Construction Agency Agreement

EXHIBIT 10.11(e)


CONSTRUCTION AGENCY AGREEMENT


dated as of July 31, 1997


among


SUNTRUST BANKS, INC.


and


CHOICEPOINT INC.
as Construction Agent


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TABLE OF CONTENTS


Page


ARTICLE I
DEFINITIONS


1.1. Defined Terms..................................................2


ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT


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............................4


ARTICLE III
THE BUILDINGS


3.1. Construction...................................................5 3.2. Amendments; Modifications......................................5 3.3. Casualty, Condemnation and Construction Force Majeure
Events.........................................................6


ARTICLE IV
PAYMENT OF FUNDS


4.1. Funding of Property Acquisition Costs and Property
Buildings Costs................................................6


ARTICLE V
CONSTRUCTION AGENCY EVENTS OF DEFAULT


5.1. Construction Agency Events of Default..........................7 5.2. Damages........................................................8 5.3. Remedies; Remedies Cumulative..................................8


ARTICLE VI
NO CONSTRUCTION AGENCY FEE


6.1. Lease as Fulfillment of Lessor's Obligations...................8


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ARTICLE VII
LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS


7.1. Exercise of the Lessor's Rights................................9 7.2. Lessor's Right to Cure Construction Agent's Defaults...........9


ARTICLE VIII
MISCELLANEOUS


8.1. Notices........................................................9 8.2. Successors and Assigns.........................................9 8.3. GOVERNING LAW.................................................10 8.4. Amendments and Waivers........................................10 8.5. Counterparts..................................................10 8.6. Severability..................................................10 8.7. Headings and Table of Contents................................10 ||


EXHIBITS


Exhibit A Form of Supplement to Construction
Agency Agreement


Exhibit B Form of Assignment of Construction
Contracts


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CONSTRUCTION AGENCY AGREEMENT


CONSTRUCTION AGENCY AGREEMENT, dated as of July 31, 1997 (as amended, supplemented or otherwise modified from time to time, this "Agreement"), between SUNTRUST BANKS, INC., a Georgia corporation, (the "Lessor"), and CHOICEPOINT INC., a Georgia corporation (in its capacity as construction agent, the "Construction Agent").


PRELIMINARY STATEMENT


A. ChoicePoint Inc., as lessee (the "Lessee"), and Lessor, as lessor, are parties to that certain Lease (as amended, supplemented or otherwise modified from time to time pursuant thereto, the "Lease"), pursuant to which the Lessee has agreed to lease from Lessor, and Lessor have agreed to lease to Lessee, Lessor's interests in certain Leased Properties.


B. Lessor, the Lessee, and SunTrust Bank, Atlanta, as agent (in such capacity, the "Agent") are parties to that certain Master Agreement, dated as of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the "Master Agreement").


C. Subject to the terms and conditions hereof, (i) the Lessor desires to appoint the Construction Agent 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:


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ARTICLE I


DEFINITIONS


1.1. Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in 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 the Construction Agent as its exclusive agent for the identification and acquisition from time to time of Land to be acquired by the Lessor and construction of the Buildings in accordance with the Plans and Specifications on such Land.


2.2. Acceptance; Construction. The Construction Agent hereby unconditionally accepts the designation and appointment as Construction Agent. The Construction Agent will cause the Buildings to be constructed on the Land in substantial accordance with the Plans and Specifications and equipped in substantial compliance in all material respects with all Requirements of Law and insurance requirements.


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 commence construction of a Building on each parcel of Land as soon as is practicable after the Closing Date in respect of such Property. For purposes hereof, construction of a Building shall be deemed to commence on the date (the "Construction Commencement Date") on which [excavation for the foundation for such Building] commences, as certified by the Construction Agent to the Lessor and the Agent in writing. 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 and development of such Land will be governed by the terms of this Agreement. Following the


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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.


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 ease; and


(c) termination of this Agreement pursuant to Article V
hereof.


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, 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 Assignment of Construction Documents in the form of Exhibit B attached hereto, 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.


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 hereunder with respect to the Leased Properties acquired by the Lessor, including, without limitation:


(i) the identification and assistance w ...