Exhibit 10.22
MASTER TRANSACTION AGREEMENT
This MASTER TRANSACTION AGREEMENT (the "Agreement") is made as of April 27,
2005, by and among: REJ REALTY LLC, a Delaware limited liability company ("REJ
Realty"), JG MANAGER LLC, an Ohio limited liability company ("JGM"), JG GULF
COAST MEMBER LLC, an Ohio limited liability company ("Xxxxxx Member"), JG GULF
COAST TOWN CENTER LLC, an Ohio limited liability company ("JG Gulf Coast"), CBL
& ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership ("CBL") and
CBL/GULF COAST, LLC, a Florida limited liability company ("CBL Member").
RECITALS
WHEREAS, as of the date of this Agreement, REJ Realty owns ninety-nine
percent (99%) of the member interests in Xxxxxx Member; and
WHEREAS, as of the date of this Agreement, JGM owns one percent (1%) of the
member interests in Xxxxxx Member; and
WHEREAS, REJ Realty has heretofore contributed its entire member interest
in JG Gulf Coast to Xxxxxx Member; and
WHEREAS, JGM has heretofore contributed its entire member interest in JG
Gulf Coast to Xxxxxx Member; and
WHEREAS, as of the date of this Agreement, CBL owns the entire member
interest in CBL Member; and
WHEREAS, CBL will cause CBL Member to make a capital contribution to JG
Gulf Coast and to acquire a member interest in JG Gulf Coast, as provided in
this Agreement and the LLC Agreement (as hereinafter defined); and
WHEREAS, the parties hereto desire to make provision for the other
agreements and transactions contemplated by this Agreement; and
WHEREAS, the definitions of capitalized terms used in this Agreement and
not otherwise defined herein are set forth on Appendix A attached hereto and
made a part hereof, and if not defined in Appendix A, shall be as set forth in
the LLC Agreement.
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NOW, THEREFORE, in consideration of the foregoing premises and other good,
valid, and binding consideration, the receipt and sufficiency of which is hereby
acknowledged and intending to be legally bound, the Parties agree as follows:
ARTICLE 1
LLC AGREEMENT AND CLOSING
1.1 LLC Agreement. For the purposes of this Agreement, the term LLC
Agreement shall have the meaning set forth in Appendix A and shall include the
agreements, exhibits, schedules and other documents set forth in such
definition.
1.2 Prior Actions.
(a) Xxxxxx Member was formed by filing Articles of Organization with
the Secretary of State of Ohio on April 15, 2005.
(b) Each of REJ Realty and JGM contributed its entire member interest
in JG Gulf Coast to Xxxxxx Member on April 19, 2005.
(c) CBL Member was formed by filing Articles of Organization with the
Division of Corporations of the Florida Department of State on
April 12, 2005.
1.3 Acknowledgments. The Parties acknowledge that:
(a) As of the date hereof, and before giving effect to the
transactions contemplated by this Agreement to take place on the
Closing Date, the amount of Xxxxxx Member's Capital Account is
Forty Million Three Hundred Thirty-Four Thousand Nine Hundred
Seventy-Eight Dollars ($40,334,978.00).
(b) After giving effect to the transactions contemplated by this
Agreement to take place on the Closing Date, the amount of Xxxxxx
Member's Capital Account will be zero, and the amount of CBL
Member's Capital Account will be equal to the CBL Member Initial
Capital Contribution.
1.4 Closing Date. Subject to the prior satisfaction or waiver of all of the
conditions set forth in Article 5, the closing of the transactions contemplated
by this Agreement (the "Closing") shall be held at a location that is agreeable
to all of the Parties no later than the fifth (5th) Day following the date as of
which all of the conditions precedent set forth in Article 5 have been satisfied
or waived by the Party entitled to the benefit of such condition(s), or on such
other date as may be agreed to in writing by the Parties (the "Closing Date").
1.5 Closing Transactions. On the Closing Date, subject to the satisfaction
or waiver of the conditions precedent set forth in Article 5, the following
transactions shall take place in the order set forth below:
(a) REJ Realty and JGM shall cause Xxxxxx Member to execute and
deliver the LLC Agreement;
(b) CBL shall cause CBL Member to execute and deliver the LLC
Agreement;
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(c) CBL shall cause CBL Member to contribute the CBL Member Initial
Capital Contribution to the capital of JG Gulf Coast by wire
transfer of immediately available funds to the account designated
by JG Gulf Coast;
(d) JG Gulf Coast shall distribute an amount equal to the CBL Member
Initial Capital Contribution to Xxxxxx Member by wire transfer of
immediately available funds to the account designated by REJ
Realty.
(e) CBL shall cause Property Manager to execute and deliver the
Property Management Agreement; and
(f) CBL Member shall cause JG Gulf Coast to execute and deliver the
Property Management Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF EACH OF THE PARTIES
Except as otherwise set forth below, each of the Parties hereby represents
and warrants to each other Party, as of the date hereof and the Closing Date, as
follows:
2.1 Corporate Status; Authorization. Such Party is duly organized, validly
existing and in good standing under and by virtue of the laws of the state of
its organization. The Person(s) executing this Agreement on such Party's behalf
are duly elected, qualified and acting as its officer(s), manager(s) or
member(s) (as the case may be). All actions and resolutions, whether
partnership, corporate or otherwise, necessary to authorize such Party to enter
into this Agreement have been taken and adopted. Such Party has, and the Persons
executing this Agreement on its behalf have, all requisite power and authority
and has (have) been duly authorized to enter into this Agreement. This Agreement
has been duly executed on behalf of such Party. Such Party has full right and
lawful authority to enter into and perform its covenants and obligations under
this Agreement for the full term hereof, and has full right and lawful authority
to make its representations and warranties hereunder. Upon execution of this
Agreement by each Party hereto, this Agreement will constitute the legal, valid
and binding obligation of such Party and will be enforceable against it and its
successors and assigns in accordance with its terms, except as such enforcement
may be limited by (a) bankruptcy, insolvency, moratorium, or other similar laws
affecting a creditor's rights and remedies or the relief of debtors generally at
the time in effect, (b) the discretion of the court before which any proceeding
involving the same may be brought, and (c) equitable principles at the time in
effect limiting the remedy of specific performance.
2.2 Noncontravention. Neither the execution, delivery or performance by
such Party of this Agreement or the transactions contemplated hereby will
conflict with, or will result in a breach of, or will constitute a default
under, (a) any agreement or instrument by which such Party or any of its
Affiliates may be bound or (b) any judgment, statute, rule, law, order, decree,
writ or injunction of any court or Governmental Agency, as defined below,
applicable to such Party or any of their Affiliates and/or their respective
property and assets for which consent has not been obtained.
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2.3 Consents and Approvals. All consents by third Persons which such Party
is, by the terms of its agreements, if any, with any such third Persons,
required to obtain prior to its execution of this Agreement have been so
obtained by them.
2.4 No Actions or Suits. There are no actions, suits, proceedings, or
investigations pending or, to the knowledge of such Party, threatened against
such Party, any of its Affiliates, or any of their respective properties,
assets, or businesses in any court or before or by any federal, state,
provincial, or other governmental department or agency, whether of the United
States, of any of its states, possessions or territories, or of any foreign
nation (a "Governmental Agency") or any arbitrator that could, if adversely
determined, reasonably be expected to materially impair such Party's ability to
perform its obligations under this Agreement or any Affiliate's ability to
perform its obligations under the LLC Agreement. Neither such Party nor any of
its Affiliates has received any currently effective notice of any default, and
neither such Party nor any of its Affiliates is in default, under any applicable
order, writ, injunction, decree, or award of any court, any Governmental Agency,
or any arbitrator, in each case, that could reasonably be expected to materially
impair such Party's ability to perform its obligations under this Agreement or
any Affiliate's ability to perform its obligations under the LLC Agreement.
ARTICLE 3
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF JGM, XXXXXX MEMBER AND REJ REALTY
3.1 Real Estate Matters. To the best knowledge of JGM, REJ Realty and
Xxxxxx Member, respectively:
(a) There are no violations of any restrictive covenants affecting
the Real Estate;
(b) There are no uncured notices, suits, orders, decrees or judgments
relating to violations of any laws, ordinances, codes,
regulations or other requirements of any Governmental Agency
having jurisdiction over the Real Estate or any part thereof
which would have a materially adverse effect upon the development
of the Real Estate or the Project, including, but not limited to,
any eminent domain proceedings;
(c) There are no suits, actions or proceedings pending or threatened
against or affecting the Real Estate before any court or
Governmental Agency that, if adversely determined, would have a
materially adverse effect upon the development of the Real Estate
or the Project, including, but not limited to, any eminent domain
proceedings;
(d) Neither JG Gulf Coast, JGM, Xxxxxx Member nor REJ Realty is in
default with respect to, nor has notice of violation of, any
judgment, order, writ, injunction, rule or regulation of any
court or Governmental Agency to which JG Gulf Coast, JGM, Xxxxxx
Member or REJ Realty is subject in any way affecting the Real
Estate that would have a materially adverse effect upon the
development of the Real Estate or the Project, including, but not
limited to, any eminent domain proceedings;
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(e) There are no material agreements to which JG Gulf Coast, JGM,
Xxxxxx Member, REJ Realty or any of their Affiliates is a party
affecting any of the Real Estate or any use of the Real Estate
that have not been disclosed to CBL or its Affiliates;
(f) Except as disclosed in the environmental reports and studies
identified on Exhibit B attached hereto (the "Environmental
Reports"), there are no Hazardous Substances on, under, in or
about the Real Estate. For the purposes of this Agreement,
"Hazardous Substances" shall mean and include, but shall not be
limited to, materials which are included under or regulated by
any local, state or federal law, rule or regulation pertaining to
environmental regulation, contamination, clean up or disclosure;
(g) Except as disclosed in writing to CBL and/or its Affiliates prior
to the date hereof, there are no tenancies, occupancies or
licenses in or to the Real Estate under agreements entered into
by JG Gulf Coast, JGM, Xxxxxx Member, REJ Realty or any of their
Affiliates: and
(h) JG Gulf Coast, JGM, Xxxxxx Member and REJ Realty have made a
good-faith, reasonable effort to provide CBL with all of the
facts within the knowledge and possession of JG Gulf Coast, JGM,
Xxxxxx Member or REJ Realty concerning JG Gulf Coast and the
Project that, in their reasonable judgment, could be expected to
be material to CBL's due diligence evaluation of the Project.
ARTICLE 4
ADDITIONAL AGREEMENTS
4.1 Access to Information. Each Party agrees that, from and after the date
hereof and until the first to occur of the Closing and the termination of this
Agreement in accordance with Article 6, each other Party and their respective
authorized representatives will have reasonable access during normal business
hours to the premises, properties, books and records of JG Gulf Coast as such
other Parties may reasonably request; provided, in each case, that such access
does not disrupt the normal business activities of JG Gulf Coast and shall be at
the expense of the Party requesting such access.
4.2 Further Actions. Subject to the terms and conditions hereof, each Party
agrees to act reasonably and in good faith and to use its commercially
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper, or advisable to consummate and
make effective the transactions contemplated hereunder and under the LLC
Agreement to be entered into by it or its Affiliates, except that no Party shall
be required to waive or cause to be waived or cause its Affiliates to waive or
cause to be waived any of the conditions to closing set forth in Article 5. Each
Party shall furnish to each other Party all information and assistance that such
other Party may reasonably request in connection with the foregoing.
4.3 Unwind Option.
(a) JG Gulf Coast shall use its commercially reasonable efforts to
obtain all of the Required Post-Closing Approvals no later than
the second anniversary of the Closing Date (the "Second
Anniversary"). CBL Member and Property Manager shall use, and CBL
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shall cause CBL Member and Property Manager to use, their
respective commercially reasonable efforts to assist JG Gulf
Coast, in their respective capacities as Managing Member and
Property Manager, in obtaining all of the Required Post-Closing
Approvals no later than the Second Anniversary. Xxxxxx Member
shall extend, and REJ Realty and JGM shall cause Xxxxxx Member to
extend, reasonable cooperation to JG Gulf Coast, CBL Member and
Property Manager in their efforts to so obtain the Required
Post-Closing Approvals, except that Xxxxxx Member shall not be
required to incur any significant out-of-pocket expenses or
undertake any obligations in connection with such cooperation
that it would not otherwise be obligated to incur or undertake
pursuant to the LLC Agreement. CBL Member and Property Manager
shall extend, and CBL shall cause CBL Manager and Property
Manager to extend, reasonable cooperation to Xxxxxx Member in
connection with the Parties' efforts to so obtain the Required
Post-Closing Approvals, except that CBL Member and Property
Manager shall not be required to incur any significant
out-of-pocket expenses or undertake any obligations in connection
with such cooperation that they would not otherwise be obligated
to incur or undertake pursuant to the LLC Agreement (as to CBL
Member) or the Property Management Agreement (as to Property
Manager).
(b) CBL Member in its capacity as Managing Member shall provide
prompt written notice to Xxxxxx Member on each occasion when JG
Gulf Coast has obtained a Required Post-Closing Approval. Xxxxxx
Member shall provide prompt written notice to CBL Member on each
occasion when Xxxxxx Member has obtained a Required Post-Closing
Approval. When all of the Required Post-Closing Approvals have
been obtained, this Section 4.3 shall thereupon become null and
void and of no further force or effect, and CBL Member in its
capacity as Managing Member shall provide written certification
to such effect to Xxxxxx Member. When any individual Required
Post-Closing Approval has been once obtained, such Required
Post-Closing Approval shall be deemed to have been conclusively
and irrevocably obtained for all purposes of this Section 4.3,
notwithstanding that it may subsequently become necessary or
advisable to seek an additional or modified approval from the
same party concerning the same or similar subject matter or
otherwise in connection with the Project.
(c) If JG Gulf Coast has failed to obtain all of the Required
Post-Closing Approvals by the Second Anniversary, except as a
result of any breach by CBL or CBL Member of their obligations
under the second or fourth sentence of Section 4.3(a) above, by
CBL Member of its obligations under the LLC Agreement, or by
Property Manager of its obligations under the Property Management
Agreement, then, for a period of time beginning on the Day after
the Second Anniversary and ending on the Day that is six (6)
months after the Second Anniversary (the "Unwind Option Period"),
CBL shall have the right to require Xxxxxx Member to purchase, or
cause one of its Affiliates to purchase, all of the Membership
Interests of CBL Member and its Affiliates, if any, in accordance
with the provisions of this Section 4.3 (the "Unwind Right").
(d) The failure by JG Gulf Coast to obtain any or all of the Required
Post-Closing Approvals by the Second Anniversary shall not
constitute a breach of any Party's obligations under this
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Agreement or a Default under the LLC Agreement unless, as to
Xxxxxx Member, JGM and REJ Realty, such failure results from a
breach by Xxxxxx Member, JGM or REJ Realty of its obligations
under the third sentence of Section 4.3(a) above or unless, as to
CBL and CBL Member, such failure results from a breach by CBL or
CBL Member of its obligations under the second or fourth sentence
of Section 4.3(a) above or a breach by CBL, Property Manager or
CBL Member described in the first sentence of Section 4.3(c)
above.
(e) The purchase price for the acquisition by Xxxxxx Member or its
Affiliates of all of the Membership Interests of CBL Member and
its Affiliates, if any, upon an exercise by CBL of the Unwind
Right (the "Unwind Purchase Price") shall equal the sum of (i)
CBL Member's and its Affiliates', if any, unreturned Initial
Capital Contribution; (ii) CBL Member's and its Affiliates' if
any, unreturned Mandatory Contributions; (iii) CBL Member's and
its Affiliates', if any, unreturned Non-Required Contributions;
and (iv) the accrued but unpaid Interest/Return on the amounts
described in clauses (i), (ii) and (iii) of this subsection (e).
(f) CBL may exercise the Unwind Right by giving written notice (the
"Unwind Notice") to Xxxxxx Member at any time after the
commencement of and prior to the expiration of the Unwind Option
Period. The Unwind Notice shall identify the Required
Post-Closing Approvals that have not been obtained and shall set
forth CBL's good faith calculation of the Unwind Purchase Price.
REJ Realty shall have the right to inspect the books and records
of JG Gulf Coast and CBL Member for the purpose of verifying the
calculation of the Unwind Purchase Price.
(g) The closing of the sale of all of the Membership Interest of CBL
Member and its Affiliates, if any, pursuant to this Section 4.3
(the "Unwind Closing") shall be held at the principal offices of
JG Gulf Coast, unless otherwise mutually agreed, on a mutually
acceptable date (the "Unwind Closing Date") not more than ninety
(90) Days after the receipt by Xxxxxx Member of the Unwind
Notice. The Unwind Closing may be delayed for such time as may
reasonably be required (but in no event more than an additional
sixty (60) Days beyond the aforementioned ninety-Day period
following Xxxxxx Member's receipt of the Unwind Notice) to allow
Xxxxxx Member to verify the calculation of the Unwind Purchase
Price and allow JG Gulf Coast to obtain any material third-party
consents or waivers, e.g., lender consents or waivers, that may
be required in order to avoid a default or breach arising out of
the exercise of the Unwind Right under any agreements or
obligations of JG Gulf Coast.
(h) At the Unwind Closing, CBL Member and its Affiliates, if any,
shall transfer such Membership Interest to or as directed by
Xxxxxx Member or its designee free and clear of any liens,
encumbrances or any interests of any third party and shall
execute or cause to be executed any and all documents required to
fully transfer such Membership Interest to Xxxxxx Member or its
designee including, but not limited to, any documents necessary
to evidence such transfer, and all documents required to release
the interest of any other party who may claim an interest in such
Membership Interest. Following the Unwind Closing Date, CBL
Member and its Affiliates, upon consummation of the Unwind
Closing, shall cease for all purposes to be a member of JG Gulf
Coast and shall have no further rights to any distributions from
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JG Gulf Coast, and all such rights shall vest in the Xxxxxx
Member or its designee. At the Unwind Closing, Xxxxxx Member or
its Affiliates shall provide CBL Member and its Affiliates, if
any, with such additional agreements or undertakings as CBL
Member may reasonably require to replace or hold CBL Member and
its Affiliates harmless from any liability, loss, cost or expense
arising out of any then-outstanding loans (other than loans that
are Mandatory Contributions or Non-Required Contributions, which
shall be included in the Unwind Purchase Price as provided in
paragraph (e) of this Section 4.3) and/or Affiliate Guarantees
theretofore provided by CBL Member or its Affiliates.
(i) Xxxxxx Member and CBL Member and their respective Affiliates will
cooperate so as to minimize to the extent reasonably possible any
disruptions to JG Gulf Coast's administration and operations
arising out of the exercise of the Unwind Right, including
cooperation in effecting transition arrangement arising out of
the replacement of the Property Manager under the Property
Management Agreement (which shall terminate as of the Unwind
Closing Date) and CBL Member's replacement as Managing Member.
(j) The Parties agree, for themselves and for Xxxxxx Member and CBL
Member, that the transfer of CBL Member's and its Affiliates', if
any, Membership Interest contemplated by this Section 4.3 shall
be permitted notwithstanding any provision of the LLC Agreement
to the contrary, including, but not limited to, Article XVI of
the LLC Agreement, and further agree that, from and after the
giving of the Unwind Notice, neither CBL Member nor Xxxxxx Member
shall have the right to initiate the exercise of its rights, if
any, under Sections 16.04, 16.05(a), 16.05(b), or 20.03 of the
LLC Agreement, and no assignment that would be subject to any of
such rights can be initiated or completed, until the purchase of
CBL Member's and its Affiliates', if any, Membership Interest
contemplated by this Section 4.3 closes or is otherwise
terminated.
4.4 CBL Guarantee. CBL hereby irrevocably and unconditionally guarantees to
REJ Realty, JGM, Xxxxxx Member and JG Gulf Coast the full and prompt performance
of each obligation of CBL Member under Section 11.01(b)(ii) of the LLC
Agreement, that CBL Member fails to perform after demand therefor (the "CBL
Guaranteed Obligations"), and CBL shall indemnify and hold harmless REJ Realty,
JGM, Xxxxxx Member and JG Gulf Coast from and against any and all liability,
obligation, loss, costs, damage, or expense (including, without limitation,
reasonable and documented attorneys' fees and the costs of investigation)
howsoever arising from such failure of CBL Member. This Section 4.4 is a
guarantee of performance and not of payment alone, and neither REJ Realty, JGM,
Xxxxxx Member nor JG Gulf Coast shall be under any obligation to take any action
against CBL Member with respect to any of the CBL Guaranteed Obligations if such
CBL Guaranteed Obligations are due and have not been performed. The liability of
CBL under this Section 4.4 shall not be reduced or discharged by (a) any
forbearance or indulgence granted to CBL Member and/or CBL, whether as to
payment, time, performance, or otherwise, (b) the fact that CBL Member ceases to
be a Member of JG Gulf Coast or (c) the fact that CBL Member and/or CBL makes an
assignment for the benefit of its creditors, a receiver of CBL Member and/or CBL
is appointed or applied for, or a petition under Xxxxx 00, Xxxxxx Xxxxxx Code
(Bankruptcy), as from time to time amended, is filed by or against CBL Member
and/or CBL. Notwithstanding the foregoing provisions of this Section 4.4, CBL's
obligations under this Section 4.4 shall terminate, and this Section 4.4 shall
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thereafter be null and void and of no further force or effect (except with
respect to claims, if any, made under this Section 4.4 prior to such
termination, which shall survive until such claims are resolved), when neither
Xxxxxx Member nor any of its permitted assignees under clauses (i), (ii), (iii)
or (iv) of Section 16.03(a) of the LLC Agreement, nor any permitted assignees
under such clauses of any such permitted assignees, owns any Membership
Interest.
4.5 REJ Realty Guarantee. REJ Realty hereby irrevocably and unconditionally
guarantees to CBL and CBL Member the full and prompt performance of each
obligation of Xxxxxx Member under Section 4.3 of this Agreement, that Xxxxxx
Member fails to perform after demand therefor (the "REJ Realty Guaranteed
Obligations"), and REJ Realty shall indemnify and hold harmless CBL and CBL
Member from and against any and all liability, obligation, loss, costs, damage,
or expense (including, without limitation, reasonable and documented attorneys'
fees and the costs of investigation) howsoever arising from such failure of
Xxxxxx Member. This Section 4.5 is a guarantee of performance and not of payment
alone, and neither CBL nor CBL Member shall be under any obligation to take any
action against Xxxxxx Member with respect to any of the REJ Realty Guaranteed
Obligations if such REJ Realty Guaranteed Obligations are due and have not been
performed. The liability of REJ Realty under this Section 4.5 shall not be
reduced or discharged by (a) any forbearance or indulgence granted to Xxxxxx
Member and/or REJ Realty, whether as to payment, time, performance, or
otherwise, (b) the fact that Xxxxxx Member ceases to be a Member of JG Gulf
Coast or (c) the fact that Xxxxxx Member and/or REJ Realty makes an assignment
for the benefit of its creditors, a receiver of Xxxxxx Member and/or REJ Realty
is appointed or applied for, or a petition under Xxxxx 00, Xxxxxx Xxxxxx Code
(Bankruptcy), as from time to time amended, is filed by or against Xxxxxx Member
and/or REJ Realty.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 Conditions Precedent to Obligations of All Parties. The respective
obligations of each Party to consummate the transactions contemplated by this
Agreement are subject to the satisfaction or waiver on or before the Closing
Date of each of the following:
(a) No Injunctions. No court or Governmental Agency of competent
jurisdiction shall have enacted, issued, promulgated, enforced,
or entered any statute, rule, regulation, non-appealable
judgment, decree, injunction, or other order that is in effect on
the Closing Date and that enjoins, restrains, restricts, makes
unlawful, or prohibits this Agreement or the LLC Agreement or the
consummation of any of the transactions contemplated hereby or
thereby.
(b) No Pending or Threatened Actions. There shall not be pending or
threatened any material action or proceeding seeking to enjoin or
restrain consummation of the transactions contemplated by this
Agreement or seeking material damages in connection with such
transactions.
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5.2 Conditions Precedent to Obligations of CBL and CBL Member. The
obligations of CBL and CBL Member to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or waiver on or before the
Closing Date of each of the following:
(a) Accuracy of Representations and Warranties. The representations
and warranties of REJ Realty, JGM, Xxxxxx Member and JG Gulf
Coast contained herein that are qualified by materiality shall be
true and correct on and as of the Closing Date, and the
representations and warranties that are not so qualified shall be
true and complete in all material respects on and as of the
Closing Date, in each case as if made on and as of such date, and
REJ Realty, JGM, Xxxxxx Member and JG Gulf Coast shall have
executed and delivered to CBL and CBL Member a certificate, dated
as of the Closing Date, to such effect.
(b) Covenants. The covenants and agreements of REJ Realty, JGM,
Xxxxxx Member and JG Gulf Coast to be performed on or prior to
the Closing shall have been duly performed in all material
respects, and REJ Realty, JGM, Xxxxxx Member and JG Gulf Coast
shall have executed and delivered to CBL and CBL Member a
certificate, dated as of the Closing Date, to such effect.
5.3 Conditions Precedent to Obligations of REJ Realty, JGM, Xxxxxx Member
and JG Gulf Coast. The obligations of REJ Realty, JGM, Xxxxxx Member and JG Gulf
Coast to consummate the transactions contemplated by this Agreement are subject
to the satisfaction or waiver on or before the Closing Date of each of the
following:
(a) Accuracy of Representations and Warranties. The representations
and warranties of CBL and CBL Member contained herein that are
qualified by materiality shall be true and correct on and as of
the Closing Date, and the representations and warranties that are
not so qualified shall be true and complete in all material
respects on and as of the Closing Date, in each case as if made
on and as of such date, and CBL and CBL Member shall have
executed and delivered to REJ Realty, JGM, Xxxxxx Member and JG
Gulf Coast a certificate, dated as of the Closing Date, to such
effect.
(b) Covenants. The covenants and agreements of CBL and CBL Member to
be performed on or prior to the Closing shall have been duly
performed in all material respects, and CBL and CBL Member shall
have executed and delivered to REJ Realty, JGM, Xxxxxx Member and
JG Gulf Coast a certificate, dated as of the Closing Date, to
such effect.
5.4 Not Applicable to the Unwind Closing. The foregoing Sections 5.1, 5.2
and 5.3 are conditions precedent to the respective Parties' obligations to
proceed with the Closing only and, from and after the Closing, are not
conditions precedent to the respective Parties' obligations to proceed with the
Unwind Closing
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ARTICLE 6
TERMINATION AND WAIVER
6.1 General. At any time prior to the Closing, this Agreement may be
terminated and the transactions contemplated herein may be voided only as
follows:
(a) by written agreement of each of the Parties;
(b) by Xxxxxx Member, on one hand, and by CBL Member, on the other
hand, if a material breach of any provision of this Agreement (i)
has been committed by the other or by one of the other's
Affiliates that is a Party and such breach has not been cured and
cannot reasonably be expected to be cured within thirty (30) Days
after all other conditions to Closing set forth in Section 5.1
have been satisfied or (ii) has not otherwise been waived;
(c) by any Party, by giving written notice of such termination to the
other Party, if the Closing shall not have occurred on or prior
to April 29, 2005, unless the failure of such occurrence shall be
due to the delay or failure of the Party seeking to terminate
this Agreement under this clause (c), or its Affiliates, to
perform in all material respects each of its or their obligations
under this Agreement required to be performed by it at or prior
to the Closing; or
(d) by either Party, if there shall be in effect any law or
regulation that prohibits the consummation of the Closing or if
consummation of the Closing would violate any non-appealable
final order, decree, injunction, or judgment of any Governmental
Agency having competent jurisdiction.
6.2 Effect of Termination. In the event of the termination of this
Agreement in accordance with this Article 6, this Agreement shall thereafter
become null and void and of no further force or effect, and neither Party hereto
shall have any liability to the other Party hereto or its Affiliates, directors,
officers, or employees; except that this Section 6.2 and Sections 7.1, 7.2, 7.3,
7.4, 7.5, 7.6, 7.7, 7.9 and 7.10 shall survive such termination; and except that
nothing herein will relieve either Party from liability for any breach of this
Agreement prior to such termination. The rights of termination provided in
Section 6.1 may only be exercised prior to the Closing in accordance with their
respective terms and, from and after the Closing, shall not apply to the
exercise of the Unwind Right and the Unwind Closing.
ARTICLE 7
MISCELLANEOUS
7.1 Notices. Any notices or other communications required or permitted to
be given by this Agreement shall be given in writing and either (a) personally
hand-delivered, (b) mailed by prepaid certified or registered mail, with return
receipt requested, (c) sent by generally recognized overnight delivery service
to the party to whom such notice or communication is directed with delivery fee
prepaid, or (d) sent via telefax transmission. If personally delivered, notices
or other communications shall be effective when received as evidenced by
affidavit of the Person making such delivery; if sent by overnight courier
delivery service, notices or other communications shall be deemed to have been
received by the addressee on the next Day following the date so sent that is not
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a Saturday, Sunday or a day upon which national banks located in Chattanooga,
Tennessee or Cleveland, Ohio are permitted to be closed; if mailed, notices or
other communications shall be deemed to have been received by the addressee on
the date received, as evidenced by the return receipt; and if sent via telefax
transmission, notices or other communications shall be deemed to have been
received upon actual receipt by the Party to which such notices or other
communications are addressed. The inability to make delivery because of changed
address of which no notice was given or by reason of rejection or refusal to
accept delivery of any notice shall be deemed to be receipt of the notice as of
the date of such inability to deliver or rejection or refusal to accept. Any
such notices shall be sent to the address of such Party as follows, or to such
other address or facsimile number as such Party may designate by written notice
in accordance with the provisions of this Section 7.1:
If to REJ Realty, JGM or Xxxxxx Member, to:
JG Manager LLC
c/o The Xxxxxxx X. Xxxxxx Group, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: President
(000) 000-0000 (telefax)
REJ Realty LLC
c/o The Xxxxxxx X. Xxxxxx Group, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: President
(000) 000-0000 (telefax)
JG Gulf Coast Member LLC
c/o The Xxxxxxx X. Xxxxxx Group, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: President
(000) 000-0000 (telefax)
with a copy (as to each of JGM, REJ Realty and Xxxxxx Member) to:
General Counsel
The Xxxxxxx X. Xxxxxx Group, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000-0000
(000) 000-0000(telefax)
If to CBL or CBL Member, to:
CBL & Associates Limited Partnership
12
2030 Xxxxxxxx Place Boulevard
Suite 500, CBL Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
(000) 000-0000 (telefax)
CBL/GULF COAST, LLC
c/o CBL & Associates Limited Partnership
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000, XXX Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
(000) 000-0000 (telefax)
with a copy (as to each of CBL and CBL Member) to:
CBL & Associates Limited Partnership
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000, XXX Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
(000) 000-0000 (telefax)
and with a copy (as to each of CBL and CBL Member) to:
Xxxxxxx X. Xxxxx, Esq.
Shumacker Xxxx Xxxxxxx & Xxxxxxxx, P.C.
2030 Xxxxxxxx Place Blvd.
Suite 210, CBL Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
(000) 000-0000 (telefax)
If to JG Gulf Coast, to each of CBL Member and Xxxxxx Member as set
forth above, with a copy to:
CBL & Associates Limited Partnership
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000, XXX Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
(000) 000-0000 (telefax)
with a copy to:
General Counsel
The Xxxxxxx X. Xxxxxx Group, Inc.
00000 Xxxxxx Xxxxx Xxxx
00
Xxxxxxxxx, Xxxx 00000-0000
(000) 000-0000(telefax)
and with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Shumacker Xxxx Xxxxxxx & Xxxxxxxx, P.C.
2030 Xxxxxxxx Place Blvd.
Suite 210, CBL Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
(000) 000-0000 (telefax)
7.2 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Ohio, including all
matters of construction, validity, and performance but excluding all other
choice of law and conflicts of law rules.
7.3 Entire Agreement; Amendment. Except as provided in Section 7.8 below,
this Agreement, together with all Exhibits hereto, is the Parties' entire
agreement with respect to the subject matter hereof and supersedes all prior or
contemporaneous oral or written communications, proposals, and representations
with respect to the subject matter hereof. No modification to this Agreement
will be binding unless in writing and signed by a duly authorized representative
of each Party.
7.4 Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.5 Severability. If at any time subsequent to the date hereof, any
provision of this Agreement shall be held by any court of competent jurisdiction
to be illegal, void, or unenforceable, that provision shall be of no force and
effect, but the illegality or non-enforceability of such provision shall have no
effect upon and shall not impair the enforceability of any other provision of
this Agreement.
7.6 Successors; No Third Party Beneficiaries. This Agreement shall be
binding upon and shall inure to the benefit of the Parties and their respective
successors and permitted assigns, and shall not confer any rights or remedies
upon any other third party other than such successors and permitted assigns.
This Agreement and the respective Parties' rights and obligations hereunder may
not be assigned or transferred by any Party, directly or indirectly, or by
operation of law, without the prior written consent of the other Parties hereto.
7.7 Expenses. Each Party shall pay its own expenses in connection with the
negotiation and execution of this Agreement.
7.8 Confidentiality; Public Announcements. From the date hereof until the
first to occur of the Closing and the termination of this Agreement in
accordance with Article 6, the Parties will be bound by the provisions of Part
VI of the Letter Agreement to the same extent as if it were rewritten in its
entirety herein.
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7.9 Survival. The representations and warranties contained in Article 2
shall survive the Closing until the expiration or earlier termination of the LLC
Agreement. The representations and warranties contained in Article 3 shall
survive for a period of one (1) year after the Closing. Subject to Section 6.2,
the provisions of Section 4.2 and Article 7 shall survive the Closing until the
termination of the LLC Agreement, the provisions of Section 4.3 shall survive in
accordance with the terms of such Section, and the provisions of Sections 4.4
and 4.5 shall survive without limitation as to time.
7.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
[Signatures on following page]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
day and year first above written.
REJ REALTY LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx, Executive Vice President
JG MANAGER LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx, Executive Vice President
JG GULF COAST TOWN CENTER LLC
By JG Manager LLC, as Manager
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx, Executive Vice President
JG GULF COAST MEMBER LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx, Executive Vice President
CBL & ASSOCIATES LIMITED PARTNERSHIP
By: CBL Holdings I, Inc., its sole general partner
By: /s/ Xxxx X. Xxx
-------------------------------------------------
Xxxx X. Xxx
Vice Chairman and Chief Financial Officer
CBL/GULF COAST, LLC
By: CBL & Associates Limited Partnership,
its sole member and chief manager
By: CBL Holdings I, Inc., its sole general partner
By: /s/ Xxxx X. Xxx
-------------------------------------------------
Xxxx X. Xxx
Vice Chairman and Chief Financial Officer
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APPENDIX A
DEFINITIONS
"Affiliate" means, with respect to any Person, (i) any Person, which directly or
indirectly, through one or more intermediaries, Controls, is controlled by, or
is under common Control with, such Person and/or (ii) any Person, ten percent
(10%) or more of the equity or beneficial interests of which are owned by such
Person or owned by an Affiliate of such Person that is an Affiliate pursuant to
clause (i) of this paragraph. Notwithstanding the definition of Affiliate set
forth above, (A) EMJ Corporation, a Tennessee corporation, shall not be deemed
an Affiliate of CBL for purposes of this Agreement, (B) JGM, REJ Realty and
their Affiliates shall not be deemed Affiliates of CBL for purposes of this
Agreement and (C) CBL and its Affiliates shall not be deemed Affiliates of JGM
or REJ Realty for purposes of this Agreement.
"Agreement" has the meaning set forth in the Preamble to this Agreement.
"CBL" has the meaning set forth in the Preamble to this Agreement.
"CBL Guaranteed Obligations" has the meaning set forth in Section 4.4 of this
Agreement
"CBL Member" has the meaning set forth in the Preamble to this Agreement.
"CBL Member Initial Capital Contribution" means the sum of Forty Million Three
Hundred Thirty-Four Thousand Nine Hundred Seventy-Eight Dollars
($40,334,978.00).
"Closing" has the meaning set forth in Section 1.4 of this Agreement.
"Closing Date" has the meaning set forth in Section 1.4 of this Agreement.
"Control" or "Controlled by" means the power, directly or indirectly, to direct
the actions, operation or management of another Person or business entity by
contract, the ownership of voting rights or otherwise.
"Entity" means any general partnership, limited partnership, limited liability
company, corporation, joint venture, trust, business trust, cooperative or
association or any foreign trust or foreign business organization.
"Governmental Agency" has the meaning set forth in Section 2.3 of this
Agreement.
"Xxxxxx Member" has the meaning set forth in the Preamble to this Agreement.
"JG Gulf Coast" has the meaning set forth in the Preamble to this Agreement.
"JGM" has the meaning set forth in the Preamble to this Agreement.
"Letter Agreement" means that certain letter agreement, dated as of February 22,
2005, by and between The Xxxxxxx X. Xxxxxx Group, Inc. and CBL & Associates
Properties, Inc.
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17
"LLC Agreement" means that certain Amended and Restated Limited Liability
Agreement of JG Gulf Coast, to be entered into as of the Closing Date, by and
among REJ Realty, JGM and CBL Member, and the other exhibits and schedules
attached to and incorporated therein, in the form of Exhibit A attached hereto
and made a part hereof.
"Original Proposed Tenant" has the meaning set forth in the definition of
"Required Post-Closing Approvals."
"Parties" means REJ Realty, JGM, Xxxxxx Member, JG Gulf Coast, CBL, and CBL
Member, and "Party" means any one of them.
"Person" means any individual or Entity, and the heirs, executors,
administrators, legal representatives, successors, and assigns of such "Person",
where the context so permits.
"Proposed Replacement Tenant" has the meaning set forth in the definition of
"Required Post-Closing Approvals."
"Property Management Agreement" means that certain Property Management
Agreement, to be entered into as of the Closing Date, by and among CBL Manager
and JG Gulf Coast, in the form of Exhibit G to the form of the LLC Agreement.
"REJ Realty" has the meaning set forth in the Preamble to this Agreement.
"REJ Realty Guaranteed Obligations" has the meaning set forth in Section 4.5 of
this Agreement.
"Required Post-Closing Approvals" means each of the following: (a) approval by
Target, Bass Pro, Belk and JCPenney of the Phase One Site Plan and the Phase Two
Site Plan and amendments to existing agreements and documents and draft
documents relating to such Persons; (b) approval by the appropriate Governmental
Agencies of Xxx County, Florida of the Phase One Site Plan and the Phase Two
Site Plan and necessary phasing and permitting and related amendments to
existing documents and agreements with such Governmental Agencies; (c) all
required approvals from Target and the appropriate Governmental Agencies of Xxx
County, Florida respecting the Phase One Site Plan and the Phase Two Site Plan
and related phasing and permitting necessary to obtain certificates of occupancy
for tenants in Phase One (from and including Target to and including Regal
Cinema), as depicted on the Phase One Site Plan; (d) all necessary permits from
the U.S. Army Corps of Engineers and the South Florida Water Management
District, and all related easements and access rights, necessary to provide an
entry drive to the Project from Alico Road. Except as provided in the last
sentence in this definition, if any proposed Anchor or other tenant named or
referred to in this definition (each, an "Original Proposed Tenant") is replaced
with another proposed Anchor or tenant (each, a "Proposed Replacement Tenant")
prior to the obtaining of all the Required Post-Closing Approvals that relate to
such Original Proposed Tenant, references in such definition to the Original
Proposed Tenant shall be deemed to refer to the Proposed Replacement Tenant, if
the Proposed Replacement Tenant has similar approval rights with respect to the
corresponding Required Post-Closing Approvals. Notwithstanding the immediately
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18
preceding sentence in this definition, if any Original Proposed Tenant releases,
waives or forfeits its rights to give the Required Post-Closing Approvals that
relate to it, whether pursuant to or in violation of any agreements between such
Original Proposed Tenant and JG Gulf Coast or any of its Affiliates, prior to
the obtaining of all the Required Post-Closing Approvals that relate to such
Original Proposed Tenant, and the Original Proposed Tenant is not replaced by a
Proposed Replacement Tenant prior to the date that is six (6) months prior to
the Second Anniversary, there shall be no Required Post-Closing Approvals with
respect to either the Original Proposed Tenant or the Proposed Replacement
Tenant, if any.
"Second Anniversary" has the meaning set forth in Section 4.3 of this Agreement.
"Unwind Closing" has the meaning set forth in Section 4.3 of this Agreement.
"Unwind Closing Date" has the meaning set forth in Section 4.3 of this
Agreement.
"Unwind Notice" has the meaning set forth in Section 4.3 of this Agreement.
"Unwind Purchase Price" has the meaning set forth in Section 4.3 of this
Agreement.
"Unwind Option Period" has the meaning set forth in Section 4.3 of this
Agreement.
"Unwind Right" has the meaning set forth in Section 4.3 of this Agreement.
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EXHIBIT A
The LLC Agreement
20
EXHIBIT B
Environmental Reports
21
