Exhibit 10.23.2
FIRST AMENDMENT TO
CONTRIBUTION AGREEMENT AND JOINT ESCROW INSTRUCTIONS
This First Amendment to Contribution Agreement and Joint Escrow
Instructions (the "First Amendment") is made and entered into as of the 8th day
of November, 2005, by and among CBL & ASSOCIATES LIMITED PARTNERSHIP, a Delaware
limited partnership ("CBL/OP"); OAK PARK INVESTMENT, L.P., a Delaware limited
partnership ("Property Owner") and the general and limited partners of Property
Owner listed on Schedule 1 attached hereto.
RECITALS
A. CBL/OP, the Property Owner and the Contributors entered into that certain
Contribution Agreement and Joint Escrow Instructions dated as of October 19,
2005 (the "Contribution Agreement"), pursuant to which the Property Owner and
Contributors agreed to contribute to CBL/OP (by transfer of LLC Interests in the
Company (as such terms are defined in the Contribution Agreement)) that certain
retail shopping center known as the Oak Park Mall, and related land,
improvements and property located in Overland Park, Xxxxxxx County, Kansas,
which is more particularly described in the Contribution Agreement.
B. CBL/OP, the Property Owner and the Contributors desire to amend the
Contribution Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the promises, terms and
conditions contained herein and such other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, CBL/OP, the Property
Owner and the Contributor Representative hereby agree as follows:
A. Defined Terms and Recitals. Except as otherwise defined herein, all
capitalized terms used herein but not otherwise defined herein shall have the
meanings set forth in the Contribution Agreement. CBL/OP, the Property Owner and
the Contributor Representative hereby agree that the recitals set forth
hereinabove are true and correct and incorporated into this First Amendment.
B. Modifications to Contribution Agreement. The parties agree that from and
after the date of this First Amendment, the Contribution Agreement shall be
modified as follows:
1. All references to the term "LLC Interests" in the Contribution Agreement
shall hereinafter mean collectively, (i) 99.5% of the membership interests in
Oak Park Holding I, LLC, a Kansas limited liability company ("Oak Park Holding
I"), and (ii) all of the membership interests in Oak Park Member, LLC, a Kansas
limited liability company ("Oak Park Member"), other than those membership
interests in Oak Park Member held by Oak Park Holding I.
2. With respect to the representations and warranties set forth Section 7.1.3 of
the Contribution Agreement, the percentages reflected in Schedule 1 to the
Contribution Agreement are hereby modified to reflect to the percentages for
each Contributor reflected in Schedule 1 to this First Amendment (in Schedule 1
"OP" refers to "Oak Park").
3. Section 2.1 of the Contribution Agreement is hereby deleted in its entirety
and substituted with the following:
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"2.1 Agreement to Contribute the LLC Interests. In furtherance of the
contribution of the LLC Interests to CBL/OP, the parties hereby agree to take
the following steps in the order as they appear within the set forth time
periods:
(a) At least two (2) and not more than four (4) Business Days prior to the
expected funding of the Closing Date Debt, the Contributors shall:
(i) cause Property Owner to form, or cause the formation of, the Company, which
shall be named "Oak Park Mall, LLC, a Delaware limited liability company" and
whose 100% membership interests shall be owned by the Property Owner;
(ii) cause Property Owner to contribute the Property to the Company free and
clear of any liens or encumbrances except for indebtedness that will be
refinanced with the Closing Date Debt (STEP 0 XX XXX XXXX TRANSACTION STRUCTURE
attached hereto as Exhibit BB ("Oak Park Transaction Structure"));
(iii) cause Property Owner to form, or cause the formation of, a new Kansas
limited liability company, which shall be named "Oak Park Member, LLC" and whose
100% membership interests shall be owned by the Property Owner ("Oak Park
Member");
(iv) cause Property Owner to transfer and contribute 100% of the membership
interests in the Company to Oak Park Member free and clear of any liens or
encumbrances (STEP 0 XX XXX XXXX TRANSACTION STRUCTURE);
(v) cause the Property Owner to be liquidated (but not dissolved) and to
distribute 100% of the membership interests in Oak Park Member to the
Contributors free and clear of any liens or encumbrances (STEP 0 XX XXX XXXX
TRANSACTION STRUCTURE);
(vi) cause the Electing Contributors to form, or cause the formation of, a new
Kansas limited liability company, which shall be named "Oak Park Holding I, LLC"
and whose 100% membership interests shall be owned by the Electing Contributors
("Oak Park Holding I"); and
(vii) cause the Electing Contributors to transfer and contribute all of their
membership interests in Oak Park Member to Oak Park Holding I free and clean of
any liens or encumbrances (STEP 0 XX XXX XXXX TRANSACTION STRUCTURE);
THE RESULTING OWNERSHIP STRUCTURE OF THE COMPANY SHALL BE AS DEPICTED ON PAGE 2
OF THE OAK PARK TRANSACTION STRUCTURE CAPTIONED "STRUCTURE IMMEDIATELY PRIOR TO
LOAN".
(b) On the date that the Closing Date Debt is to be funded to the Company which
shall be at least one (1) Business Day prior to the Closing Date, the
Contributors shall:
(viii) cause the Company to refinance its existing mortgage indebtedness with
the Closing Date Debt and (w) cause the Company to distribute the net
refinancing proceeds from the Closing Date Debt to Oak Park Member, (x) cause
the Oak Park Member to distribute the net financing proceeds from the Closing
Date Debt prorata to the Contributors (other than the Electing Contributors) and
Oak Park Holding I, and (y) cause Oak Park Holding I to distribute the net
refinancing proceeds from the Closing Date Debt to the Electing Contributors
(STEP 0 XX XXX XXXX TRANSACTION STRUCTURE).
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(c) On the Closing Date, upon and subject to the terms and conditions of this
Agreement:
(ix) The Electing Contributors agree to cause Oak Park Holding I to issue to CBL
& Associates Management, Inc., a Delaware corporation ("CBL Management") and CBL
Management will acquire a one-half percent (0.5%) membership interest in Oak
Park Holding I in exchange for cash in an amount such that following the
contribution CBL Management will hold an interest with a value equal to 0.5% of
the total value of Oak Park Holding I, based on the K-SCU Amount to be received
by the Electing Contributors (STEP 6 OF OAK PARK TRANSACTION STRUCTURE);
(x) The Electing Contributors agree to transfer and contribute all of their
membership interests (99.5%) in Oak Park Holding I to CBL/OP, free and clean of
any liens or encumbrances, and CBL/OP agrees to acquire such membership
interests (99.5%) in Oak Park Holding I in exchange for K-SCUs (STEP 0 XX XXX
XXXX TRANSACTION STRUCTURE);
(xi) CBL/OP shall cause the formation of, a new Kansas limited liability
company, which shall be named "Oak Park Holding II, LLC" and whose 99.5%
membership interests shall be owned by CBL/OP and whose 0.5% membership
interests shall be owned by CBL Management ("Oak Park Holding II");
(xii) The Contributors (other than the Electing Contributors) agree to transfer
and contribute all of their membership interests in Oak Park Member to Oak Park
Holding II, free and clean of any liens or encumbrances, and CBL/OP agrees to
cause Oak Park Holding II to acquire such membership interests in Oak Park
Member in exchange for the Cash Consideration (STEP 0 XX XXX XXXX TRANSACTION
STRUCTURE).
THE RESULTING OWNERSHIP STRUCTURE OF THE COMPANY SHALL BE AS DEPICTED ON PAGE 4
OF THE OAK PARK TRANSACTION STRUCTURE CAPTIONED "POST CLOSING RESULTING
STRUCTURE.
Notwithstanding anything to the contrary contained in this Agreement, the
covenants, representations and warranties set forth in this Section 2.1 shall
survive the Closing until the Extended Expiration Date and the breaches of such
covenants, representations and warranties shall not be subject to the
limitations on liability set forth in Sections 10.5 and 10.6 of the Agreement."
4. Section 7.1.22 of the Contribution Agreement is hereby deleted in its
entirety and substituted with the following:
"7.1.22 The Company and Affiliated Entities.
(i) The Company is a limited liability company duly organized and validly
existing under the laws of the State of Delaware and is duly qualified or
registered to transact business in the State of Kansas, and has the power and
authority to carry on its business as now being conducted. Oak Park Member and
Oak Park Holding I are each a limited liability company duly organized and
validly existing under the laws of the State of Kansas, and each has the power
and authority to carry on its business as now being conducted;
(ii) The Company has never conducted and does not currently conduct any business
other than ownership and operation of the Property, and has never owned, and do
not currently own, any assets other than the Property and cash and investment
securities; Oak Park Member has never conducted and does not currently conduct
any business other than ownership of the membership interests
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in the Company,
and has never owned, and do not currently own, any assets other than the
membership interests in the Company. Oak Park Holding I has never conducted and
does not currently conduct any business other than ownership of certain
percentage of the membership interests in Oak Park Member, and has never owned,
and do not currently own, any assets other than a certain percentage of the
membership interests in Oak Park Member;
(iii) As of the Closing Date, the Company will not have historical liabilities
other than the Closing Date Debt, obligations for Operating Expenses and Real
Estate Taxes which are being prorated pursuant to Article VI above; and as of
the Closing Date, the Company will not be a party to any agreements other than
the Permitted Exceptions, Tenant Leases, the Operating Agreement, the Service
Contracts and the documents related to the Closing Date Debt. As of the Closing
Date, Oak Park Member will not have historical liabilities; and as of the
Closing Date, Oak Park Member will not be a party to any agreements other than
the operating agreement for the Company. As of the Closing Date, Oak Park
Holding I will not have historical liabilities; and as of the Closing Date, Oak
Park Holding I will not be a party to any agreements other than the operating
agreement for Oak Park Member;
(iv) Property Owner has delivered to CBL/OP true, correct and complete copies of
each of the New LLCs' certificate of formation and limited liability company
agreements, including all amendments to each of them;
(v) Oak Park Member is not in breach of, or default under, the limited liability
company agreement of the Company and no event has occurred that, with the giving
of notice or the passage of time, or both, would constitute a default thereunder
on the part of Oak Park Member. Oak Park Holding I and the Contributors (other
than the Electing Contributors) are not in breach of, or default under, the
limited liability company agreement of Oak Park Member and no event has occurred
that, with the giving of notice or the passage of time, or both, would
constitute a default thereunder on the part of Oak Park Holding I or any of the
Contributors (which are not the Electing Contributors). None of the Electing
Contributors are in breach of, or default under, the limited liability company
agreement of Oak Park Holding I, and no event has occurred that, with the giving
of notice or the passage of time, or both, would constitute a default thereunder
on the part of any of the Electing Contributor; and
(vi) Neither Property Owner, any Contributor nor any affiliate of any of them
has made a loan to any of the Company, Oak Park Member or Oak Park Holding I
(the "New LLCs"), and (x) no Electing Contributors have any outstanding capital
commitments to Oak Park Holding I, (x) neither Oak Park Holding I nor the
Contributors (which are not the Electing Contributors) have any outstanding
capital commitments to Oak Park Member, and (z) Oak Park Member has no
outstanding capital commitments to the Company.
(vii) The membership interests held by Oak Park Member in the Company represent
all of the issued and outstanding equity interests in the Company; and the
Company has no obligation to issue, and no party has any right to acquire,
another equity interests in the Company. The membership interests held by Oak
Park Holding I and the Contributors (other than the Electing Contributors) in
Oak Park Member represent all of the issued and outstanding equity interests in
Oak Park Member; and Oak Park Member has no obligation to issue, and no party
has any right to acquire, another equity interests in Oak Park Member. The
membership interests held by the Electing Contributors in Oak Park Holding I
represent all of the issued and outstanding equity interests in Oak Park Holding
I; and Oak Park Holding I has no obligation to issue, and no party has any right
to acquire, any other equity interests in Oak Park Holding I."
5. A new "Exhibit BB" (Oak Park Transaction Structure) is hereby attached to the
Contribution Agreement following "Exhibit AA" in the form of Exhibit A attached
to this First Amendment.
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6. Property Owner and the Contributors hereby notify CBL/OP that a lawsuit has
been filed on August 26, 2005 in the Circuit Court of Xxxxxxx County, Missouri
with Case No. 0516-CV28076, by plaintiffs Xxxx X. Xxxxxxx and Special Events
International, Inc. and naming the Property Owner, its general partners and
other parties, as defendants ("Lawsuit"). The Contributors hereby agree, jointly
and severally, to (i) diligently and in good faith prosecute to completion the
Lawsuit, at Contributor's sole cost and expense, (ii) provide CBL/OP with copies
of all court filings and correspondence in connection with the Lawsuit, (iii)
obtain CBL/OP's approval prior to approving any settlement of the Lawsuit which
would have an adverse effect on CBL/OP's or the Company's use or operation of
the Property, and (iv) indemnify, hold harmless and defend CBL/OP and the
Company and any officer, director, partner, employee and/or agent of CBL/OP or
the Company from and against any and all Losses arising out of or resulting from
the Lawsuit. Property Owner, the Contributors and CBL/OP hereby agree that,
notwithstanding anything to the contrary contained in the Contribution
Agreement, the Contributors' breaches of their obligations under clauses (i)
through (iv) above (x) shall not be subject to the limitations on liability set
forth in Sections 10.5 and 10.6 of the Contribution Agreement, and (y) shall be
subject to reimbursement by CBL/OP and the Company from the Indemnity Escrow
Fund.
C. No Further Modification. Except as set forth herein, the Contribution
Agreement remains unmodified and in full force and effect. In the event of any
inconsistency between the provisions of the Contribution Agreement and this
First Amendment, the terms of this First Amendment shall control.
D. Governing Law. This First Amendment shall be governed by, construed and
enforced in accordance with, the laws of the State of Kansas.
E. Counterparts. This First Amendment may be executed in two or more
counterparts, which when taken together shall constitute one and the same
instrument. The parties contemplate that they may be executing counterparts of
the First Amendment transmitted by facsimile and agree and intend that a
signature by facsimile machine shall bind the party so signing with the same
effect as though the signature were an original signature.
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed as of the day and year first written above.
PROPERTY OWNER: OAK PARK INVESTMENT, L.P.,
a Delaware limited partnership
By: JJJ Associates, Inc., general partner
By: /s/ Xxxx X. Fingersh________________
------------------------------------------------
Name: Xxxx X. Fingersh____________
----------------------------------------------
Title: President_____________
---------------------------------------------
CONTRIBUTORS: /s/ Xxxx Fingersh______________
--------------------------------------------------------------
XXXX XXXXXXXX, in his capacity as the true and lawful agent,
attorney-in-fact and representative of, the Contributors
listed on Schedule 1 attached hereto
----------
CBL/OP: CBL & ASSOCIATES LIMITED PARTNERSHIP
a Delaware limited partnership
By: CBL Holdings I, Inc., its general partner
By: /s/ Xxxxxxx X. Lebovitz_____________
------------------------------------------------
Name: Xxxxxxx X. Lebovitz________________
----------------------------------------------
Title: President________________
---------------------------------------------
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Schedule 1 to First Amendment to Contribution Agreement
List of Contributors
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Exhibit A to First Amendment to Contribution Agreement
Exhibit BB
OAK PARK TRANSACTION STRUCTURE
Pre-Closing Restructuring
Day 1
Step 1
Oak Park Investments, L.P.
a Delaware limited partnership
| / \ Oak Park Mall
Property | | LLC
| | Interests
\ / |
Oak Park Mall, LLC
a Delaware limited liability company
Step 2
Oak Park Investments, L.P.
a Delaware limited partnership
Oak Park Mall | / \ Oak Park Member
LLC | | LLC
Interests | | Interests
\ / |
Oak Park Member, LLC
an Kansas limited liability company
Step 0
Xxx Xxxx Member LLC Interests
Oak Park Investment, --------------------------> Partners ("Contributors")
L.P. Distribution
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Step 4
Contributors receiving K-SCUs(1)
Oak Park Member | / \ Oak Park Holding I
LLC | | LLC
Interests | | Interests
\ / |
Oak Park Holding I, LLC
an Kansas limited liability company
Structure Immediately prior to Loan
______________________________________
| Oak Park Mall, LLC |
| a Delaware limited liability company |
|______________________________________|
|
|
|
_______________________________________
| Oak Park Member, LLC |
| an Kansas limited liability company |
|_______________________________________|
_ _
_ _
_ _
_ _
_______________________________________ _____________________________
| Oak Park Holding I, LLC | | Contributors receiving Cash |
| an Kansas limited liability company | |_____________________________|
|_______________________________________|
|
|
|
__________________________
| Contributors receiving |
| K-SCUs |
|__________________________|
Step 5 Loan is made to Oak Park Mall, LLC and excess Loan proceeds are
distributed upstream to Contributors.
___________________________________________________________
(1) MD Associates, Inc., Xxxxx Dreiseszum, Trustee, Oak Fing, L.L.C., Saleto,
LLC and B.F. Partners, L.P.
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Day 2
Step 6 (on the Contribution Closing Date)
Cash at FMV
CBL & Associates Management, Inc. -----------> A Electing Contributor and
member of Oak Park Holding I
<----------
0.5% LLC Interest in
Oak Park Holding I
Resulting Pre Closing Structure
______________________________________
| Oak Park Mall, LLC |
| a Delaware limited liability company |
|______________________________________|
|
|
|
_______________________________________
| Oak Park Member, LLC |
| an Kansas limited liability company |
|_______________________________________|
_ _
_ _
_ _
_ _
_______________________________________ _____________________________
| Oak Park Holding I, LLC | | Contributors receiving Cash |
| an Kansas limited liability company | |_____________________________|
|_______________________________________|
- -
- -
- -
- -
_________________-__________ __-_________________________
| CBL & Associates | | Contributors receiving |
| Management, Inc. | | K-SCUs |
| a Delaware corporation | | |
| 0.5% | | 99.5% |
|____________________________| |____________________________|
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At Closing
Step 7
Oak Park Holding I LLC interests
Electing Contributors receiving --------------> CBL & Associates
K-SCUs (excluding the Electing Limited Partnership
Contributor receiving cash for <------------- a Delaware limited partnership
its 0.5% LLC Interests K-SCUs
in Oak Park Holding I
Oak Park Member LLC interests (other
than the LLC Interests held by Oak Park Holding I)
Contributors receiving Cash -------------------> Oak Park
Holding II, LLC
<------------------ ("Eastland Holding II")
Cash an Kansas limited
liability company
Post Closing Resulting Structure
________________________________________
| Oak Park Mall, LLC |
| a Delaware limited liability company |
|________________________________________|
|
|
|
________________________________________
| Oak Park Member, LLC |
| an Kansas limited liability company |
|________________________________________|
_ _
_ _
_ _
_ _
___________________________________ __________________________________
| Oak Park Holding I, LLC | | Oak Park Holding II, LLC |
| an Kansas limited liability | | an Kansas limited liability |
|___________________________________| |__________________________________|
- - - -
- - - -
- - - -
- - - -
________-__________________-________________________-_________________-______
| CBL & Associates | CBL & Associates | CBL & Associates | CBL & Associates |
| Management, Inc. | Limited | Managment, Inc. | Limited |
| a Delware | Partnership | a Delaware | Partnership |
| corporation | a Delaware | corporation | a Delaware |
| 0.5% | limited | 0.5% | limited |
| | partnership | | partnership |
| | 99.5% | | 99.5% |
|___________________|___________________|__________________|__________________|
