EXHIBIT 10.5
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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
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TABLE OF CONTENTS
Page
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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.
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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.
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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/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Director
----------------------------------
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ATLANTIC FINANCIAL GROUP, LTD., as
Lessor and Borrower
By: Atlantic Financial Managers, Inc.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: President
S-2
SUNTRUST BANK,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Director
----------------------------------
S-3
FLEET NATIONAL BANK,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: Director
----------------------------------
S-4
BNP PARIBAS,
as a Lender
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
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