Exhibit 10.2
DISTRIBUTION, CONTRIBUTION AND
ASSIGNMENT AGREEMENT
This Distribution,
Contribution and Assignment Agreement (the “ Agreement
”), dated as of March 28 th , 2008, and
effective as of April 20, 2007 (the “ Effective
Date ”), is entered into by and among Centro NP LLC, a
Maryland limited liability company (“ Centro NP
”), Super LLC, a Maryland limited liability company (“
Super ”), Centro New Plan Inc., a Maryland corporation
(“ New Plan ”), Centro US Management Joint
Venture 2, LP, a Delaware limited partnership (“ JV2
”), and Centro US Employment Company, LLC, a Delaware limited
liability company (“ Employment LLC
”).
RECITALS
WHEREAS, the
parties hereto had effectively undertaken the transactions
contemplated herein substantially contemporaneously with the
Effective Date, and the parties desire to reflect such transactions
in this Agreement;
WHEREAS,
immediately following its acquisition of New Plan Excel Realty
Trust, Centro NP desired to make a distribution (the “
Centro NP Distribution ”) to Super of the rights to
manage properties owned directly or indirectly by it and the assets
used by its employees involved in such management of properties
(collectively, the “ Management Assets ”) and
Super desired to receive such distribution and assume the
liabilities of such employees (the “ Management
Liabilities ”);
WHEREAS, New Plan
is a party to the Second Amended and Restated Limited Liability
Company Agreement of Super LLC, dated as of October 31, 2007,
(the “ LLC Agreement ”);
WHEREAS, New Plan
owns 400,000,000 Class E Membership Interests in Super (the
“ Class E LLC Interests ”);
WHEREAS, Super
desired to distribute the Management Assets to New Plan and reduce
New Plan’s capital account in Super by $772,000,000, and New
Plan desired to receive such distribution and to assume the
Management Liabilities, pursuant to the terms and subject to the
conditions set forth herein (the “ Super Distribution
”);
WHEREAS, New Plan
desired to contribute, assign, transfer and convey the Management
Assets to JV2 and JV2 desired to receive such contribution (the
“ New Plan Contribution ”);
WHEREAS, in
exchange for the New Plan Contribution, New Plan received a
$772,000,000 limited partnership interest in JV2 (the “
JV2 LP Interests ”);
WHEREAS,
Employment LLC desired to assume the Management Liabilities from
New Plan (the “ Employee Assumption
”);
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing premises and for other good and
valuable consideration, the receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows, each to
be effective as of the Effective Date.
1.
Centro NP
Distribution . Centro NP hereby makes the Centro NP
Distribution to Super, and Super hereby accepts such distribution
and assumes the Management Liabilities in accordance with the terms
and subject to the conditions set forth herein.
2.
Super
Distribution . Super hereby makes the Super
Distribution to New Plan, and New Plan hereby accepts such
distribution and assumes the Management Liabilities in accordance
with the terms and subject to the conditions set forth
herein.
3.
New Plan
Contribution .
New Plan hereby makes the New Plan Contribution to JV2, and
JV2 hereby accepts such contribution in exchange for the JV2 LP
Interests and in accordance with the terms and subject to the
conditions set forth herein.
4.
Employee
Assumption . Employee LLC hereby assumes the
Employee Assumption, solely for purposes of consolidating the
payroll of JV2’s employees.
5.
Representations and
Warranties of the Parties . Each party, individually, hereby
represents and warrants to each of the other parties as
follows:
5.1
Power and
Authority : The execution, delivery and performance
by the party of this Agreement and the consummation by the party of
the transactions contemplated hereby have been duly authorized by
all necessary action on the part of the party. This Agreement
has been duly and validly executed and delivered by the party and
constitutes the valid and binding obligation of the party,
enforceable against the party in accordance with its terms, except
to the extent that such enforceability (i) may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditors’ rights generally and (ii) is
subject to general principles of equity.
5.2
No
Conflicts : The execution, delivery and performance
of this Agreement by the party and the consummation by the party of
the transactions contemplated hereby will not, with or without the
giving of notice or the lapse of time, or both, (i) violate
any provision of law, statute, rule or regulation to which the
party is subject, (ii) violate any order, judgment or decree
applicable to the party or (iii) conflict with, or result in a
breach or default under, any term or condition of the
organizational documents of the party or any material agreement or
other instrument to which the party is a party
