AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT ("Loan Agreement") amends and
restates in its entirety that certain Loan Agreement dated to be effective
June 12, 1998 between the parties hereto and is made to be effective as of
the 30th day of June, 1998, by and between CBL & ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership, whose address is One Park Place,
6148 Lee Highway, Chattanooga, Tennessee 37421-2931 (the "Borrower"), and
LAKESHORE/SEBRING LIMITED PARTNERSHIP, a Florida limited partnership, whose
address is the same as the Borrower's described above ("Lakeshore"), and
FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the statutes of the United States of America,
with offices at 701 Market Street, Chattanooga, Tennessee 37402 (hereinafter
referred to as the "Bank").
Recitals of Fact
Borrower has previously requested that the Bank commit to make loans
and advances to it, and to Lakeshore, for the benefit of Borrower, on a
revolving credit basis in an amount not to exceed at any one time outstanding
the aggregate principal sum of Eighty Million Dollars ($80,000,000.00) for
the purpose of providing working capital for pre-development expenses,
development costs, equity investments, repayment of existing indebtedness,
certain distributions to limited partners (as allowed herein), letters of
credit and construction and for general corporate purposes. The Bank has
agreed to make certain portions of such loans and advances on the terms and
conditions herein set forth. KeyBank National Association, formerly Society
National Bank, Compass Bank and AmSouth Bank, all as participants in the
Loan have also agreed to make certain portions of such loan and advances on
the terms and conditions herein set forth.
This Loan Agreement is currently being amended to change The Total
Obligations to Capitalized Value covenant.
NOW, THEREFORE, incorporating the Recitals of Fact set forth above and
in consideration of the mutual agreements herein contained, the parties agree
as follows:
AGREEMENTS
SECTION 1: DEFINITIONS AND ACCOUNTING TERMS
1.1 CERTAIN DEFINED TERMS. For the purposes of this Loan Agreement,
the following terms shall have the following meanings (such meanings to be
applicable equally to both the singular and plural forms of such terms)
unless the context otherwise requires:
"Adjusted Loan Amount" means the combined Net Operating Income from the
properties described in the CBL Mortgage as of each July 1, January 1, April
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1 and October 1, as the case may be, based upon the then immediately
preceding twelve (12) month period, divided by 1.25 with the resulting figure
being further divided by the applicable mortgage constant of .1159.
"Affiliate" means as to any Person, any other Person which, directly
or indirectly, owns or controls, on an aggregate basis including all
beneficial ownership and ownership or control as a trustee, guardian or other
fiduciary, at least ten percent (10%) of the outstanding shares of Capital
Stock or other ownership interest having ordinary voting power to elect a
majority of the board of directors or other governing body (irrespective of
whether, at the time, stock of any other class or classes of such corporation
shall have contingency) of such Person or at least ten percent (10%) of the
partnership or other ownership interest of such Person; or which controls,
is controlled by or is under common control with such Person. For the
purposes of this definition, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of management and
policies, whether through the ownership of voting securities, by contract or
otherwise. Notwithstanding the foregoing, a pension fund, university or
other endowment funds, mutual fund investment company or similar fund having
a passive investment intent owning such a ten percent (10%) or greater
interest in a Person shall not be deemed an Affiliate of such Person unless
such pension, mutual, endowment or similar fund either (i) owns fifty percent
(50%) or more of the Capital Stock or other ownership interest in such
Person, or (ii) has the right or power to select one or more members of such
Person's board of directors or other governing body.
"Agent" means Wells Fargo Realty Advisors Funding, Incorporated, a
Colorado corporation as agent pursuant to the Credit Agreement dated July 28,
1994 between Borrower and Agent.
"Applicable Law" means, in respect of any Person, all provisions of
statutes, rules, regulations and orders of any governmental authority
applicable to such Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions in which the person in question is a
party.
"Bank's Proportionate Share" means the Bank's undivided participating
interest in the Loan which shall be equal to Twenty Two Million Five Hundred
Thousand and NO/100 Dollars ($22,500,000.00).
"Base Rate" means the base commercial rate of interest established from
time to time by Bank. The currently existing Base Rate is eight and one-half
percent (8.50%) per annum.
"Borrowing Base" is the limitation on the aggregate Revolving Credit
Loan indebtedness which may be outstanding at any time during the term of
this Agreement. The Borrowing Base will be calculated each July 1, January
1, April 1 and October 1. The Borrowing Base will be an amount not to exceed
the Borrower's Adjusted Loan Amount.
"Business Day" means a banking business day of the Bank.
"Capital Stock" shall mean, as to any Person, any and all shares,
interests, warrants, participations or other equivalents (however designated)
of corporate stock of such Person.
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"Capitalized Value" shall mean:
(a) with respect to Non-Mall Projects, an amount, calculated as of any
date, equal to the quotient of (i) the sum of (A) Borrower's Funds From
Operations during the most recent quarter end (not including Funds from
Operations from Mall Projects), plus (minus), to the extent not already
included in this calculation, Net Operating Income (loss) from any Newly
Acquired Property (not including Mall Projects), annualized, plus (B) the
Interest Expense (not including interest expense from Mall Projects) used in
calculating Borrower's Funds From Operations pursuant to clause (A) above,
and (ii) nine and one half percent (9.5%).
(b) with respect to Mall Projects, an amount, calculated as of any
date, equal to the quotient of (i) the sum of (A) Borrower's Funds From
Operations during the most recent quarter end (from Mall Projects only), plus
(minus), to the extent not already included in this calculation, Net
Operating Income (loss) from any Newly Acquired Property (from Mall Projects
only), annualized, plus (B) the Interest Expense (from Mall Projects only)
used in calculating Borrower's Funds From Operations pursuant to clause (A)
above, and (ii) eight and one half percent (8.5%).
"CBL Holdings I" means CBL Holdings I, Inc., a Delaware corporation and
the sole general partner of Borrower.
"CBL Holdings II" means CBL Holdings II, Inc., a Delaware corporation
and a limited partner of Borrower.
"CBL Management, Inc." means CBL & Associates Management, Inc., a
Delaware corporation.
"CBL Mortgage" means the mortgages and/or deeds of trust with security
agreements and assignments of rents and leases and related amendments
executed by Borrower, Coolsprings Crossing Limited Partnership, East Towne
Crossing Limited Partnership, Valley Crossing Associates Limited Partnership,
Walnut Square Associates Limited Partnership, Lakeshore/Sebring Limited
Partnership [Including the Lakeshore Mortgage (New) and the Lakeshore
Mortgage (Old)] and/or Vicksburg Mall Associates, Ltd. and/or any other
entity related to or owned by Borrower and/or CBL & Associates Properties,
Inc. and/or CBL Holdings I, Inc. in favor of Bank covering their interest in
the properties described in EXHIBIT "A," attached hereto and made a part
hereof, referred to in Section 4.1(e) hereof.
"CBL Properties, Inc." means CBL & Associates Properties, Inc., a
Delaware corporation and a qualified public REIT and formerly until March 31,
1997 the sole general partner of Borrower.
"Closing Date" means the date set out in the first paragraph of this
Loan Agreement.
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"Combined" means, as to any calculation hereunder, that such
calculation shall be made on a combined basis for Borrower, CBL Holdings, CBL
Properties, Inc. and CBL Management, Inc., with each such calculation being
made, (a) in respect of Borrower, on a consolidated basis for Borrower and
its Subsidiaries, (b) in respect of CBL Holdings, on a consolidated basis for
CBL Holdings and its Subsidiaries, (c) in respect of CBL Properties, Inc.,
on a consolidated basis for CBL Properties, Inc. and its Subsidiaries, and
(d) in respect of CBL Management, Inc., on a consolidated basis for CBL
Management, Inc. and its Subsidiaries.
"Contingent Obligations" means, for any Person, any material
commitment, undertaking, Guarantee or material obligation constituting a
continuing liability under GAAP, but only to the extent the same are required
to be reflected on such Persons' audited financial statements.
"Credit Agreement" means the Credit Agreement dated as of July 28, 1994
and as amended by amendments dated as of May 5, 1995, July 5, 1995 and
subsequent amendments between the Borrower, Wells Fargo Realty Advisors
Funding, Incorporated and others.
"Debt Coverage Ratio" shall mean, as of any date the same is
calculated, the ratio of (a) EBITDA for the fiscal quarter ending on or most
recently ended prior to such date to (b) Debt Service during such fiscal
quarter, in each case calculated on a Combined basis in accordance with GAAP.
"Debt Service" means, with respect to Borrower, CBL Properties, Inc.,
and their respective Subsidiaries for any period, the sum of (a) Interest
Expense of Borrower, CBL Properties, Inc. and their respective Subsidiaries
for such period, plus (b) regularly scheduled principal payments on
Indebtedness of Borrower, CBL Properties, Inc. and their respective
Subsidiaries during such period other than (x) in respect of any period
following the Termination Date, the scheduled principal payments of the Term
Out Amount made after the Termination Date, the scheduled principal payments
of the Term Out Amount made after the Termination Date and (y) any regularly
scheduled principal payment payable on any Indebtedness which prepays such
Indebtedness in full, to the extent the amount of such final scheduled
principal payment is greater than the scheduled principal payment immediately
preceding such final scheduled principal payment, determined in each case on
a Combined basis in accordance with GAAP. For purposes of this definition,
a voluntary prepayment of Indebtedness shall not constitute a regularly
scheduled principal payment even if, under the terms of the agreement
governing such Indebtedness, the notice of prepayment has the effect of
causing the amount of the prepayment to become due and payable on the date
set for such notice of such prepayment.
"EBITDA" means, for any period, the sum of (i) Net Income of Borrower,
CBL Properties, Inc. and their respective Subsidiaries for such period
(excluding equity in net earnings (or loss) of their Unconsolidated
Affiliates), plus (ii) depreciation and amortization expense and other non-
cash charges of Borrower, CBL Properties, Inc. and their respective
Subsidiaries for such period, plus (iii) interest expense of Borrower, CBL
Properties, Inc. and their respective Subsidiaries for such period, plus (iv)
income tax expense in respect of such period, plus (v) cash dividends and
distributions actually received by Borrower, CBL Properties, Inc. and their
respective Subsidiaries during such period from Unconsolidated Affiliates,
plus (vi) extraordinary losses (and any unusual losses arising in or outside
the ordinary course of business of Borrower, CBL Properties, Inc. and their
respective Subsidiaries not included in extraordinary losses determined in
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accordance with GAAP that have been reflected in the determination of Net
Income) for such period, minus (vii) extraordinary gains of Borrower, CBL
Properties, Inc. and their respective Subsidiaries (and any unusual gains
arising in or outside the ordinary course of business of Borrower, CBL
Properties, Inc. or such respective Subsidiaries not included in
extraordinary gains determined in accordance with GAAP that have been
reflected in the determination of Net Income) for such period, determined in
each case on a Combined basis in accordance with GAAP.
"Effective Date," which definition is used and only applies within
Section 7.9 hereof, means the date the Credit Agreement between the Borrower
and Wells Fargo Realty Advisors Funding Incorporated became effective in
accordance with Section 4.1 thereof.
"Environmental Laws" means all applicable local, state or federal laws,
rules or regulations pertaining to environmental regulation, contamination
or cleanup, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Resource Conservation
and Recovery Act of 1976 or any state lien or superlien or environmental
cleanup statutes.
"Event of Default" has the meaning assigned to that phrase in
Section 8.
"Funds from Operations" means, as to any period, an amount equal to (a)
income (loss) from operations of Borrower, CBL Properties, Inc. and their
respective Subsidiaries for such period, plus (b) depreciation and
amortization, plus (minus) (c) to the extent not included in clause (a)
above, gain (loss) on the sales of outparcels made in the ordinary course of
business, plus (minus) (d) to the extent not included in clause (a) above,
Net Operating Income (loss) from any Newly Acquired Property acquired by
Borrower, CBL Properties, Inc. and their respective Subsidiaries during such
period, calculated based upon the immediately preceding twelve (12) months
period for such Newly Acquired Property, evidenced by the supporting
financial information to be furnished by Borrower pursuant to Section 6.5(d)
hereof, and after adjustments for Unconsolidated Affiliates, determined in
each case on a Combined basis in accordance with GAAP. Adjustments for
Unconsolidated Affiliates will be calculated to reflect funds from operations
on the same basis.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those which are to be used in making the calculations
for purposes of determining compliance with this Agreement. All calculations
made for the purposes of determining compliance with this Agreement shall
(except as may be otherwise expressly provided herein) be made by application
of generally accepted accounting principles applied on a basis consistent
with those used in preparation of the annual and quarterly financial
statements of CBL Properties, Inc. furnished to the Securities and Exchange
Commission.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without limiting
the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or other
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obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services,
to take-or-pay, or to maintain financial statement conditions or otherwise),
or (ii) entered into for the purpose of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or
to protect such obligee against losses in respect thereof (in whole or in
part), provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" shall mean and include all hazardous and toxic
substances, wastes or materials, any pollutants or contaminants (including,
without limitation, asbestos and raw materials which include hazardous
constituents), or any other similar substances or materials which are
included under or regulated by any applicable Environmental Laws.
"Indebtedness" shall mean, as applied to any Person at any time,
without duplication (a) all indebtedness, obligations or other liabilities
of such Person (i) for borrowed money or evidenced by debt securities,
debentures, acceptances, notes or other similar instruments, and any accrued
interest, fees and charges relating thereto; (ii) with respect to letters of
credit issued for such Person's account; (iii) under agreements for the
prospective purchase or repurchase of assets other than obligations arising
under unexercised option agreements; (iv) to make future investments in any
Person; (v) to pay the deferred purchase price of property or services
previously purchased or rendered, except unsecured trade accounts payable and
accrued expenses required to be capitalized in accordance with GAAP; (b) all
indebtedness, obligations or other liabilities of such Person or others
secured by a Lien on any asset of such Person, whether or not such Person is
otherwise obligated on such indebtedness, obligations or liabilities are
assumed by such Person, all as of such time; (c) all indebtedness,
obligations or other liabilities of such Person in respect of any foreign
exchange contract or any interest rate swap, cap or collar agreement or
similar arrangement, net of liabilities owed to such Person by the
counterparties thereon; (d) all shares of Capital Stock or equivalent
ownership interest subject (upon the occurrence of any contingency or
otherwise) to mandatory redemption prior to the date the Loan is scheduled
to be repaid in full; (e) obligations of others to the extent Guaranteed by
such Person or to the extent such Person is otherwise liable on a recourse
basis; and (f) such Person's pro rata share of non-recourse Indebtedness of
a partnership in which such Person is a partner (it being understood that the
remaining portion of such non-recourse partnership Indebtedness shall not
constitute Indebtedness of such Person).
"Interest Coverage Ratio" means, as of any date the same is calculated,
the ratio of (a) EBITDA for the fiscal quarter ending on or most recently
ended prior to such date to (b) Interest Expense for such fiscal quarter,
determined in each case on a Combined basis in accordance with GAAP.
"Interest Expense" means, for any Person for any period, total interest
expense on Indebtedness of such Person, whether paid or accrued, but without
duplication (including the interest component of capital leases), including,
without limitation, (a) all commissions, discounts and other fees and charges
owed with respect to letters of credit, and (b) one hundred percent (100%)
of any interest expense, whether paid or accrued, or any other Person for
which such Person is wholly or partially liable (whether by Guarantee,
pursuant to Applicable Law or otherwise) but excluding (i) interest on
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Reserved Construction Loan and (ii) swap or other interest hedging breakage
costs, all as determined in conformity with GAAP.
"Investment" in any Person shall mean any investment, whether by means
of share purchase, loan, advance, extension of credit, capital contribution
or otherwise, in or to such Person, the Guarantee of any Indebtedness of
such Person, or the subordination of any claim against such Person to other
Indebtedness of such Person.
"Lakeshore Note" means the promissory note from Lakeshore in the
original principal sum of $ 34,600,000.00 payable to the order of Agent,
later assigned by Agent to Shopping Center Finance Corp., and later assigned
by Shopping Center Finance Corp. to the Bank, such Promissory Note being now
for the principal sum of $20,400,000.00, as amended, renewed, or replaced
from time to time, but it does not include the Renewal of Promissory Note
dated December 6, 1994 to be effective April 1, 1994.
"Lakeshore Mortgage" means the Florida Mortgage from Lakeshore/Sebring
Limited Partnership in favor of Agent later assigned by Agent to Shopping
Center Finance Corp. and subsequently assigned to the Bank, as amended from
time to time.
"LIBOR Rate" means the London Interbank Offered Rates as established
from time to time and published in The Wall Street Journal, Money Rates
Section which, unless otherwise specified herein or in the Note, is a one (1)
month LIBOR Rate.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including but
not limited to the security interest or lien arising from a deed of trust,
mortgage, encumbrance, pledge, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes, and including but not limited
to reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases, and other title exceptions and
encumbrances affecting Property.
"Loan" means the Revolving Credit Loan from the Bank to the Borrower,
including the Lakeshore Note which was purchased by the Bank.
"Loan Agreement" means this Loan Agreement between the Borrower,
Lakeshore and the Bank, and any modifications, amendments, or replacements
thereof, in whole or in part.
"Mall Projects" means the real estate and improvement owned by the
Borrower and/or it Affiliates that is in the form of an enclosed regional
retail shopping mallthat includes two (2) or more anchor stores.
"Maximum Rate" means the maximum variable contract rate of interest
which the Bank may lawfully charge under applicable statutes and laws from
time to time in effect.
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"Mortgages" or "Mortgage" means a mortgage, deed of trust, deed to
secure debt or similar security instrument made or to be made by a Person
owning real estate or an interest in real estate granting a Lien on such real
estate or interest in real estate as security for the payment of
indebtedness.
"Newly Acquired Property" means Property acquired by Borrower, CBL
Properties, Inc. and/or their respective Subsidiaries during any fiscal
quarter for which compliance with financial covenants is being tested.
"Net Income" means, with respect to Borrower, CBL Properties, Inc., and
their respective Subsidiaries for any period, net earnings (or loss) after
deducting therefrom all operating expenses, income taxes and reserves and net
earnings (or loss) attributable to minority interests in Subsidiaries for the
period in question, determined in each case on a Combined basis in accordance
with GAAP. Without limiting the generality of the foregoing, earnings (or
losses) from the sale of outparcels in the ordinary course of business shall
be included in determining Net Income.
"Net Operating Income" means, for any Property for the period in
question (a) any cash rentals, expense or cost reimbursements, or other
income or gain earned by Borrower with respect to such Property, less (b) all
cash expenses (excluding items capitalized under GAAP) incurred by Borrower
during such period in connection with the operation or leasing of such
Property.
"Net Worth" means, with respect to Borrower, CBL Properties, Inc. and
their Subsidiaries as of any date, the sum of (a) the total shareholders'
equity of CBL Properties, Inc., plus (b) the value of all minority interests
in Borrower, plus (c) depreciation and amortization since December 31, 1993,
minus (d) all intangible assets, determined on a Combined basis in accordance
with GAAP.
"Non-Mall Projects" means the real estate and improvement owned by the
Borrower and/or it Affiliates that is in the form of a retail shopping center
that is not a Mall Project.
"Note" means the Revolving Credit Note or Notes executed by the
Borrower to the Bank in the original principal sums of Ten Million Six
Hundred Thousand Dollars ($10,600,000.00) (the "$10,600,000.00 Note") and
Forty Nine Million Dollars ($49,000,000.00), and the Lakeshore Note, as such
note or notes may be modified, renewed or extended from time to time; and any
other note or notes executed at any time to evidence the indebtedness under
this Loan Agreement, in whole or in part, and any renewals, modifications and
extensions thereof, in whole or in part.
"Participant" means KeyBank National Association, Compass Bank, AmSouth
Bank, their successors and assigns, and any other participants in the Loan.
"Participant's Proportionate Share (AmSouth)" means AmSouth Bank's (or
any successor to such bank's interest in the Loan) undivided participating
interest in the Loan which shall be equal to Twenty Two Million Five Hundred
Thousand and NO/100 Dollars ($22,500,000.00).
"Participant's Proportionate Share (KeyBank)" means KeyBank's (or any
successor to such bank's interest in the Loan) undivided participating
interest in the Loan which shall be equal to Twenty Two Million Five Hundred
Thousand and NO/100 Dollars ($22,500,000.00).
"Participant's Proportionate Share (Compass)" means Compass Bank's, (or
any successor to such bank's interest in the Loan) undivided participating
interest in the Loan which shall be equal to Twelve Million Five Hundred
Thousand Dollars ($12,500,000.00).
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"Participants' Proportionate Share" means Participant's Proportionate
Share (KeyBank), Participant's Proportionate Share (Compass), and
Participant's Proportionate Share (AmSouth).
"Participation Agreement" means that certain Participation Agreement
entered into of even date herewith among Bank, KeyBank National Association,
Compass Bank, AmSouth Bank and/or any other participants in the Loan, as
amended from time to time.
"Permitted Encumbrances" shall mean and include:
(a) liens for taxes, assessments or similar governmental charges not
in default or being contested in good faith by appropriate proceedings;
(b) workmen's, vendors', mechanics' and materialmen's liens and other
liens imposed by law incurred in the ordinary course of business, and
easements and encumbrances which are not substantial in character or amount
and do not materially detract from the value or interfere with the intended
use of the properties subject thereto and affected thereby;
(c) liens in respect of pledges or deposits under social security
laws, worker's compensation laws, unemployment insurance or similar
legislation and in respect of pledges or deposits to secure bids, tenders,
contracts (other than contracts for the payment of money), leases or
statutory obligations;
(d) any liens and security interests specifically listed and described
in EXHIBIT "B" hereto attached or in any exhibit describing permitted
exceptions and attached to any CBL Mortgage;
(e) such other liens and encumbrances to which Bank shall consent in
writing; and
(f) leases, licenses, rental agreements or other agreements for use
and occupancy of the subject property.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government or
agency or political subdivision thereof.
"Project" or "Projects," which definition is used and only applies
within Section 7.9 hereof, means the real estate projects owned by Borrower,
a Wholly Owned Subsidiary of Borrower, a Subpartnership or, to the extent
approved by the Supermajority Lenders, any other Person and "Project" shall
mean any one of the Projects. The capitalized terms used in this definition
shall have the same meaning as provided in the Credit Agreement.
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"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
"Reserved Construction Loan" shall mean a construction loan extended
to Borrower or a Subsidiary of Borrower for the construction of a project in
respect of which: (a) neither any monetary or material non-monetary default
nor any event of default exists; (b) interest on such loan has been budgeted
to accrue at a rate of not less than the Base Rate plus two percent (2%) at
the time the interest reserve account is established; (c) the amount of such
budgeted interest has been (i) included in the principal amount of such loan
and (ii) segregated into an interest reserve account (which shall include any
arrangement whereby loan proceeds equal to such budgeted interest are
reserved and only disbursed to make interest payments in respect of such
loan); (d) absent an event of default or a monetary or material non-monetary
default, such interest can be paid out of such interest reserve account only
for the purpose of making interest payments on such loan; (e) the amount
held in such interest reserve account in respect of such loan, together with
the net income if any, from such project projected by the Agent in its
reasonable judgment, will be sufficient, as reasonably determined by the
Agent from time to time, to pay all Interest Expense on such loan until the
date that the EBITDA of the project being financed by such loan is
anticipated to be sufficient to pay all Interest Expense on such loan; and
(f) Borrower has delivered all certificates required by Section 6 hereof.
"Revolving Credit Advances" means advances of principal on the
Revolving Credit Loan by the Bank under the terms of this Loan Agreement to
the Borrower during the term of the Revolving Credit Loan pursuant to
Section 3.1.
"Revolving Credit Loan" means the aggregate of the Borrower's and
Lakeshore's indebtedness to the Bank pursuant to Section 2 of this Loan
Agreement.
"Revolving Credit Note" means the Notes as described in Section 2.3
hereof and the Lakeshore Note.
"Subsidiary" shall mean, as to any Person, any other Person, more than
fifty percent (50%) of the outstanding shares of Capital Stock, partnership
interest or other ownership interest, having ordinary voting power to elect
a majority of the board of directors or similar governing body of such other
Person (irrespective of whether or not at the time stock or other ownership
interests of any other class or classes of such other Person shall have or
might have voting power by reason of the happening of any contingency) is at
the time directly or indirectly owned or controlled by such Person or by one
or more "Subsidiaries" of such Person, and whose financial reports are
prepared on a consolidated basis with such Person. "Wholly Owned Subsidiary"
shall mean any such Person of which all of the shares of Capital Stock or
ownership interests (other than, in the case of a corporation, directors'
qualifying shares) are so owned or controlled. For purposes of this
Agreement CBL Management, Inc. shall be deemed to be a Subsidiary of
Borrower.
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"Termination Date of Revolving Credit Loan" shall mean the earlier of
(a) June 1, 2000, or in the event that the Bank and Borrower shall hereafter
mutually agree in writing that the Revolving Credit Loan and the Bank's
commitment hereunder shall be extended to another date, such other date
mutually agreed upon between Bank and Borrower to which the Bank's commitment
shall have been extended, or (b) the date as of which Borrower shall have
terminated the Bank's commitment under the provisions of Section 2.5 hereof.
"Term Out Amount" means the then outstanding principal balance of the
Loan due and owing the Bank under the Note, if the Bank elects not to extend
the existing Maturity Date and the Borrower elects to cap the line of credit
as provided in the Note.
"Total Obligations" means, as of any date, the sum (without
duplication) of (a) the Indebtedness of Borrower, CBL Properties, Inc. and
their respective Subsidiaries (other than Indebtedness described in clauses
(a)(iii) and (a)(iv) of the definition thereof); plus (b) the aggregate
amount of Contingent Obligations of Borrower, CBL Properties, Inc. and their
respective Subsidiaries in respect of Indebtedness (other than Indebtedness
described in clauses (a)(iii) and (a)(iv) of the definition thereof); plus
(c) Borrower's, CBL Properties, Inc's or their respective Subsidiaries'
proportionate share of Indebtedness (other than Indebtedness described in
clauses (a)(iii) and (a)(iv) of the definition thereof) of any Unconsolidated
Affiliate, whether or not Borrower, CBL Properties, Inc. or such Subsidiary
is obligated on such Indebtedness; plus (d) all other amounts which would be
classified as a liability on the consolidated balance sheets of Borrower or
CBL Properties, Inc., determined in each case on a Combined basis in
accordance with GAAP.
"Unconsolidated Affiliate" shall mean, in respect of any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis
of accounting.
1.2 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements required to be delivered from time to time pursuant to Section 6.5
hereof.
SECTION 2: COMMITMENT; FUNDING AND TERMS OF REVOLVING
CREDIT LOAN
2.1 THE COMMITMENT. Subject to the terms and conditions herein set
out, Bank agrees and commits to make loan advances and letter of credit
advances to the Borrower from time to time, from the Closing Date until the
Termination Date of Revolving Credit Loan, in an aggregate principal amount
not to exceed, at any one time outstanding, the lesser of (a) Eighty Million
Dollars ($80,000,000.00) minus the sum, if any, applicable under the
provisions of Section 2.8 hereof; or (b) the Borrower's Borrowing Base, as
defined in Section 1.
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2.2 FUNDING THE LOAN. Each loan advance hereunder shall be made upon
the written request of the Borrower to the Bank, specifying the date and
amount and intended use thereof. All advances hereunder, whether under the
Note or the Lakeshore Note, shall be made by depositing the same to the
checking account of Borrower at the Bank or other methods acceptable to
Borrower and Bank. LAKESHORE ACKNOWLEDGES AND AGREES THAT NO ADVANCES SHALL
BE MADE DIRECTLY TO LAKESHORE EXCEPT UPON THE EXPRESS WRITTEN CONSENT OF THE
BORROWER RECEIVED BY THE BANK PRIOR TO THE ADVANCE BEING MADE.
2.3 THE NOTE AND INTEREST. The Revolving Credit Loan shall be
evidenced by two (2) promissory notes of the Borrower and one (1) promissory
note of Lakeshore, each payable to the order of the Bank in the aggregate
principal amount of Eighty Million Dollars ($80,000,000.00), in form
substantially the same as the copy of the Revolving Credit Note and the
Lakeshore Note attached hereto as EXHIBIT "C." The entire principal amount
of the Loan shall be due and payable on the Termination Date of Revolving
Credit Loan. The unpaid principal balances of the Revolving Credit Loan
shall bear interest from the Closing Date on disbursed and unpaid principal
balances (calculated on the basis of a year of 365 or 366 days as is
appropriate) at a rate per annum as specified in the Note. Said interest
shall be payable monthly on the first day of each month after the Closing
Date, commencing July 1, 1998 provided the Bank has in each instance mailed
to the Borrower a billing notice at least ten (10) days prior thereto setting
forth the payment amount next due, with the final installment of interest,
together with the entire outstanding principal balance of the Revolving
Credit Loan, being due and payable on the Termination Date of Revolving
Credit Loan. The first selection of the one (1) month, three (3) months, six
(6) months or one (1) year LIBOR Rate shall be made by the Borrower and
Lakeshore (but the rate selected by Lakeshore must always be the same as the
rate selected by the Borrower) on or prior to the date of the Note and each
selection thereafter shall be made at least twenty-four (24) hours prior to
the end of the then applicable interest rate period. Neither the Borrower
nor Lakeshore may ever select a rate period which exceeds the Termination
Date of the Revolving Credit Loan.
2.4 COMMITMENT FEE/SERVICING FEE. On the Closing Date, the Borrower
agrees to pay to the Bank [in addition to the commitment fee it paid in: (a)
March of 1994 in the amount of Seventy-Five Thousand Dollars ($75,000.00);
(b) November of 1994 in the amount of Fifty Thousand Dollars ($50,000.00);
(c) July of 1995 in the amount of No Dollars ($-0-); (d) March of 1996 in the
amount of Eighty Five Thousand and NO/100 Dollars ($85,000.00), and (e)
February of 1997 in the amount of One Hundred Ninety Thousand and no/100
Dollars ($190,000.00)], an extension/commitment fee, of One Hundred Thousand
and no/100 Dollars ($100,000.00) for the extension of the maturity dates of
the Loans, the previous commitment fees having been paid in consideration of
the Bank's agreement to make additional funds available to Borrower under the
terms and provisions hereof from the Closing Date until the initial
Termination Date of Revolving Credit Loan specified in Section 1 hereof. In
addition to the commitment fee, on each November 2 hereafter, the Borrower
shall pay to the Bank a servicing fee in the amount of Twenty Four Thousand
and NO/100 Dollars ($24,000.00) for the Bank's services in connection with
administering the Loan participation with Participant. The servicing fee
shall belong solely to the Bank and the Participant shall have no interest
therein. Borrower agrees that the commitment fees and servicing fee are fair
and reasonable considering the condition of the money market, the
creditworthiness of Borrower, the interest rate to be paid, and the nature
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of the security for the Loan. In the event that Borrower and Bank shall
hereafter mutually agree to extend the term of the Bank's commitment
hereunder, they may also agree at that time as to an additional commitment
fee, if any, to be paid for such further commitment by the Bank, but not to
exceed the maximum permitted by applicable law.
2.5 BORROWINGS UNDER, PREPAYMENTS OR TERMINATION OF THE REVOLVING
CREDIT LOAN. The Borrower may, at its option, from time to time, subject to
the terms and conditions hereof including Section 2.8 hereof, without
penalty, borrow, repay and reborrow amounts under the Revolving Credit Note
and the Lakeshore Note, first from the Ten Million Six Hundred Thousand
Dollars ($10,600,000.00) Note, then from the Forty Nine Million Dollars
($49,000,000.00) Note, then from the Lakeshore Note and principal payments
received shall be applied by the Bank to the Revolving Credit Note and the
Lakeshore Note in such order and amounts as the Bank deems appropriate in its
sole discretion. Neither the Borrower nor Lakeshore shall be permitted to
borrow, repay and reborrow up to the principal amounts of the Lakeshore Note
unless documentary stamps tax and intangibles tax, required by law to be
paid, has been paid on the amounts readvanced and unless the Bank has a first
in priority mortgage on the Florida property owned by Lakeshore securing the
Lakeshore Note.
By notice to the Bank in writing, Borrower shall be entitled to
terminate the Bank's commitment to make further advances on the Revolving
Credit Loan; and provided that the Revolving Credit Loan and all interest and
all other obligations of Borrower to Bank arising hereunder shall have been
paid in full, Bank shall thereupon at Borrower's request release its security
interest in all of Borrower's Property securing the Revolving Credit Loan.
2.6 SUBSTITUTION OF COLLATERAL. Upon the Bank's prior written
approval, the Borrower may substitute collateral originally provided for the
Revolving Credit Loan for collateral of equal value but such substituted
collateral must be acceptable to the Bank and the acceptance thereof is
solely within the discretion of the Bank.
2.7 SECONDARY FINANCING BY CBL PROPERTIES, INC. CBL Properties, Inc.
was formerly the general partner of the Borrower. It is also a real estate
investment trust. In the event CBL Properties, Inc. does any secondary
offering of its securities, it will apply no less than 75% net of expenses
of the monies received from such offering for the benefit of the Borrower and
will not use that percentage of funds so received to capitalize or otherwise
fund any other new partnerships or entities.
2.8 CAP ON LOAN. Notwithstanding anything contained in this Loan
Agreement to the contrary, if at any time the Bank does not have a first-in-
priority lien on the Florida property (Lakeshore Mall) pursuant to the
Lakeshore Mortgage up to the sum of Thirty One Million Dollars
($31,000,000.00) the Loan shall be capped at Forty Nine Million Dollars
($49,000,000.00).
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SECTION 3: REQUIRED PAYMENTS, PLACE OF PAYMENT, ETC.
3.1 REQUIRED REPAYMENTS. In the event that the outstanding aggregate
principal balance of the Revolving Credit Loan shall at any time exceed the
Borrowing Base, upon discovery of the existence of such excess borrowings,
the Borrower shall, within one hundred twenty (120) days from the date of
such discovery, make a principal payment which will reduce the outstanding
principal balance of the Revolving Credit Loan to an amount which does not
exceed the Borrowing Base and/or at Borrower's option provide the Bank with
additional collateral for the Revolving Credit Loan of a value and type
reasonably satisfactory to the Bank which additional collateral shall be at
a minimum sufficient to secure the then outstanding balance of the Loan
(after credit for any principal reduction payment received from Borrower, if
any), and if Borrower intends to request additional advances under the Loan,
the additional collateral shall include collateral, deemed sufficient in the
Bank's discretion, to secure the Eighty Million Dollars ($80,000,000.00)
credit line limitation, thereafter permitting Borrower to obtain additional
advances in the manner and to the extent provided under the terms of this
Loan Agreement.
In addition and during such one hundred twenty (120) day period or
until the principal payment or satisfactory collateral is received, whichever
is less, the Borrower will not make any additional requests for advances
under the Revolving Credit Loan. Once calculated, the Borrowing Base shall
remain effective until the next Borrowing Base calculation date as provided
in Section 1 of this Agreement.
3.2 PLACE OF PAYMENTS. All payments of principal and interest on the
Revolving Credit Loan and all payments of fees required hereunder shall be
made to the Bank, at its address listed in Section 9.2 of this Agreement in
immediately available funds.
3.3 PAYMENT ON NON-BUSINESS DAYS. Whenever any payment of principal,
interest or fees to be made on the indebtednesses evidenced by the Note shall
fall due on a Saturday, Sunday or public holiday under the laws of the State
of Tennessee, such payment shall be made on the next succeeding business day.
SECTION 4: CONDITIONS OF LENDING
4.1 CONDITIONS PRECEDENT TO CLOSING AND FUNDING INITIAL ADVANCE. The
obligation of the Bank to fund the initial Revolving Credit Loan Advance
hereunder is subject to the condition precedent that the Bank shall have
received, on or before the Closing Date, all of the following in form and
substance satisfactory to the Bank:
(a) This Loan Agreement.
(b) The Note, which Bank acknowledges it has previously received.
(c) The Lakeshore Note, which Bank acknowledges it has previously
received.
(d) The CBL Mortgage, the Lakeshore Mortgage together with a title
commitment from a title insurance company acceptable to the Bank, providing
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for the issuance of a mortgagee's loan policy insuring the lien of the CBL
Mortgage in form, substance and amount satisfactory to the Bank, containing
no exceptions which are unacceptable to the Bank, and containing such
endorsements as the Bank may require; provided, however, with respect to the
Florida (Lakeshore Mall) and Mississippi (Pemberton Mall) properties being
added as collateral for the Loan, the Bank, in its sole discretion may
require only a title report and may not require the issuance of a mortgagee's
loan policy. The Bank acknowledges it has received all of the foregoing
items except the Lakeshore Mortgage amendment to include portions of the
Lakeshore Mall parking lot previously omitted from the Florida Mortgage and
the related title policy endorsement.
(e) Current financial statements of the Borrower in form satisfactory
to the Bank to be held by the Bank in strict confidence.
(f) Certified copy of Borrower's limited partnership agreement and
certificate of limited partnership, and all amendments thereto and a
certificate of existence for the Borrower, which the Bank acknowledges it has
previously received.
(g) Certified corporate resolutions of Borrower's general partner, and
certificate(s) of existence for Borrower's general partner from the state of
its incorporation and such other states as Bank shall require, together with
a copy of the charter and bylaws of the Borrower's general partner.
(h) The opinion of counsel for Borrower and the Borrower's general
partner, that the transactions herein contemplated have been duly authorized
by all requisite corporate and partnership authority, that this Loan
Agreement and the other instruments and documents herein referred to have
been duly authorized, validly executed and are in full force and effect, and
pertaining to such other matters as the Bank may require.
(i) A certificate from an insurance company, satisfactory to Bank,
setting forth the information concerning insurance which is required by
Section 6.3 of this Loan Agreement; or, if the Bank shall so require,
certified copies of the original insurance policies evidencing such
insurance, all of which the Bank acknowledges it has previously received.
(j) Environmental audits of the properties described in the CBL
Mortgage, which the Bank acknowledges it has previously received.
(k) Current surveys of the property subject to the CBL Mortgage,
indicating the location of all building lines, easements (visible, reflected
in the public records or otherwise) and any existing improvements or
encroachments, which survey shall contain no set of facts objectionable to
the Bank and shall be accompanied by the Bank's usual survey certificate, all
of which the Bank has previously received.
(l) Copies of the appraisals of the real estate described in
EXHIBIT "A" attached hereto, all of which the Bank has previously received.
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(m) The Guaranty Agreements of the Borrower guarantying the Lakeshore
Note and of CBL Properties, Inc. guarantying the Loan, all of which the Bank
has previously received.
(n) All the items and information shown on the Checklist for Closing,
a copy of which is attached hereto and marked EXHIBIT "D".
4.2 CONDITIONS PRECEDENT TO ALL REVOLVING CREDIT LOAN ADVANCES. The
obligation of the Bank to make Revolving Credit Advances pursuant hereto
(including the initial advance at the Closing Date) shall be subject to the
following additional conditions precedent:
(a) The Borrower shall have furnished to the Bank a written request
stating the amount of Revolving Credit Advance requested together with the
intended use of the advance.
(b) The Borrower and Lakeshore shall not be in default of any of the
terms and provisions hereof or of any instrument or document now or at any
time hereafter evidencing or securing all or any part of the Revolving Credit
Loan indebtednesses. Each of the Warranties and Representations of the
Borrower and Lakeshore, as set out in Section 5 hereof shall remain true and
correct in all material respects as of the date of such Loan advance.
(c) Within forty-five (45) days after each July 1, January 1, April
1 and October 1, Borrower shall furnish to the Bank a Non-Default Certificate
executed by a duly authorized officer of Borrower, in the form of EXHIBIT "E"
attached hereto.
(d) The Borrower shall have furnished to the Bank an updated and
current title report with respect to the property or properties covered by
any CBL Mortgage held by the Bank. If any lien shall have been placed on the
property subsequent to the date of this Agreement or the applicable CBL
Mortgage, other than liens in favor of the Bank, no additional advances shall
be made.
SECTION 5: REPRESENTATIONS AND WARRANTIES
Borrower and Lakeshore represent and warrant that:
5.1 PARTNERSHIP STATUS. The Borrower is a limited partnership duly
organized, validly existing and in good standing under the laws of the State
of Delaware; it has the power and authority to own its properties and assets
and is duly qualified to carry on its business in every jurisdiction wherein
such qualification is necessary. Lakeshore is a limited partnership duly
organized, validly existing and in good standing under the laws of the State
of Florida; it has the authority to own its properties and assets and is duly
qualified to carry on its business in every jurisdiction wherein such
qualification is necessary. Lakeshore is a wholly owned subsidiary of the
Borrower.
5.2 POWER AND AUTHORITY. The execution, delivery and performance of
the Loan Agreement, the Note, the CBL Mortgage and the other loan and
collateral documents executed pursuant thereto by the Borrower and/or
Lakeshore have been duly authorized by all requisite action and, to the best
of Borrower's and Lakeshore's knowledge, will not violate any provision of
law, any order of any court or other agency of government, the limited
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partnership agreement of the Borrower or Lakeshore, any provision of any
indenture, agreement or other instrument to which Borrower and/or Lakeshore
is a party, or by which Borrower's and/or Lakeshore's respective properties
or assets are bound, or be in conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under any
such indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of Borrower and/or Lakeshore, except for
liens and other encumbrances provided for and securing the indebtedness
covered by this Loan Agreement.
5.3 FINANCIAL CONDITION. (a) (i) The audited balance sheet of
Borrower and Lakeshore for the fiscal year ended as of December 31, 1997, and
the related statement of income and changes in financial conditions for the
year then ended, and (ii) the unaudited interim balance sheet of Borrower and
Lakeshore for March 30, 1998 and the related statement of income and changes
in financial conditions for the period then ended, a copy of each of which
has been furnished to the Bank, together with any explanatory notes therein
referred to and attached thereto, are correct and complete and fairly present
the financial condition of Borrower and Lakeshore as at the date of said
balance sheets and the results of its operations for said periods and as of
the date of closing of this Loan Agreement and related transactions,
respectively. All such financial statements have been prepared in accordance
with Generally Accepted Accounting Principles applied on a consistent basis
maintained through the period involved.
(b) There has been no substantial adverse change in the business,
properties or condition, financial or otherwise, of Borrower and/or Lakeshore
since March 30, 1998.
(c) (i) The audited balance sheet of CBL Properties, Inc. for the
fiscal year ended as December 31, 1997, the unaudited balance sheet of CBL
Properties, Inc. for the period ended March 30, 1998, and the related
statement of income and changes in financial conditions for the year ended
1997 and the period ended March 30, 1998, a copy of which has been furnished
to the Bank, together with any explanatory notes therein referred to and
attached thereto, are correct and complete and fairly present the financial
condition of CBL Properties, Inc. as at the date of said balance sheets and
the results of its operations for said periods and as of the date of closing
of this Loan Agreement and related transactions, respectively. All such
financial statements have been prepared in accordance with Generally Accepted
Accounting Principles applied on a consistent basis maintained through the
period involved.
(d) There has been no substantial adverse change in the business,
properties or condition, financial or otherwise, of CBL Properties, Inc.
since March 30, 1998.
(e) The warranties and representations made in this Section 5.3 are
and were made as of the date of this Loan Agreement and any violation thereof
shall be determined as of that date.
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5.4 TITLE TO ASSETS. Borrower and Lakeshore have good and marketable
title to all its properties and assets reflected on the most recent balance
sheet furnished to Bank subject to the Permitted Encumbrances with respect
to the properties described in the CBL Mortgages and subject to all
encumbrances, whether of record or not, with respect to all other properties.
5.5 LITIGATION. There is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or other agency now
pending, or, to the knowledge of the Borrower and Lakeshore threatened
against or affecting Borrower and/or Lakeshore, or any properties or rights
of Borrower and/or Lakeshore, which, if adversely determined, would
materially adversely affect the financial or any other condition of Borrower
and/or Lakeshore except as set forth in EXHIBIT "F" attached hereto.
5.6 TAXES. Borrower and Lakeshore have filed or caused to be filed
all federal, state or local tax returns which are required to be filed, and
has paid all taxes as shown on said returns or on any assessment received by
it, to the extent that such taxes have become due, except as otherwise
permitted by the provisions hereof.
5.7 CONTRACTS OR RESTRICTIONS. In Borrower's and Lakeshore's opinions,
Borrower and Lakeshore are not a party to any agreement or instrument or
subject to any partnership agreement restrictions adversely affecting its
business, properties or assets, operations or condition (financial or
otherwise) other than this agreement, other bank loan or property partnership
agreements that contain certain restrictive covenants or other agreements
entered into in the ordinary course of business.
5.8 NO DEFAULT. No Event of Default (as defined herein) has occurred
and not been waived under any agreement or instrument to which it is a party
beyond the expiration of any applicable notice and cure period, which default
if not cured would materially and substantially affect the financial
condition, property or operations of the Borrower and/or Lakeshore. For the
purposes of this Paragraph 5.8, monetary defaults specifically excepted under
the provisions of Paragraph 8.2 (which excludes non-recourse debt) below
shall not be deemed material defaults.
5.9 PATENTS AND TRADEMARKS. Borrower and Lakeshore possess all
necessary patents, trademarks, trade names, copyrights, and licenses
necessary to the conduct of its businesses.
5.10 ERISA. To the best of Borrower's and Lakeshore's knowledge and
belief, Borrower is in compliance with all applicable provisions of the
Employees Retirement Income Security Act of 1974 ("ERISA") and all other
laws, state or federal, applicable to any employees' retirement plan
maintained or established by it.
5.11 HAZARDOUS SUBSTANCES. No Hazardous Substances are unlawfully
located on or have been unlawfully stored, processed or disposed of on or
unlawfully released or discharged (including ground water contamination) from
any property owned by Borrower and/or Lakeshore which is encumbered by the
CBL Mortgage and no above or underground storage tanks exist unlawfully on
such property. No private or governmental lien or judicial or administrative
notice or action related to Hazardous Substances or other environmental
matters has been filed against any property which, if adversely determined,
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would materially adversely affect the business, operations or the financial
condition of Borrower and/or Lakeshore except as set forth in EXHIBIT "F"
attached hereto.
5.12 OWNERSHIP OF BORROWER. As of the date hereof, CBL Holdings I
owns an approximate 2.8% general partner interest in the Borrower and CBL
Holdings II owns a 69% limited partner interest in the Borrower. As of the
date hereof, CBL Properties, Inc. does not own a direct interest in Borrower;
however, it owns 100% of the stock of CBL Holdings I and CBL Holdings II.
As of the date hereof, CBL & Associates, Inc. and its affiliates, officers
and key employees own an approximate 28% limited partner interest in the
Borrower. As of the date hereof, CBL Management, Inc. owns no interest in
the Borrower. The Borrower has no other general partners. As of the date
hereof the Borrower and its Affiliates own 100% of the partnership interests
in Lakeshore.
5.13 OUTSTANDING BALANCE ON LAKESHORE NOTE. As of the date hereof, the
outstanding unpaid principal balance of the Lakeshore Note is $18,000,000.00
and the undisbursed amount of the Lakeshore Note is $2,400,000.00 and no
defenses or offsets exist against the holder of the Lakeshore Note or
otherwise.
SECTION 6: AFFIRMATIVE COVENANTS OF BORROWER AND LAKESHORE
Borrower and Lakeshore covenant and agree that from the date hereof and
until payment in full of the principal of and interest on indebtednesses
evidenced by the Note and the Lakeshore Note, unless the Bank shall otherwise
consent in writing, such consent to be at the discretion of the Bank,
Borrower and Lakeshore will:
6.1 BUSINESS AND EXISTENCE. Perform all things necessary to preserve
and keep in full force and effect its existence, rights and franchises,
comply with all laws applicable to it and continue to conduct and operate its
business in a sound and prudent manner.
6.2 MAINTAIN PROPERTY. Maintain, preserve, and protect all leases,
franchises, and trade names and preserve all of its properties used or useful
in the conduct of its business in a sound and prudent manner, keep the same
in good repair, working order and condition, ordinary wear and tear excepted,
and from time to time make, or cause to be made, all needed and proper
repairs, renewals, replacements, betterments and improvements thereto so that
the business carried on in connection therewith may be properly conducted at
all times.
6.3 INSURANCE. (a) With respect to all of the Property which serves
as collateral for the Loan, at all times maintain in some company or
companies (having a Best's rating of A:XI or better) approved by Bank:
(i) Comprehensive public liability insurance covering claims for
bodily injury, death, and property damage, with minimum limits
satisfactory to the Bank, but in any event not less than those amounts
customarily maintained by companies in the same or substantially
similar business;
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(ii) Business interruption insurance and/or loss of rents
insurance in a minimum amount specified by Bank, with loss payable
clause in favor of Bank;
(iii) Hazard insurance insuring Borrower's and Lakeshore's
property and assets against loss by fire (with extended coverage) and
against such other hazards and perils (including but not limited to
loss by windstorm, hail, explosion, riot, aircraft, smoke, vandalism,
malicious mischief and vehicle damage) as Bank, in its sole discretion,
shall from time to time require, all such insurance to be issued in
such form, with such deductible provision, and for such amount as shall
be satisfactory to Bank, with loss payable clause in favor of Bank.
The Bank is hereby authorized and empowered, at its option, to adjust
or compromise any loss under any such insurance policies and to collect
and receive the proceeds from any such policy or policies as provided
in the CBL Mortgage; and
(iv) Such other insurance as the Bank may, from time to time,
reasonably require by notice in writing to the Borrower and/or to
Lakeshore.
(b) All required insurance policies shall provide for not less than
thirty (30) days' prior written notice to the Bank of any cancellation,
termination, or material amendment thereto; and in all such liability
insurance policies, Bank shall be named as an additional insured. Each such
policy shall, in addition, provide that there shall be no recourse against
the Bank for payment of premiums or other amounts with respect thereto.
Hazard insurance policies shall contain the agreement of the insurer that any
loss thereunder shall be payable to the Bank notwithstanding any action,
inaction or breach of representation or warranty by the Borrower and/or
Lakeshore. The Borrower and Lakeshore will deliver to Bank original or
duplicate policies of such insurance, or satisfactory certificates of
insurance, and, as often as Bank may reasonably request, a report of a
reputable insurance broker with respect to such insurance. Any insurance
proceeds received by Bank shall be applied upon the indebtednesses,
liabilities, and obligations of the Borrower to the Bank (whether matured or
unmatured) or, at Bank's option, released to the Borrower or Lakeshore, as
the case might be.
6.4 OBLIGATIONS, TAXES AND LIENS. Pay all of its indebtednesses and
obligations in accordance with normal terms and practices of its business and
pay and discharge or cause to be paid and discharged all taxes, assessments,
and governmental charges or levies imposed upon it or upon any of its income
and profits, or upon any of its properties, real, personal or mixed, or upon
any part thereof, before the same shall become in default, as well as all
lawful claims for labor, materials, and supplies which otherwise, if unpaid,
might become a lien or charge upon such properties or any part thereof;
provided, however, that the Borrower shall not be required to pay and
discharge or to cause to be paid and discharged any such indebtedness,
obligation, tax, assessment, trade payable, charge, levy or claim so long as
the validity thereof shall be contested in good faith by appropriate
proceedings satisfactory to Bank, and Bank shall be furnished, if Bank shall
so request, bond or other security protecting it against loss in the event
that such contest should be adversely determined. In addition, Borrower and
Lakeshore shall immediately pay, upon the request of the Bank, all mortgage
and/or intangible taxes and/or penalties payable to government officials with
respect to any CBL Mortgage and/or the Note or, if Bank has elected to pay
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same, Borrower shall immediately reimburse Bank therefor upon the request of
the Bank; provided, however Borrower shall not be required to pay or
reimburse so long as Borrower is contesting the tax and/or penalties in good
faith and through continuous and appropriate proceedings.
6.5 FINANCIAL REPORTS AND OTHER DATA. Furnish to the Bank as soon as
available: (a) and in any event within ninety (90) days after the end of each
fiscal year of Borrower and Lakeshore, respectively, an unqualified audit as
of the close of such fiscal year of Borrower and Lakeshore, including a
balance sheet and statement of income and surplus of Borrower and Lakeshore
together with the unqualified audit report and opinion of Arthur Andersen
Company, Certified Public Accountant, or other independent Certified Public
Accountant which is widely recognized and of good national repute or which
is otherwise acceptable to the Bank, showing the financial condition of
Borrower at the close of such year and the results of operations during such
year; and, (b) within forty-five (45) days after the end of each fiscal
quarter, (i) financial statements similar to those described above for
Borrower and for CBL Properties, Inc., not audited but certified by the Chief
Financial Officer or Controller of Borrower and CBL Properties, Inc., as the
case may be, such balance sheets to be as of the end of such quarter and such
statements of income and surplus to be for the period from the beginning of
said year to the end of such quarter, in each case subject only to audit and
year-end adjustment and the preparation of required footnotes; and (ii) a
Non-Default Certificate in the form prescribed on EXHIBIT "E" Attached hereto
and made a part hereof; and, (c) within thirty (30) days after the end of
each fiscal quarter, rent rolls and operating statements related to the
properties described in the CBL Mortgage; and, (d) simultaneously with the
inclusion of Net Operating Income (loss) from Newly Acquired Property in any
financial calculation provided for in this Loan Agreement, a current rent
roll and a current income and expense statement, similar to those described
above, not audited but certified by the Chief Financial Officer or Controller
of Borrower and CBL Properties, Inc., as the case may be, such rent roll and
statement of income and expense to be for the twelve (12) month period used
in any such calculation and/or to also be for the period from the beginning
of said year to the end of such quarter, as the case may be.
6.6 ADDITIONAL INFORMATION. Furnish such other information regarding
the operations, business affairs and financial condition of the Borrower
and/or Lakeshore as Bank may reasonably request, including but not limited
to written confirmation of requests for loan advances, true and exact copies
of its books of account and tax returns, and all information furnished to the
owners of its partnership interests, or any governmental authority, and
permit the copying of the same and Bank agrees that all such information
shall be maintained in strict confidence. Provided, however, the Borrower
and Lakeshore shall not be required to divulge the terms of other financing
arrangements with other lending institutions if and to the extent Borrower
and/or Lakeshore is prohibited by contractual agreement with such lending
institutions from disclosing such information with the exception that
Borrower and Lakeshore shall promptly notify Bank in writing of all defaults,
if any, which exist beyond any applicable cure periods and the nature
thereof, which occur in connection with such financing arrangements and which
defaults would constitute an Event of Default hereunder. Borrower and
Lakeshore shall not enter into any such contractual arrangement whereby the
Borrower or Lakeshore is prohibited from disclosing such financial
arrangements, without providing Bank with written notice of the nature of
such prohibitions. In addition, Borrower and Lakeshore shall not enter into
any such arrangement while any Event of Default hereunder exists beyond any
applicable cure periods.
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6.7 RIGHT OF INSPECTION. Permit any person designated by the Bank,
at the Bank's expense, to visit and inspect any of the properties, books and
financial reports of the Borrower and Lakeshore and to discuss its affairs,
finances and accounts with its principal officers, at all such reasonable
times and as often as a Bank may reasonably request provided that such
inspection shall not unreasonably interfere with the operation and conduct
of Borrower's and/or Lakeshore's properties and business affairs and provided
further that such person shall disclose such information only to the Bank,
the Bank's appraisers and examiners as required by banking laws, rules and
regulations.
6.8 ENVIRONMENTAL LAWS. Maintain at all times all of Borrower's and
Lakeshore's property described in the CBL Mortgage in compliance with all
applicable Environmental Laws, and immediately notify the Bank of any notice,
action, lien or other similar action alleging either the location of any
Hazardous Substances or the violation of any Environmental Laws with respect
to any of such properties.
6.9 NOTICE OF ADVERSE CHANGE IN ASSETS. At the time of Borrower's
and/or Lakeshore's first knowledge or notice, immediately notify the Bank of
any information that may adversely affect in any material manner the
properties of the Borrower and/pr Lakeshore which are subject to the CBL
Mortgage.
6.10 MINIMUM NET WORTH. Borrower shall not permit Net Worth at any
time to be less than an amount equal to $410,000,000.00 plus ninety percent
(90%) of the net proceeds or value (whether cash, property or otherwise)
received by CBL Properties, Inc. or Borrower from any issuance after the
effective date of this Loan Agreement of any shares of Capital Stock of CBL
Properties, Inc., any operating partnership units of Borrower or any shares
of Capital Stock or other equity interest in any Subsidiary of Borrower.
6.11 TOTAL OBLIGATIONS TO CAPITALIZED VALUE. Maintain at all times
(except as herein permitted) beginning on the Closing Date, a ratio of Total
Obligations to Capitalized Value of not more than .60 to .65; provided
however, as of the end of the Borrower's second (2nd) and fourth (4th) fiscal
quarters, the Bank, in its sole discretion and consistent with trends in the
real estate market, may adjust the Capitalized Value cap rates of nine and
one half percent (9.5%) for Non- Mall Projects and eight and one half
percent (8.5%) for Mall Projects. If the cap rate is adjusted by the Bank,
the Borrower shall not be deemed out of compliance with any covenants
affected by the adjustment until the end of the quarter following the
effective date of the adjustment.
6.12 APPRAISALS. Deliver to the Bank upon the Bank's request but, for
each property, no more frequently than once per every eighteen (18) month
period, reappraisals of the property or properties described in the CBL
Mortgage.
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6.13 INTEREST COVERAGE RATIO. Borrower shall not permit, as of the
last day of any fiscal quarter, the Interest Coverage Ratio to be less than
2.00 to 1.00.
6.14 DEBT COVERAGE RATIO. Borrower shall not permit, as of the last
day of any fiscal quarter of Borrower, the Debt Coverage Ratio to be less
than 1.75 to 1.00.
6.15 AGREEMENTS REGARDING LAKESHORE NOTE AND LAKESHORE MORTGAGE. So
long as no Event of Default then exists or with notice or lapse of time would
exist, upon the request of the Borrower, but in the Bank's discretion, the
Bank shall sell to the Borrower and/or the Borrower's designated subsidiary,
the Lakeshore Note and/or the Lakeshore Mortgage for the balance due under
the Lakeshore Note (the "Lakeshore Principal Balance") plus accrued interest.
SECTION 7: NEGATIVE COVENANTS OF BORROWER AND LAKESHORE
Borrower and Lakeshore covenant and agree that at all times from and
after the Closing Date, unless the Bank shall otherwise consent in writing,
such consent to be at the discretion of the Bank, Borrower and Lakeshore will
not, either directly or indirectly:
7.1 INDEBTEDNESS. Incur, create, assume or permit to exist any
indebtedness or liability, secured by any of the properties described in the
CBL Mortgage, (except with respect to the Borrower only) for indebtedness,
which is subordinate in all respects to the indebtedness evidenced by the
Note, which indebtedness does not exceed Two Hundred Fifty Thousand Dollars
($250,000.00) in the aggregate per property and is used for renovation of the
property or properties described in the CBL Mortgage.
7.2 MORTGAGES, LIENS, ETC. Create, assume or suffer to exist any
mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever
on any of the properties subject to the CBL Mortgage except:
(a) Liens in favor of the Bank securing payment of the Note and/or the
Lakeshore Note;
(b) Existing liens securing indebtednesses permitted under Section 7.1
above;
(c) Permitted Encumbrances (as defined at Section 1); and
(d) Liens securing indebtedness permitted under Section 7.1 above.
7.3 SALE OF ASSETS. Sell, lease, convert, transfer or dispose (other
than in the normal course of business) of all or a substantial part of its
assets for less than book value or fair market consideration without the
Bank's prior written consent; provided, however, while the Revolving Credit
Loan is outstanding, the Borrower and Lakeshore may not sell in a single
transaction or related series of transactions properties whose GAAP base
value exceeds twenty percent (20%) of the GAAP book value of the Borrower's
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assets, without the Bank's approval or review. All transfers, whether or not
the Bank's approval shall be required as set forth above, shall be reported
to the Bank.
7.4 CONSOLIDATION OR MERGER; ACQUISITION OF ASSETS. Enter into any
transaction of merger or consolidation, acquire any other business or
corporation, or acquire all or substantially all of the property or assets
of any other Person unless the Borrower and/or its general partner shall be
the surviving entities.
7.5 PARTNERSHIP DISTRIBUTIONS AND OTHER PAYMENTS. Except as
hereinafter provided, declare or pay, or set apart any funds for the payment
of, any distributions on any partnership interest in Borrower and/or
Lakeshore, or apply any of its funds, properties, or assets to or set apart
any funds, properties or assets for, the purchase or other retirement of or
make any other distribution (whether by reduction of partnership capital or
otherwise) in respect of, any partnership interest in Borrower and/or
Lakeshore; or without the consent of Bank, pay any fee or other compensation
of any nature to or for the benefit of CBL & Associates, Inc., CBL Holdings,
and/or CBL Properties, Inc. and/or their affiliates, officers or key
employees (the "Distributees"). Notwithstanding anything stated in the
foregoing to the contrary, (a) Borrower may pay to such Distributees and its
other partners quarterly distributions so long as such distributions do not
exceed in the aggregate 95% of Funds from Operations and (b) Borrower may pay
any fee or other reasonable compensation of any nature to or for the benefit
of (i) CBL Management, Inc., or (ii) any other Distributee, which payment has
been made in the ordinary course of business and approved by the independent
directors of CBL Holdings. Borrower may make a distribution from Loan
proceeds but only once during any rolling twelve (12) month period and
provided Borrower is not in default hereunder and such distribution will not
create a default hereunder.
7.6 LOANS TO OFFICERS AND EMPLOYEES. Permit or allow loans to
officers and employees of Borrower or holders of partnership interests in
Borrower to exceed $500,000.00 in any one instance or $2,000,000.00 in the
aggregate, provided that nothing in the foregoing shall be deemed to limit
loans made in the ordinary course of business to CBL Properties Management,
Inc.
7.7 LIMITATIONS ON FLOATING RATE INDEBTEDNESS. Incur, assume or
suffer to exist any outstanding indebtedness bearing interest at a variable
rate that fluctuates during the scheduled life of such indebtedness (other
than indebtedness under Reserved Construction Loans, as that term is defined
hereinafter) in an aggregate principal amount in excess of $175,000,000.00
at any one time outstanding unless Borrower has obtained an interest rate
swap, cap or collar agreement or similar arrangement with a recognized
investment grade financial institution which prevents the all-in effective
interest rate payable by Borrower with respect to the principal amount of
such indebtedness in excess of $175,000,000.00 (including base rate,
applicable margin and reserve and similar costs) from increasing above the
rate set forth below with respect to such indebtedness:
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Principal Amount in
Excess of $175,000,000.00 Interest Rate
Less than or equal
to $50,000,000.00 8.5%
Greater than
$50,000,000.00 and
less than or equal
to $100,000,000.00 8.0%
Greater than
$100,000,000.00 and
less than or equal
to $150,000,000.00 7.5%
Greater than
$150,000,000.00 7.0%
For purposes of this Loan Agreement, "Reserved Construction Loan"
shall mean a construction loan extended to Borrower or Lakeshore or to a
subsidiary of Borrower for the construction of a project in respect to which
(a) neither any monetary or material non-monetary default nor any event of
default exists; (b) interest on such loan has been budgeted to accrue at a
rate of not less than the Base Rate plus two percent (2%) at the time the
interest reserve account is established; (c) the amount of such budgeted
interest has been (i) included in the principal amount of such loan and (ii)
segregated into an interest reserve account (which shall include any
arrangement whereby loan proceeds equal to such budgeted interest are
reserved and only disbursed to make interest payments with respect to such
loan); (d) absent an event of default or a monetary or material non-monetary
default, such interest can be paid out of such interest reserve account only
for the purpose of making interest payments on such loan; (e) the amount held
in such interest reserve account with respect to such loan, together with the
net income, if any, from such project projected by the Bank in its reasonable
judgment, will be sufficient, as reasonably determined by the Bank from time
to time, to pay all interest expense on such loan until the date that the
earnings before income, taxes, depreciation and amortization of the project
being financed by such loan is anticipated to be sufficient to pay all
interest expense on such loan; and (f) Borrower has delivered all
certificates required by this Loan Agreement.
7.8 LIMITATIONS ON ACTIONS AGAINST BANK AND PARTICIPANTS. Take any
action against:
(a) Bank, if any Participant fails or refuses to fund for the account
of Borrower and/or Lakeshore or to Bank for the benefit of Borrower and/or
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Lakeshore, such Participant's respective Proportionate Share and such failure
or refusal has not been caused by Bank's breach of this Loan Agreement; or
(b) any Participant, if Bank fails or refuses to fund for the account
of Borrower and/or Lakeshore any Participant's Proportionate Share, to the
extent such Participant's Proportionate Share has been received by Bank; or
(c) any Participant, if Bank fails or refuses to fund for the account
of Borrower and/or Lakeshore Bank's Proportionate Share and such failure has
not been caused by such Participant's breach of this Loan Agreement or the
Participation Agreement. Borrower's and Lakeshore's cause of action under
this Loan Agreement, if any, for failure to fund being directly against the
lender which fails or refuses to fund, and then only if such failure or
refusal to fund would constitute a breach of this Loan Agreement.
7.9 INVESTMENT CONCENTRATION. (a) Borrower shall not make, and shall
not permit any of its Subsidiaries to make, any Investment in the following
items which would cause the value of such holdings of Borrower and/or to
exceed the following percentages of Borrower's Net Worth:
(i) raw land, such that the aggregate book value of all such raw
land (other than: (A) raw land subject to a ground lease under which
Borrower is the landlord and a Person not an Affiliate of Borrower is the
tenant; (B) land on which the development of a Project has commenced; (C)
land subject to a binding contract of sale under which Borrower one of its
Subsidiaries is the seller, the buyer is not an Affiliate of Borrower and (D)
out-parcels held for lease or sale) exceeds ten percent (10%) of Net Worth;
(ii) developed real estate used primarily for non-retail
purposes, such that the aggregate book value of such real estate (other than
the real estate located at 6148 Lee Highway, Chattanooga, Tennessee) exceeds
ten percent (10%) of Net Worth;
(iii) Capital Stock of any Person, such that the aggregate value
of such Capital Stock in Unconsolidated Affiliates other than CBL Management,
Inc., calculated on the basis of the lower of cost or market, exceeds ten
percent (10%) of Net Worth;
(iv) Mortgages, such that the aggregate principal amount secured
by Mortgages acquired by Borrower after the Effective Date exceeds ten
percent (10%) of Net Worth;
(v) Investments made after the date hereof in partnerships,
joint ventures and other non-corporate Persons accounted for an equity basis
(determined in accordance with GAAP), such that the aggregate outstanding
amount of such Investments (other than Investments in partnerships in which
(A) Borrower is the sole general partner and the only limited partners are
either (I) the Person from whom the real estate owned by such partnership was
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purchased, and such Person's successors and assigns or (II) a Person
operating stores which anchor the development constructed or to be
constructed by such partnership or (B) Borrower owns not less than ninety
percent (90%) of the partnership interests and has the unilateral right to
make all operational and strategic decisions) exceeds ten percent (10%) of
Net Worth.
(b) Neither Borrower nor any of its Subsidiaries shall acquire the
business of all or substantially all of the assets or stock of any Person,
or any division of any Person, whether through Investment, purchase of
assets, merger or otherwise; provided that Borrower or its Subsidiaries may
make such an acquisition so long as Borrower has delivered to Agent, not less
than thirty (30) days prior to the date such acquisition is consummated, (i)
all information related to such acquisition as is reasonably requested by the
Agent and (ii) a certificate, signed by the chief financial officer of
Borrower, certifying that, giving effect to such acquisition, there shall not
exist any Default or Event of Default hereunder and setting forth in
reasonable detail the calculations setting forth, on a pro forma basis giving
effect such acquisition, Borrower's compliance with Sections 6.8, 6.11, 6.12,
6.13, 6.14, 6.15, 6.17 or 6.18 of the loan documents which exist between
Borrower and Agent.
SECTION 8: EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following shall occur:
8.1 PAYMENT OF PRINCIPAL, INTEREST TO BANK. The Borrower and/or
Lakeshore defaults in the payment as and when due of principal or interest
on any Note or the Lakeshore Note or any fees due under this Loan Agreement
which default shall continue for more than ten (10) days following mailing
of notice from Bank to Borrower and/or Lakeshore thereof; or the Borrower
and/or Lakeshore defaults in the payment when due of any other recourse
indebtednesses, liabilities, or obligations to the Bank beyond the expiration
of any applicable notice and cure period, whether now existing or hereafter
created or arising; direct or indirect, absolute or contingent; or
8.2 PAYMENT OF OBLIGATIONS TO OTHERS. The Borrower and/or Lakeshore
defaults in the payment as and when due of any other indebtedness or
obligation but only if: (a) such indebtedness or obligation is with recourse
to the Borrower and/or Lakeshore; and (b) the effect of such default is to
accelerate the maturity of such indebtedness or obligation, or the effect of
such default is to permit the holder thereof to cause such indebtedness or
obligation to become due prior to its stated maturity; and (c) the default
is not cured within the applicable cure period, if any, or subsequently
waived by the lender to whom payment is owed. Provided, however, even if
such indebtedness or obligation is with recourse to the Borrower and/or
Lakeshore, the Borrower and Lakeshore will not be considered in default
hereunder if the default is either: (a) a monetary default which does not
exceed One Million Dollars ($1,000,000.00) and is not a failure to pay a
normal monthly, quarterly or other periodic principal or interest installment
due; or, (b) is being contested by the Borrower and/or Lakeshore in good
faith through appropriate proceedings acceptable to Bank; or
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8.3 PERFORMANCE OF OBLIGATIONS TO BANK. The Borrower and/or
Lakeshore defaults with respect to the performance of any non-monetary
obligation incurred in connection with the Loan other than its obligations
under Section 7.8 hereof and such default continues for more thirty (30) days
following mailing of notice thereof from Bank to Borrower and/or Lakeshore,
or, if such default is incapable of cure within such thirty (30) day period,
Borrower and/or Lakeshore fails to diligently, continuously and in good faith
pursue such cure to completion; or the Borrower and/or Lakeshore defaults
with respect to the performance of any other non-monetary obligation incurred
in connection with any recourse indebtedness for borrowed money owed to the
Bank an such default continues for more thirty (30) days following mailing
of notice thereof from Bank to Borrower and/or Lakeshore, as the case may be,
or, if such default is incapable of cure within such thirty (30) day period,
Borrower and/or Lakeshore fails to diligently, continuously and in good faith
pursue such cure to completion; or
8.4 PERFORMANCE OF OBLIGATIONS TO OTHERS. An event of default occurs
with respect to the performance of non-monetary obligations incurred in
connection with any recourse indebtedness for borrowed money owed to a lender
other than Bank, if the default even if subsequently waived by the Lender is
considered a material default by the Bank and if the default is not cured
within the applicable cure period provided by the lender to whom such
performance is owed; provided, however, if the indebtedness is in an amount
less that $1,000,000.00, or if the lender's declaration of default is being
continuously and diligently contested by the Borrower and/or Lakeshore in
good faith through appropriate proceedings, such default shall not constitute
a default hereunder; or
8.5 REPRESENTATION OR WARRANTY. Any representation or warranty made
by the Borrower and/or Lakeshore herein, or in any report, certificate,
financial statement or other writing furnished in connection with or pursuant
to this Loan Agreement shall prove to be false, misleading or incomplete in
any substantial material respect on the date as of which made; or
8.6 BANKRUPTCY, ETC. The Borrower or Lakeshore or CBL Holdings or CBL
Properties, Inc. shall make a general assignment of assets for the benefit
of creditors, file a petition in bankruptcy, petition or apply to any
tribunal for the appointment of a custodian, receiver or any trustee for it
or a substantial part of its assets, or shall commence on its or their behalf
any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or if there shall have been
filed any such petition or application, or any such proceeding shall have
been commenced against Borrower or Lakeshore or CBL Holdings or CBL
Properties, Inc., in which an order for relief is entered against Borrower
or CBL Properties, Inc. or which remains undismissed for a period of ninety
(90) days or more; or Borrower or Lakeshore or CBL Holdings or CBL
Properties, Inc. by any act or omission shall indicate its consent to,
approval of or acquiescence in any such petition, application or proceeding
or order for relief or the appointment of a custodian, receiver or any
trustee for it or any substantial part of any of its properties, or shall
suffer any such custodianship, receivership or trusteeship to continue
undischarged for a period of ninety (90) days or more; or Borrower or
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Lakeshore or CBL Holdings or CBL Properties, Inc. shall generally not pay its
debts as such debts become due; or
8.7 CONCEALMENT OF PROPERTY, ETC. The Borrower or Lakeshore or CBL
Holdings or CBL Properties, Inc. shall have concealed, removed, or permitted
to be concealed or removed, any part of its property, with intent to hinder,
delay or defraud its or his creditors or any of them, or made or suffered a
transfer of any of its property which shall constitute a fraudulent act under
any bankruptcy, fraudulent conveyance or similar law; or shall have made any
transfer of its property to or for the benefit of a creditor at a time when
other creditors similarly situated have not been paid; or shall have suffered
or permitted, while insolvent, any creditor to obtain a lien upon any of its
property through legal proceedings or distraint which is not vacated within
thirty (30) days from the date thereof; or
8.8 MANAGEMENT CHANGE. Management of the Borrower shall, for a period
of one hundred eighty (180) consecutive days, cease to be in at least one of
the following persons: (a) Charles B. Lebovitz, (b) John N. Foy, (c) Jay
Wiston, or (d) Stephen D. Lebovitz, who shall be in an executive management
position with Borrower or who shall be a senior vice president, executive
vice president, senior executive vice president or president with Borrower's
general partner; or
8.9 CHANGE IN OWNERSHIP. CBL & Associates, Inc., its affiliates,
officers and key employees shall have, through sale or transfer, reduced
their aggregate partnership interest in Borrower (which, for this purpose,
shall include a proportionate share of CBL Holdings' and CBL Properties,
Inc.'s partnership interest in Borrower equal to their proportionate
shareholding in CBL Holdings and CBL Properties, Inc.) to less than (50%) of
such partnership interests owned by them on November 7, 1993. Provided,
however, if the change in ownership occurs as a result of actions taken by
Borrower in compliance with Section 2.7 of this Loan Agreement, no such
change of ownership shall result in an Event of Default hereunder; or
8.10 LOAN DOCUMENTS TERMINATED OR VOID. This Loan Agreement, the
Note, or any instrument securing the Note shall, at any time after their
respective execution and delivery and for any reason, cease to be in full
force and effect or shall be declared to be null and void; or the Borrower
and/or Lakeshore shall deny it has any or further liability under this Loan
Agreement or the Note, respectively; or
8.11 COVENANTS. The Borrower or Lakeshore or any grantor under any
CBL Mortgage defaults in the performance or observance of any covenant,
agreement or undertaking on its part to be performed or observed, contained
herein, in the Security Agreement, CBL Mortgage or in any other instrument
or document which now or hereafter evidences or secures all or any part of
the loan indebtedness which default shall continue for more than thirty (30)
days following the mailing of notice from Bank to Borrower and/or Lakeshore
and/or such grantor under any CBL Mortgage thereof; or
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8.12 BREACH OF SECTION 7.8 OF THIS LOAN AGREEMENT. The Borrower
and/or Lakeshore shall fail to observe or perform its obligations to the
Bank, and/or any Participant under Section 7.8 of this Loan Agreement;
8.13 PLACEMENT OF LIENS ON PROPERTY. The Borrower or any other
grantor of a CBL Mortgage shall, without the prior written consent of the
Bank, create, place or permit to be created or placed, or through any act or
failure to act, acquiesce in the placing of, or allow to remain, any
mortgage, deed of trust, pledge, lien (statutory, constitutional or
contractual), or security interest, encumbrance or charge on, or conditional
sale or other title retention agreement, regardless of whether same are
expressly subordinate to the liens of the CBL Mortgage, with respect to the
property described in the Lakeshore Mortgage or any other CBL Mortgage.
8.14 REMEDY. Upon the occurrence of any Event of Default, as
specified herein, the Bank shall, at its option, be relieved of any
obligation to make further Revolving Credit Advances under this Agreement;
and the Bank may at its option record the Lakeshore Mortgage (New); and the
Bank may, at its option, thereupon declare the entire unpaid principal
balances of the Note of Borrower and the Lakeshore Note, all interest accrued
and unpaid thereon and all other amounts payable under this Loan Agreement
to be immediately due and payable for all purposes, and may exercise all
rights and remedies available to it under the CBL Mortgage, any other
instrument or document which secures the Note and/or the Lakeshore Note, or
available at law or in equity. All such rights and remedies are cumulative
and nonexclusive, and may be exercised by the Bank concurrently or
sequentially, in such order as the Bank may choose.
SECTION 9: MISCELLANEOUS
9.1 AMENDMENTS. The provisions of this Loan Agreement, the Note or
the Lakeshore Note or any instrument or document executed pursuant hereto or
securing the indebtednesses may be amended or modified only by an instrument
in writing signed by the parties hereto.
9.2 NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be mailed, certified mail, return
receipt requested, or delivered, if to the Borrower and/or Lakeshore, to it
at c/o CBL & Associates Properties, Inc., One Park Place, 6148 Lee Highway,
Chattanooga, Tennessee 37421, Attention: President; if to the Bank, to it
at 701 Market Street, Chattanooga, Tennessee 37402, Attention: Gregory L.
Cullum; or as to any such person at such other address as shall be designated
by such person in a written notice to the other parties hereto complying as
to delivery with the terms of this Section 9.2. All such notices and other
communications shall be effective (i) if mailed, when received or three
business days after mailing, whichever is earlier; or (ii) if delivered, upon
delivery and receipt of an executed acknowledgment of receipt by the party
to whom delivery is made.
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9.3 NO WAIVER, CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Bank, any right, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. Waiver of any right, power, or privilege hereunder or under any
instrument or document now or hereafter securing the indebtedness evidenced
hereby or under any guaranty at any time given with respect thereto is a
waiver only as to the specified item. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided
by law.
9.4 INDEMNIFICATION. Borrower and Lakeshore agree to indemnify Bank
from and against any and all claims, losses and liabilities, including,
without limitation, reasonable attorneys' fees, growing out of or resulting
from this Agreement (including, without limitation, enforcement of this
Agreement), except claims, losses or liabilities resulting solely and
directly from Bank's gross negligence or willful misconduct or from Bank's
violation of applicable banking rules and regulations. The indemnification
provided for in this Section shall survive the payment in full of the loan.
9.5 SURVIVAL OF AGREEMENTS. All agreements, representations and
warranties made herein shall survive the delivery of the Note. This Loan
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest
therein.
9.6 GOVERNING LAW. This Loan Agreement shall be governed and
construed in accordance with the laws of the State of Tennessee; except
(a) that the provisions hereof which relate to the payment of interest shall
be governed by (i) the laws of the United States or, (ii) the laws of the
State of Tennessee, whichever permits the Bank to charge the higher rate, as
more particularly set out in the Note, and (b) to the extent that the Liens
in favor of the Bank, the perfection thereof, and the rights and remedies of
the Bank with respect thereto, shall, under mandatory provisions of law, be
governed by the laws of a state other than Tennessee.
9.7 EXECUTION IN COUNTERPARTS. This Loan Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one
and the same instrument.
9.8 TERMINOLOGY; SECTION HEADINGS. All personal pronouns used in this
Loan Agreement whether used in the masculine, feminine, or neuter gender,
shall include all other genders; the singular shall include the plural, and
vice versa. Section headings are for convenience only and neither limit nor
amplify the provisions of this Loan Agreement.
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9.9 ENFORCEABILITY OF AGREEMENT. Should any one or more of the
provisions of this Loan Agreement be determined to be illegal or
unenforceable, all other provisions, nevertheless, shall remain effective and
binding on the parties hereto.
9.10 INTEREST LIMITATIONS. (a) The loan and the Note evidencing the
loan, including any renewals or extensions thereof, may provide for the
payment of any interest rate (i) permissible at the time the contract to make
the loan is executed, (ii) permissible at the time the loan is made or any
advance thereunder is made, or (iii) permissible at the time of any renewal
or extension of the loan or the Note.
(b) It is the intention of the Bank and the Borrower to comply
strictly with applicable usury laws; and, accordingly, in no event and upon
no contingency shall the Bank ever be entitled to receive, collect, or apply
as interest any interest, fees, charges or other payments equivalent to
interest, in excess of the maximum rate which the Bank may lawfully charge
under applicable statutes and laws from time to time in effect; and in the
event that the holder of the Note ever receives, collects, or applies as
interest any such excess, such amount which, but for this provision, would
be excessive interest, shall be applied to the reduction of the principal
amount of the indebtedness thereby evidenced; and if the principal amount of
the indebtedness evidenced thereby, and all lawful interest thereon, is paid
in full, any remaining excess shall forthwith be paid to the Borrower, or
other party lawfully entitled thereto. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the highest
rate which Bank may lawfully charge under applicable law from time to time
in effect, the Borrower and/or Lakeshore and the Bank shall, to the maximum
extent permitted under applicable law, characterize any non-principal payment
as a reasonable loan charge, rather than as interest. Any provision hereof,
or of any other agreement between the Bank and the Borrower and/or Lakeshore,
that operates to bind, obligate, or compel the Borrower to pay interest in
excess of such maximum rate shall be construed to require the payment of the
maximum rate only. The provisions of this paragraph shall be given
precedence over any other provision contained herein or in any other
agreement between the Bank and the Borrower and/or Lakeshore that is in
conflict with the provisions of this paragraph.
The Note and the Lakeshore Note shall be governed and construed
according to the statutes and laws of the State of Tennessee from time to
time in effect, except to the extent that Section 85 of Title 12 of the
United States Code (or other applicable federal statue) may permit the
charging of a higher rate of interest than applicable state law, in which
event such applicable federal statute, as amended and supplemented from time
to time shall govern and control the maximum rate of interest permitted to
be charged hereunder; it being intended that, as to the maximum rate of
interest which may be charged, received, and collected hereunder, those
applicable statutes and laws, whether state or federal, from time to time in
effect, which permit the charging of a higher rate of interest, shall govern
and control; provided, always, however, that in no event and under no
circumstances shall the Borrower and/or Lakeshore be liable for the payment
of interest in excess of the maximum rate permitted by such applicable law,
from time to time in effect.
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9.11 NON-CONTROL. In no event shall the Bank's rights hereunder be
deemed to indicate that the Bank is in control of the business, management
or properties of the Borrower and/or Lakeshore or has power over the daily
management functions and operating decisions made by the Borrower and/or
Lakeshore.
9.12 LOAN REVIEW; EXTENSIONS OF TERMINATION DATE; CONTINUING SECURITY.
(a) The specific Termination Date of Revolving Credit Loan mentioned in
Article One may be extended for additional periods of one (1) year. On each
June 1 hereafter, so long as the Loan remains unpaid, Bank shall review the
performance of the Loan. If the Bank deems performance of the Loan
acceptable, it will renew the Loan for one (1) year from the then existing
Termination Date of Revolving Credit Loan. If Bank deems performance of the
Loan not acceptable, Bank shall not be obligated to extend the Termination
Date of Revolving Credit Loan; however, the Borrower shall then have the
right to repay the Loan pursuant to the repayment provisions contained in the
Note. Assessment of performance and the decision whether to extend the
Termination Date of Revolving Credit Loan shall be solely within Bank's
discretion. The Bank will not deem the performance of the Loan acceptable
unless and until the Borrower provides to the Bank, among other things,
updated title commitments with respect to all properties covered by any CBL
Mortgage, which title commitments must be in form and substance acceptable
to the Bank and must contain no exceptions unacceptable to the Bank. Bank
shall notify Borrower of the results of its review of the Loan no later than
eleven (11) months prior to the then effective Termination Date of the
Revolving Credit Loan. If Bank elects not to renew the Loan, Bank shall not
perform or cause to be performed, except at Bank's expense, any inspections,
appraisals, surveys or similar items between: (a) the date notice thereof
is given Borrower or the Termination Date, whichever first occurs, and (b)
the date the Note is repaid as provided herein.
(b) Upon the specific Termination Date of Revolving Credit Loan so
fixed in Article One, or in the event of the extension of this Agreement to
a subsequent Termination Date (when no effective extension is in force), the
Revolving Credit Loan and all other extensions of credit (unless sooner
declared to be due and payable by the Bank pursuant to the provisions
hereof), and subject to Borrower's election as set forth in subparagraph (a)
above, shall become due and payable for all purposes. Until all such
indebtednesses, liabilities and obligations secured by the CBL Mortgage are
satisfied in full, such termination shall not affect the security interest
granted to Bank pursuant to the CBL Mortgage, nor the duties, covenants, and
obligations of the Borrower therein and in this Agreement; and all of such
duties, covenants and obligations shall remain in full force and effect until
the Revolving Credit Loan and all obligations under this Loan Agreement have
been fully paid and satisfied in all respects.
9.13 FEES AND EXPENSES. The Borrower agrees to pay, or reimburse the
Bank for, the reasonable actual third party out-of-pocket expenses, including
counsel fees and fees of any accountants, inspectors or other similar
experts, as deemed necessary by the Bank, incurred by the Bank in connection
with the development, preparation, execution, amendment, recording,
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(excluding the salary and expenses of Bank's employees and Bank's normal and
usual overhead expenses) or enforcement of, or the preservation of any rights
under this Loan Agreement, the Notes, and any instrument or document now or
hereafter securing the and Revolving Credit Loan indebtednesses.
9.14 TIME OF ESSENCE. Time is of the essence of this Loan Agreement,
the Note, and the other instruments and documents executed and delivered in
connection herewith.
9.15 COMPROMISES, RELEASES, ETC. Bank is hereby authorized from time
to time, without notice to anyone, to make any sales, pledges, surrenders,
compromises, settlements, releases, indulgences, alterations, substitutions,
exchanges, changes in, modifications, or other dispositions including,
without limitation, cancellations, of all or any part of the Loan
indebtedness, or of any contract or instrument evidencing any thereof, or of
any security or collateral therefor, and/or to take any security for or
guaranties upon any of said indebtedness; and the liability of any guarantor,
if any, shall not be in any manner affected, diminished, or impaired thereby,
or by any lack of diligence, failure, neglect, or omission on the part of
Bank to make any demand or protest, or give any notice of dishonor or
default, or to realize upon or protect any of said indebtedness or any
collateral or security therefor. Bank shall have the right to apply such
payments and credits first to the payment of all its expenses, including
costs and reasonable attorneys' fees, then to interest due under the Note and
then to principal due under the Note. Bank shall be under no obligation, at
any time, to first resort to, make demand on, file a claim against, or
exhaust its remedies against the Borrower and/or Lakeshore, or its property
or estate, or to resort to or exhaust its remedies against any collateral,
security, property, liens, or other rights whatsoever. Upon the occurrence
of an Event of Default, it is expressly agreed that Bank may at any time make
demand for payment on, or bring suit against, the Borrower and/or Lakeshore
and any guarantor, jointly or severally and may compromise with any of them
for such sums or on such terms as it may see fit, and without notice or
consent, the same being hereby expressly waived.
9.16 JOINDER OF CBL PROPERTIES, INC. CBL Properties, Inc. joins
herein for the purpose of acknowledging and consenting to the terms and
provisions of Section 2.7 hereof.
9.17 BANK'S CONSENT. Except as otherwise expressly provided herein,
in any instance hereunder where Bank's approval or consent is required or the
exercise of its judgment is required, the granting or denial of such approval
or consent and the exercise of such judgment shall be within the sole
discretion of Bank, and Bank shall not, for any reason or to any extent, be
required to grant such approval or consent or exercise such judgment provided
that the Bank shall proceed at all times in good faith and in a commercially
reasonable manner. Bank may consult with counsel, and the written advice or
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
9.18 VENUE OF ACTIONS. As an integral part of the consideration for
the making of the loan, it is expressly understood and agreed that no suit
or action shall be commenced by the Borrower, Lakeshore, CBL Holdings, CBL
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Properties, Inc., by any guarantor, or by any successor, personal
representative or assignee of any of them, with respect to the loan
contemplated hereby, or with respect to this Loan Agreement or any other
document or instrument which now or hereafter evidences or secures all or any
part of the loan indebtedness, other than in a state court of competent
jurisdiction in and for the County of the State in which the principal place
of business of the Bank is situated, or in the United States District Court
for the District in which the principal place of business of the Bank is
situated, and not elsewhere. Nothing in this paragraph contained shall
prohibit Bank from instituting suit in any court of competent jurisdiction
for the enforcement of its rights hereunder or in any other document or
instrument which evidences or secures the loan indebtedness.
9.19 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
9.20 CONFLICT. In the event of any conflict between the provisions
hereof and any other loan document during the continuance of this Agreement
(including but not limited to the Construction Loan Agreement and any other
documents received by the Bank via assignment in connection with the
Lakeshore Mall), the provisions of this Agreement shall control.
9.21 PARTICIPATION AGREEMENT. The Borrower and Lakeshore acknowledge
that the Participation Agreement exists and that the Bank is obligated,
subject to the terms and conditions hereof, to fund Eighty Million Dollars
($80,000,000.00) to the Borrower but that of that amount KeyBank National
Association, formerly Society National Bank and AmSouth Bank are obligated,
subject to the terms and conditions of the Participation Agreement, to fund
Twenty Two Million Five Hundred Thousand Dollars ($22,500,000.00) each to the
Bank and Compass Bank is obligated, subject to the terms and conditions of
the Participation Agreement, to fund Twelve Million Five Hundred Thousand and
NO/100 Dollars ($12,500,000.00) to the Bank.
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IN WITNESS WHEREOF, the Borrower, Lakeshore, the Bank, CBL Holdings and
CBL Properties, Inc. have caused this Agreement to be executed by their duly
authorized officers and/or partner, all as of the day and year first above
written.
CBL & ASSOCIATES LIMITED PARTNERSHIP
BY: CBL HOLDINGS I, INC.,
Its Sole General Partner
By:_____John N. Foy______________________
Title:__Executive Vice President_________
BORROWER
LAKESHORE/SEBRING LIMITED PARTNERSHIP
BY: CBL & ASSOCIATES LIMITED
PARTNERSHIP, It's sole General Partner
BY: CBL HOLDINGS I, INC.,
Its sole General Partner
By:___John N. Foy________________________
Title:___Executive Vice President________
LAKESHORE
CBL & ASSOCIATES PROPERTIES, INC.
By:___John N. Foy________________________
Title:___Executive Vice President________
GUARANTOR
CBL HOLDINGS I, INC.
By:____John N. Foy_______________________
Title:___Executive Vice President________
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:_____________________________________
Timothy L. Collins, Vice President
BANK
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EXHIBIT "A"
Real property known as:
Coolsprings Crossing located in Franklin, TN
Valley Crossing located in Hickory, NC
East Towne Crossing located in Knoxville, TN
Jean Ribaut Square located in Beaufort, SC
Garden City Plaza, Garden City, Kansas
North Ridge Plaza, Hilton Head, South Carolina
Ladies Island, Beaufort, South Carolina
Sattler Square, Big Rapids, Michigan
Walnut Square Mall, Dalton, Georgia
Lakeshore Mall, Sebring, Florida
Pemberton Mall, Vicksburg, Mississippi
all as more particularly described in the individual deeds of trust and/or
mortgages applicable to the above described properties.
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EXHIBIT "B"
PERMITTED ENCUMBRANCES
1. As described in the Mortgages.
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EXHIBIT "C"
REVOLVING CREDIT NOTES AND LAKESHORE NOTE
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EXHIBIT "D"
CHECKLIST FOR CLOSING
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EXHIBIT "E"
NON-DEFAULT CERTIFICATE
For Fiscal Year Ended _______________, 19__.
For Fiscal Quarter Ended _______________, 19__.
The undersigned, a duly authorized officer of CBL & Associates
Limited Partnership, a Delaware limited partnership [referred to as
"Borrower" in that certain Amended and Restated Loan Agreement (the "Loan
Agreement") dated as of June 30, 1998 between Borrower, Lakeshore and First
Tennessee Bank National Association ("Bank")], certifies to said Bank, in
accordance with the terms and provisions of said Loan Agreement, as follows:
1. All of the representations and warranties set forth in the Loan
Agreement are and remain true and correct on and as of the date of this
Certificate with the same effect as though such representations and
warranties had been made on and as of this date except as otherwise
previously disclosed to the Bank in writing.
2. As of the date hereof, neither Borrower nor Lakeshore has knowledge
of any Event of Default, as specified in Section 8 of the Loan Agreement, nor
any event which, upon notice, lapse of time or both, would constitute an
Event of Default, has occurred or is continuing.
3. As of the date hereof, Borrower is in full compliance with all
financial covenants contained in the Loan Agreement, and the following are
true, accurate and complete:
(a) The Net Worth (as defined in the Loan Agreement) of the
Borrower is $__________________________ as of
________________, 19___.
(b) The Total Obligations to Portfolio Value Ratio of the
Borrower is _____ to _____ as of _____________________,
19__.
(c) The Debt Coverage Ratio of the Borrower is ____ to ____ as
of ______________, 19__.
(d) The Interest Coverage Ratio of the Borrower is ____ to
____ as of _____________________, 1996.
DATED this ______ day of ______________________, 19__.
CBL & ASSOCIATES LIMITED PARTNERSHIP
BY: CBL HOLDINGS I, INC.,
Its Sole General Partner
By:________________________________
Title:_____________________________
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EXHIBIT "F"
LITIGATION
Disclosure Pursuant to Paragraph 5.5
See Exhibit "F-1" attached for description of all litigation.
ENVIRONMENTAL MATTERS
Disclosure pursuant to Paragraph 5.11
None.
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JOINDER IN AMENDED AND RESTATED LOAN AGREEMENT
KEYBANK NATIONAL ASSOCIATION as "Participant" under the terms of
that certain Amended and Restated Loan Agreement (the "Loan Agreement") dated
effective as of June 30, 1998, between and among First Tennessee Bank
National Association, CBL & Associates Limited Partnership and
Lakeshore/Sebring Limited Partnership, in consideration of the mutual
agreements of the parties thereto and of the undersigned therein contained,
hereby joins as a party to said Loan Agreement and agrees to perform all
obligations to be performed on its part thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder in
Amended and Restated Loan Agreement to be executed by its duly authorized
officer effective as of June 30, 1998.
KEYBANK NATIONAL ASSOCIATION
By:________________________________
Title:___________________________
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JOINDER IN AMENDED AND RESTATED LOAN AGREEMENT
COMPASS BANK as "Participant" under the terms of that certain
Amended and Restated Loan Agreement (the "Loan Agreement") dated effective
as of June 30, 1998, between and among First Tennessee Bank National
Association, CBL & Associates Limited Partnership and Lakeshore/Sebring
Limited Partnership, in consideration of the mutual agreements of the parties
thereto and of the undersigned therein contained, hereby joins as a party to
said Loan Agreement and agrees to perform all obligations to be performed on
its part thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder in
Amended and Restated Loan Agreement to be executed by its duly authorized
officer effective as of June 30, 1998.
COMPASS BANK
By:________________________________
Douglas Vibert, Vice President
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JOINDER IN AMENDED AND RESTATED LOAN AGREEMENT
AMSOUTH BANK as "Participant" under the terms of that certain
Amended and Restated Loan Agreement (the "Loan Agreement") dated effective
as of June 30, 1998, between and among First Tennessee Bank National
Association, CBL & Associates Limited Partnership and Lakeshore/Sebring
Limited Partnership, in consideration of the mutual agreements of the parties
thereto and of the undersigned therein contained, hereby joins as a party to
said Loan Agreement and agrees to perform all obligations to be performed on
its part thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder in
Amended and Restated Loan Agreement to be executed by its duly authorized
officer effective as of June 30, 1998.
AMSOUTH BANK
By:________________________________
Rusty Campbell, Vice President
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