Exhibit 10.1
Centro NP
LLC
420 Lexington Avenue, 7
th Floor
New York, New York
10170
As of February 14,
2008
Bank of America,
N.A.
Hearst Tower
214 North Tryon Street
Charlotte, North Carolina 28255
Re:
Amended and Restated Revolving Credit Agreement, dated
July 31, 2007, by and among Centro NP LLC (the “
Borrower ”), the lenders party thereto (each,
a “ Lender ”, and, collectively, the
“ Lenders ”), and Bank of America, N.A., as
agent for the Lenders (in such capacity, the “
Administrative Agent ”, and together with the Lenders,
the “ Lender Parties ”) (as previously amended,
and as the same may hereafter be further amended, restated,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”); First Amendment to Amended and
Restated Revolving Credit Argeement, dated as of December 16,
2007, by and among the Borrower, the Lender Parties, the Centro
Parties referenced in the Loan Agreement (being, for avoidance of
doubt, (i) CPT Manager Limited, as responsible entity of the
Centro Property Trust and (ii) Centro Properties
Limited) and the Subsidiary Guarantors referenced in the Loan
Agreement (the “ First Amendment ”); and Letter
Agreement, dated as of January 14, 2008, by and among the
Borrower, the Guarantors and the Lender Parties (the “
January 14 Letter Agreement ”, and collectively
with the First Amendment and the January 14 Letter Agreement,
the “ Existing Agreements ”).
Ladies and
Gentlemen:
The purpose of
this letter agreement (as amended, restated, supplemented or
otherwise modified from time to time, this “ Agreement
”, and collectively with the Loan Agreement and all related
agreements and ancillary documents, the “ Loan
Documents ”) is to set forth the terms and conditions of
the agreement by and among the Borrower regarding the Borrower,
Super and Super’s respective direct and indirect subsidiaries
(including, without limitation, the Borrower, but excluding Joint
Venture Entities (as defined in the Bridge Loan Agreement as
defined below)) (collectively, the “ Super Entities
”) and the Lender Parties to extend the Maturity Date. This
Agreement (i) is dated as of the date indicated above (the
“ Execution Date ”), but, subject to
satisfaction of the conditions to effectiveness set forth in
Section 14 below, shall be and hereby is effective retroactive
to December 16, 2007 (the “ Effective Date
”), and (ii) amends and restates the Existing Agreements
in their entirety. Any capitalized terms used herein
that
are not otherwise
defined shall have the meanings ascribed to them in the Loan
Agreement.
As used herein, the term “
Other Bank/Noteholder Group Lenders ” means,
collectively, the lenders under the following facilities
(collectively, the “ Other Bank/Noteholder Group
Facilities ”): (i) the Australian Credit
Facility (as defined in Bridge Loan Agreement), (ii) the notes
(the “ 2007 NPA ”) issued pursuant to that
certain Note Purchase and Guarantee Agreement, dated as of
August 15, 2007, among CPT, the guarantors identified on the
signature pages thereto and the holders of certain 6.34%
Guaranteed Senior Notes, Series E, due August 15, 2015
and certain 6.43% Guaranteed Senior Notes, Series F, due
August 15, 2017 (as previously amended and as the same may
hereafter be amended, restated, supplemented or otherwise modified
from time to time, the “ 2007 NPA Documents ”),
(iii) the notes (the “ 2005 NPA ”) issued
pursuant to that certain Note Purchase and Guarantee Agreement,
dated as of August 15, 2005, by and among CPT, the guarantors
identified on the signature pages thereto and the holders of
certain 4.98% Guaranteed Senior Notes, Series A, due
August 15, 2012, certain 5.21% Guaranteed Senior Notes,
Series B, due August 15, 2012, certain 5.31% Guaranteed
Senior Notes, Series C, due August 15, 2017 and certain
5.41% Guaranteed Senior Notes, Series D, due August 15,
2020 (as previously amended and as the same may hereafter be
amended, restated, supplemented or otherwise modified from time to
time, the “ 2005 NPA Documents ”), (iv) the
facility (the “ Bridge Facility ”) evidenced by
that certain Amended and Restated Loan Agreement between Super LLC,
certain lenders party thereto (the “ Bridge Lenders
”) and JPMorgan Chase Bank, N.A., as agent for the Bridge
Lenders (in such capacity, “ JPM ”), dated as of
August 1, 2007 (as previously amended and as the same may
hereafter be further amended, restated, supplemented or otherwise
modified from time to time, the “ Bridge Loan
Agreement ”), and (v) the facilities (collectively,
the “ KeyBank Facilities ”) evidenced by
(I) that certain Unsecured Master Loan Agreement, dated
September 28, 2007, by and among Centro GA America LLC, the
lenders thereto and KeyBank National Association (“
KeyBank ”), as agent (as previously amended and as the
same may hereafter be further amended, restated, supplemented or
otherwise modified from time to time, the “ KeyBank Loan
Agreement ”), (II) that certain Secured Term Loan
Agreement, dated November 10, 2005, by and between Centro GA
America LLC and KeyBank (as previously amended and as the same may
hereafter be further amended, restated, supplemented or otherwise
modified from time to time, the “ Galileo Loan
Agreement ”), and (III) that certain Credit and
Reimbursement Agreement, dated October 23, 2003, by and among
Centro GA America LLC, Galileo Sub LLC and KeyBank (as previously
amended, and as the same may hereafter be further amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit and Reimbursement Agreement ” and,
collectively with the KeyBank Loan Agreement and the Galileo Loan
Agreement, the “ KeyBank Facilities Documents
”). As used herein, the term “ U.S. Bank Group
Lenders ” means, collectively, the Lender Parties, the
Bridge Lenders, and KeyBank, as lender and/or agent, as applicable,
under the KeyBank Facilities. As used herein, the term “
Other Bank/Noteholder Group Facility Documents ” shall
mean, collectively, (A) the documents evidencing the
Australian Credit Facility (the “ Australian Credit
Facility Documents ”), (B) the Bridge Loan
Agreement, (C) the KeyBank Facility Documents, (D) the
2005 NPA Documents, and (E) the 2007 NPA Documents. As used
herein, the term “ Centro
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GA
Entities ” shall mean Centro GA America LLC and
its direct and indirect subsidiaries. As used herein, the term
“ Australian Guarantor Entities ” shall mean any
direct or indirect wholly-owned subsidiary of each Centro Party
that has provided or will provide a guaranty in respect of the
Australian Credit Facility, the 2005 NPA, and/or the 2007 NPA, and
any of their respective direct or indirect wholly-owned
subsidiaries. The Borrower, the Guarantors, and each of the Lender
Parties hereby agree as follows:
1.
Extension of Maturity Date; Extension Fee and Default Interest;
Increased Margin; No Additional Borrowings; Professional Fees;
Retainer .
(a)
Each of the Lender Parties hereby agrees that the Maturity Date
shall be extended from December 31, 2007 to the date that is
the earlier to occur of: (i) September 30, 2008,
and (ii) the date on which a Trigger Event Notice (as defined
below) is delivered in accordance with Section 3 hereof, or
the date on which a Trigger Event under
Section 3(a) occurs (the time period elapsing between
December 31, 2007 and the dates described in clauses
(i) and (ii) being referred to herein as the “
Extension Period ”, and the date on which the
Extension Period expires or terminates being referred to herein as
the “ Termination Date ”).
(b)
(i)
The Borrower agrees to pay to the Lender Parties an extension fee
under the Loan Documents in the amount of $3,292,952 (the “
Extension Fee ”), which shall be payable to the Lender
Parties based on their respective Commitment Percentages.
(ii)
The Extension Fee shall be deemed fully earned on the Effective
Date, but the Borrower shall not be required to remit payment of
the Extension Fee to the Lender Parties until the Termination Date.
The Extension Fee shall be deemed to be an absolute obligation of
the Borrower under the Loan Agreement (collectively, such
obligation and all other present and future obligations and
liabilities, whether deemed principal, interest, additional
interest, fees, expenses or otherwise of the Borrower to the
Administrative Agent and the Lender Parties, including, without
limitation, all obligations under (A) the Loan Agreement,
(B) the Notes (including, without limitation, the Revolving
Credit Notes and the Swing Loan Note), (C) the Letters of
Credit, and (D) all other Loan Documents shall be referred to
herein as the “ Obligations ”), and shall be due
and payable on the Termination Date without further notice or
demand made by the Lender Parties to the Borrower and/or the
Guarantors. From and after the Termination Date, the Borrower shall
pay default interest on any portion of the Extension Fee that
remains unpaid and any other outstanding Obligations, in each case
pursuant to the applicable terms of the Loan Agreement.
(iii)
For the avoidance of doubt, notwithstanding anything to the
contrary in this Agreement or any other Loan Document, the
Extension Fee shall be payable solely upon the terms and conditions
set forth above, and no separate fee of any nature or purpose
similar to the Extension Fee is intended by the Lender Parties to
be payable by the Borrower in connection with this Agreement or any
other Loan Document. Notwithstanding the immediately preceding
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sentence, if at any time during the Extension
Period any Other Bank/Noteholder Group Lender
(A) requires payment of any Existing Bank/Noteholder
Group Extension Fee (as defined below), the Extension Fee shall
become immediately due and payable to the Lender Parties at the
same time any such Existing Bank/Noteholder Group Extension Fee is
so paid to such Other Bank/Noteholder Group Lender, or
(B) assesses or requires payment of any Additional
Bank/Noteholder Group Extension Fee (as defined below), the amount
of the Extension Fee shall be increased by the amount equal to the
product of (x) the percentage by which the total extension
fees payable to the applicable Other Bank/Noteholder Group Lender
has increased (measured as a percentage of outstanding obligations
under the applicable Other Bank/Noteholder Group Facilities) as a
result of any Additional Bank/Noteholder Group Extension Fee,
multiplied by (y) the then outstanding amount of the
Obligations (any such increase in the Extension Fee, an “
Additional Extension Fee ”) and shall become due and
payable to the Lender Parties at such time as the Additional
Bank/Noteholder Group Extension Fee is paid to such Other
Bank/Noteholder Group Lender. In no event shall any Existing
Bank/Noteholder Group Lender Extension Fee be paid, or any
Additional Bank/Noteholder Group Extension Fee be paid, to the
applicable Other Bank/Noteholder Group Lender on any date prior to
the Termination Date without the concurrent payment of the
Extension Fee and/or the Additional Extension Fee, as applicable to
the Lender Parties. As used herein, the term “ Existing
Bank/Noteholder Group Extension Fee ” shall mean any
extension fee under or in connection with any of the Other
Bank/Noteholder Group Facilities that has been provided for in
writing and disclosed to the Lender Parties on the Execution Date
(which disclosure shall be deemed satisfied if same is set forth in
the Other Bank/Noteholder Group Extension Agreements (as defined
below)). As used herein, “ Additional Bank/Noteholder
Group Extension Fee ” shall mean any extension fee under
or in connection with any of the Other Bank/Noteholder Group
Facilities other than any such extension fee that is paid, assessed
or otherwise provided for in writing and disclosed to the Lender
Parties on the Execution Date (and, for the avoidance of doubt, any
fee payable to any Other Bank/Noteholder Group Lender in connection
with any new credit facility provided by such Other Bank/Noteholder
Group Lender on or after the Execution Date shall not constitute an
Additional Bank/Noteholder Group Extension Fee).
(c)
From and after the Effective Date, the Applicable Margin, whether
applied to a LIBOR Loan, a Prime Rate Loan, or a Letter of Credit
Commission Fee, shall be increased to 1.75% per annum (the “
Increased Spread ”); provided , however
, that from the Effective Date through the Execution Date, the
Borrower shall only be obligated to pay the Applicable Margin in
effect prior to giving effect to the First Amendment in cash, and
the differential between the Applicable Margin and the Increased
Spread (the “ Deferred Amount ”) shall accrue on
a daily basis (through and including the Execution Date) and be
capitalized on September 30, 2008 (or, if a Trigger Event
occurs, on the Termination Date), with no further interest or fee
accrual on the Deferred Amount from and after the Execution Date
until the date the Deferred Amount is so capitalized) and become
due and payable on the Termination Date; and provided ,
further , that on and after the Execution Date, the Borrower
shall be obligated to pay all interest accrued under the
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Loan Agreement and
Letter of Credit Commission Fees (calculated using the Increased
Spread, but excluding the interest due and payable on the
Termination Date as referenced above) in cash, which interest shall
accrue (but not be compounded) on a daily basis and be paid on the
first Business Day after the end of each month (or, if a Trigger
Event occurs, on the Termination Date), and otherwise in accordance
with the applicable terms of the Loan Agreement. Upon the
occurrence of a Trigger Event, the first proviso of the immediately
preceding sentence shall no longer apply and all interest shall
instead be due and payable pursuant to the applicable terms of the
Loan Agreement (as modified by this Section 1(c)) after an
Event of Default has occurred. Further, if and to the extent the
interest rate spread applicable to any of the Other Bank/Noteholder
Group Facilities exceeds 1.75% per annum, the Applicable Spread
shall be automatically adjusted mutatis mutandis so
as to equal such increased amount, without any further
action whatsoever by any party.
(d)
Notwithstanding anything to the contrary set forth in the Loan
Documents, from and after the Effective Date, the Borrower shall
not request and the Lenders shall have no obligation to make any
extensions of credit under the Loan Agreement, including the making
of any Loans or Letters of Credit (but excluding the one-time
extension (commencing as of the Effective Date) of any Letters of
Credit previously issued and outstanding, subject to the other
terms and conditions of the Loan Agreement).
(e)
The Borrower hereby agrees to pay all reasonable professional fees
and expenses incurred by the Lender Parties on or prior to the
Execution Date in connection with the matters relating to this
Agreement and the other Loan Documents (including, without
limitation, any such fees and expenses incurred by the Lender
Parties’ respective legal and financial advisors relating to
any transactions in respect of any Super Entity prior to the
Effective Date, whether or not any such transactions were
consummated), to the extent such fees and expenses are accrued and
unpaid as of the Execution Date. Subject to its receipt of summary
invoices (it being understood and agreed that the presentment of
such summary invoice shall not constitute a waiver of the
attorney-client privilege or any other applicable privilege), on or
prior to the Execution Date, the Borrower shall remit payment of
such invoiced fees and expenses by wire transfer to the
Administrative Agent’s counsel pursuant to wire transfer
instructions to be provided by the Administrative Agent’s
counsel to the Borrower, which transfer shall be actually received
by the Administrative Agent’s counsel on or prior to
5:00 p.m. prevailing eastern time on February 20, 2008.
From and after the Execution Date, the Borrower hereby agrees to
pay promptly all reasonable out-of-pocket fees and expenses of the
Lender Parties incurred in connection with the matters relating to
this Agreement and the other Loan Documents on an ongoing basis,
including, without limitation, in respect of any financial advisor
to the Administrative Agent and the Lender Parties’
respective legal counsel (which fees and expenses shall not be and
shall not be deemed to be subject to any maximum amount on account
of anything set forth in the Budget, the Retainer Agreement, or any
other document contemplated under this Agreement), in each case
within seven (7) Business Days of presentment of any summary
invoice (it being understood and agreed that the presentment of
such summary invoice shall not constitute a waiver of the
attorney-client privilege or any other applicable privilege) by
(A) the
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financial advisor to
the Administrative Agent or (B) any Lender Party or its
respective legal counsel; provided , however , that
the Borrower shall only be required to reimburse fees and expenses
of one financial advisor providing advice in respect of this
Agreement and the Loan Documents and all other matters relating
hereto and thereto). As used herein, “ Lender Party
Expenses ” shall mean all fees and expenses payable by
the Borrower pursuant to this Section 1(e).
(f)
Promptly following the execution of this Agreement, the Borrower
shall provide a cash deposit in the amount of $100,000 (the “
Retainer ”) to the Administrative Agent, to be held by
the Administrative Agent in a separate account (the “
Retainer Account ”) and used to pay Lender Party
Expenses. The Administrative Agent shall be entitled to apply any
or all of the Retainer to payment of any Lender Party Expenses that
have not been paid by the Borrower as and when required to be paid
pursuant to Section 1(e) above. At any time that the
balance held in the Retainer Account is less than $100,000, the
Borrower hereby agrees to provide the Administrative Agent with
additional funds sufficient to restore the balance in the Retainer
Account to $100,000 promptly following the request of the
Administrative Agent.
2.
Application of Prepayments .
(a)
Each of the Lender Parties agrees that, solely during the Extension
Period, except as expressly provided herein, such Lender Party
shall not demand payment or the turnover of amounts due under or in
respect of the Loan Agreement (other than interest that is
otherwise due in accordance with the Loan Agreement, as amended
hereby), or exercise any right to net or set-off any amounts due,
in each case under the Loan Agreement or applicable non-bankruptcy
law. Without limiting the foregoing, solely during the Extension
Period, except as provided in Section 2(b), (i) the
Borrower shall not be required to make any mandatory prepayments of
principal that would otherwise be required to be made to one or
more of the Lender Parties pursuant to the Loan Agreement, and
(ii) any proceeds generated from the sale of, or a
condemnation or casualty with respect to, any property owned by a
Super Entity that is not a Combined Pool Property (as defined
below) shall be retained and held by such Super Entity (other than
as permitted by the Budget (as defined below)), and no portion of
such proceeds shall be transferred to any other entity or person
except Borrower or one of its wholly-owned subsidiaries, until such
time as such proceeds may be applied to outstanding obligations of
the Super Entities in the manner agreed to by all of the U.S. Bank
Group Lenders; provided , notwithstanding the fact that the
definition of “Super Entities” does not include Joint
Venture Entities, the foregoing restrictions with respect to the
use of proceeds shall apply to any proceeds that are received by
any Super Entity from any Joint Venture Entity; provided ,
however , nothing in this clause (ii) shall prohibit
(w) any Super Entity from using any such proceeds to prepay
any loan secured by such encumbered property owned by a Super
Entity that is not a Combined Pool Property, where prepayments of
the loan secured by such encumbered property are contractually
required upon receipt by the applicable Super Entity of proceeds of
a sale of, or a condemnation or casualty with respect to, such
property), (x) any Super Entity from distribution to BPR
Shopping Center, LLC such proceeds to be used by it to prepay or
repay indebtedness under the Preston Ridge Facility (as defined
below), in accordance with the terms and
6
provisions of the
documentation associated therewith, (y) the relevant Super
Entity from using, in the case of a casualty event with respect to
a property that is not a Combined Pool Property where the insurance
proceeds payable to such Super Entity are less than 50% of the
appraised value of such property immediately prior to the casualty
event, any such insurance proceeds received by such Super Entity to
reconstruct, rebuild or repair any such property, or (z) the
relevant Super Entity from using any such proceeds to satisfy any
cash obligations arising from the redemption of preferred stock
units issued by Excel Realty Partners L.P. at any time on or prior
to December 31, 2008 in an amount not to exceed $85,000,000.
Provided no Trigger Event or Event of Default shall occur during
the Extension Period, each of the Lender Parties agrees not to
charge any default rate of interest during the Extension
Period.
(b)
Any proceeds generated from the sale of, or a condemnation or
casualty with respect to, any property owned by a Super Entity that
is a Combined Pool Property shall be remitted by such Super Entity
to Administrative Agent and applied by Administrative Agent to any
outstanding obligations under the Loan Agreement until such time as
all such obligations thereunder have been paid in full and all
commitments under the Loan Agreement have been terminated;
provided , however , notwithstanding the foregoing,
the relevant Super Entity may use, in the case of a casualty event
with respect to a property that is a Combined Pool Property where
the insurance proceeds payable to such Super Entity are less than
50% of the appraised value of such property immediately prior to
the casualty event, any such insurance proceeds received by such
Super Entity to reconstruct, rebuild or repair any such
property.
(c)
Except as provided in Section 2(b), unless the Lender Parties
provide their prior written consent, any prepayments in respect of
the Loan Agreement that are received by the Administrative Agent
during the Extension Period shall be held by the Administrative
Agent in an interest-bearing account and not applied to any of the
Obligations, notwithstanding anything to the contrary set forth in
the Loan Agreement; provided , however , upon any
termination or expiration of the Extension Period in accordance
with the terms hereof, the Administrative Agent shall apply all
such prepayments in accordance with applicable provisions of the
Loan Agreement (it being understood and agreed that, exclusively
for purposes of sharing such prepayments among the Lender Parties,
all such prepayments shall be deemed to have been received by the
Administrative Agent after an Event of Default has occurred).
3.
Termination of Extension Period Upon or After Trigger Event
. The Extension Period shall terminate upon delivery of written
notice by the Administrative Agent to the Borrower (which written
notice shall be delivered by the Administrative Agent to the
Borrower unless the Administrative Agent is otherwise directed by
all of the Lender Parties) (each, a “ Trigger Event
Notice ”) upon the occurrence of any of the following
events, at any time during the portion of the Extension Period from
and after the Effective Date (each, a “ Trigger Event
”) (which Trigger Event, either individually or collectively,
shall be deemed to be an Event of Default) (provided that,
notwithstanding the foregoing, the termination of the Extension
Period upon the occurrence of any Trigger Event described in
Section 3(a) below shall be automatic and
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not require the
delivery of any written notice to the Borrower or the Guarantors,
or any other action of the parties hereto):
(a)
the commencement of any voluntary or involuntary bankruptcy case or
proceeding, or the appointment of any trustee or the commencement
of any receivership, winding up or similar proceedings, by or
against any Centro Party and/or each of their respective direct and
indirect majority-owned subsidiaries that are consolidated with
such Centro Party, excluding the Super Entities and the Australian
Guarantor Entities (collectively, the “ Relevant Centro
Entities ”), and/or any of the Super Entities under title
11 of the United States Code, as amended, or otherwise, or any
other similar law of any foreign jurisdiction, including, without
limitation, any provision of the 2001 Corporations Act, as amended
by the Corporations (Amendment) Insolvency Act 2007 in effect in
Australia (as the same may be further amended);
(b)
if (i) any Other Bank/Noteholder Group Facility Document is
terminated or modified in any manner adverse to the Centro Parties
and/or the Super Entities, (ii) any Other Bank/Noteholder
Group Extension Agreement (or any other similar agreement entered
into after the Execution Date governing material indebtedness of
the Centro Parties and/or the Super Entities) (x) terminates
or lapses in accordance with its terms, (y) is amended or
modified in any manner adverse to the Centro Parties and/or the
Super Entities, or (z) is either in form or substance at the
time of execution of such agreement unsatisfactory to the Lender
Parties in any material respect, (iii) any of the Centro
Parties and/or the Super Entities terminate or modify in any manner
adverse to the Centro Parties and/or the Super Entities the
transactions contemplated by any Other Bank/Noteholder Group
Extension Agreement (or any other similar agreement entered into
after the Execution Date governing material indebtedness of the
Centro Parties and/or the Super Entities), or (iv) any event
of default (after delivery of written notice, if any, and the
expiration of any applicable grace period, but only to the extent
not waived in writing prior to the delivery of a Trigger Event
Notice) occurs under any loan agreement or other material financing
agreement or contract to which any of the Centro Parties and/or the
Super Entities is a party that is material to the financial
condition or business affairs of the Centro Parties or the Super
Entities, in each case taken as a whole;
(c)
the occurrence of any material violation of any of the terms of
this Agreement by the Borrower or any Guarantor;
(d)
the occurrence of any Event of Default or an event of default
(after delivery of written notice, if any, and the expiration of
any applicable grace period, but only to the extent not waived in
writing prior to the delivery of a Trigger Event Notice) on or
after the Effective Date under any of (i) any Other
Bank/Noteholder Group Facility Document, (ii) that certain
revolving credit facility in the amount of $80,000,000 (the “
Preston Ridge Facility ”) proposed to be provided by
the Lender Parties to BPR Shopping Center, LLC on or after the
Execution Date and secured by a first mortgage lien on the property
known as the Centre at Preston Ridge, Frisco, Texas (the “
Preston Ridge Property ”), (iii) any other
existing credit facility or other similar agreement on an aggregate
basis in excess of $10,000,000 to which any of the Centro Parties
and/or the Super Entities is a party (but only if any obligations
thereunder have been accelerated,
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whether automatically
or by written notice, as applicable, following the occurrence of an
event of default (after delivery of written notice, if any, and the
expiration of any applicable grace period) but only to the extent
not waived in writing prior to delivery of a Trigger Event Notice)
under such credit facility or other similar agreement), or
(iv) any material contract to which any of the Centro Parties
or the Super Entities is a party is terminated as a result of a
breach thereof and such termination could reasonably result in the
incurrence of liability by such entity on an aggregate basis in
excess of $10,000,000;
(e)
acts of fraud, intentional misrepresentations, criminal or willful
misconduct or gross negligence by any of the Relevant Centro
Entities or the Super Entities, respectively;
(f)
any payment of cash or other property by any Super Entity,
respectively, in respect of any indebtedness or other obligations
of any Super Entity (other than with respect to payments required
to be made pursuant to the terms of the Loan Agreement, the Bridge
Loan Agreement, the KeyBank Facilities Documents, the other credit
facilities existing as between any of the Super Entities, Centro GA
America LLC or subsidiaries of CWAR 14 LLC and KeyBank, or the
documents evidencing the Preston Ridge Facility), or making any
Restricted Payment (as defined in the First Amendment), declaring
or making any dividends, distributions or other transfers by any
Super Entity to any of the direct and indirect parent entities (and
their respective trustees and subsidiaries that are not Super
Entities) of the Super Entities (the “ Centro Entities
”), (including for avoidance of doubt the making of any
Restricted Payment by Borrower to Super) making any upstream loans,
or the payment of any management or similar fee, to any Centro
Entity, except (i) as expressly provided in this Agreement, or
(ii) with the prior consent of the Lender Parties;
provided , however , notwithstanding the fact that
the definition of “Super Entities” excludes Joint
Venture Entities (as defined in the Bridge Loan Agreement as in
effect on the date hereof), the foregoing restrictions on
Restricted Payments or dividends or distributions and the other
payments listed in this clause (f) shall apply to any proceeds
from a Joint Venture Entity that are received by any Super Entity
from any Joint Venture Entity; and provided , further
, that the Super Entities shall be permitted to make payments to
parties other than the Lender Parties in accordance with the budget
annexed as Exhibit A hereto covering the period from
the Execution Date through and including April 30, 2008 (the
“ Initial Budget ”) and/or the Subsequent Budget
(as defined below), as applicable (the Initial Budget and the
Subsequent Budget, are together referred to herein as the “
Budget ”); and provided , further ,
that, with the consent of US Bank Group Lenders holding an
aggregate of at least sixty percent (60%) of the Loan Amount (as
defined in the Bridge Loan Agreement as in effect on the date
hereof) and the outstanding principal balance of the Preston Ridge
Facility, the KeyBank Facilities and the Loan Agreement (including
the face amount of any letters of credit outstanding thereunder),
the Initial Budget may be amended at any time upon the request of
the Borrower; and provided , further , that
notwithstanding anything contained in any Loan Document to the
contrary, including, without limitation, Section 11.1 of the
Loan Agreement, any Trigger Event arising as a result of payments
made by a Super Entity which, but for the noncompliance of such
payments with the Budget, would not have violated this
Section 3(f) may be waived with the consent of US Bank
Group Lenders holding an aggregate of at least sixty percent (60%)
of the Loan Amount (as defined in
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the Bridge Loan
Agreement as in effect on the date hereof) and the outstanding
principal balance of the Preston Ridge Facility, the KeyBank
Facilities and the Loan Agreement (including the face amount of any
letters of credit outstanding thereunder) (it being understood and
agreed that, for the avoidance of doubt, other than solely as set
forth in the immediately preceding sentence, all terms and
provisions of the Loan Documents concerning the respective rights
of the Lender Parties to waive an Event of Default shall remain
unchanged in all respects and are not impacted in any manner
whatsoever by anything set forth in this Agreement);
provided , further , that notwithstanding the
foregoing, no such amendment to the Budget or waiver of
non-compliance therewith shall be binding on the Lender Parties
without their consent to the extent they relate to payments,
including Restricted Payments, made to Super that are not
contemplated by the Initial Budget (prior to any amendment
thereto).
(g)
without the prior written consent of all of the Lender Parties, if
any Relevant Centro Entity and/or any Super Entity that is not an
obligor or guarantor as of January 12, 2008 in respect of
existing indebtedness or obligations of any Centro Entity and/or
Super Entity, as applicable (each, an “ Obligor
”) outstanding as of such date (“ Centro Existing
Indebtedness ”) or is a released guarantor in respect of
any of the guarantees set forth in Part I of
Exhibit B shall become obligated as a co-obligor,
guarantor, surety or otherwise (including, without limitation, by
reason of granting any liens or security interests upon any of its
respective assets or property of any nature whatsoever) on or after
such date in respect of some or all of the Centro Existing
Indebtedness of any Centro Entity, or shall become at any time
after the Execution Date an obligor, co-obligor, guarantor, surety
or otherwise with respect to any indebtedness the proceeds of which
are used in whole or in part to repay any Centro Existing
Indebtedness; provided , however , for the avoidance
of doubt, any Obligor that executed a written agreement on any date
prior to January 12, 2008 pursuant to which it became
obligated with respect to any revolving credit facility or similar
agreement shall not be deemed to have become obligated with respect
to indebtedness or obligations of any entity described in this
Section 3(g) solely as a result of the borrowing and
re-borrowing of monies under such revolving credit facility or
similar agreement or the call on any letter of credit; and
provided , further , that no Trigger Event shall be
deemed to have occurred as a result of the execution and delivery
by (i) the applicable Centro Entities in respect of the
guarantees listed on Exhibit B hereto in connection
with the Australian Credit Facility, the 2005 NPA, and the 2007
NPA, respectively (the “ Additional Guarantees
”) and the Further Additional Guarantees (as defined in the
Other U.S. Bank Group Extension Agreement applicable to the Bridge
Loan Agreement), in each case subject to and in accordance with the
terms of Section 4(i) of this Agreement, (ii) the
relevant Super Entities and Centro GA Entities of the Payment
Guarantees (as defined below), and (iii) CPT and the
applicable Centro Entities in respect of the loan and guarantees
described in Section 5(d);
(h)
without the prior written consent of all of the Lender Parties, if
any Super Entity grants, suffers the imposition of or permits
(whether voluntary or involuntary) any liens or security interests
upon any of its respective assets or property of any nature
whatsoever in favor of any person, entity, partnership, corporation
or creditor other than the Lender Parties, except for
(i) Permitted Encumbrances (as defined in the
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