Exhibit 10.17.3
SECOND AMENDMENT
TO
SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of the __21st__ day of September, 2005,
by and among CBL & ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership (hereinafter referred to as "Borrower"), CBL & ASSOCIATES
PROPERTIES, INC., a Delaware corporation (hereinafter referred to as the
"Parent"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, U.S. BANK NATIONAL ASSOCIATION, a national banking association,
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, a German banking
corporation, PNC BANK, NATIONAL ASSOCIATION, a national banking association,
SUNTRUST BANK, a Georgia banking corporation, and KEYBANK NATIONAL ASSOCIATION,
a national banking association, (hereinafter referred to individually as a
"Lender" and collectively as the "Lenders") and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as contractual representative of
the Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower, Parent, Lenders and Agent entered into that certain
Sixth Amended and Restated Credit Agreement dated as of February 28, 2003 (the
"Credit Agreement"), pursuant to which the Lenders agreed to extend to Borrower
a credit facility (the "Credit Facility") in the aggregate principal amount of
up to Two Hundred Fifty-Five Million and No/100 Dollars ($255,000,000.00) at any
one time outstanding; and
WHEREAS, Borrower, Parent, Lenders and Agent entered into that certain
First Amendment to Sixth Amended and Restated Credit Agreement dated as of May
3, 2004 (the "First Amendment"), pursuant to which the parties modified and
amended the Credit Agreement to, among other matters, increase the aggregate
principal amount of the Credit Facility to up to Three Hundred Seventy-Three
Million Dollars ($373,000,000.00) at any one time outstanding (the Credit
Agreement as modified by the First Amendment being hereinafter referred to as
the "Credit Agreement").
WHEREAS, Borrower, Parent, Lenders and Agent desire to further modify and
amend the Credit Agreement, as more particularly set forth hereinbelow.
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, Parent, Lenders, and Agent, Borrower, Parent,
Lenders, and Agent do hereby covenant and agree as follows:
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1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the
Credit Agreement.
2. Adjusted Asset Value. The definition of Adjusted Asset Value
contained in the Credit Agreement is hereby amended
(a) by deleting the first sentence thereof and inserting in lieu
thereof the following sentence:
"Adjusted Asset Value" means, as of a given date, the sum of (i)
EBITDA attributable to malls, power centers and all other assets
for the fiscal quarter most recently ended times (ii) 4; divided
by (iii) 7.25%."; 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 eighteen consecutive months
for a purchase price indicative of a capitalization rate of less
than 8.25%, EBITDA attributable to such Property shall be
excluded from the determination of Adjusted Asset Value."
and inserting the following in lieu thereof
"In addition, in the case of any operating Property acquired in
the immediately preceding period of eighteen (18) consecutive
months for a purchase price indicative of a capitalization rate
of less than 7.25%, EBITDA attributable to such Property shall be
excluded from the determination of Adjusted Asset Value, if that
particular operating Property is valued in Parent's financial
statements at its purchase price."
3. Gross Asset Value. The definition of Gross Asset Value contained
in the Credit Agreement is hereby amended by deleting therefrom
paragraph (e)(ii) thereof, which did read:
"(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%;
provided, 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;"
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 7.25%;
provided, that if the Parent or a Subsidiary acquired such
Property together with other Properties or other assets and paid
an aggregate purchase price for
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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 Properties included in Gross Asset Value
pursuant to this clause (e)(ii) exceed $2,000,000,000.00;"
4. Rates. Section 2.4(a)(ii) of the Credit Agreement, which did
read:
"(ii) during such periods as such Revolving Advance is a LIBOR
Advance, at LIBOR for such Revolving Advance for the Interest
Period therefore, plus 1.0%."
is hereby deleted, and the following is hereby inserted in lieu
thereof:
"(ii) during such periods as such Revolving Advance is a LIBOR
Advance, at LIBOR for such Revolving Advance for the Interest
Period therefore, plus 0.90%."
5. Tax Shelter Regulations. The Credit Agreement is hereby amended
by adding the following as Section 7.1(t) thereof:
"(t) Tax Shelter Regulations. Neither Borrower, the Parent, any
Guarantor, any other Loan Party or any non-borrower trustor, nor
any Subsidiary of any of the foregoing intends to treat the Loan
or the transactions contemplated by this Agreement and the other
Loan Documents as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). If Borrower,
the Parent, any Guarantor or any other Loan Party determines to
take any action inconsistent with such intention, Borrower will
promptly notify Agent thereof. If Borrower so notifies Agent,
Borrower acknowledges that Agent and each Lender may treat the
Loan as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and Agent and such Lender will
maintain the lists and other records, including the identity of
the applicable party to the Loan as required by such Treasury
Regulation."
6. USA Patriot Act Notice. Compliance. The Credit Agreement is
hereby amended by adding the following Section 13.23 thereto,
immediately after Section 13.22 thereof:
"Section 13.23. USA Patriot Act Notice. Compliance. The USA
Patriot Act of 2001 (Public Law 107-56) and federal regulations
issued with respect thereto require all financial institutions to
obtain, verify and record certain information that identifies
individuals or business entities which open an "account" with
such financial institution. Consequently, Agent may from
time-to-time request, and Borrower shall provide to Agent,
Borrower's, Parent's, each Guarantor's and each other Loan
Party's name, address, tax identification number and/or such
other identification information as shall be necessary for Agent
and the Lenders to comply with federal law. An "account" for this
purpose may include, without limitation, a deposit account, cash
management service, a transaction or asset account, a credit
account, a loan or other extension of credit, and/or other
financial services product."
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7. Litigation. Borrower warrants and represents that Schedule 7.1(f)
attached to the Credit Agreement is true, accurate and complete
as of the date hereof.
8. Conditions Precedent. Subject to the other terms and conditions
hereof, this Amendment shall not become effective until the Agent
shall have received each of the following instruments, documents
or agreements, each in form and substance satisfactory to the
Agent:
(a) counterparts of this Amendment duly executed and delivered
by Borrower, Parent, Agent and each of the Lenders;
(b) Acknowledgements and Consents executed by the Parent and
each Guarantor (collectively, the "Guarantor Consents"),
consenting to this Amendment and the transactions
contemplated hereby;
(c) a certificate of the 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 May 3, 2004; (ii) that the Partnership
Agreement and Certificate of Limited Partnership of Borrower
have not been modified since May 3, 2004; (iii) that
attached thereto is a true and complete copy of Resolutions
adopted by the Board of Directors of CBL Holdings I, Inc.,
authorizing the execution and delivery on behalf of Borrower
of this Amendment and the other instruments, documents or
agreements executed and delivered by or on behalf of
Borrower in connection herewith (all such instruments,
documents or agreements executed and delivered in connection
herewith by or on behalf of CBL Holdings I, Inc. or Borrower
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 CBL Holdings I, Inc. or Borrower is a party;
(d) a certificate of the Secretary of CBL Holdings I, Inc. dated
as of the date hereof certifying (i) that the Partnership
Agreements, Certificates of Limited Partnership, Articles of
Incorporation, Articles of Organization, Bylaws and other
organizational documents of each Loan Party owning a
Collateral Property have not been modified since May 3,
2004; (ii) that attached thereto is a true and complete copy
of Resolutions adopted by the Board of Directors of CBL
Holdings I, Inc., authorizing the execution and delivery on
behalf of each Loan Party owning a Collateral Property, the
Guarantor Consents and the other instruments, documents or
agreements executed and delivered by or on behalf of such
Loan Parties in connection herewith (all such instruments,
documents or agreements executed and delivered in connection
herewith by or on behalf of CBL Holdings I, Inc. or any Loan
Party are hereinafter collectively referred to as the "Loan
Party Amendment Documents"); and (iii) as to the incumbency
and genuineness of the signatures of the officers of CBL
Holdings I, Inc. executing the Loan Party Amendment
Documents to which any Loan Party is a party;
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(e) 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 May
3, 2004; (ii) that attached thereto is a true and complete
copy of Resolutions adopted by the 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 agreements executed and delivered
in connection herewith by or on behalf of CBL Holdings I,
Inc., Borrower 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 officers of CBL & Associates
Properties, Inc. executing the Properties Amendment
Documents to which CBL & Associates Properties, Inc. is a
party;
(f) the opinions of Borrower's in-house counsel, addressed to
Agent and each Lender and satisfactory in form and substance
to Agent, covering such matters relating to the transaction
contemplated by this Amendment as Agent may reasonably
request; and
(g) payment to Agent, for the benefit of Lenders, of all loan
fees due in connection with this Amendment.
Upon fulfillment of the foregoing conditions precedent, this
Amendment shall become effective as of the date hereof.
9. Representations and Warranties; No Default. Borrower hereby
represents and warrants to the Agent and the Lenders that:
(a) all of Borrower's representations and warranties contained
in the Credit Agreement and the other Loan Documents 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 and Parent have 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 and Parent have been duly authorized by all
necessary corporate, partnership or other action;
(e) the execution and delivery of this Amendment and performance
thereof by Borrower and Parent does not and will not violate
the Partnership Agreements or other organizational documents
of Borrower or Parent 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,
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administrative agency or other governmental authority
applicable to Borrower, Parent, CBL Holdings I, Inc., or
their respective properties; and
(f) this Amendment, the Guarantor Consents, 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, with respect to the availability of the remedies of
specific enforcement, subject to the discretion of the court
before which any proceeding therefor may be brought.
10. Expenses. Borrower agrees to pay, immediately upon demand by the
Agent, all reasonable costs, expenses, fees and other charges and
expenses actually incurred by the Agent in connection with the
negotiation, preparation, execution and delivery of this
Amendment, the Borrower Amendment Documents, the Loan Party
Amendment Documents, and the Properties Amendment Documents.
11. 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 Credit Agreement (subject to any
applicable cure period set forth in the Credit Agreement) and the
Agent and the Lenders shall be entitled to exercise all rights
and remedies they may have under the Credit Agreement, any other
documents executed in connection therewith and applicable law.
12. References. All references in the Credit Agreement and the Loan
Documents to the Credit Agreement shall hereafter be deemed to be
references to the Credit Agreement as amended hereby and as the
same may hereafter be amended from time to time.
13. 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 Credit 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.
14. 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.
15. Further Assurances. Borrower agrees to take such further action
as the Agent or the Lenders shall reasonably request in
connection herewith to evidence the amendments herein contained
to the Credit Agreement.
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16. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of
the parties hereto.
17. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of Georgia, without
regard to principles of conflicts of law.
[Signatures Begin on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
Sixth Amended and Restated Credit 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/ Xxxx X. Xxx
----------------------------------------
Name: Xxxx X. Xxx
---------------------------------
Title: Vice Chairman and Chief Financial Officer
-------------------------------------------
PARENT:
CBL & ASSOCIATES PROPERTIES, INC., solely for the
limited purposes set forth in Section 13.20 of the Credit
Agreement.
By: /s/ Xxxx X. Xxx
----------------------------------------
Name: Xxxx X. Xxx
---------------------------------
Title: Vice Chairman and Chief Financial Officer
-------------------------------------------
[Signatures Continued on Following Page]
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[Signature Page to Second Amendment to Sixth Amended and
Restated Credit Agreement]
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
[Signatures Continued on Following Page]
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[Signature Page to Second Amendment to Sixth Amended
and Restated Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
[Signatures Continued on Following Page]
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[Signature Page to Second Amendment to Sixth Amended
and Restated Credit Agreement]
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
---------------------------------------
Title: Vice President
-------------------------------------
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
------------------------------------
Title: Assistnat Treasurer
-----------------------------------
[Signatures Continued on Following Page]
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[Signature Page to Second Amendment to Sixth Amended
and Restated Credit Agreement]
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxx
---------------------------------------
Title: Vice President
--------------------------------------
[Signatures Continued on Following Page]
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[Signature Page to Second Amendment to Sixth Amended
and Restated Credit Agreement]
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title: Vice President
--------------------------------------
[Signatures Continued on Following Page]
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[Signature Page to Second Amendment to Sixth Amended
and Restated Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[Signatures Continued on Following Page]
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[Signature Page to Second Amendment to Sixth Amended
and Restated Credit Agreement]
SUNTRUST BANK, a Georgia Banking Corporation
By: /s/ W. Xxxx Xxxxxxx
-------------------------------------------
Name: W. Xxxx Xxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
[End of Signatures]
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