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$212,000,000.00
LOAN AGREEMENT
Effective as of January 31, 2001
By and Among
CBL & ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited Partnership, as Borrower,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender and as Sole Lead Arranger and Administration Agent,
FLEET NATIONAL BANK, as a Lender and as Documentation Agent,
U.S. BANK, NATIONAL ASSOCIATION, as a Lender and as Syndication Agent,
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as a Lender and as Managing Agent, and
KEYBANK NATIONAL ASSOCIATION, as a Lender
TOGETHER WITH THOSE ASSIGNEES
BECOMING PARTIES HERETO PURSUANT TO SECTION 8.6
as Lenders,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Agent
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TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS________________________________________________________2
1.1 Definitions___________________________________________________________2
1.2 Use of Defined Terms_________________________________________________19
1.3 Accounting Terms, Calculation________________________________________19
1.4 Terminology__________________________________________________________20
ARTICLE 2 - THE LOAN__________________________________________________________21
2.1 Commitment to Lend___________________________________________________21
2.2 Method of Borrowing__________________________________________________21
2.3 Notes________________________________________________________________23
2.4 Interest Rate________________________________________________________24
2.5 Special Provisions for LIBOR Advances________________________________25
2.6 Payments_____________________________________________________________27
2.7 Fees_________________________________________________________________29
2.8 Computation of Interest and Fees_____________________________________30
2.9 Option to Replace Lenders____________________________________________30
2.10 Extension of Maturity Date__________________________________________31
2.11 Amount Limitations__________________________________________________32
ARTICLE 3 - CONDITIONS________________________________________________________32
3.1 Effectiveness________________________________________________________32
3.2 Advances_____________________________________________________________35
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES____________________________________36
4.1 Organization and Power_______________________________________________36
4.2 Validity of Loan Instruments_________________________________________36
4.3 Binding Effect_______________________________________________________36
4.4 Financial Information________________________________________________37
4.5 Litigation___________________________________________________________37
4.6 ERISA________________________________________________________________37
4.7 Hazardous Substances_________________________________________________38
4.8 Taxes and Other Payments_____________________________________________39
4.9 Not an Investment Company____________________________________________40
4.10 Information_________________________________________________________40
4.11 Insurance___________________________________________________________40
4.12 Governmental Requirements___________________________________________40
4.13 ERISA; Plan Assets__________________________________________________40
4.14 Single Purpose Entities_____________________________________________40
ARTICLE 5 - COVENANTS_________________________________________________________41
5.1 Reporting Requirements_______________________________________________41
5.2 Payment and Performance______________________________________________43
5.3 Maintenance of Property; Insurance___________________________________44
5.4 Business; Existence__________________________________________________44
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5.5 Payment of Impositions_______________________________________________44
5.6 Compliance with Legal Requirements___________________________________45
5.7 Inspection of Property, Books and Records____________________________45
5.8 Maximum Floating Rate Debt___________________________________________45
5.9 Consolidations, Mergers and Sales of Assets__________________________45
5.10 Use of Proceeds_____________________________________________________46
5.11 Investment Concentration____________________________________________46
5.12 Leverage Ratio______________________________________________________48
5.13 Minimum Net Worth___________________________________________________48
5.14 Interest Coverage Ratio_____________________________________________48
5.15 Debt Coverage Ratio_________________________________________________48
5.16 ERISA_______________________________________________________________48
5.17 Liens_______________________________________________________________48
5.18 Restricted Payments_________________________________________________48
5.19 Non-Guarantors______________________________________________________49
5.20 Unsecured Indebtedness______________________________________________49
5.21 Maximum Recourse Indebtedness_______________________________________49
5.22 Negative Pledge_____________________________________________________49
ARTICLE 6 - DEFAULTS__________________________________________________________50
6.1 Events of Default____________________________________________________50
6.2 Remedies_____________________________________________________________54
6.3 Curing Defaults Concerning Properties________________________________54
6.4 Permitted Deficiencies_______________________________________________55
6.5 Transfer or Refinancing of Properties________________________________55
ARTICLE 7 - THE AGENT_________________________________________________________57
7.1 Appointment and Authorization________________________________________57
7.2 Agent and Affiliates_________________________________________________57
7.3 Action by Agent______________________________________________________57
7.4 Consultation with Experts____________________________________________58
7.5 Reliance by Agent____________________________________________________58
7.6 Defaults_____________________________________________________________58
7.7 Indemnification______________________________________________________58
7.8 Credit Decision______________________________________________________59
7.9 Failure to Act_______________________________________________________59
7.10 Resignation or Removal of Agent; Co-Agent___________________________59
7.11 Consent and Approvals_______________________________________________60
7.12 Agency Provisions Relating to Properties; Expenses__________________62
7.13 Defaulting Lenders__________________________________________________63
7.14 Borrower Not a Beneficiary__________________________________________65
ARTICLE 8 - MISCELLANEOUS_____________________________________________________65
8.1 Notices______________________________________________________________65
8.2 No Waiver____________________________________________________________66
8.3 Expenses; Documentary Taxes; Indemnification_________________________66
8.4 Waiver of Set-Offs; Sharing of Set-Offs______________________________67
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8.5 Amendments and Waivers_______________________________________________68
8.6 Successors and Assigns_______________________________________________69
8.7 Capital Adequacy_____________________________________________________71
8.8 Counterparts_________________________________________________________72
8.9 Notice of Final Agreement____________________________________________72
8.10 Invalid Provisions__________________________________________________72
8.11 Maximum Rate________________________________________________________72
8.12 Limitation Upon Liability___________________________________________72
8.13 Course of Dealing___________________________________________________73
8.14 Treatment of Certain Information; Confidentiality___________________73
8.15 Conflict of Terms___________________________________________________74
8.16 Governing Law; Submission to Jurisdiction___________________________74
8.17 Waiver of Right to Trial by Jury____________________________________74
8.18 Replacement of Notes________________________________________________75
Schedule 1.1(a) Initial Guarantors
Schedule 1.1(b) Interests
Schedule 1.1(c) Properties
Schedule 4.5 Litigation
Schedule 4.6 ERISA Plans
Schedule 4.7 Environmental Reports
Schedule 4.11 Insurance
Schedule.6.3 Required Principal Payment and Reduction in Commitments
Upon Removal of Property Under Section 6.3
Schedule.6.5 Required Principal Payment and Reduction in Commitments
Upon Removal of Property Under Section 6.5
Exhibit A Notice of Borrowing
Exhibit B Rate Selection Notice
Exhibit C Form of Revolving Note
Exhibit D Form of Term Note
Exhibit E Form of Extension Notice
Exhibit F Form of Guaranty
Exhibit G Form of Assignment
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LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made and entered into as of the
31st day of January, 2001, by and between CBL & ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership (hereinafter referred to as the "Borrower"),
WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association ("Wells
Fargo"), FLEET NATIONAL BANK, a national banking association, U.S. BANK NATIONAL
ASSOCIATION, a national banking association, COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, a German banking corporation , and KEYBANK NATIONAL
ASSOCIATION, a national banking association, together with those assignees
becoming parties hereto pursuant to Section 8.6 hereof, hereinafter referred to
individually as a "Lender" and collectively as the "Lenders"), and WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, as agent for the
benefit of each of the Lenders (in such capacity, the "Agent"), and as sole lead
arranger and administrative agent.
W I T N E S S E T H:
--------------------
WHEREAS, Borrower has entered into that certain Master Contribution
Agreement dated as of September 25, 2000, as amended on December 19, 2000, by
and among Jacobs Realty Investors Limited Partnership, Richard E. Jacobs as
Trustee for the Richard E. Jacobs Revocable Living Trust, Richard E. Jacobs,
Trustee for the David H. Jacobs Marital Trust (collectively, the "Jacobs
Parties"), CBL Properties, Inc. and Borrower, pursuant to which Borrower has
contracted to purchase, either directly or through wholly owned subsidiaries,
certain partnership and other ownership interests (the "Interests") owned by the
Jacobs Parties, either directly or through affiliates, in the owners of, or the
fee title (the "Fee Titles") owned by the Jacobs Parties, either directly or
through affiliates to, up to twenty-one regional shopping centers and two
associated centers (individually a "Property" and collectively the
"Properties"), and to purchase the Interests of the Jacobs Parties in Weston
Management Company Limited Partnership, and
WHEREAS, Borrower desires to obtain from Lenders, and Lenders desires to
make to Borrower, a term loan in an amount up to $106,725,000.00 to finance a
portion of the purchase price of the Interests and the Fee Titles, and certain
closing costs associated with the acquisition of the Interests and Fee Titles;
and
WHEREAS, Borrower desires to obtain from Lenders, and Lenders desire to
make to Borrower, a revolving loan in an amount up to $105,275,000.00 to be used
for capital expenditures, tenant improvements, development fees, leasing
commissions and other commercially reasonable purposes relating to the
Properties, for the payment of closing costs incurred in connection with the
acquisition of the Interests and Fee Titles, for the purchase of Interests and
for the purchase of third-party ownership interests in the Property Owners (as
that term is defined herein).
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NOW, THEREFORE, in consideration of the premises and the mutual obligations
and covenants hereinafter contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. When used herein, the following terms shall have
the following meanings:
"Adjusted Asset Value" means, with respect to Borrower, as of a given date,
(a) EBITDA for Borrower's fiscal quarter most recently ended multiplied by (b) 4
and divided by (c) the Capitalization Rate. For purposes of determining
Borrower's Adjusted Asset Value, EBITDA shall be adjusted by the Agent in its
reasonable discretion to take into account acquisitions and dispositions of
property by Borrower and shall exclude any EBITDA from property not owned by
Borrower for the entire fiscal quarter most recently ended or upon which
construction was in progress at the end of the fiscal quarter most recently
ended and, during the fifteen months after the purchase of real property by
Borrower (other than the Properties), shall exclude any EBITDA from such real
property. For purposes of determining Borrower's Adjusted Asset Value, EBITDA
from any Subsidiary of Borrower which is not a Wholly Owned Subsidiary shall be
adjusted to reflect Borrower's proportionate ownership interest in such
Subsidiary, in a manner approved by Agent and Majority Lenders.
"Advance" or "Advances" shall mean, individually or collectively as the
context permits or requires, a Term Loan Advance and/or a Revolving Loan
Advance.
"Advance Termination Date" means the date which is ninety (90) days prior
to the Maturity Date.
"Affiliate" shall mean, 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
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(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.
"Applicable LIBOR Rate Margin" means, as of any date of determination: (i)
1.125% if, for the most recent fiscal quarter in respect of which Borrower is
required to have delivered financial statements, the Leverage Ratio was less
than 0.45 to 1.0; (ii) 1.35% if, for the most recent fiscal quarter in respect
of which Borrower is required to have delivered financial statements, the
Leverage Ratio was greater than or equal to 0.45 to 1.0 but less than 0.50 to
1.0; (iii) 1.55% if, for the most recent fiscal quarter in respect of which
Borrower is required to have delivered financial statements, the Leverage Ratio
was greater than or equal to 0.50 to 1.0 but less than 0.55 to 1.0; (iv) 1.75%
if, for the most recent fiscal quarter in respect of which Borrower is required
to have delivered financial statements, the Leverage Ratio was greater than or
equal to 0.55 to 1.0 but less than 0.60 to 1.0; or (v) 2.00% if, for the most
recent fiscal quarter in respect of which Borrower is required to have delivered
financial statements, the Leverage Ratio was not less than 0.60 to 1.0; provided
that if, as of the forty-fifth (45th) day after the end of a fiscal quarter,
Borrower has not delivered the compliance certificate required to be delivered
pursuant to Section 5.1(c) hereof setting forth the Leverage Ratio for such
fiscal quarter, then, for the period commencing on such forty-fifth (45th) day
and continuing until such compliance certificate is so delivered, the
"Applicable LIBOR Rate Margin" shall be 2.00%.
"Asset Value" means (a) with respect to Wholly-Owned Subsidiaries, the sum
of (i) the EBITDA from completed properties owned by such Wholly-Owned
Subsidiaries divided by the Capitalization Rate, plus (ii) the book value of the
properties under construction owned by such Wholly-Owned Subsidiaries, and (b)
with respect to all other Subsidiaries, the sum of (i) Borrower's proportionate
share of EBITDA from completed properties owned by such Subsidiaries divided by
the Capitalization Rate, plus (ii) Borrower's proportionate share of the book
value of the properties under construction owned by such Subsidiaries.
"Base Rate" shall mean an interest rate per annum, fluctuating daily, equal
to the higher of (a) the rate announced by Agent from time to time at its
principal office in San Francisco, California as its prime rate in effect on
such day, or (b) the Federal Funds Rate in effect on such day plus 0.5%. The
Base Rate is not necessarily intended to be the lowest rate of interest charged
by Agent or any Lender in connection with extensions of credit. Each change in
Base Rate shall result in a corresponding change in the interest rate hereunder
with respect to a Base Rate Advance and such change shall be effective on the
effective date of such change in the Base Rate.
"Base Rate Advance" means any Advance hereunder with respect to which the
interest rate is calculated by reference to the Base Rate.
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"Business Day" means any day on which all major departments of Agent are
open for business at its downtown headquarters in San Francisco, California.
"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.
"Capitalization Rate" means (a) eight and one-half percent (8.50%), as to
EBITDA from regional malls and power centers or (b) nine and one-quarter percent
(9.25%), as to all other EBITDA.
"CBL Management, Inc." means CBL & Associates Management, Inc., a Delaware
corporation.
"CBL Properties, Inc." means CBL & Associates Properties, Inc., a Delaware
corporation, a qualified public REIT and sole shareholder of Holdings I and
Holdings II.
"Combined" means, as to any calculation hereunder, that such calculation
shall be made on a combined basis for Borrower, Holdings I, Holdings II, CBL
Properties, Inc. and CBL Management, Inc., with each such calculation being
made, (a) in respect of Borrower, on a consolidated basis for Borrower and its
Subsidiaries, (b) in respect of Holdings I, on a consolidated basis for Holdings
I and its Subsidiaries, (c) in respect of Holdings II, on a consolidated basis
for Holdings II and its Subsidiaries, (d) in respect of CBL Properties, Inc., on
a consolidated basis for CBL Properties, Inc. and its Subsidiaries, and (e) in
respect of CBL Management, Inc., on a consolidated basis for CBL Management,
Inc. and its Subsidiaries.
"Consequential Loss" means, for any Lender with respect to (a) Borrower's
payment of all or any portion of the then-outstanding principal amount of a
LIBOR Advance on a day other than the last day of the Interest Period applicable
thereto or (b) any of the circumstances specified in Section 2.2(c) upon which a
Consequential Loss may be incurred, any loss, cost or expense incurred by such
Lender as a result of the timing of such payment or Advance or in the
redepositing, redeploying or reinvesting the principal amount so paid or
affected by the timing of such Advance or the circumstances described in Section
2.2(c) including the sum of (i) the interest which, but for the payment or
timing of the Advance, such Lender would have earned in respect of such
principal amount, reduced, if such Lender is able to redeposit, redeploy, or
reinvest such principal amount by the interest earned by such Lender as a result
of so redepositing, redeploying or reinvesting such principal amount, plus (ii)
any expense or penalty incurred by such Lender on redepositing, redeploying or
reinvesting such principal amount.
"Contingent Obligations" means, for any Person, any material commitment,
undertaking, Guarantee or other material obligation constituting a contingent
liability under GAAP, but only to the extent the same are required to be
reflected on such Person's audited financial statements.
"Conversion Date" has the meaning set forth in Section 2.2(c) hereof.
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"Credit Agreement" means that certain $130,000,000.00 Fifth Amended and
Restated Credit Agreement dated August 4, 2000, among Borrower, Wells Fargo
Bank, National Association, U.S. Bank, National Association, Fleet National Bank
and Wachovia Bank, as lenders thereunder, and Wells Fargo Bank, National
Association, as agent thereunder, as the same has been or may be amended from
time to time.
"Debt Coverage Ratio" shall mean, as of any date the same is calculated,
the ratio of (a) EBITDA for the fiscal quarter ending on or most recently ended
prior to such date to (b) Debt Service during such fiscal quarter, in each case
calculated on a Combined basis in accordance with GAAP.
"Debt Service" means, with respect to Borrower, Holdings I, Holdings II,
CBL Properties, Inc., and their respective Subsidiaries for any period, the sum
of (a) Interest Expense of Borrower, Holdings I, Holdings II, CBL Properties,
Inc. and their respective Subsidiaries for such period, plus (b) regularly
scheduled principal payments on Indebtedness of Borrower, Holdings I, Holdings
II, CBL Properties, Inc. and their respective Subsidiaries during such period
other than (v) any principal payment made pursuant to Paragraph 8.14 of that
certain Collateral Security and Escrow Agreement dated December 16, 1996 between
Parkdale Mall Associates, Teachers Insurance and Annuity Association of America
and Key Trust Company of Ohio, (w) amortization payments on the Loan required to
be made under Section 2.6(c) hereof, (x) required amortization payments under
the Credit Agreement, and (y) any regularly scheduled principal payment payable
on any Indebtedness which repays 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 for such prepayment.
"Default" means any condition or event which, with the giving of notice or
lapse of time or both would, unless cured or waived, become an Event of Default.
"Defaulting Lender" means any Lender which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) days after notice from
Agent.
"EBITDA" means, for any period, the sum of (i) Net Income of Borrower,
Holdings I, Holdings II, 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, Holdings I, Holdings II, CBL Properties,
Inc. and their respective Subsidiaries for such period, plus (iii) interest
expense of Borrower, Holdings I, Holdings II, CBL Properties, Inc. and their
respective Subsidiaries for such period, plus (iv) income tax expense (federal
and state) in respect of such period, plus
(v) cash dividends and distributions actually received by Borrower, Holdings I,
Holdings II, 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, Holdings I, Holdings II, 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, Holdings I, Holdings II,
CBL Properties, Inc. and their respective Subsidiaries (and any unusual gains
arising in or outside the ordinary course of business of Borrower, Holdings I,
Holdings II, CBL Properties, Inc. or such respective Subsidiaries not included
in extraordinary gains determined in accordance with GAAP that have been
reflected in the determination of Net Income) for such period, determined in
each case on a Combined basis in accordance with GAAP.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.1 hereof.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concession, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules and regulations from time to time
promulgated thereunder.
"ERISA Affiliate" means each trade or business (whether or not
incorporated) which, together with Borrower, is treated as a single employer
under Sections 414(b), (c), (m) or (o) of the Internal Revenue Code.
"ERISA Plan" means any employee benefit plan subject to Title I of ERISA.
"Event of Default" has the meaning set forth in Section 6.1 hereof.
"Excess Standby Purchase Agreement Obligations" means the amount by which,
at any time, the Contingent Obligation of Borrower, Holdings I, Holdings II, CBL
Properties, Inc. and their Subsidiaries under Standby Purchase Agreements
exceeds $200,000,000.00.
"Excluded Taxes" means, with respect to the Agent or any Lender, without
duplication (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office
6
is located, (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction described in clause (a)
above and (c) any withholding tax that would apply to amounts payable to any
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office).
"Extension Term" shall mean each one (1) year period by which the Maturity
Date may be extended pursuant to Section 2.10 hereof.
"Fee Title" shall mean the fee simple title to any Property.
"Federal Funds Rate" means, on any day, the rate per annum (rounded upward,
if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (i) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if no
such rate is published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to Agent on such day of such
transactions as determined by Agent.
"FIRREA" means the Financial Institution Recovery, Reform and Enforcement
Act of 1989, as amended from time to time.
"Floating Rate Debt" means any Indebtedness which is outstanding and bears
interest at a rate which is subject to periodic adjustment (either automatically
by reference to a fluctuating base or market rate of interest or at the option
of the lender), excluding Reserved Construction Loans.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America.
"Forward Equity Commitment" means any contract or other agreement pursuant
to which a Person agrees to issue Capital Stock, partnership interests, or other
equity interests in order to secure Indebtedness.
"Funds from Operations" means, as to any period, an amount equal to (a)
income (loss) from operations of Borrower, Holdings I, Holdings II, CBL
Properties, Inc. and their respective Subsidiaries for such period, excluding
gain (loss) from debt restructuring and sale of properties, plus (b)
depreciation and amortization of real estate assets, 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.
7
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those which, in accordance with the last sentence of
Section 1.3(a) hereof, are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Governmental Authority" means, in respect any Person, any government (or
any political subdivision or jurisdiction thereof) , court, bureau, agency or
other governmental authority having jurisdiction over such Person or any
Affiliate of such Person or any of its or their business, operations or
properties.
"Gross Asset Value" means, at a given time, the sum of (a) Adjusted Asset
Value at such time, plus (b) all of Borrower's cash and cash equivalents at the
end of the fiscal quarter most recently ended, plus (c) the current book value
of all unimproved real property owned by Borrower, including all real property
owned by Borrower upon which construction is in progress at the time such
calculation is made (such real property to include outparcels of projects under
construction, whether or not construction is in progress on such outparcels),
plus (d) the purchase price paid by Borrower for any improved real property
(other than a Property) purchased by Borrower during the fifteen (15) months
after the acquisition of such real property, plus (e) the value of the
Investments to be made under Investment Contracts and Repurchase Agreements, to
the extent obligations under such Investment Contracts and Repurchase Agreements
are included in Total Obligations, excluding the value of Standby Purchase
Agreements, but including Excess Standby Purchase Agreement Obligations.
"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 loss 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.
"Guarantor" or "Guarantors" shall mean, individually or collectively as the
context permits or requires, those Persons listed on Schedule 1.1(a) hereto, and
any other Person executing a Guaranty.
"Guaranty" or "Guarantys" shall mean, individually or collectively as the
context permits or requires, those instruments or agreements of guaranty, now or
hereafter in effect, from one or more Guarantors guaranteeing repayment of all
or any part of the Loan.
"Hazardous Substances" shall mean any pollutant, contaminant, hazardous,
toxic or dangerous waste, substance or material, or any other substance or
material regulated or
8
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 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.
"Holdings I" means CBL Holdings I, Inc., a Delaware corporation, and a
Wholly Owned Subsidiary of CBL Properties, Inc. and the sole general partner of
Borrower.
"Holdings II" means CBL Holdings II, Inc., a Delaware corporation, and a
Wholly Owned Subsidiary of CBL Properties, Inc. and a limited partner of
Borrower.
"Impositions" shall mean (i) all real estate and personal property taxes,
charges, assessments, excises and levies and any interest, costs or penalties
with respect thereto, general and special, ordinary and extraordinary, foreseen
and unforeseen, of any kind and nature whatsoever, which at any time prior to or
after the execution hereof may be assessed, levied or imposed upon the
Properties or the ownership, use, occupancy or enjoyment thereof, or any portion
thereof, or the sidewalks, streets or alleyways adjacent thereto; (ii) any
charges, fees, license payments or other sums payable for any easement, license
or agreement maintained for the benefit of the Properties; and (iii) water, gas,
sewer, electricity, telephone and other utility charges and fees that are or may
become a Lien against the Properties.
"Indebtedness" shall mean, as applied to any Person at any time, without
duplication (a) all indebtedness, obligations or other liabilities of such
Person (i) for borrowed money or evidenced by debt securities, debentures,
acceptances, notes or other similar instruments, and any accrued interest, fees
and charges relating thereto; (ii) with respect to letters of credit issued for
such Person's account; (iii) under agreements for the prospective purchase or
repurchase of assets other than obligations arising under unexercised option
agreements; (iv) to make future Investments in any Person; (v) to pay the
deferred purchase price of property or services previously purchased or
rendered, except unsecured trade accounts payable and accrued expenses arising
in the ordinary course of business; (vi) as a lessee arising under a lease that
is 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).
9
"Indemnitee" has the meaning set forth in Section 8.3(c) hereof.
"Interest" or "Interests" shall mean, individually or collectively as the
context permits or requires, ownership interests in the entities listed on
Schedule 1.1(b) hereto.
"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, (b) such Person's proportionate share of
any interest expense, whether paid or accrued, of its Unconsolidated Affiliates,
and (c) to the extent not included in clause (b), one hundred percent (100%) of
any interest expense, whether paid or accrued, of 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 and (iii) all interest payable on funds drawn under the
Credit Agreement and used for the development of specific real estate projects.
"Interest Period" means, with respect to a LIBOR Advance, a period
commencing:
(a) on the borrowing date of such LIBOR Advance made pursuant to Section
2.2(a) of this Agreement; or
(b) on the Conversion Date pertaining to such LIBOR Advance, if such LIBOR
Advance is made pursuant to a conversion as described in Section 2.2(c) hereof;
or
(c) on the last day of the preceding Interest Period in the case of a
rollover to a successive Interest Period;
and ending 1, 2, 3, 6 or (if available) 12 months thereafter, as Borrower shall
elect in accordance with Section 2.2(c) of this Agreement; provided, that:
(i) any Interest Period that would otherwise end on a day which is not a
LIBOR Business Day shall be extended to the next succeeding LIBOR Business Day,
unless such LIBOR Business Day falls in another calendar month in which case
such Interest Period shall end on the next preceding LIBOR Business Day;
(ii) any Interest Period that begins on the last LIBOR Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the
10
calendar month or at the end of such Interest Period) shall, subject to clause
(i) above, end on the last LIBOR Business Day of a calendar month;
(iii) if the Interest Period for any LIBOR Advance would otherwise end
after the Maturity Date of the Loan, then such Interest Period shall end on the
Maturity Date of the Loan; and
(iv) if Borrower elects an Interest Period of 12 months with respect to any
LIBOR Advance, and any Lender determines that either deposits in United States
Dollars (in the applicable amounts) are not being offered to it in the interbank
eurodollar market for such Interest Period or that quotes of the LIBOR Rate are
not available for such Interest Period, then Agent shall give notice thereof to
Borrower, and Borrower shall be deemed to have elected an Interest Period of 6
months.
"Interest Rate Contracts" means, collectively, interest rate swap, collar,
cap or similar agreements providing interest rate protection, in form and
substance acceptable to Agent.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"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.
"Investment Contract" means any binding letter of intent, contract or other
agreement pursuant to which Borrower is obligated to purchase raw land or
developed real property, or to make an Investment in any Person, or to extend
credit to any Person.
"Lease" means any lease, sublease, license, concession or other agreement
(written or verbal, now or hereafter in effect) to which Borrower or any
Property Owner is a party and which grant a possessory interest in and to, or
the right to use, all or any part of a Property, save and except any lease or
sublease pursuant to which Borrower or any Property Owner is granted a
possessory interest in the land underlying such Property.
"Legal Requirements" shall mean (i) any and all present and future judicial
decisions, statutes, rulings, rules, regulations, permits, certificates or
ordinances of any Governmental Authority in any way applicable to Borrower, any
Property Owner or Weston, or any Property, including, without limiting the
generality of the foregoing, the ownership, use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction thereof; (ii) any
and all covenants, conditions and restrictions contained in any deed or other
form of conveyance or in any other instrument of any nature that relate in any
way or are applicable to the Properties or the ownership, use or occupancy
thereof; (iii) Borrower's, each such Property Owner's and Weston's presently or
subsequently effective Articles of Partnership, Limited Partnership, Joint
Venture, Trust or other form of business association agreement; and (iv) any
lease or other
11
contract pursuant to which Borrower or any Property Owner is granted a
possessory interest in any Property.
"Lender" or "Lenders" means, individually or collectively as the context
permits or requires, the Lenders identified in the preamble hereto, their
respective successors and assigns.
"Lending Office" means Agent's office located 420 Montgomery Street, 6th
Floor, San Francisco, California 94163, or such other office as Agent may
hereafter designate as its Lending Office by notice to Borrower and Lenders.
"Leverage Ratio" means, as of any date the same is calculated, the ratio of
(a) Total Obligations as of the last day of the fiscal quarter ending on or most
recently ended prior to such date to (b) Gross Asset Value as of the last day of
such fiscal quarter, determined in each case on a Combined Basis in accordance
with GAAP.
"LIBOR Advance" means any Advance hereunder with respect to which the
interest rate is calculated by reference to the LIBOR Rate for a particular
Interest Period.
"LIBOR Business Day" means a Business Day on which dealings in United
States Dollars are carried out in the London interbank market.
"LIBOR Rate" means, with respect to any Interest Period, the rate per annum
which is equal to the quotient of the average rate per annum (determined solely
by the Agent and rounded upwards, if necessary, to the next higher 1/16 of 1%)
at which deposits in United States Dollars are offered to Wells Fargo Bank by
brokers in the London interbank market as of 11:00 a.m. (London time) two (2)
LIBOR Business Days prior to the first day of such Interest Period, in an amount
equal to LIBOR Advance so requested and for a period equal to such Interest
Period. Each determination of the LIBOR Rate by Agent shall, in absence of
manifest error, be conclusive and binding.
"LIBOR Reserve Requirement" means the daily average during the Interest
Period of the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other schedule changes in reserve requirements
during the Interest Period) which is imposed under Regulation D against
"Eurocurrency liabilities" as defined in Regulation D. Each determination by
Agent of the LIBOR Reserve Requirement shall, in the absence of manifest error,
be conclusive and binding.
"Lien" means any deed to secure debt, mortgage, deed of trust or similar
security instruments (including any Mortgage), pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security interest
under the Uniform Commercial Code or comparable law of any jurisdiction).
12
"Loan" means, collectively, the Term Loans and the Revolving Loans.
"Loan Documents" means this Agreement, the Notes, the Guaranties, and any
and all other documents executed and delivered by Borrower or any Guarantor in
connection with the Loan.
"Majority Lenders" shall mean, at any time, Lenders holding at least
sixty-six and two-thirds percent (66 2/3%) of the aggregate principal amount of
the Total Commitments or, if the Term Loan has been repaid in full and the
Lenders have no further obligation to make any Revolving Loan Advances, Lenders
holding at least sixty-six and two-thirds percent (66 2/3%) of the aggregate
outstanding principal amount of the Loan; provided however, in determining such
percentage at any given time, all then existing Defaulting Lenders will be
disregarded and excluded and the Pro Rata Shares of Lenders shall be
redetermined, for voting purposes only, to exclude the Pro Rata Shares of such
Defaulting Lenders; provided further, however, Majority Lenders must always
include at least two (2) Lenders.
"Maturity Date" means the earlier to occur of (a) January 31, 2003, or such
later date to which the Maturity Date may be extended pursuant to Section 2.10
hereof, (b) the date Lenders' commitment to fund Advances are terminated
pursuant to Section 6.2 hereof or (c) the date on which (i) the Term Loan has
been repaid in full, and (ii) Lender's Revolving Commitments are reduced to zero
by Borrower pursuant to Section 2.1(b) hereof.
"Maximum Rate" means the highest nonusurious rate of interest (if any)
permitted from day to day by applicable law.
"Mortgage" shall mean a mortgage, deed of trust, deed to secure debt or
similar security instrument made or to be made by a Person owning real estate or
an interest in real estate granting a Lien on such real estate or interest in
real estate as security for the payment of Indebtedness.
"Net Income" means, with respect to Borrower, Holdings I, Holdings II, 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 Worth" means, with respect to Borrower, Holdings I, Holdings II, 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) cumulative depreciation and amortization after
September 30, 2000, plus (d) the book value of Borrower's, Holdings I's,
Holdings II's, CBL Properties', Inc.'s and their Subsidiaries' Investments in
13
Unconsolidated Affiliates, minus (e) all intangible assets, determined on a
Combined basis in accordance with GAAP.
"Non-ERISA Plan" means any Plan subject to Section 4975 of the Internal
Revenue Code.
"Non-Guarantors" means any Subsidiary or Affiliate of Borrower, excepting
only the Guarantors.
"Non Pro Rata Advance" means an Advance with respect to which less than all
Lenders have funded their respective Pro Rata Shares of such Advance and the
failure of the non-funding Lender or Lenders to fund its or their respective Pro
Rata Shares of such Advance constitutes a breach of this Agreement. For purposes
of this definition, the Pro Rate Shares of the Lenders will be calculated
without regard to the proviso contained in the definition of "Pro Rata Share."
"Notes" means collectively the Term Notes and the Revolving Notes, and all
renewals, modifications and extensions thereof, and "Note" means any one of the
Notes.
"Notice of Borrowing" means a notice substantially in the form of Exhibit A
attached hereto.
"Obligations" means the Loan and any and all other Indebtedness,
liabilities and obligations of Borrower to the Lenders, or any of them, or to
any Indemnitee, of every kind and nature (including, without limitation,
interest charges, expenses, attorneys' fees and other sums chargeable to
Borrower by Lenders and future advances made to or for the benefit of Borrower),
arising under this Agreement or under any of the other Loan Documents, whether
direct or indirect, absolute or contingent, primary or secondary, due or to
become due, now existing or hereafter acquired.
"Permitted Liens" means (i) pledges or deposits made to secure payment of
worker's compensation (or to participate in any fund in connection with worker's
compensation insurance), unemployment insurance, pensions or social security
programs, (ii) encumbrances consisting of zoning restrictions, easements
(including reciprocal easement agreements), leases, or other restrictions or
agreements on the use of real property, provided that such items do not
materially impair the use of such property for the purposes intended and none of
which is violated in any material respect by existing or proposed structures or
land use (except to the extent covered by title insurance), (iii) the following
to the extent no Lien has been filed in any applicable jurisdiction or agreed
to: (A) Liens for taxes not yet due and payable; and (B) Liens imposed by
mandatory provisions of law such as for materialmen's, mechanic's,
warehousemen's and other like Liens arising in the ordinary course of business,
securing payment of Indebtedness whose payment is not yet due that are being
contested in good faith by appropriate proceedings, (iv) Liens for taxes,
assessments and governmental charges or assessments that are being contested in
good faith by appropriate proceedings diligently conducted, and for which
reserves or other adequate security acceptable to Agent have been provided, (v)
to the extent expressly approved in writing by Agent, Liens on Properties where
14
Borrower is insured against such Liens by title insurance, (vi) Liens securing
assessments or charges payable to a property owner association or similar
entity, which assessments are not yet due and payable, (vii) Liens against the
Properties existing on the date hereof, (viii) UCC-1 financing statements
relating to Liens which have been terminated, (ix) any Lien constituting a
renewal, extension or replacement of any Permitted Lien (including the
reallocation of the debt secured by an existing Permitted Lien and any
refinancing of debt secured by a mortgage or similar security instrument which
is a Permitted Lien, which refinancing may increase the principal amount of the
debt so secured), (x) Liens which either affects solely the property of a tenant
under a lease or is the obligation of such a tenant to discharge, cure or comply
with, (xi) any attachment or judgment Lien relating to a judgment (1) in
existence less than 30 days after the entry thereof or (2) with respect to which
(A) execution has been stayed, (B) payment is covered by insurance (subject to a
customary deductible) or (C) the Borrower shall in good faith be prosecuting an
appeal or proceedings for review and shall have set aside on its books such
reserves as may be required under GAAP with respect to such judgment, and (xii)
first priority mortgages or similar security instruments encumbering Towne Mall
and/or Randolph Mall.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Internal Revenue Code.
"Pro Rata Share" means, with respect to any Lender, the percentage obtained
by dividing (a) such Lender's Total Commitment by (b) the aggregate Total
Commitments of all Lenders, or, if the Term Loan has been repaid in full and
Lenders have no further obligation to make any Revolving Loan Advances, the
percentage obtained by dividing (x) the aggregate unpaid principal amount of
such Lender's Note or Notes by (y) the aggregate unpaid principal amount of all
Lenders' Notes; provided however, in determining such percentage at any given
time, all then existing Defaulting Lenders will be disregarded and excluded and
the Pro Rata Shares of Lenders shall be redetermined to exclude the Pro Rata
Shares of such Defaulting Lenders.
"Property" or "Properties" shall mean, individually or collectively as the
context permits or requires, those certain regional malls and associated centers
listed on Schedule 1.1(c) hereto.
"Property Owner" means any partnership, limited liability company,
corporation or other Person which owns the fee or leasehold title to all or any
portion of any Property.
"Rate Selection Notice" has the meaning set forth in Section 2.2(c) hereof.
Each Rate Selection Notice shall be substantially in the form of Exhibit B
attached hereto.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
15
"REIT" means a real estate investment trust qualified under the Internal
Revenue Code.
"Repurchase Agreement" means a binding letter of intent, contract or other
agreement pursuant to which a Person agrees to sell Capital Stock, partnership
interests or other equity interests, and to repurchase the same at a specified
time for a specified price.
"Reserved Construction Loan" shall mean a construction loan extended to
Borrower or a Subsidiary of Borrower for the construction of a project in
respect of which: (a) neither any monetary or material non-monetary default nor
any event of default exists; (b) interest on such loan has been budgeted to
accrue at a rate of not less than the Base Rate plus two percent (2%) at the
time the interest reserve account is established; (c) the amount of such
budgeted interest has been (i) included in the principal amount of such loan and
(ii) segregated into an interest reserve account (which shall include any
arrangement whereby loan proceeds equal to such budgeted interest are reserved
and only disbursed to make interest payments in respect of such loan); (d)
absent an event of default or a monetary or material non-monetary default, such
interest can be paid out of such interest reserve account only for the purpose
of making interest payments on such loan; (e) the amount held in such interest
reserve account in respect of such loan, together with the net income if any,
from such project projected by the Agent in its reasonable judgment, will be
sufficient, as reasonably determined by the Agent from time to time, to pay all
Interest Expense on such loan until the date that the net income of the project
being financed by such loan is anticipated to be sufficient to pay all Interest
Expense on such loan; and (f) Borrower has delivered all certificates required
by Section 5.1(e) hereof.
"Revolving Commitment" means, in respect of each Lender, the obligation of
such Lender to make Revolving Loan Advances to Borrower, subject to the terms
and conditions hereof, up to an aggregate principal amount not to exceed at any
one time outstanding the amount set forth opposite such Lender's name on the
signature pages hereto or as set forth in any amendment to this Agreement,
subject to adjustment, in the case of any Lender, from time to time by
assignment pursuant to Section 8.6 hereof, and "Revolving Commitments" shall
mean the Revolving Commitment of all the Lenders in an aggregate principal
amount not to exceed at any one time outstanding One Hundred Five Million Two
Hundred Seventy Five Thousand and No/100 Dollars ($105,275,000.00).
"Revolving Loan" means the aggregate principal amount of outstanding
Revolving Loan Advances made by Lenders pursuant to Section 2.1(b) hereof. In no
event shall the aggregate principal amount of all outstanding Revolving Loan
Advances at any one time exceed One Hundred Five Million Two Hundred
Seventy-Five Thousand and No/100 Dollars ($105,275,000.00).
"Revolving Loan Advance" shall have the meaning given such term in Section
2.1(b) hereof. A Revolving Loan Advance may be either a LIBOR Advance or a Base
Rate Advance.
"Revolving Notes" means the revolving promissory notes executed by
Borrower, substantially in the form of Exhibit C hereto, payable to each of the
Lenders in an amount equal
16
to such Lender's Revolving Commitment, as the same may be amended, supplemented,
modified, or restated from time to time, evidencing the obligation of Borrower
to repay the Revolving Loan, and all renewals, modifications and extensions
thereof, and "Revolving Note" means any one of the Revolving Notes.
"Senior Officer" shall mean, with respect to Borrower, Holdings I or CBL
Properties, Inc., the President, Chief Executive Officer, Chief Financial
Officer, any Senior Executive Vice President, Executive Vice President or Senior
Vice President of both CBL Properties, Inc. and Holdings I.
"Significant Subsidiary" shall mean any Subsidiary which has assets having
an aggregate book value in excess of $500,000.
"Standby Purchase Agreement" shall mean any binding letter of intent,
contract or other agreement pursuant to which a Person, in return for a fee,
agrees to purchase from a third party developer real property being developed by
such developer.
"Subpartnership" means any partnership in which Borrower is the sole
general partner or managing general partner, and in which CBL Properties, Inc.
is the sole limited partner or sole other general partner. For purposes of
clarity, each Subpartnership is a Subsidiary of Borrower.
"Subsidiary" shall mean, as to any Person, any other Person, more than
fifty percent (50%) of the outstanding shares of Capital Stock, partnership
interest or other ownership interest, having ordinary voting power to elect a
majority of the board of directors or similar governing body of such other
Person (irrespective of whether or not at the time stock or other ownership
interests of any other class or classes of such other Person shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or by one or more
"Subsidiaries" of such Person, and whose financial reports are prepared on a
consolidated basis with such Person. "Wholly Owned Subsidiary" shall mean any
such Person of which all of the shares of Capital Stock or ownership interests
(other than, in the case of a corporation, directors' qualifying shares) are so
owned or controlled. For purposes of this Agreement CBL Management, Inc. shall
be deemed to be a Subsidiary of Borrower and Holdings I and Holdings II shall be
deemed to be Wholly Owned Subsidiaries of CBL Properties, Inc.
"Term Commitment" means, in respect of each Lender, the obligation of such
Lender to make Term Loan Advances to Borrower, subject to the terms and
conditions hereof, up to an aggregate principal amount not to exceed at any one
time outstanding the amount set forth opposite such Lender's name on the
signature pages hereto or as set forth in any amendment to this Agreement,
subject to adjustment, in the case of any Lender, from time to time by
assignment pursuant to Section 8.6 hereof, and "Term Commitments" shall mean the
Term Commitment of all the Lenders in an aggregate principal amount not to
exceed One Hundred Six Million Seven Hundred Twenty-Five Thousand and No/100
Dollars ($106,725,000.00).
17
"Term Loan" means the aggregate principal amount of outstanding Term Loan
Advances made by Lenders pursuant to Section 2.1(a) hereof. In no event shall
the aggregate principal amount of all Term Loan Advances exceed One Hundred Six
Million Seven Hundred Twenty-Five Thousand and No/100 Dollars ($106,725,000.00).
"Term Loan Advance" shall have the meaning given such term in Section
2.1(a) hereof. A Term Loan Advance may be either a LIBOR Advance or a Base Rate
Advance.
"Term Notes" means the term promissory notes executed by Borrower,
substantially in the form of Exhibit D hereto, payable to each of the Lenders in
an amount equal to such Lender's Term Commitment, as the same may be amended,
supplemented, modified, or restated from time to time, evidencing the obligation
of Borrower to repay the Term Loan, and all renewals, modifications and
extensions thereof, and "Term Note" means any one of the Term Notes.
"Total Commitment" means, in respect of each Lender, the obligation of such
Lender to make Advances to Borrower, subject to the terms and conditions hereof,
up to an aggregate principal amount not to exceed at any one time outstanding
the amount set forth opposite such Lender's name on the signature pages hereto
or as set forth in any amendment to this Agreement, subject to adjustment, in
the case of any Lender, from time to time by assignment pursuant to Section 8.6
hereof, and "Total Commitments" shall mean the Commitment of all the Lenders in
an aggregate principal amount not to exceed at any one time outstanding Two
Hundred Twelve Million Dollars ($212,000,000.00).
"Total Obligations" means, as of any date, the sum (without duplication) of
(a) the Indebtedness of Borrower, Holdings I, Holdings II, CBL Properties, Inc.
and their respective Subsidiaries (other than Indebtedness described in clauses
(a)(iii) and (a)(iv) of the definition thereof, and excluding Indebtedness with
respect to letters of credit if, and to the extent, such letters of credit are
issued (i) to secure obligations to municipalities to perform work in connection
with construction of projects, such exclusion under this clause (i) to be to the
extent there are reserves for such obligations under the construction loan for
the applicable project, (ii) in support of permanent loan commitments, in lieu
of a deposit, (iii) as a credit enhancement for Indebtedness incurred by an
Affiliate of Borrower, or (iv) as a credit enhancement for Indebtedness incurred
by a Person which is not an Affiliate of Borrower, such exclusion under this
clause (iv) to be to the extent of the value (as determined by Agent) of any
collateral provided by such Person to secure such letter of credit); plus (b)
the aggregate amount of Contingent Obligations of Borrower, Holdings I, Holdings
II, 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, Holdings I's, Holdings II'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, Holdings I, Holdings II, CBL Properties, Inc. or such Subsidiary is
obligated on such Indebtedness; plus (d) to the extent not included in clauses
(a) through (c) above, the amount (as determined by Agent) which would be
payable to third parties seeking specific performance (or, if such Investment
Contract provides that recovery is limited to a specified amount as liquidated
damages, the amount of such liquidated damages)
18
under Investment Contracts to which Borrower, Holdings I, Holdings II, CBL
Properties, Inc. or their Subsidiaries are a party, excluding customary deposits
under such Investment Contracts which would be forfeited upon termination
thereof, and excluding obligations under short-term Repurchase Agreements
entered into as part of a cash management program, and excluding obligations
under Investment Contracts which, as of the date such calculation is being made,
may be terminated by Borrower, Holdings I, Holdings II, CBL Properties, Inc. or
their Subsidiaries without forfeiture or payment of money or other penalty, and
excluding obligations under Standby Purchase Agreements, plus (e) to the extent
not included in clauses (a) through (d) above, Excess Standby Purchase Agreement
Obligations, plus (f) to the extent not included in clauses (a) through (d)
above, the amount payable to third parties (as determined by Agent) under
development contracts relating to property which Borrower, Holdings I, Holdings
II, CBL Properties, Inc. or any of their Subsidiaries has contracted to
purchase, plus (g) to the extent not included in clauses (a) through (d) above,
amounts payable to third parties under Forward Equity Commitments, but excluding
interests in Borrower held by third party sellers of interests in real estate
and convertible into Capital Stock of CBL Properties, Inc., plus (h) all other
amounts which would be classified as a liability on the consolidated balance
sheets of Borrower or Holdings I, Holdings II, CBL Properties, Inc., determined
in each case on a Combined basis in accordance with GAAP.
"Unconsolidated Affiliate" shall mean, in respect of any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting.
"Unsecured Indebtedness" shall mean, as to any Person, any Indebtedness of
such Person which is not secured by a Lien, but excluding trade payables and any
short-term Indebtedness incurred for the acquisition of real property, where
such short-term Indebtedness is intended to be replaced by Indebtedness secured
by a Mortgage encumbering such real property within one hundred twenty (120)
days after the date incurred.
"Weston" means Weston Management Company Limited Partnership, a Delaware
limited partnership.
1.2 Use of Defined Terms. All terms defined in this Agreement and the
Exhibits hereto shall have the same defined meanings when used in any other Loan
Document, unless the context shall require otherwise.
1.3 Accounting Terms, Calculation. (a) Except as otherwise expressly
provided herein, all accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall (unless otherwise
disclosed to the Lenders in writing at the time of delivery thereof in the
manner described in subsection (b) below) be prepared, in accordance with
generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the latest financial statements furnished to
the Lenders hereunder (which, prior to the delivery of the first financial
statements under Section 5.1 hereof, shall mean the certified financial
statements as of September 30, 2000 referred to in Section 4.4 hereof). All
calculations made for the purposes of
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determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the annual or quarterly financial statements furnished to the Lenders pursuant
to Section 5.1 hereof most recently prior to or concurrently with such
calculations (or, prior to the delivery of the first financial statements under
Section 5.1 hereof, used in the preparation of the certified financial
statements as of September 30, 2000, referred to in Section 4.4 hereof) unless
(i) either (x) Borrower shall have objected to determining such compliance on
such basis at the time of delivery of such financial statements or (y) the
Majority Lenders shall so object in writing within 30 days after delivery of
such financial statements and (ii) Borrower and the Majority Lenders have not
agreed upon amendments to the provisions of this Agreement to reflect any change
in such basis, in which event such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.1 hereof,
shall mean the financial statements referred to in Section 4.4 hereof).
(b) Borrower shall deliver to the Lenders at the same time as the delivery
of any annual or quarterly financial statement under Section 5.1 hereof (i) a
description in reasonable detail of any material variation between the
application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance with the
covenants set forth in Article 5 hereof, Borrower will not change the last day
of its fiscal year from December 31 of each year, or the last days of the first
three fiscal quarters in each of its fiscal years from March 31, June 30 and
September 30 of each year, respectively, without the prior written approval of
the Majority Lenders.
1.4 Terminology. All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and the plural shall include the
singular. Titles of Sections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement, and all references
in this Agreement to Sections, Subsections, paragraphs, clauses, subclauses,
Exhibits or Schedules shall refer to the corresponding Section, Subsection,
paragraph, clause, subclause of, Exhibit or Schedule attached to, this
Agreement, unless specific reference is made to the articles, sections or other
subdivisions of, Exhibits or Schedules to, another document or instrument. All
Exhibits and Schedules attached hereto are by reference made a part hereof. All
references to any instrument, document or agreement shall, unless the context
otherwise requires, refer to such instrument, document or agreement as the same
may be, from time to time, amended, modified, supplemented, renewed, extended,
replaced or restated. Unless otherwise stated herein, all references to a
specific time shall mean Pacific Standard Time or Pacific Daylight Time, as
applicable.
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ARTICLE 2.
THE LOAN
SECTION 2.1 Commitment to Lend. (a) Subject to the terms and conditions set
forth in this Agreement, so long as there exists no (i) Default under Sections
6.1(a), 6.1(g) or 6.1(h) hereof, (ii) other Default as to which Agent has given
Borrower notice or (iii) Event of Default, each Lender severally agrees to make
term loans (each a "Term Loan Advance" and collectively the "Term Loan
Advances") to Borrower from time to time on any Business Day or LIBOR Business
Day, as appropriate, during the period from and including the Effective Date to,
and including, November 30, 2001 in a principal amount not to exceed such
Lender's Term Commitment. Term Loan Advances hereunder made at any one time
shall be in an aggregate principal amount of not less than $200,000.00. Each
principal repayment applied to the Term Notes shall reduce the Term Commitments
on a dollar-for-dollar basis, and Term Loan Advances that have been repaid may
not be reborrowed.
(b) Subject to the terms and conditions set forth in this Agreement, so
long as there exists no (i) Default under Sections 6.1(a), 6.1(g) or 6.1(h)
hereof, (ii) other Default as to which Agent has given Borrower notice or (iii)
Event of Default, each Lender severally agrees to make revolving loans (each a
"Revolving Loan Advance" and collectively the "Revolving Loan Advances") to
Borrower from time to time on any Business Day or LIBOR Business Day, as
appropriate, during the period from and including the Effective Date to, but not
including, the Advance Termination Date in a principal amount not to exceed such
Lender's Revolving Commitment. Revolving Loan Advances hereunder made at any one
time shall be in an aggregate principal amount of not less than $200,000.00 or
any larger multiple of $25,000.00. Within the foregoing limits, Borrower may
borrow under this Section 2.1(b), prepay the Revolving Loan Advances as provided
in this Agreement, and reborrow Revolving Loan Advances at any time prior to the
Advance Termination Date under this Section 2.1(b); provided however, the
Revolving Commitments shall be reduced on a dollar-for-dollar basis by (i) any
principal repayments made pursuant to Section 2.6(c) below which are applied to
the Revolving Notes, or (ii) any principal payments (required, optional or
otherwise) applied to the Revolving Notes from and after February 1, 2005.
Borrower shall have the right, upon three (3) business days prior written notice
to Agent, to permanently reduce the unutilized portion of the Revolving
Commitments (provided that any portion of the reduction shall be in the minimum
amount of $1,000,000.00 or in any integral multiple thereof).
SECTION 2.2 Method of Borrowing.
(a) Application for Advance. Borrower shall deliver to Agent a Notice of
Borrowing not later than 10:00 A.M. at least one (1) Business Day prior to the
date such Advance is to be made, in the case of a Base Rate Advance, and at
least three (3) LIBOR Business Days prior to the date such Advance is to be
made, in the case of a LIBOR Advance. Each Notice of
21
Borrowing shall specify whether the Advance being requested is a Term Loan
Advance or a Revolving Loan Advance, and the purpose for which such Advance will
be used. Each Notice of Borrowing requesting a Revolving Loan Advance shall
include (i) a spreadsheet detailing (A) a breakdown of the amounts of such
requested Revolving Loan Advance which will be used for each Property, (B) the
amount of Revolving Loan Advances which have theretofore been made with respect
to each Property, and (C) the sum of items (A) and (B), and (ii) such other
supporting documentation as Agent may reasonably request. Prior to delivering a
Notice of Borrowing, Borrower may (without specifying whether the Advance shall
be a Base Rate Advance or a LIBOR Advance) request that Agent provide Borrower
with the most recent LIBOR Rate available to Agent. Agent shall endeavor to
provide such quoted rate to Borrower and to Lenders on the date of such request.
(b) Funding.
(i) Promptly after receipt of a Notice of Borrowing under Section 2.2(a),
Agent shall send a copy thereof to each Lender by telex or telecopy, or other
similar form of transmission. Each Lender shall deposit an amount equal to its
Pro Rata Share of the Advance requested by Borrower with Agent at its Lending
Office, in immediately available funds not later than 10:00 A.M. on the date
such Advance is to be made. Upon fulfillment of all applicable conditions set
forth herein, Agent shall make available to Borrower at Agent's Lending Office,
not later than 2:00 P.M. on the date of each Advance, the proceeds of such
amounts received by Agent. The failure of any Lender to deposit the amount
described above with Agent shall not relieve any other Lender of its obligations
hereunder to make its Pro Rata Share of the Advance.
(ii) Unless Agent shall have been notified by any Lender that such Lender
will not make available to Agent such Lender's Pro Rata Share of a proposed
Advance, Agent may in its discretion assume that such Lender has made such
Advance available to Agent in accordance with this Section 2.2(b) and Agent may,
if it chooses, in reliance upon such assumption, make such Advance available to
Borrower. If and to the extent such Lender shall not so make its Pro Rata Share
of the proposed Advance available to Agent, such Lender and Borrower severally
agree to pay or repay to Agent within two (2) days after demand the amount of
such Advance together with interest thereon, for each day from the date such
Advance is made available to Borrower until the date such amount is paid or
repaid to Agent at (A) in the case of Borrower, the interest rate applicable at
the time to other Lenders' Advances made on the date of such Advance, (B) in the
case of such Lender, the Federal Funds Rate. If such Lender shall pay to Agent
such amount, such amounts so repaid shall constitute such Lender's Advance for
purposes of this Agreement. If such Lender shall fail to pay such amount to
Agent and Borrower repays such amount to Agent, Borrower shall be entitled to
pursue any remedies it might have against such Lender under this Agreement or at
law or in equity for failure to make such Advance.
(c) Selection of Interest Period. Upon delivering a Notice of Borrowing
under Section 2.2(a) hereof, Borrower shall advise Agent as to whether the
Advance shall be (i) a LIBOR Advance, in which case Borrower shall specify the
applicable Interest Period therefor, or (ii) a Base Rate Advance. Prior to 2:00
P.M. at least three (3) LIBOR Business Days prior to the expiration of each
Interest Period with respect to a LIBOR Advance, Borrower shall give Agent
notice (a "Rate Selection Notice"), specifying whether such Advance shall, on
the last day of such Interest Period, be continued as a LIBOR Advance or
converted to a Base Rate Advance.
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With respect to any Base Rate Advance, Borrower shall have the right, on any
LIBOR Business Day, as the case may be ("Conversion Date"), to convert such Base
Rate Advance to a LIBOR Advance, by giving Agent a Rate Selection Notice of such
selection at least three (3) LIBOR Business Days prior to such Conversion Date.
Each Rate Selection Notice shall either be in writing or by telephone
immediately followed by written notice. If any Rate Selection Notice shall
specify that said Advance shall be a LIBOR Advance, such Rate Selection Notice
shall also specify the length of the succeeding Interest Period selected by
Borrower with respect to such Advance. If a Rate Selection Notice shall not have
been timely received by Agent in respect of a LIBOR Advance prior to the
expiration of the then-relevant Interest Period for such LIBOR Advance, then
Borrower shall be deemed to have elected to continue such Advance as a LIBOR
Advance, with an Interest Period of thirty (30) days. Promptly after receipt of
a Rate Selection Notice under this Section 2.2(c), Agent shall send a copy
thereof to each Lender by telex or telecopy, or similar form of transmission.
Notwithstanding anything to the contrary contained herein, (i) no more than
eight (8) Interest Periods shall be in effect at any one time with respect to
LIBOR Advances; (ii) Borrower shall have no right to select an Interest Period
of longer than one (1) month if at the time of such LIBOR Advance, to the extent
Borrower is then permitted to request LIBOR Advances, if there exists any
Default hereunder; (iii) Borrower shall have no right to request an Interest
Period (A) that extends beyond a date on which a quarterly principal payment on
the Loan is due unless, giving effect to such Interest Period, the aggregate
amount of LIBOR Advances having Interest Periods ending after such date is not
greater than the maximum principal amount of the Loan permitted to be
outstanding after such date, or (B) that extends beyond the Maturity Date; and
(iv) Borrower shall have no right to request a LIBOR Advance if (A) there then
exists any (1) Event of Default; (2) Default under Sections 6.1(a), 6.1(g) or
6.1(h) hereof, (3) other Default as to which Agent has given Borrower notice, or
(B) the interest rate applicable thereto under Section 2.4 would exceed the
Maximum Rate in effect on the first day of the Interest Period applicable to
such LIBOR Advance.
Each Notice of Borrowing and each Rate Selection Notice shall be considered
delivered only upon actual receipt thereof by the Agent, shall be irrevocable
and binding on Borrower and, in respect of any LIBOR Advance specified in such
Notice of Borrowing or Rate Selection Notice, Borrower shall indemnify Agent and
each Lender against any Consequential Loss incurred by Agent and each Lender as
a result of (i) any failure to fulfill, on or before the date specified for such
Advance, the conditions to such Advance set forth herein, or (ii) Borrower's
requesting that an Advance not be made, continued or converted on the date
specified for such Advance in the Notice of Borrowing or Rate Selection Notice.
A certificate of Agent and each Lender establishing the amount due from Borrower
according to the preceding sentence, together with a description in reasonable
detail of the manner in which such amount has been calculated, shall be
conclusive in the absence of manifest error.
SECTION 2.3 Notes. Each Lender's Pro Rata Share of the Term Loan shall be
evidenced by a Term Note payable to the order of such Lender in the principal
face amount equal to such Lender's Term Commitment. Each Lender's Pro Rata Share
of the Revolving Loan shall
23
be evidenced by a Revolving Note payable to the order of such Lender in the
principal face amount equal to such Lender's Revolving Commitment.
SECTION 2.4 Interest Rate.
(a) All Advances. The unpaid principal of each Base Rate Advance shall bear
interest from the date of such Advance to but not including the date such
Advance is either converted pursuant to Section 2.2(c) or is repaid in full at a
rate per annum that shall from day to day be equal to the lesser of (i) the Base
Rate in effect from day to day, or (ii) the Maximum Rate. The unpaid principal
of each LIBOR Advance shall bear interest from the date of such Advance to but
not including the date such Advance is either converted pursuant to Section
2.2(c) or is repaid in full at a rate per annum that shall be equal to the
lesser of (i) the LIBOR Rate for the then applicable Interest Period plus the
Applicable LIBOR Rate Margin, or (ii) the Maximum Rate. Each change in the
Applicable LIBOR Rate Margin shall become effective on the forty-fifth (45th)
day after the end of the relevant fiscal quarter.
(b) Default Rate. Upon the occurrence of an Event of Default, all principal
of, and to the extent permitted by applicable law, interest on the Obligations
shall bear interest until paid at the lesser of (i) the Base Rate from time to
time in effect plus two percent (2%), or (ii) the Maximum Rate. Such lesser rate
is referred to herein and in the Loan Documents as the "Default Rate."
(c) Late Fee. Borrower acknowledges that late payment to Agent will cause
Agent and Lenders to incur costs not contemplated by this Agreement, including,
but not limited to, processing and accounting charges. Accordingly, in the event
Borrower fails to make any payment hereunder within fifteen (15) days after the
date such payment is due and payable, Borrower shall pay to the Agent, for the
benefit of the Lenders, as liquidated damages for the purpose of defraying the
expense incident to handling such delinquent payment and not as a penalty, a
late charge equal to three percent (3%) of the amount of such payment, whether
such payment is of principal, interest, fees, expenses or other amounts due
hereunder or under the Loan Documents; provided, however, that in the event that
(i) Borrower has not been invoiced for any payment hereunder (other than
principal payments) within fifteen (15) days after the date such payment was
due, and (ii) Borrower requested in writing such invoice from Agent not later
than ten (10) days after the date such payment was due, Borrower shall not be
required to pay such late fee unless such payment remains unpaid fifteen (15)
days after Borrower's receipt of such invoice. Borrower and Agent agree that
this late charge represents a reasonable sum considering all of the
circumstances existing on the date hereof and represents a fair and reasonable
estimate of the costs that Agent and Lenders will incur by reason of late
payment. Borrower and Agent further agree that proof of actual damages would be
costly and inconvenient. Acceptance of any late charge shall not constitute a
waiver of the default with respect to the overdue installment (except to the
extent payment of such late charge is accompanied by payment of the Obligations
in full), and shall not prevent Agent from exercising any of the other rights
available hereunder or any other Loan Document. Such late charge shall be paid
without prejudice to any other rights of Agent. Payment of any late charge
hereunder may be waived upon the consent of the Majority Lenders.
24
(d) Recapture Rate. If the applicable interest rate ever exceeds the
Maximum Rate thereby causing the interest charged on the Obligations to be
limited to the Maximum Rate, then, to the extent permitted by Applicable Law,
any subsequent reductions in the applicable interest rate shall not reduce the
rate of interest charged hereunder below the Maximum Rate until the total amount
of interest accrued on the Obligations equals the amount of interest that would
have accrued thereon if the applicable contract rate had at all times been in
effect.
SECTION 2.5 Special Provisions for LIBOR Advances.
(a) Inadequacy of LIBOR Pricing. If with respect to an Interest Period for
any LIBOR Advance, Agent reasonably determines that, by reason of circumstances
occurring subsequent to the date hereof affecting the interbank eurodollar
market generally, either deposits in United States Dollars (in the applicable
amounts) are not being offered to Wells Fargo Bank in the interbank eurodollar
market for such Interest Period or that quotes of the LIBOR Rate are not
generally available, then Agent shall forthwith give notice thereof to Borrower
and Lenders, whereupon until Agent notifies Borrower that the circumstances
giving rise to such suspension no longer exist, (A) the obligation of Lenders to
make LIBOR Advances shall be suspended, and (B) Borrower shall either (x) repay
in full the then-outstanding principal amount of the LIBOR Advances, together
with accrued interest thereon on the last day of the then-current Interest
Period applicable to such LIBOR Advances, or (y) convert such LIBOR Advances to
Base Rate Advances in accordance with Section 2.2(c) of this Agreement on the
last day of the then-current Interest Period applicable to each such LIBOR
Advance.
(b) Illegality of LIBOR Advances. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Lender to make, maintain or fund its LIBOR Advances, such Lender shall forthwith
give notice thereof to Agent and Borrower. Before giving any notice pursuant to
this Section 2.5(b) such Lender shall designate a different LIBOR lending office
if such designation will avoid the need for giving such notice and will not be
otherwise disadvantageous to such Lender (as determined in good faith by such
Lender). Upon receipt of such notice, Borrower shall either (i) repay in full
the then outstanding principal amount of any of such Lender's LIBOR Advances,
together with accrued interest thereon, or (ii) convert such Lender's LIBOR
Advances to Base Rate Advances, on either (A) the last day of the then-current
Interest Period applicable to such LIBOR Advance if such Lender may lawfully
continue to maintain and fund such LIBOR Advance to such day or (B) immediately
if such Lender may not lawfully continue to fund and maintain such LIBOR Advance
to such day.
(c) Increased Costs. If, after the date hereof, any Governmental Authority,
central bank or other comparable authority, shall at any time impose, modify or
deem applicable any reserve (including, without limitation, the LIBOR Reserve
Requirement and any other reserve
25
imposed by the Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender, or shall impose on any Lender (or
its eurodollar lending office) or the interbank eurodollar market any other
condition affecting its LIBOR Advances, any of such Lender's Notes or its
obligation to make LIBOR Advances; and the result of any of the foregoing is to
increase the cost to such Lender of making or maintaining its LIBOR Advances, or
to reduce the amount of any sum received or receivable by such Lender under this
Agreement, or under any of such Lender's Notes, by an amount deemed by such
Lender to be material, then, within five (5) days after demand by such Lender,
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction with respect to such
Lender's Notes or its obligation to make or maintain LIBOR Advances. Such Lender
will use good faith and reasonable efforts to designate a different lending
office for such Lender's LIBOR Advances if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Lender, be disadvantageous to such Lender. A certificate of such
Lender claiming compensation under this Section 2.5(c) and setting forth in
reasonable detail the calculation of the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. If such
Lender demands compensation under this Section 2.5(c) in respect of its LIBOR
Advances, then Borrower may at any time, upon at least five (5) Business Days'
prior notice to such Lender, either (i) repay in full such Lender's then
outstanding LIBOR Advances, together with accrued interest thereon to the date
of prepayment or (ii) convert such Lender's LIBOR Advances to Base Rate Advances
in accordance with the provisions of this Agreement; provided, however, that
Borrower shall be liable for any Consequential Loss arising pursuant to such
actions, unless the requirement or condition giving rise to the incurred costs
is not generally applicable to lenders similar to the affected Lender, but
rather is applicable solely to such Lender.
(d) Effect on Base Rate Advances. If notice has been given pursuant to
Section 2.5(a) or Section 2.5(b) requiring LIBOR Advances of a Lender to be
repaid or converted, then unless and until Agent notifies Borrower that the
circumstances giving rise to such repayment no longer apply, all Advances shall
be Base Rate Advances. If Agent notifies Borrower that the circumstances giving
rise to such repayment no longer apply, Borrower may thereafter select Advances
from such Lender to be LIBOR Advances in accordance with Section 2.2(c) of this
Agreement.
(e) Payments Not At End of Interest Period. If Borrower makes any payment
of principal with respect to any LIBOR Advance on any day other than the last
day of an Interest Period applicable to such LIBOR Advance (other than any such
payment required by Section 2.5(b)(ii)(B) hereof), then Borrower shall reimburse
Lenders on demand the Consequential Loss incurred by Lenders as a result of the
timing of such payment. A certificate of any Lender setting forth in reasonable
detail the basis for the determination of the amount of Consequential Loss shall
be delivered to Borrower by Agent and shall, in the absence of manifest error,
be conclusive and binding. Any conversion of a LIBOR Advance to a Base Rate
Advance on any day other than the last day of the Interest Period for such LIBOR
Advance shall be deemed a payment for purposes of this Section 2.5(e).
26
(f) Notice of Claim for Compensation. Each Lender shall notify Borrower and
the Agent of any event occurring after the date of this Agreement entitling such
Lender to compensation under Section 2.5(c) within 45 days after such Lender
obtains actual knowledge thereof; provided that if any Lender fails to give such
notice to Borrower within 45 days after it obtains actual knowledge of such an
event, such Lender shall, with respect to compensation payable pursuant to such
subsection (c) in respect of any costs resulting from such event, only be
entitled to payment under subsection (c) for costs incurred from and after the
date 45 days prior to the date that such Lender gives such notice.
SECTION 2.6 Payments.
(a) Payment of Interest. Interest on the unpaid principal amount of each
Advance shall be payable monthly as it accrues on the first day of each month,
commencing with the first such day occurring after the date of the initial
Advance, and thereafter until the Loan is paid in full.
(b) Payment of Principal of Loan. The Loan shall be due and payable in full
on the Maturity Date.
(c) Mandatory Payment of Principal During Extension Terms.
(i) If the Maturity Date is extended to January 31, 2004 pursuant to
Section 2.10, Borrower shall make quarterly payments of principal in the amount
of $6,250,000.00 each, with the first such payment due on February 1, 2003, and
the subsequent payments due on May 1, 2003, August 1, 2003, and November 1,
2003;
(ii) If the Maturity Date is extended to January 31, 2005 pursuant to
Section 2.10, Borrower shall make quarterly payments of principal in the amount
of $6,250,000.00 each, with the first such payment due on February 1, 2004, and
the subsequent payments due on May 1, 2004, August 1, 2004, and November 1,
2004;
(iii) If the Maturity Date is extended to January 31, 2006 pursuant to
Section 2.10, Borrower shall make quarterly payments of principal in the amount
of $18,750,000.00 each, with the first such payment due on February 1, 2005, and
the subsequent payments due May 1, 2005, August 1, 2005, and November 1, 2005;
The quarterly principal payments required under this Section 2.6 shall be
applied first to the Term Notes, and when the Term Notes have been repaid in
full, shall be applied to the Revolving Notes.
(d) Optional Prepayments. Borrower may, upon at least one (1) Business
Day's notice to Agent, prepay the Loan in whole at any time, or from time to
time in part in an amount equal to $500,000.00 or any greater amount which would
reduce the outstanding principal balance of the Loan to a multiple of
$500,000.00, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment; provided, however, that if
27
Borrower shall prepay the principal of any LIBOR Advance on any date other than
the last day of the Interest Period applicable thereto, Borrower shall
simultaneously therewith make the payments required by Section 2.5(e) hereof.
Any optional prepayment shall be accompanied by a notice specifying whether such
prepayment is to be applied to the Term Notes or to the Revolving Notes, and, if
such notice is not given, such prepayment shall be applied first to the Term
Notes. No optional prepayment shall reduce any quarterly principal payments due
under Section 2.6(c) above.
(e) Mandatory Prepayments.
In the event the sum of the outstanding principal balance of the Term Loan
Advances made by any Lender exceeds such Lender's Term Loan Commitment, Borrower
shall, within two (2) days after demand therefor, pay to Agent for the benefit
of such Lender, the amount by which such Term Loan Advances exceeds such
Lender's Term Loan Commitment. In the event the sum of the outstanding principal
balance of the Revolving Loan Advances made by any Lender exceeds such Lender's
Revolving Loan Commitment, Borrower shall, within two (2) days after demand
therefor, pay to Agent for the benefit of such Lender, the amount by which such
Revolving Loan Advances exceeds such Lender's Revolving Loan Commitment.
(f) General Provisions as to Payments. Borrower shall make each payment of
principal of, and interest on, the Loan or fees payable hereunder, not later
than 11:00 A.M. on the date when due, without offset, deduction or counterclaim,
in Federal or other funds immediately available, at Agent's Lending Office.
Whenever any payment of principal of, or interest on, the Loan or fees (if any)
shall be due on a day which is not a Business Day, the date for payment thereof
shall be extended to the next succeeding Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(g) Application of Recoveries. Except to the extent otherwise provided in
Section 7.13 hereof, all payments made and actually received by the Agent in
respect of the Loan shall be applied in the following order of priority:
(i) to the reimbursement of any reasonable costs incurred by the Agent to
administer, enforce, collect or deal with the Loan (including payments made
pursuant to Section 7.11 or Section 7.12 hereof) (or to reimbursement of the
Lenders to the extent such costs have been paid by the Lenders) (based on Pro
Rata Shares thereof);
(ii) to the payment of all interest (including default interest) due and
payable on the Notes (based on Pro Rata Shares thereof);
(iii) to the payment of fees payable under the Loan Documents (based on Pro
Rata Shares thereof); and
(iv) to the payment of principal of the Term Notes (based on Pro Rata
Shares thereof); and
28
(v) to the payment of the Revolving Notes (based on Pro Rata Shares
thereof);
provided however, optional prepayments may, at Borrower's election, be applied
to the Revolving Notes rather than the Term Notes, as provided in Section
2.6(d).
Agent shall wire transfer to each Lender, at such Lender's bank account as
designated by such Lender to Agent in writing, its Pro Rata Share of any
payments (to the extent payable to Lender pursuant to this Section 2.6(g))
within one (1) Business Day of Agent's receipt of such payment. Agent shall pay
to the Lenders interest thereon, at the Federal Funds Rate, from the Business
Day following receipt of such funds by Agent until such funds are paid in
immediately available funds to the Lender. The Agent shall in any event not be
bound to inquire into or determine the validity, scope or priority of any
interest or entitlement of any Lender and may suspend all payments and seek
appropriate relief (including, without limitation, instructions from the
Majority Lenders or all Lenders, as applicable, or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby. In the absence of gross negligence or willful
misconduct, the Agent shall not be liable for any apportionment or distribution
of payments made by it in good faith pursuant to this Section 2.6(g), and if any
such apportionment or distribution is subsequently determined to have been made
in error, the sole recourse of any person to whom payment was due, but not made,
shall be to recover from the recipients of such payments any payment in excess
of the amount to which they are determined to have been entitled.
(h) Excess Payments. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off or
otherwise) on account of its interest in the Loan in excess of its Pro Rata
Share in the Loan, then such Lender shall forward such excess payment to Agent
and Agent shall distribute to each Lender its Pro Rata Share of such excess
payment; provided, however, that if all or any portion of such excess payment is
thereafter recovered by the Borrower or other party entitled thereto through
legal action or otherwise, each Lender shall reimburse the party returning such
excess payment in an amount equal to such Lender's Pro Rata Share of the excess
payment.
SECTION 2.7 Fees.
(a) Facility Fee. Borrower agrees to pay to the Agent, for the benefit of
the Lenders, a Facility Fee for each calendar quarter, or portion thereof,
during which any of the Total Commitments are in effect, during the period
commencing on the date hereof and continuing to the Maturity Date equal to the
average daily Total Commitments during such quarter times fifteen one-hundredths
percent (0.15%) (i.e. fifteen (15) basis points) per annum. Such Facility Fee
shall be payable quarterly in arrears, and shall be payable on the date which is
forty-five (45) days after the end of the applicable calendar quarter; provided
however, the final Facility Fee shall be due and payable on the Maturity Date.
By way of illustration, the Facility Fee for the calendar quarter ending on
March 31 shall be due and payable on May 15. Borrower acknowledges that the
Facility Fees payable hereunder are bona fide commitment fees and are intended
as reasonable compensation to Lenders for committing to make funds available to
29
Borrower as described herein and for no other purposes. For purposes of this
Section 2.7(a), the Total Commitments shall mean aggregate amount of the Total
Commitments (i.e. $212,000,000.00), minus any permanent reductions in the
Revolving Commitments pursuant to the last sentence of Section 2.1(b), minus any
principal repayments which may not be reborrowed.
(b) Extension Fee. If the Maturity Date is extended pursuant to Section
2.10, Borrower agrees to pay to Agent, for the benefit of the Lenders, an
extension fee equal to one quarter percent (0.25%) of the aggregate amount of
(i) the Term Commitments, plus (ii) the Revolving Commitments at such time,
after giving effect to the principal payment required to be made on the first
day of such Extension Term pursuant to Section 2.6(c), so long as such principal
payment is made on the Maturity Date being extended. Such fee shall be payable
on or before the Maturity Date being extended.
(c) Other Fees. Borrower shall pay Agent such fees as are provided for in
any separate fee agreement between Agent and Borrower.
SECTION 2.8 Computation of Interest and Fees. Fees and interest on the Loan
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed (including the first day but excluding the last day).
SECTION 2.9 Option to Replace Lenders. If any Lender, other than Agent,
shall:
(a) become a Defaulting Lender;
(b) become subject to the provisions of Section 2.5(b); or
(c) make any demand for payment or reimbursement pursuant to Section 2.5(c)
or Section 8.7 hereof;
then, in any of the foregoing cases, provided that (x) there does not then exist
any Default or Event of Default and (y) in the case of the circumstances
described in clauses (b) and (c), the circumstances resulting in such demand for
payment or reimbursement under Section 2.5(c) or Section 8.7 or the
applicability of Section 2.5(b) are not applicable to all Lenders, the Borrower
may either (i) designate another financial institution (such financial
institution being herein called a "Replacement Lender") acceptable to the Agent
(which acceptance will not be unreasonably withheld) and which is not an
Affiliate of the Borrower, to assume such Lender's Total Commitment hereunder
and to purchase the Loan of such Lender and such Lender's rights under this
Agreement and the Notes held by such Lender, all without recourse to or
representation or warranty (except as to title of such Lender's portion of the
Loan and as to the authority of such Lender to transfer the same) by, or expense
to, such Lender, for a purchase price equal to the outstanding principal amount
of the Loan payable to such Lender plus any accrued but unpaid interest on such
Loan and accrued but unpaid fees owing to such Lender plus any amounts payable
to such Lender under Section 2.5(c) or Section 8.7, if any, hereof, and upon
such assumption, purchase and substitution, and subject to the execution and
delivery to the
30
Agent by the Replacement Lender of documentation reasonably satisfactory to the
Agent (pursuant to which such Replacement Lender shall assume the obligations of
such original Lender under this Agreement), the Replacement Lender shall succeed
to the rights and obligations of such Lender hereunder or (ii) pay to such
Lender the outstanding principal amount of the Advances payable to such Lender
plus any accrued but unpaid interest on such Advances and accrued but unpaid
fees owing to such Lender plus any amounts payable to such Lender under Section
2.5(c) or Section 8.7 hereof. In the event that the Borrower exercises its
rights under the preceding sentence, the Lender against which such rights were
exercised shall no longer be a party hereto or have any rights or obligations
hereunder. The remedies of Borrower under this Section 2.9 shall be cumulative
of any other remedies Borrower may have against a Defaulting Lender under this
Agreement or at law or in equity.
SECTION 2.10 Extension of Maturity Date. Borrower may extend the current
Maturity Date by up to three (3) successive one-year intervals (each an
"Extension Term") by executing and delivering to Agent at least forty-five (45)
days but no more than one hundred twenty (120) days prior to the current
Maturity Date, a written notice in the form of Exhibit E (an "Extension
Notice"), each such extension being subject to satisfaction of the following:
(a) Payment by Borrower at the Maturity Date to be extended of an extension
fee pursuant to Section 2.7 hereof;
(b) The outstanding principal balance of the Loan (not taking into account
the principal repayment required to be made pursuant to Section 2.6(c) below on
the first day of the Extension Term being exercised, so long as such payment is
made on the Maturity Date being extended) does not exceed the following amounts
on the first day of the applicable Extension Term:
Extension Term Maximum Outstanding Principal Balance
-------------- -------------------------------------
First Extension Term $212,000,000.00
Second Extension Term $187,000,000.00
Third Extension Term $162,000,000.00
(c) Payment at the Maturity Date to be extended of the first quarterly
installment of principal as required by Section 2.6(c);
(d) The delivery by Borrower to Agent of an extension agreement and such
other documentation as Agent may reasonably require in connection therewith, all
of which shall be in form and substance reasonably acceptable to Agent;
(e) The delivery by Borrower to Agent of written consent to such extension
from all Guarantors;
(f) At the time of such notice and extension, there shall exist no Event of
Default hereunder or under any other Loan Documents;
31
(g) Borrower shall deliver to Agent an opinion of counsel in form and
substance reasonably acceptable to Agent, stating that, inter alia, the Loan
Documents create valid and binding obligations of the Borrower and all
Guarantors, and the transactions evidenced thereby violate no provisions of
Applicable Law;
(h) The delivery by Borrower to Agent of all financial information
reasonably requested by Agent; and
(i) Borrower shall pay, at its sole cost and expense, all costs incurred by
Agent and Lenders in connection with such extension, including reasonable legal
fees and such other professional services which Agent in good faith determines
at the time such extension is requested are necessary to satisfy any Legal
Requirement. The payment by Borrower of these costs and expenses shall not be
credited, in any way or to any extent, against any portion of the outstanding
balance of the Loan.
Notwithstanding Borrower's right to extend the Maturity Date of the Loan as set
forth hereinabove, Borrower hereby agrees that Agent and Lenders shall have no
commitment or obligation to extend the Maturity Date beyond January 31, 2006.
Agent shall forward to each Lender a copy of each Extension Notice
delivered to Agent promptly upon receipt thereof.
SECTION 2.11 Amount Limitations
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may the aggregate principal amount of all Term Loan
Advances exceed the aggregate amount of the Term Commitments (i.e.,
$106,725,000.00), nor may the aggregate principal amount of all outstanding
Revolving Loan Advances exceed the aggregate amount of the Revolving Commitments
($105,275,000.00).
ARTICLE 3.
CONDITIONS
SECTION 3.1 Effectiveness. This Agreement shall become effective as of
January 31, 2001 (the "Effective Date"), provided that all of the following
conditions shall have been satisfied:
(a) receipt by Agent of counterparts of this Agreement signed by each of
the parties hereto;
(b) receipt by Lenders of the duly executed Notes on or before the
Effective Date, complying with the provisions of Section 2.3 hereof;
32
(c) receipt by Agent of duly executed Guaranties substantially in the form
of Exhibit F hereto, from (i) each Guarantor listed on Schedule 1.1(a) hereto,
(ii) each Wholly Owned Subsidiary of Borrower which owns, directly or
indirectly, any Property, any Interest, or any beneficial interest in any Person
which owns, directly or indirectly, any Property or any Interest, (iii) any
Property Owner, 100% of the interests in which are owned, directly or
indirectly, by Borrower and/or Borrower's Affiliates, and (iv) Weston.
(d) receipt by Agent of the opinion of Borrower's counsel addressed to
Agent and each Lender and satisfactory in form and substance to Agent covering
certain legal matters addressed in Article 4 hereof and such additional matters
relating to the transactions contemplated hereby as Agent may reasonably
request;
(e) receipt by Agent of a certificate of Borrower approving the execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which Borrower is a party (when executed and delivered pursuant to
this Agreement) and the transactions contemplated therein, duly adopted by
Borrower in accordance with the terms of Borrower's Partnership Agreement;
(f) receipt by Agent of (i) certificates of existence and good standing for
Borrower issued by the State of Delaware and by each of the states wherein any
Property is located and such qualification is required; (ii) certificates of
existence and good standing for each Guarantor issued by the state of each such
Guarantor's formation and by each of the states wherein any Property is located
and such qualification is required; and (iii) certificates of existence and good
standing for each Property Owner issued by the state of each such Property
Owner's formation and the state in which the Property owned by such Property
Owner is located;
(g) receipt by Agent of a certificate of an officer of Borrower, certifying
(A) that attached thereto are true and complete copies of (i) the Second Amended
and Restated Agreement of Limited Partnership of CBL & Associates Limited
Partnership, and (ii) the Certificate of Amendment to Certificate of Limited
Partnership of CBL & Associates Limited Partnership, certified by the Secretary
of State of the State of Delaware, and, except for the foregoing, that there
have been no amendments to Borrower's certificate of partnership, partnership
agreement or other organizational documents; (B) that Holdings I is the sole
general partner of Borrower and is the sole Person with authority to authorize
the execution, delivery and performance of this Agreement and any other
documents executed in connection herewith to which Borrower is a party;
(h) receipt by Agent of a certificate of the Secretary of Holdings I, dated
as of the Effective Date, certifying (A) that attached thereto is a true and
complete copy of the Certificate of Incorporation of Holdings I and that there
have been no amendments thereto; (B) that attached thereto is a true and
complete copy of the By-laws of Holdings I and that there have been no
amendments thereto; (C) that attached thereto is a true and complete copy of
Resolutions adopted by the Board of Directors of Holdings I, authorizing the
execution and delivery on behalf of Borrower of this Agreement and any other
documents executed in connection herewith to which Borrower is a party,
authorizing the execution and delivery on behalf of Borrower as managing
33
member of any Guarantor, Property Owner, or any Person controlling any Guarantor
or Property Owner, of each of the documents executed in connection herewith to
which such Guarantor or Property Owner is a party, and authorizing the
execution, delivery and performance of each of the documents executed in
connection herewith to which Holdings I is a party; (D) as to the incumbency and
genuineness of the signatures of the officers of Holdings I executing any of the
documents executed in connection herewith to which Holdings I, Borrower or any
Guarantor or Property Owner is a party;
(i) receipt by Agent of a certificate of the Secretary of each Guarantor
(or of the Secretary of the corporate general partner or managing member of each
Guarantor), dated as of the Effective Date, certifying (A) that attached thereto
is a true and complete copy of the organizational documents of such Guarantor
and that there have been no amendments thereto; (B) that attached thereto is a
true and complete copy of the By-laws of such Guarantor and that there have been
no amendments thereto; (C) that attached thereto is a true and complete copy of
resolutions or other appropriate approvals or consents duly adopted by each
Guarantor, authorizing the execution and delivery on behalf of Guarantor of its
Guaranty and any other documents executed in connection herewith to which
Guarantor is a party; (D) as to the incumbency and genuineness of the signatures
of the officers of each Guarantor executing any of the documents executed in
connection herewith to which Guarantor is a party;
(j) receipt by Agent of a certificate of the Secretary of each Property
Owner (or of the Secretary of the corporate general partner or manager member of
each Property Owner), dated as of the Effective Date, certifying (A) that
attached thereto is a true and complete copy of the organizational documents of
such Property Owner and that there have been no amendments thereto; (B) that
attached thereto is a true and complete copy of the By-laws of such Property
Owner and that there have been no amendments thereto; (C) that attached thereto
is a true and complete copy of resolutions or other appropriate approvals or
consents duly adopted by such Property Owner, authorizing the execution and
delivery on behalf of Property Owner of any documents executed in connection
herewith to which such Property Owner is a party; (D) as to the incumbency and
genuineness of the signatures of the officers of such Property Owner executing
any of the documents executed in connection herewith to which such Property
Owner is a party.
(k) receipt by Agent of good standing certificates for CBL Properties, Inc.
and Holdings I, each dated as of a date close to the Effective Date, issued by
the Secretaries of State of Delaware and of each state wherein CBL Properties,
Inc. and Holdings I is qualified to do business and where such qualification is
required;
(l) since September 30, 2000, there shall not have occurred any material
adverse change in the business, operations (including the operation and
performance of any Property), condition (financial or otherwise), assets,
liabilities, properties or prospects of Borrower, or any event, condition, or
state of facts which would be expected materially and adversely to affect the
prospects of Borrower subsequent to consummation of the transactions
contemplated by this Agreement, in each case, as determined by Agent in its
reasonable discretion;
34
(m) there shall exist no Default or Event of Default;
(n) all of the representations and warranties made by Borrower, any
Guarantor or any Property Owner hereunder, under any of the Notes or under any
of the Loan Documents shall be true and correct in all material respects as of
the Effective Date with the same force and effect as if made on and as of such
date; and
(o) receipt by Agent of a certificate of the chief financial officer or the
chief accounting officer of Borrower certifying that Borrower is in compliance
with the requirements of Sections 5.8, 5.11 through 5.15 and 5.18 through 5.21
hereof on January 31, 2001.
This Agreement shall not become effective or be binding on any party hereto
unless all of the foregoing conditions are satisfied on or before January 31,
2001.
SECTION 3.2 Advances. The obligation of Agent and each Lender to make any
Advance is subject to the satisfaction of the following conditions:
(a) receipt by Agent of a Notice of Borrowing as required by Section 2.2,
and a compliance certificate as described in Section 5.1(c) hereof;
(b) the fact that the proposed use of proceeds of such Advance set forth in
the Notice of Borrowing is consistent with the provisions of Section 5.10
hereof;
(c) there shall exist no (A) Event of Default, (B) Default under Sections
6.1(a), 6.1(g) or 6.1(h) hereof, or (C) other Default as to which Agent has
given Borrower notice nor any event or condition which, with the making of such
Advance would constitute an Event of Default or any such Default;
(d) all of the representations and warranties made by Borrower, any
Guarantor or any Property Owner hereunder, under any of the Notes or under any
of the Loan Documents shall be true and correct in all material respects as of
the date of such Advance with the same force and effect as if made on and as of
such date, except to the extent such representations or warranties specifically
relate to an earlier date and except for changes therein occurring in the
ordinary course of business which do not otherwise constitute a Default or Event
of Default hereunder;
Acceptance by Borrower of an Advance hereunder shall be deemed to be a
representation and warranty by Borrower on the date of such Advance as to the
facts specified in clauses (b), (c) and (d) of this Section 3.2.
35
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Agent and each Lender that:
SECTION 4.1 Organization and Power. Borrower is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite partnership powers and all material governmental
certificates of authority, licenses, permits, qualifications, documentation,
consents and approvals required to own, lease and operate its properties and to
carry on its business as now conducted. Each of Holdings I and CBL Properties,
Inc. is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all requisite corporate powers
and all material governmental certificates of authority, licenses, permits,
qualifications, documentation, consents and approvals required to own, lease and
operate its properties and to carry on its business as now conducted. Each of
the Guarantors and Property Owners is a general partnership, limited
partnership, limited liability company or corporation duly organized, validly
existing and in good standing under the laws of its state of formation, and has
all requisite powers and all material governmental certificates of authority,
licenses, permits, qualifications, documentation, consents and approvals
required to own, lease and operate its properties and to carry on its business
as now conducted.
SECTION 4.2 Validity of Loan Instruments. The execution, delivery and
performance by Borrower of the Loan Documents and the execution, delivery and
performance by any Guarantor of any Loan Documents to which such Guarantor is a
party, when executed and delivered pursuant to this Agreement, (a) are within
Borrower's or such Guarantor's powers, (b) have been duly authorized by all
necessary corporate, partnership or other action, (c) require no action by or in
respect of, or filing with, any governmental body, agency or official and (d) do
not and will not contravene, or constitute a default under, any Applicable Law
or of the partnership agreement or other organizational document of Borrower or
such Guarantor or of any agreement, judgment, injunction, order, decree or other
instrument binding upon Borrower or such Guarantor or result in the creation or
imposition of any Lien on any asset of Borrower or such Guarantor. As of the
date hereof, Holdings I is the sole general partner of Borrower and possesses
the sole authority to execute and deliver the Loan Documents on behalf of
Borrower. The execution and delivery by Holdings I on behalf of Borrower of this
Agreement, the Notes and the other Loan Documents (when executed and delivered
pursuant to this Agreement) are within Holdings I's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
and will not contravene, or constitute a default under, Applicable Law or of the
Certificate of Incorporation or By-laws of Holdings I or of any agreement,
judgment, injunction, order, decree or other instrument binding upon Holdings I
or result in the creation or imposition of any Lien on any asset of Holdings I.
SECTION 4.3 Binding Effect. This Agreement constitutes a valid and binding
agreement of Borrower and the other Loan Documents (when executed and delivered
in
36
accordance with this Agreement) do and will constitute valid and binding
obligations of Borrower, enforceable in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, and other similar laws
affecting the rights of creditors generally. All Loan Documents, when executed
and delivered in accordance with this Agreement, do and will constitute valid
and binding obligations of Borrower and/or the Guarantor which is a party
thereto enforceable in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, and other similar laws affecting the rights
of creditors generally.
SECTION 4.4 Financial Information.
(a) The balance sheet of CBL Properties, Inc. dated as of September 30,
2000 and the related statements of funds from operations, stockholders' equity
and cash flows for the fiscal year then ended, certified by Borrower's Chief
Financial Officer or Controller, and filed with the Securities and Exchange
Commission, copies of which have been delivered to Agent, fairly present, in
conformity with GAAP (as modified by the rules and regulations of the Securities
and Exchange Commission and the New York Stock Exchange), the financial position
of CBL Properties, Inc. and the Borrower as of such date and their results of
operations and cash flows for such fiscal year.
(b) Between September 30, 2000 and the Effective Date, there has been no
material adverse change in the business, properties, financial position, results
of operations or prospects of CBL Properties, Inc., Holdings I, Borrower, the
Guarantors, the Property Owners, or any of their respective Subsidiaries, taken
as a whole.
SECTION 4.5 Litigation. Except as set forth in Schedule 4.5 attached
hereto, there are no actions, suits or proceedings of a material nature pending
or threatened in writing against or affecting Borrower, Holdings I, CBL
Properties, Inc., any of their respective Subsidiaries or the Properties before
any court or arbitrator or any governmental body, agency or official which (a)
could have a material adverse effect on the business, properties, financial
position, results of operations or prospects of Borrower, Holdings I, CBL
Properties, Inc. and their respective Subsidiaries other than a material adverse
effect which Borrower has fully disclosed to the Agent unless the Agent notifies
Borrower that Agent has determined that such material adverse effect is likely
to result in a future Default or Event of Default under any covenant set forth
in Section 7 hereof; (b) could have a material adverse effect on any Property;
or (c) in any manner draw into question the validity of any Loan Document; and,
subject to the provisions of Section 4.7 hereof, to the best knowledge of
Borrower, no event has occurred which will violate, be in conflict with, result
in the breach of or constitute (with due notice or lapse of time, or both) a
default of a material nature under Applicable Law or result in the creation or
imposition of any Lien, charge or encumbrance of any nature whatsoever on the
Properties.
SECTION 4.6 ERISA. Except as set forth on Schedule 4.6 hereof, neither
Borrower nor any ERISA Affiliate maintains, or participates in, and has not at
any time maintained or participated in, any ERISA Plan.
37
SECTION 4.7 Hazardous Substances. Borrower warrants, represents and agrees
as follows:
(a) Borrower has had performed reasonable investigations, studies and tests
as to any environmental contamination, liabilities or problems with respect to
the Properties, including without limitation, the storage, disposal, presence,
discharge or release of any Hazardous Substances at or with respect to the
Properties (the "Reports); a list of said Reports is attached hereto as Schedule
4.7), copies of which have been provided to the Agent prior to the date hereof,
and, except as otherwise disclosed in the Reports, to the best of Borrower's
knowledge there are no Hazardous Substances or possible violations of any
Environmental Laws.
(b) No personal or real property owned by Borrower, any of its Subsidiaries
or any Property Owner is subject to any private or governmental Lien, or to the
best of Borrower's knowledge judicial or administrative notice or action
relating to Hazardous Substances or environmental problems, impairments or
liabilities with respect to such property or the direct or indirect violation of
any Environmental Laws, in each case which could have a material adverse effect
on the business, properties, financial position, results of operations or
prospects of Borrower, Holdings I, CBL Properties, Inc. and their respective
Subsidiaries other than a material adverse effect which Borrower has fully
disclosed to the Agent unless the Agent notifies Borrower that Agent has
determined that such material adverse effect is likely to result in a future
Default or Event of Default under any covenant set forth in Section 6 hereof;
(c) Except as disclosed in the Reports, no Hazardous Substances are located
on or have been stored, processed or disposed of on or released or discharged
from (including ground water contamination) the Properties (other than small
quantities utilized in the ordinary course of business) and no above or
underground storage tanks exist on the Properties. Borrower shall not allow, and
shall not permit its Subsidiaries or any Property Owner to allow, any Hazardous
Substances to be stored, located, discharged, possessed, managed, processed or
otherwise handled on any of their properties or the Properties other than small
quantities which are utilized in the ordinary course of business of such
properties, and which are used and disposed of in a lawful manner, and shall
comply, and cause said Subsidiaries and all Property Owners to comply, with all
Environmental Laws affecting such properties or the Properties.
(d) Borrower shall immediately notify Agent should Borrower become aware of
(i) the existence of any Hazardous Substance in, on or beneath any of its
properties or the properties of its Subsidiaries or any Property Owner in
violation of any Environmental Law, or any other violation of any Environmental
Law with respect to such properties, (ii) any "release" or threatened "release"
(as defined in CERCLA and rules and regulations promulgated thereunder) of any
Hazardous Substances on or from the Properties or any other real property owned
by Borrower or any of its Subsidiaries or any Property Owner, or (iii) any Lien,
action, or notice of the nature described in subparagraph (b) above, in each
case which could have a material adverse effect on the business, properties,
financial position, results of operations or prospects of Borrower, Holdings I,
CBL Properties, Inc. and their respective Subsidiaries other than a material
adverse effect which Borrower has fully disclosed to the Agent unless the Agent
38
notifies Borrower that Agent has determined that such material adverse effect is
likely to result in a future Default or Event of Default under any covenant set
forth in Section 6 hereof. Upon the occurrence of any such event, Borrower
shall, and shall cause its Subsidiaries and the Property Owners at its or such
Subsidiary's or Property Owner's own cost and expense, take all actions as shall
be necessary or advisable for the clean-up of any such property including all
removal, containment and remedial actions to the extent required by applicable
Environmental Laws, and shall further pay or cause to be paid at no expense to
Agent and other Lenders all clean-up, administrative, and enforcement costs of
applicable government agencies asserted against such property or the owner
thereof. All costs, including, without limitation, those costs set forth above,
damages, liabilities, losses, claims, expenses (including reasonable attorneys'
fees actually incurred and disbursements) which are incurred by Agent (except to
the extent resulting from the gross negligence or willful misconduct of Agent),
without requirement of waiting for the ultimate outcome of any other proceeding,
shall be paid by Borrower to Agent as incurred within ten (10) days after notice
from Agent itemizing the amounts incurred to the date of such notice.
(e) Upon reasonable prior notice to Borrower, and subject to the rights of
tenants, Agent or its representatives may from time to time (whether before or
after the commencement of a nonjudicial or judicial proceeding) enter and
inspect the Properties for the purpose of determining the existence, location,
nature and magnitude of any past or present release or threatened release of any
Hazardous Substance into, onto, beneath or from such Properties. Except in cases
of emergency, any such inspection shall be conducted in a manner which does not
unreasonably interfere with the operation of the Properties.
All warranties and representations contained in this Section 4.7 shall be
deemed to be continuing and shall remain true and correct in all material
respects until the Obligations have been paid in full and any limitations period
expires. Notwithstanding anything to the contrary contained herein or in any of
the other Loan Documents, Borrower's agreements and Borrower's indemnification
of Lenders contained in this Section 4.7 shall survive the exercise of any
remedy by Agent under any of the Loan Documents, even if the Obligations are
satisfied in full, but only with respect to liability or costs arising as a
result of events occurring prior to the date upon which Borrower, its
Subsidiaries and the Property Owners, are divested of title to the Properties
whether voluntarily, involuntarily or by operation of law.
SECTION 4.8 Taxes and Other Payments. As of the date hereof, no United
States federal income tax returns of the "affiliated group" (as defined in the
Internal Revenue Code) of which Borrower is a member have been examined (or, if
examined, such examination has been concluded and the final adjustments, if any,
have been delivered to Agent). To the best of Borrower's knowledge, each member
of such affiliated group, including Borrower, has filed all federal, state,
county, municipal and city income and other tax returns required to have been
filed by it and has paid all taxes which have become due pursuant to such
returns or pursuant to any assessments received by it, and each member,
including Borrower, does not know of any basis for any material additional
assessment in respect of any such taxes.
39
SECTION 4.9 Not an Investment Company. None of Holdings I, Borrower, any of
its Subsidiaries or CBL Properties, Inc. is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4.10 Information. All information, reports, papers and data given
to Agent with respect to Holdings I, CBL Properties, Inc., Borrower, their
respective Subsidiaries, the Guarantors, the Property Owners or others obligated
under the terms of this Agreement or the other Loan Documents are, or at the
time of delivery will be, when taken as a whole, accurate, complete and correct
in all material respects and do not, or will not, omit any fact, the inclusion
of which is necessary to prevent the facts contained therein from being
materially misleading; all financial data have been, or when delivered will have
been, prepared in accordance with GAAP consistently applied and fully and
accurately present, or will present, in all material respects, the financial
condition of the subjects thereof as of the dates thereof; and with respect to
the financial data heretofore furnished, no material adverse change has occurred
in the financial conditions reflected therein since the dates thereof other than
a material adverse change which Borrower has fully disclosed to the Agent unless
the Agent notifies Borrower that Agent has determined that such material adverse
effect is likely to result in a future Default or Event of Default under any
covenant set forth in Section 7 hereof.
SECTION 4.11 Insurance. Schedule 4.11 sets forth a true and correct
description of the insurance coverage maintained by or on behalf of Borrower,
each Property Owner and Weston currently in effect.
SECTION 4.12 Governmental Requirements. To the best knowledge of Borrower,
no violation of any material governmental requirement exists with respect to the
Properties, and the use or anticipated use thereof complies with applicable
zoning ordinances, regulations and restrictive covenants affecting the
Properties, and all governmental requirements for such use have been satisfied,
except where such violation or noncompliance could not (a) have a material
adverse effect on the business, properties, financial position, results of
operations or prospects of Borrower, Holdings I, CBL Properties, Inc., their
respective Subsidiaries and the Property Owners other than a material adverse
effect which Borrower has fully disclosed to the Agent unless the Agent notifies
Borrower that Agent has determined that such material adverse effect is likely
to result in a future Default or Event of Default under any covenant set forth
in Section 7 hereof; (b) have a material adverse effect on the Properties taken
as a whole; or (c) in any manner draw into question the validity of any Loan
Document.
SECTION 4.13 ERISA; Plan Assets. Borrower is a not an "employee benefit
plan" as defined in Section 3(3) of ERISA and the assets of Borrower do not
constitute "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101. The
execution, delivery and performance of this Agreement, and the borrowing and
repayment of amounts thereunder, do not and will not constitute on the part of
Borrower "prohibited transactions" under ERISA or the Internal Revenue Code.
SECTION 4.14 Single Purpose Entities. Each Guarantor (except for Weston)
and each Property Owner is and will continue to be engaged only in the business
of directly or
40
indirectly owning, operating and developing one or more of the Properties, and
no Property Owner owns or has any interest in any Person. Except for transfers
of interests to Wholly Owned Subsidiaries of Borrower, no Guarantor or Property
Owner will convey any beneficial interest in itself without the prior written
consent of Agent (and, upon any such transfer, the transferee shall execute a
Guaranty pursuant to Section 3.1(c)); provided, however, that this provision
shall not prohibit transfers of interests in Property Owners by parties which
are not Affiliates of Borrower or the transfer of interests in Borrower which
are not prohibited by Section 5.9 below.
ARTICLE 5.
COVENANTS
Borrower agrees that, so long as Lenders have any commitment to make
Advances hereunder, or any of the Obligations remain unpaid, unless the Majority
Lenders otherwise agree in writing:
SECTION 5.1 Reporting Requirements. Borrower shall deliver to Agent (with
copies for each Lender):
(a) as soon as available and in any event within one hundred twenty (120)
days after the end of each fiscal year of Borrower, Combined audited annual
financial statements of Borrower, Holdings I, Holdings II and CBL Properties,
Inc., for such fiscal year, consisting of Combined balance sheet of the end of
such fiscal year and the related Combined statements of income and retained
earnings and Combined statements of cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
and accompanied by the materially unqualified opinion of Arthur Anderson & Co.
or any other nationally recognized firm of independent certified public
accountants regularly retained by Borrower and acceptable to the Majority
Lenders;
(b) as soon as available and in any event within forty five (45) days after
the end of each fiscal quarter of Borrower, Combined interim unaudited financial
statements of Borrower, Holdings I, Holdings II and CBL Properties, Inc.,
including Combined balance sheets, Combined statements of income and retained
earnings and Combined statements of cash flow, for the quarter and year-to-date
period then ended, prepared in accordance with GAAP, setting forth in
comparative form the figures for the corresponding quarter and the corresponding
portion of Borrower's previous fiscal year, all certified (subject to normal
year-end adjustments) by the chief financial officer or the chief accounting
officer of Borrower;
(c) simultaneously with the delivery the financial statements referred to
in clauses (a) and (b) above, a certificate of the chief financial officer or
the chief accounting officer of Borrower (i) setting forth in reasonable detail
the calculations required to establish whether Borrower was in compliance with
the requirements of Sections 5.8, 5.11 through 5.15 and 5.18 through 5.21 on the
date of such financial statements, (ii) setting forth the Leverage Ratio for the
fiscal quarter most recently ended, and the Applicable LIBOR Rate Margin which
shall take effect based on such Leverage Ratio, (iii) stating whether, to the
actual knowledge of such
41
officer, any Default or Event of Default exists on the date of such certificate
and, if any Default or Event of Default then exists, setting forth the details
thereof and the action which Borrower is taking or proposes to take with respect
thereto, and (iv) setting forth a schedule of all Contingent Obligations of
Borrower as of the date of such financial statements;
(d) simultaneously with the delivery of each set of financial statements
referred to in clause (a) above, a statement of the firm of independent public
accountants which reported on such statements (i) whether anything has come to
their attention in the normal course of their audit to cause them to believe
that any Default or Event of Default existed on the date of such statements and
(ii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
(e) simultaneously with the delivery of each set of financial statements
referred to in clause (b) above, a certificate of the chief financial officer or
the chief accounting officer of Borrower, certifying as to each Reserved
Construction Loan: (i) that, to the actual knowledge of such officer, no
monetary or material non-monetary default or event of default exists thereunder;
(ii) the amount currently available in the interest reserve available for the
payment of interest on such Reserved Construction Loan; (iii) an updated cash
flow projections for the project being constructed with the proceeds of such
Reserved Construction Loan, setting forth the assumptions on which such
projections are based; (iv) the outstanding principal balance of such Reserved
Construction Loan; (v) the undisbursed amount of such Reserved Construction Loan
(other than such interest reserve); and (vi) such other matters as the Agent or
the Majority Lenders may reasonably request;
(f) simultaneously with the delivery of each set of financial instruments
referred to in clause (a) above (and promptly after completion of interim
projections, if such projections are prepared more frequently than annually)
annual projected combined financial statements of Borrower, Holdings I, Holdings
II and CBL Properties, Inc., for the subsequent four quarters, consisting of
projected Combined balance sheets, projected Combined statements of income and
retained earnings, and projected Combined statements of cash flow, with
supporting schedules and such additional supporting details as Agent may
request, and certified by the chief financial officer or the chief accounting
officer of Borrower as being based, on Borrower's good faith estimates, upon
information and assumptions at the time. In the event Agent reasonably believes
that there has been a material adverse change in the financial condition of
Borrower, Holdings I, Holdings II and/or CBL Properties, Inc., or that the
actual financial performance of any such Person or Persons deviates materially
from the projections previously delivered to Agent, then at Agent's request,
Borrower shall provide interim updates of such projections;
(g) as soon as available and in any event within one hundred twenty (120)
days after the end of each fiscal year of Borrower, all financial information of
Borrower, Holdings I, Holdings II, CBL Properties, Inc., CBL Management Inc.,
and the Properties as Agent shall reasonably request and as shall be reasonably
available to Borrower, Holdings I, Holdings II, CBL Properties, Inc. or CBL
Management, Inc.;
42
(h) promptly after obtaining actual knowledge of any Default or Event of
Default, a certificate of the controller or senior vice-president in accounting
of Borrower setting forth the details thereof and the action which Borrower is
taking or proposes to take with respect thereto;
(i) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
which CBL Properties, Inc., Holdings I, Holdings II, Borrower or any of their
respective Affiliates shall have filed with the Securities and Exchange
Commission;
(j) within thirty (30) days after the consummation thereof, a description
in reasonable detail of any acquisition, merger or purchase of assets, in excess
of $100,000,000.00 in a single transaction or related series of transactions;
(k) promptly upon obtaining actual knowledge thereof, a description in
reasonable detail of any event or condition which could materially adversely
affect the business, properties, financial position, results of operations or
prospects of Borrower or which in any material manner draws into question the
validity of any Loan Document;
(l) from time to time such additional information regarding the financial
position or business of Borrower, its Affiliates or any Property as Agent may
reasonably request, to the extent such information is reasonably available to
Borrower;
(m) concurrently with, subject to the requirements of the Securities and
Exchange Commission or any securities exchange on which CBL Properties, Inc.'s
securities are traded, issuance to analysts and the media (after notification of
the New York Stock Exchange and release to an established wire service
recognized as an official disclosure source) of any press release concerning
Borrower, telecopy notice of such press release and the contents thereof.
(n) simultaneously with the delivery of the reports referred to in clause
(d) above, a list of all Persons which are (i) Wholly Owned Subsidiaries of
Borrower, and which own, directly or indirectly, any Property, any Interest, or
any beneficial interest in any Person which owns, directly or indirectly, any
Property or any Interest, or (ii) Property Owners, 100% of the interests in
which are owned, directly or indirectly, by Borrower or Borrower's Affiliates.
Any such Persons which have not theretofore executed a Guaranty in accordance
with Section 3.1(c) shall, at the request of Agent, execute such a Guaranty.
SECTION 5.2 Payment and Performance. Borrower shall pay and discharge, and
shall cause each of its Subsidiaries to pay and discharge, at or before
maturity, subject to any applicable notice and grace periods, all material
obligations and liabilities, including, without limitation, tax liabilities,
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, in accordance with GAAP, appropriate reserves for the accrual
of any of the same; and shall pay the Obligations, as and when called for in
this Agreement, and on or before the due dates thereof, subject to any
applicable notice and grace periods, and will
43
perform all of Borrower's obligations in full and on or before the dates same
are to be performed subject to any applicable notice and grace periods.
SECTION 5.3 Maintenance of Property; Insurance.
(a) Borrower shall keep, or cause to be kept (or, with respect to
Properties where Borrower does not control the Property Owner, use its
reasonable efforts to be caused to be kept), all of the Properties in good
working order and condition, ordinary wear and tear and insured casualty losses
excepted.
(b) Borrower shall obtain and maintain, or cause to be obtained and
maintained, (or, with respect to Properties where Borrower does not control the
Property Owner, use its reasonable efforts to be caused to be obtained and
maintained) insurance upon and all of the Properties, insuring against personal
injury and death, loss by fire and such other hazards, casualties and
contingencies (including business interruption insurance covering loss of rents
for a period of twelve [12] months and builder's all risk coverage) as are
normally and usually covered by extended coverage policies in effect where the
properties are located and such other risks as may be reasonably specified by
Agent, from time to time, all in such amounts and with such insurers of
recognized responsibility as are reasonably acceptable to Agent.
SECTION 5.4 Business; Existence. Neither Borrower nor any Guarantor nor any
Property Owner shall engage (or, with respect to any Property where Borrower
does not control the Property Owner, Borrower shall use its reasonable efforts
to cause the Property Owner not to engage) to any substantial extent in any line
or lines of business other than the businesses of owing, managing, leasing and
operating regional malls and retail strip shopping centers and other related
businesses to the extent incidental to the conduct of any of the foregoing
businesses. Except as otherwise expressly permitted by the terms of this
Agreement, Borrower shall, and shall cause each Guarantor and each Property
Owner (or, with respect to any Property Owner not controlled by Borrower, use
its reasonable efforts to cause such Property Owner) to, preserve and keep in
full force and effect its existence, rights, franchises and trade names.
SECTION 5.5 Payment of Impositions. Borrower shall duly pay and discharge,
or cause to be paid and discharged (or, with respect to any Property where
Borrower does not control the Property Owner, use its reasonable efforts to
cause to be paid and discharged), all Impositions not later than the due date
thereof, or the day prior to the day any fine, penalty, interest or cost may be
added thereto or imposed, or the day prior to the day any Lien may be filed, for
the nonpayment thereof (if such day is used to determine the due date of the
respective item); provided, however, that Borrower may, if, to the extent and in
the manner permitted by law, (a) pay the Impositions in installments, whether or
not interest shall accrue on the unpaid balance of such Impositions, if such
installment payment would not create or permit the filing of a Lien against the
Property, and (b) contest the payment of any Impositions in good faith and by
appropriate proceedings provided that: (i) any such contests shall be prosecuted
diligently, and (ii) no contest may be conducted and no payment may be delayed
beyond the date on which the Property could be sold for nonpayment (provided
however, that such contest may be continued beyond such date so long as Borrower
provides assurances, by bond, payment or otherwise, that
44
the Property will not be so sold). Subject to Borrower's right to contest as
provided for herein, Borrower shall submit to Agent copies of tax statements and
paid tax receipts evidencing the due and punctual payment of all real estate and
personal property taxes, charges and assessments levied upon or assessed or
charged against the Properties on or before thirty (30) days of the delinquent
date of any such taxes.
SECTION 5.6 Compliance with Legal Requirements. Borrower shall, and shall
cause each Guarantor and each Property Owner to (or, where Borrower does not
control the Property Owner, use its reasonable efforts to cause such Property
Owner to), promptly and faithfully comply with, conform to and obey all present
and future material Legal Requirements, whether or not same shall necessitate
structural changes in, improvements to, or interfere with the use or enjoyment
of the Properties; provided, however, that Borrower may contest a Legal
Requirement in good faith by appropriate proceedings; provided further, that
with respect to Legal Requirements affecting any portion of the Properties (or
any other property of Borrower) which is leased to a financially capable tenant,
if such Lease provides that compliance with such Legal Requirement is the
obligation of the tenant thereunder, Borrower shall be deemed to comply with its
obligations under this Agreement with respect to such Legal Requirement if
Borrower is continuing to exercise in good faith any remedies it may have under
said Lease to compel such tenant to comply with such Legal Requirement.
SECTION 5.7 Inspection of Property, Books and Records. Borrower will keep,
and will cause each Subsidiary, each Property Owner (or, with respect to those
Property Owners which Borrower does not control, use its reasonable efforts to
cause such Property Owner) and Weston to keep, proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities; and will permit,
and will cause each Subsidiary, each Property Owner (or, with respect to those
Property Owners which Borrower does not control, use its reasonable efforts to
cause such Property Owner) and Weston to permit, representatives of Agent and
each Lender to visit and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be desired.
SECTION 5.8 Maximum Floating Rate Debt. Borrower shall not permit the sum
of (a) Floating Rate Debt of Borrower plus (b) Floating Rate Debt of Borrower's
Unconsolidated Affiliates which is recourse to Borrower, to at any time exceed
twenty-five percent (25%) of Borrower's Gross Asset Value, unless with respect
to such excess Floating Rate Debt Borrower maintains Interest Rate Contracts
sufficient to effectively establish a maximum annual interest rate (including
adjustments for reserves and interest rate spreads) for such excess Floating
Rate Debt of not more than ten percent (10%) per annum through the Maturity
Date.
SECTION 5.9 Consolidations, Mergers and Sales of Assets. Borrower shall not
and shall not permit its Subsidiaries (or, with respect to any Subsidiary which
is a Property Owner which is not controlled by Borrower, Borrower will use its
reasonable efforts to not permit such Property Owner) to, (i) consolidate or
merge with or into any other Person (other than Borrower
45
or another Subsidiary) (ii) sell, lease or otherwise transfer, directly or
indirectly, any of its real estate properties or investments in ventures holding
such properties to any other Person, other than (a) in the ordinary course of
business (b) the sale of outparcels, (c) the redevelopment of centers,
including, the sale of sites to department stores or other anchor stores,
entering into new or modified reciprocal easement agreements and granting of
other easements (i.e. utility easements), (d) the transfer of property because
of a condemnation or deed in lieu of condemnation that do not materially impair
the use of such property for the purposes intended, (e) granting of any
Permitted Liens, (f) subject to Section 6.5, any transfer of Towne Mall or
Midland Mall pursuant to Sections 5.7 and 5.8 of the Master Contribution
Agreement, and any transfer of Columbia Mall, East Towne Mall or West Towne Mall
to third-party partners pursuant to the buy/sell provisions of the partnership
agreements of the Property Owners which own said Properties, and (g) the
conversion of Belk, Inc.'s limited partnership interest in Cary Venture Limited
Partnership to a tenancy in common.
SECTION 5.10 Use of Proceeds. (a) The proceeds of the Term Loan Advances
made under this Agreement shall be used by Borrower (i) for the acquisition of
the Interests; (ii) for the acquisition of Fee Title to Properties; and/or (iii)
for payment of closing costs in connection with the acquisition of the Interests
and Title to Properties, and the closing of the Loan.
(b) The proceeds of Revolving Loan Advances made under this Agreement shall
be used by Borrower for commercially reasonable purposes relating directly to
the Properties including, by way of illustration, leasing commissions,
development fees, tenant allowances and capital expenditures. In addition,
Borrower may use (i) up to $12,000,000.00 of Revolving Loan Advances to pay
closing costs incurred in connection with the acquisition of the Interests and
Fee Titles, (ii) up to $5,000,000.00 of Revolving Loan Advances to acquire
Interests after January 31, 2001, (iii) up to $10,000,000.00 of Revolving Loan
Advances to acquire the partnership interests or other ownership interests of
third parties in the Property Owners, (iv) up to $1,000,000.00 of Revolving Loan
Advances to acquire outparcels related to the Properties, and (v) Revolving Loan
Advances to repay the existing loan from Wells Fargo Bank, National Association
to Racine Joint Venture, to repay the existing loan from U.S. Bank National
Association to Charleston Joint Venture, and to make payments on the Term Loan
required under Section 6.5 below.
(c) No portion of the proceeds of any Advance may be used by Borrower in
any manner which would cause the Loan or the application of the proceeds thereof
to violate any of Regulations T, U or X of the Board of Governor of the Federal
Reserve System.
SECTION 5.11 Investment Concentration. (a) Borrower shall not make, and
shall not permit any of its Subsidiaries to make, any Investment in the
following items which would cause the value of such holdings of Borrower to
exceed the following percentages of Borrower's Gross Asset Value:
(i) raw land, such that the aggregate book value of all such raw land
(other than: (A) raw land subject to a ground lease under which Borrower is the
landlord and a Person not an Affiliate of Borrower is the tenant; (B) land on
which development of a project has
46
commenced; (C) land subject to a binding contract of sale under which the
Borrower or one of its Subsidiaries is the seller, and the buyer is not an
Affiliate of Borrower and (D) out-parcels held for lease or sale at projects
which are either completed or where development has commenced) exceeds ten
percent (10%) of Gross Asset Value;
(ii) developed real estate used primarily for non-retail purposes, such
that the aggregate book value of such real estate (other than the real estate
located at 6148 Lee Highway, Chattanooga, Tennessee) exceeds ten percent (10%)
of Gross Asset Value;
(iii) Capital Stock of any Person, such that the aggregate value of such
Capital Stock in Unconsolidated Affiliates other than (a) CBL Management, Inc.,
and (b) any operating Subsidiary of Borrower or of CBL Properties, Inc.,
calculated on the basis of the lower of cost or market, exceeds ten percent
(10%) of Gross Asset Value;
(iv) Mortgages, such that the aggregate principal amount secured by
Mortgages acquired by Borrower after September 26, 1996 exceeds ten percent
(10%) of Gross Asset Value;
(v) Investments made after the date hereof in partnerships, joint ventures
and other non-corporate Persons accounted for using the equity basis of
accounting (determined in accordance with GAAP), such that the aggregate
outstanding amount of such Investments (other than Investments in (A)
partnerships or limited liability companies in which (I) Borrower is the sole
general partner or sole managing member and the only limited partners or other
members are either (a) the Person from whom the real estate owned by such
Partnership was purchased, and such Person's successors and assigns or (b) a
Person operating stores which anchor the development constructed or to be
constructed by such partnership or (II) Borrower owns not less than ninety
percent (90%) of the partnership interests and has the unilateral right to make
all operational and strategic decisions, or (B) partnerships, joint ventures and
other non-corporate Persons whose financial reports are prepared on a
consolidated basis with Borrower) exceeds fifteen percent (15%) of Gross Asset
Value;
(vi) items described in subsections (i), (ii), (iii) and (v) of this
Section 5.11(a), such that the aggregate value thereof, determined in accordance
with such subsections, exceeds thirty percent (30%) of Gross Asset Value.
(b) Neither Borrower nor any of its Subsidiaries shall acquire the business
of or all or substantially all of the assets or stock of any Person, or any
division of any Person, whether through Investment, purchase of assets, merger
or otherwise; provided that Borrower or its Subsidiaries may make such an
acquisition so long as Borrower has delivered to Agent, not less than thirty
(30) days prior to the date such acquisition is consummated, (i) all information
related to such acquisition as is reasonably requested by the Agent and (ii) a
certificate, signed by the chief financial officer of Borrower, certifying that,
giving effect to such acquisition, there shall not exist any Default or Event of
Default hereunder and setting forth in reasonable detail the calculations
setting forth, on a pro forma basis giving effect to such acquisition,
Borrower's compliance with Sections 5.8, 5.11, 5.12, 5.13, 5.14, 5.15, 5.17,
5.18, 5.19, 5.20 or 5.21.
47
SECTION 5.12 Leverage Ratio. Borrower shall not at any time permit the
Leverage Ratio (i) for the period from the date hereof through and including
January 31, 2005, to exceed 0.65, or (ii) from and after February 1, 2005, to
exceed 0.60 to 1.00.
SECTION 5.13 Minimum Net Worth. Borrower shall not permit Net Worth at any
time to be less than an amount equal to $882,259,000.00 plus fifty percent (50%)
of the net proceeds or value (whether cash, property or otherwise, but excluding
the value of existing securities of Borrower or CBL Properties Inc. which are
being exchanged) received by CBL Properties, Inc., Holdings I, Holdings II,
Borrower or their Subsidiaries (but excluding any such proceeds or value
received by other Persons) from any issuance after January 31, 2001 of any
shares of Capital Stock of CBL Properties, Inc., any operating partnership units
(including, without limitation, special common units) of Borrower, or any shares
of Capital Stock or other equity interest in any Subsidiary of Borrower.
SECTION 5.14 Interest Coverage Ratio. Borrower shall not permit, as of the
last day of any fiscal quarter, the Interest Coverage Ratio (a) for the period
from the date hereof through and including January 31, 2005, to be less than
1.75 to 1.0 or (b) from and after February 1, 2005, to be less than 2.0 to 1.0.
SECTION 5.15 Debt Coverage Ratio. Borrower shall not permit, as of the last
day of any fiscal quarter of Borrower, the Debt Coverage Ratio (a) for the
period from the date hereof through and including January 31, 2005, to be less
than 1.55 to 1.0, or (b) from and after February 1, 2005, to be less than 1.75
to 1.0.
SECTION 5.16 ERISA. Borrower will operate, or will cause its ERISA
Affiliates to operate, each ERISA Plan described on Schedule 4.6, and each ERISA
Plan that either Borrower or its ERISA Affiliates may adopt, sponsor or
participate in after the Effective Date, in accordance with the terms of such
ERISA Plan and in accordance with all applicable requirements of ERISA and the
Internal Revenue Code.
SECTION 5.17 Liens. Borrower shall not create, assume or suffer to exist
and shall not permit any Subsidiary (or, with respect to any Property Owner not
controlled by Borrower, use its reasonable efforts to not permit such Property
Owner) to create, assume or suffer to exist, any Lien securing Indebtedness on
any of the Properties, except for Permitted Liens.
SECTION 5.18 Restricted Payments.
(a) Borrower shall not directly or indirectly declare or make, or incur any
liability to make, any cash or other distributions on, or in respect of, any
partnership interest in Borrower, or other payments or transfers made in respect
of the redemption, repurchase or acquisition of such partnership interests,
except for distributions in an aggregate amount not to exceed during any fiscal
year seventy-five percent (75%) of Funds from Operations for such fiscal year.
48
(b) Borrower shall not enter into any transaction with, or pay any
management or other fees to, any Affiliate, except, (i) so long as Borrower
effectively receives at least 99% of the economic benefit thereof, management or
other fees payable to CBL Management, Inc., (ii) sales of outparcels by the
Jacobs Parties to Borrower or Borrower's Affiliates pursuant to the Master
Contribution Agreement, (iii) that certain Transition Services Agreement entered
into by and among CBL Properties, Inc., Borrower and Jacobs Realty Investors
Limited Partnership pursuant to Section 4.25 of the Master Contribution
Agreement, and (iv) arms-length transactions on commercially reasonable terms,
which have been approved by Borrower's Board of Directors, (A) with CBL
Peripheral Properties with respect to outparcels, (B) with ERMC for maintenance
services, (C) with EMJ Corporation for construction services, and (D) with
Affiliates for leasing space.
SECTION 5.19 Non-Guarantors. Borrower shall not permit the Asset Value of
all Non-Guarantors which have Indebtedness (other than the Loan) which is
recourse to Borrower or CBL Properties to exceed 10% of Gross Asset Value.
SECTION 5.20 Unsecured Indebtedness. (a) Borrower shall not permit the sum
of (a) Borrower's Unsecured Indebtedness (excluding (i) the Loan and (ii)
Indebtedness under that certain $5,000,000.00 credit facility from AmSouth Bank
which is used solely for the issuance of letters of credit), plus (b) the
Unsecured Indebtedness of Borrower's Affiliates, to exceed $20,000,000.00.
(b) So long as (i) there exists no Default, (ii) the ratio of Total
Obligations to Gross Asset Value, reported in the most recent compliance
certificate delivered pursuant to Section 5.1(c), does not exceed 0.60 to 1.00,
(iii) the Interest Coverage Ratio, reported in the most recent compliance
certificate delivered pursuant to Section 5.1(c), is not less than 2.00 to 1.00,
and (iv) the Debt Coverage Ratio, reported in the most recent compliance
certificate delivered pursuant to Section 5.1(c), is not less than 1.75 to 1.00,
then for every $25,000,000.00 reduction in the outstanding principal balance of
the Term Loan and/or permanent reduction in the Revolving Commitments by virtue
of repayments which may not be reborrowed, the $20,000,000.00 limitation set
forth in Section 5.20(a) shall be increased by $10,000,000.00.
SECTION 5.21 Maximum Recourse Indebtedness. Borrower shall not permit the
sum of all Indebtedness which is recourse to Borrower and/or any Guarantor or
Guarantors to exceed 25% of Gross Asset Value.
SECTION 5.22 Negative Pledge. Except for transfers of Property permitted by
Section 5.9, Borrower shall not, and shall not permit any Guarantor or Property
Owner to, sell, exchange, assign, convey, transfer or otherwise dispose of all
or any portion of any Interest (or any interest therein), any Property (or any
interest therein) or all or any part of the beneficial interest in any Guarantor
or Property Owner; provided, however, subject to the terms of Section 6.5 below,
each Property Owner may refinance its Property on commercially reasonable terms
in the normal course of business so long as the net proceeds of such refinancing
are used in a manner and for a purpose approved in writing by Agent; provided
further, this Section 5.22 shall not prohibit the transfer of interests in
Borrower not prohibited by Section 5.9.
49
ARTICLE 6.
DEFAULTS
SECTION 6.1 Events of Default. It shall be an event of default ("Event of
Default") if one or more of the following events shall have occurred and be
continuing:
(a) Borrower shall fail, refuse or neglect to pay, in full, any installment
or portion of the Obligations as and when the same shall become due and payable,
whether at the due date thereof stipulated in this Agreement or the Notes, or at
a date fixed for prepayment, or by acceleration or otherwise, and such failure,
refusal or neglect continues for a period of fifteen (15) days after notice
thereof from Agent; provided, however, that Agent shall not be required to give
such notice more than twice during any twelve consecutive month period;
provided, further, that if such installment or portion of the Obligations
becomes due and payable as a result of Agent's accelerating the maturity of the
Obligations in accordance with the this Agreement, neither any requirement of
notice nor the ten (10) day grace/cure period for payment set forth in this
Section 6.1(a) shall apply to the accelerated due date;
(b) Borrower, any of its Subsidiaries, or any Property Owner shall fail to
observe or perform any covenant or agreement contained in Sections 5.8, 5.11,
5.12, 5.13, 5.14, 5.15, 5.17, 5.18, 5.19, 5.20 or 5.21 hereof and such failure
shall continue for ninety (90) days after the earlier of (i) the date any Senior
Officer of Borrower has actual knowledge of such failure or (ii) the date
written notice of such failure has been given to Borrower by Agent;
(c) Borrower, any of its Subsidiaries, or any Property Owner controlled by
Borrower shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those covered by clause (a) or (b) above) for thirty
(30) days after written notice thereof has been given to Borrower by Agent;
provided; however, that is such failure is curable but requires work to be
performed, acts to be done or conditions to be remedied which, by their nature,
cannot be performed, done or remedied, as the case may be, within such thirty
(30) day period, no Event Default shall be deemed to have occurred if Borrower,
its Subsidiaries or such Property Owner commence same within such thirty (30)
day period and continuously prosecute the same to completion within ninety (90)
days after such notice;
(d) Borrower, Holdings I, CBL Properties, Inc. or any of their
Subsidiaries, or any Property Owner controlled by Borrower, shall fail to
observe or perform any covenant or agreement contained in any of the Loan
Documents, or there occurs any other default under any of the Loan Documents,
and such failure or default shall continue beyond any applicable grace or cure
period;
(e) any representation, warranty or statement made by Borrower, Holdings I,
CBL Properties, Inc. or any of their Subsidiaries, or any Property Owner
controlled by Borrower, in, under or pursuant to the Loan Documents or any
affidavit or other instrument executed in
50
connection with the Loan Documents shall be false or misleading in any material
respect as of the date hereof or shall become so at any time prior to the
repayment in full of the Obligation and, except in the case of fraud, such
breach is not cured with 30 days after the earlier of (i) the date any Senior
Officer of Borrower, Holdings I or CBL Properties, Inc. has actual knowledge of
such breach or (ii) the date written notice of such breach is given to Borrower
by Agent;
(f) Borrower, Holdings I, CBL Properties, Inc., any of their Subsidiaries,
or any Property Owner shall default in the payment when due of any Indebtedness
under any Guarantee, note, indenture or other agreement relating to or
evidencing Indebtedness (other than Indebtedness which is fully non-recourse as
to Borrower, Holdings I, CBL Properties, Inc., such Subsidiary, or such Property
Owner and which has a principal balance of less than $10,000,000.00), or any
event specified in any Guarantee, note, indenture or other agreement relating to
or evidencing any such Indebtedness shall occur if the effect of such event is
to cause or to permit (giving effect to any grace or cure period applicable
thereto) the holder or holders of such Indebtedness to cause such Indebtedness
to become due, or to be prepaid in full (whether by redemption, purchase or
otherwise), prior to its stated maturity;
(g) Borrower, Holdings I, Holdings II, CBL Properties, Inc. or any of their
Significant Subsidiaries, or any Guarantor, or any Property Owner controlled by
Borrower shall (1) voluntarily be adjudicated as bankrupt or insolvent, (2) file
any petition or commence any case or proceeding under any provision or chapter
of the Federal Bankruptcy Code or any other federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (3) make
a general assignment for the benefit of its or his creditors, (4) have an order
for relief entered under the Federal Bankruptcy Code with respect to it or him,
(5) convene a meeting of its or his creditors, or any class thereof, for the
purpose of effecting a moratorium upon or extension or composition of its or his
debts, (6) admit in writing that it or he is generally not able to pay its or
his debts as they mature or generally not pay its or his debts as they mature,
or (7) become insolvent;
(h) (1) a petition is filed or any case or proceeding described in Section
6.1(g) above is commenced against Borrower, Holdings I, Holdings II, CBL
Properties, Inc. or any of their Significant Subsidiaries, or against any
Guarantor, or against any Property Owner controlled by Borrower, or against the
assets of any such persons or entities and either an order for relief is granted
or such petition and the case or proceeding initiated thereby is not dismissed
within ninety (90) days from the date of the filing, (2) an answer is filed by
Borrower, Holdings I, Holdings II, CBL Properties, Inc. or any of their
Significant Subsidiaries, or any Guarantor, or any Property Owner, admitting the
allegations of any such petition, or (3) a court of competent jurisdiction
enters an order, judgment or decree appointing, without the consent of Borrower,
Holdings I, Holdings II, CBL Properties, Inc. or any of their Significant
Subsidiaries, or any Guarantor, or any Property Owner, a custodian, trustee,
agent or receiver for it or him, or for all or any part of its or his property,
or authorizing the taking possession by a custodian, trustee, agent or receiver
of it or him, or all or any part of its or his property unless such appointment
is vacated or dismissed or such possession is terminated within ninety (90) days
from the date of such appointment or commencement of such possession, but not
later than five (5) days before the proposed sale of any assets of Borrower,
Holdings I, Holdings II, CBL Properties, Inc. or
51
such Significant Subsidiary, or such Guarantor, or such Property Owner, by such
custodian, trustee, agent or receiver, other than in the ordinary course of the
business of Borrower, Holdings I, Holdings II, CBL Properties, Inc. or such
Subsidiary or such Guarantor, or such Property Owner;
(i) one or more judgments or orders for the payment of money in excess of
$10,000,000 shall be rendered against Borrower, Holdings I, Holdings II, CBL
Properties, Inc. or any of their Significant Subsidiaries and such judgment(s)
or order(s) shall continue unbonded, unsatisfied and unstayed for a period of
sixty (60) days;
(j) the failure of Charles B. Lebovitz to remain active in the management
of Borrower, Holdings I, Holdings II, CBL Properties, Inc. and CBL Management,
Inc.; provided, however, that in the event of the death or incapacity of Charles
B. Lebovitz, no Default or Event of Default shall arise solely by virtue of this
clause (j) if either (i) Borrower, Holdings I, Holdings II, CBL Properties, Inc.
and CBL Management, Inc. shall have each retained, within 180 days of the date
of the death or incapacity of Charles B. Lebovitz, senior management having, in
the reasonable opinion of the Agent and the Majority Lenders, sufficient skill
and experience in Borrower's industry to manage Borrower competently and
efficiently; or (ii) at least two of John N. Foy, Stephen Lebovitz, Michael
Lebovitz, Ben Landress and/or Ron Fullam (with at least one of said two [2]
being either John N. Foy or Stephen Lebovitz) remain active as Senior Officers
of Borrower, CBL Properties, Inc., Holdings I, Holdings II, and CBL Management,
Inc.;
(k) (1) Borrower, Holdings I, CBL Properties, Inc. or any of their
Subsidiaries, or any Property Owner controlled by Borrower shall die, dissolve,
terminate or liquidate, or merge with or be consolidated into any other entity
(except as permitted by Section 5.9 hereof), or shall hypothecate, pledge,
mortgage or otherwise encumber all or any part of the beneficial ownership
interest in Borrower or shall attempt to do any of the same; or (2) Borrower or
any of its Subsidiaries, or any Guarantor, or any Property Owner shall amend or
modify, in a manner which would adversely affect Agent or the Lenders, its
articles of incorporation, bylaws, articles of partnership, certificate of
partnership or other charter or enabling documents, and Majority Lenders have
not given its prior written consent to such amendments or modifications;
(l) the failure of Charles B. Lebovitz, John N. Foy, Ben S. Landress,
Stephen Lebovitz, Michael Lebovitz and/or Ron Fullam to own, in the aggregate,
directly or through CBL & Associates, Inc., beneficially and of record, at least
ten percent (10%) of the shares of equity of Borrower and CBL Properties, Inc.,
on a Combined basis (without giving effect to the issuance after the date hereof
of stock of CBL Properties, Inc. at a price equal to the fair market value of
such stock on the date of such issuance); the failure of Holdings I to be the
sole general partner of Borrower; the failure of CBL Properties, Inc. to own one
hundred percent (100%) of the voting shares of Holdings I and Holdings II; or
the failure of Charles B. Lebovitz, John N. Foy, Ben S. Landress, Stephen
Lebovitz, Michael Lebovitz and/or Ron Fullam to collectively own, beneficially
and of record, with power to vote, an aggregate amount of at least fifty one
percent (51%) of the shares of voting stock of CBL Management, Inc., unless such
failure is the result of the merger of CBL Management, Inc. with and into
Borrower or CBL Properties, Inc.,
52
with Borrower or CBL Properties, Inc. as the surviving Person; provided,
however, that Charles B. Lebovitz, John N. Foy, Ben S. Landress, Stephen
Lebovitz, Michael Lebovitz and Ron Fullam shall be deemed to own any equity
interest so long as the same is owned by (i) such Person, (ii) a Subsidiary of
such Person, (iii) a trust or similar entities in which such Person and members
of such Person's family, including spouses, children, parents, siblings and
their descendants, are the sole beneficiaries of all of the interest therein.
For purposes of Item (ii) in the preceding sentence, an entity shall be
considered a Subsidiary of a Person if (x) such Person owns or controls not less
than ten percent (10%) of, and (y) such Person and members of such Person's
family (including spouses, children, parents, siblings, and their descendants),
in the aggregate, own or control 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 entity;
(m) Borrower or any Property Owner controlled by Borrower shall fail to
maintain the insurance coverage described in Schedule 4.11 as being maintained
by it at the date of this Agreement or any insurer listed as providing any of
such insurance coverage shall cease to have an A.M Best policyholders rating of
at least A-IX (with respect to liability) or A-XII (with respect to property
damage); provided that it shall not constitute an Event of Default hereunder if
Borrower shall establish deductibles with respect to any such listed insurance
not exceeding $50,000.00 per occurrence;
(n) the assets of Borrower, Holdings I, CBL Properties, Inc. or any of
their Subsidiaries at any time constitute assets, within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated thereunder,
of any ERISA Plan or Non-ERISA Plan;
(o) CBL Properties, Inc. shall (i) fail to have the shares of its Capital
Stock listed for trading on the New York Stock Exchange or the American Stock
Exchange, or the respective successors thereto; (ii) fail to remain qualified as
a REIT under the Internal Revenue Code; or (iii) amend or modify its Certificate
of Incorporation in a manner which would adversely affect Agent or the Lenders
except (A) with the prior written consent of the Majority Lenders; (B) to the
extent required in order to remain qualified as a real estate investment trust
under the Internal Revenue Code; or (C) to the extent required by Applicable
Law;
(p) Borrower shall cease to represent one hundred percent (100%) of the
book value of Holdings I and Holdings II, or the revenues of Borrower for any
fiscal year shall fail to represent one hundred percent (100%) of the total
revenues of Holdings I and Holdings II for such fiscal year; or Borrower shall
cease to represent at least ninety-five percent (95%) of the book value of CBL
Properties, Inc., or the revenues of Borrower for any fiscal year shall fail to
represent at least ninety-five percent (95%) of the total revenues of CBL
Properties, Inc.; or Holdings I and Holdings II shall cease to represent at
least ninety-five percent (95%) of the book value of CBL Properties, Inc., or
the revenues of Holdings I and Holdings II for any fiscal year shall fail to
represent at least ninety-five percent (95%) of the total revenues of CBL
Properties, Inc. for such fiscal year;
53
(q) At any time, for any reason, (i) any Loan Document ceases to be in full
force and effect in any material respect or (ii) Borrower or any Affiliate of
Borrower, or any Guarantor, or any Property Owner, seeks to repudiate its
Obligations thereunder; or
(r) Holdings I shall cease to be a Wholly Owned Subsidiary of CBL
Properties, Inc., unless such is the result of a merger of Holdings I into CBL
Properties, Inc., or merger of Holdings I into another Wholly Owned Subsidiary
of CBL Properties, Inc.
Notwithstanding the foregoing provisions of this Section 6.1, as to any
Subsidiary which is a Property Owner, any Event of Default based solely on the
occurrence of an event described in Sections 6.1(c), (d), (e), (f), (g), (h),
(i) or (k) pertaining to such Subsidiary shall nonetheless not be an Event of
Default unless such Subsidiary/Property Owner is controlled by Borrower.
SECTION 6.2 Remedies. Upon the occurrence of an Event of Default: (a) in
the case of any Event of Default specified in clauses 6.1(g) or 6.1(h) above
with respect to Borrower, Holdings I, Holdings II, CBL Properties, Inc. or any
of their respective Significant Subsidiaries, or any Guarantor, or any Property
Owner, the Total Commitments shall automatically terminate and the Obligations
(together with accrued interest thereon) shall become immediately due and
payable, without any notice to Borrower or any other act by Agent and without
presentment, demand, protest, notice of intention to accelerate or notice of
acceleration, or other notice of any kind, all of which are hereby waived by
Borrower; (b) the Agent shall, at the direction of the Majority Lenders (i) by
notice to Borrower terminate the Total Commitments, which shall thereupon
terminate, and (ii) by notice to Borrower declare the Obligations (together with
accrued interest thereon) to be, and the Obligations shall thereupon become,
immediately due and payable without presentment, demand, protest, notice of
intention to accelerate or notice of acceleration, or other notice of any kind,
all of which are hereby waived by Borrower; and (c) the Agent may exercise any
and all other rights and remedies granted to the Agent under this Agreement or
under any of the Loan Documents or pursuant to law, all of which shall be
cumulative and none of which shall be exclusive.
SECTION 6.3 Curing Defaults Concerning Properties. Lenders hereby agree
that Borrower may cure any Default resulting from (a) failure of Borrower or any
Property Owner to keep the Properties in the condition required under Section
5.3 hereof; (b) failure of Borrower or any Property Owner to pay Impositions in
the manner required under Section 5.5 hereof; (c) failure of Borrower or any
Property Owner to comply with Legal Requirements applicable to the Properties as
required under Section 5.6 hereof; (d) the existence of any Lien on any of the
Properties not permitted by Section 5.17 hereof; or (e) any representation,
warranty or statement made by any Property Owner in, under or pursuant to the
Loan Documents becoming false or misleading in any material respect; and which
relate solely to any Property, by (i) giving Agent written notice within the
applicable notice and cure period that the Property to which such Default
relates shall be removed from the list of Properties hereunder, and (ii) paying
to Agent, concurrently with the giving of such notice, an amount equal to the
sum of (A) the amount shown in Column I on Schedule 6.3 with respect to such
Property, plus (B) the amount, if any, by which the outstanding Advances (after
application of the payment required under this Section 6.3) exceeds the Total
Commitments, after reduction of the Term Commitments and the
54
Revolving Commitments as set forth in the following sentence. Concurrently with
the removal of the Property and the application of the payment required under
this Section 6.3, the Term Commitments shall be reduced by the amount shown in
Column I on Schedule 6.3 with respect to the Property being removed and the
Revolving Commitments shall be reduced by the amount shown in Column II on
Schedule 6.3 with respect to the Property being removed. Any payment under this
Section 6.3 shall be applied first to the Term Notes, and when the Term Notes
have been repaid in full, shall be applied to the Revolving Notes. No such
payment shall reduce any quarterly payments due under Section 2.6(c) above. Upon
any such removal of a Property, the owner of such Property shall thereafter not
be considered a Property Owner for purposes of this Agreement, unless such owner
is also the owner of another Property; provided, however, notwithstanding the
foregoing, any such Property Owner which has executed a Guaranty shall continue
to be a Guarantor, and its obligations under its Guaranty shall not be affected
by its removal from the list of Property Owners.
SECTION 6.4 Permitted Deficiencies. Notwithstanding anything to the
contrary set forth herein, (a) failure of Borrower or any Property Owner to keep
the Properties in the condition required under Section 5.3 hereof; (b) failure
of Borrower or any Property Owner to pay Impositions in the manner required
under Section 5.5 hereof; (c) failure of Borrower or any Property Owner to
comply with Legal Requirements applicable to the Properties as required under
Section 5.6 hereof; (d) the existence of any Lien on any of the Properties not
permitted by Section 5.17 hereof, shall not constitute a Default or Event of
Default hereunder, so long as the following conditions are satisfied:
(i) the sum (without duplication) of (A) the cost of correcting all
failures described in (a) through (c) above, as determined by Agent in its
reasonable discretion, plus (B) the amount secured by Liens described in
(d) above does not exceed, in the aggregate at any one time,
$10,000,000.00;
(ii) Such failure or Lien does not constitute a Default or Event of
Default under this Agreement or the other Loan Documents except to the
extent described in clauses (a) through (d) above; and
(iii) Borrower is proceeding to cure all such failures or Liens in a
diligent manner.
SECTION 6.5 Transfer or Refinancing of Properties. (a)(i) In the event (A)
Towne Mall, Midland Mall, Columbia Mall, East Towne Mall and/or West Towne Mall
are transferred as permitted by Sections 5.9 and 5.22, or (B) a Property is
transferred in accordance with Sections 5.3 or 5.5(b) of the Master Contribution
Agreement, or (C) Borrower otherwise transfers, sells or conveys a Property to a
third party, or (D) Borrower refinances a Property, Borrower shall give Agent
written notice thereof not less than thirty (30) days prior to the date of such
transfer or refinancing, and concurrently with such transfer (but not such
refinancing) shall pay to Agent the amount shown in Column I on Schedule 6.5
with respect to such Property (which amount shall be applied to the Term Notes),
plus the amount, if any, by which the outstanding Advances (after application of
the payment required under this Section 6.5(a))
55
exceeds the Total Commitments, after reduction of the Term Commitments and
Revolving Commitments as set forth in the following sentence (which amount shall
be applied to the Revolving Notes). Concurrently with the application of the
payment required in connection with such transfer (but not refinancing) under
this Section 6.5(a), the Term Commitments shall be reduced by the amount shown
in Column I on Schedule 6.5 with respect to the Property being transferred and
the Revolving Commitments shall be reduced by the amount shown in Column II on
Schedule 6.5 with respect to the Property being transferred.
(ii) With respect to any refinancings: (A) where there are net proceeds,
all of the net proceeds (up to the outstanding balance of the Revolving Notes)
shall be paid to Agent and applied to the Revolving Notes, and Borrower shall be
permitted to use any excess after the amount of the outstanding Revolving Notes
are repaid in full in any manner that Agent consents to, and, if Agent does not
consent to such use, said excess shall be paid to Agent and applied to the Term
Notes; and (B) where there are no net proceeds after payment of the debt being
refinanced and closing costs, or where all of the net proceeds of such
refinancing are used to repay Indebtedness secured by other Properties, then
there shall be no payments required hereunder, except as provided in Section
6.5(a)(iii) below (for the avoidance of doubt, except as provided in Section
6.5(a)(iii) below, any payments shall only be made to the extent of net proceeds
from such refinancings, taking into account proceeds used to pay down
Indebtedness secured by other Properties).
(iii) No payment under this Section 6.5(a) shall reduce any quarterly
payments due under Section 2.6(c) above. Upon any such transfer (but not
refinancing) of a Property, such Property shall no longer be considered a
Property for purposes of this Agreement, and the owner of such Property shall
thereafter not be considered a Property Owner for purposes of this Agreement
unless such owner is also the owner of another Property. Further, upon any such
transfer or refinancing, so long as no Default or Event of Default is then in
existence, Agent and the Lenders shall, at Borrower's request, release the
applicable Property Owner from any Guaranty to which it is a party (so long as
such Property Owner is not also the owner of another Property); provided,
however, in the case of the refinancing Borrower may only request such release
of the Property Owner from its Guaranty if (A) the lender providing the
replacement financing requires such release (Borrower agreeing to use its
reasonable efforts to have any such lender permit such Guaranty to remain in
effect), and (B) the Total Commitments are reduced (by virtue of any
combination, at Borrower's option, of repayment of the Term Loan [with the Term
Commitments being reduced by the amount of such payment] and/or permanent
reduction in the Revolving Commitments) in an amount equal to the sum of the
amounts in Column I and Column II on Schedule 6.3 with respect to the Property
owned by such Property Owner; provided, however, if after any such reduction in
the Revolving Commitments the amount of outstanding Advances exceeds the Total
Commitments, Borrower shall pay the amount of such excess to Agent, which
payment shall be applied to the Revolving Notes.
(b) In the event Borrower obtains financing secured by Randolph Mall or
Towne Mall, Borrower shall give Agent written notice thereof not less than
thirty (30) days prior to the date such financing is consummated, and
concurrently with such financing shall pay to Agent the amount shown in Column I
on Schedule 6.5 (or, in the case of a financing where the net proceeds
56
of such financing are used to repay Indebtedness secured by other Properties,
the amount shown in Column I on Schedule 6.3) with respect to such Property. Any
payment under this Section 6.5(b) shall be applied to the Revolving Notes and
Borrower shall be permitted to use any excess after the amount of the
outstanding Revolving Notes are repaid in full in any manner that Agent consents
to and, if Agent does not consent to such use, said excess shall be paid to the
Agent and applied to the Term Notes. No payment under this Section 6.5(b) shall
reduce any quarterly payments due under Section 2.6(c) above. Upon any such
financing of Randolph Mall or Towne Mall, and so long as no Default or Event of
Default is then in existence, Agent and the Lenders shall, at Borrower's
request, release the applicable Property Owner from any Guaranty to which it is
a party; provided, however, Borrower may only request such release of the Owner
from its Guaranty if (i) the lender providing the financing requires such
release (Borrower agreeing to use its reasonable efforts to have any such lender
permit such Guaranty to remain in effect) and (ii) the Total Commitments are
reduced (by virtue of any combination, at Borrower's option, of repayment of the
Term Loan [with the Term Commitments being reduced by the amount of any such
payment] and/or permanent reduction of the Revolving Commitments) in an amount
equal to (x) $6,890,000.00, with respect to Randolph Mall, or (y) $2,825,000.00,
with respect to Towne Mall; provided, however, if after any such reduction in
the Revolving Commitments the amount of outstanding Advances exceeds the Total
Commitments, Borrower shall pay the amount of such excess to Agent, which
payment shall be applied to the Revolving Notes.
ARTICLE 7.
THE AGENT
SECTION 7.1 Appointment and Authorization. Each Lender irrevocably appoints
and authorizes Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are granted to Agent by the terms
thereof, together with all such powers as are reasonably incidental thereto.
Borrower shall be entitled to rely upon a written notice or written response
from Agent as being made pursuant to the requisite concurrence or consent of the
Lenders necessary to take such action without investigation or otherwise
contacting the Lenders hereunder.
SECTION 7.2 Agent and Affiliates. Agent shall have the same rights and
powers under the Loan Documents as any other Lender and may exercise or refrain
from exercising the same as though it were not Agent, and Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with Borrower or Affiliate of Borrower as if it were not Agent
hereunder.
SECTION 7.3 Action by Agent. The Agent (which term as used in this sentence
and in Section 7.7 hereof and the first sentence of Section 7.8 hereof shall
include reference to its Affiliates and its own and its Affiliates'
shareholders, officers, directors, employees and agents): (a) shall have no
duties or responsibilities except those expressly set forth in this Agreement,
and shall not by reason of this Agreement be a trustee for any Lender; (b) shall
not be responsible to the Lenders for any recitals, statements, representations
or warranties contained in this
57
Agreement or any of the other Loan Documents, or in any certificate or other
instrument, document or agreement referred to or provided for in, or received by
any of them under, this Agreement or any of the other Loan Documents, or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, any Note or any of the other Loan Documents or for any failure
by Borrower or any other Person to perform any of its obligations hereunder or
thereunder; (c) subject to Section 7.6 hereof, shall not be required to initiate
or conduct any litigation or collection proceedings hereunder; (d) shall have no
liability to any Lender for any determination made in good faith by the Agent
that such Lender is in default of its obligations hereunder; and (e) shall not
be responsible for any action taken or omitted to be taken by it hereunder or
under any other agreement, document or instrument referred to or provided for
herein or in connection herewith, except for its own gross negligence or willful
misconduct. The Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer complying with the terms and conditions of Section 8.6
hereof.
SECTION 7.4 Consultation with Experts. Agent may consult with legal counsel
(who may be counsel for Borrower) , independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 7.5 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, facsimile, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons. As to any matters not expressly provided for by this Agreement, the
Agent shall in all cases be fully protected in acting, or in refraining from
acting, and no Lender shall have any right of action against Agent as a result
of Agent acting or refraining from acting, hereunder or under the other Loan
Documents in accordance with instructions signed by the Majority Lenders (or,
where applicable, all Lenders) and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders;
provided, however, the Agent shall not be required to take any action which (a)
the Agent reasonably believes will expose it to personal liability unless the
Agent receives an indemnification satisfactory to it from the Lenders with
respect to such action or (b) is contrary to this Agreement, the Notes, the
other Loan Documents or Applicable Law.
SECTION 7.6 Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default (other than the
non-payment of principal of or interest on Loans or of fees) unless the Agent
has received notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default." In the
event of any such non-payment or in the event the Agent receives such a notice
of the occurrence of a Default or Event of Default, the Agent shall give, and to
the extent the Agent otherwise has actual knowledge of a Default or Event of
Default the Agent shall use best efforts to give, prompt notice thereof to the
Lenders.
SECTION 7.7 Indemnification. Each Lender shall, in accordance with its Pro
Rata Share, promptly (and in all events within ten [10] days after demand
therefor) reimburse (to the
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extent not reimbursed by Borrower) Agent for, and indemnify Agent against, any
third- party costs (including, without limitation, costs described in Section
7.12(b)), expense (including attorneys' fees and disbursements provided that, if
outside counsel is not used by the Agent, the allocated cost of in-house counsel
of Agent shall be deemed to be a third-party cost and expense), claim, demand,
action, loss or liability (except such as result from Agent's gross negligence
or willful misconduct) that Agent may pay, suffer or incur in connection with
the Loan Documents, or any action taken or omitted by Agent. The obligations of
Lenders under this Section 7.7 shall survive the payment in full of all
Obligations and the termination of this Agreement. In the event that after
payment and distribution of any amount by Agent to Lenders, any Lender or third
party, including Borrower, any creditor of Borrower or a trustee in bankruptcy,
recovers from Agent any amount found to have been wrongfully paid to Agent or
disbursed by Agent to Lenders, then Lenders, in proportion to their respective
Pro Rata Share, shall reimburse Agent for all such amounts. Notwithstanding the
foregoing, Agent shall not be obligated to advance any amounts hereunder (other
than Agent's Pro Rata Share of each Advance) and may require the deposit with
Agent by each Lender of its Pro Rata Share of any material expenditures
anticipated by Agent before they are incurred or made payable.
SECTION 7.8 Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under the Loan Documents (including without limitation
decisions with respect to the matters described in clauses (i) through (ix) of
Section 8.5(a) of this Agreement).
SECTION 7.9 Failure to Act. Except for action expressly required of the
Agent hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification obligations under Section
7.7 hereof against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.
SECTION 7.10 Resignation or Removal of Agent; Co-Agent.
(a) Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving notice thereof to the
Lenders and the Borrower. For good cause, the Majority Lenders may remove Agent
at any time by giving at least thirty (30) days prior written notice to Agent,
Borrower and the other Lenders. For purposes of this Section 7.10, in
determining whether the Majority Lenders have approved the removal of the Agent,
the Agent, in its capacity as a Lender, will be disregarded and excluded and the
Pro Rata Shares of the remaining Lenders shall be redetermined, for voting
purposes only, to exclude the Pro Rata Shares of the Agent. Such resignation or
removal shall take effect upon the acceptance of appointment as Agent by the
successor Agent. Upon any such resignation or removal, the Majority Lenders
shall have the right to appoint a successor Agent consented to by Borrower,
which consent shall not be unreasonably withheld. If no successor Agent shall
have
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been so appointed by the Majority Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Agent's giving of notice
of resignation or the Majority Lender's removal of the retiring Agent, the
retiring Agent may, on behalf of the Lenders appoint a successor Agent consented
to by Borrower, which consent shall not be unreasonably withheld. Any successor
Agent must be a bank (i) the senior debt obligations of which (or such bank's
parent's senior debt obligations) are rated not less than Baa-1 by Moody's
Investors Services, Inc. or a comparable rating by a rating agency acceptable to
the Majority Lenders and (ii) which has total assets in excess of
$10,000,000,000.00. Upon the acceptance of any appointment as Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article 7 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
Upon the acceptance of any appointment as Agent, such successor Agent shall
confirm to Borrower, in writing, the agency fees to be paid to such successor
Agent pursuant to Section 2.7(b).
(b) In the event that Applicable Law imposes any restrictions on the
identity of an agent such as the Agent or requires the appointment of any
co-agent in connection therewith, the Agent may, in its discretion, for the
purpose of complying with such restrictions, appoint one or more co-agents
hereunder consented to by Borrower, which consent shall not be unreasonably
withheld by Borrower. Any such Co-Agent(s) shall have the same rights, powers,
privileges and obligations as the Agent and shall be subject to and entitled to
the benefits of all provisions of this Agreement and the Loan Documents relative
to the Agent but the appointment of a co-agent shall not increase the obligation
of Borrower hereunder. In addition to any rights of the Majority Lenders set
forth in Section 7.10(a) above, any such Co-Agent may be removed at any time by
the Agent.
SECTION 7.11 Consent and Approvals.
(a) Each Lender has authorized and directed, and hereby authorizes and
directs, Agent to enter into the Loan Documents other than this Agreement for
the benefit of Lenders. Each Lender agrees that any action taken by Agent or the
Majority Lenders (or, where required by the express terms of this Agreement, a
greater proportion of Lenders) in accordance with the provisions of this
Agreement or any Loan Document, and the exercise by Agent or the Majority
Lenders (or, where so required, such greater proportion), of the powers set
forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all Lenders. Without
limiting the generality of the foregoing, the Agent shall have the sole and
exclusive right and authority to:
(i) act as the disbursing and collecting agent for the Lenders with respect
to all payments and collections arising in connection with this Agreement and
the Loan Documents;
(ii) execute and deliver each Loan Document (other than this Agreement) and
accept delivery of each such agreement delivered by the Borrower, any of its
Subsidiaries, or any Property Owner;
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(iii) act as collateral agent for the Lenders for all other purposes stated
therein;
(iv) deliver notices, including notices of default, hereunder and under the
other Loan Documents; and
(v) except as may be otherwise specifically restricted by the terms of this
Agreement or any other Loan Document, exercise all remedies given to the Agent
or the Lenders under the Loan Documents, Applicable Law or otherwise.
(b) Each of the following shall require the approval or consent of the
Majority Lenders:
(i) approval of any material amendment of the organizational documents of
Borrower, Holdings I, Holdings II, CBL Properties, Inc., their respective
Subsidiaries or any Property Owner prohibited by Section 6.1 hereof;
(ii) approval of certain changes in executive officers otherwise prohibited
by Section 6.1 hereof;
(iii) acceleration of the Obligations following an Event of Default or
rescission of such acceleration under Section 6.2(b) hereof;
(iv) approval of the exercise of rights and remedies under the Loan
Documents following an Event of Default;
(v) removal of Agent and appointment of a successor under Section 7.10
hereof; and
(vi) except as otherwise provided in Section 8.5, approval of any
amendment, modification or termination of this Agreement.
(c) In addition to the required consents or approvals referred to in
Section 7.11(b) above, Agent may at any time request instructions from the
Majority Lenders with respect to any actions or approvals which, by the terms of
this Agreement or of any of the Loan Documents, Agent is permitted or required
to take or to grant without instructions from any Lenders, and if such
instructions are promptly requested, Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from taking any
action or withholding any approval under any of the Loan Documents until it
shall have received such instructions from the Majority Lenders. Agent shall
promptly notify each Lender at any time that the Majority Lenders have
instructed Agent to act or refrain from acting pursuant hereto.
(d) All communications from Agent to Lenders requesting Lenders
determination, consent, approval or disapproval (i) shall be given in the form
of a written notice to each Lender,
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(ii) shall be accompanied by a description of the matter or thing as to which
such determination, approval, consent or disapproval is requested, or shall
advise each Lender where such matter or thing may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall include, if
reasonably requested by a Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
Agent by Borrower in respect of the matter or issue to be resolved, and (iv)
shall include Agent's recommended course of action or determination in respect
thereof. Each Lender shall reply promptly, but in any event within ten (10)
Business Days after receipt of the request therefor by Agent (the "Lender Reply
Period"). Unless a Lender shall give written notice to Agent that it objects to
the recommendation or determination of Agent (together with a written
explanation of the reasons behind such objection) within the Lender Reply
Period, such Lender shall be deemed to have approved of or consented to such
recommendation or determination. With respect to decisions requiring the
approval of Majority Lenders or all Lenders, Agent shall submit its
recommendation or determination for approval of or consent to such
recommendation or determination to all Lenders and upon receiving the required
approval or consent shall follow the course of action or determination
recommended to Lenders by Agent or such other course of action recommended by
Majority Lenders or all Lenders, as the case may be, and each non-responding
Lender shall be deemed to have concurred with such recommended course of action.
SECTION 7.12 Agency Provisions Relating to Properties; Expenses.
(a) Except as provided in this Agreement, Agent shall have no obligation
whatsoever to any Lender or to any other Person to assure that the Properties
are cared for, protected or insured or are encumbered, or to exercise at all or
in any particular manner or under any duty of care, disclosure or fidelity, or
to continue exercising, any of the rights, authorities and powers granted or
available to the Agent in this Agreement or in any of the Loan Documents, it
being understood and agreed that in respect of the Properties, or in any act,
omission or event related thereto, the Agent may act in any manner it may deem
appropriate, in its sole discretion.
(b) Should Agent commence any proceeding or in any way seek to enforce its
rights or remedies under the Loan Documents, each Lender, upon demand therefor
from time to time, shall contribute its share (based on its Pro Rata Share) of
the reasonable costs and/or expenses of any such enforcement or acquisition,
including, but not limited to, fees of receivers or trustees, court costs, and
fees and expenses of attorneys to the extent not otherwise reimbursed by
Borrower. Without limiting the generality of the foregoing, each Lender shall
contribute its share (based on its Pro Rata Share) of all reasonable costs and
expenses incurred by Agent (including reasonable attorneys' fees and expenses)
if Agent employs counsel for advice or other representation (whether or not any
suit has been or shall be filed) with respect to any of the Loan Documents, or
the attempt to enforce any rights of Agent or any of Borrower's or any other
party's obligations under any of the Loan Documents, but not with respect to any
dispute between Agent and any other Lender(s). Any loss of principal and
interest resulting from any Event of Default shall be shared by Lenders in
accordance with their respective Pro Rata Shares. It is understood and agreed
that in the event Agent determines it is necessary to engage counsel for Lenders
from and after the occurrence of an Event of Default, said counsel shall be
selected
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by Agent and written notice of such selection, together with a copy of such
counsel's engagement letter and fee estimate, shall be delivered to Lenders.
SECTION 7.13 Defaulting Lenders.
(a) If a Lender fails or refuses to fund its Pro Rata Share of an Advance
hereunder and each other Lender has funded its Pro Rata Share of such Advance,
Borrower may request that the Agent deliver to such non-funding Lender a notice
stating that unless such Lender funds such Advance within five (5) days of its
receipt of such notice, such Lender shall be a Defaulting Lender. The Agent,
upon receipt of such request, shall send such notice if either (i) the Agent
determines that such Lender, by not funding its Pro Rata Share of such Advance,
has defaulted in its obligations hereunder or (ii) Borrower has obtained a
judgment from a court of competent jurisdiction that such non-funding Lender has
breached it obligations to Borrower by failing to fund its Pro Rata Share of
such Advance. Any determination made in good faith by the Agent pursuant to
clause (i) above shall be conclusive and binding on Borrower and such Lender
unless and until a judgment to contrary is obtained from a court of competent
jurisdiction.
(b) Once a Lender becomes a Defaulting Lender, the Agent shall notify the
other Lenders of such occurrence, whereupon the Pro Rata Share of each of the
other Lenders shall be recalculated to exclude the Pro Rata Share of such
Defaulting Lender.
(c) Notwithstanding any provision hereof to the contrary, until such time
as a Defaulting Lender has funded its Pro Rata Share of any Advance which was
previously a Non Pro Rata Advance, or such Lender is determined by a court of
competent jurisdiction not to have defaulted in it obligations hereunder or all
other Lenders have received payment in full (whether by repayment or prepayment)
of the principal and interest due in respect of such Non Pro Rata Advance, all
of the Obligations owing to such Defaulting Lender hereunder shall be
subordinated in right of payment, as provided in the following sentence, to the
prior payment in full of all principal, interest and fees in respect of all Non
Pro Rata Advances in which the Defaulting Lender has not funded its Pro Rata
Share (such principal, interest and fees being referred to as "Senior Loans").
All amounts paid by Borrower and otherwise due to be applied to the Obligations
owing to the Defaulting Lender pursuant to the terms hereof shall be distributed
by Agent to the other Lenders in accordance with their respective Pro Rata
Shares (recalculated for purposes hereof to exclude the Defaulting Lender's
Total Commitment), until all Senior Loans have been paid in full. This provision
governs only the relationship among Agent, each Defaulting Lender, and the other
Lenders; nothing hereunder shall limit the obligation of Borrower to repay all
Advances in accordance with the terms of this Agreement. The provisions of this
section shall apply and be effective regardless of whether an Event of Default
occurs and is then continuing, and notwithstanding (i) any other provision of
this Agreement to the contrary, (ii) any instruction of Borrower as to its
desired application of payments or (iii) the suspension of such Defaulting
Lender's right to vote on matters which are subject to the consent or approval
of Majority Lenders or all Lenders.
(d) Agent shall be entitled to (i) collect interest from such Lender for
the period from the date on which the payment was due until the date on which
the payment is made at the
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Federal Funds Rate for each day during such period, (ii) withhold or setoff, and
to apply to the payment of the defaulted amount and any related interest, any
amounts to be paid to such Defaulting Lender under this Agreement, and (iii)
bring an action or suit against such Defaulting Lender in a court of competent
jurisdiction to recover the defaulted amount and any related interest. In
addition, the Defaulting Lender shall indemnify, defend and hold Agent and each
of the other Lenders harmless from and against any and all costs, expenses and
liabilities plus interest thereon at the Default Rate set forth in the Loan
Documents for funds advanced by Agent or any other Lender on account of the
Defaulting Lender which they may sustain or incur by reason of or as a direct
consequence of the Defaulting Lender's failure or refusal to abide by its
obligations under this Agreement.
(e) So long as any Lender is a Defaulting Lender, (i) the Defaulting
Lender's outstanding portion of the Loan shall accrue interest during each month
at a rate equal to the LIBOR Rate applicable to an Interest Period having a
duration one-month and commencing on the first LIBOR Business Day of such month;
and (ii) at the request of Borrower, all interest and fees payable to such
Defaulting Lender shall be placed by the Agent in a cash collateral account and
held as security for the Obligations owed to all of the Lenders and such
interest and fees shall not be paid to such Defaulting Lender until such time as
either (A) the other Lenders have been paid in full or (B) such Lender is no
longer a Defaulting Lender; provided, however, if such Lender has been found to
be a Defaulting Lender pursuant to a judgment of a court of competent
jurisdiction that such non-funding Lender has breached its funding obligations
hereunder and such judgment is not a final, non-appealable judgment, then until
Borrower obtains such a final, non-appealable judgment that such non-funding
Lender is in breach of its funding obligations hereunder, Borrower shall
continue to pay interest on the Defaulting Lender's portion of the outstanding
Loan at the rate applicable to the other Lenders' portion of the outstanding
Loan and the Agent shall, at the request of Borrower, deposit the excess of such
interest over the interest payable at the rate set forth in clause (i) above
into a cash collateral account, held as security for the Obligations owed to all
of the Lenders and paid (x) to the Borrower, if such non-funding Lender is
determined, in a final, non-appealable judgment from a court of competent
jurisdiction to have breached its funding obligations hereunder, or (y) to such
non-funding Lender, if such non-funding Lender is determined, in a final,
non-appealable judgment from a court of competent jurisdiction not to have
breached its funding obligations hereunder.
(f) A Defaulting Lender shall cease to be a Defaulting Lender upon (i) the
payment by such Defaulting Lender to the Agent, for the benefit of the Agent and
the Lenders, as appropriate, of its Pro Rata Share (determined without giving
affect to any recalculation thereof as a result of such Lender being a
Defaulting Lender) of an amount equal to the amount of each Advance which was
previously a Non Pro Rata Advance plus all other amounts required to be paid or
funded by Lenders hereunder since the date such Lender became a Defaulting
Lender and for which such Defaulting Lender has not paid or funded its Pro Rata
Share, (ii) any judgment that such non-funding Lender has breached its
obligations to Borrower in respect of such Non Pro Rata Advance is reversed or
vacated for any reason; or (iii) the Agent and all other Lenders receiving
payment in full (whether by repayment or prepayment) of the principal and
interest due in respect of all such Non Pro Rata Advances and all such other
amounts.
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(g) In the event a non-funding Lender is designated as a Defaulting Lender
as a result of a judgment that such non-funding Lender has breached its
obligations to Borrower in respect of such Non Pro Rata Advance and such
judgment is subsequently reversed for any reason, then (i) such Lender shall no
longer be a Defaulting Lender, (ii) the Pro Rata Share of each Lender shall be
adjusted to include the Total Commitment of such Lender, (iii) such Lender shall
be entitled to immediate payment of any and all amounts owed to it and held in
any cash collateral account established pursuant to Section 7.13; (iv) the
Borrower shall, within three (3) Business Days, repay to the Agent, for the
benefit of the other Lenders, the aggregate amount by which the outstanding
Advances made by each Lender exceeds such Lender's Pro Rata Share of the Loan
(giving effect to the recomputation of Pro Rata Share pursuant to clause (ii)
above); and (v) such Lender shall have the right to recover from Borrower any
damages that such Lender may have suffered as a result of having been
categorized as "Defaulting Lender" and (vi) such Lender shall have such other
remedies against Borrower as it may have under this Agreement, at law or in
equity.
SECTION 7.14 Borrower Not a Beneficiary. The provisions of this Article 7
are solely for the benefit of the Agent and the Lenders and neither the Borrower
nor any Affiliate of the Borrower shall have any right to rely on or enforce any
of the provisions hereof; provided, however, that the Borrower shall have the
rights granted to it in subsections (a), (b), (e) and (f) of Section 7.13
hereof. In performing its functions and duties under this Agreement, the Agent
shall act solely as the agent of the Lenders and does not assume and shall not
be deemed to have assumed any obligations or relationship of agency, trustee or
fiduciary with or for the Borrower or any Affiliate of the Borrower. Lenders
represent to Borrower that, other than letter agreements relating to the payment
of fees and letters committing to participate as a Lender, the Loan Documents
contain as of the date hereof all of the written agreements establishing the
relationships between the Agent and the Lenders and among the Lenders in
connection with the Loan.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 Notices. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as properly given if mailed by first-class United States mail,
postage prepaid, registered or certified with return receipt requested, if sent
by national overnight courier providing documentation of receipt, if delivered
in person to the intended addressee or if sent by prepaid telegram, telex or
telecopy, with a copy of such telegram, telex or telecopy sent by mail,
overnight courier or personal delivery as aforesaid. Notice so mailed shall be
effective three (3) Business Days after its deposit (provided however, that any
Notice of Borrowing or Rate Selection Notice so mailed shall be effective only
if and when received by Agent). Notice given in any other manner shall be
effective only if and when received by the addressee. For purposes of notice,
the addresses of the parties shall be as set forth on the signature pages
hereto; provided, however, that any party shall have the right to change its
address for notice hereunder to any other location within the
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continental United States by the giving of thirty (30) days' notice to the other
parties in the manner set forth hereinabove.
SECTION 8.2 No Waiver. Any failure by Agent or any Lender to insist, or any
election by Agent or any Lender not to insist, upon strict performance by
Borrower or its Affiliates of any of the terms, provisions or conditions of the
Loan Documents shall not be deemed to be a waiver of same or of any other term,
provision or condition thereof, and Agent and the Lenders shall have the right
at any time or times thereafter to insist upon strict performance by Borrower
and its Affiliates of any and all such terms, provisions and conditions. No
delay or omission by Agent or any Lender to exercise any right, power or remedy
accruing upon any Default or Event of Default shall exhaust or impair any such
right, power or remedy or shall be construed to be a waiver of any such Default
or Event of Default, or acquiescence therein, and every right, power and remedy
given by this Agreement to Agent or any Lender may be exercised from time to
time and as often as may be deemed expedient by Agent or any Lender. No consent
or waiver, expressed or implied, by Agent or any Lender to or of any Default or
Event of Default by Borrower or its Affiliates in the performance of the
Obligations of Borrower and its Affiliates hereunder or to any other Event of
Default shall be deemed or construed to be a consent or waiver to or of any
other Default or Event of Default in the performance of the same or any other
Obligations of Borrower or its Affiliates hereunder. Failure on the part of
Agent or any Lender to complain of any act or failure to act or to declare an
Event of Default, irrespective of how long such failure continues, shall not
constitute a waiver by Agent or any such Lender of its rights hereunder or
impair any rights, powers, or remedies of Agent or any Lender hereunder.
SECTION 8.3 Expenses; Documentary Taxes; Withholding Taxes;
Indemnification.
(a) Borrower agrees to reimburse the Agent for all of the Agent's
reasonable costs and expenses incurred in connection with the development,
preparation, execution, delivery, modification or amendment of this Agreement,
the Notes and the Loan Documents, including reasonable audit costs, appraisal
costs, the cost of searches, filings and filing fees, taxes and the fees and
disbursements of Agent's attorneys, Messrs. Troutman Sanders and any counsel
retained by them. Borrower further agrees to reimburse the Agent and each Lender
for all reasonable third-party costs and expenses incurred by the Agent or such
Lender (including attorneys' fees and disbursements provided that, if outside
counsel is not used by the Agent, the allocated cost of in-house counsel of
Agent shall be deemed to be a third-party cost and expense) from and after the
occurrence of a Default to: (i) commence, defend or intervene in any court
proceeding; (ii) file a petition, complaint, answer, motion or other pleading,
or to take any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) relating to the Properties or this Agreement, the
Notes or any of the Loan Documents; and (iii) enforce any of the Agent's and the
Lenders' rights to collect any of the Obligations.
(b) Borrower also agrees to pay, and to save harmless the Agent and the
Lenders from any delay in paying, any intangibles, documentary stamp and other
taxes (but excluding Excluded Taxes), if any, which may be payable in connection
with the execution and delivery of
66
this Agreement, the Notes or any of the Loan Documents, or in any modification
hereof or thereof.
(c) Each Lender organized under the laws of a jurisdiction other than the
United States of America agrees to deliver to the Borrower and the Agent such
certificates, documents or other evidence, as required by the Internal Revenue
Code, correctly completed and executed such Lender establishing that such
payment is not subject to United States federal withholding tax under the
Internal Revenue Code because such payment is either effectively connected with
the conduct by such Lender of a trade or business in the United States or
totally exempt from United States federal withholding tax by reason of the
application of the provisions of a treaty to which the United States is a party
or such Lender is otherwise exempt.
(d) Borrower agrees to indemnify Agent and each Lender, their respective
Affiliates and the respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of the Loan Documents or any actual or proposed use of
proceeds of the Loan hereunder; provided that no Indemnitee shall have the right
to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
SECTION 8.4 Waiver of Set-Offs; Sharing of Set-Offs. (a) Each Lender hereby
waives any right of set-off against the Obligations it has with respect to any
deposit account of Borrower, its Subsidiaries or Affiliates maintained with such
Lender or any other account or property of Borrower, its Subsidiaries or its
Affiliates held by such Lender; provided however, that the within waiver is not
intended, and shall not be deemed, to waive any right of set-off (i) any Lender
has with respect to any account required to be maintained pursuant to this
Agreement or any other Loan Document or (ii) arising other than pursuant to this
Agreement or the other Loan Documents.
(b) As to any set-off permitted pursuant to Section 8.4(a) above, each
Lender agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to the Obligations held by it
which is greater than the proportion received by any other Lender in respect of
the aggregate amount of principal and interest due with respect to the
Obligations held by such other Lender, such Lender receiving such
proportionately greater payment shall promptly purchase such participation in
the Obligations held by the other Lenders, and such other adjustments shall be
made, as may be required so that all such payments of principal and interest
with respect to the Obligations held by Lenders shall be shared by Lenders based
upon each Lender's Pro Rata Share; provided that nothing in this Section shall
impair the right of any Lender to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of
Indebtedness of Borrower other than the Obligations. Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in
67
the Obligations, whether or not acquired pursuant to the foregoing arrangements,
may exercise rights of set-off or counterclaim and other rights with respect to
such participation as fully as if such holder of a participation were a direct
creditor of Borrower in the amount of such participation.
SECTION 8.5 Amendments and Waivers.
(a) No amendment or modification of any provision of this Agreement shall
be effective without the written agreement of the Majority Lenders (after notice
to all Lenders) and Borrower (except for amendments which by the express terms
of this Agreement do not require the consent of Borrower), and (b) no
termination or waiver of any provision of this Agreement, or consent to any
departure by Borrower therefrom (except as expressly provided in Section
8.5(a)(v) below with respect to waivers of late fees), shall in any event be
effective without the written concurrence of the Majority Lenders (after notice
to all Lenders), which Majority Lenders shall have the right to grant or
withhold at their sole discretion; provided, however, that the following
amendments, modifications or waivers shall require the consent of all Lenders:
(i) increasing or decreasing the Total Commitment of any Lender (except for
ratable decreases in the Revolving Commitments by Borrower pursuant to Section
2.1);
(ii) changing the principal amount of the Loan (except that no approval
shall be required for reductions in the amount of the Loan resulting from
repayments)or final maturity of the Loan (except for extensions pursuant to
Section 2.10 or acceleration pursuant to Section 6.2);
(iii) reducing the interest rates applicable to the Loan;
(iv) reducing the rates on which fees payable pursuant hereto are
determined;
(v) forgiving or delaying any amount payable or receivable under Article 2
or waiving any Default or Event of Default in respect thereof;
(vi) changing the definition of "Majority Lenders" or "Pro Rata Share";
(vii) changing any provision contained in this Section 8.5;
(viii) releasing any obligor under any Loan Document, unless such release
is otherwise required or permitted by the terms of this Agreement;
(ix) consent to assignment by Borrower of all of its duties and Obligations
hereunder pursuant to Section 8.6; or
(x) any amendment to or modification of Section 5.12, or to the definition
of "Leverage Ratio," "Total Obligations" or "Gross Asset Value" or to any other
definition or other provision of this Agreement which would affect the
calculation of the Leverage Ratio.
68
provided, further, any amendment, waiver or modification of the provisions of
Article 7 (other than subsections (a), (b), (e), (f) and (g) of Section 7.13)
may be made without the consent of the Borrower. Agent agrees to provide
Borrower with notice of any such amendment, waiver or modification; provided,
however, that the failure to give such notice shall not invalidate such
amendment, waiver or modification.
No amendment, modification, termination or waiver of any provision of
Article 7 or any other provision referring to Agent shall be effective without
the written concurrence of Agent, but only if such amendment, modification,
termination or waiver alters the obligations or rights of Agent. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on Borrower in any case
shall entitle Borrower to any other further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 8.5 shall be binding on each assignee,
transferee or recipient of Agent's or any Lender's Total Commitment under this
Agreement or the Advances at the time outstanding.
SECTION 8.6 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all Lenders.
(b) Any Lender may, in accordance with applicable law, at any time sell to
one or more banks or other institutions (each a "Participant") participating
interests in any Advances owing to such Lender, the Note held by such Lender,
the Total Commitment held by such Lender hereunder or any other interests of
such Lender hereunder. Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.5, 8.3(c) and 8.7 hereof with respect to its
participation; provided that no Participant shall be entitled to receive any
greater amount pursuant to such Section than such Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such Lender to such Participant had no such transfer occurred. In no event shall
a Lender that sells a participation be obligated to the Participant to take or
refrain from taking any action hereunder, under such Lender's Note or in respect
of such Lender's Total Commitment except that such Lender may agree that it will
not, without the consent of the Participant, agree to (i) the increase or
extension of the term, or the extension of the time or waiver of any requirement
for the reduction or termination, of such Lender's Total Commitment, (ii) the
extension of any date fixed for the payment of principal of or interest on the
related Loan or Loans or any portion of any fees payable to the Participant,
(iii) the reduction of any payment of principal thereof, or (iv) the reduction
of the rate at which either interest is payable thereon to a level below the
rate at which the Participant is entitled to receive interest in respect of such
participation.
(c) Each Lender may at any time assign, pursuant to an assignment
substantially in the form of Exhibit G attached hereto and incorporated herein
by reference, with (unless such
69
assignment is to an existing Lender or to an Affiliate of any such Lender) the
consent of the Agent and the Borrower (not to be unreasonably withheld or
delayed, and provided that Borrower's consent shall not be required if, at the
time of such assignment, any monetary Default or monetary Event of Default is in
existence hereunder or under the Notes or any other Loan Document) to one or
more banks or other institutions (in either case, an "Assignee") all or any part
of any Advances owing to such Lender, the Note held by such Lender, the Total
Commitment held by such Lender or any other interest of such Lender hereunder;
provided, however, that (i) each such assignment by a Lender shall be made in
such manner so that the same portion of its Advances, Notes and Total Commitment
is assigned to the Assignee and (ii) unless Borrower and the Agent consent
otherwise, and except in the case of an assignment to another Lender, any
partial assignment of a Lender's Total Commitment shall be in a minimum
principal amount of $10,000,000.00, and (iii) at all times prior to its
resignation or replacement, Agent's Total Commitment shall be equal to or
greater than the Total Commitment of each other Lender. Without restricting the
right of Borrower or Agent to reasonably object to any bank or financial
institutional becoming an assignee of an interest of a Lender hereunder, each
proposed assignee must be an existing Lender or a bank or financial institution
which (i) has (or, in the case of a bank which is a subsidiary, such bank's
parent has) a rating of its senior debt obligations of not less than Baa-1 by
Moody's Investors Services, Inc. or a comparable rating by a rating agency
acceptable to Agent and (ii) has total assets in excess of $10,000,000,000.00.
Borrower and the Lenders agree that, to the extent of any assignment, the
Assignee shall be deemed to have the same rights and benefits with respect to
Borrower under this Agreement and the Notes as it would have had if it were a
Lender hereunder on the date hereof with respect to its Pro Rata Share and the
assigning Lender shall be released from its Total Commitment hereunder, to the
extent of such assignment. Upon the making of an assignment, the assigning
Lender shall pay to the Agent an assignment fee of $2,500, unless the Assignee
is an Affiliate of the assigning Bank, in which case no such assignment fee
shall be due.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 8.6, any Lender may assign and pledge all
or any portion of its Advances and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(e) Borrower authorizes each Lender to disclose to any Participant or
Assignee ("Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning Borrower which has been
delivered to such Lender by Borrower or the Agent pursuant to this Agreement or
which has been delivered to such Lender by Borrower in connection with such
Lender's credit evaluation of Borrower prior to entering into this Agreement.
(f) Any Lender, at such Lender's sole cost and expense, shall be entitled
to have the Notes held by it subdivided in connection with a permitted
assignment of all or any portion of such Notes and the respective Advances
evidenced thereby pursuant to Section 8.6(c) above. Any Lender, which by reason
of an assignment pursuant to Section 8.6(c) hereof or otherwise, has or would
have more than one (1) Term Note or more than one (1) Revolving Note hereunder
70
shall be entitled to have such Term Notes and/or Revolving Notes consolidated
into a single Term Note and a single Revolving Note. In the case of any such
subdivision or consolidation, the new Notes (the "New Notes") issued in exchange
for a Note or Notes (the "Old Note(s)") previously issued hereunder (i) shall be
substantially in the form of Exhibits C and D hereto, as appropriate, (ii) shall
be dated the date of such assignment or of the most recent Note held by such
Lender, as the case may be, (iii) shall be otherwise duly completed and (iv)
shall bear a legend, to the effect that such New Note is issued in exchange for
such Old Note(s) and that the indebtedness represented by such Old Note(s) shall
not have been extinguished by reason of such exchange.
(g) Borrower will use reasonable efforts to cooperate with Agent and
Lenders in connection with the assignment of interests under this Agreement or
the sale of participations herein.
SECTION 8.7 Capital Adequacy. If, after the date hereof, any Lender shall
have determined that either (i) the adoption or implementation of any applicable
law, rule, regulation or guideline of general applicability regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or (ii)
compliance by such Lender (or any lending office of such Lender) with any
request or directive of general applicability regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's capital as a consequence of its or Borrower's obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, implementation, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, within ten (10) days after
demand by such Lender, which demands shall include a calculation and a reference
to the applicable law, rule or regulation, Borrower shall pay to such Lender
such additional amount of amounts as will adequately compensate such Lender for
such reduction. Such Lender will use good faith and reasonable efforts to
designate a different lending office for such Lender's Advances if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender. Each Lender shall notify the Agent and the Borrower of any event
occurring after the date of this Agreement entitling such Lender to compensation
under this Section 8.7 within 45 days, after such Lender obtains actual
knowledge thereof; provided that if any Lender fails to give such notice within
45 days after it obtains actual knowledge of such an event, such Lender shall,
with respect to compensation payable pursuant to this Section 8.7 in respect of
any costs resulting from such event, only be entitled to payment for costs
incurred from and after the date 45 days prior to the date that such Lender
gives such notice. A certificate of such Lender claiming compensation under this
Section 8.7 and setting forth the additional amount of amounts to be paid to it
hereunder, together with the description of the manner in which such amounts
have been calculated, shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
71
SECTION 8.8 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 8.9 Notice of Final Agreement. THIS AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES.
SECTION 8.10 Invalid Provisions. Any provision of any Loan Document held by
a court of competent jurisdiction to be illegal, invalid or unenforceable shall
not invalidate the remaining provisions of such Loan Document which shall remain
in full force and effect and the effect thereof shall be confined to the
provision held invalid or illegal.
SECTION 8.11 Maximum Rate. Regardless of any provision contained in any of
the Loan Documents, Lenders shall never be entitled to receive, collect or apply
as interest (whether termed interest herein or deemed to be interest by
operation of law or judicial determination) on the Obligations any amount in
excess of interest calculated at the Maximum Rate, and, in the event that any
Lender ever receives, collects or applies as interest any such excess, the
amount which would be excessive interest shall be deemed to be a partial
prepayment of principal and treated hereunder as such; and, if the principal
amount of the Obligations are paid in full, any remaining excess shall forthwith
be paid to Borrower. In determining whether or not the interest paid or payable
under any specific contingency exceeds interest calculated at the Maximum Rate,
Borrower and Lenders shall, to the maximum extent permitted under applicable
law, (i) characterize any non-principal payment as an expense, fee or premium
rather than as interest; (ii) exclude voluntary prepayments and the effects
thereof; and (iii) amortize, prorate, allocate and spread, in equal parts, the
total amount of interest throughout the entire contemplated term of the
Obligations; provided that, if the Obligations are paid and performed in full
prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds interest calculated
at the Maximum Rate, Lenders shall refund to Borrower the amount of such excess
or credit the amount of such excess against the principal amount of the
Obligations and, in such event, Lenders shall not be subject to any penalties
provided by any laws for contracting for, charging, taking, reserving or
receiving interest in excess of interest calculated at the Maximum Rate.
SECTION 8.12 Limitation Upon Liability. Limitation Upon Liability. Subject
to the exceptions and qualifications described below, the partners, directors,
officers, shareholders, members, unit holders, and employees of Borrower and
Guarantors (the "Exculpated Parties") shall not be personally liable for the
payment of the Loan. Notwithstanding the foregoing provisions of this paragraph:
(a) if a Default occurs, nothing hereinabove stated shall in any way prevent or
hinder the Agent or the Lenders in the enforcement or foreclosure of any liens,
security agreements, or other pledges of collateral (including, without
limitation, assignments of partnership interests and other ownership interests)
securing the payment of the Loan, or in the pursuit or enforcement of any remedy
or judgment
72
against Borrower, any Guarantor, and its or their assets; and (b) each of the
Exculpated Parties which is not an individual (i.e., which is a corporation,
partnership, joint venture, limited liability company, or other similar entity)
shall be fully liable to the Agent and the Lenders to the same extent that the
Exculpated Parties would be liable absent the foregoing provisions of this
paragraph: (i) for fraud or willful misrepresentation by an Exculpated Party or
its Affiliates (to the full extent of losses suffered by the Agent or the
Lenders by reason of such fraud or willful misrepresentations); (ii) for the
retention of any income in excess of operating expenses of the Property arising
with respect to any Property collected after Agent has given Borrower any notice
that Borrower is in default under any of the Loan Documents and that the Agent
has exercised its option to accelerate the maturity of the Loan, or to exercise
any of the rights, remedies and recourses of the Agent or the Lenders under the
Loan Documents (to the full extent of the income in excess of such operating
expenses collected after the giving of any such notice); and (iii) for the fair
market value, as of the time of the giving of any notice referred to in (ii)
above, of any personalty, fixtures or other assets removed or disposed of after
the giving of any notice referred to in (ii) above.
SECTION 8.13 Course of Dealing. Borrower and Lenders mutually agree that
each shall proceed at all times in good faith and in a commercially reasonable
manner in the performance of its obligations and in the exercise of its judgment
or discretion hereunder and under the other loan documents.
SECTION 8.14 Treatment of Certain Information; Confidentiality.
(a) Borrower acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided to Borrower or
one or more of its Subsidiaries (in connection with this Agreement or otherwise)
by any Lender or by one or more Subsidiaries or Affiliates of such Lender and
Borrower hereby authorizes each Lender to share any information delivered to
such Lender by Borrower and its Subsidiaries pursuant to this Agreement, or in
connection with the decision of such Lender to enter into this Agreement, to any
such Subsidiary or Affiliate, it being understood that any such Subsidiary or
Affiliate receiving such information shall be bound by the provisions of clause
(b) below as if it were a Lender hereunder.
(b) Each Lender agrees (on behalf of itself and each of its Affiliates,
directors, officers, employees and representatives) to keep confidential, in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by Borrower pursuant to this Agreement
which is identified by Borrower as being confidential at the time the same is
delivered to the Lenders, provided that nothing herein shall limit the
disclosure of any such information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for any of the Lenders, (iii) to
bank examiners, auditors or accountants, (iv) to any other Lender, (v) in
connection with any litigation to which any one or more of the Lenders is a
party (provided, that each such Lender will promptly notify Borrower of such
litigation and of such proposed disclosure prior to the disclosure of such
information (unless prohibited from doing so by the relevant court)) or (vi) to
any Transferee (or prospective Transferee) so long as such
73
Transferee (or prospective Transferee) first executes and delivers to the
respective Lender a Confidentiality Agreement containing substantially the term
of this Section 8.14.
SECTION 8.15 Conflict of Terms. In the event of a conflict between the
terms and provisions of this Agreement and the terms and provisions of any of
the other Loan Documents, the terms of this Agreement shall govern.
SECTION 8.16 Governing Law; Submission to Jurisdiction. THIS AGREEMENT AND
EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF GEORGIA. BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY
GEORGIA STATE COURT SITTING IN ATLANTA, GEORGIA FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY. BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
SECTION 8.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT, ANY NOTE OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH,
OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, ANY NOTE OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
----------------
Initials
74
SECTION 8.18 Replacement of Notes. In the event of the loss, theft,
destruction, total or partial obliteration, mutilation or inappropriate
cancellation of any Note, or the placement of any inappropriate marking upon any
Note, and in the case of any such loss, theft, destruction or total
obliteration, upon delivery of an indemnity agreement reasonably satisfactory to
Borrower or, in the case of any such partial obliteration, mutilation,
inappropriate cancellation or inappropriate marking, upon surrendering and
cancellation of such Note, Borrower will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to such Note and dated as of
the date of such Note and upon such execution and delivery all references in
this Agreement to Notes shall be deemed to include such replacement Note.
75
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
"Borrower"
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc.
as General Partner
By:_______________________________
Name: ____________________________
Title:____________________________
Address for Notices:
--------------------
CBL & Associates Limited Partnership
c/o CBL & Associates Properties, Inc.
One Park Place
6148 Lee Highway
Chattanooga, Tennessee 37421
Attn: President
Telecopy Number: (615) 490-8662
with a copy to:
CBL & Associates Properties, Inc.
One Park Place
6148 Lee Highway
Chattanooga, Tennessee 37421
Attn: Mary Ann Sinnott, Esq.
Telecopy Number: (615) 490-8662
Signatures Continued on Next Page
76
Signatures Continued from Previous Page
"Agent" and "Lender"
Total Commitment:
- ----------------
$______________ WELLS FARGO BANK, NATIONAL ASSOCIATION
Term Commitment:
$--------------
By:_______________________________
Revolving Commitment: Name: ____________________________
- -------------------- Title:____________________________
$__________________
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attn: Loan Administration Manager
Telecopy Number: (770) 435-2262
with copies to:
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Attn: Cynthia Wilusz Lovell
Telecopy Number: (415) 975-7995
Wells Fargo Bank, National Association
2030 Main Street, Suite 800
Irvine, California 92714
Attn: Jim Furuyama
Telecopy Number: (714) 261-0946
Troutman Sanders LLP
Suite 5200
600 Peachtree Street
Atlanta, Georgia 30308-2216
Attn: Larry E. Gramlich, Esq.
Telecopy Number: (404) 962-6573
Signatures Continued on Next page
77
Signatures Continued from Previous Page
Total Commitment: "Lender"
- ----------------
$--------------
FLEET NATIONAL BANK
Term Commitment:
- ---------------
$--------------
By:_______________________________
Revolving Commitment: Name: ____________________________
- -------------------- Title:____________________________
$__________________
Fleet National Bank
Mail Stop MA BO FIIC
75 State Street
Boston, Massachusetts 02109
Attention: Aron Levine
Telecopy Number: (617) 346-3220
Signatures Continued on Next Page
78
Signatures Continued from Previous Page
Total Commitment:__________ "Lender"
- ----------------
$-----------------
U.S. BANK NATIONAL ASSOCIATION
Term Commitment:
- ---------------
$______________ By:_______________________________
Name: ____________________________
Revolving Commitment: Title:____________________________
- --------------------
$------------------
U.S. Bank National Association
U.S. Bank Place
MPF P0509
601 Second Avenue, South
Minneapolis, Minnesota 55402-4302
Attn: Mike Raarup
Telecopy Number: (612) 973-0830
Signatures Continued on Next Page
79
Signatures Continued from Previous Page
Total Commitment___________ "Lender"
- ----------------
$---------------
COMMERZBANK AG, NEW YORK AND
Term Commitment:___________ GRAND CAYMAN BRANCHES
- ---------------
$--------------
By:________________________________
Revolving Commitment: Name: _____________________________
- -------------------- Title:_____________________________
$__________________
Attest:____________________________
Name:______________________________
Title:_____________________________
Commerzbank AG
2 World Financial Center
New York, NY 10281
Attention: Marcus Perry
Telecopy Number: (212) 266-7565
Signatures Continued on Next Page
80
Signatures Continued from Previous Page
Total Commitment: _________ "Lender"
- ----------------
$--------------
KEYBANK NATIONAL ASSOCIATION
Term Commitment:
- ---------------
$--------------
By:_______________________________
Revolving Commitment: Name: ____________________________
- -------------------- Title:____________________________
$__________________
KeyBank National Association
127 Public Square, 6th Floor
Cleveland, OH 44114-1306
Attention: Dan Heberle
Telecopy Number: (216) 689-4997
81
EXHIBIT E
FORM OF EXTENSION NOTICE
______________ __, 200_
Wells Fargo Bank, National Association
2859 Paces Ferry Road
Suite 1805
Atlanta, Georgia 30339
Attention: ________________
Ladies and Gentlemen:
Reference is made to that certain Loan Agreement dated as of ____________
___, 2001, (the "Loan Agreement"), by and among CBL & Associates Limited
Partnership (the "Borrower"), Wells Fargo Bank, National Association, Fleet
National Bank, U.S. Bank, National Association, CommerzBank AG, New York and
Grand Cayman Branches, and Keybank National Association, and their assignees
under Section 8.6 thereof ("Lenders") and Wells Fargo Bank, National
Association, as Agent (the "Agent"). Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the Loan
Agreement.
Pursuant to Section ____ of the Loan Agreement, the Borrower hereby gives
notice to the Agent and Lenders that it is exercising, and does hereby exercise,
its option to extend the current Maturity Date of _____________ __, 200__ by a
one-year period to _________________ __, 200__, said extension being subject to
satisfaction of the conditions set forth in Section 2.10 of the Loan Agreement.
82
The Borrower hereby certifies to the Agent and the Lenders that as of the
date hereof (a) no Default or Event of Default has occurred and is continuing,
and (b) the representations and warranties of the Borrower contained in the Loan
Agreement and the other Loan Documents are true and correct in all material
respects, except to the extent such representations or warranties specifically
relate to an earlier date or such representations or warranties become untrue by
reason of events or conditions otherwise permitted under the Loan Agreement or
the other Loan Documents.
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., as General
Partner
By:_______________________________
Name: ________________________
Title: _______________________
Attest:___________________________
Name: ________________________
Title: ______________________
83
SCHEDULE 1.1(a)
GUARANTORS
CBL/J I, LLC, a Delaware limited liability company,
CBL/J II, LLC, a Delaware limited liability company;
CBL/Brookfield I, LLC, a Delaware limited liability company;
CBL/Brookfield II, LLC, a Delaware limited liability company;
CBL/Fayette I, LLC, a Delaware limited liability company;
CBL/Fayette II, LLC, a Delaware limited liability company;
CBL/Cary I, LLC, a Delaware limited liability company;
CBL/Cary II, LLC, a Delaware limited liability company;
CBL/Madison I, LLC, a Delaware limited liability company;
CBL/Columbia I, LLC, a Delaware limited liability company;
CBL/Jefferson I, LLC, a Delaware limited liability company;
CBL/Jefferson II, LLC, a Delaware limited liability company;
CBL/Citadel I, LLC, a Delaware limited liability company;
CBL/Citadel II, LLC, a Delaware limited liability company;
CBL/Eastgate I, LLC, a Delaware limited liability company;
CBL/Eastgate II, LLC, a Delaware limited liability company;
CBL/Kentucky Oaks, LLC, a Delaware limited liability company;
CBL/Midland I, LLC, a Delaware limited liability company;
CBL/Midland II, LLC, a Delaware limited liability company;
CBL/Northwoods I, LLC, a Delaware limited liability company;
CBL/Northwoods II, LLC, a Delaware limited liability company;
CBL/Old Hickory I, LLC, a Delaware limited liability company;
CBL/Old Hickory II, LLC, a Delaware limited liability company;
CBL/Regency I, LLC, a Delaware limited liability company
CBL/Regency II, LLC, a Delaware limited liability company;
CBL/Towne Mall I, LLC, a Delaware limited liability company;
CBL/Towne Mall II, LLC, a Delaware limited liability company;
CBL/Wausau I, LLC, a Delaware limited liability company;
CBL/Wausau II, LLC, a Delaware limited liability company;
CBL/Wausau III, LLC, a Delaware limited liability company;
CBL/Wausau IV, LLC, a Delaware limited liability company;
CBL/Parkdale, LLC, a Texas limited liability company;
CBL/Weston I, LLC, a Delaware limited liability company;
CBL/Weston II, LLC, a Delaware limited liability company;
Brookfield Square Joint Venture, an Ohio general partnership;
Lexington Joint Venture, an Ohio general partnership;
JG Winston-Salem, LLC, an Ohio limited liability company;
JG Saginaw, LLC, an Ohio limited liability company;
CBL/CherryVale I, LLC, a Delaware limited liability company;
Charleston Joint Venture, an Ohio general partnership;
North Charleston Joint Venture, an Ohio general partnership;
Old Hickory Mall Venture, a Tennessee general partnership;
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JG Randolph LLC, an Ohio limited liability company;
Jefferson Mall Company, an Ohio limited partnership;
Eastgate Company, an Ohio general partnership;
Midland Venture Limited Partnership, a Michigan limited partnership;
Racine Joint Venture, an Ohio general partnership;
Towne Mall, an Ohio general partnership;
Wausau Joint Venture, an Ohio general partnership;
Wausau Penney Investor Joint Venture, an Ohio general partnership;
Parkdale Mall Associates, a Texas limited partnership; and
Weston Management Company Limited Partnership, a Delaware limited partnership.
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SCHEDULE 1.1(b)
INTERESTS
Brookfield Square Joint Venture, an Ohio general partnership;
Lexington Joint Venture, an Ohio general partnership;
Cary Venture Limited Partnership, a Delaware limited partnership;
JG Winston-Salem, LLC, an Ohio limited liability company;
Madison Joint Venture, an Ohio general partnership;
Columbia Joint Venture, an Ohio general partnership;
Jefferson Mall Company, an Ohio limited partnership;
JG Saginaw, LLC, an Ohio limited liability company;
Parkdale Mall Associates, a Texas limited partnership;
CBL/Cherryvale I, LLC, a Delaware limited liability company;
Charleston Joint Venture, an Ohio general partnership;
Eastgate Company, an Ohio general partnership;
Kentucky Oaks Mall Company, an Ohio limited partnership;
Midland Venture Limited Partnership, a Michigan limited partnership;
North Charleston Joint Venture, an Ohio general partnership;
Old Hickory Mall Venture, a Tennessee general partnership;
JG Randolph LLC, an Ohio limited liability company;
Racine Joint Venture, an Ohio general partnership;
Towne Mall, an Ohio general partnership;
Wausau Joint Venture, an Ohio general partnership;
and Wausau Penney Investor Joint Venture, an Ohio general partnership.
Weston Management Company Limited Partnership, a Delaware limited partnership
SCHEDULE 1.1(c)
PROPERTIES
Brookfield Square Mall, Brookfield, Waukesha County, Wisconsin;
Fayette Mall, Lexington, Fayette County, Kentucky;
Cary Towne Center, Cary, Wake County, North Carolina;
Hanes Mall, Winston-Salem, Forsyth County, North Carolina;
East Towne Mall, Madison, Dane County, Wisconsin;
West Towne Mall, Madison, Dane County, Wisconsin;
Columbia Mall, Columbia, Richland County, South Carolina;
Jefferson Mall, Louisville, Jefferson County, Kentucky;
Fashion Square Mall, Saginaw, Saginaw County, Michigan;
Parkdale Mall, Beaumont, Jefferson County, Texas;
Cherryvale Mall, Rockford, Winnebago County, Illinois;
Citadel Mall, Charleston, Charleston County, South Carolina;
Eastgate Mall, Cincinnati, Clermont County, Ohio;
Kentucky Oaks Mall, Paducah, McCracken County, Kentucky;
Midland Mall, Midland, Midland County, Michigan;
Northwoods Mall, Charleston, Charleston County, South Carolina;
Old Hickory Mall, Jackson, Madison County, Tennessee;
Randolph Mall, Asheboro, Randolph County, North Carolina;
Regency Mall, Racine, Racine County, Wisconsin;
Towne Mall, Middletown, Warren County, Ohio; and
Wausau Center, Wausau, Marathon County, Wisconsin.
Schedule 4.7
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Phase I Environmental Site Assessments
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Property Consultant Report Date
Brookfield Square Mall Criterium Engineers 7/28/00
Cary Towne Center Criterium Engineers 7/28/00
Cherryvale Mall Criterium Engineers 7/28/00
Citadel Mall Criterium Engineers 7/28/00
Columbia Mall Criterium Engineers 7/28/00
Eastgate Mall Criterium Engineers 7/28/00
East Towne Mall Criterium Engineers 7/28/00
Fashion Square Mall Criterium Engineers 7/28/00
Fayette Mall Criterium Engineers 7/28/00
Hanes Mall Criterium Engineers 7/28/00
Jefferson Mall Criterium Engineers 7/28/00
Kentucky Oaks Mall Criterium Engineers 7/28/00
Midland Mall Criterium Engineers 7/28/00
Northwoods Mall Criterium Engineers 7/28/00
Old Hickory Mall Criterium Engineers 7/28/00
Parkdale Mall Criterium Engineers 7/28/00
Randolph Mall Criterium Engineers 7/28/00
Regency Mall Criterium Engineers 7/28/00
Towne Mall Criterium Engineers 7/28/00
Wausau Center Criterium Engineers 7/28/00
West Towne Mall Criterium Engineers 7/28/00
SCHEDULE 6.3
REQUIRED PRINCIPAL PAYMENT AND REDUCTION IN COMMITMENTS
UPON REMOVAL OF PROPERTY UNDER SECTION 6.3
Column I Column II
REQUIRED PRINCIPAL REDUCTION IN
PAYMENT AND REDUCTION REVOLVING
PROPERTY IN TERM COMMITMENTS COMMITMENTS
Brookfield Square Mall $ 3,058,000.00 $ 7,327,000.00
Cary Towne Center $ 9,110,000.00 $ 4,477,000.00
Cherryvale Mall $ 3,915,000.00 $ 6,928,000.00
Citadel Mall $ 10,585,000.00 $ 6,311,000.00
Columbia Mall $ 3,672,000.00 $ 5,808,000.00
East & West Towne Mall; W. Towne
Crossing $ 2,455,000.00 $ 8,379,000.00
Eastgate Mall & Eastgate Crossing
$ 2,462,000.00 $ 4,917,000.00
Fashion Square Mall $ 2,655,000.00 $ 6,237,000.00
Fayette Mall $ 5,785,000.00 $ 4,596,000.00
Hanes Mall $ 7,154,000.00 $ 10,828,000.00
Jefferson Mall $ 4,273,000.00 $ 4,878,000.00
Kentucky Oaks Mall ------------ $ 181,000.00
Midland Mall $ 1,134,000.00 $ 452,000.00
Northwoods Mall $ 3,179,000.00 $ 5,813,000.00
Old Hickory Mall $ 2,188,000.00 $ 4,072,000.00
Parkdale Mall $ 5,848,000.00 $ 7,503,000.00
Randolph Mall $ 15,288,000.00 $ 3,802,000.00
Regency Mall $ 5,990,000.00 $ 6,547,000.00
Towne Mall $ 19,499,000.00 $ 1,326,000.00
Wausau Center $ 1,851,000.00 $ 1,517,000.00
SCHEDULE 6.5
REQUIRED PRINCIPAL PAYMENT AND REDUCTION IN COMMITMENTS
UPON REMOVAL OF PROPERTY UNDER SECTION 6.5
Column I Column II
REQUIRED PRINCIPAL REDUCTION IN
PAYMENT AND REDUCTION REVOLVING
PROPERTY IN TERM COMMITMENTS COMMITMENTS
Brookfield Square Mall $ 3,822,500.00 $ 9,159,000.00
Cary Towne Center $ 11,387,500.00 $ 5,596,000.00
Cherryvale Mall $ 4,893,750.00 $ 8,660,000.00
Citadel Mall $ 13,231,250.00 $ 7,889,000.00
Columbia Mall $ 4,590,000.00 $ 7,260,000.00
East & West Towne Mall; W. Towne
Crossing $ 3,068,750.00 $ 10,474,000.00
Eastgate Mall & Eastgate Crossing
$ 3,077,500.00 $ 6,146,000.00
Fashion Square Mall $ 3,318,750.00 $ 7,797,000.00
Fayette Mall $ 7,231,250.00 $ 5,745,000.00
Hanes Mall $ 8,942,500.00 $ 13,535,000.00
Jefferson Mall $ 5,341,250.00 $ 6,097,000.00
Kentucky Oaks Mall ------------ $ 227,000.00
Midland Mall $ 1,417,500.00 $ 565,000.00
Northwoods Mall $ 3,973,750.00 $ 7,267,000.00
Old Hickory Mall $ 2,735,000.00 $ 5,090,000.00
Parkdale Mall $ 7,310,000.00 $ 9,378,000.00
Randolph Mall $ 19,110,000.00 $ 4,752,000.00
Regency Mall $ 7,487,500.00 $ 8,183,000.00
Towne Mall $ 24,373,750.00 $ 1,657,000.00
Wausau Center $ 2,313,750.00 $ 1,896,000.00