cbl-ex102_7.htm



Exhibit 10.2

FIRST AMENDMENT TO FORBEARANCE AGREEMENT

This FIRST AMENDMENT TO FORBEARANCE AGREEMENT (this “Amendment”), dated as of July 15, 2020, by and among CBL & Associates Limited Partnership, a Delaware limited partnership (the “Issuer”), each of the undersigned subsidiary guarantors (the “Subsidiary Guarantors”), CBL & Associates Properties, Inc., a Delaware corporation (the “Limited Guarantor” and, together with the Subsidiary Guarantors, the “Guarantors” and, together with the Issuer, the “Note Parties”), and each of the undersigned beneficial owners and/or investment advisors or managers of discretionary funds, accounts, or other entities for the holders or beneficial owners of the 2023 Notes (as defined below) (collectively, the “Holders”). 

 

WHEREAS, the Issuer is the issuer under that certain Indenture, dated as of November 26, 2013, among the Issuer, the Limited Guarantor and U.S. Bank, National Association, as trustee (the “Trustee”), as amended, modified or supplemented by that certain First Supplemental Indenture dated as of November 26, 2013 by and among the Issuer, the Limited Guarantor and the Trustee, the Second Supplemental Indenture dated as of December 13, 2016 by and among the Issuer, the Limited Guarantor and the Trustee and the Third Supplemental Indenture dated as of January 30, 2019 by and among the Issuer, the Limited Guarantor, the Subsidiary Guarantors and the Trustee (collectively, the “Indenture”), pursuant to which the Issuer’s $450 million 5.25% Senior Notes due 2023 (the “2023 Notes”), $300 million 4.60% Senior Notes due 2024 (the “2024 Notes”) and $625 million 5.95% Senior Notes due 2026 (the “2026 Notes” and, together with the 2024 Notes and 2023 Notes, the “Notes”) are outstanding;

WHEREAS, the Note Parties and the Holders entered into that certain Forbearance Agreement, dated as of June 30, 2020 (the “Forbearance Agreement”); 

WHEREAS, concurrently with the entry into the Forbearance Agreement, the Issuer and the Requisite Lenders entered into the Credit Facilities Forbearance Agreement; 

WHEREAS, the Issuer and the Holders desire to amend the Forbearance Agreement as set forth in this Amendment; and 

WHEREAS, terms used but not otherwise defined herein shall have the meanings given to them in the Forbearance Agreement or the Indenture, as applicable.

NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1. Amendment to Forbearance Agreement. 

(a)The second sentence of Section 1(a) of the Forbearance Agreement is hereby amended and restated as follows:

“As used herein, “Forbearance Termination Date” means the earliest to occur of (i) 11:59 p.m. (New York City time) on July 22, 2020, (ii) the occurrence of any Event of Default under the Indenture other than the 2023 Notes Interest Default and the 2026 Notes Interest Default; (iii) the failure of any Note Party to comply with any term, condition, or covenant set forth in this Agreement (including, for the avoidance of doubt, Section 4 hereof); (iv) the failure of any representation or warranty made by any Note Party under this Agreement to be true and complete in all material respects (except that such materiality qualifier shall not be applicable to the extent that any representation and warranty already is qualified or modified by materiality in the text thereof) as of the date when made or any other breach in any material 

 





 

respect of any such representation or warranty; (v) the entry by the Issuer into any support agreement or definitive documentation with respect to, or announcement by the Issuer of its intent to pursue, any other restructuring, recapitalization, refinancing, repurchase or other material transaction in respect of any material indebtedness of the Issuer or its subsidiaries, whether through a court-supervised insolvency proceeding or otherwise, without the express written consent of each Holder; (vi) the granting of any additional lien on any property or assets of the Limited Guarantor, the Issuer or any of their respective subsidiaries to secure all or any portion of the Credit Agreement dated as of January 30, 2019 by and among the Issuer, the Limited Guarantor, the subsidiary guarantors and the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent (the “Credit Facilities”); (vii) the occurrence of the Forbearance Termination Date (as defined in the 2026 Notes Forbearance Agreement (as defined below)) or (viii) the occurrence of the Forbearance Termination Date (as defined in the Credit Facilities Forbearance Agreement (as defined below)).”

Section 2. Conditions Precedent. The effectiveness of this Amendment and the obligations of the Holders hereunder is subject to the satisfaction, or waiver by the Holders, of the following conditions:

 

(a) The Note Parties and a majority of the holders of the 2026 Notes shall have entered into a forbearance agreement (as it may be amended from time to time, the “2026 Notes Forbearance Agreement”) pursuant to which such holders of the 2026 Notes will temporarily agree to forbear from delivery of a notice of acceleration on the 2026 Notes with respect to the 2026 Notes Interest Default, which 2026 Notes Forbearance Agreement shall be in the form attached hereto as Exhibit A and shall be effective prior to, or concurrent with, the execution of this Amendment. 

 

(b) The parties to the Credit Facilities Forbearance Agreement shall have entered into an amendment to the Credit Facilities Forbearance Agreement, which amendment shall be in the form attached hereto as Exhibit B (the “Credit Facilities Forbearance Amendment”) and shall be effective prior to, or concurrent with, the execution of this Agreement.

 

Section 3. Release.  In consideration of, among other things, each Holder’s execution and delivery of this Amendment, each Note Party, on behalf of itself and its agents, representatives, officers, directors, advisors, employees, subsidiaries, affiliates, successors and assigns (collectively, “Releasors”), hereby forever agrees and covenants not to sue or prosecute against any Releasee (as defined below) and hereby forever waives, releases and discharges, to the fullest extent permitted by law, each Releasee from any and all claims (including, without limitation, crossclaims, counterclaims, rights of setoff and recoupment), actions, causes of action, suits, debts, accounts, interests, liens, promises, warranties, damages and consequential damages, demands, agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments, executions, costs, expenses or claims whatsoever, that such Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether arising at law or in equity, against any or all of the Holders (and, in addition to the Holders, where a Holder is an investment manager or advisor for the beneficial holders of the 2023 Notes, such beneficial holders) in any capacity and their respective affiliates, subsidiaries, equityholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys, advisors and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the date hereof, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Indenture, the 2023 Notes or this Amendment, the Forbearance Agreement or transactions contemplated thereby or any actions or omissions in connection therewith, or (ii) any aspect of the dealings or relationships between or among the Releasors, on the one hand, and any or all of the Releasees, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof; provided that, notwithstanding anything to the contrary contained in this Section 3, (a) the Holders shall remain obligated under any confidentiality agreement 

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entered into with the Issuer, as the same may be further amended from time to time (the “NDA”), and this Section 3 does not apply to the NDA and (b) this Section 3 shall not apply to any claims resulting from the gross negligence or willful misconduct of any of the Releasees. In entering into this Amendment, each Note Party consulted with, and has been represented by, legal counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above do not depend in any way on any such representations, acts or omissions or the accuracy, completeness or validity thereof. The provisions of this Section 3 shall survive the termination of this Amendment, the Forbearance Agreement, the Indenture and the 2023 Notes and payment in full of the obligations thereunder.

 

Section 4. Key Terms Termsheet. The Issuer shall deliver to Akin and PJT the Key Terms Termsheet (as defined in the Credit Facilities Forbearance Amendment) provided pursuant to Section 5 of the Credit Facilities Forbearance Amendment.

 

Section 5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument.  Delivery of an executed counterpart of a signature page of this Amendment by electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

Section 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES THAT WOULD PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Section 7. Effectiveness. The Forbearance Agreement is and shall remain in full force and effect as of the date hereof except as modified by this Amendment.

Section 8. Relationship of Parties; No Third Party Beneficiaries. Nothing in this Amendment shall be construed to alter the existing debtor-creditor relationship between the Note Parties and the Holders.  This Amendment is not intended, nor shall it be construed, to create a partnership or joint venture relationship between or among any of the parties hereto.  No person other than a party hereto is intended to be a beneficiary hereof and no person other than a party hereto shall be authorized to rely upon or enforce the contents of this Amendment.

Section 9. Entire Agreement; Modification of Agreement; Verbal Agreements Not Binding.  This Amendment and the Forbearance Agreement constitute the entire understanding of the parties with respect to the subject matter hereof and thereof, and supersedes all other discussions, promises, representations, warranties, agreements and understandings between the parties with respect thereto.  This Amendment and the Forbearance Agreement may not be modified, altered or amended except by an agreement in writing signed by a duly authorized representative of all the parties hereto.  

Section 10. Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Section 11. Joinder of Additional Holders.  During the Forbearance Period (as defined in the Forbearance Agreement and amended herein) other beneficial holders may become Holders by executing a joinder to the Forbearance Agreement, as amended, the form of which shall be agreeable to the Issuer. 

 Section 12. Severability.  If any provision of this Amendment is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Forbearance Agreement, as amended, will remain in full force and effect, and any provision of this Amendment held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable, in 

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each case, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto.  Upon any such determination of invalidity, the parties hereto shall negotiate in good faith to modify this Amendment so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

[Signature Pages Follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.

 

NOTE PARTIES

 


	
CBL & ASSOCIATES LIMITED PARTNERSHIP,
	
	
as Issuer

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

 

By:      /s/ Farzana Khaleel

Name: Farzana Khaleel

Title:   Executive Vice President and Chief 

            Financial Officer

 
	
	
 
	
 
	
 

	
CBL & ASSOCIATES PROPERTIES, INC.,
	
	
as Limited Guarantor

 

By:      /s/ Farzana Khaleel

Name: Farzana Khaleel

Title:   Executive Vice President and Chief 

           Financial Officer
	



 

 


	
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




 

[Signature Page to First Amendment to the Forbearance Agreement (2023 Notes)]

 





 


	
Mayfaire GP, LLC

	
MDN/Laredo GP, LLC

	
Mortgage Holdings, LLC

	
Multi-GP Holdings, LLC

	
Pearland Ground, LLC

	
Pearland Town Center GP, LLC,

	
each as a Subsidiary Guarantor

 

By: CBL & Associates Limited Partnership, 

       as the chief manager of each of the above

       listed limited liability companies

 

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

 

	
 

 
	
By:      /s/ Farzana Khaleel

Name: Farzana Khaleel

Title:   Executive Vice President and Chief

            Financial Officer

 

 




 


	
Frontier Mall Associates Limited Partnership

	
Turtle Creek Limited Partnership,

	
each as a Subsidiary Guarantor

 

By: CBL & Associates Limited Partnership,

       as the general partner of each of the above

       listed limited partnerships

 

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

 

              By:      /s/ Farzana Khaleel______________

              Name: Farzana Khaleel

             Title:    Executive Vice President and 

                          Chief Financial Officer

	
 
	
 




 





[Signature Page to First Amendment to the Forbearance Agreement (2023 Notes)]

 





 


	
POM-College Station, LLC, 

     as a Subsidiary Guarantor

 

By: CBL & Associates Limited Partnership,

       its managing member

 

       By: CBL Holdings I, Inc., its general

              partner

 

              By:      /s/ Farzana Khaleel

              Name: Farzana Khaleel

              Title:   Executive Vice President and 

                          Chief Financial Officer




 


	
CBL RM-Waco, LLC, 

     as a Subsidiary Guarantor

 

By: CBL/Richland G.P., LLC, its managing member

 

       By: CBL & Associates Limited Partnership, 

              as the chief manager of the managing member

              of the above listed limited liability company

            

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

 

                     By:     /s/ Farzana Khaleel

                     Name: Farzana Khaleel

                     Title:   Executive Vice President and 

                                 Chief Financial Officer




 


	
Arbor Place Limited Partnership, as a Subsidiary Guarantor

	
By:
	
Multi-Holdings GP, LLC, its general partner

	
Imperial Valley Mall II, L.P., as a Subsidiary Guarantor

	
By:
	
Imperial Valley Mall GP, LLC, its general partner

	
Imperial Valley Mall, L.P., as a Subsidiary Guarantor

	
By:
	
CBL/Imperial Valley GP, LLC, its general partner

	
Mayfaire Town Center, LP, as a Subsidiary Guarantor

	
By:
	
Mayfaire GP, LLC, its general partner




[Signature Page to First Amendment to the Forbearance Agreement (2023 Notes)]

 





 


	
Pearland Town Center Limited Partnership, as a Subsidiary Guarantor

 

By: Pearland Town Center GP, LLC, its general partner

 

       By: CBL & Associates Limited Partnership, 

              as the chief manager of the general partner of 

              each of the above listed limited partnerships

 

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

 

                     By:      /s/ Farzana Khaleel

                     Name: Farzana Khaleel

                     Title:   Executive Vice President and Chief

                                 Financial Officer




 


	
CBL SM-Brownsville, LLC, as a Subsidiary Guarantor

	
By:
	
CBL/Sunrise GP, LLC, its chief manager

	
Mall Del Norte, LLC, as a Subsidiary Guarantor

By: MDN/Laredo GP, LLC, its chief manager

 

       By: CBL & Associates Limited Partnership,

              as the chief manager of the chief manager of

              each of the above limited liability companies

 

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

 

                     By: /s/ Farzana Khaleel

                     Name: Farzana Khaleel

                     Title:   Executive Vice President and Chief

                                 Financial Officer




 

 


	
CBL/Westmoreland I, LLC, as a Subsidiary Guarantor

	
CBL/Westmoreland II, LLC, as a Subsidiary Guarantor

	
 

	
By:
	
CW Joint Venture, as the chief manager of each of the




[Signature Page to First Amendment to the Forbearance Agreement (2023 Notes)]

 





 


	
 
	
above listed limited liability companies

 

By: CBL & Associates Limited Partnership, its manager

 

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

 

              By:     /s/ Farzana Khaleel

              Name: Farzana Khaleel

              Title:   Executive Vice President and Chief 

                          Financial Officer




 


	
CBL/Westmoreland, L.P., as a Subsidiary Guarantor

 

By: CBL/Westmoreland I, LLC, its general partner

 

       By: CW Joint Venture, its chief manager

 

              By: CBL & Associates Limited Partnership, 

                     its manager

 

                     By: CBL Holdings I, Inc., its general     

                            partner

 

                            By:      /s/ Farzana Khaleel

                            Name: Farzana Khaleel

                            Title:   Executive Vice President and

                                        Chief Financial Officer

	
 

CW Joint Venture, LLC, as a Subsidiary Guarantor

 

	
By:
	
CBL & Associates Limited Partnership, 

	
 
	
its manager 

 

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

 

       By:      /s/ Farzana Khaleel

       Name: Farzana Khaleel

       Title:   Executive Vice President and Chief

                   Financial Officer




 

 

[Signature Page to First Amendment to the Forbearance Agreement (2023 Notes)]