Exhibit 99.4
ASSUMPTION AGREEMENT
This Assumption Agreement (this "Agreement") is made and entered into
this 19th day of October, 2004 by and between General Growth Properties,
Inc., a Delaware corporation ("GGP"), and The ▇▇▇▇▇ Company, a Maryland
corporation ("▇▇▇▇▇") in favor of and for the benefit of the Holders and
the Representatives referred to below.
WHEREAS, GGP, ▇▇▇▇▇ and Red Acquisition LLC ("Merger Sub") are parties
to that certain Agreement and Plan of Merger dated as of August 19, 2004
(the "2004 Merger Agreement") providing for the merger of Merger Sub with
and into ▇▇▇▇▇ (the "2004 Merger"), with ▇▇▇▇▇ as the surviving corporation
in such merger.
WHEREAS, in 1996 ▇▇▇▇▇ acquired The ▇▇▇▇▇▇ Corporation ("THC")
pursuant to that certain Agreement and Plan of Merger, dated as of February
22, 1996 (the "1996 Merger Agreement"), among ▇▇▇▇▇, TRC Acquisition
Company I and THC.
WHEREAS, in satisfaction of a condition precedent set forth in the
1996 Merger Agreement, ▇▇▇▇▇ entered into that certain Contingent Stock
Agreement, effective as of January 1, 1996 (as it has been or may be
amended in accordance with its terms, the "CSA"), in favor of and for the
benefit of the Holders and the Representatives (as such terms are defined
in the CSA).
Whereas, pursuant to Section 7.04(a) of the CSA, ▇▇▇▇▇ agreed to
require any successor to all or substantially all of the business and/or
assets of ▇▇▇▇▇ to expressly assume and agree to perform the CSA in the
same manner and to the same extent that ▇▇▇▇▇ would be required to perform
it if no succession took place.
NOW, THEREFORE, GGP hereby covenants and agrees as follows:
1. As of the Effective Time (as defined in the 2004 Merger
Agreement), GGP, as successor to ▇▇▇▇▇, hereby expressly assumes,
agrees to be bound by and agrees to perform the CSA in the same
manner and to the same extent that ▇▇▇▇▇ would be bound by and
required to perform the CSA had the 2004 Merger not taken place.
It is specifically understood and agreed that the foregoing
assumption by and covenant of GGP applies to all rights,
covenants, liabilities and obligations whatsoever arising under
the CSA, whether arising before or after the Effective Time and
whether known or unknown, fixed or contingent, in each case to
the same extent as would be applicable to ▇▇▇▇▇ had the 2004
Merger not taken place and including, without limitation, any
obligation to deliver Contingent Shares (as defined in the CSA)
in respect of Calculation Dates (as defined in the CSA) occurring
prior to the 2004 Merger.
2. Pursuant to paragraph 1 above and in furtherance of the
satisfaction of the requirements of Section 7.04(b) of the CSA,
GGP agrees that following the Effective Time (a) there will not
be a prejudicial effect on the Holders with respect to their
non-taxable receipt of securities pursuant to the CSA as a result
of the 2004 Merger and (b) securities delivered pursuant to the
CSA will be delivered on a timely basis in compliance with the
requirements of Section 2.01 of the CSA and will be freely
tradable and readily marketable securities comparable to the
Contingent Shares. GGP further agrees to indemnify and hold
harmless the Holders against losses to the extent arising out of
any breach by GGP of the covenant in clause (a) or (b) of the
preceding sentence.
3. This Agreement shall be binding upon GGP and its successors and
assigns. This Agreement shall inure to the benefit of, and may be
enforced by, the Representatives and/or each of the Holders and
their respective personal or legal representatives, executors,
administrators, heirs, devisees, legatees, successors and assigns
to the same extent and in the same manner as the CSA may be
enforced by them.
4. This Agreement and the rights and obligations of GGP hereunder
shall be governed by and construed in accordance with the laws of
the State of Delaware, without giving effect to the conflict of
laws principles thereof.
5. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together
shall constitute one instrument.
6. If the 2004 Merger Agreement is terminated prior to the Effective
Time this Agreement shall be null and void.
IN WITNESS WHEREOF, GGP and ▇▇▇▇▇ have executed this Agreement on the
date first above written.
GENERAL GROWTH PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
THE ▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President