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Exhibit 10.7
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of June 26, 2003
among
SUNTRUST EQUITY FUNDING, LLC,
as Lessor and Borrower,
the financial institutions party hereto,
as Lenders
and
SUNTRUST BANK,
as Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS; INTERPRETATION.......................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND
PREPAYMENT OF LOANS...............................................2
SECTION 2.1 Commitment...................................................2
SECTION 2.2 Notes........................................................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;
RELEASE; SECURITY INTEREST........................................3
SECTION 3.1 Distribution and Application of Payments.....................3
SECTION 3.2 Release of Leased Properties.................................3
SECTION 4. THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE......................4
SECTION 4.1 Covenant of Lessor...........................................4
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from
Certain Lease Obligations and Certain Proceeds
of Leased Property Only......................................5
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.........................................................8
SECTION 6.1 Appointment..................................................8
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 Amendments and Waivers......................................11
SECTION 7.2 Notices.....................................................11
SECTION 7.3 No Waiver; Cumulative Remedies..............................11
SECTION 7.4 Successors and Assigns......................................11
SECTION 7.5 Counterparts................................................11
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TABLE OF CONTENTS
Page
SECTION 7.6 GOVERNING LAW...............................................11
SECTION 7.7 Survival and Termination of Agreement.......................11
SECTION 7.8 Entire Agreement............................................12
SECTION 7.9 Severability................................................12
EXHIBITS
EXHIBIT A-1 Form of A Note
EXHIBIT A-2 Form of B Note
ii
THIS AMENDED AND RESTATED LOAN AGREEMENT (as it may be further amended or
modified from time to time in accordance with the provisions hereof, this "Loan
Agreement") dated as of June 26, 2003 and effective as of the Effective Date is
among SUNTRUST EQUITY FUNDING, LLC, a Delaware limited liability company, as
Lessor and borrower (the "Lessor"); SUNTRUST BANK and the other financial
institutions which are, or may from time to time become, parties hereto as
lenders (the "Lenders") and SUNTRUST BANK, Georgia banking corporation, as agent
for the Lenders (in such capacity, the "Agent").
PRELIMINARY STATEMENT
1. Atlantic Financial Group, Ltd. ("AFG"), certain financial institutions
and the Agent are parties to those certain Loan Agreements, dated as of July 12,
2002, November 15, 2000 and May 22, 1998, respectively (the "Original Loan
Agreements"). AFG has transferred its interests in the Leased Properties to the
AFG Transferee, and the AFG Transferee has merged into the Lessor. In connection
therewith, the parties hereto desire to amend and restate the Original Loan
Agreements in their entirety pursuant hereto.
2. 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) Concord, 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) Concord
wishes to obtain, and the Lessor is willing to provide, funding for the
acquisition of the Land and any Buildings thereon or, 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
Amended and Restated Master Agreement, dated as of June 26, 2003 (as it may be
further amended or modified from time to time, the "Master Agreement"), among
Concord EFS, Inc., as Guarantor, Concord EFS, Inc. and certain Subsidiaries of
Concord EFS, Inc. that may hereafter become party thereto, as Lessees, Concord
Corporate Services, Inc., Star Systems, LLC and certain other Significant
Subsidiaries that may hereafter become party thereto, as Subsidiary Guarantors,
the Lessor, the Lenders and the Agent for all purposes hereof; and the rules of
interpretation set forth in Appendix A hereto shall apply to this Loan
Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT OF
LOANS
SECTION 2.1 Commitment. 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 Effective
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 A Percentage of the aggregate amount to be funded
by the Funding Parties on such date and a B Loan in the amount of such Lender's
Pro Rata Share of the B Percentage of the aggregate amount to be funded by the
Funding Parties on such date.
SECTION 2.2 Notes. The A Loans made by each Lender to the Lessor shall be
evidenced by a note of the Lessor (an "A Note"), substantially in the form of
Exhibit A-1 with appropriate insertions, and the B Loans made by each Lender to
the Lessor shall be evidenced by a note of the Lessor (a "B Note") substantially
in the form of Exhibit A-2 with appropriate insertions, each 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 Lenders' aggregate Pro Rata Shares of the A
Percentage of the aggregate Commitments and the Lenders' aggregate Pro Rata
Shares of the B Percentage of the aggregate Commitments, respectively (or, if
less, the aggregate unpaid principal amount of all A Loans or B Loans, as the
case may be, made by the Lenders to the Lessor). The Notes shall be issued in
replacement of the notes issued pursuant to the Original Loan Agreements, shall
be dated the Effective 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 Notes
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. Each 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, each 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 Adjusted
LIBO Rate 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
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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 (as well after as before judgment).
(c) Interest accruing on each Loan with respect to any Leased Property
during the Construction Term of such Leased Property shall be added to the
principal amount of such Loan from 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; RELEASE; SECURITY INTEREST
SECTION 3.1 Distribution and Application of Payments. Payments of Rent and
proceeds of the Leased Properties shall be distributed as set forth in Article
VI of the Master Agreement.
SECTION 3.2 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 Section 14.1 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 Section 2.6 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, and UCC-3 termination statements
shall be filed in all of the appropriate offices with respect to such Leased
Property or Properties, all at the Lessees' expense.
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(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 and UCC-3
termination statements shall be filed in all of the appropriate offices, all at
the Lessees' expense.
(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.
(d) Upon the termination of the Lenders' Commitments and the payment in
full of all of the Loans and all other amounts owing to the Lenders hereunder or
under any other Operative Document and the Lessor Invested Amounts and all other
amounts owing to the Funding Parties and the Agent under the Operative Documents
(other than unasserted indemnities), all remaining moneys shall be paid out to
Concord.
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 Required Funding Parties 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 Required Funding Parties 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 and each Lender, 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 set forth in clauses (i)
through (iv) of the first sentence of Section 3.3 of the Construction Agency
Agreement, provided that the Lessor
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shall only be obligated 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 Notes and this Loan Agreement
shall be made only from certain payments received under the Lease, the Guaranty
Agreement, the Subsidiary Guaranty 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 any Note. Nothing in this Loan Agreement, the
Notes 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, the Subsidiary Guaranty 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, willful misconduct, misrepresentation or breach of contract (other
than the failure to make payments in respect of the Loans) or (ii) failure to
turn over payments the Lessor has received in accordance with Article VI of the
Master Agreement; and provided further that the foregoing exculpation of the
Lessor shall not be deemed to be exculpations of any Lessee or any other Person.
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 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 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 Funding Parties, waive any Event of Default.
(b) Acceleration of Lease Balance. When an Event of Default exists, the
Lessor, upon the direction of the Required Funding Parties, shall exercise such
remedies under Article XIII of the Lease as are directed by the Required Funding
Parties, including demanding payment in full of the Lease Balance by the Lessees
(the "Acceleration"). Following the Acceleration, the Lessor shall consult with
the Lenders regarding actions to be taken in response to such Event of Default.
The Lessor (1) shall not, without the prior written consent of the Required
Funding Parties and (2) shall (subject to the provisions of this Section), if so
directed by the Required Funding Parties, 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, the Subsidiary Guarantors or the Guarantor under the Operative
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Documents in respect of such Event of Default; provided, however, that any
payments received by the Lessor shall be distributed in accordance with Article
VI of the Master Agreement. Notwithstanding any such consent, direction or
approval by the Required Funding Parties 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, or unless the Funding Parties provide to the
Lessor an indemnity, on a pro rata basis, in form and substance reasonably
acceptable to the Lessor, for such liability, loss or damage or unless and until
the Funding Parties advance to the Lessor, on a pro rata basis, an amount which
is sufficient, in the Lessor's reasonable judgment, to cover such liability,
expense, loss or damage. Notwithstanding the foregoing, on and after the related
Release Date (and any application otherwise required under Article VI 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.
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
Article VI of the Master Agreement any amount received by the Lessor pursuant to
the Lease, the Master Agreement or any other Operative Document 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 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
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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 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 for substantially all of
its property without its consent and shall not be dismissed or stayed within a
period of sixty (60) days; or bankruptcy, reorganization or insolvency
proceedings shall be instituted by or against the Lessor and, if instituted
against the Lessor, shall not be dismissed or stayed for a period of sixty (60)
days; or
(f) any Event of Default shall occur and be continuing.
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 (unless an Event of
Default has occurred and is continuing, in which case upon written request of
the Required Funding Parties), 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 (unless an Event of Default has
occurred and is continuing, in which case upon written instructions of the
Required Funding Parties) 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 (unless
an Event of Default has occurred and is continuing, in which case upon written
instructions of the Required Funding Parties) 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
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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 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 or any Lessee. The Agent shall
promptly provide to the Lenders copies of financial statements and compliance
certificates that are delivered solely to the Agent pursuant to the Master
Agreement.
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
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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 the payee of any Note as the owner thereof 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 first receive such advice or concurrence of the
Required Lenders (or Required Funding Parties, if required hereunder) 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 (or Required
Funding Parties, if required hereunder), 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 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
(unless a Potential Event of Default or an Event of Default has occurred and is
continuing, in which case as reasonably directed by the Required Funding
Parties); 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, any Subsidiary 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,
each Subsidiary 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, each Subsidiary Guarantor and
each Lessee.
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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, any
Subsidiary 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.
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
to the extent resulting 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, any Subsidiary 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 is an Affiliate of
the Lessor and in its individual capacity has had and continues to have other
business relations and transactions with Concord, certain of its Subsidiaries
and the Lessor.
SECTION 6.9 Successor Agent. The Agent may resign as Agent upon 20 days'
notice to the Lenders and Concord 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
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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 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 Amendments and Waivers. Neither this Loan Agreement, any Note,
nor any terms hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of Section 8.4 of the Master Agreement.
SECTION 7.2 Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be given in accordance with Section 8.2 of the Master Agreement.
SECTION 7.3 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 7.4 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 7.5 Counterparts. This Loan Agreement may be executed by one or
more of the parties to this Loan Agreement on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. A set of the counterparts of this Loan
Agreement signed by all the parties hereto shall be lodged with the Lessor and
the Agent.
SECTION 7.6 GOVERNING LAW. THIS LOAN AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS LOAN AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF GEORGIA.
SECTION 7.7 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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SECTION 7.8 Entire Agreement. This Loan Agreement and the other Operative
Documents set forth the entire agreement of the parties hereto with respect to
its subject matter, and supersedes all previous understandings, written or oral,
with respect thereto.
SECTION 7.9 Severability. Any provision of this Loan Agreement or of the
Notes which is prohibited, unenforceable or not authorized in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of any such provision in any other jurisdiction.
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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/ BRYAN W. FORD
------------------------------------
Bryan W. Ford
Director
S-1 AMENDED AND RESTATED
LOAN AGREEMENT
SUNTRUST EQUITY FUNDING, LLC,
as Lessor and Borrower
By: /s/ R. TODD SHUTLEY
------------------------------------
R. Todd Shutley
Senior Vice President and Manager
S-2 AMENDED AND RESTATED
LOAN AGREEMENT
BNP PARIBAS, as Lender
By: /s/ SEAN T. CONLEN
------------------------------------
Sean T. Conlen
Managing Director
By: /s/ TJALLING TERPSTRA
------------------------------------
Tjalling Terpstra
Director
S-3 AMENDED AND RESTATED
LOAN AGREEMENT