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EXHIBIT 10.4
AGREEMENT REGARDING LEASES
THIS
AGREEMENT REGARDING LEASES (this "Agreement") is made and
entered
into as of the 30th day of June, 2001, by and between EQUIFAX INC.,
a Georgia
corporation ("Equifax"), and CERTEGY PAYMENT SERVICES, INC. (f/k/a
Equifax
Payment Services, Inc.), a Delaware corporation ("Certegy Payment
Services").
WITNESSETH:
WHEREAS,
Certegy Payment Services is currently a wholly-owned
subsidiary of Equifax;
WHEREAS,
Equifax presently intends to transfer and assign to Certegy
Inc., a Georgia corporation ("Certegy"), as a contribution to the
capital of
Certegy, the capital stock of Certegy Payment Services and certain
related
assets (the "Spin Transaction"); and
WHEREAS,
each of Certegy Payment Services and its subsidiaries
(collectively, the "Certegy Payment Services Group"; the persons
and entities
composing the Certegy Payment Services Group are herein referred to
as "Certegy
Payment Services Group Companies") and Equifax and its subsidiaries
other than
those that compose the Certegy Payment Services Group Companies
(collectively,
the "Equifax Group""; the persons and entities composing the
Equifax Group are
herein referred to as "Equifax Group Companies") have entered into
certain Lease
Agreements and Lease Guarantees, and the parties hereto desire to
agree upon
certain matters with respect to such Lease Agreements and Lease
Guarantees in
connection with the Spin Transaction, as set forth in this
Agreement.
NOW,
THEREFORE, for and in consideration of the sum of Ten and
No/100
Dollars ($10.00), the foregoing premises and the respective
undertakings of the
parties, and other good and valuable consideration, the receipt and
sufficiency
of which are hereby acknowledged, Equifax and Certegy Payment
Services hereby
agree as follows:
1. Certegy
Payment Services Group Leases; Equifax Guarantees.
(a) Certegy Payment Services Group Leases. Certain Certegy
Payment Services Group Companies are currently the "tenants" or
"lessees" under
those certain Lease Agreements identified on Exhibit "A" attached
hereto and
incorporated herein (the "Certegy Payment Services Group Leases"),
and such
Certegy Payment Services Group Companies will continue to be the
"tenants" or
"lessees" under their Lease Agreements immediately after the
consummation of the
Spin Transaction. The parties intend that the Spin Transaction
shall not
constitute an assignment or other transfer under any of the Certegy
Payment
Services Group Leases that would require the consent of the
"landlord" or
"lessor" thereunder, but, in the event the Spin Transaction is
deemed to be such
an assignment or other transfer under any of the Certegy Payment
Services Group
Leases, then Equifax and Certegy Payment Services hereby agree to
reasonably
cooperate with each other in obtaining any such required consent of
the
"landlord" or "lessor" thereunder. Certegy Payment Services shall,
and hereby
agrees to,
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indemnify, defend and hold Equifax harmless from, against and in
respect of any
actions, causes of action, suits, claims, demands, judgments, or
proceedings
asserted against, imposed upon or suffered or incurred by Equifax,
and from,
against and in respect of any liabilities, damages, losses, costs,
expenses
(including counsel fees and expenses and disbursements of counsel),
amounts of
judgment, assessments, fines or penalties, and amounts paid in
compromise or
settlement, asserted against, imposed upon or suffered or incurred
by Equifax,
in connection with or arising out of or by reason of any one or
more of the
Certegy Payment Services Group Leases in connection with the Spin
Transaction or
otherwise.
(b) Equifax
Guarantees. Equifax has entered into lease guarantees (the
"Equifax Guarantees") with respect to the duties, obligations,
liabilities, and
responsibilities of the "tenant" or "lessee" under certain of the
Certegy
Payment Services Group Leases, as identified on Exhibit "B"
attached hereto and
incorporated herein. Certegy Payment Services shall, and hereby
agrees to,
indemnify, defend and hold Equifax harmless from, against and in
respect of any
actions, causes of action, suits, claims, demands, judgments, or
proceedings
asserted against, imposed upon or suffered or incurred by Equifax,
and from,
against and in respect of any liabilities, damages, losses, costs,
expenses
(including counsel fees and expenses and disbursements of counsel),
amounts of
judgment, assessments, fines or penalties, and amounts paid in
compromise or
settlement, asserted against, imposed upon or suffered or incurred
by Equifax in
connection with or arising out of or by reason of any one or more
of the Equifax
Guarantees. Without limiting any of the rights or remedies of
Equifax under the
Distribution Agreement (as hereinafter defined) or otherwise,
Equifax shall be
subrogated to the right, title, and interest of the "landlord" or
"lessor" under
each of the Equifax Guarantees and all rights or remedies of the
"landlord" or
"lessor" thereunder to the extent Equifax is required to honor any
such Equifax
Guarantees and to the extent permitted under the terms of the
applicable Certegy
Payment Services Group Lease.
2. Equifax
Group Leases; Subletting; Assignment.
(a) Equifax
Group Leases. Certain Equifax Group Companies are
currently the "tenants" or "lessees" under those certain Lease
Agreements
identified on Exhibit "C" attached hereto and incorporated herein
(the "Equifax
Group Leases"), and all or a portion of the premises under each of
such Equifax
Group Leases are currently occupied by one or more Certegy Payment
Services
Group Companies. The parties desire that portions of the premises
under certain
Equifax Group Leases be sublet, and that certain of the Equifax
Group Leases be
assigned, to the Certegy Payment Services Group Company currently
occupying all
or a portion of the premises thereunder, as set forth in
subparagraphs (b) and
(c), below.
(b)
Subletting. Certegy Payment Services Group Companies currently
occupy all or a portion of the premises under each of the Equifax
Group Leases
identified as "to be sublet" on Exhibit "C" hereto, which occupied
portion of
each such premises is more particularly described on said Exhibit
"C". Each of
the Equifax Group Companies that is the "tenant" or "lessee" under
each such
Equifax Group Lease (each as a "Sublandlord" hereunder) does hereby
sublease to
the Certegy Payment Services Company identified on said Exhibit "C"
as the
"Subtenant" with respect to such Equifax Group Lease, and each such
Subtenant
does hereby sublease from its respective Sublandlord, for the term
and on the
terms and conditions
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hereinafter provided in Exhibit "D" attached hereto and
incorporated herein,
such portion of the premises under such Equifax Group Lease as is
more
particularly described in said Exhibit "C", and herein referred to,
as the
"Sublet Premises". For purposes of Exhibit "D" and this Agreement,
and with
respect to each such Equifax Group Lease, the term "Total Premises"
means the
entire "premises" under such Equifax Group Lease. In the event any
such
subletting requires the consent of the "landlord" or "lessor" under
the
applicable Equifax Group Lease, then the respective Sublandlord and
Subtenant
hereby agree to reasonably cooperate with each other in obtaining
any such
required consent. All statements, covenants, agreements,
representations and
warranties, if any, made herein (including, without limitation, in
Exhibit "D"
hereto) by each Sublandlord shall be deemed to be made by such
party only with
respect to itself or to the Equifax Group Lease or Sublet Premises
of such
party, as the case may be, and shall not be deemed to be made by
such party with
respect to any other Sublandlord or to any other Equifax Group
Lease or Sublet
Premises, and each Sublandlord shall have liability and
responsibility under
this Agreement with respect to such subletting only in respect of
the Sublet
Premises of that Sublandlord and shall have no liability or
responsibility in
respect of any other Sublet Premises.
(c)
Assignment. Certegy Payment Services Group Companies currently
occupy all or a portion of the premises under each of the Equifax
Group Leases
identified as "to be assigned" on Exhibit "C" hereto. Each of the
Equifax Group
Companies that is the "tenant" or "lessee" under each such Equifax
Group Lease
(each as an "Assignor" hereunder) does hereby assign all of its
right, title,
and interest in and to its respective Equifax Group Lease to the
Certegy Payment
Services Company identified on said Exhibit "C" as the "Assignee"
with respect
to such Equifax Group Lease, and each such Assignee does hereby
assume all of
the obligations, duties, responsibilities, and liabilities of the
"tenant" or
"lessee" under such Equifax Group Lease with respect to periods of
time from and
after the date of this Agreement, pursuant to and in accordance
with the terms
and conditions hereinafter provided in Exhibit "E" attached hereto
and
incorporated herein. In the event any such assignment requires the
consent of
the "landlord" or "lessor" under the applicable Equifax Group
Lease, then the
respective Assignor and Assignee hereby agree to reasonably
cooperate with each
other in obtaining any such required consent. All statements,
covenants,
agreements, representations and warranties, if any, made herein
(including,
without limitation, in Exhibit "E" hereto) by each Assignor shall
be deemed to
be made by such party only with respect to itself or to the Equifax
Group Lease
of such party, as the case may be, and shall not be deemed to be
made by such
party with respect to any other Assignor or to any other Equifax
Group Lease,
and each Assignor shall have liability and responsibility under
this Agreement
with respect to such assignment only in respect of the Equifax
Group Lease of
that Assignor and shall have no liability or responsibility in
respect of any
other Equifax Group Lease.
3.
Distribution Agreement.
(a)
Compliance. Certegy Payment Services shall comply with, abide
by
and perform all of the terms, covenants, conditions, agreements,
requirements,
restrictions and provisions of Section 2.08 of the Distribution
Agreement (as
hereinafter defined) as to the Certegy Payment Services Group
Leases and the
Equifax Guarantees and with respect to each Sublet Premises and the
subleasing
and assignments set forth in this Agreement. The term
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"Distribution Agreement" means that certain Distribution Agreement
dated as of
the date of this Agreement executed by and between Equifax and
Certegy in
connection with the Spin Transaction.
(b) Dispute
Resolution. Any disputes arising under this Agreement, and
any liability of either party with respect to the attorneys' fees
or costs
incurred by the other party with respect to such dispute, shall be
resolved in
accordance with Section 15.10 of the Distribution Agreement in the
same manner
and with the same effect as if said Section were set forth in full
and at length
herein and as if Certegy Payment Services and each Sublandlord and
Assignee
hereunder were the parties thereto other than Equifax, and as if
Equifax and
each Sublandlord and Assignor hereunder were the parties thereto
other than
Certegy, and said Section is hereby incorporated herein.
4. Further
Assurances. From time to time after the date hereof, each
of Equifax and Certegy Payment Services, and any Sublandlord,
Subtenant,
Assignor, and Assignee, shall, upon written request, do all such
additional and
further acts, and shall execute and deliver all such additional and
further
assignments, subleases, and other instruments and documents, as any
other party
hereto may reasonably require to effectuate the terms and
conditions of this
Agreement.
5. General
Provisions.
(a) Notices.
Whenever any notice, demand or request is required or
permitted to be given by one party hereto to the other party under
this
Agreement, such notice, demand or request shall be in writing and
shall be
delivered by hand, be sent by registered or certified mail, postage
prepaid,
return receipt requested, or be sent by nationally recognized
commercial courier
for next business day delivery, to the addresses set forth below
such party's
respective execution hereof, or to such other addresses as are
specified by
written notice given in accordance herewith. All notices, demands
or requests
delivered by hand shall be deemed given upon the date so delivered;
those given
by mailing as hereinabove provided shall be deemed given on the
date of deposit
in the United States Mail; and those given by commercial courier as
hereinabove
provided shall be deemed given on the date of deposit with the
commercial
courier. Nonetheless, the time period, if any, in which a response
to any
notice, demand or request must be given shall commence to run from
the date of
receipt of the notice, demand or request by the addressee thereof.
Any notice,
demand or request not received because of changed address of which
no notice was
given as hereinabove provided or because of refusal to accept
delivery shall be
deemed received by the party to whom addressed on the date of hand
delivery, on
the first business day after deposit with commercial courier, or on
the third
business day following deposit in the United States Mail, as the
case may be.
(b)
Headings. The use of headings, captions and numbers in this
Agreement is solely for the convenience of identifying and indexing
the various
provisions in this Agreement and shall in no event be considered
otherwise in
construing or interpreting any provision in this Agreement.
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(c)
Exhibits. Each and every exhibit referred to or otherwise
mentioned in this Agreement is attached to this Agreement and is
and shall be
construed to be made a part of this Agreement by such reference or
other mention
at each point at which such reference or other mention occurs, in
the same
manner and with the same effect as if each exhibit were set forth
in full and at
length every time it is referred to or otherwise mentioned.
(d) Defined
Terms. Capitalized terms used in this Agreement shall have
the meanings ascribed to them at the point where first defined,
irrespective of
where their use occurs, with the same effect as if the definitions
of such terms
were set forth in full and at length every time such terms are
used.
(e)
Pronouns. Wherever appropriate in this Agreement, personal
pronouns shall be deemed to include the other genders and the
singular to
include the plural.
(f)
Severability. If any term, covenant, condition or provision of
this Agreement, or the application thereof to any person or
circumstance, shall
ever be held to be invalid or unenforceable, then in each such
event the
remainder of this Agreement or the application of such term,
covenant, condition
or provision to any other person or any other circumstance (other
than those as
to which it shall be invalid or unenforceable) shall not be thereby
affected,
and each term, covenant, condition and provision hereof shall
remain valid and
enforceable to the fullest extent permitted by law.
(g)
Non-Waiver. Failure by any party to complain of any action,
non-
action or breach of any other party shall not constitute a waiver
of any
aggrieved party's rights hereunder. Waiver by any party of any
right arising
from any breach of any other party shall not constitute a waiver of
any other
right arising from a subsequent breach of the same obligation or
for any other
default, past, present or future.
(h) Rights
Cumulative. All rights, remedies, powers and privileges
conferred under this Agreement on the parties shall be cumulative
of and in
addition to, but not restrictive of or in lieu of, those conferred
by law or at
equity.
(i) Time of
Essence. Time is of the essence of this Agreement.
(j)
Applicable Law. This Agreement shall be governed by, construed
under and interpreted and enforced in accordance with the laws of
the State of
Georgia.
(k) Entire
Agreement; Modification. This Agreement supersedes all
prior discussions and agreements between Equifax and Certegy
Payment Services,
and any Sublandlord. Subtenant, Assignor, or Assignee, with respect
to the
Certegy Payment Services Group Leases, the Equifax Group Leases,
the Equifax
Guarantees, the subletting and assigning hereunder and other
matters expressly
set forth herein, and this Agreement contains the sole and entire
understanding
between Equifax and Certegy Payment Services, and the Sublandlords,
Subtenants,
Assignors, and Assignees, with respect thereto. This Agreement
shall not be
modified or amended except by an instrument in writing executed by
or on behalf
of Equifax and
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Certegy Payment Services; provided, however, that if any such
modification or
amendment affects any subletting described in Section 2(b), above,
or any
assignment described in Section 2(c), then the Sublandlord and
Subtenant or the
Assignor and Assignee, as the case may be, shall also be a party to
such
modification or amendment instrument.
(l)
Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of
such
counterparts together shall constitute one and the same
instrument.
(m)
Authority. Each party hereto warrants and represents that such
party has full and complete authority to enter into this Agreement
and each
