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CONFORMED COPY
CONTRIBUTION AGREEMENT (Simon Family Group)
CONTRIBUTION AGREEMENT, dated as of June 25, 1996 (the
"AGREEMENT"), by and among XxXxxxxxx Realty Corporation, an Ohio corporation
("XXXXXXXXX"), as the general partner of XxXxxxxxx Realty Partnership, L.P., a
Delaware limited partnership ("DRP"), and, after the consummation of the
transactions contemplated hereby and by the Merger Agreement referred to below,
as a general partner of SDG (as hereinafter defined) (DRP simultaneously
herewith will change its name to Xxxxx XxXxxxxxx Group, L.P. ("SDG")), Simon
Property Group, Inc., a Maryland corporation ("SIMON"), in its individual
capacity and as the general partner of Simon Property Group, L.P., a Delaware
limited partnership ("SPG L.P."), and the limited partners of SPG L.P. listed on
SCHEDULE A (as supplemented from time to time pursuant to Section 1.2(c) hereof)
hereto (together with Simon, the "SUBSCRIBERS").
RECITALS
(a) Simultaneously with the consummation of the merger of Day
Acquisition Corp. ("SUBCO") with and into XxXxxxxxx (the "MERGER") and the other
transactions contemplated by the Agreement and Plan of Merger (the "MERGER
AGREEMENT"), dated as of March 26, 1996, among Simon, Subco and XxXxxxxxx, each
Subscriber shall contribute to SDG, and SDG shall accept from each such
Subscriber, certain of its respective interests in SPG L.P. (collectively, the
"SIMON INTERESTS") specified pursuant to Recital (b) below, and in consideration
for such contributions by each Subscriber, and in exchange therefor, SDG shall
issue to each Subscriber, and
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each Subscriber shall receive from SDG, certain partnership interests in SDG
("UNITS").
(b) Each Subscriber shall contribute to SDG, and SDG shall
accept from each such Subscriber, the Simon Interests set forth opposite the
name of each such Subscriber on SCHEDULE B hereto (as supplemented from time to
time pursuant to Section 1.2(c) hereof). SDG shall issue to each Subscriber, and
such Subscriber shall receive from SDG, the number of Units set forth opposite
the name of each such Subscriber on SCHEDULE C hereto (as supplemented from time
to time pursuant to Section 1.2(c) hereof).
(c) In order to consummate the transactions contemplated by
this Agreement at the Closing (as hereinafter defined), (i) the Fourth Amended
and Restated Agreement of Limited Partnership of DRP, dated as of April 21, 1994
as heretofore amended (the "XXXXXXXXX PARTNERSHIP AGREEMENT"), which, among
other things, will change the name of DRP to "Xxxxx XxXxxxxxx Group, L.P.,"
shall be amended and restated substantially in the form attached hereto as ANNEX
A (the "NEW SDG PARTNERSHIP AGREEMENT"), and (ii) the Second Amended and
Restated Agreement of Limited Partnership of SPG L.P., dated as of December 30,
1995 (the "OLD SPG PARTNERSHIP AGREEMENT"), shall be amended and restated
substantially in the form attached hereto as ANNEX B (the "NEW SPG PARTNERSHIP
AGREEMENT").
(d) Capitalized terms used but not defined herein shall have
the respective meanings ascribed to such terms in the Merger Agreement.
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NOW THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
SECTION 1
CONTRIBUTION AND EXCHANGE; CLOSING
1.1 Contribution and Exchange. Subject to the receipt of
the consents specified on SCHEDULE D hereto prior to the Closing in form and
substance satisfactory to XxXxxxxxx and Xxxxx, upon the terms and subject to the
other conditions of this Agreement, each Subscriber shall contribute to SDG, and
SDG shall accept from each such Subscriber, its respective Simon Interests, as
set forth opposite the name of each such Subscriber on SCHEDULE B hereto.(1) SDG
shall issue to each Subscriber, and each Subscriber shall receive from SDG, the
number of Units set forth opposite the name of each such Subscriber on SCHEDULE
C hereto.(2) Each of SDG and SPG L.P. shall make a cash flow distribution to
their respective partners, the record
1/ SCHEDULE B sets forth (i) the limited partner interest of each SPG L.P.
Limited Partner in SPG L.P. being transferred to SDG and (ii) with
respect to Simon's general partner interest in SPG L.P. being
transferred to SDG, units representing 10.5% of the total outstanding
units in SPG L.P. plus the assignment of 49.5% of the interest in the
profits of SPG L.P.
2/ SCHEDULE C sets forth the Units being issued to each SPG L.P. Limited
Partner in SDG as well as the non managing general partner interest
being issued to Simon in SDG. It is anticipated that subsequent to the
first anniversary of the Closing, Simon will transfer to SDG for no
additional consideration, all of its remaining economic interest in SPG
L.P. other than units constituting 1% of the total issued and
outstanding units in SPG L.P. It is also anticipated that 13 months
after the Closing, all Preferred Units owned by Simon will be
transferred to SDG in exchange for the same number of Preferred Units
in SDG.
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date for which shall be the close of business on the last day prior to the
Effective Time. The amount of each such distribution shall be equal to the
amount of each partnership's most recent prior cash flow distribution,
multiplied by the number of days elapsed since the record date for such prior
distribution through and including the Effective Time and divided by 91, which
distribution shall constitute the only cash flow distribution to be paid in
respect of the period from such prior record date through and including the
Effective Time. Such distributions shall be paid in accordance with the
respective past practices of the partnerships.
1.2 The Closing. The closing for the contribution of Simon
Interests in exchange for Units as provided for hereunder (the "CLOSING") shall
take place concurrently with the consummation of the Merger at the offices of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 1285 Avenue of the Americas, New York,
New York. At the Closing:
(a) Each Subscriber shall deliver to SDG such good
and sufficient instruments of conveyance and assignment as SDG and its counsel
shall deem reasonably necessary or appropriate to vest in SDG good title in and
to the Simon Interests, respectively owned by each such Subscriber, free and
clear of all Liens.
(b) Simon, as the general partner of SPG L.P.,
XxXxxxxxx, as the managing general partner of SDG, and, to the extent necessary,
existing limited partners of SPG L.P. shall deliver a duly executed counterpart
of the New SPG Partnership Agreement, pursuant to which (i) SDG agrees to be
bound by the terms and
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conditions of the New SDG Partnership Agreement, and (ii) SDG becomes a limited
partner of SPG L.P.
(c) The New SDG Partnership Agreement shall be
executed and delivered by (i) XxXxxxxxx, as managing general partner of SDG,
(ii) the Simon Limited Partners who become limited partners of SDG (to the
extent their signatures are required), (iii) Simon, as non-managing general
partner of SDG, and (iv) by existing partners of SDG to the extent required, but
in any event, at least a Majority-in-Interest (as such terms is defined in the
XxXxxxxxx Partnership Agreement) of the limited partners of DRP. In this
connection, it is anticipated that other limited partners of SPG L.P. will
execute contribution agreements substantially in the form hereof and that at the
Closing, Units will be issued to such other limited partners of SPG L.P. in
exchange for their respective limited partnership units in SPG L.P. in the same
ratio as Units are being issued to the Simon Limited Partners hereunder. Simon
shall provide from time to time modified Schedules A, B, C, E and F to reflect
the execution and delivery from time to time of additional contribution
agreements, whereupon such holders of interests in SPG L.P. shall become SDG
Limited Partners for the purposes hereof. Each such additional contribution
agreement shall be deemed to constitute a counterpart pursuant to Section 6.7
below. Not less than ten business days prior to the Closing, Simon shall deliver
to XxXxxxxxx, SDG and SPG L.P. a final, accurate composite of all counterpart
contribution agreements signed by all of the Simon Limited Partners who have
signed contribution agreements together with the final forms of Schedules A, B,
C, E and F reflecting all of the Simon Limited Partners that
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have signed Contribution Agreements, the aggregate Simon Interests to be
exchanged by such Simon Limited Partners and other aggregate information called
for by said Schedules. To the extent such composite Contribution Agreement only
reflects the information called for by the preceding sentence, it shall not be
deemed to constitute an amendment, waiver or modification of this Agreement for
the purposes of Section 6.5 below.
(d) Any other documents or agreements required to
admit the Subscribers as partners of SDG shall be executed and delivered as
necessary.
SECTION 2
REPRESENTATION AND WARRANTIES; INDEMNIFICATION
2.1 Representations and Warranties of SDG. SDG represents and
warrants to each Subscriber that:
(a) Due Organization and Good Standing. SDG is a
limited partnership duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and has the requisite power and
authority to carry on its business as now being conducted. SDG is duly qualified
or licensed to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification or licensing necessary, other than in such jurisdictions
where the failure to be so qualified or licensed, individually or in the
aggregate, would not have a material adverse effect on the business, financial
condition or results of operations of SDG or on the ability of SDG
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to consummate the transactions contemplated in this Agreement. The XxXxxxxxx
Partnership Agreement, a copy of which has been delivered to Simon, as general
partner of SPG L.P., has not been amended or modified (except as permitted by
the Merger Agreement), annulled, rescinded or revoked since such delivery, and
is in full force and effect as of the date hereof; it being understood by the
parties hereto that upon the Closing, the XxXxxxxxx Partnership Agreement shall
be amended and restated and the agreements and relationships among the partners
of SDG shall thereafter be governed by the New SDG Partnership Agreement.
(b) Authorization and Validity of Agreement. SDG has
the requisite partnership power and authority to enter into this Agreement and
consummate the transactions contemplated thereby. The execution, delivery and
performance of this Agreement by SDG and the consummation by SDG of the
transactions contemplated hereby have been duly authorized on behalf of SDG by
XxXxxxxxx, as the general partner of SDG. This Agreement has been duly
authorized, executed and delivered by XxXxxxxxx, as the general partner of SDG,
and, subject to the consent of certain limited partners of SDG as required by
the XxXxxxxxx Partnership Agreement (the "S-D CONSENT"), it constitutes a legal,
valid and binding obligation of SDG, enforceable against SDG in accordance with
its terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws at
the time in effect affecting the enforceability of rights of creditors and (ii)
the remedy of specific performance and injunctive and other forms of equitable
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relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) Non-Contravention. The execution, delivery and
performance by SDG of this Agreement and the issuance of the Units pursuant to
the New SDG Partnership Agreement do not and will not (i) subject to the
obtaining of the S-D Consent, contravene or conflict with the XxXxxxxxx
Partnership Agreement or the New SDG Partnership Agreement, (ii) contravene or
conflict with or constitute a violation of any provision of any Laws binding
upon or applicable to SDG, (iii) require any consent, approval or other action
by any Governmental Entity or any other person other than those consents or
approvals set forth on SCHEDULE D hereto, (iv) constitute a default under or
give rise to any right of termination, cancellation or acceleration of any right
or obligation of SDG under any provision of any agreement, contract, indenture,
lease or other instrument binding upon SDG or any license, franchise, permit or
other similar authorization held by SDG or by which any of SDG's assets may be
bound or (v) result in the creation or imposition of any Liens on SDG; provided,
however, it is understood that the right of SDG to execute, deliver and perform
this Agreement may be deemed to require the consents set forth on SCHEDULE D
hereto.
(d) Litigation. There are no pending actions, suits
or proceedings pending or, to the knowledge of DRP, threatened in writing,
against or affecting DRP or any of its properties, assets or operations, or with
respect to which
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DRP is responsible by way of indemnity or otherwise that could, individually or
in the aggregate, reasonably be likely to have a material adverse effect.
(e) Units Issued Free and Clear of Liens. All of the
Units required to be issued to each Subscriber pursuant to this Agreement shall
be validly issued free and clear of any Liens, and each Subscriber shall have
all of its respective rights and privileges as provided in the New SDG
Partnership Agreement.
(f) Capitalization. Following the consummation of the
transactions contemplated in this Agreement, the number of Units held by each
partner of SDG shall be calculated as set forth on SCHEDULE E hereto and the
results of such calculation shall be set forth on Exhibit A to the New SDG
Partnership Agreement.
(g) SEC Documents. The Annual Report on Form 10-K of
XxXxxxxxx for the year ended December 31, 1995 as filed with the SEC, a copy of
which has been delivered to each Subscriber, contains no untrue statement of
material fact and does not omit to state any fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
2.2 Representations and Warranties of Simon
(a) SEC Documents. The Annual Report on Form 10-K of
Simon for the year ended December 31, 1995 as filed with the SEC, a copy of
which has been delivered to SDG, contains no untrue statement of material fact
and does not omit to state any material fact required to be stated therein or
necessary to make the
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statements therein, in light of the circumstances under which they were made,
not misleading.
2.3 Representations and Warranties of Each Subscriber that Is
Not a Natural Person. Each Subscriber which is not a natural person represents
and warrants to SDG and XxXxxxxxx, as general partner of SDG, and to each other
Subscriber that:
(a) it is an organization duly organized and validly
existing in good standing under the laws of its jurisdiction of organization and
(b) the execution, delivery and performance by such
Subscriber of this Agreement and the New SDG Partnership Agreement (i) are
within its power and authority and do not and will not contravene or conflict
with the certificate or articles of incorporation, by-laws, partnership
agreement or other organizational or governance documents of such Subscriber and
(ii) have been duly authorized by all necessary action by such Subscriber.
2.4 Representations and Warranties of All Subscribers. Each
Subscriber represents and warrants to SDG and to each other Subscriber as
follows:
(a) Authorization and Validity of Agreement. This Agreement
has been duly executed and delivered by such Subscriber and constitutes a legal,
valid and binding obligation of such Subscriber, enforceable against such
Subscriber in accordance with its terms and the New SDG Partnership Agreement
shall be duly executed and delivered by such Subscriber and shall constitute
legal, valid and binding obligations of such Subscriber, enforceable against
such Subscriber in accordance with its terms, except in each case that (i) such
enforcement may be subject
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to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or similar laws at the time in effect affecting the enforceability of rights of
creditors and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(b) Non-Contravention. The execution, delivery and
performance by such Subscriber of this Agreement and the New SDG Partnership
Agreement and the consummation of the transactions contemplated herein and
therein by such Subscriber do not and will not (i) contravene or conflict with
or constitute a violation of any provision of any Laws binding upon or
applicable to such Subscriber, (ii) require any consent, approval or other
action by any Governmental Entity or any other person other than those consents
or approvals as set forth on SCHEDULE F, or (iii) result in the creation or
imposition of any Lien on any of the Simon Interests held by such Subscriber.
(c) Litigation. There are no pending actions, suits
or proceedings pending or, to the knowledge of such Subscriber, threatened in
writing, against or affecting such Subscriber or any of its properties, assets
or operations, or with respect to which such Subscriber is responsible by way of
indemnity or otherwise that could or in any way limit the ability of such
Subscriber to consummate the transaction contemplated hereby.
(d) Access to Information. Such Subscriber
acknowledges that it or its representative or agent (i) has been given full and
complete access to SDG
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in connection with this Agreement and the transactions contemplated hereby, (ii)
has had the opportunity to review all documents relevant to its decision to
enter into this Agreement and (iii) has had the opportunity to ask questions of
SDG and its management concerning its investment in SDG and the transactions
contemplated hereby.
(e) Investment Intent of Each Subscriber. Such
Subscriber acknowledges that it understands that the Units to be issued to such
Subscriber in exchange for the Simon Interests to be contributed by Subscriber
as provided herein (i) shall not be registered under the Securities Act in
reliance upon the exemption afforded by Section 4(2) thereof for transactions by
an issuer not involving any public offering and (ii) shall not be registered or
qualified under any applicable state securities laws. Such Subscriber represents
that (i) it is acquiring such Units for investment only and without any view
toward distribution thereof and it shall not sell or otherwise dispose of such
Units except in compliance with the registration requirements or exemption
provisions of any applicable federal or state securities laws and in accordance
with the terms of such securities contained in the New SDG Partnership
Agreement, as amended, (ii) its economic circumstances are such that it is able
to bear all risks of the investment in the Units for an indefinite period of
time, including the risk of a complete loss of its investment in the Units,
(iii) it has knowledge and experience in financial and business matters
sufficient to evaluate the risks of investment in the Units and (iv) it has
consulted with its own counsel and tax advisor, to the extent deemed necessary
by it, as to all legal and taxation matters covered by this
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Agreement and has not relied upon DRP, XxXxxxxxx, Xxxxx or any of
their respective affiliates, officers and representatives for any explanation of
the application of the various federal or state securities laws or tax laws with
regard to its acquisition of the Units. Such Subscriber further acknowledges and
represents that it has made its own independent investigation of SDG and the
business proposed to be conducted by SDG, and that any information relating
thereto furnished to such Subscriber was supplied by or on behalf of SDG.
(f) Ownership and Encumbrance of the Assets.
(i) Such Subscriber has all right, title and
interest in the respective Simon Interests to be contributed to SDG by it free
and clear of any Liens. Except as disclosed on SCHEDULE G, such Subscriber has
not granted any rights, options or rights of first refusal, or entered into any
agreements of any kind that are currently in effect or that have not been
waived, to purchase or otherwise acquire such Simon Interests, or any part
thereof or any interest therein, except the rights of SDG under this Agreement.
(ii) Upon consummation of the Closing, SDG
shall be the legal owner of the Simon Interests delivered by each such
Subscriber free and clear of all Liens.
(g) Advisors. Such Subscriber has consulted with its
own counsel and tax advisor, to the extent such Subscriber deemed necessary, as
to the legal and taxation matters associated with this Agreement and the
transactions contemplated hereby and has not relied upon DRP, XxXxxxxxx, Xxxxx
or any of their respective
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affiliates, officers and representatives for any explanation of the application
of federal or state securities or tax laws with regard to its contribution of
the Simon Interests or its receipt of the Units pursuant to the terms hereof.
2.5 Indemnification. Each Subscriber shall, subject to the
limitations hereinafter set forth, indemnify and hold SDG and its partners free
and harmless of and from any claim, loss, damage, expense, cost or liability
(including, without limitation, reasonable attorneys' fees and disbursements)
resulting from its respective breach of any representation or warranty in made
by it in Sections 2.3 and 2.4. SDG shall, subject to the limitations hereinafter
set forth, indemnify and hold each Subscriber, and its partners, officers and
directors (if applicable), free and harmless of and from any claim, loss,
damage, expense, cost or liability (including without limitation, reasonable
attorneys' fees and disbursements) resulting from a breach of any representation
and warranty in Section 2.1. Simon shall, subject to the limitations hereinafter
set forth, indemnify and hold SDG and its partners free and harmless of and from
any claim, loss, damage, expense, cost or liability (including, without
limitation, reasonable attorneys' fees and disbursements) resulting from a
breach of any representation or warranty in Section 2.2. SPG L.P. shall, subject
to the limitations hereinafter set forth, indemnify and hold SDG and its
partners free and harmless of and from any claim, loss, damage, expense, cost or
liability (including, without limitation, reasonable attorneys' fees and
disbursements) resulting from a breach of any representation or warranty in
Section 2.3. Notwithstanding anything to the contrary contained herein, (i) in
no event shall the amount that SDG may recover against any
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Subscriber or that any Subscriber may recover against SDG under or in
respect of this Section 2.5 for a breach of any representation or warranty in
Sections 2.2, 2.4 or 2.5 hereof exceed the fair market value of the Units issued
to such Subscriber, (ii) all obligations and liabilities of each Subscriber
under this Agreement are enforceable solely against such Subscriber's Units and
not against any of such Subscriber's other assets, any other Subscriber or any
assets of any other Subscriber.
2.6 Transfer Taxes. SDG shall be solely responsible for the
payment of any transfer taxes or similar charges imposed by any state, county or
municipality in which any of the Simon Interests is located in connection with
the contribution of the Simon Interests to SDG. Also at the Closing, and in
addition to the delivery of any documents required to be delivered in connection
therewith, each Subscriber and SDG shall execute, acknowledge and deliver such
returns, questionnaires, certificates, affidavits, declarations and other
documents which may be required in connection with the sales taxes and other
taxes, fees or charges imposed by any governmental agency in connection with the
transactions contemplated hereby, and shall complete, sign and swear to the same
as may be necessary.
SECTION 3
CONDITIONS TO CLOSING
3.1 Conditions to Obligations of All Parties. The obligations
of DRP and each Subscriber to consummate the Closing are subject to the
simultaneous consummation of the Merger, the simultaneous execution and delivery
of the New SDG
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Partnership Agreement (by XxXxxxxxx, as managing general partner of SDG, Simon,
as non-managing general partner of SDG, and to the extent required by those
limited partners of SPG L.P. who become limited partners of SDG pursuant to the
performance of this Agreement and the other Contribution Agreements) and to the
simultaneous execution and delivery of the New SPG Partnership Agreement.
3.2 Conditions to Obligations of SDG. The obligations of DRP to
consummate the Closing with respect to a particular Subscriber is subject to the
satisfaction of the further conditions that: (i) the representations and
warranties of such Subscriber as set forth herein shall be true and correct as
of the Closing Date in all material respects with the same force and effect as
if made on the Closing Date, (ii) the S-D Consent shall have been obtained and
(iii) each Subscriber shall have performed in all material respects all of its
obligations hereunder required to be performed by such Subscriber on or prior to
the Closing Date.
3.3 Conditions to Obligations of Each Subscriber. The obligations of
each Subscriber to consummate the Closing is subject to the further conditions
that: (i) the representations and warranties of DRP set forth in this agreement
shall be true and correct in all material respects as of the Closing Date as
though made on the Closing Date, (ii) DRP shall have performed in all material
respects all of its obligations hereunder required to be performed by DRP at or
prior to the Closing Date, (iii) the requisite partners of DRP shall have
consented the execution and delivery of the New SDG Partnership Agreement and to
the extent required shall have executed and delivered counterparts of the New
SDG Partnership Agreement at the Closing and
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(iv) each consent set forth opposite the name of each Subscriber on SCHEDULE F
shall have been obtained.
SECTION 4
COVENANTS
4.1 Further Assurances. SDG and each Subscriber agree, at any time and
from time to time after the Closing, to execute, acknowledge where appropriate
and deliver such further instruments and documents and to take such other action
as the other of them may reasonably request in order to carry out the intents
and purposes of this Agreement. The provisions of this Section 4 shall survive
the Closing.
SECTION 5
CONSENTS TO TRANSFER
5.1 Consent of Simon Limited Partners. Pursuant to Section 9.1 of the
Old SPG Partnership Agreement, the Simon Limited Partners who are parties hereto
hereby (i) consent to the contribution to SDG of the Simon Interests of Simon as
provided herein and (ii) consents to the admission of SDG as a special limited
partner of SPG L.P. pursuant to the Partnership Agreement.
5.2 Consent of Simon. Pursuant to Section 9.2 of the Old SPG
Partnership Agreement, Simon, as the general partner of SPG L.P., hereby (i)
consents to the contribution to SDG of the respective Simon Interests of each
Simon Limited Partner as provided herein and (ii) consents to the admission of
SDG as a limited partner of SPG L.P.
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SECTION 6
MISCELLANEOUS
6.1 Notices. All notices and other communications given or made under
this Agreement shall be in writing and shall be deemed to have been duly given
or made if delivered personally or sent by registered or certified mail (postage
prepaid, return receipt requested) or by telecopier (if written confirmation of
receipt is available and provided) to the parties at the following addresses:
(a) If to SPG to:
Simon Realty Corporation
Merchants Plaza
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to each Subscriber, to the address or
telecopy number thereof that each Subscriber
shall have previously indicated in writing.
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or such other addresses as shall be furnished by the parties hereto by like
notice, and such notice or communication shall be deemed to have been given or
made as of the date so delivered or made.
6.2 Entire Agreement. This Agreement (together with each other
Contribution Agreement referred to in Section 1.2(c) above) constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, oral and written,
among the parties hereto with respect to such subject matter.
6.3 Binding Effect; Benefit. Subject to Section 6.4 hereof, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto, and their respective successors and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
6.4 Assignability. This Agreement (a) shall not be assignable by SDG
without prior written consent of each Subscriber and (b) shall not be assignable
by any Subscriber without the prior written consent of SDG.
6.5 Amendment; Waiver. No provision of this Agreement may be amended,
waived or otherwise modified except by an instrument in writing executed by the
parties hereto.
6.6 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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6.7 Counterparts. This Agreement may be executed in any number of
counterparts, including those executed from time to time by the holders of
partnership interests in SPG L.P. referred to in Section 1.2(c) above each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument. Delivery of executed signature pages
by telecopier shall be acceptable evidence of delivery to the parties hereto.
Delivery of executed signature pages by telecopier shall be followed immediately
by delivery of the original signature pages by overnight courier.
6.8 Limitation of Liability. Any obligation or liability whatsoever of
either XxXxxxxxx or Xxxxx or any Subscriber which is a corporation or a partner
ship which may arise at any time under this Agreement or any other instrument,
transaction, or undertaking contemplated hereby shall be satisfied, if at all,
out of the assets of the DeBartolo, Simon, SDG or any such other corporation or
partnership only. No such obligation or liability shall be personally binding
upon, nor shall resort for the enforcement thereof be had to, any of XxXxxxxxx,
Xxxxx or SDG's any such other corporation's or partnership's directors,
partners, shareholders, officers, employees, or agents, regardless of whether
such obligation or liability is in the nature of contract, tort or otherwise.
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6.9 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXXXXXXXX REALTY GROUP, L.P.
By: XXXXXXXXX REALTY CORPORATION,
as General Partner
By: /s/
________________________________
SIMON PROPERTY GROUP, INC.
By: /s/
________________________________
SUBSCRIBER:
By: /s/
________________________________
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Schedule A
LIST OF SUBSCRIBERS
x. Xxxxx Property Group, Inc.
ii. Xxxxxx Xxxxx
iii. Xxxxxxx Xxxxx
iv. Xxxxxxx X. Xxxxx
v. Xxxxxxx Xxxxx Skjodt
vi. Xxxxx X. Xxxxx
vii. Xxxxx Xxxx, Trust 8/4/70
viii. Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 1 (4/4/72)
ix. Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 6 (7/21/75)
x. Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 7 (8/11/77)
xi. Xxxxx Xxxx, Xxxxxxx Xxxxx Trust No. 3 (HST#3)
xii. S.F.G. Company, L.L.C.
xiii. MSA and Subsidiaries
Xxxxxx Xxxxx & Associates, Inc.
Naco Simon Corp.
Xxxx Xxxxx Corporation
Simon Enterprises, Inc.
Xxxxx Springs Properties, Inc.
24
Schedule B
SIMON INTERESTS OF EACH SUBSCRIBER
LIMITED PARTNERS
NAME OF SUBSCRIBER SIMON INTEREST
(NUMBER OF UNITS)
Simon Property Group, Inc. 58,560,225
Xxxxxx Xxxxx 6,364,000
Xxxxxxx Xxxxx 5,179,414
Xxxxxxx X. Xxxxx 405,681
Xxxxxxx Xxxxx Skjodt 405,681
Xxxxx X. Xxxxx 54,953
Xxxxx Xxxx, Trust 8/4/70 2,179,803
Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 1 811,362
(4/4/72)
Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 6 680,734
(7/21/75)
Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 7 275,054
(8/11/77)
Xxxxx Xxxx, Xxxxxxx Xxxxx Trust No. 3 502,080
(HST#3)
S.F.G. Company, L.L.C. 6,606,200
MSA and Subsidiaries
Xxxxxx Xxxxx & Associates, Inc. 9,681,766
Naco Simon Corp. 50
Xxxx Xxxxx Corporation 142,148
Simon Enterprises, Inc. 750,981
Xxxxx Springs Properties, Inc. 62,025
25
Schedule C
UNITS OF EACH SUBSCRIBER IN XXXXX XXXXXXXXX GROUP, L.P.
UNITS
NAME OF SUBSCRIBER NUMBER OF UNITS
Simon Property Group, Inc. 58,560,225
Xxxxxx Xxxxx 6,364,000
Xxxxxxx Xxxxx 5,179,414
Xxxxxxx X. Xxxxx 405,681
Xxxxxxx Xxxxx Skjodt 405,681
Xxxxx X. Xxxxx 54,953
Xxxxx Xxxx, Trust 8/4/70 2,179,803
Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 1 811,362
(4/4/72)
Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 6 680,734
(7/21/75)
Xxxxx Xxxx, Xxxxxx Xxxxx Trust No. 7 275,054
(8/11/77)
Xxxxx Xxxx, Xxxxxxx Xxxxx Trust No. 3 502,080
(HST#3)
S.F.G. Company, L.L.C. 6,606,200
MSA and Subsidiaries
Xxxxxx Xxxxx & Associates, Inc. 9,681,766
Naco Simon Corp. 50
Xxxx Xxxxx Corporation 142,148
Simon Enterprises, Inc. 750,981
Xxxxx Springs Properties, Inc. 62,025
26
Schedule D
Required Consents of SDG
1. Consent required pursuant to (a) the SECOND AMENDED AND RESTATED
NEW FACILITY CREDIT AGREEMENT, dated as of March 31, 1994 by and among
XxXXXXXXX, INC. and THE XXXXXX X. XxXXXXXXX CORPORATION, as the Borrowers, XXXXX
FARGO BANK, N.A., as the Issuing Bank, and the Co-Lenders specified therein, and
XXXXX FARGO REALTY ADVISORS FUNDING, INCORPORATED as the Administrative Agent
and (b) the pledge agreements and other documents delivered pursuant thereto.
2. Consents required pursuant to (a) the SECOND AMENDED AND RESTATED
RESTRUCTURING FACILITY CREDIT AGREEMENT, dated as of March 31, 1994 by and among
XxXXXXXXX, INC. and THE XXXXXX X. XxXXXXXXX CORPORATION, as the borrowers, and
the Co-Lenders specified therein, and XXXXX FARGO REALTY ADVISORS FUNDING,
INCORPORATED, as the Administrative Agent and (b) the pledge agreements and
other documents delivered pursuant thereto.
3. Consents required to be obtained prior to the consummation of the
merger as specified in the Merger Agreement.
27
Schedule E
FORMULA FOR DETERMINATION OF XXXXX XxXXXXXXX
GROUP, L.P. UNITS TO BE OUTSTANDING AFTER THE MERGER
1. The XxXxxxxxx Realty Partnership, L.P. General and Limited
Partners shall receive a number of Units in Xxxxx XxXxxxxxx Group, L.P. equal to
the total number of shares of Simon Property Group, Inc. issued in the Merger to
the shareholders XxXxxxxxx Realty Corporation plus the additional number of
shares that would have been issued had all Limited Partnership interests
outstanding at the Effective Time been exchanged for shares of XxXxxxxxx Realty
Corporation pursuant to the Exchange Rights Agreement dated as of April 21, 1994
with a Valuation Date (as defined in the Exchange Rights Agreement) for such
hypothetical exercise being the business day preceding Effective Time. Were the
closing to have occurred on March 26, 1996, this number would be 61,076,480.(1)
2. The total number of Units in Xxxxx XxXxxxxxx Group, L.P. to be
issued to Simon Property Group, L.P. General and Limited Partners shall be a
maximum of 99% of the total number of outstanding Units in Simon Property Group,
L.P. as at the date of the Merger. At March 26, 1996, the total number of
outstanding units is 95,843,000 and 99% of this number is 94,884,570. The total
number of Units issuable to the XxXxxxxxx Realty Partnership, L.P. General and
Limited Partners are herein referred to as "XxXxxxxxx Units" and the total
number of Units issuable to the Simon Property Group, L.P. General and Limited
Partners are herein called the "SPG Units.(1)
--------------------
(1) The methodology used to arrive at this formula and these numbers is as
follows. The 61,076,480 Unit number is equal to the total number of
shares of Simon Property Group, Inc. that would be issued in the Merger
at the exchange ratio if the Merger took place on March 26, 1996 and if
all outstand ing limited partnership interests in XxXxxxxxx Realty
Partnership, L.P. had been exercised in full. The 95,843,000 Unit
number is equal to the total number of shares of stock of Sunny that
would be outstanding immediately prior to the Merger if it took place
on March 26, 1996 if all outstanding Units in the Simon Property Group,
L.P. were exercised in full. Since all or almost all of the assets of
XxXxxxxxx Realty Corporation and Simon Property Group, Inc. consist of
their general partnership interests in the two operating partner ships,
the relationship between the shares which would be issued in the Merger
if all outstanding limited partnership interests in XxXxxxxxx Realty
Corporation were exercised in full to the shares of Simon Property
Group, Inc. that would be outstanding immediately prior to the Merger
if all Units were converted prior to the Merger establishes the
relative values of the two partnerships on March 26, 1996. As a matter
of convenience the Simon Property Group, L.P. Units will be exchanged
on a 1-for-1 basis.
28
2
3. Of the XxXxxxxxx Units, a percentage equal to its then percentage
interest in the XxXxxxxxx Realty Partnership, L.P. (at present 61.8424%) will be
allocated to XxXxxxxxx Realty Corporation as general partner and the remaining
Units will be allocated to the XxXxxxxxx Realty Partnership, L.P. limited
partners. The number of Units to be issued to each XxXxxxxxx Realty Partnership,
L.P. limited partner will be a percentage of the total number of Units to be
allocated to the XxXxxxxxx Realty Partnership, L.P. partners equal to the
percentage interest that each such limited partner had in the XxXxxxxxx Realty
Partnership, L.P. immediately prior to the Merger. Accordingly, if the Closing
took place March 26, 1996, 37,771,158 Units will be allocated to XxXxxxxxx
Realty Corporation as general managing partner and 23,305,322 Units will be
issued in the aggregate to the XxXxxxxxx Realty Partnership, L.P. limited
partners.
4. The number of Units issued to the Simon Property Group, L.P.
general and limited partners will be as follows: (x) one Unit will be issued for
each Simon Property Group, L.P. Unit exchanged by a Simon Property Group, L.P.
Limited partner and (y) Simon Property Group, Inc., as the general partner of
Simon Property Group, L.P., will receive for the economic interests being
transferred by it a number of Units equal to the number of Simon Property Group,
L.P. Units then owned by it less a number equal to 1% of the then outstanding
Simon Property Group, L.P. Units. Accordingly, if the Closing took place on
March 26, 1996, this number would be 58,579,241. (This number is derived by
multiplying 95,843,000 by 61.22%, the present percentage interest held by Simon
Property Group, Inc. in Simon Property Group, L.P. and subtracting 95,843 Units
being 1% of the outstanding Units). To the extent that Simon Property Group,
L.P. limited partners do not exchange Simon Property Group, L.P. Units, the
Simon Property Group, L.P. Units that would have been issued in respect thereof
will not be issued. This would have the effect of increasing the percentage
interest in Xxxxx XxXxxxxxx Group, L.P. by XxXxxxxxx Realty Partnership, L.P.
partners.
29
Schedule F
Required Consents of Subscribers
Partner Consents:
Circle Centre Partners, Ltd.
Re: Circle Centre Mall, Indianapolis, Indiana
Lender Consents:
CIGNA
1. Xxxxxx Creek
2. Xxxxxx Xxxx Xxxx
0. XxXxxxx Xxxx
Xxxxxxxxxxxx Life Insurance Company
1. Bloomingdale Court
2. Forest Plaza
3. Fox River Plaza
4. Lake View Plaza
5. Lincoln Crossing
6. Xxxxxxxx Plaza
7. Regency Plaza
8. Xx. Xxxxxxx Xxxxx Xxxxx
0. Xxxx Xxxxx Xxxxx
10. White Oaks Plaza
Union Bank of Switzerland
1. Circle Centre Mall
2. $400 Million Revolving Credit Facility
Marine Midland, Trustee
1. Jefferson Valley Mall
Citicorp
1. Xxxxxxxx Xxxx
0. Xx. Xxxxxxx Xxxxx Center
30
2
Lender Consents cont.:
Principal Group
1. Cobblestone Court
2. Crystal Court
3. Fairfax Court
4. Gaitway Plaza
5. Ridgewood Court
6. Royal Eagle Plaza
7. The Plaza at Buckland Hills
8. Xxx Xxxxx Xxxxx
0. Xxxxxxx Xxxx Xxxxx
00. Xxxx Xxxx Xxxxxxx
00. Xxxxxxxx Xxxx Xxxxx
12. Willow Knolls Court
REVOLVING CREDIT AGREEMENT DATED AS OF FEBRUARY 27, 1996, BETWEEN XXXXXX XXXXX
ASSOCIATES, INC. AND XXXXXX GUARANTY TRUST COMPANY OF NEW YORK AND PLEDGE AND
SECURITY AGREEMENT, ALSO DATED AS OF FEBRUARY 27, 1966, AMONG XXXXXX XXXXX &
ASSOCIATES, INC., XXXX XXXXX CORPORATION, NACO SIMON CORP., XXXXX SPRINGS
PROPERTIES, INC., SIMON ENTERPRISES, INC. AND XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, PURSUANT TO WHICH THE PLEDGORS PLEDGED TO THE BANK THEIR RIGHT TO
RECEIVE CASH DISTRIBUTIONS ATTRIBUTABLE TO THEIR RESPECTIVE LIMITED PARTNERSHIP
UNITS IN SIMON PROPERTY GROUP, L.P. AND CLASS B COMMON STOCK OF SIMON PROPERTY
GROUP, INC.
Pledge and Security Agreement dated as of December 16, 1993, made by Xxxxxx
Xxxxx and Xxxxxxx Xxxxx (collectively "Simon Pledgors") to Chemical Bank, and
additional documents executed in connection therewith, pursuant to which the
Simon Pledgors pledged to the Bank 392,135 limited partnership units owned by
them in Simon Property Group, L.P.
31
Schedule G
Rights, Options, Etc.
Revolving Credit Agreement dated as of February 27, 1996, between Xxxxxx Xxxxx
Associates, Inc. And Xxxxxx Guaranty Trust Company of New York and Pledge and
Security Agreement, also dated as of February 27, 1966, among Xxxxxx Xxxxx &
Associates, Inc., Xxxx Xxxxx Corporation, Naco Simon Corp., Xxxxx Springs
Properties, Inc., Simon Enterprises, Inc. And Xxxxxx Guaranty Trust Company of
New York, pursuant to which the Pledgors pledged to the Bank their right to
receive cash distributions attributable to their respective limited partnership
units in Simon Property Group, L.P. and Class B common stock of Simon Property
Group, Inc.
Pledge and Security Agreement dated as of December 16, 1993, made by Xxxxxx
Xxxxx and Xxxxxxx Xxxxx (collectively "Simon Pledgors") to Chemical Bank, and
additional documents executed in connection therewith, pursuant to which the
Simon Pledgors pledged to the Bank 392,135 limited partnership units owned by
them in Simon Property Group, L.P.
32
INSTRUMENT OF ASSIGNMENT
Reference is made to the Contribution Agreement (the "Contribution
Agreement"), dated as of June 25, 1996, by and among XxXxxxxxx Realty
Corporation, as the general partner of XxXxxxxxx Realty Partnership, L.P., Simon
Property Group, Inc., in its individual capacity and as the general partner of
Simon Property Group, L.P. ("SPG L.P."), and the limited partners of SPG L.P.
listed on Schedule A thereto.
FOR VALUE RECEIVED, the undersigned does hereby contribute, assign and
transfer to XxXxxxxxx Realty Partnership, L.P., a Delaware limited partnership
(to be renamed Xxxxx XxXxxxxxx Group, L.P.), all right, title and interest of
the undersigned in and to its interests in SPG L.P. representing 10.6% of the
units in SPG L.P. outstanding and an additional 49.5% interests in the profits
(and not the capital) of SPG L.P. owned by the undersigned and listed opposite
its name on Schedule B of the Contribution Agreement, effective as of the
Effective Time (as defined in the Contribution Agreement by reference to the
Merger Agreement (as defined in the Contribution Agreement)).
Dated: August 9, 1996
SIMON PROPERTY GROUP, INC.
By /s/
-------------------------