EXHIBIT 10.3
(Florida)
ASSIGNMENT AND ASSUMPTION OF LEASE
AND OTHER OPERATIVE DOCUMENTS
This Assignment and Assumption of Lease and other Operative Documents
(this "Assignment") is made and entered into as of this 25th day of June, 2001,
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by and among Equifax Inc., a Georgia corporation ("Assignor"), Certegy Inc., a
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Georgia corporation formerly known as Equifax PS, Inc. ("Assignee"), Prefco VI
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Limited Partnership, a Connecticut partnership (the "Lessor"), Atlantic
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Financial Group, Ltd., a Texas limited partnership ("AFG"), SunTrust Bank, a
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Georgia banking corporation, as Agent (the "Agent") and as Lender (the
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"Lender").
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RECITALS:
A. Assignor, the Lessor, AFG, the Lender and the Agent are parties to that
certain Master Agreement dated as of December 30, 1999 (as heretofore amended
from time to time, the "Master Agreement") relating to the lease of a property
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in Florida to Assignor by Lessor pursuant to the Lease Agreement dated as of
December 30, 1999 (as heretofore amended from time to time, the "Lease") between
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the Lessor and Assignor. Assignor provided its Guaranty dated as of December 30,
1999 (the "Operative Guaranty") in favor of the Lessor, the Agent and the Lease
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Participant. The Lender has provided funding to the Lessor in connection with
the Operative Documents pursuant to the Loan Agreement dated as of December 30,
1999 (as heretofore amended from time to time, the "Loan Agreement", and
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together with the Master Agreement, the Lease, the Operative Guaranty and
certain other documents are the Operative Documents as defined in the Master
Agreement) among the Lessor, the Agent and the Lease Participant. Capitalized
terms not otherwise defined herein are used herein as defined in the Master
Agreement.
B. The Lease relates to the Land described on Exhibit A hereto and any
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Building and other improvements thereon and including the Lessor's benefits and
rights under the Honeywell Lease (the "Leased Property"). The Lease was recorded
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on January 3, 2000 in the Pinellas County, Florida Off. Rec. Book 10772 Pages
1833 to 1910.
C. In connection with a special distribution (the "Spin-Off") by Assignor
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of all of the shares of Assignee declared June 11, 2001 with a record date of
June 27, 2001 and agreed distribution date of July 7, 2001, Assignor is directly
or indirectly transferring to Assignee all of Assignor's right, title and
interest in and to all of the material assets of Assignor's payment services
business (the "Property"), substantially as described in that certain
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registration statement on Form 10 filed by Assignee with the Securities and
Exchange Commission on April 3, 2001, as amended on May 18, 2001 and June 11,
2001 ("Form 10 Filing").
D. In connection with the aforesaid transfer of the Property, (i) Assignor
desires to assign to Assignee all of Assignor's right, title and interest as
Lessee in and to the Lease and the other Operative Documents, and (ii) Assignee
desires to accept such assignment and to assume, and agrees to perform, subject
to the terms and conditions hereof, all of Assignor's duties, obligations and
liabilities as Lessee under the Operative Documents.
NOW THEREFORE, for and in consideration of the mutual premises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor, Assignee, the Lessor,
the Agent and the Lease Participant hereby agree as follows:
1. Effective as of the "Effective Time", as defined in the Distribution
Agreement Plan of Reorganization and Distribution included in the Form 10 Filing
(the "Distribution Agreement"), Assignor does hereby sell, assign, convey and
transfer all of its right, title and interest as Lessee in and to the Lease and
the other Operative Documents to Assignee.
2. Assignee hereby accepts the foregoing assignment and assumes and agrees
to perform, subject to the terms and conditions hereof, all of Assignor's
duties, obligations, and liabilities as Lessee under the Lease and the other
Operative Documents, whenever arising.
3. Assignor agrees to indemnify Assignee, and Assignee agrees to indemnify
Assignor with respect to matters relating to the Lease and the other Operative
Documents in accordance with the Distribution Agreement between such parties
related to the Spin-Off.
4. Assignor shall have no further duty or obligation under the Operative
Documents (including, without limitation, the Operative Guaranty) and Assignor
shall be released from all duties and obligations thereunder upon the
effectiveness of this Assignment pursuant to Section 7 hereof.
5. The parties hereto hereby agree that the consummation of the
transactions contemplated by the Form 10 Filing (including the assignment of the
Operative Documents contemplated hereby) shall not constitute a default or
breach of any of the obligations of the respective parties to the Operative
Documents. The parties hereto further acknowledge that the Assignee and certain
of its subsidiaries are now, or will hereafter become, obligated under the
following credit facilities, and agree that the incurrence and performance of
such obligations shall not constitute a default or breach of any of the
obligations of the respective parties to the Operative Documents:
(i) Revolving credit facilities in an aggregate amount of up to
$400,000,000 with SunTrust Bank, as the initial agent thereunder, as the same
may be amended, restated or refinanced from time to time; and
(ii) Revolving credit facilities in an aggregate amount of up to
$180,000,000 with First Union National Bank (or such other lender as selected by
Assignee), as the same may be amended, restated or refinanced from time to time.
6. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This Assignment and
the provisions hereof are solely for the benefit of the parties hereto and their
respective successors and assigns and not any other person; and, without
limiting the generality of the foregoing, no other person shall be
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deemed to be a third party beneficiary hereof or shall have any right or remedy
hereunder or with respect to any provision hereof.
7. This Assignment shall be effective with respect to the Assignor, the
Assignee, the Lessor, the Agent and the Lease Participant as of the Effective
Time. Notwithstanding the foregoing, the release of Assignor hereunder pursuant
to Section 4 shall be conditioned on the execution and delivery of the following
documents by the respective parties thereto no later than July 31, 2001, and
Assignor and Assignee will provide the same as indicated below:
(a) Assignee's Resolutions and Incumbency Certificate, etc. Each of
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the Agent and the Lessor shall have received (x) a certificate of the
Secretary or an Assistant Secretary of the Assignee, attaching and
certifying as to (i) the Board of Directors' or other authorizing
resolution duly authorizing the execution, delivery and performance by it
of this Assignment, (ii) the incumbency and signatures of persons
authorized to execute and deliver such documents on its behalf, (iii) its
articles of incorporation, certified as of a recent date by the Secretary
of State of the state of its incorporation, (iv) its by-laws and (v) the
Distribution Agreement, and (y) good standing certificates for the
Assignee from the appropriate offices of the States of such Person's
incorporation and principal place of business.
(b) Evidence of Insurance. The Lessor and the Agent shall have
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received from the Assignee certificates of insurance evidencing compliance
with the provisions of Article VIII of the Lease (including the naming of
the Lessor, the Agent and the Lender as additional insured or loss payee
with respect to such insurance), in form and substance reasonably
satisfactory to the Lessor and the Agent.
(c) UCC Financing Statement; Recording Fees; Transfer Taxes. Each
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Funding Party shall have received satisfactory evidence of (i) the
execution and delivery to Agent of a UCC-1 and UCC-2 financing statement
to be filed with the Secretary of State of Florida (or other appropriate
filing office) and Pinellas County, Florida, and such other Uniform
Commercial Code financing statements as any Funding Party deems necessary
or desirable in order to protect such Funding Party's interests and (ii)
the payment of all recording and filing fees and taxes with respect to any
recordings or filings made of this Assignment.
(d) Opinion. The opinions of the general counsel and the special
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counsel for the Assignee in the forms attached hereto as Exhibits B and C,
respectively, with such changes thereto as may be satisfactory to the
Lessor and the Agent.
(e) Confirmation. The confirmation by the Assignor and the Assignee
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of the occurrence of the "Effective Time" and the "Distribution Date",
each as defined in the Distribution Agreement.
Upon receipt of the foregoing, the respective recipients thereof will, on
request, acknowledge receipt to Assignor and Assignee.
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8. The Assignee represents and warrants to each of the other parties
hereto as follows:
(a) Corporate Existence and Power. The Assignee is a corporation
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duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation, is duly qualified to transact
business in every jurisdiction where the failure to qualify would have a
Material Adverse Effect, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
(b) Corporate and Governmental Authorization; No Contravention. The
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execution, delivery and performance by the Assignee of this Assignment (i)
are within the Assignee's corporate powers, (ii) have been duly authorized
by all necessary corporate action, (iii) require no action by or in
respect of or filing with, any governmental body, agency or official, (iv)
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or
by-laws of the Assignee or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Assignee or any of the
Subsidiaries, and (v) do not result in the creation or imposition of any
Lien on any asset of the Assignee or any of the Subsidiaries.
(c) Binding Effect. This Assignment constitutes a valid and binding
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agreement of the Assignee, enforceable in accordance with its terms,
provided that the enforceability hereof and thereof is subject in each
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case to general principles of equity and to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally.
(d) No Litigation. There is no action, suit or proceeding pending
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against or affecting the Assignee or any of the Subsidiaries before any
court or arbitrator or any governmental body, agency or official which
could reasonably be expected to have a Material Adverse Effect.
(e) Investment Company Act. Neither the Assignee nor any Subsidiary
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is an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(f) Public Utility Holding Company Act. Neither the Assignee nor any
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Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended.
(g) No Events. (i) No Event of Default, Potential Event of Default,
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Event of Loss or Event of Taking relating to the Leased Property shall
have occurred and be continuing, (ii) no action shall be pending or
threatened by a Governmental Authority to
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initiate a Condemnation or an Event of Taking, and (iii) there shall not
have occurred any event that could reasonably be expected to have a
Material Adverse Effect since March 31, 1997.
9. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF GEORGIA, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND
CONFLICTS OF LAW RULES OF SUCH STATE, EXCEPT AS TO MATTERS RELATING TO THE
ASSIGNMENT OF THE LEASEHOLD ESTATE HEREUNDER, AND THE EXERCISE OF RIGHTS AND
REMEDIES WITH RESPECT THERETO, WHICH SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA.
10. The Assignee hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Assignment or any other Operative Document, or
for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of Georgia
sitting in ▇▇▇▇▇▇ County, Georgia, the courts of the United States of
America for the Northern District of Georgia, and appellate courts from
any thereof;
(b) consents that any such action or proceedings may be brought to
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
party at Certegy Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Corporate Vice President,
General Counsel and Secretary with a copy to: Certegy Inc., ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Corporate
Vice President and Chief Financial Officer or at such other address of
which the other parties hereto shall have been notified pursuant to
Section 8.2 of the Master Agreement; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law.
11. As herein amended, the Operative Documents shall remain in full force
and effect and are hereby ratified and confirmed in all respects. After the
Effective Time hereof, (i) all references in the Master Agreement or any other
Operative Document to the "Master Agreement" or another Operative Document shall
refer to the Master Agreement, as amended hereby, or such other Operative
Agreement, as amended hereby and (ii) all references in any Operative Document
to the "Lessee" or "Guarantor" shall be deemed to be references to the Assignee.
This Assignment shall for all purposes be deemed to be an Operative Document
under the Master Agreement.
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12. This Assignment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Assignment by signing any such counterpart.
13. Without limiting its obligations under Section 8.8 of the Master
Agreement, the Assignee agrees to pay the actual reasonable costs and expenses
of the Agent (including, without limitation, reasonable fees and disbursements
of counsel to the Agent, actually incurred) in connection with the preparation,
execution and delivery of this Assignment.
14. This Assignment shall be binding upon the parties to the Master
Agreement, the Lease and the other Operative Documents and their respective
successors and assigns.
15. Any provision in this Assignment that is held to be inoperative,
unenforceable or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
in that jurisdiction or the operation, enforceability or validity of that
provision in any other jurisdiction, and to this end the provisions of this
Assignment are declared to be severable.
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IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed and delivered and attested by an officer thereunto duly authorized as
of the day and year first above written.
ASSIGNOR:
EQUIFAX INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President,
General Counsel and Secretary
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Witnessed By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
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/s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Florida
IN WITNESS WHEREOF, the Assignee has caused this Assignment to be duly
executed and delivered and attested by an officer thereunto duly authorized as
of the day and year first above written.
ASSIGNEE:
CERTEGY INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
Witnessed By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
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/s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Florida
IN WITNESS WHEREOF, the Lessor has caused this Assignment to be duly
executed and delivered and attested by an officer thereunto duly authorized as
of the day and year first above written.
LESSOR:
PREFCO VI LIMITED PARTNERSHIP
By: AFG PREFCO GP, LLC, a Texas limited
liability company, as general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: President
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Witnessed By:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
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Florida
IN WITNESS WHEREOF, the Agent and Lease Participant have caused this
Assignment to be duly executed and delivered and attested by an officer
thereunto duly authorized as of the day and year first above written.
AGENT AND LENDER
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
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Witnessed By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Florida
STATE OF Georgia )
----------- ) ss.
COUNTY OF ▇▇▇▇▇▇ )
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I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared ▇▇▇▇ ▇. ▇▇▇▇, to me known to be the Vice President, General
Counsel and Secretary of EQUIFAX INC., a Georgia corporation, who is described
in and who executed the foregoing instrument and who is either personally known
to me or produced __________________ as identification, and who acknowledged
before me that he executed the same for the purposes expressed therein.
WITNESS my hand and official seal in the county and state aforesaid this
26th day of June, 2001.
[Notary Seal] /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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(Notary Public)
My commission expires: 03/15/02
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Florida
STATE OF Georgia )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to me known to be the Vice President and
Assistant Secretary of CERTEGY INC., a Georgia corporation, who is described in
and who executed the foregoing instrument and who is either personally known to
me or produced __________________ as identification, and who acknowledged before
me that he executed the same for the purposes expressed therein.
WITNESS my hand and official seal in the county and state aforesaid this
26th day of June, 2001.
[Notary Seal] /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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(Notary Public)
My commission expires: 03/15/02
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Florida
STATE OF Georgia )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known to be the Managing Director of
SUNTRUST BANK, a Georgia corporation, who is described in and who executed the
foregoing instrument and who is either personally known to me or produced n/a as
identification, and who acknowledged before me that he executed the same for the
purposes expressed therein.
WITNESS my hand and official seal in the county and state aforesaid this
25th day of June, 2001.
[Notary Seal] /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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(Notary Public)
My commission expires: March 1, ▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ )
) ss.
COUNTY OF DALLAS )
The foregoing instrument was acknowledged before me this 22nd day of June,
2001, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President of AFG PREFCO GP, LLC, a Texas limited
liability company, as general partner of PREFCO VI LIMITED PARTNERSHIP, a
Connecticut limited partnership, on behalf of said company as general partner of
said partnership. He is personally known tome.
WITNESS my hand and official seal in the county and state aforesaid this
22nd day of June, 2001.
[Notary Seal] /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Notary Public)
My commission expires: 12/17/01
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Florida
EXHIBIT A
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Legal Description
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▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SECOND REPLAT, according to map or plat
thereof recorded in Plat Book 107, page 73, of the public records of Pinellas
County, Florida
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LEASE AGREEMENT
Dated as of December 30, 1999
between
PREFCO VI LIMITED PARTNERSHIP, as Lessor,
and
EQUIFAX INC., as Lessee
[Florida Property]
================================================================================
THIS LEASE AGREEMENT IS GIVEN IN CONNECTION WITH A SYNTHETIC LEASE TRANSACTION
IN WHICH A MORTGAGE AND SECURITY AGREEMENT, A COLLATERAL ASSIGNMENT OF THIS
LEASE, AND THIS LEASE WILL BE RECORDED AS PART OF A SINGLE TRANSACTION. PAYMENTS
DUE UNDER THE LEASE WILL BE MADE BY THE LESSEE TO THE MORTGAGEE RATHER THAN THE
MORTGAGOR, IN SATISFACTION OF MORTGAGOR'S LOAN OBLIGATIONS TO MORTGAGEE, AS
PROVIDED IN THE COLLATERAL ASSIGNMENT OF LEASE. DOCUMENTARY STAMP TAXES ARE
BEING PAID UPON RECORDATION OF THE MORTGAGE IN THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
TABLE OF CONTENTS
(Lease Agreement)
Page
APPENDIX A
to
Master Agreement (Florida Property), Lease,
and Loan Agreement
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DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice
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versa;
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(ii) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended, supplemented or modified and in effect from time
to time in accordance with the terms thereof and, if applicable, the
terms of the other Operative Documents and reference to any promissory
note includes any promissory note which is an extension or renewal
thereof or a substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable Law
as amended, modified, codified, replaced or reenacted, in whole or in
part, and in effect from time to time, including rules and regulations
promulgated thereunder and reference to any section or other provision
of any Applicable Law means that provision of such Applicable Law from
time to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such section
or other provision;
(vi) reference in any Operative Document to any Article,
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Section, Appendix, Schedule or Exhibit means such Article or Section
------- -------- -------- ------- ------- -------
thereof or Appendix, Schedule or Exhibit thereto;
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(vii) "hereunder", "hereof", "hereto" and words of similar import
shall be deemed references to an Operative
Document as a whole and not to any particular Article, Section or other
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provision hereof;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding
such term;
(ix) "or" is not exclusive;
(x) relative to the determination of any period of time, "from"
means "from and including" and "to" means "to but excluding"; and
(xi) "knowledge" and "becomes aware" or words of similar meaning
means, with respect to the Lessee or any Subsidiary, that a Principal
Officer (A) has actual knowledge of such matters, or (B) from all the
facts and circumstances actually known to him at the time in question
he has reason to know such matters exist.
B. Accounting Terms. Unless otherwise specified in any Operative
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Document, all terms of an accounting character used in any Operative Document
shall be interpreted, all accounting determinations under any Operative Document
shall be made, and all financial statements required to be delivered under any
Operative Document shall be prepared, in accordance with GAAP, applied on a
basis consistent (except for changes concurred in by the Lessee's and its
Consolidated Subsidiaries' independent public accountants or otherwise required
by a change in GAAP) with the most recent audited consolidated financial
statements of the Lessee and its Consolidated Subsidiaries delivered to the
Funding Parties, unless with respect to any such change concurred in by the
Lessee's independent public accountants or required by GAAP in determining
compliance with any of the provisions of any of the Operative Documents: (i) the
Lessee shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements, or (ii) the Required Funding
Parties shall so object in writing within 30 days after the delivery of such
financial statements, in either of which events such calculations shall be made
on a basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which, if
objection is made in respect of the first financial statements delivered under
Section 5.1 of the Master Agreement, shall mean the financial statements
referred to in Section 4.1(d) of the Master Agreement).
C. Conflict in Operative Documents. If there is any conflict between
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any Operative Documents, such Operative Documents shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only
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to the extent) of such conflict, the Master Agreement shall prevail and control.
D. Legal Representation of the Parties. The Operative Documents were
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negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears, terms
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defined herein have the respective indicated meanings when used in each
Operative Document.
"A Loan" means the A Percentage of Loans made by Lenders pursuant to
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the Loan Agreement and the Master Agreement.
"A Note" is defined in Section 2.2 of the Loan Agreement.
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"A Percentage" means 78%.
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"Accounts Management Assets and Liabilities" has the meaning set forth
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in the CSC Agreement.
"Address" means with respect to any Person, its address set forth in
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Schedule 8.2 to the Master Agreement or such other address as it shall have
identified to the parties to the Master Agreement in writing.
"Adjusted London Interbank Offered Rate" applicable to any Rent Period
--------------------------------------
means a rate per annum equal to the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Rent Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
"Affected Funding Party" is defined in Section 7.7(d) of the Master
----------------------
Agreement.
"Affiliate" of any relevant Person means (i) any Person that directly,
---------
or indirectly through one or more intermediaries, controls the relevant Person
(a "Controlling Person"), (ii) any Person (other than the relevant Person or a
Subsidiary of the relevant Person) which is controlled by or is under common
control with a Controlling Person, or (iii) any Person (other than a Subsidiary
of the relevant Person) of which the relevant Person owns, directly or
indirectly, 20% or more of the common stock or equivalent equity interests. As
used herein, the term "control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
-3-
a Person, whether through the ownership of voting securities, by contract or
otherwise.
"AFG" is defined in the preamble of the Master Agreement.
---
"After-Tax Basis" means (a) with respect to any payment to be received
---------------
by an Indemnitee (which, for purposes of this definition, shall include any Tax
Indemnitee), the amount of such payment supplemented by a further payment or
payments so that, after deducting from such payments the amount of all Taxes
(net of any current credits, deductions or other Tax benefits arising from the
payment by the Indemnitee of any amount, including Taxes, for which the payment
to be received is made) imposed currently on the Indemnitee by any Governmental
Authority or taxing authority with respect to such payments, the balance of such
payments shall be equal to the original payment to be received and (b) with
respect to any payment to be made by any Indemnitee, the amount of such payment
supplemented by a further payment or payments so that, after increasing such
payment by the amount of any current credits or other Tax benefits realized by
the Indemnitee under the laws of any Governmental Authority or taxing authority
resulting from the making of such payments, the sum of such payments (net of
such credits or benefits) shall be equal to the original payment to be made;
provided, however, for the purposes of this definition, and for purposes of any
-------- -------
payment to be made to either the Lessee or an Indemnitee on an after-tax basis,
it shall be assumed that (i) federal, state and local taxes are payable at the
highest combined marginal federal and state statutory income tax rate (taking
into account the deductibility of state income taxes for federal income tax
purposes) applicable to corporations from time to time and (ii) such Indemnitee
or the Lessee has sufficient income to utilize any deductions, credits (other
than foreign tax credits, the use of which shall be determined on an actual
basis) and other Tax benefits arising from any payments described in clause (b)
of this definition.
"Agent" means SunTrust Bank, Atlanta, a Georgia banking corporation, in
-----
its capacity as agent under the Master Agreement and the Loan Agreement.
"Alterations" means fixtures, alterations, improvements, modifications
-----------
and additions to the Leased Property.
"Alternative Rate" means, for any period, an interest rate per annum
----------------
equal to the rate of interest most recently announced by the Agent in Atlanta,
Georgia from time to time as its prime lending rate (or other comparable
reference rate) for calculating interest on certain loans, which need not be the
lowest interest rate charged by such bank. If such prime lending rate or
equivalent of such bank changes from time to time after the date
-4-
hereof, the Alternative Rate shall be automatically increased or decreased, as
the case may be, without notice to the Lessee as of the effective time of each
change in such prime lending rate or equivalent.
"Applicable Law" means all existing and future applicable laws
--------------
(including Environmental Laws), rules, regulations (including proposed,
temporary and final income tax regulations), statutes, treaties, codes,
ordinances, permits, certificates, orders and licenses of and interpretations
by, any Governmental Authority, and applicable judgments, decrees, injunctions,
writs, orders or like action of any court, arbitrator or other administrative,
judicial or quasi-judicial tribunal or agency of competent jurisdiction
(including those pertaining to health, safety or the environment (including,
without limitation, wetlands) and those pertaining to the construction, use or
occupancy of the Leased Property) and any restrictive covenant or deed
restriction or easement of record affecting the Leased Property.
"Appraisal" is defined in Section 5.21 of the Master Agreement.
---------
"Appraiser" means an MAI appraiser satisfactory to the Agent and the
---------
Lessor.
"Assignment Agreement" means with respect to the partnership interests
--------------------
in the Lessor the instruments assigning such interests to AFG PREFCO GP, LLC and
AFG PREFCO, LLC.
"Assignment of Lease and Rents" means the Assignment of Lease and
-----------------------------
Rents, dated as of the Closing Date, from the Lessor to the Agent.
"Authority" is defined in Section 7.6 of the Master Agreement.
---------
"Authorized Officer" means (i) any of the following officers of the
------------------
Lessee: Chairman, President, Executive Vice Presidents, Senior Vice Presidents,
Chief Financial Officer, Treasurer, Assistant Treasurer and Corporate
Controller, and (ii) any other officers of the Lessee as the Lessee may notify
the Agent in writing from time to time.
"Awards" means any award or payment received by or payable to the
------
Lessor or the Lessee on account of any Condemnation or Event of Taking (less the
actual costs, fees and expenses incurred in the collection thereof, for which
the Person incurring the same shall be reimbursed from such award or payment).
-5-
"B Loan" means the B Percentage of Loans made by a Lender pursuant to
------
the Loan Agreement and the Master Agreement.
"B Note" is defined in Section 2.2 of the Loan Agreement.
------
"B Percentage" means 18.5%.
------------
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
---------------
"Base Term" means, with respect to the Leased Property, (a) the period
---------
commencing on the Closing Date and ending on May 29, 2009 or (b) such shorter
period as may result from earlier termination of the Lease as provided therein.
"Basic Rent" means, for any Lease Term, the rent payable pursuant to
----------
Section 3.1 of the Lease, determined in accordance with the following: each
installment of Basic Rent payable on any Payment Date shall be in an amount
equal to the sum of (A) the aggregate amount of Lender Basic Rent payable on
such Payment Date, plus (B) the aggregate amount of Lessor Basic Rent payable on
such Payment Date, in each case for the Leased Property or Properties that are
then subject to the Lease.
"Board of Directors", with respect to a corporation, means either the
------------------
Board of Directors or any duly authorized committee of that Board which pursuant
to the by-laws of such corporation has the same authority as that Board as to
the matter at issue.
"Building" means the buildings, structures and improvements located or
--------
to be located on the Land, along with all fixtures used or useful in connection
with the operation of the Leased Property, including, without limitation, all
furnaces, boilers, compressors, elevators, fittings, pipings, connectives,
conduits, ducts, partitions, equipment and apparatus of every kind and
description now or hereafter affixed or attached or used or useful in connection
with the Building, all equipment financed by the Lessor and/or the Lenders and
all Alterations (including all restorations, repairs, replacements and
rebuilding of such buildings, improvements and structures) thereto (but in each
case excluding trade fixtures financed other than by the Lessor or the Lenders).
"Business Day" means any day other than a Saturday, Sunday or other day
------------
on which banks are required or authorized to be closed for business in Atlanta,
Georgia.
"Capital Stock" means any nonredeemable capital stock of a Person (to
-------------
the extent issued to another Person), whether common or preferred.
-6-
"Cash Flow" means the sum of the Lessee's and its Consolidated
---------
Subsidiaries', for any applicable period, (i) Consolidated Net Income, plus (ii)
----
Consolidated Interest Expense, plus (iii) income taxes, plus (iv) depreciation
---- ----
and amortization, all as determined on a consolidated basis in accordance with
GAAP.
"Casualty" means an event of damage or casualty relating to all or part
--------
of the Leased Property that does not constitute an Event of Loss.
"CERCLA" means the Comprehensive Environmental Response Compensation
------
and Liability Act, 42 U.S.C.ss.9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
-------
and Liability Inventory System established pursuant to CERCLA.
"Change of Law" is defined in Section 7.6 of the Master Agreement.
-------------
"Claims" means liabilities, obligations, damages, losses, demands,
------
penalties, fines, claims, actions, suits, judgments, proceedings, settlements,
utility charges, costs, expenses and disbursements (including, without
limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Closing Date" means the date on which the initial Funding occurs under
------------
the Master Agreement.
"Commitment" means as to each Funding Party, its obligation to make
----------
Fundings as investments in the Leased Property, or to make Loans to the Lessor
in an aggregate amount not to exceed at any one time outstanding the amount set
forth for such Funding Party on Schedule 2.2 to the Master Agreement (as it may
be adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Commitment Percentage" means as to any Funding Party, at a particular
---------------------
time, the percentage of the aggregate Commitments in effect at such time
constituted by such Funding Party's Commitment, as such percentage is shown for
such Funding Party on Schedule 2.2 to the Master Agreement (as it may be
adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Compliance Certificate" shall have the meaning set forth in Section
----------------------
5.1 of the Master Agreement.
"Condemnation" means any condemnation, requisition, confiscation,
------------
seizure or other taking or sale of the use,
-7-
occupancy or title to the Leased Property or any part thereof in, by or on
account of any actual eminent domain proceeding or other action by any
Governmental Authority or other Person under the power of eminent domain or any
transfer in lieu of or in anticipation thereof, which in any case does not
constitute an Event of Taking. A Condemnation shall be deemed to have "occurred"
on the earliest of the dates that use, occupancy or title is taken.
"Consolidated Companies" means, collectively, Lessee and all of its
----------------------
Subsidiaries.
"Consolidated Debt" means at any date the Debt of the Lessee and its
-----------------
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Funded Debt" means, with respect to the Lessee and its
------------------------
Consolidated Subsidiaries at any date and as determined on a consolidated basis,
the sum (without duplication) of (i) Long-Term Debt, plus (ii) capital leases
(excluding any Synthetic Lease), plus (iii) Current Maturities of Long-Term
Debt, plus (iv) Short-Term Debt, plus (v) all Debt Guaranteed by the Lessee or
any of its Consolidated Subsidiaries (other than Debt of the Lessee or any of
its Consolidated Subsidiaries).
"Consolidated Interest Expense" for any period means interest, whether
-----------------------------
expensed or capitalized, in respect of Debt of the Lessee or any of its
Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net Income of the
-----------------------
Lessee and its Consolidated Subsidiaries determined on a consolidated basis, but
excluding (i) extraordinary items and (ii) any equity interests of the Lessee or
any Subsidiary in the unremitted earnings of any Person that is not a
Subsidiary.
"Consolidated Net Tangible Assets" means, at any time, Consolidated
--------------------------------
Total Assets, less the sum of the value, as set forth or reflected on the most
recent consolidated balance sheet of the Lessee and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of:
(A) All assets which would be treated as intangible assets for
balance sheet presentation purposes under GAAP, excluding "Purchased Data
Files", but including without limitation goodwill (as determined by the Lessee
in a manner consistent with its past accounting practices and in accordance with
GAAP), trademarks, tradenames, copyrights, patents and technologies, and
unamortized debt discount and expense;
-8-
(B) To the extent not included in (A) of this definition, any
amount at which shares of Capital Stock of the Lessee appear as an asset on the
balance sheet of its Consolidated Subsidiaries; and
(C) To the extent not included in (A) of this definition,
deferred expenses.
"Consolidated Operating Profits" means, for any period, the Operating
------------------------------
Profits of the Lessee and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other
-----------------------
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Lessee in its consolidated financial statements as of such
date.
"Consolidated Total Assets" means, at any time, the total assets of the
-------------------------
Lessee and its Consolidated Subsidiaries, determined on a consolidated basis, as
set forth or reflected on the most recent consolidated balance sheet of the
Lessee and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Contractual Obligation" of any Person means any provision of any
----------------------
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"Controlled Group" means all members of a controlled group of
----------------
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Lessee are treated as a single employer
under Section 414 of the Tax Code.
"Credit Agreement" means the Credit Agreement dated as of November 21,
----------------
1997 among the Lessee, certain Wholly Owned Subsidiaries of the Lessee, the
banks party thereto and Wachovia Bank, N.A. as agent.
"CSC" means Computer Sciences Corporation, a Texas corporation.
---
"CSC Agreement" means the Agreement for Computerized Credit Reporting
-------------
Services and Options to Purchase and Sell Assets, dated as of the 1st day of
August, 1988, among The Credit Bureau, Incorporated of Georgia, the Lessee, CSC,
CSC Credit Services, Inc., Credit Bureau of Cincinnati, Inc., Credit Bureau of
Greater Kansas City, Inc., ▇▇▇▇▇ Holding Company, CSC Credit Services of
Minnesota, Inc. and CSC Accounts Management, Inc.
"CSC Put" means either of (i) the giving of any notice to the Lessee or
-------
any Affiliate of the Lessee in accordance with the
-9-
CSC Agreement which shall require the Lessee or any Affiliate of the Lessee to
purchase or otherwise acquire the Accounts Management Assets and Liabilities, or
the Subsidiaries' Assets and Liabilities, or both of them; or (ii) the
occurrence of an event or series of events which shall result at any time or
times in the direct or indirect ownership by the Lessee, any one or more
Affiliates of the Lessee, or any combination of the Lessee and any one or more
of its Affiliates, of the Accounts Management Assets and Liabilities, or the
Subsidiaries' Assets and Liabilities, or both of them.
"Current Maturities of Long Term Debt" means all payments in respect of
------------------------------------
Long Term Debt (other than Debt under the Credit Agreement) that are required to
be made within one year from the date of determination, whether or not the
obligation to make such payments would constitute a current liability of the
obligor under GAAP.
"Debt" of any Person means at any date, without duplication, (i) all
----
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except (A) trade accounts payable arising in the ordinary course of
business and (B) any obligation relating to or arising out of the CSC Put prior
to the actual payment therefor, (iv) all obligations of such Person as lessee
under capital leases (excluding, however, Synthetic Lease), (v) all obligations
of such Person to reimburse any bank or other Person in respect of amounts
payable under a banker's acceptance, (vi) all Redeemable Preferred Stock of such
Person (in the event such Person is a corporation), (vii) all obligations of
such Person to reimburse any bank or other Person in respect of amounts paid or
to be paid under a letter of credit or similar instrument, (viii) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, and (ix) all Debt and other obligations of others
Guaranteed by such Person (other than the Debt and other obligations of the
Lessee or the Consolidated Subsidiaries of the Lessee Guaranteed by,
respectively, the Lessee or the Consolidated Subsidiaries of the Lessee).
"Deed" means, with respect to the remainder interest in the Land, a
----
Limited Warranty Deed, dated the Closing Date, from the applicable Seller to the
Lessor, conveying such Land.
"Dollars" or "$" means dollars in lawful currency of the United States
------- -
of America.
-10-
"Domestic Business Day" means any Business Day other than a Business
---------------------
Day on which banks are required or authorized to be closed for business in New
York City, New York.
"Eligible Assignee" means any of the following: (i) a commercial bank
-----------------
organized under the laws of the United States, or any State thereof, and having
total assets in excess of $100,000,000; (ii) a savings and loan association or
savings bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $100,000,000; (iii) a commercial
bank organized under the laws of any other country having total assets in excess
of $100,000,000, provided that such bank is acting through a branch or agency
located in the United States; (iv) a finance company, insurance company or other
financial institution, lender or fund (whether a corporation, partnership or
other entity) which is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business, and having total assets
in excess of at least $100,000,000; (v) any Funding Party or any Affiliate of
any Funding Party; or (vi) any other Person consented to by the Lessee and the
Agent, such consent not unreasonably to be withheld.
"Environmental Audit" means, with respect to each parcel of Land, a
-------------------
Phase I Environmental Assessment, which meets or exceeds ASTM Standard E1527-97
and is dated no more than 60 days prior to the related Closing Date, by an
environmental services firm satisfactory to the Funding Parties.
"Environmental Authority" means any foreign, federal, state, local or
-----------------------
regional government that exercises any form of jurisdiction or authority under
any Environmental Law.
"Environmental Authorizations" means all licenses, permits, orders,
----------------------------
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Lessee or any Consolidated Subsidiary required by any
Environmental Law.
"Environmental Judgments and Orders" means all judgments, decrees or
----------------------------------
orders arising from or in any way associated with any Environmental Law, whether
or not entered upon consent or written agreements with an Environmental
Authority or other entity arising from or in any way associated with any
Environmental Law, whether or not incorporated in a judgment, decree or other.
"Environmental Laws" means and include the Resource Conservation and
------------------
Recovery Act of 1976, (RCRA) 42 U.S.C. ▇▇.▇▇. 6901-6987, as amended by the
Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. ▇▇.▇▇. 9601-9657, (CERCLA), the Clean
Air Act, 42 U.S.C.
-11-
ss.ss.7401 et seq., the Occupational Safety and Health Act, the Toxic Substances
Control Act, the Emergency Planning and Community Right to Know Act and any
comparable or implementing federal, state or local environmental laws,
ordinances, rules, orders, statutes, decrees, judgments, injunctions, codes and
regulations, and any other federal, state or local laws, ordinances, rules,
codes and regulations, and any other federal, state or local laws, ordinances,
rules, codes and regulations relating to the environment, human health or
natural resources or the regulation or control of or imposing liability or
standards of conduct concerning human health, the environment, Hazardous
Materials or the clean-up or other remediation of the Leased Property, or any
part thereof, as any of the foregoing may have been from time to time amended,
supplemented or supplanted.
"Environmental Liabilities" means any liabilities, whether accrued,
-------------------------
contingent or otherwise, arising from and in any way associated with any
Environmental Law.
"Environmental Notices" means notice from any Environmental Authority
---------------------
or by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Law, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any, violation of any
Environmental Law or any investigations concerning any violation of any
Environmental Law.
"Environmental Permits" means all permits, licenses, authorizations,
---------------------
certificates and approvals of Governmental Authorities required by Environmental
Law.
"Environmental Proceedings" means any judicial or administrative
-------------------------
proceedings arising from or in any way associated with any Environmental Law.
"Environmental Releases" means releases as defined in CERCLA or under
----------------------
any applicable Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended and in effect from time to time.
"ERISA Affiliate" means, with respect to any Person, each trade or
---------------
business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
-12-
"Euro-Dollar Business Day" means any Domestic Business Day on which
------------------------
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Reserve Percentage" means for any day that percentage
------------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for the Agent (as the same may be
adjusted for any other Funding Party in accordance with Section 7.7 of the
Master Agreement in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Funding Party to United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of the effective date of
any change in the Euro-Dollar Reserve Percentage.
"Event of Default" means any event or condition designated as an "Event
----------------
of Default" in Article XII of the Lease.
"Event of Loss" is defined in Section 10.1 of the Lease.
-------------
"Event of Taking" is defined in Section 10.2 of the Lease.
---------------
"Existing Lease" means the Agreement of Sublease between Honeywell and
--------------
Equifax Payment Services, Inc. dated November 30, 1995.
"Fair Market Rental Value" means, with respect to the Leased Property,
------------------------
the fair market rental value as determined by a qualified certified independent
appraiser chosen by the Lessor that would be obtained in an arm's-length lease
between an informed and willing lessee and an informed and willing lessor, in
either case under no compulsion to lease, and neither of which is related to the
Lessor or Lessee for the lease of the Leased Property on the terms set forth, or
referred to, in the Lease. Such fair market rental value shall be calculated as
the value for the use of the Leased Property to be leased in place at the Land,
assuming, in the determination of such fair market rental value, that the Leased
Property is in the condition and repair required to be maintained by the terms
of the related Lease (unless such fair market rental value is being determined
for the purposes of Section 13.1 of the Lease and except as otherwise
specifically provided in the Lease, in which case this assumption shall not be
made).
"Fair Market Sales Value" means, with respect to the Leased Property or
-----------------------
any portion thereof, the fair market sales value as determined by a qualified
certified independent appraiser chosen
-13-
by the Lessor or, so long as the Funded Amounts are outstanding, the Agent that
would be obtained in an arm's-length transaction between an informed and willing
buyer (other than a lessee currently in possession) and an informed and willing
seller, under no compulsion, respectively, to buy or sell and neither of which
is related to the Lessor or Lessee, for the purchase of the Leased Property.
Such fair market sales value shall be calculated as the value for the use of the
Leased Property, assuming, in the determination of such fair market sales value,
that the Leased Property is in the condition and repair required to be
maintained by the terms of the Lease (unless such fair market sales value is
being determined for purposes of Section 13.1 of the Lease and except as
otherwise specifically provided in the Lease or the Master Agreement, in which
case this assumption shall not be made).
"Final Rent Payment Date" with respect to the Leased Property is
-----------------------
defined in Section 13.1(e) of the Lease.
"Fiscal Quarter" means any fiscal quarter of the Lessee.
--------------
"Fiscal Year" means any fiscal year of the Lessee.
-----------
"Funded Amount" means, as to the Lessor, the Lessor's Invested Amounts,
-------------
and, as to each Lender, the outstanding principal of such Lender's Loans.
"Funding" means any funding by the Funding Parties pursuant to Section
-------
2.2 of the Master Agreement.
"Funding Date" means the Closing Date on which the Funding occurs under
------------
Section 2 of the Master Agreement.
"Funding Office" means for each Funding Party the office such Funding
--------------
Party may designate in writing from time to time to the Lessee and the Agent as
its funding office.
"Funding Parties" means the Lessor, the Agent and the Lenders,
---------------
collectively.
"Funding Party Balance" means, with respect to the Leased Property, (i)
---------------------
for the Lessor as of any date of determination, an amount equal to the sum of
the outstanding related Lessor's Invested Amount, all accrued and unpaid Yield
on such outstanding related Lessor's Invested Amount, all unpaid related fees
owing to the Lessor under the Operative Documents, and all other related amounts
owing to the Lessor by the Lessee under the Operative Documents, and (ii) for
any Lender as of any date of determination, an amount equal to the sum of the
outstanding related Loans of such Lender, all accrued and unpaid interest
thereon, all unpaid related fees owing to such Lender under the
-14-
Operative Documents, and all other related amounts owing to such Lender by the
Lessee under the Operative Documents.
"Funding Request" is defined in Section 2.2 of the Master Agreement.
---------------
"GAAP" means generally accepted accounting principles applied on a
----
basis consistent with those which, in accordance with Section B of this Appendix
A, are to be used in making the calculations for purposes of determining
compliance with the terms of the Operative Documents.
"Governmental Action" means all permits, authorizations, registrations,
-------------------
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law and shall include, without limitation, all citings, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of the Leased Property.
"Governmental Authority" means any foreign or domestic federal, state,
----------------------
county, municipal or other governmental or regulatory authority, agency, board,
body, commission, instrumentality, court or any political subdivision thereof.
"Guarantee" by any Person means any obligation, contingent or
---------
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
--------
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means the Lessee, in its capacity as guarantor under the
---------
Operative Guaranty.
"Hazardous Materials" means any pollutant, contaminant, waste,
-------------------
hazardous or toxic chemical including asbestos containing
-15-
materials in any form or condition; urea formaldehyde foam insulation;
polychlorinated biphenyls (PCBs) in any form or condition; including, without
limitation, any solid or hazardous waste, as defined in the Resource
Conservation and Recovery Act of 1980, 42 U.S.C. ss. 6901 et seq. and its
implementing regulations and amendments, or in any applicable state or local law
or regulation, any "hazardous substance", "pollutant", or "contaminant" as
defined in CERCLA, or in any applicable state or local law or regulation;
gasoline, or any other petroleum product or by-product, including, crude oil or
any fraction thereof; toxic substances, as defined in the Toxic Substances
Control Act of 1976, or in any applicable state or local law or regulation; or
insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable state
or local law or regulation, as each such Act, statute or regulation may be
amended from time to time.
"Honeywell" means Honeywell Inc., a Delaware corporation.
---------
"Honeywell Lease" means the existing lease from Lessor to Honeywell.
---------------
"Indemnified Risks" is defined in Section 7.1 of the Master Agreement.
-----------------
"Indemnitee" means the Agent (in its individual capacity and in its
----------
capacity as Agent), each Lender, and the Lessor, and their respective
Affiliates, successors, permitted assigns, permitted transferees, employees,
officers, directors and agents; provided, however, that in no event shall the
-------- -------
Lessee be an Indemnitee.
"Indemnitee Group" means the respective Affiliates, employees,
----------------
officers, directors and agents of the Agent (in its individual capacity), each
Lender or the Lessor, as applicable; provided, however, that in no event shall
-------- -------
the Lessee be a member of the Indemnitee Group.
"Interest Coverage Ratio" means, for any period of determination, the
-----------------------
ratio of the Lessee's and its Consolidated Subsidiaries' (i) Consolidated Net
Income before Consolidated Interest Expense and income taxes, to (ii)
Consolidated Interest Expense, such ratio being calculated on a consolidated
basis for the Fiscal Quarter just ended and the immediately preceding three
Fiscal Quarters.
"Investment" means any investment in any Person, whether by means of
----------
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, making of a time deposit with such Person,
Guarantee or assumption of any obligation of such Person or otherwise.
-16-
"Investment Guidelines" means the guidelines for investment of funds of
---------------------
the Lessee and the Subsidiaries as approved by the Board of Directors of the
Lessee or an authorized executive committee thereof and in effect on the Initial
Closing Date, a copy of which has been furnished to the Funding Parties, as
modified from time to time with the approval of the Board of Directors of the
Lessee or an authorized executive committee with notification to the Funding
Parties.
"Land" means the land described in the Lease.
----
"Laws" means all ordinances, statutes, rules, regulations, orders,
----
injunctions, writs, treaties or decrees of any governmental or political
subdivision or agency thereof, or of any court or similar entity established by
any thereof.
"Lease" means the Lease Agreement dated as of December 30, 1999 between
-----
the Lessee and the Lessor, with such modifications as are satisfactory to the
Lessor and the Agent in conformity with Applicable Law to assure customary
remedies in favor of the Funding Parties in the jurisdiction where the Leased
Property is located.
"Lease Balance" means, with respect to the Leased Property, as of any
-------------
date of determination, an amount equal to the sum of all Funding Party Balances.
"Lease Term" with respect to the Lease means (a) the Base Term, as it
----------
may be renewed pursuant to Section 14.9 of the Lease or (b) such shorter period
as may result from earlier termination of the Lease as provided therein.
"Lease Termination Date" means the last day of the Lease Term, as the
----------------------
same may be accelerated pursuant to the Lease.
"Leased Property" means Land and the related Building(s).
---------------
"Leased Property Balance" means, with respect to the Leased Property,
-----------------------
as of any date of determination, an amount equal to that portion of the Lease
Balance which relates to the Leased Property.
"Lender Basic Rent" means, for any Rent Period under the Lease when a
-----------------
Loan is outstanding, the aggregate amount of interest accrued on the Loans
related to the Leased Property subject to the Lease pursuant to Section 2.5 of
the Loan Agreement during such Rent Period.
"Lenders" means such financial institutions as are, or who may
-------
hereafter become, parties to the Loan Agreement as Lenders to the Lessor.
-17-
"Lessee" is defined in the preamble to the Master Agreement.
------
"Lessor" is defined in the preamble to the Master Agreement.
------
"Lessor Basic Rent" means, for any Rent Period under any Lease, the
-----------------
aggregate amount of Yield accrued on the Lessor's Invested Amounts under the
Lease under Section 2.3(a) of the Master Agreement during such Rent Period.
"Lessor Liens" means Liens on or against the Leased Property, the
------------
Lease, any other Operative Document or any payment of Rent (a) which result from
any act or omission of, or any Claim against, the Lessor unrelated to the
transactions contemplated by the Operative Documents or (b) which result from
any Tax owed by the Lessor, except any Tax for which the Lessee is obligated to
indemnify (including, without limitation, in the foregoing exception, any
assessments with respect to the Leased Property noted on the related Title
Policy or assessed in connection with any construction or development by the
Lessee).
"Lessor's Invested Amount" means the amounts funded by the Lessor
------------------------
pursuant to Section 2 of the Master Agreement that are not proceeds of Loans by
a Lender.
"LIBOR Advance" means that portion of the Funded Amount bearing
-------------
interest or accruing yield based on the Adjusted London Interbank Offered Rate.
"Lien" means, with respect to any asset, any mortgage, deed to secure
----
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing
(excluding, however, any Synthetic Lease). For the purposes of the Operative
Documents, the Lessee or any Consolidated Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease under
GAAP or a Synthetic Lease) relating to such asset.
"Loan" shall have the meaning specified in Section 2.1 of the Loan
----
Agreement.
"Loan Agreement" means the Loan Agreement dated as of December 30, 1999
--------------
among the Lessor, the Agent and the Lenders.
-18-
"Loan Documents" means the Loan Agreement, the Notes, the Assignment of
--------------
Lease and Rents, the Mortgage and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section
---------------------
5.1 of the Loan Agreement, provided that any requirement for the giving of
--------
notice, the lapse of time, or both, or any other condition, event or act has
been satisfied.
"Loan Potential Event of Default" means any event, condition or failure
-------------------------------
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"London Interbank Offered Rate" means for any Rent Period the rate per
-----------------------------
annum determined on the basis of the offered rate for deposits in Dollars of
amounts equal or comparable to the principal amount of the Funded Amounts
offered for a term comparable to such Rent Period, which rates appear on Dow
▇▇▇▇▇ Markets, Inc. Page 3750 (formerly known as Dow ▇▇▇▇▇ Telerate Service Page
3750) as of 11:00 A.M. (London, England time), 2 Euro-Dollar Business Days prior
to the first day of such Rent Period, provided that (i) if more than one such
offered rate appears on the Dow ▇▇▇▇▇ Markets Inc. Page, the "London Interbank
Offered Rate" will be the arithmetic average (rounded upward, if necessary, to
the next higher 1/100th of 1%) of such offered rates; (ii) if no such offered
rates appear on such page, the "London Interbank Offered Rate" for such Rent
Period will be the arithmetic average (rounded upward, if necessary, to the next
higher 1/16th of 1%) of rates quoted by not less than 2 major banks in New York
City, selected by the Agent, at approximately 10:00 A.M., New York City time, 2
Euro-Dollar Business Days prior to the first day of such Rent Period, for
deposits in Dollars offered to leading European banks for a period comparable to
such Rent Period in an amount comparable to the principal amount of the Funded
Amounts.
"Long-Term Debt" means at any date any Consolidated Debt (including,
--------------
without limitation, any subordinated Debt) which matures (or the maturity of
which may at the option of the Lessee or any Consolidated Subsidiary be extended
such that it matures) more than one year after such date.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
-------------
"Margin Regulations" means Regulation T, Regulation U and Regulation X
------------------
of the Board of Governors of the Federal Reserve System, as the same may be in
effect from time to time.
-19-
"Margin Stock" means "margin stock" as defined in Regulations T, U or
------------
X.
"Master Agreement" means the Master Agreement (Florida Property), dated
----------------
as of December 30, 1999, among the Lessee, AFG, the Lessor, the Agent and the
Lender.
"Material Adverse Effect" means, with respect to any event, act,
-----------------------
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the Lessee
and its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies
of the Funding Parties under the Operative Documents, or the ability of each of
the Lessee and its Consolidated Subsidiaries taken as a whole to perform its
obligations under the Operative Documents to which it is a party, as applicable,
or (c) the legality, validity or enforceability of any Operative Document or (d)
the value, utility or useful life of the Leased Property, or (e) the priority,
perfection or status of any Funding Party's interest in the Leased Property.
"Mortgage" means that certain mortgage, deed of trust or security deed,
--------
dated as of the Closing Date, by the Lessor to the Agent, in the form of Exhibit
D attached to the Master Agreement, with such modifications as are satisfactory
to the Lessor and the Agent in conformity with Applicable Law to assure
customary remedies in favor of the Agent in the jurisdiction where the Leased
Property is located.
"Multiemployer Plan" shall have the meaning set forth in Section
------------------
4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the
----------
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Notes" means the A Note and the B Note issued by the Lessor under the
-----
Loan Agreement, and any and all notes issued in replacement or exchange therefor
in accordance with the provisions thereof.
"Obligations" means all amounts owed by, and obligations of, the Lessor
-----------
to the Lenders or the Agent under the Loan Agreement, Notes and other Operative
Documents.
-20-
"Officer's Certificate" of a Person means a certificate signed by the
---------------------
Chairman of the Board or the President or any Executive Vice President or any
Senior Vice President or any other Vice President of such Person signing with
the Treasurer or any Assistant Treasurer or the Controller or any Assistant
Controller or the Secretary or any Assistant Secretary of the such Person, or by
any Vice President who is also Controller or Treasurer signing alone.
"Operating Profits" means, as applied to any Person for any period, the
-----------------
operating revenue of such Person for such period, minus its costs of services
for such period, and minus its selling, general and administrative costs for
such period, but excluding therefrom all extraordinary gains or losses, as
determined in accordance with GAAP.
"Operative Documents" means the Master Agreement, the Operative
-------------------
Guaranty, the Purchase Agreement, the Assignment Agreement, the Remainderman
Conveyance, the Lease, the Notes, the Loan Agreement, the Assignment of Lease
and Rents, the Mortgage and the other documents delivered in connection with the
transactions contemplated by the Master Agreement.
"Operative Guaranty" means the Guaranty dated as of December 30, 1999
------------------
by the Guarantor in favor of the Funding Parties.
"Overdue Rate" means the lesser of (a) the highest interest rate per
------------
annum permitted by Applicable Law and (b) (i) during the Rent Period in which
the payment default first occurs, the Adjusted London Interbank Offered Rate for
such Rent Period plus 2.50%, and (ii) after such Rent Period, an interest rate
per annum (calculated on the basis on a 365-day (or 366-day, if appropriate)
year equal to 2.0% above the Alternate Rate in effect from time to time.
"Partnership Agreement" means that certain Limited Partnership
---------------------
Agreement dated October 26, 1990 between PREFCO VI Inc. and PREFCO VI LP Inc.
"Payment Date" means each January 15th, April 15th, July 15th, and
------------
October 15th during the Lease Term or, if such day is not a Euro-Dollar Business
Day, the next Euro-Dollar Business Day.
"Payment Date Notice" is defined in Section 2.3(e) of the Master
-------------------
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, and any
----
successor thereto.
-21-
"Permitted Investments" means (i) direct obligations of the United
---------------------
States of America and agencies guaranteed by the United States government having
a final maturity of one year or less from the date of purchase thereof; (ii)
certificates of deposit issued by, or bankers' acceptances of, or time deposits
with, any bank, trust company or national banking association incorporated or
doing business under the laws of the United States of America or one of the
states thereof having combined capital and surplus and retained earnings as of
its last report of condition of at least $500,000,000 and having a short-term
deposit debt rating of Al by S&P or Pl by ▇▇▇▇▇'▇ (or, if neither such
organization shall rate such short-term deposits at any time, a rating equal to
the highest ratings assigned by any nationally recognized rating organization in
the United States of America) and having a final maturity of one year or less
from date of purchase thereof; and (iii) commercial paper of any holding company
of a bank, trust company or national banking association described in clause
(ii) and commercial paper of any corporation or finance company incorporated or
doing business under the laws of the United States of America or any state
thereof (other than the Lessee or any Affiliate thereof) having a rating
assigned to such commercial paper of Al by S&P or Pl by ▇▇▇▇▇'▇ (or, if neither
such organization shall rate such commercial paper at any time, a rating equal
to the highest ratings assigned by any nationally recognized rating organization
in the United States of America) and having a final maturity of 270 days or less
from the date of purchase thereof.
"Permitted Liens" means the following with respect to the Leased
---------------
Property: (a) the respective rights and interests of the Lessee, the Lessor, the
Agent, and any Lender, as provided in the Operative Documents, (b) Liens for
Taxes either not yet due or being contested in good faith and by appropriate
proceedings, so long as enforcement thereof is stayed pending such proceedings,
(c) materialmen's, mechanics', workers', repairmen's, employees' or other like
Liens arising after the related Closing Date in the ordinary course of business
for amounts either not yet due or being contested in good faith and by
appropriate proceedings, so long as enforcement thereof is stayed pending such
proceedings, (d) Liens arising after such Closing Date out of judgments or
awards with respect to which at the time an appeal or proceeding for review is
being prosecuted in good faith, so long as the enforcement thereof has been
stayed pending such appeal or review, (e) easements, rights of way,
reservations, servitudes and rights of others against the Land which do not
materially and adversely affect the value or the utility of the Leased Property,
(f) other Liens incidental to the conduct of Lessee's business which were not
incurred in connection with the borrowing of money or the obtaining of advances
or credit and which do not in the aggregate materially detract from the value of
the Leased Property or materially impair the use thereof, (g) assignments,
-22-
leases and subleases expressly permitted by the Operative Documents and (h) the
Agreement Regarding Development and Option Agreement, the Tripartite Agreement,
the Existing Lease and the Honeywell Lease.
"Person" means an individual, a corporation, a partnership, an
------
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
----
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Tax Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Potential Event of Default" means any event, condition or failure
--------------------------
which, with notice or lapse of time or both, would become an Event of Default.
"Principal Officer" means any of the Authorized Officers or the General
-----------------
Counsel of the Lessee.
"Properties" means all real property owned, leased or otherwise used or
----------
occupied by the Lessee or any Consolidated Subsidiary, wherever located.
"Purchase Agreement" means with respect to any Land, the purchase
------------------
agreement with the Seller for the conveyance of such Land to the Lessor.
"Purchase Option" is defined in Section 14.1 of the Lease.
---------------
"Recourse Deficiency Amount" means, with respect to the Leased
--------------------------
Property, as of any date of determination thereof, the sum of the following
relating to the Leased Property: (i) the aggregate principal amount of the A
Loans then outstanding, plus (ii) the A Percentage of the Lessor's Invested
----
Amounts then outstanding, plus (iii) all accrued and unpaid Yield on the A
----
Percentage of the Lessor's Invested Amounts, plus (iv) all accrued and unpaid
----
interest on the A Loans.
"Redeemable Preferred Stock" of any Person means any preferred stock
--------------------------
issued by such Person which is at any time prior to November 21, 2002, the
"Termination Date" under the Credit Agreement either (i) mandatorily redeemable
(by sinking fund or
-23-
similar payments or otherwise) or (ii) redeemable at the option of the holder
thereof.
"Regulation D" means Regulation D of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulations" means the income tax regulations promulgated from time to
-----------
time under and pursuant to the Tax Code.
"Release" means the release, deposit, disposal or leak of any Hazardous
-------
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means, with respect to the Leased Property, the earlier
------------
of (i) the date that the Leased Property Balance has been paid in full, and (ii)
the date on which the Agent gives notice to the Lessor that the Lenders release
any and all interest they may have in the Leased Property, and all proceeds
thereof, and any rights to direct, consent or deny consent to any action by the
Lessor with respect to the Leased Property.
"Remainderman Conveyance" means the conveyance of the interest of the
-----------------------
remainderman in the Land pursuant to the Deed.
"Remarketing Option" is defined in Section 14.6 of the Lease.
------------------
"Rent" means Basic Rent and Supplemental Rent, collectively.
----
"Rent Period" means in the case of LIBOR Advances, either a 1, 2, 3 or
-----------
6 month period; provided that:
-------------
-24-
(a) The initial Rent Period shall begin on the Closing Date
and end on January 14, 2000.
(b) The initial Rent Period for any Funding shall commence on
the Funding Date of such Funding and each Rent Period occurring
thereafter in respect of such Funding shall commence on the day on
which the next preceding Rent Period expires;
(c) If any Rent Period would otherwise expire on a day which
is not a Business Day, such Rent Period shall expire on the next
succeeding Business Day, provided that if any Rent Period in respect of
--------
LIBOR Advances would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day
occurs in such month, such Rent Period shall expire on the next
preceding Business Day;
(d) Any Rent Period in respect of LIBOR Advances which begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Rent Period shall, subject to
paragraph (e) below, expire on the last Business Day of such calendar
-------------
month; and
(e) No Rent Period shall extend beyond the Lease Termination
Date.
"Report" is defined in Section 7.6 of the Master Agreement.
------
"Required Funding Parties" means, at any time, Funding Parties holding
------------------------
an aggregate outstanding principal amount of Funded Amounts equal to at least
51% of the aggregate outstanding principal amount of all Funded Amounts.
"Required Lenders" means, at any time, Lenders holding an aggregate
----------------
outstanding principal amount of Loans equal to at least 51% of the aggregate
outstanding principal amount of all Loans.
"Requirements of Law" means, as to any Person, the charter and by-laws
-------------------
or other organizational or governing documents of such Person, and any law, rule
or regulation, permit, approval, authorization, license or variance, order or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, including, without
limitation, the Securities Act, the Securities Exchange Act, Regulations T, U
and X of the Board of Governors of the Federal Reserve System, and any building,
environmental or land use requirement or permit or occupational safety or health
law, rule or regulation.
-25-
"Responsible Officer" means the Chairman or Vice Chairman of the Board
-------------------
of Directors, the Chairman or Vice Chairman of the Executive Committee of the
Board of Directors, the President, any Senior Vice President or Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer.
"Restricted Information" means any agreement, document, report or
----------------------
memorandum containing proprietary or confidential information (including
historical credit information, trade secrets and other information) relating to
persons other than the Lessee and its Consolidated Subsidiaries, including
Lessee's customers, subtenants and licenses and trade secrets relating to Lessee
and its Consolidated Subsidiaries.
"Restricted Investments" means Investments in joint ventures and in
----------------------
Subsidiaries of the Lessee which are not Consolidated Subsidiaries. Restricted
Investments shall not include Investments made in the acquisition of a Person
which becomes a Consolidated Subsidiary upon the closing of such acquisition.
"SEC" means the United States Securities and Exchange Commission.
---
"Securities" means any stock, shares, voting trust certificates, bonds,
----------
debentures, notes or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
-----------------------
amended.
"Seller" means as to the Leased Property, the seller thereof to the
------
Lessor on the related Closing Date.
"Short-Term Debt" means at any date any Consolidated Debt (including,
---------------
without limitation, any subordinated Debt) which matures less than one year
after such date.
"Subsidiaries' Assets and Liabilities" has the meaning set forth in the
------------------------------------
CSC Agreement.
"Subsidiary" means any corporation or other entity of which securities
----------
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other
-26-
persons performing similar functions are at the time directly or indirectly
owned by the Lessee.
"SunTrust Bank" is defined in the preamble to the Master Agreement.
-------------
"Supplemental Rent" means any and all amounts, liabilities and
-----------------
obligations other than Basic Rent which the Lessee assumes or agrees or is
otherwise obligated to pay under the Lease or any other Operative Document
(whether or not designated as Supplemental Rent) to the Lessor, the Agent, any
Lender or any other party, including, without limitation, amounts under Article
XVI of the Lease, and indemnities and damages for breach of any covenants,
representations, warranties or agreements, and all overdue or late payment
charges in respect of any Funded Amount.
"Synthetic Lease" means any operating lease under GAAP for which the
---------------
lessee retains or obtains federal tax ownership of the property leased.
"Synthetic Lease Obligations" means any and all liabilities,
---------------------------
indebtedness, rent, and all other obligations of the Lessee or any Consolidated
Subsidiary owed under any Synthetic Lease.
"Tax" or "Taxes" is defined in Section 7.4 of the Master Agreement.
--- -----
"Tax Code" means the Internal Revenue Code of 1986, as amended and in
--------
effect from time to time.
"Tax Indemnitee" means the Lessor, the Agent, any Lender and their
--------------
respective Affiliates, successors, permitted assigns, permitted transferees,
employees, officers, directors and agents thereof, provided, however, that in no
-------- -------
event shall the Lessee be a Tax Indemnitee.
"Third Parties" means all lessees, sublessees, licensees and other
-------------
users of the Properties, excluding those users of the Properties in the ordinary
course of the Lessee's business and on a temporary basis.
"Title Insurance Company" means the company that has or will issue the
-----------------------
title policies with respect to a Leased Property, which company shall be
reasonably acceptable to the Funding Parties.
"Title Policy" is defined in Section 3.1 of the Master Agreement.
------------
"Total Assets" means the total assets of the Consolidated Companies,
------------
determined in accordance with GAAP.
-27-
"Transaction" means all the transactions and activities referred to in
-----------
or contemplated by the Operative Documents.
"Tripartite Agreement/Option Agreement" means collectively the
-------------------------------------
Tripartite Agreement dated November 30, 1990 among Honeywell, Lessor and Florida
Ralco Limited Partnership and the Option and Subordination Agreement dated
November 30, 1990 among Lessor and Florida Ralco Limited Partnership.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from
---
time to time.
"Unfunded Benefit Liabilities" means with respect to any Plan or
----------------------------
Multiemployer Plan at any time, the amount of unfunded benefit liabilities of
such Plan or Multiemployer Plan at such time as determined under ERISA Section
4001(a)(18) which shall not be less than the accumulated benefit obligation, as
disclosed in accordance with FAS 87, over the fair market value of Plan or
Multiemployer Plan assets.
"Voting Stock" shall mean the securities of any class or classes of the
------------
Lessee the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the corporate directors of the Lessee (or
persons performing similar functions).
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
-----------------------
capital stock or other ownership interests of which (except directors'
qualifying shares, or, in the case of any Subsidiary which is not organized or
created under the laws of the United States of America or any state thereof or
the District of Columbia, such nominal ownership interests which are required to
be held by third parties under the laws of the foreign jurisdiction under which
such Subsidiary was incorporated or organized) are at the time directly or
indirectly owned by the Lessee.
"Yield" is defined in Section 2.3 of the Master Agreement.
-----
-28-
================================================================================
MASTER AGREEMENT
(FLORIDA PROPERTY)
Dated as of December 30, 1999
among
EQUIFAX INC.,
as Lessee and Guarantor,
PREFCO VI LIMITED PARTNERSHIP, as Lessor,
ATLANTIC FINANCIAL GROUP, LTD.
and
SUNTRUST BANK, ATLANTA, as Agent and Lender
================================================================================
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS; INTERPRETATION................................................................1
SECTION 2 ACQUISITION; NATURE OF TRANSACTION.........................................................2
SECTION 2.1 Agreement to Acquire, Fund and Lease.....................................................2
SECTION 2.2 Fundings.................................................................................2
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Facility Fee..............................3
SECTION 2.4 Lessee Owner for Tax Purposes............................................................4
SECTION 2.5 Amounts Due Under Lease..................................................................4
SECTION 3 CONDITIONS PRECEDENT; DOCUMENTS............................................................5
SECTION 3.1 Conditions to the Obligations of the Funding Parties on the Closing Date.................5
SECTION 3.2 Additional Conditions for the Closing Date...............................................9
SECTION 3.3 Conditions to the Obligations of Lessee.................................................10
SECTION 3.4 Additional Conditions to the Obligations of the Funding Parties on the Closing Date.....11
SECTION 4 REPRESENTATIONS...........................................................................11
SECTION 4.1 Representations of Lessee...............................................................11
SECTION 4.2 Representations of the Lessor...........................................................18
SECTION 4.3 Representations of each Lender..........................................................20
SECTION 5 COVENANTS OF THE LESSEE...................................................................20
SECTION 5.1 Information.............................................................................21
SECTION 5.2 Inspection of Property, Books and Records...............................................23
SECTION 5.3 Maintenance of Existence................................................................23
SECTION 5.4 Dissolution.............................................................................24
SECTION 5.5 Consolidations, Mergers and Sales of Assets.............................................24
SECTION 5.6 [Intentionally Left Blank]..............................................................24
SECTION 5.7 Compliance with Laws; Payment of Taxes..................................................25
SECTION 5.8 Insurance...............................................................................25
SECTION 5.9 Change in Fiscal Year...................................................................25
SECTION 5.10 Maintenance of Property.................................................................25
SECTION 5.11 Environmental Notices...................................................................25
SECTION 5.12 Environmental Matters...................................................................25
SECTION 5.13 Environmental Release...................................................................26
SECTION 5.14 Heavy Metals............................................................................26
SECTION 5.15 Storage Tanks...........................................................................26
SECTION 5.16 Transactions with Affiliates............................................................26
SECTION 5.17 Restricted Investments..................................................................27
SECTION 5.18 Assignment of Lease and Rents...........................................................27
SECTION 5.19 Debt of Consolidated Subsidiaries.......................................................27
-i-
SECTION 5.20 Negative Pledge.........................................................................27
SECTION 5.21 Interest Coverage Ratio.................................................................29
SECTION 5.22 Ratio of Consolidated Funded Debt to Cash Flow..........................................29
SECTION 5.23 Appraisal...............................................................................30
SECTION 6 TRANSFERS BY LESSOR AND LENDERS...........................................................30
SECTION 6.1 Lessor Transfers........................................................................30
SECTION 6.2 Loan Agreement; Lender Transfers........................................................30
SECTION 6.3 Lessee Competitors......................................................................31
SECTION 6.4 Lessor's Covenants......................................................................31
SECTION 6.5 Existing Property Documents.............................................................32
SECTION 7 INDEMNIFICATION...........................................................................33
SECTION 7.1 General Indemnification.................................................................33
SECTION 7.2 Environmental Indemnity.................................................................35
SECTION 7.3 Proceedings in Respect of Claims........................................................37
SECTION 7.4 General Tax Indemnity...................................................................39
SECTION 7.5 Basis for Determining Interest Rate Inadequate or Unfair................................46
SECTION 7.6 Illegality..............................................................................46
SECTION 7.7 Increased Cost and Reduced Return.......................................................46
SECTION 7.8 Alternative Rate Advances Substituted for Affected LIBOR Advances.......................49
SECTION 7.9 Compensation............................................................................49
SECTION 7.10 Limitation on Certain Payment Obligations...............................................50
SECTION 7.11 End of Term Indemnity...................................................................50
SECTION 8 MISCELLANEOUS.............................................................................51
SECTION 8.1 Survival of Agreements..................................................................51
SECTION 8.2 Notices.................................................................................51
SECTION 8.3 Counterparts............................................................................51
SECTION 8.4 Amendments..............................................................................52
SECTION 8.5 Headings, etc...........................................................................53
SECTION 8.6 Parties in Interest.....................................................................53
SECTION 8.7 GOVERNING LAW...........................................................................53
SECTION 8.8 Expenses................................................................................53
SECTION 8.9 Severability............................................................................53
SECTION 8.10 Liabilities of the Funding Parties......................................................54
SECTION 8.11 Submission to Jurisdiction; Waivers.....................................................54
SECTION 8.12 Liabilities of the Agent................................................................55
SECTION 8.13 Confidentiality.........................................................................55
-ii-
APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 1.1 Leased Property
SCHEDULE 2.2 Commitments
SCHEDULE 4.1(f) ERISA Matters
SCHEDULE 4.1(h) Subsidiaries
SCHEDULE 4.1(n) Environmental Matters
SCHEDULE 4.1(o) Capital Stock
SCHEDULE 5.12 Hazardous Materials
SCHEDULE 5.18 Existing Liens
SCHEDULE 6 Lessee Competitors
SCHEDULE 8.2 Notice Information
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C [INTENTIONALLY OMITTED]
EXHIBIT D Form of Mortgage
EXHIBIT E Form of Compliance Certificate
EXHIBIT F Form of Environmental Audit Reliance Letter
EXHIBIT G Forms of Opinions of Counsel
EXHIBIT H [INTENTIONALLY OMITTED]
EXHIBIT I Form of Payment Date Notice
EXHIBIT J Form of Assignment and Assumption Agreement
-iii-
MASTER AGREEMENT
(FLORIDA PROPERTY)
THIS MASTER AGREEMENT (FLORIDA PROPERTY), dated as of December 30, 1999
(as it may be amended or modified from time to time in accordance with the
provisions hereof, this "Master Agreement"), is among EQUIFAX INC., a Georgia
----------------
corporation ("Lessee"),PREFCO VI LIMITED PARTNERSHIP, a Connecticut limited
------
partnership, as Lessor (the "Lessor"), ATLANTIC FINANCIAL GROUP, LTD., a Texas
------
limited partnership ("AFG"), and SUNTRUST BANK, ATLANTA, a Georgia banking
---
corporation, as Agent (the "Agent") and Lender.
-----
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Master Agreement,
the Lease, the Loan Agreement and the other Operative Documents, (i) AFG
contemplates acquiring the partnership interests in the Lessor and causing the
Lessor to acquire the remainderman interest in the Leased Property, (ii) the
Lessor holds an estate for years in the Leased Property, will acquire the
remainderman interest in the Leased Property and contemplates leasing the Leased
Property to the Lessee under the Lease, (iii) the Lessor wishes to obtain, and
the Lenders are willing to provide, financing to the Lessor, and (vi) the Lessee
is willing to provide its Operative Guaranty to the Funding Parties.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A hereto
----------
for all purposes hereof; and the rules of interpretation set forth in Appendix A
----------
hereto shall apply to this Master Agreement.
SECTION 2
ACQUISITION; NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Fund and Lease. Subject to the terms
------------------------------------
and conditions of this Master Agreement, on the Closing Date (i) AFG agrees to
acquire the partnership interests in the Lessor and to cause the Lessor to
acquire the remainderman interest in the Leased Property, (ii) the Lessor hereby
agrees to lease the Leased Property to the Lessee pursuant to the Lease, and
(iii) the Lessee hereby agrees to lease the Leased Property from the Lessor
pursuant to the Lease.
SECTION 2.2 Fundings.
--------
(a) Funding on Closing Date. Subject to the terms and
-----------------------
conditions of this Master Agreement, on the Closing Date, the Lender shall make
available to the Lessor its Loans with respect to the Leased Property in an
amount equal to the product of such Lender's Commitment Percentage times the
unpaid acquisition, transaction and closing costs incurred by the Lessee through
or to be paid upon the Closing Date, which funds the Lessor shall use, together
with Lessor funds in an amount equal to the product of the Lessor's Commitment
Percentage times the unpaid acquisition, transaction and closing costs incurred
by the Lessor through or to be paid upon the Closing Date, and the Lessor shall
lease the Leased Property to the Lessee pursuant to the Lease.
(b) Aggregate Limits on Funded Amounts. The aggregate amount
----------------------------------
that the Funding Parties shall be committed to provide as Funded Amounts under
this Master Agreement and the Loan Agreement shall not exceed (x) the costs of
purchase of remainderman interest in the Leased Property and the related
closing, transaction and financing costs, or (y) $23,175,000 in the aggregate.
The aggregate amount that any Funding Party shall be committed to fund under
this Master Agreement and the Loan Agreement shall not exceed the lesser of (i)
such Funding Party's Commitment and (ii) such Funding Party's Commitment
Percentage of the aggregate Fundings requested under this Master Agreement.
(c) Notice, Time and Place of Fundings. The Lessee shall give
----------------------------------
the Lessor and the Agent an irrevocable prior written notice not later than
12:00 noon, Atlanta, Georgia, two Business Days prior to the proposed Closing
Date pursuant to a Funding Request in the form of Exhibit A (a "Funding
--------- -------
Request"), specifying the Closing Date, the amount of Funding requested, and the
-------
Rent Period(s) therefor. All documents and instruments required to be delivered
on such Closing Date pursuant to this Master Agreement shall be delivered at the
offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
2
60603, or at such other location as may be determined by the Lessor, the Lessee
and the Agent. Each Funding shall occur on a Business Day. All remittances made
by any Lender and the Lessor for any Funding shall be made in immediately
available funds by wire transfer to or, as is directed by, the Lessee, with
receipt by the Lessee not later than 1:00 p.m., Atlanta, Georgia time, on the
Closing Date, upon satisfaction or waiver of the conditions precedent to such
Funding set forth in Section 3.
---------
(d) Lessee's Deemed Representation for Each Funding. The
-----------------------------------------------
Funding Request by the Lessee shall be deemed a reaffirmation of the Lessee's
indemnity obligations in favor of the Indemnitees under the Operative Documents
and a representation by the Lessee to the Lessor, the Agent and the Lenders that
on the proposed Closing Date (i) the amount of Funding requested represents
amounts owing in respect of the purchase price of the Leased Property and
transaction and closing costs in respect of the Leased Property, (ii) no Event
of Default or Potential Event of Default exists, and (iii) the representations
of the Lessee set forth in Section 4.1 are true and correct in all material
-----------
respects as though made on and as of such Funding Date, except to the extent
such representations or warranties relate solely to an earlier date, in which
case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date.
(e) Notwithstanding anything to the contrary set forth herein
or in the other Operative Documents, the Lender's and the Lessor's commitments
shall be several, and not joint. In no event shall any Funding Party be
obligated to fund an amount in excess of such Funding Party's Commitment
Percentage of any Funding, or to fund amounts in the aggregate in excess of such
Funding Party's Commitment.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Facility
-------------------------------------------------------
Fee.
---
(a) The Lessor's Invested Amount for the Leased Property
outstanding from time to time shall accrue yield ("Yield") at a rate per annum
-----
prior to January 15, 2000 equal to the sum of the Adjusted London Interbank
Offered Rate for 30-day periods plus 1.50% and thereafter equal during each Rent
Period to the sum of the Adjusted London Interbank Offered Rate for such Rent
Period plus 1.50% computed using the actual number of days elapsed and a 360 day
year. If all or a portion of the principal amount of or yield on the Lessor's
Invested Amounts shall not be paid when due (whether at the stated maturity, by
acceleration or
3
otherwise), such overdue amount shall, without limiting the rights of the Lessor
under the Lease, to the maximum extent permitted by law, accrue yield at the
Overdue Rate, in each case from the date of nonpayment until paid in full (as
well after as before judgment).
(b) Each Lender's Funded Amount for the Leased Property
outstanding from time to time shall accrue interest as provided in the Loan
Agreement.
(c) Three Business Days prior to the last day of each Rent
Period, the Lessee shall deliver to the Lessor and the Agent a notice
substantially in the form of Exhibit I (each, a "Payment Date Notice"),
--------- -------------------
appropriately completed, specifying the allocation of the Funded Amounts related
to such Rent Period to the applicable subsequent Rent Periods therefor, provided
--------
that no such allocation shall be in an amount less than $500,000. Each such
Payment Date Notice shall be irrevocable. If no such notice is given, the Funded
Amounts shall have a Rent Period of three (3) months. Notwithstanding the
foregoing, the initial Rent Period will end on January 14, 2000.
SECTION 2.4 Lessee Owner for Tax Purposes. It is the intent of the
-----------------------------
Lessee and the Funding Parties that for federal, state and local tax purposes
(A) the Lessee owns the Leased Property and will be entitled to all tax benefits
ordinarily available to an owner of property similar to the Leased Property, (B)
the Lease will be treated as a financing arrangement, and (C) the Lessor will be
treated as a lender making loans to the Lessee. Nevertheless, the Lessee
acknowledges and agrees that no Funding Party or any other Person has made any
representations or warranties concerning the tax, financial, accounting or legal
characteristics or treatment of the Operative Documents and that the Lessee has
obtained and relied solely upon the advice of its own tax, accounting and legal
advisors concerning the Operative Documents and the accounting, tax, financial
and legal consequences of the transactions contemplated therein.
SECTION 2.5 Amounts Due Under Lease. Anything else herein or elsewhere
-----------------------
to the contrary notwithstanding, it is the intention of the Lessee and the
Funding Parties that: (i) the amount and timing of Basic Rent due and payable
from time to time from the Lessee under the Lease shall be equal to the
aggregate payments due and payable with respect to interest on, and principal
of, the Loans in respect of the Leased Property and Yield on, and principal of,
the Lessor's Invested Amounts, if any, in respect of the Leased Property on each
Payment Date; (ii) if the Lessee
4
elects the Purchase Option with respect to the Leased Property or becomes
obligated to purchase the Leased Property under the Lease, the Funded Amounts in
respect of the Leased Property, all interest and Yield thereon and all other
obligations of the Lessee owing to the Funding Parties in respect of the Leased
Property shall be paid in full by the Lessee; (iii) if the Lessee properly
elects the Remarketing Option, the principal amount of, and accrued interest on,
the A Loans and the A Percentage of the Lessor's Invested Amounts, if any, will
be paid out of the Recourse Deficiency Amount, and the Lessee shall only be
required to pay to the Lenders in respect of the principal amount of the B Loans
and to the Lessor in respect of the B Percentage of the Lessor's Invested
Amounts, if any, the proceeds of the sale of the Leased Property; and (iv) upon
an Event of Default resulting in an acceleration of the Lessee's obligation to
purchase the Leased Property under the Lease, the amounts then due and payable
by the Lessee under the Lease shall include all amounts necessary to pay in full
the Loans in respect of the Leased Property, and accrued interest thereon, the
Lessor's Invested Amounts in respect of the Leased Property, if any, and accrued
Yield thereon and all other obligations of the Lessee owing to the Funding
Parties in respect of the Leased Property.
SECTION 3
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties on the
-----------------------------------------------------------
Closing Date. The obligations of the Lessor and each Lender to carry out their
------------
respective obligations under Section 2 of this Master Agreement to be performed
---------
on the Closing Date shall be subject to the fulfillment to the satisfaction of,
or waiver by, each such party hereto (acting directly or through its counsel) on
or prior to the Closing Date of the following conditions precedent, provided
--------
that the obligations of any Funding Party shall not be subject to any conditions
contained in this Section 3.1 which are required to be performed by such Funding
-----------
Party:
(a) Documents. The following documents shall have been
----------
executed and delivered by the respective parties thereto:
(i) Assignment Agreements, etc. Assignment
---------------------------
Agreements and Remainderman Conveyances duly executed by the
respective assignors shall each have been delivered to AFG and
the Lessor, with copies of each
5
thereof to each Funding Party and shall be satisfactory in
form and substance to AFG and the Agent.
(ii) Mortgage and Assignment of Lease and Rents.
------------------------------------------
Counterparts of the Mortgage substantially in the form of
Exhibit D attached hereto, duly executed by the Lessor and in
---------
recordable form, shall have been delivered to the Agent (which
Mortgage shall secure all of the debt to the Agent); and the
Assignment of Lease and Rents in recordable form, duly
executed by the Lessor, shall have been delivered to the
Agent.
(iii) Survey. The Lessee shall have delivered, or
------
shall have caused to be delivered, to the Lessor and the
Agent, at the Lessee's expense, an accurate survey of the
Leased Property certified to the Lessor and the Agent in a
form satisfactory to the Lessor and the Agent and showing no
state of facts unsatisfactory to the Lessor or the Agent in
their reasonable discretion and prepared within seven months
of the Closing Date by a Person reasonably satisfactory to the
Lessor and the Agent. Such survey shall (1) be acceptable to
the Title Insurance Company for the purpose of providing
extended coverage to the Lessor and a lender's comprehensive
endorsement to the Agent, (2) show no material encroachments
on such Land by structures owned by others, and no material
encroachments from any part of the Leased Property onto any
land owned by others, and (3) disclose no state of facts
reasonably objectionable to the Lessor, the Agent or the Title
Insurance Company, and be reasonably acceptable to each such
Person.
(iv) Title and Title Insurance. On the Closing
-------------------------
Date, the Lessor shall receive from a title insurance company
reasonably acceptable to the Lessor and the Agent an ALTA
Owner's Policy of Title Insurance issued by such title
insurance company and the Agent shall receive from such title
insurance company an ALTA Mortgagee's Policy of Title
Insurance issued by such title insurance company, in each
case, in the amount of $23,175,000.00, reasonably acceptable
in form and substance to the Lessor and the Agent,
respectively (collectively, the "Title Policy"). The Title
------------
Policy shall be dated as of the Closing Date, and, to the
extent permitted under Applicable Law, shall include
6
coverage over such matters as the Lessor or the Agent shall
reasonably request.
(v) Environmental Audit and related Reliance
----------------------------------------
Letter. The Lessor and the Agent shall have received an
------
Environmental Audit for the Leased Property showing that no
Hazardous Materials are present other than Hazardous Materials
used in the ordinary course of business of the Lessee and in
compliance in all material respects with all Environmental
Laws or which is otherwise satisfactory to the Lessor and the
Agent; and the firm that prepared the Environmental Audit for
the Leased Property shall have delivered to the Lessor and the
Agent a letter (substantially in the form of Exhibit F)
---------
stating that the Lessor, the Agent and the Lenders may rely
upon such firm's Environmental Audit of such Land, it being
--------
understood that the Lessor's and the Agent's acceptance of any
----------
such Environmental Audit shall not release or impair the
Lessee's obligations under the Operative Documents with
respect to any environmental liabilities relating to the
Leased Property.
(vi) Officer's Certificate. Each of the Agent and
---------------------
the Lessor shall have received an Officer's Certificate of the
Lessee stating that, to the best of the officer's knowledge,
(A) each and every representation and warranty of the Lessee
contained in the Operative Documents is true and correct in
all material respects on and as of the Closing Date as though
made on and as of the Closing Date, except to the extent such
representations or warranties relate solely to an earlier
date, in which case such representations and warranties were
true and correct in all material respects on and as of such
earlier date; (B) no Event of Default or Potential Event of
Default has occurred and is continuing; (C) each Operative
Document to which the Lessee is a party is in full force and
effect with respect to it; and (D) no event that could
reasonably be expected to have a Material Adverse Effect has
occurred since September 30, 1999.
(vii) UCC Financing Statement; Recording Fees;
----------------------------------------
Transfer Taxes. Each Funding Party shall have received
--------------
satisfactory evidence of (i) the execution and delivery to
Agent of a UCC-1 and UCC-2 financing statement to be filed
with the Secretary of State of the applicable
7
State (or other appropriate filing office) and the county
where the related Land is located respectively, and such other
Uniform Commercial Code financing statements as any Funding
Party deems necessary or desirable in order to protect such
Funding Party's interests and (ii) the payment of all
recording and filing fees and taxes with respect to any
recordings or filings made of the Lease, the Mortgage and the
Assignment of Lease and Rents.
(viii) Opinions. The opinion of Carlton, Fields,
--------
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., local counsel for the
Lessee qualified in Florida, substantially in the form set
forth in Exhibit G-2, and containing such other matters as the
-----------
parties to whom they are addressed shall reasonably request,
shall have been delivered and addressed to each of the Lessor,
the Agent and the Lender.
(b) Litigation. No action or proceeding shall have been
----------
instituted or threatened nor shall any governmental action, suit, proceeding or
investigation be instituted or threatened before any Governmental Authority, nor
shall any order, judgment or decree have been issued or proposed to be issued by
any Governmental Authority, to set aside, restrain, enjoin or prevent the
performance of this Master Agreement or any transaction contemplated hereby or
by any other Operative Document or which is reasonably likely to materially
adversely affect the Leased Property or any transaction contemplated by the
Operative Documents or which could reasonably be expected to result in a
Material Adverse Effect.
(c) Legality. In the opinion of such Funding Party or its
--------
counsel, the transactions contemplated by the Operative Documents shall not
violate any Applicable Law, and no change shall have occurred or been proposed
in Applicable Law that would make it illegal for such Funding Party to
participate in any of the transactions contemplated by the Operative Documents.
(d) No Events. (i) No Event of Default, Potential Event of
---------
Default, Event of Loss or Event of Taking relating to the Leased Property shall
have occurred and be continuing, (ii) no action shall be pending or threatened
by a Governmental Authority to initiate a Condemnation or an Event of Taking,
and (iii) there shall not have occurred any event that could reasonably be
expected to have a Material Adverse Effect since September 30, 1999.
8
(e) Representations. Each representation and warranty of the
---------------
parties hereto or to any other Operative Document contained herein or in any
other Operative Document shall be true and correct in all material respects as
though made on and as of the Closing Date.
(f) Cutoff Date. The Closing Date shall occur on or prior to
-----------
December 31, 1999.
(g) Transaction Expenses. The Lessee shall have paid the
--------------------
Transaction Costs then accrued and invoiced which the Lessee has agreed to pay
pursuant to Section 8.8.
-----------
SECTION 3.2 Additional Conditions for the Closing Date. The obligations
------------------------------------------
of the Lessor and each Lender to carry out their respective obligations under
Section 2 of this Master Agreement to be performed on the initial Closing Date
---------
shall be subject to the satisfaction of, or waiver by, each such party hereto
(acting directly or through its counsel) on or prior to the initial Closing Date
of the following conditions precedent in addition to those set forth in Section
-------
3.1, provided that the obligations of any Funding Party shall not be subject to
--- --------
any conditions contained in this Section 3.2 which are required to be performed
-----------
by such Funding Party:
(i) Operative Guaranty. Counterparts of the
------------------
Operative Guaranty, duly executed by the Lessee, shall have
been delivered to each Funding Party.
(ii) Loan Agreement. Counterparts of the Loan
--------------
Agreement, duly executed by the Lessor, the Agent and the
Lender, shall have been delivered to each of the parties
thereto.
(iii) Master Agreement. Counterparts of this Master
----------------
Agreement, duly executed by the parties hereto, shall have
been delivered to each of the parties hereto.
(iv) Lease. Counterparts of the Lease, duly
-----
executed by the Lessee and the Lessor, shall have been
delivered to each Funding Party and the original, chattel
paper copy of the Lease shall have been delivered to the
Agent.
9
(v) Lessee's Resolutions and Incumbency
-----------------------------------
Certificate, etc. Each of the Agent and the Lessor shall have
----------------
received (x) a certificate of the Secretary or an Assistant
Secretary of the Lessee, attaching and certifying as to (i)
the Board of Directors' or other authorizing resolution duly
authorizing the execution, delivery and performance by it of
each Operative Document to which it is or will be a party,
(ii) the incumbency and signatures of persons authorized to
execute and deliver such documents on its behalf, (iii) its
articles of incorporation, certified as of a recent date by
the Secretary of State of the state of its incorporation and
(iv) its by-laws, and (y) good standing certificates for the
Lessee from the appropriate offices of the States of such
Person's incorporation and principal place of business.
(vi) Opinions of Counsel. The opinions of Long
-------------------
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and of internal counsel to the Lessee,
dated the initial Closing Date, substantially in the form set
forth in Exhibit G-1, and containing such other matters as the
-----------
parties to whom it is addressed shall reasonably request,
shall have been delivered and addressed to each of the Lessor,
the Agent and the Lender.
(vii) Lessor's Incumbency Certificate. If a Loan
-------------------------------
Agreement is then in effect, the Agent shall have received a
certificate of secretary of the Lessor attaching and
certifying as to the incumbency and signatures of persons
authorized to execute and deliver such documents on its
behalf.
SECTION 3.3 Conditions to the Obligations of Lessee. The obligations of
---------------------------------------
the Lessee to lease from the Lessor are subject to the fulfillment on the
related Closing Date to the satisfaction of, or waiver by, the Lessee, of the
following conditions precedent:
(a) General Conditions. The conditions set forth in Sections
------------------ --------
3.1 and 3.2 that require fulfillment by the Lessor or the Lender shall have been
-----------
satisfied.
(b) Legality. In the opinion of the Lessee or its counsel, the
--------
transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in Applicable
Law that would make it
10
illegal for the Lessee to participate in any of the transactions contemplated by
the Operative Documents.
SECTION 3.4 Additional Conditions to the Obligations of the Funding
-------------------------------------------------------
Parties on the Closing Date. The obligations of the Lessor and each Lender to
---------------------------
carry out their respective obligations under Section 2 of this Master Agreement
---------
to be performed on the Closing Date shall be subject to the fulfillment to the
satisfaction of, or waiver by, each such party hereto (acting directly or
through their respective counsel) or prior to the Closing Date of the following
conditions precedent in addition to those set forth in Sections 3.1 and 3.2,
------------ ---
provided that the obligations of any Funding Party shall not be subject to any
--------
conditions contained in this Section 3.4 which are required to be performed by
-----------
such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have
---------------
received from the Lessee the Funding Request therefor pursuant to Section
-------
2.2(d).
------
(b) No Filed Mechanics Lien. As of the Closing Date, and as to
-----------------------
any Funded Amount requested for the Leased Property, no mechanic's liens or
materialman's liens have been filed against the Leased Property that have not
been discharged, bonded over in a manner reasonably satisfactory to the Agent or
insured over by the Title Insurance Company.
SECTION 4
REPRESENTATIONS
SECTION 4.1 Representations of Lessee. Effective as of the date of
-------------------------
execution hereof and as of the Closing Date, the Lessee represents and warrants
to each of the other parties hereto as follows:
(a) Corporate Existence and Power. The Lessee is a corporation
-----------------------------
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where the failure to qualify would have a Material Adverse
Effect, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
(b) Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by the Lessee of this
-------------
Agreement and the other Operative Documents to
11
which it is a party (i) are within the Lessee's corporate powers, (ii) have been
duly authorized by all necessary corporate action, (iii) require no action by or
in respect of or filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Lessee or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Lessee or any of the Subsidiaries which contravention or
default is reasonably likely to have a Material Adverse Effect, and (v) do not
result in the creation or imposition of any Lien other than the Liens created by
the Operative Documents on any asset of the Lessee or any of the Subsidiaries.
(c) Binding Effect. This Agreement and each other Operative
--------------
Document to which the Lessee is a party each constitute a valid and binding
agreement of the Lessee, enforceable in accordance with its terms, provided that
--------
the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
(d) Financial Information. (i) The consolidated balance sheet
---------------------
of the Lessee and its Consolidated Subsidiaries as of December 31, 1998 and the
related consolidated statements of income, shareholders' equity and cash flows
for the Fiscal Year then ended, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., copies of
which have been delivered to each of the Funding Parties, and the unaudited
consolidated financial statements of the Lessee for the interim period ended
September 30, 1999, copies of which have been delivered to each of the Funding
Parties, fairly present, in conformity with GAAP (except for year-end
adjustments and the absence of footnotes in the case of interim statements), the
consolidated financial position of the Lessee and its Consolidated Subsidiaries
as of such dates and their consolidated results of operations and cash flows for
such periods stated.
(ii) Since September 30, 1999 there has been no
event, act, condition or occurrence having a Material Adverse Effect.
(e) No Litigation. There is no action, suit or proceeding
-------------
pending against or affecting the Lessee or any of the Subsidiaries before any
court or arbitrator or any governmental body, agency or official which could
reasonably be expected to have a Material Adverse Effect.
12
(f) Compliance with ERISA. Except as set forth in Schedule
--------------------- --------
4.1(f) as the same may be revised from time to time, (i) the Lessee and each
------
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Tax Code with respect to each Plan
and are in compliance in all material respects with the presently applicable
provisions of ERISA and the Tax Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA; and (ii) neither the Lessee nor any
member of the Controlled Group is or ever has been obligated to any material
contribution to any Multiemployer Plan.
(g) Compliance with Laws; Payment of Taxes. The Lessee and
--------------------------------------
each Consolidated Subsidiary is in compliance with all applicable laws,
regulations and similar requirements of governmental authorities the failure to
comply with which would result in a Material Adverse Effect, except where such
compliance is being contested in good faith through appropriate proceedings.
There have been filed on behalf of the Lessee and each Consolidated Subsidiary
all Federal, state and local income, excise, property and other material tax
returns which are required to be filed by them (or appropriate extensions of
such filings have been obtained) and all taxes due pursuant to such returns or
pursuant to any assessment received by or on behalf of the Lessee or any
Consolidated Subsidiary (which are not being contested in good faith by such
Person) have been paid. The charges, accruals and reserves on the books of the
Lessee and each Consolidated Subsidiary in respect of taxes or other
governmental charges are, in the opinion of the Lessee adequate. United States
federal income tax returns (where applicable) of the Lessee and each
Consolidated Subsidiary have been examined and closed through the Fiscal Year
ended December 31, 1993.
(h) Subsidiaries; Identification of Consolidated Subsidiaries.
---------------------------------------------------------
Each of the Consolidated Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to transact business in every jurisdiction
where the failure to so qualify would have a Material Adverse Effect, and has
all corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted in each case where
the failure to have the same would have a Material Adverse Effect. As of the
initial Closing Date, the Lessee has no Subsidiaries except for those
Subsidiaries listed on Schedule 4.1(h) which accurately sets forth each such
---------------
Subsidiary's complete name and jurisdiction of incorporation, and which
identifies Consolidated Subsidiaries as being such. After the initial Closing
Date, in the event that
13
Lessee's Subsidiaries are no longer published in the Lessee's annual reports
filed with the Securities and Exchange Commission, Schedule 4.1(h) shall be
---------------
supplemented from time to time by the Lessee, with copies to the Funding
Parties, to identify any additional Subsidiary and any Subsidiary which has
become a Consolidated Subsidiary and which has not previously been shown as such
on such annual reports or on Schedule 4.1(h) as previously supplemented.
---------------
(i) Investment Company Act. Neither the Lessee nor any
----------------------
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(j) Public Utility Holding Company Act. Neither the Lessee nor
----------------------------------
any Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
(k) Ownership of Property; Liens. The Lessee and each
----------------------------
Consolidated Subsidiary has title to its properties sufficient for the conduct
of its business, and none of such property is subject to any Lien except as
permitted in Section 5.18.
------------
(l) No Default. Neither the Lessee nor any Consolidated
----------
Subsidiary is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could reasonably be expected to have or cause a Material Adverse
Effect. No Event of Default or Potential Event of Default has occurred and is
continuing.
(m) Full Disclosure. All information heretofore furnished by
---------------
the Lessee to any Funding Party (including, without limitation, information
contained in the Lessee's form 10-K annual report for Fiscal Year 1996 and form
10-Q quarterly report for the second Fiscal Quarter of 1997) for purposes of or
in connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Lessee to any Funding Party will
be, true, accurate and complete in every material respect or based on reasonable
estimates on the date as of which such information is stated or certified.
(n) Environmental Matters. (i) Neither the Lessee nor any
---------------------
Consolidated Subsidiary is subject to any Environmental Liability which could
reasonably be expected to have or cause a
14
Material Adverse Effect and neither the Lessee nor any Consolidated Subsidiary
has been designated as a potentially responsible party under CERCLA or under any
state statute similar to CERCLA where the probable resulting liability would
have a Material Adverse Effect. Except as disclosed on Schedule 4.1(n), as
---------------
revised from time to time, to the knowledge of the Lessee, none of the
Properties has been identified on any current or proposed (1) National
Priorities List under 40 C.F.R. ss. 300, (2) CERCLIS list or (3) any list
arising from a state statute similar to CERCLA, in each case under circumstances
which have or could reasonably be expected to have a Material Adverse Effect.
(ii) Except as disclosed on Schedule 4.1(n), as
---------------
revised from time to time, to the knowledge of the Lessee, no Hazardous
Materials have been or are being used, produced, manufactured, processed,
treated, recycled, generated, stored, disposed of, managed or otherwise handled
at, or shipped or transported to or from the Properties or are otherwise present
at, on, in or under the Properties, except for Hazardous Materials, such as
cleaning solvents, pesticides and other materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, managed, or
otherwise handled in minimal amounts in the ordinary course of business in
compliance with all applicable Environmental Requirements, except in such
instances where such failure of compliance would not have a Material Adverse
Effect.
(iii) Except as disclosed on Schedule 4.1(n), as
---------------
revised from time to time, the Lessee, and each of the Subsidiaries has procured
all Environmental Authorizations necessary for the conduct of its business, and
is in compliance with all Environmental Requirements in connection with the
operation of the Properties and the Lessee's and each Consolidated Subsidiary's
respective businesses, except in such instances where such failure of compliance
would not have a Material Adverse Effect.
(o) Capital Stock. All Capital Stock, debentures, bonds, notes
-------------
and all other securities of the Lessee and each Consolidated Subsidiary
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. Except as set forth in
Schedule 4.1(o), as revised from time to time, the issued shares of Capital
---------------
Stock of the Lessee's Wholly Owned Subsidiaries which are owned by the Lessee
are owned by the Lessee free and clear of any Lien or adverse claim and at least
a
15
majority of the issued shares of capital stock of each of the Lessee's other
Subsidiaries (other than Wholly Owned Subsidiaries) is owned by the Lessee free
and clear of any Lien or adverse claim.
(p) Margin Stock. Neither the Lessee nor any Subsidiary is
------------
engaged principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any
Funded Amount will be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation U or Regulation X.
(q) Insolvency. After giving effect to the execution and
----------
delivery of the Operative Documents and the funding of the Funded Amounts under
the Operative Agreement: (i) the Lessee will not (x) be "insolvent," within the
meaning of such term as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of
the "Bankruptcy Code", or Section 2 of either the "UFTA" or the "UFCA", or as
defined or used in any "Other Applicable Law" (as those terms are defined
below), or (y) be unable to pay its debts generally as such debts become due
within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 6 of the UFCA, or (z) have an unreasonably small capital to engage in
any business or transaction, whether current or contemplated, within the meaning
of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the
UFCA; and (ii) the obligations of the Lessee under the Operative Documents will
not be rendered avoidable under any Other Applicable Law. For purposes of this
Section 4(q), "Bankruptcy Code" means Title 11 of the United States Code, "UFTA"
means the Uniform Fraudulent Transfer Act, "UFCA" means the Uniform Fraudulent
Conveyance Act, and "Other Applicable Law" means any other applicable state law
pertaining to fraudulent transfers or acts voidable by creditors, in each case
as such law may be amended from time to time.
(r) Insurance. The Lessee and each Consolidated Subsidiary has
---------
(either in the name of the Lessee or in such Consolidated Subsidiary's own
name), with financially sound and reputable insurance companies, insurance on
all its property in comparable amounts and against comparable risks as are
usually insured against in the same general area by companies of established
repute engaged in the same or similar business.
(s) Rights in Respect of the Leased Property. The Lessee is
----------------------------------------
not a party to any contract or agreement to sell any interest in the Leased
Property or any part thereof, other than pursuant to the Operative Documents or
the Existing Lease
16
(t) Hazardous Materials. (i) To the best knowledge of the
-------------------
Lessee, on the Closing Date, except as disclosed in the Environmental Audit,
there are no Hazardous Materials present at, upon, under or within the Leased
Property or released or transported to or from the Leased Property (except in
compliance in all material respects with all applicable Environmental Laws).
(ii) On the Closing Date, no Governmental Actions
have been taken or are in process or have been threatened, which could
reasonably be expected to subject the Leased Property, any Lender or the Lessor
with respect to the Leased Property to any Claims or Liens under any
Environmental Law which would have a materially adverse effect on the Lessee,
the Lessor, any Lender or the Leased Property.
(iii) The Lessee has, or will obtain on or before
the date required by applicable Environmental Laws, all Environmental Permits
necessary to operate the Leased Property in accordance with applicable
Environmental Laws and is complying with and has at all times complied with all
such Environmental Permits, except to the extent the failure to obtain such
Environmental Permits or to so comply would not have a Material Adverse Effect.
(iv) No notice, notification, demand, request for
information, citations, summons, complaint or order has been issued or filed to
or with respect to the Lessee, no penalty has been assessed on the Lessee and no
investigation or review is pending or, to its best knowledge, threatened by any
Environmental Authority or other Person in each case relating to the Leased
Property with respect to any alleged material violation or liability of the
Lessee under any Environmental Law. No material notice, notification, demand,
request for information, citations, summons, complaint or order has been issued
or filed to or with respect to any other Person, no material penalty has been
assessed on any other Person and no investigation or review is pending or, to
its best knowledge, threatened by any Environmental Authority or other Person
relating to the Leased Property with respect to any alleged material violation
or liability under any Environmental Law by any other Person.
(v) Except as disclosed in the Environmental
Audit, the Leased Property and each portion thereof are presently in compliance
in all material respects with all Environmental Laws, and there are no present
or, to the Lessee's best
17
knowledge, past facts, circumstances, activities, events, conditions or
occurrences regarding the Leased Property (including without limitation the
release or presence of Hazardous Materials) that could reasonably be anticipated
to (A) form the basis of a material Claim against the Leased Property, any
Funding Party or the Lessee, (B) cause the Leased Property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
applicable Environmental Law, (C) require the filing or recording of any notice
or restriction relating to the presence of Hazardous Materials in the real
estate records in the county or other appropriate municipality in which the
Leased Property is located, or (D) prevent or interfere with the continued
operation and maintenance of the Leased Property as contemplated by the
Operative Documents.
(vi) Notwithstanding any provision herein or in the
Lease to the contrary, Lessor and Agent agree that it is not, and will not
constitute, a violation of any representation, warranty or covenant of the
Lessee made in this Agreement, the Lease or any other Operative Document, if
Hazardous Materials shall be present or handled, generated, stored, processed or
disposed of on, or released or discharged from, the Leased Property, to the
extent such Hazardous Materials are used by or on behalf of Lessee in the
ordinary course of Lessee's business and in material compliance with all
Environmental Laws.
(u) Leased Property. The present condition and use of the
---------------
Leased Property conforms in all material respects with all conditions or
requirements of all existing permits and approvals issued with respect to the
Leased Property, and the present use of the Leased Property and the Lessee's
future intended use of the Leased Property under the Lease does not, in any
material respect, violate any Applicable Law. No material notices, complaints or
orders of violation or non-compliance have been issued or, to the Lessee's best
knowledge, threatened or contemplated by any Governmental Authority with respect
to the Leased Property or any present or intended future use thereof. All
agreements, easements and other rights, public or private, which are necessary
to permit the lawful use and operation of the Leased Property as the Lessee
intends to use the Leased Property under the Lease and which are necessary to
permit the lawful intended use and operation of all presently intended
utilities, driveways, roads and other means of egress and ingress to and from
the same have been, or to the Lessee's best knowledge will be, obtained and are
in full force and effect, and the Lessee has no knowledge of any pending
modification or cancellation of any
18
of the same. The Lessee does not make any representation hereby with respect to
compliance with the Tripartite Agreement/Option Agreement.
SECTION 4.2 Representations of the Lessor. Effective as of the
-----------------------------
date of execution hereof and as of the Closing Date, the Lessor represents and
warrants to the Agent, the Lender and the Lessee as follows:
(a) Securities Act. The interest being acquired or to be
--------------
acquired by the Lessor in the Leased Property is being acquired for its own
account, without any view to the distribution thereof or any interest therein,
provided that the Lessor shall be entitled to assign, convey or transfer its
--------
interest in accordance with Section 6.1.
-----------
(b) Employee Benefit Plans. The Lessor is not and will not be
----------------------
making its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Tax Code.
(c) Brokers, Finders. The Lessor has not retained or employed
----------------
any broker, finder or financial adviser in connection with this Master Agreement
as to which any fees or commissions described in Section 7.1(f) have been
--------------
incurred.
(d) Due Organization, etc. The Lessor is a limited partnership
---------------------
duly organized and validly existing in good standing under the laws of
Connecticut and qualified as a foreign partnership in good standing under the
laws of Florida and has full power, authority and legal right to execute,
deliver and perform its obligations under the Lease, this Master Agreement and
each other Operative Document to which it is or will be a party.
(e) Due Authorization; Enforceability, etc. This Master
--------------------------------------
Agreement and each other Operative Document to which the Lessor is or will be a
party have been or will be duly authorized, executed and delivered by or on
behalf of the Lessor and are, or upon execution and delivery will be, legal,
valid and binding obligations of the Lessor enforceable against it in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and by general equitable principles.
19
(f) No Conflict. The execution and delivery by the Lessor of
-----------
the Lease, this Master Agreement and each other Operative Document to which the
Lessor is or will be a party, are not or will not be, and the performance by the
Lessor of its obligations under each will not be, inconsistent with its
Partnership Agreement, do not and will not contravene any Applicable Law and do
not and will not contravene any provision of, or constitute a default under, any
Contractual Obligation of Lessor, and the Lessor possesses all requisite
regulatory authority to undertake and perform its obligations under the
Operative Documents.
(g) Litigation. There are no pending or, to the knowledge of
----------
the Lessor, threatened actions or proceedings against the Lessor before any
court, arbitrator or administrative agency that would have a material adverse
effect upon the ability of the Lessor to perform its obligations under this
Master Agreement or any other Operative Documents to which it is or will be a
party.
(h) Lessor Liens. No Lessor Liens (other than those created by
------------
the Operative Documents) exist on the Closing Date on the Leased Property, or
any portion thereof, and the execution, delivery and performance by the Lessor
of this Master Agreement or any other Operative Document to which it is or will
be a party will not subject the Leased Property, or any portion thereof, to any
Lessor Liens (other than those created by the Operative Documents).
(i) Partners. The general partner of the Lessor is AFT Prefco
--------
GP, LLC and the limited partner of the Lessor is AFG Prefco, LLC.
SECTION 4.3 Representations of each Lender. As of the Closing
------------------------------
Date, the Lender represents and warrants to the Lessor and to the Lessee as
follows:
(a) Securities Act. The interest being acquired or to be
--------------
acquired by the Lender in the Funded Amounts is being acquired for its own
account, without any view to the distribution thereof or any interest therein,
provided that the Lender shall be entitled to assign, convey or transfer its
--------
interest in accordance with Section 6.2. The Lender is an accredited investor as
-----------
that term is defined in Rule 501(a) under the Securities Act.
20
(b) Employee Benefit Plans. The Lender is not and will not be
----------------------
making its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Tax Code.
(c) Brokers, Finders. The Lender has not retained or employed
----------------
any broker, finder or financial adviser in connection with this Master Agreement
as to which any fees or commissions described in Section 7.1(f) have been
--------------
incurred.
SECTION 5
COVENANTS OF THE LESSEE
So long as any Commitment remains in effect hereunder or any
Funded Amount shall remain outstanding, the Lessee will (unless waived in
writing by the Required Funding Parties) perform the following covenants (it
being understood and agreed that Sections 5.19 and 5.20 and any related defined
------------- ----
terms used therein shall be deemed to be amended automatically from time to time
in a manner corresponding to any amendment effected from time to time to the
corresponding provisions and defined terms in the Credit Agreement, provided
that SunTrust Bank, Atlanta has, in its capacity as a lender under the Credit
Agreement, consented to such amendment):
SECTION 5.1 Information. The Lessee will deliver to each of the Funding
-----------
Parties:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the Lessee and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, shareholders' equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or other
independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to the
Required Funding Parties;
(b) as soon as available and in any event within 60 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Lessee and its Consolidated Subsidiaries as of
the end of such Fiscal Quarter and the related statement of income and statement
of cash flows
21
for such Fiscal Quarter and for the portion of the Fiscal Year ended at the end
of such Fiscal Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the corresponding portion of
the previous Fiscal Year, all certified (subject to normal year-end adjustments)
as to fairness of presentation, GAAP and consistency by an Authorized Officer or
the chief accounting officer of the Lessee;
(c) within 10 Domestic Business Days after the delivery of
each set of financial statements referred to in paragraph (a) above and
simultaneously with the delivery of each set of financial statements referred to
in paragraph (b) above, a certificate, substantially in the form of Exhibit E (a
---------
"Compliance Certificate"), of an Authorized Officer or the chief accounting
----------------------
officer of the Lessee (i) setting forth in reasonable detail the calculations
required to establish whether the Lessee was in compliance with the requirements
of Sections 5.15 through 5.20, inclusive, on the date of such financial
------------- ----
statements and (ii) stating whether any Event of Default or Potential Event of
Default exists on the date of such certificate and, if any Event of Default or
Potential Event of Default then exists, setting forth the details thereof and
the action which the Lessee is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual
financial statements referred to in paragraph (a) above, a statement of the firm
of independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe that
any Event of Default or Potential Event of Default existed on the date of such
financial statements;
(e) within 5 Domestic Business Days after a Principal Officer
becomes aware of the occurrence of any Event of Default or Potential Event of
Default, a certificate of an Authorized Officer or the chief accounting officer
of the Lessee setting forth the details thereof and the action which the Lessee
is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Lessee generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and
22
annual, quarterly or monthly reports which the Lessee shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which could reasonably be
expected to constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice, provided, however, that each of the foregoing notices shall not be
required to be given unless the reportable event, withdrawal liability, plan
termination, or trustee appointment involved could reasonably be expected to
give rise to a liability of more than $1,000,000 on the part of the Lessee or
any of its Subsidiaries; and
(i) from time to time such additional information regarding
the financial position or business of the Lessee and the Subsidiaries as the
Agent, at the request of any Funding Party, may reasonably request.
SECTION 5.2 Inspection of Property, Books and Records.
-----------------------------------------
(a) The Lessee will keep, and will cause each Consolidated
Subsidiary to keep, proper books of record and account in which full, true and
correct entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its business and activities.
(b) Prior to the occurrence of an Event of Default or a
Potential Event of Default, the Lessee will, and the Lessee will cause each
Consolidated Subsidiary to, permit representatives of any Funding Party at such
Funding Party's expense after reasonable notice during regular business hours
(which date of visit shall be mutually agreed upon but shall not be later than 2
weeks after the date requested by such Funding Party) to visit and inspect, in
the company of any of the Principal Officers or their designees and their
independent public accountants, any of their respective properties, and to
examine and make abstracts from any of their respective books and records and to
discuss with any of the Principal Officers the
23
respective affairs, finances and accounts of the Lessee and its Subsidiaries.
(c) After the occurrence of an Event of Default or a Potential
Event of Default, the Lessee will permit, and the Lessee will cause each
Consolidated Subsidiary to permit, at the Lessee's expense, representatives of
any Funding Party to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants.
The Lessee agrees to cooperate and assist in such visits and
inspections set forth in paragraphs (b) and (c) above in this Section, in each
case at such reasonable times and as often as may reasonably be desired.
Provided, however, (i) in no event shall any Funding Party have access to (1)
information prohibited by law or (2) Restricted Information, (ii) Lessee may
designate an employee to accompany any Funding Party, and (iii) in the event any
Funding Party desires to inspect confidential matters (which matters shall in no
event include financial information and data of the Lessee or its Subsidiaries
or other information the Funding Parties may require in order to determine
compliance with this Agreement) under this Section, such Funding Party shall
execute a confidentiality agreement relating to such matters, which agreement
shall contain reasonable terms acceptable to such Funding Party and its counsel.
SECTION 5.3 Maintenance of Existence. The Lessee shall and shall cause
------------------------
each Consolidated Subsidiary to, maintain its corporate existence (except for
any corporate reorganization, dissolutions or liquidations expressly permitted
by Section 5.4 or 5.5 hereof) and to carry on its business in substantially the
----------- ---
same manner and in substantially the same field as such business is now carried
on and maintained.
SECTION 5.4 Dissolution. Neither the Lessee nor any Consolidated
-----------
Subsidiaries shall (a) suffer or permit dissolution or liquidation either in
whole or in part, or (b) redeem or retire any shares of its own stock or that of
any Consolidated Subsidiary, except (i) through corporate reorganization to the
extent permitted by Section 5.5, or (ii) solely in accordance with its policies
-----------
and programs approved by the Lessee's Board of Directors from time to time, but
in no event during the existence of an uncured Event of Default, whether caused
by such dissolution, liquidation or otherwise.
24
SECTION 5.5 Consolidations, Mergers and Sales of Assets. The Lessee
-------------------------------------------
will not, and the Lessee will not permit any Consolidated Subsidiary to,
consolidate or merge with or into, or sell, lease or otherwise transfer all or
any substantial part of its assets to, any other Person, or discontinue or
eliminate any Subsidiary or division, provided that (a) the Lessee and any
--------
Consolidated Subsidiary may merge with another Person (provided that in the
event of such merger involving the Lessee, the Lessee is the surviving Person)
if (i) such Person was organized under the laws of the United States of America
or one of its states, (ii) the Lessee or a Consolidated Subsidiary is the
corporation surviving such merger and (iii) immediately after giving effect to
such merger, no Event of Default or Potential Event of Default shall have
occurred and be continuing, (b) Subsidiaries may merge with one another or with
the Lessee or with any other Person which will become a Subsidiary as a result
of such merger, and (c) the foregoing limitation on the sale, lease or other
transfer of assets and on the discontinuation or elimination of a Subsidiary or
division shall not prohibit, (i) during any Fiscal Quarter, a transfer of assets
or the discontinuance or elimination of a Subsidiary or division (in a single
transaction or in a series of related transactions) unless the aggregate assets
to be so transferred or utilized in a Subsidiary or division to be so
discontinued, when combined with all other assets transferred, and all other
assets utilized in all other Subsidiaries or divisions discontinued, in any
Fiscal Year contributed more than 17.5% of Consolidated Operating Profits for
the immediately preceding Fiscal Year, or (ii) sales of accounts receivable in
connection with an accounts receivable securitization program in which the
aggregate principal amount invested by the purchaser of such receivables does
not exceed $150,000,000 at any one time.
SECTION 5.6 [Intentionally Left Blank]
SECTION 5.7 Compliance with Laws; Payment of Taxes. The Lessee will,
--------------------------------------
and will cause each of the Subsidiaries and each member of the Controlled Group
to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to PBGC), except (i) where the necessity of such compliance is being
contested in good faith through appropriate proceedings, or (ii) where the
failure to do so would not have a Material Adverse Effect. The Lessee will, and
will cause each of the Subsidiaries to, pay prior to the time the same become
delinquent all taxes, assessments, governmental charges, claims
25
for labor, supplies, rent and other obligations which, if unpaid, might become a
lien against the property of the Lessee or any Consolidated Subsidiary, except
(i) liabilities being contested in good faith and against which, if requested by
the Agent, the Lessee will set up reserves in accordance with GAAP, or (ii)
where the failure to do so would not have a Material Adverse Effect.
SECTION 5.8 Insurance. The Lessee will maintain, and the Lessee will
---------
cause each of the Subsidiaries to maintain (either in the name of the Lessee or
in such Consolidated Subsidiary's own name), with financially sound and
reputable insurance companies, insurance on all its property material to its
business in comparable amounts and against such risks as are usually insured
against in the same general area by companies of established repute engaged in
the same or similar business.
SECTION 5.9 Change in Fiscal Year. The Lessee will not change its
---------------------
Fiscal Year without the consent of the Required Funding Parties.
SECTION 5.10 Maintenance of Property. The Lessee shall, and the Lessee
-----------------------
shall cause each Consolidated Subsidiary to, maintain all of its properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted, except where the failure to do so would not have a Material Adverse
Effect.
SECTION 5.11 Environmental Notices. Upon becoming aware of such
---------------------
matters, the Lessee shall furnish to the Funding Parties and the Agent prompt
written notice of all Environmental Liabilities, pending or anticipated
Environmental Proceedings, Environmental Notices, Environmental Judgments and
Orders, and Environmental Releases at, on, in, under or in any way affecting the
Properties or any adjacent property, and all facts, events, or conditions that
could lead to any of the foregoing, in each case if the same would have a
Material Adverse Effect.
SECTION 5.12 Environmental Matters. Except as set forth in Schedule
--------------------- --------
5.12, as revised from time to time, neither the Lessee nor any Consolidated
----
Subsidiary will, and the Lessee will not permit any Third Party to, use,
produce, manufacture, process, treat, recycle, generate, store, dispose of,
manage at, or otherwise handle, or ship or transport to or from the Properties
any Hazardous Materials, except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used, produced, manufactured,
processed, treated, recycled, generated,
26
stored, disposed, managed, or otherwise handled in minimal amounts in the
ordinary course of business in compliance with all applicable Environmental
Requirements in each case where the failure to comply would not have a Material
Adverse Effect.
SECTION 5.13 Environmental Release. The Lessee agrees that upon the
---------------------
occurrence of an Environmental Release at or on any of the Properties owned by
it or any Consolidated Subsidiary, it will take appropriate action required by
applicable law, except in such cases where the failure to take such action would
not have a Material Adverse Effect.
SECTION 5.14 Heavy Metals. Historic soil and groundwater sampling, as
------------
well as recent sampling by Allied Environmental, has disclosed the presence of
heavy metals and other constituents in the groundwater at the property,
including thallium, lead, arsenic, gross alpha and antimony. Lessee covenants
and agrees to work with Florida DEP, and to promptly conduct such sampling,
remediation and/or other actions required to obtain a letter from Florida DEP
indicating that no further action is required with regard to the discovered
constituents, in a form reasonably satisfactory to Agent and Lessor, all at no
cost to Agent, Lessor or the Lenders. These provisions will be in addition to,
and not in limitation of, any other rights of Agent, the Lenders or Lessor.
SECTION 5.15 Storage Tanks, Allied Environmental has discovered
-------------
petroleum related contamination in the vicinity of an above-ground storage tank
on the Leased Property. Lessee covenants to promptly notify the appropriate
agency and promptly conduct such investigation and remediation at no cost to
Agent, the Lenders or Lessor. Remediation will be complete upon receipt by Agent
of a letter from the environmental agency with jurisdiction indicating that no
further investigation remediation, or other action is necessary with regard to
such contamination, in a form reasonably satisfactory to Agent. This provision
shall be in addition to, and not in limitation of, any other rights of Agent,
the Lenders or Lessor.
SECTION 5.16 Transactions with Affiliates. Neither the Lessee nor any
----------------------------
of its Consolidated Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of the Lessee or such Subsidiary (which Affiliate
is not the Lessee or a Wholly Owned Subsidiary), except as permitted by law and
in the ordinary course of business and pursuant to reasonable terms which are no
less favorable to the Lessee or such Subsidiary than
27
would be obtained in a comparable arm's length transaction with a Person which
is not an Affiliate.
SECTION 5.17 Restricted Investments. The Lessee will not, and will not
----------------------
permit any of its Subsidiaries to, make any Restricted Investments unless, after
giving effect thereto, the aggregate amount of all such Restricted Investments
outstanding at any time does not exceed 20% of the Lessee's Consolidated Total
Assets; provided that (i) the foregoing shall be tested as at the end of each
--------
Fiscal Quarter, and (ii) after giving effect to the making of any Restricted
Investments permitted by this Section, the Lessee will be in full compliance
with all the provisions of the Operative Documents.
SECTION 5.18 Assignment of Lease and Rents. The Lessee shall execute
-----------------------------
and deliver a consent to Assignment of Lease and Rents with respect to the
Leased Property existing if and when the Loan Agreement is entered into.
SECTION 5.19 Debt of Consolidated Subsidiaries. The Lessee shall not
---------------------------------
permit any Consolidated Subsidiary to incur or permit to exist any Debt not in
existence on the Initial Closing Date, and extensions or renewals thereof, other
than (i) the obligations to the Funding Parties under this Agreement; (ii) Debt
of the types described in clause (vii) of the definition of Debt which is
incurred in the ordinary course of business in connection with (1) the sale or
purchase of goods, or (2) to assure performance of any Subsidiaries' service
contracts, operating leases, obligations to a utility or a governmental entity,
or worker's compensation obligations; (iii) Debt (including Debt secured by
Liens permitted by Section 5.18) not exceeding an aggregate amount outstanding
------------
at any time equal to 20% of Consolidated Net Tangible Assets; and (iv) the
obligations to the banks under the Credit Agreement or any refinancing thereof.
Any corporation which becomes a Consolidated Subsidiary after the date
hereof shall for all purposes of this Section be deemed to have created, assumed
or incurred at the time it becomes a Consolidated Subsidiary all Debt of such
corporation existing immediately after it becomes a Consolidated Subsidiary.
SECTION 5.20 Negative Pledge. The Lessee shall not, and the Lessee
---------------
shall not permit any Consolidated Subsidiary to, create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by it, except:
28
(a) Liens existing on the date of this Agreement and disclosed
on Schedule 5.18(a);
----------------
(b) any Lien existing on any specific fixed asset of any
corporation at the time such corporation becomes a Consolidated Subsidiary and
not created in contemplation of such event;
(c) any Lien on any specific fixed asset securing Debt
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring or constructing such asset, provided that (i) such Lien attaches to
--------
such asset concurrently with or within 18 months after the acquisition or
completion of construction thereof, and (ii) such acquisition is not in
connection with the purchase of all or substantially all of the assets of a
Person;
(d) any Lien on any specific fixed asset of any corporation
existing at the time such corporation is merged or consolidated with or into the
Lessee or a Consolidated Subsidiary and not created in contemplation of such
event;
(e) any Lien existing on any specific fixed asset prior to the
acquisition thereof by the Lessee or a Consolidated Subsidiary and not created
in contemplation of such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the Lessee
or another Wholly Owned Subsidiary;
(g) Liens on and transfers of accounts receivable in
connection with an accounts receivable securitization program in which the
aggregate principal amount invested by the purchaser of such receivables does
not exceed $150,000,000 at any one time;
(h) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing paragraphs of this Section, provided that (i) such Debt is not secured
--------
by any additional assets, and (ii) the amount of such Debt secured by any such
Lien is not increased;
(i) any Lien on Margin Stock (subject to the limitation of
Debt secured thereby set forth in Section 5.18(p) below);
---------------
(j) subject to Article XII(n) of the Lease, Liens for taxes
(including ad valorem taxes), assessments or other
29
governmental charges or levies not yet due or which are being actively contested
in good faith by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the Lessee or Subsidiary, as the case may
be, in accordance with GAAP;
(k) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created in
the ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings, if adequate reserves with
respect thereto are maintained on the books of the Lessee or such Subsidiary, as
the case may be, in accordance with GAAP;
(l) Liens incurred or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment insurance and
other types of social security benefits or obligations or to secure performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations, provided that such Liens were not incurred in connection with the
incurrence of any Debt;
(m) zoning ordinances, easements, licenses, restrictions on
the use of real property and minor irregularities in title thereto which do not
materially impair the use of such property and the operation of the business of
the Lessee or such Subsidiary (as the case may be) thereon or the value of such
property;
(n) inchoate Liens arising under ERISA to secure current
service pension liabilities as they are incurred under the provisions of Plans
from time to time in effect;
(o) rights reserved to or invested in any municipality or
governmental, statutory or public authority to control or regulate any property
of the Lessee or such Subsidiary, as the case may be, or to use such property in
a manner which does not materially impair the use of such property for the
purposes of which it is held by the Lessee or such Subsidiary, as the case may
be; and
(p) Liens not otherwise permitted by the foregoing paragraphs
of this Section securing Debt (other than indebtedness in respect of Funded
Amounts) in an aggregate principal amount at any time outstanding which does not
exceed 20% of Consolidated Net Tangible Assets.
30
SECTION 5.21 Interest Coverage Ratio. At the end of each Fiscal Quarter
-----------------------
commencing with the Fiscal Quarter ending September 30, 1997, the Interest
Coverage Ratio shall be greater than or equal to 3.0 to 1.0, determined in
accordance with GAAP.
SECTION 5.22 Ratio of Consolidated Funded Debt to Cash Flow. At the end
----------------------------------------------
of each Fiscal Quarter, commencing with the Fiscal Quarter ending September 30,
1997, the ratio of Consolidated Funded Debt to Cash Flow for the Fiscal Quarter
just ended and the immediately preceding 3 Fiscal Quarters shall not exceed 4.0
to 1.0, determined in accordance with GAAP.
SECTION 5.23 Appraisal. The Lessee shall pay when requested by the
---------
Agent the cost of a report of the Appraiser (an "Appraisal"), which report is
---------
being obtained by the Agent.
SECTION 5.24 Insurance. No later than January 30, 2000 the Lessor and
---------
the Agent shall have received from the Lessee certificates of insurance
evidencing compliance with the provisions of Article VIII of the Lease
(including the naming of the Lessor, the Agent and the Lenders as additional
insured or loss payee with respect to such insurance), in form and substance
reasonably satisfactory to the Lessor and the Agent.
SECTION 5.25 Stamp Tax. If Florida documentary stamp tax is not paid on
---------
recordation of the Lease, the Lessee will promptly seek a Technical Assistance
Advisory ("TAA") from the Florida Department of Revenue. If the TAA holds that
such tax is due on the Lease, the Lessee will promptly pay the tax.
31
SECTION 6
TRANSFERS BY LESSOR AND LENDERS
SECTION 6.1 Lessor Transfers. The Lessor shall not assign, convey or
----------------
otherwise transfer all or any portion of its right, title or interest in, to or
under the Leased Property (except pursuant to Article V of the Lease) or any of
---------
the Operative Documents (i) to any Lessee Competitor or (ii) to any other Person
without the prior written consent of the Lenders and the Lessee, which consent
(in the case of clause (ii)) shall not be unreasonably withheld, provided that
--------
the Lessor may make any such assignment, conveyance or transfer to any other
Funding Party or any Affiliate of any Funding Party, without such consent, and
provided further that no such assignment, conveyance or transfer shall separate
----------------
ownership of an estate for years and remainder interest or violate the
TriPartite Agreement/Option Agreement, and provided further that if such
----------------
assignee is not a United States citizen or resident (or the assignee is filing
as a foreign corporation, partnership, estate or trust), such assignee shall
deliver to the Agent and the Lessee Internal Revenue Service form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service. Any proposed transferee of the Lessor shall make the representation set
forth in Section 4.2(b) to the other parties hereto.
--------------
SECTION 6.2 Loan Agreement; Lender Transfers. No Lender may grant
--------------------------------
participations in its Commitment or sell Funded Amounts or participations in its
Funded Amount and Commitment (i) to any Lessee Competitor or (ii) to any other
Person (other than an Affiliate) without the prior written consent of the
Lessee, which consent (in the case of clause (ii)) shall not be unreasonably
withheld. Any approved participation buyer shall not receive voting or waiver
rights except with respect to postponing maturities, decreasing interest rates,
releasing all or substantially all of the collateral or increasing principal
amounts. Assignments will be permitted only with the prior written consent of
the Lessee and the Agent, which consent (other than in the case of a Lessee
Competitor) shall not be unreasonably withheld, obtained at least 14 days prior
to any proposed assignment, and the payment of a processing fee of $2,500 by the
assignor or assignee Lender (as agreed between such Persons) to the Agent. Any
such assignment shall be to an Eligible Assignee who is not a Lessee Competitor,
shall be of an amount not less than $5,000,000, and if the assignee is not a
United States citizen or resident (or the assignee is filing as a foreign
corporation, partnership, estate or trust), the assignee shall deliver to the
Agent, the Lessor and the Lessee Internal
32
Revenue Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service. Assignments shall be evidenced by an
assignment and assumption agreement in substantially the form set forth as
Exhibit J.
---------
SECTION 6.3 Lessee Competitors. "Lessee Competitor" means (i) each
------------------ -----------------
Person whose name appears on the most recently revised Competitor List which has
been sent to Lessor and the Lenders prior to the commencement by Lessor or a
Lender, as the case may be, of negotiations for any transfer under this Section
-------
6 to such Person and (ii) all Affiliates of such Person. Attached hereto as
-
Schedule 6 is the current list (the "Competitor List") of Lessee Competitors.
---------- ---------------
Lessee shall have the right to update the Competitor List no more often than
once every six months during the Lease Term. In updating the Competitor List,
Lessee may add thereto any Person (an "Added Competitor") that at the time of
----------------
such updating is engaged, directly or indirectly, within any of the fifty (50)
states of the ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ or the
United Kingdom, in a business in which Lessee or any of its Affiliates is then
engaged, provided that Lessee shall then delete one competitor from the
Competitor List for each competitor so added so that the Competitor List shall
never contain more than nineteen (19) Lessee Competitors. Notwithstanding
anything to the contrary stated herein, in no event shall any bank, insurance
company, pension fund, real estate investment trust, finance company or other
institutional lender (an "Institutional Lender") or investor be a Lessee
--------------------
Competitor or included in any Competitor List.
SECTION 6.4 Lessor's Covenants. The Lessor covenants and agrees that,
------------------
unless the Agent and the Lender shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement;
(b) it shall not incur any indebtedness or other monetary
obligation or liability, other than operating expenses incurred in the ordinary
course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will
be used by the Lessor solely to pay costs of acquisition of the Leased Property
and to pay the Lessee for certain closing and transaction costs associated
therewith. No portion of the proceeds of the Loans will be used by the Lessor
(i) in connection with, whether directly or indirectly, any tender offer for, or
other acquisition of, stock of any
33
corporation with a view towards obtaining control of such other corporation,
(ii) directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest
in any Person, except for the Transactions;
(e) it will permit the Agent, the Lenders and their respective
representatives to examine, and make copies from, the Lessor's books and
records, and to visit the offices and properties of the Lessor for the purpose
of examining such materials, and to discuss the Lessor's performance hereunder
with any of its, or its general partner's, officers and employees;
(f) it shall not consent to or suffer or permit any Lien
against the Leased Property, other than as expressly contemplated pursuant to
the Operative Documents;
(g) it shall not consent to or suffer or permit the creation
of any easement or other restriction against the Leased Property other than as
permitted pursuant to Article V of the Lease; and
(h) it shall not hereafter violate or cause a violation of the
terms and provisions of the Tripartite Agreement/Option Agreement without the
consent of the Lessee.
SECTION 6.5 Existing Property Documents. (a) The parties hereto
---------------------------
acknowledge that the Lessee may terminate the Existing Lease.
(b) If Equifax Payment Services, Inc. exercises its option to
purchase the Leased Property pursuant to the Existing Lease, the Lessor, Agent,
other Lenders and the Lessee shall cooperate to facilitate the transaction and
enter into such modifications to the Operative Documents as may be necessary so
that the Lease and the other Operative Documents remain in effect, Equifax
Payment Services, Inc. shall pay to Honeywell the amount due pursuant to the
Existing Lease and shall pay actual, out-of-pocket legal expenses of the Lessor,
Agent and Other Lenders, but no other fees or charges, and there shall be no
actual transfer of the Leased Property.
(c) If Equifax Payment Services, Inc. validly exercises its
purchase option under the Honeywell Lease, then the
34
Lessor shall sell the Lease Property to Honeywell for the purchase price
provided under the Honeywell Lease, the Agent shall release its lien on the
Leased Property, and the Lessee shall pay to the Funding Parties any excess of
the Lease Balance over the amount received by the Lessor from Honeywell.
SECTION 7
INDEMNIFICATION
SECTION 7.1 General Indemnification. The Lessee agrees, whether or not
-----------------------
any of the transactions contemplated hereby shall be consummated, to assume
liability for, and to indemnify, protect, defend, save and hold harmless each
Indemnitee, on an After-Tax Basis, from and against, any and all Claims that may
be imposed on, incurred by or asserted, or threatened to be asserted, against
such Indemnitee (whether because of action or omission by such Indemnitee or
otherwise), whether or not such Indemnitee shall also be indemnified as to any
such Claim by any other Person and whether or not such Claim arises or accrues
prior to the Closing Date or after the Lease Termination Date, in any way
relating to or arising out of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby, and any amendment, modification or waiver in
respect thereof; or
(b) the Land, any Building or any part thereof or interest
therein;
(c) the purchase, design, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance,
rejection, ownership, management, possession, operation, rental, lease,
sublease, repossession, maintenance, repair, alteration, modification,
addition, substitution, storage, transfer of title, redelivery, use,
financing, refinancing, disposition, operation, condition, sale
(including, without limitation, any sale pursuant to the Lease), return
or other disposition of all or any part of any interest in the Leased
Property or the imposition of any Lien (or incurring of any liability
to refund or pay over any amount as a result of any Lien) thereon,
including, without limitation: (1) Claims or penalties arising from any
violation or alleged violation of law or in tort (strict liability or
otherwise), (2) latent or other defects, whether or not discoverable,
(3) any Claim based upon a violation or alleged violation of the terms
of any
35
restriction, easement, condition or covenant or other matter affecting
title to the Leased Property or the part thereof, (4) the making of any
Alterations in violation of any standards imposed by any insurance
policies required to be maintained by the Lessee pursuant to the Lease
which are in effect at any time with respect to the Leased Property or
any part thereof, (5) any Claim for patent, trademark or copyright
infringement, (6) Claims arising from any public improvements with
respect to the Leased Property resulting in any charge or special
assessments being levied against the Leased Property or any Claim for
utility "tap-in" fees, (7) Claims for personal injury or real or
personal property damage occurring, or allegedly occurring, on the
Land, Building or Leased Property and (8) any Claim in respect of the
Tripartite Agreement/Option Agreement other than Claims resulting from
actions of the Lessor after the Closing Date taken without the consent
of the Lessee;
(d) the offer, issuance, sale or delivery of the Notes by the
Lessee;
(e) the breach or alleged breach by the Lessee of any
representation or warranty made by it or deemed made by it in any
Operative Document or any certificate required to be delivered by any
Operative Document;
(f) the retaining or employment of any broker, finder or
financial advisor by the Lessee to act on its behalf in connection with
this Master Agreement, or the incurring of any fees or commissions to
which the Lessor, the Agent or any Lender might be subjected by virtue
of their entering into the transactions contemplated by this Master
Agreement;
(g) the existence of any Lien on or with respect to the Leased
Property, any Basic Rent or Supplemental Rent, title thereto, or any
interest therein, including any Liens which arise out of the
possession, use, occupancy, construction, repair or rebuilding of the
Leased Property or by reason of labor or materials furnished or claimed
to have been furnished to the Lessor or the Lessee, or any of their
respective contractors or agents or by reason of the financing of any
personalty or equipment purchased or leased by the Lessor or the Lessee
or Alterations constructed by the Lessor or the Lessee, except in all
cases the Liens listed as items (a) and (b) in the definition of
Permitted Liens;
36
(h) the transactions contemplated hereby or by any other
Operative Document, in respect of the application of Parts 4 and 5 of
Subtitle B of Title I of ERISA and any prohibited transaction described
in Section 4975(c) of the Tax Code;
(i) any act or omission by the Lessee under any Operative
Document, and any breach of any requirement, condition, restriction or
limitation in any Deed; or
(j) any activities or liabilities of the Lessor that were
conducted or incurred prior to the Closing Date;
provided, however, that the Lessee shall not be required to indemnify any
-------- -------
Indemnitee under this Section 7.1 for any of the following: (1) any Claim to the
-----------
extent that such Claim results from the willful misconduct (not taken at the
request of the Lessee), willful misrepresentation or gross negligence of such
Indemnitee, or (2) any Claim resulting from Lessor Liens which the Lessor
Indemnitee Group is responsible for discharging under the Operative Documents.
It is expressly understood and agreed that the indemnity provided for herein
shall survive the expiration or termination of, and shall be separate and
independent from any other remedy under this Master Agreement, the Lease or any
other Operative Document.
SECTION 7.2 Environmental Indemnity. In addition to and without
-----------------------
limitation of Section 7.1, the Lessee agrees to indemnify, hold harmless and
-----------
defend each Indemnitee from and against any and all claims (including without
limitation third party claims for personal injury or real or personal property
damage), losses (including but not limited to any loss of value of the Leased
Property), damages, liabilities, fines, penalties, charges, suits, settlements,
demands, administrative and judicial proceedings (including informal
proceedings) and orders, judgments, remedial action, requirements, enforcement
actions of any kind, and all reasonable costs and expenses actually incurred in
connection therewith (including, but not limited to, reasonable attorneys'
and/or paralegals' fees and expenses), including, but not limited to, all costs
incurred in connection with any investigation or monitoring of site conditions
or any clean-up, remedial, removal or restoration work by any federal, state or
local government agency, arising directly or indirectly, in whole or in part,
out of
37
(i) the presence on or under the Land of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials on,
under, from or onto the Land,
(ii) any activity, including, without limitation,
construction, carried on or undertaken on or off the Land, and whether
by the Lessee or any predecessor in title or any employees, agents,
contractors or subcontractors of the Lessee or any predecessor in
title, or any other Person, in connection with the handling, treatment,
removal, storage, decontamination, clean-up, transport or disposal of
any Hazardous Materials that at any time are located or present on or
under or that at any time migrate, flow, percolate, diffuse or in any
way move onto or under the Land,
(iii) loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, cost of corrective action, costs of
financial assurance, fines and penalties and natural resource damages),
or death or injury to any Person, and all expenses associated with the
protection of wildlife, aquatic species, vegetation, flora and fauna,
and any mitigative action required by or under applicable Environmental
Laws, in each case to the extent related to the Leased Property,
(iv) any claim concerning the Leased Property's lack of
compliance with applicable Environmental Laws, or any act or omission
causing an environmental condition on or with respect to the Leased
Property that requires remediation or would allow any governmental
agency to record a lien or encumbrance on the land records, or
(v) any residual contamination on or under the Land, or
affecting any natural resources on the Land, and to any contamination
of any property or natural resources arising in connection with the
generation, use, handling, storage, transport or disposal of any
Hazardous Materials on or from the Leased Property; in each case
irrespective of whether any of such activities were or will be
undertaken in accordance with applicable laws, regulations, codes and
ordinances;
38
in any case with respect to the matters described in the foregoing clauses (i)
-----------
through (v) that arise or occur
---
(w) prior to or during the Lease Term,
(x) at any time during which the Lessee or any Affiliate
thereof owns any interest in or otherwise occupies or possesses the
Leased Property or any portion thereof,
(y) during any period after and during the continuance of any
Event of Default or
(z) during any period of up to three years following the date
an Indemnitee takes possession of the Leased Property and during which
such Indemnitee retains such possession;
provided, however, the Lessee shall not be required to indemnify any Indemnitee
-------- -------
under this Section 7.2 for any Claim to the extent that such Claim results from
-----------
(1) the willful misconduct or gross negligence of such Indemnitee or (2)
Hazardous Materials which are initially placed on, in or under the Leased
Property by a Person other than the Lessee or any Affiliate thereof or any
sublessee or assignee of Lessee after the date the Lessee has surrendered
possession of the Leased Property and such Indemnitee, or any nominee of such
Indemnitee or third-party purchaser of the Leased Property takes possession of
the Leased Property. It is expressly understood and agreed that the indemnity
provided for herein shall survive the expiration or termination of and shall be
separate and independent from any other remedy under this Master Agreement, the
Lease or any other Operative Document.
SECTION 7.3 Proceedings in Respect of Claims. With respect to any
--------------------------------
amount that the Lessee is requested by an Indemnitee to pay by reason of Section
-------
7.1 or 7.2, such Indemnitee shall, if so requested by the Lessee and prior to
--- ---
any payment, submit such additional information to the Lessee as the Lessee may
reasonably request and which is in the possession of such Indemnitee to
substantiate properly the requested payment. In case any action, suit or
proceeding shall be brought against any Indemnitee, such Indemnitee shall notify
the Lessee of the commencement thereof, and the Lessee shall be entitled, at its
expense, to participate in, and, to the extent that the Lessee desires to,
assume and control the defense thereof with counsel reasonably satisfactory to
such Indemnitee; provided, however, that such Indemnitee may pursue a motion to
-------- -------
dismiss such Indemnitee from such action, suit
39
or proceeding with counsel of such Indemnitee's choice at the Lessee's expense;
and provided further that the Lessee may assume and control the defense of such
----------------
proceeding only if the Lessee shall have acknowledged in writing its obligations
to fully indemnify such Indemnitee in respect of such action, suit or
proceeding, the Lessee shall pay all reasonable costs and expenses related to
such action, suit or proceeding as and when incurred and the Lessee shall keep
such Indemnitee fully apprised of the status of such action suit or proceeding
and shall provide such Indemnitee with all information with respect to such
action suit or proceeding as such Indemnitee shall reasonably request; and,
provided further, that the Lessee shall not be entitled to assume and control
----------------
the defense of any such action, suit or proceeding if and to the extent that,
(A) in the reasonable opinion of such Indemnitee, (x) such action, suit or
proceeding involves any possibility of imposition of criminal liability or any
material risk of material civil liability on such Indemnitee or (y) such action,
suit or proceeding will involve a material risk of the sale, forfeiture or loss
of, or the creation of any Lien (other than a Permitted Lien) on the Leased
Property or any part thereof unless the Lessee shall have posted a bond or other
security satisfactory to the relevant Indemnitees in respect to such risk or (z)
the control of such action, suit or proceeding would involve an actual or
potential conflict of interest, (B) such proceeding involves Claims not fully
indemnified by the Lessee which the Lessee and the Indemnitee have been unable
to sever from the indemnified claim(s), or (C) an Event of Default has occurred
and is continuing. The Indemnitee may participate in a reasonable manner at its
own expense and with its own counsel in any proceeding conducted by the Lessee
in accordance with the foregoing.
If the Lessee fails to fulfill the conditions to the Lessee's assuming
the defense of any claim on or prior to the date that is 15 days prior to the
date that an answer or response is required, the Indemnitee may undertake such
defense, at the Lessee's expense. The Lessee shall not enter into any settlement
or other compromise with respect to any Claim which is entitled to be
indemnified under Section 7.1 or 7.2 without the prior written consent of the
----------- ---
related Indemnitee, which consent shall not be unreasonably withheld. Unless an
Event of Default shall have occurred and be continuing, no Indemnitee shall
enter into any settlement or other compromise with respect to any claim which is
entitled to be indemnified under Section 7.1 or 7.2 without the prior written
----------- ---
consent of the Lessee, which consent shall not be unreasonably withheld, unless
such Indemnitee waives
40
its right to be indemnified under Section 7.1 or 7.2 with respect to such Claim.
----------- ---
Upon payment in full of any Claim by the Lessee pursuant to Section 7.1
-----------
or 7.2 to or on behalf of an Indemnitee, the Lessee, without any further action,
---
shall be subrogated to any and all claims that such Indemnitee may have relating
thereto (other than claims in respect of insurance policies maintained by such
Indemnitee at its own expense), and such Indemnitee shall execute such
instruments of assignment and conveyance, evidence of claims and payment and
such other documents, instruments and agreements as may be reasonably necessary
to preserve any such claims and otherwise cooperate with the Lessee and give
such further assurances as are reasonably necessary or advisable to enable the
Lessee vigorously to pursue such claims.
Any amount payable to an Indemnitee pursuant to Section 7.1 or 7.2
----------- ---
shall be paid to such Indemnitee promptly upon, but in no event later than 30
days after, receipt of a written demand therefor from such Indemnitee,
accompanied by a written statement describing in reasonable detail the basis for
such indemnity and the computation of the amount so payable.
If for any reason the indemnification provided for in Section 7.1 or
-----------
7.2 is unavailable to an Indemnitee or is insufficient to hold an Indemnitee
---
harmless, then the Lessee agrees to contribute to the amount paid or payable by
such Indemnitee as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnitee on the one hand and by the Lessee on the other hand but also
the relative fault of such Indemnitee as well as any other relevant equitable
considerations. It is expressly understood and agreed that the right to
contribution provided for herein shall survive the expiration or termination of
and shall be separate and independent from any other remedy under this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.4 General Tax Indemnity. (a) Tax Indemnity. Except as
--------------------- -------------
otherwise provided in this Section 7.4, the Lessee shall pay on an After-Tax
-----------
Basis, and on written demand shall indemnify and hold each Tax Indemnitee
harmless from and against, any and all fees (including, without limitation,
documentation, recording, license and registration fees), taxes (including,
without limitation, income, gross receipts, sales, rental, use, turnover,
value-added, property, excise and stamp taxes), levies, imposts, duties,
charges, assessments or withholdings of any
41
nature whatsoever, together with any penalties, fines or interest thereon or
additions thereto (any of the foregoing being referred to herein as "Taxes" and
-----
individually as a "Tax" (for the purposes of this Section 7.4, the definition of
--- -----------
"Taxes" includes amounts imposed on, incurred by, or asserted against each Tax
Indemnitee as the result of any prohibited transaction, within the meaning of
Section 406 or 407 of ERISA or Section 4975(c) of the Tax Code, arising out of
the transactions contemplated hereby or by any other Operative Document))
imposed on or with respect to any Tax Indemnitee, the Lessee, the partnership
interests in the Lessor, the Leased Property or any portion thereof or the Land,
or any sublessee or user thereof, by the United States or by any state or local
government or other taxing authority in the United States in connection with or
in any way relating to (i) the acquisition, financing, mortgaging, construction,
preparation, installation, inspection, delivery, non-delivery, acceptance,
rejection, purchase, ownership, possession, rental, lease, sublease,
maintenance, repair, storage, transfer of title, redelivery, use, operation,
condition, sale, return or other application or disposition of all or any part
of the Leased Property or the partnership interests in the Lessor or the
imposition of any Lien (or incurrence of any liability to refund or pay over any
amount as a result of any Lien) thereon, (ii) Basic Rent or Supplemental Rent or
the receipts or earnings arising from or received with respect to the Leased
Property or any part thereof, or any interest therein or any applications or
dispositions thereof, (iii) any other amount paid or payable pursuant to the
Notes, or any other Operative Documents, (iv) the Leased Property, the Land or
any part thereof or any interest therein (including, without limitation, all
assessments payable in respect thereof, including, without limitation, all
assessments noted on the related Title Policy), (v) all or any of the Operative
Documents, any other documents contemplated thereby, any amendments and
supplements thereto, and (vi) otherwise with respect to or in connection with
the transactions contemplated by the Operative Documents.
(b) Exclusions from General Tax Indemnity. Section 7.4(a)
------------------------------------- --------------
shall not apply to:
(i) Taxes on, based on, or measured by or with
respect to net income of the Lessor and the Lender (including, without
limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by
items of tax preference or alternative minimum Taxes) other than (A)
any such Taxes that are, or are in the nature of, sales, use, license,
rental or property Taxes, (B) withholding Taxes imposed by
42
the United States or any state in which Leased Property is located (i)
on payments with respect to the Notes, to the extent imposed by reason
of a change in Applicable Law occurring after the date on which the
holder of such Note became the holder of such Note or (ii) on Rent, to
the extent the net payment of Rent after deduction of such withholding
Taxes would be less than amounts currently payable with respect to the
Funded Amounts and (C) Taxes relating to activities of the Lessor prior
to the Closing Date;
(ii) Taxes on, based on, or in the nature of or
measured by Taxes on doing business, business privilege, franchise,
capital, capital stock, net worth, or mercantile license or similar
taxes other than (A) any increase in such Taxes imposed on such Tax
Indemnitee by any state in which the Leased Property is located, net of
any decrease in such taxes realized by such Tax Indemnitee, to the
extent that such tax increase would not have occurred if on the Closing
Date the Lessor and the Lender had advanced funds to the Lessee in the
form of loans secured by the Leased Property in an amount equal to the
Funded Amounts funded on such Funding Date, with debt service for such
loans equal to the Basic Rent payable on each Payment Date and a
principal balance at the maturity of such loans in a total amount equal
to the Funded Amounts at the end of the Lease Term, or (B) any Taxes
that are or are in the nature of sales, use, rental, license or
property Taxes;
(iii) Taxes that are based on, or measured by, the
fees or other compensation received by a Person acting as Agent (in its
individual capacities) or any Affiliate of any thereof for acting as
trustee under the Loan Agreement;
(iv) Taxes that result from any act, event or
omission, or are attributable to any period of time, that occurs after
the earliest of (A) the expiration of the Lease Term and, if the Leased
Property is required to be returned to the Lessor in accordance with
the Lease, such return and (B) the discharge in full of the Lessee's
obligations to pay the Lease Balance, or any amount determined by
reference thereto, with respect to the Leased Property and all other
amounts due under the Lease, unless such Taxes relate to acts, events
or matters occurring prior to the earliest of such times or are imposed
on or with respect to any payments due under the Operative Documents
after such expiration or discharge;
43
(v) Taxes imposed on a Tax Indemnitee that result
from any voluntary sale, assignment, transfer or other disposition by
such Tax Indemnitee or any related Tax Indemnitee of any interest in
the Leased Property or any part thereof, or any interest therein or any
interest or obligation arising under the Operative Documents, or from
any sale, assignment, transfer or other disposition of any interest in
such Tax Indemnitee or any related Tax Indemnitee, it being understood
that each of the following shall not be considered a voluntary sale:
(A) any substitution, replacement or removal of any of the property by
the Lessee, (B) any sale or transfer resulting from the exercise by the
Lessee of any termination option, any purchase option or sale option,
(C) any sale or transfer while an Event of Default shall have occurred
and be continuing under the Lease, and (D) any sale or transfer
resulting from the Lessor's exercise of remedies under the Lease;
(vi) any Tax which is being contested in accordance
with the provisions of Section 7.4(c), during the pendency of such
--------------
contest;
(vii) any Tax that is imposed on a Tax Indemnitee as
a result of such Tax Indemnitee's gross negligence or willful
misconduct (other than gross negligence or willful misconduct imputed
to such Tax Indemnitee solely by reason of its interest in the Leased
Property);
(viii) any Tax to the extent resulting from a Tax
Indemnitee engaging after the Closing Date, with respect to the Leased
Property or the partnership interests in the Lessor, in transactions
other than those permitted by the Operative Documents;
(ix) to the extent any interest, penalties or
additions to tax result in whole or in part from the failure of a Tax
Indemnitee to file a return that it is required to file in a proper and
timely manner, unless such failure (A) results from the transactions
contemplated by the Operative Documents in circumstances where the
Lessee did not give timely notice to such Tax Indemnitee (and such Tax
Indemnitee otherwise had no actual knowledge) of such filing
requirement that would have permitted a proper and timely filing of
such return, or (B) results from the failure of the Lessee to supply
information necessary for the proper
44
and timely filing of such return that was not in the possession of such
Tax Indemnitee; and
(x) any Tax that results from the breach by the
Lessor of its representation and warranty made in Section 4.2(b) or the
--------------
breach of any Lender of its representation and warranty made in Section
-------
4.3(b).
------
(c) Contests. If any claim shall be made against any Tax
--------
Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee
(including a written notice of such proceeding) for any Taxes as to which the
Lessee may have an indemnity obligation pursuant to Section 7.4, or if any Tax
-----------
Indemnitee shall determine that any Taxes as to which the Lessee may have an
indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee
-----------
shall promptly notify the Lessee. The Lessee shall be entitled, at its expense,
to participate in, and, to the extent that the Lessee desire to, assume and
control the defense thereof; provided, however, that the Lessee shall have
-------- -------
acknowledged in writing its obligation to fully indemnify such Tax Indemnitee in
respect of such action, suit or proceeding if the contest is unsuccessful; and,
provided further, that the Lessee shall not be entitled to assume and control
-------- -------
the defense of any such action, suit or proceeding (but the Tax Indemnitee shall
then contest, at the sole cost and expense of the Lessee, on behalf of the
Lessee with representatives reasonably satisfactory to the Lessee) if and to the
extent that, (A) in the reasonable opinion of such Tax Indemnitee, such action,
suit or proceeding (x) involves any meaningful risk of imposition of criminal
liability or any material risk of material civil liability on such Tax
Indemnitee or (y) will involve a material risk of the sale, forfeiture or loss
of, or the creation of any Lien (other than a Permitted Lien) on the Leased
Property or any part thereof unless the Lessee shall have posted a bond or other
security satisfactory to the relevant Tax Indemnitees in respect to such risk,
(B) such proceeding involves Claims not fully indemnified by the Lessee which
the Lessee and the Tax Indemnitee have been unable to sever from the indemnified
claim(s), (C) an Event of Default has occurred and is continuing, (D) such
action, suit or proceeding involves matters which extend beyond or are unrelated
to the Transaction and if determined adversely could be materially detrimental
to the interests of such Tax Indemnitee notwithstanding indemnification by the
Lessee or (E) such action, suit or proceeding involves any federal or any state
income tax liability of the Tax Indemnitee. With respect to any contests
controlled by a Tax Indemnitee, (i) if such contest relates to the federal or
any state income tax liability of such Tax
45
Indemnitee, such Tax Indemnitee shall be required to conduct such contest only
if the Lessee shall have provided to such Tax Indemnitee an opinion of
independent tax counsel selected by the Tax Indemnitee and reasonably
satisfactory to the Lessee stating that a reasonable basis exists to contest
such claim or (ii) in the case of an appeal of an adverse determination of any
contest relating to any Taxes, an opinion of such counsel to the effect that
such appeal is more likely than not to be successful, provided, however, such
-------- -------
Tax Indemnitee shall in no event be required to appeal an adverse determination
to the United States Supreme Court. The Tax Indemnitee may participate in a
reasonable manner at its own expense and with its own counsel in any proceeding
conducted by the Lessee in accordance with the foregoing.
Each Tax Indemnitee shall at the Lessee's expense supply the
Lessee with such information and documents in such Tax Indemnitee's possession
reasonably requested by the Lessee as are necessary or advisable for the Lessee
to participate in any action, suit or proceeding to the extent permitted by this
Section 7.4. Unless an Event of Default shall have occurred and be continuing,
-----------
no Tax Indemnitee shall enter into any settlement or other compromise with
respect to any Claim which is entitled to be indemnified under this Section 7.4
-----------
without the prior written consent of the Lessee, which consent shall not be
unreasonably withheld, unless such Tax Indemnitee waives its right to be
indemnified under this Section 7.4 with respect to such Claim.
-----------
Notwithstanding anything contained herein to the contrary, (a)
a Tax Indemnitee will not be required to contest (and the Lessee shall not be
permitted to contest) a claim with respect to the imposition of any Tax if such
Tax Indemnitee shall waive its right to indemnification under this Section 7.4
-----------
with respect to such claim (and any related claim with respect to other taxable
years the contest of which is precluded as a result of such waiver) and (b) no
Tax Indemnitee shall be required to contest any claim if the subject matter
thereof shall be of a continuing nature and shall have previously been decided
adversely, unless there has been a change in law which in the opinion of Tax
Indemnitee's counsel creates substantial authority for the success of such
contest. Each Tax Indemnitee and the Lessee shall consult in good faith with
each other regarding the conduct of such contest controlled by either.
(d) Reimbursement for Tax Savings. If (x) a Tax Indemnitee
-----------------------------
shall obtain a credit or refund of any Taxes paid by
46
the Lessee pursuant to this Section 7.4 or (y) by reason of the incurrence or
-----------
imposition of any Tax for which a Tax Indemnitee is indemnified hereunder or any
payment made to or for the account of such Tax Indemnitee by the Lessee pursuant
to this Section 7.4, such Tax Indemnitee at any time realizes a reduction in any
-----------
Taxes for which the Lessee is not required to indemnify such Tax Indemnitee
pursuant to this Section 7.4, which reduction in Taxes was not taken into
-----------
account in computing such payment by the Lessee to or for the account of such
Tax Indemnitee, then such Tax Indemnitee shall promptly pay to the Lessee (xx)
the amount of such credit or refund, together with the amount of any interest
received by such Tax Indemnitee on account of such credit or refund or (yy) an
amount equal to such reduction in Taxes, as the case may be; provided that no
--------
such payment shall be made so long as an Event of Default shall have occurred
and be continuing and, provided, further, that the amount payable to the Lessee
-------- -------
by any Tax Indemnitee pursuant to this Section 7.4(d) shall not at any time
--------------
exceed the aggregate amount of all indemnity payments made by the Lessee under
this Section 7.4 to such Tax Indemnitee with respect to the Taxes which gave
-----------
rise to the credit or refund or with respect to the Tax which gave rise to the
reduction in Taxes less the amount of all prior payments made to the Lessee by
such Tax Indemnitee under this Section 7.4(d). Each Tax Indemnitee agrees to act
--------------
in good faith to claim such refunds and other available Tax benefits, and take
such other actions as may be reasonable to minimize any payment due from the
Lessee pursuant to this Section 7.4. The disallowance or reduction of any
-----------
credit, refund or other tax savings with respect to which a Tax Indemnitee has
made a payment to the Lessee under this Section 7.4(d) shall be treated as a Tax
--------------
for which the Lessee are obligated to indemnify such Tax Indemnitee hereunder
without regard to Section 7.4(b) hereof.
--------------
(e) Payments. Any Tax indemnifiable under this Section 7.4
-------- -----------
shall be paid directly when due to the applicable taxing authority if direct
payment is practicable and permitted. If direct payment to the applicable taxing
authority is not permitted or is otherwise not made, any amount payable to a Tax
Indemnitee pursuant to Section 7.4 shall be paid within thirty (30) days after
-----------
receipt of a written demand therefor from such Tax Indemnitee accompanied by a
written statement describing in reasonable detail the amount so payable, but not
before the date that the relevant Taxes are due. Any payments made pursuant to
Section 7.4 shall be made to the Tax Indemnitee entitled thereto or the Lessor,
-----------
as the case may be, in immediately available funds at such bank or to such
account as specified by the payee in written directions to the payor, or, if no
such direction shall
47
have been given, by check of the payor payable to the order of the payee by
certified mail, postage prepaid at its address as set forth in this Master
Agreement. Upon the request of any Tax Indemnitee with respect to a Tax that the
Lessee are required to pay, the Lessee shall furnish to such Tax Indemnitee the
original or a certified copy of a receipt for the Lessee's payment of such Tax
or such other evidence of payment as is reasonably acceptable to such Tax
Indemnitee.
(f) Reports. If the Lessee knows of any report, return or
-------
statement required to be filed with respect to any Taxes that are subject to
indemnification under this Section 7.4, the Lessee shall, if the Lessee is
-----------
permitted by Applicable Law, timely file such report, return or statement (and,
to the extent permitted by law, show ownership of the applicable Leased Property
in the Lessee); provided, however, that if the Lessee is not permitted by
-------- -------
Applicable Law or does not have access to the information required to file any
such report, return or statement, the Lessee will promptly so notify the
appropriate Tax Indemnitee, in which case Tax Indemnitee will file such report.
In any case in which the Tax Indemnitee will file any such report, return or
statement, the Lessee shall, upon written request of such Tax Indemnitee,
prepare such report, return or statement for filing by such Tax Indemnitee or,
if such Tax Indemnitee so requests, provide such Tax Indemnitee with such
information as is reasonably available to the Lessee.
(g) Verification. At the Lessee's request, the amount of any
------------
indemnity payment by the Lessee or any payment by a Tax Indemnitee to the Lessee
pursuant to this Section 7.4 shall be verified and certified by an independent
-----------
public accounting firm selected by the Lessee and reasonably acceptable to the
Tax Indemnitee. Unless such verification shall disclose an error in the Lessee's
favor of 5% or more, the costs of such verification shall be borne by the
Lessee. In no event shall the Lessee have the right to review the Tax
Indemnitee's tax returns or receive any other confidential information from the
Tax Indemnitee in connection with such verification. The Tax Indemnitee agrees
to cooperate with the independent public accounting firm performing the
verification and to supply such firm with all information reasonably necessary
to permit it to accomplish such verification, provided that the information
--------
provided to such firm by such Tax Indemnitee shall be for its confidential use.
The parties agree that the sole responsibility of the independent public
accounting firm shall be to verify the amount of a payment pursuant to this
Master Agreement and that matters of
48
interpretation of this Master Agreement are not within the scope of the
independent accounting firm's responsibilities.
SECTION 7.5 Basis for Determining Interest Rate Inadequate or Unfair.
--------------------------------------------------------
If on or prior to the first day of any Rent Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Rent Period, or
(b) the Required Funding Parties advise the Agent that the
London Interbank Offered Rate as determined by the Agent will not
adequately and fairly reflect the cost to such Funding Parties of
funding LIBOR Advances for such Rent Period,
the Agent shall forthwith give notice thereof to the Lessee and the Funding
Parties, whereupon until the Agent notifies the Lessee that the circumstances
giving rise to such suspension no longer exist, the obligations of the Funding
Parties to make or maintain such Funded Amounts as LIBOR Advances shall be
suspended, and such affected LIBOR Advances shall bear interest or accrue yield,
as the case may be, at the Alternative Rate.
SECTION 7.6 Illegality. If, after the date hereof, the adoption of any
----------
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof (any such agency being referred to as an "Authority" and any such event
---------
being referred to as a "Change of Law"), or compliance by any Funding Party (or
-------------
its Funding Office) with any request or directive (whether or not having the
force of law) of any Authority shall make it unlawful or impossible for any
Funding Party (or its Funding Office) to make, maintain or fund its LIBOR
Advances and such Funding Party shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Funding Parties and the Lessee,
whereupon until such Funding Party notifies the Lessee and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Funding Party to make LIBOR Advances shall be suspended. Before giving any
notice to the Agent pursuant to this Section, such Funding Party shall designate
a different Funding Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Funding Party, be otherwise
disadvantageous to such Funding Bank. If such Funding Party shall determine that
it may not lawfully continue to maintain and fund any of its outstanding LIBOR
Advances to maturity and shall so specify in such notice, each LIBOR Advance of
such Funding Party shall be converted to an Alternative Rate Advance.
49
SECTION 7.7 Increased Cost and Reduced Return. (a) If after the date
---------------------------------
hereof, a Change of Law or compliance by any Funding Party (or its Funding
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
(1) any such requirement imposed by the Board of Governors of the
Federal Reserve System, and (2) with respect to any LIBOR Advance, any
reserve requirement described in the definition of Euro-Dollar Reserve
Percentage in excess of the reserve requirement of the Agent) against
assets of, deposits with or for the account of, or credit extended by,
any Funding Party (or its Funding Office); or
(ii) shall impose on any Funding Party (or its Funding
Office) or on the United States market for certificates of deposit or
the London interbank market any other condition affecting its LIBOR
Advances or its obligation to make LIBOR Advances;
and the result of any of the foregoing is to increase the cost to such Funding
Party (or its Funding Office) of making or maintaining any LIBOR Advance, or to
reduce the amount of any sum received or receivable by such Funding Party (or
its Funding Office) under the Operative Documents with respect thereto, by an
amount deemed by such Funding Party to be material, then, within 15 days after
demand by such Funding Party (with a copy to the Agent), the Lessee shall pay to
such Funding Party such additional amount or amounts as will compensate such
Funding Party for such increased cost or reduction.
(b) If any Funding Party shall have determined that after the
date hereof the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Funding Party (or its Funding
Office) with any request or directive regarding capital adequacy (whether or not
having the force of law) of any Authority, has or would have the effect of
reducing the rate of return on such Funding Party's capital as a consequence of
its obligations hereunder to a level below that which such Funding Party could
have achieved but for such adoption, change or compliance (taking into
consideration such Funding Party's policies with respect to capital adequacy) by
an amount deemed by such Funding Party to be material, then within 15 days after
demand by such Funding Party (with a copy to the Agent), the Lessee shall pay to
such Funding Party such additional amount or amounts as will compensate such
Funding
50
Party for such reduction, but in no event shall the Lessee be liable for amounts
incurred more than 90 days prior to receipt of such demand.
(c) Each Funding Party will promptly notify the Lessee and the
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Funding Party to compensation pursuant to this Section
and will designate a different Funding Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Funding Party, be otherwise disadvantageous to such Funding
Party. A certificate of any Funding Party claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Funding Party may use any reasonable averaging and attribution
methods.
(d) Notwithstanding the foregoing, in the event the Lessee is
required to pay any Funding Party amounts pursuant to Section 7.6 or this
-----------
Section 7.7 and the designation of a different Funding Office pursuant to
-----------
Section 7.6 or Section 7.7 will not avoid the need for compensation to such
----------- -----------
Funding Party (an "Affected Funding Party"), the Lessee may give notice to such
----------------------
Affected Funding Party (with copies to the Agent) that it wishes to seek one or
more assignees (which may be one or more of the Funding Parties) to assume the
Commitment of such Affected Funding Party and to purchase its outstanding Funded
Amounts; provided, that if there is more than one Affected Funding Party which
--------
has requested substantially and proportionally equal compensation hereunder, the
Lessee shall elect to seek an assignee to assume the Commitments of all such
Affected Funding Parties. Each Affected Funding Party agrees to sell its
Commitment, Funded Amounts and interest in the Operative Documents in accordance
with Section 6 to any such assignee for an amount equal to the sum of the
---------
outstanding unpaid principal of and accrued interest or Yield on such Funded
Amounts, plus all other fees and amounts (including, without limitation, any
compensation due to such Affected Funding Parties under Section 7.6 or this
-----------
Section 7.7) due to such Affected Funding Party hereunder calculated, in each
-----------
case, to the date such Funded Amounts and interest are purchased. Upon such sale
or prepayment, each such Affected Funding Party shall have no further commitment
or other obligation to the Lessee hereunder or under any Operative Document.
(e) The provisions of this Section 7.7 (i) shall be applicable
-----------
with respect to any Assignee, and any calculations required by such provisions
shall be made based upon the circumstances of such Assignee and (ii) shall
constitute a continuing agreement and shall survive the termination of the
51
Operative Documents and the payment in full or cancellation of the Funded
Amounts.
SECTION 7.8 Alternative Rate Advances Substituted for Affected
--------------------------------------------------
LIBOR Advances. If (i) the obligation of any Funding Party to make or maintain
--------------
any LIBOR Advances has been suspended pursuant to Section 7.6 or (ii) any
-----------
Funding Party has demanded compensation under Section 7.7, and the Lessee shall,
-----------
by at least 5 Business Days' prior notice to such Funding Party through the
Agent, have elected that the provisions of this Section shall apply to such
Funding Party, then, unless and until such Funding Party notifies the Lessee
that the circumstances giving rise to such suspension or demand for compensation
no longer apply:
(a) all Funded Amounts which would otherwise be made by such
Funding Party as LIBOR Advances shall be made instead as Alternative
Rate Advances (in all cases interest, Yield and principal on such
Funded Amounts shall be payable contemporaneously with the related
Funded Amounts of the other Funding Parties), and
(b) after each of its LIBOR Advances has been repaid, all
payments of principal which would otherwise be applied to repay such
LIBOR Advances shall be applied to repay its Alternative Rate Advances
instead.
SECTION 7.9 Compensation. Upon the request of any Funding
------------
Party, delivered to the Lessee and the Agent, the Lessee shall pay to such
Funding Party such amount or amounts as shall compensate such Funding Party for
any loss, cost or expense incurred by such Funding Party as a result of:
(a) any payment or prepayment of LIBOR Advances on a date
other than the last day of an Rent Period for such LIBOR Advance; or
(b) if the Funding Parties have permitted prepayment of any
LIBOR Advances, any failure by the Lessee to prepay such LIBOR Advances on the
date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(c) any failure by the Lessee to consummate a Funding on the
date specified in the applicable Funding Request;
such compensation to include, without limitation, as applicable: (A) an amount
equal to the excess, if any, of (x) the amount of interest which would have
accrued on the amount so paid or prepaid or not prepaid or funded for the period
from the date of such payment, prepayment or failure to prepay or to take
funding to the last day of the then current Rent Period for such LIBOR Advance
(or, in the case of a failure to prepay or to take
52
funding, the Rent Period for such LIBOR Advance which would have commenced on
the date of such failure to prepay or to take funding) at the applicable rate of
interest or yield for such LIBOR Advance provided for herein over (y) the amount
of interest or yield (as reasonably determined by such Funding Party) such
Funding Party would have paid on deposits in Dollars of comparable amounts
having terms comparable to such period placed with it by leading banks in the
London interbank market.
SECTION 7.10 Limitation on Certain Payment Obligations. (a)
-----------------------------------------
Each Funding Party or the Agent shall make written demand on the Lessee for
indemnification or compensation pursuant to Section 7.7, 7.8 or 7.9 hereof no
----------- --- ---
later than 120 days after the event giving rise to the claim for indemnification
or compensation occurs.
(b) In the event that any Funding Party or the Agent fails to
give the Lessee notice within the applicable time limitation prescribed in (a)
above, the Lessee shall have no obligation to pay such claim for compensation or
indemnification hereunder.
SECTION 7.11 End of Term Indemnity. In the event that at the end of the
---------------------
Lease Term (i) the Lessee elects the option set forth in Section 14.6 of the
Lease, and (ii) after the Lessor receives the sales proceeds from the Leased
Property under Section 14.6 or 14.7 of the Lease, together with the Lessee's
payment of the Recourse Deficiency Amount, the Lessor shall not have received
the entire Lease Balance, then, within 90 days after the end of the Lease Term,
the Lessor or the Agent may obtain, at the Lessee's sole cost and expense, a
report from the Appraiser (or, if the Appraiser is not available, another
appraiser reasonably satisfactory to the Lessor or the Agent, as the case may
be, and approved by the Lessee, such approval not to be unreasonably withheld)
in form and substance satisfactory to the Lessor and the Agent (the "Report") to
------
establish the reason for any decline in value of the Leased Property from the
Lease Balance. The Lessee shall promptly reimburse the Lessor for the amount
equal to such decline in value to the extent below the Lease Balance to the
extent that the Report indicates that such decline was due to
(w) extraordinary use, failure to maintain, to repair, to
restore, to rebuild or to replace, failure to comply with all
Applicable Laws, failure to use, workmanship, method of installation or
removal or maintenance, repair, rebuilding or replacement, or any other
cause or condition within the power of the Lessee to control or effect
resulting in the Building failing to be an office, store or warehouse
of the
53
type and quality contemplated by the Appraisal (excepting in each case
ordinary wear and tear), or
(x) any Alteration made to, or any rebuilding of, the Leased
Property or any part thereof by the Lessee, or
(y) any restoration or rebuilding carried out by the Lessee or
any condemnation of any portion of the Leased Property pursuant to
Article X of the Lease to the extent not covered by insurance or
condemnation proceeds applied to the Lease Balance, or
(z) any use of the Leased Property or any part thereof by the
Lessee other than as permitted by the Lease, or any act or omission
constituting a breach of any requirement, condition, restriction or
limitation set forth in the Existing Lease.
SECTION 8
MISCELLANEOUS
SECTION 8.1 Survival of Agreements. The representations, warranties,
----------------------
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery and the termination or expiration of
this Master Agreement and any of the Operative Documents, the transfer of any
Land to the Lessor as provided herein, any disposition of any interest of the
Lessor in the Leased Property, the purchase and sale of the Notes, payment
therefor and any disposition thereof and shall be and continue in effect
notwithstanding any investigation made by any party hereto or to any of the
other Operative Documents and the fact that any such party may waive compliance
with any of the other terms, provisions or conditions of any of the Operative
Documents.
SECTION 8.2 Notices. Unless otherwise specified herein, all notices,
-------
requests, demands or other communications to or upon the respective parties
hereto shall be addressed to such parties at the addresses therefor as set forth
in Schedule 8.2, as such other address as any such party shall specify to the
------------
other parties hereto, and shall be deemed to have been given (i) the Business
Day after being sent, if sent by overnight courier service; (ii) the Business
Day received, if sent by messenger; (iii) the day sent, if sent by facsimile and
confirmed electronically or otherwise during business hours of a Business
54
Day (or on the next Business Day if otherwise sent by facsimile and confirmed
electronically or otherwise); or (iv) three Business Days after being sent, if
sent by registered or certified mail, postage prepaid.
SECTION 8.3 Counterparts. This Master Agreement may be executed by the
------------
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 8.4 Amendments. No Operative Document nor any of the terms
----------
thereof may be terminated, amended, supplemented, waived or modified with
respect to the Lessee or any Funding Party, except (a) in the case of a
termination, amendment, supplement, waiver or modification to be binding on the
Lessee, with the written agreement or consent of the Lessee, and (b) in the case
of a termination, amendment, supplement, waiver or modification to be binding on
the Funding Parties, with the written agreement or consent of the Lessor and the
Required Funding Parties; provided, however, that
-------- -------
(x) notwithstanding the foregoing provisions of this Section
-------
8.4, the consent of each Funding Party affected thereby shall be required for
---
any amendment, modification or waiver directly:
(i) modifying any of the provisions of this Section 8.4,
-----------
changing the definition of "Required Funding Parties", or increasing
------------------------
the Commitment of such Funding Party;
(ii) amending, modifying, waiving or supplementing any of
the provisions of Section 3 of the Loan Agreement or the
representations of such Funding Party in Section 4.2 or 4.3 or the
----------- ---
covenants of such Funding Party in Section 6 of this Master Agreement;
---------
(iii) reducing any amount payable to such Funding Party under
the Operative Documents or extending the time for payment of any such
amount, including, without limitation, any Rent, any Funded Amount, any
fees, any indemnity, the Lease Balance, any Funding Party Balance,
Recourse Deficiency Amount, interest or Yield; or
(iv) consenting to any assignment of the Lease, releasing
any of the collateral assigned to the Agent and
55
the Lenders pursuant to the Mortgage and the Assignment of Lease and
Rents (but excluding a release of any rights that the Lender may have
in the Leased Property, or the proceeds thereof as contemplated in the
definition of "Release Date"), releasing the Lessee from its
obligations in respect of the payments of Rent and the Lease Balance,
releasing the Lessee from its obligations under the Operative Guaranty
or the other Operative Documents or changing the absolute and
unconditional character of any such obligation; and
(y) no such termination, amendment, supplement, waiver or
modification shall, without the written agreement or consent of the Lessor and
the Lender, be made to the Lease; and
(z) subject to the foregoing clauses (x) and (y), so long as
----------- ---
no Event of Default has occurred and is continuing, the Lessor, the Agent and
the Lenders may not amend, supplement, waive or modify any terms of the Loan
Agreement, the Notes, the Mortgage and the Assignment of Lease and Rents without
the consent of the Lessee (such consent not to be unreasonably withheld or
delayed); the Lessor and the Lessee may not amend, supplement, waive or modify
any terms of the Lease without the consent of the Agent and the Lender.
SECTION 8.5 Headings, etc. The Table of Contents and headings of the
-------------
various Articles and Sections of this Master Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
SECTION 8.6 Parties in Interest. Except as expressly provided herein,
-------------------
none of the provisions of this Master Agreement is intended for the benefit of
any Person except the parties hereto, and their respective successors and
permitted assigns.
SECTION 8.7 GOVERNING LAW. THIS MASTER AGREEMENT HAS BEEN DELIVERED IN,
-------------
AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
SECTION 8.8 Expenses. Whether or not the transactions herein
--------
contemplated are consummated, the Lessee agrees to pay, as Supplemental Rent,
all actual, reasonable and documented out-of-pocket costs and expenses of the
Lessor, the Agent in connection with the preparation, execution and delivery of
the Operative
56
Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto requested by or consented to by
the Lessee (including, without limitation, the actual, reasonable and documented
fees and disbursements of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Agent and
of the Lessor, the Agent and the Lender in connection with the enforcement of
the Operative Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable and documented fees and
disbursements of counsel for the Lessor, the Agent and the Lender actually
incurred), in each case (including without limitation in respect of any Lease
Supplement notwithstanding the absence of this phrase therefrom) without regard
to any statutory presumption as to the amount of legal fees.
SECTION 8.9 Severability. Any provision of this Master Agreement that
------------
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 8.10 Liabilities of the Funding Parties. No Funding Party shall
----------------------------------
have any obligation to any other Funding Party or to the Lessee with respect to
the transactions contemplated by the Operative Documents except those
obligations of such Funding Party expressly set forth in the Operative Documents
or except as set forth in the instruments delivered in connection therewith, and
no Funding Party shall be liable for performance by any other party hereto of
such other party's obligations under the Operative Documents except as otherwise
so set forth. No Lender shall have any obligation or duty to the Lessee, any
other Funding Parties or any other Person with respect to the transactions
contemplated hereby except to the extent expressly set forth in this Master
Agreement or the Loan Agreement.
SECTION 8.11 Submission to Jurisdiction; Waivers. Each party hereto
-----------------------------------
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Master Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Georgia sitting in ▇▇▇▇▇▇ County, Georgia, the courts of the
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ for the Northern District of Georgia, and
appellate courts from any thereof;
(ii) consents that any such action or proceedings may be
brought to such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth in Schedule 8.2 or at
------------
such other address of which the other parties hereto shall have been
notified pursuant to Section 8.2; and
-----------
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law.
SECTION 8.12 Liabilities of the Agent. The Agent shall have no duty,
------------------------
liability or obligation to any party to this Master Agreement with respect to
the transactions contemplated hereby except those duties, liabilities or
obligations expressly set forth in this Master Agreement or the Loan Agreement,
and any such duty, liability or obligations of the Agent shall be as expressly
limited by this Master Agreement or the Loan Agreement, as the case may be.
SECTION 8.13 Confidentiality. Each Funding Party agrees to exercise
---------------
commercially reasonable efforts to keep any information delivered or made
available by the Lessee to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Funding Party who are or are expected to become engaged in evaluating,
approving, structuring or administering the transaction contemplated by the
Operative Documents; provided, however that nothing herein shall prevent any
-------- -------
Funding Party from disclosing such information (i) to any other Funding Party,
(ii) upon the order of any court or administrative agency, (iii) upon the
request or demand of any regulatory agency or authority having jurisdiction over
such Funding Party, (iv) which has been publicly disclosed, (v) to the extent
reasonably required in connection with any litigation to which the Agent, any
Funding Party or their respective Affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of any
58
remedy hereunder, (vii) to such Funding Party's legal counsel and independent
auditors and (viii) to any actual or proposed participant, assignee or other
transferee of all or part of its rights hereunder which has agreed in writing to
be bound by the provisions of this Section 8.13; provided that should disclosure
------------ --------
of any such confidential information be required by virtue of clause (ii) of the
immediately preceding sentence, any relevant Funding Party shall promptly notify
the Lessee of same (unless prohibited by such order in clause (ii)) so as to
allow the Lessee to seek a protective order or to take any other appropriate
action; provided, further, that, no Funding Party shall be required to delay
-------- ------- ----
compliance with any directive to disclose any such information so as to allow
the Lessee to effect any such action.
59
IN WITNESS WHEREOF, the parties hereto have caused this Master
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
EQUIFAX INC., as the Lessee
By:
-----------------------------
Name Printed:
Title:
FLORIDA MASTER
AGREEMENT
S-1
PREFCO VI LIMITED PARTNERSHIP, as
Lessor
By: AFG PREFCO GP, LLC, a Texas
limited liability company, as
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: President
---------------------------
FLORIDA MASTER
AGREEMENT
S-2
SUNTRUST BANK, ATLANTA,
as Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Title: Director
--------------------------
FLORIDA MASTER
AGREEMENT
S-3
ATLANTIC FINANCIAL GROUP, LTD.
By: Atlantic Financial Managers,
Inc., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------
Title: President
-----------------------------
FLORIDA MASTER
AGREEMENT
S-4
SCHEDULE 2.2
PAYMENT INSTRUCTIONS AND
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 3.5%
Lender Commitment Percentage: 96.5%
Lessor Commitment: $811,125.00
Lender Commitment: $22,363,875.00
SCHEDULE 6
EQUIFAX COMPETITORS
-------------------
TRW Information Services, Inc. (and TRW, Inc., its parent)
TransUnion (TU)
Computer Sciences Corporation (CSC)
Dun & Bradstreet (D&B)
First Financial Management Corp. (FFMC), (includes Telecheck NABANCO)
Total Systems Services, Inc.
First Data Resources (FDR)
Policy Management Systems Corp. (PMSC)
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
National Processing Co. (NPC)
Deluxe Check Printers (including SCAN)
Fair, ▇▇▇▇▇ & Co.
National Data Corp.
DATEQ
Continuum
Creditel
EMSI
PAYCO American Corp.
Olsten's Temporary
▇▇▇▇▇▇▇, PLC
Next PLC
Experian, Inc. (and Great Universal Stores, its parent)
Acxiom Corporation
Atlantes
Direct Marketing Technologies, Inc.
Dynamark
▇▇▇▇▇ ▇▇▇▇▇
InfoUSA
Metromail Corporation
▇.▇. ▇▇▇▇ Company
Electronic Data Systems
SCHEDULE 8.2
ADDRESSES FOR NOTICES
Lessee: Equifax Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer Director of
Corporate Real Estate
General Counsel
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Long ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
5300 SunTrust Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lessor and AFG: c/o Atlantic Financial Group, Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Agent: ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇
Mail Code 127
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Center 127/Atlanta Corporate
Banking
with a copy to:
c/o SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
24th Floor
Mail Code 3943
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBIT A
TO MASTER AGREEMENT
FORM OF FUNDING REQUEST
TO: PREFCO VI LIMITED PARTNERSHIP, as Lessor,
under the Master Agreement
referred to below
Reference is hereby made to the Master Agreement (Florida Property)
dated as of December 30, 1999 (as heretofore amended, the "Master Agreement")
----------------
among Equifax Inc., as Lessee and Guarantor, PREFCO VI LIMITED PARTNERSHIP, as
Lessor, Atlantic Financial Group, Ltd. and SunTrust Bank, Atlanta, as Agent and
Lender. Capitalized terms not otherwise defined herein are used herein as
defined in the Master Agreement.
Equifax Inc. as Lessee (the "Lessee") hereby notifies you that Lessee
------
requests a Funding in the amount of $____________ on [INSERT REQUESTED FUNDING
DATE] in respect of [DESCRIBE LAND INTEREST].
In connection with such requested Funding, the Lessee hereby represents
and warrants to you as follows:
(A) on the requested Funding Date the representations and
warranties of the Lessee contained in each of the Operative Documents
shall be true and correct in all material respects as though made on
and as of such Funding Date, except to the extent such representations
or warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects on and as of such earlier date;
(B) there shall not have occurred and be continuing any Event
of Default, Potential Event of Default;
(C) each Operative Document to which the Lessee is a party is
in full force and effect with respect to it;
(D) no event that could reasonably be expected to have a
Material Adverse Effect has occurred since March 31, 1997;
(E) the amount of the requested Funding represents amounts in
respect of the purchase price for the
remainderman interest in the Leased Property [and the partnership
interests in the Lessor]; and
(F) all of the conditions precedent to such Funding set forth
in Section 3 of the Master Agreement have been satisfied.
Please wire transfer the proceeds of the Funding to
_____________________________________.
The Lessee has caused this Funding Request to be executed and delivered
by its duly authorized officer this _______ __, ___.
EQUIFAX INC.
By:
----------------------------
Title:
-------------------------
cc: SunTrust Bank, Atlanta
A-2
EXHIBIT B
TO MASTER AGREEMENT
FORM OF ASSIGNMENT OF LEASE AND RENTS
[TO BE A FORM ACCEPTABLE TO LESSEE,
LESSOR AND AGENT]
EXHIBIT D
TO MASTER AGREEMENT
FORM OF MORTGAGE
[TO BE A FORM ACCEPTABLE TO LESSEE,
LESSOR AND AGENT]
EXHIBIT E
TO MASTER AGREEMENT
COMPLIANCE CERTIFICATE
----------------------
Reference is made to the Master Agreement (Florida Property) dated as
of December 30, 1999 (as modified and supplemented and in effect from time to
time, the "Master Agreement") among Equifax Inc., PREFCO VI Limited Partnership,
Atlantic Financial Group, Ltd. and SunTrust Bank, Atlanta, as Agent and Lender.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Master Agreement.
Pursuant to Section 5.1(c) of the Master Agreement, (i) ______________,
the duly authorized _______________________ of Equifax Inc. hereby certifies to
the Funding Parties as required by Section 5.1(c) that the information contained
in the Compliance Check List attached hereto is true, accurate and complete as
of __________, _____, and (ii) _______________, the duly authorized
______________________________of Equifax Inc. hereby (A) certifies to the
Funding Parties as required by Section 5.1(c) that to the knowledge of such
officer, no Event of Default or Potential Event of Default is in existence on
and as of the date hereof and (B) restates and reaffirms as required by Section
5.1(c) that to the knowledge of such officer, the representations and warranties
contained in Section 4.1 of the Master Agreement are true on and as of the date
hereof (x) as stated as to representations and warranties which contain
materiality limitations, and (y) in all material respects as to all other
representations and warranties.
Dated this _____ day of ____________, 199/200__.
EQUIFAX INC.
By:
-------------------------------
Title:
COMPLIANCE CHECK LIST
Equifax Inc.
------------------------------
[TO BE COMPLETED]
E-2
EXHIBIT I
TO MASTER AGREEMENT
PAYMENT DATE NOTICE
PREFCO VI Limited Partnership
c/o Atlantic Financial Group, Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Center 127/
Atlanta Corporate Banking
EQUIFAX INC.
------------
Gentlemen and Ladies:
This Payment Date Notice is delivered to you pursuant to Section 2.3(c)
of the Master Agreement (Florida Property), dated as of December 30, 1999
(together with all amendments, if any, from time to time made thereto, the
"Master Agreement"), among Equifax Inc., a Georgia corporation (the "Lessee"),
---------------- ------
PREFCO VI Limited Partnership, as Lessor, Atlantic Financial Group, Ltd. and
SunTrust Bank, Atlanta, as Agent and Lender. Unless otherwise defined herein or
the context otherwise requires, terms used herein have the meanings provided in
the Master Agreement.
The Lessee hereby requests that on ____________, 19/20___,
(1) $___________ of the presently outstanding Funded Amounts
originally made on __________, 19___ [and $__________ of the presently
outstanding Funded Amounts originally made on __________, 19___], and
all presently being maintained as LIBOR Advances,
(2) be continued as,
(3) LIBOR Advances having a Rent Period of ______ months.
The Lessee hereby certifies and warrants that no Potential Event of Default or
Event of Default has occurred and is continuing.
The Lessee has caused this Payment Date Notice to be executed and
delivered, and the certification and warranty contained herein to be made, by
its authorized officer this ___ day of __________, _____.
EQUIFAX INC.
By
-----------------------------------
Name Printed:
---------------------
Title:
----------------------------
I-2
EXHIBIT J
TO MASTER AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
[TO BE A FORM ACCEPTABLE TO LESSEE,
LESSOR AND AGENT, IF APPLICABLE]
SCHEDULE 1.1
LEASED PROPERTY
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, according to map or plat thereof
recorded in Plat Book 107, page 73, of the public records of Pinellas County,
Florida.
SCHEDULE 2.2
PAYMENT INSTRUCTIONS AND
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 3.5%
Lender Commitment Percentage: 96.5%
Lessor Commitment: $811,125.00
Lender Commitment: $22,363,875.00
SCHEDULE 4.100
COMPLIANCE WITH ERISA
None
SCHEDULE 4.1(h)
SUBSIDIARIES
Registrant - Equifax Inc. (a Georgia corporation).
The Registrant owns, directly or indirectly, 100% of the stock of the following
subsidiaries as of March 20, 2000 (all of which are included in the consolidated
financial statements):
State or
Country of
Name of Subsidiary Incorporation
------------------ -------------
Acrofax Inc. (1) Canada
CBI Ventures, Inc. (1) Georgia
CCI Group, Plc (10) England
CCI Trace and Investigation Services Ltd. (11) England
Computer Ventures, Inc. (1) Delaware
Credence, Inc. Georgia
Credit Consultants International Ltd. (11) England
Credit Link (U.K.) Ltd. (11) England
Credit Northwest Corporation (1) Washington
Credit Union Card Services, Inc. (8) Wisconsin
Equifax Accounts Receivable Services, Inc. (owned by Trust) Canada
Equifax Asia Pacific Holdings, Inc. Georgia
Equifax Australia Plc (14) England
Equifax Canada (AFX) Inc. (8) Canada
Equifax Canada Inc. (8) Canada
Equifax Card Services, Inc. (4) Florida
Equifax Card Services (Madison), Inc. (8) Wisconsin
Equifax Card Solutions (18) France
Equifax (Caymen Islands) Ltds. (18) Caymen Islands
Equifax Check Services, Inc. (8) Delaware
Equifax Consumer Services, Inc. Georgia
Equifax Credit Information Services, Inc. Georgia
Equifax Decision Systems, B.V. The Netherlands
Equifax de Mexico Sociedad de Informacion Crediticia, S.A. (8)(9) Mexico
Equifax de Brasil Ltds. (18) Brazil
Equifax E-Banking Solutions, Inc. (4) Georgia
Equifax Europe Inc. Georgia
Equifax Finance (1), Inc. Georgia
Equifax Finance (2), Inc. Georgia
Equifax Healthcare Information Services, Inc. Georgia
Equifax Holdings (Mexico) Inc. Georgia
Equifax Information Technology, Inc. (1) Georgia
Equifax Investments (Mexico) Inc. Georgia
Equifax Investments (U.S.), Inc. Georgia
Equifax Knowledge Engineering, Inc. Arizona
Equifax Ltd. (14) New Zealand
Equifax Luxembourg S.A. (8) Luxembourg
Equifax Luxembourg (No. 2) S.A. Luxembourg
Equifax Mauritius Private Ltd. (7) Philippines
Equifax Payment Services, Inc. Delaware
Equifax Plc (18) England
Equifax Pty Ltd. (18) Australia
Equifax Properties, Inc. Georgia
Equifax-Rochester, Inc. (1) New York
Equifax Secure, Inc. Georgia
Equifax Secure U.K. Ltd. (28) United Kingdom
Equifax SNC (16) France
Equifax South America, Inc. Georgia
Equifax U.K. Finance Ltd. (21) England
Equifax U.K. Finance (No. 2) (20) England
Equifax Ventures, Inc. Georgia
Financial Institution Benefit Association, Inc. (4) District of Columbia
Financial Insurance Marketing Group, Inc. (4) District of Columbia
First Bankcard Systems, Inc. (4) Georgia
Global Scan Ltd. (17) United Kingdom
Global Scan (USA) Inc. (22) Delaware
High Integrity Systems, Inc. (4) California
Infolink Ltd. (14) England
Light Signatures, Inc. (4) Chile
Messagegram Ltd. (11) Chile
Procard (24) Mississippi
Propago (24) Canada
Stewardship, Inc. (1) Ireland
Talecredit Canada, Inc. (2) Ireland
The Equifax Database Company Ltd. (12) England
The Infocheck Group Ltd. (14) England
Transax France Plc (14) England
Ultimate Business Services Plc (14) England
Ultimate Media Concepts Ltd. (11) England
Viv Ltd. (14) England
(1) Subsidiary of Equifax Credit Information Services, Inc.
(2) Subsidiary of Equifax Canada Inc.
(3) Subsidiary of Acrofax Inc.
(4) Subsidiary of Equifax Payment Services, Inc.
(5) Subsidiary of Equifax Card Services, Inc.
(6) Subsidiary of Equifax Card Services (Madison), Inc.
(7) Subsidiary of Equifax Asia Pacific Holdings, Inc.
(8) Subsidiary of Equifax Holdings (Mexico) Inc.
(9) Subsidiary of Equifax Investments (Mexico) Inc.
(10) Subsidiary of Ultimate Business Services Plc
(11) Subsidiary of CCI Group Plc
(12) Subsidiary of Equifax Europe Inc.
(13) Subsidiary of the Equifax Database Company
(14) Subsidiary of Equifax Plc
(15) Subsidiary of Equifax Australia Plc
(16) Subsidiary of Transax France Plc
(17) Subsidiary of The Infocheck Group Ltd.
(18) Subsidiary of Equifax South America, Inc.
(19) Subsidiary of Equifax de Brasil Holdings, Ltda.
(20) Subsidiary of Equifax Luxembourg (No. 2) S.A.
(21) Subsidiary of Equifax Luxembourg S.A.
(22) Subsidiary of Global Scan Ltd.
(23) Subsidiary of Equifax Secure, Inc.
(24) Subsidiary of Equifax de Chile, S.A.
Registrant's subsidiary Equifax Asia Pacific Holdings, Inc. owns 100% of the
stock of Equifax Mauritius Private Ltd. which owns 50% of the stock of Equifax
Venture Infotek Ltd. (India).
Registrant's subsidiary Equifax Europe Inc. owns 49% of the stock of Precision
Marketing Information Ltd. (Ireland) and 58% of the stock of Equifax Iberica,
S.A. (Spain). Equifax Iberica S.A., owns 95% of the stock of ASNEF-Equifax
Servicios de Informacion de Credito, S.L. (Spain); 100% of the stock of Dicodi,
S.A. (Spain); 100% of the stock of Informacion Tecnica Del Credito S.L. (Spain);
100% of the stock of Via Ejecutiva S.A. (Spain); and owns 50% of the stock of
Credinformacoes, Informacoes de Credito, LDA (Portugal), along with Equifax
Decision Systems, B.V., wholly-owned subsidiary of Equifax Inc., which owns 25%.
Registrant's subsidiary Equifax South America, Inc. owns 66% of the stock of
Organisacion Veraz S.A. (Argentina) and 99% of the stock of Equifax de Chile,
S.A. (Chile). Equifax de Chile, S.A. owns 100% of the stock of Dicom, S.A.
(Chile) which owns 100% of the stock of Cobranza Integral S.A. (Chile); 51% of
the stock of Dicom CentroAmerica (El Salvador); 51% of the stock of InfoCorp
S.A. (Peru); and 100% of the stock of Equifax Peru Srl. Registrant's subsidiary
Equifax de Brasil Ltda. owns 80% of the stock of Equifax de Brasil Ltda. (SCI);
59.336% of the stock of ▇▇▇▇▇▇ - Solucoes ern Maios de Pagamento Ltda. (Brazil);
and 51% of the stock of Partech Ltda.
Registrant's subsidiary Equifax Plc owns 51% of the stock of Equifax Card
Solutions Ltd. (England).
Schedule 4.1(n)
Environmental Matters
No properties have been identified on any current or proposed National
Priorities List under 40 C.F.R. Section 300, CERCLIS list, or any list arising
from state statutes similar to CERCLA.
Two buried diesel tanks are located at the Equifax Payment Services site in
Tampa, Florida. These tanks have been inspected by the EPA and found not to be
in violation of EPA laws.
Each of Lessees and each of the Subsidiaries have procured all Environmental
Authorizations necessary for the conduct of the business, and is in compliance
with all Environmental Requirements in connection with the operation of the
Properties and each of Lessees and each of the Consolidated Subsidiary's
respective businesses, except in such instances where such failure of compliance
would not have a Material Adverse Effect.
Any particular matter disclosed in the environmental reports delivered by or on
behalf or Lessee in connection with this Master Agreement or any Operative
Documents.
SCHEDULE 5.12
HAZARDOUS MATERIALS
None
Schedule 5.18
Liens existing on the date of this Agreement are as follows:
1. Liens constituting capitalized computer equipment leases of The Infocheck
Group Limited, as debtor, securing pounds sterling (pound)27,733 British
pounds sterling.
2. Liens constituting capitalized telephone and computer equipment leases of
Equifax Plc, as debtor, securing (pound)483,846 British pounds sterling.
================================================================================
LOAN AGREEMENT
Dated as of December 30, 1999
among
PREFCO VI LIMITED PARTNERSHIP,
as Lessor and Borrower,
the financial institutions party hereto,
as Lenders
and
SUNTRUST BANK, ATLANTA,
as Agent
================================================================================
(Equifax Inc. Florida Property)
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS; INTERPRETATION...................................... 1
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND
PREPAYMENT OF LOANS............................................ 1
SECTION 2.1 Commitment....................................... 1
SECTION 2.2 Notes............................................ 1
SECTION 2.3 Scheduled Principal Repayment.................... 2
SECTION 2.4 Interest......................................... 2
SECTION 2.5 Prepayment....................................... 3
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN
PAYMENTS IN RESPECT OF LEASE AND LEASED PROPERTY............... 3
SECTION 3.1 Distribution and Application of Rent
Payments......................................... 3
SECTION 3.2 Distribution and Application of Purchase
Payment.......................................... 3
SECTION 3.3 Distribution and Application to Funding
Party Balances of Lessee Payment of
Recourse Deficiency Amount Upon Exercise
of Remarketing Option............................ 3
SECTION 3.4 Distribution and Application to Funding
Party Balance of Remarketing Proceeds of
Leased Property.................................. 4
SECTION 3.5 Distribution and Application of Payments
Received When an Event of Default Exists
or Has Ceased to Exist Following
Rejection of a Lease............................. 4
SECTION 3.6 Distribution of Other Payments................... 5
SECTION 3.7 Timing of Agent Distributions.................... 5
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER THE LEASE
AND OPERATIVE GUARANTY......................................... 6
SECTION 4.1 Covenant of Lessor............................... 6
SECTION 4.2 Lessor Obligations Nonrecourse; Payment
from Certain Lease and Operative
Guaranty Obligations and Certain
Proceeds of Leased Property Only................. 6
SECTION 4.3 Exercise of Remedies Under the Lease and
Operative Guaranty............................... 7
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES................................. 8
SECTION 5.1 Loan Events of Default........................... 8
SECTION 5.2 Loan Event of Default; Remedies.................. 9
SECTION 6 THE AGENT........................................................ 10
SECTION 6.1 Appointment...................................... 10
-i-
SECTION 6.2 Delegation of Duties............................. 10
SECTION 6.3 Exculpatory Provisions........................... 10
SECTION 6.4 Reliance by Agent................................ 11
SECTION 6.5 Notice of Default................................ 11
SECTION 6.6 Non-Reliance on Agent and Other Lenders.......... 12
SECTION 6.7 Indemnification.................................. 12
SECTION 6.8 Agent in Its Individual Capacity................. 13
SECTION 6.9 Successor Agent.................................. 13
SECTION 7 MISCELLANEOUS.................................................... 14
SECTION 7.1 Amendments and Waivers........................... 14
SECTION 7.2 Notices.......................................... 14
SECTION 7.3 No Waiver; Cumulative Remedies................... 14
SECTION 7.4 Successors and Assigns........................... 14
SECTION 7.5 Counterparts..................................... 14
SECTION 7.6 GOVERNING LAW.................................... 14
SECTION 7.7 Survival and Termination of Agreement............ 14
SECTION 7.8 Entire Agreement................................. 15
SECTION 7.9 Severability..................................... 15
APPENDIX A Definitions and Interpretation
EXHIBITS
EXHIBIT A-1 Form of A Note
EXHIBIT A-2 Form of B Note
-ii-
THIS LOAN AGREEMENT (as it may be amended or modified from time
to time in accordance with the provisions hereof, this "Loan Agreement")
--------------
dated as of December 30, 1999 is between PREFCO VI LIMITED PARTNERSHIP, a
Connecticut general partnership, as Lessor and Borrower (the "Lessor"); SUNTRUST
------
BANK, ATLANTA and the other financial institutions which may from time to time
become party hereto as lenders (the "Lenders") and SUNTRUST BANK, ATLANTA, a
-------
Georgia banking corporation as agent for the Lenders (the "Agent").
-----
PRELIMINARY STATEMENT
In accordance with the terms and provisions of the Master Agreement,
the Lease, this Loan Agreement and the other Operative Documents, (i) the Lessor
contemplates owning and leasing the Leased Property to the Lessee, (ii) the
Lessor wishes to obtain, and the Lenders are willing to provide, financing to
the Lessor, which financing will be secured by the Leased Property, and (iv) the
Lessee is willing to provide its Operative Guaranty to the Agent and the Funding
Parties.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A hereto
----------
for all purposes hereof; and the rules of interpretation set forth in Appendix A
----------
hereto shall apply to this Loan Agreement.
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT
OF LOANS
SECTION 2.1 Commitment. Subject to the terms and conditions hereof
----------
and of the Master Agreement, each Lender agrees to make term loans to the Lessor
("Loans") on the Closing Date, in the amounts required under Section 2.2 of the
-----
Master Agreement. Each such Loan shall consist of an A Loan in the amount of
such Lender's Commitment Percentage of the A Percentage of the aggregate amount
to be funded by the Funding Parties on such date and a B Loan in the amount of
such Lender's Commitment Percentage of the B Percentage of the aggregate amount
to be funded by the Funding Parties on such date.
SECTION 2.2 Notes. The A Loans made by each Lender to the Lessor
-----
shall be evidenced by a note of the Lessor (an "A Note"), substantially in the
------
form of Exhibit A-1 with appropriate insertions, and the B Loans made by each
-----------
Lender to the Lessor
shall be evidenced by a note of the Lessor (a "B Note") substantially in the
------
form of Exhibit A-2 with appropriate insertions, each duly executed by the
-----------
Lessor and payable to the order of such Lender and in a principal amount equal
to such Lender's Commitment Percentage of the A Percentage of the aggregate
Commitments of the Funding Parties and the B Percentage of the aggregate
Commitments of the Funding Parties, respectively (or, if less, the aggregate
unpaid principal amount of all A Loans or B Loans, as the case may be, made by
such Lender to the Lessor). The Notes shall be dated the Closing Date and
delivered to the Agent in accordance with Section 3.1 of the Master Agreement.
Each Lender is hereby authorized to record the date and amount of each Loan made
by such Lender to the Lessor on the Notes, but the failure by such Lender to so
record such Loan shall not affect or impair any obligations with respect
thereto. Each Note shall (i) be stated to mature no later than the Lease
Termination Date and (ii) bear interest on the unpaid principal amount thereof
from time to time outstanding at the applicable interest rate per annum
determined as provided in, and payable as specified in, Section 2.4. Upon the
-----------
occurrence of an Event of Default under clause (g) of Article XII of the Lease,
---------- -----------
or upon Acceleration as described in Section 4.3(b) hereof, each Note shall
--------------
automatically become due and payable in full.
SECTION 2.3 Scheduled Principal Repayment. On the Lease Termination
-----------------------------
Date, the Lessor shall pay the aggregate unpaid principal amount of all Loans as
of such date.
SECTION 2.4 Interest. (a) Each Loan shall bear interest during the
--------
initial Rent Period ending January 14, 2000 at a rate per anum equal to the sum
of the Adjusted London Interbank Offered Rate for 30-day periods plus 0.475%
computed using the actual number of days elapsed and a 360 day year and each
subsequent Rent Period at a rate per annum equal to the sum of the Adjusted
London Interbank Offered Rate for such Rent Period plus 0.475%, computed using
the actual number of days elapsed and a 360 day year.
(b) If all or a portion of the principal amount of or interest on the
Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall, without limiting the
rights of the Lenders under Section 5, bear interest at the Overdue Rate, in
---------
each case from the date of nonpayment until paid in full (as well after as
before judgment).
(c) Following the date each Loan is made, interest on such Loan shall
be payable in arrears on each Payment Date with respect thereto.
2
SECTION 2.5 Prepayment. Except in conjunction with a payment by the
----------
Lessee of the Lease Balance pursuant to the terms of the Lease, the Lessor shall
have no right to prepay the Loans.
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS
IN RESPECT OF LEASE AND LEASED PROPERTY
SECTION 3.1 Distribution and Application of Rent Payments.
---------------------------------------------
(a) Basic Rent. Each payment of Basic Rent (and any payment of
----------
interest on overdue installments of Basic Rent) received by the Agent shall be
distributed first, pro rata to the Lenders to be applied to the amounts of
-----
accrued and unpaid interest (including overdue interest) on the Loans and
second, to the Lessor to be applied to accrued and unpaid Yield (including
------
overdue Yield) on the Lessor's Invested Amounts.
(b) Supplemental Rent. Each payment of Supplemental Rent received by
-----------------
the Agent shall be paid to or upon the order of the Person owed the same.
SECTION 3.2 Distribution and Application of Purchase Payment. The
------------------------------------------------
payment by the Lessee of:
(a) the purchase price for a consummated sale of the Leased
Property received by the Agent in connection with the Lessee's exercise
of the Purchase Option under Section 14.1 of the Lease, or
(b) the Lessee's compliance with its obligation to purchase
the Leased Property in accordance with Section 14.2 or 14.3 of the
Lease, or
(c) the payment by the Lessee to Agent of the Lease Balance
in accordance with Section 10.1 or Section 10.2 of the Lease,
shall be distributed by Agent as promptly as possible first, to the Lenders, pro
----- ---
rata in accordance with, and for application to, their respective Funding Party
----
Balances and second, to the Lessor for application to its Funding Party Balance.
------
SECTION 3.3 Distribution and Application to Funding Party Balances of
---------------------------------------------------------
Lessee Payment of Recourse Deficiency Amount Upon Exercise of Remarketing
-------------------------------------------------------------------------
Option. The payment by the Lessee of the Recourse Deficiency Amounts to the
------
Agent on the Lease Termination Date in accordance with Section 14.6 or 14.7 of
the Lease upon the Lessee's exercise of the Remarketing Option, shall be applied
by the Agent to the accrued and unpaid interest on, and the outstanding
principal of, the A Loans.
3
SECTION 3.4 Distribution and Application to Funding Party Balance of
--------------------------------------------------------
Remarketing Proceeds of Leased Property. Any payments received by the Lessor as
---------------------------------------
proceeds from the sale of the Leased Property sold pursuant to the Lessee's
exercise of the Remarketing Option pursuant to Section 14.6 or 14.7 of the
Lease, shall be distributed by the Lessor as promptly as possible in the
following order of priority:
first, to the Lenders pro rata for application to their
----- --- ----
remaining Funding Party Balances, an amount equal to their
Funding Party Balances; and
second, to the Lessor for application to its Funding Party
------
Balance; and
third, (i) if sold by the Lessee pursuant to Section 14.6 of
-----
the Lease, to the Lessee, the excess, if any, and (ii) otherwise, to
the Lessor.
SECTION 3.5 Distribution and Application of Payments Received
-------------------------------------------------
When an Event of Default Exists or Has Ceased to Exist Following Rejection of a
-------------------------------------------------------------------------------
Lease.
-----
(a) Proceeds of Leased Property. Any payments received by the Lessor
---------------------------
or the Agent when an Event of Default exists (or has ceased to exist by reason
of a rejection of the Lease in a proceeding with respect to the Lessee described
in Article XII(k) of the Lease), as
(i) proceeds from the sale of the Leased Property sold
pursuant to the exercise of the Lessor's remedies pursuant to Article
XIII of the Lease, or
(ii) proceeds of any amounts from any insurer or any
Governmental Authority in connection with an Event of Loss or an Event
of Taking
shall if received by the Lessor be paid to the Agent as promptly as possible,
and shall be distributed or applied in the following order of priority prior to
the Release Date:
first, to the Agent for any amounts expended by it in
-----
connection with the Leased Property or the Operative
Documents and not previously reimbursed to it;
second, to the Lenders pro rata for application to
------
their Funding Party Balances, an amount equal to such
Funding Party Balances;
third, to the Lessor for application to its Funding
-----
Party Balance; and
4
fourth, to the Lessee or the Person or Persons otherwise
------
legally entitled thereto, the excess, if any; and
on and after such Release Date such amounts shall be paid over to the Lessor and
shall be distributed by the Lessor, first to the Lessor for application to any
-----
amounts owed to it, and second to the Lessee or the Person or Persons otherwise
------
legally entitled thereto, the excess, if any.
(b) Proceeds of Recoveries from Lessee and Guarantor. Any received by
------------------------------------------------
any Funding Party when an Event of Default exists (or has ceased to exist by
reason of a rejection of the Lease in a proceeding with respect to the Lessee
described in Article XII(k) of the Lease), from
(i) the Lessee as a payment in accordance with a Lease, or
(ii) the Guarantor as a payment in accordance with the
Operative Guaranty, including, without limitation, any payment made by
the Guarantor in satisfaction of the guaranty of payment of the Notes
pursuant to the Operative Guaranty,
shall be paid to the Agent as promptly as possible, and shall then be
distributed as applied by the Agent as promptly as possible in the order of
priority set forth in paragraph (a) above.
-------------
SECTION 3.6 Distribution of Other Payments. All payments under
------------------------------
Section 7.11 of the Master Agreement shall be made first, to the Lenders, pro
----- ---
rata, until their Funding Party Balances have been paid in full, and second, to
---- ------
the Lessor who shall be entitled to retain all such remaining amounts. Except as
otherwise provided in this Section 3, any payment received by the Lessor which
---------
is to be paid to Agent pursuant hereto or for which provision as to the
application thereof is made in an Operative Document but not elsewhere in this
Section 3 shall, if received by the Lessor, be paid forthwith to the Agent and
---------
when received shall be distributed forthwith by the Agent to the Person and for
the purpose for which such payment was made in accordance with the terms of such
Operative Document.
SECTION 3.7 Timing of Agent Distributions. Payments received by the
-----------------------------
Agent in immediately available funds before 12:00 p.m. (noon), Atlanta, Georgia
time, on any Business Day shall be distributed to the Funding Parties in
accordance with and to the extent provided in this Section 3 on such Business
---------
Day. Payments received by the Agent in immediately available funds after 12:00
p.m. (noon), Atlanta, Georgia time shall be
5
distributed to the Funding Parties in accordance with and to the extent provided
in this Section 3 on the next Business Day.
---------
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER THE LEASE AND
OPERATIVE GUARANTY
SECTION 4.1 Covenant of Lessor. So long as any Loan remains
------------------
outstanding and unpaid or any other amount is owing to any Lender with respect
to its Funding Party Balances, subject to Section 4.2, the Lessor will promptly
-----------
pay all amounts payable by it under this Loan Agreement and the Notes issued by
it in accordance with the terms hereof and thereof and shall duly perform each
of its obligations under this Loan Agreement and the Notes. The Lessor agrees to
provide to the Agent a copy of each estoppel certificate that the Lessor
proposes to deliver pursuant to Section 17.13 of the Lease at least five (5)
days prior to such delivery and to make any corrections thereto reasonably
requested by the Agent prior to such delivery. The Lessor shall keep the Leased
Property free and clear of all Lessor Liens. The Lessor shall not reject any
sale of the Leased Property pursuant to Section 14.6 of the Lease unless all of
the Loans have been paid in full or the Lenders consent to such rejection. In
the event that the Lenders reject any sale of the Leased Property pursuant to
Section 14.6 of the Lease, the Lessor agrees to take such action as the Lenders
reasonably request to effect a sale or other disposition of the Leased Property,
provided that the Lessor shall not be required to expend its own funds in
--------
connection with such sale or disposition.
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain
----------------------------------------------------
Lease and Operative Guaranty Obligations and Certain Proceeds of Leased Property
--------------------------------------------------------------------------------
Only. All payments to be made by the Lessor in respect of the Loans, the Notes
----
and this Loan Agreement shall be made only from certain payments received under
the Lease and the Operative Guaranty and certain proceeds of the Leased Property
and only to the extent that the Lessor or the Agent shall have received
sufficient payments from such sources to make payments in respect of the Loans
in accordance with Section 3. Each Lender agrees that it will look solely to
---------
such sources of payments to the extent available for distribution to such Lender
as herein provided and that neither the Lessor nor the Agent is or shall be
personally liable to any Lender for any amount payable hereunder or under any
Note. Nothing in this Loan Agreement, the Notes or any other Operative Document
shall be construed as creating any liability (other than for willful misconduct,
gross negligence, misrepresentation or breach of contract (other than the
failure to make payments in respect of the Loans)) of the Lessor individually to
pay any sum or to perform any covenant, either express or implied, in this Loan
Agreement, the Notes or any other Operative Documents (all such liability, if
any, being expressly waived by each Lender) and
6
that each Lender, on behalf of itself and its successors and assigns, agrees in
the case of any liability of the Lessor hereunder or thereunder (except for such
liability attributable to its willful misconduct, gross negligence,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Loans)) that it will look solely to those certain payments
received under the Lease and the Operative Guaranty and those certain proceeds
of the Leased Property, provided, however, that the Lessor in its individual
-------- -------
capacity shall in any event be liable with respect to (i) the removal of
Lessor's Liens or involving its gross negligence, willful misconduct,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Loans) or (ii) failure to turn over payments the Lessor has
received in accordance with Section 3; and provided further that the foregoing
--------- -------- -------
exculpation of the Lessor shall not be deemed to be exculpations of the Lessee,
the Guarantor or any other Person.
SECTION 4.3 Exercise of Remedies Under the Lease and Operative
--------------------------------------------------
Guaranty.
--------
(a) Event of Default. With respect to any Potential Event of Default
----------------
as to which notice thereof by the Lessor to the Lessee is a requirement to cause
such Potential Event of Default to become an Event of Default, the Lessor may at
any time in its discretion give such notice, provided that the Lessor agrees to
--------
give such notice to such Lessee promptly upon receipt of a written request by
any Lender or the Agent.
(b) Acceleration of Lease Balance. When an Event of Default exists,
-----------------------------
the Lessor, upon the direction of the Required Funding Parties, shall exercise
remedies under Article XIII of the Lease and the Operative Guaranty to demand
payment in full of the Lease Balances by the Lessee or the Guarantor (the
"Acceleration"). Following the Acceleration, the Lessor shall consult with the
------------
Lenders regarding actions to be taken in response to such Event of Default. The
Lessor (1) shall not, without the prior written consent of Required Funding
Parties and (2) shall (subject to the provisions of this Section), if so
-------
directed by Required Lenders, do any of the following: commence eviction or
foreclosure proceedings, or make a demand under the Operative Guaranty, or file
a lawsuit against the Lessee under the Lease, or file a lawsuit against the
Guarantor under the Operative Guaranty, or sell the Leased Property, or exercise
other remedies against the Lessee or the Guarantor under the Operative Documents
in respect of such Event of Default; provided, however, that any payments
-------- -------
received by the Lessor shall be distributed in accordance with Section 3.
---------
Notwithstanding any such consent, direction or approval by the Required Funding
Parties of any such action or omission, the Lessor shall not have any obligation
to follow such direction if the same would, in the
7
Lessor's reasonable judgment, require the Lessor to expend its own funds or
expose the Lessor to liability, expense, loss or damages unless and until the
Lenders advance to the Lessor an amount which is sufficient, in the Lessor's
reasonable judgment, to cover such liability, expense, loss or damage (excluding
the Lessor's pro rata share thereof, if any). Notwithstanding the foregoing, on
and after the Release Date, the Lenders shall have no rights to the Leased
Property or any proceeds thereof, the Lenders shall have no rights to direct or
give consent to any actions with respect to the Leased Property and the proceeds
thereof, the Lessor shall have absolute discretion with respect to such exercise
of remedies with respect to the Leased Property, and the proceeds thereof,
including, without limitation, any foreclosure or sale of the Leased Property,
and the Lessor shall have no liability to the Lenders with respect to the
Lessor's actions or failure to take any action with respect to the Leased
Property.
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES
SECTION 5.1 Loan Events of Default. Each of the following events
----------------------
shall constitute a Loan Event of Default (whether any such event shall be
voluntary or involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any Governmental Authority) and each such Loan
Event of Default shall continue so long as, but only as long as, it shall not
have been remedied:
(a) Lessor shall fail to distribute in accordance with the
provisions of Section 3 any amount received by the Lessor pursuant to
---------
the Lease, the Operative Guaranty or the Master Agreement within two
(2) Business Days of receipt thereof if and to the extent that the
Agent or the Lenders are entitled to such amount or a portion thereof;
or
(b) the Lessor shall fail to pay to the Agent, within two
(2) Business Days of the Lessor's receipt thereof, any amount which the
Lessee or the Guarantor is required, pursuant to the Operative
Documents, to pay to the Agent but erroneously pays to the Lessor; or
(c) failure by the Lessor to perform in any material respect
any other covenant or condition herein or in any other Operative
Document to which the Lessor is a party, which failure shall continue
unremedied for thirty (30) days after receipt by the Lessor of written
notice thereof from the Agent or any Lender; or
(d) any representation or warranty of the Lessor contained
in any Operative Document or in any certificate
8
required to be delivered thereunder shall prove to have been incorrect
in a material respect when made and shall not have been cured within
thirty (30) days of receipt by the Lessor of written notice thereof
from the Agent or any Lender; or
(e) the Lessor or any General Partner shall become bankrupt
or make an assignment for the benefit of creditors or consent to the
appointment of a trustee or receiver; or a trustee or a receiver shall
be appointed for the Lessor or any General Partner or for substantially
all of its property without its consent and shall not be dismissed or
stayed within a period of sixty (60) days; or bankruptcy,
reorganization or insolvency proceedings shall be instituted by or
against the Lessor or any General Partner and, if instituted against
the Lessor or any General Partner, shall not be dismissed or stayed for
a period of sixty (60) days; or
(f) any Event of Default under the Lease shall occur and be
continuing.
SECTION 5.2 Loan Event of Default; Remedies.
-------------------------------
(a) Upon the occurrence of a Loan Event of Default hereunder, (i) if
such event is a Loan Event of Default specified in clause (e) of Section 5.1
---------- -----------
with respect to the Lessor, automatically the outstanding principal of, and
accrued interest on, the Loans shall be immediately due and payable, and (ii) if
such event is any other Loan Event of Default, upon written request of the
Required Lenders, the Agent shall, by notice of default to the Lessor, declare
the outstanding principal of, and accrued interest on, the Loans to be
immediately due and payable, whereupon the outstanding principal of, and accrued
interest on, the Loans shall become immediately due and payable.
(b) When a Loan Event of Default exists, the Agent may, and upon the
written instructions of the Required Lenders shall, exercise any or all of the
rights and powers and pursue any and all of the remedies available to it
hereunder, under the Notes, the Mortgage and the Assignment of Lease and Rents
and shall have and may exercise any and all rights and remedies available under
the Uniform Commercial Code or any provision of law. When a Loan Event of
Default exists, the Agent may, and upon the written instructions of the Required
Lenders shall, have the right to exercise all rights of the Lessor under the
Lease pursuant to the terms and in the manner provided for in the Mortgage and
the Assignment of Lease and Rents.
(c) Except as expressly provided above, no remedy under this Section
-------
5.2 is intended to be exclusive, but each shall be cumulative and in addition to
---
any other remedy provided under
9
this Section 5.2 or under the other Operative Documents or otherwise available
-----------
at law or in equity. The exercise by the Agent or any Lender of any one or more
of such remedies shall not preclude the simultaneous or later exercise of any
other remedy or remedies. No express or implied waiver by the Agent or any
Lender of any Loan Event of Default shall in any way be, or be construed to be,
a waiver of any future or subsequent Loan Event of Default. The failure or delay
of the Agent or any Lender in exercising any rights granted it hereunder upon
any occurrence of any of the contingencies set forth herein shall not constitute
a waiver of any such right upon the continuation or recurrence of any such
contingencies or similar contingencies and any single or partial exercise of any
particular right by the Agent or any Lender shall not exhaust the same or
constitute a waiver of any other right provided herein.
SECTION 6 THE AGENT
SECTION 6.1 Appointment. Each Lender hereby irrevocably designates
-----------
and appoints the Agent as the agent of such Lender under this Loan Agreement and
the other Operative Documents, and each such Lender irrevocably authorizes the
Agent, in such capacity, to take such action on its behalf under the provisions
of this Loan Agreement and the other Operative Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Loan Agreement and the other Operative Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Loan Agreement, the Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Operative Document or otherwise exist against the
Agent.
SECTION 6.2 Delegation of Duties. The Agent may execute any of its
--------------------
duties under this Loan Agreement and the other Operative Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in- fact
selected by it with reasonable care.
SECTION 6.3 Exculpatory Provisions. Neither the Agent nor any of its
----------------------
officers, directors, employees, agents, attorneys- in-fact or Affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Loan Agreement or any other Operative
Document (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of
10
the Lenders for any recitals, statements, representations or warranties made by
the Lessor, the Guarantor or the Lessee or any officer thereof contained in this
Loan Agreement or any other Operative Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Loan Agreement or any other Operative
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Loan Agreement or any other Operative Document or for any
failure of the Lessor, the Guarantor or the Lessee to perform its obligations
hereunder or thereunder. The Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Loan Agreement or any other
Operative Document, or to inspect the properties, books or records of the
Lessor, the Guarantor or the Lessee.
SECTION 6.4 Reliance by Agent. The Agent shall be entitled to rely,
-----------------
and shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Lessor, the Guarantor or the Lessee), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent. The Agent shall be fully justified in failing or refusing
to take any action under this Loan Agreement or any other Operative Document
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Funding Parties against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Loan Agreement and the other Operative Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
SECTION 6.5 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Loan Potential Event of Default or
Loan Event of Default hereunder unless the Agent has received notice from a
Lender referring to this Loan Agreement, describing such Loan Potential Event of
Default or Loan Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such
11
a notice, the Agent shall give notice thereof to the Lenders. The Agent shall
take such action with respect to such Loan Potential Event of Default or Loan
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Agent shall have received such directions,
--------
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Loan Potential Event of Default or Loan
Event of Default as it shall deem advisable in the best interests of the
Lenders.
SECTION 6.6 Non-Reliance on Agent and Other Lenders. Each Lender
---------------------------------------
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Lessor, the Guarantor or the
Lessee, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Lessor, the Guarantor
and the Lessee and made its own decision to make its Loans hereunder and enter
into this Loan Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Loan Agreement and the other Operative Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Lessor, the Guarantor and the Lessee. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Lessor, the Guarantor or the
Lessee which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 6.7 Indemnification. The Lenders agree to indemnify the
---------------
Agent in its capacity as such (to the extent not reimbursed by the Lessee or
Guarantor and without limiting the obligation of the Lessee or Guarantor to do
so), ratably according to the percentage each Lender's Loans bears to the total
Loans of all of the Lenders on the date on which indemnification is sought under
this Section 6.7, from and
-----------
12
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Commitments,
this Loan Agreement, any of the other Operative Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
--------
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. The
agreements in this Section 6.7 shall survive the payment of the Notes and all
-----------
other amounts payable hereunder.
SECTION 6.8 Agent in Its Individual Capacity. The Agent and its
--------------------------------
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Lessor, the Guarantor or the Lessee as though the
Agent were not the Agent hereunder and under the other Operative Documents. With
respect to Loans made or renewed by it and any Note issued to it, the Agent
shall have the same rights and powers under this Loan Agreement and the other
Operative Documents as any Lender and may exercise the same as though it were
not the Agent, and the terms "Lender" and "Lenders" shall include the Agent in
its individual capacity. Each Lender acknowledges that the Agent in its
individual capacity has had and continues to have other business relations and
transactions with the Lessee.
SECTION 6.9 Successor Agent. The Agent may resign as Agent upon 20
---------------
days' notice to the Lenders. If the Agent shall resign as Agent under this Loan
Agreement and the other Operative Documents, then the Required Lenders shall
appoint a successor agent for the Lenders, which successor agent shall be a
commercial bank organized under the laws of the United States of America or any
State thereof or under the laws of another country which is doing business in
the United States of America and having a combined capital, surplus and
undivided profits of at least $100,000,000, whereupon such successor agent shall
succeed to the rights, powers and duties of the Agent, and the term "Agent"
shall mean such successor agent effective upon such appointment and approval,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Loan Agreement or any holders of the Notes. After any
retiring Agent's resignation as Agent, all of the provisions of this Section 6
---------
shall inure to its benefit as to any
13
actions taken or omitted to be taken by it while it was Agent under this Loan
Agreement and the other Operative Documents.
SECTION 7 MISCELLANEOUS
SECTION 7.1 Amendments and Waivers. Neither this Loan Agreement, any
----------------------
Note, nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of Section 8.4 of the Master Agreement.
SECTION 7.2 Notices. Unless otherwise specified herein, all notices,
-------
requests, demands or other communications to or upon the respective parties
hereto shall be given in accordance with Section 8.2 of the Master Agreement.
SECTION 7.3 No Waiver; Cumulative Remedies. No failure to exercise
------------------------------
and no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
SECTION 7.4 Successors and Assigns. This Loan Agreement shall be
----------------------
binding upon and inure to the benefit of the Lessor, the Agent, the Lenders, all
future holders of the Notes and their respective successors and permitted
assigns.
SECTION 7.5 Counterparts. This Loan Agreement may be executed by one
------------
or more of the parties to this Loan Agreement on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. A set of the counterparts of this Loan
Agreement signed by all the parties hereto shall be lodged with the Lessor and
the Agent.
SECTION 7.6 GOVERNING LAW. THIS LOAN AGREEMENT AND THE NOTES AND THE
-------------
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS LOAN AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF GEORGIA.
SECTION 7.7 Survival and Termination of Agreement. All covenants,
-------------------------------------
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Loan Agreement, and the Notes and
shall continue in full force and effect so long as any Note or any amount
14
payable to any Lender under or in connection with this Loan Agreement or the
Notes is unpaid, at which time this Loan Agreement shall terminate.
SECTION 7.8 Entire Agreement. This Loan Agreement and the other
----------------
Operative Documents sets forth the entire agreement of the parties hereto with
respect to its subject matter, and supersedes all previous understandings,
written or oral, with respect thereto.
SECTION 7.9 Severability. Any provision of this Loan Agreement or of
------------
the Notes which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of any such provision in any other jurisdiction.
15
IN WITNESS THEREOF, the parties hereto have caused this Loan
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
SUNTRUST BANK, ATLANTA, as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Director
--------------------------
FLORIDA LOAN AGREEMENT
S-1
PREFCO VI LIMITED PARTNERSHIP, as
Lessor and Borrower
By: AFG PREFCO GP, LLC, a Texas
limited liability company, as
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
President
FLORIDA LOAN AGREEMENT
S-2
SUNTRUST BANK, ATLANTA, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Director
------------------------------
FLORIDA LOAN AGREEMENT
S-3
================================================================================
OPERATIVE GUARANTY
from
EQUIFAX INC.
Dated as of December 30, 1999
================================================================================
[Florida Property]
TABLE OF CONTENTS
Page
SECTION 1. Operative Guaranty.................................................1
SECTION 2. Bankruptcy.........................................................2
SECTION 3. Right of Set-Off...................................................3
SECTION 4. Continuing Operative Guaranty......................................3
SECTION 5. Reinstatement......................................................3
SECTION 6. Certain Actions....................................................3
SECTION 7. Application........................................................4
SECTION 8. Waiver.............................................................4
SECTION 9. Assignment.........................................................4
SECTION 10. Miscellaneous......................................................5
OPERATIVE GUARANTY
------------------
THIS OPERATIVE GUARANTY, dated as of December 30, 1999, is made by
Equifax Inc., a Georgia corporation (the "Guarantor").
---------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Guarantor as Lessee and Guarantor, PREFCO VI Limited
Partnership as Lessor, Atlantic Financial Group, Ltd., Atlantic Financial
Managers, Inc., and SunTrust Bank, Atlanta, as Agent and Lender, have entered
into that certain Master Agreement (Florida Property), dated as of December 30,
1999 (as it may be modified, amended or restated from time to time as and to the
extent permitted thereby, the "Master Agreement"; and, unless otherwise defined
----------------
herein, terms which are defined or defined by reference in the Master Agreement
(including Appendix A thereto) shall have the same meanings when used herein as
such terms have therein); and
WHEREAS, it is a condition precedent to the Funding Parties
consummating the transactions to be consummated on the Closing Date that the
Guarantor execute and deliver this Operative Guaranty; and
WHEREAS, it is in the best interests of the Guarantor that the
transactions contemplated by the Master Agreement be consummated on the Closing
Date; and
WHEREAS, this Operative Guaranty, and the execution, delivery and
performance hereof, have been duly authorized by all necessary corporate action
of the Guarantor; and
WHEREAS, this Operative Guaranty is offered by the Guarantor as an
inducement to the Funding Parties to consummate the transactions contemplated in
the Master Agreement, which transactions, if consummated, will be of benefit to
the Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantor, the Guarantor hereby agrees as follows:
SECTION 1. Operative Guaranty. The Guarantor hereby unconditionally
------------------
guarantees the full and prompt payment when due, whether by acceleration or
otherwise, and at all times thereafter, and the full and prompt performance, of
all of the Liabilities (as hereinafter defined), including interest and earnings
on any such Liabilities whether accruing before or after any bankruptcy or
insolvency case or proceeding involving the Guarantor or any other Person and,
if interest or earnings on any portion of such obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding,
including such interest and yield as would have accrued on any such portion of
such obligations if such case or proceeding had not commenced, and further
agrees to pay all reasonable expenses (including reasonable attorneys' fees and
legal expenses actually incurred) actually paid or incurred by each of the
Funding Parties in endeavoring to collect the Liabilities, or any part thereof,
and in enforcing this Operative Guaranty. The term "Liabilities", as used
-----------
herein, shall mean all of the following, in each case howsoever created, arising
or evidenced, whether direct or indirect, joint or several, absolute or
contingent, or now or hereafter existing, or due or to become due: (i) all
amounts payable by the Lessee under the Lease (including, without limitation,
Basic Rent, Supplemental Rent and Recourse Deficiency Amounts), the Master
Agreement or any other Operative Document, and (ii) all principal of the Notes
and interest accrued thereon, Loans, accrued Yield and all additional amounts
and other sums at any time due and owing, and required to be paid, to the
Funding Parties under the terms of the Master Agreement, the Loan Agreement, the
Assignment of Lease and Rent, the Mortgage, the Notes or any other Operative
Document; provided, however, that whether or not a Loan Event of Default exists
-------- -------
that is not an Event of Default under the Lease, the Guarantor will not be
obligated to pay under this Operative Guaranty any amounts greater or earlier
than the Lessee would have had to pay, under the Lease, the Master Agreement and
the other Operative Documents assuming that such documents were enforced in
accordance with their terms (and without giving effect to any discharge or
limitation thereon resulting or arising by reason of the bankruptcy or
insolvency of the Lessee), plus all actual and reasonable costs of enforcing
this Operative Guaranty.
By way of extension but not in limitation of any of its other
obligations hereunder, the Guarantor stipulates and agrees that in the event any
foreclosure proceedings are commenced and result in the entering of a
foreclosure judgment, any such foreclosure judgment, to the extent related to
the Liabilities, shall be treated as part of the Liabilities, and the Guarantor
2
unconditionally guarantees the full and prompt payment of such judgment.
SECTION 2. Bankruptcy. The Guarantor agrees that, in the event of the
----------
dissolution, bankruptcy or insolvency of the Guarantor, or the inability or
failure of the Guarantor generally to pay debts as they become due, or an
assignment by the Guarantor for the benefit of creditors, or the commencement of
any case or proceeding in respect of the Guarantor under any bankruptcy,
insolvency or similar laws, and if such event shall occur at a time when any of
the Liabilities may not then be due and payable, the Guarantor will pay to the
Funding Parties forthwith the full amount which would be payable hereunder by
the Guarantor if all Liabilities were then due and payable.
SECTION 3. Right of Set-Off. To secure all obligations of the Guarantor
----------------
hereunder, each Funding Party shall have a right to set-off, without demand or
notice of any kind, at any time and from time to time when any amount shall be
due and payable by the Guarantor hereunder against any and all balances,
credits, deposits, accounts or moneys of or in the Guarantor's name now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, any Funding Party or any agent or bailee for any Funding
Party, and apply any such amounts toward the payment of the Liabilities then due
in such order as the Agent may elect in accordance with the Operative Documents.
SECTION 4. Continuing Operative Guaranty. This Operative Guaranty shall
-----------------------------
in all respects be a continuing, absolute and unconditional Operative Guaranty
of prompt and complete payment and performance (and not merely of collection),
and shall remain in full force and effect (notwithstanding, without limitation,
the dissolution of the Guarantor) until the termination of the Commitments and
the full and final payment of all of the Liabilities.
SECTION 5. Reinstatement. The Guarantor further agrees that, if at any
-------------
time all or any part of any payment theretofore applied to any of the
Liabilities is or must be rescinded or returned for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
the Guarantor), such Liabilities shall, for the purposes of this Operative
Guaranty, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application, and
this Operative Guaranty shall continue to be effective or be reinstated, as the
case may
3
be, as to such Liabilities, all as though such application had not been made.
SECTION 6. Certain Actions. The Funding Parties may, from time to time
---------------
at their discretion and without notice to the Guarantor, take any or all of the
following actions: (a) retain or obtain (i) a security interest in the Lessee's
interests in the Lease and (ii) a lien or a security interest hereafter granted
by any Person upon or in any property, in each case to secure any of the
Liabilities or any obligation hereunder; (b) retain or obtain the primary or
secondary obligation of any obligor or obligors, in addition to the Guarantor,
with respect to any of the Liabilities; (c) extend or renew for one or more
periods (regardless of whether longer than the original period), or release or
compromise any obligation of the Guarantor hereunder or any obligation of any
nature of any other obligor (including, without limitation, the Lessor) with
respect to any of the Liabilities; (d) release or fail to perfect its Lien upon
or security interest in, or impair, surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Liabilities or any obligation hereunder, or extend or renew for one or more
periods (regardless of whether longer than the original period) or release or
compromise any obligations of any nature of any obligor with respect to any such
property; and (e) resort to the Guarantor for payment of any of the Liabilities,
regardless of whether the Agent or any other Person shall have resorted to any
property securing any of the Liabilities or any obligation hereunder or shall
have proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities (all of the actions referred to in this clause
------
(e) being hereby expressly waived by the Guarantor).
---
SECTION 7. Application. Any amounts received by any Funding Party from
-----------
whatever source on account of the Liabilities shall be applied by it toward the
payment of such of the Liabilities, and in such order of application, as is set
forth in the Operative Documents.
SECTION 8. Waiver. The Guarantor hereby expressly waives: (a) notice of
------
the acceptance of this Operative Guaranty; (b) notice of the existence or
creation or non-payment of all or any of the Liabilities; (c) presentment,
demand, notice of dishonor, protest, and all other notices whatsoever; and (d)
all diligence in collection or protection of or realization upon the Liabilities
or any thereof, any obligation hereunder, or any security for or Operative
Guaranty of any of the foregoing.
4
SECTION 9. Assignment. Subject to Section 6 of the Master Agreement,
----------
each Funding Party may, from time to time, whether before or after any
discontinuance of this Operative Guaranty, at its sole discretion and without
notice to the Guarantor, assign or transfer any or all of its portion of the
Liabilities or any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such Liabilities
shall be and remain Liabilities for the purposes of this Operative Guaranty, and
each and every such immediate and successive assignee or transferee of any of
the Liabilities or of any interest therein shall, to the extent of such
assignee's or transferee's interest in the Liabilities, be entitled to the
benefits of this Operative Guaranty to the same extent as if such assignee or
transferee were such Funding Party.
SECTION 10. Miscellaneous. No delay in the exercise of any right or
-------------
remedy shall operate as a waiver thereof, and no single or partial exercise of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Operative Guaranty be binding upon any Funding
Party except as expressly set forth in a writing duly signed and delivered on
its behalf. No action permitted hereunder shall in any way affect or impair any
Funding Party's rights or the Guarantor's obligations under this Operative
Guaranty. For the purposes of this Operative Guaranty, Liabilities shall include
all of the obligations described in the definition thereof, notwithstanding any
right or power of the Lessee or the Lessor or anyone else to assert any claim or
defense (other than final payment) as to the invalidity or unenforceability of
any such obligation, and no such claim or defense shall affect or impair the
obligations of the Guarantor hereunder. The Guarantor's obligations under this
Operative Guaranty shall be absolute and unconditional irrespective of any
circumstance whatsoever which might constitute a legal or equitable discharge or
defense of the Guarantor. The Guarantor hereby acknowledges that there are no
conditions to the effectiveness of this Operative Guaranty.
This Operative Guaranty shall be binding upon the Guarantor and upon
the Guarantor's successors and permitted assigns; and all references herein to
the Guarantor shall be deemed to include any successor or successors, whether
immediate or remote, to such Person; provided that the Guarantor shall not
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assign its obligations hereunder without the prior written consent of the
Funding Parties.
5
Wherever possible each provision of this Operative Guaranty shall be
interpreted in such manner as to be effective and valid under Applicable Law,
but if any provision of this Operative Guaranty shall be prohibited by or
invalid thereunder, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Operative Guaranty.
The Guarantor: (a) submits for itself and its property in any legal
action or proceeding relating to this Operative Guaranty, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of Georgia sitting in ▇▇▇▇▇▇ County,
Georgia, the courts of the United States of America for the Northern District of
Georgia, and appellate courts from any thereof; (b) consents that any such
action or proceedings may be brought to such courts, and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same; (c) agrees that
service of process in any such action or proceeding may be effected by
delivering a copy thereof to it at its address set forth below or at such other
address of which the other parties to the Master Agreement shall have been
notified pursuant to Section 8.2 of the Master Agreement; and (d) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right of the Funding Parties to ▇▇▇
in any other jurisdiction.
All notices, demands, declarations, consents, directions, approvals,
instructions, requests and other communications required or permitted by this
Operative Guaranty shall be in writing and shall be deemed to have been duly
given when addressed to the appropriate Person and delivered in the manner
specified in Section 8.2 of the Master Agreement. The initial address for
notices to each Guarantor is set forth below.
THIS OPERATIVE GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
6
IN WITNESS WHEREOF, the Guarantor has caused this Operative Guaranty to
be executed and delivered as of the date first above written.
EQUIFAX INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
Address:
FLORIDA OPERATIVE GUARANTY
S-1