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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.
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 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. Th
