Exhibit 2.1
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PURCHASE AGREEMENT
by and among
RODAMCO NORTH AMERICA, N.V.,
WESTFIELD AMERICA LIMITED PARTNERSHIP,
WESTFIELD GROWTH, LP,
SIMON PROPERTY GROUP, L.P.,
HOOSIER ACQUISITION, LLC,
THE ▇▇▇▇▇ COMPANY
and
TERRAPIN ACQUISITION LLC
January 12, 2002
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS....................................................2
SECTION 1.1. Certain Defined Terms.....................................2
SECTION 1.2. Construction.............................................11
ARTICLE II PURCHASE AND SALE; ASSUMPTION OF LIABILITIES..................11
SECTION 2.1. Purchase and Sale of Assets..............................11
SECTION 2.2. Purchase Price; Manner of Payment........................11
SECTION 2.3. Assumption of Liabilities................................12
SECTION 2.4. Closing..................................................13
SECTION 2.5. Closing Deliveries by Target.............................13
SECTION 2.6. Closing Deliveries by Purchasers.........................14
ARTICLE III REPRESENTATIONS AND WARRANTIES OF TARGET......................14
SECTION 3.1. Organization, Standing and Corporate Power of Target.....14
SECTION 3.2. Target Subsidiaries......................................15
SECTION 3.3. Authority; No Violations; Consents and Approval..........16
SECTION 3.4. Capital Structure........................................17
SECTION 3.5. Financial Statements.....................................18
SECTION 3.6. [INTENTIONALLY OMITTED]..................................19
SECTION 3.7. Absence of Certain Changes or Events.....................19
SECTION 3.8. Environmental Matters....................................19
SECTION 3.9. Properties...............................................21
SECTION 3.10. No Undisclosed Material Liabilities......................24
SECTION 3.11. No Default...............................................24
SECTION 3.12. Compliance with Applicable Laws..........................24
SECTION 3.13. Litigation...............................................25
SECTION 3.14. Taxes....................................................25
SECTION 3.15. Pension and Benefit Plans; ERISA.........................27
SECTION 3.16. Labor and Employment Matters.............................31
SECTION 3.17. Contracts................................................31
SECTION 3.18. Intangible Property......................................32
SECTION 3.19. Insurance................................................33
SECTION 3.20. Brokers..................................................33
SECTION 3.21. Related Party Transactions...............................33
SECTION 3.22. Opinion of Financial Advisor.............................33
SECTION 3.23. Investment Company Act of 1940...........................33
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER PARTIES.......34
SECTION 4.1. Organization, Standing and Power.........................34
SECTION 4.2. Authority; No Violations; Consents and Approvals.........34
SECTION 4.3. Available Funds..........................................35
SECTION 4.4. Brokers..................................................35
ARTICLE V ADDITIONAL AGREEMENTS.........................................36
SECTION 5.1. Conduct of Business by Target Prior to the Closing.......36
SECTION 5.2. Tax Related Covenants....................................40
SECTION 5.3. Access to Information; Confidentiality...................41
SECTION 5.4. Reasonable Efforts; Notification.........................42
SECTION 5.5. Tax Returns..............................................43
SECTION 5.6. Section 754 or Other Elections...........................43
SECTION 5.7. Employee Arrangements....................................43
SECTION 5.8. No Solicitation of Acquisition Proposals.................45
SECTION 5.9. Public Announcements.....................................46
SECTION 5.10. Agreements Regarding the Disposal of Properties..........46
SECTION 5.11. Indemnification; Directors' and Officers' Insurance......47
SECTION 5.12. Shareholders' Meeting....................................49
SECTION 5.13. Voting Trust.............................................50
SECTION 5.14. Funding of Purchase Price................................50
SECTION 5.15. Officers and Directors...................................50
SECTION 5.16. Urban Retail Properties..................................50
ARTICLE VI TAX MATTERS...................................................50
SECTION 6.1. Assumption of Taxes......................................50
SECTION 6.2. Indemnification..........................................51
SECTION 6.3. Tax Contests.............................................51
SECTION 6.4. Tax Refunds..............................................51
SECTION 6.5. Withholding Certificates.................................51
ARTICLE VII CONDITIONS TO CLOSING.........................................51
SECTION 7.1. Conditions to Obligations of Purchasers..................51
SECTION 7.2. Conditions to Obligations of Target......................53
ARTICLE VIII TERMINATION..................................................54
SECTION 8.1. Termination..............................................54
SECTION 8.2. Effect Of Termination....................................56
ARTICLE IX GENERAL PROVISIONS............................................56
SECTION 9.1. Non-Survival Of Representations and Warranties...........56
SECTION 9.2. Expenses.................................................57
SECTION 9.3. Notices..................................................60
SECTION 9.4. WAIVER OF JURY TRIAL.....................................62
SECTION 9.5. Headings.................................................62
SECTION 9.6. Severability.............................................62
SECTION 9.7. Assignment...............................................62
SECTION 9.8. Entire Agreement; No Third-Party Beneficiaries...........62
SECTION 9.9. Amendment................................................63
SECTION 9.10. Governing Law............................................63
SECTION 9.11. Counterparts.............................................63
SECTION 9.12. Waiver...................................................63
SECTION 9.13. Reservation of Rights....................................63
SECTION 9.14. Enforcement..............................................63
SECTION 9.15. Exhibits; Disclosure Letter..............................64
SECTION 9.16. Joint and Several Obligations............................64
EXHIBITS
Exhibit A Assets
Exhibit B ▇▇▇▇▇▇▇▇ Letter
Exhibit C Loyens Tax Opinion
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement"), dated as of January 12,
2002, by and among Rodamco North America, N.V., an investment company with
variable capital, incorporated under the laws of The Netherlands
("Target"), Westfield America Limited Partnership, a Delaware limited
partnership ("Wallaby"), Westfield Growth, LP, a Delaware limited
partnership ("Wallaby Acquisition Sub"), Simon Property Group, L.P., a
Delaware limited partnership ("Hoosier"), Hoosier Acquisition, LLC, a
Delaware limited liability company ("Hoosier Acquisition Sub"), The ▇▇▇▇▇
Company, a Maryland corporation ("Terrapin" and, together with Wallaby and
Hoosier, the "Parent Entities"; the Parent Entities are sometimes referred
to herein individually as the "Parent Entity"), and Terrapin Acquisition,
LLC, a Maryland limited liability company ("Terrapin Acquisition Sub" and,
together with Wallaby Acquisition Sub and Hoosier Acquisition Sub,
"Purchasers"; Purchasers are sometimes referred to herein individually as
"Purchaser").
RECITALS
A. Target and Purchasers believe that it is in the best interest of
Target, the Purchasers and their respective shareholders, that Purchasers
and Target enter into this Agreement pursuant to which Target will sell to
Purchasers, and Purchasers will purchase from Target, the Assets (as
hereinafter defined) upon the terms and subject to the conditions set forth
herein (the "Purchase").
B. Concurrently herewith, Target and Purchasers are entering into the
Protocol, pursuant to which Target will liquidate and distribute to
shareholders of Target the proceeds received by Target from the Purchase in
accordance with the terms thereof (the "Distribution") and (ii) Target,
Westfield Limited, Hoosier and Terrapin are entering into a Voting and
Support Agreement (the "Voting and Support Agreement") pursuant to which
Westfield Limited, on the terms and subject to the conditions thereof, has
agreed to vote in favor of the Purchase and the Distribution at an
extraordinary general meeting of holders of Ordinary Shares of Target
convened for such purpose.
C. Target will convene a meeting of its shareholders for the purpose
of obtaining the requisite shareholder approval for the Purchase and the
other transactions contemplated hereby.
D. Subject only to the closing of the Purchase and the receipt of the
proceeds of the Purchase by Target, Target shall as soon as legally
permissible and to the maximum extent permitted by Dutch law distribute the
proceeds from the Purchase to the shareholders of Target in accordance with
the Protocol.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Abbey Properties" means the assets and Subsidiaries of Abbey
Properties, LLC, a California limited liability company.
"Acquisition Proposal" has the meaning specified in Section 5.8.
"Additional Amount" has the meaning specified in Section 2.2(a).
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" means this Purchase Agreement among Target, Purchasers and
the Parent Entities (including the Exhibits and the Schedules hereto) and
all amendments hereto made in accordance with the provisions of Section
9.9.
"Anchor Tenant Lease" means any lease or other agreement between a
Target Property Owner and a so-called anchor tenant.
"▇▇▇▇▇▇▇▇ Letter" has the meaning specified in Section 5.2(c).
"Annual Accounts" means the annual accounts of Target (consisting of a
profit and loss account, balance sheet and explanatory notes thereto and
all other documents and statements thereto) and a consolidated auditors
report, determined in accordance with Dutch GAAP.
"Assets" means (i) the properties and assets identified on Exhibit A
and (ii) except as otherwise designated by Purchasers prior to Closing, all
other assets, properties and rights of every kind owned by any Target
Non-Purchased Entity (including, without limitation, any equity interests
owned directly or indirectly by Target in any other Target Non-Purchased
Entity) known or unknown, fixed or unfixed, accrued, absolute, contingent
or otherwise, whether or not specifically referred to in this Agreement
including, without limitation, the Target Intangible Property and the
Target Tangible Personal Property, other than the Retained Assets.
"Assumed Liabilities" has the meaning specified in Section 2.3(a).
"Assumed Taxes" has the meaning specified in Section 6.1.
"Assumption Agreement" has the meaning specified in Section 2.5(c).
"Australian Amount" means 0.498515% of the amount distributable solely
in respect of the common stock of Hexalon in connection with the
liquidation contemplated by the Protocol, which shall in no event exceed
Euro 7,300,000.
"Australian Interests" means the equity interests owned in the
companies listed under such heading on Section 1.1 of the Target Disclosure
Letter.
"BI" means an investment institution (Beleggingsinstelling) within the
meaning of Article 28 of the Dutch Corporation Tax Law.
"Books and Records" means all books and records, including without
limitation, books, archival materials, manuals, price lists, mailing lists,
lists of customers, sales and promotional materials, software, purchasing
materials, personnel records, quality control records and procedures,
business and strategic plans, financial and accounting records, Tax
records, environmental records and litigation files (regardless of the
media in which stored), in each case principally relating to or used by
Target or any Target Subsidiary.
"Break-Up Expenses" has the meaning specified in Section 9.2(d).
"Break-Up Fee" has the meaning specified in Section 9.2(c).
"Business Day" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by Law to be closed in New
York, New York or in The Netherlands.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended.
"Closing" has the meaning specified in Section 2.4.
"Closing Date" has the meaning specified in Section 2.4.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" has the meaning specified in Section 5.1(b)(iii).
"Confidentiality Agreements" has the meaning specified in Section
5.3(a).
"Disposal Agreement" has the meaning specified in Section 5.10.
"Disposal Property" has the meaning specified in Section 5.10.
"Distribution" has the meaning specified in the Recitals to this
Agreement.
"Dutch GAAP" means Dutch generally accepted accounting principles and
practices in effect from time to time applied consistently throughout the
periods involved.
"Dutch Law" means the laws of The Netherlands, including regulations
of Euronext Amsterdam N.V.
"EC Merger Regulations" means Counsel regulation (EEC) No. 4064/89 of
December 21, 1989 on the Control of Concentrations Between Undertakings, OJ
(1989) L 395/1 and the regulations and decisions of the Councilor
Commission of the European Community or other organs of the European Union
or European Community implementing such regulations.
"Encumbrance" means all pledges, claims, liens, charges, restrictions,
controls, encumbrances and security interests of any kind or nature
whatsoever.
"Enterprise Chamber" means the Enterprise Chamber
("Ondernemingskamer") of the Amsterdam Court of Appeals.
"Environmental Law" means any Law of any Governmental Entity, with
jurisdiction over the Target Subsidiaries, relating to the protection of
human health, natural resources or the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro" means the single currency of participating member states of the
European Monetary Union.
"European Commission" means the Commission of European Communities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Liabilities" has the meaning specified in Section 2.3(b).
"Excluded Taxes" has the meaning set forth in Section 6.1.
"Existing Title Policies" has the meaning specified in Section 3.9(a).
"Expense Amount" has the meaning specified in Section 9.2(h).
"Governmental Entity" means any United States federal, state or local
or any Dutch or other foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body including, without limitation, the Enterprise
Chamber and the Dutch Central Bank.
"Hazardous Material" means (i) any petroleum or petroleum products,
radioactive materials, asbestos-containing materials, urea formaldehyde
foam insulation and polychlorinated biphenyls ("PCBs"); (ii) any chemicals,
materials, substances or wastes which are defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous wastes," "restricted hazardous wastes,"
"toxic substances," "toxic pollutants," "pollutant," "contaminant" or words
of similar import, or regulated as such, under any Environmental Law or for
which a person may be subject to liability under any Environmental Law.
"Hexalon" means Hexalon Real Estate, Inc., a Delaware corporation and
a Target Subsidiary.
"Hoosier" has the meaning specified in the introductory paragraph to
this Agreement.
"Hoosier Acquisition Sub" has the meaning specified in the
introductory paragraph to this Agreement.
"Hoosier Confidentiality Agreement" has the meaning specified in
Section 5.3(a).
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"H&T Assumed Liabilities" has the meaning specified in Section
5.11(f).
"H&T Assumption Agreement" has the meaning specified in Section
2.5(d).
"Indemnified Parties" has the meaning specified in Section 5.11(a).
"Indemnifying Parties" has the meaning specified in Section 5.11(a).
"Invasive Testing" has the meaning specified in Section 5.3(b).
"Investigation" has the meaning specified in Section 5.3(a).
"IRS" means the United States Internal Revenue Service.
"Joint Ventures" means the entities and properties managed or
controlled by the Persons or any Affiliate of such Persons set forth on
Schedule 1.1 to the Target Disclosure Letter.
"JV Interests" has the meaning specified in Section 3.4(b).
"Key Employee" means those individuals set forth on Section 5.7 of the
Target Disclosure Letter.
"Knowledge", or any similar expression, means with respect to Target
(or any Target Subsidiary), the actual knowledge of the persons set forth
on Schedule 1.1 to the Target Disclosure Letter.
"Law" means any statute, law, regulation, order, interpretation,
permit, license, approval, authorization, rule or ordinance of any
Governmental Entity applicable to the Purchaser Parties or Target or any of
their respective Subsidiaries.
"Leased Properties" has the meaning specified in Section 3.9(a).
"Losses" has the meaning specified in Section 5.11(a).
"Loyens Tax Opinion" has the meaning specified in Section 5.2(d).
"Majority Acquisition Proposal" has the meaning specified in Section
9.2(b).
"Material Contracts" means (i) any loan agreement, indenture, note,
bond, debenture, mortgage or any other document, agreement or instrument
evidencing a capitalized lease obligation or other indebtedness to any
Person, other than indebtedness in a principal amount less than $1,000,000,
and (ii) each commitment, contractual obligation, capital expenditure or
transaction entered into by Target or any Target Subsidiary which may
result in total payments by or liability of Target or any Target Subsidiary
in excess of $1,000,000, other than the Target Ground Leases; provided,
however, any contract, agreement or other arrangement under clause (ii)
above that, by its terms, is terminable within 30 days (without termination
fee or penalty) of the date of this Agreement shall not be deemed to be a
Material Contract.
"Necessary Consents" has the meaning specified in Section 7.1(d).
"Non-Covered Employees" means those employees of Target or of any
Target Subsidiary that are regularly scheduled to work at least 30 hours
per week and that are not party to or otherwise covered by a Target
Employment Agreement.
"Non-Financial Covenants" has the meaning specified in Section
2.3(b)(iv).
"Oakbrook Contract" has the meaning specified in Section 5.1(a).
"Ordinary Dividend" has the meaning specified in Section 5.1(b)(ii).
"Ordinary Dividend Amount" means an amount equal to ninety percent
(90%) of the Net Profit as reflected on the Target's audited financial
statements for the ten month period ended December 31, 2001.
"Ordinary Shares" means the ordinary shares in the capital of Target,
par value Euro 8 per share.
"Owned Properties" has the meaning specified in Section 3.9(a).
"Parent Entity" and "Parent Entities" have the meanings specified in
the introductory paragraph to this Agreement.
"Per Share Consideration" means the quotient of (a) the Purchase Price
minus the Australian Amount over (b) 45,092,131 Ordinary Shares.
"Perimeter Mall" means that certain Target Property generally known as
Perimeter Mall.
"Permitted Encumbrances" has the meaning specified in Section 3.9(a).
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
"Personal Property" has the meaning specified in Section 3.9(j).
"Pro Forma Tax Returns" has the meaning specified in Section 5.2(f).
"Property Agreements" has the meaning specified in Section 3.9(d).
"Protocol" means the Distribution and Liquidation Protocol, dated the
date hereof, among Purchasers, the Parent Entities and Target.
"Purchase" has the meaning specified in the Recitals to this
Agreement.
"Purchase Price" has the meaning specified in Section 2.2(a).
"Purchaser" and "Purchasers" have the meanings specified in the
introductory paragraph to this Agreement.
"Purchaser Designee" has the meaning specified in Section 2.1.
"Purchaser Parties" shall mean, collectively, the Purchasers and the
Parent Entities.
"Purchasers' Representatives" has the meaning specified in Section
5.3(a).
"Reduced Break-Up Fee Expenses" has the meaning specified in Section
9.2(d).
"REIT" means a real estate investment trust within the meaning of
Section 856 of the Code.
"Release" means any past or present release, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, leaching,
dispersing, migrating, dumping or disposing into the indoor or outdoor
environment (including, without limitation, ambient air, surface water,
groundwater, and surface or subsurface strata) or into or out of any
property, including the movement of Hazardous Material through or into the
air, soil, surface water, or groundwater.
"Rent Roll" has the meaning specified in Section 3.9(i).
"Retained Assets" means the Purchase Price, any proceeds thereof, any
rights of Target under the Transaction Documents and any equity interests
in the Target Non-Purchased Entities.
"RoPro Assets" means those certain assets owned directly or indirectly
by RoProperty Services BV, a private company with limited liability with
its corporate seat in Rotterdam.
"SAR" has the meaning specified in Section 5.7(d).
"SEC" means the United States Securities and Exchange Commission.
"Section 754 Election" has the meaning specified in Section 5.6.
"Securities Act" means the Securities Act of 1933, as amended.
"745 Property" means that certain Target Property located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
"Severance Base" has the meaning specified in Section 5.7(a).
"Severance Payment" has the meaning specified in Section 5.7(a).
"Shareholders Meeting" has the meaning specified in Section 5.12(a).
"Space Lease" means any lease or other occupancy agreement affecting a
Target Property.
"Subsidiary" of any Person means any corporation, partnership, limited
liability company, joint venture or other legal entity of which such Person
(either directly or through or together with another Subsidiary of such
Person) (i) owns more than 50% of the voting stock or value of such
corporation, partnership, limited liability company, joint venture or other
legal entity, or (ii) otherwise has the ability to elect a majority of the
directors, trustees or managing members thereof.
"Superior Proposal" has the meaning specified in Section 5.8.
"Target" has the meaning specified in the introductory paragraph to
this Agreement.
"Target Disclosure Letter" means the disclosure letter dated as of the
date of this Agreement and delivered to Purchasers in connection with the
execution hereof.
"Target Employee Benefit Plans" has the meaning specified in Section
3.15(c) and are listed in Section 3.15 of Target Disclosure Letter.
"Target Employment Agreements" has the meaning specified in Section
3.15(r).
"Target ERISA Affiliate" has the meaning specified in Section 3.15(a).
"Target Filings" means the most recent Annual Report and Semi-Annual
Report filed or published by Target with the Chamber of Commerce of
Rotterdam prior to the date hereof.
"Target Financial Advisor" means ▇.▇. ▇▇▇▇▇▇ Securities Inc.
"Target Ground Leases" has the meaning specified in Section 3.9(a).
"Target Intangible Property" has the meaning specified in Section
3.18.
"Target Material Adverse Effect" means a material adverse effect on
the business, properties, liabilities, financial condition or results of
operations of Target and the Target Subsidiaries, taken as a whole,
excluding the effect of (i) general changes in the economy or financial
markets of the United States or any other region outside of the United
States, (ii) changes in Law that affect real estate investment trusts
generally, unless such changes have a materially disproportionate effect,
relative to other industry participants, on Target and the Target
Subsidiaries, taken as a whole, and (iii) changes that affect the retail
industry or retail real estate properties generally, unless such changes
have a materially disproportionate effect, relative to other industry
participants, on Target and the Target Subsidiaries, taken as a whole.
"Target Minimum Amount" has the meaning specified in Section 8.1(k).
"Target Non-Purchased Entities" means Target and the Target
Subsidiaries which are not to be purchased by Purchasers pursuant to this
Agreement and which are set forth on Schedule 1.1 to the Target Disclosure
Letter.
"Target Non-Subsidiary Entity" means any Person in which Target or any
Target Subsidiary owns, directly or indirectly, any equity or similar
interests, or any interest convertible into or exchangeable or exercisable
for any equity or similar interests, other than a Target Subsidiary, the
Joint Ventures and any publicly traded entity in which Target or any Target
Subsidiary beneficially owns less than one percent (1%) of any class or
securities of such entity.
"Target Organizational Documents" has the meaning specified in Section
3.1.
"Target Pension Plans" has the meaning specified in Section 3.15(a).
"Target Permits" has the meaning specified in Section 3.12.
"Target Properties" has the meaning specified in Section 3.9(a).
"Target Property Owner" means, each Target Subsidiary and any other
entity, other than the Joint Ventures, which directly owns any Target
Property.
"Target Property Restrictions" has the meaning specified in Section
3.9(b).
"Target Purchased Subsidiaries" means the Subsidiaries of Target which
are to be purchased by Purchasers pursuant to this Agreement.
"Target Representatives" has the meaning specified in Section 5.8.
"Target Shareholder Approval" means has the meaning specified in
Section 7.1(a).
"Target Subsidiaries" means all of the Subsidiaries of Target.
"Target Tangible Personal Property" means all of the tangible property
owned or leased by a Target Property Owner in, on, attached to, appurtenant
to, or used in the operation or maintenance of, a Target Property,
including, without limitation, any and all appliances, furniture,
carpeting, draperies, curtains, tools and supplies, plans, specifications
and drawings for such Target Property and Personal Property.
"Tax" or "Taxes" means any and all taxes, fees, levies, duties,
tariffs, imposts, and other charges of any kind (together with any and all
interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any foreign, U.S., state and local government
or taxing authority, including, without limitation: taxes or other charges
on or with respect to income, alternative minimum tax, franchises, windfall
or other profits, gross receipts, excess distributions, impositions,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth; taxes or
other charges in the nature of excise, surtax, tax imposed under Article
IV. B. Invoeringswet Inkomstenbelasting 2001, withholding, ad valorem,
stamp, transfer, mortgage recording, value added, or gains taxes; license,
registration and documentation fees; and customs' duties, tariffs, and
similar charges.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"Terminating Purchasers Breach" has the meaning specified in Section
8.1(f).
"Terminating Target Breach" has the meaning specified in Section
8.1(e).
"Termination Date" has the meaning specified in Section 8.1(j).
"Terrapin" has the meaning specified in the introductory paragraph to
this Agreement.
"Terrapin Acquisition Sub" has the meaning specified in the
introductory paragraph to this Agreement.
"Third Party" means any Person other than Purchasers and their
respective Affiliates.
"Transaction Documents" has the meaning specified in Section 3.3(a).
"Transfer and Gains Taxes" means any real property transfer or gains,
sales, use, transfer, mortgage recording, intangible, value added, stock
transfer and stamp Taxes, any transfer, recording, registration and other
fees and any similar Taxes which become payable in connection with the
transactions contemplated by this Agreement, together, with any related
interests, penalties or additions to Tax.
"Triggered Loans" means those loans identified as "Triggered Loans" in
Section 3.3 of the Target Disclosure Letter.
"2001 Incentive Program" has the meaning specified in Section 5.7(d).
"2001 SAR Plan" has the meaning specified in Section 5.7(d).
"United States GAAP" means United States generally accepted accounting
principles and practices in effect from time to time applied consistently
throughout the periods involved.
"Urban Tax Indemnification Agreement" means that certain Tax
Indemnification and Contest Agreement, dated as of November 8, 2000, among
Urban Shopping Centers, L.P., Head Acquisition, L.P., Hexalon Real Estate,
Inc. and the holders of Class A Common Units of Urban Shopping Centers,
L.P. signatory thereto.
"Voting Debt" shall mean bonds, debentures, notes or other
indebtedness having the right to vote (or convertible into, or exchangeable
for, securities having the right to vote) on any matters on which holders
of equity interests in Target, any Target Subsidiary or Purchasers, as
applicable, may vote.
"Voting and Support Agreement" has the meaning specified in the
Recitals to this Agreement.
"Voting Trust" means Stichting RNA, a non-profit foundation having its
registered seat in Rotterdam.
"Voting Trust Redemption" means the purchase from the Voting Trust of
all of its shares of Target issued to the Voting Trust pursuant to the
Agreement Regarding the Acquisition of Shares in Target, dated September
23, 2001, between Target and the Voting Trust, as in effect as of the date
hereof.
"Wallaby" has the meaning specified in the introductory paragraph to
this Agreement.
"Wallaby Acquisition Sub" has the meaning specified in the
introductory paragraph to this Agreement.
"WARN" has the meaning specified in Section 5.7(a).
"Westfield Designee" has the meaning specified in Section 5.12(a).
SECTION 1.2. Construction. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, including all exhibits and schedules, as the same may from time to
time be amended, restated, modified or supplemented, and not to any
particular section, subsection or clause contained in the Agreement or any
such exhibit or schedule. Wherever from the context it appears appropriate,
each term stated in either the singular or plural shall include the
singular and the plural, and pronouns stated in the masculine, feminine and
neuter genders shall include the masculine, feminine and neuter genders.
The words "including", "includes" and "include" shall be deemed to be
followed by the words "without limitation".
ARTICLE II
PURCHASE AND SALE; ASSUMPTION OF LIABILITIES
SECTION 2.1. Purchase and Sale of Assets. On the terms and subject to
the conditions set forth in this Agreement, Target shall (or shall cause
the appropriate Target Subsidiary or Affiliate of Target or Target
Subsidiary, as directed by Purchasers to), at the Closing, sell, assign,
transfer, convey and deliver to Purchasers (or to one or more designees of
Purchasers designated by Purchasers), and Purchasers (or to one or more
designees of Purchasers designated by Purchasers (each a "Purchaser
Designee")) shall purchase, from Target (or the appropriate Target
Subsidiary or Affiliate of Target or Target Subsidiary, as directed by
Purchasers), on the Closing Date, the Assets.
SECTION 2.2. Purchase Price; Manner of Payment.
(a) The aggregate purchase price (the "Purchase Price") for the
Assets shall be the cash sum of Euro 2,480,067,205 less the full amount of
any distributions declared and paid or payable to Target's shareholders
after the date hereof and prior to the Closing (including the Ordinary
Dividend) plus the Australian Amount plus the Additional Amount (as
hereinafter defined). "Additional Amount" means an amount in Euros equal
to, if the Closing occurs on or after May 16, 2002, the product of (x)
Euro 622,642 times (y) the number of days from and after May 1, 2002 until
the Closing Date. The Australian Amount shall be paid to Target in respect
of the Australian Interests or such other Assets as Purchasers designate
(other than Assets owned directly or indirectly by Hexalon).
(b) At the Closing, Purchasers shall pay to the applicable
sellers of assets owned by Target or Target Subsidiaries their respective
shares of the Purchase Price (as reflected in the final Pro Forma Tax
Returns) by wire transfer in immediately available funds, to an account or
accounts designated at least two (2) Business Days prior to the Closing
Date by Target in a written notice to Purchasers.
(c) The Purchase Price shall be denominated in Euros and shall
not be subject to any adjustment based on currency fluctuations.
SECTION 2.3. Assumption of Liabilities.
(a) On the terms and subject to the conditions set forth in this
Agreement, at the Closing, Purchasers and the Purchaser Designees shall
assume, and thereafter pay and fully satisfy and perform when due in
accordance with their respective terms, all liabilities and obligations of
the Target Non-Purchased Entities, whether known or unknown, contingent or
otherwise and whether arising or relating to any act or omission occurring
before, on or after the Closing Date, other than the Excluded Liabilities
and the H&T Assumed Liabilities (such liabilities being referred to herein
collectively as the "Assumed Liabilities"), including without limitation,
the following:
(i) all obligations and liabilities of Target or any Target
Subsidiary to indemnify and to maintain directors' and officers'
liability insurance with respect to the directors, officers,
employees, fiduciaries and agents of Urban Shopping Centers, Inc. and
Urban Shopping Centers, L.P. to the extent required by Section 6.8 of
that certain Agreement and Plan of Merger dated as of September 25,
2000, by and among Target, Hexalon, Head Acquisition, L.P., Head
Acquisition, Corp., Urban Shopping Centers, Inc. and Urban Shopping
Centers, L.P.;
(ii) all obligations and liabilities of Hexalon, Urban
Shopping Centers, L.P. and Head Acquisition, L.P. pursuant to the
Urban Tax Indemnification Agreement; and
(iii) all obligations and liabilities in respect of Assumed
Taxes in accordance with Article VI hereof.
(b) Notwithstanding the foregoing, Purchasers, the Purchaser
Designees and the Parent Entities shall not assume or be bound by any of
the following liabilities or obligations of Target or any of the Target
Non-Purchased Entities (the "Excluded Liabilities"):
(i) except as provided in Section 2.3(b)(ii), liabilities
that arise after the Closing Date in respect of (A) any operations or
activities of any Target Non-Purchased Entity that occur after the
Closing Date or (B) any Retained Assets;
(ii) liabilities that arise from any act or omission of any
agent, officer, managing or supervisory director or employee of Target
or any Target Non-Purchased Entity that occurs after the Closing Date,
other than liabilities (other than Excluded Taxes) that arise out of
the good faith actions of any agent, officer, employee or managing or
supervisory director of any Target Non-Purchased Entity taken, and
reasonably necessary to effect the distribution of the Purchase Price
to Target's shareholders in accordance with the terms and conditions
of the Protocol;
(iii) all obligations and liabilities in respect of Excluded
Taxes; and
(iv) (A) Sections 4.5(d) and 7.5 of the Third Amended and
Restated Agreement of Limited Partnership of Urban Shopping Centers,
L.P. and the related undertakings by Hexalon and Target, (B) Section
10.1 of the Amended and Restated General Partnership Agreement of
KI-Kravco Associates, by and among Kravco, Inc. and ▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇; and Section 10.1 of the Third Amended
and Restated General Partnership Agreement of Kravco Company, by and
among Kravco, Inc. and RNA- Kravco III, Inc., dated November 12, 1998
and (C) any other covenants restricting the ability of any Target
Non-Purchased Entity from conducting business in any manner or
location (clauses (A), (B) and (C) collectively, the "Non-Financial
Covenants").
SECTION 2.4. Closing. Subject to the terms and conditions of this
Agreement, the purchase and sale of the Assets shall take place at a
closing (the "Closing") to be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M. eastern
time on the date which is two (2) Business Days after the date on which the
conditions set forth herein with respect thereto shall be satisfied or duly
waived, or at such other place or at such other time or on such other date
as Target and Purchasers may mutually agree upon in writing (the day on
which the Closing takes place being the "Closing Date").
SECTION 2.5. Closing Deliveries by Target. At the Closing, Target
shall deliver or cause to be delivered to Purchasers or their designees:
(a) With respect to the Assets that are capital stock, stock
certificates evidencing the same duly endorsed in blank, or accompanied by
stock powers duly executed in blank, in form and substance satisfactory to
Purchasers;
(b) With respect to Assets other than capital stock, a ▇▇▇▇ of
sale, such deeds and any other documents as are necessary to effect the
transfer of such Assets to Purchasers (or to Purchaser Designees) in a
manner and in form and substance satisfactory to Purchasers;
(c) an assumption agreement effecting Purchasers' and the
Purchaser Designees' assumption of the Assumed Liabilities in form and
substance satisfactory to Target (the "Assumption Agreement");
(d) an assumption agreement effecting Hoosier and Terrapin's
assumption of the H&T Assumed Liabilities in form and substance
satisfactory to Target (the "H&T Assumption Agreement");
(e) the Necessary Consents required to be delivered pursuant to
Section 7.1(d); and
(f) the Books and Records.
SECTION 2.6. Closing Deliveries by Purchasers. At the Closing,
Purchasers shall deliver or cause to be delivered to Target:
(a) the Purchase Price in the manner and denomination described
in Section 2.2;
(b) the Assumption Agreement; and
(c) the H&T Assumption Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TARGET
As an inducement to the Purchaser Parties to enter into this
Agreement, Target hereby represents and warrants to the Purchaser Parties
as follows (provided, that for purposes of Article III only, each Target
Non-Subsidiary Entity shall be deemed to be a Target Subsidiary except that
each representation and warranty as to such Target Non-Subsidiary Entity
shall only be made to the Knowledge of Target; provided, further, that
notwithstanding anything herein to the contrary, Target does not make any
representations and warranties regarding the Joint Ventures other than in
Section 3.4(b) and Section 3.10 as to the ownership of the JV Interests):
SECTION 3.1. Organization, Standing and Corporate Power of Target.
Target is a corporation duly incorporated and validly existing under Dutch
Law and has the requisite corporate power, authority and all necessary
government approvals or licenses to own, lease and operate its properties
and to carry on its business as now being conducted. Target is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of the business it is conducting, or the
ownership, operation or leasing of its properties or the management of
properties for others 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 reasonably be
expected to have a Target Material Adverse Effect. Target has heretofore
made available to Purchasers complete and correct copies of Target's
articles of association (the "Target Organizational Documents"). The Target
Organizational Documents are in full force and effect as of the date
hereof. Each jurisdiction in which Target is qualified or licensed to do
business is identified in Section 3.1 of the Target Disclosure Letter.
SECTION 3.2. Target Subsidiaries.
(a) Each Target Subsidiary that is a corporation is duly
incorporated, validly existing and, where applicable, in good standing
under the Laws of its jurisdiction of incorporation and has the requisite
corporate power, authority and all necessary government approvals and
licenses to own, lease and operate its properties and to carry on its
business as now being conducted, except where the failure to have such
approvals or licenses, individually or in the aggregate, would not
reasonably be expected to have a Target Material Adverse Effect. All
outstanding shares of stock of each Target Subsidiary that is a corporation
have been duly authorized, are validly issued, fully paid and
nonassessable, and are not subject to any rights of first offer, rights of
first refusal, tag-along rights or any other preemptive rights and are
owned by Target and/or another Target Subsidiary and, except as disclosed
in Section 3.2(a) of the Target Disclosure Letter, are so owned free and
clear of all Encumbrances.
(b) Each Target Subsidiary that is a partnership, limited
liability company or trust is duly organized, validly existing and, where
applicable, in good standing under the Laws of its jurisdiction of
organization and has the requisite power, authority and all necessary
government approvals and licenses to own, lease and operate its properties
and to carry on its business as now being conducted, except where the
failure to have such approvals or licenses, individually or in the
aggregate, would not reasonably be expected to have a Target Material
Adverse Effect. All equity interests in each Target Subsidiary that is a
partnership, limited liability company, trust or other entity have been
duly authorized and are validly issued and are owned by Target and/or
another Target Subsidiary and, except as disclosed in Section 3.2(b) of the
Target Disclosure Letter, are so owned free and clear of all Encumbrances.
(c) Each Target Subsidiary is duly qualified or licensed to do
business and is, where applicable, in good standing in each jurisdiction in
which the nature of its business or the ownership, operation or leasing of
its properties or the management of properties for others 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 reasonably be expected to have a Target Material
Adverse Effect.
(d) Except as set forth in Section 3.2(d) of the Target
Disclosure Letter, there are no outstanding options, warrants or other
rights to acquire ownership interests from any Target Subsidiary. Target
has heretofore made available to Purchasers complete and correct copies of
the charter, by-laws, partnership agreements, operating agreements or other
organizational documents of each of the Target Subsidiaries, each as
amended to date, and each such instrument or agreement is in full force and
effect as of the date hereof. Section 3.2(d) of the Target Disclosure
Letter sets forth (i) all Target Subsidiaries and their respective
jurisdictions of incorporation or organization, (ii) each owner and the
respective amount of such owner's equity interest in each Target Subsidiary
and (iii) a list of each jurisdiction in which each Target Subsidiary is
qualified or licensed to do business and each assumed name under which each
such Target Subsidiary conducts business in any jurisdiction. Except as set
forth in Section 3.2(d) of the Target Disclosure Letter, Target does not
directly or indirectly own any equity or similar interests in any other
Person, or any interest convertible into or exchangeable or exercisable for
any equity or similar interests in any other Person.
SECTION 3.3. Authority; No Violations; Consents and Approval.
(a) Target has all requisite corporate power and authority to
enter into this Agreement and all other documents to be executed by Target
in connection with the transactions contemplated hereby, and by the
Protocol and by the Voting and Support Agreement (collectively, the
"Transaction Documents") and to consummate the transactions contemplated
hereby and thereby, subject, solely with respect to the consummation of the
Purchase and the Distribution, to receipt of the Target Shareholder
Approval. Each Target Subsidiary that is a party to any Transaction
Document has all requisite power and authority to enter into such
Transaction Document and to consummate the transactions contemplated
thereby. The execution and delivery of the Transaction Documents and the
consummation of the transactions contemplated hereby or thereby have been
duly authorized by all necessary action on the part of Target and each
applicable Target Subsidiary, subject, solely with respect to the
consummation of the Purchase, to receipt of the Target Shareholder
Approval. The Transaction Documents have been duly executed and delivered
by Target and each applicable Target Subsidiary and constitute legal, valid
and binding obligations of Target and each applicable Target Subsidiary,
enforceable against Target and each Target Subsidiary in accordance with
their terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other Laws of general
applicability relating to or affecting creditors' rights and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at Law).
(b) Except as set forth in Section 3.3(b) of the Target
Disclosure Letter, the execution and delivery of the Transaction Documents
by Target and each applicable Target Subsidiary do not, and the
consummation of the transactions contemplated hereby or thereby, and
compliance with the provisions hereof or thereof, will not, conflict with,
or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any material obligation, or the loss of a
material benefit under, or give rise to a right of purchase, first offer or
forced sale, under, result in the creation of any Encumbrance upon any of
the properties or assets of Target or any of the Target Subsidiaries under,
require the consent or approval of any third party or otherwise result in a
material detriment or default to Target or any of the Target Subsidiaries
under, any provision of (i) the Target Organizational Documents or any
provision of the comparable charter or organizational documents (including
any operating agreement or limited partnership agreement) of any Target
Subsidiary, (ii) any loan or credit agreement or note, except for the
Triggered Loans or any bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to Target
or any Target Subsidiary, or their respective properties or assets or any
guarantee by Target or any Target Subsidiary of any of the foregoing, (iii)
any joint venture or other ownership arrangement or any Material Contract
or (iv) assuming the consents, approvals, authorizations or permits and
filings or notifications referred to in Section 3.3(c) are duly and timely
obtained or made and the Target Shareholder Approval has been obtained, any
judgment, order, decree, statute, Law, ordinance, rule or regulation
applicable to Target or any Target Subsidiary, or any of their respective
properties or assets, other than, in the case of clauses (ii) and (iii),
any such conflicts, violations, defaults, rights, Encumbrances or
detriments that, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect.
(c) Except as set forth in Section 3.3(c) of the Target
Disclosure Letter, no consent, approval, order or authorization of, or
registration, declaration or filing with, or permit from, any Governmental
Entity, is required by or on behalf of Target or any of the Target
Subsidiaries in connection with the execution and delivery of the
Transaction Documents by Target and each of the applicable Target
Subsidiaries or the consummation by Target or the applicable Target
Subsidiaries of the transactions contemplated hereby or thereby, except
for: (i) the filings, approvals, consents and confirmations expressly
contemplated by the Protocol; (ii) such filings and approvals as may be
required by any applicable Environmental Laws as more specifically
described in Section 3.3 of the Target Disclosure Letter; (iii) the filing,
if applicable, of a pre-merger notification and report by Target under the
HSR Act, and the expiration or termination of the applicable waiting period
thereunder; and (iv) any such consent, approval, order, authorization,
registration, declaration, filing or permit that the failure to obtain or
make individually or in the aggregate, would not reasonably be expected to
have a Target Material Adverse Effect.
SECTION 3.4. Capital Structure.
(a) The authorized capital of Target consists of 219,656,590
Ordinary Shares, of which 14,700,000 Ordinary Shares are held by the Voting
Trust and 45,092,131 Ordinary Shares are held by other holders and are
issued and outstanding.
(b) Except as set forth in Section 3.4(b) of the Target
Disclosure Letter, Target or the applicable Target Subsidiary owns all
Assets (including the equity interests in the Joint Ventures (the "JV
Interests")), free and clear of any Encumbrance, preemptive rights, call
rights, assessments or other adverse interest of any kind or nature
whatsoever; provided, however, that no representation under this Section
3.4(b) is made with respect to the 745 Property or Perimeter Mall.
(c) Except as set forth in Sections 3.4(a) hereof or in Section
3.4(c) of the Target Disclosure Letter, there are issued and outstanding or
reserved for issuance: (i) no Ordinary Shares, shares of stock, Voting Debt
or other voting securities of Target; (ii) no restricted shares of Target
or any Target Subsidiary, performance share awards or dividend equivalent
rights relating to the equity interests of Target or any Target Subsidiary,
(iii) no securities of Target or any Target Subsidiary or securities or
assets of any other entity convertible into or exchangeable for Ordinary
Shares, shares of stock, Voting Debt or other voting securities of Target
or any Target Subsidiary; and (iv) no subscriptions, options, warrants,
conversion rights, stock appreciation rights, calls, claims, rights of
first refusal, rights (including preemptive rights), commitments,
arrangements or agreements to which Target or any Target Subsidiary is a
party or by which it is bound in any case obligating Target or any Target
Subsidiary to issue, deliver, sell, purchase, redeem or acquire, or cause
to be issued, delivered, sold, purchased, redeemed or acquired, additional
Ordinary Shares, shares of stock, Voting Debt or other voting securities of
Target or of any Target Subsidiary, or obligating Target or any Target
Subsidiary to grant, extend or enter into any such subscription, option,
warrant, conversion right, stock appreciation right, call, right,
commitment, arrangement or agreement. All outstanding Ordinary Shares and
other shares of stock of Target and each Target Subsidiary are, and all
shares reserved for issuance will be, upon issuance in accordance with the
terms specified in the instruments or agreements pursuant to which they are
issuable, duly authorized, validly issued, fully paid and nonassessable and
not subject to or issued in violation of, any preemptive right, purchase
option, call option, right of first refusal, subscription or any other
similar right.
(d) Except as set forth in Section 3.4(d) of the Target
Disclosure Letter, all dividends or distributions on securities of Target
or any Target Subsidiary that have been declared or authorized prior to the
date of this Agreement have been paid in full.
(e) Except for the Transaction Documents and except as set forth
in Section 3.4(e) of the Target Disclosure Letter, there are not any (i)
stockholder agreements, voting trusts, proxies or other agreements or
understandings relating to the voting of any shares of stock of Target or
(ii) agreements or understandings relating to the sale or transfer
(including agreements imposing transfer restrictions) of any Ordinary
Shares of Target or any ownership interests in any Target Subsidiary, to
which Target or any Target Subsidiary is a party or by which it is bound.
Except as set forth in Section 3.4(e) of the Target Disclosure Letter,
there are no restrictions on Target's ability to vote the equity interests
of any of the Target Subsidiaries.
(f) Except as set forth in Section 3.4(f) of the Target
Disclosure Letter, no holder of securities in Target or any Target
Subsidiary has any right to have such securities registered by Target or
any Target Subsidiary, as the case may be.
(g) Except as set forth in Section 3.4(g) of the Target
Disclosure Letter, there are not any Target Subsidiaries in which any
officer or director of Target or any Target Subsidiary owns any stock or
other securities. There are no agreements or understandings between Target
or any Target Subsidiary and any Person that could cause such Person to be
treated as holding any stock or security in Target or any Target Subsidiary
as an agent for, or nominee of, Target or any Target Subsidiary.
(h) Other than equity interests in the Target Non-Purchased
Entities, Target does not directly hold any equity interests in any Person
which is not listed on Exhibit A hereto.
SECTION 3.5. Financial Statements.
The audited consolidated balance sheet of Target and its Subsidiaries
as of February 28, 2001, the unaudited balance sheet of the Target and its
Subsidiaries as of August 31, 2001 and the audited balance sheet of Hexalon
as of December 31, 2000 fairly present the financial position of Target and
its Subsidiaries, and Hexalon, as the case may be, as of the dates thereof,
and the related statements of income, retained earnings and changes in
financial position for the fiscal periods ended on such dates fairly
present the results of operations and changes in financial position of
Target and its Subsidiaries and Hexalon, as the case may be, for the
respective periods indicated. All such financial statements of Target,
including the schedules and notes thereto, if any, were prepared in
accordance with Dutch GAAP applied consistently throughout the periods
involved, except that the unaudited financial statements may not be in
accordance with Dutch GAAP because of the absence of footnotes normally
contained therein and are subject to normal year-end adjustments which in
the aggregate will not be material. All such financial statements of
Hexalon, including the schedules and notes thereto, if any, were prepared
in accordance with United States GAAP applied consistently throughout the
periods involved, except as noted therein and the absence of footnotes
normally contained therein and are subject to normal year-end adjustments
which in the aggregate will not be material.
SECTION 3.6. [INTENTIONALLY OMITTED]
SECTION 3.7. Absence of Certain Changes or Events. Except as disclosed
or reflected in the Target Filings filed prior to the date of this
Agreement or as disclosed in Section 3.7 of the Target Disclosure Letter,
since February 28, 2001, Target and the Target Subsidiaries have conducted
their business only in the ordinary course and there has not been:
(a) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with respect to any
of Target's ordinary shares;
(b) any amendment of any term of any outstanding equity security
of Target or any Target Subsidiary;
(c) any repurchase, redemption or other acquisition by Target or
any Target Subsidiary of any outstanding ordinary shares or other equity
securities of, or other ownership interests in, Target or any Target
Subsidiary;
(d) any change in any method of accounting or accounting practice
or any material change in any tax method or election by Target or any
Target Subsidiary;
(e) any amendment of any employment, consulting, severance,
incentive stock, deferred compensation, bonus, retirement, retention or any
other agreement between (i) Target or any Target Subsidiary, on the one
hand and (ii) any officer or director of Target or any Target Subsidiary,
on the other hand;
(f) any change, event, effect, damage, destruction or loss
relating to the business or operations of Target or any Target Subsidiary
that has had, or would reasonably be expected to have, a Target Material
Adverse Effect; or
(g) any split, combination or reclassification of any of Target's
stock or any issuance or the authorization of any issuance of any other
securities in respect of, in lieu of or in substitution for, or giving the
right to acquire by exchange or exercise, shares of its stock or any
issuance of an ownership interest in, any Target Subsidiary.
SECTION 3.8. Environmental Matters. Except as disclosed in Section 3.8
of the Target Disclosure Letter and except as would not have a Target
Material Adverse Effect:
(a) No judicial, administrative or compliance order has been
issued that is still in effect, no complaint has been filed that has not
been resolved without further obligation, no penalty has been assessed that
has not been paid and no investigation or review is pending or, to the
Knowledge of Target, threatened by any Governmental Entity with respect to
any alleged failure by Target or any Target Subsidiary to comply with any
Environmental Law, including any alleged failure to have any Target Permit
required under any Environmental Law, or with respect to any treatment,
storage, recycling, transportation, disposal, Release or threatened Release
by or on behalf of Target or any Target Subsidiary, or on any property
owned, operated or leased by Target or any Target Subsidiary, of any
Hazardous Material;
(b) Neither Target nor any Target Subsidiary nor, to the Knowledge of
Target, any owner or lessee of any property owned, operated or leased by
Target or any Target Subsidiary, has used, generated, stored, treated or
handled any Hazardous Material on such property, except in compliance with
Environmental Laws. In addition: (i) there are no asbestos-containing
materials present on, in or under any property owned, leased or operated by
Target or any Target Subsidiary, (ii) there are no PCBs present on, in or
under any property owned, leased or operated by Target or any Target
Subsidiary and (iii) there are no underground storage tanks, active or
abandoned, used for the storage of Hazardous Materials currently present
on, in or under any property owned, leased or operated by Target or any
Target Subsidiary, except in each case where in compliance with
Environmental Laws;
(c) Target and the Target Subsidiaries have not received notice of a
claim, investigation, litigation, proceeding, notice of violation,
complaint, or request for information that has not been resolved without
further obligation, to the effect that it is or may be liable to a third
party, including a Governmental Entity, as a result of a Release or
threatened Release of a Hazardous Material, including exposure to any
Hazardous Material, at any property currently or formerly owned, leased or
operated by Target or a Target Subsidiary, and to the Knowledge of Target,
there is no reasonable basis for such claim, investigation, litigation,
proceeding, notice of violation, complaint, or request for information;
(d) None of Target, any Target Subsidiary and, to the Knowledge of
Target, any Third Party has transported or arranged for the transportation
of any Hazardous Material to any location which is the subject of any
action, suit or proceeding that could be reasonably expected to result in
claims against Target or any Target Subsidiary related to such Hazardous
Material for clean-up costs, remedial work, damages to natural resources or
personal injury claims, including, but not limited to, claims under CERCLA
and, to the Knowledge of Target, there is no reasonable basis for such
claim. To the Knowledge of Target, all Hazardous Material which has been
removed from any property owned, leased, or operated by Target or any
Target Subsidiary has been handled, transported and disposed of in
compliance with Environmental Laws and by handlers, transporters and to
facilities maintaining all required permits and licenses;
(e) There are no Encumbrances threatened or attached to any Target
Property arising under or pursuant to any applicable Environmental Law, and
no action of any Governmental Entity has been taken or, to the Knowledge of
Target, is in process which could subject any of such properties to such
Encumbrances;
(f) Neither Target nor any Target Subsidiary has entered into any
agreement to provide indemnification to any Third Parties pursuant to
Environmental Laws in relation to any property or facility currently or
previously owned, leased or operated by Target or a Target Subsidiary,
other than indemnity agreements in favor of lenders entered into in
connection with any loan or credit agreements;
(g) Neither Target nor any Target Subsidiary has in its possession or
control or knows of the existence of any environmental assessment or
investigation reports prepared within the last four years that have not
been provided to Purchasers prior to the execution of this Agreement;
(h) Each of the Target Properties and operations conducted thereon is
in compliance with all Environmental Laws and Target and all Target
Subsidiaries are in compliance with all Environmental Laws applicable to
any of their owned or leased properties; and
(i) There has been no Release or threatened Release of Hazardous
Material in violation of any Environmental Law or which would reasonably be
expected to result in liability on any property owned, leased or operated
by Target or any Target Subsidiary or, to the Knowledge of Target, on
adjacent parcels of real estate.
SECTION 3.9. Properties.
(a) Except as listed in Section 3.9(a) of the Target Disclosure
Letter, Target or a Target Property Owner owns fee simple title to each of
the real properties (or the applicable portion thereof) described on
Section 3.9(a) of the Target Disclosure Letter as being owned in fee
(collectively, the "Owned Properties"). Except as listed in Section 3.9(a)
of the Target Disclosure Letter, Target or a Target Property Owner has a
valid leasehold interest in each of the real properties (or the applicable
portion thereof) described on Section 3.9(a) of the Target Disclosure
Letter as being ground (or air-rights) leases or subleases (collectively,
the "Leased Properties" and, together with the Owned Properties,
collectively, the "Target Properties") pursuant to those certain ground (or
air-rights) leases or subleases (together with any amendments thereto,
collectively, the "Target Ground Leases") described on Section 3.9(a) of
the Target Disclosure Letter. The Target Properties are all of the real
properties owned or leased by Target and the Target Property Owners. The
interests of Target and the Target Property Owners in the Target Properties
are good, marketable and insurable and the same are owned free and clear of
Encumbrances except for (i) indebtedness for money borrowed and other
matters specifically identified in Section 3.9(a) of the Target Disclosure
Letter, (ii) inchoate Encumbrances imposed for construction work in
progress described on Section 3.9(a) of the Target Disclosure Letter or
otherwise incurred in the ordinary course of business that do not adversely
affect in any material respects the use or operation of the applicable
Target Property (together with clause (i), the "Permitted Encumbrances"),
(iii) Space Leases, reciprocal easement agreements and all matters
disclosed on the existing title policies which were previously provided (or
made available) to Purchaser ("Existing Title Policies"), matters as would
be disclosed on current title reports or surveys that arise in the ordinary
course and do not adversely affect in any material respects the use or
operation of the applicable Target Property or as disclosed in Section
3.9(a) of the Target Disclosure Letter and (iv) real estate Taxes and
special assessments not yet due and payable (except as is being contested
in good faith by appropriate proceedings and for which a reserve in
accordance with United States GAAP has been set forth in Section 3.9(a) of
the Target Disclosure Letter and on the books of Target or a Target
Property Owner, as applicable).
(b) Except as listed in Section 3.9(b) of the Target Disclosure Letter
or which, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect, the Target Properties
are not subject to any rights of way, restrictive covenants, written
agreements, Laws, ordinances and regulations affecting building use or
occupancy, or reservations of an interest in title (collectively, "Target
Property Restrictions"), except for (i) Target Property Restrictions
imposed or promulgated by Law with respect to real property, including
zoning regulations, (ii) the Space Leases, (iii) all matters disclosed on
the Existing Title Policies, matters as would be disclosed on current title
reports or surveys that arise in the ordinary course and do not adversely
affect in any material respects the use or operation of the applicable
Target Property or as disclosed in Section 3.9(b) of the Target Disclosure
Letter and (iv) real estate Taxes and special assessments not yet due and
payable. Except as listed in Section 3.9(b) of the Target Disclosure Letter
or which, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect, (i) each Target Property
complies with the Target Property Restrictions, (ii) neither Target nor any
Target Property Owner, nor, to the Knowledge of Target, any other party, is
currently in default or violation of any Target Property Restriction and
(iii) no event has occurred which, with due notice or lapse of time or
both, would constitute a default thereunder.
(c) Except as listed in Section 3.9(c) of the Target Disclosure
Letter, valid policies of title insurance have been issued insuring
Target's or a Target Property Owner's fee simple title or leasehold estate
to the Target Properties except as noted therein, and, to the Knowledge of
Target, such policies are in full force and effect and no claim has been
made against any such policy.
(d) Except as listed in Section 3.9(d) of the Target Disclosure Letter
or which, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect, to the Knowledge of
Target, there is no certificate, permit or license from any Governmental
Entity having jurisdiction over any of the Target Properties or any
agreement (including without limitation any reciprocal easement agreement),
easement or any other right which is necessary to permit the current use
and operation of the buildings and improvements on any of the Target
Properties or which is necessary to permit the current use and operation of
all driveways, roads and other means of egress and ingress to and from any
of the Target Properties (collectively, the "Property Agreements") that has
not been obtained and is not in full force and effect, or any pending
threat of modification or cancellation of any of same. Except as listed in
Section 3.9(d) of the Target Disclosure Letter or which, individually or in
the aggregate, would not reasonably be expected to have a Target Material
Adverse Effect, (i) neither Target nor any Target Property Owner, nor to
the Knowledge of Target, any other party, is currently in default or
violation of any Property Agreement and (ii) to the Knowledge of Target no
event has occurred which, with due notice or lapse of time or both, would
constitute a default or violation thereunder.
(e) Except as listed in Section 3.9(e) of the Target Disclosure Letter
or which, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect, neither Target nor any
Target Property Owner has received written notice of any violation of any
federal, state or municipal Law, ordinance, order, regulation or
requirement affecting any portion of any of the Target Properties issued by
any Governmental Entity that has not been heretofore remedied.
(f) Except as listed in Section 3.9(f) of the Target Disclosure Letter
or which, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect, neither Target nor any
Target Property Owner has received written notice to the effect that there
are any, and there are no, (i) condemnation or rezoning or proceedings that
are pending or, to the Knowledge of Target, threatened with respect to any
portion of any of the Target Properties; or (ii) zoning, building,
land-use, fire, safety and signage or other applicable Laws (including,
without limitation, the American With Disabilities Act) or orders that are
presently being violated or will be violated by the continued maintenance,
operation or use of any buildings or other improvements on any of the
Target Properties or by the continued maintenance, operation or use of the
parking areas.
(g) Except as listed in Section 3.9(g) of the Target Disclosure
Letter, neither Target nor any Target Property Owner is obligated under any
option, right of first refusal or other contractual right to sell, dispose
of or lease any of the Target Properties or other personal property or any
portion thereof or interest therein to any Person other than Purchasers.
(h) Each Target Ground Lease is valid, binding and enforceable against
Target (or any Target Property Owner, as applicable) and, to the Knowledge
of Target, the other parties thereto in accordance with its terms, and is
in full force and effect. Except as listed in Section 3.9(h) of the Target
Disclosure Letter or which, individually or in the aggregate, would not
reasonably be expected to have a Target Material Adverse Effect, (i) Target
has performed all obligations required to be performed by it to date under
each of the Target Ground Leases and (ii) neither Target nor any Target
Property Owner, nor to the Knowledge of Target, any other party, is in
default under any Target Ground Lease (and no event has occurred which,
with due notice or lapse of time or both, would constitute such a default).
Target has delivered (or made available) to Purchaser a true, correct and
complete copy of each Target Ground Lease and all amendments thereto. No
option has been exercised under any of such Target Ground Leases, except
options whose exercise has been evidenced by a written document as
described in Section 3.9(h) of the Target Disclosure Letter, a true,
complete and accurate copy of which has been delivered to Purchaser with
the corresponding Target Ground Lease.
(i) The rent roll for each of the Target Properties as of November 30,
2001 (collectively, the "Rent Roll") has been provided or made available to
Purchasers. Except as disclosed in Section 3.9(i) of the Target Disclosure
Letter and for discrepancies that, either individually or in the aggregate,
would not reasonably be expected to have a Target Material Adverse Effect,
the information set forth in the Rent Roll is true, correct and complete as
of the date thereof. Except as disclosed in Section 3.9(i) of the Target
Disclosure Letter, neither Target nor any Target Property Owner, on the one
hand, nor, to the Knowledge of Target, any other party, on the other hand,
is in default under any Anchor Tenant Lease which, individually or in the
aggregate, would reasonably be expected to result in a Target Material
Adverse Effect.
(j) Except as set forth in Section 3.9(j) of the Target Disclosure
Letter or which, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect, Target and each of the
Target Property Owners have good and sufficient title to, or are permitted
to use under valid and existing leases, all their personal and non-real
properties and assets (collectively, the "Personal Property") reflected in
their books and records as being owned by them (including those reflected
in the consolidated balance sheet of Target as of February 28, 2001, except
as since sold or otherwise disposed of in the ordinary course of business)
or used by them in the ordinary course of business, free and clear of all
liens and encumbrances, except such as are reflected on the consolidated
balance sheet of Target as of February 28, 2001, and the notes thereto, and
except for liens for current Taxes not yet due and payable, and liens or
encumbrances which are normal to the business of Target and the Target
Property Owners and are not, in the aggregate, material in relation to the
assets of Target on a consolidated basis and except also for such
imperfections of title or leasehold interest, easement and encumbrances, if
any, as do not materially interfere with the present use of the properties
subject thereto or affected thereby, or as would not otherwise reasonably
be expected to cause a Target Material Adverse Effect.
(k) Except as set forth in Section 3.9(k) of the Target Disclosure
Letter or which, individually or in the aggregate, would not reasonably be
expected to have a Target Material Adverse Effect, there are no pending CAM
or similar audits by any Third Party.
SECTION 3.10. No Undisclosed Material Liabilities. Except as disclosed
in the Target Filings or as set forth in Section 3.10 of the Target
Disclosure Letter or as otherwise would not reasonably be expected to have
a Target Material Adverse Effect, there are no liabilities of Target or any
Target Subsidiaries, whether accrued, contingent, absolute or determined,
other than: (i) liabilities adequately provided for on the balance sheet of
Target dated as of February 28, 2001 (including the notes thereto)
contained in the Annual Accounts for the fiscal year ended February 28,
2001 of Target or (ii) liabilities incurred in the ordinary course of
business subsequent to February 28, 2001.
SECTION 3.11. No Default. Except as set forth in Section 3.11 of the
Target Disclosure Letter, neither Target nor any of the Target Subsidiaries
is in default or violation (and no event has occurred which, with notice or
the lapse of time or both, would constitute a default or violation) of any
term, condition or provision of:
(a) the Target Organizational Documents or the comparable charter
or organizational documents (including any operating agreement or limited
partnership agreement) of any of the Target Subsidiaries,
(b) any loan or credit agreement or note, including, but not
limited to, the Triggered Loans or any bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise or license to
which Target or any of the Target Subsidiaries is now a party or by which
Target or any of the Target Subsidiaries or any of their respective
properties or assets is bound, or
(c) any order, writ, injunction, decree, statute, rule or
regulation applicable to Target or any of the Target Subsidiaries, except,
in the case of clauses (b) and (c), for defaults or violations which,
individually or in the aggregate, would not reasonably be expected to have
a Target Material Adverse Effect.
SECTION 3.12. Compliance with Applicable Laws. Target and the Target
Subsidiaries hold all permits, licenses, certificates, registrations,
variances, exemptions, orders, franchises and approvals of all Governmental
Entities necessary for the lawful conduct of their respective businesses
(the "Target Permits"), except where the failure so to hold, individually
or in the aggregate, would not reasonably be expected to have a Target
Material Adverse Effect. Target and the Target Subsidiaries are in
compliance with the terms of Target Permits, except where the failure to so
comply, individually or in the aggregate, would not reasonably be expected
to have a Target Material Adverse Effect. Except as disclosed in the Target
Filings and as would not reasonably be expected to have a Target Material
Adverse Effect, the businesses of Target and the Target Subsidiaries are
not being conducted in violation of any Law (other than Environmental Laws
(as to which, representations are made in Section 3.8 hereof)) of any
Governmental Entity. No investigation or review by any Governmental Entity
with respect to Target or any of the Target Subsidiaries is pending and of
which Target has Knowledge or, to the Knowledge of Target, is threatened,
other than those the outcome of which, individually or in the aggregate,
would not reasonably be expected to have a Target Material Adverse Effect.
SECTION 3.13. Litigation. Except (i) as set forth in Section 3.13 of
the Target Disclosure Letter, (ii) litigation related to environmental
matters, including without limitation any matters arising under
Environmental Laws (as to which, representations are made in Section 3.8
hereof) and (iii) for routine litigation arising from the ordinary course
of business of Target and the Target Subsidiaries which are adequately
covered by insurance, there is no litigation, arbitration, claim,
investigation, suit, action or proceeding pending in which service of
process has been received by an employee of Target or, to the Knowledge of
Target, threatened against or affecting Target or any Target Subsidiary
that, individually or in the aggregate, would reasonably be expected to
have a Target Material Adverse Effect, nor is there any judgment, award,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against Target or any Target Subsidiary of which Target has
Knowledge and which would reasonably be expected to, individually or in the
aggregate, have a Target Material Adverse Effect.
SECTION 3.14. Taxes. Except as set forth in Section 3.14 of the Target
Disclosure Letter:
(a) Target and each Target Subsidiary has timely filed all Tax
Returns required to be filed by it (after giving effect to any filing
extension properly granted by a Governmental Entity having authority to do
so or otherwise permitted by Law). Each such Tax Return is true, correct
and complete in all material respects. Target and each Target Subsidiary
has paid, within the time and in the manner prescribed by Law, all Taxes
that are due and payable. The most recent financial statements contained in
the Target Filings and the financial statements of Hexalon filed prior to
the date of this Agreement reflect an adequate reserve or accrued
liabilities or expenses for all Taxes due and payable by Target and the
Target Subsidiaries for all taxable periods and portions thereof through
the date of such financial statements. Target has established on its books
and records reserves or accrued liabilities or expenses that are adequate
for the payment of all Taxes for which Target or any Target Subsidiary is
liable but are not yet due and payable. No deficiencies for Taxes have been
asserted or assessed in writing by a Governmental Entity against Target or
any Target Subsidiary, including claims by any Governmental Entity in a
jurisdiction where Target or any Target Subsidiary does not file Tax
Returns and no requests for waivers of the time to assess any such Taxes
have been granted and remain in effect or are pending.
(b) All Taxes which Target or the Target Subsidiaries are
required by Law to withhold or collect, including Taxes required to have
been withheld in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other third party and
sales, gross receipts and use taxes, have been duly withheld or collected
and, to the extent required, have been paid over to the proper Governmental
Entities or are held in separate bank accounts for such purpose. There are
no Encumbrances for Taxes upon the assets of the Target Subsidiaries except
for statutory Encumbrances for Taxes not yet due.
(c) The Tax Returns of Target and any Target Subsidiary have not
been audited by any taxing authority and there are no audits by and
contests with any taxing authority currently being conducted with regard to
Taxes or Tax Returns of Target, any Target Subsidiary and any Target
Non-Purchased Entity and, to the Knowledge of Target, there are no audits
pending with or proposed by any taxing authority with respect to any Taxes
or Tax Returns.
(d) None of Target or the Target Subsidiaries have any liability
for the Taxes of any Person other than Target or the Target Subsidiaries
and Target and the Target Subsidiaries do not have any liability for the
Taxes of any Person other than Target or the Target Subsidiaries either (i)
under Treasury Regulation Section 1.1502-6 (or any similar provision of
state, local or foreign Law) or (ii) to the Knowledge of Target as a
transferee or successor.
(e) Each Target Subsidiary that is a U.S. corporation has
disclosed to the IRS all positions taken on their federal income Tax
Returns which could give rise to a substantial understatement of Tax under
Section 6662 of the Code.
(f) Based on the assumptions as to purchase price allocations to
specific assets provided by the Purchasers' and as set forth in the Pro
Forma Tax Returns, the consummation of the transactions contemplated by
this Agreement and the Transaction Documents will not result in any Taxes
being payable by any Target, any Target Subsidiary, any Target
Non-Purchased Entity or any Purchaser to any Governmental Entity, except
for (i) Excluded Taxes, (ii) Transfer and Gain Taxes not exceeding
$15,000,000 in the aggregate and (iii) other Taxes in an aggregate amount
not to exceed $3,000,000.
(g) Target (i) has been subject to taxation as a BI within the
meaning of Article 28 of the Netherlands Corporate Income Tax Act of 1969,
as amended, commencing with the first taxable year of its operations, and
has satisfied all requirements to qualify as a BI for such year and each
year thereafter, (ii) has operated, and intends to continue to, operate in
such manner as to qualify as a BI until the Closing and until the time the
proceeds from the proceeds from the Purchase are distributed to the
shareholders of Target in accordance with the Protocol.
(h) Hexalon (i) has been subject to taxation as a REIT within the
meaning of Section 856 of the Code commencing with the first taxable year
of its operations, and has satisfied all requirements to qualify as a REIT
for such year and each year thereafter, (ii) has operated, and intends to
continue to operate, in such a manner as to qualify as a REIT for the
taxable year ending December 31, 2001, and thereafter until the Closing and
has no liability for taxes under Section 11, 857(b), 860(c) or 4981 of the
Code and (iii) has not taken or omitted to take any action which would
reasonably be expected to (A) result in any rents paid by the tenants of
the Properties to be excluded from the definition of "rents from real
property" under Section 856(d)(2)(C) of the Code, or (B) otherwise result
in a challenge to its status as a REIT, and no such challenge is pending
or, to the Knowledge of Target is threatened. Each Subsidiary of Hexalon
and any Person Hexalon owns an interest in which is a partnership, joint
venture or limited liability company (i) has been since its formation and
continues to be treated for federal income tax purposes as a partnership
and not as a corporation or an association taxable as a corporation or
ignored as a separate entity, as the case may be, and (ii) has not since
its formation owned any assets (including, without limitation, securities)
that would cause Hexalon to violate Section 856(c)(4) of the Code. Each
Subsidiary of Hexalon which is a corporation or treated as an association
taxable as a corporation and any Person in which Hexalon owns 10% or more,
by vote or by value, of such Person's outstanding securities, is a
qualified REIT subsidiary under Section 856(i) of the Code or a taxable
REIT subsidiary under Section 856(l) of the Code.
(i) Except as set forth in the Urban Tax Indemnification
Agreement, neither Target nor any Target Subsidiary has entered into or is
subject, directly or indirectly, to any "Tax Protection Agreements." As
used herein, a Tax Protection Agreement is an agreement, oral or written,
(A) that has as one of its purposes to permit a person or entity to take
the position that such person or entity could defer federal taxable income
that otherwise might have been recognized upon a transfer of property to
the Target Partnership or any other Target Subsidiary that is treated as a
partnership for federal income tax purposes, and (B) that (i) prohibits or
restricts in any manner the disposition of any assets of Target or any
Target Subsidiary, (including, without limitation, requiring Target or any
Target Subsidiary to indemnify any person for any tax liabilities resulting
from any such disposition), (ii) requires that Target or any Target
Subsidiary maintain, or put in place, or replace, indebtedness, whether or
not secured by one or more of the Target Properties, or (iii) requires that
Target or any Target Subsidiary offer to any person or entity at any time
the opportunity to guarantee or otherwise assume, directly or indirectly,
the risk of loss for federal income tax purposes for indebtedness or other
liabilities of Target or any Target Subsidiary.
(j) Neither Target nor any Target Subsidiary is a party to, is
bound by or has an obligation under any Tax sharing agreement, Tax
indemnification agreement or similar contract or arrangement (other than
Urban Tax Indemnification Agreement), including any agreement, contract or
arrangement providing for the sharing or ceding of credits or losses, or
has a potential liability or obligation as a result of or pursuant to any
such agreement, contract, arrangement or commitment. No closing agreement
pursuant to section 7121 of the Code (or any predecessor provision) or any
similar provision of any state, local or foreign has been entered into by
or on behalf of the Target or any Subsidiary. No power of attorney or
similar document which is currently in force has been granted by Target or
any Target Subsidiary with respect to any matter relating to Taxes.
SECTION 3.15. Pension and Benefit Plans; ERISA. Except as set forth in
Section 3.15 of the Target Disclosure Letter:
(a) All "employee pension benefit plans," as defined in Section
3(2) of ERISA, maintained or contributed to by Target or any trade or
business (whether or not incorporated) which is under common control, or
which is treated as a single employer, with Target under Section 414(b),
(c), (m) or (o) of the Code (a "Target ERISA Affiliate") or to which Target
or any of the Target Subsidiaries or any Target ERISA Affiliate contributed
or is obligated to contribute thereunder within six years prior to the
Closing (the "Target Pension Plans") intended to qualify under Section 401
of the Code have received a favorable determination letter from the IRS and
such determination has not been modified, revoked or limited, and, to the
Knowledge of Target as of the Closing Date, nothing has occurred with
respect to the operation of Target Pension Plans that could reasonably be
expected to cause the loss of such qualification or the imposition of any
material liability, penalty or Tax under ERISA or the Code.
(b) Neither Target nor any Target ERISA Affiliate currently
sponsors, contributes to, maintains or has liability (whether contingent or
otherwise) under (i) a "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) or (ii) an employee benefit plan that is or was
subject to Part 3 of Subtitle B of Title I of ERISA, Section 412 of the
Code, or Title IV of ERISA.
(c) To the Knowledge of Target, there is no violation of ERISA or
the Code with respect to (i) the filing of applicable reports, documents,
and notices with the Secretary of Labor and the Secretary of the Treasury
regarding all "employee benefit plans," as defined in Section 3(3) of
ERISA, and all other employee compensation and benefit arrangements or
payroll practices, including, without limitation, severance pay, sick
leave, vacation pay, salary continuation for disability, consulting or
other compensation agreements, retirement, deferred compensation, bonus
(including, without limitation, any retention bonus plan), long-term
incentive, stock option, stock purchase, hospitalization, medical
insurance, life insurance and scholarship programs maintained by Target or
any of the Target Subsidiaries or with respect to which Target or any of
the Target Subsidiaries has any liability or Target Pension Plans (all such
plans, including Target Pension Plans, being hereinafter referred to as the
"Target Employee Benefit Plans") or (ii) the furnishing of such documents
to the participants or beneficiaries of Target Employee Benefit Plans.
(d) Each Target Employee Benefit Plan, related trust (or other
funding or financing arrangement) and all amendments thereto are listed in
Section 3.15(d) of the Target Disclosure Letter, true and complete copies
of which have been made available to Purchasers, as have the most recent
summary plan descriptions, administrative service agreements, Form 5500s
and, with respect to any Target Employee Benefit Plan intended to be
qualified pursuant to Section 401(a) of the Code, a current IRS
determination letter.
(e) Each Target Employee Benefit Plan is, and its administration
is and has been, in material compliance with, and none of Target nor any of
the Target Subsidiaries has received any claim, notice or information that
any such Target Employee Benefit Plan is not in compliance with, its terms
and all applicable Laws, regulations, rulings and all other applicable
governmental Laws, regulations and orders, and prohibited transaction
exemptions, including, without limitation, the requirements of ERISA,
bonding requirements and the furnishing of documents to the participants
and beneficiaries (and other individuals entitled to such documents) of
each such plan.
(f) To the Knowledge of Target, there is no liability for
breaches of fiduciary duty in connection with Target Employee Benefit
Plans, and neither Target nor any of the Target Subsidiaries or any "party
in interest" or "disqualified person" with respect to Target Employee
Benefit Plans has engaged in a non-exempt "prohibited transaction" within
the meaning of Section 4975 of the Code or Section 406 of ERISA.
(g) There are no actions, disputes, suits, claims, arbitration or
legal, administrative or other proceeding or governmental investigation
pending (other than routine claims for benefits) or, to the Knowledge of
Target, threatened, alleging any breach of the terms of any Target Employee
Benefit Plan or of any fiduciary duties thereunder or violation of any
applicable Law with respect to any such Target Employee Benefit Plan.
(h) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby, whether alone, or in
connection with any other event, will (i) result in any payment (including,
but not limited to, any retention bonuses, parachute payments or
noncompetition payments) becoming due to any employee or former employee or
group of employees or former employees of Target or any of the Target
Subsidiaries; (ii) increase any benefits otherwise payable under any Target
Employee Benefit Plan or any Target Employment Agreement; (iii) result in
the acceleration of the time of payment or vesting of any such rights or
benefits; or (iv) result in the payment of any "excess parachute payment"
within the meaning of Section 280G of the Code with respect to a current or
former employee of Target or any of the Target Subsidiaries.
(i) There are no severance agreements or policies, noncompetition
agreements or employment agreements between Target or any of the Target
Subsidiaries and any employee of Target or such Target Subsidiary, and true
and complete copies of all severance agreements and policies and employment
agreements described in Section 3.15(i) of the Target Disclosure Letter
have been provided to Purchasers.
(j) Neither Target nor any of the Target Subsidiaries has any
consulting agreement or arrangement, whether oral or written, with any
Person involving annual compensation in excess of $100,000.
(k) All contributions, premiums and other payments required by
Law or any Target Employee Benefit Plan or applicable collective bargaining
agreement have been made under any such plan to any fund, trust or account
established thereunder or in connection therewith by the due date thereof,
and no amounts are or will be due to the Pension Benefit Guaranty
Corporation as of the Closing Date (except for premiums in the ordinary
course of business, which will be payable by Target); and any and all
contributions, premiums and other payments with respect to compensation or
service before and through the Closing Date, or otherwise with respect to
periods before and through the Closing Date, due from any of Target or its
ERISA Affiliates to, under or on account of each Target Employee Benefit
Plan shall have been paid prior to the Closing Date or shall have been
fully reserved and provided for or accrued on Target financial statements.
(l) No stock or other security issued by Target or any of the
Target Subsidiaries forms or has formed a part of the assets of any Target
Employee Benefit Plan.
(m) No Target Employee Benefit Plan that is a "welfare benefit
plan" as defined in Section 3(1) of ERISA provides for continuing benefits
or coverage for any participant or beneficiary or covered dependent of a
participant after such participant's termination of employment, except to
the extent required by Law.
(n) All Target Employee Benefit Plans that provide medical,
dental health or long-term disability benefits are fully insured and claims
with respect to any participant or covered dependent under such Target
Employee Benefit Plan could not reasonably result in any uninsured
liability to Target, any Target Subsidiary or Purchasers. Target and Target
ERISA Affiliates have complied in all material respects with the
requirements of Section 4980B of the Code and Parts 6 and 7 of Subtitle B
of Title I of ERISA regarding health care coverage under Target Employee
Benefit Plans.
(o) No amount has been paid by Target or any of Target ERISA
Affiliates, and no amount is expected to be paid by Target or any of Target
ERISA Affiliates, which would be subject to the provisions of Section
162(m) of the Code such that all or a part of such payments would not be
deductible by the payor.
(p) Without limiting any other provision of this Section 3.15, no
event has occurred and no condition exists, with respect to any Target
Employee Benefit Plan, that has subjected or could subject Target or any
Target ERISA Affiliate, or any Target Employee Benefit Plan or any
successor thereto, to any Tax, fine, penalty or other liability (other
than, in the case of Target, a Target ERISA Affiliate and Target Employee
Benefit Plans, a liability arising in the normal course to make
contributions or payments, as applicable, when ordinarily due under a
Target Employee Benefit Plan with respect to employees of Target and the
Target Subsidiaries). No event has occurred and no condition exists, with
respect to any Target Employee Benefit Plan that could subject Purchasers
or any of its Affiliates, or any plan maintained by Purchasers or any of
their Affiliates (other than an Affiliate which becomes such pursuant to
the transactions contemplated by this Agreement) thereof, to any Tax, fine,
penalty or other liability, that would not have been incurred by Purchasers
or any of their Affiliates, or any such plan, but for the transactions
contemplated hereby. No plan other than a Target Employee Benefit Plan is
or will be directly or indirectly binding on Purchasers by virtue of the
transactions contemplated hereby. Purchasers and their Affiliates,
including on and after the Closing Date, Target and any Target ERISA
Affiliate, to the knowledge of Target, shall have no liability for, under,
with respect to or otherwise in connection with any plan, which liability
arises under ERISA or the Code, by virtue of Target or any Target
Subsidiary being aggregated in a controlled group or affiliated service
group with any Target ERISA Affiliate for purposes of ERISA or the Code at
any relevant time prior to the Closing Date (other than a liability from
providing benefits arising in the ordinary course of business).
(q) Each Target Employee Benefit Plan may be unilaterally amended
or terminated in its entirety by Target without liability except as to
benefits accrued thereunder prior to amendment or termination.
(r) All individual employment, termination, severance, change in
control, retention, bonus, post-employment and other compensation
agreements, arrangements and plans existing prior to the execution of this
Agreement or which will exist prior to the Closing, which are between
Target or a Target Subsidiary and any current or former director, officer
or employee thereof, including the name of such current or former director,
officer or employee, the type of agreement and the amount of any estimated
severance payment (including estimated gross up) owed thereunder due to the
transactions contemplated by this Agreement and any subsequent termination
of employment, are listed in Section 3.15(r) the Target Disclosure Letter
(collectively, the "Target Employment Agreements").
SECTION 3.16. Labor and Employment Matters. Except as set forth in
Section 3.16 of the Target Disclosure Letter or as would not be reasonably
expected to have a Target Material Adverse Effect:
(a) Neither Target nor any of the Target Subsidiaries is a party
to any collective bargaining agreement or other current labor agreement
with any labor union or organization, and there is no question involving
current union representation of employees of Target or any of the Target
Subsidiaries, nor does Target or any of the Target Subsidiaries know of any
activity or proceeding of any labor organization (or representative
thereof) or employee group (or representative thereof) to organize any such
employees.
(b) There is no unfair labor practice charge or grievance arising
out of a collective bargaining agreement or other grievance procedure
pending, or, to the Knowledge of Target, threatened against Target or any
of the Target Subsidiaries.
(c) There is no complaint, lawsuit or proceeding in any forum by
or on behalf of any present or former employee, any applicant for
employment or any classes of the foregoing, alleging breach of any express
or implied contract of employment, any Law or regulation governing
employment or the termination thereof or other discriminatory, wrongful or
tortious conduct in connection with the employment relationship pending,
or, to the Knowledge of Target, threatened against Target or any of the
Target Subsidiaries.
(d) There is no strike, slowdown, work stoppage or lockout
pending, or, to the Knowledge of Target, threatened, against or involving
Target or any of the Target Subsidiaries.
(e) The employees of Target and the Target Subsidiaries are
lawfully authorized to work in the United States according to federal
immigration Laws.
(f) Target and each of the Target Subsidiaries are in compliance
with all applicable Laws in respect of employment and employment practices,
terms and conditions of employment, wages, hours of work and occupational
safety and health.
(g) As of the date of this Agreement, there is no proceeding,
claim, suit, action or governmental investigation pending or, to the
Knowledge of Target, threatened, with respect to which any current or
former director, officer, employee or agent of Target or any of the Target
Subsidiaries is claiming indemnification from Target or any of the Target
Subsidiaries.
SECTION 3.17. Contracts
(a) Section 3.17(a) of the Target Disclosure Letter lists all
Material Contracts of Target and all Target Subsidiaries. Except as set
forth in Section 3.17(a) of the Target Disclosure Letter or in the Target
Filings, each Material Contract of Target or a Target Subsidiary is valid,
binding and enforceable and in full force and effect, except where such
failure to be so valid, binding and enforceable and in full force and
effect would not, individually or in the aggregate, reasonably be expected
to have a Target Material Adverse Effect, and there are no defaults or
violations thereunder, nor does there exist any condition which upon the
passage of time or the giving of notice or both would cause such a
violation of or a default thereunder, except those defaults or violations
that would not, individually or in the aggregate, reasonably be expected to
have a Target Material Adverse Effect. Target has made available, or caused
to be made available, to Purchasers true and complete copies of each
Material Contract and all ancillary documents pertaining thereto.
(b) All mortgages, deeds of trust, loan agreements or other
documents on any of the Assets are listed in Section 3.17(b) of the Target
Disclosure Letter. The transactions contemplated hereby and by the
Transaction Documents will not trigger any due-on-sale provision on any of
such mortgages, deeds of trust, loan agreements or other documents, except
as set forth in Section 3.17(b) of the Target Disclosure Letter and will
not require the consent of any mortgage lender, except as set forth in
Section 3.17(b) of the Target Disclosure Letter.
(c) Except as set forth in Section 3.17(c) of the Target
Disclosure Letter, there is no confidentiality agreement, non-competition
agreement or other contract or agreement that contains covenants that
restrict Target's ability to conduct its business in any location.
(d) Except as set forth in Section 3.17(d) of the Target
Disclosure Letter, there are no indemnification agreements entered into by
and between Target and any director or officer of Target or any of the
Target Subsidiaries.
(e) All joint venture agreements are listed in Section 3.17(e) of
the Target Disclosure Letter. The transactions contemplated by this
Agreement and the Transaction Documents will not trigger any termination,
buy-sell, transfer, option, right of first refusal, right of first offer,
tag-along or any similar right by any party under any of such joint venture
agreements, except as set forth in Section 3.17(e) of the Target Disclosure
Letter and will not require the consent of any joint venture partner,
except as set forth in Section 3.17(e) of the Target Disclosure Letter.
SECTION 3.18. Intangible Property. Target and the Target Subsidiaries
own, possess or have adequate rights to use all trademarks, trade names,
patents, service marks, brand marks, brand names, computer programs,
databases, industrial designs, domain names and copyrights currently used
in the operation of the businesses of each of Target and the Target
Subsidiaries (collectively, the "Target Intangible Property"), except where
the failure to possess or have adequate rights to use such property,
individually or in the aggregate, would not reasonably be expected to have
a Target Material Adverse Effect. Section 3.18 of the Target Disclosure
Letter sets forth a list of all trademarks, trade names, patents, service
marks and domain names owned by Target or any Target Subsidiary. All of
Target Intangible Property is owned or licensed by Target or the Target
Subsidiaries free and clear of any and all Encumbrances, except as would
not, individually or in the aggregate, reasonably be expected to have a
Target Material Adverse Effect, and neither Target nor any such Target
Subsidiary has forfeited or otherwise relinquished any Target Intangible
Property. To the Knowledge of Target, the use of Target Intangible Property
by Target or the Target Subsidiaries does not in any material respect,
conflict with, infringe upon, violate or interfere with or constitute an
appropriation of any right, title, interest or goodwill, including, without
limitation, any intellectual property right, trademark, trade name, patent,
service ▇▇▇▇, brand ▇▇▇▇, brand name, computer program, database,
industrial design, copyright or any pending application therefore, of any
other Person. Except as set forth in Section 3.18 of the Target Disclosure
Letter, to the Knowledge of Target, there have been no claims made, and
neither Target nor any of the Target Subsidiaries has received any notice
of any claim nor does Target otherwise have Knowledge that any of Target
Intangible Property is invalid or conflicts with the asserted rights of any
other Person or has not been used or enforced or has failed to have been
used or enforced in a manner that would result in the abandonment,
cancellation or unenforceability of any of Target Intangible Property,
except as would not, individually or in the aggregate, reasonably be
expected to have a Target Material Adverse Effect.
SECTION 3.19. Insurance. Section 3.19 of the Target Disclosure Letter
sets forth an insurance schedule of Target. Target and each of the Target
Subsidiaries maintains insurance with financially responsible insurers in
such amounts and covering such risks as are in accordance with normal
industry practice for companies engaged in businesses similar to those of
Target and each of the Target Subsidiaries. Except as set forth in this
Section 3.19, neither Target nor any of the Target Subsidiaries has
received any written notice of cancellation or termination with respect to
any existing material insurance policy of Target or any of the Target
Subsidiaries.
SECTION 3.20. Brokers. Except for the fees and expenses payable to the
Target Financial Advisor (which fees and the engagement letter with respect
to such Person have been disclosed to Purchasers), no broker, investment
banker or other Person is entitled to any broker's, finder's or other
similar fee or commission in connection with the transactions contemplated
by the Transaction Documents based upon arrangements made by or on behalf
of Target or any Target Subsidiary.
SECTION 3.21. Related Party Transactions. Except as disclosed in the
Target Filings or as set forth in Section 3.21 of the Target Disclosure
Letter, there are no material arrangements, agreements or contracts entered
into by Target or any of the Target Subsidiaries, on the one hand, and any
Person who is an officer, director or affiliate of Target or any Target
Subsidiary, any relative of the foregoing or an entity of which any of the
foregoing is an affiliate, on the other hand. Copies of all such documents
have been made available to Purchasers.
SECTION 3.22. Opinion of Financial Advisor. The Supervisory Board and
the Management Board of Target have received the written opinion of the
Target Financial Advisor to the effect that, based on, and subject to the
various assumptions and qualifications set forth in such opinion, as of the
date of such opinion, the Purchase Price to be received by Target pursuant
to this Agreement is fair from a financial point of view to Target's
shareholders. A copy of the written opinion of the Target Financial Advisor
has been delivered to the Purchasers.
SECTION 3.23. Investment Company Act of 1940. Neither the Target nor
any of the Target Subsidiaries is, or at the Closing will be, required to
be registered as an investment company under the Investment Company Act of
1940, as amended.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER PARTIES
As an inducement to Target to enter into this Agreement, each
Purchaser Party hereby jointly and severally represents and warrants to
Target as follows:
SECTION 4.1. Organization, Standing and Power. Each Purchaser Party is
a corporation, limited partnership or limited liability company duly formed
and validly existing under the Laws of the state jurisdiction in which it
is organized and is in good standing in such jurisdiction.
SECTION 4.2. Authority; No Violations; Consents and Approvals.
(a) Each Purchaser Party has the corporate, limited partnership
or limited liability company power, as applicable, and authority to enter
into the Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby or thereby. The execution and delivery of
the Transaction Documents and the consummation of the transactions
contemplated hereby or thereby have been duly authorized by all necessary
action on the part of the Purchaser Parties.
(b) The Transaction Documents to which each Purchaser Party is a
party have been duly executed and delivered by each such entity, and,
constitute valid and binding obligations of each such entity enforceable in
accordance with their terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and other Laws of
general applicability relating to or affecting creditors' rights and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at Law).
(c) The execution and delivery of the Transaction Documents by
each Purchaser Party do not, and the consummation of the transactions
contemplated hereby or thereby, and compliance with the provisions hereof
or thereof, will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any
material obligation or the loss of a material benefit under, or give rise
to a right of purchase under, result in the creation of any Encumbrance
upon any of the properties or assets of such parties under, require the
consent or approval of any third party or otherwise result in a material
detriment to such parties under, require the consent or approval of any
third party or otherwise result in a material detriment to such parties
under, any provision of (A) the organizational documents of such entity,
(B) any Material Contract applicable to such entity, its properties or
assets or any guarantee by such entity, (C) any joint venture or other
ownership arrangement applicable to such entity or (D) assuming the
consents, approvals, authorizations or permits and filings or notifications
referred to in Section 4.2(d) are duly and timely obtained or made, any
judgment, order, decree, statute, Law, ordinance, rule or regulation
applicable to such entity or any of its properties or assets, other than,
in the case of clauses (B), (C) and (D), any such conflicts, violations,
defaults, rights, Encumbrances or detriments that, individually or in the
aggregate, would not reasonably be expected to materially impair or delay
the ability of such entity to perform its obligations hereunder or under
any of the other Transaction Documents or prevent the consummation of any
of the transactions contemplated hereby or thereby.
(d) No consent, approval, order or authorization of, or
registration, declaration or filing with, or permit from any Governmental
Entity is required by or with respect to a Purchaser Party in connection
with the execution and delivery by such entity of the Transaction Documents
to which such entity is a party or the consummation by such entity of the
transactions contemplated hereby or thereby, except for: (A) the filing
with the SEC of such reports under Section 13(a) of the Exchange Act and
such other compliance with the Securities Act and the Exchange Act and the
rules and regulations thereunder as may be required in connection with this
Agreement and the transactions contemplated hereby; (B) such filings and
approvals as may be required by any applicable Environmental Laws; (C)
filings under the HSR Act, if applicable; (D) filings necessary to obtain
the Enterprise Chamber approval or otherwise required by the Protocol or
applicable Dutch Law and (E) any such consent, approval, order,
authorization, registration, declaration, filing or permit that the failure
to obtain or make would not reasonably be expected to materially impair or
delay the ability of such entity to perform its obligations hereunder or
under any of the other Transaction Documents or prevent the consummation of
any of the transactions contemplated hereby or thereby.
SECTION 4.3. Available Funds. On the Closing Date, Purchasers will
have available all funds necessary to pay the Purchase Price and to satisfy
all of their other respective obligations hereunder and in connection with
the Purchase. The obligations of the Purchaser Parties hereunder are not
subject to any conditions regarding the ability of Purchaser Parties to
obtain financing for the consummation of the transactions contemplated
herein.
SECTION 4.4. Brokers. No broker, investment banker or other person is
entitled to any broker's, finder's or other similar fee or commission in
connection with the transactions contemplated by the Transaction Documents
based upon arrangements made by or on behalf of the Purchaser Parties, for
which fee or commission Target or any Target Subsidiary may be liable.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Conduct of Business by Target Prior to the Closing.
(a) During the period from the date of this Agreement to the
earlier of the termination of this Agreement or the Closing, Target shall
and shall cause each of the Target Subsidiaries (other than the Joint
Ventures) to, carry on its businesses in the usual, regular and ordinary
course consistent with past practices and in material compliance with the
expenditure thresholds set forth in the budgets of Target and the Target
Subsidiaries listed in Section 5.1(a) of the Target Disclosure Letter and
such further budgets as are approved by Purchasers from time to time.
During the period from the date of this Agreement to the earlier of the
termination of this Agreement or the Closing, Target shall use reasonable
efforts to cause each of the Joint Ventures and the Target Non-Subsidiary
Entities to carry on its businesses in the usual, regular and ordinary
course consistent with past practices and with the budgets of such entity
as described above. Prior to Closing, Target shall, or shall cause a Target
Subsidiary to, (i) close the acquisition of the Oakbrook ground lease
pursuant to the terms of that certain contract, dated December 20, 2001,
between LaSalle National Trust and the Teachers Retirement System of the
State of Illinois (the "Oakbrook Contract") and, if permissible under the
existing Oakbrook mortgages, terminate said lease and (ii) at Purchasers'
direction, cause to be released of record any mortgage or deed of trust
which currently may be shown as an Encumbrance against Lakeside Mall,
without payment to any party.
(b) Without limiting the generality of the foregoing, during the
period from the date of this Agreement to the earlier of the termination of
this Agreement or the Closing, except as otherwise contemplated by this
Agreement or to the extent consented to in writing by Purchasers, Target
shall not and shall not authorize or commit or agree to, shall cause the
Target Subsidiaries (other than the Joint Ventures) not to (and not to
authorize or commit or agree to), and shall use reasonable efforts to cause
each of the Joint Ventures and the Target Non-Subsidiary Entities not to
(and not to authorize or commit or agree to):
(i) amend the Target Organizational Documents or any other
comparable charter or organizational documents of any Target
Subsidiary or any Target Non-Subsidiary Entity;
(ii) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any corporation, partnership, joint
venture, association or other business organization or division
thereof (including entities which are Subsidiaries), or acquire any
assets, including real estate, except purchases in the ordinary course
of business consistent with past practice in an amount not involving
more than $500,000, in the aggregate;
(iii) except for the Disposal Agreements, (A) enter into any
new commitments obligating Target, any Target Subsidiary or any Target
Non-Subsidiary Entity to make capital expenditures in excess of
$1,000,000 in the aggregate, not including tenant allowances under
existing leases and the commitments specifically reflected in the
budgets referenced in Section 5.1(a) and as set forth in Section
5.1(b)(iii)(A) of the Target Disclosure Letter, (B) acquire, enter
into any option to acquire, or exercise an option or other right or
election or enter into any other commitment or contractual obligation
(each, a "Commitment") for the acquisition of any real property or
other transaction (other than any Commitment referred to in Section
5.1(b)(iii)(B) of the Target Disclosure Letter) involving
nonrefundable deposits in excess of $250,000 and, in any event, not in
excess of $1,000,000 in the aggregate, (C) commence construction of,
or enter into any Commitment to develop or construct, other real
estate projects involving in excess of $500,000, (D) incur net
borrowings in any seven (7) day period in excess of $1,000,000, except
borrowings required to (i) comply with the terms of the Oakbrook
Contract not to exceed $35,000,000 or (ii) complete the Voting Trust
Redemption or (E) enter into any lease in excess of 10,000 square feet
or incur or commit to incur any tenant allowances or landlord funded
construction expenditures related thereto;
(iv) (A) redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock or other securities, other than
the Voting Trust Redemption; (B) issue, sell, pledge, dispose of or
encumber any additional shares of its capital stock or other equity
interests, securities convertible into or exchangeable for, or
options, warrants, calls, commitments or rights of any kind to
acquire, any shares of its capital stock or other equity interests, or
its other securities; or (C) split, combine or reclassify any of its
outstanding capital stock or other equity interests;
(v) transfer, sell, license, pledge, mortgage, subject to
Encumbrance or otherwise dispose of any of the Assets, except as
disclosed in Section 5.1(b)(v) of the Target Disclosure Letter and to
the extent specifically reflected in the budgets referenced in Section
5.1(a) or pursuant to the Disposal Agreements;
(vi) make or rescind any election relating to Taxes or
suffer the termination or revocation of any election relating to REIT
or BI status (unless Target reasonably determines, after prior
consultation with Purchasers, that such action is (a) required by Law;
(b) necessary or appropriate to preserve the status of certain Target
Subsidiaries as a REIT or any other Target Subsidiary which files Tax
Returns as a partnership for federal tax purposes; or (c) commercially
reasonable in the context of Target's business and relates to a change
in Law in 2001 or thereafter); provided, that, nothing in this
Agreement shall preclude any Target Subsidiary that is a REIT from
designating dividends paid by it as "capital gain dividends" within
the meaning of Section 857 of the Code (with the prior written consent
of Purchasers, which will not be unreasonably withheld) or electing to
treat any entity as a "taxable REIT subsidiary" (within the meaning of
Section 856(i) of the Code);
(vii) except as may be required by written contractual
commitments existing on the date hereof, referred to in Schedule
5.1(b)(vii) of the Target Disclosure Letter, and provided to
Purchasers, (A) increase the compensation or benefits payable or to
become payable to its officers or employees or officers or employees
of any Target Subsidiary or Affiliate thereof, other than (1)
increases in compensation to Non-Covered Employees in the ordinary
course of business consistent with past practice (provided, such
increases, in the aggregate, shall not exceed three and one-half
percent (3 1/2%) of any such Non-Covered Employee's base salary) and
(2) the payment of 2001 annual bonuses in the ordinary course of
business consistent with past practice (provided, with respect to any
employee, the amount that the bonus represents as a percentage of
such employee's base salary shall not exceed the percentage that the
employee's annual bonus for 2000 represented of such employee's base
salary for 2000), (B) establish, adopt, enter into or amend any
collective bargaining, bonus, profit sharing, thrift, compensation,
employment, termination, severance, stock incentive or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
director, officer or employee, except as contemplated by this
Agreement or to the extent required by applicable Law or the terms of
a collective bargaining agreement, (C) increase the benefits payable
under any existing severance or termination pay policies or employment
or other agreements, (D) take any affirmative action to accelerate the
vesting of any stock-based compensation, (E) grant any awards under
any bonus, incentive, performance or other compensation plan or
arrangement or Target Employee Benefit Plan (including the grant of
stock options, stock appreciation rights, stock based or stock related
awards, performance units or restricted stock, or the removal of
existing restrictions in any Target Employee Benefit Plans or
agreements or awards made thereunder) or (F) take any action to fund
or in any other way secure the payment of compensation or benefits
under any employee plan, agreement, contract or arrangement or Target
Employee Benefit Plan;
(viii) (A) enter into any employment, consulting or
severance agreement with or grant any severance or termination pay to
any officer, director or employee of Target or any Target Subsidiary;
or (B) hire or agree to hire any new or additional employees or
officers, provided, however, that if any Non-Covered Employee resigns
after the date hereof but prior to Closing, such entity may hire a
person to replace such employee on substantially similar terms
consistent with past practice, subject to the restrictions of clause
(A) above;
(ix) except as set forth in Section 5.1(b)(ix) of the Target
Disclosure Letter, enter into or amend or otherwise modify any
agreement or arrangement with persons that are Affiliates of Target
(other than agreements with Target Subsidiaries) or, as of the date of
this Agreement, are employees, officers or directors of Target or any
Target Subsidiary;
(x) except as otherwise permitted or contemplated by this
Agreement or the Protocol, authorize, recommend, propose or announce
an intention to adopt, or effect, a plan of complete or partial
liquidation or dissolution of Target, any Target Subsidiary or any
Target Non-Subsidiary Entity;
(xi) materially amend or terminate, or waive compliance with
the terms of or breaches under, any Material Contract or enter into a
new contract, agreement or arrangement that, if entered into prior to
the date of this Agreement, would have been required to be listed in
the Target Disclosure Letter pursuant to Section 3.15;
(xii) declare, set aside or pay any dividend or other
distribution payable in cash, stock or property with respect to its
capital stock or other equity interests; provided, however, that (A)
on or after April 15, 2002, distributions may be declared and paid to
Target by the Target Subsidiaries in an amount not greater than the
Ordinary Dividend Amount in order to fund the ordinary annual
distribution for 2002 payable to shareholders of Target on or after
May 15, 2002 (the "Ordinary Dividend"), (B) Target may declare and pay
the Ordinary Dividend on or after May 15, 2002 to shareholders of
Target, (C) distributions may be declared and paid to the Target
Non-Purchased Entities by the Target Subsidiaries in amounts necessary
to fund the Target Non-Purchased Entities' reasonable administrative
expenses consistent with past practice and expenses related to the
transactions contemplated hereby, provided such expenses shall not in
the aggregate exceed $1,000,000 per month, (D) distributions may be
declared and paid to Target Purchased Subsidiaries, (E) Hexalon may
make dividend payments it is required to make by the Code in order to
maintain REIT status and those that are sufficient to eliminate any
Federal tax liability and (F) distributions may be declared and paid
to Target by the Target Subsidiaries necessary to fund the Voting
Trust Redemption;
(xiii) (A) settle or compromise any claim, litigation or
other legal proceeding, other than those wholly-covered by insurance
or in the ordinary course of business consistent with past practice in
an amount not involving more than $250,000 individually or $500,00 in
the aggregate or (B) pay, discharge or satisfy any other claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or
satisfaction of (x) any such other claims, liabilities or obligations,
in the ordinary course of business and consistent with past practice,
or (y) of any such other claims, liabilities or obligations reflected
or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) of Target;
(xiv) enter into or amend any agreements for the sale of the
Abbey Properties or the RoPro Assets;
(xv) take any actions which would result in any liability
arising under the Urban Tax Indemnification Agreement;
(xvi) permit any insurance policy naming Target, any Target
Subsidiary or any Target Non-Subsidiary Entity as a beneficiary or a
loss payable payee to be canceled or terminated without notice to
Purchasers unless such entity shall have obtained an insurance policy
with substantially similar terms and conditions to the canceled or
terminated policy; and
(xvii) agree to take any action prohibited by any of the
foregoing.
(c) Subject to Section 5.4, Target shall, shall cause each of the
Target Subsidiaries (other than the Joint Ventures) to, and shall use
reasonable efforts to cause each Target Non-Subsidiary Entity and the Joint
Ventures to, extinguish or repay any and all intercompany obligations
(except for those intercompany obligations to be (and which shall be)
extinguished or repaid in connection with the liquidations and
distributions contemplated in order to make the Distribution as required by
the Protocol) prior to the Closing in a tax efficient manner; provided,
however, that, without the prior written consent of Purchasers, neither
Target nor any Target Subsidiary shall take any action pursuant to this
Section 5.1(c) with respect to the extinguishment or repayment of an
intercompany obligation if a payment to a third party would be required to
extinguish, or an increased tax obligation of Target, any Target
Subsidiary, Target Non-Subsidiary Entity or Joint Venture would result from
such extinguishing, of such intercompany obligation.
SECTION 5.2. Tax Related Covenants
(a) Target will and shall cause Hexalon to continue to qualify
Hexalon as a REIT under the Code. Target shall comply with all requirements
for treatment as a BI under Article 28 of the Netherlands Corporate Income
Tax Act of 1969, as amended, through September 1, 2002.
(b) Target and the Target Subsidiaries shall cooperate with
Purchasers in taking all action reasonably requested by Purchasers and
designed to reduce any Assumed Taxes or other liabilities arising from or
in connection with the transactions contemplated by this Agreement and by
the Transaction Documents if and solely to the extent such actions do not
impose any material costs on Target or the Target Subsidiaries. Target
shall confer with Purchasers regarding any actions, elections or other
steps relating to Taxes prior to taking any actions materially affecting
Taxes.
(c) On the date hereof Target obtained, and on the Closing Date
Target shall obtain a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP in the form attached
as Exhibit B hereto with respect to all prior federal income tax returns of
Hexalon and the Pro Forma Tax Returns (the "▇▇▇▇▇▇▇▇ Letter").
(d) On the date hereof Target obtained, and on the Closing Date
Target shall obtain, an opinion of Loyens & Loeff in the form attached as
Exhibit C hereto (the "Loyens Tax Opinion").
(e) The Target and the Target Subsidiaries will execute and
deliver written instructions to ▇▇▇▇▇▇, Golden & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, LLP directing and authorizing them to cooperate with Purchasers
and make their files available to Purchaser while this Agreement is in
effect and at all times following the Closing.
(f) Target shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP to prepare initial
and final pro forma, U.S. federal, state and local tax returns for all
relevant jurisdictions reflecting the liabilities of Target and its
Subsidiaries for Taxes (including, without limitation, withholding taxes
under Section 1445 of the Code) arising from or incident to the closing of
the transactions (including alternatively (i) a sale of the shares of
Hexalon and (ii) a sale of the assets of Hexalon and from the liquidation
of Hexalon thereafter) as provided in this Agreement (the "Pro Forma Tax
Returns"). The initial Pro Forma Tax Returns shall assume a closing of the
transactions as of March 31, 2002 at sale prices which Purchasers shall
provide to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP and the sale prices used for the Closing
and the final Pro Forma Tax Returns shall be based on the same assumptions
as to sales prices (subject, however, to any adjustments to sales prices to
reflect any price adjustments provided for in this Agreement and to reflect
the effect on the U.S. dollar equivalent price for the assets in the event
more, or fewer, U.S. dollar equivalents are payables for the assets
relative to the U.S. dollar equivalents used for the initial Pro Forma Tax
Returns) except the closing date shall be the date the Purchasers shall
indicate as the approximate date of the Closing. The Pro Forma Tax Returns
shall disregard the results from operations other than for depreciation and
amortization deductions computed as of the Closing Date.
(g) The parties hereto shall report for Tax purposes consistently
with the sales prices reflected in the final Pro Forma Tax Returns.
SECTION 5.3. Access to Information; Confidentiality.
(a) Target shall, shall cause each of the Target Subsidiaries to,
and shall use reasonable efforts to cause each Target Non-Subsidiary Entity
to, afford to Purchasers and their officers, employees, accountants,
counsel, financial advisors and other representatives (collectively,
"Purchasers' Representatives"), reasonable access during normal business
hours and upon reasonable advance notice during the period prior to the
Closing to all its properties, for the purpose of making surveys,
inspections, engineering studies, environmental assessments and other
tests, examinations or studies which Purchasers may deem necessary and for
the purpose of inspecting all of the books, contracts, commitments,
personnel and records of Target, the Target Subsidiaries and the Target
Non-Subsidiary Entities and, during such period, Target shall, and shall
cause each of the Target Subsidiaries to, and shall use reasonable efforts
to cause each Target Non-Subsidiary Entity to, furnish reasonably promptly
to Purchasers all other information concerning its business, properties and
personnel as Purchasers may reasonably request. Target and its officers,
employees, accountants, counsel, financial advisors and other
representatives shall cooperate in all reasonable respects with each
Purchaser and its accountants in connection with the preparation and
auditing in accordance with Dutch GAAP of financial statements of Target
and its Subsidiaries on a consolidated basis and in connection with the
preparation and auditing in accordance with United States GAAP of financial
statements relating to any of the Target Properties, with respect to
periods preceding the Closing Date if such Purchaser has reasonably
concluded that such audited financial statements are necessary or
appropriate in connection with its reporting obligations under the United
States Securities Exchange Act of 1934, as amended, or Australian
securities laws within four months after the Closing or in connection with
any debt or equity offering which may be proposed by such Purchaser after
the date hereof and within such four month period. Each Purchaser will
hold, and will cause its officers, employees, accountants, counsel,
financial advisors and other representatives and Affiliates to hold, any
nonpublic information in confidence to the extent required by, and in
accordance with, the provisions of (i) that certain letter agreement
between ▇.▇. ▇▇▇▇▇▇ Securities, Inc., on behalf of Target, and Hoosier,
dated October 15, 2001 (the "Hoosier Confidentiality Agreement"), (ii) that
certain letter agreement, dated October 18, 2001, between ▇.▇. ▇▇▇▇▇▇
Securities, Inc., on behalf of Target, and Terrapin, and (iii) that certain
letter agreement between ▇.▇. ▇▇▇▇▇▇ Securities, Inc., on behalf of Target,
and Westfield Holdings Limited, dated January 10, 2002 (collectively, the
"Confidentiality Agreements").
(b) In connection with any invasive or destructive testing of any
property (or any portion thereof) of Target, a Target Subsidiary or a
Target Non-Subsidiary Entity ("Invasive Testing"), Purchasers shall (i)
fully comply with all laws, rules and regulations applicable to Target
and/or the Invasive Testing and all other activities undertaken in
connection therewith, (ii) not interfere materially with the use and
occupancy of the property by Target and the tenants under the leases, and
(iii) permit Target to have a representative present during all Invasive
Testing undertaken hereunder. Purchasers hereby agrees to indemnify, defend
and hold harmless Target and Target's partners, and their respective
officers, directors, employees and agents from and against any and all
loss, cost, expense, damage, claim and liability suffered or incurred by
Target or any of such other entities or persons and arising out of
Purchasers' and/or Purchasers' Representatives Invasive Testing; provided,
however, that such indemnity shall not apply to the mere discovery by
Purchasers and/or Purchasers' Representatives of any matters if the
discovery thereof imposes liability on Target or any other indemnified
party.
SECTION 5.4. Reasonable Efforts; Notification.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each Purchaser Party, on the one hand, and Target on the
other hand agrees to use its reasonable best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to fulfill all conditions applicable to such party pursuant to
this Agreement and to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement and the Protocol (including the Distribution), including (i) the
obtaining of all necessary actions or nonactions, waivers, consents and
approvals from Governmental Entities and the making of all necessary
registrations and filings and the taking of all reasonable steps as may be
necessary to obtain an approval, waiver or exemption from any Governmental
Entity; (ii) the obtaining of all necessary consents, approvals, waivers or
exemptions from non-governmental third parties; and (iii) the execution and
delivery of any additional documents or instruments necessary to consummate
the transactions contemplated by this Agreement and the Protocol. In
addition, each of the parties hereto agrees to use its commercially
reasonable efforts to defend any lawsuits or legal proceedings, whether
judicial or administrative, challenging the Purchase or the other
transactions contemplated hereby. Target also shall cooperate with any
reasonable request of Purchasers to consummate the transactions
contemplated hereby (i) through a conveyance of other equity or real
property interests of Target or a Target Subsidiary in order to acquire
indirectly the interests identified on Exhibit A hereto if and to the
extent such alternative transaction structure would facilitate the
obtaining of any Necessary Consent or render the obtaining of such consent
(or any other consent) unnecessary and/or (ii) in a tax efficient manner,
including, without limitation, where necessary to avoid Dutch withholding
taxes or, when requested, the termination of partnerships, including an
admission by contribution to certain partnerships of the Purchasers
immediately prior to Closing (with a right to redeem such contribution if
the Closing does not occur immediately thereafter), and, if requested by
Purchasers deferred and reverse like kind exchanges resulting in cash to
the seller of the asset, which in no event shall reduce the Purchase Price.
Purchasers shall cooperate with any reasonable request by Target to
consummate the Purchase through the conveyance of other equity or real
property interests of Target or a Target Subsidiary in order to acquire
indirectly the interests specifically identified on Exhibit A hereto if and
to the extent such alternative transaction structure would facilitate the
obtaining of any Necessary Consent or render the obtaining of such consent
(or any other consent) unnecessary, provided that such alternative
transaction structure would not (i) diminish the economic benefits to the
Purchasers of the transactions contemplated hereby, (ii) impose any
material limitations or burdens on any Purchaser's (or any Purchaser
Designee's) ownership or operation of any Assets or (iii) adversely affect
either the tax consequences that any Purchaser Party would have from
acquiring the interests specifically identified on Exhibit A or the tax
treatment of the Purchaser Parties.
(b) Target shall give prompt notice to Purchasers of (i) the
occurrence, or non-occurrence of any event whose occurrence, or
non-occurrence would be likely to cause any condition set forth herein to
be unsatisfied in any material respect at any time from the date hereof to
the Closing and (ii) any failure of Target or any of its officers,
directors, employees or agents to comply in any material respect with any
covenant or agreement to be complied with by it hereunder; provided,
however, that the delivery of any notice pursuant to this Section 5.4 shall
not limit or otherwise affect the remedies available hereunder to
Purchasers.
SECTION 5.5. Tax Returns. Target and Purchasers shall cooperate in the
preparation, execution and filing of all returns, questionnaires,
applications or other documents regarding any Transfer and Gains Taxes
applicable to the Purchase. Target hereby assumes full responsibility for
preparation and filing, at Purchasers' sole expense, all Tax Returns of
each Target Non-Purchased Entity with respect to all Assumed Taxes which
are required to be filed on or after the Closing Date. Purchasers shall be
given thirty (30) days to comment on such Tax Returns prior to their filing
and the returns shall be subject to the approval of Purchasers, not to be
unreasonably withheld.
SECTION 5.6. Section 754 or Other Elections. At the request of
Purchasers, with respect to any partnership in which a Target Subsidiary
has a direct or indirect interest that has not made an election under
Section 754 of the Code (a "Section 754 Election") or other election,
Purchasers and Target shall use their reasonable best efforts to cause each
such partnership as designated by Purchasers to file a Section 754 Election
with the partnership's federal income Tax Return for the taxable year of
the partnership that ends on or includes the Closing Date or make any other
tax elections under the Code. At the request of Purchasers, Target and
Target Subsidiaries will cooperate in making elective classification
elections with respect to any Target Subsidiary under the pertinent U.S.
Treasury regulations.
SECTION 5.7. Employee Arrangements.
(a) Employment and Change of Control Arrangements. As of the
Closing Date, the Parent Entities shall assume, honor and perform in
accordance with their terms all employment, severance, change of control
and other such agreements of Target and any Target Subsidiary identified in
Section 5.7(a) of the Target Disclosure Letter. Without limiting the
foregoing, the Parent Entities shall pay or cause to be paid at Closing to
the employees identified on Section 5.7 of the Target Disclosure Letter
(the "Key Employees") the amounts due to each such Key Employee pursuant to
the terms of each such Key Employee's employment agreement, an estimate of
each such amount is set forth on Section 5.7 of the Target Disclosure
Letter. The Parent Entities further agree that all Non-Covered Employees
who are terminated without cause within twelve months following the Closing
Date and who execute a general release of claims in a form satisfactory to
the Parent Entities shall be entitled to receive severance compensation
equal to the greater of (subject to the proviso set forth below) (i) two
weeks of such employee's base salary and (ii) the greater of (A) two weeks
of such employee's base salary (the "Severance Base") for each full year of
combined service with Target, a Target Subsidiary (including any
predecessor thereof) and the Parent Entities and, for any partial year of
such service, a pro rata amount of such employee's Severance Base based on
the number of whole months elapsed in such partial year divided by 12 or
(B) in the event that the Non-Covered Employee has at least 15 years of
such service, one year of such employee's base salary; provided, however,
that under no circumstances will such employee be entitled to receive
greater than one year of such employee's base salary (the "Severance
Payment"). It is understood and agreed that the Severance Payment to
Non-Covered Employees and the payments to the employees identified on
Section 5.7 of the Target Disclosure Letter shall be in lieu of any other
severance benefits (except as required by applicable law) that any such
employee is entitled to receive and will be applied against any liability
of the Parent Entities which may arise under the Worker Adjustment and
Retaining Notification Act ("WARN"). If the Parent Entities determine that
liability under WARN could arise as a result of employment terminations,
Target will cooperate reasonably with the Parent Entities in connection
with the delivery of WARN notices to affected employees prior to the
Closing Date.
(b) Benefit Plans. Upon and after the Closing Date, each Parent
Entity shall allow employees of Target who become employees of such Parent
Entity to participate in employee benefit plans of such Parent Entity which
are made available generally to similarly situated employees of such Parent
Entity. With respect to any such plan which is an "employee benefit plan"
as defined in Section 3(3) of ERISA and any other service based benefits
(including vacations) in which the employees of Target may participate,
solely for purposes of determining eligibility to participate, vesting and
entitlement to benefits but not for purposes of accrual of benefits (except
in the case of accrued vacation, sick or personal time), service with
Target or any Target Subsidiary shall be treated as service with such
Parent Entity; provided, however, that such service shall not be recognized
to the extent that such recognition would result in a duplication of
benefits under both a Target Employee Benefit Plan and a benefit plan of
such Parent Entity (or is not otherwise recognized for such purposes under
the benefit plans of such Parent Entity). Without limiting the foregoing,
the Parent Entities shall not treat any Target employee as a "new" employee
for purposes of any pre-existing condition exclusions, waiting periods,
evidence of insurability requirements or similar provision under any health
or other welfare plan, and will make appropriate arrangements with its
insurance carrier(s), to the extent applicable, to ensure such result.
(c) Nothing in this Agreement shall preclude the Parent Entities,
Target or any Target Subsidiary from terminating the employment of any
employee of Target or any Target Subsidiaries at any time on or after the
Closing Date.
(d) Prior to the Closing Date, Target will take all actions
necessary to:
(i) cause each outstanding stock appreciation right ("SAR")
granted under the Urban Shopping Centers 2001 Stock Appreciation
Rights Plan (the "2001 SAR Plan") to be cancelled on the Closing Date,
and in full satisfaction of such cancellation each holder thereof
shall be entitled to receive on the Closing Date in exchange, with
respect to each SAR, an amount equal to the Per Share Consideration
less the Exercise Price (as defined in the 2001 SAR Plan) multiplied
by the number of Covered Shares (as defined in the SAR Agreement
evidencing the SAR) to which such SAR relates;
(ii) cause all Restricted Stock (as that term is defined
under the Urban Shopping Centers 2001 Incentive Program (the "2001
Incentive Program")) granted under the 2001 Incentive Program (it
being acknowledged by the parties that the transactions contemplated
by this Agreement shall cause all Restricted Stock to become
immediately vested in full) to be cancelled on the Closing Date, and
in full satisfaction of such cancellation each holder thereof shall be
entitled to receive in exchange a cash payment on the Closing Date
equal to the product of his or her shares of Restricted Stock
multiplied by the Per Share Consideration;
(iii) cause each outstanding share of Earned Incentive Stock
(as that term is defined in the 2001 Incentive Program) granted under
the 2001 Incentive Program (it being acknowledged by the parties that
all shares of Incentive Stock eligible to be earned during the 2001
Program Year (as provided in Section 4.1 of the 2001 Incentive
Program) shall be deemed to be Earned Incentive Stock) to be cancelled
on the Closing Date, and in full satisfaction of such cancellation
each holder thereof shall be entitled to receive a cash payment on the
Closing Date equal to the product of his or her shares of Earned
Incentive Stock multiplied by the Per Share Consideration;
(iv) cause all Incentive Stock (as such term is defined
under the 2001 Incentive Program) granted under the 2001 Incentive
Program that is not Earned Incentive Stock (i.e., Incentive Stock
eligible to earned in the 2002, 2003 and 2004 Program Years) or deemed
to be Earned Incentive Stock for purposes of this Agreement to be
forfeited on the Closing Date; and
(v) cause each of the 2001 SAR Plan and the 2001 Incentive
Plan to be terminated.
SECTION 5.8. No Solicitation of Acquisition Proposals. Target shall
not, and it shall cause its Subsidiaries and the officers, directors,
employees, agents and representatives of Target and its Subsidiaries
(collectively, the "Target Representatives") not to, (i) solicit or
encourage, directly or indirectly, the making of any Acquisition Proposal,
(ii) initiate any discussion or engage in negotiations with or provide any
information to any entity relating to an Acquisition Proposal, or take any
other action to knowingly facilitate the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Acquisition
Proposal, or (iii) endorse or enter into any Acquisition Proposal or modify
or withdraw its recommendation of the Purchase. Except as permitted by
Section 5.8 hereof, Target and the Target Representatives will immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any Third Parties conducted heretofore with respect to
any Acquisition Proposal. Notwithstanding the foregoing, Target may engage
in discussions or provide information with respect to an unsolicited bona
fide written Acquisition Proposal if (i) Target and the Supervisory Board
of Target conclude in good faith that such Acquisition Proposal is
reasonably likely to result in a Superior Proposal (as hereinafter
defined), (ii) prior to providing any information to any Person in
connection with an Acquisition Proposal by any such Person, Target receives
from such Person an executed confidentiality agreement on terms
substantially similar to, and no less restrictive to such Person than those
contained in the Hoosier Confidentiality Agreement and (iii) prior to
providing any information to any Person or entering into discussions with
any Person, Target notifies Purchasers promptly of such Acquisition
Proposal or negotiations, including the name of such Person and the
material terms and conditions of such Acquisition Proposal (including a
copy of any written proposal and any written documentation). Target shall
notify Purchasers promptly, but in any event within 24 hours, of any
Acquisition Proposal or any inquiry with respect to or which could
reasonably be expected to lead to an Acquisition Proposal received by any
Target or the Target Representatives, the terms and conditions of such
proposal (including a copy of any written proposal and any written
documentation) and the identity of the Person making the proposal or offer
or inquiry. Target will promptly notify Purchasers of any material change
in the status and details of any such Acquisition Proposal or inquiry.
Target will promptly provide to Purchasers any non-public information
concerning Target or its Subsidiaries provided to any other Person which
was not previously provided to Purchasers. In addition, Target and the
Supervisory Board of Target may withdraw or modify their recommendation of
the Purchase or approve a Superior Proposal and enter into an agreement
with respect thereto if (x) a Superior Proposal is pending, (y) Target has
provided Purchasers with notice that it has received a Superior Proposal
which it intends to accept (specifying the offeror and the material terms
and conditions of such Superior Proposal) and (if requested by Purchasers)
has negotiated in good faith with Purchasers during the three (3) Business
Days following Purchasers' receipt of such notice to attempt to make such
adjustments to this Agreement as would enable Target and Purchasers to
proceed with the Purchase on such adjusted terms and (z) this Agreement is
terminated in connection with such Superior Proposal and the Break-Up Fee
is paid. "Superior Proposal" means an unsolicited bona fide written
proposal by a Third Party to acquire all or substantially all of the Assets
(i) on terms which the Supervisory Board determines in good faith (after
consultation with its financial advisors and legal counsel) to be more
favorable from a financial point of view to the shareholders of Target than
the terms contemplated by this Agreement, (ii) is not conditioned upon
obtaining financing not fully committed at such time and (iii) which is
reasonably capable of being consummated without undue delay in the good
faith judgment of the Supervisory Board of Target. "Acquisition Proposal"
means any inquiry, proposal or offer, whether in writing or otherwise, from
a Third Party to acquire beneficial ownership of all or more than 20% of
the assets of Target and the Target Subsidiaries, taken as a whole, or 20%
or more of any class of equity securities of Target or of any Target
Subsidiary which owns, directly or indirectly, more than 50% of the Assets
pursuant to a merger, consolidation or other business combination, sale of
shares of capital stock, sale of assets, tender offer, exchange offer or
similar transaction with respect to either Target or any such Target
Subsidiary, including any single or multi-step transaction or series of
related transactions, which is structured to permit such Third Party to
acquire beneficial ownership of more than 20% of the assets of Target and
the Target Subsidiaries, taken as a whole, or 20% or more of any class of
equity securities of Target or any Target Subsidiary which owns, directly
or indirectly, more than 50% of the Assets.
SECTION 5.9. Public Announcements. Target, on the one hand, and the
Purchaser Parties, collectively, on the other hand, shall consult with each
other before issuing any press release with respect to this Agreement or
any of the transactions contemplated by this Agreement and shall not issue
any such press release without having first provided a copy of any such
press release to Target, on the one hand, or the Purchaser Parties, on the
other hand, as the case may be.
SECTION 5.10. Agreements Regarding the Disposal of Properties. At the
direction of Purchasers, Target shall cause each applicable Target
Subsidiary to enter into an agreement, in form and substance reasonably
acceptable to Purchasers (each a "Disposal Agreement"), to sell the
properties identified in Section 5.10 of the Target Disclosure Letter (each
a "Disposal Property") to one or more parties as may be designated by
Purchasers. Under each such Disposal Agreement, the sale of the Disposal
Property will be scheduled to close (with "time being of the essence" with
respect to such closing) prior to the Closing of the Purchase or at such
date after the Closing as Purchasers may agree. Target shall, and shall
cause the applicable Target Subsidiaries to, use its and their reasonable
best efforts to consummate the sale of each Disposal Property in accordance
with the terms and conditions of the applicable Disposal Agreement;
provided, however, that the proceeds received by Target or a Target
Subsidiary in consideration for the disposition of any Disposal Property
(i) shall not be less than the minimum price set forth for such Disposal
Property in Section 5.10 of the Target Disclosure Letter and (ii) shall be
used by Target to pay existing indebtedness; and provided, further, that,
with respect to the 745 Property, such Disposal Agreement shall provide
that (i) such applicable Target Subsidiary shall not be obligated to
consummate such sale unless the Purchase will be consummated immediately
thereafter and (ii) in the event this Agreement is terminated in accordance
with Article VIII such Target Subsidiary shall have the right to terminate
such Disposal Agreement without any cost, penalty or liability thereto.
Target shall cooperate with Purchasers in the negotiation and consummation
of any Disposal Agreement, including, without limitation, granting any
potential buyer permission to conduct usual and customary due diligence in
connection with such sale. Each applicable Target Subsidiary shall enter
into any Disposal Agreement as Purchasers shall in good faith direct.
Purchasers shall indemnify and hold the applicable Target Subsidiary
harmless from any liability in connection with any such Disposal Agreement.
Neither Target nor any Target Subsidiary shall take any action it is
entitled to take under, or relating to, any such Disposal Agreement, or
exercise any remedy in connection with any such Disposal Agreement, without
the prior written consent of Purchasers and, upon the instruction of
Purchasers, Target and any Target Subsidiary shall promptly take such
action and/or exercise any remedy in connection with any such Disposal
Agreement as Purchasers shall direct (provided that such action or remedy
is permitted or provided for under the applicable Disposal Agreement). At
the closing of the transaction contemplated by a Disposal Agreement, Target
and any Target Subsidiary shall deliver to the purchaser thereunder all
documents, agreements, instruments and Necessary Consents described in
Section 2.5 which are applicable thereto (including, without limitation,
instruments sufficient to convey the Target Tangible Personal Property
associated with such Target Property).
SECTION 5.11. Indemnification; Directors' and Officers' Insurance.
(a) It is understood and agreed that, subject to the limitations
on indemnification under applicable law, Hoosier and Terrapin (the
"Indemnifying Parties") shall, to the fullest extent permitted under
applicable law, indemnify and hold harmless, for a period of six years
following the Closing, (i) each present and former managing or supervisory
director, officer and employee of the Target or any Target Subsidiary
against any costs or expenses (including reasonable attorneys' fees),
judgments, fines, losses, claims, damages, liabilities and amounts paid in
settlement in connection with any claim, action, suit, proceeding or
investigation (collectively, "Losses") arising out of any action taken or
omission occurring at or prior to the Closing Date and (ii) each present
and former managing or supervisory director, officer and employee of any
Target Non-Purchased Entity (together with the persons with indemnification
rights pursuant to clause (i) above, collectively, the "Indemnified
Parties") against any Losses arising out of his or her good faith actions
in connection with the distribution of the Purchase Price to Target's
shareholders in accordance with the terms and conditions of the Protocol;
provided, that the Indemnifying Parties shall not be liable for any
settlement effected without their prior written consent (which consent
shall not be unreasonably withheld). In connection therewith, (A) the
Indemnifying Parties shall promptly pay expenses in advance of the final
disposition of any claim, suit, proceeding or investigation to each
Indemnified Party to the full extent permitted by law, subject to the
provision by such Indemnified Party of an undertaking to reimburse the
amounts so advanced in the event of a final non-appealable determination by
a court of competent jurisdiction that such Indemnified Party is not
entitled to such amounts, and (B) the Indemnified Parties may retain one
counsel satisfactory to them (except in case of a conflict of interest
among two or more Indemnified Parties, in which case more than one counsel
may be retained), and the Indemnifying Parties shall promptly pay all
reasonable fees and expenses of such counsel for the Indemnified Parties.
Any Indemnified Party wishing to claim indemnification under this Section
5.11, upon learning of any such claim, action, suit, demand, proceeding or
investigation, shall notify the Indemnifying Parties; provided, that the
failure to so notify shall not affect the obligations of the Indemnifying
Parties except to the extent such failure to notify materially prejudices
such parties.
(b) For a period of six years after the Closing Date, the
Indemnifying Parties will maintain in effect the existing directors' and
officers' liability insurance covering the Indemnified Parties who are
currently covered by Target's and the Target Subsidiaries' officers and
directors liability insurance policies (copies of which policies have been
provided to Purchasers) on terms not less favorable than those in effect on
the date hereof in terms of coverage and amounts and which provide coverage
as to claims arising out of the good faith actions of such Indemnified
Persons in connection with the distribution of the Purchase Price to
Target's shareholders in accordance with the terms and conditions of the
Protocol; provided, however, that if the aggregate annual premiums for such
insurance at any time during such period exceed the per annum rate of
premium paid by Target for such insurance as of the date of this Agreement,
then the Indemnifying Parties shall provide the maximum coverage that will
then be available at an annual premium equal to 175% of such per annum rate
as of the date of this Agreement.
(c) This Section 5.11 is intended for the irrevocable benefit of,
and to grant third party rights to, the Indemnified Parties and shall be
binding on all successors and assigns of the Indemnifying Parties. Each of
the Indemnified Parties shall be entitled to enforce the covenants
contained in this Section 5.11.
(d) In the event that any of Purchasers or any of its successors
or assigns (i) consolidates with or merges into any other person or entity
and shall not be the continuing or surviving entity of such consolidation
or merger or (ii) transfers or conveys a majority of its properties and
assets to any person or entity, then, and in each such case, proper
provision shall be made so that the successors, assigns and transferees of
such Indemnifying Party assume the obligations set forth in this Section
5.11.
(e) To the extent permitted by law, all rights of indemnification
for the benefit of any Indemnified Party shall be mandatory rather than
permissive.
(f) The liabilities and obligations assumed by the Indemnifying
Parties under this Section 5.11(a)-(e) are referred to herein as the "H&T
Assumed Liabilities". Following the Closing, Purchasers shall indemnify and
hold harmless each Target Non-Purchased Entity against any claims arising
in respect of the Non-Financial Covenants.
SECTION 5.12. Shareholders' Meeting
(a) Target shall as promptly as practicable duly call, give
notice of and take all other action necessary in accordance with applicable
law to convene, and hold a meeting of its shareholders (the "Shareholders
Meeting") for the purpose of obtaining the affirmative vote of holders of
Ordinary Shares of Target casting at least two-thirds of the votes cast and
excluding all Ordinary Shares, if any, owned by the Voting Trust (i) to
approve the Purchase, (ii) to approve the Distribution, conditioned only
upon the Closing, (iii) to appoint at Closing one person designated by
Westfield Limited (the "Westfield Designee") to the Board of Liquidators,
provided that Target shall have the right to object to the Westfield
Designee on a reasonable basis, provided, further, that if no Westfield
Designee is appointed to the Board of Liquidators at Closing (due to the
failure of the Westfield Designee to obtain the required approval of the
Dutch Central Bank, as a result of the objection by Target or otherwise),
the Board of Liquidators shall consult with Westfield Limited on a
reasonable basis on matters related to, or in connection with, the
Distribution, provided, further, that Target shall have no obligation
pursuant to this clause (iii) if Westfield Limited transfers all of its
equity ownership in Target to an unaffiliated third party, and (iv) to
appoint the members of the Management Board as liquidators to carry out the
Distribution in accordance with the Protocol, and shall take all lawful
action to solicit the approval of such transactions by such vote. The
Management Board and the Supervisory Board of Target shall recommend that
holders of Ordinary Shares vote in favor of such resolutions. Subject to
Section 5.8, the Supervisory Board shall not withdraw or modify in a manner
adverse to Purchasers its recommendation of the resolutions. Target agrees
that it will not cancel, postpone or adjourn the date of the Shareholders
Meeting or change the items on the agenda without the agreement of
Purchasers.
(b) As promptly as reasonably practicable after the date of this
Agreement, Target shall prepare a shareholder circular relating to the
matters to be submitted to the shareholders of Target at the Shareholders
Meeting. Target shall provide Purchasers with a reasonable opportunity to
review and comment on the shareholder circular, and on any amendment or
supplement thereto, and shall not distribute the shareholder circular, or
any amendment or supplement thereto, to its shareholders prior to the
approval of such document by the Purchasers, which approval shall not be
unreasonably withheld or delayed. The shareholder circular shall comply as
to form in all material respects with the applicable provisions of
applicable law. Each Purchaser shall furnish all information concerning
itself and its Affiliates which is required or customary for inclusion
therein. If at any time prior to the Shareholders Meeting any information
relating to Target or Purchasers, or any of their respective Affiliates,
officers or directors, should be discovered by Target or Purchasers which
should be set forth in an amendment or supplement to the shareholder
circular so that such document would not include any misstatement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, the party which discovers such information shall
promptly notify the other party and, to the extent required by law, rules
or regulations, an appropriate amendment or supplement describing such
information shall be promptly and disseminated to the shareholders of
Target.
SECTION 5.13. Voting Trust. Target hereby agrees to take all necessary
and appropriate actions to implement the Voting Trust Redemption at Closing
at a price not to exceed (i) the original issue price of such Ordinary
Shares plus (ii) accrued and unpaid interest thereon plus (iii) related
financing and administrative costs in an amount not to exceed $7,500,000.
Target shall take all necessary and appropriate actions to procure that the
Agreement Regarding the Acquisition of Shares in Target, dated September
23, 2001, be terminated at Closing and thereafter shall be of no further
force and effect.
SECTION 5.14. Funding of Purchase Price. The Parent Entities shall
cause the Purchasers to fulfill their obligations hereunder to consummate
the Purchase in accordance with the terms and conditions of this Agreement,
including by funding the Purchasers with an amount of cash necessary to
permit the payment of the Purchase Price by the Purchasers at Closing in
accordance with Article II hereof. For avoidance of doubt, this Section
5.14 shall terminate as of the Closing.
SECTION 5.15. Officers and Directors. Upon the written request of
Purchasers, (i) Target shall cause any or all of the directors (or persons
occupying similar positions in any limited liability company or other
entity) and/or officers of each direct or indirect wholly owned Target
Subsidiary (excluding any Target Non-Purchased Entity) to resign or be
removed or, as to officers, to be terminated, effective as of the Closing,
and (ii) if Target or any of its affiliated entities has the right to
appoint any director (or person occupying a similar position in any limited
liability company or other entity) or to cause the resignation or
termination of any officer of any other entity in which Target (directly or
indirectly) owns an equity interest (excluding any Target Non-Purchased
Entity), Target shall cause, effective as of the Closing, such director to
resign or to be removed and/or such officer to resign or be terminated.
SECTION 5.16. Urban Retail Properties. Target shall cause to be
delivered to Purchasers at Closing, directly or indirectly, all outstanding
equity interests in Urban Retail Properties, Co. Such equity interests
shall be an Asset hereunder and shall be delivered to the Purchaser Parties
for no additional consideration and shall be obtained by Target for no
consideration other than the cancellation of the promissory note, dated
November 8, 2000, issued by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in favor of Novi Mall
Associates.
ARTICLE VI
TAX MATTERS
SECTION 6.1. Assumption of Taxes. Subject to Section 7.1, Purchasers
shall each assume joint and several liability for all Taxes (whether fixed
or contingent) of each Target Non-Purchased Entity (including, without
limitation, any liability for income Taxes of any such party and any
liability for Transfer and Gains Taxes resulting from the consummation of
the transactions contemplated by the Transaction Documents incurred or
payable on, before, or after the Closing Date (collectively, the "Assumed
Taxes")); provided, however, that no Purchaser Party shall assume (i)
liability for any Taxes arising from any actions or omissions of Target or
the Target Non-Purchased Entities occurring after the Closing Date (other
than for taxes payable to any U.S. taxing authority in connection with the
liquidation of Hexalon), (ii) any liability that any such party may have
for another Person's Taxes, other than the Urban Tax Indemnification
Agreement and the Tax Protection Agreement(s) disclosed in Section 3.14(h)
of the Target Disclosure Letter, or (iii) any Taxes imposed by any Dutch
Governmental Entity in respect of the transactions contemplated by this
Agreement, the Protocol or arising after the Closing (collectively, the
"Excluded Taxes").
SECTION 6.2. Indemnification. Purchasers shall on a joint and several
basis indemnify and hold harmless each Target Non-Purchased Entity and any
shareholder, director, officer, or employee of a Target Non Purchased
Entity for all Assumed Taxes.
SECTION 6.3. Tax Contests. Target hereby grants Purchasers full
authority to assume full and primary responsibility to contest, at their
sole discretion and expense, any matter relating to the Assumed Taxes and
shall indemnify each Target Non-Purchased Entity, and all shareholders,
directors, officers, and employees of Target Non-Purchased Entities from
any costs that such parties may incur in defending or participating in such
contests.
SECTION 6.4. Tax Refunds. Purchaser shall be entitled to all refunds
for Assumed Taxes otherwise payable to Target or a Target Non-Purchased
Entity.
SECTION 6.5. Withholding Certificates. Neither Purchasers nor any of
their respective agents shall be entitled to deduct and withhold from the
Purchase Price otherwise payable pursuant to this Agreement to Target
and/or any Target Subsidiary and/or any Target Non-Subsidiary Entity and/or
any Target Non-Purchased Entity any amounts under Section 1445 of the Code;
provided, however, Target and/or any Target Subsidiary and/or any Target
Non-Subsidiary Entity and/or any Target Non-Purchased Entity shall each
apply for and obtain a reduced withholding certificate under the
appropriate Treasury Regulations under Section 1445 of the Code from the
IRS on or before the Closing Date (including, without limitation, a reduced
withholding certificate in connection with the liquidation of Hexalon) and
to the extent any of them provides Purchasers a notice that complies with
Treasury Regulation section 1.1445-1(c)(2)(i)(B), Purchasers shall not pay
over the withheld amounts to the IRS but will contribute such amounts to an
escrow account established for the benefit of Purchasers in form reasonably
satisfactory to Purchasers, including such terms as are necessary to allow
Hexalon to maintain its REIT status during the term of the escrow. Any
amounts paid in lieu of the amounts withheld and paid to the IRS shall be
treated by the parties for all tax reporting purposes as paid to Target for
the Australian Interests. The Purchasers shall be entitled to claim refunds
in respect of any Taxes paid by Purchasers and such refunds shall belong to
Purchasers. Target shall cooperate, and Target shall cause the other Target
Non-Purchased Entities to cooperate, with Purchasers in seeking any such
refunds.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.1. Conditions to Obligations of Purchasers. The obligations
of Purchasers to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment, at or prior to the Closing, of each of
the following conditions unless waived by Purchasers:
(a) Target Shareholder Approval. The Purchase and the
Distribution shall have been duly approved and adopted at the Shareholders
Meeting by the affirmative vote of the holders of Ordinary Shares of Target
casting at least two-thirds of the votes cast excluding all Ordinary
Shares, if any, beneficially owned by the Voting Trust (the "Target
Shareholder Approval");
(b) Distribution. The amount per Ordinary Share (without regard
to the Ordinary Shares held by the Voting Trust) to be distributed by
Target to its shareholders pursuant to the Distribution shall not be less
than Euro 53 (prior to giving effect to any withholding tax to be withheld
by Target under Dutch law) and the Distribution shall be imminent (assuming
payment by Purchasers of the Purchase Price);
(c) No Proceedings. No claim, suit, action or other proceeding
arising out of the transactions contemplated hereby has been brought (and
remains pending) by a Governmental Entity or any third party (other than a
Purchaser Party or an Affiliate or Subsidiary of a Purchaser Party
(excluding Target and any Target Subsidiary)):
(i) that is reasonably likely to (A) prohibit or impose any
material limitations on any Parent Entity's (or any of its respective
Subsidiary's or Affiliate's) ownership or operation of all or a
material portion of (1) the Assets or (2) the business or assets of
such Parent Entity and its respective Subsidiaries and Affiliates,
taken as a whole, or (B) compel any Parent Entity or Target or any of
their respective Subsidiaries or Affiliates, as the case may be, to
dispose of or hold separate any material portion of (1) the Assets or
(2) the business or assets of such Parent Entity and its respective
Subsidiaries and Affiliates, taken as a whole;
(ii) that is reasonably likely to restrain or prohibit the
Closing or the performance of any transaction contemplated by the
Transaction Documents, or is reasonably likely to obtain from Target
or the Purchaser Parties any damages that are material in relation to
Target or the Target Subsidiaries taken as a whole, or
(iii) which otherwise is reasonably likely to have a
material adverse affect on the consolidated financial condition,
businesses or results of operations of any of the Parent Entities.
(d) No Legal Restraints. No Governmental Entity shall have
enacted, issued, promulgated, enforced or entered any law, rule,
regulation, executive order, decree, restraining order, injunction or other
order (whether temporary, preliminary or permanent) or other legal or
regulatory restraint which is then in effect (which order or other action
the parties hereto shall use their reasonable best efforts to vacate or
lift) and which prohibits or precludes the consummation of the Purchase;
(e) Consents. All consents and waivers identified on Section
7.1(d) of the Target Disclosure Letter shall have been obtained (the
"Necessary Consents");
(f) HSR Act, Etc. Any waiting period applicable to the
consummation of the Purchase under the HSR Act shall have expired or been
terminated; any required approval of the Purchase by the European
Commission pursuant to the EC Merger Regulations shall have been obtained;
(g) Representations, Warranties. All representations and
warranties of Target contained in this Agreement (without giving effect to
any materiality or similar qualifications) shall be true and correct as of
the Closing (except to the extent that any such representation or warranty,
by its terms, is expressly limited to a specific date, in which case such
representation or warranty shall be true and correct as of such date),
except where the failure to be so true and correct would not reasonably be
expected to result, individually or in the aggregate, in a Target Material
Adverse Effect;
(h) Performance of Covenants. All the agreements contained in
this Agreement to be performed by Target on or before the Closing Date
shall have been performed in all material respects;
(i) No Target Material Adverse Effect. Since the date of this
Agreement, there shall not have occurred any event, change, effect or
development that, individually or in the aggregate with any other event,
change, effect or development since the date of this Agreement, which has
had or would reasonably be expected to have a Target Material Adverse
Effect, provided, that for purposes of this Section 7.1(h) only, each
Target Non-Subsidiary Entity shall be deemed to be a Target Subsidiary;
(j) Tax Deliveries. Purchasers shall have received the Loyens Tax
Opinion and the ▇▇▇▇▇▇▇▇ Letter to be delivered at Closing pursuant to
Section 5.2 and all applicable withholding certificates approved by the IRS
as required by Section 6.5; and
(k) Final Pro Forma Tax Returns. The final Pro Forma Tax Returns
delivered to Purchasers pursuant to Section 5.2(f) shall reflect no
aggregate liability for Taxes (including, without limitation, any
withholding taxes reflected in the IRS withholding certificates required by
Section 6.5) other than (i) Excluded Taxes, (ii) Transfer and Gain Taxes
not exceeding $15,000,000 in the aggregate and (iii) other Taxes in an
aggregate amount not exceeding $3,000,000.
SECTION 7.2. Conditions to Obligations of Target. The obligations of
Target to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment, at or prior to the Closing, of each of the
following conditions unless waived by Target:
(a) Target Shareholder Approval. The Purchase and the
Distribution shall have been duly approved and adopted at the Shareholders
Meeting by the affirmative vote of the holders of Ordinary Shares of Target
casting at least two-thirds of the votes cast excluding all Ordinary
Shares, if any, beneficially owned by the Voting Trust;
(b) Distribution. Subject to Section 8.1(k), the amount per
Ordinary Share (without regard to the Ordinary Shares held by the Voting
Trust) to be distributed by Target to its shareholders pursuant to the
Distribution shall not be less than the Target Minimum Amount;
(c) No Legal Restraints. No Governmental Entity shall have
enacted, issued, promulgated, enforced or entered any law, rule,
regulation, executive order, decree, restraining order, injunction or other
order (whether temporary, preliminary or permanent) or other legal or
regulatory restraint which is then in effect (which order or other action
the parties hereto shall use their reasonable best efforts to vacate or
lift) and which prohibits or precludes the consummation of the Purchase;
(d) HSR Act, Etc. Any waiting period applicable to the
consummation of the Purchase under the HSR Act shall have expired or been
terminated; any required approval of the Purchase by the European
Commission pursuant to the EC Merger Regulations shall have been obtained;
(e) Representations, Warranties. All representations and
warranties of the Purchaser Parties contained in this Agreement (without
giving effect to any materiality or similar qualifications) shall be true
and correct as of the Closing (except to the extent that any such
representation or warranty, by its terms, is expressly limited to a
specific date, in which case such representation or warranty shall be true
and correct as of such date), except where the failure to be so true and
correct would not reasonably be expected to have a material adverse effect
on Purchasers' ability to complete the Purchase; or
(f) Performance of Covenants. All the agreements contained in
this Agreement to be performed by the Purchaser Parties on or before the
Closing Date shall have been performed in all material respects.
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing (notwithstanding any approval of the Purchase or any of the other
transactions contemplated by this Agreement by the shareholders of Target):
(a) by mutual written consent of Target and Purchasers;
(b) by Target or Purchasers if any Governmental Entity shall have
issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Purchase and such
order, decree or ruling or other action shall have become final and
non-appealable; provided, that the party seeking to terminate this
Agreement pursuant to this clause (b) shall have used reasonable best
efforts to remove such order, decree, ruling or judgment or to reverse such
action;
(c) by Target if the Supervisory Board of Target elects to accept
a Superior Proposal; provided, that this Agreement may not be terminated
under this Section 8.1(c) unless Target has complied in all material
respects with the provisions of Section 5.8, including by notifying
Purchasers in writing not less than three (3) Business Days prior to taking
such action of its intention to take such action and during such three (3)
Business Day period (if requested by Purchasers) negotiating in good faith
with Purchasers in an attempt to make adjustments to this Agreement such
that the Acquisition Proposal that the Supervisory Board was prepared to
accept is no longer a Superior Proposal; and provided, further, that it
shall be a condition to termination pursuant to this Section 8.1(c) that
the Target shall have made the payment of the Break-Up Fee to the
Purchasers required by Section 9.2.
(d) by Purchasers, if the Supervisory Board of Target approves or
recommends a Superior Proposal or the Supervisory Board withdraws or
modifies its recommendation of the Purchase in a manner adverse to
Purchasers (or resolves to take any of such actions);
(e) by Purchasers, if any of the following events shall occur and
be continuing or conditions exists: (i) any of the representations and
warranties of Target contained in this Agreement (without giving effect to
any materiality or similar qualifications) shall not be true and correct,
in each case as of the date of determination (except to the extent that any
such representation or warranty, by its terms, is expressly limited to a
specific date, in which case such representation or warranty shall not be
true and correct as of such date), in each case where such failure to be so
true and correct would reasonably be expected to result, individually or in
the aggregate, in a Target Material Adverse Effect; or (ii) Target shall
have failed to perform in all material respects any of its agreements
contained in this Agreement required to be performed at or prior to the
date of determination (any such event or condition described in this clause
(ii), a "Terminating Target Breach") and such Terminating Target Breach (A)
is not cured by Target within twenty (20) calendar days after receipt of
notice of the Terminating Target Breach or (B) is not curable prior to July
15, 2002; or
(f) by Target, if any of the following events shall occur and be
continuing or conditions exists: (i) any of the representations and
warranties of the Purchaser Parties contained in this Agreement (without
giving effect to any materiality or similar qualifications) shall not be
true and correct, in each case as of the date of determination (except to
the extent that any such representation or warranty, by its terms, is
expressly limited to a specific date, in which case such representation or
warranty shall not be true and correct as of such date), in each case where
such failure to be so true and correct would reasonably be expected to have
a material adverse effect on Purchasers' ability to complete the Purchase;
or (ii) the Purchaser Parties shall have failed to perform in all material
respects any of their agreements contained in this Agreement required to be
performed at or prior to the date of determination (any such event or
condition described in this cause (ii), a "Terminating Purchasers Breach")
and such Terminating Purchasers Breach (A) is not cured by the Purchaser
Parties within twenty (20) calendar days after receipt of notice of the
Terminating Purchasers Breach or (B) is not curable prior to July 15, 2002;
or
(g) by Target or Purchasers, if the approval of the Purchase by
the shareholders of Target shall not have been obtained by reason of the
failure to obtain the requisite vote at a duly held meeting of shareholders
of Target, or at any adjournment thereof; or
(h) by Purchasers, if Target fails to perform in all material
respects any of its obligations contained in the Protocol; or
(i) by Target, if any Purchaser Party fails to perform in all
material respects any of its obligations contained in the Protocol; or
(j) by Target or Purchasers, if the Closing shall not have
occurred on or prior to July 15, 2002 (the "Termination Date"); provided,
however, that the right to terminate this Agreement under this Section
8.1(j) shall not be available to any party whose failure to fulfill any
obligation under this Agreement (including without limitation Section
5.4(a)) has to any extent been the cause of, or resulted in, the failure of
the Closing to occur on or before the Termination Date; or
(k) by Target, if the amount per Ordinary Share to be distributed
by Target to Target shareholders, in accordance with the Protocol, will be
less than Euro 53 (prior to giving effect to any withholding tax to be
withheld by Target under Dutch law and without regard to the Ordinary
Shares held by the Voting Trust) solely as a result of surtax tax imposed
under Article IV. B. Inroeringswet Inkomstenlselasting 2001 (the "Target
Minimum Amount") and if the Supervisory Board of Target has given each
Parent Entity written notice of Target's election to terminate this
Agreement pursuant to this Section 8.1(k) and such notice describes in
reasonable detail the reasons that the amount per Ordinary Share to be
distributed will be less than Euro 53; provided, however, that the Parent
Entities may, at their sole option, either: (i) nullify such election to
terminate by giving written notice to the Supervisory Board of Target,
within five Business Days after all of the Parent Entities have received
Target's notice, that the Parent Entities will agree to a delay in the
distribution of a portion of the amount to be distributed to Target
shareholders and to amend the Protocol in conjunction with Target to
reflect such delay (so long as such delay does not extend later than
January 30, 2003) such that the amount per Ordinary Share distributed, in
accordance with the Protocol, will equal not less than the Target Minimum
Amount; or (ii) accept such termination by giving written notice to the
Supervisory Board of Target, within five Business Days after all of the
Parent Entities have received Target's notice, and provided, further, that
it shall be a condition to termination pursuant to this Section 8.1(k) that
the Target shall have made the payment of the Break-Up Expenses to the
Purchasers required by Section 9.2.
SECTION 8.2. Effect Of Termination. In the event of termination of
this Agreement by either Target or Purchasers as provided in Section 8.1,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Target or any Purchaser Party, other
than the last sentence of Section 5.3, Section 8.1, this Section 8.2,
Section 9.2 and except to the extent that such termination results from a
willful breach by a party of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. Non-Survival Of Representations and Warranties. None of
the representations and warranties in this Agreement or in any instrument
(other than the ▇▇▇▇▇▇▇▇ Letter, the Loyens Tax Opinion and the final Pro
Forma Tax Returns) delivered pursuant to this Agreement shall survive the
Closing (and thereafter no party shall have the right to commence any
action alleging any breach of such representations or warranties) or the
termination of this Agreement pursuant to Section 8.1, as the case may be.
This Section 9.1 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Closing.
SECTION 9.2. Expenses.
(a) Except as otherwise specified in this Section 9.2 or agreed
in writing by the parties, all costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs and expenses, whether or not the Closing shall have occurred.
(b) Target agrees that if this Agreement shall be terminated
pursuant to Section 8.1(b) or (e) or (h) or (k), then Target will pay to
each Purchaser, or to such party or parties as directed by such Purchaser,
a cash amount in Euros equal to the Break-Up Expenses (as hereinafter
defined) applicable to such Purchaser. Target also agrees that (i) if this
Agreement shall be terminated pursuant to Section 8.1(j) and the closing
has not occurred prior to the Termination Date due to a failure to obtain a
Necessary Consent (provided that Purchasers have complied with Section
5.4(a)), then Target will pay to each Purchaser, or to such party or
parties as directed by such Purchaser, a cash amount in Euros equal to the
Reduced Break-Up Expenses applicable to such Purchaser and (ii) if this
Agreement shall be terminated pursuant to Section 8.1(j) and the closing
has not occurred prior to the Termination Date due to a failure to fulfill
Section 7.1(c) (provided that Purchasers have complied with Section
5.4(a)), then Target will pay to each Purchaser, or to such party or
parties as directed by such Purchaser, a cash amount in Euros equal to the
Break-Up Expenses applicable to such Purchaser. Target further agrees that
(i) if this Agreement is terminated pursuant to Section 8.1(c) or (d), or
(ii) if (A) Purchasers or Target shall terminate this Agreement pursuant to
Section 8.1(g) (provided that the basis for such termination is the failure
of Target's shareholders to approve the Purchase) or Section 8.1(j) without
the Shareholders Meeting having occurred, (B) at any time after the date of
this Agreement and at or before the time of the event giving rise to such
termination there shall exist an Acquisition Proposal with respect to
Target, and (C) within 12 months of any such termination of this Agreement,
Target or any of its Subsidiaries shall enter into a definitive agreement
with any third party with respect to a Majority Acquisition Proposal or a
Majority Acquisition Proposal is consummated, then Target shall pay to
Purchasers, or as otherwise directed by Purchasers, an aggregate cash
amount in Euros equal to the Break-Up Fee (as hereinafter defined);
provided, however, that any such Break-Up Fee payable in connection with a
termination pursuant to Section 8.1(j) shall be reduced by the amount of
any prior payment of Break-Up Expenses or Reduced Break-Up Expenses.
Payment of any of such amounts by Target, and any allocation between
Purchasers of such amounts shall be made, as jointly directed by Purchasers
in writing, by prompt wire transfer of immediately available funds, but in
no event later than the date of termination (or in the case of clause (ii),
if later, the date Target or its Subsidiary enters into such agreement with
respect to or consummates such Majority Acquisition Proposal) by wire
transfer of immediately available funds. A "Majority Acquisition Proposal"
shall be an Acquisition Proposal to acquire at least a majority of the
Assets, whether pursuant to a merger, consolidation or other business
combination, sale of shares of capital stock, sale of assets, tender offer,
exchange offer or similar transaction, including any single or multi-step
transaction or series of related transactions.
(c) For purposes of this Agreement, the "Break-Up Fee" shall be
an aggregate amount equal to 2% of the Purchase Price (with the Purchase
Price calculated as if the Closing Date had occurred on the date of the
termination giving rise to Target's obligation to pay the Break-Up Fee).
(d) For purposes of this Agreement, the "Break-Up Expenses" shall
be an amount equal to the lesser of (i) the actual out-of-pocket expenses
of Purchasers and any of their respective Affiliates incurred in connection
with this Agreement and the transactions contemplated hereby (including,
without limitation, all attorneys', accountants', investment bankers' and
financing sources' fees and expenses) and (ii) 1% of the Purchase Price
(with the Purchase Price calculated as if the Closing Date had occurred on
the date of the termination giving rise to Target's obligation to pay the
Break-Up Expenses). For purposes of this Agreement, the "Reduced Break-Up
Expenses" shall mean the Break-Up Expenses, except that such expenses shall
be capped at 1/2% (rather than 1%) of the Purchase Price.
(e) In the event that either Purchaser is required to file suit
to seek all or a portion of the amounts payable under this Section 9.2, and
Purchasers prevail in such litigation, Purchasers shall be entitled to all
expenses, including attorneys' fees and expenses, which it has incurred in
enforcing its rights under this Section 9.2.
(f) Notwithstanding anything to the contrary in this Agreement,
each Purchaser expressly acknowledges and agrees that, with respect to any
termination of this Agreement pursuant to Section 8.1 in circumstances
where the Break-Up Fee is payable in accordance with Section 9.2(b), the
payment of the Break-Up Fee shall constitute liquidated damages with
respect to any claim for damages or any other claim which such Purchaser
would otherwise be entitled to assert against Target or any Target
Subsidiary or any of their respective assets, or against any of their
respective directors, officers, employees, partners or stockholders, with
respect to this Agreement and the transactions contemplated by this
Agreement and shall constitute the sole and exclusive remedy available to
such Purchaser. The parties hereto expressly acknowledge and agree that, in
light of the difficulty of accurately determining actual damages with
respect to the foregoing upon any termination of this Agreement pursuant to
Section 8.1 in circumstances where the Break-Up Fee is payable in
accordance with Section 9.2(b), the right to payment under Section 9.2(b):
(i) constitutes a reasonable estimate of the damages that will be suffered
by reason of any such proposed or actual termination of this Agreement
pursuant to said section, and (ii) shall be in full and complete
satisfaction of any and all damages arising as a result of the foregoing.
Except for nonpayment of the amounts set forth in Section 9.2(b), each
Purchaser hereby agrees that, upon any termination of this Agreement in
circumstances where the Break-Up Fee is payable, in no event shall such
Purchaser or its affiliated Parent Entity (A) seek to obtain any recovery
or judgment against Target or any Target Subsidiary or any of their
respective assets, or against any of their respective directors, officers,
employees, partners or stockholders, or (B) be entitled to seek or obtain
any other damages of any kind, including, without limitation,
consequential, indirect or punitive damages.
(g) In the event that any Dutch court, including the Enterprise
Chamber determines that any term or provision of Section 5.8 or this
Section 9.2 is unenforceable or unreasonable as a matter of Law, such term
or provision shall automatically be modified to the extent such Dutch court
determines necessary to conform to applicable Law, and this Agreement and,
as applicable, the Protocol, as so modified, shall thereafter remain in
full force and effect. The parties hereto agree that, upon the occurrence
of such an event as described in the immediately preceding sentence, (i)
the Dutch court shall have the power to reduce the amount, scope or
magnitude of any such term or provision, to delete specific words or
phrases from such term or provision, or to replace any invalid or
unenforceable term or provision so implicated with a modified term or
provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision,
(ii) the parties hereto shall request that the Dutch court exercise that
power and (iii) thereafter this Agreement (and the Protocol) shall be
enforceable as so modified after the expiration of the time within which
the judgment or decision may be applied.
(h) Notwithstanding the foregoing, in no event shall the amount
paid to any of the Purchasers pursuant to this Agreement in any tax year
exceed the maximum amount that can be paid to such Purchaser in such year
without causing any REIT with which it is affiliated to fail to meet the
REIT requirements for such year, determined as if the payment of such
amount did not constitute Qualifying Income as determined by independent
accountants to such Purchaser. If the amount payable for any tax year under
the preceding sentence is less that the amount which Target would otherwise
be obligated to pay to the applicable Purchaser pursuant to this Agreement
(the "Expense Amount"), such Purchaser shall so notify Target, and Target
shall (at such Purchaser's sole cost and expense) place the remaining
portion of the Expense Amount in escrow and shall not execute any
instrumentation permitting any release of any portion thereof to the
applicable Purchaser, and the applicable Purchaser shall not be entitled to
any such amount, unless and until Target and escrow holder receive (all at
the applicable Purchaser's sole cost and expense) notice from applicable
Purchaser, together with either (i) an opinion of the applicable
Purchaser's tax counsel to the effect that such amount, if and to the
extent paid, would not constitute gross income which is not Qualifying
Income or (ii) a letter from the applicable Purchaser's independent
accountants indicating the maximum amount that can be paid at that time to
the Purchasers (determined as if such payment did not constitute Qualifying
Income) without causing any REIT with which it is affiliated to fail to
meet the REIT requirements for any relevant taxable year, together with
either an IRS Ruling issued to such REIT or an opinion of such Purchaser's
tax counsel to the effect that such payment would not be treated as
includible in the income of such REIT for any prior taxable year, in which
event escrow holder shall pay such maximum amount. Target's and escrow
holder's obligation to pay any unpaid portion of the Expense Amount shall
terminate ten (10) years from the date of this Agreement, and upon such
date, escrow holder shall remit any remaining funds in escrow to Target and
Target shall have no obligation to make any further payments
notwithstanding that the entire Expense Amount has not been paid as of such
date. For purposes of the foregoing, Qualifying Income shall income
qualifying within the meaning of Section 856(c)(2) of the Code.
SECTION 9.3. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by cable, by telecopy, by telegram,
by telex or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or
at such other address for a party as shall be specified in a notice given
in accordance with this Section 9.3):
(a) if to Target:
Rodamco North America N.V.
c/o Urban Retail Properties Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Wallaby or Wallaby Acquisition Sub:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, Meager & ▇▇▇▇ LLP
One Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
(c) if to Hoosier or Hoosier Acquisition Sub:
National City Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(d) if to Terrapin or Terrapin Acquisition Sub:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Fried ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SECTION 9.4. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 9.5. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 9.6. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect (i) so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party or (ii) in accordance with
Section 9.2(g). Except as otherwise provided in Section 9.2(g) hereof, upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated
to the greatest extent possible.
SECTION 9.7. Assignment. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, that neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned
(whether by operation of Law or otherwise) without the express written
consent of the other parties hereto (which consent may be granted or
withheld in the sole discretion of the party from whom such consent is
requested) except that Purchasers (or any Purchaser) may assign their or
its rights, but not their or its respective obligations (other than their
respective obligations to purchase the Assets), to any Purchaser Designee
or Affiliate of either Purchaser without the consent of Target; provided,
further, that no such assignment shall relieve Purchasers (or any
Purchaser) of any liability or obligation under this Agreement.
SECTION 9.8. Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the Confidentiality Agreements constitute the entire
agreement and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter of
this Agreement, and, except for the Protocol and the Voting and Support
Agreement, there are no other or additional agreements between Purchasers
or any of their Affiliates, on the one hand, Target and its Affiliates, on
the other hand, relating to, arising from or otherwise entered into in
connection with this Agreement and the transactions contemplated hereby.
Except for the provisions of Section 5.11(a)-(e), this Agreement is not
intended to confer upon any Person other than the parties hereto any rights
or remedies. In the event of any conflict or inconsistency between the
terms of this Agreement and the Protocol, the parties agree that the terms
of this Agreement shall control.
SECTION 9.9. Amendment. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, Target and
each Purchaser Party.
SECTION 9.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable
to contracts executed in and to be performed entirely within that state,
without regard to conflicts of law principles. All actions and proceedings
arising out of or relating to this Agreement shall be heard and determined
in any New York state or federal court sitting in the City of New York.
SECTION 9.11. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same
agreement.
SECTION 9.12. Waiver. Target, on the one hand, and Purchasers,
collectively on the other hand, may (a) extend the time for the performance
of any of the obligations or other acts of the other party, (b) waive any
inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered by the other party pursuant
hereto or (c) waive compliance with any of the agreements or conditions of
the other party contained herein. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by the party to
be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of
the same term or condition, or a waiver of any other term or condition, of
this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any of such rights.
SECTION 9.13. Reservation of Rights. If the Closing does not occur and
this Agreement is terminated pursuant to the terms hereof, the Transaction
Documents and any other discussions, negotiations or exchanges relating to
the transactions contemplated by the Transaction Documents shall be with
full reservation of rights and none of the Transaction Documents (other
than the Confidentiality Agreements) or any such discussions, negotiations
or exchanges shall be regarded as waiving any rights or claims of any party
thereto in any ruling, litigation or any future claims that are or could be
made relating to the transactions contemplated by the Transaction
Documents.
SECTION 9.14. Enforcement.
(a) Target acknowledges and agrees that it shall not be entitled
to seek an injunction or injunctions to prevent any Purchaser Party from
breaching this Agreement or to enforce specifically the terms and
provisions of this Agreement in any court located anywhere in the world.
Target agrees that the Purchaser Parties would suffer irreparable damage 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 the Purchasers shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or in any New York state
court, this being in addition to any other remedy to which they are
entitled at Law or in equity.
(b) Each of the parties hereto irrevocably agrees that any legal
action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by the other party
hereto or its successors or assigns shall only be brought and determined in
any federal court located in the State of New York or any New York state
court sitting in the City of New York, and each of the parties hereto
hereby irrevocably submits with regard to any such action or proceeding for
itself and in respect to its property, generally and unconditionally, to
the exclusive jurisdiction of the aforesaid courts. Each of the parties
hereto hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (i) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any
reason other than the failure to serve process in accordance with this
Section 9.13, (ii) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise), and (iii) to the fullest extent permitted by applicable law,
that (A) the suit, action or proceeding in any such court is brought in an
inconvenient forum, (B) the venue of such suit, action or proceeding is
improper and (C) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts. Each of the parties further agrees that
service of any process, summons, notice or document by U.S. registered mail
to such party's respective address set forth herein shall be effective
service of process for any action, suit or proceeding in New York with
respect to any matters to which it has submitted to jurisdiction as set
forth in this section.
SECTION 9.15. Exhibits; Disclosure Letter. All Exhibits referred to
herein and in the Target Disclosure Letter are intended to be and hereby
are specifically made a part of this Agreement.
SECTION 9.16. Joint and Several Obligations. Subject to the following
proviso, all obligations of any Purchaser Party hereunder shall be joint
and several obligations of all of the Purchasers Parties; provided,
however, that (i) no obligation of a Purchaser under Section 2.3, Section
5.11(f) or Article VI hereof shall be a joint and several obligation of any
Parent Entity and (ii) no obligation of Hoosier or Terrapin under Section
5.11(a)-(e) shall be a joint and several obligation of Wallaby, Wallaby
Acquisition Sub or any of Wallaby Acquisition Sub's Purchaser Designees.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties hereto have caused this
Purchase Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
RODAMCO NORTH AMERICA, N.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
WESTFIELD AMERICA LIMITED PARTNERSHIP
By: Westfield America, Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and Chief Executive Officer
WESTFIELD GROWTH, LP
By: Westfield Growth II, LP, its general partner
By: Westfield Centers, LLC, its general partner
By: Westfield America Limited Partnership, its
sole member
By: Westfield America, Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
HOOSIER ACQUISITION, LLC
By: Simon Property Group, L.P., its managing member
By: Simon Property Group, Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
THE ▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
TERRAPIN ACQUISITION, LLC
By: TRCGP, Inc., its managing member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President