Exhibit 10(i)
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LOAN AGREEMENT
Dated as of July 30, 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
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.....................4
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES.........................5
SECTION 5.1 Loan Events of Default...................................5
SECTION 5.2 Remedies.................................................6
SECTION 6 THE AGENT................................................7
SECTION 6.1 Appointment..............................................7
SECTION 6.2 Delegation of Duties.....................................7
SECTION 6.3 Exculpatory Provisions...................................8
SECTION 6.4 Reliance by Agent........................................8
SECTION 6.5 Notice of Default........................................8
SECTION 6.6 Non-Reliance on Agent and Other Lenders..................9
SECTION 6.7 Indemnification..........................................9
SECTION 6.8 Agent in Its Individual Capacity........................10
SECTION 6.9 Successor Agent.........................................10
SECTION 7 MISCELLANEOUS...........................................10
SECTION 7.1 Documentary Conventions.................................10
SECTION 7.2 No Waiver; Cumulative Remedies..........................10
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
July 30, 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 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) ADESA California 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)
ADESA California 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 July 30, 2001 (as amended, or supplemented or
otherwise modified from time to time, the "MASTER AGREEMENT"), among ADESA
Corporation, as Guarantor, ADESA California, Inc. and certain other Subsidiaries
of ADESA Corporation 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
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 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 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.
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(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 Note 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 Note. 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 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
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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
Agreements, 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 Agreements 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
either Guarantor, 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 ADESA 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 ADESA or such Lessee promptly upon receipt of a
written request by any Lender or the Agent. With respect to any event as to
which notice thereof by the Lessor to the Construction Agent is a requirement to
cause such event to become a Construction Agency Event of Default, the Lessor
agrees to give such notice to the Construction Agent promptly upon receipt of a
written request
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by any Lender or the Agent. The Lessor shall not, without the prior written
consent of the Required Lenders, waive any Event of Default or any Construction
Agency 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 Guarantors 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.
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
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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 a 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.
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.
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(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 Note, 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 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.
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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, any 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 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
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 Note.
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
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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, any 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, each 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, each 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, any 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 Note) 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
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negligence or willful misconduct. The agreements in this SECTION 6.7 shall
survive the payment of the Note 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, any 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 ADESA, ADESA'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.
The Required Lenders may remove the Agent for cause upon 10 days' notice to the
Agent effective upon the appointment of a successor agent. If the Agent shall
resign or be removed 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 an interest in the Note. After any retiring Agent's
resignation or removal 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 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.
x
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 Note 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 Note, and
shall continue in full force and effect so long as any amount payable to any
Lender under or in connection with this Loan Agreement or the Note is unpaid, at
which time this Loan Agreement shall terminate.
xi
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/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Vice President
------------------------
S-1 LOAN AGREEMENT
ATLANTIC FINANCIAL GROUP, LTD., as
Lessor and Borrower
By: Atlantic Financial Managers, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
S-2 LOAN AGREEMENT
SUNTRUST BANK,
as a Lender
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
S-3 LOAN AGREEMENT
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Title: Commercial Loan Officer
----------------------------
S-4 LOAN AGREEMENT
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
S-5 LOAN AGREEMENT
EXHIBIT A TO
LOAN AGREEMENT
NOTE
Atlanta, Georgia
$43,425,000 July 30, 2001
FOR VALUE RECEIVED, the undersigned, ATLANTIC FINANCIAL GROUP,
LTD.("LESSOR") promises to pay to the order of SUNTRUST BANK, in its capacity as
Agent (as defined below), for the ratable benefit of the Lenders, at the office
of the Agent at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other
address as the holder hereof shall have previously designated in writing to the
Lessor, the aggregate unpaid principal amount of all Loans made by the Lenders
to, or for the benefit of, the Lessor, as recorded either on the grid attached
to this Note or in the records of the Agent or the Lenders (and such recordation
shall constitute PRIMA FACIE evidence of the information so recorded; PROVIDED,
HOWEVER, that the failure to make any such recordation shall not in any way
affect the Lessor's obligation to repay this Note). The principal amount of each
Loan evidenced hereby shall be payable on or prior to the Lease Termination Date
as provided in the Loan Agreement.
The Lessor further promises to pay interest on the unpaid principal
amount of this Note from time to time outstanding, payable as provided in the
Loan Agreement, at the rates PER ANNUM provided in the Loan Agreement; PROVIDED,
HOWEVER, that such interest rate shall not at any time exceed the maximum rate
permitted by law. All payments of principal of and interest on this Note shall
be payable in lawful currency of the United States of America at the office of
the Agent as provided above or such other address as the holder hereof shall
have designated to the Lessor, in immediately available funds.
This Note is the Note referred to in that certain Loan Agreement, dated
as of July 30, 2001, among the Lessor, the lenders from time to time party
thereto, and SunTrust Bank, as agent (the "AGENT") for such lenders (as it may
be amended or modified from time to time, herein called the "LOAN AGREEMENT").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Loan Agreement. This Note is secured
pursuant to the other Loan Documents from the Lessor to the Agent referred to in
the Loan Agreement (including, without limitation, the Mortgages) and reference
is hereby made to the Loan Agreement and such other Loan Documents for a
statement of the terms and provisions of such security.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest, and notice of
dishonor, notice of the existence, creation or nonpayment of all or any of the
Loans and all other notices whatsoever.
This Note shall be governed by and construed in accordance with the
laws of the State of Georgia, without regard to conflicts of law principles.
All payments and other obligations to be made or performed by the
Lessor in respect of the Loans and this Note shall be made only from certain
payments received under the Lease, the Guaranty Agreements and the Construction
Agency Agreement and certain proceeds of the Leased Properties and only to the
extent that the Lessor shall have received sufficient payments from such sources
to make payments in respect of the Loans in accordance with and subject to the
priorities set forth in the Loan Agreement. Each Lender agrees that it will look
solely to such sources of payments to the extent available for distribution to
the Lenders or the Agent as provided in the Loan Agreement and that neither the
Lessor, nor any of its partners, nor the Agent is or shall be personally liable
to any Lender for any amount payable hereunder or under the Loan Agreement.
Notwithstanding anything to the contrary contained herein, nothing in this Note
shall be construed as creating any liability (other than for willful misconduct,
gross negligence or misrepresentation) of Lessor individually to pay any sum or
to perform any covenant, condition, obligation or warranty either express or
implied, in this Note (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 Lessor hereunder (other than for
willful misconduct or gross negligence) that it will look solely to those
certain payments received under the Lease, the Guaranty Agreements and the
Construction Agency Agreement and those certain proceeds of the Leased
Properties as provided in the Loan Agreement; PROVIDED, HOWEVER, that Lessor in
its individual capacity shall in any event be liable with respect to (i) the
removal of Lessor Liens, (ii) its gross negligence or willful misconduct or
(iii) failure to turn over payments the Lessor has received in accordance with
the Loan Agreement and the Master Agreement; and PROVIDED FURTHER that the
foregoing exculpation of the Lessor shall not be deemed to be exculpations of
either Guarantor, any Lessee or any other Person.
-2-
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
by its duly authorized officer as of the day and year first above written.
ATLANTIC FINANCIAL GROUP, LTD.
By: Atlantic Financial Managers,
Inc., its General Partner
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
-3-
GRID ATTACHED TO A NOTE
DATED JULY 30, 2001 OF
ATLANTIC FINANCIAL GROUP, LTD.
AS LESSOR
PAYABLE TO THE ORDER OF SUNTRUST BANK, AS AGENT
Loans made by the Lenders to the Lessor and payments of principal of such Loans.
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Outstanding Related
Amount of Interest Principal Leased Notation
Date Loan Rate Balance Property Made By
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