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10-K
CBL & ASSOCIATES PROPERTIES INC · Mar 3, 10:23 AM ET
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CBL & ASSOCIATES PROPERTIES INC 10-K
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Contents
189
Article IDEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
1.03 Accounting Terms.
1.04 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as applicable).
Article IITHE LOAN
2.01 The Loans.
2.02 Use of Proceeds. (a) Existing Borrowers used the proceeds of the Existing Loan solely to: (i) pay expenses, costs and fees due from Existing Borrowers and incurred through the Closing Date in connection with the transactions contemplated by the Loan Documents as evidenced by a “sources and uses” summary or closing statement executed by Existing Borrowers and approved by Administrative Agent; (ii) make a loan to Sole Member in the amount of the advances under the Existing Loan received by Existing Borrowers under the Existing Loan Agreement, which loan is evidenced by the Sole Member Promissory Note, which loan proceeds were disbursed to Parent and used to pay in full all outstanding amounts under or in respect of the Existing Financing, and (iii) pay the other amounts set forth on Schedule 2.02 to the Existing Credit Agreement, including (on or about the Closing Date) depositing funds into the Real Estate Tax Account in the amount of $1,775,567.67 relating to Tax Funds, and (b) Borrowers will use the proceeds of the New Loan solely to pay a portion of the purchase price payable under the New Projects Acquisition Agreement and expenses, costs and fees due from Borrowers and incurred through the Restatement Closing Date in connection with the transactions contemplated by the Loan Documents, in each case as evidenced by a “sources and uses” summary or closing statement executed by Borrowers and approved by Administrative Agent, including (on or about the Restatement Closing Date) depositing funds into the Real Estate Tax Account in the amount of $1,345,516.45 relating to Tax Funds. In no event shall any proceeds of the Loans be used directly or indirectly by any Person (A) for any personal, family, household or agricultural purposes, or (B) for the purpose, whether immediate, incidental or ultimate, of purchasing, acquiring or carrying any “margin stock” (as such term is defined in Regulation U promulgated by the FRB (or any successor)) or to extend credit to others directly or indirectly for the purpose of purchasing or carrying any such margin stock.
2.03 Prepayments.
2.04 Repayment of Loans. The outstanding principal balance of each of the Loans, all accrued and unpaid interest thereon and all other Obligations not previously paid shall be due and payable in full, and shall be repaid in full, on the Maturity Date (or such earlier date on which the Loans or portion of the Loans becomes due and payable as provided in the Loan Documents). If any Loan becomes due and payable on or prior to a Yield Maintenance Termination Date, whether on the Maturity Date, upon acceleration (whether by election or automatically), or on such other earlier date on which such Loan or portion of such Loan becomes due and payable as provided in the Loan Documents (including, without limitation, upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under any Debtor Relief Law, including, upon the occurrence of an Event of Default pursuant to Section 8.01(f)), the applicable Yield Maintenance Amount shall be due and payable on such repayment
date. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE YIELD MAINTENANCE AMOUNT. Each Loan Party expressly agrees (to the fullest extent that it may lawfully do so) that: (a) the Yield Maintenance Amount is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (b) THE YIELD MAINTENANCE AMOUNT DOES NOT CONSTITUTE, AND SHALL NOT BE DEEMED OR CONSIDERED TO BE, UNMATURED INTEREST ON ANY LOAN OR OTHER AMOUNT AND NO LOAN PARTY SHALL ARGUE UNDER ANY CIRCUMSTANCE THAT THE YIELD MAINTENANCE AMOUNT CONSTITUTES UNMATURED INTEREST ON ANY LOAN; (c) the Yield Maintenance Amount shall be payable notwithstanding the then prevailing market rates at the time payment is made; (d) there has been a course of conduct between Lenders and Loan Parties giving specific consideration in this transaction for such agreement to pay the Yield Maintenance Amount; (e) each Loan Party shall be estopped hereafter from claiming differently than as agreed to in this paragraph; and (f) in view of the impracticability and extreme difficulty of ascertaining actual damages, the parties mutually agree that the Yield Maintenance Amount is a reasonable calculation of Lenders’ lost profits as a result of any such prepayments and is not a penalty.
2.05 Interest.
2.06 Fees. Borrowers shall pay to Administrative Agent (for the account of Administrative Agent, any Affiliate of Administrative Agent and/or Lenders as they may determine) (a) the New Loan Structuring Fee on the Restatement Closing Date and (b) all other fees and other amounts due under any Fee Letter in the amounts, to the payees and at the times specified in such Fee Letter. Borrowers shall pay to Lenders and Administrative Agent such fees as shall have been separately agreed upon in writing, if any, in the amounts and at the times so specified. The foregoing fees shall be fully earned when due and payable and when paid shall not be refundable for any reason whatsoever.
2.07 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. All computations of fees and interest shall be made on the basis, as applicable, of a 365-day year and actual days elapsed on or with regard to the Loans. Interest shall accrue on the Loans for the day on which such Loan is made, and shall not accrue on any Loan, or any portion thereof, for the day on which such Loan or such portion is paid so long as such payment is received by Administrative Agent on or before 4:00 p.m., Central time, on such day of payment. Each determination by Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
2.08 Evidence of Debt. The portion of each Loan made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of each Loan made by Lenders to the applicable Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through Administrative Agent, Borrowers shall execute and deliver to such Lender (through Administrative Agent) a Note, which shall evidence such Lender’s portion of each Loan as provided herein in addition to such accounts or records. Each Lender may attach schedules to its Note evidencing its portion of each Loan and endorse thereon the date, amount and maturity of such Loan and payments with respect thereto.
2.09 Payments Generally; Administrative Agent’s Clawback.
2.10 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any Loan due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its Applicable Percentage or (b) Obligations in respect of any Loan owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its Applicable Percentage, then the Lender receiving such greater proportion shall (i) notify Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the applicable Loan of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by all Lenders ratably in accordance with the aggregate amount of Obligations in respect of each applicable Loan then due and payable to Lenders or owing (but not due and payable) to Lenders, as the case may be, provided that:
2.11 Release of Funds from the Loss Proceeds Account. The Loss Proceeds Account shall be under the sole and exclusive control of Administrative Agent pursuant to the terms of an Account Control Agreement. Provided the conditions applicable to the use of Extraordinary Receipts to pay for the repair and restoration of a Project following a casualty or condemnation set forth in Section 6.24 or Section 6.25, as applicable, are satisfied, funds in the Loss Proceeds Account may be used to pay costs of repair/restoration as described in Section 6.24 or Section 6.25, as applicable, and as approved by Administrative Agent, or shall otherwise be paid, prepaid or distributed as provided for in Section 6.24 or Section 6.25 hereof, as applicable. No funds may be released or transferred from the Loss Proceeds Account unless approved by Administrative Agent.
2.12 Real Estate Tax Account. The Real Estate Tax Account shall be under the sole and exclusive control of Administrative Agent pursuant to the terms of an Account Control Agreement. Tax Funds shall be deposited by Borrowers into the Real Estate Tax Account in accordance with the provisions of Section 6.23 of this Agreement. Other than the Minimum Real Estate Tax Account Funding, and for so long as no Default or Event of Default shall have occurred and be continuing and Borrowers have otherwise complied with the provisions of this Section 2.12, Administrative Agent shall release any or all Tax Funds to the applicable Borrowers for the payment on behalf of such Borrowers of Property Taxes for the Open-Air Projects and the New Projects; provided that evidence of payment in full in Dollars of each of the relevant Property Taxes with such Tax Funds shall be provided by the applicable Borrowers to the Administrative Agent within five (5) Business Days after each date on which such Tax Funds are so released (but only to the extent such evidence has not been previously so provided to the Administrative Agent). If the balance of the Real Estate Tax Account shall at any time be less than the Minimum Real Estate Tax Account Funding amount, Borrowers shall, within five (5) Business Days after notice thereof (or, if earlier, Borrowers' knowledge thereof), pay to the Administrative Agent in Dollars by wire transfer of immediately available funds an amount at least equal to the amount of such balance. Borrowers shall furnish the Administrative Agent with all bills, statements and estimates for Property Taxes received by or available to a Borrowers at least thirty (30) days prior to the date on which such Property Taxes first become payable. If the amount of the Tax Funds shall exceed the amounts due for Property Taxes, the Administrative Agent, in its sole discretion, may either return any excess to the Real Estate Tax Account or credit such excess against future payments to be made with the Tax Funds. The amounts in respect of Property Taxes in respect of each Open-Air Project and each New Project that are deposited into the Real Estate Tax Account on the Closing Date shall be sufficient (when combined with the monthly deposits for Property Taxes) to fund the Real Estate Tax Account in order to pay the Property Taxes as they become due and payable. Any Tax Funds remaining after Payment in Full shall be returned to Borrowers. All out-of-pocket costs and
expenses incurred by the Administrative Agent in connection with holding and disbursing the Tax Funds (including, without limitation, the costs and expenses of the inspections, if any, required hereunder) shall be paid by Borrowers on demand by the Administrative Agent.
2.13 Revenue Accounts. All revenues and other cash received in respect of the operation of the Projects, other than the proceeds of any Loan, proceeds from a Disposition and amounts to be deposited in the Loss Proceeds Account or the Real Estate Tax Account, shall be deposited into one or more Revenue Accounts.
2.14 Repair Reserve Account. The Repair Reserve Account shall be under the sole and exclusive control of Administrative Agent pursuant to the terms of an Account Control Agreement. Provided that Administrative Agent is provided with such supporting documents and other information as Administrative Agent may reasonably request, Administrative Agent shall disburse funds from the Repair Reserve Account to make the repairs set forth on Schedule 2.14 hereof in an amount equal to the amount requested by Borrowers’ Representative, provided that: (a) Borrowers’ Representative submits a funds disbursement request to Administrative Agent, which request shall set forth a general description of the use of the Repair Reserve Account for which such disbursement is requested, together with copies of all supporting invoices; (b) such request is delivered at least five (5) Business Days prior to the date on which Borrowers’ Representative requests such disbursement be made, provided that, with respect to the New Projects, Administrative Agent shall not require such five (5) Business Day prior notice as it relates to immediate repairs determined necessary by a third-party property condition assessment satisfactory to Administrative Agent; (c) [reserved]; (d) Administrative Agent shall have the right to confirm (by an inspection conducted at Borrowers’ expense if any repair work for a Project exceeds $500,000.00) performance of the work associated with such use of the Repair Reserve Account; (e) on the date such request is received by Administrative Agent and on the date such disbursement is to be made, no Default or Event of Default shall exist or be continuing; and (f) the request for disbursement is accompanied by a Responsible Officer’s certificate certifying that (i) such funds will be used to reimburse the applicable Borrower for, or to pay directly to the contractor for, the subject repairs, (ii) the subject repairs have not been the subject of a previous disbursement, (iii) any construction work associated with the related use of the Repair Reserve Account has been completed (or will be completed to the extent of the requested disbursement) in a good and workmanlike manner and in accordance with all applicable Laws and (iv) after completion of the subject repairs, the applicable Project shall be free and clear of all Liens, other than Liens permitted hereunder. Once all required work has been completed for a Project in accordance with the preceding requirements, any funds that remain in the Repair Reserve Account allocated for such Project shall be disbursed to Borrowers. Administrative Agent shall not be required to disburse funds from the Repair Reserve Account more frequently than twice each calendar month.
2.15 Cash Accounts upon an Event of Default. Upon the occurrence and during the continuance of an Event of Default, amounts provided for in Sections 2.12, 2.13 or 2.14 may be withheld or applied by Administrative Agent in any manner Administrative Agent so elects.
2.16 Intentionally Omitted.
2.17 Disposition(s), Release(s) of Collateral.
2.18 Substitution of Collateral/Borrower.
2.19 Intentionally Omitted.
2.20 Extension of Maturity Date.
2.21 Additional Matters Relating to Term SOFR.
Article IIITAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
3.02 Increased Costs.
3.03 Mitigation Obligations; Designation of a Different Lending Office. If any Lender requests compensation under Section 3.02, or Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.02, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignments (excluding any costs related to a physical relocation of a Lending Office).
3.04 Survival. All of Borrowers’ obligations under this Article III shall survive repayment of all Obligations hereunder and any resignation of Administrative Agent.
Article IVCONDITIONS PRECEDENT TO INITIAL BORROWING
4.01 Conditions of Borrowing of the Existing Loan. The obligation of Initial Lender to make and advance the proceeds of the Existing Loan under the Existing Credit Agreement on the Closing Date was subject to satisfaction and/or waiver by Initial Lender of each of the conditions precedent set forth in Section 4.01 of the Existing Credit Agreement, and Borrowers and Guarantors acknowledge and agree that such conditions precedent were either satisfied or waived and that the Existing Loan was advanced and remains outstanding as and to the extent set forth in Section 2.01(a).
4.02 Conditions of Borrowing of the New Loan. The obligation of Initial Lender to make and advance the proceeds of the New Loan under this Agreement on the Restatement Closing Date is subject to the satisfaction and/or waiver by Initial Lender of each of the following conditions:
Article VREPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power. Each Loan Party and each of its Subsidiaries (a) if an entity, is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under any Loan Documents to which it is a party, and (c) if an entity, is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license.
5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party that is an entity of each Loan Document to which such Loan Party is a party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) if an entity, contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.
5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person (other than as expressly contemplated by the Loan Documents) is necessary or required in connection with (a) the execution, delivery or performance of obligations by any Loan Party of the Loan Documents, or the validity or enforceability thereof, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, or (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof), except the filing of financing statements in appropriate form in the appropriate filing offices and the recording of the Mortgages and any related fixture filing in the appropriate form in the appropriate recording offices.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party hereto and thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party that is party hereto and thereto in accordance with its terms (subject, in each case, to bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and general principles of equity).
5.05 Litigation. There are no actions, suits, proceedings, claims or disputes pending or threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against any Borrower or against any of their properties or revenues, except as set forth on Schedule 5.05 hereto.
5.06 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.07 Ownership of Property; Leases.
5.08 Environmental Compliance. Each Borrower is in compliance in all material respects with all Environmental Laws and there have been no claims alleging potential liability or responsibility for violation of any Environmental Law on the businesses, operations and properties of such Borrower which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.09 Insurance. Each Project and the other Property of each Borrower is insured in accordance with the Insurance Requirements.
5.10 Taxes. Each Borrower has filed all Federal, state and other material tax returns and reports required to be filed as of the Restatement Closing Date (or has filed extension requests within the permitted time frames), and has paid all Federal, state and other taxes, assessments, fees and other governmental charges levied or imposed upon it, its Project or its properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Borrower or any Project that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
5.11 ERISA Compliance.
5.12 Subsidiaries; Equity Interests; Loan Parties. No Borrower has any Subsidiaries (although it is acknowledged that CBL Southgate Mall, LLC has or will become the associate member of that certain non-profit corporation known as Southgate Mall Merchants Association pursuant to the Southgate Mall Merchants Association Documents). All of the issued and outstanding Equity Interests in each Borrower have been duly and validly issued and are owned by Sole Member. Sole Member has no Subsidiaries other
than Borrowers. All of the outstanding Equity Interests in Sole Member have been duly and validly issued and are owned by Parent. All Equity Interests in the direct or indirect owners of the Equity Interests in each Borrower have been duly and validly issued and are owned by the Persons described in the organizational chart included on Schedule 5.12A, free and clear of all Liens, and in the percentages set forth in such organizational chart. Set forth on Schedule 5.12B is a complete and accurate list of all Loan Parties, showing as of the Restatement Closing Date (as to each Loan Party) the jurisdiction of its incorporation or formation (if an entity), the address of its principal place of business and its U.S. taxpayer identification number (if any). The copy of the Organization Documents of each Loan Party and each amendment thereto provided pursuant to Sections 4.02(a)(v) and (vi) is a true and correct copy of each such document, each of which is valid and in full force and effect.
5.13 Margin Regulations; Investment Company Act.
5.14 Disclosure. Each Borrower has disclosed to Administrative Agent and Lenders all material agreements, instruments and other documents and corporate or other restrictions to which it or any other Loan Party is subject, and all other material matters known to it. No report, financial statement, certificate or other information furnished by or on behalf of any Loan Party to Administrative Agent or any Lender in connection with the transactions contemplated by the Existing Credit Agreement or by this Agreement hereby or the negotiation of the Existing Credit Agreement or this Agreement or delivered under the Existing Credit Agreement or this Agreement or under any other Loan Document (in each case as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
5.15 Compliance with Laws; Permits. Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws, orders, writs, injunctions and decrees applicable to it or to its properties. Each Borrower holds all Permits, licenses and franchises that are reasonably necessary for the operation of its businesses and the applicable Project.
5.16 Intellectual Property; Licenses, Etc. Each Borrower owns, or possesses the right to use, all of the material trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of the applicable Project, without conflict with the rights of any other Person, and Schedule 5.16 sets forth a complete and accurate list of all such IP Rights (except to the extent covered by reasonably adequate licensing arrangements). To the best knowledge of each Borrower, other than to the extent of IP Rights licensed to or for the benefit of such Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by such Borrower that is material to the business of such Borrower infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of such Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.17 Solvency. Borrowers, taken as a whole, and Loan Parties, taken as a whole, have (both immediately prior to the Restatement Closing Date and immediately after giving effect to the advancing of the Loans, the execution and delivery of the Loan Documents and the granting of Liens thereunder and the consummation of all other transactions contemplated under the Loan Documents to occur on or before the Restatement Closing Date), on a consolidated basis, Solvency.
5.18 Casualty, Etc. Neither the businesses nor the properties of any Borrower are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance).
5.19 Labor Matters. Except as set forth on Schedule 5.19, there are no collective bargaining agreements or Multiemployer Plans covering the employees of any Borrower or any Affiliate of such Borrower as of the Restatement Closing Date and neither such Borrower nor any of its Affiliate has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five (5) years.
5.20 Collateral Documents. The provisions of the Collateral Documents are effective to create, in favor of Administrative Agent (for the benefit of Secured Parties), valid and perfected first priority Liens on all of the Collateral. All governmental and other third party approvals necessary or desirable to perfect and protect, and establish and maintain the priority of, such Liens have been duly effected or taken.
5.21 Compliance with OFAC and the U.S. Patriot Act. Neither any Loan Party nor Sponsor and, to the knowledge of any Borrower, no director, officer, agent, employee or Affiliate of any Loan Party (a) has been or is currently subject to any Sanctions; (b) has been or is a Sanctioned Person; (c) has failed to be (or have been) in full compliance with the requirements of the U.S. Patriot Act, any Anti-Terrorism Law, Anti-Corruption Law or other applicable anti-money laundering laws and regulations, laws and regulations related to terrorism, or Sanctions; (d) has been previously indicted for, convicted of, or is currently under investigation by any Governmental Authority for a U.S. Patriot Act Offense; (e) is a Restricted Party; or (f) has engaged in dealings or transactions with any Restricted Party.
5.22 Conduct of Business. The only business conducted by each Borrower is the business of acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing, financing, refinancing, disposing of and operating the applicable Project; entering into this Agreement and the other Loan Documents with Administrative Agent and Lenders and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing.
5.23 Operating Budget; Capital Budget.
5.24 Material Contracts. All Material Contracts that are currently in effect are listed on Schedule 5.24 attached hereto. The services to be performed and other rights granted pursuant to the Material Contracts comprise all of the material services, materials and property interests required to operate the applicable Project in accordance with the Loan Documents.
5.25 Utility Services. All utility services necessary or reasonably required for the operation of each Project for its intended purposes, including, without limitation, natural gas (except with regard to Projects identified on Schedule 5.25), electricity, water supply, sanitary sewer, internet and waste water discharge, are available at each Project, are fully connected and operational and are currently providing services to each Project.
5.26 Permits. All Permits required for the operation of each Project by the applicable Borrower have been issued to such Borrower and are in full force and effect, or the applicable Tenant is required to have such Permits under the relevant Lease.
5.27 Easements and Public Access. (a) All easements, cross easements, licenses, air rights and rights of way or other similar property interests, if any, necessary or reasonably required for the full utilization of each Project and the existing Improvements for their intended purposes have been obtained, are described in the First Lien Policies and are in full force and effect, (b) each Project has rights of access to public roads and (c) all roads necessary for the use of each Project for its intended purposes have been completed and dedicated to public use and accepted by all applicable Governmental Authorities.
5.28 Flood Zone. Except as disclosed on Schedule 5.28, none of the Projects is located in an area identified by the Federal Emergency Management Agency as a special flood hazard area. Flood insurance approved by Administrative Agent has been obtained by the applicable Borrower and remains in effect as of the Restatement Closing Date for each of the Projects disclosed on Schedule 5.28, provided that a portion of the Ashland Mall identified as being located at 550 Winchester Avenue, Ashland, Kentucky is leased by J.C. Penney, Inc. pursuant to a ground lease which provides that the tenant is wholly responsible to maintain insurance on its building and therefore no flood insurance is maintained by any Borrower for such portion of such Project.
5.29 Physical Condition. Each Project, including all buildings, Improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, to the extent they exist on such Project (provided, that, with respect to each Project that is leased to a third party or is ground leased by a Borrower as ground lessor, each such Project, to each such relevant Borrower's knowledge), in each case, are in good condition, order and repair in all material respects except as set forth in any property condition report previously delivered to Administrative Agent and for those required repairs identified on Schedule 2.14 attached hereto which will be completed in accordance with the timeframe set forth on Schedule 6.27. Except as set forth in any property condition report previously delivered to Administrative Agent, there exists no geotechnical, structural or other material defects or damages in any of the Projects, whether latent or otherwise, and, neither any Borrower or any other Loan Party has received notice from any insurance company, bonding company or any other Person of any defects or inadequacies in any of the Projects, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.
5.30 Boundaries. All of the existing Improvements lie wholly within the boundaries and building restriction lines of each Project, no improvements on adjoining properties encroach upon any of the Projects, and no easements or other encumbrances affecting any of the Projects encroach upon any of
the existing Improvements, in each case so as to affect in any materially adverse respect the value or marketability of any of the Projects except those which constitute Permitted Encumbrances, are set forth on the Surveys and are insured against by the First Lien Policies.
5.31 FIRPTA. No Loan Party is a “foreign person” within the meaning of Sections 1445 or 7701 of the Code.
5.32 Certain Fees. Except for any fee which may be due by Borrowers to the Exclusive Placement Agent, no broker’s or finder’s fee or commission will be payable with respect to the transactions contemplated by the Loan Documents.
5.33 Financial Information. All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and Operating Expenses and rent rolls, that have been delivered to Administrative Agent or any Lender in respect of Borrowers, Loan Parties and/or the Projects (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrowers, the other Loan Parties or the Projects, as applicable, as of the date of such reports, and (c) have been prepared in accordance with GAAP (except for the Excluded Items) throughout the periods covered, except as disclosed therein. In accordance with reporting prescribed by GAAP, neither any Borrower nor any other Loan Party has any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as reflected in said financial statements, except for the Permitted Encumbrances or as otherwise may have been disclosed to Administrative Agent in writing. Since the date of the latest such financial statements, except as may have been otherwise disclosed in writing to Administrative Agent, there has been no material adverse change in the financial condition, results of operations or business of any Borrower or other Loan Party from that set forth in said financial statements.
5.34 Payment of Tenant Improvement Costs and Leasing Commissions. To the extent cash flow is or is forecasted to be insufficient therefor, Borrowers have made arrangements for obtaining equity funds sufficient to pay all costs of tenant improvements and leasing commissions with regard to (a) existing Leases, to the extent such costs have not previously been paid, and (b) all Leases entered into subsequent to the date hereof.
5.35 Ground Leases. Schedule 5.35 sets forth a complete and accurate list of all Ground Leases. Each Ground Lease is in full force and effect in accordance with its terms. The applicable Borrower has not waived, canceled or surrendered any of its rights under any such Ground Lease. The applicable Borrower is the sole owner of, and has good and marketable title to, the relevant Leasehold Estate. Except as set forth on Schedule 5.35, the applicable Leased Premises are free and clear of all Liens, encumbrances and other matters affecting title, other than the Lien of the Mortgage thereon. There is no existing Ground Lessee Default under any Ground Lease and no event has occurred or circumstance exists which, with the passage of time or the giving of notice, or both, would constitute a Ground Lessee Default under any Ground Lease. There is no existing Ground Lessor Default under any Ground Lease and no event has occurred or circumstance exits which, with the passage of time or the giving of notice, or both, would constitute a Ground Lessor Default under any Ground Lease.
5.36 Purchase of New Projects. (a) CBL & Associates Management, Inc., as buyer under the New Projects Acquisition Agreement, has previously assigned all of its rights under such agreement to New Borrowers (except for the right to purchase the Dillard’s Men’s and Children’s Store at Southgate Mall), (b) New Borrowers are, concurrently herewith, purchasing the New Projects for the consideration set forth in, and otherwise in accordance with all of the terms and provisions of, the New Projects Acquisition Agreement and without any waiver of any such terms and provisions except as may have been approved in
writing by Administrative Agent, and (c) accordingly, New Borrowers are, as of the Restatement Closing Date, the fee owners of the New Projects free and clear of any Liens other than Permitted Encumbrances.
5.37 Special Purpose Entities. Each Borrower is a special purpose entity that (a) was created in connection with the transactions contemplated by the Loan Documents, (b) did not engage in any business prior to its acquisition of the Mortgaged Property owned by it, (c) does not and will not engage in any business other than its ownership and operation of the Mortgaged Property owned by it consistent with this Agreement and the other Loan Documents and (d) does not and will not have, incur or permit to exist any Indebtedness or Liens affecting its Property except as permitted by this Agreement.
5.38 Status of Leases. (a) Neither any Borrower nor any other Loan Party has any knowledge of any default on the part of any Tenant or landlord under, or any other party to, any Lease, except as set forth on Schedule 5.38 hereto, and (b) each Lease is bona fide and contains therein all of the agreements, understandings, representations, warranties and other terms and provisions applicable to such Lease and is in full force and effect in accordance with its terms
5.39 Layton Hills and MNVL. Neither Layton Hills nor MNVL engages in any business or owns or leases any Property (other than de minimis Property typically owned or leased by a non-active entity).
5.40 Representations and Warranties in Schedules. Each representation and warranty contained in any Schedule to this Agreement is incorporated into this Section 5.40 by reference and made a part hereof as if set forth directly in this Section 5.40.
5.41 Reliance on Representations and Warranties. Borrowers acknowledge that they make the representations and warranties set forth in this Article V to induce Lenders and Administrative Agent to enter into this Agreement and the other Loan Documents and that Lenders and Administrative Agent have entered into this Agreement and the other Loan Documents, and Initial Lender has or is making the Loans and other financial accommodations to Borrowers as provided herein and therein, on the basis of and in reliance on, each such representation and warranty.
Article VIAFFIRMATIVE COVENANTS
6.01 Financial Statements. Borrowers shall deliver to Administrative Agent and each Lender, in form and detail satisfactory to Administrative Agent and Required Lenders:
6.02 Certificates; Other Information. Borrowers shall deliver to Administrative Agent and each Lender, in form and detail satisfactory to Administrative Agent and Required Lenders, for Borrowers:
6.03 Notices. Borrowers shall notify Administrative Agent and each Lender:
6.04 Payment of Obligations. Each Borrower shall pay and discharge, as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate actions diligently conducted and adequate reserves in accordance with GAAP are being maintained by Borrowers; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property unless such claims are being contested in good faith by appropriate actions with adequate reserves established in accordance with GAAP or otherwise bonded against; and (c) all Indebtedness, as and when due and payable, but subject to any subordination and loan forgiveness provisions contained in any agreement, instrument or other document evidencing such Indebtedness.
6.05 Preservation of Existence, Etc. Each Borrower shall:
6.06 Maintenance of Properties. Each Borrower shall (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted and in accordance with any material requirements of the Material Contracts; (b) make all necessary repairs thereto and renewals and replacements thereof; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities. Each Borrower shall operate its Project in a manner consistent with prudent business practices of comparable facilities.
6.07 Maintenance of Insurance. Each Borrower shall maintain insurance with respect to its Project and its respective businesses as required by the Insurance Requirements. Within thirty (30) days
following the due date for each applicable policy of insurance, each Borrower shall provide copies of paid receipts to Administrative Agent in connection therewith.
6.08 Compliance with Laws. Each of Borrowers and Sole Member shall comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its respective businesses and properties, except in such instances in which such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted and provided further, that such contest would not give rise to a Lien or other charge against its Project and such Borrower or Sole Member (as applicable) has provided for an adequate reserve therefor in accordance with GAAP. Each of Borrowers (and Sole Member if applicable) shall maintain all permits and licenses to operate its Project.
6.09 Books and Records. Each Borrower shall (a) maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP (except for the Excluded Items) consistently applied shall be made of all financial transactions and matters involving the assets and businesses of such Borrower; and (b) maintain such books of record and account in material conformity with all applicable Laws.
6.10 Inspection Rights. Each Borrower shall permit representatives and independent contractors of Administrative Agent and Lenders collectively and on a coordinated basis to visit and inspect any of its property, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with the Senior Officers or any other executive officer of any Borrower or other Loan Party, at their own expense and at such reasonable times during normal business hours and as often as may be reasonably desired upon reasonable advance notice to such Borrower; provided, however, that if and when an Event of Default exists, Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of Borrowers at any time during normal business hours and without notice, provided if reasonable advance notice is not provided, such Borrower and its representatives shall not necessarily be available unless prior arrangements are made, but nonetheless, Administrative Agent and Lenders shall have the access required hereunder.
6.11 Use of Proceeds. Borrowers shall use the proceeds of the Loans as provided in Section 2.02 above.
6.12 Covenant to Give Security. At any time upon request of Administrative Agent (subject to applicable Laws), each Loan Party shall promptly execute and deliver any and all further agreement, instruments and other documents, and take all such other actions, as Administrative Agent may reasonably deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, any guaranties, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of trust, security agreement supplements and other security and pledge agreements without increasing the obligations of any Loan Party in any manner not provided for or anticipated in the Loan Documents to carry out the intents and purposes of the Loan Documents.
6.13 Compliance with Environmental Laws. Each Borrower shall comply, and cause all Tenants and other Persons operating or occupying any part of the applicable Project to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of their properties, in accordance with the requirements of all Environmental Laws; provided, however, that no Borrower shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.
6.14 Preparation of Environmental Reports. At the request of Required Lenders from time to time, provide to Required Lenders, within 60 days after such request, at the expense of Borrowers (but if there is no reasonable basis to conclude that the relevant environmental reports delivered by the relevant Borrowers pursuant to Section 4.02(c)(i) above are no longer accurate, at the expense of Administrative Agent), a new environmental site assessment report for all or any part of the Projects, prepared by an environmental consulting firm acceptable to Administrative Agent, indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance, removal or remedial action in connection with any Hazardous Materials on such properties; without limiting the generality of the foregoing, if Administrative Agent reasonably determines at any time that a material risk exists that any such report will not be provided within the time referred to above, Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of Borrowers, and each Borrower hereby grants to Administrative Agent, Lenders, such firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the rights of Tenants, to enter onto its respective properties to undertake such an assessment.
6.15 Further Assurances. Promptly upon request by Administrative Agent, or any Lender through Administrative Agent, each Loan Party shall (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, which defect or error Administrative Agent in its reasonable judgment deems material, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as Administrative Agent, or any Lender through Administrative Agent, may reasonably require from time to time in order to (i) carry out the purposes of the Loan Documents, (ii) to the fullest extent permitted by Laws, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto Secured Parties the rights granted or now or hereafter intended to be granted to Secured Parties under any Loan Document or under any other agreement, instrument or other document executed in connection with any Loan Document to which any Loan Party is or is to be a party, and cause each of its Subsidiaries which is or is to be a party to do so.
6.16 [Intentionally Omitted].
6.17 [Intentionally Omitted].
6.18 Material Contracts; Leases. Each Borrower shall perform and observe in all material respects all the terms and provisions of each Material Contract (including the Property Management Agreements set forth on Schedule 6.18) to be performed or observed by it, maintain each such Material Contract in full force and effect, and enforce each such Material Contract in accordance with its terms. No Material Contract (including any Material Lease or Existing Lease that, if so amended or modified would constitute a Material Lease if such Lease were a new Lease), may be amended, restated, amended and restated, or otherwise modified, or entered into, or terminated, unless the consent of Administrative Agent in its sole and absolute discretion thereto is given and, in connection with the assumption of an existing Material Lease, the relevant Borrower shall provide to Administrative Agent financial statements of the proposed new Tenant that would assume such Material Lease. All Leases in respect of each Project shall
be subject and subordinate to the Loan Documents and the Liens granted pursuant to the Collateral Documents (pursuant to the terms of the Lease or a subordination, non-disturbance and attornment agreement entered into by the applicable Tenant, Borrowers and Administrative Agent or a collateral assignment of such agreement for the benefit of Administrative Agent). No Borrower shall collect any rent from any Tenant more than one month in advance or, without limitation of the foregoing, hold any security or other deposit under a Lease, except in accordance with Laws, the applicable Lease and customary deposits for use of such Project. No Borrower shall permit any Tenant under any Lease to, and each Borrower shall cause each Tenant under each Lease not to, have any Lien or other security interest placed on or in respect of any Project (including in respect of any Project where the relevant Borrower is a Ground Lessor to such Tenant-Ground Lessee), other than the Liens of the Loan Documents thereon or Permitted Encumbrances and any leasehold financing of such Tenant-Ground Lessee that is subordinated to the Liens of the Loan Documents.
6.19 Designation as Senior Debt. Each of Borrowers and Sole Member shall designate all Obligations as “Designated Senior Indebtedness” or such other applicable designation under, and defined in, any documentation in respect of any subordinated Indebtedness of such Loan Parties.
6.20 Separateness. Each of Borrowers and Sole Member shall maintain its existence separate and distinct from any other Person. Without limiting the generality of the foregoing, except as expressly permitted pursuant to this Agreement, each of Borrowers and Sole Member shall:
6.21 Deposit Accounts. Borrowers shall maintain all Blocked Accounts with the Depository Bank, and Borrowers shall maintain all Accounts (other than the Blocked Accounts) with an Acceptable Financial Institution or the Depository Bank, subject, in each case, to each such Account being subject to an Account Control Agreement. Each of the Depository Bank and each Acceptable Financial Institution must have acknowledged and agreed to the assignment of each such Account to the Administrative Agent, and the grant of control over such Accounts to the Administrative Agent, for the benefit of the Secured Parties, pursuant to the terms of an Account Control Agreement entered into by the parties thereto.
6.22 Budgets. On or before the beginning of each calendar year, beginning with calendar year 2026, each Borrower shall deliver to Administrative Agent (i) a budget for the operations of such Borrower for the ensuing calendar year as approved by Administrative Agent in its reasonable but good faith discretion (an “Operating Budget”), and (ii) a budget for the capital expenditures of such Borrower for the ensuing calendar year as approved by Administrative Agent in its sole and absolute but good faith discretion (the “Capital Budget”). Each Operating Budget shall detail and include, by month-by-month projections, scheduled debt service, proposed Operating Revenue, and proposed Operating Expenses, for such Borrower in respect of its Project for the ensuing calendar year. Each Capital Budget shall detail and include all proposed Capital Expenditures of such Borrower in respect of its Project for the ensuing calendar year. Any revisions to the Operating Budget or the Capital Budget of any Borrower shall be promptly reported to Administrative Agent. Delivery of an Operating Budget that shows a negative cash flow for a Project shall not be considered an admission of inability to pay debts.
6.23 Real Estate Tax Account. (a) On or before the Restatement Closing Date, Borrowers shall have deposited into the Real Estate Tax Account $1,345,516.45 (i.e., the amount set forth in the definition of such term), and the amount at all times maintained in the Real Estate Tax Account shall not be less than $500,000.00 (the “Minimum Real Estate Tax Account Funding”), and (b) on each Interest Payment Date thereafter, Borrowers shall cause to be deposited into the Real Estate Tax Account an amount equal to one-twelfth (1/12) of the Property Taxes for each Open-Air Project and each New Project that Administrative Agent reasonably estimates will be payable during the next ensuing twelve (12) months in order to accumulate sufficient funds to pay all such Property Taxes at least thirty (30) days prior to their respective due dates Amounts deposited pursuant to this Section 6.23 are referred to herein as the “Tax Funds”. If, at any time, Administrative Agent reasonably determines that the Tax Funds will not be sufficient to pay the
Property Taxes for any Open-Air Project or any New Project at least thirty (30) days prior to the respective due dates, Administrative Agent shall notify the applicable Borrower of such determination and the monthly deposits for Property Taxes shall be increased by the amount that Administrative Agent estimates is sufficient to make up the deficiency at least thirty (30) days prior to the respective due dates for such Property Taxes; provided that if any such Borrower receives notice of any such deficiency after the date that is thirty (30) days prior to the date that Property Taxes are due or thirty (30) days prior to the expiration of the insurance policies, such Borrower will cause such deposit to be made within five (5) Business Days after its receipt of such notice.
6.24 Restoration Following Casualty. If any act or occurrence of any kind or nature (including any casualty for which insurance was not obtained or obtainable) shall result in damage to or destruction of a Project (such event being called a “Casualty Loss”) and the cost to repair such Casualty Loss is reasonably expected to exceed $500,000, Borrowers will give prompt written notice thereof to Administrative Agent. All Extraordinary Receipts paid or payable in connection with such Casualty Loss for any single Open-Air Project or any single New Project in excess of $1,500,000, or any single Outparcel Project in excess of $750,000, shall be paid to Administrative Agent; provided that Extraordinary Receipts of less than $1,500,000 for any single Open-Air Project or any single New Project, or less than $750,000 for any single Outparcel Project, during any 12 month period received on behalf of any individual Borrower in connection with a Casualty Loss may be retained by (or paid by the Insurer to) the applicable Borrower and held in an Account of such Borrower subject to an Account Control Agreement. Such Extraordinary Receipts retained by (or paid to) such Borrower shall be used by such Borrower to repair or restore the applicable Project, with all remaining proceeds being (a) used to make a mandatory prepayment of the Loans in accordance with Section 2.03(b)(ii) hereof or (b) with the prior written consent of Administrative Agent, retained by such Borrower. Administrative Agent shall have the right to either (i) place all Extraordinary Receipts received in connection with such Casualty Loss for any single Open-Air Project or single New Project in excess of $1,500,000, or any single Outparcel Project in excess of $750,000, during any 12 month period received in connection with a Casualty Loss in the Loss Proceeds Account for the benefit of Administrative Agent and applicable Borrower to be used to restore, repair or replace and rebuild the applicable Project as nearly as possible to its value, condition and character immediately prior to such Casualty Loss or (ii) in the case of a Casualty Loss resulting in the complete destruction of the Improvements on a Project, apply all proceeds in connection with such Casualty Loss to the payment of the Obligations in such order as Administrative Agent may elect. The applicable Borrower shall use the amounts in the Loss Proceeds Account in respect of such Casualty Loss to restore, repair, replace and rebuild the applicable Project as nearly as possible to its value, condition and character immediately prior to such Casualty Loss within three hundred sixty (360) days after receipt of applicable Permits for such restoration (with such work to commence within ninety (90) days after receipt of applicable Permits) (as such period may be extended by Administrative Agent in its sole and absolute discretion) from the date of such Casualty Loss, and any withdrawals from such Loss Proceeds Account shall be subject to the satisfaction of all conditions imposed by Administrative Agent using Administrative Agent’s standard construction loan advance procedures, including, without limitation, the requirement that any shortfall shall first be funded by the applicable Borrower. Subject to the availability of sufficient funds as above provided, each applicable Borrower hereby covenants to diligently prosecute all such restoration, repairs or replacement of the applicable Project, and agrees that all such work shall be conducted pursuant to written contracts (which contracts, if the work in question will cost in excess of $1,000,000, must be approved by Administrative Agent in writing) and free and clear of all mechanic’s or materialmen’s or other Liens or Lien claims arising from such work (unless the same are satisfied or bonded in a manner satisfactory to Administrative Agent). Any amount remaining in the Loss Proceeds Account in respect of the subject Casualty Loss that is not so used to restore, repair, replace or rebuild the applicable Project within such three hundred sixty (360) day time period (as such period may be extended by Administrative Agent in its sole and absolute discretion) shall
be (A) used to make a mandatory prepayment of the Loans in accordance with Section 2.03(b)(ii) of this Agreement or (B) with the prior written consent of Administrative Agent, retained by such Borrower. Notwithstanding anything to the contrary in this Section 6.24 or in any other Loan Document, upon the occurrence and during the continuance of an Event of Default, all Extraordinary Receipts will be paid to Administrative Agent (to the extent not on deposit in the Loss Proceeds Accounts), and all Extraordinary Receipts (including all amounts on deposit in the Loss Proceeds Accounts) may be withheld or applied by Administrative Agent in any manner Administrative Agent so elects.
6.25 Condemnation. Promptly upon any Loan Party obtaining knowledge of the institution or the threatened institution of any proceeding for the condemnation of a Project or any part thereof, Borrowers shall notify Administrative Agent of such fact. The applicable Borrower shall then file or defend its rights thereunder and prosecute the same with due diligence to its final disposition and shall cause any awards or settlements to be paid over to Administrative Agent for disposition pursuant to the terms of this Section 6.25. The applicable Borrower may be the nominal party in such proceeding, but Administrative Agent shall be entitled to participate in and be represented therein by counsel of its choice, at such Borrower’s cost, and such Borrower will deliver, or cause to be delivered, to Administrative Agent such instruments as may be requested by it from time to time to permit such participation. If a Project or any part thereof is taken or diminished in value, or if a consent settlement is entered, by or under threat of such proceeding, the award or settlement payable to the applicable Borrower by virtue of its interest in such Project shall be and hereby is assigned, transferred and set over unto Administrative Agent to be held by it, in trust, subject to the lien and security interest of the applicable Mortgage. If a Project, or any part thereof, shall be condemned or otherwise taken for public or quasi-public use under the power of eminent domain, or be transferred in lieu thereof (each, a “Condemnation Event”), all damages or other amounts awarded for the taking of, or injury to, such Project shall be paid to Administrative Agent for deposit into the Loss Proceeds Account, provided that Extraordinary Receipts of less than $750,000 in the aggregate during any 12 month period received in connection with a Condemnation Event shall be paid to and held in an Account of such Borrower subject to an Account Control Agreement. Such proceeds paid to any Borrower shall be used by such Borrower to repair or restore the applicable Project, with all remaining proceeds being (a) used to make a mandatory prepayment of the Loans in accordance with Section 2.03(b)(ii) hereof (after payment of the costs and expenses of Administrative Agent, including attorneys’ fees incurred in connection with collection of such amounts) or (b) with the prior written consent of Administrative Agent, retained by such Borrower. Administrative Agent shall have the right to either (i) place all Extraordinary Receipts received in connection with such Condemnation Event in excess of $750,000 in the aggregate during any 12 month period received in connection with a Condemnation Event in the Loss Proceeds Account for the benefit of Administrative Agent and such Borrower to be used to restore, repair or replace and rebuild the applicable Project as nearly as possible to its value, condition and character immediately prior to such Condemnation Event or (ii) in the case of a Condemnation Event of the entirety of a Project, apply all proceeds in connection with such Condemnation Event to the payment of the Obligations in such order as Administrative Agent may elect (after payment of the costs and expenses of Administrative Agent, including attorneys’ fees incurred in connection with collection of such amounts). The applicable Borrower shall use the Extraordinary Receipts in the Loss Proceeds Accounts in respect of the subject Condemnation Event to restore, repair, replace and rebuild the applicable Project as nearly as possible to its value, condition and character immediately prior to such taking within three hundred sixty (360) days after receipt of applicable Permits for such restoration (with such work to commence within ninety (90) days after receipt of applicable Permits) (as such period may be extended by Administrative Agent in its sole and absolute discretion), and any withdrawals from the Loss Proceeds Account shall be subject to the satisfaction of all conditions imposed by Administrative Agent using Administrative Agent’s standard construction loan advance procedures. Subject to the availability of sufficient funds as above provided, the applicable Borrower hereby covenants to diligently prosecute all such restoration, repairs or replacement of the
applicable Project, and agrees that all such work shall be conducted pursuant to written contracts (which contracts, if the work in question will cost in excess of $1,000,000.00, must be approved by Administrative Agent in writing) and free and clear of all mechanic’s or materialmen’s or other Liens or Lien claims arising from such work (unless the same are satisfied or bonded in a manner satisfactory to Administrative Agent). Any amount remaining in the Loss Proceeds Account in respect of the subject condemnation event that is not so used to restore, repair, replace or rebuild the applicable Project within such three hundred sixty (360) day time period (as such period may be extended by Administrative Agent in its sole and absolute discretion) shall be (A) used to make a mandatory prepayment of the s in accordance with Section 2.03(b)(ii) hereof (after payment of the costs and expenses of Administrative Agent, including attorneys’ fees incurred in connection with collection of such amounts) or (B) with the prior written consent of Administrative Agent, retained by the applicable Borrower. Notwithstanding anything to the contrary in this Section 6.25 or in any other Loan Document, upon the occurrence and during the continuance of an Event of Default, all Extraordinary Receipts will be paid to Administrative Agent (to the extent not on deposit in the Loss Proceeds Accounts), and all Extraordinary Receipts (including all amounts on deposit in the Loss Proceeds Account) may be withheld or applied by Administrative Agent in any manner Administrative Agent so elects.
6.26 Ground Leases.
6.27 Post-Closing Covenants. Each applicable Borrower shall deliver to Administrative Agent the items set forth on Schedule 6.27 attached hereto, within the time periods set forth therein (or such longer time as Administrative Agent may allow in its reasonable discretion).
6.28 [Reserved].
6.29 Reaffirmation of Existing Collateral and Collateral Documents. Each Loan Party (a) agrees that the execution, delivery and performance of this Agreement by each Loan Party shall not limit, restrict or otherwise adversely affect in any way any of the Collateral Documents executed by such Loan Party or any Guaranty or Lien (as applicable) provided or granted pursuant thereto, (b) agrees that, both before and after giving effect to this Agreement, each of the Collateral Documents executed by such Loan Party, and each Guaranty and/or Lien (as applicable) provided or granted pursuant to such Collateral Document or such Guaranty, has been and continues to be provided or granted to and in favor of Administrative Agent for the benefit of Secured Parties and is and continues to be in full force and effect and guarantees and/or secures (as applicable) the payment and performance of all of the Obligations and (c) reaffirms, acknowledges, ratifies and confirms all of its indebtedness, liabilities and obligations under each of such Collateral Documents or Guaranty executed by such Loan Party.
Article VIINEGATIVE COVENANTS
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than Liens granted to Administrative Agent for the benefit of Secured Parties pursuant to any Collateral Document and Permitted Encumbrances; provided, however, nothing herein shall be deemed to prohibit such Borrower’s right to contest any tax imposition or a materialmen’s or mechanics Lien if (but only if) (a) no Default shall have occurred and be continuing, (b) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other agreement, instrument or document to which such Borrower or the applicable Project is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Laws, (c) neither the Project nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (d) such Borrower shall promptly, upon final determination thereof, pay the
amount of any such tax or materials or mechanics lien, together with all costs, interest and penalties which may be payable in connection therewith, (e) unless already paid, such proceeding shall suspend the collection of such tax and/or materials or mechanics Lien (as applicable); and (f) such Borrower shall deposit with Administrative Agent, for the benefit of Lenders, cash or other security as may be required in the proceedings, or as may otherwise be requested by Administrative Agent, to ensure the payment of any such tax and/or materials or mechanics Lien, together with all interest and penalties thereon. Administrative Agent and/or Lenders may pay over any such cash or other security held by it or them to the claimant entitled thereto at any time when, in its or their judgment, the entitlement of such claimant is established.
7.02 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
7.03 Investments. Make or hold any Investments, other than the Investments evidenced by the Sole Member Promissory Note pledged to Administrative Agent under the Security Agreement executed by Borrowers.
7.04 Fundamental Changes. Merge, dissolve, liquidate, or consolidate with or into another Person or change its name or principal place of business or make or enter into a division or plan of division under applicable Laws.
7.05 Dispositions. Make any Disposition or consummate any New Project Refinancing, or enter into any agreement to make any Disposition, other than (a) an Immaterial Transfer; (b) an Existing Lease; (c) a non-Material Lease; (d) with the prior written consent of Administrative Agent in its reasonable discretion, a Material Lease; (e) Dispositions of inventory and consumables in the ordinary course of business, and (f) the Disposition or New Project Refinancing of Proposed Released Collateral in accordance with Section 2.17.
7.06 Formation of Subsidiaries and Employees. Create or own any Subsidiary, or have any employees; provided, however, that CBL Southgate Mall, LLC shall be permitted to become an associate member of that certain non-profit corporation known as Southgate Mall Merchants Association in accordance with the Southgate Mall Merchants Association Documents as in effect on the Restatement Closing Date (which Southgate Mall Merchants Association Documents shall not be amended without the prior written consent of Administrative Agent) so long as its responsibilities thereunder remain unchanged from those set forth in the Southgate Mall Merchants Association Documents as in effect on the Restatement Closing Date and it shall not assume or incur any obligations or liabilities as a result thereof in an aggregate amount or value exceeding $50,000 during any twelve-month period.
7.07 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of any Borrower, including without limitation the payment of (or agreement to pay) management fees or expenses whether or not in the ordinary course of business, other than (a) for fair market value and on fair and reasonable terms substantially as favorable to the applicable Borrower as would be obtainable by the applicable Borrower at the time in a comparable arm’s length transaction with a Person other than an Affiliate of the applicable Borrower (and Administrative Agent and Lenders acknowledge that the Property Management Agreements entered into with CBL & Associates Management, Inc. (copies of which have been delivered to Administrative Agent) meet the required standard for such fair and reasonable terms), (B) Investments permitted pursuant to Section 7.03 hereof and (c) Restricted Payments permitted pursuant to Section 7.17 hereof. In addition to and without limiting the generality of the foregoing, neither Borrower nor Sole Member will engage in any transaction with Layton Hills or MNVL.
7.08 Use of Proceeds.
7.09 [Reserved].
7.10 Amendments of Organization Documents. Amend any of its Organization Documents or change its name, jurisdiction of organization, tax identification number or place of business.
7.11 Accounting Changes. Make any change in (a) accounting policies or reporting practices, except as required by GAAP, or (b) its fiscal year.
7.12 ERISA.
7.13 Assignment. Assign, or cause or permit any other Loan Party to assign, its obligations under any of the Loan Documents to any other Person.
7.14 Deposit Accounts and Securities Accounts. Maintain, establish or use any deposit account or securities account (including any Account) other than the deposit accounts (including the Blocked Accounts) which are identified on Schedule 7.14 or otherwise approved by Administrative Agent in writing and which are included as part of the Collateral and subject to an Account Control Agreement, or hold any cash (or cause or permit any revenue or other proceeds from any Project to be held) other than in an Account of a Borrower that is subject to an Account Control Agreement.
7.15 Hazardous Materials. Handle, transport, or release Hazardous Materials into the environment other than in accordance with the Loan Documents and applicable Environmental Laws and Environmental Permits.
7.16 Sale-Leaseback. Enter into any agreement which creates an obligation of it or any of its Affiliates to purchase or acquire property or any lease of or other interest in property arising out of or in connection with the sale of the same property by any Borrower or any of its Affiliates.
7.17 Restricted Payments. Make any Restricted Payment, other than (a) the disbursement of the proceeds of the Sole Member Promissory Note relating to the proceeds of the Existing Loan from Sole Member to Parent as required in Section 2.02 herein, (b) Restricted Payments made by Borrowers to Sole Member, and (c) so long as no Default then exists or would result therefrom, Borrowers and/or Sole Member may make Restricted Payments during a Fiscal Quarter in the form of one or more dividends or distributions to Parent that, in the aggregate amount for all Borrowers and Sole Member, does not exceed the Excess Cash Flow for the Fiscal Quarter then most recently ended, which dividends and distributions to Parent may be used only for one or more of the following purposes of Parent and shall not exceed in the aggregate the amount specified below:
7.18 Sole Member; Parent. Sole Member agrees that it shall not conduct any operating business, or own any assets other than 100% of the Equity Interests in Borrowers, and Sole Member shall cause all such Equity Interests to be at all times free and clear of all Liens (other than Liens created by the Loan Documents). Parent shall cause 100% of the Equity Interests in Sole Member to be at all times free and clear of all Liens other than Liens created by the Loan Documents.
7.19 Partition. Bring an action for partition with respect to a Borrower’s ownership interest in its Project or compel any sale thereof, notwithstanding anything to the contrary contained herein.
7.20 Leases. Without Administrative Agent’s prior written consent (such consent not to be unreasonably withheld), enter into any lease for space in any Project if such lease is a Material Lease. All Leases for space at each Project (including Material Leases) shall be (a) on the applicable Borrower’s standard form of lease, a copy of which is attached hereto as Exhibit I, with such non-material changes as shall be commercially reasonable effected as a result of negotiations with the applicable Tenant and (b) subject and subordinate to the Loan Documents and the Liens granted pursuant to the Collateral Documents (either pursuant to the terms of the Lease or a subordination, non-disturbance and attornment agreement entered into by the Tenant, the applicable Borrower and Administrative Agent, in each case in form and substance satisfactory to Administrative Agent). No Borrower will amend any Material Lease without the prior written consent of Administrative Agent, not to be unreasonably withheld, conditioned or delayed. No Borrower will amend any Lease in effect as of the Restatement Closing Date to extend the term to more than five (5) years from the date of such amendment or grant to the Tenant thereunder a renewal option or to expand the premises leased to such Tenant or any Affiliate of such Tenant (i) with respect to Existing Projects, to more than 7,500 square feet and (ii) with respect to New Projects, to more than 10,000 square feet, without the prior written consent of Administrative Agent, not to be unreasonably withheld, conditioned or delayed. No Borrower shall collect any Rent more than one (1) month in advance or, without limitation of the foregoing, amend or modify any Lease in any material respect or hold any security or other deposit under a Lease, except in accordance with applicable Law and the applicable Lease. With respect to any written request (including an e-mail request) by any Borrower to Administrative Agent for consent to a Material Lease (or any amendment or modification thereto), Administrative Agent shall either approve or deny such request within ten (10) Business Days following receipt of such request, and if Administrative Agent fails to respond to Borrower within such ten (10) day period, the request shall be deemed to have been denied.
7.21 Intercompany Note. Without the prior written consent of Administrative Agent, make any demand for payment on the Sole Member Promissory Note relating to the proceeds of the Existing Loan while any of the Obligations are outstanding.
Article VIIIEVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an “Event of Default”:
8.02 Remedies upon Event of Default. If any Event of Default occurs and is continuing, Administrative Agent shall, at the request of, or may, with the consent of, Required Lenders, take any or all of the following actions:
8.03 Appropriate Proceedings; Remedies Cumulative. Administrative Agent, on behalf of itself and Secured Parties, may protect and enforce its and their respective rights under the Loan Documents by any appropriate proceedings, including proceedings for specific performance of any covenant or agreement contained in any Loan Document. All rights, remedies and powers conferred upon Administrative Agent or any of the other Secured Parties under the Loan Documents or by applicable Laws shall be cumulative and not exclusive of any other rights, remedies or powers available to such Person or any other Secured Party under the Loan Documents or pursuant to applicable Law. All notice and cure periods provided in this Agreement or in any other Loan Document shall run concurrently with any notice or cure periods provided by applicable Law.
8.04 Application of Funds. Subject to applicable Laws, after the exercise of any rights or remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable pursuant to Section 8.02), any amounts received on account of the Obligations shall be applied by Administrative Agent in the following order:
Article IXADMINISTRATIVE AGENT
9.01 Appointment and Authority.
9.02 Rights as a Lender. The Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Borrower, other Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to Lenders.
9.03 Exculpatory Provisions. Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, Administrative Agent:
9.04 Reliance by Administrative Agent. Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, Administrative Agent may presume that such condition is satisfactory to such Lender unless Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Administrative Agent may consult with legal counsel (who may be counsel for Borrowers or the other Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties. Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of
Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facility provided for herein as well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent. Administrative Agent may at any time give notice of its resignation to Lenders and Borrowers. Upon receipt of any such notice of resignation, Required Lenders shall have the right, in consultation with Borrowers (provided no Default then exists), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if Administrative Agent shall notify Borrowers and Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that, in the case of any collateral security held by Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender directly, until such time as Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrowers and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent. Until Borrowers receive written notice that Administrative Agent has been replaced, Borrowers may (without inquiry) rely on all actions taken or consents given by CLMG Corp. as “Administrative Agent” hereunder.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and to make the Loans hereunder. Each Lender also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement, instrument or other document furnished hereunder or thereunder.
9.08 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
9.09 Collateral Matters. (a) Each of Lenders irrevocably authorize Administrative Agent, at its option and in its discretion, to release any Lien on any property granted to or held by Administrative Agent under any Loan Document (i) upon termination of the Commitments and Payment in Full of all Obligations, (ii) that is Disposed of or to be Disposed as part of or in connection with any Disposition permitted hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in writing in accordance with Section 10.01.
Article XMISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrowers or any other Loan Party therefrom, shall be effective unless in writing signed by Required Lenders and Borrowers or the applicable Loan Party, as the case may be, and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
10.02 Notices; Effectiveness; Electronic Communications.
10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
10.04 Expenses; Indemnity; Damage Waiver.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrowers is made to Administrative Agent or any Lender, or Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, whether in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to Administrative Agent, upon demand, such Lender’s Applicable Percentage (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of Lenders under clause
(b) of the preceding sentence shall survive the Payment in Full of the Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
10.07 Treatment of Certain Information; Confidentiality. Each of Administrative Agent and Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any rights or remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights or remedies hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Borrower and its obligations, (g) with the consent of any Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to Administrative Agent, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than Borrowers and not then known to be under any duty of confidentiality to a Loan Party or its Affiliate.
10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of any Borrower or any other Loan Party against any and all of the obligations of any Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations of any Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender and its respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its respective Affiliates may have. Each Lender agrees to notify Borrowers’ Representative and Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the outstanding principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrowers. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder, in each case, provided, that Loan Parties are not thereby required to make any greater payments hereunder than would be required prior to such action.
10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.02, this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other agreement, instrument or document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Administrative Agent and each Lender, regardless of any investigation made by Administrative Agent or any Lender or on their behalf and notwithstanding that Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of the advance of any Loan, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
10.13 Borrowers’ Representative. Each of Borrowers hereby appoints Borrowers’ Representative to act as its exclusive agent for all purposes under the Loan Documents (including without limitation, all matters related to any borrowing of or any repayment of any Loan). Each of Borrowers acknowledges and agrees that (a) Borrowers’ Representative may execute such agreements, instruments and other documents on behalf of any Borrower as Borrowers’ Representative deems appropriate in its sole discretion and each Borrower shall be bound by and obligated under all terms of any such agreement,
instrument or other document executed by Borrowers’ Representative on such Borrower’s behalf, (b) any notice or other communication delivered by Administrative Agent or any Lender hereunder or under any other Loan Document to Borrowers’ Representative shall be deemed to have been delivered to each of Borrowers, and (c) each of Administrative Agent and Lenders shall be permitted to rely on any agreement, instrument or other document executed by Borrowers’ Representative on behalf of Borrowers (or any of them).
10.14 Governing Law; Jurisdiction; Etc.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of Borrowers and the other Loan Parties acknowledges and agrees, and acknowledges their Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this Agreement provided by Administrative Agent are arm’s-length commercial transactions between Borrowers and the other Loan Parties and their respective Affiliates, on the one hand, and Administrative Agent and Lenders, on the other hand, (ii) each of Borrowers and the other Loan Parties have consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) each of Borrowers and the other Loan Parties are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) Administrative Agent is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Borrower or other Loan Party or any of their respective Affiliates, or for any other Person,
and (ii) Administrative Agent has no obligation to any Borrower or other Loan Party or any of their Affiliates with respect to the transactions contemplated hereby, except those obligations expressly set forth herein and in the other Loan Documents; and (c) Administrative Agent and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrowers and the other Loan Parties and their Affiliates, and Administrative Agent has no obligation to disclose any of such interests to any Borrower or other Loan Party or any their Affiliates. To the fullest extent permitted by law, each of Borrowers, the other Loan Parties and their Affiliates hereby waives and releases any claims that it may have against Administrative Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
10.17 Electronic Execution of Loan Documents. The words “execution,” “signed,” “signature,” and words of like import in any Loan Document or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act, provided that Administrative Agent may request, and promptly upon any such request each applicable Loan Party shall be obligated to deliver to Administrative Agent, manually executed “wet ink” signatures to any Loan Document.
10.18 U.S. PATRIOT Act. Each Lender that is subject to U.S. Patriot Act and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Borrowers and the other Loan Parties that, pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “U.S. Patriot Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or Administrative Agent, as applicable, to identify each Loan Party in accordance with the U.S. Patriot Act. Each of Borrowers and the other Loan Parties shall, promptly following a request by Administrative Agent or any Lender, provide all documentation and other information that Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act.
10.19 LIMITATION OF LIABILITY. EACH OF BORROWERS AND THE OTHER LOAN PARTIES HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL:
10.20 Use of Name and Information. With the consent of Borrowers (which consent shall not be unreasonably withheld, delayed or conditioned), Secured Parties shall be permitted to use information related to the syndication and arrangement of the Loans in connection with marketing, press releases or other transactional announcements or updates provided to investor or trade publications, including, but not limited to, the placement of “tombstone” advertisements in publications of its choice at its own expense.
10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENTS BETWWEN AND AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.
10.22 Broker. Except for Exclusive Placement Agent, Borrowers hereby represent and warrant that no Borrowers have dealt with any financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrowers shall indemnify, defend and hold Administrative Agent and each Lender harmless for, from and against any and all losses, damages, costs, expenses, liabilities (including, without limitation, strict liability), claims, obligations, settlement payments, penalties, fines, assessments, citations, litigation, demands, defenses, judgments, suits, proceedings or other expenses of any kind whatsoever (including attorneys’ fees and expenses and court costs) in any way relating to or arising from a claim by any Person that such Person acted on behalf of any Borrower, Administrative Agent or any Lender in connection with the transactions contemplated herein, regardless of whether caused in whole or in part by the negligence or strict liability of Administrative Agent or any Lender. The provisions of this Section shall survive the expiration and termination of this Agreement and the payment of the Loans.
10.23 Joint and Several Liability of Borrowers.
10.24 Amendment and Restatement of Existing Credit Agreement; No Novation.
10.25 Layton Hills and MNVL. It is acknowledged and agreed by the parties hereto that, as of the Restatement Closing Date and as explained in Preliminary Statement B hereto, neither Layton Hills nor MNVL owns any Project (and it is not presently contemplated that it will acquire any Project in the future) and Sole Member does not and shall not own any membership interest in Layton Hills or MNVL, and Loan Parties have requested that each of Layton Hills and MNVL not be required to be a Borrower under this Agreement. Accordingly, the parties hereto further acknowledge and agree that neither Layton Hills nor MNVL is a Borrower under this Agreement and such fact shall not be deemed to constitute a violation of this Agreement.
10.26 Borrowing Request. Administrative Agent may (or may not in its sole discretion) request that Borrowers execute and deliver to Administrative Agent, on or before the Restatement Closing Date, a borrowing request relating to the New Loan in the form of Exhibit J attached hereto and incorporated herein by reference, and, if such request is made, Borrowers shall promptly comply with such request.
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