Exhibit 10.30
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT ("Loan Agreement")
amends and restates in its entirety that certain Loan Agreement
dated to be effective August 19, 1996 between the parties hereto
and is made to be effective as of the ____ day of February, 1997,
by and between CBL & ASSOCIATES LIMITED PARTNERSHIP, a Delaware
limited partnership, whose address is One Park Place, 0000 Xxx
Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 (the "Borrower"), and
LAKESHORE/SEBRING LIMITED PARTNERSHIP, a Florida limited
partnership, whose address is the same as the Borrower's
described above ("Lakeshore"), and FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association organized and
existing under the statutes of the United States of America, with
offices at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
(hereinafter referred to as the "Bank").
RECITALS OF FACT
Borrower has requested that the Bank commit to make loans
and advances to it, and to Lakeshore, for the benefit of
Borrower, on a revolving credit basis in an amount not to exceed
at any one time outstanding the aggregate principal sum of Eighty
Million Dollars ($80,000,000.00) for the purpose of providing
working capital for pre-development expenses, development costs,
equity investments, repayment of existing indebtedness, certain
distributions to limited partners (as allowed herein), letters of
credit and construction and for general corporate purposes. The
Bank has agreed to make certain portions of such loans and
advances on the terms and conditions herein set forth. KeyBank
National Association, formerly Society National Bank, PNC Bank,
Kentucky, Inc. and AmSouth Bank, all as participants in the Loan
have also agreed to make certain portions of such loan and
advances on the terms and conditions herein set forth.
This Loan Agreement is currently being amended to
increase the revolving credit loan and to modify certain
covenants.
NOW, THEREFORE, incorporating the Recitals of Fact set forth
above and in consideration of the mutual agreements herein
contained, the parties agree as follows:
AGREEMENTS
SECTION 1. : DEFINITIONS AND ACCOUNTING TERMS
a. 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:
"Adjusted Loan Amount" means the combined Net Operating
Income from the properties described in the CBL Mortgage as of
each July 1, January 1, April 1 and October 1, as the case may
be, based upon the then immediately preceding twelve (12) month
period, divided by 1.25 with the resulting figure being further
divided by the applicable mortgage constant of .1159.
"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.
"Agent" means Xxxxx Fargo Realty Advisors Funding,
Incorporated, a Colorado corporation as agent pursuant to the
Credit Agreement dated July 28, 1994 between Borrower and Agent.
"Applicable Law" means, in respect of any Person, all
provisions of statutes, rules, regulations and orders of any
governmental authority applicable to such Person, and all orders
and decrees of all courts and arbitrators in proceedings or
actions in which the person in question is a party.
"Bank's Proportionate Share" means the Bank's undivided
participating interest in the Loan which shall be equal to Twenty
Two Million Five Hundred Thousand and NO/100 Dollars
($22,500,000.00).
"Base Rate" means the base commercial rate of interest
established from time to time by Bank. The currently existing
Base Rate is eight and one quarter percent (8.25%) per annum.
"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 July 1, January 1, April 1 and October 1.
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" shall mean, as to any Person, any and all
shares, interests, warrants, participations or other equivalents
(however designated) of corporate stock of such Person.
"Capitalized Value" shall mean 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,
annualized plus (ii) the Interest Expense used in calculating
Borrower's Funds From Operations pursuant to clause (i) above,
and (b) nine percent (.09).
"CBL Management, Inc." means CBL & Associates Management,
Inc., a Delaware corporation.
"CBL Mortgage" means the mortgages and/or deeds of trust
with security agreements and assignments of rents and leases and
related amendments executed by Borrower, Coolsprings Crossing
Limited Partnership, East Towne Crossing Limited Partnership,
Valley Crossing Associates Limited Partnership, Walnut Square
Associates Limited Partnership, Lakeshore/Sebring Limited
Partnership [Including the Lakeshore Mortgage (New) and the
Lakeshore Mortgage (Old)] and/or Vicksburg Mall Associates, Ltd.
and/or any other entity related to or owned by Borrower and/or
CBL & Associates Properties, Inc. in favor of Bank covering their
interest in the properties described in EXHIBIT "A," attached
hereto and made a part hereof, 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 sole
general partner of Borrower.
"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
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.
"Credit Agreement" means the Credit Agreement dated as of
July 28, 1994 and as amended by amendments dated as of May 5,
1995, July 5, 1995 and subsequent amendments between the
Borrower, Xxxxx Fargo Realty Advisors Funding, Incorporated and
others.
"Debt Coverage Ratio" shall mean, 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 (x) in
respect of any period following the Termination Date, the
scheduled principal payments of the Term Out Amount made after
the Termination Date, the scheduled principal payments of the
Term Out Amount made after the Termination Date and (y) 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.
"Effective Date," which definition is used and only applies
within Section 7.9 hereof, means the date the Credit Agreement
between the Borrower and Xxxxx Fargo Realty Advisors Funding
Incorporated became effective in accordance with Section 4.1
thereof.
"Environmental Laws" means all applicable local, state or
federal laws, rules or regulations pertaining to environmental
regulation, contamination or cleanup, including, without
limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation
and Recovery Act of 1976 or any state lien or superlien or
environmental cleanup statutes.
"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 (loss) from operations of Borrower, CBL
Properties, Inc. and their respective Subsidiaries for such
period, plus (b) depreciation and amortization, plus (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" shall mean 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" shall mean and include all hazardous
and toxic substances, wastes or materials, any pollutants or
contaminants (including, without limitation, asbestos and raw
materials which include hazardous constituents), or any other
similar substances or materials which are included under or
regulated by any applicable Environmental Laws.
"Indebtedness" shall mean, 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 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 Loan 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.
"Lakeshore Note" means the promissory note from Lakeshore in
the original principal sum of $ 34,600,000.00 payable to the
order of Agent, later assigned by Agent to Shopping Center
Finance Corp., and later assigned by Shopping Center Finance
Corp. to the Bank, such Promissory Note being now for the
principal sum of $20,400,000.00, as amended, renewed, or replaced
from time to time, but it does not include the Renewal of
Promissory Note dated December 6, 1994 to be effective April 1,
1994.
"Lakeshore Mortgage" means the Florida Mortgage from
Lakeshore/Sebring Limited Partnership in favor of Agent later
assigned by Agent to Shopping Center Finance Corp. and
subsequently assigned of even date herewith to the Bank, as
amended from time to time.
"LIBOR Rate" means the London Interbank Offered Rates as
established from time to time and published in The Wall Street
Journal, Money Rates Section which, unless otherwise specified
herein or in the Note, is a one (1) month LIBOR Rate.
"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 Property.
"Loan" means the Revolving Credit Loan from the Bank to the
Borrower, including the Lakeshore Note which was purchased by the
Bank.
"Loan Agreement" means this Loan Agreement between the
Borrower, Lakeshore and the Bank, and any modifications,
amendments, or replacements thereof, in whole or in part.
"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 real estate or an interest in real estate
granting a Lien on such real estate or interest in real estate as
security for the payment of indebtedness.
"Net 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.
"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.
"Note" means the Revolving Credit Note or Notes executed by
the Borrower to the Bank in the original principal sums of Ten
Million Six Hundred Thousand Dollars ($10,600,000.00) (the
"$10,600,000.00 Note") and Forty Nine Million Dollars
($49,000,000.00), dated of even date herewith, and the Lakeshore
Note, as such note or notes 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.
"Participant" means KeyBank National Association, PNC Bank,
Kentucky, AmSouth Bank, their successors and assigns, and any
other participants in the Loan.
"Participant's Proportionate Share (AmSouth)" means AmSouth
Bank's (or any successor to such bank's interest in the Loan)
undivided participating interest in the Loan which shall be equal
to Twenty Two Million Five Hundred Thousand and NO/100 Dollars
($22,500,000.00).
"Participant's Proportionate Share (KeyBank)" means
KeyBank's (or any successor to such bank's interest in the Loan)
undivided participating interest in the Loan which shall be equal
to Twenty Two Million Five Hundred Thousand and NO/100 Dollars
($22,500,000.00).
"Participant's Proportionate Share (PNC)" means PNC Bank,
Kentucky, Inc.'s (or any successor to such bank's interest in the
Loan) undivided participating interest in the Loan which shall be
equal to Twelve Million Five Hundred Thousand Dollars
($12,500,000.00).
"Participants' Proportionate Share" means Participant's
Proportionate Share (KeyBank), Participant's Proportionate Share
(PNC), and Participant's Proportionate Share (AmSouth).
"Participation Agreement" means that certain Participation
Agreement entered into of even date herewith among Bank,
KeyBank National Association, PNC Bank, Kentucky, Inc., AmSouth
Bank and/or any other participants in the Loan, as amended from
time to time.
"Permitted Encumbrances" shall mean and include:
i. liens for taxes, assessments or similar
governmental charges not in default or being
contested in good faith by appropriate
proceedings;
ii. 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;
iii. 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;
iv. 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;
v. such other liens and encumbrances to which Bank
shall consent in writing; and
vi. leases, licenses, rental 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 7.9 hereof, means the real estate projects
owned by Borrower, a Wholly Owned Subsidiary of Borrower, a
Subpartnership or, to the extent approved by the Supermajority
Lenders, any other Person and "Project" shall mean any one of the
Projects. The capitalized terms used in this definition shall
have the same meaning as provided in the Credit Agreement.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, tangible or intangible.
"Reserved Construction Loan" shall mean a construction loan
extended to Borrower or a Subsidiary of Borrower for the
construction of a project in respect of 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 in respect
of 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 in respect of such loan, together with
the net income if any, from such project projected by the Agent
in its reasonable judgment, will be sufficient, as reasonably
determined by the Agent from time to time, to pay all Interest
Expense on such loan until the date that the EBITDA of the
project being financed by such loan is anticipated to be
sufficient to pay all Interest Expense on such loan; and (f)
Borrower has delivered all certificates required by Section 6
hereof.
"Revolving Credit Advances" means advances of principal on
the Revolving Credit Loan by the Bank under the terms of this
Loan Agreement to the Borrower during the term of the Revolving
Credit Loan pursuant to Section 3.1.
"Revolving Credit Loan" means the aggregate of the
Borrower's and Lakeshore's indebtedness to the Bank pursuant to
Section 2 of this Loan Agreement.
"Revolving Credit Note" means the Notes as described in
Section 2.3 hereof and the Lakeshore Note.
"Subsidiary" shall mean, 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.
"Termination Date of Revolving Credit Loan" shall mean the
earlier of (a) June 1, 1998, 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 2.5 hereof.
"Term Out Amount" means the then outstanding principal
balance of the Loan due and owing the Bank under the Note, if the
Bank elects not to extend the existing Maturity Date and the
Borrower elects to cap the line of credit as provided in the
Note.
"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 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" shall mean, 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.
b. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in
accordance with generally accepted accounting
principles consistent with those applied in the
preparation of the financial statements required
to be delivered from time to time pursuant to
Section 6.5 hereof.
SECTION 2. : COMMITMENT; FUNDING AND TERMS OF REVOLVING
CREDIT LOAN
a. THE COMMITMENT. Subject to the terms and
conditions herein set out, Bank agrees and commits
to make loan advances and letter of credit
advances to the Borrower from time to time, from
the Closing Date until the Termination Date of
Revolving Credit Loan, in an aggregate principal
amount not to exceed, at any one time outstanding,
the lesser of (a) Eighty Million Dollars
($80,000,000.00) minus the sum, if any, applicable
under the provisions of Section 2.8 hereof; or
(b) the Borrower's Borrowing Base, as defined in
Section 1.
b. FUNDING THE LOAN. Each loan 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 advances
hereunder, whether under the Note or the Lakeshore
Note, shall be made by depositing the same to the
checking account of Borrower at the Bank or other
methods acceptable to Borrower and Bank.
LAKESHORE ACKNOWLEDGES AND AGREES THAT NO ADVANCES
SHALL BE MADE DIRECTLY TO LAKESHORE EXCEPT UPON
THE EXPRESS WRITTEN CONSENT OF THE BORROWER
RECEIVED BY THE BANK PRIOR TO THE ADVANCE BEING
MADE.
c. THE NOTE AND INTEREST. The Revolving Credit
Loan shall be evidenced by two (2) promissory
notes of the Borrower and one (1) promissory note
of Lakeshore, each payable to the order of the
Bank in the aggregate principal amount of Eighty
Million Dollars ($80,000,000.00), in form
substantially the same as the copy of the
Revolving Credit Note and the Lakeshore Note
attached hereto as EXHIBIT "C." The entire
principal amount of the Loan shall be due and
payable on the Termination Date of Revolving
Credit Loan. The unpaid principal balances of the
Revolving Credit Loan shall bear interest from the
Closing Date on disbursed and unpaid principal
balances (calculated on the basis of a year of 365
or 366 days as is appropriate) at a rate per annum
as specified in the Note. Said interest shall be
payable monthly on the first day of each month
after the Closing Date, commencing March 1, 1997
provided the Bank has in each instance mailed to
the Borrower a billing notice at least ten (10)
days prior thereto setting forth the payment
amount next due, with the final installment of
interest, together with the entire outstanding
principal balance of the Revolving Credit Loan,
being due and payable on the Termination Date of
Revolving Credit Loan. The first selection of the
one (1) month, three (3) months, six (6) months or
one (1) year LIBOR Rate shall be made by the
Borrower and Lakeshore (but the rate selected by
Lakeshore must always be the same as the rate
selected 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.
Neither the Borrower nor Lakeshore may ever select
a rate period which exceeds the Termination Date
of the Revolving Credit Loan.
d. COMMITMENT FEE/SERVICING FEE. On the Closing
Date, the Borrower agrees to pay to the Bank in
addition to the commitment fee it paid in March of
1994 in the amount of Seventy-Five Thousand
Dollars ($75,000.00), and the commitment fee it
paid in November of 1994 in the amount of Fifty
Thousand Dollars ($50,000.00), and the commitment
fee it paid in July of 1995 in the amount of No
Dollars ($-0-), and the commitment fee it paid in
March of 1996 in the amount of Eighty Five
Thousand and NO/100 Dollars ($85,000.00), and the
commitment fee in the amount of NO/100 Dollars
($-0-), a commitment fee in the amount of One Hundred
Ninety Thousand and no/100 Dollars ($190,000.00),
in consideration of the Bank's agreement to make
additional funds available to Borrower under the
terms and provisions hereof from the Closing Date
until the initial Termination Date of Revolving
Credit Loan specified in Section 1 hereof. In
addition to the commitment fee, on each November 2
hereafter, the Borrower shall pay to the Bank a
servicing fee in the amount of Twenty Four
Thousand and NO/100 Dollars ($24,000.00) for the
Bank's services in connection with administering
the Loan participation with Participant. The
servicing fee shall belong solely to the Bank and
the Participant shall have no interest therein.
Borrower agrees that the commitment fees and
servicing fee are fair and reasonable considering
the condition of the money market, the
creditworthiness of Borrower, the interest rate to
be paid, and the nature of the security for the
Loan. In the event that Borrower and Bank shall
hereafter mutually agree to extend the term of the
Bank's commitment hereunder, they may also agree
at that time as to an additional commitment fee,
if any, to be paid for such further commitment by
the Bank, but not to exceed the maximum permitted
by applicable law.
e. BORROWINGS UNDER, 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 including Section 2.8
hereof, without penalty, borrow, repay and
reborrow amounts under the Revolving Credit Note
and the Lakeshore Note, first from the Ten Million
Six Hundred Thousand Dollars ($10,600,000.00)
Note, then from the Forty Nine Million Dollars
($49,000,000.00) Note, then from the Lakeshore
Note and principal payments received shall be
applied by the Bank to the Revolving Credit Note
and the Lakeshore Note in such order and amounts
as the Bank deems appropriate in its sole
discretion. Neither the Borrower nor Lakeshore
shall be permitted to borrow, repay and reborrow
up to the principal amounts of the Lakeshore Note
unless documentary stamps tax and intangibles tax,
required by law to be paid, has been paid on the
amounts readvanced and unless the Bank has a first
in priority mortgage on the Florida property owned
by Lakeshore securing the Lakeshore Note.
By notice to the Bank in writing, Borrower shall be
entitled to terminate the Bank's commitment to make further
advances on the Revolving Credit Loan; and provided that the
Revolving Credit Loan and all interest and all other obligations
of Borrower to Bank arising hereunder shall have been paid in
full, Bank shall thereupon at Borrower's request release its
security interest in all of Borrower's Property securing the
Revolving Credit Loan.
f. 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.
g. SECONDARY FINANCING BY CBL PROPERTIES, INC.
CBL Properties, Inc. is the general partner of the
Borrower. It is also a real estate investment
trust. In the event CBL Properties, Inc. does any
secondary offering of its securities, it will
apply no less than 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.
h. CAP ON LOAN. Notwithstanding anything contained
in this Loan Agreement to the contrary, if at any
time the Bank does not have a first-in-priority
lien on the Florida property (Lakeshore Mall)
pursuant to the Lakeshore Mortgage up to the sum
of Thirty One Million Dollars ($31,000,000.00) the
Loan shall be capped at Forty Nine Million Dollars
($49,000,000.00).
SECTION 3. : REQUIRED PAYMENTS, PLACE OF PAYMENT, ETC.
a. REQUIRED REPAYMENTS. In the event that the
outstanding aggregate 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 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
advances under the Loan, the additional collateral
shall include collateral, deemed sufficient in the
Bank's discretion, to secure the Eighty Million
Dollars ($80,000,000.00) credit line limitation,
thereafter permitting Borrower to obtain
additional 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 advances under the Revolving
Credit Loan. Once calculated, the Borrowing Base shall remain
effective until the next Borrowing Base calculation date as
provided in Section 1 of this Agreement.
b. 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.
c. PAYMENT ON NON-BUSINESS DAYS. Whenever any
payment of principal, interest or fees to be made
on the indebtednesses evidenced by the Note shall
fall due on a Saturday, Sunday or public holiday
under the laws of the State of Tennessee, such
payment shall be made on the next succeeding
business day.
SECTION 4. : CONDITIONS OF LENDING
a. CONDITIONS PRECEDENT TO CLOSING AND FUNDING
INITIAL ADVANCE. The obligation of the Bank to
fund the initial Revolving Credit Loan 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:
i. This Loan Agreement.
ii. The Note.
(c) The Lakeshore Note.
(d) The CBL Mortgage, the Lakeshore Mortgage together with
a title commitment from a title insurance company acceptable to
the Bank, providing for the issuance of a mortgagee's loan policy
insuring the lien of the CBL Mortgage in form, substance and
amount satisfactory to the Bank, containing no exceptions which
are unacceptable to the Bank, and containing such endorsements as
the Bank may require; provided, however, with respect to the
Florida (Lakeshore Mall) and Mississippi (Pemberton Mall)
properties being added as collateral for the Loan, the Bank, in
its sole discretion may require only a title report and may not
require the issuance of a mortgagee's loan policy.
(e) Current draft financial statements of the Borrower in
form satisfactory to the Bank to be held by the Bank in strict
confidence.
(f) 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.
(g) 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.
(h) The opinion of counsel for Borrower and the Borrower's
general partner, that the transactions herein contemplated have
been duly authorized by all requisite corporate 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.
(i) 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.
(j) Environmental audits of the properties described in
the CBL Mortgage.
(k) Current surveys of the property subject to the CBL
Mortgage, indicating the location of all building lines,
easements (visible, reflected in the public records or otherwise)
and any existing improvements or encroachments, which survey
shall contain no set of facts objectionable to the Bank and shall
be accompanied by the Bank's usual survey certificate.
(l) Copies of the appraisals of the real estate described
in EXHIBIT "A" attached hereto.
(m) The Guaranty Agreements of the Borrower guarantying the
Lakeshore Note and of CBL Properties, Inc. guarantying the Loan.
(n) All the items and information shown on the Checklist
for Closing, a copy of which is attached hereto and marked
EXHIBIT "D".
b. CONDITIONS PRECEDENT TO ALL REVOLVING CREDIT
LOAN 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:
i. 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 advance.
ii. The Borrower and Lakeshore shall not be in
default of any of the terms and provisions hereof
or of any instrument or document now or at any
time hereafter evidencing or securing all or any
part of the Revolving Credit Loan indebtednesses.
Each of the Warranties and Representations of the
Borrower and Lakeshore, as set out in Section 5
hereof shall remain true and correct in all
material respects as of the date of such Loan
advance.
iii. Within forty-five (45) days after each July 1,
January 1, April 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.
iv. The Borrower shall have furnished to the Bank an
updated and current title report with respect to
the property or properties covered by any CBL
Mortgage held by the Bank. If any lien shall have
been placed on the property subsequent to the date
of this Agreement or the applicable CBL Mortgage,
other than liens in favor of the Bank, no
additional advances shall be made.
SECTION 5. : REPRESENTATIONS AND WARRANTIES
Borrower and Lakeshore represent and warrant that:
a. PARTNERSHIP STATUS. The Borrower is a limited
partnership duly organized, validly existing and
in good standing under the laws of the State of
Delaware; it has the power and authority to own
its properties and assets and is duly qualified to
carry on its business in every jurisdiction
wherein such qualification is necessary.
Lakeshore is a limited partnership duly organized,
validly existing and in good standing under the
laws of the State of Florida; it has the authority
to own its properties and assets and is duly
qualified to carry on its business in every
jurisdiction wherein such qualification is
necessary. Lakeshore is a wholly owned subsidiary
of the Borrower.
b. POWER AND AUTHORITY. The execution, delivery
and performance of the Loan Agreement, the Note,
the CBL Mortgage and the other loan and collateral
documents executed pursuant thereto by the
Borrower and/or Lakeshore have been duly
authorized by all requisite action and, to the
best of Borrower's and Lakeshore'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 or
Lakeshore, any provision of any indenture,
agreement or other instrument to which Borrower
and/or Lakeshore is a party, or by which
Borrower's and/or Lakeshore'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 and/or Lakeshore, except for
liens and other encumbrances provided for and
securing the indebtedness covered by this Loan
Agreement.
c. FINANCIAL CONDITION. The audited balance
sheet of Borrower and Lakeshore for the fiscal
year ended as of December 31, 1995, and the
related statement of income and changes in
financial conditions for the year then ended, and
(ii) the unaudited interim balance sheet of
Borrower and Lakeshore for September 30, 1996 and
the related statement of income and changes in
financial conditions for the period then ended, a
copy of each 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 Borrower and Lakeshore 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
Generally Accepted Accounting Principles applied
on a consistent basis maintained through the
period involved.
i. There has been no substantial adverse change in
the business, properties or condition, financial
or otherwise, of Borrower and/or Lakeshore since
September 30, 1996.
ii. The audited balance sheet of CBL Properties,
Inc. for the fiscal year ended as December 31,
1995, the unaudited balance sheet of CBL
Properties, Inc. for the period ended September
30, 1996, and the related statement of income and
changes in financial conditions for the year ended
1995 and the period ended September 30, 1996, 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
Generally Accepted Accounting Principles applied
on a consistent basis maintained through the
period involved.
iii. There has been no substantial adverse change in
the business, properties or condition, financial
or otherwise, of CBL Properties, Inc. since
September 30, 1996.
iv. 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.
d. TITLE TO ASSETS. Borrower and Lakeshore have
good and marketable title to all its properties
and assets reflected on the most recent balance
sheet furnished to Bank subject to the Permitted
Encumbrances with respect to the properties
described in the CBL Mortgages and subject to all
encumbrances, whether of record or not, with
respect to all other properties.
e. 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 and
Lakeshore threatened against or affecting Borrower
and/or Lakeshore, or any properties or rights of
Borrower and/or Lakeshore, which, if adversely
determined, would materially adversely affect the
financial or any other condition of Borrower
and/or Lakeshore except as set forth in EXHIBIT
"F" attached hereto.
f. TAXES. Borrower and Lakeshore have filed or
caused to be filed all federal, state or local tax
returns which are required to be filed, and has
paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such
taxes have become due, except as otherwise
permitted by the provisions hereof.
g. CONTRACTS OR RESTRICTIONS. In Borrower's and
Lakeshore's opinions, Borrower and Lakeshore are
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.
h. 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
and/or Lakeshore. 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.
i. PATENTS AND TRADEMARKS. Borrower and Lakeshore
possess all necessary patents, trademarks, trade
names, copyrights, and licenses necessary to the
conduct of its businesses.
j. ERISA. To the best of Borrower's and
Lakeshore'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.
k. 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 property owned by Borrower
and/or Lakeshore which is encumbered by the CBL
Mortgage and no above or underground storage tanks
exist unlawfully on such property. No private or
governmental lien or judicial or administrative
notice or action related to Hazardous Substances
or other environmental matters has been filed
against any property which, if adversely
determined, would materially adversely affect the
business, operations or the financial condition of
Borrower and/or Lakeshore except as set forth in
EXHIBIT "F" attached hereto.
l. OWNERSHIP OF BORROWER. As of the date
hereof, CBL Properties, Inc. owns an approximate
60% general partnership interest in the Borrower.
As of the date hereof, CBL & Associates, Inc. and
its affiliates, officers and key employees owns an
approximate 40% limited partnership interest in
the Borrower. As of the date hereof, CBL
Management, Inc. owns an approximate ____%
_________________ partnership interest in the
Borrower. The Borrower has no other general
partners. As of the date hereof the Borrower owns
100% of the partnership interests in Lakeshore.
5.13 OUTSTANDING BALANCE ON LAKESHORE NOTE. As of the date
hereof, the outstanding unpaid principal balance of the Lakeshore
Note is $18,000,000.00 and the undisbursed amount of the
Lakeshore Note is $2,400,000.00 and no defenses or offsets exist
against the holder of the Lakeshore Note or otherwise.
SECTION 6. : AFFIRMATIVE COVENANTS OF BORROWER AND LAKESHORE
Borrower and Lakeshore covenant and agree that from the date
hereof and until payment in full of the principal of and interest
on indebtednesses evidenced by the Note and the Lakeshore Note,
unless the Bank shall otherwise consent in writing, such consent
to be at the discretion of the Bank, Borrower and Lakeshore will:
a. 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.
b. 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.
c. INSURANCE. With respect to all of the
Property which serves as collateral for the Loan,
at all times maintain in some company or companies
(having a Best's rating of A:XI or better)
approved by Bank:
(1) 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;
(2) Business interruption insurance and/or loss
of rents insurance in a minimum amount
specified by Bank, with loss payable clause
in favor of Bank;
(3) Hazard insurance insuring Borrower's and
Lakeshore'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 Mortgage; and
(4) Such other insurance as the Bank may, from
time to time, reasonably require by notice in
writing to the Borrower and/or to Lakeshore.
i. 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 and/or Lakeshore. The
Borrower and Lakeshore will deliver to Bank
original or duplicate policies of such insurance,
or satisfactory certificates of insurance, and, as
often as Bank may reasonably request, a report of
a reputable insurance broker with respect to such
insurance. Any insurance proceeds received by
Bank shall be applied upon the indebtednesses,
liabilities, and obligations of the Borrower to
the Bank (whether matured or unmatured) or, at
Bank's option, released to the Borrower or
Lakeshore, as the case might be.
d. OBLIGATIONS, TAXES AND LIENS. Pay all of its
indebtednesses and obligations in accordance with
normal terms and practices of its business and pay
and discharge or cause to be paid and discharged
all taxes, assessments, and governmental charges
or levies imposed upon it or upon any of its
income and profits, or upon any of its properties,
real, personal or mixed, or upon any part thereof,
before the same shall become in default, as well
as all lawful claims for labor, materials, and
supplies which otherwise, if unpaid, might become
a lien or charge upon such properties or any part
thereof; provided, however, that 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. In addition, Borrower
and Lakeshore shall immediately pay, upon the
request of the Bank, all mortgage and/or
intangible taxes and/or penalties payable to
government officials with respect to any CBL
Mortgage and/or the Note or, if Bank has elected
to pay same, Borrower shall immediately reimburse
Bank therefor upon the request of the Bank;
provided, however Borrower shall not be required
to pay or reimburse so long as Borrower is
contesting the tax and/or penalties in good faith
and through continuous and appropriate
proceedings.
e. 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 and Lakeshore,
respectively, an unqualified audit as of the close
of such fiscal year of Borrower and Lakeshore,
including a balance sheet and statement of income
and surplus of Borrower and Lakeshore together
with the unqualified audit report and opinion of
Xxxxxx Xxxxxxxx Company, 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 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 properties described in
the CBL Mortgage.
f. ADDITIONAL INFORMATION. Furnish such other
information regarding the operations, business
affairs and financial condition of the Borrower
and/or Lakeshore as Bank may reasonably request,
including but not limited to written confirmation
of requests for loan advances, true and exact
copies of its books of account and tax returns,
and all information furnished to the owners of its
partnership interests, or any governmental
authority, and permit the copying of the same and
Bank agrees that all such information shall be
maintained in strict confidence. Provided,
however, the Borrower and Lakeshore shall not be
required to divulge the terms of other financing
arrangements with other lending institutions if
and to the extent Borrower and/or Lakeshore is
prohibited by contractual agreement with such
lending institutions from disclosing such
information with the exception that Borrower and
Lakeshore shall promptly notify Bank in writing of
all defaults, if any, which exist beyond any
applicable cure periods and the nature thereof,
which occur in connection with such financing
arrangements and which defaults would constitute
an Event of Default hereunder. Borrower and
Lakeshore shall not enter into any such
contractual arrangement whereby the Borrower or
Lakeshore is prohibited from disclosing such
financial arrangements, without providing Bank
with written notice of the nature of such
prohibitions. In addition, Borrower and Lakeshore
shall not enter into any such arrangement while
any Event of Default hereunder exists beyond any
applicable cure periods.
g. RIGHT OF INSPECTION. Permit any person
designated by the Bank, at the Bank's expense, to
visit and inspect any of the properties, books and
financial reports of the Borrower and Lakeshore
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 and/or
Lakeshore'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.
h. ENVIRONMENTAL LAWS. Maintain at all times all
of Borrower's and Lakeshore's property described
in the CBL Mortgage 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.
i. NOTICE OF ADVERSE CHANGE IN ASSETS. At the time
of Borrower's and/or Lakeshore's first knowledge
or notice, immediately notify the Bank of any
information that may adversely affect in any
material manner the properties of the Borrower
and/pr Lakeshore which are subject to the CBL
Mortgage.
j. MINIMUM NET WORTH. Borrower shall not permit
Net Worth at any time to be less than an amount
equal to $410,000,000.00 plus ninety percent (90%)
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.
k. 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 .60 to 1.00.
l. APPRAISALS. Deliver to the Bank upon the Bank's
request but, for each property, no more frequently
than once per every eighteen (18) month period,
reappraisals of the property or properties
described in the CBL Mortgage.
6.13 INTEREST COVERAGE RATIO. Borrower shall not permit,
as of the last day of any fiscal quarter, the Interest Coverage
Ratio to be less than 2.00 to 1.00.
6.14 DEBT COVERAGE RATIO. Borrower shall not permit, as of
the last day of any fiscal quarter of Borrower, the Debt Coverage
Ratio to be less than 1.75 to 1.00.
6.15 AGREEMENTS REGARDING LAKESHORE NOTE AND LAKESHORE
MORTGAGE. So long as no Event of Default then exists or with
notice or lapse of time would exist, upon the request of the
Borrower, but in the Bank's discretion, the Bank shall sell to
the Borrower and/or the Borrower's designated subsidiary, the
Lakeshore Note and/or the Lakeshore Mortgage for the balance due
under the Lakeshore Note (the "Lakeshore Principal Balance") plus
accrued interest.
SECTION 7. : NEGATIVE COVENANTS OF BORROWER AND LAKESHORE
Borrower and Lakeshore covenant and agree that at all times
from and after the Closing Date, unless the Bank shall otherwise
consent in writing, such consent to be at the discretion of the
Bank, Borrower and Lakeshore will not, either directly or
indirectly:
a. INDEBTEDNESS. Incur, create, assume or permit
to exist any indebtedness or liability, secured by
any of the properties described in the CBL
Mortgage, (except with respect to the Borrower
only) for indebtedness, which is subordinate in
all respects to the indebtedness evidenced by the
Note, which indebtedness does not exceed Two
Hundred Fifty Thousand Dollars ($250,000.00) in
the aggregate per property and is used for
renovation of the property or properties described
in the CBL Mortgage.
b. MORTGAGES, LIENS, ETC. Create, assume or suffer
to exist any mortgage, pledge, lien, charge or
other encumbrance of any nature whatsoever on any
of the properties subject to the CBL Mortgage
except:
i. Liens in favor of the Bank securing payment of
the Note and/or the Lakeshore Note;
ii. Existing liens securing indebtednesses permitted
under Section 7.1 above;
iii. Permitted Encumbrances (as defined at
Section 1); and
iv. Liens securing indebtedness permitted under
Section 7.1 above.
c. 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 and
Lakeshore 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.
d. 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.
e. 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 and/or Lakeshore, 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 and/or Lakeshore; 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.
f. 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 Properties Management, Inc.
g. 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 $175,000,000.00 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 $175,000,000.00
(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 $175,000,000.00 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 Lakeshore 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 expense on such loan; and (f)
Borrower has delivered all certificates required by this Loan
Agreement.
h. LIMITATIONS ON ACTIONS AGAINST BANK AND
PARTICIPANTS. Take any action against:
(a) Bank, if any Participant fails or refuses to fund for
the account of Borrower and/or Lakeshore or to Bank for the
benefit of Borrower and/or Lakeshore, such Participant's
respective Proportionate Share and such failure or refusal has
not been caused by Bank's breach of this Loan Agreement; or
(b) any Participant, if Bank fails or refuses to fund for
the account of Borrower and/or Lakeshore any Participant's
Proportionate Share, to the extent such Participant's
Proportionate Share has been received by Bank; or
(c) any Participant, if Bank fails or refuses to fund for
the account of Borrower and/or Lakeshore Bank's Proportionate
Share and such failure has not been caused by such Participant's
breach of this Loan Agreement or the Participation Agreement.
Borrower's and Lakeshore's cause of action under this Loan
Agreement, if any, for failure to fund being directly against the
lender which fails or refuses to fund, and then only if such
failure or refusal to fund would constitute a breach of this Loan
Agreement.
i. 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/or to exceed the
following percentages of Borrower's Net Worth:
(1) 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
one of its Subsidiaries is the seller, the
buyer is not an Affiliate of Borrower and (D)
out-parcels held for lease or sale) exceeds
ten percent (10%) of Net Worth;
(2) 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 Xxx Xxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx) exceeds ten percent
(10%) of Net Worth;
(3) 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;
(4) Mortgages, such that the aggregate
principal amount secured by Mortgages
acquired by Borrower after the Effective Date
exceeds ten percent (10%) of Net Worth;
(5) 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 Agent, not less
than thirty (30) days prior to the date such acquisition is
consummated, (i) all information related to such acquisition as
is reasonably requested by the Agent 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
Sections 6.8, 6.11, 6.12, 6.13, 6.14, 6.15, 6.17 or 6.18 of the
loan documents which exist between Borrower and Agent.
SECTION 8. : EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following
shall occur:
a. PAYMENT OF PRINCIPAL, INTEREST TO BANK. The
Borrower and/or Lakeshore defaults in the payment
as and when due of principal or interest on any
Note or the Lakeshore 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 and/or Lakeshore
thereof; or the Borrower and/or Lakeshore defaults
in the payment when due of any other recourse
indebtednesses, 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
b. PAYMENT OF OBLIGATIONS TO OTHERS. The Borrower
and/or Lakeshore 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/or Lakeshore;
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 and/or Lakeshore, the Borrower and
Lakeshore 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; or, (b) is
being contested by the Borrower and/or Lakeshore
in good faith through appropriate proceedings
acceptable to Bank; or
c. PERFORMANCE OF OBLIGATIONS TO BANK. The
Borrower and/or Lakeshore 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 and/or Lakeshore, or, if such default is
incapable of cure within such thirty (30) day
period, Borrower and/or Lakeshore fails to
diligently, continuously and in good faith pursue
such cure to completion; or the Borrower and/or
Lakeshore 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
and/or Lakeshore, as the case may be, or, if such
default is incapable of cure within such thirty
(30) day period, Borrower and/or Lakeshore fails
to diligently, continuously and in good faith
pursue such cure to completion; or
d. 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
Lender 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 and/or Lakeshore in good
faith through appropriate proceedings, such
default shall not constitute a default hereunder;
or
e. REPRESENTATION OR WARRANTY. Any representation
or warranty made by the Borrower and/or Lakeshore
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
f. BANKRUPTCY, ETC. The Borrower or Lakeshore 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 or Lakeshore or CBL Properties, Inc., in
which an order for relief is entered against
Borrower or CBL Properties, Inc. or which remains
undismissed for a period of ninety (90) days or
more; or Borrower or Lakeshore 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 or Lakeshore or CBL
Properties, Inc. shall generally not pay its debts
as such debts become due; or
g. CONCEALMENT OF PROPERTY, ETC. The Borrower or
Lakeshore 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
h. 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) Xxx Xxxxxx, or (d) Xxxxxxx X.
Xxxxxxxx, 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
i. CHANGE IN OWNERSHIP. CBL & Associates, Inc.,
its affiliates, officers and key employees shall
have, through sale or transfer, reduced their
aggregate partnership interest in Borrower (which,
for this purpose, shall include a proportionate
share of CBL Properties, Inc.'s partnership
interest in Borrower equal to their proportionate
shareholding in CBL Properties, Inc.) to less than
50% of such partnership interests owned by them on
November 7, 1993. Provided, however, if the
change in ownership occurs as a result of actions
taken by Borrower in compliance with Section 2.7
of this Loan Agreement, no such change of
ownership shall result in an Event of Default
hereunder; or
j. 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
and/or Lakeshore shall deny it has any or further
liability under this Loan Agreement or the Note,
respectively; or
k. COVENANTS. The Borrower or Lakeshore or any
grantor under any CBL Mortgage defaults in the
performance or observance of any covenant,
agreement or undertaking on its part to be
performed or observed, contained herein, in the
Security Agreement, CBL Mortgage or in any other
instrument or document which now or hereafter
evidences or secures all or any part of the loan
indebtedness which default shall continue for more
than thirty (30) days following the mailing of
notice from Bank to Borrower and/or Lakeshore
and/or such grantor under any CBL Mortgage
thereof; or
l. BREACH OF SECTION 7.8 OF THIS LOAN AGREEMENT.
The Borrower and/or Lakeshore shall fail to
observe or perform its obligations to the Bank,
and/or any Participant under Section 7.8 of this
Loan Agreement;
m. PLACEMENT OF LIENS ON PROPERTY. The Borrower or
any other grantor of a CBL Mortgage shall, without
the prior written consent of the Bank, create,
place or permit to be created or placed, or
through any act or failure to act, acquiesce in
the placing of, or allow to remain, any mortgage,
deed of trust, pledge, lien (statutory,
constitutional or contractual), or security
interest, encumbrance or charge on, or conditional
sale or other title retention agreement,
regardless of whether same are expressly
subordinate to the liens of the CBL Mortgage, with
respect to the property described in the Lakeshore
Mortgage or any other CBL Mortgage.
8.14 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 record the
Lakeshore Mortgage (New); and the Bank may, at its option,
thereupon declare the entire unpaid principal balances of the
Note of Borrower and the Lakeshore Note, all interest accrued and
unpaid thereon and all other amounts payable under this Loan
Agreement to be immediately due and payable for all purposes, and
may exercise all rights and remedies available to it under the
CBL Mortgage, any other instrument or document which secures the
Note and/or the Lakeshore Note, or available at law or in equity.
All such rights and remedies are cumulative and nonexclusive, and
may be exercised by the Bank concurrently or sequentially, in
such order as the Bank may choose.
SECTION 9. : MISCELLANEOUS
a. AMENDMENTS. The provisions of this Loan
Agreement, the Note or the Lakeshore Note or any
instrument or document executed pursuant hereto or
securing the indebtednesses may be amended or
modified only by an instrument in writing signed
by the parties hereto.
b. 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 and/or
Lakeshore, to it at c/o CBL Properties, Inc., One
Park Place, 0000 Xxx Xxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: President; if to the
Bank, to it at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx; 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.
c. 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.
d. INDEMNIFICATION. Borrower and Lakeshore agree
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.
e. 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.
f. GOVERNING LAW. This Loan Agreement shall be
governed and construed in accordance with the laws
of the State of Tennessee; except (a) that the
provisions hereof which relate to the payment of
interest shall be governed by (i) the laws of the
United States or, (ii) the laws of the State of
Tennessee, whichever permits the Bank to charge
the higher rate, as more particularly set out in
the Note, and (b) to the extent that the Liens in
favor of the Bank, the perfection thereof, and the
rights and remedies of the Bank with respect
thereto, shall, under mandatory provisions of law,
be governed by the laws of a state other than
Tennessee.
g. 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.
h. 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.
i. 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.
j. INTEREST LIMITATIONS. 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.
i. 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/or Lakeshore 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 and/or
Lakeshore, 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 and/or Lakeshore that is in
conflict with the provisions of this paragraph.
The Note and the Lakeshore Note shall be governed and
construed according to the statutes and laws of the State of
Tennessee from time to time in effect, except to the extent that
Section 85 of Title 12 of the United States Code (or other
applicable federal statue) may permit the charging of a higher
rate of interest than applicable state law, in which event such
applicable federal statute, as amended and supplemented from time
to time shall govern and control the maximum rate of interest
permitted to be charged hereunder; it being intended that, as to
the maximum rate of interest which may be charged, received, and
collected hereunder, those applicable statutes and laws, whether
state or federal, from time to time in effect, which permit the
charging of a higher rate of interest, shall govern and control;
provided, always, however, that in no event and under no
circumstances shall the Borrower and/or Lakeshore be liable for
the payment of interest in excess of the maximum rate permitted
by such applicable law, from time to time in effect.
k. 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 and/or Lakeshore or has
power over the daily management functions and
operating decisions made by the Borrower and/or
Lakeshore.
l. LOAN REVIEW; EXTENSIONS OF TERMINATION DATE;
CONTINUING SECURITY. The specific Termination
Date of Revolving Credit Loan mentioned in Article
One may be extended for additional periods of one
(1) year. On each June 1 hereafter, so long as
the Loan remains unpaid, Bank shall review the
performance of the Loan. If the Bank deems
performance of the Loan acceptable, it will renew
the Loan for one (1) year from the then existing
Termination Date of Revolving Credit Loan. If
Bank deems performance of the Loan not acceptable,
Bank shall not be obligated to extend the
Termination Date of Revolving Credit Loan;
however, the Borrower shall then have the right to
repay the Loan pursuant to the repayment
provisions contained in the Note. Assessment of
performance and the decision whether to extend the
Termination Date of Revolving Credit Loan shall be
solely within Bank's discretion. The Bank will not
deem the performance of the Loan acceptable unless
and until the Borrower provides to the Bank, among
other things, updated title commitments with
respect to all properties covered by any CBL
Mortgage, which title commitments must be in form
and substance acceptable to the Bank and must
contain no exceptions unacceptable to the Bank.
Bank shall notify Borrower of the results of its
review of the Loan no later than eleven (11)
months prior to the then effective Termination
Date of the Revolving Credit Loan. If Bank elects
not to renew the Loan, Bank shall not perform or
cause to be performed, except at Bank's expense,
any inspections, appraisals, surveys or similar
items between: (a) the date notice thereof is
given Borrower or the Termination Date, whichever
first occurs, and (b) the date the Note is repaid
as provided herein.
i. Upon the specific Termination Date of Revolving
Credit Loan so fixed in Article One, or in the
event of the extension of this Agreement to a
subsequent Termination Date (when no effective
extension is in force), the Revolving Credit Loan
and all other extensions of credit (unless sooner
declared to be due and payable by the Bank
pursuant to the provisions hereof), and subject to
Borrower's election as set forth in subparagraph
(a) above, shall become due and payable for all
purposes. Until all such indebtednesses,
liabilities and obligations secured by the CBL
Mortgage are satisfied in full, such termination
shall not affect the security interest granted to
Bank pursuant to the CBL Mortgage, nor the duties,
covenants, and obligations of the Borrower therein
and in this Agreement; and all of such duties,
covenants and obligations shall remain in full
force and effect until the Revolving Credit Loan
and all obligations under this Loan Agreement have
been fully paid and satisfied in all respects.
m. 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, 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 indebtednesses.
n. 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.
o. 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 and/or
Lakeshore, 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/or Lakeshore 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.
p. JOINDER OF CBL PROPERTIES, INC. CBL Properties,
Inc. joins herein for the purpose of acknowledging
and consenting to the terms and provisions of
Section 2.7 hereof.
q. BANK'S CONSENT. Except as otherwise expressly
provided herein, in any instance hereunder where
Bank's approval or consent is required or the
exercise of its judgment is required, the granting
or denial of such approval or consent and the
exercise of such judgment shall be within the sole
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. Bank may consult with counsel, and the
written advice or opinion of such counsel shall be
full and complete authorization and protection in
respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance
thereon.
r. VENUE OF ACTIONS. As an integral part of the
consideration for the making of the loan, it is
expressly understood and agreed that no suit or
action shall be commenced by the Borrower,
Lakeshore, CBL Properties, Inc., by any guarantor,
or by any successor, personal representative or
assignee of any of them, with respect to the loan
contemplated hereby, or with respect to this Loan
Agreement or any other document or instrument
which now or hereafter evidences or secures all or
any part of the loan indebtedness, other than in a
state court of competent jurisdiction in and for
the County of the State in which the principal
place of business of the Bank is situated, or in
the United States District Court for the District
in which the principal place of business of the
Bank is situated, and not elsewhere. Nothing in
this paragraph contained shall prohibit Bank from
instituting suit in any court of competent
jurisdiction for the enforcement of its rights
hereunder or in any other document or instrument
which evidences or secures the loan indebtedness.
s. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO
THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR
(b) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR
THE TRANSACTIONS RELATED HERETO OR THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING; AND EACH PARTY HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
t. CONFLICT. In the event of any conflict between
the provisions hereof and any other loan document
during the continuance of this Agreement
(including but not limited to the Construction
Loan Agreement and any other documents received by
the Bank via assignment in connection with the
Lakeshore Mall), the provisions of this Agreement
shall control.
u. PARTICIPATION AGREEMENT. The Borrower and
Lakeshore acknowledge that the Participation
Agreement exists and that the Bank is obligated,
subject to the terms and conditions hereof, to
fund Eighty Million Dollars ($80,000,000.00) to
the Borrower but that of that amount KeyBank
National Association, formerly Society National
Bank and AmSouth Bank are obligated, subject to
the terms and conditions of the Participation
Agreement, to fund Twenty Two Million Five Hundred
Thousand Dollars ($22,500,000.00) each to the Bank
and PNC Bank, Kentucky, Inc. is obligated, subject
to the terms and conditions of the Participation
Agreement, to fund Twelve Million Five Hundred
Thousand and NO/100 Dollars ($12,500,000.00) to
the Bank.
IN WITNESS WHEREOF, the Borrower, Lakeshore, the Bank and
CBL Properties, Inc. have caused this Agreement to be executed by
their duly authorized officers and/or partner, all as of the day
and year first above written.
CBL & ASSOCIATES LIMITED
PARTNERSHIP
BY: CBL & ASSOCIATES PROPERTIES,
INC., Its Sole General Partner
By:________________________________
Xxxx X. Xxx
Title:___Executive Vice President_______
BORROWER
LAKESHORE/SEBRING LIMITED
PARTNERSHIP
BY: CBL & ASSOCIATES LIMITED
PARTNERSHIP, its sole General
Partner
BY: CBL & ASSOCIATES PROPERTIES,
INC., its sole General Partner
By:__________________________
Xxxx X. Xxx
Title:____Executive Vice President_____
LAKESHORE
CBL & ASSOCIATES PROPERTIES,
INC.
By:________________________________
Xxxx X. Xxx
Title:__Executive Vice President________
GUARANTOR
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:________________________________
Xxxxxxx X. Xxxxxx, Senior Vice
President
