-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D34Ybn23VuwFmQF0iWQ9UR57pq4xFOK9iKrIXRPaS9iqAgcz3hubbCcp9uLicctQ +SUbDmQ2xymlfUjKI2h+jw== 0000950144-01-509076.txt : 20020410 0000950144-01-509076.hdr.sgml : 20020410 ACCESSION NUMBER: 0000950144-01-509076 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20010930 FILED AS OF DATE: 20011114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHOICEPOINT INC CENTRAL INDEX KEY: 0001040596 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-CONSUMER CREDIT REPORTING, COLLECTION AGENCIES [7320] IRS NUMBER: 582309650 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-13069 FILM NUMBER: 1787423 BUSINESS ADDRESS: STREET 1: 1000 ALDERMAN DR CITY: ALPHARETTA STATE: GA ZIP: 30005 BUSINESS PHONE: 7707526000 MAIL ADDRESS: STREET 1: CHOICEPOINT INC STREET 2: 1000 ALDERMAN DR CITY: ALPHARETTA STATE: GA ZIP: 30005 10-Q 1 g72515e10-q.txt CHOICEPOINT INC [ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended SEPTEMBER 30, 2001 ---------------------- or [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to ----------------- ----------------- Commission File Number: 1-13069 CHOICEPOINT INC. - ------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Georgia 58-2309650 - ---------------------------------------------- ------------------------------ (State or other jurisdiction of incorporation (I.R.S. Employer or organization) Identification No.) 1000 Alderman Drive, Alpharetta, Georgia 30005 - ------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) (770) 752-6000 - ------------------------------------------------------------------------------- (Registrant's telephone number, including area code) - -------------------------------------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. Class Outstanding at October 31, 2001 ----- ------------------------------- Common Stock, $.10 Par Value 62,871,927 CHOICEPOINT INC. FORM 10-Q QUARTER ENDED SEPTEMBER 30, 2001 INDEX
Part I. FINANCIAL INFORMATION Page No. -------- Item 1. Financial Statements Consolidated Statements of Income (unaudited) - Three Months Ended September 30, 2001 and 2000 and Nine Months Ended September 30, 2001 and 2000 .......................................................... 3 Consolidated Balance Sheets - September 30, 2001 (unaudited) and December 31, 2000 ....................................................... 4 Consolidated Statement of Shareholders' Equity (unaudited) - Nine months Ended September 30, 2001 ....................................................................... 5 Consolidated Statements of Cash Flows (unaudited) - Nine months Ended September 30, 2001 and 2000 .............................................................. 6 Notes to Consolidated Financial Statements ...................................................................... 7 Item 2. Management's Discussion and Analysis of Results of Operations and Financial Condition ........................................................... 12 Item 3. Quantitative and Qualitative Disclosures about Market Risk .............................................. 17 Part II. OTHER INFORMATION Item 1. Legal Proceedings ....................................................................................... 18 Item 2. Changes in Securities and Use of Proceeds ............................................................... 18 Item 3. Defaults Upon Senior Securities ......................................................................... 18 Item 4. Submission of Matters to a Vote of Security Holders ..................................................... 18 Item 5. Other Information........................................................................................ 18 Item 6. Exhibits and Reports on Form 8-K ........................................................................ 18 Signatures ...................................................................................................... 19 Exhibit Index ................................................................................................... 20
2 CHOICEPOINT INC. CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
Three Months Ended Nine Months Ended September 30, September 30, (In thousands, except per share data) 2001 2000 2001 2000 - -------------------------------------------------------------------------------------------------------------- Revenue $172,851 $151,504 $491,338 $446,710 Costs and expenses: Cost of services 103,234 87,707 288,363 262,155 Selling, general and administrative 31,202 31,671 95,534 99,939 Loss on sale of business 10,853 -- 10,853 -- Merger-related costs & unusual items -- -- 18,009 28,949 -------- -------- -------- -------- Total costs and expenses 145,289 119,378 412,759 391,043 Operating income 27,562 32,126 78,579 55,667 Interest expense, net 2,920 2,938 8,019 9,143 -------- -------- -------- -------- Income before income taxes 24,642 29,188 70,560 46,524 Provision for income taxes 24,630 11,675 43,414 22,188 -------- -------- -------- -------- Net income $ 12 $ 17,513 $ 27,146 $ 24,336 ======== ======== ======== ======== Earnings per share - basic (Notes 5 & 6) $ 0.00 $ 0.29 $ 0.44 $ 0.41 Weighted average shares - basic 61,960 59,940 61,572 59,687 Earnings per share - diluted (Notes 5 & 6) $ 0.00 $ 0.28 $ 0.42 $ 0.39 Weighted average shares - diluted 65,593 63,138 65,058 62,568
The accompanying notes are an integral part of these consolidated statements. 3 CHOICEPOINT INC. CONSOLIDATED BALANCE SHEETS
September 30, 2001 December 31, 2000 (In thousands, except par values) (Unaudited) - -------------------------------------------------------------------------------------------------------- ASSETS Current assets: Cash and cash equivalents $ 60,294 $ 44,909 Accounts receivable, net of allowance for doubtful accounts of $5,322 in 2001 and $5,787 in 2000 145,343 109,709 Deferred income tax assets 6,458 7,788 Other current assets 20,949 15,923 --------- --------- Total current assets 233,044 178,329 Property and equipment, net 68,206 68,792 Goodwill, net 453,905 370,232 Deferred income tax assets 18,898 10,244 Other 93,037 76,842 --------- --------- Total Assets $ 867,090 $ 704,439 ========= ========= LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Short-term debt and current maturities of long-term debt $ 216,651 $ 638 Accounts payable 36,259 31,123 Accrued salaries and bonuses 27,321 29,919 Other current liabilities 73,758 44,659 --------- --------- Total current liabilities 353,989 106,339 Long-term debt, less current maturities 2,737 141,638 Postretirement benefit obligations 43,684 45,844 Other long-term liabilities 15,251 9,549 --------- --------- Total liabilities 415,661 303,370 --------- --------- Shareholders' equity: Preferred stock, $.01 par value; 10,000 shares authorized, no shares issued or outstanding -- -- Common stock, $.10 par value; shares authorized - 100,000; issued and outstanding - 62,850 in 2001 and 61,566 in 2000 6,285 6,157 Accumulated other comprehensive loss 288,200 258,796 Paid-in-capital 174,772 147,626 Retained earnings (4,438) (92) Accumulated other comprehensive loss Stock held by employee benefit trusts, at cost, 741 shares in 2001 and 701 shares in 2000 (13,390) (11,418) --------- --------- Total shareholders' equity 451,429 401,069 --------- --------- Total Liabilities and Shareholders' Equity $ 867,090 $ 704,439 ========= =========
The accompanying notes are an integral part of these consolidated balance sheets. 4 CHOICEPOINT INC. CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (Unaudited)
Accumulated Other Stock Held By (In thousands) Comprehensive Common Paid-in Retained Comprehensive Employee Income Stock Capital Earnings Loss Benefit Trusts Total ------------- -------- -------- --------- ------------- -------------- ----- Balance, December 31, 2000 $ 6,157 $ 258,796 $ 147,626 $ (92) $(11,418) $ 401,069 Net Income $ 27,146 -- -- 27,146 -- -- 27,146 Translation adjustments (119) -- -- -- (119) -- (119) Unrealized derivative losses on cash flow hedges (net of taxes of $2,817) (4,227) -- -- -- (4,227) -- (4,227) -------- Comprehensive income $ 22,800 ======== Restricted stock plans, net 13 1,740 -- -- -- 1,753 Stock purchased by employee benefit trusts 2 (2) (1,972) (1,972) Stock options exercised 113 20,033 -- -- -- 20,146 Tax benefit of stock options exercised -- 7,633 -- -- -- 7,633 -------- --------- --------- -------- -------- --------- Balance, September 30, 2001 $ 6,285 $ 288,200 $ 174,772 $ (4,438) $(13,390) $ 451,429 ======== ========= ========= ======== ========= =========
The accompanying notes are an integral part of this consolidated statement. 5 CHOICEPOINT INC. CONSOLIDATED STATEMENT OF CASH FLOWS (UNAUDITED)
Nine Months Ended September 30, (In thousands) 2001 2000 - -------------------------------------------------------------------------------------------------------------- Cash flows from operating activities: Net income $ 27,146 $ 24,336 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization 44,625 39,731 Merger-related costs and unusual items 18,009 28,949 Loss on sale of business, including income taxes 21,387 -- Compensation recognized under employee stock plans 1,753 904 Tax benefit of stock options exercised 7,633 4,000 Changes in assets and liabilities, excluding effects of acquisitions and divestiture: Accounts receivable, net (24,719) (12,982) Deferred income taxes (2,453) (3,661) Other current assets (5,875) (50) Current liabilities, excluding debt (11,046) (32,046) Other long-term liabilities, excluding debt (6,055) (868) --------- ------- Net cash provided by operating activities 70,405 48,313 Cash flows from investing activities: Acquisitions, net of cash acquired (153,007) (97,276) Cash proceeds from sale of businesses 49,000 1,500 Additions to short-term investments -- 16,198 Additions to property and equipment, net (16,230) (11,878) Additions to other assets, net (27,428) (13,258) --------- ------- Net cash used by investing activities (147,665) (104,714) Cash flows from financing activities: Proceeds from long-term debt 90,000 75,000 Payments on long-term debt (14,000) (80,368) Net short-term borrowings (1,410) (13) Purchases of stock held by employee benefit trust (1,972) -- Proceeds from exercise of stock options 20,146 13,899 --------- ------- Net cash provided by financing activities 92,764 8,518 --------- ------- Effect of foreign currency exchange rates on cash (119) (66) --------- ------- Net increase (decrease) in cash and cash equivalents 15,385 (47,949) Cash and cash equivalents, beginning of period 44,909 73,101 --------- ------- Cash and cash equivalents, end of period $ 60,294 $ 25,152 ========= =======
The accompanying notes are an integral part of these consolidated statements. 6 CHOICEPOINT INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS SEPTEMBER 30, 2001 (UNAUDITED) 1. ORGANIZATION ChoicePoint Inc., a Georgia corporation ("ChoicePoint" or the "Company"), is the leading provider of identification and credential verification services. ChoicePoint's businesses are focused on two primary markets - Insurance Services and Business & Government Services. The Insurance Services group provides information products and services used in the underwriting, claims and marketing processes by property and casualty insurers. Major offerings to the personal lines property and casualty market include claims history data, motor vehicle records, credit information, marketing services and modeling services. Additionally, ChoicePoint provides customized policy rating and issuance software and property inspections and audits to the commercial insurance market. Prior to the divestiture in August 2001 (see Note 12), ChoicePoint also provided laboratory testing services and related technology solutions to the life and health insurance market. The Business & Government Services group provides information products and services and direct marketing to Fortune 1000 corporations, consumer finance companies, asset-based lenders, legal and professional service providers, health care service providers and federal, state and local government agencies. Major offerings include pre-employment background screenings and drug testing administration services, public record searches, credential verification, due diligence information, Uniform Commercial Code searches and filings, database marketing services and people and shareholder locator information searches. 2. BASIS OF PRESENTATION ChoicePoint Inc. was established through the combination of the businesses that comprised the Insurance Services Group of Equifax Inc. ("Equifax") within a separate company and the subsequent spinoff on August 8, 1997 (the "Spinoff") of the Company's outstanding stock by Equifax as a stock dividend to the shareholders of Equifax. On May 16, 2000, ChoicePoint completed a merger (the "Merger") with DBT Online, Inc. ("DBT") by exchanging approximately 15.9 million shares (adjusted for stock split - see Note 6) of its common stock for all of the common stock of DBT. Each share of DBT was exchanged for .525 shares of ChoicePoint common stock (pre-split). In addition, outstanding DBT stock options were converted at the same exchange ratio into options to purchase approximately 2.7 million shares of ChoicePoint common stock. DBT was a leading nationwide provider of online public records data and other publicly-available information. The Merger has been accounted for as a pooling of interests, and accordingly, all prior period consolidated financial statements have been restated to include the combined results of operations, financial position and cash flows of DBT. There were no material transactions between ChoicePoint and DBT prior to the Merger. No material adjustments were required to conform the accounting policies of the two companies. The consolidated financial statements include the accounts of ChoicePoint and its subsidiaries. All material transactions between entities included in the consolidated financial statements have been eliminated. The consolidated financial statements have been prepared on the historical cost basis, and reflect all adjustments which are, in the opinion of management, necessary for a fair statement of the financial position of ChoicePoint as of September 30, 2001 and the results of operations for the three months and nine months ended September 30, 2001 and 2000, and the cash flows for the nine months 7 ended September 30, 2001 and 2000. The adjustments have been of a normal recurring nature. Certain prior period amounts have been reclassified to conform with the current period presentation. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States have been condensed or omitted. These financial statements should be read in conjunction with the notes to the financial statements included in ChoicePoint's Consolidated Financial Statements for the year ended December 31, 2000 as filed with the Securities and Exchange Commission in the Annual Report on Form 10-K (File No. 1-13069). The current period's results are not necessarily indicative of results to be expected for a full year. The Company recorded merger-related costs and unusual items of $18.0 million during the first quarter of 2001 and $28.9 million in the second quarter of 2000. The categories of costs incurred and the accrued balances at September 30, 2001 are summarized below:
Remaining (In thousands) Accrual at September 30, 2001 2000 2001 Expense Expense ------- ----------- ---------- Transaction costs $ -- $ -- $11,579 Personnel-related costs 313 1,832 3,780 Other merger integration costs 1,577 2,433 3,629 Asset impairments -- 12,693 6,954 Non-merger severance 445 982 2,353 Other one-time charges 81 69 654 ------- ----------- ---------- $2,416 $18,009 $28,949 ====== ======= =======
In the first quarter of 2001, the personnel-related costs of $1.8 million consisted primarily of stay bonuses for services rendered through March 31, 2001 and severance and termination benefit costs primarily related to the integration of the two public records platforms and related sales and marketing departments. Other merger integration costs of $2.4 million consisted primarily of duplicative data and lease exit costs. Asset impairments of $12.7 million primarily reflected the write-down of equipment and other long-lived assets deemed to be impaired based on the integration plan for the two public records platforms which was finalized in the first quarter of 2001. In the second quarter of 2000, transaction costs of approximately $11.6 million included investment banking, legal and printing fees and other costs directly related to the Merger. Personnel-related costs of approximately $3.8 million consisted of benefit conversions and stay bonuses for services rendered through June 30, 2000 and severance. Other merger integration costs primarily include the elimination of duplicative data costs. Asset impairments of approximately $7.0 million represent the write-down of goodwill and other long-lived assets. 3. USE OF ESTIMATES The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements as well as reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates. 4. REVENUE AND EXPENSE RECOGNITION ChoicePoint recognizes revenue when an agreement exists, prices are determinable, service and products are delivered and collectibility is reasonably assured. Revenues from software license and maintenance agreements are recognized in accordance with Statement of Position 97-2, "Software Revenue Recognition." Motor vehicle records registry revenue (the fee charged by states for motor vehicle records), material, shipping and postage charges in the Company's direct marketing business and other costs that are passed on by ChoicePoint to its customers ("pass-through revenue") are excluded from revenue and recorded as a reduction to cost of services in the consolidated financial statements. For the three months ended September 30, pass-through revenue was $117.6 million in 2001 and $98.1 million in 2000 and for 8 the nine months ended September 30, pass-through revenue was $341.0 million in 2001 and $300.5 million in 2000. 5. EARNINGS PER SHARE The income amount used in the numerator of the Company's earnings per share calculations is the same for both basic and diluted earnings per share. The average outstanding shares used in the denominator of the calculation for diluted earnings per share includes the dilutive effect of stock options. 6. STOCK SPLIT On March 7, 2001, ChoicePoint effected a three-for-two stock split in the form of a stock dividend payable to shareholders of record as of February 16, 2001. Unless otherwise stated, share and per share data for all periods presented have been adjusted to reflect the split. 7. DEBT In August 1997, ChoicePoint entered into a $250 million unsecured revolving credit facility (the "Credit Facility") with a group of banks. The Credit Facility bears interest at variable rates and is expandable to $300 million, subject to approval of the lenders. The commitment termination date and final maturity of the Credit Facility will occur in August 2002. We anticipate entering into a new credit facility in the first half of 2002. Total borrowings under the Credit Facility were $215 million at September 30, 2001. In addition, there was $4.4 million of other long-term debt outstanding at September 30, 2001. There were no short-term borrowings at September 30, 2001. In July 2001, the Company and certain of its subsidiaries entered into an agreement (the "Receivables Facility") with a financial institution whereby it may sell on a continuous basis, and without recourse, an undivided interest in all eligible trade accounts receivable subject to limitations. The Company will maintain the balance in the designated pool of accounts receivable sold by selling undivided interests in new receivables as existing receivables are collected. The Receivables Facility permits the advance of up to $100 million on the sale of accounts receivable. There were no borrowings under the Receivables Facility at September 30, 2001. 8. DERIVATIVE FINANCIAL INSTRUMENTS Effective January 1, 2001, ChoicePoint adopted Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative Instruments and Hedging Activities" ("SFAS 133"), and its corresponding amendments under SFAS No. 138. SFAS 133 requires the Company to measure all derivatives at fair value and to recognize them in the Consolidated Balance Sheet as an asset or liability, depending on ChoicePoint's rights or obligations under the applicable derivative contract. ChoicePoint's derivative instruments include interest rate swap agreements which have been designated as cash flow hedges and, as such, the effective portions of changes in fair value are reported in other comprehensive income ("OCI") and are subsequently reclassified into earnings when the hedged item affects earnings. These interest rate swap agreements have been entered into to hedge the variability of cash flows to be paid related to the Credit Facility and an operating lease. Changes in the fair value of derivative instruments not designated as hedging instruments and ineffective portions of hedges are recognized in earnings in the current period. The adoption of SFAS 133 as of January 1, 2001, resulted in a charge to OCI of $2.8 million, net of taxes. As of September 30, 2001, the cumulative change in OCI related to these derivatives is $4.2 million, net of taxes. For the three months and nine months ended September 30, 2001, the Company recorded the ineffectiveness related to these cash flow hedges to net interest expense. These amounts were not material. 9. STOCK OPTIONS During the first nine months of 2001, stock options to purchase approximately 1.8 million shares of ChoicePoint common stock were granted under the ChoicePoint Inc. 1997 Omnibus Stock Incentive Plan. Exercise prices of these options are equal to the fair market value on the date of grant. 9 10. COMPREHENSIVE INCOME Total comprehensive income for the three months and nine months ended September 30, 2001 and 2000 was as follows (in thousands):
Three Months Ended Nine months Ended -------------------------- --------------------------- September 30, September 30, 2001 2000 2001 2000 ---- ---- ---- ---- Net income (loss) $ 12 $ 17,513 $ 27,146 $24,336 Translation adjustments (108) (29) (119) 128 Change in unrealized net loss on investments -- -- -- 255 Unrealized derivative gain (loss) on cash flow hedges (net of taxes) -- -- -- -- (1,791) -- (4,227) -- ------- -------- -------- ------- Comprehensive income $(1,887) $ 17,484 $ 22,800 $24,719 ======= ======== ======== =======
11. ACQUISITIONS During the nine months ended September 30, 2001, the Company acquired BTi Employee Screening Services, Inc., a pre-employment background screening organization, ABI Consulting, Inc., a third-party administrator of employee drug testing programs, Insurity Solutions Inc., a provider of Internet-based rating, underwriting and policy-servicing tools, The Bode Technology Group, Inc., a premier provider of DNA identification services, the pre-employment and drug testing businesses of Pinkerton Services Corporation, a unit of Securitas AB of Sweden, Marketing Information and Technology, Inc., a provider of large-scale direct marketing systems for FORTUNE 500 clients and certain assets of National Medical Review Offices, Inc., a large provider of Medical Review Office services. The total purchase price of the acquisitions, which were accounted for using the purchase method, was approximately $156.1 million in cash, with approximately $136.9 million of that amount allocated to goodwill. The Company is currently evaluating the allocation of intangible assets and goodwill in accordance with SFAS No. 142, "Goodwill and Other Intangible Assets" ("SFAS No. 142"), and other exit activities which may result in some reclassifications. As of September 30, 2001, ChoicePoint has accrued approximately $6.3 million for transaction-related costs including lease terminations and personnel-related costs related to these acquisitions. 12. DIVESTITURE In August 2001, the Company sold its laboratory services business to LabOne, Inc. for $49 million and retained certain assets. The results of this business historically have been included in the Insurance Services business segment. Operating segment results have been restated for all periods to reflect the sale of this line of business (see Note 14 to the Consolidated Financial Statements). Operating income for the quarter ended September 30, 2001 includes a $10.8 million loss on the sale. Net income for the quarter ended September 30, 2001 includes a $21.4 million (including tax expense of $10.5 million) after-tax loss on the sale of the laboratory services business. 13. NEW ACCOUNTING PRONOUNCEMENTS In June 2001, the Financial Accounting Standards Board ("FASB") issued SFAS No. 141, "Business Combinations" ("SFAS No. 141") effective July 1, 2001 and SFAS No. 142, effective for the Company on January 1, 2002. SFAS No. 141 prohibits pooling of interests accounting for acquisitions initiated after June 30, 2001. SFAS No. 142 requires companies to cease amortizing goodwill that existed at June 30, 2001 on December 31, 2001. Any goodwill resulting from acquisitions completed after June 30, 2001 will not be amortized. SFAS No. 142 also broadens the criteria for recording intangible assets separate from goodwill and establishes a new method of testing goodwill for impairment on an annual basis or on an interim basis if an event occurs or circumstances change that would reduce the fair value of a reporting unit 10 below its carrying value. The provisions of SFAS No. 142 which apply to goodwill and intangible assets acquired prior to June 30, 2001 will be adopted by ChoicePoint on January 1, 2002. We expect the adoption of these accounting standards will result in certain of our intangibles being subsumed into goodwill and will result in the discontinuation of amortization of these assets and goodwill; however, impairment reviews may result in future periodic write-downs. In August 2001, the FASB issued SFAS No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"). SFAS No. 144 is effective for fiscal years beginning after December 15, 2001, and interim periods within those fiscal years. ChoicePoint will adopt this statement on January 1, 2002. This statement addresses financial accounting and reporting for the impairment or disposal of long-lived assets. It supersedes SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of." We are currently evaluating the impact of SFAS No. 144 on our Consolidated Financial Statements. 14. SEGMENT DISCLOSURES ChoicePoint operates primarily in two reportable segments: Insurance Services ("Insurance") and Business & Government Services ("B&G"). See Note 1 for a description of each segment. Revenues and operating income for the three months and nine months ended September 30, 2001 and 2000 for the two segments, laser technology patents held by the Company ("Royalty") and the divested and discontinued lines were as follows:
Three months ended Three months ended September 30, 2001 September 30, 2000 ------------------------------------------- -------------------------------------------- Operating Operating Income Income before Operating before Operating (In thousands) Acquisition Income Acquisition Income Revenue Amortization (Loss) Revenue Amortization (Loss) --------- ------------ --------- --------- ------------ -------- Insurance $ 76,547 $ 36,011 $ 35,020 $ 64,291 $ 28,620 $ 27,858 B&G 88,959 19,833 15,245 73,285 16,997 13,119 Royalty 1,630 1,011 1,011 1,604 953 953 Divested & Discontinued 5,715 (48) (336) 12,324 2,208 1,776 Corporate and Shared Expenses -- (12,525) (12,525) (11,580) (11,580) Loss on sale of business -- (10,853) (10,853) -- -- -- --------- -------- -------- --------- -------- --------- Total $ 172,851 $ 33,429 $ 27,562 $ 151,504 $ 37,198 $ 32,126 ========= ======== ======== ========= ======== ======== Nine months ended Nine months ended September 30, 2001 September 30, 2000 ------------------------------------------- -------------------------------------------- Operating Operating Income Income before Operating before Operating (In thousands) Acquisition Income Acquisition Income Revenue Amortization (Loss) Revenue Amortization (Loss) --------- ------------ --------- --------- ------------ -------- Insurance $ 222,461 $ 102,101 $ 99,143 $ 187,719 $ 81,000 $ 78,791 B&G 239,984 55,272 42,258 210,452 38,463 27,102 Royalty 5,094 3,253 3,253 4,795 2,855 2,855 Divested & Discontinued 23,799 1,234 84 43,744 9,067 7,565 Corporate and Shared Expenses -- (37,297) (37,297) (31,697) (31,697) Loss on sale of business -- (10,853) (10,853) -- -- -- Merger-related Costs and Unusual Items (Note 2) -- -- (18,009) (18,009) (28,949) (28,949) --------- --------- -------- --------- -------- -------- Total $ 491,338 $ 95,701 $ 78,579 $ 446,710 $ 70,739 $ 55,667 ========= ========= ======== ========= ======== ========
11 Divested and discontinued product lines include the operating results from the laboratory services business sold in August 2001 and certain other product lines which were, as a result of the Merger and integration of the two public records businesses, determined to be duplicative in nature or contrary to ChoicePoint's strategic goals and, hence, discontinued. Corporate and shared expenses represent costs of support functions, research and development initiatives, incentives and profit sharing that benefit both segments. Acquisition amortization includes goodwill and other intangible amortization related to acquisitions. Depreciation and amortization for the three months and nine months ended September 30, 2001 and 2000 were as follows:
Three Months Ended Nine months Ended September 30, September 30, (In thousands) 2001 2000 2001 2000 ------- -------- --------- -------- Insurance $3,402 $ 2,798 $ 9,403 $ 8,278 B&G 10,419 7,479 28,026 23,324 Royalty 425 426 1,275 1,278 Divested & Discontinued 754 1,533 3,078 4,766 Corporate 1,021 716 2,843 2,085 ------- -------- --------- -------- Total $16,021 $12,952 $44,625 $39,731 ======= ======= ======= =======
Substantially all of the Company's operations are located in the United States and no customer represents more than 10% of total operating revenue. 15. SUBSEQUENT EVENTS Subsequent to September 30, 2001, the Company paid down $50 million of its Credit Facility. ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION INTRODUCTION ChoicePoint Inc., a Georgia corporation ("ChoicePoint" or the "Company"), is the leading provider of identification and credential verification services for making smarter decisions. ChoicePoint's businesses are focused on two primary markets - Insurance Services and Business & Government Services. See Note 1 to the Consolidated Financial Statements for a description of each market. On May 16, 2000, ChoicePoint completed a merger (the "Merger") with DBT Online, Inc. ("DBT"). The Merger has been accounted for as a pooling of interests and, accordingly, all prior period consolidated financial statements have been restated to include the combined results of operations, financial position and cash flows of DBT. See Note 2 to the Consolidated Financial Statements for a description of the Merger. On March 7, 2001, ChoicePoint effected a three-for-two stock split in the form of a stock dividend payable to shareholders of record as of February 16, 2001. Unless otherwise stated, share and per share data for all periods presented have been adjusted to reflect the stock split. RESULTS OF OPERATIONS REVENUE The Company's total revenue for the third quarter of 2001 was $172.9 million, an increase of 14% over the third quarter of 2000. For the first nine months of 2001, revenue was $491.3 million, an increase of 10% over the first nine months of 2000. Consolidated internal revenue growth, which excludes the effect of 12 revenue from purchased acquisitions and divestitures, was approximately 6% for the third quarter of 2001 and 8% for the nine months ended September 30, 2001. Our revenue growth was driven primarily from continued strong unit performances in all of the Insurance Services' product lines and the acquisitions in Business & Government Services. SEGMENT REVENUE Insurance Services' major offerings include claims history data, motor vehicle records, credit information and marketing and modeling services to the personal lines property and casualty market; and customized policy rating and issuance software and property inspections and audits to the commercial insurance market. In August 2001, the Company sold its laboratory services business. The results of this business historically have been included in the Insurance Services business segment. Operating segment results have been restated for all periods to reflect the sale of this line of business (see Notes 12 and 14 to the Consolidated Financial Statements). In the third quarter of 2001, Insurance Services revenue was $76.5 million, up 19%, or $12.2 million, from $64.3 million in 2000. For the first nine months of 2001, Insurance Services revenue grew 18%, or $34.8 million, to $222.5 million from $187.7 million in the prior year. This growth was driven by strong unit performance in personal lines products, our field-based commercial property inspection, modeling and marketing, and customized rating and issuance software businesses. During the nine months ended September 30, 2001, the Company acquired Insurity Solutions Inc. and, after September 30, 2000, the Company acquired RRS Police Records Management, Inc. and the assets of VIS'N Service Corporation. Excluding acquisitions and dispositions, internal revenue growth in Insurance Services was 17% from the three months ended September 30, 2000 to the three months ended September 30, 2001. Business & Government Services' major offerings include pre-employment background screenings and drug testing administration services, public record searches, credential verification, due diligence information, uniform commercial code searches and filings, database marketing services and people and shareholder locator information services. Business & Government Services' revenue for the third quarter increased $15.7 million, or 21%, to $89.0 million from $73.3 million in the third quarter of 2000. For the nine months ended September 30, 2001, Business & Government Services' revenue was $240.0 million up 14%, or $29.5 million, from $210.5 million in the prior year. This growth was driven primarily by the integration of recent acquisitions in workplace solutions, offset by slower growth in public records, direct marketing and existing workplace solutions businesses due to economic conditions. During the first nine months of 2001, the Company acquired the pre-employment and drug testing businesses of Pinkerton Services Corporation, a unit of Securitas AB of Sweden, Marketing Information and Technology, Inc., a provider of large-scale direct marketing systems for FORTUNE 500 clients, BTi Employee Screening Services, Inc., ABI Consulting, Inc., The Bode Technology Group, Inc., and certain assets of National Medical Review Offices, Inc., and after September 30, 2000, acquired certain assets of Cat Data Group, LLC and Drug Free Consortium, Inc. Excluding acquisitions, internal revenue growth for Business & Government Services was -a decrease of 4% for the third quarter of 2001 primarily driven by decreases in workplace solutions. Third quarter royalty revenue from laser technology patents held by the Company remained constant at $1.6 million. For the nine months ended September 30, royalty revenue was $5.1 million in 2001 compared with $4.8 million in 2000. The remaining patents underlying this revenue expire between November 2004 and May 2005. Divested and discontinued product lines include the operating results from the laboratory services business sold in August 2001 (see Note 12 to the Consolidated Financial Statements) and certain other product lines 13 which were, as a result of the Merger and integration of the two public records businesses, determined to be duplicative in nature or contrary to ChoicePoint's strategic goals and, hence, discontinued. MERGER-RELATED COSTS AND UNUSUAL ITEMS Merger-related costs and unusual items of $18.0 million in the first quarter of 2001 and $28.9 million in the second quarter of 2000 primarily related to the Merger in May 2000 and related integration of the Company's two public records businesses in connection with this Merger, the plan for which was finalized in the first quarter of 2001. Merger-related costs and unusual items include asset impairments, stay bonuses, severance and termination benefits, and duplicate data and lease exit costs (See Note 2 to the Consolidated Financial Statements). LOSS ON SALE OF BUSINESS In August 2001, the Company sold its laboratory services business to LabOne, Inc. for $49 million and retained certain assets. The results of this business historically have been included in the Insurance Services business segment. Operating segment results have been restated for all periods to reflect the sale of this line of business (see Notes 12 and 14 to the Consolidated Financial Statements). Operating income for the quarter ended September 30, 2001 includes a $10.8 million loss on the sale. Net income for the quarter ended September 30, 2001 includes a $21.4 million (including tax expense of $10.5 million) after-tax loss on the sale of the laboratory services business. OPERATING INCOME The Company's operating income, excluding the loss on sale of business, was $38.4 million or 22.2% as a percent of revenue in the third quarter of 2001, up from $32.1 million or 21.2% as a percent of revenue in the third quarter of the prior year. Including the $10.8 million loss on sale of business in the third quarter of 2001, operating income was $27.6 million or 15.9% of revenue. For the first nine months of 2001, operating income was $78.6 million, up from $55.7 million for the first nine months of 2000. Excluding the loss on sale of business and merger-related costs and unusual items, for the first nine months of 2001 operating income was $107.4 million or 21.9% as a percent of revenue, up from $84.6 million or 18.9% of revenue in the prior year. The improvement in operating margins from 2000 to 2001 was primarily as a result of the revenue growth in Insurance Services discussed above, cost synergies realized in the integration of DBT into the Company's public records business and our continued focus on improving cost efficiencies. Acquisition amortization, which includes goodwill and other intangible amortization related to acquisitions, was $5.9 million in the third quarter of 2001 and $5.1 million for the third quarter of the prior year. For the first nine months of 2001, acquisition amortization was $17.1 million, an increase of $2.0 million over the prior year due to acquisitions in the last quarter of 2000 and the first nine months of 2001. SEGMENT OPERATING INCOME Insurance Services had third quarter 2001 operating income of $35.0 million, resulting in an operating margin of 45.7%, compared with 43.3% in the third quarter of 2000. The margin increase is primarily a result of the revenue growth discussed above and continued focus on improving cost efficiencies. Excluding acquisition amortization, third quarter operating margins were 47.0% in 2001 and 44.5% in 2000. Business & Government Services had third quarter 2001 operating income of $15.2 million, resulting in an operating margin of 17.1% compared with 17.9% in the third quarter of 2000. The slight margin decrease is primarily due to revenue pressures in our workplace solutions business and lower than average margins attributable to recent acquisitions. Excluding acquisition amortization, third quarter operating margins were 22.3% in 2001 and 23.2% in 2000. Corporate and shared expenses represent costs of support functions, research and development initiatives, incentives and profit sharing that benefit both Insurance Services and Business & Government Services. Corporate and shared expenses were $12.5 million for the third quarter of 2001, up from $11.6 million in 2000. For the nine months ended September 30, corporate and shared expenses were $37.3 million in 2001, up from $31.7 million in 2000. The increase in corporate and shared expenses is primarily due to the 14 increase in compensation expense recognized under employee stock plans and incentives and additional resources to support the growth of the Company. INTEREST EXPENSE, NET Interest expense, net was $2.9 million for the third quarter of 2001 consistent with the third quarter of 2000 as higher debt levels due to the acquisitions made in July 2001 were offset by lower interest rates. For the nine months ended September 30, 2001, interest expense, net was $8.0 million, a decrease of $1.1 million from the first nine months of 2000 due to lower average debt levels and interest rates. Interest expense for 2000 is also net of interest income from short-term investments of $419,000 for the third quarter and $882,000 for the first nine months. INCOME TAXES ChoicePoint's overall effective tax rate was 39.7% for the third quarter of 2001, excluding the loss on sale of business, down from 40.0% for the three months ended September 30, 2000. Excluding the loss on sale of business and merger-related costs and unusual items, our effective tax rate for the first nine months of 2001 was 39.7% compared with 40.5% for the first nine months of the prior year. Including the tax expense related to the loss on sale of business and merger-related costs and unusual items, our effective tax rate for the nine months ended September 30, 2001 was 61.5%, up from 47.7% for the same period of 2000. The decrease in effective tax rates excluding loss on sale of business and merger-related costs and unusual items from 2000 to 2001 is primarily due to implementation of state and local tax planning initiatives. FINANCIAL CONDITION AND LIQUIDITY Cash and cash equivalents totaled $60.3 million as of September 30, 2001. Cash provided by operations was $70.4 million for the first nine months of 2001 compared to $48.3 million for the first nine months of 2000. The increase in cash provided by operations was primarily attributable to increased net income excluding the loss on sale of business as compared to September 30, 2000. During the first nine months of 2001, ChoicePoint continued to invest in future growth. Cash used by investing activities was $147.7 million, consisting of $153.0 million for acquisitions, $16.2 million for property and equipment and $27.4 million for other asset additions, primarily software developed for internal use, purchased data files and software, and software developed for external use, offset by $49.0 million of proceeds from the sale of the laboratory services business in August 2001. In the first nine months of 2000, cash used by investing activities was $104.7 million, including $97.3 million for acquisitions, $11.9 million for additions to property and equipment and $13.3 million for additions to other assets, offset by additions to short-term investments of $16.2 million. The Company anticipates full-year capital expenditures of approximately $55 million for 2001, which will be used primarily for the development of a new public records technology platform, system upgrades and other assets, including capitalized software development, purchased data files and software. Cash provided by financing activities of $92.8 million in the first nine months of 2001 consisted of $76.0 million of net proceeds from long-term debt and $20.1 million of proceeds from the exercise of stock options offset by purchases of stock held by our employee benefit trust of $2.0 million. Cash provided by financing activities of $8.5 million in the first nine months of 2000 included $5.4 million of net payments of long-term debt offset by $13.9 million of proceeds from the exercise of stock options. The Company's short-term and long-term liquidity depends primarily upon its level of net income and working capital management (accounts receivable, accounts payable and accrued expenses) and long-term debt. In August 1997, ChoicePoint entered into a $250 million unsecured revolving credit facility (the "Credit Facility") with a group of banks (See Note 7 to the Consolidated Financial Statements) which expires in August 2002. Borrowings under the Credit Facility were $215 million at September 30, 2001 and $139 million at December 31, 2000. In connection with the divestiture discussed in Note 12 to the Consolidated Financial Statements, in August 2001, the Company received $49 million in sales proceeds all of which was used to pay down the Credit Facility in October 2001. ChoicePoint may use additional borrowings under the Credit Facility to finance acquisitions and for general corporate cash requirements. In addition, there was $4.4 million of other long-term debt outstanding at September 30, 2001. ChoicePoint may also utilize lines of credit with two banks for overnight borrowings. As of September 30, 2001, there were no amounts outstanding under a line of credit. 15 In July 2001, the Company and certain of its subsidiaries entered into an agreement (the "Receivables Facility") with a financial institution whereby it may sell on a continuous basis, and without recourse, an undivided interest in all eligible trade accounts receivable subject to limitations. The Company will maintain the balance in the designated pool of accounts receivable sold by selling undivided interests in new receivables as existing receivables are collected. The Receivables Facility permits the advance of up to $100 million on the sale of accounts receivable. There were no borrowings under the Receivables Facility at September 30, 2001. We believe that our existing cash balance, available debt and cash flow from operations will be sufficient to meet our working capital and capital expenditure requirements for the next twelve months. We also anticipate entering into a new credit facility in the first half of 2002. However, any material variance of our operating results from our projections or the investments in or acquisitions of businesses, products or technologies could require us to obtain additional equity or debt financing. Earnings before interest, taxes, depreciation and amortization ("EBITDA"), excluding the loss on sale of business and merger-related costs and unusual items, increased $9.4 million in the third quarter of 2001, or 20.8% from the third quarter of 2000, to $54.4 million. For the first nine months ended September 30, EBITDA increased $18.4 million, or 23.2%, to $97.6 million in 2001. EBITDA margins increased from 29.8% for the third quarter of 2000 to 31.5% for the third quarter of 2001 due to ChoicePoint's strong operating performance. The Company has included EBITDA data (which is not a measure of financial performance under generally accepted accounting principles) because such data is used by certain investors to analyze and compare companies on the basis of operating performance, leverage and liquidity and to determine a company's ability to service debt. EBITDA is not presented as a substitute for income from operations, net income or cash flows from operating activities. Economic Value Added ("EVA") measures the value created in excess of the cost of capital used to run the business. The Company uses EVA as a performance measure to make operational, capital and compensation decisions. Excluding the impact of 2001 acquisitions and dispositions, EVA increased $1.9 million in the third quarter of 2001 and $12.0 million for the nine months ended September 30, 2001 due primarily to strong operating results. EVA for the quarter includes a charge for "pooling goodwill" related to the Merger of approximately $8.1 million. The Company uses cash generated to invest in growing the business and to fund acquisitions and operations. Therefore, no cash dividends have been paid and the Company does not anticipate paying any cash dividends on its common stock in the near future. NEW ACCOUNTING PRONOUNCEMENTS In June 2000, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards ("SFAS") No. 138 that amends the accounting and reporting of derivatives under SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities," ("SFAS No. 133") to exclude, among other things, contracts for normal purchases and sales (See Note 8 to the Consolidated Financial Statements). Effective January 1, 2001, ChoicePoint adopted SFAS No. 133. The adoption of SFAS No. 133 as of January 1, 2001, resulted in a charge to Other Comprehensive Income of $2.8 million, net of taxes. For the three months and nine months ended September 30, 2001, the Company recorded the ineffectiveness related to these cash flow hedges to net interest expense. These amounts were not material. In June 2001, the Financial Accounting Standards Board issued SFAS No. 141, "Business Combinations" effective July 1, 2001 and SFAS No. 142, "Goodwill and Other Intangible Assets" effective for the Company on January 1, 2002. SFAS No. 141 prohibits pooling of interests accounting for acquisitions initiated after June 30, 2001. SFAS No. 142 requires companies to cease amortizing goodwill that existed at June 30, 2001 on December 31, 2001. Any goodwill resulting from acquisitions completed after June 30, 2001 will not be amortized. SFAS No. 142 also broadens the criteria for recording intangible assets separate from goodwill and establishes a new method of testing goodwill for impairment on an annual basis or on an interim basis if an event occurs or circumstances change that would reduce the fair value of a reporting unit below its carrying value. The provisions of SFAS No. 142 which apply to goodwill and intangible assets acquired prior to June 30, 2001 will be adopted by ChoicePoint on January 1, 2002. We 16 expect the adoption of these accounting standards will result in certain of our intangibles being subsumed into goodwill and will result in the discontinuation of amortization of these assets and goodwill; however, impairment reviews may result in future periodic write-downs. In August 2001, the FASB issued SFAS No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"). SFAS No. 144 is effective for fiscal years beginning after December 15, 2001, and interim periods within those fiscal years. ChoicePoint will adopt this statement on January 1, 2002. This statement addresses financial accounting and reporting for the impairment or disposal of long-lived assets. It supersedes SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of." We are currently evaluating the impact of SFAS No. 144 on our Consolidated Financial Statements. FORWARD-LOOKING STATEMENTS Certain written and oral statements made by or on behalf of the Company may constitute "forward-looking statements" as defined under the Private Securities Litigation Reform Act of 1995. Words or phrases such as "should result," "are expected to," "we anticipate," "we estimate," "we project," or similar expressions are intended to identify forward-looking statements. These statements are subject to certain risks and uncertainties that could cause actual results to differ materially from those expressed in any forward-looking statements. These risks and uncertainties include, but are not limited to, the following important factors: demand for the Company's services, product development, maintaining acceptable margins, ability to control costs, the impact of federal, state and local regulatory requirements on the Company's business, specifically the public records market and privacy matters affecting the Company, the impact of competition and the uncertainty of economic conditions in general. Additional information concerning these risks and uncertainties is contained in the Company's filings with the Securities and Exchange Commission, including the Company's Annual Report on Form 10-K for the year ended December 31, 2000. Readers are cautioned not to place undue reliance on forward-looking statements, since the statements speak only as of the date that they are made, and the Company undertakes no obligation to publicly update these statements based on events that may occur after the date of this report. ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The Company is exposed to market risk from changes in interest rates. The information below summarizes the Company's market risk associated with its debt obligations as of September 30, 2001. The information below should be read in conjunction with Note 7 to the Consolidated Financial Statements. As of September 30, 2001, $215 million was outstanding under the Credit Facility. The Company has also entered into an interest rate swap agreement (the "Swap Agreement") to reduce the impact of changes in interest rates on its Credit Facility. The Swap Agreement had a notional amount of $125 million at September 30, 2001 and matures in August 2002. The Swap Agreement involves the exchange of variable rate for fixed rate payments and effectively changes the Company's interest rate exposure to a weighted average fixed rate of approximately 5.4%. Based on the Company's overall interest rate exposure at September 30, 2001, a near-term change in interest rates would not materially affect the consolidated financial position, results of operations or cash flows of the Company. As noted above, as of October 2001, $165 million is outstanding under the Credit Facility, of which $125 million is hedged with interest rate swaps. A one percent change in interest rates would result in a $400,000 change in annual interest expense. 17 PART II. OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS ChoicePoint is involved in litigation from time to time in the ordinary course of its business. The Company does not believe that the outcome of any pending or threatened litigation will have a material adverse effect on the financial position or results of operations of ChoicePoint. However, as is inherent in legal proceedings where issues may be decided by finders of fact, there is a risk that unpredictable decisions adverse to the Company could be reached. ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS Not Applicable. ITEM 3. DEFAULTS UPON SENIOR SECURITIES Not Applicable. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS Not Applicable ITEM 5. OTHER INFORMATION Not Applicable. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits 10.1 Master Agreement, dated as of August 29, 2001, among ChoicePoint Inc., as Guarantor, ChoicePoint Inc. and certain subsidiaries of ChoicePoint Inc. that may hereafter become party hereto, as Lessees, Atlantic Financial Group, LTD., as Lessor, Certain Financial Institutions Parties Hereto, as Lenders and SunTrust Bank, as Agent. 10.2 Master Lease Agreement, dated as of August 29, 2001, between Atlantic Financial Group, LTD, as Lessor, and ChoicePoint Inc. and certain subsidiaries of ChoicePoint Inc., as Lessees. 10.3 Guaranty Agreement from ChoicePoint Inc., dated as of August 29, 2001. 10.4 Construction Agency Agreement, dated as of August 29, 2001, among Atlantic Financial Group, Ltd. and ChoicePoint Inc., as Construction Agent. 10.5 Loan Agreement, dated as of August 29, 2001, among Atlantic Financial Group, Ltd., as Lessor and Borrower, the financial institutions party hereto, as Lenders, and SunTrust Bank, as Agent. 10.6 Stock Purchase Agreement, dated as of August 31, 2001, by and among ChoicePoint Inc., ChoicePoint Services Inc., and LabOne, Inc. (b) Reports on Form 8-K Registrant did not file any reports on Form 8-K during the quarter for which this report was filed. 18 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. CHOICEPOINT INC. (Registrant) November 12, 2001 /s/ Derek V. Smith - ------------------------------ ---------------------------------- Date Derek V. Smith, Chairman and Chief Executive Officer November 12, 2001 /s/ Michael S. Wood - ------------------------------ ------------------------------------------- Date Michael S. Wood, Chief Financial Officer 19 EXHIBIT INDEX
Exhibit Description of Exhibit - ------- ---------------------- 10.1 Master Agreement, dated as of August 29, 2001, among ChoicePoint Inc., as Guarantor, ChoicePoint Inc. and certain subsidiaries of ChoicePoint Inc. that may hereafter become party hereto, as Lessees, Atlantic Financial Group, LTD., as Lessor, Certain Financial Institutions Parties Hereto, as Lenders and SunTrust Bank, as Agent. 10.2 Master Lease Agreement, dated as of August 29, 2001, between Atlantic Financial Group, LTD, as Lessor, and ChoicePoint Inc. and certain subsidiaries of ChoicePoint Inc., as Lessees. 10.3 Guaranty Agreement from ChoicePoint Inc., dated as of August 29, 2001. 10.4 Construction Agency Agreement, dated as of August 29, 2001, among Atlantic Financial Group, Ltd. and ChoicePoint Inc., as Construction Agent. 10.5 Loan Agreement, dated as of August 29, 2001, among Atlantic Financial Group, Ltd., as Lessor and Borrower, the financial institutions party hereto, as Lenders, and SunTrust Bank, as Agent. 10.6 Stock Purchase Agreement, dated as of August 31, 2001, by and among ChoicePoint Inc., ChoicePoint Services Inc., and LabOne, Inc.
20 EX-10.1 3 g72515ex10-1.txt MASTER AGREEMENT DATED AUGUST 29, 2001 EXHIBIT 10.1 ================================================================================ MASTER AGREEMENT Dated as of August 29, 2001 among CHOICEPOINT INC., as Guarantor, CHOICEPOINT INC. AND CERTAIN SUBSIDIARIES OF CHOICEPOINT INC. THAT MAY HEREAFTER BECOME PARTY HERETO, as Lessees, ATLANTIC FINANCIAL GROUP, LTD., as Lessor, CERTAIN FINANCIAL INSTITUTIONS PARTIES HERETO, as Lenders and SUNTRUST BANK, as Agent ================================================================================ TABLE OF CONTENTS
PAGE ---- ARTICLE I. DEFINITIONS; INTERPRETATION.................................................................1 ARTICLE II. ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS; NATURE OF TRANSACTION.......................................................................2 SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.......................2 SECTION 2.2 Fundings of Purchase Price and Construction Costs.....................2 SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Unused Fee............................................................5 SECTION 2.4 Lessee Owner for Tax Purposes.........................................6 ARTICLE III. CONDITIONS PRECEDENT; DOCUMENTS.............................................................7 SECTION 3.1 Conditions to the Obligations of the Funding Parties on each Closing Date..................................................7 SECTION 3.2 Additional Conditions for the Initial Closing Date...................11 SECTION 3.3 Conditions to the Obligations of Lessee..............................12 SECTION 3.4 Conditions to the Obligations of the Funding Parties on each Funding Date.................................................13 SECTION 3.5 Completion Date Conditions...........................................14 SECTION 3.6 Addition of Lessees..................................................15 ARTICLE IV. REPRESENTATIONS............................................................................16 SECTION 4.1 Representations of ChoicePoint and other Lessees.....................16 SECTION 4.2 Survival of Representations and Effect of Fundings...................24 SECTION 4.3 Representations of the Lessor........................................24 SECTION 4.4 Representations of each Lender.......................................26 ARTICLE V. COVENANTS OF CHOICEPOINT AND THE LESSOR....................................................26 SECTION 5.1 Affirmative Covenants................................................26 SECTION 5.2 Negative Covenants...................................................33 SECTION 5.3 Environmental Notices................................................39 SECTION 5.4 Environmental Matters................................................39 SECTION 5.5 Environmental Release................................................39 SECTION 5.6 Further Assurances...................................................39 SECTION 5.7 Additional Required Appraisals.......................................39 SECTION 5.8 Lessor's Covenants...................................................39 ARTICLE VI. TRANSFERS BY LESSOR AND LENDERS; DISTRIBUTION OF PAYMENTS AND PROCEEDS......................................................................41
-i- SECTION 6.1 Lessor Transfers.....................................................41 SECTION 6.2 Lender Transfers.....................................................41 SECTION 6.3 Distribution and Application of Rent Payments........................41 SECTION 6.4 Distribution and Application of Purchase Payment.....................44 SECTION 6.5 Distribution and Application to Funding Party Balances of Lessee Payment of Recourse Deficiency Amount Upon Exercise of Remarketing Option...............................................................44 SECTION 6.6 Distribution and Application to Funding Party Balances of Remarketing Proceeds of Leased Property.............................................................44 SECTION 6.7 Distribution and Application of Payments Received When an Event of Default Exists or Has Ceased to Exist Following Rejection of the Lease...............................45 SECTION 6.8 Distribution of Other Payments.......................................46 SECTION 6.9 Timing of Agent Distributions........................................46 SECTION 6.10 Release of Leased Properties.........................................47 ARTICLE VII. INDEMNIFICATION............................................................................47 SECTION 7.1 General Indemnification..............................................47 SECTION 7.2 Environmental Indemnity..............................................49 SECTION 7.3 Proceedings in Respect of Claims.....................................51 SECTION 7.4 General Tax Indemnity................................................53 SECTION 7.5 Increased Costs, etc.................................................59 SECTION 7.6 End of Term Indemnity................................................63 ARTICLE VIII. MISCELLANEOUS..............................................................................64 SECTION 8.1 Survival of Agreements...............................................64 SECTION 8.2 Documentary Conventions..............................................64 SECTION 8.3 Expenses.............................................................64 SECTION 8.4 Liabilities of the Funding Parties: Sharing of Payments.............................................................64 SECTION 8.5 Liabilities of the Agent.............................................64 SECTION 8.6 Changes in GAAP......................................................64 APPENDIX A Definitions and Interpretation
-ii- SCHEDULES SCHEDULE 2.2 Commitments SCHEDULE 4.1(l) Subsidiaries SCHEDULE 4.1(u) Indebtedness SCHEDULE 4.1(w) Environmental Matters
EXHIBITS EXHIBIT A Form of Funding Request EXHIBIT B Form of Assignment of Lease and Rents EXHIBIT C Form of Security Agreement and Assignment EXHIBIT D-1 Form of Mortgage EXHIBIT D-2 Form of Deed of Trust EXHIBIT E Form of Joinder Agreement EXHIBIT F Form of Assignment and Acceptance Agreement EXHIBIT G Forms of Opinions of Counsel EXHIBIT H Form of Certification of Construction Completion EXHIBIT I Form of Payment Date Notice
-iii- MASTER AGREEMENT THIS MASTER AGREEMENT, dated as of August 29, 2001 (as it may be amended or modified from time to time in accordance with the provisions hereof, this "Master Agreement"), is among CHOICEPOINT INC., a Georgia corporation ("ChoicePoint" or "Guarantor"), ChoicePoint and certain Subsidiaries of ChoicePoint that may hereafter become parties hereto as lessees pursuant to Section 3.6 (individually, together with ChoicePoint in its capacity as a lessee, a "Lessee" and collectively the "Lessees"), as Lessees, ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership (the "Lessor"), certain financial institutions parties hereto as lenders (together with any other financial institution that becomes a party hereto as a lender, collectively referred to as "Lenders" and individually as a "Lender"), and SUNTRUST BANK, a Georgia state banking corporation, as agent for the Lenders (in such capacity, the "Agent"). PRELIMINARY STATEMENT In accordance with the terms and provisions of this Master Agreement, the Lease, the Loan Agreement and the other Operative Documents, (i) the Lessor contemplates acquiring Land and, in certain cases, the Buildings on such Land identified by ChoicePoint from time to time, and leasing such Land and Buildings thereon to a Lessee, (ii) ChoicePoint, as Construction Agent for the Lessor, wishes, in certain instances, to arrange for the construction of Buildings on Land for the Lessor and, when completed, the related Lessee wishes to lease such Buildings from the Lessor as part of the Leased Properties under the Lease, (iii) ChoicePoint, in carrying out its duties as agent, wishes to obtain from Lessor, and the Lessor is willing to provide, funding for the acquisition of the Land and Buildings, or, in certain instances, the construction of Buildings, and (iv) the Lessor wishes to obtain, and Lenders are willing to provide, from time to time, financing of a portion of the funding of the acquisition of the Land and Buildings and, if applicable, the construction of the Buildings. 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: ARTICLE I. 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. ARTICLE II. ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS; NATURE OF TRANSACTION SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease. (a) Land. Subject to the terms and conditions of this Master Agreement, with respect to each parcel of Land identified by ChoicePoint, on the related Closing Date (i) the Lessor agrees to acquire such interest in the related Land, and any Building thereon, from the applicable Seller as is transferred, sold, assigned and conveyed to the Lessor pursuant to the applicable Purchase Agreement or to lease such interest in the related Land, and any Building thereon, from the applicable Ground Lessor as is leased to the Lessor pursuant to the applicable Ground Lease, (ii) the Lessor hereby agrees to lease, or sublease, as the case may be, such Land and any Building thereon to the related Lessee pursuant to the Lease, and (iii) the related Lessee hereby agrees to lease, or sublease, as the case may be, such Land, and any Building thereon, from the Lessor pursuant to the Lease. With respect to each IDB Property, (i) the applicable Authority may acquire such interest in the related Land from the applicable Seller as is transferred, sold, assigned and conveyed to the Authority pursuant to the applicable Purchase Agreement, (ii) the applicable Authority will lease such Land to the Lessor pursuant to the related IDB Lease, and (iii) the related Lessee hereby agrees to sublease such Land from the Lessor pursuant to the Lease (it being understood that any reference in the Operative Documents to the lease by a Lessee of an IDB Property shall be deemed to refer to the sublease thereof pursuant to the Lease, if title to such IDB Property is held by the related Authority). (b) Building. With respect to each parcel of Land on which a Building is to be constructed, subject to the terms and conditions of this Master Agreement, from and after the Closing Date relating to such Land (i) the Construction Agent agrees, pursuant to the terms of the Construction Agency Agreement, to construct and install the Building on such Land for the Lessor prior to the Scheduled Construction Termination Date, (ii) the Lenders and the Lessor agree to fund the Construction Costs with respect to such Building, (iii) the Lessor shall lease, or sublease, as the case may be, such Building as part of such Leased Property to the related Lessee pursuant to the Lease, and (iv) the related Lessee shall lease, or sublease, as the case may be, such Building from the Lessor pursuant to the Lease. SECTION 2.2 Fundings of Purchase Price and Construction Costs. (a) Initial Funding and Payment of Purchase Price for Land and Development Costs on Closing Date. Subject to the terms and conditions of this Master Agreement, on the Closing Date for any Land, and any Building thereon, each Lender shall make available, or arrange to make available, to the Lessor its initial Loan with respect to such Land, and any Building thereon, in an amount equal to the product of such Lender's Commitment Percentage times the purchase price or the ground rent for such Land, and any Building thereon, and the 2 Construction Costs incurred by the Construction Agent, as agent, through such Closing Date, which funds the Lessor shall use, together with the Lessor's own funds in an amount equal to the product of the Lessor's Commitment Percentage times the purchase price or ground rent for the related Land and any Building thereon, and the Construction Costs incurred by the Construction Agent, as agent for the Lessor, through such Closing Date, to purchase such Land, and any Building thereon, from the applicable Seller pursuant to the applicable Purchase Agreement or lease the Land and any Building thereon from the applicable Ground Lessor pursuant to the applicable Ground Lease, as the case may be, and to pay the amount of such Construction Costs, and the Lessor shall lease, or sublease, as the case may be, such Land to the related Lessee pursuant to the Lease. (b) Subsequent Fundings and Payments of Construction Costs during Construction Term. Subject to the terms and conditions of this Master Agreement, if a Building is to be constructed on Land, on each Funding Date following the Closing Date for each such parcel of Land until the related Construction Term Expiration Date, (i) each Lender shall make available, or arrange to make available, to the Lessor a Loan in an amount equal to the product of such Lender's Commitment Percentage times the amount of Funding requested by the Construction Agent for such Funding Date, which funds the Lessor hereby directs each Lender to pay over, or cause to be paid over, to the Agent, for distribution to the Construction Agent, as agent for the Lessor, as set forth in paragraph (d), and (ii) the Lessor shall pay over to the Agent, for distribution to the Construction Agent, as agent for the Lessor, its own funds (which shall constitute a part of, and an increase in, the Lessor's Invested Amount with respect to such Leased Property) in an amount equal to the product of the Lessor's Commitment Percentage times the amount of Funding requested by the Construction Agent for such Funding Date. (c) Aggregate Limits on Funded Amounts. The aggregate amount that the Funding Parties shall be committed to provide, or cause to be provided, as Funded Amounts under this Master Agreement and the Loan Agreement shall not exceed (x) with respect to each Leased Property, the costs of purchase (or ground lease, as the case may be) of such Leased Property and the related Construction Costs, or (y) $52,200,000 in the aggregate for all Leased Properties. The aggregate amount that any Funding Party shall be committed to fund, or cause to be funded, 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. (d) Notice, Time and Place of Fundings. With respect to each Funding, a Lessee or the Construction Agent, as the case may be, shall give the Lessor and the Agent an irrevocable prior telephone (followed within one Business Day with written) or written notice not later than 11:00 a.m., Atlanta, Georgia time, at least three Business Days prior to the proposed Closing Date or other Funding Date, as the case may be, pursuant, in each case, to a Funding Request in the form of Exhibit A (a "Funding Request"), specifying the Closing Date or subsequent Funding Date, as the case may be, the amount of Funding requested, the Leased 3 Property to which such Funding relates, whether such Funding shall be a LIBOR Advance or a Base Rate Advance or a combination thereof 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 60603, or at such other location as may be determined by the Lessor, the Construction Agent and the Agent. Each Funding shall occur on a Business Day and shall be in an amount equal to $250,000 or an integral multiple of $25,000 in excess thereof, with the exception of the final draw, which may be for such lesser amount as may be due and owing to fund the balance of the Construction Costs for the related Leased Property. All remittances made by, or caused to be 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 Construction Agent, with receipt by the Construction Agent not later than 1:00 p.m., Atlanta, Georgia time, on the applicable Funding Date, upon satisfaction or waiver of the conditions precedent to such Funding set forth in Section 3; such funds shall (1) in the case of the initial Funding on a Closing Date, be used to pay the purchase price to the applicable Seller, or ground rent to the applicable Ground Lessor, for the related Land and any Building thereon and pay Construction Costs related to such Land, and (2) in the case of each subsequent Funding be paid to the Construction Agent, as agent for the Lessor, for the payment or reimbursement of Construction Costs incurred through such Funding Date and not previously paid or reimbursed. (e) Lessee's Deemed Representation for Each Funding. Each Funding Request by a Lessee or the Construction Agent shall be deemed a reaffirmation of each Lessee's indemnity obligations in favor of the Indemnitees under the Operative Documents and a representation and warranty to the Lessor, the Agent and the Lenders that on the proposed Closing Date or Funding Date, as the case may be, (i) the amount of Funding requested represents amounts owing in respect of the purchase price or ground rent of the related Land, and any Building thereon, and Construction Costs in respect of the Leased Property (in the case of the initial Funding on a Closing Date) or amounts that are then due to third parties in respect of the Construction, or amounts paid by the Construction Agent, as agent for the Lessor, to third parties which the Construction Agent has not previously been reimbursed by a Funding (in the case of any Funding), (ii) no Event of Default or Potential Event of Default exists, and (iii) the representations and warranties of the Guarantor and each 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. (f) Not Joint Obligations. Notwithstanding anything to the contrary set forth herein or in the other Operative Documents, each Lender's and the Lessor's commitments shall be several, and not joint. In no event shall any Funding Party be obligated to fund, or cause to be funded, an amount in excess of such Funding Party's Commitment Percentage of any Funding, 4 or to fund, or cause to be funded, amounts in the aggregate in excess of such Funding Party's Commitment. (g) Non-Pro Rata Fundings. Notwithstanding anything to the contrary set forth in this Master Agreement, but subject to Section 2.2(f) above, at the Agent's option, Fundings may be made by drawing on the Lessor's Commitment until such Commitment is fully funded before drawing on the Lenders' Commitments. In such event, when the Lessor's Commitment is fully funded, the Lenders will fund, or cause to be funded, on a pro rata basis as among themselves, 100% of the amount of the Fundings thereafter, provided that, in no event will the Lessor's Invested Amount be less than 3.5% of the aggregate Funded Amounts. SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Unused Fee. (a) The Lessor's Invested Amount for any Leased Property outstanding from time to time shall accrue yield ("Yield") at the Lessor Rate, 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 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, from the date of nonpayment until paid in full (both before and after judgment). (b) Each Lender's Funded Amount for any Leased Property outstanding from time to time shall accrue interest as provided in the Loan Agreement. (c) During the Construction Term, in lieu of the payment of accrued interest, on each Payment Date, each Lender's Funded Amount in respect of a Construction Land Interest shall automatically be increased by the amount of interest accrued and unpaid on the related Loans pursuant to the Loan Agreement during the Rent Period ending immediately prior to such Payment Date (except to the extent that at any time such increase would cause such Lender's Funded Amount to exceed such Lender's Commitment, in which event the related Lessee shall pay such excess amount to such Lender in immediately available funds on such Payment Date, unless such amount is an Additional Amount). Similarly, in lieu of the payment of accrued Yield, on each Payment Date, the Lessor's Invested Amount in respect of a Construction Land Interest shall automatically be increased by the amount of Yield accrued on the Lessor's Invested Amount in respect of such Leased Property during the Rent Period ending immediately prior to such Payment Date (except to the extent that at any time such increase would cause the Lessor's Invested Amount to exceed the Lessor's Commitment, in which event the related Lessee shall pay such excess amount to the Lessor in immediately available funds on such Payment Date, unless such amount is an Additional Amount). Such increases in Funded Amounts shall occur without any disbursement of funds by the Funding Parties, and without the need for delivery of a Funding Request. In addition, all Supplemental Rent payable to the Funding Parties with respect to any Construction Land Interest during the Construction Term therefor, other than indemnities 5 payable pursuant to Section 3.3 of the Construction Agency Agreement, shall be capitalized and added to the principal of the related Loans and the related Lessor's Invested Amount (except to the extent that at any time such addition would cause any Funding Party's Funded Amount to exceed its Commitment, in which event the related Lessee shall pay such excess amount to such Funding Party in immediately available funds, unless such amount is an Additional Amount). (d) Three Business Days prior to the last day of each Rent Period, ChoicePoint shall deliver (which delivery may be by facsimile) 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 LIBOR Advances and Base Rate Advances and the Rent Periods therefor, provided that no such allocation to LIBOR Advances shall be in an amount less than $1,000,000. Each such Payment Date Notice shall be irrevocable. If no such notice is given, the Funded Amounts shall be allocated to a LIBOR Advance with a Rent Period of three (3) months. (e) ChoicePoint agrees to pay to the Agent, for the pro rata benefit of the Funding Parties, an unused fee for each day from the date hereof until the Funding Termination Date equal to (i) the Fee Percentage times (ii) the aggregate Commitments, minus the Funded Amounts on such day, times (iii) 1/360. Such fees shall be payable in arrears on each Quarterly Payment Date and, prior to the Funding Termination Date, shall be paid by automatically increasing the Funded Amounts by the amount of such accrued fee. Such increases in the Funded Amounts shall occur without any disbursement of funds by the Funding Parties, and without the need for delivery of a Funding Request. (f) In lieu of the payment of accrued interest and Yield, on each Payment Date, each Funding Party's Funded Amount in respect of any Additional Amounts shall automatically be increased by the amount of interest or Yield accrued and unpaid on such Additional Amounts during the Rent Period ending immediately prior to such Payment Date. Such increases in Funded Amounts shall occur without any disbursement of funds by the Funding Parties, and without the need for delivery of a Funding Request. SECTION 2.4 Lessee Owner for Tax Purposes. With respect to each Leased Property, it is the intent of the Lessees and the Funding Parties that for federal, state and local tax (including sales and use taxes) purposes and commercial and bankruptcy law purposes the Lease shall be treated as the repayment and security provisions of a loan by the Lessor to the Lessees, and that the related Lessee shall be treated as the legal and beneficial owner entitled to any and all benefits of ownership of such Leased Property and all payments of Basic Rent during the Lease Term shall be treated as payments of interest and principal. Nevertheless, each of Guarantor and each Lessee acknowledges and agrees that neither the Agent, nor any Funding Party, nor 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 each of Guarantor and each Lessee has obtained and relied solely upon the advice of its own tax, accounting and legal 6 advisors concerning the Operative Documents and the accounting, tax, financial and legal consequences of the transactions contemplated therein. ARTICLE III. CONDITIONS PRECEDENT; DOCUMENTS SECTION 3.1 Conditions to the Obligations of the Funding Parties on each 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 with respect to any Land and any Building thereon 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 such 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) Deed and Purchase Agreement; Ground Lease. The related original Deed duly executed by the applicable Seller in favor of the Lessor and in recordable form, and copies of the related Purchase Agreement, assigned to the Lessor (unless Lessor is the original party thereto), shall each have been delivered to the Agent by ChoicePoint or the related Lessee, with copies thereof to each other Funding Party or the related Ground Lease, duly assigned to the Lessor (unless Lessor is the original party thereto), shall have been delivered to the Agent, with copies thereof to each other Funding Party, as applicable (it being understood, that each Purchase Agreement and each Ground Lease shall be reasonably satisfactory in form and substance to the Lessor and the Lenders). (ii) Lease Supplement. The original of the related Lease Supplement, duly executed by the related Lessee and the Lessor and in recordable form, shall have been delivered to the Agent by such Lessee. (iii) Mortgage and Assignment of Lease and Rents. Counterparts of the Mortgage (substantially in the form of Exhibit D-1 or D-2, as the case may be, attached hereto), duly executed by the Lessor and in recordable form, shall have been delivered to the Agent; and the Assignment of Lease and Rents (substantially in the form of Exhibit B attached hereto) in recordable form, duly executed by the Lessor, shall have been delivered to the Agent by the Lessor. (iv) Security Agreement and Assignment. If Buildings are to be constructed on the Land, counterparts of the Security Agreement and Assignment 7 (substantially in the form of Exhibit C attached hereto), duly executed by the Construction Agent, with an acknowledgment and consent thereto satisfactory to the Lessor and the Agent duly executed by the related General Contractor and the related Architect or Engineer, as applicable, and complete copies of the related Construction Contract and the related Architect's Agreement or Engineer's Agreement certified by the Construction Agent, shall have been delivered to the Lessor and the Agent (it being understood and agreed that if no related Construction Contract, Architect's Agreement or Engineer's Agreement exists on such Closing Date, such delivery shall not be a condition precedent to the Funding on such Closing Date, and in lieu thereof the Construction Agent shall deliver complete copies of such Security Agreement and Assignment and consents concurrently with the Construction Agent's entering into such contracts). If such Leased Property is a Construction Land Interest, counterparts of the supplement to the Construction Agency Agreement for such Leased Property, duly executed by the Construction Agent and the Lessor, shall have been delivered to the Agent. (v) Survey. The related Lessee shall have delivered, or shall have caused to be delivered, to the Lessor and the Agent, at such Lessee's expense, an accurate survey certified to the Lessor and the Agent in a form reasonably satisfactory to the Lessor and the Agent and prepared within ninety (90) days of such Closing Date (or such other time period agreed to by the Lessor and the Agent) 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 encroachments on such Land by structures owned by others, and no encroachments from any part of such 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. (vi) Title and Title Insurance. On such 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 the projected cost of acquisition and construction of such Leased Property, 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 such Closing Date, and, to the extent permitted under Applicable Law, shall include such affirmative endorsements as the Lessor or the Agent shall reasonably request. 8 (vii) Appraisal. Each Funding Party shall have received a report of the Appraiser (an "Appraisal"), paid for by Guarantor or the related Lessee, which shall meet the requirements of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, shall be satisfactory to such Funding Party and shall state in a manner satisfactory to such Funding Party the estimated "as vacant" value of such Land and existing Buildings or any Building to be constructed thereon. Such Appraisal must show that the "as vacant" value of such Leased Property (if a Building is to be constructed on the Land, determined as if the Building had already been completed in accordance with the related Plans and Specifications and by excluding from such value the amount of assessments on such Leased Property) is at least 45% of the total cost of such Leased Property, including the cost of the trade fixtures, equipment and personal property related to such Leased Property and to be funded by the Funding Parties. (viii) Environmental Audit and related Reliance Letter. The Lessor and the Agent shall have received an Environmental Audit for such Leased Property, which shall be conducted in accordance with ASTM standards and shall not include a recommendation for further investigation and is otherwise satisfactory to the Lessor and the Agent; and the firm that prepared the Environmental Audit for such Leased Property shall have delivered to the Lessor and the Agent a letter 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 Guarantor's or any Lessee's obligations under the Operative Documents with respect to any environmental liabilities relating to such Leased Property. (ix) Evidence of Insurance. The Lessor and the Agent shall have received from the related Lessee certificates of insurance evidencing compliance with the provisions of Article VIII of the Lease (including the naming of the Lessor, the Agent and the Lenders as additional insured or loss payee with respect to such insurance, as their interests may appear), in form and substance reasonably satisfactory to the Lessor and the Agent. (x) 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, if required by applicable law, UCC-2 financing statement to be filed with the Secretary of State of the applicable 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 perfect 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 related Deed, the Lease, the 9 related Lease Supplement, the related Mortgage and the related Assignment of Lease and Rents. (xi) Opinions. An opinion of local counsel for the related Lessee qualified in the jurisdiction in which such Leased Property is located, substantially in the form set forth in Exhibit G attached hereto, 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 Lenders. To the extent reasonably requested by the Agent, opinions supplemental to those delivered under Section 3.2(vi) and reasonably satisfactory to the Agent shall have been delivered and addressed to each of the Lessor, the Agent and the Lenders. (xii) Good Standing Certificates. The Agent shall have received good standing certificates for the Lessor and the related Lessee from the appropriate offices of the state where the related Land is located. (xiii) IDB Property. If such Leased Property is an IDB Property or is otherwise subject to industrial development or revenue bonds, the IDB Documentation shall have been executed by the parties thereto, and shall be in form and substance reasonably acceptable to the Agent, the Lessor and the Lenders. (b) Litigation. No action or proceeding shall have been instituted or, to the knowledge of any Funding Party, 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 any Leased Property or any transaction contemplated by the Operative Documents or which would 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 such Leased Property shall have occurred and be continuing, (ii) no action shall be pending or threatened by a Governmental Authority to initiate a 10 Condemnation or an Event of Taking, and (iii) there shall not have occurred any event that would reasonably be expected to have a Material Adverse Effect since December 31, 2000. (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 such Closing 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. (f) Cutoff Date. No Closing Date shall occur after the Funding Termination Date. (g) Approval. The Agent shall not have rejected such Leased Property for inclusion in the Lease by written notice to ChoicePoint. SECTION 3.2 Additional Conditions for the Initial 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) Loan Agreement; Guaranty Agreement. Counterparts of the Loan Agreement, duly executed by the Lessor, the Agent and each Lender shall have been delivered to each of the Lessor and the Agent. The Note, duly executed by the Lessor, shall have been delivered to the Agent. The Guaranty Agreement, duly executed by the Guarantor, shall have been delivered to the Agent. (ii) Master Agreement. Counterparts of this Master Agreement, duly executed by the parties hereto, shall have been delivered to each of the parties hereto. (iii) Construction Agency Agreement. Counterparts of the Construction Agency Agreement, duly executed by the parties thereto shall have been delivered to each of the parties hereto. (iv) Lease. Counterparts of the Lease, duly executed by the Lessees party to this Master Agreement on the Initial Closing Date, 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. 11 (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 each of Guarantor and each Lessee party hereto on the Initial Closing Date, attaching and certifying as to (i) the Board of Directors' (or appropriate committee's) 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 or certificate 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 or active status certificates for each of Guarantor and each Lessee party hereto on the Initial Closing Date from the appropriate offices of the states of Guarantor's or such Lessee's incorporation and principal place of business. (vi) Opinions of Counsel. The opinions of Jones, Day, Reavis & Pogue and of internal counsel for ChoicePoint, each dated the Initial Closing Date, and containing such 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 Lenders. The opinion of Brown McCarroll, LLP, dated the Initial Closing Date, containing such matters as the parties to whom it is addressed shall reasonably request, shall have been delivered to each of the Agent, the Lenders and ChoicePoint. (vii) Good Standing Certificate. The Agent and ChoicePoint shall have received a good standing certificate for the Lessor and the General Partner from the appropriate office of the State of Texas. (viii) Lessor's Consents and Incumbency Certificate, etc. The Agent and ChoicePoint shall have received a certificate of the Secretary or an Assistant Secretary of the General Partner of the Lessor attaching and certifying as to (i) the consents of the partners of the Lessor 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, and (iii) the Partnership Agreement. SECTION 3.3 Conditions to the Obligations of Lessee. The obligations of any Lessee to lease a Leased Property from the Lessor are subject to the fulfillment on the related Closing Date to the satisfaction of, or waiver by, such 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 Lenders shall have been satisfied. 12 (b) Legality. In the opinion of such 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 illegal for such Lessee to participate in any of the transactions contemplated by the Operative Documents. (c) Purchase Agreement; Ground Lease. The Purchase Agreement and, if applicable, the Ground Lease and all documents to be delivered under the Purchase Agreement or Ground Lease, including title insurance, survey and environmental audit, shall be reasonably satisfactory to such Lessee. SECTION 3.4 Conditions to the Obligations of the Funding Parties on each Funding 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 each Funding 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) on or prior to each such Funding 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 3.4 which are required to be performed by such Funding Party: (a) Funding Request. The Lessor and the Agent shall have received from the Construction Agent or a Lessee the Funding Request therefor pursuant to Section 2.2(d). (b) Condition Fulfilled. As of such Funding Date, the conditions set forth in Sections 3.1(c) and (d) shall have been satisfied. (c) Representations. As of such Funding Date, both before and after giving effect to the Funding requested by the Construction Agent or a Lessee on such date, the representations and warranties that the Construction Agent or such Lessee is deemed to make pursuant to Section 2.2(e) shall be true and correct in all material respects on and as of such Funding Date 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. (d) No Bonded Stop Notice or Filed Mechanics Lien. As of such Funding Date, and as to any Funded Amount requested for any Leased Property on such Funding Date, (i) none of the Lessor, the Agent or any Lender has received (with respect to such Leased Property) a bonded notice to withhold Loan funds that has not been discharged by the related Lessee or the Construction Agent, and (ii) no mechanic's liens or materialman's liens have been filed against such Leased Property that have not been discharged by the related Lessee, bonded over in a manner reasonably satisfactory to the Agent or insured over by the Title Insurance Company. 13 (e) Lease Supplement. If the Funding relates to a Building that will be leased under a Lease Supplement separate from the Lease Supplement for the related Land, the original of such separate Lease Supplement, duly executed by the related Lessee and the Lessor and in recordable form, shall have been delivered to the Agent. SECTION 3.5 Completion Date Conditions. The occurrence of the Completion Date with respect to any Leased Property shall be subject to the fulfillment to the satisfaction of, or waiver by, each party hereto (acting directly or through its counsel) of the following conditions precedent: (a) Certificate of Occupancy. The Construction Agent shall have furnished to the Agent copies of a certificate or certificates of occupancy for such Leased Property or other legally equivalent permission to occupy such Leased Property. (b) Construction Completion. Any related Construction shall have been completed substantially in accordance with the related Plans and Specifications (subject to punch list requirements), the related Deed and all Applicable Laws, and such Leased Property shall be ready for occupancy and operation. All fixtures, equipment and other property contemplated under the Plans and Specifications to be incorporated into or installed in such Leased Property shall have been substantially incorporated or installed, free and clear of all Liens except for Permitted Liens. (c) Construction Agent Certification. The Construction Agent shall have furnished the Lessor, the Agent and each Lender with a certification of the Construction Agent (substantially in the form of Exhibit H) that: (i) all amounts owing to third parties for the related Construction have been paid in full (other than contingent obligations for which the Construction Agent, as agent for the Lessor, has made adequate reserves), and no litigation or proceedings are pending, or to the best of the Construction Agent's knowledge, are threatened, against such Leased Property or the Construction Agent or the related Lessee which could reasonably be expected to have a Material Adverse Effect; (ii) all material consents, licenses and permits and other governmental authorizations or approvals required for such Construction and operation of such Leased Property have been obtained and are in full force and effect; (iii) such Leased Property has available all services of public facilities and other utilities necessary for use and operation of such Leased Property for its intended purposes including, without limitation, adequate water, gas and electrical supply, storm and sanitary sewerage facilities, telephone, other required public utilities 14 and means of access between the related Building and public highways for pedestrians and motor vehicles; (iv) all material agreements, easements and other rights, public or private, which are necessary to permit the lawful use and operation of such Leased Property as the related Lessee intends to use such Leased Property under the Lease and which are necessary to permit the lawful intended use and operation of all then intended utilities, driveways, roads and other means of egress and ingress to and from the same have been obtained and are in full force and effect and neither the Construction Agent nor the related Lessee has any knowledge of any pending modification or cancellation of any of the same; and the use of such Leased Property does not depend on any variance, special exception or other municipal approval, permit or consent that has not been obtained and is in full force and effect for its continuing legal use; (v) all of the requirements and conditions set forth in Section 3.5(b) hereof have been completed and fulfilled with respect to such Leased Property and the related Construction; and (vi) such Leased Property is in compliance in all material respects with all applicable zoning laws and regulations. SECTION 3.6 Addition of Lessees. After the date hereof, additional Subsidiaries of ChoicePoint may become Lessees hereunder and under the other Operative Documents upon satisfaction of the following conditions precedent: (a) such Subsidiary and the Guarantor shall have executed and delivered to the Agent and the Lessor a Joinder Agreement, substantially in the form of Exhibit E; (b) such Subsidiary shall have delivered to each of the Agent and the Lessor (x) a certificate of the Secretary or an Assistant Secretary of such Subsidiary, attaching and certifying as to (i) the Board of Directors' 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 or certificate of incorporation, certified as of a recent date by the Secretary of State of its incorporation and (iv) its by-laws, and (y) good standing or active status certificates from the appropriate offices of the States of such Subsidiary's incorporation and principal place of business; (c) such Subsidiary shall have delivered an opinion of Jones, Day, Reavis & Pogue, or other counsel to such Subsidiary, addressed to each of the Lessor, the Agent and the Lenders, substantially in the form of the opinion delivered by counsel to ChoicePoint on the Initial Closing Date; and 15 (d) the Agent, the Lessor and the Lenders shall have received such other documents, certificates and information as any of them shall have reasonably requested. ARTICLE IV. REPRESENTATIONS SECTION 4.1 Representations of ChoicePoint and other Lessees. Effective as of the date of execution hereof, as of each Closing Date and as of each Funding Date, each of ChoicePoint and each other Lessee represents and warrants to each of the other parties hereto as follows: (a) Corporate Existence; Compliance with Law. It is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. It is (i) has the corporate power and authority and the legal right to own and operate its property and to conduct its business, (ii) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership of property or the conduct of its business requires such qualification, and (iii) is in compliance with all Requirements of Law, except where the failure to duly qualify or to comply with applicable Requirements of Law would not have a Material Adverse Effect. (b) Corporate Power; Authorization. It has the corporate power and authority to make, deliver and perform the Operative Documents to which it is a party and has taken all necessary corporate action to authorize the execution, delivery and performance of such Operative Documents. No consent or authorization of, or filing with, any Person (including, without limitation, any governmental authority), is required in connection with the execution, delivery or performance by it, or the validity or enforceability against it, of the Operative Documents, other than such consents, authorizations or filings which have been made or obtained. (c) Enforceable Obligations. This Master Agreement and each other Operative Document to which it is a party has been duly authorized, executed and delivered by it, and this Master Agreement and each other Operative Document to which it is a party constitute legal, valid and binding obligations enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity. (d) No Contractual or Legal Bar. The execution, delivery and performance by it of the Operative Documents to which it is a party (i) will not contravene any material provision of any Requirement of Law, (ii) will not conflict with or be inconsistent with or result in any breach of, or constitute a default under, any Contractual Obligations of any Consolidated Company that would result in liability to it of $500,000 or more in the aggregate or otherwise result in a Material Adverse Effect, (iii) will not violate any provision of its certificate of 16 incorporation (or equivalent thereof) or bylaws (or equivalent thereof), (iv) will not require the consent, approval or authorization of any governmental or non-governmental authority or Person and (v) will not result in the creation of any Lien upon any of its the assets or properties and its Subsidiaries, other than those Liens permitted under Section 5.2(a). (e) No Material Litigation or Investigations. No litigation, investigations or proceedings of or before any courts, tribunals, arbitrators or governmental authorities are pending or, to knowledge threatened by or against any of the Consolidated Companies, or against any of their respective properties or rights, existing or future (i) with respect to any Operative Document or any of the transactions contemplated hereby or thereby, or (ii) which, if adversely determined, would reasonably be expected to have a Material Adverse Effect. (f) Investment Company Act, Etc. None of the Consolidated Companies is an "investment company" or a company "controlled" by an "investment company" (as each of the quoted terms is defined or used in the Investment Company Act of 1940, as amended). None of the Consolidated Companies is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, or any foreign, federal or local statute or regulation limiting its ability to incur indebtedness for money borrowed, guarantee such indebtedness, or pledge its assets to secure such indebtedness, as contemplated hereby or by any other Operative Document. (g) Margin Regulations. No part of the proceeds of any of the Funded Amounts will be used for any purpose which violates, or which would be inconsistent or not in compliance with, the provisions of the applicable Margin Regulations. (h) Insurance. ChoicePoint currently maintains insurance with respect to its properties and businesses, with financially sound and reputable insurers, having coverages against losses or damages of the kinds customarily insured against by reputable companies in the same or similar businesses, such insurance being the types, and in amounts no less than those amounts which are, customary for such companies under similar circumstances; provided, however, that ChoicePoint may self insure in amounts satisfactory to management, subject to the provisions of Section 5.1(f). The Consolidated Companies have paid all material amounts of insurance premiums now due and owing with respect to such insurance policies and coverages (it being understood that insurance premiums for certain insurance policies and coverages may permit payment on a quarterly basis), and such policies and coverages are in full force and effect. (i) No Default. None of the Consolidated Companies is in default under or with respect to any material Contractual Obligation in any respect. (j) No Burdensome Restrictions. None of the Consolidated Companies is a party to or bound by any Contractual Obligation or Requirement of Law which has had or would reasonably be expected to have a Material Adverse Effect. 17 (k) Taxes. Each of the Consolidated Companies has filed or caused to be filed all declarations, reports and tax returns which are required to have been filed, and has paid all taxes, custom duties, levies, charges and similar contributions ("taxes" in this Section 4.1(k) shown to be due and payable on said returns or on any assessments made against it or its properties, and all other taxes, fees or other charges imposed on it or any of its properties by any governmental authority (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in its books or where the aggregate sum of taxes unpaid is less than $500,000); and no tax liens have been filed and, to its knowledge, no claims are being asserted with respect to any such taxes, fees or other charges. (l) Subsidiaries. Schedule 4.1(l) accurately describes as of the initial Closing Date (1) the complete name of each Subsidiary of ChoicePoint, (2) the jurisdiction of incorporation or organization of each Subsidiary of ChoicePoint, (3) the ownership of all issued and outstanding Capital Stock of each Subsidiary of ChoicePoint and (4) whether such Subsidiary is a Material Subsidiary. Except as disclosed on Schedule 4.1(l), ChoicePoint has no Subsidiaries and neither ChoicePoint nor any Subsidiary is a joint venture partner or general partner in any partnership. Each of the 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 as now conducted in each case where the failure to have the same would have a Material Adverse Effect. (m) Financial Statements. The audited balance sheet of the Consolidated Companies as of December 31, 2000, and the related statements of income and cash flows of the Consolidated Companies, a copy of which has been delivered to the Funding Parties, fairly presents, in conformity with generally accepted accounting principles, the financial position of the Consolidated Companies of such date and time. The Consolidated Companies do not have any material contingent obligations, contingent liabilities or other obligations which are not reflected in the balance sheet referenced above. Since [December 31, 2000], there have been no changes with respect to the Consolidated Companies which has had or would reasonably be expected to have a Material Adverse Effect. (n) ERISA. (i)(1) Identification of Plans. (A) None of the Consolidated Companies nor any of their respective ERISA Affiliates maintains or contributes to, or has during the past two years maintained or contributed to, any Plan that is subject to Title IV of ERISA, and (B) none of the Consolidated Companies maintains or contributes to any Foreign Plan; 18 (2) Compliance. Each Plan and each Foreign Plan maintained by the Consolidated Companies have at all times been maintained, by their terms and in operation, in compliance with all applicable laws, and the Consolidated Companies are subject to no tax or penalty with respect to any Plan maintained or contributed to by such Consolidated Company or any ERISA Affiliate thereof, including without limitation, any tax or penalty under Title I or Title IV of ERISA or under Chapter 43 of the Tax Code, or any tax or penalty resulting from a loss of deduction under Sections 404, or 419 of the Tax Code, where the failure to comply with such laws, and such taxes and penalties, together with all other liabilities referred to in this Section 4.1(n) (taken as a whole), would in the aggregate have a Material Adverse Effect; (3) Liabilities. The Consolidated Companies are subject to no liabilities (including withdrawal liabilities) with respect to any Plans or Foreign Plans maintained or contributed to by such Consolidated Companies or any of their ERISA Affiliates, including without limitation, any liabilities arising from Titles I or IV of ERISA, other than obligations to fund benefits under an ongoing such Plan and to pay current contributions, expenses and premiums with respect to such Plans or Foreign Plans, where such liabilities, together with all other liabilities referred to in this Section 4.1(n) (taken as a whole), would in the aggregate have a Material Adverse Effect; (4) Funding. The Consolidated Companies and, with respect to any Plan which is subject to Title IV of ERISA, each of their respective ERISA Affiliates, have made full and timely payment of all amounts (A) required to be contributed by any of them under the terms of each Plan and applicable law, and (B) required to be paid as expenses by any of them (including PBGC or other premiums) of each Plan, where the failure to pay such amounts (when taken as a whole, including any penalties attributable to such amounts) would have a Material Adverse Effect. No Plan maintained by a Consolidated Company subject to Title IV of ERISA has an "amount of unfunded benefit liabilities" (as defined in Section 4001(a)(18) of ERISA, determined as if such Plan terminated on any date on which this representation and warranty is deemed made, in any amount which, together with all other liabilities referred to in this Section 4.1(n) (taken as a whole), would have a Material Adverse Effect if such amount were then due and payable. The Consolidated Companies are subject to no liabilities with respect to post-retirement medical benefits other than those accrued on ChoicePoint's financial statements. (ii) With respect to any Foreign Plan, reasonable reserves have been established in accordance with prudent business practice or where required by ordinary accounting practices in the jurisdiction where the Foreign Subsidiary maintains its principal place of business or in which the Foreign Plan is maintained. The aggregate unfunded liabilities, after giving effect to any reserves for such liabilities, with respect to such Foreign Plans, together with all other liabilities referred to in this Section 4.1(n) (taken as a whole), would not have a Material Adverse Effect. 19 (o) Possession of Franchises, Licenses, Etc. Each of the Consolidated Companies possesses all franchises, certificates, licenses, permits and other authorizations from governmental political subdivisions or regulatory authorities, that are necessary in any material respect for the ownership, maintenance and operation of its properties and assets, and none of the Consolidated Companies is in violation of any thereof in any material respect. (p) Patents, Trademarks, Licenses, Etc. (i) The Consolidated Companies have obtained and hold in full force and effect all patents, trademarks, service marks, trade names, copyrights, licenses and other such rights, free from burdensome restrictions, which are necessary for the operation of their respective businesses as presently conducted and where the result of a failure to obtain and hold such patents, trademarks, service marks, trade names, copyrights, licenses and other such rights would have a Material Adverse Effect, and (ii) to the best of its knowledge, no product, process, method, service or other item presently sold by or employed by any Consolidated Company in connection with such business infringes any patents, trademark, service mark, trade name, copyright, license or other right owned by any other person and there is not presently pending, or to its knowledge, threatened, any claim or litigation against or affecting any Consolidated Company contesting such Person's right to sell or use any such product, process, method, substance or other item where the result of such failure to obtain and hold such benefits or such infringement would have a Material Adverse Effect. (q) Ownership of Property. Each Consolidated Company has good and marketable fee simple title to or a valid leasehold interest in all of its real property and good title to, or a valid leasehold interest in, all of its other material assets, as such properties are reflected in the most recent financial statements delivered by ChoicePoint to the Agent, other than properties disposed of in the ordinary course of business since such date or as otherwise permitted by the terms of this Master Agreement, subject to no Lien or title defect of any kind, except Liens permitted under Section 5.2(a). The Consolidated Companies enjoy peaceful and undisturbed possession under all of their respective leases. (r) Financial Condition. On each Closing Date and after giving effect to the transactions contemplated by this Master Agreement and the other Operative Documents, including without limitation, the use of the proceeds of the Funded Amounts as provided in Section 2.2, the Guarantor and each Lessee is Solvent. (s) Labor Matters. The Consolidated Companies have experienced no strikes, labor disputes, slow downs or work stoppages due to labor disagreements which have had, or would reasonably be expected to have, a Material Adverse Effect, and, to the best of its knowledge, there are no such strikes, disputes, slow downs or work stoppages threatened against any Consolidated Company which if they occurred, would reasonably be expected to have a Material Adverse Effect. The hours worked and payment made to employees of the Consolidated Companies have not been in violation in any material respect of the Fair Labor Standards Act (in the case of Consolidated Companies that are not Foreign Subsidiaries) or any 20 other applicable law dealing with such matters. All payments due from the Consolidated Companies, or for which any claim may be made against the Consolidated Companies, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as liabilities on the books of the Consolidated Companies in all jurisdictions where the failure to pay or accrue such liabilities would reasonably be expected to have a Material Adverse Effect. (t) Payment or Dividend Restrictions. None of the Consolidated Companies is party to or subject to any agreement or understanding restricting or limiting the payment of any dividends or other distributions by any such Consolidated Company, other than CDB/Infotek. (u) Outstanding Indebtedness. Schedule 4.1(u) lists all outstanding Indebtedness of the Consolidated Companies as of June 30, 2001, and since June 30, 2001, no additional material indebtedness has been incurred by the Consolidated Companies. There exists no default under the provisions of any instrument evidencing or securing Indebtedness of ChoicePoint or any of its Subsidiaries or of any agreement otherwise relating thereto which has had or would reasonably be expected to have a Material Adverse Effect. (v) Disclosure. No representation or warranty contained in this Master Agreement (including the Schedules attached hereto) or in any other document furnished from time to time pursuant to the terms of this Master Agreement, contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary to make the statements herein or therein not misleading in any material respect as of the date made or deemed to be made. There is no fact known to it which is having, or is reasonably expected to have, a Material Adverse Effect. (w) Environmental Matters. (i) Neither ChoicePoint nor any Consolidated Subsidiary is subject to any Environmental Liability which could have or cause a 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(w), as revised from time to time, to its knowledge, none of the Properties has been identified on any current or proposed (1) National Priorities List under 40 C.F.R. ss. 300, (2) CERCLIS list or (3) any list arising from a state statute similar to CERCLA. (ii) Except as disclosed on Schedule 4.1(w), as revised from time to time, to its knowledge, 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 used, produced manufactured, processed, treated, recycled, generated, stored, disposed of, managed, or otherwise handled in minimal amounts in 21 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(w), as revised from time to time, ChoicePoint and each of the Subsidiaries has procured all Environmental Authorizations necessary for the conduct of its business, and is in compliance with all Environmental Laws in connection with the operation of the Properties and ChoicePoint's and each Consolidated Subsidiary's respective businesses, except in such instances where such failure of compliance would not have a Material Adverse Effect. (x) Hazardous Materials - Leased Properties. (i) Except as described in the related Environmental Audit, on the Closing Date for each Leased Property, there are no Hazardous Materials present at, upon, under or within such Leased Property or released or transported to or from such Leased Property (except in compliance in all material respects with all Applicable Law). (ii) On the related Closing Date, no Governmental Actions have been taken or are in process or have been threatened, which could reasonably be expected to subject such Leased Property, any Lender or the Lessor to any material Claims or Liens with respect to such Leased Property under any Environmental Law or would otherwise have a Material Adverse Effect. (iii) The related Lessee has, or will obtain on or before the date required by Applicable Law, all Environmental Permits necessary to operate each Leased Property, if any, in accordance with 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) Except as set forth in the related Environmental Audit or in any notice subsequently furnished by the related Lessee to the Agent and approved by the Agent in writing prior to the respective times that the representations and warranties contained herein are made or deemed made hereunder, no notice, notification, demand, request for information, citations, summons, complaint or order has been issued or filed to or with respect to the related Lessee, no penalty has been assessed on the related Lessee and no investigation or review is pending or, to its best knowledge, threatened by any Governmental Authority or other Person in each case relating to any Leased Property with respect to any alleged material violation or liability of the related Lessee under any Environmental Law. 22 To the best knowledge of the related Lessee, 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 threatened by any Governmental Authority or other Person relating to any Leased Property with respect to any alleged material violation or liability under any Environmental Law by any other Person. (v) Each Leased Property and each portion thereof are presently in compliance in all material respects with all Environmental Laws, and, to the best knowledge of the related Lessee, there are no present or past facts, circumstances, activities, events, conditions or occurrences regarding such Leased Property (including without limitation the release or presence of Hazardous Materials) that would reasonably be anticipated to (A) form the basis of a material Claim against such Leased Property, any Funding Party or the related Lessee, (B) cause such Leased Property to be subject to any material restrictions on ownership, occupancy, use or transferability under any 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 such Leased Property is located, other than notices filed in the ordinary cause of business, or (D) prevent or materially interfere with the continued operation and maintenance of such Leased Property as contemplated by the Operative Documents. (y) Leased Property. The present condition of each Leased Property conforms in all material respects with all conditions or requirements of all existing permits and approvals issued with respect to such Leased Property, and the related Lessee's future intended use of such Leased Property under the Lease does not violate any Applicable Law. To the best knowledge of the related Lessee, no material notices, complaints or orders of violation or non- compliance have been issued or threatened or contemplated by any Governmental Authority with respect to any Leased Property or any present or intended future use thereof. All material agreements, easements and other rights, public or private, which are necessary to permit the lawful use and operation of each Leased Property as the related Lessee intends to use such 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 related Lessee's best knowledge will be, obtained and are or will be in full force and effect, and the related Lessee has no knowledge of any pending material modification or cancellation of any of the same. 23 SECTION 4.2 Survival of Representations and Effect of Fundings. (a) Survival of Representations and Warranties. All representations and warranties made in Section 4.1 shall survive delivery of the Operative Documents and every Funding, and shall remain in effect until all of the Obligations are fully and irrevocably paid. (b) Each Funding a Representation. Each Funding accepted by a Lessee or the Construction Agent shall be deemed to constitute a representation and warranty by ChoicePoint and each other Lessee to the effect of Section 4.1. SECTION 4.3 Representations of the Lessor. Effective as of the date of execution hereof, as of each Closing Date and as of each Funding Date, in each case, with respect to each of the Leased Properties, the Lessor represents and warrants to the Agent, the Lenders and the Lessees as follows: (a) Securities Act. The interest being acquired or to be acquired by the Lessor in such 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) Due Organization, etc. The Lessor is a limited partnership duly organized and validly existing in good standing under the laws of Texas and each state in which a Leased Property is located 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. (c) 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. (d) 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 applicable generally to parties providing financing and do not and will not contravene any provision of, or constitute a default under, any Contractual Obligation of Lessor, do not and will not require the consent or approval of, the giving of notice to, the registration with or taking of any action in respect of or by, any Governmental Authority applicable generally to parties 24 providing financing, except such as have been obtained, given or accomplished, and the Lessor possesses all requisite regulatory authority to undertake and perform its obligations under the Operative Documents. (e) 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 with respect to any Operative Document or 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. (f) Lessor Liens. No Lessor Liens (other than those expressly created by the Operative Documents) exist on any 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 any Leased Property, or any portion thereof, to any Lessor Liens (other than those expressly created by the Operative Documents). (g) 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 Code. (h) General Partner. The sole general partner of the Lessor is Atlantic Financial Managers, Inc., and the General Partner is duly organized and validly existing in good standing under the laws of Texas and each state in which a Leased Property is located. (i) Financial Information. (A) The unaudited balance sheet of the Lessor as of December 31, 2000 and the related statements of income, partners' capital and cash flows for the year then ended, copies of which have been delivered to the Agent, fairly present, in conformity with sound accounting principles, the financial condition of the Lessor as of such date and the results of operations and cash flows for such period. (B) Since December 31, 2000, there has been no event, act, condition or occurrence having a material adverse effect upon the financial condition, operations, performance or properties of the Lessor, or the ability of the Lessor to perform in any material respect its obligations under the Operative Documents. (j) No Offering. The Lessor has not offered the Note to any Person in any manner that would subject the issuance thereof to registration under the Securities Act or any applicable state securities laws. 25 (k) Investment Company. The Lessor is not an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. SECTION 4.4 Representations of each Lender. Effective as of the date of execution hereof, as of each Closing Date and as of each Funding Date, each Lender represents and warrants to the Lessor and to the Lessees as follows: (a) Securities Act. The interest being acquired or to be acquired by such 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 such Lender shall be entitled to assign, convey or transfer its interest in accordance with Section 6.2. (b) Employee Benefit Plans. Such 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 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 Code. ARTICLE V. COVENANTS OF CHOICEPOINT AND THE LESSOR SECTION 5.1 Affirmative Covenants. So long as any Commitment remains in effect hereunder or any Funded Amount shall remain outstanding, ChoicePoint will (unless waived in writing by the Required Funding Parties): (a) Corporate Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries to preserve and maintain, its corporate existence (except for mergers, divestitures and consolidations permitted pursuant to Section 5.2(c), and except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect), its qualification to do business as a foreign corporation in all jurisdictions where it conducts business or other activities making such qualification necessary. (b) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply with, all Requirements of Law (including, without limitation, the Environmental Laws, ERISA and employee benefit laws) and Contractual Obligations applicable to or binding on any of them where the failure to comply with such Requirements of Law and Contractual Obligations would reasonably be expected to have a Material Adverse Effect. (c) Payment of Taxes and Claims, Etc. Pay, and cause each of its Subsidiaries to pay, (i) all taxes, assessments and governmental charges imposed upon it or upon its property, 26 and (ii) all claims (including, without limitation, claims for labor, materials, supplies or services) which might, if unpaid, become a Lien upon its property, unless, in each case, the validity or amount thereof is being contested in good faith by appropriate proceedings and adequate reserves are maintained with respect thereto or the aggregate sum of taxes unpaid is less than $500,000. (d) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, containing complete and accurate entries of all their respective financial and business transactions. (e) Visitation, Inspection, Etc. (i) Prior to the occurrence of a Default, permit, and cause each of its Subsidiaries to permit, any representative of any Funding Party at such Funding Party's expense after reasonable notice during regular business hours (which date of visit shall be mutually agreed upon but shall not be later than 2 weeks after the date requested by such Funding Party) to visit and inspect, in the company of any of the Executive Officers or their designees and their independent public accountants, any of their respective properties, and to examine and make abstracts from any of their respective books and records and to discuss with any of the Executive Officers the respective affairs, finances and accounts of the Lessee and its Subsidiaries. Prior to the occurrence of a Potential Event of Default or an Event of Default, each Lender shall be entitled to no more than two (2) such visits and inspections per year. (ii) After the occurrence of a Default, permit, and cause each of its Subsidiaries to permit, any representative of any Funding Party at the Lessees' expense to visit and inspect, in the company of any of the Executive Officers or their designees and their independent public accountants, any of their respective properties, and to examine and make abstracts from any of their respective books and records and to discuss with any of the Executive Officers the respective affairs, finances and accounts of ChoicePoint and its Subsidiaries. (iii) To cooperate and assist, and to cause each of its Subsidiaries to cooperate and assist, in such visits and inspections set forth in paragraphs (i) and (ii) above in this Section 5.1(e), in each case at such reasonable times and as often as may reasonably be desired; provided, however, that (i) in no event shall any Funding Party have access to information prohibited by law, and (ii) in the event any Funding Party desires to inspect confidential matters (which matters shall in no event include financial information and data of ChoicePoint or its Subsidiaries or other information the Funding Parties may require in order to determine compliance this Master Agreement) under this Section, such Funding Party shall executed a confidentiality agreement relating to such matters, which agreement shall contain reasonable terms acceptable to such Funding Party and its counsel. (f) Insurance; Maintenance of Properties. (i) Maintain or cause to be maintained with financially sound and reputable insurers, insurance with respect to its properties and business, and the properties and 27 business of its Subsidiaries, against loss or damage of the kinds customarily insured against by reputable companies in the same or similar businesses, such insurance to be of such types and in such amounts as are customary for such companies under similar circumstances; provided, however, that ChoicePoint may self-insure in amounts satisfactory to management. Upon the request of the Agent, ChoicePoint shall file with the Agent a detailed Acord certificate of insurance stating the names of the insurance companies, the limits of liability of insurance, the date of expiration thereof, the Property and risks covered thereby and the insured with respect thereto, and, within 60 days after notice in writing from the Agent, obtain such additional insurance as the Required Funding Parties may reasonably request as a result of a material change in the circumstances or conditions affecting ChoicePoint's business specifically or its type of business generally, provided that such additional insurance is available at a commercially reasonable cost. (ii) Cause, and cause each of the Consolidated Companies to cause, all properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, settlements and improvements thereof, all as in the judgment of ChoicePoint may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 5.1(f) shall prevent ChoicePoint from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the judgment of ChoicePoint, desirable in the conduct of its business or the business of any Consolidated Company. (iii) Maintain in full force and effect all material patents, trademarks, service marks, trade names, copyrights, licenses and other such rights, free from burdensome restrictions, which are necessary for the operation of the businesses of the Consolidated Companies as presently conducted, where the result of failure to obtain and hold such benefits would have a Material Adverse Effect. (g) Reporting Covenants. Furnish to the Agent and each Funding Party: (i) Annual Financial Statements. As soon as available and in any event within 105 days after the end of each fiscal year of ChoicePoint, balance sheets of the Consolidated Companies as at the end of such year, presented on a consolidated basis, and the related statements of income, and cash flows of the Consolidated Companies for such fiscal year, presented on a consolidated basis, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of the independent public accountants of comparable recognized national standing, which such report shall be unqualified as to going concern and scope of audit and shall state that such financial statements present fairly in all 28 material respects the financial condition as at the end of such fiscal year on a consolidated basis, and the results of operations and statements of cash flows of the Consolidated Companies for such fiscal year in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; (ii) Quarterly Financial Statements. As soon as available and in any event within 60 days after the end of each fiscal quarter of ChoicePoint (other than the fourth fiscal quarter), balance sheets of the Consolidated Companies as at the end of such quarter presented on a consolidated basis and the related statements of income, shareholders' equity, and cash flows of the Consolidated Companies for such fiscal quarter and for the portion of the ChoicePoint's fiscal year ended at the end of such quarter, presented on a consolidated basis setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of ChoicePoint's previous fiscal year, all in reasonable detail and accompanied by a certification by the chief financial officer of ChoicePoint that such financial statements fairly present in all material respects the financial condition of the Consolidated Companies as at the end of such fiscal quarter on a consolidated basis, and the results of operations and statements of cash flows of the Consolidated Companies for such fiscal quarter and such portion of ChoicePoint's fiscal year, in accordance with GAAP consistently applied (subject to normal year-end audit adjustments and the absence of certain footnotes); (iii) No Default/Compliance Certificate. Together with the financial statements required pursuant to subsections (i) and (ii) above, a certificate (with supporting details) of the chief financial officer of ChoicePoint substantially in the form of Exhibit E attached hereto (the "Compliance Certificate") (i) to the effect that, based upon a review of the activities of the Consolidated Companies and such financial statements during the period covered thereby, there exists no Event of Default and no Potential Event of Default, or if there exists an Event of Default or a Potential Event of Default, specifying the nature thereof and the proposed response thereto, and (ii) demonstrating in reasonable detail compliance as at the end of such fiscal year or such fiscal quarter with Section 5.1(h) and Sections 5.2(a), (d) and (e); (iv) Auditor's Statement. Together with the financial statements required pursuant to subsection (i) above, a statement of the accountants who prepared the report referred to therein, to the effect that, nothing has come to their attention which would cause them to believe that a Default or Event of Default existed as of the date of such financial statements, or if there existed a Default or Event of Default, specifying the nature thereof; (v) Notice of Default. Promptly, and no later than five (5) Business Days after any Executive Officer of ChoicePoint has notice or knowledge of the occurrence of 29 an Event of Default or a Default, a certificate of the chief financial officer of ChoicePoint specifying the nature thereof and the proposed response thereto; (vi) Litigation and Investigations. Promptly, and no later than ten (10) Business Days after any Executive Officer of ChoicePoint has notice or knowledge thereof, notice of the institution of or any material adverse development in any material action, suit or proceeding or any governmental investigation or any arbitration, before any court or arbitrator or any governmental or administrative body, agency or official, against any Consolidated Company, or any material property of any thereof, or the threat of any such action, suit, proceeding, investigation or arbitration; (vii) Environmental Notices. Promptly, and no later than ten (10) Business Days after any Executive Officer of ChoicePoint has notice or knowledge thereof, notice of any actual or alleged violation, or notice of any action, claim or request for information, either judicial or administrative, from any governmental authority relating to any actual or alleged claim, notice of potential responsibility under or violation of any Environmental Law, or any actual or alleged spill, leak, disposal or other release of any waste, petroleum product, or hazardous waste or Hazardous Substance by any Consolidated Company which could result in a Material Adverse Effect; (viii) ERISA. (1) Promptly, and no later than ten (10) Business Days after any Executive Officer of ChoicePoint has notice or knowledge thereof, (A) with respect to any Plan maintained by any Consolidated Company or any ERISA Affiliate thereof, or any trust established thereunder, notice of a "reportable event" described in Section 4043 of ERISA and the regulations issued from time to time thereunder (other than a "reportable event" not subject to the provisions for 30-day notice to the PBGC under such regulations); or (B) any other event which could subject any Consolidated Company to any tax, penalty or liability under Title I or Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty resulting from a loss of deduction under Sections 404 or 419 of the Tax Code, or any tax, penalty or liability under any Requirement of Law applicable to any Foreign Plan, where any such taxes, penalties or liabilities could result in a Material Adverse Effect; (2) Promptly after such notice must be provided to the PBGC, or to a Plan participant, beneficiary or alternative payee, any notice required under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or 412 of the Tax Code with respect to any Plan maintained by any Consolidated Company or any ERISA Affiliate thereof; (3) Promptly after receipt, any notice received by any Consolidated Company or any ERISA Affiliate thereof concerning the intent of the PBGC or any other governmental authority to terminate a Plan maintained or contributed to by such 30 Consolidated Company or ERISA Affiliate thereof which is subject to Title IV of ERISA, to impose any liability on such Consolidated Company or ERISA Affiliate under Title IV of ERISA or Chapter 43 of the Tax Code; (4) Upon the request of the Agent, promptly upon the filing thereof with the Internal Revenue Service ("IRS") or the Department of Labor ("DOL"), a copy of IRS Form 5500 or annual report for each Plan maintained by any Consolidated Company or ERISA Affiliate thereof which is subject to Title IV of ERISA; (5) Upon request of the Agent, but no more frequently than twice each calendar year, (A) true and complete copies of any and all documents, government re ports and IRS determination or opinion letters or rulings for any Plan maintained or contributed to by any Consolidated Company from the IRS, PBGC or DOL, received within the preceding 12 months (B) any reports filed with the IRS, PBGC or DOL with respect to a Plan maintained or contributed to by the Consolidated Companies or any ERISA Affiliate thereof filed within the preceding 12 months, or (C) a current statement of withdrawal liability for each Multiemployer Plan maintained or contributed to by any Consolidated Company or any ERISA Affiliate thereof; (6) Promptly, and no later than (5) Business Days after any Executive Officer has notice or knowledge thereof, notice that (i) any material contributions to any Foreign Plan have not been made by the required due date for such contribution and such default cannot immediately be remedied, (ii) any Foreign Plan is not funded to the extent required by the law of the jurisdiction whose law governs such Foreign Plan based on the actuarial assumptions reasonably used at any time, or (iii) a material change is anticipated to any Foreign Plan that may have a Material Adverse Effect. (ix) Liens. Promptly, and no later than five (5) Business Days after any Executive Officer of ChoicePoint has notice or knowledge thereof, notice of the filing of any federal statutory Lien, tax or other state or local government Lien or any other Lien affecting their respective properties, other than those Liens expressly permitted by Section 5.2(a); (x) Public Filings, Etc. Promptly upon the filing thereof or otherwise becoming available, copies of all financial statements, annual, quarterly and special reports, proxy statements and notices sent or made available generally by ChoicePoint to its public security holders, of all regular and periodic reports and all registration statements and prospectuses, if any, filed by any of them with any securities exchange, and of all press releases and other statements made available generally to the public containing material developments in the business or financial condition of ChoicePoint and the other Consolidated Companies; 31 (xi) New Material Subsidiaries. Within 30 days after the formation, acquisition or existence of any new Material Subsidiary, or any other event resulting in the creation of a new Material Subsidiary, or the domestication of any Foreign Subsidiary, notice of the formation or acquisition of such Subsidiary or such occurrence, including a description of the assets of such entity, the activities in which it will be engaged, and such other information as the Agent may request; (xii) Default under Other Debt. Immediately upon its receipt thereof, copies of any notice received by ChoicePoint or any other Consolidated Company from the holder(s) of Indebtedness of the Consolidated Companies (or from any trustee, agent, attorney, or other party acting on behalf of such holder(s)) in an amount which, in the aggregate, exceeds $5,000,000, where such notice states or claims the existence or occurrence of any default or event of default with respect to such Indebtedness under the terms of any indenture, loan or credit agreement, debenture, note, or other document evidencing or governing such Indebtedness; (xiii) Complete Lien Search Results. As soon as available and in any event within 30 days after the initial Closing Date, copies of all UCC, judgment and tax lien search results for all ChoicePoint's locations in the United States other than field offices at which is located tangible personal property (having an aggregate value not in excess of $6,000,000); and (xiv) Other Information. With reasonable promptness, any other information as the Agent on behalf of any Funding Party may reasonably request from time to time. (h) Financial Covenants. (i) Fixed Charge Coverage Ratio. Maintain as of the last day of each fiscal quarter, a Fixed Charge Coverage Ratio, calculated for the fiscal quarter then ended and the immediately preceding three fiscal quarters, equal to or greater than 2.5:1.0. (ii) Funded Debt to Consolidated EBITDA. Maintain as of the last day of each fiscal quarter, a maximum ratio of Funded Debt to Consolidated EBITDA, calculated for the fiscal quarter then ended and the immediately preceding three fiscal quarters, of less than or equal to (A) 3.5:1.0 for all fiscal quarters ending on or prior to the earlier of (1) the effective date of any revolving credit agreement entered into in replacement of the Credit Agreement and (2) September 30, 2002 and (B) 3.0:1.0 for all periods thereafter. (i) Intellectual Property. Preserve and maintain, and cause each of its Subsidiaries to preserve and maintain, its rights, franchises, and licenses, and its patents and copyrights (for the scheduled duration thereof), trademarks, trade names, and service marks, 32 necessary or desirable in the normal conduct of its business, except where the failure to maintain such rights, franchises, and licenses, patents, copyrights trademarks, trade names, and service marks would reasonably be expected to have a Material Adverse Effect. (j) Amendments to Credit Agreement. Provide the Agent with copies of any and all amendments to, and replacements of, the Credit Agreement, and copies of any other revolving credit facility entered into by ChoicePoint. ChoicePoint agrees to enter into amendments to this Master Agreement and the other Operative Documents to make the covenants, representations and Events of Default set forth herein and therein substantially the same as those covenants, representations and/or events of default set forth in such amendment, replacement or other credit facility, if any, that are identified by the Agent in a request by the Agent to ChoicePoint. SECTION 5.2 Negative Covenants. So long as any Commitment remains in effect hereunder or any Funded Amount shall remain unpaid shall remain outstanding, ChoicePoint will not and will not permit any Subsidiary to (unless waived in writing by the Required Funding Parties): (a) Liens. Create, incur, assume or suffer to exist any Lien on any of its property now owned or hereafter acquired to secure any Indebtedness other than: (i) Liens existing on the initial Closing Date (A) securing an aggregate amount not in excess of $2,400,000 and disclosed in the lien search report delivered under Section 5.1(h)(xiii), (B) securing obligations of CDB/Infotek owing to ChoicePoint, or (C) securing an amount not to exceed $250,000 in the aggregate; (ii) Liens on any property securing Indebtedness incurred or assumed for the purpose of financing all or any part of the acquisition cost of such property and any refinancing thereof, provided that such Lien does not extend to any other property and further provided that the amount of Indebtedness secured by such Liens does not exceed $10,000,000 in aggregate principal amount at any one time outstanding; (iii) Liens for taxes not yet due and payable, and Liens for taxes which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained; (iv) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained; 33 (v) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); (vi) zoning, easements and restrictions on the use of real property which do not materially impair the use of such property; (vii) Liens arising under ERISA; (viii) rights in property reserved or vested in any governmental authority which do not materially impair the use of such property; (ix) Liens on assets of newly acquired Subsidiaries which were in existence at the time of acquisition and not created in contemplation thereof; (x) Liens granted under the Operative Documents and Liens granted in connection with the Existing Lease; and (xi) Liens (other than those permitted by paragraphs (i) through (x) of this Section 5.2(a)) securing Indebtedness in an aggregate principal amount outstanding at any time not to exceed fifteen percent (15%) of the Consolidated Net Worth of the Consolidated Companies as of the last day of the immediately preceding fiscal quarter of ChoicePoint. (b) Guaranties. Create, incur, assume, guarantee, suffer to exist or otherwise become liable on or with respect to, directly or indirectly, any Guaranties other than: (i) endorsements of instruments for deposit or collection in the ordinary course of business; (ii) guarantees of Indebtedness owed by any Consolidated Company to another Consolidated Company; and (iii) Guaranties of Indebtedness to the extent such Indebtedness is permitted under Section 5.1(h)(ii). (c) Mergers, Consolidations. Merge or consolidate with any other Person, except that the foregoing restrictions shall not be applicable to: 34 (i) mergers or consolidations of (x) any Subsidiary with any other Subsidiary or (y) any Subsidiary with ChoicePoint; or (ii) mergers or consolidations in which any Person engaged in businesses in which ChoicePoint is engaged as of the initial Closing Date or substantially related thereto merges or consolidates with ChoicePoint or any of its Subsidiaries where the surviving corporation is ChoicePoint or such Subsidiary; or (iii) the merger of ChoicePoint Capital Corporation into ChoicePoint Capital, Inc.; provided that before and after giving effect to any such merger or consolidations and any Funded Debt incurred by ChoicePoint or such Subsidiary in connection with such merger or consolidation, (x)ChoicePoint is and will be in compliance with Section 5.1(h) hereof, and if the consideration paid by ChoicePoint or such Subsidiary in connection with such merger or consolidation is greater than $75,000,000, ChoicePoint has delivered pro forma financial covenants calculations demonstrating such compliance, in such detail and using such form of presentation of historical and forecasted financial information as may be satisfactory to the Agent with copies provided to each Funding Party (based on the projected Fixed Charges or Funded Debt, as the case may be, for the immediately succeeding four fiscal quarters (including Fixed Charges incurred as a result of the incurrence of any such Funded Debt) and the historical Consolidated EBIT (including the Consolidated EBIT of such Person)); and (y) no other Default or Event of Default exists. (d) Asset Sales. Sell, lease or otherwise dispose of its accounts, property, stock of its Subsidiaries or other assets; provided, however, that the foregoing restrictions on Asset Sales shall not be applicable to: (i) sales, leases, transfers or dispositions of assets of any Consolidated Company to ChoicePoint; (ii) sales of inventory in the ordinary course of business and unneeded, worn out or obsolete equipment; (iii) sales of accounts receivable (or of undivided ownership interests therein) pursuant to the asset securitization facilities; (iv) Asset Sales comprised of assets of any Consolidated Company where, on the date of execution of a binding obligation to make such Asset Sale, the assets which are the subject of the proposed Asset Sale, together with all other such Asset Sales of the Consolidated Companies during the current fiscal year of ChoicePoint, did not generate 35 ten percent (10%) or more of Consolidated EBITDA for the immediately preceding fiscal year of ChoicePoint; provided that notwithstanding the foregoing, no transaction pursuant to clauses (iii) or (iv) above shall be permitted if any Default or Event of Default exists at the time of such transaction or would exist as a result of such transaction. (e) Investments, Loans, Etc. Make, permit or hold any Investments other than: (i) Investments in the stock of Subsidiaries of ChoicePoint existing as of the Initial Closing Date or existing as Subsidiaries of ChoicePoint immediately prior to the making of such Investment, Investments in the form of loans and advances by ChoicePoint to any Subsidiary and Investments in the stock of Receivables Subsidiaries of ChoicePoint existing as of the date hereof; (ii) Investments in the stock or other assets of any other Person that is engaged in a business permitted by Section 5.2(j) hereof; provided, that after giving effect to such Investment and any Funded Debt incurred by ChoicePoint or such Subsidiary in connection with making such Investment, (x) ChoicePoint is and will be in compliance with Section 5.1(h) hereof, and if the Investment is greater than $75,000,000, ChoicePoint has delivered pro forma financial covenants calculations demonstrating such compliance, in such detail and using such form of presentation of historical and forecasted financial information as may be satisfactory to the Agent (based on the projected Fixed Charges or Funded Debt, as the case may be, for the immediately succeeding four fiscal quarters (including Fixed Charges incurred as a result of the incurrence of any such Funded Debt) and the historical Consolidated EBIT (including the Consolidated EBIT of such Person)); (y) no other Default or Event of Default exists hereunder; and (z) as a result of such Investment, such Person becomes a Subsidiary of ChoicePoint; (iii) marketable direct obligations of the United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, in each case supported by the full faith and credit of the United States and maturing within one year from the date of creation thereof; (iv) Investments received in settlement of Indebtedness created in the ordinary course of business, and the endorsement of negotiable instruments in the ordinary course of business; (v) commercial paper issued by corporations, each of which has a consolidated net worth of not less than $500,000,000, and conducts a substantial portion 36 of its business in the United States of America, maturing no more than 365 days from the date of acquisition thereof and having as at any date of determination a rating of P-1, P-2 or P-3 from Standard & Poor's or a rating of A-1, A-2 or A-3 from Moody's; (vi) money market or similar depository accounts, certificates of deposit or bankers acceptances, in each case redeemable upon demand or maturing within one year from the date of acquisition thereof, issued by commercial banks incorporated under the laws of the United States of America or any state thereof or the District of Columbia, provided (x) each such bank has at any date of determination combined capital and surplus of not less than $1,000,000,000 and a rating of its long-term debt of at least A by Standard & Poor's or at least A by Moody's or a long-term deposit rating of at least A issued by Standard & Poor's or at least A issued by Moody's, (y) the aggregate amount of all such certificates of deposit issued by such bank are fully insured at all times by the Federal Deposit Insurance Company; (vii) Loans and advances to officers and employees of the Consolidated Companies made in the ordinary course of business, including, without limitation, loans to executives for the purchase of stock of the Lessee pursuant to a program established by the Board of Directors or a committee thereof from time to time in an amount not to exceed $15,000,000; (viii) Investments in joint ventures in an aggregate amount during any fiscal year of ChoicePoint not to exceed an amount equal to ten percent (10%) of ChoicePoint's Consolidated Net Worth as of the end of the immediately preceding fiscal year of ChoicePoint; and (ix) Investments (other than those permitted by paragraphs (i) through (viii) above) in an aggregate amount during any fiscal year of ChoicePoint not to exceed an amount equal to five (5%) percent of ChoicePoint's Consolidated Net Worth as of the end of the immediately preceding fiscal year of ChoicePoint. (f) Transactions with Affiliates. Enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of any Consolidated Company (but excluding any Affiliate which is also a Subsidiary that is directly or indirectly wholly owned by ChoicePoint), other than on terms and conditions substantially as favorable to such Consolidated Company as would be obtained by such Consolidated Company at the time in a comparable arm's-length transaction with a Person other than an Affiliate; and (g) ERISA. (i) Take or fail to take any action with respect to any Plan maintained or contributed to by any Consolidated Company or, with respect to its ERISA Affiliates, any Plans which are subject to Title IV of ERISA or to continuation health care requirements for group health plans under Section 4980B of the Tax Code, including without 37 limitation (1) establishing any such Plan, (2) amending any such Plan (except where required to comply with applicable law), (3) terminating or withdrawing from any such Plan, or (4) incurring an amount of unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal liability under Title IV of ERISA with respect to any such Plan, or any unfunded liabilities under any Foreign Plan, without first obtaining the written approval of the Required Lenders, where such actions or failures could result in a Material Adverse Effect; or (ii) Permit a Plan or Foreign Plan maintained or contributed to by a Consolidated Company or a Plan subject to Title IV of ERISA of any of its ERISA Affiliates: (1) to fail to be funded in accordance with the minimum funding standard required by applicable law, the terms of such Plan or Foreign Plan, Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan or Foreign Plan under applicable law, the terms of such Plan or Foreign Plan or Section 412 of the Tax Code or Section 303 of ERISA; or (2) to be terminated or the subject of termination proceedings under applicable law or the terms of such Plan or Foreign Plan; or (3) to require a Consolidated Company to provide security under applicable law, the terms of such Plan or Foreign Plan, Section 401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or (4) to result for any reason, in a liability (including without limitation, withdrawal liability) to a Consolidated Company under applicable law, the terms of such Plan or Foreign Plan, or Title IV of ERISA; if the result from any such failure, waiver, termination or other event a liability to the PBGC (or any similar Person with respect to any Foreign Plan), a Plan or any other Person that would have a Materially Adverse Effect. (h) Additional Negative Pledges. Create or otherwise cause or suffer to exist or become effective, directly or indirectly, any prohibition or restriction on the creation or existence of any Lien upon any asset of any Consolidated Company, other than the prohibitions and restrictions contained in this Master Agreement. (i) Changes in Business. Enter into any business which is substantially different from that presently conducted by the Consolidated Companies taken as a whole, which includes providing risk management and fraud prevention information and related technology solutions to the property and casualty insurance industry, life and health insurance industry and other industries, (including, without limitation, (1) providing automated and traditional 38 underwriting and claim information services to assist U.S. insurance companies in assessing the insurability of individuals and property and the validity of insurance claims, (2) providing background investigations, (3) performing paramedical exams, (4) furnishing access to motor vehicles reports, (5) maintaining a database of claims histories, (5) providing claim verification and investigative services to both the property and casualty and the life and health insurance markets, (6) providing pre-employment background investigations, pre-employment and regulatory compliance drug testing services and public record information to other corporate and government organizations), unless such business is a strategic extension of the business of the Consolidated Companies as of the Initial Closing Date. (j) Limitation on Payment Restrictions Affecting Consolidated Companies. Create or otherwise cause or suffer to exist or become effective, any consensual encumbrance or restriction on the ability of any Consolidated Company to (i) pay dividends or make any other distributions to ChoicePoint or any other Subsidiary on such Consolidated Company's stock, provided that this provision shall not affect CBD/Infotek's payment of dividends or distributions on its stock to ChoicePoint, or (ii) pay any indebtedness owed to ChoicePoint or any other Consolidated Company, or (iii) transfer any of its property or assets to ChoicePoint or any other Consolidated Company, except any consensual encumbrance or restriction existing under the Credit Documents or the Operative Documents. (k) Changes in Fiscal Year. Change the calculation of the fiscal year of ChoicePoint. (l) Wetlands. Not undertake any development activities on the Leased Property located in Fulton County, Georgia until such time as ChoicePoint has provided evidence reasonably satisfactory to the Agent of the limits of the wetlands and the floodplain with respect to such Leased Property. SECTION 5.3 Environmental Notices. Upon becoming aware of such matters, each Lessee shall furnish to the Funding Parties and the Agent prompt written notice of all Environmental Liabilities, pending or anticipated Environmental Proceedings, Environmental Notices, Environmental Judgments and Orders, and Environmental Releases at, on, in, under or in any way affecting the Properties or any adjacent property, and all facts, events, or conditions that could lead to any of the foregoing, in each case if the same would have a Material Adverse Effect. SECTION 5.4 Environmental Matters. Except as set forth in Schedule 5.4, as revised from time to time, neither ChoicePoint nor any Consolidated Subsidiary will, and ChoicePoint will not permit any Third Party to, use, produce, manufacture, process, treat, recycle, generate, store, dispose of, manage at, or otherwise handle, or ship or transport to or from the Properties any Hazardous Materials, except for Hazardous Materials used, produced, manufactured, processed, treated, recycled, generated, stored, disposed, managed, or otherwise handled in 39 minimal amounts in the ordinary course of business in compliance with all applicable Environmental Laws in each case where the failure to comply would not have a Material Adverse Effect. SECTION 5.5 Environmental Release. ChoicePoint agrees that upon the occurrence of an Environmental Release at or on any of the Properties owned by it or any Consolidated Subsidiary, it will take appropriate action required by applicable law, except in such cases where the failure to take such action would not have a Material Adverse Effect. SECTION 5.6 Further Assurances. Upon the written request of the Agent or any Funding Party, each Lessee, at its own cost and expense, will cause all financing statements (including precautionary financing statements), fixture filings and other similar documents to be signed by such Lessee and recorded or filed at such places and times in such manner as may be necessary or requested by the Agent or such Funding Party to preserve, protect and perfect the interest of the Agent and the Funding Parties in the Leased Properties as contemplated by the Operative Documents. SECTION 5.7 Additional Required Appraisals. If, as a result of any change in Applicable Law after the date hereof, an appraisal of all or any of the Leased Properties is required during the Lease Term under Applicable Law with respect to any Funding Party's interest therein, such Funding Party's Funded Amount with respect thereto or the Operative Documents, then the related Lessee shall pay the reasonable cost of such appraisal. SECTION 5.8 Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent, ChoicePoint and the Lenders shall have otherwise consented in writing: (a) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent, as agent for the Lessor, or the related Lessee for Construction Costs. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock; (b) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transaction and lease transactions similar to the Transaction; (c) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor) and will at all times be solvent (as defined in the Bankruptcy Code); 40 (d) it will deliver to the Agent and ChoicePoint, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with sound accounting principles, together with copies of its tax returns, all certified by an officer of the General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereof to the Agent and ChoicePoint); (e) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees, in each case during normal business hours and upon reasonable notice; (f) it shall not consent to or permit the creation of any easement or other restriction against any Leased Property other than as permitted pursuant to Article VI of the Lease; and (g) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from, or incurred as a result of, such Lessor Liens. ARTICLE VI. TRANSFERS BY LESSOR AND LENDERS; DISTRIBUTION OF PAYMENTS AND PROCEEDS SECTION 6.1 Lessor Transfers. The Lessor shall not assign, convey or otherwise transfer all or any portion of its right, title or interest in, to or under any Leased Property or any of the Operative Documents, except to a Lessee in accordance with the Operative Documents without the prior written consent of the Lenders and, unless an Event of Default has occurred and is continuing, ChoicePoint. Any proposed transferee of the Lessor shall make the representation set forth in Section 4.3 to the other parties hereto. SECTION 6.2 Lender Transfers. (a) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender. (b) Each Lender may assign all or a portion of its interests, rights and obligations under this Master Agreement and the Loan Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) to any Person; provided, however, that (i) the 41 Agent and, except during the continuance of a Potential Event of Default or Event of Default, ChoicePoint must give its prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is to another Lender or Affiliate of the assigning Lender, (ii) unless such Lender is assigning all of its Commitment, after giving effect to such assignment, the Commitment of both the assignor and the assignee is at least $5,000,000 and is an integral multiple of $1,000,000 and (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, and, a processing and recordation fee of $2,500. Any such assignment of the Loans shall include both the A Loans and the B Loans of such assigning Lender, on a pro rata basis. From and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Master Agreement and the Loan Agreement. (c) Each Lender may, without the consent of ChoicePoint or any Lessee, sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Master Agreement and the Loan Agreement (including all or a portion of its Commitments in the Loans owing to it), provided, however, that (i) no Lender may sell a participation in its Commitment (after giving effect to any permitted assignment hereunder) in an amount in excess of fifty percent (50%) of such Commitment (provided that (1) sales of participations to an Affiliate of Lender shall not be included in such calculation and (2) no such maximum amount shall be applicable to any participation sold at any time there exists an Event of Default), (ii) such Lender's obligations under this Master Agreement and the Loan Agreement shall remain unchanged, (iii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iv) the participating bank or other entity shall not be entitled to any greater benefit than its selling Lender under the cost protection provisions contained in Sections 7.4 and 7.5 of this Master Agreement, and (v) ChoicePoint, each Lessee, the Agent and the other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations under this Master Agreement and the other Operative Documents, and such Lender shall retain the sole right to enforce the obligations of Lessor relating to the Loans and to approve any amendment, modification or waiver of any provisions of this Master Agreement and the Loan Agreement (except that such Lender may permit the participant to approve any amendment, modification or waiver which would reduce the principal of or the interest rate on its Loan, extend the term of such Lender's Commitment, reduce the amount of any fees to which such participant is entitled or extend the final scheduled payment date of any Loan, it being understood that in all events, the other parties hereto may conclusively rely on such Lender's approval of any such amendment, modification or waiver and shall have no obligation to ascertain whether such participant has approved such amendment, modification or waiver). Any Lender selling a participation hereunder shall provide prompt written notice to the Agent of the name of such participant. (d) Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the 42 assignee or participant or proposed assignee or participant any information relating to ChoicePoint or its Subsidiaries furnished to such Lender by or on behalf of ChoicePoint. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States. The proposed participant or assignee shall agree not to disclose any of such information except as permitted by this Master Agreement. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from any Lender, the Agent or any Lessee relating to such confidential information unless otherwise properly disposed of by such entity. (e) Any Lender may at any time assign all or any portion of its rights under this Master Agreement and the Note to a Federal Reserve Bank without complying with the requirements of paragraph (b) above; provided that no such assignment shall release such Lender from any of its obligations hereunder. (f) The Lenders hereby acknowledge and agree that the Lessees shall have the right to the quiet enjoyment of the Leased Properties pursuant to the Lease, whether or not a Loan Event of Default that is not an Event of Default has occurred and is continuing, so long as no Event of Default has occurred and is continuing. SECTION 6.3 Distribution and Application of Rent Payments. (a) Basic Rent. Each payment of Basic Rent (and any payment of interest on overdue installments of Basic Rent) received by the Agent shall be distributed pro rata to the Funding Parties to be applied to the amounts of accrued and unpaid interest (including overdue interest) on the Loans and accrued and unpaid Yield (including overdue Yield). (b) Supplemental Rent. Each payment of Supplemental Rent received by the Agent shall be paid to or upon the order of the Person owed the same in accordance with the Operative Documents. SECTION 6.4 Distribution and Application of Purchase Payment. With respect to any Leased Property, the payment by a Lessee of: (a) the purchase price for a consummated sale of such Leased Property received by the Agent in connection with such Lessee's exercise of the Purchase Option or Partial Purchase Option under Section 14.1 of the Lease or such Lessee's or the Construction Agent's exercise of its option to purchase such Leased Property under Section 5.3 of the Construction Agency Agreement, or 43 (b) the payment payable in connection with such Lessee's compliance with its obligation to purchase the Leased Property in accordance with Section 14.2 or 14.3 of the Lease, or (c) the Leased Property Balance therefor in accordance with Section 10.1 or Section 10.2 of the Lease, shall be distributed by Agent as promptly as possible, to the Funding Parties pro rata in accordance with, and for application to, their respective Funding Party Balances in respect of such Leased Property or Properties (including both that portion of the A Loans and that portion of the B Loans allocated to such Leased Property or Properties). SECTION 6.5 Distribution and Application to Funding Party Balances of Lessee Payment of Recourse Deficiency Amount Upon Exercise of Remarketing Option. With respect to any Leased Property, the payment by a Lessee of the Recourse Deficiency Amount to the Agent on the Lease Termination Date in accordance with Section 14.6 or Section 14.7 of the Lease following the Lessees' exercise of the Remarketing Option, shall be applied by the Agent to the accrued and unpaid interest on, and the outstanding principal of, the A Loans in respect of such Leased Property. With respect to any Leased Property, the payment by a Lessee or the Construction Agent of the Construction Failure Payment with respect thereto pursuant to the Construction Agency Agreement shall be applied by the Agent, first to the accrued and unpaid interest on, and the outstanding principal of, the A Loans in respect of such Leased Property, second to the accrued and unpaid interest on, and outstanding principal of, the B Loans related to such Leased Property and third to the accrued and unpaid Yield on, and outstanding Lessor Invested Amount related to such Leased Property. SECTION 6.6 Distribution and Application to Funding Party Balances of Remarketing Proceeds of Leased Property. (a) Any payments received by the Lessor as proceeds from the sale of any Leased Property sold pursuant to the Lessees' exercise of the Remarketing Option pursuant to Section 14.6 or 14.7 of the Lease, shall be distributed (or applied, in the case of clause third below) by the Lessor as promptly as possible (it being understood that any such payment received by the Lessor on a timely basis and in accordance with the provisions of the Lease shall be distributed on the date received in the funds so received) in the following order of priority: first, to the extent not previously deducted from such proceeds, to the Agent and the Funding Parties as reimbursement for any and all reasonable remarketing, sale, closing or other transfer costs, prorations or commissions (including broker fees, appraisal costs, legal fees and expenses and transfer taxes), paid or incurred by the Agent or any Funding Party and not reimbursed by the Lessees, pro rata according to the amount of such costs and fees; 44 second, to the Lenders pro rata for application to their B Loans in respect of all of the Leased Properties, an amount equal to their B Loans in respect of all of the Leased Properties; third, to the Lessor for application to the Lessor's Invested Amounts in respect of all of the Leased Properties, an amount equal to the Lessor's Invested Amounts in respect of all of the Leased Properties; fourth, to the Funding Parties pro rata for application to any other amount owing to the Funding Parties under the Operative Documents (including accrued and unpaid interest on the Loans, accrued and unpaid Yield and any outstanding principal of the A Loans), an amount equal to such other amounts; and fifth, (i) if sold by a Lessee pursuant to Section 14.6 of the Lease, the excess, if any, to such Lessee, and (ii) otherwise, the excess, if any, to the Lessor. (b) Any payments received by the Lessor as proceeds from the sale of any Leased Property sold following the payment of the Construction Failure Payment shall be distributed (or applied, as appropriate) by the Lessor as promptly as possible (it being understood that any such payment received by the Lessor on a timely basis and in accordance with the provisions of the Construction Agency Agreement shall be distributed on the date received in the funds so received) in the following order of priority: first, to the Funding Parties or the Agent, as the case may be, in reimbursement of all reasonable costs, expenses and taxes, if any, incurred by any of them to complete the construction of such Leased Property, maintain and insure such Leased Property, remarket such Leased Property and sell such Leased Property, pro rata according to the amount of such costs, expenses and taxes; second, to the Lenders pro rata for application to their Funding Party Balances in respect to such Leased Property (including both that portion of the A Loans and that portion of the B Loans allocated to such Leased Property), an amount equal to such Funding Party Balances in respect of such Leased Property; and third, to the Lessor. SECTION 6.7 Distribution and Application of Payments Received When an Event of Default Exists or Has Ceased to Exist Following Rejection of the Lease. (a) Proceeds of Leased Property. Any payments received by the Lessor or the Agent when an Event of Default exists (or has ceased to exist by reason of a rejection of the Lease in a proceeding with respect to a Lessee described in Article XII(f) of the Lease), as 45 (i) proceeds from the sale of any or all of the Leased Property sold pursuant to the exercise of the Lessor's remedies pursuant to Article XIII of the Lease, or (ii) proceeds of any amounts from any insurer or any Governmental Authority in connection with an Event of Loss or Event of Taking shall if received by the Lessor be paid to the Agent as promptly as possible, and shall be distributed or applied in the following order of priority prior to the Release Date: first, to the Agent for any amounts reasonably expended by it in connection with such Leased Property or the Operative Documents and not previously reimbursed to it; second, to the Lenders pro rata for application to their Funding Party Balances in respect of all of the Leased Properties, an amount equal to such Funding Party Balances; third, to the Lessor for application to its Funding Party Balances in respect of all of the Leased Properties, an amount equal to such Funding Party Balances; and fourth, to the related Lessee or the Person or Persons otherwise legally entitled thereto, the excess, if any. (b) Proceeds of Recoveries from Lessee. Any payments received by any Funding Party when an Event of Default exists (or has ceased to exist by reason of a rejection of the Lease in a proceeding with respect to a Lessee described in Article XII(f) of the Lease), from a Lessee as a payment in accordance with the Lease shall be paid to the Agent as promptly as possible, and shall then be distributed or applied by the Agent as promptly as possible in the order of priority set forth in paragraph (a) above. SECTION 6.8 Distribution of Other Payments. All payments under Section 7.6 of this Master Agreement shall be made first, to the Funding Parties, pro rata, until their Funding Party Balances have been paid in full, and second, to the Lessor who shall be entitled to retain all such remaining amounts. Except as otherwise provided in this Section 6, any payment received by the Lessor which is to be paid to Agent pursuant hereto or for which provision as to the application thereof is made in an Operative Document but not elsewhere in this Section 6 shall, if received by the Lessor, be paid forthwith to the Agent and when received shall be distributed forthwith by the Agent to the Person and for the purpose for which such payment was made in accordance with the terms of such Operative Document. SECTION 6.9 Timing of Agent Distributions. Payments received by the Agent in immediately available funds before 12:00 p.m. (noon), Atlanta, Georgia time, on any Business Day shall be distributed to the Funding Parties in accordance with and to the extent provided in 46 this Section 6 on such Business Day. Payments received by the Agent in immediately available funds after 12:00 p.m. (noon), Atlanta, Georgia time shall be distributed to the Funding Parties in accordance with and to the extent provided in this Section 6 on the next Business Day. SECTION 6.10 Release of Leased Properties. (a) If one or more of the Lessees shall at any time purchase any or all of the Leased Properties pursuant to Section 13.3 or Article 14 of the Lease, or if any or all of the Leased Properties shall be sold in accordance with, and the Lessees otherwise satisfy each of the obligations and conditions set forth in, Section 14.6 of the Lease in respect thereof, then, upon application of such amounts to prepay the related Loans pursuant to this Master Agreement and the Loan Agreement and the Agent's and the Lenders' receipt of all accrued interest and any other payments due and owing from the Lessees and/or the Lessor to the Agent and the Lenders on such date in respect thereof, such Leased Property or Properties, as the case may be, shall be released from the applicable Mortgage and the Assignment of Lease and Rents, to the extent relating to such Leased Property or Properties. (b) Upon the termination of the Lenders' Commitments and the payment in full of all of the Loans and all other amounts owing by the Lessees and/or the Lessor hereunder or under any other Operative Document to the Lessor, the Agent and the Lenders (other than unasserted indemnities), the Leased Properties shall be released from the Mortgages and Assignments of Lease and Rents. (c) Upon request of the Lessor or a Lessee following a release of any Leased Property described in clause (a) or (b) above, the Agent shall, at the sole cost and expense of the Lessees, execute and deliver to the Lessor or the requesting Lessee such documents as the Lessor or such Lessee shall reasonably request to evidence such release, including, if requested, a release of the Assignments of Lease and Rents to the extent relating to such Leased Property. ARTICLE VII. INDEMNIFICATION SECTION 7.1 General Indemnification. Each of ChoicePoint and each Lessee, jointly and severally, agrees, whether or not any of the transactions contemplated hereby shall be consummated, to assume liability for, and to indemnify, protect, defend, save and hold harmless each Indemnitee, on an After-Tax Basis, from and against, any and all Claims that may be imposed on, incurred by or asserted, or threatened to be asserted, against such Indemnitee, whether or not such Indemnitee shall also be indemnified as to any such Claim by any other Person (provided that no Indemnitee shall have the right to double recovery with respect to any Claim) and whether or not such Claim arises or accrues prior to any Closing Date or after the Lease Termination Date, or results from such Indemnitee's negligence, in any way relating to or arising out of: 47 (a) any of the Operative Documents or any of the transactions contemplated thereby, and any amendment, modification or waiver in respect thereof; or (b) the purchase, design, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, ownership, management, possession, operation, rental, lease, sublease, repossession, maintenance, repair, alteration, modification, addition, substitution, storage, transfer of title, redelivery, use, financing, refinancing, disposition, operation, condition, sale (including, without limitation, any sale pursuant to the Lease), return or other disposition of all or any part of any interest in any Leased Property or the imposition of any Lien, other than a Lessor Lien (or incurring of any liability to refund or pay over any amount as a result of any Lien, other than a Lessor Lien) thereon, including, without limitation: (i) Claims or penalties arising from any violation or alleged violation of law or in tort (strict liability or otherwise), (ii) latent or other defects, whether or not discoverable, (iii) any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to any Leased Property or any part thereof, (iv) the making of any Alterations in violation of any standards imposed by any insurance policies required to be maintained by any Lessee pursuant to the Lease which are in effect at any time with respect to any Leased Property or any part thereof, (v) any Claim for patent, trademark or copyright infringement, (vi) Claims arising from any public improvements with respect to any Leased Property resulting in any charge or special assessments being levied against any Leased Property or any Claim for utility "tap-in" fees, and (vii) Claims for personal injury or real or personal property damage occurring, or allegedly occurring, on any Land, Building or Leased Property; (c) the breach by ChoicePoint or any Lessee of any representation or warranty made by it or deemed made by it in any Operative Document or any certificate required to be delivered by any Operative Document (without giving effect to any exception in any representation based on knowledge or on the absence of a Material Adverse Effect); (d) the retaining or employment of any broker, finder or financial advisor by ChoicePoint or any Lessee to act on its behalf in connection with this Master Agreement, or the incurring of any fees or commissions to which the Lessor, the Agent or any Lender might be subjected by virtue of their entering into the transactions contemplated by this Master Agreement (other than fees or commissions due to any broker, finder or financial advisor retained by the Lessor, the Agent or any Lender); (e) the existence of any Lien (other than a Lessor Lien) on or with respect to any Leased Property, the Construction, any Basic Rent or Supplemental Rent, title thereto, or any interest therein, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of any Leased Property or by reason of labor or materials furnished or claimed to have been furnished to the Construction Agent, any Lessee, or any of its contractors or agents or by reason of the financing of any personalty or equipment purchased or 48 leased by any Lessee or Alterations constructed by any Lessee, except, in all cases, the Liens described in item (a) of the definition of Permitted Liens; (f) the transactions contemplated hereby or by any other Operative Document, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code; (g) any act or omission by ChoicePoint or any Lessee under any Purchase Agreement or any other Operative Document, or any breach by ChoicePoint or any Lessee of any requirement, condition, restriction or limitation in any Deed, Purchase Agreement, IDB Documentation or Ground Lease; or (h) any IDB Documentation; provided, however, neither ChoicePoint nor any Lessee shall be required to indemnify any Indemnitee under this Section 7.1 for any Claim to the extent that such Claim results from (collectively, "Excepted Claims"): (1) any representation or warranty by such Indemnitee in the Operative Documents being incorrect; (2) the willful misconduct or gross negligence of, or the violation of any law, rule or regulation binding upon such Indemnitee unless such violation was caused by some performance or nonperformance on the part of a Lessee; (3) the failure on the part of the Lessor or the Agent to distribute in accordance with this Master Agreement or any other Operative Document any amounts received and distributable by it under the Operative Documents; (4) Lessor Liens; (5) the voluntary transfer by any Indemnitee, other than in accordance with the Operative Documents or in connection with the exercise of rights, powers or remedies under any of the Operative Documents, of any Leased Property or any interest therein; or (6) claims from any acts or omissions occurring after the latest of the Lease Termination Date, the sale of the Leased Property to a Person not affiliated with a Lessee pursuant to the Lease, the termination of the obligations of the Construction Agent under the Construction Agency Agreement, or the final indefeasible repayment to the Funding Parties in full of the Lease Balance; and, provided, further, that with respect to each Construction Land Interest, each Lessee's indemnity obligations with respect to such Leased Property shall be governed solely by Section 3.3 of the Construction Agency Agreement during the Construction Term therefor. It is expressly understood and agreed that the indemnity provided for herein shall survive the expiration or termination of, and shall be separate and independent from any other remedy under this Master Agreement, the Lease or any other Operative Document. SECTION 7.2 Environmental Indemnity. In addition to and without limitation of Section 7.1 or Section 3.3 of the Construction Agency Agreement (but subject to the proviso set forth below), each of ChoicePoint and each Lessee, jointly and severally, agrees to indemnify, hold harmless and defend each Indemnitee, on an After-Tax Basis, from and against any and all claims (including without limitation third party claims for personal injury or real or personal property damage), losses (including but not limited to any loss of value of any Leased Property), 49 damages, liabilities, fines, penalties, charges, suits, settlements, demands, administrative and judicial proceedings (including informal proceedings and investigations) and orders, judgments, remedial action, requirements, enforcement actions of any kind, and all reasonable costs and expenses actually incurred in connection therewith (including, but not limited to, reasonable attorneys' and/or paralegals' fees and expenses), including, but not limited to, all costs incurred in connection with any investigation or monitoring of site conditions or any clean-up, remedial, removal or restoration work by any federal, state or local government agency, arising directly or indirectly, in whole or in part, out of (i) the presence on or under any Land of any Hazardous Materials, or any releases or discharges of any Hazardous Materials on, under, from or onto any Land, (ii) any activity, including, without limitation, construction, carried on or undertaken on or off any Land, and whether by a Lessee or any predecessor in title or any employees, agents, contractors or subcontractors of a Lessee or any predecessor in title, or any other Person, in connection with the handling, treatment, removal, storage, decontamination, clean-up, transport or disposal of any Hazardous Materials that at any time are located or present on or under or that at any time migrate, flow, percolate, diffuse or in any way move onto or under any Land, (iii) loss of or damage to any property or the environment (including, without limitation, clean-up costs, response costs, remediation and removal costs, cost of corrective action, costs of financial assurance, fines and penalties and natural resource damages), or death or injury to any Person, and all expenses associated with the protection of wildlife, aquatic species, vegetation, flora and fauna, and any mitigative action required by or under Environmental Laws, in each case to the extent related to any Leased Property, (iv) any claim concerning any Leased Property's lack of compliance with Environmental Laws, or any act or omission causing an environmental condition on or with respect to any Leased Property that requires remediation or would allow any governmental agency to record a lien or encumbrance on the land records, or (v) any residual contamination on or under any Land, or affecting any natural resources on any Land, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, storage, transport or disposal of any such Hazardous Materials on or from any Leased Property; in each case irrespective of whether any of such activities were or will be undertaken in accordance with applicable laws, regulations, codes and ordinances; 50 in any case with respect to the matters described in the foregoing clauses (i) through (v) that arise or occur (w) prior to or during the Lease Term, (x) at any time during which a Lessee or any Affiliate thereof owns any interest in or otherwise occupies or possesses any Leased Property or any portion thereof, (y) during any period after and during the continuance of any Event of Default; or (z) during any period of up to three years following the date an Indemnitee takes possession of any Leased Property and during which such Indemnitee retains such possession; provided, however, no Lessee shall be required to indemnify any Indemnitee under this Section 7.2 for any Claim to the extent that such Claim results from the willful misconduct or gross negligence of such Indemnitee (other than gross negligence or willful misconduct imputed to such Indemnitee solely by reason of its interest in any Leased Property; and provided, further, with respect to matters arising or occurring within the period described in (z) above, that the Lessee also shall not be required to indemnify any Indemnitee under this Section 7.2 for any Claim to the extent that such Claim results from any act or omission occurring after the date on which Indemnitee so took possession). It is expressly understood and agreed that the indemnity provided for herein shall survive the expiration or termination of, and shall be separate and independent from any other remedy under this Master Agreement, the Lease or any other Operative Document. SECTION 7.3 Proceedings in Respect of Claims. With respect to any amount that a Lessee is requested by an Indemnitee to pay by reason of Section 7.1 or 7.2, such Indemnitee shall, if so requested by such Lessee and prior to any payment, submit such additional information to such Lessee as such Lessee may reasonably request and which is in the possession of, or under the control of, such Indemnitee to substantiate properly the requested payment. In case any action, suit or proceeding shall be brought against any Indemnitee, such Indemnitee promptly shall notify ChoicePoint of the commencement thereof (provided that the failure of such Indemnitee to promptly notify ChoicePoint shall not affect ChoicePoint's or any Lessee's obligation to indemnify hereunder except to the extent that a Lessee's rights to contest are materially prejudiced by such failure), and such Lessee shall be entitled, at its expense, to participate in, and, to the extent that such Lessee desires to, assume and control the defense thereof with counsel reasonably satisfactory to such Indemnitee; provided, however, that such Indemnitee may pursue a motion to dismiss such Indemnitee from such action, suit or proceeding with counsel of such Indemnitee's choice at the Lessees' expense; and provided further that a Lessee may assume and control the defense of such proceeding only if ChoicePoint, if requested 51 to do so by the Indemnitee, shall have acknowledged in writing its and each Lessee's obligations to fully indemnify such Indemnitee in respect of such action, suit or proceeding, Lessees shall pay all reasonable costs and expenses related to such action, suit or proceeding as and when incurred and the related Lessee shall keep such Indemnitee fully apprised of the status of such action, suit or proceeding and shall provide such Indemnitee with all information with respect to such action, suit or proceeding as such Indemnitee shall reasonably request; and, provided further, that no Lessee shall be entitled to assume and control the defense of any such action, suit or proceeding if and to the extent that, (A) in the reasonable opinion of such Indemnitee, (x) such action, suit or proceeding involves any possibility of imposition of criminal liability or any material risk of civil liability on such Indemnitee in excess of $1,000,000 or (y) such action, suit or proceeding will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Leased Property or any part thereof unless the related Lessee or ChoicePoint shall have posted a bond or other security satisfactory to the relevant Indemnitees in respect to such risk or (z) the control of such action, suit or proceeding would involve an actual or potential conflict of interest, (B) such proceeding involves Claims not fully indemnified by the Lessees which the related Lessee and the Indemnitee have been unable to sever from the indemnified claim(s), or (C) an Event of Default has occurred and is continuing. The Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by a Lessee in accordance with the foregoing. If a Lessee fails to fulfill the conditions to such Lessee's assuming the defense of any claim after receiving notice thereof on or prior to the later of (a) the date that is five (5) days after receiving notice thereof and (b) the date that is fifteen (15) days prior to the date that an answer or response is required, the Indemnitee may undertake such defense, at the Lessees' expense. No Lessee shall enter into any settlement or other compromise with respect to any Claim which admits any liability or wrong-doing on part of any Indemnitee or which is in excess of $1,000,000 which is entitled to be indemnified under Section 7.1 or 7.2 without the prior written consent of the related Indemnitee, which consent shall not be unreasonably withheld or delayed. Unless an Event of Default shall have occurred and be continuing, no Indemnitee shall enter into any settlement or other compromise with respect to any claim which is entitled to be indemnified under Section 7.1 or 7.2 without the prior written consent of ChoicePoint, which consent shall not be unreasonably withheld, unless such Indemnitee waives its right to be indemnified under Section 7.1 or 7.2 with respect to such Claim. Upon payment in full of any Claim by the Lessees pursuant to Section 7.1 or 7.2 to or on behalf of an Indemnitee, the Lessees, without any further action, shall be subrogated to any and all claims that such Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Indemnitee at its own expense), and such Indemnitee shall execute such instruments of assignment and conveyance, evidence of claims and payment and such other documents, instruments and agreements as may be reasonably necessary to preserve any such claims and otherwise cooperate with the Lessees and give such further assurances as are reasonably necessary or advisable to enable the Lessees vigorously to pursue such claims. 52 If for any reason the indemnification provided for in Section 7.1 or 7.2 is unavailable to an Indemnitee or is insufficient to hold an Indemnitee harmless, then each of ChoicePoint and each Lessee agrees to contribute to the amount paid or payable by such Indemnitee as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnitee on the one hand and by ChoicePoint and the Lessees on the other hand but also the relative fault of such Indemnitee as well as any other relevant equitable considerations. It is expressly understood and agreed that the right to contribution provided for herein shall survive the expiration or termination of and shall be separate and independent from any other remedy under this Master Agreement, the Lease or any other Operative Document. SECTION 7.4 General Tax Indemnity. (a) Tax Indemnity. Except as otherwise provided in this Section 7.4, each of ChoicePoint and each Lessee, jointly and severally, shall pay on an After-Tax Basis, and on written demand shall indemnify and hold each Tax Indemnitee harmless from and against, any and all fees (including, without limitation, documentation, recording, license and registration fees), taxes (including, without limitation, income, gross receipts, sales, rental, use, turnover, value-added, property, excise and stamp taxes), levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever, together with any penalties, fines or interest thereon or additions thereto (any of the foregoing being referred to herein as "Taxes" and individually as a "Tax" (for the purposes of this Section 7.4, the definition of "Taxes" includes amounts imposed on, incurred by, or asserted against each Tax Indemnitee as the result of any prohibited transaction, within the meaning of Section 406 or 407 of ERISA or Section 4975(c) of the Code, arising out of the transactions contemplated hereby or by any other Operative Document)) imposed on or with respect to any Tax Indemnitee, any Lessee, ChoicePoint, any Leased Property or any portion thereof or any Land, or any sublessee or user thereof, by the United States or by any state or local government or other taxing authority in the United States in connection with or in any way relating to (i) the acquisition, financing, mortgaging, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, purchase, ownership, possession, rental, lease, sublease, maintenance, repair, storage, transfer of title, redelivery, use, operation, condition, sale, return or other application or disposition of all or any part of any Leased Property or the imposition of any Lien (or incurrence of any liability to refund or pay over any amount as a result of any Lien) thereon, (ii) Basic Rent or Supplemental Rent or the receipts or earnings arising from or received with respect to any Leased Property or any part thereof, or any interest therein or any applications or dispositions thereof, (iii) any other amount paid or payable pursuant to the Notes or any other Operative Documents, (iv) any Leased Property, any Land or any part thereof or any interest therein (including, without limitation, all assessments payable in respect thereof, including, without limitation, all assessments noted on the related Title Policy), (v) all or any of the Operative Documents, any other documents contemplated thereby, any amendments and supplements thereto, and (vi) otherwise with respect to or in connection with the transactions contemplated by the Operative Documents. Notwithstanding the foregoing, during the Construction Term for any Construction Land Interest, (i) ChoicePoint and the Lessees shall only 53 be obligated to indemnify the Lessor and its Affiliates, successors, permitted assigns, permitted transferees, employees, officers, directors and agents, with respect to Taxes related to such Construction Land Interest and (ii) Lessor hereby indemnifies the other Tax Indemnitees (as defined in clause (ii) of the definition thereof) for such Taxes, to the extent that Lessor receives payment therefor from ChoicePoint or any Lessee. (b) Exclusions from General Tax Indemnity. Section 7.4(a) shall not apply to: (i) Taxes on, based on, or measured by or with respect to net income of the Lessor, the Agent and the Lenders (including, without limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative minimum Taxes) other than (A) any such Taxes that are, or are in the nature of, sales, use, license, rental or property Taxes, and (B) withholding Taxes imposed by the United States or any state in which Leased Property is located (i) on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the date on which Lender became a Lender hereunder or (ii) on Rent, to the extent the net payment of Rent after deduction of such withholding Taxes would be less than amounts currently payable with respect to the Funded Amounts; (ii) Taxes on, based on, or in the nature of, or measured by Taxes on doing business and business privilege, franchise, capital, capital stock, net worth, gross receipts or similar Taxes, other than (A) any increase in such Taxes imposed on such Tax Indemnitee by any state in which Leased Property is located, net of any decrease in such taxes realized by such Tax Indemnitee, to the extent that such tax increase would not have occurred if on each Funding Date the Lessor and the Lenders had advanced funds to a Lessee or the Construction Agent in the form of loans secured by the Leased Property in an amount equal to the Funded Amounts funded on such Funding Date, with debt service for such loans equal to the Basic Rent payable on each Payment Date and a principal balance at the maturity of such loans in a total amount equal to the Funded Amounts at the end of the Lease Term, or (B) any Taxes that are or are in the nature of sales, use, rental, license or property Taxes relating to any Leased Property; (iii) Taxes that are based on, or measured by, the fees or other compensation received by a Person acting as Agent (in its individual capacities) or any Affiliate of any thereof for acting as trustee under the Loan Agreement; (iv) Taxes that result from any act, event or omission, or are attributable to any period of time, that occurs after the earlier of (A) the expiration of the Lease Term with respect to any Leased Property and, if such Leased Property is required to be returned to the Lessor in accordance with the Lease, such return and (B) the discharge in full of the Lessees' obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to any Leased Property and all other 54 amounts due under the Lease, unless such Taxes relate to acts, events or matters occurring prior to the earlier of such times or are imposed on or with respect to any payments due under the Operative Documents after such expiration or discharge; (v) Taxes imposed on a Tax Indemnitee that result from any voluntary sale, assignment, transfer or other disposition or bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of any interest in any Leased Property or any part thereof, or any interest therein or any interest or obligation arising under the Operative Documents, or from any sale, assignment, transfer or other disposition of any interest in such Tax Indemnitee or any related Tax Indemnitee, it being understood that each of the following shall not be considered a voluntary sale: (A) any substitution, replacement or removal of any of the Leased Property by any Lessee, (B) any sale or transfer resulting from the exercise by any Lessee of any termination option, any purchase option or sale option, (C) any sale or transfer while an Event of Default shall have occurred and be continuing under the Lease, and (D) any sale or transfer resulting from the Lessor's exercise of remedies under the Lease; (vi) any Tax which is being contested in accordance with the provisions of Section 7.4(c), during the pendency of such contest; (vii) any Tax that is imposed on a Tax Indemnitee as a result of such Tax Indemnitee's gross negligence or willful misconduct (other than gross negligence or willful misconduct imputed to such Tax Indemnitee solely by reason of its interest in any Leased Property); (viii) any Tax that results from a Tax Indemnitee engaging, with respect to any Leased Property, in transactions unrelated to the Leased Properties or the transactions contemplated by the Operative Documents; (ix) to the extent any interest, penalties or additions to tax result in whole or in part from the failure of a Tax Indemnitee to file a return or pay a Tax that it is required to file or pay in a proper and timely manner, unless such failure (A) results from the transactions contemplated by the Operative Documents in circumstances where a Lessee did not give timely notice to such Tax Indemnitee (and such Tax Indemnitee otherwise had no actual knowledge) of such filing or payment requirement that would have permitted a proper and timely filing of such return or payment of such Tax, as the case may be, or (B) results from the failure of a Lessee to supply information necessary for the proper and timely filing of such return or payment of such Tax, as the case may be, that was not in the possession of such Tax Indemnitee; and 55 (x) any Tax that results from the breach by the Lessor of its representation and warranty made in Section 4.3(g) or the breach of any Lender of its representation and warranty made in Section 4.4(b). (c) Contests. If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (including a written notice of such proceeding) for any Taxes as to which the Lessees may have an indemnity obligation pursuant to Section 7.4, or if any Tax Indemnitee shall determine that any Taxes as to which the Lessees may have an indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee shall promptly notify ChoicePoint. ChoicePoint shall be entitled, at its expense, to participate in, and, to the extent that ChoicePoint desires to, assume and control the defense thereof; provided, however, that ChoicePoint, shall have acknowledged in writing its and each Lessee's obligation to fully indemnify such Tax Indemnitee in respect of such action, suit or proceeding if the contest is unsuccessful; and, provided further, that ChoicePoint shall not be entitled to assume and control the defense of any such action, suit or proceeding (but the Tax Indemnitee shall then contest, at the sole cost and expense of ChoicePoint and the Lessees, on behalf of ChoicePoint with representatives reasonably satisfactory to ChoicePoint or a Lessee) if and to the extent that, (A) in the reasonable opinion of such Tax Indemnitee, such action, suit or proceeding (x) involves any risk of imposition of criminal liability or any material risk of civil liability in excess of $1,000,000 on such Tax Indemnitee or (y) will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Leased Property or any part thereof unless ChoicePoint or a Lessee shall have posted a bond or other security satisfactory to the relevant Tax Indemnitees in respect to such risk, (B) such proceeding involves Claims not fully indemnified by the Lessees which ChoicePoint and the Tax Indemnitee have been unable to sever from the indemnified claim(s), (C) an Event of Default has occurred and is continuing, (D) such action, suit or proceeding involves matters which extend beyond or are unrelated to the Transaction and if determined adversely could be materially detrimental to the interests of such Tax Indemnitee notwithstanding indemnification by the Lessees or (E) such action, suit or proceeding involves the federal or any state income tax liability of the Tax Indemnitee. With respect to any contests controlled by a Tax Indemnitee, (i) if such contest relates to the federal or any state income tax liability of such Tax Indemnitee, such Tax Indemnitee shall be required to conduct such contest only if ChoicePoint shall have provided to such Tax Indemnitee an opinion of independent tax counsel selected by the Tax Indemnitee and reasonably satisfactory to ChoicePoint stating that a reasonable basis exists to contest such claim or (ii) in the case of an appeal of an adverse determination of any contest relating to any Taxes, an opinion of such counsel to the effect that such appeal is more likely than not to be successful, provided, however, such Tax Indemnitee shall in no event be required to appeal an adverse determination to the United States Supreme Court. The Tax Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by ChoicePoint in accordance with the foregoing. 56 Each Tax Indemnitee shall, at ChoicePoint's and the Lessees' expense, supply ChoicePoint with such information and documents in such Tax Indemnitee's possession as are reasonably requested by ChoicePoint and are necessary or advisable for ChoicePoint to participate in any action, suit or proceeding to the extent permitted by this Section 7.4. Unless an Event of Default shall have occurred and be continuing, no Tax Indemnitee shall enter into any settlement or other compromise with respect to any Claim which is entitled to be indemnified under this Section 7.4 without the prior written consent of ChoicePoint, which consent shall not be unreasonably withheld, unless such Tax Indemnitee waives its right to be indemnified under this Section 7.4 with respect to such Claim. Notwithstanding anything contained herein to the contrary, (a) a Tax Indemnitee will not be required to contest) a claim with respect to the imposition of any Tax if such Tax Indemnitee shall waive its right to indemnification under this Section 7.4 with respect to such claim (and any related claim with respect to other taxable years the contest of which is precluded as a result of such waiver) and (b) no Tax Indemnitee shall be required to contest any claim if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely, unless there has been a change in law which in the opinion of Tax Indemnitee's counsel creates substantial authority for the success of such contest. Each Tax Indemnitee and ChoicePoint shall consult in good faith with each other regarding the conduct of such contest controlled by either. (d) Reimbursement for Tax Savings. If (x) a Tax Indemnitee shall obtain a credit or refund of any Taxes paid by ChoicePoint or any Lessee pursuant to this Section 7.4 or (y) by reason of the incurrence or imposition of any Tax for which a Tax Indemnitee is indemnified hereunder or any payment made to or for the account of such Tax Indemnitee by ChoicePoint or any Lessee pursuant to this Section 7.4, such Tax Indemnitee at any time realizes a reduction in any Taxes for which the Lessees are not required to indemnify such Tax Indemnitee pursuant to this Section 7.4, which reduction in Taxes was not taken into account in computing such payment by ChoicePoint or any Lessee to or for the account of such Tax Indemnitee, then such Tax Indemnitee shall promptly pay to ChoicePoint (xx) the amount of such credit or refund, together with the amount of any interest received by such Tax Indemnitee on account of such credit or refund or (yy) an amount equal to such reduction in Taxes, as the case may be; provided that no such payment shall be made so long as an Event of Default shall have occurred and be continuing (but shall be paid promptly after all Events of Default have been cured) and, provided, further, that the amount payable to ChoicePoint by any Tax Indemnitee pursuant to this Section 7.4(d) shall not at any time exceed the aggregate amount of all indemnity payments made by ChoicePoint and the Lessees under this Section 7.4 to such Tax Indemnitee with respect to the Taxes which gave rise to the credit or refund or with respect to the Tax which gave rise to the reduction in Taxes less the amount of all prior payments made to ChoicePoint by such Tax Indemnitee under this Section 7.4(d). Each Tax Indemnitee agrees to act in good faith to claim such refunds and other available Tax benefits, and take such other actions as may be reasonable to minimize any payment due from ChoicePoint or the Lessees pursuant to this Section 7.4. The disallowance or reduction of any credit, refund or other tax savings with respect 57 to which a Tax Indemnitee has made a payment to ChoicePoint and the Lessees under this Section 7.4(d) shall be treated as a Tax for which ChoicePoint and the Lessees are obligated to indemnify such Tax Indemnitee hereunder without regard to Section 7.4(b) hereof. (e) Payments. Any Tax indemnifiable under this Section 7.4 shall be paid by ChoicePoint or a Lessee directly when due to the applicable taxing authority if direct payment is practicable and permitted. If direct payment to the applicable taxing authority is not permitted or is otherwise not made, any amount payable to a Tax Indemnitee pursuant to Section 7.4 shall be paid within thirty (30) days after receipt of a written demand therefor from such Tax Indemnitee accompanied by a written statement describing in reasonable detail the amount so payable, but not before the date that the relevant Taxes are due. Any payments made pursuant to Section 7.4 shall be made to the Tax Indemnitee entitled thereto or ChoicePoint, as the case may be, in immediately available funds at such bank or to such account as specified by the payee in written directions to the payor, or, if no such direction shall have been given, by check of the payor payable to the order of the payee by certified mail, postage prepaid at its address as set forth in this Master Agreement. Upon the request of any Tax Indemnitee with respect to a Tax that ChoicePoint and the Lessees are required to pay, ChoicePoint shall furnish to such Tax Indemnitee the original or a certified copy of a receipt for ChoicePoint's or a Lessee's payment of such Tax or such other evidence of payment as is reasonably acceptable to such Tax Indemnitee. (f) Reports. If ChoicePoint or any Lessee knows of any report, return or statement required to be filed with respect to any Taxes that are subject to indemnification under this Section 7.4, such Lessee shall, if such Lessee is permitted by Applicable Law, timely file such report, return or statement (and, to the extent permitted by law, show ownership of the applicable Leased Property in such Lessee); provided, however, that if such Lessee is not permitted by Applicable Law or does not have access to the information required to file any such report, return or statement, such Lessee will promptly so notify the appropriate Tax Indemnitee, in which case Tax Indemnitee will file such report. In any case in which the Tax Indemnitee will file any such report, return or statement, the related Lessee shall, upon written request of such Tax Indemnitee, prepare such report, return or statement for filing by such Tax Indemnitee or, if such Tax Indemnitee so requests, provide such Tax Indemnitee with such information as is reasonably available to such Lessee. (g) Verification. At ChoicePoint's request, the amount of any indemnity payment by a Lessee or any payment by a Tax Indemnitee to ChoicePoint pursuant to this Section 7.4 shall be verified and certified by an independent public accounting firm selected by ChoicePoint and reasonably acceptable to the Tax Indemnitee. Unless such verification shall disclose an error in ChoicePoint's favor of 5% or more of the related indemnity payment, the costs of such verification shall be borne by ChoicePoint; otherwise, such costs shall be borne by the related Tax Indemnitee. In no event shall ChoicePoint or any Lessee have the right to review the Tax Indemnitee's tax returns or receive any other confidential information from the Tax 58 Indemnitee in connection with such verification. The Tax Indemnitee agrees to cooperate with the independent public accounting firm performing the verification and to supply such firm with all information reasonably necessary to permit it to accomplish such verification, provided that the information provided to such firm by such Tax Indemnitee shall be for its confidential use. The parties agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Master Agreement and that matters of interpretation of this Master Agreement are not within the scope of the independent accounting firm's responsibilities. SECTION 7.5 Increased Costs, etc. (a) Illegality. Notwithstanding any other provision herein, if any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Funding Party to make or maintain LIBOR Advances as contemplated by this Master Agreement, (a) the commitment of such Funding Party hereunder to continue LIBOR Advance as such and convert Funded Amounts to LIBOR Advance shall forthwith be cancelled and (b) such Funding Party's Funded Amounts then outstanding as LIBOR Advance, if any, shall be converted automatically to Base Rate Advances on the respective last days of the then current Rent Periods with respect to such Funded Amounts or within such earlier period as required by law. If any such conversion of a LIBOR Advance occurs on a day which is not the last day of the then current Rent Period with respect thereto, each of ChoicePoint and each Lessee, jointly and severally, shall pay to such Funding Party such amounts, if any, as may be required pursuant to Section 7.5(f). (b) Requirements of Law. In the event that Eurocurrency Reserve Requirements or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Funding Party with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof: (i) shall subject any Funding Party to any tax of any kind whatsoever with respect to this Master Agreement, any Note or any LIBOR Advance made by it, or change the basis of taxation of payments to such Funding Party in respect thereof (except for taxes covered by Section 7.5(d) and changes in franchise taxes or the rate of tax on the overall net income of such Funding Party); (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Funding Party; or (iii) shall impose on such Funding Party any other condition; 59 and the result of any of the foregoing is to increase the cost to such Funding Party, by an amount which such Funding Party deems to be material, of making, converting into, continuing or maintaining LIBOR Advances or to reduce any amount receivable hereunder in respect thereof then, in any such case, each of ChoicePoint and each Lessee, jointly and severally, shall promptly pay such Funding Party, upon its demand, any additional amounts necessary to compensate such Funding Party for such increased cost or reduced amount receivable. If any Funding Party becomes entitled to claim any additional amounts pursuant to this subsection in relation to such outstanding LIBOR Advances, it shall promptly notify ChoicePoint, through the Agent, of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by such Funding Party, through the Agent, to ChoicePoint in good faith and setting forth in reasonable detail the calculation of such amounts shall be conclusive in the absence of manifest error. The provisions of this paragraph (b) shall survive the termination of this Master Agreement and the Lease and the payment of the Notes and all other amounts payable under the Operative Documents. (c) Capital Adequacy. In the event that any Funding Party or corporation controlling such Funding Party shall have determined that any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Funding Party or such corporation with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on such Funding Party's capital as a consequence of its obligations hereunder to a level below that which such Funding Party could have achieved but for such change or compliance (taking into consideration such Funding Party's policies with respect to capital adequacy) by an amount deemed by such Funding Party to be material, then from time to time, after submission by such Funding Party in good faith to ChoicePoint (with a copy to the Agent) of a written request therefor setting forth in reasonable detail the calculation of such amount (which request shall be conclusive in the absence of manifest error), each of ChoicePoint and each Lessee, jointly and severally, shall pay to such Funding Party such additional amount or amounts as will compensate such Funding Party for such reduction to the extent imposed generally on other lessees or borrowers with whom such Funding Party has similar lease or credit arrangements (but in the case of outstanding Base Rate Advances, without duplication of any amounts already covered by such Funding Party by reason of an adjustment in the applicable Base Rate). The provisions of this paragraph (c) shall survive the termination of this Master Agreement and the Lease and the payment of the Notes and all other amounts payable under the Operative Documents. (d) Taxes. Subject to Section 7.5(e), all payments made by a Lessee under the Lease and the other Operative Documents shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding, in the case of the 60 Agent and each Funding Party, net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Agent or such Funding Party, as the case may be, as a result of a present or former connection between the jurisdiction of the government or taxing authority imposing such tax and the Agent or such Funding Party (excluding a connection arising solely from the Agent or such Funding Party having executed, delivered or performed its obligations or received a payment under, or enforced, this Master Agreement or any other Operative Document) or any political subdivision or taxing authority thereof or therein (all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions and withholdings being hereinafter called "Withholding Taxes"). If any Withholding Taxes are required to be withheld from any amounts payable to the Agent or any Funding Party hereunder or under any other Operative Document, the amounts so payable to the Agent or such Funding Party (so long as such Funding Party is in compliance with Section 7.5(e), as appropriate) shall be increased to the extent necessary to yield to the Agent or such Funding Party (after payment of all Withholding Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in the Operative Documents. Whenever any Withholding Taxes are payable by a Lessee, as promptly as possible thereafter such Lessee shall send to the Agent for its own account or for the account of such Funding Party, as the case may be, a certified copy of an original official receipt received by such Lessee showing payment thereof. If a Lessee fails to pay any Withholding Taxes when due to the appropriate taxing authority or fails to remit to the Agent the required receipts or other required documentary evidence, each of ChoicePoint and each Lessee, jointly and severally, shall indemnify the Agent and the Funding Parties for any incremental taxes, interest or penalties that may become payable by the Agent or any Funding Party as a result of any such failure. The agreements in this subsection shall survive the termination of this Master Agreement and the Lease and the payment of the Notes and all other amounts payable under the Operative Documents. (e) Tax Forms. Each Lender to this Master Agreement on the Initial Closing Date that is not incorporated under the laws of the United States of America or a state thereof agrees that, on or prior to the Initial Closing Date, it will deliver to ChoicePoint and the Agent two duly completed copies of (i) United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be, and (ii) an Internal Revenue Service Form W-9 or successor applicable form. Each such Lender also agrees to deliver to ChoicePoint and the Agent two further copies of the said Form W-8BEN or W-8ECI and Form W-9, or successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it to ChoicePoint, and such extensions or renewals thereof as may reasonably be requested by ChoicePoint or the Agent, unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Funding Party from duly completing and delivering any such form with respect to it and such Funding Party so advises ChoicePoint and the Agent. Such Lender shall certify (i) in the case of a Form W-8BEN 61 or W-8ECI, that it is entitled to receive payments under the Operative Documents without deduction or withholding of any United States federal income taxes and (ii) in the case of a Form W-9, that it is entitled to an exemption from United States backup withholding tax. (f) Breakage Costs. Each of ChoicePoint and each Lessee, jointly and severally, agrees to indemnify each Funding Party and to hold each Funding Party harmless from any loss or expense which such Funding Party may sustain or incur as a consequence of (a) default by a Lessee in payment when due of the principal amount of or interest on any LIBOR Advance, (b) default by a Lessee in making a borrowing or conversion after such Lessee or the Construction Agent has given (or is deemed to have given) a notice in accordance with this Master Agreement, (c) default by a Lessee in making any prepayment of LIBOR Advances after such Lessee has given a notice thereof in accordance with the provisions of the Operative Documents or (d) the making of a prepayment, payment or conversion, of LIBOR Advances on a day which is not the last day of a Rent Period with respect thereto, including, without limitation, in each case, any such loss (other than non-receipt of the Applicable Margin or, without duplication, anticipated profits) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate the deposits from which such funds were obtained (it being understood that any such calculation will be made on notional amounts as the Funding Parties are not required to show that they matched deposits specifically). A certificate as to any additional amounts payable pursuant to this subsection submitted by such Funding Party, through the Agent, to ChoicePoint in good faith shall be conclusive in the absence of manifest error. The provisions of this paragraph (f) shall survive the termination of this Master Agreement and the Lease and the payment of the Notes and all other amounts payable under the Operative Documents. (g) Action of Affected Funding Parties. Each Funding Party agrees to use reasonable efforts (including reasonable efforts to change the booking office for its Loans) to avoid or minimize any illegality pursuant to Section 7.5(a) or any amounts which might otherwise be payable pursuant to Section 7.5(c) or (d); provided, however, that such efforts shall not cause the imposition on such Funding Party of any additional costs or legal or regulatory burdens reasonably deemed by such Funding Party to be material and shall not be deemed by such Funding Party to be otherwise contrary to its policies. In the event that such reasonable efforts are insufficient to avoid all such illegality or all amounts that might be payable pursuant to Section 7.5(c) or (d), then such Funding Party (the "Affected Funding Party") shall use its reasonable efforts to transfer to any other Funding Party (which itself is not then an Affected Funding Party) its Loans and Commitment, subject to the provisions of Section 6.2; provided, however, that such transfer shall not be deemed by such Affected Funding Party, in its sole discretion, to be disadvantageous to it or contrary to its policies. In the event that the Affected Funding Party is unable, or otherwise is unwilling, so to transfer its Loans and Commitment, ChoicePoint may designate an alternate lender (reasonably acceptable to the Agent) to purchase the Affected Funding Party's Loans and Commitment, at par and including accrued interest, and, subject to the provisions of Section 6.2, the Affected Funding Party shall transfer its 62 Commitment to such alternate lender and such alternate lender shall become a Funding Party hereunder. Any fee payable to the Agent pursuant to Section 6.2 in connection with such transfer shall be for the account of ChoicePoint and the Lessees. (h) Construction Land Interests. Any amounts payable by the Lessees pursuant to this Section 7.5 with respect to Construction Land Interests during the Construction Term therefor shall be paid with the proceeds of Advances. SECTION 7.6 End of Term Indemnity. In the event that at the end of the Lease Term for the Leased Properties: (i) the related Lessee elects the option set forth in Section 14.6 of the Lease, and (ii) after the Lessor receives the sales proceeds from the Leased Properties under Section 14.6 or 14.7 of the Lease, together with Lessees' payment of the Recourse Deficiency Amount, the Lessor shall not have received the entire Lease Balance, then, within 90 days after the end of the Lease Term, the Lessor or the Agent may obtain, at Lessees' sole cost and expense, a report from the Appraiser (or, if the Appraiser is not available, another appraiser reasonably satisfactory to the Lessor or the Agent, as the case may be, and approved by ChoicePoint, such approval not to be unreasonably withheld) in form and substance reasonably satisfactory to the Lessor and the Agent (the "Report") to establish the reason for any decline in value of the Leased Properties from the Lease Balance. The Lessees, jointly and severally, shall promptly reimburse the Lessor for the amount equal to such decline in value to the extent that the Report indicates that such decline was due to (v) during the time while any property was a Leased Property, extraordinary use, failure to maintain, to repair, to restore, to rebuild or to replace as required by the Operative Documents, failure to comply with all Applicable Laws, failure to use good workmanship with respect to work performed after the Closing Date related to such Leased Property, method of installation or removal or maintenance, repair, rebuilding or replacement, or any other cause or condition within the power of a Lessee to control or effect resulting in the Building failing to be of the type and quality contemplated by the Appraisal (excepting in each case ordinary wear and tear), or (w) any Alteration made to, or any rebuilding of, any Leased Property or any part thereof by any Lessee, or (x) any restoration or rebuilding carried out by any Lessee or any condemnation of any portion of any Leased Property pursuant to Article X of the Lease, or (y) any use of any Leased Property or any part thereof by any Lessee other than as permitted by the Lease, or any act or omission constituting a breach of any requirement, condition, restriction or limitation set forth in the related Deed, related Ground Lease or the related Purchase Agreement, or 63 (z) the existence or compliance with any IDB Documentation. ARTICLE VIII. MISCELLANEOUS SECTION 8.1 Survival of Agreements. The representations, warranties, covenants, indemnities and agreements of the parties provided for in the Operative Documents, and the parties' obligations under any and all thereof, shall survive the execution and delivery of this Master Agreement and any of the Operative Documents, the transfer of any Land to the Lessor as provided herein (and shall not be merged into any Deed), any disposition of any interest of the Lessor in any Leased Property, the purchase and sale of the Note, payment therefor and any disposition thereof and shall be and continue in effect notwithstanding any investigation made by any party hereto or to any of the other Operative Documents and the fact that any such party may waive compliance with any of the other terms, provisions or conditions of any of the Operative Documents. SECTION 8.2 Documentary Conventions. The Documentary Conventions shall apply to this Master Agreement. SECTION 8.3 Expenses. Whether or not the transactions herein contemplated are consummated, each of ChoicePoint and the Lessees, jointly and severally, agrees to pay, as Supplemental Rent, all actual, reasonable and documented out-of-pocket costs and expenses of the Lessor and the Agent in connection with the preparation, execution and delivery of the Operative Documents and the documents and instruments referred to therein and any amendment, waiver or consent relating thereto (including, without limitation, the reasonable fees and disbursements of Mayer, Brown & Platt) and of the Lessor, the Agent and the Lenders in connection with endeavoring to enforce the Operative Documents and the documents and instruments referred to therein (including, without limitation, the reasonable fees actually incurred and disbursements of counsel for the Lessor, the Agent and the Lenders), unless such enforcement action is finally denied by a court on the merits. All references in the Operative Documents to "attorneys' fees" or "reasonable attorneys fees" shall mean reasonable attorneys' fees actually incurred, without regard to any statutory definition thereof. Notwithstanding the foregoing, all such costs and expenses related to the any Construction Land Interest shall be paid with the proceeds of Advances (subject to the conditions set forth in this Master Agreement). SECTION 8.4 Liabilities of the Funding Parties: Sharing of Payments. (a) No Funding Party shall have any obligation to any other Funding Party or to the Guarantor or any Lessee with respect to the transactions contemplated by the Operative Documents except those obligations of such Funding Party expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Funding Party shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth. No Lender shall have any obligation or duty to 64 ChoicePoint or any Lessee, any other Funding Parties or any other Person with respect to the transactions contemplated hereby except to the extent of the obligations and duties expressly set forth in this Master Agreement or the Loan Agreement. (b) If any Funding Party shall obtain any payment (whether voluntary or involuntary, or through the exercise of any right of set-off or otherwise) on account of the Advances made by it in excess of its ratable share of payments on account of the Advances obtained by all the Funding Parties, such Funding Parties shall forthwith purchase from the other Funding Parties such participations in the Advances owed to them as shall be necessary to cause such purchasing Funding Party to share the excess payment ratably with each of them, provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Funding Party, such purchase from each Funding Party shall be rescinded and such Funding Party shall repay to the purchasing Funding Party the purchase price to the extent of such Funding Party's ratable share (according to the proportion of (i) the amount of the participation purchased from such Funding Party as a result of such excess payment to (ii) the total amount of such excess payment) of such recovery together with an amount equal to such Funding Party's ratable share (according to the proportion of (i) the amount of such Funding Party's required repayment to (ii) the total amount so recovered from the purchasing Funding Party) of any interest or other amount paid or payable by the purchasing Funding Party in respect of the total amount so recovered. Each Funding Party agrees that any Funding Party so purchasing a participation from another Funding Party pursuant to this Section 8.4 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Funding Party were the direct creditor of such Funding Party in the amount of such participation. SECTION 8.5 Liabilities of the Agent. The Agent shall have no duty, liability or obligation to any party to this Master Agreement with respect to the transactions contemplated hereby except those duties, liabilities or obligations expressly set forth in this Master Agreement or the Loan Agreement, and any such duty, liability or obligations of the Agent shall be as expressly limited by this Master Agreement or the Loan Agreement, as the case may be. All parties to this Master Agreement acknowledge that the Agent is not, and will not be, performing any due diligence with respect to documents and information received pursuant to this Master Agreement or any other Operative Agreement including, without limitation, any Environmental Audit, Title Policy or survey. The acceptance by the Agent of any such document or information shall not constitute a waiver by any Funding Party of any representation or warranty of ChoicePoint or any Lessee even if such document or information indicates that any such representation or warranty is untrue. SECTION 8.6 Changes in GAAP. In the event that there are any accounting pronouncements after the date hereof affecting the accounting treatment of operating leases as a result of the "special purpose nature" of the lessor, the parties hereto hereby agree to negotiate in good faith such amendments, if any, to the Operative Documents as may be necessary to avoid classification of the Lease as a financing under GAAP as a result of the application of any such accounting pronouncements. 65 IN WITNESS WHEREOF, the parties hereto have caused this Master Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written. CHOICEPOINT INC., as Guarantor and as a Lessee By: /s/ David E. Trine ------------------------------------------- Name Printed: David E. Trine --------------------------------- Title: Treasurer ---------------------------------------- S-1 ATLANTIC FINANCIAL GROUP, LTD., as Lessor By: Atlantic Financial Managers, Inc., its General Partner By: /s/ Stephen Brookshire ------------------------------------------- Name Printed: Stephen Brookshire Title: President S-2 SUNTRUST BANK, as Agent and as a Lender By: /s/ Daniel S. Komitor ------------------------------------------- Name Printed: Daniel S. Komitor --------------------------------- Title: Director ---------------------------------------- S-3 FLEET NATIONAL BANK, as a Lender By: /s/ John B. Desmond ------------------------------------------- Name Printed: John B. Desmond --------------------------------- Title: Director ---------------------------------------- S-4 BNP PARIBAS, as a Lender By: /s/ Mike Shryock ------------------------------------------- Name Printed: Mike Shryock --------------------------------- Title: Vice President ---------------------------------------- By: /s/ Aurora Abella ------------------------------------------- Name Printed: Aurora Abella --------------------------------- Title: Vice President ---------------------------------------- S-5 APPENDIX A to Master Agreement DEFINITIONS, INTERPRETATION AND DOCUMENTARY CONVENTIONS 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, waived, restated 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, waived, restated, 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 Document as a whole and not to any particular Article, Section, paragraph or other provision of such Operative Document; (viii) "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term; (ix) "or" is not exclusive; and (x) relative to the determination of any period of time, "from" means "from and including" and "to" means "to but excluding". B. Accounting Terms. In each Operative Document, unless expressly otherwise provided, accounting terms shall be construed and interpreted, and accounting determinations and computations shall be made, in accordance with GAAP. C. Conflict in Operative Documents. If there is any conflict between any Operative Documents, each such Operative Document shall be interpreted and construed, if possible, so as to avoid or minimize such conflict but, to the extent (and only 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 any 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 with respect to any Leased Property, the principal portion of the related Loans equal to the Recourse Deficiency Amount for such Leased Property. "Acquisition" means any transaction or series of related transactions for the purpose of, or resulting, directly or indirectly, in (a) the acquisition of all or substantially all the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interest, membership interest, or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation of, or any other combination with, another Person (other than a Person that is a Subsidiary). "Additional Amounts" is defined in Section 3.2 of the Construction Agency Agreement. "Additional Insured" means each of the Agent, each Lender and Lessor. "Address" means with respect to any Person, its address set forth in Schedule I hereto or such other address as it shall have identified to the parties to the Master Agreement in writing in the manner provided for the giving of notices thereunder. -2- "Advance" means a LIBOR Advance or a Base Rate Advance. "Affiliate" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common Control with the Person specified. For purposes of this definition, the term "control" (including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "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 an Indemnitee or by 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 recipient of such payment from an Indemnitee 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, a Georgia banking corporation, in its capacity as agent under the Master Agreement and the Loan Agreement. "Alterations" means, with respect to any Leased Property, fixtures, alterations, improvements, modifications and additions to such Leased Property. "Applicable Law" means, each as and to the extent applicable: all laws (including Environmental Laws), rules, regulations (including proposed, temporary and final income tax regulations), statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of any Governmental Authority, judgments, decrees, injunctions, writs, and orders or like action of any -3- 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 wetlands) and those pertaining to the construction, use or occupancy of any Leased Property). "Applicable Margin" shall mean, for any day, (i) with respect to Base Rate Advances, the applicable rate per annum set forth below under the captions "Base Rate Advances," and (ii) with respect to LIBOR Advances, the applicable rate per annum set forth below under the captions "LIBOR Advances," as the case may be, based upon ChoicePoint's ratio of Funded Debt to Consolidated EBITDA, measured quarterly, effective in the first fiscal quarter immediately following the date of delivery of the Compliance Certificate to the Agent:
FUNDED DEBT TO CONSOLIDATED LIBOR BASE RATE EBITDA RATIO ADVANCES ADVANCES - -------------- -------- --------- Greater than or Equal to 3.0:1.0 2.125% 0% Less than 3.0:1.0 and Greater than or Equal to 2.5:1.0 1.5% 0% Less than 2.5:1.0 and Greater than or Equal to 2.0:1.0 1.375% 0% Less than 2.0:1.0 1.0% 0%
For purposes of the foregoing, (i) the Applicable Margin on the initial Closing Date is 1.0% and shall remain 1.0% through and including September 30, 2001 (by way of example, as of the first day of the third fiscal quarter of ChoicePoint, the Applicable Margin shall be calculated based upon the ratio of Funded Debt to Consolidated EBITDA of ChoicePoint reported in the Compliance Certificate delivered by ChoicePoint for the first fiscal quarter of such fiscal year of ChoicePoint); and (ii) if ChoicePoint fails to provide the Compliance Certificate and related financial statements required by Section 5.1 of the Master Agreement within the applicable time period set forth therein, the Applicable Margin shall be adjusted to 2.125% on the first day of the following fiscal quarter until such Compliance Certificate and related financial statements are delivered. "Appraisal" is defined in Section 3.1 of the Master Agreement. "Appraiser" means an MAI appraiser reasonably satisfactory to the Agent. -4- "Architect" means with respect to any Leased Property the architect engaged in connection with the construction of the related Building, if any, who may be an employee of the General Contractor for such Leased Property. "Architect's Agreement" means, with respect to any Leased Property, the architectural services agreement, if any, between the related Lessee and the related Architect. "Asset Securitization" means the $100,000,000 asset securitization program entered into by the Receivables Subsidiaries and Three Pillars Funding Corporation. "Asset Securitization Agreements" means those documents which govern the Asset Securitization. "Assignment of Lease and Rents" means, with respect to any Leased Property, the Assignment of Lease and Rents, dated as of the related Closing Date, from the Lessor to the Agent, substantially in the form of Exhibit B to the Master Agreement. "Authority" means a development or similar authority of any state, county or municipality that is an issuer of Bonds. "Award" means any award or payment received by or payable to the Lessor or a Lessee on account of any Condemnation or Event of Taking (less the actual costs, fees and expenses, including reasonable attorneys' fees, incurred in the collection thereof, for which the Person incurring the same shall be reimbursed from such award or payment). "B Loan" means with respect to any Leased Property, the excess of the principal of the Loans related to such Leased Property over the Recourse Deficiency Amount for such Leased Property. "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended. "Base Rate" means (with any change in the Base Rate to be effective as of the date of change of either of the following rates) the higher of (i) the rate which the Agent publicly announces from time to time as its prime lending rate, as in effect from time to time, and (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%) per annum. The Agent's prime lending rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to customers; the Agent may make commercial loans or other loans at rates of interest at, above or below the Agent's prime lending rate. The Base Rate is determined daily. "Base Rate Advance" means that portion of the Funded Amount bearing interest at the Base Rate. -5- "Base Lease Term" means, with respect to any Leased Property, (a) the period commencing on the Completion Date for such Leased Property (or the Closing Date, if such Leased Property is not a Construction Land Interest) and ending on August 29, 2007 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. "Bonds" means industrial revenue or development bonds issued by a state, county or municipal authority in connection with any Leased Property. "Building" means, with respect to any Leased Property, (i) the buildings, structures and improvements located or to be located on the related Land, along with all fixtures used or useful in connection with the operation of such Leased Property, including 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, (ii) all equipment and other personal property financed by the Lessor and/or the Lenders and (iii) all Alterations (including all restorations, repairs, replacements and rebuilding of such buildings, improvements and structures) thereto (but in each case excluding trade fixtures unless financed by the Lessor and/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 and, if the applicable Business Day relates to a LIBOR Advance, on which trading is not carried on by and between banks in the London interbank market. "Capital Lease" shall mean, as applied to any Person, any lease of any asset by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person. "Capital Stock" means, with respect to any Person, all capital stock of such Person, whether voting or nonvoting, including common stock and preferred stock of such Person. "Casualty" means an event of damage or casualty relating to all or part of any Leased Property that does not constitute an Event of Loss. "CDB/Infotek" means ChoicePoint Public Records, Inc., a California corporation. -6- "Change in Control Provision" means any term or provision contained in any indenture, debenture, note, or other agreement or document evidencing or governing Indebtedness of ChoicePoint evidencing debt or a commitment to extend loans in excess of $5,000,000 which requires, or permits the holder(s) of such Indebtedness of ChoicePoint to require that such Indebtedness of ChoicePoint be redeemed, repurchased, defeased, prepaid or repaid, either in whole or in part, or the maturity of such Indebtedness of ChoicePoint to be accelerated in any respect, as a result of a change in ownership of the Capital Stock of ChoicePoint or voting rights with respect thereto. "ChoicePoint" means ChoicePoint Inc., a Georgia corporation. "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, with respect to each parcel of Land, the date on which such Land is acquired by the Lessor pursuant to a Purchase Agreement or such Land is leased to the Lessor pursuant to a Ground Lease and the initial Funding occurs with respect to such Land under the Master Agreement. "Code" or "Tax Code" means the Internal Revenue Code of 1986, as amended from time to time and any successor statute. "Commitment" means as to each Funding Party, its obligation to make Fundings as investments in each 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 represented 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). "Completion Date" with respect to any Leased Property that is a Construction Land Interest means the Business Day on which the conditions specified in Section 3.5 of the Master Agreement have been satisfied or waived with respect to such Leased Property. "Condemnation" means any condemnation, requisition, confiscation, seizure, permanent use or other taking or sale of the use, occupancy or title to any Leased Property or any part -7- 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 is prevented or occupancy or title is taken. "Consolidated Companies" means, collectively, ChoicePoint and all of its Subsidiaries, other than the Receivables Subsidiaries. "Consolidated EBIT" means, for any fiscal period of ChoicePoint, an amount equal to (A) the sum for such fiscal period of Consolidated Net Income (Loss) and, to the extent deducted in determining such Consolidated Net Income (Loss), provisions for (i) taxes based on income and (ii) Consolidated Interest Expense, minus (B) any items of gain (or plus any items of loss) which were included in determining such Consolidated Net Income (Loss) and were (x) not realized in the ordinary course of business (whether or not classified as "ordinary" by GAAP), (y) the result of any sale of assets, or (z) resulting from minority investments, together in the case of (x), (y) or (z), any related provision for taxes included in Consolidated Net Income (Loss) with respect thereto, plus (C) non-recurring non-cash charges, including without limitation, accruals related to any acquisition and earnouts incurred in connection with any acquisition to the extent not paid in cash. "Consolidated EBITDA" means, for any four fiscal-quarter period of ChoicePoint, an amount equal to the sum of (A) Consolidated EBIT plus (B) depreciation and amortization expense to the extent deducted in determining Consolidated Net Income (Loss), plus (C) without duplication, the sum of the following items to the extent not included in Consolidated EBITDA for such period: (1) the net income (or net loss) for such four fiscal quarter period of any Person which became a Subsidiary during such period (a "New Subsidiary"); (2) the net income (or net loss) derived during such four fiscal quarter period from any assets acquired by any Consolidated Company during such period ("New Assets"); (3) the sum of (x) taxes based on income, (y) Consolidated Interest Expense and (z) depreciation and amortization expense, in each case to the extent deducted in determining net income of any New Subsidiary or derived from any New Assets during such four fiscal quarter period, minus any items of gain (or plus any items of loss) which were included in determining such net income and were (aa) not realized in the ordinary course of business (whether or not classified as "ordinary" by GAAP), (bb) the result of any sale of assets, or (cc) resulting from minority investments, together in the -8- case of (aa), (bb) or (cc), any related provision for taxes included in such net income with respect thereto; and (4) non-recurring non-cash charges of any New Subsidiary or derived from any New Assets during such four fiscal quarter period, including without limitation, accruals related to any acquisition and earnouts incurred in connection with any acquisition to the extent not paid in cash. "Consolidated EBITR" means, for any fiscal period of ChoicePoint, an amount equal to the sum of Consolidated EBIT plus Consolidated Rental Expense for such period. "Consolidated Fixed Charges" means, for any fiscal period of ChoicePoint, the sum of (A) Consolidated Interest Expense, plus (B) Consolidated Rental Expense, plus (C) dividends and distributions on Capital Stock paid in cash during such fiscal period by ChoicePoint, any other Consolidated Company or any Receivables Subsidiary, but excluding the one-time dividend paid by ChoicePoint to Equifax as of the Spin-Off Date and any repurchases of Capital Stock of ChoicePoint. "Consolidated Interest Expense" means, for any fiscal period of ChoicePoint, total interest expense of the Consolidated Companies and the Receivables Subsidiaries (including without limitation, interest expense attributable to capitalized leases in accordance with GAAP, all commissions, discounts and other fees and charges owed with respect to bankers acceptance financing, and total interest expense (whether shown as interest expense or as loss and expenses on sale of receivables) under a receivables purchase facility) determined on a consolidated basis in accordance with GAAP. "Consolidated Net Income (Loss)" means, for any fiscal period of ChoicePoint, the net income (or loss) of the Consolidated Companies or any Receivables Subsidiary for such period (taken as a single accounting period), but excluding therefrom (to the extent otherwise included therein) the income of any Consolidated Company or any Receivables Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Consolidated Company or Receivables Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation; provided that the foregoing exclusion shall not apply to CDB/Infotek so long as there is at least $1 of outstanding intercompany debt owed by CDB/Infotek to another Consolidated Company. "Consolidated Net Worth" means, as of any date of determination, shareholders' equity of ChoicePoint, determined on a consolidated basis in conformity with GAAP. "Consolidated Rental Expense" means, for any fiscal period of ChoicePoint, the operating lease expense of the Consolidated Companies and the Receivables Subsidiaries determined in -9- accordance with GAAP for leases with an initial term greater than one year, as disclosed in the notes to ChoicePoint's consolidated financial statements of the Consolidated Companies or as disclosed in the notes to any Receivable Subsidiary's financial statements, determined on a consolidated basis in accordance with GAAP. "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 ChoicePoint in its consolidated financial statements as of such date. "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 ChoicePoint are treated as a single employer under Section 414 of the Code. "Construction" means, with respect to any Leased Property, the construction of the related Building pursuant to the related Plans and Specifications. "Construction Agency Agreement" means the Construction Agency Agreement, dated as of August 29, 2001, between ChoicePoint and the Lessor. "Construction Agent" means ChoicePoint in its capacity as construction agent pursuant to the Construction Agency Agreement. "Construction Budget" is defined in Section 2.4 of the Construction Agency Agreement. "Construction Conditions" means the conditions set forth in Section 3.5 of the Master Agreement. "Construction Contract" means, with respect to any Leased Property, that certain construction contract, if any, between the related Lessee or the Construction Agent and a General Contractor for the Construction of the related Building, which contract shall be assigned to the Lessor, and such assignment shall be consented to by such General Contractor, pursuant to an assignment of such construction contract substantially in the form of the Security Agreement and Assignment set forth as Exhibit D to the Master Agreement. "Construction Costs" means, with respect to any Leased Property, all costs of acquisition or ground lease, as applicable, of the related Land, all closing, development and transaction costs related thereto, including fees, costs and expenses of attorneys, architects, surveyors, engineers, title and other insurance companies, appraisers and environmental firms, all costs of Construction, and all interest and Yield accrued on the Funded Amounts related to such Leased Property during the Construction Term therefor. -10- "Construction Failure Event" is defined in Section 5.1 of the Construction Agency Agreement. "Construction Failure Payment" means, with respect to any Leased Property and as of any date of calculation, an amount equal to (i) 100% of the related Raw Land Cost, plus (ii) the excess of (A) 89.9% of the Project Costs (exclusive of Raw Land Cost) incurred as of the date of calculation, minus (B) the sum of (1) Force Majeure Losses incurred with respect to such Leased Property during the Construction Term, and (2) the Present Value of any payments (other than Unrestricted Indemnification Amounts) payable by the Construction Agent under the Operative Documents that the Construction Agent is legally required to pay as of the date of calculation (provided that such payments shall not include any amounts that are payable by the Construction Agent that require the approval or consent but have not been approved or consented to by the Agent in accordance with Section 3.4 of the Construction Agency Agreement) that have not been reimbursed as of the date of calculation. "Construction Force Majeure Declaration" is defined in Section 3.4 of the Construction Agency Agreement. "Construction Force Majeure Event" means, with respect to any Leased Property: (a) a flood, earthquake, hurricane, cyclone, tornado or other act of God arising after the related Closing Date, or (b) any change in any state or local law, regulation or other legal requirement arising after such Closing Date and relating to the use of the Land or the construction of a building on the Land, or (c) strikes, lockouts, labor troubles, unavailability of materials (including delays in delivery), riots, civil unrest, insurrections or other causes beyond a Lessee's control which causes damage to the Leased Property or which prevents the Construction Agent from completing the Construction prior to the Scheduled Construction Termination Date and which could not have been avoided or which cannot be remedied by the Construction Agent through the exercise of all commercially reasonable efforts or the expenditure of funds and, in the case of (b) above, the existence or potentiality of which was not known to and could not have been discovered prior to such Closing Date through the exercise of reasonable due diligence by the Construction Agent. "Construction Land Interest" means each parcel of Land on which the related Lessee intends to build a Building and for which the Completion Date has not yet occurred. -11- "Construction Term" means, with respect to any Leased Property, the period commencing on the related Closing Date and ending on the related Construction Term Expiration Date, or such shorter period as may result from earlier termination of the Lease as provided therein. "Construction Term Expiration Date" means, with respect to any Leased Property, the earliest of the following: (a) the related Completion Date, (b) the date on which the aggregate Funded Amounts equal the Commitments, and (c) the related Scheduled Construction Termination Date. "Contractual Obligation", as applied to any Person, means any provision of any Securities issued by that Person or any indenture, mortgage, deed of trust, contract, undertaking, agreement, instrument or other document to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject (including, without limitation, any restrictive covenant affecting any of the properties of such Person). "Credit Agreement" means the Revolving Credit Agreement, dated as of August 5, 1997, among ChoicePoint, the lenders listed therein, Wachovia Bank, N.A., as administrative agent, and SunTrust Bank, as documentation agent. "Deed" means, with respect to any Land, a general warranty deed (or, if the related Title Policy is acceptable to the related Lessee and the Agent, a special or limited warranty deed, provided that unless consented to by the related Lessee, the Lessor and the Agent, such deed is not the equivalent of a quit-claim deed in the applicable jurisdiction), dated on or before the applicable Closing Date, from the applicable Seller to the Lessor, conveying such Land. "Default" means an Event of Default or a Potential Event of Default. "Documentary Conventions" means the provisions set forth in Paragraph F of this Appendix A. "EITF 97-10" means FASB Emerging Issues Task Force Issue No. 97-10. "Engineer" means, with respect to any Leased Property, the engineer engaged in connection with the construction of the related Building, if any, who may be an employee of the General Contractor for such Leased Property. -12- "Engineer's Agreement" means, with respect to any Leased Property the engineering services agreement, if any, between the Construction Agent, in its capacity as agent for Lessor, and the related Engineer. "Environmental Audit" means, with respect to each parcel of Land, a Phase I Environmental Assessment and, if recommended in such Phase I Environmental Assessment, a Phase II Environmental Assessment, dated no more than six months prior to the related Closing Date, by an environmental services firm satisfactory to the Agent. "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 ChoicePoint 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. ss. 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. ss. 9601-9657, (CERCLA), the Hazardous Materials Transportation Act of 1975, 49 U.S.C. ss. 1801-1812, the Toxic Substances Control Act, 15 U.S.C. ss. 2601-2671, the Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss. 136 et seq., and all similar federal, state and 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 any 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. -13- "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 Laws. "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. "Equifax" means Equifax Inc., a Georgia corporation. "Equipment" means, with respect to any Leased Property, that portion of the Building related to such Leased Property that constitutes personal property for sales tax purposes of the applicable jurisdiction. "Existing Lease" means the Lease Agreement, dated as of July 31, 1997, between SunTrust Banks, Inc. and ChoicePoint. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statute. "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. "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. "Fair Market Sales Value" means, with respect to any Leased Property or any portion thereof, the fair market sales value as determined by an independent appraiser chosen by the -14- Agent, and, unless an Event of Default has occurred, reasonably acceptable to the related Lessee, 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 the related Lessee, for the purchase of such Leased Property, without deduction of any costs or expenses of dismantling and relocating any equipment that constitutes a part of such Leased Property. Such fair market sales value shall be calculated as the value for such Leased Property, assuming, in the determination of such fair market sales value, that such 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). "Federal Funds Rate" means for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent. "Fee Percentage" shall mean, for any day, the applicable rate per annum set forth below based upon ChoicePoint's ratio of Funded Debt to Consolidated EBITDA, measured quarterly, effective in the first fiscal quarter immediately following the date of delivery of the Compliance Certificate to the Agent:
Funded Debt to Consolidated EBITDA Ratio Fee Percentage --------------------------- -------------- Greater than or Equal to 3.0:1.0 0.30% Less than 3.0:1.0 and Greater than or Equal to 2.5:1.0 0.30% Less than 2.5:1.0 and Greater than or Equal to 2.0:1.0 0.25% Less than 2.0:1.0 0.20%
-15- For purposes of the foregoing, (i) the Fee Percentage on the initial Closing Date is 0.20% and shall remain 0.20% through and including September 30, 2001 (by way of example, as of the first day of the third fiscal quarter of ChoicePoint, the Fee Percentage shall be calculated based upon the ratio of Funded Debt to Consolidated EBITDA of ChoicePoint reported in the Compliance Certificate delivered by ChoicePoint for the first fiscal quarter of such fiscal year of ChoicePoint); and (ii) if ChoicePoint fails to provide the Compliance Certificate and related financial statements required by Section 5.1 of the Master Agreement within the applicable time period set forth therein, the Fee Percentage shall be adjusted to 0.30% on the first day of the following fiscal quarter until such Compliance Certificate and related financial statements are delivered. "Final Rent Payment Date" with respect to any Leased Property is defined in Section 13.1(e) of the Lease. "Fiscal Quarter" means any fiscal quarter of ChoicePoint. "Fiscal Year" means any fiscal year of ChoicePoint. "Fixed Charge Coverage Ratio" means, as of the last day of any fiscal quarter of ChoicePoint, the ratio of (A) Consolidated EBITR to (B) Consolidated Fixed Charges, in each case calculated with respect to the immediately preceding four fiscal quarters ending on such date. "Force Majeure Losses" means, with respect to any Leased Property and as of any date of calculation, the loss incurred by the Lessor in connection with a Construction Force Majeure Event with respect to which a Construction Force Majeure Declaration has been made, measured by the sum of (i) the lower of (A) the insurance proceeds paid with respect thereto plus the related deductible amount and (B) the reduction in Fair Market Sales Value of the Leased Property as a result of the Construction Force Majeure Event as set forth in an Appraisal, plus (ii) other direct costs incurred by the Lessor or by the Construction Agent that the Lessor has consented to in accordance with Section 3.4 of the Construction Agency Agreement in connection with such Construction Force Majeure Event to the extent such costs are not covered by insurance; provided that insurance proceeds shall be used in such calculation only to the extent the event giving rise to the loss can be remediated for an amount equal to the resulting insurance proceeds plus the deductible; provided, further, that it is expressly understood and agreed that Force Majeure Losses shall not include the costs of repairing damage occasioned not as a result of the Construction Force Majeure Event, but as a result of the Construction Agent's failure to take all reasonable steps to minimize the damages caused by such Construction Force Majeure Event. "Foreign Plan" means any pension, profit sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any Foreign Subsidiary which, -16- under applicable local law, is required to be funded through a trust or other funding vehicle, but shall not include any benefit provided by a foreign government or its agencies. "Foreign Subsidiary" means each Consolidated Company that is organized under the laws of a jurisdiction other than the United States of America or any State thereof. "Funded Amount" means, as to the Lessor, the Lessor's Invested Amounts, and, as to each Lender, the outstanding principal amount of such Lender's Loans. "Funded Debt" means all Indebtedness for money borrowed, Indebtedness evidenced or secured by purchase money Liens, capitalized leases, outstandings under asset securitization vehicles, conditional sales contracts and similar title retention debt instruments, including any current maturities of the foregoing, which by its terms matures more than one year from the date of any calculation thereof or which is renewable or extendable at the option of the obligor to a date beyond one year from such date. The calculation of Funded Debt shall include (i) all Funded Debt of the Consolidated Companies and the Receivables Subsidiaries, plus (ii) all Funded Debt of other Persons to the extent guaranteed by a Consolidated Company or a Receivables Subsidiary, to the extent supported by a letter of credit issued for the account of a Consolidated Company or a Receivables Subsidiary, or as to which and to the extent which a Consolidated Company or a Receivables Subsidiary or their respective assets otherwise have become liable for payment thereof, plus (iii) the redemption amount with respect to the stock of ChoicePoint required to be redeemed during the next succeeding twelve months at the option of the holder or its Subsidiaries. Notwithstanding the foregoing, "Funded Debt" shall exclude the Operative Documents and all operating lease obligations except that (A) as of the earlier of (i) September 30, 2002 and (ii) the effective date of any revolving credit agreement entered into in replacement of the Credit Agreement, "Funded Debt" shall include the principal or invested amount of all synthetic leases pursuant to which any Consolidated Company is the lessee and (B) for purposes of calculating the Funded Debt to Consolidated EBITDA Ratio for the calculation of Applicable Margin and Fee Percentage, "Funded Debt" shall only include the principal or invested amount of all synthetic leases entered into by any Consolidated Company after the date of the Master Agreement. "Funding" means any funding by the Funding Parties pursuant to Section 2.2 of the Master Agreement. "Funding Date" means each Closing Date and each other date on which a Funding occurs under Section 2 of the Master Agreement. "Funding Parties" means the Lessor and the Lenders, collectively. "Funding Party Balance" means, with respect to any Leased Property, (i) for the Lessor as of any date of determination, an amount equal to the sum of the outstanding related Lessor's -17- 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 Lessees under the Operative Documents, and (ii) for each Lender as of any date of determination, an amount equal to the sum of the outstanding principal of such Lender's related Loans, all accrued and unpaid interest thereon, all unpaid related fees owing to such Lender under the Operative Documents, and all other related amounts owing to such Lender by the Lessees under the Operative Documents. "Funding Request" is defined in Section 2.2 of the Master Agreement. "Funding Termination Date" means the earliest of (i) April 31, 2003, subject to the occurrence of a Construction Force Majeure Event, and (ii) the termination of the Commitments pursuant to Section 5.2 of the Loan Agreement. "Future Value" means, with respect to any component of the Recourse Deficiency Percentage, the accreted value of such component as of the end of the Base Lease Term, that is giving effect to the time value of money using the Implicit Rate. "GAAP" shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination. "General Contractor" with respect to any Leased Property means the general contractor therefor selected by the Construction Agent. "General Partner" means Atlantic Financial Managers, Inc., a Texas corporation. "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 citations, environmental and operating permits and licenses that are required for the use, occupancy, zoning and operation of any Leased Property. "Governmental Authority" shall include the country, the state, county, city and political subdivisions in which any Person or such Person's Property is located or which exercises valid jurisdiction over any such Person or such Person's Property, and any court, agency, department, commission, board, bureau or instrumentality of any of them, including monetary authorities which exercises valid jurisdiction over any such Person or such Person's Property. Unless -18- otherwise specified, all references to Governmental Authority herein shall mean a Governmental Authority having jurisdiction over, where applicable, ChoicePoint, the Subsidiaries or any of their Property or the Agent or any Funding Party. "Governmental Requirement" shall mean any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement, including Environmental Laws and occupational, safety and health standards or controls, of any Governmental Authority. "Ground Lease" means, with respect to any Land, the ground lease between the related Ground Lessor and the Lessor pursuant to which a leasehold estate is conveyed in the Land to the Lessor. "Ground Lessor" means, as to any Land, the ground lessor of such Land. "Guarantor" means ChoicePoint, in its capacity as guarantor under the Guaranty Agreement. "Guaranty" shall mean any contractual obligation, contingent or otherwise, of a Person with respect to any Indebtedness or other obligation or liability of another Person, including without limitation, any such Indebtedness, obligation or liability directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable, including contractual obligations (contingent or otherwise) arising through any agreement to purchase, repurchase, or otherwise acquire such Indebtedness, obligation or liability or any security therefor, or any agreement to provide funds for the payment or discharge thereof (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, or other financial condition, or to make any payment other than for value received. The amount of any Guaranty shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which guaranty is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. "Guaranty Agreement" means the Guaranty, dated as of August 29, 2001 by the Guarantor in favor of the Funding Parties. "Hazardous Material" means any substance, waste or material which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, including petroleum, crude oil or any fraction thereof, petroleum derivatives, by products and other hydrocarbons, or which is or becomes regulated under any Environmental Law by any Governmental Authority, including any agency, department, commission, board or instrumentality of the United States, any jurisdiction in which a Leased Property is located or any -19- political subdivision thereof and also including, without limitation, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs") and radon gas. "IDB Documentation" means the Bonds, each IDB Lease and all other agreements, documents, contracts and instruments entered into in connection with any Bonds or IDB Property. "IDB Property" means each Leased Property that is the subject of Bonds. "IDB Lease" means a lease between the Lessor and an Authority with respect to a Leased Property. "Implicit Rate" means the weighted average of the Lessor Rate and the rate at which interest on the Lenders' Loans is capitalized, each as in effect on the date of calculation based on the outstanding Funded Amounts. "Indebtedness" of any Person means, without duplication (i) all obligations of such Person which in accordance with GAAP would be shown on the balance sheet of such Person as a liability (including, without limitation, obligations for borrowed money and for the deferred purchase price of property or services, and obligations evidenced by bonds, debentures, notes or other similar instruments); (ii) all rental obligations under leases required to be capitalized under GAAP; (iii) all Guaranties of such Person (including contingent reimbursement obligations under undrawn letters of credit); (iv) Indebtedness of others secured by any Lien upon property owned by such Person, whether or not assumed; and (v) obligations or other liabilities under currency contracts, interest rate hedging contracts, or similar agreements or combinations thereof to the extent required to be disclosed in such Person's financial statements in accordance with GAAP. "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 any Lessee or the Guarantor be an Indemnitee. "Initial Closing Date" means the Closing Date for the first Leased Property acquired by the Lessor. "Investment" means, when used with respect to any Person, any direct or indirect advance, loan or other extension of credit (other than the creation of receivables in the ordinary course of business) or capital contribution by such Person (by means of transfers of property to others or payments for property or services for the account or use of others, or otherwise) to any Person, or any direct or indirect purchase or other acquisition by such Person of, or of a beneficial interest in, Capital Stock, partnership interests, bonds, notes, debentures or other securities issued by any other Person. Each Investment shall be valued as of the date made; -20- provided that any Investment or portion of an Investment consisting of Indebtedness shall be valued at the outstanding principal balance thereof as of the date of determination. "Joinder Agreement" means an agreement substantially in the form of Exhibit E to the Master Agreement pursuant to which a Subsidiary of ChoicePoint shall become a Lessee. "Land" means the land described in Appendix B to the related Lease Supplement. "Lease" means the Master Lease Agreement, dated as of August 29, 2001, among the Lessees and the Lessor, together with each Lease Supplement. "Lease Balance" means, with respect to all of the Leased Properties, as of any date of determination, an amount equal to the aggregate sum of the outstanding Funded Amounts of all Funding Parties (including all Additional Amounts), all accrued and unpaid interest on the Loans (including interest on Additional Amounts funded by the Lenders), all accrued and unpaid Yield on the Lessor's Invested Amounts (including Yield on Additional Amounts funded by Lessor), all unpaid fees owing to the Funding Parties under the Operative Documents, and all other amounts owing to the Funding Parties by any Lessee under the Operative Documents. "Lease Supplement" is defined in Section 2.2 of the Lease. "Lease Term" with respect to any (i) Leased Property that is a Construction Land Interest, means the period from the Closing Date for such Leased Property to the Completion Date for such Leased Property (or such shorter period as may result from earlier termination of the Lease as provided therein) plus the Base Lease Term therefor and (ii) any other Leased Property, the Base Lease Term therefor. "Lease Termination Date" means the last day of the Lease Term. "Leased Property" means Land and the related Building(s). For purposes of the Lease, "Leased Property" means the Land identified in a Lease Supplement to the Lease and the Buildings related thereto, unless the context provides otherwise. "Leased Property Balance" means, with respect to any Leased Property, as of any date of determination, an amount equal to the aggregate sum of the outstanding related Funded Amounts (including all Additional Amounts related to such Leased Property) of all Funding Parties, all accrued and unpaid interest on the related Loans (including interest on Additional Amounts related to such Leased Property funded by the Lenders), all accrued and unpaid Yield on the related Lessor's Invested Amounts (including Yield on Additional Amounts related to such Leased Property funded by Lessor), all related unpaid fees owing to the Funding Parties under the Operative Documents, and all other amounts owing to the Funding Parties by the related Lessee under the Operative Documents. -21- "Lender Basic Rent" means, for any Rent Period under the Lease, the aggregate amount of interest accrued on the Loans pursuant to Section 2.4 of the Loan Agreement during such Rent Period, provided that Lender Basic Rent shall not include any Additional Amounts or any interest accrued on any Loans that constitute Additional Amounts. "Lenders" means such financial institutions as are, or who may, as permitted by Section 6.2(b) of the Master Agreement, hereafter become, parties to the Loan Agreement as lenders to the Lessor. "Lending Office" for each Lender means the office such Lender designates in writing from time to time to ChoicePoint and the Agent. "Lessee" is defined in the preamble to the Master Agreement. The "related" Lessee with respect to any Leased Property means the Lessee that is a party to the Lease Supplement for such Leased Property or that is leasing such Leased Property, as the case may be. "Lessor" is defined in the preamble to the Master Agreement. "Lessor Basic Rent" means, for any Rent Period, the aggregate amount of Yield accrued and unpaid on the Lessor's Invested Amounts under Section 2.3(a) of the Master Agreement during such Rent Period, provided that Lessor Basic Rent shall not include any Additional Amounts or any Yield on any of the Lessor's Invested Amounts that constitute Additional Amounts. "Lessor Liens" means Liens on or against any 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, or any Person claiming through the Lessor unrelated to the transactions contemplated by the Operative Documents or from Lessor's failure to perform as required under the Operative Documents or (b) which result from any Tax owed by the Lessor, or any Person claiming through the Lessor, except any Tax for which a Lessee is obligated to indemnify (including, without limitation, in the foregoing exception, any assessments with respect to any Leased Property noted on the related Title Policy or assessed in connection with any construction or development by a Lessee or the Construction Agent). "Lessor Rate" is defined in the Lessor Side Letter. "Lessor Side Letter" means the letter agreement, dated as of August 29, 2001, between ChoicePoint and the Lessor. "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, as such amount may be -22- increased during the related Construction Term pursuant to Section 2.3(c) of the Master Agreement. "LIBOR" means, for any Rent Period, with respect to LIBOR Advances the offered rate for deposits in U.S. Dollars, for a period comparable to the Rent Period and in an amount comparable to such Advances, appearing on the Telerate Screen Page 3750 as of 11:00 A.M. (London, England time) on the day that is two London Business Days prior to the first day of the Rent Period. If two or more of such rates appear on the Telerate Screen Page 3750, the rate for that Rent Period shall be the arithmetic mean of such rates. If the foregoing rate is unavailable from the Telerate Screen for any reason, then such rate shall be determined by the Agent from the Reuters Screen LIBO Page or, if such rate is also unavailable on such service, then on any other interest rate reporting service of recognized standing designated in writing by the Agent to ChoicePoint and the other Lenders; in any such case rounded, if necessary, to the next higher 1/100 of 1.0%, if the rate is not such a multiple. "LIBOR Advance" means that portion of the Funded Amount bearing interest at a rate based on LIBOR. "Lien" shall mean any mortgage, pledge, security interest, lien, charge, hypothecation, assignment, deposit arrangement, title retention, preferential right, trust or other arrangement having the practical effect of the foregoing and shall include the interest of a vendor or lessor under any conditional sale agreement, capitalized lease or other title retention agreement. "Limited Event of Default" means an Event of Default under (1) paragraph (1) of Article XII of the Lease if such event occurs as a result of a hostile takeover or (2) paragraph (e), (j), or (p) of Article XII of the Lease, solely if the breach of the related covenant, representation or warranty was based on a subjective interpretation of the term "diligently," "Material Adverse Effect," "material" or "diligently." "Loan" shall have the meaning specified in Section 2.1 of the Loan Agreement. "Loan Agreement" means the Loan Agreement, dated as of August 29, 2001, among the Lessor, the Agent and the Lenders. "Loan Documents" means the Loan Agreement, the Note, the Assignments of Lease and Rents, the Mortgages 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. -23- "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. "Loss Proceeds" is defined in Section 10.6 of the Lease. "Margin Regulations" means Regulations T, U and X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time. "Margin Stock" shall have the meaning set forth in Regulation U of the Board of Governors of the Federal Reserve System as the same may be amended or interpreted from time to time. "Master Agreement" means the Master Agreement, dated as of August 29, 2001, among the Guarantor, the Lessees, the Lessor, the Agent and the Lenders. "Material Adverse Effect" means a material adverse effect on (a) the business, assets, operations or condition, financial or otherwise, of the Guarantor, (b) the ability of the Guarantor, ChoicePoint or any Lessee to perform any of its respective obligations under the Operative Documents to which it is a party, (c) the rights of or benefits available to the Funding Parties under the Operative Documents, (d) the value, utility or useful life of any Leased Property or (e) the priority, perfection or status of the Agent's or any Funding Party's interest in any Leased Property or in the Lease, the Guaranty or the Construction Agency Agreement. "Material Subsidiary" means each Subsidiary of ChoicePoint (other than the Receivables Subsidiaries), now existing or hereafter established or acquired, that at any time prior to the Lease Termination Date (i) has or acquires assets which constitute fifteen percent (15%) or more of the Total Assets or (ii) accounts for or produces fifteen percent (15%) or more of Consolidated EBITDA during the most recently completed fiscal year of ChoicePoint. "Moody's" means Moody's Investors Service, Inc. "Mortgage" means, with respect to any Leased Property, that certain mortgage, deed of trust or security deed, dated as of the related Closing Date, by the Lessor to the Agent, substantially in the form of Exhibit D-1 or D-2, as applicable, 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. "Note" means the 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. -24- "Obligations" means all indebtedness (whether principal, interest, fees or otherwise), obligations and liabilities of the Guarantor and each Lessee to the Funding Parties (including without limitation all extensions, renewals, modifications, rearrangements, restructures, replacements and refinancings thereof, whether or not the same involve modifications to interest rates or other payment terms of such indebtedness, obligations and liabilities), whether arising under any of the Operative Documents or otherwise, and whether now existing or hereafter created, absolute or contingent, direct or indirect, joint or several, secured or unsecured, due or not due, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise, or acquired by Funding Parties outright, conditionally or as collateral security from another, including but not limited to the obligation of the Guarantor and each Lessee to repay future advances by the Funding Parties, whether or not made pursuant to commitment and whether or not presently contemplated by the Guarantor or any Lessee and the Funding Parties under the Operative Documents. "Obligor" means each Lessee, the Construction Agent and the Guarantor. "Officer's Certificate" of a Person means a certificate signed by the Chairman of the Board, the President, any Vice President, any Executive Vice President, any Senior Vice President, any Administrative Vice President, the Treasurer, any Assistant Treasurer, the Controller or the Secretary of such Person, signing alone. "Operative Documents" means the Master Agreement, the Guaranty Agreement, the Purchase Agreements, the Deeds, the Lease, each Security Agreement and Assignment, the Loan Agreement, the Assignments of Lease and Rents, the Mortgages, the Note, the Ground Leases, the Joinder Agreements, the IDB Documentation, the Construction Agency Agreement, and the other documents delivered in connection with the transactions contemplated by the Master Agreement, in each case if such document has been executed and delivered by the parties thereto as of the date of determination. "Overdue Rate" means the lesser of (a) the highest interest rate permitted by Applicable Law and (b) an interest rate per annum (calculated on the basis of a 365-day (or 366-day, if appropriate) year equal to 2.0% above the Base Rate in effect from time to time or, in the case of Yield, 2% above the Lessor Rate. "Partial Purchase Option" is defined in Section 14.1(b) of the Lease. "Partnership Agreement" means the Agreement of Limited Partnership of Atlantic Financial Group, Ltd., dated as of February 28, 1996, among the General Partner and the persons listed on Schedule A thereto as limited partners. "Payment Date" means the last day of each Rent Period. -25- "PBGC" means the Pension Benefit Guaranty Corporation, or any entity succeeding to any or all of its functions. "Permitted Investments" means: (a) direct obligations of the United States of America, or of any agency thereof, or obligations guaranteed as to principal and interest by the United States of America, or of any agency thereof, in either case maturing not more than 90 days from the date of acquisition thereof; (b) certificates of deposit issued by any Lender or by any bank or trust company organized under the laws of the United States of America or any state thereof whose short-term unsecured debt is rated A-1 or better or P-1 by S&P or Moody's, respectively, and having capital, surplus and undivided profits of at least $500,000,000, maturing not more than 90 days from the date of acquisition thereof; (c) commercial paper rated A-1 or better or P-1 by S&P or Moody's, respectively, maturing not more than one month from the date of acquisition thereof; (d) commercial paper of any Lender (or any Affiliate thereof located in the United States of America) that is rated A-1 or better or P-1 by S&P or Moody's, respectively, maturing not more than one month from the date of acquisition thereof; (e) repurchase agreements entered into with any Lender or with any bank or trust company satisfying the conditions of clause (b) hereof that is secured by any obligation of the type described in clauses (a) through (d) of this definition; and (f) money market funds acceptable to the Required Lenders. "Permitted Lease Balance" means, with respect to any Leased Property and calculated as of any date, (i) the Leased Property Balance with respect to such Leased Property as of the date of such calculation, minus (ii) Force Majeure Losses with respect to such Leased Property, plus (iii) the amount of insurance proceeds applied towards the remediation of such Force Majeure Losses. For purposes of this definition, Leased Property means the Raw Land and/or the Building subject to a particular Lease Supplement. "Permitted Lien" means: (a) Liens for Taxes not assessed or, if assessed, not yet due and payable, or are being contested in good faith by appropriate proceedings; (b) repairman's, mechanic's, carrier's or other similar Liens arising in the ordinary course of business or by operation of law securing obligations that are not more than 30 days overdue, which have been bonded or which are being contested in good faith by appropriate proceedings; (c) Lessor Liens; (d) Liens of subleases permitted by the Lease; (e) Liens arising out of judgments or awards with respect to which appeals or other proceedings for review are being prosecuted in good faith and for which adequate provisions have been made; (f) easements, rights of way and other encumbrances on title to real property to the extent permitted by the Lease; and (g) Liens described on the Title Policy delivered in connection with the related Leased Property on the Closing Date therefor, but only if, in the case of Liens being contested as described in clause (a), (b) or (e) above, (i) adequate reserves have been provided by the related Lessee for the payment of the Taxes or other obligations; and (ii) such proceedings, or the continued existence of such Lien, do not give rise to any substantial likelihood of the sale, forfeiture or other loss of the related Leased Property or any interests therein, or any likelihood of criminal liability on the part of the Agent or any Funding Party. -26- "Person" means an individual, corporation, company, partnership, limited liability company, joint venture, voluntary association, trust, unincorporated organization or government or any agency, instrumentality or political subdivision thereof or any other form of entity. "Plan" means any "employee benefit plan" (as defined in Section 3(3) of ERISA), including, but not limited to, any defined benefit pension plan, profit sharing plan, money purchase pension plan, savings or thrift plan, stock bonus plan, employee stock ownership plan, Multiemployer Plan, or any plan, fund, program, arrangement or practice providing for medical (including post-retirement medical), hospitalization, accident, sickness, disability, or life insurance benefits, but shall exclude any Foreign Plan. "Plans and Specifications" means with respect to any Building the final plans and specifications for such Building, which may be standard forms for buildings of that type, and, if applicable, referred to by the Appraiser in the Appraisal, as such Plans and Specifications may be hereafter amended, supplemented or otherwise modified from time to time. "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. "Present Value" with respect to any payment to be made in the future means the amount of such payment, discounted to present value as of the date of calculation employing a discount rate equal to the Implicit Rate, and, with respect to any payment made prior to the date of such calculation means the amount of such payment, plus interest on such amount calculated at the Implicit Rate for such Leased Property. "Project Costs" means, as of any date and with respect to any Leased Property, those portions, in the aggregate, of the Funded Amount for such Leased Property as of such date that, when expended by the Lessor, were, or would have been, capitalized by Lessor in accordance with GAAP. For purposes of calculating the Construction Failure Payment, "Project Costs" shall also include other costs related to Construction paid to third parties other than the Funding Parties as described in EITF 97-10. For purposes of calculating the Recourse Deficiency Percentage, as used in this definition, Leased Property means the Raw Land and/or the Building subject to a particular Lease Supplement. "Properties" means all real property owned, leased or otherwise used or occupied by ChoicePoint or any Consolidated Subsidiary, wherever located. "Purchase Agreement" means with respect to any Land, the purchase agreement or option agreement, as the case may be, with the Seller for the conveyance of such Land to the Lessor. "Purchase Option" is defined in Section 14.1(a) of the Lease. -27- "Quarterly Payment Date" means the last Business Day of each March, June, September and December of each year. "Rating Agency" means either Moody's or S&P. "Raw Land" means, with respect to any Leased Property, the parcel of land described in the related Lease Supplement, excluding any improvements thereon. "Raw Land Cost" means, with respect to any Leased Property, the acquisition cost of the Raw Land. "Receivables Subsidiaries" means, collectively, ChoicePoint Capital, Inc., a Delaware corporation, and ChoicePoint Financial, Inc., a Delaware corporation. "Recourse Deficiency Amount" means, with respect to any Leased Property, calculated as of the Completion Date, in the case of Leased Properties that shall have been subject to the Construction Agency Agreement, or the Closing Date, in the case of all other Leased Properties, for such Leased Property, the result of (A) the Recourse Deficiency Percentage times (B) the Project Costs for such Leased Property; provided, however, that, if Raw Land is leased pursuant to a separate Lease Supplement, the Recourse Deficiency Amount with respect to such Leased Property shall equal the Raw Land Cost with respect to such Raw Land. For purposes of this definition, Leased Property means the Raw Land and/or the Building subject to a particular Lease Supplement. "Recourse Deficiency Percentage" means, with respect to any Leased Property, the percentage set forth in the related Lease Supplement calculated as follows and expressed as a percentage: (a) the Future Value of: ((i) 89.9% of (x) the estimated Project Cost (estimated as of the Closing Date for such Leased Property based upon the Construction Budget as of such date) or (y) the actual Project Cost in the case of Leased Properties not subject to the Construction Agency Agreement, less (ii) the Present Value, as of such date, of any "minimum lease payments" with respect to such Leased Property as such term is used in Section 7(d) of Financial Accounting Standard No. 13 (excluding for purposes of this calculation the Recourse Deficiency Amount)), divided by (b) such estimated or actual Project Cost, as the case may be. "Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as the same may be amended or supplemented from time to time. "Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time. "Regulations" means the income tax regulations promulgated from time to time under and pursuant to the Code. -28- "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 any Leased Property, the earlier of (i) the date that the Lease Balance has been paid in full, and (ii) the date on which the Agent gives written notice to the Lessor that the Lenders release any and all interest they may have in such Leased Property, and all proceeds thereof, and any rights to direct, consent or deny consent to any action by the Lessor with respect to such Leased Property. "Remarketing Option" is defined in Section 14.6 of the Lease. "Rent" means Basic Rent and Supplemental Rent, collectively. "Rent Period" means, (x) in the case of Base Rate Advances, the period from, and including, a Quarterly Payment Date to, but excluding, the next succeeding Quarterly Payment Date and (y) in the case of LIBOR Advances: (1) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such LIBOR Advance and ending one, two or three months thereafter, as selected by ChoicePoint in its Funding Notice or Payment Date Notice, as the case may be, given with respect thereto; and (2) thereafter, each period commencing on the last day of the next preceding Rent Period applicable to such LIBOR Advance and ending one, two or three months thereafter, as selected by ChoicePoint by irrevocable notice to the Agent in its related Payment Date Notice; provided that: (a) 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; (b) 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; -29- (c) 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 (d) below, expire on the last Business Day of such calendar month; (d) No Rent Period shall extend beyond the Lease Termination Date; and (e) At any one time, there shall be no more than five (5) Rent Periods. "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 66-2/3% of the aggregate outstanding principal amount of all Funded Amounts. "Required Lenders" means, at any time, Funding Parties holding an aggregate outstanding principal amount of Loans equal to at least 66-2/3% of the aggregate outstanding principal amount of all Loans. "Requirement of Law" means, as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation 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. "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, any Administrative Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer. "Reuters Screen" means, when used in connection with any designated page and LIBOR, the display page so designated on the Reuters Monitor Money Rates Service (or such other page as may replace that page on that service for the purpose of displaying rates comparable to LIBOR). "S&P" means Standard & Poor's Ratings Service, a division of The McGraw-Hill Corporation. "Scheduled Construction Termination Date" means with respect to any Building eighteen (18) months after the Closing Date for the related Land, subject to the occurrence of a Construction Force Majeure Event, but in no event later than the Lease Termination Date. -30- "SEC" means the United States Securities and Exchange Commission, or any successor Governmental Authority. "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. "Security Agreement and Assignment" means, with respect to any Leased Property, the Security Agreement and Assignment (Construction Contract, Architect's Agreement, Permits, Licenses and Governmental Approvals, and Plans, Specifications and Drawings) from the Construction Agent to the Lessor, substantially in the form of Exhibit C to the Master Agreement. "Seller" means as to any Leased Property, the seller thereof to the Lessor on the related Closing Date. "Solvent" means, as to any Person at any time, that (i) each of the fair value and the present fair saleable value of such Person's assets (including any rights of subrogation or contribution to which such Person is entitled, under any of the Operative Documents or otherwise) is greater than such Person's debts and other liabilities (including contingent, unmatured and unliquidated debts and liabilities) and the maximum estimated amount required to pay such debts and liabilities as such debts and liabilities mature or otherwise become payable; (ii) such Person is able and expects to be able to pay its debts and other liabilities (including, without limitation, contingent, unmatured and unliquidated debts and liabilities) as they mature; and (iii) such Person does not have unreasonably small capital to carry on its business as conducted and as proposed to be conducted. "Spin-Off" means the spinoff of stock of ChoicePoint by Equifax to shareholders of Equifax. "Spin-Off Date" means the date on which the Spin Off is consummated. "Subsidiary" means, with respect to any Person, any corporation or other entity (including, without limitation, partnerships, joint ventures, and associations) regardless of its jurisdiction of organization or formation, at least a majority of the total combined voting power of all classes of voting stock or other ownership interests of which shall, at the time as of which any -31- determination is being made, be owned by such Person, either directly or indirectly through one or more other Subsidiaries; provided that the Receivables Subsidiaries shall not be deemed to be Subsidiaries under the Operative Documents. "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 a 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 all fees payable to the Agent or any Funding Party, amounts payable under Article XIV of the Lease and amounts payable under Article VII of the Master Agreement, 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. "Tax" or "Taxes" is defined in Section 7.4 of the Master Agreement. "Tax Code" shall mean the Internal Revenue Code of 1986, as amended from time to time and any successor statute. "Tax Indemnitee" means the Lessor, the Agent, each Lender and their respective Affiliates, successors, permitted assigns, permitted transferees, employees, officers, directors and agents thereof, provided, however, that in no event shall any Lessee or the Guarantor be a Tax Indemnitee. "Telerate" means, when used in connection with any designated page and LIBOR, the display page so designated on the Dow Jones Telerate Service (or such other page as may replace that page on that service for the purpose of displaying rates comparable to LIBOR). "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 Agent. "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. "Transaction" means all the transactions and activities referred to in or contemplated by the Operative Documents. "UCC" means the Uniform Commercial Code of Georgia, as in effect from time to time. -32- "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. "Unrestricted Environmental Indemnification Amounts" means, with respect to any Leased Property, any Unrestricted Indemnification Amounts of the type described in subpart (i)(D) of the definition of Unrestricted Indemnification Amounts. "Unrestricted Indemnification Amounts" means, with respect to any Leased Property (i) any amounts payable by the Construction Agent with respect to such Leased Property pursuant to (A) Section 3.3(ii) of the Construction Agency Agreement, (B) Section 3.3(iii) of the Construction Agency Agreement, (C) that portion of Section 3.3(i) of the Construction Agency Agreement within the parenthetical phrase within such Section 3.3(i) relating to Claims for personal injury or damage to property, or (D) any provision of any Operative Document requiring indemnification for Claims arising from environmental conditions with respect to such Leased Property and (ii) any other amounts that EITF 97-10 allows a Lessee to pay that are capitalizable under GAAP and are not required to be included in the calculation of a Lessee's maximum guaranty amount under EITF 97-10. "Voting Stock" shall mean the securities of any class or classes of ChoicePoint the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the corporate directors of ChoicePoint (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) are at the time directly or indirectly owned by ChoicePoint. "Yield" is defined in Section 2.3 of the Master Agreement. F. Documentary Conventions. The following provisions shall be applicable to each Operative Document. SECTION 1. Notices. All notices, requests, demands or other communications to or upon the respective parties to each agreement to which the Documentary Conventions apply shall be addressed to such parties at the addresses therefor as set forth in Schedule I hereto, or such other address as any such party shall specify to the other parties hereto, 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 -33- 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. SECTION 2. Counterparts. Each agreement to which the Documentary Conventions apply may be executed by the parties thereto in separate counterparts (including by facsimile), each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. SECTION 3. Amendments. No Operative Document nor any of the terms thereof may be terminated, amended, supplemented, waived or modified with respect to the Lessees or any Funding Party, except (a) in the case of a termination, amendment, supplement, waiver or modification to be binding on the Lessees, with the written agreement or consent of ChoicePoint, and (b) in the case of a termination, amendment, supplement, waiver or modification to be binding on the Funding Parties, with the written agreement or consent of the Required Funding Parties; provided, however, that (x) notwithstanding the foregoing provisions of this Section 3, the consent of each Funding Party affected thereby shall be required for any amendment, modification or waiver: (i) amending, modifying, waiving or supplementing any of the provisions of Section 6 of the Master Agreement or the representations of such Funding Party in Section 4.2 or 4.3 of the Master Agreement or this Section 3 or changing the definition of "Required Funding Parties" or "Required Lenders"; (ii) increasing the Commitment of such Funding Party or reducing any amount payable to such Funding Party under the Operative Documents or extending the time for payment of any such amount, including, without limitation, any Rent, any Funded Amount, any fees, any indemnity, the Leased Property Balance, the Lease Balance, any Funding Party Balance, Recourse Deficiency Amount, interest or Yield; or (iii) consenting to any assignment of the Lease or the extension of the Lease Term, releasing any of the collateral assigned to the Agent pursuant to any Mortgage and any Assignment of Lease and Rents (but excluding a release of any rights that the Agent may have in any Leased Property, or the proceeds thereof as contemplated in the definition of "Release Date"), releasing any Lessee from its obligations in respect of the payments of Rent and the Lease Balance, releasing the Guarantor from its obligations under the Guaranty Agreement or the other Operative Documents or changing the absolute and unconditional character of any such obligation; -34- (y) no such termination, amendment, supplement, waiver or modification shall, without the written agreement or consent of the Lessor, the Agent and the Required Lenders, be made to the Lease or the Construction Agency Agreement; and (z) subject to the foregoing clauses (x) and (y), so long as no Event of Default has occurred and is continuing, the Lessor, the Agent and the Lenders may not amend, supplement, waive or modify any terms of the Loan Agreement, the Mortgages and the Assignments of Lease and Rents without the consent of ChoicePoint (such consent not to be unreasonably withheld or delayed); provided that in no event may the Loan Agreement be amended so as to increase the amount of Basic Rent payable by any Lessee without the consent of ChoicePoint. SECTION 4. Headings, etc. The Table of Contents and headings of the various Articles and Sections of each agreement to which the Documentary Conventions apply are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof. SECTION 5. Parties in Interest. Except as expressly provided therein, none of the provisions of any agreement to which the Documentary Conventions apply is intended for the benefit of any Person except the parties thereto and their respective successors and permitted assigns. SECTION 6. GOVERNING LAW. EACH AGREEMENT TO WHICH THE DOCUMENTARY CONVENTIONS APPLY HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. SECTION 7. Severability. Any provision of each agreement to which the Documentary Conventions apply that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. SECTION 8. Submission to Jurisdiction; Waivers. Each party to an agreement to which the Documentary Conventions apply hereby irrevocably and unconditionally: (i) submits for itself and its property in any legal action or proceeding relating to the Master Agreement 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 -35- courts from any thereof; provided that this provision shall not limit a party's right to remove such legal action or proceeding from a Georgia state court to a Federal court sitting in the Northern District of Georgia. (ii) 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; (iii) 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 its address set forth in Schedule I hereto or at such other address of which the other parties hereto shall have been notified pursuant to Section 1; and (iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law. EACH PARTY TO EACH AGREEMENT TO WHICH THE DOCUMENTARY CONVENTIONS APPLY HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO SUCH AGREEMENT, ANY OTHER OPERATIVE DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY. SECTION 9. NO ORAL AGREEMENTS. THE OPERATIVE DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER THEREOF. THE OPERATIVE DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES OR ANY COURSE OF PRIOR DEALINGS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. SECTION 10. Construction. No agreement to which the Documentary Conventions apply shall be construed more strictly against any one party, it being recognized that all parties have contributed substantially and materially to the preparation and negotiations of the Operative Documents. -36- SCHEDULE I ADDRESSES FOR NOTICES ChoicePoint or any Lessee: ChoicePoint Inc. 1000 Alderman Drive Alpharetta, Georgia 30005 Attn: Mr. David E. Trine, Treasurer Fax No.: 770/752-6225 Lessor: Atlantic Financial Group, Ltd. 2808 Fairmount, Suite 250 Dallas, Texas 75201 Attn: Stephen Brookshire Fax No.: 214/871-9237 Lender: Sun Trust Bank 303 Peachtree Street MC 1921, 2nd Floor Atlanta, Georgia 30308 Attn: Dan Komitor Fax No.: 404/532-0396 with a copy to: SunTrust Capital Markets, Inc. 303 Peachtree Street, Suite 2400 MC 3951 Atlanta, Georgia 30308 Attn: Peter Kantor Fax No.: 404/230-1344 Fleet National Bank 100 Federal Street Boston, Massachusetts 02110 Attn: John Desmond Fax No.: 617/434-0819 BNP Paribas 1200 Smith Street, Suite 3100 Houston, Texas 77002 Attn: Mike Shryock Fax No.: 713/659-5228 -37- EX-10.2 4 g72515ex10-2.txt MASTER LEASE AGREEMENT DATED AUGUST 29, 2001 EXHIBIT 10.2 ================================================================================ MASTER LEASE AGREEMENT Dated as of August 29, 2001 between ATLANTIC FINANCIAL GROUP, LTD., as Lessor, and CHOICEPOINT INC. AND CERTAIN SUBSIDIARIES OF CHOICEPOINT INC., as Lessees ------------------------------------------- ================================================================================ TABLE OF CONTENTS (Lease Agreement)
Page ---- ARTICLE I. DEFINITIONS........................................................................... 1 ARTICLE II. LEASE OF LEASED PROPERTY.............................................................. 1 2.1 Acceptance and Lease of Property............................................ 1 2.2 Acceptance Procedure........................................................ 2 ARTICLE III. RENT.................................................................................. 2 3.1 Basic Rent.................................................................. 2 3.2 Supplemental Rent........................................................... 2 3.3 Method of Payment........................................................... 3 3.4 Late Payment................................................................ 3 3.5 Net Lease; No Setoff, Etc................................................... 3 3.6 Certain Taxes............................................................... 4 3.7 Utility Charges............................................................. 5 ARTICLE IV. WAIVERS............................................................................... 5 ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES................................................. 6 ARTICLE VI. MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS AND ADDITIONS........................................................... 8 6.1 Maintenance and Repair; Compliance With Law................................. 8 6.2 Alterations................................................................. 8 6.3 Title to Alterations........................................................ 8 ARTICLE VII. USE................................................................................... 9 ARTICLE VIII. INSURANCE............................................................................. 9 ARTICLE IX. ASSIGNMENT AND SUBLEASING............................................................ 11 ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE............................................ 12 10.1 Event of Loss.............................................................. 12 10.2 Event of Taking............................................................ 12 10.3 Casualty................................................................... 13 10.4 Condemnation............................................................... 13 10.5 Verification of Restoration and Rebuilding................................. 14
10.6 Application of Payments.................................................... 14 10.7 Prosecution of Awards...................................................... 15 10.8 Application of Certain Payments Not Relating to an Event of Taking..................................................................... 15 10.9 Other Dispositions......................................................... 15 10.10 No Rent Abatement.......................................................... 16 10.11 Construction Land Interests................................................ 16 ARTICLE XI. INTEREST CONVEYED TO LESSEES......................................................... 16 ARTICLE XII. EVENTS OF DEFAULT.................................................................... 17 ARTICLE XIII. ENFORCEMENT.......................................................................... 20 13.1 Remedies................................................................... 20 13.2 Remedies Cumulative; No Waiver; Consents................................... 22 13.3 Purchase Upon an Event of Default.......................................... 22 13.4 Limitation on Liability.................................................... 23 ARTICLE XIV. SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL ............................................................................. 23 14.1 Lessee's Option to Purchase................................................ 23 14.2 Conveyance to Lessee....................................................... 24 14.3 Acceleration of Purchase Obligation........................................ 24 14.4 Determination of Purchase Price............................................ 24 14.5 Purchase Procedure......................................................... 25 14.6 Option to Remarket......................................................... 26 14.7 Rejection of Sale.......................................................... 28 14.8 Return of Leased Property.................................................. 28 14.9 Renewal.................................................................... 29 ARTICLE XV. LESSEE'S EQUIPMENT................................................................... 29 ARTICLE XVI. RIGHT TO PERFORM FOR LESSEE.......................................................... 30 ARTICLE XVII. MISCELLANEOUS........................................................................ 30 17.1 Reports.................................................................... 30 17.2 Binding Effect; Successors and Assigns; Survival........................... 31 17.3 Quiet Enjoyment............................................................ 31 17.4 Documentary Conventions.................................................... 31 17.5 Liability of Lessor Limited................................................ 31 17.6 Estoppel Certificates...................................................... 32 17.7 No Joint Venture........................................................... 32
(ii) 17.8 No Accord and Satisfaction................................................. 32 17.9 No Merger.................................................................. 32 17.10 Survival................................................................... 32 17.11 Chattel Paper.............................................................. 33 17.12 Time of Essence............................................................ 33 17.13 Recordation of Lease....................................................... 33 17.14 Investment of Security Funds............................................... 33 17.15 Ground Leases.............................................................. 33 17.16 Land and Building.......................................................... 34 17.17 Joint and Several.......................................................... 34 17.18 IDB Documentation.......................................................... 34 EXHIBIT A Lease Supplement
(iii) THIS MASTER LEASE AGREEMENT (as from time to time amended or supplemented, this "Lease"), dated as of August 29, 2001, is among ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership (together with its successors and assigns hereunder, the "Lessor"), as Lessor, and CHOICEPOINT INC., a Georgia corporation ("ChoicePoint"), and certain Subsidiaries of ChoicePoint hereafter parties hereto (individually, with its successors and permitted assigns hereunder, each a "Lessee" and collectively, the "Lessees"), as Lessees. PRELIMINARY STATEMENT A. Lessor will purchase, or acquire a leasehold interest in, from one or more third parties designated by the Construction Agent, on a Closing Date, certain parcels of real property to be specified by the Construction Agent, together with any improvements thereon. B. Lessor desires to lease to each Lessee, and each Lessee desires to lease from Lessor, certain of such properties as described on the Lease Supplement(s) to which such Lessee is a party. C. If applicable, the Construction Agent will, on behalf of Lessor, cause to be constructed, certain improvements on such parcels of real property which as constructed will be the property of Lessor and will become part of such property subject to the terms of this Lease. In consideration of the mutual agreements herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, Lessor and Lessees hereby agree as follows: ARTICLE I. DEFINITIONS Terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix A to the Master Agreement, dated as of August 29, 2001 (as amended, supplemented or otherwise modified from time to time, the "Master Agreement") among ChoicePoint, as Guarantor, the Lessees, Lessor, the financial institutions party thereto as Lenders and SunTrust Bank, as Agent, for all purposes hereof. ARTICLE II. LEASE OF LEASED PROPERTY Section 2.1 Acceptance and Lease of Property. On each Closing Date for Land, Lessor, subject to the satisfaction or waiver of the conditions set forth in Section 3 of the Master 1 Agreement, hereby agrees to accept delivery on such Closing Date of such Land pursuant to the terms of the Master Agreement, together with any Building or Buildings and other improvements thereon, and simultaneously to lease to the related Lessee hereunder for the Lease Term, Lessor's interest in such Land and in such Building or Buildings and other improvements, together with any Building which thereafter may be constructed thereon pursuant to the Construction Agency Agreement, and such related Lessee hereby agrees, expressly for the direct benefit of Lessor, commencing on such Closing Date for the Lease Term, to lease from Lessor's interest in such Land to be delivered on such Closing Date, together with, in the case of Land, Lessor's interest in the Building or Buildings and other improvements thereon and/or which thereafter may be constructed thereon pursuant to the Construction Agency Agreement. Section 2.2 Acceptance Procedure. Lessor hereby authorizes one or more employees of the related Lessee, to be designated by such Lessee, as the authorized representative or representatives of Lessor to accept delivery on behalf of Lessor of that Leased Property identified on the applicable Funding Request. Each Lessee hereby agrees that such acceptance of delivery by such authorized representative or representatives and the execution and delivery by such Lessee on each Closing Date for property to be leased hereunder of a Lease Supplement in substantially the form of Exhibit A hereto (each, a "Lease Supplement") (appropriately completed) shall, without further act, constitute the irrevocable acceptance by such Lessee of that Leased Property which is the subject thereof for all purposes of this Lease and the other Operative Documents on the terms set forth therein and herein, and that such Leased Property, together with, in the case of Land, any and all Buildings and other improvements thereon and/or to be constructed thereon pursuant to the Construction Agency Agreement, shall be deemed to be included in the leasehold estate of this Lease and shall be subject to the terms and conditions of this Lease as of such Closing Date. The demise and lease of each parcel of Land and each Building pursuant to this Section 2.2 shall include any additional right, title or interest in each such parcel of Land and each such Building which may at any time be acquired by Lessor, the intent being that all right, title and interest of Lessor in and to each such parcel of Land and each such Building shall at all times be demised and leased to the related Lessee hereunder. ARTICLE III. RENT Section 3.1 Basic Rent. Beginning with and including the first Payment Date occurring after the Initial Closing Date, each Lessee shall pay to the Agent the Basic Rent for the Leased Properties subject to a Lease Supplement to which such Lessee is a party, in installments, payable in arrears on each Payment Date during the Lease Term, subject to Section 2.3(c) of the Master Agreement. Section 3.2 Supplemental Rent. Each Lessee shall pay to the Agent, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document, any 2 and all Supplemental Rent on the date the same shall become due and payable and in the event of any failure on the part of such Lessee to pay any Supplemental Rent, the Agent shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. All Supplemental Rent to be paid pursuant to this Section 3.2 shall be payable in the type of funds and in the manner set forth in Section 3.3, subject to Section 2.3(c) of the Master Agreement. Section 3.3 Method of Payment. Basic Rent shall be paid to the Agent, and Supplemental Rent (including amounts due under Article XIV hereof) shall be paid to the Agent (or to such Person as may be entitled thereto) or, in each case, to such Person as the Agent (or such other Person) shall specify in writing to the related Lessee, and at such place as the Agent (or such other Person) shall specify in writing to the related Lessee. Each payment of Rent (including payments under Article XIV hereof) shall be made by the Lessees prior to 12:00 p.m. (noon) Atlanta, Georgia time at the place of payment in funds consisting of lawful currency of the United States of America which shall be immediately available on the scheduled date when such payment shall be due, unless such scheduled date shall not be a Business Day, in which case such payment shall be made on the next succeeding Business Day. Section 3.4 Late Payment. If any Basic Rent shall not be paid on the date when due, the related Lessee shall pay to the Agent, as Supplemental Rent, interest (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof to but excluding the Business Day of payment thereof at the Overdue Rate. Section 3.5 Net Lease; No Setoff, Etc. This Lease is a net lease and notwithstanding any other provision of this Lease, each Lessee shall pay all Basic Rent and Supplemental Rent, and all costs, charges, assessments and other expenses foreseen or unforeseen, for which such Lessee or any Indemnitee is or shall become liable by reason of such Lessee's or such Indemnitee's estate, right, title or interest in the Leased Properties, or that are connected with or arise out of the acquisition (except the initial costs of purchase by Lessor of its interest in any Leased Property, which costs, subject to the terms of the Master Agreement, shall be funded by the Funding Parties pursuant to the Master Agreement), construction (except Construction Costs which costs, subject to the terms of the Master Agreement, shall be funded under the Master Agreement), installation, possession, use, occupancy, maintenance, ownership, leasing, repairs and rebuilding of, or addition to, the Leased Properties or any portion thereof, and any other amounts payable hereunder and under the other Operative Documents without counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and each Lessee's obligation to pay all such amounts throughout the Lease Term, including the Construction Term, is absolute and unconditional. The obligations and liabilities of each Lessee hereunder shall in no way be released, discharged or otherwise affected for any reason, including without limitation: (a) any defect in the condition, merchantability, design, quality or fitness for use of any Leased Property or any part thereof, or the failure of any Leased 3 Property to comply with all Applicable Law, including any inability to occupy or use any Leased Property by reason of such non-compliance; (b) any damage to, removal, abandonment, salvage, loss, contamination of or Release from, scrapping or destruction of or any requisition or taking of any Leased Property or any part thereof; (c) any restriction, prevention or curtailment of or interference with any use of any Leased Property or any part thereof including eviction; (d) any defect in title to or rights to any Leased Property or any Lien on such title or rights or on any Leased Property; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by Lessor, the Agent or any Lender; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to any Lessee, Lessor, any Lender, the Agent or any other Person, or any action taken with respect to this Lease by any trustee or receiver of any Lessee, Lessor, any Lender, the Agent, any Ground Lessor or any other Person, or by any court, in any such proceeding; (g) any claim that any Lessee has or might have against any Person, including without limitation, Lessor, any vendor, manufacturer, contractor of or for any Leased Property or any part thereof, the Agent, any Ground Lessor, any Governmental Authority, or any Lender; (h) any failure on the part of Lessor to perform or comply with any of the terms of this Lease, any other Operative Document, any applicable IDB Documentation or of any other agreement; (i) any invalidity or unenforceability or illegality or disaffirmance of this Lease against or by any Lessee or any provision hereof or any of the other Operative Documents or any provision of any thereof whether or not related to the Transaction; (j) the impossibility or illegality of performance by any Lessee, Lessor or both; (k) any action by any court, administrative agency or other Governmental Authority; (l) any restriction, prevention or curtailment of or interference with the Construction or any use of any Leased Property or any part thereof; or (m) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not any Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Articles XIV or X of this Lease, this Lease shall be noncancellable by each Lessee in any circumstance whatsoever and each Lessee, to the extent permitted by Applicable Law, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Lease, or to any diminution, abatement or reduction of Rent payable by such Lessee hereunder. Each payment of Rent made by a Lessee hereunder shall be final and such Lessee shall not seek or have any right to recover all or any part of such payment from Lessor, the Agent, any Lender or any party to any agreements related thereto for any reason whatsoever. Each Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Properties leased by it and Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the property of either any Lessee or any subtenant of any Lessee on any account or for any reason whatsoever, other than solely by reason of Lessor's willful misconduct or gross negligence (except for willful misconduct and gross negligence imputed to Lessor solely as a result of its interest in any Leased Property). Section 3.6 Certain Taxes. Without limiting the generality of Section 3.5, each Lessee agrees to pay when due all real estate taxes, personal property taxes, gross sales taxes, including 4 any sales or lease tax imposed upon the rental payments hereunder or under a sublease, occupational license taxes, water charges, sewer charges, assessments of any nature and all other governmental impositions and charges of every kind and nature whatsoever (the "tax(es)"), when the same shall be due and payable without penalty or interest; provided, however, that this Section shall not apply to any of the taxes covered by the exclusion described in Section 7.4(b) of the Master Agreement. It is the intention of the parties hereto that, insofar as the same may lawfully be done, Lessor shall be, except as specifically provided for herein, free from all expenses in any way related to the Leased Properties and the use and occupancy thereof. Any tax relating to a fiscal period of any taxing authority falling partially within and partially outside the Lease Term, shall be apportioned and adjusted between Lessor and the related Lessee. Each Lessee covenants to furnish Lessor and the Agent, upon the Agent's written request, within forty- five (45) days after the last date when any tax must be paid by such Lessee as provided in this Section 3.6, official receipts of the appropriate taxing, authority or other proof satisfactory to Lessor, evidencing the payment thereof. So long as no Event of Default has occurred and is continuing, the related Lessee may defer payment of a tax so long as the validity or the amount thereof is contested by such Lessee with diligence and in good faith; provided, however, that such Lessee shall pay the tax in sufficient time to prevent delivery of a tax deed. Such contest shall be at the related Lessee's sole cost and expense. Each Lessee covenants to indemnify and save harmless Lessor, the Agent and each Lender from any actual and reasonable costs or expenses incurred by Lessor, the Agent or any Lender as a result of such contest, which indemnification shall survive the termination of this Lease; provided that neither the Agent nor any Lender shall be entitled to claim any indemnity against any Lessee pursuant to this sentence with respect to any Construction Land Interest during the Construction Term therefor. Section 3.7 Utility Charges. Each Lessee agrees to pay or cause to be paid as and when the same are due and payable all charges for gas, water, sewer, electricity, lights, heat, power, telephone or other communication service and all other utility services used, rendered or supplied to, upon or in connection with the Leased Properties leased by it. ARTICLE IV. WAIVERS During the Lease Term, Lessor's interest in the Leased Properties, including the Equipment, the Building(s) (whether or not completed) and the Land, is demised and let by Lessor "AS IS" subject to (a) the rights of any parties in possession thereof, (b) the state of the title thereto existing at the time Lessor acquired its interest in the Leased Properties, (c) any state of facts which an accurate survey or physical inspection might show (including the survey delivered on the related Closing Date), (d) all Applicable Law, and (e) any violations of 5 Applicable Law which may exist upon or subsequent to the commencement of the Lease Term. EACH LESSEE ACKNOWLEDGES THAT, ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE LEASED PROPERTIES, LESSOR IS NOT A MANUFACTURER OF, OR DEALER IN ANY LEASED PROPERTY, AND IS NOT RESPONSIBLE FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE BUILDING(S) OR ANY ALTERATIONS. NEITHER LESSOR, THE AGENT NOR ANY LENDER HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE, HABITABILITY, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED PROPERTIES (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTIES (OR ANY PART THEREOF), ALL SUCH WARRANTIES BEING HEREBY DISCLAIMED, AND NEITHER LESSOR, THE AGENT NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF ANY LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW, except that Lessor hereby represents and warrants that each Leased Property is and shall be free of Lessor Liens. As between Lessor and the Lessees, each related Lessee has been afforded full opportunity to inspect each Leased Property, is satisfied with the results of its inspections of such Leased Property and is entering into this Lease solely on the basis of the results of its own inspections and all risks incident to the matters discussed in the two preceding sentences, as between Lessor, the Agent or the Lenders on the one hand, and the Lessees, on the other, are to be borne by the Lessees, except for the foregoing representation and warranty of Lessor relative to the absence of Lessor Liens. The provisions of this Article IV have been negotiated, and, except to the extent otherwise expressly stated, the foregoing provisions are intended to be a complete exclusion and negation of any representations or warranties by Lessor, the Agent or the Lenders, express or implied, with respect to the Leased Properties, that may arise pursuant to any law now or hereafter in effect, or otherwise. ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES No Lessee shall directly or indirectly create, incur or assume, and each Lessee shall promptly discharge, any Lien on or with respect to any Leased Property, the title thereto, or any interest therein, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of any Leased Property or by reason of labor or materials furnished or claimed to have been furnished to a Lessee, or any of its contractors or agents or Alterations constructed by a Lessee, except, in all cases, Permitted Liens. 6 Notwithstanding the foregoing paragraph, at the request of a Lessee, Lessor shall, from time to time during the Lease Term and upon reasonable advance written notice from such Lessee, and receipt of the materials specified in the next succeeding sentence, consent to and join in any (i) grant of easements, licenses, rights of way and other rights in the nature of easements, including, without limitation, utility easements to facilitate Lessees' use, development and construction of the Leased Properties, (ii) release or termination of easements, licenses, rights of way or other rights in the nature of easements which are for the benefit of the Land or the Building(s) or any portion thereof, (iii) dedication or transfer of portions of the Land, not improved with a Building, for road, highway or other public purposes, (iv) execution of agreements for ingress and egress and amendments to any covenants and restrictions affecting the Land or the Building(s) or any portion thereof and (v) request to any Governmental Authority for platting or subdivision or replatting or resubdivision approval with respect to the Land or any portion thereof or any parcel of land of which the Land or any portion thereof forms part or a request for rezoning or any variance from zoning or other governmental requirements. Lessor's obligations pursuant to the preceding sentence shall be subject to the requirements that: (a) any such action shall be at the sole cost and expense of the requesting Lessee and such Lessee shall pay all actual and reasonable out-of-pocket costs of Lessor, the Agent and any Lender in connection therewith (including, without limitation, the reasonable fees of attorneys, architects, engineers, planners, appraisers and other professionals reasonably retained by Lessor, the Agent or any Lender in connection with any such action), (b) the requesting Lessee shall have delivered to Lessor and Agent a certificate of a Responsible Officer of such Lessee stating that (i) such action will not cause any Leased Property, the Land or any Building or any portion thereof to fail to comply in any material respect with the provisions of this Lease or any other Operative Documents or any applicable IDB Documentation, or in any material respect with Applicable Law; and (ii) such action will not materially reduce the Fair Market Sales Value, utility or useful life of any Leased Property, the Land or any Building nor Lessor's interest therein; and (c) in the case of any release or conveyance, if Lessor, the Agent or any Lender so reasonably requests, the requesting Lessee will cause to be issued and delivered to Lessor and the Agent by the Title Insurance Company an endorsement to the Title Policy pursuant to which the Title Insurance Company agrees that its liability for the payment of any loss or damage under the terms and provisions of the Title Policy will not be affected by reason of the fact that a portion of the real property referred to in Schedule A of the Title Policy has been released or conveyed by Lessor. 7 ARTICLE VI. MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS AND ADDITIONS Section 6.1 Maintenance and Repair; Compliance With Law. Each Lessee, at its own expense, shall at all times (a) maintain each Leased Property leased by it in good repair and condition (subject to ordinary wear and tear), in accordance with prudent industry standards and, in any event, in no less a manner as other similar property owned or leased by such Lessee or its Affiliates, (b) make all Alterations in accordance with, and maintain (whether or not such maintenance requires structural modifications or Alterations) and operate and otherwise keep each Leased Property in compliance in all material respects with, all Applicable Laws and insurance requirements, and (c) make all material repairs, replacements and renewals of each Leased Property or any part thereof which may be required to keep such Leased Property in the condition required by the preceding clauses (a) and (b), provided that the foregoing obligations shall only apply to each Leased Property after the Completion Date with respect to such Leased Property. Each Lessee shall perform the foregoing maintenance obligations regardless of whether any Leased Property is occupied or unoccupied. Each Lessee waives any right that it may now have or hereafter acquire to (i) require Lessor, the Agent or any Lender to maintain, repair, replace, alter, remove or rebuild all or any part of any Leased Property or (ii) make repairs at the expense of Lessor, the Agent or any Lender pursuant to any Applicable Law or other agreements or otherwise. NEITHER LESSOR, THE AGENT NOR ANY LENDER SHALL BE PERSONALLY LIABLE TO ANY LESSEE OR TO ANY CONTRACTORS, SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED PROPERTY OR ANY PART THEREOF. Neither Lessor, the Agent nor any Lender shall be required to maintain, alter, repair, rebuild or replace any Leased Property in any way. Section 6.2 Alterations. Each Lessee may, with the prior written consent of Lessor (which consent shall not be unreasonably withheld), at such Lessee's own cost and expense, make Alterations which do not diminish the value, utility or useful life of any Leased Property. Section 6.3 Title to Alterations. Title to all Alterations shall without further act vest in Lessor (subject to each Lessee's right to remove trade fixtures, personal property and equipment which do not constitute Alterations and which were not acquired with funds advanced by Lessor or any Lender) and shall be deemed to constitute a part of the Leased Properties and be subject to this Lease. 8 ARTICLE VII. USE Each Lessee may use each Leased Property leased by it or any part thereof for any lawful purpose, and in a manner consistent with the standards applicable to properties of a similar nature in the geographic area in which such Leased Property is located, provided that such use does not materially adversely affect the Fair Market Sales Value, utility, remaining useful life or residual value of such Leased Property, and does not materially violate or conflict with, or constitute or result in a material default under, any Applicable Law or any insurance policy required hereunder. In the event that any use of any of the Leased Property changes the character or original intended use of such Leased Property, as such character and intended use existed on the Closing Date therefor, or Completion Date therefor and the Lessees do not purchase the Leased Properties at the end of the Lease Term, the related Lessee, upon request of Lessor, shall restore such Leased Property to its general character and intended use on the Closing Date or Completion Date therefor, ordinary wear and tear excepted. No Lessee shall commit or permit any waste of any Leased Property or any material part thereof. ARTICLE VIII. INSURANCE The provisions of this Article VIII shall not apply to any Construction Land Interest during the Construction Term therefor; during the Construction Term for any Leased Property, the Construction Agent shall maintain insurance in accordance with Section 2.9 of the Construction Agency Agreement. (a) At any time during which any part of any Building or any Alteration is under construction and as to any part of any Building or any Alteration under construction, the related Lessee shall maintain, or cause to be maintained, at its sole cost and expense, as a part of its blanket policies or otherwise, "all risks" non-reporting completed value form of builder's risk insurance. (b) During the Lease Term and with respect to each Leased Property leased by it, each related Lessee shall maintain, at its sole cost and expense, as a part of its blanket policies or otherwise, insurance against loss or damage to any Building by fire and other risks, including comprehensive boiler and machinery coverage, on terms and in amounts no less favorable than insurance covering other similar properties owned or leased by such Lessee or its Affiliates and which is of the type usually carried by corporations engaged in the same or similar business, similarly situated with the related Lessee, and owning or operating similar property, and which cover risks of all kind customarily insured against by such corporations, but in no 9 event less than the replacement cost of such Building from time to time. If at any time during the Lease Term with respect to a Leased Property subject hereto the area in which such Leased Property is located is designated a "flood-prone" area pursuant to the Flood Disaster Protection Act of 1973, or any amendments or supplements thereto, then the related Lessee shall comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973. In addition, the related Lessee will fully comply with the requirements of the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as each may be amended from time to time, and with any other Applicable Law, concerning flood insurance to the extent that it may apply to any such Leased Property. (c) During the Lease Term and with respect to each Leased Property leased by it, each related Lessee shall maintain, at its sole cost and expense, commercial general liability insurance which is of the type usually carried by corporations engaged in the same or similar business, similarly situated with the related Lessee, and owning or operating similar property, and which cover risks of all kind customarily insured against by such corporations. Such insurance shall be on terms and in amounts that are no less favorable than insurance maintained by such Lessee or its Affiliates with respect to similar properties that it owns or leases, but in no event less than $1,000,000 per occurrence. Nothing in this Article VIII shall prohibit any Additional Insured from carrying at its own expense other insurance on or with respect to the Leased Properties, provided that any insurance carried by such Additional Insured shall not prevent any Lessee from carrying the insurance required hereby. (d) Each policy of insurance required to be maintained by a Lessee pursuant to paragraphs (a) and (b) of this Article VIII shall provide that all insurance proceeds in respect of any loss or occurrence shall be adjusted by such Lessee, except (a) that with respect to any loss, the estimated cost of restoration of which is in excess of the greater of $5,000,000 and 50% of the Funded Amounts with respect to the related Leased Property, the adjustment thereof shall be subject to the prior written approval of Lessor, which approval shall not be unreasonably withheld, delayed or conditioned, and the insurance proceeds therefor shall be paid to the Agent for application in accordance with this Lease, and (b) if, and for so long as, an Event of Default exists, all losses shall be adjusted solely by, and all insurance proceeds shall be paid solely to, the Agent for application pursuant to this Lease. (e) On the Initial Closing Date and on each anniversary of the Initial Closing Date, each Lessee shall furnish Lessor with certificates, which may be blanket certificates covering all of the Leased Properties leased by it, showing the insurance required under this Article VIII to be in effect and naming the Additional Insureds, as additional insureds (with respect to the insurance described in paragraph (c)) or, in the case of the Agent with respect to the circumstances described in paragraph (d), loss payee, as applicable. 10 (f) Each policy of insurance maintained by a Lessee pursuant to this Article VIII shall (i) provide that such insurance shall be primary, without right of contribution from any other insurance that is covered by any Additional Insured, (ii) provide that all of the provisions thereof, except the limits of liability, shall operate in the same manner as if there were a separate policy covering each Additional Insured, (iii) provide that the related insurer waives any right of set-off or counterclaim against each Additional Insured, (iv) provide that no Additional Insured shall have any obligation or liability for premiums, commissions, assessments or calls in connection with such insurance, (v) contain the waiver of any right of subrogation of the insurer against each Additional Insured, (vi) provide that in respect of the interests of each Additional Insured, such policies shall not be invalidated by any fraud, action, inaction or misrepresentation of any Lessee or any other Person and shall insure each Additional Insured regardless of any breach of any terms, conditions or warranty contained in such policy by any Lessee or any other Person, to the extent that such endorsement is commercially available in the standard commercial market, and (vii) provide that if the related insurer cancels such insurance for any reason whatsoever, or if the policy limits of any such insurance are reduced, or if any Additional Insured is removed from the coverage of any such insurance, such cancellation, reduction or removal shall not be effective as to any Additional Insured until thirty (30) days after written notice is given by such insurer to such Additional Insured. (g) All insurance policies carried in accordance with this Article VIII shall be maintained with insurers of recognized responsibility rated at least A by A.M. Best & Company, and in all cases the insurer shall be qualified to insure risks in the State where each Leased Property is located. ARTICLE IX. ASSIGNMENT AND SUBLEASING No Lessee may assign any of its right, title or interest in, to or under this Lease, except as set forth in the following sentence. Each Lessee may sublease all or any portion of any Leased Property, provided that (a) all obligations of such Lessee shall continue in full effect as obligations of a principal and not of a guarantor or surety, as though no sublease had been made; (b) such sublease shall be expressly subject and subordinate to this Lease, the Loan Agreement and the other Operative Documents; and (c) each such sublease shall terminate on or before the Lease Termination Date. Each Lessee shall give the Agent and Lessor prompt written notice of any such sublease. Except pursuant to an Operative Document, this Lease shall not be mortgaged or pledged by any Lessee, nor shall any Lessee mortgage or pledge any interest in any Leased Property or any portion thereof. Any such mortgage or pledge shall be void. 11 ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE Section 10.1 Event of Loss. Any event (i) which would otherwise constitute a Casualty during the Base Lease Term, and (ii) which, in the good-faith judgment of the related Lessee, (A) renders repair and restoration of a Leased Property impossible or impractical, or requires repairs to the related Leased Property that, with the exercise of reasonable diligence, are impossible to complete by the Lease Termination Date or (B) requires repairs to a Leased Property that would cost in excess of 50% of the original cost of such Leased Property, and as to which such Lessee has determined not to rebuild, shall constitute an "Event of Loss". Within sixty (60) days after the occurrence of such event, the related Lessee shall deliver to Lessor an Officer's Certificate notifying Lessor of such event and, in the case of an event described in the foregoing clause (ii), of such Lessee's determination not to rebuild. In the case of any other event which constitutes a Casualty, the related Lessee shall restore such Leased Property pursuant to Section 10.3. If an Event of Loss shall occur, the related Lessee shall pay to Lessor on the earlier of (i) the Lease Termination Date and (ii) the next Payment Date occurring not less than thirty (30) days after the delivery of the Officer's Certificate pursuant to this Section 10.1 above an amount equal to the related Leased Property Balance. Upon Lessor's receipt of such Leased Property Balance on such date, Lessor shall cause Lessor's interest in such Leased Property to be conveyed to the related Lessee in accordance with and subject to the provisions of Section 14.5 hereof; upon completion of such purchase, but not prior thereto, this Lease with respect to such Leased Property and all obligations hereunder with respect to such Leased Property shall terminate, except with respect to obligations and liabilities hereunder, actual or contingent, that have arisen or relate to events occurring on or prior to such date of purchase, or which are expressly stated herein to survive termination of this Lease. Upon the consummation of the purchase of any Leased Property pursuant to this Section 10.1, any proceeds derived from insurance required to be maintained by the related Lessee pursuant to this Lease for any Leased Property remaining after payment of such purchase price shall be paid over to, or retained by, such Lessee or as it may direct, and Lessor shall assign to such Lessee, without warranty, all of Lessor's rights to and interest in such insurance required to be maintained by such Lessee pursuant to this Lease. Section 10.2 Event of Taking. Any event (i) which constitutes a Condemnation of all of, or substantially all of, a Leased Property, or (ii) (A) which would otherwise constitute a Condemnation and (B) which, in the good-faith judgment of the related Lessee, (1) renders restoration and rebuilding of a Leased Property impossible or impractical, or requires restoration to the related Leased Property that, with the exercise of reasonable diligence, is impossible to complete by the Lease Termination Date or (2) requires repairs to a Leased Property that would cost in excess of 50% of the original cost of such Leased Property, and as to which such Lessee has determined not to rebuild shall constitute an "Event of Taking". Within sixty (60) days after 12 the occurrence of such event, the related Lessee shall deliver to Lessor an Officer's Certificate notifying Lessor of such event and, in the case of an event described in the foregoing clause (ii), of such Lessee's determination not to rebuild. In the case of any other event which constitutes a Condemnation, the related Lessee shall restore and rebuild such Leased Property pursuant to Section 10.4. If an Event of Taking shall occur, the related Lessee shall pay to Lessor (1) on the earlier of (A) the Lease Termination Date and (B) the next Payment Date occurring not less than thirty (30) days after the occurrence of such Event of Taking, in the case of an Event of Taking described in clause (i) above, or (2) on the earlier of (A) the Lease Termination Date and (B) the next Payment Date occurring not less than thirty (30) days after the delivery of the Officer's Certificate pursuant to clause (ii) above, in the case of an Event of Taking described in clause (ii) above, an amount equal to the related Leased Property Balance. Upon Lessor's receipt of such Leased Property Balance on such date, Lessor shall cause Lessor's interest in such Leased Property, and in all condemnation proceeds related thereto, to be conveyed to the related Lessee in accordance with and subject to the provisions of Section 14.5 hereof (provided that such conveyance shall be subject to all rights of the condemning authority); upon completion of such purchase, but not prior thereto, this Lease with respect to such Leased Property and all obligations hereunder with respect to such Leased Property shall terminate, except with respect to obligations and liabilities hereunder, actual or contingent, that have arisen or relate to events occurring on or prior to such date of purchase, or which are expressly stated herein to survive termination of this Lease. Upon the consummation of the purchase of such Leased Property pursuant to this Section 10.2, all Awards received by Lessor, after deducting any reasonable out-of-pocket costs incurred by Lessor in collecting such Awards, received or payable on account of an Event of Taking with respect to such Leased Property during the related Lease Term shall be promptly paid to the related Lessee, and all rights of Lessor in Awards not then received shall be assigned to Lessee by Lessor. Section 10.3 Casualty. If a Casualty shall occur which is not an Event of Loss, the related Lessee shall rebuild and restore the affected Leased Property, will complete the same prior to the Lease Termination Date, and will cause the condition set forth in Section 3.5 (c) of the Master Agreement to be fulfilled with respect to such restoration and rebuilding prior to the Lease Termination Date, regardless of whether insurance proceeds received as a result of such Casualty are sufficient for such purpose. Section 10.4 Condemnation. If a Condemnation shall occur which is not an Event of Taking, the related Lessee shall rebuild and restore the affected Leased Property, will complete the same prior to the Lease Termination Date, and will cause the condition set forth in Section 3.5 (c) of the Master Agreement to be fulfilled with respect to such restoration and rebuilding prior to the Lease Termination Date. 13 Section 10.5 Verification of Restoration and Rebuilding. In the event of Casualty or Condemnation that involves, or is reasonably expected to involve, repair or rebuilding costs in excess of $1,000,000, to verify the related Lessee's compliance with the foregoing Section 10.3 or 10.4, as appropriate, Lessor, the Agent, the Lenders and their respective authorized representatives may, upon five (5) Business Days' notice to such Lessee, make a reasonable number of inspections of the affected Leased Property with respect to (i) the extent of the Casualty or Condemnation and (ii) the restoration and rebuilding of the related Building and the Land. All actual and reasonable out-of-pocket costs of such inspections incurred by Lessor, the Agent or any Lender will be paid by the related Lessee promptly after written request. No such inspection shall unreasonably interfere with the related Lessee's operations or the operations of any other occupant of such Leased Property. None of the inspecting parties shall have any duty to make any such inspection or inquiry and none of the inspecting parties shall incur any liability or obligation by reason of making or not making any such inspection or inquiry. Section 10.6 Application of Payments. All proceeds (except for payments under insurance policies maintained other than pursuant to Article VIII of this Lease) received at any time by Lessor, any Lessee or the Agent from any insurer, Governmental Authority or other Person with respect to any Condemnation or Casualty to any Leased Property or any part thereof or with respect to an Event of Loss or an Event of Taking, plus the amount of any payment that would have been due from an insurer but for a Lessee's self-insurance or deductibles ("Loss Proceeds"), shall (except to the extent Section 10.9 applies) be applied as follows: (a) In the event the related Lessee purchases such Leased Property pursuant to Section 10.1 or Section 10.2, such Loss Proceeds shall be applied as set forth in Section 10.1 or Section 10.2, as the case may be; (b) In the event of a Casualty at such time when no Event of Default has occurred and is continuing and the related Lessee is obligated to repair and rebuild such Leased Property pursuant to Section 10.3, such Lessee may, in good faith and subsequent to the date of such Casualty, certify to Lessor and to the applicable insurer that no Event of Default has occurred and is continuing, in which event the applicable insurer shall pay the Loss Proceeds to such Lessee; (c) In the event of a Condemnation at such time when no Event of Default has occurred and is continuing and the related Lessee is obligated to repair and rebuild such Leased Property pursuant to Section 10.4, such Lessee may, in good faith and subsequent to the date of such Condemnation, certify to Lessor and the Agent that no Event of Default has occurred and is continuing, in which event the applicable Award shall be paid over to such Lessee; and (d) As provided in Section 10.8, if such section is applicable. 14 During any period of repair or rebuilding pursuant to this Article X, this Lease will remain in full force and effect and Basic Rent shall continue to accrue and be payable without abatement or reduction. Each Lessee shall maintain records setting forth information relating to the receipt and application of payments in accordance with this Section 10.6. Such records shall be kept on file by each Lessee at its offices and shall be made available to Lessor, the Lenders and the Agent upon request. Section 10.7 Prosecution of Awards. (a) If any Condemnation shall occur, the party receiving the notice of such Condemnation shall give to the other party and the Agent promptly, but in any event within thirty (30) days after the occurrence thereof, written notice of such occurrence and the date thereof, generally describing the nature and extent of such Condemnation. With respect to any Event of Taking or any Condemnation, the related Lessee shall control the negotiations with the relevant Governmental Authority as to any proceeding in respect of which Awards are required, under Section 10.6, to be assigned or released to such Lessee, unless an Event of Default shall have occurred and be continuing, in which case (i) the Agent (or Lessor if the Loans have been fully paid) shall control such negotiations; and (ii) such Lessee hereby irrevocably assigns, transfers and sets over to Lessor all rights of such Lessee to any Award on account of any Event of Taking or any Condemnation and, if there will not be separate Awards to Lessor and such Lessee on account of such Event of Taking or Condemnation, irrevocably authorizes and empowers the Agent (or Lessor if the Loans have been fully paid) during the continuance of an Event of Default, with full power of substitution, in the name of such Lessee or otherwise (but without limiting the obligations of such Lessee under this Article X), to file and prosecute what would otherwise be such Lessee's claim for any such Award and to collect, receipt for and retain the same. In any event Lessor and the Agent may participate in such negotiations, and no settlement will be made without the prior consent of the Agent (or Lessor if the Loans have been fully paid), not to be unreasonably withheld. (b) Notwithstanding the foregoing, each Lessee may prosecute, and Lessor shall have no interest in, any claim with respect to such Lessee's personal property and equipment not financed by or otherwise property of Lessor, business interruption or similar award and such Lessee's relocation expenses. Section 10.8 Application of Certain Payments Not Relating to an Event of Taking. In case of a requisition for temporary use of all or a portion of any Leased Property which is not an Event of Taking, this Lease shall remain in full force and effect with respect to such Leased Property, without any abatement or reduction of Basic Rent, and the Awards for such Leased Property shall, unless an Event of Default has occurred and is continuing, be paid to the related Lessee. Section 10.9 Other Dispositions. Notwithstanding the foregoing provisions of this Article X, so long as an Event of Default shall have occurred and be continuing, any amount that 15 would otherwise be payable to or for the account of, or that would otherwise be retained by, Lessee pursuant to this Article X shall be paid to the Agent (or Lessor if the Loans have been fully paid) as security for the obligations of the Lessees under this Lease and, at such time thereafter as no Event of Default shall be continuing, such amount shall be paid promptly to the related Lessee to the extent not previously applied by Lessor or the Agent in accordance with the terms of this Lease or the other Operative Documents. Section 10.10 No Rent Abatement. Rent shall not abate hereunder by reason of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of any Leased Property, and each Lessee shall continue to perform and fulfill all of such Lessee's obligations, covenants and agreements hereunder notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease Termination Date. Section 10.11 Construction Land Interests. Notwithstanding anything to the contrary set forth in this Article X, the provisions of the Construction Agency Agreement shall control with respect to any Casualty, Event of Loss, Condemnation or Event of Taking with respect to a Construction Land Interest during the Construction Term therefor. ARTICLE XI. INTEREST CONVEYED TO LESSEES Each Lessee and Lessor intend that this Lease be treated, for accounting purposes, as an operating lease. For purposes of federal and state income taxes, and commercial and bankruptcy law, each 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 mortgage or deed of trust (whichever is applicable in the jurisdictions in which the Leased Properties are located) and security agreement, encumbering the Leased Properties, and that each Lessee, as grantor, hereby grants to Lessor, as mortgagee or beneficiary and secured party, or any successor thereto, a first and paramount Lien on each Leased Property in which such Lessee has an interest, except for Permitted Liens of the type described in clause (a) of the definition thereof, and subject to the interests of any Ground Lessor (if applicable), (ii) that Lessor shall have, as a result of such determination, all of the rights, powers and remedies of a mortgagee, deed of trust beneficiary or secured party available under Applicable Law to take possession of and sell (whether by foreclosure or otherwise) any Leased Property, (iii) that the effective date of such mortgage, security deed or deed of trust shall be the effective date of this Lease, or the related Lease Supplement, if later, (iv) that the recording of this Lease or a Lease Supplement shall be deemed to be the recording of such mortgage, security deed or deed of trust, (v) that the obligations secured by such mortgage, security deed or deed of trust shall include the Funded Amounts and all Basic Rent and Supplemental Rent hereunder and all other obligations of and amounts due from each Lessee hereunder and under the Operative Documents and (vi) 16 that the related Lessee will be treated as the owner of the Leased Properties leased by such Lessee for tax purposes. ARTICLE XII. EVENTS OF DEFAULT The following events shall constitute Events of Default (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) any Lessee shall fail to make any payment of Basic Rent within five (5) days after the date that such Basic Rent is due; (b) any Lessee shall fail to make any payment of Rent (other than Basic Rent and other than as set forth in clause (c)) or any other amount payable hereunder or under any of the other Operative Documents (other than Basic Rent and other than as set forth in clause (c)), and such failure shall continue for a period of ten days after written notice thereof from Lessor or the Agent to ChoicePoint; (c) any Lessee shall fail to pay the Funded Amount or Lease Balance when due pursuant to Section 10.1, 10.2, 14.1 or 14.2, or any Lessee shall fail to pay the Recourse Deficiency Amount when required pursuant to Article XIV or the Construction Agent shall fail to make any payment when due under the Construction Agency Agreement; (d) any Lessee shall fail to maintain insurance as required by Article VIII hereof, and such failure shall continue until the earlier of (i) fifteen (15) days after written notice thereof from Lessor and (ii) the day immediately preceding the date on which any applicable insurance coverage would otherwise finally lapse or terminate; (e) any Consolidated Company or any Receivables Subsidiary shall fail to observe or perform within any applicable grace period any covenants or agreements contained in any instrument or agreement relating to any of its Indebtedness exceeding $5,000,000 in the aggregate, or any other event shall occur if the effect of such failure or other event is to accelerate, or permit the holder of such Indebtedness or any other Person to accelerate, the maturity of such Indebtedness; or any such indebtedness shall be required to be prepaid (other than by a regularly scheduled required prepayment) in whole or in part prior to its stated maturity; or any Consolidated Company shall fail to make when due (whether at stated maturity, by acceleration, on demand or otherwise, and after giving effect to any applicable grace period) 17 any payment of principal of or interest on any Indebtedness exceeding $5,000,000 in the aggregate; (f) ChoicePoint or any Lessee shall (i) apply for or consent to the appointment of a receiver, trustee or liquidator of itself or of a substantial part of its property, (ii) be unable, or admit in writing inability, to pay its debts as they mature, (iii) make a general assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent, (v) file a voluntary petition in bankruptcy, or a petition or answer seeking reorganization or an arrangement with creditors to take advantage of any insolvency law or an answer admitting the material allegations of a bankruptcy, reorganization or insolvency petition filed against it, (vi) take corporate action for the purpose of effecting any of the foregoing, or (vii) have an order for relief entered against it in any proceeding under any bankruptcy law; (g) an order, judgment or decree shall be entered, without the application, approval or consent of ChoicePoint or any Lessee, by any court of competent jurisdiction, approving a petition seeking reorganization of such entity or appointing a receiver, trustee or liquidator of such entity or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of 60 consecutive days; (h) ChoicePoint shall fail to observe or perform any covenant or agreement (i) contained in Section 5.2(g) of the Master Agreement and, if capable of being remedied, such failure shall remain unremedied for fifteen (15) days after the earlier of (A) an Executive Officer's obtaining knowledge thereof, or (B) written notice thereof shall have been given to the Lessee by the Agent or any Funding Party, (ii) contained in Section 5.2(e) and if capable of being remedied, such failure shall remain unremedied for ten (10) days after the earlier of (A) an Executive Officer's obtaining knowledge thereof, or (B) written notice thereof shall have been given to the Lessee by the Agent or any Funding Party, or (iii) contained in Sections 2.2(d)(relating to use of Fundings), 5.1(a), 5.1(e), 5.1(g)(v), 5.1(h) or 5.2(c) of the Master Agreement; (i) any Lessee shall fail to observe or perform any covenant or agreement contained herein or in any other Operative Document (other than those referred to in clauses (a) through (h) of this Article XII) and, if capable of being remedied, such failure shall remain unremedied for thirty (30) days after the earlier of (i) an Executive Officer of such Lessee's obtaining knowledge thereof, or (ii) written notice thereof shall have been given to ChoicePoint by the Agent or any Funding Party; (j) a judgment or order for the payment of money in excess of $5,000,000 not covered by insurance or otherwise having a Material Adverse Effect shall be rendered against ChoicePoint or any other Consolidated Company and such judgment or order shall continue 18 unsatisfied and in effect for a period of 60 days during which execution shall not be effectively stayed or deferred (whether by action of a court, by agreement or otherwise); (k) an attachment or similar action shall be made on or taken against any of the assets of any Consolidated Company with an aggregate value (based upon the greater of the book value of such assets as established in accordance with GAAP or the fair market value of such assets as determined in good faith by such Consolidated Company) exceeding $5,000,000 in aggregate and is not removed, suspended or enjoined within 60 days of the same being made or any suspension or injunction being lifted; (l) any Lessee (other than ChoicePoint) shall become a Subsidiary of any other Person (other than ChoicePoint or any Subsidiary of ChoicePoint) or any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) other than employees of ChoicePoint (either directly or through a retirement or employee benefit plan), shall become the "beneficial owner(s)" (as defined in said Rule 13d-3) of more than twenty-five percent (25%) of the shares of the outstanding common stock of ChoicePoint entitled to vote for members of ChoicePoint's board of directors, or any event or condition shall occur or exist which, pursuant to the terms of any Change in Control Provision, requires or permits the holder(s) of Indebtedness of any Consolidated Company to require that such Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in whole or in part, or the maturity of such Indebtedness to be accelerated in any respect; (m) any Reportable Event shall have occurred, or any finding or determination shall be made with respect to a Plan under Section 4041 (c) or (e) of ERISA or any fact or circumstance shall occur with respect to a Plan which, in the opinion of the Lessor, provides for the commencement of any proceeding under Section 4042 of ERISA, or any proceeding shall be commenced with respect to a Plan under Section 4042 of ERISA; (n) if any of the Operative Documents shall be cancelled, terminated, revoked or rescinded or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Operative Documents shall be commenced by or on behalf of any Obligor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Operative Documents is illegal, invalid or unenforceable in accordance with the terms thereof in any material respect; (o) any representation or warranty by ChoicePoint or any Lessee in any Operative Document or in any certificate or document delivered to Lessor, the Agent or any Funding Party pursuant to any Operative Document shall have been incorrect in any material respect when made; or 19 (p) the occurrence of any "Event of Default" as defined in the Existing Lease. ARTICLE XIII. ENFORCEMENT Section 13.1 Remedies. Subject to the right of the Lessees to purchase the Leased Properties as set forth in Section 13.3, upon the occurrence and during the continuance of any Event of Default, Lessor may do one or more of the following as Lessor in its sole discretion shall determine, without limiting any other right or remedy Lessor may have on account of such Event of Default (including, without limitation, the obligation of the Lessees to purchase the Leased Properties as set forth in Section 14.3): (a) Lessor may, by notice to ChoicePoint, rescind or terminate this Lease as of the date specified in such notice; however, (A) no reletting, reentry or taking of possession of any Leased Property by Lessor will be construed as an election on Lessor's part to terminate this Lease unless a written notice of such intention is given to ChoicePoint, (B) notwithstanding any reletting, reentry or taking of possession, Lessor may at any time thereafter elect to terminate this Lease for a continuing Event of Default, and (C) no act or thing done by Lessor or any of its agents, representatives or employees and no agreement accepting a surrender of any Leased Property shall be valid unless the same be made in writing and executed by Lessor; (b) Lessor may (i) demand that the Lessees, and the Lessees shall upon the written demand of Lessor, return the Leased Properties promptly to Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of, Articles VI and XIV hereof as if the Leased Properties were being returned at the end of the Lease Term, and Lessor shall not be liable for the reimbursement of any Lessee for any costs and expenses incurred by such Lessee in connection therewith and (ii) without prejudice to any other remedy which Lessor may have for possession of the Leased Properties, and to the extent and in the manner permitted by Applicable Law, enter upon any Leased Property and take immediate possession of (to the exclusion of the related Lessee) any Leased Property or any part thereof and expel or remove the related Lessee and any other person who may be occupying such Leased Property, by summary proceedings or otherwise, all without liability to any Lessee for or by reason of such entry or taking of possession, whether for the restoration of damage to property caused by such taking or otherwise and, in addition to Lessor's other damages, the Lessees shall be responsible for the actual and reasonable costs and expenses of reletting, including brokers' fees and the reasonable out-of-pocket costs of any alterations or repairs made by Lessor; (c) Lessor may (i) sell all or any part of any Leased Property at public or private sale, as Lessor may determine, free and clear of any rights of any Lessee and without any duty to account to any Lessee with respect to such action or inaction or any proceeds with respect 20 thereto (except to the extent required by Applicable Law or clause (ii) below if Lessor shall elect to exercise its rights thereunder) in which event the related Lessee's obligation to pay Basic Rent for such Leased Property hereunder for periods commencing after the date of such sale shall be terminated or proportionately reduced, as the case may be; and (ii) if Lessor shall so elect, demand that the Lessees pay to Lessor, and the Lessees shall pay to Lessor, on the date of such sale, as liquidated damages for loss of a bargain and not as a penalty (the parties agreeing that Lessor's actual damages would be difficult to predict, but the aforementioned liquidated damages represent a reasonable approximation of such amount) (in lieu of Basic Rent due for periods commencing on or after the Payment Date coinciding with such date of sale (or, if the sale date is not a Payment Date, the Payment Date next preceding the date of such sale)), an amount equal to (a) the excess, if any, of (1) the sum of (A) all Rent due and unpaid to and including such Payment Date and (B) the Lease Balance, computed as of such date, over (2) the net proceeds of such sale (that is, after deducting all out-of-pocket costs and expenses incurred by Lessor, the Agent or any Lender incident to such conveyance (including, without limitation, all costs, expenses, fees, premiums and taxes described in Section 14.5(b))); plus (b) interest at the Overdue Rate on the foregoing amount from such Payment Date until the date of payment; (d) Lessor may, at its option, not terminate this Lease, and continue to collect all Basic Rent, Supplemental Rent, and all other amounts (including, without limitation, the Funded Amount) due Lessor (together with all costs of collection) and enforce the Lessees' obligations under this Lease as and when the same become due, or are to be performed, and at the option of Lessor, upon any abandonment of any Leased Property by Lessee or re-entry of same by Lessor, Lessor may, in its sole and absolute discretion, elect not to terminate this Lease with respect thereto and may make such reasonable alterations and necessary repairs in order to relet such Leased Property, and relet such Leased Property or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Lessor in its reasonable discretion may deem advisable; and upon each such reletting all rentals actually received by Lessor from such reletting shall be applied to the Lessees' obligations hereunder in such order, proportion and priority as Lessor may elect in Lessor's sole and absolute discretion. If such rentals received from such reletting during any Rent Period are less than the Rent to be paid during that Rent Period by the Lessees hereunder, the Lessees shall pay any deficiency, as reasonably calculated by Lessor, to Lessor on the Payment Date for such Rent Period; (e) Lessor may, whether or not Lessor shall have exercised or shall thereafter at any time exercise any of its rights under paragraph (b), (c) or (d) of this Article XIII, demand, by written notice to ChoicePoint specifying a date (the "Final Rent Payment Date") not earlier than 30 days after the date of such notice, that Lessees purchase, on the Final Rent Payment Date, all of the remaining Leased Properties in accordance with the provisions of Sections 14.2, 14.4 and 14.5; provided, however, that (1) such purchase shall occur on the date set forth in such notice, notwithstanding the provision in Section 14.2 calling for such purchase to occur on the Lease 21 Termination Date; and (2) Lessor's obligations under Section 14.5(a) shall be limited to delivery of a special warranty deed and quit claim bill of sale of such Leased Properties, without recourse or warranty, but free and clear of Lessor Liens; (f) Lessor may exercise any other right or remedy that may be available to it under Applicable Law, or proceed by appropriate court action (legal or equitable) to enforce the terms hereof or to recover damages for the breach hereof. Separate suits may be brought to collect any such damages for any Rent Period(s), and such suits shall not in any manner prejudice Lessor's right to collect any such damages for any subsequent Rent Period(s), or Lessor may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term; or (g) Lessor may retain and apply against Lessor's damages all sums which Lessor would, absent such Event of Default, be required to pay to, or turn over to, a Lessee pursuant to the terms of this Lease. Section 13.2 Remedies Cumulative; No Waiver; Consents. To the extent permitted by, and subject to the mandatory requirements of, Applicable Law, each and every right, power and remedy herein specifically given to Lessor or otherwise in this Lease shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any right, power or remedy. No delay or omission by Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of any Lessee or to be an acquiescence therein. Lessor's consent to any request made by any Lessee shall not be deemed to constitute or preclude the necessity for obtaining Lessor's consent, in the future, to all similar requests. No express or implied waiver by Lessor of any Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Potential Event of Default or Event of Default. To the extent permitted by Applicable Law, each Lessee hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use any Leased Property or part thereof in mitigation of Lessor's damages upon the occurrence of an Event of Default or that may otherwise limit or modify any of Lessor's rights or remedies under this Article XIII. Section 13.3 Purchase Upon an Event of Default. Upon the occurrence of an Event of Default, until such time as Lessor commences soliciting bids for, or entering into any agreement for, the sale or re-lease of the Leased Properties (whichever is earlier), the Lessees may purchase all, but not less than all, of the Leased Properties for the Lease Balance, including any amounts 22 due pursuant to Section 7.5 of the Master Agreement and any costs incurred by the Agent or any Funding Party in connection with the preparation for the sale or re-lease of the Leased Properties. Such purchase shall be made in accordance with Section 14.5, upon not less than ten (10) Business Days' written notice (which shall be irrevocable) to Lessor, which notice shall set forth the date of purchase (which shall be a date no later than 30 days from the date of such notice). Section 13.4 Limitation on Liability. Notwithstanding the provisions of Section 13.1, the Lessees' recourse liability to Lessor as a consequence of the occurrence of a Limited Event of Default shall be limited to the payment by the Lessees of the Recourse Deficiency Amount; provided, however if Lessor used commercial reasonable standards in determining that such Limited Event of Default occurred, then the Lessor shall be entitled to exercise any of the remedies set forth in Section 13.1. ARTICLE XIV. SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL Section 14.1 Lessee's Option to Purchase. (a) Subject to the terms, conditions and provisions set forth in this Article XIV, each Lessee shall have the option (the "Purchase Option"), to be exercised as set forth below, to purchase from Lessor, Lessor's interest in all of the Leased Properties; provided that, except as set forth in paragraph (b) below, such option must be exercised with respect to all, but not less than all, of the Leased Properties under all of the Lease Supplements. Such option must be exercised by written notice to Lessor not later than twelve months prior to the scheduled Lease Termination Date which notice shall be irrevocable; such notice shall specify the date that such purchase shall take place, which date shall be a date occurring not less than thirty (30) days after such notice or the Lease Termination Date (whichever is earlier). If the Purchase Option is exercised pursuant to the foregoing, then, subject to the provisions set forth in this Article XIV, on the applicable purchase date or the Lease Termination Date, as the case may be, Lessor shall convey to each Lessee, by special warranty deed and bill of sale, without recourse or warranty (other than as to the absence of Lessor Liens) and each Lessee shall purchase from Lessor, Lessor's interest in the Leased Properties leased by such Lessee. (b) Subject to the terms, conditions and provisions set forth in this Article XIV, each Lessee shall have the option (the "Partial Purchase Option"), to be exercised as set forth below, to purchase from Lessor's interest in any Leased Property leased by such Lessee; provided that, after giving effect to such purchase no less than two Leased Properties remain subject to this Lease. Such option may be exercised by written notice to Lessor at any time prior to the last twelve months of the term of this Lease, which notice shall be irrevocable; such notice shall specify the Leased Property to be purchased and the date that such purchase shall take place, 23 which date shall be a date occurring not less than thirty (30) days after such notice. If a Partial Purchase Option is exercised pursuant to the foregoing, subject to the provisions set forth in this Article XIV, on the applicable purchase date, Lessor shall convey to the related Lessee, and such Lessee shall purchase from Lessor, Lessor's interest in the Leased Property that is the subject of such Partial Purchase Option pursuant to Section 14.5. (c) The Lessees may purchase just the Equipment included in any Leased Property for a purchase price equal to the portion of the related Leased Property Balance allocable to such Equipment (based on the original purchase price for such Equipment as a percentage of the total cost of acquisition and construction of such Leased Property) by giving irrevocable notice of such purchase to Lessor not later than twelve months prior to the scheduled Lease Termination Date, provided that prior to the date of such purchase, such Lessee, at such Lessee's sole cost and expense, has installed replacement equipment in the related Leased Property with a value, utility and useful life at least as high as the Equipment so purchased and delivered good and valid title to such replacement equipment to Lessor, free and clear of all Liens, and has repaired all damage caused by such removal and replacement, all to the reasonable satisfaction of Lessor. Section 14.2 Conveyance to Lessee. Unless (a) the Lessees shall have properly exercised the Purchase Option and purchased the Leased Properties pursuant to Section 14.1(a) or 14.1(b) hereof, or (b) the Lessees shall have properly exercised the Remarketing Option and shall have fulfilled all of the conditions of Section 14.6 hereof, then, subject to the terms, conditions and provisions set forth in this Article XIV, each Lessee shall purchase from Lessor, and Lessor shall convey to each Lessee, on the Lease Termination Date all of Lessor's interest in the Leased Properties leased to such Lessee. Any Lessee may designate, in a notice given to Lessor not less than ten (10) Business Days prior to the closing of such purchase, or any purchase pursuant to Section 14.1(a) or (b),(time being of the essence), the transferee to whom the conveyance shall be made (if other than to such Lessee), in which case such conveyance shall (subject to the terms and conditions set forth herein) be made to such designee; provided, however, that such designation of a transferee shall not cause any Lessee to be released, fully or partially, from any of its obligations under this Lease. Section 14.3 Acceleration of Purchase Obligation. The Lessees shall be obligated to purchase Lessor's interest in the Leased Properties immediately, automatically and without notice upon the occurrence of any Event of Default specified in clause (f) or (g) of Article XII, for the purchase price set forth in Section 14.4. Upon the occurrence and during the continuance of any other Event of Default, the Lessees shall be obligated to purchase Lessor's interest in the Leased Properties for the purchase price set forth in Section 14.4 upon notice of such obligation from Lessor. Section 14.4 Determination of Purchase Price. Upon the purchase by the Lessees of Lessor's interest in the Leased Properties upon the exercise of the Purchase Option or pursuant to 24 Section 14.2 or 14.3, the aggregate purchase price for all of the Leased Properties shall be an amount equal to the Lease Balance as of the closing date for such purchase, including any amount due pursuant to Section 7.5(f) of the Master Agreement as a result of such purchase. Upon the purchase by a Lessee of Lessor's interest in a Leased Property upon the exercise of a Partial Purchase Option, the purchase price for such Leased Property shall be an amount equal to the Leased Property Balance for such Leased Property as of the closing date for such purchase, including any amount due pursuant to Section 7.5(f) of the Master Agreement as the result of such purchase. Section 14.5 Purchase Procedure. (a) If a Lessee shall purchase Lessor's interest in a Leased Property or in Equipment pursuant to any provision of this Lease, (i) such Lessee shall accept from Lessor and Lessor shall convey such Leased Property or Equipment, as the case may be, by a duly executed and acknowledged special warranty deed and quit claim bill of sale of such Leased Property or Equipment, as the case may be, in recordable form, (ii) upon the date fixed for any purchase of Lessor's interest in Leased Property hereunder, the related Lessee(s) shall pay to the order of the Agent (or Lessor if the Loans have been paid in full) the Lease Balance or Leased Property Balance, as applicable, including any amount due pursuant to Section 7.5 of the Master Agreement as a result of such purchase, by wire transfer of immediately available funds, (iii) Lessor will execute and deliver to the related Lessee such other documents, including releases, affidavits, termination agreements and termination statements, as may be legally required or as may be reasonably requested by such Lessee in order to effect such conveyance, free and clear of Lessor Liens and the Liens of the Operative Documents and (iv) if such Leased Property is subject to a Ground Lease, Lessor will execute and deliver to the related Lessee an assignment or termination of such Ground Lease, as directed by such Lessee, in such form as may be reasonably requested by such Lessee, and such Lessee shall pay any amounts due with respect thereto under such Ground Lease. (b) Each Lessee shall, at such Lessee's sole cost and expense, obtain all required governmental and regulatory approval and consents and in connection therewith shall make such filings as required by Applicable Law; in the event that Lessor is required by Applicable Law to take any action in connection with such purchase and sale, the Lessees shall pay prior to transfer all reasonable out-of-pocket costs incurred by Lessor in connection therewith. Without limiting the foregoing, all costs incident to such conveyance, including, without limitation, each Lessee's attorneys' fees, Lessor's attorneys' fees, commissions, each Lessee's and Lessor's escrow fees, recording fees, title insurance premiums and all applicable documentary transfer or other transfer taxes and other taxes required to be paid in order to record the transfer documents that might be imposed by reason of such conveyance and the delivery of such deed shall be borne entirely by and paid by the Lessees. (c) Upon expiration or termination of this Lease resulting in conveyance of Lessor's interest in the title to the Leased Properties to the Lessees, there shall be no apportionment of 25 rents (including, without limitation, water rents and sewer rents), taxes, insurance, utility charges or other charges payable with respect to the Leased Properties, all of such rents, taxes, insurance, utility or other charges due and payable with respect to the Leased Properties prior to termination being payable by the Lessees hereunder and all due after such time being payable by the Lessees as the then owners of the Leased Properties. Section 14.6 Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 14.6, the Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option"). The Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which, unless waived in writing by Lessor and the Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 14.2. (a) Not later than twelve months prior to the scheduled Lease Termination Date, ChoicePoint shall give to Lessor and the Agent written notice of the Lessees' exercise of the Remarketing Option. (b) Not later than ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and the Agent an environmental assessment of each Leased Property leased by it dated not earlier than forty-five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant selected by the related Lessee and reasonably satisfactory to the Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental conditions beyond those described in the related Environmental Audit and shall not include a recommendation for further investigation to make such determination. (c) On the date of ChoicePoint's notice to Lessor and the Agent of the Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied. (d) Except during the Construction Term for the related Leased Property, each Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Properties leased by it pursuant to Sections 6.1, 6.2, 10.3 and 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to said Sections, in each case by the date on which Lessor and the Agent receive ChoicePoint's notice of the Lessees' exercise of the Remarketing 26 Option (time being of the essence), regardless of whether the same shall be within such Lessee's control. (e) Upon request by the Agent, each Lessee shall promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same. (f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof. (g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens. (h) In connection with any such sale of Leased Properties, each Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by it, whether incurred by Lessor, any Lender, the Agent or such Lessee, including without limitation, to the extent not paid by the purchaser, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, such Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes. (i) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the scheduled 27 expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties shall be at the Lessees' sole expense. Lessee promptly shall submit all bids to Lessor and the Agent and Lessor; the Agent will have the right to review the same; and the Agent and Lessor will have the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and absolute discretion, by notice to ChoicePoint, given within 30 days of receipt of such offer, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Funded Amounts have been fully paid); provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to Section 14.6(i), minus any and all reasonable costs and expenses (including broker fees, appraisal costs, reasonable legal fees and transfer taxes) incurred by the Agent or Lessor in connection with the marketing of the Leased Properties or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to ChoicePoint on the Lease Termination Date. No Lessee shall have the right, power or authority to bind Lessor in connection with any proposed sale of the Leased Properties. Section 14.7 Rejection of Sale. Notwithstanding anything contained herein to the contrary, if Lessor or the Agent rejects the purchase offer for the Leased Properties as provided in (and subject to the conditions set forth in) Section 14.6, then (a) the Lessees, jointly and severally, shall pay to the Agent the Recourse Deficiency Amount on the Lease Termination Date pursuant to Section 14.6(i), and (b) Lessor shall retain title to the Leased Properties. Section 14.8 Return of Leased Property. If Lessor retains title to any Leased Property pursuant to Section 14.7 hereof, then each Lessee shall, on the Lease Termination Date, and at its own expense, return possession of the Leased Properties leased by it to Lessor for retention by Lessor or, if the Lessees properly exercise the Remarketing Option and fulfill all of the conditions of Section 14.6 hereof and neither Lessor nor the Agent rejects such purchase offer pursuant to Section 14.6, then each Lessee shall, on such Lease Termination Date, and at its own cost, transfer possession of the Leased Properties leased by it to the independent purchaser thereof, in each case by surrendering the same into the possession of Lessor or such purchaser, 28 as the case may be, free and clear of all Liens other than Lessor Liens, in as good condition as it was on the Completion Date therefor in the case of new Construction, or the Closing Date (as modified by Alterations permitted by this Lease), ordinary wear and tear excepted, and in compliance in all material respects with Applicable Law. Each Lessee shall, on and within a reasonable time before and after the Lease Termination Date, cooperate with Lessor and the independent purchaser of any Leased Property leased by such Lessee in order to facilitate the ownership and operation by such purchaser of such Leased Property after the Lease Termination Date, which cooperation shall include the following, all of which such Lessee shall do on or before the Lease Termination Date or as soon thereafter as is reasonably practicable: providing all books and records regarding the related Lessee's maintenance of such Leased Property and all know-how, data and technical information relating thereto, providing a copy of the Plans and Specifications within the possession of such Lessee or ChoicePoint, granting or assigning all licenses (to the extent assignable) necessary for the operation and maintenance of such Leased Property, and cooperating in seeking and obtaining all necessary Governmental Action. Each Lessee shall have also paid the cost of all Alterations commenced prior to the Lease Termination Date. The obligations of such Lessee under this Article XIV shall survive the expiration or termination of this Lease. Section 14.9 Renewal. Subject to the conditions set forth herein, ChoicePoint may, by written notice to Lessor and the Agent given not later than twelve months and not earlier than sixteen months, prior to the then scheduled Lease Termination Date, request to renew this Lease for five years, commencing on the date following such Lease Termination Date, provided that in no event may the Lease Term exceed 16.5 years. No later than the date that is 45 days after the date the request to renew has been delivered to each of Lessor and the Agent, the Agent will notify ChoicePoint whether or not Lessor and the Lenders consent to such renewal request (which consent may be granted or denied in the Lessor's and each Lender's sole discretion and may be conditioned on such conditions precedent as may be specified by Lessor or such Lender). If the Agent fails to respond in such time frame, such failure shall be deemed to be a rejection of such request. ARTICLE XV. LESSEE'S EQUIPMENT After any repossession of any Leased Property (whether or not this Lease has been terminated), the related Lessee, at its expense and so long as such removal of such trade fixture, personal property or equipment shall not result in a violation of Applicable Law, shall, within a reasonable time after such repossession or within ninety (90) days after such Lessee's receipt of Lessor's written request (whichever shall first occur), remove all of such Lessee's trade fixtures, personal property and equipment from such Leased Property (to the extent that the same can be readily removed from such Leased Property without causing material damage to such Leased 29 Property); provided, however, that such Lessee shall not remove any such trade fixtures, personal property or equipment that has been financed by Lessor and/or the Lenders under the Operative Documents or otherwise constituting Leased Property (or that constitutes a replacement of such property). Any of a Lessee's trade fixtures, personal property and equipment not so removed by such Lessee within such period shall be considered abandoned by such Lessee, and title thereto shall without further act vest in Lessor, and may be appropriated, sold, destroyed or otherwise disposed of by Lessor without notice to any Lessee and without obligation to account therefor and the related Lessee will pay Lessor, upon written demand, all reasonable costs and expenses incurred by Lessor in removing, storing or disposing of the same and all costs and expenses incurred by Lessor to repair any damage to such Leased Property caused by such removal. Each Lessee will immediately repair at its expense all damage to such Leased Property caused by any such removal (unless such removal is effected by Lessor, in which event such Lessee shall pay all reasonable costs and expenses incurred by Lessor for such repairs). Lessor shall have no liability in exercising Lessor's rights under this Article XV, nor shall Lessor be responsible for any loss of or damage to any Lessee's personal property and equipment. ARTICLE XVI. RIGHT TO PERFORM FOR LESSEE If any Lessee shall fail to perform or comply with any of its agreements contained herein and either such failure shall continue for a period of 10 or more days after notice to ChoicePoint or to such Lessee by Lessor or the Agent or such failure has resulted in immediate material danger to any Leased Property or Lessor's or the Agent's interest therein, Lessor, upon reasonable notice to ChoicePoint or such Lessee, may perform or comply with such agreement, and Lessor shall not thereby be deemed to have waived any default caused by such failure, and the amount of such payment and the amount of the expenses of Lessor (including actual and reasonable attorneys' fees and expenses) incurred in connection with such payment or the performance of or compliance with such agreement, as the case may be, shall be deemed Supplemental Rent, payable by the related Lessee to Lessor within thirty (30) days after written demand therefor. ARTICLE XVII. MISCELLANEOUS Section 17.1 Reports. To the extent required under Applicable Law and to the extent it is reasonably practical for a Lessee to do so, such Lessee shall prepare and file in timely fashion, or, where such filing is required to be made by Lessor or it is otherwise not reasonably practical for a Lessee to make such filing, Lessee shall prepare and deliver to Lessor (with a copy to the 30 Agent) within a reasonable time prior to the date for filing and Lessor shall file, any material reports with respect to the condition or operation of such Leased Property that shall be required to be filed with any Governmental Authority. Section 17.2 Binding Effect; Successors and Assigns; Survival. The terms and provisions of this Lease, and the respective rights and obligations hereunder of Lessor and the Lessees, shall be binding upon their respective successors, legal representatives and assigns (including, in the case of Lessor, any Person to whom Lessor may transfer any Leased Property or any interest therein in accordance with the provisions of the Operative Documents), and inure to the benefit of their respective permitted successors and assigns, and the rights granted hereunder to the Agent and the Lenders shall inure (subject to such conditions as are contained herein) to the benefit of their respective permitted successors and assigns. Each Lessee hereby acknowledges that Lessor has assigned all of its right, title and interest to, in and under this Lease to the Agent and the Lenders pursuant to the Loan Agreement and related Operative Documents, and that all of Lessor's rights hereunder may be exercised by the Agent. Section 17.3 Quiet Enjoyment. Lessor covenants that it will not interfere in the related Lessee's or any of its permitted sublessees' quiet enjoyment of the Leased Properties in accordance with this Lease during the Lease Term, so long as no Event of Default has occurred and is continuing. Such right of quiet enjoyment is independent of, and shall not affect, Lessor's rights otherwise to initiate legal action to enforce the obligations of the Lessees under this Lease. Section 17.4 Documentary Conventions. The Documentary Conventions shall apply to this Lease. Section 17.5 Liability of Lessor Limited. Except as otherwise expressly provided below in this Section 17.5, it is expressly understood and agreed by and between each Lessee, Lessor and their respective successors and assigns that nothing herein contained shall be construed as creating any liability of Lessor or any of its Affiliates or any of their respective officers, directors, employees or agents, individually or personally, for any failure to perform any covenant, either express or implied, contained herein, all such liability (other than that resulting from Lessor's gross negligence or willful misconduct, except to the extent imputed to Lessor by virtue of any Lessee's action or failure to act), if any, being expressly waived by each Lessee and by each and every Person now or hereafter claiming by, through or under any Lessee, and that, so far as Lessor or any of its Affiliates or any of their respective officers, directors, employees or agents, individually or personally, is concerned, each Lessee and any Person claiming by, through or under any Lessee shall look solely to the right, title and interest of Lessor in and to the Leased Properties and any proceeds from Lessor's sale or encumbrance thereof (provided, however, that no Lessee shall be entitled to any double recovery) for the performance of any obligation under this Lease and under the Operative Documents and the satisfaction of any liability arising therefrom (other than that resulting from Lessor's gross 31 negligence or willful misconduct, except to the extent imputed to Lessor by virtue of any Lessee's action or failure to act). Section 17.6 Estoppel Certificates. Each party hereto agrees that at any time and from time to time during the Lease Term, it will promptly, but in no event later than thirty (30) days after request by the other party hereto, execute, acknowledge and deliver to such other party or to any prospective purchaser (if such prospective purchaser has signed a commitment or letter of intent to purchase any Leased Property or any part thereof or any Note), assignee or mortgagee or third party designated by such other party, a certificate stating (a) that this Lease is unmodified and in force and effect (or if there have been modifications, that this Lease is in force and effect as modified, and identifying the modification agreements); (b) the date to which Basic Rent has been paid; (c) whether or not there is any existing default by any Lessee in the payment of Basic Rent or any other sum of money hereunder, and whether or not there is any other existing default by either party with respect to which a notice of default has been served, and, if there is any such default, specifying the nature and extent thereof; (d) whether or not, to the knowledge of the signer, there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed hereunder existing in favor of the party executing such certificate and (e) other items that may be reasonably requested; provided that no such certificate may be requested unless the requesting party has a good faith reason for such request. Section 17.7 No Joint Venture. Any intention to create a joint venture, partnership or other fiduciary relationship between Lessor and any Lessee is hereby expressly disclaimed. Section 17.8 No Accord and Satisfaction. The acceptance by Lessor of any sums from any Lessee (whether as Basic Rent or otherwise) in amounts which are less than the amounts due and payable by the Lessees hereunder is not intended, nor shall be construed, to constitute an accord and satisfaction of any dispute between Lessor and any Lessee regarding sums due and payable by any Lessee hereunder, unless Lessor specifically deems it as such in writing. Section 17.9 No Merger. In no event shall the leasehold interests, estates or rights of any Lessee hereunder, or of the holder of any Notes secured by a security interest in this Lease, merge with any interests, estates or rights of Lessor in or to the Leased Properties, it being understood that such leasehold interests, estates and rights of each Lessee hereunder, and of the holder of any Notes secured by a security interest in this Lease, shall be deemed to be separate and distinct from Lessor's interests, estates and rights in or to the Leased Properties, notwithstanding that any such interests, estates or rights shall at any time or times be held by or vested in the same person, corporation or other entity. Section 17.10 Survival. The obligations of the parties to be performed under this Lease prior to the Lease Termination Date and the obligations of the parties pursuant to Articles III, X, XI, XIII, Sections 14.2, 14.3, 14.4, 14.5, 14.8, Articles XV, and XVI, and Section 17.5 shall 32 survive the expiration or termination of this Lease. The extension of any applicable statute of limitations by Lessor, any Lessee, the Agent or any Indemnitee shall not affect such survival. Section 17.11 Chattel Paper. To the extent that this Lease constitutes chattel paper (as such term is defined in the Uniform Commercial Code in any applicable jurisdiction), no security interest in this Lease may be created through the transfer or possession of any counterpart other than the sole original counterpart, which shall be identified as the original counterpart by the receipt of the Agent. Section 17.12 Time of Essence. Time is of the essence of this Lease. Section 17.13 Recordation of Lease. Each Lessee will, at its expense, cause each Lease Supplement or a memorandum of lease in form and substance reasonably satisfactory to Lessor and such Lessee (if permitted by Applicable Law) to be recorded in the proper office or offices in the States and the municipalities in which the Land is located. Section 17.14 Investment of Security Funds. The parties hereto agree that any amounts not payable to a Lessee pursuant to any provision of Article VIII, X or XIV or this Section 17.14 shall be held by the Agent (or Lessor if the Loans have been fully paid) as security for the obligations of the Lessees under this Lease and the Master Agreement and of Lessor under the Loan Agreement. At such time as such amounts are payable to the Lessee, such amounts, net of any amounts previously applied to the Lessees' obligations hereunder or under the Master Agreement (which application is hereby agreed to by Lessee), shall be paid to the related Lessee. Any such amounts which are held by the Agent (or Lessor if the Loans have been fully paid) pending payment to a Lessee shall until paid to such Lessee, as provided hereunder or until applied against the Lessees' obligations herein and under the Master Agreement and distributed as provided in the Loan Agreement or herein (after the Loan Agreement is no longer in effect) in connection with any exercise of remedies hereunder, be invested by the Agent or Lessor, as the case may be, as directed from time to time in writing by Lessee (provided, however, if an Event of Default has occurred and is continuing it will be directed by the Agent or, if the Loans have been fully paid, Lessor) and at the expense and risk of the Lessees, in Permitted Investments. Any gain (including interest received) realized as the result of any such investment (net of any fees, commissions and other expenses, if any, incurred in connection with such investment) shall be applied in the same manner as the principal invested. Lessee upon demand shall pay to the Agent or Lessor, as appropriate, the amount of any loss incurred in connection with all such investments and the liquidation thereof. Section 17.15 Ground Leases. Each Lessee will, at its expense, timely perform all of the obligations of Lessor, in its capacity as ground lessee, under each Ground Lease and, if requested by Lessor shall provide satisfactory evidence to Lessor of such performance. 33 Section 17.16 Land and Building. If any Building and the Land on which such Building is located are subject to separate Lease Supplements, at any time that the related Lessee exercises an option to purchase such Building or such Land, or to renew this Lease with respect to such Building or such Land, or is obligated to purchase such Building or such Land as a result of an Event of Loss, an Event of Taking or an Event of Default, such purchase or renewal shall be made simultaneously with respect to all of such Building and such Land. Section 17.17 Joint and Several. Each obligation of each Lessee hereunder shall be a joint and several obligation of all of the Lessees. Section 17.18 IDB Documentation. If any Leased Property is subject to an IDB Lease, this Lease shall be deemed to be a sublease. Each Lessee hereby agrees to perform all of its obligations and all obligations of Lessor under all IDB Documentation related to any Leased Property. In the event that a Lessee purchases any Leased Property that is the subject of IDB Documentation, such Lessee shall prepay, or cause to be prepaid, the Bonds related to such Leased Property or shall assume all obligations of the Lessor related to such IDB Documentation and cause the Lessor to be released therefrom pursuant to documentation reasonably satisfactory to the Lessor. For such purpose, if allowed by the relevant IDB Documentation, and if Lessor is the holder of the related Bonds, Lessor will at Lessee's request (i) surrender such Bonds for cancellation in payment thereof and (ii) assign its interest in the relevant IDB Lease to Lessee in lieu of obtaining and conveying legal title to the subject Leased Property, in each case at the related Lessee's expense and pursuant to documentation reasonably satisfactory to Lessor. [Signature page follows] 34 IN WITNESS WHEREOF, the undersigned have each caused this Lease Agreement to be duly executed and delivered and attested by their respective officers thereunto duly authorized as of the day and year first above written. Witnessed: CHOICEPOINT INC., as a Lessee By: /s/ Mary Young By: /s/ David E. Trine ------------------------------- ------------------------------------ Name: Mary Young Name: David E. Trine ------------------------ ------------------------------- Title: Treasurer ------------------------------- By: /s/ Kathleen Watkins ------------------------------- Name: Kathleen Watkins ------------------------ LEASE S-1 AGREEMENT ATLANTIC FINANCIAL GROUP, LTD., as Lessor By: Atlantic Financial Managers, Inc., its General Partner Witnessed: By: /s/ Pattie Keath By: /s/ Stephen Brookshire ---------------------------- ----------------------------------- Name: Pattie Keath Name: Stephen Brookshire Title: President By: /s/ Mark Lampe ---------------------------- Name: Mark Lampe ----------------------- LEASE AGREEMENT S-2 STATE OF GEORGIA ) ) ss.: COUNTY OF FULTON ) The foregoing Lease Agreement was acknowledged before me, the undersigned Notary Public, in the County of Fulton, GA, this 29th day of August, 2001, by David E. Trine as Treasurer, of CHOICEPOINT INC., a Georgia corporation, on behalf of the corporation. [Notarial Seal] /s/ Laura K. Peterson --------------------------------------- Notary Public My commission expires: June 24, 2004 ------------------ LEASE AGREEMENT N-1 STATE OF TEXAS ) ) ss.: COUNTY OF DALLAS ) The foregoing Lease Agreement was acknowledged before me, the undersigned Notary Public, in the County of Dallas, TX, this 28th day of August, 2001, by Stephen S. Brookshire as President of Atlantic Financial Group, Ltd., on behalf of such partnership. [Notarial Seal] /s/ Lisa M. Williams --------------------------------------- Notary Public My commission expires: 12-17-2001 ------------------ LEASE AGREEMENT N-2 Recording requested by EXHIBIT A TO and when recorded mail to: THE LEASE ------------ - ---------------------------- - ---------------------------- - ---------------------------- - ---------------------------- LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE THIS LEASE SUPPLEMENT NO. __ (this "Lease Supplement") dated as of [ ], between ATLANTIC FINANCIAL GROUP, LTD., as lessor (the "Lessor"), and [CHOICEPOINT INC., a Georgia corporation,] as lessee (the "Related 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 Master Agreement, dated as of August 29, 2001 (as amended and supplemented from time to time, the "Master Agreement"), among ChoicePoint Inc., as Guarantor, the Lessees named therein, Lessor, the financial institutions party thereto, as Lenders and SunTrust Bank, as Agent; and the rules of interpretation set forth in Appendix A to the Lease shall apply to this Lease Supplement. 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 shall be subject to the terms and provisions of the Lease and Lessor hereby grants, conveys, transfers and assigns to the A-1 Related Lessee those interests, rights, titles, estates, powers and privileges provided for in the Lease with respect to the Subject Property. SECTION 3. Amendments to Lease with Respect to Subject Property. Effective upon the execution and delivery of this Lease Supplement by Lessor and the Related Lessee, the following terms and provisions shall apply to the Lease with respect to the Subject Property: [Insert Applicable Sections per Local Law as contemplated by the Master Agreement] SECTION 4. Recourse Deficiency Percentage. The Recourse Deficiency Percentage with respect to the Subject Property is ___%. SECTION 5. 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 6. 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. SECTION 7. Documentary Conventions. The Documentary Conventions shall apply to this Lease Supplement. A-2 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. Witnessed: ATLANTIC FINANCIAL GROUP, LTD., as the Lessor By: By: Atlantic Financial Managers, --------------------------- Inc., its General Partner Name: By: --------------------------------- By: --------------------------- Name: Name: Title: Witnessed: [CHOICEPOINT INC.], as Related Lessee By: --------------------------------- By: --------------------------- Name: Name: Title: By: --------------------------- Name: S-1 STATE OF _________________ ) ) ss.: COUNTY OF ________________ ) The foregoing Lease Supplement was acknowledged before me, the undersigned Notary Public, in the County of ______________, ____ ____, this _____ day of __________, _______________, by _____________________, as ____________________ of Atlantic Financial Group, Ltd., on behalf of such partnership. [Notarial Seal] --------------------------------------- Notary Public My commission expires: ------------------ N-1 STATE OF _________________ ) ) ss.: COUNTY OF ________________ ) The foregoing Lease Supplement was acknowledged before me, the undersigned Notary Public, in the County of ______________, ___ ____, this _____ day of __________, __________, by ___________, as _____________, of [ChoicePoint Inc., a Georgia] corporation, on behalf of the corporation. [Notarial Seal] --------------------------------------- Notary Public My commission expires: ------------------ N-2 Receipt of this original counterpart of the foregoing Lease Supplement is hereby acknowledged as of the date hereof. SUNTRUST BANK, as the Agent By: ------------------------------- Name: Title: S-3 EX-10.3 5 g72515ex10-3.txt GUARANTY AGREEMENT DATED AUGUST 29, 2001 EXHIBIT 10.3 ================================================================================ GUARANTY AGREEMENT from CHOICEPOINT INC. Dated as of August 29, 2001 ================================================================================ TABLE OF CONTENTS
Page ---- SECTION 1. Guaranty........................................1 SECTION 2. Bankruptcy......................................2 SECTION 3. Continuing Guaranty.............................3 SECTION 4. Reinstatement...................................3 SECTION 5. Certain Actions.................................3 SECTION 6. Application.....................................3 SECTION 7. Waiver..........................................4 SECTION 8. Assignment......................................4 SECTION 9. Miscellaneous...................................4
GUARANTY AGREEMENT THIS GUARANTY AGREEMENT, dated as of August 29, 2001 (as amended or otherwise modified from time to time, this "Guaranty"), is made by CHOICEPOINT INC., a Georgia corporation ("Guarantor"). WITNESSETH: WHEREAS, ChoicePoint Inc., as Guarantor, certain Subsidiaries of ChoicePoint Inc., that are or may become party thereto, as Lessees, Atlantic Financial Group, Ltd., as Lessor, the financial institutions party thereto, as Lenders, and SunTrust Bank, as Agent, have entered into that certain Master Agreement, dated as of August 29, 2001 (as it may be modified, amended or restated from time to time as and to the extent permitted thereby, the "Master Agreement"; and, unless otherwise defined herein, terms which are defined or defined by reference in the Master Agreement (including Appendix A thereto) shall have the same meanings when used herein as such terms have therein); and WHEREAS, it is a condition precedent to the Funding Parties consummating the transactions to be consummated on the Initial Closing Date that the Guarantor execute and deliver this Guaranty; and WHEREAS, it is in the best interests of the Guarantor that the transactions contemplated by the Master Agreement be consummated on the Initial Closing Date; and WHEREAS, this Guaranty, and the execution, delivery and performance hereof, have been duly authorized by all necessary corporate action of Guarantor; and WHEREAS, this Guaranty is offered by the Guarantor as an inducement to the Funding Parties to consummate the transactions contemplated in the Master Agreement, which transactions, if consummated, will be of benefit to Guarantor; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor hereby agrees as follows: SECTION 1. Guaranty. Guarantor hereby unconditionally guarantees to the Agent and the Funding Parties the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, and the full and prompt performance, of all of the Liabilities (as hereinafter defined), including rent, interest and Yield on any such Liabilities, whether accruing before or after any bankruptcy or insolvency case or proceeding involving Guarantor, any Lessee or any other Person and, if rent, interest or Yield on any portion of such obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, including such rent, interest and earnings as would have accrued on any such portion of such obligations if such case or proceeding had not commenced, and further agrees to pay all reasonable expenses (including reasonable attorneys' fees and legal expenses) actually paid or incurred by each of the Funding Parties in endeavoring to collect the Liabilities, or any part thereof, and in enforcing this Guaranty. Notwithstanding the foregoing, during the Construction Term for any Leased Property, only the Lessor shall be entitled to make a claim under this Guaranty for Liabilities related to such Leased Property. The term "Liabilities", as used herein, shall mean all of the following, in each case howsoever created, arising or evidenced, whether direct or indirect, joint or several, absolute or contingent, or now or hereafter existing, or due or to become due: (i) all amounts payable by the Lessees or the Construction Agent to the Agent and the Funding Parties under the Lease (including, without limitation, Basic Rent, Supplemental Rent and the Recourse Deficiency Amount), the Master Agreement, the Construction Agency Agreement or any other Operative Document, and (ii) all principal of the Note and interest accrued thereon, and all additional amounts and other sums at any time due and owing, and required to be paid, to the Funding Parties under the terms of the Master Agreement, the Loan Agreement, the Construction Agency Agreement, the Assignments of Lease and Rents, the Mortgages, the Note or any other Operative Document; provided, however, that the Guarantor will not be obligated to pay to the Agent and Funding Parties under this Guaranty any amounts greater than the Lessees and the Construction Agent would have had to pay to the Agent and the Funding Parties under the Lease, the Master Agreement, the Construction Agency Agreement and the other Operative Documents assuming that such documents were enforced in accordance with their terms (and without giving effect to any discharge or limitation thereon resulting or arising by reason of the bankruptcy or insolvency of a Lessee), plus all actual and reasonable costs of enforcing this Guaranty. By way of extension but not in limitation of any of its other obligations hereunder, Guarantor stipulates and agrees that if any foreclosure proceedings are commenced with respect to any Leased Property and result in the entering of a foreclosure judgment, any such foreclosure judgment, to the extent related to the Liabilities and payable to any of the Funding Parties, shall be treated as part of the Liabilities, and Guarantor unconditionally guarantees the full and prompt payment of such judgment. SECTION 2. Bankruptcy. Guarantor agrees that, in the event any bankruptcy, reorganization or insolvency proceeding shall be instituted by or against Guarantor and, if instituted against Guarantor, shall not be dismissed or stayed for a period of sixty (60) days, and if such event shall occur at a time when any of the Liabilities may not then be due and payable, Guarantor will pay to the Funding Parties forthwith the full amount which would be payable hereunder by Guarantor if all Liabilities were then due and payable. 2 SECTION 3. Continuing Guaranty. THIS GUARANTY SHALL IN ALL RESPECTS BE A CONTINUING, ABSOLUTE AND UNCONDITIONAL GUARANTY OF PROMPT AND COMPLETE PAYMENT AND PERFORMANCE (AND NOT MERELY OF COLLECTION), AND SHALL REMAIN IN FULL FORCE AND EFFECT (NOTWITHSTANDING, WITHOUT LIMITATION, THE DISSOLUTION OF GUARANTOR) UNTIL THE TERMINATION OF THE COMMITMENTS AND THE FULL AND FINAL PAYMENT OF ALL OF THE LIABILITIES. SECTION 4. Reinstatement. Guarantor further agrees that, if at any time all or any part of any payment theretofore applied to any of the Liabilities is or must be rescinded or returned for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of Guarantor or any Lessee), such Liabilities shall, for the purposes of this Guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application, and this Guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application had not been made. SECTION 5. Certain Actions. The Funding Parties may, from time to time at their discretion and without notice to Guarantor (but subject to the terms of the other Operative Documents), take any or all of the following actions without impairing Guarantor's obligations hereunder: (a) retain or obtain (i) a security interest in any Lessee's interests in the Lease or the Leased Property and (ii) a lien or a security interest hereafter granted by any Person upon or in any property, in each case to secure any of the Liabilities or any obligation hereunder; (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the Guarantors, with respect to any of the Liabilities; (c) extend or renew for one or more periods (regardless of whether longer than the original period), or release or compromise any obligation of Guarantor hereunder or any obligation of any nature of any other obligor (including, without limitation, the Lessor and the Lessees) with respect to any of the Liabilities; (d) release or fail to perfect its Lien upon or security interest in, or impair, surrender, release or permit any substitution or exchange for, all or any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (regardless of whether longer than the original period) or release or compromise any obligations of any nature of any obligor with respect to any such property; and (e) resort to Guarantor for payment of any of the Liabilities, regardless of whether the Agent or any other Person shall have resorted to any property securing any of the Liabilities or any obligation hereunder or shall have proceeded against any Lessee or any other obligor primarily or secondarily obligated with respect to any of the Liabilities (all of the actions referred to in this clause (e) being hereby expressly waived by Guarantor). SECTION 6. Application. Any amounts received by any Funding Party from whatever source on account of the Liabilities shall be applied by it toward the payment of such of the Liabilities, and in such order of application, as is set forth in the Operative Documents. 3 SECTION 7. Waiver. Guarantor hereby expressly waives: (a) notice of the acceptance of this Guaranty; (b) notice of the existence or creation or non-payment of all or any of the Liabilities; (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever; and (d) all diligence in collection of or realization upon the Liabilities or any thereof, any obligation hereunder, or any security for or guaranty of any of the foregoing. SECTION 8. Assignment. Subject to Section 6 of the Master Agreement, each Funding Party may, from time to time, whether before or after any discontinuance of this Guaranty, at its sole discretion and without notice to Guarantor, assign or transfer any or all of its portion of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this Guaranty, and each and every such immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of such assignee's or transferee's interest in the Liabilities, be entitled to the benefits of this Guaranty to the same extent as if such assignee or transferee were such Funding Party. SECTION 9. Miscellaneous. No delay in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. No action permitted hereunder shall in any way affect or impair any Funding Party's rights or Guarantor's obligations under this Guaranty. For the purposes of this Guaranty, Liabilities shall include all of the obligations described in the definition thereof, notwithstanding any right or power of any Lessee or the Lessor or anyone else to assert any claim or defense (other than final payment or full performance) as to the invalidity or unenforceability of any such obligation, and no such claim or defense shall affect or impair the obligations of Guarantor hereunder. Guarantor hereby acknowledges that there are no conditions to the effectiveness of this Guaranty. This Guaranty shall be binding upon Guarantor and upon Guarantor's successors and permitted assigns; and all references herein to Guarantor shall be deemed to include any successor or successors thereof, whether immediate or remote, to such Person; provided that Guarantor shall not assign its obligations hereunder without the prior written consent of the Funding Parties. The Documentary Conventions shall apply to this Guaranty. 4 IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed and delivered as of the date first above written. CHOICEPOINT INC. By: /s/ David E. Trine -------------------------------------- Name Printed: David E. Trine ------------------------- Title: Treasurer -------------------------------- S-1 EX-10.4 6 g72515ex10-4.txt CONSTRUCTION AGREEMENT DATED AUGUST 29, 2001 EXHIBIT 10.4 ================================================================================ CONSTRUCTION AGENCY AGREEMENT dated as of August 29, 2001 among ATLANTIC FINANCIAL GROUP, LTD. and CHOICEPOINT INC. as Construction Agent ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS...............................................................................1 1.1. Defined Terms.............................................................................1 ARTICLE II APPOINTMENT OF CONSTRUCTION AGENT.........................................................1 2.1. Appointment...............................................................................2 2.2. Acceptance; Construction..................................................................2 2.3. Commencement of Construction..............................................................2 2.4. Supplements to this Agreement.............................................................2 2.5. Term......................................................................................3 2.6. Identification of Properties; Construction Documents......................................3 2.7. Scope of Authority........................................................................3 2.8. Covenants of the Construction Agent.......................................................5 2.9. Insurance.................................................................................5 ARTICLE III THE BUILDINGS............................................................................12 3.1. Amendments; Modifications................................................................12 3.2. Casualty and Condemnation................................................................12 3.3. Indemnity................................................................................13 3.4. Construction Force Majeure Events........................................................13 ARTICLE IV PAYMENT OF FUNDS.........................................................................15 4.1. Funding of Property Acquisition Costs and Property Buildings Costs.......................15 ARTICLE V CONSTRUCTION AGENCY EVENTS OF DEFAULT....................................................15 5.1. Construction Agency Events of Default....................................................15 5.2. Damages..................................................................................16 5.3. Remedies; Remedies Cumulative............................................................16 5.4. Limitation on Construction Agent's Recourse Liability....................................18 5.5. Construction Agent's Right to Purchase...................................................19 5.6. Construction Return Procedures...........................................................19 5.7. Option to Remarket.......................................................................20 5.8. Rejection of Sale........................................................................23 5.9. Return of Leased Property................................................................23 ARTICLE VI NO CONSTRUCTION AGENCY FEE...............................................................24 6.1. Lease as Fulfillment of Lessor's Obligations.............................................24 ARTICLE VII LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS.............................................24 7.1. Exercise of the Lessor's Rights..........................................................24
i 7.2. Lessor's Right to Cure Construction Agent's Defaults.....................................24 ARTICLE VIII MISCELLANEOUS............................................................................25 8.1. Documentary Conventions..................................................................25 8.2. Successors and Assigns...................................................................25
EXHIBITS Exhibit A Form of Supplement to Construction Agency Agreement
ii CONSTRUCTION AGENCY AGREEMENT CONSTRUCTION AGENCY AGREEMENT, dated as of August 29, 2001 (as amended, supplemented or otherwise modified from time to time, this "Agreement"), between ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership, (the "Lessor"), and CHOICEPOINT INC., a Georgia corporation ("ChoicePoint", and in its capacity as construction agent, the "Construction Agent"). PRELIMINARY STATEMENT A. Lessor, ChoicePoint, certain subsidiaries of ChoicePoint that may become signatories thereto, the Lenders signatory thereto and SunTrust Bank, as agent for such Lenders (in such capacity, the "Agent") are parties to that certain Master Agreement, dated as of August 29, 2001 (as amended, supplemented or otherwise modified from time to time pursuant thereto, the "Master Agreement"). B. Subject to the terms and conditions hereof, (i) the Lessor desires to appoint ChoicePoint as the Construction Agent to act as its sole and exclusive agent for the identification and acquisition of the Land pursuant to the Master Agreement and construction of the Buildings in accordance with the Plans and Specifications and pursuant to the Master Agreement, and (ii) the Construction Agent desires, for the benefit of the Lessor, to cause the Buildings to be constructed in accordance with the Plans and Specifications and pursuant to the Master Agreement and this Agreement, in each case in accordance with the terms herein set forth. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS 1.1. Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in Appendix A to the Master Agreement. ARTICLE II APPOINTMENT OF CONSTRUCTION AGENT 2.1. Appointment. Pursuant to and subject to the terms and conditions set forth herein and in the Master Agreement and the other Operative Documents, the Lessor hereby irrevocably designates and appoints ChoicePoint as the Construction Agent to act as its exclusive agent for (i) the identification and acquisition from time to time of Land to be acquired or leased by the Lessor and leased or subleased to ChoicePoint and (ii) the construction of the Buildings in accordance with the Plans and Specifications on such Land. 2.2. Acceptance; Construction. ChoicePoint hereby unconditionally accepts the designation and appointment as Construction Agent. The Construction Agent will cause the Buildings to be constructed on the Land substantially in accordance with the Plans and Specifications and, in accordance with the Operative Documents, to be equipped in all material respects with all Applicable Law and insurance requirements, but using funds advanced by the Funding Parties (or its own funds, subject to reimbursement from Advances), insurance proceeds, condemnation awards and any Additional Amounts advanced by the Funding Parties (collectively, the "Funding Sources"). If a Leased Property will be leased by a Lessee other than ChoicePoint, ChoicePoint may appoint such Lessee as its sub-construction agent with respect to such Leased Property, provided that such appointment shall not affect ChoicePoint's obligations hereunder, which obligations shall be primary and shall remain in full force and effect. 2.3. Commencement of Construction. Subject to Construction Force Majeure Events, the Construction Agent hereby agrees, unconditionally and for the benefit of the Lessor, to cause Construction of a Building to commence on each parcel of Land as soon as is reasonably practicable, in its reasonable judgment, after the Closing Date in respect of such Land. For purposes hereof, Construction of a Building shall be deemed to commence on the date after the Closing Date for the related Leased Property (the "Construction Commencement Date") on which excavation for the foundation for such Building or any other Construction of such Building commences. Without limiting the foregoing, no phase of such Construction shall be undertaken until all permits required for such phase have been issued therefor. 2.4. Supplements to this Agreement. On the Closing Date of each parcel of Land, the Lessor and the Construction Agent shall each execute and deliver to the Agent a supplement to this Agreement in the form of Exhibit A to this Agreement, appropriately completed, pursuant to which the Lessor and the Construction Agent shall, among other things, each acknowledge and agree that the Construction of such parcel of Land will be governed by the terms of this Agreement. Following the execution and delivery of a supplement to this Agreement as provided above, such supplement and all supplements previously delivered under this Agreement shall constitute a part of this Agreement. On or prior to the Closing Date of each parcel of Land, the Construction Agent shall prepare and deliver to the Lessor and the Agent a construction budget (the "Construction Budget") for the related Leased Property, setting forth in reasonable detail the budget for the Construction of the proposed Building on such Land in accordance with the Plans and Specifications therefor, and all related costs including the capitalized interest and Yield expected to accrue during the related Construction Term; such Construction Budget shall 2 include a line item for the amount of self-insurance or deductibles applicable to such Leased Property. 2.5. Term. This Agreement shall commence on the date hereof and shall terminate with respect to any given Leased Property upon the first to occur of: (a) payment by the Lessee of the Leased Property Balance and termination of the Lease with respect to such Leased Property in accordance with the Lease; (b) the expiration or earlier termination of the Lease; (c) termination of this Agreement pursuant to Article V hereof; (d) the Completion Date for such Leased Property and the completion of all punch list items as set forth in Section 2.8(d); and (e) the payment by the Construction Agent of the Leased Property Balance or the Construction Failure Payment with respect to such Leased Property pursuant to this Agreement. 2.6. Identification of Properties; Construction Documents. The Construction Agent may execute any of its duties and obligations under this Agreement by or through agents, contractors, developers, Affiliates, employees or attorneys-in-fact, and the Construction Agent shall enter into such agreements with architects and contractors as the Construction Agent deems necessary or desirable for the construction of the Buildings pursuant hereto (the "Construction Documents"); provided, however, that no such delegation shall limit or reduce in any way the Construction Agent's duties and obligations under this Agreement; provided, further, that contemporaneously with the execution and delivery of a Construction Document, the Construction Agent will execute and deliver to the Lessor the Security Agreement and Assignment, pursuant to which the Construction Agent assigns to the Lessor, among other things, all of the Construction Agent's rights under and interests in such Construction Documents. Each construction contract shall be with a reputable general contractor with experience in constructing projects that are similar in scope and type to the proposed Building, and shall provide for a guaranteed maximum project cost, at least 10% retainage and, except for the Leased Property located in Fulton County, Georgia, the delivery of a performance bond. 2.7. Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Construction Agent's obligations 3 hereunder with respect to the Leased Properties acquired or leased by the Lessor, including, without limitation: (i) the identification and assistance with the acquisition or lease of Land in accordance with the terms and conditions of the Master Agreement; (ii) all design and supervisory functions relating to the construction of the Buildings and performing all engineering work related to the construction of the Buildings; (iii) negotiating and entering into all contracts or arrangements to procure the equipment and services necessary to construct the Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices; (iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law, from all Governmental Authorities in connection with the construction and the development of the Leased Property on the Land in accordance with the Plans and Specifications; (v) maintaining all books and records with respect to the construction, operation and management of the Leased Properties; and (vi) performing any other acts necessary or appropriate in connection with the identification, and acquisition (or leasing) and development of the Land and construction of the Buildings in accordance with the Plans and Specifications, and all other functions typically undertaken for the construction and development of similar properties. (b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Any contract entered into by the Construction Agent or any of its Affiliates or agents not meeting the requirements of the foregoing sentence shall be ineffective. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent's expense, to permit the Construction Agent to perform its duties hereunder. (c) Subject to the terms and conditions of this Agreement and the other Operative Documents, the Construction Agent shall have sole management and control over the means, methods, sequences and procedures with respect to the Construction. The parties agree that the Construction Agent shall be in possession and control of each Leased Property during the Construction Term therefor. 4 2.8. Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will, using the Funding Sources: (a) following the Construction Commencement Date for each parcel of Land, cause construction of a Building on such Land to be prosecuted diligently and without undue interruption substantially in accordance with the Plans and Specifications for such Land, in accordance with the Construction Budget for such Leased Property and in compliance in all material respects with all Applicable Law and insurance requirements; (b) notify the Lessor and the Agent in writing not less than five (5) Business Days after the occurrence of each Construction Force Majeure Event; (c) take all reasonable and practical steps to cause the Completion Date for such Leased Property to occur on or prior to the Scheduled Construction Termination Date for such Leased Property, and cause all Liens (including, without limitation, Liens or claims for materials supplied or labor or services performed in connection with the construction of the Buildings), other than Permitted Liens and Lessor Liens, to be discharged; (d) following the Completion Date for each Leased Property, cause all outstanding punch list items with respect to the Buildings on such Leased Property to be completed within sixty (60) days after said Completion Date; (e) at all times during Construction, cause all title to all personalty financed by the Lessor on or within such Leased Property to be and remain vested in the Lessor and cause to be on file with the applicable filing office or offices all necessary documents under Article 9 of the Uniform Commercial Code to perfect such title free of all Liens other than Permitted Liens, it being understood and acknowledged that such Lessor's rights, title and interest in and to said personalty have been assigned to the Agent pursuant to the Operative Documents; (f) not enter into any agreements or arrangements with any Person (other than the Funding Parties pursuant to the Operative Documents) that would result in any claim against, or liability of, the Agent or any Funding Party resulting from the fact that any Leased Property is not completed on or prior to the Scheduled Construction Termination Date therefor; and (g) take all reasonable and practical steps to minimize the disruption of the construction process arising from Construction Force Majeure Events. 2.9. Insurance. 5 (a) Insurance by the Construction Agent: The Construction Agent shall cause to be procured with proceeds of Advances pursuant to, and subject to the terms and conditions of, the Operative Documents and maintain in full force and effect during the Construction Term insurance policies with insurance companies authorized to do business in each jurisdiction in which the Leased Properties under Construction are located with a Best Insurance Reports rating of "A" or better and a financial size category of "VIII" or higher, or that are pre-approved by the Lessor, with limits and coverage provisions as set forth below. (i) General Liability Insurance. Liability insurance on an occurrence basis for the Construction Agent's and Lessor's liability arising out of claims for personal injury (including bodily injury and death) and property damage. Such insurance shall provide coverage for products-completed operations, contractual and personal injury liability with a $1,000,000 limit per occurrence for combined bodily injury and property damage with policy aggregates of $2,000,000 (other than products-completed operations) and $1,000,000 for products-completed operations. A maximum deductible or self- insured retention of $5,000 per occurrence shall be allowed with respect to such insurance to the extent relating to the Leased Properties. (ii) Automobile Liability Insurance. Automobile liability insurance for the Construction Agent's and Lessor's liability arising out of claims for bodily injury and property damage covering all leased, non-owned and hired vehicles used in the performance of the Construction Agent's obligations under this Agreement with a $1,000,000 limit per accident for combined bodily injury and property damage and containing appropriate no-fault insurance provisions wherever applicable. A maximum deductible or self-insured retention of $5,000 per occurrence shall be allowed with respect to such insurance to the extent relating to the Leased Properties. (iii) Excess Liability Insurance. Liability insurance in excess of the insurance coverage required in clauses (i) and (ii) above with a limit of $5,000,000 per occurrence and in the aggregate. (iv) Builder's Risk Insurance. Property damage insurance on an "all risk" basis insuring the Construction Agent and Lessor, as their interests may appear, including coverage against loss or damage from the perils of earth movement (including but not limited to earthquake, landslide, subsidence and volcanic eruption), flood, strike, riot and civil commotion. a. Property Covered. The builder's risk insurance shall provide coverage for (i) the Buildings, structures, machinery, equipment, facilities, fixtures, supplies and other property constituting a part of the Leased Property under Construction, (ii) property of others in the care, custody or control of the Construction Agent in connection with the Leased Property, but not contractor's 6 tools, machinery, plant and equipment including spare parts and accessories not destined to become a permanent part of the Leased Property, (iii) all preliminary works, temporary works and interconnection works and (iv) foundations and other property below the surface of the ground. b. Additional Coverages. The builder's risk policy shall insure (i) the cost (including labor) of preventive measures to reduce or prevent further loss, (ii) inland transit with sublimits sufficient to insure the largest single shipment to or from the Leased Property site from anywhere within North America, (iii) attorney's fees, engineering and other consulting costs, and permit fees directly incurred in order to repair or replace damaged insured property in the amount of $2,500, (iv) expediting expenses (defined as reasonable extra costs incurred after an insured loss to make temporary repairs and expedite the permanent repair of the damaged property) with a sublimit in the amount of $25,000, (v) off-site storage to insure the full replacement value of any property or equipment not stored on the Leased Property site with a sublimit of $150,000, and (vi) demolition expenses, removal of undamaged portion, and increased cost of construction due to operation of laws or codes with a sublimit of twenty-five percent (25%) of the amount of the physical loss or damage. c. Special Clauses. The builder's risk policy shall include (i) a 72 hour flood/windstorm/earthquake clause, (ii)unintentional errors and omissions clause, (iii) a requirement that the insurer pay losses within 60 days after receipt of an acceptable proof of loss, and (iv) an extension clause allowing the policy period to be extended up to 60 days without modification to the terms and conditions of the policy and payment of the premium on a pro-rata basis. d. Prohibited Exclusions. The builder's risk policy shall not contain any (i) coinsurance provisions, (ii) exclusion for ensuing direct physical loss or damage resulting from freezing, (iii) exclusion for physical loss or damage covered under any guarantee or warranty arising out of an insured peril, or (iv) exclusion for resultant physical loss or damage caused by ordinary wear and tear, gradual deterioration, faulty workmanship, [design] or materials. e. Sum Insured. The builder's risk policy shall (i) be on a completed value form, (ii) insure 100% of the completed insurable value of the Building(s), (iii) value losses at replacement cost, without deduction for physical depreciation or obsolescence including custom duties, taxes and fees and (iv) insure loss or damage from earth movement and flood with separate sublimits of $15,000,000. f. Deductible. The builder's risk insurance may have a deductible not in excess of $5,000. 7 (v) Delayed Startup Insurance. Delayed startup coverage insuring the Lessor and covering the Lessor's accrued and capitalized interest and Yield for a six month period as a result of loss or damage insured by the builder's risk insurance resulting in a delay in completion of the Building(s) beyond their anticipated date of completion. Such insurance shall (a) have a deductible of not greater than 10 days per occurrence during the Construction Term, (b) have an indemnity period not less than six months, (c) cover loss sustained when access to the Leased Property site is prevented due to an insured peril at premises in the vicinity of the Leased Property site with a sublimit of $27,500, (d) cover loss sustained due to the action of a public authority preventing access to the Leased Property site due to imminent or actual loss or destruction arising from an insured peril at premises in the vicinity of the Leased Property site with a sublimit of $27,500, and (e) not contain any form of a coinsurance provision or include a waiver of such provisions. (vi) Endorsements. All policies of insurance required to be maintained by the Construction Agent shall be endorsed as follows. a. To name the Lessor as the loss payee with respect to all property insurance; b. To name the Lessor, the Lenders and the Agent as additional insureds with respect to all liability policies; c. To provide a severability of interests and cross liability clause; d. That the insurance shall be primary and not excess to or contributing with any insurance or self-insurance maintained by the Lessor or the additional insureds. e. That in respect of the interests of the Lessor, the Lenders and the Agent, such policies shall not be invalidated by any fraud, action, inaction or misrepresentation of the Construction Agent or any other Person, and shall insure each of the Lessor, the Lenders and the Agent regardless of any breach of any terms, conditions or warranty contained in any policy by the Construction Agent or any other Person. (vii) Waiver of Subrogation. The Construction Agent hereby waives any and every claim for recovery from the Lessor, the Lenders and the Agent for any and all loss or damage covered by any of the insurance policies to be maintained under this Agreement to the extent that such loss or damage is recovered under any such policy. If the foregoing waiver will preclude the assignment of any such claim to the extent of such 8 recovery, by subrogation (or otherwise), to an insurance company (or other person), the Construction Agent (or other appropriate party) shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance policy) and shall cause each such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver. (b) Conditions. (i) Adjustment of Losses. Losses, if any, with respect to any Leased Property under any damage policies required to be carried under this Section 2.9 shall be adjusted with the insurance companies, including the filing of appropriate proceedings, as follows: (x) so long as no Construction Agency Event of Default shall have occurred and be continuing, and provided that the Construction Agent is required, or has agreed, to repair the damage or if the purchase option has been exercised, such losses will be adjusted by the Construction Agent, (y) if any Construction Agency Event of Default shall have occurred and be continuing or Construction Force Majeure Event declared, or if the Construction Agent is not required to, and has not agreed to, repair the damage, such losses shall be adjusted by the Lessor with the consent of the Construction Agent (which consent shall not be unreasonably withheld or delayed). The party which shall be entitled to adjust losses may appear in any proceeding or action to negotiate, prosecute, adjust or appeal any claim for any award, compensation or insurance payment on account of any Casualty at such party's reasonable request, and the other party shall participate in any such proceeding, action, negotiation, prosecution or adjustment. The Construction Agent may incur no expenses with respect to loss adjustment without the prior consent, not to be unreasonably withheld, of the Lessor. Adjustment expenses shall be funded through Advances. The parties hereto agree that this Agreement shall control the rights of the parties hereto in and to any such award, compensation or insurance payment relating to any Casualty affecting a Construction Land Interest. (ii) Application of Insurance Proceeds. All proceeds of insurance maintained pursuant to this Section 2.9 on account of any damage or destruction of any Leased Property (or part thereof) subject to Construction shall be paid to Lessor, provided that (i) if no Construction Agency Event of Default shall have occurred and (ii) subject to Section 3.4, the Construction Agent has undertaken to repair the damage and has demonstrated to the reasonable satisfaction of the Lessor that the application of such insurance proceeds (including, without limitation, delay in start up coverage), together with the remaining Commitment and any increase to the Commitments effected pursuant to Section 3.2, are sufficient to cause the construction to be completed on or prior to the Scheduled Construction Termination Date, such funds shall be held by Lessor in a segregated account and disbursed to the Construction Agent to pay costs incurred by the 9 Construction Agent to effect the repair of the Leased Property. If the Construction cannot be completed on or prior to the Scheduled Construction Termination Date, the parties agree to discuss the issue of disbursement of insurance proceeds to the Construction Agent in good faith and after such discussion the Lessor shall make a determination in the exercise of its sole discretion. Any proceeds of insurance paid to Lessor pursuant in this Section 2.9, not used to repair the Leased Property and held by Lessor shall be applied to the account of Construction Agent to reduce the Lease Balance. (iii) Additional Insurance. Any additional insurance obtained by the Construction Agent or the Lessor shall provide that it shall not interfere with or in any way limit the insurance described in this Section 2.9 or increase the amount of any premium payable with respect to any insurance described in such Section. The proceeds of any such additional insurance will be for the account of the party maintaining such additional insurance. (iv) Payment of Premiums. The Construction Agent shall cause to be paid (including, in the case of insurance required under this Section 2.9, with the proceeds of Advances and capitalized as part of Permitted Lease Balance), all premiums for the insurance required hereunder. The Construction Agent shall renew or replace, or cause to be renewed or replaced, each insurance policy required hereunder prior to the expiration date thereof for the duration of the Construction Term. (v) Policy Cancellation and Change. All policies of insurance required to be maintained pursuant to this Section 2.9 shall be endorsed so that if at any time they are cancelled, or their coverage is reduced (by any party including the insured) so as to affect the interests of the Lessor, such cancellation or reduction shall not be effective as to the Lessor for 30 days, except for non-payment of premium which shall be for 10 days, after receipt by the Lessor of written notice from such insurer of such cancellation or reduction. (vi) Miscellaneous Policy Provisions. All property damage and delayed startup insurance policies, (i) shall not include any annual or term aggregate limits of liability or clause requiring the payment of additional premium to reinstate the limits after loss except for insurance covering the perils of flood, earth movement, sabotage and terrorism, (ii) shall include the Lessor as a named insured as its interest may appear, and (iii) shall include a clause requiring the insurer to make final payment on any claim within 60 days after the submission of proof of loss and its acceptance by the insurer. (vii) Separation of Interests. All policies shall insure the interests of the Lessor regardless of any breach or violation by the Construction Agent or any other Person of warranties, declarations or conditions contained in such policies, any action or inaction of 10 the Construction Agent or others, or any foreclosure relating to the Leased Property or any change in ownership of all or any portion of the Leased Property. (viii) Acceptable Policy Terms and Conditions. All policies of insurance required to be maintained pursuant to this Section 2.9 shall contain terms and conditions reasonably acceptable to the Lessor. (c) Evidence of Insurance. On the related Construction Commencement Date and on an annual basis at least 10 days prior to each policy anniversary, the Construction Agent shall furnish, or shall cause to be furnished, the Lessor with (1) certificates of insurance or binders, in a form acceptable to the Lessor, evidencing all of the insurance required by the provisions of this Section 2.9. Such certificates of insurance/binders shall be executed by each insurer or by an authorized representative of each insurer. Such certificates of insurance/binders shall identify underwriters, the type of insurance, the insurance limits and the policy term and shall specifically list the special provisions enumerated for such insurance required by this Section 2.9. Upon request, the Construction Agent will promptly furnish the Lessor with copies of all insurance policies, binders and cover notes or other evidence of such insurance relating to the insurance required to be maintained hereunder. (d) Reports. Concurrently with the furnishing of the certification referred to in paragraph (c), the Construction Agent shall furnish, or cause to be furnished, the Lessor with a report of an independent broker, signed by an officer of the broker, stating that in the opinion of such broker, the insurance then carried or to be renewed is in accordance with the terms of this Section 2.9. In addition the Construction Agent will advise the Lessor in writing promptly of any default in the payment of any premium and of any other act or omission on the part of the Construction Agent which may invalidate or render unenforceable, in whole or in part, any insurance being maintained by the Construction Agent pursuant to this Section 2.9. (e) No Duty of Lessor to Verify or Review. No provision of this Section 2.9 or any provision of this Agreement or the other Operative Documents shall impose on the Lessor any duty or obligation to verify the existence or adequacy of the insurance coverage maintained by the Construction Agent, nor shall the Lessor be responsible for any representations or warranties made by or on behalf of the Construction Agent to any insurance company or underwriter. Any failure on the part of the Lessor to pursue or obtain the evidence of the insurance required by this Agreement from the Construction Agent and/or failure of the Lessor to point out any non- compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Agreement. Notwithstanding anything herein to the contrary, the Construction Agent shall not be responsible for the payment of any insurance deductible amounts. 11 ARTICLE III THE BUILDINGS 3.1. Amendments; Modifications. The Construction Agent may, subject to the conditions, restrictions and limitations set forth herein and in the Operative Documents (but not otherwise), at any time during the term hereof revise, amend or modify the Plans and Specifications and the related Construction Documents without the consent of the Lessor; provided, however, that the Lessor's prior written consent will be required in the following instances: (x) such revision, amendment or modification by its terms would result in the Completion Date of the Buildings occurring after the Scheduled Construction Termination Date, or (y) such revision, amendment or modification would result in the cost for such Leased Property exceeding the then remaining Commitments, minus the then remaining costs for completing each other Leased Property for which the Completion Date has not occurred, or increase the Construction Budget therefor, or (z) the aggregate effect of such revision, amendment or modification, when taken together with any previous or contemporaneous revision, amendment or modification to the Plans and Specifications for such Leased Property, would be to reduce the Fair Market Sales Value of such Leased Property in a material respect when completed. 3.2. Casualty and Condemnation. If at any time prior to the Completion Date with respect to any Building there occurs a Casualty or the Lessor or the Construction Agent receives notice of a Condemnation, then, in each case the Construction Agent shall promptly and diligently take all commercially reasonable and practical steps to cause the Construction of the related Building to be completed substantially in accordance with the Plans and Specifications and with the terms hereof, and cause the Completion Date to occur on or prior to the Scheduled Construction Termination Date. The Construction Agent shall use all insurance proceeds or Awards received by it with respect to such Casualty or Condemnation, as the case may be, to pay the construction costs incurred in connection with such rebuilding or restoration. The Lessor shall make all insurance proceeds or Awards received with respect to such Casualty or Condemnation available to the Construction Agent to reimburse the Construction Agent for, or to pay, all construction costs incurred in connection with such rebuilding or restoration. To the extent that such insurance proceeds are insufficient to pay such construction costs, such construction costs shall be paid with the proceeds of Advances made pursuant to the Master Agreement. In the event that the insurance proceeds or Awards, plus the remaining Commitments are insufficient to cover the costs of such rebuilding, then the Funding Parties shall be obligated to increase their Commitments (on a pro rata basis) in an aggregate amount equal to such deficiency, (any Advances made pursuant to such increase, called the "Additional Amounts") provided that (i) the unused fee on such increased Commitments and the interest rate and Lessor Rate on such Additional Amounts shall be at such rate as the Funding Parties and ChoicePoint mutually agree, (ii) the Construction Agent delivers an appraisal of the related Leased Property from the Appraiser that is satisfactory to the Agents and the Funding Parties, in 12 their sole discretion and (iii) each Funding Party has received all necessary credit approvals for such increase. In the event that Lessor does not make such insurance proceeds or Advances available, or the Commitments are not increased as set forth in the previous sentence, then notwithstanding any other provision of this Agreement, the Construction Agent may elect to return the affected Leased Property (including all insurance proceeds and condemnation awards with respect thereto) to the Lessor in accordance with Section 5.6 by delivering written notice of such election to the Agent within thirty (30) days of the related Casualty or Condemnation, in which event the Construction Agent shall not have any obligation to pay the Construction Failure Payment with respect to such Leased Property. 3.3. Indemnity. During the Construction Term for each Leased Property, the Construction Agent agrees to assume liability for, and to indemnify, protect, defend, save and hold harmless the Lessor on an After-Tax Basis, from and against, any and all Claims that may be imposed on, incurred by or asserted or threatened to be asserted, against the Lessor, whether or not the Lessor shall also be indemnified as to any such Claim by any other Person, in any way relating to or arising out of (i) any event, condition or circumstance within the Construction Agent's control,(ii) fraud, misapplication of funds, illegal acts or willful misconduct on the part of the Construction Agent, (iii) any event described in paragraph (f) of Article XII of the Lease with respect to the Construction Agent. As used in clause (i) of the foregoing sentence, the term "within the Construction Agent's control" shall mean caused by or arising from any failure by any Obligor to comply with any of its obligations under the Operative Documents (including its insurance obligations), any representation or warranty by any Obligor in any of the Operative Documents being inaccurate, any negligence or wilful misconduct of any Obligor, or any claim by any third party against the Lessor based upon the action or inaction of or by any Obligor; provided, however, that if such Claim is related to an inability or the failure to complete the construction of a Leased Property on or prior to Scheduled Construction Termination Date therefor and such Claim does not arise out of or result from events or circumstances described in the foregoing clause (ii) or (iii), the Construction Agent's liability shall be limited to an amount equal to the Construction Failure Payment. Any Claims that are incurred by any Indemnified Party for which the Construction Agent is not obligated to indemnify pursuant to this Section 3.3 or the Master Agreement shall, if requested by the Agent by written notice to Lessor be capitalized, and result in an increase to the Funded Amounts related to the relevant Leased Property (it being understood that any such increase shall be treated as an Additional Amount for the purposes of calculating Lessor Basic Rent and Lender Basic Rent). The foregoing indemnities are in addition to, and not in limitation of, the indemnities with respect to environmental claims set forth in Section 7.2 of the Master Agreement. The provisions of Section 7.3 of the Master Agreement shall apply to any amounts that the Construction Agent is requested to pay pursuant to this Section 3.3. 3.4. Construction Force Majeure Events. If a Construction Force Majeure Event that results in, or could reasonably be expected to result in, a Force Majeure Loss (including any losses that result from a Construction Force Majeure Event that prevents, or could reasonably be 13 expected to prevent, the Construction Agent from completing Construction prior to the Scheduled Construction Termination Date) occurs, the Construction Agent shall promptly provide the Lessor with written notice thereof within ten (10) Business Days of the Construction Agent's knowledge of the occurrence thereof (the "Construction Force Majeure Declaration"). Upon receipt of the Construction Force Majeure Declaration, Lessor and the Construction Agent shall consult with each other as to what steps, if any, are to be taken to remediate such Construction Force Majeure Event, including consulting as to the appropriateness of an extension of the Scheduled Construction Termination Date. The Construction Agent shall take all reasonable and practical steps to minimize the disruption of the construction process and all steps reasonably necessary to prevent further damage arising from such Construction Force Majeure Event. The Construction Agent shall be entitled to reimbursement from Lessor for any costs directly related to minimizing the disruption and to preventing further damage of such Construction Force Majeure Event through the proceeds of Fundings pursuant to, and subject to the terms and conditions of, the Master Agreement. The Construction Agent shall, within thirty (30) days of the delivery of the Construction Force Majeure Declaration, submit to the Lessor a budget detailing the costs that would be incurred in remediating such Construction Force Majeure Event and a schedule for effecting the same. The Construction Agent will commence such remediation only upon receipt of written authorization from the Lessor to do so, which authorization (or denial thereof) shall be given by written notice to Construction Agent not later than fifteen (15) Business Days after Lessor's receipt of the budget referred to in the preceding sentence. The Lessor in its sole discretion may elect to continue Construction and make Advances for such remediation or terminate this Agreement with respect to the affected Leased Property. If the Lessor elects to terminate this Agreement with respect to the affected Leased Property, subject to Construction Agent's right to purchase such Leased Property in accordance with Section 5.5 hereof, the Construction Agent shall within thirty (30) days of receipt of written notice of termination return the affected Leased Property to the Lessor in accordance with the procedures set forth in Section 5.6 and pay to the Lessor the Construction Failure Payment (subject to the last sentence of Section 3.2), in which event, Section 5.6 shall be applicable, or, if the Construction Agent exercises the Construction Default Remarketing Option, Section 5.7 shall be applicable. In the event the Lessor elects to continue Construction after receipt of a Construction Force Majeure Declaration, the Lessor shall make available to the Construction Agent, so long as no Construction Agency Event of Default shall have occurred and be continuing, all insurance proceeds payable to the Lessor with respect to such event to the extent necessary to remediate such event. 14 ARTICLE IV PAYMENT OF FUNDS 4.1. Funding of Property Acquisition Costs and Property Buildings Costs. (a) In connection with the acquisition or lease of any Land and during the course of the construction of the Buildings on any Land, the Construction Agent may request that the Lessor advance funds for the payment of Construction Costs, and the Lessor will comply with such request to the extent provided for under, and subject to the conditions, restrictions and limitations contained in, the Master Agreement and the other Operative Documents. (b) The proceeds of any funds made available to the Lessor to pay Construction Costs shall be made available to the Construction Agent in accordance with the Funding Request relating thereto and the terms of the Master Agreement. The Construction Agent will use such proceeds only to pay the acquisition, transaction and closing costs or improvement costs for Leased Properties set forth in the Funding Request relating to such funds. ARTICLE V CONSTRUCTION AGENCY EVENTS OF DEFAULT 5.1. Construction Agency Events of Default. If any one or more of the following events (each a "Construction Agency Event of Default") shall occur and be continuing: (a) the Construction Agent fails to apply any funds paid by, or on behalf of, the Lessor to the Construction Agent for Construction Costs to the payment of Construction Costs or improvements costs for such Leased Property; (b) subject to Construction Force Majeure Events, the Construction Commencement Date with respect to any Leased Property shall fail to occur for any reason on or prior to the date that is one year after the Closing Date with respect to such Leased Property; (c) the Completion Date with respect to any Leased Property shall fail to occur for any reason on or prior to the earlier of the Funding Termination Date and the Scheduled Construction Termination Date for such Leased Property; (d) any Event of Default shall have occurred and be continuing; or (e) the Construction Agent shall fail to observe or perform in any material respect any term, covenant or condition of this Agreement (except those specified in clauses (a) through (d) above), and such failure shall remain uncured for a period of thirty 15 (30) days after notice thereof to the Construction Agent, except that such thirty (30) day period shall be automatically extended for such additional period of time as is reasonably necessary to cure such default, if such default is capable of being cured but cannot, with reasonable diligence, be cured within such thirty (30) day period, provided that (i) the Construction Agent is in the process of diligently curing such default and (ii) such period shall not be extended for more than 90 days; then, in any such event, the Lessor may, in addition to the other rights and remedies provided for in this Article (but subject to the last sentence of Section 3.2), immediately terminate this Agreement as to any Leased Property or Properties or all of the Leased Properties, separately, successively or concurrently (all in Lessor's sole discretion) by giving the Construction Agent written notice of such termination, and upon the giving of such notice, this Agreement shall terminate as to such Leased Property or Properties or all of the Leased Properties (as the case may be) and all rights of the Construction Agent and, subject to the terms of the Operative Documents, all obligations of the Lessor under this Agreement with respect to such Leased Property or Properties or all of the Leased Properties (as the case may be) shall cease. The Construction Agent shall pay upon demand all reasonable costs, expenses, losses, expenditures and damages (including, without limitation, attorneys' fees and disbursements) actually incurred by or on behalf of the Lessor in connection with any Construction Agency Event of Default. 5.2. Damages. The termination of this Agreement pursuant to Section 5.1 shall in no event relieve the Construction Agent of its liability and obligations hereunder, all of which shall survive any such termination. 5.3. Remedies; Remedies Cumulative. (a) If a Construction Agency Event of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), 5.1(d) (other than an Event of Default under paragraph (f) or (g) of Article XII of the Lease or an Event of Default under paragraph (l) of Article XII of the Lease if such event occurs as a result of a hostile takeover) or 5.1(e) (other than as a result of Construction Agent's fraudulent or illegal acts, misapplication of funds or willful misconduct), then, in each case, the Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise. Lessor shall have the right to terminate this Agreement by giving Construction Agent written notice of such termination, and upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent to pay immediately upon receipt of notice from Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has the option to purchase the Leased Property in accordance with Section 5.5 hereof and the Construction Agent shall have the option to cause the Leased Property to be remarketed in accordance with Section 5.7 hereof. 16 In the event Construction Agent does not purchase the Leased Property pursuant to the terms hereof or the Construction Agent does not cause the Leased Property to be remarketed in accordance with Section 5.7 hereof, the related Lessee(s) shall return the Leased Property to Lessor within ten (10) Business Days in accordance with Section 5.6 hereof and, subject to the last sentence of Section 3.2, Lessor shall have the right to sell the Leased Property to an unaffiliated third party and to require Construction Agent to pay to Lessor, immediately upon receipt of the termination notice, cash in an amount equal to the Construction Failure Payment for all of the Construction Land Interests. The proceeds derived from any such sale, net of all sale costs, closing costs and carrying costs (including, without limitation, amounts expended by the Agent or any Funding Party to insure, protect, maintain or operate the Leased Property, sales, transfer and real property taxes, brokers' fees, legal fees, the insurance costs, interest and Yield, and survey costs), shall be distributed first, to Lessor in the amount of the difference between the Permitted Lease Balance and the Construction Failure Payment, if any, received by the Lessor, second, to the extent the Construction Agent has paid to the Lessor the Construction Failure Payment, to the Construction Agent to reimburse it to the extent of its payment of the Construction Failure Payment, and third, to the Lessor. (b) If a Construction Agency Event of Default shall have occurred and be continuing under Sections 5.1(a), 5.1(d) (as the result of an Event of Default under paragraph (f) of Article XII of the Lease) or 5.1(e) (as a result of the Construction Agent's fraudulent or illegal acts, misapplication of funds or willful misconduct), Lessor shall have the right to terminate this Agreement by giving Construction Agent written notice of such termination, and upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent to pay immediately upon receipt of notice from Lessor the sum of (i) the Permitted Lease Balance then outstanding and (ii) an amount equal to all insurance proceeds paid to Construction Agent following the occurrence of any Construction Force Majeure Event which were not applied by the Construction Agent or are not required to reimburse the Construction Agent for Construction Costs incurred in connection with such Construction Force Majeure Event, to uses permitted by this Agreement (and which are not otherwise included in clause (i) of this sentence). In addition, but subject to the Construction Agent's purchase right under Section 5.5 and the Construction Agent's right to remarket pursuant to Section 5.7, the Lessor may satisfy the foregoing obligation by a sale of the Leased Property and the proceeds derived from any such sale, net of all sale costs, closing costs and carrying costs (including, without limitation, amounts expended by the Agent or any Funding Party to insure, protect, maintain or operate the Leased Property, sales, transfer and real property taxes, brokers' fees, legal fees, the insurance costs, interest and Yield, and survey costs), shall be distributed first, to Lessor in the amount of the Permitted Lease Balance to the extent not previously paid by the Construction Agent, second, to the extent the Construction Agent has paid to the Lessor the Permitted Lease Balance, to the Construction Agent to reimburse it to the extent of its payment of the Permitted Lease Balance, but if no such payment was made, to the Lessor, and third to the Lessor. The Lessor shall have 17 all the rights and remedies afforded Lessor by Applicable Law and the Operative Documents. Upon payment to Lessor of the Lease Balance and any other amounts owing hereunder, Lessor shall convey the Leased Property to Construction Agent as though Construction Agent had exercised the purchase option under Section 5.5 hereof. If the Construction Agent does not purchase the Property or exercise the Construction Default Remarketing Option pursuant to Section 5.7, it shall return the Leased Property to the Lessor within ten (10) Business Days of the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof. (c) If a Construction Agency Event of Default shall have occurred and be continuing under Section 5.1(d) (as the result of an Event of Default under paragraph (l) of Article VII of the Lease if such event occurs as a result of a hostile takeover), then the Lessor shall have the right to terminate this Agreement by giving the Construction Agent written notice of such termination, and upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof, and Lessor shall have the right to require Construction Agent to return the Leased Property in accordance with Section 5.6 hereof, provided that the Construction Agent shall have no obligation to pay the Construction Failure Payment. (d) No failure to exercise and no delay in exercising, on the part of the Lessor any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement and in the other Operative Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 5.4. Limitation on Construction Agent's Recourse Liability. Subject to the last sentence of this Section 5.4 and the last sentence of Section 3.2, notwithstanding anything contained herein or in any other Operative Document to the contrary, upon the occurrence and during the continuance of a Construction Agency Event of Default with respect to any Leased Property described in Section 5.1(b), 5.1(c), 5.1(d) (other than an Event of Default under paragraph (f) or (g) of Article XII of the Lease) or 5.1(e), the aggregate maximum recourse liability of the Construction Agent with respect to such default to the Lessor or any Person claiming by, through or under the Lessor under the Operative Documents, shall be limited to the Construction Failure Payment for such Leased Property. The Construction Agent nonetheless acknowledges and agrees that (i) the Lessor shall be entitled to recover from the applicable Leased Property (including through any reletting and/or sale of such Leased Property or any portion thereof) the entire outstanding Permitted Lease Balance of such Leased Property (and, to the extent sales proceeds exceed the Permitted Lease Balance, amounts in excess of the Permitted Lease Balance as provided in Section 5.3(a) and (b) and Section 5.7(g)), all accrued and unpaid 18 interest, accrued Yield and other amounts then due and owing to the Lessor under the Operative Documents and all other costs and expenses of the Lessor incurred in connection with such Leased Property (including without limitation, any costs incurred in connection with the construction of the Building(s) and other improvements and/or any reletting or sale of such Leased Property or any portion thereof) from and after the date of such return and (ii) the foregoing recourse limitations are exclusive of any amounts due and owing under Article III hereof. If a Construction Agency Event of Default occurs due to the fraud, misapplication of funds, illegal acts or wilful misconduct on the part of the Construction Agent or any event described in paragraph (f) or (g) of Article XII of the Lease, the Construction Agent shall be obligated to pay the Permitted Lease Balance as set forth herein. 5.5. Construction Agent's Right to Purchase. If a Construction Agency Event of Default hereunder relates only to a specific Leased Property or specific Leased Properties but not all Leased Properties, the Construction Agent shall have the right, at its option, to cure such Construction Agency Event of Default by purchasing (a "Construction Purchase") such affected Leased Property or Properties for the Leased Property Balance(s) therefor from the Lessor within five (5) Business Days of the delivery of the notice of termination referred to in Section 5.3 (a) or (b) in accordance with the terms and subject to the conditions, restrictions and limitations of Section 14.5 of the Lease, in which case no Construction Agency Event of Default shall be deemed to have occurred hereunder for the purposes of the other Operative Documents. 5.6. Construction Return Procedures. In the case of any return of any Leased Property to the Lessor pursuant to Section 3.4 or Article V hereof (other than returns pursuant to Section 5.7 hereof)(a "Construction Return"), the Construction Agent shall, at its cost and expense, do each of the following on or prior to the return date specified by the Lessor in a written notice to the Construction Agent given at least ten (10) Business Days prior thereto: (a) the Construction Agent shall, on or prior to the return date, execute and deliver to the Lessor (or to the Lessor's designee): (i) a deed with respect to all of the interest of the Lessee and the Construction Agent in the Leased Property containing representations and covenants of grantor to the Lessor (or such other Person) solely regarding the absence of Liens (other than Lessor Liens and the Liens of the Operative Documents (other than Liens in favor of the Lessee)), (ii) an agreement granting easements and rights of way to such Leased Property as reasonably deemed necessary by the Lessor, (iii) a bill of sale without warranty (except as to the absence of liens other than Lessor Liens) with respect to all of the interest of the Lessee and the Construction Agent in all personalty and equipment financed by the Funding Parties and (iv) an assignment of such Construction Agent's entire interest in such Leased Property (which shall include an assignment of all such Construction Agent's right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with any Casualty, Condemnation or Construction Force Majeure Event affecting such Leased Property and an assignment of leases of such Leased Property), in the case of the documents referred to in clauses 19 (i), (ii) and (iv) in recordable form and otherwise in conformity with local custom and free and clear of any Liens other than Lessor Liens. (b) the Construction Agent shall, on the construction return date, pay over to the Agent (as assignee of the Lessor) any awards, compensation and insurance previously received by the Construction Agent in connection with such Leased Property which have not been applied in connection with the Construction, repair or maintenance of the Leased Property except such amounts as may be necessary to reimburse the Construction Agent for expenditures incurred in connection with such Construction, repair or maintenance during the Construction Term which have not been reimbursed; (c) the Construction Agent shall execute and deliver to the Lessor a statement of termination of this Agreement and each of the other Operative Documents with respect to the affected Leased Property to be executed by the Funding Parties and delivered to the Construction Agent; (d) the Construction Agent shall, on or prior to the return date, vacate the Leased Property and transfer possession of such Leased Property to the Lessor or any Person designated by the Lessor, in each case by surrendering the same into the possession of the Lessor or such Person, as the case may be, free and clear of all Liens (other than Lessor Liens and the liens of the Operative Documents) in compliance with all Applicable Law (including Environmental Laws); (e) on or prior to the return date, the Construction Agent shall deliver to the Lessor or any Person designated by the Lessor copies of all Construction Documents, permits, licenses, books and records regarding the maintenance of such Leased Property and the Construction Agent's interest in such Leased Property, and a current copy of the Plans and Specifications; and (f) the Construction Agent shall take all actions reasonably requested by the Lessor to fully assign to the Lessor all of its rights and claims in, to and under, all of the Construction Documents, and all permits and other governmental authorizations related to such Leased Property or the Construction. 5.7. Option to Remarket. Notwithstanding any provisions of this Agreement and the Operative Documents to the contrary and subject to the fulfillment of each of the conditions set forth in this Section 5.7, the Construction Agent shall have the option to remarket the Leased Property with respect to which a Construction Agency Event of Default has occurred for the Lessor or with respect to which the Lessee shall be required to pay the Construction Failure Payment pursuant to Section 3.4 (the "Construction Default Remarketing Option"). The Construction Agent's effective exercise and consummation of the Construction Default Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which, unless waived in writing by the Lessor and the Lenders, 20 shall render the Construction Default Remarketing Option and the Construction Agent's exercise thereof null and void, in which event, the Construction Agent shall not have any rights under this Section 5.7. (a) Not later than five Business Days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (b) or the Lessor's denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, the Construction Agent shall give to the Lessor and the Agent written notice of the Construction Agent's exercise of the Construction Default Remarketing Option. The date of such notice shall be the "CDRO Notice Date"; (b) Not later than thirty (30) days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (b) or the Lessor's denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, the Construction Agent shall deliver to the Lessor and the Agent an environmental assessment of such Leased Property dated not earlier than forty-five (45) days prior to the date of delivery thereof. Such environmental assessment shall be prepared by an environmental consultant selected by the Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate the environmental condition of such Leased Property to be the same as described in the related Environmental Audit. (c) The Construction Agent shall promptly provide any maintenance records relating to such Leased Property to the Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser. The Construction Agent shall allow the Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the same. (d) On the ninetieth (90th) day (such date, or such later date as the Lessor may specify in writing, being the "CDRO Closing Date") after Lessor's service of the notice of termination referred to in Section 5.3(a) or (b) or the Lessor's denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, the Construction Agent shall surrender such Leased Property in accordance with Section 5.9 hereof. (e) In connection with any such sale of the Leased Property, the Construction Agent shall provide to the purchaser all customary "seller's" indemnities (taking into account the location and nature of the Leased Property), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Property, including, without limitation, an environmental indemnity. The Construction Agent shall fulfill all of the requirements set forth in clause (b) of Section 14.5 of the Lease (mutatis mutandis, as if Construction Agent were a Lessee, purchasing the Leased Property in accordance with the provisions of Section 14.1 of the Lease), and such requirements are incorporated herein by 21 reference. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor, other than the absence of Lessor Liens. (f) In connection with any such sale of such Leased Property, the Construction Agent shall pay from the proceeds of remarketing, all prorations, credits, costs and expenses of the sale of the Leased Property, whether incurred by the Lessor, any Lender, the Agent or the Construction Agent, including without limitation, the cost of all title insurance, survey, environmental report, appraisal, transfer taxes, the Lessor's and the Agent's attorneys' fees, the Construction Agent's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes. (g) Subject to the last sentence of Section 3.2, the Construction Agent shall pay to the Agent immediately following the delivery of the termination notice pursuant to Section 5.3(a) or (b) or the Lessor's denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, (or to such other Person as Agent shall notify Construction Agent in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to (i) in the case of the exercise of remedies under Section 5.3(a) or a payment due under Section 3.4, the Construction Failure Payment, or (ii) in the case of the exercise of remedies under Section 5.3(b), the Permitted Lease Balance, in the type of funds specified in Section 3.3 of the Lease. If the Construction Agent has exercised the Construction Default Remarketing Option, the following additional provisions shall apply: During the period commencing on the CDRO Notice Date, the Construction Agent shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Property shall be paid from the proceeds of remarketing. The Construction Agent promptly shall submit all bids to the Lessor and the Agent and the Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be the Construction Agent or any Subsidiary or Affiliate of the Construction Agent. The written offer must specify the CDRO Closing Date as the closing date. If, and only if, the selling price (net of closing costs and prorations, as reasonably estimated by the Agent)(the "Construction Offer Price") is less than the Lease Balance at such time, then the Lessor or the Agent may, in its sole and absolute discretion, by notice to the Construction Agent, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 5.8 hereof. If neither the Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the CDRO Closing Date, contemporaneously with the Construction Agent's surrender of the Leased Property in accordance with Section 5.9 hereof, and the gross proceeds of the sale (after deduction, however, for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or the Lessor if the Funded Amounts have been fully paid). The Agent shall distribute the proceeds derived from any such sale first, to the Lessor in an amount of the difference between (i) the Permitted Lease Balance and (ii) the amount, if any, received by the Agent pursuant to clause (i) of the first sentence of this Section 5.7(g), second, to the extent 22 the Construction Agent has paid the amount due to the Agent in pursuant to clause (i) of the first sentence of this Section 5.7(g), to the Construction Agent to reimburse it to the extent of its payment of such amount, and third, to the Lessor. The Construction Agent shall not have the right, power or authority to bind the Lessor in connection with any proposed sale of the Leased Property. 5.8. Rejection of Sale. Notwithstanding anything contained herein to the contrary, if the Lessor or the Agent rejects the purchase offer for any Leased Property as provided in Section 5.7, then the Agent shall have an appraisal done of the Leased Property by an independent third party appraiser selected by the Agent, which appraiser shall determine the Fair Market Sales Value of the Leased Property in the condition in which such Leased Property exists at such time (the "Construction Appraised Value"). If (A) the Construction Appraised Value shall be less than the Construction Offer Price or (B) if the Construction Appraised Value shall be equal to or greater than the Construction Offer Price, and the Lessor in its sole discretion so elects, the Leased Property shall be sold pursuant to Section 5.7(g), and the proceeds of such sale shall be distributed, in accordance with Section 5.7. If the Construction Appraised Value shall be equal to or greater than the Construction Offer Price and the Lessor shall not have elected to sell the Leased Property pursuant to Section 5.7(g), (a) the Lessor shall refund to the Lessee the amount by which (i) the amount paid pursuant to clause(i) of the first sentence of Section 5.7(g) exceeds (ii) the amount by which (A) the Permitted Lease Balance exceeds (B) the Construction Appraised Value, and (b) the Lessor shall retain title to the Leased Property and shall retain all proceeds with respect to the Leased Property, free and clear of all claims of the Lessee and the Construction Agent. 5.9. Return of Leased Property. If the Lessor retains title to any Leased Property pursuant to Section 5.8 hereof, then the Construction Agent shall, on the CDRO Closing Date for such Leased Property (or such later date on which the Lessor shall elect not to sell the Leased Property pursuant to Section 5.7), and at its own expense, return possession of such Leased Property to the Lessor for retention by the Lessor and shall do all things required under Section 5.6 or, if the Construction Agent properly exercises the Construction Default Remarketing Option and fulfills all of the conditions of Section 5.7 hereof and neither the Lessor nor the Agent rejects such purchase offer pursuant to Section 5.7, then the Construction Agent shall, on such CDRO Closing Date, and at its own cost, transfer possession of the Leased Property to the independent purchaser thereof, in each case by surrendering the same into the possession of the Lessor or such purchaser, as the case may be, free and clear of all Liens other than Lessor Liens, in as good condition as it was on the CDRO Notice Date, and in compliance in all material respects with Applicable Law and deliver to the independent purchaser thereof the documents described in clauses (i) through (iii) of Section 5.6(a). In the case of a sale under Section 5.7, the Construction Agent shall, on and within a reasonable time before and after the CDRO Closing Date, cooperate with the Lessor and the independent purchaser of such Leased Property in order to facilitate the ownership and operation by such purchaser of such Leased Property after the CDRO Closing Date, which cooperation shall include the following, all of which the 23 Construction Agent shall do on or before the CDRO Closing Date or as soon thereafter as is reasonably practicable: providing all books and records, including copies of all Construction Documents, regarding the construction, maintenance and ownership of such Leased Property and all know-how, data and technical information relating thereto, providing a copy of the Plans and Specifications, granting or assigning all permits and licenses (to the extent assignable) necessary for the construction, operation and maintenance of such Leased Property, and cooperating in seeking and obtaining all necessary Governmental Action and taking all action necessary to fully assign and transfer all of its rights, claims and causes of action under all of the Construction Documents (including, without limitation, obtaining all necessary consents to such assignments). The obligations of the Construction Agent under this Section 5.9 shall survive the expiration or termination of this Agreement. ARTICLE VI NO CONSTRUCTION AGENCY FEE 6.1. Lease as Fulfillment of Lessor's Obligations. All obligations, duties and requirements imposed upon or allocated to the Construction Agent shall be performed by the Construction Agent at the Construction's Agent's sole cost and expense, and the Construction Agent will not be entitled to, and the Lessor shall not have any obligation to pay, any agency fee or other fee or compensation, and the Construction Agent shall not be entitled to, and the Lessor shall not have any obligation to make or pay, any reimbursement therefor, it being understood that this Agreement is being entered into as consideration for and as an inducement to the Lessor entering into the Lease and the other Operative Documents. ARTICLE VII LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS 7.1. Exercise of the Lessor's Rights. The Construction Agent hereby acknowledges and agrees that the rights and powers of the Lessor under this Agreement have been assigned to, and may be exercised by, the Agent. 7.2. Lessor's Right to Cure Construction Agent's Defaults. The Lessor, without waiving or releasing any obligation or Construction Agency Event of Default, may, upon prior written notice to the Construction Agent (but shall be under no obligation to), remedy any Construction Agency Event of Default for the account of and at the sole cost and expense of the Construction Agent. All reasonable out of pocket costs and expenses so incurred (including actual and reasonable fees and expenses of counsel), together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid by the Lessor, shall be paid by the Construction Agent to the Lessor on demand. 24 ARTICLE VIII MISCELLANEOUS 8.1. Documentary Conventions. The Documentary Conventions shall apply to this Agreement. 8.2. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Lessor, the Construction Agent and their respective legal representatives, successors and permitted assigns. The Construction Agent shall not assign its rights or obligations hereunder without the prior written consent of the Lessor and the Agent. 25 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. CHOICEPOINT INC. By /s/ David E. Trine --------------------------------------- Name: David E. Trine ---------------------------------- Title: Treasurer --------------------------------- S-1 ATLANTIC FINANCIAL GROUP, LTD. By: Atlantic Financial Managers, Inc., its General Partner By /s/ Stephen S. Brookshire --------------------------------------- Name: Stephen S. Brookshire ---------------------------------- Title: President --------------------------------- S-2 EXHIBIT A Supplement to Construction Agency Agreement SUPPLEMENT to Construction Agency Agreement, dated as of ______________, 200_, between ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership (the "Lessor"), and CHOICEPOINT INC., a Georgia corporation (in its capacity as construction agent, the "Construction Agent"). Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Construction Agency Agreement. The Lessor and the Construction Agent are parties to that certain Construction Agency Agreement, dated as of August 29, 2001 (as amended, supplemented or otherwise modified, the "Construction Agency Agreement"), pursuant to which (i) the Lessor has appointed the Construction Agent as its sole and exclusive agent in connection with the identification and acquisition of Land and construction of the Buildings in accordance with the Plans and Specifications, and (ii) the Construction Agent has agreed, for the benefit of the Lessor, to cause the construction of the Buildings to be completed in accordance with the Plans and Specifications. Subject to the terms and conditions of the Construction Agency Agreement, the Lessor and the Construction Agent desire that the terms of the Construction Agency Agreement apply to the Land described in Schedule 1 and wish to execute this Supplement to provide therefor. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: 1. The Construction Agent agrees to act as Construction Agent and to perform its obligations under the Construction Agency Agreement in connection with the completion of construction of the Building on the Land described in Schedule 1 in accordance with the Plans and Specifications for such Land. The Construction Agent hereby represents and warrants to Lessor that the Construction Agent has heretofore delivered to Lessor a true, correct and complete copy of the Plans and Specifications for the Building on the Land described in Schedule 1 or, if not available on the date hereof, will deliver such Plans and Specifications as soon as available. 2. Each of the Lessor and the Construction Agent acknowledges and agrees that the development of the Land described in Schedule 1 and the construction of the Buildings thereon shall be governed by the terms of the Construction Agency Agreement. A-1 3. The anticipated construction budget relating to the construction and development of the Building on the Land described in Schedule 1 is $__________. The acquisition cost of the Land described in Schedule 1 is $___________. 4. This Supplement shall, upon its execution and delivery, constitute a part of the Construction Agency Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. CHOICEPOINT INC. By --------------------------------------- Name: Title: ATLANTIC FINANCIAL GROUP, LTD. By: Atlantic Financial Managers, Inc., its General Partner By --------------------------------------- Name: Title: A-2 Schedule 1 to Supplement Description of Land Interest EX-10.5 7 g72515ex10-5.txt LOAN AGREEMENT DATED AUGUST 29, 2001 EXHIBIT 10.5 =============================================================================== LOAN AGREEMENT Dated as of August 29, 2001 among ATLANTIC FINANCIAL GROUP, LTD. as Lessor and Borrower, the financial institutions party hereto, as Lenders and SUNTRUST BANK, as Agent =============================================================================== TABLE OF CONTENTS
Page ---- SECTION 1 DEFINITIONS; INTERPRETATION.................................................................1 SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT OF LOANS.........................................................................1 SECTION 2.1 Commitment............................................................1 SECTION 2.2 Note..................................................................2 SECTION 2.3 Scheduled Principal Repayment.........................................2 SECTION 2.4 Interest..............................................................2 SECTION 2.5 Allocation of Loans to Leased Properties..............................3 SECTION 2.6 Prepayment............................................................3 SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS IN RESPECT OF LEASE AND LEASED PROPERTY. .........................................3 SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE................................................3 SECTION 4.1 Covenant of Lessor....................................................3 SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease Obligations and Certain Proceeds of Leased Property Only..................................................4 SECTION 4.3 Exercise of Remedies Under the Lease..................................5 SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES............................................................6 SECTION 5.1 Loan Events of Default................................................6 SECTION 5.2 Remedies..............................................................7 SECTION 6 THE AGENT...................................................................................7 SECTION 6.1 Appointment...........................................................7 SECTION 6.2 Delegation of Duties..................................................8 SECTION 6.3 Exculpatory Provisions................................................8 SECTION 6.4 Reliance by Agent.....................................................8 SECTION 6.5 Notice of Default.....................................................9 SECTION 6.6 Non-Reliance on Agent and Other Lenders...............................9 SECTION 6.7 Indemnification......................................................10 SECTION 6.8 Agent in Its Individual Capacity.....................................10 SECTION 6.9 Successor Agent......................................................10
SECTION 7 MISCELLANEOUS..............................................................................11 SECTION 7.1 Documentary Conventions..............................................11 SECTION 7.2 No Waiver; Cumulative Remedies.......................................11 SECTION 7.3 Successors and Assigns...............................................11 SECTION 7.4 Survival and Termination of Agreement................................11
EXHIBITS EXHIBIT A Form of Note -2- THIS LOAN AGREEMENT (as it may be amended or modified from time to time in accordance with the provisions hereof, this "Loan Agreement") dated as of August 29, 2001 is among ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership, as lessor and borrower (the "Lessor"); SUNTRUST BANK and the other financial institutions which are, or may, as permitted by Section 6.2(b) of the Master Agreement, from time to time become, parties hereto as lenders (the "Lenders") and SUNTRUST BANK, a Georgia banking corporation, as agent for the Lenders (in such capacity, the "Agent"). PRELIMINARY STATEMENT In accordance with the terms and provisions of the Master Agreement, the Lease, this Loan Agreement and the other Operative Documents, (i) the Lessor contemplates acquiring the Leased Properties and leasing the Leased Properties to the Lessees, (ii) ChoicePoint as Construction Agent for the Lessor, wishes, in certain instances, to construct Buildings on the Land for the Lessor and, when completed, to lease the Buildings, or to cause the Buildings to be leased, from the Lessor as part of the Leased Properties under the Lease, (iii) ChoicePoint wishes to obtain, and the Lessor is willing to provide, funding for the acquisition of the Land and any Buildings thereon and, in certain instances, the construction of the Buildings, and (iv) the Lessor wishes to obtain, and the Lenders are willing to provide, financing of a portion of the funding for the acquisition of the Land and any Buildings thereon and, if applicable, the construction of the Buildings. In consideration of the foregoing 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 to the Master Agreement dated as of August 29, 2001 (as amended, or supplemented or otherwise modified from time to time, the "Master Agreement"), among ChoicePoint Inc., as Guarantor, and certain Subsidiaries of ChoicePoint Inc. that may become party thereto, as Lessees, the Lessor, the Lenders and the Agent; and the rules of interpretation set forth in such Appendix A shall apply to this Loan Agreement. SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT OF LOANS SECTION 2.1 Commitment. (a) Subject to the terms and conditions hereof and of the Master Agreement, each Lender agrees to make term loans to the Lessor ("Loans") from time to time during the period from and including the Initial Closing Date through the Funding Termination Date, on each Closing Date and on each subsequent Funding Date, in the amounts required under Section 2.2 of the Master Agreement. Each such Loan shall consist of an A Loan in the amount of such Lender's pro rata share of the Recourse Deficiency Amount for the related Leased Property and a B Loan in the amount of such Lender's pro rata share of the remaining principal amount of the Loan related to such Leased Property. SECTION 2.2 Note. The Loans made by each Lender to the Lessor shall be evidenced by a note of the Lessor (the "Note"), substantially in the form of Exhibit A with appropriate insertions, duly executed by the Lessor and payable to the order of the Agent, on behalf of the Lenders, and in a principal amount equal to the aggregate Commitments of the Lenders (or, if less, the aggregate unpaid principal amount of all Loans made by the Lenders to the Lessor). The Note shall be dated the Initial Closing Date and delivered to the Agent in accordance with Section 3.2 of the Master Agreement. The Agent is hereby authorized to record the date and amount of each Loan made by each Lender to the Lessor on the Note or in its records, and each Lender is hereby authorized to record the date and amount of each Loan made by such Lender to the Lessor in its records, but the failure by the Agent or any Lender to so record such Loan shall not affect or impair any obligations with respect thereto. The Note shall (i) be stated to mature no later than the final Lease Termination Date and (ii) bear interest from the date a Loan is made on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, and payable as specified in, Section 2.4. Upon the occurrence of an Event of Default under clause (f) of Article XII of the Lease, or upon Acceleration as described in Section 4.3(b) hereof, the Note shall automatically become due and payable in full. SECTION 2.3 Scheduled Principal Repayment. On the Lease Termination Date, the Lessor shall pay the aggregate unpaid principal amount of all Loans as of such date. SECTION 2.4 Interest. (a) Each Loan related to a LIBOR Advance shall bear interest during each Rent Period at a rate equal to the sum of (i) the LIBOR for such Rent Period, computed using the actual number of days elapsed and a 360 day year, plus (ii) the Applicable Margin per annum. Each Loan related to a Base Rate Advance shall bear interest at a rate equal to the sum of (i) the Base Rate in effect from time to time, computed using the actual number of days elapsed and a 360 day year, plus (ii) the Applicable Margin per annum. (b) If all or a portion of the principal amount of or interest on the Loans shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall, without limiting the rights of the Lenders under Section 5, bear interest at the Overdue Rate, in each case from the date of nonpayment until paid in full (after as well as before judgment). (c) Interest accruing on each Loan with respect to any Leased Property during the Construction Term of such Leased Property shall, subject to the limitations set forth in Section 2.3(c) of the Master Agreement, be added to the principal amount of such Loan from 2 time to time. Following the date each Loan is made (or in the case of Loans with respect to a Construction Land Interest, the Construction Term Expiration Date), interest on such Loan shall be payable in arrears on each Payment Date with respect thereto. (d) Any change in the interest rate on the Loans resulting from a change in the Base Rate shall become effective as of the opening of business on the day on which such Base Rate changes as provided in the definition thereof. SECTION 2.5 Allocation of Loans to Leased Properties. Pursuant to each Funding Request, each Loan shall be allocated to the Leased Property, the cost of acquisition or construction of which the proceeds of such Loan are used to pay. For purposes of the Operative Documents, the "related Loans" with respect to any Leased Property or Loans "related to" any Leased Property shall mean those Loans allocated to such Leased Property as set forth in the foregoing sentence. SECTION 2.6 Prepayment. Except in conjunction with a payment by a Lessee or the Construction Agent of the Lease Balance, a Construction Failure Payment or a Leased Property Balance pursuant to the terms of the Lease or the Construction Agency Agreement, the Lessor shall have no right to prepay the Loans. SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS IN RESPECT OF LEASE AND LEASED PROPERTY. Payments of Rent, other payments made pursuant to the Operative Documents and proceeds of the Leased Properties shall be distributed as set forth in Section 6 of the Master Agreement. SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE SECTION 4.1 Covenant of Lessor. So long as any Lender's Commitment remains in effect, any Loan remains outstanding and unpaid or any other amount is owing to any Lender with respect to its Funding Party Balances, subject to Section 4.2, the Lessor will promptly pay all amounts payable by it under this Loan Agreement and the Notes issued by it in accordance with the terms hereof and thereof and shall duly perform each of its obligations under this Loan Agreement and the Notes. The Lessor agrees to provide to the Agent a copy of each estoppel certificate that the Lessor proposes to deliver pursuant to Section 17.13 of the Lease at least five (5) days prior to such delivery and to make any corrections thereto reasonably requested by the Agent prior to such delivery. The Lessor shall keep each Leased Property owned by it free and clear of all Lessor Liens. The Lessor shall not reject any sale of any Leased Property pursuant to Section 14.6 of the Lease unless all of the related Loans have been paid in full or the Lenders consent to such rejection. In the event that the Lenders reject any sale of any Leased Property pursuant to Section 14.6 of the Lease, the Lessor agrees to take such action as the Lenders 3 reasonably request to effect a sale or other disposition of such Leased Property, provided that the Lessor shall not be required to expend its own funds in connection with such sale or disposition. In the event that the Construction Agent returns any Leased Property to the Lessor pursuant to Section 5.3(a) of the Construction Agency Agreement, unless all of the related Loans are paid in full, the Lessor agrees to take such action as the Lenders reasonably request to complete the Construction, or to effect a sale or other disposition, of such Leased Property, provided that the Lessor shall not be required to expend its own funds in connection therewith. During the Construction Term for each Leased Property, the Lessor agrees to assume liability for, and to indemnify, protect, defend, save and hold harmless the Agent, each Lender and each of their respective Affiliates, successors, assigns, employees, officers and directors, on an After-Tax Basis, from and against, any and all Claims that may be imposed on, incurred by or asserted or threatened to be asserted against the Agent or any Lender, in any way relating to or arising out of the circumstances described in Section 7.1 or 7.4 of the Master Agreement, provided that the Lessor shall only be obligated to make a payment pursuant to this sentence to the extent that the Lessor receives payment from the Construction Agent or any other Person with respect to such Claim. SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease Obligations and Certain Proceeds of Leased Property Only. All payments to be made by the Lessor in respect of the Loans, the Note and this Loan Agreement shall be made only from certain payments received under the Lease, the Guaranty Agreement, and the Construction Agency Agreement and certain proceeds of the Leased Properties and only to the extent that the Lessor or the Agent shall have received sufficient payments from such sources to make payments in respect of the Loans in accordance with Section 3. Each Lender agrees that it will look solely to such sources of payments to the extent available for distribution to such Lender as herein provided and that neither the Lessor nor the Agent is or shall be personally liable to any Lender for any amount payable hereunder or under the Note. Nothing in this Loan Agreement, the Note or any other Operative Document shall be construed as creating any liability (other than for willful misconduct or gross negligence) of the Lessor individually to pay any sum or to perform any covenant, either express or implied, in this Loan Agreement, the Notes or any other Operative Documents (all such liability, if any, being expressly waived by each Lender) and that each Lender, on behalf of itself and its successors and assigns, agrees in the case of any liability of the Lessor hereunder or thereunder (except for such liability attributable to its willful misconduct or gross negligence) that it will look solely to those certain payments received under the Lease, the Guaranty Agreement and the Construction Agency Agreement and those certain proceeds of the Leased Properties, provided, however, that the Lessor in its individual capacity shall in any event be liable with respect to (i) the removal of Lessor's Liens or involving its gross negligence or willful misconduct or (ii) failure to turn over payments the Lessor has received in accordance with Section 3; and provided further that the foregoing exculpation of the Lessor shall not be deemed to be exculpations of the Guarantor, any Lessee or any other Person. 4 SECTION 4.3 Exercise of Remedies Under the Lease. (a) Event of Default. With respect to any Potential Event of Default as to which notice thereof by the Lessor to ChoicePoint or a Lessee is a requirement to cause such Potential Event of Default to become an Event of Default, the Lessor agrees to give such notice to ChoicePoint or such Lessee promptly upon receipt of a written request by any Lender or the Agent. The Lessor shall not, without the prior written consent of the Required Lenders, waive any Event of Default. (b) Acceleration of Lease Balance. When an Event of Default or a Construction Failure Event exists, the Lessor shall exercise remedies under Article XIII of the Lease or Section 5 of the Construction Agency Agreement, as the case may be, as directed by the Required Lenders, including, if so directed, demanding payment in full of the Lease Balance by the Lessees (the "Acceleration"). The Lessor shall consult with the Lenders regarding actions to be taken in response to such Event of Default or a Construction Failure Event. The Lessor (1) shall not, without the prior written consent of the Required Lenders and (2) shall (subject to the provisions of this Section), if so directed by the Required Lenders, do any of the following: commence eviction or foreclosure proceedings, or file a lawsuit against any Lessee under the Lease, or sell the Leased Properties, or exercise other remedies against the Lessees or the Guarantor under the Operative Documents in respect of such Event of Default or a Construction Failure Event; provided, however, that any payments received by the Lessor shall be distributed in accordance with Section 6 of the Master Agreement. Notwithstanding any such consent, direction or approval by the Required Lenders of any such action or omission, the Lessor shall not have any obligation to follow such direction if the same would, in the Lessor's reasonable judgment, require the Lessor to expend its own funds or expose the Lessor to expense, unless Required Lenders provide to the Lessor an indemnity, in form and substance reasonably acceptable to the Lessor, for such liability, loss or damage or unless and until the Lenders advance to the Lessor an amount which is sufficient, in the Lessor's reasonable judgment, to cover such liability, expense, loss or damage (excluding the Lessor's pro rata share thereof, if any). Notwithstanding the foregoing, on and after the related Release Date (and any application otherwise required under Section 6 of the Master Agreement has been made): the Lenders shall have no rights to such Leased Property or any proceeds thereof; the Lenders shall have no rights to direct or give consent to any actions with respect to such Leased Property and the proceeds thereof; the Lessor shall have absolute discretion (but in all events subject to the terms of the Operative Documents) with respect to such exercise of remedies with respect to such Leased Property, and the proceeds thereof, including, without limitation, any foreclosure or sale of such Leased Property; and the Lessor shall have no liability to the Lenders with respect to the Lessor's actions or failure to take any action with respect to such Leased Property. 5 SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES SECTION 5.1 Loan Events of Default. Each of the following events shall constitute a Loan Event of Default (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Authority) and each such Loan Event of Default shall continue so long as, but only as long as, it shall not have been remedied: (a) Lessor shall fail to distribute in accordance with the provisions of Section 6 of the Master Agreement any amount received by the Lessor pursuant to any of the Operative Documents within two (2) Business Days of receipt thereof if and to the extent that the Agent or the Lenders are entitled to such amount or a portion thereof; or (b) the Lessor shall fail to pay to the Agent, within two (2) Business Days of the Lessor's receipt thereof, any amount which a Lessee or the Guarantor is required, pursuant to the Operative Documents, to pay to the Agent but erroneously pays to the Lessor; or (c) failure by the Lessor to perform in any material respect any other covenant or condition herein or in any other Operative Document to which the Lessor is a party, which failure shall continue unremedied for thirty (30) days after receipt by the Lessor of written notice thereof from the Agent or any Lender; or (d) any representation or warranty of the Lessor contained in any Operative Document or in any certificate required to be delivered thereunder shall prove to have been incorrect in a material respect when made and shall not have been cured within thirty (30) days of receipt by the Lessor of written notice thereof from the Agent or any Lender; or (e) the Lessor or the General Partner shall become bankrupt or make an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver; or a trustee or a receiver shall be appointed for the Lessor or the General Partner or for substantially all of its property without its consent and shall not be dismissed or stayed within a period of ninety (90) days; or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against the Lessor or the General Partner and, if instituted against the Lessor or the General Partner, shall not be dismissed or stayed for a period of ninety (90) days; or (f) any Event of Default shall occur and be continuing. 6 SECTION 5.2 Remedies. (a) Upon the occurrence of a Loan Event of Default hereunder, (i) if such event is a Loan Event of Default specified in clause (e) of Section 5.1 with respect to the Lessor, automatically the Lenders' Commitments shall terminate and the outstanding principal of, and accrued interest on, the Loans shall be immediately due and payable, and (ii) if such event is any other Loan Event of Default, upon written request of the Required Lenders, the Agent shall, by notice of default to the Lessor, declare the Commitments of the Lenders to be terminated forthwith and the outstanding principal of, and accrued interest on, the Loans to be immediately due and payable, whereupon the Commitments of the Lenders shall immediately terminate and the outstanding principal of, and accrued interest on, the Loans shall become immediately due and payable. (b) When a Loan Event of Default exists, the Agent may, and upon the written instructions of the Required Lenders shall, exercise any or all of the rights and powers and pursue any and all of the remedies available to it hereunder, under the Notes, the Mortgages and the Assignments of Lease and Rents and shall have and may exercise any and all rights and remedies available under the Uniform Commercial Code or any provision of law. When a Loan Event of Default exists, the Agent may, and upon the written instructions of the Required Lenders shall, have the right to exercise all rights of the Lessor under the Lease pursuant to the terms and in the manner provided for in the Mortgages and the Assignments of Lease and Rents. (c) Except as expressly provided above, no remedy under this Section 5.2 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy provided under this Section 5.2 or under the other Operative Documents or otherwise available at law or in equity. The exercise by the Agent or any Lender of any one or more of such remedies shall not preclude the simultaneous or later exercise of any other remedy or remedies. No express or implied waiver by the Agent or any Lender of any Loan Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Loan Event of Default. The failure or delay of the Agent or any Lender in exercising any rights granted it hereunder upon any occurrence of any of the contingencies set forth herein shall not constitute a waiver of any such right upon the continuation or recurrence of any such contingencies or similar contingencies and any single or partial exercise of any particular right by the Agent or any Lender shall not exhaust the same or constitute a waiver of any other right provided herein. SECTION 6 THE AGENT SECTION 6.1 Appointment. Each Lender hereby irrevocably designates and appoints the Agent as the agent of such Lender under this Loan Agreement and the other Operative Documents, and each such Lender irrevocably authorizes the Agent, in such capacity, to take such action on its behalf under the provisions of this Loan Agreement and the other Operative Documents and to exercise such powers and perform such duties as are expressly delegated to the 7 Agent by the terms of this Loan Agreement and the other Operative Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Loan Agreement, the Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Loan Agreement or any other Operative Document or otherwise exist against the Agent. SECTION 6.2 Delegation of Duties. The Agent may execute any of its duties under this Loan Agreement and the other Operative Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in- fact selected by it with reasonable care. SECTION 6.3 Exculpatory Provisions. Neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Loan Agreement or any other Operative Document (except for its or such Person's own gross negligence or willful misconduct) or (b) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by the Lessor or any Lessee or any officer thereof contained in this Loan Agreement or any other Operative Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection with, this Loan Agreement or any other Operative Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Loan Agreement or any other Operative Document or for any failure of the Lessor or any Lessee to perform its obligations hereunder or thereunder. The Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Loan Agreement or any other Operative Document, or to inspect the properties, books or records of the Lessor, the Guarantor or any Lessee. SECTION 6.4 Reliance by Agent. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Lessor or any Lessee), independent accountants and other experts selected by the Agent. The Agent may deem and treat each Lender as the owner of its pro rata share of the Loans for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Agent. The Agent shall be fully justified in failing or refusing to take any action under this Loan Agreement or any other Operative Document unless it shall 8 first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Funding Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Subject to the Operative Documents, the Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Loan Agreement and the other Operative Documents in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of an interest in the Notes. SECTION 6.5 Notice of Default. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Loan Potential Event of Default or Loan Event of Default hereunder unless the Agent has received notice from a Lender referring to this Loan Agreement, describing such Loan Potential Event of Default or Loan Event of Default and stating that such notice is a "notice of default". In the event that the Agent receives such a notice, the Agent shall give notice thereof to the Lenders. The Agent shall take such action, subject to the Operative Documents with respect to such Loan Potential Event of Default or Loan Event of Default as shall be reasonably directed by the Required Lenders; provided that unless and until the Agent shall have received such directions, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Loan Potential Event of Default or Loan Event of Default as it shall deem advisable in the best interests of the Lenders. SECTION 6.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly acknowledges that neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Agent hereinafter taken, including any review of the affairs of the Lessor, the Guarantor or any Lessee, shall be deemed to constitute any representation or warranty by the Agent to any Lender. Each Lender represents to the Agent that it has, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Lessor, the Guarantor and each Lessee and made its own decision to make its Loans hereunder and enter into this Loan Agreement. Each Lender also represents that it will, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Loan Agreement and the other Operative Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Lessor, the Guarantor and each Lessee. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Agent hereunder, the Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Lessor, the Guarantor or any Lessee which may come into the possession of the Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates. 9 SECTION 6.7 Indemnification. The Lenders agree to indemnify the Agent in its capacity as such (to the extent not reimbursed by a Lessee and without limiting the obligation of any Lessee to do so), ratably according to the percentage each Lender's Commitment bears to the total Commitments of all of the Lenders on the date on which indemnification is sought under this Section 6.7 (or, if indemnification is sought after the date upon which the Lenders' Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with the percentage that each Lender's Commitment bears to the Commitments of all of the Lenders immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Notes) be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, the Commitments, this Loan Agreement, any of the other Operative Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Agent's gross negligence or willful misconduct. The agreements in this Section 6.7 shall survive the payment of the Notes and all other amounts payable hereunder. SECTION 6.8 Agent in Its Individual Capacity. The Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Lessor, the Guarantor or any Lessee as though the Agent were not the Agent hereunder and under the other Operative Documents. With respect to Loans made or renewed by it, the Agent shall have the same rights and powers under this Loan Agreement and the other Operative Documents as any Lender and may exercise the same as though it were not the Agent, and the terms "Lender" and "Lenders" shall include the Agent in its individual capacity. Each Lender acknowledges that the Agent in its individual capacity has had and continues to have other business relations and transactions with ChoicePoint, ChoicePoint's Affiliates and the Lessor. SECTION 6.9 Successor Agent. The Agent may resign as Agent upon 20 days' notice to the Lenders effective upon the appointment of a successor agent. If the Agent shall resign as Agent under this Loan Agreement and the other Operative Documents, then the Required Lenders shall appoint a successor agent for the Lenders, which successor agent shall be a commercial bank organized under the laws of the United States of America or any State thereof or under the laws of another country which is doing business in the United States of America and having a combined capital, surplus and undivided profits of at least $100,000,000, whereupon such successor agent shall succeed to the rights, powers and duties of the Agent, and the term "Agent" shall mean such successor agent effective upon such appointment and approval, and the former Agent's rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such former Agent or any of the parties to this Loan Agreement or any holders of the Notes. After any retiring Agent's resignation as Agent, all of the provisions 10 of this Section 6 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Loan Agreement and the other Operative Documents. SECTION 7 MISCELLANEOUS SECTION 7.1 Documentary Conventions The Documentary Conventions shall apply to this Loan Agreement. SECTION 7.2 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. SECTION 7.3 Successors and Assigns. This Loan Agreement shall be binding upon and inure to the benefit of the Lessor, the Agent, the Lenders, all future holders of an interest in the Notes and their respective successors and permitted assigns. SECTION 7.4 Survival and Termination of Agreement. All covenants, agreements, representations and warranties made herein and in any certificate, document or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Loan Agreement, and the Notes and shall continue in full force and effect so long as any Note or any amount payable to any Lender under or in connection with this Loan Agreement or the Notes is unpaid, at which time this Loan Agreement shall terminate. 11 IN WITNESS THEREOF, the parties hereto have caused this Loan Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. SUNTRUST BANK, as Agent By: /s/ Daniel S. Komitor ---------------------------------------- Name: Daniel S. Komitor ----------------------------------- Title: Director ---------------------------------- S-1 ATLANTIC FINANCIAL GROUP, LTD., as Lessor and Borrower By: Atlantic Financial Managers, Inc., its General Partner By: /s/ Stephen Brookshire ----------------------------------- Name: Stephen Brookshire Title: President S-2 SUNTRUST BANK, as a Lender By: /s/ Daniel S. Komitor ---------------------------------------- Name: Daniel S. Komitor ----------------------------------- Title: Director ---------------------------------- S-3 FLEET NATIONAL BANK, as a Lender By: /s/ John B. Desmond ---------------------------------------- Name: John B. Desmond ----------------------------------- Title: Director ---------------------------------- S-4 BNP PARIBAS, as a Lender By: /s/ Mike Shryock ---------------------------------------- Name: Mike Shryock ----------------------------------- Title: Vice President ---------------------------------- By: /s/ Aurora Abella ---------------------------------------- Name: Aurora Abella ----------------------------------- Title: Vice President ---------------------------------- S-5 EX-10.6 8 g72515ex10-6.txt STOCK PURCHASE AGREEMENT DATED AUGUST 31, 2001 EXHIBIT 10.6 STOCK PURCHASE AGREEMENT by and among CHOICEPOINT INC., CHOICEPOINT SERVICES INC., and LABONE, INC. Dated as of August 31, 2001
TABLE OF CONTENTS PAGE ---- Section 1. Purchase of Osborn Shares.......................................................................2 1.1 Transfer of Osborn Shares.......................................................................2 1.2 Purchase Price..................................................................................2 1.3 Delivery of Osborn Shares and Payment of Purchase Price.........................................2 1.4 Working Capital Adjustment......................................................................2 Section 2. Related Matters.................................................................................4 2.1 Transfer of Real Property.......................................................................4 2.2 Transfer of Personal Property and Intellectual Property.........................................4 2.3 Transfer of CHS Capital Stock...................................................................5 2.4 Sale of Osborn Canada Shares....................................................................5 2.5 Transfer of Accounts Receivable; Cooperation with Respect to Accounts Receivable................5 2.6 Distributions...................................................................................6 2.7 Transition Services.............................................................................6 2.8 Further Assurances..............................................................................6 Section 3. Representations and Warranties of the ChoicePoint Entities......................................6 3.1 Organization....................................................................................6 3.2 Authorization...................................................................................7 3.3 Absence of Restrictions and Conflicts...........................................................7 3.4 Capitalization..................................................................................8 3.5 Ownership of Assets and Related Matters.........................................................9 3.6 Financial Statements...........................................................................11 3.7 No Undisclosed Liabilities.....................................................................11 3.8 Absence of Certain Changes.....................................................................11 3.9 Legal Proceedings..............................................................................13 3.10 Licenses, Permits, and Compliance with Law.....................................................13 3.11 Material Contracts.............................................................................15 3.12 Tax Returns; Taxes.............................................................................16 3.13 Employees and Independent Contractors; Officers and Directors..................................19 3.14 ERISA and Related Matters......................................................................20 3.15 Labor Matters..................................................................................23 3.16 Insurance......................................................................................24 3.17 Intellectual Property..........................................................................24 3.18 Customers......................................................................................24 3.19 Related Party Agreements and Transactions......................................................25 3.20 Completeness of Disclosure.....................................................................25 3.21 Brokers, Finders, and Investment Bankers.......................................................25 Section 4. Representations and Warranties of the Parent...................................................25 4.1 Organization...................................................................................25
4.2 Authorization..................................................................................25 4.3 Absence of Restrictions and Conflicts..........................................................26 4.4 Brokers, Finders, and Investment Bankers.......................................................26 Section 5. Representations and Warranties of LabOne.......................................................26 5.1 Organization...................................................................................26 5.2 Authorization..................................................................................27 5.3 Absence of Restrictions and Conflicts..........................................................27 5.4 Brokers, Finders, and Investment Bankers.......................................................27 5.5 Purchase for Investment........................................................................27 5.6 Litigation.....................................................................................28 Section 6. Additional Covenants and Agreements............................................................28 6.1 Access to Information..........................................................................28 6.2 Consents.......................................................................................29 6.3 Fees and Expenses..............................................................................29 6.4 Public Announcements...........................................................................29 6.5 Employees; Employee Benefits...................................................................30 6.6 Use of ChoicePoint Corporate Name and Trademarks...............................................31 6.7 Transition Services Agreement..................................................................32 6.8 Investigation by LabOne........................................................................32 6.9 Audit of Osborn Year-End Financial Statements..................................................32 6.10 Insurance Matters..............................................................................33 Section 7. Restrictive Covenants..........................................................................33 7.1 Definitions....................................................................................33 7.2 Noncompetition.................................................................................34 7.3 Severability...................................................................................35 Section 8. Contemporaneous Actions........................................................................35 8.1 LabOne Documents...............................................................................36 8.2 Transfers Complete.............................................................................36 8.3 Third-Party Consents and Notices...............................................................36 8.4 ChoicePoint Documents..........................................................................37 Section 9. Survival of Representations and Warranties, Etc.; Indemnification..............................38 9.1 Survival of Representations, Warranties, Covenants and Agreements; Right to Indemnification not Affected by Knowledge.................................38 9.2 Indemnification Obligations of the ChoicePoint Entities........................................38 9.3 Indemnification Obligations of LabOne..........................................................39 9.4 Indemnification Procedure......................................................................39 9.5 Claims Period..................................................................................41 9.6 Threshold Amount; Limitation Amount............................................................42 9.7 Limitations on Indemnification.................................................................42 9.8 Exclusive Remedy...............................................................................43
-ii- Section 10. Tax Matters....................................................................................43 10.1 Preparation and Filing of Tax Returns..........................................................43 10.2 Payment of Taxes...............................................................................44 10.3 Tax Sharing Agreements.........................................................................44 10.4 Carryforwards and Carrybacks...................................................................45 10.5 Refunds and Credits............................................................................45 10.6 Tax Cooperation................................................................................45 10.7 Tax Indemnification............................................................................45 10.8 Tax Contests...................................................................................47 10.9 Definitions....................................................................................48 Section 11. Miscellaneous..................................................................................48 11.1 Notices........................................................................................48 11.2 Attachments....................................................................................49 11.3 Successors in Interest.........................................................................49 11.4 Number; Gender.................................................................................50 11.5 Captions.......................................................................................50 11.6 Knowledge......................................................................................50 11.7 Controlling Law; Integration; Amendment........................................................50 11.8 Severability...................................................................................50 11.9 Counterparts...................................................................................51 11.10 Enforcement of Certain Rights..................................................................51 11.11 Injunctive Relief..............................................................................51 11.12 Submission to Jurisdiction.....................................................................51
-iii- ANNEXES Annex 1 - Current Assets Annex 2 - Current Liabilities Annex 3 - Net Working Capital GAAP Exceptions -iv- STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of the 31st day of August, 2001, is made and entered into by and among CHOICEPOINT INC., a Georgia corporation (the "Parent"), CHOICEPOINT SERVICES INC., a Georgia corporation and wholly owned subsidiary of the Parent ("ChoicePoint" and together with the Parent, each individually, a "ChoicePoint Entity" and collectively, the "ChoicePoint Entities"), and LABONE, INC., a Missouri corporation ("LabOne"). WITNESSETH: WHEREAS, ChoicePoint owns all of the issued and outstanding shares of capital stock of Osborn Group Inc., a Delaware corporation ("Osborn"); WHEREAS, Osborn owns all of the issued and outstanding shares of capital stock of Intellisys, Inc., a Georgia corporation ("Intellisys"), ChoicePoint Health Systems Inc., a Kansas corporation ("CHS"), Applied BioConcepts Inc., a Kansas corporation ("Applied"), and Osborn Laboratories (Canada) Inc., a corporation organized under the Laws (as hereinafter defined) of Canada ("Osborn Canada") (Intellisys, Applied and Osborn Canada (but not CHS) are each hereinafter sometimes referred to individually as an "Osborn Subsidiary" and collectively as the "Osborn Subsidiaries"; Osborn and the Osborn Subsidiaries are each hereinafter sometimes referred to individually as an "Osborn Entity" and collectively as the "Osborn Entities"); WHEREAS, subject to the terms and conditions of this Agreement, ChoicePoint desires to sell, and LabOne desires to purchase, all of the issued and outstanding shares of capital stock of Osborn (which, except as otherwise provided in this Agreement, will continue to own all of the issued and outstanding shares of capital stock or share capital of each of the Osborn Subsidiaries); WHEREAS, prior to the sale and purchase of the issued and outstanding shares of capital stock of Osborn, the parties desire that the Osborn Entities transfer to ChoicePoint or an Affiliate (as hereinafter defined) thereof, and that ChoicePoint transfer to the Osborn Entities, certain assets and liabilities described more particularly herein; WHEREAS, immediately prior to the sale and purchase of the issued and outstanding shares of capital stock of Osborn, the parties desire that Osborn sell, and LabOne Canada, Inc. purchase, all of the issued and outstanding share capital of Osborn Canada and that Osborn, in turn, transfer to ChoicePoint the proceeds from the sale of the share capital of Osborn Canada; and WHEREAS, in connection with the sale and purchase of the issued and outstanding shares of capital stock of Osborn, LabOne desires to purchase from ChoicePoint, and ChoicePoint desires to provide to LabOne, certain transition services described more particularly herein; NOW, THEREFORE, in consideration of the premises and the mutual promises and agreements contained herein, the parties hereto, intending to be legally bound, hereby agree as follows: SECTION 1. PURCHASE OF OSBORN SHARES. 1.1 Transfer of Osborn Shares. On the terms and subject to the conditions set forth in this Agreement, ChoicePoint hereby sells, assigns, transfers, and delivers to LabOne, and LabOne hereby purchases from ChoicePoint, one (1) share of common stock of Osborn (the "Osborn Shares"), which Osborn Shares constitute all of the issued and outstanding shares of capital stock of Osborn. 1.2 Purchase Price. On the terms and subject to the conditions set forth in this Agreement, in consideration for all of the Osborn Shares, subject to adjustment pursuant to Section 1.4, LabOne shall pay to ChoicePoint the purchase price (the "Purchase Price") for the Osborn Shares in the amount of FORTY-EIGHT MILLION SIX HUNDRED FIFTY THOUSAND DOLLARS ($48,650,000), which amount LabOne hereby pays in accordance with Section 1.3. 1.3 Delivery of Osborn Shares and Payment of Purchase Price. Contemporaneously with the execution of this Agreement, (a) against delivery of the Purchase Price, ChoicePoint is delivering to LabOne a certificate or certificates in definitive form evidencing the Osborn Shares, duly endorsed for transfer, or accompanied by a stock transfer power duly endorsed in blank, with all requisite stock transfer Taxes (as hereinafter defined) paid and stamps affixed, and (b) against delivery of the Osborn Shares, LabOne is delivering or causing to be delivered to ChoicePoint by wire transfer of immediately available funds the amount of FORTY-EIGHT MILLION SIX HUNDRED FIFTY THOUSAND DOLLARS ($48,650,000), which amount is being wire transferred to ChoicePoint's account number 13-028-140 (ChoicePoint Inc. - Master Account) at Wachovia Bank of Georgia (ABA #061-000-010), Atlanta, Georgia. 1.4 Working Capital Adjustment. (a) Definition of Net Working Capital. For purposes of this Section 1.4, the term "Net Working Capital" means the "Current Assets" (as hereinafter defined) over the "Current Liabilities" (as hereinafter defined) of the Osborn Entities, as of 5:00 p.m., Kansas City, Missouri time, on the date hereof (the "Statement Date"), in each case as determined, except as otherwise provided herein, in accordance with generally accepted accounting principles applied consistently with past practices ("GAAP"). As used herein, the term "Current Assets" means those assets of the type listed on Annex 1 hereto (less applicable reserves), and the term "Current Liabilities" means those liabilities of the type listed on Annex 2 hereto. For the purposes of determining the "Net Working Capital", it is understood that Osborn Canada shall continue to be considered an Osborn Entity notwithstanding the sale of the "Osborn Canada Shares" (as hereinafter defined) to LabOne pursuant to Section 2.4 hereof prior to the sale and purchase of the Osborn Shares. -2- (b) Preparation of Proposed Working Capital Statement. Within sixty (60) days after the date hereof, LabOne shall prepare and deliver to ChoicePoint, at the sole expense of LabOne, a statement of the Osborn Entities (the "Proposed Working Capital Statement"), which Proposed Working Capital Statement shall set forth its proposed calculation of the Current Assets, the Current Liabilities, and the Net Working Capital as of the Statement Date and shall make available to ChoicePoint for review and copying all work papers relating to the Proposed Working Capital Statement. Except as otherwise provided herein or set forth on Annex 3 hereto, the Proposed Working Capital Statement shall be prepared in accordance with GAAP after giving effect (except as hereinafter noted) to the transactions (the "Pre-Closing Transactions") contemplated by this Agreement (including, without limitation, each of the transactions described in Sections 2.1, 2.2, 2.3, 2.5 and 2.6 hereof, but excluding the transaction described in Section 2.4 hereof ). For the purposes of the determination of the Net Working Capital and the Final Working Capital Statement, the Pre-Closing Transactions shall be deemed to have been completed on or prior to the Statement Date. (c) Examination of Proposed Working Capital Statement. ChoicePoint shall review the Proposed Working Capital Statement to confirm the accuracy of the Proposed Working Capital Statement and of LabOne's calculation of the Net Working Capital. If ChoicePoint fails to give LabOne written notice of any disputed amounts within thirty (30) days after ChoicePoint receives the Proposed Working Capital Statement (the "Review Period"), then the Proposed Working Capital Statement shall become the "Final Working Capital Statement" (as hereinafter defined) for purposes hereof. If ChoicePoint gives LabOne written notice of any disputed items and its proposed calculation of Net Working Capital within the Review Period, ChoicePoint and LabOne shall attempt in good faith to agree on any adjustments that should be made to the Proposed Working Capital Statement in order to reflect the Net Working Capital. If ChoicePoint and LabOne are unable to resolve any disputed amounts within sixty (60) days after ChoicePoint receives the Proposed Working Capital Statement, ChoicePoint and LabOne will engage the Kansas City, Missouri office of PricewaterhouseCoopers LLP (the "Audit Firm") to resolve any such disputed matters in accordance with the terms of this Agreement. If possible, the decision of the Audit Firm shall be made within thirty (30) days after being engaged. The decision of the Audit Firm shall be final and binding on the parties. The Proposed Working Capital Statement shall be revised, if necessary, to reflect the final determination of the Net Working Capital (the final form of the Proposed Working Capital Statement, including any revisions which are made thereto pursuant to this Section 1.4(c), is referred to herein as the "Final Working Capital Statement"). (d) Adjustments. The parties hereto acknowledge that the consideration being paid to ChoicePoint pursuant to Section 1.2 is based on the assumption that the Net Working Capital of Osborn shall be equal to -$719,731 (the "Assumed Net Working Capital"). Accordingly, the parties hereto agree that if the Net Working Capital as reflected on the Final Working Capital Statement is less than the Assumed Net Working Capital (i.e., the Assumed Net Working Capital is -$719,732 or a greater negative number) (the amount of such shortfall, if any, is hereinafter referred to as the "Working Capital Deficit"), ChoicePoint shall pay to LabOne, on a dollar for dollar basis, an amount equal to the Working Capital Deficit (such payment shall be hereinafter referred -3- to as a "Working Capital Payment"). The Working Capital Payment, if any, shall be paid to LabOne within ten (10) days of the final determination of the Final Working Capital Statement. If the Net Working Capital as reflected on the Final Working Capital Statement is greater than the Assumed Net Working Capital (i.e., the Assumed Net Working Capital is -$719,730 or either a lesser negative number or zero or a positive number) (the amount of such excess is hereinafter referred to as the "Working Capital Surplus"), LabOne shall pay to ChoicePoint, on a dollar for dollar basis, an amount equal to the Working Capital Surplus. The Working Capital Surplus, if any, shall be paid by LabOne to ChoicePoint within ten (10) days of the final determination of the Final Working Capital Statement. The determination of the Working Capital Deficit or the Working Capital Surplus, as the case may be, shall be made immediately following the final determination of the Final Working Capital Statement. (e) Expenses of Audit Firm. In the event the parties submit any unresolved objections to the Audit Firm for resolution as provided in Section 1.4(c) above, LabOne, on the one hand, and the ChoicePoint Entities, jointly and severally, on the other hand, will each be obligated to pay fifty percent (50%) of the fees and expenses of the Audit Firm; provided, however, that if the Audit Firm's final determination of Net Working Capital varies from either LabOne's or ChoicePoint's determination of Net Working Capital (but not both) by more than ten percent (10%), the party whose determination of Net Working Capital so varied by more than ten percent (10%) from that of the Audit Firm shall bear one hundred percent (100%) of the Audit Firm's fees and expenses. SECTION 2. RELATED MATTERS. 2.1 Transfer of Real Property. (a) Prior to or on the date hereof, the Osborn Entities have transferred to ChoicePoint all of the Owned Real Property (as defined in Section 3.5(a)), together with all benefits and liabilities associated therewith. (b) Prior to or on the date hereof, ChoicePoint has transferred to the Osborn Entities the Retained Real Property Leases (as defined in Section 3.5(a)), together with all benefits and liabilities associated therewith. 2.2 Transfer of Personal Property and Intellectual Property. (a) Prior to or on the date hereof, the Osborn Entities have transferred to ChoicePoint or an Affiliate thereof (i) all of the ChoicePoint Personal Property (as defined in Section 3.5(b)) and the ChoicePoint Personal Property Leases (as defined in Section 3.5(b)), together with all benefits and liabilities associated therewith and (ii) the trademarks, tradenames, service marks, patents and other intellectual property set forth on Schedule 2.2(a)(ii). (b) Prior to or on the date hereof, ChoicePoint has transferred, or caused to be transferred, to the Osborn Entities all of the personal property and, if applicable, the leases related thereto set forth on Schedule 2.2(b)(i), together with all benefits and -4- liabilities associated therewith and (ii) the trademarks, tradenames and service marks set forth on Schedule 2.2(b)(ii). 2.3 Transfer of CHS Capital Stock. Prior to or on the date hereof, Osborn has transferred to ChoicePoint all of the capital stock of CHS, which corporation owns the Appraise line of home test kits for the monitoring of disease (the "Appraise Product"). 2.4 Sale of Osborn Canada Shares. Immediately prior to the sale and purchase of the Osborn Shares, pursuant to an agreement mutually acceptable to the parties (the "Osborn Canada Stock Purchase Agreement"), ChoicePoint has caused Osborn to sell, and LabOne has caused LabOne Canada, Inc. to purchase, one hundred (100) shares of share capital of Osborn Canada (the "Osborn Canada Shares"), which Osborn Canada Shares constitute all of the issued and outstanding shares of share capital of Osborn Canada. 2.5 Transfer of Accounts Receivable; Cooperation with Respect to Accounts Receivable. (a) Prior to or on the date hereof, the Osborn Entities have transferred to ChoicePoint all of the right, title and interest of the Osborn Entities in and to all accounts receivable, including, without limitation, trade and miscellaneous accounts receivable as of the Statement Date (including accruals for earned rebates, either in cash credit or materials), as well as unbilled business accounts for services completed as of the Statement Date, related to the Business (as hereinafter defined) (the "Accounts Receivable"). (b) After the date hereof and through December 31, 2001, in connection with collection efforts with respect to the Accounts Receivable, LabOne shall use its commercially reasonable efforts (which in no event shall require referral for collection or instituting of any litigation), and LabOne shall make available to the ChoicePoint Entities employees of LabOne or the Osborn Entities (or the Contract Employees (as hereinafter defined)) who are knowledgeable about the Accounts Receivable and the background of the invoices and product shipments underlying such Account Receivables, and, in connection with such collection efforts, LabOne and the ChoicePoint Entities shall not treat differently the Accounts Receivable and other accounts receivable owned by LabOne. After the term of the Transition Services Agreement, ChoicePoint and LabOne shall mutually agree upon procedures for collection of the Accounts Receivable. LabOne and the ChoicePoint Entities shall ensure that, when LabOne receives a payment for accounts receivable after the date hereof, such payment can be specifically identified to a particular invoice and/or bill of lading, so that such payment can be applied to the applicable invoice and/or bill of lading therefor. If a payment cannot be allocated to a particular invoice, it shall be applied to the oldest invoice of that account debtor. LabOne shall forward to ChoicePoint on a weekly basis all amounts received by LabOne or any Osborn Entity with respect to the Accounts Receivable, which amounts shall be wire transferred to ChoicePoint's account number 13-028-140 (ChoicePoint Inc. - Master Account) at Wachovia Bank of Georgia (ABA #061-000-010), Atlanta, Georgia or such other bank account as ChoicePoint shall designate. -5- 2.6 Distributions. Prior to or on the date hereof, the Osborn Entities have transferred to ChoicePoint or one of its Affiliates all cash held by the Osborn Entities by one or more cash dividends and/or other distributions. Except as provided in Section 1.4, no adjustment shall be made to the Purchase Price as a result of any such dividends or other distributions paid to ChoicePoint or its Affiliates. LabOne agrees that, in order to effect the distributions contemplated by this Section 2.6, on or prior to the date hereof, ChoicePoint shall be permitted to make one or more withdrawals from the bank accounts of the Osborn Entities for cash balances as of the close of business on the Statement Date, and, subsequent to the date hereof, LabOne shall make one or more wire transfers to ChoicePoint's account number 13-028-140 (ChoicePoint Inc. - - Master Account) at Wachovia Bank of Georgia (ABA #061-000-010), Atlanta, Georgia, for cash balances in such bank accounts as of the close of business on the Statement Date. 2.7 Transition Services. Except as provided in the Transition Services Agreement (as hereinafter defined), on the date hereof, ChoicePoint is terminating all data processing, accounting, insurance, banking, personnel, legal, communications, employee benefit programs and other services provided to the Osborn Entities by ChoicePoint or any Affiliate of ChoicePoint, including any agreements or understandings (written or oral) with respect thereto. 2.8 Further Assurances. Each party hereto shall on the date hereof and from time to time hereafter, at any other party's reasonable request and without further consideration, execute and deliver to such other party such instruments of transfer, conveyance, and assignment in addition to those delivered pursuant to this Section 2 as shall be reasonably requested to effect the transactions contemplated by this Section 2. SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CHOICEPOINT ENTITIES. Each of the ChoicePoint Entities hereby jointly and severally represents and warrants to LabOne as follows: 3.1 Organization. ChoicePoint is a corporation duly incorporated, validly existing, and in good standing under the Laws of the State of Georgia. Osborn is a corporation duly incorporated, validly existing, and in good standing under the Laws of the State of Delaware. Each of the Osborn Subsidiaries is a corporation duly incorporated, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation. Each of ChoicePoint and the Osborn Entities has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as now being conducted. Except as disclosed on Schedule 3.1, each of the Osborn Entities is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the character of its activities or the location of its owned or leased properties requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect. As used in this Agreement, the term "Material Adverse Effect" means any change, effect, condition, event or circumstance that has been, is, or is reasonably likely to be materially adverse to the financial condition, business, or results of operations of the Osborn Entities. ChoicePoint has heretofore made available to LabOne correct and complete copies of the charter documents and bylaws (or other governing documents) as currently in effect and the minute books and stock records of the Osborn Entities. The minute books and stock records of the Osborn Entities are complete and correct and -6- accurately reflect in all material respects all action taken at all meetings of the shareholders and Boards of Directors (and committees thereof, if any) of such entities and accurately record the issuance and transfer of all issued shares of capital stock of such entities. Schedule 3.1 contains a correct and complete list of the jurisdictions in which each of the Osborn Entities is qualified to do business as a foreign corporation. None of the Osborn Entities is in default in the performance, observance or fulfillment of any provision of its charter or bylaws (or other governing documents). 3.2 Authorization. ChoicePoint has the corporate power and authority to execute and deliver this Agreement, the Transition Services Agreement and each other certificate, instrument and agreement executed and delivered in connection with this Agreement (together with the Transition Services Agreement, the "Ancillary Agreements") to which it is party, and perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and each Ancillary Agreement to which it is a party and the performance by ChoicePoint of its covenants and agreements hereunder and thereunder have been duly and validly authorized by the Board of Directors of ChoicePoint, and no other corporate proceedings on the part of ChoicePoint or its Affiliates are necessary to authorize the execution, delivery and performance of this Agreement and each Ancillary Agreement to which it is a party or the consummation of the transactions so contemplated. Each of this Agreement and each Ancillary Agreement to which it is party has been duly executed and delivered by ChoicePoint and constitutes a valid and binding agreement of ChoicePoint, enforceable against ChoicePoint in accordance with its terms, except that (a) such enforcement may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other Laws, now or hereafter in effect, relating to or limiting creditors' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As used herein, "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this Agreement, (i) "control", when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise, (ii) "controlling" and "controlled" have meanings correlative to the foregoing, and (iii) "Person" means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, or other entity or any government or any agency or political subdivision thereof. 3.3 Absence of Restrictions and Conflicts. The execution, delivery, and performance of this Agreement and the Ancillary Agreements, the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, and the fulfillment of and compliance with the terms and conditions of this Agreement and the Ancillary Agreements do not and will not (as the case may be), with or without the passing of time or the giving of notice or both, violate or conflict with, constitute a breach of or default under, result in any penalty or payment becoming due under, result in the loss of any benefit under, or permit the acceleration or termination of any right or obligation under, (a) any term or provision of the charter documents or bylaws (or other governing documents) of ChoicePoint or any Osborn Entity, (b) except as set forth on Schedule 3.3, any "Osborn Contract", "Retained Real Property Lease", or "Retained Personal Property Lease" (all as hereinafter defined), (c) except as set forth on Schedule 3.3, any judgment, decree, consent decree, ruling, settlement agreement, stipulation, -7- award, injunction, subpoena or order (each an "Order") of any court, tribunal, arbitrator, securities exchange, or governmental, judicial or regulatory body, authority or agency (each a "Governmental Authority") to which ChoicePoint or any Osborn Entity is party or by which ChoicePoint or any Osborn Entity or any of their respective properties or assets are bound, (d) except as set forth on Schedule 3.3, any foreign or domestic statute, writ, ordinance, law, rule, directive or guideline issued by a Governmental Authority (whether or not having the force of law) or regulation (each a "Law") applicable to ChoicePoint or any Osborn Entity, or (e) except as set forth on Schedule 3.3, any "License" (as hereinafter defined). Except as set forth on Schedule 3.3, no consent, approval, Order, or authorization of, or registration, declaration, or filing with, or notice to, any Governmental Authority with respect to ChoicePoint or the Osborn Entities is required in connection with the execution, delivery, or performance of this Agreement and the Ancillary Agreements or the consummation of the transactions contemplated hereby and thereby. 3.4 Capitalization. (a) Osborn. The authorized capital stock of Osborn consists solely of (i) 250,000 shares of common stock, $0.10 par value per share (the "Osborn Common Stock"), of which one (1) share is issued and outstanding, and (ii) 150,000 shares of preferred stock, $0.10 par value per share, of which 100,000 have been designated as "Series A Convertible Preferred Stock" and of which there are no shares issued and outstanding. Except as set forth on Schedule 3.4(a), there are no shares of Osborn Common Stock held as treasury stock by Osborn. Each outstanding share of Osborn Common Stock is duly authorized, validly issued, fully paid, nonassessable, and free of preemptive rights. No such shares have been issued in violation of any preemptive rights, rights of first refusal or other similar rights of any Person or any federal or state securities Law and there are no outstanding proxies or voting restrictions relating to such shares. Except as set forth in this Section 3.4(a), there are no shares of capital stock of Osborn outstanding, and there are no authorized or outstanding subscriptions, options, convertible securities, calls, puts, rights, warrants, or other agreements, claims, or commitments of any nature whatsoever obligating Osborn to purchase, redeem, issue, transfer, deliver, or sell, or cause to be purchased, redeemed, issued, transferred, delivered, or sold, additional shares of the capital stock or other securities of Osborn or obligating Osborn to grant, extend, or enter into any such agreement or commitment. Except as set forth on Schedule 3.4(a), and other than with respect to dividends and other distributions permitted by Section 2, there are no dividends which have accrued or been declared but are unpaid on the capital stock or equity of Osborn, and there are no stock appreciation, phantom stock, or similar rights with respect to the capital stock or equity of Osborn. ChoicePoint owns, beneficially and of record, and has the right to transfer to LabOne, all of the Osborn Shares, free and clear of any and all liens, pledges, security interests, charges, claims, restrictions, leasehold interests, tenancies, restrictions, and encumbrances of any nature whatsoever (hereinafter collectively referred to as "Liens"). (b) Osborn Subsidiaries. Set forth on Schedule 3.4(b) is a complete and accurate list for each Osborn Subsidiary of: (i) its jurisdiction of incorporation or organization, (ii) its authorized capital stock or share capital, (iii) the number of issued and outstanding shares of its capital stock or share capital and (iv) the holder or holders -8- of such shares. There are no shares of capital stock or share capital held as treasury stock by any Osborn Subsidiary. Except for the ownership of the Osborn Subsidiaries and as set forth on Schedule 3.4(b), none of the Osborn Entities owns beneficially or otherwise, directly or indirectly, or has any obligation or option to acquire, any capital stock of, other securities of, or other equity, ownership or participating interest in, or has any obligation to form or participate in, or advance, contribute or loan funds to, any corporation, partnership or other Person. Osborn has good and marketable title to, and is the record and beneficial owner of, the shares of capital stock or share capital of each Osborn Subsidiary as set forth on Schedule 3.4(b), free and clear of any Liens. All of the outstanding shares of capital stock or share capital of each of the Osborn Subsidiaries are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. No such shares have been issued in violation of any preemptive rights, rights of first refusal or similar rights of any Person or any federal, state or provincial securities Law and there are no outstanding proxies or voting restrictions relating to such shares. Except as set forth on Schedule 3.4(b), there are no shares of capital stock or share capital of any Osborn Subsidiary authorized or outstanding, and there are no authorized or outstanding subscriptions, options, convertible securities, calls, puts, rights, warrants, or other agreements, claims, or commitments of any nature whatsoever obligating Osborn or any Osborn Subsidiary to purchase, redeem, issue, transfer, deliver, or sell, or cause to be purchased, redeemed, issued, transferred, delivered, or sold, additional shares of the capital stock, share capital or other securities of any Osborn Subsidiary or obligating Osborn or any Osborn Subsidiary to grant, extend, or enter into any such agreement or commitment. Except as set forth on Schedule 3.4(b), and other than with respect to dividends and other distributions permitted by Section 2, there are no dividends which have accrued or been declared but are unpaid on the capital stock or equity of any Osborn Subsidiary, and there are no stock appreciation, phantom stock, or similar rights with respect to the capital stock or equity of any Osborn Subsidiary. (c) Assets of CHS. The rights, properties and assets of CHS, the stock of which is to be transferred to the ChoicePoint Entities prior to or on the date hereof, are not necessary to conduct the Business. 3.5 Ownership of Assets and Related Matters. (a) Real Property. Schedule 3.5(a)(1) sets forth a correct and complete list of all real property currently owned by any Osborn Entity (the "Owned Real Property"). Schedule 3.5(a)(2) sets forth a correct and complete list of all leases, subleases and other agreements granting to any Osborn Entity possession of or rights to real property (the "Retained Real Property Leases"). Each Osborn Entity party to a Retained Real Property Lease has a valid and subsisting leasehold interest in the real property subject thereto free and clear of all Liens, and there exists no material default on the part of any such Osborn Entity, or to the knowledge of ChoicePoint, any other party thereto, under any such Retained Real Property Lease. The Osborn Entities have at all times used and operated the real property subject to the Retained Real Property Leases in material compliance and conformity with all applicable Laws, Orders and Licenses relating thereto. -9- (b) ChoicePoint Personal Property. Part A of Schedule 3.5(b)(1) sets forth a correct and complete list of all personal property currently leased by any Osborn Entity that is being transferred to ChoicePoint pursuant to Section 2.2 (the "ChoicePoint Leased Personal Property"), and Part B of Schedule 3.5(b)(1) sets forth a correct and complete list (in each case identifying the Retained Personal Property Lease relating thereto) of all personal property currently leased by any Osborn Entity that is not being transferred to ChoicePoint pursuant to Section 2.2 (the "Retained Leased Personal Property"). Part A of Schedule 3.5(b)(2) sets forth a correct and complete list of all leases and agreements granting any Osborn Entity possession of or rights to ChoicePoint Leased Personal Property (the "ChoicePoint Personal Property Leases"), and Part B of Schedule 3.5(b)(2) sets forth a correct and complete list of all leases and agreements granting any Osborn Entity possession of or rights to Retained Leased Personal Property (the "Retained Personal Property Leases" and, together with the ChoicePoint Personal Property Leases, the "Personal Property Leases"). Schedule 3.5(b)(3) sets forth a correct and complete list of all personal property owned by any Osborn Entity that is being transferred to ChoicePoint pursuant to Section 2.2 of this Agreement (the "ChoicePoint Owned Personal Property," and together with the ChoicePoint Leased Personal Property, collectively, the "ChoicePoint Personal Property"). (c) Ownership, Condition and Sufficiency of Assets. Except as disclosed on Schedule 3.5(c), after giving effect to the transfers contemplated by Section 2 of this Agreement, the Osborn Entities own, free and clear of all Liens (other than (x) Liens for taxes not yet due and payable or (y) imperfections of title that do not interfere with or impair in any material respect the use or value of the assets subject thereto ("Permitted Liens")), or have adequate rights to use (with respect to (i) assets leased under the Retained Real Property Leases and the Retained Personal Property Leases, (ii) software licensed to the Osborn Entities, and (iii) assets owned by any Affiliate of ChoicePoint other than the Osborn Entities that are to be used to provide the services contemplated by the Transition Services Agreement), all assets and properties currently used in, or necessary to, the operation of the Business. Except as disclosed on Schedule 3.5(c), all tangible personal property owned by any Osborn Entity that is not being transferred to ChoicePoint pursuant to Section 2 of this Agreement (the "Retained Owned Personal Property") and all Retained Leased Personal Property (the Retained Owned Personal Property and the Retained Leased Personal Property being referred to herein, collectively, as the "Retained Personal Property") (i) has been maintained in a reasonable state of repair (ordinary wear and tear excepted) and, in the case of Retained Leased Personal Property, in compliance in all material respects with the Retained Personal Property Leases relating thereto, and (ii) substantially conforms in all material respects with all applicable Orders, Laws and Licenses relating thereto, including, without limitation, all applicable ordinances, codes, regulations and other legal requirements relating to the environment or occupational safety, and no Law presently in effect or condition precludes or restricts continuation of the present use of such properties. (d) List of Accounts. Schedule 3.5(d) contains a true and correct list of (i) all bank and securities accounts and all safe deposit boxes maintained by the Osborn Entities and a listing of the Persons authorized to draw thereon or make withdrawals therefrom or, -10- in the case of safe deposit boxes, with access thereto and (ii) all Persons authorized to act under any corporate borrowing, depository and transfer resolutions of any Osborn Entity. 3.6 Financial Statements. ChoicePoint has delivered to LabOne the following: (a) the unaudited consolidated balance sheets and related unaudited statements of operations of the Osborn Entities as of and for the fiscal years ended December 31, 1998, 1999 and 2000 (the "Year-End Financial Statements"); and (b) the unaudited consolidated and consolidating balance sheet of the Osborn Entities as of July 31, 2001 (the "Interim Balance Sheet") and the related unaudited statement of operations for the seven-month period ended July 31, 2001 (together with the Interim Balance Sheet, the "Interim Financial Statements"). The Year-End Financial Statements and the Interim Financial Statements are hereinafter referred to, collectively, as the "Financial Statements." Copies of the Financial Statements are attached as Schedule 3.6(1). Except as disclosed on Schedule 3.6(2), the Financial Statements have been prepared from, and are in accordance with, the books and records of the Osborn Entities (which books and records are maintained in accordance with GAAP) and in accordance with GAAP. Except as disclosed on Schedule 3.6(2), the balance sheets included in the Financial Statements fairly present the financial position of the Osborn Entities, as of the respective dates thereof, and the statements of operations included in the Financial Statements fairly present the results of operations of the Osborn Entities for the respective periods set forth therein, in each case in accordance with GAAP, subject, in the case of the Interim Financial Statements, to normal non-material year-end adjustments. The Osborn Year-End Financial Statements (as hereinafter defined) are auditable. 3.7 No Undisclosed Liabilities. Except as disclosed on Schedule 3.7, the Osborn Entities do not have any liabilities, debts or obligations, whether accrued, absolute, contingent, or otherwise, which are not adequately reflected or provided for in the Financial Statements, except liabilities and debts incurred since the date of the Interim Balance Sheet in the ordinary course of business and except for obligations disclosed pursuant to this Agreement or for obligations otherwise incurred in the ordinary course of business which are not required to be disclosed in accordance with GAAP. 3.8 Absence of Certain Changes. (a) Except as set forth on Schedule 3.8(a), except as reflected or provided for in the Financial Statements and except for the transactions expressly contemplated by this Agreement, since June 30, 2001, there has not been (i) any Material Adverse Effect, (ii) any amendment to or modification of the charter documents or bylaws (or other governing documents) of any Osborn Entity, (iii) any damage, destruction, loss, or casualty to property or assets of any of the Osborn Entities (whether or not covered by insurance), (iv) any declaration, setting aside, or payment of any dividend or distribution (whether in cash, stock, or property) in respect of the capital stock of Osborn, any redemption or other acquisition by Osborn of any of the capital stock of Osborn, or any split, combination, or reclassification of shares of capital stock declared or made by -11- Osborn, (v) other than cash distributions by the Osborn Subsidiaries to Osborn made in the ordinary course of business, any transfer, lease, sale, license or other disposition of assets, acquisition of assets, assumption of debts or other liabilities or obligations, loan or contribution, or other intercompany transaction, between or among any of the Osborn Entities and any Affiliate (as hereinafter defined) of the Osborn Entities, (vi) any acquisition of assets from Persons other than Affiliates of the Osborn Entities other than in the ordinary course of business and consistent with past practice or (vii) any agreement to do any of the foregoing. Except as reflected or provided for in the Financial Statements, since June 30, 2001, the Osborn Entities have (1) extended credit to customers and paid accounts payable and similar obligations only in the ordinary course of business consistent with past practice and (2) conducted the Business in the ordinary course on a basis consistent with past practice and not engaged in any new line of business or entered into any agreement, transaction, or activity or made any commitment except those in the ordinary course of business and consistent with past practice. (b) Except as set forth on Schedule 3.8(b), except as reflected or provided for in the Financial Statements and except for the transactions expressly contemplated by this Agreement, with respect to the Osborn Entities, since June 30, 2001, there have not been (i) any extraordinary losses suffered, (ii) any incurrence or assumption by any Osborn Entity of any indebtedness for borrowed money or obligations in respect of letters of credit or incurrence or assumption by any Osborn Entity of any guarantees of any debts, liabilities or obligations of any third Persons, (iii) any assets mortgaged, pledged, or made subject to any Lien other than Permitted Liens, (iv) any material liability or obligation (whether absolute, accrued, contingent, or otherwise) incurred except in the ordinary course of business and consistent with past practice, (v) any Liens, claims, liabilities, debts or obligations (absolute, accrued, contingent or otherwise) paid, discharged, or satisfied, other than in the ordinary course of business and consistent with past practice, (vi) any notes or guaranteed checks which have been written off as uncollectible, except write-offs in the ordinary course of business consistent with past practice the aggregate amount of which does not exceed $50,000 in the aggregate, (vii) any write-down of the value of any asset or investment on the books or records of any Osborn Entity, except for depreciation and amortization taken in the ordinary course of business consistent with past practice the aggregate amount of which does not exceed $50,000 in the aggregate, (viii) any cancellation of any debts or waiver or release of any claims or rights of value, or sale, lease, license, transfer, or other disposition of any properties or assets (real, personal, or mixed, tangible or intangible) of value, except, in each such case, in transactions with Persons other than Affiliates in the ordinary course of business consistent with past practice which in any event do not exceed $50,000 in the aggregate based on purchase price or net book value, (ix) (A) any increase in the compensation of officers or directors, whether now or hereafter payable, or (B) any increase in the compensation of employees, whether now or hereafter payable, or any amendment to any employment, independent contractor, severance or consulting agreement or other Company Benefit Plan (as hereinafter defined) that increases the term thereof or the liabilities or obligations of any Osborn Entity thereunder, other than in the ordinary course of business consistent with past practice (x) any material adverse change on any Osborn Entity's relations with its employees, leased employees or suppliers or any Material Customer (as hereinafter defined), (xi) any increase of any reserves for -12- contingent liabilities (excluding any adjustment to bad debt, workers' compensation, or group insurance reserves in the ordinary course of business consistent with past practice), (xii) termination of any employee of any Osborn Entity other than in the ordinary course of business consistent with past practice, (xiii) any surrender or revocation of any License (as hereinafter defined), (xiv) any transactions entered into other than in the ordinary course of business, (xv) any material change in prices charged any of the Material Customers (as hereinafter defined), (xvi) any agreements to do any of the foregoing, or (xvii) any change by Osborn in any method of accounting or keeping its books of account or accounting practices. (c) Schedule 3.8(c) sets forth a complete and correct list of all capital expenditures in excess of $50,000 per project (or series of related projects) made by the Osborn Entities from January 1, 2001 through June 30, 2001 and sets forth a complete and correct list of all capital expenditures and commitments in excess of $50,000 per project approved for fiscal year ending December 31, 2001 or thereafter. 3.9 Legal Proceedings. Except as listed and described on Schedule 3.9, there are no suits, actions, claims, or proceedings, or, to the knowledge of ChoicePoint, investigations pending or threatened against any of the Osborn Entities or any of their properties or assets, by or before any Governmental Authority. None of such suits, actions, claims, proceedings, or investigations, if finally determined adversely, are reasonably likely, individually or in the aggregate, to have a Material Adverse Effect. There is no claim, action, suit, proceeding or governmental investigation pending or, to the knowledge of ChoicePoint, threatened against any of the ChoicePoint Entities or the Osborn Entities, by or before any Governmental Authority or by any third party which challenges the validity of this Agreement or which would be reasonably likely to adversely affect or restrict either of the ChoicePoint Entities' ability to consummate the transactions contemplated hereby. 3.10 Licenses, Permits, and Compliance with Law. (a) The Osborn Entities have all authorizations, approvals, franchises, licenses, permits, consents, and Orders of and from all Governmental Authorities necessary to carry on the business of the Osborn Entities as currently conducted and as conducted within the six (6) months prior to the date hereof (other than the business related to the Appraise Product) (the "Business") in all material respects as it is currently being conducted (collectively, the "Licenses"). A complete and correct list of the Licenses is set forth on Schedule 3.10(a) hereto. Except as set forth on Schedule 3.10(a), each of the Osborn Entities is in compliance in all material respects with all Licenses and all applicable Laws and Orders to which it or any of its properties or assets is subject. None of the ChoicePoint Entities or the Osborn Entities has received any notice of any alleged violation of any of such Licenses, Laws or Orders. (b) Except as set forth on Schedule 3.10(b), (i) neither the conduct of the Business nor the condition or use of any real property owned or leased by the Osborn Entities violates any applicable Environmental Law (as hereinafter defined); (ii) to the knowledge of ChoicePoint, none of the Osborn Entities has stored or used any pollutants, contaminants or hazardous or toxic wastes, substances or materials in violation of any -13- Environmental Law on or at any real property owned or leased by it (or any predecessor thereof); (iii) no ChoicePoint Entity or Osborn Entity has received any notice from any Governmental Authority advising it that the condition any real property owned or leased by any Osborn Entity or the operation of the Business is in violation of any Environmental Law or any applicable Environmental Permit (as hereinafter defined) or that any Osborn Entity is responsible (or potentially responsible) for the cleanup of any pollutants, contaminants or hazardous or toxic wastes, substances or materials at, on or beneath any real property owned or leased by any Osborn Entity (or any predecessor thereof) or at, on or beneath any land adjacent thereto; (iv) none of the Osborn Entities is the subject of any governmental or private litigation or proceedings involving a demand for damages or other potential liability pursuant to any Environmental Laws or Common Law Environmental Principles (as hereinafter defined); (v) to the knowledge of ChoicePoint, none of the Osborn Entities have at any time buried, dumped, disposed, spilled or released any pollutants, contaminants or hazardous or toxic wastes, substances or materials on, beneath or about any real property owned or leased by it in violation of Environmental Laws; and (vi) to the knowledge of ChoicePoint, there is no condition or circumstance at, on or beneath any real property currently or previously owned or leased by any Osborn Entity (or any predecessor thereof), or at, on or beneath any property at which wastes of any Osborn Entity have been deposited or disposed by or at the behest or direction of the any Osborn Entity (or any predecessor thereof) that (x) requires abatement or correction by any Osborn Entity under any Environmental Law or Common Law Environmental Principle or (y) could reasonably be expected to give rise to any civil or criminal liability of any Osborn Entity under any Environmental Law or Common Law Environmental Principle. The Osborn Entities have timely filed all reports and obtained and complied in all respects with all Environmental Permits required to be filed or obtained by them under applicable Environmental Laws with respect to the real property owned or used by them and the operation of the Business, and each of the Osborn Entities has generated and maintained all data, documentation and records required to be generated or maintained by it under any applicable Environmental Laws with respect thereto. As used herein, (A) "Common Law Environmental Principles" means any principles of common law under which a Person may be held liable for the release or discharge of any pollutants, contaminants or hazardous or toxic wastes, substances or materials into the environment, (B) "Environmental Law" shall mean any Law or Order which relates to or otherwise imposes liability or standards of conduct concerning discharges or releases of any pollutants, contaminants or hazardous or toxic wastes, substances or materials into ambient air, water or land, or otherwise relating to the manufacture, processing, generation, distribution, use, treatment, storage, disposal, cleanup, transport or handling of pollutants, contaminants or hazardous or toxic wastes, substances or materials and (C) "Environmental Permit" shall mean any Licenses required by or pursuant to any applicable Environmental Law. (c) None of the Osborn Entities nor any officer, director, employee or agent thereof, nor any other Person acting on behalf thereof, acting alone or together, has (i) received, directly or indirectly, any rebates, payments, commissions, promotional allowances or any other economic benefits, regardless of their nature or type, from any customer, governmental employee or other Person with whom any Osborn Entity has done business directly or indirectly or (ii) directly or indirectly, given or agreed to give, -14- in violation of Law, any gift or similar benefit to any customer, governmental employee or other Person who is or may be in a position to help or hinder the Business (or assist any Osborn Entity with any actual or proposed transaction) which, under current Law, in the case of either clause (i) or clause (ii) above, could reasonably be expected to subject any Osborn Entity to any damage or penalty in any civil, criminal or governmental litigation or proceeding. 3.11 Material Contracts. Schedule 3.11 sets forth a correct and complete list of (and in the case of oral agreements, description of) all Material Contracts (as hereinafter defined) (which, exclusive of the Company Benefit Plans (as hereinafter defined), the Surety Bonds (as hereinafter defined), the ChoicePoint Personal Property Leases, and any insurance contracts, are herein referred to as the "Osborn Contracts"). Correct and complete copies of all Osborn Contracts have been delivered to LabOne. There are no existing material defaults (or events which, with notice or lapse of time or both, would constitute material defaults) of any Osborn Entity under any Osborn Contract, or, to the knowledge of ChoicePoint, of any of the other parties thereto. None of the ChoicePoint Entities or the Osborn Entities have been notified of any claim that any Osborn Contract is not valid and enforceable in accordance with its terms for the periods stated therein, or that there is under any such contract any existing default or event which, with notice or lapse of time, or both, would constitute a default. For purposes of this Section 3.11, "Material Contracts" include the following contracts, agreements, commitments, arrangements, understandings, or other instruments (in each case whether oral or written, but only to the extent legally binding) to which any Osborn Entity is a party or which any ChoicePoint Entity has assigned to any Osborn Entity (excluding any insurance contracts): (a) Indentures, credit agreements, letters of credit, security agreements, pledge agreements, guaranty agreements or other agreements and instruments relating to the borrowing of money, the extension of credit or the granting of Liens; (b) (i) Management, employment, independent contractor, severance and consulting agreements, (ii) all non-compete and confidentiality agreements with employees, independent contractors and other agents of any of the Osborn Entities or (iii) arrangements or agreements related to temporary services of any kind that require payments greater than $25,000 annually; (c) Union or other collective bargaining agreements; (d) Powers of attorney; (e) Sales agency, manufacturer's representative, and distributorship agreements or other distribution or commission arrangements; (f) Licenses of patents, trademarks, tradenames, logos, service marks, software (excluding standard "off the shelf" software with annual license payments less than $10,000), copyrights, know-how, and other intellectual property or proprietary rights; -15- (g) Agreements, orders, or commitments for the purchase of services, materials, supplies, or products from any one supplier or group of related suppliers for an amount in excess of $25,000; (h) Agreements, orders, or commitments for the sale of products or services for more than $25,000 to any single purchaser or group of related purchasers; (i) Agreements for capital expenditures in excess of $25,000 for any single project or series of related projects; (j) Joint venture agreements or other agreements providing for the sharing of revenues or payment of royalties; (k) Agreements requiring the consent of any party thereto to the consummation of the transactions contemplated by this Agreement; (l) Lease agreements under which any Osborn Entity is lessor and lease agreements under which any Osborn Entity is lessee and which have annual lease payments in excess of $25,000; (m) Agreements prohibiting, partially restricting, or otherwise limiting the ability of any Osborn Entity to compete, solicit customers, or otherwise conduct any business anywhere in the world; (n) Agreements relating to the acquisition or sale of any company, business, division, or other enterprise, whether in the form of stock purchase, asset acquisition, or otherwise and whether or not such acquisition or disposition was completed; (o) Surety bonds outstanding with respect to any Osborn Entity (the "Surety Bonds"); or (p) Other than as addressed above, other agreements, contracts, and commitments that involve payments or receipts of more than $25,000 in any single year, or that were entered into other than in the ordinary course of business (but excluding any insurance contracts). 3.12 Tax Returns; Taxes. Except as set forth on Schedule 3.12: (a) Either a ChoicePoint Entity or an Osborn Entity (i) has timely filed or caused to be filed on a timely basis with the appropriate taxing authorities all material Tax Returns (as hereinafter defined) required to be filed by or with respect to each Osborn Entity for all years and periods for which such Tax Returns have become due, and (ii) has paid all Taxes (as hereinafter defined) with respect to each such Osborn Entity (whether or not shown to be due on such Tax Returns), or where payment is not yet due, has established consistent with past practice, an adequate reserve on the books and records of such Osborn Entity for the payment of all such Taxes with respect to any -16- taxable period (or portion thereof) ending on or prior to the date hereof. Such Tax Returns are correct and complete in all material respects. (b) There are no Liens for Taxes with respect to the assets of the Osborn Entities (except for statutory liens for current Taxes not yet due); and (ii) neither the Osborn Entities nor any ChoicePoint Entity on behalf of any Osborn Entity has filed a consent pursuant to Section 341(f) of the Code. (c) The period of assessment under applicable Law, after giving effect to extensions or waivers, with respect to the Tax Returns of each Osborn Entity and any affiliated, consolidated, combined or unitary group of which any Osborn Entity is or was a member during a taxable period ended after December 31, 1994 (a "Tax Group") has expired for all of the taxable years of such Osborn Entity or such Tax Group, as the case may be. Schedule 3.12 indicates those Tax Returns of each Osborn Entity and any such Tax Group that, since 1994, either have been audited or are currently the subject of an audit. There is no dispute or claim (including any anticipated claim) concerning any Taxes of any Osborn Entity or any Tax Group either (i) claimed or raised by any authority in writing or (ii) as to which ChoicePoint or any of its Affiliates has knowledge after due inquiry. (d) For all periods from November 4, 1994, up to and including the date hereof, each Osborn Entity has been an includible member of the "affiliated group" (within the meaning of Section 1504 of the Code) of which the Parent is currently the parent; for such periods each Osborn Entity was entitled to report its income on consolidated federal income tax returns filed on behalf of such affiliated group and, for such periods, all federal income tax returns required to be filed by each Osborn Entity have been (or will be) duly and timely filed on behalf of such Osborn Entity on a consolidated basis. All other Tax Returns of each Osborn Entity have been filed on a separate company, non-combined, non-consolidated and non-unitary basis. (e) No ChoicePoint Entity, Osborn Entity or any of their Affiliates has (i) received or is the subject of an application for a tax ruling or entered into a legally binding agreement (such as a closing agreement) with a taxing authority, which ruling or agreement could have an effect on the Taxes of any Osborn Entity after the date hereof, or (ii) filed any election, or caused any deemed election, under Section 338 of the Code. (f) No extensions of time have been granted to any Osborn Entity or any Tax Group of which ChoicePoint is the common parent to file any Tax Return required by applicable Law to be filed by it prior to or on the date hereof, which have expired, or will expire, on or before the date hereof without such Tax Return having been filed, (ii) no deficiency or adjustment for any Taxes of any Osborn Entity or any Tax Group of which ChoicePoint is the common parent has been proposed, asserted or assessed in writing, and no federal, state, local, provincial or foreign audits or other administrative proceedings or court proceedings are pending with regard to any such Taxes of any Osborn Entity, (iii) no waiver or consent extending any statute of limitations for the assessment or collection of any Taxes has been executed by any Osborn Entity, nor have any requests for such waivers or consents been proposed in writing and (iv) none of the -17- Osborn Entities owns or leases any interest in real property in any jurisdiction in which a Tax will be payable with respect to such interest in real property as a result of the transactions contemplated hereby. (g) None of the Osborn Entities nor any Tax Group of which ChoicePoint is the common parent is or has ever been a party to any tax-sharing or allocation agreements, arrangements or understandings, whether written or oral. (h) None of the Osborn Entities is a party to any agreement, contract or arrangement that would result, by reason of the consummation of any of the transactions contemplated herein, separately or in the aggregate, in the payment by any Osborn Entity of any "excess parachute payments" within the meaning of Section 280G of the Code (i) Each Osborn Entity has complied with all applicable Laws relating to the withholding of Taxes (including withholding of Taxes pursuant to Sections 1441 and 1442 of the Code) and has, within the time and within the manner prescribed by Law, withheld and paid over to the proper taxing authorities all amounts required to be withheld and paid over under all applicable Laws in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. (j) None of the Osborn Entities is required to include in income any adjustment pursuant to Section 481(a) of the Code by reason of a voluntary change in accounting method (nor has any taxing authority proposed in writing any such adjustment or change of accounting method). (k) No power of attorney has been granted by or with respect to any Osborn Entity with respect to any matter relating to Taxes. (l) ChoicePoint does not have an excess loss account within the meaning of Treasury Regulation Section 1.1502-19 with respect to the stock of any Osborn Entity. (m) Since August 8, 1997 (and, to the knowledge of ChoicePoint, from November 4, 1994 to August 8, 1997), no written notice has been received, nor to the knowledge of ChoicePoint has any oral notice been received, by any Osborn Entity from any Governmental Authority in a jurisdiction where any Osborn Entity does not file Tax Returns stating that any such Osborn Entity is required to file Tax Returns with that jurisdiction. (n) ChoicePoint has previously delivered or made available to LabOne complete and accurate copies of each of: (i) all audit reports, letter rulings and technical advice memoranda relating to federal, state, local and foreign Taxes due from or with respect to each Osborn Entity and each Tax Group of which ChoicePoint is the common parent (but only to the extent they relate to an Osborn Entity) since November 4, 1994, (ii) the federal, state, local and foreign Tax Returns filed by each Osborn Entity since November 4, 1994 and (iii) any closing agreements entered into by each Osborn Entity with any taxing authority since November 4, 1994. -18- (o) None of the assets of any Osborn Entity or any Tax Group is required to be treated as being owned by any other Person pursuant to the "safe harbor" leasing provision of Section 168(f)(8) of the Internal Revenue Code of 1954, as in effect prior to the repeal thereof. (p) For purposes of this Agreement: (i) "Tax" means any (A) federal, state, provincial, local, or foreign income, gross receipts, gains, license, payroll, employment, excise, severance, escheat, stamp, occupation, premium, windfall profits, environmental, customs duty, capital stock, franchise, profits, withholding on amounts paid or received, social security, unemployment, workers' compensation, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax, governmental fee or other like assessment of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not, (B) liability of any Osborn Entity for the payment of any amounts of the type described in (A) as a result of being a member of an affiliated, consolidated, combined or unitary group for federal, state, local or foreign Tax purposes, or being a party to any agreement or arrangement whereby liability of any Osborn Entity for payments of such amounts was determined or taken into account with reference to the liability of any other Person for any period (or portion thereof) ending on or prior to the date hereof, and (C) liability of any Osborn Entity with respect to the payment of any amounts described in (A) as a result of any express or implied obligation to indemnify any other Person; (ii) "Tax Return" means any return, declaration, report, claim for refund, estimate, or information return or statement relating to Taxes or required by ERISA (as hereinafter defined), including any schedule or attachment thereto and any amendment thereof; and (iii) "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any regulations or published ruling promulgated or issued thereunder. 3.13 Employees and Independent Contractors; Officers and Directors. (a) Schedule 3.13(a) sets forth a correct and complete list of all (i) employees employed by each of the Osborn Entities or (ii) employees employed by the Parent, ChoicePoint and their Affiliates (other than the Osborn Entities) who spend substantially all their time performing services in connection with the administration and operation of the Business (each an "Employee" and, collectively, the "Employees"), together with their respective social security numbers, job titles, dates of hire, current base salary or hourly rate, bonus and severance arrangements with respect thereto and the subsidiary of the Parent by which they are employed. No Osborn Entity is a statutory employer, joint employer, single employer, alter ego, or any other form of constructive employer with respect to any individual not listed on Schedule 3.13(a) under any federal or state Laws -19- governing labor and employment. Except as set forth on Schedule 3.13(a), and except for the consultants, independent contractors and leased employees listed on Schedule 3.13(b), the Employees of the Osborn Entities are all of employees employed by the Parent, ChoicePoint and their Affiliates who spend substantially all their time performing services in connection with the administration and operation of the Business. (b) Schedule 3.13(b) sets forth a correct and complete list of all consultants to and independent contractors or leased employees of each of the Osborn Entities, as of the date hereof, together with their respective addresses, responsibilities, dates of engagement, and compensation. (c) Schedule 3.13(c) sets forth a correct and complete list of each officer and director of each of the Osborn Entities. (d) No individual who has been classified by any ChoicePoint Entity or Osborn Entity as a non-employee (i.e., an independent contractor, leased employee or consultant) has or will have a claim against any Osborn Entity for eligibility to participate in any employee benefit plan as a result of such individual being reclassified as an employee of an Osborn Entity for the period prior to the date hereof. 3.14 ERISA and Related Matters. (a) Schedule 3.14 lists all deferred compensation, pension, profit-sharing, and retirement plans, and all bonus, welfare, severance pay, and other "employee benefit plans" (as defined in Section 3(3) of ERISA), fringe benefit or stock option plans, including individual contracts, employee agreements, programs, or arrangements, providing the same or similar benefits, whether or not written, which are or have been participated in, or maintained by any Osborn Entity (or ChoicePoint Entity for the benefit of employees or former employees of any of the Osborn Entities or their dependents and beneficiaries) or with respect to which contributions are made or obligations assumed by any Osborn Entity (including health, life insurance, and other benefit plans maintained for former employees or retirees), at any time between August 8, 1997 and the date hereof. Said plans or other arrangements are sometimes individually referred to in this Agreement as a "Company Benefit Plan" and sometimes collectively referred to in this Agreement the "Company Benefit Plans." Copies of all Company Benefit Plans and related documents, including those setting out all personnel policies and procedures applicable to employees of the Osborn Entities, and including any insurance contracts, trust agreements, or other arrangements under which benefits are provided, as currently in effect, and descriptions of any such plan which are not written have been delivered or made available to LabOne. ChoicePoint has also delivered to LabOne a copy of the summary plan description, if any, for each Company Benefit Plan. As used herein, "Foreign Plan" means any employee benefit, pension scheme, retirement, profit sharing, health, dental, life or disability insurance plan, as well as any other plan, program or arrangement involving direct or indirect compensation, under which any Osborn Entity or ChoicePoint Entity has any present or future obligations or liability on behalf of any of the non-United States-based employees or former employees of any of the Osborn Entities or their dependents and beneficiaries, but shall not include any program pursuant -20- to which an employee directs payroll-deduction contributions to a personal savings account. (b) Except as set forth on Schedule 3.14, each ChoicePoint Entity or Osborn Entity, as applicable, has fulfilled its obligations, to the extent applicable, under the minimum funding requirements of Section 302 of ERISA and Section 412 of the Code, with respect to each "employee benefit plan" (as defined in Section 3(3) of ERISA) appearing on Schedule 3.14. Each Company Benefit Plan is in substantial compliance with, and has been administered in all material respects consistent with, the presently applicable provisions of ERISA, the Code, and state Law including but not limited to the satisfaction of all applicable reporting and disclosure requirements under the Code, ERISA, and state Law. Each ChoicePoint Entity or Osborn Entity, as applicable, has made all payments to all Company Benefit Plans required by the terms of each such plan in accordance, if applicable, with the actuarial and funding assumptions in effect as for the most recent actuarial valuation of such plans. No actuarial valuations or reports relating to said plans have been required by Law. The ChoicePoint Entities or Osborn Entities, as applicable, have filed or caused to be filed with the Internal Revenue Service annual reports on Form 5500 for each Company Benefit Plan attributable to them for all years and periods for which such reports were required and within the time period required by ERISA and the Code. Except as disclosed on Schedule 3.14, the ChoicePoint Entities or Osborn Entities, as applicable, have funded or will fund each Company Benefit Plan attributable to them in accordance with its terms through the date hereof including the payment of applicable premiums on any insurance contract funding a Company Benefit Plan for coverage provided through the date hereof. To the extent that any annual contribution for the current year is not yet required for any Company Benefit Plan as of the date hereof, the ChoicePoint Entities or Osborn Entities, as applicable, have made a pro rata contribution to said plan for the period ended at the date hereof or said contribution has been accrued on the books of the ChoicePoint Entities or Osborn Entities, as applicable. (c) Except as set forth on Schedule 3.14, to the knowledge of ChoicePoint, no non-exempt "prohibited transaction," as defined in Section 406 of ERISA and Section 4975 of the Code has occurred in respect of any such Company Benefit Plan, and no civil or criminal action brought pursuant to Part 5 of Title I or ERISA is pending or, to the knowledge of ChoicePoint, is threatened in writing or orally against any fiduciary of any such plan. (d) Except as set forth on Schedule 3.14, the Internal Revenue Service has issued a letter for each employee pension benefit plan which is a Company Benefit Plan, as defined in Section 3(2) of ERISA listed on Schedule 3.14, determining that such plan is a qualified plan under Section 401(a) of the Code and is exempt from United States Federal Income Tax under Section 501(a) of the Code, and, to the knowledge of ChoicePoint, there has been no occurrence since the date of any such determination letter which has adversely affected such qualification. Except as set forth on Schedule 3.14, none of the Company Benefit Plans is intended to qualify under Section 501(c)(9) of the Code. -21- (e) Except as set forth on Schedule 3.14, each Company Benefit Plan that provides medical benefits has been operated in compliance in all material respects with all requirements of Section 4980B(f) of the Code and Sections 601 through 608 of ERISA relating to continuation of coverage under certain circumstances in which coverage would otherwise cease. All former employees of the Osborn Entities entitled to such continuation of coverage, or other Persons entitled to such continuation of coverage through relationship to said former employees, are listed on Schedule 3.14. (f) None of the ChoicePoint Entities or Osborn Entities nor any entity that is treated as a single employer with any of them pursuant to Section 414(b), (c), (m), or (o) of the Code currently maintains or contributes to any Company Benefit Plan that is subject to Title IV of ERISA, nor has previously maintained or contributed to any such plan that has resulted in any liability or, to the knowledge of ChoicePoint, potential liability for any of the ChoicePoint Entities or Osborn Entities under said Title IV. As of the date hereof, there is no outstanding unpaid minimum funding waiver within the meaning of Code Section 412(d). (g) Except as disclosed on Schedule 3.14, none of the ChoicePoint Entities or Osborn Entities maintains any Company Benefit Plan, plans or programs that provide post-retirement medical benefits (other than benefits described in this Section 3.14 and those which are required by Law), post-employment benefits, death benefits, or other post-retirement welfare benefits to any employees or former employees of any Osborn Entity or their dependents or beneficiaries. A copy of any written description of post-retirement welfare benefits that has been provided to any employees or former employees of any Osborn Entity or their dependents or beneficiaries has been provided or made available to LabOne. Copies of each plan document, insurance contract, or other written instrument providing for such post-retirement welfare benefits, together with a description of any advance funding arrangement that has been established to fund post-retirement welfare benefits, has been provided or made available to LabOne. Schedule 3.14 contains a list of those Persons who are currently retired as of the date hereof with a right to any such future post-retirement welfare benefits and also contains a list of employees of the Osborn Entities who would be currently eligible for post-retirement welfare benefits if they retired and satisfied any waiting period provided for under the applicable plan. (h) None of the ChoicePoint Entities or Osborn Entities nor any employer referred to in Section 3.14(f) above maintains, nor has contributed within the past five (5) years to, any multiemployer plan within the meaning of Sections 3(37) or 4001(a)(3) of ERISA. No ChoicePoint Entity or Osborn Entity nor any such employer currently has any liability to make withdrawal liability payments to any multiemployer plan. There is no pending dispute between any ChoicePoint Entity or Osborn Entity or any such employer and any multiemployer plan concerning payment of contributions or payment of withdrawal liability payments. (i) Except as set forth on Schedule 3.14, no lawsuit or complaint against, by, or relating to any Company Benefit Plan or any fiduciary, as defined in Section 3(21) of ERISA has been filed or is pending. -22- (j) Each Foreign Plan has been maintained in accordance with all applicable Laws and in good standing with each applicable Governmental Authority. All contributions have been made with respect to all Foreign Plans on a timely basis. None of the Osborn Entities or ChoicePoint Entities has incurred any obligation in connection with the termination of or withdrawal from any Foreign Plan. The present value of the accrued benefit liabilities (whether vested or not) under each Foreign Plan, determined as of the end of the Osborn Entities' most recently ended fiscal year on the basis of actuarial assumptions provided for in such Foreign Plan, did not exceed the current value of the assets of such Foreign Plan. (k) Each Company Benefit Plan that allows loans to plan participants has been operated in accordance with its terms, the plan's written loan policy and all applicable Laws. In addition, all outstanding loans from such Company Benefit Plans are current as of the date hereof, and there are no loans in default, as to any employee of an Osborn Entity. (l) For purposes of this Agreement, (i) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any regulations or published rulings promulgated or issued thereunder and (ii) all references to the ChoicePoint Entities shall be deemed to be references to the Parent, ChoicePoint and their Affiliates. 3.15 Labor Matters. Except as set forth on Schedule 3.15: (i) none of the Osborn Entities is a party to any labor or collective bargaining agreement, (ii) there are no labor or collective bargaining agreements that pertain to any employees of any of the Osborn Entities, (iii) no employees of any of the Osborn Entities are represented by any labor organization, (iv) no labor organization or group of employees of any of the Osborn Entities has made a demand for recognition, and there are no representation proceedings or petitions seeking a representation proceeding presently pending or, to the knowledge of ChoicePoint, threatened to be brought or filed with the National Labor Relations Board or other labor relations tribunal relating to any of the Osborn Entities, (v) there are no organizing activities involving any of the Osborn Entities pending or, to the knowledge of ChoicePoint, threatened by any labor organization or group of employees of any of the Osborn Entities, (vi) there are no strikes, work stoppages, slowdowns, lockouts or arbitrations or grievances or other labor disputes pending or, to the knowledge of the ChoicePoint, threatened against or involving any of the Osborn Entities, (vii) there are no unfair labor practice charges, grievances or complaints pending or, to the knowledge of ChoicePoint, threatened against or involving any of the Osborn Entities or any group of employees of any of the Osborn Entities, (viii) there are no complaints, charges or claims against any of the Osborn Entities pending or, to the knowledge of ChoicePoint, threatened to be brought or filed with any Governmental Authority based on, arising out of, in connection with, or otherwise relating to the employment by any of the Osborn Entities of any individual, including any claim for workers' compensation, (ix) hours worked by and payments made to employees of the Osborn Entities have not been in violation of the federal Fair Labor Standards Act or any other Law dealing with such matters, and (x) there are no controversies pending or, to the knowledge of ChoicePoint, threatened, between any of the Osborn Entities and any of their employees. -23- 3.16 Insurance. (a) ChoicePoint has delivered to LabOne: (i) correct and complete summaries of all policies of insurance to which any Osborn Entity is a party or under which any Osborn Entity, or any director of any Osborn Entity, is or has been covered at any time within the two (2) years preceding the date hereof (the "Osborn Insurance Policies") and (ii) a correct and complete description of all claims made in respect of the Osborn Insurance Policies within such two (2) year period. (b) Except as set forth on Schedule 3.16(b), (i) each Osborn Entity has paid all premiums due and, to the knowledge of ChoicePoint, has otherwise performed all of its obligations under each Osborn Insurance Policy, (ii) all Osborn Insurance Policies are in full force and effect and (iii) no written notice of cancellation or termination has been received with respect to any of the Osborn Insurance Policies. 3.17 Intellectual Property. Schedule 3.17 sets forth a correct and complete list of: (a) all patents, technical documentation, trade secrets, trademarks, tradenames, service marks and copyrights (including all federal, state, and foreign registrations pertaining thereto) and all applications therefor that are owned by any Osborn Entity (collectively, the "Proprietary Intellectual Property"); and (b) all patents, technical documentation, trade secrets, trademarks, trade names, service marks, copyrights, software, technology, and processes (except for licenses of "off the shelf" software requiring payments less than $10,000 per year) that are used by any Osborn Entity pursuant to a license or other right granted by a third party (collectively, the "Licensed Intellectual Property", and together with the Proprietary Intellectual Property, the "Intellectual Property"). The Osborn Entities own, or have the right to use pursuant to valid and enforceable licenses and agreements identified on Schedule 3.17, all Intellectual Property and all software used in the Business. Except as set forth on Schedule 3.17, (i) each Osborn Entity has complied, in all material respects, with its contractual obligations relating to the protection of the Intellectual Property used by it pursuant to licenses or other contracts, (ii) the consummation of the transactions contemplated hereby will not alter or impair the right of any Osborn Entity to use any Intellectual Property, (iii) no claims have been asserted or, to the knowledge of ChoicePoint, threatened, with respect to the use by any Osborn Entity of any Intellectual Property or otherwise for patent, copyright or trademark infringement and (iv) to the knowledge of ChoicePoint, no Person is infringing on or violating the Intellectual Property rights or know-how used by the Osborn Entities. 3.18 Customers. (a) Schedule 3.18 sets forth accurate listings of the top twenty (20) customers of the Osborn Entities (i) based on the combined revenues of the Osborn Entities during the fiscal year ended December 31, 2000 and (ii) based on the combined revenues of the Osborn Entities during the six-month period ended June 30, 2001 (any such customer listed on Schedule 3.18, a "Material Customer"). (b) Except as set forth on Schedule 3.18, since January 1, 2000, none of the Osborn Entities has lost, and, to the knowledge of ChoicePoint, none of the ChoicePoint Entities or Osborn Entities has been notified that any of them will lose or suffer -24- diminution in, and no representative of a customer has notified any of the ChoicePoint Entities or Osborn Entities that, in the event of a sale of the Osborn Entities, any of the Osborn Entities would lose or suffer diminution in, a relationship with any Material Customer. Except as set forth on Schedule 3.18, none of the Osborn Entities is a party to or bound by any contract, agreement or arrangement containing any so-called "most favored nation" provisions or any similar provision requiring any Osborn Entity to offer a Material Customer terms or concessions at least as favorable as offered to one or more other parties. 3.19 Related Party Agreements and Transactions. Except as set forth on Schedule 3.19 and except as expressly contemplated by this Agreement and the Ancillary Agreements, there are no existing agreements or proposed transactions between (a) any of the Osborn Entities, on the one hand, and either ChoicePoint Entity or any Affiliate thereof, on the other hand or (b) to the knowledge of ChoicePoint, any Osborn Entity, on the one hand, and any officer, director or employee of any ChoicePoint Entity or Osborn Entity (such officers, directors and employees being hereinafter referred to as "Related Individuals") or any business in which a Related Individual has a direct or indirect ownership interest, on the other hand. 3.20 Completeness of Disclosure. No representation, warranty or statement by the ChoicePoint Entities in this Agreement contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact required to be stated herein or therein or necessary to make any statement herein or therein, in light of the circumstances in which they were made, not misleading. 3.21 Brokers, Finders, and Investment Bankers. Except as disclosed on Schedule 3.21, neither the Osborn Entities nor ChoicePoint has employed any broker, finder, investment banker, or other intermediary or incurred any liability for any investment banking fees, financial advisory fees, brokerage fees, finders' fees, or other similar fees in connection with the transactions contemplated by this Agreement. The fees and expenses of the investment banker listed on Schedule 3.21 shall be paid by ChoicePoint. SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PARENT. The Parent hereby represents and warrants to LabOne as follows: 4.1 Organization. The Parent is a corporation duly incorporated, validly existing, and in good standing under the Laws of the State of Georgia. The Parent has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as now being conducted. 4.2 Authorization. The Parent has the corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is party, and perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and each Ancillary Agreement to which it is a party and the performance by the Parent of its covenants and agreements hereunder and thereunder have been duly and validly authorized by the Board of Directors of the Parent, and no other corporate proceedings on the part of the Parent or its Affiliates are necessary to authorize the execution, delivery and performance of this Agreement, -25- each Ancillary Agreement to which it is a party or the consummation of the transactions so contemplated. Each of this Agreement and each Ancillary Agreement to which it is a party has been duly executed and delivered by the Parent and constitutes a valid and binding agreement of the Parent, enforceable against the Parent in accordance with its terms, except that (a) such enforcement may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other Laws, now or hereafter in effect, relating to or limiting creditors' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. 4.3 Absence of Restrictions and Conflicts. Except as set forth on Schedule 4.3, the execution, delivery, and performance of this Agreement and the Ancillary Agreements, the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, and the fulfillment of and compliance with the terms and conditions of this Agreement and the Ancillary Agreements do not and will not (as the case may be), with or without the passing of time or the giving of notice or both, violate or conflict with, constitute a breach of or default under, result in any penalty or payment becoming due under, result in the loss of any benefit under, or permit the acceleration or termination of any right or obligation under, (a) any term or provision of the charter documents or bylaws of the Parent, (b) any "Osborn Contract", "Retained Real Property Lease", or "Retained Personal Property Lease", (c) any Order of any Governmental Authority to which the Parent is party or by which the Parent or any of its respective properties or assets are bound, (d) any Law applicable to the Parent, or (e) any License. Except as set forth on Schedule 4.3 and except for applicable requirements of Canadian regulatory authorities set forth on Schedule 4.3, no consent, approval, Order, or authorization of, or registration, declaration, or filing with, or notice to, any Governmental Authority with respect to the Parent is required in connection with the execution, delivery, or performance of this Agreement and the Ancillary Agreements or the consummation of the transactions contemplated hereby and thereby. 4.4 Brokers, Finders, and Investment Bankers. Except as disclosed on Schedule 4.4, the Parent has not employed any broker, finder, investment banker, or other intermediary or incurred any liability for any investment banking fees, financial advisory fees, brokerage fees, finders' fees, or other similar fees in connection with the transactions contemplated by this Agreement. The fees and expenses of the investment banker listed on Schedule 4.4 shall be paid by ChoicePoint. SECTION 5. REPRESENTATIONS AND WARRANTIES OF LABONE. LabOne hereby represents and warrants to each of the ChoicePoint Entities as follows: 5.1 Organization. LabOne is a corporation duly incorporated, validly existing, and in good standing under the Laws of the State of Missouri. LabOne has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as now being conducted. -26- 5.2 Authorization. LabOne has the corporate power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is party and perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and the Ancillary Agreements to which it is party and the performance by LabOne of its covenants and agreements hereunder and thereunder have been duly and validly authorized by the Board of Directors of LabOne, and no other corporate proceedings on the part of LabOne or its Affiliates are necessary to authorize the execution, delivery and performance of this Agreement, the Ancillary Agreements or the consummation of the transactions so contemplated. Each of this Agreement and each of the Ancillary Agreements to which it is party has been duly executed and delivered by LabOne and constitutes a valid and binding agreement of LabOne, enforceable against LabOne in accordance with its terms, except that (a) such enforcement may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other Laws, now or hereafter in effect, relating to or limiting creditors' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. 5.3 Absence of Restrictions and Conflicts. Except as set forth on Schedule 5.3, the execution, delivery, and performance of this Agreement and the Ancillary Agreements to which LabOne is party, the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and the fulfillment of and compliance with the terms and conditions of this Agreement and the Ancillary Agreements do not or will not (as the case may be), with or without the passing of time or the giving of notice or both, violate or conflict with, or constitute a breach of or default under, (a) any term or provision of the articles of incorporation or bylaws of LabOne, (b) any Order to which LabOne is a party or by which LabOne or any of its properties is bound or (c) any Law applicable to LabOne or the business engaged in by LabOne. Except as set forth on Schedule 5.3 and except for applicable requirements of Canadian regulatory authorities set forth on Schedule 5.3, no consent, approval, Order or authorization of, or registration, declaration, or filing with, or notice to, any Governmental Authority with respect to LabOne is required in connection with the execution, delivery, or performance of this Agreement or the Ancillary Agreements to which LabOne is party by LabOne or the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements to which LabOne is party by LabOne. 5.4 Brokers, Finders, and Investment Bankers. Except as set forth on Schedule 5.4, LabOne has not employed any broker, finder, investment banker, or other intermediary or incurred any liability for any investment banking fees, financial advisory fees, brokerage fees, finders' fees, or other similar fees in connection with the transactions contemplated by this Agreement. The fees and expenses of the financial advisor listed on Schedule 5.4 shall be paid by LabOne. 5.5 Purchase for Investment. (a) LabOne is acquiring the Osborn Shares solely for investment for its own account and not with the view to, or for resale in connection with, any "distribution" (as such term is used in Section 2(11) of the Securities Act of 1933, as amended (the "Securities Act")) thereof. LabOne understands that the Osborn Shares have not been -27- registered under the Securities Act or any state or foreign securities Laws by reason of specified exemptions therefrom that depend upon, among other things, the bona fide nature of its investment intent as expressed herein and as explicitly acknowledged hereby and that under such Laws such securities may not be resold without registration under the Securities Act or under applicable state or foreign Law unless an applicable exemption from registration is available. (b) LabOne is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. LabOne, by reason of its business and financial experience in business, has such knowledge, sophistication and experience in business and financial matters as to be capable of evaluating the merits and risks of the purchase of the Osborn Shares, is able to bear the economic risk of such investment in Osborn, and is able to afford a complete loss of such investment. 5.6 Litigation. There is no claim, action, suit, proceeding or governmental investigation pending or, to the knowledge of LabOne, threatened against LabOne, by or before any Governmental Authority or by any third party which challenges the validity of this Agreement or which would be reasonably likely to adversely affect or restrict LabOne's ability to consummate the transactions contemplated hereby. SECTION 6. ADDITIONAL COVENANTS AND AGREEMENTS. Each of the parties hereto shall comply with the following covenants and agreements to the extent applicable to such party (unless compliance is waived in advance in accordance with this Agreement): 6.1 Access to Information. (a) All information concerning the ChoicePoint Entities or any Osborn Entity furnished or provided by the ChoicePoint Entities, the Osborn Entities or their representatives to LabOne or its representatives (whether furnished before or after the date hereof) shall be held subject to the confidentiality agreement by and between the Parent and LabOne, dated as of January 25, 2001 (the "Confidentiality Agreement"). (b) LabOne agrees that it will maintain in a location reasonably convenient to the ChoicePoint Entities for at least seven (7) years after the date hereof (the "Tax/Accounting Retention Period"), the tax and accounting books, records, and documents (the "Tax/Accounting Records") of the Osborn Entities existing as of the date hereof. Notwithstanding the foregoing, in lieu of retaining any specific Tax/Accounting Records, LabOne may offer in writing to deliver such Tax/Accounting Records to the ChoicePoint Entities and, if such offer is not accepted within ninety (90) days, the offered Tax/Accounting Records may be destroyed or otherwise disposed of at any time. If the ChoicePoint Entities shall request in writing prior to the expiration of such 90-day period that any of Tax/Accounting Records proposed to be destroyed or disposed of be delivered to the ChoicePoint Entities, LabOne shall promptly arrange for delivery of such requested Tax/Accounting Records (at the ChoicePoint Entities' cost). Upon execution by ChoicePoint of a confidentiality agreement reasonably satisfactory to LabOne and -28- ChoicePoint, LabOne shall afford the ChoicePoint Entities and their respective accountants, counsel, and representatives full access, for reasonable purposes, during normal business hours to Tax/Accounting Records at all times during the Tax/Accounting Retention Period. (c) LabOne agrees that it will maintain in a location reasonably convenient to the ChoicePoint Entities at least for the longer of (i) two (2) years after the date hereof or (ii) the period of time required by law (the "Non-Tax/Accounting Retention Period"), the books, records, and documents other than the tax and accounting books, records, and documents (the "Non-Tax/Accounting Records") of the Osborn Entities existing as of the date hereof. Notwithstanding the foregoing, in lieu of retaining any specific Non-Tax/Accounting Records, LabOne may offer in writing to deliver such Non-Tax/Accounting Records to the ChoicePoint Entities and, if such offer is not accepted within ninety (90) days, the offered Non-Tax/Accounting Records may be destroyed or otherwise disposed of at any time. If the ChoicePoint Entities shall request in writing prior to the expiration of such 90-day period that any of Non-Tax/Accounting Records proposed to be destroyed or disposed of be delivered to the ChoicePoint Entities, LabOne shall promptly arrange for delivery of such requested Non-Tax/Accounting Records (at the ChoicePoint Entities' cost). Upon execution by ChoicePoint of a confidentiality agreement reasonably satisfactory to LabOne and ChoicePoint, LabOne shall afford the ChoicePoint Entities and their respective accountants, counsel, and representatives full access, for reasonable purposes, during normal business hours to such books, records, and documents at all times during the Non-Tax/Accounting Retention Period. 6.2 Consents. With respect to any agreements for which any required consent or approval is not obtained prior to the date hereof, the ChoicePoint Entities and LabOne shall each use their reasonable best efforts to obtain any such consent or approval after the date hereof until such consent or approval has been obtained. 6.3 Fees and Expenses. The ChoicePoint Entities will be jointly and severally obligated to pay all costs and expenses incurred by the Osborn Entities or the ChoicePoint Entities in connection with the negotiation, preparation, execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, including, without limitation, attorneys', accountants', brokers', finders', and investment banking fees and expenses (collectively, "Expenses"). LabOne shall bear all such Expenses incurred by LabOne. 6.4 Public Announcements. Upon execution of this Agreement, no party shall make, or allow any Affiliate, agent or representative thereof to make, any public announcements regarding this Agreement or the Ancillary Agreements or the transactions contemplated hereby or thereby, including, without limitation, any announcement to the financial community or to any Governmental Authorities, employees, customers, suppliers or the general public, without the prior written approval of the other party as to the content, timing and manner of presentation or publication thereof; provided, however, that each party may issue the press release agreed upon prior to the execution of this Agreement and each party may make such other announcements and such other disclosures as such party shall determine are required to be made by applicable Law (including, without limitation, by the applicable rules of the New York Stock Exchange or -29- the Nasdaq Stock Market). In the event that any party hereto believes in good faith that any such disclosure is required by applicable Law, such party shall nonetheless use its good faith efforts to consult (as to the content, timing and manner of presentation or publication thereof) with the other party a reasonable period of time prior to making such disclosure. 6.5 Employees; Employee Benefits. (a) Except as provided below, nothing contained herein shall require LabOne to assume any Company Benefit Plans or accept the transfer of any assets or liabilities arising out of or associated with any Company Benefit Plans. All liabilities and obligations for retiree medical and life benefits payable on or after the date hereof to current retirees of the Osborn Entities, as determined on the date hereof, shall be paid by ChoicePoint. (b) As of the date hereof, LabOne or an Affiliate thereof shall continue the employment of the Employees listed on Schedule 6.5(b)(i) (each such Employee who continues such employment being referred to individually herein as a "Transferred Employee" and all such Employees who continue such employment being referred to collectively herein as the "Transferred Employees"); provided, however, nothing contained herein shall be deemed to create an employment contract between LabOne and any Transferred Employee. Effective on the date hereof, pursuant to an employee secondment agreement mutually acceptable to the parties (the "Employee Secondment Agreement"), LabOne shall lease from CHS, for the transition period or periods contemplated by the Employee Secondment Agreement, the Employees listed on Schedule 6.5(b)(ii) (the "Osborn Contract Employees"), and all Osborn Contract Employees shall become employees of CHS and shall remain eligible to participate in the Company Benefit Plans for the duration of the transition period. (c) ChoicePoint shall be solely responsible for terminating the Employees who are neither Transferred Employees nor Osborn Contract Employees ("Unaffected Employees"). ChoicePoint shall be solely responsible and assume liability for the termination of the Osborn Contract Employees and for all notices or payments due to any Unaffected Employees or Osborn Contract Employees prior to or subsequent to the date hereof, and all notices, payments, fines or assessments due to any Governmental Authority, pursuant to any applicable Law with respect to the employment, discharge, constructive discharge or layoff due to any Unaffected Employees or Osborn Contract Employees before or after the date hereof, including but not limited to the Workers Adjustment and Retraining Act (the "WARN Act") and the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and any rules or regulations that have been issued in connection with the foregoing. (d) For the period beginning on the date hereof and ending no earlier than December 31, 2001, LabOne shall, or shall cause the Osborn Entities to, provide each Transferred Employee and each Osborn Contract Employee who, subsequent to the transition period contemplated by the Employee Secondment Agreement, accepts an offer of employment with LabOne (collectively, the "Hired Employees") with compensation and benefits that are substantially comparable in the aggregate to the compensation and -30- benefits provided to similarly situated LabOne employees. LabOne shall treat all service completed by a Hired Employee with any of the Osborn Entities or any Affiliate thereof, and any predecessor thereto, the same as service completed with LabOne for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by LabOne on or after the date hereof in which a Hired Employee participates, except for purposes of computing benefits under the accrued benefit formula in a pension plan (as defined in Section 3(2) of ERISA). Prior to the date hereof, ChoicePoint has furnished LabOne with a list of the length of service with the Osborn Entities or its Affiliates for each of the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(l) of ERISA), expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of any of the Osborn Entities or any Affiliate shall be credited or recognized under the comparable plan maintained after the date hereof by LabOne. (e) After the date hereof, LabOne shall be responsible for, and shall indemnify and hold harmless ChoicePoint and its Affiliates and their officers, directors, employees, Affiliates and agents and the fiduciaries (including plan administrators) of the Company Benefit Plans, from and against, any and all claims, losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses) and other liabilities and obligations, with respect to the Transferred Employees, relating to or arising out of all salaries, bonuses, commissions, vacation entitlements and other benefits accrued and included on the Final Working Capital Statement by any of the Osborn Entities but unpaid as of the date hereof. (f) After the Closing Date, ChoicePoint agrees to use its best efforts to facilitate as soon as reasonably practicable, in accord with applicable Law, any request made by any Hired Employee for a rollover of an account balance from the ChoicePoint Inc. 401(k) Profit Sharing Plan to the LabOne 401(k) Plan (the "LabOne 401(k) Plan"). LabOne agrees to accept such rollovers into the LabOne 401(k) Plan upon the receipt of satisfactory documentation from ChoicePoint. (g) ChoicePoint agrees to assign to LabOne all rights associated with and pertaining to all nondisclosure, confidentiality, invention assignment and noncompetition agreements between any of the Employees and ChoicePoint or any of its Affiliates. 6.6 Use of ChoicePoint Corporate Name and Trademarks. As soon as reasonably practicable after the date hereof, but in any event within sixty (60) days after the date hereof, LabOne will, at its own expense, remove any and all exterior signs and other identifiers located on any of its property or premises that refer or pertain to the ChoicePoint Entities or that include the ChoicePoint Entities' name and logo or other trademark or intellectual property. Additionally, as soon as reasonably practicable after the date hereof, but in any event within sixty (60) days after the date hereof, LabOne will remove from all letterhead, envelopes, -31- invoices, and other communications media of any kind, all references to the ChoicePoint Entities, including the ChoicePoint Entities' name and logo or other trademark or intellectual property. 6.7 Transition Services Agreement. Contemporaneously with the execution of this Agreement, ChoicePoint and LabOne are entering into a transition services agreement mutually acceptable to the parties (the "Transition Services Agreement") concerning certain services to be provided by ChoicePoint to LabOne. 6.8 Investigation by LabOne. LabOne has conducted its own independent review and analysis of the business, operations, technology, assets, liabilities, results of operations, financial condition and prospects of the Osborn Entities and acknowledges that the ChoicePoint Entities have provided LabOne with access to the personnel, properties, premises and records of the Osborn Entities for this purpose. In entering into this Agreement, LabOne has relied upon its own investigation and analysis, and LabOne (a) acknowledges that, except as otherwise specifically provided in this Agreement, neither the ChoicePoint Entities, the Osborn Entities nor any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to LabOne or its directors, officers, employees, Affiliates, controlling Persons, agents or representatives, and (b) agrees, to the fullest extent permitted by Law, that neither ChoicePoint, the Osborn Entities nor any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives shall have any liability or responsibility whatsoever to LabOne or its directors, officers, employees, Affiliates, controlling Persons, agents or representatives on any basis (including, without limitation, in contract or tort, under federal or state securities Laws or otherwise) based upon any information provided or made available, or statements made, to LabOne or its directors, officers, employees, Affiliates, controlling Persons, agents or representatives (or any omissions therefrom), except as and only to the extent expressly set forth herein with respect to the representations and warranties of the ChoicePoint Entities in Section 3 and Section 4 of this Agreement and subject to the limitations and restrictions contained herein. 6.9 Audit of Osborn Year-End Financial Statements. On or before the date hereof, the ChoicePoint Entities have caused their independent auditors (the "ChoicePoint Auditors") to commence an audit of the unaudited consolidated balance sheets and related unaudited statements of operations, cash flows and stockholders' equity (deficit) of the Osborn Entities as of and for the fiscal years ended December 31, 1998, 1999 and 2000 (the "Osborn Year-End Financial Statements") (such audit, together with the preparation and audit of any Required Pro Forma Financials (as hereinafter defined), the "Audit"). From and after the date hereof, the ChoicePoint Entities shall use their commercially reasonable efforts to, and shall use their commercially reasonable efforts to cause the ChoicePoint Auditors to, at the option of LabOne either (x) complete the Audit or (y) assist with and facilitate the completion of the Audit, in either case, on or prior to the sixtieth (60th) day following the date hereof. If requested by LabOne, the ChoicePoint Entities shall (A) if the Audit is completed by the ChoicePoint Auditors, use their commercially reasonable efforts to cause such auditors to deliver such representations, reports and consents as are requested by LabOne in order to comply with the rules and regulations of the Securities and Exchange Commission (the "SEC") and other Laws applicable to LabOne and (B) if any pro forma financial statements are required by such SEC -32- rules and regulations or other Laws ("Required Pro Forma Financials"), use their commercially reasonable efforts to, and use their commercially reasonable efforts to cause the ChoicePoint Auditors to, assist with and facilitate the completion and audit of such Required Pro Forma Financials prior to the sixtieth (60th day) following the date hereof. Additionally, the ChoicePoint Entities shall from time to time hereafter, at LabOne's reasonable request, cooperate with LabOne in connection with the Audit. LabOne shall pay the fees and expenses of the ChoicePoint Auditors in connection with the Audit and any other services provided pursuant to this Section 6.9. 6.10 Insurance Matters. All Surety Bonds and Osborn Insurance Policies shall be terminated as of the date hereof. SECTION 7. RESTRICTIVE COVENANTS. 7.1 Definitions. For the purposes of this section: (a) "Osborn Activities" means insurance laboratory testing services, management of ordering and receipt of life and health insurance underwriting and claim information requirements and status reports, and teleunderwriting services, but excluding the Permitted Activities (as hereinafter defined); (b) "Noncompetition Period" or "Nonsolicitation Period" means the period beginning on the date hereof and ending on the fifth (5th) anniversary of the date hereof; (c) "Permitted Activities" means (i) the following underwriting and claims information services activities provided by the Parent or its Affiliates to insurance companies to assist those companies in assessing the insurability and associated policy pricing of individuals and property: the furnishing of access to motor vehicle reports, the maintenance of a database of claims histories, the provision of automated claims verification information services to both the property and casualty and the life and health insurance markets, and the provision of database marketing services, including pre-screened and direct marketing lists; (ii) those activities provided by the Parent or its Affiliates related to pre-employment background investigations, pre-employment and regulatory compliance drug testing services (but not drug testing), shareholder locator searches, credential verification services, and due diligence and public record information searches; (iii) those activities provided by the Parent or its Affiliates related to modeling services, customized policy rating and issuance software, property inspections and audits to the commercial insurance market, and technology solutions to the life insurance market other than the management of ordering and receipt of life and health insurance underwriting and claim information requirements and status reports; -33- (iv) those activities provided by the Parent or its Affiliates related to forensics and human identification, paternity testing, population genetics, and advanced research (including, but not limited to, validation studies, genetic sequencing and database construction, genetic diversity studies, species origin analysis, and mitochondrial typing); (v) those activities provided by the Parent or its Affiliates related to (A) the Appraise Product and (B) the intellectual property set forth on Schedule 2.2(a)(ii); and (vi) those activities contemplated in the Transition Services Agreement. (d) "Territory" means the United States of America and Canada, such area being where customers and actively sought prospective customers of the Osborn Entities are located. 7.2 Noncompetition. (a) Acknowledgment. The ChoicePoint Entities acknowledges that the Osborn Entities conduct the Osborn Activities throughout the Territory and that, to protect adequately the interest of LabOne in the Business and goodwill of the Osborn Entities, it is essential that any noncompetition covenant with respect thereto cover all Osborn Activities and the entire Territory for the duration of the Noncompetition Period. (b) Trade Name. The ChoicePoint Entities hereby agree that, during the Noncompetition Period, neither of the ChoicePoint Entities nor any of their Affiliates will, directly or indirectly, own, manage, operate, join, control, or participate in the ownership, management, operation, or control of any business conducted under any corporate, product, or trade name or trademark of, the Osborn Entities, or name or mark similar thereto, without the prior written consent of LabOne. (c) Noncompetition Covenant. The ChoicePoint Entities hereby agree that neither of the ChoicePoint Entities nor any of their Affiliates will, during the Noncompetition Period, directly or indirectly, conduct Osborn Activities in the Territory or otherwise engage in, have an equity or profit interest in, or render services (of an executive, marketing, manufacturing, research and development, administrative, financial, or consulting nature) to any business that conducts any of Osborn Activities in the Territory. Notwithstanding anything in this Agreement to the contrary, each of the ChoicePoint Entities and their Affiliates may acquire up to two percent (2%) of any company whose common stock is publicly traded on a national securities exchange or in the over-the-counter market and may conduct the Permitted Activities. The ChoicePoint Entities and LabOne acknowledge that, in the course of acquiring business entities or assets ("Acquired Entities"), the ChoicePoint Entities may wish to acquire an Acquired Entity or Acquired Entities that engage in the Osborn Activities as part of its business activities. The ChoicePoint Entities and LabOne acknowledge that nothing in this Agreement shall prevent the ChoicePoint Entities or their Affiliates from acquiring (and, -34- thereafter, owning and operating) an Acquired Entity or Acquired Entities during the Noncompetition Period that engage in the Osborn Activities, provided that the trailing twelve-month revenues derived from the Osborn Activities by the Acquired Entity or Acquired Entities, in the aggregate, do not exceed $30,000,000; provided, however, that, if, subsequent to the purchase of such Acquired Entity or Acquired Entities, the ChoicePoint Entities or their Affiliates receive and wish to accept a bona fide offer to dispose of the portion of the business of the Acquired Entity or Acquired Entities engaged in the Osborn Activities, the ChoicePoint Entities or their Affiliates, as the case may be, shall offer to sell to LabOne the portion of the business of the Acquired Entity or Acquired Entities engaged in the Osborn Activities at the price and under the terms offered by such bona fide offeror. (d) Nonsolicitation. The ChoicePoint Entities hereby agree that they will not, during the Nonsolicitation Period, directly or indirectly: (i) solicit or attempt to solicit, any business from any of the Osborn Entities' customers existing as of the date hereof or during the one-year period prior to the date hereof, for purposes of providing products or services that are competitive with those provided by the Osborn Entities in their conduct of the Osborn Activities; or (ii) hire, recruit, or solicit or attempt to hire, recruit, or solicit, on behalf of any ChoicePoint Entity or Affiliate thereof or on behalf of any other Person, firm, or corporation, any employee or independent contractor of any Osborn Entity, other than (A) those individuals listed on Schedule 7.2(d)(ii), (B) any individual who is not hired by LabOne or the Osborn Entities following the termination of the Employee Secondment Agreement, and (C) any individual who is hired by LabOne or the Osborn Entities but whose employment is thereafter terminated by LabOne or the Osborn Entities; provided, however, any individual covered by Section 7.2(d)(ii)(C) shall remain subject to any non-compete and confidentiality agreements with LabOne. 7.3 Severability. If a judicial or arbitral determination is made that any of the provisions of this Agreement constitutes an unreasonable or otherwise unenforceable restriction against the ChoicePoint Entities, the provisions of this Agreement shall be rendered void only to the extent that such judicial or arbitral determination finds such provisions to be unreasonable or otherwise unenforceable with respect to the ChoicePoint Entities. In this regard, the ChoicePoint Entities hereby agree that any Governmental Authority construing this Agreement shall be empowered to sever any portion of the Territory, any prohibited business activity or any time period from the coverage of this Agreement, and to apply the provisions of this Agreement to the remaining portion of the Territory, the remaining business activities, and the remaining time period not so severed by such judicial or arbitral authority. SECTION 8. CONTEMPORANEOUS ACTIONS. Contemporaneously with the execution of this Agreement, the following actions have been taken: -35- 8.1 LabOne Documents. LabOne has delivered, or caused to be delivered, to ChoicePoint the following: (a) the Purchase Price; (b) an opinion mutually acceptable to the parties of Reboul, MacMurray, Hewitt, Maynard & Kristol, special counsel to LabOne, and an opinion mutually acceptable to the parties of Morrison & Hecker, Missouri counsel to LabOne; (c) a mutual release mutually acceptable to the parties executed by LabOne (the "Release"); (d) the Transition Services Agreement executed by LabOne; (e) a lease agreement mutually acceptable to the parties executed by LabOne (the "Lease Agreement"); (f) a sublease agreement mutually acceptable to the parties executed by LabOne (the "Kit Factory Sublease Agreement"); (g) the Employee Secondment Agreement executed by LabOne; (h) a software license agreement mutually acceptable to the parties executed by LabOne or one of its Affiliates (the "Software License Agreement"); (i) a trademark license agreement mutually acceptable to the parties executed by LabOne or one of its Affiliates (the "Trademark License Agreement"); (j) a technology license agreement mutually acceptable to the parties executed by LabOne or one of its Affiliates (the "Technology License Agreement"); (k) a motor vehicle record reseller agreement mutually acceptable to the parties executed by LabOne or one of its Affiliates (the "MVR Agreement"); (l) the Osborn Canada Stock Purchase Agreement executed by LabOne Canada, Inc.; and (m) such other documents executed by LabOne and/or one or more of its Affiliates as shall be mutually agreed upon by the parties. 8.2 Transfers Complete. The transfers contemplated by Section 2 of this Agreement have been completed pursuant to a contribution and distribution agreement and the other documents of transfer of title mutually acceptable to the parties. 8.3 Third-Party Consents and Notices. All contractual and other third party consents and notices required to be obtained or made prior to the date hereof by any of the ChoicePoint Entities or any of the Osborn Entities in connection with the execution and delivery of this Agreement or any Ancillary Agreement and/or the consummation of the transactions -36- contemplated hereby and thereby that are listed on Schedule 8.3 have been obtained and copies thereof have been delivered to LabOne. 8.4 ChoicePoint Documents. ChoicePoint has delivered, or caused to be delivered, to LabOne the following: (a) the stock certificates representing the Osborn Shares and accompanying stock powers evidencing the transfer of the Osborn Shares to LabOne; (b) the stock certificates representing the outstanding shares of capital stock of the Osborn Subsidiaries; (c) the organizational record books, minute books, stock books and corporate seals of the Osborn Entities; (d) a list of personal property owned by any Osborn Entity which is not being transferred to ChoicePoint pursuant to Section 2.2 of this Agreement; (e) an opinion mutually acceptable to the parties of King & Spalding, counsel to ChoicePoint; (f) the Release executed by each of the Choice Point Entities on behalf of the ChoicePoint Entities and their Affiliates (other than the Osborn Entities); (g) written resignations of each of the officers and directors of the Osborn Entities (other than those identified in writing by LabOne to ChoicePoint prior to the date hereof); (h) the Transition Services Agreement executed by ChoicePoint; (i) the Lease Agreement executed by ChoicePoint; (j) the Kit Factory Sublease Agreement executed by ChoicePoint; (k) the Employee Secondment Agreement executed by CHS; (l) the Software License Agreement executed by ChoicePoint or one of its Affiliates; (m) the Trademark License Agreement executed by ChoicePoint or one of its Affiliates; (n) the Technology License Agreement executed by ChoicePoint or one of its Affiliates; (o) the MVR Agreement executed by ChoicePoint or one of its Affiliates; (p) the Osborn Canada Stock Purchase Agreement executed by Osborn; and -37- (q) such other documents executed by ChoicePoint and/or one or more of its Affiliates as shall be mutually agreed upon by the parties. SECTION 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.; INDEMNIFICATION. 9.1 Survival of Representations, Warranties, Covenants and Agreements; Right to Indemnification not Affected by Knowledge. The representations, warranties, covenants and agreements made by the parties in this Agreement and in the Ancillary Agreements shall survive the date hereof for the Claims Period (as hereinafter defined) applicable thereto. The right of any party to seek indemnification under this Section 9 or any other remedy based on the representations, warranties, covenants and agreements contained in this Agreement or in any Ancillary Agreement will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant or agreement. 9.2 Indemnification Obligations of the ChoicePoint Entities. The ChoicePoint Entities shall, jointly and severally, indemnify, defend, and hold harmless LabOne and its officers, directors, employees, and Affiliates (including, after the date hereof, the Osborn Entities), and each of the heirs, executors, successors, and assigns of any of the foregoing (collectively, the "LabOne Indemnified Parties") from, against, and in respect of any and all Losses (as hereinafter defined) arising out of or relating to: (a) any breach or inaccuracy of any representation or warranty made by ChoicePoint in Section 3 hereof (but excluding any Losses relating to any breach or inaccuracy of the representations and warranties contained in Section 3.12 to the extent such Losses are reduced as a result of payments made under Section 10.7) or by the Parent in Section 4 hereof; (b) any breach of any covenant, agreement, or undertaking made by the ChoicePoint Entities in this Agreement or any Ancillary Agreement; (c) any liabilities of the Osborn Entities relating to the Owned Real Property, the ChoicePoint Personal Property, the ChoicePoint Personal Property Leases, and the distributions to the Parent and its Affiliates contemplated by Section 2 hereof; (d) any (i) indebtedness for borrowed money of any Osborn Entity existing as of the date hereof; (ii) liabilities or obligations of any Osborn Entity in respect of guaranties entered into or letters of credit issued prior to the date hereof; (iii) the deferred purchase price of assets or services purchased prior to the date hereof which, in accordance with GAAP, should be shown on the liability side of a consolidated balance sheet of the Osborn Entities; (iv) any obligation of any Osborn Entity to pay a specified purchase price for goods or services whether or not delivered or accepted pursuant to any agreement entered into prior to the date hereof; or (v) liabilities or obligations of any Osborn Entity, as lessee, under any lease of property (whether real, personal or mixed) entered into prior to the date hereof which, in accordance with GAAP, should be shown as a capital lease on a consolidated balance sheet of the Osborn Entities; -38- (e) any claim, action, proceeding or investigation brought against any of the Osborn Entities prior to or after the date hereof based upon any event or omission occurring in respect of the assets, properties, activities or operations of the Osborn Entities prior to the date hereof; (f) any liability for or obligation to pay severance to any Unaffected Employee or Osborn Contract Employee; and (g) (i) all salaries, bonuses, commissions, vacation entitlements and other benefits or compensation earned or accrued prior to or after the Statement Date by any Unaffected Employee or any Osborn Contract Employee, (ii) all salaries, bonuses, commissions, vacation entitlements and other benefits or compensation earned or accrued prior to the Statement Date by any Transferred Employee, (iii) any liabilities or obligations in respect of any Company Benefit Plan, (iv) any claims of, or damages or penalties sought by, any Unaffected Employee or any Osborn Contract Employee with respect to any act or failure to act by any ChoicePoint Entity to the extent arising from the employment, discharge, layoff or termination of any such employee, (v) any liabilities under COBRA or the WARN Act as a result of the termination of any Unaffected Employee or Osborn Contract Employee and (vi) all liabilities and obligations for retiree medical and life benefits payable on and after the date hereof to current retirees of the Osborn Entities, as determined on the date hereof. For purposes of this Section 9, "Loss" or "Losses" shall mean any and all claims, liabilities, obligations, losses (including any diminution in the value of the Osborn Shares and the Osborn Canada Shares), costs, expenses, penalties, fines, judgments, and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation, and reasonable attorneys' and accountants' fees and expenses) incurred by an Indemnified Party; provided, however, that an Indemnified Party shall not be entitled to indemnification hereunder to the extent an accrual of liability or a specific reserve for such matter is included in the Final Working Capital Statement. 9.3 Indemnification Obligations of LabOne. LabOne shall indemnify and hold harmless each of the ChoicePoint Entities and their respective officers, directors, employees, and Affiliates, and each of the heirs, executors, successors, and assigns of any of the foregoing (collectively, the "ChoicePoint Indemnified Parties") from, against, and in respect of any and all Losses arising out of or relating to: (a) any breach or inaccuracy of any representation or warranty made by LabOne in Section 5; and (b) any breach of any covenant, agreement, or undertaking made by LabOne in this Agreement or any Ancillary Agreement. 9.4 Indemnification Procedure. (a) Promptly after receipt by a LabOne Indemnified Party or a ChoicePoint Indemnified Party (hereinafter referred to as, the "Indemnified Party") of notice by a third party of any claim or the commencement of any action or proceeding with respect to -39- which such Indemnified Party may be entitled to receive payment from the other party for any Losses (ignoring, for this purpose, the Threshold Amount (as hereinafter defined)), such Indemnified Party shall, within ten (10) days, notify LabOne or ChoicePoint, as the appropriate indemnifying party or representative thereof (the "Indemnifying Party"), of such third-party claim or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such third-party claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such third-party claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of any rights or defenses otherwise available to the Indemnifying Party with respect to such third-party claim. Unless the Indemnifying Party is also a party to such third-party claim and the Indemnified Party determines in good faith after conferring with its outside counsel that joint representation would be inappropriate, the Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within twenty (20) days thereafter (or, if earlier, by the tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the Person asserting such claim), to assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 20-day period (or earlier 10-day period, if applicable), then such Indemnified Party may employ counsel to represent or defend it in any such action or proceeding for the account and risk of the Indemnifying Party, and the Indemnifying Party shall pay the fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which it is maintaining, and to cooperate in good faith with the other with respect to the defense of any such action. Anything in this Section 9.4 to the contrary notwithstanding, the Indemnifying Party shall not be entitled to assume the defense of any third-party claim (and shall pay the fees and expenses of counsel incurred by the Indemnified Party in defending such third-party claim as incurred) if the third-party claim seeks an injunction or other equitable relief or any other relief other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. (b) If an Indemnifying Party assumes the defense of any third-party claim pursuant to paragraph (a) above, the Indemnifying Party may not, without the prior -40- written consent of the Indemnified Party, settle or compromise such third claim or consent to the entry of any judgment in respect thereof unless (A) the sole relief provided to such third party is the payment of monetary damages which the Indemnifying Party pays or causes to be paid concurrently with the effectiveness thereof; (B) there is no finding or admission of any violation of Law or any violation of the rights of any Person and, in the good faith judgment of the Indemnified Party, no effect on any other claims that may be made against the Indemnified Party; and (C) the Indemnifying Party shall obtain, as a condition of such settlement, a complete unconditional release of the Indemnified Party. The Indemnified Party will have no liability with respect to any compromise or settlement of any third-party claim that is effected in violation of clause (ii) of the preceding sentence. (c) In the event any Indemnified Party should have a claim against any Indemnifying Party that does not involve a third-party claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim (together with a reasonably detailed description of the facts giving rise thereto, the provision of this Section 9 under which indemnification is being sought and the amount (or estimated amount) of Losses relating thereto) with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party except to the extent that the Indemnifying Party demonstrates that it has been materially prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party within twenty (20) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party shall promptly pay any amount of such claim that is not disputed and the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved in accordance with Section 11.12. 9.5 Claims Period. For purposes of this Agreement, a "Claims Period" shall be the period during which a claim for indemnification may be asserted under this Agreement by an Indemnified Party, which period shall (a) begin on the date hereof and (b) terminate as follows: (i) with respect to any Losses covered by Sections 9.2(a) or 9.3(a) hereof, the Claims Period shall terminate on the date that is eighteen (18) months from the date hereof; provided, however, the Claims Period shall (A) continue until the expiration of any applicable statute of limitations (giving effect to any extensions thereof) with respect to any Losses resulting from any breach or inaccuracy of any representation or warranty contained in Section 3.12 or Section 3.14 hereof; and (B) the Claims Period shall continue indefinitely with respect to any Losses resulting from any breach or inaccuracy of any representation or -41- warranty contained in Section 3.1, 3.2, 3.4, 4.1, 4.2, 5.1 or 5.2 hereof; and (ii) with respect to any Losses covered by Sections 9.2(b), 9.2(c), 9.2(d), 9.2(e), 9.2(f), 9.2(g) or 9.3(b) hereof, the Claims Period shall continue until expiration of the applicable statute of limitations (after giving effect to any extensions thereof). Notwithstanding the foregoing, if prior to the close of business on the last day of the applicable Claims Period, an Indemnifying Party shall have been properly notified of a claim for indemnity hereunder and such claim shall not have been finally resolved or disposed of at such date, such claim shall continue to survive and shall remain a basis for indemnity hereunder until such claim is finally resolved or disposed of in accordance with the terms hereof. 9.6 Threshold Amount; Limitation Amount. Notwithstanding anything to the contrary set forth herein, the ChoicePoint Entities shall be liable for Losses arising under Section 9.2(a) only to the extent that any such Losses exceed, in the aggregate, $500,000 (the "Threshold Amount"), and such liability shall be only for amounts which, in the aggregate, are in excess of the Threshold Amount, and in no event shall the aggregate liability of the ChoicePoint Entities under Section 9.2(a) exceed $9,750,000 (the "Limitation Amount"). Notwithstanding the foregoing, Losses arising under or pursuant to any matter constituting fraud or criminal activity under applicable Law by either of the ChoicePoint Entities or, prior to the date hereof, any Osborn Entity shall not be subject to the Threshold Amount or the Limitation Amount. 9.7 Limitations on Indemnification. Notwithstanding anything contained herein to the contrary: (a) The amount of Losses to which an Indemnified Party may be entitled to be indemnified against and reimbursed for under this Section 9 shall be (i) reduced by any indemnity or other recovery under any contract between an Indemnified Party and any third party and (ii) reduced by any insurance proceeds received by an Indemnified Party with respect to such Losses, (iii) reduced by any Tax benefits derived by an Indemnified Party as a result of such Losses; and (iv) increased by any Tax detriment suffered by an Indemnified Party as a result of its receipt of, or entitlement to, any indemnification payments including any increase in such payments pursuant to clause (iii). The parties shall cooperate with each other with respect to making claims under any contracts between an Indemnified Party and any third parties which agreements provide indemnification or similar rights for the benefit of the Indemnified Party. Such cooperation shall include making all reasonable claims and demands against any such third parties and pursuing such claims and demands in a commercially reasonable and timely manner. (b) If the Indemnifying Party makes any payment under this Section 9 with respect to any Losses, the Indemnifying Party shall be subrogated, to the extent of such payment, to the rights of the Indemnified Party against any insurer or other party with respect to such Losses, and the Indemnified Party shall assign to the Indemnifying Party any and all rights with respect to which and to the extent to which indemnification shall have been sought or made under this Agreement, and the Indemnified Party shall not take -42- any action which directly or indirectly would affect such claims that the Indemnifying Party may have with respect thereto and shall cooperate in a timely and commercially reasonable manner with the Indemnifying Party in pursuing such claims. (c) Attorney, consultant, and other professional fees and disbursements incurred by an Indemnified Party in connection with this Section 9 shall be reasonable and based only on time actually spent which shall be charged at no more than such professional's standard hourly rate. 9.8 Exclusive Remedy. Except as provided in Section 10 and Section 1.4, except to the extent a party may be entitled to the remedy of specific performance, and except for a breach of any representation, warranty, or covenant as a result of any matter constituting fraud or criminal activity under applicable Law, the indemnification provisions of this Section 9 shall be the exclusive remedy of the parties hereto against any other party under this Agreement or otherwise with respect to Losses. SECTION 10. TAX MATTERS. 10.1 Preparation and Filing of Tax Returns. ChoicePoint will prepare and timely file or will cause to be prepared and timely filed all appropriate Federal, state, provincial, local and foreign Tax Returns in respect of the Osborn Entities and their assets or activities that (a) are required to be filed on or before the date hereof or (b) are required to be filed after the date hereof and (i) are Consolidated Tax Returns or (ii) are with respect to Income Taxes and are required to be filed on a separate Tax Return basis for any Tax period ending on or before the date hereof. It is understood that any Income Taxes attributable to (x) the distributions contemplated by Section 2 of this Agreement or (y) any "deferred intercompany transaction" under Treasury Regulation Section 1.1502-13 or 1.1502-14 or any transaction governed by a similar provision that will be recognized as a result of the transactions completed by this Agreement shall be reported on the Tax Returns described in clause (b) of the foregoing sentence. It is further understood that any sales, use, transfer or similar Taxes attributable to the distributions contemplated by Section 2 of this Agreement shall be the sole responsibility of ChoicePoint and that ChoicePoint shall be solely responsible for the preparation of any Tax Returns relating to such Taxes. LabOne will prepare or cause to be prepared and will timely file or cause to be timely filed all other Tax Returns required of LabOne and its subsidiaries and Affiliates (including the Osborn Entities), or in respect of their assets or activities. Any such Tax Returns that include periods ending on or before the date hereof or that include the activities of any of the Osborn Entities prior to the date hereof will be prepared with the assistance of the ChoicePoint Entities, and will, insofar as they relate to the Osborn Entities, be on a basis consistent with the last previous such Tax Returns filed in respect of the Osborn Entities, unless ChoicePoint or LabOne, as the case may be, concludes that there is no reasonable basis for such position. Any reasonable out-of-pocket costs and expenses incurred in connection with the preparation and filing of any Tax Return referred to in the preceding sentence shall be borne by the ChoicePoint Entities and LabOne in proportion to their responsibility for the Taxes reported on such Tax Return, whether or not previously paid. None of LabOne or its Affiliates will file any amended Tax Returns for any periods for or in respect of the Osborn Entities with respect to which LabOne is not obligated to prepare or cause to be prepared the original such Tax Returns pursuant to this Section 10.1 without the prior written consent of ChoicePoint. -43- 10.2 Payment of Taxes. (a) The ChoicePoint Entities shall be jointly and severally obligated to timely pay or cause to be paid (a) all Income Taxes, and all Taxes shown as due other than Income Taxes, with respect to Tax Returns which ChoicePoint is obligated to prepare and file or cause to be prepared and filed pursuant to Section 10.1 and (b) all Taxes other than Income Taxes due on or before the date hereof for which no Tax Return is required to be filed. Subject to the ChoicePoint Entities' obligations described in Section 10.2(b) to pay LabOne an amount equal to the amount of any Taxes attributable to a Pre-Closing Tax Period, LabOne shall pay or cause to be paid (a) all Taxes shown as due with respect to any Tax Return for any taxable period that includes (but does not end on) the date hereof (a "Straddle Period") which LabOne is obligated to prepare and file or cause to be prepared and filed pursuant to Section 10.1 and (b) all Taxes owed by any of the Osborn Entities for all taxable periods beginning after the date hereof. (b) LabOne shall deliver to ChoicePoint copies of any Straddle Period Tax Return that LabOne is obligated to prepare and file or cause to be prepared and filed pursuant to Section 10.1 no later than ten (10) business days before filing for approval by ChoicePoint, which approval shall not be unreasonably withheld. Any such Tax Return shall be accompanied with a calculation by LabOne pursuant to the provisions of Section 10.7(b) of the amount of the Taxes shown on such Tax Return that are attributable to the Pre-Closing Tax Period, and that are therefore the joint and several responsibility of the ChoicePoint Entities. No later than three (3) business days prior to the due date of any such Straddle Period Tax Return, the ChoicePoint Entities shall be jointly and severally obligated to pay to LabOne an amount equal to the amount of such Taxes attributable to the Pre-Closing Tax Period pursuant to such calculation to the extent, if any, that such amount exceeds the sum of any estimated payments, deposits or credits made or applied prior to the date hereof and any amount reserved for tax liabilities on the Final Working Capital Statement with respect to the Taxes to which such Straddle Period Tax Return relates. In the event that ChoicePoint disagrees with such calculation, the ChoicePoint Entities shall not be relieved of their joint and several obligation to pay the amount resulting from such calculation, but may instead request that such calculation be reviewed by an independent accounting firm mutually agreeable to both ChoicePoint and LabOne. The decision of such independent accounting firm shall be final and binding upon the parties hereto, and the ChoicePoint Entities and LabOne shall each bear one-half of the fees and expenses of such accounting firm. LabOne shall pay to ChoicePoint the amount, if any, by which the sum of any estimated payments, deposits or credits made or applied prior to the date hereof with respect to such Tax for the Straddle Period exceeds the amount of such Taxes. 10.3 Tax Sharing Agreements. On the date hereof, all Tax sharing agreements and arrangements between (a) any of the Osborn Entities, on the one side and (b) either of the ChoicePoint Entities or any of their subsidiaries or Affiliates, on the other side, will be terminated and have no further effect for any taxable year or period (whether a past, present or future year or period), and no additional payments will be made thereunder on or after the date hereof in respect of a re-determination of Tax liabilities or otherwise. -44- 10.4 Carryforwards and Carrybacks. LabOne will cause each of the Osborn Entities to elect, where permitted by Law, to carry forward any net operating loss, net capital loss, charitable contribution or other item arising after the date hereof that could, in the absence of such an election, be carried back to a taxable period of any of the Osborn Entities ending on or before the date hereof in which any of the Osborn Entities were included in a Consolidated Tax Return. LabOne, on its own behalf and on behalf of its Affiliates, hereby waives any right to use or apply any net operating loss, net capital loss, charitable contribution or other item of any Osborn Entity for any Tax year ending on any date following the date hereof to any period of any Osborn Entity ending on or before the date hereof with respect to which any of the Osborn Entities was included in a Consolidated Tax Return. 10.5 Refunds and Credits. ChoicePoint will be entitled to retain, or receive immediate payment from LabOne or any of its subsidiaries or Affiliates (including the Osborn Entities) of any refund or credit arising with respect to any of the Osborn Entities (including, refunds and credits arising by reason of amended Tax Returns filed after the date hereof or otherwise) relating to Taxes with respect to any Tax period ending on or before the date hereof, including, without limitation, any refund relating to Kansas income Taxes with respect to the Tax period ending December 31, 1998; provided, however, that no value shall be assigned to any such prospective refund or credit on the Final Working Capital Statement. LabOne and the Osborn Entities will be entitled to retain, or receive immediate payment from ChoicePoint of, any refund or credit with respect to Taxes with respect to any taxable period beginning after the date hereof relating to any of the Osborn Entities. LabOne and ChoicePoint will equitably apportion any refund or credit with respect to Income Taxes with respect to any Straddle Period. Notwithstanding any other provision of this Section 10.5, ChoicePoint will be entitled to receive payment from LabOne of an amount equal to the amount of any credit claimed by LabOne or its subsidiaries (including the Osborn Entities) in any Tax Period beginning after the date hereof that is attributable to any consolidated unused foreign tax which is paid or accrued on or before the date hereof and attributed to any of the Osborn Entities under Treas. Reg ss. 1.1502-79(d); provided, however, that no value shall be assigned to any such foreign tax credit on the Final Working Capital Statement. 10.6 Tax Cooperation. Each of LabOne and ChoicePoint will provide the other party with such information and records and make such of its Representatives available as may reasonably be requested by such other party in connection with the preparation of any Tax Return or any audit or other proceeding that relates to any of the Osborn Entities. 10.7 Tax Indemnification. (a) The ChoicePoint Entities will jointly and severally indemnify, defend and hold the LabOne Indemnified Parties harmless from and against (i) all liability for Taxes of the Osborn Entities for any taxable period that ends on or before the date hereof and the portion of any Straddle Period ending on the date hereof, (ii) all liability (as a result of Treas. Reg.ss.1.1502-6(a) or otherwise) for Income Taxes of any ChoicePoint Entity or any other Person (other than the Osborn Entities) which is or has ever been affiliated with any of the Osborn Entities, or with whom any of the Osborn Entities otherwise joins or has ever joined (or is or has ever been required to join) in filing any consolidated, combined or unitary Tax Return, prior to the date hereof, (iii) all liability for any breach -45- of ChoicePoint's representations and warranties contained in Section 3.12 or the ChoicePoint Entities' covenants contained in this Section 10, (iv) all liability for any Taxes arising out of, or attributable to any of the distributions contemplated by Section 2 of this Agreement, and (v) all liability for reasonable legal, accounting and appraisal fees and expenses with respect to any item described in clause (i), (ii), (iii) or (iv) above; provided, however, that a LabOne Indemnified Party shall not be entitled to indemnification hereunder to the extent an accrual of liability or a specific reserve for such matter is included in the Final Working Capital Statement. Notwithstanding the foregoing, ChoicePoint will not indemnify, defend or hold harmless any member of the LabOne Indemnified Parties from any liability for Taxes attributable to any action taken on the date hereof by LabOne, any of its subsidiaries or Affiliates (including the Osborn Entities), or any transferee of LabOne or any of its subsidiaries or Affiliates (other than any such action taken in the ordinary course of business or expressly required or otherwise expressly contemplated by this Agreement) (a "LabOne Tax Act"). (b) LabOne will indemnify, defend and hold the ChoicePoint Indemnified Parties harmless from and against (i) except to the extent any of the ChoicePoint Entities is otherwise required to indemnify LabOne for such Tax pursuant to Section 10.7(a), all liability for Taxes of each of the Osborn Entities for any taxable period beginning after the date hereof and the portion of any Straddle Period beginning after the date hereof, (ii) all liability for Taxes attributable to a LabOne Tax Act, (iii) all liability for Taxes attributable to an election by LabOne under section 338 of the Code with respect to the purchase of the Osborn Entities and (iv) all liability for reasonable legal, accounting and appraisal fees and expenses with respect to any item described in clause (i), (ii) or (iii) above. (c) The obligations of each party to indemnify, defend and hold harmless the other party or parties and other Persons, pursuant to Sections 10.7(a) and 10.7(b), will terminate upon the expiration of all applicable statutes of limitations (giving effect to any extensions thereof); provided, however, that such obligations to indemnify, defend and hold harmless will not terminate with respect to any individual item as to which an Indemnified Party shall have, before the expiration of the applicable period, previously made a claim by delivering a notice (stating in reasonable detail the basis of such claim) to the applicable Indemnifying Party. (d) In the case of any Straddle Period: (i) The periodic Taxes of each of the Osborn Entities that are not based on income or receipts (e.g., property Taxes) for the portion of any Straddle Period ending on the date hereof (the "Pre-Closing Tax Period") shall be computed based on the ratio of the number of days in the Pre-Closing Tax Period and the number of days in the entire Tax period; (ii) Taxes of each of the Osborn Entities for the Pre-Closing Tax Period (other than Taxes described in Section 10.7(d)(i) above) will be computed as if such taxable period ended as of the close of business on the date hereof, and, in the case of any Taxes of any of the Osborn Entities attributable to the -46- ownership by any of the Osborn Entities of any equity interest in any partnership or other "flowthrough" entity, as if a taxable period of such partnership or other "flowthrough" entity ended as of the close of business on the date hereof, and, in each case, if such Taxes are Income Taxes, such Income Taxes shall be computed by determining the items of income, expense, deduction, loss or credit on a "closing of the books" basis as of the end of the date hereof; and (iii) Income Taxes of each of the Osborn Entities for which a Consolidated Tax Return is filed will be computed in accordance with the principles of Treas. Reg.ss. 1.1502-76 as if separate returns had been filed for each of the Osborn Entities for such Pre-Closing Tax Period and all prior taxable periods. (e) Any indemnity payment required to be made pursuant to this Section 10.7 will be paid within thirty (30) days after the Indemnified Party makes written demand upon the Indemnifying Party, but in no case earlier than five (5) business days prior to the date on which the relevant Taxes are required to be paid (or would be required to be paid if no such Taxes are due) to the relevant taxing authority (including estimated Tax payments). 10.8 Tax Contests. (a) If a claim is made by any taxing authority which, if successful, might result in an indemnity payment to any member of the LabOne Indemnified Parties or ChoicePoint Indemnified Parties pursuant to Section 10.7, the Indemnified Party will promptly notify the Indemnifying Party of such claim (a "Tax Claim"); provided, however, that the failure to give such notice will not affect the indemnification provided hereunder except to the extent the Indemnifying Party has actually been prejudiced as a result of such failure. (b) With respect to any Tax Claim relating to Taxes and relating to a taxable period ending on or before the date hereof or to any other taxable period in which any of the Osborn Entities joined in filing any Consolidated Tax Return, ChoicePoint will control all proceedings and may make all decisions in connection with such Tax Claim (including selection of counsel) and, without limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and sue for a refund where applicable Law permits such refund suits or contest the Tax Claim in any permissible manner. LabOne will control all proceedings and may make all decisions in connection with any Tax Claim other than a Tax Claim described in the first sentence of this Section 10.8(b) or a Tax Claim described in Section 10.8(c) (including selection of counsel). (c) ChoicePoint and LabOne will jointly control and participate in all proceedings taken in connection with any Tax Claim relating to Taxes of any of the Osborn Entities for any Straddle Period. Neither ChoicePoint nor LabOne will settle any -47- such Tax Claim without the prior written consent of the other (which consent shall not be unreasonably withheld). (d) Each of LabOne, the Osborn Entities and their respective Affiliates, on the one hand, and the ChoicePoint Entities and their respective Affiliates, on the other, will cooperate in contesting any Tax Claim, which cooperation will include the retention and (upon request) the provision to the requesting party of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim. 10.9 Definitions. As used in this Agreement: (a) "Consolidated Tax Returns" means Tax Returns which include the Osborn Entities, on the one hand, and the ChoicePoint Entities or any of their subsidiaries or Affiliates (other than the Osborn Entities), on the other hand; and (b) "Income Taxes" means all Taxes based upon, measured by, or calculated with respect to (a) net income or profits (including any capital gains, minimum taxes and any Taxes on items of tax preference, but not including sales, use, real property gains, real or personal property, gross or net receipts, transfer or other similar Taxes) or (b) multiple bases (including corporate franchise, doing business or occupation Taxes) if one or more of the bases upon which such Tax may be based upon, measured by, or calculated with respect to is described in clause (a) of this definition. SECTION 11. MISCELLANEOUS. 11.1 Notices. All notices, communications and deliveries hereunder shall be made in writing signed by the party making the same, shall specify the section hereunder pursuant to which it is given or being made, and shall be delivered personally or by telecopy transmission or sent by registered or certified mail or by any express mail or courier delivery service (with postage and other fees prepaid) as follows: To the ChoicePoint Entities: ChoicePoint Services Inc. 1000 Alderman Drive Alpharetta, Georgia 30005 Attention: J. Michael de Janes, Esq. Telephone: (770) 752-5745 Telecopy: (770) 752-5939 -48- with a copy to: King & Spalding 191 Peachtree Street, N.E. Atlanta, Georgia 30303-1763 Attention: Russell B. Richards, Esq. Telephone: (404) 572-4695 Telecopy: (404) 572-5100 To LabOne: 10101 Renner Boulevard Lenexa, Kansas 66219 Attention: W. Thomas Grant, II Telephone: (913) 888-1770 Telecopy: (913) 859-6804 with a copy to: Reboul, MacMurray, Hewitt, Maynard & Kristol 45 Rockefeller Plaza New York, New York Attention: Othon A. Prounis, Esq. Telephone: (212) 841-5785 Telecopy: (212) 841-5725 or to such other representative or at such other address of a party as such party hereto may furnish to the other parties in writing. Such notice shall be effective upon the date of delivery or refusal of delivery, if sent by personal delivery, registered, certified, or express mail, or courier delivery, or upon transmission by telecopy transmission, if immediately confirmed by telephone or electronic means. 11.2 Attachments. All schedules, annexes and exhibits attached hereto are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. 11.3 Successors in Interest. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and each of their respective successors and permitted assigns. No party may assign this Agreement or its rights or obligations hereunder without, if any ChoicePoint Entity intends to assign, the consent of LabOne or, if LabOne intends to assign, the consent of the Parent. Any attempted assignment in violation of this Section 11.3 shall be null and void. Notwithstanding the foregoing, from and after the date hereof, any party may assign this Agreement to any purchaser of a majority of its capital stock (whether by merger or otherwise) or all or substantially all of its assets. -49- 11.4 Number; Gender. Whenever the context so requires, the singular number shall include the plural and the plural shall include the singular, and the gender of any pronoun shall include the other genders. 11.5 Captions. The titles, captions, and table of contents contained in this Agreement are inserted herein only as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof. Unless otherwise specified to the contrary, all references to sections are references to sections of this Agreement and all references to exhibits, annexes and schedules are references to exhibits, annexes and schedules to this Agreement. 11.6 Knowledge. (a) "To the knowledge of ChoicePoint" or any similar phrase contained in this Agreement shall mean to the actual knowledge, after reasonable investigation, of Douglas C. Curling, Michael S. Wood, J. Michael de Janes, Dan H. Rocco, Gilbert P. Bourk, Roger A. Lewis, James Musatto, Jeff McCauley, Betsy Sears or any executive officer or director of any of the Osborn Entities (the "ChoicePoint Executives"). (b) "To the knowledge of LabOne" or any similar phrase contained in this Agreement shall mean to the actual knowledge, after reasonable investigation, of any executive officer or director of LabOne. 11.7 Controlling Law; Integration; Amendment. This Agreement shall be governed by and construed and enforced in accordance with the internal Laws of the State of Delaware without reference to Delaware choice of law rules. This Agreement, together with the Ancillary Agreements, constitute the entire agreement among the parties hereto and supersede all prior written and oral agreements between the parties with respect to the subject matter hereof; provided, however, the Confidentiality Agreement shall remain in full force and effect after the date hereof. This Agreement may not be amended, modified, or supplemented except by written agreement of LabOne and the Parent and no provision hereof shall be deemed to have been waived by any party hereto unless such waiver is in writing and signed by the party against whom enforcement is sought. It is understood and agreed by the parties that no failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including without limitation any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or other Governmental Authority or by any board of arbitrators by reason of such party or its counsel having or being deemed to have structured or drafted such provision. 11.8 Severability. Any provision hereof which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition -50- or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Law, the parties hereto waive any provision of Law which renders any such provision prohibited or unenforceable in any respect. 11.9 Counterparts. This Agreement may be executed in counterparts each of which shall be deemed an original and all of which together shall constitute one and the same agreement. 11.10 Enforcement of Certain Rights. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any Person other than the parties hereto, and their successors or permitted assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, or result in such Person being deemed a third-party beneficiary of this Agreement. 11.11 Injunctive Relief. Each of the parties hereby agrees that any remedy at law for any breach of any provision contained this Agreement shall be inadequate and that a party shall be entitled to seek injunctive relief, without proof of actual damages or the necessity of posting bond, in addition to any other remedy such party might have under this Agreement. 11.12 Submission to Jurisdiction. Each of the parties hereto agrees that any suit, action or proceeding arising out of or relating to this Agreement or the Ancillary Agreements, their subject matter, the performance by the parties of their respective obligations with respect to this Agreement and the Ancillary Agreements or the claimed breach thereof, whether brought at law or in equity and whether based in tort, contract or otherwise, or for recognition and enforcement of any judgment in respect thereof, shall be brought by any of such parties or any of their respective successors or permitted assigns in any federal or state court located in the County of New Castle, Delaware, and each of such parties hereby submits with regard to any such suit, action or proceeding for itself and in respect to its property, generally and unconditionally, to the exclusive jurisdiction of the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any such suit, action or proceeding (a) any claim that it is not personally subject to the jurisdiction of such courts for any reason other than the failure to lawfully serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), (c) that the suit, action or proceeding in any such court is brought in an inconvenient forum, (d) that the venue of such suit, action or proceeding is improper, (e) that this Agreement or any Ancillary Agreement or the subject matter hereof or thereof may not be enforced in or by such courts or (f) any right to a trial by jury. Each of the parties hereto irrevocably consents to the service of process in any such proceeding by the mailing of copies thereof by certified mail, postage prepaid, to such party's address for notices under this Agreement. [SIGNATURES FOLLOW ON NEXT PAGE.] -51- IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date and year first above written. CHOICEPOINT INC. By: /s/ J. Michael de Janes ------------------------------------------- Name: J. Michael de Janes Title: General Counsel and Secretary CHOICEPOINT SERVICES INC. By: /s/ J. Michael de Janes ------------------------------------------- Name: J. Michael de Janes Title: General Counsel and Secretary LABONE, INC. By: /s/ W. Thomas Grant II ------------------------------------------- Name: W. Thomas Grant II Title: President and CEO -----END PRIVACY-ENHANCED MESSAGE-----