Exhibit 10.18
REVOLVING CREDIT LOAN AGREEMENT
THIS REVOLVING CREDIT LOAN AGREEMENT ("Loan Agreement"), dated
this
24th day of September, 2003, is by and
between CBL & ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited
partnership, whose address is CBL Center, 2030
Hamilton Place Boulevard, Chattanooga,
Tennessee 37421-6000 (the "Borrower"),
and SOUTHTRUST BANK, an Alabama banking
corporation with offices at 420 North
Twentieth Street, Commercial Real Estate
Group, 8th Floor, Birmingham, Alabama
35203 (the "Bank").
R E C I T A L S
Borrower has requested that the Bank commit to make loans and
advances
to it on a revolving credit basis in an
amount not to exceed at any one time
outstanding the principal sum of TWENTY
MILLION DOLLARS ($20,000,000.00) (or, if
lesser, the Borrowing Base described
herein) for the purpose of providing
working capital for pre-development
expenses, development costs, equity
investments, repayment of existing
indebtedness, certain distributions to
limited partners (as allowed herein), and
for general corporate purposes. The
Bank has agreed to make establish such
credit facility on the terms and
conditions herein set forth.
NOW, THEREFORE, incorporating the Recitals set forth above and
in
consideration of the mutual agreements
herein contained, the parties agree as
follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Certain Defined Terms. For the purposes
of this Loan Agreement, the
following terms shall have the following
meanings (such meanings to be
applicable equally to both the singular and
plural forms of such terms) unless
the context otherwise requires:
"Acquired Projects" means any Mall and/or Non-Mall Project
(whether
alone or in a portfolio of such projects)
that are acquired by the Borrower
and/or its Affiliates after the date
hereof. A Mall or Non-Mall Project shall
remain characterized as an "Acquired
Project" for the period of fifteen months
beginning on the first day of the month
next following the month in which the
closing of the acquisition of the Acquired
Project occurred. Following said
fifteen month period, the Acquired Project
in question shall be deemed either a
Mall or Non-Mall Project as the case may be
and shall no longer be considered an
Acquired Project.
"Adjusted Loan Amount" means the lesser of (a) an eighty-five
percent
(85%) loan-to-value ratio of the Mortgaged
Properties, such loan-to-value ratio
to be calculated based upon the appraised
values given to the Mortgaged
Properties in current appraisals complying
with the Bank's standard appraisal
requirements, or (b) the combined Net
Operating Income from the Mortgaged
Properties as of each January 1, April 1,
July 1 and October 1, as the case may
be, based upon the then immediately
preceding twelve (12) month period, divided
by 1.15 with the resulting figure being
further divided by the applicable
mortgage constant of 8.81 (as such mortgage
constant may be adjusted from time
to time in Bank's reasonable judgment based
upon Bank's then current permanent
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loan underwriting criteria for comparable
projects), or (c) Twenty Million
Dollars ($20,000,000).
"Affiliate" means as to any Person, any other Person which,
directly or
indirectly, owns or controls, on an
aggregate basis including all beneficial
ownership and ownership or control as a
trustee, guardian or other fiduciary, at
least ten percent (10%) of the outstanding
shares of Capital Stock or other
ownership interest having ordinary voting
power to elect a majority of the board
of directors or other governing body
(irrespective of whether, at the time,
stock of any other class or classes of such
corporation shall have contingency)
of such Person or at least ten percent
(10%) of the partnership or other
ownership interest of such Person; or which
controls, is controlled by or is
under common control with such Person. For
the purposes of this definition,
"control" means the possession, directly or
indirectly, of the power to direct
or cause the direction of management and
policies, whether through the ownership
of voting securities, by contract or
otherwise. Notwithstanding the foregoing, a
pension fund, university or other endowment
funds, mutual fund investment
company or similar fund having a passive
investment intent owning such a ten
percent (10%) or greater interest in a
Person shall not be deemed an Affiliate
of such Person unless such pension, mutual,
endowment or similar fund either (i)
owns fifty percent (50%) or more of the
Capital Stock or other ownership
interest in such Person, or (ii) has the
right or power to select one or more
members of such Person's board of directors
or other governing body.
"Applicable Law" means, in respect of any Person, all provisions
of
statutes, rules, regulations and orders of
any governmental authority applicable
to such Person, and all orders and decrees
of all courts and arbitrators in
proceedings or actions in which the person
in question is a party.
"Borrowing Base" is the limitation on the aggregate Revolving
Credit
Loan indebtedness which may be outstanding
at any time during the term of this
Agreement. The Borrowing Base will be
calculated each January 1, April 1, July 1
and October 1 during the term hereof. The
Borrowing Base will be an amount not
to exceed the Borrower's Adjusted Loan
Amount.
"Business Day" means a banking business day of the Bank.
"Capital Stock" means, as to any Person, any and all shares,
interests,
warrants, participations or other
equivalents (however designated) of corporate
stock of such Person.
"Capitalized Value" means the sum of the following:
(i) an amount, calculated as of any date, equal to the
quotient of (A) the sum of (I) Borrower's Funds from Operations
during
the most recent quarter end (not including Funds from Operations
from
Malls), annualized, plus (II) the Interest Expense (not
including
interest expense from Malls) used in calculating Borrower's Funds
from
Operations pursuant to clause (I) above, annualized plus (III)
the
annualized base rental income from tenants which have executed
leases
in Non-Mall Project and in Non-Mall Projects scheduled for
completion
during the twelve month period subsequent to such date, and (B)
9%.
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(ii) an amount, calculated as of any date, equal to the
quotient of (A) the sum of (I) Borrower's Funds from Operations
during
the most recent quarter end (from Malls only), annualized, plus
(II)
the Interest Expense (from Malls only) used in calculating
Borrower's
Funds from Operations pursuant to clause (I) above, annualized
plus
(III) the annualized base rental income from tenants which have
executed leases in Malls and in Malls schedule for completion
during
the twelve month period subsequent to such date, and (B) 8%.
(iii) an amount, calculated as of the date of the closing of
any acquisition of an Acquired Project equal to the sum of (A)
the
price paid by Borrower and/or its Affiliates for the Acquired
Project(s), which price paid shall include any and all cash paid,
the
amount of any equity interests in CBL Properties, Inc. or share
equivalents thereof
(the amount of equity interests and/or share
equivalents shall be based upon the closing price of the stock of
CBL
Properties, Inc. on the date of the closing of the acquisition of
the
Acquired Project) and (B) the amount of any and all recording
costs,
closing costs and other expenses paid by Borrower and/or its
Affiliates
to finalize the acquisition of the Acquired Project. Funds from
Operations and Interest Expense of an Acquired Project(s) shall
be
excluded from the calculations set forth in (i) and (ii) above for
such
time as an Acquired Project remains characterized as such.
"CBL Holdings"
means CBL Holdings I, Inc., a Delaware corporation
and the sole general partner of Borrower.
"CBL Management, Inc." means CBL & Associates Management, Inc.,
a
Delaware corporation.
"CBL Mortgages" means, collectively, the mortgages and/or deeds
of
trust with security agreements and
assignments of rents and leases and related
amendments executed contemporaneously
herewith by Gunbarrel Commons, LLC, a
Tennessee limited liability company with
respect to the Gunbarrel Commons
Shopping Center in Hamilton County,
Tennessee, and by CBL/Sunrise Commons, L.P.,
a Texas limited partnership with respect to
the Sunrise Commons Shopping Center
in Cameron County, Texas (such mortgages
covering the properties described in
Exhibit A attached hereto and made a part
hereof) together with such other
affiliates of the Borrower who may
hereafter execute and deliver to Bank a CBL
Mortgage as referred to in Section 4.1(e)
hereof.
"CBL Properties, Inc." means CBL & Associates Properties, Inc.,
a
Delaware corporation and a qualified public
REIT and the sole owner of CBL
Holdings, and who has guaranteed payment
and performance of the Borrowers
obligations hereunder pursuant to its
Guaranty Agreement of even date herewith
in favor of the Lender.
"Closing Date" means the date set out in the first paragraph of
this
Loan Agreement.
"Combined" means, as to any calculation hereunder, that such
calculation shall be made on a combined
basis for Borrower, CBL Properties, Inc.
and CBL Management, Inc., with each such
calculation being made, (a) in respect
of Borrower, on a consolidated basis for
Borrower and its Subsidiaries, (b) in
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respect of CBL Properties, Inc., on a
consolidated basis for CBL Properties,
Inc. and its Subsidiaries, and (c) in
respect of CBL Management, Inc., on a
consolidated basis for CBL Management, Inc.
and its Subsidiaries.
"Contingent Obligations" means, for any Person, any material
commitment, undertaking, Guarantee or
material obligation constituting a
continuing liability under GAAP, but only
to the extent the same are required to
be reflected on such Persons' audited
financial statements.
"Debt Coverage Ratio" means, as of any date the same is calculated,
the
ratio of (a) EBITDA for the fiscal quarter
ending on or most recently ended
prior to such date to (b) Debt Service
during such fiscal quarter, in each case
calculated on a Combined basis in
accordance with GAAP.
"Debt Service" means, with respect to Borrower, CBL Properties,
Inc.,
and their respective Subsidiaries for any
period, the sum of (a) Interest
Expense of Borrower, CBL Properties, Inc.
and their respective Subsidiaries for
such period, plus (b) regularly scheduled
principal payments on Indebtedness of
Borrower, CBL Properties, Inc. and their
respective Subsidiaries during such
period other than any regularly scheduled
principal payment payable on any
Indebtedness which prepays such
Indebtedness in full, to the extent the amount
of such final scheduled principal payment
is greater than the scheduled
principal payment immediately preceding
such final scheduled principal payment,
determined in each case on a Combined basis
in accordance with GAAP. For
purposes of this definition, a voluntary
prepayment of Indebtedness shall not
constitute a regularly scheduled principal
payment even if, under the terms of
the agreement governing such Indebtedness,
the notice of prepayment has the
effect of causing the amount of the
prepayment to become due and payable on the
date set for such notice of such
prepayment.
"EBITDA" means, for any period, the sum of (i) Net Income of
Borrower,
CBL Properties, Inc. and their respective
Subsidiaries for such period
(excluding equity in net earnings (or loss)
of their Unconsolidated Affiliates),
plus (ii) depreciation and amortization
expense and other non-cash charges of
Borrower, CBL Properties, Inc. and their
respective Subsidiaries for such
period, plus (iii) interest expense of
Borrower, CBL Properties, Inc. and their
respective Subsidiaries for such period,
plus (iv) income tax expense in respect
of such period, plus (v) cash dividends and
distributions actually received by
Borrower, CBL Properties, Inc. and their
respective Subsidiaries during such
period from Unconsolidated Affiliates, plus
(vi) extraordinary losses (and any
unusual losses arising in or outside the
ordinary course of business of
Borrower, CBL Properties, Inc. and their
respective Subsidiaries not included in
extraordinary losses determined in
accordance with GAAP that have been reflected
in the determination of Net Income) for
such period, minus (vii) extraordinary
gains of Borrower, CBL Properties, Inc. and
their respective Subsidiaries (and
any unusual gains arising in or outside the
ordinary course of business of
Borrower, CBL Properties, Inc. or such
respective Subsidiaries not included in
extraordinary gains determined in
accordance with GAAP that have been reflected
in the determination of Net Income) for
such period, determined in each case on
a Combined basis in accordance with
GAAP.
"Environmental Laws" means all applicable local, state or federal
laws,
rules or regulations pertaining to
environmental regulation, contamination or
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cleanup, including, without limitation, the
Comprehensive Environmental
Response, Compensation and Liability Act of
1980, the Resource Conservation and
Recovery Act of 1976 or any state lien or
superlien or environmental cleanup
statutes.
"Event of Default" has the meaning assigned to that phrase in
Section
8.
"Funds from Operations" means, as to any period, an amount equal to
(a)
income (or loss) from operations of
Borrower, CBL Properties, Inc. and their
respective Subsidiaries for such period,
plus (b) depreciation and amortization,
plus (or minus) (c) to the extent not
included in clause (a) above, gain (loss)
on the sales of outparcels made in the
ordinary course of business, and after
adjustments for Unconsolidated Affiliates,
determined in each case on a Combined
basis in accordance with GAAP. Adjustments
for Unconsolidated Affiliates will be
calculated to reflect funds from operations
on the same basis.
"GAAP" means generally accepted accounting principles applied on
a
basis consistent with those which are to be
used in making the calculations for
purposes of determining compliance with
this Agreement. All calculations made
for the purposes of determining compliance
with this Agreement shall (except as
may be otherwise expressly provided herein)
be made by application of generally
accepted accounting principles applied on a
basis consistent with those used in
preparation of the annual and quarterly
financial statements of CBL Properties,
Inc. furnished to the Securities and
Exchange Commission.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or
indirectly guaranteeing any Indebtedness
or other obligation of any other Person
and, without limiting the generality of
the foregoing, any obligation, direct or
indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or
advance or supply funds for the purchase
or payment of) such Indebtedness or other
obligation (whether arising by virtue
of partnership arrangements, by agreement
to keep-well, to purchase assets,
goods, securities or services, to
take-or-pay, or to maintain financial
statement conditions or otherwise), or (ii)
entered into for the purpose of
assuring in any other manner the obligee of
such Indebtedness or other
obligation of the payment thereof or to
protect such obligee against losses in
respect thereof (in whole or in part),
provided that the term "Guarantee" shall
not include endorsements for collection or
deposit in the ordinary course of
business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Hazardous Substances" means and includes all hazardous and
toxic
substances, wastes or materials, any
pollutants or contaminants (including,
without limitation, asbestos and raw
materials which include hazardous
constituents), or any other similar
substances or materials which are included
under or regulated by any applicable
Environmental Laws.
"Indebtedness" means, as applied to any Person at any time,
without
duplication (a) all indebtedness,
obligations or other liabilities of such
Person (i) for borrowed money or evidenced
by debt securities, debentures,
acceptances, notes or other similar
instruments, and any accrued interest, fees
and charges relating thereto; (ii) with
respect to letters of credit issued for
such Person's account; (iii) under
agreements for the prospective purchase or
repurchase assets other than obligations
arising under unexercised option
agreements; (iv) to make future investments
in any Person; (v) to pay the
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deferred purchase price of property or
services previously purchased or
rendered, except unsecured trade accounts
payable and accrued expenses required
to be capitalized in accordance with GAAP;
(b) all indebtedness, obligations or
other liabilities of such Person or others
secured by a Lien on any asset of
such Person, whether or not such Person is
otherwise obligated on such
indebtedness, obligations or liabilities
are assumed by such Person, all as of
such time; (c) all indebtedness,
obligations or other liabilities of such Person
in respect of any foreign exchange contract
or any interest rate swap, cap or
collar agreement or similar arrangement,
net of liabilities owed to such Person
by the counterparties thereon; (d) all
shares of Capital Stock or equivalent
ownership interest subject (upon the
occurrence of any contingency or otherwise)
to mandatory redemption prior to the date
the Loan is scheduled to be repaid in
full; (e) obligations of others to the
extent Guaranteed by such Person or to
the extent such Person is otherwise liable
on a recourse basis; and (f) such
Person's pro rata share of non-recourse
Indebtedness of a partnership in which
such Person is a partner (it being
understood that the remaining portion of such
non-recourse partnership Indebtedness shall
not constitute Indebtedness of such
Person).
"Interest Coverage Ratio" means, as of any date the same is
calculated,
the ratio of (a) EBITDA for the fiscal
quarter ending on or most recently ended
prior to such date to (b) Interest Expense
for such fiscal quarter, determined
in each case on a Combined basis in
accordance with GAAP.
"Interest Expense" means, for any Person for any period, total
interest
expense on Indebtedness of such Person,
whether paid or accrued, but without
duplication (including the interest
component of capital leases), including,
without limitation, (a) all commissions,
discounts and other fees and charges
owed with respect to letters of credit, and
(b) one hundred percent (100%) of
any interest expense, whether paid or
accrued, or any other Person for which
such Person is wholly or partially liable
(whether by Guarantee, pursuant to
Applicable Law or otherwise) but excluding
(i) interest on Reserved Construction
Loans, and (ii) swap or other interest
hedging breakage costs, all as determined
in conformity with GAAP.
"Investment" in any Person shall mean any investment, whether by
means
of share purchase, loan, advance, extension
of credit, capital contribution or
otherwise, in or to such Person, the
Guarantee of any Indebtedness of such
Person, or the subordination of any claim
against such Person to other
Indebtedness of such Person.
"LIBOR Rate" means one hundred (100) basis points (1.00%) in excess
of
the London Interbank Offered Rate (LIBOR).
As used herein, the term "LIBOR"
means, as of any Rate Adjustment Date as
provided in Section 3(a) hereof, a per
annum rate of interest (expressed as a
percentage and rounded upwards, if
necessary, to the nearest 0.0625%) equal to
the "London Interbank Offered Rate
(LIBOR)" at which U.S. Dollar deposits are
offered to Lender in immediately
available funds in the London Interbank
Market as effective for contracts
entered into on the Monthly Rate Adjustment
Date, as determined by Lender in
accordance with its prevailing procedures
in effect from time to time. At
Borrower's option, interest rate time
periods shall be either a one (1) month,
two (2) months, three (3) months, or six
(6) months LIBOR interest period.
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"Lien" means any interest in Property securing an obligation owed
to,
or a claim by, a Person other than the
owner of the Property, whether such
interest is based on the common law,
statute or contract, and including but not
limited to the security interest or lien
arising from a deed of trust, mortgage,
encumbrance, pledge, conditional sale or
trust receipt or a lease, consignment
or bailment for security purposes, and
including but not limited to
reservations, exceptions, encroachments,
easements, rights-of-way, covenants,
conditions, restrictions, leases, and other
title exceptions and encumbrances
affecting the Mortgaged Properties.
"Loan" means the Revolving Credit Loan from the Bank to the
Borrower.
"Loan Agreement" means this Loan Agreement between the Borrower and
the
Bank, and any modifications, amendments, or
replacements thereof, in whole or in
part.
"Malls" means property owned by Borrower and/or its Affiliates that
is
in the form of an enclosed regional retail
shopping mall that includes two or
more anchor stores.
"Maturity Date" means the date that the Loan shall be due and
payable,
and shall be March 15, 2007.
"Maximum Rate" means the maximum variable contract rate of
interest
which the Bank may lawfully charge under
applicable statutes and laws from time
to time in effect.
"Mortgages" or "Mortgage" means a mortgage, deed of trust, deed
to
secure debt or similar security instrument
made or to be made by a Person owning
a Mortgaged Property or an interest in a
Mortgaged Property, granting a Lien on
such real estate or interest in real estate
as security for the payment of
indebtedness.
"Mortgaged Properties" means any property encumbered by a CBL
Mortgage.
As of the date hereof, the Mortgaged
Properties are the Gunbarrel Pointe
Shopping Center in Hamilton County,
Tennessee and the Sunrise Commons Shopping
Center in Cameron County, Texas, together
with any other properties which are
hereafter subject to a CBL Mortgage.
"Net Income" means, with respect to Borrower, CBL Properties, Inc.,
and
their respective Subsidiaries for any
period, net earnings (or loss) after
deducting therefrom all operating expenses,
income taxes and reserves and net
earnings (or loss) attributable to minority
interests in Subsidiaries for the
period in question, determined in each case
on a Combined basis in accordance
with GAAP. Without limiting the generality
of the foregoing, earnings (or
losses) from the sale of outparcels in the
ordinary course of business shall be
included in determining Net Income.
"Net Operating Income" means, for any Property for the period
in
question (a) any cash rentals, expense or
cost reimbursements, or other income
or gain earned by Borrower with respect to
such Property, less (b) all cash
expenses (excluding items capitalized under
GAAP) incurred by Borrower during
such period in connection with the
operation or leasing of such Property.
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"Net Worth" means, with respect to Borrower, CBL Properties, Inc.
and
their Subsidiaries as of any date, the sum
of (a) the total shareholders' equity
of CBL Properties, Inc., plus (b) the value
of all minority interests in
Borrower, plus (c) depreciation and
amortization since December 31, 1993, minus
(d) all intangible assets, determined on a
Combined basis in accordance with
GAAP.
"Non-Mall Project" means property owned by Borrower and/or its
Affiliates that is in the form of a retail
shopping center that is not a Mall.
"Note" means the Revolving Credit Note executed by the Borrower to
the
Bank, dated of even date herewith as such
note may be modified, renewed or
extended from time to time; and any other
note or notes executed at any time to
evidence the indebtedness under this Loan
Agreement, in whole or in part, and
any renewals, modifications and extensions
thereof, in whole or in part.
"Permitted Encumbrances" means and includes:
(a) liens for
taxes, assessments or similar governmental charges not in
default or being contested in good faith by appropriate
proceedings;
(b) workmen's,
vendors', mechanics' and materialmen's liens and other liens
imposed by law incurred in the ordinary course of business, and
easements and encumbrances which are not substantial in character
or
amount and do not materially detract from the value or interfere
with
the intended use of the properties subject thereto and affected
thereby;
(c) liens in
respect of pledges or deposits under social security laws,
worker's compensation laws, unemployment insurance or similar
legislation and in respect of pledges or deposits to secure
bids,
tenders, contracts (other than contracts for the payment of
money),
leases or statutory obligations;
(d) any liens
and security interests specifically listed and described in
Exhibit B hereto attached or in any exhibit describing
permitted
exceptions and attached to any CBL Mortgage;
(e) such other
liens and encumbrances to which Bank shall consent in
writing; and
(f) leases,
licenses, rental agreements, reciprocal easement agreements, or
other agreements for use and occupancy of the subject property.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association,
joint venture or a government or
agency or political subdivision
thereof.
"Project" or "Projects," which definition is used and only
applies
within Section 7.8 hereof, means the real
estate projects owned by Borrower, a
Subsidiary of Borrower, or any other Person
and "Project" shall mean any one of
the Projects.
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"Property" means any interest in any kind of property or asset,
whether
real, personal or mixed, tangible or
intangible.
"Revolving Credit Advances" means advances of principal on the
Revolving Credit Loan to be made by the
Bank under the terms of this Loan
Agreement to the Borrower during the
Revolving Credit Period.
"Revolving Credit Loan" means the Borrower's revolving credit
indebtedness to the Bank pursuant to
Section 2 of this Loan Agreement.
"Revolving Credit Note" means the Note as described in Section
2.3
hereof.
"Revolving Credit Period" means the period of time during which
the
Bank will make Revolving Credit Advances of
the Loan to the Borrower. The
Revolving Credit shall commence on the
Closing Date and shall expire on the
earlier of (a) January 15, 2005 (subject,
however, to being extended as is set
forth in Section 2.4 hereof) or in the
event that the Bank and Borrower shall
hereafter mutually agree in writing that
the Revolving Credit Loan and the
Bank's commitment hereunder shall be
extended to another date, such other date
mutually agreed upon between Bank and
Borrower to which the Bank's commitment
shall have been extended, or (b) the date
as of which Borrower shall have
terminated the Bank's commitment under the
provisions of Section 2.6 hereof.
"Subsidiary" means, as to any Person, any other Person, more than
fifty
percent (50%) of the outstanding shares of
Capital Stock, partnership interest
or other ownership interest, having
ordinary voting power to elect a majority of
the board of directors or similar governing
body of such other Person
(irrespective of whether or not at the time
stock or other ownership interests
of any other class or classes of such other
Person shall have or might have
voting power by reason of the happening of
any contingency) is at the time
directly or indirectly owned or controlled
by such Person or by one or more
"Subsidiaries" of such Person, and whose
financial reports are prepared on a
consolidated basis with such Person.
"Wholly Owned Subsidiary" shall mean any
such Person of which all of the shares of
Capital Stock or ownership interests
(other than, in the case of a corporation,
directors' qualifying shares) are so
owned or controlled. For purposes of this
Agreement, CBL Management, Inc. shall
be deemed to be a Subsidiary of
Borrower.
"Total Obligations" means, as of any date, the sum (without
duplication) of (a) the Indebtedness of
Borrower, CBL Properties, Inc. and their
respective Subsidiaries (other than
Indebtedness described in clauses (a)(iii)
and (a)(iv) of the definition thereof);
plus (b) the aggregate amount of
Contingent Obligations of Borrower, CBL
Properties, Inc. and their respective
Subsidiaries in respect of Indebtedness
(other than Indebtedness described in
clauses (a)(iii) and (a)(iv) of the
definition thereof); plus (c) Borrower's,
CBL Properties, Inc's or their respective
Subsidiaries' proportionate share of
Indebtedness (other than Indebtedness
described in clauses (a)(iii) and (a)(iv)
of the definition thereof) of any
Unconsolidated Affiliate, whether or not
Borrower, CBL Properties, Inc. or such
Subsidiary is obligated on such
Indebtedness; plus (d) all other amounts
which would be classified as a
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liability on the consolidated balance
sheets of Borrower or CBL Properties,
Inc., determined in each case on a Combined
basis in accordance with GAAP.
"Unconsolidated Affiliate" means, in respect of any Person, any
other
Person in whom such Person holds an
Investment, which Investment is accounted
for in the financial statements of such
Person on an equity basis of accounting.
1.2 Accounting Terms. All accounting terms
not specifically defined herein shall
be construed in accordance with generally
accepted accounting principles
consistent with those applied in the
preparation of the financial statements
required to be delivered from time to time
pursuant to Section 6.5 hereof.
Article II
COMMITMENT; FUNDING AND TERMS OF REVOLVING CREDIT LOAN
2.1 The Commitment. Subject to the terms
and conditions herein set out, Bank
agrees and commits to make Revolving Credit
Advances to the Borrower from time
to time during the Revolving Credit Period
in an aggregate principal amount not
to exceed, at any one time outstanding, the
lesser of (a) Twenty Million Dollars
($20,000,000) or (b) the Borrowing Base.
Within the aforesaid limits, the
Borrower may borrow, make payments of, and
re-borrow under the Revolving Credit
Loan.
2.2 Funding the Loan. Each Revolving Credit
Advance hereunder shall be made upon
the written request of the Borrower to the
Bank, specifying the date and amount
and intended use thereof. All Revolving
Credit Advance hereunder shall be made
by depositing the same to the checking
account of Borrower at the Bank or other
methods acceptable to Borrower and
Bank.
2.3 The Note and Interest. The Revolving
Credit Loan shall be evidenced by the
Note, a copy of which is attached hereto as
Exhibit C. The unpaid principal
balances of the Revolving Credit Loan shall
bear interest from the Closing Date
on disbursed and unpaid principal balances
at the LIBOR Rate. The first
selection of the one (1) month, two (2)
months, three (3) months, or six (6)
months LIBOR interest period shall be made
by the Borrower on or prior to the
date of the Note and each selection
thereafter shall be made at least
twenty-four (24) hours prior to the end of
the then applicable interest rate
period. The Borrower may not select a rate
period which extends beyond the
Maturity Date. Interest shall be payable
monthly on the fifteenth (15th) day of
each month after the Closing Date,
commencing October 15, 2003, with the final
installment of interest, together with the
entire outstanding principal balance
of the Revolving Credit Loan, being due and
payable on the Maturity Date.
2.4 Loan
Review; Extensions of Revolving Credit Period; Continuing
Security.
(a) The
Revolving Credit Period may be extended for additional
periods of one (1) year (but in no event later than the Maturity
Date),
in accordance with the
provisions of this
subsection (a) following.
On January 15, 2005 and January 15, 2006, Bank shall review the
performance of the Loan. If the Bank deems performance of the
Loan
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acceptable, it will renew the Revolving Credit Period for one (1)
year
(to the following
January 15), and during such renewal period, Bank
will make Revolving Credit Advances to the Borrower in accordance
with
the terms hereof.
However, if Bank, in its sole judgment, deems
performance of the Loan not acceptable, Bank shall not be obligated
to
renew the Revolving Credit Period of the Loan, and, in such case,
the
then outstanding principal balance of the Loan shall convert to
a
"term" note, no further Revolving Credit Advances will be made
hereunder, and the
Borrower shall pay to Bank monthly installments of
accrued and unpaid interest on the outstanding principal
balance
commencing January 15, 2005, and on the Maturity Date, Borrower
shall
pay to the Bank the outstanding principal balance, together with
all
accrued and unpaid interest thereon. Assessment of performance and
the
decision whether to renew the Revolving Credit Period shall be
solely
within Bank's discretion.
(b) The Bank's
election not to make further Revolving Credit Advances shall
not affect the security interest granted to Bank pursuant to the
CBL
Mortgages, nor the duties, covenants, and obligations of the
Borrower
therein and in this Agreement until all indebtedness, liabilities
and
obligations secured by the CBL Mortgages are satisfied in full; and
all
of such duties, covenants and obligations shall remain in full
force
and effect until the Revolving Credit Loan and all obligations
under
this Loan Agreement have been fully paid and satisfied in all
respects.
2.5
[INTENTIONALLY DELETED.]
2.6 Prepayments or Termination of the
Revolving Credit Loan. The Borrower may,
at its option, from time to time, subject
to the terms and conditions hereof,
without penalty, borrow, repay and reborrow
amounts under the Revolving Credit
Loan. By notice to the Bank in writing,
Borrower shall be entitled to terminate
the Bank's commitment to make further
Revolving Credit Advances, in which case
the Loan, unless paid in full by the
Borrower, shall convert to a term note as
set forth in Section 2.4 above and shall be
payable in accordance therewith.
Provided that the Revolving Credit Loan and
all interest and all other
obligations of Borrower to Bank arising
hereunder shall have been paid in full,
Bank shall thereupon at Borrower's request
release its security interest in the
Mortgaged Properties.
2.7 Substitution of Collateral. Upon the
Bank's prior written approval, the
Borrower may substitute collateral
originally provided for the Revolving Credit
Loan for collateral of equal value but such
substituted collateral must be
acceptable to the Bank and the acceptance
thereof is solely within the
discretion of the Bank.
Article III
REQUIRED PAYMENTS, PLACE OF PAYMENT, ETC.
3.1 Required Repayments. In the event that
the outstanding principal balance of
the Revolving Credit Loan shall at any time
exceed the Borrowing Base, upon
discovery of the existence of such excess
borrowings, the Borrower shall, within
one hundred twenty (120) days from the date
of such discovery, make a principal
payment which will reduce the outstanding
principal balance of the Revolving
Credit Loan to an amount which does not
exceed the Borrowing Base and/or at
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Borrower's option provide the Bank with
additional collateral for the Revolving
Credit Loan of a value and type reasonably
satisfactory to the Bank which
additional collateral shall be at a minimum
sufficient to secure the then
outstanding balance of the Loan (after
credit for any principal reduction
payment received from Borrower, if any),
and if Borrower intends to request
additional Revolving Credit Advances under
the Loan, the additional collateral
shall include collateral, deemed sufficient
in the Bank's discretion, to secure
the Twenty Million Dollars ($20,000,000.00)
credit line limitation, thereafter
permitting Borrower to obtain additional
Revolving Credit advances in the manner
and to the extent provided under the terms
of this Loan Agreement.
In addition and during such one hundred twenty (120) day period
or
until the principal payment or satisfactory
collateral is received, whichever is
less, the Borrower will not make any
additional requests for Revolving Credit
Advance under the Revolving Credit Loan.
Once calculated, the Borrowing Base
shall remain effective until the next
Borrowing Base calculation date as
provided in Section 1 of this
Agreement.
3.2 Place of Payments. All payments of
principal and interest on the Revolving
Credit Loan and all payments of fees
required hereunder shall be made to the
Bank, at its address listed in Section 9.2
of this Agreement in immediately
available funds.
3.3 Payment on Non-Business Days. Whenever
any payment of principal, interest or
fees to be made on the indebtedness
evidenced by the Note shall fall due on a
Saturday, Sunday or public holiday under
the laws of the State of Alabama, such
payment shall be made on the next
succeeding Business Day.
Article IV
CONDITIONS OF LENDING
4.1 Conditions Precedent to Closing and
Funding Initial Revolving Credit
Advance. The obligation of the Bank to fund
the initial Revolving Credit Advance
hereunder is subject to the condition
precedent that the Bank shall have
received, on or before the Closing Date,
all of the following in form and
substance satisfactory to the Bank:
(a) This Loan
Agreement.
(b) The
Note.
(c) The CBL
Mortgages together with title commitments from title insurance
companies acceptable to the Bank, providing for the issuance of
mortgagee's loan policies insuring the liens of the CBL Mortgages
in
form, substance and amount satisfactory to the Bank, containing
no
exceptions which are unacceptable to
