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, Johnson 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
1 OF OAK PARK 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 2 OF OAK PARK
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 3 OF OAK PARK
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 4 OF OAK
PARK 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 5 OF OAK PARK 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 7 OF OAK
PARK 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 7 OF OAK PARK 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
