Exhibit 10.18
REVOLVING CREDIT LOAN AGREEMENT
THIS REVOLVING CREDIT LOAN AGREEMENT ("Loan Agreement"), dated this
24th day of September, 2003, is by and between CBL & ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership, whose address is CBL Center, 0000
Xxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 (the "Borrower"),
and SOUTHTRUST BANK, an Alabama banking corporation with offices at 000 Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx Real Estate Group, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000 (the "Bank").
R E C I T A L S
Borrower has requested that the 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 principal sum of TWENTY MILLION DOLLARS ($20,000,000.00) (or, if
lesser, the Borrowing Base described herein) 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), and for general corporate purposes. The
Bank has agreed to make establish such credit facility on the terms and
conditions herein set forth.
NOW, THEREFORE, incorporating the Recitals set forth above and in
consideration of the mutual agreements herein contained, the parties agree as
follows:
Article I
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:
"Acquired Projects" means any Mall and/or Non-Mall Project (whether
alone or in a portfolio of such projects) that are acquired by the Borrower
and/or its Affiliates after the date hereof. A Mall or Non-Mall Project shall
remain characterized as an "Acquired Project" for the period of fifteen months
beginning on the first day of the month next following the month in which the
closing of the acquisition of the Acquired Project occurred. Following said
fifteen month period, the Acquired Project in question shall be deemed either a
Mall or Non-Mall Project as the case may be and shall no longer be considered an
Acquired Project.
"Adjusted Loan Amount" means the lesser of (a) an eighty-five percent
(85%) loan-to-value ratio of the Mortgaged Properties, such loan-to-value ratio
to be calculated based upon the appraised values given to the Mortgaged
Properties in current appraisals complying with the Bank's standard appraisal
requirements, or (b) the combined Net Operating Income from the Mortgaged
Properties as of each January 1, April 1, July 1 and October 1, as the case may
be, based upon the then immediately preceding twelve (12) month period, divided
by 1.15 with the resulting figure being further divided by the applicable
mortgage constant of 8.81 (as such mortgage constant may be adjusted from time
to time in Bank's reasonable judgment based upon Bank's then current permanent
1
loan underwriting criteria for comparable projects), or (c) Twenty Million
Dollars ($20,000,000).
"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.
"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.
"Borrowing Base" is the limitation on the aggregate Revolving Credit
Loan indebtedness which may be outstanding at any time during the term of this
Agreement. The Borrowing Base will be calculated each January 1, April 1, July 1
and October 1 during the term hereof. The Borrowing Base will be an amount not
to exceed the Borrower's Adjusted Loan Amount.
"Business Day" means a banking business day of the Bank.
"Capital Stock" means, as to any Person, any and all shares, interests,
warrants, participations or other equivalents (however designated) of corporate
stock of such Person.
"Capitalized Value" means the sum of the following:
(i) an amount, calculated as of any date, equal to the
quotient of (A) the sum of (I) Borrower's Funds from Operations during
the most recent quarter end (not including Funds from Operations from
Malls), annualized, plus (II) the Interest Expense (not including
interest expense from Malls) used in calculating Borrower's Funds from
Operations pursuant to clause (I) above, annualized plus (III) the
annualized base rental income from tenants which have executed leases
in Non-Mall Project and in Non-Mall Projects scheduled for completion
during the twelve month period subsequent to such date, and (B) 9%.
2
(ii) an amount, calculated as of any date, equal to the
quotient of (A) the sum of (I) Borrower's Funds from Operations during
the most recent quarter end (from Malls only), annualized, plus (II)
the Interest Expense (from Malls only) used in calculating Borrower's
Funds from Operations pursuant to clause (I) above, annualized plus
(III) the annualized base rental income from tenants which have
executed leases in Malls and in Malls schedule for completion during
the twelve month period subsequent to such date, and (B) 8%.
(iii) an amount, calculated as of the date of the closing of
any acquisition of an Acquired Project equal to the sum of (A) the
price paid by Borrower and/or its Affiliates for the Acquired
Project(s), which price paid shall include any and all cash paid, the
amount of any equity interests in CBL Properties, Inc. or share
equivalents thereof (the amount of equity interests and/or share
equivalents shall be based upon the closing price of the stock of CBL
Properties, Inc. on the date of the closing of the acquisition of the
Acquired Project) and (B) the amount of any and all recording costs,
closing costs and other expenses paid by Borrower and/or its Affiliates
to finalize the acquisition of the Acquired Project. Funds from
Operations and Interest Expense of an Acquired Project(s) shall be
excluded from the calculations set forth in (i) and (ii) above for such
time as an Acquired Project remains characterized as such.
"CBL Holdings" means CBL Holdings I, Inc., a Delaware corporation
and the sole general partner of Borrower.
"CBL Management, Inc." means CBL & Associates Management, Inc., a
Delaware corporation.
"CBL Mortgages" means, collectively, the mortgages and/or deeds of
trust with security agreements and assignments of rents and leases and related
amendments executed contemporaneously herewith by Gunbarrel Commons, LLC, a
Tennessee limited liability company with respect to the Gunbarrel Commons
Shopping Center in Xxxxxxxx County, Tennessee, and by CBL/Sunrise Commons, L.P.,
a Texas limited partnership with respect to the Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
xx Xxxxxxx Xxxxxx, Xxxxx (such mortgages covering the properties described in
Exhibit A attached hereto and made a part hereof) together with such other
affiliates of the Borrower who may hereafter execute and deliver to Bank a CBL
Mortgage as referred to in Section 4.1(e) hereof.
"CBL Properties, Inc." means CBL & Associates Properties, Inc., a
Delaware corporation and a qualified public REIT and the sole owner of CBL
Holdings, and who has guaranteed payment and performance of the Borrowers
obligations hereunder pursuant to its Guaranty Agreement of even date herewith
in favor of the Lender.
"Closing Date" means the date set out in the first paragraph of this
Loan Agreement.
"Combined" means, as to any calculation hereunder, that such
calculation shall be made on a combined basis for Borrower, CBL Properties, Inc.
and CBL Management, Inc., with each such calculation being made, (a) in respect
of Borrower, on a consolidated basis for Borrower and its Subsidiaries, (b) in
3
respect of CBL Properties, Inc., on a consolidated basis for CBL Properties,
Inc. and its Subsidiaries, and (c) in respect of CBL Management, Inc., on a
consolidated basis for CBL Management, Inc. and its Subsidiaries.
"Contingent Obligations" means, for any Person, any material
commitment, undertaking, Guarantee or material obligation constituting a
continuing liability under GAAP, but only to the extent the same are required to
be reflected on such Persons' audited financial statements.
"Debt Coverage Ratio" means, as of any date the same is calculated, the
ratio of (a) EBITDA for the fiscal quarter ending on or most recently ended
prior to such date to (b) Debt Service during such fiscal quarter, in each case
calculated on a Combined basis in accordance with GAAP.
"Debt Service" means, with respect to Borrower, CBL Properties, Inc.,
and their respective Subsidiaries for any period, the sum of (a) Interest
Expense of Borrower, CBL Properties, Inc. and their respective Subsidiaries for
such period, plus (b) regularly scheduled principal payments on Indebtedness of
Borrower, CBL Properties, Inc. and their respective Subsidiaries during such
period other than any regularly scheduled principal payment payable on any
Indebtedness which prepays such Indebtedness in full, to the extent the amount
of such final scheduled principal payment is greater than the scheduled
principal payment immediately preceding such final scheduled principal payment,
determined in each case on a Combined basis in accordance with GAAP. For
purposes of this definition, a voluntary prepayment of Indebtedness shall not
constitute a regularly scheduled principal payment even if, under the terms of
the agreement governing such Indebtedness, the notice of prepayment has the
effect of causing the amount of the prepayment to become due and payable on the
date set for such notice of such prepayment.
"EBITDA" means, for any period, the sum of (i) Net Income of Borrower,
CBL Properties, Inc. and their respective Subsidiaries for such period
(excluding equity in net earnings (or loss) of their Unconsolidated Affiliates),
plus (ii) depreciation and amortization expense and other non-cash charges of
Borrower, CBL Properties, Inc. and their respective Subsidiaries for such
period, plus (iii) interest expense of Borrower, CBL Properties, Inc. and their
respective Subsidiaries for such period, plus (iv) income tax expense in respect
of such period, plus (v) cash dividends and distributions actually received by
Borrower, CBL Properties, Inc. and their respective Subsidiaries during such
period from Unconsolidated Affiliates, plus (vi) extraordinary losses (and any
unusual losses arising in or outside the ordinary course of business of
Borrower, CBL Properties, Inc. and their respective Subsidiaries not included in
extraordinary losses determined in accordance with GAAP that have been reflected
in the determination of Net Income) for such period, minus (vii) extraordinary
gains of Borrower, CBL Properties, Inc. and their respective Subsidiaries (and
any unusual gains arising in or outside the ordinary course of business of
Borrower, CBL Properties, Inc. or such respective Subsidiaries not included in
extraordinary gains determined in accordance with GAAP that have been reflected
in the determination of Net Income) for such period, determined in each case on
a Combined basis in accordance with GAAP.
"Environmental Laws" means all applicable local, state or federal laws,
rules or regulations pertaining to environmental regulation, contamination or
4
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.
"Event of Default" has the meaning assigned to that phrase in Section
8.
"Funds from Operations" means, as to any period, an amount equal to (a)
income (or loss) from operations of Borrower, CBL Properties, Inc. and their
respective Subsidiaries for such period, plus (b) depreciation and amortization,
plus (or minus) (c) to the extent not included in clause (a) above, gain (loss)
on the sales of outparcels made in the ordinary course of business, and after
adjustments for Unconsolidated Affiliates, determined in each case on a Combined
basis in accordance with GAAP. Adjustments for Unconsolidated Affiliates will be
calculated to reflect funds from operations on the same basis.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which are to be used in making the calculations for
purposes of determining compliance with this Agreement. All calculations made
for the purposes of determining compliance with this Agreement shall (except as
may be otherwise expressly provided herein) be made by application of generally
accepted accounting principles applied on a basis consistent with those used in
preparation of the annual and quarterly financial statements of CBL Properties,
Inc. furnished to the Securities and Exchange Commission.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against losses in
respect thereof (in whole or in part), provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means and includes 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, as applied to any Person at any time, without
duplication (a) all indebtedness, obligations or other liabilities of such
Person (i) for borrowed money or evidenced by debt securities, debentures,
acceptances, notes or other similar instruments, and any accrued interest, fees
and charges relating thereto; (ii) with respect to letters of credit issued for
such Person's account; (iii) under agreements for the prospective purchase or
repurchase assets other than obligations arising under unexercised option
agreements; (iv) to make future investments in any Person; (v) to pay the
5
deferred purchase price of property or services previously purchased or
rendered, except unsecured trade accounts payable and accrued expenses required
to be capitalized in accordance with GAAP; (b) all indebtedness, obligations or
other liabilities of such Person or others secured by a Lien on any asset of
such Person, whether or not such Person is otherwise obligated on such
indebtedness, obligations or liabilities are assumed by such Person, all as of
such time; (c) all indebtedness, obligations or other liabilities of such Person
in respect of any foreign exchange contract or any interest rate swap, cap or
collar agreement or similar arrangement, net of liabilities owed to such Person
by the counterparties thereon; (d) all shares of Capital Stock or equivalent
ownership interest subject (upon the occurrence of any contingency or otherwise)
to mandatory redemption prior to the date the Loan is scheduled to be repaid in
full; (e) obligations of others to the extent Guaranteed by such Person or to
the extent such Person is otherwise liable on a recourse basis; and (f) such
Person's pro rata share of non-recourse Indebtedness of a partnership in which
such Person is a partner (it being understood that the remaining portion of such
non-recourse partnership Indebtedness shall not constitute Indebtedness of such
Person).
"Interest Coverage Ratio" means, as of any date the same is calculated,
the ratio of (a) EBITDA for the fiscal quarter ending on or most recently ended
prior to such date to (b) Interest Expense for such fiscal quarter, determined
in each case on a Combined basis in accordance with GAAP.
"Interest Expense" means, for any Person for any period, total interest
expense on Indebtedness of such Person, whether paid or accrued, but without
duplication (including the interest component of capital leases), including,
without limitation, (a) all commissions, discounts and other fees and charges
owed with respect to letters of credit, and (b) one hundred percent (100%) of
any interest expense, whether paid or accrued, or any other Person for which
such Person is wholly or partially liable (whether by Guarantee, pursuant to
Applicable Law or otherwise) but excluding (i) interest on Reserved Construction
Loans, and (ii) swap or other interest hedging breakage costs, all as determined
in conformity with GAAP.
"Investment" in any Person shall mean any investment, whether by means
of share purchase, loan, advance, extension of credit, capital contribution or
otherwise, in or to such Person, the Guarantee of any Indebtedness of such
Person, or the subordination of any claim against such Person to other
Indebtedness of such Person.
"LIBOR Rate" means one hundred (100) basis points (1.00%) in excess of
the London Interbank Offered Rate (LIBOR). As used herein, the term "LIBOR"
means, as of any Rate Adjustment Date as provided in Section 3(a) hereof, a per
annum rate of interest (expressed as a percentage and rounded upwards, if
necessary, to the nearest 0.0625%) equal to the "London Interbank Offered Rate
(LIBOR)" at which U.S. Dollar deposits are offered to Lender in immediately
available funds in the London Interbank Market as effective for contracts
entered into on the Monthly Rate Adjustment Date, as determined by Lender in
accordance with its prevailing procedures in effect from time to time. At
Borrower's option, interest rate time periods shall be either a one (1) month,
two (2) months, three (3) months, or six (6) months LIBOR interest period.
6
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest or lien arising from a deed of trust, mortgage,
encumbrance, pledge, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes, and including but not limited to
reservations, exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases, and other title exceptions and encumbrances
affecting the Mortgaged Properties.
"Loan" means the Revolving Credit Loan from the Bank to the Borrower.
"Loan Agreement" means this Loan Agreement between the Borrower and the
Bank, and any modifications, amendments, or replacements thereof, in whole or in
part.
"Malls" means property owned by Borrower and/or its Affiliates that is
in the form of an enclosed regional retail shopping mall that includes two or
more anchor stores.
"Maturity Date" means the date that the Loan shall be due and payable,
and shall be March 15, 2007.
"Maximum Rate" means the maximum variable contract rate of interest
which the 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
a Mortgaged Property or an interest in a Mortgaged Property, granting a Lien on
such real estate or interest in real estate as security for the payment of
indebtedness.
"Mortgaged Properties" means any property encumbered by a CBL Mortgage.
As of the date hereof, the Mortgaged Properties are the Gunbarrel Pointe
Shopping Center in Xxxxxxxx County, Tennessee and the Sunrise Commons Shopping
Center in Cameron County, Texas, together with any other properties which are
hereafter subject to a CBL Mortgage.
"Net Income" means, with respect to Borrower, CBL Properties, Inc., and
their respective Subsidiaries for any period, net earnings (or loss) after
deducting therefrom all operating expenses, income taxes and reserves and net
earnings (or loss) attributable to minority interests in Subsidiaries for the
period in question, determined in each case on a Combined basis in accordance
with GAAP. Without limiting the generality of the foregoing, earnings (or
losses) from the sale of outparcels in the ordinary course of business shall be
included in determining Net Income.
"Net Operating Income" means, for any Property for the period in
question (a) any cash rentals, expense or cost reimbursements, or other income
or gain earned by Borrower with respect to such Property, less (b) all cash
expenses (excluding items capitalized under GAAP) incurred by Borrower during
such period in connection with the operation or leasing of such Property.
7
"Net Worth" means, with respect to Borrower, CBL Properties, Inc. and
their Subsidiaries as of any date, the sum of (a) the total shareholders' equity
of CBL Properties, Inc., plus (b) the value of all minority interests in
Borrower, plus (c) depreciation and amortization since December 31, 1993, minus
(d) all intangible assets, determined on a Combined basis in accordance with
GAAP.
"Non-Mall Project" means property owned by Borrower and/or its
Affiliates that is in the form of a retail shopping center that is not a Mall.
"Note" means the Revolving Credit Note executed by the Borrower to the
Bank, dated of even date herewith 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.
"Permitted Encumbrances" means and includes:
(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, reciprocal easement agreements, or
other agreements for use and occupancy of the subject property.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government or
agency or political subdivision thereof.
"Project" or "Projects," which definition is used and only applies
within Section 7.8 hereof, means the real estate projects owned by Borrower, a
Subsidiary of Borrower, or any other Person and "Project" shall mean any one of
the Projects.
8
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
"Revolving Credit Advances" means advances of principal on the
Revolving Credit Loan to be made by the Bank under the terms of this Loan
Agreement to the Borrower during the Revolving Credit Period.
"Revolving Credit Loan" means the Borrower's revolving credit
indebtedness to the Bank pursuant to Section 2 of this Loan Agreement.
"Revolving Credit Note" means the Note as described in Section 2.3
hereof.
"Revolving Credit Period" means the period of time during which the
Bank will make Revolving Credit Advances of the Loan to the Borrower. The
Revolving Credit shall commence on the Closing Date and shall expire on the
earlier of (a) January 15, 2005 (subject, however, to being extended as is set
forth in Section 2.4 hereof) or in the event that the Bank and Borrower shall
hereafter mutually agree in writing that the Revolving Credit Loan and the
Bank's commitment hereunder shall be extended to another date, such other date
mutually agreed upon between Bank and Borrower to which the Bank's commitment
shall have been extended, or (b) the date as of which Borrower shall have
terminated the Bank's commitment under the provisions of Section 2.6 hereof.
"Subsidiary" means, as to any Person, any other Person, more than fifty
percent (50%) of the outstanding shares of Capital Stock, partnership interest
or other ownership interest, having ordinary voting power to elect a majority of
the board of directors or similar governing body of such other Person
(irrespective of whether or not at the time stock or other ownership interests
of any other class or classes of such other Person shall have or might have
voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or by one or more
"Subsidiaries" of such Person, and whose financial reports are prepared on a
consolidated basis with such Person. "Wholly Owned Subsidiary" shall mean any
such Person of which all of the shares of Capital Stock or ownership interests
(other than, in the case of a corporation, directors' qualifying shares) are so
owned or controlled. For purposes of this Agreement, CBL Management, Inc. shall
be deemed to be a Subsidiary of Borrower.
"Total Obligations" means, as of any date, the sum (without
duplication) of (a) the Indebtedness of Borrower, CBL Properties, Inc. and their
respective Subsidiaries (other than Indebtedness described in clauses (a)(iii)
and (a)(iv) of the definition thereof); plus (b) the aggregate amount of
Contingent Obligations of Borrower, CBL Properties, Inc. and their respective
Subsidiaries in respect of Indebtedness (other than Indebtedness described in
clauses (a)(iii) and (a)(iv) of the definition thereof); plus (c) Borrower's,
CBL Properties, Inc's or their respective Subsidiaries' proportionate share of
Indebtedness (other than Indebtedness described in clauses (a)(iii) and (a)(iv)
of the definition thereof) of any Unconsolidated Affiliate, whether or not
Borrower, CBL Properties, Inc. or such Subsidiary is obligated on such
Indebtedness; plus (d) all other amounts which would be classified as a
9
liability on the consolidated balance sheets of Borrower or CBL Properties,
Inc., determined in each case on a Combined basis in accordance with GAAP.
"Unconsolidated Affiliate" means, in respect of 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.
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.
Article II
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 Revolving Credit Advances to the Borrower from time
to time during the Revolving Credit Period in an aggregate principal amount not
to exceed, at any one time outstanding, the lesser of (a) Twenty Million Dollars
($20,000,000) or (b) the Borrowing Base. Within the aforesaid limits, the
Borrower may borrow, make payments of, and re-borrow under the Revolving Credit
Loan.
2.2 Funding the Loan. Each Revolving Credit Advance hereunder shall be made upon
the written request of the Borrower to the Bank, specifying the date and amount
and intended use thereof. All Revolving Credit Advance hereunder shall be made
by depositing the same to the checking account of Borrower at the Bank or other
methods acceptable to Borrower and Bank.
2.3 The Note and Interest. The Revolving Credit Loan shall be evidenced by the
Note, a copy of which is attached hereto as Exhibit C. The unpaid principal
balances of the Revolving Credit Loan shall bear interest from the Closing Date
on disbursed and unpaid principal balances at the LIBOR Rate. The first
selection of the one (1) month, two (2) months, three (3) months, or six (6)
months LIBOR interest period shall be made by the 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. The Borrower may not select a rate period which extends beyond the
Maturity Date. Interest shall be payable monthly on the fifteenth (15th) day of
each month after the Closing Date, commencing October 15, 2003, with the final
installment of interest, together with the entire outstanding principal balance
of the Revolving Credit Loan, being due and payable on the Maturity Date.
2.4 Loan Review; Extensions of Revolving Credit Period; Continuing
Security.
(a) The Revolving Credit Period may be extended for additional
periods of one (1) year (but in no event later than the Maturity Date),
in accordance with the provisions of this subsection (a) following.
On January 15, 2005 and January 15, 2006, Bank shall review the
performance of the Loan. If the Bank deems performance of the Loan
10
acceptable, it will renew the Revolving Credit Period for one (1) year
(to the following January 15), and during such renewal period, Bank
will make Revolving Credit Advances to the Borrower in accordance with
the terms hereof. However, if Bank, in its sole judgment, deems
performance of the Loan not acceptable, Bank shall not be obligated to
renew the Revolving Credit Period of the Loan, and, in such case, the
then outstanding principal balance of the Loan shall convert to a
"term" note, no further Revolving Credit Advances will be made
hereunder, and the Borrower shall pay to Bank monthly installments of
accrued and unpaid interest on the outstanding principal balance
commencing January 15, 2005, and on the Maturity Date, Borrower shall
pay to the Bank the outstanding principal balance, together with all
accrued and unpaid interest thereon. Assessment of performance and the
decision whether to renew the Revolving Credit Period shall be solely
within Bank's discretion.
(b) The Bank's election not to make further Revolving Credit Advances shall
not affect the security interest granted to Bank pursuant to the CBL
Mortgages, nor the duties, covenants, and obligations of the Borrower
therein and in this Agreement until all indebtedness, liabilities and
obligations secured by the CBL Mortgages are satisfied in full; 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.
2.5 [INTENTIONALLY DELETED.]
2.6 Prepayments or Termination of the Revolving Credit Loan. The Borrower may,
at its option, from time to time, subject to the terms and conditions hereof,
without penalty, borrow, repay and reborrow amounts under the Revolving Credit
Loan. By notice to the Bank in writing, Borrower shall be entitled to terminate
the Bank's commitment to make further Revolving Credit Advances, in which case
the Loan, unless paid in full by the Borrower, shall convert to a term note as
set forth in Section 2.4 above and shall be payable in accordance therewith.
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 the
Mortgaged Properties.
2.7 Substitution of Collateral. Upon the Bank's prior written approval, the
Borrower may substitute collateral originally provided for the Revolving Credit
Loan for collateral of equal value but such substituted collateral must be
acceptable to the Bank and the acceptance thereof is solely within the
discretion of the Bank.
Article III
REQUIRED PAYMENTS, PLACE OF PAYMENT, ETC.
3.1 Required Repayments. In the event that the outstanding principal balance of
the Revolving Credit Loan shall at any time exceed the Borrowing Base, upon
discovery of the existence of such excess borrowings, the Borrower shall, within
one hundred twenty (120) 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
11
Borrower's option provide the Bank with additional collateral for the Revolving
Credit Loan of a value and type reasonably satisfactory to the 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 Revolving Credit Advances under the Loan, the additional collateral
shall include collateral, deemed sufficient in the Bank's discretion, to secure
the Twenty Million Dollars ($20,000,000.00) credit line limitation, thereafter
permitting Borrower to obtain additional Revolving Credit advances in the manner
and to the extent provided under the terms of this Loan Agreement.
In addition and during such one hundred twenty (120) day period or
until the principal payment or satisfactory collateral is received, whichever is
less, the Borrower will not make any additional requests for Revolving Credit
Advance 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 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 the
Bank, at its address listed in Section 9.2 of this 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 indebtedness evidenced by the Note shall fall due on a
Saturday, Sunday or public holiday under the laws of the State of Alabama, such
payment shall be made on the next succeeding Business Day.
Article IV
CONDITIONS OF LENDING
4.1 Conditions Precedent to Closing and Funding Initial Revolving Credit
Advance. The obligation of the Bank to fund the initial Revolving Credit Advance
hereunder is subject to the condition precedent that the Bank shall have
received, on or before the Closing Date, all of the following in form and
substance satisfactory to the Bank:
(a) This Loan Agreement.
(b) The Note.
(c) The CBL Mortgages together with title commitments from title insurance
companies acceptable to the Bank, providing for the issuance of
mortgagee's loan policies insuring the liens of the CBL Mortgages in
form, substance and amount satisfactory to the Bank, containing no
exceptions which are unacceptable to the Bank, and containing such
endorsements as the Bank may require.
(d) Current draft financial statements of the Borrower in form satisfactory
to the Bank to be held by the Bank in strict confidence.
12
(e) Certified copy of Borrower's limited partnership agreement and
certificate of limited partnership, and all amendments thereto and a
certificate of existence for the Borrower.
(f) Certified corporate resolutions of Borrower's general partner, and
certificate(s) of existence for Borrower's general partner from the
state of its incorporation and such other states as Bank shall require,
together with a copy of the charter and bylaws of the Borrower's
general partner.
(g) Certified copy of the Limited Partnership Agreement and Certificate of
Limited Partnership for CBL/Sunrise Commons, L.P. ("CBL/Sunrise") and
the Operating Agreement and Certificate of Formation for Gunbarrel
Commons, LLC ("Gunbarrel"), and all amendments thereto and a
certificate of existence for such entities
(h) Certified corporate resolutions of the general partners of CBL/Sunrise
and the manager of Gunbarrel and certificate(s) of existence for such
general partners and managers from the states of their incorporation
and such other states as Bank shall require, together with a copy of
the charter and bylaws of the general partners.
(i) The opinion of counsel for Borrower, CBL/Sunrise, Gunbarrel, CBL
Holdings, CBL Management Inc., and CBL Properties, Inc., and for the
general partner, manager or officers of each of the foregoing entities,
that the transactions herein contemplated have been duly authorized by
all requisite corporate, company and partnership 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 the Bank may
require.
(j) 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 the Bank shall so require, certified
copies of the original insurance policies evidencing such insurance.
(k) Environmental audits of the applicable Mortgaged Properties.
(l) Current as-built surveys of the applicable Mortgaged Properties at
Closing, 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 the Bank and shall be accompanied by the
Bank's usual survey certificate.
(m) Appraisals of the applicable Mortgaged Properties.
(n) All the items and information shown on the Checklist for Closing, a
copy of which is attached hereto and marked Exhibit D.
13
4.2 Conditions Precedent to All Revolving Credit Advances. The obligation of the
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) The Borrower shall have furnished to the Bank a written request stating
the amount of Revolving Credit Advance requested together with the
intended use of the Revolving Credit Advance.
(b) The Borrower shall not be in default beyond any cure period 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 indebtedness. Each of the Warranties and
Representations of the Borrower, as set out in Article 5 hereof shall
remain true and correct in all material respects as of the date of such
Revolving Credit Advance.
(c) Within forty-five (45) days after each January 1, April 1, July 1 and
October 1, Borrower shall furnish to the Bank a Non-Default Certificate
executed by a duly authorized officer of Borrower, in the form of
Exhibit E attached hereto.
Article V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that:
5.1 Partnership Status. It 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.
5.2 Power and Authority. The execution, delivery and performance of the Loan
Agreement and the Note by the Borrower 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 agreement of the Borrower, any provision of any indenture,
agreement or other instrument to which Borrower is a party, or by which
Borrower's 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, except for liens
and other encumbrances provided for and securing the indebtedness covered by
this Loan Agreement.
5.3 Financial Condition.
(a) The balance sheet of Borrower for the fiscal year ended as of
December 31, 2002 and the related statement of income and changes in
financial conditions for such years then ended, a copy of each of
14
which has been furnished to the Bank, together with any explanatory
notes therein referred to and attached thereto, are correct and
complete and fairly present the financial condition of Borrower 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.
(b) There has been no substantial adverse change in the business,
properties or condition, financial or otherwise, of Borrower since
December 31, 2002.
(c) The balance sheet of CBL Properties, Inc. for the fiscal year ended as
December 31, 2002 and the related statement of income and changes in
financial conditions for the year then ended, a copy of which has
been furnished to the Bank, together with any explanatory notes
therein referred to and attached thereto, are correct and complete
and fairly present the financial condition of CBL Properties, Inc. 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) There has been no substantial adverse change in the business,
properties or condition, financial or otherwise, of CBL Properties,
Inc. since December 31, 2002.
(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 has 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 Mortgaged
Properties 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 the Borrower threatened against or affecting Borrower, or any
properties or rights of Borrower, which, if adversely determined, would
materially adversely affect the financial or any other condition of Borrower
except as set forth in Exhibit F attached hereto.
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
15
said returns or on any 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 Affecting Borrower. In Borrower's opinion,
Borrower is not a party to any agreement or instrument or subject to any
partnership agreement restrictions adversely affecting its business, properties
or assets, operations or condition (financial or otherwise) other than this
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 the Borrower. 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 possesses 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 is 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. 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 of the Mortgaged
Properties and no above or underground storage tanks exist unlawfully on such
Mortgaged Properties. 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 except as set forth in Exhibit F attached
hereto.
5.12 Ownership of Borrower and CBL Holdings. As of the date hereof, CBL
Properties, Inc. owns 100% of CBL Holdings. As of the date hereof, CBL Holdings
owns an approximate 1.7% general partner interest in the Borrower. As of the
date hereof, CBL & Associates, Inc. and its affiliates (including wholly-owned
subsidiaries), officers and key employees own an approximate 15.8% limited
partnership interest in the Borrower. The Borrower has no other general
partners.
Article VI
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 indebtedness evidenced by
the Note, unless the Bank shall otherwise consent in writing, such consent to be
at the discretion of the Bank, Borrower will:
6.1 Business and Existence. Perform all things necessary to preserve and keep in
full force and effect its 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.
16
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 Mortgaged Properties, 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
the Bank, but in any event not less than those amounts customarily
maintained by companies in the same or substantially similar business;
(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 Borrower's property and assets 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. The 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
Mortgages; and
(iv) Such other insurance as the Bank may, from time to time, reasonably
require by notice in writing to the Borrower.
(b) All required insurance policies shall provide for not less than thirty
(30) days' prior written notice to the 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 the 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
the Bank notwithstanding any action, inaction or breach of
representation or warranty by the Borrower. The 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 indebtedness, liabilities, and
obligations of the Borrower to the Bank (whether matured or unmatured)
or, at Bank's option, released to the Borrower.
17
6.4 Obligations, Taxes and Liens. Pay all of its indebtedness 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 the
Borrower 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.
6.5 Financial Reports and Other Data. Furnish to the Bank as soon as available
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 balance sheet and statement of income and surplus of Borrower
together with the unqualified audit report and opinion of Deloitte & Touche,
Certified Public Accountant, or other independent Certified Public Accountant
which is widely recognized and of good national repute or which is otherwise
acceptable to the Bank, showing the financial condition of Borrower at the close
of such year and the results of operations during such year; and, within
forty-five (45) days after the end of each fiscal quarter, (i) financial
statements similar to those described above for Borrower and for CBL Properties,
Inc., not audited but certified by the Chief Financial Officer or Controller or
a Vice President of Accounting of Borrower and CBL Properties, Inc., as the case
may be, such balance sheets to be as of the end of such quarter and such
statements of income and surplus 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; and (ii) a Non-Default
Certificate in the form prescribed on Exhibit E Attached hereto and made a part
hereof; and, within thirty (30) days after the end of each fiscal quarter, rent
rolls and operating statements related to the Mortgaged Properties.
6.6 Additional Information. Furnish such other information regarding the
operations, business affairs and financial condition of the Borrower as Bank may
reasonably request, including but not limited to written confirmation of
requests for Revolving Credit Advances, true and exact copies of its books of
account and tax returns, and all non-confidential information furnished to the
owners of its partnership interests, or any governmental authority, and permit
the copying of the same and Bank agrees that all such information shall be
maintained in strict confidence. Provided, however, the 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 material
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 material defaults would constitute an Event of Default hereunder. Borrower
shall not enter into any such contractual arrangement whereby the Borrower is
prohibited from disclosing such financial arrangements, without providing Bank
with written notice of the nature of such prohibitions. In addition, Borrower
18
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 the Bank, at the Bank's
expense, after notice to Borrower, to visit and inspect any of the properties,
books and financial reports of the Borrower 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 properties
and business affairs and provided further that such person shall disclose such
information only to the Bank, the Bank's appraisers and examiners as required by
banking laws, rules and regulations.
6.8 Environmental Laws. Maintain the Mortgaged Properties in compliance with all
applicable Environmental Laws, and immediately notify the 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 first
knowledge or notice, immediately notify the Bank of any information that may
adversely affect in any material manner the Mortgaged Properties.
6.10 Total Obligations to Capitalized Value. Maintain at all times beginning on
the Closing Date, a ratio of Total Obligations to Capitalized Value of not more
than .65 to 1.00.
6.11 Appraisals. Upon the occurrence of an Event of Default which remains
uncured beyond any applicable grace or cure period, deliver to the Bank, upon
request by the Bank, appraisals of the Property.
6.12 Secondary Financing by CBL Properties, Inc. In the event CBL Properties,
Inc. does any secondary offering of its securities, it will apply no less than
seventy-five (75%) net of expenses of the monies received from such offering for
the benefit of the Borrower and will not use that percentage of funds so
received to capitalize or otherwise fund any other new partnerships or entities.
Article VII
NEGATIVE COVENANTS OF BORROWER
Borrower covenants and agrees that at all times from and after the
Closing Date, unless the Bank shall otherwise consent in writing, such consent
to be at the reasonable discretion of the Bank, it will not, either directly or
indirectly:
7.1 Indebtedness. Incur, create, assume or permit to exist any indebtedness or
liability, secured by any of the Mortgaged Properties, except for indebtedness,
which is subordinate in all respects to the indebtedness evidenced by the
Revolving Credit Loan and the Note, which indebtedness does not exceed Five
Hundred Thousand Dollars ($500,000.00) in the aggregate per property and is used
for renovation of the Mortgaged Properties.
19
7.2 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
Mortgaged Properties except:
(a) Liens securing payment of the Note;
(b) Permitted Encumbrances (as defined at Section 1); and
(c) Liens securing indebtedness permitted under Section 7.1 above.
7.3 Sale of Assets. Sell, lease, convert, transfer or dispose (other than in the
normal course of business) of all or a substantial part of its assets for less
than book value or fair market consideration without the Bank's prior written
consent; provided, however, while the Revolving Credit Loan is outstanding, the
Borrower may not sell in a single transaction or related series of transactions
properties whose GAAP base value exceeds twenty percent (20%) of the GAAP book
value of the Borrower's assets without the Bank's approval or review. All
transfers, whether or not the Bank's approval shall be required as set forth
above, shall be reported to the Bank.
7.4 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
unless the Borrower and/or its general partner shall be the surviving entities.
7.5 Partnership Distributions and Other Payments. Except as hereinafter
provided, declare or pay, or set apart any funds for the payment of, any
distributions on any partnership interest in Borrower, or apply any of its
funds, properties, or assets to or set apart any funds, properties or assets
for, the purchase or other retirement of or make any other distribution (whether
by reduction of partnership capital or otherwise) in respect of, any partnership
interest in Borrower; or without the consent of Bank, pay any fee or other
compensation of any nature to or for the benefit of CBL & Associates, Inc.
and/or CBL Properties, Inc. and/or their affiliates, officers or key employees
(the "Distributees"). Notwithstanding anything stated in the foregoing to the
contrary, (a) Borrower may pay to such Distributees and its other partners
quarterly distributions so long as such distributions do not exceed in the
aggregate 95% of Funds from Operations and (b) Borrower may pay any fee or other
reasonable compensation of any nature to or for the benefit of (i) CBL
Management, Inc., or (ii) any other Distributee, which payment has been made in
the ordinary course of business and approved by the independent directors of CBL
Properties, Inc. Borrower may make a distribution from Loan proceeds but only
once during any rolling twelve (12) month period and provided Borrower is not in
default hereunder and such distribution will not create a default hereunder.
7.6 Loans to Officers and Employees. Permit or allow loans to officers and
employees of Borrower 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 Management, Inc.
20
7.7 Limitations on Floating Rate Indebtedness. Incur, assume or suffer to exist
any outstanding indebtedness bearing interest at a variable rate that fluctuates
during the scheduled life of such indebtedness (other than indebtedness under
Reserved Construction Loans, as that term is defined hereinafter) in an
aggregate principal amount in excess of $125,000,000.00 at any one time
outstanding unless Borrower has obtained an interest rate swap, cap or collar
agreement or similar arrangement with a recognized investment grade financial
institution which prevents the all-in effective interest rate payable by
Borrower with respect to the principal amount of such indebtedness in excess of
$125,000,000.00 (including base rate, applicable margin and reserve and similar
costs) from increasing above the rate set forth below with respect to such
indebtedness:
Principal Amount in
Excess of $125,000,000.00 Interest Rate
-------------------------- -------------
Less than or equal
to $50,000,000.00 8.5%
Greater than
$50,000,000.00 and
less than or equal
to $100,000,000.00 8.0%
Greater than
$100,000,000.00 and
less than or equal
to $150,000,000.00 7.5%
Greater than
$150,000,000.00 7.0%
For purposes of this Loan Agreement, "Reserved Construction Loan" shall
mean a construction loan extended to Borrower or to a subsidiary of Borrower for
the construction of a project in respect to which (a) neither any monetary or
material non-monetary default nor any event of default exists; (b) interest on
such loan has been budgeted to accrue at a rate of not less than the Base Rate
plus two percent (2%) at the time the interest reserve account is established;
(c) the amount of such budgeted interest has been (i) included in the principal
amount of such loan and (ii) segregated into an interest reserve account (which
shall include any arrangement whereby loan proceeds equal to such budgeted
interest are reserved and only disbursed to make interest payments with respect
to such loan); (d) absent an event of default or a monetary or material
non-monetary default, such interest can be paid out of such interest reserve
account only for the purpose of making interest payments on such loan; (e) the
amount held in such interest reserve account with respect to such loan, together
with the net income, if any, from such project projected by the Bank in its
reasonable judgment, will be sufficient, as reasonably determined by the Bank
from time to time, to pay all interest expense on such loan until the date that
the earnings before income, taxes, depreciation and amortization of the project
being financed by such loan is anticipated to be sufficient to pay all interest
21
expense on such loan; and (f) Borrower has delivered all certificates required
by this Loan Agreement.
7.8 Investment Concentration.
(a) Borrower shall not make, and shall not permit any of its
Subsidiaries to make, any Investment in the following items which
would cause the value of such holdings of Borrower and its
subsidiaries to exceed the following percentages of Borrower's
Net Worth:
(i) raw land, such that the aggregate book value of all such raw
land (other than: (A) raw land subject to a ground lease
under which Borrower is the landlord and a Person not an
Affiliate of Borrower is the tenant; (B) land on which the
development of a Project has commenced; (C) 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 (D) out-parcels held for lease or
sale) exceeds ten percent (10%) of Net Worth;
(ii) developed real estate used primarily for non-retail
purposes, such that the aggregate book value of such real
estate (other than the real estate located at 0000 Xxxxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx and a small xxxxxx
xxxxxxxx xxxxxxx xx Xxxxxxxx Xxxx, Xxxx, Xxxxx, exceeds ten
percent (10%) of Net Worth;
(iii)Capital Stock of any Person, such that the aggregate value
of such Capital Stock in Unconsolidated Affiliates other
than CBL Management, Inc., calculated on the basis of the
lower of cost or market, exceeds ten percent (10%) of Net
Worth;
(iv) Mortgages, such that the aggregate principal amount secured
by Mortgages acquired by Borrower after the Effective Date
exceeds ten percent (10%) of Net Worth;
(v) Investments made after the date hereof in partnerships,
joint ventures and other non-corporate Persons accounted for
an equity basis (determined in accordance with GAAP), such
that the aggregate outstanding amount of such Investments
(other than Investments in partnerships in which (A)
Borrower is the sole general partner and the only limited
partners are either (I) the Person from whom the real estate
owned by such partnership was purchased, and such Person's
successors and assigns or (II) a Person operating stores
which anchor the development constructed or to be
constructed by such partnership or (B) Borrower owns not
less than ninety percent (90%) of the partnership interests
and has the unilateral right to --- make all operational and
strategic decisions) exceeds ten percent (10%) of Net Worth.
(b) Neither Borrower nor any of its Subsidiaries shall acquire the
business of all or substantially all of the assets or stock of
any Person, or any division of any Person, whether through
Investment, purchase of assets, merger or otherwise; provided
that Borrower or its Subsidiaries may make such an acquisition so
long as Borrower has delivered to Bank, not less than thirty (30)
22
days prior to the date such acquisition is consummated, (i) all
information related to such acquisition as is reasonably
requested by the Bank and (ii) a certificate, signed by the chief
financial officer of Borrower, certifying that, giving effect to
such acquisition, there shall not exist any Default or Event of
Default hereunder and setting forth in reasonable detail the
calculations setting forth, on a pro forma basis giving effect
such acquisition, Borrower's compliance with the financial
covenants set forth herein.
7.9 Minimum Net Worth. Permit its Net Worth at any time to be less than
$1,000,000,000.00 plus fifty percent (50%) of the net proceeds or value (whether
cash, property or otherwise) received by CBL Properties, Inc. or Borrower from
any issuance after the effective date of this Loan Agreement of any shares of
Capital Stock of CBL Properties, Inc., any operating partnership units of
Borrower or any shares of Capital Stock or other equity interest in any
Subsidiary of Borrower.
7.10 Debt Coverage Ratio. Permit, as of the last day of any fiscal
quarter of Borrower, the Debt Coverage Ratio to be less than 1.55 to 1.00.
7.11 Interest Coverage Ratio. Permit, as of the last day of any fiscal
quarter, the Interest Coverage Ratio to be less than 1.75 to 1.00.
Article VIII
EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following shall occur:
8.1 Payment of Principal, Interest to Bank. The Borrower defaults in the payment
as and when due of principal or interest on the 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 in the payment
when due of any other recourse indebtedness, liabilities, or obligations to the
Bank beyond the expiration of any applicable notice and cure period, whether now
existing or hereafter created or arising; direct or indirect, absolute or
contingent; or
8.2 Payment of Obligations to Others. The Borrower defaults in the payment as
and when due of any other indebtedness or obligation but only if: (a) such
indebtedness or obligation is with recourse to the Borrower; and (b) the effect
of such default is to accelerate the maturity of such indebtedness or
obligation, or the effect of such default is to permit the holder thereof to
cause such indebtedness or obligation to become due prior to its stated
maturity; and (c) the default is not cured within the applicable cure period, if
any, or subsequently waived by the lender to whom payment is owed. Provided,
however, even if such indebtedness or obligation is with recourse to the
Borrower, the Borrower will not be considered in default hereunder if the
default is either: (a) a monetary default which does not exceed One Million
Dollars ($1,000,000.00) and is not a failure to pay a normal monthly, quarterly
or other periodic principal or interest installment due specifically excluding
any regularly scheduled balloon payment not paid in full within sixty (60) days
23
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) is being
contested by the Borrower in good faith through appropriate proceedings
reasonably acceptable to Bank; or
8.3 Performance of Obligations to Bank. The Borrower defaults with respect to
the performance of any non-monetary obligation incurred in connection with the
Loan other than its obligations under Section 7.8 hereof and such default
continues for more thirty (30) days following mailing of notice thereof from
Bank to Borrower, or, if such default is incapable of cure within such thirty
(30) day period, Borrower fails to diligently, continuously and in good faith
pursue such cure to completion; or the Borrower defaults with respect to the
performance of any other non-monetary obligation incurred in connection with any
recourse indebtedness for borrowed money owed to the Bank an such default
continues for more thirty (30) days following mailing of notice thereof from
Bank to Borrower, or, if such default is incapable of cure within such thirty
(30) day period, Borrower fails to diligently, continuously and in good faith
pursue such cure to completion; or
8.4 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, if the default even if subsequently waived by the Bank is considered a
material default by the Bank and if the default is not cured within the
applicable cure period provided by the lender to whom such performance is owed;
provided, however, if the indebtedness is in an amount less that $1,000,000.00,
or if the lender's declaration of default is being continuously and diligently
contested by the Borrower in good faith through appropriate proceedings, such
default shall not constitute a default hereunder; or
8.5 Representation or Warranty. Any representation or warranty made by the
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
8.6 Bankruptcy, Etc. The Borrower, CBL Holdings, or CBL Properties, Inc. 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, CBL Holdings, or CBL
Properties, Inc., in which an order for relief is entered against Borrower, CBL
Holdings, or CBL Properties, Inc. or which remains undismissed for a period of
ninety (90) days or more; or Borrower, CBL Holdings, or CBL Properties, Inc. 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 Borrower, CBL Holdings, or CBL Properties, Inc. shall generally
not pay its debts as such debts become due; or
24
8.7 Concealment of Property, Etc. The Borrower, CBL Holdings, or CBL Properties,
Inc. shall have concealed, removed, or permitted to be concealed or removed, any
part of its property, with intent to hinder, delay or defraud its or his
creditors or any of them, or made or suffered a transfer of any of its property
which shall constitute a fraudulent act under any bankruptcy, fraudulent
conveyance or similar law; or shall have made any transfer of its property to or
for the benefit of a creditor at a time when other creditors similarly situated
have not been paid; or shall have suffered or permitted, while insolvent, any
creditor to obtain a lien upon any of its property through legal proceedings or
distraint which is not vacated within thirty (30) days from the date thereof; or
8.8 Management Change. Management of the Borrower shall, for a period of one
hundred eighty (180) consecutive days, cease to be in at least one of the
following persons: (a) Xxxxxxx X. Xxxxxxxx, (b) Xxxx X. Xxx, (c) Xxxxxxx
Xxxxxxxx, (d) Xxxxxxx X. Xxxxxxxx, or (e) Xxx Xxxxxx, who shall be in an
executive management position with Borrower or who shall be a senior vice
president, executive vice president, senior executive vice president or
president with Borrower's general partner; or
8.9 Change in Ownership. CBL & Associates, Inc., its affiliates (including
wholly-owned subsidiaries), officers and key employees shall have, through sale
or transfer, reduced their aggregate partnership interest in Borrower to less
than 15% of the aggregate of such partnership interests. Provided, however, if
the change in ownership occurs as a result of actions taken by Borrower in
compliance this Loan Agreement, no such change of ownership shall result in an
Event of Default hereunder; or
8.10 Loan Documents Terminated or Void. This Loan Agreement, the Note, or any
instrument securing the 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 the Borrower shall deny it has any or
further liability under this Loan Agreement or the Note, respectively; or
8.11 Covenants. The Borrower 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 Mortgages 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 thereof or such longer
period as may be required provided Borrower is diligently pursuing the cure of
such default (such time period not to exceed ninety (90) days without further
consent from Bank); or
8.12 Remedy. Upon the occurrence of any Event of Default, as specified herein,
the Bank shall, at its option, be relieved of any obligation to make further
Revolving Credit Advances under this Agreement; and the Bank may, at its option,
thereupon declare the entire unpaid principal balances of the Note of Borrower,
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 Mortgages, any
other instrument or document which secures the Note, or available at law or in
equity. All such rights and remedies are cumulative and nonexclusive, and may be
25
exercised by the Bank concurrently or sequentially, in such order as the Bank
may choose.
Article IX
MISCELLANEOUS
9.1 Amendments. The provisions of this Loan Agreement, the Note or any
instrument or document executed pursuant hereto or securing the indebtedness may
be amended or modified only by an instrument in writing signed by the parties
hereto.
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 the Borrower, to it at c/o CBL Properties, Inc., CBL Center,
0000 Xxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention:
President, with a copy to Xxxxxxx W.A. Xxxxxxx, Jr., Senior Vice President; if
to the Bank, to it at 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx Xxxx Xxxxxx Group, 0xx
Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, 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 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.
9.3 No Waiver, Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the 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 Agreement (including,
without limitation, enforcement of this 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.
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 the Borrower shall not have the
right to assign its rights hereunder or any interest therein.
9.6 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.
26
9.7 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.
9.8 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.
9.9 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 the Note.
(b) It is the intention of the Bank and the Borrower to comply
strictly with applicable usury laws; and, accordingly, in no
event and upon no contingency shall the 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 the 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 the
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,
the Borrower and the 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 the Bank and the
Borrower, that operates to bind, obligate, or compel the 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 the
Bank and the Borrower that is in conflict with the provisions of
this paragraph.
9.10 Non-Control. In no event shall the Bank's rights hereunder be deemed to
indicate that the Bank is in control of the business, management or properties
of the Borrower or has power over the daily management functions and operating
decisions made by the Borrower.
9.11 Fees and Expenses. The Borrower agrees to pay, or reimburse the 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 the Bank, incurred by the Bank in connection with the development,
27
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
Notes, and any instrument or document now or hereafter securing the and
Revolving Credit Loan indebtedness.
9.12 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.
9.13 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 the 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, the 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.
9.14 Limited Recourse and Joinder of CBL Properties, Inc. CBL Properties, Inc.
joins herein for the purpose of acknowledging and consenting to the terms and
provisions of Section 6.12 hereof. Except for its failure to abide by Section
6.12 of this Loan Agreement in no event shall CBL Properties, Inc. have any
personal liability whatsoever hereunder, all recourse being held to the assets
of Borrower.
9.15 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 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 the Bank shall
proceed at all times in good faith and in a commercially reasonable manner.
9.16 Conflict. In the event of any conflict between the provisions hereof and
any other loan document, during the continuance of this Agreement the provisions
of this Agreement shall control.
28
9.17 Controlling Law. THE VALIDITY, INTERPRETATION, ENFORCEMENT AND EFFECT OF
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF GEORGIA. BORROWER CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING
ARISING HEREUNDER MAY BE BROUGHT IN THE XXXXXX COUNTY SUPERIOR COURT OF THE
STATE OF GEORGIA OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF GEORGIA AND ASSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF ANY SUCH
COURT IN ANY ACTION OR PROCEEDING INVOLVING THIS AGREEMENT. NOTHING HEREIN SHALL
LIMIT THE JURISDICTION OF ANY OTHER COURT.
9.18 Waiver of Jury Trial. BORROWER HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO
A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE LOAN,
OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO
ANY DEALINGS OF BANK AND/OR BORROWER WITH RESPECT TO THE LOAN OR IN CONNECTION
WITH THIS AGREEMENT OR THE EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES UNDER
THIS AGREEMENT OR OTHERWISE, OR THE CONDUCT OR THE RELATIONSHIP OF THE PARTIES
HERETO, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING
AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. BORROWER AGREES THAT BANK
MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
KNOWING, VOLUNTARY, AND BARGAINED AGREEMENT OF BORROWER IRREVOCABLY TO WAIVE ITS
RIGHTS TO TRIAL BY JURY, AND THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY DISPUTE OR CONTROVERSY WHATSOEVER (WHETHER OR NOT MODIFIED HEREIN) BETWEEN
BORROWER AND BANK SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY
A JUDGE SITTING WITHOUT A JURY.
29
IN TESTIMONY WHEREOF, the above partnership Borrower and CBL
Properties, Inc. has caused this instrument to be executed in the appropriate
company or partnership name by its duly authorized general partner, and has
adopted as its seal the word "SEAL" appearing beside its name, this sealed
instrument being executed and delivered on the date first above written.
CBL & ASSOCIATES LIMITED PARTNERSHIP, a Delaware
limited partnership
BY: CBL HOLDINGS I, INC.,
a Delaware corporation
Its Sole General Partner
By: /s/ Xxxx X. Xxx
-------------------------------------
Print Name: Xxxx X. Xxx
-----------------------------
Title: Vice Chairman and Chief
Financial Officer
----------------------------------
ATTEST:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
-----------------------------, Secretary
(Corporate Seal)
CBL & ASSOCIATES PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Print Name: Xxxx X. Xxx
-----------------------------
Title: Vice Chairman and Chief
Financial Officer
----------------------------------
ATTEST:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
-----------------------------, Secretary
(Corporate Seal)
30
SOUTHTRUST BANK,
an Alabama banking corporation
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
31
EXHIBIT A
Real property known as:
Gunbarrel Commons, Xxxxxxxx County, Tennessee
Springs Crossing, Cameron County, Texas
all as more particularly described in the individual deeds of trust and/or
mortgages applicable to the above described properties.
32
EXHIBIT B
PERMITTED ENCUMBRANCES
As described in the Mortgages.
33
EXHIBIT C
REVOLVING CREDIT NOTE
34
EXHIBIT D
CLOSING CHECKLIST
35
EXHIBIT E
NON-DEFAULT CERTIFICATE
For Fiscal Year Ended December 31, 2002.
For Fiscal Quarter Ended June 30, 2003.
The undersigned, a duly authorized officer of CBL & Associate Limited
Partnership, a Delaware limited partnership [referred to as "Borrower" in that
certain Loan Agreement (the "Loan Agreement") dated September ___, 2003 between
Borrower and SouthTrust Bank, an Alabama banking corporation ("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 the 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 the following
are true, accurate and complete:
(i) The Net Worth (as defined in the Loan Agreement) of the Borrower
is $1,000,000,000.00 as of September ____, 2003.
(ii) The Total Obligations to Capitalized Value Ratio of the Borrower
is .65 to 1.00 as of September ____, 2003.
(iii)The Debt Coverage Ratio of the Borrower is 1.55 to 1.00 as of
September ____, 2003.
(iv) The Interest Coverage Ratio of the Borrower is 1.75 to 1.00 as of
September ____, 2003.
36
DATED this ______ day of September, 2003.
CBL & ASSOCIATES LIMITED PARTNERSHIP, a Delaware
limited partnership
BY: CBL HOLDINGS I, INC.,
Its Sole General Partner
By:
-------------------------------------------------
Title:
----------------------------------------------
[Corporate Seal]
37
EXHIBIT F
LITIGATION
Disclosure Pursuant to Paragraph 5.5
None.
ENVIRONMENTAL MATTERS
Disclosure pursuant to Paragraph 5.11
None.
