applied to the Lessees' obligations hereunder or
under the Master Agreement (which application is hereby agreed to by Lessee),
shall be paid to the related Lessee. Any such amounts which are held by the
Agent (or Lessor if the Loans have been fully paid) pending payment to a Lessee
shall until paid to such Lessee, as provided hereunder or until applied against
the Lessees' obligations herein and under the Master Agreement and distributed
as provided in the Loan Agreement or herein (after the Loan Agreement is no
longer in effect) in connection with any exercise of remedies hereunder, be
invested by the Agent or Lessor, as the case may be, as directed from time to
time in writing by Lessee (provided, however, if an Event of Default has
occurred and is continuing it will be directed by the Agent or, if the Loans
have been fully paid, Lessor) and at the expense and risk of the Lessees, in
Permitted Investments. Any gain (including interest received) realized as the
result of any such investment (net of any fees, commissions and other expenses,
if any, incurred in connection with such investment) shall be applied in the
same manner as the principal invested. Lessee upon demand shall pay to the Agent
or Lessor, as appropriate, the amount of any loss incurred in connection with
all such investments and the liquidation thereof.
Section 17.15 Ground Leases. Each Lessee will, at its expense, timely
perform all of the obligations of Lessor, in its capacity as ground lessee,
under each Ground Lease and, if requested by Lessor shall provide satisfactory
evidence to Lessor of such performance.
Section 17.16 Land and Building. If any Building and the Land on which
such Building is located are subject to separate Lease Supplements, at any time
that the related Lessee exercises an option to purchase such Building or such
Land, or to renew this Lease with respect to such Building or such Land, or is
obligated to purchase such Building or such Land as a result of an Event of
Loss, an Event of Taking or an Event of Default, such purchase or renewal shall
be made simultaneously with respect to all of such Building and such Land.
Section 17.17 Joint and Several. Each obligation of each Lessee
hereunder shall be a joint and several obligation of all of the Lessees.
Section 17.18 IDB Documentation. If any Leased Property is subject to
an IDB Lease, this Lease shall be deemed to be a sublease. Each Lessee hereby
agrees to perform all of its obligations and all obligations of Lessor under all
IDB Documentation related to any Leased Property. In the event that a Lessee
purchases any Leased Property that is the subject of IDB Documentation, such
Lessee shall prepay, or cause to be prepaid, the Bonds related to such Leased
Property or shall assume all obligations of the Lessor related to such IDB
Documentation and cause the Lessor to be released therefrom pursuant to
documentation reasonably satisfactory to the Lessor. For such purpose, if
allowed by the relevant IDB Documentation, and if Lessor is
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the holder of the related Bonds, Lessor will at Lessee's request (i) surrender
such Bonds for cancellation in payment thereof and (ii) assign its interest in
the relevant IDB Lease to Lessee in lieu of obtaining and conveying legal title
to the subject Leased Property, in each case at the related Lessee's expense and
pursuant to documentation reasonably satisfactory to Lessor.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have each caused this Lease
Agreement to be duly executed and delivered and attested by their respective
officers thereunto duly authorized as of the day and year first above written.
Witnessed: CHOICEPOINT INC., as a Lessee
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Sr. Legal Assistant Title: Treasurer
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
SUNTRUST EQUITY FUNDING, LLC,
as Lessor
Witnessed:
By: /s/ Xxxxxxx Xxxxxx By: /s/ R. Xxxx Xxxxxxx
------------------------------------ ------------------------------
Name: Xxxxxxx Xxxxxx Name: R. Xxxx Xxxxxxx
Title: Senior Vice President
and Manager
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Amended And Restated
Master Lease Agreement
Recording requested by EXHIBIT A TO
and when recorded mail to: THE LEASE
_________________________________
_________________________________
_________________________________
_________________________________
LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE
THIS LEASE SUPPLEMENT NO. __ (this "Lease Supplement") dated as of
[ ], between SUNTRUST EQUITY FUNDING, LLC, a Delaware limited liability
company, as lessor (the "Lessor"), and [CHOICEPOINT INC., a Georgia
corporation,] as lessee (the "Related Lessee").
WHEREAS Lessor is the owner of the Land described on Schedule I hereto
and wishes to lease the Land together with any Building and other improvements
thereon or which thereafter may be constructed thereon pursuant to the Lease to
Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions; Interpretation. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Amended and Restated
Master Agreement, dated as of June 26, 2003 (as further amended and supplemented
from time to time, the "Master Agreement"), among ChoicePoint Inc., as
Guarantor, the Lessees named therein, Lessor, the financial institutions party
thereto, as Lenders and SunTrust Bank, as Agent; and the rules of interpretation
set forth in Appendix A to the Lease shall apply to this Lease Supplement.
SECTION 2. The Properties. Attached hereto as Schedule I is the
description of certain Land (the "Subject Property"). Effective upon the
execution and delivery of this Lease Supplement by Lessor and Lessee, such Land,
together with any Building and other improvements thereon or which thereafter
may be constructed thereon shall be subject to the terms and provisions of the
Lease and Lessor hereby grants, conveys, transfers and assigns to the Related
Lessee those interests, rights, titles, estates, powers and privileges provided
for in the Lease with respect to the Subject Property.
SECTION 3. Amendments to Lease with Respect to Subject Property.
Effective upon the execution and delivery of this Lease Supplement by Lessor and
the Related Lessee, the following terms and provisions shall apply to the Lease
with respect to the Subject Property:
A-1
[Insert Applicable Sections per Local Law
as contemplated by the Master Agreement]
SECTION 4. Recourse Deficiency Percentage. The Recourse Deficiency
Percentage with respect to the Subject Property is ___%.
SECTION 5. Ratification; Incorporation. Except as specifically modified
hereby, the terms and provisions of the Lease are hereby ratified and confirmed
and remain in full force and effect. The terms of the Lease (as amended by this
Lease Supplement) are by this reference incorporated herein and made a part
hereof.
SECTION 6. Original Lease Supplement. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 7. Documentary Conventions. The Documentary Conventions shall
apply to this Lease Supplement.
A-2
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
Witnessed: SUNTRUST EQUITY FUNDING, LLC,
as Lessor
By: ___________________________ By: ________________________________
Name:______________________ Name:
Title:
By: ___________________________
Name:______________________
Witnessed: [CHOICEPOINT INC.], as Related Lessee]
By: ___________________________ By: __________________________________
Name:______________________ Name:
Title:
By: ___________________________
Name:______________________
A-3
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ____ ____, this
_____ day of __________, _______________, by _____________________, as
____________________ of SunTrust Equity Funding, LLC, on behalf of such limited
liability company.
[Notarial Seal] ___________________________________
Notary Public
My commission expires: ______________
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ______________, ___ ____, this _____
day of __________, __________, by ___________, as _____________, of [ChoicePoint
Inc., a Georgia] corporation, on behalf of the corporation.
[Notarial Seal] ___________________________________
Notary Public
My commission expires: ______________
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as of the date hereof.
SUNTRUST BANK,
as the Agent
By: ____________________________________
Name:
Title:
