EXHIBIT 10.31
Prepared by and after recording,
return to:
Xxx X. Xxxxxx, Esq.
Xxxxx, Xxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
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GEORGIA LEASE SUPPLEMENT NO. ONE AND SHORT FORM
THIS GEORGIA LEASE SUPPLEMENT NO. ONE (this "Lease Supplement") dated
as of July 31, 1997 between SUNTRUST BANKS, INC., with an address at 00 Xxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000, as the lessor (the "Lessor"), and CHOICEPOINT
INC., with an address of 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, a
Georgia corporation, as lessee (the "Lessee").
WHEREAS Lessor is the owner of the Land described on Schedule I hereto
and wishes to lease the Land together with any Building and other improvements
thereon or which thereafter may be constructed thereon pursuant to the Lease 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 the Lease Agreement, dated
as of July 31, 1997, between Lessee and Lessor; and the rules of interpretation
set forth in Appendix A to the Lease shall apply to this Lease Supplement.
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).
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SECTION 2. The Properties. Attached hereto as Schedule I is the
description of certain Land (the "Subject Property"). Effective upon the
execution and delivery of this Lease Supplement by Lessor and Lessee, such Land,
together with any Building and other improvements thereon or which thereafter
may be constructed thereon pursuant to the Lease 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:
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
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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 Lease be treated as a deed
to secure debt and security agreement, creating for Lessor and
any successor thereto legal title to a portion of the Subject
Property constituting real property pursuant to the laws of
the State of Georgia governing deeds to secure debt and a
present and continuing security interest and security title in
the portion of the Subject Property constituting personal
property or fixtures, and not as a mortgage, (ii) 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, (iii) that the effective date of such deed to secure
debt shall be the effective date of this Lease, (iv) that the
recording of this Lease or a Lease Supplement shall be deemed
to be the recording of such deed to secure debt, (v) that for
such purposes the Lessee hereby GRANTS, BARGAINS, SELLS,
CONVEYS, AND TRANSFERS, the Subject Property to the Lessor,
and (vi) that such deed to secure debt shall secure payment
and performance of: (a) the Lease and the other Operative
Documents and all of the other Obligations (collectively, the
"Lessee Liabilities"), together with any and all renewals
and/or extensions of the Lessee Liabilities, bearing interest
and default interest and payable as therein provided in
installments, the final installment of which is due and
payable on July 31, 2007, if not sooner paid or accelerated;
provided, however, that notwithstanding anything herein to the
contrary, the maximum principal amount of the Lessee
Liabilities secured hereby at any one time shall not exceed
Twenty-Two Million
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Dollars ($22,000,000), plus all costs of enforcement and
collection of this 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(c) of the Lease is hereby deleted in its
entirety and inserted in lieu thereof is the following:
(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 Lessee Liabilities.
Lessor may immediately declare all or any portion of
the Lessee 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
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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
Lessee 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 Lessee
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 Lessee 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 Lessee 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. xx.xx. 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
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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
weeks (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
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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. Lessor may hold one or more sales
hereunder until the Lessee 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 Lessee 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 Lessee
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 Lessee Liabilities in full, Lessor shall
determine, at Lessor's option and in Lessor's
discretion, the portions of the Lessee 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
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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 Lessee
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.
00-00-000, 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 expressly set forth in Exhibit
"B" attached hereto and by this reference made a part hereof, 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
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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" 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.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA.
SECTION 7. Counterpart Execution. This Lease Supplement may be
executed in any number of counterparts and by each of the parties hereto in
separate counterparts, all such counterparts together constituting but one and
the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
Signed, sealed and delivered SUNTRUST BANKS, INC., as the
before me this 28th day of Lessor
July, 1997.
By /s/ X. X. X'Xxxxxxxx
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/s/ R. Xxxx Xxxxxxx Name: Xxxxxxx X. X'Xxxxxxxx
-------------------------------- -----------------------------
Unofficial Witness Title: SVP & Controller
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/s/ Xxxxxx X. Xxx
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Notary Public
[NOTARIAL SEAL]
My Commission Expires:
1-30-2000
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LEASE AGREEMENT
S-1
Signed, sealed and delivered CHOICEPOINT INC., as the
before me this 28th day of Lessee
July, 1997.
By:/s/ Xxxx X. Curling
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/s/ Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Curling
----------------------------------- ---------------------------
Unofficial Witness Title: Executive Vice President
------------------------
Chief Financial Officer
------------------------
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Notary Public
[NOTARIAL SEAL]
My Commission Expires:
Notary Public Xxxx County, Georgia
My Commission Expires June 24, 2000
-----------------------------------
S-2
