EXHIBIT 10.1
March 3, 2002
General Growth Properties, Inc.
GGP Limited Partnership
GGP Acquisition, L.L.C.
GGP Acquisition II, L.L.C.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Re: JP Realty, Inc. and Price Development Company, Limited Partnership
Gentlemen:
Reference is made to the Agreement and Plan of Merger being executed
concurrently herewith (the "Merger Agreement") among JP Realty, Inc., a Maryland
corporation ("JP"), Price Development Company, Limited Partnership, a Maryland
limited partnership ("JP Partnership"), General Growth Properties, Inc., a
Delaware corporation ("General Growth"), GGP Limited Partnership, a Delaware
limited partnership ("GGP"), GGP Acquisition, L.L.C., a Delaware limited
liability company and a wholly-owned subsidiary of GGP ("Acquisition"), and GGP
Acquisition II, L.L.C., a Maryland limited liability company and a wholly-owned
subsidiary of GGP ("Partnership Acquisition"), pursuant to which Partnership
Acquisition will merge with and into JP Partnership, with JP Partnership being
the survivor, and JP will merge with and into Acquisition, with Acquisition
being the survivor. (Capitalized terms used herein without definition shall have
the meanings specified in the Merger Agreement.) Each of the undersigned
(collectively, the "Holders") is the Beneficial Owner (as defined in Section
4(h)) of the number and type of shares of capital stock of JP ("Shares") or
partnership interests in JP Partnership ("Partnership Interests" and
collectively with the Shares, "Equity Interests") set forth opposite such
Holder's name on Schedule I, and acknowledges that General Growth, GGP,
Acquisition and Partnership Acquisition are entering into the Merger Agreement
in reliance upon the execution and delivery of this letter agreement (the
"Agreement") by each of the Holders.
1. Voting Rights.
(a) Voting Agreement. During the Term, each Holder agrees to vote all
Equity Interests Beneficially Owned by it ("Owned Interests") on matters as
to which such Holder is entitled to vote at any annual or special meeting
of the Holders of the Company or partners of JP Partnership (including any
adjournments or postponements thereof), or by written consent without a
meeting, as follows: (i) in favor of approval and adoption of the Merger
Agreement, the Mergers, the JP Partnership Amendment and all related
matters; (ii) against any action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation or
agreement of JP or JP Partnership under the Merger Agreement or any
agreement contemplated thereby; and (iii) against any action or agreement
(other than the Merger Agreement or the transactions contemplated thereby)
that would impede, interfere with,
delay, postpone, adversely affect or attempt to discourage the Mergers, the
transactions contemplated by the Merger Agreement or this Agreement.
(b) Grant of Proxy. Each Holder hereby appoints GGP, with full power
of substitution (GGP and its substitutes being referred to herein as the
"Proxy"), as its attorney and proxy to vote, for the duration of the Term,
all of its Owned Interests on matters as to which such Holder is entitled
to (y) vote at a meeting of the Holders of JP or partners of JP Partnership
or (z) express consent or dissent to corporate or partnership action in
writing without a meeting, in each case, in the Proxy's absolute, sole and
binding discretion on the matters specified in Section 1(a) above. During
the Term, each Holder agrees that the Proxy may, in such Holder's name and
stead, (i) attend any annual or special meeting of the stockholders of JP
or partners of JP Partnership and vote all of such Holder's Owned Interests
at any such annual or special meeting as to the matters specified in
Section 1(a) above, and (ii) execute with respect to all of such Holder's
Owned Interests any written consent to, or dissent from, corporate or
partnership action respecting any matter specified in Section 1(a) above.
During the Term, each Holder agrees to refrain from (A) voting at any
annual or special meeting of the Holders of JP or partners of JP
Partnership, (B) executing any written consent in lieu of a meeting of the
Holders of JP or partners of JP Partnership, (C) exercising any rights of
dissent with respect to its Owned Interests, and (D) granting any proxy or
authorization to any person with respect to the voting of its Owned
Interests, in each case, regarding the matters specified in Section 1(a)
above, except pursuant to this Agreement, or taking any action contrary to
or in any manner inconsistent with the terms, or the purpose or intent, of
this Agreement. For the duration of the Term, each Holder agrees that this
grant of proxy is irrevocable and coupled with an interest and agrees that
the person designated as Proxy pursuant hereto may at any time name any
other person as its substituted Proxy to act pursuant hereto, either as to
a specific matter or as to all matters. Each Holder hereby revokes any
proxy previously granted by it with respect to its Owned Interests as to
the matters specified in Section 1(a) above. In discharging its powers
under this Agreement, the Proxy may rely upon advice of counsel to GGP, and
any vote made or action taken by the Proxy in reliance upon such advice of
counsel shall be deemed to have been made in good faith by the Proxy.
(c) Notice. During the Term, each Holder shall give notice to General
Growth and GGP at least three business days prior to the taking of any
action at an annual or special meeting of the stockholders of JP or
partners of JP Partnership or by written consent, whether or not the taking
of such action is governed by or subject to the provisions of Sections 1(a)
or 1(b) above.
2. Representations and Warranties of Holder. Each Holder represents and
warrants to General Growth and GGP that the following representations and
warranties are true and correct in all respects as of the date hereof, and will
be and remain true in all respects through and as of the Closing Date, and that:
(a) Ownership. Such Holder Beneficially Owns, and has the sole right
to vote and dispose of the number and type of Owned Interests set forth
opposite such Holder's name on Schedule I hereto. Such Holder has good,
valid and, subject to the restrictions set forth in the JP Partnership
Agreement with respect to Partnership Interests, marketable title to such
Owned
-2-
Interests. Such Holder and its Affiliates (other than JP and JP
Partnership) do not Beneficially Own any other Equity Interests.
(b) Due Authorization, etc. Such Holder has the legal capacity and
full power and authority (including full corporate, partnership, trust,
limited liability company or other power and authority, as the case may be)
to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly authorized by all necessary
corporate, partnership, trust, limited liability company or other action,
as the case may be, on the part of such Holder and has been duly executed
and delivered by such Holder. This Agreement constitutes the valid and
legally binding obligation of such Holder, enforceable against such Holder
in accordance with its terms.
(c) No Restrictions on Equity Interests.
(i) There are no restrictions on such Holder's voting rights
pertaining to its Owned Interests. Such Holder Beneficially Owns its
Owned Interests and such Owned Interests are, or will at Closing be,
free and clear of any liens, charges, claims, pledges, security
interests, mortgages, encumbrances or restrictions of any nature
whatsoever (including, without limitation, any conditional sale or
other title retention agreement having substantially the same economic
effect as any of the foregoing) (any of the foregoing, a "Lien").
(ii) Except as provided in the JP Articles or JP Partnership
Agreement or existing pledge agreements, there are no commitments,
options, contracts or other arrangements under which such Holder is or
may become obligated to sell, transfer or otherwise dispose of its
Owned Interests.
(d) No Conflicts. None of the execution and delivery of this Agreement
by such Holder, the compliance by such Holder with all of the provisions of
this Agreement or the consummation by such Holder of the transactions
herein contemplated will conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of a Lien upon any of such Holder's
Owned Interests, pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such Holder
is a party or by which such Holder is bound or to which any properties or
assets of such Holder are subject, nor will such action result in any
violation of the provisions of the governing instrument (including, without
limitation, any trust agreement) of such Holder or any statute or any
order, rule or regulation of any Governmental Entity having jurisdiction
over such Holder or any of its properties or assets.
(e) Consents/Approvals. Subject to any required filings under the
Exchange Act, such Holder is not required to give any notice or make any
report or other filing with any Governmental Entity in connection with the
execution or delivery of this Agreement or the performance of such Holder's
obligations hereunder, and no consent, approval, authorization, order,
registration or qualification of or with any Governmental Entity or other
person is required in order for such Holder to execute and deliver this
Agreement, comply with all of the provisions of this Agreement and
consummate the transactions contemplated by this Agreement.
-3-
3. No Transfer.
(a) During the Term, each Holder agrees that it shall not, directly or
indirectly:
(i) sell, exchange or otherwise dispose of or enter into any
contract, agreement or other arrangement to sell, exchange or
otherwise dispose of any of its Owned Interests or any securities
received or to be received by such Holder in respect thereof or in
exchange therefor;
(ii) create or suffer to exist any Lien (other than Liens
existing on the date hereof) with respect to any of its Owned
Interests or any securities received or to be received by such Holder
in respect thereof or in exchange therefor;
(iii) grant any options, rights or warrants or enter into any
contracts, agreements or other arrangements to grant any options,
rights or warrants with respect to any of its Owned Interests or any
securities received or to be received by such Holder in respect
thereof or in exchange therefor;
(iv) grant any proxies or powers of attorney with respect to any
Owned Interests regarding any matters specified in Section 1(a),
deposit any Owned Interests into a voting trust, enter into a voting
agreement with respect to any Owned Interests or tender any Owned
Interests in a transaction other than a transaction contemplated by
the Merger Agreement; or
(v) take any action which is intended to have the effect of
preventing or disabling such Holder from performing its obligations
under this Agreement.
(b) During the Term, each Holder agrees on behalf of itself and its
officers, directors, employees, Affiliates, bankers, financial advisors,
attorneys, accountants, brokers, finders, consultants or other
representatives (collectively "Representatives") to be bound by the
provisions of Sections 4.2(a) and (b) of the Merger Agreement as though it
were a party thereto. The foregoing shall, as applicable, not restrict a
Holder or its representatives on the Board of Directors of JP from taking
actions to the same extent and in the same circumstances permitted for the
Board of Directors of JP by the terms of the Merger Agreement.
4. Miscellaneous.
(a) Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, sent by overnight courier (providing proof
of delivery) or sent by telecopy (providing confirmation of transmission to
the parties), postage prepaid to the parties at the following addresses or
telecopy numbers (or at such other addresses or telecopy number as shall be
specified by like notice):
-4-
(i) If to General Growth, GGP, Acquisition
or Partnership Acquisition:
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxxxxx
with a copy to:
Xxxx, Xxxxxx & Xxxxxxxxx
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
(ii) If to a Holder, to the address noted on Schedule I
hereto.
(b) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The parties have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue
of the authorship of any of the provisions of this Agreement.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other party.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the Merger Agreement and the other agreements entered into in
connection with the Merger) (a) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter of this Agreement and
(b) is not intended to confer upon any person other than the parties hereto
any rights or remedies.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, REGARDLESS OF THE
LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF
LAWS THEREOF. By the execution and delivery of this Agreement, each Holder
appoints CSC - Lawyers Incorporating Service Company, 00 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, as its agent upon which process
-5-
may be served in any legal action or proceeding. Service of process upon
such agent in the manner specified in Section 4(a) shall be deemed in every
respect effective service of process upon such Holder in any legal action
or proceeding.
(f) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or
delegated, in whole or in part, by operation of law or otherwise by any of
the parties without the prior written consent of the other parties.
Notwithstanding the foregoing, Acquisition and Partnership Acquisition may
assign, in their sole discretion, any of or all their respective rights,
interests and obligations under this Agreement to any direct or indirect
wholly owned subsidiary of General Growth and GGP with written notice to
the Holders, but no such assignment shall relieve General Growth and GGP of
any of its obligations hereunder. Subject to the preceding sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable
by, the parties and their respective heirs, beneficiaries, remaindermen,
personal representatives, executors, administrators, fiduciaries,
successors and permitted assigns.
(g) Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that General Growth, GGP, Acquisition
and Partnership Acquisition shall be entitled to an injunction or
injunctions (without any requirement for posting bond) to prevent breaches
of this Agreement and to enforce specifically the terms and provisions of
this Agreement in any federal court located in Maryland or, to the extent
such courts do not have subject matter jurisdiction, in any state court
located in Maryland this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties
hereto (a) consents to submit itself (without making such submission
exclusive) to the personal jurisdiction of any federal court located in
Maryland or, to the extent such courts do not have subject matter
jurisdiction, any state court located in Maryland in the event any dispute
arises out of this Agreement or any of the transactions contemplated by
this Agreement and (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any
such court.
(h) Certain Definitions. Unless the context otherwise requires, the
following terms shall have the following respective meanings:
(i) "Beneficial Owner" has the meaning set forth in Rule 13d-3(a)
and (b) of the Rules and Regulations to the Exchange Act, and
"Beneficially Owned" shall have a correlative meaning.
(ii) "person" means a corporation, association, partnership,
joint venture, organization, business, individual, trust, estate or
any other entity or Group (within the meaning of Section 13(d)(3) of
the Exchange Act).
(i) Changes in Capital Structure. In the event of any stock split,
stock dividend, combination, merger, reorganization, recapitalization or
other change in the capital structure of JP affecting the Shares or the
acquisition or receipt of additional Shares or other securities or rights
of JP or any other person by a Holder upon conversion or exercise of any
other securities or otherwise, the number of Shares shall be adjusted
appropriately, and this
-6-
Agreement and the obligations hereunder shall attach to any additional
Shares or other securities or rights of JP or any other person issued to or
acquired by such Holder. Comparable adjustments shall be made with respect
to Partnership Interests, and this Agreement and the obligations hereunder
shall attach to any additional Partnership Interests or other securities or
rights of JP Partnership or any other person issued to or acquired by a
Holder.
(j) Term. The term (the "Term") of this Agreement shall commence on
the date hereof and terminate on the earlier to occur of (i) the
termination of the Merger Agreement in accordance with its terms and (ii)
consummation of the Mergers.
(k) Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
(l) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FOR ITSELF AND
FOR THE THIRD PARTY BENEFICIARIES HEREUNDER, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(m) Time of Essence. Time is of the essence of each and every
provision of this Agreement.
(n) Other Provisions. Each Holder agrees to execute all additional
writings, consents and authorizations as may be reasonably requested by
General Growth, GGP, Acquisition or Partnership Acquisition to evidence the
agreements herein. The representations, warranties and covenants of the
parties contained herein shall survive the Closing. No Holder shall issue
any press release or make any public announcement which addresses in any
manner the transactions contemplated by this Agreement nor permit any of
its Representatives to do the same without the prior written approval of
General Growth, GGP, Acquisition and Partnership Acquisition, except as may
be required by applicable Law, court process or by any listing obligations
pursuant to any listing agreement with any national securities exchange (in
which case the disclosing party will use its commercially reasonable
efforts to advise the other parties prior to making the disclosure).
-7-
Please indicate your agreement with the foregoing by signing a copy of this
Agreement in the space indicated below.
Very truly yours,
FAIRFAX HOLDING, L.L.C.
By: /s/ Xxxx Xxxxx
---------------------------
Xxxx Xxxxx
By: JPET II Company, Limited Partnership,
a Utah limited partnership
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
By: Fairfax Realty, Inc., a Utah corporation
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, President
BOISE MALL INVESTMENT COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
CACHE VALLEY PARTNERSHIP
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
-8-
NORTH PLAINS DEVELOPMENT COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
NORTH PLAINS LAND COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PINE RIDGE DEVELOPMENT COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PINE RIDGE LAND COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
-9-
PRICE 800 COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
JPET II Company, Limited Partnership,
a Utah limited partnership,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PRICE COMMERCE
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PRICE EAST BAY COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
-10-
PRICE XXXXXX XXXXXX COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PRICE FREMONT COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PRICE GLENDALE COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
-11-
PRICE OREM INVESTMENT COMPANY
By: /s/ Xxxx Xxxxx
---------------------------
Xxxx Xxxxx, General Partner
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PRICE PLAZA 800 COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PRICE RIVERSIDE COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
-12-
PRICE ROCK SPRINGS COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
PRICE TAYWIN COMPANY
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
RED CLIFFS MALL INVESMENT COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
TECH PARK II COMPANY
Fairfax Holding, L.L.C. ,
a Utah limited liability company,
its general partner
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, General Partner
-13-
Xxxx Xxxxx
By: /s/ Xxxx Xxxxx
---------------------------
Xxxx Xxxxx
-14-
ACCEPTED AS OF THE DATE
FIRST ABOVE WRITTEN.
GENERAL GROWTH PROPERTIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
GGP LIMITED PARTNERSHIP
By: GENERAL GROWTH PROPERTIES,
INC., General Partner
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
GGP ACQUISITION, L.L.C.
By: GGP LIMITED PARTNERSHIP,
Member
By: GENERAL GROWTH PROPERTIES,
INC., General Partner
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
GGP ACQUISITION II, L.L.C.
By: GGP LIMITED PARTNERSHIP,
Member
By: GENERAL GROWTH PROPERTIES,
INC., General Partner
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
-15-
