Exhibit 10.19.1
SunTrust Bank,
as Lender
and
CBL & Associates Limited Partnership,
as Borrower
THIRD AMENDED AND RESTATED LOAN AGREEMENT
September 24, 2003
<PAGE>
Table of Contents
THIRD AMENDED AND RESTATED LOAN
AGREEMENT....................................1
-----------------------------------------
Recitals of
Fact.............................................................1
----------------
AGREEMENTS...................................................................2
----------
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS...........................2
---------
--------------------------------
1.1 Certain
Defined Terms...............................................2
---
---------------------
Additional
Costs.............................................................2
----------------
Adjusted Asset
Value.........................................................2
--------------------
Advance......................................................................2
-------
Affiliate....................................................................2
---------
Agreement
Date...............................................................3
--------------
ANB..........................................................................3
---
Applicable
Law...............................................................3
--------------
Appraisal....................................................................3
---------
Appraised
Value..............................................................3
---------------
Assignment of Leases and
Rents...............................................3
------------------------------
Bank.........................................................................3
----
Base
Rate....................................................................4
---------
Base Rate
Advance............................................................4
-----------------
Borrower.....................................................................4
--------
Borrowing
Base...............................................................4
--------------
Borrowing Base
Certificate...................................................4
--------------------------
Business
Day.................................................................4
------------
Capital
Stock................................................................4
-------------
CBL Management,
Inc..........................................................4
--------------------
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CBL Properties,
Inc..........................................................4
--------------------
Closing
Date.................................................................4
------------
Closing
Documents............................................................5
-----------------
Collateral...................................................................5
----------
Collateral
Documents.........................................................5
--------------------
Collateral
Property..........................................................5
-------------------
Commitment...................................................................5
----------
Compliance
Certificate.......................................................5
----------------------
Contingent
Obligations.......................................................5
----------------------
Continue, Continuation, and
Continued........................................5
-------------------------------------
Convert, Conversion and
Converted............................................5
---------------------------------
Cool Springs Crossing
Mortgage...............................................5
------------------------------
Credit
Event.................................................................6
------------
Debt
Service.................................................................6
------------
Default......................................................................6
-------
Default
Rate.................................................................6
------------
Dollars......................................................................6
-------
EBITDA.......................................................................6
------
Environmental Indemnity
Agreement............................................7
---------------------------------
Environmental
Laws...........................................................7
------------------
Equity
Interest..............................................................7
---------------
Equity
Issuance..............................................................7
---------------
ERISA........................................................................7
-----
ERISA
Group..................................................................7
-----------
Event of
Default.............................................................7
----------------
Existing Foothills
Mortgage..................................................7
---------------------------
Existing
Mortgages...........................................................8
------------------
ii
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Existing Revolver
Balance....................................................8
-------------------------
Extension of
Credit..........................................................8
-------------------
Fees.........................................................................8
----
FIRREA.......................................................................8
------
First Restated Loan
Agreement................................................8
-----------------------------
Floating Rate
Debt...........................................................8
------------------
Funds from
Operations........................................................8
---------------------
GAAP.........................................................................8
----
General
Partner..............................................................9
---------------
Governmental
Approvals.......................................................9
----------------------
Governmental
Authority.......................................................9
----------------------
Gross Asset
Value............................................................9
-----------------
Guarantor...................................................................10
---------
Guaranty, Guaranteed or to
Guarantee........................................10
------------------------------------
Hazardous
Substances........................................................10
--------------------
Indebtedness................................................................11
------------
Interest
Expense............................................................11
----------------
Interest
Period.............................................................12
---------------
Internal Revenue
Code.......................................................12
---------------------
Investment..................................................................12
----------
Lending
Office..............................................................12
--------------
LIBOR.......................................................................12
-----
LIBOR
Advance...............................................................13
-------------
Lien........................................................................13
----
Loan........................................................................13
----
Loan
Advance................................................................13
------------
Loan
Agreement..............................................................13
--------------
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Loan
Balance................................................................13
------------
Loan
Document...............................................................13
-------------
Loan
Party..................................................................13
----------
Major
Leases................................................................13
------------
Major Property-Level
Agreements.............................................14
-------------------------------
Malls.......................................................................14
-----
Management
Company..........................................................14
------------------
Material Adverse
Effect.....................................................14
-----------------------
Maximum
Rate................................................................14
------------
Mortgages...................................................................14
---------
Net Operating
Income........................................................14
--------------------
Net
Proceeds................................................................15
------------
Nonrecourse
Indebtedness....................................................15
------------------------
Note........................................................................15
----
Notice of
Borrowing.........................................................15
-------------------
Notice of
Continuation......................................................15
----------------------
Notice of
Conversion........................................................15
--------------------
Obligations.................................................................15
-----------
Off-Balance Sheet
Liabilities...............................................16
-----------------------------
Operating
Company...........................................................16
-----------------
Operating Company
Guaranty..................................................16
--------------------------
Ownership
Share.............................................................16
---------------
Parent......................................................................16
------
Permanent Loan
Estimate.....................................................16
-----------------------
Permitted
Deficiency........................................................16
--------------------
Permitted
Encumbrances......................................................16
----------------------
Permitted
Liens.............................................................17
---------------
iv
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Person......................................................................18
------
Principal
Office............................................................18
----------------
Principals..................................................................18
----------
Property....................................................................18
--------
Property Management
Agreements..............................................18
------------------------------
Property Management Contract
Assignment.....................................18
---------------------------------------
Protective
Advance..........................................................18
------------------
Recitals....................................................................18
--------
Recourse
Indebtedness.......................................................19
---------------------
Regulatory
Change...........................................................19
-----------------
REIT........................................................................19
----
Renewal
Date................................................................19
------------
Restated
Note...............................................................19
-------------
Restricted
Payment..........................................................19
------------------
Revolving
Advance...........................................................19
-----------------
Second Restated Loan
Agreement..............................................20
------------------------------
Second Restated
Note........................................................20
--------------------
Securities
Act..............................................................20
--------------
Senior
Officer..............................................................20
--------------
Significant
Subsidiary......................................................20
----------------------
Solvent.....................................................................20
-------
Subordinated
Debt...........................................................20
-----------------
Subsidiary..................................................................20
----------
Tangible Net
Worth..........................................................20
------------------
Taxes.......................................................................20
-----
Termination
Date............................................................21
----------------
Term Out
Option.............................................................21
---------------
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Term Out
Amount.............................................................21
---------------
Total
Liabilities...........................................................21
-----------------
Type........................................................................22
----
UCC.........................................................................22
---
Unconsolidated
Affiliate....................................................22
------------------------
Wholly Owned
Subsidiary.....................................................22
-----------------------
1.2 Accounting
Terms...................................................22
---
----------------
ARTICLE 2
COMMITMENT: FUNDING AND TERMS OF REVOLVING CREDIT LOAN....22
---------
------------------------------------------------------
2.1 Revolving
Advances.................................................22
---
------------------
(a) Making of Revolving
Advances.......................................22
---
----------------------------
(b) Requests for Revolving
Advances....................................23
---
-------------------------------
(c) Funding of Revolving
Advances......................................23
---
-----------------------------
2.2 Rates and
Payment of Interest on Advances..........................23
---
-----------------------------------------
(a)
Rates..............................................................23
--- -----
(b) Payment of
Interest................................................24
--- -------------------
2.3 Number of
Interest Periods.........................................24
---
--------------------------
2.4 Repayment
of Advances..............................................24
---
---------------------
2.5
Prepayments........................................................24
---
-----------
(a)
Optional...........................................................24
--- --------
(b)
Mandatory..........................................................24
--- ---------
(i)
Commitment
Overadvance..........................................24
---
----------------------
(ii)
Borrowing Base Overadvance...................................24
----
--------------------------
2.6 Late
Charges.......................................................25
---
------------
2.7 Provisions
Applicable to LIBOR Advances; Limitation on Base
Rate
Advances..................................................25
---
-----------------------------------------------------------
(a) Continuation of LIBOR
Advances.....................................25
---
------------------------------
(b) Conversion of LIBOR
Advances.......................................25
---
----------------------------
(c) Conditions to Conversion and
Continuation..........................26
---
-----------------------------------------
(d) Limitation on Interest
Period Duration During Default..............26
---
-----------------------------------------------------
2.8
Note...............................................................26
--- ----
2.9 Voluntary
Reductions of the Commitment.............................26
---
--------------------------------------
2.10 Amount
Limitations.................................................26
---- ------------------
2.11 Funding
the Loan..................................................27
----
-----------------
2.12
Payments...........................................................27
---- --------
2.13
Computations.......................................................27
---- ------------
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2.14
Taxes..............................................................27
---- -----
(a) Taxes
Generally....................................................27
--- ---------------
(b) Tax
Indemnification................................................28
--- -------------------
2.15 Transition
Provisions..............................................28
----
---------------------
ARTICLE 3
REQUIRED PAYMENTS, PLACE OF PAYMENT, ETC..................28
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-----------------------------------------
3.1 Payment of
Principal and Interest..................................28
---
---------------------------------
3.2
Prepayments........................................................28
---
-----------
(a)
Optional...........................................................28
--- --------
(b)
Mandatory..........................................................29
--- ---------
(i)
Commitment
Overadvance..........................................29
---
----------------------
(ii)
Borrowing Base Overadvance...................................29
----
--------------------------
3.3 Place and
Time of Payments.........................................29
---
--------------------------
ARTICLE 4
CONDITIONS OF LENDING.....................................29
---------
---------------------
4.1 Conditions
Precedent to Closing and Continued Advances.............29
---
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4.2 Conditions
Precedent to All Revolving Credit Loan Advances.........30
---
----------------------------------------------------------
ARTICLE 5
YIELD PROTECTION, ETC.....................................31
---------
----------------------
5.1 Additional
Costs; Capital Adequacy.................................31
---
----------------------------------
(a) Additional
Costs...................................................31
--- ----------------
(b) Bank's Suspension of LIBOR
Advances................................32
---
-----------------------------------
(c) Notification and
Determination of Additional Costs.................32
---
--------------------------------------------------
5.2 Suspension
of LIBOR Advances.......................................32
---
----------------------------
5.3
Illegality.........................................................33
--- ----------
5.4
Compensation.......................................................33
---
------------
5.5 Treatment
of Affected Advances.....................................33
---
------------------------------
5.6 Change of
Lending Office...........................................34
---
------------------------
5.7
Assumptions Concerning Funding of LIBOR
Advances...................34
---
------------------------------------------------
ARTICLE 6
REPRESENTATIONS AND WARRANTIES............................34
---------
------------------------------
6.1
Partnership
Status.................................................34
---
------------------
6.2 Power and
Authority................................................35
---
-------------------
6.3 Financial
Condition................................................35
---
-------------------
6.4 Title to
Assets....................................................36
---
---------------
6.5 No
Litigation......................................................36
---
-------------
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6.6
Taxes..............................................................36
--- -----
6.7 Contracts
or Restrictions Affecting Borrower.......................36
---
--------------------------------------------
6.8 No
Default.........................................................36
--- ----------
6.9 Patents
and Trademarks.............................................36
---
----------------------
6.10
ERISA..............................................................36
---- -----
6.11 Hazardous
Substances...............................................36
----
--------------------
6.12 Ownership of
Borrower..............................................37
----
---------------------
6.13 Compliance With
Applicable Laws....................................37
----
-------------------------------
ARTICLE 7
AFFIRMATIVE COVENANTS OF BORROWER.........................37
---------
---------------------------------
7.1
Preservation of Existence and Similar
Matters......................37
---
---------------------------------------------
7.2 Compliance with
Applicable Law.....................................37
---
------------------------------
7.3
Maintenance of
Property............................................37
---
-----------------------
7.4
Insurance..........................................................38
--- ---------
7.5 Payment of
Taxes and Claims........................................38
---
---------------------------
7.6 Books and
Records; Inspections.....................................38
---
------------------------------
7.7 Use of
Proceeds....................................................38
---
---------------
7.8
Environmental
Matters..............................................39
---
---------------------
7.9 Further
Assurances.................................................39
---
------------------
7.10 REIT
Status........................................................39
---- -----------
7.11 Exchange
Listing...................................................39
---- ----------------
7.12 Major
Property-Level Agreements; Major Leases; SNDAs...............40
----
----------------------------------------------------
(a) Major Property-Level
Agreement and Major Leases....................40
---
-----------------------------------------------
(b)
SNDAs..............................................................40
--- -----
7.13 Single Asset
Entities..............................................40
----
---------------------
ARTICLE 8
INFORMATION..............................................40
---------
------------
8.1 Quarterly
Financial Statements.....................................40
---
------------------------------
8.2 Year-End
Statements................................................41
---
-------------------
8.3 Compliance
Certificate.............................................41
---
----------------------
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8.4 Other
Information..................................................41
---
-----------------
ARTICLE 9
NEGATIVE COVENANTS........................................43
---------
------------------
9.1 Financial
Covenants................................................43
---
-------------------
(a) Minimum Tangible Net
Worth.........................................43
---
--------------------------
(b) Ratio of Total Liabilities
to Gross Asset Value....................43
---
-----------------------------------------------
(c) Ratio of EBITDA to Interest
Expense................................43
---
-----------------------------------
(d) Ratio of EBITDA to Debt
Service....................................43
---
-------------------------------
(e) Dividends and Other
Restricted Payments............................44
---
---------------------------------------
(f) Permitted
Investments..............................................44
--- ---------------------
(g) Value of Borrower Owned by
Parent..................................45
---
---------------------------------
9.2 Negative
Pledge....................................................45
---
---------------
9.3
Restrictions on Intercompany
Transfers.............................45
---
--------------------------------------
9.4 Merger,
Consolidation, Sales of Assets and Other Arrangements......46
---
-------------------------------------------------------------
9.5
Acquisitions.......................................................46
---
------------
9.6
Plans..............................................................47
--- -----
9.7 Fiscal
Year........................................................47
---
-----------
9.8
Modifications of Organizational
Documents..........................47
---
-----------------------------------------
9.9 Major
Construction.................................................47
---
------------------
9.10 Transactions
with Affiliates.......................................47
----
----------------------------
ARTICLE 10
DEFAULT...................................................48
----------
-------
10.1 Events of
Default..................................................48
----
-----------------
(a) Default in
Payment.................................................48
--- ------------------
(b) Default in
Performance.............................................48
--- ----------------------
(c)
Misrepresentations.................................................48
--- ------------------
(d) Material Extension of Credit
Cross-Default.........................49
---
------------------------------------------
(i)
Extensions of
Credit Owed to Bank...............................49
---
---------------------------------
(A) Failure to
Pay............................................49
---
--------------
(B)
Acceleration..............................................49
---
------------
(C) Mandatory
Repurchase......................................49
---
--------------------
(ii)
Extension of Credit Owed to Third Parties....................49
----
-----------------------------------------
(A)
Acceleration..............................................49
---
------------
(B) Mandatory
Repurchase......................................49
---
--------------------
(e) Voluntary Bankruptcy
Proceeding....................................49
---
-------------------------------
(f) Involuntary Bankruptcy
Proceeding..................................50
---
---------------------------------
(g) Revocation of Loan
Documents.......................................50
---
----------------------------
(h)
Judgment...........................................................50
--- --------
(i)
Attachment.........................................................50
--- ----------
(j) Loan
Documents.....................................................51
--- --------------
(l) Damage; Strike;
Casualty...........................................52
--- ------------------------
10.2 Remedies Upon
Event of Default.....................................52
----
------------------------------
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(a) Acceleration; Termination of
Commitment............................52
---
---------------------------------------
(i)
Automatic.......................................................52
---
---------
(ii)
Optional.....................................................52
----
--------
(b) Loan
Documents.....................................................52
--- --------------
(c) Applicable
Law.....................................................52
--- --------------
(d) Appointment of
Receiver............................................52
--- -----------------------
10.3 Remedies Upon
Default..............................................53
----
---------------------
10.4 Curing Defaults
Under Collateral Documents.........................53
----
------------------------------------------
10.5 Permitted
Deficiency...............................................53
----
--------------------
(a)
Generally..........................................................53
--- ---------
(b)......................................................................54
---
10.6 Marshaling;
Payments Set Aside.....................................54
----
------------------------------
10.7 Allocation of
Proceeds.............................................55
----
----------------------
10.8 Performance by
Bank................................................55
----
-------------------
10.9 Rights
Cumulative..................................................55
----
-----------------
ARTICLE 11
MISCELLANEOUS.............................................56
----------
-------------
11.1
Amendments.........................................................56
---- ----------
11.2
Notices............................................................56
---- -------
11.3 No Waiver.
Cumulative
Remedies....................................56
----
-------------------------------
11.4
Indemnification....................................................56
---- ---------------
11.5 Survival of
Agreements.............................................56
----
----------------------
11.6 Governing
Law......................................................56
---- -------------
11.7 Execution in
Counterparts..........................................57
----
-------------------------
11.8 Terminology,
Section Headings......................................57
----
-----------------------------
11.9 Enforceability
of Agreement........................................57
----
---------------------------
11.10 Interest
Limitations...............................................57
----- --------------------
11.11
Non-Control........................................................58
----- -----------
11.12 Loan Review,
Extensions of Termination Date; Continuing Security...58
-----
----------------------------------------------------------------
11.13 Existing
Mortgages.................................................59
----- ------------------
11.14 Fees and
Expenses..................................................59
----- -----------------
11.15 Time of
Essence....................................................59
----- ---------------
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11.16 Compromises, Releases,
Etc.........................................59
-----
---------------------------
11.17 Limited Nature of
Parent's Obligations.............................59
-----
--------------------------------------
11.18 Bank's
Consent.....................................................60
----- --------------
11.19 Venue of
Actions...................................................60
----- ----------------
11.20 Waiver of Right to
Trial By Jury...................................60
-----
--------------------------------
11.21
Conflict...........................................................61
----- --------
11.22 No
Novation........................................................61
----- -----------
EXHIBIT A
MORTGAGES.................................................63
---------
---------
EXHIBIT B
Compliance Certificate....................................65
---------
----------------------
EXHIBIT C
NOTICE OF BORROWING.......................................66
---------
-------------------
EXHIBIT D
NOTICE OF CONTINUATION....................................68
---------
----------------------
EXHIBIT E
NOTICE OF CONVERSION......................................70
---------
--------------------
EXHIBIT F
BORROWING BASE CERTIFICATE................................72
---------
--------------------------
xi
<PAGE>
THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AGREEMENT (the "Loan
Agreement")
is entered into as of this 24th day of
September, 2003 by and between SUNTRUST
BANK, a Georgia banking corporation (the
"Bank") with offices at 736 Market
Street, Chattanooga, Tennessee, 37402 and
CBL & ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership ("Borrower")
with offices at 2030 Hamilton Place
Boulevard, Suite 500, Chattanooga,
Tennessee, 37421-6000, and amends and
restates in its entirety that certain
Second Amended and Restated Loan Agreement
dated as of the 30th day of October, 2001,
by and between Borrower and the Bank,
as the same may have heretofore been
amended (the "Second Restated Loan
Agreement") and consolidates thereunder
certain other indebtedness of the
Borrower to the Bank as hereinafter set
forth.
Recitals of Fact
A........Borrower previously requested that the Bank commit to
make
loans and advances to it on a revolving
credit basis in an amount not to exceed
at any one time outstanding the principal
sum of Ten Million and No/100 Dollars
($10,000,000.00) (the "Existing Revolver")
for the purpose of providing working
capital for pre-development expenses,
development costs, equity investments,
repayment of existing indebtedness, certain
distributions to limited partners,
letters of credit, construction costs and
for general partnership purposes
pursuant to the Second Restated Loan
Agreement. The Bank agreed to and has made
such loans and advances on the terms and
conditions specified in the Second
Restated Loan Agreement.
B........The advances made to Borrower pursuant to the Second
Restated
Loan Agreement are evidenced by a certain
Second Restated Revolving Credit Note
executed and delivered by Borrower in the
original principal amount of
$10,000,000.00 and payable to the order of
the Bank (the "Second Restated
Note").
C........The Second Restated Note is secured by, inter alia,
certain
mortgages, deeds of trust, deeds to secure
debt, security agreements and
assignments more fully described on Exhibit
"A" (individually and collectively
the "Existing Mortgages").
D........Borrower has proposed that (1) the Bank release
certain
Existing Mortgages securing the Existing
Revolver and substitute therefor a
first priority deed of trust against
certain property located in Williamson
County, Tennessee commonly known as Cool
Springs Crossing; and (2) extend and
amend the Existing Revolver pursuant to
this Loan Agreement and other Loan
Documents.
E........The Bank has agreed to the Borrower's proposal, and the
Bank
and Borrower have agreed in connection
therewith to amend and restate the Second
Restated Loan Agreement and Second Restated
Note without giving rise to a
novation or otherwise satisfying, paying,
releasing, discharging, subordinating,
or waiving all or any portion of the
Existing Revolver, the outstanding
indebtedness and accrued interest evidenced
by the Second Restated Note, and/or
the perfection, attachment, priority and/or
perfection of the liens,
1
<PAGE>
encumbrances and continuing security
interests which secure the repayment of the
Existing Revolver pursuant to the Foothills
Mortgage (as hereinafter defined).
NOW, THEREFORE, in consideration of the Recitals of Fact set
forth
above and the mutual agreements herein
contained, and other good and valuable
consideration, the receipt and legal
sufficiency of which is hereby
acknowledged, and intending to be legally
bound hereby, the parties agree as
follows:
AGREEMENTS
ARTICLE 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:
"Additional Costs" has the meaning given that term in Section
5.1.
"Adjusted Asset Value" means, as of a given date, the sum of: (a)
(i)
EBITDA attributable to malls and power
centers for the fiscal quarter most
recently ended times (ii) 4; divided by
(iii) 8.5% plus (b) (i) EBITDA
attributable to all other assets for the
fiscal quarter most recently ended
times (ii) 4; divided by (iii) 9.25%. In
determining Adjusted Asset Value (i)
EBITDA attributable to real estate
properties acquired during such fiscal
quarter, and EBITDA attributable to
Properties development of which was
completed during such fiscal quarter, shall
be disregarded, (ii) EBITDA
attributable to any Property which is
currently under development shall be
excluded, (iii) with respect to any
Subsidiary that is not a Wholly Owned
Subsidiary, only the Borrower's Ownership
Share of the EBITDA attributable to
such Subsidiary shall be used when
determining Adjusted Asset Value, and (iv)
EBITDA shall be attributed to malls and
power centers based on the ratio of (x)
revenues less property operating expenses
(to be determined exclusive of
interest expense, depreciation and general
and administrative expenses) of malls
and power centers to (y) total revenues
less total property operating expenses
(similarly determined), such revenues and
expenses to be determined on a
quarterly basis in a manner consistent with
the Parent's method of reporting of
segment information in the notes to its
financial statements for the fiscal
quarter ended September 30, 2002 as filed
with the Securities and Exchange
Commission, and otherwise in a manner
reasonably acceptable to the Bank. In
addition, in the case of any operating
Property acquired in the immediately
preceding period of twelve consecutive
months for a purchase price indicative of
a capitalization rate of less than 8.5%,
EBITDA attributable to such Property
shall he excluded from the determination of
Adjusted Asset Value.
"Advance" shall mean, individually and collectively, the
Consolidated
Loan Balance on the Closing Date and all
subsequent Loan Advances.
"Affiliate" means any Person: (a) directly or indirectly
controlling,
controlled by, or under common control
with, the Borrower; (b) directly or
2
<PAGE>
indirectly owning or holding ten percent
(10.0%) or more of any Equity Interest
in the Borrower; or (c) ten percent (10.0%)
or more of whose voting stock or
other Equity Interests are directly or
indirectly owned or held by the Borrower.
For purposes of this definition,. "control"
(including with correlative
meanings, the terms "controlling,"
"controlled by," and "under common control
with") means the possession directly or
indirectly of the power to direct or
cause the direction of the management and
policies of a Person, whether through
the ownership of voting securities or by
contract or otherwise. The Affiliates
of a Person shall include any officer or
director of such Person. In no event
shall the Bank be deemed to be an Affiliate
of the Borrower or any other Loan
Party.
"Agreement Date" means the date as of which this Loan Agreement
is
dated.
"ANB" means American National Bank and Trust Company of
Chattanooga, a
national banking association and
predecessor-in-interest to the Bank.
"Applicable Law" means all applicable provisions of
constitutions,
statutes, rules, regulations and orders of
all governmental bodies and all
orders and decrees of all courts, tribunals
and arbitrators.
"Appraisal" means, with respect to each Collateral Property, an
M.A.I.
appraisal commissioned by and addressed to
the Bank (acceptable to the Bank as
to form, substance and appraisal date),
prepared by a professional appraiser
acceptable to the Bank, having at least the
minimum qualifications required
under Applicable Law governing the Bank,
including without limitation, FIRREA,
and determining the "as is" market value of
such Property as between a willing
buyer and a willing seller.
"Appraised Value" means, with respect to each Collateral Property,
the
"as is" market value of such Collateral
Property as set forth in the most recent
Appraisal of such Collateral Property as
the same may have been reasonably
adjusted by the Bank based upon its
internal review of such Appraisal which is
based on criteria and factors then
generally used and considered by the Bank in
determining the value of similar real
estate properties, which review shall be
conducted prior to acceptance of such
Appraisal by the Bank and in any event
within 7 Business Days after receipt by the
Bank of such Appraisal. If an
Appraisal of a Property is performed after
the occurrence of either (a) a
casualty affecting such Property or (b) a
condemnation of a portion of such
Property which results in a loss of less
than 10% of the acreage of the Property
and of no portion of the principal
structures, but prior to complete restoration
of the same, the Appraised Value shall, to
the extent permitted by applicable
regulations, be made on an "as-restored"
basis.
"Assignment of Leases and Rents" means any assignment of leases
and
rents or similar instrument executed by any
Loan Party in favor of and for the
benefit of the Bank in form and substance
satisfactory to the Bank with respect
to any Collateral Property.
"Bank" means SunTrust Bank, a Georgia banking corporation,
together
with its predecessors in interest and its
successors and assigns, as may be
applicable.
3
<PAGE>
"Base Rate" means the "prime" commercial rate of interest
established
from time to time by Bank. The currently
existing Base Rate on the Agreement
Date is four percent (4.00 %) per annum.
The Base Rate is not necessarily the
lowest rate charged by the Bank on loans
which it makes.
"Base Rate
Advance" means a Revolving Advance bearing interest at a
rate based on the Base Rate.
"Borrower" has the meaning set forth in the introductory
paragraph
hereof and shall include the Borrower's
successors and permitted assigns.
"Borrowing Base" means an amount equal to the lesser of (a) 75% of
the
Appraised Value of all Collateral
Properties, or (b) the Permanent Loan Estimate
of all Collateral Properties. So long as
any of the following conditions exist
with respect to a Collateral Property, the
amount of the Borrowing Base
attributable to a Collateral Property shall
equal $0: (x) the Bank shall not
hold a valid and perfected first priority
Lien in such Property, or (y) an Event
of Default under and as defined under a
Collateral Document encumbering such
Collateral Property shall exist.
"Borrowing Base Certificate" means a report in substantially the
form
of Exhibit F, certified by a Senior
Officer, the controller or the chief
accounting officer of the Borrower, setting
forth the calculations required to
establish the Borrowing Base for all
Collateral Properties as of a specified
date, all in form and detail satisfactory
to the Bank.
"Business Day" means (a) any day other than a Saturday, Sunday or
other
day on which banks in Atlanta, Georgia are
authorized or required to close and
(b) with reference to a LIBOR Advance, any
such day that is also a day on which
dealings in Dollar deposits are carried out
in the London Interbank market.
"Capital Stock" shall mean, as to any Person, any and all
shares,
interests, warrants, participations or
other equivalents (however designated) of
corporate stock of such Person.
"CBL Management, Inc." means CBL & Associates Management, Inc.,
a
Delaware corporation.
"CBL Properties, Inc." means CBL & Associates Properties, Inc.,
a
publicly traded Delaware corporation that
has elected to be a real estate
investment trust pursuant to applicable
provisions of the Internal Revenue Code
of 1986, as amended. CBL & Associates Properties,
Inc. owns 100% of the
capital of CBL Holdings I, Inc. which is
the sole general partner of CBL &
Associates Limited Partnership.
"Closing Date" means the date upon which this Loan Agreement and
the
other Closing Documents are executed and
delivered in accordance with the
requirements and provisions of this
Agreement.
4
<PAGE>
"Closing Documents" means, individually and collectively, this
Loan
Agreement, the Note and all of the
assignments, instruments, certificates,
opinions, agreements, amendments,
restatements and/or other documents each of
the Loan Parties and/or the Parent is
required to execute and deliver on or
before the Closing Date.
"Collateral" means any real or personal property, including, but
not
limited to the Collateral Properties,
directly or indirectly securing any of the
Obligations or any other obligation of a
Person under or in respect of any Loan
Document to which it is a party, and
includes, without limitation, all property
subject to a Lien created by a Collateral
Document.
"Collateral Documents" means, individually and collectively, the
Parent
Guaranty, the Operating Company Guaranties,
the Mortgages, any Assignment of
Leases and Rents, any Property Management
Contract Assignments, and any other
security agreement, financing statement, or
other document, instrument or
agreement creating, evidencing or
perfecting the Bank's Liens in any of the
Collateral.
"Collateral Property" means, individually and collectively, the
real
property encumbered by the Existing Cool
Springs Crossing Mortgage and Existing
Foothills Mortgage, together with all
improvements now or hereafter located
thereon, all leases, rents and profits
related thereto or arising therefrom, all
easements, rights-of-way, licenses and
other appurtenances pertaining to any
such real estate and any and all other
types or items of property related
thereto which is encumbered by any
Collateral Document.
"Commitment" has
the meaning ascribed to such term in Section 2.1.
"Compliance Certificate" has the meaning given that term in
Section
8.3.
"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.
"Continue," "Continuation," and "Continued" each refers to the
continuation of' a Revolving Advance which
is a LIBOR Advance from one Interest
Period to another Interest Period pursuant
to Section 2.8.
"Convert", "Conversion" and "Converted" each refers to the
conversion
of a Revolving Advance of one Type into a
Revolving Advance of another Type
pursuant to Section 2.8.
"Cool Springs Crossing Mortgage" means that certain Tennessee Deed
of
Trust with Assignment of Rents and Leases
and Security Agreement of even date
herewith to be executed and delivered by
the Cool Springs Crossing Limited
Partners, as the same may hereafter be
extended, amended, supplemented, modified
or restated.
5
<PAGE>
"Credit Event" means any of the following: (a) the making (or
deemed
making) of any Advance (b) the Conversion
of a Revolving Advance, and (c) the
Continuation of a LIBOR Advance.
"Debt Service" means. with respect to a Person and in any given
period,
the sum of the following: (a) such Person's
Interest Expense for such period;
(b) regularly scheduled principal payments
on Indebtedness of such Person made
(during such period, other than any
balloon, bullet or similar principal payment
payable on any Indebtedness of such Person
which repays such indebtedness in
full; and (c) such Person's Ownership Share
of the amount of any payment of the
type described in the immediately preceding
clause (b) of Unconsolidated
Affiliates of such Person.
"Default" means any of the events specified in Section 10.1,
whether or
not there has been satisfied any
requirement for the giving of notice, the lapse
of time, or both.
"Default Rate" means a rate per annum equal to the Base Rate as
in
effect from time to time plus four percent
(4.0%).
"Dollars" or "$" means the lawful currency of the United States
of
America.
"EBITDA" means, for any period, net income (loss) of the Parent and
its
Subsidiaries determined on a consolidated
basis for such period excluding the
following amounts (but only to the extent
included in determining net income
(loss) for such period and without
duplication):
(a)......depreciation and amortization expense and other
non-cash
charges for such period less depreciation
and amortization expense allocable to
minority interest in Subsidiaries of the
Borrower for such period;
(b)......interest expense for such period less interest expense
allocable to minority interest in
Subsidiaries of the Borrower for such period;
(c)......minority interest in earnings of the Borrower for such
period;
(d)......extraordinary and nonrecurring net gains or losses (other
than
gains or losses from the sale of outparcels
of Properties) for such period and
expense relating to the extinguishments of
Indebtedness for such period;
(e)......net gains or losses on the disposal of discontinued
operations for such period;
(f)......expenses incurred during such period with respect to any
real
estate project abandoned by the Parent or
any Subsidiary in such period;
(g)......income tax expense in respect of such period;
(h)......the Parent's Ownership Share of depreciation and
amortization
expense and other non-c ash charges of
Unconsolidated Affiliates of the Parent
for such period; and
6
<PAGE>
(i)......the Parent's Ownership Share of interest expense of
Unconsolidated Affiliates of the Parent tor
such period.
"Environmental Indemnity Agreement" means an Environmental
Indemnity
Agreement executed and delivered, by the
Borrower, and each of the other Loan
Parties, in favor of the Bank on or before
the Closing Date and in form and
content acceptable to the Bank.
"Environmental Laws" means any Applicable Law relating to
environmental
protection or the manufacture, storage,
disposal or clean-up of Hazardous
Substances including, without limitation,
the following: Clean Air Act, 42
U.S.C. ss. 7401 et seq.; Federal Water
Pollution Control Act, 33 U.S.C. ss. 1251
et seq.; Solid Waste Disposal Act, 42
U.S,C. ss. 6901 et seq.; Comprehensive
Environmental Response, Compensation and
Liability Act, 42 U.S,C. ss. 9601 et
seq.; National Environmental Policy Act, 42
U,S.C. ss.4321 et seq.; regulations
of the Environmental Protection Agency and
any applicable rule of common law and
any judicial interpretation thereof
relating primarily to the environment or
Hazardous Substances.
"Equity Interest" means, with respect to an Person, any
membership
interest, partnership interest or share of
Capital Stock of (or other ownership
or profit interests in) such Person, any
warrant, option or other right for the
purchase or other acquisition from such
Person of any membership interest,
partnership interest or share of Capital
Stock of (or other ownership or profit
interests in) such Person, any security
convertible into or exchangeable for any
membership interest, partnership interest
or share of Capital Stock of (or other
ownership or profit interests in) such
Person or warrant, right or option for
the purchase or other acquisition from such
Person of such shares (or such other
interests), and any other Ownership Share
or profit interest in such Person
(including without limitation, partnership,
member or trust interests therein)
whether voting or nonvoting, whether or not
certificated, and whether or not
such share, warrant, option, right or other
interest is authorized or otherwise
existing on any date of determination.
"Equity Issuance" means any issuance or sale by a Person of any
Equity
Interest,
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
in effect from time to time.
"ERISA Group" means the Borrower, any Subsidiary and all members of
a
controlled group of corporations and all
trades or businesses (whether or not
incorporated) under common control which,
together with the Borrower or any
Subsidiary, are treated as a single
employer under Section 414 of the Internal
Revenue Code,
"Event of Default" means any of the events specified in Section
10.1,
provided that any requirement for notice or
lapse of time or any other condition
has been satisfied.
"Existing Foothills Mortgage" means that certain Tennessee Deed
of
Trust and Security Agreement originally
recorded in Book 648, Page 5 of the
7
<PAGE>
Register's Office of Blount County,
Tennessee, as the same may have heretofore
been amended and/or restated, together with
all assignments of leases and/or
rents granted in favor of the Bank and/or
its predecessors in interest.
"Existing Mortgages" has the meaning set forth in the Recitals
above.
"Existing Revolver Balance" means the sum of $5,100,000.00 which
is
outstanding under the Second Restated Note
and Second Restated Loan Agreement as
of the Agreement Date.
"Extension of Credit" means, with respect to a Person, any of
the
following, whether secured or unsecured:
(a) loans to such Person, including
without limitation, lines of credit and
mortgage loans; (b) bonds, debentures,
notes and similar instruments issued by
such Person; (c) reimbursement
obligations of such Person under or in
respect of any letter of credit; and (d)
any of the foregoing of other Persons, the
payment of which such Person
Guaranteed or is otherwise recourse to such
Person.
"Fees" means the fees and commissions provided for or referred to
in
Section 2.14 and any other fees payable by
the Borrower hereunder or under any
other Loan Document.
"FIRREA" means the Financial Institution Recovery, Reform and
Enforcement Act of 1989, as amended.
"First Restated Loan Agreement" means that certain Amended and
Restated
Loan Agreement between the Borrower and ANB
dated August 23, 1995 between
Borrower and ANB, as the same has been
heretofore amended.
"Floating Rate Debt" means, with respect to any Person, all
Indebtedness of such Person which bears a
variable rate of interest.
"Funds from Operations" means, as to any period, an amount equal to
(a)
income (loss) from operations of Borrower,
CBL Properties, Inc. and their
respective Subsidiaries for such period,
plus (b) depreciation and amortization,
plus (minus) (c) to the extent not included
in clause (a) above, gain (loss) on
the sales of outparcels made in the
ordinary course of business, and after
adjustments for Unconsolidated Affiliates,
determined in each case on a Combined
basis in accordance with GAAP. Adjustments
for Unconsolidated Affiliates will be
calculated to reflect funds from operations
on the same basis.
"GAAP" means United States generally accepted accounting principles
set
forth in the opinions and pronouncements of
the Accounting Principles Board of
the American Institute of Certified Public
Accountants and statements and
pronouncements of the Financial Accounting
Standards Board or in such other
statements by such other entity, including
without limitation. the Securities
and Exchange Commission. as may be approved
by a significant segment of the
accounting profession. which are applicable
to the circumstances as of the date
of determination.
8
<PAGE>
"General Partner" means CBL Holdings I, Inc., a Delaware
corporation,
and a Wholly Owned Subsidiary of the Parent
and the sole general partner of
Borrower, and shall include the General
Partner's successors and permitted
assigns
"Governmental Approvals" means all authorizations, consents,
approvals,
licenses and exemptions of, registrations
and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any United States national, state
or
local government, any political subdivision
thereof or any other governmental,
quasi-governmental, judicial, public or
statutory instrumentality, authority,
body, agency, bureau, commission, board,
department or other entity (including.
without limitation, the Federal Deposit
Insurance Corporation, the Comptroller
of the Currency or the Federal Reserve
Board, any central bank or any comparable
authority) or any arbitrator with authority
to bind a party at law. Federal
Reserve Board, any central bank or any
comparable authority) or any arbitrator
with authority to bind a party at law.
"Gross Asset Value" means, at a given time, the sum (without
duplication) of the following:
(a)......Adjusted Asset Value at such time;
(b)......all cash and cash equivalents of the Parent and its
Subsidiaries determined on a consolidated
basis as of the end of the fiscal
quarter most recently ended (excluding
tenant deposits and other cash and cash
equivalents the disposition of which is
restricted in any way (other than
restrictions in the nature of early
withdrawal penalties));
(c)......with respect to any Property which is under construction
or
the development of which was completed
during the fiscal quarter most recently
ended, the book value of construction in
process as determined in accordance
with GAAP for all such Properties at such
time (including without duplication
the Parent's Ownership Share of all
construction in process of Unconsolidated
Affiliates of the Parent);
(d)......the book value of all unimproved real property of the
Parent
and its Subsidiaries determined on a
consolidated basis;
(e)......the purchase price paid by the Parent or any Subsidiary
(less
any amounts paid to the Parent or such
Subsidiary as a purchase price
adjustment, held in escrow, retained as a
contingency reserve, or other similar
arrangements) as required to be disclosed
in a consolidated balance sheet
(including the notes thereto) of the Parent
for:
(i) any Property (other than a property under development)
acquired by the Parent or such Subsidiary during the Parent's
fiscal
quarter most recently ended; and
(ii) any operating Property acquired in the immediately
preceding period of twelve consecutive months for a purchase
price
indicative of a capitalization rate of less than 8.5%; provided,
that
if the Parent or a Subsidiary acquired such Property together
with
9
<PAGE>
other Properties or other assets and paid an aggregate purchase
price
for such Properties and other assets, then the Parent shall
allocate
the portion of the aggregate purchase price attributable to
such
Property in a manner consistent with reasonable accounting
practices;
(f)......with respect to any purchase obligation, repurchase
obligation
or forward commitment evidenced by a
binding contract included when determining
the Total Liabilities of the Parent and its
Subsidiaries, the reasonably
determined value of any amount that would
be payable, or property that would be
transferable, to the Parent or any
Subsidiary if such contract were terminated
as of such date; and
(g)......to the extent not included in the immediately
preceding
clauses (a) through (f), the value of any
real property owned by a Subsidiary
(that is not a Wholly Owned Subsidiary) of
the Borrower or an Unconsolidated
Affiliate of the Borrower (such Subsidiary
or Unconsolidated Affiliate being a
"JV") and which property secures Recourse
Indebtedness of such JV. For purposes
of this clause (g):
(x) the value of such real property shall be the lesser of (A)
the Permanent Loan Estimate which would be applicable to such
real
property were such property a Collateral Property and (B) the
amount of
Recourse Indebtedness secured by such real property;
(y) in no event shall the aggregate value of such real
property included in Gross Asset Value pursuant to this clause
(g)
exceed $500,000,000.00; and
(z) the value of any such real property shall only be included
in Gross Asset Value if the organizational documents of such JV
provide
that if, and to the extent, such Indebtedness is paid by the
Borrower
or a Subsidiary of the Borrower or by resort to such real
property,
then the Borrower or a Subsidiary of the Borrower shall
automatically
acquire, without the necessity of any further payment or action,
all
Equity Interests in such JV not owned by the Borrower or any
Subsidiary.
"Guarantor" means Cool Springs Crossing Limited Partnership, a
Tennessee limited partnership and any
Person that has executed, or is required
to execute, a Guaranty of the
Obligations.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any
obligation
means and includes (a) a guaranty (other
than by endorsement of negotiable
instruments for collection in the ordinary
course of business), directly or
indirectly, in any manner, of any part or
all of such obligation, or (b) an
agreement, direct or indirect, contingent
or otherwise, and whether or not
constituting a guaranty, the practical
effect of which is to assure the payment
or performance (or payment of damages in
the event of nonperformance) of any
part or all of such obligation.
"Hazardous Substances" means any pollutant, contaminant,
hazardous,
toxic or dangerous waste, substance or
material, or any other substance or
material regulated or controlled pursuant
to any Environmental Law, including,
without limiting the generality of the
foregoing, asbestos, PCBs, petroleum
products (including crude oil, natural gas,
natural gas liquids, liquefied
10
<PAGE>
natural gas or synthetic gas) or any other
substance defined as a "hazardous
substance," "extremely hazardous waste,"
"restricted hazardous waste,"
"hazardous material," "hazardous chemical,"
"hazardous waste," "regulated
substance," "toxic chemical," "toxic
substance" or other similar term in any
Environmental Law.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following
(without duplication):
(a)......all obligations of such Person in respect of money
borrowed;
(b)......all obligations of such Person (other than trade debt
incurred
in the ordinary course of business),
whether or not for money borrowed:
(i) represented by notes payable, or drafts accepted, in each
case representing extensions of credit,
(ii) evidenced by bonds, debentures, notes or similar
instruments, or
(iii) constituting purchase money indebtedness, conditional
sales contracts, title retention debt instruments or other
similar
instruments, upon which interest charges are customarily paid or
that
are issued or assumed as full or partial payment for property;
(c)......capitalized lease obligations of such Person;
(d)......all reimbursement obligations of such Person under or
in
respect of any letters of credit or
acceptances (whether or not the same have
been presented for payment); and
(e)......all Indebtedness of other Persons which (i) such Person
has
Guaranteed or is otherwise recourse to such
Person or (ii) is secured by a Lien
on any property of such Person.
"Interest Expense" means, with respect to a Person and for any
period,
(a)......the total interest expense (including, without
limitation,
interest expense attributable to
capitalized lease obligations) of such Person
and in any event shall include all letter
of credit fees amortized as interest
expense and all interest expense with
respect to any Indebtedness in respect of
which such Person is wholly or partially
liable whether pursuant to any
repayment, interest carry, performance
Guarantee or otherwise, plus
(b)......to the extent not already included in the foregoing clause
(a)
such Person's Ownership Share of all paid
or accrued interest expense for such
period of Unconsolidated Affiliates of such
Person.
Interest Expense allocable to minority
interest in Subsidiaries of the Borrower
shall be excluded from Interest Expense of
the Parent and its Subsidiaries when
determined on a consolidated basis.
11
<PAGE>
"Interest Period" means, with respect to any LIBOR Advance that is
a
Revolving Advance, each period commencing
on the date such LIBOR Advance is made
or the last day of the next preceding
Interest Period for such Advance and
ending on the numerically corresponding day
in the first, second, third, sixth
or, if available, twelfth calendar month
thereafter, as the Borrower may select
in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the
case may be, except that each such Interest
Period that commences on the last
Business Day of a calendar month (or on any
day for which there is no
numerically corresponding day in the
appropriate subsequent calendar month)
shall end on the last Business Day of the
appropriate subsequent calendar month.
In addition to such periods, with the prior
consent of the Bank, the Interest
Period of a LIBOR Advance may have a
duration of at least 7, but not more than
30, days; and
Notwithstanding the foregoing: (i) if any
Interest Period would otherwise end
after the Termination Date, such Interest
Period shall end on the Termination
Date; (ii) each Interest Period that would
otherwise end on a day which is not a
Business Day shall end on the next Business
Day (or, if such next Business Day
falls in the following calendar month, then
on the prior Business Day); and
(iii) notwithstanding the immediately
preceding clauses (i) and (ii), except
with the Bank's advance written consent, no
Interest Period shall have a
duration of less than one month and, if the
Interest Period for any Advance
would otherwise be a shorter period, such
Advance shall not be available
hereunder for such period.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as
amended.
"Investment" means, with respect to any Person, any acquisition
or
investment (whether or not of a controlling
interest) by such Person, whether by
means of (a) the purchase or other
acquisition of any Equity Interest in another
Person, (b) a loan, advance or extension of
credit to, capital contribution to,
Guaranty of Indebtedness of, or purchase or
other acquisition of any
Indebtedness of, another Person, including
any partnership or joint venture
interest in such other Person, or (c) the
purchase or other acquisition (in one
transaction or a series of transactions) of
assets of another Person that
constitute the business or a division or
operating unit of another Person. Any
commitment or option to make an Investment
in any other Person shall constitute
an Investment. Except as expressly provided
otherwise, for purposes of
determining compliance with any covenant
contained in a Loan Document, the
amount of any Investment shall be the
amount actually invested, without
adjustment for subsequent increases or
decreases in the value of such
Investment.
"Lending Office" means, with reference to the Bank and for each
Type of
Advance, such office of the Bank as the
Bank may notify the Borrower in writing
from time to time.
"LIBOR"
means, for any LIBOR Advance for any Interest Period therefor,
the average rate of interest per annum
(rounded upwards, if necessary, to the
next highest 1/16th of 1%) at which
deposits in immediately available funds in
Dollars are offered to the Bank (at
approximately 9:00 a.m. Atlanta time, two
Business Days prior to the first day of
such Interest Period) by first class
banks in the London Interbank market where
the London Interbank offered rate
operations of the Bank then are customarily
conducted, for delivery on the first
day of such Interest Period, such deposits
being for a period of time equal or
12
<PAGE>
comparable to such Interest Period and in
an amount equal to or comparable to
the principal amount of the LIBOR Advance
to which such Interest Period relates.
Each determination of LIBOR by the Bank
shall, in the absence of demonstrable
error, be conclusive and binding.
"LIBOR Advance" means a Revolving Advance bearing interest at a
rate
based on LIBOR.
"Lien" as applied to the property of any Person means: (a) any
security
interest, encumbrance, mortgage, deed to
secure debt, deed of trust, assignment
of leases and rents, pledge, lien, charge
or lease constituting a capitalized
lease obligation, conditional sale or other
title retention agreement, or other
security title or encumbrance of any kind
in respect of any property of such
Person, or upon the income, rents or
profits therefrom; (b) any arrangement,
express or implied, under which any
property of such Person is transferred,
sequestered or otherwise identified for the
purpose of subjecting the same to
the payment of Indebtedness or performance
of any other obligation in priority
to the payment of the general, unsecured
creditors of such Person; (c) the
filing of any financing statement under the
UCC or its equivalent in any
jurisdiction; and (d) any agreement by such
Person to grant, give or otherwise
convey any of the foregoing.
"Loan" means the outstanding principal of the Loan Balance on
the
Closing Date and thereafter the aggregate
principal amount of all outstanding
Advances.
"Loan Advance" means, individually and collectively, each advance
of
principal made by the Bank to the Borrower
pursuant to this Loan Agreement and
the other Loan Documents subsequent to the
Closing Date.
"Loan Agreement" means this Third Amended and Restated Loan
Agreement
between the Borrower and the Bank, as the
same may hereafter be amended,
supplemented, extended or restated.
" Loan Balance" means the aggregate total $10,000,000.00 in
principal
outstanding on the Existing Revolver as of
the Closing Date, together with any
accrued but unpaid interest outstanding
thereon.
"Loan Document" means, individually and collectively, this Loan
Agreement, the Note, each Collateral
Document, the Operating Company Guaranty,
the Environmental Indemnity Agreement and
each other document or instrument now
or hereafter executed and delivered by a
Loan Party or the Parent in connection
with, pursuant to or relating to this Loan
Agreement, as each may hereafter be
amended, supplemented, extended, spread,
consolidated or restated.
"Loan Party" means the Borrower, the Parent, the Operating
Company
together with any Person, other than the
Parent, who guarantees all or a portion
of the Obligations and/or who pledges any
Collateral to secure all or a portion
of the Obligations.
"Major Leases" means, with respect to any Collateral Property, (i)
any
lease of 50,000 or more leasable square
feet, in the case of any Property which
is a regional mall, or 7,500 or more
leasable square feet, in the case of any
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Collateral Property which is a strip
center, or (ii) collectively, the leases of
space in the Collateral Properties by one
or more tenants which are affiliates
and which operate under separate leases of
space within the Collateral
Properties if the aggregate leasable square
footage leased by such affiliates is
50,000 or more leasable square feet, in the
case of any Collateral Property
which is a regional mall, or 7,500 or more
leasable square feet, in the case of
any Collateral Property which is a strip
center.
"Major Property-Level Agreements" means (a) each operating,
cross-easement, restrictions or similar
agreement encumbering or affecting a
Collateral Property and any adjoining
property material to the use and operation
of such Property; (b) each management
agreement with respect to a Collateral
Property; and (c) any other agreement which
in any way relates to the use,
occupancy, operation, maintenance,
enjoyment or ownership of a Collateral
Property, the breach or loss of which would
have a material adverse effect on
such Property.
"Malls" means property owned by Borrower and/or its Affiliates that
is
in the form of an enclosed regional retail
shopping center that includes two or
more anchor stores.
"Management Company" means CBL & Associates Management, Inc.,
a
Delaware corporation, or any other Person
that succeeds to the obligations of
CBL & Associates Management, Inc. to
manage the Properties, together with its
successors and permitted assigns.
"Material Adverse Effect" means a materially adverse effect on (a)
the
business, assets, liabilities, financial
condition, or results of operations of
the Borrower and its Subsidiaries, or the
Parent and its Subsidiaries, in either
case taken as a whole, (b) the ability of
the Borrower, any other Loan Party or
the Parent to perform its obligations under
any Loan Document to which it is a
party, (c) the validity or enforceability
of any of the Loan Documents, (d) the
rights and remedies of the Bank under any
of the Loan Documents or (e) the
timely payment of the principal of or
interest on the Advances or other amounts
payable in connection therewith.
"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" means, individually and collectively, the Cool
Springs
Crossing Mortgage, the Foothills Mortgage,
and any Assignment of Rents, security
agreement or similar security instrument
now or hereafter executed and delivered
by a Loan Party owning an interest in real
property granting a Lien on such
interest in real property and any related
types or items of property as security
for the payment of the Obligations.
"Net Operating Income" means, for any Property and for the period
of
twelve consecutive calendar months most
recently ending, the sum of the
following (without duplication):
(a)......rents and all other revenues received in the ordinary
course
from such Property (including proceeds of
rent loss insurance but excluding
pre-paid rents and revenues and security
deposits except to the extent applied
in satisfaction of tenants' obligations for
rent); minus
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(b)......all expenses paid related to the ownership, operation
or
maintenance of such Property, including
without limitation, taxes and
assessments, insurance, utilities, payroll
costs, maintenance, repair and
landscaping expenses, marketing expenses;
minus
(c)......an amount equal to (i) the aggregate square footage of
all
owned space of such Property times (ii)
$0.20; minus
(d)......an imputed management fee in the amount of three
percent
(3.0%) of the aggregate base rents and
percentage rents received for such
Property for such period.
"Net Proceeds" means with respect to an Equity Issuance by a
Person,
the aggregate amount of all cash received
by such Person in respect of such
Equity Issuance net of investment banking
fees, legal fees, accountants fees,
underwriting discounts and commissions and
other customary fees and expenses
actually incurred by such Person in
connection with such Equity Issuance.
"Nonrecourse Indebtedness" means, with respect to a Person, an
Extension of Credit or other Indebtedness
in respect of which recourse for
payment (except for customary exceptions
for fraud, misapplication of funds,
environmental indemnities, and other
similar customary exceptions to recourse
liability) is contractually limited to
specific assets of such Person encumbered
by a Lien securing such Extension of Credit
or other Indebtedness.
"Note" means that certain Third Amended and Restated Revolving
credit
Note of Borrower of even date herewith
payable to the order of the Bank in the
original principal amount of
$10,000,000.00, as the same may hereafter be
amended, extended, spread, consolidated or
restated.
"Notice of Borrowing" means a notice substantially in the form
of
Exhibit C to be delivered to the Bank
pursuant to Section 2.1 evidencing the
Borrower's request for a borrowing of
Revolving Advances.
"Notice of Continuation" means a notice substantially in the form
of
Exhibit D to be delivered to the Bank
pursuant to Section 2.8 evidencing the
Borrower's request for the Continuation of
a LIBOR Advance.
"Notice of Conversion" means a notice substantially in the form
of
Exhibit E to be delivered to the Bank
pursuant to Section 2.8 evidencing the
Borrower's request for the Conversion of a
Advance from one Type to another
Type.
"Obligations" means as
of any date, individually and collectively,
without duplication: (a) the aggregate
principal balance of, and all accrued and
unpaid interest on, all Advances then
outstanding; and (b) all other
indebtedness, liabilities, obligations,
covenants and duties of the Borrower or
any of the other Loan Parties owing to the
Bank of every kind, nature and
description, under or in respect of this
Loan Agreement or any of the other Loan
Documents, including, without limitation,
the Fees and indemnification
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obligations, whether direct or indirect,
absolute or contingent, due or not due,
contractual or tortious, liquidated or
unliquidated, and whether or not
evidenced by any promissory note.
"Off-Balance Sheet Liabilities" means liabilities and obligations
of
the Parent, the Borrower, any Subsidiary or
any other Person in respect of
"off-balance sheet arrangements" (as
defined in the SEC Off- Balance Sheet
Rules) which the Parent would be required
to disclose in the "Management's
Discussion and Analysis of Financial
Condition and Results of Operations"
section of the Parent's report on Form 10-Q
or Form 10-K (or their equivalents)
which the Parent would be required to file
with the Securities and Exchange
Commission (or any Governmental Authority
substituted therefor). As used in this
definition, the term "SEC Off-Balance Sheet
Rules" means the Disclosure in
Management's Discussion and Analysis About
Off-Balance Sheet Arrangements,
Securities Act Release No. 33-8182, 68 Fed.
Reg. 5982 (Feb. 5, 2003) (to be
codified at 17 CFR pts. 228, 229 and
249).
"Operating Company" means Cool Springs Crossing Limited
Partnership, a
Tennessee limited partnership.
"Operating Company Guaranty" means the Guaranty executed by an
Operating Company with respect to the
Obligations, as such Guaranty may
hereafter be supplemented, amended and/or
restated.
"Ownership Share" means, with respect to any Subsidiary of a
Person
(other than a Wholly Owned Subsidiary) or
any Unconsolidated Affiliate of a
Person, the greater of (a) such Person's
relative nominal direct and indirect
ownership interest (expressed as a
percentage) in such Subsidiary or
Unconsolidated Affiliate or (b) subject to
compliance with Section 8.4(i), such
Person's relative direct and indirect
economic interest (calculated as a
percentage) in such Subsidiary or
Unconsolidated Affiliate determined in
accordance with the applicable provisions
of the declaration of trust, articles
or certificate of incorporation, articles
of organization, partnership
agreement, joint venture agreement or other
applicable organizational document
of such Subsidiary or Unconsolidated
Affiliate.
"Parent" is CBL & Associates Properties, Inc., a Delaware
corporation,
and shall include the Parent's successors
and permitted assigns.
"Permanent Loan Estimate" means, as of any date of determination
and
with respect to any Collateral Property, an
amount equal to (a) the Net
Operating Income of such Collateral
Property divided by (b) the product of (i)
1.25 and (ii) the greater of (x) the
mortgage constant for a 25-year loan
bearing interest at a per annum rate equal
to the average rate published in the
United States Federal Reserve Statistical
Release (H.15) for 10-year Treasury
Constant Maturities during the previous
four fiscal quarters plus 1.50% (150
basis points), or (y) 8%.
"Permitted Deficiency" has the meaning given that term in Section
10.5.
"Permitted Encumbrances" shall mean and include:
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(a)......liens for taxes, assessments or similar governmental
charges
not in default or being contested in good
faith by appropriate proceedings;
(b)......inchoate workmen's, vendor's, mechanic's, and
materialmen's
liens and other liens imposed by law and
incurred in the ordinary course of
business, and easements and encumbrances
which are not substantial in character
or amount and do not materially detract
from the value or interfere with the
intended use of the properties subject
thereto and affected thereby;
(c)......liens with respect to pledges or deposits under social
security laws, workmen's compensation laws,
unemployment insurance or similar
legislation and with respect to pledges or
deposits to secure bids, tenders,
contracts (other than contracts for the
payment of money), leases or statutory
obligations;
(d)......any liens and security interests specifically listed in
any
exhibit describing permitted exceptions and
attached to any Mortgage;
(e)......such other liens and encumbrances to which the Bank
shall
consent in writing; and
(f)......leases, licenses, rental agreements or other agreements
for
use and occupancy of the subject property
entered into in the ordinary course of
business.
"Permitted Liens" means, with respect to any asset or property of
a
Person,
(a)......Liens securing taxes, assessments and other charges or
levies
imposed by any Governmental Authority
(excluding any Lien imposed pursuant to
any of the provisions of ERISA or pursuant
to any Environmental Laws) or the
claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor,
materials, supplies or rentals incurred in
the ordinary course of business,
which are not at the time required to be
paid or discharged under Section 7.5;
(b)......Liens consisting of deposits or pledges made, in the
ordinary
course of business, in connection with, or
to secure payment of, obligations
under workmen's compensation, unemployment
insurance or similar Applicable Laws;
(c)......Liens consisting of encumbrances in the nature of
zoning
restrictions, easements, and rights or
restrictions of record on the use of real
property, which do not materially detract
from the value of such property or
impair the use thereof in the business of
such Person;
(d)......the rights of tenants under leases or subleases not
interfering with the ordinary conduct of
business of such Person;
(e)......Liens in favor of the Bank; and
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(f)......in the case of any Collateral encumbered by a
Collateral
Document, other Liens expressly permitted
by such Collateral Document.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or
unincorporated organization, or a
government or any agency or political
subdivision thereof.
"Principal Office" means the Bank's office located at 736
Market
Street, Chattanooga, Tennessee 37402, or
such other office as the Bank may from
time to time designate by written notice to
the Borrower.
"Principals" means (a) Charles B. Lebovitz, John N. Foy, Ben S.
Landress, Stephen Lebovitz, Michael
Lebovitz and/or Ron Fullam, Jr., (b) any of
such individual's immediate family members
consisting of his spouse and his
lineal descendants (whether natural or
adopted), (c) a trust, partnership or
other similar entity of which any of the
Persons identified in either of the
immediately preceding clauses (a) or (b)
are the sole beneficiaries of all of
the interest therein, and (d) any
Subsidiary of any of the Persons identified in
any of the immediately preceding clauses
(a) through (c), so long as any of the
individuals identified in the immediately
preceding clause (a) owns or controls
at least 10% of the securities or other
ownership interests having by the terms
thereof ordinary voting power to elect a
majority of the board of directors or
other persons performing similar functions
of such corporation, partnership or
other entity (without regard to the
occurrence of any contingency).
"Property" means a parcel (or group of related parcels) of real
property developed (or to be developed) for
use as regional mall or retail strip
shopping center, including, but not limited
to, each Collateral Property.
"Property Management Agreements" means, collectively, all
agreements
entered into by the Borrower or any other
Loan Party pursuant to which the
Borrower or such other Loan Party engages a
Person to advise it with respect to
the management of a given Collateral
Property.
"Property Management Contract Assignment" means a Property
Management
Contract Assignment executed by the
Borrower or any other Loan Party in favor of
and in form and substance satisfactory to
the Bank. Such document may, at the
Bank's election, constitute a subordination
of Property Management Agreement,
rather than an assignment thereof
"Protective Advance" means all sums expended as determined by the
Bank
to be necessary or appropriate after the
Borrower fails to do so when required:
(a) to protect the validity,
enforceability, perfection or priority of the Liens
in any of the Collateral and the
instruments evidencing the Obligations; or (b)
to protect any of the Collateral from being
materially damaged, impaired,
mismanaged or taken, including, without
limitation, any amounts expended in
connection therewith in accordance with
Section 10.8.
"Recitals" means the Recitals of Fact set forth above beginning on
the
first page of this Loan Agreement.
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"Recourse Indebtedness" means any Indebtedness other than
Nonrecourse
Indebtedness.
"Regulatory Change" means, with respect to the Bank, any change
effective after the Agreement Date in
Applicable Law (including without
limitation, Regulation D of the Board of
Governors of the Federal Reserve
System) or the adoption or making after
such date of any interpretation,
directive or request applying to a class of
banks, including the Bank, of or
under any Applicable Law (whether or not
having the force of law and whether or
not failure to comply therewith would be
unlawful) by any Governmental Authority
or monetary authority charged with the
interpretation or administration thereof
or compliance by the Bank with any request
or directive regarding capital
adequacy.
"REIT" means a Person qualifying for treatment as a "real
estate
investment trust" under the Internal
Revenue Cod
