Exhibit 10.2
AGREEMENT FOR
CONTRIBUTION
OF
SHARES
between
JAHOLD B.V.,
a company incorporated under the
laws of The Netherlands, and
GOLOBER B.V.,
a company incorporated under the
laws of The Netherlands,
and
IVANHOE NETHERLANDS HOLDINGS III
B.V.,
a company incorporated under the
laws of The Netherlands
Dated: As of October 4,
2006
AGREEMENT FOR CONTRIBUTION OF
SHARES
THIS AGREEMENT FOR CONTRIBUTION OF
SHARES (this “ Agreement ”) is made and dated as
of the 4 th day of October, 2006, by and
among:
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(1)
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JAHOLD
B.V. , a company
incorporated under the laws of The Netherlands (“
Jahold ”), and GOLOBER B.V. , a company
incorporated under the laws of The Netherlands (“
Golober ”), each having an office at Amsteldijk 166,
6th Floor, 1079 LH Amsterdam, The Netherlands; and
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(2)
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IVANHOE
NETHERLANDS HOLDINGS III B.V. , a company incorporated under the laws of The
Netherlands (“ Ivanhoe Contributee ”), having
its registered office at Herengracht 483, 1017 BT, Amsterdam, The
Netherlands.
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RECITALS
A. Jahold owns 15,625 Shares (the
“ MX 2003 Shares ”) of Madrid Xanadu 2003, S.L.,
a company duly incorporated under Spanish law, having its
registered address at Centro Comercial MADRID XANADU. OFICINA DE
GESTION, ARROYOMOLINOS, MADRID, registered with the Commercial
Registry of Madrid in Tome 17,034, Book 0, Folio 67,
Section 8, Page 291,455, with Tax Identification Number (CIF)
B83141085 (“ MX 2003 ”). The MX 2003 Shares
represent all of the stock of MX 2003, and were acquired by Jahold
as follows: (a) by subscription of 301 Shares in the deed of
transfer of Shares dated January 31, 2002, executed before the
Notary Public of Madrid, Mr. Carlos de Prada Guaita;
(b) by subscription of 15,323 Shares in the increase in
capital dated June 11, 2002 formalized before the Notary
Public of Madrid Mr. José Luis Martínez-Gil; and
(c) by subscription of 1 Share in the increase in capital
dated December 1, 2004 formalized before the Notary Public of
Madrid Mr. Ignacio Martínez-Gil; and Jahold also owns the
Jahold Inter-Company Loans, as defined below (the MX 2003 Shares
and the Jahold Inter-Company Loans being referred to collectively
as the “ MX 2003 Interests ”).
B. Golober owns 50,302 Shares (the
“ PDN Shares ”) of Parque de Nieve Madrid, S.L.,
a company duly incorporated under Spanish law, having its
registered address at Centro Comercial MADRID XANADU. OFICINA DE
GESTION, ARROYOMOLINOS, MADRID (pending of registration),
registered with the Commercial Registry of Madrid in Tome 17,444,
Book 0, Folio 114, Section 8, Page 299,393 with Tax
Identification Number (CIF) B-83232314 (“ PDN
”). The PDN Shares represent all the stock of PDN and were
acquired by Golober as follows: (a) by subscription of 301
Shares in the deed of incorporation dated February 26, 2002,
executed before the Notary Public of Madrid, Mr. Carlos de
Prada Guaita; (b) by subscription of 50,000 Shares in the
increase in capital dated December 2, 2002 formalized before
the Notary Public of Madrid, Mr. Carlos de Prada Guaita; and
(c) by subscription of 1 Share (the “ PDN
Non-Registered Share ”) in the increase in capital dated
December 28, 2005 formalized before the Notary Public of
Madrid Mr. Ignacio Martínez-Gil (pending registration
with the Commercial Registry); and Golober also owns the Golober
Inter-Company Loans, as defined below (the PDN Registered Shares,
the PDN Non-Registered Share Rights and the Golober Inter-Company
Loans being referred to collectively as the “ PDN
Interests ”).
C. Jahold desires to contribute the
Jahold Spanish Interests to the Ivanhoe Contributee in
consideration of the issuance to Jahold of the Jahold Contributee
Shares and Golober desires to contribute the Golober Spanish
Interests to the Ivanhoe Contributee in consideration of the
issuance to Golober of the Golober Contributee Shares, and the
Ivanhoe Contributee desires to accept such contributions, all
subject to and on the terms and conditions more particularly set
forth herein.
NOW, THEREFORE, in consideration of
the mutual covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions . For purposes
of this Agreement, the term(s):
1.1. “ Additional Tax
Indemnity Obligation ” has the meaning set forth in
Section 9.1(b) .
1.2. “ Affiliate
” means, at any time, and with respect to any Person, any
other Person that at such time directly or indirectly Controls, or
is Controlled by, or is under common Control with, such first
Person, provided that no Subject Company shall be considered an
Affiliate of either of the Contributors or of the Ivanhoe
Contributee for purposes of this definition. As used in this
definition, “ Control ” means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and decision-making of a Person and
“ Controlled ” shall have the corresponding
meaning.
1.3. “ Affiliate Equity
Interests ” has the meaning set forth in
Section 2.6(c)(ii) .
1.4. “ Agreement
” has the meaning set forth in the introductory paragraph
hereto.
1.5. “ Applicable Laws
” means all statutes, laws, by-laws, regulations, ordinances,
orders and requirements of any Governmental Authority having
jurisdiction.
1.6. “ Assignment and
Assumption of Contracts ” means an agreement for the
assignment and assumption of Contracts, in the form to be agreed
upon by the Contributors and the Ivanhoe Contributee, each acting
reasonably.
1.7. “ Assignment of
Intellectual Property ” has the meaning set forth in
Section 2.3.
1.8. “ Bankruptcy Code
” means 11 U.S.C. Section 101 et seq., or any statute of
similar nature or purpose under United States, Canadian, Spanish,
Dutch, British, European Union or other laws.
1.9. “ Basket Amount
” means US$250,000.
1.10. “ Business Day
” means any day other than a Saturday, Sunday or a statutory
holiday in any of Toronto, Ontario, Madrid, Spain, Amsterdam, The
Netherlands, or New York, New York.
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1.11. “ Chattels
” means all equipment, inventory, vehicles, furniture,
supplies and other chattels or tangible personal property located
at or in the Property or used in the maintenance, repair and
operation of the Property (including, without limitation, all
computer hardware and software and all operating manuals in respect
of any equipment) other than such property which is owned by any
Tenant.
1.12. “ Claims ”
means all past, present and future claims, suits, proceedings,
liabilities, obligations, losses, damages, penalties, judgments,
costs, expenses, fines, disbursements, reasonable legal fees and
disbursements, interest, demands and actions of any nature or any
kind whatsoever.
1.13. “ Closing ”
means the completion of the Transactions.
1.14. “ Closing Date
” means the date of Closing.
1.15. “ Closing Deliveries
Escrow Agent ” means Houthoff Buruma N.V., Amsterdam, The
Netherlands.
1.16. “ Closing
Documents ” means the agreements, instruments and other
deliveries to be delivered by the Ivanhoe Contributee or its
solicitors (or by either of them) pursuant to
Section 4.2 and the agreements, instruments and other
deliveries to be delivered by the Contributors or their solicitors
(or either of them) pursuant to Section 4 .
1.17. “ Contracts
” means: (i) all contracts and agreements with Third
Parties (other than Leases and policies of insurance) relating to
the Property to which any one or more of the Contributors or the
Subject Companies is a party or by which any of the Contributors,
the Subject Companies or the Property is bound in connection with
the ownership, management, maintenance, operation, cleaning,
security, protection or servicing of the Property, and
(ii) all of the Mills Services Contracts and all Designated
Contracts, if any; without limiting the foregoing, it is confirmed
that none of the Management Arrangements constitutes a
Contract.
1.18. “ Contribution
Value ” has the meaning set forth in
Section 2.2(a) .
1.19. “ Contributors
” means, collectively, Jahold and Golober.
1.20. “ Controlled
Breach ” means a breach of any Subject Mills
Representation that is caused by or attributable to any action or
omission of any Mills Entity at any time from (and including) the
date of this Agreement, which action or omission violates any
provision of this Agreement or causes any representation or
warranty made by the Contributors, or either of them, to be untrue
as of the time of Closing.
1.21. “ Cut-Off Date
” means the Business Day prior to the last day of the Due
Diligence Period.
1.22. “ Data Room
CD-ROM ” means a CD-ROM or DVD-ROM, or a set thereof,
prepared by the Contributors that contains copies of the Leases and
Contracts for the Property, and a copy of the PDN Ground Lease, a
copy of which CD ROM or DVD ROM, or a set thereof, has been
delivered to the Ivanhoe Contributee as of the date hereof (and
specifically
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identified as such), as the same
shall be updated from time to time up to and including the Cut-Off
Date.
1.23. “ Designated
Contracts ” has the meaning set forth in
Section 2.11(a) .
1.24. “ Due Diligence
” has the meaning set forth in Section
2.12(a).
1.25. “ Due Diligence
Period ” has the meaning set forth in Section
2.12(a).
1.26. “ Employee
Information ” means all files relating to any of the
Property Employees in the possession or control of the Contributors
or their Affiliates.
1.27. “ Employee Plans
” means any insurance plans providing for disability,
hospitalization, healthcare, medical or dental treatments or
expenses, life insurance, accidental death and dismemberment
insurance, death or survivor’s benefits and supplementary
employment insurance, in each case regardless of whether or not
such benefits are insured or self-insured, which are maintained, or
otherwise contributed to or required to be contributed to in
respect of any of the Property Employees.
1.28. “ Employment
Agreements ” means all employment agreements between
Mills Global Spain and the Property Employees in existence as of
the date of this Agreement.
1.29. “ Employment
Consents ” has the meaning set forth in
Section 2.11(b)(i) .
1.30. “ Encumbrances
” means, in the case of any given assets or property (whether
tangible or not), all mortgages, pledges, charges, liens,
debentures, hypothecs, trust deeds, assignments by way of security,
security interests, conditional sales contracts or other title
retention agreements or similar interests or instruments charging,
or creating a security interest in, such assets or property or any
part thereof or interest therein, and any agreements, leases,
options, attachments (“beslagen”), garnishments,
certificates of pending litigation ( lis pendens ),
easements, rights of way, restrictions, executions or other
encumbrances (including notices or other registrations in respect
of any of the foregoing) affecting title to such assets or property
or any part thereof.
1.31. “ Escrow
Agreement ” means an escrow agreement pursuant to which
certain Closing Documents are held in escrow by the Closing
Deliveries Escrow Agent pending completion of the Closing, in the
form to be agreed upon by the Contributors and the Ivanhoe
Contributee, each acting reasonably.
1.32. “ Excluded Claims
” has the meaning set forth in Section 2.10(d)
.
1.33. “ Excluded Management
Assets ” means the software applications listed on
Schedule B .
1.34. “ Existing
Auditors ” has the meaning set forth in
Section 2.6(a) .
1.35. “ Goldman Sachs
” means Goldman Sachs Mortgage Company.
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1.36. “ Golober ”
has the meaning set forth in the first paragraph of this
Agreement.
1.37. “ Golober Contributee
Shares ” has the meaning set forth in
Section 2.1(b) .
1.38. “ Golober
Inter-Company Loans ” means all of the Inter-Company
Loans owed to Golober that are described on Schedule D , as
well as all benefits and security acknowledging or evidencing such
Inter-Company Loans, and all other rights and benefits arising
therefrom or relating thereto.
1.39. “ Golober Spanish
Interests ” means the PDN Interests and all rights,
benefits and interests relating thereto.
1.40. “ Governmental
Authority ” means any government, autonomous community
(“comunidad autónoma”), legislature, municipality,
regulatory authority, agency, commission, department, board or
court or other law, regulation or rule-making entity.
1.41. “ Historical
Liabilities ” has the meaning set forth in
Section 9.1 .
1.42. “ Hypo Debt
” means, as of any particular time, the outstanding principal
amount of the indebtedness evidenced and/or secured by the Hypo
Debt Documents, together with all accrued unpaid interest thereon
and any other amounts payable thereunder or in respect thereof,
including all fees or other amounts payable to the lender, its
lawyers or other representatives in connection with the assumption
of such debt and the Hypo Debt Documents.
1.43. “ Hypo Debt
Credit ” has the meaning set forth in
Section 2.2(a) .
1.44. “ Hypo Debt
Documents ” means that certain Loan Agreement, executed
on December 30, 2002, before the Notary Public of Madrid,
Mr. Pablo de la Esperanza Rodriguez, with number 4,619 of his
protocol, between MX 2003, as borrower, and Bayerische Hypo-Und
Vereinsbank Aktiengesellschaft, as lender, arranger, and agent,
together with all of the other instruments and agreements which
evidence or secure the Hypo Debt including all Encumbrances
securing the Hypo Debt.
1.45. “ Indemnitee
” has the meaning set forth in Section 10.1
.
1.46. “ Indemnitor
” has the meaning set forth in Section 10.1
.
1.47. “ Intellectual
Property ” means the trade names, trade marks, logos,
commercial symbols, business names, websites, and/or domain names
described on Schedule C .
1.48. “ Inter-Company
Loans ” means all indebtedness of MX 2003 or PDN to any
Mills Entities, including, without limitation, the Jahold
Inter-Company Loans and the Golober Inter-Company Loans, but
excluding any obligations of PDN under the PDN Ground
Lease.
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1.49. “ Interim Financial
Statements ” means, in the case of each of the Subject
Companies, the unaudited financial statements of such Subject
Company for the period commencing on January 1, 2006 and
ending on August 31, 2006.
1.50. “ Ivanhoe ”
means Ivanhoe Cambridge Inc.
1.51. “ Ivanhoe
Contributee ” has the meaning set forth in the first
paragraph of this Agreement.
1.52. “ Ivanhoe
Contributee’s Solicitors ” means Houthoff Buruma
N.V., Amsterdam.
1.53. “ Ivanhoe Employment
Entity ” means Ivanhoe España S.A.
1.54. “ Ivanhoe
Indemnity ” means the indemnity by Ivanhoe in favour of
the Contributors in respect of any Claims made by the Contributors
in respect of any breach of the representations and warranties made
by the Ivanhoe Contributee in Section 2.9 , and in
respect of the Ivanhoe Contributee’s obligations pursuant to
Sections 2.4 and 2.10(d) , such indemnity to be in form and
substance satisfactory to Ivanhoe and the Contributors, all acting
reasonably.
1.55. “ Jahold ”
has the meaning set forth in the first paragraph of this
Agreement.
1.56. “ Jahold
Inter-Company Loans ” means all of the Inter-Company
Loans owed to Jahold that are described on Schedule D , as
well as all benefits and security acknowledging or evidencing such
Inter-Company Loans, and all other rights and benefits arising
therefrom or relating thereto.
1.57. “ Jahold Contributee
Shares ” has the meaning set forth in
Section 2.1(a) .
1.58. “ Jahold Spanish
Interests ” means the MX 2003 Interests and all rights,
benefits and interests relating thereto.
1.59. “ Known by the
Ivanhoe Contributee ” means written information or
documentation that has been delivered to the Ivanhoe Contributee or
any of its Affiliates by any Mills Entity or any Third Party and
also any written information or documentation that has otherwise
been made available to the Ivanhoe Contributee or any of its
Affiliates by any Mills Entity.
1.60. “ Leases ”
means all agreements to lease, leases, renewals of leases,
subtenancy agreements, parking agreements, storage agreements and
other agreements (including licences) which entitle any Person to
possess or occupy any space within the Property, together with all
security, guarantees and indemnities relating thereto, in each case
as amended, renewed or otherwise varied, but excludes the PDN
Ground Lease.
1.61. “ Liability Cap
” means US$7,500,000.
1.62. “ Loan Fees
” has the meaning set forth in Section
2.4(b).
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1.63. “ Madrid Xanadu Name
Assignment Agreement ” means the agreement entitled
“Bill of Sale and Assignment of Leases, Contracts,
Warranties, Guaranties and Other Intangible Property” dated
as of August 18, 2004 between PGC, Tolka, Madrid Xanadu 2000,
S.L. and Jaafar Jawad Al Jalabi, as assignor, and MX 2003, as
assignee, pursuant to which, inter alia , the assignor made
certain covenants in favour of MX 2003 in respect of the use of the
name “Xanadu”, “Madrid Xanadu” and
variations thereof.
1.64. “ Management
Arrangements ” means all arrangements or contracts with
any Mills Entities involving the development, management, leasing
and/or operation of the Property, all of which are described on
Schedule E .
1.65. “ Management
Termination and Release ” has the meaning set forth in
Section 2.10(a) .
1.66. “ Mandatory
Amount ” has the meaning set forth in Schedule A
.
1.67. “ Maximum Amount
” has the meaning set forth in Schedule A .
1.68. “ Mills Affiliate
Loans ” means all loans made by either of the Subject
Companies to any Mills Entities that are outstanding as of the date
hereof.
1.69. “ Mills’
Broker ” has the meaning set forth in
Section 7 .
1.70. “ Mills Corp.
” means The Mills Corporation, a Delaware
corporation.
1.71. “ Mills Entity
” means either of the Contributors or any other Affiliate of
TMLP.
1.72. “ Mills Global
Spain ” means Mills Global Services of Spain,
S.L.
1.73. “ Mills Madrid
Encumbrances ” means all Encumbrances in favour of Mills
Kan-Am B.V. (now known as Mills Madrid, B.V.), or any successor or
assign.
1.74. “ Mills Service
Contracts ” has the meaning set forth in
Section 2.11(a) .
1.75. “ MX 2003 ”
has the meaning set forth in the Recitals.
1.76. “ MX 2003 Directors
and Officers ” means the Persons listed on Schedule
F in their capacities as directors or officers of MX
2003.
1.77. “ MX 2003 Financial
Statements ” has the meaning set forth in
Section 2.7(a)(vi) .
1.78. “ MX 2003
Interests ” has the meaning set forth in the
Recitals.
1.79. “ MX 2003
Property ” means the real property owned by MX 2003
described in the Land Registry of Arroyomolinos (Madrid), as set
forth on Schedule H attached hereto.
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1.80. “ Non-Assignable
Rights ” has the meaning ascribed thereto in
Section 2.11(a) .
1.81. “ Notary ”
means Arnout Stroeve or any other civil-law notary of Houthoff
Buruma N.V. in Amsterdam.
1.82. “ Notice ”
has the meaning ascribed thereto in Section 11.5
.
1.83. “ PDN ” has
the meaning set forth in the Recitals.
1.84. “ PDN Directors and
Officers ” means the Persons listed on Schedule G
in their capacities as directors and officers of PDN.
1.85. “ PDN Financial
Statements ” has the meaning set forth in
Section 2.7(b)(vi) .
1.86. “ PDN Ground
Lease ” means the Lease of Land and Buildings dated
27 December, 2002, between MX 2003, as lessor, and PDN, as
lessee, as amended by that certain First Amendment to Lease of Land
and Buildings dated 30 December, 2005.
1.87. “ PDN Interests
” has the meaning set forth in the Recitals.
1.88. “ PDN Non-Registered
Share ” has the meaning set forth in the
Recitals.
1.89. “ PDN Non-Registered
Share Rights ” means all of Golober’s proprietary
rights, proprietary title and interests in and to the PDN
Non-Registered Share, it being acknowledged that the transfer of
the PDN Non-Registered Share itself will be subject to the
registration of the issuance of the PDN Non-Registered Share in the
Registry Sheet for PDN, and all of Golober’s rights to
reimbursement of the monies contributed as nominal value and
premium to pay up the PDN Non-Registered Share in the event it is
amortized at PDN’s sole discretion.
1.90. “ PDN Property
” means the leasehold interest of PDN in a portion of the MX
2003 Property pursuant to the PDN Ground Lease.
1.91. “ PDN Registered
Shares ” means all of the PDN Shares other than the PDN
Non-Registered Share.
1.92. “ Permitted
Encumbrances ” means, with respect to the Spanish
Interests or the Property: (i) the Encumbrances that are
registered against the title to the Property as of 10:00 a.m. on
the Cut-Off Date or which are Known by the Ivanhoe Contributee as
of the Cut-Off Date other than the Mills Madrid Encumbrances;
(ii) encumbrances for real property taxes (which term includes
charges, rates and assessments, and other governmental charges or
levies) or charges for electricity, power, gas, water and other
services and utilities in connection with the Property that have
accrued but are not yet due and owing or, if due and owing, are
otherwise provided for between the parties, or their Affiliates;
(iii) to the extent that they existed as at 10:00 a.m. on the
Cut-Off Date and are Known by the Ivanhoe Contributee, facility
sharing, cost sharing, tunnel, pedway, servicing, parking,
reciprocal and other similar agreements in respect of
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the Property with neighbouring
landowners and/or Governmental Authorities; (iv) other
Encumbrances affecting the Property that are in existence as of
10:00 a.m. on the Cut-Off Date, provided they do not adversely
affect the development, use, operation or value of the Property and
do not secure the payment of money or any other monetary
obligations; (v) registrations relating to any of the leased
personal property pursuant to any of the Contracts; (vi) the
Leases and the Hypo Debt Documents; and (vii) the Encumbrances
set out on Schedule I .
1.93. “ Person ”
means an individual, partnership, corporation, trust,
unincorporated organization, government, or any department or
agency thereof, and the successors and assigns thereof or the
heirs, executors, administrators or other legal representatives of
an individual.
1.94. “ PGC ” has
the meaning set forth in Schedule A .
1.95. “ PGC Escrow
Agreement ” means the agreement entitled
“Attachment Termination and Escrow Agreement” made the
3rd day of October, 2006 among certain Mills Entities, PGC, Tolka,
Silsparo B.V. and Goldman Sachs International.
1.96. “ PGC Litigation
” has the meaning set forth in Schedule A .
1.97. “ PGC Risk
” has the meaning set forth in Schedule A .
1.98. “ Power Center
Project ” means that certain project to build a power
center on a portion of the Property in which one or both of the
Subject Companies is currently engaged.
1.99. “ Pre-Closing
Consultant ” shall mean any lawyer, accountant, or other
Person who has provided services to the Subject Companies for any
period prior to and including the Closing.
1.100. “ Property
” means the MX 2003 Property and the PDN Property,
collectively.
1.101. “ Property
Employee ” means those individuals listed in Schedule
J hereto.
1.102. “ Qualified
Designees ” means any Person, directly or indirectly,
wholly-owned by Ivanhoe.
1.103. “ Registry Sheet
” means, in the case of each of the Subject Companies, the
Registry Sheet (“Hoja Registral”) for such Subject
Company at the Commercial Registry of the corporate domicile of
such Subject Company.
1.104. “ Requisite
Financial Statements ” has the meaning set forth in
Section 2.6(a) .
1.105. “ Scheduled Closing
Date ” has the meaning set forth in Section 4
.
1.106. “ Shares ”
means, in the case of either of the Subject Companies,
participaciones sociales .
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1.107. “ Spanish
Interests ” means, collectively, the MX 2003 Interests,
the PDN Interests and all rights, benefits and interests relating
to any of the foregoing.
1.108. “ St. Enoch/Vaughan
Mills Purchase Agreement ” means the Agreement for
Transfer of Ownership Interests between Affiliates of TMLP and
Affiliates of Ivanhoe, dated as of the date hereof, and related to
the sale by such Affiliates of TMLP of their interests, direct or
indirect, in the properties known as the “St. Enoch
Property” and the “Vaughan Mills Property”, as
such Agreement may be amended or supplemented by the parties
thereto from time to time.
1.109. “ Subject
Companies ” means MX 2003 and PDN.
1.110. “ Subject Company
Assets ” means, collectively, all the assets of the
Subject Companies, excluding the Mills Affiliate Loans and the
Affiliate Equity Interests.
1.111. “ Subject Mills
Representations ” has the meaning set forth in
Section 2.7(d) .
1.112. “ Survival Date
” has the meaning set forth in Section 2.7(d)
.
1.113. “ Tax ” or
“ Taxes ” means all taxes, charges, fees,
levies, duties, contributions, withholdings or liabilities, imposts
and other assessments, whether payable to any governmental, state,
federal, provincial, regional (“autonomous community”),
local, or other governmental authority, including without
limitation, all income, sales, use, goods and services, harmonized
sales, value added, capital, capital gains, alternative, net worth,
transfer, profit, withholding, payroll, employer health, excise,
franchise, real property and personal property taxes, local
improvement rates or charges, and any other taxes, customs duties,
fees, assessments, royalties, duties, deductions or similar charges
in the nature of a tax, including pension plan contributions,
employment insurance payments and workers compensation premiums,
together with any instalments, and any interest surcharges, fines
and penalties imposed by any Governmental Authority, whether
disputed or not.
1.114. “ Tenants
” means any tenants or licensees occupying space at the
Property, excluding PDN.
1.115. “ Third Party
” means any Person who is not one of the Contributors, the
Ivanhoe Contributee, the Subject Companies or an Affiliate of any
of them.
1.116. “ Third-Party
Claim ” has the meaning set forth in
Section 10.1 .
1.117. “ Threshold Damage
Amount ” has the meaning set forth in
Section 8(a) .
1.118. “ Threshold Taking
Percentage ” has the meaning set forth in
Section 8(b) .
1.119. “ TMLP ”
means The Mills Limited Partnership, a Delaware limited
partnership.
1.120. “ TMLP Indemnity
” means the indemnity by TMLP in favour of the Ivanhoe
Contributee in respect of any Claims made by the Ivanhoe
Contributee in respect of any
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breach of the representations and
warranties made by any of the Contributors in
Section 2.7 , subject to the provisions of
Section 2.7(d) , and the agreement of TMLP in respect
of the obligations of the Contributors and TMLP pursuant to
Sections 2.6(c) and 2.10(e) , and the agreement of
TMLP by TMLP in favour of the Ivanhoe Contributee and the Subject
Companies in respect of any obligations of the Contributors
pursuant to Section 9 hereof, such document to be in
form and substance satisfactory to TMLP and the Ivanhoe
Contributee, each acting reasonably.
1.121. “ Tolka ”
has the meaning set forth in Schedule A .
1.122. “ Total Acquisition
Cost ” has the meaning set forth in the definition of
“Profit”.
1.123. “ Transactions
” means the transactions provided for in
Section 2.1 of this Agreement.
1.124. “ Transfer
Instruments ” means any instruments effecting the
contribution of the Spanish Interests and the issuance of the
Jahold Contributee Shares and the Golober Contributee Shares as
contemplated pursuant to this Agreement.
1.125. “ Transferred
Employees ” has the meaning set forth in
Section 2.11(b)(i) .
1.126. “ Uncontrolled
Breach ” means any breach of a Subject Mills
Representation that is not a Controlled Breach.
1.127. “ Unlimited
Representations ” means the representations set forth in
the following sections: Section 2.7(a)(i) through
Section 2.7(a)(vii), Section 2.7(a)(viii)(x) and (y),
Section 2.7(a)(ix), Section 2.7(a)(x),
Section 2.7(b)(i) through Section 2.7(b)(vii),
Section 2.7(b)(viii)(x) and (y), Section 2.7(b)(ix) and
Section 2.7(b)(x) .
1.128. “ Unpaid Development
Costs ” means the fixed amount of Seventeen Million,
Seven Hundred and Forty-four Thousand, One Hundred and Fourteen
Euro (€17,744,114), which the parties have agreed is the
amount of the costs with respect to the Power Centre Project which
have not been paid as of the Cut-Off Date, including those that
have not been incurred as of such time.
2. Contribution of the Spanish
Interests
2.1. Conveyance . Subject to
and upon the terms and conditions herein provided:
(a) the Ivanhoe Contributee hereby
agrees on Closing to issue to Jahold 12 class B shares, each with a
nominal value of €100 (the “ Jahold Contributee
Shares ”), which Jahold Contributee Shares shall be paid
up by Jahold through a contribution in kind specified in the
following sentence. Jahold hereby agrees on Closing to contribute
to the Ivanhoe Contributee all of the Jahold Spanish Interests free
of all Encumbrances other than the Hypo Debt Documents (it being
agreed that the value of the Jahold Spanish Interests is as set out
on Schedule K hereto) and the Ivanhoe Contributee hereby
agrees that it shall accept the
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contribution and assume the Jahold
Spanish Interests on such basis. The surplus value of the
contribution in kind specified in the previous sentence in excess
of the nominal value of the Jahold Contributee Shares shall be
share premium, which shall be exclusively allocated to the class B
share premium reserve of the Ivanhoe Contributee; and
(b) the Ivanhoe Contributee hereby
agrees on Closing to issue to Golober 12 class C shares, each with
a nominal value of €100 (the “ Golober Contributee
Shares ”), which Golober Contributee Shares shall be paid
up by Golober through a contribution in kind specified in the
following sentence. Golober hereby agrees on Closing to contribute
to the Ivanhoe Contributee all of the Golober Spanish Interests
free of all Encumbrances (it being agreed that the value of the
Golober Spanish Interests is as set out on Schedule K
hereto) and the Ivanhoe Contributee hereby agrees that it shall
accept the contribution and assume the Golober Spanish Interests on
such basis. The surplus value of the contribution in kind specified
in the previous sentence in excess of the nominal value of the
Golober Contributee Shares shall be share premium, which shall be
exclusively allocated to the class C share premium reserve of the
Ivanhoe Contributee.
2.2. Contribution Value
(a) The aggregate contribution value
(the “ Contribution Value ”) for the Spanish
Interests shall be the fixed amount of Five Hundred and Eleven
Million Dollars (US$511,000,000), less the aggregate of
(i) the Unpaid Development Costs; and (ii) the amount
(the “ Hypo Debt Credit ”) of the Hypo Debt that
is outstanding as of the Closing Date, including all accrued
interest, converted into US dollars in accordance with the
provisions of Section 2.2(c) . The Contribution Value
is allocated among the Spanish Interests as set forth on
Schedule K . The Unpaid Development Costs and the amount of
the Hypo Debt Credit shall be converted from Euro into US dollars
in accordance with the provisions of Section 2.2(c)
.
(b) At Closing, subject to the
Escrow Agreement, the Contribution Value shall be satisfied in full
by the issuance of the Jahold Contributee Shares and the Golober
Contributee Shares.
(c) Whenever this Agreement requires
a calculation of the exchange rate between the Euro and the US
dollar, such exchange rate shall be 1.26885 US dollars for each
Euro.
2.3. Assignment of Intellectual
Property .
On the Closing Date, the
Contributors, at their own expense, shall execute, or caused to be
executed, an assignment of Intellectual Property, in a form
acceptable to the parties (the “ Assignment of
Intellectual Property ”) by which they or any other Mills
Entity shall irrevocably transfer, sell, assign, or cause to be
assigned, transferred and sold, to MX 2003 and/or any Qualified
Designees designated by the Ivanhoe Contributee, all rights and
entitlements to or in respect of the Intellectual Property. Such
transactions constitute part of the Transactions and the
consideration for them is included in the Contribution Value and
the value of such consideration is not contingent on the use of the
Intellectual Property; neither the Ivanhoe Contributee, MX 2003 nor
any Qualified Designee shall be required to pay any
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additional consideration either to
the Contributors or any other Person who currently owns such name
or other Intellectual Property. The Contributors shall also execute
and deliver, and cause any other Mills Entity to execute and
deliver, after Closing any additional documents required under
Spanish law to give effect to this Section 2.3 and the
assignments referred to herein; this obligation shall survive, and
shall not merge on, Closing.
2.4. Transfer Costs
.
(a) The Ivanhoe Contributee shall
pay:
(i) all transfer taxes, sales tax,
stamp duty, land taxes and any other similar taxes that will be due
in connection with the transfer of the Spanish Interests whether
arising from a reassessment or otherwise and all city, provincial,
regional and national charges to record and file documents, and
whether payable at Closing or following Closing other than any
costs and registration fees payable in connection with the
discharge of Encumbrances, if any, which are to be discharged by
any of the Contributors pursuant to the terms or in furtherance of
this Agreement (collectively, “ Transfer Taxes
”); and
(ii) all fees payable to, and all
costs and expenses relating to the Notary and any other notary used
by them in connection with this Agreement, the Transfer
Instruments, and the Closing (the “ Notary Costs
”, and collectively with the Transfer Taxes, the “
Transfer Costs ”).
(b) The Contributors shall pay any
fees or other amounts payable to the lenders or other finance
parties under the Inter-Company Loans or the Hypo Debt as a result
of or in connection with the transfer of the Spanish Interests
hereunder (the “ Loan Fees ”), and shall fully
indemnify and save harmless the Ivanhoe Contributee and the Subject
Companies from all Loan Fees.
(c) The Ivanhoe Contributee hereby
indemnifies and saves the Contributors and their shareholders,
directors, officers, employees, advisors and agents harmless from
all Claims incurred, suffered or sustained as a result
of:
(i) the failure by the Ivanhoe
Contributee to pay any Transfer Costs; and
(ii) the failure by the Ivanhoe
Contributee to file any returns, certificates, filings, election
notices or other documents required to be filed by the Ivanhoe
Contributee or the Subject Companies after Closing with any
central, federal, regional, provincial or other taxing authorities
in connection with the contribution to the Ivanhoe Contributee of
the Spanish Interests, unless such failure is attributable to the
Registry Sheet not being open, or any other condition or
circumstance existing at the Closing that prevents or delays the
applicable filing.
(d) The provisions of this
Section 2.4 shall survive, and shall not merge on, the
Closing.
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2.5. Escrow Provisions
.
All Closing Documents, other than
the notarial deed of issuance of the Jahold Contributee Shares and
the Golober Contributee Shares, any notarial documents required in
connection with the assumption of the Hypo Debt, and any notarial
discharge of the Mills Madrid Encumbrances, shall be delivered into
escrow at the place of Closing in accordance with the provisions of
this Agreement and the Escrow Agreement.
2.6. Conduct of Business Until
Closing and Filing of Financial Statements .
(a) The Contributors shall use their
best efforts to deliver to the Ivanhoe Contributee audited
financial statements for the Subject Companies in respect of 2005
and any prior years for which such statements are not currently
available (the “ Requisite Financial Statements
”) as soon as possible and in any event prior to
December 31, 2006. The Contributors shall also cause the
Subject Companies to provide updated unaudited quarterly (and, if
available, unaudited monthly) financial statements as soon as
possible after the end of the relevant period after June 30,
2006 and prior to the Closing Date, and shall also provide such
other financial statements, if any, in respect of the Subject
Companies that are provided to the holder of the Hypo Debt or any
other Third Party. The Contributors shall keep the Subject
Companies and the Ivanhoe Contributee fully informed of the status
of their efforts in respect of the matters described above in this
Section 2.6(a) . If the Requisite Financial Statements
have not been delivered by December 31, 2006, the Ivanhoe
Contributee shall have the right, upon giving a one-time prior
written notice to the Contributors, to take all steps necessary to
obtain the Requisite Financial Statements including, without
limitation, dealing directly with the existing auditors of the
Subject Companies (the “ Existing Auditors ”)
and/or taking all necessary steps to replace the Existing Auditors
with other auditors named by the Ivanhoe Contributee. The
Contributors shall provide the Subject Companies, the Ivanhoe
Contributee, the Existing Auditors and any new auditors with all
cooperation, and information in the possession or control of any
Mills Entity, required to finalize the Requisite Financial
Statements, including (if applicable) using all commercially
reasonable efforts to provide any new auditors with access to the
Existing Auditors and their working papers. If any directors or
officers of MX 2003 or PDN appointed by the Ivanhoe Contributee are
required to sign any accounts or financial statements for MX 2003
or PDN, as the case may be, in respect of any period prior to the
Closing and/or the Ivanhoe Contributee, or any Affiliate, is
required to approve such accounts or financial statements, such
actions shall not in any way constitute an acceptance by, or on
behalf of, the Ivanhoe Contributee, or any of its Affiliates, of
such accounts or financial statements, or any matters referred to
therein, nor shall such actions in any way release the Contributors
or TMLP from any of their obligations and liabilities pursuant to
this Agreement, the Closing Documents or any other agreements, in
respect of such period prior to Closing, including without
limitation, pursuant to Section 9 hereof. The provisions of
this Section 2.6(a) shall survive, and shall not merge
on, Closing; but if the Transactions are not completed, these
provisions shall not survive any resulting termination of this
Agreement.
(b) Prior to the Closing, the
Contributors shall cause the Subject Companies to use commercially
reasonable efforts to operate the Property in a manner consistent
with past practices and to conduct their businesses only in the
ordinary course and in a manner consistent with past practices.
Without limiting the generality of the foregoing and
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notwithstanding any other provision
of this Agreement (including the definition of Permitted
Encumbrances and the foregoing sentence), the Contributors shall
ensure that the Subject Companies shall not enter into any
transaction or take any action that would result in a breach of any
representation, warranty, covenant or other obligation of the
Contributors or the Subject Companies contained herein and shall
also ensure that the Subject Companies shall not create or incur:
(i) any material obligation or liability in contravention of
the preceding sentence of this Section, or (ii) any
Encumbrance securing the payment of money or other monetary
obligations which will not be discharged on or before the Closing.
In addition, following the expiration or waiver of the Due
Diligence Period, the Contributors and other Mills Entities shall
not take or permit any material action with respect to the Property
or the Subject Companies (which material action shall be deemed to
include, without limitation, the creation or incurring any material
liability or any Encumbrances) without the prior consent of the
Ivanhoe Contributee, which may be withheld in its sole and absolute
discretion, unless previously approved by or committed to by the
Ivanhoe Contributee or any of its Affiliates. The provisions of
this Section 2.6(b) shall survive, and shall not merge
on, Closing.
(c) The Contributors shall use their
best efforts to cause, on or before Closing: (i) all Mills
Affiliate Loans that are outstanding as of the date hereof to be
fully repaid, or fully transferred to one or more Mills Entities
other than the Subject Companies, in each case for an amount equal
to the aggregate indebtedness under the relevant Mills Affiliate
Loan (including all accrued interest, whether or not then due and
payable); (ii) to have the Subject Companies fully transfer
any ownership interest they have in any other Mills Entities
(“Affiliate Equity Interests”) to one or more Mills
Entities other than the Subject Companies, in each case for an
amount equal to the accounting value of such Affiliate Equity
Interest registered in the applicable Subject Company, and
(iii) the Subject Companies to have fully repaid all of the
Inter-Company Loans (including all accrued interest, whether or not
then due and payable) other than the Golober Inter-Company Loans
and the Jahold Inter-Company Loans and such Inter-Company Loans to
be fully discharged and released. If all such transfers, repayments
and discharges/releases cannot be completed prior to Closing,
then:
A. not later than the Business Day
prior to Closing, the Contributors shall deliver to the Ivanhoe
Contributee a list of all (i) Mills Affiliate Loans known to
them that will be owned by either of the Subject Companies after
Closing, if any, (ii) all Affiliate Equity Interests known to
them that will be owned by either of the Subject Companies after
Closing, if any, and (iii) all Inter-Company Loans, other than
the Golober Inter-Company Loans and the Jahold Inter-Company Loans,
known to them that will be owed by either of the Subject Companies
after the Closing, if any; and
B. the Contributors shall,
notwithstanding the Closing, forthwith thereafter, at their own
expense, cause to be completed and delivered all of the actions and
documents referred to in clauses (c) (i), (ii) and
(iii) above and the Contributors shall be entitled to the
proceeds from any repayment or transfer of the Mills Affiliate
Loans or Affiliate Equity Interests, subject to payment of all
costs and Taxes relating thereto, and the Ivanhoe Contributee shall
cause the Subject Companies to cooperate with the Contributors, at
the expense of the Contributors, in effecting any transfer of any
such property or any discharge and release of such Inter-Company
Loans, other than the Golober Inter-Company Loans and the Jahold
Inter-Company Loans, provided that such actions are effected in
accordance with
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all Applicable Laws and do not
result in the Ivanhoe Contributee or the Subject Companies
incurring any costs, losses, obligations, liabilities or other
Claims.
Notwithstanding any other provision
of this Agreement, but without derogating from
Section 9 hereof, the Contributors and TMLP shall be
responsible for, and shall fully indemnify the Subject Companies
and the Ivanhoe Contributee from, all Taxes payable by the Subject
Companies in respect of any such Mills Affiliate Loans, Affiliate
Equity Interests and Inter-Company Loans (other than the Jahold
Inter-Company Loans and the Golober Inter-Company Loans), or any
repayment, releases, discharges or transfers thereof, whether
before or after Closing, as well as all Claims relating thereto.
The provisions of this Section 2.6(c) shall survive,
and shall not merge on, Closing.
2.7. Representations and
Warranties of the Contributors .
(a) Jahold hereby represents and
warrants to the Ivanhoe Contributee that, as of the date of this
Agreement and as of Closing, except as specifically set forth on
Schedule M :
(i) Jahold is a company duly
organized and validly existing under the laws of The Netherlands
and has all requisite power and authority to carry on its
businesses as now conducted;
(ii) Jahold is the legal and
beneficial owner ( propietario en pleno dominio ) of the MX
2003 Interests and is registered as the sole shareholder of MX 2003
in the registered book ( libro registro de socios ) of MX
2003;
(iii) the MX 2003 Shares are
ordinary shares, have been validly issued, carry equal rights, are
fully paid-up and are free of any Encumbrances or third party
rights of any nature whatsoever (other than liens existing as of
the date of this Agreement securing the Hypo Debt and the Mills
Madrid Encumbrances, which liens, in the case of the Madrid
Encumbrances, shall be released and discharged at Closing). MX 2003
has not issued, nor has it undertaken to issue, any shares other
than the MX 2003 Interests, nor has it issued any bonds or similar
securities that grant to any Person the right to participate in the
share capital of MX 2003;
(iv) MX 2003 is a limited liability
company ( sociedad de responsabilidad limitada ) duly
incorporated and validly existing under the laws of Spain and has
all requisite power and authority to carry on its business as now
conducted. Since a Mills Entity first acquired a beneficial
interest in the MX 2003, MX 2003 has not engaged in any business or
operations other than developing and operating the Property, except
that MX 2003 has made loans to Mills Entities (all of which shall
be repaid or transferred to one or more Mills Entities other than
the Subject Companies as provided for in
Section 2.6(c));
(v) the shareholders register book (
libro registro de socios ) of the MX 2003 and the minutes
book ( libro de actas ) of MX 2003 are duly legalized and
up-to-date in all material respects and record all the special
powers of attorney granted by MX 2003;
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(vi) the Contributors have furnished
to the Ivanhoe Contributee unaudited financial statements of MX
2003 as of December 31, 2005 and the Interim Financial
Statements of MX 2003 (the “ MX 2003 Financial
Statements ”); such financial statements fairly present
the financial position and results of operations of MX 2003 in
accordance with generally accepted Spanish accounting principles
consistently applied and the Interim Financial Statements of MX
2003 are presented in a manner consistent with the aforementioned
unaudited financial statements of MX 2003 as of December 31,
2005, subject only to the qualification that the Interim Financial
Statements are not a full presentation of the financial position
because they do not include footnotes;
(vii) the execution, delivery and
performance by Jahold of this Agreement and the Closing Documents
to which it is a party are within its powers, have been duly
authorized by Jahold. This Agreement has been duly authorized,
executed and delivered and constitutes (and on Closing will
constitute) the legal, valid and binding obligations of Jahold
enforceable against Jahold in accordance with its terms. All of the
Closing Documents to which Jahold is a party have been (or will be
at the Closing) duly authorized, executed and delivered and as of
the Closing will constitute the legal, valid and binding
obligations of Jahold, enforceable against Jahold in accordance
with their respective terms;
(viii) subject to, in the case of
(z) below, receipt of consent from Hypo Bank under the Hypo
Loan Documents, the execution and delivery of this Agreement and
the performance by Jahold of its obligations hereunder do not and
will not conflict with or violate (x) any Applicable Laws,
order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over Jahold or MX 2003,
(y) any decision or ruling of any arbitrator to which Jahold
is a party or by which Jahold, MX 2003 or any of their assets are
bound or (z) any Lease or any material contract, instrument or
other agreement to which Jahold or MX 2003 is a party or by which
Jahold or MX 2003 is bound; and the Madrid Xanadu Name Assignment
Agreement has not been terminated, amended or assigned by MX 2003,
and the Contributors have no knowledge of anything that would
prevent MX 2003 being entitled to the benefits of, inter
alia , Sections 1(c), 2 and 10 thereof;
(ix) there are no claims, lawsuits,
litigation or administrative proceedings that have been served on
Jahold or any other Mills Entity, or (to Jahold’s actual
knowledge) threatened in writing, relating to or affecting MX 2003,
the Property or any other of MX 2003’s assets, other than
those reflected in the MX 2003 Financial Statements or disclosed on
Schedule M hereto;
(x) each of Jahold and MX 2003 is
solvent, able to pay its debts as such debts become due, and has
capital sufficient to carry on its business for the period up to
and including Closing and to complete the Transactions. Neither
Jahold nor MX 2003 has filed or made in respect of itself any
(A) petition in bankruptcy; (B) insolvency proceedings;
(C) petition for reorganization or for appointment of a
receiver or trustee; (D) assignment for the benefit of the
creditors; (E) proceedings seeking protection from creditors
or other relief in respect of obligations to other Persons; or
(F) similar proceedings; and to its actual knowledge no such
filings or petitions have been made or filed against it by any
other Person; and
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(xi) MX 2003 is the legal and
beneficial owner ( propietario en pleno dominio ) of the MX
2003 Property.
(b) Golober hereby represents and
warrants to the Ivanhoe Contributee that, as of the date of this
Agreement and as of Closing, except as specifically set forth on
Schedule M :
(i) Golober is a company duly
organized and validly existing under the laws of The Netherlands
and has all requisite power and authority to carry on its
businesses as now conducted;
(ii) Golober is the legal and
beneficial owner ( propietario en pleno dominio ) of the PDN
Interests and is registered as the sole shareholder of PDN in the
registered book ( libro registro de socios ) of
PDN;
(iii) the PDN Shares are ordinary
shares, have been validly issued, carry equal rights, are fully
paid-up and are free of any Encumbrances or third party rights of
any nature whatsoever (other than liens existing as of the date of
this Agreement securing the Hypo Debt). PDN has not issued, nor has
it undertaken to issue, any shares other than the PDN Interests,
nor has it issued any bonds or similar securities that grant to any
Person the right to participate in the share capital of
PDN;
(iv) PDN is a limited liability
company ( sociedad de responsabilidad limitada ) duly
incorporated and validly existing under the laws of Spain and has
all requisite power and authority to carry on its business as now
conducted. Since a Mills Entity first acquired a beneficial
interest in PDN, PDN has not engaged in any business or operations
other than the operation of the Property, except that PDN has made
loans to Mills Entities (all of which shall be repaid or
transferred to one or more Mills Entities other than the Subject
Companies as provided for in Section 2.6(c)
);
(v) the shareholders register book (
libro registro de socios ) of PDN and the minutes book (
libro de actas ) of PDN are duly legalized and up-to-date in
all material respects and record all the powers of attorney granted
by PDN;
(vi) prior to the date hereof, the
Contributors have furnished to the Ivanhoe Contributee unaudited
financial statements of PDN as of December 31, 2005 and the
Interim Financial Statements of PDN (the “ PDN Financial
Statements ”); such financial statements fairly present
the financial position and results of operations of PDN in
accordance with generally accepted Spanish accounting principles
consistently applied and the Interim Financial Statements of PDN
are presented in a manner consistent with the aforementioned
unaudited financial statements of PDN as of December 31, 2005,
subject only to the qualification that the Interim Financial
Statements are not a full presentation of the financial position
because they do not include footnotes;
(vii) the execution, delivery and
performance by Golober of this Agreement and the Closing Documents
to which it is a party are within its powers, have been duly
authorized by Golober. This Agreement has been duly authorized,
executed and delivered and constitutes (and on Closing will
constitute) the legal, valid and binding obligations
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of Golober enforceable against
Golober in accordance with its terms. All of the Closing Documents
to which Golober is a party have been (or will be at the Closing)
duly authorized, executed and delivered and as of the Closing will
constitute the legal, valid and binding obligations of Golober,
enforceable against Golober in accordance with their respective
terms;
(viii) subject to, in the case of
(z) below, receipt of consent from Hypo Bank under the Hypo
Loan Documents, the execution and delivery of this Agreement and
the performance by Golober of its obligations hereunder do not and
will not conflict with or violate (x) any Applicable Laws,
order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over Golober, or PDN,
(y) any decision or ruling of any arbitrator to which Golober
is a party or by which Golober, PDN or any of their assets are
bound or (z) any Lease or any material contract, instrument or
other agreement to which Golober or PDN is a party or by which
Golober or PDN is bound;
(ix) there are no claims, lawsuits,
litigation or administrative proceedings that have been served on
Golober or any other Mills Entity, or (to Golober’s actual
knowledge) threatened in writing, affecting PDN, the Property or
any other of PDN’s
