AGREEMENT
EXHIBIT 10(b)
This Agreement (this
“Agreement”), dated as of July 19, 2002, is made by and among Overseas Capital Co., a Delaware corporation, having an address at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (“Overseas”) and Xxxxxx Place Corp., Inc.,
a Delaware corporation, having an address at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (“Xxxxxx”, collectively with Overseas, hereinafter referred to as “Seller”), and Simon Property Group, L.P. a Delaware limited
partnership, having an address at National City Center, P. O. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000 (“Purchaser”).
ARTICLE I
1.1 The LLC. Xxxxxx Place Associates, LLC (the “LLC”) is a Delaware limited liability company created pursuant to that certain “Second Amended and Restated
Limited Liability Company Agreement of Xxxxxx Associates, LLC, dated July 30, 1997 (as amended by that certain First Amendment to Second Amended and Restated Limited Liability Company Agreement dated August 1, 1997, and as further amended by that
certain letter agreement dated November 28, 2001; as so amended, the “LLC Agreement”), among Overseas, Xxxxxx and Urban Shopping Centers, L.P., an Illinois limited partnership (“Urban”).
1.3 Seller’s LLC Interest. Overseas is the owner of a 65 2/3% “Percentage Interest” (as defined in the LLC Agreement) in the LLC and Xxxxxx is the owner of a 1% “Percentage Interest” in the LLC. Overseas’
Percentage Interest, Xxxxxx’x Percentage Interest, Overseas’ Capital Account (as defined in the LLC Agreement), Xxxxxx’x Capital Account, together with all of Seller’s right, title and interest in, to and under the LLC Agreement
is hereinafter collectively referred to as the “Seller’s LLC Interest”.
ARTICLE II
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
ARTICLE V
ARTICLE VI
and the right to all fees with respect to the period accruing from and after the Closing Date, which fees based on rent under the Leases shall be apportioned in a manner consistent with Article
IX hereof.
ARTICLE VII
brokerage commissions due to GS. Seller agrees to indemnify and hold Purchaser harmless from and against all loss, liability or expense (including, without limitation, reasonable attorneys’
fees and disbursements) arising out of any claim or claims by GS and any other investment banker, advisor, broker, finder or similar agent for commissions, fees or other compensation in connection with this transaction, which claims are based on
dealings between Seller and such other investment banker, advisor, broker, finder or similar agent. Purchaser agrees to indemnify and hold Seller harmless from and against all loss, liability or expenses (including, without limitation, reasonable
attorneys fees and disbursements) arising out of any claim or claims by any investment banker, advisor, broker, finder or similar agent (excluding GS) for commissions, fees or other compensation in connection with this transaction, which claims are
based on dealings between Purchaser and such other investment banker, advisor, broker, finder or similar agent. This Section shall survive the Closing or any termination of this Agreement.
ARTICLE VIII
ARTICLE IX
items of income and expenses prorated or adjusted hereunder for periods on or before the Proration Time, and Purchaser shall bear 66 2/3% of the amount debited hereunder, and shall receive 66 2/3% of the amounts credited hereunder for the items of income and expense prorated or adjusted hereunder for periods after the Prorations Time.
prepaid Rents and charges as of the Closing for the period following the Closing shall be deducted from the Purchase Price. Rents in the nature of percentage rents for all Leases for the current
lease year under each Lease shall be apportioned between Seller and Purchaser as follows: The Schedule of Rents (which shall be delivered by Purchaser to Seller with the closing statement) shall include budgeted percentage rents for all Leases for
the current lease year under each Lease, which budgeted amounts shall be apportioned between Seller and Purchaser at the Closing in accordance herewith. Seller shall receive as an addition to the Purchaser Price, calculated on a Lease by Lease
basis, 66 2/3% of a fraction of the percentage rent for the current lease year for each Lease which includes the
Prorations Time under the particular Lease, the numerator of which fraction equals the number of Lease year days through the Prorations Time and the denominator of which fraction equals 365. If and to the extent payments on account of percentage
rent under any Lease have been paid prior to the Prorations Time and/or have been the subject of apportionments based on budgeted amounts in the Schedule of Rents, then Seller shall be entitled to an addition to the Purchase Price equal to 66 2/3% of the amount by which such fractions of the percentage rent finally ascertained exceeds such prepaid and/or
budgeted amount or Purchaser shall be entitled to a rebate or reduction in the Purchase Price equal to 66 2/3% of
the amount by which such fraction of the percentage rent finally ascertained is less than such prepaid and/or budgeted amount, all to the end that when percentage rents are finally ascertained under the Leases the correct amounts shall be credited
to each of the parties hereunder.
ARTICLE X
ARTICLE XI
11.1.1 subject to Articles 12 and 13, any loss, liabilities, costs or
expenses suffered or incurred by Purchaser because any representation or warranty made by Seller in this Agreement, or in any documents furnished by Seller to the Purchaser in connection with the transactions contemplated in this Agreement, shall be
materially false or untrue; provided, however, only to the extent the same is discovered by Purchaser after the Closing;
11.1.2 any loss, liabilities, costs or expenses suffered or incurred by Purchaser or any of its Affiliates in respect of that certain Guaranty Agreement, dated as of July 30, 1997 (the “Recourse
Carve-Out Guaranty”), entered into by Overseas Partners Capital
Corp. in favor of Metropolitan Life Insurance Company with respect to the loan secured by a mortgage on the Property, in each case, only to the extent the same (a) resulted from any act or
omission of Seller or its Affiliates and (b) arose or accrued prior to the Closing Date;
11.1.3 any claims, liabilities, costs and expenses arising on account of any items which are prorated or credited hereunder and which claims, liabilities, costs or expenses accrue or which are based on events
which occurred prior to the Prorations Time; and
11.1.4 all reasonable
costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by the Purchaser in connection with any action, suit, proceeding, demand, assessment or judgment instituted by a third party or by the
Purchaser against Seller or a third party incident to any of the matters indemnified against in this subsection.
11.2.1 subject to Articles 12 and 13, any loss, liabilities, costs or expenses suffered or incurred by Seller because any
representation or warranty made by the Purchaser in this Agreement or in any document furnished by Purchaser to the Seller in connection with the transactions contemplated in this Agreement, shall be materially false or untrue; provided, however,
only to the extent the same is discovered by Seller after the Closing;
11.2.2 any loss, liabilities, costs or expenses suffered or incurred by Seller or any of its Affiliates in respect of the Recourse Carve-Out Guaranty, in each case, only to the extent the same arises and
accrues from and after the Closing Date;
11.2.3 any claims, liabilities,
costs or expenses arising on account of any items which are prorated or credited hereunder and which claims, liabilities accrue or which are based on events which occurred on or after the Prorations Time; and
11.2.4 all reasonable costs and expenses (including, without limitation, reasonable attorneys’
fees and disbursements) incurred by the Seller in connection with any action, suit, proceeding, demand, assessment or judgment instituted by a third party or by the Seller against a third party incident to any of the matter indemnified against in
this subsection
ARTICLE XII
ARTICLE XIII
otherwise and/or affecting the LLC or Seller’s interest therein or the amount of the Purchase Price payable to Seller hereunder.
13.1.12 Bankruptcy Search
Results. Seller is not, directly or indirectly, related to, controlled by or under common control with (or has an interest in) Overseas Capital Corporation d/b/a American’s Harvest Restaurant and Lounge and/or
Overseas Capital Corp. d/b/a America’s Harvest Restaurant and Lounge and none of such entities has an interest in Seller. In addition, none of bankruptcy petitions (i) numbered 92-42089 by Overseas Capital Corporation d/b/a American’s
Harvest Restaurant and Lounge, as debtor, (ii) numbered 93-17611 by Overseas Capital Corporation d/b/a American’s Harvest Restaurant and Lounge, as debtor and/or (iii) numbered 93-2034 by Overseas Capital Corp. d/b/a America’s Harvest
Restaurant and Lounge are in any way related to or effect Seller.
ARTICLE XIV
ARTICLE XV
ARTICLE XVI
All notices, demands or other
communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon the receipt by facsimile transmission as evidenced by receipt transmission report, or upon the delivery by overnight express delivery service or
by hand or three (3) business days after mailing by certified mail postage prepaid, return receipt requested, addressed as follows:
If to Purchaser, to:
Simon Property Group, L.P.
Xxxxxxxx Xxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
If to Seller, to:
Overseas Capital Co.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxx Place Corp., Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Cumberland House
One Victoria Street
Xxxxxxxx XX 11
Bermuda
Attention: Xxxx X. Xxxxxxx
Phone:
(000) 000-0000
Fax: (000) 000-0000
and:
Hill & Xxxxxx, a Professional Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address or to such
other person as any party shall designate to the others for such purpose in the manner hereinabove set forth.
ARTICLE
XVII
17.6 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of New York.
“Affiliate” as used with respect to Seller or any other Person
(other than Purchaser), shall mean any Person controlled, controlled by or under common control with Seller. The term “control” and the correlative terms controlled, controlled by and under common control with shall mean the power to
direct the management and policies of such Person.
“Affiliate” as used with respect to Purchaser, shall
mean any Person or entity directly or indirectly controlling, controlled by or under common control with Purchaser.
“business day” shall mean any day other than a Saturday, Sunday or other day on which commercial banks are permitted or required to be closed in the Commonwealth of Massachusetts.
“Closing Date” shall mean the date on which the Closing occurs as provided in Section 8.1.
“Governmental Authority” means any agency, bureau, commission, court,
department, official political subdivision, tribunal or other instrumentality of any government whether federal, state, local, domestic or foreign.
“Leases” shall mean any lease, subleases or occupancy agreements affecting the Property
“Laws” shall mean any applicable law, rule, regulation (including, without limitation, the Americans with Disabilities Act) or municipal ordinances, orders or requirements that have been
noted in or issued by any federal, state or municipal department with competent jurisdiction.
“Person”
shall mean an association, corporation, stock company, estate, general partnership (including any Registered Limited Liability Partnership or Foreign Limited Liability Partnership), limited association, limited liability company, foreign limited
liability company, joint venture, limited partnership, natural person, real estate investment trust, business trust or other trust, custodian, nominee or other individual in its own or any representative capacity. In addition, the term means the
heirs, executors, administrators, legal representatives, successors and assigns of that “Person” where the context so permits.
“Tenant” shall mean any tenant pursuant to a Lease.
[Signature pages follow.]
SELLERS:
OVERSEAS CAPITAL CO. | ||
By: |
/S/ XXXX X XXXXXXX | |
Name: Xxxx X. Xxxxxxx Title: Director |
By: |
/S/ XXXXX X. XXXXX | |
Name: Xxxxx X. Xxxxx Title: Vice President, Real Estate
|
XXXXXX PLACE CORP., INC. | ||
By: |
/S/ XXXX X. XXXXXXX | |
Name: Xxxx X. Xxxxxxx Title: Director |
By: |
/S/ XXXXX X. XXXXX | |
Name: Xxxxx X. Xxxxx Title: Vice President, Real Estate
|
[Signatures continued on next page.]
PURCHASER:
SIMON PROPERTY GROUP, L.P. | ||
By: |
Simon Property Group, Inc. its general
partner | |
By: |
/S/ XXXXXXX X. XXXXXXX | |
Name: Xxxxxxx X. Xxxxxxx Title: President |
AGREEMENT
AMONG
OVERSEAS CAPITAL CO.
and
XXXXXX PLACE CORP., INC.
(COLLECTIVELY, SELLER)
AND
SIMON PROPERTY GROUP, L.P.
(PURCHASER)
TABLE OF CONTENTS
Section |
Page | |
ARTICLE I |
||
1.1 The LLC |
1 | |
1.2 Real Property and Personal Property |
1 | |
1.3 Seller’s LLC Interest |
1 | |
1.4 Purchaser’s LLC Interest |
2 | |
1.5 Purchase and Sale |
2 | |
ARTICLE II |
||
2.1 Purchase Price |
2 | |
2.2 No Unintended Assumption of Liabilities |
2 | |
ARTICLE III |
||
INTENTIONALLY OMITTED |
||
ARTICLE IV |
||
ARTICLE V |
||
5.1 Deliveries |
3 | |
5.1.1 Purchase Price |
3 | |
5.1.2 Assignment of Seller’s LLC Interest |
3 | |
5.1.3 Organizational Documents, Etc. |
3 | |
5.1.4 Required Items |
3 | |
5.1.5 Opinion |
3 | |
ARTICLE VI |
||
6.1 Delivery of Instruments and Documents |
3 | |
6.1.1 Assignment of Seller’s LLC Interest |
3 | |
6.1.2 Organizational Documents, Etc. |
4 | |
6.1.3 Closing Certificate |
4 |
6.1.4 Opinion |
4 | |
6.1.5 Property Specific Documents |
4 | |
6.1.6 Required Items |
4 | |
ARTICLE VII |
||
7.1 Brokers and Advisors |
4 | |
ARTICLE VIII |
||
THE CLOSING |
||
8.1 Date and Manner of Closing |
5 | |
ARTICLE IX |
||
PRORATION, FEES, COSTS AND ADJUSTMENTS |
||
9.1 Prorations |
5 | |
9.1.1 Leasing Costs |
6 | |
9.1.2 Net Equity Adjustment |
6 | |
9.1.3 Rent |
6 | |
9.1.4 Closing Statement |
7 | |
9.2 Seller’s Closing Costs |
7 | |
9.3 Purchaser’s Closing Costs |
8 | |
9.4 Treatment of Transaction for Tax Purposes |
8 | |
ARTICLE X |
||
INTENTIONALLY OMITTED |
||
ARTICLE XI |
||
11.1 Indemnification by Seller |
8 | |
11.2 Indemnification by Purchaser |
9 | |
11.3 Procedure for obtaining Indemnification |
9 | |
11.4 Survival |
10 |
ARTICLE XII |
||
ARTICLE XIII |
||
13.1 Seller’s Warranties and Representations
|
10 | |
13.1.1 Power and Authority |
10 | |
13.1.2 No Conflict With Agreements |
10 | |
13.1.3 Consents |
10 | |
13.1.4 Contravention |
10 | |
13.1.5 Non-Foreign Person |
11 | |
13.1.6 LLC Taxes |
11 | |
13.1.7 Pending Actions |
11 | |
13.1.8 Seller LLC Interest |
11 | |
13.1.9 Preferred Returns |
11 | |
13.1.10 LLC Defaults |
12 | |
13.1.11 Transfer of all of Seller’s Interest |
12 | |
13.1.12 Bankruptcy Search Results |
12 | |
13.2 Purchaser’s Warranties and Representations
|
12 | |
13.2.1 Power and Authority |
13 | |
13.2.2 Execution and Delivery |
13 | |
13.2.3 Independent Investigation |
13 | |
13.3 No Other Warranties and Representations |
13 | |
ARTICLE XIV |
||
INTENTIONALLY DELETED |
||
ARTICLE XV |
||
ARTICLE XVI |
||
NOTICES |
||
ARTICLE XVII |
||
17.1 Captions |
15 | |
17.2 Exhibits |
15 | |
17.3 Entire Agreement |
15 | |
17.4 Modification |
16 |
17.5 Attorneys’ Fees |
16 | |
17.6 Governing Law |
16 | |
17.7 Time of Essence |
16 | |
17.8 Survival of Warranties |
16 | |
17.9 Assignment by Purchaser |
16 | |
17.10 Intentionally Omitted |
17 | |
17.11 Severability |
17 | |
17.12 Successors and Assigns |
17 | |
17.13 Interpretation |
17 | |
17.14 Counterparts |
17 | |
17.15 Recordation |
17 | |
17.16 Intentionally Omitted |
17 | |
17.17 WAIVER OF JURY TRIAL |
17 | |
17.18 Further Assurances |
18 | |
17.19 Non-Waiver of Rights |
18 | |
17.20 Confidentiality |
18 | |
17.21 Certain Definitions |
18 |
EXHIBITS
EXHIBIT |
A Assignment and Assumption of Limited Liability Company Interest |
EXHIBIT |
B Assignment and Assumption of Management Agreements |
EXHIBIT |
C Prorations Statement |
EXHIBIT |
D LLC Defaults |
EXHIBIT A
Assignment And Assumption Of Limited Liability Company Interest
This Assignment and Assumption of Limited Liability Company Interest, dated as of July 19, 2002 (this
“Assignment”), is entered into by and among Overseas Capital Co., a Delaware corporation, having an address at 0000 Xxxxxxx Xxxxx, Xxxxx 00, Xxxxxxxxxx, Xxxxxxx 00000 (“Overseas”) and Xxxxxx Place Corp., Inc., a
Delaware corporation, having an address at 0000 Xxxxxxx Xxxxx, Xxxxx 00, Xxxxxxxxxx, Xxxxxxx 00000, (“Xxxxxx”, collectively with Overseas, hereinafter referred to as “Assignor”), as assignor, and SPG Xxxxxx
Associates, LLC, a Delaware limited liability company (“SPG Xxxxxx”), having an address at Xxxxxxxx Xxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000 and Xxxxx Xxxxxx Place, Inc., a Delaware corporation (“Xxxxx
Xxxxxx”, collectively with SPG Xxxxxx, “Assignee”), having an address at Xxxxxxxx Xxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000, as assignee.
RECITALS:
A. Overseas
holds a 65 2/3% managing member interest (the “Overseas Interest”) in Xxxxxx Place Associates, LLC, a limited liability company (the “Company”) organized under the laws of the State of Delaware and existing pursuant
to the Second Amended and Restated Limited Liability Company Agreement of Xxxxxx Place Associates, LLC dated July 30, 1997 (as amended by that certain First Amendment to Second Amended and Restated Limited Liability Company Agreement dated August 1,
1997, the “LLC Agreement”);
X. Xxxxxx holds a 1% member interest (the
“Xxxxxx Interest”, together with the Overseas Interest, the “Interest”) in the Company;
C. Pursuant to that certain Agreement, dated as of July 19, 2002 (the “Agreement”) by and among Overseas, Xxxxxx and each Assignee (by assignment from Simon Property Group, L.P.), Overseas will
assign, transfer and convey all of its right, title and interest in and to the Company, including, without limitation, the Overseas Interest, to SPG Xxxxxx, Xxxxxx will assign, transfer and convey all of its right, title and interest in and to the
Company, including, without limitation, the Xxxxxx Interest, to Xxxxx Xxxxxx and each Assignee will assume each Assignor’s right, title and interest in and to the Company being so assigned, including, without limitation, the Overseas Interest
and the Xxxxxx Interest, respectively; and
D. Capitalized terms used but not defined in
this Assignment shall have the meanings ascribed thereto in the Agreement.
1. |
Assignment and Assumption. Overseas hereby assigns, transfers and conveys all of its’ interest in the Company, including,
without limitation, the Overseas Interest, and all of its right in its capital account in the Company, to SPG Xxxxxx and SPG Xxxxxx hereby accepts and assumes all of Overseas’ interest in the Company, including, without limitation, the Overseas
Interest, and will be bound by and hereby accepts and adopts all of the terms, provisions and conditions of the LLC Agreement as the managing member from and after the date of this |
Assignment. Xxxxxx hereby assigns, transfers and conveys all of its’ interest in the Company, including, without limitation, the Xxxxxx Interest, and all of its right in its capital account
in the Company, to Xxxxx Xxxxxx and Xxxxx Xxxxxx hereby accepts and assumes all of Xxxxxx’x interest in the Company, including, without limitation, the Xxxxxx Interest, and will be bound by and hereby accepts and adopts all of the terms,
provisions and conditions of the LLC Agreement as the member from and after the date of this Assignment. |
2. |
Admission. Each of the signatories hereto acknowledges and agrees that contemporaneously with the assignment described in
paragraph 1 above, each Assignee shall be admitted to the Company as the managing member and member, as applicable. |
3. |
Withdrawal. Immediately following the admission of each Assignee to the Company in respect of its Interest, each Assignor hereby
withdraws from the Company as a managing member and/or member, as a applicable. |
4. |
Continuation of the Company. The parties hereto agree that the assignment of the Interests, the admission of each Assignee to the
Company and the withdrawal of each Assignor from the Company shall not dissolve the Company, and that the business of the Company shall continue. |
5. |
Binding Effect. This Assignment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective
permitted successors and assigns. |
6. |
Execution in Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument. |
7. |
Governing Law. This Assignment shall be governed by, and interpreted in accordance with, the laws of the Commonwealth of
Massachusetts. |
8. |
Estoppel and Release. Each of Urban Shopping Centers, L.P. and each Assignor hereby agrees with each other as follows: (a) there
are no pending claims against the other under the LLC Agreement, (b) to its knowledge, there are no defaults by the other under the LLC Agreement and (c) each member of the Company is hereby released by the other from any and all claims and
liabilities except for those matters which, by the express terms of the LLC Agreement, survive a transfer of an interest in the Company by a member. |
9. |
Reciprocal Indemnity. (a) Assignor agrees to indemnify, hold harmless and defend Assignee from and against any loss, liabilities,
costs or expenses suffered or incurred by Assignee or any of its Affiliates in respect of that certain Guaranty Agreement, dated as of July 30, 1997 (the “Recourse Carve-Out Guaranty”), entered into by Overseas Partners Capital
Corp. in favor of Metropolitan Life Insurance Company with respect to the loan secured by a mortgage on the Property, in each case, only to the extent the same (a) resulted from any act or |
2
omission of Assignor or its Affiliates and (b) arose or accrued prior to the Closing Date. |
(b) Assignee agrees to indemnify, hold harmless and defend Assignor from and against any loss, liabilities, costs or expenses suffered or incurred by Assignor or any of
its Affiliates in respect of the Recourse Carve-Out Guaranty, in each case, only to the extent the same arises and accrues from and after the Closing Date.
10. |
Counterparts. This Assignment may be executed in any number of counterparts, each of which so executed shall be deemed original;
such counterparts shall together constitute but one assignment. Faxed signature pages shall have the same legal effect as an original signature page. |
[The remainder of this page is intentionally left blank.]
3
ASSIGNOR:
OVERSEAS CAPITAL CO. | ||
By: |
/s/ XXXX X. XXXXXXX | |
Name: Xxxx X. Xxxxxxx | ||
Title: Director |
By: |
/s/ XXXXX X. XXXXX | |
Name: Xxxxx X. Xxxxx | ||
Title: Vice-President, Real Estate |
XXXXXX PLACE CORP., INC. | ||
By: |
/s/ XXXX X. XXXXXXX | |
Name: Xxxx X. Xxxxxxx | ||
Title: Director |
By: |
/s/ XXXXX X. XXXXX | |
Name: Xxxxx X. Xxxxx | ||
Title: Vice-President, Real Estate |
ASSIGNEE:
SPG XXXXXX ASSOCIATES, LLC | ||
By: |
Simon Property Group, L.P., its sole member | |
By: |
Simon Property Group, Inc., its general partner |
By: |
/s/ XXXXXXX X. XXXXXXX | |
Name: Xxxxxxx X. Xxxxxxx | ||
Title: President |
XXXXX XXXXXX PLACE, INC. | ||
By: |
/s/ Xxxxxxx X. Xxxxxxx | |
Name: Xxxxxxx X. Xxxxxxx | ||
Title: President |
4
Urban Shopping Centers, L.P., as a member of the Company, hereby executes this
Assignment for the purpose of (i) consenting to the transaction set forth herein, the admission of Assignee to the Company, and the withdrawal of each Assignor from the Company, and (ii) agreeing to the provisions of Paragraph 8 hereof.
URBAN SHOPPING CENTERS, L.P. | ||
By: |
Urban Shopping Centers, Inc., its general partner |
By: |
/s/ XXXXXXX X. XXXXXXX | |
Name: Xxxxxxx X. Xxxxxxx | ||
Title: President |
5
EXHIBIT B
Assignment And Assumption Of Management Agreements
1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Overseas
Management, Inc. (“Assignor”) hereby irrevocably assigns, transfers and sets over to Simon Management Associates, LLC, a Delaware limited liability Company (“Assignee”) all of Assignor’s right, title and
interest in and to:
(i) |
(a) that certain Management Agreement dated January 23, 1997 between Xxxxxx Place Associates, LLC and Assignor, (b) that certain First Amendment to Management
Agreement dated May 1, 1998, (c) that certain Letter Agreement dated November 28, 2001 among Assignor, Xxxxxx Place Associates, LLC, Xxxxxx Place Corp., Inc., Urban Retail Properties Co. and Overseas Partners Capital Corp. (the “Letter
Agreement”) and (d) any and all other modifications, amendments, extensions or supplements thereto ((a) through (d) collectively, the “Management Agreement”); |
(ii) |
(a) that certain Agreement for Purchase of Consulting and Other Services dated January 23, 1997 between Assignor and Urban Retail Properties Co., (b) the Letter
Agreement and (c) any and all modifications, amendments, extensions or supplements thereto ((a) through (c) collectively, the “Consulting Agreement”); |
(iii) |
(a) that certain Parking Management Agreement dated May 1, 1998 between Standard Parking Corporation and Assignor and (b) any and all modifications, amendments,
extensions or supplements thereto ((a) and (b) collectively, the “Parking Management Agreement”); and |
(iv) |
(a) that certain Agreement for Purchase of Consulting and Other Services with respect to the Parking Management Agreement dated May 1, 1998 between Assignor and
Urban Retail Properties Co. and (b) any and all modifications, amendments, extensions or supplements thereto ((a) and (b) collectively, the “Parking Consulting Agreement”, the Management Agreement, Consulting Agreement, Parking
Management Agreement and Parking Consulting Agreement collectively, the “Agreements”). |
2. Assignee hereby assumes all of Assignor’s obligations in connection with the Agreements arising or first becoming due and payable after the date hereof and hereby being assigned by Assignor.
3. Assignor hereby represents and warrants only that it has not previously transferred or
encumbered any of the Agreements assigned hereby or any of the rights thereunder. Assignor makes no other representation or warranty in connection with this Assignment except as set forth in the Agreement dated as of July 19, 2002 by and among
Overseas Capital Co. and Xxxxxx Place Corp., Inc., as seller, and SPG Xxxxxx Associates, LLC and Xxxxx Xxxxxx Place, Inc. (by assignment from Simon Property Group, L.P.), as buyer, and, except for the foregoing, this Assignment is made without
recourse to Assignor.
4. Each of Xxxxxx Place Associates, LLC, Urban Retail Properties Co.
and Assignor hereby agrees with each other as follows: (i) there are no pending claims against the
other with respect to the Agreements to which it is a party or by which it is bound, (ii) to its knowledge, there are no defaults by the other under the Agreements to which it is a party or by
which it is bound and (iii) each is hereby released by the other from any and all claims and liabilities except for (a) the adjustment of fees with respect to the foregoing Agreements to which it is a party or by which it is bound and (b) those
matters which, by the express terms of the Agreement to which it is a party or by which it is bound, survive an assignment thereof.
5. All terms of this Assignment shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective legal representatives, successors and assigns.
6. No modification, waiver, amendment, discharge or change of this Assignment shall be valid unless the
same is in writing and signed by the party against which the enforcement of such modification, waiver, amendment, discharge or change is or may be sought.
7. This Assignment shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts.
8. This Assignment may be executed in any number of counterparts, each of which so executed shall be deemed original; such counterparts shall
together constitute but one assignment. Faxed signature pages shall have the same legal effect as an original signature page.
[The remainder of this page is intentionally left blank.]
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ASSIGNOR:
OVERSEAS MANAGEMENT, INC. | ||
By: |
/s/ XXXX X. XXXXXXX | |
Name: Xxxx X. Xxxxxxx Title: Director |
By: |
/s/ XXXXX X. XXXXX | |
Name: Xxxxx X. Xxxxx Title: Vice-President, Real
Estate |
ASSIGNEE:
SIMON MANAGEMENT ASSOCIATES, LLC | ||
By: |
/s/ XXXXXXX X. XXXXXXX | |
Name: Xxxxxxx X. Xxxxxxx Title: President |
Xxxxxx Place Associates, LLC and Urban Retail Properties Co. each
hereby executes this Assignment for the purpose of agreeing to the provisions of Paragraph 4 hereof.
XXXXXX PLACE ASSOCIATES, LLC By: Overseas Capital Co. | ||
By: |
/s/ XXXX X. XXXXXXX | |
Name: Xxxx X. Xxxxxxx Title: Director |
By: |
/s/ XXXXX X. XXXXX | |
Name: Xxxxx X. Xxxxx Title: Vice-President, Real
Estate |
URBAN RETAIL PROPERTIES CO. | ||
By: |
/s/ XXXXXXX X. XXXXXXX | |
Name: Xxxxxxx X. Xxxxxxx Title: Authorized
Signatory |
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EXHIBIT C
Prorations Statement
EXHIBIT D
LLC Defaults
As set forth in the
letter dated January 30, 2002 from Overseas Capital Co. to Urban Retail Properties Co. requesting certification of the Number of Adjusted Shares owned by the JMB Group and evidence of such ownership.
As set forth in the letter dated April 25, 2002 from Overseas Management, Inc. to Urban Retail Properties Co. regarding the termination of
Urban Retail Properties Co. pursuant to Section 2.2.4 of the Agreement for Purchase of Consulting and Other Services dated 1/23/97.
As set forth in that certain action filed in the Superior Court of the Commonwealth of Massachusetts on July 2, 2002.