Exhibit 2.2
Joint Purchase Agreement (this "Agreement"), dated as of January
12, 2002, among Westfield America Limited Partnership, a Delaware limited
partnership ("Wallaby"), Simon Property Group, L.P., a Delaware limited
partnership ("Hoosier"), and The Xxxxx Company, a Maryland corporation
("Terrapin").
W I T N E S S E T H:
WHEREAS, simultaneously with the signing of this Agreement,
Wallaby, Westfield Growth, LP, Hoosier, Hoosier Acquisition, LLC, Terrapin
and Terrapin Acquisition LLC are entering into the Purchase Agreement (as
the same may be amended from time to time in accordance with the terms
hereof and thereof, the "Purchase Agreement") and the Protocol (as defined
in the Purchase Agreement) pursuant to which they agreed to purchase
substantially all the assets of Rodamco North America, N.V., an investment
company with variable capital, incorporated under the laws of The
Netherlands ("Target"); and
WHEREAS, Wallaby, Hoosier and Terrapin desire to set forth
certain agreements relating to their rights and obligations under the
Purchase Agreement.
NOW, THEREFORE, in order to induce each other to enter into the
Purchase Agreement and in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, Wallaby, Hoosier and
Terrapin hereby agree as follows:
ARTICLE I
DEFINED TERMS
1.01 Defined Terms. Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Purchase
Agreement. In addition, the following terms shall have the meanings
ascribed thereto in this Section 1.01:
(a) "Assets to be Sold" means the properties or assets reflected
on the Master Schedule under the heading "Assets to be Sold."
(b) "Default Percentage" means the Gross Asset Value of the
Purchaser/Target JV Assets that a Non-Purchasing Party is required to
purchase pursuant to Section 3.02(c), divided by the Gross Asset Value of
all of the Assets of Target and the Target Subsidiaries to be purchased
under the Purchase Agreement (including any Assets to be Sold that have not
been sold by Target (or the applicable Target Subsidiary) prior to the
Closing, Three Party Assets and properties and assets that are allocated to
the Purchasing Party(ies)). As of the date of this Agreement, the Gross
Asset Value of all of the Assets of Target and the Target Subsidiaries to
be purchased is $5,453,789,000.
(c) "GP" means Head Acquisition, L.P., a Delaware limited
partnership.
(d) "Gross Asset Value" means, with respect to each property or
asset, the amount listed under the heading "RNA Share of Gross Asset Value"
on the Master Schedule. For purposes of Section 2.02(d) only, "Gross Asset
Value" shall be the amount set forth on the Master Schedule attached hereto
as Exhibit A and shall not be recalculated prior to the Closing. For all
purposes of this Agreement, "Gross Asset Value" does not include the amount
of any indebtedness with respect to any Asset to be Sold other than River
Ridge, South Square and 000 Xxxxx Xxxxxx.
(e) "Hoosier Assets" means the properties or assets reflected on
the Master Schedule under the heading of "Simon Assets".
(f) "Jointly Owned Allocated Assets" means any Wallaby Asset,
Hoosier Asset or Terrapin Asset that is jointly owned by the parties in
accordance with the principles set forth in this Agreement or as otherwise
agreed to by all of the Purchasers.
(g) "Master Schedule" means the "Master Schedule" attached hereto
as Exhibit A, as the same may be revised (i) from time to time, (A) to take
into account properties or assets becoming Three Party Assets pursuant to
Section 2.02(d) hereof, (B) any change in the allocation of a property or
asset in accordance with Section 3.02(c) or Section 3.02(e), or (C) as
agreed to by all of the Purchasers, and (ii) immediately prior to Closing,
in accordance with the methodologies employed in preparing the Master
Schedule attached to this Agreement to reflect changes in equity, debt, the
amount of unallocated indebtedness of Target and Target Subsidiaries that
is to be repaid at the Closing (as determined in accordance with Section
2.02(c) and as set forth on the Master Schedule under "Share of Corporate
Debt" (under the heading "Allocation of Value")), RNA ownership and
interest rates used to determine entries in the Master Schedule, except
that no changes shall be made to "cap rates" and NOI in the calculations of
the updated Master Schedule. (All revisions to the Master Schedule pursuant
to clause (ii) of this definition shall require the approval of all of the
Purchasers, which approval will not be unreasonably withheld, conditioned
or delayed so long as the proposed revisions are consistent with the
provisions of clause (ii). Notwithstanding the foregoing, if the pending
ground rent dispute with respect to San Francisco Centre is resolved prior
to the Closing, the NOI reflected in the Master Schedule with respect to
San Francisco Centre will be revised to reflect such resolution.)
Each party hereby acknowledges and agrees that the entries in the
Master Schedule are relevant solely for purposes of determining their
respective aggregate obligations under the Purchase Agreement and under
this Agreement. However, each party may have valued each of the assets or
properties allocated to it at an amount different from that set forth in
the Master Schedule and the Master Schedule shall not be an admission as to
the valuation of any property or asset.
(h) "Minimum Price" shall have the meaning set forth in a
schedule to be agreed to by all of Wallaby, Hoosier and Terrapin.
(i) "Percentage Interest" means 43.359% (in the case of Wallaby),
29.315% (in the case of Hoosier) and 27.326% (in the case of Terrapin), in
each case, as shown on the Master Schedule attached hereto as Exhibit A as
of the date of this Agreement. The Purchaser's respective Percentage
Interests will be revised from time to time based on changes to the Master
Schedule made in accordance with the terms hereof.
(j) "Purchaser/Target JV Asset" means (i) Garden State Plaza,
with respect to Wallaby, (ii) Coral Square, Miami International, West Town
Mall and Florida Mall, with respect to Hoosier, and (iii) Collin Creek,
Perimeter Mall and Willowbrook, with respect to Terrapin.
(k) "Terrapin Assets" means the properties or assets reflected on
the Master Schedule under the heading of "Xxxxx Assets".
(l) "Three Party Assets" means the properties or assets reflected
on the Master Schedule under the heading "Three Party Assets", together
with any other Assets (other than the Wallaby Assets, the Hoosier Assets,
the Terrapin Assets and the Assets to be Sold) to which Purchasers are
entitled (and purchase) under the Purchase Agreement.
(m) "Urban OP" means Urban Shopping Centers, L.P., an Illinois
limited partnership.
(n) "Urban Retail" means Urban Retail Properties Co.
(o) "Wallaby Assets" means the properties or assets reflected on
the Master Schedule under the heading of "Westfield Assets".
ARTICLE II
THE ASSETS
2.01 Allocation of Assets; Purchase Price.
(a) Subject to the terms and conditions of the Purchase
Agreement, Wallaby, Hoosier and Terrapin agree that (i) Hoosier (or one or
more of its designees) shall purchase the Hoosier Assets; (ii) Terrapin (or
one or more of its designees) shall purchase the Terrapin Assets; (iii)
Wallaby (or one or more of its designees) shall purchase the Wallaby
Assets; and (iv) the Three Party Assets and the Assets to be Sold shall be
purchased by Wallaby, Hoosier and Terrapin (or one or more of their
respective affiliates) through the GP or as otherwise agreed to by all of
the Purchasers). The aggregate cash purchase price shall be determined in
accordance with the Purchase Agreement and, at the Closing, the amounts
payable by each of Wallaby, Hoosier and Terrapin, as the case may be, shall
be an amount equal to (A) such Purchaser's "Share of Cash Consideration to
RNA Shareholders" (as set forth on the Master Schedule) plus (B) such
party's Percentage Interest in any and all other amounts payable by
Purchasers pursuant to the Purchase Agreement (including, without
limitation, the Additional Amount, if any, and any amounts payable as of
the Closing Date pursuant to Section 5.7(a) of the Purchase Agreement). For
purposes of illustration, if the Master Schedule as of the Closing Date is
identical to the Master Schedule attached hereto as Exhibit A and the
Purchasers were obligated to pay an additional $50,000,000 pursuant to
clause (B), then (x) Wallaby would be required to pay the euro ((euro))
equivalent of $975,112,000 plus $21,679,500 (i.e. 43.359% of $50,000,000),
(y) Hoosier would be required to pay the euro ((euro)) equivalent of
$715,517,000 plus $14,657,500 (i.e. 29.315% of $50,000,000), (z) Terrapin
would be required to pay the euro ((euro)) equivalent of $541,432,000 plus
$13,663,000 (i.e. 27.326% of $50,000,000). All such amounts shall be paid
in cash by each of Wallaby, Hoosier and Terrapin in euros to the extent
required by the Purchase Agreement. To the extent currency fluctuation
results in an increase or decrease in the amounts payable under the
Purchase Agreement relating to the allocations based on dollars (U.S.) in
the Master Schedule, then the obligation of each of Wallaby, Hoosier and
Terrapin to pay its portion of the purchase price in euros shall be
increased or decreased under this Section 2.01(a) to reflect such currency
fluctuation.
(b) If a direct or indirect transfer of any property or asset
identified as a Wallaby Asset, a Hoosier Asset or a Terrapin Asset to
Wallaby (or its designee(s)), Hoosier (or its designee(s)) or Terrapin (or
its designee(s)), as the case may be, is determined not to be the most
efficient structure for the transaction or cannot be accomplished based on
existing contractual limitations, then Wallaby, Hoosier and Terrapin shall
cooperate in arranging the sale or other transfer of ownership of such
property or asset, or of the entity owned by Target which directly or
indirectly owns the relevant property or asset, to the party which
otherwise would have purchased the property or asset. However, if such
entity is to own properties and/or assets allocated to two or more of
Wallaby, Terrapin and Hoosier, then such properties and/or assets shall be
jointly owned by an entity created in accordance with this Agreement or as
otherwise agreed to by the affected Purchasers. It is currently expected
that an arrangement of the type described in this Section 2.01(b) will be
required with respect to the properties and other assets of the Urban OP,
the Three Party Assets and any of the Assets to be Sold that are not sold
by Target prior to the Closing. Wallaby, Hoosier and Terrapin (or their
designees) shall contribute cash for the purchase of any such entity in the
manner described in this Agreement or as otherwise agreed to by all of the
Purchasers prior to the Closing. Wallaby, Hoosier and Terrapin shall
cooperate in establishing the structure of such jointly owned entities in
order to avoid unnecessary expense and to minimize any adverse financial or
tax consequences of these entities.
(c) Wallaby, Hoosier and Terrapin shall use their reasonable best
efforts to sell the Assets to be Sold as soon as practicable, in accordance
with the provisions of the Purchase Agreement. Wallaby, Hoosier and
Terrapin shall consult and cooperate with one another in connection with
the sale of the Assets to be Sold, and in determining the terms and
conditions of the sale contracts with respect to the Assets to be Sold. The
consent of all of Wallaby, Hoosier and Terrapin shall be required for any
agreement to sell an Assets to be Sold; provided, however, that the parties
agree that, following the completion of the marketing program agreed upon
by the Purchasers and subject to the terms of the Purchase Agreement, any
Asset to be Sold may be sold to a third party that is not affiliated with
any of the Purchasers at the request of any of Wallaby, Hoosier or Terrapin
at a cash price equal to at least 95% of the Minimum Price regardless of
the objections of any other Purchaser(s). In the event that more than one
Purchaser desires to invoke the immediately preceding sentence, a majority
of the Purchasers shall determine the collective actions to be taken by the
Purchasers. In the event that an Asset to be Sold is sold to a third party
after the Closing, the net proceeds from such sale shall be distributed to
Wallaby, Hoosier and Terrapin (or shall reduce their obligation to fund
their cash purchase price, if the sale is completed prior to the Closing),
based on their respective Percentage Interests. Decisions regarding brokers
and similar matters relating to the process by which purchasers are
solicited for any Asset to be Sold shall require the consent of any two of
Wallaby, Hoosier and Terrapin.
2.02 Liabilities; Transfer Taxes; Repayment of Debt; Redemption
of Urban Preferred; Damaged Assets; Intangible Assets; Other Matters.
(a) Assumption of Liabilities; Allocation of Liabilities;
Transfer Taxes. Wallaby (or its designee(s)) shall assume (or take subject
to) all liabilities and obligations specifically related to the Wallaby
Assets (including mortgage and secured debt), Terrapin (or its designee(s))
shall assume (or take subject to) all liabilities and obligations
specifically related to the Terrapin Assets (including mortgage and secured
debt) and Hoosier (or its designee(s)) shall assume (or take subject to)
all liabilities and obligations specifically related to the Hoosier Assets
(including mortgage and secured debt) (all such liabilities and
obligations, "Asset Specific Liabilities"). For purposes of this Section
2.02(a), all interest rate swaps, caps, treasury locks and other
derivatives and xxxxxx shall be allocated to the debt to which these
instruments or arrangements relate and the costs of unwinding these
instruments or arrangements shall be borne in accordance with this
allocation. Transfer taxes, transfer fees, lender consent fees and other
similar amounts payable to third parties in connection with the transfer of
any property or asset pursuant to the Purchase Agreement shall be allocated
to the party to whom such property or asset is allocated regardless of
whether that property or asset is acquired by such party directly or is
held as a Jointly Owned Allocated Asset.
(b) Unallocated Liabilities. Except as set forth in this
Agreement, liabilities under the Purchase Agreement which are not Asset
Specific Liabilities shall be assumed or paid at the Closing based on the
Percentage Interests of Wallaby, Hoosier and Terrapin. These liabilities
shall include the obligations of Purchasers under Section 5.11 of the
Purchase Agreement and debt issued by Target or any Target Subsidiary that
is not an Asset Specific Liability to the extent not repaid by Target on or
prior to the Closing. Obligations under Section 5.7 of the Purchase
Agreement shall be allocated to Wallaby, Hoosier or Terrapin in accordance
with their Percentage Interests except to the extent that employees are
clearly allocable solely to a Wallaby Asset, a Hoosier Asset or a Terrapin
Asset, in which case, Wallaby, Hoosier or Terrapin, as appropriate, shall
assume such obligation.
(c) Repayment of Unallocated Debt at Closing. If the Purchasers
unanimously elect, or are required by one or more third parties, to repay
at the Closing any indebtedness of Target or any Target Subsidiary (other
than Asset Specific Liabilities, which shall be the sole and exclusive
responsibility of the party to which the property or asset in question has
been allocated), at the Closing, each of Wallaby, Hoosier and Terrapin
shall pay in cash its Percentage Interest of the indebtedness to be repaid.
For these purposes, "indebtedness" shall be deemed to include the costs of
unwinding any interest rate swaps, caps, treasury locks and other
derivatives and xxxxxx associated with the indebtedness that is being
repaid. Each of Wallaby, Hoosier and Terrapin hereby acknowledges and
agrees that the indebtedness described on Exhibit B attached hereto will be
repaid by the Purchasers in connection with the Closing. Any Non-Purchasing
Party (as defined in Section 3.02(b)) shall, without duplication of amounts
required to be paid pursuant to Section 3.02(c), pay in cash at the Closing
its Default Percentage multiplied by the aggregate amount of the
indebtedness to be repaid in accordance with this Section 2.02(c).
(d) Conversion of Damaged Assets to Three Party Assets. If any
Wallaby Asset, Terrapin Asset or Hoosier Asset suffers Damages (as defined
below) prior to the Closing, but the Purchasers are obligated to consummate
the transactions contemplated by the Purchase Agreement, then, at the
election of the Purchaser to which the damaged property or asset has been
allocated, such damaged property or asset shall be purchased as a Three
Party Asset with each of Wallaby, Hoosier and Terrapin contributing to the
purchase price for such property or asset in proportion to their respective
Percentage Interests (as adjusted to reflect the operation of this Section
2.02(d)). "Damages" shall mean a change in the value of a property or asset
of at least 5% of the Gross Asset Value with respect to such property or
asset to the extent not covered by insurance, including casualty loss,
claims or obligations relating to environmental or tax liability, and
litigation unrelated to tenants, employees or the operation of such
property or asset consistent with current use, but shall exclude changes
resulting from (i) tenant bankruptcies, changes in occupancy rates, changes
in rent rolls in the ordinary course of Target's business (as opposed to
inaccuracies in Target's representations or warranties in the Purchase
Agreement with respect to the Rent Rolls), or collectability of rents
associated with that property or asset, (ii) general changes in the economy
or financial markets in the United States or any region outside the United
States, (iii) changes in Law that affect real estate investment trusts
generally, unless such changes have a materially disproportionate effect
relative to other properties or assets, and (iv) changes that affect the
retail industry or retail real estate properties generally, unless such
changes have a disproportionate effect relative to the other properties or
assets. In no event (y) will "Damages" include, or be deemed to include,
any change in the NOI of San Francisco Centre that results from the
resolution of the pending ground rent dispute with the ground lessor, and
(z) will Wallaby be entitled to convert San Francisco Centre to a Three
Party Asset as a result of such dispute or the resolution thereof.
2.03 Intangible Property. All trademarks, service marks, trade
dress, logos, trade names and corporate names, whether or not registered,
including all common law rights thereto, and registrations and applications
for registration thereof, and all other intangible property relating to an
property or asset shall become the property of the party acquiring the
property or asset. Prior to the Closing, the parties will identify any
intangible property, such as management information systems, which may be
used in connection with more than one property or asset, and will enter
into a mutually satisfactory agreement for the joint use of such property.
2.04 Other Asset-Related Matters.
(a) Termination of Property Management Agreements. To the extent
permitted under agreements with third parties, as soon as reasonably
practicable after the Closing, if requested by a party to whom a specific
property or asset has been allocated (i.e. a Wallaby Asset, a Hoosier Asset
or a Terrapin Asset), the parties shall cooperate so that the existing
management agreements relating to such property or asset shall be
terminated (without the need for prior notice or payment of any termination
fee) and the party to whom such property or asset is allocated shall have
the right to enter into new management agreements with such parties as it
may choose.
(b) Accounting Prior to Closing; Closing Adjustments. The
Purchasers will endeavor to cause Target and the Target Subsidiaries to
account for all items of income and expense relating to the Wallaby Assets,
the Hoosier Assets and the Terrapin Assets on a property-by-property basis.
To the extent not reflected on the Master Schedule (or the assumptions
underlying the entries therein), all capital expenditures after the date
hereof with respect to Wallaby Assets, Hoosier Assets and Terrapin Assets
will be allocated to, and borne by, the Purchaser to which such asset is
allocated. In connection with the Closing, the Purchasers will make
customary closing adjustments with respect to the Wallaby Assets, the
Hoosier Assets and the Terrapin Assets. All such allocations will be made
in a manner to be agreed upon by Wallaby, Hoosier and Terrapin such that,
to the maximum extent practicable, each Purchaser derives the benefits and
bears the burdens (financial or otherwise) of the properties and/or assets
that have been allocated to it. After the Closing, the Purchasers will make
appropriate payments to one another to reflect any revisions to such
closing adjustments; provided, however, that no such revisions shall be
made after March 31, 2003.
ARTICLE III
CONSENTS; CERTAIN DECISIONS
3.01 Consents. All consents, approvals or waivers to be given by
the Purchasers under the Purchase Agreement shall require the consent of
all of Wallaby, Hoosier and Terrapin, in each case in accordance with the
provisions of the Purchase Agreement; provided, however, that any consents,
approvals or waivers that relate exclusively to a Wallaby Asset, a Hoosier
Asset or a Terrapin Asset shall be given by Wallaby, Hoosier or Terrapin,
respectively, and shall not require the consent or approval of the other
parties (unless the liabilities assumed by any non-consenting party would
be increased, in which case, that affected non-consenting party's consent
also shall be required). Any amendment to the Purchase Agreement shall
require the consent of all of Wallaby, Hoosier and Terrapin.
3.02 Closing Conditions.
(a) The decision as to whether a condition under Section 7.1 of
the Purchase Agreement shall be waived shall require the consent of all of
Wallaby, Hoosier and Terrapin, except as otherwise set forth herein.
(b) Subject to Sections 3.02(c) and 3.02(e) below, if Wallaby,
Hoosier and Terrapin (acting in good faith) do not all agree as to whether
a condition under Section 7.1 of the Purchase Agreement is satisfied or
whether a termination right is available to Purchasers under Article VIII
of the Purchase Agreement, and if the party (or parties) which does not
believe that the condition is satisfied or which believes that such
termination right is available (individually or collectively, as the case
may be, the "Non-Consenting Party") does not waive such condition or
desires to exercise such termination right, then the Non-Consenting Party
shall have the right to terminate the Purchase Agreement, if and when such
termination right is available to the Purchasers pursuant to Article VIII
of the Purchase Agreement provided the requirements of the following two
sentence are satisfied. Each of the Purchasers hereby agrees that if it
desires to terminate the Purchase Contract in accordance with this Section
3.02(b), such Non-Consenting Party shall immediately deliver to all of the
other Purchasers written notice of its intention to terminate the Purchase
Agreement pursuant to this Section 3.02(b) (a "Section 3.02(b) Termination
Notice"). If any single Purchaser does not (or any two Purchasers do not)
notify the Non-Consenting Party in writing of its (or their) election to
proceed under Section 3.02(c) (such notice, a "Section 3.02(b) Negation
Notice") within five (5) business days (or such shorter period of time as
is (i) reasonable in light of the scheduled closing date and the
Purchasers' ability to postpone the Closing and (ii) specified in the
Section 3.02(b) Termination Notice) after their receipt of a Section
3.02(b) Termination Notice, then the Non-Consenting Party will have the
right to terminate the Purchase Agreement.
The Non-Consenting Party hereby agrees to indemnify and hold
harmless the other parties from all claims by third parties (including,
without limitation, Target) arising out of the termination of the Purchase
Agreement by the Non-Consenting Party. The Non-Consenting Party shall have
the right, at its cost and expense, to defend any such claim and to settle
any such claim relating to or arising out of the termination of the
Purchase Agreement. The Non-Consenting Party shall have full control of the
defense against these claims. If any indemnified party wishes, it may
participate at its own cost, but not control, the defense or settlement of
any such claim. The Non-Consenting Party shall not be liable for any
settlement effected without its consent. The Non-Consenting Party shall not
settle any claim unless (i) the terms of such settlement do not impose any
obligations on any indemnified party, (ii) the full amount of the monetary
settlement will be paid by the Non-Consenting Party, and (iii) each
indemnified party receives as part of the settlement a full and
unconditional release of its liabilities with respect to the claim. If the
Non-Consenting Party obtains a judicial determination (which is not subject
to appeal) that there is no liability or other amounts payable to the
Target arising out of the termination of the Purchase Agreement, then each
of the other parties to this Agreement shall reimburse the Non-Consenting
Party for the product of (i) the out-of-pocket expenses of the
Non-Consenting Party in connection with the defense of the claims relating
to the termination of the Purchase Agreement and (ii) such party's
Percentage Interest.
(c) Except as set forth in this Section 3.02(c) and subject to
Section 3.02(e), if any of the parties is unable or unwilling (including
any unwillingness to waive a condition under Section 7.1 of the Purchase
Agreement) to consummate the transactions contemplated by the Purchase
Agreement or if any of the Purchasers is a Non-Consenting Party
(individually or collectively, as the case may be, the "Non-Purchasing
Party), the other parties (individually or collectively, as the case may
be, the "Purchasing Party") shall have the right to purchase all the Assets
of Target as contemplated under the Purchase Agreement. In that case, (i)
except as set forth in this Section 3.02(c), the Non-Purchasing Party shall
be relieved of all of its obligations under this Agreement and the Purchase
Agreement and (ii) the Purchasing Party will indemnify, defend and hold the
Non-Purchasing Party harmless from and against any and all liability
arising from or relating to the Purchase Agreement.
In the event that such purchase right is exercised by the
Purchasing Party, the Non-Purchasing Party hereby agrees to purchase
Target's interests in the Purchaser/Target JV Asset(s) applicable to such
Non-Purchasing Party simultaneously or as soon as practicable following the
consummation of the transactions contemplated by the Purchase Agreement. In
the event the provisions of this Section 3.02(c) are applicable, (i) all of
the properties and assets allocated to the Non-Purchasing Party (other than
the applicable Purchaser/Target JV Assets) shall be reallocated to the
Purchasing Party(ies), and the Master Schedule will be revised to reflect
such reallocation; (ii) the Non-Purchasing Party will have no interest
whatsoever in the Assets to be Sold or the Three Party Assets, and the
Master Schedule will be revised to indicate that the Non-Purchasing Party's
"Share of Value in Three Party Assets" and the Non-Purchasing Party's
"Share of Value in Assets to be Sold" are each $0; (iii) the Non-Purchasing
Party's Percentage Interest shall be deemed to equal its Default
Percentage, and the Master Schedule will be revised to reflect the same;
(iv) each of the Purchasing Parties' Percentage Interests will be adjusted
to reflect the matters described in clauses (i) - (iii); and (v) the
Non-Purchasing Party shall purchase Target's interest the applicable
Purchaser/Target JV Asset(s) for an amount, payable in euros ((euro)),
calculated in accordance with clause (A) and clause (B) of Section 2.01(a)
and on the basis of the Master Schedule as revised pursuant to clauses (i)
- (iii). In addition, but without duplication of any payment required
pursuant to clause (v) above, the Non-Purchasing Party will also be
required to pay its Percentage Interest (as revised pursuant to clause
(iii) above) of unallocated indebtedness pursuant to Section 2.02(c).
If the Purchasing Party has exercised its rights under this
Section 3.02(c), except to the extent the same relate to the applicable
Purchaser/Target JV Assets, following such exercise, the Non-Purchasing
Party will not be entitled to vote on, consent to or otherwise approve or
participate in any action required to be taken by the Purchasers pursuant
to the Purchase Agreement or this Agreement; provided, however, that
neither the Purchase Agreement nor this Agreement shall be modified or
amended in any way that materially increases the obligations, or materially
decreases the rights, of the Non-Purchasing Party.
Notwithstanding anything in this Section 3.02(c) to the contrary
(including the immediately preceding paragraph), if Wallaby is the
Non-Purchasing Party, then neither Hoosier nor Terrapin (individually or
collectively) shall consummate the transactions contemplated by the
Purchase Agreement unless at the time of Closing it is reasonably expected
that no less than Euro 51.12 per Ordinary Share will be distributed by
Target in accordance with the Protocol.
(d) If a party breaches its agreements in this Agreement or the
Purchase Agreement and that breach causes termination of the Purchase
Agreement, the breaching party shall be responsible for all damages
resulting from the termination of the Purchase Agreement and shall
indemnify and hold harmless the non-breaching parties. The indemnifying
party shall have the right, at its cost and expense, to defend any claim
and to settle any claim relating to or arising out of the termination of
the Purchase Agreement. The indemnifying party shall have full control of
the defense against these claims. If any indemnified party wishes, it may
participate at its own cost, but not control, the defense or settlement of
any such claim. The indemnifying party shall not be liable for any
settlement effected without its consent. The indemnifying party shall not
settle any claim unless (i) the terms of such settlement do not impose any
obligations on any indemnified party, (ii) the full amount of the monetary
settlement will be paid by the indemnifying party, and (iii) each
indemnified party receives as part of the settlement a full and
unconditional release of its liabilities with respect to the claim.
(e) Subject to Section 3.01, the decision as to whether a
condition under Section 7.1(e) of the Purchase Agreement shall be waived
with respect to any particular property or asset shall be made solely by
the party acquiring the property or asset (with respect to the property or
asset in question, the "Required Consent Party"). With respect to any
consents and/or waivers relating to Rolim Associates or Tishman Hotel &
Realty, all of the Purchasers will be Required Consent Parties. If (i) the
Required Consent Party decides not to waive a condition under Section
7.1(e) of the Purchase Agreement with respect to any property or asset
allocated to it, and (ii) the failure of such condition entitles the
Purchasers to terminate the Purchase Agreement pursuant to Article VIII
thereof, and (iii) the Required Consent Party desires to terminate the
Purchase Agreement, then (y) the Required Consent Party shall immediately
deliver a Section 7.1(e) Termination Notice (as defined below) to all of
the other Purchasers and (z) if the Required Consent Party does not receive
a Negation Notice (as defined below) within five (5) business days (or such
shorter period of time as is (i) reasonable in light of the scheduled
closing date and the Purchasers' ability to postpone the Closing and (ii)
specified in the Section 7.1(e) Termination Notice) after its delivery of
such Section 7.1(e) Termination Notice to all of the other Purchasers, the
Required Consent Party will have the right to terminate the Purchase
Agreement.
As used in this Section 3.02(e), (i) "Section 7.1(e) Termination
Notice" means a notice delivered by the Required Consent Party which (A)
identifies with specificity the condition under Section 7.1(e) of the
Purchase Agreement that has not been satisfied, (B) identifies the property
or asset to which such condition relates (such property or asset, the
"Section 7.1(e) Trigger Asset") and (B) expressly sets forth the Required
Consent Party's irrevocable election to terminate the Purchase Agreement if
it does not receive a Negation Notice from one or both of the other
Purchasers within the 5-business day period (or such shorter period of time
as is (i) reasonable in light of the scheduled closing date and the
Purchasers' ability to postpone the Closing and (ii) specified in the
Section 7.1(e) Termination Notice) specified in this Section 3.02(e), and
(ii) "Negation Notice" means a notice delivered to a Required Consent Party
by one or both of the other Purchasers following its (or their) receipt of
a Section 7.1(e) Termination Notice, which notice sets forth such
Purchaser's irrevocable election to purchase the Section 7.1(e) Trigger
Asset. Upon the Required Consent Party's receipt of a Negation Notice, (i)
the Section 7.1(e) Trigger Asset shall be reallocated to the Purchaser(s)
that delivered such Negation Notice, (ii) the Percentage Interests of such
Purchaser(s) and the Required Consent Party will be adjusted to reflect
such reallocation and (iii) all of the Purchasers shall continue to be
bound by the terms of this Agreement and the Purchase Agreement and
obligated to consummate the transactions contemplated hereby and thereby.
3.03 Notices. Any notice which any of Wallaby, Terrapin or
Hoosier desires to deliver to Target under the Purchase Agreement shall
require the consent of all of Wallaby, Hoosier and Terrapin (which consent
shall not be unreasonably withheld or delayed), unless a party is expressly
authorized to take action under the terms of this Agreement without the
other parties' consent.
3.04 Joint Control; Defense of Suits. Subject to the other
provisions of this Agreement (including Sections 3.02(c)), unless related
solely to an property or asset allocated to any of Wallaby, Hoosier or
Terrapin, then Wallaby, Hoosier and Terrapin shall jointly control the
defense of any action, suit or proceeding in connection with, relating to
or arising under, the Purchase Agreement or in connection with any Assets
to be Sold or Three Party Assets which is instituted prior to the Closing
Date and no party shall consent to the settlement or compromise of such
action without the prior written consent of the others (not to be
unreasonably withheld, conditioned or delayed). All losses and expenses in
connection with jointly controlled actions, suits or proceedings in
connection with, relating to or arising under, the Purchase Agreement shall
be shared by Wallaby, Hoosier and Terrapin based on their respective
Percentage Interests.
3.05 Management of Three Party Assets. To the extent that
property management services are required with respect to any Assets to be
Sold and/or any Three Party Assets (including any allocated property that
is converted to a Three Party Asset in accordance with Section 2.02(d)),
such services will be provided by Urban Retail. All consents, approvals,
decisions and other actions with respect to Kravco, Urban Retail and any
other Three Party Assets shall require the approval of all of Wallaby,
Hoosier and Terrapin; provided, however, that any consents, approvals,
decisions or other actions that relate exclusively to a Wallaby Asset, a
Hoosier Asset or a Terrapin Asset (including actions taken by Urban Retail
in its capacity as property manager with respect to any such asset) shall
be given or taken by Wallaby, Hoosier or Terrapin, respectively, and shall
not require the consent or approval of the other parties (unless the
liabilities assumed by any other party would be increased, in which case,
the affected party's consent also shall be required).
3.06 Garden State Consent. Subject to Section 3.08, Wallaby
hereby irrevocably waives (and shall cause any entities it controls to
waive) any rights it may have under Article X of the Amended and Restated
Limited Partnership Agreement of Westland Garden State Plaza Limited
Partnership, dated as of July 1, 1993, among Westland Management, Inc., HRE
Garden State Plaza, Inc. and Westland Partners, Inc. in connection with the
sale of the Assets of Target and the Target Subsidiaries pursuant to the
Purchase Agreement and this Agreement.
3.07 Franklin Park Consent. Subject to Section 3.08, Terrapin
hereby irrevocably waives (and shall cause any entities it controls to
waive) any rights it may have to consent to, or approve of, the transfer of
Target's interests in Franklin Mall Limited Partnership to Wallaby (or its
designee) and hereby waives any rights of first offer and/or rights of
first refusal to which Terrapin (or any of Terrapin's affiliates) may be
entitled in respect of such transfer in connection with the sale of the
Assets of Target and the Target Subsidiaries pursuant to the Purchase
Agreement and this Agreement.
3.08 Consents Not Effective if Purchase Agreement is Terminated.
Notwithstanding anything to the contrary contained in this Agreement or in
the Purchase Agreement, if the Purchase Agreement is terminated for any
reason whatsoever, the consents and waivers set forth in Sections 3.06 and
3.07 shall be null and void and no further force or effect with respect to
any transaction occurring after the termination of the Purchase Agreement.
3.09 Urban Retail Management of Competitive Malls. In the event
that Urban Retail manages, or proposes to manage, any regional mall (but
excluding any of the Wallaby Assets, Hoosier Assets or Terrapin Assets
managed by Urban Retail) that is located within a ten (10) mile radius of
any regional mall that is owned or controlled, directly or indirectly, or
managed by Wallaby, Hoosier or Terrapin, all decisions relating to Urban
Retail's management of such potentially competitive property and the
decision to have Urban Retail manage such competitive property will require
the unanimous consent of Wallaby, Hoosier and Terrapin. If Urban Retail
currently manages any such competitive mall, the Purchasers will take such
reasonable actions as are required to terminate the management agreement in
question in an expeditious manner.
ARTICLE IV
EXPENSES; BREAK-UP FEE OR BREAK-UP EXPENSES
4.01 Individual Expenses. Except as otherwise set forth herein,
each party will bear its own expenses, including (i) the fees of its own
investigations into the value and other characteristics of the portfolio of
properties and/or assets being purchased pursuant to the Purchase
Agreement; (ii) the fees of its own professional advisors; (iii) the
expenses relating to each property or asset being acquired by such party,
including without limitation, (a) the cost of any title insurance (for
itself or any lender, including lenders of indebtedness assumed by such
party in connection with the acquisition of such property or asset under
the Purchase Agreement), surveys, title inspections, environmental reports,
engineering reports and appraisals that such party elects to obtain, and
(b) the amount of any prepayment premiums or similar payments required as a
result of a prepayment of debt associated with such property or asset on or
prior to the Closing Date.
4.02 Break-up Fee or Break-up Expenses. If Target pays a Break-up
Fee, Break-up Expenses or Reduced Break-up Expenses pursuant to the
Purchase Agreement, then any amount so paid by Target shall be allocated
among the Purchasers as follows: (i) any Break-up Fee shall be allocated
based on the respective Percentage Interests of the Purchasers, and (ii)
Break-up Expenses or Reduced Break-up Expenses (the "Expenses") shall be
allocated based on the respective Percentage Interests of the Purchasers;
provided, however that no Purchaser shall receive more than its actual
out-of-pocket expenses (and any amount by which the Percentage Interest of
a Purchaser multiplied by the Expenses exceeds actual out-of-pocket
expenses of that Purchaser, shall be allocated to the other Purchasers).
ARTICLE V
MISCELLANEOUS
5.01 Notices. Notices to any of Wallaby, Terrapin or Hoosier
shall be given in the manner provided in Section 9.3 of the Purchase
Agreement.
5.02 Headings. The headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.03 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic
or legal substance of the transactions contemplated hereby is not affected
in any manner adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest extent
possible.
5.04 Consultation and Cooperation. The parties shall consult with
each other in connection with their efforts to consummate the transactions
contemplated by the Purchase Agreement and this Agreement, and shall
cooperate, in reasonable respects, with each other in seeking to effect
these transactions in the most effective and efficient manner.
5.05 Reservation of Rights. If the Closing does not occur and the
Purchase Agreement is terminated pursuant to the terms thereof, this
Agreement, the Transaction Documents and any other discussions,
negotiations or exchanges relating to the transactions contemplated by the
Transaction Documents shall be with full reservation of rights and none of
the Transaction Documents (other than the Confidentiality Agreements) or
any such discussions, negotiations or exchanges shall be regarded as
waiving any rights or claims of any party thereto in any ruling, litigation
or any future claims that are or could be made relating to the transactions
contemplated by the Transaction Documents. For purposes of this Section
5.05, "Transaction Documents" means the "Transaction Documents" (as defined
in the Purchase Agreement), this Agreement and all other agreements between
and/or among the Purchasers with respect to the transactions contemplated
by the Purchase Agreement and/or this Agreement.
5.06 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and
oral.
5.07 Assignment. No party may assign this Agreement without the
consent of the other party; provided that a party may assign its rights
hereunder to an affiliate, but no such assignment shall relieve the
assignor of any of its obligations hereunder.
5.08 No Third-Party Beneficiaries. This Agreement shall be
binding upon Wallaby, Hoosier and Terrapin and shall inure to the sole
benefit of Wallaby, Hoosier and Terrapin, and their respective successors,
heirs, legal representatives and permitted assigns. Nothing herein, express
or implied, is intended to or shall confer upon any other person or entity
any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
5.09 Amendment; Waiver. This Agreement may not be amended or
modified except by an instrument in writing signed by each of Wallaby,
Hoosier and Terrapin.
5.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. All actions
and proceedings arising out of or relating to this Agreement shall be heard
and determined in any state or federal court sitting in the City of New
York, and the parties hereto hereby irrevocably submit to the exclusive
jurisdiction of such courts in any such action or proceeding and
irrevocably waive the defense of an inconvenient forum to the maintenance
of any such action or proceeding.
5.11 Counterparts. This Agreement may be executed in one or more
counterparts, and by the parties hereto in separate counterparts, each of
which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, Wallaby, Hoosier and Terrapin have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
WESTFIELD AMERICA LIMITED PARTNERSHIP
By: Westfield America, Inc., its general partner
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc., its general partner
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
THE XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
