Exhibit 10.20.1
AMENDED AND RESTATED LOAN AGREEMENT
(This Amended and Restated Loan Agreement amends, restates, and replaces that
certain Amended and Restated Loan Agreement dated as of June 30, 2004
between the undersigned Borrower, Lakeshore, Lakes Mall and the Bank.)
THIS AMENDED AND RESTATED LOAN AGREEMENT ("Loan Agreement") is made as
of December 30, 2004, to be effective December 30, 2004 by and between CBL &
ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, whose address is
CBL Center, Suite 500, 0000 Xxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000 ("Borrower"), and LAKESHORE/SEBRING LIMITED PARTNERSHIP, a Florida
limited partnership, whose address is the same as the Borrower's described above
("Lakeshore") and THE LAKES MALL, LLC, a Michigan limited liability company
whose address is the same as the Borrower's described above ("Lakes Mall"), and
FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the statutes of the United States of America, with
a principal office at 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 and to Lakes Mall, 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, Compass Bank, Amsouth Bank of Tennessee
and Branch Banking and Trust Company, all as participants in the Loan have
previously agreed to make certain portions of such loan and advances on the
terms and conditions previously set forth and now on the terms and conditions
herein set forth.
This Loan Agreement is currently being amended to: (a) change the
Capitalized Value cap rates for Mall Projects from 8.625% to 8.25%; (b) to
change the definition of Total Obligations and (c) to extend the maturity date
of the Loan to June 1, 2006.
NOW, THEREFORE, incorporating the Recitals of Fact set forth above and
in consideration of the mutual agreements herein contained, the parties agree as
follows:
AGREEMENTS
SECTION 1: DEFINITIONS AND ACCOUNTING TERMS
1.1 Certain Defined Terms. For the purposes of this Loan Agreement, the
following terms shall have the following meanings (such meanings to be
applicable equally to both the singular and plural forms of such terms) unless
the context otherwise requires:
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"Adjusted Loan Amount" means 100% of the combined Net Operating Income
from the properties described in the CBL Mortgage (except the CBL Mortgage on
The Lakes Mall which shall be included at 90% of the Net Operating Income) 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 .1042.
"Affiliate" means as to any Person, any other Person which, directly or
indirectly, owns or controls, on an aggregate basis including all beneficial
ownership and ownership or control as a trustee, guardian or other fiduciary, at
least ten percent (10%) of the outstanding shares of Capital Stock or other
ownership interest having ordinary voting power to elect a majority of the board
of directors or other governing body (irrespective of whether, at the time,
stock of any other class or classes of such corporation shall have contingency)
of such Person or at least ten percent (10%) of the partnership or other
ownership interest of such Person; or which controls, is controlled by or is
under common control with such Person. For the purposes of this definition,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of management and policies, whether through the ownership
of voting securities, by contract or otherwise. Notwithstanding the foregoing, a
pension fund, university or other endowment funds, mutual fund investment
company or similar fund having a passive investment intent owning such a ten
percent (10%) or greater interest in a Person shall not be deemed an Affiliate
of such Person unless such pension, mutual, endowment or similar fund either (i)
owns fifty percent (50%) or more of the Capital Stock or other ownership
interest in such Person, or (ii) has the right or power to select one or more
members of such Person's board of directors or other governing body.
"Applicable Law" means, in respect of any Person, all provisions of
statutes, rules, regulations and orders of any governmental authority applicable
to such Person, and all orders and decrees of all courts and arbitrators in
proceedings or actions in which the person in question is a party.
"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 Base Rate existing as of the date hereof is five and
twenty five hundredths percent (5.25%) 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
Loan 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 or $80,000,000.00 whichever is less.
"Business Day" means a banking business day of the Bank and which is
also a day on which dealings are carried on in the interbank eurodollar market.
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"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" and "Capitalized Value (Total)" shall mean the
total of (a), (b) and (c):
(a) with respect to Non-Mall Projects, an amount, calculated as of any period,
equal to the quotient of (i) the sum of (A) Borrower's Funds From Operations
during the most recent quarter end (not including Funds from Operations from
Mall Projects), minus (B) Net Operating Income (loss) from any Newly Acquired
Property acquired during the quarter (not including Mall Projects), minus (C)
preferred dividends paid by Borrower, plus (D) the Interest Expense (not
including Interest Expense from Mall Projects) used in calculating Borrower's
Funds From Operations pursuant to clause (A) above (all annualized) and (ii)
9.75%.
(b) with respect to Mall Projects, an amount, calculated as of any period, equal
to the quotient of (i) the sum of (A) Borrower's Funds From Operations during
the most recent quarter end (from Mall Projects only), minus (B) Net Operating
Income (loss) from any Newly Acquired Property acquired during the quarter (from
Mall Projects only), plus (C) the Interest Expense (from Mall Projects only)
used in calculating Borrower's Funds From Operations pursuant to clause (A)
above (all annualized) and (ii) 8.25%.
(c) plus for that period the book value of any Newly Acquired Property acquired
during the quarter, evidenced by the supporting financial information to be
furnished by the Borrower pursuant to Section 6.5(d) hereof.
"CBL Holdings I" means CBL Holdings I, Inc., a Delaware corporation and
the sole general partner of Borrower.
"CBL Holdings II" means CBL Holdings II, Inc., a Delaware corporation
and a limited partner of Borrower.
"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, Walnut Square Associates Limited Partnership, Lakeshore/Sebring
Limited Partnership, Vicksburg Mall Associates, Ltd., The Lakes Mall, LLC and
Towne Mall and/or any other entity related to or owned by Borrower and/or CBL &
Associates Properties, Inc. and/or CBL Holdings I, Inc. in favor of Bank
covering their interest in the properties described in Exhibit "A," attached
hereto and made a part hereof.
"CBL Properties, Inc." means CBL & Associates Properties, Inc., a
Delaware corporation and a qualified public REIT and formerly until March 31,
1997 the sole general partner of Borrower.
"Closing Date" means the date of this Loan Agreement set out in the
first paragraph of this Loan Agreement.
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"Consolidated" means, as to any calculation hereunder, that such
calculation shall be made on a consolidated basis for Borrower, CBL Holdings,
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 Holdings, on a consolidated basis for CBL
Holdings and its Subsidiaries, (c) in respect of CBL Properties, Inc., on a
consolidated basis for CBL Properties, Inc. and its Subsidiaries, and (d) 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 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 Consolidated basis in accordance with
GAAP.
"Debt Service" means, for any period, on a consolidated basis, 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 consolidated Indebtedness of Borrower, CBL Properties,
Inc. and their respective Subsidiaries during such period. For purposes of this
definition, unscheduled voluntary principal payments, voluntary prepayments and
final balloon payments are excluded from determining regularly scheduled
principal payments. 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.
"Default Rate" means the rate of interest described in the Note, which
shall accrue at the Bank's option after the occurrence of an Event of Default
which remains uncured after any applicable grace period.
"EBITDA" means, for any period, the sum of (i) consolidated Net Income
of Borrower, CBL Properties, Inc. and their respective Subsidiaries for such
period, plus (ii) depreciation and amortization expense for consolidated
Property of Borrower, CBL Properties, Inc. and their respective Subsidiaries for
such period, plus (iii) depreciation and amortization expense related to the
earnings of Unconsolidated Affiliates of Borrower, CBL Properties, Inc. and
their respective Subsidiaries, plus (iv) Interest Expense for consolidated
Property of Borrower, CBL Properties, Inc. and their respective Subsidiaries for
such period, plus (vi) Interest Expense related to the earnings of
Unconsolidated Affiliates of Borrower, CBL Properties, Inc. and their respective
Subsidiaries, plus (vi) earnings attributable to any minority ownership interest
in the operating partnership, i.e., the Borrower, plus (vii) loss on
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extinguishment of debt, or minus gain on extinguishment of debt, plus (viii)
income tax expense in respect of such period, plus (ix) 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, or minus 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, plus (x) expenses (not to
exceed $1,000,000.00) related to write-off of development costs concerning
abandoned projects, determined in each case on a Consolidated basis in
accordance with GAAP. Notwithstanding any language above to the contrary, all
determinations of EBITDA shall be made without duplication and all calculations
relative to unconsolidated properties or affiliates shall only include
Borrower's, CBL Properties, Inc.'s and their respective Subsidiaries' pro rata
portion thereof.
"Effective Date," which definition is used and only applies within
Section 7.9 hereof, means the date the Credit Agreement 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 all as amended from time to time.
"Event of Default" has the meaning assigned to that phrase in Section
8.
"Funds from Operations" means, as to any period, on a consolidated
basis, 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 from consolidated and unconsolidated property,
plus depreciation and amortization from property included in discontinued
operation, plus (c) to the extent not included in clause (a) above, gain (loss)
on the sales of outparcels made in the ordinary course of business, minus (d)
Minority investors share of depreciation and amortization of certain property,
minus (e) Minority investors share of income from certain property, minus (f)
depreciation and amortization from non-real estate property, plus (g) income
from operations of Unconsolidated Affiliates and discontinued operations
determined in each case 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 Loan Agreement. All calculations
made for the purposes of determining compliance with this Loan 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 SEC.
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"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 of 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 or 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 Consolidated 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
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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, to the extent they are not capitalized,
and (b) one hundred percent (100%) of any interest expense paid, 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 Xxxxx Fargo,
later assigned by Xxxxx Fargo 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 Xxxxx Fargo later assigned to Shopping Center
Finance Corp. and subsequently assigned to the Bank, as amended from time to
time.
"Lakes Mall Note" means the promissory note from Lakes Mall in the
original principal sum of $38,100,000.00 payable to U.S. Bank National
Association later assigned on March 18, 2002 to Mortgage Holdings, LLC and later
assigned to the Bank, as amended from time to time.
"Lakes Mall Mortgage" means the Michigan Mortgage from Lakes Mall in
favor of U.S. Bank National Association later assigned on March 18, 2002 to
Mortgage Holdings, LLC and later assigned 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 and Lakes Mall Note which were purchased by the
Bank.
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"Loan Agreement" means this Loan Agreement between the Borrower,
Lakeshore, Lakes Mall and the Bank, and any modifications, amendments, or
replacements thereof, in whole or in part.
"Mall Projects" means the real estate and improvement owned by the
Borrower and/or it Affiliates that is in the form of an enclosed regional retail
shopping mall that includes two (2) or more anchor stores.
"Management Fee" means four percent (4%) of all base and percentage
rent earned by the Borrower from Non-Mall Projects for the period in question,
plus three percent (3%) of all base and percentage rent earned by the Borrower
for Mall Projects for the period in question.
"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.
"Newly Acquired Property" means Property acquired by Borrower, CBL
Properties, Inc. and/or their respective Subsidiaries during any fiscal quarter
for which compliance with financial covenants is being tested.
"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 Consolidated 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) total revenues received, minus (b) total cash expenses (including
management fees) before interest, depreciation, amortization and items
capitalized under GAAP.
"Net Worth" means, with respect to Borrower, CBL Properties, Inc. and
their Subsidiaries as of any date, the sum of (a) total assets, minus (b) total
liabilities, plus (c) accumulated depreciation, plus (d) without duplication,
any minority ownership interest in the operating partnership, i.e., the
Borrower, minus (e) all intangible assets, determined on a Consolidated basis in
accordance with GAAP.
"Non-Mall Projects" means the real estate and improvements owned by the
Borrower and/or it Affiliates that is in the form of a retail shopping center
that is not a Mall Project.
"Note" means the Revolving Credit 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 Ten Million Nine Hundred
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Thousand and No/100 Dollars ($10,900,000.00) (the "$10,900,000.00 Note"),
respectively, the Lakeshore Note and the Lakes Mall 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, Compass Bank. AmSouth
Bank of Tennessee and Branch Banking and Trust Company, 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 and the letters of credit issued hereunder which shall be
equal to Twenty Two Million Five Hundred Thousand and NO/100 Dollars
($22,500,000.00) divided by Eighty Million Dollars ($80,000,000.00).
"Participant's Proportionate Share (BB&T)" means Branch Banking and
Trust Company's (or any successor to such bank's interest in the Loan) undivided
participating interest in the Loan and the letters of credit issued hereunder
which shall be equal to Fifteen Million and NO/100 Dollars ($15,000,000.00)
divided by Eighty Million Dollars ($80,000,000.00).
"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 and the letters of credit issued hereunder which shall be equal to
Seven Million Five Hundred Thousand and NO/100 Dollars ($7,500,000.00) divided
by Eighty Million Dollars ($80,000,000.00).
"Participant's Proportionate Share (Compass)" means Compass Bank's, (or
any successor to such bank's interest in the Loan) undivided participating
interest in the Loan and the letters of credit issued hereunder which shall be
equal to Twelve Million Five Hundred Thousand and NO/100 Dollars
($12,500,000.00) divided by Eighty Million Dollars ($80,000,000.00).
"Participants' Proportionate Share" means Participant's Proportionate
Share (KeyBank), Participant's Proportionate Share (Compass), Participant's
Proportionate Share (AmSouth) and Participant's Proportionate Share (BB&T).
"Participation Agreement" means that certain Participation Agreement
entered into of even date herewith among Bank, KeyBank National Association,
Compass Bank, AmSouth Bank of Tennessee and Branch Banking and Trust Company
and/or any other participants in the Loan, as amended from time to time.
"Permitted Encumbrances" shall mean and include:
(a) liens for taxes, assessments or similar governmental charges not
in default or being contested in good faith by appropriate
proceedings;
(d) 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;
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(e) 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;
(f) 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;
(g) such other liens and encumbrances to which Bank shall consent in
writing; and
(h) 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 Bank, any other Person. "Project" shall also 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.
"Related Entities" or "Related Entity" means any entity which executed
a promissory note, guaranty or mortgage, deed of trust, deed to secure debt or
any other collateral or security documents in connection with or as a part of
the Loan.
"Reserved Construction Loan" shall have the meaning shown in
Section 7.7. 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,
Lakeshore's and Lakes Mall'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 and the Lakes Mall Note.
"SEC" shall mean the United States Securities and Exchange Commission.
"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
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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 Loan 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, 2006, 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 Consolidated basis in accordance with GAAP,
minus (e) accrued interest; provided however Total Obligations shall not include
the items included in the line item "Accounts Payable and Accrued Liabilities"
under the category of "Liabilities and Shareholder's Equity" in the Consolidated
Balance Sheets included in CBL Properties, Inc.'s Form 10-Q or Form 10-K (or
their equivalent) filed with the Securities and Exchange Commission (or any
governmental authority substituted therefor).
"Towne Mall Mortgage" means the Ohio Mortgage from Towne Mall in favor
of the Bank, as amended from time to time.
"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.
"Xxxxx Fargo" means Xxxxx Fargo Realty Advisors Funding, Incorporated,
a Colorado corporation.
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1.2 Accounting Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
required to be delivered from time to time pursuant to Section 6.5 hereof.
SECTION 2: COMMITMENT; FUNDING AND TERMS OF REVOLVING CREDIT LOAN
2.1 The Commitment. Subject to the terms and conditions herein set out, Bank
agrees and commits to make loan advances to and issue letters of credit for the
account of the Borrower, Lakeshore and Lakes Mall 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.
2.2 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, the Lakeshore Note
or the Lakes Mall 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. LAKES MALL ACKNOWLEDGES AND AGREES
THAT NO ADVANCES SHALL BE MADE DIRECTLY TO LAKES MALL EXCEPT UPON THE EXPRESS
WRITTEN CONSENT OF THE BORROWER RECEIVED BY THE BANK PRIOR TO THE ADVANCE BEING
MADE.
2.3 The Note and Interest. The Revolving Credit Loan shall be evidenced by two
(2) promissory notes of the Borrower, one (1) promissory note of Lakeshore and
one (1) promissory note of Lakes Mall, 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, the
Lakeshore Note and the Lakes Mall 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 January 1, 2005. The Bank shall mail to the Borrower a billing notice
at least ten (10) days prior thereto setting forth the payment amount next due,
but any failure to send such notice shall not relieve the Borrower, Lakeshore or
Lakes Mall of the obligation to pay accrued interest. The final installment of
interest, together with the entire outstanding principal balance of the
Revolving Credit Loan, shall be due and payable on the Termination Date of
Revolving Credit Loan. The first selection of the one (1) month, three (3)
months, six (6) months or, if funds are available in the interbank eurodollar
market, twelve (12) months LIBOR Rate shall be made by the Borrower, Lakeshore
and Lakes Mall (but the rate selected by Lakeshore and Lakes Mall must always be
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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 three (3) Business
Days prior to the end of the then applicable interest rate period. Neither the
Borrower, Lakeshore nor Lakes Mall may ever select a rate period which exceeds
the Termination Date of the Revolving Credit Loan. In the event funding at the
LIBOR Rate is not available as a matter of law, funding to the extent allowed
hereunder shall be at the Base Rate minus one and one half percent (1 1/2%).
2.4 Commitment Fee/Servicing Fee. On the Closing Date, the Borrower, Lakeshore
and Lakes Mall agree to pay to the Bank (in addition to the commitment fees it
has previously paid) an additional commitment/extension fee of One Hundred Sixty
Thousand and NO/100 Dollars ($160,000.00). In addition to the
commitment/extension 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 the Participants. The servicing fee shall belong
solely to the Bank and the Participants shall have no interest therein. Borrower
, Lakeshore and Lakes Mall agree 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, Lakeshore and Lakes Mall
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.
2.5 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 Note, the Lakeshore Note and the Lakes Mall Note,
and principal payments received shall be applied by the Bank to the Revolving
Credit Note, the Lakeshore Note and the Lakes Mall Note all 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. Neither the Borrower
nor Lakes Mall shall be permitted to borrow, repay and reborrow up to the
principal amounts of the Lakes Mall 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 Michigan
property owned by Lakes Mall securing the Lakes Mall 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.
2.6 Substitution of Collateral. Upon the Bank's prior written approval, the
Borrower may substitute collateral originally provided for the Revolving Credit
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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.
2.7 Secondary Financing by CBL Properties, Inc. CBL Properties, Inc. was
formerly the general partner of the Borrower. It is also a real estate
investment trust. In the event CBL Properties, Inc. does any additional offering
of its securities, if required by the Bank, 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 that are not affiliates of
the Borrower or Lakeshore or Lakes Mall.
2.8 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 property described in 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).
2.9 Issuance of Letters of Credit. To the extent that letters of credit are
requested by the Borrower to be issued in connection with the Loan, the Borrower
agrees to execute and deliver to the Bank any documents reasonably requested by
the Bank related to the issuance of the letters of credit, including but not
limited to the Bank's standard form of reimbursement agreement.
SECTION 3: REQUIRED PAYMENTS, PLACE OF PAYMENT, ETC.
3.1 Required Repayments. In the event that the outstanding aggregate principal
balance of the Revolving Credit Loan 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 Loan Agreement.
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3.2 Place of Payments. All payments of principal and interest on the Revolving
Credit Loan and all payments of fees required hereunder shall be made to the
Bank, at its address listed in Section 9.2 of this Loan Agreement in immediately
available funds.
3.3 Payment on Non-Business Days. Whenever any payment of principal, interest or
fees to be made on the indebtednesses evidenced by the Note shall fall due on a
Saturday, Sunday or public holiday under the laws of the State of Tennessee,
such payment shall be made on the next succeeding Business Day.
SECTION 4: CONDITIONS OF LENDING
4.1 Conditions Precedent to Closing and Funding Initial Advance. The obligation
of 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:
(a) This Loan Agreement.
(b) The Note, the Lakeshore Note and the Lakes Mall Note.
(c) The CBL 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.
(d) Current financial statements of the Borrower in form satisfactory
to the Bank to be held by the Bank in strict confidence.
(e) Certified copy of Borrower's limited partnership agreement and
certificate of limited partnership, and all amendments thereto
and a certificate of existence for the Borrower, which the Bank
acknowledges it has previously received.
(f) Certified corporate resolutions of Borrower's general partner,
and certificate(s) of existence for Borrower's general partner
from the state of its incorporation and such other states as Bank
shall require, together with a copy of the charter and bylaws of
the Borrower's general partner.
(g) 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, partnership and/or limited
liability 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.
(h) A certificate from an insurance company, satisfactory to Bank,
setting forth the information concerning insurance which is
required by Section 6.3 of this Loan Agreement; or, if the Bank
shall so require, certified copies of the original insurance
policies evidencing such insurance, all of which the Bank
acknowledges it has previously received.
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(i) Environmental audits of the properties described in the CBL
Mortgage.
(j) 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.
(k) Copies of the appraisals of the real estate described in Exhibit
"A" attached hereto.
(l) The Guaranty Agreements of the Borrower guarantying the
indebtedness evidenced by the Lakeshore Note and the Lakes Mall
Note and of CBL Properties, Inc. guarantying the Loan.
(m) All the items and information shown on the Checklist for Closing,
a copy of which is attached hereto and marked Exhibit "D".
4.2 Conditions Precedent to All Revolving Credit Loan Advances. The obligation
of the Bank to make Revolving Credit Advances pursuant hereto (including the
initial advance at the Closing Date) shall be subject to the following
additional conditions precedent:
(a) The Borrower shall have furnished to the Bank a written request
stating the amount of Revolving Credit Advance requested together
with the intended use of the advance.
(b) The Borrower and all Related Entities shall not be in default of
any of the terms and provisions hereof or of any instrument or
document now or at any time hereafter evidencing or securing all
or any part of the Revolving Credit Loan indebtednesses. Each of
the Warranties and Representations of the Borrower, Lakeshore and
Lakes Mall, as set out in Section 5 hereof shall remain true and
correct in all material respects as of the date of such Loan
advance.
(c) 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.
(d) If required by the Bank, 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 Loan 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, Lakeshore and Lakes Mall represent and warrant that:
5.1 Partnership/Limited Liability Company 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
16
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. Lakes Mall is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Michigan; it has
the authority to own its properties and assets and is duly qualified to carry on
its business in every jurisdiction wherein such qualification is necessary.
Lakes Mall is a ninety percent (90%) owned subsidiary of the Borrower.
5.2 Power and Authority. The execution, delivery and performance of the Loan
Agreement, the Note, the Lakeshore Note, the Lakes Mall Notes, the CBL Mortgage
and the other loan and collateral documents executed pursuant hereto by the
Borrower and all Related Entities have been duly authorized by all requisite
action and, to the best of Borrower's, Lakeshore's and Lakes Mall's knowledge,
will not violate any provision of law, any order of any court or other agency of
government, the limited partnership agreements, charter, bylaws or limited
liability company agreements of the Borrower, Lakeshore, Lakes Mall, or any
Related Entity, any provision of any indenture, agreement or other instrument to
which Borrower, Lakeshore, Lakes Mall, or any Related Entity is a party, or by
which Borrower's, Lakeshore's, Lakes Mall's and all Related Entities' respective
properties or assets are bound, or be in conflict with, result in a breach of,
or constitute (with due notice or lapse of time or both) a default under any
such indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of Borrower, Lakeshore, Lakes Mall, or any Related
Entities, except for liens and other encumbrances provided for and securing the
indebtedness covered by this Loan Agreement.
5.3 Financial Condition.
(a) (i) The Borrower's Consolidated balance sheets (which includes Lakeshore and
Lakes Mall) for the fiscal year ended as of December 31, 2003, and the related
Consolidated statements of operations and Consolidated statements of cash flows
for the year then ended filed with the SEC in the Forms 10-Q and 10-K, and (ii)
the unaudited interim Consolidated balance sheet of Borrower, Lakeshore and
Lakes Mall for September 30, 2004 and the related Consolidated statements of
operations and Consolidated statements of cash flows 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, Lakeshore and
Lakes Mall as at the date of said balance sheets and the results of its
operations for said periods and as of the date of closing of this Loan Agreement
and related transactions, respectively. All such financial statements have been
prepared in accordance with GAAP applied on a consistent basis maintained
through the period involved.
(b) Since September 30, 2004, there has been no substantial adverse change
in the business, properties, condition (financial or otherwise), or results of
operations of Borrower, Lakeshore and/or Lakes Mall.
(c) (i) The audited balance sheet of CBL Properties, Inc. for the fiscal
year ended on December 31, 2003, the unaudited balance sheet of CBL Properties,
Inc. for the period ended September 30, 2004, and the related statements of
17
operations and of cash flows for the year ended 2003 and the period ended
September 30, 2004, a copy of which has been furnished to the Bank, together
with any explanatory notes therein referred to and attached thereto, are correct
and complete and fairly present the financial condition of CBL Properties, Inc.
as at the date of said balance sheets and the results of its operations for said
periods and as of the date of closing of this Loan Agreement and related
transactions, respectively. All such financial statements have been prepared in
accordance with GAAP applied on a consistent basis maintained through the period
involved.
(d) Since September 30, 2004, there has been no substantial adverse change
in the business, properties, condition (financial or otherwise), or results of
operations of CBL Properties, Inc.
(e) The warranties and representations made in this Section 5.3 are and
were made as of the date of this Loan Agreement and any violation thereof shall
be determined as of that date.
5.4 Title to Assets. Borrower and all Related Entities have good and marketable
title to all its properties and assets reflected on the most recent balance
sheet furnished to Bank subject to the Permitted Encumbrances with respect to
the properties described in the CBL Mortgages and subject to all encumbrances,
whether of record or not, with respect to all other properties.
5.5 Litigation. There is no action, suit or proceeding at law or in equity or by
or before any governmental instrumentality or other agency now pending, or, to
the knowledge of the Borrower, Lakeshore and Lakes Mall threatened against or
affecting Borrower or any Related Entity, or any properties or rights of
Borrower or any Related Entities, which, if adversely determined, would
materially adversely affect the financial or any other condition of Borrower or
any Related Entity except as set forth in Exhibit "F" attached hereto.
5.6 Taxes. Borrower, Lakeshore and Lakes Mall 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.
5.7 Contracts or Restrictions. In Borrower's, Lakeshore's and Lakes Mall's
opinions, Borrower, Lakeshore, Lakes Mall and the Related Entities are not a
party to any agreement or instrument or subject to any partnership agreement or
limited liability company or corporate restrictions adversely affecting its
business, properties or assets, operations or condition (financial or otherwise)
other than this Loan Agreement, other bank loan or property partnership
agreements that contain certain restrictive covenants or other agreements
entered into in the ordinary course of business.
5.8 No Default. No Event of Default (as defined herein) has occurred and not
been waived under any agreement or instrument to which it is a party beyond the
expiration of any applicable notice and cure period, which default if not cured
would materially and substantially affect the financial condition, property or
operations of the Borrower or any Related Entity. For the purposes of this
Paragraph 5.8, monetary defaults specifically excepted under the provisions of
18
Paragraph 8.2 (which excludes non-recourse debt) below shall not be deemed
material defaults.
5.9 Patents and Trademarks. Borrower and all Related Entities possess all
necessary patents, trademarks, trade names, copyrights, and licenses necessary
to the conduct of its businesses.
5.10 ERISA. To the best of Borrower's, Lakeshore's and Lakes Mall's knowledge
and belief, Borrower, Lakeshore, Lakes Mall and all Related Entities are in
compliance with all applicable provisions of the Employees Retirement Income
Security Act of 1974 ("ERISA") and all other laws, state or federal, applicable
to any employees' retirement plan maintained or established by it.
5.11 Hazardous Substances. To the best knowledge of Borrower, Lakeshore and
Lakes Mall, 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, Lakeshore, Lakes Mall and/or any Related Entity which is encumbered by
the CBL Mortgage and no above or underground storage tanks exist unlawfully on
such property. No private or governmental lien or judicial or administrative
notice or action related to Hazardous Substances or other environmental matters
has been filed against any property which, if adversely determined, would
materially adversely affect the business, operations or the financial condition
of Borrower, Lakeshore, Lakes Mall and/or any Related Entity except as set forth
in Exhibit "F" attached hereto.
5.12 Ownership of Borrower. As of the date hereof, CBL Holdings I owns an
approximate 1.68% general partner interest in the Borrower and CBL Holdings II
owns a 52.3% limited partner interest in the Borrower. As of the date hereof,
CBL Properties, Inc. does not own a direct interest in Borrower; however, it
owns 100% of the stock of CBL Holdings I and CBL Holdings II. As of the date
hereof, CBL & Associates, Inc. and its affiliates, officers and key employees
own an approximate 15.68% limited partner interest in the Borrower. As of the
date hereof, CBL Management, Inc. owns no interest in the Borrower. As of the
date hereof, Xxxxxxx X. Xxxxxx Group, Inc. owns an approximate 21.41% limited
partner interest in the Borrower and other investors own an approximate 8.93%
limited partner interest in the Borrower The Borrower has no other general
partners. As of the date hereof the Borrower and its Affiliates own 100% of the
partnership interests in Lakeshore and Towne Mall and 90% of the limited
liability company interests of Lakes Mall.
5.13 Outstanding Balance on Lakeshore Note. As of the date hereof, the
outstanding unpaid principal balance of the Lakeshore Note is $20,400,000.00 and
the undisbursed amount of the Lakeshore Note is $-0- and no defenses or offsets
exist against the holder of the Lakeshore Note or otherwise.
5.14 Outstanding Balance on Lakes Mall Note. As of the date hereof, the
outstanding unpaid principal balance of the Lakes Mall Note is $31,987,082.34
and the undisbursed amount of the Lakes Mall Note is $-0- and no defenses or
offsets exist against the holder of the Lakes Mall Note or otherwise.
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SECTION 6: AFFIRMATIVE COVENANTS OF BORROWER, LAKESHORE AND LAKES MALL
Borrower, Lakeshore and Lakes Mall 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, the Lakeshore Note and the Lakes Mall
Note, unless the Bank shall otherwise consent in writing, such consent to be at
the discretion of the Bank, Borrower, Lakeshore and Lakes Mall will and will
cause all Related Entities to:
6.1 Business and Existence. Perform all things necessary to preserve and keep in
full force and effect its existence, rights and franchises, comply with all laws
applicable to it and continue to conduct and operate its business in a sound and
prudent manner.
6.2 Maintain Property. Maintain, preserve, and protect all leases, franchises,
and trade names and preserve all of its properties used or useful in the conduct
of its business in a sound and prudent manner, keep the same in good repair,
working order and condition, ordinary wear and tear excepted, and from time to
time make, or cause to be made, all needed and proper repairs, renewals,
replacements, betterments and improvements thereto so that the business carried
on in connection therewith may be properly conducted at all times.
6.3 Insurance.
---------
(a) With respect to all of the Property which serves as collateral for the
Loan, at all times maintain in some company or companies (having a Best's rating
of A:XI or better) approved by Bank:
(i) Comprehensive public liability insurance covering claims for
bodily injury, death, and property damage, with minimum limits
satisfactory to the Bank, but in any event not less than those
amounts customarily maintained by companies in the same or
substantially similar business;
(ii) Business interruption insurance and/or loss of rents insurance in
a minimum amount specified by Bank, with loss payable clause in
favor of Bank;
(iii)Hazard insurance insuring all the Property which serves as
collateral for the Loan against loss by fire (with extended
coverage) and against such other hazards and perils (including
but not limited to loss by windstorm, hail, explosion, riot,
aircraft, smoke, vandalism, malicious mischief and vehicle
damage) as Bank, in its sole discretion, shall from time to time
require, all such insurance to be issued in such form, with such
deductible provision, and for such amount as shall be
satisfactory to Bank, with loss payable clause in favor of Bank.
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
(iv) Such other insurance as the Bank may, from time to time,
reasonably require by notice in writing to the Borrower,
Lakeshore and/or Lakes Mall.
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(b) All required insurance policies shall provide for not less than thirty
(30) days' prior written notice to the Bank of any cancellation, termination, or
material amendment thereto; and in all such liability insurance policies, Bank
shall be named as an additional insured. Each such policy shall, in addition,
provide that there shall be no recourse against the Bank for payment of premiums
or other amounts with respect thereto. Hazard insurance policies shall contain
the agreement of the insurer that any loss thereunder shall be payable to the
Bank notwithstanding any action, inaction or breach of representation or
warranty by the Borrower or any Related Entity. The Borrower, Lakeshore and
Lakes Mall 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, Lakeshore or
Lakes Mall to the Bank (whether matured or unmatured) or, at Bank's option,
released to the Borrower, Lakeshore or Lakes Mall, as the case might be.
6.4 Obligations, Taxes and Liens. Pay all of its indebtednesses and obligations
in accordance with normal terms and practices of its business and pay and
discharge or cause to be paid and discharged all taxes, assessments, and
governmental charges or levies imposed upon it or upon any of its income and
profits, or upon any of its properties, real, personal or mixed, or upon any
part thereof, before the same shall become in default, as well as all lawful
claims for labor, materials, and supplies which otherwise, if unpaid, might
become a lien or charge upon such properties or any part thereof; provided,
however, that the Borrower and Related Entities shall not be required to pay and
discharge or to cause to be paid and discharged any such indebtedness,
obligation, tax, assessment, trade payable, charge, levy or claim so long as the
validity thereof shall be contested in good faith by appropriate proceedings
satisfactory to Bank, and Bank shall be furnished, if Bank shall so request,
bond or other security protecting it against loss in the event that such contest
should be adversely determined. In addition, Borrower, Lakeshore and Lakes Mall
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, Lakeshore Note, or Lakes Mall Note or, if
Bank has elected to pay same, Borrower, Lakeshore and Lakes Mall shall
immediately reimburse Bank therefor upon the request of the Bank; provided,
however Borrower, Lakeshore and Lakes Mall shall not be required to pay so long
as Borrower, Lakeshore, Lakes Mall or any Related Entity is contesting the tax
and/or penalties in good faith and through continuous and appropriate
proceedings but Borrower, Lakeshore and Lakes Mall shall be required to
reimburse to the extent Bank has made any payment.
6.5 Financial Reports and Other Data. Furnish to the Bank as soon as available:
(a) and in any event within ninety (90) days after the end of each fiscal year
of Borrower, an unqualified audit as of the close of such fiscal year of
Borrower, including a Consolidated balance sheet and Consolidated statements of
operations and Consolidated statements of cash flows together with the
unqualified audit report and opinion of Deloitte & Touche, LP, Certified Public
Accountant, or other independent Certified Public Accountant which is widely
recognized and of good national repute or which is otherwise acceptable to the
Bank, showing the financial condition of Borrower at the close of such year and
the results of operations during such year; and, (b) within forty-five (45) days
after the end of each fiscal quarter, (i) Consolidated financial statements
21
similar to those described above for Borrower and for CBL Properties, Inc., not
audited but certified by the Chief Executive Officer and 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 Consolidated
statements of operations and Consolidated statements of cash flows 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, (c) within forty-five (45) days
after the end of each fiscal quarter, rent rolls and operating statements
related to the properties described in the CBL Mortgage; and, (d) simultaneously
with the inclusion of Net Operating Income (loss) from Newly Acquired Property
in any financial calculation provided for in this Loan Agreement, certification,
in a form acceptable to Bank, of the purchase price for such Newly Acquired
Property and a current rent roll and a current income and expense statement,
similar to those described above, not audited but certified by the Chief
Financial Officer or Controller of Borrower and CBL Properties, Inc., as the
case may be, such rent roll and statement of income and expense to be for the
twelve (12) month period, if available, used in any such calculation and/or to
also be for the period from the beginning of said year to the end of such
quarter, as the case may be.
6.6 Additional Information. Furnish such other information regarding the
operations, business affairs and financial condition of the Borrower and all
Related Entities as Bank may reasonably request, including but not limited to
written confirmation of requests for loan advances, true and exact copies of its
books of account and tax returns, and all information furnished to the owners of
its partnership interests, or any governmental authority, and permit the copying
of the same and Bank agrees that all such information shall be maintained in
strict confidence. Provided, however, the Borrower, Lakeshore and Lakes Mall
shall not be required to divulge the terms of other financing arrangements with
other lending institutions if and to the extent Borrower, Lakeshore and/or Lakes
Mall is prohibited by contractual agreement with such lending institutions from
disclosing such information with the exception that Borrower, Lakeshore and
Lakes Mall shall promptly notify Bank in writing of all defaults, if any, which
exist beyond any applicable cure periods and the nature thereof, which occur in
connection with such financing arrangements and which defaults or defaults would
constitute an Event of Default hereunder. Borrower, Lakeshore and Lakes Mall
shall not enter into any such contractual arrangement whereby the Borrower or
Lakeshore or Lakes Mall is prohibited from disclosing such financial
arrangements, without providing Bank with written notice of the nature of such
prohibitions. In addition, Borrower, Lakeshore and Lakes Mall shall not enter
into any such arrangement while any Event of Default hereunder exists beyond any
applicable cure periods.
6.7 Right of Inspection. Permit any person designated by the Bank, at the Bank's
expense, to visit and inspect any of the properties, books and financial reports
of the Borrower and all Related Entities and to discuss its affairs, finances
and accounts with its principal officers, at all such reasonable times and as
often as a Bank may reasonably request provided that such inspection shall not
unreasonably interfere with the operation and conduct of Borrower's or any
Related Entity's properties and business affairs and provided further that such
person shall disclose such information only to the Bank, the Bank's appraisers
and examiners as required by banking laws, rules and regulations.
6.8 Environmental Laws. Maintain at all times all property described in the CBL
Mortgage in compliance with all applicable Environmental Laws, and immediately
22
notify the Bank of any notice, action, lien or other similar action alleging
either the location of any Hazardous Substances or the violation of any
Environmental Laws with respect to any of such properties.
6.9 Notice of Adverse Change in Assets. At the time of Borrower's, Lakeshore's
and/or Lake Mall'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/or any Related Entity which are subject to any CBL Mortgage.
6.10 Minimum Net Worth. Borrower shall not permit Net Worth at any time to be
less than an amount equal to $1,279,508,000 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.
6.11 Total Obligations to Capitalized Value. Maintain at all times (except as
herein permitted) beginning on the Closing Date, a ratio of Total Obligations to
Capitalized Value of not more than .65 to 1.00; provided however, as of the end
of the Borrower's second (2nd) and fourth (4th) fiscal quarters, the Bank, in
its sole discretion and consistent with trends in the real estate market, may
adjust the Capitalized Value cap rates of 9.75% for Non- Mall Projects and 8.25%
for Mall Projects. If the cap rate is adjusted by the Bank, the Borrower shall
not be deemed out of compliance with any covenants affected by the adjustment
until the end of the quarter following the effective date of the adjustment.
6.12 Appraisals. Deliver to the Bank upon the Bank's request, but 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 1.75 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 1.55 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 plus
accrued interest.
6.16 Agreements regarding Lakes Mall Note and Lakes Mall 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 Lakes Mall Note
and/or the Lakes Mall Mortgage for the balance due under the Lakes Mall Note
plus accrued interest.
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6.17 Notice of Event of Default. As soon as practicable, and in any event within
two (2) Business Days after a senior officer of Borrower or any Subsidiary
becomes aware of the existence of any condition or event which constitutes a
default or Event of Default, the Borrower shall provide telephonic notice to the
Bank specifying the nature and period of existence thereof, and, no more than
two (2) Business Days after such telephonic notice, written notice again
specifying the nature and period of existence thereof and specifying what action
Borrower is taking or proposes to take with respect thereto.
SECTION 7: NEGATIVE COVENANTS OF BORROWER, LAKESHORE AND LAKES MALL
Borrower, Lakeshore and Lakes Mall 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, Lakeshore
and Lakes Mall will not, and will not allow any Related Entity, to either
directly or indirectly:
7.1 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, the
Lakeshore Note and the Lakes Mall Note which indebtedness does not exceed Five
Hundred Thousand Dollars ($500,000.00) in the aggregate per property and is used
for renovation, repair or improvement of the property or properties described in
the CBL Mortgage.
7.2 Mortgages, Liens, Etc. Create, assume or suffer to exist any mortgage,
pledge, lien, charge or other encumbrance of any nature whatsoever on any of the
properties subject to the CBL Mortgage except:
(a) Liens in favor of the Bank securing payment of the Note and/or the Lakeshore
Note and/or the Lakes Mall Note;
(b) Existing liens securing indebtednesses permitted under Section 7.1 above;
(c) Permitted Encumbrances (as defined at Section 1); and
(d) Liens securing indebtedness permitted under Section 7.1 above.
7.3 Sale of Assets. Sell, lease, convert, transfer or dispose of (other than in
the normal course of business) all or a substantial part of its assets for less
than book value or for less than fair market value, or, sell, lease, convert,
transfer or dispose of all or a substantial part of its assets, without the
Bank's prior written consent, if GAAP book value or fair market value exceeds
20% of the GAAP book value of all of its assets at that time. In other words,
the Borrower may sell its assets without the Bank's consent so long as such sale
is not more than 20% of the book value of all of its assets.
7.4 Consolidation or Merger; Acquisition of Assets. Enter into any transaction
of merger or consolidation, acquire any other business or corporation, or
24
acquire all or substantially all of the property or assets of any other Person
unless the Borrower and/or its general partner shall be the surviving entities.
7.5 Partnership Distributions and Other Payments. Except as hereinafter
provided, declare or pay, or set apart any funds for the payment of, any
distributions on any partnership, limited liability or corporate interest in
Borrower or any Related Entity 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 capital or
otherwise) in respect of, any partnership, limited liability or corporate
interest in Borrower or any Related Entity; or without the consent of Bank, pay
any fee or other compensation of any nature to or for the benefit of CBL &
Associates, Inc., CBL Holdings, 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 Holdings. Borrower may make a distribution from
Loan proceeds but only once during any rolling twelve (12) month period and
provided Borrower is not in default hereunder and such distribution will not
create a default hereunder.
7.6 Loans to Officers and Employees. Permit or allow loans to officers and
employees of Borrower or any Related Entity or holders of partnership interests
in Borrower to exceed $500,000.00 in any one instance or $2,000,000.00 in the
aggregate, provided that nothing in the foregoing shall be deemed to limit loans
made in the ordinary course of business to CBL Properties Management, Inc.
7.7 Limitations on Floating Rate Indebtedness. Incur, assume or suffer to exist
any outstanding indebtedness bearing interest at a variable rate that fluctuates
during the scheduled life of such indebtedness (other than indebtedness under
Reserved Construction Loans, as that term is defined hereinafter) in an
aggregate principal amount in excess of twenty five percent (25%) of Borrower's
Capitalized Value (Total) 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 twenty five percent (25%) of Borrower's
Capitalized Value (Total) (including base rate, applicable margin and reserve
and similar costs) from increasing above the rate set forth below with respect
to such indebtedness:
25
Principal Amount in
Excess of twenty five percent
(25%) of Borrower's Capitalized Value (Total) Interest Rate
--------------------------------------------- -------------
Less than or equal
to $50,000,000.00 8.5%
Greater than
$50,000,000.00 and
less than or equal
to $100,000,000.00 8.0%
Greater than
$100,000,000.00 and
less than or equal
to $150,000,000.00 7.5%
Greater than
$150,000,000.00 7.0%
For purposes of this Loan Agreement, "Reserved Construction Loan" shall
mean a construction loan extended to Borrower or to a subsidiary of Borrower or
to any Related Entity 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 accurately budgeted 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 until the project
opens); (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 until the project opens;
(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.
7.8 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, Lakeshore and/or Lakes Mall or to Bank for the benefit of Borrower,
Lakeshore and/or Lakes Mall, 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, Lakeshore and/or Lakes Mall any Participant's Proportionate Share, to
the extent such Participant's Proportionate Share has been received by Bank; or
26
(c) any Participant, if Bank fails or refuses to fund for the account of
Borrower, Lakeshore and/or Lakes Mall 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, Lakeshore's and Lake Mall's cause of
action under this Loan Agreement, if any, for failure to fund being directly
against the lender which fails or refuses to fund, and then only if such failure
or refusal to fund would constitute a breach of this Loan Agreement.
7.9 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 Subsidiaries to exceed the following
percentages of Borrower's Net Worth:
(i) raw land, such that the aggregate book value of all such raw land
(other than: (A) raw land subject to a ground lease under which
Borrower is the landlord and a Person not an Affiliate of
Borrower is the tenant; (B) land on which the development of a
Project has commenced; (C) land subject to a binding contract of
sale under which Borrower or one of its Subsidiaries is the
seller, the buyer is not an Affiliate of Borrower and (D)
out-parcels held for lease or sale) exceeds ten percent (10%) of
Net Worth;
(ii) developed real estate used primarily for non-retail purposes,
such that the aggregate book value of such real estate (other
than the real estate located at 0000 Xxxxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx and a small office building located at
Richland Mall in Waco, Texas) exceeds ten percent (10%) of Net
Worth;
(iii)Capital Stock of any Person, such that the aggregate value of
such Capital Stock in Unconsolidated Affiliates other than CBL
Management, Inc., calculated on the basis of the lower of cost or
market, exceeds ten percent (10%) of Net Worth;
(iv) Mortgages, such that the aggregate principal amount secured by
Mortgages acquired by Borrower after the Effective Date exceeds
ten percent (10%) of Net Worth, except for mortgages held by
Mortgage Holdings, LLC (on real estate owned by Borrower or any
entity related to Borrower) for the purpose of avoiding mortgage
taxes and title charges and mortgages granted upon the sale of
assets as more particular set out in Borrower's 10k;
(v) Investments made after the date hereof in partnerships, joint
ventures and other non-corporate Persons accounted for on 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.
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(b) Neither Borrower nor any of its Subsidiaries shall acquire the business
of all or substantially all of the assets or stock of any Person, or any
division of any Person, whether through Investment, purchase of assets, merger
or otherwise; provided that Borrower or its Subsidiaries may make such an
acquisition so long as Borrower has delivered to Bank, not less than thirty (30)
days prior to the date such acquisition is consummated, (i) all information
related to such acquisition as is reasonably requested by the Bank and (ii) a
certificate, signed by the chief financial officer of Borrower, certifying that,
giving effect to such acquisition, there shall not exist any Default or Event of
Default hereunder and setting forth in reasonable detail the calculations
setting forth, on a pro forma basis giving effect such acquisition, Borrower's
compliance with the loan documents which exist between Borrower and Bank.
SECTION 8: EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following shall occur:
8.1 Payment of Principal, Interest to Bank. The Borrower, Lakeshore and/or Lakes
Mall defaults in the payment as and when due of principal or interest on any
Note, the Lakeshore Note or the Lakes Mall 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, Lakeshore and/or Lakes Mall thereof; or
the Borrower, Lakeshore and/or Lakes Mall 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
8.2 Payment of Obligations to Others. The Borrower, Lakeshore, Lakes Mall or any
Related Entity defaults in the payment as and when due of any other recourse
indebtedness or obligation for borrowed money owed to a lender other than Bank,
but only if the effect of such default causes the holder of any other recourse
indebtedness or obligation (after expiration of any applicable cure period) to
accelerate the maturity of such indebtedness or obligation prior to the stated
maturity date of such indebtedness or obligation; provided however, the
Borrower, Lakeshore, Lakes Mall and the Related Entity will not be considered in
default hereunder if: (a) the monetary payment default is less than One Million
Dollars ($1,000,000.00) and is not a failure to pay a regular monthly, quarterly
or other periodic installment payment of principal and/or interest or interest
only, as the case may be, on the due date [subject to any applicable grace or
cure period and specifically excluding any regularly scheduled balloon payment
not paid in full within sixty (60) days of the actual due date of the balloon
payment unless the lender has issued a notice of default with respect to such
balloon payment] or (b) such default is being contested by the Borrower,
Lakeshore, Lakes Mall or the Related Entity in good faith through appropriate
proceedings reasonably acceptable to Bank; or
8.3 Performance of Obligations to Bank. The Borrower, Lakeshore, Lakes Mall or
any Related Entity defaults with respect to the performance of any non-monetary
obligation incurred in connection with the Loan and such default continues for
more than thirty (30) days following mailing of notice thereof from Bank to
Borrower, Lakeshore, Lakes Mall and/or the Related Entity, as the case may be,
or, if such default is incapable of cure within such thirty (30) day period,
Borrower, Lakeshore, Lakes Mall and/or the Related Entity, as the case may be,
fails to diligently, continuously and in good faith pursue such cure to
completion; or the Borrower, Lakeshore, Lakes Mall and/or the Related Entity, as
28
the case may be, defaults with respect to the performance of any other
non-monetary obligation incurred in connection with any recourse indebtedness
for borrowed money owed to the Bank an such default continues for more thirty
(30) days following mailing of notice thereof from Bank to Borrower, Lakeshore,
Lakes Mall and/or the Related Entity, as the case may be, or, if such default is
incapable of cure within such thirty (30) day period, Borrower, Lakeshore, Lakes
Mall and/or the Related Entity fails to diligently, continuously and in good
faith pursue such cure to completion; or
8.4 Performance of Obligations to Others. An event of default occurs with
respect to the performance of non-monetary obligations incurred in connection
with any recourse indebtedness for borrowed money owed to a lender other than
Bank, provided the default has not been waived by such lender or the default has
not been cured within the applicable cure period; provided further however, if
such lender's declaration of default is being continuously and diligently
contested by the Borrower, Lakeshore, Lakes Mall and/or the Related Entity, as
the case may be, in good faith through appropriate proceedings reasonably
acceptable to Bank, such default shall not constitute a default hereunder; or
8.5 Representation or Warranty. Any representation or warranty made by the
Borrower, Lakeshore and/or Lakes Mall herein, or in any report, certificate,
financial statement or other writing furnished in connection with or pursuant to
this Loan Agreement shall prove to be false, misleading or incomplete in any
substantial material respect on the date as of which made; or
8.6 Bankruptcy, Etc. The Borrower or Lakeshore or Lakes Mall or CBL Holdings or
CBL Properties, Inc. or any Related Entity shall make a general assignment of
assets for the benefit of creditors, file a petition in bankruptcy, petition or
apply to any tribunal for the appointment of a custodian, receiver or any
trustee for it or a substantial part of its assets, or shall commence on its or
their behalf any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or if there shall have been
filed any such petition or application, or any such proceeding shall have been
commenced against Borrower or Lakeshore or Lakes Mall or CBL Holdings or CBL
Properties, Inc. or any Related Entity, in which an order for relief is entered
against Borrower or Lakeshore or Lakes Mall or CBL Holdings or CBL Properties,
Inc. which remains undismissed for a period of ninety (90) days or more; or
Borrower or Lakeshore or CBL Holdings or CBL Properties, Inc. or any Related
Entity by any act or omission shall indicate its consent to, approval of or
acquiescence in any such petition, application or proceeding or order for relief
or the appointment of a custodian, receiver or any trustee for it or any
substantial part of any of its properties, or shall suffer any such
custodianship, receivership or trusteeship to continue undischarged for a period
of ninety (90) days or more; or
8.7 Concealment of Property, Etc. The Borrower, Lakeshore, Lakes Mall, any
Related Entity, or CBL Holdings or CBL Properties, Inc. shall have concealed,
removed, or permitted to be concealed or removed, any part of its property, with
intent to hinder, delay or defraud its or his creditors or any of them, or made
or suffered a transfer of any of its property which shall constitute a
fraudulent act under any bankruptcy, fraudulent conveyance or similar law; or
shall have made any transfer of its property to or for the benefit of a creditor
at a time when other creditors similarly situated have not been paid; or shall
29
have suffered or permitted, while insolvent, any creditor to obtain a lien upon
any of its property through legal proceedings or distraint which is not vacated
within thirty (30) days from the date thereof; or
8.8 Management Change. Management of the Borrower shall, for a period of one
hundred eighty (180) consecutive days, cease to be in at least two of the
following persons: (a) Xxxxxxx X. Xxxxxxxx, (b) Xxxx X. Xxx, (c) Xxxxxxx
Xxxxxxxx, (d) Xxxxxxx X. Xxxxxxxx or (e) Xxx Xxxxxx, who shall be in an
executive management position with Borrower or who shall be a senior vice
president, executive vice president, senior executive vice president or
president with Borrower's general partner; or
8.9 Change in Ownership. CBL & Associates, Inc., its affiliates, officers and
key employees, CBL Holdings and CBL Properties, Inc. shall have through any
means reduced their aggregate partnership interest in Borrower to less than
fifteen percent (15%) of the aggregate of such partnership interests; or
8.10 Loan Documents Terminated or Void. This Loan Agreement, the Note, the
Lakeshore Note, the Lakes Mall 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, Lakeshore, Lakes Mall and/or any Related Entity shall deny it
has any or further liability under this Loan Agreement, the Note, the Lakeshore
Note or the Lakes Mall Note, or under the CBL Mortgage; or
8.11 Covenants. The Borrower or any Related Entity defaults in the performance
or observance of any covenant, agreement or undertaking on its part to be
performed or observed, contained herein, in the CBL Mortgage or in any other
instrument or document which now or hereafter evidences or secures all or any
part of the loan indebtedness which default shall continue for more than thirty
(30) days following the mailing of notice from Bank to Borrower, Lakeshore,
Lakes Mall and/or such Related Entity, as the case may be; or
8.12 Breach of Section 7.8 of this Loan Agreement. The Borrower, Lakeshore
and/or Lakes Mall shall fail to observe or perform its obligations to the Bank,
and/or any Participant under Section 7.8 of this Loan Agreement; or
8.13 Placement of Liens on Property. The Borrower or any Related Entity 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 any 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 Loan Agreement; and the Bank may at its
option charge interest on the outstanding indebtedness at the Default Rate; and
the Bank may, at its option, thereupon declare the entire unpaid principal
balances of the Note, the Lakeshore Note, and the Lakes Mall Note, all interest
30
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, the Lakeshore Note and/or the
Lakes Mall 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
9.1 Amendments. The provisions of this Loan Agreement, the Note, the Lakeshore
Note, the Lakes Mall Note, the CBL Mortgage or any instrument or document
executed pursuant hereto or securing the indebtednesses may be amended or
modified only by an instrument in writing signed by the parties hereto.
9.2 Notices. All notices and other communications provided for hereunder shall
be in writing and shall be mailed, certified mail, return receipt requested, or
delivered, if to the Borrower, Lakeshore and/or Lakes Mall, to it at c/o CBL &
Associates Properties, Inc., CBL Center, Suite 500, 0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: President, with a copy
to Xxxxxxx Xxxxxxx, Xx.; 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 (3) Business Days after mailing, whichever
is earlier; or (ii) if delivered, upon delivery and receipt of an executed
acknowledgment of receipt by the party to whom delivery is made. Notwithstanding
the foregoing, the Bank shall not be required to send a copy of any notice or
communication to Xxxxxxx Xxxxxxx, Xx. but the Bank will use good faith efforts
to copy Xxxxxxx Xxxxxxx, Xx. on any such notices or communications via regular
mail, fax or email.
9.3 No Waiver, Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Bank, any right, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. Waiver of any
right, power, or privilege hereunder or under any instrument or document now or
hereafter securing the indebtedness evidenced hereby or under any guaranty at
any time given with respect thereto is a waiver only as to the specified item.
The rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
9.4 Indemnification. Borrower, Lakeshore and Lakes Mall 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
Loan Agreement (including, without limitation, enforcement of this Loan
Agreement), except claims, losses or liabilities resulting solely and directly
from Bank's gross negligence or willful misconduct or from Bank's violation of
applicable banking rules and regulations. The indemnification provided for in
this Section shall survive the payment in full of the loan. The Borrower agrees
to indemnify the Bank and the Participants and to hold the Bank and the
31
Participants harmless from any loss or expense that such Bank or the
Participants may sustain or incur as a consequence of a default by the Borrower
in making any prepayment of or conversion from an advance bearing interest at
the LIBOR Rate after the Borrower has given a notice thereof in accordance with
the provisions of this Loan Agreement.
9.5 Survival of Agreements. All agreements, representations and warranties made
herein shall survive the delivery of the Note. This Loan Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns, except that the Borrower, Lakeshore and the
Lakes Mall shall not have the right to assign its rights hereunder or any
interest therein.
9.6 Governing Law. This Loan Agreement shall be governed and construed in
accordance with the laws of the State of Tennessee; except (a) that the
provisions hereof which relate to the payment of interest shall be governed by
(i) the laws of the United States or, (ii) the laws of the State of Tennessee,
whichever permits 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.
9.7 Execution in Counterparts. This Loan Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument.
9.8 Terminology; Section Headings. All personal pronouns used in this Loan
Agreement whether used in the masculine, feminine, or neuter gender, shall
include all other genders; the singular shall include the plural, and vice
versa. Section headings are for convenience only and neither limit nor amplify
the provisions of this Loan Agreement.
9.9 Enforceability of Agreement. Should any one or more of the provisions of
this Loan Agreement be determined to be illegal or unenforceable, all other
provisions, nevertheless, shall remain effective and binding on the parties
hereto.
9.10 Interest Limitations.
(a) The Loan and the Note, the Lakeshore Note and the Lakes Mall 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, the Lakeshore Note or the Lakes Mall Note.
(b) It is the intention of the Bank, the Borrower, Lakeshore and the Lakes
Mall 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
32
indebtedness evidenced thereby, and all lawful interest thereon, is paid in
full, any remaining excess shall forthwith be paid to the Borrower, Lakeshore
and/or Lakes Mall 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, Lakeshore and/or Lakes Mall 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, Lakeshore and/or Lakes Mall, 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, Lakeshore
and/or Lakes Mall that is in conflict with the provisions of this paragraph.
The Note, the Lakeshore Note and the Lakes Mall 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,
Lakeshore and/or Lakes Mall be liable for the payment of interest in excess of
the maximum rate permitted by such applicable law, from time to time in effect.
9.11 Non-Control. In no event shall the Bank's rights hereunder be deemed to
indicate that the Bank is in control of the business, management or properties
of the Borrower, Lakeshore, Lakes Mall and/or any Related Entity or has power
over the daily management functions and operating decisions made by the
Borrower, Lakeshore, Lakes Mall and/or any Related Entity.
9.12 Loan Review; Extensions of Termination Date; Continuing Security.
(a) 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 the Bank renews the Loan at anytime or from time to
time prior to June 1, 2005, the Bank and the Borrower, Lakeshore and Lakes Mall
agree the Loan shall be renewed with covenants as contained in Sections 6.11,
6.13 and 6.14 of this Loan Agreement or such other covenants, terms and
conditions as may be mutually agreed upon by Borrower, Lakeshore and Lakes Mall
Bank and Bank. If Bank deems performance of the Loan not acceptable, Bank shall
not be obligated to extend the Termination Date of Revolving Credit Loan;
however, the Borrower, Lakeshore and Lakes Mall shall then have the right to
repay the Loan pursuant to the repayment provisions contained in the Note, the
33
Lakeshore Note and the Lakes Mall 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 unless an Event of
Default has occurred, any inspections, appraisals, surveys or similar items
between: (a) the date notice thereof is given Borrower or the Termination Date,
whichever first occurs, and (b) the date the Note, the Lakeshore Note and the
Lakes Mall Note are repaid as provided herein.
(b) Upon the specific Termination Date of Revolving Credit Loan so fixed in
Article One, or in the event of the extension of this Loan Agreement to a
subsequent Termination Date (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 Loan Agreement; and all of such duties, covenants and
obligations shall remain in full force and effect until the Revolving Credit
Loan and all obligations under this Loan Agreement have been fully paid and
satisfied in all respects.
9.13 Fees and Expenses. The Borrower, Lakeshore and Lakes Mall agree 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 Note, the Lakeshore Note, the Lakes Mall Note and
any instrument or document now or hereafter securing the and Revolving Credit
Loan indebtednesses.
9.14 Time of Essence. Time is of the essence of this Loan Agreement, the Note,
the Lakeshore Note, the Lakes Mall Note and the other instruments and documents
executed and delivered in connection herewith.
9.15 Compromises, Releases, Etc. Bank is hereby authorized from time to time,
without notice to anyone, to make any sales, pledges, surrenders, compromises,
settlements, releases, indulgences, alterations, substitutions, exchanges,
changes in, modifications, or other dispositions including, without limitation,
cancellations, of all or any part of the Loan indebtedness, or of any contract
or instrument evidencing any thereof, or of any security or collateral therefor,
and/or to take any security for or guaranties upon any of said indebtedness; and
the liability of any guarantor, if any, shall not be in any manner affected,
diminished, or impaired thereby, or by any lack of diligence, failure, neglect,
34
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, Lakeshore and/or Lakes
Mall, 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, Lakeshore
and/or Lakes Mall and any guarantor, jointly or severally and may compromise
with any of them for such sums or on such terms as it may see fit, and without
notice or consent, the same being hereby expressly waived.
9.16 Joinder of CBL Properties, Inc. and CBL Holdings I, Inc. CBL Properties,
Inc. joins herein for the purpose of acknowledging and consenting to the terms
and provisions hereof, including Section 2.7 hereof. CBL Holdings I, Inc. joins
herein for the purpose of acknowledging and consenting to the terms and
provisions hereof, including Section 2.7 hereof.
9.17 Bank's Consent. Except as otherwise expressly provided herein, in any
instance hereunder where Bank's approval or consent is required or the exercise
of its judgment is required, the granting or denial of such approval or consent
and the exercise of such judgment shall be within the sole but reasonable
discretion of Bank, and Bank shall not, for any reason or to any extent, be
required to grant such approval or consent or exercise such judgment provided
that the Bank shall proceed at all times in good faith and in a commercially
reasonable manner.
9.18 Venue of Actions. As an integral part of the consideration for the making
of the loan, it is expressly understood and agreed that no suit or action shall
be commenced by the Borrower, Lakeshore, Lakes Mall, Related Entities, CBL
Holdings, 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.
9.19 Waiver of Right to Trial By Jury. EACH PARTY TO THIS LOAN AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (a) ARISING UNDER THIS LOAN AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS LOAN AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
35
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS LOAN AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
9.20 Conflict. In the event of any conflict between the provisions hereof and
any other loan document during the continuance of this Loan Agreement (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 and
the Lakes Mall), the provisions of this Loan Agreement shall control.
9.21 Participation Agreement. The Borrower, Lakeshore and Lakes Mall 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, Compass Bank, AmSouth Bank of Tennessee and Branch Banking and
Trust Company are obligated, subject to the terms and conditions of the
Participation Agreement, to fund as follows: KeyBank is to fund Seven Million
Five Hundred Thousand and NO/100 Dollars ($7,500,000.00), Compass is to fund
Twelve Million Five Hundred Thousand and NO/100 Dollars ($12,500,000.00),
AmSouth Bank of Tennessee is to fund Twenty Two Million Five Hundred Thousand
and NO/100 Dollars ($22,500,000.00) and Branch Banking and Trust Company is to
fund Fifteen Million and NO/100 Dollars ($15,000,000.00).
(Signatures on Next Page)
36
IN WITNESS WHEREOF, the Borrower, Lakeshore, Lakes Mall, the Bank, CBL
Holdings and CBL Properties, Inc. have caused this Loan Agreement to be executed
by their duly authorized officers, managers and/or partners, all as of the day
and year first above written.
CBL & ASSOCIATES LIMITED PARTNERSHIP
BY: CBL HOLDINGS I, INC.,
Its Sole General Partner
By: /s/ Xxxx X. Xxx
------------------------------------------
Xxxx X. Xxx
Title: Vice President & Chief
Financial Officer
---------------------------------------
BORROWER
LAKESHORE/SEBRING LIMITED PARTNERSHIP
BY: CBL & ASSOCIATES LIMITED
PARTNERSHIP, It's sole General Partner
BY: CBL HOLDINGS I, INC.,
Its sole General Partner
By: /s/ Xxxx X. Xxx
------------------------------------------
Xxxx X. Xxx
Title: Vice President & Chief
Financial Officer
---------------------------------------
LAKESHORE
THE LAKES MALL, LLC
By: CBL & Associates Limited Partnership,
Its Managing Member
By: CBL Holdings I, Inc., its General Partner
By: /s/ Xxxx X. Xxx
------------------------------------------
Xxxx X. Xxx
Title: Vice President & Chief
Financial Officer
---------------------------------------
LAKES MALL
CBL & ASSOCIATES PROPERTIES, INC.
By: /s/ Xxxx X. Xxx
------------------------------------------
Xxxx X. Xxx
Title: Vice President & Chief
Financial Officer
---------------------------------------
GUARANTOR
37
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice President
BANK
38
EXHIBIT "A"
Real property known as:
Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxx
Lakeshore Mall, Sebring, Florida
Pemberton Mall, Vicksburg, Mississippi
The Lakes Mall, Fruitport, Michigan
Towne Mall, Middleton, Ohio
all as more particularly described in the individual deeds of trust, deeds to
secure debt and/or mortgages applicable to the above described properties.
39
EXHIBIT "B"
PERMITTED ENCUMBRANCES
1. As described in the Mortgages.
40
EXHIBIT "C"
REVOLVING CREDIT NOTES, LAKESHORE NOTE AND LAKES MALL NOTE
41
EXHIBIT "D"
CHECKLIST FOR CLOSING
42
EXHIBIT "E"
NON-DEFAULT CERTIFICATE
For Fiscal Year Ended _______________, 20__.
For Fiscal Quarter Ended _______________, 20__.
The undersigned, a duly authorized officer of CBL & Associates Limited
Partnership, a Delaware limited partnership [referred to as "Borrower" in that
certain Amended and Restated Loan Agreement (the "Loan Agreement") dated as of
December ___, 2004 between Borrower, Lakeshore, Lakes Mall and First Tennessee
Bank National Association ("Bank")], certifies to said Bank, in accordance with
the terms and provisions of said Loan Agreement, as follows:
1. All of the representations and warranties set forth in the Loan
Agreement are and remain true and correct on and as of the date of this
Certificate with the same effect as though such representations and warranties
had been made on and as of this date except as otherwise previously disclosed to
the Bank in writing.
2. As of the date hereof, neither Borrower, Lakeshore nor Lakes Mall has
knowledge of any Event of Default, as specified in Section 8 of the Loan
Agreement, nor any event which, upon notice, lapse of time or both, would
constitute an Event of Default, has occurred or is continuing.
3. As of the date hereof, Borrower is in full compliance with all financial
covenants contained in the Loan Agreement, and the following are true, accurate
and complete:
(a) The Net Worth (as defined in the Loan Agreement) of the Borrower
is $__________________________ as of ________________, 20___.
(b) The Total Obligations to Portfolio Value Ratio of the Borrower is
_____ to _____ as of _____________________, 20__.
(c) The Debt Coverage Ratio of the Borrower is ____ to ____ as of
______________, 20__.
(d) The Interest Coverage Ratio of the Borrower is ____ to ____ as of
_____________________, 20_____.
DATED this ______ day of ______________________, 20____.
CBL & ASSOCIATES LIMITED PARTNERSHIP
BY: CBL HOLDINGS I, INC.,
Its Sole General Partner
By:
----------------------------------------------
Title:
-------------------------------------------
43
EXHIBIT "F"
LITIGATION
Disclosure Pursuant to Paragraph 5.5
See Exhibit "F-1" attached for description of all litigation.
ENVIRONMENTAL MATTERS
Disclosure pursuant to Paragraph 5.11
None.
44
JOINDER IN AMENDED AND RESTATED LOAN AGREEMENT
KEYBANK NATIONAL ASSOCIATION as "Participant" under the terms of that
certain Amended and Restated Loan Agreement (the "Loan Agreement") dated
effective as of December 30, 2004, between and among First Tennessee Bank
National Association, CBL & Associates Limited Partnership, Lakeshore/Sebring
Limited Partnership and The Lakes Mall, LLC, in consideration of the mutual
agreements of the parties thereto and of the undersigned therein contained,
hereby joins as a party to said Loan Agreement and agrees to perform all
obligations to be performed on its part thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder in Amended
and Restated Loan Agreement to be executed by its duly authorized officer
effective as of December 30, 2004.
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------------
Xxxxxxx Xxxxx, Assistant Vice President
45
JOINDER IN AMENDED AND RESTATED LOAN AGREEMENT
COMPASS BANK as "Participant" under the terms of that certain Amended
and Restated Loan Agreement (the "Loan Agreement") dated effective as of
December 30, 2004, between and among First Tennessee Bank National Association,
CBL & Associates Limited Partnership, Lakeshore/Sebring Limited Partnership and
The Lakes Mall, LLC, in consideration of the mutual agreements of the parties
thereto and of the undersigned therein contained, hereby joins as a party to
said Loan Agreement and agrees to perform all obligations to be performed on its
part thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder in Amended
and Restated Loan Agreement to be executed by its duly authorized officer
effective as of December 30, 2004.
COMPASS BANK
By: /s/ C. Xxxxxxx Xxxxxx
------------------------------------------
C. Xxxxxxx Xxxxxx, Senior Vice President
46
JOINDER IN AMENDED AND RESTATED LOAN AGREEMENT
AMSOUTH BANK OF TENNESSEE as "Participant" under the terms of that
certain Amended and Restated Loan Agreement (the "Loan Agreement") dated
effective as of December 30, 2004 between and among First Tennessee Bank
National Association, CBL & Associates Limited Partnership, Lakeshore/Sebring
Limited Partnership and The Lakes Mall, LLC, in consideration of the mutual
agreements of the parties thereto and of the undersigned therein contained,
hereby joins as a party to said Loan Agreement and agrees to perform all
obligations to be performed on its part thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder in Amended
and Restated Loan Agreement to be executed by its duly authorized officer
effective as of December 30, 2004.
AMSOUTH BANK OF TENNESSEE
By: /s/ Xxxxx X. XxXxxxxx
-----------------------------------------
Xxxxx X. XxXxxxxx, Vice President
47
JOINDER IN AMENDED AND RESTATED LOAN AGREEMENT
BRANCH BANKING AND TRUST COMPANY as "Participant" under the terms of
that certain Amended and Restated Loan Agreement (the "Loan Agreement") dated
effective as of December 30, 2004, between and among First Tennessee Bank
National Association, CBL & Associates Limited Partnership, Lakeshore/Sebring
Limited Partnership and The Lakes Mall, LLC, in consideration of the mutual
agreements of the parties thereto and of the undersigned therein contained,
hereby joins as a party to said Loan Agreement and agrees to perform all
obligations to be performed on its part thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder in Amended
and Restated Loan Agreement to be executed by its duly authorized officer
effective as of December 30, 2004.
BRANCH BANKING AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Title: Senior Vice President
