Exhibit 10.19.3
SECOND AMENDMENT
TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO THE THIRD AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is made and entered into as of this 11th day of July, 2005,
but effective as of the 1st day of April, 2005, 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 "Original 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;
WHEREAS, Borrower and Bank previously amended the Original Loan Agreement
pursuant to that certain First Amendment to the Third Amended and Restated Loan
Agreement (the "First Amendment") by, inter alia, extending the Termination Date
by one (1) year; and
WHEREAS, Borrower and Bank again desire to extend the Maturity Date for the
Loan by extending the Termination Date by one (1) year;
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. Termination Date. The definition of Termination Date contained in the Loan
Agreement, as previously amended by the First Amendment, is hereby deleted and
in lieu thereof the following definition shall be inserted and added to replace
the same:
"Termination Date" means April 1, 2007, or such later date to which
such date may be extended in accordance with Section 11.12."
3. Conditions Precedent. Subject to the other terms and conditions hereof, this
Amendment shall not become effective until the Agent shall have received each of
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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; (ii) that the
Partnership Agreement and Certificate of Limited Partnership of
Borrower and Guarantor have not been modified since June 15, 2005;
(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 been modified since June 15, 2005; (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.
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Upon fulfillment of the foregoing conditions precedent, this Amendment
shall become effective as of the date hereof.
4. 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.
5. 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.
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6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties hereto.
12. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second 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 and
Chief Financial Officer
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[ SIGNATURE PAGES CONTINUE ON NEXT PAGE ]
[SIGNATURE PAGE TO THE SECOND 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: Senior Vice President
-------------------------------
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[SIGNATURE PAGE TO THE SECOND 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 Second 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 N. Foy
Title: Vice Chairman and Chief Financial Officer
PARENT:
CBL & ASSOCIATES PROPERTIES, INC.
By: /s/ John N. Foy
--------------------------------------------------------
Name: John N. Foy
Title: Vice Chairman and Chief Financial Officer