<PAGE>
EXHIBIT 10.1
(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, by and
among Equifax Inc., a Georgia corporation ("Assignor"), Certegy
Inc., a Georgia
corporation formerly known as Equifax PS, Inc. ("Assignee"), Prefco
VI Limited
Partnership, a Connecticut partnership (the "Lessor"), Atlantic
Financial Group,
Ltd., a Texas limited partnership ("AFG"), SunTrust Bank, a Georgia
banking
corporation, as Agent (the "Agent") and as Lender (the
"Lender").
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
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
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
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
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
Building and other improvements thereon and including the Lessor's
benefits and
rights under the Honeywell Lease (the "Leased Property"). The Lease
was recorded
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
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
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.
<PAGE>
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
-2-
<PAGE>
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
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
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
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
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
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.
-3-
<PAGE>
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
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
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
agreement of the Assignee, 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) No
Litigation. There is no action, suit or proceeding pending
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
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
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,
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
-4-
<PAGE>
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 Fulton 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., 11720 Amberpark Drive,
Suite 600, Alpharetta, Georgia
30004, Attention: Bruce S. Richards,
Corporate Vice President, General
Counsel and Secretary with a copy to:
Certegy Inc., P.O. Box 349,
Alpharetta, Georgia 30009, Attention:
Michael T. Vollkommer, 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.
-5-
<PAGE>
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.
-6-
<PAGE>
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/ Kent E. Mast
------------------------------------
Name: Kent E. Mast
Title: Vice President, General Counsel
and Secretary
Witnessed By:
/s/ Kristin L. Ray
-------------------------------------
Name: Kristin L. Ray
/s/ W. Stanley Blackburn
-------------------------------------
Name: W. Stanley Blackburn
Florida
<PAGE>
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/ Bruce S. Richards
------------------------------------
Name: Bruce S. Richards
Title:
Vice President and Assistant
Secretary
Witnessed By:
/s/ Kristin L. Ray
-------------------------------------
Name: Kristin L. Ray
/s/ W. Stanley Blackburn
-------------------------------------
Name: W. Stanley Blackburn
Florida
<PAGE>
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/ Stephen S. Brookshire
------------------------------------
Name: Stephen S. Brookshire
Title: President
Witnessed By:
/s/ Tiajuana Williams
-------------------------------------
Name: Tiajuana Williams
Name:
-------------------------------
Florida
<PAGE>
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/ Brian K. Peters
------------------------------------
Name: Brian K. Peters
Title: Managing Director
Witnessed By:
/s/ Richard M. Abramson
-------------------------------------
Name: Richard M. Abramson
Name:
-------------------------------
Florida
<PAGE>
STATE OF Georgia )
)
ss.
COUNTY OF Fulton )
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 Kent E. Mast, 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/ Joyce Simmons
----------------------------------------
(Notary Public)
My commission expires: 03/15/02
Florida
<PAGE>
STATE OF Georgia )
) ss.
COUNTY OF Fulton )
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 Bruce S. Richards, 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/ Joyce Simmons
----------------------------------------
(Notary Public)
My commission expires: 03/15/02
Florida
<PAGE>
STATE OF Georgia )
) ss.
COUNTY OF Fulton )
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 Brian K. Peters, 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/ Shana Chapman
----------------------------------------
(Notary Public)
My commission expires: March 1, 2002
Florida
<PAGE>
STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
The foregoing instrument was acknowledged
before me this 22nd day of June,
2001, by Stephen S. Brookshire, 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/ Lisa M. Williams
----------------------------------------
(Notary Public)
My commission expires: 12/17/01
Florida
<PAGE>
EXHIBIT A
Legal Description
Lots 1, Block 1, ROOSEVELT CENTRE SECOND REPLAT, according to map
or plat
thereof recorded in Plat Book 107, page 73, of the public records
of Pinellas
County, Florida
<PAGE>
Exhibit B
CERTEGY CARD SERVICES, INC.
11720 Amberpark Drive, Suite 600
Alpharetta, GA 30004
July 6, 2001
To Lessor, the Agent and the Lender as defined in
the Master Agreement hereinafter referred to
Re: Florida
Synthetic Lease Transaction
Ladies and Gentlemen:
I am Corporate Vice President, General
Counsel and Secretary of Certegy
Inc., a Georgia corporation ("Certegy"), and have reviewed fully
executed
counterparts of that certain Assignment and Assumption of Lease and
other
Operative Documents dated as of June 25, 2001 (the "Assignment")
among Equifax
Inc. (the "Original Lessee"), Certegy, as Assignee of the Original
Lessee,
Prefco VI Limited Partnership (the "Lessor"), and SunTrust Bank
(the "Agent" or
the "Lender"), as the Agent and the Lender. This opinion is being
furnished to
you at the request of Certegy pursuant to Section 7 of the
Assignment.
This opinion letter is limited by, and is
in accordance with, the January
1, 1992 edition of the Interpretative Standards applicable to Legal
Opinions to
Third Parties in Corporate Transactions adopted by the Legal
Opinion Committee
of the Corporate and Banking Law Section of the State Bar of
Georgia (the
"INTERPRETATIVE STANDARDS"), which Interpretative Standards are
incorporated in
this opinion letter by this reference.
In connection with this representation, I
have examined fully executed
counterparts of the following documents (together with the
Assignment, the
"Operative Documents"):
(a) the
Master Agreement (Florida Property), dated as of December 30,
1999, as amended (the "Master Agreement"), among Original Lessee,
the Lessor,
Atlantic Financial Group, Ltd. and the Agent;
(b) Lease
Agreement dated as of December 30, 1999 between Lessor and
Original Lessee; and
(c)
Operative Guaranty dated as of December 30, 1999 made by
Original
Lessee in favor of the Funding Parties as defined in such Operative
Guaranty.
In the capacity described above, I also
have considered such matters of law
and of fact, together with such other records and documents of
Certegy,
certificates of officers or other representatives of Certegy
(including, but not
limited to, the organizational documents for Certegy
<PAGE>
certified to be true and complete in certificates delivered by
Certegy to the
Agent and the Lender and the representations and covenants of the
parties to the
Assignment as set forth therein), certificates of public officials,
and such
other documents as I have deemed appropriate for the opinions and
confirmations
herein set forth.
The opinions set forth herein are limited
to the laws of the State of
Georgia (the "STATE") and any applicable federal laws of the United
States.
Without limiting the provisions of the
Interpretative Standards, I express
no opinion with respect to any matters regarding compliance with
any fiduciary
or similar obligations by any person or entity, or regarding any
matters related
to solvency or capitalization or otherwise involving the financial
capacity or
viability of any person or entity. I also note that certain
consents and waivers
relevant to any opinions in paragraph 4 below are subject to time
limits and/or
conditions that require additional actions in the future.
Based upon the foregoing, and subject to
the other exceptions, assumptions
and qualifications set forth or incorporated herein by reference,
it is my
opinion that:
1. Certegy is duly organized as a
corporation, and is existing, and in good
standing, under the laws of the State of Georgia. Certegy is duly
qualified as a
foreign corporation and in good standing in Wisconsin.
2. Certegy has the corporate power to
execute and deliver the Assignment,
to perform its obligations thereunder, and to own and use its
assets and to
conduct its business.
3. Certegy has duly authorized the
execution and delivery of the Assignment
and all performance by it thereunder.
4. The execution and delivery by Certegy
of the Assignment do not, and if
Certegy were now to perform its obligations thereunder, such
performance would
not result in any:
(i)
violation of the articles of incorporation or by-laws of
Certegy;
(ii)
violation of any existing United States federal or State
constitution, statute, regulation, rule, order or law to which
such
Certegy or
its assets are subject;
(iii) breach
of or default of any material written agreements to
which, to my
knowledge, Certegy or its assets are subject;
(iv)
creation or imposition of any contractual lien or security
interest in,
on or against Certegy's assets under any material written
agreements
to which, to my knowledge, Certegy or its assets are
subject
(except as may be contemplated by the Assignment); or
<PAGE>
(v)
violation of any judicial or administrative decree, writ,
judgment
or order to
which, to my knowledge, Certegy or its assets are subject.
This opinion letter has been delivered
solely for the benefit of the
addressees and their respective transferees and counsel, as well as
Kilpatrick
Stockton LLP, pursuant to the Assignment and may not be relied upon
by any other
person or entity or for any other purpose without the express
written permission
of the undersigned.
Very truly yours,
/s/ Bruce S. Richards
Bruce S. Richards, Corporate Vice
President,
General Counsel and Secretary
of Certegy Inc.
<PAGE>
Exhibit C
ATTORNEYS
AT LAW
Suite 2800
1100 Peachtree Street
KILPATRICK STOCKTON
LLP
Atlanta, Georgia 30309-4530
Telephone: 404.815.6500
Facsimile: 404.815.6555
Web site: www.kilpatrickstockton.com
July 6, 2001
To Lessor, the Agent and the Lender as defined in the Master
Agreement
hereinafter referred to
Re: Florida Synthetic Lease Transaction
Ladies and Gentlemen:
We have served as special counsel for
Certegy Inc., a Georgia corporation
("Certegy"), in connection with the execution of that certain
Assignment and
Assumption of Lease and other Operative Documents dated as of June
25, 2001 (the
"Assignment") among Equifax Inc. (the "Original Lessee"), Certegy,
as Assignee
of the Original Lessee, Prefco VI Limited Partnership (the
"Lessor"), and
SunTrust Bank (the "Agent" or the "Lender"). This opinion is being
furnished to
you at the request of Certegy pursuant to Section 7 of the
Assignment.
This opinion letter is limited by, and is
in accordance with, the January
1, 1992 edition of the Interpretative Standards applicable to Legal
Opinions to
Third Parties in Corporate Transactions adopted by the Legal
Opinion Committee
of the Corporate and Banking Law Section of the State Bar of
Georgia (the
"INTERPRETATIVE STANDARDS"), which Interpretative Standards are
incorporated in
this opinion letter by this reference.
In connection with this representation, we
have examined fully executed
counterparts of the following documents (together with the
Assignment, the
"Operative Documents"):
(a) the
Master Agreement (Florida Property), dated as of December 30,
1999, as amended (the "Master Agreement"), among Original Lessee,
the Lessor,
Atlantic Financial Group, Ltd. and the Agent;
(b) Lease
Agreement dated as of December 30,1999 between Lessor and
Original Lessee; and
(c)
Operative Guaranty dated as of December 30, 1999 made by
Original
Lessee in favor of the Funding Parties as defined in such Operative
Guaranty.
In the capacity described above, we also
have considered such matters of
law and of fact, together with such other records and documents of
Certegy,
certificates of officers or other
ATLANTA - AUGUSTA - BRUSSELS - CHARLOTTE - LONDON
MIAMI - RALEIGH - RESTON -
STOCKHOLM - WASHINGTON - WINSTON-SALEM
<PAGE>
KILPATRICK STOCKTON LLP
July 6, 2001
Page 2
representatives of Certegy (including, but not limited to, the
organizational
documents for Certegy certified to be true and complete in
certificates
delivered by Certegy to the Agent and the Lender and the
representations and
covenants of the parties to the Assignment as set forth therein),
certificates
of public officials, and such other documents as we have deemed
appropriate for
the opinions and confirmations herein set forth.
We also have
examined a copy of, and with your permission, we have
relied upon the opinion letter of Bruce S. Richards, Esq.,
Corporate Vice
President, General Counsel and Secretary of Certegy, of even date
herewith
addressed to you with respect to the matters covered thereby.
The opinions set forth herein are limited
to the laws of the State of
Georgia (the "STATE") and any applicable federal laws of the United
States.
Without limiting the provisions of the
Interpretative Standards, we express
no opinion with respect to any matters regarding compliance with
any fiduciary
or similar obligations by any person or entity, or regarding any
matters related
to solvency or capitalization or otherwise involving the financial
capacity or
viability of any person or entity.
Based upon the foregoing, and subject to
the other exceptions, assumptions
and qualifications set forth or incorporated herein by reference,
it is our
opinion that:
1. Certegy has duly executed and delivered
the Assignment.
2. No consent, approval, authorization or
other action by, or notice to or
filing with, any court or administrative or governmental body of
the United
States or the State (other than the filing of the Assignment in the
records of
the appropriate governmental authority) is required in connection
with the
execution and delivery by Certegy of the Assignment or the
incurrence by Certegy
of its obligations thereunder, except such consents, approvals,
authorizations,
registrations or filings as have been made or obtained and are in
full force and
effect.
3. The Assignment is enforceable against
Certegy.
4. To our knowledge, Certegy is not an
"investment company" within the
meaning of the Investment Company Act of 1940, as amended.
5. To our knowledge, Certegy is not 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.
<PAGE>
KILPATRICK STOCKTON LLP
July 6, 2001
Page 3
This opinion letter has been delivered
solely for the benefit of the
addressees and their respective transferees and counsel pursuant to
the
Assignment and may not be relied upon by any other person or entity
or for any
other purpose without the express written permission of the
undersigned.
Very truly yours,
KILPATRICK STOCKTON LLP
By: /s/ Hilary P. Jordan
------------------------------------
Hilary P. Jordan, a Partner
<PAGE>
================================================================================
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.
<PAGE>
TABLE OF CONTENTS
(Lease Agreement)
Page
<PAGE>
APPENDIX A
to
Master Agreement (Florida Property), Lease,
and Loan Agreement
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 versa;
(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, Section,
Appendix, Schedule or Exhibit means such
Article or Section thereof or
Appendix, Schedule or Exhibit thereto;
(vii)
"hereunder", "hereof", "hereto" and words of similar import
shall be deemed references to an
Operative
<PAGE>
Document as a whole and not to any
particular Article, Section or other
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 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 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
-2-
<PAGE>
to the extent) of such conflict, the Master Agreement shall prevail
and control.
D. Legal Representation of the Parties.
The Operative Documents were
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 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 the
Loan Agreement and the Master Agreement.
"A Note" is defined in Section 2.2 of the
Loan Agreement.
"A Percentage" means 78%.
"Accounts Management Assets and
Liabilities" has the meaning set forth in
the CSC Agreement.
"Address" means with respect to any
Person, its address set forth in
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
"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-
<PAGE>
"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. Section 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-
<PAGE>
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-
<PAGE>
(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., Johns 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-
<PAGE>
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-
<PAGE>
"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. Sections 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. Sections 9601-9657,
(CERCLA), the
Clean Air Act, 42 U.S.C.
-11-
<PAGE>
Sections 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-
<PAGE>
"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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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. Section 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-
<PAGE>
"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-
<PAGE>
"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-
<PAGE>
"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
Jones Markets, Inc. Page 3750 (formerly known as Dow Jones 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 Jones 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-
<PAGE>
"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-
<PAGE>
"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-
<PAGE>
"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 Moody's (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 Moody's
(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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
(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-
<PAGE>
"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-
<PAGE>
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-
<PAGE>
"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-
<PAGE>
================================================================================
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
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S>
<C>
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
</TABLE>
-i-
<PAGE>
<TABLE>
<S>
<C>
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
</TABLE>
-ii-
<PAGE>
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-
<PAGE>
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.
<PAGE>
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 Mayer, Brown & Platt, 190 South LaSalle Street,
Chicago, Illinois
2
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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, Ward,
Emmanuel,
Smith &
Cutler, 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
<PAGE>
(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
<PAGE>
(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 Aldridge &
Norman
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
<PAGE>
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
<PAGE>
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 Arthur Andersen & 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
<PAGE>
(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
<PAGE>
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
<PAGE>
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. Section 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
<PAGE>
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. Section 18-2-22 or as
defined in
Section 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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
(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
