Exhibit 10.19.2
EXECUTION COPY
FIRST AMENDMENT
TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO THE THIRD AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") is made and entered into as of this 22nd day of September, 2004,
but effective as of the 1st day of April, 2004, by and among CBL & ASSOCIATES
LIMITED PARTNERSHIP, a Delaware limited partnership (hereinafter referred to as
"Borrower"), and SUNTRUST BANK, a Georgia banking corporation (the "Bank").
WITNESSETH:
WHEREAS, Borrower and Bank entered into that certain Third Amended and
Restated Loan Agreement dated as of September 24, 2003 (the "Loan Agreement"),
pursuant to which the Bank agreed to extend to Borrower a loan on a credit
revolving basis (the "Loan") not to exceed the principal sum of Ten Million and
No/100 Dollars ($10,000,000) at any one time outstanding; and
WHEREAS, Borrower and Bank desire to extend the Maturity Date for the Loan
by extending the Termination Date by one (1) year and modify certain definitions
now contained in the Loan Agreement;
NOW THEREFORE, for and in consideration of the premises, for Ten and No/100
Dollars ($10.00) in hand paid by the parties to each other, and for other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged by Borrower and Bank, Borrower and Bank do hereby covenant
and agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meaning ascribed to such terms in the Credit Agreement.
2. Adjusted Asset Value. The definition of Adjusted Asset Value contained
in the Loan Agreement is hereby amended:
(a) by deleting the figure "8.5%" from the third line thereof, and by
inserting the figure "8.25%" in lieu thereof; and
(b) by deleting therefrom the final sentence thereof, which did
read:
"In addition, in the case of any operating Property acquired
in the immediately preceding period of twelve consecutive
months for a purchase price indicative of a capitalization
rate of less than 8.5%, EBITDA attributable to such Property
shall be excluded from the determination of Adjusted Asset
Value."
1
3. Gross Asset Value. The definition of Gross Asset Value contained in
the Loan Agreement is hereby amended by deleting therefrom paragraph
(e)(ii):
"(ii)any operating Property acquired in the immediately
preceding period of twelve consecutive months for a
purchase price indicative of a capitalization rate of
less than 8.5%; provided, that if the Parent or
Subsidiary acquired such Property together with other
Properties or other assets and paid an aggregate
purchase price for such Properties and other assets,
then the Parent shall allocate the portion of the
aggregate purchase price attributable to such Property
in a manner consistent with reasonable accounting
practices;"
and inserting the following in lieu thereof:
"(ii)any operating Property acquired in the immediately
preceding period of eighteen consecutive months for a
purchase price indicative of a capitalization rate of
less than 8.25%; provide, that if the Parent or a
Subsidiary acquired such Property together with other
Properties or other assets and paid an aggregate
purchase price for such Properties and other assets,
then the Parent shall allocate the portion of the
aggregate purchase price attributable to such Property
in a manner consistent with reasonable accounting
practices; provided further, in no event shall the
aggregate value of such operating Property included in
Gross Asset Value pursuant to this clause (e)(ii)
exceed $1,000,000,000.00."
4. Termination Date. The definition of Termination Date contained in the
Loan Agreement is hereby deleted and in lieu thereof the following
definition shall be inserted and added to replace the same:
"Termination Date" means April 1, 2006, or such later date
to which such date may be extended in accordance with
Section 11.12."
5. Total Liabilities. The definition of Total Liabilities contained in
the Loan Agreement is hereby amended by inserting the following
immediately after numbered subclause (2) thereof:
"(3) All items included in the line item "Accounts Payable
and Accrued Liabilities" under the category of "Liabilities
and Shareholder's Equity" in the Consolidated Balance Sheets
included Parent's Form 10-Q or Form 10-K (or their
equivalent) filed with the Securities and Exchange
Commission (or any Governmental Authority substituted
therefore) shall not be included as Total Liabilities."
6. Conditions Precedent. Subject to the other terms and conditions
hereof, this Amendment shall not become effective until the Agent
2
shall have received each of the following instruments, documents or
agreements, each in form and substance satisfactory to the Agent:
(a) Counterparts this Amendment duly executed and delivered by
Borrower and Bank;
(b) a certificate of Secretary of CBL Holdings I, Inc. dated as of
the date hereof certifying (i) that the Certificate of
Incorporation and By-laws of CBL Holdings I, Inc. have not been
modified since September 24, 2003; (ii) that the Partnership
Agreement and Certificate of Limited Partnership of Borrower and
Guarantor have not been modified since September 24, 2003; (iii)
that attached thereto is a true and complete copy of Resolutions
adopted by the Executive Committee Board of Directors of CBL
Holdings I, Inc., authorizing the execution and delivery on
behalf of Borrower and Guarantor of this Amendment and the other
instruments, documents or agreements executed and delivered by or
on behalf of Borrower and/or Guarantor in connection herewith
remain in full force and effect (all such instruments, documents
or agreements executed and delivered in connection herewith by or
on behalf of CBL Holdings I, Inc., Borrower and/or Guarantor are
hereinafter collectively referred to as the "Borrower Amendment
Documents"); and (iv) as to the incumbency and genuineness of the
signatures of the officers of CBL Holdings I, Inc. executing the
Borrower Amendment Documents to which Borrower and/or Guarantor
is a party;
(c) a certificate of the Secretary of CBL & Associates Properties,
Inc. dated as of the date hereof certifying (i) that the
Certificate of Incorporation and By-laws of CBL & Associates
Properties, Inc. have not bee modified since September 24, 2003;
(ii) that copy Resolutions adopted by the Executive Committee
Board of Directors of CBL & Associates Properties, Inc.
authorizing the execution and delivery on behalf of CBL &
Associates Properties, Inc. of this Amendment and the other
instruments, documents or agreements executed and delivered by
CBL & Associates Properties, Inc. in connection herewith (all
such instruments, documents or agreement executed and delivered
in connection herewith by or on behalf of CBL Holdings I, Inc.,
Borrower may or any Subpartnership are hereinafter collectively
referred to as the "Properties Amendment Documents"); and (iii)
as to the incumbency and genuineness of the signatures of the
offices of CBL & Associates Properties, Inc. executing the
Properties Amendment Documents to which CBL & Associates
Properties, Inc. is a party;
(d) the opinions of Borrower's in-house counsel addressed to the Bank
and satisfactory in form and substance to the Bank, covering such
matters relating to the transaction contemplated by this
Amendment as the Bank may reasonably request.
3
Upon fulfillment of the foregoing conditions precedent, this Amendment
shall become effective as of the date hereof.
7. Representations and Warranties; No Default. Borrower hereby represents
and warrants to the Bank that:
(a) all of Borrower's representations and warranties contained in the
Loan Agreement and the other Loan Documents, except for those
representations and warranties which by their terms date specific
only to a stated date, are true and correct on and as of the date
of Borrower's execution of this Amendment;
(b) no Default or Event of Default has occurred and is continuing as
of such date under any Loan Document;
(c) Borrower has the power and authority to enter into this Amendment
and to perform all of its obligations hereunder;
(d) the execution, delivery and performance of this Amendment by
Borrower has been duly authorized by all necessary corporate,
partnership or other action;
(e) the execution and delivery of this Amendment and performance
thereof by Borrower does not and will not violate the Partnership
Agreements or other organizational documents of Borrower or the
Certificate of Incorporation, By-laws or other organizational
documents of CBL Holdings I, Inc. and does not and will not
violate or conflict with any law, order, writ, injunction, or
decree of any court, administrative agency or other governmental
authority applicable to Borrower or their respective properties;
and
(f) this Amendment, the Guarantor consent, and all other documents
executed in connection herewith, constitute legal, valid and
binding obligations of the parties thereto, in accordance with
the respective terms thereof, subject to bankruptcy, insolvency
and similar laws of general application affecting the rights and
remedies of creditors and, which respect to the availability of
remedies of specific enforcement, subject to the discretion of
the court before which any proceeding therefor may be brought.
8. Expenses. Borrower agrees to pay, immediately upon demand by the Bank,
all reasonable costs, expenses, fees and other charges and expenses
actually incurred by the Bank in connection with the negotiation,
preparation, execution and delivery of this Amendment and the
Amendment Documents.
4
9. Defaults Hereunder. The breach of any representation, warranty or
covenant contained herein or in any document executed in connection
herewith, or the failure to observe or comply with any term or
agreement contained herein shall constitute a Default or Event of
Default under the Loan Agreement (subject to any applicable cure
period set forth in the Loan Agreement) and the Bank shall be entitled
to exercise all rights and remedies they may have under the Loan
Agreement, any other documents executed in connection therewith and
applicable law.
10. References. All references in the Loan Agreement and the Loan
Documents to the Loan Agreement shall hereafter be deemed to be
references to the Loan Agreement as amended hereby and as the same may
hereafter be amended from time to time.
11. Limitation of Agreement. Except as especially set forth herein, this
Amendment shall not be deemed to waive, amend or modify any term or
condition of the Loan Agreement, each of which is hereby ratified and
reaffirmed and which shall remain in full force and effect, nor to
serve as a consent to any matter prohibited by the terms and
conditions thereof.
12. Counterparts. To facilitate execution, this Amendment may be executed
in as many counterparts as may be convenient or required. It shall not
be necessary that the signature of, or on behalf of, each party, or
that the signature of all persons required to bind any party, appear
on each counterpart. All counterparts shall collectively constitute a
single document. It shall not be necessary in making proof of this
document to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the
parties hereto. Any signature page to any counterpart may be detached
from such counterpart without impairing the legal effect of the
signature thereon and thereafter attached to another counterpart
identical thereto having attached to it additional signature pages.
13. Further Assurances. Borrower agrees to take such further action as the
Bank shall reasonably request in connection herewith to evidence the
amendments herein contained to the Loan Agreement.
14. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties
hereto.
15. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Georgia, without reference
to principles of conflicts of law.
5
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Third Amended and Restated Loan Agreement to be executed by their authorized
officers all as of the day and year first above written.
BORROWER:
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., its sole general partner
By: /s/ John N. Foy
-------------------------------------------
Name: John N. Foy
-------------------------------------------
Title: Vice Chairman of the Board
and Chief Financial Officer
-------------------------------------------
[ SIGNATURE PAGES CONTINUE ON NEXT PAGE ]
6
[SIGNATURE PAGE TO THE FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN
AGREEMENT DATED AS OF SEPTEMBER 24, 2003]
SUNTRUST BANK, a Georgia Banking Corporation
By: /s/ W. John Wendler
-------------------------------------------------
Name: W. John Wendler
-----------------------------------------
Title: Director
----------------------------------------
7
[SIGNATURE PAGE TO THE FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN
AGREEMENT DATED AS OF SEPTEMBER 24, 2003]
CONSENT OF PARENT AND GUARANTOR
Cool Springs Crossing Limited Partnership, a Tennessee limited partnership
("Guarantor") and CBL & Associates Properties, Inc., a Delaware corporation
("Parent") hereby consents to and approves the Borrower's execution of the
foregoing First Amendment to Third Amended and Restated Loan Agreement by and
between SunTrust Bank and CBL & Associates Limited Partnership.
GUARANTOR:
COOL SPRINGS CROSSING LIMITED PARTNERSHIP
a Tennessee limited partnership
By: CBL & Associates Limited Partnership, a Delaware
Limited partnership and its general partner
By: CBL Holdings I, Inc., a Delaware Corporation and its
sole general partner of CBL & Associates Limited
Partnership
By: /s/ John N. Foy
--------------------------------------------------------
Name: John Foy
Title: Vice Chairman and Chief Financial Officer
PARENT:
CBL & ASSOCIATES PROPERTIES, INC.
By: /s/ John N. Foy
--------------------------------------------------------
Name: John Foy
Title: Vice Chairman and Chief Financial Officer
8