AMENDED AND RESTATED LOAN AGREEMENT (This Amended and Restated Loan Agreement amends, restates, and replaces that certain Amended and Restated Loan Agreement dated as of May 15, 2009, among the undersigned Borrower and Bank.)
AMENDED AND RESTATED LOAN
AGREEMENT
(This
Amended and Restated Loan Agreement amends, restates, and replaces that certain
Amended and Restated Loan Agreement dated as of May 15, 2009, among the
undersigned Borrower and Bank.)
THIS AMENDED AND RESTATED LOAN
AGREEMENT ("Loan Agreement") is made as of July 29, 2010, by and between
CBL & ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership, whose address is CBL Center,
Suite 500, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
("Borrower") and FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the statutes of the United States of America, with
a principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as the "Bank").
Recitals of
Fact
Borrower
has requested that Bank commit to make loans and advances to it on a revolving
credit basis in an amount not to exceed at any one time outstanding the
aggregate principal sum of One Hundred Five Million Dollars ($105,000,000.00)
for the purpose of providing working capital for pre-development expenses,
development costs, equity investments, repayment of existing indebtedness,
certain distributions to limited partners (as allowed herein), letters of credit
and construction and for general corporate purposes. Bank has agreed
to make certain portions of such loans and advances on the terms and conditions
herein set forth. Manufacturers and Traders Trust Company, Compass
Bank, Regions Bank and Branch Banking and Trust Company, all as participants in
the Loan have also agreed to make certain portions of such loan and advances on
the terms and conditions previously set forth and now on the terms and
conditions herein set forth.
This Loan
Agreement is currently being amended to: (a) extend the maturity date two (2)
years; and (b) adjust certain covenants.
NOW,
THEREFORE, incorporating the Recitals of Fact set forth above and in
consideration of the mutual agreements herein contained, the parties agree as
follows:
AGREEMENTS
SECTION
1: DEFINITIONS AND ACCOUNTING TERMS
1.1 Certain
Defined Terms. For the purposes of this Loan Agreement, the
following terms shall have the following meanings (such meanings to be
applicable equally to both the singular and plural forms of such terms) unless
the context otherwise requires:
1
"Adjusted
Asset Value" means, as of a given date, the sum of EBITDA attributable to malls,
power centers and all other assets for the trailing four (4) quarters most
recently ended, divided by (iii)
7.75%. In determining Adjusted Asset Value:
(i) EBITDA
attributable to real estate properties acquired during the most recently ended
fiscal quarter shall be disregarded;
(ii) EBITDA
attributable to real estate properties acquired before the most recently ended
fiscal quarter but during the three (3) fiscal quarters preceding the most
recently ended fiscal quarter shall be annualized, based upon the period
beginning on the date of its acquisition through the measurement
date;
(iii) EBITDA
attributable to Properties whose development was completed during such trailing
four fiscal quarters shall be disregarded;
(iv) EBITDA
attributable to and Properties whose development was completed before such
trailing four fiscal quarters but during any of the four (4) fiscal quarters
preceding such trailing four (4) fiscal quarters, shall be annualized, based
upon the period beginning on the first month after the first anniversary of its
completion and ending on the measurement date;
(v) EBITDA
attributable to any Property which is currently under development shall be
excluded;
(vi) With
respect to any Subsidiary that is not a Wholly Owned Subsidiary, only Borrower’s
Ownership Share of EBITDA attributable to such Subsidiary shall be used when
determining Adjusted Asset Value; and
(vii) EBITDA
shall be attributed to malls and power centers based on the ratio of (x)
revenues less property operating expenses (to be determined exclusive of
interest expense, depreciation and general and administrative expenses) of malls
and power centers to (y) total revenues less total property operating expenses
(similarly determined), such revenues and expenses to be determined on a basis
and in a manner consistent with Parent’s method of reporting of segment
information in the notes to its financial statements for the fiscal quarter
ended March 31, 2009 as filed with the Securities and Exchange Commission, and
otherwise in a manner reasonably acceptable to Bank.
In
addition, in the case of any operating Property acquired in the immediately
preceding period of twenty-four (24) consecutive months for a purchase price
indicative of a capitalization rate of less than 7.0% EBITDA attributable to
such Property shall be excluded from the determination of Adjusted Asset Value,
if that particular operating Property is valued in Parent’s financial statements
at its purchase price.
"Adjusted
Loan Amount" means the lesser of (a) 65% of the Appraised Value the real estate
and improvements described in the Mortgages; or (b) the Permanent Loan Estimate
of all Collateral Properties; or (c) $105,000,000.00.
2
"Affiliate"
means as to any Person, any other Person which, directly or indirectly, owns or
controls, on an aggregate basis including all beneficial ownership and ownership
or control as a trustee, guardian or other fiduciary, at least ten percent (10%)
of the outstanding shares of Capital Stock or other ownership interest having
ordinary voting power to elect a majority of the board of directors or other
governing body (irrespective of whether, at the time, stock of any other class
or classes of such corporation shall have contingency) of such Person or at
least ten percent (10%) of the partnership or other ownership interest of such
Person; or which controls, is controlled by or is under common control with such
Person. For the purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, whether through the ownership of voting
securities, by contract or otherwise. Notwithstanding the foregoing,
a pension fund, university or other endowment funds, mutual fund investment
company or similar fund having a passive investment intent owning such a ten
percent (10%) or greater interest in a Person shall not be deemed an Affiliate
of such Person unless such pension, mutual, endowment or similar fund either (i)
owns fifty percent (50%) or more of the Capital Stock or other ownership
interest in such Person, or (ii) has the right or power to select one or more
members of such Person's board of directors or other governing
body.
"Agreement
Date" means the date as of which this Loan Agreement is dated.
"Applicable
Law" means, in respect of any Person, all provisions of statutes, rules,
regulations and orders of any governmental authority applicable to such Person,
and all orders and decrees of all courts and arbitrators in proceedings or
actions in which the person in question is a party.
"Bank's
Proportionate Share" means Bank's undivided participating interest in the Loan
which shall be equal to Twenty Seven Million Five Hundred Thousand and NO/100
Dollars ($27,500,000.00).
"Base
Rate" means the base commercial rate of interest established from time to time
by Bank. The Base Rate existing as of the date hereof is three and
twenty five hundredths percent (3.25%) per annum.
"Borrower"
has the meaning set forth in the introductory paragraph hereof and shall include
Borrower’s successors and permitted assigns.
"Borrowing
Base" is the limitation on the aggregate Revolving Credit Loan indebtedness
which may be outstanding at any time during the term of this Loan
Agreement. The Borrowing Base will normally be calculated each July
1, January 1, April 1 and October 1 but shall be subject to recalculation upon
the occurrence of any extraordinary event, such as the addition or release of
any collateral, or an extraordinary event that materially affects the value of
any collateral. The Borrowing Base will be an amount not to exceed
the Adjusted Loan Amount.
"Borrowing
Base Certificate" means a report certified by the controller or chief financial
officer or Senior Vice President of Borrower, setting forth the calculations
required to establish the Borrowing Base as of a specified date, all in form and
detail reasonably satisfactory to Bank.
3
"Business
Day" means a banking business day of Bank and which is also a day on which
dealings are carried on in the interbank eurodollar market.
"Capital
Stock" shall mean, as to any Person, any and all shares, interests, warrants,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Capitalized Lease Obligation" means
obligations under a lease (to pay rent or other amounts under any lease or other
arrangement conveying the right to use) that are required to be capitalized for
financial reporting purposes in accordance with GAAP. The amount of a
Capitalized Lease Obligation is the capitalized amount of such obligation
determined in accordance with GAAP.
"CBL
Holdings I" means CBL Holdings I, Inc., a Delaware corporation and the sole
general partner of Borrower, and shall include CBL Holdings I, its successors
and permitted assigns.
"CBL
Holdings II" means CBL Holdings II, Inc., a Delaware corporation and a limited
partner of Borrower, and shall include CBL Holdings II, its successors and
permitted assigns.
"CBL
& Associates Management, Inc." means CBL & Associates Management, Inc.,
a Delaware corporation, and shall include CBL & Associates Management,
Inc.’s successors and permitted assigns.
"CBL
Mortgage" means the mortgages and/or deeds of trust with security agreements and
assignments of rents and leases and related amendments executed by
Borrower, Walnut Square Associates Limited Partnership, The Lakes Mall, LLC, CBL
Morristown, Ltd., Citadel Mall DSG, LLC, Laredo/MDN II Limited Partnership, The
Shoppes at ▇▇▇▇▇▇▇▇ Place, LLC and/or any other entity related to or owned by
Borrower and/or Parent and/or CBL Holdings I in favor of Bank covering their
interest in the properties described in Exhibit
"A," attached hereto and made a part hereof.
"Closing
Date" means the date of this Loan Agreement set out in the first paragraph of
this Loan Agreement.
"Collateral
Document" means any Guaranty, the CBL Mortgage, any security deed, mortgage,
deed of trust, assignment of leases and rents, any property management contract
assignments, and any other security agreement, financing statement, or other
document, instrument or agreement creating, evidencing or perfecting Bank’s
Liens in any of the Collateral.
"Collateral
Property" means the property described in the CBL Mortgage.
"Credit
Agreement" means the Seventh Amended and Restated Credit Agreement dated as of
September 28, 2009 among Borrower, ▇▇▇▇▇ Fargo and others, as amended from time
to time.
"Debt
Service" means, with respect to a Person and for a given period, the sum of the
following: (a) such Person’s Interest Expense for such period; (b) regularly
scheduled principal payments on Indebtedness of such Person made during such
period, other than any balloon,
4
“Default
Rate” means the rate of interest described in the Note, which shall accrue at
Bank’s option after the occurrence of an Event of Default which remains uncured
after any applicable grace period.
"Defaulting
Lender" means any Lender that shall fail or refuse to perform any of its
obligations under this Agreement or any other Loan Document to which it is a
party within the time period specified for performance of such obligation or, if
no time period is specified, if such failure or refusal continues for a period
of five (5) Business Days after notice from the Bank.
"Derivatives Contract" means (a) any
transaction (including any master agreement, confirmation or other agreement
with respect to any such transaction) now existing or hereafter entered into by
the Borrower or any of its Subsidiaries (i) which is a rate swap transaction,
swap option, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option, credit protection transaction, credit swap,
credit default swap, credit default option, total return swap, credit spread
transaction, repurchase transaction, reverse repurchase transaction,
buy/sell-back transaction, securities lending transaction, weather index
transaction or forward purchase or sale of a security, commodity or other
financial instrument or interest (including any option with respect to any of
these transactions) or (ii) which is a type of transaction that is similar to
any transaction referred to in clause (i) above that is currently, or in the
future becomes, recurrently entered into in the financial markets (including
terms and conditions incorporated by reference in such agreement) and which is a
forward, swap, future, option or other derivative on one or more rates,
currencies, commodities, equity securities or other equity instruments, debt
securities or other debt instruments, economic indices or measures of economic
risk or value, or other benchmarks against which payments or deliveries are to
be made, and (b) any combination of these transactions.
"Derivatives Termination Value" means,
in respect of any one or more Derivatives Contracts, after taking into account
the effect of any legally enforceable netting agreement or provision relating
thereto, (a) for any date on or after the date such Derivatives Contracts have
been terminated or closed out, the termination amount or value determined in
accordance therewith, and (b) for any date prior to the date such Derivatives
Contracts have been terminated or closed out, the then-current ▇▇▇▇-to-market
value for such Derivatives Contracts, determined based upon one or more
mid-market quotations or estimates provided by any recognized dealer in
Derivatives Contracts (which may include the Administrative Agent, any Lender,
any Specified Derivatives Provider or any Affiliate of any
thereof).
5
"EBITDA" means, for any period, net
income (loss) of the Parent and its Subsidiaries determined on a consolidated
basis for such period excluding the following amounts (but only to the extent
included in determining net income (loss) for such period and without
duplication):
(a)
depreciation and amortization expense and other
non-cash charges for such period (less depreciation and amortization expense
allocable to non-controlling interest in Subsidiaries of the Borrower for such
period);
(b)
interest expense for such period (less interest
expense allocable to non-controlling interest in Subsidiaries of the Borrower
for such period);
(c)
non-controlling interest in earnings of the Borrower
for such period;
(d) (i)
extraordinary and non-recurring net gains or losses (other than
gains or losses from the sale of outparcels of Properties), except as otherwise
provided in
clause
(d)(ii) below) for such period;
(ii) gains
or losses from the sale of outparcels and non-operating Properties for such
period (provided however, that the gains or losses from such sales of outparcels
and non-operating Properties may not exceed five percent (5%) of EBITDA
calculated prior to taking such gains or losses into account); and
(iii)
expense relating to the extinguishment of Indebtedness for such
period;
(e)
net gains or losses on the disposal of discontinued
operations for such period;
(f)
expenses incurred during such period with respect to
any real estate project abandoned by the Parent or any Subsidiary in such
period;
(g)
income tax expense in respect of such
period;
(h)
the Parent's Ownership Share of depreciation and
amortization expense and other non-cash charges of Unconsolidated Affiliates of
the Parent for such period; and
(i)
the Parent's Ownership Share of interest expense of
Unconsolidated Affiliates of the Parent for such period.
"Effective
Date" means the date the Credit Agreement became effective.
"Environmental
Laws" means all applicable local, state or federal laws, rules or regulations
pertaining to environmental regulation, contamination or cleanup, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Resource Conservation and Recovery Act of 1976 or any
state lien or superlien or environmental cleanup statutes all as amended from
time to time.
6
"Equity
Interest" means, with respect to any Person, any share of Capital Stock of (or
other ownership or profit interests in) such Person, any warrant, option or
other right for the purchase or other acquisition from such Person of any share
of Capital Stock of (or other ownership or profit interests in) such Person, any
security convertible into or exchangeable for any share of Capital Stock of (or
other ownership or profit interests in) such Person or warrant, right or option
for the purchase or other acquisition from such Person of such shares (or such
other interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, whether or not certificated and whether or not such
share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.
"Equity
Issuance" means any issuance or sale by a Person of any Equity
Interest.
"Event of
Default" has the meaning assigned to that phrase in Section 8.
"Extension
of Credit" means, with respect to a Person, any of the following, whether
secured or unsecured: (a) loans to such Person, including without limitation,
lines of credit and mortgage loans; (b) bonds, debentures, notes and similar
instruments issued by such Person; (c) reimbursement obligations of such
Person under or in respect of any letter of credit; and (d) any of the
foregoing of other Persons, the payment of which such Person Guaranteed or is
otherwise recourse to such Person.
"GAAP"
means United States generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity, including without limitation, the Securities and Exchange
Commission, as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Gross
Asset Value" means, at a given time, the sum (without duplication) of the
following:
(a) Adjusted
Asset Value at such time;
(b) all
cash and cash equivalents of Parent and its Subsidiaries determined on a
consolidated basis as of the end of the fiscal quarter most recently ended
(excluding tenant deposits and other cash and cash equivalents the disposition
of which is restricted in any way (other than restrictions in the nature of
early withdrawal penalties));
(c) with
respect to any Property which is under construction or the development of which
was completed during any of the four (4) fiscal quarters most recently ended,
the book value of construction in process as determined in accordance with GAAP
for all such Properties at such time (including without duplication Parent’s
Ownership Share of all construction in process of Unconsolidated Affiliates of
Parent);
(d) the
book value of all unimproved real property of Parent and its Subsidiaries
determined on a consolidated basis;
7
(e) the
purchase price paid by Parent or any Subsidiary (less any amounts paid to Parent
or such Subsidiary as a purchase price adjustment, held in escrow, retained as a
contingency reserve, or other similar arrangements) as required to be disclosed
in a consolidated balance sheet (including the notes thereto) of Parent
for:
(i) any
Property (other than a property under development) acquired by Parent or such
Subsidiary during Parent’s fiscal quarter most recently ended; and
(ii) any
operating Property acquired in the immediately preceding period of twenty four
(24) consecutive months for a purchase price indicative of a capitalization rate
of less than 7.00%; provided, that if Parent or a Subsidiary acquired such
Property together with other Properties or other assets and paid an aggregate
purchase price for such Properties and other assets, then Parent shall allocate
the portion of the aggregate purchase price attributable to such Property in a
manner consistent with reasonable accounting practices; provided
further in no event shall the aggregate of value of such operating
Properties included in the Gross Asset Value pursuant to this clause (e)(ii)
exceed $2,000,000,000.00.
(f) with
respect to any purchase obligation, repurchase obligation or forward commitment
evidenced by a binding contract included when determining the Total Liabilities
of Parent and its Subsidiaries, the reasonably determined value of any amount
that would be payable, or property that would be transferable, to Parent or any
Subsidiary if such contract were terminated as of such date; and
(g) to
the extent not included in the immediately preceding clauses (a) through (f),
the value of any real property owned by a Subsidiary (that is not a Wholly Owned
Subsidiary) of Borrower or an Unconsolidated Affiliate of Borrower (such
Subsidiary or Unconsolidated Affiliate being a "JV") and which property secures
Recourse Indebtedness of such JV. For purposes of this clause (g):
(x) the value of
such real property shall be the lesser of (A) the Permanent Loan Estimate which
would be applicable to such real property were such property a Collateral
Property and (B) the amount of Recourse Indebtedness secured by such real
property;
(y) in no event shall
the aggregate value of such real property included in Gross Asset Value pursuant
to this clause (g) exceed $500,000,000.00; and
(z) the value of
any such real property shall only be included in Gross AssetValue if the organizational documents of such
JV provide that if, and to the extent, suchIndebtedness is paid by Borrower or a
Subsidiary of Borrower or by resort to suchreal property, then Borrower or a Subsidiary of
Borrower shall automatically acquire, without the necessity of any further
payment or action, all Equity Interests in such JV not owned by Borrower or any
Subsidiary.
"Guaranty",
"Guaranteed" or to "Guarantee" as applied to any obligation means and includes
(a) a guaranty (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), directly or indirectly, in any
manner, of any part or all of such obligation, or (b) an agreement, direct or
indirect, contingent or otherwise, and whether or not
8
"Hazardous
Substances" shall mean and include all hazardous and toxic substances, wastes or
materials, any pollutants or contaminants (including, without limitation,
asbestos and raw materials which include hazardous constituents), or any other
similar substances or materials which are included under or regulated by any
applicable Environmental Laws.
"Indebtedness"
means, with respect to a Person, at the time of computation thereof, all of the
following (without duplication):
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(a)
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all
obligations of such Person in respect of money
borrowed;
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(b)
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all
obligations of such Person (other than trade debt incurred in the ordinary
course of business), whether or not for money
borrowed
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(c)
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represented
by notes payable, or drafts accepted, in each case representing extensions
of credit (but only to the extent of any outstanding
balance),
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(d)
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evidenced
by bonds, debentures, notes or similar instruments (but only to the extent
such debt is not otherwise included in Indebtedness),
or
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(e)
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constituting
purchase money indebtedness, conditional sales contracts, title retention
debt instruments or other similar instruments, upon which interest charges
are customarily paid or that are issued or assumed as full or partial
payment for property;
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(f)
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Capitalized
Lease Obligations of such Person;
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(g)
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all
reimbursement obligations of such Person under or in respect of any
letters of credit or acceptances (whether or not the same have been
presented for payment);
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(h)
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all
Off-Balance Sheet Obligations of such
Person;
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(i)
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all
obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interest issued after
the Effective Date by such Person or any other Person, valued at the
greater or its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends;
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(j)
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net
obligations under any Derivative Contract (which shall be deemed to have
an amount equal to the Derivatives Termination Value thereof at such time
but in no event shall be less than zero);
and
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(k)
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all
Indebtedness of other Persons which (i) such Person has Guaranteed or is
otherwise recourse to such Person or (ii) is secured by a Lien on any
property of such Person.
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9
"Interest
Expense" means, with respect to a Person and for any period,
(a) the
total interest expense (including, without limitation, interest expense
attributable to capitalized lease obligations) of such Person and in any event
shall include all letter of credit fees amortized as interest expense and all
interest expense with respect to any Indebtedness in respect of which such
Person is wholly or partially liable whether pursuant to any repayment, interest
carry, performance Guarantee or otherwise, plus
(b) to
the extent not already included in the foregoing clause (a) such Person’s
Ownership Share of all paid or accrued interest expense for such period of
Unconsolidated Affiliates of such Person.
Interest
Expense allocable to minority interest in Subsidiaries of Borrower shall be
excluded from Interest Expense of Parent and its Subsidiaries when determined on
a consolidated basis.
"Investment"
means, with respect to any Person, any acquisition or investment (whether or not
of a controlling interest) by such Person, whether by means of (a) the purchase
or other acquisition of any Equity Interest in another Person, (b) a loan,
advance or extension of credit to, capital contribution to, Guaranty of
Indebtedness of, or purchase or other acquisition of any Indebtedness of,
another Person, including any partnership or joint venture interest in such
other Person, or (c) the purchase or other acquisition (in one transaction or a
series of transactions) of assets of another Person that constitute the business
or a division or operating unit of another Person. Any commitment or
option to make an Investment in any other Person shall constitute an
Investment. Except as expressly provided otherwise, for purposes of
determining compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Lender" means each financial
institution from time to time party hereto as a "Lender", together with its
respective successors and permitted assigns; provided, however, that the term
"Lender", except as otherwise expressly provided herein, shall not include any
Lender (or its Affiliates) in its capacity as a Specified Derivatives
Provider. With respect to matters requiring the consent or approval
of all Lenders at any given time, all then existing Defaulting Lenders will be
disregarded and excluded, and, for voting purposes only, "all Lenders" shall be
deemed to mean "all Lenders other than Defaulting Lenders".
"Letter
of Credit Documents" means, with respect to any letter of credit issued in
connection with the Loan, collectively, any application therefor, any
certificate or other document presented in connection with a drawing under such
letter of credit and any other agreement, instrument or other document governing
or providing for (a) the rights and obligations of the parties concerned or at
risk with respect to such letter of credit or (b) any collateral security for
any of such obligations.
"LIBOR
Rate" has the same meaning as used in the Note.
10
"Lien" as
applied to the property of any Person means: (a) any security interest,
encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases
and rents, pledge, lien, charge or lease constituting a capitalized lease
obligation, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) any arrangement,
express or implied, under which any property of such Person is transferred,
sequestered or otherwise identified for the purpose of subjecting the same to
the payment of Indebtedness or performance of any other obligation in priority
to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the UCC or its equivalent in any
jurisdiction; and (d) any agreement by such Person to grant, give or otherwise
convey any of the foregoing.
"Loan"
means the Revolving Credit Loan from Bank to Borrower.
"Loan
Agreement" means this Loan Agreement among Borrower and Bank, and any
modifications, amendments, or replacements thereof, in whole or in
part.
"Loan
Document" means this Loan Agreement, each Note, each Collateral Document, each
Letter of Credit Document and each other document or instrument now or hereafter
executed and delivered by a Loan Party or Parent in connection with, pursuant to
or relating to this Loan Agreement.
"Loan
Party" means Borrower, Parent, and each other Person who guarantees all or a
portion of the Loan and/or who pledges any Collateral to secure all or a portion
of the Loan.
"Maximum
Rate" means the maximum variable contract rate of interest which Bank may
lawfully charge under applicable statutes and laws from time to time in
effect.
"Mortgages"
or "Mortgage" means a mortgage, deed of trust, deed to secure debt or similar
security instrument made or to be made by a Person owning real estate or an
interest in real estate granting a Lien on such real estate or interest in real
estate as security for the payment of indebtedness.
"Net
Operating Income" means, for any Collateral Property and for the period of
twelve (12) consecutive calendar months most recently ending, the sum of the
following (without duplication):
(a) rents
and all other revenues received in the ordinary course from such Property
(including proceeds of rent loss insurance but excluding pre-paid rents and
revenues and security deposits except to the extent applied in satisfaction of
tenants’ obligations for rent); minus
(b) all
expenses paid related to the ownership, operation or maintenance of such
Property, including without limitation, taxes and assessments, insurance,
utilities, payroll costs, maintenance, repair and landscaping expenses and
marketing expenses; minus
(c) an
amount equal to (i) the aggregate square footage of all owned space of such
Property times
(ii) $0.20; minus
11
(d) an
imputed management fee in the amount of three percent (3.0%) of the aggregate
base rents and percentage rents received for such Property for such
period.
"Net
Proceeds" means with respect to an Equity Issuance by a Person, the aggregate
amount of all cash received by such Person in respect of such Equity Issuance
net of investment banking fees, legal fees, accountants fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred by such Person in connection with such Equity Issuance.
“Newly Acquired Property” means
Property acquired by Borrower, Parent and/or their respective Subsidiaries
during any fiscal quarter for which compliance with financial covenants is being
tested.
"Nonrecourse
Indebtedness" means, with respect to a Person, an Extension of Credit or other
Indebtedness in respect of which recourse for payment (except for customary
exceptions for fraud, misapplication of funds, environmental indemnities, and
other similar customary exceptions to recourse liability) is contractually
limited to specific assets of such Person encumbered by a Lien securing such
Extension of Credit or other Indebtedness.
"Note"
means the revolving credit note of even date herewith executed by Borrower to
Bank in the original principal sum of One Hundred Five Million Dollars
($105,000,000.00), as such note may be modified, renewed or extended from time
to time; and any other note or notes executed at any time to evidence the
indebtedness under this Loan Agreement, in whole or in part, and any renewals,
modifications and extensions thereof, in whole or in part.
"Off-Balance Sheet Obligations" means
liabilities and obligations of the Parent, the Borrower, any Subsidiary or any
other Person in respect of "off-balance sheet arrangements" (as defined in Item
303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act) which the
Parent would be required to disclose in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations" section of the
Parent's report on Form 10-Q or Form 10-K (or their equivalents) which the
Parent is required to file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor).
"Ownership
Share" means, with respect to any Subsidiary of a Person (other than a Wholly
Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of
(a) such Person’s relative nominal direct and indirect ownership interest
(expressed as a percentage) in such Subsidiary or Unconsolidated Affiliate or
(b) subject to compliance with Section 9.4(i) of the Credit Agreement, such
Person’s relative direct and indirect economic interest (calculated as a
percentage) in such Subsidiary or Unconsolidated Affiliate determined in
accordance with the applicable provisions of the declaration of trust, articles
or certificate of incorporation, articles of organization, partnership
agreement, joint venture agreement or other applicable organizational document
of such Subsidiary or Unconsolidated Affiliate.
"Parent"
means CBL & Associates Properties, Inc., a Delaware corporation and a
qualified public REIT and formerly until March 31, 1997, the sole general
partner of Borrower and shall include Parent’s successors and permitted
assigns.
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"Participant"
means each of the following to the extent each of the following owns an interest
in the Loan pursuant to the Participation Agreement: Compass Bank, Regions Bank,
Branch Banking and Trust Company and Manufacturers and Traders Trust Company,
their respective successors and assigns, and any other participants in the
Loan.
"Participant's
Proportionate Share (BB&T)" means Branch Banking and Trust Company's (or any
successor to such bank's interest in the Loan) undivided participating interest
in the Loan and the letters of credit issued hereunder which, as of the date of
this Loan Agreement, shall be equal to Fifteen Million Dollars ($15,000,000.00)
divided by One Hundred Five Million Dollars ($105,000,000.00).
"Participant's
Proportionate Share (Compass)" means Compass Bank's, (or any successor to such
bank's interest in the Loan) undivided participating interest in the Loan and
the letters of credit issued hereunder which, as of the date of this
Loan Agreement, shall be equal to Fifteen Million and NO/100 Dollars
($15,000,000.00) divided by One Hundred Five Million Dollars
($105,000,000.00).
"Participant's
Proportionate Share (M&T)" means Manufacturers and Traders Trust Company (or
any successor to such bank's interest in the Loan) undivided participating
interest in the Loan and the letters of credit issued hereunder which, as of the
date of this Loan Agreement, shall be equal to Twenty Five Million and NO/100
Dollars ($25,000,000.00) divided by One Hundred Five Million Dollars
($105,000,000.00).
"Participant's
Proportionate Share (Regions)" means Regions Bank’s (or any successor to such
bank's interest in the Loan) undivided participating interest in the Loan and
the letters of credit issued hereunder which, as of the date of this Loan
Agreement, shall be equal to Twenty Two Million Five Hundred Thousand and NO/100
Dollars ($22,500,000.00) divided by One Hundred Five Million Dollars
($105,000,000.00) until June 1, 2011.
"Participants'
Proportionate Share" means Participant's Proportionate Share (M&T),
Participant's Proportionate Share (Compass), Participant's Proportionate Share
(Regions) and Participant's Proportionate Share (BB&T), as such
proportionate shares may change from time to time pursuant to the Participation
Agreement.
"Participation
Agreement" means that certain Participation Agreement entered into on or about
even date herewith, among Bank, M&T, Compass Bank, Regions Bank, and Branch
Banking and Trust Company and/or any other participants in the Loan, as amended
from time to time.
"Permanent
Loan Estimate" means, as of any date of determination and with respect to any
Collateral Property, an amount equal to (a) the trailing twelve (12) month Net
Operating Income of such Collateral Property divided by (b) the product of
(i) 1.25 and (ii) the mortgage constant for a 25-year loan bearing interest at a
per annum rate equal to the greater of: (aa) the average rate published in the
United States Federal Reserve Statistical Release (H.15) for 10-year Treasury
Constant Maturities during the previous four fiscal quarters plus 2.50% ; or (ab)
7.25%.
"Permitted
Encumbrances" shall mean and include:
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(a) liens for
taxes, assessments or similar governmental charges not in default or being
contested in good faith by appropriate proceedings;
(b) workmen's,
vendors', mechanics' and materialmen's liens and other liens imposed by law
incurred in the ordinary course of business, and easements and encumbrances
which are not substantial in character or amount and do not materially detract
from the value or interfere with the intended use of the properties subject
thereto and affected thereby;
(c) liens in
respect of pledges or deposits under social security laws, worker's compensation
laws, unemployment insurance or similar legislation and in respect of pledges or
deposits to secure bids, tenders, contracts (other than contracts for the
payment of money), leases or statutory obligations;
(d) any liens
and security interests specifically listed and described in Exhibit
"B" hereto attached or in any exhibit describing permitted exceptions and
attached to any CBL Mortgage;
(e) such
other liens and encumbrances to which Bank shall consent in writing;
and
(f) leases,
licenses, rental agreements or other agreements for use and occupancy of the
subject property.
"Person"
means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency
or political subdivision thereof.
"Property"
or "Properties" means a parcel (or group of related parcels) of real
property developed (or to be developed) for use as regional mall or retail strip
shopping center and any interest in any kind of property or asset, whether real,
personal or mixed, tangible or intangible.
"Recourse
Indebtedness" means any Indebtedness other than Nonrecourse
Indebtedness.
“REIT”
means a real estate investment trust, as defined in the Internal Revenue
Code.
"Related
Entities" or "Related Entity" means any entity which executed a promissory note,
guaranty or mortgage, deed of trust, deed to secure debt or any other collateral
or security documents in connection with or as a part of the Loan.
“Requisite
Lenders” means Bank and the participants having an aggregate proportionate share
in the Loan equal to no less than 66.67%.
“Restricted
Payment” means any of the following:
(a) any
dividend or other distribution, direct or indirect, on account of any shares of
any class of stock or other Equity Interest of Parent or any of its Subsidiaries
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock or other Equity Interest to the holders of that
class;
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(b) any
redemption, conversion, exchange, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of stock or other Equity Interest of Parent or any of its Subsidiaries
now or hereafter outstanding;
(c) any
payment or prepayment of principal of, premium, if any, or interest on,
redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund
or similar payment with respect to, any Subordinated Debt;
and
(d) any
payment made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock or other Equity
Interest of Parent or any of its Subsidiaries now or hereafter
outstanding.
"Revolving
Credit Advances" means advances of principal on the Revolving Credit Loan by
Bank under the terms of this Loan Agreement to Borrower during the term of the
Revolving Credit Loan pursuant to Section 3.1.
"Revolving
Credit Loan" means the Borrower's indebtedness owed to Bank pursuant to Section
2 of this Loan Agreement.
“Senior
Officer” means the Chairman, Vice Chairman, President, an Executive Vice
President, Executive Vice President-Finance, Senior Vice President-Real Estate
Finance, Executive Vice President–Accounting, Controller and Chief Financial
Officer of Borrower or Parent.
"Specified Derivatives Provider" means
any Lender, or any Affiliate of a Lender that is a party to a Derivatives
Contract at the time the Derivatives Contract is entered into.
“Subordinated
Debt” means Indebtedness for money borrowed of Borrower or any of its
Subsidiaries that is subordinated in right of payment and otherwise to the
Advances (as such term is defined in the Credit Agreement) and the other
Obligations (as such term is defined in the Credit Agreement) in a manner
satisfactory to Bank, in its sole and absolute discretion.
"Subsidiary"
or "Subsidiaries" means, for any Person, any corporation, partnership, limited
liability company or other entity of which at least a majority of the securities
or other ownership interests having by the terms thereof ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions of such corporation, partnership or other entity (without
regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such
Person.
"Tangible
Net Worth" means, as of a given date, the stockholders’ equity of Parent and its
Subsidiaries determined on a consolidated basis plus (x) increases in
accumulated depreciation accrued after September 30, 2002 and (y) minority
interests in Borrower minus (to the extent
reflected in determining stockholders’ equity of Parent and its Subsidiaries):
(a) the
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"Termination
Date of Revolving Credit Loan" shall mean the earlier of (a) June 1, 2012, or in
the event that Bank and Borrower shall hereafter mutually agree in writing that
the Revolving Credit Loan and Bank's commitment hereunder shall be extended to
another date, such other date mutually agreed upon between Bank and Borrower to
which Bank's commitment shall have been extended, or (b) the date as of which
Borrower shall have terminated Bank's commitment under the provisions of Section
2.5 hereof.
"Total
Liabilities" means, as to any Person as of a given date, all liabilities which
would, in conformity with GAAP, be properly classified as a liability on a
consolidated balance sheet of such Person as of such date, and in any event
shall include (without duplication and whether or not a liability under GAAP)
all of the following:
(a) all
letter of credits of such Person;
(b) all
purchase and repurchase obligations and forward commitments evidenced by binding
contracts, including forward equity commitments and contracts to purchase real
property, reasonably determined to be owing under any such contract assuming
such contract were terminated as of such date;
(c) all
quantifiable contingent obligations of such Person including, without
limitation, all Guarantees of Indebtedness by such Person and exposure under
swap agreements;
(d) all
Off-Balance Sheet Obligations of such Person and the Ownership Share of the
Off-Balance Sheet Obligations of Unconsolidated Affiliates of such
Person;
(e) all
Indebtedness of Subsidiaries of such Person, provided that Indebtedness of a
Subsidiary that is not a Wholly Owned Subsidiary shall be included in Total
Liabilities only to the extent of Borrower’s Ownership Share of such Subsidiary
(unless Borrower or a Wholly Owned Subsidiary of Borrower is otherwise obligated
in respect of such Indebtedness); and
(f) such
Person’s Ownership Share of the Indebtedness of any Unconsolidated Affiliate of
such Person.
For
purposes of this definition:
(1) Total
Liabilities shall not include Indebtedness with respect to letters of credit if,
and to the extent, such letters of credit are issued
(i) to
secure obligations to municipalities to perform work in connection with
construction of projects, such exclusion under this clause (i) to be to the
extent there are reserves for such obligations under the construction loan for
the applicable project;
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(ii) in
support of permanent loan commitments, in lieu of a deposit;
(iii) as
a credit enhancement for Indebtedness incurred by an Subsidiary of Borrower, but
only to the extent such Indebtedness is already included in Total Liabilities;
or
(iv) as
a credit enhancement for Indebtedness incurred by a Person which is not an
Affiliate of Borrower, such exclusion under this clause (iv) to be to the extent
of the value of any collateral provided by such Person to secure such letter of
credit.
(2) obligations
under short-term repurchase agreements entered into as part of a cash management
program shall not be included as Total Liabilities;
(3) all
items included in line item "Accounts Payable and Accrued Liabilities" under the
category of "Liabilities and Shareholder's Equity" in the Consolidated Balance
Sheets included in Parent's Form 10-Q or Form 10-K (or their equivalent) filed
with the SEC shall not be included as Total Liabilities.
"UCC"
means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"Unconsolidated
Affiliate" means, with respect to any Person, any other Person in whom such
Person holds an Investment, which Investment is accounted for in the financial
statements of such Person on an equity basis of accounting and whose financial
results would not be consolidated under GAAP with the financial results of such
Person on the consolidated financial statements of such Person.
"▇▇▇▇▇
Fargo" means ▇▇▇▇▇ Fargo Bank, National Association.
"Wholly
Owned Subsidiary" means any Subsidiary of a Person in respect of which all of
the equity securities or other ownership interests (other than, in the case of a
corporation, directors’ qualifying shares) are at the time directly or
indirectly owned or controlled by such Person or one or more other Subsidiaries
of such Person or by such Person and one or more other Subsidiaries of such
Person.
1.2 Accounting
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
required to be delivered from time to time pursuant to Section 6.5
hereof.
SECTION
2: COMMITMENT;
FUNDING AND TERMS OF REVOLVING CREDIT LOAN
2.1 The
Commitment. Subject to the terms and conditions herein set
out, Bank agrees and commits to make loan advances to and issue letters of
credit for the account of Borrower from time to time, from the Closing Date
until the Termination Date of Revolving Credit Loan, in an aggregate principal
amount of the loan advances and the face amount of any letters of credit not to
exceed, at any one time outstanding, the lesser of (a) One Hundred Five Million
Dollars ($105,000,000.00), (b) Borrower's Borrowing Base, as defined in Section
1; or
17
2.2 Funding
the Loan. Each loan advance hereunder shall be made upon the
written request of Borrower to Bank, specifying the date and amount and intended
use thereof. All advances hereunder shall be made by depositing the
same to the checking account of Borrower at Bank or other methods acceptable to
Borrower and Bank.
2.3 The Note
and Interest. The Revolving Credit Loan shall be evidenced by
one (1) promissory note of Borrower payable to the order of Bank in the
aggregate principal amount of One Hundred Five Million Dollars
($105,000,000.00), in form substantially the same as the copy of the Note,
attached hereto as Exhibit
"C." The entire
principal amount of the Loan shall be due and payable on the Termination Date of
Revolving Credit Loan. The unpaid principal balances of the Revolving
Credit Loan shall bear interest from the Closing Date on disbursed and unpaid
principal balances (calculated on the basis of a year of 365 or 366 days as is
appropriate) at a rate per annum as specified in the Note. Said
interest shall be payable monthly on the fifth (5th) day
of each month after the Closing Date. Bank shall mail to Borrower a
billing notice at least ten (10) days prior thereto setting forth the payment
amount next due, but any failure to send such notice shall not relieve Borrower
of the obligation to pay accrued interest. The final installment of
interest, together with the entire outstanding principal balance of the
Revolving Credit Loan, shall be due and payable on the Termination Date of
Revolving Credit Loan. The first selection of the one (1) month,
three (3) months, six (6) months or LIBOR Rate shall be made by Borrower on or
prior to the date of the Note and each selection thereafter shall be made at
least twenty four (24) hours prior to the end of the then applicable interest
rate period. Borrower may not ever select a rate period which exceeds
the Termination Date of the Revolving Credit Loan. In the event
funding at the LIBOR Rate is not available as a matter of law, funding to the
extent allowed hereunder shall be at the Base Rate; however, the interest rate
shall never be less than four and fifty hundredths percent (4.50%) per
annum.)
2.4 Commitment
Fee/Servicing Fee/ Other Fees. On the Closing Date Borrower
will pay to Bank (in addition to the commitment fees it has previously paid) an
additional commitment/extension fee of Five Hundred Twenty Five Thousand and
No/100 Dollars ($525,000.00). In addition to the commitment/extension
fee, on each June 1, Borrower shall pay to Bank a servicing fee in the amount of
Forty Thousand and NO/100 Dollars ($40,000.00) for Bank's services in connection
with administering the Loan participation with the Participants. The
servicing fee shall belong solely to Bank and the Participants shall have no
interest therein. Borrower agrees that the commitment fees and
servicing fee are fair and reasonable considering the condition of the money
market, the creditworthiness of Borrower, the interest rate to be paid, and the
nature of the security for the Loan.
2.5 Borrowings
under, Prepayments or Termination of the Revolving Credit
Loan. Borrower may, at its option, from time to time, subject
to the terms and conditions of this Loan Agreement, without penalty, borrow,
repay and reborrow amounts under the Note, and
18
principal payments received shall be applied by Bank to the Note
all in such order and amounts as Bank deems appropriate in its sole
discretion.
By notice
to Bank in writing, Borrower shall be entitled to terminate Bank's commitment to
make further advances on the Revolving Credit Loan; and provided that the
Revolving Credit Loan and all interest and all other obligations of Borrower to
Bank arising hereunder shall have been paid in full, Bank shall thereupon at
Borrower's request release its security interest in all of Borrower's Property
securing the Revolving Credit Loan.
2.6 Substitution
of Collateral. Upon Bank's prior written approval, Borrower
may substitute collateral originally provided for the Revolving Credit Loan for
collateral of equal or greater value but such substituted collateral must be
acceptable to Bank and the acceptance thereof is solely within the discretion of
Bank.
2.7 Intentionally
Deleted.
2.8 Secondary
Financing by Parent Parent was formerly the general partner of
Borrower. It is also a real estate investment trust. In
the event Parent does any additional offering of its securities, if required by
Bank, it will apply no less than 75% net of expenses of the monies received from
such offering for the benefit of Borrower and will not use that percentage of
funds so received to capitalize or otherwise fund any other new partnerships or
entities that are not affiliates of Borrower.
2.9 Issuance
of Letters of Credit. To the extent that letters of credit are
requested by Borrower to be issued in connection with the Loan, Borrower agrees
to execute and deliver to Bank any documents reasonably requested by Bank
related to the issuance of the letters of credit, including but not limited to
Bank’s standard form of reimbursement agreement. The letters of
credit shall not have an expiry date beyond the maturity date of the
Note. Subject to compliance with the other terms and provisions of
this Loan Agreement, up to Twenty Million Dollars ($20,000,000.00) of the Loan
may be used for issuance of letters of credit for any purpose acceptable to
Bank. While the face amount of the letters of credit shall be counted
against availability under the Loan as described in Section 2.1, such amounts
shall only be deemed actual Loan advances when the letter of credit is drawn
upon.
SECTION
3: REQUIRED
PAYMENTS, PLACE OF PAYMENT, ETC.
3.1 Required
Repayments. In the event that the outstanding aggregate
principal balance of the Revolving Credit Loan including outstanding letters of
credit, shall at any time exceed the Borrowing Base, upon discovery of the
existence of such excess borrowings, Borrower shall, within ninety (90) days
from the date of such discovery, make a principal payment which will reduce the
outstanding principal balance of the Revolving Credit Loan to an amount which
does not exceed the Borrowing Base and/or at Borrower's option provide Bank with
additional collateral for the Revolving Credit Loan of a value and type
reasonably satisfactory to Bank which additional collateral shall be at a
minimum sufficient to secure the then outstanding balance of the Loan (after
credit for any principal reduction payment received from Borrower, if any), and
if Borrower intends to request additional advances under the Loan, the
additional collateral shall include collateral, deemed sufficient in Bank's
discretion, to secure
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In
addition and during such ninety (90) day period or until the principal payment
or satisfactory collateral is received, whichever is less, Borrower will not
make any additional requests for advances under the Revolving Credit
Loan. Once calculated, the Borrowing Base shall remain effective
until the next Borrowing Base calculation date as provided in Section 1 of this
Loan Agreement.
3.2 Place of
Payments. All payments of principal and interest on the
Revolving Credit Loan and all payments of fees required hereunder shall be made
to Bank, at its address listed in Section 9.2 of this Loan Agreement in
immediately available funds.
3.3 Payment
on Non-Business Days. Whenever any payment of principal,
interest or fees to be made on the indebtednesses evidenced by the Note shall
fall due on a Saturday, Sunday or public holiday under the laws of the State of
Tennessee, such payment shall be made on the next succeeding Business
Day.
SECTION
4: CONDITIONS
OF LENDING
4.1 Conditions
Precedent to Closing and Funding Initial Advance. The
obligation of Bank to fund the initial Revolving Credit Loan Advance after the
date of this Loan Agreement is subject to the condition precedent that Bank
shall have received, on or before the Closing Date, all of the following in form
and substance satisfactory to Bank:
(a) This Loan
Agreement.
(b) The
Note.
(c) The CBL
Mortgage, together with a title commitment from a title insurance company
acceptable to Bank, providing for the issuance of a mortgagee's loan policy
insuring the lien of the CBL Mortgage, in form, substance and amount
satisfactory to Bank, containing no exceptions which are unacceptable to Bank,
and containing such endorsements as Bank may require.
(d) Current
financial statements of Borrower in form satisfactory to Bank.
(e) Copies of
the limited partnership agreements, certificates of limited partnership,
charters, bylaws, articles of organization and operating agreements for all Loan
Parties and Related Entities (which Bank acknowledges it has previously
received), and all amendments thereto, and current certificates of existence and
certificates of authority for all Loan Parties and Related
Entities.
(f) Copies of
corporate resolutions of Borrower's general partner, and all Loan Parties and
Related Entities.
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(g) The
opinion of counsel for all Loan Parties and Related Entities, that the
transactions herein contemplated have been duly authorized by all requisite
corporate, partnership and/or limited liability company authority, that this
Loan Agreement and the other instruments and documents herein referred to have
been duly authorized, validly executed and are in full force and effect, and
pertaining to such other matters as Bank may require.
(h) A
certificate from an insurance company, satisfactory to Bank, setting forth the
information concerning insurance which is required by Section 6.3 of this Loan
Agreement; or, if Bank shall so require, certified copies of the original
insurance policies evidencing such insurance, all of which Bank acknowledges it
has previously received.
(i) Environmental
audits of the properties described in the CBL Mortgage, to the extent they have
not been previously provided to Bank.
(j) Surveys
of the College Square, Walnut Square and Shoppes at ▇▇▇▇▇▇▇▇ Place property
subject to the CBL Mortgage, indicating the location of all building lines,
easements (visible, reflected in the public records or otherwise) and any
existing improvements or encroachments, which surveys shall contain no set of
facts objectionable to Bank and shall be accompanied by Bank's usual survey
certificate.
(k) Copies of
the appraisals of the real estate described in Exhibit
"A" attached hereto.
(l) The
Guaranty Agreement of Parent guarantying the Loan (the "Guaranty
Agreements").
(m) All the
items and information shown on the Checklist for Closing, a copy of which is
attached hereto and marked Exhibit
"D".
4.2 Conditions
Precedent to All Revolving Credit Loan Advances. The
obligation of Bank to make Revolving Credit Advances pursuant hereto (including
the initial advance at the Closing Date) shall be subject to the following
additional conditions precedent:
(a) Borrower
shall have furnished to Bank, a written request stating the amount of Revolving
Credit Advance requested together with the intended use of the
advance.
(b) Borrower
and all Related Entities shall not be in default of any of the terms and
provisions hereof or of any instrument or document now or at any time hereafter
evidencing or securing all or any part of the Revolving Credit Loan
indebtednesses.
(c) Each of
the Warranties and Representations of Borrower, as set out in Section 5 hereof
shall remain true and correct in all material respects as of the date of such
Loan advance.
(d) Each
Guaranty Agreement shall be and remain in full force and effect.
(e) Within
ninety (90) days after each January 1 and within forty-five (45) days after each
July 1, April 1 and October 1, Borrower shall furnish to Bank a Non-Default
Certificate executed by a duly authorized officer of Borrower, in the form of
Exhibit
"E" attached hereto.
21
(f) If
required by Bank, Borrower shall have furnished to Bank an updated and current
title report with respect to the property or properties covered by any CBL
Mortgage held by Bank. If any lien shall have been placed on the
property subsequent to the date of this Loan Agreement or the applicable CBL
Mortgage, other than liens in favor of Bank, no additional advances shall be
made.
SECTION
5: REPRESENTATIONS
AND WARRANTIES
Borrower
represents and warrants that:
5.1 Partnership/Limited
Liability Company Status. Borrower is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware; it has the power and authority to own its properties and
assets and is duly qualified to carry on its business in every jurisdiction
wherein such qualification is necessary. The Lakes Mall, LLC is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Michigan; it has the authority to own its
properties and assets and is duly qualified to carry on its business in every
jurisdiction wherein such qualification is necessary. CBL Morristown,
Ltd. is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Tennessee; it has the authority to own
its properties and assets and is duly qualified to carry on its business in
every jurisdiction wherein such qualification is necessary. The Lakes
Mall, LLC is a wholly owned subsidiary of Borrower. Walnut Square
Associate Limited Partnership is a wholly owned subsidiary of
Borrower. CBL Morristown, Ltd. is a wholly owned subsidiary of
Borrower. Citadel Mall DSG, LLC is a wholly owned subsidiary of
Borrower. Laredo/MDN II Limited Partnership is a wholly owned
subsidiary of MDN/Laredo ▇▇ ▇▇, LLC which is a wholly owned subsidiary of
Borrower. The Shoppes at ▇▇▇▇▇▇▇▇ Place, LLC is a wholly owned
subsidiary of ▇▇▇▇▇▇▇▇ Road Limited Partnership which is a 91% owned subsidiary
of Borrower.
5.2 Power and
Authority. The execution, delivery and performance of the Loan
Agreement, the Note, the CBL Mortgage, and the other loan and collateral
documents executed pursuant hereto by Borrower and all Related Entities have
been duly authorized by all requisite action and, to the best of Borrower's
knowledge, will not violate any provision of law, any order of any court or
other agency of government, the limited partnership agreements, charter, bylaws
or limited liability company agreements of Borrower, or any Related Entity, any
provision of any indenture, agreement or other instrument to which Borrower, or
any Related Entity is a party, or by which Borrower's, and all Related Entities'
respective properties or assets are bound, or be in conflict with, result in a
breach of, or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of Borrower, or any Related
Entities, except for liens and other encumbrances provided for and securing the
indebtedness covered by this Loan Agreement.
5.3 Financial
Condition.
(a) (i)
Parent and Borrower's consolidated balance sheets for the fiscal year ended as
of December 31, 2009, and the related consolidated statements of operations and
Consolidated statements of cash flows for the year then ended filed with the SEC
in the Forms 10-Q and 10-K
22
(b) Since
March 31, 2010, there has been no substantial adverse change in the business,
properties, condition (financial or otherwise), or results of operations of
Borrower.
(c) (i) The
audited balance sheet of Parent for the fiscal year ended on December 31, 2009,
the unaudited balance sheet of Parent for the period ended December 31, 2009,
and the related statements of operations and of cash flows for the year ended
2009 and the period ended December 31, 2009, a copy of which has been furnished
to Bank, together with any explanatory notes therein referred to and attached
thereto, are correct and complete and fairly present the financial condition of
Parent as at the date of said balance sheets and the results of its operations
for said periods and as of the date of closing of this Loan Agreement and
related transactions, respectively. All such financial statements
have been prepared in accordance with GAAP applied on a consistent basis
maintained through the period involved.
(d) Since
December 31, 2009, there has been no substantial adverse change in the business,
properties, condition (financial or otherwise), or results of operations of
Parent.
(e) The
warranties and representations made in this Section 5.3 are and were made as of
the date of this Loan Agreement and any violation thereof shall be determined as
of that date.
5.4 Title to
Assets. Borrower and all Related Entities have good and
marketable title to all its properties and assets reflected on the most recent
balance sheet furnished to Bank subject to the Permitted Encumbrances with
respect to the properties described in the CBL Mortgages and subject to all
encumbrances, whether of record or not, with respect to all other
properties.
5.5 Litigation. There
is no action, suit or proceeding at law or in equity or by or before any
governmental instrumentality or other agency now pending, or, to the knowledge
of Borrower threatened against or affecting Borrower or any Related Entity, or
any properties or rights of Borrower or any Related Entities, which, if
adversely determined, would materially adversely affect the financial or any
other condition of Borrower or any Related Entity except as set forth in Exhibit
"F" attached hereto. With respect to the materialmens’ lien
litigation involving The Lakes Mall, Borrower agrees at Bank’s request, Borrower
will cause the materialmens' lien to be bonded off promptly and to the
satisfaction of Bank.
5.6 Taxes. Borrower
has filed or caused to be filed all federal, state or local tax returns which
are required to be filed, and has paid all taxes as shown on said returns or on
any
23
assessment received by it, to the extent that such taxes have
become due, except as otherwise permitted by the provisions hereof.
5.7 Contracts
or Restrictions. In Borrower's opinion, Borrower and the Related Entities
are not a party to any agreement or instrument or subject to any partnership
agreement or limited liability company or corporate restrictions adversely
affecting its business, properties or assets, operations or condition (financial
or otherwise) other than this Loan Agreement, other bank loan or property
partnership agreements that contain certain restrictive covenants or other
agreements entered into in the ordinary course of business.
5.8 No
Default. No Event of Default (as defined herein) has occurred
and not been waived under any agreement or instrument to which it is a party
beyond the expiration of any applicable notice and cure period, which default if
not cured would materially and substantially affect the financial condition,
property or operations of Borrower or any Related Entity. For the
purposes of this Paragraph 5.8, monetary defaults specifically excepted under
the provisions of Paragraph 8.2 (which excludes non-recourse debt) below shall
not be deemed material defaults.
5.9 Patents
and Trademarks. Borrower and all Related Entities possess all
necessary patents, trademarks, trade names, copyrights, and licenses necessary
to the conduct of its businesses.
5.10 ERISA. To
the best of Borrower's knowledge and belief, Borrower and all Related Entities
are in compliance with all applicable provisions of the Employees Retirement
Income Security Act of 1974 ("ERISA") and all other laws, state or federal,
applicable to any employees' retirement plan maintained or established by
it.
5.11 Hazardous
Substances. To the best knowledge of Borrower, no Hazardous
Substances are unlawfully located on or have been unlawfully stored, processed
or disposed of on or unlawfully released or discharged (including ground water
contamination) from any property owned by Borrower and/or any Related Entity
which is encumbered by the CBL Mortgage and no above or underground storage
tanks exist unlawfully on such property. No private or governmental
lien or judicial or administrative notice or action related to Hazardous
Substances or other environmental matters has been filed against any property
which, if adversely determined, would materially adversely affect the business,
operations or the financial condition of Borrower and/or any Related Entity
except as set forth in Exhibit
"F" attached hereto.
5.12 Ownership
of Borrower. As of the date hereof, CBL Holdings I owns an
approximate 1.06% general partner interest in Borrower and CBL Holdings II owns
a 71.59% limited partner interest in Borrower. Borrower has no other
general partners. As of the date hereof, Parent does not own a direct
interest in Borrower; however, it owns 100% of the stock of CBL
Holdings I and CBL Holdings II. As of the date hereof, CBL &
Associates, Inc., and officers and key employees of Borrower’s Affiliates own an
approximate 9.81% limited partner interest in Borrower. As of the
date hereof, CBL & Associates Management, Inc. owns no interest in
Borrower. As of the date hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Group, Inc. owns
an approximate 12.06% limited partner interest in Borrower and other investors
own an approximate 5.48% limited partner interest in Borrower. As of
the date hereof Borrower and its Affiliates own 100%
24
5.13 Intentionally
Deleted.
5.14 Outstanding
Balance on Note. The outstanding unpaid principal balance of
the Note as of July 22, 2010 is $54,000,000.00 and
the undisbursed amount of the Note as of July 22, 2010 is $51,000,000.00 and no defenses or
offsets exist against the holder of the Note or otherwise.
5.15 Intentionally
Deleted.
5.16 Anti-Terrorism. Neither
Parent, Borrower nor any of their Subsidiaries nor any Related Entity is or has
been designated, or is owned or controlled by, a “suspected terrorist” as
defined in Executive Order 13224, which prohibits transactions with terrorists
and terrorist organizations.
SECTION
6: AFFIRMATIVE
COVENANTS OF BORROWER
Borrower
covenants and agrees that from the date hereof and until payment in full of the
principal of and interest on indebtednesses evidenced by the Note, unless Bank
shall otherwise consent in writing, such consent to be at the discretion of Bank
and Borrower will and will cause all Related Entities to:
6.1 Business
and Existence. Perform all things necessary to preserve and
keep in full force and effect its respective existence, rights and franchises,
comply with all laws applicable to it and continue to conduct and operate its
business in a sound and prudent manner.
6.2 Maintain
Property. Maintain, preserve, and protect all leases,
franchises, and trade names and preserve all of its properties used or useful in
the conduct of its business in a sound and prudent manner, keep the same in good
repair, working order and condition, ordinary wear and tear excepted, and from
time to time make, or cause to be made, all needed and proper repairs, renewals,
replacements, betterments and improvements thereto so that the business carried
on in connection therewith may be properly conducted at all times.
6.3 Insurance.
(a) With
respect to all of the Property which serves as collateral for the Loan, at all
times maintain in some company or companies (having a Best's rating of A-:XI or
better) approved by Bank:
(i) Comprehensive
public liability insurance covering claims for bodily injury, death, and
property damage, with minimum limits satisfactory to Bank, but in any
25
(ii) Business
interruption insurance and/or loss of rents insurance in a minimum amount
specified by Bank, with loss payable clause in favor of Bank;
(iii) Hazard
insurance insuring all the Property which serves as collateral for the Loan
against loss by fire (with extended coverage) and against such other hazards and
perils (including but not limited to loss by windstorm, hail, explosion, riot,
aircraft, smoke, vandalism, malicious mischief and vehicle damage) as Bank, in
its sole discretion, shall from time to time require, all such insurance to be
issued in such form, with such deductible provision, and for such amount as
shall be satisfactory to Bank, with loss payable clause in favor of
Bank. Bank is hereby authorized and empowered, at its option, to
adjust or compromise any loss under any such insurance policies and to collect
and receive the proceeds from any such policy or policies as provided in the CBL
Mortgage; and
(iv) Such
other insurance as Bank may, from time to time, reasonably require by notice in
writing to Borrower.
(b) All
required insurance policies shall provide for not less than thirty (30) days'
prior written notice to Bank of any cancellation, termination, or material
amendment thereto; and in all such liability insurance policies, Bank shall be
named as an additional insured. Each such policy shall, in addition,
provide that there shall be no recourse against Bank for payment of premiums or
other amounts with respect thereto. Hazard insurance policies shall
contain the agreement of the insurer that any loss thereunder shall be payable
to Bank notwithstanding any action, inaction or breach of representation or
warranty by Borrower or any Related Entity. Borrower will deliver to
Bank original or duplicate policies of such insurance, or satisfactory
certificates of insurance, and, as often as Bank may reasonably request, a
report of a reputable insurance broker with respect to such
insurance. Any insurance proceeds received by Bank shall be applied
upon the indebtednesses, liabilities, and obligations of Borrower to Bank
(whether matured or unmatured) or, at Bank's option, released to
Borrower.
6.4 Obligations,
Taxes and Liens. Pay all of its indebtednesses and obligations
in accordance with normal terms and practices of its business and pay and
discharge or cause to be paid and discharged all taxes, assessments, and
governmental charges or levies imposed upon it or upon any of its income and
profits, or upon any of its properties, real, personal or mixed, or upon any
part thereof, before the same shall become in default, as well as all lawful
claims for labor, materials, and supplies which otherwise, if unpaid, might
become a lien or charge upon such properties or any part thereof; provided,
however, that Borrower and Related Entities shall not be required to pay and
discharge or to cause to be paid and discharged any such indebtedness,
obligation, tax, assessment, trade payable, charge, levy or claim so long as the
validity thereof shall be contested in good faith by appropriate proceedings
satisfactory to Bank, and Bank shall be furnished, if Bank shall so request,
bond or other security protecting it against loss in the event that such contest
should be adversely determined. In addition, Borrower shall
immediately pay, upon the request of Bank, all mortgage and/or intangible taxes
and/or penalties payable to government officials with respect to any CBL
Mortgage and/or the Note or, if Bank
26
6.5 Financial
Reports and Other Data. Furnish to Bank as soon as available:
(a) and in any event within ninety (90) days after the end of each fiscal year
of Borrower, an unqualified audit as of the close of such fiscal year of
Borrower, including a consolidated balance sheet and consolidated statements of
operations and consolidated statements of cash flows together with the
unqualified audit report and opinion of Deloitte & Touche, LP, Certified
Public Accountant, or other independent Certified Public Accountant which is
widely recognized and of good national repute or which is otherwise acceptable
to Bank, showing the financial condition of Borrower at the close of such year
and the results of operations during such year; and, (b) within forty-five (45)
days after the end of each fiscal quarter, (i) Parent’s consolidated balance
sheet, consolidated statement of income and retained earnings and consolidated
statements of changes, each prepared in accordance with GAAP, not audited but
certified by the Chief Executive Officer or the Chief Financial Officer or
Controller or a Senior Vice President or Vice President of Accounting of Parent,
such balance sheets to be as of the end of such quarter and such consolidated
statements to be for the period from the beginning of said year to the end of
such quarter, in each case subject only to audit and year-end adjustment and the
preparation of required footnotes, provided however, if
Parent files a Form 10-Q (or its) with the SEC then the financial statements
described above shall be provided to Bank with five (5) days of that filing;
(ii) a Non-Default Certificate in the form prescribed on Exhibit
"E" attached hereto and made a part hereof; and (iii) a Borrowing Base
Certificate; and, (c) within forty-five (45) days after the end of each fiscal
quarter, rent rolls and operating statements related to the properties described
in the CBL Mortgage; (d) simultaneously with the inclusion of Net Operating
Income (loss) from Newly Acquired Property in any financial calculation provided
for in this Loan Agreement, certification, in a form acceptable to Bank, of the
purchase price for such Newly Acquired Property and a current rent roll and a
current income and expense statement, similar to those described above, not
audited but certified by the Chief Financial Officer or Controller of Borrower
and Parent, as the case may be, such rent roll and statement of income and
expense to be for the twelve (12) month period, if available, used in any such
calculation and/or to also be for the period from the beginning of said year to
the end of such quarter, as the case may be; (e) and in any event within one
hundred twenty (120) days after the end of each fiscal year of Parent, an
unqualified audit as of the close of such fiscal year of Parent, including a
consolidated balance sheet and consolidated statements of operations and
consolidated statements of cash flows together with the unqualified audit report
and opinion of Deloitte & Touche, LP, Certified Public Accountant, or other
independent Certified Public Accountant which is widely recognized and of good
national repute or which is otherwise acceptable to Bank, showing the financial
condition of Parent at the close of such year and the results of operations
during such year provided however, if
Parent files a Form 10-K (or its equivalent) with the SEC then such financial
statements shall be provided to Bank within five (5) days of that filing; (f) ,
if requested by Bank and on an annual basis, Borrower’s cash flow budgets for
the following four (4) fiscal quarters; and (g) such other financial information
as Bank may reasonably require.
27
6.6 Additional
Information. Furnish such other information regarding the
operations, business affairs and financial condition of Borrower and all Related
Entities as Bank may reasonably request, including but not limited to written
confirmation of requests for loan advances, true and exact copies of its books
of account and tax returns, and all information furnished to the owners of its
partnership interests, or any governmental authority, and permit the copying of
the same, and Bank agrees that such information shall be maintained in strict
confidence unless it is publicly available and except that it may be disclosed
to any participants in the Loan and their counsel and Bank's
counsel. Provided, however, Borrower shall not be required to divulge
the terms of other financing arrangements with other lending institutions if and
to the extent Borrower is prohibited by contractual agreement with such lending
institutions from disclosing such information with the exception that Borrower
shall promptly notify Bank in writing of all defaults, if any, which exist
beyond any applicable cure periods and the nature thereof, which occur in
connection with such financing arrangements and which defaults or defaults would
constitute an Event of Default hereunder. Borrower shall not enter
into any such contractual arrangement whereby Borrower is prohibited from
disclosing such financial arrangements, without providing Bank with written
notice of the nature of such prohibitions. In addition, Borrower
shall not enter into any such arrangement while any Event of Default hereunder
exists beyond any applicable cure periods.
6.7 Right of
Inspection. Permit any person designated by Bank, at Bank's
expense, to visit and inspect any of the properties, books and financial reports
of Borrower and all Related Entities and to discuss its affairs, finances and
accounts with its principal officers, at all such reasonable times and as often
as a Bank may reasonably request provided that such inspection shall not
unreasonably interfere with the operation and conduct of Borrower's or any
Related Entity's properties and business affairs and provided further that such
person shall disclose such information only to Bank, Bank's appraisers and
examiners as required by banking laws, rules and regulations.
6.8 Environmental
Laws. Maintain at all times all property described in the CBL
Mortgage in compliance with all applicable Environmental Laws, and immediately
notify Bank of any notice, action, lien or other similar action alleging either
the location of any Hazardous Substances or the violation of any Environmental
Laws with respect to any of such properties.
6.9 Notice of
Adverse Change in Assets. At the time of Borrower's and/or
Lake Mall's first knowledge or notice, immediately notify Bank of any
information that may adversely affect in any material manner the properties of
Borrower and/or any Related Entity which are subject to any CBL
Mortgage.
6.10 Appraisals. Upon
Bank's request, but no more frequently than once per every twelve (12) month
period, allow appraisers employed by Bank to make updated reappraisals of the
property or properties described in the CBL Mortgage, at Borrower's
expense.
6.11 Intentionally
Deleted.
6.12 Notice of
Event of Default. As soon as practicable, and in any event
within two (2) Business Days after a Senior Officer of Borrower or any
Subsidiary becomes aware of the existence of any condition or event which
constitutes a default or Event of Default, Borrower
28
6.13 REIT. Parent
shall at all times maintain its status as a "real estate investment trust" under
the Internal Revenue Code and shall at all times remain a New York Stock
Exchange-listed or AMEX–listed company.
6.14 Ownership. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(or members of their immediate family, or any or trust formed for their benefit,
or a corporation in which they own the majority of the voting stock) shall own
directly or indirectly at least a combined ten percent (10%) of the voting stock
of Parent and operating units of Borrower, except and only to the extent diluted
by additional equity offerings or similar transactions.
SECTION
7: NEGATIVE
COVENANTS OF BORROWER
Borrower
covenants and agrees that at all times from and after the Closing Date, unless
Bank shall otherwise consent in writing, such consent to be at the discretion of
Bank, Borrower will not, and will not allow any Subsidiary or Related Entity, to
either directly or indirectly:
7.1 Minimum
Tangible Net Worth. Permit Tangible Net Worth at any
time to be less than (i) $2,300,000,000.00 plus (ii) 50% of the Net Proceeds of
all Equity Issuances effected at any time after the Agreement Date by Parent,
Borrower or any Subsidiaries to any Person other than Parent or any of its
Subsidiaries. This shall be measured quarterly.
7.2 Ratio of
Total Liabilities to Gross Asset Value. Permit the ratio of
(i) Total Liabilities of Parent, Borrower and its Subsidiaries determined
on a consolidated basis to (ii) Gross Asset Value of Parent, Borrower and
any Subsidiaries determined on a consolidated basis, to exceed 0.650 to 1.00 at
any time. This shall be measured quarterly.
7.3 Ratio of
EBITDA to Interest Expense. Permit the ratio of (i) EBITDA of
Parent, Borrower and the Subsidiaries determined on a consolidated basis for the
four (4) fiscal quarters most recently ending to (ii) Interest Expense of Parent
and its Subsidiaries determined on a consolidated basis for such period, to be
less than 1.750 to 1.00. This shall be measured
quarterly.
7.4 Ratio of
EBITDA to Debt Service. Permit the ratio of (i)
EBITDA of Parent, Borrower and the Subsidiaries determined on a consolidated
basis [for the four (4) fiscal quarters most recently ending prior to the
calculation] to (ii) Debt Service of Parent, Borrower and the Subsidiaries
determined on a consolidated basis for such period, to be less than 1.550 to
1.00. This shall be measured quarterly.
7.5 Indebtedness. Incur,
create, assume or permit to exist any indebtedness or liability, secured by any
of the properties described in the CBL Mortgage, except, with respect to
Borrower only, for indebtedness, which is subordinate in all respects to the
indebtedness
29
7.6 Mortgages,
Liens, Etc. Create, assume or suffer to exist any mortgage,
pledge, lien, charge or other encumbrance of any nature whatsoever on any of the
properties subject to the CBL Mortgage except:
(a) Liens in
favor of Bank securing payment of the Note;
(b) Existing
liens securing indebtednesses permitted under Section 7.5 above;
(c) Permitted
Encumbrances (as defined at Section 1); and
(d) Liens
securing indebtedness permitted under Section 7.5 above.
7.7 Sale of
Assets. Sell, lease, convert, transfer or dispose of all or a
substantial part of its assets for less than book value or for less than fair
market value, or, sell, lease, convert, transfer or dispose of all or a
substantial part of its assets, without Bank's prior written consent, if GAAP
book value or fair market value exceeds 20% of the GAAP book value of all of its
assets at that time. In other words, Borrower may sell its assets
without Bank's consent so long as such sale is not more than 20% of the book
value of all of its assets and only so long as such sale does not cause Borrower
to be in violation of any covenant in this Loan Agreement.
7.8 Consolidation
or Merger; Acquisition of Assets. Enter into any transaction of merger or
consolidation, acquire any other business or corporation, or acquire all or
substantially all of the property or assets of any other Person in excess of
$500,000,000.00 unless: (a) Borrower and/or its general partner shall be the
surviving entities or the transaction or acquisition is permitted by and
effected in accordance with the provisions of Section 7.12(b); and (b) unless
(i) no Event of Default exists; and (ii) Borrower has delivered to Bank at least
thirty (30) days the Agent 30 days prior to such acquisition all information
related to the acquisition requested by Bank at least thirty (30) days and a
compliance certificate, calculated on a pro forma basis, evidencing continued
compliance with the financial covenants contained in this Loan Agreement after
accounting for the proposed acquisition.
7.9 Partnership
Distributions and Other Restricted Payments. If an Event of
Default exists or would exist following the making of a Restricted Payment,
Parent, Borrower and any Related Entity will not declare or make, or permit any
other Subsidiary to declare or make, any Restricted Payment except that (i)
Parent may declare or make cash distributions to its shareholders during any
fiscal year in an aggregate amount not to exceed the minimum amount necessary
for Parent to maintain its status as a REIT, to remain in compliance with this
Loan Agreement and Section 8.10 of the Credit Agreement; and (ii) Parent may
cause Borrower (directly or indirectly through any intermediate Subsidiaries) to
make cash distributions to Parent and to other limited partners of Borrower, and
Parent may cause other Subsidiaries of Parent to make cash distributions to
Parent and to other holders of Equity Interests in such Subsidiaries, in each
case (x) in an aggregate amount not to exceed the amount of cash distributions
that Parent is permitted to declare or distribute under the immediately
preceding clause (i) and (y) on a pro rata
30
7.10 Loans to
Officers and Employees. Permit or allow loans to officers and
employees of Borrower or any Related Entity or holders of partnership interests
in Borrower to exceed $500,000.00 in any one instance or $2,000,000.00 in the
aggregate, provided that nothing in the foregoing shall be deemed to limit loans
made in the ordinary course of business to CBL & Associates Management,
Inc.
7.11 Limitations
on Actions Against Bank and Participants. Take any action
against:
(a) Bank, if
any Participant fails or refuses to fund pursuant to the terms of the
Participation Agreement to Bank for the benefit of Borrower, such Participant's
Proportionate Share of the amount Bank is obligated to advance hereunder and
such failure or refusal has not been caused by Bank's breach of this Loan
Agreement or the Participation Agreement; or
(b) any
Participant, if Bank fails or refuses to fund for the account of Borrower any
Participant's Proportionate Share of the amount Bank is obligated to advance
hereunder, to the extent such Participant's Proportionate Share has been
received by Bank; or
(c) any
Participant, if such Participant fails or refuses to fund to Bank for the
benefit of Borrower, such Participant’s Proportionate Share of the amount Bank
is obligated to advance hereunder and such failure or refusal is not a breach of
the Participation Agreement; or
(d) any
Participant, if Bank fails or refuses to fund for the account of Borrower Bank's
Proportionate Share. Borrower's and Lake Mall's cause of action under
this Loan Agreement, if any, for failure to fund being directly against the
lender which fails or refuses to fund, and then only if such failure or refusal
to fund would constitute a breach of this Loan Agreement or, with respect to the
Participants, the Participation Agreement.
7.12 Investment
Concentration/Permitted Investments. Not make, nor permit
Parent or any of its Subsidiaries to, make an Investment in or otherwise own the
following items which would cause the aggregate value of such holdings (for
purposes of this Section 7.12 the value of the holdings described in items (a)
through (e) shall be calculated in accordance with GAAP) of Borrower and/or
Subsidiaries and/or Parent to exceed at any time ( to be measured quarterly)
either an aggregate thirty five percent (35%) of Gross Asset Values or the
specific Gross Asset Values noted below:
31
(a) unimproved
real estate [for purposes of this clause (a) unimproved real estate shall not
include (i) raw land subject to a ground lease under which Borrower or a
Subsidiary is the lessor and a Person not an Affiliate is the lessee; (ii)
Properties under development; (iii) land subject to a binding contract of sale
under which Borrower or one of its Subsidiaries is the seller and the buyer is
not an Affiliate of Borrower and (iv) out-parcels held for lease or sale at
Properties which are either completed or where development has commenced] shall
not exceed ten percent (10%);
(b) developed
real estate used primarily for non-retail purposes [other than the real estate
located at CBL Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and
the new office building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇] shall not exceed ten percent (10%);
(c) Investments
(which shall be valued at book value determined in accordance with GAAP) in
Unconsolidated Affiliates of Borrower or Parent shall not exceed twenty percent
(20%);
(d) Investments
[which shall be valued at the lower of cost or market value, which shall also be
limited to ten percent (10%)] in Persons that are neither Subsidiaries nor
Unconsolidated Affiliates of Borrower or Parent [excluding publicly traded stock
of a real estate company in which Borrower is acquiring a controlling interest
which shall be limited to ten percent (10%) with any excess applied to the
overall percentage limitation of this subsection (d)]; and
(e) Mortgages
in favor of Borrower or Parent (other than (i) Mortgages securing Indebtedness
owed to Borrower or any Subsidiary on September 30, 2002, which shall also be
limited to ten percent (10%).
7.13 Limitation
on Amendment to Organizational Documents. Not change their
respective Articles of formation, bylaws, partnership agreements or other
organizational documents in any respect which would have a material adverse
effect (without the prior written consent of the Requisite Lenders) except as
required by law or applicable tax requirements.
7.14 Ratio of
EBITDA to Total Indebtedness. Permit the percentage of (i)
EBITDA of Parent, Borrower and the Subsidiaries determined on a consolidated
basis for the four (4) fiscal quarters most recently ending to (ii) total
Indebtedness on a consolidated basis for such period, to be less than eleven
percent (11%). This shall be measured quarterly.
SECTION
8: EVENTS
OF DEFAULT
An "Event
of Default" shall exist if any of the following shall occur:
8.1 Payment
of Principal, Interest to Bank. Borrower defaults in the
payment as and when due of principal or interest on any Note or any fees due
under this Loan Agreement which default shall continue for more than ten (10)
days following mailing of notice from Bank to Borrower thereof; or Borrower
defaults in the payment when due of any other Recourse
32
8.2 Payment
of Obligations to Others. Borrower or any Related Entity
defaults in the payment as and when due of any other Recourse Indebtedness or
obligation for borrowed money owed to a lender other than Bank or to Bank
unrelated to the Loan, but only if the effect of such default causes the holder
of any other Recourse Indebtedness or obligation (after expiration of any
applicable cure period) to accelerate the maturity of such indebtedness or
obligation prior to the stated maturity date of such indebtedness or obligation;
provided however, Borrower and the Related Entity will not be considered in
default hereunder if: (a) the monetary payment default is less than One Million
Dollars ($1,000,000.00) and is not a failure to pay a regular monthly, quarterly
or other periodic installment payment of principal and/or interest or interest
only, as the case may be, on the due date [subject to any applicable grace or
cure period and specifically excluding any regularly scheduled balloon payment
not paid in full within sixty (60) days of the actual due date of the balloon
payment unless the lender has issued a notice of default with respect to such
balloon payment] or (b) such default is being contested by Borrower or the
Related Entity in good faith through appropriate proceedings reasonably
acceptable to Bank; or
8.3 Payment
of Obligations to ▇▇▇▇▇ Fargo. Borrower or any Related Entity
defaults in the payment as and when due of Indebtedness or obligation for
borrowed money owed to ▇▇▇▇▇ Fargo and such default continues beyond and
applicable grace period; or
8.4 Performance
of Obligations to Bank. (a) Borrower or any Related Entity
defaults with respect to the performance of any non-monetary obligation incurred
in connection with the Loan and such default continues for more than thirty (30)
days following mailing of notice thereof from Bank to Borrower and/or the
Related Entity, as the case may be, or, and such default shall continue for a
period of thirty (30) calendar days after the earlier of (i) the date any Senior
Officer of Borrower has actual knowledge of such failure or (ii) the date notice
of such failure has been given to Borrower and/or the Related Entity, as the
case may be, by Bank; provided, however, that if such
default is curable, in the Bank’s reasonable opinion, but requires work to be
performance, acts to be done or conditions to be remedied which, by their
nature, cannot be performed, done or remedied, as the case may be, within such
thirty (30) day period, no Event of Default shall be deemed to have occurred if
such Borrower and/or the Related Entity, as the case may be, commences the same
within such thirty (30) day period and thereafter diligently and
continuously prosecutes the same to completion, and the same is in
fact completed, no later than the date ninety (90) calendar days following the
earlier of the date such Senior Officer has actual knowledge of such failure or
the date Bank gave notice of such failure to Borrower and/or the Related Entity,
as the case may be; or (b) Borrower and/or the Related Entity, as the case may
be, defaults with respect to the performance of any other non-monetary
obligation incurred in connection with any Recourse Indebtedness for borrowed
money owed to Bank in connection with the Loan and such default continues for
more than thirty (30) days following mailing of notice thereof from Bank to
Borrower and/or the Related Entity, as the case may be, or, and such default
shall continue for a period of thirty (30) calendar days after the
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8.5 Performance
of Obligations to Others. An event of default occurs with
respect to the performance of non-monetary obligations incurred in connection
with any Recourse Indebtedness for borrowed money owed to a lender other than
Bank, provided the default has not been waived by such lender or the default has
not been cured within the applicable cure period; provided further however, if
such lender's declaration of default is being continuously and diligently
contested by Borrower and/or the Related Entity, as the case may be, in good
faith through appropriate proceedings reasonably acceptable to Bank, such
default shall not constitute a default hereunder; or
8.6 Representation
or Warranty. Any representation or warranty made by Borrower
herein, or in any report, certificate, financial statement or other writing
furnished in connection with or pursuant to this Loan Agreement shall prove to
be false, misleading or incomplete in any substantial material respect on the
date as of which made; or
8.7 Bankruptcy,
Etc. Borrower or CBL Holdings or Parent or any Related Entity
shall make a general assignment of assets for the benefit of creditors, file a
petition in bankruptcy, petition or apply to any tribunal for the appointment of
a custodian, receiver or any trustee for it or a substantial part of its assets,
or shall commence on its or their behalf any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or if
there shall have been filed any such petition or application, or any such
proceeding shall have been commenced against Borrower or CBL Holdings or Parent
or any Related Entity, in which an order for relief is entered against Borrower
or CBL Holdings or Parent which remains undismissed for a period of ninety (90)
days or more; or Borrower or CBL Holdings or Parent or any Related Entity by any
act or omission shall indicate its consent to, approval of or acquiescence in
any such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or any trustee for it or any substantial
part of any of its properties, or shall suffer any such custodianship,
receivership or trusteeship to continue undischarged for a period of ninety (90)
days or more; or
8.8 Concealment
of Property, Etc. Borrower, any Related Entity, or CBL
Holdings or Parent shall have concealed, removed, or permitted to be concealed
or removed, any part of its
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8.9 Management
Change. Active management of Borrower, CBL & Associates
Management, Inc. (the “Management Company”) and the Parent shall remain in
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; provided, however,
upon his failure to remain in active management such failure shall not be a
default hereunder if either (i) at least two (2) of the following remain active
in the management: ▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ W. A. ▇▇▇▇▇▇▇, Jr.; or (ii) within one hundred eighty
(180) days Borrower, Management Company and Parent present a management
replacement satisfactory to Bank and all participating lenders in the Loan;
or
8.10 Change in
Ownership. Parent, its affiliates, officers and key employees,
and CBL Holdings shall have through any means reduced their aggregate
partnership interest in Borrower to less than fifteen percent (15%) of the
aggregate of such partnership interests; or
8.11 Loan
Documents Terminated or Void. This Loan Agreement, any Note,
the Guaranty, or any instrument securing any Note shall, at any time after their
respective execution and delivery and for any reason, cease to be in full force
and effect or shall be declared to be null and void; or Borrower and/or any
Related Entity shall deny it has any or further liability under this Loan
Agreement, the Note, the Guaranty, or under the CBL Mortgage; or
8.12 Covenants. Borrower
or any Related Entity defaults in the performance or observance of any other
covenant, agreement or undertaking on its part to be performed or observed,
contained herein, in the CBL Mortgage or in any other instrument or document
which now or hereafter evidences or secures all or any part of the loan
indebtedness which default shall continue for more than thirty (30) days
following the mailing of notice from Bank to Borrower and/or such Related
Entity, as the case may be; provided however, and notwithstanding anything
contained in this Loan Agreement, in the CBL Mortgage or in any other instrument
or document which now or hereafter evidences or secures all or any part of the
loan indebtedness, failure to comply with a financial covenant shall not be an
Event of Default unless such failure continues for ninety (90) days after the
earlier of (i) the date any Senior Officer of Borrower or any Related Entity has
actual knowledge of such failure; or (ii) the date notice of such failure has
been given to Borrower by Bank; or
8.13 Breach of
Section 7 of this Loan Agreement. Borrower shall fail to
observe or perform its obligations to Bank, and/or any Participant under Section
7 of this Loan Agreement and such failure continues for ninety (90) calendar
days after the earlier of (i) the date any Senior Officer of Borrower has actual
knowledge of such failure or (ii) the date notice of such failure has been given
to Borrower by Bank; or
35
8.14 Placement
of Liens on Property. Borrower or any Related Entity shall,
without the prior written consent of Bank and except as permitted by Section 7.5
and 7.6 hereof, create, place or permit to be created or placed, or through any
act or failure to act, acquiesce in the placing of, or allow to remain, any
mortgage, deed of trust, pledge, lien (statutory, constitutional or
contractual), or security interest, encumbrance or charge on, or conditional
sale or other title retention agreement, regardless of whether same are
expressly subordinate to the liens of the CBL Mortgage, with respect to the
property described in any CBL Mortgage; or
8.15 Other
Indebtedness Default. Borrower, any guarantor, or any
significant Subsidiary (significance to be determined by Bank in its sole but
reasonable discretion) during any twelve (12) month period defaults on any
recourse or guaranteed indebtedness in excess of Fifty Million and No/100
Dollars ($50,000,000.00) in the aggregate.
8.16 Remedy. Upon
the occurrence of any Event of Default, as specified herein, Bank shall, at its
option, be relieved of any obligation to make further Revolving Credit Advances
under this Loan Agreement; and Bank may at its option charge interest on the
outstanding indebtedness at the Default Rate; and Bank may, at its option,
thereupon declare the entire unpaid principal balances of the Note, all interest
accrued and unpaid thereon and all other amounts payable under this Loan
Agreement to be immediately due and payable for all purposes, and may exercise
all rights and remedies available to it under the CBL Mortgage, any other
instrument or document which secures any Note, or available at law or in equity.
All such rights and remedies are cumulative and nonexclusive, and may be
exercised by Bank concurrently or sequentially, in such order as Bank may
choose.
SECTION
9: MISCELLANEOUS
9.1 Amendments. The
provisions of this Loan Agreement, any Note, the CBL Mortgage or any instrument
or document executed pursuant hereto or securing the indebtednesses may be
amended or modified only by an instrument in writing signed by the parties
hereto and thereto.
9.2 Notices. All
notices and other communications provided for hereunder shall be in writing and
shall be mailed, certified mail, return receipt requested, or delivered, if to
Borrower , to it at c/o CBL & Associates Properties, Inc., CBL Center, Suite
500, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: President, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.; if to
Bank, to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and to Construction Loan Management, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or as to any such person at
such other address as shall be designated by such person in a written notice to
the other parties hereto complying as to delivery with the terms of this Section
9.2. All such notices and other communications shall be effective (i)
if mailed, when received or three (3) Business Days after mailing, whichever is
earlier; or (ii) if delivered, upon delivery and receipt of an executed
acknowledgment of receipt by the party to whom delivery is
made. Notwithstanding the foregoing, Bank shall not be required to
send a copy of any notice or communication to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. but Bank will
use good faith efforts to copy ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. on any such notices or
communications via regular mail, fax or email.
36
9.3 No
Waiver, Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of Bank, any right, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. Waiver of any right, power, or privilege hereunder or
under any instrument or document now or hereafter securing the indebtedness
evidenced hereby or under any guaranty at any time given with respect thereto is
a waiver only as to the specified item. The rights and remedies
herein provided are cumulative and not exclusive of any rights or remedies
provided by law.
9.4 Indemnification. Borrower
agrees to indemnify Bank from and against any and all claims, losses and
liabilities, including, without limitation, reasonable attorneys' fees, growing
out of or resulting from this Loan Agreement (including, without limitation,
enforcement of this Loan Agreement), except claims, losses or liabilities
resulting solely and directly from Bank's gross negligence or willful misconduct
or from Bank's violation of applicable banking rules and
regulations. The indemnification provided for in this Section shall
survive the payment in full of the loan. Borrower agrees to indemnify
Bank and the Participants and to hold Bank and the Participants harmless from
any loss or expense that such Bank or the Participants may sustain or incur as a
consequence of a default by Borrower in making any prepayment of or conversion
from an advance bearing interest at the LIBOR Rate after Borrower has given a
notice thereof in accordance with the provisions of this Loan
Agreement.
9.5 Survival
of Agreements. All agreements, representations and warranties
made herein shall survive the delivery of the Note. This Loan
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and assigns, except that Borrower shall not have
the right to assign its rights hereunder or any interest therein.
9.6 Governing
Law. This Loan Agreement shall be governed and construed in
accordance with the laws of the State of Tennessee; except (a) that the
provisions hereof which relate to the payment of interest shall be governed by
(i) the laws of the United States or, (ii) the laws of the State of Tennessee,
whichever permits Bank to charge the higher rate, as more particularly set out
in the Note, and (b) to the extent that the Liens in favor of Bank, the
perfection thereof, and the rights and remedies of Bank with respect thereto,
shall, under mandatory provisions of law, be governed by the laws of a state
other than Tennessee.
9.7 Execution
in Counterparts. This Loan Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument.
9.8 Terminology;
Section Headings. All personal pronouns used in this Loan
Agreement whether used in the masculine, feminine, or neuter gender, shall
include all other genders; the singular shall include the plural, and vice
versa. Section headings are for convenience only and neither limit
nor amplify the provisions of this Loan Agreement.
9.9 Enforceability
of Agreement. Should any one or more of the provisions of this
Loan Agreement be determined to be illegal or unenforceable, all other
provisions, nevertheless, shall remain effective and binding on the parties
hereto.
37
9.10 Interest
Limitations.
(a) The Loan
and the Note evidencing the Loan, including any renewals or extensions thereof,
may provide for the payment of any interest rate (i) permissible at the time the
contract to make the Loan is executed, (ii) permissible at the time the Loan is
made or any advance thereunder is made, or (iii) permissible at the time of any
renewal or extension of the loan or any Note.
(b) It is the
intention of Bank and Borrower to comply strictly with applicable usury laws;
and, accordingly, in no event and upon no contingency shall Bank ever be
entitled to receive, collect, or apply as interest any interest, fees, charges
or other payments equivalent to interest, in excess of the maximum rate which
Bank may lawfully charge under applicable statutes and laws from time to time in
effect; and in the event that the holder of the Note ever receives, collects, or
applies as interest any such excess, such amount which, but for this provision,
would be excessive interest, shall be applied to the reduction of the principal
amount of the indebtedness thereby evidenced; and if the principal amount of the
indebtedness evidenced thereby, and all lawful interest thereon, is paid in
full, any remaining excess shall forthwith be paid to Borrower or other party
lawfully entitled thereto. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the highest rate which
Bank may lawfully charge under applicable law from time to time in effect,
Borrower and Bank shall, to the maximum extent permitted under applicable law,
characterize any non-principal payment as a reasonable loan charge, rather than
as interest. Any provision hereof, or of any other agreement between
Bank and Borrower, that operates to bind, obligate, or compel Borrower to pay
interest in excess of such maximum rate shall be construed to require the
payment of the maximum rate only. The provisions of this paragraph
shall be given precedence over any other provision contained herein or in any
other agreement between Bank and Borrower that is in conflict with the
provisions of this paragraph.
The Note
shall be governed and construed according to the statutes and laws of the State
of Tennessee from time to time in effect, except to the extent that Section 85
of Title 12 of the United States Code (or other applicable federal statue) may
permit the charging of a higher rate of interest than applicable state law, in
which event such applicable federal statute, as amended and supplemented from
time to time shall govern and control the maximum rate of interest permitted to
be charged hereunder; it being intended that, as to the maximum rate of interest
which may be charged, received, and collected hereunder, those applicable
statutes and laws, whether state or federal, from time to time in effect, which
permit the charging of a higher rate of interest, shall govern and control;
provided, always, however, that in no event and under no circumstances shall
Borrower be liable for the payment of interest in excess of the maximum rate
permitted by such applicable law, from time to time in effect.
9.11 Non-Control. In
no event shall Bank's rights hereunder be deemed to indicate that Bank is in
control of the business, management or properties of Borrower and/or any Related
Entity or has power over the daily management functions and operating decisions
made by Borrower and/or any Related Entity.
9.12 Loan
Review; Extensions of Termination Date; Continuing Security.
38
(a) At least
ninety (90) days prior to June 1, 2011, Borrower shall notify Bank in writing
whether it desires to extend the existing Termination Date of Revolving Credit
Loan for an additional twelve (12) months beyond the existing Termination Date
of Revolving Credit Loan.
(b) The
specific Termination Date of Revolving Credit Loan mentioned in Article One may
be extended for an additional period of one (1) year. On or before
June 1, 2011, if the Loan remains unpaid, Bank shall review the performance of
the Loan. If Bank deems performance of the Loan acceptable, it will
renew the Loan for one (1) year from the then existing Termination Date of
Revolving Credit Loan. If Bank renews the Loan at anytime or from
time to time prior to June 1, 2011, Bank, and Borrower agree the Loan shall be
renewed with covenants as contained in Sections 7 of this Loan Agreement and
such other covenants, terms and conditions as may be mutually agreed upon by
Borrower and Bank. If Bank deems performance of the Loan not
acceptable, Bank shall not be obligated to extend the Termination Date of
Revolving Credit Loan. Assessment of performance and the decision
whether to extend the Termination Date of Revolving Credit Loan (from June 1,
2012 to June 1, 2013) shall be solely within Bank's discretion. Bank
will not deem the performance of the Loan acceptable unless and until Borrower
provides to Bank, among other things, updated title commitments with respect to
all properties covered by any CBL Mortgage, which title commitments must be in
form and substance acceptable to Bank and must contain no exceptions
unacceptable to Bank. Bank shall notify Borrower of the results of
its review of the Loan no later than eleven (11) months prior to the then
effective Termination Date of the Revolving Credit Loan. If Bank
elects not to renew the Loan, Bank shall not perform or cause to be performed,
except at Bank's expense unless an Event of Default has occurred, any
inspections, appraisals, surveys or similar items between: (a) the
date notice thereof is given Borrower or the Termination Date of Revolving
Credit Loan, whichever first occurs, and (b) the date the Note is to be repaid
as provided therein. In the event the Termination Date of
Revolving Credit Loan is not extended, Borrower may elect either to: (i)
continue to use the Loan evidenced by the Note subject to the terms and
provisions of this Loan Agreement in which event the principal balance due,
together with all accrued interest, shall be payable in full at the Termination
Date of Revolving Credit Loan existing at the time Bank elects not to extend the
then existing Termination Date of Revolving Credit Loan; or (ii) cap the Loan at
its then existing outstanding principal balance and continue to pay interest
only monthly for a six (6) month period, such interest payments being due and
payable on the first (1st) day
of each month thereafter, then at the conclusion of the six (6) month period
amortize the then outstanding principal balance of the loan over an eighteen
(18) month period with the principal being due in equal quarterly installments
on the first (1st) day
of each quarter thereafter with accrued interest being payable monthly on the
first (1st) day
of the month, with all principal and accrued interest being due and payable in
full at the end of the eighteen (18) month period. Anything contained
in the foregoing to the contrary notwithstanding, upon any such extension,
Borrower agrees to pay to Bank (in addition to the commitment fees it has
previously paid under this Loan Agreement) an extension fee of Two Hundred Sixty
Two Thousand Five Hundred and NO/100 Dollars ($262,500.00).
(c) Upon the specific
Termination Date of Revolving Credit Loan so fixed in Article One, or in the
event of the extension of this Loan Agreement to a subsequent Termination Date
of Revolving Credit Loan (when no effective extension is in force), the
Revolving Credit Loan
39
and all
other extensions of credit (unless sooner declared to be due and payable by Bank
pursuant to the provisions hereof), and subject to Borrower's election as set
forth in subparagraph (a) above, shall become due and payable for all
purposes. Until all such indebtednesses, liabilities and obligations
secured by the CBL Mortgage are satisfied in full, such termination shall not
affect the security interest granted to Bank pursuant to the CBL Mortgage, nor
the duties, covenants, and obligations of Borrower therein and in this Loan
Agreement; and all of such duties, covenants and obligations shall remain in
full force and effect until the Revolving Credit Loan and all obligations under
this Loan Agreement have been fully paid and satisfied in all
respects.
9.13 Fees and
Expenses. Borrower agrees to pay, or reimburse Bank for, the
reasonable actual third party out-of-pocket expenses, including counsel fees and
fees of any accountants, inspectors or other similar experts, as deemed
necessary by Bank, incurred by Bank in connection with the development,
preparation, execution, amendment, recording, (excluding the salary and expenses
of Bank's employees and Bank's normal and usual overhead expenses) or
enforcement of, or the preservation of any rights under this Loan Agreement, the
Note and any instrument or document now or hereafter securing the and Revolving
Credit Loan indebtednesses.
9.14 Time of
Essence. Time is of the essence of this Loan Agreement, the
Note and the other instruments and documents executed and delivered in
connection herewith.
9.15 Compromises,
Releases, Etc. Bank is hereby authorized from time to time,
without notice to anyone, to make any sales, pledges, surrenders, compromises,
settlements, releases, indulgences, alterations, substitutions, exchanges,
changes in, modifications, or other dispositions including, without limitation,
cancellations, of all or any part of the Loan indebtedness, or of any contract
or instrument evidencing any thereof, or of any security or collateral therefor,
and/or to take any security for or guaranties upon any of said indebtedness; and
the liability of any guarantor, if any, shall not be in any manner affected,
diminished, or impaired thereby, or by any lack of diligence, failure, neglect,
or omission on the part of Bank to make any demand or protest, or give any
notice of dishonor or default, or to realize upon or protect any of said
indebtedness or any collateral or security therefor. Bank shall have
the right to apply such payments and credits first to the payment of all its
expenses, including costs and reasonable attorneys' fees, then to interest due
under the Note and then to principal due under the Note. Bank shall
be under no obligation, at any time, to first resort to, make demand on, file a
claim against, or exhaust its remedies against Borrower or its property or
estate, or to resort to or exhaust its remedies against any collateral,
security, property, liens, or other rights whatsoever. Upon the
occurrence of an Event of Default, it is expressly agreed that Bank may at any
time make demand for payment on, or bring suit against, Borrower and any
guarantor, jointly or severally and may compromise with any of them for such
sums or on such terms as it may see fit, and without notice or consent, the same
being hereby expressly waived.
9.16 Joinder
of Parent. Parent joins herein for the purpose of
acknowledging and consenting to the terms and provisions hereof and agreeing to
those which specifically apply to the Parent.
40
9.17 Bank's
Consent. Except as otherwise expressly provided herein, in any
instance hereunder where Bank's approval or consent is required or the exercise
of its judgment is required, the granting or denial of such approval or consent
and the exercise of such judgment shall be within the sole but reasonable
discretion of Bank, and Bank shall not, for any reason or to any extent, be
required to grant such approval or consent or exercise such judgment provided
that Bank shall proceed at all times in good faith and in a commercially
reasonable manner.
9.18 Venue of
Actions. As an integral part of the consideration for the
making of the loan, it is expressly understood and agreed that no suit or action
shall be commenced by Borrower, Related Entities, CBL Holdings, Parent, by any
guarantor, or by any successor, personal representative or assignee of any of
them, with respect to the loan contemplated hereby, or with respect to this Loan
Agreement or any other document or instrument which now or hereafter evidences
or secures all or any part of the loan indebtedness, other than in a state court
of competent jurisdiction in and for the County of the State in which the
principal place of business of Bank is situated, or in the United States
District Court for the District in which the principal place of business of Bank
is situated, and not elsewhere. Nothing in this paragraph contained
shall prohibit Bank from instituting suit in any court of competent jurisdiction
for the enforcement of its rights hereunder or in any other document or
instrument which evidences or secures the loan indebtedness.
9.19 Waiver of
Right to Trial By Jury. EACH PARTY TO THIS LOAN AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (a) ARISING UNDER THIS LOAN AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS LOAN AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS LOAN AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
9.20 Conflict. In
the event of any conflict between the provisions hereof and any other loan
document during the continuance of this Loan Agreement the provisions of this
Loan Agreement shall control.
9.21 Participation
Agreement. Borrower acknowledges that the Participation
Agreement exists and that Bank is obligated, subject to the terms and conditions
hereof, to fund One Hundred Five Million Dollars ($105,000,000.00) to Borrower
but that of that amount, Compass Bank, Regions Bank, Branch Banking and Trust
Company and Manufacturers and Traders Trust Company are obligated, subject to
the terms and conditions of the Participation Agreement, to fund as follows:
Compass is to fund Fifteen Million and NO/100 Dollars
41
9.22 USA
Patriot Act Notice and Compliance. The USA Patriot Act of 2001
(Public Law 107-56) and federal regulations issued with respect thereto require
all financial institutions to obtain, verify and record certain information that
identifies individuals or business entities which open an “account” with such
financial institution. Consequently, Bank may from time to time
request, and Borrower shall provide to Bank, Borrower’s, Parent’s, each
guarantor’s and each other Loan party’s name, address, tax identification number
and/or such other identification information as shall be necessary for Bank to
comply with federal law. An “account” for this purpose may include,
without limitation, a deposit account, cash management service, a transaction or
asset account, a credit account, a loan or other extension of credit, and/or
other financial services product.
9.23 Non-Recourse. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS LOAN AGREEMENT TO THE CONTRARY, BANK EXPRESSLY AGREES
THAT PAYMENT OF ALL PRINCIPAL, INTEREST AND OTHER AMOUNTS (INCLUDING COSTS AND
EXPENSES) DUE AND PERFORMANCE OF ALL OTHER OBLIGATIONS AND LIABILITIES UNDER
THIS LOAN AGREEMENT BY CBL HOLDINGS I, INC., IN ITS CAPACITY AS THE GENERAL
PARTNER OF BORROWER, SHALL BE NON-RECOURSE AS TO SUCH GENERAL
PARTNER.
(Signatures
on Next Page)
42
IN
WITNESS WHEREOF, Borrower, Bank, and CBL Holdings, and Parent (pursuant to
Section 9.16 hereof), have caused this Loan Agreement to be executed by their
duly authorized officers, managers and/or partners, all as of the day and year
first above written.
CBL &
ASSOCIATES LIMITED PARTNERSHIP
BY: CBL
HOLDINGS I, INC.,
Its Sole General Partner
By: /s/ ▇▇▇▇▇▇▇
W.A. ▇▇▇▇▇▇▇,
Jr.
Name: ▇▇▇▇▇▇▇
W. A. ▇▇▇▇▇▇▇, Jr.
Title: Senior
Vice President-Real Estate Finance
BORROWER
CBL &
ASSOCIATES PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇
W.A. ▇▇▇▇▇▇▇,
Jr.
Name: ▇▇▇▇▇▇▇
W. A. ▇▇▇▇▇▇▇, Jr.
Title: Senior
Vice President-Real Estate Finance
PARENT
FIRST TENNESSEE BANK
NATIONAL
ASSOCIATION
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice
President
BANK
EXHIBIT
"A"
Real
property known as:
(a)
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(b) The
Lakes Mall, Fruitport, Michigan
(c)
College Square, Morristown, Tennessee
(d)
Dick’s Sporting Goods at Citadel Mall, Charleston, S.C.
(e) Cinemark, Olive Garden
out parcel, Kool Smiles
Dental (NCDR, LLC) has a lease for 9,175 SF, International Bank
of Commerce leases 1,500 SF; LOI from ▇▇▇▇▇ E Cheese for the 18,650 SF of the
former Circuit City Space at Mall Del Norte,
Laredo,
Texas
(f) The
Shoppes at ▇▇▇▇▇▇▇▇ Place, Chattanooga, Tennessee
all as
more particularly described in the individual deeds of trust, deeds to secure
debt and/or mortgages applicable to the above described properties.
A-1
EXHIBIT
"B"
PERMITTED
ENCUMBRANCES
1. As
described in the Mortgages.
B-1
EXHIBIT
"C"
NOTE
C-1
EXHIBIT
"D"
CHECKLIST FOR
CLOSING
D-1
EXHIBIT
"E"
NON-DEFAULT
CERTIFICATE
For
Fiscal Year Ended _______________, 20__.
For
Fiscal Quarter Ended _______________, 20__.
The
undersigned, a duly authorized officer of CBL & Associates Limited
Partnership, a Delaware limited partnership [referred to as "Borrower" in that
certain Amended and Restated Loan Agreement (the "Loan Agreement") dated as of
July 29, 2010, between Borrower and First Tennessee Bank National Association
("Bank")], certifies to said Bank, in accordance with the terms and provisions
of said Loan Agreement, as follows:
1. All of
the representations and warranties set forth in the Loan Agreement are and
remain true and correct on and as of the date of this Certificate with the same
effect as though such representations and warranties had been made on and as of
this date except as otherwise previously disclosed to Bank in
writing.
2. As of the
date hereof, Borrower has no knowledge of any Event of Default, as specified in
Section 8 of the Loan Agreement, nor any event which, upon notice, lapse of time
or both, would constitute an Event of Default, has occurred or is
continuing.
3. As of the
date hereof, Borrower is in full compliance with all financial covenants
contained in the Loan Agreement (and copies of all calculations related to the
financial covenants are attached), and the following are true, accurate and
complete:
|
(a)
|
The
Tangible Net Worth (as defined in the Loan Agreement) is
$__________________________ as of ________________,
20___.
|
|
(b)
|
The
Total Liabilities to Gross Asset Value is _____ to _____ as of
_____________________, 20__.
|
|
(c)
|
The
ratio of EBITDA to Debt Service Debt is ____ to ____ as of ______________,
20__.
|
|
(d)
|
The
ratio of EBITDA to Interest Expense is ____ to ____ as of
_____________________, 20_____.
|
DATED
this ______ day of ______________________, 20____.
CBL &
ASSOCIATES LIMITED PARTNERSHIP
BY: CBL
HOLDINGS I, INC.,
Its Sole General Partner
By:
____________________________________
Name:
▇▇▇▇▇▇▇ W. A. ▇▇▇▇▇▇▇, Jr.
Title:
Senior Vice President-Real Estate Finance
E-1
EXHIBIT
"F"
LITIGATION
Disclosure Pursuant to
Paragraph 5.5
See
Exhibit "F-1" attached for description of all litigation which could have a
material adverse effect on Borrower.
ENVIRONMENTAL
MATTERS
Disclosure pursuant to
Paragraph 5.11
None.
F-1
EXHIBIT
“F-1”
LITIGATION WHICH COULD HAVE
A MATERIAL
EFFECT ON BORROWER OR ANY
RELATED ENTITY
Mechanic’s
liens in excess of $800,000.00 have been filed with respect to construction of a
tenant’s space at The Lakes Mall in Fruitport, Michigan.
F-2
JOINDER IN AMENDED AND
RESTATED LOAN AGREEMENT
COMPASS
BANK as "Participant" under the terms of that certain Amended and Restated Loan
Agreement (the "Loan Agreement") dated as of July 29, 2010, between and among
First Tennessee Bank National Association and CBL & Associates Limited
Partnership, in consideration of the mutual agreements of the parties thereto
and of the undersigned therein contained, hereby joins as a party to said Loan
Agreement and agrees to perform all obligations to be performed on its part
thereunder.
IN
WITNESS WHEREOF, the undersigned has caused this Joinder in Amended and Restated
Loan Agreement to be executed by its duly authorized officer as of July 29,
2010.
COMPASS
BANK
By: /s/ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, Senior Vice
President
1
JOINDER IN AMENDED AND
RESTATED LOAN AGREEMENT
REGIONS
BANK as "Participant" under the terms of that certain Amended and Restated Loan
Agreement (the "Loan Agreement") dated as of July 29, 2010, between and among
First Tennessee Bank National Association and CBL & Associates Limited
Partnership, in consideration of the mutual agreements of the parties thereto
and of the undersigned therein contained, hereby joins as a party to said Loan
Agreement and agrees to perform all obligations to be performed on its part
thereunder.
IN
WITNESS WHEREOF, the undersigned has caused this Joinder in Amended and Restated
Loan Agreement to be executed by its duly authorized officer effective as of
July 29, 2010.
REGIONS
BANK
By: /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Executive
Vice President
1
JOINDER IN AMENDED AND
RESTATED LOAN AGREEMENT
BRANCH
BANKING AND TRUST COMPANY as "Participant" under the terms of that certain
Amended and Restated Loan Agreement (the "Loan Agreement") dated as of July 29,
2010, between and among First Tennessee Bank National Association and CBL &
Associates Limited Partnership, in consideration of the mutual agreements of the
parties thereto and of the undersigned therein contained, hereby joins as a
party to said Loan Agreement and agrees to perform all obligations to be
performed on its part thereunder.
IN
WITNESS WHEREOF, the undersigned has caused this Joinder in Amended and Restated
Loan Agreement to be executed by its duly authorized officer as of July 29,
2010.
BRANCH
BANKING AND TRUST COMPANY
By: /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior
Vice President
1
JOINDER IN AMENDED AND
RESTATED LOAN AGREEMENT
MANUFACTURERS
AND TRADERS TRUST COMPANY as "Participant" under the terms of that certain
Amended and Restated Loan Agreement (the "Loan Agreement") dated as of July 29,
2010, between and among First Tennessee Bank National Association and CBL &
Associates Limited Partnership, in consideration of the mutual agreements of the
parties thereto and of the undersigned therein contained, hereby joins as a
party to said Loan Agreement and agrees to perform all obligations to be
performed on its part thereunder.
IN
WITNESS WHEREOF, the undersigned has caused this Joinder in Amended and Restated
Loan Agreement to be executed by its duly authorized officer as of July 29,
2010.
MANUFACTURERS
AND TRADERS TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇.
Deck
▇▇▇▇▇▇ ▇. Deck, Vice
President
1