Amendment to Forbearance Agreement, dated as of July 15, 2020, by and among CBL & Associates Limited Partnership, each of the subsidiary guarantors and pledgors party thereto, CBL & Associates Properties, Inc. and Wells Fargo Bank, National Association, as administrative agent

EX-10.3 4 cbl-ex103_73.htm EX-10.3 cbl-ex103_73.htm

Exhibit 10.3

WELLS FARGO BANK, NA

301 South College Street, 15th Floor

Charlotte, NC 28202

July 15, 2020

 

CBL & Associates Limited Partnership

c/o CBL & Associates Properties, Inc.

2030 Hamilton Place Blvd., Suite 500

Chattanooga, Tennessee ###-###-####

Attention: Chief Financial Officer

 

 

Ladies and Gentlemen:

Reference is made to (i) the Credit Agreement, dated January 30, 2019 (as amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among CBL & ASSOCIATED LIMITED PARTNERSHIP, a Delaware limited partnership (“Borrower”), CBL & ASSOCIATES PROPERTIES, INC., a Delaware corporation (“Parent”), the lenders from time to time party thereto (the “Lenders”), and Wells Fargo Bank, National Association, as administrative agent (“Administrative Agent”) for itself and for the benefit of the Lenders, and (ii) that certain Forbearance Agreement, dated June 30, 2020 (the “Existing Forbearance Agreement”), between Borrower and Administrative Agent, on behalf of the Lenders.  Capitalized terms used herein and not otherwise defined shall have the meaning given to such terms in the Credit Agreement or the Existing Forbearance Agreement, as applicable.  

Obligors have requested that Administrative Agent and Lenders modify the Forbearance Agreement, and Administrative Agent and Lenders are willing to do so, subject to the terms and conditions set forth in this letter agreement (the “Amendment” and the Existing Forbearance Agreement after giving effect to this Amendment, the “Forbearance Agreement”).

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Administrative Agent and Obligors hereby agree as follows:

1.In order to acknowledge the expiration of the cure period under the Indenture with respect to the June 15^th Interest Payment, the following modifications are made to the Forbearance Agreement:

(a)Section 1(a)(i) and Section 1(a)(ii) of the Forbearance Agreement are hereby restated as follows:

 

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(b)Section 3(c) of the Forbearance agreement is restated as follows:

(c)The proviso in the penultimate sentence of the final paragraph of Section 3 of the Forbearance Agreement is restated as follows:

“provided, however, to the extent that an Event of Default under the Indenture arising solely from the nonpayment of the June 1^st Interest Payment and the June 15^th Interest Payment is waived by the applicable Senior Noteholders, in

 

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accordance with the Indenture on or before the Forbearance Termination Date or the payment of the June 1^st Interest Payment and the June 15^th Interest Payment is made, and as a result of which the Senior Notes cannot be accelerated in accordance with the terms of the Indenture, then any Cross Default arising solely from the nonpayment of the June 1st Interest Payment and the June 15^th Interest Payment shall also be waived under the Credit Agreement.”

2.The date and time set forth in Section 3(a) of the Forbearance Agreement is hereby amended to be “11:59 p.m. (Eastern Daylight Time) on July 22, 2020”;

3.On or prior to the date of this Amendment and as a condition to its effectiveness, Obligors shall have paid to Jones Day all legal fees incurred-to-date and for which an invoice has been provided prior to the execution of this Amendment as provided for in that certain fee reimbursement letter dated May 19, 2020;

4.On or prior to the date of this Amendment and as a condition to its effectiveness, Borrower shall deliver to Administrative Agent a fully executed copy of forbearance agreement by and among Obligors and a majority of Senior Noteholders holding the 5.250% Senior Notes Due December 1, 2023 in the original principal amount of $450,000,000 and a majority of Senior Noteholders holding the 5.95% Senior Notes Due December 15, 2026 in the original principal amount of $625,000,000, which forbearance agreement (a) shall have a scheduled expiration date not earlier than 11:59 p.m. (Eastern Daylight Time) on July 22, 2020, (b) shall not include or be contingent upon the delivery of any collateral or payments on, or otherwise in respect of, the Senior Notes, including, without limitation, any forbearance or other fee arising under such agreement, and (c) shall otherwise be in form and substance acceptable to Requisite Lenders;

5.On or prior to 5:00 p.m. eastern time on Friday, July 17, 2020, Obligors shall deliver a written proposal documenting the Obligors proposed key terms for a restructuring of the Credit Agreement Indebtedness and Bond Indebtedness, which proposal must detail, at a minimum, (a) the Obligors’ proposals regarding the granting of additional collateral (to be specified by property location) to Administrative Agent, for the benefit of the Lenders, and any collateral (to be specified by property location) proposed to be granted to support Bond Indebtedness, (b) the proposed amount of Bond Indebtedness, the interest rate and other economic terms thereon, as well as the proposed percentage of equitization of Bond Indebtedness, (c) the proposed percentage of equity to be given to existing management or existing equity holders (including through any “MIP”), and (d) the amount of any cash payments proposing to be made to the Lenders or the Bond Indebtedness (the “Key Terms Termsheet”), and any failure to deliver such Key Terms Termheet when and as required hereunder shall constitute a Forbearance Default; and

6.Obligors will facilitate an all advisor call (and such calls shall occur) to discuss the Key Terms Termsheet on Saturday, July 18^th amongst the Obligors’ counsel and advisors,  Administrative Agent’s counsel and advisors, and Bondholders’ counsel and advisors, and on daily basis thereafter to the extent requested by Administrative Agent, and any failure to do either of the foregoing shall constitute a Forbearance Default.

 

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CBL & Associates Limited Partnership

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To facilitate execution, this Amendment may be executed in as many counterparts as may be convenient or required. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign).  The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.  Each party hereto hereby waives any defenses to the enforcement of the terms of this Agreement based on the form of its signature, and hereby agrees that such electronically transmitted or signed signatures shall be conclusive proof, admissible in judicial proceedings, of such party’s execution of this Amendment. Even though the parties agree that electronic signatures are legally enforceable and intended to be effective for all purposes, the signing parties agree if requested by Administrative Agent in its sole discretion to promptly deliver to Administrative Agent the requested original document bearing an original manual signature, to the extent required or advisable to be delivered in connection with any program made available to Administrative Agent or any of its affiliates by the Federal Reserve, U.S. Treasury Department or any other federal or state regulatory body.

As of the date of this Amendment, but without limiting the limited reservation of rights in Section 25(a) of the Forbearance Agreement, Obligors, to the fullest extent permitted by law, each hereby releases, and forever discharges Administrative Agent, each Lender and each of its or their respective trustees, officers, directors, participants, beneficiaries, agents, attorneys, affiliates and employees, and the successors and assigns of the foregoing (collectively, the “Released Parties”), from any and all claims, actions, causes of action, suits, defenses, set-offs against the Obligations, and liabilities of any kind or character whatsoever, known or unknown, contingent or matured, suspected or unsuspected, anticipated or unanticipated, liquidated or unliquidated, claimed or unclaimed, in contract or in tort, at law or in equity, or otherwise, including, without limitation, claims or defenses relating to allegations of fraud, duress, bad faith and usury, which relate, in whole or in part, directly or indirectly, to: (A) the Facility; (B) the Loan Documents; (C) the Obligations; (D) the Collateral; or (E) the Forbearance Agreement, including, without limitation, the negotiation, execution, performance or enforcement of the Loan Documents and this Agreement, any claims, causes of action or defenses based on the negligence of any of the Released Parties or on any “lender liability” theories of, among others, bad faith, unfair dealing, duress, coercion, control, misrepresentation, omissions, misconduct, overreaching, unconscionability, disparate bargaining position, reliance, equitable subordination, fraud, or otherwise, and any claim based upon fraud, duress, illegality or usury (collectively, the “Released Claims”), in each case other than in connection with the gross negligence or willful misconduct of any Released Party.  No Obligor shall intentionally, willfully or knowingly commence, join in, prosecute, or participate in any suit or other proceeding in a position which is adverse to any of the Released Parties, arising directly or indirectly from any of the Released Claims.  The Released Claims include, but are not

 

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Loan No. 12503DAN8

 

limited to, any and all unknown, unanticipated, unsuspected or misunderstood claims and defenses, all of which are released by the provisions hereof in favor of the Released Parties.

Obligors each acknowledges and agrees that it has no defenses, counterclaims, offsets, cross-complaints, causes of action, rights, claims or demands of any kind or nature whatsoever, including, without limitation, any usury or lender liability claims or defenses, arising out of the Facility or the Loan Documents or the Forbearance Agreement, that can be asserted either to reduce or eliminate all or any part of any of Obligor’s liability to Administrative Agent and Lenders under the Loan Documents, or to seek affirmative relief or damages of any kind or nature from Administrative Agent or Lenders, for or in connection with the Facility or any of the Loan Documents.  Each of Obligors further acknowledges that, to the extent that any such claim does in fact exist, it is being fully, finally and irrevocably released by them as provided in this Amendment.

Each of Obligors hereby waives the provisions of any applicable laws restricting the release of claims which the releasing parties do not know or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases.  Accordingly, each of Obligors hereby agrees, represents and warrants to Administrative Agent and each Lender that it understands and acknowledges that factual matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and each of Obligors further agrees, represents and warrants that the releases provided herein have been negotiated and agreed upon, and in light of, that realization and that Obligors nevertheless hereby intend to release, discharge and acquit the parties set forth hereinabove from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related to the Released Claims and all dealings in connection therewith.  In making the releases set forth in this Amendment, each of Obligors acknowledges that it has not relied upon any representation of any kind made by any Released Party. It is understood and agreed by Released Parties that the acceptance of delivery of the releases set forth in this Amendment shall not be deemed or construed as an admission of liability by any of the Released Parties and Administrative Agent, on behalf of itself and the other Released Parties, hereby expressly denies liability of any nature whatsoever arising from or related to the subject of such releases.

The substantive laws of the State of New York shall govern the construction of this Amendment and the rights and remedies of the parties hereto.

Section 13.5 and Section 13.13 of the Credit Agreement are hereby incorporated into this Amendment by this reference as if set forth in full herein.

Nothing in this letter shall alter of affect any provision, condition, or covenant contained in any of the Loan Documents or affect or impair any rights, powers, or remedies of Administrative Agent or any Lender, or shall modify or amend any provisions of the Forbearance Agreement, other than as expressly set forth above.  The provisions of the Loan Documents and the Forbearance Agreement shall continue in full force and effect.

(SIGNATURES ON FOLLOWING PAGE)

 

Signature Page – CBL Amendment to the Forbearance Agreement

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Loan No. 12503DAN8

 

IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Amendment as of the day and year first above written.

 

 

 

“BORROWER”

 

CBL & Associates Limited Partnership,

a Delaware limited partnership

 

By: CBL Holdings I, Inc.,

Its sole general partner

 

By:/s/ Farzana Khaleel

    Name:Farzana Khaleel

    Title:Executive Vice President and Chief Financial Officer

 

 

“PARENT”

 

CBL & Associates Properties, Inc.,

a Delaware corporation

 

By:/s/ Farzana Khaleel

Name:Farzana Khaleel

Title:Executive Vice President and Chief Financial Officer

 

 

 

 

 

 

 

[Signature Pages Continue on Following Page]

 

 

Signature Page – CBL Amendment to the Forbearance Agreement

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Loan No. 12503DAN8

 

“ADMINISTRATIVE AGENT”

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

a national banking association,

as Administrative Agent

 

By:/s/ Joel Bartis______________________

Name:Joel Bartis

Title:Senior Vice President

 

 

 

 

 

 

 

 

[Signature Pages Continue on Following Page]

 

Signature Page – CBL Amendment to the Forbearance Agreement

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Loan No. 12503DAN8

 

“SUBSIDIARY GUARANTORS”

 

CBL/Imperial Valley GP, LLC

CBL/Kirkwood Mall, LLC

CBL/Madison I, LLC

CBL/Richland G.P., LLC

CBL/Sunrise GP, LLC

Cherryvale Mall, LLC

Hixson Mall, LLC

Imperial Valley Mall GP, LLC

JG Winston-Salem, LLC

Kirkwood Mall Acquisition LLC

Kirkwood Mall Mezz LLC

Layton Hills Mall CMBS, LLC

Madison/East Towne, LLC

Madison/West Towne, LLC

Madison Joint Venture, LLC

Mayfaire GP, LLC

MDN/Laredo GP, LLC

Mortgage Holdings, LLC

Multi-GP Holdings, LLC

Pearland Ground, LLC

Pearland Town Center GP, LLC

 

 

 

By:/s/ Farzana Khaleel

Name:Farzana Khaleel

Title:Executive Vice President and Chief Financial Officer

 

Frontier Mall Associates Limited Partnership

Turtle Creek Limited Partnership

 

 

 

Title:Executive Vice President and Chief Financial Officer

 

 

[Signature Pages Continue on Following Page]

 

 

Signature Page – CBL Amendment to the Forbearance Agreement

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Loan No. 12503DAN8

 

POM-College Station, LLC

 

 

 

Title:Executive Vice President and Chief Financial Officer

 

CBL RM-Waco, LLC

 

 

 

 

 

Arbor Place Limited Partnership

 

 

Imperial Valley Mall II, L.P.

 

 

Imperial Valley Mall, L.P.

 

 

Mayfaire Town Center, LP

 

 

Pearland Town Center Limited Partnership

 

 

 

 

Signature Page – CBL Amendment to the Forbearance Agreement

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Loan No. 12503DAN8

 

CBL SM-Brownsville, LLC

 

 

Mall Del Norte, LLC

 

 

 

 

 

CBL/Westmoreland I, LLC

CBL/Westmoreland II, LLC

 

 

 

 

 

CBL/Westmoreland, L.P.

 

 

 

 

 

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Signature Page – CBL Amendment to the Forbearance Agreement

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Exhibit 10.3

 

CW Joint Venture, LLC

 

 

 

 

 

 

 

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“PLEDGORS”

 

CBL & Associates Limited Partnership

 

By: CBL Holdings I, Inc., its general partner

 

By:/s/ Farzana Khaleel

Name:Farzana Khaleel

Title:Executive Vice President and Chief Financial Officer

 

Madison Joint Venture, LLC

Mortgage Holdings, LLC

 

 

By:CBL Holdings I, Inc., its general partner

 

 

 

 

 

[End of Signature Pages]