Exhibit 10.36
GEORGIA LEASE SUPPLEMENT AND SHORT FORM
THIS GEORGIA LEASE SUPPLEMENT (this "Lease Supplement") dated as of
August 29, 2001 between ATLANTIC FINANCIAL GROUP, LTD., a Texas limited
partnership doing business in Georgia as Atlantic Financial Group, Ltd. (L.P.)
(Texas), with an address at 2808 Fairmount, Suite 250, Dallas, Texas 75201, as
the lessor (the "Lessor"), and CHOICEPOINT INC., a Georgia corporation, with an
address of 1000 Alderman Drive, Alpharetta, Georgia 30005, as lessee (the
"Lessee").
WHEREAS Lessor is the owner of the Land described on Appendix B hereto
and wishes to lease the Land together with any Buildings and other improvements
thereon or which hereafter may be constructed thereon pursuant to the Lease,
together with any easements, rights and appurtenances thereto now owned or
hereafter acquired, to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained 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. For purposes of this
Lease Supplement, capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in Appendix A to this Lease
Supplement and the rules of interpretation and Documentary Conventions set
forth in Appendix A shall apply to this Lease Supplement.
SECTION 2. The Properties. Attached hereto as Appendix B is the
description of certain land (the "Land"). Effective upon the execution and
delivery of this Lease Supplement by Lessor and Lessee, such Land together with
any Buildings and other improvements on such Land or which hereafter may be
constructed on such Land pursuant to the Lease (collectively, the "Subject
Property") shall be subject to the terms and provisions of the Lease and Lessor
hereby demises, leases, grants, conveys, transfers and assigns the Subject
Property to Lessee to the extent of those interests, rights, titles, estates,
powers and privileges provided for in the Lease, the provisions of which are
incorporated herein by this reference. The Subject Property does not include
any inventory of Lessee held by Lessee for resale or rental.
SECTION 3. Amendments to Lease with Respect to Subject
Property. Effective upon the execution and delivery of this Lease Supplement by
Lessor and Lessee, the following terms and provisions shall apply to the Lease
with respect to the Subject Property:
TO THE EXTENT THIS LEASE SUPPLEMENT AND THE LEASE ARE A DEED TO SECURE DEBT AND
SECURITY AGREEMENT, THIS INSTRUMENT IS A "CONSTRUCTION MORTGAGE" AS THAT TERM
IS DEFINED IN O.C.G.A. ss. 11-9-313(1)(c).
3.1 ARTICLE IV of the Lease is hereby amended to include
the following to the extent the Lease and the Lease Supplement are a
deed to secure debt and security agreement creating for Lessor and any
successor thereto title and a security interest and security title in
the Subject Property: LESSEE HEREBY EXPRESSLY WAIVES ANY RIGHT LESSEE
MAY HAVE UNDER THE CONSTITUTION OF THE STATE OF GEORGIA OR THE
CONSTITUTION OF THE UNITED STATES OF AMERICA TO NOTICE EXCEPT AS MAY
BE EXPRESSLY PROVIDED FOR IN THE OPERATIVE DOCUMENTS OR TO A JUDICIAL
HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED TO
LESSOR BY THIS LEASE AND LEASE SUPPLEMENT, AND WAIVES LESSEE'S RIGHTS,
IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE UNDER POWER DULY
CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS LEASE AND LEASE
SUPPLEMENT ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS
CONSUMMATED WITHOUT PRIOR NOTICE EXCEPT AS MAY BE EXPRESSLY PROVIDED
FOR IN THE OPERATIVE DOCUMENTS OR JUDICIAL HEARING OR BOTH. LESSEE
FURTHER HEREBY EXPRESSLY WAIVES ALL HOMESTEAD EXEMPTION RIGHTS, IF
ANY, WHICH LESSEE OR LESSEE'S FAMILY MAY HAVE PURSUANT TO THE
CONSTITUTION OF THE UNITED STATES, THE STATE OF GEORGIA OR ANY OTHER
STATE OF THE UNITED STATES, IN AND TO THE PREMISES AS AGAINST THE
COLLECTION OF THE INDEBTEDNESS, OR ANY PART THEREOF. ALL WAIVERS BY
LESSEE IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY BY LESSEE, AFTER LESSEE HAS BEEN AFFORDED AN OPPORTUNITY TO
BE INFORMED BY COUNSEL OF LESSEE'S CHOICE AS TO POSSIBLE ALTERNATIVE
RIGHTS. LESSEE'S EXECUTION OF THIS LEASE AND LEASE SUPPLEMENT SHALL BE
CONCLUSIVE EVIDENCE OF THE WAIVER AND THAT SUCH WAIVER HAS BEEN
VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY MADE.
3.2 ARTICLE XI of the Lease is hereby deleted in its
entirety and inserted in lieu thereof is the following:
Lessor and Lessee intend that the Lease and this Lease
Supplement be treated, for accounting purposes, as an
operating lease creating a leasehold estate, and not merely a
usufruct. For all other purposes, Lessee and Lessor intend
that the transaction represented by this Lease be treated as
a financing transaction; for such purposes, it is the
intention of the parties hereto (i) that THIS CONVEYANCE IS
INTENDED to operate and be construed as a deed passing legal
title to the Subject Property and all rents, issues, profits
and proceeds (including, without limitation, Awards and Loss
Proceeds) of the Subject Property to Lessor pursuant to the
laws of the State of Georgia governing deeds to secure debt,
and is also a security agreement granting a present and
continuing security interest and security title in the
portion of the Subject Property and all rents, issues,
profits and proceeds (including, without limitation, Awards
and Loss Proceeds) of the Subject Property constituting
personal property or fixtures, and it is not a
mortgage, (ii) that Lessee hereby grants, bargains, sells,
conveys, assigns, transfers and sets over unto Lessor and its
successors and assigns the Subject Property TO HAVE AND TO
HOLD the Subject Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of
Lessor and the successors and assigns of Lessor, forever, IN
FEE SIMPLE, (iii) that Lessor shall have, as a result of such
determination, all of the rights, powers and remedies of the
holder of a deed to secure debt available under Applicable
Law to take possession of and sell (whether by foreclosure or
otherwise) the Subject Property, (iv) that the effective date
of such deed to secure debt shall be the effective date of
this Lease, (v) that the recording of this Lease or a Lease
Supplement shall be deemed to be the recording of such deed
to secure debt, and (vi) that such deed to secure debt shall
secure payment and performance of: (a) the Lease and the
other Operative Documents, together with any and all renewals
and/or extensions thereof, bearing interest and default
interest and payable as therein provided in installments, the
final installment of which is due and payable on August 29,
2017 including discretionary extensions, if not sooner paid
or accelerated (collectively, the "Liabilities"); provided,
however, that notwithstanding anything herein to the
contrary, the maximum principal amount of the Liabilities
secured hereby at any one time shall not exceed Fifty-Two
Million Two Hundred Thousand and No/100 Dollars
($52,200,000.00), plus all costs of enforcement and
collection of the Lease and the other Operative Documents as
provided for pursuant to such documents; (b) any and all
additional advances made by Lessor to protect or preserve the
Subject Property or the lien hereof on the Subject Property,
or for taxes, assessments or insurance premiums as
hereinafter provided (whether or not the original Lessee
remains the owner of the Subject Property at the time of such
advances); and (c) any and all other indebtedness, however
incurred, which may now or hereafter be due and owing from
Lessee to Lessor, now existing or hereafter coming into
existence, however, and whenever incurred or evidenced,
whether express or implied, direct or indirect, absolute or
contingent, or due or to become due, and all renewals,
modifications, consolidations and extensions thereof.
3.3 "Reasonable fees of attorneys" and similar terms as
used in the Lease shall mean reasonable fees of attorneys actually
incurred without regard for any statutory presumption."
3.4 Section 13.1 of the Lease is hereby amended by
adding the following as a new clause (h):
(c) To the extent the Lease and the Lease Supplement are
a deed to secure debt and security agreement creating for
Lessor and any successor thereto title and a security
interest and security title in the Subject Property, Lessor
may, at its
option and election and without notice to Lessee, do any one
or more of the following:
(i) Acceleration of Liabilities.
Lessor may immediately declare all or any portion of
the Liabilities to be immediately due and payable,
whereupon the same shall be and shall become due and
payable forthwith without presentment, demand,
protest or notice of any kind, all of which are
expressly waived by Lessee.
(ii) Entry and Possession. Lessor may
enter upon the Subject Property or any part thereof
and take possession thereof, excluding therefrom
Lessee and all Lessors, employees and
representatives of Lessee; employ a manager of the
Subject Property or any part thereof; hold, store,
use, operate, manage, control, maintain and lease
the Subject Property or any part thereof; conduct
business thereon; make all necessary and appropriate
repairs, renewals and replacements; insure or keep
the Subject Property insured; and carry out or enter
into agreements of any kind with respect to the
Subject Property.
(iii) Collection of Rent. Lessor may
collect and receive all Rent, and apply the same to
the Liabilities, after deducting therefrom all
costs, charges and expenses of taking, holding,
managing and operating the Subject Property,
including the reasonable fees and expenses of
Lessor's attorneys and Lessors actually incurred
without regard for any statutory presumption.
(iv) Payments. Lessor may pay any sum
or sums deemed necessary or appropriate by Lessor to
protect the Subject Property or any part thereof or
Lessor's interest therein.
(v) Other Remedies. Lessor may
exercise all rights and remedies contained in any
other instrument, document, agreement or other
writing now or hereafter evidencing or securing the
Liabilities or any part thereof, or heretofore,
concurrently herewith or in the future executed by
Lessee in favor of Lessor in connection with any
transaction resulting in the Liabilities or any part
thereof.
(vi) Appointment of Receiver. Lessor
may make application to any court and be entitled to
the appointment of a receiver to take charge of the
Subject Property or any part thereof without
alleging or proving, or having any consideration
given to, the insolvency of Lessee, the value of the
Subject Property as security for the Liabilities or
any other matter usually incident to the appointment
of a receiver.
(vii) UCC Remedies. With respect to the
personal property and fixtures in which a security
interest is herein granted, at Lessor's option,
Lessor may exercise any or all of the rights
accruing to a secured party
under this instrument, the Uniform Commercial Code
(O.C.G.A. ss.ss. 11-9-101 et seq.) and any other
applicable law. Lessee shall, if Lessor requests,
assemble all such personal property and make it
available to Lessor at a place or places, to be
designated by Lessor, which shall be reasonably
convenient to Lessee and Lessor. Any notice required
to be given by Lessor of a public or private sale,
lease or other disposition of the personal property
or any other intended action by Lessor shall be
addressed to the Lessee at the address set forth in
Schedule 8.2, attached hereto and by this reference
made a part hereof, or such other address as the
Lessee shall specify to the Lessor and shall be
deemed to have been given (i) the Business Day after
being sent, if sent by overnight courier service;
(ii) the Business Day received, if sent by
messenger; (iii) the day sent, if sent by facsimile
and confirmed electronically or otherwise during
business hours of a Business Day (or on the next
Business Day if otherwise sent by facsimile and
confirmed electronically or otherwise); or (iv)
three Business Days after being sent, if sent by
registered or certified mail, postage prepaid. Such
notice shall be provided to Lessee, at least five
(5) business days prior to such proposed action, and
if so given shall constitute reasonable and fair
notice to Lessee of any such action.
(viii) Power of Sale. Lessor may sell the
Subject Property, or any part or parcel thereof or
any interest of Lessee therein separately, at
Lessor's discretion, with or without taking
possession thereof, at a public sale or public sales
before the courthouse door of the county in which
the Subject Property or any part thereof is located,
to the highest bidder for cash, after first giving
notice of the time, place and terms of such sale or
sales by advertisement published once a week for
four consecutive weeks immediately preceding the
date of sale (without any regard for the number of
days between the date the first such notice is
published and the date on which any such sale
commences) in the newspaper in which advertisements
of sheriff's sales are published in such county.
Such advertisement so published shall be notice to
Lessee, and Lessee hereby expressly waives all other
notices. Lessor may bid and purchase at any such
sale, and Lessor, as Lessor and attorney-in-fact for
Lessee and in Lessee's name, may execute and deliver
to the purchaser or purchasers at any such sale a
sufficient conveyance of the Subject Property, or
the part or parcel thereof or the interest therein
which is sold. Lessor's conveyance may contain
recitals as to the occurrence of any event of
default under this Security Deed, and such recitals
shall be presumptive evidence that all preliminary
acts prerequisite to any such sale and conveyance
were in all respects duly complied with. The
recitals made by Lessor shall be binding and
conclusive upon Lessee, and the sale and conveyance
made by Lessor shall divest Lessee of all right,
title, interest and equity that Lessee may have or
have had in, to and under the Subject Property, or
the part or parcel thereof or the interest therein
which is sold, and shall vest the same in the
purchaser or purchasers at such sale or sales. Such
conveyance shall be effectual to bar all equity of
redemption,
including all statutory, redemption, homestead,
dower, courtesy, and all other exemptions of the
Lessee or its successors or assigns. Lessor may hold
one or more sales hereunder until the Liabilities
have been satisfied in full. Lessee hereby
constitutes and appoints Lessor as Lessee's agent
and attorney-in-fact to make such sale or sales, to
execute and deliver such conveyance or conveyances,
and to make such recitals, and Lessee hereby
ratifies and confirms all of the acts and doings of
Lessor as Lessee's agent and attorney-in-fact
hereunder. Lessor's agency and power as
attorney-in-fact hereunder are coupled with an
interest, cannot be revoked by bankruptcy,
insolvency, incompetency, death, dissolution or
otherwise, and shall not be exhausted until the
Liabilities have been satisfied in full. The
proceeds of each sale by Lessor hereunder shall be
applied first to the costs and expenses of the sale
and of all proceedings in connection therewith
(including without limitation the reasonable fees
and expenses of Lessor's attorneys actually incurred
in connection therewith without regard for any
statutory presumption), then to the payment of the
balance of the Liabilities, and the remainder, if
any, shall be paid to Lessee or to the parties
entitled thereto by law. If the proceeds of any sale
are not sufficient to pay the Liabilities in full,
Lessor shall determine, at Lessor's option and in
Lessor's discretion, the portions of the Liabilities
to which the proceeds (after deducting therefrom the
costs and expenses of the sale and all proceedings
in connection therewith) shall be applied and in
what order the proceeds shall be so applied. Lessee
covenants and agrees that, in the event of any sale
pursuant to the agency and power herein granted,
Lessee shall be and become a tenant holding over and
shall deliver possession of the Subject Property, or
the part thereof or interest therein sold, to the
purchaser or purchasers at the sale or be summarily
dispossessed in accordance with the provisions of
law applicable to tenants holding over.
3.5. Lessee represents and warrants Lessor that neither
all of the Subject Property nor any part thereof is to be used as a
dwelling place by Lessee at the time this Lease Supplement is entered
into and, accordingly, the notice requirements of O.C.G.A. ss.
44-14-162.2 shall not be applicable to any exercise of the power of
sale contained in this Lease Supplement.
3.6. The interest of Lessor under this Lease Supplement
and the liability and obligation of Lessee for the payment of the
Liabilities arise from a "commercial transaction" within the meaning
of O.C.G.A. ss. 44-14-260(1). Accordingly, pursuant to O.C.G.A. ss.
44-14-263, Lessee waives any and all rights which Lessee may have to
notice prior to seizure by Lessor of any interest in personal property
of Lessee which constitutes part of the Subject Property, whether such
seizure is by writ of possession or otherwise.
3.7. To the extent the Lease and the Lease Supplement are
a deed to secure debt and security agreement creating for Lessor and
any successor thereto title and a security interest and security title
in the Subject Property, Lessee warrants that Lessee has good and
marketable fee simple title to the Subject Property, that Lessee is
lawfully
seized and possessed of the Subject Property, that Lessee has the
right to convey the Subject Property, that the Subject Property is
unencumbered except for those matters permitted by the Master
Agreement and the Lease, and that Lessee shall forever warrant and
defend the title to the Subject Property, against the claims of all
persons whomsoever.
3.8 To the extent the Lease and this Lease Supplement
are a deed to secure debt and security agreement, then should the
indebtedness secured by such deed to secure debt be paid according to
the tenor and effect thereof when the same shall become due and
payable, and should Lessee perform all covenants contained in such
deed to secure debt in a timely manner, then the deed to secure debt
shall be cancelled and surrendered.
SECTION 4. Ratification; Incorporation. Except as specifically
modified hereby, the terms and provisions of the Lease are hereby ratified and
confirmed and remain in full force and effect. The terms of the Lease (as
amended by this Lease Supplement) are by this reference incorporated herein and
made a part hereof.
SECTION 5. Original Lease Supplement. The single executed
original of this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL
EXECUTED COUNTERPART" on the signature page thereof and containing the receipt
of the Agent therefor on or following the signature page thereof shall be the
original executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed and sealed by an officer thereunto duly
authorized as of the date and year first above written.
Signed, sealed and delivered ATLANTIC FINANCIAL GROUP, LTD.,
in the presence of: at the Lessor
/s/ Pattie Keath By: Atlantic Financial Managers,
- ----------------------------- Inc., its General Partner
Unofficial Witness
By: /s/ Stephen S. Brookshire
Name: Stephen S. Brookshire
Title: President
/s/ Lisa M. Williams
- -----------------------------
Notary Public
[NOTARIAL SEAL]
My Commission Expires: [CORPORATE SEAL]
December 17, 2005
Signed, sealed and delivered CHOICEPOINT INC., as the Lessee
in the presence of:
/s/ Mary M. Young By: /s/ David E. Trine
- ------------------------------ Name: David E. Trine
Unofficial Witness Title: Treasurer
/s/ Laura K. Peterson [CORPORATE SEAL]
- ------------------------------
Notary Public
[NOTARIAL SEAL]
My Commission Expires:
June 24, 2004
Receipt of this original counterpart of the foregoing Lease Supplement is
hereby acknowledged as of the date hereof.
SUNTRUST BANK, as the Agent
By: /s/ Daniel S. Komitor
Name: Daniel S. Komitor
Title: Director
APPENDIX B
LEGAL DESCRIPTION
TRACT I
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 1041, 1046 and
1109 of the 2nd District, 1st Section, City of Alpharetta, State of Georgia and
being more particularly described as follows:
Commencing at the intersection of the westerly right-of-way of Windward
Concourse (110' R/W) and the northerly right-of-way of Alderman Drive (variable
R/W); thence along the northerly right-of-way of Alderman Drive in a westerly
and southwesterly direction 1981.46 feet to an iron pin set and the True Point
of Beginning; thence following said right-of-way along a curve to the left an
arc distance of 43.29 feet to a point, said arc having a radius of 524.50 feet
and a chord which bears S22(degree)51'52"W a distance of 43.28 feet; thence
continuing along said right-of-way S20(degree)30'00"W a distance of 58.11 feet
to a point; thence along said right-of-way along a curve to the left an arc
distance of 254.84 feet to a point, said arc having a radius of 524.50 feet and
a chord which bears S06(degree)34'51"W a distance of 252.34 feet; thence along
said right-of-way S07(degree)20'19"E a distance of 156.08 feet to a point;
thence along a curve to the left an arc distance of 54.71 feet to a point, said
arc having a radius of 524.50 feet and a chord which bears S10(degree)17'49"E a
distance of 54.69 feet to an iron pin found; thence following said right-of-way
along a curve to the left an arc distance of 274.01 feet to an iron pin set,
said arc having a radius of 524.50 feet and a chord which bears
S28(degree)16'25"E a distance of 270.91 feet; thence leaving said right-of-way
S46(degree)29'46"W a distance of 47.48'; thence N63(degree)41'12"W a distance
of 126.60 feet to an PK nail set; thence S28(degree)06'03"W a distance of
183.24 feet to an PK nail set; thence N70(degree)40'47" W a distance of 45.69
feet to an PK nail set; thence S19(degree)17'18"W a distance of 308.88 feet to
an iron pin set; thence S70(degree)19'23"E a distance of 149.73 feet to an iron
pin set; thence S 36(degree)39'41"W a distance of 96.61 feet to an iron pin
set; thence S68(degree)23'28"W a distance of 276.66 feet to a computed point in
the centerline of Camp Creek; thence along the centerline of Camp Creek
N15(degree)45'02"W a distance of 636.39 feet to a computed point; thence
continuing along said creek N21(degree)22'20"W 246.03 feet to a point; thence N
12(degree)26'10"W a distance of 286.31 feet; thence continuing along said creek
N20(degree)59'52"W a distance of 261.90 feet to a point on the southerly
right-of-way of Georgia State Highway 400 (Variable R/W); thence along said
right-of-way N46(degree)01'18"E a distance of 89.20 feet to an iron pin set;
thence S88(degree)55'51"E a distance of 463.95 to an iron pin set; thence N
87(degree)21'53"E a distance of 354.22 feet to an iron pin set and the True
Point of Beginning.
Said tract containing 794,530 sq. ft. or 18.240 acres.
THE ABOVE-DESCRIBED PROPERTY is shown as 18.240 acres on and is described
according to plat of ALTA/ACSM survey prepared for Atlantic Financial Group,
Ltd., et al., by Seaton G. Shepherd, Georgia Registered Land Surveyor No. 2136,
Grant Shepherd & Associates, dated August 9, 2001, last revised August 29,
2001, which said plat of survey is incorporated herein by this reference and
made a part of this description.
TOGETHER WITH Declaration of Covenants, Conditions and Restrictions for
Windward Business Center Association recorded in Deed Book 8700, page 362,
aforesaid records; with Re-Recording Declaration of Covenants, Conditions and
Restrictions for Winward Business Center Associates being recorded in Deed Book
8750, page 82, aforesaid records; as amended to include subject property by
Amendment recorded in Deed Book 20420, page 200, aforesaid records.