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EXHIBIT 10.35
CONSTRUCTION AGENCY AGREEMENT
dated as of July 31, 1997
among
SUNTRUST BANKS, INC.
and
CHOICEPOINT INC.
as Construction Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1. Defined Terms..................................................2
ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT
2.1. Appointment....................................................2
2.2. Acceptance; Construction.......................................2
2.3. Commencement of Construction...................................2
2.4. Supplements to this Agreement..................................2
2.5. Term...........................................................3
2.6. Identification of Properties; Construction Documents...........3
2.7. Scope of Authority.............................................3
2.8. Covenants of the Construction Agent............................4
ARTICLE III
THE BUILDINGS
3.1. Construction...................................................5
3.2. Amendments; Modifications......................................5
3.3. Casualty, Condemnation and Construction Force Majeure
Events.........................................................6
ARTICLE IV
PAYMENT OF FUNDS
4.1. Funding of Property Acquisition Costs and Property
Buildings Costs................................................6
ARTICLE V
CONSTRUCTION AGENCY EVENTS OF DEFAULT
5.1. Construction Agency Events of Default..........................7
5.2. Damages........................................................8
5.3. Remedies; Remedies Cumulative..................................8
ARTICLE VI
NO CONSTRUCTION AGENCY FEE
6.1. Lease as Fulfillment of Lessor's Obligations...................8
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Page
ARTICLE VII
LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS
7.1. Exercise of the Lessor's Rights................................9
7.2. Lessor's Right to Cure Construction Agent's Defaults...........9
ARTICLE VIII
MISCELLANEOUS
8.1. Notices........................................................9
8.2. Successors and Assigns.........................................9
8.3. GOVERNING LAW.................................................10
8.4. Amendments and Waivers........................................10
8.5. Counterparts..................................................10
8.6. Severability..................................................10
8.7. Headings and Table of Contents................................10
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EXHIBITS
Exhibit A Form of Supplement to Construction
Agency Agreement
Exhibit B Form of Assignment of Construction
Contracts
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CONSTRUCTION AGENCY AGREEMENT
CONSTRUCTION AGENCY AGREEMENT, dated as of July 31, 1997 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), between
SUNTRUST BANKS, INC., a Georgia corporation, (the "Lessor"), and CHOICEPOINT
INC., a Georgia corporation (in its capacity as construction agent, the
"Construction Agent").
PRELIMINARY STATEMENT
A. ChoicePoint Inc., as lessee (the "Lessee"), and Lessor, as lessor,
are parties to that certain Lease (as amended, supplemented or otherwise
modified from time to time pursuant thereto, the "Lease"), pursuant to which the
Lessee has agreed to lease from Lessor, and Lessor have agreed to lease to
Lessee, Lessor's interests in certain Leased Properties.
▇. ▇▇▇▇▇▇, the Lessee, and SunTrust Bank, Atlanta, as agent (in such
capacity, the "Agent") are parties to that certain Master Agreement, dated as of
even date herewith (as amended, supplemented or otherwise modified from time to
time pursuant thereto, the "Master Agreement").
C. Subject to the terms and conditions hereof, (i) the Lessor desires
to appoint the Construction Agent as its sole and exclusive agent for the
identification and acquisition of the Land pursuant to the Master Agreement and
construction of the Buildings in accordance with the Plans and Specifications
and pursuant to the Master Agreement, and (ii) the Construction Agent desires,
for the benefit of the Lessor, to cause the Buildings to be constructed in
accordance with the Plans and Specifications and pursuant to the Master
Agreement and this Agreement, in each case in accordance with the terms herein
set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1. Defined Terms. Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings set forth in the
Master Agreement.
ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT
2.1. Appointment. Pursuant to and subject to the terms and conditions
set forth herein and in the Master Agreement and the other Operative Documents,
the Lessor hereby irrevocably designates and appoints the Construction Agent as
its exclusive agent for the identification and acquisition from time to time of
Land to be acquired by the Lessor and construction of the Buildings in
accordance with the Plans and Specifications on such Land.
2.2. Acceptance; Construction. The Construction Agent hereby
unconditionally accepts the designation and appointment as Construction Agent.
The Construction Agent will cause the Buildings to be constructed on the Land in
substantial accordance with the Plans and Specifications and equipped in
substantial compliance in all material respects with all Requirements of Law and
insurance requirements.
2.3. Commencement of Construction. Subject to Construction Force
Majeure Events, the Construction Agent hereby agrees, unconditionally and for
the benefit of the Lessor, to commence construction of a Building on each parcel
of Land as soon as is practicable after the Closing Date in respect of such
Property. For purposes hereof, construction of a Building shall be deemed to
commence on the date (the "Construction Commencement Date") on which [excavation
for the foundation for such Building] commences, as certified by the
Construction Agent to the Lessor and the Agent in writing. Without limiting the
foregoing, no phase of such construction shall be undertaken until all permits
required for such phase have been issued therefor.
2.4. Supplements to this Agreement. On the Closing Date of each parcel
of Land, the Lessor and the Construction Agent shall each execute and deliver to
the Agent a supplement to this Agreement in the form of Exhibit A to this
Agreement, appropriately completed, pursuant to which the Lessor and the
Construction Agent shall, among other things, each acknowledge and agree that
the construction and development of such Land will be governed by the terms of
this Agreement. Following the
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execution and delivery of a supplement to this Agreement as provided above, such
supplement and all supplements previously delivered under this Agreement shall
constitute a part of this Agreement.
2.5. Term. This Agreement shall commence on the date hereof and shall
terminate with respect to any given Leased Property upon the first to occur of:
(a) payment by the Lessee of the Leased Property Balance and
termination of the Lease with respect to such Leased Property in
accordance with the Lease;
(b) the expiration or earlier termination of the ease; and
(c) termination of this Agreement pursuant to Article V
hereof.
2.6. Identification of Properties; Construction Documents. The
Construction Agent may execute any of its duties and obligations under this
Agreement by or through agents, contractors, employees or attorneys-in-fact, and
the Construction Agent shall enter into such agreements with architects and
contractors as the Construction Agent deems necessary or desirable for the
construction of the Buildings pursuant hereto (the "Construction Documents");
provided, however, that no such delegation shall limit or reduce in any way the
Construction Agent's duties and obligations under this Agreement; provided,
further, that contemporaneously with the execution and delivery of a
Construction Document, the Construction Agent will execute and deliver to the
Lessor the Assignment of Construction Documents in the form of Exhibit B
attached hereto, pursuant to which the Construction Agent assigns to the Lessor,
among other things, all of the Construction Agent's rights under and interests
in such Construction Documents.
2.7. Scope of Authority. (a) Subject to the terms, conditions,
restrictions and limitations set forth in the Operative Documents, the Lessor
hereby expressly authorizes the Construction Agent, or any agent or contractor
of the Construction Agent, and the Construction Agent unconditionally agrees,
for the benefit of the Lessor, to take all action necessary or desirable for the
performance and satisfaction of all of the Construction Agent's obligations
hereunder with respect to the Leased Properties acquired by the Lessor,
including, without limitation:
(i) the identification and assistance with the acquisition of
Land in accordance with the terms and conditions of the Master
Agreement;
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(ii) all design and supervisory functions relating to
the construction of the Buildings and performing all
engineering work related to the construction of the
Buildings;
(iii) negotiating and entering into all contracts or
arrangements to procure the equipment and services necessary to
construct the Buildings on such terms and conditions as are customary
and reasonable in light of local standards and practices;
(iv) obtaining all necessary permits, licenses, consents,
approvals and other authorizations, including those required under
Applicable Law (including Environmental Laws), from all Governmental
Authorities in connection with the development and construction of the
Buildings on the Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to
the construction, operation and management of the Leased
Properties; and
(vi) performing any other acts necessary in connection with
the identification and acquisition of the Land and construction and
development of the Buildings in accordance with the Plans and
Specifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents
shall enter into any contract which would, directly or indirectly, impose any
liability or obligation on the Lessor unless such contract expressly contains an
acknowledgment by the other party or parties thereto that the obligations of the
Lessor are non-recourse, and that the Lessor shall have no personal liability
with respect to such obligations. Subject to the foregoing, the Lessor shall
execute such documents and take such other actions as the Construction Agent
shall reasonably request, at the Construction Agent's expense, to permit the
Construction Agent to perform its duties hereunder.
(c) Subject to the terms and conditions of this Agreement and the
other Operative Documents, the Construction Agent shall have sole management and
control over the construction means, methods, sequences and procedures with
respect to the construction of the Buildings.
2.8. Covenants of the Construction Agent. The Construction Agent
hereby covenants and agrees that it will:
(a) following the Construction Commencement Date for each
parcel of Land, cause construction of a Building on such Land to be
prosecuted diligently and without undue
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interruption substantially in accordance with the Plans and
Specifications for such Land and in compliance in all material respects
with all Requirements of Law and insurance requirements;
(b) notify the Lessor and the Agent in writing not less than
five (5) Business Days after the occurrence of each Construction Force
Majeure Event;
(c) take all reasonable and practical steps to minimize the
disruption of the construction process arising from Construction Force
Majeure Events;
(d) take all reasonable and practical steps to cause the
Completion Date for such Leased Property to occur on or prior to the
Scheduled Construction Termination Date for such Leased Property, and
cause all Liens (including, without limitation, Liens or claims for
materials supplied or labor or services performed in connection with
the construction of the Buildings), other than Permitted Liens and
Lessor Liens, to be discharged;
(e) following the Completion Date for each Leased Property,
cause all outstanding punch list items with respect to the Buildings on
such Leased Property to be completed within sixty (60) days after said
Completion Date; and
(f) at all times during construction of any Building, cause
all title to all personalty financed by the Lessor on or within such
Leased Property to be and remain vested in the Lessor and cause to be
on file with the applicable filing office all necessary documents under
Article 9 of the Uniform Commercial Code to perfect such title free of
all Liens other than Permitted Liens, it being understood and
acknowledged that such Lessor's rights, title and interest in and to
said personalty have been assigned to the Agent pursuant to the
Operative Documents.
ARTICLE III
THE BUILDINGS
3.1. Construction. The Construction Agent shall cause the
Buildings to be constructed, equipped, maintained and used in compliance in all
material respects with all Requirements of Law and insurance requirements.
3.2. Amendments; Modifications. The Construction Agent may,
subject to the conditions, restrictions and limitations set
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forth herein and in the Operative Documents (but not otherwise), at any time
during the term hereof revise, amend or modify the Plans and Specifications
without the consent of the Lessor; provided, however, that the Lessor's prior
written consent will be required in the following instances: (x) such revision,
amendment or modification would result in the Completion Date of the Buildings
occurring after the Scheduled Construction Termination Date, or (y) such
revision, amendment or modification would result in the cost for such Leased
Property exceeding the then remaining Commitments, or (z) the aggregate effect
of such revision, amendment or modification, when taken together with any
previous or contemporaneous revision, amendment or modification to the Plans and
Specifications for such Leased Property, would be to reduce the Fair Market
Sales Value of such Leased Property in a material respect when completed.
3.3. Casualty, Condemnation and Construction Force Majeure Events. If
at any time prior to the Completion Date with respect to any Building there
occurs a Casualty or a Construction Force Majeure Event or the Lessor or the
Construction Agent receives notice of a Condemnation, then, except as otherwise
provided in the Lease, in each case the Construction Agent shall promptly and
diligently take all reasonable and practical steps to complete the construction
of the Building substantially in accordance with the Plans and Specifications
and with the terms hereof, and cause the Completion Date to occur on or prior to
the Scheduled Construction Termination Date.
ARTICLE IV
PAYMENT OF FUNDS
4.1. Funding of Property Acquisition Costs and Property Buildings
Costs. (a) In connection with the acquisition of any Land and during the course
of the construction of the Buildings on any Land, the Construction Agent may
request that the Lessor advance funds for the payment of acquisition,
transaction and closing costs or property improvements costs, and the Lessor
will comply with such request to the extent provided for under, and subject to
the conditions, restrictions and limitations contained in, the Master Agreement
and the other Operative Documents.
(b) The proceeds of any funds made available to the Lessor to pay
acquisition, transaction and closing costs or improvements costs shall be made
available to the Construction Agent in accordance with the Funding Request
relating thereto and the terms of the Master Agreement. The Construction Agent
will use such proceeds only to pay the acquisition, transaction and closing
costs or improvements costs for Leased Properties set forth in the Funding
Request relating to such funds.
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ARTICLE V
CONSTRUCTION AGENCY EVENTS OF DEFAULT
5.1. Construction Agency Events of Default. If any one or
more of the following events (each a "Construction Agency Event of Default")
shall occur and be continuing:
(a) the Construction Agent fails to apply any funds paid by,
or on behalf of, the Lessor to the Construction Agent for the
acquisition of the Land and the construction of the Buildings to the
payment of acquisition, transaction and closing costs or improvements
costs for such Leased Property;
(b) subject to Construction Force Majeure Events, the
Construction Commencement Date with respect to any Leased Property
shall fail to occur for any reason on or prior to the Scheduled
Construction Termination Date;
(c) the Completion Date with respect to any Leased Property
shall fail to occur for any reason on or prior to the Funding
Termination Date;
(d) any Lease Event of Default shall have occurred and be
continuing; or
(e) the Construction Agent shall fail to observe or perform
any term, covenant or condition of this Agreement (except those
specified in clauses (a) through (d) above), and such failure shall
remain uncured for a period of thirty (30) days after notice thereof to
the Construction Agent; provided, however, no Construction Agency Event
of Default shall be deemed to occur if such failure or breach cannot
reasonably be cured within such period, so long as the Construction
Agent shall have promptly commenced the cure thereof and continues to
act with diligence to cure such failure or breach and such failure or
breach is cured within 180 days after notice thereof to the
Construction Agent;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Article, immediately terminate this Agreement as
to any Leased Property or Properties or all of the Leased Properties,
separately, successively or concurrently (all in Lessor's sole discretion) by
giving the Construction Agent written notice of such termination, and upon the
giving of such notice, this Agreement shall terminate as to such Leased Property
or Properties or all of the Leased Properties (as the case may be) and all
rights of the Construction Agent and all obligations of the Lessor under this
Agreement with respect to such Leased Property or Properties or
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all of the Leased Properties (as the case may be) shall cease. The Construction
Agent shall pay upon demand all reasonable costs, expenses, losses, expenditures
and damages (including, without limitation, attorneys' fees and disbursements)
actually incurred by or on behalf of the Lessor in connection with any
Construction Agency Event of Default and, in the case of a Non- Completion
Event, the Construction Agent shall make the Completion Costs Payment to the
Lessor.
5.2. Damages. The termination of this Agreement pursuant to Section
5.1 shall in no event relieve the Construction Agent of its liability and
obligations hereunder, all of which shall survive any such termination.
5.3. Remedies; Remedies Cumulative. (a) If a Construction Agency Event
of Default shall have occurred and be continuing, the Lessor shall have all
rights and remedies available under the Operative Documents or available at law,
equity or otherwise. Notwithstanding the foregoing, if a Construction Agency
Event of Default hereunder relates only to a specific Leased Property or
specific Leased Properties but not all Leased Properties (but in any event
excluding any Lease Event of Default), the Construction Agent shall have the
right to cure such Construction Agency Event of Default by purchasing such
Leased Property or Properties for the Leased Property Balance(s) therefor from
the Lessor in accordance with the terms and subject to the conditions,
restrictions and limitations of Section 14.5 of the Lease.
(b) No failure to exercise and no delay in exercising, on the part of
the Lessor, any right, remedy, power or privilege under this Agreement or under
the other Operative Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in this Agreement are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
ARTICLE VI
NO CONSTRUCTION AGENCY FEE
6.1. Lease as Fulfillment of Lessor's Obligations. All obligations,
duties and requirements imposed upon or allocated to the Construction Agent
shall be performed by the Construction Agent at the Construction's Agent's sole
cost and expense, and the Construction Agent will not be entitled to, and the
Lessor shall not have any obligation to pay, any agency fee or other fee
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or compensation, and the Construction Agent shall not be entitled to, and the
Lessor shall not have any obligation to make or pay, any reimbursement therefor,
it being understood that this Agreement is being entered into as consideration
for and as an inducement to the Lessor entering into the Lease and the other
Operative Documents.
ARTICLE VII
LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS
7.1. Exercise of the Lessor's Rights. The Construction Agent hereby
acknowledges and agrees that, subject to and in accordance with the terms of the
Construction Agency Agreement Assignment made by the Lessor in favor of the
Agent, the rights and powers of the Lessor under this Agreement have been
assigned to and may be exercised by the Agent.
7.2. Lessor's Right to Cure Construction Agent's Defaults. The Lessor,
without waiving or releasing any obligation or Construction Agency Event of
Default, may (but shall be under no obligation to) remedy any Construction
Agency Event of Default for the account of and at the sole cost and expense of
the Construction Agent. All reasonable out of pocket costs and expenses so
incurred (including actual and reasonable fees and expenses of counsel),
together with interest thereon at the Overdue Rate from the date on which such
sums or expenses are paid by the Lessor, shall be paid by the Construction Agent
to the Lessor on demand.
ARTICLE VIII
MISCELLANEOUS
8.1. Notices. All notices, consents, directions, approvals,
instructions, requests, demands and other communications required or permitted
by the terms hereof to be given to any Person shall be given in writing in the
manner provided in, shall be sent to the respective addresses set forth in, and
the effectiveness thereof shall be governed by the provisions of, Section 8.2 of
the Master Agreement.
8.2. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor, the Construction Agent and their respective
legal representatives, successors and permitted assigns. The Construction Agent
shall not assign its rights or obligations hereunder without the prior written
consent of the Lessor and the Agent.
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8.3. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
8.4. Amendments and Waivers. The Lessor and the Construction Agent
may from time to time, enter into written amendments, supplements or
modifications hereto.
8.5. Counterparts. This Agreement may be executed on any
number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same agreement.
8.6. Severability. Any provision of this Agreement which 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.
8.7. Headings and Table of Contents. The headings and table of
contents contained in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CHOICEPOINT INC.
By /s/ ▇▇▇▇ ▇. Curling
-----------------------------------
Name: ▇▇▇▇ ▇. Curling
Title: Executive Vice President-CFO
SUNTRUST BANKS, INC.
By ▇.▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: SVP
S-1
EXHIBIT A
Supplement to Construction Agency Agreement
SUPPLEMENT to Construction Agency Agreement, dated as of
______________, 199_, between SUNTRUST BANKS, INC., (the "Lessor"), and
CHOICEPOINT INC., a Georgia corporation (in its capacity as construction agent,
the "Construction Agent"). Capitalized terms used but not otherwise defined
herein shall have the meanings given them in the Construction Agency Agreement.
The Lessor and the Construction Agent are parties to that certain
Construction Agency Agreement, dated as of July 31, 1997 (as amended,
supplemented or otherwise modified, the "Construction Agency Agreement"),
pursuant to which (i) the Lessor has appointed the Construction Agent as its
sole and exclusive agent in connection with the identification and acquisition
of Land and construction of the Buildings in accordance with the Plans and
Specifications, and (ii) the Construction Agent has agreed, for the benefit of
the Lessor, to cause the construction of the Buildings to be completed in
accordance with the Plans and Specifications.
Subject to the terms and conditions of the Construction Agency
Agreement, the Lessor and the Construction Agent desire that the terms of the
Construction Agency Agreement apply to the Land described in Schedule 1 and wish
to execute this Supplement to provide therefor.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
1. The Construction Agent agrees to act as Construction Agent and to
perform its obligations under the Construction Agency Agreement in connection
with the completion of construction of the Building on the Land described in
Schedule 1 in accordance with the Plans and Specifications for such Land. The
Construction Agent hereby represents and warrants to Lessor that the
Construction Agent has heretofore delivered to Lessor a true, correct and
complete copy of the Plans and Specifications for the Building on the Land
described in Schedule 1 or, if not available on the date hereof, will deliver
such Plans and Specifications as soon as available.
2. Each of the Lessor and the Construction Agent acknowledges, and
agrees, that the construction and development of the Land described in Schedule
1 shall be governed by the terms of the Construction Agency Agreement.
3. The anticipated construction budget relating to the construction and
development of the Building on the Land described in Schedule 1 is $__________.
The acquisition cost of the Land described in Schedule 1 is $___________.
4. This Supplement shall, upon its execution and delivery, constitute a
part of the Construction Agency Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CHOICEPOINT INC.
By
------------------------
Name:
Title:
SUNTRUST BANKS, INC.
By
------------------------
Name:
Title:
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Schedule 1 to Supplement
Description of Land Interest
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EXHIBIT B
Assignment of Construction Documents
See Exhibit C to Master Agreement.
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