PROMISSORY NOTE
$48,900,000.00 December 31, 1997
FOR VALUE RECEIVED, the undersigned, ASHEVILLE, LLC, a North Carolina
limited liability company (hereinafter called "Maker"), promises to pay to the
order of WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, (hereinafter, together with all subsequent holders of this Note,
called "Payee") on or before the 28th day of February, 1998 (the "Maturity
Date"), as hereinafter provided, the principal sum of FORTY-EIGHT MILLION NINE
HUNDRED THOUSAND AND No/100 DOLLARS ($48,900,000.00), or so much thereof as may
actually be advanced from time to time, together with interest on the unpaid
principal balance from time to time outstanding at the rate per annum equal to
the "Base Rate" of interest as it fluctuates; provided, however, subject to the
limitations stated herein, the Maker may elect in accordance with the
procedures set forth below to have interest accrue and be paid on all or a
portion of the outstanding principal balance hereof at a rate per annum equal
to the "Fixed Increment Rate" (as defined below).
Defined Terms:
"Base Rate:" An interest rate per annum, fluctuating daily, equal to
the rate announced by Payee from time to time at its principal office in San
Francisco, California as its prime rate in effect on such day. Neither the
Base Rate nor the prime rate of Payee is necessarily intended to be the lowest.
rate of interest charged by Payee in connection with extensions of credit.
Each change in the prime rate shall result in a corresponding change in the
Base Rate and such change shall be effective on the effective date of such
change in the prime rate.
"Fixed Increment Rate:" The "Fixed LIBO Rate" (as defined below), plus
nine-tenths of one percent (.90%) (i.e. 90 basis points) per annum.
"Fixed LIBO Rate:" With respect to any "Fixed Period" (as defined
below), the rate per annum which is equal to the quotient of the average rate
per annum (determined solely by Payee and rounded upwards, if necessary, to
the next higher 1/16 of 1%) at which deposits in United States Dollars are
offered to Payee by brokers in the London interbank market as of 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Fixed
Period, in an amount equal to the "Fixed Increment" (as defined below) so
requested and for a period equal to -such Fixed Period. Each determination
of the Fixed LIBO Rate by Payee shall, in absence of manifest error, be
conclusive and binding.
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"Reserve Requirement The daily average during the Fixed Period of the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves and taking into account any transitional
adjustments or other schedule changes in reserve requirements during the Fixed
Period) which is imposed under "Regulation D" (as defined below) against
"Eurocurrency liabilities" as defined in Regulation D. Each determination by
Payee of the Reserve Requirement shall, in the absence of manifest error, be
conclusive and binding.
"Regulation D:" Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect arid shall include any successor
or other regulation relating to reserve requirements applicable to member
banks of the Federal Reserve System.
"Loan" The loan advanced under this Note and evidenced hereby and by the
other Security
Documents.
"Event of Default:" Any default hereunder or tender the other Security
Documents.
"Guaranty:" That certain Guaranty of or about even date herewith from
CBL & Associates
Limited Partnership in favor of payee.
"Security Documents As that term is defined in the Guaranty.
"Fixed Increment:" The portion of the outstanding principal balance
hereof specified by Maker to Payee effective as of the applicable
"Fixed Period Commencement Date" (as defined below); provided,
however, in no event shall any such Fixed Increment be less than One
Million and No/100 Dollars ($1,000,000.00).
"Fixed Period A period as designated by Maker which is thirty (30) or
sixty (60) days, commencing on the Fixed Period Commencement Date.
Notwithstanding the foregoing, in no event shall any Fixed Period extend
beyond the Maturity Date.
"Fixed Period Commencement Date: The proposed commencement of the
applicable Fixed
Period.
,,Business Day:" (a) With respect to any advance, payment or rate
determination for a Fixed Increment, a day, other than a Saturday or Sunday,
on which Payee is open for business, in San Francisco and on which dealings in
United States Dollars are carried on in the London interbank market; and (b)
for all other purposes, any day of the week (but not a Saturday, Sunday or
holiday) on which the offices of Payee are open to the public for carrying on
substantially all of Payee's business functions. Unless specifically
referenced in this Note as a Business Day, all references to "days" shall be
to calendar days.
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Selection of Fixed Increment Rate
If the Maker elects to have the Fixed Increment Rate apply, it shall
advise the Payee in writing of its election and the Fixed Period and Fixed
Increment for which the Maker desires said rate to apply not later than 1 1:00
a.m., Pacific Standard Time or Pacific Daylight Time (as applicable), three (3)
Business Days prior to the Fixed Period Commencement Date. Any such election
may be made only (I) once during any thirty (30) day period and (ii) while no
Event of Default is in existence and no event has occurred which with notice
and/or lapse of time would constitute an Event of Default. After Maker has
designated a Fixed Increment to which the Fixed Increment Rate shall apply,
such rate shall apply to the Fixed Increment for the duration of the Fixed
Period. At any one time during the term hereof, no more than three (3) Fixed
Increments may be outstanding. If the Maker elects the Fixed Increment Rate,
but the applicable Fixed Period will commence on a date which is not a Business
Day, such Fixed Period shall be deemed to commence on the next Business Day
after it would otherwise commence, and any interest which accrues hereunder in
the interim shall accrue at the Base Rate.
Notwithstanding anything contained herein to the contrary, if the Maker
elects the Fixed Increment Rate to apply but the Payee is unable for any reason
to obtain funds from Payee in the amount of the Fixed Increment elected for the
Fixed Period elected, interest on such Fixed Increment shall accrue at the Base
Rate unless and until a new election of the Fixed Increment Rate is made by
Maker and the Payee is then able to obtain such funds.
In the absence of an effective election by Maker of the Fixed Increment
Rate in accordance with the above procedures prior to the expiration of the
then current Fixed Period with respect to any Fixed Increment, Payee shall be
deemed to have elected that such Fixed Increment thereafter bear interest at
the Fixed Increment Rate for a fixed period of thirty (30) days.
Special Provisions Applicable to LIBO Rate Provisions. Notwithstanding any
other provisions hereof-
A. Change in Law: If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by Payee with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful o*@ impossible for Payee to make, maintain or
fund advances at the Fixed Increment Rate, Payee shall forthwith give notice
thereof to Maker. Before giving any noticed Payee shall designate a different
LIBO lending office if such designation will avoid the need for giving such
notice and will not be otherwise disadvantageous to Payee (as determined in
good faith by Payee). Upon receipt of such notice, Maker shall either (I)
repay in full the then outstanding principal amount of any Fixed Increment,
together with accrued interest thereon, or (ii) convert such Fixed Increments
to the Base Rate, either (a) on the last day of the then current Fixed Period
applicable to such fixed increment if Payee may lawfully continue to maintain
and fund advances at the fixed increment rate to such day or (b) immediately
if payee may not lawfully continue to fund and maintain advances at the
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Fixed Increment Rate to such day.
B. Increased Costs. If, after the date hereof, any governmental
authority, central bank or other comparable authority, shall at any time
impose, modify or deem applicable any reserve (including, without limitation,
the Reserve Requirement and any other reserve imposed by the Board of Governors
of the Federal Reserve System), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, Payee,
or shall impose on Payee (or its eurodollar lending office) or the interbank
eurodollar market any other condition affecting Fixed Increments, this Note,
or Payee's obligation to pen-nit Maker to elect to have the Fixed Increment
Rate apply to a Fixed Increment; and the result of any of the foregoing is to
increase the cost to Payee of making or maintaining advances at the Fixed
Increment Rate, or to reduce the amount of any sum received or receivable by
Payee hereunder, by an amount deemed by Payee to be material, then, within five
(5) days after demand by Payee, Maker shall pay to Payee, such additional
amount or amounts as will compensate Payee for such increased cost or
reduction. Payee will use good faith and reasonable efforts to designate a
different LIBO lending office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole opinion of
Payee, be disadvantageous to Payee. A certificate of Payee claiming
compensation under this Paragraph B and setting forth in reasonable detail the
calculation of the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. If Payee demands
compensation under this Paragraph B, then Maker may at any time, upon at least
five (5) Business Days' prior notice to Payee either (I) repay in full all then
outstanding Fixed Increments, together with accrued interest thereon on the
date of prepayment or (ii) convert such Fixed Increments to the Base Rate;
provided, however, that Maker shall be liable for any."Consequential Loss" (as
defined below) arising pursuant to such actions, unless the requirement or
condition giving rise to the incurred costs is not generally applicable to
lenders similar to Payee, but rather is applicable solely to Payee.
C. Payments Not At End of Interest Period. If Maker makes any
payment of principal with respect to any Fixed Increment on any day other than
the last day of a Fixed Period applicable to such Fixed Increment (other than
any such payment required by Paragraph A(ii)(b) above), then Maker shall
reimburse Payee on demand the Consequential Loss incurred by Payee as a result
of the timing of such payment. A certificate of Payee setting forth in
reasonable detail the basis for the determination of the amount of Consequential
Loss shall be delivered to Maker by Payee and shall, in the absence of manifest
error, be conclusive and binding. Any conversion of a Fixed Increment to the
Base Rate on any day other than the last day of the Fixed Period for such Fixed
Increment shall be deemed a payment for purposes of this Paragraph C.
D. Effect on Fixed Increments. If notice has been given pursuant to
Paragraph A above requiring a Fixed Increment to be repaid or converted, then
unless and until Payee notifies Maker that the circumstances giving rise to
such repayment or conversion no longer apply, Maker shall not have the right
to elect to have the Fixed Increment Rate apply. If Payee notifies Maker that
the circumstances giving rise to such repayment or conversion no longer apply,
Maker may thereafter elect to have the Fixed Increment Rate apply in accordance
with the terms of this Note.
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E. Notice. Payee shall notify Maker of any event occurring after the
date hereof entitling Payee to compensation under Paragraph B above within 45
days after Payee obtains actual knowledge thereof, provided that if Payee fails
to give such notice to Maker within 45 days after it obtains actual knowledge
of such an event, Payee shall, with respect to compensation payable pursuant
to such Paragraph B in respect of any costs resulting from such event, only be
entitled to payment under Paragraph B for costs incurred from and after the
date 45 days prior to the date that Payee gives such notice.
F. Consequential Loss. The term "Consequential Loss" shall mean any
loss, cost or expense incurred by Payee as a result of the payment or
conversion of any Fixed Increment on a day other than the last day of the Fixed
Period applicable thereto or in the redepositing, redeploying or reinvesting
the principal amount so paid or affected by the timing of such conversion
including the sum of (I) the interest which, but for the payment or conversion
Payee would have earned in respect of such principal amount, reduced, if Payee
is able to redeposits redeploy, or reinvest such principal amount by the
interest earned by Payee as a result of so redepositing, redeploying or
reinvesting such principal amount, plus (ii) any expense or penalty incurred
by payee on redepositing, redeploying or reinvesting such principal amount.
General Provisions:
Interest based on a 360-day year will be accrued on the number of days
funds are actually outstanding. Interest shall be calculated on a daily
basis and shall be payable monthly on the first day of each and every month
following the date hereof until the Maturity Date, at which time all accrued
and unpaid interest and the unpaid principal balance hereof shall be due and
payable in full.
All payments on this Note shall, at the option of Payee, be applied
first to the payment of accrued but unpaid interest, and any remainder shall
be applied to reduction of the principal balance hereof. All payments
hereunder shall be made to Payee at c/o Wells Fargo Bank, National
Association, 212,0 East Park Place, Suite 100, El Segundo, California 90245,
or at such other address as Payee may from time to time designate in writing
to Maker.
Except as otherwise specifically provided in the Security Documents,
Maker and any endorsers or guarantors hereof jointly and severally waive
presentment and demand for payment, notice of intent to accelerate maturity,
notice of acceleration of maturity, protest or notice of protest and
nonpayment, bringing of suit and diligence in taking any action to collect
any sums owing hereunder or in proceeding against any of the rights and
properties securing payment
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hereof. Maker and any endorsers or guarantors hereof agree that the time
for any payments hereunder may be extended from time to time without notice
and consent to the acceptance of further security or the release of any
existing security for this Note, all without in any manner affecting their
liability under or with respect to this Note. No extension of time for the
payment of this Note or any installment hereof shall affect the liability of
Maker under. this Note even though Maker is not a party to such agreement.
If a default is made in the payment, in whole or in part, of any sum
provided for herein when due and such default is not cured within fifteen
(15) days after written notice thereof from Payee to Maker, or if an Event
of Default shall occur under the any of the Security Documents, then Payee
may, at its option, without further notice or demand, except as otherwise
specifically provided in the Security Documents, declare the unpaid
principal balance and accrued interest on this Note at once due and payable,
foreclose all deeds of trust, mortgages and liens securing payment hereof,
pursue any and all other rights, remedies, and recourses available to Payee,
or pursue any combination of the foregoing, all remedies hereunder and under
the Security Documents being cumulative.
Failure to exercise any of the foregoing options shall not constitute a
waiver of the right to exercise the same or any other option at any
subsequent time in respect to any other event. The acceptance by Payee of
any payment hereunder that is less than payment in full of all amounts due
and payable at the time of such payment shall not constitute a waiver of the
right to exercise any of the foregoing options at that time or at any
subsequent time or nullify any prior exercise of any such option without the
express written consent of Payee.
If any payment required under this Note is not paid within fifteen
(15) days after written notice has been given to Maker that the same has
become due and payable, Payee may require a late charge for late payment to
compensate for the Payee's loss of use of funds and for the expenses of
handling the delinquent payment, in an amount not to exceed four percent
(4%) of such delinquent payment. Said late charge shall be paid in any
event not later than the due date of the next subsequent installment of
principal and/or interest. In the event the maturity of the indebtedness
hereunder is accelerated by Payee, this paragraph shall apply only to
payments overdue prior to the time of such acceleration. This paragraph
shall not be deemed to be a waiver of Payee's right to accelerate payment of
this Note under the terms hereof.
Maker shall have the right prior to. the Maturity Date, upon ten (10)
days' prior written notice, to prepay all or any portion (except any portion
constituting a Fixed Increment during its applicable Fixed Period) of the
principal balance owing hereunder from time to time without the payment of
any premium or penalty; provided, however, that (a) if such prepayment is
only a partial payment of the then outstanding principal balance hereof,
such prepayment shall be
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accompanied by the payment of all accrued but unpaid interest on the portion
of the outstanding principal balance of the Note being so paid through the
date the prepayment is made, and (b) for same day credit all monies shall be
received at Payee's office at c/o Wells Fargo Bank, National Association,
2120 East Park Place, Suite 100, El Segundo, California 90245 on or before 1
1:00 a.m., Pacific Standard Time or Pacific Daylight Time (as applicable).
All monies received after this time shall be deemed received on the
following Business Day and shall continue to accrue interest at the Base
Rate to the date funds are deemed received.
Maker shall have the right to prepay any Fixed Increment during its
applicable Fixed Period only upon payment to Payee at the time of such
prepayment, of an amount (the "Fixed Increment Liquidation Amount") equal to
the excess of (I) the interest that would have been payable by Maker for
such Fixed Increment for the remainder of the applicable Fixed Period at the
applicable Fixed Increment Rate had such prepayment not been made by Maker,
over (ii) the interest to be earned on sums equal to the amount of such
Fixed Increment for the remainder of the applicable Fixed Period as invested
by Payee in an interest bearing obligation of Payee's selection, in its sole
and absolute discretion.
In addition, in any such event, the provisions of the immediately,
preceding paragraph hereto (relating to the obligation of Maker to pay to
Payee certain amounts in the event of the prepayment of a Fixed Increment
prior to the last day of the applicable Fixed Period) shall apply with
respect to any Fixed Increment prepaid by Maker prior to the last day of the
applicable Fixed Period as a result of the acceleration by Payee of the
outstanding principal balance hereof.
Upon the occurrence of an Event of Default, at the option of the
Payee, all amounts payable hereunder or under the Security Documents shall
bear interest for the period beginning with the date of occurrence -of such
Event Of Default at a rate of interest per annum (the "Default Rate"),
payable on the first day of each and every month, equal to three percent
(3%) above the Base Rate, as it fluctuates, or three percent (3%) above the
Fixed Increment Rate, whichever is applicable.
Notwithstanding any other provision of this Note to the contrary, from
and after the Maturity Date of this Note, or such earlier date as the unpaid
principal owing on this Note becomes due and payable upon acceleration or
otherwise pursuant to the terms hereof, the whole of the unpaid principal
and, to the fullest extent permitted by law, interest owing on this Note,
shall thereafter bear interest until paid in full at the Default Rate.
All amounts payable hereunder are payable in lawful money of the
United States of America. Maker agrees to pay all costs of collection
hereof when incurred, including reasonable attorneys' fees, whether or not
any legal action shall be instituted to enforce this Note.
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This Note is given for business purposes and none of the proceeds of
the Loan or this Note will be used for personal, family or household
purposes.
If this Note is executed by more than one party, each such party shall
be jointly and severally liable for the obligations of Maker under this Note.
If the Maker is a partnership, each general partner of Maker shall be jointly
and severally liable hereunder, and each such general partner hereby waives any
requirement of law that, upon an occurrence of an Event of Default hereunder
or under the Security Documents, Payee exhaust any assets of Maker before
proceeding against such general partner's assets.
MAKER AGREES THAT TIME IS OF THE ESSENCE IN THE PERFORMANCE OF ALL
OBLIGATIONS HEREUNDER.
This Note shall be governed by and construed according to the laws of
the State of Georgia.
It is expressly stipulated and agreed to be the intent of Maker and
Payee at all times to comply with the applicable law now or hereafter governing
the interest payable on this Note or the Loan (or applicable United States
federal law to the extent that it permits the Payee to contract for, charge,
take, reserve, or receive a greater amount of interest than under Georgia law).
If the applicable law is ever revised, repealed, or judicially interpreted so
as to render usurious any amount called for under this Note, or under any of the
Security Documents, or contracted for, charged, taken, reserved or received-
with respect to the Loan, or if Payee's exercise of the option herein contained
to accelerate the maturity of this Note, or if any prepayment by Maker results
in Maker's having paid any interestt in excess of that permitted by applicable
law, then it is Maker's and Payee's express intent that all excess amounts
theretofore collected by Payee be credited on the principal balance of this
Note (or, if the Note has been paid in full, refunded to Maker), and the
provisions of this Note and the Security Documents immediately be deemed
reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder and thereunder.
All sums paid or agreed to be paid to Payee for the use, forbearance or
detention of the indebtedness evidenced hereby and by the other Security
Documents shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed the usury ceiling from time to time in effect and
applicable to the Loan for so long as debt is outstanding under the Loan.
The term "Maker" as used in this Note shall mean and have reference to,
collectively, all parties and each of them directly or indirectly obligated for
the indebtedness evidenced by this Note, whether as principal maker, endorser,
guarantor, or otherwise, together with the respective heirs, administrators,
executors, legal representatives, successors and assigns of each of the
foregoing.
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All notices hereunder shall be given at the following addresses: If to
Maker, c/o CBL & Associates Limited Partnership, One Park Place, 6148 Lee
Highway, Chattanooga, Tennessee 37421, Attention: President. If to Payee,
Suite 1805, 2859 Paces Ferry Road, Atlanta, Georgia 30339, with a copy of all
notices to Chief Credit Officer - Real Estate Group, Wells Fargo Bank, National
Association, 420 Montgomery Street, 6th Floor, San Francisco, California 94163.
Either party may change their address for notice purposes upon giving thirty
(30) days' prior notice thereof to the other party in accordance with this
paragraph. All notices given hereunder shall be in writing and shall be
considered properly given if mailed by first-class United States mail, postage
prepaid, registered or certified with return receipt requested, if sent by
national overnight courier providing documentation of receipt, if delivered in
person, or if sent by prepaid telegram, telex or telecopy, with a copy of any
communication so sent by telegram, telex or telecopy being sent by mail,
overnight courier or personal delivery as aforesaid. Any notice mailed as
above provided shall be effective three (3) business days after its deposit in
the custody of the United States Postal Service; all other notices shall be
effective upon receipt.
Whenever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Note.
IN WITNESS WHEREOF, this Note has been duly executed under seal in
Chattanooga,
Tennessee on the date first above written.
"MAKER"
ASHEVILLE, LLC, a North Carolina limited liability
company (SEAL)
By: CBL & Associates Limited Partnership, a
Delaware limited partnership, its sole member
By: CBL Holdings I, Inc., a Delaware
corporation, its sole general partner
By: /c/ John N. Foy
--------------------------------------
By: John N. Foy
---------------------------------------
Its: Executive Vice President
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Attest /c/ Jeffery V. Curry
--------------------------------------------
Attest Jeffery V. Curry
-------------------------------------------
Its: Assistant Secretary
(CORPORATE SEAL)
This signature page is attached to and is a part of that certain Promissory
Note in the original principal amount of Forty-Eight Million Nine Hundred
Thousand and No/100 Dollars ($48,900,000.00), from Asheville, LLC, as
"Maker," to Wells Fargo Bank, National Association, as "Payee."
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