Exhibit 10.17.2
FIRST AMENDMENT
TO
SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is made and entered into as of the 3rd day of May, 2004, 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 desire to modify and amend
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.
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:
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Credit Agreement.
2. Commitment. (a) From and after the effective date hereof, the
Commitment of each Lender is hereby increased to the amounts set forth beside
each Lender's name:
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Commitment
Lender Mall
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Xxxxx Fargo Bank, National Association $85,000,000.00
Wachovia Bank, National Association $47,000,000.00
U.S. Bank National Association $71,000,000.00
Commerzbank AG, New York and Grand Cayman $47,000,000.00
Branches
PNC Bank, National Association $47,000,000.00
SunTrust Bank $29,000,000.00
KeyBank National Association $47,000,000.00
(b) The within increase in the Commitments is made in
lieu of the increase permitted pursuant to Section 2.11 of the Credit Agreement.
(c) Section 2.11 of the Credit Agreement is hereby amended by
deleting the figure "$350,000,000" therefrom, and by inserting the figure
"$500,000,000" in lieu thereof.
3. Additional Collateral Properties; Additional Loan Parties. From and
after the effective date hereof, the Collateral Properties shall include, in
addition to the Collateral Properties identified on Schedule 4.1 to the Credit
Agreement, the Collateral Properties identified on Schedule 1 attached hereto
and by this reference made a part hereof (the "Additional Collateral
Properties"), which are owned by the parties identified in said Schedule 1 (the
"Additional Loan Parties"). Schedule 7.1(b) of the Credit Agreement is hereby
amended by adding thereto the information concerning the Additional Loan Parties
set forth on Schedule 2 attached hereto and by this reference made a part
hereof.
4. Adjusted Asset Value. The definition of Adjusted Asset Value
contained in the Credit Agreement is hereby amended:
(a) by deleting the figure "8.5%" from the second 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
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capitalization rate of less than 8.5%, 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 8.25%, EBITDA attributable to
such Property shall be excluded from the determination of
Adjusted Asset Value."
5. 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 twelve consecutive months for
a purchase price indicative of a capitalization rate of less
than 8.5%; 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;"
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%; 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;"
6. Total Liabilities. The definition of Total Liabilities contained in
the Credit 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 in Parent's Form 10-Q or Form 10-K (or their
equivalent) filed with the Securities and Exchange Commission
(or any Governmental Authority substituted therefor) shall not
be included as Total Liabilities."
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.
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8. Form Collateral Documents. The Credit Agreement is hereby amended by
replacing Exhibits C, D, J and M thereto with Exhibits A, B, C and D attached
hereto and by this reference made a part hereof, respectively.
9. 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) Amended and Restated Promissory Notes executed by the Borrower,
payable to each Lender, in the face amount of each Lender's Commitment, as
increased pursuant to this Amendment (the "Amended Notes");
(c) Acknowledgements and Consents executed by the Parent and each
Guarantor (collectively, the "Guarantor Consents"), consenting to this Amendment
and the transactions contemplated hereby;
(d) an amendment to each Mortgage (collectively, the "Mortgage
Amendments") encumbering a Collateral Property, amending each such Mortgage to
reflect this Amendment and the transaction contemplated hereby;
(e) Security Deeds and Guarantys (collectively, the "Additional
Collateral Documents") executed by each of the Additional Loan Parties;
(f) the documents required pursuant to Section 6.3 of the Credit
Agreement, with respect to each of the Additional Collateral Properties;
(g) endorsements to each of the title insurance policies insuring the
validity and priority of the Mortgages (as amended by the Mortgage Amendments)
covered thereby as a first priority Lien upon the Property described therein,
subject to Permitted Liens;
(h) 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 February 28, 2003; (ii)
that the Partnership Agreement and Certificate of Limited Partnership of
Borrower have not been modified since February 28, 2003; (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;
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(i) 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 February 28, 2003; (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 of the Mortgage
Amendments, 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;
(j) 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
February 28, 2003; (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;
(k) a certificate of the Secretary of CBL Holdings I, Inc. dated as of
the date hereof certifying (i) that attached thereto are true, correct and
complete copies of the organizational documents of each of the Additional Loan
Parties; (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 the Additional Loan Parties of the
Additional Collateral Documents and the other instruments, documents or
agreements executed and delivered by the Additional 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 the Additional
Loan Parties are hereinafter collectively referred to as the "Additional Loan
Party Documents"); and (iii) as to the incumbency and genuineness of the
signatures of the officers of CBL Holdings I, Inc. executing the Additional Loan
Party Documents to which any of the Additional Loan Parties is a party;
(l) the opinions of Borrower's in-house counsel and such other counsel
located in the jurisdictions where the Additional Collateral Properties are
located, 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
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(m) payment to Agent, for the benefit of Lenders, of all loan fees due
in connection with the increase in the amount of the Commitments.
Upon fulfillment of the foregoing conditions precedent, this Amendment
shall become effective as of the date hereof.
10. 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, administrative agency or
other governmental authority applicable to Borrower, Parent, CBL Holdings I,
Inc., or their respective properties; and
(f) this Amendment, the Amended Notes, the Guarantor Consents,
the Additional Collateral Documents, 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.
11. 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, the Properties Amendment Documents and the
Additional Loan Party Documents.
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12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
18. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this First 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
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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
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[Signatures Continued on Next Page]
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[Signature Page to First 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
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[Signatures Continued on Next Page]
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[Signature Page to First Amendment to Sixth
Amended and Restated Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: Vice President
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[Signatures Continued on Next Page]
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[Signature Page to First 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
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By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
-------------------------------
Title: Assistant Treasurer
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[Signatures Continued on Next Page]
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[Signature Page to First Amendment to Sixth
Amended and Restated Credit Agreement]
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
-------------------------------
Title: Vice President
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[Signatures Continued on Next Page]
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[Signature Page to First Amendment to Sixth
Amended and Restated Credit Agreement]
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
-------------------------------
Title: Senior Vice President
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[Signatures Continued on Next Page]
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[Signature Page to First Amendment to Sixth
Amended and Restated Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Senior Vice President
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[Signatures Continued on Next Page]
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[Signature Page to First Amendment to Sixth
Amended and Restated Credit Agreement]
SUNTRUST BANK, a Georgia Banking Corporation
By: /s/ W. Xxxx Xxxxxxx
------------------------------------
Name: W. Xxxx Xxxxxxx
-------------------------------
Title: Director
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SCHEDULE 1
Additional Collateral Properties
Project: Owner:
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1. Sunrise Mall CBL/Sunrise Mall, L.P., a
Brownsville, Texas Texas limited partnership
2. Harford Mall Harford Mall Business Trust,
Bel Air, Maryland a Maryland Bel Air, Maryland
business trust
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SCHEDULE 2
Ownership of Additional Loan Parties
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SCHEDULE 3
Litigation
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EXHIBIT A
Form of Environmental Indemnity Agreement
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EXHIBIT B
Form of Guaranty
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EXHIBIT C
Form of Security Deed
21
EXHIBIT D
Form of Closing Certificate and Affidavit
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