CONSTRUCTION AGENCY AGREEMENT

 

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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

 

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                                    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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                                   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.

 

         B. Lessor, 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:

 

 

 

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                                    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 Pla