Exhibit 10.1
UNSECURED CREDIT AGREEMENT
Dated as of August 27, 2004
by and among
CBL & ASSOCIATES LIMITED PARTNERSHIP,
as Borrower,
CBL & ASSOCIATES PROPERTIES, INC.,
as Parent, solely for the limited
purposes set forth in Section 12.19.,
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 12.5.,
as Lenders,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and
Co-Lead Arranger,
KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent and Co-
Lead Arranger,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent
and
U. S. BANK, NATIONAL ASSOCIATION,
as Documentation Agent
TABLE OF CONTENTS
ARTICLE I. Definitions.....................................................1
Section 1.1. Definitions...................................1
Section 1.2. General; References to San Francisco Time....15
ARTICLE II. Credit Facility................................................16
Section 2.1. Advances.....................................16
Section 2.2. Rates and Payment of Interest on Advances....16
Section 2.3. Number of Interest Periods...................17
Section 2.4. Repayment of Advances........................17
Section 2.5. Prepayments..................................17
Section 2.6. Late Charges.................................18
Section 2.7. Provisions Applicable to LIBOR Advances;
Limitation on Base Rate Advances.............18
Section 2.8. Notes........................................19
Section 2.9. Voluntary Reductions of the Commitment.......19
Section 2.10. Increase in Commitments......................20
Section 2.11. Extension of Termination Date................20
Section 2.12. Amount Limitations...........................21
Section 2.13. Authorized Representatives...................21
ARTICLE III. Payments, Fees and Other General Provisions....................21
Section 3.1. Payments.....................................21
Section 3.2. Pro Rata Treatment...........................21
Section 3.3. Sharing of Payments, Etc.....................22
Section 3.4. Several Obligations..........................22
Section 3.5. Fees.........................................22
Section 3.6. Computations.................................23
Section 3.7. Usury........................................23
Section 3.8. Defaulting Lenders...........................23
Section 3.9. Taxes........................................24
ARTICLE IV. Yield Protection, Etc..........................................25
Section 4.1. Additional Costs; Capital Adequacy...........25
Section 4.2. Suspension of LIBOR Advances.................26
Section 4.3. Illegality...................................26
Section 4.4. Compensation.................................27
Section 4.5. Treatment of Affected Advances...............27
Section 4.6. Affected Lenders.............................28
Section 4.7. Change of Lending Office.....................28
Section 4.8. Assumptions Concerning Funding of LIBOR
Advances.....................................28
ARTICLE V. CONDITIONS PRECEDENT...........................................29
Section 5.1. Initial Conditions Precedent.................29
Section 5.2. Conditions Precedent to All Advances.........30
ARTICLE VI. Representations and Warranties.................................31
Section 6.1. Representations and Warranties...............31
Section 6.2. Survival of Representations and
Warranties, Etc..............................35
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ARTICLE VII. Affirmative Covenants..........................................35
Section 7.1. Preservation of Existence and Similar
Matters......................................35
Section 7.2. Compliance with Applicable Law...............35
Section 7.3. Maintenance of Property......................36
Section 7.4. Insurance....................................36
Section 7.5. Payment of Taxes and Claims..................36
Section 7.6. Books and Records; Inspections...............36
Section 7.7. Use of Proceeds..............................37
Section 7.8. Environmental Matters........................37
Section 7.9. Further Assurances...........................37
Section 7.10. REIT Status..................................37
Section 7.11. Exchange Listing.............................37
ARTICLE VIII. INFORMATION....................................................37
Section 8.1. Quarterly Financial Statements...............38
Section 8.2. Year-End Statements..........................38
Section 8.3. Compliance Certificate.......................38
Section 8.4. Other Information............................38
ARTICLE IX. Negative Covenants.............................................39
Section 9.1. Financial Covenants..........................39
Section 9.2. Restrictions on Intercompany Transfers.......41
Section 9.3. Merger, Consolidation, Sales of Assets
and Other Arrangements.......................42
Section 9.4. Acquisitions.................................42
Section 9.5. Plans........................................43
Section 9.6. Fiscal Year..................................43
Section 9.7. Modifications of Organizational Documents....43
Section 9.8. Transactions with Affiliates.................43
ARTICLE X. DEFAULT........................................................43
Section 10.1. Events of Default............................43
Section 10.2. Remedies Upon Event of Default...............47
Section 10.3. Remedies Upon Default........................47
Section 10.4. Permitted Deficiency.........................47
Section 10.5. Marshaling; Payments Set Aside...............48
Section 10.6. Allocation of Proceeds.......................48
Section 10.7. Performance by Agent.........................49
Section 10.8. Rights Cumulative............................49
ARTICLE XI. The Agent......................................................49
Section 11.1. Authorization and Action.....................49
Section 11.2. Agent's Reliance, Etc........................50
Section 11.3. Notice of Defaults...........................51
Section 11.4. ▇▇▇▇▇ Fargo as Lender........................51
Section 11.5. Approvals of Lenders.........................51
Section 11.6. Lender Credit Decision, Etc..................51
Section 11.7. Indemnification of Agent.....................52
Section 11.8. Property Matters.............................53
Section 11.9. Successor Agent..............................53
Section 11.10. Titled Agents................................53
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ARTICLE XII. Miscellaneous..................................................54
Section 12.1. Notices......................................54
Section 12.2. Expenses.....................................55
Section 12.3. Setoff.......................................55
Section 12.4. Litigation; Jurisdiction; Other Matters;
Waivers......................................55
Section 12.5. Successors and Assigns.......................56
Section 12.6. Amendments and Waivers.......................57
Section 12.7. Nonliability of Agent and Lenders............59
Section 12.8. Confidentiality..............................59
Section 12.9. Indemnification..............................59
Section 12.10. Termination; Survival........................61
Section 12.11. Severability of Provisions...................61
Section 12.12. Governing Law................................61
Section 12.13. Counterparts.................................61
Section 12.14. Obligations with Respect to Loan Parties.....61
Section 12.15. Independence of Covenants....................61
Section 12.16. Entire Agreement.............................62
Section 12.17. Construction; Conflict of Terms..............62
Section 12.18. Limitation of Liability of Borrower's
General Partner..............................62
Section 12.19. Limited Nature of Parent's Obligations.......62
Section 12.20. Limitation of Liability of Borrower's
Directors, Officers, Etc.....................62
Section 12.21. Replacement of Notes.........................62
SCHEDULE 2.13.....Authorized Representatives
SCHEDULE 6.1.(b)..Ownership of Loan Parties
SCHEDULE 6.1.(f)..Litigation
EXHIBIT A Form of Assignment and Assumption Agreement
EXHIBIT B Form of Note
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Parent Guaranty
EXHIBIT G Form of Compliance Certificate
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THIS UNSECURED CREDIT AGREEMENT dated as of August 27, 2004 by and
among CBL & Associates Limited Partnership, a limited partnership organized
under the laws of the State of Delaware (the "Borrower"), CBL & Associates
Properties, Inc., a corporation organized under the laws of the State of
Delaware (the "Parent"), joining in the execution of this Agreement solely for
the limited purposes set forth in Section 12.19., each of the financial
institutions initially a signatory hereto together with their assignees under
Section 12.5. (the "Lenders"), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("▇▇▇▇▇
Fargo") as contractual representative of the Lenders to the extent and in the
manner provided in Article XI. (in such capacity, the "Agent") and as a Co-Lead
Arranger (in such capacity, a "Co-Lead Arranger"), KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent (in such capacity, "Syndication Agent") and as a Co-Lead
Arranger (in such capacity, a "Co-Lead Arranger"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Documentation Agent (in such capacity, a "Documentation
Agent") and U.S. BANK NATIONAL ASSOCIATON, as a Documentation Agent (in such
capacity, a "Documentation Agent").
WHEREAS, the Borrower desires to obtain from the Agent and the Lenders,
and the Agent and the Lenders desire to make available to the Borrower, a
revolving credit facility in an amount up to $400,000,000, on the terms and
conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1.......Definitions
In addition to terms defined elsewhere herein, the following
terms shall have the following meanings for the purposes of this Agreement:
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted Asset Value" means, as of a given date, the sum of: (a)(i)
EBITDA attributable to malls and power centers for the fiscal quarter most
recently ended times (ii) 4; divided by (iii) 8.25% plus (b)(i) EBITDA
attributable to all other assets for the fiscal quarter most recently ended
times (ii) 4; divided by (iii) 9.25%. In determining Adjusted Asset Value (i)
EBITDA attributable to real estate properties acquired during such fiscal
quarter, and EBITDA attributable to Properties development of which was
completed during such fiscal quarter, shall be disregarded, (ii) EBITDA
attributable to any Property which is currently under development shall be
excluded, (iii) with respect to any Subsidiary that is not a Wholly Owned
Subsidiary, only the Borrower's Ownership Share of the EBITDA attributable to
such Subsidiary shall be used when determining Adjusted Asset Value, and (iv)
EBITDA shall be attributed to malls and power centers based on the ratio of (x)
revenues less property operating expenses (to be determined exclusive of
interest expense, depreciation and general and administrative expenses) of malls
and power centers to (y) total revenues less total property operating expenses
(similarly determined), such revenues and expenses to be determined on a
quarterly basis in a manner consistent with the Parent's method of reporting of
segment information in the notes to its financial statements for the fiscal
quarter ended March 31, 2004 as filed with the Securities and Exchange
Commission, and otherwise in a manner reasonably acceptable to the Agent. In
addition, in the case of any operating Property acquired in the immediately
preceding period of eighteen (18) consecutive months for a purchase price
indicative of a capitalization rate of less than 8.25%, EBITDA attributable to
such Property shall be excluded from the determination of Adjusted Asset Value,
if that particular operating Property is valued in Parent's financial statements
at its purchase price.
"Advance" means an advance made by a Lender to the Borrower pursuant to
Section 2.1(a).
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"Affiliate" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or indirectly owning or holding ten percent (10.0%)
or more of any Equity Interest in the Borrower; or (c) ten percent (10.0%) or
more of whose voting stock or other Equity Interests are directly or indirectly
owned or held by the Borrower. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with") means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or by contract or
otherwise. The Affiliates of a Person shall include any officer or director of
such Person. In no event shall the Agent or any Lender be deemed to be an
Affiliate of the Borrower.
"Agent" means ▇▇▇▇▇ Fargo Bank, National Association or any successor
Agent appointed pursuant to Section 11.9.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable LIBOR Rate Margin" means, as of any date of determination,
the following amount, based on the Leverage Ratio for the most recent fiscal
quarter in respect of which Borrower has delivered a Compliance Certificate
pursuant to Section 8.3 hereof:
--------------------------------- -------------------------
APPLICABLE LIBOR
LEVERAGE RATE MARGIN
--------------------------------- -------------------------
Less than forty-five percent One hundred (100) basis
(45%) points (1.00%)
--------------------------------- -------------------------
Greater than or equal to One hundred ten (110)
forty-five percent (45%) but basis points (1.10%)
less than fifty-five percent
(55%)
--------------------------------- -------------------------
Greater than or equal to fifty One hundred twenty-five
five percent (55%) but less (125) basis points
than sixty percent (60%) (1.25%)
--------------------------------- -------------------------
Greater than or equal to sixty One hundred forty-five
percent (60%) (145) basis points
(1.45%)
--------------------------------- -------------------------
provided that if, Borrower does not timely deliver the Compliance Certificate
required to be delivered pursuant to Section 8.3 hereof setting forth the
Leverage Ratio for such fiscal quarter, and does not cure such failure within
ten (10) days after notice from Agent, then, for the period commencing on the
first day after the expiration of such ten-day cure period and continuing until
such Compliance Certificate is so delivered, the "Applicable LIBOR Rate Margin"
shall be one hundred forty-five (145) basis points. As of the date of Closing,
the Applicable LIBOR Rate Margin is one hundred ten (110) basis points.
6
"Assignee" has the meaning given that term in Section 12.5.(c).
"Assignment and Assumption" means an Assignment and Assumption
Agreement among a Lender, an Assignee and the Agent, substantially in the form
of Exhibit A.
"Base Rate" means the Federal Funds Rate plus one percent (1.0%) (i.e.
one hundred (100) basis points); provided however, in no event shall the Base
Rate ever be less than, at the time of such determination, LIBOR for an Interest
Period of one month plus the then applicable Applicable LIBOR Margin Rate. Such
rate may not be the lowest rate charged by the Lender then acting as Agent or
any of the other Lenders on similar loans or extensions of credit. Each change
in the Base Rate shall become effective without prior notice to the Borrower or
the Lenders automatically as of the opening of business on the date of such
change in the Base Rate.
"Base Rate Advance" means an Advance bearing interest at a rate based
on the Base Rate.
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and permitted assigns.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in San Francisco, California are authorized or required to
close and (b) with reference to a LIBOR Advance, any such day that is also a day
on which dealings in Dollar deposits are carried out in the London interbank
market.
"Commitment" means, as to each Lender, such Lender's obligation to make
Advances pursuant to Section 2.1., in an amount up to, but not exceeding the
amount set forth for such Lender on its signature page hereto as such Lender's
"Commitment Amount" or as set forth in the applicable Assignment and Assumption
Agreement, as the same may be reduced from time to time pursuant to Section 2.9.
or otherwise pursuant to the terms of this Agreement or as appropriate to
reflect any assignments to or by such Lender effected in accordance with Section
12.5.
"Commitment Percentage" as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Commitment Percentage" of each Lender shall be the Commitment
Percentage of such Lender in effect immediately prior to such termination or
reduction.
"Compliance Certificate" has the meaning given that term in Section
8.3.
"Continue", "Continuation" and "Continued" each refers to the
continuation of an Advance which is a LIBOR Advance from one Interest Period to
another Interest Period pursuant to Section 2.7.(a).
"Convert", "Conversion" and "Converted" each refers to the conversion
of an Advance of one Type into an Advance of another Type pursuant to Section
2.7.(b).
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Advance, (b) the Conversion of an Advance and (c) the
Continuation of a LIBOR Advance.
"Debt Service" means, with respect to a Person and for a given period,
the sum of the following: (a) such Person's Interest Expense for such period;
(b) regularly scheduled principal payments on Indebtedness of such Person made
during such period, other than any balloon, bullet or similar principal payment
payable on any Indebtedness of such Person which repays such Indebtedness in
full; and (c) such Person's Ownership Share of the amount of any payments of the
type described in the immediately preceding clause (b) of Unconsolidated
Affiliates of such Person.
7
"Default" means any of the events specified in Section 10.1., whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
"Default Rate" means a rate per annum equal to the Prime Rate as in
effect from time to time plus two percent (2.0%).
"Defaulting Lender" has the meaning set forth in Section 3.8.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, for any period, net income (loss) of the Parent and its
Subsidiaries determined on a consolidated basis for such period excluding the
following amounts (but only to the extent included in determining net income
(loss) for such period and without duplication):
(a) depreciation and amortization expense and other non-cash charges
for such period less depreciation and amortization expense allocable to minority
interest in Subsidiaries of the Borrower for such period;
(b) interest expense for such period less interest expense allocable to
minority interest in Subsidiaries of the Borrower for such period;
(c) minority interest in earnings of the Borrower for such period;
(d) (i) extraordinary and nonrecurring net gains or losses (other
than gains or losses from the sale of outparcels of Properties, except as
otherwise provided in clause (d)(ii) below) for such period;
(ii)..gains or losses from the sale of outparcels and
non-operating Properties for such period (provided however,
that the gains or losses from such sales of outparcels and non-operating
Properties may not exceed five percent (5%) of EBITDA calculated prior to taking
such gains or losses into account); and
(iii).expense relating to the extinguishments of Indebtedness for
such period;
(e) net gains or losses on the disposal of discontinued operations for
such period;
(f) expenses incurred during such period with respect to any real
estate project abandoned by the Parent or any Subsidiary in such period;
(g) income tax expense in respect of such period;
(h) the Parent's Ownership Share of depreciation and amortization
expense and other non-cash charges of Unconsolidated Affiliates of the Parent
for such period; and
(i) the Parent's Ownership Share of interest expense of Unconsolidated
Affiliates of the Parent for such period.
"Effective Date" means the later of (a) the Agreement Date and (b) the
date on which all of the conditions precedent set forth in Section 5.1. shall
have been fulfilled or waived in accordance with the provisions of Section 12.6.
8
"Eligible Assignee" means any Person who is: (a) an existing Lender;
(b) a commercial bank, trust company, savings and loan association, savings
bank, insurance company, investment bank or pension fund organized under the
laws of the United States of America, any state thereof or the District of
Columbia, and having total assets in excess of $10,000,000,000; or (c) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Co-operation and Development, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such entity is not currently a
Lender, such entity's (or in the case of a bank which is a subsidiary, such
bank's parent's) senior unsecured long term indebtedness must be rated BBB or
higher by Standard & Poor's Rating Services (a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.), Baa2 or higher by ▇▇▇▇▇'▇ Investors Services, Inc. or the
equivalent or higher of either such rating by another rating agency acceptable
to the Agent.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Substances including, without limitation, the following: Clean Air Act, 42
U.S.C. ss. 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. ss. 1251
et seq.; ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ U.S.C. ss. 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. ss. 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Substances.
"Equity Interest" means, with respect to any Person, any share of
capital stock of (or other ownership or profit interests in) such Person, any
warrant, option or other right for the purchase or other acquisition from such
Person of any share of capital stock of (or other ownership or profit interests
in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or
warrant, right or option for the purchase or other acquisition from such Person
of such shares (or such other interests), and any other ownership or profit
interest in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, whether or not
certificated and whether or not such share, warrant, option, right or other
interest is authorized or otherwise existing on any date of determination.
"Equity Issuance" means any issuance or sale by a Person of any Equity
Interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Event of Default" means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Extension of Credit" means, with respect to a Person, any of the
following, whether secured or unsecured: (a) loans to such Person, including
without limitation, lines of credit and mortgage loans; (b) bonds, debentures,
notes and similar instruments issued by such Person; (c) reimbursement
obligations of such Person under or in respect of any letter of credit; and (d)
any of the foregoing of other Persons, the payment of which such Person
Guaranteed or is otherwise recourse to such Person.
9
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.5. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity, including without limitation, the Securities
and Exchange Commission, as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
"General Partner" means CBL Holdings I, Inc., a Delaware corporation,
and a Wholly Owned Subsidiary of the Parent and the sole general partner of
Borrower, and shall include the General Partner's successors and permitted
assigns
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any United States national, state or
local government, any political subdivision thereof or any other governmental,
quasi-governmental, judicial, public or statutory instrumentality, authority,
body, agency, bureau, commission, board, department or other entity (including,
without limitation, the Federal Deposit Insurance Corporation, the Comptroller
of the Currency or the Federal Reserve Board, any central bank or any comparable
authority) or any arbitrator with authority to bind a party at law.
"Gross Asset Value" means, at a given time, the sum (without
duplication) of the following:
(a) Adjusted Asset Value at such time;
(b) all cash and cash equivalents of the Parent and its Subsidiaries
determined on a consolidated basis as of the end of the fiscal quarter most
recently ended (excluding tenant deposits and other cash and cash equivalents
the disposition of which is restricted in any way (other than restrictions in
the nature of early withdrawal penalties));
(c) with respect to any Property which is under construction or the
development of which was completed during the fiscal quarter most recently
ended, the book value of construction in process as determined in accordance
with GAAP for all such Properties at such time (including without duplication
the Parent's Ownership Share of all construction in process of Unconsolidated
Affiliates of the Parent);
(d) the book value of all unimproved real property of the Parent and
its Subsidiaries determined on a consolidated basis;
10
(e) the purchase price paid by the Parent or any Subsidiary (less any
amounts paid to the Parent or such Subsidiary as a purchase price adjustment,
held in escrow, retained as a contingency reserve, or other similar
arrangements) as required to be disclosed in a consolidated balance sheet
(including the notes thereto) of the Parent for:
(i) any Property (other than a property under development)
acquired by the Parent or such Subsidiary during the Parent's fiscal
quarter most recently ended; and
(ii) any operating Property acquired in the immediately
preceding period of eighteen consecutive months for a purchase price
indicative of a capitalization rate of less than 8.25%; provided, that
if the Parent or a Subsidiary acquired such Property together with
other Properties or other assets and paid an aggregate purchase price
for such Properties and other assets, then the Parent shall allocate
the portion of the aggregate purchase price attributable to such
Property in a manner consistent with reasonable accounting practices;
provided further, in no event shall the aggregate value of such
operating Properties included in Gross Asset Value pursuant to this
clause (e)(ii) exceed $1,000,000,000.00;
(f) with respect to any purchase obligation, repurchase obligation or
forward commitment evidenced by a binding contract included when determining the
Total Liabilities of the Parent and its Subsidiaries, the reasonably determined
value of any amount that would be payable, or property that would be
transferable, to the Parent or any Subsidiary if such contract were terminated
as of such date; and
(g) to the extent not included in the immediately preceding clauses (a)
through (f), the value of any real property owned by a Subsidiary (that is not a
Wholly Owned Subsidiary) of the Borrower or an Unconsolidated Affiliate of the
Borrower (such Subsidiary or Unconsolidated Affiliate being a "JV") and which
property secures Recourse Indebtedness of such JV. For purposes of this clause
(g):
(x) the value of such real property shall be the lesser of (A)
the Permanent Loan Estimate applicable to such real property and (B)
the amount of Recourse Indebtedness secured by such real property;
(y) in no event shall the aggregate value of such real
property included in Gross Asset Value pursuant to this clause (g)
exceed $500,000,000.00; and
(z) the value of any such real property shall only be included
in Gross Asset Value if the organizational documents of such JV provide
that if, and to the extent, such Indebtedness is paid by the Borrower
or a Subsidiary of the Borrower or by resort to such real property,
then the Borrower or a Subsidiary of the Borrower shall automatically
acquire, without the necessity of any further payment or action, all
Equity Interests in such JV not owned by the Borrower or any
Subsidiary.
"Guarantor" means any Person that has executed, or is required to
execute, a Guaranty as a "Guarantor."
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any obligation
means and includes (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation. As the context requires, "Guaranty" shall also
mean the Parent Guaranty executed and delivered pursuant to Section 5.1.
11
"Hazardous Substances" means any pollutant, contaminant, hazardous,
toxic or dangerous waste, substance or material, or any other substance or
material regulated or controlled pursuant to any Environmental Law, including,
without limiting the generality of the foregoing, asbestos, PCBs, petroleum
products (including crude oil, natural gas, natural gas liquids, liquefied
natural gas or synthetic gas) or any other substance defined as a "hazardous
substance," "extremely hazardous waste," "restricted hazardous waste,"
"hazardous material," "hazardous chemical," "hazardous waste," "regulated
substance," "toxic chemical," "toxic substance" or other similar term in any
Environmental Law.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication):
(a) all obligations of such Person in respect of money borrowed;
(b) all obligations of such Person (other than trade debt incurred in
the ordinary course of business), whether or not for money borrowed:
(i) represented by notes payable, or drafts accepted, in each
case representing extensions of credit,
(ii) evidenced by bonds, debentures, notes or similar
instruments, or
(iii) constituting purchase money indebtedness, conditional
sales contracts, title retention debt instruments or other similar
instruments, upon which interest charges are customarily paid or that
are issued or assumed as full or partial payment for property;
(c) capitalized lease obligations of such Person;
(d) all reimbursement obligations of such Person under or in respect of
any letters of credit or acceptances (whether or not the same have been
presented for payment); and
(e) all Indebtedness of other Persons which (i) such Person has
Guaranteed or is otherwise recourse to such Person or (ii) is secured by a Lien
on any property of such Person.
"Interest Expense" means, with respect to a Person and for any period,
(a) the total interest expense (including, without limitation, interest
expense attributable to capitalized lease obligations) of such Person and in any
event shall include all letter of credit fees amortized as interest expense and
all interest expense with respect to any Indebtedness in respect of which such
Person is wholly or partially liable whether pursuant to any repayment, interest
carry, performance Guarantee or otherwise, plus
(b) to the extent not already included in the foregoing clause (a) such
Person's Ownership Share of all paid or accrued interest expense for such period
of Unconsolidated Affiliates of such Person.
Interest Expense allocable to minority interest in Subsidiaries of the
Borrower shall be excluded from Interest Expense of the Parent and its
Subsidiaries when determined on a consolidated basis.
"Interest Period" means with respect to any LIBOR Advance, each period
commencing on the date such LIBOR Advance is made or the last day of the next
preceding Interest Period for such Advance and ending on the numerically
corresponding day in the first, second, third, sixth or, if available, twelfth
calendar month thereafter, as the Borrower may select in a Notice of Borrowing,
Notice of Continuation or Notice of Conversion, as the case may be, except that
12
each such Interest Period that commences on the last Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. In addition to such periods, with the
prior consent of each Lender in each case, the Interest Period of a LIBOR
Advance may have a duration of less than one month; and
Notwithstanding the foregoing: (i) if any Interest Period would
otherwise end after the Termination Date, such Interest Period shall end on the
Termination Date; (ii) each Interest Period that would otherwise end on a day
which is not a Business Day shall end on the next Business Day (or, if such next
Business Day falls in the following calendar month, then on the prior Business
Day); and (iii) notwithstanding the immediately preceding clauses (i) and (ii),
without the prior consent of each Lender in each case, no Interest Period shall
have a duration of less than one month and, if the Interest Period for any
Advance would otherwise be a shorter period, such Advance shall not be available
hereunder for such period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, whether by
means of (a) the purchase or other acquisition of any Equity Interest in another
Person, (b) a loan, advance or extension of credit to, capital contribution to,
Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture
interest in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute the business or a division or operating unit of another Person. Any
commitment or option to make an Investment in any other Person shall constitute
an Investment. Except as expressly provided otherwise, for purposes of
determining compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Lender" means each financial institution from time to time party
hereto as a "Lender", together with its respective successors and permitted
assigns.
"Lending Office" means, for each Lender and for each Type of Advance,
the office of such Lender specified as such on its signature page hereto or in
the applicable Assignment and Assumption Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"Leverage Ratio" means, as of any date the same is calculated, the
ratio of (a) Total Liabilities of the Parent and its Subsidiaries as of the last
day of the fiscal quarter ending on or most recently ended prior to such date to
(b) Gross Asset Value of the Parent and its Subsidiaries as of the last day of
such fiscal quarter, determined in each case on a combined basis in accordance
with GAAP.
"LIBOR" means, for any LIBOR Advance for any Interest Period therefore,
the rate rounded upward to the nearest one-sixteenth (1/16th) of one percent
(0.0625%) quoted by the Lender then acting as Agent as the London Interbank
Offered Rate for deposits in U.S. Dollars as of 9:00 a.m. (San Francisco time)
two (2) Business Days prior to the first day of such Interest Period, in an
amount equal to the LIBOR Advance so requested and for a period equal to such
Interest Period. Each determination of LIBOR by the Lender then acting as Agent
shall, in the absence of manifest error, be conclusive and binding.
"LIBOR Advance" means an Advance bearing interest at a rate based on
LIBOR.
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"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment
of leases and rents, pledge, lien, charge or lease constituting a capitalized
lease obligation, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) any arrangement,
express or implied, under which any property of such Person is transferred,
sequestered or otherwise identified for the purpose of subjecting the same to
the payment of Indebtedness or performance of any other obligation in priority
to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the UCC or its equivalent in any
jurisdiction; and (d) any agreement by such Person to grant, give or otherwise
convey any of the foregoing.
"Loan" means the aggregate principal amount of outstanding Advances.
"Loan Document" means this Agreement, each Note, each Guaranty and each
other document or instrument now or hereafter executed and delivered by a Loan
Party or the Parent in connection with, pursuant to or relating to this
Agreement.
"Loan Party" means the Borrower, each Guarantor, the General Partner
and each other Person who guarantees all or a portion of the Obligations.
"Management Company" means CBL & Associates Management, Inc., a
Delaware corporation, or any other Person that succeeds to the obligations of
CBL & Associates Management, Inc. to manage the Properties, together with its
successors and permitted assigns.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, or results of operations of
the Borrower and its Subsidiaries, or the Parent and its Subsidiaries, in either
case taken as a whole, (b) the ability of the Borrower, any other Loan Party or
the Parent to perform its obligations under any Loan Document to which it is a
party, (c) the validity or enforceability of any of the Loan Documents, (d) the
rights and remedies of the Lenders and the Agent under any of the Loan Documents
or (e) the timely payment of the principal of or interest on the Advances or
other amounts payable in connection therewith.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
similar security instrument made by a Person owning an interest in real property
granting a Lien on such interest in real property as security for the payment of
Indebtedness of such Person or another Person.
"Net Operating Income" means, for any real property and for the period
of twelve consecutive calendar months most recently ending, the sum of the
following (without duplication):
(a) rents and all other revenues received in the ordinary course from
such Property (including proceeds of rent loss insurance but excluding pre-paid
rents and revenues and security deposits except to the extent applied in
satisfaction of tenants' obligations for rent); minus
(b) all expenses paid related to the ownership, operation or
maintenance of such Property, including without limitation, taxes and
assessments, insurance, utilities, payroll costs, maintenance, repair and
landscaping expenses, marketing expenses; minus
(c) an amount equal to (i) the aggregate square footage of all owned
space of such Property times (ii) $0.20; minus
(d) an imputed management fee in the amount of three percent (3.0%) of
the aggregate base rents and percentage rents received for such Property for
such period.
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"Net Proceeds" means with respect to an Equity Issuance by a Person,
the aggregate amount of all cash received by such Person in respect of such
Equity Issuance net of investment banking fees, legal fees, accountants fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred by such Person in connection with such Equity Issuance.
"Nonrecourse Indebtedness" means, with respect to a Person, an
Extension of Credit or other Indebtedness in respect of which recourse for
payment (except for customary exceptions for fraud, misapplication of funds,
environmental indemnities, and other similar customary exceptions to recourse
liability) is contractually limited to specific assets of such Person encumbered
by a Lien securing such Extension of Credit or other Indebtedness.
"Note" means a promissory note of the Borrower substantially in the
form of Exhibit B, payable to the order of a Lender in a principal amount equal
to the amount of such Lender's Commitment as originally in effect and otherwise
duly completed.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit C to be delivered to the Agent pursuant to Section 2.1.(b) evidencing
the Borrower's request for a borrowing of Advances.
"Notice of Continuation" means a notice substantially in the form of
Exhibit D to be delivered to the Agent pursuant to Section 2.7.(a) evidencing
the Borrower's request for the Continuation of a LIBOR Advance.
"Notice of Conversion" means a notice substantially in the form of
Exhibit E to be delivered to the Agent pursuant to Section 2.7.(b) evidencing
the Borrower's request for the Conversion of an Advance from one Type to another
Type.
"Obligations" means, individually and collectively, without
duplication: (a) the aggregate principal balance of, and all accrued and unpaid
interest on, all Advances; and (b) all other indebtedness, liabilities,
obligations, covenants and duties of the Borrower or any of the other Loan
Parties owing to the Agent or any Lender of every kind, nature and description,
under or in respect of this Agreement or any of the other Loan Documents,
including, without limitation, the Fees and indemnification obligations, whether
direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any
promissory note.
"Off-Balance Sheet Liabilities" means liabilities and obligations of
the Parent, the Borrower, any Subsidiary or any other Person in respect of
"off-balance sheet arrangements" (as defined in the SEC Off-Balance Sheet Rules)
which the Parent would be required to disclose in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations" section of the
Parent's report on Form 10-Q or Form 10-K (or their equivalents) which the
Parent would be required to file with the Securities and Exchange Commission (or
any Governmental Authority substituted therefore). As used in this definition,
the term "SEC Off-Balance Sheet Rules" means the Disclosure in Management's
Discussion and Analysis About Off-Balance Sheet Arrangements, Securities Act
Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (to be codified at 17 CFR
pts. 228, 229 and 249).
"Ownership Share" means, with respect to any Subsidiary of a Person
(other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a
Person, the greater of (a) such Person's relative nominal direct and indirect
ownership interest (expressed as a percentage) in such Subsidiary or
Unconsolidated Affiliate or (b) subject to compliance with Section 8.4.(f), such
Person's relative direct and indirect economic interest (calculated as a
percentage) in such Subsidiary or Unconsolidated Affiliate determined in
accordance with the applicable provisions of the declaration of trust, articles
or certificate of incorporation, articles of organization, partnership
agreement, joint venture agreement or other applicable organizational document
of such Subsidiary or Unconsolidated Affiliate.
15
"Parent" has the meaning set forth in the introductory paragraph hereof
and shall include the Parent's successors and permitted assigns.
"Parent Guaranty" means the Parent Guaranty executed and delivered by
the Parent in favor of the Agent and the Lenders and substantially in the form
of Exhibit F.
"Participant" has the meaning given that term in Section 12.5.(b).
"Permanent Loan Estimate" means, as of any date of determination and
with respect to any Property, an amount equal to (a) the Net Operating Income of
such Property divided by (b) the product of (i) 1.25 and (ii) the mortgage
constant for a 25-year loan bearing interest at a per annum rate equal to the
average rate published in the United States Federal Reserve Statistical Release
(H.15) for 10-year Treasury Constant Maturities during the previous four fiscal
quarters plus 1.5%.
"Permitted Deficiency" has the meaning given that term in Section 10.4.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by the Lender then acting as Agent at its principal office as
its "prime rate" (which rate of interest may not be the lowest rate charged by
▇▇▇▇▇ Fargo Bank, National Association or any of the other Lenders on similar
loans).
"Principal Office" means ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office as the Agent may notify the Borrower.
"Principals" means (a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇, ▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇▇▇, ▇▇., (b) any of
such individual's immediate family members consisting of his spouse and his
lineal descendants (whether natural or adopted), (c) a trust, partnership or
other similar entity of which any of the Persons identified in either of the
immediately preceding clauses (a) or (b) are the sole beneficiaries of all of
the interest therein, and (d) any Subsidiary of any of the Persons identified in
any of the immediately preceding clauses (a) through (c), so long as any of the
individuals identified in the immediately preceding clause (a) owns or controls
at least 10% of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, partnership or
other entity (without regard to the occurrence of any contingency).
"Property" means a parcel (or group of related parcels) of real
property owned by Parent, Borrower, or any Subsidiary or Affiliate of Parent or
Borrower.
"Recourse Indebtedness" means any Indebtedness other than Nonrecourse
Indebtedness.
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
16
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders having at least
66-2/3% of the aggregate amount of the Commitments, or, if the Commitments have
been terminated or reduced to zero, such Lenders holding at least 66-2/3% of the
principal amount of the Advances; provided however, Requisite Lenders must
always include at least two (2) Lenders.
"Restricted Payment" means any of the following:
(a) any dividend or other distribution, direct or indirect, on account
of any shares of any class of stock or other Equity Interest of the Parent or
any of its Subsidiaries now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock or other Equity Interest to the holders
of that class;
(b) any redemption, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock or other Equity Interest of the Parent or any
of its Subsidiaries now or hereafter outstanding;
(c) any payment or prepayment of principal of, premium, if any, or
interest on, redemption, conversion, exchange, purchase, retirement, defeasance,
sinking fund or similar payment with respect to, any Subordinated Debt; and
(d) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
stock or other Equity Interest of the Parent or any of its Subsidiaries now or
hereafter outstanding.
"Secured Indebtedness" means, as to any Person, any Indebtedness of
such Person which is secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"Senior Officer" means the Chairman, Vice Chairman, President, an
Executive Vice President, Senior Vice President - Finance, Senior Vice President
- Accounting, Controller and the chief financial officer of the Borrower or the
Parent.
"Significant Subsidiary" means any Subsidiary which has assets having
an aggregate book value in excess of 10.0% of Gross Asset Value at any time.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its Total Liabilities (including all contingent liabilities); (b) such Person
is able to pay its debts or other obligations in the ordinary course as they
mature; and (c) such Person has capital not unreasonably small to carry on its
business and all business in which it proposes to be engaged.
"Subordinated Debt" means Indebtedness for money borrowed of the
Borrower or any of its Subsidiaries that is subordinated in right of payment and
otherwise to the Advances and the other Obligations in a manner satisfactory to
the Agent in its sole and absolute discretion.
"Subsidiary" means, for any Person, any corporation, partnership,
limited liability company or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
17
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(without regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
"Tangible Net Worth" means, as of a given date, the stockholders'
equity of the Parent and its Subsidiaries determined on a consolidated basis
plus (x) increases in accumulated depreciation accrued after September 30, 2002
and (y) minority interests in the Borrower minus (to the extent reflected in
determining stockholders' equity of the Parent and its Subsidiaries): (a) the
amount of any write-up in the book value of any assets contained in any balance
sheet resulting from revaluation thereof or any write-up in excess of the cost
of such assets acquired, and (b) all amounts appearing on the assets side of any
such balance sheet for assets which would be classified as intangible assets
under GAAP, all determined on a consolidated basis.
"Taxes" has the meaning given that term in Section 3.9.
"Termination Date" means August 27, 2006, or such later date to which
such date may be extended in accordance with Section 2.11.
"Total Liabilities" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on a consolidated balance sheet of such Person as of such date, and in
any event shall include (without duplication and whether or not a liability
under GAAP) all of the following:
(a) all letters of credit of such Person;
(b) all purchase and repurchase obligations and forward commitments
evidenced by binding contracts, including forward equity commitments and
contracts to purchase real property, reasonably determined to be owing under any
such contract assuming such contract were terminated as of such date;
(c) all quantifiable contingent obligations of such Person including,
without limitation, all Guarantees of Indebtedness by such Person and exposure
under swap agreements;
(d) all Off Balance Sheet Liabilities of such Person and the Ownership
Share of the Off Balance Sheet Liabilities of Unconsolidated Affiliates of such
Person;
(e) all Indebtedness of Subsidiaries of such Person, provided that
Indebtedness of a Subsidiary that is not a Wholly Owned Subsidiary shall be
included in Total Liabilities only to the extent of the Borrower's Ownership
Share of such Subsidiary (unless the Borrower or a Wholly Owned Subsidiary of
the Borrower is otherwise obligated in respect of such Indebtedness); and
(f) such Person's Ownership Share of the Indebtedness of any
Unconsolidated Affiliate of such Person.
For purposes of this definition:
(1) Total Liabilities shall not include Indebtedness with respect to
letters of credit if, and to the extent, such letters of credit are issued
(i) to secure obligations to municipalities to perform work in
connection with construction of projects, such exclusion under this
clause (i) to be to the extent there are reserves for such obligations
under the construction loan for the applicable project;
(ii) in support of permanent loan commitments, in lieu of a
deposit;
18
(iii) as a credit enhancement for Indebtedness incurred by any
Subsidiary of Borrower, but only to the extent such Indebtedness is
already included in Total Liabilities; or
(iv) as a credit enhancement for Indebtedness incurred by a
Person which is not an Affiliate of Borrower, such exclusion under this
clause (iv) to be to the extent of the value of any collateral provided
by such Person to secure such letter of credit.
(2) obligations under short-term repurchase agreements entered into as
part of a cash management program shall not be included as Total Liabilities.
(3) All items included in the line item "Accounts Payable and Accrued
Liabilities" under the category of "Liabilities and Shareholder's Equity" in the
Consolidated Balance Sheets included in Parent's Form 10-Q or Form 10-K (or
their equivalent) filed with the Securities and Exchange Commission (or any
Governmental Authority substituted therefore) shall not be included as Total
Liabilities.
"Type" with respect to any Advance, refers to whether such Advance is a
LIBOR Advance or Base Rate Advance.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"Unconsolidated Affiliate" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.
"Unsecured Indebtedness" shall mean, as to any Person, any Indebtedness
of such Person which is not secured by a Lien, but excluding trade payables.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association, and its
successors and permitted assigns.
"Wholly Owned Subsidiary" means any Subsidiary of a Person in respect
of which all of the equity securities or other ownership interests (other than,
in the case of a corporation, directors' qualifying shares) are at the time
directly or indirectly owned or controlled by such Person or one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries
of such Person.
Section 1.2. General; References to San Francisco Time.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP in
effect as of the Agreement Date. References in this Agreement to "Sections",
"Articles", "Exhibits" and "Schedules" are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. references in this
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated or otherwise modified from time to time to the extent permitted hereby
and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the
singular and plural, and pronouns stated in the masculine, feminine or neuter
gender shall include the masculine, the feminine and the neuter. Unless
explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of the Parent or the Borrower (or a Subsidiary of such Subsidiary)
and a reference to an "Affiliate" means a reference to an Affiliate of the
Borrower or the Parent. Titles and captions of Articles, Sections, subsections
and clauses in this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement. Unless otherwise indicated, all
references to time are references to San Francisco, California time.
19
ARTICLE II. CREDIT FACILITY
Section 2.1. Advances.
(a) Making of Advances. Subject to the terms and conditions set forth
in this Agreement, including without limitation, Section 2.12. below, each
Lender severally and not jointly agrees to make Advances to the Borrower during
the period from and including the Effective Date to but excluding the
Termination Date, in an aggregate principal amount at any one time outstanding
up to, but not exceeding, the amount of such Lender's Commitment. Each borrowing
of Advances shall be in an aggregate principal amount of $100,000 and integral
multiples of $1,000 in excess of that amount (except that any borrowing of
Advances may be in the aggregate amount of the unused Commitments). Within the
foregoing limits and subject to the terms and conditions of this Agreement, the
Borrower may borrow, repay and reborrow Advances.
(b) Requests for Advances. Not later than 10:00 a.m. San Francisco time
at least 1 Business Day prior to a borrowing of Base Rate Advances and not later
than 10:00 a.m. San Francisco time at least 3 Business Days prior to a borrowing
of LIBOR Advances, the Borrower shall deliver to the Agent a Notice of
Borrowing. Each Notice of Borrowing shall specify the aggregate principal amount
of the Advances to be borrowed, the date such Advances are to be borrowed (which
must be a Business Day), the Type of the requested Advances, and if such
Advances are to be LIBOR Advances, the initial Interest Period for such
Advances. If the Borrower fails to indicate the Type of Advances being borrowed
in a Notice of Borrowing, then the Borrower shall be deemed to have requested a
borrowing of LIBOR Advances having an Interest Period of one month. Prior to
delivering a Notice of Borrowing, the Borrower may request that the Agent
provide the Borrower with a current quote of LIBOR. The Agent shall provide such
quoted rate to the Borrower on the date of such request or as soon as possible
thereafter.
(c) Funding of Advances. Promptly after receipt of a Notice of
Borrowing under the immediately preceding subsection (b), the Agent shall notify
each Lender by telex or telecopy, or other similar form of transmission, of the
proposed borrowing. Each Lender shall deposit an amount equal to the Advance to
be made by such Lender to the Borrower with the Agent at the Principal Office,
in immediately available funds not later than 9:00 a.m. San Francisco time on
the date of such proposed Advances. Subject to fulfillment of all applicable
conditions set forth herein, the Agent shall make available to the Borrower at
the Principal Office, not later than 11:00 a.m. San Francisco time on the date
of the requested borrowing of Advances, the proceeds of such amounts received by
the Agent.
(d) Assumptions Regarding Funding by Lenders. With respect to Advances
to be made after the Effective Date, unless the Agent shall have been notified
by any Lender that such Lender will not make available to the Agent an Advance
to be made by such Lender, the Agent may assume that such Lender will make the
proceeds of such Advance available to the Agent in accordance with this Section
and the Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower the amount of such Advance to be
provided by such Lender.
Section 2.2. Rates and Payment of Interest on Advances
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(a) Rates. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Advance made by such
Lender for the period from and including the date of the making of such Advance
to but excluding the date such Advance shall be paid in full, at the following
per annum rates:
(i) during such periods as such Advance is a Base Rate
Advance, at the Base Rate (as in effect from time to time); and
(ii) during such periods as such Advance is a LIBOR Advance,
at LIBOR for such Advance for the Interest Period therefore, plus the
Applicable LIBOR Margin Rate. Each change in the Applicable LIBOR
Margin Rate shall become effective as of the first day of the quarter
in which such Compliance Certificate required to be delivered pursuant
to Section 8.3 is due. By way of illustration, for a Compliance
Certificate delivered on August 15, relating to the quarter ending June
30, the applicable LIBOR Margin Rate based on the Leverage Ratio set
forth in said Compliance Certificate shall become effective on July 1.
Prior to the delivery of the Compliance Certificate, and any resulting
change in the Applicable LIBOR Margin Rate, Borrower shall continue to
pay interest based on the Applicable LIBOR Margin Rate in effect in the
immediately preceding quarter (or as specified in the proviso in the
definition of Applicable LIBOR Margin Rate, if Borrower fails to
deliver the Compliance Certificate prior to the expiration of the
ten-day cure period specified therein), and any overpayment or
underpayment of interest shall be reconciled on the first interest
payment date following delivery of such Compliance Certificate.
Notwithstanding the foregoing, while any Event of Default shall exist,
the Borrower shall, upon and after the Agent's demand, pay to the Agent for the
account of each Lender interest at the Default Rate on the outstanding principal
amount of any Advance made by such Lender and on any other amount payable by the
Borrower hereunder or under the Notes held by such Lender to or for the account
of such Lender (including without limitation, accrued but unpaid interest to the
extent permitted under Applicable Law).
(b) Payment of Interest. All accrued and unpaid interest on the
outstanding principal amount of each Advance shall be payable (i) monthly in
arrears on the first day of each month, commencing with the first full calendar
month occurring after the Effective Date and (ii) on any date on which the
principal balance of such Advance is due and payable in full (whether at
maturity, due to acceleration or otherwise). Interest payable at the Default
Rate shall be payable from time to time on demand. All determinations by the
Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.
Section 2.3. Number of Interest Periods.
Notwithstanding anything to the contrary contained in this Agreement,
there may be no more than 8 different Interest Periods outstanding at the same
time.
Section 2.4. Repayment of Advances.
The Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Advances on the Termination Date.
Section 2.5. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrower may prepay any
Advance at any time without premium or penalty. The Borrower shall give the
Agent at least 3 Business Days prior notice of the prepayment of any Advance.
Each voluntary prepayment of Advances shall be in an aggregate minimum amount of
$100,000 and integral multiples of $1,000 in excess thereof.
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(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Advances exceeds the aggregate amount of the Commitments, the
Borrower shall no later than 2 days following the Agent's demand, pay to the
Agent for the account of the Lenders, the amount of such excess.
All payments under this subsection (b) shall be applied to pay all
amounts of excess principal outstanding on the applicable Advances in accordance
with Section 3.2., and the remainder, if any, shall be paid to the Borrower or
whomever else may be legally entitled to such remainder.
Section 2.6. Late Charges.
So long as the Default Rate is not payable with respect to the
Obligations as provided in Section 2.2., if any payment required under this
Agreement is not paid within 15 days after it becomes due and payable, the
Borrower shall pay a late charge for late payment to compensate the Lenders for
the loss of use of funds and for the expenses of handling the delinquent
payment, in an amount equal to three percent (3.0%) of such delinquent payment.
Such late charge shall be paid in any event not later than the due date of the
next subsequent installment of principal and/or interest. In the event the
maturity of the Obligations hereunder occurs or is accelerated pursuant to
Section 10.2., this Section shall apply only to payments overdue prior to the
time of such acceleration. This Section shall not be deemed to be a waiver of
the Lenders' right to accelerate payment of any of the Obligations as permitted
under the terms of this Agreement.
Section 2.7. Provisions Applicable to LIBOR Advances; Limitation on Base
Rate Advances.
(a) Continuation of LIBOR Advances. Subject to the other terms and
conditions of this Agreement, including without limitation, the immediately
following subsection (c), the Borrower may on any Business Day, with respect to
any LIBOR Advance, elect to maintain such LIBOR Advance or any portion thereof
as a LIBOR Advance by selecting a new Interest Period for such LIBOR Advance.
Each new Interest Period selected under this Section shall commence on the last
day of the immediately preceding Interest Period. Each selection of a new
Interest Period shall be made by the Borrower giving to the Agent a Notice of
Continuation not later than 10:00 a.m. San Francisco time on the third Business
Day prior to the date of any such Continuation. Such notice by the Borrower of a
Continuation shall be in the form of a Notice of Continuation, specifying (i)
the proposed date of such Continuation, (ii) the LIBOR Advance and portion
thereof subject to such Continuation and (iii) the duration of the selected
Interest Period, all of which shall be specified in such manner as is necessary
to comply with all limitations on Advances outstanding hereunder. Each
Continuation of LIBOR Advances shall be in an aggregate minimum amount of
$100,000 and integral multiples of $1,000 in excess thereof. Promptly after
receipt of a Notice of Continuation, the Agent shall notify each Lender of the
proposed Continuation. If the Borrower shall fail to select in a timely manner a
new Interest Period for any LIBOR Advance in accordance with this Section, such
Advance will automatically, on the last day of the current Interest Period
therefore, Continue as a LIBOR Advance having an Interest Period of one month.
(b) Conversion of LIBOR Advances. Subject to the other terms and
conditions of this Agreement, including without limitation, the immediately
following subsection (c), the Borrower may on any Business Day, upon the
Borrower's giving of a Notice of Conversion to the Agent, Convert all or a
portion of an Advance of one Type into an Advance of another Type. Any
Conversion of a LIBOR Advance into a Base Rate Advance shall be made on, and
only on, the last day of an Interest Period for such LIBOR Advance. Each such
Notice of Conversion shall be given not later than 10:00 a.m. San Francisco time
one Business Day prior to the date of any proposed Conversion into Base Rate
22
Advances and three Business Days prior to the date of any proposed Conversion
into LIBOR Advances. Promptly after receipt of a Notice of Conversion, the Agent
shall notify each Lender of the proposed Conversion. Subject to the restrictions
specified above, each Notice of Conversion shall be in the form of a Notice of
Conversion specifying (a) the requested date of such Conversion, (b) the Type of
Advance to be Converted, (c) the portion of such Type of Advance to be
Converted, (d) the Type of Advance such Advance is to be Converted into and (e)
if such Conversion is into a LIBOR Advance, the requested duration of the
Interest Period of such Advance. Each Conversion of Base Rate Advances into
LIBOR Advances shall be in an aggregate minimum amount of $100,000 and integral
multiples of $1,000 in excess thereof.
(c) Conditions to Conversion and Continuation. The effectiveness of (i)
the Continuation of a LIBOR Advance and (ii) the conversion of a Base Rate
Advance into a LIBOR Advance, is subject to the condition that:
(x) none of the following exists as of the date of such
Continuation or Conversion and none would exist immediately after
giving effect thereto: (A) any Default under subsection (a), (b)(i),
(e) or (f) of Section 10.1., (B) any other Default as to which the
Agent has given the Borrower notice and (C) an Event of Default; and
(y) such Continuation or Conversion is not otherwise
prohibited under this Agreement.
(d) Limitation on Interest Period Duration During Default.
Notwithstanding anything to the contrary contained in this Agreement, no LIBOR
Advance that may otherwise be made hereunder shall have an Interest Period
longer than one month if any Default exists.
(e) Limitation on Base Rate Advances. Notwithstanding anything to the
contrary contained in this Agreement, the Borrower may only request Base Rate
Advances, or Convert LIBOR Advances into Base Rate Advances, under the following
circumstances:
(i) if the Borrower has requested a borrowing of LIBOR
Advances having an Interest Period of less than one month and at least
one Lender did not consent to such Interest Period, then the Borrower
may request that such borrowing of Advances be Base Rate Advances;
provided, however, that the Borrower shall repay such Base Rate
Advances in full no later than 7 calendar days after such Advances have
been made; and
(ii) if the obligation of any Lender to make LIBOR Advances or
to Continue, or to Convert Base Rate Advances into, LIBOR Advances
shall be suspended pursuant to Section 4.2. or Section 4.3., then
Borrower may borrow Base Rate Advances as provided in Section 4.5.
Section 2.8. Notes.
The Advances made by each Lender shall, in addition to this Agreement,
also be evidenced by a promissory note of the Borrower substantially in the form
of Exhibit B (each a "Note"), payable to the order of such Lender in a principal
amount equal to the amount of its Commitment as originally in effect and
otherwise duly completed.
Section 2.9. Voluntary Reductions of the Commitment.
The Borrower may terminate or reduce the unused amount of the
Commitments at any time and from time to time without penalty or premium upon
not less than 5 Business Days prior notice to the Agent of each such reduction
or termination, which notice shall specify the effective date thereof and, in
the case of a reduction, the amount of such reduction (which shall not be less
than $5,000,000 and integral multiples of $1,000,000 in excess of that amount in
the aggregate) and shall be effective only upon receipt by the Agent; provided
23
however, in no event may Borrower reduce the Commitments to an aggregate amount
of less than $100,000,000 unless the Borrower is terminating the Commitments in
full. Promptly after receipt of any such notice the Agent shall notify each
Lender of the proposed termination or Commitment reduction. The Commitments,
once reduced or terminated pursuant to this Section, may not be increased or
reinstated. The Borrower shall pay all interest and fees, on the Advances
accrued to the date of such reduction or termination of the Commitments to the
Agent for the account of the Lenders, including but not limited to any
applicable compensation due to each Lender in accordance with Section 4.4. of
this Agreement.
Section 2.10. Increase in Commitments.
The Borrower shall have the right to request increases in the aggregate
amount of the Commitments by providing written notice to the Agent at least
fifteen (15) days, prior to the initial Termination Date; provided, however,
that after giving effect to any such increases the aggregate amount of the
Commitments shall not exceed $500,000,000. Each such increase in the Commitments
must be an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof. The Agent shall promptly notify each Lender of any
such request. No Lender shall be obligated in any way whatsoever to increase its
Commitment. In the event any Lender notifies Agent that it will not increase its
Commitment, Agent will give Borrower notice thereof within five (5) business
days after receipt of such notification from such Lender. If a new Lender
becomes a party to this Agreement, or if any existing Lender agrees to increase
its Commitment, such Lender shall on the date it becomes a Lender hereunder (or
in the case of an existing Lender, increases its Commitment) (and as a condition
thereto) purchase from the other Lenders its Commitment Percentage (determined
with respect to the Lenders' relative Commitments and after giving effect to the
increase of Commitments) of any outstanding Advances, by making available to the
Agent for the account of such other Lenders, in same day funds, an amount equal
to the sum of (A) the portion of the outstanding principal amount of such
Advances to be purchased by such Lender plus (B) interest accrued and unpaid to
and as of such date on such portion of the outstanding principal amount of such
Advances. The Borrower shall pay to the Lenders amounts payable, if any, to such
Lenders under Section 4.4. as a result of the prepayment of any such Advances.
No increase of the Commitments may be effected under this Section (x) unless no
Default or Event of Default is in existence on the effective date of such
increase, (y) unless the Borrower can demonstrate to the reasonable satisfaction
of the Agent that, after giving effect to such increase, the Borrower will be in
compliance with Section 9.1. and (z) if any representation or warranty made or
deemed made by the Borrower, any other Loan Party or the Parent, in any Loan
Document to which such Person is a party is not (or would not be) materially
true or correct on the effective date of such increase except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted hereunder. In connection with
any increase in the aggregate amount of the Commitments pursuant to this Section
(a) any Lender becoming a party hereto shall execute such documents and
agreements as the Agent may reasonably request, and (b) the Agent shall make
appropriate arrangements so that the Borrower executes and delivers (which the
Borrower agrees to do) a new or replacement Note, as appropriate, in favor of
each new Lender, and any existing Lender increasing its Commitment, in the
amount of such Lender's Commitment at the time of the effectiveness of the
applicable increase in the aggregate amount of Commitments.
Section 2.11. Extension of Termination Date.
The Borrower may request that the Agent and the Lenders extend the
current Termination Date by up to three (3) periods of one (1) year each by
executing and delivering to the Agent at least ninety (90) days but not more
than one hundred eighty (180) days prior to the then-current Termination Date, a
written request for such extension. The Agent shall forward to each Lender a
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copy of such request delivered to the Agent promptly upon receipt thereof.
Subject to satisfaction of the following conditions, the Termination Date shall
be extended for such one-year period: (a) immediately prior to such extension
and immediately after giving effect thereto, no Default or Event of Default
shall or would exist and (b) the Borrower shall have paid the Fees payable under
Section 3.5.(c). The Termination Date may be extended only three (3) times
pursuant to this subsection.
Section 2.12. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, no Lender shall be required to make any Advance if immediately after
the making of such Advance the aggregate principal amount of all outstanding
Advances would exceed the aggregate amount of the Commitments.
Section 2.13. Authorized Representatives.
Agent is authorized to rely upon the continuing authority of the
persons, officers, signatories or agents hereafter designated ("Authorized
Representatives") to bind Borrower with respect to all matters pertaining to
establishment of the Loan and the Loan Documents including, but not limited to,
requests for Advances and the selection of interest rates. Such authorization
may be changed only upon written notice to Agent accompanied by evidence,
reasonably satisfactory to Agent, of the authority of the person giving such
notice. The present Authorized Representatives are listed on Schedule 2.13.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS.
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement, the Notes or any other Loan Document shall be made in Dollars, in
immediately available funds, without setoff, deduction or counterclaim, to the
Agent at the Principal Office, not later than 11:00 a.m. San Francisco time on
the date on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next succeeding
Business Day). Subject to Section 10.6., the Borrower shall, at the time of
making each payment under this Agreement or any other Loan Document, specify to
the Agent the amounts payable by the Borrower hereunder to which such payment is
to be applied. Each payment received by the Agent for the account of a Lender
under this Agreement or any Note shall be paid to such Lender by wire transfer
of immediately available funds in accordance with the wiring instructions
provided by such Lender to the Agent from time to time, for the account of such
Lender at the applicable Lending Office of such Lender. In the event the Agent
fails to pay such amounts to such Lender within one Business Day of receipt of
such amounts, the Agent shall pay interest on such amount at a rate per annum
equal to the Federal Funds Rate from time to time in effect. If the due date of
any payment under this Agreement or any other Loan Document would otherwise fall
on a day which is not a Business Day such date shall be extended to the next
succeeding Business Day and interest shall continue to accrue at the rate, if
any, applicable to such payment for the period of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
Lenders under Section 2.1. shall be made from the Lenders, each payment of the
fees under Sections 3.5.(b) and (c) shall be made for the account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.9. shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
each payment or prepayment of principal of Advances by the Borrower shall be
made for the account of the Lenders pro rata in accordance with the respective
unpaid principal amounts of the Advances held by them, provided that if
25
immediately prior to giving effect to any such payment in respect of any
Advances the outstanding principal amount of the Advances shall not be held by
the Lenders pro rata in accordance with their respective Commitments in effect
at the time such Advances were made, then such payment shall be applied to the
Advances in such manner as shall result, as nearly as is practicable, in the
outstanding principal amount of the Advances being held by the Lenders pro rata
in accordance with their respective Commitments; (c) each payment of interest on
Advances by the Borrower shall be made for the account of the Lenders pro rata
in accordance with the amounts of interest on such Advances then due and payable
to the respective Lenders; and (d) the Conversion and Continuation of Advances
of a particular Type (other than Conversions provided for by Section 4.5.) shall
be made pro rata among the Lenders according to the amounts of their respective
Advances and the then current Interest Period for each Lender's portion of each
Advance of such Type shall be coterminous.
Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on,
any Advance under this Agreement or shall obtain payment on any other Obligation
owing by the Borrower or any other Loan Party through the exercise of any right
of set-off, banker's lien or counterclaim or similar right or otherwise or
through voluntary prepayments directly to a Lender or other payments made by the
Borrower or any other Loan Party to a Lender not in accordance with the terms of
this Agreement and such payment should be distributed to the Lenders in
accordance with Section 3.2. or Section 10.6., such Lender shall promptly
purchase from such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Advances made by the other
Lenders or other Obligations owed to such other Lenders in such amounts, and
make such other adjustments from time to time as shall be equitable, to the end
that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may actually be incurred by such Lender in obtaining
or preserving such benefit) in accordance with the requirements of Section 3.2.
or Section 10.6., as applicable. To such end, all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Borrower agrees that any Lender so purchasing a participation (or direct
interest) in the Advances or other Obligations owed to such other Lenders may,
subject to the limitations of Section 12.3., exercise all rights of set-off,
banker's lien, counterclaim or similar rights with the respect to such
participation as fully as if such Lender were a direct holder of Advances in the
amount of such participation. Nothing contained herein shall require any Lender
to exercise any such right or shall affect the right of any Lender to exercise
and retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make an Advance or to perform any other obligation to be made or performed by
such other Lender hereunder, and the failure of any Lender to make an Advance or
to perform any other obligation to be made or performed by it hereunder shall
not relieve the obligation of any other Lender to make any Advance or to perform
any other obligation to be made or performed by such other Lender.
Section 3.5. Fees.
(a) Closing Fees. On the Effective Date, the Borrower agrees to pay to
the Agent and each Lender all loan fees as have been agreed to in writing by the
Borrower and the Agent or each Lender, as applicable.
(b) Facility Fee. Borrower agrees to pay to the Agent, for the benefit
of the Lenders, a Facility Fee for each calendar quarter, or portion thereof,
during which any of the Commitments are in effect, during the period commencing
on the date hereof and continuing to the Termination Date equal to the average
daily Commitments during such quarter times one-tenth of one percent (0.10%)
(i.e. ten (10) basis points) per annum. Such Facility Fee shall be payable
26
quarterly in arrears, and shall be payable on the date which is fifteen (15)
days after the end of the applicable calendar quarter; provided however, the
final Facility Fee shall be due and payable on the Termination Date. Borrower
acknowledges that the Facility Fee payable hereunder is a bona fide commitment
fee and is intended as reasonable compensation to Lenders for committing to make
funds available to Borrower as described herein and for no other purposes.
(c) Extension Fee. If, pursuant to Section 2.11., the Borrower
exercises its right to extend the Termination Date, the Borrower agrees to pay
to the Agent for the account of each Lender an extension fee equal to two tenths
of one percent (0.20%) (i.e. twenty (20) basis points) of the amount of such
Lender's Commitment on the Termination Date being extended. Such fee shall be
paid to the Agent prior to, and as a condition to, each such extension.
(d) Administrative and Other Fees. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing from
time to time.
Section 3.6. Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Advance, any Fees or other Obligations due hereunder shall be computed on
the basis of a year of 360 days and the actual number of days elapsed.
Section 3.7. Usury.
In no event shall the amount of interest due or payable on the Advances
or other Obligations exceed the maximum rate of interest allowed by Applicable
Law and, if any such payment is paid by the Borrower or received by any Lender,
then such excess sum shall be credited as a payment of principal, unless the
Borrower shall notify the respective Lender in writing that the Borrower elects
to have such excess sum returned to it forthwith. It is the express intent of
the parties hereto that the Borrower not pay and the Lenders not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrower under Applicable Law. The parties
hereto hereby agree and stipulate that the only charge imposed upon the Borrower
for the use of money in connection with this Agreement is and shall be the
interest specifically described in Section 2.2.(a)(i) and (ii). Notwithstanding
the foregoing, the parties hereto further agree and stipulate that all agency
fees, syndication fees, facility fees, letter of credit fees, underwriting fees,
default charges, late charges, funding or "breakage" charges, increased cost
charges, attorneys' fees and reimbursement for costs and expenses paid by the
Agent or any Lender to third parties or for damages incurred by the Agent or any
Lender, are charges made to compensate the Agent or any such Lender for
underwriting or administrative services and costs or losses performed or
incurred, and to be performed or incurred, by the Agent and the Lenders in
connection with this Agreement and shall under no circumstances be deemed to be
charges for the use of money. All charges other than charges for the use of
money shall be fully earned and nonrefundable when due.
Section 3.8. Defaulting Lenders.
If for any reason any Lender (a "Defaulting Lender") shall fail or
refuse to perform any of its obligations under this Agreement or any other Loan
Document to which it is a party within the time period specified for performance
of such obligation or, if no time period is specified, if such failure or
refusal continues for a period of 5 Business Days after notice from the Agent,
then, in addition to the rights and remedies that may be available to the Agent
or the Borrower under this Agreement or Applicable Law, such Defaulting Lender's
27
right to participate in the administration of the Advances, this Agreement and
the other Loan Documents, including without limitation, any right to vote in
respect of, to consent to or to direct any action or inaction of the Agent or to
be taken into account in the calculation of Requisite Lenders, shall be
suspended during the pendency of such failure or refusal. If for any reason a
Lender fails to make timely payment to the Agent of any amount required to be
paid to the Agent hereunder (without giving effect to any notice or cure
periods), in addition to other rights and remedies which the Agent or the
Borrower may have under the immediately preceding provisions or otherwise, the
Agent shall be entitled (i) to collect interest from such Defaulting Lender on
such delinquent payment for the period from the date on which the payment was
due until the date on which the payment is made at the Federal Funds Rate, (ii)
to withhold or setoff and to apply in satisfaction of the defaulted payment and
any related interest, any amounts otherwise payable to such Defaulting Lender
under this Agreement or any other Loan Document and (iii) to bring an action or
suit against such Defaulting Lender in a court of competent jurisdiction to
recover the defaulted amount and any related interest. The Agent shall give the
Borrower prompt notice of the failure of any Lender to make available to the
Agent the proceeds of any Advance required to be made available by such Lender.
Any amounts received by the Agent in respect of a Defaulting Lender's Advances
shall not be paid to such Defaulting Lender and shall be held by the Agent and,
except as otherwise provided in this Section 3.8, paid to such Defaulting Lender
upon the Defaulting Lender's curing of its default.
Section 3.9. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Advances and all other Obligations shall be made free and clear
of and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits and (iv)
any taxes arising after the Agreement Date solely as a result of or attributable
to a Lender changing its designated Lending Office after the date such Lender
becomes a party hereto (such non-excluded items being collectively called
"Taxes"). If any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
Governmental Authority; and
(iii) pay to the Agent for its account or the account of the applicable
Lender, as the case may be, such additional amount or amounts as is necessary to
ensure that the net amount actually received by the Agent or such Lender will
equal the full amount that the Agent or such Lender would have received had no
such withholding or deduction been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the Agent,
for its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
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(c) Tax Forms. Prior to the date that any Lender or Participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including Internal
Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor
forms), properly completed, currently effective and duly executed by such Lender
or Participant establishing that payments to it hereunder and under the Notes
are (i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Code. Each such
Lender or Participant shall (x) deliver further copies of such forms or other
appropriate certifications on or before the date that any such forms expire or
become obsolete and after the occurrence of any event requiring a change in the
most recent form delivered to the Borrower and (y) obtain such extensions of the
time for filing, and renew such forms and certifications thereof, as may be
reasonably requested by the Borrower or the Agent. The Borrower shall not be
required to pay any amount pursuant to last sentence of subsection (a) above to
any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America or the Agent, if it is organized under
the laws of a jurisdiction outside of the United States of America, if such
Lender, Participant or the Agent, as applicable, fails to comply with the
requirements of this subsection. If any such Lender or Participant fails to
deliver the above forms or other documentation, then the Agent may withhold from
such payment to such Lender such amounts as are required by the Code. If any
Governmental Authority asserts that the Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from payments made
to or for the account of any Lender, such Lender shall indemnify the Agent
therefore, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including all fees and disbursements of any law firm or other
external counsel and the allocated cost of internal legal services and all
disbursements of internal counsel) of the Agent. The obligation of the Lenders
under this Section shall survive the termination of the Commitments, repayment
of all Obligations and the resignation or replacement of the Agent.
ARTICLE IV. YIELD PROTECTION, ETC.
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly pay to the Agent for
the account of a Lender from time to time such amounts as such Lender may
reasonably determine to be necessary to compensate such Lender for any costs
incurred by such Lender that it reasonably determines are attributable to its
making or maintaining of any LIBOR Advances or its obligation to make any LIBOR
Advances hereunder, any reduction in any amount receivable by such Lender under
this Agreement or any of the other Loan Documents in respect of any of such
LIBOR Advances or such obligation or the maintenance by such Lender of capital
in respect of its LIBOR Advances or its Commitment (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change that: (i) changes the basis of taxation of
any amounts payable to such Lender under this Agreement or any of the other Loan
Documents in respect of any of such LIBOR Advances or its Commitment (other than
taxes imposed on or measured by the overall net income of such Lender or of its
Lending Office for any of such LIBOR Advances by the jurisdiction in which such
Lender has its principal office or such Lending Office), or (ii) imposes or
modifies any reserve, special deposit or similar requirements (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve System
or other similar reserve requirement applicable to any other category of
liabilities or category of extensions of credit or other assets by reference to
which the interest rate on LIBOR Advances is determined) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, or other credit extended by, or any other acquisition of funds
by such Lender (or its parent corporation), or any commitment of such Lender
(including, without limitation, the Commitment of such Lender hereunder) or
(iii) has or would have the effect of reducing the rate of return on capital of
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such Lender to a level below that which such Lender could have achieved but for
such Regulatory Change (taking into consideration such Lender's policies with
respect to capital adequacy).
(b) Lender's Suspension of LIBOR Advances. Without limiting the effect
of the provisions of the immediately preceding subsection (a), if by reason of
any Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Advances is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Advances or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets that it may hold, then, if
such Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Advances
into, LIBOR Advances hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provision of Section 4.5. shall
apply).
(c) Notification and Determination of Additional Costs. Each of the
Agent and each Lender, as the case may be, agrees to notify the Borrower of any
event occurring after the Agreement Date entitling the Agent or such Lender to
compensation under any of the preceding subsections of this Section as promptly
as practicable; provided, however, that if the Agent or a Lender shall fail to
give such notice within 45 days after it obtains actual knowledge of such event,
then the Agent or such Lender, as the case may be, shall only be entitled to
compensation under any of the preceding subsections for compensable amounts
attributable to such event arising following the date the Agent or such Lender,
as the case may be, obtains actual knowledge of such event. The Agent and each
Lender, as the case may be, agrees to furnish to the Borrower (and in the case
of a Lender to the Agent as well) a certificate setting forth the basis and
amount of each request for compensation under this Section. Determinations by
the Agent or such Lender, as the case may be, of the effect of any Regulatory
Change shall be conclusive, provided that such determinations are made on a
reasonable basis and in good faith.
Section 4.2. Suspension of LIBOR Advances.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of LIBOR are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining rates of interest for
LIBOR Advances as provided herein or is otherwise unable to determine LIBOR, or
(b) the Agent reasonably determines (which determination shall be
conclusive) that the relevant rates of interest referred to in the definition of
LIBOR upon the basis of which the rate of interest for LIBOR Advances for such
Interest Period is to be determined are not likely to adequately cover the cost
to any Lender of making or maintaining LIBOR Advances for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect, the Lenders shall be
under no obligation to, and shall not, make additional LIBOR Advances, Continue
LIBOR Advances or Convert Advances into LIBOR Advances and the Borrower shall,
on the last day of each current Interest Period for each outstanding LIBOR
Advance, either prepay such Advance or Convert such Advance into a Base Rate
Advance.
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Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender
shall determine (which determination shall be conclusive and binding) that it is
unlawful for such Lender to honor its obligation to make or maintain LIBOR
Advances hereunder, then such Lender shall promptly notify the Borrower thereof
(with a copy of such notice to the Agent) and such Lender's obligation to make
or Continue, or to Convert Advances of any other Type into, LIBOR Advances shall
be suspended until such time as such Lender may again make and maintain LIBOR
Advances (in which case the provisions of Section 4.5. shall be applicable).
Section 4.4. Compensation.
The Borrower shall pay to the Agent for account of each Lender, upon
the request of such Lender through the Agent, such amount or amounts as shall be
sufficient to compensate such Lender for any loss, cost or expense that such
Lender reasonably determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of a
LIBOR Advance or Conversion of a LIBOR Advance, made by such Lender for any
reason (including, without limitation, acceleration) on a date other than the
last day of the Interest Period for such Advance; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent specified
in Section 5.2. to be satisfied) to borrow a LIBOR Advance from such Lender on
the date for such borrowing, or to Convert a Base Rate Advance into a LIBOR
Advance or Continue a LIBOR Advance on the requested date of such Conversion or
Continuation.
Not in limitation of the foregoing, such compensation shall include,
without limitation; in the case of a LIBOR Advance, an amount equal to the then
present value of (A) the amount of interest that would have accrued on such
LIBOR Advance for the remainder of the Interest Period at the rate applicable to
such LIBOR Advance, less (B) the amount of interest that would accrue on the
same LIBOR Advance for the same period if LIBOR were set on the date on which
such LIBOR Advance was repaid, prepaid or Converted or the date on which the
Borrower failed to borrow, Convert or Continue such LIBOR Advance, as
applicable, calculating present value by using as a discount rate LIBOR quoted
on such date. Upon Borrower's request (made through the Agent), any Lender
seeking compensation under this Section shall provide the Borrower with a
statement setting forth the basis for requesting such compensation and the
method for determining the amount thereof. Any such statement shall be
conclusive absent manifest error.
Section 4.5. Treatment of Affected Advances.
If the obligation of any Lender to make LIBOR Advances or to Continue,
or to Convert Base Rate Advances into, LIBOR Advances shall be suspended
pursuant to Section 4.2. or Section 4.3. then such Lender's LIBOR Advances shall
be automatically Converted into Base Rate Advances on the last day(s) of the
then current Interest Period(s) for LIBOR Advances (or, in the case of a
Conversion required by Section 4.2. on such earlier date as such Lender may
specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.1., Section 4.2. or 4.3. that gave rise to such Conversion no longer
exist:
(a) to the extent that such Lender's LIBOR Advances have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's LIBOR Advances shall be applied instead to its Base
Rate Advances; and
(b) all Advances that would otherwise be made or Continued by such
Lender as LIBOR Advances shall be made or Continued instead as Base Rate
Advances, and all Base Rate Advances of such Lender that would otherwise be
Converted into LIBOR Advances shall remain as Base Rate Advances.
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If such Lender gives notice to the Borrower (with a copy to the Agent)
that the circumstances specified in Section 4.1. or 4.3. that gave rise to the
Conversion of such Lender's LIBOR Advances pursuant to this Section no longer
exist (which such Lender agrees to do promptly upon such circumstances ceasing
to exist) at a time when LIBOR Advances made by other Lenders are outstanding,
then such Lender's Base Rate Advances shall be automatically Converted, on the
first day(s) of the next succeeding Interest Period(s) for such outstanding
LIBOR Advances, to the extent necessary so that, after giving effect thereto,
all Advances held by the Lenders holding LIBOR Advances and by such Lender are
held pro rata (as to principal amounts, Types and Interest Periods) in
accordance with their respective Commitments.
Section 4.6. Affected Lenders.
If (a) a Lender (other than the Lender then acting as the Agent)
requests compensation pursuant to Section 3.9. or 4.1., and the Requisite
Lenders are not also doing the same, or (b) the obligation of any Lender (other
than the Lender then acting as the Agent) to make LIBOR Advances or to Continue,
or to Convert Base Rate Advances into, LIBOR Advances shall be suspended
pursuant to Section 4.1.(b) or 4.2. but the obligation of the Requisite Lenders
shall not have been suspended under such Sections, then, so long as there does
not then exist any Default or Event of Default, the Borrower may demand that
such Lender (the "Affected Lender"), and upon such demand the Affected Lender
shall promptly, assign its Commitments to an Eligible Assignee subject to and in
accordance with the provisions of Section 12.5.(c) for a purchase price equal to
the aggregate principal balance of Advances then owing to the Affected Lender
plus any accrued but unpaid interest thereon and accrued but unpaid fees owing
to the Affected Lender. Each of the Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of such Affected Lender
under this Section, but at no time shall the Agent, such Affected Lender nor any
other Lender be obligated in any way whatsoever to initiate any such replacement
or to assist in finding an Eligible Assignee. The exercise by the Borrower of
its rights under this Section shall be at the Borrower's sole cost and expenses
and at no cost or expense to the Agent, the Affected Lender or any of the other
Lenders; provided, however, the Borrower shall not be obligated to reimburse or
otherwise pay an Affected Lender's administrative or legal costs incurred as a
result of the Borrower's exercise of its rights under this Section. The terms of
this Section shall not in any way limit the Borrower's obligation to pay to any
Affected Lender compensation owing to such Affected Lender pursuant to Section
3.9. or 4.1. with respect to any matters or events existing on or prior to the
date an Affected Lender ceases to be a party to this Agreement.
Section 4.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate an
alternate Lending Office with respect to any of its Advances affected by the
matters or circumstances described in Sections 3.9., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
Section 4.8. Assumptions Concerning Funding of LIBOR Advances.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Advances through
the purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Advances in an amount equal to the amount of the LIBOR
Advances and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Advances in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
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ARTICLE V. CONDITIONS PRECEDENT
Section 5.1. Initial Conditions Precedent.
The obligation of the Lenders to make the first Advance hereunder is
subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the
parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender
and complying with the terms of Section 2.8.;
(iii) the Parent Guaranty executed by the Parent;
(iv) an opinion of counsel of the Parent and the Loan Parties,
addressed to the Agent and the Lenders and covering the matters set
forth in Article VI hereof and such additional matters relating to the
transactions contemplated hereby as Agent may request;
(v) a certificate signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each
Loan Party and the Parent certifying that there has been no change to
the certificate or articles of incorporation, articles of organization,
partnership agreement, certificate of limited partnership, declaration
of trust, operating agreement, by-laws and other comparable
organizational instruments of each Loan Party and the Parent since June
18, 2004 (the date of the most recent certification signed by the
Assistant Secretary of Parent);
(vi) a certificate of good standing (or certificate of similar
meaning) with respect to each Loan Party and the Parent issued as of a
recent date by the Secretary of State of the state of formation of each
such Person and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and
any state department of taxation, as applicable) of each state in which
such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of each Loan Party and the Parent with respect to each of the officers
of such Person authorized to execute and deliver the Loan Documents to
which such Person is a party, and in the case of the Borrower,
authorized to execute and deliver on behalf of the Borrower Notices of
Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant
Secretary of each Loan Party and the Parent (or other individual
performing similar functions) of all corporate, partnership, member or
other necessary action taken by such Person to authorize the execution,
delivery and performance of the Loan Documents to which it is a party;
(ix) a Compliance Certificate calculated for the Borrower's
fiscal quarter ending June 30, 2004;
33
(x) evidence that the Fees then due and payable under Section
3.5., together with all other fees, expenses and reimbursement amounts
due and payable to the Agent and any of the Lenders have been paid;
(xi) evidence that the indebtedness under that certain Bridge
Loan Agreement dated as of September 30, 2003 among Borrower, Parent,
▇▇▇▇▇ Fargo Bank, National Association and U. S. Bank National
Association, as amended, has been paid in full, and that such Bridge
Loan Agreement, and all commitments to make advances thereunder, have
been terminated.
(xii) such other documents and instruments as the Agent may
reasonably request; and
(b) In the good faith judgment of the Agent:
(i) there shall not have occurred or become known to the Agent
or any of the Lenders any event, condition, situation or status since
the date of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the
Parent, the Borrower and their Subsidiaries delivered to the Agent and
the Lenders prior to the Agreement Date that has had or could
reasonably be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (A) result in a
Material Adverse Effect or (B) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect,
the ability of any Loan Party or the Parent to fulfill its obligations
under the Loan Documents to which it is a party; and
(iii) the Parent, the Borrower and the other Loan Parties
shall have received all approvals, consents and waivers, and shall have
made or given all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the occurrence
of any default under, conflict with or violation of (A) any Applicable
Law or (B) any agreement, document or instrument to which any Loan
Party or the Parent is a party or by which any of them or their
respective properties is bound, except for such approvals, consents,
waivers, filings and notices the receipt, making or giving of which, or
the failure to make, give or receive which, would not reasonably be
likely to (1) have a Material Adverse Effect, or (2) restrain or
enjoin, impose materially burdensome conditions on, or otherwise
materially and adversely affect the ability of the Borrower, or any
other Loan Party or the Parent to fulfill its obligations under the
Loan Documents to which it is a party.
Section 5.2. Conditions Precedent to All Advances
The obligations of Lenders to make any Advances are subject to the
further conditions precedent that:
(a) (x) no Default under subsections (a), (b)(i), (e) or (f) of Section
10.1, (y) no other Default as to which the Agent has given the Borrower notice
and (z) no Event of Default, shall exist as of the date of the making of such
Advance or would exist immediately after giving effect thereto;
(b) none of the conditions described in Section 2.12. would exist after
giving effect to the making of such Advance;
(c) the representations and warranties made or deemed made by the
Parent, the Borrower and each other Loan Party in the Loan Documents to which
any of them is a party, shall be true and correct on and as of the date of the
34
making of such Advance with the same force and effect as if made on and as of
such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and accurate on and as of such earlier date)
and except for changes in factual circumstances specifically and expressly
permitted hereunder; and
(d) the Agent shall have received a timely Notice of Borrowing.
The occurrence of each Credit Event shall constitute a certification by
the Borrower to the effect set forth in the immediately preceding subsections
(a) through (c) (both as of the date of the giving of notice relating to such
Credit Event and, unless the Borrower otherwise notifies the Agent prior to the
date of such Credit Event, as of the date of the occurrence of such Credit
Event). In addition, the Borrower shall be deemed to have represented to the
Agent and the Lenders at the time such Advance is made that to the best of the
Borrower's knowledge all conditions to the making of such Advance contained in
this Article V. have been satisfied.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to make Advances, the Borrower represents and warrants to the
Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Parent and the Loan
Parties is a corporation, partnership or other legal entity, duly organized or
formed, validly existing and in good standing under the jurisdiction of its
incorporation or formation, has the power and authority to own or lease its
respective properties and to carry on its respective business as now being and
hereafter proposed to be conducted and is duly qualified and is in good standing
as a domestic or foreign corporation, partnership or other legal entity, and
authorized to do business, in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification or
authorization and where the failure to be so qualified or authorized could
reasonably be expected to have, in each instance, a Material Adverse Effect. The
partnership agreements, articles of incorporation, operating agreements, bylaws
and other similar organizational documents of Parent and the Loan Parties are in
full force and effect and in existence, and no proceeding is pending, planned or
threatened for any amendment, termination, dissolution or annulment thereof.
(b) Ownership of Loan Parties. Schedule 6.1.(b) is, as of the Agreement
Date, a complete and correct list of each Loan Party and each Subsidiary of the
Parent, directly or indirectly, holding an Equity Interest in any Loan Party,
setting forth for each such Person, (i) the jurisdiction of organization of such
Person, (ii) each Person holding any Equity Interest in such Person, (iii) the
nature of the Equity Interests held by each such Person and (iv) the percentage
of ownership of such Person represented by such Equity Interests. Except as
disclosed in such Schedule (A) each of the Parent, the Borrower and its
applicable Subsidiaries owns, free and clear of all Liens, and has the
unencumbered right to vote, all outstanding Equity Interests in each Person
shown to be held by it on such Schedule, (B) all of the issued and outstanding
capital stock of each such Person organized as a corporation is validly issued,
fully paid and nonassessable and (C) there are no outstanding subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, any such Person.
Exhibit 21 to the Parent's Form 10K for the fiscal year ended December 31, 2003
is an accurate list of the Subsidiaries of the Parent as of such date (excluding
those Subsidiaries that need not be disclosed on such Exhibit pursuant to
Regulation S-K of the Securities Act).
35
(c) Authorization of Agreement, Notes, Loan Documents and Borrowings.
The Borrower has the right and power, and has taken all necessary action to
authorize it, to obtain extensions of credit hereunder. The Borrower, each other
Loan Party and the Parent has the right and power, and has taken all necessary
action to authorize it, to execute, deliver and perform each of the Loan
Documents to which it is a party in accordance with their respective terms and
to consummate the transactions contemplated hereby and thereby. The Loan
Documents to which the Borrower, any other Loan Party or the Parent is a party
have been duly executed and delivered by the duly authorized officers of such
Person and each is a legal, valid and binding obligation of such Person
enforceable against such Person in accordance with its respective terms, except
as the same may be limited by bankruptcy, insolvency, and other similar laws
affecting the rights of creditors generally and the availability of equitable
remedies for the enforcement of certain obligations contained herein or therein
may be limited by equitable principles generally.
(d) Compliance of Agreement, Etc. with Laws. The execution, delivery
and performance of this Agreement and the other Loan Documents to which any Loan
Party or the Parent is a party in accordance with their respective terms and the
borrowings and other extensions of credit hereunder do not and will not, by the
passage of time, the giving of notice, or both: (i) require any Governmental
Approval or violate any Applicable Law (including all Environmental Laws)
relating to any Loan Party or the Parent;(ii) conflict with, result in a breach
of or constitute a default under the organizational documents of the Borrower,
any other Loan Party or the Parent, or any indenture, agreement or other
instrument to which any Loan Party or the Parent is a party or by which it or
any of its respective properties may be bound; or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by any Loan Party or the Parent other than in favor
of the Agent for the benefit of the Lenders.
(e) Compliance with Law; Governmental Approvals. To the best of the
knowledge of the Parent and the Borrower after due inquiry, the Parent, each
Loan Party and each other Subsidiary is in compliance with each Governmental
Approval and all other Applicable Laws relating to it except for noncompliances
which, and Governmental Approvals the failure to possess which, could not,
individually or in the aggregate, reasonably be expected to cause a Default or
Event of Default or have a Material Adverse Effect.
(f) Litigation. Except as set forth on Schedule 6.1.(f), there are no
actions, suits or proceedings pending (nor, to the knowledge of any Loan Party
or the Parent, are there any actions, suits or proceedings threatened, nor is
there any basis therefore) against or in any other way relating adversely to or
affecting, or the Parent, any Loan Party, any other Subsidiary or any of their
respective property which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect.
(g) Taxes. All federal, state and other tax returns of the Borrower and
the Parent required by Applicable Law to be filed have been duly filed (other
than any return the filing date of which has been extended in accordance with
Applicable Law), and all federal, state and other taxes, assessments and other
governmental charges or levies upon, the Borrower and the Parent and each of
their respective properties, income, profits and assets which are due and
payable have been paid, except any such nonpayment or non-filing which is at the
time permitted under Section 7.5. As of the Agreement Date, none of the United
States income tax returns of either the Borrower or the Parent is under audit.
All charges, accruals and reserves on the books of the Borrower and the Parent
in respect of any taxes or other governmental charges are in accordance with
GAAP.
(h) Financial Statements. The Borrower has furnished to each Lender
copies of (i) the audited consolidated balance sheets of the Parent and its
consolidated Subsidiaries for the fiscal years ended December 31, 2002 and
December 31, 2003, and the related consolidated statements of operations,
shareholders' equity and cash flows for the fiscal years ended on such dates,
36
with the opinion thereon of Deloitte & Touche LLP, and (ii) the unaudited
consolidated balance sheets of the Parent and its consolidated Subsidiaries for
the fiscal quarter ended June 30, 2004, and the related consolidated statements
of operations and cash flows of the Parent and its consolidated Subsidiaries for
the two fiscal quarter period ended on such date. Such balance sheets and
statements (including in each case related schedules and notes) are complete and
correct in all material respects and present fairly, in accordance with GAAP
consistently applied throughout the periods involved, the consolidated financial
position of the Borrower and its consolidated Subsidiaries as of their
respective dates and the results of operations and the cash flow for such
periods (subject, as to interim statements, to changes resulting from normal
year-end audit adjustments). Neither the Parent, the Borrower nor any Subsidiary
owning a Property has on the Agreement Date any material contingent liabilities,
liabilities, liabilities for taxes, unusual or long-term commitments or
unrealized or forward anticipated losses from any unfavorable commitments,
except as referred to or reflected or provided for in said financial statements.
(i) No Material Adverse Change. Since June 30, 2004, there has been no
material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Parent and its Subsidiaries, or
Borrower and its Subsidiaries, in each case, taken as a whole. Each of the
Parent, the Borrower, the other Loan Parties and the other Subsidiaries is
Solvent.
(j) ERISA. Neither the Borrower nor any other member of the ERISA Group
(excluding the Management Company and ERMC, LP) (i) has ever maintained,
adopted, sponsored in whole or in part, or contributed to any pension,
retirement, profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other incentive plan, any other
written employee program, arrangement, or agreement, any medical, vision,
dental, or any other health plan, any life insurance plan, nor any other
employee benefit plan or fringe benefit plan, including, but not limited to, an
"employee benefit plan" (as defined in Section 3(3) of ERISA) or a "defined
benefit plan" (as defined in Section 414(j) of the Internal Revenue Code); (ii)
has ever withdrawn from a multiemployer plan within the meaning of Section 3(37)
of ERISA; (iii) has incurred any liability under Title IV of ERISA with respect
to any ongoing, frozen, or terminated single-employer plan; or (iv) has any
employees. Neither the Management Company nor ERMC, LP (x) has ever maintained,
adopted, sponsored in whole or in part, or contributed to any Plan; (y) has ever
withdrawn from a multiemployer plan within the meaning of Section 3(37) of
ERISA; or (z) has incurred any liability under Title IV of ERISA with respect to
any ongoing, frozen, or terminated single-employer plan. For purposes of the
prior sentence the term "Plan" means an employee pension benefit plan (including
any multiemployer plan) covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal Revenue Code and either (A)
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (B) at any time within the preceding five years
been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
(k) Absence of Defaults. None of the Parent, the Loan Parties or the
other Subsidiaries is in default under its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event
has occurred, which has not been remedied, cured or waived: (i) which
constitutes a Default or an Event of Default; or (ii) which constitutes, or
which with the passage of time, the giving of notice, or both, would constitute,
a default or event of default by, the Parent, any Loan Party or any other
Subsidiary under any agreement (other than this Agreement) or judgment, decree
or order to which any such Person is a party or by which any such Person or any
of its respective properties may be bound where such default or event of default
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(l) Environmental Laws. To the best of the knowledge of the Parent and
the Borrower after due inquiry, each of the Loan Parties and the other
Subsidiaries is in compliance with all applicable Environmental Laws and has
obtained all Governmental Approvals which are required under Environmental Laws
and is in compliance with all terms and conditions of such Governmental
37
Approvals, where with respect to each of the foregoing the failure to obtain or
to comply with could be reasonably expected to have a Material Adverse Effect.
Except for any of the following matters that could not be reasonably expected to
have a Material Adverse Effect, to the best of the knowledge of the Parent and
the Borrower after due inquiry, neither the Parent nor any Loan Party is aware
of, nor has it received notice of, any past or present events, conditions,
circumstances, activities, practices, incidents, actions, or plans which, with
respect to any Loan Party or any other Subsidiary, may unreasonably interfere
with or prevent compliance or continued compliance with Environmental Laws, or
may give rise to any common-law or legal liability, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any Hazardous Substance; and there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or
demand letter, notice of violation, investigation, or proceeding pending or
threatened, against any Loan Party or any other Subsidiary relating in any way
to Environmental Laws which, if determined adversely to such Loan Party or such
other Subsidiary, could be reasonably expected to have a Material Adverse
Effect.
(m) Legal Restrictions on Ability to Borrow. Neither the Parent nor any
Loan Party is subject to any Applicable Law which purports to regulate or
restrict its ability to borrow money or obtain other extensions of credit or to
consummate the transactions contemplated by this Agreement or to perform its
obligations under any Loan Document to which it is a party.
(n) Margin Stock. Neither the Parent nor any Loan Party is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System.
(o) Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by the Parent or
any Loan Party for any other services rendered to the Parent or any Loan Party
ancillary to the transactions contemplated hereby.
(p) Accuracy and Completeness of Information. All written information,
reports and other papers and data furnished to the Agent or any Lender by, on
behalf of, or at the direction of, the Parent or any Loan Party were, at the
time the same were so furnished, complete and correct in all material respects,
to the extent necessary to give the recipient a true and accurate knowledge of
the subject matter, or, in the case of financial statements, present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
financial position of the Persons involved as at the date thereof and the
results of operations for such periods. No fact is known to the Parent or any
Loan Party which has had a Material Adverse Effect which has not been set forth
in the financial statements referred to in Section 6.1.(h) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Agent and the Lenders prior to the Effective Date. No document furnished
or written statement made to the Agent or any Lender in connection with the
negotiation, preparation or execution, or pursuant to, of this Agreement or any
of the other Loan Documents contains any untrue statement of a fact material to
the creditworthiness of any Loan Party or omits to state a material fact
necessary in order to make the statements contained therein not misleading.
(q) Not Plan Assets; No Prohibited Transactions. None of the assets of
the Parent or any Loan Party constitutes "plan assets" within the meaning of
ERISA, the Internal Revenue Code and the respective regulations promulgated
thereunder. The execution, delivery and performance of the Loan Documents by the
Loan Parties and the Parent, and the borrowing, obtaining of other credit
extensions and repayment of amounts thereunder, do not and will not constitute
"prohibited transactions" under ERISA or the Internal Revenue Code.
38
(r) Tax Shelter Regulations. Neither the Borrower, the Parent, any
Guarantor, any other Loan Party or any non-borrower trustor, nor any Subsidiary
of any of the foregoing intends to treat the Loan or the transactions
contemplated by this Agreement and the other Loan Documents as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). If the Borrower, the Parent, any Guarantor or any other Loan Party
determines to take any action inconsistent with such intention, the Borrower
will promptly notify the Agent thereof. If the Borrower so notifies the Agent,
the Borrower acknowledges that Agent and each Lender may treat its Loan as part
of a transaction that is subject to Treasury Regulation Section 301.6112-1, and
Agent and such Lender (or Lenders, as applicable), will maintain the lists and
other records, including the identity of the applicable party to the Loan as
required by such Treasury Regulation.
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of any Loan Party or the Parent to
the Agent or any Lender pursuant to or in connection with this Agreement or any
of the other Loan Documents (including, but not limited to, any such statement
made in or in connection with any amendment thereto or any statement contained
in any certificate, financial statement or other instrument delivered by or on
behalf of any Loan Party or the Parent prior to the Agreement Date and delivered
to the Agent or any Lender in connection with the underwriting or closing the
transactions contemplated hereby) shall constitute representations and
warranties made by the Borrower under this Agreement. All representations and
warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date and at and
as of the date of the occurrence of each Credit Event, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically permitted hereunder. All such representations and
warranties shall survive the effectiveness of this Agreement, the execution and
delivery of the Loan Documents and the making of the Advances but shall
terminate upon the termination of this Agreement in accordance with, but subject
to, the provisions of Section 12.10.
ARTICLE VII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 12.6., the Parent and
the Borrower, as applicable, shall comply with the following covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.3., the Parent and the
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, preserve and maintain its respective existence, rights, franchises, licenses
and privileges in the jurisdiction of its incorporation or formation and qualify
and remain qualified and authorized to do business in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
Section 7.2. Compliance with Applicable Law.
The Parent and the Borrower shall, and shall cause each other Loan
Party and each other Subsidiary to, comply with all Applicable Law, including
the obtaining of all Governmental Approvals, the failure with which to comply
could reasonably be expected to have a Material Adverse Effect.
39
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each Subsidiary owning a Property, to keep all
such Property in good working order and condition, ordinary wear and tear and
insured casualty losses excepted.
Section 7.4. Insurance.
Borrower shall obtain and maintain, or cause to be obtained and
maintained, insurance upon and all of the Properties owned by Parent, Borrower
or any Subsidiary, insuring against personal injury and death, loss by fire and
such other hazards, casualties and contingencies (including business
interruption insurance covering loss of rents for a period of twelve [12] months
and builder's all risk coverage and, as required by Agent and provided the same
is available at a commercially reasonable premium, terrorism coverage or
policies with no exclusion for loss, cost, damage or liability caused by
"terrorism" or "terrorist acts," no matter how defined in such policies) as are
normally and usually covered by extended coverage policies in effect where the
properties are located and such other risks as may be reasonably specified by
Agent, from time to time, all in such amounts and with such insurers of
recognized responsibility as are reasonably acceptable to Agent.
Section 7.5. Payment of Taxes and Claims.
The Parent and the Borrower shall pay and discharge, and shall cause
each Subsidiary to pay and discharge, when due (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any properties belonging to it, and (b) all lawful claims of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials, supplies
and rentals which, if unpaid, might become a Lien on any properties of such
Person, provided, however, that this subsection shall not require the payment or
discharge of any such tax, assessment, charge, levy or claim which is (x) being
contested in good faith by appropriate proceedings which operate to suspend the
collection thereof and for which adequate reserves have been established on the
books of such Person, or (y) bonded or otherwise insured against to the
reasonable satisfaction of the Agent.
Section 7.6. Books and Records; Inspections.
The Parent and the Borrower will, and will cause each other Loan Party
and each other Subsidiary to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities. The Parent and the Borrower will, and
the Borrower will cause each Subsidiary to, permit representatives of the Agent
or any Lender (with reasonable prior notice so long as no Event of Default then
exists) to visit and inspect any of their respective properties, for the purpose
of determining the existence, location, nature and magnitude of any past or
present release or threatened release of any Hazardous Substances into, onto,
beneath or from such property, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants, all at such reasonable times during business hours and as often as
may reasonably be requested; provided, however, unless an Event of Default
exists (a) only the Agent may exercise its rights under this Section which shall
be limited to one inspection during any period of 12 consecutive months and
shall be at Agent's sole expense and risk, (b) any discussions with the
independent public accountants of the Parent and Borrower may be conducted only
in the presence of the Borrower, (c) the Agent may not discuss the affairs,
finances and accounts of the Parent or the Borrower with their employees
pursuant to this Section. The Borrower shall reimburse the Agent and, if an
Event of Default exists, the Lenders, for their costs and expenses incurred in
connection with the exercise of their rights under this Section.
40
Section 7.7. Use of Proceeds.
The Borrower will only use the proceeds of Advances for any purposes
not prohibited by Applicable Law or by this Agreement. The Borrower shall not,
and shall not permit any other Loan Party or any other Subsidiary or the Parent
to, use any part of such proceeds to purchase or carry, or to reduce or retire
or refinance any credit incurred to purchase or carry, any margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System) or to extend credit to others for the purpose of purchasing or carrying
any such margin stock if, in any such case, such use might result in any of the
Advances or other Obligations being consider to be "purpose credit" directly or
indirectly secured by margin stock within the meaning of Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System.
Section 7.8. Environmental Matters.
The Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, comply with all Environmental Laws the failure with which
to comply could reasonably be expected to have a Material Adverse Effect. If the
Parent, any Loan Party or any other Subsidiary shall (a) receive notice that any
violation of any Environmental Law has been committed by such Person, (b)
receive notice that any administrative or judicial complaint or order has been
filed or is about to be filed against any such Person alleging violations of any
Environmental Law or requiring any such Person to take any action in connection
with the release of Hazardous Substances or (c) receive any notice from a
Governmental Authority or private party alleging that any such Person may be
liable or responsible for costs associated with a response to or cleanup of a
release of Hazardous Substances or any damages caused thereby, and such notices,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, the Borrower shall provide the Agent with a copy of
such notice within 10 days after the receipt thereof by such Person or any of
the Subsidiaries.
Section 7.9. Further Assurances.
At the Borrower's cost and expense and upon request of the Agent, the
Borrower shall duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents and certificates,
and do and cause to be done such further acts that may be reasonably necessary
or advisable in the reasonable opinion of the Agent to carry out more
effectively the provisions and purposes of this Agreement and the other Loan
Documents.
Section 7.10. REIT Status.
The Parent shall at all times maintain its status as a REIT.
Section 7.11. Exchange Listing.
The Parent shall maintain outstanding at least one class of common
shares of the Parent having trading privileges on the New York Stock Exchange or
the American Stock Exchange or which is subject to price quotations on The
NASDAQ Stock Market's National Market System.
ARTICLE VIII. INFORMATION
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower shall
furnish to the Agent at the Principal Office for distribution to the Lenders:
41
Section 8.1. Quarterly Financial Statements.
Within 5 Business Days of the filing thereof, a copy of each report on
Form 10-Q (or its equivalent) which the Parent shall file with the Securities
and Exchange Commission (or any Governmental Authority substituted therefore).
If the Parent ceases to file such reports, or if any such report filed does not
contain any of the following, then the Borrower shall deliver as soon as
available and in any event within 45 days after the close of each fiscal quarter
of the Parent, the unaudited consolidated balance sheet of the Parent and its
Subsidiaries as at the end of such period and the related unaudited consolidated
statements of operations and cash flows of the Parent and its Subsidiaries for
such period, setting forth in each case in comparative form the figures as of
the end of and for the corresponding periods of the previous fiscal year, all of
which shall be certified by the chief financial officer, controller, financial
officer or accounting officer of the Parent, in his or her opinion, to present
fairly, in accordance with GAAP and in all material respects, the consolidated
financial position of the Parent and its Subsidiaries as at the date thereof and
the results of operations for such period (subject to normal year-end audit
adjustments).
Section 8.2. Year-End Statements.
Within 5 Business Days of the filing thereof, a copy of each report on
Form 10-K (or its equivalent) which the Parent shall file with the Securities
and Exchange Commission (or any Governmental Authority substituted therefore).
If the Parent ceases to file such reports, or if any such report filed does not
contain any of the following, then the Borrower shall deliver as soon as
available and in any event within 120 days after the end of each fiscal year of
the Parent, the audited consolidated balance sheet of the Parent and its
Subsidiaries as at the end of such fiscal year and the related audited
consolidated statements of operations, shareholders' equity and cash flows of
the Parent and its Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal year,
all of which shall be certified by (a) the chief financial officer or chief
accounting officer of the Parent, in his or her opinion, to present fairly, in
accordance with GAAP, the financial position of the Parent and its Subsidiaries
as at the date thereof and the result of operations for such period and (b)
Deloitte & Touche or any other independent certified public accountants of
recognized national standing, whose certificate shall be unqualified and in
scope and substance required by generally accepted auditing standards and who
shall have authorized the Parent to deliver such financial statements and
certification thereof to the Agent and the Lenders pursuant to this Agreement.
Section 8.3. Compliance Certificate.
At the time the financial statements are furnished pursuant to the
immediately preceding Sections 8.1. and 8.2., a certificate substantially in the
form of Exhibit G (a "Compliance Certificate") executed on behalf of the
Borrower by the chief financial officer, controller, financial officer or
accounting officer of the Borrower (a) setting forth as of the end of such
quarterly accounting period or fiscal year, as the case may be, the calculations
required to establish whether the Parent was in compliance with the covenants
contained in Section 9.1.; (b) setting forth the Leverage Ratio for the fiscal
quarter most recently ended and the Applicable LIBOR Rate Margin which shall
become effective as of the first day of the quarter in which such Compliance
Certificate is due based on such Leverage Ratio; and (c) stating that, to the
best of such officer's knowledge, no Default or Event of Default exists, or, if
such is not the case, specifying such Default or Event of Default and its
nature, when it occurred and the steps being taken by the Parent with respect to
such event, condition or failure.
Section 8.4. Other Information.
(a) Within 10 Business Days of the filing thereof, notice of the
filing, and if the same are not available on-line free of charge from either the
website of the Securities and Exchange Commission or the website of the Parent,
42
copies of all registration statements (excluding the exhibits thereto and any
registration statements on Form S-8 or its equivalent), reports on Form 8-K (or
its equivalent) and all other periodic reports which the Parent, any Loan Party
or any other Subsidiary shall file with the Securities and Exchange Commission
(or any Governmental Authority substituted therefore) or any national securities
exchange;
(b) no later than 60 days after the end of each fiscal year of the
Parent ending prior to the Termination Date, cash flow budgets (including
sources and uses of cash) of the Parent and its Subsidiaries on a consolidated
basis for each quarter of the next succeeding fiscal year, all itemized in
reasonable detail;
(c) no more than 30 days following the consummation of any transaction
of acquisition, merger or purchase of assets, involving consideration, or
valued, in excess of $300,000,000 but less than $500,000,000, whether a single
transaction or related series of transactions, together with a reasonably
detailed description thereof;
(d) to the extent any Senior Officer is aware of the same, prompt
notice of the commencement of any proceeding or investigation by or before any
Governmental Authority and any action or proceeding in any court or other
tribunal or before any arbitrator against or in any other way relating adversely
to, or adversely affecting, the Parent, any Loan Party or any other Subsidiary
or any of their respective properties, assets or businesses which, if determined
or resolved adversely to such Person, could reasonably be expected to have a
Material Adverse Effect, and prompt notice of the receipt of notice that any
United States income tax returns of any Loan Party are being audited;
(e) prompt notice of any change in the Chairman, chief executive
officer, President or chief financial officer of the Parent, the Borrower, the
Management Company, or any other Loan Party and any change in the business,
assets, liabilities, financial condition, results of operations or business
prospects of the Parent or any Loan Party which has had or could reasonably be
expected to have a Material Adverse Effect;
(f) promptly upon the request of the Agent, evidence of the Borrower's
calculation of the Ownership Share with respect to a Subsidiary or an
Unconsolidated Affiliate, such evidence to be in form and detail satisfactory to
the Agent; and
(g) from time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
any Property or the business, assets, liabilities, financial condition, results
of operations or business prospects of the Parent, the Borrower, any of their
respective Subsidiaries or the Management Company as the Agent or any Lender may
reasonably request.
ARTICLE IX. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower or the
Parent, as the case may be, shall comply with the following covenants:
Section 9.1. Financial Covenants.
(a) Minimum Tangible Net Worth. The Parent shall not permit Tangible
Net Worth at any time to be less than (i) $1,055,744,000 plus (ii) 50% of the
Net Proceeds of all Equity Issuances effected at any time after the Agreement
Date by the Parent or any of its Subsidiaries to any Person other than the
Parent or any of its Subsidiaries.
(b) Leverage Ratio. The Parent shall not permit the Leverage
Ratio to exceed 0.650 to 1.00 at any time.
(c) Ratio of EBITDA to Interest Expense. The Parent shall not permit
the ratio of (i) EBITDA of the Parent and its Subsidiaries determined on a
consolidated basis for the fiscal quarter most recently ended to (ii) Interest
Expense of the Parent and its Subsidiaries determined on a consolidated basis
for such period, to be less than 1.750 to 1.00.
(d) Ratio of EBITDA to Debt Service. The Parent shall not permit the
ratio of (i) EBITDA of the Parent and its Subsidiaries determined on a
consolidated basis for the fiscal quarter most recently ended to (ii) Debt
Service of the Parent and its Subsidiaries determined on a consolidated basis
for such period, to be less than 1.550 to 1.00.
(e) Dividends and Other Restricted Payments. If an Event of Default
exists or would exist following the making of a Restricted Payment, the Parent
and the Borrower will not declare or make, or permit any other Subsidiary to
declare or make, any Restricted Payment except that (i) the Parent may declare
or make cash distributions to its shareholders during any fiscal year in an
aggregate amount not to exceed the minimum amount necessary for the Parent to
remain in compliance with Section 7.10.; and (ii) the Parent may cause the
Borrower (directly or indirectly through any intermediate Subsidiaries) to make
cash distributions to the Parent and to other limited partners of the Borrower
in such proportion as required by Borrower's limited partnership agreement, and
the Parent may cause other Subsidiaries of the Parent to make cash distributions
to the Parent and to other holders of Equity Interests in such Subsidiaries, in
each case (x) in an aggregate amount not to exceed the amount of cash
distributions that the Parent is permitted to declare or distribute under the
immediately preceding clause (i) and (y) on a pro rata basis, such that the
aggregate amount distributed to the Parent does not exceed the amount that the
Parent is permitted to declare or distribute under the immediately preceding
clause (i). Notwithstanding the foregoing, if a Default or Event of Default
specified in Section 10.1.(a) resulting from the Borrower's failure to pay when
due the principal of, or interest on, any of the Advances or any Fees, Section
10.1.(e) or (f) shall have occurred and be continuing, or if as a result of the
occurrence of any other Event of Default the Obligations have been accelerated
pursuant to Section 10.2.(a), the Parent and the Borrower shall not, and shall
not permit any other Subsidiary to, make any Restricted Payments whatsoever.
(f) Permitted Investments. The Parent shall not, and shall not permit
the Borrower or other Subsidiary to, make an Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of such
Persons to exceed the following percentages of Gross Asset Value:
(i) unimproved real estate such that the aggregate book value
of all such unimproved real estate exceeds 10% of Gross Asset Value
(for purposes of this clause (i) unimproved real estate shall not
include (w) raw land subject to a ground lease under which the Borrower
or a Subsidiary is the lessor and a Person not an Affiliate is the
lessee; (x) Properties under development; (y) land subject to a binding
contract of sale under which the Borrower or one of its Subsidiaries is
the seller and the buyer is not an Affiliate of Borrower and (z)
out-parcels held for lease or sale at Properties which are either
completed or where development has commenced);
(ii) developed real estate used primarily for non-retail
purposes (other than the real estate located at CBL Center, 2030
▇▇▇▇▇▇▇▇ Place Boulevard, Chattanooga, Tennessee), such that the
aggregate book value of such real estate exceeds 10% of Gross Asset
Value;
(iii) Investments in Unconsolidated Affiliates of the Borrower
or the Parent, such that the value of such Investments, determined in
accordance with GAAP, exceeds 20% of Gross Asset Value;
43
(iv) Investments in Persons that are neither Subsidiaries nor
Unconsolidated Affiliates of the Borrower or the Parent, such that the
book value of such Investments, determined in accordance with GAAP,
exceeds 10% of Gross Asset Value; provided, however, this clause (iv)
shall not apply to Investments in any Person whose Equity Interests are
publicly traded and in which the Parent or the Borrower is attempting
to acquire a controlling interest but only to the extent the aggregate
value of such Investments under this clause (iv), determined on the
basis of lower of cost or market value, does not exceed 10% of Gross
Asset Value (the aggregate amount of such excess to be subject to this
subsection (f)); or
(v) Mortgages in favor of the Borrower or any other Loan Party
(other than (A) Mortgages securing Indebtedness owed to the Borrower or
any Subsidiary on September 30, 2002 and (B) Mortgages on assets owned
by the Parent, the Borrower or any Subsidiary), such that the aggregate
book value of Indebtedness secured by such Mortgages exceeds 10% of
Gross Asset Value.
In addition to the foregoing limitations, the aggregate value of the
Investments subject to the limitations in the preceding clauses (i) through (v)
shall not exceed 35% of Gross Asset Value.
(g) Value of Borrower Owned by Parent. The Parent shall not permit (i)
more than 5.0% of the book value of its assets to be attributable to assets not
owned by the Borrower or any Subsidiary of the Borrower or (ii) more than 10.0%
of the gross revenues of the Parent to be attributable to gross revenues of any
Person other than the Borrower or any Subsidiary of the Borrower.
(h) Unsecured Indebtedness. Borrower shall not permit the sum of (a)
Borrower's Unsecured Indebtedness (excluding the Loan), plus (b) the Unsecured
Indebtedness of Borrower's Affiliates, to exceed $100,000,000.00 at any time.
(i) Maximum Recourse Indebtedness. Borrower shall not permit the sum of
all Indebtedness which is recourse to Parent, Borrower, General Partner, or any
Subsidiary or Affiliate of any of the foregoing, determined on a consolidated
basis, but excluding the Loan, to exceed 25% of Gross Asset Value at any time.
(j) Secured Indebtedness. Borrower shall not permit the sum of (a)
Borrower's Secured Indebtedness, plus (b) the Secured Indebtedness of Borrower's
Affiliates, to exceed 60% of Gross Asset Value at any time.
(k) Ratio of EBITDA to Indebtedness. The Parent shall not permit the
ratio of (i) EBITDA of the Parent and its Subsidiaries for the fiscal quarter
most recently ended multiplied by four (4) to (ii) Indebtedness of the Parent
and its Subsidiaries, each determined on a consolidated basis in accordance with
GAAP, to be less than 0.12 to 1.00 at any time.
Section 9.2. Restrictions on Intercompany Transfers.
The Borrower shall not, and shall not permit any of its Subsidiaries
(other than CMBS Subsidiaries) to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary to: (i) pay dividends or make any other distribution
on any of such Subsidiary's Equity Interests owned by the Borrower or any other
Subsidiary; (ii) pay any Indebtedness owed to the Borrower or any other
Subsidiary; (iii) make loans or advances to the Borrower or any other
Subsidiary; or (iv) transfer any of its property or assets to the Borrower or
any other Subsidiary. As used in this Section, the term "CMBS Subsidiary" means
any Subsidiary (a) formed for the specific purpose of holding title to assets
which are collateral for any Extension of Credit to such Subsidiary; (b) which
44
is prohibited from Guarantying Extension of Credit to any other Person pursuant
to (i) any document, instrument or agreement evidencing such Extension of Credit
or (ii) a provision of such Person's organizational documents which provision
was included in such Person's organizational documents as a condition to the
making of such Extension of Credit; and (c) for which none of the Parent, the
Borrower, any other Loan Party or any other Subsidiary (other than another CMBS
Subsidiary) has Guaranteed any Extensions of Credit to such Subsidiary or has
any direct obligation to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve any specified levels of
operating results, except for customary exceptions for fraud, misapplication of
funds, environmental indemnities, and other similar exceptions to recourse
liability.
Section 9.3. Merger, Consolidation, Sales of Assets and Other Arrangements.
Without the prior written consent of the Requisite Lenders, such
consent not to be unreasonably withheld, the Parent and the Borrower shall not,
and shall not permit any other Loan Party or any other Subsidiary to, (a) enter
into any transaction of merger or consolidation; (b) liquidate, windup or
dissolve itself (or suffer any liquidation or dissolution); or (c) convey, sell,
lease, sublease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any substantial part of its business or assets,
or the capital stock of or other Equity Interests in any of its Subsidiaries,
whether now owned or hereafter acquired; provided, however, that:
(i) any Subsidiary may merge with a Loan Party so long as such Loan
Party is the survivor;
(ii) any Subsidiary may sell, transfer or dispose of its assets to a
Loan Party;
(iii) the Borrower or the Parent may merge with another Person so long
as (x) the Borrower or the Parent, as the case may be, is the survivor of such
merger and (y) immediately prior to any such merger and immediately thereafter
and after giving effect thereto, no Event of Default is or would be in
existence;
(iv) any Subsidiary that is not (and is not required to be) a Loan
Party may enter into any transaction described in the introductory paragraph of
this Section, provided that immediately prior to any such transaction and
immediately thereafter and after giving effect thereto, no Event of Default is
or would be in existence;
(v) the Loan Parties and the other Subsidiaries may lease and sublease
their respective assets, as lessor or sublessor (as the case may be), in the
ordinary course of their business.
Notwithstanding the forgoing, without the prior written consent of all
of the Lenders (such consent not to be unreasonably withheld), neither the
Borrower nor the Parent may merge with another Person if such other Person is to
be the survivor of such merger.
Section 9.4. Acquisitions.
Neither Borrower nor any of its Subsidiaries shall acquire the business
of or all or substantially all of the assets or stock of any Person, or any
division of any Person, whether through Investment, purchase of assets, merger
or otherwise, in each case involving consideration, or valued, in excess of
$500,000,000 unless (a) no Default or Event of Default exists or would exist
immediately following the consummation of such acquisition and (b) the Borrower
has delivered to the Agent, at least 30 days prior to the date such acquisition
is consummated, (i) all information related to such acquisition as the Agent may
reasonably request and (ii) a Compliance Certificate, calculated on a pro forma
basis, evidencing continued compliance with the financial covenants contained in
Section 9.1., after giving effect to such acquisition.
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Section 9.5. Plans.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, permit any of its respective assets to become or be deemed to be "plan
assets" within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder.
Section 9.6. Fiscal Year.
The Parent and the Borrower shall not, and shall not permit any Loan
Party or other Subsidiary to, change its fiscal year from that in effect as of
the Agreement Date.
Section 9.7. Modifications of Organizational Documents.
The Parent and the Borrower shall not, and shall not permit any Loan
Party or other Subsidiary to, amend, supplement, restate or otherwise modify its
articles or certificate of incorporation, by-laws, partnership agreement or
other similar organizational document which modification could reasonably be
expected to have a Material Adverse Effect without the prior written consent of
the Requisite Lenders unless such amendment, supplement, restatement or other
modification is (a) required under or as a result of the Internal Revenue Code
or other Applicable Law or (b) required to maintain the Parent's status as a
REIT.
Section 9.8. Transactions with Affiliates.
The Borrower shall not permit to exist or enter into, and will not
permit any Loan Party or other Subsidiary to permit to exist or enter into, any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Borrower, except
transactions in the ordinary course of, and pursuant to the reasonable
requirements of, the business of the Borrower or any of its Subsidiaries and
upon fair and reasonable terms which are no less favorable to the Borrower or
such Subsidiary than would be obtained in a comparable arm's-length transaction
with a Person that is not an Affiliate.
ARTICLE X. DEFAULT
Section 10.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment. The Borrower shall fail to pay when due under
this Agreement or any other Loan Document (whether upon demand, at maturity, by
reason of acceleration or otherwise) the principal of, or any accrued interest
on, any of the Advances, or shall fail to pay any of the other payment
Obligations owing by the Borrower under this Agreement or any other Loan
Document, or any other Loan Party shall fail to pay when due any payment
obligation owing by such Loan Party under any Loan Document to which it is a
party, and in any such case, such failure continues for a period of 10 calendar
days after the date the Agent gives the Borrower notice of such failure.
(b) Default in Performance.
(i) Any Loan Party or the Parent shall fail to perform or observe any
term, covenant, condition or agreement on its part to be performed or observed
and contained in Section 9.1. and such failure continues for 90 calendar days
after the earlier of (x) the date any Senior Officer of the Borrower has actual
knowledge of such failure or (y) the date notice of such failure has been given
to the Borrower by the Agent; or
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(ii) any Loan Party or the Parent shall fail to perform or observe any
term, covenant, condition or agreement contained in this Agreement or any other
Loan Document to which it is a party and not otherwise mentioned in this Section
and such failure shall continue for a period of 30 calendar days after the
earlier of (x) the date any Senior Officer of the Borrower has actual knowledge
of such failure or (y) the date notice of such failure has been given to the
Borrower by the Agent; provided, however, that if such default is curable but
requires work to be performed, acts to be done or conditions to be remedied
which, by their nature, cannot be performed, done or remedied, as the case may
be, within such 30-day period, no Event of Default shall be deemed to have
occurred if such Loan Party or the Parent, as the case may be, commences the
same within such 30-day period and thereafter diligently and continuously
prosecutes the same to completion, and the same is in fact completed, no later
than the date 90 calendar days following the earlier of the date such Senior
Officer has actual knowledge of such failure or the date the Agent gave notice
of such failure to the Borrower.
(c) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of any Loan Party or the Parent
under this Agreement or under any other Loan Document, or in any other writing
or statement at any time furnished by, or at the direction of, any Loan Party or
the Parent to the Agent or any Lender under or in connection with this Agreement
or any other Loan Document, shall at any time prove to have been incorrect or
misleading in any material respect when furnished or made or deemed made.
(d) Material Extension of Credit Cross-Default.
(i) Recourse Indebtedness. Any of the following events shall
occur with respect to any Extension of Credit that is Recourse
Indebtedness, owing by Borrower, Parent or any Significant Subsidiary,
and having an aggregate outstanding principal amount of $30,000,000 or
more:
(A) Failure to Pay. Borrower, Parent or any
Significant Subsidiary shall fail to pay when due and payable
the principal of, or interest on, such Extension of Credit; or
(B) Acceleration. The maturity of such Extension of
Credit shall have been accelerated in accordance with the
provisions of any indenture, contract or instrument
evidencing, providing for the creation of or otherwise
concerning such Extension of Credit; or
(C) Mandatory Repurchase. Borrower, Parent or any
Significant Subsidiary shall have been required to prepay or
repurchase, prior to the stated maturity thereof, such
Extension of Credit in accordance with the provisions of any
indenture, contract or instrument evidencing, providing for
the creation of or otherwise concerning such Extension of
Credit.
(ii) Nonrecourse Indebtedness. Any of the following events
shall occur with respect to any Extension of Credit that is Nonrecourse
Indebtedness, owing by Borrower, Parent or any Significant Subsidiary,
and having an aggregate outstanding principal amount of $200,000,000 or
more:
(A) Failure to Pay. Borrower, Parent or any
Significant Subsidiary shall fail to pay when due and payable
the principal of, or interest on, such Extension of Credit; or
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(B) Acceleration. The maturity of such Extension of
Credit shall have been accelerated in accordance with the
provisions of any indenture, contract or instrument
evidencing, providing for the creation of or otherwise
concerning such Extension of Credit; or
(C) Mandatory Repurchase. Borrower, Parent or any
Significant Subsidiary shall have been required to prepay or
repurchase, prior to the stated maturity thereof, such
Extension of Credit in accordance with the provisions of any
indenture, contract or instrument evidencing, providing for
the creation of or otherwise concerning such Extension of
Credit.
(e) Voluntary Bankruptcy Proceeding. Any Loan Party, the Parent or any
Significant Subsidiary shall: (i) commence a voluntary case under the Bankruptcy
Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter
in effect); (ii) file a petition seeking to take advantage of any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; (iii) consent
to, or fail to contest in a timely and appropriate manner, any petition filed
against it in an involuntary case under such bankruptcy laws or other Applicable
Laws or consent to any proceeding or action described in the immediately
following subsection; (iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of possession
by, a receiver, custodian, trustee, or liquidator of itself or of a substantial
part of its property, domestic or foreign; (v) admit in writing its inability to
pay its debts as they become due; (vi) make a general assignment for the benefit
of creditors; (vii) make a conveyance fraudulent as to creditors under any
Applicable Law; or (viii) take any corporate, partnership or similar action for
the purpose of effecting any of the foregoing.
(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Loan Party, the Parent or any Significant Subsidiary in
any court of competent jurisdiction seeking: (i) relief under the Bankruptcy
Code of 1978, as amended or other federal bankruptcy laws (as now or hereafter
in effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator
or the like of such Person, or of all or any substantial part of the assets,
domestic or foreign, of such Person, and in the case of either clause (i) or
(ii) such case or proceeding shall continue undismissed or unstayed for a period
of 90 consecutive calendar days, or an order granting the relief requested in
such case or proceeding (including, but not limited to, an order for relief
under such Bankruptcy Code or such other federal bankruptcy laws) shall be
entered.
(g) Revocation of Loan Documents. Any Loan Party or the Parent shall
(or shall attempt to) disavow, revoke or terminate any Loan Document to which it
is a party or shall otherwise challenge or contest in any action, suit or
proceeding in any court or before any Governmental Authority the validity or
enforceability of any Loan Document.
(h) Judgment. A judgment or order for the payment of money shall be
entered against any Loan Party, the Parent or any Significant Subsidiary, by any
court or other tribunal and (i) such judgment or order shall continue for a
period of 60 days without being paid stayed or dismissed through appropriate
appellate proceedings and (ii) either (A) the amount for which insurance has not
been acknowledged in writing by the applicable insurance carrier exceeds,
individually or together with all other such judgments or orders entered against
the Loan Parties and Significant Subsidiaries, $25,000,000 or (B) such judgment
or order could reasonably be expected to have a Material Adverse Effect.
(i) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of any Loan Party, the Parent or
any Significant Subsidiary, which exceeds, individually or together with all
other such warrants, writs, executions and processes, $25,000,000 and such
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warrant, writ, execution or process shall not be paid, discharged, vacated,
stayed or bonded for a period of 60 days; provided, however, that if a bond has
been issued in favor of the claimant or other Person obtaining such warrant,
writ, execution or process, the issuer of such bond shall execute a waiver or
subordination agreement in form and substance satisfactory to the Agent pursuant
to which the issuer of such bond subordinates its right of reimbursement,
contribution or subrogation to the Obligations and waives or subordinates any
Lien it may have on the assets of any Loan Party or the Parent.
(j) Loan Documents. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents.
(k) Change of Control/Change in Management.
(i) any Person (or two or more Persons acting in concert)
shall acquire "beneficial ownership" within the meaning of Rule 13d-3
of the Securities and Exchange Act of 1934, as amended, of the capital
stock or securities of the Parent representing 35% or more of the
aggregate voting power of all classes of capital stock and securities
of the Parent entitled to vote for the election of directors ("Parent
Voting Stock"); provided, however, this clause shall not apply to any
Parent Voting Stock acquired after the date hereof by a Person as a
result of the conversion of limited partnership interests in the
Borrower into Parent Voting Stock in accordance with Borrower's
partnership agreement;
(ii) during any twelve-month period (whether before or after
the Agreement Date), individuals who at the beginning of such period
were directors of the Parent shall cease for any reason (other than
death or mental or physical disability) to constitute a majority of the
board of directors of the Parent;
(iii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall cease for any reason to be
principally involved in the senior management of the Borrower, the
Management Company and the Parent and (A) 180 days following such
cessation the Borrower, the Management Company and the Parent shall
have failed to replace the resulting vacancy with an individual (or
individuals) reasonably acceptable to the Requisite Lenders and (B) at
least two of ▇▇▇▇ ▇. ▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇, ▇▇. shall not be principally involved in the
senior management of the Borrower, the Management Company and the
Parent;
(iv) the Principals shall cease to beneficially own, directly
or indirectly, in the aggregate, at least 10.0% of the outstanding
common stock of the Parent or at least 10.0% of the outstanding
operating units of the Borrower (such ownership percentages to be
adjusted to reflect the effect of any division, reclassification, stock
or equity dividend and any other similar dilutive events);
(v) the Principals, the Parent or any combination thereof
shall cease to beneficially own, directly or indirectly, in the
aggregate, capital stock or securities of the Management Company
representing more than 50% of the aggregate voting power of all classes
of capital stock and securities of the Management Company entitled to
vote for the election of directors; provided, however, the provisions
of this clause shall no longer apply if the Management Company shall
have merged with the Borrower or the Parent; or
(vi) the general partner of the Borrower shall cease to be a
Wholly Owned Subsidiary of the Parent;
49
(l) Damage; Strike; Casualty. Any material damage to, or loss, theft or
destruction of, any Property, whether or not insured, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than 30 consecutive days beyond the coverage
period of any applicable business interruption insurance, the cessation or
substantial curtailment of revenue producing activities of the Borrower or its
Subsidiaries taken as a whole but only if any such event or circumstance could
reasonably be expected to have a material adverse effect on the Properties taken
as a whole.
Section 10.2. Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facility.
(i) Automatic. Upon the occurrence of an Event of Default specified in
Sections 10.1.(e) or 10.1.(f), (1)(A) the principal of, and all accrued interest
on, the Advances and the Notes at the time outstanding and (B) all of the other
Obligations of the Borrower, including, but not limited to, the other amounts
owed to the Lenders and the Agent under this Agreement, the Notes or any of the
other Loan Documents shall become immediately and automatically due and payable
by the Borrower without presentment, demand, protest, or other notice of any
kind, all of which are expressly waived by the Borrower, and (2) the Commitments
and the obligation of the Lenders to make Advances hereunder shall all
immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall exist, the Agent
may, and at the direction of the Requisite Lenders shall: (1) declare (A) the
principal of, and accrued interest on, the Advances and the Notes at the time
outstanding and (B) all of the other Obligations, including, but not limited to,
the other amounts owed to the Lenders and the Agent under this Agreement, the
Notes or any of the other Loan Documents to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived
by the Borrower, and (2) terminate the Commitments and the obligation of the
Lenders to make Advances hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise any and all of its rights under any and
all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise all other rights and remedies it may
have under any Applicable Law.
Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Sections 10.1(e) or
10.1.(f), the Commitments shall immediately and automatically terminate.
Section 10.4. Permitted Deficiency.
(a) Generally. Notwithstanding anything to the contrary set forth
herein, none of the following events shall constitute a Default or Event of
Default, so long as the conditions of the immediately following subsection (b)
are satisfied:
(i) failure of the Borrower or any other Person owning a
Property to:
(A) keep such Property or any portion thereof in
the condition required under Section 7.3 of this
Agreement;
50
(B) to pay any Lien or other encumbrances on any
portion of such Property in the manner required
under Section 7.5 of this Agreement; or
(C) to comply with requirements of Applicable Law
applicable to any portion of such Property as
required under Section 7.2 of this Agreement; or
(ii) the existence of any non-consensual Lien on any of the
Property not permitted by Section 7.5. of this
Agreement .
(b) The effectiveness of the immediately preceding subsection is
subject to satisfaction of all of the following conditions:
(i) the sum of the following amounts (such amounts being
the "Permitted Deficiency") does not exceed
$25,000,000.00:
(A) the cost of correcting all failures described in
the immediately preceding subsection (a)(i), as
determined by Agent in its reasonable
discretion; and
(B) the amount secured by Liens described in
immediately preceding subsection (a)(ii).
(ii) None of the circumstances giving rise to the Permitted
Deficiency would otherwise constitute a Default or
Event of Default but for the application of this
Section; and
(iii) The Borrower is taking steps to eliminate the
circumstances giving rise to the Permitted Deficiency
in a diligent manner, and in all events eliminates (or
bonds off to the reasonable satisfaction of the Agent)
each such circumstances prior to the earlier of (A) 60
days after receipt of notice of the existence of such
circumstances from the Agent, or (B) the date which is
5 days prior to the date on which any effected
Property to which any such circumstance relates could
be sold for nonpayment.
Section 10.5. Marshaling; Payments Set Aside.
Neither the Agent nor any Lender shall be under any obligation to
marshal any assets in favor of any Loan Party or any other party or against or
in payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Agent and/or any Lender, or the Agent and/or
any Lender enforce their security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligations or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefore, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
Section 10.6. Allocation of Proceeds.
If an Event of Default exists and maturity of any of the Obligations
has been accelerated, all payments received by the Agent under any of the Loan
Documents, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower or any other Loan Party hereunder or
thereunder, shall be applied in the following order and priority:
51
(a) amounts due to the Agent and the Lenders in respect of Fees and
expenses due under Section 12.2.;
(b) payments of interest on principal of Advances, to be applied for
the ratable benefit of the Lenders, in such order as the Lenders may determine
in their sole discretion;
(c) payments of principal of Advances, to be applied for the ratable
benefit of the Lenders, in such order as the Lenders may determine in their sole
discretion;
(d) amounts due to the Agent and the Lenders pursuant to Sections 11.7.
and 12.9.;
(e) payments of all other amounts due under any of the Loan Documents,
if any, to be applied for the ratable benefit of the Lenders; and
(f) any amount remaining after application as provided above, shall be
paid to the Borrower or whomever else may be legally entitled thereto.
Section 10.7. Performance by Agent.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may, but shall not be
obligated to, perform or attempt to perform such covenant, duty or agreement on
behalf of the Borrower after the expiration of any cure or grace periods set
forth herein. In such event, the Borrower shall, at the request of the Agent,
promptly pay any amount reasonably expended by the Agent in such performance or
attempted performance to the Agent, together with interest thereon at the
applicable Default Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, neither the Agent nor any Lender shall have any
liability or responsibility whatsoever for the performance of any obligation of
the Borrower under this Agreement or any other Loan Document.
Section 10.8. Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the Agent and
the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE XI. THE AGENT
Section 11.1. Authorization and Action.
Each Lender hereby irrevocably appoints and authorizes the Agent to
take such action as contractual representative on such Lender's behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender hereby agrees that, except
as otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
deemed to have been authorized and shall be binding upon all of the Lenders.
Nothing herein shall be construed to deem the Agent a trustee or fiduciary for
52
any Lender or to impose on the Agent duties or obligations other than those
expressly provided for herein. Without limiting the generality of the foregoing,
the use of the terms "Agent", "agent" and similar terms in the Loan Documents
with reference to the Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any Applicable
Law. Instead, use of such terms is merely a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties. The Agent shall deliver to each Lender,
promptly upon receipt thereof by the Agent, copies of each of the financial
statements, certificates, notices and other documents delivered to the Agent
pursuant to Article VIII. The Agent will also furnish to any Lender, upon the
request of such Lender, a copy (or, where appropriate, an original) of any
document, instrument, agreement, certificate or notice furnished to the Agent by
the Borrower, the Parent, any Loan Party or any other Affiliate of the Borrower,
pursuant to this Agreement or any other Loan Document not already delivered to
such Lender pursuant to the terms of this Agreement or any such other Loan
Document. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of the
Obligations), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders (or all of the Lenders if explicitly required under any
other provision of this Agreement), and such instructions shall be binding upon
all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or Applicable
Law. Not in limitation of the foregoing, the Agent shall not exercise any right
or remedy it may have under any Loan Document upon the occurrence of a Default
or an Event of Default if the Requisite Lenders have directed the Agent not to
do so. Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of the Requisite Lenders, or where applicable, all the
Lenders.
Section 11.2. Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or not taken by it
under or in connection with this Agreement or any other Loan Document, except
for its or their own gross negligence or willful misconduct in connection with
its duties expressly set forth herein or therein. Without limiting the
generality of the foregoing, the Agent: may consult with legal counsel
(including its own counsel or counsel for the Borrower, any other Loan Party or
the Parent), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts.
Neither the Agent nor any of its directors, officers, agents, employees or
counsel: (a) makes any warranty or representation to any Lender or any other
Person and shall be responsible to any Lender or any other Person for any
statement, warranty or representation made or deemed made by the Borrower, any
other Loan Party, the Parent or any other Person in or in connection with this
Agreement or any other Loan Document; (b) shall have any duty to ascertain or to
inquire as to the performance (other than the payment of principal, interest and
fees due from Borrower) or observance of any of the terms, covenants or
conditions of this Agreement or any other Loan Document or the satisfaction of
any conditions precedent under this Agreement or any Loan Document on the part
of the Borrower or other Persons or inspect the property, books or records of
the Borrower or any other Person; (c) shall be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document, or any other instrument or
document furnished pursuant thereto; (d) shall have any liability in respect of
any recitals, statements, certifications, representations or warranties
contained in any of the Loan Documents or any other document, instrument,
agreement, certificate or statement delivered in connection therewith; and (e)
53
shall incur any liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telephone, telecopy or electronic mail)
believed by it to be genuine and signed, sent or given by the proper party or
parties. The Agent may execute any of its duties under the Loan Documents by or
through agents, employees or attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.
Section 11.3. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default (other than a Default or Event of
Default based on Borrower's failure to pay any principal , interest or fees due
hereunder or under any other Loan Document as and when due) unless the Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing with reasonable specificity such Default or Event of Default and
stating that such notice is a "notice of default." If any Lender (excluding the
Lender which is also serving as the Agent) becomes aware of any Default or Event
of Default, it shall promptly send to the Agent such a "notice of default".
Further, if the Agent receives such a "notice of default," the Agent shall give
prompt notice thereof to the Lenders.
Section 11.4. ▇▇▇▇▇ Fargo as Lender.
▇▇▇▇▇ Fargo, as a Lender, shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include ▇▇▇▇▇ Fargo in each case in
its individual capacity. ▇▇▇▇▇ Fargo and its affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, any other Loan Party, the Parent or
any other affiliate thereof as if it were any other bank and without any duty to
account therefore to the other Lenders. Further, the Agent and any affiliate may
accept fees and other consideration from the Borrower for services in connection
with this Agreement and otherwise without having to account for the same to the
other Lenders. The Lenders acknowledge that, pursuant to such activities, ▇▇▇▇▇
Fargo or its affiliates may receive information regarding the Parent, the
Borrower, other Loan Parties, other Subsidiaries and other Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Person) and acknowledge that the Agent shall be under no obligation to provide
such information to them.
Section 11.5. Approvals of Lenders.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials provided to the Agent by the Borrower in respect
of the matter or issue to be resolved, and (d) shall include the Agent's
recommended course of action or determination in respect thereof. Unless a
Lender shall give written notice to the Agent that it specifically objects to
the recommendation or determination of the Agent (together with a written
explanation, in reasonable detail, of the reasons behind such objection) within
10 Business Days (or such lesser or greater period as may be specifically
required under the express terms of the Loan Documents) of receipt of such
communication, such Lender shall be deemed to have conclusively approved of or
consented to such recommendation or determination.
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Section 11.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or warranties
to such Lender and that no act by the Agent hereafter taken, including any
review of the affairs of the Parent, the Borrower, any other Loan Party or any
other Subsidiary or Affiliate, shall be deemed to constitute any such
representation or warranty by the Agent to any Lender. Each Lender acknowledges
that it has, independently and without reliance upon the Agent, any other Lender
or counsel to the Agent, or any of their respective officers, directors,
employees, agents or counsel, and based on the financial statements of the
Parent, the Borrower, the other Loan Parties, the other Subsidiaries and other
Affiliates, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Parent, the Borrower, the other Loan Parties, the
other Subsidiaries and other Persons, its review of the Loan Documents, the
legal opinions required to be delivered to it hereunder, the advice of its own
counsel and such other documents and information as it has deemed appropriate,
made its own credit and legal analysis and decision to enter into this Agreement
and the transactions contemplated hereby. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent, any other Lender or
counsel to the Agent or any of their respective officers, directors, employees
and agents, and based on such review, advice, documents and information as it
shall deem appropriate at the time, continue to make its own decisions in taking
or not taking action under the Loan Documents. The Agent shall not be required
to keep itself informed as to the performance (other than the payment of
principal, interest and fees due from Borrower) or observance by the Parent, the
Borrower or any other Loan Party of the Loan Documents or any other document
referred to or provided for therein or to inspect the properties or books of, or
make any other investigation of, the Parent, the Borrower, any other Loan Party
or any other Subsidiary. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Parent, the Borrower, any other Loan Party or any other
Affiliate thereof which may come into possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or other Affiliates.
Each Lender acknowledges that the Agent's legal counsel in connection with the
transactions contemplated by this Agreement is only acting as counsel to the
Agent and is not acting as counsel to such Lender.
Section 11.7. Indemnification of Agent.
Regardless of whether the transactions contemplated by this Agreement
and the other Loan Documents are consummated, each Lender agrees to indemnify
the Agent (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) pro rata in accordance with such Lender's
respective Commitment Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against the Agent (in its capacity as
Agent but not as a "Lender") in any way relating to or arising out of the Loan
Documents, any transaction contemplated hereby or thereby or any action taken or
omitted by the Agent under the Loan Documents (collectively, "Indemnifiable
Amounts"); provided, however, that no Lender shall be liable for any portion of
such Indemnifiable Amounts to the extent resulting from the Agent's gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment; provided, however, that no
action taken in accordance with the directions of the Requisite Lenders (or all
of the Lenders if expressly required hereunder) shall be deemed to constitute
gross negligence or willful misconduct for purposes of this Section. Without
limiting the generality of the foregoing, each Lender agrees to reimburse the
Agent (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) promptly upon demand for its ratable share
of any expenses (including the reasonable fees and expenses of the counsel to
the Agent) incurred by the Agent in connection with the preparation,
negotiation, execution, administration, or enforcement (whether through
negotiations, legal proceedings, or otherwise) of, or legal advice with respect
55
to the rights or responsibilities of the parties under, the Loan Documents, any
suit or action brought by the Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any "lender liability" suit or claim brought
against the Agent and/or the Lenders, and any claim or suit brought against the
Agent and/or the Lenders arising under any Environmental Laws. Such expenses
(including counsel fees) shall be advanced by the Lenders on the request of the
Agent notwithstanding any claim or assertion that the Agent is not entitled to
indemnification hereunder upon receipt of an undertaking by the Agent that the
Agent will reimburse the Lenders if it is actually and finally determined by a
court of competent jurisdiction that the Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Advances and all other amounts payable hereunder or under the other Loan
Documents and the termination of this Agreement. If the Borrower shall reimburse
the Agent for any Indemnifiable Amount following payment by any Lender to the
Agent in respect of such Indemnifiable Amount pursuant to this Section, the
Agent shall share such reimbursement on a ratable basis with each Lender making
any such payment.
Section 11.8. Property Matters.
The Agent shall have no obligation whatsoever to the Lenders or to any
other Person to assure that the Property is cared for, protected or insured, it
being understood and agreed that in respect of the Property, or any act,
omission or event related thereto, the Agent may act in any manner it may deem
appropriate, in its sole discretion, and that Agent shall have no duty or
liability whatsoever to the Lenders, except to the extent resulting from its
gross negligence or willful misconduct.
Section 11.9. Successor Agent.
The Agent may resign at any time as Agent under the Loan Documents by
giving notice thereof to the Lenders and the Borrower. In the event of a
material breach of its duties hereunder, the Agent may be removed as Agent under
the Loan Documents at any time by all of the Lenders (other than the Lender then
acting as Agent) and the Borrower upon 30-day's prior notice. Upon any such
resignation or removal, the Requisite Lenders (which, in the case of the removal
of the Agent as provided in the immediately preceding sentence, shall be
determined without regard to the Commitment of the Lender then acting as Agent)
shall have the right to appoint a successor Agent which appointment shall,
provided no Default or Event of Default exists, be subject to the Borrower's
approval, which approval shall not be unreasonably withheld or delayed. If no
successor Agent shall have been so appointed in accordance with the immediately
preceding sentence, and shall have accepted such appointment, within 30 days
after the current Agent's giving of notice of resignation or the Lender's
removal of the current Agent, then the current Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a Lender, if any Lender shall
be willing to serve, and otherwise shall be an Eligible Assignee. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the current Agent, and the current
Agent shall be discharged from its duties and obligations as Agent under the
Loan Documents. After any Agent's resignation or removal hereunder as Agent, the
provisions of this Article XI. shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under the Loan
Documents. Notwithstanding anything contained herein to the contrary, the Agent
may assign its rights and duties under the Loan Documents to any of its
affiliates by giving the Borrower and each Lender prior notice.
Section 11.10. Titled Agents.
The Syndication Agent, each of the Co-Lead Arrangers and each of the
Documentation Agents (each a "Titled Agent"), in such capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Advances, nor any duties as
an agent hereunder for the Lenders. The titles given to the Titled Agents are
solely honorific and imply no fiduciary responsibility on the part of the Titled
56
Agents to the Agent, any Lender, the Parent, the Borrower or any other Loan
Party and the use of such titles does not impose on the Titled Agents any duties
or obligations greater than those of any other Lender or entitle the Titled
Agents to any rights other than those to which any other Lender is entitled.
ARTICLE XII. MISCELLANEOUS
Section 12.1. Notices.
Unless otherwise provided herein, all notices and other communications
provided for hereunder shall be in writing and shall be mailed, telecopied or
delivered as follows:
If to the Borrower:
CBL & Associates Limited Partnership
c/o CBL & Associates Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
with an informational copy to:
CBL & Associates Limited Partnership
c/o CBL & Associates Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Finance Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent or a Lender:
To the Agent's or such Lender's address or telecopy number, as
applicable, set forth on its signature page hereto or in the
applicable Assignment and Assumption Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section; provided, a Lender shall only be required to give notice of any such
other address to the Agent and the Borrower. All such notices and other
communications shall be effective (i) if mailed, when received; (ii) if
telecopied, upon confirmation of transmission; (iii) if hand delivered, when
delivered and (iv) if by overnight courier service, when delivered.
Notwithstanding the immediately preceding sentence, all notices or
communications to the Agent or any Lender under Article II shall be effective
only when actually received. Neither the Agent nor any Lender shall incur any
liability to the Parent, the Borrower or any other Loan Party (nor shall the
Agent incur any liability to the Lenders) for acting upon any notice referred to
in this Agreement which the Agent or such Lender, as the case may be, believes
in good faith to have been given by a Person authorized to deliver such notice
or for otherwise acting in good faith hereunder. In addition to the Agent's
Lending Office, the Borrower shall send copies of the notices described in
Article II. to the following address of the Agent:
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▇▇▇▇▇ Fargo Bank, National Association
Disbursement and Operations Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Disbursement Administrator
Telecopy Number:..(▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number:.(▇▇▇) ▇▇▇-▇▇▇▇
Section 12.2. Expenses.
The Borrower agrees (a) to pay or reimburse the Agent for all of the
Agent's reasonable costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expense and
reasonable travel expenses related to closing), and the consummation and
syndication of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or reimburse the
Agent and the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under the Loan
Documents, including the reasonable fees and disbursements of counsel retained
by the Agent and of one law firm retained by the Lenders, and any payments in
indemnification or otherwise payable by the Lenders to the Agent pursuant to the
Loan Documents, (c) to pay, and indemnify and hold harmless the Agent and the
Lenders from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any failure to pay or delay in paying,
documentary, stamp, intangible, excise and other similar taxes, if any, which
may be payable or determined to be payable in connection with the execution,
delivery, recording or enforcement of any of the Loan Documents, or consummation
of any amendment, supplement or modification of, or any waiver or consent under
or in respect of, any Loan Document, and (d) to the extent not already covered
by any of the preceding subsections, to pay the reasonable fees and
disbursements of counsel to the Agent and any Lender incurred in connection with
the representation of the Agent or such Lender in any matter relating to or
arising out of any bankruptcy or other proceeding of the type described in
Sections 10.1.(e) or 10.1.(f), including, without limitation (i) any motion for
relief from any stay or similar order, (ii) the negotiation, preparation,
execution and delivery of any document relating to the Obligations and (iii) the
negotiation and preparation of any debtor-in-possession financing or any plan of
reorganization of the Parent, the Borrower or any other Loan Party, whether
proposed by the Parent, the Borrower, such Loan Party, the Lenders or any other
Person, and whether such fees and expenses are incurred prior to, during or
after the commencement of such proceeding or the confirmation or conclusion of
any such proceeding.
Section 12.3. Setoff.
Each Lender hereby waives any right of set-off against the Obligations
it has with respect to any deposit account of the Borrower or any other Loan
Party maintained with such Lender or any other account or property of the
Borrower or any other Loan Party held by such Lender; provided however, that
this waiver is not intended, and shall not be deemed, to waive any right of
set-off (a) any Lender has with respect to any account required to be maintained
pursuant to this Agreement or any other Loan Document or (b) arising other than
pursuant to this Agreement or the other Loan Documents.
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE PARENT, THE AGENT OR ANY OF THE LENDERS WOULD
BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN
DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT, THE BORROWER AND THE PARENT
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HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY
KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY
OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY
OTHER LOAN DOCUMENT OR IN CONNECTION WITH ANY COLLATERAL OR ANY LIEN THEREIN OR
BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR
AMONG THE BORROWER, THE PARENT, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR
NATURE.
(b) EACH OF THE BORROWER, THE PARENT, THE AGENT AND EACH LENDER HEREBY
AGREES THAT THE FEDERAL DISTRICT COURT OF THE NORTHERN DISTRICT OF GEORGIA OR,
AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN ▇▇▇▇▇▇ COUNTY, GEORGIA,
SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR
AMONG THE BORROWER, THE PARENT, THE AGENT OR ANY OF THE LENDERS, PERTAINING
DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE ADVANCES, THE NOTES OR ANY OTHER
LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM OR THE COLLATERAL.
THE BORROWER, THE PARENT, THE AGENT AND EACH OF THE LENDERS EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND
EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN
THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE
AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY
JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE ADVANCES AND ALL
OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE
TERMINATION OF THIS AGREEMENT.
Section 12.5. Successors and Assigns.
(a) Generally. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or otherwise transfer any
of is rights under this Agreement without the prior written consent of all the
Lenders (and any such assignment or transfer to which all of the Lenders have
not consented shall be void).
(b) Participations. Any Lender may at any time grant to an affiliate of
such Lender, or one or more banks or other financial institutions (each a
"Participant" ) participating interests in its Commitment or the Obligations
owing to such Lender. Except as otherwise provided in Section 12.8., no
Participant shall have any rights or benefits under this Agreement or any other
Loan Document. In the event of any such grant by a Lender of a participating
interest to a Participant, such Lender shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
59
any amendment, modification or waiver of any provision of this Agreement;
provided however, such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) increase such Lender's
Commitment, (ii) extend the date fixed for the payment of principal on the
Advances or portions thereof owing to such Lender, or (iii) reduce the rate at
which interest is payable thereon. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Assignments. Any Lender may with the prior written consent of the
Agent and the Borrower (which consent in each case, shall not be unreasonably
withheld or delayed) at any time assign to one or more Eligible Assignees (each
an "Assignee") all or a portion of its rights and obligations under this
Agreement and the Notes; provided, however, (i) no such consent by the Borrower
shall be required (x) if a Default or Event of Default shall exist or (y) in the
case of an assignment to another Lender or an affiliate of another Lender; (ii)
any partial assignment shall be in an amount at least equal to $10,000,000 and
after giving effect to such assignment the assigning Lender retains a
Commitment, or if the Commitments have been terminated, holds Notes having an
aggregate outstanding principal balance, of at least $10,000,000, (iii) each
such assignment shall be effected by means of an Assignment and Assumption
Agreement; and (iv) so long as the Commitments remain in effect, after giving
effect to any such assignment by the Lender then acting as the Agent, the Lender
then acting as Agent shall retain a Commitment greater than or equal to the
Commitment of each other Lender as of the Effective Date unless the Requisite
Lenders consent otherwise (which consent shall not be unreasonably withheld or
delayed). Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be
deemed to be a Lender party to this Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such Assignment and
Assumption Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so the new Notes are issued to the
Assignee and such transferor Lender, as appropriate. In connection with any such
assignment, the transferor Lender shall pay to the Agent an administrative fee
for processing such assignment in the amount of $3,500. Anything in this Section
to the contrary notwithstanding, no Lender may assign or participate any
interest in any Advance held by it hereunder to the Borrower, or any of its
respective affiliates or Subsidiaries.
(d) Federal Reserve Bank Assignments. In addition to the assignments
and participations permitted under the foregoing provisions of this Section, and
without the need to comply with any of the formal or procedural requirements of
this Section, any Lender may at any time and from time to time, pledge and
assign all or any portion of its rights under all or any of the Loan Documents
to a Federal Reserve Bank; provided that no such pledge of assignment shall
release such Lender from its obligation thereunder.
(e) Information to Assignee, Etc. A Lender may furnish any information
concerning the Parent, the Borrower, any Subsidiary or any other Loan Party in
the possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants).
Section 12.6. Amendments and Waivers.
(a) Generally. Except as otherwise expressly provided in this
Agreement, (i) any consent or approval required or permitted by this Agreement
or in any Loan Document to be given by the Lenders may be given, (ii) any term
of this Agreement or of any other Loan Document (other than any fee letter
solely between the Borrower and the Agent) may be amended, (iii) the performance
or observance by the Parent, the Borrower or any other Loan Party of any terms
of this Agreement or such other Loan Document (other than any fee letter solely
between the Borrower and the Agent) may be waived, and (iv) the continuance of
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any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Requisite Lenders (or the Agent at the written
direction of the Requisite Lenders), and, in the case of an amendment to any
Loan Document, the written consent of each Loan Party which is party thereto.
(b) Unanimous Consent. Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing, and signed by all of the Lenders (or
the Agent at the written direction of the Lenders), do any of the following:
(i) increase the Commitments of the Lenders (excluding
any increase as a result of an assignment of Commitments permitted under Section
12.5 or any increase of a Lender's Commitment effected in accordance with
Section 2.10), or subject the Lenders to any additional obligations;
(ii) reduce the principal of, or interest rates that have
accrued or that will be charged on the outstanding principal amount of, any
Advances or other Obligations;
(iii) reduce the amount of any Fees payable to the Lenders
hereunder; provided, however, the Agent shall be authorized on behalf of all the
Lenders, without the necessity of any notice to, or further consent from, any
Lender, to waive the imposition of the late fees provided in Section 2.6., up to
a maximum of 2 times per calendar year;
(iv) postpone any date fixed for any payment of principal
of, or interest on, any Advances or for the payment of Fees or any other
Obligations including, without limitation, extend the Termination Date
(excluding any extension of the Termination Date effected in accordance with
Section 2.11);
(v) change the Commitment Percentages (excluding any
change as a result of an assignment of Commitments permitted under Sections 2.10
or 12.5);
(vi) amend this Section or amend the definitions of the
terms used in this Agreement or the other Loan Documents insofar as such
definitions affect the provisions contained in this Section;
(vii) modify the definition of the term "Requisite Lenders"
or modify in any other manner the number or percentage of the Lenders required
to make any determinations or waive any rights hereunder or to modify any
provision hereof;
(viii) release the Parent from its obligations under the
Parent Guaranty;
(ix) waive a Default or Event of Default under Section
10.1.(a); or
(x) amend Section 9.1.(b) or Section 9.1(k) or modify the
definition of the terms "Adjusted Asset Value," "EBITDA", "Gross Asset Value",
"Indebtedness", "Leverage Ratio" or "Total Liabilities".
(c) Amendment of Duties of Agent. No amendment, waiver or consent
unless in writing and signed by the Agent, in addition to the Lenders required
hereinabove to take such action, shall affect the rights or duties of the Agent
under this Agreement or any of the other Loan Documents.
(d) Amendments and Waivers Generally. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Any Event of Default occurring hereunder shall continue to
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exist until such time as such Event of Default is waived in writing in
accordance with the terms of this Section, notwithstanding any attempted cure or
other action by the Parent, the Borrower, any other Loan Party or any other
Person subsequent to the occurrence of such Event of Default. Except as
otherwise explicitly provided for herein or in any other Loan Document, no
notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
Section 12.7. Nonliability of Agent and Lenders.
The relationship between the Borrower, on the one hand, and the Lenders
and the Agent, on the other hand, shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower and no provision in this Agreement or in any of the other Loan
Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Agent or any Lender to
any Lender, the Parent, the Borrower, any Subsidiary or any other Loan Party.
Neither the Agent nor any Lender undertakes any responsibility to the Borrower
or the Parent to review or inform the Borrower or the Parent of any matter in
connection with any phase of the business or operations of the Borrower, the
Parent or any of their respective Subsidiaries or Affiliates.
Section 12.8. Confidentiality.
Except as otherwise provided by Applicable Law, the Agent and each
Lender shall utilize all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential or
proprietary by the Borrower or the Parent in accordance with its customary
procedure for handling confidential information of this nature and in accordance
with safe and sound banking practices but in any event may make disclosure: (a)
to any of their respective affiliates (provided any such affiliate shall agree
to keep such information confidential in accordance with the terms of this
Section); (b) as reasonably requested by any bona fide Assignee, Participant or
other transferee in connection with the contemplated transfer of any Commitment,
Advance or participations therein as permitted hereunder (provided they shall
agree to keep such information confidential in accordance with the terms of this
Section); (c) as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process or in connection with any
legal proceedings; (d) to the Agent's or such Lender's independent auditors and
other professional advisors (provided they shall be notified of the confidential
nature of the information); (e) if an Event of Default exists, to any other
Person, in connection with the exercise by the Agent or the Lenders of rights
hereunder or under any of the other Loan Documents; and (f) to the extent such
information (x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Agent or any Lender on a
nonconfidential basis from a source other than the Borrower or any Affiliate.
Section 12.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, agents, employees and counsel (each referred to
herein as an "Indemnified Party") from and against any and all losses, costs,
claims, damages, liabilities, deficiencies, judgments or expenses of every kind
and nature (including, without limitation, amounts paid in settlement, court
costs and the fees and disbursements of counsel incurred in connection with any
litigation, investigation, claim or proceeding or any advice rendered in
connection therewith, but excluding losses, costs, claims, damages, liabilities,
deficiencies, judgments or expenses indemnification in respect of which is
specifically covered by Section 3.9. or 4.1. or expressly excluded from the
coverage of such Sections) incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the foregoing
referred to herein as an "Indemnity Proceeding") which is in any way related to:
(i) this Agreement or any other Loan Document or the transactions contemplated
62
thereby; (ii) the making of any Advances hereunder; (iii) any actual or proposed
use by the Borrower of the proceeds of the Advances; (iv) the Agent's or any
Lender's entering into this Agreement; (v) the fact that the Agent and the
Lenders have established the credit facility evidenced hereby in favor of the
Borrower; (vi) the fact that the Agent and the Lenders are creditors of the
Borrower and have or are alleged to have information regarding the financial
condition, strategic plans or business operations of the Borrower and the
Subsidiaries; (vii) the fact that the Agent and the Lenders are material
creditors of the Borrower and are alleged to influence directly or indirectly
the business decisions or affairs of the Borrower and the Subsidiaries or their
financial condition; (viii) the exercise of any right or remedy the Agent or the
Lenders may have under this Agreement or the other Loan Documents including, but
not limited to, the foreclosure upon, or seizure of, any collateral or the
exercise of any other rights of a secured party; provided, however, that the
Borrower shall not be obligated to indemnify any Indemnified Party as set forth
above for any acts or omissions of such Indemnified Party in connection with
matters described in this clause (viii) that constitute gross negligence or
willful misconduct; or (ix) any violation or non-compliance by the Borrower or
any Subsidiary of any Applicable Law (including any Environmental Law)
including, but not limited to, any Indemnity Proceeding commenced by (A) the
Internal Revenue Service or state taxing authority or (B) any Governmental
Authority or other Person under any Environmental Law, including any Indemnity
Proceeding commenced by a Governmental Authority or other Person seeking
remedial or other action to cause the Borrower or its Subsidiaries (or its
respective properties) (or the Agent and/or the Lenders as successors to the
Borrower) to be in compliance with such Environmental Laws.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all reasonable
costs and expenses of any Indemnified Party in connection with any deposition of
any Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding
arising during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnity Proceeding
covered by this Section and, as provided above, all costs and expenses incurred
by such Indemnified Party shall be reimbursed by the Borrower. No action taken
by legal counsel chosen by an Indemnified Party in investigating or defending
against any such Indemnity Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that (i) if the Borrower is
required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower
has provided evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnity
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnity Proceeding without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed).
(e) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
63
(f) Subject to the immediately following Section 12.10., the Borrower's
obligations hereunder shall survive any termination of this Agreement and the
other Loan Documents and the payment in full in cash of the Obligations, and are
in addition to, and not in substitution of, any of the other obligations set
forth in this Agreement or any other Loan Document to which it is a party.
Section 12.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
none of the Lenders is obligated any longer under this Agreement to make any
Advances and (c) all Obligations (other than obligations which survive as
provided in the following sentence) have been paid and satisfied in full, this
Agreement shall terminate. The indemnities to which the Agent and the Lenders
are entitled under the provisions of Sections 3.9., 4.1., 4.4., 11.7., 12.2. and
12.9. and any other provision of this Agreement and the other Loan Documents,
and the provisions of Section 12.4., shall continue in full force and effect and
shall protect the Agent and the Lenders (i) notwithstanding any termination of
this Agreement, or of the other Loan Documents, against events arising after
such termination as well as before but not for a period in excess of three years
after the date this Agreement terminates in accordance with the preceding
sentence and (ii) at all times after any such party ceases to be a party to this
Agreement with respect to all matters and events existing on or prior to the
date such party ceased to be a party to this Agreement but not for a period in
excess of three years after any such party cease to be a party to this
Agreement.
Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
Section 12.13. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
Section 12.14. Obligations with Respect to Loan Parties.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the Parent or the other Loan Parties as specified herein
shall be absolute and not subject to any defense the Borrower may have that the
Borrower does not control the Parent or such Loan Parties.
Section 12.15. Independence of Covenants.
All covenants hereunder shall be given in any jurisdiction independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
64
Section 12.16. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to
herein embody the final, entire agreement among the parties hereto and supersede
any and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and thereof and
may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
Section 12.17. Construction; Conflict of Terms.
The Agent, each Lender, the Borrower and the Parent acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Agent, the Lenders, the Borrower
and the Parent. In the event of a conflict between the terms and provisions of
this Agreement and the terms and provisions of any of the other Loan Documents,
the terms of this Agreement shall govern.
Section 12.18. Limitation of Liability of Borrower's General Partner.
Subject to the exceptions and qualifications described below, the
General Partner, shall not be personally liable for the payment of the
Obligations. Notwithstanding the foregoing: (a) if an Event of Default occurs,
nothing contained herein shall in any way prevent or hinder the Agent or the
Lenders in the enforcement or foreclosure of any Lien securing any of the
Obligations, or in the pursuit or enforcement of any right, remedy or judgment
against the Borrower or any other Loan Party, or any of their respective assets;
and (b) the General Partner shall be fully liable to the Agent and the Lenders
to the same extent that the General Partner would be liable absent the foregoing
provisions of this Section for fraud or willful misrepresentation by the General
Partner or its Affiliates (to the full extent of losses suffered by the Agent or
any Lender by reason of such fraud or willful misrepresentations)
Section 12.19. Limited Nature of Parent's Obligations.
THE LENDERS AND THE AGENT ACKNOWLEDGE AND AGREE THAT THE PARENT IS JOINING
IN THE EXECUTION OF THIS AGREEMENT SOLELY FOR THE LIMITED PURPOSE OF BEING BOUND
BY THE TERMS OF THE SECTIONS SPECIFICALLY APPLICABLE TO THE PARENT, INCLUDING
SECTIONS 7.1., 7.2., 7.6., 7.10., 7.11., 9.1., 9.3., 9.6. AND 9.7. OF THIS
AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE OCCURRENCE OF ANY
DEFAULT OR EVENT OF DEFAULT UNDER THIS AGREEMENT OR OTHER LOAN DOCUMENT
RESULTING FROM A BREACH BY THE PARENT OF, OR A MISREPRESENTATION BY THE PARENT
UNDER OR IN ANY WAY RELATING TO, ANY OF SUCH SECTIONS SHALL NOT CREATE ANY
PERSONAL LIABILITY ON THE PART OF THE PARENT FOR THE PAYMENT OF THE OBLIGATIONS.
NOTHING CONTAINED IN THIS SECTION IS INTENDED TO LIMIT THE OBLIGATIONS OF THE
PARENT UNDER THE PARENT GUARANTY.
Section 12.20. Limitation of Liability of Borrower's Directors, Officers,
Etc.
The parties hereto acknowledge and agree that no director, officer,
shareholder, employee or agent of the Borrower shall be held to any personal
liability, jointly or severally, for any obligation of, or claim against, the
Borrower.
65
Section 12.21. Replacement of Notes.
In the event of the loss, theft, destruction, total or partial
obliteration, mutilation or inappropriate cancellation of any Note of a Lender,
or the placement of any inappropriate marking upon any such Note, and in the
case of any such loss, theft, destruction or total obliteration, upon delivery
to the Agent on behalf of such Lender of an indemnity agreement reasonably
satisfactory to and at no expense to the Borrower or, in the case of any such
partial obliteration, mutilation, inappropriate cancellation or inappropriate
marking, upon surrendering and cancellation of such Note to the Agent on behalf
of such Lender, the Borrower will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to such Note and dated as of
the date of such Note and upon such execution and delivery all references in
this Agreement to Notes shall be deemed to include such replacement Note.
[Signatures Begin on Following Page]
66
IN WITNESS WHEREOF, the parties hereto have caused this Unsecured
Credit Agreement to be executed by their authorized officers all as of the day
and year first above written.
BORROWER:
CBL & Associates Limited Partnership
By: CBL Holdings I, Inc., its sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
---------------------------------------
Title: Vice Chairman and Chief Financial Officer
-------------------------------------
PARENT:
CBL & Associates Properties, Inc.,
solely for the limited purposes set forth in
Section 12.19.
By: /s/ ▇▇▇▇ ▇. ▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
------------------------------------------
Title: Vice Chairman and Chief Financial Officer
------------------------------------------
[Signatures Continued on Next Page]
67
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Agent, Co-Lead Arranger and as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
--------------------------------------
Commitment Amount:
$100,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Loan Administration
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
68
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent, Co-Lead Arranger and
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: AVP
----------------------------------------
Commitment Amount:
$ 75,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
Keybank REC - Institutional
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
69
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
Commitment Amount:
$ 55,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ - ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
70
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
U.S. BANK NATIONAL
ASSOCIATION, as
Documentation Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Sr. Vice President
--------------------------------------
Commitment Amount:
$ 50,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
71
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: First Vice President
--------------------------------
Commitment Amount:
$ 25,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
72
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
Commitment Amount:
$ 25,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
73
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
SOCIETE GENERALE,
as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Director
-------------------------------
Commitment Amount:
$ 25,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
74
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
UNION BANK OF CALIFORNIA N.A.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
----------------------------------
Commitment Amount:
$ 25,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
75
[Signature Page to Unsecured Credit Agreement dated as of August 27, 2004
--
with CBL & Associates Limited Partnership]
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Vice President
------------------------------------
Commitment Amount:
$ 20,000,000.00
Lending Office (all Types of Advances) and
Address for Notices:
One PNC Plaza, 19th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[End of Signatures]
76
SCHEDULE 2.13
Authorized Representatives
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ - Chairman of the Board and Chief Executive Officer
▇▇▇▇ ▇. ▇▇▇ - Vice Chairman and Chief Financial Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ - President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ - Senior Vice President
▇▇▇▇▇▇▇ W. A. ▇▇▇▇▇▇▇, Jr. - Senior Vice President
77
SCHEDULE 6.1(b)
PARTNERSHIP DATA SHEET
1. Name of Partnership: CBL & Associates Limited Partnership
2. Type of Partnership (Gen. or Ltd.): Limited
3. Original Date of Creation:
Original Agreement of Limited Partnership dated October 29, 1993
4. State of Creation: Delaware
5. Original Certificate of Limited Partnership (filing info: date and place
of filing):
Delaware Secretary of State - July 16, 1993
6. Qualified to Transact Business in Other States (filing info: dates and
places of filing):
Alabama September 27, 1993
Colorado October 19, 1993
Connecticut September 27, 1993
Florida September 24, 1993
Georgia September 21, 1993
Illinois October 14, 1993
Kansas September 27, 1993
Kentucky September 17, 1993
Maine September 21, 1993
Massachusetts September 20, 1993
Michigan September 21, 1993
Mississippi October 1, 1993
Missouri September 30, 1993
New Hampshire October 12, 1993
New York September 10, 1993
North Carolina September 24, 1993
Ohio December 28, 2000
South Carolina October 13, 1993
Tennessee October 13, 1993
Texas October 13, 1993
Virginia September 23, 1993
Wisconsin December 29, 2000
Wyoming September 29, 1993
Note: The following are the assumed names of the Operating Partnership:
Colorado CBL & Associates Limited Partnership (of
Delaware)
78
Georgia CBL & Associates Limited Partnership (of
Delaware)
Missouri CBL & Associates Development Limited
Partnership
New Hampshire Associates Development (of Delaware)
Limited Partnership
Tennessee CBL & Associates Limited Partnership (of
Delaware)
Texas CBL & Associates (of Delaware) Limited
Partnership
7. Federal Employer Identification No.: ▇▇-▇▇▇▇▇▇▇
8. Partners:
Name and Percentage: Type of Partner:
-------------------- ----------------
See Schedule A to Partnership Agreement
9. Assets Owned by Partnership:
Various general partnership interests in Pre-IPO property partnerships
and limited partnership interests in Post-IPO property partnerships.
10. Amendments or Modifications to Original Agreement and Original Certificate
(dates, substance, filing info, etc.):
Original Certificate of Limited Partnership filed in the office of the
Delaware Secretary of State on July 16, 1993.
Original Agreement of Limited Partnership dated October 29, 1993.
Amended and Restated Agreement of Limited Partnership dated November 3,
1993, whereby CBL & Associates, Inc., the former General Partner of the
Partnership, coverted its general partner interest to a limited partner
interest and inserted CBL & Associates Properties, Inc. as the sole
General Partner.
Certificate of Amendment to Certificate of Limited Partnership filed in the
office of the Delaware Secretary of State on December 15, 1993 to reflect
the conversion and new General Partner set forth above.
79
Modification No. One to Amended and Restated Agreement of Limited
Partnership dated March 31, 1997, to reflect (i) the conversion of certain
of CBL & Associates Properties' general parter interests to limited
interests, (ii) the transfer and assignment of CBL & Associates
Properties' remaining general partner interest to CBL Holdings I, Inc.
pursuant to that certain Assignment of Partnership Interest dated
March 31, 1997, and (iii) the transfer and assignment of Partnership
Interest dated March 31, 1997.
Certificate of Amendment to Certificate of Limited Partnership filed in
the office of the Delaware Secretary of State on May 21, 1997 to reflect
the conversion, assignments and new General Partner set forth above.
Modification No. Two to the Amended and Restated Agreement of Limited
Partnership dated February 19, 1998, to
Second Amended and Restated Agreement of Limited Partnership dated
June 30, 1998 to reflect the addition of preferred partnership units in
connection with the 9% Series A Perpetual Preferred Stock issued by
CBL & Associates Properties, Inc. on June 22, 1998.
First Amendment to Second Amended and Restated Agreement of Limited
Partnership dated January 31, 2001 establishes and sets forth the terms
of the new series of Partnership Units designated as Series J Special
Common Units (SCUs) in connection with acquisition of ▇▇▇▇▇▇ Portfolio.
Second Amendment to Second Amended and Restated Agreement of Limited
Partnership dated February 15, 2002.
Third Amendment to Second Amended and Restated Agreement of Limited
Partnership dated July 28, 2004.
11. Items necessary to complete file: Yes No
Executed Partnership Agreement ____ ____
Amendments or Modifications to
Partnership Agreement ____ ____
Certificate of Limited Partnership ____ ____
Amendments of Certificate of
Limited Partnership ____ ____
80
Assignment Documents ____ ____
Qualification in State ____ ____
Federal ID# ____ ____
12. Miscellaneous Information:
13: Term: (i) upon withdrawal, dissolution, termination, retirement or
bankruptcy of the General Partner (may be continued as provided in
Section 9.1);
(ii) election to dissolve made in writing by the General Partner with,
subject to Section 7.3, the Consent of the Limited Partners;
(iii) sale or disposition of all or substantially all the assets of the
Partnership unless the General Partner, with the Consent of the Limited
Partners, elects to continue the Partnership business for the purpose of
the receipt and the collection of indebtedness or the collection of any
other consideration to be received in exchange for the assets of the
Partnership (which activities shall be deemed to be part of the winding-up
of the affiars of the Partnership);
(iv) dissolution required by operation of law; or
(v) December 31, 2090.
14. General Partner Info (qualification):
CBL Holdings I, Inc. was incorporated in the State of Delaware on
March 20, 1997. CBL Holdings I, Inc. is a wholly-owned subsidiary of
CBL & Associates Properties, Inc.
15. Registered Agent and Office in State of Domestication:
Corporation Service Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
81
SCHEDULE A
ACQ- MONROEVILLE MALL, ISSUANCE OF S-SCUS
-----------------------------------------------------
S-SCUs Issued on *7 SH EQ AFTER
Acq of Monroeville Mall S-SCUs Issued on
780,471 Acq of Monroeville Mall
Value $41,926,902
07/27/04 SCHED A 56,771,591
$53.720 *7 07/27/04 07/27/04
CBL HOLDINGS I, INC. - GEN P/NER $50,435,076 0.0165373381914 938,851
CBL HOLDINGS II, INC - LTD P/NER $1,606,703,046 0.5268276346017 29,908,843
CBL & Associates, Inc. $388,815,852 0.1274902265862 7,237,823
CBL/Employees Partnership/▇▇▇▇▇▇ $1,458,874 0.0004783554507 27,157
College Station Associates $12,258,582 0.0040195103922 228,194
Foothills Plaza Partnership $2,325,861 0.0007626349595 43,296
▇▇▇, ▇▇▇▇ ▇. $10,166,027 0.0033333749623 189,241
▇▇▇▇▇▇ Road Partnership $181,842 0.0000596248923 3,385
▇▇▇▇▇▇▇▇, ▇▇▇ ▇. $3,236,093 0.0010610940955 60,240
▇▇▇▇▇▇▇▇, ▇▇▇▇ $4,552,018 0.0014925775112 84,736
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. $18,957,949 0.0062161900661 352,903
Backer, ▇▇▇▇ ▇▇▇▇▇▇▇▇ $4,207,136 0.0013794927819 78,316
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. $6,183,870 0.0020276514710 115,113
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. $12,835,642 0.0042087247477 238,936
Trust ▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ $2,728,976 0.0008948137459 50,800
Trust U/W ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ fbo ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ $2,686,000 0.0008807221908 50,000
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. $1,297,392 0.0004254064326 24,151
▇▇▇▇▇▇, ▇▇▇▇ ▇. $2,602,143 0.0008532260440 48,439
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. $1,486,432 0.0004873916604 27,670
Warehouse Partnership $1,263,924 0.0004144326341 23,528
▇▇▇▇▇▇, ▇▇▇ $3,990,160 0.0013083480433 74,277
▇'▇▇▇▇▇▇ Realty Investors II, LP $3,242,002 0.0010630316843 60,350
▇.▇. ▇'▇▇▇▇▇▇ and Co., Inc. $285,683 0.0000936736122 5,318
▇'▇▇▇▇▇▇ and Associates, LP $6,506,137 0.0021333205195 121,112
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Marital Trust - Meridian $10,744,000 0.0035228887633 200,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. - Meridian $15,839,181 0.0051935659159 294,847
▇▇▇▇▇▇▇ ▇▇▇▇▇ Declaration of Trust - Meridian $2,614,230 0.0008571892939 48,664
▇▇▇▇▇, ▇▇▇▇▇ ▇. - Meridian $2,855,111 0.0009361724600 53,148
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. - Janesville $3,793,008 0.0012437030345 70,607
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ - Janesville $3,040,230 0.0009968718333 56,594
JCP Realty, Inc. - Janesville $5,705,870 0.0018709181500 106,215
▇▇▇▇▇▇▇▇ Properties - Janesville $2,282,348 0.0007483672600 42,486
Marshfield Properties - Janesville $798,816 0.0002619267795 14,870
Greenbriar Properties - Janesville $798,816 0.0002619267795 14,870
▇▇▇▇▇▇▇ Properties - Janesville $798,816 0.0002619267795 14,870
Meadowbrook Properties - Janesville $798,816 0.0002619267795 14,870
▇▇▇▇ Bros. Blueberries, Inc. $4,282,290 0.0014041353888 79,715
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Marital Trust $13,645,740 0.0044743505605 254,016
Perlick Holdings, LLC $6,273,314 0.0020569795200 ▇▇▇,▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ LLC (SCUs) $70,624,610 0.0231573569965 1,314,680
CB ▇▇▇▇ ▇▇▇▇▇ Center LLC (SCUs) $41,846,322 0.0137211409141 778,971
CB Citadel Mall LLC (SCUs) $2,924,947 0.0009590712369 54,448
CB Columbia Mall LLC (SCUs) $4,255,269 0.0013952753236 79,212
CB Eastgate Mall LLC (SCUs) $15,211,463 0.0049877411399 283,162
▇▇ ▇▇▇▇▇▇▇ LLC (SCUs) $83,653,053 0.0274292999830 1,557,205
CB Fashion Square Mall LLC (SCUs) $62,908,645 0.0206273415878 1,171,047
▇▇ ▇▇▇▇▇▇▇ Mall LLC (SCUs) $64,240,847 0.0210641621800 1,195,846
▇▇ ▇▇▇▇▇ Mall LLC (SCUs) $44,912,982 0.0147266790538 ▇▇▇,▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ LLC (SCUs) $21,379,002 0.0070100378200 397,971
CB Kentucky Oaks Mall LLC (SCUs) $39,799,644 0.0130500482191 ▇▇▇,▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ LLC (SCUs) $868,330 0.0002847198698 16,164
CB Northwoods Mall LLC (SCUs) $35,853,534 0.0117561440197 667,415
CB Old Hickory Mall LLC (SCUs) $37,653,960 0.0123464921042 ▇▇▇,▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLC (SCUs) $31,945,726 0.0104747989187 ▇▇▇,▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLC (SCUs) $2,182,375 0.0007155867800 40,625
CB Regency Mall LLC (SCUs) $11,541,259 0.0037843047239 214,841
▇▇ ▇▇▇▇▇ Mall LLC (SCUs) $673,649 0.0002208851255 12,540
CB Wausau Penney LLC (SCUs) $932,794 0.0003058572024 17,364
CB Wausau Center LLC (SCUs) $25,396,882 0.0083274749164 472,764
C.V. Investments (SCUs) $42,102,674 0.0138051970400 783,743
JCP Realty, Inc. (SCUs) $45,203,446 0.0148219203515 841,464
▇▇▇▇▇▇▇ Midland, LP (SCUs) $3,360,186 0.0011017834607 62,550
▇▇▇▇▇▇ Family Partnership, Ltd. (SCUs) $8,098,021 0.0026552893331 150,745
▇▇▇▇▇▇ Family Partnership, Ltd. (CUs) $832,875 0.0002730943369 15,504
▇▇▇▇ Properties of Huntsville, Ltd. (SCUs) $8,098,021 0.0026552893331 150,745
▇▇▇▇ Properties of Huntsville, Ltd. (CUs) $832,875 0.0002730943369 15,504
Panama City Associates, LLC. $6,376,295 0.0020907464088 118,695
▇▇▇▇ Joint Venture $3,312,483 0.0010861418346 61,662
Northwestern Mutual Life Insurance Company $50,102,979 0.0164284456998 932,669
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. $493,579 0.0001618415098 9,188
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Revocable Trust $9,165,062 0.0030051650306 170,608
▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Trust $6,546,480 0.0021465489668 121,863
▇▇▇▇▇ ▇▇▇▇▇▇▇ (FN A) $76,497 0.0000250829680 1,424
Estate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.(FN B) $629,169 0.0002063003660 11,712
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Tstee, ▇▇▇▇▇▇ Family Trust(SCUs)(FN C) $296,266 0.0000971436576 5,515
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SCU's) (FN D) $296,266 0.0000971436576 5,515
▇▇▇▇ ▇▇▇▇▇▇▇ Residual Trust U/A 8/24/90(SCUs)(FN E) $537,200 0.0001761444382 10,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SCU's) (FN F) $0 0.0000000000000 0
Monroeville Mall Partners, L.P. (S-SCUs) (FN G) $41,239,071 0.0135220272407 767,667
Monroeville Mall TIC's II (S-SCUs) (FN G) $687,831 0.0002255353386 12,804
-------------- --------------- -----------
$3,049,769,869 1.0000000000000 56,771,591
============== =============== ==========
82
SCHEDULE 6.1.(f)
Litigation
NONE
83
EXHIBIT "A"
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is dated as of
________ __, ____, between __________________ ("Assignor") and ______________
("Assignee").
RECITALS:
A. Assignor is a Lender under the Unsecured Credit Agreement dated as
of August __, 2004 (as from time to time amended, supplemented or restated, the
"Loan Agreement"), by and among CBL & Associates Limited Partnership, a Delaware
limited partnership ("Borrower"), CBL & Associates Properties, Inc., a Delaware
corporation, the persons named therein as Lenders and such other Persons as may
become Lenders in accordance with the terms of the Loan Agreement, and ▇▇▇▇▇
Fargo Bank, National Association, as Agent ("Agent"). (Capitalized terms used in
this Agreement without definition have the same meanings as in the Loan
Agreement.)
B. Assignor desires to assign to Assignee, and Assignee desires to
accept and assume, [all/a portion of] the rights and obligations of Assignor
under the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Assignment.
(a) Effective on the Assignment Effective Date (as defined in
Section 3 below), Assignor hereby assigns to Assignee the Assigned Share (as
defined below) of all of Assignor's rights, title, interest and obligations
under the Loan Agreement and other Loan Documents, including without limitation
those relating to Assignor's pro rata share of the Loan. The Assigned Share of
all such rights, title, interest and obligations is referred to collectively as
the "Assigned Rights and Obligations".
(b) The "Assigned Share" means the aggregate amount of the
Loan outstanding under the Loan Agreement on the Assignment Effective Date that
is attributable to the percentage of the Loan represented by the Assigned Share.
The pro rata share represented by the Assigned Share, and the pro rata share, if
any, in the Loan retained by Assignor, shall be as specified on the signature
pages of this Agreement.
2. Assumption. Effective on the Assignment Effective Date, Assignee
hereby accepts the foregoing assignment of, and hereby assumes from Assignor,
the Assigned Rights and Obligations.
3. Effectiveness. This Agreement shall become effective on a date (the
"Assignment Effective Date") selected by Assignor, which shall be on or as soon
as practicable after the execution and delivery of counterparts of this
Agreement by Assignor, Assignee, Agent and Borrower. Assignor shall promptly
notify Assignee, Agent and Borrower in writing of the Assignment Effective Date.
4. Payments on Assignment Effective Date. In consideration of the
assignment by Assignor to Assignee, and the assumption by Assignee, of the
Assigned Rights and Obligations, on the Assignment Effective Date Assignee shall
pay to Assignor such amounts as are specified in any written agreement or
exchange of letters between them, and Assignor shall pay to Agent an assignment
processing fee of $3,500.
5. Allocation and Payment of Interest and Fees.
(a) Agent shall pay to Assignee all interest and other amounts
(including Fees, except as otherwise provided in the written agreement referred
to in Section 4 above) not constituting principal that are paid by or on behalf
of Borrower pursuant to the Loan Documents and are attributable to the Assigned
Rights and Obligations ("Borrower Amounts"), that accrue on and after the
Assignment Effective Date. If Assignor receives or collects any such Borrower
Amounts, Assignor shall promptly pay them to Assignee.
84
(b) Agent shall pay to Assignor all Borrower Amounts that
accrue before the Assignment Effective Date (or otherwise pursuant to the
written agreement referred to in Section 4 above) when and as the same are paid
by Agent to the other Lenders. If Assignee receives or collects any such
Borrower Amounts, Assignee shall promptly pay such amounts to Assignor.
(c) Unless specifically assumed by Assignee, Assignor shall be
responsible and liable for all reimbursable liabilities and costs and
indemnification obligations which accrue under Section 11.7 of the Loan
Agreement prior to the Assignment Effective Date, and such liability shall
survive the Assignment Effective Date.
6. Agent Liability. Agent shall not be liable for any allocation or
payment to either Assignor or Assignee subsequently determined to be erroneous,
unless resulting from Agent's willful misconduct or gross negligence.
7. Representations and Warranties.
(a) Each of Assignor and Assignee represents and warrants to the
other and to Agent as follows:
(i) It has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and to
fulfill its obligations under, and to consummate the
transactions contemplated by, this Agreement;
(ii) The making and performance of this Agreement and all
documents required to be executed and delivered by it
hereunder do not and will not violate any law or regulation
applicable to it;
(iii)This Agreement has been duly executed and delivered by it
and constitutes its legal, valid and binding obligation
enforceable in accordance with its terms; and
(iv) All approvals, authorizations or other actions by, or
filings with, any governmental authority necessary for the
validity or enforceability of its obligations under this
Agreement have been made or obtained.
(b) Assignor represents and warrants to Assignee that Assignor owns
the Assigned Rights and Obligations free and clear of any lien or
other encumbrance.
(c) Assignee represents and warrants to Assignor as follows:
(i) Assignee is and shall continue to be an "Eligible Assignee"
as defined in the Loan Agreement;
(ii) Assignee has made and shall continue to make its own
independent investigation of the financial condition,
affairs and creditworthiness of Borrower and any other
person or entity obligated under the Loan Documents
(collectively, "Credit Parties"); and
(iii)Assignee has received copies of the Loan Documents and such
other documents, financial statements and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement.
85
8. No Assignor Responsibility. Assignor makes no representation or
warranty regarding, and assumes no responsibility to Assignee for:
(a) the execution (by any party other than Assignor),
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of the Loan Documents or any representations, warranties,
recitals or statements made in the Loan Documents or in any financial
or other written or oral statement, instrument, report, certificate or
any other document made or furnished or made available by Assignor to
Assignee or by or on behalf of any Credit Party to Assignor or Assignee
in connection with the Loan Documents and the transactions contemplated
thereby;
(b) the performance or observance of any of the terms,
covenants or agreements contained in any of the Loan Documents or as to
the existence or possible existence of any Default or Event of Default
under the Loan Documents; or
(c) the accuracy or completeness of any information provided
to Assignee, whether by Assignor or by or on behalf of any Credit
Party.
Assignor shall have no initial or continuing duty or responsibility to make any
investigation of the financial condition, affairs or creditworthiness of any of
the Credit Parties, in connection with the assignment of the Assigned Rights and
Obligations or to provide Assignee with any credit or other information with
respect thereto, whether coming into its possession before the date hereof or at
any time or times thereafter.
9. Assignee Bound By Loan Agreement. Effective on the Assignment
Effective Date, Assignee (a) shall be deemed to be a party to the Loan
Agreement, (b) agrees to be bound by the Loan Agreement to the same extent as it
would have been if it had been an original Lender thereunder, (c) agrees to
perform in accordance with their respective terms all of the obligations which
are required under the Loan Documents to be performed by it as a Lender, and (d)
agrees to maintain its status as an Eligible Assignee. Assignee appoints and
authorizes Agent to take such actions as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to Agent by the terms
thereof, together with such powers as are reasonably incidental thereto.
10. Assignor Released From Loan Agreement. Effective on the Assignment
Effective Date, Assignor shall be released from the Assigned Rights and
Obligations; provided, however, that Assignor shall retain all of its rights to
indemnification under the Loan Agreement and the other Loan Documents for any
events, acts or omissions occurring before the Assignment Effective Date, and,
to the extent not assumed by Assignee, Assignor shall continue to be responsible
for the liabilities and obligations described in Section 5(c) of this Agreement.
11. New Notes. On or promptly after the Assignment Effective Date,
Borrower, Agent, Assignor and Assignee shall make appropriate arrangements so
that new Notes executed by Borrower, dated the Assignment Effective Date and in
the amount of the respective pro rata shares of Assignor and Assignee in the
original Loan amount, after giving effect to this Agreement, are issued to
Assignor and Assignee, in exchange for the surrender by Assignor and Assignee to
Borrower of any applicable outstanding Notes, marked "Exchanged" or "Cancelled".
12. General.
(a) No term or provision of this Agreement may be amended,
waived or terminated orally, but only by an instrument signed by the
parties hereto.
(b) This Agreement may be executed in one or more
counterparts. Each set of executed counterparts shall be an original.
Executed counterparts may be delivered by facsimile transmission.
(c) If Assignor has not assigned its entire remaining pro rata
share of the Loan to Assignee, Assignor may at any time and from time
to time grant to others, subject to applicable provisions in the Loan
Agreement, assignments of or participation in all of Assignor's
remaining pro rata share of the Loan.
86
(d) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. Neither Assignor nor Assignee may assign or transfer any of
its rights or obligations under this Agreement without the prior
written consent of Agent and (subject to the provisions of Section
12.5(c) of the Loan Agreement) Borrower. The preceding sentence shall
not limit the right of Assignee to grant to others a participation in
all or part of the Assigned Rights and Obligations subject to the terms
of the Loan Agreement.
(e) All payments to Assignor or Assignee hereunder shall,
unless otherwise specified by the party entitled thereto, be made in
United States dollars, in immediately available funds, and to the
address or account specified on the signature pages of this Agreement.
The address of Assignee for notice purposes under the Loan Agreement
shall be as specified on the signature pages of this Agreement.
(f) If any provision of this Agreement is held invalid,
illegal or unenforceable, the remaining provisions hereof will not be
affected or impaired in any way.
(g) Each party shall bear its own expenses in connection with
the preparation and execution of this Agreement.
(h) This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
(i) [Foreign Withholding. On or before the Assignment
Effective Date, Assignee shall comply with the provisions of Section
3.9(c) of the Loan Agreement.] 1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
ASSIGNOR: __________________________,
_____________________________
By:__________________________
Name:________________________
Its:_________________________
Pro Rata Share: ___%
Share of Original Loan: $_________________
Assignor's Payment Instruction:
------------------------------
_____________________________
_____________________________
ABA No.:_____________________
Account No.:_________________
Reference:___________________
Loan No. :___________________
Attn :_______________________
Telephone:___________________
Telecopy:____________________
1 Include only if Assignee is a a foreign institution.
87
ASSIGNEE: __________________________,
----------------------------------
By:________________________
Name:______________________
Its:_______________________
Pro Rata Share: ___%
Share of Original Loan: $_________________
Assignee's Payment Instruction:
------------------------------
___________________________
___________________________
ABA No.:___________________
Account No.:_______________
Reference:_________________
Loan No. :_________________
Attn :_____________________
Telephone:_________________
Telecopy:__________________
88
ACKNOWLEDGED AND AGREED:
-----------------------
BORROWER: CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., its sole general partner
By:__________________________
Name:________________________
Its:_________________________
AGENT:
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION
By:_______________________________
Name:_____________________________
Its:______________________________
89
EXHIBIT "B"
REVOLVING PROMISSORY NOTE
Atlanta, Georgia
$______________ ___________ ___, 200__
FOR VALUE RECEIVED, the undersigned, CBL & ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership (hereinafter referred to as
"Maker"), unconditionally PROMISES TO PAY to the order of
___________________________________ (hereinafter referred to as the "Holder"),
at the office of ▇▇▇▇▇ Fargo Bank, National Association, located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
Holder may from time to time designate in writing, in lawful money of the United
States and in immediately available funds, the principal sum of
__________________ DOLLARS ($_____________________), or, if less, the aggregate
principal amount of Advances from the Holder outstanding on the Termination
Date, payable in full on the Termination Date.
Interest on the principal balance from time to time outstanding
hereunder shall accrue at the rates and shall be payable at the times and in the
manner set forth in that certain Unsecured Credit Agreement dated as of August
___, 2004 among Maker, CBL & Associates Properties, Inc., Holder and the other
Lenders party thereto, together with those Assignees becoming parties thereto
pursuant to Section 12.5 thereof (collectively, the "Lenders"), and ▇▇▇▇▇ Fargo
Bank, National Association, as administrative agent for the Lenders (in such
capacity, the "Agent"), (as modified, amended and restated from time to time,
the "Loan Agreement"). All capitalized terms used herein, unless otherwise
defined herein, shall have the respective meanings ascribed to therein in the
Loan Agreement.
The principal of this Note represents a revolving credit, all or any
part of which may be advanced by Maker, repaid by Maker and readvanced to Maker
from time to time, subject to and in accordance with the terms and conditions of
the Loan Agreement
The date and amount of each Advance made by Holder to Maker under the
Loan Agreement, and each payment of principal, shall be recorded by Holder on
its books; provided that the failure of Holder to make any such recordation or
endorsement shall not affect the obligations of Maker to make a payment when due
of any amount owing hereunder.
This Note is one of the "Notes" referred to in the Loan Agreement, and
is subject to all of the terms and conditions of the Loan Agreement, including,
but not limited to, those related to the acceleration of the indebtedness
represented hereby upon the occurrence of an Event of Default or the reduction
90
of the Commitment (as such term is defined in the Loan Agreement), and is
entitled to the benefit and security of the Loan Agreement and the other
instruments, documents and agreements provided therein, to which reference is
hereby made for a statement of all of the terms and conditions under which the
loan evidenced hereby is made. Except as otherwise expressly provided in the
Loan Agreement or the other Loan Documents, Maker hereby waives presentment and
demand for payment, notice of intent to accelerate maturity, notice of
acceleration of maturity, protest or notice of protest and nonpayment, bringing
of suit and diligence in taking any action to collect any sums owing hereunder
or in proceeding against any of the rights and properties securing payment
hereof.
CBL Holdings I, Inc., Maker's sole general partner, its successors and
assigns (the "General Partner"), shall not be personally liable for the payment
of this Note except to the extent set forth in Section 12.18 of the Loan
Agreement.
All amounts payable hereunder are payable in lawful money of the United
States of America. Maker agrees to pay all costs of collection hereof when
incurred, including reasonable attorneys' fees, whether or not any legal action
shall be instituted to enforce this Note.
MAKER AGREES THAT TIME IS OF THE ESSENCE IN THE PERFORMANCE OF ALL
OBLIGATIONS HEREUNDER.
This Note shall be governed by and construed according to the laws of
the State of Georgia.
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IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
under seal as of the day and year first written above.
"MAKER"
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., as General Partner
By: _________________________________
Name:________________________________
Title:_______________________________
Attest: ____________________________
Name:________________________________
Title:_______________________________
[CORPORATE SEAL]
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EXHIBIT "C"
Notice of Borrowing
CBL & ASSOCIATES
LIMITED PARTNERSHIP
__________ __, 200__
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ____________________
Ladies and Gentlemen:
Reference is made to that certain Unsecured Credit Agreement dated as
of August ___, 2004 (as it may be modified, amended and restated from time to
time, the "Credit Agreement"), by and among CBL & Associates Limited Partnership
(the "Borrower"), CBL & Associates Properties, Inc., and the Lenders from time
to time party thereto (collectively, together with Assignees under Section 12.5
thereof, the "Lenders") and ▇▇▇▇▇ Fargo Bank, National Association, as
administrative agent (in such capacity, "Agent"). Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in
the Credit Agreement.
1. Pursuant to Section 2.1 of the Credit Agreement, the Borrower
hereby requests that the Lenders make an Advance to the
Borrower in an amount equal to ____________ Dollars
($________).
2. The Borrower requests that the Advance be made available to
the Borrower on _____________, 200_.
3. The Borrower hereby requests that the requested Advance be of
the following Type:
[Check one box only]
[ ] Base Rate Advance
[ ] LIBOR Advance, with an initial Interest Period for
a duration of:
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[ ] one month
[ ] two months
[ ] three months
[ ] six months
[ ] twelve months
4. The proceeds of this Advance should be distributed as follows:
The Borrower hereby certifies to the Agent and the Lenders that (a) the
proposed use of the proceeds of such Advance set forth above is consistent with
the provisions of Section 7.7 of the Credit Agreement; (b) there exists no (i)
Default under Sections 10.1(a), 10.1(b)(i), 10.1(e) or 10.1(f) of the Credit
Agreement, (ii) other Default as to which Agent has given Borrower notice or
(iii) Event of Default, nor any event or condition which, with the making of
such Advance, would constitute a Default or Event of Default; and (c) all of the
representations and warranties made by Borrower or any other Loan Party
hereunder under any of the Notes or under any of the Loan Documents are true and
correct in all material respects as of the date hereof with the same force and
effect as if made on and as of such date, except to the extent such
representations or warranties specifically relate to an earlier date and except
for changes therein occurring in the ordinary course of business which do not
otherwise constitute a Default or Event of Default hereunder.
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc.,
as General Partner
By:__________________________
Name:___________________
Title:__________________
94
EXHIBIT "D"
Notice of Continuation
CBL & ASSOCIATES
LIMITED PARTNERSHIP
__________ __, 200__
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: __________________
Ladies and Gentlemen:
Reference is made to that certain Unsecured Credit Agreement dated as
of August ___, 2004 (as it may be amended from time to time, the "Credit
Agreement"), by and among CBL & Associates Limited Partnership (the "Borrower"),
CBL & Associates Properties, Inc., and the Lenders from time to time party
thereto (collectively, together with Assignees under Section 12.5 thereof, the
"Lenders") and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent
(in such capacity, the "Agent"). Capitalized terms used herein and not otherwise
defined herein, have their respective meanings given them in the Credit
Agreement.
Pursuant to Section 2.7(a) of the Credit Agreement, the Borrower hereby
elects to the maintain all, or the portion set forth below, of the LIBOR Advance
in the amount ________________ Dollars ($____________) and having an Interest
Period expiring on __________________, as a LIBOR Advance, and in that
connection sets forth below the information relating to such continuation as
required by such Section 2.7(a) of the Credit Agreement:
1. The amount of the existing LIBOR Advances to be continued as a LIBOR
Advance is:
[Check one box only]
[ ] All of said LIBOR Advance (being $________)
[ ] $________
2. The amount of the LIBOR Advance being continued shall have an
Interest Period of:
[Check one box only] [ ] one month
[ ] two months
[ ] three months
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[ ] six months
[ ] twelve months
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the proposed date of the requested continuation, and
after giving effect to such continuation, (a) if the Interest Period requested
above is one month, there exists no (i) Event of Default; (ii) Default under
Sections 10.1(a), 10.1(b)(i), 10.1(e) or 10.1(f) of the Credit Agreement, or
(iii) other Default as to which Agent has given Borrower notice; (b) if the
Interest Period requested above is other than one month, no Default or Event of
Default has occurred and is continuing; and (c) the representations and
warranties of the Borrower contained in the Credit Agreement and the other Loan
Documents are and shall be true and correct, except to the extent such
representations or warranties specifically relate to an earlier date and except
for changes therein occurring in the ordinary course of business which do not
otherwise constitute a Default or Event of Default hereunder.
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., as General Partner
By: _____________________________
Name:________________________
Title:_______________________
96
EXHIBIT "E"
Notice of Conversion
CBL & ASSOCIATES
LIMITED PARTNERSHIP
__________ __, 200__
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: __________________
Ladies and Gentlemen:
Reference is made to that certain Unsecured Credit Agreement dated as
of August ___, 2004 (as it may be amended from time to time, the "Credit
Agreement"), by and among CBL & Associates Limited Partnership (the "Borrower"),
CBL & Associates Properties, Inc., and the Lenders from time to time party
thereto (collectively, together with Assignees under Section 12.5 thereof, the
"Lenders") and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent
(in such capacity, the "Agent"). Capitalized terms used herein and not otherwise
defined herein, have their respective meanings given them in the Credit
Agreement.
Pursuant to Section 2.7(b) of the Credit Agreement, the Borrower hereby
requests a conversion of an Advance of one Type into an Advance of another Type,
and in that connection sets forth below the information relating to such
conversion as required by such Section 2.7(b) of the Credit Agreement:
1. The requested date of such conversion is ___________, _____.
2. The Type of an Advance to be Converted pursuant hereto is currently:
[Check one box only]
[ ] Base Rate Advance
[ ] LIBOR Advance
3. The aggregate principal amount of the Advance subject to the
requested conversion is $__________ and the portion of such
principal amount subject to such conversion is $___________.
97
4. The amount of such Advance to be converted is to be Converted
into an Advance of the following Type:
[Check one box only]
[ ] Base Rate Advance
[ ] LIBOR Advance with an initial Interest Period for
a duration of:
[check one box only] [ ] one month
[ ] two months
[ ] three months
[ ] six months
[ ] twelve months
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the proposed date of the requested conversion, and after
giving effect to such conversion, (a) if the Interest Period requested above is
one month, there exists no (i) Event of Default; (ii) Default under Sections
10.1(a), 10.1(b), 10.1(e) or 10.1(f) of the Credit Agreement, or (iii) other
Default as to which Agent has given Borrower notice; (b) if the Interest Period
requested above is other than one month, no Default or Event of Default has
occurred and is continuing; and (c) the representations and warranties of the
Borrower contained in the Credit Agreement and the other Loan Documents are and
shall be true and correct, except to the extent such representations or
warranties specifically relate to an earlier date and except for changes therein
occurring in the ordinary course of business which do not otherwise constitute a
Default or Event of Default hereunder.
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., as General Partner
By: __________________________________
Name: ____________________________
Title:____________________________
98
EXHIBIT "F"
GUARANTY
THIS GUARANTY ("Guaranty") is made and entered into this ___ day of
August, 2004, by CBL & Associates Properties, Inc., a Delaware corporation
("Guarantor"), in favor of the lenders (the "Lenders") party to the Unsecured
Credit Agreement referred to below and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as administration agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, CBL & Associates Limited Partnership ("Borrower"), the
Guarantor, the Lenders and the Agent are parties to an Unsecured Credit
Agreement dated as of August __, 2004 (said Agreement, as it may hereafter be
amended or otherwise modified from time to time, being referred to herein as the
"Loan Agreement"); capitalized terms not defined herein shall have the meanings
given them in the Loan Agreement.
WHEREAS, Guarantor derives benefits from the Advances made to Borrower
under the Loan Agreement;
NOW, THEREFORE, as a material inducement to the Agent and the Lenders
to make Advances to Borrower, and for other good and valuable consideration, the
receipt and sufficiency of all of which are hereby acknowledged and confessed,
Guarantor does hereby irrevocably and unconditionally, warrant and represent
unto and covenant and agree with the Agent and the Lenders as follows:
1. Guaranty of Payment and Loan.
1.1 Guarantor hereby absolutely and unconditionally (a)
guarantees unto the Agent and the Lenders the full and timely payment of all
obligations of CBL Holdings I, Inc., the general partner of Borrower, and its
successors as general partner of Borrower (hereinafter referred to as the
"General Partner"), now or hereafter existing under the Loan Agreement, the
Notes issued thereunder and the other Loan Documents executed in connection
therewith (subject to the limitations set forth in Section 12.18 of the Loan
Agreement, (such obligations guaranteed pursuant to the provisions of this
paragraph being referred to collectively as the "Guaranteed Obligations") as and
when the same shall be due and payable, whether by lapse of time, by
acceleration of maturity or otherwise, irrespective of the validity, regularity
or enforceability of the Loan Agreement or other Loan Documents; and (b) agrees
with the Agent and the Lenders to pay to the Agent (i) within ten (10) days from
the date the Agent notifies Guarantor of Borrower's failure to pay the
Obligations, or any portion thereof, at maturity (whether by acceleration or
otherwise) and at the place specified in the Loan Agreement for payment, the
full amount of the unpaid Guaranteed Obligations and (ii) reasonable attorneys'
fees actually incurred and all court costs incurred by the Agent or the Lenders
in enforcing or protecting any of Lenders' rights, remedies or recourses
hereunder.
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1.2 This is a guaranty of payment and not of collection
only.
1.3 The obligations of Guarantor under Paragraph 1.1 above
shall continue in full force and effect until such time as all Obligations under
the Loan Agreement have been paid in full and all of the Commitments under the
Loan Agreement have been terminated.
2. Alteration of Guaranteed Obligations. The Agent and the Lenders
may make advances from time to time under the Loan Agreement, and Guaranteed
Obligations may thus become due and payable, without further notice to or
authorization from Guarantor. Further, upon such terms and at such times as it
deems best, and without notice to Guarantor, the Agent and the Lenders may (a)
alter, compromise, modify, accelerate, extend or change the time or manner for
payment or performance of any of the Guaranteed Obligations, (b) increase or
reduce the rate of interest or amount of principal payable on the Guaranteed
Obligations, (c) release or discharge the Borrower, General Partner or any
other guarantor of the Guaranteed Obligations, by acceptance of a deed or
assignment in lieu of foreclosure or otherwise, as to all or any portion of
the Guaranteed Obligations, (d) release, substitute or add any one or more
guarantors or endorsers, accept additional or substituted security for the
Guaranteed Obligations, or release or subordinate any security therefor, and
(e) resort to Guarantor for payment of all or any portion of the Guaranteed
Obligations, whether or not the Agent shall have resorted to any property
securing the Guaranteed Obligations, or shall have proceeded against General
Partner, Borrower or any party primarily or secondarily liable for the
Guaranteed Obligations. No exercise, delay in exercise or non-exercise by the
Agent or any Lender of any right hereby given it, no dealing by the Agent or
any Lender with Borrower, General Partner, Guarantor or any other guarantor,
endorser or other person, no change, impairment or suspension of any right or
remedy of the Agent or any Lender, and no act or thing which but for this
provision could act as a release or exoneration of the liabilities of
Guarantor hereunder, shall in any way affect, decrease, diminish or impair any
of the obligations of Guarantor hereunder or give Guarantor or any other
Person any recourse or defense against the Agent or any Lender.
3. Waiver. Guarantor hereby waives and agrees not to assert or take
advantage of (a) any right to require the Agent or any Lender to proceed
against or exhaust its recourse against Borrower, General Partner or any
security or collateral held by the Agent or any Lender at any time or to
pursue any other remedy in its power before being entitled to payment by
Guarantor of the Guaranteed Obligations or before proceeding against
Guarantor; (b) the defense of the statute of limitations in any action
hereunder or for the payment or performance of any Guaranteed Obligation; (c)
any defense that may arise by reason of (i) the incapacity, lack of authority,
death or disability of Borrower, General Partner, Guarantor or any other
Person, (ii) the revocation or repudiation hereof by Guarantor or the
revocation or repudiation of any of the Loan Documents by Borrower, General
Partner or any other or others, (iii) the failure of the Agent or any Lender
to file or enforce a claim against the estate (either in administration,
bankruptcy or any other proceeding) of Borrower, General Partner or any other
Person, (iv) the unenforceability in whole or in part of the Loan Agreement,
100
the Collateral Documents or any of the other Loan Documents or any other
instrument, document or agreement referred to herein, (v) Agent's election, in
any proceeding instituted under the Federal Bankruptcy Code, of the
application of Section 1111(b)(2) of the Federal Bankruptcy Code; (d)
presentment, demand for payment, protest, notice of discharge, notice of
acceptance of this Guaranty, and indulgences and notices of any other kind
whatsoever other than any notice specifically provided for in this Guaranty or
the Collateral Documents; (e) any defense based upon an election of remedies
(including, if available, an election to proceed by nonjudicial foreclosure)
by the Agent or any Lender which destroys or otherwise impairs the subrogation
rights of Guarantor or the right of Guarantor to proceed against Borrower or
General Partner for reimbursement or both; (f) any defense based upon any
taking, modification or release of any collateral or guarantees for any
indebtedness of Borrower or General Partner to the Agent or any Lender, or any
failure to perfect any security interest in, or the taking of or failure to
take any other action with respect to any collateral securing payment or
performance of the Guaranteed Obligations; (g) any rights Guarantor might have
pursuant to the terms of Section 10-7-24 of the Official Code of Georgia
Annotated or any other similar laws: or (h) any rights or defenses based upon
an offset by Guarantor against any obligation now or hereafter owed to
Guarantor by Borrower or General Partner; it being the intention hereof that
Guarantor shall remain liable as principal, to the extent set forth herein,
until full payment and performance of all the Guaranteed Obligations and the
termination of the Commitments under the Loan Agreement, notwithstanding any
act, omission or thing which might otherwise operate as a legal or equitable
discharge of Guarantor.
4. Subordination; Subrogation; Preference and Fraudulent Transfer
Indemnity.
4.1 Any indebtedness (including, without limitation,
interest obligations) of Borrower or General Partner to Guarantor now or
hereafter existing shall be, and such indebtedness hereby is, deferred,
postponed and subordinated to the Guaranteed Obligations.
4.2 Guarantor will not exercise any rights which it may
acquire by way of subrogation under this Guaranty, by any payment made
hereunder or otherwise, until all the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full and the
Commitments have been terminated. If any amount shall be paid to the Guarantor
on account of such subrogation rights at any time prior to the later of (a)
the payment in full of the Guaranteed Obligations and all other amounts
payable under this Guaranty and (b) the termination of the Commitments, such
amount shall be held in trust for the benefit of the Agent and the Lenders and
shall forthwith be paid to the Agent to be credited and applied upon the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Agreement or to be held by the Agent as collateral security
for any Guaranteed Obligations thereafter existing. If (i) the Guarantor shall
make payment to the Agent or the Lenders of all or any part of the Guaranteed
Obligations, (ii) all the Guaranteed Obligations and all other amounts payable
under this Guaranty shall be paid in full, and (iii) the Commitments have been
terminated, the Agent and the Lenders will, at the Guarantor's request and
expense, execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by the Guarantor.
101
4.3 Guarantor further hereby unconditionally and irrevocably
agrees and guarantees (on a joint and several basis) to make full and prompt
payment to the Agent or any Lenders of any of the Guaranteed Obligations or
other sums paid to the Agent or any Lender pursuant to the Loan Agreement,
Collateral Documents or any of the other Loan Documents which Lender is
subsequently ordered or required to pay or disgorge on the grounds that such
payments constituted an avoidable preference or a fraudulent transfer under
applicable bankruptcy, insolvency or fraudulent transfer laws; and Guarantor
shall fully and promptly indemnify the Agent and each Lender for all
reasonable costs (including, without limitation, reasonable attorney's fees)
incurred by the Agent or such Lender in defense of such claims of avoidable
preference or fraudulent transfer.
4.4 It is the intent of Guarantor, the Agent and the Lenders
that in any Proceeding, Guarantor's maximum obligation hereunder shall equal,
but not exceed, the maximum amount which would not otherwise cause the
obligations of Guarantor hereunder (or any other obligations of Guarantor to
the Agent and the Lenders) to be avoidable or unenforceable against Guarantor
in such Proceeding as a result of applicable law, including without
limitation, (a) Section 548 of the Bankruptcy Code of 1978, as amended (the
"Bankruptcy Code") and (b) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such Proceeding, whether by virtue of
Section 544 of the Bankruptcy Code or otherwise. The applicable laws under
which the possible avoidance or unenforceability of the obligations of
Guarantor hereunder (or any other obligations of Guarantor to the Agent and
the Lenders) shall be determined in any such Proceeding are referred to as
the "Avoidance Provisions". Accordingly, to the extent that the obligations
of Guarantor hereunder would otherwise be subject to avoidance under the
Avoidance Provisions, the maximum Guaranteed Obligations for which Guarantor
shall be liable hereunder shall be reduced to that amount which, as of the
time any of the Guaranteed Obligations are deemed to have been incurred under
the Avoidance Provisions, would not cause the obligations of Guarantor
hereunder (or any other obligations of Guarantor to the Agent and the
Lenders), to be subject to avoidance under the Avoidance Provisions. This
Paragraph is intended solely to preserve the rights of the Agent and the
Lenders hereunder to the maximum extent that would not cause the obligations
of Guarantor hereunder to be subject to avoidance under the Avoidance
Provisions, and Guarantor shall not have any right or claim under this
Paragraph as against the Agent and the Lenders that would not otherwise be
available to Guarantor under the Avoidance Provisions. As used in this
Paragraph, the term "Proceeding" means any of the following: (i) a voluntary
or involuntary case shall be commenced by or against Guarantor under the
Bankruptcy Code of 1978, as amended; (ii) a custodian (as defined in such
Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or
takes charge of, all or any substantial part of the property of Guarantor;
(iii) any other proceeding under any applicable law, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up or composition
for adjustment of debts, whether now or hereafter in effect, is commenced by
or against Guarantor; (iv) Guarantor is adjudicated insolvent or bankrupt;
(v) as any usable order of relief or other order approving any such case or
proceeding is entered by a court of competent jurisdiction; (vi) Guarantor
makes a general assignment for the benefit of creditors; (vii) Guarantor
shall fail to pay, or shall state that it is unable to pay, or shall be
unable to pay, its debts generally as they become due; (viii) Guarantor shall
call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts; or (ix) any corporate action shall be taken by
Guarantor for the purpose of effecting any of the foregoing.
102
5. Condition of Borrower and General Partner. Guarantor is
fully aware of the financial condition of Borrower and General Partner and is
executing and delivering this Guaranty based solely upon Guarantor's own
independent investigation of all matters pertinent hereto and is not relying
in any manner upon any representation or statement of the Agent or any Lender.
Guarantor represents and warrants that Guarantor is in a position to obtain,
and Guarantor hereby assumes full responsibility for obtaining, any additional
information concerning the financial condition of Borrower and General
Partner, and any other matter pertinent hereto as Guarantor may desire, and
Guarantor is not relying upon or expecting the Agent or any Lender to furnish
to Guarantor any information now or hereafter in the Agent or any Lender's
possession concerning the same or any other matter. By executing this
Guaranty, Guarantor knowingly accepts the full range of risks encompassed
within a contract of this type, which risks Guarantor acknowledges. Guarantor
shall have no right to require the Agent or any Lender to obtain or disclose
any information with respect to the Guaranteed Obligations, the financial
condition or character of Borrower or General Partner, or the ability of
Borrower or General Partner to pay or perform the Guaranteed Obligations, the
existence of any collateral or security for any or all of the Guaranteed
Obligations, the existence or nonexistence of any other guaranties of all or
any part of the Guaranteed Obligations, any action or nonaction on the part of
the Agent or any Lender, Borrower, General Partner or any other person, or any
other matter, fact or occurrence whatsoever.
6. Representations and Warranties. Guarantor makes the following
representations and warranties which shall be deemed to be continuing
representations and warranties until payment in full of the Guaranteed
Obligations:
6.1 Financial Condition. The financial statements of Guarantor
which have heretofore been delivered to Agent and Lenders by Guarantor, and all
other statements and data submitted in writing by Guarantor to Agent and
Lenders, fairly and accurately represent the financial condition of Guarantor as
of the date thereof, and since said date, except as disclosed in writing to
Agent and Lenders or in Guarantor's 10-Q filed for the most recent quarter,
there have been no changes in the assets or liabilities or financial condition
of Guarantor, other than changes in the ordinary course of business, and no such
changes have been materially adverse changes. Guarantor has no knowledge of any
liabilities, contingent or otherwise, at said dates not reflected in said
financial statements.
6.2 Power and Authority. Guarantor (and the person or entity
executing this Guaranty on behalf of Guarantor, if any) has the requisite power,
authority, capacity and legal right to execute and deliver (and in the case of
Guarantor, perform) this Guaranty and all other documents required to be
executed and delivered hereunder.
6.3 Binding Obligations of Guarantor. This Guaranty and all
other documents required to be executed and delivered hereunder, when executed
and delivered, will constitute legal, valid and binding obligations of Guarantor
enforceable in all material respects against Guarantor in accordance with their
terms, except as the same may be limited by bankruptcy, insolvency, and other
similar laws affecting the rights of creditors generally and the availability of
equitable remedies for the enforcement of certain obligations contained herein
may be limited by equitable principles generally.
103
6.4 No Legal Bar. Neither the execution and delivery of this
Guaranty nor the consummation of the transactions contemplated hereby will,
with or without notice and/or lapse of time:
(i) constitute a breach of any of the terms and
provisions of, or constitute a default under, any note, contract,
document, instrument, agreement or undertaking, whether written or
oral, to which Guarantor is a party or to which Guarantor's property is
subject, which could have a material adverse impact on Guarantor's
financial condition or ability to perform its obligations hereunder;
(ii) accelerate, or constitute an event entitling the
holder of any material indebtedness of Guarantor to accelerate, the
maturity of any such indebtedness;
(iii) conflict with or result in a breach of any
writ, order, injunction or decree against Guarantor of any court or
governmental agency or instrumentality, whether national, state, local
or other; or
(iv) conflict with or be prohibited by any federal,
state, local or other governmental law, statute, rule or regulation.
6.5 No Consent. No consent of any other person not
heretofore obtained and no consent, approval or authorization of, or
registration, declaration or filing with, any court, governmental body,
governmental authority or other person or entity whatsoever is required in
connection with the valid execution, delivery or performance by Guarantor of
this Guaranty or any other documents required to be executed and delivered
hereunder, or in connection with any other transaction contemplated by this
Guaranty.
6.6 Truth and Completeness. All information, reports, papers
and data given to Agent by Borrower or Guarantor with respect to Guarantor or
the Collateral Documents to which the Guarantor is a party were, at the time
the same were so furnished, complete and correct in all material respects, to
the extent necessary to give the recipient a true and accurate knowledge of
the subject matter, or in the case of financial statements, present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
financial position of Borrower or Guarantor as at the date thereof and the
results of operations for such periods, and do not, or will not, omit any
fact, the inclusion of which is necessary to prevent the facts contained
therein from being materially misleading.
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6.7 No Legal Proceedings. Except as set forth in Schedule
6.1(f) to the Loan Agreement, there are no actions, suits or proceedings
pending (nor, to the knowledge of Guarantor, are there any actions, suits or
proceedings threatened, nor is there any basis therefor) against or in any
other way relating adversely to or affecting Guarantor before any court or
arbitrator or any governmental body, agency or official which (a) could have a
material adverse effect on the business, properties, financial position or
results of operations of Guarantor; or (b) in any manner draw into question
the validity of any Loan Document or Collateral Document to which the
Guarantor is a party or the priority of any Lien, Mortgage or security
interest created pursuant to the Collateral Documents to which Guarantor is a
party.
7. Expenses. Guarantor agrees that if a default occurs hereunder,
Guarantor will reimburse the Agent and each Lender for all costs and expenses
(including, without limitation, reasonable attorneys' fees actually incurred)
incurred by the Agent or such Lender, whether or not suit is instituted, in
enforcing or exercising any rights, powers, privileges or remedies granted to
the Agent or such Lender hereunder and for all reasonable costs and expenses of
the Agent or such Lender incurred in connection with the administration or
enforcement hereof.
8. Remedies Cumulative. The amount and/or extent of liability of
Guarantor, and all rights, powers and remedies of the Agent and the Lenders
hereunder and under any other agreement now or at any time hereafter in force
among the Agent and the Lenders and Guarantor relating to the Guaranteed
Obligations, shall be cumulative and not alternative, and such rights, powers
and remedies shall be in addition to all rights, powers and remedies given to
the Agent and the Lenders by law.
9. Joint and Several Liability; Successive Action; Exercise of Rights;
Counterparts. The agreements, obligations, warranties and representations of
Guarantor hereunder are joint, several, and joint and several, and are
independent of the obligations of Borrower and General Partner, and, in the
event of any default hereunder, a separate action or actions may be brought and
prosecuted against Guarantor or any other guarantor of them whether or not
Borrower or General Partner is joined thereon or a separate action or actions is
brought against Borrower or General Partner. The Agent and the Lenders may
maintain successive actions for other defaults. The rights of the Agent and the
Lenders hereunder shall not be exhausted by its exercise of any of its rights or
remedies or by any such action or by any number of successive actions. This
Guaranty may be executed in counterparts, and each such counterpart for all
purposes shall be deemed an original, and all such counterparts together shall
constitute but one and the same agreement.
10. Severability. Should any one or more provisions of this Guaranty be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
11. Successors and Assigns. This Guaranty shall inure to the benefit of
the Agent and each Lender, their respective successors and assigns, including
any Assignee under the Loan Agreement, and shall bind the heirs, executors,
administrators, successors and assigns of Guarantor. This Guaranty is assignable
by the Agent and each Lender in connection with the assignment of all or any
portion of the Agent's or such Lender's rights under the Loan Agreement, and
when so assigned, Guarantor shall be liable to the assignees under this Guaranty
without in any manner affecting the liability of Guarantor hereunder with
respect to any of the Guaranteed Obligations retained by any assigning Lender. A
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copy of each such assignment shall be delivered to Guarantor. Each reference
herein to powers or rights of the Agent or any Lender shall also be deemed a
reference to the same power or right of such assignees, to the extent of the
interest assigned to them.
12. Governing Law. This Guaranty shall be construed and interpreted
in accordance with, and shall be governed by, the laws of the State of
Georgia, except to the extent that United States federal law permits Lenders
to contract for, charge or receive a greater amount of interest than is
permitted under Georgia law.
The Agent or any Lender may bring any action or proceeding to
enforce its rights under this Guaranty in any court of competent jurisdiction.
13. Bankruptcy. So long as any Guaranteed Obligations shall be owing
to Lenders, Guarantor shall not, without the prior consent of all Lenders,
commence or join with any other person in commencing any bankruptcy,
reorganization or insolvency proceedings of or against Borrower or General
Partner. The obligations of Guarantor under this Guaranty shall not be
altered, limited or affected by any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Borrower or General Partner or by any defense
which Borrower or General Partner may have by reason of the order, decree or
decision of any court or administrative body resulting from any such
proceeding. In the event that all or any portion of the Guaranteed Obligations
is paid or performed by Borrower or General Partner, the obligations of
Guarantor hereunder shall continue and remain in full force and effect in the
event that all or any part of such payment(s) or performances is avoided or
recovered directly or indirectly from the Agent or any Lender as a preference,
fraudulent transfer or otherwise in such proceeding.
14. Miscellaneous.
(a) Except as provided in any written agreement now or at any
time hereafter in force between Lender and Guarantor, the Loan Agreement, the
Collateral Documents, the Loan Documents and this Guaranty shall constitute
the entire agreement of Guarantor with Lenders with respect to the Guaranteed
Obligations, and no representation, understanding, promise or condition
concerning the subject matter hereof shall be binding upon Lenders unless
expressed herein or therein.
(b) No provision of this Guaranty or right of the Agent or any
Lender hereunder can be waived nor can Guarantor be released or exonerated
from Guarantor's obligations hereunder except in accordance with Section 12.6
of the Loan Agreement. No such waiver shall be applicable except in the
specific instance for which given. The captions of this Guaranty are inserted
for convenience only and shall have no effect upon the construction or
interpretation hereof.
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(c) Wherever in this Guaranty the context so requires,
reference to the neuter, masculine or feminine shall be deemed to include each
of the other, and reference to either the singular or the plural shall be
deemed to include the other.
(d) Unless otherwise provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be mailed,
telecopied or delivered as follows:
If to the Guarantor:
CBL & Associates Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
CBL & Associates Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Finance Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Loan Administration Manager
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Paragraph. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, upon confirmation of transmission;
(iii) if hand delivered, when delivered, and (iv) if by overnight courier
service, when delivered. Agent shall not incur any liability to the Guarantor,
the Borrower or any other Loan Party (as that term is defined in the Loan
Agreement) (nor shall the Agent incur any liability to the Lenders) for acting
upon any notice referred to in this Guaranty which the Agent believes in good
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faith to have been given by a Person (as that term is defined in the Loan
Agreement) authorized to deliver such notice or for otherwise acting in good
faith hereunder.
(e) TIME IS OF THE ESSENCE IN THIS GUARANTY.
(f) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS GUARANTY OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
GUARANTOR AND LENDERS WITH RESPECT TO THIS GUARANTY OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING. AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GUARANTOR HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT LENDER MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
GUARANTOR TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
INITIAL:__________
EXECUTED and sealed as of the day and year first above written.
"GUARANTOR"
CBL & ASSOCIATES PROPERTIES, INC., a Delaware corporation
By:_______________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
(CORPORATE SEAL)
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EXHIBIT G
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Unsecured Credit Agreement dated as of August
__, 2004 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among CBL & Associates Limited Partnership
(the "Borrower"), CBL & Associates Properties, Inc. (the "Parent") the financial
institutions party thereto and their assignees under Section 12.5 thereof (the
"Lenders"), ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given to them in the
Credit Agreement.
Pursuant to Section 8.3 of the Credit Agreement, the undersigned hereby
certifies on behalf of the Borrower to the Agent and the Lenders that:
1. (a) The undersigned has reviewed the terms of the Credit Agreement
and has made a review of the transactions, financial condition and other affairs
of the Borrower and its Subsidiaries as of, and during the relevant accounting
period ending on, ________________, 200__ and (b) such review has not disclosed
the existence during such accounting period, and the undersigned does not have
knowledge of the existence, as of the date hereof, of any condition or event
constituting a Default or Event of Default except as set forth on Schedule 2
hereto, which accurately describes the nature of the condition(s) or event(s)
that constitute (a) Default(s) or (an) Event(s) of Default and the actions which
the Borrower (is taking) (is planning to take) with respect to such condition(s)
or event(s).
2. Schedule 1 attached hereto accurately and completely sets forth the
calculations required to establish compliance with Section 9.1 of the Credit
Agreement on the date of the financial statements for the accounting period set
forth above.
3. As set forth on Schedule 1 attached hereto, the Leverage Ratio as of
the period ending on _______ is ________. Accordingly, pursuant to the Credit
Agreement, the Applicable LIBOR Rate Margin for the period commencing _________
and ending ___________ is __________.
4. As of the date hereof, (a) no Event of Default exists other than as
set forth on Schedule 2 attached hereto, and (b) the representations and
warranties of the Borrower, the Parent and the other Loan Parties contained in
the Credit Agreement and the other Loan Documents are true and correct in all
material respects, except to the extent such representations or warranties
specifically relate to an earlier date or such representations or warranties
become untrue by reason of events or conditions otherwise permitted under the
Credit Agreement or the other Loan Documents.
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IN WITNESS WHEREOF, the undersigned has signed this Compliance Certificate
on and as of __________________, 200___.
________________________________
Name:___________________________
Title:__________________________
110
Compliance Certificate
Schedule 1
Compliance Certificate
Schedule 2
