INDEMNITY AGREEMENT
Exhibit 10.1
Execution Copy
This INDEMNITY AGREEMENT, dated as of February _,2006 (this “Agreement”), is made and
entered into by General Growth Properties, Inc., a Delaware corporation (“GGP”) and The
Xxxxx Company, LP, a Delaware limited partnership and the successor to The Xxxxx Company, Inc., a
Maryland corporation (“Xxxxx”) (collectively, the “Indemnifying Parties”), in
favor of and for the benefit of the Holders.
WHEREAS, in 1996 Xxxxx acquired The Xxxxxx Corporation (“THC”) pursuant to the
Agreement and Plan of Merger, dated as of February 22, 1996 (the “1996 Merger Agreement”),
among Xxxxx, TRC Acquisition Company I and THC (the “1996
Merger”);
WHEREAS, in satisfaction of a condition precedent set forth in the 1996 Merger Agreement,
Xxxxx entered into that certain Contingent Stock Agreement, effective as of January 1, 1996 (the
“CSA”), in favor of and for the benefit of the Holders;
WHEREAS, pursuant to Section 7.04(a) of the CSA, Xxxxx agreed to require any successor to all
or substantially all of the business and/or assets of Xxxxx, by agreement in form and substance
reasonably acceptable to the Holders, to expressly assume and agree to perform the CSA in the same
manner and to the same extent that Xxxxx would be required to perform it if no such succession
took place;
WHEREAS, pursuant to Section 7.04(b) of the CSA, Xxxxx expressly agreed that, without the
prior written consent of the Majority Holders, it would not undertake or complete any transaction
if such transaction could reasonably be expected to have a prejudicial effect on the Holders with
respect to their non-taxable receipt of securities pursuant to the 1996 Merger Agreement or the
CSA;
WHEREAS, GGP, Xxxxx, and Red Acquisition LLC (“Merger Sub”) are parties to that
certain Agreement and Plan of Merger dated as of August 19, 2004 (the “2004 Merger
Agreement”), pursuant to which, as of the “Effective Time” (as defined in the 2004 Merger
Agreement), Merger Sub merged with and into Xxxxx and GGP assumed the obligations of Xxxxx under
the CSA (collectively the “2004 Merger”);
WHEREAS, in connection with the 2004 Merger, GGP and Xxxxx entered into that certain
Assumption Agreement dated October 19, 2004, pursuant to which GGP assumed the obligations of
Xxxxx under the CSA (the “GGP Assumption”);
WHEREAS, as a result of the 2004 Merger and the GGP Assumption, future distributions of
Contingent Shares under the CSA will be made to the Holders in shares of common stock of GGP
rather than shares of common stock of Xxxxx;
WHEREAS, the Indemnifying Parties desire to indemnify the Holders, on the terms and
conditions set forth herein, for the possibility of certain actual or deemed tax liabilities the
Holders may incur as a result of the 2004 Merger and/or the GGP Assumption; and
WHEREAS, the Indemnifying Parties are entering into this Agreement (i) in satisfaction of
certain aspects of the Order, dated November 8, 2005, of the Arbitration Panel, comprised of
Judge
Xxxxxx Xxxxx, Xx. Xxxxxx Xxxxx and Xx. Xxxx Xxxxxx, that heard certain disputes between the
Indemnifying Parties and the Representatives relating to the CSA; (ii) with the understanding
between the Indemnifying Parties that this Agreement be in lieu of, and supersede and replace
in
its entirety, the one-sentence indemnity contained in Paragraph 2 of the GGP Assumption; and
(iii)
the Indemnifying Parties’ and the Representatives’ respective positions on the foregoing
sentence
are contained in a letter dated
March , 2006.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Indemnifying Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01
Defined Terms. As used in this Agreement, the following defined terms have the
meanings indicated below:
(a) “Accounting Referee” has the meaning specified in Section 2.05.
(b) “Agreement” means this Indemnity Agreement.
(c) “Applicable Federal Rate” has the meaning specified in the CSA.
(d) “Code” means the Internal Revenue Code of 1986, as amended.
(e)
“Contest” has the meaning specified in
Section 2.06(a).
(f) “Contestant” has the meaning specified in Section 2.06(a).
(g) “Contingent Shares” has the meaning specified in the CSA.
(h) “CSA” has the meaning specified in the preamble of this
Agreement.
(i) “GGP” has the meaning specified in the preamble of
this Agreement.
(j) “GGP Assumption” has the meaning specified in the preamble of this Agreement.
(k) “GGP Shares” means shares of the common stock of GGP (or any successor thereto) to
be issued or delivered to the Holders pursuant to the CSA.
(l) “Gross-Up” means any gross-up payment due to any Holder or Contestant pursuant to
Section 3.03.
(m) “Holders” means each of the Holders, as defined in the CSA, and in the case of a
Holder which is a Pass Through Entity the term “Holders” includes the Pass Through Entity and the
Member or Members of such Pass Through Entity.
(n) “Inclusion Issue” has the meaning specified in Section 2.04(a).
(o) “Indemnifiable Liability” means any Taxes resulting to or payable by a Holder,
from time to time, as a result of any Tax Assumption being determined to be incorrect solely
because of the consummation of the 2004 Merger and/or the GGP Assumption, reduced (but not below
zero) by any applicable Indemnity Credit; provided, however, that notwithstanding
anything herein to the contrary, the term Indemnifiable Liability does not include, with respect
to any Holder, any tax liability attributable to (i) any interest income realized for tax purposes
by reason of the issuance or delivery to such Holder, or to the Pass Through Entity of which such
Holder is, or was, a member, of shares under the CSA, whether prior or subsequent to the
consummation of the 2004 Merger; (ii) the 1996 Merger failing to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code for any reason other than solely because of the
consummation of the 2004 Merger and/or the GGP Assumption; (iii) the execution and delivery of the
CSA incident to the 1996 Merger or the receipt of shares thereunder being treated as one or more
taxable events for any reason other than solely because of the consummation of the 2004 Merger
and/or the GGP Assumption; (iv) the issuance or delivery of shares of stock pursuant to the CSA
prior to the consummation of the 2004 Merger other than solely because of the consummation of the
2004 Merger and/or the GGP Assumption; or (iv) consummation of the 2004 Merger on Xxxxx
shareholders as such, generally.
(p) “Indemnifiable Shares” means (i) shares of common stock of Xxxxx issued or
delivered to the Holders or the Pass Through Entities pursuant to the 1996 Merger; (ii) shares of
common stock of Xxxxx issued or delivered pursuant to the CSA; or (iii) GGP Shares issued or
delivered pursuant to the CSA, the bases of which, for income tax purposes, are affected by an
Indemnifiable Liability.
(q) “Indemnifying Parties” has the meaning specified in the preamble of this
Agreement.
(r) “Indemnity Credit” means, with respect to any Holder, the amount of reduction of
Tax of such Holder solely resulting from an event giving rise to an Indemnifiable Liability, which
reduction is realized by such Holder upon the disposition of an Indemnifiable Share in a
transaction in which gain or loss is recognized for federal income tax purposes prior to the
Indemnity Payment Date with respect to such share.
(s) “Indemnity Payment Date” means the date on which the Indemnifying Parties are
obligated to pay the amount of any Indemnifiable Liability as provided in Sections 2.04
through 2.06.
(t) “Majority Holders” has the meaning specified in the CSA.
(u) “Member” means each partner, member, stockholder or other beneficial owner of a
Pass Through Entity. Where a Member is a Pass Through Entity, then the term “Member” shall also
include the Member or Members of such Pass Through Entity.
(v) “Merger Sub” has the meaning specified in the preamble of this
Agreement.
(w) “Notice of Issue” has the meaning specified in Section
2.04(a).
(x) “Pass Through Entity” means any entity taxable as a partnership, “S corporation”
or other entity the income of which is not taxed to the entity but to its Members and any entity
whose existence separate from its Member or Members is disregarded for tax purposes.
(y) “Xxxxx” has the meaning specified in the preamble of this Agreement.
(z) “Section” means, unless otherwise indicated, the relevant Section of this Agreement.
(aa) “Taxes” means, with respect to any Holder, an amount determined by
multiplying the highest combined marginal federal and applicable state, foreign or local tax rate
on income or gain on the character of income recognized (including in the case of any state,
foreign or local taxes, taxes denominated as franchise taxes) times the income or gain asserted or
finally determined, as the case may be, to be recognized by such Holder as a result of an
Indemnifiable Liability. For purposes of determining such amount, any calculation will be made
without regard to any deductions, losses or credits of the Holders or Pass Through Entity, as the
case may be, which are not directly related to the 1996 Merger or the CSA.
(bb) “Tax Assumptions” mean the following regarding the tax treatment of the 1996
Merger, the 2004 Merger and the GGP Assumption to the Holders:
(i) the 1996 Merger constituted a “reorganization” within the meaning of Code
Section 368(a);
(ii) no taxable income or gain was recognized by the Holders as a result of
the exchange of stock of THC for that of Xxxxx in connection with the 1996 Merger
or by their acquisition of rights pursuant to the CSA;
(iii) no taxable income or gain was, or will be, recognized by the Holders by
reason of the issuance or delivery of shares of stock pursuant to the CSA prior to
the consummation of the 2004 Merger, except to the extent that a portion of each
share of stock so issued or delivered was treated as interest for income tax
purposes;
(iv) for United States federal income tax purposes and for the income tax
purposes of any state or any political subdivision thereof, no taxable income or
gain was recognized by the Holders by reason of the execution and delivery of this
Agreement;
(v) for United States federal income tax purposes and for the income tax
purposes of any state or any political subdivision thereof, the GGP Assumption
will not result in the recognition of income, gain or loss for tax purposes by the
Holders; and
(vi) for United States federal income tax purposes and for the income tax
purposes of any state or any political subdivision thereof, the issuance or delivery
to the Holders or a Pass Through Entity of GGP Shares (or those of a successor)
pursuant to the CSA will not result in taxable income or gain to the Holders, except
to the extent that any portion of each GGP Share so issued or delivered is treated
as interest income for tax purposes.
(cc) “Taxing Authority” means the United States Secretary of Treasury and any
delegate thereof, the United States Internal Revenue Service and any comparable state or local
agency or authority.
(dd) “Tax Notice” has the meaning specified in Section 2.04.
(ee) “THC” has the meaning specified in the preamble of this Agreement.
(ff) “1996 Merger” has the meaning specified in the preamble of this
Agreement.
(gg) “1996 Merger Agreement” has the meaning specified in the preamble of this
Agreement.
(hh) “2004 Merger” has the meaning specified in the preamble of this Agreement.
(ii) “2004 Merger Agreement” has the meaning specified in the preamble of this
Agreement.
ARTICLE II
INDEMNIFICATION AND REPRESENTATIONS
2.01 Indemnification. Subject to the conditions set forth in this Agreement, the
Indemnifying Parties hereby agree to pay and to be jointly and severally liable to each Holder
(and
to each Contestant for purposes of Section 2.01(v)) for the sum of: (i) any
Indemnifiable Liability
incurred or otherwise suffered by such Holder and any interest, penalties or additions to tax
asserted in connection therewith; (ii) without duplication of any amount specified in clause
(i), the
amount of any additions to tax and penalties imposed on such Holder as a result of such Holder
reporting consistent with Section 2.03(a); (iii) all out of pocket costs, fees and
expenses incurred or
paid by such Holder in the preparation of the Notice of Issue pursuant to Section
2.04; (iv) all out
of pocket costs, fees and expenses incurred or paid by such Holder pursuant to Section
2.05; (v)
any amounts due to such Holder or Contestant pursuant to the terms of Section 2.06;
(vi) any out of
pocket costs, fees and expenses incurred or paid by such Holder in connection with enforcement
of this Agreement, but only to the extent that such Holder is successful in adjudicating the
enforcement of this Agreement; and (vii) in each case, any applicable Gross-Up.
2.02 Clawback. In order for a Holder to be entitled to indemnification from the
Indemnifying Parties hereunder, such Holder must agree to repay to the Indemnifying Parties
any amounts received by such Holder pursuant to Section 2.01 if, and only to the extent
that, the aggregate tax due on any subsequent disposition by such Holder of any Indemnifiable Shares is
less than the amount that would have been due had the event giving rise to the Indemnifiable
Liability not occurred (in each case, calculated using the same assumptions as to highest marginal
tax rates used in the definition of “Taxes”); provided, however, that such
repayment obligation shall not arise, if and to the extent, that such tax reduction is attributable
to any event or reason other than as a result of the event giving rise to the Indemnifying Parties’
payment of the Indemnifiable Liability, including, by way of example, a Holder’s death.
| 2.03 Payment Reductions. (a) In order for a Holder to be entitled to indemnification from the Indemnifying Parties hereunder, such Holder must absent a determination from a Taxing Authority or the written consent of the Indemnifying Parties, file all tax returns in a manner consistent with the Tax Assumptions. The Indemnifying Parties shall have no obligation to make any payments under this Agreement to a Holder who fails to comply with this Section 2.03(a). |
(b) The Indemnifying Parties shall have no obligation to make any payment to a Holder under
this Agreement if (x) such Holder shall fail to comply timely with the requirements of
Sections 2.04 and 2.06 and (y) as a result the Indemnifying Parties’ ability to contest an
Indemnifiable Liability with respect to such Holder or any other Holder shall be materially
adversely affected.
2.04 Notice of Issue. (a) If at any time a Taxing Authority asserts by notice to any
Holder (a “Tax Notice”) that such Holder is, directly or indirectly, required to
include in income an
amount that would result in an Indemnifiable Liability (an “Inclusion Issue”), then in
order for a
Holder to be entitled to indemnification pursuant to Section 2.01 with respect to
such
Indemnifiable Liability, such Holder must first deliver within the earlier of (x) 60 days
after the
receipt of such Tax Notice or (y) 30 days before action must be taken in any proceeding
regarding
the Contest of such Inclusion Issue (unless such Holder receives the Tax Notice during such 30
day
period in which case such Holder shall be required to deliver within a reasonable time) to the
Indemnifying Parties a written demand for payment of any amounts due pursuant to Section
2.01.
which notice (the “Notice of Issue”) shall include;
(i) a description of the Inclusion Issue in reasonable detail;
(ii) copy of the Tax Notice;
(iii) a calculation of the Indemnifiable Liability;
(iv) a representation by such Holder that it has reported and will continue
to report to each Taxing Authority in a manner consistent with the Tax
Assumptions;
(v) written confirmation, in form and in substance reasonably acceptable to
the Indemnifying Parties, that such Holder (x) will comply with its obligations
under the provisions of this Agreement and (y) confirms that it is bound by all of
the terms of this Agreement.
(b) Within ten (10) days of receipt of the Notice of Issue by an Indemnifying Party, the
Indemnifying Parties shall either (i) pay the Holder who submitted such Notice of Issue
the total amount shown due in such Notice of Issue or (ii) notify such Holder in writing of their
intent to have the calculation of the Indemnifiable Liability contained in the Notice of Issue
verified pursuant to Section 2.05 and/or their intent to Contest the Inclusion Issue
pursuant to Section 2.06(a).
2.05
Verification. At the request of the Indemnifying Parties, the accuracy of any
calculation of the Indemnifiable Liability in a Notice of Issue shall be verified by an
independent,
nationally recognized public accountant selected initially by the Indemnifying Parties and
reasonably satisfactory to the Holder who submitted such Notice of Issue (the
“Accounting
Referee”). The Accounting Referee will have up to 30 days after its appointment (or,
if shorter, the
period ending ten (10) days before the date when payment of the Indemnifiable Liability is due
to the relevant Taxing Authority) to resolve the accuracy of the calculations with regard to the
Indemnifiable Liability contained in the Notice of Issue and deliver its findings. In order to
enable the Accounting Referee to verify such amounts the relevant Holder and the Indemnifying Parties
will provide to the Accounting Referee information reasonably necessary for verification.
Verification pursuant to this Section 2.05 shall be solely the expense of the
Indemnifying Parties
unless the amount claimed to be payable by the relevant Holder is incorrect by the greater of
25% or twenty-five thousand dollars ($25,000.00), in which case such Holder shall bear the expense
of the verification. In the absence of manifest error, the relevant Holder and the Indemnifying
Parties shall be bound by the findings of the Accounting Referee pursuant to this Section 2.05
and such amounts plus any additional amounts owed pursuant to Section 2.01(a) shall be paid
(unless the relevant Holder has also received a notice of the Indemnifying Parties’ intent to Contest) to
the relevant Holder by the Indemnifying Parties on the date that the Accounting Referee delivers
such findings.
2.06
Contests; Settlement. (a) The Indemnifying Parties may require any Holder who
submits a Notice of Issue or the authorized representative of the Pass Through Entity of which
such Holder is a Member, as appropriate, (herein the “Contestant”) to contest
(including any
appeals) at the Indemnifying Parties’ expense the Taxing Authority’s assertion with respect to
the relevant Inclusion Issue (“Contest”).
(b) If the sole issue being contested is an Inclusion Issue, then the Indemnifying
Parties shall have full control over such Contest but with due regard to the interests of the
Indemnifying Parties, the relevant Holder and the Contestant. Any costs, fees and expenses
(including the payment of any asserted tax deficiency required in order to pursue a refund)
incurred by the Contestant or the relevant Holder as a result of any Contest (“Contest
Costs”)
pursuant to this Section 2.06(b) shall be paid by the Indemnifying Parties.
(c) If issues, in addition to Inclusion Issues, are being contested in the same
proceeding the Contestant shall have full control over such Contest including any decision to
appeal the Contest but with due regard to the interests of both the Indemnifying Parties, the
relevant Holder and the Contestant, provided that upon the request of the Indemnifying Parties
and where in each case such request by the Indemnifying Parties is not unreasonably delayed (for
the avoidance of doubt, a request by the Indemnifying Parties will not be considered unreasonably
delayed if such request is made within 15 days of the Indemnifying Parties’ receipt of the
Notice of
Issue) (i) the Contestant shall make reasonable efforts to permit the Contest of the Inclusion
Issues to proceed separately from any other issues, (ii) the Contestant shall be permitted to settle
the
Inclusion Issues only with the consent of the Indemnifying Parties and (iii) the Contestant shall
to the extent possible consult with the Indemnifying Parties (or the advisor designated by the
Indemnifying Parties) during the course of such Contest (including, by way of example, permitting
the Indemnifying Parties to review all written documents prior to submission) and shall, to the
extent possible, permit the Indemnifying Parties (or the advisor designated by the Indemnifying
Parties) to attend the portion of any meetings or telephone conferences with a Taxing Authority
during which an Inclusion Issue is being discussed. The Indemnifying Parties shall be obligated to
pay only those Contest Costs directly relating to the Contest of the Inclusion Issues and an
equitable share of all other Contest Costs which result from any Contest pursuant to this
Section 2.06(c).
(d) In the event of a Contest, all amounts due to any Holder or Contestant pursuant to
Section 2.01 shall be paid to such Holder or Contestant by the Indemnifying Parties at
least ten (10) days before such amounts are due and payable by such Holder or Contestant.
ARTICLE III
GENERAL PROVISIONS
3.01
Notices. (a) All notices, requests and other communications which are required
or may be given pursuant to this Agreement shall be in writing and shall be deemed given when
delivered by hand, fax (receipt confirmed), or reputable overnight courier service as follows:
(i) If to the Holders, as their names and addresses appear on the registry
described in Section 4.09 of the CSA
(ii) If to GGP or Xxxxx,
| Chief Financial Officer | ||
| General Growth Properties, Inc. | ||
| 000 X. Xxxxxx Xxxxx | ||
| Xxxxxxx, XX 00000 | ||
| Telephone Number: (000) 000-0000 | ||
| Facsimile Number: (000) 000-0000 | ||
| and to | ||
| General Counsel | ||
| General Growth Properties, Inc. | ||
| 000 X. Xxxxxx Xxxxx | ||
| Xxxxxxx, XX 00000 | ||
| Telephone Number: (000) 000-0000 | ||
| Facsimile Number: (312) 960- 5485 |
3.02 Certain Calculation Assumptions. The calculation of the amount of any
Indemnifiable Liability, any Indemnity Credit or any other amount hereunder will be made
without regard to any deductions, losses or credits of the Holders or Pass Though Entities, as
the
case may be, which are not directly related to the 1996 Merger or the CSA.
3.03 Gross-Up of Payments. The amount of all payments to a Holder and to a
Contestant pursuant hereto shall include a gross-up for any federal, state, foreign or local
taxes
actually payable by such Holder or Contestant with respect to the receipt of such payment and
such gross-up so that the sum of the payment plus the gross-up, net of any federal, state, foreign
or local taxes thereon is equal to such payment.
3.04 Receipt of Payment by a Pass Through Entity. Any receipt of payment by a Pass
Through Entity of which a Holder is a Member shall be deemed a receipt by such Holder to the
extent of such Holder’s allocable interest in the income of such entity.
3.05 Entire Agreement. This Agreement supersedes all prior discussions and
agreements by or on behalf of the Indemnifying Parties and the Holders with respect to the
subject
matter hereof and contains the sole and entire agreement between the Indemnifying Parties and
the Holders with respect to the subject matter hereof.
3.06 Amendment. This Agreement may be amended, supplemented or modified by a
written instrument duly executed by the Indemnifying Parties; provided,
however, that no such
amendment, supplement or modification of this Agreement shall be binding upon or enforceable
against any Holder or Pass Through Entity for any purpose unless (and then only to the extent)
approved by such Holder or Pass Through Entity in writing. The Indemnifying Parties shall
promptly deliver to each Holder a copy of each amendment, supplement or modification of this
Agreement, together with a written explanation (in reasonable detail) of the nature and
purpose of
such amendment, supplement or modification and the effect which it has on the Holders.
3.07 Binding Effect. This Agreement is binding upon, inures to the benefit of and is
enforceable by the Indemnifying Parties and the Holders and their respective executors,
personal
representatives, administrators, successors, heirs, distributees, devisees, legatees and
assigns.
Each Indemnifying Party shall require any successor (whether direct, by purchase, merger,
consolidation or otherwise) to all or substantially all the business and/or assets of such
Indemnifying Party, by agreement in form and substance reasonably acceptable to the
Representatives, to expressly assume and agree to perform this Agreement in the same manner
and to the same extent that such Indemnifying Party would be required to perform this Agreement if
no such succession had taken place.
3.08 Third Party Beneficiaries. The terms and provisions of this Agreement are
intended solely for the benefit of the Indemnifying Parties and the Holders (and the Pass
Through
Entities of which they may be Members) and their respective executors, personal
representatives,
administrators, successors, heirs, distributees, devisees, legatees and assigns, and this
Agreement
shall not be construed to confer third-party beneficiary rights upon any other person.
3.09 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define, modify or limit the provisions hereof.
3.10 Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under any present or future law or order, and if the rights or obligations of
any party
hereto under this Agreement will not be materially and adversely affected thereby, such
provision
will be fully severable and the remaining provisions of this Agreement will remain in full
force and
effect and will not be affected by the illegal, invalid or unenforceable provisions.
3.11 Governing Law. This Agreement shall be governed by and constructed in
accordance with the laws of the State of Delaware applicable to a contract executed and
performed
in the State of Delaware, without giving effect to the conflicts of laws principles thereof.
3.12 Term. This Agreement shall remain in effect with respect to each Holder until 60
days after the later of the expiration of the statute of limitations (as extended) or the
final
settlement or adjudication of all Contests for which Notices of Issue were submitted prior to
the expiration of the statute of limitations, as extended.
3.13 Counterparts. This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will constitute one and
the same instrument.
3.14 No Right of Set Off. Anything herein or elsewhere to the contrary
notwithstanding,
the obligations of each Indemnifying Party to make payments under this Agreement and otherwise
to perform its obligations under this Agreement shall not be affected by any set off,
counterclaim,
recoupment, defense or other claim, right or action that such Indemnifying Party may have
against any person or entity.
3.15 Interest on Late Payments. All amounts due under this Agreement which are not
paid when due shall bear interest until paid at the Applicable Federal Rate plus 5%.
3.16 Joint and Several Liability. The obligations of the Indemnifying Parties under
this
Agreement are joint and several.
3.17 Reasonable Conduct. The Indemnifying Parties, and each Holder shall act in a
commercially reasonable manner in respect to all matters that are the subject of this
Agreement. Accordingly, the Indemnified Parties’ obligations to indemnify a Holder for costs, fees and
expenses pursuant to Section 2.01 shall be limited solely to those costs, fees and
expenses that are
commercially reasonable.
IN WITNESS WHEREOF, each Indemnifying Party has signed this Agreement as of the date
first above written.
| General Growth Properties, Inc. | ||||
| By: | /s/ Xxxxxx Xxxx | |||
| [Name] | Xxxxxx Xxxx | |||
| [Title] | Senior Vice President and General Counsel | |||
| The Xxxxx Company, LP | ||||
| By: Xxxxx LLC, its General Partner | ||||
| By: | /s/ Xxxxxx Xxxx | |||
| [Name] | Xxxxxx Xxxx | |||
| [Title] | Senior Vice President | |||
ACKNOWLEDGMENT AND AGREEMENT OF REPRESENTATIVES
The undersigned, acting in their capacities as Representatives under the CSA, hereby (i)
acknowledge that the form and substance of the foregoing Indemnity Agreement are acceptable to
them; (ii) relinquish and waive any and all rights they may have on behalf of the Holders under the
one sentence indemnity contained in Paragraph 2 of the GGP Assumption, dated on or about October
19, 2004 (the “One Sentence Indemnity”); (iii) agree that they will not assert any claims under or
otherwise seek to enforce the One Sentence Indemnity on behalf of any Holder; (iv) acknowledge that
they had pursued a claim on behalf of the Holders in the recent Arbitration challenging the One
Sentence Indemnity and that, following the Arbitration Panel’s November 8, 2005 Order, entered into
discussions with the Indemnifying Parties which, among other things, led to the foregoing Indemnity
Agreement; and (v) acknowledge that with the execution of the Indemnification Agreement and
pursuant to the Final Order of the Arbitration Panel, the Representatives no longer assert that the
Xxxxx/GGP merger constitutes a Prohibited Transaction.
| /s/ Xxxxx X. Xxxxxx | ||
| Xxxxx X. Xxxxxx, as Representative | ||
| /s/ Xxxxx X. Xxxxx III | ||
| Xxxxx X. Xxxxx III, as Representative | ||
| /s/ Xxxxx X. Xxxxxx | ||
| Xxxxx X. Xxxxxx, as Representative |
